Philosophy and Theory of Law
From the book of Bernardo
CHAPTER I – THE CASE FOR LAW
Lawyers and philosophers can be counted among the most
misunderstood species. Many lawyers are miscreants who
supposedly murder the truth, who twit the law, who defend the
sum of society, and who are good in torturing the English
language. See how society judges lawyers as morally
compromised, tempted, or hunted beings: from the classic To
Kill a Mokingbird, to John Grisham flicks, to the series The
Practice and Suits, to The Exorcism of Emily Rose.
Postmodernists say that law is just a self-aggrandized
construct that perpetuates itself by citation after citation of
maxims. If it lives by citation, it would die by non-citation. Even
if we need
As society advances, must law also advance to become more
complex and intrusive?
The answer will depend on the political tendencies o the law.
The SWocialist party-line is “statism”: more State intervention
and welfare systems to have an equal and stable society and
economy. The state, in order to carefully plan society, must
through law spread its hold from womb to tomb.
Should lawyers at the philosopher’s stone?
The practice of law an itself be a practice of philosophy.
“Jurisprudence,” often associated with “case law,” in fact means
the theory and study of law. From the Latin juris and prudentia
or the “prudence of law” or “practical knowledge of the law,”
jurisprudence is supposed to explain the nature, theory and
development, and objective of a law. It is to know the wisdom
behind the law. Through jurisprudence, a law earns more
credulity and force, as one understand not only the what of the
law, but the how and why of it.
What distinguishes an explanation or ratio of a case and an
exposition of legal philosophy in a case is that the latter
explain the underlying concepts, theory, and evolution of a legal
dispute.
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CHAPTER II – LEGAL ISSUES AND THEORIES
Law – Connotes binding communal rules – the do’s and the
don’ts.
– A rule of conduct, just, obligatory, formulated by
legitimate power for common observance and benefit.
Classification of Law:
1. Jural or human law – refers to sanctioned or enacted
law such as statutes, case laws, normative rules, and
percepts.
2. Non-jural or meta-lega law – is not anchored on
human promulgation, such as divine law, natural, and
physical law.
Classical Elements of Law:
1. Reasonable ordinance (rationis ordination) – Law is
a reule of human acs, commanding man to act or
refrain from acting. The Measure of human acts is
human reason, for it is by reason that we perceive and
put order into things. A reasonable law is necessary,
useful, clear in expression, and adapted to place and
time. The people are moved to follow the law when it
is reasonable. If the law is unreasonable, it would only
invite define and dissent.
2. The Common Good (bonus communis)- Principles of
basic humanity transformed once purely ethical
norms into legal claims. This does not mean that all
ethical norms should be law, but only those rules
concerning man with his fellow man. The common
good need not be the utilitarian ethic of the “greatest
happiness for the greatest number.” Rather, it is the
good of everyone. It bears the common aspirations of
all, not just the majority. As Aquinas suggested, the
lawmaker should frame the law according to how the
subject matter commonly occurs in the majority of
instances. It is not expected that the legislator should
assume every single case possible, but should leave
room for exceptions when the law need not be strictly
applied.
3. Promulgation – The final step in the law-making
process is its notice to the public. The public should be
able to take notice of the law, whether by publication
or by hear yeas as a matter of due process.
4. Legitimate Authority – Due promulgation must come
from a competent authority, not from some private
individual or public official unauthorized to enact a
law. Law must be issued by one who takes charge of
the community, who wiled the power to promote the
common interest.
 Philosophy and Theory of Law
From the book of Bernardo
Modern Standards for the Rule of Law
The “Eight Routes of Failure” for any legal system by Lon Fuller:
1. The lack of definite rules or law, so that disputes have
to be decide ad hoc.
2. Failure to publicize or make known to the affected
party the rules.
3. Unclear or obscure legislation.
4. Retroactive legislation.
5. Contradictions in the law.
6. Demands that are beyond the power of affected
parties to observe.
7. Unstable legislation or frequent changes in the law.
8. Discrepancies between adjudication/administration
and legislation.
