Concept Definition
The systematic study of general and fundamental questions concerning topics like existence, reason,
Philosophy
knowledge, value, mind, and language.
Law A system of rules and guidelines which are enforced through social institutions to govern behavior.
Philosophy of A branch of philosophy that examines the nature of law and its role in society, including the
Law relationship between law and morality, the limits of legal authority, and the nature of legal reasoning
What is the role of philosophy in understanding the law?
Philosophy of law helps us critically examine the foundations, concepts, and methods of the legal system. It allows us to
question the assumptions underlying legal rules and practices, and to consider alternative perspectives on the nature
and purpose of law
How can the study of Philippine philosophy of law contribute to the development of the legal system?
Philosophy of law can help legal scholars and practitioners better understand the historical, cultural, and ethical
foundations of the country's legal system. It can inform discussions about legal reform and the adaptation of the law to
changing social conditions. By critically examining the assumptions and values underlying the law, the philosophy of law
can also promote a more reflective and responsive legal system that serves the needs of the Filipino people.
Why is the philosophy of law important?
The philosophy of law provides a framework for understanding the principles underlying legal systems and their impact
on society. It encourages critical thinking about justice, rights, and the role of law in promoting social order
CHAPTER I - THE CASE FOR LAW
Lawyers and philosophers can be counted among the most misunderstood species. Many lawyers are miscreants who
murder the truth, who twit the law, who defend the sum of society, and who are good at torturing the English language.
Postmodernists say that law is just a self aggrandized construct that perpetuates itself by citation after citation of
maxims. If it lives by citation, it would die by non-citation. Even if we need to live by some crude law, lawyers are held to
be unnecessary.
As society advances, must law also advance to become more complex and intrusive?
The answer will depend on the political tendencies of the law. The Socialist party-line is “statism”: more State
intervention and welfare systems to have an equal and stable society and economy. The state, in order to carefully plan
society, must through law spread its hold from womb to tomb.
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Should lawyers cast the philosopher’s stone?
The practice of law and itself is a practice of philosophy. “Jurisprudence,” often associated with “case law,” in fact
means the theory and study of law.
From the Latin juris and prudentia or “practical knowledge of the law,” jurisprudence is supposed to explain the
nature, theory and development, and objective of a law. It is to know the wisdom behind the law.
Through jurisprudence, a law earns more credulity and force, as one understands not only the what of the law, but the
how and why of it.
What distinguishes an explanation or ratio of a case and an exposition of legal philosophy in a case is that the latter
explain the underlying concepts, theory, and evolution of a legal dispute.
CHAPTER II - LEGAL ISSUES AND THEORIES
Law
– Connotes binding communal rules – the do’s and the don’ts.
– a rule of conduct, just, obligatory, – formulated by Legitimate power for common observance
and benefit.
Classification of Law:
Jural or human law refers to sanctioned or enacted law such as statutes, case laws, normative rules, and
percepts.
Non-jural or meta-legal is not anchored on human promulgation, such as divine law, natural, and physical law.
law
Classical Elements of Law:
Reasonable ordinance Law is a rule of human acts, commanding man to act or refrain from acting. The Measure of
(rationis ordination) human acts is human reason, for it is by reason that we perceive and put order into things.
A reasonable law is necessary, useful, clear in expression, and adapted to place and time. The people are moved to
follow the law when it is reasonable. If the law is unreasonable, it would only invite define and dissent.
The Common Good Principles of basic humanity transformed once purely ethical norms into legal claims. This
(bonus communis) - does not mean that all ethical norms should be law, but only those rules concerning man
with his fellow man.
The common good need not be the utilitarian ethic of the “greatest happiness for the
greatest number.” Rather, it is the good of everyone. It bears the common aspirations of
all, not just the majority.
As Aquinas suggested, the lawmaker should frame the law according to how the subject
matter commonly occurs in the majority of instances. It is not expected that the legislator
should assume every single case possible, but should leave room for exceptions when the
law need not be strictly applied.
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Promulgation The final step in the law-making process is its notice to the public. The public should be
able to take notice of the law, whether by publication or by hear yeas as a matter of due
process.
Legitimate Authority Due promulgation must come from a competent authority, not from some private individual
or public official unauthorized to enact a law. Law must be issued by one who takes charge
of the community, who wield the power to promote the common interest.
Modern Standards for the Rule of Law
The “Eight Routes of Failure” for any legal system by Lon Fuller:
1. The lack of definite rules or law, so that disputes have 2. Failure to publicize or make known to the affected party
to be decided ad hoc. the rules.
