000 legal theory reviewer b2014 professor sison-annotated

Domino, Gutierrez, Leao 1

Legal Theory Reviewer B2014 Professor Sison

Head: Jen Domino

Members: RJ Gutierrez, Ofelia Leao

Table of Contents

I. Introduction a. Abstract__________________________________________________________________________________________________________________3 b. The New Encyclopaedia Britanica, Western Philosophy of Law_______________________________________________________________________3 c. Fernando, The Relevance of Philosophy to Law___________________________________________________________________________________4 d. Adler, The Four Dimensions of Philosophy_______________________________________________________________________________________4 e. Soper, Making Sense of Jurisprudence___________________________________________________________________________________________4 f. Hart, Persistent Questions____________________________________________________________________________________________________5 g. Lloyd, Preface and Conceptual Thinking in Law____________________________________________________________________________________5

II. The Nature of Law a. Abstract___________________________________________________________________________________________________________________6 b. Fernandez, Philosophy and Law________________________________________________________________________________________________6 c. Wolheim, The Nature of Law__________________________________________________________________________________________________7 d. Lloyd, Is Law Necessary?_____________________________________________________________________________________________________7 e. Lloyd, Law and Force________________________________________________________________________________________________________7 f. Lloyd, Law and Freedom______________________________________________________________________________________________________8 g. Lloyd, Law and Custom_______________________________________________________________________________________________________9

III. Natural Law a. Abstract___________________________________________________________________________________________________________________9 b. Classical Natural Law________________________________________________________________________________________________________9 c. Modern Natural Law________________________________________________________________________________________________________12 d. Law and Morals___________________________________________________________________________________________________________13 e. Law and Justice____________________________________________________________________________________________________________14

IV. Legal Positivism a. Abstract_________________________________________________________________________________________________________________16 b. Lloyd, Legal Positivism______________________________________________________________________________________________________17 c. Austins Concept___________________________________________________________________________________________________________17 d. Murphy and Coleman, The Nature of Law_______________________________________________________________________________________17 e. Harts Concept____________________________________________________________________________________________________________18 f. Hart, Law as the Union of Primary and Secondary Rules____________________________________________________________________________18 g. Hart, The Foundations of a Legal System________________________________________________________________________________________20

V. Critique of Legal Positivism and Natural Law a. Dworkin, Is law a System of Rules?____________________________________________________________________________________________20


VI. Sociological Jurisprudence a. Abstract_________________________________________________________________________________________________________________20 b. Lloyd, Law and Society______________________________________________________________________________________________________21 c. Legal Realism_____________________________________________________________________________________________________________21 d. Llewelyn, The Bramble Bush_________________________________________________________________________________________________22 e. Law from the Policy perspective______________________________________________________________________________________________22 f. Reisman, A Theory of Law from the Policy Perspective_____________________________________________________________________________22


I. Introduction a. Subject Matter

i. Abstract The question that legal theory seeks to answer is, how do we know

that what we are studying is law? It is, however, impossible to raise such an inquiry without certain assumptions. The subject matter, as a starting point, assumes that: (1) Law is part of reality; and (2) we, human beings, have the capacity to know what this reality is. Hence, the goal of this subject matter is to show: (1) the process of how human beings know of reality (Theory of Cognition); and (2) what is this reality called law as different from non-law (Definition of law, i.e., law devoid of its non-essential characteristics).

These goals, the Theory of Cognition and Definition of Law, shall be the subject of succeeding sections of this reviewer. But before that, let us first proceed with some preliminaries on the subject. The purpose of this introduction is to provide a backdrop of what one will eventually learn on detail on the next succeeding subdivisions of this reviewer.

This introduction has two parts: (1) Legal theory in general; and (2) important points and notes on some of the articles discussed in class. For the first part, one will be introduced to the subject matter from a macro perspective. Its definition, its different names, its purpose, and the main schools of thought (a subject that will be discussed in greater detail in later sections). For the second part, one will be given some pointers on what they ought to remember from each of the important articles discussed in class. The technique employed to supply this is based not on the article presents itself, but on how the professor has made sense out of it. Hence, the second part is merely a reiteration of what the professor said in class, but in a more systematic and formal manner.

ii. In General Law in the Abstract concerned with the essential characteristics of Law. Different names of the Subject Matter: 1. Jurisprudence 2. Legal Philosophy or Philosophy of Law 3. Law in the Abstract 4. Legal Theory Legal Theory (Law 117) The main schools of jurisprudential thought, with emphasis on the philosophical influences on the varying conceptions of ideal

law and material law, and their impact on law as an instrument of procedural and substantive justice (UP College of Law Student Manual). Legal Theory is for the refinement of our mind (Sison 2011). The Main Schools of Jurisprudential Thought 1. Natural Law (Revealed by the Divine; discoverable by Reason) a. Classical Natural Law (Stoics St. Thomas Aquinas)

b. Modern Natural Law (Natural Rights Theorists: Hobbes and beyond) 2. Legal Positivism (Positum - laid down by human beings) a. Imperative Theory of Law (John Austin) b. Rule Theory of Law (H. L. A. Hart) c. Pure Theory of Law (Hans Kelsen) d. Sociological Jurisprudence

i. Legal Realism (John Chip Gray, Roscoe Pound, Karl Llewelyn, Oliver Wendell Holmes, etc.) ii. Law from the Policy Perspective (W. M. Reisman, Harold Lasswell, A. Scrieber)

e. Principle Theory of Law (Ronald Dworkin)

iii. Important Points and Notes on the Articles 1. The New Encyclopedia Britannica

Philosophy of law is concerned with the formulation of concepts and theories to aid in understanding the nature of law, the sources of its authority, and its role in society.

Three Major Subdivisions of Philosophy of Law 1. Analytical Jurisprudence concerned with articulating axioms, defining terms, and prescribing methods that best enable one to view the legal order as a self-consistent system and that maximize awareness of its logical structure. 2. Sociological Jurisprudence concerned with the actual effects of the law upon the complex attitudes, behavior, organization, environment, skills, and powers involved in the maintenance of a particular society. 3. Theory of Justice concerned with the evaluation and criticism of law in terms of the ideals or goals postulated for it.

Note:

The professor discussed that these three schools of law correspond to the major schools of jurisprudential thought, where, Theory of Justice refers to


Natural Law, Analytical Jurisprudence refers to Legal Positivism, and Sociological Jurisprudence refers to Legal Realism.

2. Fernandos The Relevance of Philosophy to Law

The law is not a self-contained system.

Philosophy is a meta-discipline of looking at law from above. It serves to clarify matters that law cannot answer for itself.

Professor Fernando viewed philosophy as a method of conceptual analysis and rational justification. As a method of conceptual analysis, it engages in the logical clarification of concepts. It abstracts the essential characteristics of law and differentiates law from non-law. This method not only serves the negative and therapeutic of philosophy which is avoiding linguistic confusion, but also philosophys positive and constructive purpose of making clearer sense of the world and reality.

As a method of rational justification (similar to the method of logic), philosophy is seen as a skill or an activity engaged in reasoning; but rational justification is used mainly on normative issues such as law. It is a method whereby one provides reasons for ones conclusion.

Note: The professor focused on the idea that law is not a self-contained system and that it requires the aid of philosophy in order to be understood. This relationship between law and philosophy will also be discussed later in the article of Professor Perfecto Fernandez on Philosophy and Law. The professor also emphasized on the process of abstraction. He said that abstraction requires both the aid of logic (genus et differentia definition) and psychology (Theory of Cognition). Abstraction is of a second order knowledge, where the goal is to conceptualize reality by defining it. In our case, to abstract law is to conceptualize it and to remove all its non-essential characteristics.

