STUDY NOTES
(By Wilbur Gadicho)
ON
CRISOLITO PASCUAL’S
INTRODUCTION
TO
LEGAL PHILOSOPHY
1997 Edition
About the Book Author:
CRISOLITO PASCUAL LL.B. (U.P.), LL.M. (Boston U.)
Associate Justice (Ret.) Court of Appeals of the Philippines
Professor of Law, U.P.
Former Director, U.P. Law Center
Former Editor, Philippine Law Journal and Journal of the Integrated Bar
Legal Philosophy – is the scholarly study of the law, legal theory,
and legal systems in general. Also called “jurisprudencia universalis”
or simply “jurisprudence” --- Black’s Law Dictionary, 9th Ed
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Chapter 1: JURISPRUDENCE, JURAL AND NONJURAL LAWS
1. Nature of Jurisprudence
A. Proemium Case Law – the law to be found in the collection of the reported cases that
form all or part of the body of law within a given jurisdiction.
Jurisprudence (legal theory) – deals with the general philosophy of law,
which is the nature and elements of law. It is concerned with the theoretical
and technical aspects of law as a discipline.
Nature of Law – is concerned with its derivation, development, and trust
Elements of the Law – deals with the concepts which are material to
the legal ordering of society, namely:
1. State
2. Sovereignty
3. Legal relations
4. Legal persons
5. Legal facts
6. Legal things
B. The Problem Stated –
1. What is the nature of the law? (Socrates)
2. Why is jurisprudence worth studying? (Cicero)
What should be done -- Orchestrate the sounds of different schools of
jurisprudence concerning the nature of the law.
How may the nature of the law be fully appreciated --1. Systematic understanding of the essence of the different theories
2. Rationalizing differences whenever possible
3. Emphasizing harmony
4. Making allowances for the areas where they overlap
5. Balancing the ideas that have led to undue emphasis in one direction or
another
C. The Different Schools of Jurisprudence
1. The historical school – appraises the law in the context of the common
consciousness of a group of people.
Question: Where did the law come from and how did it evolve?
2. The teleological school – thinks of the nature of the law in terms of
the moral and rational nature of humankind. This school understands
the law as strictly connected with morality and naturality.
Question: What is the telos of the law?
3. The positivist school – considers the law as a conscious norm of the
state backed by its authority and force. For this school the law is not
inherently moral or natural.
Question: What is the distinctive structure and content of the law?
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4. The functional school – views the nature of the law in terms of the
jural postulates, social interests and national policies of the people.
Question:
How does the law work in weighing or adjusting the
competing individual and public interests?
5. The realist school – takes the nature of the law on the basis of the ongoing experiences and inter-experiences of people.
Question: Is the law verifiable in the practical life of the people?
6. The policy science school – 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
Question: What is the basis and limits of global, regional and national
legal orders in relation to social values?
2. Law in General
Law – is any rule of action or order of sequence from which any beings
whatsoever either will not, or cannot, or ought not to deviate.
A. Rule of action - any warrant, instruction measure, regulation, or decision
governing any act, conduct, transaction or proceeding, including its
consequences.
Example:
(1) a traffic regulation promulgated in accordance with a city or municipal
ordinance.
(2) A statute enacted by the legislature pursuant to its legislative powers
in the constitution.
Two important points that should be noted --(1) Conduct is included in the definition – this is necessary because there
are certain conduct that are productive of distinct legal effects and
consequences (such as “forbearance” which means intentional refraining
from action)
(2) They continue to apply with their sanctions in full force and effect even
though they are repeatedly violated or remained unobserved.
B. Order of Sequence – is any system of arrangement or consecutiveness,
or any uniformity of a given group of phenomena. Mainly concerned with
physical nature, order of sequence is also a law, such that any deviation
therefrom results in inconvenience, damage or injury.
They are
“immutable” for they do not alter with time and place. And they are
“absolute” for they do not depend on the human will but operate inexorably
admitting of no exceptions.
Example:
(1) The numerals or integers – this system of numerical arrangement or
consecutiveness of the positional value of numbers cannot be unilaterally
varied without harmful consequences.
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(2) The pull or drag of gravity is an example of “uniformities” --uniformities of nature can be harnessed to good use but no human being
can violate or change any order or norm of physical nature without
harmful results.
C. Classification - Four Distinct Classes of RA and OS:
(1) That which necessarily determine the activities of human beings
(2) That which necessarily determine the motions and even the instincts of
dumb creatures
(3) That which necessarily determine the origin and growth of living
organisms, which governs the development of all forms of life, from the
simplest to the most complex
(4) That which necessarily determine the movements and course of
inanimate bodies or masses
D.
Focal Point of Nondeviation
Three Types of Nondeviation
(1) Will-not category – means that there is a determination to abide with,
or avoid of. This force carries a connotation of future conformity,
prospective agreement, or eventual compliance.
(2) Cannot category – means that there is no other way but to obey or
comply with the rules of actions and the orders of sequence, no matter
how much the desire to act otherwise may be. This is indicative of a
present or actual condition of conformity. This category is the force which
gives the legal order the authority to try and punish lawbreakers.
(3) Ought-not category – there seems to be an alternative to action, but
such alternative is abandoned because it is the better part of prudence
to follow or comply with rather than refrain from the following or
complying with them.
3. Jural Law
A. Particular Sense –
 The term LAW refers to a statute: batas, ley, legge, lex, nomoi, loi,
gezets
Statue - is the written enactment of the legislative branch of the government
composed of definite provisions for definite situations to which certain
incentives and/or sanctions have been attached as means of enforcement.
Legal Incentive – is a stimulus or motive developed through some
extraneous influence operating on the individual members of society. Ex. -Tax exemptions, tax deductions, government loans, condonation of accrued
taxes, government subsidies, benefits and rewards.
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Legal Sanction – a coercive intervention or an eventual punishment annexed
to a violation of a rule or regulation. Ex. – fine, imprisonment, destierro, loss
or suspension of certain legal privileges, assessment of damages, cost and
interest
 May refer to any “contract” or “agreement” – these covenants are
binding in character and so the parties are said to be solemnly making law
for themselves.
 Law may also refer to any rule or opinion given by an agency of the
state or by a jurist, or by an authorized official of the government.
Example of regulation formulated by an agency of the state --(1)
a rule of civil or criminal procedure promulgated by the Supreme
Court pursuant to its rule making power.
(2)
Regulation issued by the Central Bank in accordance with its
charter and duly published in the Official Gazette.
Example of opinion given by a jurist --(1)
“dangerous tendency” by Justice George Malcolm of the Supreme
Court of the Phils --- in the case of People vs Perez, as follows:
“there is a seditious tendency in the words used which could easily
produce disaffection among the people with a disposition to remain loyal
to the government and obedient to the laws and tending to disturb the
peace of the community and the safety of the government.”
(2)
“clear and present danger” by Justice Oliver Wendell Holmes (USA
Supreme Court) --- in the case Schenck v United States:
“the character of every act depends upon the circumstances in which it
is done. . . , The question in every case is whether the words are used
in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that
Congress has a right to prevent”
(3)
“no immediate decision” by Justice Antonio Villareal (Phils SC) -- in Javellana vs La Paz Ice and Cold Storage Co.,Inc. it was held that
“the various motions for postponement amounting to a systematic
method of blocking or delaying the ordinary course of the hearing of an
application for a certificate of public convenience will justify the grant
of a provisional permit to operate the public service applied for.”
Example of opinion of a jurisprudent --(1)
A commentary on a particular branch of law --- the authority of
an opinion or commentary is based on the scholarship of the
commentator. It is presumed that the courts take into consideration
only the opinions and commentaries of highly qualified persons.
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Example of opinion of an authorized official of the government --(1)
Ruling or opinion of the Secretary of Justice, who is the Chief
Legal Adviser
B.
Collective Sense – when the term “law” is employed a collective or
aggregate term when
(1) it refers to the gross or bulk of specific or particular laws relating to one
subject-matter,
(2) it refers to the laws obtaining in a given society.
Example of totality of laws relating to subject-matter --(1)
Civil Law
(2)
Commercial Law
(3)
Remedial Law
(4)
Criminal Law
Example of the use of the term law with reference to particular laws from a
determinate source or origin --- Law of the Philippines
Three Divisions of Law in Collective Sense:
1. Substantive Law – defining rights and obligations
(a)
Substantive private law
(1) The law of persons and family relations – defines the rights and obligations
of persons living in a politically organized society regarding their personal
and family relationships
(2) The law of property – defines the rights and obligations of persons living
in a politically organized society in relation to property and property rights,
including classes of legal things and proprietary concessions
(3) The law of obligation and contracts – defines the nature and source of
claim-duty, privilege-inability, power-liability and immunity-disability
relationships as well as the ones arising ex ques deleto
(4) The law of trade and commerce – defines rights and obligations concerning
land, sea and air traffic, shipment and business transactions as well as
ships and vessels, their crew and navigation.
