Perla V. Arroyo 1 JD 1-5

PHILOSOPHY OF LAW MEMORY AID FOR MIDTERM EXAM

CHAPTERS 1-4

CHAPTER 1&2 NATURE OF JURISPRUDENCE Jurisprudence

- Jurisprudence or legal theory deals with the general philosophy of law, that is to say the nature and elements of the law.

- The question of the nature of the law is concerned with its derivation, development and thrust.

- The question of the elements of law deals with the legal concepts which are material to the legal ordering of society, namely: 1. State; 2. Sovereignty; 3. Legal Relations; 4. Legal Persons; 5. Legal Facts; and 6. Legal Things

- Then, it is concerned with the Theoretical and technical aspects of law as a discipline.

The Different Schools of Jurisprudence 1. Historical School of Jurisprudence Appraises

- Appraises the law in the context of the common consciousness of a group of people.

- Where did the law come from and how did it evolve?

2. Teleological School of Jurisprudence

- Thinks of the nature of the law in terms of the moral and rational nature of human kind.

- Understands the law as strictly connected with morality and naturality.

- What is the telos (purpose) of the law?

NOTE: Teleological means exhibiting or relating to design or purpose especially in nature. 3. Positivist school of jurisprudence

- Considers the law as a conscious norm of the state backed by its authority and force.

- For this juristic school, the law is not inherently moral or natural.

- What is the distinctive structure and content of the law?

4. Functional school of Jurisprudence

Views the nature of the law in terms of the jural postulates, social interests and national policies of the people.

- How does the law work in weighing or adjusting the competing individual and public interests?

5. Realist School of Jurisprudence

- Takes the nature of the law on the basis of the on-going experiences and inter-experiences of the people.

- Is the law verifiable in the practical life of the people?

6. Policy Science School of Jurisprudence

- Looks at the nature of the law in relation to the degree of success of society in the creation, clarification and realization of social values.

- What is the basis and the limits of global, regional, and national legal orders in relation to social values?

Law in General

- Means any rule of action or order of sequence from which any beings whatsoever either will not, or cannot, or ought not to deviate.

- This means that all concerned must cease and desist from certain activities or conduct which otherwise would result in some loss, damage, or injury, whether directly or indirectly.

Rule of action - is any warrant, instruction, measure, regulation, or decision governing any act, conduct, transaction, or proceeding, including its consequences. - There is conduct and cannot be broken.

Orders of Sequence - is any system of arrangement or consecutiveness, or any uniformity of a given group of phenomena.

Will-not non-deviation - means that there is a determination to abide with, or avoid violation of, the rules of action and orders of sequence; carries a connotation of future conformity, prospective agreement, or eventual compliance.

Cannot non-deviation means that there is no way but to obey or comply with the rules of action and orders of sequence.

Ought not non-deviation there seems to be an alternative to action. However, the alternative is abandoned because it is the better of prudence to follow or comply with the rules of action and orders of sequence rather than refrain from following or complying with them.

- It is a rule of conduct, just, obligatory,

promulgated by legitimate authority, and of common observance and benefit. (Specific/Strict Sense-Sanchez)

CHAPTER 3 TELEOLOGICAL PERSPECTIVE

Teleological Perspective of Law

- That the law is ordained for the achievement of the precepts of the natural law, namely righteousness, justice, fairness, and equity in the legal order.

- The achievement or realization of these precepts in the legal order is the telos (purpose) of the law.

Natural Law Basis

- The teleological concept of law is based on the natural law philosophy; natural law has a great more deal to do in shaping the concept of law than any other idea.

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- The teleologists consider the natural law as the most potent force in the development of legal institutions and legal concepts.

- It is upon the precepts of the natural law that the completeness of the legal order can be achieved.

- The teleological school of jurisprudence believes that a good legal order can be deduced from the natural law, thus making the law universally valid for all people.

Greek Concept

- Socrates, Plato and Aristotle believed that good faith in dealing with one another is the condition of life in society. This means tat

- Plato explained that what is important in human relations is not the use of power but the observance of honesty and good faith.

Socrates Absolute Justice (469-399 B.C.)

- First consideration, no person is intentionally bad or evil. He aroused in his students a love for justice to combat the skepticism of the Sophists. For Socrates, the failure to do what is just and avoid what is unjust is really due to morbid physiological appetites, mistakes, or even bad company.