3. Unclear or obscure legislation 4. Retroactive legislation.
5. Contradictions in the law. 6. Demands that are beyond the power of affected parties to
observe.
7. Unstable legislation or frequent changes in the law. 8. Discrepancies between adjudication/administration and
legislation.
What constitutes “rule of law” in the modern international arena, according to United Nations?
The rule of law refer to a principle of governance in which all persons, institutions and entities, public and private,
including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently
adjudicated, and which are consistent with international human right norms and standards.
Species of Human Law
1. As to whether a right or a procedure is given:
Substantive Law establishes rights, duties, and corollary prohibitions.
Remedial or Procedural prescribes the manner of administering, enforcing, and appealing, amending, and using
or Adjective Law legal rights and claims.
2. As to scope:
Public or Political Law concerned with the struts of government, relationship between the individual and the State.
Private concerned with the rules governing the relationship of individuals.
Criminal violation of public order through punishable acts or omissions
Civil the rules of civility such as on the property, marriage, succession, contracts and torts or
private wrongs that result in damages.
Mercantile deals with artificial personalities such as corporations and the management of business;
that which regulates commercial transactions.
3. Terms:
Civil Code System refers to a legal system based on coded laws. Laws are codified through parliamentary
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statutes, following the tradition of compiling rules.
Common Law System is based on case law or judge-made law that relies on precedents set by judges in a court
case.
Sharia law (“the way to follow”) is based on the moral precepts of Islam.
Main Issues in Law
How does one become a legal authority and is authorized to make laws?
According to Max Weber, in Politics and a Vocation, there are three (3) ways how authority is established itself in
society
CHARISMA the personal ascendancy that an individual gains in society through his passion and
determination for a cause or a mission, and his success gives him an aura of legitimacy.
TRADITION is where the authority from a leader, due to his magnanimity or extent of influence in a
society, is passed on his successors of heirs.
Society has made the leader its center and identity, and will want to keep him alive through
his descendants who are supposed to bear his qualities.
LAW though legal dominion is impersonal. The officers operate through institutions, under given
terms, periods, and conditions. Laws are legitimate if they are enacted according to rules or
procedure and individual merit.
Should Law be coercive to be enforceable? Can rough laws spare the rod?
Anarchists think that any form of violence or coercion is wrong and offends morality; that the only real
law must be consensual, which appeals to the conscience and free will of constituents, not
to threaten punishment.
Followers of Confucius the ingredients to prevent and arrest crimes are not stern punishments but a sense of
shame for misbehavior, cultivation of virtue, education on right and wrong, respect for
authority, and the elderly showing good examples.
Social contract think that constraint is necessary and moral, since society is presumed to have given
theorists consent to follow the law in establishing a Constitution and the State. Through election and
suffrage, citizens are able to renew their consent and to amend the terms through the
representatives they vote for. Anyone who does not wish to follow the law can opt to leave
the State, be a fugitive, and live in a lawless society, if there is any. Shape up or ship out.
Sigmund Freud observed that reward and punishment are needed for discipline; the way a child needs to be
trained, so does society. The machinery of regular enforcement, police presence, etc.
Under international law states are tempered from using force against each other since every member of the
international community is by principle given equal status and consideration in domestic
policies. States are presumed to be civilized, matures, self-determining, and independent.
Law and Mores
What is legal is not necessarily moral and what is moral is not necessarily legal. A moral obligation does not establish a
juridical or legally enforceable tie, still, there is a relation recognized by law itself between law and morality. In fact,
moral customs are among the sources of law.
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“Laws and morals have a common ethical basis and spring from the same source“ - Tolentino, Social Conscience
Contractual obligation is considered void when it has an illicit cause. It is illicit if contrary not just to law, but also to
“morals, good customs, public order and public policy.”
DISTINCTIONS between RELIGIOUS and SECULAR morality:
Religious morality - concerned with private matters and preferences, such as sexuality and the censorship
of ideas and beliefs
- ultimate basis is the word of God as expressed though a sacred medium
Secular morality - concerns itself with public order and affairs.
- is associated with “natural law morality” according to common-held principles of
reason, justice, and equity, deemed as “natural” aspirations of men.
Egalitarianism
The statement that “all men are born equal” refers to one’s humanity, meaning, we are all equal in terms of being
human, and the rights pertaining to the fact of being human, regardless or status.
