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Law is a rule and measure of acts, whereby man is induced to act or is restrained
from acting: for lex (law) is derived from ligare (to bind) because it binds one act.
Since law is a rule and measure, it can be in a person in two ways: in one way, as
in him that rules and measures: in another way as in that which is ruled and
- St. Thomas Aquinas, The Summa Theologica
Law is a science of principles by which the civil society is regulated and held
together, by which right is enforced, and wrong is detected and punished.
- Justice Bradley, United States Supreme Court
Law is a rule of conduct, just, obligatory promulgated by legitimate authority and
of common observance and benefit.
- Sanchez Roman
A rule laid down for the guidance of an intelligent being by an intelligent being
having power over him.
- John Austin, Province of Jurisprudence Determined
An embodiment of reason, whether in the individual or the community.
- Plato
Lawexists if it is externally guaranteed by the probability of coercion (physical
or psychological) to bring about conformity or avenge violation, and is applied by
a staff of people holding themselves specially ready for that purpose.
- Max Weber
Law is a universally accepted rule for the guidance of human action, prescribed
and enforced by a sovereign political authority.
- Pascual, Crisolito, Natural Law Revisited (1955)
Law is a system of norms of conduct which, in practice, is recognized by the
judicial authority in a given jurisdiction as binding on all persons within such
- Zafra, The Status of the Philippines Under the Commonwealth (1937)
In its jural and generic sense refers to the whole body or system of law.
In its jural and concrete sense, it means a rule of conduct formulated and made
obligatory by legitimate powers of the state.
It includes statutes enacted by the legislature, presidential decrees and executive
orders issued by the President in the exercise of his legislative power, other
presidential issuances in the exercise of his ordinance power, rulings of the
Supreme Court construing the law, rules and regulations promulgated by
administrative or executive officers pursuant to a delegated power, and
ordinances passed by sanggunians of local government units.
- Ruben Agpalo, Statutory Construction (2009)
Law includes the whole system of rules on human conduct, subordinate to the
organic law, of which the courts take cognizance. It covers both substantive and
adjective law, both written and unwritten law, the subjects of all systems included
in the usual classifications.
- Philippine Law Journal (February 1987)
All that portion of the law, observed and administered in the courts, which has not
been enacted or promulgated in tile form of a statute or ordinance, including the
unenacted portions of the common law, general and particular customs having
the force of law, and the rules, principles, and maxims established by judicial
precedents or the successive like decisions of the courts
(Blacks Law Dictionary)
- The common law was an oral tradition derived from general customs, principles,
and rules handed down from generation to generation and was eventually
reflected in the reports of the decisions of courts.
- Refer to the determination by a court of competent jurisdiction on matters
submitted to it.
- The doctrine of precedent is closely related to three other concepts
represented by the Latin terms stare decisis, ratio decidendi, and obiter
Under the English doctrine of stare decisis, each decision is a binding authority
which Parliament alone may change. Stare decisis, literally to stand on what has
been decided, is the principle that the decision of a court is binding authority on
the court that issued the decision and on lower courts in the same jurisdiction for
the disposition of factually similar controversies
The ratio decidendi is the holding or the principle of law on which the case was
decided. It is the ratio decidendi that sets the precedent and is binding on courts
in the future.
The ratio decidendi, or rule of the case, must be considered in conjunction with
the facts of the case.
- Language in an opinion that is not necessary to the decision. Dictum comes
from the Latin verb decire, to say, and refer to what is said by the way, that
which is not essential to the holding of the court. Although language categorized
as dictum is not binding on future courts, it might be persuasive. Yesterday's
dictum may develop into today's doctrine.
Laws deriving their force from express legislative enactment, as
contradistinguished from unwritten, or common, law.
- in its broadest sense refers to that body of rules and principles in
accordance with which the powers of sovereignty are regularly exercised
- the fundamental and organic law of a nation or state that establishes the
institutions and apparatus of government, defines the scope of
governmental sovereign powers, and guarantees individual civil rights
and civil liberties.
(Blacks Law Dictionary)
Constitutions of the Republic of the Philippines
a. Malolos Constitution
b. 1935 Constitution
c. 1973 Constitution
d. 1987 Constitution
- Legislation from the peoples representatives
- Provide the details of the subject of which it treat
- Intended primarily to meet existing conditions only
- Conforms to Constitution
- Acts of the legislature which are intended to provide rules and regulations
as a supplement to the apparently lacking provisions absent in the
Mga Batas Pambansa
Commonwealth Acts
Presidential Decrees
Republic Acts
- An agreement, league or contract between two or more independent
states, nations or sovereigns, formally signed by commissioners properly
authorized, and solemnly ratified by the several sovereigns or the
supreme power of each state.
(Blacks Law Dictionary)
RP-US Mutual Defense Treaty
Visiting Forces Agreement (US Forces Visiting RP)
Visiting Forces Agreement (RP Personnel Visiting US)
Treaty of General Relations between the Republic of the Philippines and the
United States of America
Extradition Treaty between the Republic of the Philippines and the Republic of
Treaty of Paris, which contains the treaty of peace between the United States of
America and Spain ceding Philippines to the United States
- Mutual engagement between two persons, possessing all the subjective
requisites of a contract, but which did not give rise to an action, nor
receive the sanction of the law, as bearing an obligation, until the
objective requisite of a solemn ceremonial was supplied.
(Roman Law)
- Informal agreement of the parties, which formed the basis of a contract,
and which became a contract when the external formalities were
Essence of Natural Law
In English, the natural law is frequently employed as equivalent to
the laws of nature, meaning the order which governs the activities of the
material universe. Among the Roman jurists, natural law designated
those instincts and emotions common to man and the lower animals, such as
the instinct of self-preservation and love of offspring. In its
strictly ethical application, the natural law is the rule of conduct which is
prescribed to us by the Creator in the constitution of the nature with which He has
endowed us.
The norm of conduct is not some particular element or aspect of
our nature. The standard is our whole human nature with its manifold
relationships, considered as a creature destined to a special end. Actions are
wrong if, though subserving the satisfaction of some particular need or tendency,
they are at the same time incompatible with that rational harmonious
subordination of the lower to the higher which reason should maintain among our
conflicting tendencies and desires. There is a double reason for calling this law of
conduct natural: 1) because it is set up concretely in our very nature itself and 2)
because it is manifested to us by the purely natural medium of reason.
In both respects, it is distinguished from the Divine positive law, which
contains precepts not arising from the nature of things as God has constituted
them by the creative act, but from the arbitrary will of God. We learn this law not
through the unaided operation of reason, but through the light
of supernatural revelation.
Natural Law Theory
The theory of natural law dates back to the time of the Greeks and great
thinkers like Plato and Aristotle. It is defined as the law which states that human
are inborn with certain laws and preordained into them which let them determine
what is right and wrong.

According to Jenkins, The natural law theory begins with theories about
the nature and purpose of the world and moves on to ask about the purpose of
every action or object. The right thing to do is that which fulfils the natural

1 http://www.dreamessays.com/customessays/Religion/11192.htm
2 http://www.studymode.com/essays/Natural-Law-Theory-505486.html
Religious philosophers adapted the theory in order to fit the Christian
religion. On accounts, the classical thinkers were said to be the first to define the
natural law. In the sixth century BC, Heraclitus specified one of the components
by stating that, for all human laws are nourished by one, the divine which
means that a divine power determined a logic and gave to all humans.
Aristotle elaborated the meaning and said that natural law was one that
had the same validity for every one and situation.
Cicero, on the other hand, tries to determine what the actual law
encompassed and came up with the theory of stoicism. Stoicism is an
interpretation of the natural law which states that every, single person is a part of
the universe that was created and is ruled by a divine power rationally.
Realizing that it was compatible to their religion, the great Christian
philosophers came upon this theory. One of them is St. Thomas Aquinas, who
stated in his Summa Theologiae that God gave man the ability to determine the
difference of right from wrong by the Eternal Law. This law guides all human
beings a tendency to do what was proper or natural. He stressed that by doing
what was right, each being was using divine reason. According to him, the natural
law was the participation in Eternal Law which is the doing of what was right. In
both Christian and secular views, the natural law state that all humans act or
should act in certain ways and abide by certain rules, and that these were
predestined by a divine power.
Contemporary Profile of Natural Law
a) Real. The element of realism in natural law is a matter of doing good. In
other words, moral life is not simply doing whatever an agent wants to do
3 http://www.dreamessays.com/customessays/Religion/11192.htm
nor it is constituted by mere obedience of positive law. It is in the on-
going process of reflection on the total complexity of human reality in all
relationships that the moral community can discover what is morally right
and wrong.
b) Experimental. It is but logical to say that we can know morality by the
experience if morality is based on reality. Through our experience we can
discover what helps or hinders human well-being; this vital experience
helps in directing the course of moral judgment.
c) Consequential. Although consequences on their own do not tell what is
good or malicious, they constitute an important part of moral meaning.
Morality in its totality includes more than consequences. However, the
specific contribution of consequences is in the accumulation of human
d) Historical. The historical component of natural law brings moral position
which makes for tentative historical consciousness and provisional moral
e) Proportional. The good we do comes mixed with bad. IN this regard, our
moral efforts must be directed to trying to achieve the greatest portion of
good against evil.
f) Personal. The shift from nature to person acknowledges not only what all
persons commonly possess, but also their differences as individuals with
their distinct origin, history, cultural environment, and personal calling
form the Lord.
Overlap Thesis
Some norms are authoritative in virtue of their moral content, even when there is
no convention that makes moral merit a criterion of legal validity. The idea that
the concepts of law and morality intersect in some way is called the Overlap
The strongest form of the Overlap Thesis underlies the classical
naturalism of Aquinas and Blackstone:
As Blackstone describes the thesis, "This law of nature, being co-eval with
mankind and dictated by God himself, is of course superior in obligation to any
other. It is binding over all the globe, in all countries, and at all times: no human
laws are of any validity, if contrary to this; and such of them as are valid derive all
their force, and all their authority, mediately or immediately, from this original"
(1979, p. 41).
In this passage, Blackstone articulates the two claims that constitute the
theoretical core of classical naturalism: 1) there can be no legally valid standards
that conflict with the natural law; and 2) all valid laws derive what force and
authority they have from the natural law. On this view, to paraphrase Augustine,
an unjust law is no law at all.
Classical Natural Law Theory
All forms of natural law theory subscribe to the Overlap Thesis, which asserts that
there is some kind of non-conventional relation between law and morality.
According to this view, then, the notion of law cannot be fully articulated without
some reference to moral notions.
Here it is worth noting that Aquinas holds a natural law theory of morality: what is
good and evil, according to Aquinas, is derived from the rational nature of human
beings. Good and evil are thus both objective and universal.
Here it is worth noting that Aquinas holds a natural law theory of morality: what is
good and evil, according to Aquinas, is derived from the rational nature of human
beings. Good and evil are thus both objective and universal.
Arguments for Natural Law
Inasmuch as conformity with natural law is a necessary condition for legal
validity, all valid law is, by definition, morally just. Thus, on this line of reasoning,
the legal validity of a norm necessarily entails its moral justice. Given that the
norm being enforced by law is unjust, it follows, according to conceptual
naturalism, that it is not legally valid. Thus, the state commits wrong by enforcing
that norm against private citizens. The project motivating conceptual
jurisprudence, then, is to articulate the concept of law in a way that accounts for
these pre-existing social practices.
Case Study: SophoclesAntigone and the History of the Concept of Natural Law
Creon, as head of state and lawgiver in Thebes, believes in obedience to man-
made laws. But in defying Creons command that no one bury Polynices, Antigone
appeals to a different set of guidelineswhat is often called natural law.
Whether its source is in nature or in divine order, natural law states that there are
standards for right and wrong that are more fundamental and universal than the
laws of any particular society.
Antigone believes that the gods have commanded people to give the dead a
proper burial. She also believes she has a greater loyalty to her brother in
performing his burial rites than she does to the law of the city of Thebes that bans
her from doing so. The wishes of the gods and her sense of duty to her brother
are both examples of natural law. To Antigone, these outweigh any human laws. In
Antigone, Sophocles explores this tension and seems to suggestthrough
Antigones martyrdom, the peoples sympathy, and Creons downfallthat the
laws of the state should not contradict natural laws.
Strengths of Natural Law Theory
One of the strengths of the natural law theory is its applicability to any
situation. In this theory, a person doesnt need to look at specific circumstance or
situation to decide whether an act is morally right or wrong. This reiterates that
there is a certainty of the application of such theory in the society. If applied in
every situation, this will bring a level of security to society for it creates a set of
base of morals which would be followed by everyone. As a result, a peaceful and
harmonious society will be reached. Another strength is that, it is a complete
theory within itself based on the belief of Aquinas, in that it contains everything a
person needs to deal with character, motive and actions, and gives a day to day
system for living a complete moral life, of which there is the benefit of fulfilling
the purpose of which humans are designed to be on the Earth. Another is its
flexibility because its primary precepts are unchanging, but the secondary
precepts can change dependant on any culture, circumstance or perspective, so
that it can be literally applied anywhere. Furthermore, the natural law theory has
no definition of slight or partial acts that may be considered wrong because in this
theory, there are only absolutes.

It is not what a lawyer tells me I may do; but what humanity, reason, and justice
tell me I ought to do. Edmund Bu
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Legal Positivism
The legal philosophy which argues that any and all laws are nothing more and
nothing less than simply the expression of the will of whatever authority created
It is a view that law is a social construction.
legal rules or laws are valid not because they are rooted in moral or natural law,
but because they are enacted by legitimate authority and are accepted by the
society as such
History of Legal Positivism & its Proponents
- Christians
- Greeks
- Romans
- Thomas Hobbes
- John Austin
Approaches to Legal Positivism
John Austin
The existence of the 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 another enquiry.
Separation Thesis
- According to Hart, a contemporary legal positivist, separation thesis is the
essence of legal positivism.
- The law and morality are conceptually distinct.
- The law must be entirely free of moral notions.
Soft Positivism
- Incorporationism
- Possible for a societys rule of recognition to incorporate moral constraints
on the content of law
Hard Positivism
- Exclusive Positivism
- Denies that a legal system can incorporate moral constraints on legal
Essential Attributes of the Law
1. Conscious Formulation - distinguishes a rule or norm of positive law from
a rule or norm of morality.
2. Generality - should not be in the particular form for that would determine
only specific acts, persons, or properties
3. Authoritativeness - it involves or entails with it a duty to obey
According to John Austin that law is objective, authoritative, commanding, and
empirical. It is the expression of the will of the state. It is not made by God but by
a superior sovereign. Law is the conscious will and command of the sovereign
imposed on the subjects, who are liable to suffer penalties in case of violation
thereof (authoritative enforcement system).
The three basic tenets of Austin's positivism are:
- laws are commands issued by the uncommanded commander, i.e. the
- such commands are enforced by sanctions; and
- a sovereign is one who is obeyed by the majority.
To Hans Kelsen, law is created by acts of men, not by God. Law is a positive norm
of conduct, hence, it is uniform for all. Coercion and sanctions enforce law. Law is
objective and precise, not subjective.
Kelsens Pure Theory of Law
- Hans Kelsen (1881-1973)
- Austrian jurist and philosopher
- Furthered the concept of positive law
- Focus on the law itself
- Law as separate from extraneous factors
Kelsens Pure Theory of Law
- Salient features:
o Structure
o Norm
- Structure - a structure of norms has different levels, where norms on a
higher level authorize the creation of norms on a lower level
- Norms - an act of will directed at the behavior of another
- Norms are products of deliberate human action, as opposed to moral
norms which is by God
- Derive their validity from the fact that it has been accepted by some
sufficient minimum number of people in the community
- Essentially - Validity of a law can only be explained by reference to the
validity of another and higher legal norm, and ultimately to the
fundamental authority of the original Constitution of a state
Critique of Legal Positivism
The most influential criticisms of legal positivism all flow, in one way or another,
from the suspicion that it fails to give morality its due. Accordingly, positivism's
critics maintain that the most important features of law are not to be found in its
source-based character, but in law's capacity to advance the common good, to
secure human rights, or to govern with integrity.
Lon Fuller
- Lon Luvois Fuller (1902 April 8, 1978) was a noted legal philosopher,
who wrote The Morality of Law in 1964, discussing the connection
between law and morality. Fuller was professor of Law at Harvard
University for many years, and is noted in American law for his
contributions to the law of contracts. His debate with H.L.A. Hart in the
Harvard Law Review (Vol. 71) was of significant importance for framing
the modern conflict between legal positivism and natural law.
- Fuller has two main points First (1), He believes that whatever virtues
inhere in or follow from clear, consistent, prospective, and open practices
can be found not only in law but in all other social practices with those
features, including custom and positive morality, and the second (2), is
that if law is a matter of fact, then we are without an explanation of the
duty to obey.
Ronald Dworkin
- Ronald Dworkin 1931, American legal philosopher. b. Worcester, Mass. A
professor at Yale University Law School (196269) and then professor of
philosophy and jurisprudence in a joint appointment with New York Univ.
and Oxford (1969), Dworkin's work such as Taking Rights Seriously
(1977) rejects the positivist conceptions of law prevalent among legal
realists and posits that rights are premised upon a comprehensive set of
moral precepts that make individual rights comprehensible. A frequent
commentator on constitutional questions, Dworkin criticized as
unworkable Robert Bork's notion of basing contemporary jurisprudence on
the "original intent" of the authors of the constitution.
- Dworkin denies that there can be any general theory of the existence and
content of law; he denies that local theories of particular legal systems
can identify law without recourse to its merits, and he rejects the whole
institutional focus of positivism. A theory of law is for Dworkin a theory of
how cases ought to be decided and it begins, not with an account of
political organization, but with an abstract ideal regulating the conditions
under which governments may use coercive force over their subjects.
Positive Law
- man-made
- legal
- Enacted by duly authorized legislature
- artificial order
- no necessary connection with natural law or justice
Natural Law
- Not man-made, inherent
- universal principles , rules and laws
- pre-existing law of nature
- natural order or a moral or ethical code
Formalism is a concept that relies on the application of legal rules on the facts of
a case. The Formalist theory is also referred to as the black-and-white approach.
Law is viewed as a rational and logical system. Formalism views law as a science.
Legal formalists posit that judges should be constrained in their interpretation of
legal texts. It is a theory which sets that law is a set of rules and principles
independent of political and social institutions. In this theory, once the laws are
produced, judges apply them to the facts of the case without regard to social
interest and public policy. In the Legal Theory Lexicon, Lawrence Solum described
Formalism as: 1) The law consists of rules, 2) Legal rules can be meaningful, 3)
Legal rules can be applied to particular facts, 4) Some actions accord with
meaningful legal rules; other actions do not.
In Legal Formalism, the law is treated like math and science. Scientists identify
the axiom, applies it to the given data and systematically reach a demonstrable
theorem. In the application of Legal Formalism, a judge identifies the legal
principle and applies it to the facts of the case and reaches a decision based on
the legal principle applied to the facts.
Legal Formalism can also be described as a rule-and-principle approach of
decision making. Judges base their decision on what the law says and not what
the law should be. The plain-meaning of the law should be construed in their
ordinary meaning.
Proponents of Legal Formalism
Justice Antonin Scalia, Associate Justice of the United States Supreme Court is
known for his formalist views. He is also known as the intellectual anchor of the
Courts conservative wing. He subscribes to the judicial philosophy of
textualism or original meaning in interpreting federal statutes and the United
States Constitution. He is against speculation about the intent of the
lawmakers/drafters and view that the Court must interpret the language
Scalias view is rooted in the belief that Legal Formalism provides certainty
stability, and predictability of law.
Frederick Schauer, professor of law at the University of Michigan advocates that
formalism should be viewed not in terms of whether it is a good or a bad thing but
rather in terms of how it would be helpful in restricting the power of decision
makers in the decision making process.
Christopher Columbus Langdell, a former Harvard Law Dean, regarded as the
most important figure in shaping the American Legal Education, views the law as
a science of logic. Langdell held that judges make decisions by deductively
inferring their ruling from general principles.
Langdell treated jurisprudence as a deductive science: by identifying the legal
principles underlying individual cases/ or those embodied in the reasoning and
decisions of multiple cases and classify, arrange those principles, thus revealing
them to be a part of the system. Langdells formalism posits that judges make
decisions by deductively inferring their rulings from more general principles.
Criticisms of the Formalist Approach
The realist movement attacks the formalist view of the law as a science.
According to realists, the life of the law has not been logic, it has been
experience. Realists believe that the law is not a scientific enterprise where the
determination of the outcome is a result of deductive reasoning. The judges
should balance the interest of the parties by drawing an arbitrary line on one side
of the dispute in accordance with the political, economic proclivities of the judge.
Oliver Wendell Holmes, an Associate Justice of the United States Supreme Court,
was a known critic of Formalism. Holmes suggested that law is not deduced from
formal logic but rather emerge from the active process of human-self
government. He stated that a body of law is more rational and more civilized
when every rule it contains is referred articulately and definitely to an end which
it serves, and when the grounds for desiring that end are stated or are ready to
be stated in word.
A newly-signed law that gives the country a true legal tool to combat
It lays down a comprehensive legal framework for the detection,
investigation, and suppression of cybercrimes.
Includes crimes with the use of computers, laptops, internets,
smartphones, phone calls and SMS.
House of Representatives HB 5808
By Tarclac Representative, Susan A. Yap
No. of votes
: YES- 211, NO- 0, ABSTAIN- 0
Senate SB 2796
By Sen. Edgardo Angara
Controversial libel provision inserted during period of individual
No. of votes
: - YES- 13, NO-1, ABSTAIN- 0
Bills were consolidated in the Bicameral Conference Committee.
Approved and signed into law by the President and became R.A. 10175 on
Sept. 12, 2012
Offenses against confidentiality, integrity and availability of computer
data and systems.
Illegal access
Illegal interception
Data Interference
System Interference
Misuse of Devices
Computer-related Offenses

