Philosophy of Law

Book Notes

CHAPTER 5
ENDS AND EFFECTS OF LAW
WISDOM and LAW AS HEURISTIC

Wisdom is associated with wise people who possess positive qualities such as
a. Mature and integrated personality
b. Superior judgment skills in difficult life matters
c. The ability to cope with the vicissitudes of life

Unlike knowledge, wisdom does not decline with age.

Plato = Philosopher King – running the State requires true knowledge from a human who is wise.
A just ruler.

Law as Heuristic
Heuristic is a branch of logic dealing with discovery and finding out.
It comes from the Greek word, heuriskein, ‘to discover’, a method that provides assistance in
discovering a truth or solving a problem.

Law as Heuristic means law is viewed as a rule of thumb, or a general principle which is true in
most cases but neither accurate nor reliable in all cases.

CHAPTER 6
ENDS AND EFFECTS OF LAW
EQUITY

Law as ‘equity’ has two meanings.

1. It refers to ‘fairness’ or justice, as in treating people equally and fairly
2. Refers to the rules developed by the Court of Chancery in England in the 13th and 14th
Century.

Black’s Law Dictionary defines ‘equity’ as the recourse to principles of justice to correct or
supplement the law as applied to particular circumstances.

For Aristotle, equity or ‘epikeia’, is the middle ground between the ideal or absolute justice on
one hand and human or legal justice on the other.

Equity jurisprudence
- A formal set of legal and procedural rules and doctrines to aid even override common and
statute law in order to protect rights and enforce duties fixed by substantive law.

‘Equitas sequitor legem’ means that equity will derive the means to achieve lawful result when
legal procedure is inadequate.
Equitable Principles in International Environmental Law
1. Common but Differentiated Responsibilities
2. Sustainable Development
3. Intergenerational Equity

CHAPTER 7
ENDS AND EFFECTS OF LAW
HUMAN RIGHTS

Human rights are the ‘fundamental and inalienable rights which are essential for life as human
being.’
Human rights are a set of principles, laws, rules, and standards designed to protect and promote
human dignity.
Human rights are innate in man, the State may not deny it to anyone.

Example:
Emancipation Proclamation of 1863 amended to the US Constitution.

CHAPTER 8
ENDS AND EFFECTS OF LAW
EQUALITY

Equality is one of the most fundamental and paradoxical principles of law.

When it comes to rights and protections of the law, all are equal.

1. Common Humanity
2. Moral Capacities
3. Equality in Unequal Circumstances

Case Study: Villacencio v. Lukban

CHAPTER 9
ENDS AND EFFECTS OF LAW
EQUAL ACCESS BEFORE THE LAW

Equality before the law seeks to equalize access and opportunities to avail the benefits of law. By
implementing special legislation to a specific segment of society, the law intends to reduce
inequalities that already exist.

Example:
Taxation and Social Welfare laws
Anti-discrimination and Anti-harassment laws
Labor code seeks to dissolve unlawful dismiss of employee because of discrimination
Lookism and ageism
POSITIVE DISCRIMINATION
- Is a reverse kind of discrimination that attempts to promote equal opportunity to members
of a traditionally discriminated minority.
- The function of positive discrimination is to compensate for past cases of exploitation or
persecution by the majority group.
- Also called as ‘affirmative action’, in the US, ‘employment equity’ in Canada, and
‘reservation’ in India.

Case Study: Domestic Helpers in Singapore

CHAPTER 10
ENDS AND EFFECTS OF LAW
LIBERALISM

Concept:
Liberalism is the belief in the value of the individual human personality, and the profound
conviction that all human progress has been due to the free exercise of human powers.
- It removes all restrictions that hinders from freedom of thought and action.
- Liberalism favors representative government, freedom of speech, the press, and worship.

Laissez faire (French ‘let alone’) or non-intervention, a theory that the state should not intervene
in economic affairs except to break up monopoly.

NEGATIVE and POSITIVE LIBERALISM

Negative or ‘classical’ liberalism refers to a state of being free from constraint.
- The government cannot interfere from the lives of the people.
- The provision of Bill of Rights
Positive liberalism (or positive freedom) believe that it is not enough for the government
to leave the people to themselves.
- Government needs to adapt various types of freedom and rights for the society to
flourish.
- Housing and education, decent standard living, clean and green environment, corruption-
free election, honest government, etc.

Case Study: Chua-Qua v. Clave

- Blaise Pascal, “The heart has reasons of its own which reason does not know.”

Case Study: Contract Law and Liberalism

- Contract laws based on the assumption that humans are “free thinking individuals” the
bedrock (bottom, foundation) principle of liberalism.
- Philosophical foundation of contract law is the belief that human personality has that
innate ability to exercise his faculties without external intervention.
- Corporation are treated as individuals.
- Parties are equal when they enter into a contract.
- Once a contract is forged, it is assumed that to have done willingly, voluntarily, and are to
abide by the contract’s provisions faithfully.
 CHAPTER 11
ENDS AND EFFECTS OF LAW
MORALITY

Concept
Morality comes from Latin ‘moralis’ meaning proper behavior of a person in society.
Latin “mores” means “customs, manners, morals.”
- Ethics refers to the ‘study of morals’; Greek, ethike philosophia “moral philosophy”
- Greek, Ethos “moral character, disposition, habit, nature, custom.

