ANGELES UNIVERSITY FOUNDATION
SCHOOL OF LAW
ANGELES CITY, PHILIPPINES
A COMPILATION OF REPORTS FOR
LEGAL PHILOSOPHY
Submitted by:
AUF-SOL JD
1B
Submitted on:
December 5, 2024
Submitted to:
Atty. Charles B. Escolin
TABLE OF CONTENTS
Class List
i
Groupings
ii
Written Reports
1. Natural Law
1
2. Enlightenment and Renaissance
12
3. Positivism
32
4. Realism
41
5. Marxism
51
6. Feminism
61
7. LGBTQIA+
67
8. Eastern Philosophy
81
Class List for Legal Philosophy Class (1B)
STUDENT NAME
STUDENT ID
LASTNAME
FIRSTNAME
MI
1
24-1707-201
ANCHETA
JOHN CARLO
M
2
24-1764-689
BUAN
KATE CYRIL
C
3
24-1763-644
CANDA
CHELICA KYLE
4
24-1778-425
CASTAÑEDA
E-ANNE QAYLAMYLE
C
5
11-1254-627
DAVID
KEVIN CHRISTOFER
G
6
24-1747-424
DE GUZMAN
ICONICA REY-VWEN
L
7
24-1751-153
GAILAN
ROXAN
M
8
24-1711-698
GARCIA
EDWARD
R
9
24-1863-656
HERRERA
DOMINIQUE RICCA
T
10
24-1742-310
LUGUE
JAMEY LYNN
P
11
18-2796-773
NABATA
CHRISTIN JIREH
R
12
24-1839-697
NAGUIT
JOCELYN MUTYA
G
13
24-1718-973
SANTOS
KAYE
D
14
24-1821-198
VALES
APRIL ANGEL
C
15
24-1801-580
VIZCAYNO
DEA
A
i
List of Groups and Topics to be Discussed
Groups
Topics
Members
ANCHETA, John Carlo
Group 1
Natural Law
DE GUZMAN, Iconica Rey-vwen
GARCIA, Edward
Group 2
Enlightenment and
Renaissance
Group 3
Positivism
Group 4
Realism
Group 5
Marxism
Group 6
CASTAÑEDA, E-anne Qaylamyle
BUAN, Kate Cyril
CANDA, Chelica Kyle
GAILAN, Roxan
SANTOS, Kaye
VIZCAYNO, Dea
NAGUIT, Jocelyn Mutya
Feminism
VALES, April Angel
GARCIA, Edward
Group 7
LGBTQIA+
LUGUE, Jamey Lynn
NABATA, Christin Jireh
Group 8
DAVID, Kevin Christofer
Eastern Philosophy
HERRERA, Dominique Ricca
ii
I.
NATURAL LAW
Reported by:
ANCHETA, John Carlo
DE GUZMAN, Iconica Rey-vwen
GARCIA, Edward
I. The Nature and Implications of Natural Law
A. How is law linked to the concept of morality?
IS- Old English: !lagu”
- ordinance, rule prescribed by authority, regulation; district governed by the same
laws; right, legal privilege
OUGHT
- the understanding of actions which are either good or bad.
IS-OUGHT PROBLEM IN NATURAL LAW THEORY
By arguing that what 'is' the law is based on a higher law dictated by reason
and so is also what the law 'ought' to be, positive law is thought to acquire a sanctity
that puts it beyond question (Yonjan, n.d.).
NATURAL LAW CONSISTS OF THE PRINCIPLES OF OUGHT
Natural law notes that the law ought to do more than simply exist the
confines of morality, but rather it ought to contribute to the development of moral
standards, and it is this morality that we utilize to define what the law is.
II. Ancient Philosophy
A. Introduction to the Theory of Natural Law: An Ancient Philosophy
"An individual who breaks a law that conscience tells him is unjust, and who willingly
accepts the penalty of imprisonment in order to arouse the conscience of the community over
its injustice, is in reality expressing the highest respect for law... one who breaks an unjust
law must do so openly, lovingly, and with a willingness to accept the penalty.”
- (Martin Luther King Jr., "Letter from Birmingham Jail”)
GOOD AND EVIL IN NATURAL LAW
Natural law suggests that there are fundamental moral principles inherent in
human nature and the natural world, which can be discovered through reason and
observation. These principles are thought to be universal and unchanging,
providing
a
basis
for
distinguishing
right
from
wrong.
NATURAL LAW CONSISTS OF THREE SETS OF PRINCIPLES:
1) Most fundamental - a set of principles directing human choice and action toward
intelligible purposes.
2
2) A set of intermediate moral principles which specify the most basic principle of
morality by directing choice and action toward possibilities that may be chosen
consistently with a will toward integral human fulfillment.
3) Fully specific moral norms which require or forbid certain specific possible
choices.
CHARACTERISTICS OF NATURAL LAW (Dias and Hughes):
1) Ideals which guide for legal developments and administration
2) Basic moral quality in law which prevents a total separation of ‘is' from the
'ought"#
3) The method of discovering the perfect law
4) The content of a perfect law deducible by reason
5) The conditions are not for the existence of law- unjust law is no law at all
When a constitution reserved a particular natural right from the
government's power, natural law suggested the degree to which the constitution
protected that right, not because natural law was incorporated into the constitution,
but because natural rights were understood to be subject to natural law.
e.g.
• The Bill of Rights prohibited Congress from abridging the natural right of free
speech and press, and natural law could be understood to indicate very generally
what an abridgement of that right was.
III. Stoics: How Should Man Act?
Because human beings have the faculty of choice, they will NOT necessarily
obey the law... when they act in accordance with reason, however, they will be
"following nature."
Stoics emphasized on the duty bond concept of law. It is based on the
principle of ''do your duty'' but never expect any fruit."##
BASIC FEATURES OF STOICISM
$ goodness
$ truthfulness
$ honesty
3
$ cooperation
$ support
IV. Natural Law Theories in Ancient Period
The story of natural law begins with the philosophers of ancient Greece and
its true meaning is still a matter of controversy today. It is believed that the Greeks
were the first Ancients who discovered the concept of natural law and developed
its essentials. During that time in Greece, there was a lot of political instability. This
led scholars to think about creating new rules or principles that could prevent unfair
or tyrannical behavior by those in power. The Greek philosophers believed that if
something is universally true, it must come from nature and should apply to all
people, no matter where they are or when they live. Nature, they argued, is beyond
human control, making these natural laws fair and unchangeable by any one person
or group.
A. Socrates (470-399 B.C.)
Socrates, a prominent figure among the Stoic philosophers of ancient times,
was a great admirer of truth and moral values. He believed that just as there are
natural physical laws governing the universe, there exists a natural moral law that
guides human conduct. According to Socrates, this moral law is understood through
human insight, which gives individuals the capacity to distinguish between good
and bad and to appreciate moral values. He famously argued that "virtue is
knowledge," meaning that understanding what is virtuous naturally leads one to act
virtuously, while ignorance leads to sin.
A cornerstone of Socrates' philosophy is the belief that moral truths exist
independently of personal opinions or divine commands. In the dialogue Euthyphro,
he poses the provocative question: Is something good because the gods command
it, or do the gods command it because it is inherently good? This challenge
underscores his view that morality is not subject to divine will or human convention
but is rooted in objective standards discoverable through reason. This idea resonates
with the concept of natural law, which holds that moral principles are inherent in
nature and universally accessible through human reason, transcending cultural and
individual differences.
Socrates also made a distinction between two types of justice: natural justice
and legal justice. He asserted that the rules of natural justice are universally
applicable, regardless of time or place, while the notion of legal justice may vary
depending on the specific laws of a given society. The reasonableness of a particular
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law, in Socrates' view, is judged by human reason. And, only those laws that align
with the principles of natural law and are supported by human reasoning are
deemed proper, while those that do not are unjust.
Socrates developed a unique approach to discovering truth, known as the
Socratic Method, which involves asking a series of probing questions to challenge
assumptions and uncover underlying principles. Through this dialectical process,
Socrates aimed to clarify concepts like justice, courage, and piety by stripping away
false beliefs and refining understanding. The Socratic Method reflects his belief that
moral and philosophical truths are not immediately obvious but require deep
intellectual engagement to be fully grasped. This method mirrors the natural law
tradition, which posits that understanding the moral order of the world requires
careful reasoning and introspection. Socrates believed that only through this
rigorous examination could individuals come to know and live by the universal
moral laws that govern human behavior.
In Crito, Socrates examines the relationship between justice, law, and
individual duty. He asserts that individuals must generally obey laws to preserve
social stability. However, his acceptance of the state's unjust sentence against him
reveals a deeper conviction: true justice transcends human laws and aligns with a
higher moral order. By honoring his legal obligations despite personal injustice,
Socrates demonstrated his belief that justice is an integral part of the natural order.
His stance suggests that while the social contract binds citizens to follow laws, those
laws must ultimately reflect universal moral principles for society to function justly.
Socrates' unwavering commitment to his philosophical principles highlights
his belief in a natural moral order that transcends human law and opinion. For
Socrates, philosophical integrity meant adhering to these truths as part of a rational,
universal order governing human existence. His steadfastness underscores the
essence of natural law: living justly requires more than mere compliance with manmade laws—it demands alignment with higher principles of justice and virtue
embedded in the moral fabric of the universe. While Socrates did not deny the
authority of positive law, he emphasized the necessity of natural law for the security
and stability of the community. He was a rational thinker who believed that moral
principles represent the higher law, and that individuals should act in accordance
with their moral insight. Through this insight, Socrates believed that people are able
to cultivate moral values within themselves. His teachings encourage us to use our
reasoning to examine our nature and to make decisions that are informed by our
moral compass, ultimately promoting a restorative form of justice.
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B. Plato (427–347 B.C.)
Plato is numbered among the most important thinkers in the natural law
tradition. Plato's views on natural law, while not explicitly laid out as a systematic
theory, are embedded in his broader philosophical work, particularly in his
dialogues such as "The Republic," "Laws," and “Crito."
For Plato, justice is not merely a social or political construct but a
fundamental truth that exists beyond human creation. He ties this concept of justice
to the "Good," which he views as the ultimate reality from which all other good
things derive their meaning and value. Justice, for Plato, is a reflection of this higher,
universal order and is rooted in the nature of reality itself. This idea suggests an
early form of natural law, as Plato believes that justice is not dependent on human
laws or opinions but is a moral order present in the universe that can be understood
through reason. His philosophy implies that justice is something permanent and
accessible, not subject to change based on human convention.
Plato's view on natural law is deeply connected to his metaphysical ideas
about the Forms. According to him, the universe is an orderly system grounded in
the metaphysical Forms, particularly the Form of the Good. This Form is the highest
reality and the source of all other things; when understood, it leads a person to act
wisely. Plato connects the Good with the Beautiful in the "Symposium" and suggests
that the ideal community should be established "in accordance with nature" in the
"Republic." He emphasizes the importance of a perfect division of labor, where each
person performs the role best suited to their capacities. He believed that justice and
morality are objective realities that exist independently of human opinions and that
laws should reflect these eternal truths. He rejected a subjective understanding of
the good, arguing instead that certain things, like knowledge and beauty, are
inherently good, independent of human desires or perfection. The pursuit of these
goods falls within the realm of natural law as long as they are within human
practical possibilities. For Plato, natural law is accessible through reason and is the
foundation of a just society. Laws that do not conform to this natural order are not
true laws and should be critically examined. In this way, Plato's theory of forms
provides a foundation for the concept of natural law, as it offers a timeless and
universal standard by which human laws and conduct can be judged.
Plato was critical of positive law, which refers to laws created by human
societies based on conventions or agreements, particularly when such laws fail to
reflect the natural law. He believed that unjust laws—laws that do not align with
6
the eternal moral order—are not true laws at all. For Plato, laws must reflect higher,
unchanging standards of justice and goodness to be legitimate. If they do not, they
are merely expressions of human will and are not truly binding in a moral sense.
This critique emphasizes his belief that laws should be measured against the natural
law, which is derived from universal truths, rather than being based solely on
societal preferences or temporary conditions.
Plato viewed reason as the key to understanding the natural law. Through
intellectual reflection and philosophical contemplation, particularly of the eternal
forms like the Good, individuals can grasp the true principles that should govern
both personal conduct and societal laws. Plato emphasized that reason allows
people to discern right from wrong, and by using it, they can create laws that align
with the moral order inherent in nature. In Crito, for example, Plato argues that
people have a moral obligation to follow just laws because these laws reflect the
natural order. Disobeying such laws is seen as opposing the natural law, which has
a higher claim to justice than any human-made law.
Plato#s philosophy laid the groundwork for the natural law tradition by
emphasizing that justice and morality are rooted in an unchanging, universal order
accessible through reason. His metaphysical theory of the Forms, especially the
Form of the Good, underscores the belief that human laws and societal structures
must align with eternal truths to be legitimate. For Plato, justice is not a human
invention but a reflection of the natural moral order, and laws that deviate from this
higher standard lack true validity. By advocating for reason as the tool to discern
these universal principles, Plato championed the idea that both individuals and
societies should strive to align their actions and laws with the inherent moral order
of the universe. His insights continue to inspire discussions on the relationship
between law, morality, and the pursuit of justice.
C. Aristotle (384–322 B.C.)
Aristotle is considered by many to be the founder of natural law. He argued
that what is !just by nature” is not always the same as what is !just by law.” Aristotle
believed that there is a natural justice that is valid everywhere with the same force.
This natural justice is positive and does not depend on the decisions or laws of any
one group of people.
Aristotle believed that moral and legal norms should be in harmony with
human nature. He argued that the world has a natural order, and as part of this
7
order, humans have an innate nature that shapes their behavior and ethical choices.
For Aristotle, the ultimate goal of human life is to achieve eudaimonia, a state of
flourishing or "the good life," which is attained by living virtuously in accordance
with human nature. He maintained that virtues are qualities that help individuals
fulfill their potential and live in harmony with others. This view of human nature as
central to moral and legal norms reflects Aristotle's understanding of natural law,
where ethical behavior and laws should help individuals live a fulfilled and virtuous
life.
Aristotle's views on natural law are integral to his broader ethical and
political philosophy, though he did not explicitly use the term "natural law." He
posited that the entire world is a product of nature and divided human life into two
parts: first, that man is a creature created by God, and second, that man is endowed
with active reason, enabling him to form his will. Aristotle asserted that the
principles of natural justice can be discovered through this reason.
Aristotle#s concept of natural justice underscores his belief in a higher,
rational order that transcends human-made laws and customs. Aristotle makes a
distinction between "natural justice" and "legal justice." Natural justice, he argued,
is universal and constant, based on natural law that applies to all people and
societies regardless of time or place. It reflects what is inherently fair and right,
rooted in the rational nature of human beings. In contrast, legal justice refers to laws
created by specific societies, which can vary based on historical and cultural
contexts. He argued that what is "just by nature" is not always the same as what is
"just by law," suggesting that there is a natural justice valid everywhere with the
same force, independent of people's opinions or laws. This natural justice, according
to Aristotle, is positive and does not depend on the decisions or laws of any one
group of people. While legal justice is changeable and context-dependent, natural
justice is unchanging and reflects universal principles of fairness and morality.
In one of Aristotle#s works, Nicomanchean Ethics, he illustrated the close link
between legal and political philosophy. Aristotle introduced the Doctrine of the
Mean, which states that virtue is found in the balance between two extremes. For
example, courage is the mean between recklessness and cowardice. This balance
reflects Aristotle#s belief that moral virtue is grounded in human nature and can be
discovered through reasoned reflection on human experiences. Virtue, for Aristotle,
involves using reason to find the right course of action in any situation, avoiding
excesses or deficiencies in behavior. He argued that law supports a virtuous
8
existence, advances the lives of individuals and promotes the %perfect community#.
He proposed people should employ practical wisdom or active reason in order to
behave in a way that is consistent with a virtuous existence. Aristotle defined justice
as %a state of mind that encourages man to perform just actions#, %just "#meaning
%lawful#, %fair"#and %virtuous#. His Doctrine of the Mean supports the idea that natural
law is accessible through rational analysis, as it is through careful consideration that
individuals can align their actions with their true nature and the moral order.
Aristotle divided %political "#justice into %natural "#and %conventional "#justice.
According to Aristotle, the content of %natural "#justice (or %universal"#law) is set by
nature, which renders it immutable and valid in all communities. In contrast,
%conventional "#justice comprises rules devised by individual communities to serve
their needs. Aristotle argued %conventional"#justice is subject to change (depending
on the form of government), and is therefore subordinate to %natural "#justice. In
Nicomanchean Ethics, Aristotle identified a further two types of justice: distributive
and corrective. For Aristotle, distributive justice involves allocating common
property proportionally to individuals on the basis of merit. Corrective justice
serves to redress any unfairness which may result from private transactions that
violate an individual#s property rights or other rights. Whilst distributive justice
promotes proportionate equality within society, corrective justice deals with the
administration of the law through a judge or mediator.
Aristotle placed great importance on reason as the key to understanding and
applying natural law. He believed that human beings, through the use of their
rational faculties, are capable of recognizing the natural order and making moral
decisions based on it. In his work Politics, Aristotle argued that the best political
systems are those that align with natural law, as these systems are designed to
promote human flourishing and are guided by rational principles. By exercising
practical reason and considering real-world experiences, individuals and societies
can develop laws and political structures that reflect the natural order and promote
the common good.
Aristotle was critical of positive laws—those laws created by human
societies—if they did not align with the principles of natural justice. He argued that
laws should be designed with the aim of promoting human flourishing and virtue,
rather than merely serving the interests of particular groups or individuals. Laws
that fail to reflect the moral truths derived from human nature are unjust and do not
contribute to the common good. For Aristotle, positive law is only valid if it aligns
9
with natural law, meaning it must promote ethical behavior, encourage virtue, and
help individuals and society achieve eudaimonia. Laws that do not fulfill this purpose
are flawed, as they do not serve the higher goal of fostering a just and virtuous
society.