Computer-related Forgery
Computer-related Fraud
Computer-related Identity Theft
Content-related Offenses
Child Pornography
Unsolicited Commercial Communication
Other Offenses
Aiding or Abetting in the Commission of Cybercrime
Attempt in the Commission of Cybercrime
DOJ Office of Cybercrime
R.A. 10175 created Office of Cybercrime to be the central
authority in implementing the law. (Sec. 23)
May takedown a site when there is a prima facie evidence that it
violated the law. (Sec.19)
PNP and NBI Main enforcers of the law
May collect traffic data without court warrant. (Sec.12)
May destroy seized computer data and system. (Sec. 15 and 16)
May compel you to disclose computer data. (i.e. emails, chat
messages and other online activities) (Sec. 14)
Cybercrime Investigation and Coordinating Center
Inter-agency body that will secure a national cybersecurity plan.
Depending on the acts or offenses committed, a person guilty shall be
with imprisonment of arresto mayor to reclusion temporal OR 100,000
pesos to 1,000,000 pesos for natural persons and up to 10,000,00 pesos
for juridical persons.
Naturally, application of the law is within the Philippines.
However, the law also expanded the application of the law beyond the
Philippines. As long as:
The perpetrator is a Filipino
The effects of cybercrime were felt within the country
Any of the elements were committed in the country or
Done using equipment located in the country.
RTC via newly created special cybercrime courts.
Anti-Cybercrime Law | RA 10175
- GR No.s 203299 (Biraogo vs. NBI and PNP); 203306 (ALAB NG
MAMAMAIIAYAG [ALAM], et al. vs. Office of the President, Senate of the Phil. and
House of Rep.); 203335 (Disini, et al. vs. Sec. of Justice, et al.); 203359 (Sen.
Teofisto Guingona vs. Exec. Sec., et al.); 203378 (Alexander Adonis, et al. vs.
Exec. Sec., et al.); 203391 (Hon. Raymond Palatino, et al. vs. Hon. Paquito Ochoa
and Hon. Leila De Lima); 203407 (Bagong Alyansang Makabayan Secretary
Chairperson of Concerned Artists of the Philippines, et al. vs. Pres. Benigno
Simeon Aquino III, et al.); 203440 (MELENCIO S. STA. MARIA, et al. vs. HON.
and RYAN D. ANDRES vs. Secretary of Interior and Local Government, et al.);
203469 (ANTHONY IAN M. CRUZ, et al. vs. Pres. Benegno Simeon Aquino III, et
al.); 203501 (PHILIPPINE BAR ASSOCIATION, INC. vs. Pres. Benegno Simeon
Aquino III, et al.); 203509 (Bayan Muna Representative Neri J. COLMENARES vs.
ALLIANCE, et al. vs. Exec. Sec., et al.)
Date of Issuance: October 9, 2012
Effectivity: effective immediately and for a period of 120 days.
SET the cases for ORAL ARGUMENTS on January 15, 2013, Tuesday,
at 2:00 p.m. at the New Session Hall, New Supreme Court Building,
Padre Faura St., Ermita, Manila; and
ISSUE a TEMPORARY RESTRAINING ORDER, effective immediately and
for a period of one hundred twenty (120) days, enjoining the
respondents from implementing and/or enforcing Republic Act No.
10175 (Cybercrime Prevention Act of 2012).
Effects of the Issuance of TRO
Prevented the implementation of the law.
Created conflicting views
- good or bad news?
- to amend or not to amend the law?
There is still doubt as to the purpose of SC in issuing the TRO, but it is
certain that one of the contributory factors is that the issue presents
transcendental public importance.
The TRO does not, in any way, provide a judgment on the merits of RA
RA 10175
1. VAGUE: No limitations against liability
2. UNFAIR: Cyber-libel gets graver punishment than libel in traditional media
3. OPPRESSIVE: Infringes upon the Constitutional right against double
- Sen. TG Guingona
1. CYBERSEX - The willful engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of sexual organs or
sexual activity, with the aid of a computer system, for favor or
2. LIBEL - The unlawful or prohibited acts of libel as defined in Article 355 of
the Revised Penal Code, as amended, committed through a computer
system or any other similar means which may be devised in the future.
Art. 353. Definition of libel. A libel is public and malicious imputation of
a crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead. (includes those posted on the Internet)
Four Elements of Libel
1. Defamatory Allegation
2. Publication
3. Element of Identifiability
4. Malice
Under Article 354 of the Revised Penal Code:
Every defamatory imputation is presumed to be malicious, even if it be
true, if no good intention and justifiable motive for making it is shown,
except in the following cases:
(1) A private communication made by any person to another in the
performance of any legal, moral or social duty; and (2) A fair and true report,
made in good faith, without any comments or remarks/
Aiding or Abetting in the Commission of Cybercrime - Any person who
willfully abets or aids in the commission of any of the offenses
enumerated in this Act shall be held liable.
Attempt in the Commission of Cybercrime - Any person who willfully
attempts to commit any of the offenses enumerated in R.A. 10175 shall
be held liable.
(Section 5 - Other offenses under R.A. 10175)
No law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances. - Section 4, Article III,
of the 1987 Constitution
All crimes defined and penalized by the Revised Penal Code, as amended,
and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the
relevant provisions of this Act: Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided for by the Revised Penal
Code, as amended, and special laws, as the case may be.
(Section 6, RA 10175)
In a case of libel, for example, the penalty is Prision Coreccional. Under
the Act, the maximum penalty shot up to 12 years (Prision Mayor) or a
fine of Php 200,000 or both.
This Act shall be without prejudice to any liability for violation of any
provision of the Revised Penal Code, as amended, or special laws.
- (Section 7, RA 10175)
Since the acts and the crime of online libel are the same as that defined
in the Revised Penal Code, it violates the rule against double jeopardy
which seeks to protect citizens against being penalized twice for the same
By imposing increased penalties for ordinary crimes committed by,
through, or with the use of information and communications
technologies (ICTs), Congress was unfairly segregating users of ICTs and
treating them more harshly.
SECTION 12.Real-Time Collection of Traffic Data. Law enforcement authorities,
with due cause, shall be authorized to collect or record by technical or electronic
means traffic data in real-time associated with specified communications
transmitted by means of a computer system.
Traffic data refer only to the communication's origin, destination, route,
time, date, size, duration, or type of underlying service, but not content, nor
All other data to be collected or seized or disclosed will require a court
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or
granted upon written application and the examination under oath or affirmation of
the applicant and the witnesses he may produce and the showing: (1) that there
are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be
committed; (2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to the solution
of, or to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.
Contentions on SEC. 12
Infringes the
right to privacy (1987 Philippine Constitution, Art. III, Sec. 3.(1))
right against unreasonable searches and seizures (1987 Philippine
Constitution, Art. III, Sec. 2.)
as it would permit the collection without the intervention of a judge or
any judicial participation.
Ople v. Torres (G.R. No. 127685, July 23, 1998)
State action that infringes the right to privacy must be justified
by some compelling state interest and that it is narrowly drawn.
State interest against cybercrime real-time collection of such data
without judicial participation
SECTION 19.Restricting or Blocking Access to Computer Data. When a
computer data is prima facie found to be in violation of the provisions of this Act,
the DOJ shall issue an order to restrict or block access to such computer data.
instructing internet service providers, such as duly enfranchised
telecommunication companies to block or restrict access to prima facie
data in violation of the Act
not available in the real-world libel even upon a judicial decision
Contentions on SEC. 19
Infringes the
right to due process (1987 Philippine Constitution, Art. III , Sec. 1.)
DOJ can strike down data, whether privately authored or
that of the organized press, without the benefit of any
right to freedom of expression (1987 Philippine Constitution, Art.
III , Sec. 4. )
data can include local or international content
action can be permanent
Title: Historical Thought in Legal Philosophy
Thesis Statement: Although regarded as a poor and slightly eccentric relation
among the schools of thought in legal philosophy,
the Historical Perspective
provides an insightful way of making and applying the law, especially to Philippine
legal context.
Objective: To briefly discuss the Historical School of Thought in Legal Philosophy,
and its relevance to Philippine law and jurisprudence
I. What is Historical School? Who founded it? What were the events that
led to its conception?
A. German jurist and legal scholar Friedrich Karl von Savigny (1779-
1861) developed the Historical School.
In addition to Savigny, the historical school was influenced by
Johann Gottfried Herder (17441803) and the romantic notions of
folk culture, by the emphasis on tradition in the work of Edmund
Burke (17291797), by the stress on historical continuity in the
work of Gustav Hugo (17641844), and by the Hegelian
conception of Spirit. In Germany, the main proponents of
historical jurisprudence were G. F. Puchta, Karl Friedrich Eichhorn,
Rudolph von Sohm, and Otto von Gierke.
6 Robert E. Rodes, Jr, On the Historical School of Jursiprudence, (Notr Dame Law School,
2004) retrieved January 26, 2013 < http://ssrn.com/abstract=931650>
B. Savigny was prompted to develop this juristic thought in
response to a demand for an immediate codification of German
law in 1814 arising from the wave of German nationalism inspired
by the war of liberation against Napoleon which he was against.
C. The Historical School holds that the law, according to the classic
words of Savigny, has already attained a fixed character,
peculiar to the people, like their language, manners and
constitution [T]hese phenomena have no separate existence,
but the particular faculties and tendencies of an individual people,
inseparable united in nature, and only wearing a semblance of
distinct attributes to our view. That which binds them into one
whole is the common conviction of the people, the kindred
or what he later called as Volkgeist, literally the
spirit of the people.

Friedrich Karl von Savigny, of the Vocation of our Age for Legislation and Jurisprudence,
tr. Abraham Hayward (London: Littlewood, 1831) in Rodes, 2004.
Friedrich Karl von Savigny, System des Heutigen Romischen Rechts, vol. 1 (Berlin, Viet,
1840) in Rodes, 2004.
E. The Two Prime Reasons for The Evolution of Historical School:
1. It came as a reaction against natural law, which relied on
reason as the basis of law and believed that certain
principles of universal application can be rationally derived
without taking into consideration social, historical and other
2. It came as a reaction against analytical positivism which
constructed a soul-less barren sovereign-made-coercive law
devoid of moral and cultural values described as gun-men-
F. The basic premise of the German Historical School is that law is
not to be regarded as an arbitrary grouping of regulations laid
down by some authority. Rather, those regulations are to be
seen as the expression of the convictions of the people, in the
same manner as language, customs and practices are
expressions of the people. The law is grounded in a form of
popular consciousness called the Volksgeist.
Laws can stem from regulations by the authorities, but more
commonly they evolve in an organic manner over time without
interference from the authorities. The ever-changing practical
needs of the people play a very important role in this continual
organic development.
In the development of a legal system, is it the professional duty
of lawyers in the sense of the division of labor in society to
base their academic work on law on ascertaining the will of the
people. In this way, lawyers embody the popular will.
G. Its central idea was that a nation's customary law is its truly
living law and that the task of jurisprudence is to uncover this
law and describe in historical studies its social provenience. As
in other schools of thought, acceptance of this approach did not
necessarily mean agreement on its theoretical or practical
H. To followers of Savigny the identification of law with custom and
tradition and the Volksgeist, or genius peculiar to a nation or
folk, generally meant a rejection of rationalism and natural law;
Historical Perspective of Legal Philosophy
a rejection of the notion of law as the command of the state or
sovereign, and therefore a disparagement of legislation and
codification; and a denial of the possibility of universally valid
rights and duties and of the individual's possession of
nonderivable and inalienable rights. In positive terms, historical
jurisprudence identified law with the consciousness, or spirit, of
a specific people. Law is "found" by the jurist and not "made" by
the state or its organs. Law is a national or folk and not a
political phenomenon; it is a social and not an individual
production; like language, it cannot be abstracted from a
particular people and its genius; it is a historical necessity and
not an expression of will or reason, and therefore it cannot be
I. Prof. G. F. Puchta, author of the book Outlines of Jurisprudence
as the Science of Right - A Juristic Encyclopedia, published in
Germany in 1887, and a disciple of the historical school, speaks
of the "national or popular character", "common consciousness"
and "national mind or spirit of the people" as a basis of the
origin, growth and development of law and jurisprudence:
The Peoples are themselves to be regarded as different
individualities, dissimilar and unequal in nature and tendency.
This individuality forms what we call the national or popular
character. Hence the Rights of peoples are different; and the
peculiar characteristics of a national are exhibited in its System
of Right, just as in its Language and Customs.
All human Right presupposes a common Consciousness as its
source. A principle of Right becomes a fact by being recognized
as such in the common conviction of those to whom it is
applicable. Right is the common will of the persons or members
who are included in a sphere of Right. Through this common
consciousness of Right, as by common Language and a common
Religion, the members of a people are bound together in a
definite union. This union rests upon a certain relationship of
body and mind; its extends beyond the intimacy of the inner
family bond, and arises out of an actual division of the race of
mankind. The consciousness which permeates the members of a
people in common xxx constitutes, in a word, the national mind
or spirit of the people; and it is the source of human or natural
Right, and of the convictions of Right which stir and operate in
the minds of the individuals.
The consequence of this mode of origination induces a diversity
of Right among the various peoples.
The Conviction of the People, as reflected in the Consciousness
of its members, is the first of the modes in which Right arises,
because it stands nearest to the primary source of all human
Right, and is immediately connected with it. It has thus the
property of a common practice or Custom; and hence the Right
that has arisen in this form is called customary right.
(The System of Right) develops with the People. It attaches itself
to the national character at its different stages of culture; and it
adapts itself to the changing wants and requirements of the
J. In England, Henry Maine (18221888) was closely identified with
the historical school, although there is no evidence that he was
directly influenced by the German thinkers. Modern historical
jurisprudence in England was born with the publication in
London of Maine's Ancient Law in 1861, the year of Savigny's
death. Until then historical research in law had been neglected,
but from that time on, the field was assiduously cultivated. In
reaction against natural law and under the influence of Thomas
Hobbes, the tendency in England had been to regard law as the
command of the state, and the task of the jurist was conceived
as a concern with the analysis of positive law without regard to
historical or ethical considerations. Maine broke with these
traditional attitudes. Probably influenced by Rudolf von Ihering
(Der Geist des rmischen Recht, 3 vols., Leipzig, 18521865),
Maine was stimulated to apply the historical method to
jurisprudence. Charles Darwin'sOrigin of Species, published two
years before Ancient Law, also probably influenced Maine.
Maine rejected the natural law, rationalistic, and a priori
approaches to the nature of law. In his Early History of
Institutions(London, 1875) he saw a people's law as
compounded of opinions, beliefs, and superstitions produced by
institutions and human nature as they affected one another.
Indeed, English common law seemed better to exemplify
Savigny's views than did the law of Germany, which drew
heavily on Roman law. But as an Englishman, Maine saw in law
more than a people's customs; he observed and took into
account the creative and reforming work of Parliament, and so
he was led to recognize legislation as an instrument of legal
growth. And he found that equity and legal fictions played
creative roles in the common law. In these respects he departed
radically from Savigny's monistic approach to law and its
G. F. Puchta, Outlines of Jurisprudence as the Science of Right - A Juristic
Encyclopedia, p. 89-91, http://attylaserna.blogspot.com/2007/10/legal-philosophy-
Maine's comparative historical studies, which took into account
diverse legal systems, kept him from a belief in the mystical
uniqueness of a people and its genius and its law; he observed
uniformities as well as differences in different legal orders, and
so he was led to suggest that similar stages of social
development may be correlated with similar stages of legal
development in different nations. Maine differed from Savigny
also in believing that custom might historically follow an act of
judgment, so that the jurist could be seen to have had a creative
role in making the law, even though he claimed only to have
found it. Maine also noted the part played in early societies by
the codification of customary law. In revealing the ideals
operative in a society at a particular stage of its development
and in relating them to social conditions, Maine stimulated the
development of the use of the sociological method in
jurisprudence. It thus became apparent that just as law cannot
be divorced from history, so, too, it cannot be divorced from
philosophy and sociology. Thus, if Savigny's historical
jurisprudence was mainly conservative in import, Maine's work
had a predominantly liberalizing effect. Then too, Maine's work
influenced the development of comparative legal studies.
II. The following are the salient features of the School.
A. As to the source of law: The source is the Volkgeist. It is an
emanation of the spirit of the people. From this point of view law
is not something that can be devised by means of rational
formal legislation but rather originates in the unique spirit of a
particular people and is expressed spontaneously in custom
and, much later, in the formal decisions of judges. Hence it acts
as a challenge to Natural Law which views law as a universal
ideal legislation for all times and all circumstances, which we
have only to discover to bring positive law to permanent
B. As to nature of law: law is not something that is imposed, but
rather an inherent part of life. Therefore it acts as a challenge to
the prevailing theory that all law in its concrete form is founded
upon the express enactments of supreme power.
Prof. Savigny did not believe in the concept of "universality" of
law, which is, next to "pure reason" or "rationalism", the main
foundation of the theory of the natural law school. On the
Historical Perspective of Legal Philosophy <
Savigny, supra note 2
Savigny, supra note 2
contrary he held the theory that law is "particular or peculiar" to
a people, whose customs, history and culture may be different
from those of other peoples and cultures in the world.
C. As to the creation of law: a slow, almost imperceptible growth
that is formed in much the same way as a language is.
D. As to the scope of law: legislation and law codes can, at most,
give mere verbal expression to a body of existing law whose
meaning and content can only be discovered by careful
historical investigations. (Britannica)
E. As to the task of legislators: the task of legislators and legal
scholars is to organize and clarify, as well as to sharpen the
vague and fuzzy boundaries, of law through historical research;
not to make hasty codifications. If after s a deep and far-
reaching appreciation of the Volkgeist new situations call for the
enactment of new legislations, Savigny warns, that enactments
of this kind [may] become a baneful corruption of law, and
should be most sparingly be employed.
F. As to purpose: to make incremental improvements on the basis
of an understanding of the ongoing historical process of which
we are a part
G. As to inspiration: the Historical thought is inspired by the
Romantic Movement; the reason why it adheres to the concepts
of the folk and the national spirit.
H. As to its basic tenets:
1. Historical jurisprudence is marked by judges who
consider history, tradition, and custom when deciding a
legal dispute.
2. It views law as a legacy of the past and product of
customs, traditions and beliefs prevalent in different
3. It views law as a biological growth, an evolutionary
phenomena and not an arbitrary, fanciful and artificial
Savigny, supra note 2
4. Law is not an abstract set of rules imposed on society
but has deep roots in social and economic factors and the
attitude of its past and present members of the society.
5. The essence of law is the acceptance, regulation and
observance by the members of the society.
6. Law derives its legitimacy and authority from standards
that have withstood the test of time.
7. The law is grounded in a form of popular consciousness
called the Volksgeist.
8. Law develops with society and dies with society.
9. Custom is the most important source of law.
III. The relevance of the Historical School in the Philippines
A. The German word volks means sambayanan, people or
nation. Volksgeist means the diwa ng sambayanan.
Volksrecht means kautusan ng sambayanan.
Filipino legal-philosophy author Prof. Pascual summarizes the
volksgeist and volksrecht thus:
The folk-soul, i.e., the life and spirit of the people, which
is the basic foundation of historical jurisprudence, provides a
sense of beginning and unfolding of law. And in relation to
positive law, the concept of the folk-soul takes on the form
of a theory of what positive law ought to be, which is to say
that positive law should be a reflection of the common
consciousness and spirit of the people. In the words of Emil
Lask, even social values proceed from the substratum of the
From the observation post of historical jurisprudence,
the law is not universal, that is to say, there is not only one
and the same law for all peoples everywhere. (Law) is only
national; it is xxx oriented to the time, place, character,a nd
individuality of a particular people. The reason for this is
that social milieu varies from time to time, from place to
place, and from people to people. Like a people's language
and other cultural attributes, which are not found in others,
the law is the product of the genius or intelligence of that
group of people. In the words of Sir Henry Summer Maine,
the acknowledged leader of historical jurisprudence in
England, the law is the product "of the huge mass of
opinions, beliefs, superstitions, and prejudices of a people
produced by institutions of human nature reacting upon one
another. In different words, law of a group of people is
peculiar only to that group.
B. Law is an experience and it relates to human life (folk-soul and
folk-mind) itself; it is found, not imposed. This is the most
fundamental precept of the historical school.
C. Legal philosophy author Pascual localizes the concept of
volkgeist which he terms as the folk-soul. The folk-soul, i.e.,
the life and spirit of the people which is composed of Opinions,
Beliefs, Longings, Usages, Traditions, Idiosyncracies, Arts,
Customs, and even Superstitions of a people. (OBLITUACS)
D. According to Pascual, we are to discover our folk-soul through
examination of our Folklore (kwentong bayan), Folksaying
(salawikain), Folkway (gawi), Folksong (awit), Folkdance (sayaw),
and Folkart (sining- bayan).
E. Pascual writes that from the viewpoint of the historical school
there are two important points that stand out:
First, the state is regarded as the highest expression or
personification of the volksgeist or diwa of the people. Second,
the law is found and not deliberately made.
F. In the view of the historical school, therefore, "the law is not
deliberately made by the effort of human reason, but is the
product of common conviction, the folk-soul (which) awakens
this conviction, and (that) the law is historically determined.". In
the words of Mr. Justice Cardozo, "history built up the system
and the law that went with it.". Quoting Dean Pound, Pascual
Reason alone cannot work miracles in legal
development nor work wonders in constitution making, decision
making, codification, or legislation. The growth of law is a
historical process. It does not proceed from the peremptory or
arbitrary will or wish of the legislators or judges.
Historical Perspective of legal Philosophy (Pascual, 71-96; underscoring supplied).
City: UP Law Center, 1972.) in Laserna
IV. Filipino lawyer Laseren gives the following criticisms to the Historical
A. It fails to give proper importance to the fact that in certain
fundamental legal issues there are basic principles of law and
jurisprudence that are, indeed, universal and objective in nature
regardless of culture
B. There are certain principles, especially those of morality and
ethics, as they relate to law and jurisprudence, which are
immutable and objective in character
C. It tends to discourage law reform.
D. It tends to promote juristic instability as the oblutiacs of various
cultural minorities may not be in line with the shared
mainstream oblutiacs.
E. Some customs are per se barbaric, inhuman and
V. Summary
In summary, according to the Historical School, the law is first
developed by custom and popular faith, next by judicial decisions
everywhere, therefore, by internal silently operating powers, not by
the arbitrary will of a law-giver.