(b)
Substantive public law
(1) Constitutional law – deals with rights and obligations concerning the
fundamental or supreme law of the land, more particularly the
organization, powers and functions arising from the relationship of the
state to the people
(2) Public administrative law – body of legal rules defining rights and
obligations concerning the operation of the government both on its
departmental and administrative functions and functions of public officers
in relation to private persons as well as the law on elections
(3) Criminal law – deals with the rights and obligations in connection with
crimes, criminals and punishments.
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2. Remedial or Adjective Law – defining remedies and procedure
(a)
Adjective private law
(1) Law on civil actions – deals with the rules by which a party prosecutes
another for the enforcement or protection of a right or the prevention or
redress of a wrong
(2) Law on special proceedings – deals with the processes which are not
pursued in the ordinary manner or procedure.
(b)
Adjective public law – the law of criminal procedure which deals
with the rules defining legal remedies and procedures in criminal actions
whether they take on the nature of prosecutions of public crimes or
prosecutions of private crimes.
3. Special Law – defining rights and obligations during extra-ordinary times
(a)
Military law – deals with the system of rules and regulations for
the creation, government, and discipline of the armed force (applies
only to those who are in actual service)
(b)
Martial law – deals with the system of rules and regulations
applied by military power in times of war or in times of grave public
danger (ceases when the situation has already turned to normal)
(c) Public international law – deals with the system of rules, regulations,
and principles which govern the relations between sovereign states, and
such other entities, not states, which are endowed with international
personality.
Pertains to relationships connected with states and
international entities.
C.
Abstract Sense – the term law is simply referred to as “law” without the
definite article preceding it. The central theme of the legal order in the
adjustment of human relations is kautusan not batas, derecho not ley,
diritto not legge, jus not lex, nomos not nomoi, droit not loi, recht not
gezets> The law is made up of not only a body of precepts but also a body
of innate and received ideals.
(1) Precepts – deals with the prescribed directions and trends concerning a
given subject matter.
(a)
Rules – define or set the farthest limits of human activities and
actions. Composed of definite provisions for definite states of facts
to which certain definite incentives or sanctions or both are attached
as means of enforcement
(b)
Principles – are authoritative premises for legal and juristic
reasoning when a question not governed or covered by a rule for
adjudication.
Do not contain incentives and sanctions.
Their
importance lies in the fact that they may become the basis of rules,
concepts and standards.
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(c) Concepts – are general categories into which specific cases and things
may be classified. Examples are legal concepts on:
1. Possession
2. Agency
3. Contract
4. Intention
5. Consideration
6. Negligence
This element of the law is important because it sets the materials of
the law in proper order and symmetry, reducing the mass of rules
into manageable size.
(d)
Standards – are models or criteria to test or measure the validity
of specific acts for the purpose of determining responsibility in the
absence of specific rules.
1. Standards of fair competition – condemn acts characterized by
force, intimidation, deceit, machination, or any other unjust,
oppressive, or high-handed methods giving rise to a cause of
action by the person who thereby suffers damage. The essence of
fair competition is giving free and equal opportunity to all in order
to make choice or decision and other transactions and enterprises
or any lawful calling without restraint or intervention from anyone
other than for causes which the law accepts and recognizes.
2. Standards of diligence (bonae pater familae / care of a good
father of a family) – is designed to minimize or prevent wrongful
acts or omissions. Negligence is then simply the absence of
diligence.
3. Standards of good faith – the honest belief in the validity of one’s
right, ignorance of a superior claim and absence of intention to
overreach another.
(2) Ideals
(a)
Juristic ideals – rational theories which may reshape or change
the contents of legal rules and legal precepts. Example: Ordered
Liberty, constructed by Justice Benjamin Cardozo (US SC) in the case
Palko v. Connecticut --- “the rights guaranteed by the constitution to
the people are valuable and important but not all of them are of the
very essence of a scheme of ordered liberty.” This means that there
are certain rights that can be “withdrawn or abolished and yet to do
so is not to violate the principle of justice so rooted in the tradition
and conscience of our people as to be ranked as fundamental.”
Examples are immunity from self-incrimination, immunity from
double jeopardy
(b)
Ethical ideals are meant rational theories or syntheses of moral
responsibility and decent individual and group behaviour where the
aim is toward higher moral ground. It refers to what human conduct
and expectations should be.
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Examples –
1. Loving one’s neighbour as set by Jesus Christ (basis of Tort rule
that a person must not cause damage or injury towards another
by taking reasonable care)
2. No one can enrich oneself at the expense of another (embodied in
the rule that everyone who acquires or comes into possession of
something at the expense of another without just or legal ground
must return the same)
(c) Political ideals – are meant rational theories and syntheses for the
fuller direction of the political processes and for the maintenance of
the general welfare and security of the people.
Example –
Un Moi Commun - Jean Jacques Rousseau posited the idea that
general will resides in the people. Since general will is directed
toward the common good then it is always just and should prevail
for the voice of the people is the voice of God.
This ideal was applied to Pavesich v. New England Life Insurance
Company, and Metropolitan Service v. Paredes (Phil SC) stated that
“sovereignty is derived from the will of the people, by the people,
and for the people”
(d)
Economic ideals – meant rational theories and syntheses for the
efficient development of the economy. They refer to the economic
goals for the betterment of supply of limited goods and services and
their distribution to meet the enormous needs of the people.
4. Nonjural Law
A. Divine Law
(1) General Sense
Broadly speaking, divine law is the entire system of perfection which
God, in His infinite wisdom, has imprinted in the whole of nature to
govern its operations. The ancient Roman jurisprudents fondly called it
jus divinum.
(2) Strict Sense
In this connotation, divine law means the law of religious faith which
concerns itself with the concepts of sin and salvation, of death and life,
of the temporal and the spiritual. It is generally agreed that in this sense,
divine law is revealed by God to humankind through various means of
revelation, such as vision, mystic dream, and deep religious experience.
- Christianity: Divine law is found in the Old and the New Testaments
of the Bible. In the Old Testament, divine law is embodied in the Ten
Commandments. It is written that Moses, the great Hebrew leader
and prophet, received the Ten Commandments from God on Mount
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-
B.
Sinai, in the wilderness of the Sinai Peninsula. These Commandments
which are the epitome of man's duties toward God and his neighbor,
are the religious laws believed to have been formally given by God
through Moses.
Islam: Divine law is embodied in the Quran as well as in the sunna
and hadith of Muhammed. The Quran is regarded by traditional
Muslim belief as the very word of God revealed to Muhammed
through the archangel Gabriel.
Natural Law
(1)
Historical Background
- Sophocles (496-406 B.C.) considered natural law as a "higher law"
enjoying primacy over human conduct and order.
- Plato (437-370 B.C.) straightened the way for the development of
the natural law as a discipline to which human conduct and
relationships must conform in order to realize both the individual and
common good. Plato drew a dividing line between the ideal natural
law, which he characterized by the "ought" and its defiled
representation, which he delineated by the "is". Thus, Plato
emphasized the contrast between the natural and the
representational concept of justice. Plato distinguished between
what.is just by natural law and what is just by positive law.
- Aristotle (384-322 B.C.) gave a clearer distinction between natural
justice and legal justice. Aristotle differentiated between fair equalityperfect justice and what is due and proper-imperfect justice. Citing
Sophocles, Aristotle posited the idea that the former is binding
everywhere even in the absence of communication or contact among
different peoples, as contrasted with the latter which cannot be
general without some kind of agreement. Thus, for Aristotle, what is
due and proper may sometimes be contrary to what is fair and equal.
- At the time of the Stoics: All men are equal by divine right since all
men are of divine origin. Their outlook on life was characterized by
mental fortitude, discipline, and serenity in meeting uncertainties and
difficulties. Surveying the worsening conditions of life and order in
the civil societies in the waning period of Roman rule, the Stoics
turned their attention to the regularity and uniformity of nature. To
gain a life of discipline and calmness one must live naturally - to live
and move according to nature. For the Stoics then human conduct
must be brought in agreement with the abiding character of nature.
- It was Epictetus (50-125 A.D.), a later Greek Stoic philosopher and
contemporary of St. Paul, who enhanced the metaphysical
significance of natural law on the basis of his aversion to materialism.
