PHILOSOPHY OF LAW
Law and morality are intimately connected.
Law and morality are different.
Philosophy of law is a branch of moral
Philosophy of law is the philosophy of a
philosophy.
particular social institution.
In essence, law is an ordinance of reason.
In essence, law is an institutional construct.
INTRODUCTION
Nomenclatural Distinction
At the outset, a cursory distinction must be made between “Philosophy of Law” and
“Legal Philosophy.”
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While they both deal with Philosophy and Law, their field of emphasis is
different. Philosophy of law is a branch of philosophy, and therefore deals primarily with
philosophy. Legal Philosophy is a discipline in law, and therefore deals primarily with law.
In other words, their operational base is different – Philosophy of law is within
philosophy, whereas Legal Philosophy is within the legal academy.[1]
Consequently, because of the difference in their field of emphasis, it seems that
philosophy of law is broader than legal philosophy. Philosophy is an all-encompassing
subject that may have as its subject matter anything under the sun; thus the so-called
philosophy of X, and philosophy of “law” is just one of the many possible subjects. The
philosophical approach is highly abstract and seeks for the ultimate “whys” and
“wherefores.” Legal theory deals specifically with how institutions and legal processes
are legitimized or justified.
The distinction, however, is never clear. They overlap in terms of subject and
themes. And in pursuit of a more academic discussion in a post graduate course, it is
becomes unimportant to distinguish philosophy of law and legal philosophy.
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Schools of Thought
There are two major contending schools of thought in philosophy of law: Natural Law
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Theory and Legal Positivism.
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From the time of the ancient Greeks until the seventeenth century, natural law
was the only legal theory. In brief, natural law understands law as an “ordinance of
reason” and “intimately connected to morality;” hence law must be “reasonable” and
“just” otherwise it is not law.
Legal positivism came after, generally contending that the law is only a kind of
“social technology” which does not necessarily have a moral character. Under this theory,
what the law does is regulate the behavior of its subjects and resolves conflict between
them.[2] A law exists not for its moral or rational underpinnings but because of the social
mechanisms that promulgate it.
Roughly speaking, the two schools of thought differ in their understanding of
philosophy of law, in that natural law almost makes philosophy of law as a “branch of
moral or ethical philosophy,” while legal positivism takes philosophy of law as the
“philosophy of a particular social institution.”[3]
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Natural Law
Legal Positivism
Questions asked in Philosophy of Law
Logically, the main question asked in philosophy of law is “what is law?” And
since it could be answered in various ways, contending schools of thought also emerge
from it, as seen above.
Other related questions would be – Is law the same as morality? Is it universal
or just man-made? Does it have a specific purpose? Is it for the attainment of justice? Is it
for socio-economic and political equality?
From these questions, it could be seen that philosophy of law has a very vast
scope. To limit it therefore, emphasis will be placed upon leading theories only (Natural
and Legal Positivism).
Importance of Studying Philosophy of Law
It must be emphasized that the social, moral, and cultural foundations of law,
and the theories which inform and account for them, are no less important than the law’s
“black letter.”[4] A well-entrenched understanding of the printed provisions of law is
impossible without knowing the spirit or philosophy which lies underneath them.
Legal theory has a decisive role to play in defining and defending the values and
ideals that sustain our way of life.[5] When laws are threatened of abolition, the defense
always takes recourse in philosophy to justify their existence. Laws are at the heart of
every legal institution, including the state, so that the latter’s legitimacy is anchored on
the philosophical justification of its laws.
Philosophy of law is not among the eight bar subjects. But this does not mean
that it is useless in taking the bar exams. Many examinees fail because they lack
philosophical aptitude and legal reasoning. In truth, the foundation of all bar subjects is
philosophy. Take for example, constitutional law and criminal law:
Constitutional law, which is under political law, is based on critical liberal
philosophies enunciated in Article II (Declaration of Principles and State Policies) of the
1987 Philippine Constitution. Understanding the philosophical foundations of political
law is necessary to tie up its numerous details.
Criminal law likewise is based on various philosophies and principles.
