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1 Philosophy of Law Class Midterm Reviewer

Class of Atty. Edmar Lerios By: NJB

I. THE STUDY OF LAW


A. Circus Maximus
1. Gateway

 Law school is sometimes perceived as a circus where riveting feats of human talent dazzle hoi populi.
 Average students can emerge as winners in law school if they are equipped with the proper battle gear and repertoire of
skills. Results are what bestow privilege, create credentials and build bucks.
 Advancement is based on merit (defined as “intelligence and effort” or “I + E = M”) rather than background.
 Meritocracy – a society in which advancement is based, not on the prerogatives of birth, but on talent and performance.
 Dystopia – a society in which the great ideal of equality had been abandoned in favour of a relentless competitive struggle for
success that would culminate in a social order just as hereditary as the one that preceded it but less open to the quest for
social injustice.
 “Just like in real estate,” Gozon said, “there are only three rules in law school: study, study, study.”
 “Law school,” wrote Wellen, “introduced me to a level of cutthroat competition I’ve never seen before.”
 Strong intellectual curiosity is an asset in law school to prepare you for class struggle.

2. From Fright to Might


 You must harness key skills to be at the top of the heap.
 You can only excel in something you truly understand.
 A simple cure involves a brief exposition of life in law school and the techniques that make this environment one of the most
gruelling yet exciting places in the world.
 Failure to have adequate preparation will surely result in total trashing during the elimination rounds.

3. Theater of Law
 “The law is ‘theater’,” wrote Seddon, “with a cast of thousands, a multitude of heroes and villains, improvised scripts and
cliffhanger endings never revealed until the very last second of the final act.”
 “A legal case,” Dershowitz wrote, “is somewhat like a long unedited film containing thousands of frames, only a small portion
of which will ultimately appear on the screen as part of the finished product. The role of the legal system is to edit the film
for trial.”
 Law is one of the principal “literary professions.” The best major in law school is the study of poetry because poetry teaches
you to pay close attention to a written text.

4. Pop Culture
 The lawyer always adds a touch of excitement, suspense, and intrigue into any plot for entertainment.
 Law school is the place where you will be judged by the strength of your arguments and the logic and persuasiveness of your
reasoning.

5. Gunners and Goners


 Gunners – a cluster of students who got the highest grades in law school; the chosen few
 Goners – those who are at the lowest rung; bottom dwellers
 Cognoscenti – the elite clique of the knowledgeable ones

6. Power
 If knowledge is power, as Francis Bacon wrote, then knowledge of the law is super power. The law, if properly invoked by the
right persons at the right time, has been used to right wrongs – even save thousands of lives.

7. Menu
 Constitutional Law  Introduction to Law
 Contract Law  English for Lawyers
 Criminal Law  Legal Method
 Persons and Family Relations  Legal History
2 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB

B. Love, Life & Law


1. Majesty & Mystery
 The persuasive power of law has also derived much of its strength from its mystique and majesty. The element of mystique
was much greater in earlier days particularly when law remained strongly associated with religion. The element of majesty,
represented by Englishmen until relatively recent times by the regular visitations of the assize judges, resplendent in their
scarlet robes and huge wigs may have added its part to the grasp which the law used to have over men’s minds.
 Contestaire – a person who challenges the established order and continues to ask pesky questions after the revolution or
social transformation.

2. Backdrop
 Law is everywhere. Because of that, the language is everywhere, too.
 The language of the law can seem mysterious. Sometimes it even seems as if lawyers deliberately obfuscate, using magic
words and awkward constructions to make the simple complex and the obvious obscure.

3. Discovering the Law


 What is law?
 The word law is Norse in origin, a legacy of the Viking raids that led to permanent settlements in northern England. The word
originally meant “that which is laid down,” so don’t bother laying down the law—it already is.