The Philippines: A Past Revisited by Renato Constantino
Unlike other history books that contain stories from the point of view of
the Spanish and American colonizers, Renato Constantino's book entitled The
Philippines: A Past Revisited endeavors to re-tell the history of the Philippines
and its people from the perspective of the Filipinos in order to correct the biases
and other inaccurate facts of the Philippine history. Chapter 1 of Contantino's
book explains how we should look at the story of our nation in order to fully
understand what we are today and why we are here today. Constantino's book
Id, 88, citing Dean Pound, 36 Harvard Law Review, 802, 822 [1923].
retrieved January 26, 2013 from <http://attylaserna.blogspot.com/2007/10/legal-
Encyclopedia Brittanica, Friedrich Karl von Savigny, (Online Website, 2013)
retrieved January from <
has two fundamental objectives: (1) to rediscover a truly Filipino history by re-
telling the historic struggles of the Filipinos who are the real motivators of the
history; and (2) to understand a people's history that unifies past with present
What is a truly Filipino history according to Constantino?
A truly Filipino history is the history of the Filipino people.
It is not the story of heroes and great men.
It is not merely a chronology of events.
It is the recorded struggle of people for ever increasing freedom and for
newer and higher realizations of the human person.
It consists of the people's effort to attain a better life.
It must account for the general historical experience of the people in
order to serve as concrete guide for understanding a developing society.
At the same time, it must show the interrelationships of particularities.
It must rediscover the past in order to make it reusable.
It must deal with the past with a view to explaining the present.
The Filipino history as a guiding light to the development and construction of the
Philippine legal system.
The quotation below, taken from the book of Constantino, summarizes
how the Filipino history should be the guiding light to the development and
construction of the Philippine legal system.
A history that serves as a guide to the people in
perceiving present reality is itself a liberating factor, for
when the present is illuminated by a comprehension of
the past, it is that much easier for the people to grasp
the direction of their development and identify the
forces that impede real progress. By projecting the
people's aspirations, a people's history can give us the
proper perspective that will enable us to formulate the
correct policies for the future, liberated from outmoded
concepts based on colonial values serving only the
needs of foreign powers.
In constructing and ascertaining the meaning of the law, we must
always do it in a manner that will help accomplish its supposed intention and
never disregard the conscience and equity embodied in our law. And, if in the
future we become lawmakers, we must create laws that will reflect the people's
continuous struggle to attain a better life. Our laws, bearing in mind our history
as described by Constantino, should contain policies and rules that will serve
the interest of the general public, and not of some selected groups, towards the
realization of their human potential and continuous development.
Legal history in the perspective of Roscoe Pound.
Parallel to Constantinos objectives is the approach to law of Roscoe
Pound, a prominent American legal jurist and educator. Pound surmises that the
purpose of history is to serve as a foundation for economic realism, legal order,
class struggle for supremacy and lawmaking or law-finding. However, in reality,
legal history serves as a warning.
In his article, What Do We Ask of Legal History?, he begins by
mentioning the first ever documented jurisprudence in history, The Judgment of
Solomon, to set a picture on how King Solomon may have ended up with his
decision. A quotation from Mark Twain explains the judgment of Solomon which
is It all lies in the way Solomon was raised. The atmosphere that Solomon
grew up with is expected to likely have affected his decision making.
Throughout time, it can be seen that there have been varying thinking
about law in relation to history. Because of that, several schools of thought
emerged such as the analytical jurists and historical jurists. The first one
married their theories with the concept of social pressure while the latter
included their metaphysical ideals. These schools of thought paved the way to
the identification of history as a foundation of several aspects of law. One
perspective sees legal history as a foundation of economic realism which
conceived that right and law were simple power. The others call upon legal
history to demonstrate the theories of class struggle for supremacy. This
purpose of legal history is evident in the article of Constantino when he
mentioned how Philippine history is about the collective struggle of the Filipinos.
Another view sees legal history as a foundation for the legal order and the
principles of a science of society. The last purpose uses history as an instrument
of lawmaking and law-finding. In here, it shows the accomplishments and
failures of past laws.
Provided all of these, perhaps the actual and assured purpose of history
according to Pound is to serve as a warning. One cannot expect assured
guidance to juristic or legislative from the study of the legal advances of the
past. History is a warning because it shows the success and failures of
lawmaking of law-finding agencies. The main cause of these failures is
attributed to the dangers of reasoning from analogies supplied by history.
Reasoning is a process, a faculty of man in action. And since law is experience
developed by reason, it is corrected by further experience to which reason is
again applied. Since, the experience that history posits is not a sure pattern of
reason; it is in the exercise of reason through reasoning by the jurist historian
where the actual purpose of history is achieved.
Pound provides illustrations of misdirection in law brought by reasoning.
He criticizes that through time, the interpretation of laws has resulted to badly
chosen analogies, confusion and perversion of history. To resolve this, Pound
suggests that we should not turn to the facts of legal history; it is the relation of
those facts to their time and of their time to ours where we can identify how far
they are truly analogous to those of today. Pound finally submits that the
appropriate question is not that of our expectation of legal history but that of
the legal historianone who must at least be a lawyer, philosopher and
psychologist rolled into one to make sure that he comes up with appropriate
Our history is a vital part of our very existence. It provides us with a
holistic view of what the Philippines is and who the Filipino people are today. A
real understanding of the various struggles of our people would make us feel all
the pains and sufferings that they endured in order to achieve the freedom,
independence, and progress that we are enjoying today. In developing and
constructing the Philippine legal system, we must always take into consideration
the struggles of our countrymen. Our legal system is a product of the historical
struggles of the Filipino people towards individual and social development. We
must always look into our history in order to understand what our brothers and
sisters fought for and continuously fighting for. From these historical struggles,
we can then effectively identify the true spirit of the law and that is to create a
just and humane society, and a government that embodies the aspirations of
the people, promotes their welfare, and protects their freedom and
independence, as contemplated in our Philippine Constitution. Ratio legis est
anima, the reason of the law is its soul. We study our history to learn from it and
not to repeat it. Our history should serve as a leading star and guiding light in
developing a legal system that advances the freedom of the people and
improves the society.
As future lawyers, it is additionally essential that we do not become
dependent of what legal history has to give; on top of that profession, we must
also step into the shoes of a moral, social and economic philosopher and
psychologist in order to come up with adequate basis for analogies.
St. Thomas Aquinas
1 Born: About 1225
1 Birthplace: Roccasecca, Naples, Italy
1 Died: 7 March 1274
1 Parent: Landulf of Aquino
1 Nationality: Italian
1 Education: Order of Saint Benedict, University of Naples Federico II
1 Occupation: Priest, Philosopher, Theologian
1 Influenced by: Aristotle, Avicenna, Averroes, Al-Ghazali, Augustine of
Hippo, Boethius, John of Damascus, Paul the Apostle, Dionysius the
Areopagite, Albertus Magnus, Maimonides, Anselm, Plato, Cicero,
St. Thomas Aquinas on LAW
1 The Law
1 a rule or measure of human acts, whereby a person is induced to act or
is restrained from acting (ST IaIIae 90.1)
1 "Law is a dictate of reason commanding something."
1 It is matter of intelligent direction addressed to the intelligence and
reason of those whom it directs
1 Characteristics of Law
1 Law must be rational
1 Law must be coercive
1 Types of Law
1 Eternal Law
1 the rational governance of everything on the part of God as the
ruler of the universe (Summa Theologiae IaIIae.91.1)
1 Unchanging
1 Identical to the mind of God as seen by God himself
1 Types of Law
1 Divine Law
1 Derived from eternal law as it appears historically to humans
1 Divided into the Old Law and the New Law
1 Types of Law
1 Natural Law
1 the participation in the Eternal Law by natural creatures.
1 people, recognizing what is good and bad in the universe by
natural inclination, act upon that which is good.
1 Good should be pursued and done, and evil avoided.... (q94,
a2, p. 47)
This is the foundation of all other precepts of natures law,
such that whatever things practical reason naturally grasps to be human
goods pertain to natural laws precepts as to what is to be done or avoided.
1 The Law, the Community and the Responsible Authorities
1 an ordinance of reason for the common good of a community,
promulgated by the person or body responsible for looking after that
1 Unjust Law
1 Unjust law
1 motivated not by concern for the community's common good
but by greed or vanity
1 act outside the authority granted to them
1 while acting with a view to the common good apportion the
necessary burdens unfairly
St. Thomas Aquinas on JUSTICE
1 Justice
1 sustained or constant willingness to extend to each person what he or
she deserves.
1 Types of Justice
1 Legal Justice
1 Purpose: govern our actions according to the common good
1 general virtue which concerns not individual benefits but
community welfare
1 welfare of the community is what falls under the purview of
legal justice
1 Types of Justice
1 Particular Justice
1 directs us not to the good of the community but to the good of
individual neighbors, colleagues, and other people with whom
we interact regularly
1 proximate concern of particular justice cannot be the common
good but the good of individuals
1 Types of Justice
1 Commutative Justice
1 concerns the mutual dealings between individual citizens
1 Specifically, it seeks to ensure that those who are buying and
selling conduct their business fairly
1 kind of equality commutative justice seeks to preserve is a
matter of quantity
1 Types of Justice
1 Distributive Justice
1 concerns the way in which collective goods and responsibilities
are [fairly] apportioned among people who stand in a social
1 what is due will be relative to what one deserves depending
on his efforts or station in life.
1 Injustice
1 Twofold:
1 First, a vice directly opposed to general or legal justice and is an
act of contempt of the common good which may lead to all
kinds of sin
1 Second, it is the inequality between one person and another (ST
q59, a1, obj.3)
1 Injustice
1 One becomes unjust by:
1 choosing to do what is unjust
1 with the intention of doing this thing which both
1 is unjust and
1 one knows or should know to be unjust
Immanuel Kant:
Immanuel Kant ( 22 April 1724 12 February 1804) was a German
philosopher from Knigsberg in Prussia (today Kaliningrad, Russia) who
researched, lectured and wrote on philosophy and anthropology during the
Enlightenment at the end of the 18th century.
Immanuel Kant (1724 - 1804) is
one of the most important philosophers in history, and is best known for his
Critique of Pure Reason, the ambitious project in which he attempted to define
the limits of reason itself. His ethical theory was written mainly in the
Groundwork for the Metaphysics of Morals, where he tried to derive moral
principles from logic itself. The main engine of his ethical theory is the
Categorical Imperative.
Immanuel Kants Philosophy:
Autonomous Decisions- The capacity to make an informed, uncoerced decision,
free of external authority. This is very important, because Kant regarded every
individual as equal. You must understand that Kant was a firm believer in
7 en.wikipedia.org/wiki/Immanuel Kant
8 suite101.com/article/the-categorical-imperative-of-immanuel-
autonomy. Kants ethical theory reflected the optimistic confidence in the
objectivity of human reason and the value of individual autonomy, which was
characteristic of the term Enlightenment.
Deontology (Deon = Duty)- Kantian ethics begins with a basic principle and
derives rules from that principle and it guides ones actions. He is considered a
deontologist because he emphasizes what we are supposed to do, deon from
the greek word, meaning duty.
Actions in themselves are right or wrong- Kant strictly believed that actions are
in themselves right or wrong and not simply because of their consequences.
Ethical rules should never be broken- Kant took the extreme view that some
ethical rules should never be broken regardless of the consequences.
Human value - Human value is obviously important because we hold the value
of life high, typically higher than material things. Kant believed that ethical rules
are intended to protect and benefit human beings, even the most basic ethical
rules may need to be broken in unusual circumstances to avert major human
catastrophes. In all but very extreme cases, however, deontologists regard
respect for individual human beings as taking priority over maximizing
happiness. This piggy-backs with the first point that Kant encourages
individuals to make good decisions because each person is important. The
message for this one is: universal respect for all persons.
Duties used to derive reason and moral decision- an action is morally good
and praiseworthy only if it is done from a sense of duty, or what Kant calls a
good will. Duty and good will go hand in hand. Remember one word Motive.
In Kantianism, motive is everything. It is not enough to do the right thing; it
must be done because the one who acts believes that this action is morally
right, which is his/her duty. For Kant, consequences are irrelevant to morality.
One should do one's duty for the sake of duty itself, even if it causes you or
other people harm. Your intentions are the important thing.
Example: There are two presidents:
1) The first is honest because he is scared of being caught if he tries to
cheat his people.
2) The second is honest because it is his duty to be honest.
ANS: According to Kant, only the second president is behaving morally.
In his writing, Kant did not spend a great deal of time explaining what he
thought was right or wrong, only that we should develop an internal voice
which would tell us what we should do in any given situation. When faced with a
moral problem we should apply reason and come up with what we ought to do
in that situation. To Kant, everyone has a duty to take part in this type of moral-
decision making: which he called the categorical imperative.
Kants View of the Law
To understand the Categorical Imperative, we must first understand the
concept of law for Kant. According to H. J. Patton, in his study to Kants
Categorical Imperative
, one of the most fundamental characteristic of law is its
universality. It must be affected to all without any exceptions. If the principle
that every event must have a cause is a law of nature, then there can be no
9 Categorical Imperative: A study in Kants Moral Philosophy by H.
J. Paton.
exceptions to it.
Kant called it the law of freedom which is loosely inclined to
what we suppose as acting through our own discretion. For Kant it is the law in
accordance with which a rational agent [of how he] would act if reason had full
control over his inclinations.
The law of freedom, or the moral law, should
have no exceptions without it ceasing as a law. There cannot be one moral law
for me and another for you. The law must be the same for all.

Universality of law is the form of law for unless it is universal, it is not a

law whatever may be the subject of it. Therefore, we should have an objective
moral standard, so much so that it should be treated as a universal guide to
everyones actions.
Apart from its universality, Kant introduces to us the concept of pure
reason. For the reason that a law should be universal, it cannot, then be
subjected to any desires or any empirical factors in it. Subjecting a law to our
experiences, for instance, will make in inviolable to being universal since not
everyone has the same experience. Therefore, it must be based on pure reason
alone or subject to a priori. This is evident to the first, and what Kant considered
as the only formula but presented five formulas nonetheless, formula in his
categorical imperative which is Act only on that maxim through which you can
at the same time will that it should become a universal law.
Another characteristic that was presented by Kant is the concept of
moral duty. Duty, as what have been stated before, is that which we are
suppose to do and for him a good action is one that complies with the moral
duty which is law-abidingness. Respect for the laws guiding us is qualified, in
the sense that the thought that the law gives us a duty is compelling only if
there is no law we respect more that conflicts with it.
This is the pursuance of
a duty enacted by the good will. Good will is the idea that a person is good if he
has a will that is determined or is guided by the moral law
. A good will is a will
whose decisions are wholly determined by moral demands or as he often refers
to this, by the Moral Law.
There are two things that could be extracted from
this: first, that there should be nothing that would make us lose our moral
goodness to obtain a desirable thing and second, that good will should be good
in itself and not dependent on another thing such as the happiness of the
person. The first idea revolves around the desires of men. Although there are
desirable qualities, such as courage, one cannot desire it if it would mean the
destruction of the moral goodness in us. If courage then requires inequality, it is
much better to not acquire it than losing the moral goodness of oneself. The
10 Ibid. P. 69
11 Ibid
12 Ibid
13 Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/kant-moral/. Last
viewed on February 2, 2013
14 Ibid.
15 Ibid.
second idea revolves around the concept of having a will that is good in itself
without the involvement of a condition. Thus, if a person decides to eat because
he wants to be full, such action has no genuine moral worth because if the
motivation to be full was not achieved, the person will not do his duty, which is
to eat. On the other hand, if we change the persons motivation into one that is
with respect to duty, or the concept of Moral law, the person shall eat regardless
of the circumstances.
Thus for Kant, a law should be universal that which is base on pure
reason alone and should be obeyed, free from of all desires, for the end of
himself. This will be elaborated further on the context of categorical imperative.
The Formulation of the Categorical Imperative
Kant seemed to claim only one formula but he presented five formulas
which can be infused into three:
1. Formula of the Universal Law: Act only on that maxim through which
you can at the same time will that it should become a universal
1.a. Formula of the Law of Nature: Act as the maxim of your action were
to become through our will an universal law of nature.
2. Formula of the End in Itself: Act as to use humanity, both in your own
person and in the person of every other, always at the same
time as an end, never simply as a means.
3. Formula of Autonomy: Act that your will can regard itself at the same
time as making universal law through its maxim
3. a. Formula of the Kingdom of Ends: Act as if you were always through
your maxims a law-making member in a universal kingdom of
The main purpose of having the formulas is to formulate precisely the
supreme principle of morality.

The Categorical Imperative is how one determines one's duty, how one
determines what principles are proper and which are not
It is a command which expresses a general, unavoidable requirement of the
moral law. Its three forms express the requirements of universaliszability,
respect and autonomy. Together they establish that an action is properly called
'morally good' only if (1) we can will all persons to do it, (2) it enables us to treat
other persons as ends and not merely as the means to our own selfish ends, and
(3) it allows us to see other persons as mutual law-makers in an ideal 'realm of
'. It is the virtue in applying to us unconditionally, or simply because we
16 Categorical Imperative: A study in Kants Moral Philosophy by
H. J. Paton.
mbp/categoricalimper033512mbp.pdf. pg. 131
17 suite101.com/article/the-categorical-imperative-of-immanuel-
possess rational wills, without reference to any ends that we might or might not

It is different from the other imperative which is the hypothetical
imperatives in which one will some end
. Kant described it as an action is good
for some purpose that one could have (problematic) or that one actually does
have (assertoric).
Problematic is that which end we might or might not will
depending on the end of the will.
The other one gives us a real end that we
want and for Kant, the only non-moral end that we must will is happiness as
happiness in itself depends on the persons interest as ones interest may be
different from others. However, it is apparent that happiness is also one of
humanities end of himself, or his goal so it involves the second formula of
Categorical Imperative.
The First Formula: Formula of the Universal Law
Act only on that maxim through which you can at the same time will that it
should become a universal law.
The categorical imperative should be based on an unconditioned
objective principle. An unconditioned objective principle is on which every
rational agent, irrespective of his particular desires for particular ends would
necessarily obey if reason had complete control over his passions, and one
which he ought to obey if he is irrational enough to be tempted to do
Universalization- The categorical imperative requires that any moral
decision you make must be acceptable for everyone else to do too.
Example: You would not be complying with universalization if you thought it ok
to lie, but expect everyone else not to lie.
Rule for testing rules:
Before you act, generalize the maxim or principle on which you are
if you are able to imagine such a world and you would want to
live there, then it is moral to act on that principle.
18 http://staffweb.hkbu.edu.hk/ppp/ksp1/KSPglos.html
19 Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/kant-moral/. Last
viewed February 1, 2013
20 Ibid.
21 Immanuel Kant. Groundwork for the Metaphysics of Morals.
2010-2015. Last Amended September 2008
22 Ibid.
23 Categorical Imperative: A study in Kants Moral Philosophy by
H. J. Paton.
mbp/categoricalimper033512mbp.pdf. pg. 133
If it will not be okay for everyone everywhere then it would be
First test: contradiction in conception or self-contradiction
o A maxim is wrong if the situation in which everyone acted on that
maxim is somehow self-contradictory
Example: Stealing: if we could all just help ourselves to
whatever we wanted, the idea of owning things would disappear. No one
would be able to steal
+ Maxim: I may make a false promise in order to reap financial
This is self-contradictory because: If anyone may make a "false
promise," nobody would take a promise seriously; promising becomes
Result: I may not act on that maxim. The maxim fails Test One
Second test: Contradiction in will (Reversibility)
o If the maxim youre testing isnt self-contradictory, then ask whether
you would choose to live in a world where it was followed by everyone.
o If it will not be okay then it would be wrong
+ Maxim: I may refuse to help another person in distress who
cannot pay me even though I could do so at little cost to
Generalized: Anyone may refuse to help another person in distress who
cannot pay her even though it would cost her little to help.
Can it be conceived? Yes.
Could you will this to be a universal law? Probably not, because you
might find yourself in a situation of extreme need and nobody else
would help you.
Result: You cannot act on the maxim
What is the form of the maxim?
I will A in C in order to realize or produce E where A is some act type,
C is some type of circumstance, and E is some type of end to be realized or
achieved by A in C. Since this is a principle stating only what some agent wills, it
is subjective.
The Formula of the Law of Nature
Act as if the maxim of your action were to become through your will a universal
law of nature.
24 http://people.wku.edu/jan.garrett/ethics/kant.htm
25 http://people.wku.edu/jan.garrett/ethics/kant.htm
26 Stanford Encyclopedia of Philosophy.
http://plato.stanford.edu/entries/kant-moral/. Last viewed on
February 1, 2013
Kant presented this formula as introduction to the rules in which a
maxim would be considered morally permissible. As of the first formula, we can
therefore conclude that whatever is universally permissible affects rational
beings so much so that it affects our duty which is one of the central themes of
categorical imperative. In this formula, Kant provided us with grounds for what
is morally permissible as derived from our duties
1. Formulate the maxim that enshrines your reason for acting as you
2. React on that maxim as a universal law of nature governing all
rational agents, and so as holding that all must, by natural law, act as
you yourself propose to act in these circumstances.
3. Consider whether the maxim is even conceivable in a world governed
by this law of nature.
4. Ask yourself whether you would, or could, rationally will to act on your
maxim in such a world.
Kant distinguished the four steps as the four duties: the first one is
perfect duties to us, the second one is perfect duties to others, the third one is
perfect duties, and the last one is imperfect duties. The third and the fourth
steps have been explained with examples earlier: the contradiction in
conception text and the contradiction in the will test, respectively. For the first
step or duty, Kant explained it through the example of a man attempting to
commit suicide. Suppose that a man, with his maxim:
For love of myself, I make it my principle to cut my life short when
prolonging it threatens to bring more troubles than satisfaction.

Although the maxim is grounded on the love of oneself, it is in

contradiction to the law of nature itself since it leads to the destruction of
as the maxim should be universally considered. To refrain from suicide is
the perfect duty toward oneself.