He believed that the moral nature and good faith of human beings
are defeated by dependence on material things. On the basis of this
metamaterialistic perspective, Epictetus viewed the natural law as a
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-
-
(2)
-
-
-
discipline engraved, as it were, in the heart and mind of human
beings. Having attached the natural law to the moral nature of human
beings, the natural law became the participation of humankind in the
divine law. Thus, natural law became the core of human personality
and dignity enabling a person to act with righteousness and justice.
St. Paul, apostle and theologian, deepened the Greek concept of the
natural law. In his letter to the early Christians in Rome, he spoke of
persons "who have no knowledge of the law act in accordance with it
by the light of nature, they show that they have the law in themselves
for they demonstrate the effects of the law operating in their own
hearts, their own conscience endorse the existence of such law, for
there is something which condemns or commends their actions." He
is stressing conscience guided by love and reason at the same time
emphasizing the reality that there are people who act according to
natural law even though they may have no idea about it. The reason
for this is that their conscience guided by love convince them of the
righteousness of commendable actions. This is St. Paul's concept of
enlightened conscience as judgment or choice rooted in the heart and
mind of man.
Augustine in turn echoed St. Paul when he expressed the view that
good faith is present in all human beings, not excluding the perverted
and the depraved, without regard to race, creed and station in life.
Thus, Augustine concluded that no one can really plead ignorance of
the natural law because his innate good faith and moral nature are
never silenced.
Concept and Precepts
Since the natural law is said to be present in and binding on all
persons at all times its precepts have been considered as continuing,
protective principles that hold for every human society
notwithstanding differences in ethical conceptions of expressing them
outwardly.
The Universal Declaration of Human Rights and the European
Convention on Human Rights are pointed out as the modem
expression of views of many different nations of widely differing social
and political ideas and philosophies. These agreements are not the
result of political agitation, propaganda or rhetoric but of the
presence in all human beings of the precepts of the natural law.
The concept of the natural law may be stated as the universal
discipline of virtue impressed in the heart and mind of human beings
to guide them in the exercise of their rights, in the performance of
their obligations, in the observance of rules, and in the preservation
of peace and unity.
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-
-
Essential matters:
o the scope of natural law which is universal
o the character of natural law which is a discipline of virtue
o the relation of natural law to humankind which is its impression
in their hearts and minds
o the thrust of natural law which is to guide human beings in their
acts and utterances
Precepts:
o Righteousness is the virtue of doing that which is right
o Justice is the attribute of administering that which is just among
persons
o Fairness is the quality of being honest
o Equality is the character of being impartial
(3)
(a)
-
-
-
-
-
-
Place and Function in Legal Order
Justificatory Use
The natural law has been used to warrant some legal innovation,
or to support some claim to authority, or simply to vindicate one's
side of an issue or personal conviction.
The natural law theory was also used to warrant the acceptance
of certain innovations in the law of nations. Alberto Gentili (also
known as Gentiles), Jugo de Groot (also known as Grotius) and
Puffendorf used the natural law theory as a broad basis for their
respective works dealing with the body of rules governing the
relations of sovereign states and entities which are endowed with
international personality. All three pub Heists called this body of
rules the law of nations. Jeremy Bentham was later to call it public
international law.
The natural law theory was used by jurists-theologians to justify
the claim of the Romish Church to temporal powers.
Martin Luther also utilized the natural law concept in his drive to
modify and purify the older Church order and, later on, to advance
and support the Protestant Reformation, which contributed
greatly to the rapid rise of nationalism in Europe.
John Locke, too, used it as the basis of his philosophy of natural
rights which he posited as inalienable. John Locke also used the
natural law to justify and warrant the people's withdrawal of
governmental power whenever the government persistently and
deliberately fails or flouts the will of the people.
In more recent times, the natural law theory gave powerful
support for the Nuremberg concept of "crimes against humanity"
and for the Declaration of Human Rights of the United Nations
Organization.
The natural law was utilized to justify the EDSA revolution in the
Philippines which crystallized the idea of people power.
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The natural law theory has also been utilized to justify innovations
in the legal system. For instance, in the Philippines the Code
Commission placed the precepts of "justice and equity above
strict legalism or form" in providing rules concerning such legal
concepts as quieting of title, reformation of instruments,
estoppel, trusts, and natural obligations.
(b)
-
Oppositive Use
The proponents of the natural law theory cannot seem to
overemphasize the idea that the natural law does not
countenance
blind
obedience.
For
them,
"nonviolent
noncooperation with evil is as much a duty as is cooperation with
good."
(c) Regulatory Use
- The regulatory use of the natural law is rooted in the ancient
maxim lex injusta non est lex on the dicta of Cicero and
Thomas Aquinas.
-
For Cicero, the natural law has definitely this function because it
is not allowable to deviate from the natural law, nor can it be
altered or abrogated. Neither can the people be released from this
law either by the State or by the people themselves.
-
Thomas Aquinas, on the other hand, posited the idea that every
law enacted by the legislature enjoys the character of law to the
extent that it is derived from the natural law.
-
Two grounds advanced by those who favor the regulatory use of
the natural law:
o The first is that no statute can violate the precepts of the
natural law without producing an adverse reaction from the
people. It is not possible, then, that the people would have
yielded or entrusted power to their representatives to enact
statutes which would be "in violation of common right and
reason.
o It is contended that the people themselves may have
expressed their preference for the precepts of the natural law
in their constitution in establishing the state.
-
Reasons why legal positivists disagree with the regulatory use of
natural law:
o The natural law is not a part of the legal system. It is merely
"the virgin gold of the mine ... unlike positive law which is
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classified, reduced to order, and put in the shape of rules, the
coin in the mint, with its value ascertained and fixed."
o The natural law has no place in a politically organized society
where there is no particular established religion.
o It is antithetical to a good legal order. For stripped of its
abstract trappings, it advances the idea that legislative
enactments can be adjudged twice. First, by the constitution.
Second, even if constitutional but allegedly bad or evil, by the
natural law.
C.
(d)
-
Interpretative Use
The use of the natural law theory in the construction or
interpretation of statutes arises when a particular situation or
condition is apparently within its spirit or purpose. This is
expressed in the familiar canon of statutory interpretation that a
thing which is within the letter of a statute is not within the statute
unless it be within the intention of the legislature.
-
The second use of the natural law theory in statutory construction
or interpretation arises when a particular situation or condition
apparently not within the words of a statute is nonetheless within
its essence and purpose. This is signified in the equally familiar
rule of statutory interpretation that a thing which is within the
intention of the makers of a statute is as much within the statute
as if it were within the letter.
Moral Law
(1)
Moral Order
This is the set of same reasonable and desirable standard of behavior
growing out of the same collective experiences.
(2)
Moral Norms
Moral norms are patterns of good and exemplary conduct which set
the moral tone or feeling of the community. They determine what
conduct or behavior may or may not be allowed or what acts may or
may not be done. They are the aggregate ethics of the community.
- Moral norms are positive and peremptory.
- Moral norms are not relative, advisory, or customary because they
are not subject to passing desires or opinions.
(3)
-
Moral Law and Other Disciplines
Divine law in the strict sense is the law of religious faith. Moral law,
while also concerned with the precepts of good and right conduct as
the basis of its norms, is not necessarily concerned with the law of
religious faith. For a person may not be religious and still be ethical.
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D.
-
Moral law differs also from physical law. The latter is the totality of
uniformities and orders of sequence which combine together to
govern physical phenomena.
-
Moral law differs from jural law insofar as enforcement is concerned.
While jural law is enforceable in the courts. Moral law is enforced
only by indefinite authority for there are no courts in which it is
administered as such.
(4)
-
Moral and Social Norms
Social norms deal with objective conduct only. They are really a
matter of unpredictable times, fickle usages and changing
circumstances. The fact is that actual valuations in social living are
diverse at different times and places.
-
Social rules may even vary with each ethnic group of a particular
class of people. What is socially allowed in one part of a country
may not be so in another part of the same country.
-
Social rules may prohibit something at one time and permit it at
another time and vice versa.
Physical Law
It is also known as the law of nature.
(1)
Nature and Attributes
- Physical laws are imperative because they are fixed and unbreakable.
- Physical laws are also regular because there is no break in their
sequence or constancy.
(2)
Discovered Norms
- Physical law should neither be confused nor equaled with the norms of
physical law as these are stated by their discoverers.
- The norms of physical law as stated by their discoverers are
generalized propositions or statements of observed phenomena
concerning order and regularity in the happening of certain natural or
physical events.
(3)
Distinguished from Jural Law
- Since physical law is imperative and regular, its norms can be reduced
and worked out in mathematical equations. This is something that
cannot be properly done in case of the norms of jural law because such
norms are either prescriptions or proscriptions.