4. Process
 Law is a process, not a collection of rules.
 The term law encompasses policy and government as well. It refers to “all formal and informal aspects of political organized
power,” including “the functions of all legal agencies (legislative, executive, administrative, or judicial)”.
 What are legal rules? Generally, when the term is used, it indicates that a particular course of action, should, or should not,
be followed. Legal rules are said to be binding. This means if they are not followed some actions in the courts may result.
 Learning the rules is like memorizing the answers to a set of sums. It is of no help when sums change.
 The law in action is that which actually happens in the legal system and is concerned with people’s behaviour.

5. Functions of Law
 Law defines the boundaries of acceptable and unacceptable behaviour. But law is more than just a list of forbidden activities;
it touches every aspect of our lives and should be viewed as a positive force.
 Law bestows benefits on people. Law is thus closely connected to the political system since it is government that determines
“who gets what, when, and how.”

6. Values
 Law reflects society’s values. Interest groups, like pro-life and pro-choice groups, want the law to promote certain values they
cherish in society.
 Law creates new programs. Government, by passing laws that bestow benefits, must create both new programs and the
bureaucracies to administer them.
 Law proscribes certain activities. Law forbids behaviour that causes harm to other people or to their property. (malum in se
and malum prohibitum)

7. Mistakes
 Experience is the name we give to our past mistakes and expanded it forward with the addition that policy is the name we
give to our future mistakes.
 The life of the law has been experience.
 The myths and clichés of the law and its role in the society all rest on the retrospective nature of judicial action.

8. Predictability
 Law provides predictability. This is so that we can conduct our affairs with some certainty. Lawyers hope that such
precedents will help guide the judge’s decision and make the outcome more predictable.
 It provides “a structure to everyday life” by defining and limiting the set of choices available.
 Law evolves continuously to reflect a nation’s needs, norms, and capabilities.
 Carter emphasized that cases often go to courts because the law does not determine the outcome. Both sides believe that
they have a chance to win. The legal process is in these cases unpredictable.
3 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
 Is unpredictability in law desirable? Yes. First, since no two cases ever raise entirely identical facts, society must have some
way of treating different cases as if they were the same in a way litigants accept as fair. Second, the process also has the
desirable effect of encouraging negotiation and compromise.

9. Approaches

a) The Natural-Law Approach


It is the belief that the laws that govern relationships among people, like the laws that govern the
physical universe, are sown in nature. These laws are eternal and immutable, just as God, the
source of all law, is eternal.

b) The Positive-Law Approach


It is the belief that law should simply reflect the will of the majority. Law is stripped of any moral
overtones.

c) The Sociological Approach


It is the belief that the law represents a reflection of the values, norms, mores, and culture of the
society that produces it, and that as the society changes, the law will also change.

10. Rorschach Test


 Viewing law can be compared to the pleasant pastime of cloud gazing.
 In a sense, looking at the law is like looking at cloud formations. Law has the same elusive qualities as a cloud.

11. Law and History


 Oliver Wendell Holmes: “The life of the law has not been logic: it has been experience.”
 The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained
only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and
what it tends to become. We must alternately consult history and existing theories of legislation.
 Stare decisis – requires a court to consider and follow previously decided cases or precedents that sufficiently resemble an
instant or current case.

12. Law and Economics


 Economics helps us to perceive law in a new way, one that is extremely useful to lawyers and to anyone interested in issues
of public policy. Laws can provide incentives for changing behaviour (implicit prices) and as instruments for policy objectives
(efficiency and distribution).

13. Law and Literature


 Cicero said that Literature provides his mind with refreshment after the din of the courts. It soothes his ears to rest when
they are wearied by angry disputes.
 Frankfurter: “The best way to prepare for the law is to come to the study of the law as a well-read person.”
 Lawyers write more than novelists.
 Prof. Balane: “Literature will change the lawyer’s language from wooden, stiff and swarming with clichés—into something
more polished, more graceful—an elegant turn of phrase. There are no useless words in good literature. A single line can
connote a delicate counterpoint of love, anguish, loss and regret.

14. Law and Philosophy


 Zane: Law is the concrete realization of philosophy. It is the synthesis of all the speculations of the ages as to the rules of
human conduct, imposed to protect society and the individual from evil.
 The minimum requirement for a law to be valid is rationality. There has to be good reason for its existence. Devoid of it, the
law is void.