Rationalizing in the bar demands a succinct understanding of how crimes are defined
and penalized according their underlying philosophies.
For example, why should penal laws be liberally interpreted in favor of the
accused? Justice, which is a principal philosophical concept, explains this, in that the
disadvantaged (in this case, the accused) should be given more opportunities than the
advantaged (in this case, the State). Thus, the rule of “pro reo,” which provides that the
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penal laws should always be construed and applied in a manner liberal or lenient to the
offender. This rule is constantly repeated as the underlying philosophy in many
provisions of the Revised Penal Code.
Philippine criminal law system uses four philosophies depending on the
circumstances:
(1) Classical or juristic theory which provides that man, who possesses freedom, is
punished for an act or omission willingly, voluntarily, and intelligently performed. Under
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NATURAL LAW THEORY
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this philosophy, man should be adjudged or held accountable for wrongful acts so long as
free will appears unimpaired,[6] so that if one lacks free will and intelligence, he should
not be held criminally liable. This philosophy is so basic it is implied so often in bar
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exams.
(2) Positivist or Realistic Theory which provides that man is inherently good but his acts
or behavior may be conditioned by his environment. Because of his upbringing, social
environment and associations he may become socially ill or an offender. Thus, under this
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philosophy penal laws are meant to “reform” and the penalties are considered “corrective
or curative.” Jails are reformatories and penalties are imposed after an examination of the
circumstances of the offender. Unlike the classical theory which emphasizes on the
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offense itself, positivistic theory emphasizes on the offender and not on the offense.
(3) Ecclectic (or mixed) Philosophy which combines good features of classical and
positivist theories. As contended by many legal theorists, the classical theory should be
applied to heinous crimes, whereas the positivist should be applied to socio-economic
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crimes. The Philippines generally adapts the eclectic philosophy
(4) Utilitarian Theory which is based on the maxim “greatest happiness for the greatest
number of people.” The fundamental idea behind this philosophy is that the primary
function of punishment in criminal law is to protect the society from potential and actual
wrongdoers.
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Approaches in Legal Theory
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There are two approaches in explaining law: descriptive and normative.[7]
Descriptive legal theory seeks to explain what the law is, and why, and its
consequences.[8] It is about the facts of law. It has three principal types:
“Doctrinal” which seeks to elucidate a case based on an “underlying theory”;
“Explanatory” which seeks to explain why the law is as it is; and
“Consequential” which seeks to discuss the consequences of a certain set of
rules.
Normative legal theory is concerned with what the law “ought to be.”[9] It is
about legal values. As such, it is closely associated with moral and political theories.
It is important to note however that there is no rigid delineation between the
two. Often, one approach leads to another. Utilitarian normative theory, for example,
needs a descriptive account of the consequences of rules, and vice versa.
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Origin of the Natural Law
The term “natural law” is misleading. At the outset, it must be made clear that it
does notrefer to the physical laws of nature. Natural law theory originated from ancient
Greece as a moral theory, which tackles the all-important issue of the “good or happy
life.” Evidently, it seeks to explain the nature of morality and not of law. The question,
therefore, is how did it become a theory of law?
During the time of the Greeks, they consider morality as field separate and
distinct from religion. For them, a person can be moral even if he does not believe in
God. This is possible by means of reason. Man is capable of thinking, and it is by using his
reason that he comes to understand what is right from what is wrong. He knows, for
instance, that killing is wrong because it is unreasonable and not because God says so. A
person therefore learns to act rightly through his faculty of reason.
Since acting rightly necessarily includes others, as one’s act affects another,
individual morality includes politics. Knowing how to act rightly necessarily involves how
to deal rightly with one’s fellow men. Inasmuch as a moral theory involves a rule of
conduct, it may also be construed as law in the broad sense. It is along this line that the
moral theory developed into a theory of law.
Aristotle was among the first thinkers who embarked on the Natural Law
Theory. The bridge between “individual morality” and “social life” is encapsulated in his
assertion, “man by nature is a political animal.” This means that it is ingrained in each
person the natural tendency to live in a community because it is only in a community that
he becomes truly human – he becomes civilized, educated, and truly rational. Outside the
city (polis) he is just an animal.