On the other hand, for duties toward others, Kant provided us with a
When I think I need money, I will borrow money and promise to repay
it, although I know that the repayment wont ever happen.
27 Ibid.
28 Immanuel Kant. Groundwork for the Metaphysic of Morals.
29 Ibid.
30 Stanford Encyclopedia of Philosophy.
http://plato.stanford.edu/entries/kant-moral/. Last viewed on
February 1, 2013
31 Immanuel Kant. Groundwork for the Metaphysic of Morals.
Again, this is a not permissible as it is immoral. There is the preservation
of self-love, of having money for the future, but does it constitute what is right?
If it would be a universal law- everyone would lie on their promise of payment- it
would become impossible since no one would believe such promise. Therefore,
there is no necessity for the law. Thus, it is invalid.
The Second Formula: Formula of the End in Itself
Act as to use humanity, both in your own person and in the person of every
other, always at the same time as an end, never simply as a means.
In Kants Groundwork, the formula is Act in such a way as to treat
humanity, whether in your own person or in that of anyone else, always as an
end and never merely as a means
. The simplest explanation for this formula is
to not act in a way that humans, as humanity is directly expressed, would be
used only as a means to our personal ends but to act in a way that humans
would be used as an end of himself. It is only an end that serves as an
objective principle for the self determination of the will, and only an end in itself
that serves as a universal principle holding for all rational beings.
It is that
men should be regarded in all his actions as an end in himself.
To understand it better, the concept of humanity should be understood
not only of the physical persons themselves but of humanity in humans. Our
Humanity is that collection of features that make us distinctively human and
these include capacities to engage in self-directed rational behavior and to
adopt and pursue our own ends, and any other capacities necessarily connected
with these.
This introduces us to his idea of respect that which we must
respect persons for they are essential to humanity.
The end of himself refers to the end of the person, the purpose or goal
for its own sake. Thus, every human, by human nature, want their own
happiness. However for Kant, and it was explained in his Groundwork
, in
accordance with the duty for others, as a maxim should be proposed, ones
happiness could only lead to a negative harmony. No one contributed to the
happiness of others, but also no one intentionally took anything away from the
happiness of others
This leads to a limitation of happiness that could be
32 Ibid.
33 New Advent. http://www.newadvent.org/cathen/03432a.htm.
Last viewed February 4, 2013
34 Immanuel Kant. Groundwork for the Metaphysic of Morals.
35 Stanford Encyclopedia of Philosophy.
36 Immanuel Kany. Groundwork for the Metaphysic of Morals.
experienced by humanity. To achieve the positive harmony, one must positively
try to further the ends of others as he can
An example of the latter is an
imperfect duty of charity. It follows all the three tests to be morally accepted but
it cannot be willed all the time although it should be done as often as possible.
Perfect duties are the ones that we are obliged to do all the time such as
abhorrence to killing
. In this sense, the universality comes in when through a
maxi, if the end would be the end of humanity itself, then it is immoral. Take for
example lying, if it would be made into a maxim that would allow all people to
lie, then it would be the end of communication by people with each other
the loose of trust that would affect how people deal with each other.
The Third Formula: The Law of Autonomy
Act as to use humanity, both in your own person and in the person of every
other, always at the same time as an end, never simply as a means
In Kants Groundwork it is phrased as the idea of the will of every
rational being as a will laying down universal law
. For him, any maxim is
rejected if it is not consistent with the wills role as a giver of universal law.

Thus, the will should be subject to the law as well as subject of the law. This
gives the agent or the rational beings the status as being universal law givers
rather than law followers.
In this formula the desires or interests should be
absolves since having them would produce another law to justify these interests
as universally valid. In making a universal law, one must take away all empirical
factors and focus only on a priori principles to be unconditional and to be
without exemptions. For the reason that it is universal, it must then still conform
with the Moral Law and have his desires be constrained, have him follow the
rule of having humanity as an end in himself, thus, affirming to the other
formulas cited before.
The Kingdom of Ends Formula
37 Ibid.
38 Ibid.
39 Pecorino, P. Medical Ethics.
Categorical_Imperative.htm. 2002
40 Ibid
41 Immanuel Kant. Groundwork for the Metaphysic of Morals.
42 Ibid.
43 Stanford Encyclopedia of Philosophy.
Act as if you were always through your maxims a law-making member in a
universal kingdom of ends.
For Kant, having rational beings give a rational law through the maxims
generated from the will leads to a realm of ends or the Kingdom of Ends. It is
the systematic union of different rational beings through shared laws
and a
whole composed of rational beings who are ends in themselves and of ends
that they may individually set for themselves.
As rational beings, then, we
produce laws that are universal and treat ourselves and others not only as
means but ends of themselves. This community is the realm or Kingdom that we
speak of.
The Unity and Equality of Formulas
Although Kant claimed that there is only one formula which he called
the categorical imperative, he presented five formulas, which could be infused
to three, on his work. Kant claimed that they are equivalent in a way that they
share the same attributes: form, matter of content, and complete fixing. For the
form, all formulas are universal and they, then, can be considered as
categorical. For the matter of content, all is relative to the end, specifically, the
end in himself. For the last one, all maxims that came from your own law-giving
must be in harmony with others to produce a realm of ends.
Difference with the Golden Rule
The Golden Rule can be phrased as Do unto others what you want
others to do unto you or in its negative form Do not do unto others what you do
not want others to do unto you. Categorical imperative is mistakenly regarded
as similar to this rule in the sense that one must formulate a maxim that would
be taken as a universal law that affects not only you but others as well or the
third formula. However, the Golden Rule can justify an action which may be
contradictory to humanity if taken universally. With the Golden Rule, a
masochist or a sadist would be justified in causing or receiving pain.
action of causing pain or receiving pain would be justified since they also want
to it to be done to them, but it cannot be universally done since it would only
make humans a mean to achieve pleasure.
Criticisms to Kants Categorical Imperative
1. The Inquiring Murderer
44 Immanuel Kant. Groundwork for the Metaphysic of Morals.
45 Ibid.
46 Pecorino, P. Medical Ethics.
Categorical_Imperative.htm. 2002
One of the first criticisms on Kants categorical imperative came from
the French philosopher Benjamin Constant. As it is a universal rule not to lie,
would one not lie if asked by a famous murderer where his prey or supposed
victim is. According to Kant, in his essay On a Supposed Right to Tell Lies from
Benevolent Motives, one should not tell a lie for that will make the murderer a
means only and rob him of the truth that he needed. If universally applied,
people would then lie to all murderers that the latter will then not believe of any
statements and such, no necessity in making the lie to the murderer.
In his work, Kant defended that in telling lies one must be responsible to
the consequences that the lie would produce. Suppose that a person, who was
asked, had lied to the murderer and his friend ran out of the house but the
murderer saw him, chased him, and then killed him. The lie that was produced
then the person who lied may be responsible for hs death.
If, then, we define a lie merely as an intentionally false declaration
towards another man, we need not add that it must injure another; as the jurists
think proper to put in their definition (mendacium est falsiloquium in
prjudicium alterius). For it always injures another; if not another individual,
yet mankind generally, since it vitiates the source of justice.xxx For instance, if
you have by a lie hindered a man who is even now planning a murder, you are
legally responsible for all the consequences. But if you have strictly adhered to
the truth, public justice can find no fault with you, be the unforeseen
consequence what it may. It is possible that whilst you have honestly answered
Yes to the murderers question, whether his intended victim is in the house, the
latter may have gone out unobserved, and so not have come in the way of the
murderer, and the deed therefore have not been done; whereas, if you lied and
said he was not in the house, and he had really gone out (though unknown to
you) so that the murderer met him as he went, and executed his purpose on
him, then you might with justice be accused as the cause of his death. For, if
you had spoken the truth as well as you knew it, perhaps the murderer while
seeking for his enemy in the house might have been caught by neighbors
coming up and the deed been prevented. Whoever then tells a lie, however
good his intentions may be, must answer for the consequences of it, even
before the civil tribunal, and must pay the penalty for them, however
unforeseen they may have been; because truthfulness is a duty that must be
regarded as the basis of all duties founded on contract, the laws of which would
be rendered uncertain and useless if even the least exception to them were

It seems that rather than answering yes or no, one can ask the murderer
What do you want from her? or What makes you think that I have him? or
tell the murderer that Killing will not resolve anything.
In this sense, the
person does not lie and does not make the person in danger. Although it was
also contended that if the person would not lie, it is against the moral law itself
47 http://www.cabrillo.edu/~cclose/docs/Kant_Inquiring%20Murderer.pdf
48 http://www.philosophicalinvestigations.co.uk/index.php?
since Kant claimed that we subconsciously use it. Subconsciously we would lie
for the life of the person or for our life itself.
2. Schopenhauers Question on Autonomy
Schopenhauer question Kants Law of Autonomy in the sense that
people have in themselves a sufficient understanding of what is moral base on
pure reason alone and without experiences. For Schopenhauer there are
different reasons in explaining a persons action and not just from pure reason
alone or what could be extracted from the person themselves. In understanding
human beings we must go beyond the limits of human understanding and he
introduced the fourfold root of the principle of sufficient reason.
These are
being, becoming, acting, and knowing. Kant takes the fields of human
understanding as his starting-point, and explores the basic concepts that
structure them. Schopenhauer takes the world as his starting-point, and
explores how our different fields of human understanding all belong together in
illuminating that world.