- The rules of jural law depend for their fulfillment upon human volition
or will, while the norms of physical law operate inevitably independent
of the human will.
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(4)
Distinguished from Divine Law
- Physical law is not exactly divine law. Physical law may, however, be
considered divine in the sense that it is ordained by God for the course
and operation of the cosmos or universe.
- Divine law in the general sense is similar to physical law. But this is as
far as the similarity goes, for divine law in the strict sense is not the
same as physical law. The former is the law of religious faith.
16
Chapter 2: THE HISTORICAL PERSPECTIVE
1. Historical Perspective as a Starting Point
Freidrich Karl von Savigny (1779-1861) held that the law proceeds from the
volksgeist. For Savigny, the concept of the soul and spirit of the people (diwayan)
provides the sense of beginning and unfolding of the law. It is still useful in the
evaluation of the legal development of a nation especially its legal history.
2. Historical Element in the Law
The presence of the historical element in the law is thus manifested by at least
two important marks: 1) the changes in the social existence of the people, and
2) the progressive conditions of their politico-legal development.
3. Historical View Limited in Scope
- Historical jurisprudence accepts the idea that what is peculiar to a group of
people is not necessarily true for another group of people.
- Each group of people has its own folksoul persisting from generation to
generation.
- In historical jurisprudence, the law is not universal in scope. It is only national
in character, conservatively oriented to the time, place and individuality of a
particular group of people.
4. Nature of the Law
"The law is the product of the huge mass of beliefs, opinions, prejudices, and
even superstitions of a people produced by institutions of human nature reacting
one upon another." - Henry Sumner Maine (1822-1888)
A. The Oblutiacs of a People
Having achieved a language, people began to articulate themselves by means
of their opinions, beliefs, longings, usages, traditions, idiosyncracies, arts,
customs, and superstitions. This huge mass of oblutiacs reveals the national
identity, character and genius of a people. Together they form the common
consciousness and intelligence of the people.
B. The Folksoul
The folksoul (diwayan) is composed of several elements, each element a
treasury of the national identity, character and genius of a people. While these
elements belong to the folksoul they are distinct from one another.
(1)
Folklore
In this treasury are deposited the beliefs and traditions of a group of
people, constitute the folk learning or folk wisdom handed down from
generation to generation in substantially the same form and content.
That is why beliefs and traditions have been called lore – the learning
17
of the people. Folklore may survive in the form of epic tales, parables
and riddles.
(2)
Folksaying
This treasury of the folksoul is composed of the opinions of the people.
These opinions are stronger than mere impressions. They are
expressions or announcements of orders and policies which the
members of the community are expected to follow.
o A maxim (sawikain) is a short or terse statement containing a
general truth or a timeless rule of conduct.
o A sentiment (sabi) is a settled sense, view or disposition colored by
feeling.
Non-Jural Examples:
- "Pag-aasawa'y di biro/ Kanin bagang isusubo't iluluwa kung
mapaso."
- "Mabuti na ang mamaLay na malinis ang budhi/ Kaysa mabuhay
na parang pusali."
- "Kung mainit ang kalan/ Huwag hipuin ng di na masaktan."
Jural Examples:
- "Ang mag-asawa sa ariarian ay iisa."
- "Huwag kang pumasok sa bakuran nino man nang huwag kang
masakupan."
- "Daig ng maagap ang masipag."
(3)
Folkway
Folkways (kaugalian) are composed of customs and usages of the
people which make them reliable expressions of the folksoul.
Examples: pagmamagulang, lupon sanggunian, maybahay, bigay-kaya,
bigaypayo
(4)
Folksong
This treasury of the folksoul reflects the musical expressions innate
to a people.
(5)
Folkdance
In this category of the folksoul are included the dances indigenous or
unique to the people. They are performed to folk music either singly or
in company with others. Two characteristics:
- Significance or translation attached to them
- They are not for happy occasions alone but even for grim and
difficult times
(6)
Folkart
18
This category includes skills peculiar to a people applied to the creation
or fabrication of objects of art or objects of utility.
5. Life of the Law
- During the course of time many opinions, beliefs, usages, traditions, and
customs were either discarded or improved. Those that survived the
interactions of human relationships and institutions and have permeated the
people in common eventually solidified into the volkrecht or kautusan.
- The organic connection of the law with the life and spirit of the people
emphasizes the phenomenon that "for law there is no moment of absolute
cessation." The law is subject to the same changes that happen to the other
aspects of the life of the people.
- While the law grows with the development of the people, the law can die too
with the demise of the nation through the loss of the nation's individuality.
6. Basic Points of Historical Jurisprudence
In the framework of the historical view as to the nature of the law, two important
points stand out. First, the state is regarded as the highest expression or
personification of the law. Second, the law is found and not deliberately made.
A. State and Folksoul
The state is considered as the highest expression of the folksoul. Indeed, it is
the highest national structure erected by the socio-political development of
the people. Putting the point in another way, the body politic is considered by
historical jurisprudence as the final juristic personification of a people.
B. Law Not Deliberately Made
The law is not deliberately made by the effort of human will but is discovered
in the common consciousness of the people. Thus, historical jurisprudence
posits the idea that since the law "cannot be realized in the individual but only
in the species," then the law is the product of the national genius or common
consciousness, developed by the steady growth and development of the
people themselves. But while the law lives in the common consciousness of
the people, its meaning and impact on the community are handled by a
specialized group of individuals versed and skilled in the law. These are the
men of law- jurisprudents and jurists.
7. Similarity of Different Legal Orders
A. Historical Reason
- Political, commercial, religious and other types of contacts with other
groups of people have had a great deal to do with the resulting similarity
or even uniformity in the legal orders of different peoples.
- Some aspects of a foreign legal system inconsistent with the oblutiacs of
a people coming under the dominion of another group of people need a
19
-
considerable degree of imposition. Ultimately, however, such outside and
unacceptable provisions of the foreign law are abolished.
Example: When the Civil Code of the Philippines was instituted in 1949,
certain provisions of the Civil Code of Spain touching on dote, censos, usos,
and habitacion, which were inconsistent with the oblutiacs of the Filipinos,
were abolished.
B. Jurisprudential Reason
- The concept of a regular and progressive development of the law should
also explain the similarity or uniformity of different legal systems even in
the secondary applications of general or first principles.
- Different peoples may have particular legal rules, more or less similar, for
the resolution of the unjust and unequal situation referred to.
- Example: The Philippine legal order provides as a general rule that actions
prescribe by the mere lapse of time fixed by law. Thus, in the secondary
application of first principles the similarity in, or uniformity of, some
aspects of the legal orders of different peoples is still explainable.
8. Value of Historical Perspective
- The historical view of the nature of the law highlights the point that rules and
regulations governing human conduct can better survive the tensions of social
and political existence if and when they are in accordance with the kindred
consciousness and convictions of the people to whom such rules and
regulations are, after all, addressed.
- Several confirmatory provisions in the Civil Code of the Philippines:
o Article 10 of the Civil Code of the Philippines provides for the presumption
that the lawmaking body intended right and justice to prevail whenever it
enacts a statute. This is a jural expression of the profound sense of, and
love for, righteousness and justice of the people.
 Ilubog at dagnan man ang katwiran/ Ay pilit itong lulutang.
o Articles 19 through 36 of the Civil Code express the Filipino folkway
concerning human relations. They are basic principles that are to be
observed for the rightful relationship between human beings and for the
stability of the social order.
 Mahalaga ang puring patay/Sa masamang puring buhay.
 Masira man sa pamimilak/Huwag lamang sa pangungusap.
o Articles 198 through 211 of the Civil Code of the Philippines: It is nearer
to the ideal of family unity and is more in harmony with the traditional
oneness of the Filipino family.
20
Chapter 3: THE TELEOLOGICAL PERSPECTIVE
1. Labels
- The label "philosophical jurisprudence" has been used to identify the thinking
and method of this juristic school. The reason for this is that the major part
of its discourse lies in the realm of metaphysics.
- This label emphasizes the fundamental point of view of this juristic school:
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.
- For this juristic· school, the achievement or realization of these precepts in
the legal order is the telos of the law.
2. Natural Law Basis
- The teleologists consider the natural law as the most potent force in the
development of legal institutions and legal concepts. This is based on their
view that there is a very present bond or relationship existing between
positive law and natural law.
- With the possible exception of some modern teleologists who advocate the
concept of the natural law with a changing content, 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 peoples.
3. The Greek Concept
- Socrates, Plato and Aristotle believed that good faith in dealing with one
another is the condition of life in society. This means that human beings have
a basic idea of the precepts of the natural law enabling them to distinguish
between right and wrong and to discern between good and bad.