V. Greco-Roman Philosophy
A. Cicero
“Natural Law is right reason, consonant with nature, common to everyman, constant,
eternal.”
• Cicero is a Roman Statecicero Roman statesman, lawyer, scholar, philosopher,
writer and Academic skeptic. In his work he argued that both justice and law
originate from what nature has to give to humanity, from what the human mind
embraces, from the function of humanity, and what serves to unite humanity.
• The principle of mutual benefit.
B. Gaius
!Every people (populus) that is governed by statutes and customs (leges et mores) observes
partly its own peculiar law and partly the common law of all mankind”
Civil Law
- Law which people established for itself is peculiar for it is called jus civile (civil
law) as being a special law of that civitas (State)
Law of Nations
- Law that natural reason establishes among all mankind is followed by all peoples
alike, and is called ius gentium (law of nations, or law of the world) as being the law
observed by all mankind. Thus the Roman people observes partly its own peculiar
law and partly the common law of all mankind.
- !innate in every human being"
VI. Middle Ages Philosophy: Thomas Aquinas (1225 – 7.03.1274)
Aquinas Argues that God created the world according to natural laws predictable, goal driven systems whereby life if sustained and everything functions
smoothly.
The Basic Goods
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1. Life
2. Reproduction
3. Educate One’s Offspring
4. Seek God
5. Live in Society
6. Avoid Offence
7. Shun Ignorance
NATURAL LAW THEORY
PROHIBITION
THE BASIC GOOD
POSITIVE INJUCTION
DO NOT KILL
LIFE
PROMOTE LIFE
DO NOT PREVENT
REPRODUCTION
REPRODUCTION
PROCREATE
11
II.
ENGLIGHTENMENT
AND RENAISSANCE
Reported by:
CASTAÑEDA, E-anne Qaylamyle
GARCIA, Wolf Frank
I. Contribution and Influence of the Enlightenment Period to Legal Philosophy
What is the Enlightenment?
The Enlightenment was an intellectual movement that introduced new ways
of understanding the world through rationalism and empiricism.
To break that down:
• Rationalism argues that reason, rather than emotion or external authorities,
is the most reliable source of true knowledge. In other words, to achieve
enlightenment, you need to focus on rational thought rather than emotional
responses.
• Empiricism suggests that true knowledge comes from sensory experience
and rigorous experimentation. This approach was not entirely new but was
developed further during the Scientific Revolution.
The Scientific Revolution
Empirical and rationalist thinking didn't emerge overnight; they were
developed earlier during the Scientific Revolution in Europe during the 16th and
17th centuries. During this period, scientists moved away from religious and biblical
authorities and used reason and experimentation to understand the natural world.
This led to significant scientific breakthroughs and a better understanding of the
universe and human anatomy. The Enlightenment built upon this foundation,
extending scientific and rationalist thinking to the study of human society.
To clearly see the shift towards the enlightenment period, we remember from
the previous discussion the emphasis on the belief that supernatural forces deeply
shape the lives of human individuals.
For instance, earthquake tremors in Istanbul in 1648 were seen as signs of a
sultan’s death a few months later. A century after that, a huge earthquake struck
Lisbon, Portugal. Tens of thousands of people died, many from a tsunami that
followed the quake.
Now, some theologians argued this was punishment from God for the
world’s sins, but others pointed out that the earthquake had actually destroyed a lot
of churches while sparing a lot of brothels.
13
Voltaire wrote a famous poem in response to the earthquake that included
the lines “As the dying voices call out, will you dare respond to this appalling
spectacle of smoking ashes with, “This is the necessary effect of the eternal laws
Freely chosen by God?”
Religious and Philosophical Shifts
One of the key aspects of the Enlightenment was its challenge to traditional religious
authority. In Europe, where Christianity had long held significant power,
Enlightenment thinkers questioned the role of religion in public life.
• From this, the idea of Deism became popular among Enlightenment
thinkers. Deists believed in a creator who set the universe in motion but did
not intervene in its workings. This view compared God to a clockmaker who
created the universe and then stepped back.
• Atheism was another response, rejecting religious belief and any notion of
divine being altogether.
Montesquieu (1689–1755)
Montesquieu is a key figure in the Enlightenment. He made significant
contributions to legal and political philosophy, particularly through his work "The
Spirit of the Laws".
Theory of Separation of Powers
Montesquieu’s most influential idea is his theory of the separation of powers,
which he articulated in "The Spirit of the Laws." He argued for the separation of
powers within government as a means to prevent tyranny and protect liberty. In
other words, he contended that political power should be divided among different
branches of government—executive, legislative, and judicial—to prevent any one
branch from becoming too powerful and to protect individual freedoms. This
concept profoundly influenced the development of modern democratic systems,
including the U.S. Constitution.
Political Liberty and the Role of Law
Montesquieu explored how laws and political institutions impact liberty. He
argued that political liberty could only be safeguarded when power was not
concentrated in a single entity. His work highlighted the importance of laws in
maintaining a balance between authority and freedom, emphasizing that legal
frameworks should reflect the values and needs of the society they govern.
14
Comparative Analysis of Political Systems
His comparative method involved analyzing different political systems and
legal traditions to understand how they functioned and influenced society. He
examined various forms of government, including monarchies, republics, and
despotisms, and considered how their structures and laws affected their stability
and the freedom of their citizens. This comparative approach provided insights into
how legal and political systems could be structured to achieve desired outcomes.
Critique of Absolute Monarchy
Montesquieu was a critic of absolute monarchy and centralized power. He
used historical and contemporary examples to argue that absolute power was
inherently corrupting and destructive to liberty. His advocacy for a balanced
government with checks and balances was a direct response to the abuses of power
he observed in absolute monarchies.
Impact on Modern Constitutional Design
Montesquieu’s ideas had a lasting impact on the development of
constitutional design and legal theory. His concepts of separation of powers and
checks and balances became foundational in many modern democracies,
influencing how constitutions are drafted and how governments are structured to
ensure accountability and protect individual rights.
In summary, Montesquieu’s contributions to legal philosophy were pivotal
in shaping modern democratic thought. His advocacy for the separation of powers,
his analysis of different political systems, and his consideration of cultural and
geographic factors in law provided a framework that continues to influence political
and legal systems around the world.
Voltaire (1694–1778)
Voltaire, a leading figure of the Enlightenment, made substantial
contributions to legal and political philosophy, although his work was often more
focused on critique and advocacy rather than systematic legal theory.
Critique of Arbitrary Power and Injustice
Voltaire was a fierce critic of arbitrary power and legal injustices. He used his
writings to challenge the abuses of authority, particularly in relation to legal and
judicial systems. His famous works, such as the "Candide" and various essays, often
exposed the corruption, cruelty, and incompetence of established institutions,
15
including the legal system. His criticism was aimed at promoting justice and rational
reform.
Advocacy for Civil Liberties
Voltaire was also a staunch advocate for civil liberties, including freedom of
speech, freedom of religion, and the protection of individual rights. He famously
defended individuals who were persecuted or wrongfully accused, such as in the
case of Jean Calas, a Protestant who was wrongly executed for allegedly murdering
his son. Voltaire’s advocacy for Calas and others highlighted his commitment to
justice and the need for legal systems to protect individual rights and prevent
wrongful persecution.
Opposition to Religious Intolerance
Voltaire was a vocal critic of religious intolerance and the role of religious
institutions in legal and political matters. He argued for the separation of church
and state and for a legal system that would not be influenced by religious dogma.
His works, including "Philosophical Dictionary," often argued that laws should be
based on reason rather than religious beliefs, advocating for a more secular
approach to governance and justice.
Support for Enlightened Despotism
Although Voltaire criticized the existing legal and political systems, he also
supported the idea of enlightened despotism—where an absolute ruler would use
their power to implement rational and progressive reforms. While this idea might
seem contradictory to his advocacy for individual rights and democratic principles,
it reflected his belief that meaningful change could sometimes be achieved through
the benevolent actions of a powerful ruler.
Voltaire’s contributions to legal philosophy were primarily through his
critique of injustice and abuse of power, his advocacy for civil liberties, and his calls
for legal reform. His emphasis on reason and justice, along with his criticism of
religious and political authorities, helped shape modern perspectives on legal and
political systems.
Denis Diderot (1713-1784)
Denis Diderot, though primarily known as a philosopher and a key figure of
the Enlightenment, made significant contributions to legal philosophy through his
role in compiling the Encyclopédie.
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The Encyclopédie:
Diderot was the chief editor of the Encyclopédie, a monumental work that
aimed to compile and disseminate human knowledge. This work included extensive
articles on law and governance, reflecting Enlightenment principles and shaping
legal and political thought.
Rational Critique of Existing Systems:
Through the Encyclopédie, Diderot and his collaborators criticized existing
legal and political systems. They challenged the traditional, often arbitrary nature
of laws and governance and advocated for reforms based on reason and justice.
His emphasis on human rights and his critique of societal injustices
contributed to the broader discourse on human rights that influenced legal
philosophy. His ideas supported the Enlightenment notion that human rights
should be fundamental to any legal system.
Diderot’s contributions helped shape the Enlightenment’s impact on legal
philosophy by promoting ideas of rationality, equality, and justice. His work
encouraged a shift away from traditional, authoritarian legal systems towards ones
based on reason and human rights.
Cesare Beccaria (1738–1794)
Cesare Beccaria, an Italian philosopher and legal scholar, made
groundbreaking contributions to legal philosophy, particularly through his seminal
work "On Crimes and Punishments" published in 1764. Here, Beccaria addressed the
principles of criminal law and the justice system with a focus on rationality,
fairness, and humanitarianism. His ideas were instrumental in shaping modern
criminal justice systems and have had a lasting impact on legal reform.
Principles of Penal Reform
Beccaria’s work is foundational in the field of penal reform. He advocated for a
rational and humane approach to criminal justice, emphasizing that laws and
punishments should be designed to prevent crime and rehabilitate offenders rather
than simply to punish.
• Proportionality: Beccaria argued that punishments should be proportionate
to the crimes committed. Excessive or cruel punishments were not only
unjust but also ineffective in deterring crime. He believed that the severity of
the punishment should be calibrated to the seriousness of the offense, thereby
ensuring fairness and justice.
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•
•
Deterrence: Beccaria emphasized that the primary purpose of punishment
should be to deter crime. He argued that punishments should be swift,
certain, and appropriate to prevent future offenses. This concept has
influenced modern criminal justice systems, which focus on deterrence as a
key objective of criminal sanctions.
Abolition of Torture and Capital Punishment: Beccaria was a strong
opponent of torture and capital punishment. He believed that torture was
both inhumane and ineffective, and that capital punishment was not a
deterrent to crime and violated the fundamental rights of individuals. His
advocacy for the abolition of these practices contributed to their gradual
decline in many legal systems.
Legal Certainty and Clarity
Beccaria argued for the importance of legal certainty and clarity in laws. He
believed that laws should be clear, precise, and publicized so that individuals could
understand what behaviors were prohibited and what the consequences would be.
This principle supports the idea that laws should be accessible and comprehensible
to ensure fairness and accountability.
Critique of Arbitrary Justice
Beccaria was critical of arbitrary and discretionary justice, which he saw as a
source of corruption and inequality in the legal system. He advocated for a system
of laws and procedures that would limit judicial discretion and ensure that justice
was administered in a consistent and predictable manner. His ideas promoted the
development of more formal and structured legal processes.
Beccaria’s ideas had a profound impact on the development of criminal law
and procedure. His emphasis on rationality, proportionality, and the rule of law
influenced legal reforms in many countries. His work laid the groundwork for the
modern criminal justice system, including the adoption of legal principles that
promote fairness, transparency, and the protection of individual rights.
In summary, Cesare Beccaria’s contributions to legal philosophy are
significant for their emphasis on rationality, proportionality, and human rights
within the criminal justice system. His work on penal reform, the abolition of torture
and capital punishment, and the principles of legal certainty and clarity has had a
lasting influence on criminal law and legal systems worldwide.
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John Locke (1632-1704)
John Locke’s contributions to legal philosophy were groundbreaking and
have had a profound and lasting impact on modern political and legal theory.
His work, Two Treatises of Government tried to answer the question who should
rule the country and on what legitimate bases.
• First Treatise - demolished the spiritual claim that God had created kings
• Second Treatise - people possessed a natural right that no ruler can ever take
away
o He wrote that the people voluntarily consented to cede some of their
personal freedom but only as so far to preserve their rights. They could
not be expected to give up these rights entirely as that would just
defeat the point of joining the society
o According to Locke, if a ruler started to act like a tyrant and unfairly
deprive their subjects of their freedom of property, the subjects would
then entirely within their rights withdraw their consent, overthrow
their ruler, and set up a new government
Locke is also popular for his concept that our minds from birth is a Tabula Rasa or
a blank slate.
- This is contrary to prevailing views that our minds are fitted at birth with
all sorts of ideas about religion, ethics, morality, and government.
- Lock contended that everything that we know, think, or conjecture is
derived from experience.
Locke made a significant contribution on the Theory of Natural Rights
• Locke’s theory of natural rights is central to his legal philosophy. He posited
that individuals possess inherent rights to life, liberty, and property. These
rights are not granted by any government but are intrinsic and must be
respected by all, including the state.
• Locke argued that the primary function of government is to protect these
natural rights. Governments derive their legitimacy from their ability to
secure these rights for their citizens. This idea emphasizes that the state’s
authority is conditional upon its respect for individual rights.
Social Contract Theory
• In Locke’s view, the state of nature is a pre-political condition where
individuals are free and equal, but lack a common authority to resolve
conflicts and protect rights. This leads to insecurity and potential conflicts
over property and rights.
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•
•
Formation of Government: To overcome the limitations of the state of nature,
individuals enter into a social contract. They agree to form a government that
will create and enforce laws to protect their natural rights. The social contract
is an agreement among individuals to establish a political body that operates
with their consent.
Consent of the Governed: Locke emphasized that legitimate government is
based on the consent of the governed. If a government fails to protect natural
rights or acts against the interests of its people, the social contract is broken,
and citizens have the right to revolt and establish a new government.
Theory of Property
• Labor Theory of Property: Locke’s theory of property is based on the idea
that individuals gain ownership of property through their labor. According
to Locke, when individuals mix their labor with natural resources, they
acquire property rights over those resources.
• Limits of Property Accumulation: Locke also proposed limits on property
accumulation. He argued that one should only appropriate as much property
as one can use and that enough resources should remain in common for
others. This principle reflects a concern for equitable access to resources.
Influence on Constitutionalism
• Separation of Powers: While Locke did not explicitly articulate the modern
doctrine of the separation of powers, his ideas influenced its development.
His work implied the necessity of separating legislative and executive
functions to prevent tyranny and protect individual rights.
• Impact on Constitutions: Locke’s ideas on government and rights heavily
influenced the drafting of foundational documents, including the American
Declaration of Independence and the U.S. Constitution. His concept of the
right to revolt and the protection of natural rights are reflected in these
documents.
Legal and Political Philosophy
• Rule of Law: Locke’s emphasis on the rule of law is a critical aspect of his
legal philosophy. He argued that laws should be designed to protect natural
rights and should be applied equally to all individuals. This principle is
foundational to modern legal systems.
• Limited Government: Locke advocated for a limited government that is
accountable to the people. This idea contrasts with absolute monarchy and
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supports the development of democratic and constitutional frameworks that
limit governmental power and enhance individual freedoms.
Influence on Liberal Thought
• Liberal Democracy: Locke’s ideas are central to the development of liberal
democracy. His emphasis on individual rights, representative government,
and the importance of consent has shaped the principles of modern
democratic states.
• Human Rights: Locke’s theories laid the groundwork for later discussions on
human rights. His assertion that individuals have inherent rights to life,
liberty, and property influenced subsequent human rights movements and
international legal frameworks.
John Locke’s contributions to legal philosophy include his formulation of natural
rights, his development of social contract theory, and his labor theory of property.
His ideas on the role of government, the importance of consent, and the rule of law
have had a lasting impact on democratic and legal systems worldwide. Locke’s
work laid the intellectual foundation for modern constitutionalism, liberal
democracy, and human rights, making him a central figure in the evolution of legal
and political thought.
Jean-Jacques Rousseau (1712–1778)
Jean-Jacques Rousseau, a central figure in the Enlightenment, made
significant contributions to legal and political philosophy through his works, most
notably "The Social Contract" (Du Contrat Social). His ideas have had a profound and
lasting impact on legal and political theory.
Theory of the Social Contract
Rousseau’s most famous contribution is his theory of the social contract, outlined
in "The Social Contract." He proposed that legitimate political authority comes from
an implicit contract between individuals in a society.
• General Will: Rousseau introduced the concept of the "general will," which
represents the collective interest of the people. He argued that sovereignty
lies with the people and that the general will should guide the laws and
governance. This idea was revolutionary in emphasizing collective decisionmaking and democratic participation.
• Popular Sovereignty: Rousseau believed that true sovereignty resides with
the people, and that all political power derives from the consent of the
governed. He argued that individuals should not be subject to laws they have
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•
not participated in creating, which underscored the importance of democratic
legitimacy and active citizen engagement in governance.
Freedom and Equality: Rousseau’s social contract theory emphasized that
individuals achieve true freedom not by withdrawing from society but by
participating in the formation of laws that they follow. His notion of freedom
is deeply connected with the idea of equality and collective decision-making,
suggesting that individuals are free when they are part of a political
community that governs itself through the general will.
Critique of Private Property
In "Discourse on the Origin and Basis of Inequality Among Men" (Discours
sur l'origine et les fondements de l'inégalité parmi les hommes), Rousseau critiqued the
institution of private property as a source of social inequality and conflict. He
argued that the creation of private property led to the emergence of social
hierarchies and the erosion of natural freedom and equality. This critique laid the
groundwork for discussions on property rights and social justice in political
philosophy.