It is fascinating to subject ourselves to the reason inherent in us.
Although we think that universality has a great impact since everyone would
follow the same maxims and rules and no exceptions would be counted
therefore securing fairness and equality, we think that we must never rule out
that equality does not mean being in the same position as others. This entails
that we cannot take away the prerogative of man to learn from their
experiences since it is also inherent in every man. Experience, as we have heard
most often, is the best teacher. Humanity have developed in a vast way through
trials and errors so much so that taking that away and form rules base only on
what we could come up that would universally compatible would not be present
at all times and should be constantly changes which is in contradiction of the
Moral Law itself because then, pure reason can change.
Second, there are actions which may be immoral but should be done for
the greater good and for a greater cause. We have passions and desires that are
helpful to us as beings and they formulate the goodness of our actions.
It is therefore better for us to make laws not only because they are
inherently good but because through the lessons that we have learned from our
experiences, we know that it must be done.
I. Utilitarianism
A theory in normative ethics holding that the proper course of action is
the one that maximizes utility, specifically defined as maximizing happiness and
reducing suffering. According to utilitarianism the moral worth of an action is
determined only by its resulting outcome although there is debate over how
much consideration should be given to actual consequences, foreseen
consequences and intended consequences.
49 http://www.richmond-philosophy.net/rjp/back_issues/rjp17_samuel.pdf
50 Ibid.
II. Kinds of Utilitarianism
Ideal Utilitarianism
A utilitarian theory which denies that the sole object of moral concern is
the maximizing of pleasure or happiness. It is aesthetic experiences and
relations of friendship that have intrinsic value, and therefore ought to be
sought and promoted, while consciousness of pain, hatred or contempt of what
is good or beautiful, and the love admiration or enjoyment of what is evil or ugly
are the three things that have intrinsic disvalue and should therefore be
shunned and prevented.
Positive and Negative Utilitarianism
Positive utilitarianism recommends the promotion or maximization of
the intrinsic value, negative utilitarianism recommends the reduction or
minimization of the intrinsic disvalue.
Preference Utilitarianism
Moral theory according to which the good consists in the satisfaction of
people's preferences, and the rightness of an action depends directly or
indirectly on its being productive of such satisfaction.
Precedent Utilitarianism
Precedent Utilitarians believe that when a person compares possible
actions in a specific situation, the comparative merit of each action is most
accurately approximated by estimating the net probable gain in utility for all
concerned from the consequences of the action, taking into account both the
precedent set by the action, and the risk or uncertainty due to imperfect
Act Utilitarianism
According to act-utilitarianism, it is the value of the consequences of the
particular act that counts when determining whether the act is right. It is
applied directly to each alternative act in a situation of choice. The right act is
then defined as the one which brings about the best results (or the least amount
of bad results).
Rule Utilitarianism
An action or policy is morally right if and only if it is consistent with the
set of rules (moral code) that would maximize happiness, if generally followed.
The rightness or wrongness of a particular action is a function of the correctness
of the rule of which it is an instance.
Two-Level Utilitarianism
It is virtually a synthesis of the opposing doctrines of act utilitarianism
and rule utilitarianism. A person's moral decisions should be based on a set of
intuitive moral rules, except in certain rare situations where it is more
appropriate to engage in a critical level of moral reasoning.
III. Proponents of Utilitarianism
The Utilitarians were social refomers who supported the suffrage of
women and those without property, and the abolition of slavery. Among the
leading proponents of the utilitarian principle were Jeremy Bentham and John
Stuart Mill. The lives and principles of the two will be discussed in this paper.
Jeremy Bentham was born on February 15, 1748 at Houndsditch,
London. He was a British philosopher, jurist and social reformer. He is regarded
as the founder of modern utilitarianism. Bentham became a leading theorist in
Anglo-American philosophy of law, and a political radical whose ideas influenced
the development of welfarism. He advocated individual and economic freedom,
the separation of church and state, freedom of expression, equal rights for
women, the right to divorce, and the decriminalising of homosexual acts. He
called for the abolition of slavery, the abolition of the death penalty, and the
abolition of physical punishment, including that of children. Although he never
practiced law, Bentham did write a great deal of philosophy of law, spending
most of his life critiquing the existing law and strongly advocating legal reform.
Throughout his work, he critiques various natural accounts of law which claim,
for example, that liberty, rights, and so on exist independent of government. In
this way, Bentham arguably developed an early form of what is now often called
legal positivism. Beyond such critiques, he ultimately maintained that putting
his moral theory into consistent practice would yield results in legal theory by
providing justification for social, political, and legal institutions.
His ambition is to create a Pannomion or a complete utilitarian code of
law. He not only proposed many legal and social reforms, but also expounded an
underlying moral principle on which they should be based. He is primarily known
today for his moral philosophy, especially his principle of utilitarianism, which
evaluates actions based upon their consequences. The relevant consequences,
in particular, are the overall happiness created for everyone affected by the
action. Influenced by many enlightenment thinkers, especially empiricists such
as John Locke and David Hume, Bentham developed an ethical theory grounded
in a largely empiricist account of human nature. He famously held a hedonistic
account of both motivation and value according to which what is fundamentally
valuable and what ultimately motivates us is pleasure and pain.
He developed this idea of a utility and a utilitarian calculus in
the Introduction to the Principles of Morals and Legislation. In the beginning of
that work Bentham wrote:
"Nature has placed mankind under the governance of two
sovereign masters, pain and pleasure. It is for them alone to
point out what we ought to do, as well as to determine what we
shall do. On the one hand the standard of right and wrong, on
the other the chain of causes and effects, are fastened to their
throne. They govern us in all we do, in all we say, in all we
think: every effort we can make to throw off our subjection, will
serve but to demonstrate and confirm it."
Happiness, according to Bentham, is thus a matter of experiencing
pleasure and lack of pain. Bentham believed that pain and pleasure not only
explain our actions but also help us define what is good and moral. He believed
that this foundation could provide a basis for social, legal, and moral reform in
In order to calculate the degree or amount of pleasure that a specific action
is likely to cause, he formulated an algorithm called the Felicific Calculus.
Since Bentham is an ethical hedonist, he believed that the moral rightness or
wrongness of an action to be a function of the amount of pleasure or pain that it
produced. For the Felicific calculus to work, certain variables or elements are
involved. This are:
1. Intensity: How strong is the pleasure?
2. Duration: How long will the pleasure last?
3. Certainty or uncertainty: How likely or unlikely is it that the
pleasure will occur?
4. Propinquity or remoteness: How soon will the pleasure occur?
5. Fecundity: The probability that the action will be followed by
sensations of the same kind.
6. Purity: The probability that it will not be followed by sensations
of the opposite kind.
7. Extent: How many people will be affected?
The second leading proponent of utilitarianism is none other than John
Stuart Mill. John is the son of James Mill who was the student of Jeremy
Bentham. He was born in Pentonville, London on May 20, 1806. John was given
an unusually extensive education by his father. He learned Greek at three, Latin
a little later; by the age of 12, he was a competent logician and by 16 a well-
trained economist. At 20 he suffered a nervous breakdown that persuaded him
that more was needed in life than devotion to the public good and an
analytically sharp intellect. Having grown up a utilitarian, he now turned
to Coleridge, Wordsworth and Goethe to cultivate his aesthetic sensibilities.
From 1830 to his death, he tried to persuade the British public of the necessity
of a scientific approach to understanding social, political and economic change
while not neglecting the insights of poets and other imaginative writers.
None of Mills major writings remain independent of his moral, political, and
social agenda. Even the most abstract works, such as the System of Logic and
his Examination of Sir William Hamiltons Philosophy, serve polemical purposes
in the fight against the German, or a priori, school otherwise called
intuitionism. On Mills view, intuitionism needed to be defeated in the realms
of logic, mathematics, and philosophy of mind if its pernicious effects in social
and political discourse were to be mitigated.
Another maneuver in his battle with intuitionism came when Mill
published Utilitarianism (1861) in installments in Frasers Magazine (it was later
brought out in book form in 1863). It offers a candidate for a first principle of
morality, a principle that provides us with a criterion distinguishing right and
wrong. The utilitarian candidate is the principle of utility, which holds that
actions are right in proportion as they tend to promote happiness; wrong as
they tend to produce the reverse of happiness. By happiness is intended
pleasure and the absence of pain; by unhappiness, pain and the privation of
pleasure. His essay was actually divided into five (5) chapters: Chapter 1 for his
general remarks, Chapter 2 for his definition of Utilitarianism. In this chapter, he
attempted to reply to the misconceptions about utilitarianism. Chapter 3 of his
work gives emphasis on the ultimate sanction of the principle of utility. In
Chapter 4, Mill talks about what sort of proof is Utilitarianism susceptible to. In
the final chapter, Mill tries to connect justice and utility.
In his essay entitled Utilitarianism, Mill observes that many people
misunderstand utilitarianism by interpreting utility as in opposition to pleasure.
In reality, utility is defined as pleasure itself, and the absence of pain. Thus
another name for utility is the Greatest Happiness Principle. Mill delineates how
to differentiate between higher- and lower-quality pleasures: A pleasure is of
higher quality if people would choose it over a different pleasure even if it is
accompanied by discomfort, and if they would not trade it for a greater amount
of the other pleasure. Moreover, Mill contends that it is an unquestionable fact
that given equal access to all kinds of pleasures, people will prefer those that
appeal to their "higher" faculties. A person will not choose to become an animal,
an educated person will not choose to become ignorant, and so on. Even though
a person who uses higher faculties often suffers more in life, he would never
choose a lower existence, preferring instead to maintain his dignity.
IV. Utilitarianism and the Law
Benthams An Introduction to the Principles of Morals and Legislation
addresses the basis of the legislative process wherein laws are, or ought to be, a
product of the utilitarian calculations of the legislators with utmost consideration
of the possible consequences of the law to the society. Laws should benefit the
greatest number of people in a society while minimizing cost, suffering, or
injustice. In other words, the aim of the law must be to promote the greatest
happiness for the greatest number of people.
Bentham believes that legislation based on utilitarianism is easier to
understand because laws are stripped down to its essence (i.e., maximizing
happiness of the society and minimizing pain) as compared to Common Law
which is written in long-winded prose.
Pleasure and pain can also be used as means or instruments to achieve
the greatest happiness for the greatest number: the law can give rewards and
incentives (pleasure) to promote a particular behavior, or impose sanctions and
punishment (pain) to deter criminals and provide a sense of security to the
As applied to criminal law, Benthams An Introduction to the Principles
of Morals and Legislation espouses the utilitarian theory of crime and
punishment. According to him, crimes can be separated apart from the
theological ideas of vices, virtue, and sin. Crimes are considered as crimes
because the pain is not only limited to that of the victim, but the pain multiplies
to the community, far outweighing the pleasure or profit gained by the offender.
In calculating the utility of an injurious act, Bentham provided a distinction
between evil of the first, second, and third order. The first order refers to the evil
or pain inflicted to the offended party. The second order is when the action
causes an alarm spreads to the community in the form of fear: the pain is
multiplied while the pleasure of the offender is confined to himself. And the
third, if the act goes unpunished and is not repressed, it would result in
a universal and durable discouragement, a cessation of labor, and at last the
dissolution of society. Consequently, this distinction explains why crimes should
be punished: to deter criminals or reform them to prevent the criminal act from
being committed again, which all results in the sense of security (pleasure) felt
by the society.
The concept of deterrence is central to the utilitarian theory of
punishment. Punishment prevents criminal acts by leading other people to
expect that if they act in the same way, they will suffer pain just like the person
punished. This expectation deters them from performing such acts.
Punishment not only results in deterrence but also gives the offender an
opportunity to reform implied that through being punished the offender
recognized his guilt and wished to change. The formal and impressive
condemnation by society involved in punishment was thought to be an
important means of bring about that recognition. Similarly, others may be
brought to awareness that crime is wrong through another's punishment and, as
it were, in a sense, reform before they actually commit a crime.
In that regard, punishment is an evil in itself, because it inflicts pain. The
pain of punishment, however, is outweighed by its good effects, that is, its
deterrent effect on criminals, and becomes, therefore, a necessary evil to
attain a utility-maximizing outcome. Still, the pain caused by punishment should
still be proportional to the pain caused by the offense. According to Bentham,
we should not punish when punishment is:
(i) Groundless: where the act to be punished does not produce pain or
foreclose pleasure. E.g., consensual acts
(ii) Inefficacious: where the punishment will not prevent the act. E.g., ex
post facto laws; children and the insane; unintentional actions, duress.
(iii) Unprofitable: where the punishment has worse effects than the acts
it aims to prevent. Bentham said, If the evil of punishment exceeds the evil of
the offence, the punishment will be unprofitable; he will have purchased
exemption from one evil at the expense of another.
(iv) Needless: where the punishment has worse effects than some other
means of preventing the same acts.
V. Criticisms of Bentham's Act Utilitarianism
Variability of human experience
The utilitarian calculus and utilitarianism itself relies heavily on human
reason. It fails to account variability of the human appreciation of scenarios
that are dependent on past experience. Simply put, one action produces
utility to the one, while it does not to the other. This variability makes
utilitarian calculations erroneous. Karl Marx criticizes Bentham for failing to
take account of the changing character of people, and hence the changing
character of what is good for them.
2. Discrimination and injustice for the minority to satisfy the majority;
disregard for human rights
Utilitarianism, as a form of consequentialism, evaluates acts based on
the outcomes and the maximization of utility. As a result in its emphasis on
consequences of the law, it doesn't provide enough support for individuals'
rights. It ignores the minority, as long as the desired end result of
maximized utility is achieved. Utilitarianism focuses on the aggregate of
pleasure rather than its even or proportionate distribution. It is also
conducive to mob rule.
3. Utilitarian Theory is too demanding
Critics of utilitarianism have also said that the theory is too
demanding. The right act from a utilitarian perspective is always the one
that maximizes utility; so the theory appears to require that we always be
maximizing utility, and critics say that is too much to ask. Spending money
on seeing a movie, for example, does not seem wrong even though
spending that money on saving a life (by giving it to an appropriate charity)
would seem to produce more utility.
According to G.F.W. Hegel, the study of law is an effective means of
social control by offering a combination of the folk-soul and the natural law. He
stressed the point that the views of teleological and historical schools of
jurisprudence on the nature of the law are in agreement: the law is found.
Where and how it is found is the point of difference.
Historical Jurisprudence believes that principles governing human
actions are found in the spirit of the people. While, teleological jurisprudence
feels that these principles come from right reason tempered by justice and
equity. Hegel took view that these principles emanates from folk-soul and folk-
mind. Hegels synthesis is that what historically jurisprudence has discovered
historically, teleological jurisprudence has demonstrated metaphysically.
A. The Folk In The Realm Of Metaphysics
He managed that the metaphysical idea of the folk by the simple
expedience of harmonizing its antithetical aspects. The spirit (geist) and the
mind (gedanken) of the people. Hegel held that they cannot be separated
without being valueless. Thus unification of the folk-soul and the folk-min attains
its synthesis in the national will.
He arrived at this position by means of his complicated but powerful
method of dialectical or evolutive thinking . this system is based on his theory of
identity: All that is rational is real or actual unless it is logical or rational as
well. Hegel held no conflict between reason and reality. For him this is evident
at the level of intellection or understanding. Thus, when opposites are
reconciled by means of the principle of identity, the synthesis becomes
unification of the opposites into a concrete idea. He observed that this system of
thinking cannot be avoided.
Every concept is based on, or is related to, some previous concept as a
matter of strict necessity. But the transformation from concept to concept is
accomplished by means of erasing the opposites which negate each other
reciprocally, which is the thesis and the antithesis involved. He held that each
thesis contains very seed of its antithesis. Out of their identification or
reconciliation a unified idea emerges, the synthesis of the opposites involved.
The synthesis then becomes a concrete thought or another concept. This new
concept will have an antithesis and reconciliation is again necessary.
For example, the concept of form the antithesis of matter or the
formless. Through the principle of identity the difference is erased and the
unification or synthesis emerges which is actualization or becoming. That which
is in a state of becoming actual is the matter and that which finally becomes is
the form. Or to use Aristotles own words everything that changes is something
and is changed by something into some other thing. That by which it is changed
is the immediate mover [the efficient cause;] which is changed is the matter
[the material cause]; and that into which it is changed is the form [final cause].
Hegels own illustration the concept of body has for its antithesis the soul.
Bringing these opposites to identity results in the synthesis of the mind. Each
synthesis or concept becomes the starting thesis of a new triad until a final
synthesis or solution is reached. Herein lies Hegels contribution to Aristotelian
B. Theory Of The Law and State
To reach the position that the law is the idea of right and justice found in
the will of the people, which is the spirit and mind of the people, he started the
thesis that a man is a rational, free willing being. In effect, the means that
mans will can freely pass from subjective to objective phase. In a word, the will
can be actualized. But at this point in the exercise of his free will, and individual
is only thinking of his own personality and advantage without due regard for
others. Since other individuals are similarly engaged with in the free activity of
their own wills, an inevitable conflict arises. The realization of the individual will
meets its antithesis which is the common will that each individuals will is in
reality only a part of collective interest. An individual in society is, therefore,
required to transcend the sphere of is and move into the sphere of the
ought where the freedom of the will is rational to be in accordance with the
common will or collective interest. This bears a similarity to Kants categorical
imperative where the realization of individual rights is valid only when there is a
regard esteem for the rights of others. Thus for both Kant and Hegel, what is
just and what is right is not the province of the separate individual wills but that
of the common will. This will embody in the dictates of lawness, which becomes
the synthesis. Hegel arrived at his idea that the law is found or expressed in the
spirit and mind of the people.
Concerning the state, the same dialectic triad was pursued by Hegel. He
starts with the individual. The individual naturally tends to a group relationship
but at the same time he exists for himself just as the group exists for itself. Thus
arises a conflict. There is need of identification or unification of these opposites.
The synthesis of these opposites is the family, which composed minimum of two
persons of opposite sex who have despoiled themselves of their individual ego
or personality in order to become as one. Thus, the family exists in and for itself.
But the family is the civil society, which arises when several families, whether
related to one another or not, have voluntarily group themselves together for
the satisfaction of some common needs and protection of some common but
relatively wider interests. Many legal philosophers have stopped at this point
and considered this phase to mean either the state or the legal order. But for
hegel, civil society is not the end or the unified idea. For him, the synthesis is
finally realized through the individualization of the civil society that is the
development of the several means with which to satisfy human needs, the
administration of justice, the creation of positive law defining mutual relations of
individuals by the expedience of incentives or sanctions. For Hegel, it is the
individualism of civil society that points to the fuller realization of the group into
a state. When civil society became bound by common center of interests,
purposes, and institutions, the State came into being as the highest possible
type of institution for expressing both the moral and political life of the people. It
is the powerful synthesis of family and the society the whole or totality of the
A. Neo-Hegelianism: Defined
Neo-Hegelianism refers to several schools of thought associated with
and inspired by the ideas of Georg Wilhelm Friedrich Hegel, a German idealist
philosopher active around the beginning of the nineteenth century. During the
late nineteenth and early twentieth century, many European and American
philosophers revived interest in aspects of Hegel's works.
Many philosophers are referred to as Neo-Hegelians in a general sense,
not as advocates of Hegel's thought, but as those who received considerable
influence from Hegel's thought. They admit of differences among themselves
regarding certain essential points and come not to identical views in regard to
the nature of Reality, though they are all ultimately idealists of the Hegelian
type in one way or the other.
The general position of the more prominent among the Neo-Hegelians is
that mind and matter are correlative aspects of Reality and do not have
independent existence. The Absolute, they hold, is a harmonious unity in which
all contradiction is reconciled, transmuted and absorbed. The subject and the
object have a meaning only in so far as they are related to each other as
aspects of this universal whole. The perception of objects by the subject is not
really the movement of thought outside itself but the recognition of its own
universal nature in regions which remained hitherto undiscovered, and thus
perception constitutes a kind of self-expansion of the subject. Life's unrest is
really a spiritual unrest, an indication of the need to realize what one is not now
actually but is potentially, to aspire to experience the Absolute. Every finite
entity tries to grow towards its self-completion in this highest being. This unrest
explains all the activities and processes of the universe at all times. The
yearning for the whole cannot cease in the parts, for their true self is the whole.
B. The Misunderstanding
In Hegels philosophy, the state is considered as the only institution
where the individual can achieve reality and personality. The state assumes the
protection of human rights and freedoms. And this desirable condition of social
life is not possible where freedom or license prevails.
Hegel was by no means placing the state above the individual. But his
preference for the national will had led others to unwarranted formulation of
contemporary theories of absolutism leading not only to the ascendancy of the
state over the individual but also the latters unqualified abandonment to the
There is a famous sentence in Hegel's Lectures on the Philosophy of
History that has been badly translated into English, so that it fits with the old
prejudice that Hegel identified the State with God. The bad translation is: "The
State is the march of God through history". The actual correct translation,
corresponding to the German text, is: "That the State exists, is like the march of
God through history". From the surrounding text, it is clear that Hegel is not
affirming that the State is God. He is just using a theological metaphor to
explain that the State represents the incarnation of human freedom in a set of
institutions, just like Christ represent the incarnation of God in our human
It is true that Hegel attributes to the State an important function in his
political philosophy. He considers the State to be the highest incarnation of the
"objective spirit", the highest form of institutionalized freedom ever reached by
man. It is important to note that Hegel considers a State to be rational, insofar it
is also free: the more a particular State is free, the more it is closer to the
concept of State itself.
The fact that State is so important to Hegel does not diminish the crucial
function of the previous moments of the objective spirit, i.e. family and civil
society. Hegel never proposes to "swallow" and annihilate them in the State. The
existence of civil society as such is an essential feature of modern times. As far
as international politics is concerned, Hegel was well aware that any given State
was limited by its self-interests, and that those interests were at odds with those
of other nations.
C. Totalitarian Formulation
However the neo-Hegelians of the totalitarian shade seized the Hegelian
idea of the producing agency of the law and the state and skillfully utilized it as
of the philosophy of unmitigated law-power in the hands of an individual the
leader, and the consequent complete surrender of the people to that power.
The neo-Hegelians, who are totalitarian thinkers, regard the law as the
organized power or measure of dictatorship of the leader, where there is
absolutely no separation of powers of government. In effect, this means that the
law and the will of the leader are one and the same. The many-sided idealism of
Hegel envisaging the combination of the soul and mind of the people has led to
separate and frequently distorted developments of the Hegelian system. It
made a very strong appeal to the socialists, like Karl Marx, although max made
it appear that it was Hegel who was indebted to him. Marx saw the antithesis of
the present social make-up: bourgeoisie proletariat; just it was in ancient times
between patricians and plebeians, and in the middle ages between vassals and
serfs. It continued as the basis of the Russian communist doctrine in the writings
of Nicolai Lenin and his followers.
This ruthless view of the nature of the law is nowhere reflected in bolder
relief than in Hitlers liquidation of those whom he considered as his enemies
and, hence, enemies of the German Reich. Their execution was taken by Hitler
to be an act of self-defense of the state for in that hour I was responsible for
the fate of the German Nation, and, thereby, the Supreme Law Lord of the
German people But bearing on the total collapse of the rule of law under the
Nazi regime is the resolution of the Greater German Reichstag, dated April 26
1942, which reads in part:
There can be no doubt that the Fuhrer must, during the
present time of war in which the German nation is engaged in a
fight for life or death, have the right which has been assumed by
him, to do everything that serves the achievement of victory or
contributes thereto. The Fuhrer, therefore, must without being
bound by existing rule of law in his capacity as Fuhrer of the
nation, as Supreme Commander of the Armed Forces, as Chief of
the government and as supreme possessor of executive powers,
as supreme lord of the Judiciary and as Fuhrer of the party at
any time be in position to order, if necessary, any German be
he a common soldier or officer, low-class or high-class officer or
judge, executive or ministerial functionary of the party, laborer
or employer with all means which he deems suitable, to fulfill
his duties, after conscientious examination, with the punishment
which is due to him, without regard to so-called vested rights,
and to remove him from office, from his rank, and his position
without the institution of prescribed procedures.
This totalitarian concept of the law became possible because the
combination of the spirit and mind of the people was made to coincide with the
national aspirations of a particular nation. Germany cultivated to the fullest
extent the German volksgedanken of the alleged superiority of the Aryan race.
Thus the German Neo-Hegelians demanded for the unqualified abandonment of
the individual to the German Reich. Hitler and his Nazi, course, also turned to
Nietzches superman philosophy to support their policy for world conquest.
D. In the Philippine Setting
Rights of the individuals are expressly recognized in the Constitution
through the Bill of Rights. It acts as a safeguard against the arbitrary exercise of
the state power against the citizens.
In the Philippines, the Supreme Court in some cases has rules in a
manner diametrically opposing such philosophy. In Rodriguez v. Gella
, 92 Phil.
603 (1953), the court held that much as it is imperative in some cases to have
prompt official action, the deadlocks in and slowness of democratic processes
must be preferred to concentration of powers in any one man or group of men
for obvious reasons In addition in the case of Surigao Consolidated Mining Co.,
Inc. v. Collector of Internal Revenue
, 84 Phil. 492 (1954) the Supreme Court
held that it is dangerous to permit the chief executive to change the
jurisdiction of the courts by executive orders, to vest him with a power which he
does not have.
However, sometimes we allow such totalitarian approach and grant the
state and its agents powers which are beyond what they should possess and
51 Eulogio Rodriguez, Sr., et al. vs Vicente Gella, et al. GR
No. L-6226, February 2, 1953
52 Surigao Consolidates Mining Co., Inc. vs Collector of
Internal Revenue and Court of Appeals GR No. L-14878,
December 26, 1963
exercise. In the case of People v Malmstedt, the Supreme Court upheld the
conviction of the accused regarding to the possession of prohibited drugs. This
ruling is not without opposition within the Supreme Court itself. Justice Cruz,
strongly opposed such conviction because conviction was in violation of the
rights of the people against unreasonable searches and seizures. He remarked
that the fruit of the poisonous tree washed the tree clean. The racionization of
the dissenters are highly favored because it is consistent with the end sought to
be prevented by the Constitution itself.
Reassessment of the teleological perspective was brought about by the
dramatic events that transpired in history, example of which is occurrence of
two wars within a period of only twenty-five years and the ascendancy of violent
radicalism. This reassessment of defining the structure and content of the legal
order is the origin of modern teleological analysis.
As understood as a whole, modern teleological analysis says that the
law is not based on a rigid formula or fix rule but on changing factors or
conditions brought about by free willing individuals in a changing society.
In Modern Teleological Perspective, there are three approaches. First is
the JURISTIC APPROACH, the second one is the ETHICAL RELATIVITY and the last
In Greco view, Roman view and the Aquinian View, the postulation and
development of the concept of law started from the moral nature and good faith
of man. However, this view was changed by Josef Kohler, a German Jurist, and
Sidney Hook, an American Philosopher. In this Juristic Approach, the changing
conditions of time, place and people should be considered in the knowledge of
right and wrong (or good or evil). Law must be viewed from a relative standpoint
and should be conditioned by the civilization in which it arises. Josef Kohler
noted that modern teleological analysis relates the purpose of the law to the
universal idea of human civilization.