3. Adlers The Four Dimensions of Philosophy

4 Dimensions of Philosophy: 1. First order knowledge

a. Metaphysical questions about being; existence of God; and the possible; human mind; human nature; etc. b. Moral questions about moral obligation in relation to justice, liberty, equality, democracy, socialism.

2. Second order knowledge a. Understanding of ideas as objects of thought

b. Understanding of subjects different branches of knowledge, the arts, and other learned professions.

Tests of Truth: 1. Pragmatic experience as basis; successful outcome as the test. 2. Generalization theory of falsification (e.g., to know the truth/falsity of the statement, if all crows are black, one must only look for a different colored crow) 3. Logical Premises -> Conclusion 4. Coherence test: consistency with the system or the coherence with the whole. Note: The professor did not really delve into this article. It is, however, advantageous for the reviewee to know the difference between first order and second order knowledge in order to make sense of the Note on Abstraction in The Relevance of Philosophy section. As regards the Tests of Truth, the professor only mentions three: (1) Correspondence (if the statement corresponds to reality); (2) coherence (if the statement is consistent with the system); and (3) pragmatic (that which works).

4. Sopers Making Sense of Jurisprudence Two dimensions of Legal Theory: 1. As to audience

a. Outsider is concerned with distinguishing law from other systems of social control and seeks to characterize and distinguish among legal systems. This refers to knowledge of the world by describing and understanding phenomena. b. Insider is actively engaged in the practice of law who wants to identify, apply, or get advice about legal norms. He has practical concerns and wishes to know the consequences of his conduct.

2. As to the goal of the study (motivation for undertaking legal theory) a. Outsider to know the difference between legal systems and other systems of control.


b. Insider to know the consequences of his conduct; what one ought to do.

Note: The professor summarized this article by saying that: (1) Outsiders study law, i.e., undertake legal theory, for knowledges sake; (2) Insiders study law for obediences sake.

5. Harts Persistent Questions

Diseases of language: ambiguity and vagueness. This is more manifest when the words used are couched in general terms.

Borderline cases are cases where no legal provision can be applied; or where there is an applicable legal provision but it can have two or more inconsistent interpretations.

There exist persistent questions in jurisprudence because of the existence of these two the diseases of language and borderline cases.

Three recurrent issues: (1) How does law differ from and how is it related to orders backed by threats? (2) How does legal obligation differ from, and how is it related to, moral obligation? (3) What are rules and to what extent is law an affair of rules?

Definitions (in logic, i.e., genus et differentia) no longer suffice (inadequate), the goal is to explain.

Note: The professor noted that because language is both open-textured (one cannot know which is in there and which is not) and open-ended (one cannot ascertain the extent of word), law, as a product of language, becomes difficult to understand. This is the reason why Hart said that definitions no longer suffice. The law, as an object of reality, can no longer be subject to a mere definition. The goal, according to Hart, is to explain law. And this has been the mode employed by theorists starting from early legal positivist, like Austin. As for borderline cases, the techniques for solving it will be further discussed in the subsequent sections, particularly on the discussion of Dworkin.

6. Lloyds Conceptual Thinking in Law

Law resembles a kind of a game in that any such game employs a number of general concepts, or notions which are conventional in the sense that their meaning and function are arbitrarily defined by the rules of the game, but which can operate meaningfully within their particular linguistic framework.

The scope of law entails a vastly more complex system than that of any game, having regard to its ramifications over the whole social life of the community.

Also, law develops and changes in a constant process of flux whether by new legislation or by the gradual adaptation of customary judicial or administrative rules.

Many fundamental legal concepts are legal creations with vitality of their own.

Dangers of Rigid Conceptualism: When lawyers have breathed meaning and purpose into their legal concepts and found these to be good, these concepts tend to develop a life of their own which may carry them on into many and unexpected paths by their own vitality and by what are felt to be the laws of their own inherent logic. Once these concepts are crystallized within a legal system, the courts may decide new cases on what they conceive to be the logical nature and requirements of particular legal concepts. This results in an undue rigidity and inability to adapt to new social situations.

Notes:

The professor summarized this article by stating that law can be considered as a game with rules for the use of words. The concept, as denoted by words, is a product of definition. Concepts are used to create propositions. These propositions are then used as premises to arrive at various conclusions. The whole process from defining the concept to arriving at a conclusion is called reasoning.

It is the rules that set the directions of the game. It is a list of to do or not to do. The rules also provide for consequences in case of breach. These rules are the ones that make ones action meaningful (as in a game of chess or basketball).

b. Theory of Cognition (*REFER TO THE DIAGRAM)


Notes: Abstraction the process by which essential characteristics are derived from particular objects of reality. Two ways to define a word (as per Betrand Russell) 1. By pointing, i.e., ostensive definition. 2. By looking at the dictionary, i.e., lexical definition. Two kinds of knowledge 1. Sense-knowledge, i.e., apprehension (particular objects) 2. Intellectual knowledge, i.e., abstraction (concepts) Moderate Realist Theory of Epistemology: A Model Mind -> Will -> Action -> Conduct -> Habit -> Convention -> Customs

II. Nature of Law a. In General

i. Abstract After the preliminaries, we will now proceed to the discussion of some

elements of law. The goal in this section is to ascertain whether or not such elements are essential in the understanding of what law is.

Before proceeding with this analysis, however, we will first look into some of the criteria of knowing whether an element of law is essential or not. As a guide, we will use the standards put forth in the articles of Professor Perfecto Fernandez on Philosophy and Law and Professor Richard Wollheim on The Nature of Law.

Afterwards, we will examine whether the law is necessary, and how the law is related to force, freedom, and customs.

It bears remarking that regarding the necessity of law, the nature of man is examined together with its impact with the conception of law. It is argued that whether mans nature is good or bad, law will still be necessary. Although there are contentions that the law infringes upon the actions of those subjected to it. There is also the relationship of law and force, and freedom and customs.

As regards the relationship between law and force, although it is argued that it is not necessary to coerce people to obey the laws, coercion may still be an indispensable part of an effective system of law.

However, there are still certain fundamental principles or freedom that cannot be unreasonably infringed. Lastly, similarities and differences

between laws and customs lead to the conclusion that the substantial difference between the two is the lack of machinery on the enforcement of the primitive customs.

1. Perfecto Fernandez Philosophy and Law Philosophy and Law: First Question: Is coercion an essential element of law? No, because we recognize the existence of directory laws, which are laws that may or may not be obeyed. This does not mean, however, that ALL laws should have no mandatory force; otherwise, problems relating to order may arise. In fact, the very concept of law entails resort to physical power. Second Question: What is the nature of law? To answer this, there must first be an examination of the two kinds of statements: (1) Empirical, which are statements of facts (descriptive); and (2) Normative, which are statements that prescribe what ought to be done or what not to be done by human beings (prescriptive).

By its very language, law is seen as normative. Being normative in character, it cannot be validated by science. So, Fernandez suggests that law can be gauged by using a criterion of validity. For Fernandez, this criterion is that of the legal system.

The test then is: Does the law pass the test imposed by the legal system in order for it (the law) to be valid? Hence, the test is dependent on a particular legal system. If the law satisfies this criterion of recognition, it becomes a rule of law.

Is moral validity required for legal validity? Fernandez says no. Morality is different from person to person. This subjectivity would destroy the certainty and objectivity of the criterion used. It will pose problems relating to obedience among the populace. If, for example, the law is contrary to ones belief or morality, which of the two should the person obey? Fernandez says that a person should not be justified in disobeying the law because such law is not in accordance with his beliefs. Third Question: what is the end of law? The end of law is to provide social conditions of security and liberty essential to human achievement. Notes: Contributions of Philosophy to Law:


1. Nature of Law place of law in the general schema of knowledge 2. Criterion of Law basis for declaring something law 3. The Philosophical Question, Is an Unjust Law, Law?