Concept of the Noble Savage
Rousseau’s concept of the "noble savage" challenged the prevailing
assumptions about human nature and civilization. He argued that humans were
inherently good in their natural state but became corrupted by the development of
civilization and private property. This idea influenced discussions on the nature of
society, the impact of civilization on human morality, and the need for societal
reform.
Influence on Democratic Theory
Rousseau’s ideas on democracy and the social contract influenced the
development of modern democratic theory. His emphasis on popular sovereignty,
civic participation, and the general will became foundational concepts in democratic
governance and republican theory. His work also inspired various revolutionary
movements and thinkers who sought to create more participatory and democratic
political systems.
Impact on Revolutionary Thought
Rousseau’s critiques of inequality and his advocacy for popular sovereignty
had a significant impact on revolutionary thought, particularly during the French
Revolution. His ideas about the general will and the nature of legitimate political
authority provided a theoretical basis for revolutionary movements that sought to
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overthrow existing regimes and establish new forms of government based on
democratic principles.
In summary, Jean-Jacques Rousseau’s contributions to legal and political
philosophy revolve around his theory of the social contract, his critique of private
property, his ideas on human nature and education, and his influence on democratic
and revolutionary thought. His work continues to be a cornerstone of discussions
about democracy, equality, and the role of the state in modern political philosophy.
Immanuel Kant (1724–1804)
In his 1784 essay "What is Enlightenment?", Kant proposed that the defining
feature of his era was its growing secularism. While intellectually he welcomed the
decline in Christian belief, he was practically alarmed by it. Kant was a pessimist
about human nature, believing that we are inherently prone to corruption. This
awareness led him to dedicate his life’s work to replacing religious authority with
the authority of reason, or human intelligence.
In his book "Religion within the Bounds of Reason Alone," Kant argued that
while historical religions might have been incorrect in their specific beliefs, they had
correctly identified the need to promote ethical behavior—a need that still persisted.
This context led Kant to develop what he is perhaps most famous for: the
"Categorical Imperative."
The Categorical Imperative, first introduced in the notoriously named
"Groundwork of the Metaphysics of Morals," is a principle meant to evaluate the
morality of actions. Kant’s idea was to test the morality of an action by imagining it
as a universal practice and considering its implications if you were the recipient of
such actions.
For instance, while it might seem harmless to take a few sheets of paper from
work, if everyone did this, it would lead to significant issues. Similarly, while an
affair might seem acceptable if kept secret, the Categorical Imperative would reject
this if it implies that it would be acceptable for your partner to have affairs without
informing you. The principle aims to shift our perspective to recognize the broader
implications of our behavior.
Kant also proposed a different formulation of the Categorical Imperative:
treating individuals as ends in themselves, not merely as means to an end.
This idea was intended as a replacement for the Christian command to "love
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one's neighbor." According to Kant, treating a person as an end means
recognizing their own pursuit of happiness and fulfillment, and ensuring
justice and fair treatment. The Categorical Imperative, for Kant, represents
the voice of our rational selves, embodying the principles our intelligence
dictates when we think clearly.
Theory of Justice and Rights
• Right and Justice: Kant believed that justice involves respecting and
protecting individual rights. His concept of right (Recht) is grounded in the
idea that individuals have inherent rights that must be respected by all,
including the state. This concept underpins modern ideas of legal rights and
the rule of law.
• Moral Autonomy and Legal Authority: Kant’s notion of moral autonomy
implies that individuals are self-governing and must have a say in the laws
that govern them. This aligns with democratic principles where laws are
created and enforced with the consent of the governed.
Principle of Publicity
Kant argued that laws should be publicly known and accessible. This
principle of publicity ensures that individuals are aware of the laws and can
understand how they are applied. It promotes transparency and accountability in
legal systems, preventing arbitrary or secretive enforcement of laws.
Retributive Justice
Kant’s views on punishment are grounded in retributive justice. He argued that
punishment should be proportionate to the crime and should serve as a means of
moral retribution rather than deterrence or rehabilitation. According to Kant:
• Proportionality: Punishments must be proportionate to the seriousness of the
crime committed. This reflects his belief in respecting the dignity of
individuals and ensuring that justice is fairly administered.
• Moral Justification: Punishment, for Kant, is justified morally when it is a
necessary response to a violation of the law. It should reaffirm the moral
order and respect for the law.
Autonomy and the Social Contract
Kant’s theory of the social contract is based on the idea that individuals, as
moral agents, agree to form a civil society and abide by laws that they collectively
legislate. This agreement is grounded in the respect for individual autonomy and
the desire to live in a community where mutual respect and justice prevail.
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Influence on Modern Legal Theory
Kant’s ideas have had a profound impact on modern legal theory:
• Human Rights: Kant’s emphasis on respecting individuals as ends in
themselves has been foundational for the development of human rights
theories. His work influenced the formulation of international human rights
laws and the protection of individual rights.
Legal Formalism: Kant’s insistence on consistency, universality, and respect for
individual rights has influenced legal formalism, which emphasizes the application
of law according to established principles and precedents.
So, those were just some of the philosophers during the enlightenment period who
significantly contributed to legal philosophy. From their contributions, we derive
the key enlightenment ideas.
Key Enlightenment Ideas
1. Individualism: Enlightenment thinkers emphasized the individual as the
fundamental unit of society, with progress and personal expansion being key.
2. Natural Rights: The belief that individuals are born with inherent rights that
cannot be infringed upon by governments. We remember, John Locke who
argued that individuals have natural rights to life, liberty, and property,
which are endowed by God and cannot be taken away by any ruler.
3. Social Contract: The idea that societies, endowed with natural rights, should
create governments by their own will. The main purpose of these
governments is to protect natural rights. If a government becomes tyrannical
and violates these rights, people have the right to overthrow it and establish
a new one.
Effects of the Enlightenment
We also derive the profound effects of Enlightenment to the world.
1. Revolutions: Enlightenment ideas laid the groundwork for major
revolutions, including the American, French, Haitian, and Latin American
revolutions. These revolutions challenged traditional authorities and
proposed new ideas about political power.
2. Expansion of Suffrage: Enlightenment principles like liberty and equality
led to the expansion of voting rights. And by equality, I mean among males.
Initially, only landowning white males were allowed to vote, but over time,
suffrage expanded to include all white males, and after that, eventually black
males were likewise allowed to vote.
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3. Abolition of Slavery: Enlightenment thinkers criticized slavery for its
disregard of natural rights. This criticism contributed to the abolition of
slavery in places like Great Britain, which, while economically motivated,
was also driven by ethical considerations.
4. End of Serfdom: The transition from agricultural to industrial economies
made serfdom increasingly obsolete. Peasant revolts and Enlightenment
ideas prompted the end of serfdom in countries like England, France, and
Russia.
5. Women’s Rights: Despite revolutionary movements emphasizing equality,
women often did not share equally in the gains. Although not yet fully
established during the Enlightenment period, a growing feminist movement
emerged, demanding equality in all areas of life, including voting rights.
In summary, the Enlightenment period was pivotal in advancing legal
philosophy by promoting reason and individual rights as the basis for law and
governance. This era laid the intellectual foundation for modern democratic and
legal systems, shaping the principles of justice, equality, and human dignity that
remain central to contemporary legal and political frameworks.
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II. Contribution and Influence of the Renaissance Period to Legal Philosophy
Introduction
The Renaissance, meaning "rebirth," in was a period of cultural, artistic,
intellectual, and social revival in Europe that spanned from the 14th to the 17th
century. It marked the transition from the Middle Ages to modernity and was
characterized by a renewed interest in classical antiquity, particularly the works of
Ancient Greece and Rome. The Renaissance is often regarded as one of the most
transformative eras in European history, influencing art, science, philosophy,
literature, politics, and religion.
Historical Context
The Renaissance began in Italy, particularly in cities like Florence, Venice,
and Rome, before spreading to the rest of Europe.
Several factors contributed to its emergence:
• Economic Prosperity - The growth of trade and commerce in Italian citystates enabled the rise of wealthy merchant families, such as the Medici in
Florence, who became patrons of the arts and learning.
• Rediscovery of Classical Texts - After the fall of Constantinople in 1453,
many Greek scholars fled to Italy, bringing with them classical manuscripts
that had been lost to the West. This ignited a renewed interest in GrecoRoman knowledge.
• Humanism - A philosophical movement emphasizing human potential,
reason, and individualism, humanism rejected the medieval focus on
theology and mysticism. It promoted the study of humanities, including
literature, history, and ethics, based on classical models.
Key Features of the Renaissance
The Renaissance was marked by several defining characteristics that
transformed European society:
a. Art and Architecture
• Renaissance art emphasized realism, perspective, and the human
form. Artists such as Leonardo da Vinci, Michelangelo, Raphael, and
Donatello revolutionized painting and sculpture by incorporating
techniques like linear perspective, chiaroscuro (the use of light and
dark contrasts in art to create a sense of volume and three-
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dimensionality), and anatomical precision. Architecture saw the
revival of classical forms, with Filippo Brunelleschi and Leon Battista
Alberti pioneering new approaches to design and urban planning.
b. Science and Innovation
• The Renaissance was a period of scientific inquiry and technological
advancement. Nicolaus Copernicus developed the heliocentric theory
of the solar system, while Galileo Galilei and Johannes Kepler
furthered astronomy and physics. Leonardo da Vinci, a polymath,
made significant contributions to engineering, anatomy, and
mathematics. The invention of the printing press by Johannes
Gutenberg in the mid-15th century enabled the rapid dissemination of
knowledge.
c. Philosophy and Humanism
• Humanism, central to Renaissance thought, sought to revive classical
wisdom while focusing on human experience and individual dignity.
Thinkers like Pico della Mirandola (author of "Oration on the Dignity
of Man") and Erasmus of Rotterdam advocated for educational reform
and the study of classical texts. This intellectual movement influenced
politics, literature, and religion, moving away from the strict confines
of medieval scholasticism.
d. Literature
• Renaissance literature was marked by the use of vernacular languages
and a focus on human experience.
• Dante Alighieri ("The Divine Comedy"), Geoffrey Chaucer ("The
Canterbury Tales"), and Petrarch were early figures in this literary
revival. Later, William Shakespeare, Niccolò Machiavelli (author of
"The Prince"), and Miguel de Cervantes (author of "Don Quixote")
became central literary figures whose works have had a lasting impact.
e. Religion and Reformation
• While the Renaissance was primarily secular, it also influenced
religious thought, laying the groundwork for the Protestant
Reformation. Martin Luther, influenced by Renaissance ideas,
challenged the authority of the Catholic Church with his 95 Theses in
1517. The Reformation led to significant religious and political changes
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across Europe, including the establishment of Protestant churches and
reforms within Catholicism.
Major Features of the Renaissance
1. Leonardo da Vinci - A quintessential "Renaissance Man," Leonardo was an
artist, scientist, and inventor. His works, such as The Last Supper and Mona
Lisa, are among the most famous in the world. His notebooks reveal his
scientific studies in anatomy, engineering, and mechanics.
2. Michaelangelo Buonarroti - Renowned for his sculptures like David and
Pietà, as well as his paintings on the ceiling of the Sistine Chapel,
Michelangelo's work embodies the Renaissance ideals of human beauty and
strength.
3. Niccolò Machiavelli - A political philosopher and diplomat, Machiavelli's
work The Prince became a foundational text in political theory, advocating
pragmatic and sometimes ruthless approaches to statecraft.
Machiavelli argued that the most effective rulers were those who
could balance conflicting interests and respond quickly to new challenges.
Overall, Machiavellian statecraft emphasizes the importance of power,
adaptability, and ruthlessness in maintaining political control.
4. Raphael - Known for his harmonious and serene depictions, Raphael's School
of Athens is a masterpiece of Renaissance art, depicting an idealized vision
of intellectual exchange between ancient philosophers.
5. Galileo Galilei - A pivotal figure in the Scientific Revolution, Galileo's work
in astronomy (including his defense of the heliocentric model) and physics
laid the groundwork for modern science. His conflict with the Catholic
Church symbolized the growing tension between science and religious
authority during the Renaissance.
The Spread of Renaissance
Although the Renaissance began in Italy, it quickly spread to other parts of
Europe:
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Northern Renaissance
In regions like Flanders, Germany, and England, the Renaissance took
on a more religious tone. Artists like Albrecht Dürer and Jan van Eyck
introduced oil painting techniques and created detailed works with symbolic
depth. Writers such as Thomas More and Erasmus promoted Christian
humanism.
French Renaissance
The French Renaissance was heavily influenced by Italian culture,
particularly after King Francis I invited artists like Leonardo da Vinci to his
court. Architecture flourished with the construction of châteaux in the Loire
Valley.
English Renaisance
The French Renaissance was heavily influenced by Italian culture,
particularly after King Francis I invited artists like Leonardo da Vinci to his
court. Architecture flourished with the construction of châteaux in the Loire
Valley.
Impact of the Renaissance
The Renaissance was marked by several defining characteristics that
transformed European society:
Cultural Legacy
The artistic and intellectual achievements of the Renaissance have
shaped Western culture, inspiring countless generations of artists, writers,
and thinkers.
Scientific Progress
The period’s emphasis on observation, experimentation, and inquiry
laid the groundwork for the Scientific Revolution, which further advanced
understanding in fields such as physics, astronomy, and biology.
Political Changes
Renaissance ideas contributed to the development of modern political
theory and the rise of the modern state. The period also saw the decline of
feudalism and the rise of centralized monarchies in Europe.
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Education and Humanism
The humanist focus on education, individualism, and critical thinking
influenced modern educational systems. The Renaissance also promoted the
study of classical languages, literature, and history, which remain core
elements of liberal arts education today.
Conclusion
The Renaissance was a time of extraordinary cultural, intellectual, and artistic
achievements. Its emphasis on rediscovering classical knowledge, coupled with
innovations in art, science, and thought, shaped the course of Western history. By
challenging the boundaries of the medieval worldview, the Renaissance laid the
foundation for modernity and continues to inspire contemporary culture,
philosophy, and learning.
The legacy of the Renaissance is a testament to the power of human creativity,
curiosity, and ambition, setting the stage for the transformation of Europe and the
world at large.
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III.
POSITIVISM
Reported by:
BUAN, Kate Cyril
CANDA, Chelica Kyle
POSITIVISM - APPLIED TO LAW
The only legitimate sources of law are those written rules, regulations, and
principles that have been expressly enacted, adopted, or recognized by a
governmental entity or political institution, including administrative, executive,
legislative, and judicial bodies.
Legal positivism is a theory of law that claims that laws are a matter of
convention. To simplify, there is no ideal or natural law on which conventional laws
are based. Laws are simply "posited" by lawmakers, and those are the laws people
should obey. Laws are created and enforced by the legislative body of the
government or other authority, as opposed to laws that are based on natural rights
or moral principles.
Legal positivism is characterized by two theses:
1. The existence and content of law depends entirely on social facts (e.g., facts
about human behavior and intentions), and
2. There is no necessary connection between law and morality—more precisely,
the existence and content of a law do not depend on its merits or demerits
(e.g., whether or not it lives up to the ideals of justice, democracy, or
morality).
The basic question to be asked are:
1. “What is law?”
2. Is it written?
3. Where does it come from?
“The Command Theory”
“Dura lex, sed lex” - The law is harsh, but that is the law.
“Whatever pleases the prince has the force of law”
In applying it to the law, what the law “posits” by the authority given to the
State or by socially accepted rules is known as “the command theory,” positivism
highlights obedience of the law with the principle “dura lex, sed lex” and the
connotation that whatever pleases the prince has the force of law.
English political thinkers John Austin and Thomas Hobbes articulated the
command theory of law, which stood for the proposition that the only legal
authorities that courts should recognize are the commands of the sovereign, because
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only the sovereign is entrusted with the power to enforce its commands with
military and police force.
Legalism
Thomas Hobbes - “laws cannot be unjust because these are promulgated by
one authorized with sovereign power.” According to him, for the principle of just
and unjust to take place, there must be some coercive power to compel men to the
performance of their covenants.
Hobbes thought that laws cannot be unjust because these are promulgated
by one authorized entity with the sovereign power. While positivism is “the rule of
law,” — legalism — is “rule by the law,” where there is no need for precedents, rules
of procedure, or processes that the lawmaker himself must abide by. What he
stressed is that “to the care of the sovereign belongs the making of good laws.”
Furthermore, he concludes that “all that is done by such power is warranted and
owned by every one of the people, and that which every man will have so, no man
can say is unjust.”
John Austin held that the relationship between law and morality is only
accidental and that the law is its own criterion. Law ushers its own majesty and
command without need for moral reference. This developed a legal system wherein,
unqualified allegiance is paid as a mark of an independent state system. As a
separate science, it will be enough to cite the law.
The existence of law is one thing; its merit or demerit is another. Whether it
be or be not is one enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry. A law, which actually exists, is a law, though we
happen to dislike it, or though it varies from the text, by which we regulate our
approbation and disapprobation.
Austin defined law by saying that it is the “command of the sovereign”. He
expounds on this further by identifying the elements of the definition and
distinguishing law from other concepts that are similar: in his theory, “Commands”
involve an expressed wish that something be done, and “an evil” to be imposed if
that wish is not complied with. Rules are general commands, as contrasted with
specific or individual commands. The “sovereign” is defined as a person who
receives habitual obedience from the bulk of the population, but who does not
habitually obey any other person or institution. Austin thought that all independent
political societies, by their nature, have a sovereign.
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The existence of a legal system in a society can be inferred from the different
structures of governance present, and not on the extent to which it satisfies ideals of
justice, democracy, or rule of law. The laws which are in force in a certain system
depend on what kind of social standards its officials recognize as authoritative. They
may be legislative enactments, judicial decisions, or social customs. Based on Austin,
the fact that a policy is just, wise, efficient, or prudent is never a sufficient reason for
thinking it is actually the law; and the fact that it is unjust, unwise, inefficient or
imprudent is never a sufficient reason for doubting it.