What constitutes “rule of law” in the modern international
arena, according to United Nations:
The rule of law refer to a principle of governance in
which all persons, institutions and entities, public and private,
including the State itself, are accountable to laws that are
publicly promulgated, equally enforced and independently
adjudicated, and which are consistent with international human
right norms and standards.
Species of Human Law
1. As to whether a right or a procedure is given:
2. Substantive Law – establishes rights, duties, and
corollary prohibitions.
3. Remedial or Procedural or Adjective Law –
prescribes the manner of administering, enforcing,
and appealing, amending, and using legal rights and
claims.
2. As to scope:
1. Public or Political Law – concerned with the struts of
government, the relationship between the individual
and the State.
2. Private – concerned with the rules governing the
relationship of individuals.
3. Criminal – violation of public order through
punishable acts or omissions
4. Civil – the rules of civility such as on the property,
marriage, succession, contracts and torts or private
wrongs that result in damages.
5. Mercantile – deals with artificial personalities such as
corporations and the management of business; that
which regulates commercial transactions.
Civil Code System – refers to a legal system based on coded
laws. Laws are codified through parliamentary statutes,
following the tradition of compiling rules.
Common Law System – is based on case law or judge-made law
that relies on precedents set by judges in a court case.
Islamic law or Sharia law (“the way to follow”) – is based on the
moral precepts of Islam.
Main Issues in Law
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Law, Authority, and Force
How does one become a legal authority and is authorized to
make laws?
- According to Max Weber, in Politics and a Vocation,
there are three (3) ways how authority is
establishes itself in society: CHARISMA,
TRADITION, and LAW.
a. CHARISMA – the personal ascendancy that an
individual gains in society through his passion
and determination for a cause or a mission, and
his success gives him an aura of legitimacy.
b. TRADITION – is where the authority from a
leader, due to his magnanimity or extent of
influence in a society, is passed on his successors
of heirs. Society has made the leader its center
and identity, and will want to keep him alive
through his descendants who suppose to bear his
qualities.
c. LAW – though legal dominion is impersonal. The
officers operate through institutions, under given
terms, periods, and conditions. Laws are
legitimate if they are enacted according to rules
or procedure and individual merit.
Enforcing Law
Should Law be coercive to be enforceable? Can rough laws
spare the rod?
Anarchists think that any form of violence or coercion
is wrong and offends morality; that the only real law must be
consensual, which appeals to the conscience and free will of
constituents, not to threaten of punishment.
For followers of Confucius, the ingredients to
prevent and arrest crimes are not stern punishments but a sense
of shame for misbehaviour, cultivation of virtue, education on
right and wrong, respect for authority, and the elderly showing of
good examples.
Social contact theorists think that constraint is
necessary and moral, since society is presumed to have given
consent to follow the law in establishing a Constitution and a Big
Brother – State. Through election and suffrage, citizens are
able to renew their consent and to amend the terms through the
representatives they vote for. Anyone who does not wish to
follow the law can opt to leave the State, be a fugitive, and live in
a lawless society, if there is any. Shape up or ship out.
The psychologist, Sigmund Freud observed that
reward and punishment are needed for discipline; the way a child
needs to be trained, so does society. The machinery of regular
enforcement, police presence, etc.
Under international law, states are tempered from
using force against each other since every member of the
international community is by principle given equal status and
consideration in domestic policies. States are presumed to be
civilized, matures, self-determining, and independent.
Law and Mores
What is legal is not necessarily moral and what is moral is not
necessarily legal. A moral obligation does not establish a
juridical or legally enforceable tie, still, there is a relation
recognized by law itself between law and morality. In fact, moral
customs are among the sources of law.
According to Tolentitno, “laws and morals have a common
ethical basis and spring from the same source – the SOCIAL
CONSCIENCE.
 Philosophy and Theory of Law
From the book of Bernardo
A contractual obligation is considered void when it has an
illicit cause. It is illicit if contrary not just to law, but also to
“morals, good customs, public order and public policy.”