- Second consideration is that only the temperate person knows himself or herself and thus able to bring his or her emotions under control. A temperate person will do what is virtuous and just, in relation to rights and obligations a temperate person will do what ought and avoid what ought not, and in relation to other persons, a temperate person act properly, patiently enduring when necessary

Temperate individual is a good, happy and sound person able to judge whether his or her acts and their consequences would be just (virtuous) or unjust (vicious)

- Basis for Socrates motto Know Thyself

Platos Rational Justice (429-348 B.C.) - There is hierarchy of reality he drew a sharp

dividing line between ideal reality and physical reality.

- Plato posited the concept of justice yielding to the rational mind. For him, the human beings are capable of discerning justice from injustice even in their minds.

- Rational Justice is sufficient to enable human beings to attain their moral nature and good faith, keeping their self-respect by doing good and fulfilling their proper functions in society.

- It dictates that every individual in the state should attend to his or her own function whether he or she is a legislator, a judge, a soldier, a lawyer, a teacher, a physician, a carpenter, or whatever.

- There is justice when a person fulfills his or her proper function and not to take up the role and position of another person.

- Rational justice means the preservation of peace and harmony and the prevention of disturbance.

- This rational justice has been discredited on the basis of ethical principle of meliorism, that is to say the inherent right of human beings to move on and better the quality of their lives.

Aristotles Particular Justice (384-322 B.C.) - Aristotle denied Socrates concept of absolute

justice as too exacting for it demanded the kind of moral excellence which is the culmination of all virtues. He observed that the concept of justice advanced by Socrates and Plato was simply unworkable.

- Hence, Aristotle taught his students the sound sense view of justice. Justice which grows out of the sense of fair equality. In other words, justice is sound and sensible when, in light of events and circumstances, it is fair and equal.

- He insisted that a person cannot be unfairly treated even with his consent; consent, even if given, cannot justify an unfair and unequal treatment.

- This insight later became the basis of Roman law concept of volunte non fit injuria.

- Thus, for him, the hallmark of a persons moral nature and good faith is fair equality.

Roman Concept Marcus Tullius Cicero (106-43 B.C.)

- Cicero brought the Greek concept of the nature of the law into contact with the Roman legal system at a time when there was a need for some means of controlling an empire already extending around and beyond the Mediterranean Basin, which Cicero admitted was won by injustice both to gods and men

- Since human kind is governed naturally by utility, then to rule the different races and cultures under the Roman dominion effectively, the law must be based on the principle of utility, that is to say in the interest of the ruler and not for the interest of the governed.

- Introduced compulsion as an element of the law.

- Posited the idea that the law cannot be an effective means of social control on the basis of rationality alone but must also be able to compel obedience.

- Compulsion is necessary to Romans since at that time they do not share the same culture with those people with whom they conquer.

- Individual persons fulfill their promises and comply with their obligations not only because they are intelligent or rational persons but also due to their deep-seated desire to avoid undesirable consequences which would inevitably follow for non-conformity with the law.

- Opposed prudence as a factor in determining the justice or injustice of an act or conduct. An act may be prudent but the question remains, is it fair and just?

- An honest person might be a fool but he remains a just person while a prudent person would both be wicked and unjust.

Gaius - Jus Civile are rules established by the citizens

to govern themselves. - Jus Naturale are rules which are common to

all other persons based on the natural law. - For Gaius, those that are in derogation of the

precepts of the natural law are not laws at all. If such laws exist it is due to the sanctions attached to them, not because they are laws.

- In identifying the aberration in the legal order, he advocated for the continuing process of removing such unnatural laws from the books.

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- Laws must be reexamined by the law making body every once in a while. This process would, then, provide the means for legal cleansing whereby any abnormality or irregularity in the legal order could be adjusted to comply with the end and purpose of the law.

Thomas Aquinas (1224-1274)

- Based on the claim of the Romish church to absolute authority by advancing the idea that some church doctrines are defensible by formal reasoning while others which cannot stand the process of reason must be accepted by the clergy and the laity alike on faith alone.

- He thought of the law as an institution ordained Heby God.

- The source of the law was substituted by the power of God who, expounded by him, is the Legislator of the whole of justice and Governor of all things.

- He expressed the view that a human being has a rational soul and a will of his own. This is ordained by God for the universal good.

- Like Plato, he believed in the rational capacity of human beings. For him, what is capable of human reason is not divine law but only the precepts of the natural law.