15. Law and Politics


 Law and politics are generally seen as opposites that contest and subvert one another. They may be two sides of the same
coin but they are the opposite sides.
 Politics and law, law and politics; it doesn’t seem to matter which way you arrange these elements. The meaning is the same
either way.
 The idea is that when they overlap, it is to the detriment of the law. By this relationship, the law is elevated and politics is
seen as a bad influence.
 The legal profession has a vastly disproportionate amount of influence on both our legal and our political institutions.
4 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
16. Law and Sociology
 Sociological jurisprudence – law as a means to promote social welfare, requiring legislators and judges who will make law in
light of society’s constantly evolving needs and interests.
 To study law is to study the evolving structures of society in a developing economy.

17. Law and Science


 Science is portrayed as a truth-seeking, objective, descriptive enterprise; law, as normative, process-oriented, and, and
adversarial, committed to justice to justice as much as to truth.

18. Law and Sociopolitical Identities


 Sexuality, gender, and law present an interesting mix.
 “Crime against nature”
 Rights that qualify for heightened judicial protection are those fundamental liberties implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist without them, and those that are deeply rooted in the country’s
history and tradition.

C. The Fundamentals
1. Studying the Law
 Whilst you need to be reasonably intelligent in order to be a successful student, you do not have to be a genius. You need to
study effectively.

2. Bennett
 Law is the cement of society and also an essential element medium of change. Knowledge of the law increases one’s
understanding of public affairs. Its study promotes accuracy of expression, facility in argument and skills in interpreting the
written word, as well as some understanding of social values.

3. Arguments
 Law school is the argumentative marketplace, a domain where arguments and arguing are pervasive. In the hands of
bunglers, argument can lead to a nuclear war. It is not for everyone.
 Arguments – are the claims that people make when they are asserting their opinions and supporting their beliefs.
 Arguing – is the process if resolving differences of opinion through communication.
 Of all the predictors that have been tried, the one that consistently works best is the undergraduate grade point average
(GPA).
 Successful law students:
o Manage their time effectively.
o Don’t succumb to procrastination.
o Are strong writers or willing to put the time to improve.
o Get reading done in a timely manner.
o Prepare for each day’s class.
o Juggle multiple tasks simultaneously.
o Sometimes delay gratification.
 Law school is the training ground for argumentation. Students are trained to be masters of the written and spoken word.
 He, who wants to become a lawyer, and not merely to pass law examinations, must learn to use legal materials.

4. Why and How


 Connecting your talents to your mission is critical because your mission motivates you to build on your talents by creating
strengths, and your strengths will empower you to fulfil your mission.
 During your first year, they’ll scare you to death. During your second year, they will work you to death. During your third year,
they will bore you to death. During the fourth year, they will worry you to death.

5. Magnet
 Law is a glittering lure. It is a place for guts and glory.
 So why are students drawn to law school? College graduates find law school a glamorous place where your presence in the
institution will signify power and prestige.
 The education and training lawyers is critical because they are the only professionals allowed to have direct access to the
judiciary.
 Lawyers work in many different areas, and little of what they do finds its way into the public eye.
5 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
 A high intelligence quotient is not enough to excel in law school. You can have the I.Q. of an Albert Einstein and still find
yourself in academic probation. You need to be made of sterner stuff, a tough cookie with a high E.Q. (emotional quotient)
and a high A.Q. (adversity quotient).
 Formula to get one’s I.Q.: . . = ×