The Pedigree Thesis - asserts that legal enforceability and legitimacy is due
to certain social facts. Austin says that a command backed by sanction is all that law
is limited to. Any external analysis of law is speculative and lies outside the domain
of ‘Real Law’.
The primary function of the state is to use force to impose sanctions. But
modern democracies have governments that serve the people and are elected by
them to ensure their safety and prosperity, not use force on them. The force used by
the state is not the power of the state but the willingness of the people to obey the
same.
Austin’s ideas are not applicable to International law because it has no
Sovereign. Modern democracies are found in a constitution, in which rests the
source of all the political powers of the state. Therefore, the true Sovereign in a
democracy are the people, whose rights the constitution upholds.
Jeremy Bentham called the natural law “nonsense upon stilts” and laid down
the groundwork of Positivist legal philosophy with the Sovereign at its helm. Jeremy
Bentham called the natural law as “nonsense upon stilts,” or that it is nonsense for
claiming rights not prescribed in the laws of the state, and distinguished the
“expositors” of the law (those who explain the law for what it really is) from the
“censors” (those who criticize the law in relation to non-legal notions). Law was not
meant to be discussed, criticized or debated but rather explained and obeyed.
Hans Kelsen - Pure Positive Law is characterized as a “pure” theory of law
because it aims to focus on law alone. It only describes the law and it also attempts
to eliminate or set aside anything that is not law.
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The pure positive law theory also distinguishes the “is-statement” from the
“ought-statement.” The “is-statement” that something is, or something is not done
is expressive of a simple reason for action. As for the “ought-statement” that
something should be, or something should be done, or something should not be
done is expressive of a higher kind of reason for action.
The law according to Kelsen is a system of norms. The pure law theory takes
into consideration only the norms created by the acts of human beings, not norms
which come from other superhuman authorities.
For illustration purposes, here is an example:
Why should the people pay taxes on time? As stated above, there are two
ways or reasons for complying with the legal norm of paying taxes, specifically the
“is-statement” and the “ought-statement.”
The response of the person that he pays his taxes on time because the legal
norm commands him to do it is an is-statement. Another way of answering or
reasoning is that the people should pay their taxes on time because the legal norm
should be obeyed. In this example, there is a higher justification for action, which is
to discharge an obligation without any thought of getting away from it which is the
“ought-statement.”
The Hart of the Law - Separation Thesis
Herbert Lionel Adolphous Hart, separation thesis is the essence of legal
positivism. The main point or essence of this is that the law and morality are
conceptually distinct.
In order to know what your legal rights are, you need to look at what laws
your society has. In order to know what your moral rights are, you need to figure
out what is the true morality. It is possible for a person to have legal rights that the
true morality says he should not have, and the society might also deny a person’s
legal rights that the true morality dictates one must have.
In inclusive positivism or also known as incorporationism or soft positivism,
it is possible for a society’s rule of recognition to incorporate moral constraints on
the content of law. Contrary to this is the exclusive positivism or also called as the
hard positivism, in which it denies that a legal system can incorporate moral
constraints on legal validity.
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The rule of recognition, say, via a Constitution, is its own measure. It is like a
standard meter, which provides the ways for supplying legal validity. The law is
valid as long as it satisfies the criterion of being characterized as law. The law is
“open-textured,” or there is room for discretion only as the law says so.
However, the positivist approach has been criticized for its tendency to
legalism, formalism, and uncritical obedience to authority, which served dictatorial
regimes and an example would be the Nazi regime, laws were passed to exterminate
the Jews, and the Nazis would raise the defense that they were only following what
was then valid official law.
Ronald Dworkin - Discretion Thesis
“The set of these valid legal rules is exhaustive of ‘the law’, so that if
someone’s case is not clearly covered by such a rule then that case cannot be decided
by ‘applying the law.’ It must be decided by some official, like a judge, ‘exercising
his discretion,’ which means reaching beyond the law for some other sort of
standard to guide him in manufacturing a fresh legal rule or supplementing an old
one (Dworkin 1977, p. 17).”
This thesis asserts that in the practise of law, there will inevitably arise a
situation in which an issue would lie outside the established principles of law and
there would be no law to govern the said issue. In this case, the discretion thesis
asserts that it is up to the judges, the jurists and the legislators to form a new rule to
decide on said problem, which would involve leaving the domain of law and
exercising their discretion of commanding law. The discretion thesis is not a central
tenet of Legal Positivism but is still considered in consonance with it.
Justice Oliver Wendell Holmes, Jr., wrote that the “prophecies of what the
courts will do in fact, and nothing more pretentious, are what I mean by the law”.
Holmes made a description of what positive law is in the realm of the courts. In
making this statement, Holmes was suggesting that the meaning of any written law
is determined by the individual judges interpreting them, and until a judge has
weighed in on a legal issue, the law is ultimately more than an exercise in trying to
guess the way a judge will rule in a case.
The Law and the State = The Supreme Political Superior
37
The state is perceived as the creator and enforcer of the law who is therefore
vested with the power to “inflict an evil or pain in case its desire is disregarded.
Therefore, the law is the expression of the will of the state laying down the rules of
action upheld by force. But this does not mean that the state can do no wrong in the
expression and enforcement of its will, however, even if a wrong is done by the state,
no right can be claimed against it.
From the concept of law of the positivists, the supreme political superior is
the state, as a collective legal association under the rule of the majority. The legal
doctrine of non-suability was derived from this concept. But it must be remembered
that the exercise of the will of the supreme political superior by the government is
not absolute. When there is a deliberate and unrelenting disregard of the will of the
supreme political superior in the exercise of governmental powers, the majority
members of the society may blunt, curb, or even deny by response the adverse
governmental challenges.
Positivism = “Conventionalism”
Law is purely a product of human will, not of some natural law or divine
will. Laws are made out of explicit or implicit agreements, treaties, or conventions
in society.
Positivism is also referred to as “conventionalism.” Positivists state that the
law is purely a product of human will, not of some natural law or divine will. Laws
are made out of explicit or implicit agreements, treaties, or conventions in society,
not due to some extra-legal reality like natural rights, divine providence, etc.
although the agreement may mention these concepts. There is no underlying
substance, principle, or content that the law must conform to. It need only be
procedurally correct to be valid.
Jurists who classified principles of justice as law did so because the principles
were widely embraced, or because local customs authorized these jurists to make
new law. When the legality of a rule or principle is based on precedent, prior judicial
recognition, or law-making authority, judges appreciate the importance of making
these explanatory connections explicit and are adept at doing so.
Analytic jurisprudence
“Lex lata” - law is simply “what it is”
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Positivism is “analytic jurisprudence” that studies and recognizes law simply
for “what it is” (lex lata). No ifs or buts or referents to judge the law other than the
law itself. For positivists, all the other approaches to law (natural law, sociological,
pragmatic) are wrong for confusing “what ought” with “what is,” which positivists
describe as the “overlap thesis” or “is- ought fallacy.” Until nullified or amended,
one cannot dismiss the law based on what it should be according to some non-legal
standards — for being immoral, inefficient, irrational, imprudent, or impractical.
Thus, when lawyers make or unmake legal arguments, they can only cite the law,
and citing the Bible or non-legal authorities will not gain merit.
MAIN CRITICISM OF POSITIVISM
The most influential criticisms of legal positivism all flow from the suspicion
that it fails to give morality its due. The law has important functions in creating
harmony and peace in our lives, advancing the common good, in securing human
rights, or to govern with integrity and yet it has no relevance with our morals.
However, the explanation to this is that Judges who invoked the ‘laws of
justice’ were aware that moral principles aren’t really law. Their pretense was aimed
at promoting justice while keeping up the façade of strict obedience to law. Since
such talk among jurists is insincere, it is entirely compatible with the true grounds
of legality being social. But judges, while deciding cases, cannot apply rules without
seeking guidance from certain legal principles which are conventionally considered
extralegal by positivists. For Dorkin, the actual cases were too ambiguous and full
of detail which cannot be adequately captured in rules. To decide on a matter
judiciously, one needs guidance from eternal principles which help the judges
decide.
Dorkin’s viewpoint was met with much opposition from the positivists, who
thought that law could not consist of anything apart from objective, definite rules
and principles were primarily subjective and metaphysical in nature, which was
contrary to their assertion that law is an absolute science.
REFLECTING ON THE LEGACY AND RELEVANCE OF POSITIVISM IN
TODAY'S WORLD
In the legal positivists point of view, the body of legal rules should exist
without conscious regard for the norms of morality, although the latter’s influence
is not completely denied. There are legal rules that do not measure up to moral law
but do not cease to be legal rules.
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Positivism laid out the basic notions which are still prevalent in modern legal
systems. Even in modern democracies, we see the flow of law emanating from
political superiors to the people, we also see the importance of statutes, rules and
regulations along with the discretion of jurists.
The Separability thesis, however, is more or less proved to be wrong. Our
struggles throughout history have proven that law needs to have an ethical direction
for it to remain just, fair and not devolve into tyranny.
Ethical concerns are now central to any promulgation, rule or legislation.
Laws everywhere are becoming less arbitrary, more inclined towards ensuring
freedom and liberty.
The focus of legal institutions is shifting from being a system of commands
and sanctions to a system which aims to ensure prosperity in the people it governs.
It can be concluded that Legal Positivism provides a unique perspective towards
understanding our legal systems, and while it is not without its flaws, it still holds
a lot of academic importance.
Positivism in Essence
● Law is a command by a human sovereign.
● Law is separate from morality and has no identifiable ethical concerns.
● Law should be studied positively i.e. “What is law?” and not normatively i.e.
“What should the law be?”
● Study of Legal concepts is separate from historical or sociological analysis.
● Legal system is self-sufficient, to make decisions, it does not need to have
social concerns.
● Precedence of facts over moral judgements.
CONCLUSION
Life itself has rules, and we call them law. We follow the law because it is the
law. This is what the positivist school maintains.
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IV.
POSITIVISM
Reported by:
GAILAN, Roxan
SANTOS, Kaye
Abstract
The two grand theories of judging – legal realism and legal formalism - have
their differences set around the importance of legal rules. For formalists, judging is
a rulebound activity. In its more extreme versions, a judge is seen as an operator of
a giant syllogism machine. Legal realists, in contrast, argue that legal rules, at least
formal legal rules, do not determine outcomes of cases. Legal realism has been
misunderstood almost everywhere outside its birthplace – the United States.
Continental legal theory, for one, views legal realism as practical, down-to-earth,
hard-nosed school of thought which is opposed to the more “scientific” theories.
Legal Realism, a movement that arose in 1920s and 1930s in the US,
challenged the prevailing view that judges are rational decision-makers, who apply
only legal rules found in law books to the facts of the case. Realists were a sundry
group: there were more differences between some realists then between some
realists and formalists. Overall, however, realists asserted that often judges make up
their mind about the outcome even before they turn to legal rules; often they will
use policy principles and make new law; some realists asserted that judge’s
personality has more impact than legal rules. After making a decision, judges will
justify it with formal legal rules.
I. Legal Realism: Birth and Development
A. Introduction to Realism
Legal realism was arguably the most important and controversial theory of
judging in the history. And in general as well, there were few intellectual
developments in law that have been as influential, controversial, and
misunderstood. Its influence went far beyond as a theory of adjudication. As one
legal theorist notes, even contemporary legal positivism owes much of its renewal
to legal realism.
Realism is a diverse school of thought and any attempts to homogenize it will
distort more than simplify. When it comes to judicial decision-making, realists had
two general theses. First, judges have a preferred outcome of a case even before they
turn to legal rules; that preferred outcome is usually based on some non-legal
grounds – conceptions of justice, attributes of litigating parties (government, poor
plaintiff, racial group, etc),ideology, public policy preferences, judge’s personality,
etc. Second, judges usually will be able to find a justification in legal rules for their
42
preferred outcome. This is possible because the legal system is complex and often
contradictory. Of course, occasionally a judge will come across a preferred outcome
that just “won’t write”, but these are rare. Normally, however, judges will find some
cases, statutes, maxims, canons, authorities, principles, etc, that will justify their
preferred outcome.
II. Holmes, Cardozo, and other Predecessors of the Movement
A. Oliver Wendell Holmes, Jr.
The birth of legal realism is largely credited to the jurist who probably would
not consider himself a realist – Oliver Wendell Holmes, Jr. Holmes famously wrote
that “the life of law has not been logic; it has been experience that changes in law
(at least judge-made law) were not due to logic or pre-existing law; instead, policy
preferences or personal experiences of judges mattered more. Holmes also
famously stated in his dissenting opinion that “general propositions do not decide
concrete cases”. Many commentators consider this statement as his realist position
that general rules of law will never decide actual cases. It seems, however, that this
may have been an exaggeration as Holmes himself believed that specific legal
propositions can determine how judges decide their cases. It is probably fair to say
that Holmes’ views were not iconoclastic by the later standards. It might be also true
that many of his ideas were voiced by a previous generation of jurists. However, his
prominence as a scholar and the Justice of the US Supreme Court helped to spread
his ideas in all legal circles.
B. Benjamin Cardozo
Like Holmes, Benjamin Cardozo was not only an outspoken legal
commentator but also a prominent judge. Thus, his position probably gave his views
additional credibility. Compared to later realists, Cardozo was far from a
revolutionary freethinker. His main treatise published in 1921 - The Nature of the
Judicial Process – shows that most of his views rather moderate. He observed that
in most cases, there are clear legal principles, which dictate the outcome. Yet, often
a clear legal answer does not exist; in such cases, Cardozo thought, the judge should
promote social ends; and here, Cardozo admitted, a judge may be tempted to
substitute his view for that of the community. Grant Gilmore observed that
“Cardozo’s hesitant confession that judges were, on rare occasions, more than
simple automata, that they made law instead of merely declaring it, was widely
regarded as a legal version of hard core pornography. Gilm ore probably
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exaggerated Cardozo’s impact, but we should not make the opposite mistake of
underrating Cardozo’s impact.
C. Other Predecessors
In addition to Holmes and Cardozo, there were a number of smaller
contributions to the emerging legal realism. Theodore Schroeder, for example, was
one of the first to analyze the psychology of judicial decision-making. He noted that
“judicial opinion necessarily is the justification of the personal impulses of the
judge” and that “hat the character of these impulses is determined by the judge’s
life-long series of previous experiences, with their resultant integration of emotional
tones”. While his observations would not impress contemporary psychologists, at
that time this was a novel outlook on judicial decision-making.
Max Radin, already in 1925, argued that judges do not process facts and legal rules
logically or rationally. Essentially, he argued that judges respond to the clusters of
fact situations (the so-called situation type of judging) - judges make instant
decisions once a “generalized situation of this sort is in the judge’s mind and is
immediately called up” He further remarked that judge’s mind works like that in
great many situations and could hardly work otherwise. In his subsequent writings,
Radin noted that how judges classify events depends on “their training, their
prejudices, their conscious or unconscious interests, their philosophy, their aesthetic
learnings, or even by the chance circumstances surrounding the particular learning.
”Of course contemporary scholars of judgment and decision-making would depart
from Radin’s model; and yet, his observations came very close to what
contemporary research psychologists know about intuitive judgment and heuristic
processing.
III. Birth of the Movement: Hutcheson and Frank
A. Hutcheson
In 1929, Joseph Hutcheson, a federal judge, published a seminal article in
which he explained his own judging model. As other realists, he loathed formalistic
model where a judge determines the relevant facts and then consults lawbooks
(statutes or cases) to determine the outcome. Hutcheson argued that judges first
make up their mind about the outcome and only then turn to law books to look for
justification of their decision. In essence, judges use “hunches” or intuitive decisionmaking first, and only then look for justifications in the statutes or caselaw.
Although Hutcheson’s contributions to the field were scanty, the view of judicial44
decision making as an intuitive process of hunches became a signature of judicial
decision-making in the realistic tradition.
B. Jerome Frank
One year after Hutcheson’s article appeared, Jerome Frank published his
“Law and the Modern Mind”. If there ever was a radical version of legal realism,
then Jerome Frank was it. Like other realists, Frank doubted judges’ ability to make
decisions based on general categories or general rules. Like many other eminent
realists, Frank himself was an eminent federal judge. Frank thought that troubled
psychological development is responsible for legal formalism.
According to Frank, the judge’s preferred outcome precedes the inquiry into
legal rules: “Judicial judgments, like other judgments, doubtless, in most cases are
worked out backward from conclusion tentatively reached”. Frank was also one of
few realists who was preoccupied not only with “legal rules realism”, but also with
“fact finding realism” – a judge will usually accept only that evidence which will
support his or her preferred outcome: “A judge, eager to give a decision which will
square with his sense of what is fair, but unwilling to break with the traditional
rules, will often view the evidence in such a way that the facts’ reported by him,
combined with those traditional rules, will justify the result which he announces”
Frank was also the only major realist who thought that judge’s personality plays a
more important role than legal rules. Legal rules, for Frank, were in general not
important. Furthermore, he considered that rational element in law is an illusion.
Frank argued that judicial outcomes depend on many factors, most of which can be
extra-legal: judge’s personality, political preferences, mood, racial views, etc. On
the other hand, Frank pointed out that a judge, after arriving at the conclusion, can
consult with the general rules and principles to see if it is acceptable. So in a sense,
Frank did not say that legal rules do not matter; instead, his point was that they were
not leading to the decision, but they could provide guidance to a conscientious judge
as a check-up. Frank and later realists have been ridiculed by saying that how a
judge decides a case depends on what “the judge had for breakfast.”(Frank himself,
apparently, never said such thing Of course, this ridicule sets up realists for a straw
man fallacy. Frank and other realists never maintained that it all comes down to
what “the judge had for breakfast”. Yet, he wouldn’t deny that it might influence
the decision. Although later criticized for his attachment to psychoanalytic school
(and he also argued that judging ability would be greatly enhanced if judges
underwent extensive psychological treatment), his views were well-known and to
some extent influential.
