Legal Theory – refers to a topology of discourses about the origin, purpose, and character of the law. - - – it evaluates and prescribes how a body of conduct becomes norm, rules, or obtains binding effect. – not to be confused with the “theory of a case”, which refers to the principles, claims, or grounds under which litigant proceeds. Chief Justice Artemio V. Panganiban said, “on the need to know the legal philosophy of SC justices” that one of the qualifications of SC justices is to have a “legal theory”. Their perceived loyalty should not be with the appointing presidents but with their philosophical or ideological orientation. Legal Theories: A. Teleological or Natural Theory - Looks into the principles, purpose and end (telos) of the law; goes to the question of the “why of the law”. - As per the proponents, the purpose of law serves a higher universal order or “natural order”, which can be discovered through common human reason, needs, ands aspirations and validated by human experience. - Natural law – is an example of “normative jurisprudence”, which evaluates the purposes and norms behind the law; laws as rules for man to realize his basic natura; goods and when shared, becomes common good for all. - Nature is how people normally and are expected to behave. Common Law tradition assimilated natural law precepts – use of reason (standard of reasonableness) Civil law tradition – codification of natural law principles by Justinian (art. 19 of the Civil Code; in Constitutional law, the Court may declare the law unconstitutional for not meeting the requisites of a just law – reasonableness and necessity. Finnis on Natural Law - - - - Argued that there cannot be a value-free, unprincipled discussion of the law A legal theorist requires a principle, a criterion, a value to adopt as basis for his assessment or for taking interest in the law. Propound the “central case approach” in evaluating law – the focus and center of law are those ideal cases where natural rights to basic human goods are served; central case = fullest sense as a true law; legal systems that deviate from the central case are peripheral, borderline cases, or natural. Listed basic goods natural to man: o Life o Knowledge o Play o Aesthetic experience o Sociability (friendship) o Practical reasonableness o Spirituality/Religion (transcendence) These goods are recognized by anyone with sufficient reason and experience, thus, cannot be eliminated from humanity; these basic goods generate natural rights and correlative natural duties. - Laws must at least have primary rules to provide these basic goods, ensure the survival of society, and give the people practical reasonableness. B. Positivist Theory - “posits” by the authority given to the State or by socially accepted rules. - Also knows as the “command theory” – positivism highlights obedience to the content and expression of the law (dura lex sed lex) (quod principi placuit legis habet vigorem) – whatever pleases the prince has the force of law - In filipino-malayan communities, strict justice prevailed and it is mathematically observed and applied vigorously and impartially. - Positivism is also known as “conventionalism” – law being a pure product of human will, agreement, proposition, treaties, or convention, not of some natural law or divine will; based on explicit implicit conformities, not due to some extra-legal realities (natural rights, divine providence). - Positivism = lex referenda; analytic jurisprudence – studies and recognizes law simply for “what it is”. - Until nullified or amended, one cannot dismiss the law based on what it should be according to some non-legal standards. - David Hume – social fact thesis – cannot demonstrate on what the law should be, but on the facts of what the is; argue on legal, not moral, issues. - Jeremey Bentha, father of modern utilitarianism; John Austin – popularize positivism – argued that the law is the expression of desire supported by the credible use of force or threat of punishment; law as - - a system of rules, orders, or commands enforce by power. Relationship of law and morality is only accidental and the law is its own criterion. It does not need to be moral in order to qualify as a law. Hans Kelsen – wanted to separate legal science from legal politics; no interference. Legalism (under positivism) - - - - Thomas Hobbes – laws can’t be unjust because these are promulgated by one authorized with sovereign power. Positivism = rule of law; Legalism = rule by law (extreme utilitarian Hobbesian form, where there is no need for precedent, rules of procedure, or processes that the lawmaker, himself must abide to. Legalism, absolutism = vests public power in a person or group of persons, unhampered by any other rule or tradition, institution or body. Confucianism = legalist authoritarianism – hierarchy and the bond between ruler and the subject The Hart of the Law - - Law is a system of social rules; tribal regimes started it as “regime of primary rules” – rules of conduct where sanctions for misbehaviors were made through indeterminate means of social pressure and conformity – defects: doubts in the precise scope of the rules (no authoritative reference); static traditional character (no means to abrogate defunct customary rules); absence of an official and consistent body of sanctions. They then entered into “legal regime” to remedy such defects. Three characteristics: rule of - recognition – creation of an authoritative list or text of rules or acceptable standards of conduct, dispose doubts on whether a rule exists as there is now a written text to refer; Rule of change – reference to legislation to make and repeal laws; Rule of Adjudication - procedure to be followed to resolve legal disputes. Positivism has a tendency to legalism, formalism, and uncritical obedience to authority on one hand, it leaves no discretion and room for partiality, regardless of our inconveniences and beliefs, we are bound under the