- They found their unassailable starting point in the study of the nature of law
in the moral nature and good faith of human beings. On this basis, not power
or might, human beings are able to live harmoniously with one another.
A. Absolute Justice
- No person is intentionally bad or evil because of his or her understanding
of justice; the failure to do what is just and avoid what is unjust is really
due to morbid physiological appetites, mistakes, or even bad company.
Socrates drew a distinction between absolute knowledge of justice
(episteme) and mere opinion of justice (doxa).
- Only the temperate person knows himself or herself and thus able to bring
his or her emotions under control. Socrates explained that in relation to
the gods 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 will
act properly, patiently enduring when necessary. A 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).
21
B. Rational Justice
- The reality or idea of "justice" exists in the mind even though one does not
see it done or performed in fact. Plato posited the concept of justice
yielding to the rational mind.
- 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.
- The law is an instrument of doing justice in the state, that is to say
preserving peace and harmony therein. Rational justice dictates that every
individual in the state should attend to his or her own function whether he
or she is a legislator, a judge, or whatever.
C. Particular Justice
- 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. Aristotle did not also agree with Plato's concept of rational justice
because it was still a subjective virtue.
- Justice is sound and sensible when, in light of events and circumstances,
it is fair and equal. In this context, Aristotle insisted that a person cannot
be unfairly or unequally treated even with her or his consent. Consent
cannot justify an unfair and unequal treatment. This Aristotelian insight
later became the basis of the Roman law concept of volenti non fit
iniuria ("to a willing person, injury is not done").
- Put differently, justice is a particular virtue not a universal ingredient in
the application of law in society. In the thinking of Aristotle, the rigidity of
the administration of justice, which is apparent in the jurisprudence of
Socrates and Plato, should be tempered with fair equality.
- Proportional justice and numerical justice differentiated. In the former,
each person receives what she or he is entitled to on the basis of ability
and achievement. In numerical justice, each person, regardless of station
in life, counts for one and only one.
D. Law as the Product of Reason Related to Justice and Equity
- Righteousness, justice, fairness, and equality are the potentialities of the
law. To this end all persons are to conform their actions because such an
end is part of the natural order of things. Aristotle, in particular, stoutly
believed that the law, viewed in this light and applied to particular
situations, would provide a generally acceptable solution.
4. The Roman Concept
A. Cicero
- According to Cicero, since humankind "is governed naturally by utility,
then, to rule the different races and cultures under the Roman dominion
22
-
-
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.
He introduced compulsion as an element of the law. He 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.
Cicero 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 just and fair. An act may be against a legal rule but it may still be just.
B. Gaius
- Gaius advanced the view that the rules established by the citizens to
govern themselves fall under the jus civile, while the rules common to all
other persons based on the natural law are classified under the jus
naturale.
- 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. They do not contribute to the maintenance and
preservation of lawness. On the contrary, they are conducive to
lawlessness.
Laws must be reexamined by the lawmaking body every once in a while.
This process would 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.
5. The Aquinian Concept
- Thomas Aquinas thought of the law as an institution ordained by God. Here
the Greco-Roman notion of (impersonal) nature as the source of the law
was substituted by the power of God who is "the Legislator of the whole of
justice and Governor of all things." The people are then bound to obey
secular rules only to the extent that the precepts of the natural law are
met.
- Thomas Aquinas stated that "kings must be subject to priests, therefore,
as soon as a ruler falls under sentence of excommunication for apostasy
from the faith his subjects are ipso facto absolved from his rule and from
the oath of fealty which bound them to him.
- Thomas Aquinas 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.
38 But a human being has also a nutritive soul.
- 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.
Human beings have biases and prejudices making it difficult to agree with
them even when they claim to be acting in a reasonable manner.
23
-
-
Right reason is the governing rule of human conduct "for the common
good, which is preferable to one's proper good, because the common good
of the whole is God Himself."
Should any rule or measure of action depart from the precepts of the
natural law, then it ls no longer valid but a perversion of the law.
A. Justice
- Justice as an ethical virtue - considered justice to be inherent in every
person.
- Justice as a juristic norm - considered justice as "the habit whereby
man renders to each one his rights by a constant and perpetual will.
B. Law and Sovereignty
- Sovereignty itself is, of course, not subject to law, for it is the author and
source of law, but in our system while sovereign powers are delegated to
the agencies of government, sovereignty itself remains with the people by
whom and for whom all government exists and acts. And the law is the
definition and limitation of power.
C. Immutability of Law
- The doctrine that the subsequent application of first principles may be
periodically expanded or contracted in accordance with the prevailing
conceptions of the times finds basis in the distinction drawn by Thomas
Aquinas as to the immutability of the law.
- 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.
6. The Kantian Concept
By transcendental philosophy, Immanuel Kant (1724-1804) means learning or
understanding determined by the mind itself. It is pure knowledge for it is not
gained by or through sense experience.
A. Human Consciousness and Conduct
- The human mind has the capacity to construct or harmonize ideas and
concepts even prior to experiencing them by the physical senses.
- The truth and certainty of ideas and concepts depended on subsequent
experience or consequence, then they would be correct only a posteriori
but not a priori.
- Since the human mind is capable of forming and harmonizing ideas and
concepts independently of experience or consequence, then they would be
valid for all rational individuals at all times in all places which would make
them dependable guides to human actions and conduct.
24
(1) The Principle of Rightness
The precepts of the natural law are not prompted by sense-experience but
by ethical altitude to do what is right and avoid what is wrong with the
application of the unique faculties of human consciousness, namely,
thinking, volition and judgment. This unique capacity for moral choice sets
human beings apart from other creatures. Kant called this the principle
of rightness.
(2) The Categorical Imperative
Immanuel Kant concluded that the universal criterion of right conduct has
to be categorical, that is to say one with its own unequivocal merit, valid
and good in itself, which all the people would know at once without
reference to subsequent experiences or conditions. Kant also concluded
that the universal criterion of right conduct has to be imperative, that is
to say compulsory and mandatory. Thus. Kant called his one and only
universal criterion of right conduct the "categorical imperative" and
expressed it in this wise: All persons living in society must act in such
a way that the maxim or cause of their conduct and decisions
would become the maxim of a universal law.
B. The Sense of Striving for Rightness
- First, Kant reiterated Aristotle's position that the philosophy of the natural
law should seek the level of humanity.
- Second, Kant reconciled the seemingly inconsistent notions of human
freedom and the demands of moral duty, thereby giving meaning to the
collective interests of the people.
C. Metalegal Basis of Law
- The clearest implication of this concept of the nature of the law is that an
individual can act freely when he or she strives for the ethical. For, as
Immanuel Kant puts it, "if the intention is not to teach virtue but only to
teach what is lawful, then, we need and ought not to adopt the law as a
guide for our conduct." It follows that a person cannot be treated merely
as a means to the telos of the law.
7. The Utility Supplement
- The doctrine of utilitarianism is traceable to Epicurus (342-270 B.C.). Since
then teleologists with the utilitarian complexion have considered happiness
as the measure of the goodness or badness of acts and their consequences
based on the hedonistic calculus.
- The telos of the law are the pleasures that are conducive to repose of both
individual and societal needs. Repose of mind, explained Epicurus, is the
situation or condition denoting freedom from pain.
25
-
-
The legal ordering of society must always be directed to the overcoming
of pain. This is based on the fact that pain appears to be the major part of
human existence and pleasure a temporary or transitory release from pain.
To achieve this end, modern utilitarians posit a combination of the theory
of the good (happiness as the highest good) and the theory of value (the
usefulness of an act or conduct depends on its consequences).
A. Stages of Modem Utilitarian Ethics
There are two distinct stages in the development of the modern utilitarian
supplement to the teleological perspective of the nature of the law:
Benthamite and Jherinian.
(1) The Benthamite Concept
Jeremy Bentham (1748-1832) felt that while an individual is a part of a
politically organized society, nevertheless, there remains an element of his
individuality that is not merged into society of which he is a constituent
part. It was Bentham's enduring contribution to jurisprudence to have
insisted with a reformer's zeal that the true worth of an act or conduct
depends on its consequence to the individual interest. This is the stage
that started individualist utilitarianism.
(a)
Nature Basis
- Bentham utilized the same considerations that Epicurus and Plato
mentioned to be the foundation of an expedient theory of the nature
of the law, namely, what pleasures ought not to be sought and what
pains ought to be avoided.
- A person instinctively seeks and enjoys pleasure or happiness and
shuns and loathes pain or misery.
(b)
-
-
Measure of Utility
Bentham provided a measure of utility in terms of pleasures and
pains to evaluate the effects of acts and conduct on the greatest
happiness of the greatest number of individuals in the community.
