PHILOSOPHY OF LAW REVIEWER PRELIM

Definition:
Philosophy is the study of the universe that seeks to know the truth and rational
explanation of anything.
Philosophy of Law branch of practical philosophy which deals with the wisdom of
law. It studies the nature of law and all the principles that govern its formulation.
Law rule of conduct formulated and made obligatory by legitimate power of the
state.
When do we resort to force?
Resort to force if the law has failed to persuade people.

School
Proponent

Doctrine

History

Classical Natural Law

Aristotle
"Law should be reason without appettite"
"Law gives force to legal contracts"
"The highest good is happiness and it should be exercised
in accordance to virtue"
Aristotle differentiated constitution from laws
Theory of Legislation: law should be made by people who
has theoretical knowledge and practical experience, eg.
politicians
Democracy final appeal is reason. Thus, law is the
common agreement of the state.

Legal philosophy started with Socrates, Plato and Aristotle (SPA).

PHILOSOPHICAL SCHOOLS
School
Proponent

Doctrine

Criticism

School
Proponent

Doctrine

Criticism

Criticism
School
Proponent

Historical School
Friedrich Carl von Savigny
"Law is related with the being ang character of the
people." (people centered)
"Law is parallel to language and custom because there is
no moment of absolute rest"
"Moving force is the law of inward necessity"
*Juristic Pessimism - law must come from ones instinct.
*Law is not merely a manifestation of the past but a
preparation of the future

Doctrine

State - dominates human activity in all of its manifestation;

limitless; man on large scale; most perfect unit
*Plato took the wildest possible view of law.

"Law is right reason applied to comman and prohibition"

3 kinds of laws in the world:
1. Lex Caelestis - it is true law; heavenly law and is the
right reason.
2. Lex Naturae - law that distinguishes the just and unjust.
Punishes the wicked and protects the good.
3. Lex Vulgus - positive law; crowd's definition of law.

Criticism
School
Proponent

Platonic School
Plato
"Law seeks to be the discovery of reality."
"Law is public opinion"
"The end of law is to make completely good men"
A platonic philosopher is one who knows true reality and
the right thing to do.
First to exhibit the general science of law.

De Legibus
Cicero

Doctrine

Metaphysic of Morals
Immanuel Kant
"Morals is validated if it can be established and
comprehended by society as necessary"
"Positive law is codified while moral laws are not codified
but based on experience"
External Law - obligatory and is capable of legislation
(objective)
Maxims - subjective interpretation of an act (subjective)
Categorical Imperative - where the maxim is validated in
accordance to a Universal Law.
Science of Right - its end is principle of all the laws which is
possible to promulgate by external legislation

Criticism

School
Proponent

Doctrine

Criticism

School
Proponent

Universal Principle of Right - every right action should coexist with other right action according to a Universal Law.
*The metaphysics of morals was better illustrated by
Rudolph Stammler - notion of community is inherent in
law. Law is distinct from natural world and that law is a
complete and exclusive system.
Philosophy of Right
Georg Hegel
"The dialectical method - conflict between what is ought
and what is is resolved by the use of thought"
Thesis - existent
Antithesis - conflict
Synthesis - resolution
*Too optimistic

"Laws proper are commands, laws improper are not

commands"
"Law is a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him"
4 divisions of law:
1. Divine Law
2. Positive Law
3. Positive Moral Law
4. Law Metaphorical or Figurative
Styled Laws - laws set by opinion
Science of Ethics - based on the Divine Law
Doctrine

Positive Law - laws existing by position

Difference of Command and Desire: Pain or evil inflicted
during disregard of wish

Positivist School - Imperative School / Analytical School

John Austin

When there is increase in sanction, there is increase in

obedience
Effectivity of Laws:
Sanction - obligation or duty
Reward - right
Concept of Superiority:
May come from either excellence or might
Science of Legislation - positive law is
Science of Jurisprudence - positve law ought to be

Criticism

*Law that does not exist as a perfectly proportioned body

of rules.
*It is difficult for schools to resist setting up an ideal to be
a basis of constructive criticism of law.
*Austin made that law ought to be studied separate from
morals.

School
Proponent

Positivist School - Pure Theory of Law

Hans Kelsen
"Relativity of Moral Value"
Social Norm - norm that orders certain behavior of men
toward other men; these are dynamic
Moral Minimum - agreement on an absolute morality such
as peace.

Doctrine

Criticism

School
Proponent

Doctrine

Criticism

Why is there a necessity to separate Morality and Law?

In order to establish an absolutely moral order and only
one absolute justice.
In order to have a basis on the validity of a positive legal
order.
Justification of Law through Morals
Is possible only if a contrast exists between the moral and
legal norm.
*Kelsen based his work on Austin but did not consider law
as a command of the sovereign.
*Kelsen's method constrains us and does not give us true
picture of the law
Positvist School - Utilitarianism
Jeremy Bentham
"Utility is a property in any object that produces good or
pleasure"
"Greatest good or happiness for the greatest number"
"Nature has placed mankind under the governance of two
sovereign masters: PLEASURE AND PAIN"