rule of law. C. The Interpretivist or Constructivist Theory – spirit of the law - Law can be interpreted or constructed by the courts to contribute growth of law. - It is a rights-based, pro-active construction of the law - Dworkin - middle ground between natural law theory and positivism that adheres to the existence of rights and the basic principles of courtesy and justice. Principles are not beyond law but it resides precedents, policies, preambles, sources of laws, intents and prefaces. - Two dimensions of legal interpretation: formal dimension – look for logical consistency between principles and past decisions; substantive dimension – look for principles that that best explain or justify the law, which is construed as having a moral rightsbased dimension; integrity of the law that entitles it to claim our obedience. - - - - A law is not integral when it is not consistent (formal) and when it goes against substantial rights and principles (substantive). A law is a seamless system: in the absence of law, apply general principles of law or resort to equity (article 9 and 10 of Civil Code). Adjudication (interpretation and construction) of judges best accommodate the community’s common conviction – best fit theory. It is not fixed or objective like natural law. Particular precedents are analogous in intuitions. Chain Novel – where each judge is a novelist in a team (like a team of authors of a series) adds a new chapter to the law (interpreting and re interpreting the previous chapters) and developing the ploy (law) without making the characters unrecognizable. the judge can be creative but must be coherent and preserve the integrity. D. The Realist Theory - Sometimes labeled pragmatic jurisprudence – focuses on these human realities that are often looked by hard law, technicalities, and abstract policies - Whether the law reflects practical experience. Whether the law can be verified by experience. - Judicial legal realism – Justice Oliver Wendell Holmes, Jr. - Law is determined by the actual practices of courts, law officers, and law enforcers by real world practice. “the life of the law has not been logic, it has been experience” - Experience; expediency; life; necessity - Free trade of ideas – in order to know different ideas and perspectives and experiences of the people. Clear and present danger test by Justice Holmes. E. The Critical Theory - Main tenet that the law has been the means to enshrine and coercively impose the wishes of the dominant group or institutions (ruling power/class) - Question the law’s assumptions – that the people are free, that the market is free. - In this theory, people’s choices and market’s behavior are already conditioned by economic, social, ideological, and political forces, or the presence of hegemony. - This theory is associated with subversives as it aims deconstruction of the law and uses the hermeneutics of suspicion against legal assumptions, doctrines to advance marginalized causes - Offshoots: critical feminist theory; critical race theory; post-modernism - Communist Manifesto – “your jurisprudence is but the will of your class made into a law for all, a will whose essential character and direction are determined by the economic conditions of your class. SCHOOLS OF JURISPRUDENCE - Schools of interpretation and adjudication A. Historical School - The law is not simply made; it is in the making. It rolls a story struck in real events. - The law has a past and a progression; it develops in a gradual and evolutionary process that cannot be separated from its national or indigenous character. - This school of jurisprudence raises the question of how the law originated. The historic struggles and the national profile or identity that colored the law. B. Functional Sociological School - The law is both means of social control and progress - Looks into law as a social phenomenon as a measure of social trends and re-engineering. - Functional – every cell has a function to maintain a healthy organism (society) so that each one’s different pursuits serve the whole society. - Justifies judicial activism and judicial legislation and is related to realis theory - Main proponents: o William James - law as means to satisfy needs o Charles Louis Baron de Montesquieu – law must adapt to shifting social conditions o R. Von Jhering – law as a method of ordering society composed of competing interests; legal rules use to resolve and harmonize, rather tha exacerbate conflict o Roscoe Pound – coherent society must have a pattern of culture that determines its ideology’ o Max Weber – who made typology of law into rational (logical/scientific) and irrational - (emotional, superstitious); criticized institutionalization and bureaucratization of laws that have become unresponsive to concrete situations. Pound - law is an institution to satisfy social wants, by ordering human conduct through a politically organized society: the balance of interest test and compelling interest test – approach that recognizes that there are overlapping and competing values and demands among individuals and institutions. A definitive public policy must be adopted but particular interests may not be ignored or denied due process. C. The Economic Approach - Economic jurisprudence and consequentialism - J. Richard Posner – the purpose of the law is to increase the balance of happiness in society through wealth maximization. - Wealth maximization – is the sum of all tangible and intangible goods and services, including the value of rights; is an ethic of productivity and cooperation. - Good laws bear the imprint of economic analysis; thus, policies are evaluated based on their effects on economy. D. Formalist and Originalist School - Legal formalism or conceptualism holds that law is a strict science governed by formal axioms, legal principles, and rules of logic. TRAC. The abstract principles of law may be deciphered from the form or text of the law itself, only legal experts or those