Pleasures of the physical senses
 of wealth, which are either of acquisitions or of possessions;
 of amity or self-recommendation which refer to the possession
of the good will of a particular person or persons
 of a good name or reputation,. which refer to the possession
of the goodwill of the society about him
 of power, which refer to the possession of the ability and
capacity to order or direct people by means of their hopes and
fears
 of piety, which refer to the possession of the good will or favor
of God either in this life or in the hereafter
26
of benevolence, which refer to the possession of charity or
human sympathy, good nature, tolerance, consideration, or
mercy
 of malevolence, which refer to the possession of ill-will, malice.
or antipathy on those who may become the objects of
malevolence
 of memory, which refer to those which one may experience at
recollecting some prior pleasurable experiences
 of imagination, which refer to the contemplation or
consideration of any pleasure which may be, in point of time,
present, past or future
 of expectation, which refer to the contemplation or
consideration of some future kind of pleasure accompanied by
the sentiment of belief
 of the ones dependent on association resulting from or growing
out of some association or connection with certain objects or
incidents which are in themselves pleasurable
 of relief, which refer to experiences which have to do with
cessation of pain
Pains of which human beings are susceptible to:
 of privation, which refer to pains resulting from failure to
possess any of the several kinds of pleasures and include pains
of unsatisfied desire and pains of regret
 of senses, which are related to disagreeable sensations
 of awkwardness. which refer to the consciousness of lack or
want of skill or finesse
 of enmity, which refer to the pains which sometimes results
from the non-possession of the goodwill or the possession of
the ill-will of a particular person or persons
 of bad reputation, which refer to the non-possession of the
goodwill or the possession of the ill-will of society
 of impiety which refer to the non-possession of the goodwill or
favor of God
 of benevolence, resulting from the thought that someone who
happens to be the object of one's sympathy is enduring pain
 of malevolence resulting from the thought that someone who
happens to be the object of one's antipathy is enjoying
pleasure
 of memory, which refer to those which one may experience at
recollecting some prior painful experience
 of imagination, which may be derived from the contemplation
or consideration of any such pains which may be, in point of
time, present, past or future

-
27


-
of expectation, which refer to the contemplation or
consideration of some future kind of pain accompanied by the
sentiment of belief
of the ones dependent on association resulting from or growing
out of some association or connection with certain objects or
incidents which are in themselves painful
Two ways of measuring the utility of an act and its consequences:
 The first is composed of several circumstances or factors, viz:
 Extensity, which refers to the number of person affected
 Endemic, which falls on certain individuals; it is called
primitive if it is confined to one individual, but it is called
derivative if it falls on certain individuals because of
their relations with, or their interests in, the first
enjoyer or sufferer
 Epidemic, which affects a larger number of individuals
in a community due to their awareness or consciousness
of the existence of the pleasure or pain; with regard to
pain, it may either be alarming or dangerous depending
on the factors characterizing it
 Pandemic, which falls on or spreads out to the entire
community
 Intensity, which refers to the degree of the pleasantness
or painfulness at a given time or over a given period of
time
 Duration, which refers to the period of time the pleasure
or pain lasts
 Propinquity, which refers to the influence of the more
immediate rather than the remote pleasures or pains
 Fecundity, which refers to the tendency to produce or lead
to either pleasures or pains
 Purity, which refers to the tendency not to produce either
pleasures or pains
 The second way of measuring the utility of an act or conduct
is also composed of several factors which have a great deal to
do with personal or individual differences as to sensibility to
pleasures or pains.
 These factors are temperament, health, strength, physical
defect, relationship, education, physical condition, mental
condition, sex, age, rank, occupation, trade, profession,
religion, honor, sympathies, antipathies, ethnic group, and
inclination.
28
(c)
-
-
-
(2)
-
-
-
Application in the Legal Order
With this Jeremy Bentham sought to test all legislation and all acts
by their bearing on individual human happiness or misery. Bentham
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 judged by their tendency to promote happiness
and avoid pain.
To this end, Bentham specified the ends of the law, namely, "to
provide substance, to produce abundance, to encourage equality,
and to maintain peace and security."
This can be accomplished by direct pursuit of pleasure and avoidance
of pain.
The Jherinian Concept
Rudolf von Jhering (1818-1892) posited that there should be a
concurrence of selfish individual interests with the general purposes of
society.
When the interests of society are met, then, the welfare of society is
served and. consequently, the welfare of the individual members of
society are met too.
An act or conduct is good when it takes into consideration the interest
of society and tends to augment the happiness of the entire society.
Thus, the Jherinians are social utilitarians.
(a)
Law of Purpose
Jhering's social utilitarianism is based on two principles:
- Principle of Purpose. Jhering stated that "purpose" is the prime
mover of the law. Choices and decisions are made for a purpose.
Human actions are thus end-directed. If the exercise of the human
will is determined by some external cause, then there is no more
reason to hold a person accountable and responsible for what he or
she does or does not do. Put differently, a wrongdoer could very well
plead the "because of” in order to relieve himself or herself of
responsibility for his or her conduct.
- Nature has endowed human beings with an interest in pleasures and
an inclination to shun pain. An act or conduct is subject to pleasures
and pain, but individual interests can best be realized in concurrence
with the collective purposes.
(b)
Social Mechanics
To realize the partnership or concurrence of individual and social
purposes, the collective society or the politically organized society
applies its influence on the people by means of egoistic and altruistic
levers – this is social mechanics.
29
-
Egoistic levers. This type of levers refers to incentives addressed
to the region of self-interest or selfish purposes.
 Egoistic non-coercive lever are the fact or event of reward
and the fact or event of association.
 lever of reward are expectations of honor, respect, or
income
 lever of association are expectations of acceptance by
individuals or society providing a powerful incentive to the
individuals in the community to pursue interests where
others can share or participate in
 Egoistic coercive lever are the mechanical and psychological
means
 In the mechanical lever of coercion, society itself acts in
order to master, subdue, or break an individual's purpose.
Thus, for example, the state may send a person to prison
in order to prevent him from further realizing his criminal
fecundity.
 In the psychological lever of coercion, pressure is exerted
by society, just as in the first case, but the mastering or
breaking of the individual will or purpose is done by the
subject or person concerned. To pursue the example given
above, a person subdues his or her own criminal tendency
when he or she sees that those who violate the laws of
society are punished for their wrongdoings.
-
Altruistic levers. This type of levers are directed to the benevolent
or generous interests of the members of society.
 In the feeling of duty, there are certain responsibilities and
tasks enjoined on the individual members of society so that
the conditions of social living can be realized or accomplished.
 In the lever of feeling of goodwill, the purposes of society
are served by the love of family and the love of country. Thus,
solidarity and patriotism are outward forms of the altruistic
lever of feeling of goodwill.
B. Value of the Utility Supplement
- The principles of utilitarian ethics are applicable to and of good use in legal
theory, especially the development and thrust of the law. Both individual
interests and collective purposes should become the end or object of the
science and art of legislation.
o The science of legislation is the knowledge of the good for the
community.
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o The art of legislation is finding ways and means to realize or
accomplish that good.
The principle of utilitarianism has been applied in the field of human rights.
o Bentham: that equality is one of the main aspects of law and in
reviving the importance not only of the right to life, personality and
dignity but also the collective purpose in the conservation of human
resources.
o Jhering's social utilitarianism sought a balance between individual
interests and the purposes of society, which Roscoe Pound later
developed into a theory of social engineering of the conflicting or
overlapping interests. Jhering's classification of purposes into
individual, political and social was also Pound's basis for his theory
of social interests in which he identified and labeled the generic
interests of society.
8. The Hegelian Concept
- Georg Frederich Hegel (1770-1831) took a somewhat different direction in
the study of the problem of the nature of law. Hegel stated his basic premise
that "the law is the product of an evolutionary process." But unlike
Savigny's concept of the volksgeist as the basis of the evolutionary process
of the law, Hegel's evolutive process appears in a dialectic pattern that has
two elements whose struggle between them is either wholly or partially
settled or reconciled by the synthesis of the contending views:
o Thesis
o Antithesis
- Principle of Identity. It states that "all that is rational is real and what is
real is rational." By this Hegel means that nothing is real or actual unless it
is intelligible or rational as well. Thus, anything which is intelligible is actual
and anything that is actual is intelligible. The principle of identity seeks the
reconciliation of opposite views or ideas.
- Hegel held that all concepts are actualized by this dialectic movement, that is
to say a concept (thesis) may evoke an opposite idea (antithesis) and out of
their reconciliation or identification emerges a new concept (synthesis). The
synthesis becomes the prevailing idea or view of the times until an opposite
antithesis appears and reconciliation or identification of the competing ideas
or views is again necessary.