6. Sparks of Genius
 Karl Llewellyn: “A lone wolf in law school is either a genius or an idiot.”
 Consciousness is what defines genius.
 Law school is a melting pot of geniuses and pseudo-intellectuals.
 Sir Arthur Doyle: “Mediocrity knows nothing higher than itself, but talent instantly recognizes genius.”
 Sometimes, genius may prove destructive.
 Emotional intelligence adds up to character. Law students must have the required “cultural literacy” to excel in their new
environment. “To be culturally literate,” said Hirsch, Jr., “is to possess the basic information needed to thrive in the modern
world.”
 Staying power is also necessary.
 The ability to think on your feet is essential. You need to possess the proper values and attitudes to surmount the odds
stacked against you in law school. You need to stay healthy and prep yourself to live the life of a Spartan, a Gladiator, and a
Stoic.
 As in any theme park, you should enjoy the experience to make the most out of it. Make it memorable. If you have the
unfettered love of the life of the mind, this is your ultimate playground.
 Law school is the place where bright minds meet to discuss solving legal problems and resolving social conflicts without
bloodshed.
 Law school is primarily for people who want to practice law. But law school training has one overriding goal: to prepare
people to deal with legal problems within the framework of the legal system.

7. Positive Attitudes
 Most of them will tell you that they look for positive attitudes first.
 You really have to want something in order to be able to generate enough enthusiasm within yourself to go after it and to
convince others that you are worth helping to achieve your goal.
 Discover how you mind works (e.g. learning style).
 Law students value the intangibles, such a good life, a satisfying relationship, or a financially rewarding and interesting
career.
 How do you develop positive attitudes?
o Visualize yourself being successful.
o Control your inner voice.
o Reward yourself for doing well.
o Be persistent.

8. High Grades
 Top law graduates get higher compensation packages.

9. Top Notchers
 Clients expect their lawyers to be their “mouthpieces” and agents, to articulate their problems and offer solutions solve their
legal problems and resolve their differences with others. The ability to solve and resolve is a key skills for lawyers.
 Law is such a vast enterprise that virtually any of expertise you have going into law school will be of use to you in your career.

D. Class Struggles
1. Slaughterhouse
 Law school is perceived as the graveyard of creativity and the slaughterhouse of innovation. It fosters conformity.
 One attends law school to learn how to think like a lawyer, not to memorize laws. Laws change; how they are properly
analyzed does not.
 A large part of the secret of success in life is learning to apply your areas of greatest talent to manage your weaknesses.
 It is through applying oneself to cases that one gets to understand how legal problems present themselves and how legal
argument is conducted.
 Talents are like muscles. You can get the most out of law school only if you have a strategic plan.
6 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
2. Intimidation
 First, there is intimidation of students by some professors and then, every bit as commonly; there is substantial intimidation
among the students themselves.
 You can excel in law school, even if your work was considered “average” in college.
 The people most likely to succeed in law school are physically healthy, disciplined, hardworking, intelligent, good at speaking
and writing and possessed of large vocabularies and good reading skills.
 The only way to counteract intimidation is through mental toughness and intense preparation before every class.

3. Let us Prey
 Excelling in law school involves a strategy for survival.
 Law school is a war zone.

4. Clark Clifford
 What do law schools expect from law students? Everything.
 The student should have acquired habits of precision, fluency and economy in speaking and writing.

5. Essays
 Find your own unique angle.
o In general, avoid generalities.
o Good writing is writing that is easily understood.
o Read The Elements of Style by William Strunk, Jr.
o Have a few people read your personal statement and critique it.
o Maintain the proper tone.
 Like any good writing, your law school application should tend towards clarity, conciseness, and candor.

E. The Conquerors
1. Introduction
 The will to conquer is the first condition of victory.
 It is all about overcoming personal obstacles and a proper attitude and frame of mind.
 Pursue the study of law, rather than the gain of it.
 Lord Barbizon: Always behave like a duck—keep calm and unruffled on the surface but paddle like the devil underneath. Look
calm and never let them see you sweat, but prepare like hell for every class session and examination.
 If you have the drive, the inspiration, and the core personal skills, law school is the most fun place you will ever find.

2. Survival Tool Kit


 The most effective survivors draw upon a common set of psychological strengths, such as adaptability, resilience, faith, hope,
purpose, tenacity, love, empathy, intelligence, ingenuity, flow and instinct.