45
IV. Birth of the Movement: Pound & Llewellyn
A. Roscoe Pound
If Hutcheson and Frank presented more radical views of judging, Pound and
Llewellyn could be considered centrists. Roscoe Pound, like Holmes, scorned the
strict reliance on logic, legal rules, and scientific law which is characterized by
certainty and reason. He thought that such notions of law are responsible for fixed
conceptions where premises become stiff. Like Holmes, he argued that courts
should develop law by relying on public policy preferences. Already in his notable
1908 article, he assaulted the notion of “mechanical jurisprudence” (and it was he
who coined that term in the same article) In his address to the American Bar
Association in 1906, Pound disdained mechanical application of legal rules: “The
most important and most constant cause of dissatisfaction with all law at all times it
be found in the necessarily mechanical operation of legal rules.” So for Pound, in
addition to legal rules, policy reasons and techniques for deriving doctrines play
equally important role.
B. Karl Llewellyn
Karl Llewellyn was arguably the most influential realist. He also presented
the version of legal realism that perhaps could lay claim for an established theory of
law and judging. Like other realists, Llewellyn scoffed at the idea that judging is a
rulebound activity, where a judge proceeds downward from legal rules to the
outcome of the case: “[With a decision already made, the judge has sifted through
these ‘facts’ again, and picked a few which he puts forward as essential - and whose
legal bearing he then proceeds to expound”. For Llewellyn, formal rules – “the paper
rules” or “pretty playthings” - have little effect on what judges actually do.
Llewellyn, however, argued that judges do use some rules in their decision-making,
only these rules are largely non-formal rules. These are the rules that judges would
not find in a law book. Such general rules could be policy preferences like
“maximize efficiency”, “let win the poorer party in a civil litigation” or “uphold any
outcome which fosters free market competition”. In addition to policy preferences,
other factors determine the outcome: legal knowledge, legal indoctrination,
approval of peers, the collaborative nature, institutional constraints. Unlike Frank,
Llewellyn did not deny that there is a rational element in law. Llewellyn also
disagreed with Frank that judge’s personality plays a crucial role in judging.
Llewellyn’s one of the most famous contributions to the legal realism was to
46
demonstrate the ambivalence of legal rules. Llewellyn used a fencing metaphor:
“thrust” and “parry” of dueling cannons - for every canon of interpretation that said
one thing, there was a “dueling” canon that said just the opposite. For example, the
canon of in pari materia says that statutes dealing with the same subject should be
interpreted so as to be consistent with each other, but another canon provides that
later statutes supersede earlier ones. One canon provides that extrinsic aids to
interpretation, such as legislative history, are irrelevant when the language of the
statute is clear on its face; another canon, however, says that even the plain language
of a statute should not be applied literally if such an application would produce a
result divergent from what the legislation intended. In his later years, Llewellyn
seems to have adopted even more moderate position. In “The Common Law
Tradition”, he noted that judges do follow accepted doctrinal techniques, provide a
right legal answer, and achieve just results. They also want to earn approval of their
legal audience. Moreover, he observed that institutional factors, like collegiality,
also minimize individual inconsistencies.
V. Novel Contributions of Legal Realists
Some scholars argue that legal realism brought nothing new to the
understanding of judicial decision-making. For example, some scholars noted that
preceding legal generations made similar observations about judging even before
realists came to the scene. But almost all major scientific discoveries or ideological
movements were preceded by “observations” similar to the new theories. Likewise,
it is true that preceding generations of lawyers made similar observations as the
legal realists; however, observations are not enough. It even might be that the
genius of the realists was not in the discovery of their doctrinal and philosophical
outlooks, but in their crystal articulation. Whatever it is, it is easy now to underrate
their contribution. One can only wonder then, if the movement brought nothing
new, why the awareness of the legal community and general public was so much
different than before.
VI. Legal Realism in the Philippines
Although legal realism movement started in the US and was eventually became
popular in Europe, its principles were also seen in some of the jurisprudence or
landmark cases decidbe by our Supreme Court in the Philippines.
47
A. Judicial Activism in Social Justice Case
In some cases, Philippine courts, particularly the Supreme Court, have
adopted a proactive role in protecting rights guaranteed under the Constitution,
such as in social justice or human rights cases. This reflects legal realism, as the
courts sometimes interpret the Constitution in ways that go beyond the literal
wording of the law, considering the social realities and impacts of their rulings.
For example, in cases related to agrarian reform or labor disputes, courts
have sometimes made decisions that promote social justice over strict adherence
to formal rules. For instance, the case of Association of Small Landowners v.
Secretary of Agrarian Reform** (G.R. No. 78742, July 14, 1989) expanded the
scope of land reform policies, showing that the court was willing to adapt the
law to address real-world inequities.
B. Flexible Interpretation of Rights
The Constitution guarantees several fundamental rights, but how these
rights are interpreted in specific cases often reflects a legal realist approach.
Judges have the discretion to balance conflicting rights and interpret the law in
a way that aligns with social or political needs.
In Imbong v. Ochoa (G.R. No. 204819, April 8, 2014), which challenged the
constitutionality of the Reproductive Health (RH) Law, the Supreme Court made
a nuanced decision. It upheld the law’s constitutionality but struck down certain
provisions that it deemed inconsistent with the freedom of religion and
conscience. This illustrates how the Court balanced constitutional rights based
on a pragmatic consideration of the social and moral context of the country.
C. Constitutional Interpretation in Emergency Powers
During times of national crisis or emergency, the courts often interpret the
Constitution in a flexible manner, considering the prevailing political and social
realities rather than applying a rigid reading of constitutional provisions.
During President Ferdinand Marcos’ martial law regime, the judiciary often
upheld the expansive powers of the president under the guise of national
security. This shows that the courts were influenced by the political context,
reflecting legal realism in their decision-making. Lateron, however, the post48
martial law era saw a shift, with courts becoming more protective of civil
liberties, as seen in cases like Olaguer v. Military Commission No. 34 (G.R. No.
L-54558, May 22, 1987).
D. Intervention in Environmental Protection
The application of environmental laws in the Philippines also highlights the
influence of legal realism. Courts sometimes interpret constitutional provisions
on environmental protection in a way that accounts for the country’s unique
environmental challenges.
In Oposa v. Factoran (G.R. No. 101083, July 30, 1993), the Supreme Court
recognized the right to a balanced and healthful ecology under the Constitution
as a basis for standing in court, even for future generations. The Court's decision
reflected a forward-looking, socially conscious approach, illustrating how legal
realism shapes constitutional interpretation.
E. Influence of Public Opinion
Legal realism suggests that judicial decisions can be influenced by public
opinion or the societal context. In high-profile cases, such as those involving
political figures or controversial issues, Philippine courts have occasionally been
seen as taking into account the public's perception when interpreting the
Constitution.
In the case of Republic of the Philippines v. Sereno (G.R. No. 237428, May
11, 2018), where the Supreme Court removed Chief Justice Maria Lourdes Sereno
through a quo warranto proceeding, there were widespread debates about the
influence of politics and public opinion on the decision, as it deviated from the
usual process of impeachment.
These examples demonstrate that Philippine courts, influenced by legal
realism, often consider more than just legal texts when interpreting the
Constitution, taking into account the broader social, political, and moral context
in their rulings.
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Conclusions
In conclusion, the theory of legal realism, regardless how diverse the legal
realists are, had a twofold claim. First, legal rules, at least formal legal rules, do not
determine outcomes of cases. Most realists agreed that legal rules play some role in
judicial decision making, but all realists argued that other rules and factors play a
much more important role. And a judge, influenced by other rules and other factors,
will decide before consulting law books. In essence, judges act like attorneys who
first determine their client’s position and then look for legal materials to support
that position. Second, after deciding on other grounds than solely legal rules, judges
will be able to justify the decision with formal rules because one can usually find
competing legal grounds for almost any position. For example, if a judge
experienced the same facts in a certain case, legal realism claims that this influences
the judge to decide based on this experience.
In the Philippines, the application of legal realism principles can be seen in
cases previously enumerated which emphasize that the law can be uncertain, and
decision may be based on its overall societal context.
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V.
MARXISM
Reported by:
VIZCAYNO, Dea
OVERVIEW
This module talks about Marxist idea and perception on law. It discusses
Marx’s ideas of law which he mentioned in the book he co-authored with Fredrich
Engels, The Communist Manifesto and in the essay “On the Jewish Question”. He
talks about how the concept of law, state and human rights are influenced by the
Bourgeoisie and how it is used against the Proletariat.
There are three basic assumptions in the Marxist theories of law, first, that
law is the product of economic forces; secondly, law is considered to be the tool of
the ruling class to maintain its powers over the ruling classes; finally, that law will
wither away in the future communist society. However, according to Engels, state
in the future will disappear. The third assumption has been repudiated and a novel
concept is evolved that of ‘socialist legality’. However, in different communist
countries, either the first or the second of the words in ‘socialist legality’ has been
stressed.
KARL MARX
Karl Heinrich Marx (1818-1883), born to Heinrich and Henrietta Marx, was a famous
German economist, revolutionary and a social philosopher of the nineteenth century
who propounded the theory of Marxism. Born in a wealthy middle class family,
Marx studied at the University of Bonn and University of Berlin. He received his
Doctorate degree from the University of Jena for his thesis ‘On the difference
between the Natural Philosophy of Democritus and Epicurus’. After his studies, he
started writing for a newspaper in Cologne where he began working on his theory
of dialectical materialism. Later, when he moved to France, he met Friedrich Engels,
a young German businessman. The two of them were the founding fathers of the
theory of Classical Marxism. He then went to London and produced works of his
own such as ‘The Class Struggle in France’ (1850), ‘The 18th Brumaire of Louis
Bonaparte’ (1852), and ‘Contributions to a critique of Political Economy’ (1859). He
also published some short articles and essays like ‘The Introduction to the Critique
of Hegel’s Philosophy of Law’ and ‘The Essays on The Jewish Question’. One of his
most famous works was the book was called ‘Das Kapital’ which was published in
three volumes in 1867, 1885 and 1894.
INTRODUCTION
“Law, morality, religion, are to [the proletariat] so many bourgeois prejudices, behind
which lurk in ambush just as many bourgeois interests.”
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Karl Marx provides a perspective about what the law means, which in order
to appreciate, is important to place it within Marx’s overall socio-economic and
political context.2 In the Marxist view of law, the bourgeoisie and the proletariat are
the two classes fighting for power. Societies that allow and give freedom to the
bourgeoisie to formulate laws and make moral decisions are unjust societies.
In the Communist Manifesto, Marx explains that the law is simply a reflection
of the desires of the Bourgeoisie class. He says to the Bourgeoisie that “[Y]our
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
existence of your class”3. Marx criticizes the entire tradition of government under
the rule of law as no more than a mere expression of the “bourgeois” aspirations.
What is Marxism?
The concept of Marxism first emerged in the mid-nineteenth century as a
result of the hostile conditions created by the capitalistic society. Marxism is what is
known as conflict theory because it states the conflict between people in the society.
It is a combination of critiques, political goals and theories scattered around the
theories of criticism of Karl Marx. It consists of myriad ideas: that capitalism
embodies a system of class exploitation, socialism is a social order in which private
property and exploitation and which can be achieved through revolution.
Basic Assumptions of Marxist Legal Theory
In the Marxist theory of law, there are three basic assumptions. The first one
is that law is the product of economic forces. Marx said that the way you work will
shape your law and other institutions. He believed in the ‘two level model’ in which
‘economy’ was the ‘base’ and law as well as other institutions were in the ‘superstructure’. Marx was of the opinion that the most important sphere of relations to
consider was the relations of economic production. However, Engels admitted that
the various components of the superstructure, including the institution of the law
and other norms, exercise a reciprocal effect upon the economic basis and may,
within certain limits, modify it4. Thus, if we understand the way in which societies
produced and reproduced the basic goods and services which formed their wealth,
then we could understand much of the other things going on in those societies. It
would be easier to explain their characteristic religious, political, moral, artistic, and
legal principles. His main argument was that in a capitalist economy, the working
classes (or proletarian) were exploited by the capitalist class (or the bourgeois).
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The second important doctrine is the doctrine of the class character of law.
According to Marx and Engels, law is considered to be the tool of the ruling class to
maintain its powers over the ruling classes. Law is characterized as an expression of
class will and it is the law and the state, and the means of production which
determine the character of the various classes in a society.
The third doctrine is what is known as the ‘withering away’ of law in the
future communist society. There is some controversy about this doctrine. Engels
anticipated that the society of the future would substitute (for the government) the
administration of things and that state in such a society would wither away5. The
‘withering away’ phenomenon was explained by Eugene Pashukanis6. He argued
that law is a social regulator in a market economy in which independent private
producers and owners of commodities exchange their produce by means of
contracts and transactions. He believed that law was out of place in a socialist society
which is characterized by unity of social purpose. He maintained that legal rules for
settling disputes between individuals and groups will not be needed in a socialist
society. Consequently, according to this view, when classes disappear after the
revolution, there is no need for a legal apparatus to continue and encourage class
rule. So, poverty and exploitation, which are see as the root causes of a crime, will
vanish within the new classless society and people will develop into ‘group
creatures’ having no need for codes and rules so that the need for institutionalized
law vanishes.
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MARXIST LEGAL THEORY
Marx’s ideas about law were expressed mainly in the Communist Manifesto
and On the Jewish Question which he published in collaboration with his friend
Friedrich Engels in 1848.
In Marxist thought, material relations of production (economy) constitute the
base, which determines the superstructure such as politics, religion, education,
culture and law. Capitalism is inconsistent with our species-being, because it
alienates us from labor, our production and from each other. The class conflict to
which this leads will eventually lead to the demise of capitalism. To avoid this,
capitalist relations of production need to be regulated, and this is the main task of
the superstructure.
One way of viewing the relationship between the economic base and law (as
an element of superstructure) is instrumentalist. In simple words, according to this
view, the law means the oppression and domination of the proletariat by the ruling
class (the bourgeoisie). The latter has stronghold on the State and its law and uses it
to promote its interests. It is on the basis of this that, according to Marx, law is
present in all phases of class domination prior to the proletariat revolution but not
to carry equal emphasis in all stages of development. Thus law is perceived as
having a relatively minor role in the phase of feudal domination but started to make
its role more prominent during the bourgeoisie phase, because of its least close
relationship with institutions of private property.
As Fredrich Engels said: “…law is sacred to the bourgeoisies, for it… enacted
…for his benefit… because the English bourgeoisies finds himself reproduced in his
law… the policeman’s truncheon… has for him a… soothing power. But… the
working man knows… that the law is a rod which the bourgeoisie has prepared for
him; and when he is not compelled to do so he never appeals to the law.”
Marx and Engels themselves devoted relatively little attention to law. Marx
concentrated on discrediting the illusion that law is a human intervention, or, as he
put it, matter of “mere will”. Jurists tell us, he says, that individuals can choose to
enter into relations with others through making contracts and that the content of
these relations rest purely on the individual free will of the contracting parties”. But
in fact, neither the general nor the private will can determine the existence of
property, and legal titles as such are meaningless since the legal owner who cannot
command the capital to cultivate his land really “owns nothing as a landed
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proprietor”. The true nature of law can be grasped only by recognizing its link with
the state.
Because the ruling class declares itself by setting up institutions that
constitute the state, it is supposed that law rests on will, “indeed on the will divorced
from its real basis – on free will”. But in reality the law, like all political institutions,
is an instrument through which the ruling class exercises its power to satisfy its
selfish interests. What the bourgeoisie describe as the freedom to make legal
arrangements is not only the reflections of the forms of relations in production at
any particular time, nor does the belief that law presupposes equality, a belief
promoted by the ruling class to correlate with any reality because law arises from
the dominance of one class over the others. Although law makes it possible for the
“personal rule” of the dominant class, it is nothing but the expression of the will,
that is to say, the common interests of the ruling class.
Example: When entering into an employment contract, the workers and the
industrialist are considered equal and their agreement is validated by precisely
those normative aspects imputed to them. But this blatantly disregards the real
discrepancies in wealth and bargaining power between the parties, the crippling
inequalities, which deprive workers of choice and those real forces, which in fact,
though not in law, make them enter into these contracts in order to secure a
livelihood.
One Marxist named Louis Althusser had said that there are two courses by
which the decision class can push its power over different classes:
1. By the utilization of power or force, (for example, police and armed force) .He
called these" Repressive State Apparatuses".
2. By the utilization of belief system, ideology and socialization, (for example,
broad communications, open promulgation, social specialists, and so forth.)
He called these "Ideological State Apparatuses".
Law forms a part of the Repressive State Apparatuses. The More dominant class,
i.e., the bourgeoisie class makes use of the system of law to exert their dominance
over the proletariat.
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MARXIST VIEW OF LAW, STATE, AND POLITICS
The doctrine of state and law is part of a broader whole, namely, the complex of
sciences which studies human society which in turn is itself determined by the
history of class struggle. Marxist theories of the State go together with the theory of
historical materialism propounded by Marx and Engels. One view of the state and
law, which is predominant in Marx's writings, is that they are a notion of the
economic interests of the bourgeoisie class. The state is thus viewed as an 'executive
committee to manage the affairs of the bourgeoisie.
The state acts as its oppressive agent in the civil society, suppressing the
interests of proletarian and favoring capitalism. The personnel of the state owe their
allegiance to only one particular class - the bourgeoisie. Lawyers would be viewed
as waged servants of this class. Law is thus, part of this oppressive state mechanism
and concentrate the ideological bewilderment
of
bourgeois
intellectualism.