- The Jus Divinum is known only to God. - He held that human reason influenced as it is

by physiological sensations is not sufficient to bring human beings to a correct understanding of what is right and just; reasonable people have varied ideas as to what is right and just.

- He reiterated the almost forgotten idea of Sophia or right reason to bring human beings into a harmonious relationship with one another.

- By sophia, he meant that the intuition to do and promote good and evil. The precepts of natural law are based on the right reason. Thus, human law has the nature of the law when it partakes of right reason.

Justice - is considered by him as the habit whereby man renders to each one his rights by a constant and perpetual will. In two aspects, justice as an ethical virtue and justice as a juristic norm.

Law and sovereignty - the public welfare or the common happiness is the first concern of the people since the direction of anything to this end is the concern of those whom the end or purpose belongs.

Immutability of Law - the Greek and Roman philosophers believed that the law pervaded with justice and equity is immutable and inflexible but Aquinas advanced the idea that changes do occur in the subsequent applications of the law and these changes may be by expansion or contraction in accordance with the civilization of the time and place.

Immanuel Kant (1724-1804)

- One of the foremost figures in philosophy and jurisprudence.

- Advanced his general philosophical thought which he called transcendental philosophy which means learning or understanding

determined by the mind itself. It is pure knowledge for it is not gained by or through sense experience.

- He emphasized the idea that the nature of law cannot be understood in the terms of sense experience; law to be an effective means of social control must be based on the a priori precepts of natural law.

- In studying human consciousness and conduct, Kant reached back to Platos concept of reality yielding only to human intelligence, which Plato called Ideas.

- He made it very clear that the human mind has the capacity to construct or harmonize ideas and concepts even prior to experiencing them by the physical senses.

- This transcendental philosophy is an intense reaction to the theory of knowledge of David Hume (1711-1776), which for the latter, all knowledge is derived from observation which is to say from sense experience. Kant feels that Humes idea is not pure knowledge but only experiential knowledge which varies from person to person, from time to time, from place to place which are not binding on all persons in all places in all times.

The Utility Supplement

- The doctrine of utilitarianism is traceable to Epicurus (342-270 B.C.). Teleologists with the utilitarian complexion have considered happiness as the measure of goodness or badness of acts and their consequences based on the hedonistic calculus.

Hedonism comes from the Greek hedone which means pleasure.

- Epicurus maintained that in the formation of values and judgments it is the intellectual and aesthetic happiness or pleasure that are the highest good.

- The basis of the telos of the law are the pleasures that are conducive to repose of both individual and societal needs.

- Pleasure does not mean continuous drinking, satisfaction of lust, wealth but sober reasoning, searching for the motives for all choices.

- It is based on two considerations, namely, what pleasures ought not to be sought and what pains ought to be avoided in the legal ordering of the society.

- There are two (2) distinct stages in the development of the modern utilitarian supplement of the teleological perspective of the nature of law, namely, the Benthamite Concept and the Jherinian Concept.

Benthamite Concept

- Jeremy Bentham (1748-1832) advocated a formula based on calculations of the social utility of an act or conduct in the determination of the validity of positive law.

- He placed the emphasis of his law reform movement on the greatest happiness of the greatest number of individuals in the community.

- His utilitarian individualism as William Friedman puts it, was directed towards the emancipation of the individual from restrictions and inequalities which impeded the free play of forces that were to give full scope to individual development.

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- The ultimate test of goodness or badness of an act or conduct is the quantum of justice (pleasure) or injustice (pain) that it yields.

- He concluded that the law is a system of social control directing and governing persons to the maximum of happiness and to the minimum of misery. Thus, rules should be judge by their tendency to promote happiness and avoid pain.

- He specified the ends of the law, namely, to provide substance, to produce abundance, to encourage equality, and to maintain peace and security and this can be accomplished by direct pursuit of pleasure and avoidance of pain.

Jherinian Concept

- It is advanced by Rudolf von Jhering (1818-1892) who disagreed with Benthams individual interests. According to him, the law should address the realization of the partnership of the individual and society.

- While individual persons have their own interests to consider they cannot ignore the interests of society of which they are parts.

- This is called social utilitarianism. Hegelian Concept - Georg Frederich Hegel (1770-1831) stated that

his basic premise that the law is the product of an evolutionary process and this appears in a dialectic pattern.

- This pattern is a design in which one element, called thesis, is followed by an opposite aspect, called antithesis, and the struggles between them is either wholly or partially settled or reconciled by the synthesis of the contending views.