Ethical relativity was primarily based on Josef Kohlers Ideal
Tendencies theory and Sidney Hooks Primary Desires theory. These two set
the trend in modern teleological thinking and analysis in matters pertaining to
the legal order away from the ideal absolute or absolute ideal towards the
notion that all law, good, and right are relative to other transitory values and
Josef Kohler stated that there is no ideal absolute or absolute ideal, no
absolute formula that is common for all human affairs, human rights, human
obligations, social interests and values, and the like. While he agrees that
philosophy of natural law might supply a valid standard, such standard will have
to vary and change from time to time. He argued that the national oblutiacs
(opinions, beliefs, longings, usages, traditions, idiosyncrasies, arts, customs and
superstitions) cannot be ignored. However, they cannot be solely relied upon
either. He postulated that there is no absolute formula to determine the
different aspects of legal ordering of society, and that they have their own
respective ideal tendencies, not the same to others.
On the other hand, Sidney Hook stated that what is right or good really
depends on the primary desires of the people, which is, constantly in flux. He
further argued that the problem of what is right and what is wrong is to be
conceived as the equilibration of interests and their adjustments to
environment. The relativity of our ethical beliefs is evidence that good and bad
depends upon our primary desires which change the qualities of good and bad
as our primary desires change.
These two ideals, when taken altogether, gave us the notion that the
conditions of time, place, and people have a great deal to do with the
determination of what is right and wrong, good or evil. Modern Teleological is
not much with the intellectual meaning or substance nor with the historical
development of the law as it is with the relativity of justice as a formula for both
national and international legal orders. Thus, for modern teleological
jurisprudents, the factors involved in the legal ordering of a community are not
rigid absolutes but factors with variable or changing contents. This ethical
relativity Approach of Modern Teleological is true especially in cases involving
the clear and present danger rule, as this standard is not rigid and inflexible
rule but a relative one.
This approach refers to the idea that when an act or conduct and its
consequence are in conformity with the interest of the state, then they are
considered as good and just. The interest of the State has become the cardinal
standard or measure of actions and ideas in the legal order, especially with
regards to judicial interpretation and review of cases involving government and
governmental problems.
An advocate of this idea is David Hume, who is a Scottish
Philosopher. An act or idea is either approved or disapproved on the basis of
public benefit from it. And it can only be agreeable to the members of the
community as a whole when it is not destructive of the state since the latter is
the recognized protector of the liberties and of the people. Justice is related to
the phenomenon of the interest of the state and makes it no more than a social
virtue. David Hume also posited that justice may or may not be endowed with
fair equality. That which fulfils the interest and objectives of the State as a whole
is justified and will be enforced by its coercive power, even though it may be
unfair in individual cases. An act may be just but not fair in one occasion, and in
the other, it may be unjust but fair.
David Hume also stated that reason is and ought only to be the slave of
passions. Reason recognized the utility but passion provides the compelling
force of all action. If this is so, then the solution of the problem of what is right
and just cannot be derived from the reason because mans reason can dwell on
and discover only what is, that is to say by deduction from premises and
observation of acts and events happening before him. His view is essentially an
attempt to elude or avoid the ancient preference of relating ethics with the
concept of justice.
Navarro vs. Villegas
This is a petition for mandamus to compel Mayor of Manila to issue a
permit which will enable a group of students to hold a public rally at Plaza
Miranda, again. But the respondent Mayor Villegas denied such issuance
alleging that such activity of said students could result to disorder. Petitioner
then claimed that his Constitutional right to freedom to peaceably assemble
and petition Government for redress (as provided for in Art. III, Sec. 4 of
1987 Constitution). Also, petitioner alleged the case of Primicias v. Fugoso
(80 Phil. 71), where denial of permit is unconstitutional. And that respondent
can only regulate use of public place, and not prohibit. However, the lower
court affirmed the denial of permit.
Whether or not the denial of issuance of permit is unconstitutional
The Supreme Court denied the current petition alleging the clear and
present danger rule for fear of public disorder as a result of speeches to be
delivered at the intended assembly of the students.
The case at bar, it was during the period when student activist
movements were sometimes bloody, aggressive and violent. And every
time such assemblies are announced, the community is placed in such a
state of fear and tension that offices are closed early and employees
dismissed, storefronts boarded up, classes suspended, and transportation
disrupted, to the general detriment of the public. There is already a clear
and present danger for the Respondent to protect the interest of the public
unlike in the case of Primicias where the supposed danger apprehended was
not imminent and the evil to be prevented was not a serious one. The
Supreme Court in ruling both the cases adjusted to the environment and
time when of occurrence of the alleged event. There is no absolute ideal to
solve both cases of similar situation when the environment and time differs.
The Sociological Perspective, The Functionalist School, and The Jural Postulates
in Legal Philosophy
Sociological perspective
1 Is one of the main paradigms of sociology
53 Navarro v. City Mayor Antonio Villegas, GR. No. L-31687,
February 26, 1970
1 Helps us to see general social patterns in the behavior of particular
individuals and offers insights about the social world that extend far
beyond explanations that rely on individual quirks and personalities
Three primary Theories of Sociological Perspective
Sociological perspective is the lens that anindividual chooses to view
the scope of society from EITHER:
1. Symbolic Interactionist Perspective
2. Conflict Theory Perspective
3. Functionalist Perspective
1. Symbolic Interactionist Perspective
1 This perspective focuses on symbols that can be found in society, what
those symbols mean to each of us, and how those symbols affect the
way we interact with others in our society
2. Conflict Theory Perspective
1 It is a more negative approach to sociology. Conflict theory focuses on
how certain parts of our society are in conflict with each other, and how
the "elite" members of our society oppressed the lower class for their
own gain.
3. Functionalist Perspective
1 It explains that each part of society is dependent on other parts of
society and vice versa. All aspects of our society are interdependent,
and rely on each other to function.
1 Functionalism is a very passive way to look at sociology. It does not
challenge the way things are, but in fact believes that whatever is
happening in society is supposed to happen.
Sociological perspective in Legal Philosophy
1 It seeks to analyze the operation and effect of law in terms of the
purposes and interests of the society
----the law is a means to satisfy the maximum wants with minimum conflict
(mediation and negotiation being the in thing nowadays) this is called Social
1 Functionalist School in Legal Philosophy
1 Reaction to Teleological and Positivist Jurisprudence
1 Criticisms on Legal Theories based on Abstract Values
The philosophy of the folk souls as basis for ideals and
valuations is considered as unscientific because off oblutiacs
of the people tend to stifle and isolate rather than stimulate and
broaden the formulation of legal rules for the ordering of society
1 Criticism on Legal Positivism
The absolute reliance of legal positivism on sanctions as the
prime mover in society.
Impotence of legal positivism to cope with the lawlessness of
positive law or the lawlessness in statutory form.
The law is fixed by the factors of expediency and convenience
Functionalist School/ Perspective
1 This school considers the law as a means to balance the different
interests in society.
1 Functionalist explanations are frequently invoked in positive legal
1 When we ask the question, "Why does the law have such and such
content?", the answer frequently is, "Because such and such a rule
functions in thus and so way."
1 Functional jurisprudence cannot overemphasize the idea that courts are
not to think exclusively in terms of rights and obligations but should act
in terms of the social interests as well.
1 The law, according to this perspective, is viewed as a social mechanism
for the adjustment of conflicting or overlapping interests.
1 It is continuously engaged in the process of reconciling, regulating or
settling conflicting or overlapping wants, claims and demands with an
eye to secure the maximum number of the social interests with the
minimum of friction and waste. This is done through the application of
Social Engineering
Social Engineering
1 The minimizing of prevention of further conflicts or frictions on the
reality that balanced or compromised interests are more likely to remain
in a state of social equilibrium and thus more lasting and enduring than
those which are allowed to survive at the total expense of others.
1 Done at the point where it will least prejudice or disturb the scheme of
social interests.
1 Once an interest or demand is recognized, it is then protected either as
a legal authority, a legal claim or a legal power or it may be recognized
a legal exemption, a legal privilege or a legal immunity.
1 The subordinated demand or interest on the other hand responds either
as a legal responsibility, a legal duty or a legal liability or it may respond
as a legal debility, a legal inability or legal disability
The Problem of Presentation of Conflicting Interests
1 When a conflicting interests are compared for the purpose of adjustment
great care should be taken so that conflicting interests belonging to the
same class are not stated in unequal terms or levels.
1 Simplicity of expedience or by putting conflicting wants, claims and
demands in terms of social interests when actually they may only be
competing private interest or public interests
1 Putting or holding a particular interest to the contrary, opposed to, or
arrayed against a social interest when the former is in reality only in
conflict with another private or public interest
Principles of Functional Perspective
1 The legislative body intended its enactments to be in accordance with
the social interests and national policies from this arises .
1 The legislative body intends right and justice to prevail in case of doubt
in the interpretation or application of its enactments
1 Social interests and public policies are not limited to matters which are
declared in the constitution, legislation or judicial decisions. These
documents are oftentimes insufficient or inadequate to resolve the
manifold conflicts of interests.
1 Social interests and national policies intend extend to matters which
although not expressly stated, are within the reason and underlying
principles delegated by constitution, legislation or judicial decisions
Types of interests
1 Interest is either a claim, power, privilege or immunity belonging to or
enjoyed by a person or a group of persons
1 Individual interests is a demand involved in or looked at from the
standpoint of individual life immediately as such categorized into
interests of personality, domestic interests and interests of substance.
1 Public interests is a demand asserted by society as a distinct legal entity
classified into Interests of the state as a juristic person and interest of
the state as the guardian of the social interests.
1 Social interest is the greater advantage or the title or lever of the entire
civil society for the promotion of the general welfare. They are the
concern of everybody for they are the community of conscience.
1 National policy is the basic manifestation, evidence or expression of
some social interest
Means of Securing Private interests
1 Postulation of the concept of civil personality as distinguished from
human personality
1 Conferring upon persons or institutions on whom civil personality has
been attributed certain legal exemptions legal privileges and legal
1 Imposing upon person or institutions on whom civil personality has been
attributed certain legal responsibilities
Means of securing Public interest
1 Conferment of juristic personality to the state and other public
1 Conferment of juristic personality to the state and other public
1 Imposition on the members of society the correlative obligations of the
rights enjoyed by the state and other public corporations.
1 Recognition of certain processes for the vindication of the public and
social interests
Categories of Social Interests
1 General Security
1 Maintenance and protection of social institutions
1 General Morals
1 Conservation of Human Resources
1 Conservation of Natural Resources
1 General Health
1 Individual Life
1 Social Life
1 General Progress
1 General Aesthetics
Assessment and adjustment of conflicting interests
1 One view is that the Court be the proper public agency to perform the
task of assessing and adjusting conflicting or overlapping interests and
purposes in the first instance
1 Social Engineering or the determination of what is necessary for the
good of the collective polity as the prerogative and function of the
people themselves
Jural Postulates
1 Or rules that, according to former Harvard Law School dean Roscoe
Pound, reflect shared needs common to the members of society and
form the basis of all law in advanced societies. (A Survey of Social
Jural Postulate I
1 In civilized society men must be able to assume that others will commit
no intentional aggressions upon them.
Jural Postulate II
1 In civilized society men must be able to assume that they may control
for the beneficial purposes.what they have discovered and appropriated
to their own use, what they have acquired under the existing social and
economic order.
Jural Postulate III
1 In civilized society men must be able to assume that those with whom
they deal in the general intercourse of society will act in good faith.
Jural Postulate IV
1 In civilized society men must be able to assume that those who engage
in some course of conduct will act with due care not to cast an
unreasonable risk of injury upon others.
Jural Postulate V
1 In civilized society men must be able to assume that others, who
maintain things or employ agencies, harmless in the sphere of their use
but harmful in their normal action elsewhere, will restrain them or keep
them within their proper bounds.
Who is John Dewey?
Born in October 20, 1859, John Dewey was the child of Archibald
Sprague and Lucina Rich. He graduated with the degree of Philosophy from
University of Vermont under the titulage of HAP Torrey in 1879. After five years,
he then became a Doctor of Philosophy having such degree from Johh Hopkins
54"John Dewey:Philosophy of Education." John Dewey: Philosophy of
Education. N.p.,
University. From then on, he started his career by being an Associate Professor
at the University of Michigan. He transferred to Chicago in 1886. He became
the Head of the Department of Philosophy at University of Chicago, where he
found and instituted the School of Education at University of Chicago. In 1904,
Dewey left Chicago and worked as Professor of Philosophy and Lectureship in
Psychology at Columbia University. He published works such as "Democracy and
Education" (1916), "Logic" (1938), and "Experience and Education" (1938). As a
scholar in the academe and prime mover in philosophy and education as given
the title Father of Progressive Education at his time, he did not seclude
himself from the society but instead, he was very vocal and outspoken with
regard to issues about education, politics (domestic and international) and other
social movements. His efforts towards womens suffrage, humanistic
movements, world peace, educators rights and other socialized government
projects were evident.
Overview of Modern Legal Realism
Before dealing with the specifics of John Deweys concept and influence
over modern legal realism, it would be important to have an overview of modern
legal realism.
The evolution of the school of modern legal realism emanated from the rising
number of sociological and functional schools. Modern legal realism is also
known as social legal realism, American legal realism, theory of ethical and
legal pragmatism and experimentalism. Some of its famous proponents were
Sanders, Storm, Holmes and Dewey. Here, the law is regarded aspragmatic,
55Laserna, Jr., M.E. (1998). The Historical School of Legal Philosophy: Its Relevance to
the Philippines. Retrieved from http://attylaserna.blogspot.com/2007/10/legal-philosophy-
Powerpoint.Web. 31 Jan. 2013.
empirical, flexible, dynamic and scientific.In modern legal realism, the judicial
interpretation is given importance.
Basically, in modern legal realism, the source of law is the social
experience of the people and not any metaphysical source. Congressional acts
are also regarded as the source of law. The definition and application of law is
said to depend upon the judiciary. It believes that the law is what the courts
say it is. Unless a case arises out of the interpretation and enforcement of a
written law, there is no law because there is no judicial interpretation. A law is
merely a law on paper unless a case arises to interpret it.
In this philosophy, the end of law is "social contentment". It is an
instrument of social control. It focuses its study on "the law that is", not on "the
law that ought to be."Moral norms and natural law postulates do not decide
court cases or determine social behavior. As stated earlier, the law is what the
courts say it is and how the courts interpret and apply it (jurisprudence). That is
the true source of law and the nature of law.
In a nutshell, considering the means, application and end of law in this
Modern Legal Realism theory, the factors to be considered are: 1) power and
economics in society; 2) the persuasion and characteristics of individual judges;
3) society's welfare; 4) a practical approach to a durable result ; and 5) a
synthesis of legal philosophies. The power and economics in society refer to the
interest of the general and not just folk-soul or pressures coming from the
elites. As regards the individual judges, it goes to show that the fact-finding task
of the judge is a challenging one as being a real person and imperfect human
being, the judge is bound with biases and prejudices. Despite being affected by
all kinds of metalegal stimuli and other sociopsychological presusres, he must
take into considertaion the societys welfare by applying practically the
synthesis of legal philosophies to achieve durable results. In fine, law is an
evolutionary process which balances the interests and creates expediency and
convenience in society.
Dewey on Law
According to Butler, and evidently, Deweys concept of law unites with
his philosophy of democracy. Ultimately, the standard or criterion used to
evaluate the legal practice would be an important aspect in the philosophy of
law. Dewey claims that legal philosophies are products of their time and place
and the issues relevant to that specific context. It follows that law can be
discussed only in terms of the social conditions in which it arises and of what it
concretely does there. Apparently, Deweys concept is that the law is social in
origin, in purpose or end and in application.
Dewey identified the sources of law through his critiques of legal
positivism and natural law. In contrast with positivism, Dewey argues that there
are plural sources of law. In his legal theory, he ruled out any search for a
unifying rule of recognition. He describes law as emanating from the minor laws
of subordinate institutions- institutions like the family, the school, the business
partnership, the trade-union or fraternal organization. Moreover, he emphasizes
that law arises out of other habits, traditions, and customs within society. Law is
a type of custom and it is made up of the concepts it inherits from earlier
decisions .However, even though there are numerous sources, they are not
equal. For instance, natural law, for Dewey, this means the given, the status
quo. He pinpoints that the effects of any theory that identifies intelligence with
the given, instead with the foresight of better and worse, is denial of the
function of intelligence. Furthermore, for Dewey, this illustrates that in law, the
old is never annihilated at a stroke, the new never a creation ab initio. It is
simply a question of morphology. But what controls the modification in the
56 Butler, B. E. (2010). Democracy and Law: Situation Law within John Deweys
Democratic Vision. Etica and Politica.
historic continuity is the practical usefulness of the institution or organ in
question. Also, insights of the Dewey about sources of law emanated from his
insights about democracy. For him, democracy, to be realized and achieved,
requires that a social institutions be view for their pluristic values and
decentered picture.
Generally, for Dewey, the area of application of the law shall be understood in
terms of consequences and not intrinsic essences. This is more focused on the
practical functions of the law. Just like his general concept, he believes that the
application of law depends upon the social condition in which the law arises. It
all goes back to his concept of context. He also believes that the legal
profession must always be sensitive to the greater goals of society. Also, to
understand his view on area of application of the law, Deweys philosophy of
democracy that it can be served only by the slow day adoption and contagious
diffusion in every phase of our common life of methods that are identical with
the ends to be reached must be analyzed. As stated in the source of law, such
plural sources create multiple avenues so as to allow information to be
communicated and solutions to be proposed. Such challenge for the human
society then transcends and creates constructions of symbols that convey
common or mutually understood meanings.
For Dewey, the purpose of law is regarded as one of the multiple
social institutions that might further the social goal of a truly democratic society.
Moreover, according to Butler, Deweys pluralist and flexible concept of law
seems to be attractive in a world where technological changes and conflicting
needs and values are the norm.
For Dewey, the end of law is social contentment. It is the about of how
and why legal force will be used in society. His idea of force contemplates the
utilization of force in different ways. Law, when properly utilized, can be thought
as describing a method for employing force economically, efficiently, so as to
get results with the least waste. Law should be justified, therefore, not by its
lawfulness, but by whether or not it is an effective and economical means of
securing specific results. Ultimately, for him, there is an external standard which
judges the use of force within a legal system. In Deweys case the standard is
that of a democratic society and the values this entails. This conclusion entails
that the legal profession cannot be fully justified by appeals to an internal
perspective, but must always be sensitive to the greater goals of society.
On the basis of two warrants issued by the RTC of QC, the
offices of the Metropolitan Mail and the We Forum were search
and printing machines, paraphernalia, motor vehicles and other
articles used in the printing, publication and distribution of the
newspapers as well as papers and other literature seized on the
ground that they were used in the commission of the crime of
subversion. Petitioners brought and action to annul the warrants
and compel the return of the things seized
The petitioners filed a writ of injuction so as to render the
warrants invalid.
The respondents contended that such petitioners action was
wrong. As per the Rules of Court, a motion to quash must be
filed first.
(Constitution over the Rules of Court)
In our Resolution dated June 21, 1983, respondents were required to answer
the petition. The plea for preliminary mandatory and prohibitory injunction was
set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the
Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners'
prayer for a writ of preliminary mandatory injunction, manifested that
respondents "will not use the aforementioned articles as evidence in the
aforementioned case until final resolution of the legality of the seizure of the
aforementioned articles. ..."
With this manifestation, the prayer for preliminary
prohibitory injunction was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that
petitioners had come to this Court without having previously sought the quashal
of the search warrants before respondent judge. Indeed, petitioners, before
impugning the validity of the warrants before this Court, should have filed a
motion to quash said warrants in the court that issued them.
But this
procedural flaw notwithstanding, we take cognizance of this petition in view of
the seriousness and urgency of the constitutional issues raised not to mention
the public interest generated by the search of the "We Forum" offices, which
was televised in Channel 7 and widely publicized in all metropolitan dailies. The
existence of this special circumstance justifies this Court to exercise its inherent
power to suspend its rules. In the words of the revered Mr. Justice Abad Santos
in the case of C. Vda. de Ordoveza v. Raymundo,
"it is always in the power of
the court [Supreme Court] to suspend its rules or to except a particular case
from its operation, whenever the purposes of justice require it...".
Ultimately, Deweys view of law emanates from his insights about
democracy. He argues that law is social in origin, in purpose or end, and in
application. It is historically based and yet contextually varied. Indeed, law as an
institution and as a concept cannot be set up as if it were a separate entity, but
can be discussed only in terms of the social conditions in which it arises and of
what it concretely does there. Finally, for Dewey, because his theory of law is
decentralized and flexible it can allow for multiple sources for law and, further
the development of quite new organs of lawmaking.
American Legal Realism
What is Legal Realism?
1 It is a theory that judges may decide cases by taking into account
factors other than pre-existing law.
1 It is an approach to think about and studying results of the application of
law, and subsequent social engineering through systematic and
purposeful change of law.
1 It is not only concerned with the origins and bases of law, but also with
its practical application and results.
1 Reaction to Formalism
1 The legal realist movement was inspired by Oliver Wendell and John
Chipman Gray Holmes and reached its apex in the 1920s and 30s.
1 The realists eschewed the conceptual approach of the positivists and
naturalists in favor of an empirical analysis that sought to show how
practicing judges really decide cases
Legal Realism: A reaction to Formalism
1 A legal system cannot be deduced from general propositions
1 Judicial decisions are cloaked in the language of logic, but what lies
beneath the legal reasoning are beliefs about the relative worth or
value of different aspects of the case at hand, and sometimes these
beliefs are not fully conscious.
1 The purpose of the law: was the deterrence of undesirable social
1 If judges differ in opinion: When judges disagree, it is not just a matter
of one judge having reasoned incorrectly, as if he or she has simply
miscalculated a column of numbers.
1 Judges must inevitably take account of social considerations, including
economic considerations, in forming their legal opinions.
1 Born March 8, 1841 in Boston, Massachusetts.
1 During his senior year of college, he joined that Massachusetts military
for the American Civil War.
1 Holmes went to Harvard to study law.
1 Admitted to the bar in 1866
1 Associate Justice of US Supreme Court in December 4 1902 January
12, 1932
What is law according to Holmes?
1 The law is nothing but a tool for predicting what judgments a judge and
jury will make.

1 The law is no more than whatever a particular judge declares it to be in
a specific case.
1 The law is a tool for achieving social ends, so that to understand law
requires an understanding of social conditions.
Holmes: The life of the law has not been logic; it has been experience.
(The Common Law, 1891)
1 The source of law is a judicial decision.
1 Judges decide cases on the facts, and then write opinions afterward
presenting a rationale for their decision.
1 A judge is obliged to choose between contending legal theories, and the
true basis of his decision is necessarily drawn from outside the law.
(The Path of Law, 1897)
1 1. Confounding Law and Morality
1 2. The Fallacy that the only force at work in the development of the law
is logic.
I. Confounding Law and Morality
- "When I emphasize the difference between law and morals I do so with
reference to a single end, that of learning and understanding the law.
- As a Legal Duty:
You have a duty to do x = if you do not do x, you will be
- As a Legal Right:
You have a right to do x = if you do x, you will not be
The Bad Man Theory
1 As a device in understanding the law
BAD MAN material consequences
Thus, the bad man he does not care two straws for morality but he only wants
to know (and that's why he hires a lawyer) what the courts are likely to do in
fact, because, "The prophecies of what the courts will do ... are what I mean by
the law"
What constitutes the law?
- Law from the textbooks: It is a system of reason, that it is a deduction
from principles of ethics or admitted axioms or what not, which may or
may not coincide with the decisions.
- Law according to the Bad Man:
II. The Fallacy: That the only force at work in the development of the
law is logic.
1 Law is a matter not capable for exact quantitative measurement.
Behind the logical form lies a judgment as to the relative worth and importance
of competing legislative grounds, often an inarticulate and unconscious
judgment, it is true, and yet the very root and nerve of the whole proceeding".
"The prophecies of what the courts will do... are what I mean by the law."
1 The law consists of prophecies as to how the public force (as directed by
courts) will act.
"General propositions do not decide concrete cases. The decision
will depend on a judgment or intuition more subtle than any
articulate major premise.
The essence of law is its being the product of judcial process.
This is because is believes that:
1 Law and society are always in flux, and courts adjudicate with an eye
to laws practical effects.
Example: Buck vs. Bell
1 Carrie Buck is a feeble minded woman who was committed to the State
Colony Epileptics and Feeble Minded. She is the daughter of a feeble
minded mother in the same institution, and the mother of an illegitimate
feeble minded child. Because of such, she was deemed to be probable
potential parent of socially inadequate offspring, and the doctors saw
the need to sterilize her. She challenged the states attempt to forcibly
sterilize her.
1 In upholding the validity of sterilization law over the objections of the
pro-life supporters Holmes insisted that:
It is better for all the world if, instead of waiting to execute a degenerate off-
springs for crime or to let them starve for their imbecility, society can prevent
those who are manifestly unfit from continuing their kind. The principle sustains
compulsory vaccination is broad enough to cover cutting of the Fallopian tubes.
Three generations of imbeciles are enough.
1 American scholar of property law and professor at Harvard Law School.
1 His specialty was real Property Law.
1 established his law practice in Boston, Massachusetts where he founded
the law firm Ropes & Gray, with law partner John Codman Ropes.
1 He received honorary Doctor of Laws degrees from Yale University in
1894, and from Harvard in 1895.
1 His best known work is his survey of the common law: The Nature and
Sources of the Law
1 He was half-brother to U.S. Supreme Court justice Horace Gray.
Law according to GRAY
1 defines law as the "rules which the courts law down for the
determination of legal rights and duties" or "the rules of decision"
which the courts lay down.
1 the law consists of judicial interpretations that obligate other legal
actors, including lower courts.
1 form of judicial supremacy
1 law making occurs anywhere but in the court-room.
1 judge-made rules constitute the law.
GRAYS concept of Legal Realism
The Law of the State or of any organized body of men is composed of the rules
which the courts, that is, the judicial organs of that body, lay down for the
determination of legal rights and duties.
For an instance:
1 A man should be obliged to make gifts which he has promised to
make, yet if the courts of a country will not compel him to keep his
promise, it is not the Law of that country that promises to make a gift
are binding.
Judges As Discoverers Of The Law
1 The rules followed by the courts in deciding questions are not the
expression of the State's commands, nor are they the expression of the
common consciousness of the people, but, although what the judges
rule is the Law.
Only What The Judges Lay Down Is Law
1 The rules laid down by the judges correctly states the Law, but it denies
that it is Law because they state it.
1 All the law is judge-made law because all judicial decision
always involves some element of interpretation.
1 Where there is no governing statute, precedent or custom, there
will be a gap in the law that remains to be filled in by the judges.
1 The Core Claim of Legal Realism would primarily focus on the stimulus
of the facts of the case, rather than the legal rules and reasons.
1 The Legal Realist would query on :How judges actually decide on a
case? thereby focusing on their claim in Judicial Law-Making.
1 The law really exist in court and adjudication
1 The test of law is the decision of the judges
1 Written rules do not determine what the law is. WHATEVER GETS
1 Importance of stare decisis
1 Committed to Science and Empiricism
1 Lawyers Perspective: BAD MAN
1 Law is not coherent
Critical Legal Studies Movement
Critical theory
Has as its aim the study of culture in order to identify ways in which a culture
creates and reproduces social barriers (typically along lines of race, class,
sexuality or gender).
An intellectual movement whose members argue that law is neither neutral nor
value free but is in fact inseparable from politics.
Furthermore, the theory holds, this political bias is evidence that even though
the "little guy" might occasionally use the law as a means by which to bring
about social justice the law is completely stacked against the everyman and is
specially designed to allow the rich and powerful to ignore average people's
Many of its ideas found their way into the real world and currently have some
influence in the area of sexual harassment law.
"If there is any principle of our Constitution that more imperatively calls for
attachment than any other it is the principle of free thoughtnot free thought
for those who agree with us but for the thought that we hate."
Oliver Holmes Jr.
These include:
A first theme is that contrary to the common perception, legal materials (such
as statutes and case law) do not completely determine the outcome of legal
disputes, or, to put it differently, the law may well impose many significant
constraints on the adjudicators in the form of substantive rules, but, in the final
analysis, this may often not be enough to bind them to come to a particular
decision in a given particular case.
Secondly, there is the idea that all "law is politics".
A third strand of the traditional CLS school is that far more often than is usually
suspected the law tends to serve the interests of the wealthy and the powerful
by protecting them against the demands of the poor and the subaltern (women,
ethnic minorities, the working class, indigenous peoples, the disabled,
homosexuals, etc.) for greater justice.
CLS and Its Alternative View of the Law and Society
CLS argues that there is no natural or inevitable form of social organization, and
there is by no means agreement between CLS scholars as to what form society
and its laws should take. CLS thus avoids the kind of blueprint for social
revolution that radical leftist movements such as Marxism-Leninism supplied in
the past.
Instead, leading CLS devotees envision a potential emancipation of individuals
from the structures of power that restrict and victimize them. For these reasons,
the political philosophy of many in the CLS movement has been described as
utopian, a characterization that many do not completely deny.
Furthermore, CLS at times claims that legal materials are inherently
CLS holds that individuals are tied to their communities, socio-economic class,
gender, race, and other conditions of life such that they cease to be
autonomous actors in the Kantian mode.
POST-COLONIALISM -is a form of contemporary history that questions and
reinvents the cultural ways of viewing and of being viewed
It is "a style and concept in the arts characterized by distrust of theories and
ideologies and by the drawing of attention to conventions.
Founded by Sigmund Freud (1916-1917). Freud believed that people could be
cured by making conscious their unconscious thoughts and motivations, thus
gaining insight.
Builds both upon feminist challenges to the idea that gender is part of the
essential self and upon gay/lesbian studies' close examination of the socially
constructed nature of sexual acts and identities.
Only one extension of a male-dominated society that is characterized by
inequality between the genders and by the sexual objectification of women.
Critical race theory
Dispute that the Constitution is or ever can be "color-blind."
Aesthetics (also spelled sthetics) is a branch of philosophy dealing with the
nature of art, beauty, and taste, with the creation and appreciation of beauty. It
is more scientifically defined as the study of sensory or sensori-emotional
values, sometimes called judgments of sentiment and taste. More broadly,
scholars in the field define aesthetics as "critical reflection on art, culture and
Reformism is the belief that gradual changes through and within existing
institutions of a society can ultimately change a society's fundamental economic
relations, economic system, and political structures. This belief grew out of
opposition to revolutionary socialism, which contends that revolutions are
necessary for fundamental structural changes to occur.
Marxism as catalyst for CLSM
Although CLSM has been largely a U.S. movement, it was influenced to a great
extent by European philosophers, such as nineteenth-century German social
theorists Karl Marx and Friedrich Engels.
An economic and sociopolitical worldview and method of socioeconomic inquiry
based upon a materialist interpretation of historical development, a dialectical
view of social change, and an analysis of class-relations within society and their
application in the analysis and critique of the development of capitalism.
According to Marxist analysis
>class conflict within capitalism
-contradictions between highly-productive mechanized and socialized
production performed by the proletariat
-and private ownership and private appropriation of the surplus product in the
form of surplus value (profit) by a small minority of private owners called the
Social revolution
>By-product of unrest
Long term outcome:
A socioeconomic system based on cooperative ownership of the means of
production, distribution based on one's contribution, and production organized
directly for use
Link between Marxism and CLSM
-belief on having a utopian society
-there is struggle for power in the hierarchy of classes
-challenges the established norms in society
Equality in the realm of CLSM
Two starting points:
Why do legal principles and doctrines do not yield determinate answers to
specific disputes
How legal decisions reflect cultural and political values that shift over time
>Determination of illegitimate social hierarchies
>The law mask relationships of power and control