Moral conduct involves:

a. Motive and intention to act morally, made by;
b. A person who chooses to do such action
c. The moral choice must be compelled; it must be voluntary or even desired.

Morality and Law

While Law focuses on external behavior, morality looks into inner motives and intentions
of a person.

Case Study: Genocide in Rwanda

Five differences between legal and moral duties.

1. Legal duties concentrate on external behavior, while moral duties concentrate on the
internal processes of intention, motive and conscience.
2. Legal duties are accompanied by corresponding rights.
3. If somebody violates a legal duty, he or she is punished by the state.
4. Law is formulated by an easily identifiable authority.
5. The legal verdict in a given situation is black and white, regardless of how complex the
issues were.

Morality and Good Manners

Etiquette which is the doing good manners is sometimes regarded of as a component of
morality. It covers rules of behavior which are more superficial and less serious than those
demanded of morality.

Case Study: Henry David Thoreau and Martin Luther King

CHAPTER 12
KINDS OF LAW

A. Overview
According to Aquinas, there are generally, two types of law according to origin: divine
and human law.
Divine Law emanates from God, sub-classified into eternal law and divine positive law.
Human Law emanates from man with the aid of reason. Can also be classified as natural and
positive.
- Natural laws (priori or pre-existing) principles and rights comes from God (theist),
reason (non-theist), or both.
- Positive laws (posteriori or existing after) are posited; promulgated at a particular time.
- Kant believes that natural rights are ‘innate rights’ which belongs to everyone by nature,
independent of all juridical acts of experience.
- Positive rights are ‘acquired’ and is ‘founded upon juridical acts.’

B. Divine and Human Law

Divine Law
- Also known as eternal law.
- Aquinas believed that the world is ruled by God, ‘Divine Providence’ and that the
universe is governed by ‘Divine Reason’
- Because Divine Reason is not a subject to time, hence it is called eternal law.
a. Human Reason, an image or reflection, however imperfect, of the Divine Mind
b. Divine Revelation, the Ten Commandments and other laws and principles revealed by
the prophets.

Theodicy is the philosophical study of God using reason.

- Rational and systematic study of religion and religious truth.
Theology is the study of God through Revelation and the Holy Books.

2 Types of Divine Law

a. Eternal Law – laws that are implanted by God at the time of creation.
b. Divine Positive Law – laws promulgated by God through the Prophets as found in the
Bible.

Human Law
- Aquinas believed that human laws are creations of the ‘secondary governors’ to the
‘Chief Governor’ which is God.
- Humans are subject and must answer to the Divine
- Human law must conform to eternal law

C. Natural and Positive Law

Natural Law
- Believes that the foundation of what is ‘true’ and ‘good’ law can be accessed through the
aid of human reason.

Maxim lex iniusta non est lex means ‘an unjust law is not a true law’

Aristotle is believed as the father of the natural law tradition.

- Ius naturale or ‘natural right’ or ‘natural justice’

 Hegel
Natural law (laws of nature) – govern men in the state of nature
Positive law (laws of the land)

 Aquinas
Natural laws come from God
Positive laws are made by man

2 Principles of natural law

a. Audi alteram partem meaning the right of the person concerned to be heard, due-process
b. Nemo judex in causa sua meaning one should not judge a case in which he himself is
interested

Lord Hudson in the Ridge Case (Natural Justice)

1. The right to be heard by an unbiased tribunal
2. The right to have notice of charges of misconduct
3. The right to be heard in answer to that charge.

Case Study: Kripak Case

Positive Law
- Originates from an act of human legislation, using reason.
- Being a product of human creation positive laws include the element of choice and free-
will, as well as the freedom to change the law when the need requires.

Aquinas
- “Particular determination” devised by human reason.
a. Civil law (jus civile) – old law for Roman citizens, composed of statutes and customs
having the force of law. Largely legislated law.
b. Law of nations (jus gentium) – law for non-Roman citizens; foreigners and subjects.
Made by judges from jus civile, but applies rules of law common to all nations. Used
in the modern sense of “law of nations” which is “international law.”

D. Criminal and Civil Law

1. Criminal Law
- Deals with acts or omissions committed against the community for which penalties are
imposed by the state.

Legal Characteristics of crime

Classification of crimes
Elements of crime
a. Actus Reus – guilty act
b. Mens Rea – guilty intention
c. Causation – cause of the specific injury complained of.

Novus actus interveniens – a new intervening act must occur before the chain of causation can be
broken.
 2. Civil Law
- Relates to private individuals and institutions.
- Designed to regulate the people’s private relationship.
- May pertains to family, property, inheritance, or contractual relations.

Criminal law defines offenses against the community at large

- is concerned with wrongs committed against the entire society
- Criminal charges have the “people of the Philippines” as plaintiff. Its aim is to maintain
public order and safety.

Civil law is concerned with rights and remedies involving private persons.

Common and Civil Law Systems

a. Common law
b. Civil Law

Advantages and Disadvantages

Role of the Judge in Common and Civil law systems

a. Adversarial system
b. Inquisitorial system