- The opposing views or ideas are resolved by what Hegel called the principle of identity which states that all that is rational is real and what is real is rational. By this, he means that noting is real or actual unless it is intelligible or rational as well.

- The principle of identity seeks the reconciliation of opposite views or ideas, i.e., reconciling thesis and its antithesis resulting in the synthesis which then becomes the new concept.

CHAPTER 4 POSITIVIST PERSPECTIVE

Seed of Legal Positivism

- Analytical Jurisprudence, as some are inclined to label this particular perspective of the nature of the law, is one of the older systems of legal science in the sense that the beginnings of legal science among Roman jurisprudents are to be found in the use of analysis.

- But it also deals with mature legal systems. - One of the recent methods of the science of

law. - John Austin (1770-1859) developed, uses the

method of comparative analysis. The label positivist jurisprudence is preferable; emphasizes the perception that the law is consciously created by the state.

- The law is positive, that is to say posited by the authority of the state.

- The seed of legal positivism was planted by Socrates. In Platos dialogue Crito, he recorded that the followers of Socrates escape from

prison after he was sentenced to forfeit his life. Socrates refused and told Crito that while he considered the sentence passed upon him to be unjust and unfair it was, nevertheless, lawfully rendered and, therefore, he intended to obey it.

Positivist Approach

- Separation of law from moral law and natural law.

a. Law not Necessarily A Moral Concept - The idea of teleologists that the norms of moral

and natural laws are inherent in the concept of the nature of the law is emphatically criticized by the positivist school of jurisprudence. John Austin, advocated the separation of law from moral and natural law, as follows: With the goodness or badness of the law as tried by the test of utility or by any of the various tests which divide the opinions of mankind it has no immediate concern.

- Law is not necessarily interested in an axiom for the norms of morality.

- Relation between law and morality is only accidental, not direct.

- Principal thrust, then, of the positivists is to keep the legal order apart from the perplexities of ethics.

- Persuaded that the legal order can exist without conscious regard for the norms of morality, although the latters influence are not completely denied.

b. Uncluttered by Metaphysical Speculations - It views the issue by way of the empirical

sphere of reality the is rather than the transcendental sphere of the ideal the ought.

- The reason for this critic is that the precepts of the natural law are vague, for, indeed, their meaning are not shared in common by everybody.

- To free the concept of law from metaphysical speculations.

- Positivists avoided the study of the nature of the law characterized by the ought.

- To examine the question of the nature of law without cluttering it up with axiological baggage.

Hobbes-Austin Concept

- Thomas Hobbes (1588-1679) and John Austin (1790-1859) are recognized as the jurisprudents who developed the concept of law in terms of legal positivism.

- Hobbes stated that laws cannot be unjust since they are made by the sovereign power.

- All that is done by such sovereign power is warranted.

- There must be one compelling order or coercive force.

- It can be delegated by the State, to the government.

- Austins stated that it is absurd to say that positive law is void if it is not in accordance with the natural law and to proclaim generally that all laws which are contrary to the natural law are void and not to be tolerated is to preach anarchy, hostile and pernicious.

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- In legal positivism, Austin stated that there is a clear-cut distinction between law and morals and between law and natural law.

- Law is detached from moral and natural law, and the attention is confined to the distinction and division which relate to law exclusively.

Pure Positive Law Response

a. Lousanne Brand - Ernst Roguin of the University of Lousanne

sought the purification of positive law on the basis of creative thinking.

- The validity of positive law lies in pure juridical science consistent with the culture of the people.

b. Vienna Brand - Hans Kelsen (1881-1953) of the University of

Vienna simply removed from the concept of law any moral implications.

- Laws must be represented empirically and must stand on its own leg.

- Pure positive law theory considers only human norms, not norms coming from other superhuman resources.

- Laws are viewed as pure, if there is a grand norm and all laws must conform to it such as Constitution where all other laws must obliged to be in accordance to it.

- The Grand norm is conceived by the collective will, capacity and competence of the people free from axiological ideas.

- Laws must be normative - Bridges the gap of the is and the ought. - Collective will is achieved. - It must be real and possible justice. - Appropriate to the evil sought to be destroyed

empirically validated even if inappropriate to the evil sought to avoid.

Purification of Positive Law

- Laws must be studied as it is and not how it ought to operate.

- Nature of the law must be presented empirically, meaning, it must stand on its own merit without make-up of axiological ideas.

- It excludes any divine or natural law.