>The emphasis on individualism within the law similarly hides patterns of power
relationships while making it more difficult to summon up a sense of community
and human interconnection.
Ideas to obtain equality
-seek to demonstrate the indeterminacy of legal doctrine and show how any
given set of legal principles can be used to yield competing or contradictory
-undertake historical, socioeconomic and psychological analyses to identify how
particular groups and institutions benefit from legal decisions despite the
indeterminacy of legal doctrines
Ideas to obtain equality
-expose how legal analysis and legal culture mystify outsiders and work to make
legal results seem legitimate; and
-elucidate new or previously disfavored social visions and argue for their
realization in legal and political practices in part by making them part of legal
Scandinavian Legal Realism
In a nutshell, the Scandinavian Legal Realism dismiss the mysticism
and the illusory logic that surround traditional legal thinking and refute the
structuring of jural relations in the basis of the right: obligation concept. Based
on this, the theory of this realist movement in jurisprudence is anti-
The Scandinavian Legal Realism deals with patterns of behavior, that is,
on a persons traits and perception, on trying to analyze and understand the
nature of law and the jural relations. It is based on the phenomenon of
conscious behavior and adopts a psychological orientation.
I. Criticism of American Legal Realism
Both the American and the Scandinavian Legal Realism
deal with patterns of behavior. However, the American legal
realism placed focus in the adjudicative process or judicial
process in its psychological orientation. With this focus, the
Scandinavian legal realists think that the focus of the American
legal realism suffers from its inability to separate validity of the
process from the reality. Consequently, the legal realism that the
American legal realists are trying to espouse had been self-
contradictory because of its confinement to the judicial process.
II. Criticism of Abstract Values
The Scandinavian Legal Realists take up the idea that
abstract values have no place in law. Whereby they
formulated that if abstract values or criteria of values are
considered it will only result in the illusion and fallacy of
imparting objective existence to otherwise subjective notions or
ideas. Such objectivization then results into a monstrous
contradiction, which they coined as word magic. Word magic,
according to the Scandinavian Legal realists, is the act to
objectivize abstract values and notions as to imply that these
values and notions have real meaning although this is not the
The first issue that arises with this formulation of the
Scandinavian Legal Realists is that, if we cannot, give real
referrents to words or terminologies then how can we answer
the problems of the nature of law and other jural relations?
Scandinavian Legal Realism solves this problem on referring to
social facts and posing the importance of what is best for the
social welfare and common good. As a result of which, the
metaphysical element of jurisprudence, which includes the
problem of evaluating terms of justice and equity and the
personal preferences of the valuer e.g. policy planners, policy
makers, legislators, and judges, are and should be eliminated.
However, after the metaphysical element of
jurisprudence have been eliminated, another issue springs, that
is, how can law be determined by the prevailing social
standards without exposing law to unreality? It is noteworthy to
state that the application of social valuation of common good or
social welfare involves judgment of values and judgment of
values is exactly what the Scandinavian Legal realism is
criticizing. Scandinavian Legal Realists state that social
valuation is not judgment of values because the feeling of what
is best for the social welfare is a fact of conscious behavior,
which is something that is real.
III. Nature of Law
The Scandinavian Legal Realism analyzed and
understood the nature of law on the phenomenon of conscious
behavior, which serves as a basis for its psychological
orientation. At the same time, it also dismisses the concept of
law as the will of the State or based on the consent of the
governed for such only creates an illusory idea far-fetched from
reality. This illusory idea can be illustrated in two ways: (1)
they state that we cannot characterize a statute or a legal rule
from the will of the State as just or unjust because the words
just and unjust do not suggest known quality of the statute
or legal rule but only suggest that the person judging a statute
or legal rule likes or dislikes the statute or legal rule; (2) they
also state that when we say that the binding force of law is
based on the consent of the governed then it follows that the
withdrawal of the consent is the cancellation of the force but
this is unthinkable in a politically organized society.
Hence, the nature of law for Scandinavian legal realism
is a system of behavior patterns based on feelings and
sentiments of what is best for the general welfare. Because of
its basis, the people take it upon themselves that the legal rules
are obligatory and rendered enforcement largely unnecessary.
IV. The Basic Jural Relations
The basic jural relation in conventional perception is
right: obligation. This is the basic relation of individuals to
other individuals and the relation of individuals to other
individuals to the State and government. This relation
represents all legal facts and transactions.
In the Philippines, Article 37 of the Civil Code provides
an express reference to jural relations in the definition of
juridical capacity as the fitness to be the subject of legal
relations inherent in every person and is lost only through
death. This relation had been understood to mean, when a
person enjoys a right someone, somewhere has the burden of
the correlative obligation.
The Scandinavian Legal realists object to the structuring
of jural relations as another illusory idea since it is unrealistic
and non-observable. As an illustration, the legal concept of
ownership is used to suggest the problem that the conventional
perception of right: obligation creates problem that does not
guarantee the real right to the owner and based the existence of
obligation on the application of the threatened sanction. Hence,
according to the Scandinavian Legal realists, jural relations can
be objectivized on the basis of psychological perception wherein
rights are based on human inclinations or impulses of authority
of the owner to assert a position of advantage and obligation
becomes a part of the obligor to heed a constraint or comply
with a prestation.
V. Critique of Scandinavian Legal Realism
The critique of the theory calls for a complete reorientation of
the concept of law and jural relations along the observable lines of
psychological realism. One of the example stated by Pascual is a
review of the distinction drawn by Article 1423 of the Civil Code
between civil obligations and natural obligations. In such a case, if
the theory of the Scandinavian Legal realists are observed then
there would be no distinction between obligations that are civil and
natural for there would be no need to distinguish between the right
of action to compel performance and those which do not have such
grant because relations are objectivized on psychological perception
VI. Scandinavian Legal Realism on Law Formulation.
Law is considered as a mechanism of coercion founded upon
rigid norms and principles accepted and legitimized by the majority
through practice and execution of authority. This is why
Scandinavian legal realist clearly distances themselves from a vision
of a flexible law per se. These rigid norms become then the bases
for the creation of laws. They may be right to life, liberty or property.
However, it is not always rigid. It has a tendency to become partially
flexible because throughout the years, these fundamental rights
are continually being modified by complex values of society that is
politics, economics, social and cultural condition. These and then
are legitimized by the majority of people through aid of public
authorities. Nonetheless, the basic ingredient or consideration in the
formulation of law must base itself on the fundamental rules.
Thus, in the case of Lucena Grand Central Terminal vs. Jac
, the ordinance must manifest the rigid norms that if one is to
deprive liberty or property, it must be done with due process of law.
VII. Scandinavian legal Realism on Execution of Law.
Law regulates how people interact with other people and with
things. Hence there is a need for very detailed descriptions of
exactly what kind of behaviour is required in what kind of situations.
A law is said to be effectively executed when it is based on
fundamental principles of norms universally and legitimately
accepted by people or at least by the majority. The objects of legal
doctrine must be familiar to everyone for a stricter execution and
obedience of the law.
VIII. Scandinavian Legal Realism on the Adjudication.
The Scandinavian legal realist does not confirmed that the
central role played by the legal actors (in particular the lawyers,
judges and justices) are vital in the application of legal phenomenon
today. Scandinavian legal realists take another road; one could say a
more traditional road of conceptual analysis. They commence by
directly focusing on the different concepts and categories that
constitute the essence of the law: rights, duties, property, damages,
etc. The legal actors are only mere modifiers acting whether or not
they should act upon it to reform, improve or execute it.
Thus, it was held that it was a fundamental rule of imposing
equitable consideration that upheld the petitioners when the latter
prays for a 20% Christmas bonus for the years 1954 and 1955. CFI
57 G.R. No. 14833
of Manila Court does not see how petitioners may have a cause of
action to secure such bonus because a bonus is an act of liberality
and the court takes it that it is not within its judicial powers to
command respondents to be liberal. Petitioners admit that
respondents are not under legal duty to give such bonus but that
they had only ask that such bonus be given to them because it is a
moral obligation of respondents to give it
. Nonetheless, this case
highlights law, as what described by Scandinavian Legal Realism,
according to its fundamental essence, i.e. equitability.
IX. Scandinavian Legal Realism on Legal Profession.
It is recognized by this school of thought the importance of law
school to the legal profession for it is here that legal knowledge is
gathered, systematized, purified and send back out into practice by
way of the many individual law school graduates who, in their
practice will continue to apply, refine and develop the body of legal
knowledge which is part and parcel of the role that they will now
occupy somewhere within the legal system.
Policy Science Perspective
Yale School of Law
- Prof. Harold Lasswell
- Prof. Myres McDougal
- An approach to understanding and solving problems
- Integrated and comprehensive set of procedures for addressing such
- The central objective of the policy science perspective is to help people
make better decisions.
- Its fundamental goal is to foster a commonwealth of human dignity for
What is Law for the Policy Science Perspective?
- Law is not just a mere body of rules but is more of a continuous process
of democratization of social values.
- A means for the equitable distribution of the social values which should
guide the law-making and the legal ordering of the society.
Policy Science: An Approach
Concerned with improved methods of knowledge and systems for better
A technique which helps the decision-maker to take decision with
improved methods of knowledge.
58 Primitivo Ansay et al. v. The Board of Directors of the National
Development Company et.G.R. No. L-13667.
1. Definition of the social problems,
2. Identification of missing knowledge,
3. Acquisition of the relevant data using social research techniques,
4. Interpretation of a problem solution,
5. Policy choice.
The Basic Social Values
- Policy science is an advocacy of social values.
- These seven basic social values are translated by means of policy
guidelines of the state.
Safety and Health
- Power is a political mechanism for the good of the society.
- Reflects the will and choice of the people as a whole and not just that of
the leader.
Power as a Social Value
- The capacity to secure and maintain the fundamental rights.
- The competence to share in the making of policy of private groups or
- The capacity to participate in the making of important public decisions
without any political or religious interference.
- Widespread understanding among people of different cultures and
- Maintenance of the right to think and the pursue the right of private
- Purpose:
To dispel misunderstanding
To eradicate ignorance
Knowledge as a Social Value
1. Signifies the emancipation of the masses through education and the ever
increasing training and instruction at all levels according to talent and ambition.

The state has the right to regulate, supervise and aid in the education
of adults and children for his duties, responsibilities and human relations
2. Cognition and appreciation of how democratic ways and processes work
together with the ways for it to continue to work better.
Men cannot simply remain loyal to democratic ideas and processes
without the cognition that these are capable of making them free.
1. Regard for Life and Limb
- the free and unharmed possession of the complete body.
2. Regard for Human Personality
a. Positive Phase
b. Negative Phase
Positive Phase
- The society has a great deal to do with the degree of respect a person
may bestow or expect from another.
- Freedom from any kind of discrimination on grounds of race, sex,
language, religion, political opinion, or property status.
Negative Phase
- Individual initiative, choice and determination are hindered or inferred
- Respect for human right and freedom should be always restored, as
much as possible.
- Manifested in the ability of a person to do things which are essential to
realize his or her conscience, opportunities and interest.
- Liberty is not unrestricted.
Rubi v. Provincial Board of Mindoro
- Liberty cannot be dwarfed into mere freedom from physical restraint of
the person of the citizen
- Liberty is deemed to embrace the right of man to enjoy the faculties
with which he has been endowed by his Creator subject only to such
restraints as are necessary for the common welfare.
- General Facet
Signifies freedom from want and the conservation of the natural
- Particular Facet
Denotes the minimal substance or means of meeting the
immediate necessities and comforts of life.
- General Facet
Indicates freedom from fear of disease, pestilence and hunger
as well as freedom from fear of violence, disorder and war
- Particular Facet
Signifies protection, public health, social security, and peace
and order
- Equality does not imply absolute similarity in all aspects.
- It does not mean that everyone should be the same in all relations.
- Persons similarly situated are similarly treated.
- All persons or things similarly situated should be treated alike, both as
to rights conferred and responsibilities imposed.
- The law shall be enforced and applied equally
International School Alliance v. Quisumbing
- Equal pay for equal work is a principal long honored in this jurisdiction,
as it rests on fundamental norms of justice.
- Persons who work with substantially equal qualifications, skill, effort
and responsibility, under similar conditions, should be paid similar
- What sets policy sciences apart from other forms of intellectual
activities is its emphasis on the decision process.
- Policy science perspective favors decision outcomes that use minimum
coercion, maintain the fundamental value-institution patterns of public
order, and achieve decisions that optimize preferred values.
- The point is to loosen the bonds of automatic affirmation.
- Statutes not in agreement with the social values are neither
authoritative nor controlling.
Early Forms of Liability
- Early Forms of Legal Procedure were Grounded in Vengeance
- appeal was the alternative of it
- Early English appeals for personal violence was confined to
intentional wrongs, such as melees, blows and wounds- all forms
of intentional violence.
Primitive Customs and Laws
- A tree which falls upon a man, or from which he falls and is killed
How a tree might have been put on the same footing with animals
it was certainly treated like them, and was delivered to the
relatives, or chopped to pieces for the gratification of a real or
simulated passion
Ancient Text
- If a slave killed a freeman, he was to be surrendered for of the
composition to the relatives of the slain man, and the master was to pay
the other half
- If the slave or his master had been maltreated by the slain or his
relatives, the master had only to surrender the slave
The surrender of the slave or beast empowered the injured party to his
will upon them
Roman Law: 12 Tablets
- If a man was indebted to several creditors and insolvent, after
certain formalities they might cut up his body and divide it among them
*payment by the owner was merely a privilege in case he wanted to buy
vengeance, but this privilege, later on become a custom
Aquilian Law
- Enlarged the sphere of compensation for bodily injuries
- Masters became personally liable for certain wrongs committed by their
slaves with their knowledge, where previously they were only bound to
surrender the slave
- Ship owners and the innkeepers were made liable as if they were wrong
doers for wrong committed by those in their employ on board ship or in
the tavern
Exceptional confidence which was necessarily reposed in carriers
and innkeepers. They were guilty of negligence in having employed
the services of bad men
first instance of a master being made unconditionally liable for the
wrongs of his servant
English Law
- If one have kept a tame fox, which gets loose and grows wild, he that
have kept him before shall not answer for the damage the fox done after
he have lost him, and have resumed his wild nature
The ground of the owners liability was his ownership of the
When the fox escaped, the ownership was at end
Liability of inanimate thing
- If a man fell from a tree, the tree was deodand
- If my horse strikes a man, afterwards I sell my horse, and after that the
man dies, the horse shall be forfeited
In all indictments for homicide, until the very lately, it has been
necessary to state the instrument causing the death and its value
- Also referred to as maritime law
- A body of law which governs maritime questions and offenses
- Most important factor in our law today
- If a man falls from a ship and is drowned, the motion of the ship must be
taken to cause the death, and the ship is forfeited, provided, however
that this happens in fresh water. If the death took place in the high seas,
that was outside the ordinary jurisdiction
- A ship is the most living of inanimate things
- This body is animated and put in action by the crew, who are guided
by the master
- A collision takes place between ship A and ship B through the fault of
ship A alone. That ship under lease at that time, the lessee has his own
master in charge, and the owner of the vessel has no manner of control
over it
The owner, therefore, is not to blame and he cannot be even
charged on the ground that the damage was done by his servants
he is free from personal liability, yet there is a lien on his vessels
for the amount of the damage done. The vessel may be arrested
and sold to pay the loss in any admiralty court
- Mother of wages
- Whether the ship is lost or arrive safe
- A suit may be brought there against a vessel by name, any person
interested in it being at liberty to come in and defend, but the suit, if
successful, ending in a sale of the vessel and a payment of the plaintiffs
claim out of the proceeds
- in form, its growth is logical because each new decision follows
syllogistically from existing precedents
- In substance the growth of the law is legislative. It is legislative in its
grounds. Every important principle which is developed by litigation is in
fact and at bottom the result of more or less definitely understood view
of public policy
Philosophy of Tort Law
What is Tort?
Tort is civil wrong for which the victims receives as remedy in the form
of damages.
Governs the things people do to each other, not simply the ways in
which they behave.