Fernandez sees Law as a Legal System or a set of Legal Propositions which are statements composed of legal concepts.

Humes formulation (and the tests of validity as per Sison): 1. Normative statements validity based on criteria (legal theory or moral theory, e.g., Austins imperative theory of law or Benthams utilitarian theory of morality) 2. Descriptive statements validity based on the principle of verifiability, i.e., if the statement corresponds to reality.

2. Wolheims The Nature of Law What is the nature of law? This question can be answered in three ways: 1. By giving a synonym 2. By giving a definition 3. By giving a general characterization DANGER: the essence of the word might be forgotten because we use our personal association to the word. Whether or not a law should be considered law depends upon each legal system. If it has through the criterion of validity that a legal system has imposed, the law should be considered a law. But judges sometimes insert their moral judgments in a case. Of course, in arriving at a conclusion, the judge may base his argument in moral and conscientious considerations. This is valid UNLESS the decision is patently contrary to the law. If the judge lays down moral reasons, it is because the law allows him to (the criterion of validity). The decision even though grounded on moral considerations becomes legal.

b. Lloyds Is Law Necessary? Law - ideological in character - Ideological forms part of our outlook upon the world, upon the relation

of man to the world and to society and all its manifestations

Two Views on the Nature of Man

1) Evil no social progress could be attained without the restraints of penal law; Law is an indispensable restraint upon the forces of evil

2) Good due to sin, corruption, etc., mans original and true nature become distorted and this required for its control the rigors of the punitive system of law; Those who view man as inherently good seek to find the sources of the ills of mans present condition in situations external to man himself - criticism to the government and the legal system through which they exert their political authority

c. Lloyds Law and Force

Is Force an Essential Characteristic of Law? Authority: Some person is entitled to require the obedience of others regardless of whether those persons are prepared to find the particular order or rule enjoined upon them as acceptable or desirable or not. There is a very definite connection between the idea of legitimate authority, which has to be obeyed because of its very legitimacy, and moral obligation, which imposes a rule which calls for voluntary adherence by virtue of its intrinsic rightness. The notion of authority which is acknowledged as legitimate derives much of its strength from its link with moral obligation. Charisma (Max Weber): from the Greek word charisma meaning grace. Refer to that peculiar form of personal ascendancy which an individual may acquire in a particular society, and which confers an indisputable aura of legitimacy over all his acts. It is argued that people obey the law not because they are constrained to do so by force but because they consent or at least acquiesce in its operation and it is this consent rather than any threat or force which causes the legal system to work. The idea of the democratic societies is that universal suffrage and majority rule is the means by which the individual from time to time manifest his adhesion to the government. This mode of thought is seeking to achieve is not to eliminate force in the legal process, but rather to remove the emphasis from coercive subordination to voluntary consent or acquiesce. Traditional Domination vs. Legal Domination


Traditional While charisma may create authority by the sheer personal ascendancy of a new leader and thought there may be a natural tendency for this extinguished on his death it by no means follows that such charisma will attach to his person alone, it may pass to his successors Legal Under this system, legitimate domination has become impersonal and legalistic so that the institutional character of authority has largely if not wholly displaced the personal one. Law and Coercion In less developed societies, coercion tends to take form not of the centralized forces but rather of each man helping himself with the aid of his kinsfolk. Even on the level of national law, the law is obliged to apply legal coercion to whole groups as well as individuals. Freud: insisted on the necessary connection between civilized society and coercive social order. This is because of his belief on the existence of mans aggressive urges that can be repressed but not eliminated. It has been a characteristic of developed state law that as the use of force has become more closely regulated and more efficiently brought to bear upon the recalcitrant it has been pushed further and further in the background. Though coercion may be an indispensable part of an effective system of law, there seems to be no reason why we should insist that this necessarily entails annexing penal consequences to every individual rule comprised in the legal system.

d. Lloyds Law and Freedom Types of Society:

1) Open there is a wide field left for personal decision and for the assuming of individual responsibility

2) Close there is almost tribal or collectivist pattern; community is

completely dominant.

Types of Freedom: 1) Positive in the nature of spiritual conception, implying as it does

some kind of maximum opportunity for the self-realization of every individual to his full capacity as a human being

2) Negative concerned with so organizing the pattern of the society, that despite all the restraints and limitations that are placed upon individual action for the benefit of society as a whole, there nevertheless remains as a large sphere for individual choice and initiative as is compatible with the public welfare

Law is said to bind those subject to it. But not all freedom is necessarily good. The word covers a vicious license as well as true liberty. The purpose of the law is to eliminate the first and promote the second. The only reason why it is good for a person to be free from various restrictions and hindrances is that he may be free for the kind of life he was meant to live, for the attainment of his end. Law curtails freedom from because it imposes obligations a man would otherwise be free from, but it enhances freedom for because it enables a man to live the kind of life he has been created for. Law frees man from bondage to ignorance and error without lessening mans responsibility and self-control. In the sense, it is correct to say that true freedom is the right to do what we ought, and the law shows where the ought lies. (Fagothey) Note: Conflicts may arise between the various types of fundamental rights accepted in the modern democratic state. Attempts have been made to try and delineate some sort of natural-law basis upon which a scheme of preferred values might be erected. Customary International law has hardly provided much assistance. It imposes very few restraints upon the sovereign power of a state to deal with its own citizens or resident aliens, and in any event no judicial or other machinery is provided for such issues to be investigated or made the subject of judicial rulings. For this purpose, there are at least two requisites, namely, in the first place a clearly laid down code of established human rights accepted by all civilized states, and judicial machinery whereby issues involving alleged infringement of these rights can be investigated or made the subject of judicial rulings.


e. Lloyds Law and Customs

Customary Law - norms operating in less developed societies; - Operates at all levels of the society - It is impossible to differentiate between legal, moral and religious norms. Habit is a course of conduct which we regularly pursue but without any sense or compulsion to do so. Conventions represent the attenuated survivals of customs of an earlier period Note: Both customs and conventions are normative Two important misconceptions:

1) In early society, custom was completely rigid and unchanging, and that primitive man was born into a helpless condition of total conformity to the tribal custom. Studies show: Custom was subject to constant adaptation to new situations

2) Primitive man was caught up like a fly in a web of inherited custom that so great was the fear of the forces of religion and magic that violation of custom by an individual offender was unthinkable Studies show: Custom was self-enforcing and any occasional violation would be left to the supernatural powers

Note: The purpose of sanctions is to maintain the social order in the community for the breach is seen as disturbing social solidarity. The vital contrast between law and primitive custom is not that the latter lacks the substantive features of law; or it is unsupported by sanctions but simply that there is an absence of a centralized government. Due to the absence of machinery for enforcing decisions, primitive law is dependent on rather indiscriminate modes of enforcement including self-help remedies applied by the next-of-kin of the injured person.

III. Natural Law (Right and Reason by Austin Fagothey; Natural Law Theory of Thomas Aquinas by Susan Dimock; Arguing about Law by Andrews Altman)

a. Abstract The theory of Natural Law can be divided in two: Classical Natural Law

and Modern Natural Law. One of the main thinkers of Classical Natural Law is St. Thomas Aquinas. He stated that the universe is governed by a single, self-consistent, and overarching system of law. On the other hand, the modern Natural Law Theory differs from the Classical on its emphasis, shift, and basis.

There are also conflicting views on the relationship of law and morality. One of them is the idea that law and morality are one and the same. Some see morality as a higher form than man-made law and yet there is another view which states that they can be separated.