with formal legal training can best interpret the law. - - Textualism – plain meaning approach in relation to the interpretation of statutes; originalism – original approach in relation to the interpretation of the Constitution; original intent of the drafters. Adheres to judicial restraint. Formalism is the by-the-book approach best demanded from certain elements of the legal system who may abuse their discretionary powers. E. Practice Theory - Philip Bobbit – the different approaches to law, or modalities, have their own uses. One should know how and when to use them in making arguments. - The modalities are neither true or false, right nor wrong, but expressions of what is true, which must be mastered in legal practice. - Six main modalities: o Historical – intention to decipher what as really meant by the frmaers o Textual – looking for what the law simply declares or denies and how it can be interpreted in contemporary times o Structural – inferring rules from structures and mandates o Doctrinal – applying rules generated by precedent o Ethical or moral – appealing on the ethos or ideal of government (teleological) o Prudential or according to exigencies and the calculus of costs and benefits. - Each modality being preferred to advance a certain ideology. Bu these modes are no more than instruments to make an argument. NATURE OF MANKIND – law is a product of social life (society) and is a creation of human nature – Tolentino. – all men have a common nature that separates us from other species – our ability to reason; humans have selfconsciousness, endowed with the ability to reflect and analyze experience. Golden rule of all religions – to do others what you want others done unto you Carl Jung – rationality is not the only thing human share in common; we also have collective unconscious in the dream state and altered states, based on quantum entanglement and non-biological physical forces. For Psychoanalysts – human experience is largely affected by the subconscious more than the conscious life For New Agers and Quantum Mysticists – laws of reasons and logic are only operational and applicable in conscious life, but the subconscious and altered state is more open to spontaneity and possibilities, including paranormal , the surreal, and the miraculous. WRESTLING FOR IDEAL LAW – all philosophy is a footnote to Plato (Aristocles) = Platon – broad shoulders -Ariston of Argos The Republic – work on how to institute an ideal regime Allegory of the Cave – fixed/limited mindsets and biases Socratic Method – dialogues of question-and-answer dialectic to decipher whether the student really understands what the law is saying and if the student can stand debates and crossexamination. Two Phases in Plato’s Legal Philosophy - The Republic and the Laws The Republic – envisions a statist type of regime ruled by a benevolent dictator - and educated philosopher-king. The best ruler is an iron-fist strongman. Plato is credit for utopian forms of government. He stressed a World of Ideas with justice in its purest form. Ours is only a shadow of the perfect world. The role of the ruler is to get society close or the perfect form. Natural law is not the law of the common man or the popular law of the majority, but the law of the ideal man. And yet we have common idea of what a perfect man and this should be the goal of law. Idealism of Law is associated with Plato Stratifying society in to classes base on education on justice, goodness, and virtue: noble ruler (head), the warrior (the heart), the workers (the stomach). The noble should rule the ignoble. Enlightened leadership, not laws, is what is necessary. – justification of the dictatorship of the Philosopher. Laws and Preambles Given that the government of philosophers may not always be feasible, The Laws stresses instead the rule of law as a substitute to the rule of the philosopher. The need for preambles and explanatory notes in order for the people to know the reason behind the law. In the Laws, Plato conceived a more diplomatic state, whose laws appeal to people’s reason and rational discourse. Punishment is not necessary provided that through successful education and socialization, people will be predisposed to observe what the State contemplates as right via rational persuasion. Capital punishment may be imposed to protect the State from its vicious members. First, a warning against injustice and second, free the State from scoundrels. ARISTOTLE ON RATIONAL LAW – Aristotle observed that human beings have a rational nature that must be followed as a matter of law; there is a common law, a natural law, a general justice by which men can objectively judge whether certain laws serve their being human. The best political system is to cultivate human nature. Nicomachean Ethics – happiness is the final goal or end of all man’s pursuits. As much as people have different views what make them happy. But they have common function – reasoning – which separates them from other species. To live well – excel and flourish – is to function well. Golden Mean of living – reason makes us perceive what is excessive, pursue a balance life. Virtue is the practice of reason. Politics of Aristotle - no man is self-sufficient ; man is given the faculty of language because he needs to socialize effectively. Association of Man – family; neighborhood; then the polis or city-state. Democracy as the Best Form of Government - Aristotelian typology of Government (six types of constitutions) BEST FORM: MONARCHY, ARISTOCRACY, DEMOCRACY/POLITY PERVERT FORMS: TYRANNY, OLIGARCHY, RADICAL DEMOCRACY/MOBOCRACY. The aim of good state is the good life with the middle class as basis for progress. A good government establishes a political law that conforms with rational principles of right and equity. There must be a constitution (politeia) that provides general rules and guidelines. Laws (nomos) for particulars of the organization of offices and for settlement of future disputes.