Basis of Tort
It revolves around the norms of conduct.
Philosophy of Tort Law
Tort answers these two questions:
- How should people treat each other?
- Whose problem is it when something goes wrong?
Reason behind the creation of tort
- To have the offenders penalize and the victims compensated.
3 categories of tort
Intentional tort
- It requires that the tortfeasor intend or have a desire to bring
about a particular consequences.
- It is determined by the intent to bring about a particular result
or substantially certain to result of an act.
2 categories of international tort.
- Against person
- Against property
- International tort against person
- Battery
Intentional infliction of harmful or offensive contact.
- Assault
Intentional causing of apprehension of harmful or
offensive act.
International tort against person
- False Imprisonment
Intentional confinement of another
- Infliction of mental distress
Intentional infliction of severe emotional or mental
distress as a result of extreme and outrageous conduct (
it can be also committed recklessly.)
- Trespass to land
Intentionally entering or wrongfully remaining on
anothers island.
- Trespass to chattels
Intentional interference with anothers use or possession
of chattel(personal property.)
- Conversion
Intentional interference with anothers use or possession
of chattel to the extent fairness requires that the
defendant pay the full value of the chattel.
- Negligence
Breach of Duty
Negligence: Breach of Duty
- Breach of duty
When the defendant fails to conform to the required
standard of care.
An individual in negligence fails to discharge his duty
only when he injures someone negligently, recklessly, or
- Requisites
A determination of the relevant standard of care
Evaluation of the defendants conduct in light of that
- Reasonable care
The care that requires the defendant to recognize the
risks created by his actions (or omissions) and to act
reasonably in light of those risk.
- According to Judge Leanard Hand, his equation of P x L > B is
another way of determining breach of duty.
P the probability that harm would occur as a result of
the defendants conduct.
L gravity of potential harm.
B burden of precautions that would have to be borne
by the defendant to avoid possible risk.
Negligence: Cause
- There should be an actual cause and proximate cause in order
that negligence can be considered under the 2
- Actual cause ( 3 ways to determine)
But-for test
Substantial factor test
Burden of proof
- Bur-for test
But for defendants negligence plaintiff would not have
been injured
- Substantial factor test
2 or more concurrent or successive events combine to
cause the plaintiffs injury and each of them is a
substantial factor in producing the injury
- Burden of proof
Plaintiff bears burden of proof
o Alternative liability
o Market share liability
o Concerted action
Burden of Proof
- Alternative liability
Negligent tortfeasor must prove that his actions did not
cause the plaintiffs injury. If one fails to make such
proof, both defendants will be found liable.
- Market-share liability
In the case of Sindell v Abbott Laboratories, Market-
share liability was used to allow recovery to the plaintiff
who can show that the defendants were negligent but
can not prove which of the defendants caused the injury.
- Concerted-action
Plaintiffs must show that a tacit agreement existed
among the defendants to perform a tortious act.
Negligence: Cause
- Proximate cause
It is shown when the plaintiff has been successful in
showing the defendants negligence was the actual
cause of the injury.
It must be shown that the defendants action
proximately cause the injury.
Strict Liability
- Strict Liability
Is applicable even when a defendant is neither negligent
nor has any intent of wrongdoing.
Particularly used in acts or situations involving
abnormally dangerous activities.
An individual fails to discharge his duty whenever he
injures someone.
- Limitations
a defendant can argue lack of proximate cause
a defendant can argue that a plaintiff who has
assumed the risk should be barred from recovery.
Criminal Law Theory
I. Criminal Law Theories
A. Classical
B. Positivist
II. Criminal Law Theories Applied to Penal Laws
A. Utilitarian
B. Retributivist
C. Normative
III. Rational Choice Test
A. Definition
B. Application
The basis of criminal liability is human free will and the purpose of the
penalty is retribution.
That man is essentially a moral creature with an absolutely free will to
choose between good and evil, thereby placing more stress upon the
effect or result of the felonious act than upon the man, the criminal
It has endeavored to establish a mechanical and direct proportion
between crime and penalty.
There is a scant regard to the human element.
That man is subdued occasionally by a strange and morbid phenomenon
which constrains him to do wrong, in spite of or contrary to his volition.
That crime is essentially a social and natural phe-nomenon, and as such,
it cannot be treated and checked by the application of abstract
principles of law and jurisprudence nor by the imposition of a
punishment, fixed and determined a priori; but rather through the
enforcement of individual measures in each particular case after a
thorough, personal and individual investigation conducted by a
competent body of psychiatrists and social scientists.
The positivist theory states that the basis for criminal liability is the sum total of
the social and economic phenomena to which the offense is expressed, and the
adoption of the aspects of the theory is exemplified by the indeterminate
sentence law.
People of the Philippines v. Marivic Genosa
G.R. No. 135981 (September 29, 2000)
An Urgent Omnibus Motion was filed by appellant Genosa, in connection with
the automatic review of the judgment of the RTC finding her guilty of Parricide
aggravated by treachery and sentencing her to death. She was convicted, for
allegedly assaulting Ben Genosa, her husband, with a hard deadly weapon. She
sought for her examination and evaluation by psychologists and psychiatrists to
bring into evidence the abuse inflicted upon her, and to determine whether such
abuse will support the battered woman syndrome, would prove her self-
defense theory.
Held: Yes. The Court, through Justice Reynato Puno, emphasized:
"The basic principle in our criminal law is that a person is criminally liable for a
felony committed by him. Under the classical theory on which our penal code is
mainly based, the basis of criminal liability is human free will. Man is essentially
a moral creature with an absolutely free will to choose between good and evil.
When he commits a felonious or criminal act the act is presumed to have been
done voluntarily, i.e., with freedom, intelligence and intent. Man, therefore,
should be adjudged or held accountable for wrongful acts so long as free will
appears unimpaired."
The case was remanded for the reception of expert psychological and/or
psychiatric opinion on the battered woman syndrome plea.
Criminal Law Theories applied to Penal Laws
- The topic of criminalization entails that certain conditions must
be satisfied before the state may enact a statute that subject
offenders to criminal liability.
- Contemporary criminal law theories are not very much different
from those created years ago.
- However, these theories are consistently developed to adapt to
the expanding jurisdiction of criminal laws.
Utilitarian Approach
- Recap : One ought to act so as to promote the greatest
happiness for the greatest number.
- Focus on Benthams Utilitarianism:
Pleasure = Good
Pain = Bad
Happiness is the net balance of pleasure over pain.
Justified Punishment = Promotion welfare > pain inflicted to the
What then is the purpose of criminal law for this approach?
1. General Deterrence Punishment helps deter other potential
O If pain to potential victims can be averted by using
criminal punishment to deter potential wrongdoers, then
criminal punishment can be justified.
2. Special deterrence refers to the deterrence of the wrongdoer himself.
O If punishing the offender helps him deter from future crimes,
then the greatest good for the greatest number might be
O Punishment is an incentive to deter from unlawful act.
3. Incapacitation - similar to special deterrence, because it concerns the
actor (the wrongdoer who is punished).
O But, unlike special deterrence, it does not have to do with using
punishment to create an incentive for him to obey the law in the
O Rather, it has to do with using punishment to limit his
opportunity to commit future crimes.
4. Rehabilitation aim is to change the moral character of the wrongdoer
so that it is not necessary to threaten him with punishment.
- The wrongdoer will obey the law in the future not because he
wants to avoid punishment, but rather because her moral
conscience is reformed
Retributivist Approach
- Justice is served when those who are guilty of crimes are
punished for their crimes. It is violated when the innocent are
punished. (Altman, 1996 : 119)
- Hence, the innocent does NOT deserve punishment. The guilty
does because their actions have caused some harm to
- Revenge is not the purpose, rather, justice.
- Vengeance seeks to harm someone, without necessarily
stopping to ask whether the harm is really deserved. Justice
entails justification, excuses, or mitigation of guilt.
- The purpose of justice necessarily incorporates moral concepts
and considerations.
Why then, is punishment deserved?
1. Blame and condemnation- punishment is an emphatic way of blaming
and condemning the criminal. Criminal laws punish because it is
appropriate for those who are guilty of relatively serious harm.
2. Educational and communicative aspect punishment is an emphatic
way of communicating to the criminal that he has inflicted wrongful
harm to someone.
3. Equalizing function punishment is deserved because the wrongdoer
gains a certain advantage from breaking the law. Law abiding members
are constrained by prohibitive laws. Punishment is an equalizer.
Normative Theory
- As a normative matter, it is a theory about the nature of the
criminal law which helps us to understand what it is about the
criminal law that requires justification.
- It order sets of propositions about the way the world ought to
- It is applied to penal laws for it exhibits common characteristics
by virtue of their reference to certain classes of conduct and
- It emphasizes that man is a creature endowed with
responsibility and choice and further that simple justice requires
a sanction against one who intentionally disregards society's
objective ethics.
- The theory outlines the key concepts of freedom, equality,
parsimony, checking of power, reprobation and reintegration. It
is deemed to be an alternative to the retributivism and
deterrence theory. Its key elements are:
Strengthening freedom as non-domination
Struggling to increase equality
Improving the quality of deliberation in communities
Improvement of justice
Application of Normative Theory
General Rule:
Art. 334. Concubinage. Any husband who shall keep a mistress in the
conjugal dwelling, or shall have sexual intercourse, under scandalous
circumstances, with a woman who is not his wife, or shall cohabit with her in any
other place, shall be punished by prision correccional in its minimum and
medium periods.
The concubine shall suffer the penalty of destierro.
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any
person who shall contract a second or subsequent marriage before the former
marriage has been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment rendered in the proper
Section 3. Subsequent Marriages. Art. 27. By a husband. Notwithstanding
the rule of Islamic law permitting a Muslim to have more than one wife but one
wife unless he can deal with them with equal companionship and just treatment
as enjoined by Islamic law and only in exceptional cases.
Art. 180. Law applicable. The provisions of the Revised Penal Code relative to
the crime of bigamy shall not apply to a person married in accordance with the
provisions of this Code or, before its effectivity, under Muslim law.
Under the normative theory, even though marital infidelity in any form is
condemned by society, the law conforms to the norms of the Muslim community
with respect to such aspect. The state partially waives it right to penalized those
who are covered by PD No. 1083 from being punished by the Revised Penal
Rational Choice Theory
- the rational choice theory sees the actor or the criminal as a
man who base their decisions to commit crimes on its
appreciation of the risks and benefits precluded in a certain act
(Gul, 2009).
- Man is a utility maximizing actor.
- Choices and actions are products of analyzing outcomes, losses
and benefits.
- The concept of the rational actor is important to the theory.
(from Keel (1997), as cited by Gul (2009))
1. The human being is a rational actor,
2. Rationality involves an end/means calculation,
3. People (freely) choose behavior, both conforming and deviant, based on their
rational calculations,
4. The central element of calculation involves a cost benefit analysis: Pleasure
versus pain or hedonistic calculus,
5. Choice, with all other conditions equal, will be directed towards the
maximization of individual pleasure,
6. Choice can be controlled through the perception and understanding of the
potential pain or punishment that will follow an act judged to be in violation of
the social good, the social contract,
7. The state is responsible for maintaining order and preserving the common
good through a system of laws (this system is the embodiment of the social
8. The swiftness, severity, and certainty of punishment are the key elements in
understanding a law's ability to control human behavior.
RCT in the RPC:
- Mens rea is conditioned on the notion that the criminal was able
to discern the outcome of his action.
- Article 12 Exempting Circumstances
Non-imputability is based on the absence of intelligence,
freedom of action, or intent.
On deterrence: commensurability of punishment to
crimes committed.
- Article 14 Aggravating Circumstances
RCT in the Constitution:
- Section 19 (1), Article 2 of the Constitution
[n]either shall death penalty be imposed, unless for compelling reasons
involving heinous crimes, the Congress hereafter provides for it
Patria Potestas
Henry Sumner Maine
Maine was born August 15, 1822, in Kelso, Scotland. He was a leading
nineteenth-century English jurist. In 1844, he graduated from Cambridge
University, where he tutored until he was appointed to be a professor of Civil
Law in 1847. His legal practice was limited, as he concentrated on publishing
legal and political writings. Maine first achieved prominence with the publication
of Ancient Law in 1860. Ancient Law traced the historical development of law in
the ancient world. Maine died February 3, 1888, in Cannes, France.
Patria Potestas
Parental Authority is referred to in Roman law as Patria Potestas (Power
of the Father). It is the legal authority exercised by the oldest living head of a
Roman family over all the members of his agnatic family. It is based on the
Patriarchal theory of the family that the father or grandfather is the head of the
family and that he alone sustained any legal relation to society or the state.
The extent of Patria Potestas over the person and property of a
descendant was different during the different stages of Romes political history.
Agnatic Relationship
The agnates are those subject to the same patria potestas or would
have been subject to it f the common ancestors were alive. It is not produced by
blood relationship, as such, the mother is not the agnate of her children. As a
consequence of her marriage, she pass in to the manus which reunits her with
he children under the patria potestas of her husbandand becomes an agnatic
sister of her own children. A mans grandchildren through his daughter is no her
agnatic relation because they fall under the patria potestas of their paternal
A person can be an agnate without having blood-relations at all. It is
created by juristic act (adoption or in manus convention), the person adopted
becomes an agnate of the adoptive parent and of all the other agnatic relatives
of the new agnate.
Cognatio Relationship
The cognatio relationship is a relationship is a relationship arising
through common descent from the same pair of marred persons, whether the
descent is traced through males or females. IT means the aggregate of those
who belong, not to the same household, but to the same clan.
The essence of cognation is a community of blood not of household. It can
neither be artificially extended not can it be artificially created as such.
Extent of Patria Potestas
The extent of patria potestas over the person and property of a descent
was different during the stages of Romes political history.
During the Republic, the head of the family had the power of life and
death over his descendants as he did over his slaves. The paterfamilias could
sell his descendants in power, corporeally chastise them, or kill them. In 52 B.C.,
Julius Caesar omitted from the list persons who could be guilt of the form of
murder known as parricide. The child or grandchild had no redress against the
cruelty of paterfamilias, who could also dictate his marriage or divorce. It also
included the fathers power to give them in adoption or emancipate them at
The descendant had no proprietary capacity. Whatever the child or
grandchild acquired in any way belonged to the head of the family.
During the Empire, the power of the father was curbed by law. The
power of life and death was passed from the father and was exercised only by
the state. All the father had left was a dort of conditional veto as to marriage.
A descendant was allowed to hold certain properties as his own, to wit:
a.Peculium Profecticium
1. It is revocable;
2. The son can enter into a contract enforceable against the
3. If the son dies ahead of the father, the property is reverted to
the father
b. Peculium Castrense
1. The son owns it exclusively;
2. He can freely dispose of it as he wishes;
3. If the son dies without a will, the father succeeds to the
c.Peculium Quasi-Castrense
Property acquired by the filius through official employment. He can
dispose of it in any manner.
d. Bona Adventitia
Property which came from third parties, on the express understanding
that he and not his father will own it or which came from members of his
maternal family, or his bother. The father only had life interest on the
In Roman Law, four models of creating patria potesta are as follows:
1. Marriage
Among the Romans, marriage is the union of a man and a
woman in life-long consortium. IT is the foundation of the family law.
2. Adoption
Adoption is the act by which the relations of paternity and
filiation are established between persons generally not related to each
other. Its purpose is to create artificially the paternal power for the head
of a family over a person not subject by birth.
3. Legitimation
Is an artificial proceeding to put at the disposal of the legitimate
fathers, to acquire paternal power over the children whom they have
had outside of wedlock. It was invented by the Christian Roman Law to
obviate the shame of union other than marriage and to remove stain
from natural children.
4. Imperial Rescript
A Latin or peregrine obtain in this method a grant of citizenship
and children born at the same time is declared to be in his power.
Seven modes of terminating patria potesta:
1. Natural or civil death of pater familias
2. Natural or civil death of the filius
3. Elevation of the filius to a higher position
All officials are exempt from the burden of the curia did not fall
under potestas, such as: consuls, bishops, praetorian prefects, and
masters of cavalry.
4. Unworthy act of paterfamilias
Patria Potestas was not only a right but a duty. If the father
committed an act prejudicial to the rights of the filius, he was shorn and
stripped of his power.
5. Emancipation
Consist in the fictitious sale of the father before a magistrate,
performed three times to a son and but once as to a daughter or
grandchildren; whereupon a child or grandchild was set free from
paternal authority.
6. Adoption
The adopted person is released from the power of his natural
father and passes into the control of the adopter.
7. Marriage of daughter
Marriage of a daughter would terminate patria potestas as she
would pass into a new potestas which is that of her husband.
Based on the context of Patria Potestas, our laws also included the rule
of parental authority over their children
The father and mother jointly exercise parental authority over their
legitimate children who are not emancipated In case of disagreement, the
fathers decision shall prevail, unless there is a judicial order to the contrary. On
the other hand, Children are obliged to obey their parents so long as they are
under parental power, and to observe respect and reverence toward them
always. Recognized natural and adopted children who are under the age of
majority are under the parental authority of the father or mother recognizing or
adopting them.
The extent of parental authority over the property of children is also
provided for in the Civil Code such that the father, or in his absence the mother,
I the legal administrator of the property pertaining to the child under parental
Patria Potestas Parental Authority (Civil Code)
Parental Authority is referred to in
Roman law as Patria Potestas (Power
of the Father). It is the legal authority
exercised by the oldest living head of
a Roman family over all the members
of his agnatic family.
Art. 209. pursuant to the natural
right and duty of parents over the
person and property of their
unemancipated children, parental
authority and responsibility shall
include the caring for and rearing of
such children for civic consciousness
and efficiency and the development of
their moral, mental and physical
character and well-being.
ART. 211. The father and the
mother shall jointly exercise parental
authority over their children. In case of
disagreement, the fathers decision
shall prevail, unless there is a judicial
order to the contrary.
Children shall always observe
respect and reverence towards their
parents and are obliged to obey them
as long as the children are under
parental authority.
The ancient law of Roman forbade
the children under power to hold
property apart from their parent, or
they never contemplated the
possibility of their claiming a separate
Art. 225 The father and the mother
shall, jointly exercise legal
guardianship over the property of their
unemancipated common children
without necessity of a court
appointment. In case of disagreement,
the fathers decision shall prevail,
unless there is a judicial order to the
contrary. -XXX-
Art. 226. The property of the
unemancipated child earned or
acquired with his work or industry or
by onerous or gratuitous title shall
belong to the child in ownership and
shall be devoted exclusively to the
latters support and education, unless
the title or transfer provides otherwise.
The right of the parents over the
fruits and income of the childs
property shall be limited primarily to
the childs support and secondarily to
the collective daily needs of the family.
The pater familias was answerable
for the delicts(or torts) of his sons
under Power. However, possesed the
singular privilege of tendering the
delinquents person in full satisfaction
of the damage.
ART. 2180. The obligation imposed
by article 2176 is demandable not only
for ones own acts or omissions, but
also for those of persons for whom one
is responsible.
The father and, in case of his
death or incapacity, the mother, are
responsible for the damages caused by
the minor children who live in their
Case: Elcano v. Hill, 77 scra 98
The reason behind the joint and solidary liability of parents with their
offending child under article 2180 is that it is the obligation of the parent to
supervise their minor children in order to prevent them from causing damage to
third persons.
Respondeat Superior Parental Authority
A common-law doctrine that makes
an employer liable for the actions of
an employee when the actions take
place within the scope of employment.
When an employer-employee
(principal-agent) relationship exists,
the employer can be held responsible
for the injuries caused by the
employee in the course of
Article 2180 of the Civil Code,
the following persons are liable for the
acts or omissions of those persons for
whom one is responsible:
(4) Employers are liable for the
damages caused by their employees
and household helpers acting within
the scope of their assigned tasks, even
though the former are not engaged in
any business or industry.
Case: In Ramos v. CA
The basis for holding an employer solidarily responsible for the negligence
of its employee is found in Article 2180 of the Civil Code which considers a
person accountable not only for his own acts but also for those of others based
on the former's responsibility under a relationship of patria potestas.
The role of the family has evolved since the primitive times a the
foundation of our society. As mentioned by Maine, society in the primitive times
was not what it is assumed to be at present but an aggregate of families. The
family has summed up the relationship in society and such relationship have
become basis of the laws.
Case: In Medina v. Makabali
The patria potestas has been transformed from the jus vitae ac
necis (right of life and death) of the Roman law, under which the offspring was
virtually a chattel of his parents, into a radically different institution, due to the
influence of Christian faith and doctrines. The obligational aspect is now
supreme. As pointed out by Puig Pea, now "there is no power, but a task; no
complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred
trust for the welfare of the minor.

Its connection with the Early History of Society and its Relation to Modern ideas
Law and society developed "from status to contract.
The Early History of Property
I. Occupatio or Occupancy
The advisedly taking possession of that which at the moment is the
property of no man, with the view of acquiring property in it for yourself

res nullus- things which have not or have never had an owner-can only
be ascertained by enumerating them.
Things which have not an owner
1. Movables which have been abandoned
2. Lands which have been deserted
3. Property of an enemy
Things which never had an owner
1. Wild animals
2. Fishes
3. Fowl
4. Jewels disinterred for the first time
5. Land-newly discovered or never before cultivated
who acquired the full rights of dominion
who first took possession of them with the intention of keeping them as
his own.
INTENTION-manifested by specific acts
Roman Principle of Occupancy
The source of all modern International law on the subject of Capture in war
and the acquisition of sovereign rights in newly discovered countries
Origin of Property
Roman lawyers: Occupancy was one of mankinds practices
Human race had actually practiced the occupancy of res nullius long
before the organization of civil societies.
Occupancy- process by which no mans goods of the primitive world
became the private property of individuals.
Blackstones Theory
The earth and all things therein were general property of mankind from
the immediate gift of the Creator.
For by the law of nature and reason, he who fist began to use it acquired
therein a kind of transient property that lasted so long as he was using it
, the right of possession continued from the same time
Aphorism of Savigny
Countenance a view of the origin of property
All property is founded on Adverse Possession ripened by prescription
3 elements in the Canon-Possession, Adverse Possession and
Presumption: everything ought to have an owner
II.Indian Village communities
+ An organized patriarchal society and an assemblage of co-proprietors
+ Known to be of immense antiquity
+ Conquests and revolutions seem to have swept over it without
disturbing or displacing it
Exceptional and momentary condition of the rights of the property
indicated in the maxim Nemo in communione potest invitus detineri
(No one can be kept in co-proprietorship against his will )
In India, separate proprietorship is always on its way to become
proprietorship in common
As soon as a son is born, he acquires a vested interest in his fathers
substance, and on attaining years of discretion he is even, in certain
contingencies, permitted by the letter of the law to call for a partition of
the family estate.
DOMAIN held in common- administered by an elected manager
in provinces- managed by the eldest agnate , by the eldest
representative of the eldest line of the stock
Russian and Croatian Villages
Naturally organised communities like India
peasants have within historcal times been converted into predial, and to
a great extent into the personal,serfs,seignior.
Property once belonged to larger societies composed on patriarchal
III. Res Manicipi
included not only land but slaves, horses, and oxen.
Scottish law- ranks with land a certain class of securities
Hindoo law- associates it with slaves
Engish Law- parts leases of land for years fromothers interests in soil ,
and joins them personalty under the name of chattels real.
Ancient Kinds of Property
The period of possession-one or two years, according to the nature of
Usacapcion was only allowed to operate when possession had commenced in a
particular way
Roman Usucapcion
It was the most useful security against the mischiefs of a too cumbrous
system of conveyance.
In order to have a benefit of Usucapcion, it was necessary that:
- that adverse possession should have begun in good
- that the commodity should have been transferred to
him by some mode of alienation which however unequal
to conferring a complete title in the particular case
As manipulated by the jurisconsults, supplied a self-acting machinery ,
by which the defects of titles to property were always in course of being
cured and by which the ownerships that were temporarily separated
were again rapidly cemented together with the briefest possible delay
It must have originally denoted physical contact or physical contact
resumable at pleasure;
it signifies not simply physical detention coupled with the intention to
hold the thing detained as ones own.
Everybody who possessed property as his own had the power of
demanding the Interdicts , and by a system of highly artificial pleading,
the Interdictal process was moulded into a shape fitted trial of
conflicting claims to a disputed possession.
Property in bonis or Equitable Property was a property exclusively
protected by remedies which had their source in the Edict.
Feudal view of Ownership
Leading characteristic : double proprietorship
The duplication of proprietary right looks like a generalized form of
Roman distribution of rights over property into Quiritarian or legal and
Bontarian or equitable.
Contracts Juris Gentium
Social Contract (Compact)
1. one or two steps in the ceremonial are dispensed with; then
2. the others are simplified or permitted to be neglected on certain
3. a few specific contracts are separated from the rest and allowed to be
entered into without form.
Contracts are absorbed in Pacts.
Nexum a contract
Nexi the parties to the contract
Omne Quod Geritur Per s Et Libram
every transaction with the copper and the balance
The change which they undergo appears to be a change from general to
special - the ancient conceptions and the ancient terms are subjected to a
process of gradual specialization.
Two main essentials of a contract
(Bentham and Mr. Austin)
1) a signification by the promising party of his intention to do the acts or to
observe the forbearance which he promises to do or to observe.
2) a signification by the promise that he expects the promising party will
fulfill the proffered promise.
A Pact was the utmost product of the engagement of individuals
agreeing among themselves, and it distinctly fell short of a Contract.
A Contract was a Pact (or Convention) plus an Obligation.
So long as the Pact remained unclothed with the Obligation, it was
called Nude or Naked .
Roman Lawyers: "Juris Vinculum, Quo Necessitate Adstringimur Alicujus
Solvend Rei.
the bond or chain with which the law joins together persons or groups of
persons, in consequence of certain voluntary acts. The law bound the parties
together, and the chain could only be undone by the process called Solutio
Roman Classification of Contracts
1) Verbal
2) Literal
3) Real
4) Consensual
most ancient and the eldest known descendant of the primitive Nexum
effected by means of a Stipulation (Question and Answer)
as soon as the Convention was effected, a form of words had to be gone
through before the vinculum juris was attached to it.
an entry in a ledger or tablebook had the effect of clothing the
Convention with the Obligation
entry of the sum due
bookkeeping in ancient times
all formalities were dispensed with on a condition being complied with
whenever any agreement had for its object the delivery of a specific
thing, the Obligation was drawn down as soon as the delivery had actually taken
- no formalities are required to create them out of the Pact
- the Consensus, or Mutual Assent of the parties, is the final crowning
ingredient in the Convention
In the interval between their day and ours, morality had advanced from
a very rude to a highly refined conception - from viewing the rights of property
as exclusively sacred, to looking upon the rights growing out of the mere
unilateral reposal of confidence as entitled to the protection of the penal law.
The mistake of judging the men of other periods by the morality of our own day
has its parallel in the mistake of supposing that every wheel or bolt in the
modern social machine had its counterpart in more rudimentary societies.