3. Underachiever
 There is hope for underachievers. Even students with severe learning handicaps can excel in law school and ultimately
become great lawyers, like David Boies who has dyslexia, an impairment of the ability to read.
 Intellectual virgins – no experience whatsoever about a regimented and rigorous training fit for the Marines and Navy Seals.
 Starting law school well prepared will not only contribute to a stronger first-year performance.
 Psychological warfare is practiced in law school—to the hilt. There is the battle of wits between students and professors.

4. Active Learner
 To succeed in law school, you must stop being a passive learner. You must get involved and be interactive in the learning
process.
 The key to learning in law school is participation, an active engagement in the process.

5. Active Listener
 Be an active listener. Be aware the professor is speaking and make sense of what he is saying to you. Active listening is
characteristic of the internal locus of control.

6. Questions
 Questioning is the hallmark of active learning. Knowing how to ask questions will give the confidence to speak out.
 To overcome your fear of asking questions, remember that your goal is to learn the law, and learning requires action.
7 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
 Remember:
o Topic (directly related to the topic)
o Tone (respectful tone of voice)
o Timing (wait for a pause in the lecture)
o Trust (look at the person you are asking)

F. Thinking like a Lawyer


1. The Lawyer’s Mind
 “Why might not that be the skull of a lawyer?” Perhaps Hamlet noticed a brow that suggested caginess, or a high-domed
forehead indicating great intellect.
 Analytical power, the ability to give reasons, to explain oneself in a logical way, is a primary tool of lawyers.
 Lawyers are taught to reason by analogy.
 Very few lawyers are consciously aware of what it means to think like a lawyer.
 The goal of legal thought is generally to identify the rights and duties that exist among particular individuals or entities under
a given set of circumstances. The mind of a lawyer is often sceptical and suspicious.
 More than mere knowledge of the law, young lawyers need to have the honesty and integrity, as well as language
proficiency, both spoken and written.
 Lawyers are problem solvers.
 Legal reasoning describes what judges do to justify the result when they cannot demonstrate or prove that they have
reached the “right answer.”
 To persuade us that the law ought to mean what the judge has created, the judicial opinion tries to persuade us to share the
judge’s beliefs about four kinds of things:
o facts, events, and other observable conditions in the world;
o social values and moral principles;
o facts about the dispute established in the trial and preserved in the trial records; and,
o the lawyer’s arguments about what the law has aid in the past
 In a nutshell, legal reasoning describes how effectively an opinion’s blend of case facts, prior law, social background facts,
and moral values creates a legal outcome that makes some plausible sense of the moral and empirical world we know.
 No one opinion will persuade everyone, which is why the legal process becomes political.
 A lawyer’s goal is to identify the rights and duties that exist between the parties, which can be achieved through a process of
legal reasoning:
o Identify the applicable sources of law;
o Analyze these sources of law to determine the applicable rules of law and the policies underlying those rules;
o Synthesize the applicable rules of law into a coherent structure in which the more specific rules are grouped under
the more general ones;
o Research the available facts; and,
o Apply the structure of rules to the facts to ascertain the rights or duties created by the facts, using the policies
underlying the rules to resolve difficult cases.
 Legal reasoning often involves reasoning from the examples of precedents.
 Legal reasoning is essentially a process of attempting to predict or, in the event of litigation, influence the decision of a court.
 Legal reasoning is a process of constructing arguments that a set of rules should be read to impose certain rights and duties.
 One significant way lawyers differ from the rest of the world is that they see issues better than anyone else. Seeing the law
refers to seeing the conflicts between legal rules.

2. Anticipation
 Thinking like a lawyer involves anticipating the arguments, counter-arguments and remedial moves of the opposing side.

3. Learning Styles
 It is your responsibility as a law student to adapt to the styles of your teachers, not the other way around.

4. Traits
 Smart, ethical, fearless lawyers.
 Useful traits (technical, neutral virtues): independence of mind and articulateness
 Negative: money-minded, contentious, and emotionally and ethically unaccountable for their actions
8 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
5. Reasoning
 How to improve your reasoning skills:
o Not getting bogged down in a particular line of reasoning.
o Looking at how you are being conventional.
o Using analogies and metaphors.
o Being self-conscious.
o Opening up to ideas.