Lastly, the discussion on justice shows the different views on justice and its relationship with law and morality.

b. Classical Natural Law

Before, it was accepted that the laws of the state were sacred and beyond all criticism but the ancient philosophers claimed that the rules of positive law were subject to evaluation on the basis of the principle of natural law. These principles represented a higher law by which the goodness or badness of positive (or man-made) law could be determined. (Altman) Meaning of Law Moral necessity Law directs free beings by imposing on their free will the restraint of obligation or duty or oughtness. This way of regulating human acts is in most keeping w/ mans dignity. Physical law Law as applied to nonfree beings observable in the uniformity or regularity of their behavior. This is the physical necessity to follow a pattern of activity. (Fagothey) GREEK/ARISTOTLE: Law is understood in the sense of human convention and contrivance such that if nature and law are put together as natural law, it would seem contradictory Universal law is the law of the nature. There is a natural justice and injustice binding to all men. (Fagothey)


GREEKS vs. HEBREWS: On Obeying the Laws Greeks see obedience as a principle of morality, moral law as separate from state law and that moral law does not override the law of the state. In contrast, Hebrews believe that Gods will dictates a moral pattern and obedience is secured by divine punishment. They rejected the human law as embodiment of morality but they equated law with morality moral/religious law laid down by God/developed by divinely-inspired human beings. Human law is to be obeyed only when it corresponds with divine law. (Lloyd, Law and Morals) STOICS/CICERO: First to make wide use of the term natural law. It is the absolutely necessary course that nature fatalistically follows, with no distinction between physical and moral law. Reason urges us to obey it willingly rather than have it forced upon us. CICERO: Natural law is unchanging over time and exists in different societies; every person has access to the standards of natural law by use of reason; only just laws really deserve the name law and in every definition of law there inheres the idea and principle of choosing what is just and true. (Kelsens Pure Theory of Law) ROMANS:

distinguished between jus (the right) and lex (the law) legislator of natural is God

CHRISTIAN/EARLY CHURCH WRITERS: God acting as lawgiver sets the law for His creation by His wisdom and enforces it by his will. Christians regarded nature as Gods creation. St. Augustine developed the notion of an eternal law as the law created & given by God.

Questions: Are natural morals included? Can there be an authoritative interpreter of natural law? If so, how does the law remain natural? (Fagothey) AQUINAS (according to Altman/Dimock): The universe is governed by a single, self-consistent, and overarching system of law. This entire system is under the

direction and authority of the supreme lawgiver and judge, God. Human law occupies a lower tier. In order to be valid law, practical directive must be an accordance of reason; it must be issued by the person/group who holds law-making authority within the community; it must be directed toward the common good; and it must be promulgated.

1) practical directive must be in accordance with reason; must be directed toward the common good;

Law is an ordinance of reason. Aquinas also believes that the end of all we do, when we act in accordance to reason, is happiness. Hence, law must aim at happiness (not of a certain individual but the happiness) of the whole as a perfect community. The law must serve the common good. The law also serves to unify the diversity of people. Aquinas believes that men have different needs biological, intellectual and spiritual and it is the aim of the law to achieve these needs.

2) must be issued by the person/group who holds law-making authority within the community;

Aquinas also believes that the making of a law belongs either to the whole people or to a public personage who has the care of all the people. Aquinas believes that the relationship between the ruler and the ruled is natural there are some who are naturally fit to rule and others who are naturally fit to follow the rulers commands. These political relations must contain a coercive component and there came to be added to the rulers authority the coercive power of making laws and compelling obedience through the threat of penalties for those who transgress the law.

3) must be promulgated For law to be valid it has to be public. Reasons:

1) People can use the law as a rule and measure for their conduct only if they know what the law enjoins or forbids them to do; and

2) Both the obligation to obey the law and the permissibility of punishing those who violate presuppose that the laws which people have an obligation to conform to can be known by them.

Four Kinds of Law:


Eternal Law- Consists of those principles of action and notion that God implanted in things in order to enable each thing to perform its proper function *According to Aquinas, The whole community of the universe is governed by the divine reason. And since the divine reasons conception of things is not subject to time, but is eternaltherefore it is that this kind of law must be called eternal. * This is called the ultimate norm of morality. Human act is good because it shares through the eternal law in the goodness of God. (Fagotheys Discussion on Eternal Law)

Natural Law- Consists of principles of eternal law specific to human beings. Such principles are knowable by our natural powers of reason. Obedience to natural law is obligatory and disobedience is wrong for to achieve common good, natural law must be obeyed. *Man, having reason & free will, doesnt just simply obey eternal law but participates fully in the law. The fundamental precept: Do Good, Avoid Evil Human Law/ Positive Law- consists of rules framed by the head of the political community for the common good of its members.

*Human law is needed to clarify natural law. Another reason for needing natural law is because we sometimes fail to willingly follow the dictates of natural law.

Two ways: deductive and inductive: a) deductive from natural law to positive law this has a force of natural law thus we have acts mala in se or acts w/c in themselves are morally wrong b) inductive positive law related to natural law thus we have acts mala prohibita or acts w/c in themselves are not morally wrong but are otherwise prohibited by law.

Law must be just. A law that is just is morally binding. A thing is just if it is according to the rule of reason. But the first rule of reason is the law of nature. If a law does not conform to the rule of nature, it lacks the force and status of law, it is not just.

Justice according to Aquinas: Demands that the burdens and benefits of society be distributed proportionately and in the service of the common good. Human law doesnt proscribe all virtues. It prohibits only those w/c are possible to abstain and those that are hurtful to others.

Divine Law- exists over and above natural law, guiding us to the ultimate goal: eternal salvation. Reasons for having divine law:

A) Eternal happiness is beyond mans faculties. B) We need a standard for all, a law that cant err. C) Laws govern only external acts we need something that can

permeate even thoughts. D) We need to punish all other vices left unpunished by natural &

human laws. Because men cant know, by natural reason unassisted by divine revelation, what God demands of them in order to be worthy of eternal happiness, divine aw is needed. Law is a rule and a measure. It is a system of rules by w/c human beings are to direct their behavior to the common good. To the natural theory of law can be attributed the retributivist theory of punishment whereby sinners are punished proportionately. ENLIGHTENMENT:

God as lawgiver drops out. There is natural law without an eternal law, without a lawgiver, without any really binding obligation.

Human nature is regarded as eminently knowable by human reason. They way to find human nature is by stripping from man the artificial accretions of civilizations so that he may be seen in his native state or state of nature. (Fagothey)

Evidence of the existence of natural law: (Fagothey)

1) Existence of: values and their objective basis, preeminence and self-justification of moral value, its irreducibility to any other value and its absolutely imperative but noncompulsory necessity, the inner drive of each being toward the attainment of its end, ability of men using reason to distinguish moral good from moral evil these things when


taken together adds up to a law and since it is rooted in mans nature, natural law.

2) Existence of scientific knowledge is evidence that there are laws governing the activity of beings

Man must be directed to his proper good by means that are both effective (powerful enough to produce the effect) and suitable (to mans rational and free nature).But that only means both effective and suitable is the natural moral law. Reasons:

1) It must be law it needs to have binding force; not mere wish or hint 2) It must be a moral law physical laws are only suitable to nonrational

beings. External compulsion would mean that man must accomplish his end despite his will, and would do violence to human nature

3) It must be natural law mans nature is the means that will guide him to his end.