Religious/Sectarian vis-à-vis Secular/Public Morality
By morality, there is distinction between SECULAR morality and
RELIGIOUS morality.
DISTINCTIONS between RELIGIOUS and SECULAR morality:
1. In States where there is no separation between Church
and State, the law must reflect what is considered
moral by the established religion. For states that
follow the non-establishment clause, a secular
morality known as “public morals” are considerations
of the law. It is a morality not based on religion but on
popular ideals, source of law, and common aspirations
as expressed in policies. Obedience to the law is
itself and Secular Morality.
2. Religious morality concerned with private matters
and preferences, such as sexuality and the censorship
of ideas and beliefs, while Secular morality concerns
itself with public order and affairs.
3. Religious morality’s ultimate basis is the word of
God as expressed though a sacred medium, while
Secular morality is associated with “natural law
morality” according to common-held principles of
reason, justice, and equity, deemed as “natural”
aspirations of men.
Law, Justice and Equality
 Justice is “equality in proportion,” to render to each what
is due. Justice to give what one deserves according to the
same standard, measure, or formula.
 On the basis of the same standard, provisions will not be
equal if the circumstances are not equal, but must be equal if
the circumstances are the same. This is referred to “legal or
formal equality.”
 This is where reasonable classification comes in. Everyone
classified to the same category is to be treated the same
way. Like shall be treated alike. Equality does not have to
mean same treatment, but “proportionate treatment.”
Egalitarianism
 The statement that “all men are born equal” refers to
one’s humanity, meaning, we are all equal in terms of being
human, and the rights pertaining to the fact of being
human, regardless or status.
 This does not mean that all men are born in equal condition
and will live equally. Special arrangements, however, may
be made to eliminate or minimize historical or cultural
disadvantages resulting from conditions that we do not
have choices, such s gender, being born to poverty,
handicaps, race, religion, or color.
 Equality before the law is a universal enfranchisement so
that everyone will at least have the “equal chance” to
develop as any other human will do. Life is not fair
indeed, but since man, despite the inequities of life,
aspires for fairness and a more just society, he must
make equality a goal.
 That “men are created equal” means “equal with certain
unalienable rights, among which are life, liberty, and the
pursuit of happiness.”
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The Blindfold of Justice
 A theory of Justice, John Rawls proposed that we should
do a “reflective equilibrium” whenever we make laws
or decisions.
LEGAL THEORIES
Legal Theory is an inquiry into the nature of law.
When one develop a legal thesis, or write arguments or opinion, it
is important to know from what theory one is dissecting a
question of law.
1. The Teleological or Natural Law Theory
- Looks into the principles, purpose, and end (telos)
of law. It goes to the question of the why of the law.
- Law serves a higher universal order based on a
“natural order,” which we can discover through our
common human reason and validated by human
experience.
- Natural law is an example of “normative
jurisprudence,” which evaluates the purposes or
norms behind the law. According to natural law, nature
is how people normally behave and is expected to
behave. Human nature, in particular, is rational.
- Finnis wrote that there are seven (7) “basic goods”
natural to man: life, knowledge, play, aesthetic
experience, sociability (friendship), practical
reasonableness, and religion (transcendence).
2. The Positivist Theory
- Life itself has rules, and we call them law. We
follow the law because it is the law, period. This is
what the positivist school maintains. The rules
themselves make the cut.
- Positivists are positive on what the law “posits” by the
authority given to the State or by socially accepted
rules. Also known as “the command theory,”
positivism highlights obedience to the content and
expression of the law with the adage “dura lex, sed
lex” (the law may be hard, but that is the law) and
“quad principi placuit legis habet vigorem”
(whatever pleases the prince hs the force of law)
- David Hume argued that we cannot demonstrate on
what the law should be, but on the facts on what the
law is (“social fact thesis”). We argue on legal, not on
moral issues.
- Hart of the Law: For Hart, law is system of “social
rules.” The regime of unofficial rules has three
defects: first, doubts arose as to the precise scope of the
rules s there was no authoritative reference, such as
through a declaration of text; second, the static
traditional character of the rules as there were no
means to deliberately abrogate defunct customary
rules; and third, the absence of an official and
consistent monopoly of sanctions.
