FIVE SCHOOLS OF JURISPRUDENCE

1. Naturalism
2. Positivism
3. Realism
4. Formalism
5. Critical Legal Studies
 Naturalism
- Law and morality are not separate
- Unjust law is not true law
 Law must be reflective of justice and
fairness
- Believes in ethical and moral limits to
legislative power
 Positivism
- Law and morality should be separate (thus,
what is legal may not be moral and vice versa)
 Law is valid if it is validly enacted by lawful
government or authority. Hence the unending
debate on Death Penalty Law and Abortion
Law.
- Force of law does not come from hazy
metaphysical sources.
- Law is something made according to socially-
accepted rules, ergo, laws are man-made.
Realism
- a.k.a. Functional School of Jurisprudence
- Law is determined by “real world practice” and
experience.
- Law is what lawmakers, judges, lawyers, business
people and society do with it.
- Law is not a scientific, philosophical or logical
activity but is based on human-blood and experience.
Formalism
- Law is a strict science governed by formal axioms (i.e.
statement of a self-evident or generally recognizable truth)
and principles used by judges with the use of logic in
deciding and determining the outcome of a case.
- To arrive at a decision, the abstract principles of law are
found within the wordings of the law itself.
- One without a background in the intricacies of legal
reasoning e.g. a non-lawyer would not be allowed to appear
and argue his case before the court since he has no sufficient
knowledge of the formal rules and procedures.
 Critical Legal Studies
- Law is an expression of the policy goals of the
dominant social group at a given period in history.
- Rather than the state enforcing its view on the
people, the values of the elite is made apparent
through cultural power (eg. Media) and through
subtle negotiation and influence, which would make
the lower classes unconsciously adopt the habits,
laws, norms and culture of the dominant classes (eg.
Western influence – songs, food, clothing, etc)
 NATURE OF LAW

1. Law as Rules and Process

2. Law’s Common Characteristics
Law as Rules
- Law is a set of rules
- When a dispute arises, the judge only has to find the right
rule and apply it “mechanically”, even ruthlessly (ergo, dura
lex, sex lex).
- This concept fails to consider the deeper (human or social)
factors why people violate the law and the impact of the
violation on the victim, the larger society and even the
offender.
- This is dismissive of the other aspects of human experience
since it only caters to EFFICIENCY, i.e., quick disposal of
cases from court dockets.
Law as Rules, Illustrated – In the Revised
Penal Code
Stages of Execution (Art. Penalty
6)

Consummated Felony As imposed by law (Art. 46)

Frustrated Felony 1 degree lower than consummated

(Art. 50)

Attempted Felony 2 degrees than consummated (Art

51)
Persons Criminally Liable Penalty
(Art. 16)
1. Principals. Penalty prescribed by law (Art.
46)

2. Accomplices. One degree lower than

principal (Art. 50)

3. Accessories. Two degrees lower than

principal (Art. 57)
 Attending Circumstances Effect of Circumstance
Justifying (Art. 11) No Criminal Liability

Exempting (Art. 12) Exempted from Criminal

Liability
Mitigating (Art. 13) Decreases the penalty

Aggravating (Art. 14) Increases the penalty

Alternative (Art. 15) Mitigate or Aggravate Criminal

Liability
Criminal Law as a rule defines
what acts constitute a crime
and provide for the penalty

Art. 134. Rebellion or Insurrection – The crime of rebellion or insurrection is

committed by rising publicly and taking arms against the Government for the
purpose of removing from the allegiance to said Government or its laws, the
territory of the Philippine Islands or any part thereof, of any body of land, naval
or other armed forces, depriving the Chief Executive or the Legislature, wholly
or partially, of any of their powers or prerogatives.

Article 135. Penalty for rebellion – reclusion perpetua

 Law as Process
- Law is a process and the rules are merely an
aspect of the process.
- Laws are not just statutes per se but the
whole of life experiences of lawmakers, law
enforces, lawbreakers or followers as well as
lawyers, judges and legal theorist.
- This views approaches a legal issue from
many angles: historical, psychological, economic
and social.
RA9344 as Illustration of Law as a Process
Sec. 19 (RA9344). Community-based Programs on
Juvenile Justice and Welfare – Community-based
programs on juvenile justice and welfare shall be instituted
by the LGUs through the LCPC, school, youth organizations
and other concerned agencies. The LGUs shall provide
community-based services which respond to the special
needs, problems, interests and concerns of children and
which offer appropriate counseling and guidance to them
and their families.
Sec. 23. System of Diversion – Children in conflict with the law shall undergo diversion programs
without undergoing court proceedings subject to the conditions herein provided:

(a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment,
the law enforcement officer or Punong Barangay with the assistance of the local social welfare and
development officer or other members of the LCPC shall conduct mediation, family conferencing and
conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with
the best interest of the child with a view to accomplishing the objectives of restorative justice and the
formulation of a diversion program. The child and his/her family shall be present in these activities.
(b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the
local social welfare and development officer shall meet with the child and his/her parents or guardians
for the development of the appropriate diversion and rehabilitation program, in coordination with the
BCPC;
(c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment,
diversion measures may be resorted to only by the court.
Note: Diversion is an alternative, child-appropriate process of
determining the responsibility and treatment of a child in conflict with
the law on the basis of his/her social, cultural, economic, psychological
or educational background without resorting to formal court
proceedings.

Note: Diversion Program is the program that the Child in Conflict with
the Law (CICL) is required to undergo after he/she is found responsible
for an offense without resorting to formal court proceedings.
Sec. 38. Automatic Suspension of Sentence – Once the child who is
under 18 years of age at the time of the commission of the offense is found
GUILTY of the offense charged, the court shall determine and ascertain
any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court
shall place the CICL under SUSPENDED SENTENCE, without need of
application: Provided, however, That suspension of sentence shall still be
applied even if the juvenile is already 18 years of age or more at the time
of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various

circumstances of the child, the court shall impose the appropriate
disposition measures as provided in the Supreme Court Rule on Juveniles
in Conflict with the Law.
Sec. 39. Discharge of the CICL – Upon the
recommendation of the social worker who has custody
of the child, the court shall dismiss the case against
the child whose sentence has been suspended and
against whom disposition measures have been issued,
and shall order the final discharge of the child if it
finds that the objective of the disposition measures
have been fulfilled.
Note: The suspension of the sentence of the CICL
and his/her placement under disposition program
AFFORDS the chance of rehabilitation. After
completion of the program, the CICL can be
discharged, released and integrated back to society.