Man comes to know natural law by the use of his reason by drawing conclusions about his own nature. He can compare his conduct with his nature and understand the conformity and nonconformity between them and he will then make rules of conduct that will be able to preserve the conformity. (Connections between natural conditions and systems of rules are not mediated by reason but are rather based in the following truisms: human vulnerability, approximate equality, limited altruism, limited resources, and limited understanding and strength of will. - Hart) Natural law consists of precepts of varying degrees of importance for the welfare of humanity. Natural law is both absolute and relative. Man is a rational animal but he grows and develops, too. Natural law must pertain to mans rationality and is absolute in this sense but it must also be relative to become adjustable to fit human progress. Justice remains the same but the mode of acquiring it changes.

c. Modern Natural Law 1. Emmanuel Fernandos Natural Rights

Legal Theory

The thrust of the Classical Natural Law Legal Theory is that there is a conceptual connection between positive law and morality, and that the oral order is part of the natural order. Modern Natural Law Theory can be distinguished from Classical in 3 aspects: emphasis, shift, & basis.

Classical Modern

Emp

has

is Universecentered focus on the

general order of the universe & the interconnectedness of those in it

Mancentered focusing on his separatedness as a person, equality, and brotherhood

Co

nte

xt

Human nature w/in the context of society because man is a social/political being & he who lives outside of the society is either a god or a beast

Extended the idea of human nature & applied it to the context of the state of nature before society or government; man have rights by nature

Bas

is

Dutybased natural law prescribes duties w/c man has to comply with & mans rights are based on duties situated in a general order

Rightbased rights in the state of nature, from w/c duties can be derived; all men have rights and we have a duty to respect others rights

MAIN CHARACTERISTICS & DISTINGUISHING FEATURES OF NATURAL RIGHTS LEGAL THEORY The 5 basic distinguishing features of natural rights theory are: 1. Existence of selfevident truths 2. Adherence to natural equality 3. Existence of natural rights 4. Derivation of power from the consent of the governed 5. Limitations on the powers of the government Existence of self-evident truths

ural rights truths specify in detail, concreteness, and greater unanimity. Adherence to natural equality

where man derives equality. Inequality exists when he enters the society & government, and leaves the state of nature.


ought to be treated equally in the sense that he has equal rights which ought tobe individually respected. Existence of natural rights 1. Concept of Right

Moral rights are derived from morality & may provide justification for legal rights. Natural rights are a subset of moral right, that man is entitled to certain rights.

right is both a liberty to do something as well as a claim against someone entailing a duty on the latters part not to interfere w/ that liberty. Liberty entails no corresponding duty on the part of a 3rd person, it is considered as a legal relation. Hobbes & Locke: Natural Rights

Hobbes Locke

Der

ivat

ion

o Mans condition in the state of nature, in pursuit of his desires o Liberty absence of external impediments o Differentiated between power, liberty, and ability; law of nature & right of nature

o Natural rights is derived from mans condition in the state of nature o Mans nature is limited by the law of nature. Rights have correlative duties. o From this follows that man has the right to be free & secure in his life, liberty or possessions.

Inal

ien

abili

ty

o Virtually all rights may be alienated, and he surrenders his right to govern himself to a sovereign o The right to self preservation cant be transferred

o There is a right to punish in the event of a violation of right or natural law. There is also a right to reparation & right to assist those injured in seeking reparation. o It is only right to property & rights to executive power w/c are alienable. Rights to life & liberty are not.

Derivation of power from the consent of the governed Manner of Derivation

Hobbes Locke

Stat

e o

f n

atu

re

o Man is selfish by nature. He desires good and hates evil. Happiness consists in the fulfillment of desires; desires are based on the primary desire for power. o Man is also in the state of equality of ability, from w/c arises equality of hope.

o Man has a more rational or enlightened selfinterest o There are many things wanting in the state of nature: a) established & settled known law; b) known and indifferent judge; c) power to back & support sentence when right

Soci

al c

on

trac

t

o 3 descriptive laws of nature derivable given that man is in a state of war: a) man endeavors to seek peace to seek peace & follow it; b) mans willingness to give up his rights for the sake of peace; c) pacta sunt servanda Through the conventional theory of morality, fear of the authority compels men to stick by the agreement. (Justice being what the authorities say it is)

o Men will agree to yield certain rights & transfer such to an authority so as to escape the great inconveniences found in the state of nature. o But a covenant is binding only to those who consent this is his moral justification of authority, aside from prudential considerations.

Man

ife

st c

on

sen

t

i. Express words spoken, promise, etc ii. Inference silence, actions, etc.

o There is a difference between an obligation to obey the laws of nature (tacit consent) and an allegiance to government (express consent) o Ramifications How is express consent exactly manifested? If this is left unanswered, any government can claim to have met the standards and a government may enjoy consent yet is in no position to establish its authority.

d. Law and Morals 1. Lloyds Law and Morals; Harts Justice

and Morality Hart:


Morality of a given society refers to the standards of conduct w/c are widely shared in a particular society. These rules are distinguished from others bec of serious social pressure, sacrifice of personal interest, threats of punishment, appeal to respect or guilt. There is an overlap in content between legal and moral obligation although the requirements of laws are more specific than moral rules. Lloyd: There is no necessary coincidence between law and morals. The convergence of law with morality was because of three factors namely:

1) Law and morality reinforce and supplement each other 2) They play an important law in establishing the authority of law and

ensuring obedience. 3) Both are couched in normative language.

Divergence

1) Law may only reflect popular morality and the higher ethical standard may not be embodied in popular sentiment.

2) There are certain areas where the law prefers to abstain from supporting the moral rule because more social evil may be created than prevented by the intervention.

3) There is a sphere of morality which is best left to the individual conscience Libertarian approach.

2 difficulties arise in characterizing rules w/c belong to morality & make conduct morally obligatory (Hart):

morality have their own area of vagueness there are disagreements as to the status of rules in relation to human

knowledge and experience Conflict bet Positive Law & the Moral Law Law & morality is interrelated & they interact w/ each other but there is a possibility of serious divergence.

1) Law and Morals must necessarily coincide either because moral law dictates the actual content of human law. Only the moral law is valid and the rest must conform to it. Morality= Obedience to the law.

2) Man-made law and moral law enjoy a realm of its own but since the moral law is higher, it provides a touchstone for the validity of human law. (classical natural law theory; natural rights of man)

3) Autonomy of each sphere so that neither can resolve questions of validity save in its own sphere (Positivism). This is a pragmatic view of moral law and the conflict between legal & moral duty may be resolved in accordance w/ the dictates of conscience.

e. Law and Justice

1. Lloyds Law and Justice; Harts Justice and Morality

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Justice is a moral value or an aim or a purpose that man sets himself in order to attain the good life. What is the ultimate good is not a matter of demonstration but of choice. (Lloyd) Justice thought as maintaining or restoring balance or proportion. The term just and unjust could almost equally be conveyed by the words fair and unfair. Fair is relevant in two situations:

1) When the concern is not who a single individuals conduct but with the way in which classes of individuals are treated

2) When some injury has been done and compensation or redress is claimed

The close connection between justice in the administration of the law and the notion of a rule has made some think that justice is identified w/ conformity to law. The law itself cant determine what resemblances & differences it must recognize if its rules are to treat like cases alike. The criteria of relevant likeness and differences vary w/ the fundamental moral outlooks of persons or society. The principles of justice do not exhaust morality. Laws may be condemned as morally bad simply because they require men to do particular actions, which morality forbids them to do, or because they require men to abstain from doing those which are morally obligatory. (Hart) Note: The similarity between law and justice is that there is a sense of distribution.


Formal justice may fail to result in substantial justice. An unjust law perfectly justly administered may embody the most profound injustice. We choose to accept the criterion by which conduct is judged. Here there is little distinction between what we view as good and just. Platonic Justice: Plato: Every person is inherently adapted to some specific function and that if he departs from that function, he is guilty of injustice. (An inadequate criterion of any ultimate good which our own society may aim at achieving) Formal Justice and Equality: In modern times, justice had been equated with equality. A law which is applied without discrimination in this way may be regarded as the embodiment of justice. Justice, in this sense, is really no more than a formal principle of equality. Formal justice requires equality of treatment in accordance with the classifications laid down by the rules, but it tells us nothing about how people should or should not be classified or treated. 3 Related Conceptions:

1) There shall be rules laying down how people are to be treated in given cases;

2) Rules shall be general in character; 3) Justice requires that these general rules shall be impartially applied.