The bourgeois class dominates political power through its domination of
economic ability. The bourgeois state and legal system are based on class
phenomena. According to Marx, class refers to large social groups which are linked
together in certain social relations within a mode of production. Each class receives
differential rewards, power, and status. Relations between classes tend to be
conflictual. Within the instrumental perspective, the state and legal system are seen
to focus on the interests of the dominant class. The state is not a representation of
any collective good or impartiality. It is, rather, important to certain specific
economic interests in society. Class interests are seen to head the state structure in
the interests of that class - the bourgeoisie in capitalist society. The history of states
is therefore incorporated under class interest.
The above view reflects woefully on a number of issues. First, there does not
appear to be any difference between a democratic rule-of-law constitutional state
(Rechtsstaat) and an unconstitutional, undemocratic despotism. Both are simply
exploitative class-based entities. The former state simply shields its basic
exploitative character more successfully, particularly under guises like the 'rule of
law'. Secondly, the 'general' rule-of-law principle and 'particular' property, contract
or criminal laws, are simply there to buttress the property owners of capitalism. The
rule of law is a typical example of legal fetishism, namely, giving law a false
autonomy from the economic and class base of society.
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Thirdly, Marx suggests that the so-called equal rights of liberal states have
grossly unequal effects. The rights of human beings are in reality the rights of
bourgeois men in civil society. They protect individual capitalists in their
exploitative practices and they protect the unequal economic results of such
practices. Rights are associated with individuals who 'own' them in order to protect
private interests. Rights thus shield the basic inequalities and exploitative practices
of bourgeois culture. Bourgeois culture ignores material inequalities and slavishly
adheres to formal legal, moral or political equality of rights (which favor the
Bourgeoisie) Marx found this whole scenario profoundly objectionable.
From the same perspective, equally, the justice that we observe in liberal
societies is just another aspect of the ideology of capitalism. It focuses minimally on
how goods might be distributed (if it gets as far as distributive justice) and ignores
the massive inequalities implicit in the production process itself. In other words, it
shuts the stable door after the capitalist horse has bolted. Justice is not a virtue for
communists. Marx thus quite explicitly takes an anti-justice and anti-rights stance.
With genuine communism, there would be no classes, no coercion, no conflict, and
no private ownership; in consequence, there would be no need for justice or right
claims. If there is abundance and communal ownership, then there is no reason for
principles of allocation or any allocating or adjudication mechanisms. In sum, Marx
objects to the whole notion of the “juridical legal state” as a complex sham. As law
is integral to the idea of the state in Marx, so the anti-statist stance of communism
implies the abolition of law.13 The stricter class view of the state and law also
suggests that if there were no class there would, in turn, be no law and no state.
Class conflict is the prerequisite of the state. This view was later crystallized in
Lenin's work, The State and Revolution. This idea, in turn, gives rise to the idea
(initiated by Engels and carried on by Lenin, although many would contend it was
also present in Marx) that the state and legal order will 'wither away'. In this sense
a communist society would be lawless and stateless (in a strictly descriptive sense).
Thus, from the standpoint of a strict materialism, the state is not a major player. The
end result of this looks very much like communist anarchism, although Marx
himself argued fiercely against such a conclusion and showed only vitriolic
contempt for anarchists like Proudhon and Bakunin. However, Marx never resolved
this issue of the relation between communism and mainstream anarchism.
MARX’S BELIEFS
• All of history was a “history of class struggles”
• Oppressors vs. oppressed is a constant throughout history
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•
•
•
•
•
•
•
•
•
Oppressors own means to production (land, raw materials and money)
Controlled government and society
Oppressed- dependent on the owners of the means of production
“Society as a whole is more and more splitting up into two great hostile
camps, into tow great classes directly facing each other: Bourgeoisie and
Proletariat”.
Bourgeoisie- the middle/upper class- also known as the oppressors Proletariat-working class –also known as the oppressed.
Struggle between proletariat and Bourgeoisie will eventually lead to a
revolution.
Proletariat would overthrow bourgeoisie
Abolish economic differences that create separate social classes
End up with a classless society
MARXISM AND HUMAN RIGHTS
Marx’s writings from the “Jewish Question” onward are wholly dismissive
of all claims made to the lasting validity of unremovable human rights “bourgeoisie
freedom”. The idea of the individual’s rights, Marx explains, implies a society in
which the interests of each person is naturally and inevitably opposed to the
interests of others, a society incurably torn asunder by the clash of private
aspirations. The dominant motivations in this society are bound to be egoistic – not
as a result of the corruption of human nature – but because of the character of the
economic system, which is inevitably laden by conflict. All rights and liberties in
bourgeois society simply assert and codify the simple fact the each individual’s
aspirations and interests inevitably conflict with, and are limited by the interests and
aspirations of others. Since the civil society is a place of all-pervasive and incessant
war, where no real community is possible, the state steps in to provide an illusory
unity, to set limits to the conflicts by imposing restrictions on hostilities. These
restrictions appear in the form of civil liberties, which necessarily take on a purely
negative character. Ideological legitimacy is given to the system by various social
contract theories.
‘Equal rights’ says Marx, we indeed have here; but it is still a ‘bourgeois’s right’
which, like every right, presupposes inequality. Every right is an application of a
uniform standard to different people who in fact are not identical, are not equal to
one another; and therefore ‘equal right’ is really a violation of equality and injustice.
Indeed every person, having performed as much social labor as another, receives an
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equal share of the social product […]People, however, are not equal; one is strong,
another is weak; one is married, another is not; one has more children, another has
fewer, and so on.
SUMMARY
1. Marxism is what is known as conflict theory because it states the conflict
between people in the society. It is a combination of critiques, political goals
and theories scattered around the theories of criticism of Karl Marx.
2. Karl Marx provides a perspective about what the law means, which in order
to appreciate, is important to place it within Marx’s overall socio-economic
and political context.
3. In the Marxist view, the bourgeoisie and the proletariat are the two classes
fighting for power. Societies that allow and give freedom to the bourgeoisie
to formulate laws and make moral decisions are unjust societies.
4. Marx explains that law, along with the whole state apparatus exists only for
the sake of private property.
5. Law will wither away in the future communist society which is characterized
by unity of social purpose. Legal rules for settling disputes between
individuals and groups will not be needed in a socialist society.
6. Within the instrumental perspective, the state and legal system are seen to
focus on the interests of the dominant class. The state is not a representation
of any collective good or impartiality.
7. For Marx, equally, the justice that we observe in liberal societies is just
another aspect of the ideology of capitalism. It focuses minimally on how
goods might be distributed and ignores the massive inequalities implicit in
the production process itself.
8. Marx defined the state and all its laws as mere instruments of class
oppression, which have to disappear when the final stage of human evolution
were finally accomplished.
CONCLUSION
To sum up, we can safely argue that the Marxian view of law is influenced
by his over-all theory of state and social change. Marx regards law as a part of the
superstructure. Since state is an instrument of class rule, law is made to serve the
interest of ruling classes and thus an arena of class struggle. The claim made in
excessive optimism that laws are made in the general interest of the public,
according to Marx, is only an ideological smokescreen to ensure its obedience by all.
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VI.
FEMINISM
Reported by:
NAGUIT, Jocelyn Mutya
VALES, April Angel
FEMINISM – A Shift from Inequality to Equality
“Feminism is not about having power over men, but power over ourselves.”
“I raise up my voice not so that I can shout, but so that those without a voice
can be heard”
EARLY FEMINISM
In his classic Republic, Plato advocated that women possess “natural capacities”
equal to men for governing and defending ancient Greece. Not everyone agreed
with Plato; when the women of ancient Rome staged a massive protest over the
Oppian Law, which restricted women’s access to gold and other goods, Roman
consul Marcus Porcius Cato argued, “As soon as they begin to be your
equals, they will have become your superiors!”
Plato radically promoted the idea that in an ideal society, all worthy individuals
would receive training and an education, regardless of sex. While Plato believed
women to be physically weaker than men, he establishes in Laws that women would
inevitably become more equal to men if they received appropriate training.
So even in ancient time, women rights are not recognized and are set aside. As for
the second wave of feminism, it began as a liberation movement. The idea was that
women are entitled to be free and equal citizens—as free as men to participate in
their societies, to pursue their ambitions and determine their own lives. A starting
place for achieving equal citizenship was political equality.
Right to Vote
These are the other rights we, women gained because of Feminism.
Increased educational opportunities, Protections against workplace discrimination,
The right to make personal decisions about pregnancy, Access to contraception and
legal abortions, Protection from sexual assault, sexual harassment, and domestic
violence, The right to earn an equal wage, Right to enter legal contracts, women
cannot own property.
62
Feminist Philosophy of Law
Feminist philosophy of law which identifies the pervasive influence of
patriarchy and masculinist norms on legal structures and demonstrates their effects
on the material conditions of women and girls and those who may not conform to
cisgender norms. In philosophy of law, as in feminist theory more generally,
methods, presumptions, and approaches vary considerably. Radical, socialist and
Marxist, postcolonial, transnational, relational, cultural, postmodern, dominance,
difference, pragmatist, liberal, and neoliberal approaches to feminism are all
represented in and provide differing contributions to feminist legal philosophy.
Feminist Legal Theory
Feminist legal theory is the manifestation of efforts to understand and propose
remedies for the subordination of women, particularly in relation to the ways it is
rationalized and naturalized in the legal system. It approaches law as a site of
struggle for political transformation and exposes how legal doctrines, institutions,
and culture perpetuate gender hierarchy. Feminism jurisprudence or feminist legal
theory claims that law should be equal for all, without any social prejudice or male
domination. It is understood as “a body of legal scholarship dedicated to
understanding issues of relevance to the law’s treatment of gender and sexuality”.
Feminist legal theory aims to:
• Understand how the legal system rationalizes and naturalizes the
subordination of women;
• Expose how legal institutions, culture, and doctrines perpetuate gender
hierarchy;
• Identify the effects of patriarchy and masculinist norms on the material
conditions of women and girls;
• Develop reforms to correct gender injustice, exploitation, or restriction;
• Analyze and redress more traditional legal theory and practice; and
• Identify gendered components and implications of seemingly “neutral” laws
and practices
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Feminist legal theory is a critical theory that seeks to understand and address the
subordination of women in the legal system. It does this by:
a. Identifying bias - Feminist legal theory uses methodologies like genealogical
analysis, conceptual analysis, and normative critique to identify bias in the
legal system.
b. Challenging assumptions - Feminist legal theory questions assumptions
about the law, such as the idea that law is objective and impartial.
c. Creating new doctrines - Feminist legal scholars use women’s experiences
and perspectives to create new doctrines, methods, and proposals for reform.
d. Exposing gender hierarchy - Feminist legal theory exposes how legal
doctrines, institutions, and culture perpetuate gender hierarchy.
Feminist legal theory has grown alongside the increase of women in lawyering,
law-making, and judging professions. The work of feminist legal scholars and
activists has influenced each other, but laws male bias remains pervasive.
MODERN FEMINISM
What is modern feminism defined by? Feminism is a set of values aimed at
dismantling gender inequality and the structures that uphold it.
Today, Gender-based violence, harassment, and discrimination are more
widely recognized, thanks to feminism. Modern feminism emphasizes the need for
recognizing the many experiences that women have, pushing for legislative reforms,
and helping survivors. We can create a society that is more just and equitable for
people of all genders by waging ongoing battles for equality on all fronts and
adopting an inclusive mindset. Feminism is still vital to establishing a more
promising future.
Distinctions are often made among various strands of contemporary feminist
legal theories. We have liberal feminists, radical feminists, postmodern feminists,
and cultural feminists.
Liberal feminists searching for ‘equality before the law,’ such as employment
and politics. Such was met with criticism as it seeks to work within the system built
by men without necessarily challenging such a system.
The second wave comprised Radical feminists and Marxist/ socialist
feminists who focused on the ‘societal structure which forms the foundation of the
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law.’ This wave unmasked the masculinity of the law, legal systems, and society, in
general, which resulted in female subordination. The third wave consists of
postmodern feminists who raised that laws are as complicated as societies. To these
theorists, while the law is gendered, the law responds to differing problems in
different and even inconsistent ways.
PHILIPPINES IN VIEW OF GENDER EQUALITY
The Philippines continues to lead as the most gender-equal country in Asia
with a 79.1 percent gender parity based on the 2023 Global Gender Gap Index Report
by the World Economic Forum.
The national average male to female ratio for Philippines law firms is 67 to 33
percent is slightly better than the overall Asia average of 71 to 29 percent.
Male attorneys still greatly out number female attorneys, but that is gradually
changing as more women are actively participating in our today’s society just like
in legal field.
FEMINISM IN OTHER COUNTRIES
Unfortunately, in other parts of the world, for example in Afghanistan, instances of
inequality still exists. According to CNN News, Taliban officials have suspended
education for female students in Afghanistan.
Preceding this suspension, women have also been completely restricted from
working in certain sectors and traveling long distances without a male guardian.
The motivation behind this ban was the failure of women to adhere to specific rules
enforced earlier that year, such as a strict dress code. These rules themselves are
already forms of suppressing women’s freedom, and it’s also evident that these
stern rules leave men to have more control over society.
There are also instances in western countries like the United States. One key example
is the overturning of Roe v. Wade in June 2022, which resulted in abortion being
banned to varying degrees in 13 different states. This ban is a clear dismissal of
women’s agency over themselves and their bodies.
Furthermore, there are subtler but still widespread instances in both the workplace
and schools, in which women are not treated equally. Some examples include
65
unequal pay, a preference towards men when it comes to promotions, and unsafe
environments which could potentially lead to sexual harassment. The wage gap is
still a serious problem in the U.S. today, as a woman gets paid 77 cents for every
dollar that a man makes. This disparity in income dates back to times when women
were starting to acquire the right to work.
Perhaps, the claim that gender equality has already been established is completely
incorrect, not just globally but also domestically.
Feminism is often misunderstood as the concept that women are somewhat
superior, or that all of the blame for gender inequality falls on men, who must now
be punished for the patriarchy. This perception of feminism does not demonstrate
its true definition, which is simply fighting for equality between men and women
CONCLUSION
Legal efforts have focused, inter alia, on expanding reproductive freedom, deterring
sexual violence, and eliminating sex-based discrimination in employment,
education, family, welfare, and related contexts.
Law furthers social stability but may entrench norms of oppression. Law can also be
a necessary means for reform. Law can be an anchor to the past or an engine for the
future. Each function has its place.
Feminist legal philosophy is an effort to examine and reformulate legal doctrine to
overcome entrenched bias and enforced inequality of the past as it structures human
concepts and institutions for the future.
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VII.
LGBTQIA+
Reported by:
GARCIA, Edward
LUGUE, Jamey Lynn
NABATA, Christin Jireh
HISTORY AND BACKGROUND
Terms: SOGIE
Sexual Orientation: This is about who you're attracted to. It's about the gender(s) of
the people you feel romantic or sexual attraction towards. Examples include
heterosexual (attracted to the opposite gender), homosexual (attracted to the same
gender), bisexual (attracted to more than one gender), and others.
Gender Identity: This is who you are inside in terms of gender. It’s your personal,
internal sense of being male, female, both, neither, or somewhere along the gender
spectrum. It’s something you feel and understand about yourself, regardless of what
you show outwardly.
Gender Expression: This is how you show your gender to the world. It’s the
outward way you express your gender identity through things like clothing,
hairstyle, body language, and voice. Your gender expression might be more
masculine, feminine, or somewhere in between, and it can vary over time.
You can have a gender identity that doesn’t necessarily match your expression. For
example, someone might identify as female (identity) but choose to dress in a more
androgynous or masculine way (expression).
Brief History of LGBTQIA+
Homosexuality is an attraction between persons of the same sex. It was
removed from the American Psychological Association (APA) list of mental
disorders in 1973. APA stated that "homosexuality per se implies no impairment in
judgment, stability, reliability, or general social and vocational capabilities."
The Psychological Association of the Philippines (PAP) released the LGBT
Non-discrimination Policy Resolution in October 2011 as a response to complaints
against a certified psychologist who recommended conversion therapy for children.
This resolution also reinforced the American Psychological Association’s position in
1973 viewing same-gender sexual orientations as healthy, non-disordered variant of
human sexuality, love, and relationships.
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In understanding gender, one must consider other influences such as identity,
expression, attraction, and biology. Terms to remember are the following:
• Gender Identity – how one considers oneself, e.g., woman, genderqueer, or
man
• Gender Expression – how one shows one’s gender through actions, outfits,
behavior, interactions. This includes being feminine, androgynous (a
mixture), or masculine
• Biological Sex – refers to the organs, hormones, and chromosomes that
influence gender, e.g., female, intersex, or male
• Sexual Orientation – refers to the physical, emotional, and spiritual attraction
based on another’s gender in relation to one’s own gender, e.g., heterosexual,
bisexual, or homosexual
“Gay” was used as an umbrella term to describe the whole community for many
years. When the acronym was created, all variations start with “L” as a gesture of
gratitude for the support of the lesbian community who cared for gay men with
illness. The acronym was set in stone as “LGB”.
LGBTQIA+ represents inclusivity. This acronym means Lesbian, Gay, Bisexual,
Transgender, Queer/Questioning, Intersex, Asexual, and a plus sign at the end of
the LGBTQIA+ acronym.
Explanation on the acronym:
• Lesbian – a woman attracted to another woman
• Gay – a man attracted to another man
• Bisexual – an individual attracted to both females and males
• Transgender – a person’s gender identity is different to the gender associated
to the assigned sex at birth
• Queer/Questioning – means operating outside the norms; someone who is
still exploring
• Intersex – an individual who is born with variations of sex characteristics that
do not fit with binary definitions of male or female bodies
• Asexual – also called “ace” refers to someone who has little or no sexual
attraction; they may, however, experience romantic attraction
• + or plus – meaning anyone who is not listed in the acronym but still
identifies as part of the community, including but not limited to the list
below:
• Pansexual – an individual attracted emotionally, romantically, and/or
sexually to another regardless of gender
• Aromantic – an individual who has little to no romantic attraction
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•
Genderfluid – an individual without any fixed gender identity
Modern day gay rights movement started when the police raided Stonewall Inn
in Manhattan, New York City on June 28, 1969 which led to the 6-day Stonewall
Riots starting on June 29. It was where the community frequently came together in
the years where solicitation of same-sex relations was illegal in New York City.