9. The Neo-Hegelian Twist
- The Neo-Hegelians skillfully used Hegel's concept as the basis of their theory
of law-power in the hands of the party-state, where there is no separation of
the powers of government.
- This distorted interpretation of Hegel's philosophy of law and state made a
very strong appeal to socialists, like Karl Marx and Nicolai Lenin. Marx saw
immediately the thesis and antithesis in contemporary society, that is to say
bourgeois and proletariat. Marx used Hegel's dialectic idealism and came up
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with his (Marx) own philosophy of dialectic materialism, that is to say the
withering away of the bourgeois social and legal orders and the emergence
of the dictatorship of the proletariat.
10.
Modem Teleological Analysis
A. Juristic Approach
- Modern teleological jurisprudents, notably Josef Kohler and Sidney Hook,
consider a knowledge of right and wrong or good and evil that is relative
to the changing conditions of time, place, and people.
B. Ethical Relativity
- Kohler: "there is no ideal absolute or absolute ideal." There is simply
no absolute formula (e.g., natural law philosophy] to determine the
different aspects of the legal ordering of society. Kohler emphasized that
"legal concepts, including law, have their respective ideal tendencies not
the same tendencies."
o Example: the principle that ignorance of the law excuses no one from
compliance therewith, particularly in crimes mala prohibita, where
intent is immaterial. Should this be tempered with "sound reason
and mercy?" Are not common sense and compassionate treatment
of an offender or adversary changeable values?
 Was this, then, the reason why the principle was not applied
at all in the case of People v. Navarro, involving a thirteen year
old girl who was arrested for selling a tin of cocoa for an
amount eleven centavos more than the ceiling price, while
tending her sister's variety store when the latter was away at
the time?
 And is this the reason, too, why it is wrong to lie but not, it
seems, to deceive the enemy in times of war?
- Sidney Hook posited another direction. For Hook, the criterion of what is
right really depends on what he called the “primary desires” of the people,
which, however, are constantly in flux. The problem "of what is right and
what is wrong” is to be conceived as the equilibration of interests and their
adjustments to environment.
C. Interest of the State
- The interest in the integrity and stability of the state has been considered
the supreme morality or ultimate value of society. This is based on the
theory that if the state cannot protect its own structure, then it follows
that no subordinate value can be protected.
- The interest of the state has become the cardinal standard or measure of
actions in the legal order, especially with regards to judicial interpretation
and review of cases involving government and governmental problems. At
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-
11.
-
-
-
bottom, when an act or conduct and its consequence are in conformity
with the interest of the state, then they are considered as good and just.
David Hume posited the view that "reason is and ought only to be the
slave of passions." Reason recognizes utility but passion to be sure
provides the compelling force of all actions. Hume believed that an act or
an idea is either approved or disapproved on the basis of the public benefit
from it. It is obvious that justice in Hume's thinking may or may not be
endowed with fair equality i.e. that which fulfills the interest in the integrity
and stability of the state is justified and will be enforced by its coercive
power, even though it may be unfair in the individual cases.
Essential Attributes of the Law
Greco-Roman-Aquinian viewpoint: right reason in relation to justice and
equity is the essential attribute of the law; the law is considered binding
because it conforms to the precepts of the natural law.
Utilitarian viewpoint: the greatest happiness of the greatest number in the
community, in terms of both individual and social interests, is the important
attribute of the law; the law is binding because it is useful.
Modem teleological analysis: the free willing individual in a changing society
stands out as the essential attribute of the law.
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Chapter 4: THE POSITIVIST PERSPECTIVE
1. Seed of Legal Positivism
- Also known as analytical jurisprudence, "positivist jurisprudence"
emphasizes that the law is consciously created by the state. As such, the
law is positive, posited by the authority of the state.
- The seed of legal positivism was planted by Socrates. Plato recorded that
the followers of Socrates sent Crito to help 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.
2. The Positivist Approach
There are two important points underlying the positivist approach, both referring
to the question of the separation of law from moral law and from natural law.
A. Law Not Necessarily a Moral Concept
- John Austin: “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.”
- The law is not necessarily interested in or anxious for the norms of
morality. Moral considerations do not consciously precede the law,
although they may indirectly influence it.
- The relationship between law and morality is only accidental, not direct.
- The principal thrust, then, of the positivists is to keep the legal order apart
from the perplexities of ethics. The legal positivists are persuaded that the
legal order can exist without conscious regard for the norms of morality,
although the latter's influence are not completely denied.
B. Uncluttered by Metaphysical Speculations
- The positivist views the problem of the nature of the law by way of the
empirical sphere of reality - the is - rather than the transcendental sphere
of the ideal - the ought. The teleological idea of a supra positive law as
the standard of validity of positive law is criticized as "transcendental
nonsense." The reason for this critique is that the precepts of the natural
law are vague, for, indeed, their meaning are not shared in common by
everybody.
- The positivist school of jurisprudence has felt all along that it is better to
free the concept of law from metaphysical speculations.
3. Hobbes-Austin Concept
- Hobbes: Before the names of just and unjust can take place, there must be
some coercive power to compel men equally to the performance of their
covenants. Laws are the rules of just and unjust, nothing being reputed unjust
34
that is not contrary to some law. The "sovereign is not subject to the laws for
having the power to make and repeal laws, he may, when he pleases, free
himself from their subjection." All that is done by such power is warranted
and owned by everyone of the people, and that which every man will have
so, no man can say is unjust.
-
Austin: But 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 as much to the wise and benign rule as to stupid and galling
tyranny. His aversion to the philosophy of the natural law is based on the
view that the “ought” is really non-existent. The actualization or realization
of that which ought to be results only in its own cancellation.
4. Legal Positivism
- Austin insists, even though impatiently and rigidly, that there is a clear-cut
distinction between law and morals and between law and natural law, as
follows: “the confusion of them under a common name and the consequent
tendency to confound law and morals and law and natural law is one prolific
source of jargon, darkness and perplexity.”
- In the perspective of positivist jurisprudence, legal rules can be sound or silly,
good or bad, so long as their silliness or badness is general in scope, that
such rules affect all persons belonging to a particular class.
- If moral considerations do not consciously precede the law how, then, can it
merit obedience? John Austin made it abundantly clear that positive law does
not exist in a vacuum simply because of the separation of positive law from
moral law and natural law. Positive law has a criterion or test of its own,
namely, the philosophy of legal positivism which rests on the triune concepts
of sovereign, command and sanction.
5. The Pure Positive Law Response
Positivist jurisprudents insist that nothing is immoral or amoral that is legal. But
the critics reply that the philosophy of legal positivism has not quite succeeded
in separating law from the norms of moral law and from the precepts of natural
law.
A. Lausanne Brand
- Ernest Roguin felt very strongly that the answer to the problem of the
validity of positive law lies in pure juridical science consistent with the
culture of the people.
B. Vienna Brand
- Pure positive law, according to Hans Kelsen (1881-1953) considers only
human norms, not norms coming from other superhuman sources" and
that "it does not try to consider the law as the offspring of moral law and
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natural law, as a human child of a divine parent. He posits the idea that
the concept of law has no moral connotations whatsoever.
(1)
-
Purification of Positive Law
Hans Kelsen states that the nature of the law must be presented
empirically, that is to say it must stand on its own merit without makeup of axiological ideas, and that the law must not be politicized because
in the clash of diverse political values it is the law that is compromised
and invariably loses its power as a means of social control.
(2)
-
Normative Legal Order
With this methodology, Hans Kelsen postulates the nature of pure
positive law as a hierarchy of noncontradictory norms finding their
force, influence and validity on the grand, unchallengeable norm. This
means that the nature of law “is not simply a system of coordinated
norms of equal level but a hierarchy of norms of different levels.”
The pure positive law of Hans Kelsen is different from Hobbes' and
Austin's theory of the nature of the law as the will of the sovereign or
supreme political superior.
o For Kelsen, Hobbes' and Austin's view is not a juristic concept but a
psychological one. For Hobbes and Austin, compliance with the will
of the state depends on the feeling of awe and fear.
o But for Kelsen, psychological compulsion is not a specific element of
pure positive law. There are other norms of conduct which carry the
same kind of compulsion but they are not legal norms.
o Kelsen posits the view that obedience to legal norms depends on the
pure fact of coercion and not on any subjective influence on human
behavior.
-
(3)
-
Empirical Justice
Kelsen was after justice that is "real and possible." And, in relation to
the legal ordering of society, justice is real and possible when it ls
appropriate to the evil which society has a right to avoid in the first
place. Thus, when the legal norm or the sanction is appropriate or
suitable to the problem involved, then justice is real and possible in a
way satisfactory to all resulting in social contentment.