Substantial Justice: To achieve substantial/concrete justice, the formal requirements of justice need to be supplemented

1) Concrete Justice: There are certain differences between human beings that are not appropriate grounds for discriminations like sex, race, color and religion. Adherence to a value-judgment of this kind is clearly one of conscious choice and moral conviction which cannot be deduced from the formal criterion of equality incorporated in the idea of justice.

2) Equity: Justice should be administered with mercy which means that legal justice should be tempered to the individual case in the spirit of equity.

Legal Justice The formal aspects of justice & the basic characteristics of law correspond. This can be attributed to the fact that legal conceptions exert influence over the way in w/c ethical concepts of justice has developed separate from, but closely related to, the formal structures of a legal system. The three aspects of formal justice:

1) Existence of Rules: Legal system contains rules which regulate human behavior and settle disputes

2) General Application: Laws are not necessarily general 3) Impartial Application: Impartiality is the aim but application is

different. We would still have to look into the social development of the people to say if there is impartiality.

Aristotle: Equity mitigates the harshness of law Both justice and law saw the need to soften the rigors to meet difficult individual cases since applying too my equity/rigidity will make the law lose its character. Legal Injustice Three Types of Cases wherein injustice may arise from the law:

1) Law is treated as synonymous with justice but falls short of the ideal standards; (Lloyd: different interpretations of the law is not injustice per se; it is the law itself that must be devoid of justness)

2) Law is not duly administered impartially; 3) Law is unjust if judged by whatever value system may be applied to

test the substantial justice of the legal rule. Law and Substantial Justice Law needs to possess a just content conforming to the criteria of rightness based on values outside of justice. Allowing the flexibility on rules by conferring in judges and other officials the possibility of developing the law and adapting it to the needs of the society would give the judiciary scope within the rules to regard the dominant values accepted in the society. The legislative & judiciary branches can be given guidance to the values to adhere to in arriving at decisions or in making new laws. It may serve a country w/ a long tradition of an ordered government & w/ a fairly homogenous population.

IV. Legal Positivism a. In General


i. Abstract The school of Legal Positivism found its roots from the idea of Hume

that human inquiry has two sets what is and what ought to be. This idea is followed by Benthams concept of utilitarianism which set the atmosphere for the emergence of Legal Positivism.

Legal positivism is law as it is or positive law. In contrast to natural law, legal positivism separates the field of law from morality. What is legal is not necessarily moral. According to Austin, law may be immoral but still valid as long as it is enacted by a sovereign. This sovereign can be the monarch or the legislature. Law as being enacted by a sovereign is the crucial concept of legal positivism. For legal positivists, laws draw their validity from a person or group vested with authority. The question is, who vests this authority? Hart attempts to answer this question by saying that authority can be found in rules of recognition (ex: Constitution).

Laws issued by the sovereign should be followed by the people whether under pain of punishment (Austin) or social pressure (Hart). However, the sovereign itself obeys no one. Thus, the sovereign is supreme. One main difference between Austin and Hart is that for the former, law is a command, while for the latter, law is a rule.

Furthermore, legal positivists assume that there is always a law applicable to a given situation. Rules govern society in this way. However, in case there is no existing rule that can solve a particular problem, the sovereign can delegate its authority (delegated authority) to a group which is tasked to decide the case using their discretion and wisdom (Austin). This is the role of judges in a given society. The judges make new rules or adapt old rules and the sovereign can either overturn their creations or tacitly confirm them by failing to do so.

This delegated authority, if anything, shows how legal positivism fails on its proposed theories. Legal positivism has an obsession with rules and how rules should cover every transaction of mankind. However, should these rules fail, the task is then passed on to the exercise of discretion by a given group. Thus, this obsession with rules eventually gives way to human discretion and how the courts can enforce authority without rules. This contradicts the positivist principle that rules must exist first before a judge can enforce. This is where legal realism comes in, which will be discussed in the next chapters.

ii. Definition and Concept

Legal positivism- man-made law as it is set (posited) by man for man rather than as it ought to be. It implies that legal rules are valid not because they are

rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such. (Source: http://www.businessdictionary.com/definition/legal-positivism.html) Notes from Sir Sison: Legal positivism is conceptual or formal. It is a decision made by human beings. Key tenets of Legal Positivism (Dworkins summary in Is Law a System of Rules?)

1) Law of a community is a set of special rules, as distinguished from social rules (custom, culture), used by the community directly or indirectly for the purpose of determining which behavior will be punished or coerced by public power.

2) The set of valid legal rules is exhaustive of the law, so that if someones case cannot be covered by existing rules, judicial discretion is allowed by the sovereign.

3) Legal obligation is the result of valid legal rules that require the person to do or to refrain from doing something.

Main Distinction between Natural Law and Legal Positivism:

Natural Law Legal Positivism

Definition of Law If law is inconsistent with morality then that is not a valid law. Valid law is characterized as right or wrong. morality- principles which determine if an act is right or wrong, good or bad.

What is legal is not necessarily moral as long as it is enacted by a sovereign (Austin) or by rules of recognition (Hart). Law is laid down by human beings. Law is a norm, rule or command. Law is formal.

Source of Law God Sovereign (monarch or legislature)

Positivists attack the natural law because by regarding a certain inherent moral quality as an essential feature of law without which it is not law at all, it tends

http://www.businessdictionary.com/definition/legal-positivism.html


to confer on established law a sanctity to which it is not always entitled, and so creates a barrier against law reform. Natural Law: A judge to perform his legal duty should refuse apply unjust laws as being invalid. Legal Positivist: Judge is appointed and paid to apply municipal law as established organs of law-making and not to indulge in or to apply his personal speculations as to system of higher law. It is the judges legal duty to apply that law according to its letter and spirit.

1. Lloyds Legal Positivism

HUME: There are two sets of human inquiry what is actually the case and what ought to be the case; ought propositions normative and actual propositions norms. Law differs from moral norms since it calls for a certain measure regularity of observance while a moral rule may still be held valid even if it is never or scarcely ever observed. Hume indicated to be sought in certain ends or aims of human life were determined not by reason but by the desires of mankind passions. KANT: Recognized the two realms of is and ought but asserted that the latter contained the absolute rule of morality categorical imperative. BENTHAM: Utilitarianism: maximizing human happiness according to the slogan the greatest happiness of the greatest number. The principle of utility was itself a metaphysical principle. 2 aspects of utilitarianism:

1) Firm distinction between law as it is and as it ought to be 2) Treating law as a science

Law could only be properly understood if it was treated as an autonomous field of study free from all issues of morals, religion and the like. The question of the goodness or the badness of any given law was to be adjudged by the principle

of utility. Legal duty does not cease to be a legal duty because the citizen is persuaded of the moral iniquity of the duty, but whether he chooses to comply or obey is a question for his own conscience.

Law as a Science COMTE: Believe that adequate knowledge could be attained only by employing the scientific method of investigating reality by observation and subjecting its theories to empirical investigation. Criticisms of the Conceptual Approach

1) Tends to induce a frame of mind where legal concepts are regarded as possessing a certain inherent structure and that any developments of law which disregard this structure is illegitimate. This may pose an undue restriction on the legal process

2) Legal problems can be solved by means of logical analysis disregarding the role that policy plays at arriving at legal decisions.