Around the 1960s, bars were constantly raided arguing that the mere gathering
of homosexuals was disorderly. Although the commission on human rights ruled
that gay individuals had the right to be served in bars, police harassment continued.
The Stonewall Inn was purchased and managed by a crime syndicate family or
mafia who saw profit in catering to shunned gay clientele, looking for places of
refuge. It involved the blackmailing of club patrons who want to keep their sexuality
a secret and also the bribing of New York’s 6th police precinct to ignore activities
within the club.
Raids continued but the Stonewall Inn was usually tipped off by corrupt police
officers.
However, the Stonewall raid on June 28, 1969 was not tipped off. This raid
resulted in the 6-day riots against social discrimination. The celebration of the LGBT
Pride in the month of June was in recognition of the activists’ efforts. It was a
galvanizing force for LGBT political activism that led to numerous gay rights
organizations.
History of Pride March
There was a one-year anniversary of the riots on June 28, 1970 where people
marched the streets from Stonewall Inn to Central Park and would be known as the
Christopher Street Liberation Day March. This was the first gay pride parade with
an official chant of “Say it loud, gay is proud”.
The Stonewall Riot was commemorated around the world including the
Philippines. In the 20th anniversary of the riot, PROGAY Philippines or the
Progressive Organization of Gays in the Philippines and the Metropolitan
Community Church in Manila organized a pride march on June 26, 1994 held in
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Quezon City. The march was small in number with 60 participants, but it was the
first time for the LGBT community to speak out for equality in public.
The pride flag with the colors of the rainbow was created in 1978 by artist
Gilbert Baker. He stated that flags are torn from the soul of the people.
In 2015, Gilbert was asked to contribute a Rainbow Flag to the permanent
collection at New York City’s Museum of Modern Art. The unveiling ceremony took
place on June 26, the same day that the Supreme Court of the United States legalized
gay marriage nationwide.
Currently, the community uses many different flags that represent different
identities, each with different colors and meanings. Additionally, the community
spreads awareness of respecting preferred pronouns.
Existing National Laws and Policies
a. Same-sex marriage is not legally recognized in the Philippines.
As a reminder that laws reflect the people, our country's legal
framework, societal norms, and religious beliefs, particularly the influence of
the Roman Catholic Church, contribute to this stance.
b. Department of Education (DepEd) Child Protection Policy in 2012
This policy includes provisions to protect Children in School from
Abuse, Violence, Exploitation, Discrimination, Bullying and Other Forms of
Abuse.
It includes in its definition of terms and prohibited acts, the part which
is “Discrimination against children” – this refers to an act of exclusion,
distinction, restriction or preference which is based on any ground such as
age, ethnicity, sex, sexual orientation and gender identity, language, religion,
political or other opinion and even those being infected or affected by Human
Immunodeficiency Virus and Acquired Immune Deficiency Syndrome
(AIDS).
The policy includes programs that are intended to promote Positive
and Non-Violent Discipline. Schools must use training modules which
include positive and nonviolent discipline in classroom management, anger
and stress management and gender sensitivity.
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Local Anti-Discrimination Ordinances
Numerous local government units (LGUs) have enacted anti-discrimination
ordinances to protect LGBTQ rights at the local level. Some prominent examples
include:
1. Quezon City
In 2003, Quezon City became the first Philippine city to pass an antidiscrimination ordinance protecting LGBTQ individuals. The ordinance has since
been updated and strengthened to include comprehensive protection against
discrimination in employment, education, healthcare, and other sectors.
They have established the QC Pride Council which is supposed to integrate
the city’s programs with the LGBT community.
The city also passed other ordinances such as the Gender-Fair Ordinance in 2014
for prohibiting discrimination against the community in their workplace,
educational institutions and in the delivery of goods and services. The ordinance
also lists “affirmative acts” that should be adopted in these areas, like equal pay and
sensitivity training in workplaces.
2. Cebu City
Cebu City passed its Anti-Discrimination Ordinance in 2012, prohibiting
discrimination based on sexual orientation and gender identity in employment,
education, and other areas.
3. Davao City
Davao City implemented an anti-discrimination ordinance in 2012, which
covers SOGIE-based discrimination and includes penalties for violators.
4. Iloilo City, Baguio City, and Mandaluyong City
These cities, along with several others, have passed similar ordinances to
prevent SOGIE-based discrimination in their jurisdictions.
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SUPREME COURT CASES INVOLVING LGBTQIA+ IN THE PHILIPPINES
o Silverio v. Republic
o Ang Ladlad LGBT Party v. Commission on Elections
o Cagandahan v. Republic
o Falcis v. Civil Service Registrar
o Laude vs. Ginez-Jabalde
Silverio vs Republic
FACTS
Rommel Jacinto Dantes Silverio, born male, alleged that he is a male
transsexual, that is, "anatomically male but feels, thinks and acts as a
female" and that he had always identified himself with girls since
childhood. Silverio finally underwent sex reassignment surgery in
Bangkok, Thailand on 2001.
She (let’s use the she/her pronouns because Silverio identifies as a
female) lived from then on as a female and got engaged. She petitioned
to change her first name from "Rommel Jacinto" to "Mely" and her sex
from "male" to "female" in her birth certificate.
RTC: granted the petition with the principles of justice and equity. RTC
believes no harm or prejudice will be caused and will bring happiness
to Silverio and American fiance. (sobrang nakakatouch yung sinabi ng
RTC huhu)
However, the Republic of the Philippines, represented by the Office of
the Solicitor General (OSG), appealed to the Court of Appeals, arguing
that there was no legal basis for such changes in the birth certificate.
CA: ruled in favor of the Republic, setting aside the trial court's
decision.
Petitioner’s arguments: Petitioner essentially claims that the change of
his name and sex in his birth certificate is allowed under Articles 407
to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and
RA 9048.
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ISSUE
(1) WON a person who has undergone sex reassignment surgery
validly contract a marriage as a person of the sex to which they have
transitioned? NO.
(2) WON a person who has undergone sex reassignment surgery can
legally change the name and sex in their birth certificate. NO.
RULING (1) NO. The Supreme Court ruled that a person who has undergone
sex reassignment surgery is still legally considered to be of the sex they
were assigned at birth for the purposes of marriage under Philippine
law. Silverio is still considered male.
Article 2 of the Family Code stipulates that the essential requisites of a
valid marriage include the legal capacity of the contracting parties,
who must be a male and a female. Since the Philippine legal system
does not recognize changes in a person's sex for purposes of marriage
registration and family relations, the Court found that Silverio, despite
undergoing sex reassignment surgery, could not be legally recognized
as female. As such, Silverio’s marriage to a male would be deemed
invalid under Article 2, which requires that one party be male and the
other female
(2) NO. There is no law in the Philippines allowing the change of
name or sex in a birth certificate based on sex reassignment surgery.
(and sad naman huhu)
The Court emphasized that a change of name is a privilege, not a right,
and is controlled by statutory provisions.
Article 376 of the Civil Code states that no person can change their
name or surname without judicial authority. However, even with
judicial authority, the reasons for changing one’s name do not extend
to sex reassignment, as there is no legal provision for such a change.
The court clarified that judicial authority under Article 376 is limited
to situations explicitly recognized by law, which does not include
changes in civil registry entries based on sex reassignment.
Republic Act No. 9048 (Clerical Error Law) allows the correction of
clerical or typographical errors in civil registry entries without the need
for a judicial order, except for changes involving the sex, nationality,
status, or legitimacy of a person. The Court noted that Silverio's request
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falls outside the scope of the Clerical Error Law because it involves a
substantial change, not merely a clerical or typographical correction.
Article 412 of the Civil Code provides that no entry in a civil registry
shall be changed or corrected without a judicial order. The Court ruled
that while a judicial order is necessary to change civil registry entries,
it must be based on legal grounds. Since no law permits the change of
sex based on reassignment surgery, the judicial order issued by the
RTC was deemed beyond the court's authority.
Ladlad vs COMELEC
FACTS
The case "Ang Ladlad LGBT Party v. Commission on Elections" was
decided by the Supreme Court of the Philippines on April 8, 2010. Ang
Ladlad, an organization representing the LGBT community, first
applied for party-list registration with the Commission on Elections
(COMELEC) in 2006 but was denied due to a lack of substantial
membership. "Lack of substantial membership" refers to the
insufficient number of members or supporters within an organization
to demonstrate that it has a genuine and active base
In 2009, Ang Ladlad filed another petition, emphasizing that the LGBT
community is marginalized and under-represented, suffering from
discrimination and violence.
However, the COMELEC dismissed their petition on moral grounds,
citing that Ang Ladlad’s advocacy allegedly promoted immorality and
contravened religious teachings, referencing religious texts to justify
their decision. The COMELEC further argued that accrediting the
group would endanger society’s moral fabric and negatively influence
the youth.
After a divided vote among the COMELEC commissioners and a
decision from the Chairman upholding the dismissal due to Ang
Ladlad’s perceived lack of a national political agenda, Ang Ladlad
petitioned the Supreme Court to annul the COMELEC's resolutions
and compel the approval of their application. The Office of the Solicitor
General supported Ang Ladlad, contending that the COMELEC’s
claims of immorality were unsubstantiated.
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ISSUE
Whether the COMELEC’s denial of Ang Ladlad’s application for partylist accreditation on the grounds of immorality and societal harm
violated Ang Ladlad’s constitutional rights.
RULING The Supreme Court ruled in favor of Ang Ladlad, determining that the
COMELEC's actions infringed upon Ang Ladlad’s rights to privacy,
freedom of speech and assembly, and equal protection under the law.
The Court highlighted the non-establishment clause of the
Constitution, requiring governmental neutrality in religious matters,
and dismissed moral disapproval as insufficient grounds for exclusion
from the political process.
The Court recognized the LGBT community as a marginalized and
under-represented sector entitled to party-list participation.
Cagandahan v. Republic
FACTS
Jennifer B. Cagandahan was born on January 13, 1981, and registered
as female on her birth certificate. Due to Congenital Adrenal
Hyperplasia (CAH), she developed secondary male characteristics,
including ambiguous genitalia and male hormone production.
On December 11, 2003, she filed a Petition for Correction of Entries in
her Birth Certificate with the Regional Trial Court (RTC) of Siniloan,
Laguna, seeking to change her name from Jennifer to Jeff and her
gender from female to male. This was supported by medical testimony
from Dr. Michael Sionzon, who confirmed her body's production of
male hormones. The RTC granted her petition on January 12, 2005,
ordering the changes in her birth certificate and other pertinent
records.
ISSUE
Did the trial court err in granting the petition for correction of entries
in the birth certificate to change the respondent's sex or gender from
female to male and name from "Jennifer" to "Jeff" under Rules 103 and
108 of the Rules of Court?
RULING
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Falcis III vs. Civil Registrar General
FACTS:
Jesus Nicardo M. Falcis III, who filed a Petition for Certiorari and
Prohibition under Rule 65 of the 1997 Rules of Civil Procedure on May
18, 2015. Falcis sought to declare Articles 1 and 2 of the Family Code
unconstitutional, which define marriage as a union between a man and
a woman, and to nullify Articles 46(4) and 55(6) of the Family Code.
Falcis, an openly homosexual individual, claimed that these provisions
violated his rights to due process, equal protection, and the right to
marry. The Civil Registrar General was named as the respondent. The
LGBTS Christian Church, Inc., Reverend Crescencio "Ceejay" Agbayani,
Jr., Marlon Felipe, and Maria Arlyn "Sugar" Ibañez intervened,
supporting Falcis' claims.
ISSUE:
W/N denying same-sex couples the right to marry tantamount to a
denial of their right to life and/or liberty without due process of law?
HELD:
The Court found that there was no actual case or controversy, and that
Falcis lacked legal standing. The Court emphasized the need for public
discussion and legislative action on the recognition of same-sex
marriage.
The Court's decision was based on several key points. First, the Court
found that the mere passage of the Family Code did not create an actual
case or controversy, as Falcis had not applied for a marriage license and
had not been directly injured by the provisions he challenged. Second,
the Court held that Falcis lacked legal standing because he had not
suffered a direct injury. Third, the Court determined that the petitionin-intervention did not cure the procedural defects of the original
petition. Fourth, the Court ruled that the issues raised were not of
transcendental importance and did not warrant bypassing the
hierarchy of courts. Finally, the Court emphasized that the recognition
of same-sex marriage should be addressed through public discussion
and legislative action, rather than judicial fiat.
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o
G.R. No. 217456: Laude vs. Ginez-Jabalde
Laude vs. Ginez-Jabalde
FACTS:
Marilou S. Laude and Mesehilda S. Laude filed a petition against Judge
Roline M. Ginez-Jabalde and several other respondents. The case arose
from the murder of Jeffrey "Jennifer" Laude on October 11, 2014, in
Olongapo City, allegedly by Pemberton. A complaint for murder was
filed on October 15, 2014, and Pemberton was detained at Camp
Aguinaldo on October 22, 2014. The Public Prosecutor filed an
Information for murder on December 15, 2014, and Pemberton was
arraigned on December 19, 2014. On the same day, Marilou S. Laude
filed an Urgent Motion to transfer Pemberton's custody to the Olongapo
City Jail and to allow media coverage. The motion was denied by Judge
Ginez-Jabalde as was Laude’s motion for reconsideration.
ISSUE:
W/N trial court commit grave abuse of discretion in denying the
Urgent Motion to transfer custody of Pemberton to the Olongapo City
Jail
HELD
The court denied the petition because the petitioners failed to comply
with the three-day notice rule for filing motions, which is essential for
ensuring that the adverse party has sufficient time to prepare and
respond. This noncompliance was deemed unjustified and a violation
of procedural due process. Additionally, the court found that the
petitioners did not demonstrate any grave abuse of discretion by the
trial court judge, and the issues raised regarding custody under the
Visiting Forces Agreement were not sufficient to warrant the requested
relief.
o
SOGIE BILL v. R.A. 11313 [comparison]
SOGIE Bill V. R.A. 11313
The SOGIE Bill is more directly focused Although it does not focus on SOGIEon addressing issues of discrimination related discrimination explicitly, the
against the LGBTQ+ community, Safe Spaces Act provides significant
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aiming to provide comprehensive legal
protection and rights. Its focus on
employment, education, and other
public services is crucial for promoting
equality in a broader context. However,
the bill has faced difficulty passing in
Congress due to opposition, particularly
from conservative groups.
protection for LGBTQ+ individuals
from harassment, especially in public
spaces and workplaces. The law
acknowledges that LGBTQ+ persons,
especially transgender individuals, face
unique
challenges
related
to
harassment. The Safe Spaces Act
complements the SOGIE Bill by
offering a legal framework for
addressing harassment that may
intersect with issues of SOGIE.
Prominent LGBTQ movements and advocacy groups in the Philippines that have
significantly contributed to pushing for legislation or policies related to LGBTQ
rights:
Ladlad Party
Established in 2003, Ladlad is the first LGBT political party in the Philippines.
It has advocated for anti-discrimination policies and the recognition of LGBTQ
rights, bringing visibility to LGBTQ issues in the political sphere. Although
unsuccessful in gaining congressional seats, Ladlad's efforts influenced awareness
and support for LGBTQ rights among legislators.
UP Babaylan
Formed in 1992, UP Babaylan is the oldest LGBTQ student organization in
the Philippines, based at the University of the Philippines. It has been active in
advocating for LGBTQ rights on campus and in the broader community, supporting
legislation such as the Anti-Discrimination Bill (ADB) through awareness
campaigns and advocacy.
Philippine LGBT Chamber of Commerce
This organization has advocated for diversity and inclusion in the workplace
and contributed to legislative discussions around the SOGIE Equality Bill. The
chamber emphasizes economic empowerment and inclusion for LGBTQ
individuals, working with corporations and policymakers to create inclusive
policies.
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Metro Manila Pride
Originally organized in the 1990s, Metro Manila Pride is a community-led,
non-profit organization that annually holds the Metro Manila Pride March. It has
been instrumental in raising awareness and gaining public support for the SOGIE
Equality Bill and other inclusive policies.
Bahay Tuluyan
This organization, while primarily focused on supporting marginalized
children, has advocated for LGBTQ youth, particularly regarding anti-bullying
policies in schools. Their advocacy has contributed to the development of LGBTQinclusive programs within the Department of Education.
Galang Philippines
This grassroots organization advocates for LGBTQ rights, especially among
low-income LGBTQ communities. Galang Philippines has worked on local
legislation for anti-discrimination ordinances and supported national campaigns for
the SOGIE Equality Bill, emphasizing intersectionality in LGBTQ advocacy.
LGBT Pilipinas
A national federation of LGBTQ organizations, LGBT Pilipinas has been at
the forefront of pushing for the SOGIE Equality Bill and other legislative reforms.
They represent LGBTQ issues in various government consultations, amplifying the
community’s voice on a national scale.
Home for the Golden Gays
The Home for the Golden Gays (HGG), is a Philippine non-profit
organization that provides support and care facilities for elderly LGBTQ people. It
was originally established in 1975 by Justo Justo (September 21, 1941 – May 18, 2012),
a Filipino columnist, Pasay City councilor, and LGBTQ activist. Currently, there are
around 40 active members of the organization, mostly aged 60 and above. They are
colloquially known as "the lolas" (lola is Filipino for "grandmother").
These groups and movements have made considerable strides in pushing for
inclusive policies, the passage of the SOGIE Equality Bill, anti-discrimination
ordinances, and other legislative reforms aimed at advancing LGBTQ rights and
protections in the Philippines.