Also according to Aristotle, man is a rational animal, meaning aside from his
“animality” he also has “rationality,” which puts him over and beyond other animals. Part
therefore of the nature of man is his “reason.” In other words, it is natural for man to
reason out. It is along this context that a moral theory, which is based on reason, is said to
be a natural theory. When one says, “there is something unnatural about this,” what he
means is there is something unreasonable about the thing. So if one acts irrationally, it
also means he is acting unnaturally. It could therefore be said that the essence of law under
the natural law theory is its rationality.
At this juncture, the connection of the following concepts must be clear:
morality – reason – law. Morality demands reason. Reason determines the conduct of
man. The dictates of morality and reason constitute a norm of conduct. Morality and
reason are the bases of law.
It was said earlier that ethics leads to politics. In fact, the ethical treatise of
Aristotle was a preamble to his political treatise. The pursuit of the good life requires a
determination of the ideal society or government. Nowadays, “natural law” is generally
taken to mean only that part of the original moral theory which explains the way that the
law, narrowly construed, operates as part of a broader moral life of individuals.
[10] Political institutions, like the states, are legitimized or justified by the moral
theory from which they were drawn. Using the political institution theorized by Plato
(teacher of Aristotle), for instance, the rulers must be wise and morally upright. Their
authority depends on how they embody the political criteria of wisdom and morality.
Rome carried on the Greek and Hellenistic philosophical tradition, but it was
faced with the problem of relativism, which rejected universal standards. In the ancient
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world, Rome was the melting pot of all cultures, beliefs, and races, somewhat analogous
to the United States now. Relativism was particularly dangerous to the Romans because it
could prevent them from formulating workable rules which would uniformly govern
everyone within their vast empire. The varied customs and practices of particular
cultures must be replaced by laws recognizing universal or common nature.[11] The
natural law theory as it developed in Rome sought to explain the common nature of man
which is the basis of morality or natural law.
The dominant philosophical school in ancient Rome was Stoicism. The stoics
emphasized on the importance of the performance of one’s duty and accorded primacy to
reason. According to them, a person should concern himself only of the things that are
within his power, i.e. only the activities of his soul. He cannot control all other things.
Thus, to be rational simply means to perform one’s duties conscientiously and virtuously
because he cannot do otherwise.
What resulted from this philosophical activity was the jus gentium, which was a
legal order meant to apply to all persons throughout the Roman Empire. At first, the jus
gentium was applied to foreigners or second class citizens, then eventually it became a
superior legal order or universal application. The rise of jus gentium into a superior law
was caused by the need to provide a universal standard of justice.
Critical to understand under the natural law theory, as expounded by the Stoics,
is the Latin maxim “lex injusta non est lex” or “an unjust law is not a law.” If, for example,
the Philippine Congress passes a statute that orders the taking of all farmlands without
need of paying the landowners, then such statute would provide no law at all. It must be
pointed out clearly, that an unjust law (or one that deviates from the principles of
morality or natural law) is not even a “bad law” but rather, it is not a law at all. Natural
lawyers are not just evaluating the morality of the law. For them, if a law is immoral it is
not law at all.
Positivist thinkers are particularly critical at this Latin maxim. They
distinguish law from morality. They argue that an immoral law, as long as it was passed
validly by the Legislature, is still a law, even though it is a bad law. For them, a law may be
wicked or harsh, but just the same it must be followed because it is still the law. This does
not mean that the positivist lawyers are not critical about the morality of the law. Jeremy
Bentham, for instance, a positivist, was a social reformer, who attacked “bad” laws. Take
note, however, that what he attacked was the “wickedness” of laws and not the “validity”
of the laws.
Hence, the principal goal of natural lawyers is to establish the connection of law
and morality. The intimate connection of the two should support their claim that an
immoral law is not a law at all. It must be emphasized that as a natural lawyer one does
not just evaluate the morality of a law because even the positivists do it. What a natural
lawyer does is to establish the necessary connection of law and morality so that when a
norm is immoral, he could prove that it is not a law itself.