3) The level of investigation only uses second-order facts and not primary facts including behavior of legal officials, judges and others.

b. Austins concept

1. Murphy and Coleman, The Nature of Law

The command theory of law (He makes the concept of command central in his theory of law.) Why? Because of the non-optional nature of legal requirements -The law is a coercive method of social control, not a moralistic advice. (identifies legal obligation with force) -The law demands the attention and compliance of those to whom it is directed. -command- 1) signification of desire of the sovereign 2)ability to inflict evil or harm for the nonsatisfaction of desire -Austins concept is more applicable to criminal law, because his concept of punishment is only applicable to laws that prevent us from doing certain things (ex: killing, stealing) but not to laws that allow us to do certain things (ex: validity of contracts) Notes: Characteristics of Law:


-Orders backed by threats -majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves habitually obey no one. (Harts summary of Austins theory in The Foundations of a Legal System) - Obligation is based on a rule and a rule is based on a general command, and a command as an expression of desire that others behave in a particular way, backed by the power and will to enforce that expression in the evnt of disobedience (Dworkins summary of Austins theory in Is Law a System of Rules?) -Law is a command of the sovereign to render him legal obedience. command -That sovereign is not subject to anyone else. -Violating the command would subject you to sanction or punishment. -Gunman metaphor: gunman putting a pistol on your head uttering the words, your money or your life -Law also draws validity through habituality. The more one repeats an act, the more other people will obey the law. Prescriptive (what ought to be) vs. Descriptive (what is) -Austin terms this as normative jurisprudence (prescriptive) and analytical jurisprudence (descriptive). He rejects normative jurisprudence. Instead, he characterizes the law as it is. -It is not enough to say that laws are prescriptive because even if you have the Constitution, when no one obeys this as a point of fact, then no one can recognize it as a standard. Thus, it is also crucial that laws are descriptive of reality (i.e. that people as a fact obey the law or at the very least know that they should obey the law) (from Murphys The Nature of Law) What gives the sovereign a cloak of authority is measured by how habitual people obey its laws. What makes people obey the law of the sovereign is the fear of being subjected to punishment. A persons beliefs, fears, and motives in obeying the law are not relevant. Obligation is viewed in terms of the chance or likelihood that the

person having the obligation will suffer a punishment or evil in event of disobedience. Statements of obligation predict ones chances of incurring punishment or evil. Thus, this makes the obligation to obey the law predictive. Habit vs. Rule (Concept of Habit of Obedience discussed in Harts Sovereign and Subject) Similarity: 1) Must be general 2) Repeated when occasion arises Difference: 1) Deviation from the regular course need not be a matter for any form of criticism. 2) Where there are such rules, not only is such criticism in fact made but deviation from the standard is generally accepted as a good reason or making the criticism. 3) Habits are not normative and cannot confer rights or authority on anyone. External aspect of rules: uniform behavior shows that a rule is efficacious Internal aspect of rules: a standard for members of society to follow a rule.

c. Harts concept

1. Harts Law as the Union of Primary and Secondary Rules

Rules- obligations with serious social pressure, may or may not be customary Hart criticizes Austins theory in several ways:

1) Austins concept assumes that there is only one sovereign. What if the sovereign dies and he is succeeded by another? Should the old sovereigns rules still be followed? Also, Austin states that a new sovereign gains authority when people habitually follow his rules. However, how do you characterize that nebulous transition wherein he has not prescribed any rule yet? (legislation with a dead legislator persistence of law)

2) Austin likens the force (which impels people to obey the law) to a gunman. Hence, he seems to imply that the gunman of society indeed makes the law (from Murphys The Nature of Law). This is an absurd metaphor because it depicts law as a wrongdoer.


3) Austins theory is only applicable to criminal laws, where there always is a sanction. However, there are varieties of laws that confer legal power to adjudicate or legislate (public powers) or to create or vary legal relations (private powers) which cannot be construed as orders backed by threats.

4) Austins predictive interpretation of legal obligation suffers from two errors: 1) If it is true that an obligation is characterized by punishment in case of disobedience, how will this be a form of obligation? He is merely coerced into doing something. It is the fear of force that makes a person obey. 2) Predictive interpretations obscure the fact that, where rules exist, deviations from them are not merely grounds for a prediction of hostility or sanctions, but are also a reason for applying those sanctions.

Hart refutes Austins theory by asking, What must be added to a command to make that command a law? (from Murphys The Nature of Law) -There must be rules of recognition. Rule of recognition- affirmative indication that it is a rule of the group to be supported by the social pressure it exerts

- Acknowledgement of reference to the writing as authoritative in order to dispel doubts as to the existence of a rule

- In a developed legal system, rules of recognition are more complex in the sense that they do not simply refer to a text (ex: This is ordained by the Constitution.)

- Instead, they refer to some general characteristic possessed by primary rules (ex: fact of having been enacted by a specific body like Congress, long customary practice)

Characteristic of Law: -Rules are conceived as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great. -it is the insistence on the seriousness of social pressure that gives rise to obligations and makes people obey the law, instead of Austins gunman metaphor.

There is a difference between those who voluntarily cooperate to see that laws are followed and obeyed in contrast to those who reject them and just merely conform to prescribed external behavior just to avoid punishment. In order to retain a legal system, it is crucial that the first kind of law-abiding citizens are the majority in a society, since what makes the minority obey is the overwhelming social pressure on them. Otherwise, this minority would have too little social pressure to fear. Primary rules- rules that contain restrictions on the free use of violence, theft, deception to which human beings are tempted but which they must repress if they are to coexist in close proximity to each other Secondary rules- those that stipulate how and by whom such primary rules may be formed, recognized, modified or extinguished (public powers) Rules of Change- 1) new primary rules enacted by an individual or a body of persons for the conduct of life of the group or some class within this group 2) eliminates old rules Rules of adjudication- 1) secondary rules empowering individuals to make authoritative determinations of the question on a particular occasion a primary rule has been broken 2) This is the role of the judiciary in the Philippines. 3) Judgments will become a source of law. In a way, rules of adjudication are a crude form of rules of recognition. Since courts are given the power to make determinations on primary rules, then it presumes that rules of adjudication have given them the authority to do so. Hence, this rule that conferred jurisdiction on the courts is a form of rule of recognition. Harts solution for the pitfalls of Austins theory: Harts concept dispenses with the issue of a dead sovereign since authority is derived from an ultimate rule rather than an authority figure. Furthermore, he replaces the gunman metaphor with serious social pressure. Lastly, Harts concept of law is not merely limited to laws that prescribe punishment.

2. Harts The Foundations of a Legal System There must be authoritative criteria for identifying primary rules of obligation. Refers to an authoritative text or legislative enactment


Ultimate rule- 1) a rule of recognition that provides the criteria by which the validity of other rules in the legal system is assessed 2) often shown not said Rules of recognition- specify criteria of legal validity Rules of recognition are the most fundamental laws of a legal system. Hence, it is unquestionable. It escapes the conventional categories used for describing a legal system. It cannot be assessed for it itself prescribes those standards for assessing primary rules of obligation. It is not valid in the sense that it is ultimate and so cannot meet tests stipulated by a more fundamental rule. Obedience from the standpoint of the citizen: Average citizen only cares about avoiding sanction but rules of change, rules of adjudication and rules of legal validity are still important for courts and legislators.

V. Critique of Legal Positivism and Natural Law 1. Dworkin, Is Law a System of Rules?

Critique of Positivism:

1) For the positivists, a judge has no discretion where there is an existing rule governing the situation. This assumes that all rules are clear and detailed enough without further need for interpretation.

2) Moreover, in hard cases where there is no applicable rule, the sovereign can assign someone to exercise discretion to decide a case. This contradicts the principle of legal positivism that rules must exist first before a judge can enforce it.