3. The Interpretivist or Constructivist Theory
- What the law means is what the judges of the law
would read it to mean.
- As conceived by Ronald Dworkin – points that the
law is more than explicitly adopted rules. It has merits
 Philosophy and Theory of Law
From the book of Bernardo
or principles behind them that can be “interpreted” or
“construed” by the courts.
- Jurisprudence assumes an abstract foundation.
- There are two (2) dimensions of legal interpretation:
Formal dimension looks for logical consistency
between principles and past decisions; Substantive
dimension looks for principles that best “explain” or
“justify” the law, which is construed as having a moral
rights-base dimension. It is the “integrity of the law”
that entitles it to a claim to out obedience.
4. The Get-Real Theory
- Sometimes labelled as “pragmatic jurisprudence,”
focuses on these human realties that are often
overlook by hard law, technicalities, and abstract
policies.
- It tells the law and law practitioner to get real – if law
reflects practical experience.
- Justice Oliver Homes Jr. was an avowed proponent of
legal realism. He argues on “the bad man model,”
that in crafting a law or deciding always think from the
perspective of the bad man, not the good man as the
bad man, at the end of the day, cares only for the
consequences of the law, of what the courts will do to
him, and the rest are irrelevant.
- Law is determined by the actual practices of courts, law
officers, law enforcers; by real word practice. Human
factors and realities are unavoidable in hard cases, and
judges must be able to take these into consideration.
5. The Critical Theory
- The main tenet of this theory is that the law has been
the means to enshrine and coercively impose the
wishes of the dominant group or institutions.
- Questions the law’s assumptions, such as the
assumption that the people are fee, and that the
market is free.
- It is associated with subversives as it aims for
“deconstruction” of the law and used the
“hermeneutics of suspicion” to advance
marginalized causes.
FORMALIST SCHOOL OF INTERPRETATION:
1. The One-Upon-a-Time Approach
- The law is not simply made; it is in the making. It
rolls a story stuck in real events.
- The historical school holds that the law has a past and a
progression. It develops in a gradual and evolutionary
process and cannot be separated from its national or
indigenous character – from clannish, to folk beliefs, to
landmark events that shaped a nation.
- Law operates in a specific language, impressed by
cultural beliefs, traditions, customs, temperaments,
and the common experiences and consciousness
(geist) of a people. The law is therefore the product of
a national genius.
2. The Functional or Sociological Approach
- The law is both a means of social control an social
advancement.
- The sociological school looks into law as a measure
for behavioural conformity and social engineering.
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- The theory is call “functional” by analogy to biology,
where every cell has different functions to maintain a
healthy organism so that each one’s different pursuits
are good to the whole society.
- The approach justifies “judicial activism” and
“judicial legislation” and is related to the Realist
Theory.
3. The Economic Approach
- Judge Richard Posner: took the lead in “economic
jurisprudence” and “consequentialism,” For him,
the purpose of the law is to increase the balance of
happiness in society through “wealth
maximization.”
- Law appropriately take its cue from economics and
plays a larger role in modern legal system.
4. Forms-and-Fundamentals Approach
- Legal formalism or conceptualism holds that the law
is a strict science governed by formal axioms, legal
principles, and rules of logic.
- Formalism is also referred to as “textualism” or the
“plain meaning” approach to the law and
“originalism” or the “original meaning” approach to
the Constitution. Thus, when the meaning of the law is
not clear, the Court may call the assistance of an
amicus curiae, an expert of the law, to expose the real
intent of the law.
- Formalism adheres to ethical constraints on a judge
from deciding or opining on what the law should be or
should mean other than what the law says or does not
say.
- Originalism says that judge should only “interpret”
not “construct.’
-
5. Practice Theory
- Philip Bobbit, wrote that the different approaches to
law, or modalities, have their own uses. One should
know how and when to use them in making
arguments.
- The adoption of a particular mode leads to a different
outcome or case opinion. Each mode has its own
“grammar” and its own “logic.”