6. The Law and the State
- In the legal positivism of Thomas Hobbes and John Austin, the state is
perceived as the creator and enforcer of the law with the power to inflict
evil or pain in case its desires are disregarded. This does not mean that
the state can do no wrong in the expression of its will. It only means that
no right can be claimed against the state which it has not previously
accepted.
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-
In Hans Kelsen's pure positive law the personification of the state is
avoided by considering the state and the law as one for the reason that
within one nation only one and not two compelling orders can be valid at
the same time.
7. The Supreme Political Superior
- From the concept of the law advocated by the positivist jurisprudence, the
state as the collective legal association under the rule of the majority is
the supreme political superior – which gave rise to the non-suability of the
state.
- Not absolute supremacy. When the exercise of power delegated to the
government is a deliberate and persistent disregard of the will of the
supreme political superior, then such adverse governmental challenge can
be blunted, curbed, or even denied by the response of the majority of the
members of society.
o Peaceable Type – electoral response
o Uprooting Type – revolutionary response
8. Essential Attributes of the Law
A. Conscious Formulation
- As a conscious exercise of authority, the rule (Austin's term) or norm
(Kelsen's term) is separate from morals. This element sets apart a legal
obligation from a moral obligation. In the case of a rule or norm of positive
morality, there is no conscious articulation to lay it down as such.
-
The obligations provided in Article 1423 of the Civil Code of the Philippines
are good examples of moral obligations. They fall short of the principle of
pacta sunt servanda. There is no cause of action to enforce their
performance. However, when they are voluntarily performed they cannot
be undone anymore even on the claim that there is no legal consideration
for their performance.
B. Generality
- The rule or norm must not be in the particular form for that would be
determinative only of specific acts, persons, or things. The rule or norm
must be general, it must prescribe courses of conduct for all members of
society or for all in a particular class.
C. Authoritative Enforcement
- As a rule or norm backed by the authority of the state, the law involves a
duty to obey. In the event that the command is disregarded, then the
sanctions are applied or the incentives withheld.
9. Conflict with the Historical View
- The view that the law is consciously set or formulated by the supreme political
superior and enforced by sanctions or incentives or both has led the positivist
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-
-
school of jurisprudence to look askance at the historical perspective of the
law. For the positivist school, customs and customary modes of decisions are
atypical examples of positive law. For the positivists, the law is simply the
conscious creation of the supreme political superior.
From the perspective of legal positivism, the historical view that the law
emanates from the life and spirit of the people is ambiguous, especially when
the element of time is taken into consideration. A legal rule, for example,
cannot simply exist before the happening or occurrence of the facts it purports
to cover or govern. For the positivists, a legal rule is created consciously after
the occurrence of the act or event in the future.
The conflict on this particular issue is more imaginary than real. This may be
eliminated by simply tracing a legal rule back to its simple beginnings. The
development of a legal rule or concept is visible even in retrospect. The
obvious way to deal with the conflict is to trace the rule or concept back to its
simple beginning. It is even possible that in the process the rule or concept
may be found to have been borrowed or transplanted from another legal
system.
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Chapter 5: THE FUNCTIONAL PERSPECTIVE
1. Labels
2. Background of Legal Theory
3. Reaction to Idealist and Positivist Perspectives
A. Criticism of Abstract Values
B. Criticism of Legal Positivism
4. Recognition of the Interests of Society
5. Core of Functional Jurisprudence
6. Essential Factor in the Legal Ordering of Society
7. Functional Concept of Law
8. Presentation of Conflicting or Overlapping Interests
9. Relative Weight of Competing Interests
10. Social Interests and National Policies
A. Extra-Legal Factors
B. Types of Interests
C. Means of Securing Private Interests
D. Means of Securing Public Interests
11. Categories of Social Interests
A. Social Interest in the General Security
B. Social Interest in the Maintenance and Protection of Social
Institutions
(1) Domestic Institution
(2) Religious Institution
(3) Political Institution
(4) Economic Institution
C. Social Interest in the General Morals
D. Social Interest in the Conservation of Human Resources
E. Social Interest in the Conservation of Natural Resources
F. Social Interest in the General Health
G. Social Interest in Human Personality and Dignity
H. Social Interest in the Social Life
I. Social Interest in the General Progress
(1) Cultural Progress
(2) Moral Progress
(3) Economic Progress
(4) Political Progress
J. Social Interest in the General Aesthetics
12. Adjustment of Conflicting Interest
13. Value of Functional Jurisprudence
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Chapter 6: THE MODERN LEGAL REALIST PERSPECTIVE
1. Labels
2. Legal Realism as a Distinct Juristic School
3. Judicial Legal Realism
A. Intellectual Forbears
(1) Human Law and Human Experiences
(2) Separation of Law from Its Sources
B. Constructive Skeptics
(1) Rule Skeptics
(2) Fact Skeptics
(3) Opinion Skeptics
C. Role of Material Facts
D. Role of Experience and Social Advantage
E. Role of Metalegal Stimuli
(1) Fom1alist View
(2) Modern Realist View
(3) Metalegal Factors
(a) Stimulus Set by the Witnesses
(b) Stimulus Set by the Lawyers
(c) Stimulus Set by the Judges' Legal Attitudes and Prejudices
(d) Stimulus Set by the Judges' Predilections and Preconceptions
(e) Stimulus Set by Historical Events and Political Precedents
(f) Stimulus Set by Current Social Values and Economic Postulates
F. The Law as the Product of the Judicial Process
G. Exclusion of Legislative and Executive Actions
H. The Adjudicative Process as the Prime Mover
I. The Law and its Purpose
4. Social Legal Realism
A. Source of Law
B. End or Purpose of Law
C. Application of Law
5. Critical Legal Realism
A. Critical Legal Realism Scorned
B. Polemics Against Critical Legal Realism
C. Deconstruction of Dominant Liberal Paradigm
(1) Trashing the Tradition of the Dominant Liberal Paradigm
(2) Internal Reformulation of the Dominant Liberal Paradigm
(a) Rationale and Justification for the Censure
(i) The Rule of Law
(ii) Separation of Governmental Powers
(iii) Objectivism and Formalism
(iv) Judicial Activism
(v) Idealistic and Cynical Concepts of Democracy
(b) Transformation of Liberal Legal Order
40
(i) Basic Equality
(ii) Democratic Republicanism
D. Transformative Context of the Post-Liberal Order
(1) Decentralization of Government
(2) Reorganization of Market Economy
(3) Reconstruction of System of Rights
E. Nature and Function of Law
6. Psychological Legal Realism
A. Critique of Judicial Legal Realism
B. Critique of Legal Ideology
C. Nature of Law
D. Basic Jural Relations
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Chapter 7: THE POLICY SCIENCE PERSPECTIVE
1. The Yale Approach
2. Policy Science Jurisprudence
A. Reaction to Apathy Towards Social Values
B. Movement Away from Ontological Jurisprudence
C. Emphasis on Human Rights
D. Movement for the Universal Recognition of Social Values
3. The Policy Process and Problems About Values
4. The Social Value “Power"
A. Forms of Authority and Facts of Control
B. Aspects and Referents
5. The Social Value “Knowledge"
A. Purposive Forms
(1) General Aspect
(2) Particular Aspect
B. Tendential Functions
6. The Social Value “Respect"
A. Regard for Life and Limb
B. Regard for Human Personality
(1) Positive Phase
(2) Negative Phase
7. The Social Value “Income"
A. General Aspect
(1) Freedom from Want
(2) Conservation of Natural Resources
B. Particular Aspect
(1) Immediate Necessities
(2) Immediate Comforts
8. The Social Value "Safety"
A. Public Protection
B. Public Health
C. Social Security
D. Peace and Order
9. The Social Value "Liberty”
A. Relative Nature
B. Purposive Affirmation
C. Forms
D. Tension or Problem Area
E. Constituent Parts
(1) Personal Liberty
(2) Religious Liberty
(3) Civil Liberty
(4) Political Liberty
(5) Economic Liberty
42
F.
10.
A.
B.
C.
11.
12.
13.
14.
(6) National Liberty
Paradoxes of Effective Liberty
The Social Value "Equality"
Negative Aspect
(1) Jural Inequality
(2) Invalid View of Equality
Positive Aspect
Constituent Parts
(1) Equality and Balance Before the Law
(a) Simple Type
(b) Distributive Type
(2) Equality and Balance of Opportunity
(3) Equality and Balance of Rights and Freedoms
(4) Equality and Balance of Political Value
The Overarching Social Value
Concept of Law
Importance of the Policy Science Concept
End in View
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