Policy- improvement in some economic, political, social feature of the community Principle-1) standard to be observed, not because it will advance an economic political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality 2) broader than rules 3) can be used to decide hard cases when no rules apply Rule vs. Principle - Rules and principles differ in the character of the direction they give. -Principles do not look like rules. -Principles carry the most weight in hard cases.

-Principles, unlike rules, still survive intact even when they do not prevail.

Rule Principle

Both sets of standards point to particular decisions about legal obligations in particular situations.

Applicable in an all-or-nothing fashion (If it applies to a given set of facts then we apply the rule. If not, then we dont apply the rule.)

Broader, flexible, has more weight or importance

Rules cannot conflict with each other in the sense that when there are conflicting laws, one is invalid, the other valid. Both cannot be valid.

Both principles can be valid and existing. The validity and existence of one does not cancel out the validity and existence of the other. Courts weigh their relative importance in a given case.

Discretion -A relative concept: Discretion under which standards? Discretion as to which authority? -An officials discretion means not that he is free to decide without recourse to standards of sense and fairness, but only that his decision is not controlled by a standard formulated by a particular authority Dworkins Solution on the Pitfalls of Legal Positivism: Treat principles as law. Rules are not enough. Principles will be applicable in deciding cases. Also, legal obligation might be imposed by principles apart from established rules. This is what judges do when deciding a hard case. However, discretion is not merely exercised by a judge during a hard case. Even just in interpreting an existing rule, a judge already uses discretion. No rule is detailed and specific enough to cover every human situation, as the positivists propose. Thus, an analysis of the concept of legal obligations must take into account the important role of principles in reaching particular decisions of law. Dworkin provides the transition from legal positivism to legal realism. Notes from Sir Sison: Dworkin: Law is not a rule. Law is interpretation. (Application of an interpreted rule to a factual situation) Moreover, law is not simply an instrument but must contain a goal you want to achieve. Principle- sense of justice or fairness broader and more important than rules so every situation is covered


Justice- giving everyone his right 9protect and recognize rights) Judge- the decision-maker so must be competent

VI. Sociological Jurisprudence a. In General

i. Abstract Whereas legal positivism emphasized on the formal aspect of law,

legal realism is chiefly concerned with the connection between law and human society. Legal realism suggests that more than the actual law that a law student tries to master in law school there is a law or a code that dictates how legal problems and cases are solved in real life.

In a nutshell, legal realism is not merely concerned with theory or the black-letter law. It is also and more importantly concerned with the inner order of how these laws operate. For instance, although a lawyer may possess all the valid legal arguments to win an ejectment case, the lawyer must also know the realities that will lead to a favorable decision. An example would be the acumen and personal biases of the judge, the bribery that happens inside the courtrooms, and so on. A lawyer may write all the winning legal arguments imaginable, but without the requisite (requisite in the sense that it is customary or habitually practiced by the people in that specific group) bribe or token gift, his case will most likely fail. Thus, legal realism posits that there is more to law than actual text and theory. There is no such thing as a purely objective and neutral court enforcing a law.

1. Lloyds Law and Society Origins of Sociology Hegel: -development of human history as following a preordained pattern -idea of reason actualizes itself in human history and its highest manifestation is the national state. Citizens are entirely subordinated to the higher aims of the state, for only in this way could human potentialities be fully exploited. Weber: -every concrete judicial decision involves the application of an abstract legal proposition to a concrete situation. Erlich: -emphasized the role of social norms (which governed society in all its aspects) in characterizing the law of a society.

-These social norms are known as the living law. -Thus, the lawyer needs to know not merely the black-letter law, but also the normative inner order of the living law and thus indicates how the law operates. -living law always in a process of change, so that positive law constantly needs to adapt to it Pound: -With the rise of modern technology, one can explain the legal process through social engineering. -Drawing from Jhering, Pound saw the legal process as a form of social control where all the competing and conflicting interests in society are scrutinized, compared, and accepted or rejected. -courts: supreme agent of the law in effecting social control

Holmes: -Law is not a texture of subsisting rules but a mere technique for predicting what decisions courts of law are likely to make in particular cases. -Lawyer must not only know set of theoretical rules said to be binding on courts. He must also explore all the sociological and psychological factors bearing upon decision-making to show how courts are likely to decide a particular case. Characteristics of Legal Realism: -technique of predicting decision-making -attempt an understanding of the functioning of the legal system as an effective means of social control and achieving societys aims for itself

b. Legal Realism

1. Karl Llewelyns The Bramble Bush Rules alone, mere words, are useless. Concrete instances are necessary for these rules to mean anything all. Without these instances, rules lose their meaning. Characteristics of Law: -Law exists to settle disputes both actual and potential. (dispute-avoidance) -What officials do about disputes is the law itself. Notice a regularity of action by these officials to predict what they are most likely to do in the future when settling disputes.


-It will be the actions of the judge and the available means of influencing their action which make up the law. Rules are important in the sense that they help you predict what judges will do. -The law is less concerned with making order than maintaining it when something has gotten out of order. For the average citizen, law does not make order. There is order in a society because society is given and order is given in a society. The average citizen only deals with the law when there is already a dispute which involves him. This dispute is a deviation from that order. Hence, the law is needed to be interpreted to maintain the order. -In addition to knowing the rules to predict what the courts will do, lawyer should also know these rules in relation to the life of the community and the needs of his client. -In other words, he should know the working situation of his society apart from knowing the law. Dispute- 1) a larger category than crimes 2) refers to all kinds of disputes, whether civil or criminal Procedural law- conditions the existence of substantive law at all (If you dont follow the proper procedure, your case will fail despite the merits of your case) Note from Sir Sison: -Legal Realism is a form of legal positivism. (Comment: doubtful remark, because legal positivism if formalistic whereas legal realism is concerned with working situations and factual realities that are as important as the law itself.)

c. Law from the Policy Perspective (Policy Science) 1. Reisman, A Theory of Law from the Policy

Perspective A variety of distinct functions or operations are concealed in the word decision. Practice of law- practice of problem-solving Characteristics of Law: -does not simply consist of mental exercises about abstract notions or rules -entails making hard choices, whether for society or for a particular client -a challenge to action Eight Values of Human Wants:

1. Power

2. Wealth 3. Enlightenment 4. Skill 5. Well-being 6. Affection 7. Respect (the most important of all according to Sir Sison) 8. Rectitude

Seven Component Decision Functions: (IPPIATA)

1. Intelligence- gathering of information relevant to making social choices

2. Promotion- agitation to have a particular preferred policy turned into community law

3. Prescription- legislation or the making of community policy as law 4. Invocation- provisional characterization of some behabior as deviating

from prescription 5. Application- the specification of law to a particular set of events and

the determination of a sanction 6. Termination- the ending of existing prescriptions or laws and the

design of appropriate means of compensating those who had made good faith value investments in the expectation that they would continue

7. Appraisal- a consideration of the aggregate effectiveness of the entire decision process in terms of whatsoever community policies are to be realized and recommendations for structural or personal change

Notes from Sir Sison: -Formal law- a myth (Drawing from Reismans Myth System and Operational Code in Folded Lies) -Informal rules- 1) decision combined with effective control (effective control: acts done by public officials to enforce the law) 2) operational code -Three aspects of law: 1) Formal law 2) Operational code 3) Enforcement -Law must be obeyed.


-In a society where there are competing interests, the overarching value is human dignity. -Institutions:

1) Government 2) Non-governmental organizations 3) Peoples organizations

000 legal theory reviewer b2014 professor sison-annotated

Documents

nature of law

law necessary

western philosophy of

classical natural law

modern natural law

legal positivism

relevance of philosophy

dimensions of philosophy