This does not mean that all men are born in equal condition and will live equally. Special arrangements, however, may
be made to eliminate or minimize historical or cultural disadvantages resulting from conditions that we do not have
choices, such as gender, being born to poverty, handicaps, race, religion, or color.
Equality before the law is a universal enfranchisement so that everyone will at least have the “equal chance” to develop
as any other human will do. Life is not fair indeed, but since man, despite the inequities of life, aspires for
fairness and a more just society, he must make equality a goal.
That “men are created equal” means “equal with certain unalienable rights, among which are life, liberty, and the pursuit
of happiness.”
A theory of Justice, John Rawls proposed that we should do a “reflective equilibrium” whenever we make laws or
decisions.
LEGAL THEORIES
Legal Theory is an inquiry into the nature of law. When one develops a legal thesis, or write arguments or opinion, it is
important to know from what theory one is dissecting a question of law.
1. The Teleological or Looks into the principles, purpose, and end (telos) of law. It goes to the question of the why
Natural Law Theory of the law.
Natural law is an example of “normative jurisprudence,” which evaluates the purposes or
norms behind the law. According to natural law, nature is how people normally behave and
is expected to behave. Human nature, in particular, is rational.
Finnis wrote that there are seven (7) “basic goods” natural to man: life, knowledge, play,
aesthetic experience, sociability (friendship), practical reasonableness, and religion
(transcendence).
2. The Positivist Theory Life itself has rules, and we call them law. We follow the law because it is the law,
period. This is what the positivist school maintains. The rules themselves make the cut
Positivists are positive on what the law “posits” by the authority given to the State or by
socially accepted rules. Also known as “the command theory,” positivism highlights
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obedience to the content and expression of the law
with the adage “dura lex, sed lex” (the law may be hard, but that is the law) and “quad
principi placuit legis habet vigorem” (whatever pleases the prince has the force of law)
3. The Interpretivist or What the law means is what the judges of the law would read it to mean.
Constructivist Theory
As conceived by Ronald Dworkin – points that the law is more than explicitly adopted
rules. It has merits or principles behind them that can be “interpreted” or “construed” by the
courts.
There are two (2) dimensions of legal interpretation:
- Formal dimension looks for logical consistency between principles and past
decisions;
- Substantive dimension looks for principles that best “explain” or “justify” the law,
which is construed as having a moral rights-base dimension. It is the “integrity of
the law” that entitles it to a claim to out obedience.
4. The Get-Real Theory Sometimes labeled as “pragmatic jurisprudence,” focuses on these human realties that are
often overlook by hard law, technicalities, and abstract policies.
It tells the law and law practitioner to get real – if law reflects practical experience.
Justice Oliver Homes Jr. was an avowed proponent of legal realism. He argues on “the
bad man model,” that in crafting a law or deciding always think from the perspective of the
bad man, not the good man as the bad man, at the end of the day, cares only for the
consequences of the law, of what the courts will do to him, and the rest are irrelevant.
Law is determined by the actual practices of courts, law officers, law enforcers; by real
word practice. Human factors and realities are unavoidable in hard cases, and judges must
be able to take these into consideration.
5. The Critical Theory The main tenet of this theory is that the law has been the means to enshrine and coercively
impose the wishes of the dominant group of institutions.
Questions the law’s assumptions, such as the assumption that the people are fee, and that
the market is free.
It is associated with subversives as it aims for “deconstruction” of the law and used the
“hermeneutics of suspicion” to advance marginalized causes.
FORMALIST SCHOOL OF INTERPRETATION:
1. The Once-Upon-a- The law is not simply made; it is in the making. It rolls a story stuck in real events
Time Approach
The historical school holds that the law has a past and a progression. It develops in a
gradual and evolutionary process and cannot be separated from its national or indigenous
character – from clannish, to folk beliefs, to landmark events that shaped a nation.
Law operates in a specific language, impressed by cultural beliefs, traditions, customs,
temperaments, and the common experiences and consciousness (geist) of a people. The
law is therefore the product of a national genius.
2. The Functional or The law is both a means of social control and social advancement.
Sociological Approach
The sociological school looks into law as a measure for behavioral conformity and social
engineering.
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The theory is called “functional” by analogy to biology, where every cell has different
functions to maintain a healthy organism so that each one’s different pursuits are good to
the whole society
The approach justifies “judicial activism” and “judicial legislation” and is related to the
Realist Theory.