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VIII.
EASTERN PHILOSOPHY
Reported by:
DAVID, Kevin Christofer
HERRERA, Dominique Ricca
INTRODUCTION
The “self” is an illusion. Personal identity, consciousness, and core
philosophies are all illusions. This is what Eastern Philosophy speaks about.
Eastern philosophy, that originated from the Eastern and Southern part of
Asia, believes that we are all interconnected and part of a greater universal whole.
Hindus believe that the Atman, or human soul, is a part of Brahman, the soul of god.
Atman is part of Brahman, and therefore cannot be a completely separate entity or
"self." Buddhists believe that we are all so interconnected that there can be no
distinctions of "self" made between us, and "the self" is ultimately an illusion.
LEGAL SYSTEMS
A legal system is the framework of rules, procedures, and institutions that a
community uses to interpret and enforce their laws. A legal system is binding on all
legal disputes within its jurisdiction.
There is no uniform legal system across the globe. Each jurisdiction uses its
own legal system. The type of legal system a jurisdiction uses will have a significant
impact on the application of the law.
A. COMMON LAW SYSTEM
• Common law meant judge-made law that filled in gaps when
there was no written law. Judges looked to prior decisions to
determine the unwritten judge-made law and apply it to new
cases. However, today, almost all law is in writing and enacted
by a legislature as statutes.
• A purely common law system is created by the judiciary, as the
law comes from case law, rather than statute. Thus, a common
law system has a strong focus on judicial precedent, stare
decisis, and the rule of law.
B. CIVIL LAW SYSTEM
• However, most of the world uses a form of the civil law system.
A pure civil law system is governed by statutes, rather than by
case law. In a civil law system, the judge takes a more active
role in the investigation.
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•
•
A civil law system relies on comprehensive legal codes that
contain all laws for the country
In civil law systems, court cases are investigations by the court
to see how the facts fit into the already established codes
applicable to the situation. The court system is set up so that the
jurisdiction of each court is a specific type of code: tax courts,
administrative courts, maritime courts, constitutional courts,
and so on.
C. RELIGIOUS SYSTEM
• In a religious law system, the law relies on religious texts as its
primary basis, and the courts interpret the present facts and
statutes in light of those religious texts. Many Middle Eastern
countries use religious law systems for all or part of their laws.
• The legislature enacts statutes, but all are tested against Islamic
tenets. Certain religious leaders can overrule any government
act, including court decisions, on religious grounds. The legal
system includes general and summary sharia courts, with some
administrative tribunals for specific topics. Religious law
systems do not use juries, and criminal trials do not present
defensive evidence to the same extent as in other legal systems.
Each judge, a specialist in the religious sharia text, makes their
interpretation of the law and is not bound by any precedent.
D. OTHERS
• Aside from Common, Civil, and Religious law systems, we also
have Customary and Hybrid or Mixed Legal Systems.
Is there a “god?”
Eastern Philosophy stands strong on the existence of a god. According to
some Eastern Philosophers, the question, of whether there is a god, is answered with
a yes. Moreover, this god is not a man or a woman. This God (AKA Tao), is cosmic
energy, which is the beginning, and the end. Every action has an opposite reaction.
One needs to understand this and build up good Karma before they are able to
transcend. Since the world is unpredictable, and everyone has to become, what they
are meant to be, judgment is not necessary. If a person takes the wrong path, then
the soul will be born again, so that it will have another chance, to do it right.
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To establish, eastern philosophies center on various religions found in the
East and South of Asia. These philosophies are deeply rooted in religion - such as
Buddhism, Confucianism, Hinduism, and so on.
1. CONFUCIANISM
Confucianism is a Chinese philosophy that focuses on social and ethical
conduct, and is often described as a "civil religion.” Confucianism is a philosophy
and belief system from ancient China that laid the foundation for much of Chinese
culture.
Confucianism promotes ancestor worship and human-centered virtues for
living a peaceful life. Some examples of ancestor worship include maintaining a
shrine in one’s home for relatives that have passed on and making offerings of food
and drink, flowers or incense at gravesites. The golden rule of Confucianism is “do
not do unto others what you would not want others to do unto you.”
It is worthy to note, however, that scholars argue whether Confucianism is a
religion or not. It began as a revival of an earlier religious tradition and has some
characteristics of the Western framework of religion. There are also Confucian
temples where important community and civic rituals happen. There are no
Confucian gods, and Confucianism focuses neither on the creation of the Earth or
human life nor the afterlife. Although many people emphasize that Confucianism is
both a religion and a philosophy, it is better understood as an ethical guide to life.
The main idea of Confucianism is the importance of having a good moral
character, which can affect the world around a person through the idea of cosmic
harmony. This moral character is achieved through the virtue of ren, or “humanity,”
which leads to more virtuous behaviors, such as respect, altruism and humility. He
thought that people are essentially good yet may have strayed from the appropriate
forms of conduct. Rituals in Confucianism were designed to bring about this
respectful attitude and create a sense of community within a group.
a. Beliefs - Confucianism is based on the belief that people are inherently
good, and can be improved through self-cultivation and personal
effort.
b. Values - Confucianism emphasizes virtues such as kindness,
righteousness, wisdom, sobriety, and trustworthiness.
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c. Relationships - Confucianism is based on the idea that people should
behave well towards others, and that relationships are important for
balance in life.
d. Influence - Confucianism has influenced cultures and countries in the
Chinese cultural sphere, including China, Taiwan, Korea, Japan, and
Vietnam.
e. Characteristics - Confucianism is different from other religions
because it has no deity, and it's not established in a way that competes
with other religions.
f. Punishment - Confucianism advocates for moderate punishments
that aren't the primary way to manage society.
g. Justice - Confucian corrective justice aims to restore harmony and
peace in human relations, not to punish violators or uphold the legal
order.
h. Rule of law - Some say Confucianism is incompatible with modern
rule of law because it values social roles and status over legal
resolution and equality before the law.
i. Compatibility - Others say Confucianism is compatible with the rule
of law and has co-existed with Chinese legal systems throughout
history.
Other aspects of Confucianism and law:
j. Moral law - Confucianism holds that human law should be
subordinate to a higher moral law that's revealed by reason.
k. National authority - Confucianism supports obeying national
authority, but only within the context of moral obligations that rulers
have toward their subjects.
l. Revolution - Confucians recognize the right of revolution against
tyranny.
Effect of Confucianism
It can be said that Confucianism does not play an important role in the
regulation of punishment in general and the death penalty in particular in the law.
The great success of Confucianism is that it protects Confucian moral values in legal
regulations. The relations between a ruler and his minister, father and child,
husband and wife, in which the submission of the minister to the ruler, the child to
the father, and the wife to the husband with the values of loyalty, filial piety, and
getting along with siblings were protected by the criminal laws through severe
85
penalties for violations including capital punishment. The making of laws and
regulating penalties were based on the principles of Legalism more than
Confucianism.
Confucius’s pessimism about the law in the form of punishments is that it
would not build a sense of shame, as the people would merely seek to avoid
punishments. It is not enough for Confucius to avoid punishments, as his
philosophical goals were not simply to create a society that avoided legal
punishments, but to cultivate individuals to actively seek good. Instead, people
ought to be led by virtue and li, in which they would have a healthy sense of shame
that would lead to the self correction of their wrongness into a good moral character.
Thus, the goal is not just to prevent misconduct, but to develop proper moral
emotions, like a sense of shame to moral shortcomings which would motivate moral
development.
2. COMMUNISM
Communism was an economic-political philosophy founded by Karl Marx
and Friedrich Engels in the second half of the 19th century. Marx and Engels met in
1844, and discovered that they had similar principles. In 1848 they wrote and
published "The Communist Manifesto." They desired to end capitalism feeling that
it was the social class system that led to the exploitation of workers. The workers
that were exploited would develop class consciousness.
It became the dominant political philosophy of many countries across Asia,
Eastern Europe, Africa and South America. In the late 19th century, communist
philosophy began to develop in Russia. In 1917, the Bolsheviks seized power
through the October Revolution. This was the first time any group with a decidedly
Marxist viewpoint managed to seize power. They changed their name to the
Communist Party, and sent their ideals to all European socialist parties. They then
nationalized all public property as well as putting factories and railroads under
government control. Stalin continued leading by the communist philosophies, and
extended the growth of the the USSR. This example of Communism has been
followed in many countries since then, including China.
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Marxist views on law
Marxists believe that law is a feature of pre-communist societies and that it
will disappear in a communist society. They also believe that law is unnecessary for
human civilization.
a. Law in communist states –
In communist states, law was subordinate to the Communist Party.
For example, in the Soviet Union, the court system was designed to
ensure party control over judicial decisions.
b. Absence of a legal tradition –
In the Soviet Union and China, there was a weak or nonexistent legal
tradition. China's legal system was primarily oriented toward
maintaining order under state dominance.
c. Long-lasting effects Communism has had long-lasting effects on preferences, trust, views
towards immigration, and gender norms.
The effects are the largest for cohorts that lived the longest under
communism. This provides evidence that more prolonged exposure to the features
of socialism—including indoctrination and repression—collectively lowers the
appreciation of freedom of speech values. Our results are robust to a battery of
sensitivity checks and provide suggestive evidence pointing to indoctrination as a
mechanism behind our findings. As such, our paper contributes to the scarce body
of literature on the economics of free speech, suggesting that freedom of speech may
be a part of informal institutions and slow-changing cultural values.
Exploiting the natural experiment of German separation and later
reunification, we show that living under communism has had lasting effects on free
speech opinions, and the convergence process has been slow. East Germans are still
less likely to consider freedom of speech a key government priority than West
Germans.
Communism has had different effects on gender norms in different countries,
but in general, it aimed to promote gender equality and women's rights:
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a. Soviet Union - The Bolsheviks emphasized gender equality as a
central goal, and the USSR established legal equality for women in the
1920s. This included equal pay, full citizenship, and the right to
divorce.
b. China - The Communist Party in China committed to emancipating
women and restructuring gender relationships. The party used
persuasive communication, such as radio, to create "new men" with
new values.
c. Eastern Europe - Communist regimes opened up opportunities for
women in activism, politics, and paid employment. However, they
also perpetuated pre-existing gender relations by marginalizing
certain sectors.
In general, communist regimes treated people equally in the eyes of the
government, regardless of education or financial standing. However, some
say that communist societies still showed high levels of social stratification
and inequality.
3. RABBINIC LAW
Rabbinic law is a set of legal discussions and rulings that are part of classical
rabbinic literature. It covers a wide range of topics, including civil, criminal, ritual,
and marital law. Rabbinic law is characterized by its detail, systematization, and
preoccupation with legal matters.
Characteristics of Rabbinic Law
• Sources - Rabbinic law is based on rabbinic biblical exegesis, custom and
tradition, rabbinic legislation, and logical reasoning.
•
Categories - Rabbinic law is divided into three general categories: Gezeirah,
Takkanah, and Minhag. Gezeirah laws are created to prevent people from
unintentionally breaking Torah law, Takkanah laws are created for the
public good, and Minhag laws are long-standing customs.
•
Purpose - Rabbinic law was created to add restrictions on top of the Bible to
keep people from breaking biblical law.
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•
Approach - Rabbinic law is case-based and often uses analogy in legal
reasoning.
•
Family law - Rabbinic law introduced the ketubba, a marriage contract that
outlines the obligations of the husband and wife. Rabbinic law also obligated
sons to support their widowed and unmarried sisters.
•
Financial law - Rabbinic law developed laws around contracts,
partnerships, and legal arrangements to work around the biblical
prohibition on usury.
Rabbinic law is different from state law and has rarely had the political
power to enforce its rules.
4. LAW OFMESOPOTAMIA OR ANCIENT NEAR EAST
Mesopotamian law influenced Rabbinic law and may have shaped ancient
Greek and Roman law.
The laws of Mesopotamia include the Code of Hammurabi, which is one of
the oldest and most complete written legal codes in the world:
a. Code of Hammurabi
Written by the sixth king of Babylon, Hammurabi, around 1754
BCE, this code is made up of 282 laws that covered topics such as trade,
slavery, theft, and divorce. The code is known for its "an eye for an
eye, a tooth for a tooth" form of punishment, also known as lex talionis.
Other punishments included:
o If a son hit his father, his hands were hewn off.
o If a son and mother were caught committing incest, they were
burned to death.
o If a pair of lovers conspired to murder their spouses, both were
impaled.
o For crimes that could not be proven, the accused was put
through a "trial by ordeal".
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Lex talionis:
The law of retribution, or "an eye for an eye". For example, if a man
broke another man's bone, his own bone would be broken.
Harsh punishments:
The code included severe punishments, such as removing the
guilty party's tongue, hands, breasts, eye, or ear.
Innocent until proven guilty:
The code was one of the earliest examples of this principle.
Different standards of justice:
The code outlined different standards of justice for the three classes
of Babylonian society: the propertied class, freedmen, and slaves.
Divine origin:
Hammurabi claimed that he received his laws from the gods, and
had an image of the god of justice, Shamash, engraved at the top of
the stele.
Written on stone and clay tablets:
The code was written on stone stele and clay tablets.
Discovered in 1901:
The code was discovered in 1901 at the ancient site of Susa in
Khuzestan.
b. Code of Ur-Nammu
o If a man committed murder, he must be killed.
o If a man committed robbery, he would be killed.
o If a man deflowered a virgin wife of a young man, they shall
kill that male.
c. The Code of Lipit-Ishtar of Isin
d. The Laws of Eshnunna
5. BUDDHISM
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Buddhism is a spiritual tradition that focuses on personal spiritual
development and the attainment of a deep insight into the true nature of life. There
are 376 million followers worldwide.
Buddhists seek to reach a state of nirvana, following the path of the Buddha,
Siddhartha Gautama, who went on a quest for Enlightenment around the sixth
century BC.
The basic doctrines of early Buddhism include the "four noble truths":
existence is suffering (dukhka); suffering has a cause, namely craving and
attachment (trishna); there is a cessation of suffering, which is nirvana; and there is
a path to the cessation of suffering.
Theravāda Buddhism codifies ethical behavior in the form of moral precepts.
o Refrain from killing or injuring living creatures.
o Refrain from taking what is not given.
o Refrain from committing sexual misconduct.
o Refrain from ‘wrong speech’, such as lying and gossiping.
o Refrain from using intoxicants that cloud the mind, such as alcohol or
non-prescription mind-affecting drugs.
Buddhism and Human Rights
The doctrine of ‘ahimsa’ in Buddhism elucidates the view that every
individual respects the inherent dignity of their own life, furthering love and
protection to others in a selfless manner, and does not deserve the suffering which
is extended to others.
It is argued that there are non-Western ethical traditions that can espouse
human rights, such as Theravāda Buddhism. Human rights can be deduced from
Buddhist moral teachings by assessing the association between the Buddhist
precepts and social justice as seen in the Theravāda tradition. Concerns regarding
‘self-fulfilment, respect for others and the quest to contribute to others’ have been
found in Confucian, Hindu and Buddhist traditions, hence implying correlative
duties for a just and peaceful society. Hesanmi expounded the reasonability of
affirming the mutual entailment of rights and duties rather than erecting a false
dichotomy between the two.
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Ethical Principles of Buddhism
a. Karmic Debt
A common concept that underpins ethical decision-making is the idea of
karmic debt (related to the concept of karma). This refers to the idea that beings
cannot avoid the negative results of their unskillful or unwholesome actions. As
such, all bad deeds or actions must be eventually paid for.
b. Non-violence (Avihiṃsā)
In Buddhism, avihiṃsā (usually translated as non-injury, non-killing or nonviolence) refers to the concept of not causing harm to other living things. Adherence
to the principle of non-violence is thought to generate positive kamma, while
defying the principle is believed to bring about negative kamma. The concept of
avihiṃsā forms the basis of vegetarianism for many Buddhists as well as the
tolerance towards all forms of life.
Sexuality in Buddhism
There are no strict sexual ethical guidelines presented in Buddhism for lay
Buddhists. Buddhists are generally open to the use of birth control. However, other
topics related to family planning such as abortion or reproductive technologies are
usually influenced by factors other than religion (such as culture, family
perceptions, financial security, etc.).
Monogamy is the predominant model of relationships. In some cases, there
is local variation in marriage and dating customs in the Buddhist world. Positions
on homosexuality vary; some Buddhists are conservative on the matter, while others
may be tolerant or supportive.
Sexual Misconduct in Buddhism
Avoidance of sexual misconduct is one of the main moral precepts expected
to be observed by all Buddhists. ‘Sexual misconduct’ for lay Buddhists generally
refers to sexual offences such as non-consensual sexual acts, sexual activity with
minors or those protected by the law, and adultery. It can also broadly refer to any
irresponsible use of sexuality (such as promiscuity, an overindulgence of sex or
sexual addiction). In the context of monasticism in Theravāda Buddhism, monks
and nuns are expected to practise celibacy.
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Marriage in Buddhism
Though Buddhism recognizes the importance of marriage as a social
institution, marriage is usually not understood as a religious concern. Rather,
marriage is seen as a matter of secular society in which the partners assume
obligations to each other.
Divorce in Buddhism
Generally, Buddhism has no religious objection to divorce. Social and
cultural influences play a major role in determining the level of acceptance when it
comes to divorce and remarriage.
CONCLUSION
The very point of eastern philosophy in contemporary times, especially in the
rule of law and legal systems is the incorporation of holistic perspectives and the
interconnectedness of all things. While western philosophy focuses mainly on
scientific findings, eastern philosophy puts our feet to the ground that in the greater
scheme of things, everything’s connected. After all, we are, as ourselves, are
collection of experiences.
Eastern philosophy greatly affected the contemporary issues concerning the
execution of justice and the law at present. Eastern philosophies often prioritize
experiential knowledge and intuition over purely rational thought. This has led to
different approaches in education, psychology, and even science, encouraging a
more integrative understanding of knowledge.
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