3. The Economic Judge Richard Posner: took the lead in “economic jurisprudence” and “consequentialism,”
Approach For him, the purpose of the law is to increase the balance of happiness in society through
“wealth maximization.”
Law appropriately take its cue from economics and plays a larger role in modern legal
system.
4. Forms-and- Legal formalism or conceptualism holds that the law is a strict science governed by formal
Fundamentals axioms, legal principles, and rules of logic.
Approach
Formalism is also referred to as “textualism” or the “plain meaning” approach to the law and
“originalism” or the “original meaning” approach to the Constitution. Thus, when the
meaning of the law is not clear, the Court may call the assistance of an amicus curiae, an
expert of the law, to expose the real intent of the law.
Formalism adheres to ethical constraints on a judge from deciding or opining on what the
law should be or should mean other than what the law says or does not say.
Originalism says that judge should only “interpret” not “construct.’
5. Practice Theory Philip Bobbit, wrote that the different approaches to law, or modalities, have their own
uses. One should know how and when to use them in making arguments.
The adoption of a particular mode leads to a different outcome or case opinion. Each mode
has its own “grammar” and its own “logic.”
a. historical, which must be used when the intention is to decipher what was really meant
by the framers of the law.
b. textual, in looking for what the law simply declares or denies and how it can be
interpreted in contemporary times.
c. structural, inferring rules from structures and mandates.
d. doctrinal, applying rules generated by precedent.
e. ethical or moral, appealing on the ethos or ideals of a government (teleological).
Finally, prudential or according to exigencies and the calculus of costs and benefits.
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Philosophy of Law / Perfecto Fernandez
PHILOSOPHY AND LAW
Philosophy deals with thoughts rather than external action.
Refers to law as a special branch of learning and inquiry, in the sense of a legal system.
4 Central Problems
1.) What is the nature of law? 2.) What is the distinguishing criterion of law?
3.) Does an unjust law remain a valid law? 4.) What are the ends or ultimate goals of law?
Nature of Law
– Expression of ideas in Philosophy
Empirical propositions Based on sense experience. The Conveyance of a fact and is subject to factual
verification.
Example: the Sky is blue
Normative propositions Function as guides or norms of human conduct. Conveyance of a command. There
is a value judgment.
Example: Thou shalt not kill.
Example: Honesty is the best policy (this is a normative proposition hidden in an empirical-like form.)
Once you analyze it, according to the article, it comes out as a value judgment, since it is the judgment of one person to
state that honesty is the best policy, which means that the saying “Honesty is the best policy” becomes BE HONEST!
Legal propositions are neither a part of science nor can they be validated by science. Rules of law are Normative in
character.
Distinguishing Criterion of Law
– how we distinguish rules of law from rules that are not law. We use the notion of legal validity.
Elements of Identification
1.) Element of Coercion by sovereign authority 2.) Norm of validity by which rules belonging to system are identified
Validity is a relational concept, the problem in every case is whether or not the rule in question is valid in relation to a
particular system. Thus the question of validity can’t be solved in abstract, but only in context of a particular legal
system.
Criteria of identification = Rules of recognition (according to Hart)
Example 1. Judicial adoption – a secondary rule of recognition
Example 2. Approval of a law by the president – a rule of recognition
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Unjust Law as valid law
Positivist view of law Affirms that rules of law remain law, regardless of their moral invalidity
Natural law theory Maintains that law must conform to basic moral standards and that a law which is unjust is
not a law.
When we call a law unjust and are criticizing a rule in the legal system, we do so on the basis of a rule in a different
system, a system of morality
Moral Standards as shown by philosophical analysis are essentially judgments of individuals, hence subjective and
variable.
Perfecto Fernandez believes that natural law doctrine is based on fallacy, where a moral norm may actually be an
imperative/normative command and so is not based on sense experience/empirical proposition.
Example: Honesty is the best policy – “It is my judgment that there are good reasons for being honest and it is my
desire that you accept these reasons and BE HONEST.”
Philosophy vindicates the practical grounds for rejecting conformity with moral standards as a requirement for legal
validity.
Thus, it is language that gives preferences (like how one person thinks honesty is the best policy) a semblance of
concreteness and universality.
Moral principles entail:
1.) Private and individual judgments as to what is desirable
2.) The desire that others conform to judgments in their conduct. (like the honesty example)
Ends of Law
For the present and foreseeable future, law has the modest but crucial task of providing the social conditions of security
and liberty essential to human achievement.