6. Reasoning by Example
 Legal rules are never clear. The mechanism accepts differences of view and ambiguities of words.
 The basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case. It is a three-step process:
similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made
acceptable to the second case.
 Most important characteristic: no rules tell the decider how to select the facts that are similar or different.
 Legal reasoning often involves reasoning from the examples of precedents.

G. Teaching Methods
1. The Socratic Method
 A method of instruction named after the Greek philosopher Socrates
 The professor does not lecture or explain. Rather, he uses class time to question his students about the cases that they were
assigned to read prior to class.
 Langdell: Students learn the law best by figuring out legal principles on their own, rather than by being passively taught.
 Key: Students answer the professor’s questions instead of the professor answering questions posed by students.

2. The Case Method


 A method of study that involves making references to the original sources of law.
 Illustration of concrete problems of the cases in which the rules were applied; student answers or suggests solutions
 Langdell: Law is a science and that judicial opinions are the data that the science of law examines. Students should learn the
law by reading judicial opinions or “cases.”
 Law considered as a science, consists of certain principles or doctrine, the growth of which is to be traced in the main
through a series of cases; and much the shortest and the best, if not the only, way of mastering the doctrine effectively is by
studying the cases in which it is embodied.
 It develops modes of thinking and even encourages scepticism about the laws.
 It is a highly effective way of teaching students how to think like a lawyer, which is a foundational skill. It also introduces
students to the operation of the law in practice.

3. The Problem Method


 The imitation of Socrates
 The instructor may lecture for a period of time, invite questions from students, or ask the students to discuss as a group how
to resolve a single hypothetical dispute.

4. Anticipating Your Professor’s Next Move


 By guessing your professor’s plan of attack.
 By keeping in mind what material your professor stresses in class.
 Get to know your professors.
 When you connect learning to who you are and who you are in a relationship with, the learning process becomes personal,
which makes it not only more enjoyable and more efficient and effective.
 Learning by the Socratic Method is good practice, because lawyers need to be constantly on alert. It kicks your academic rear
into gear. It helps teach you argumentative technique. It forces you to become more comfortable with public speaking.

5. Intangibles
 Decorum
 Diligence
 Initiative
 Ingenuity
9 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
6. Expectations
 Learn what the professor expects and do it!

II. A GUIDE TO LAW SCHOOL: THE SKILLS YOU’LL NEED & THE WORK YOU’LL DO
A. Distilling the Law
1. Introduction
 It means organizing large quantities of legal information into usable form.
 The ability to filter information is a critical cognitive function.
 Distilling is the skill of turning a long, difficult legal text into a single, well-articulated legal concept.

2. The Legal Proposition


 It is a single concept which you will use in constructing your exam answers.

a) The Black-Letter Proposition


It means a legal rule or doctrine, as opposed to all the other things you find in judicial decisions
and other legal texts. Black-letter rules are often ambiguous or vague. It does not mean clear.

b) Legal Propositions Can Include Facts


It explains how a legal rule applies to a given set of facts. We treat the facts as part of the law.

c) Beyond Rules
Some of the most important propositions you’ll learn in law school aren’t “rules”—at least, not in
the sense of “rule” that suggests a clear, straightforward doctrine that can be applied to a given
case without much confusion. Lawmakers might choose to create a standard, rather than a rule,
because they want judges’ decision to be sensitive to consequences and justice in individual cases
(e.g. totality-of-the-circumstances test). Virtually, all rules leave room for some discretion.

d) Propositions of Bad Law


Not all of the propositions you’ll study turn out to be “good law”. A rule is “good law” if it applies
in a given jurisdiction and nobody’s overruled it yet. The rules you study might have been
overruled; or they might not apply in some jurisdictions. These propositions of “bad law” are still
testable. Sometimes you study old rules to see how the law has changed.

e) Propositions of Theory and Policy


Some of the propositions you’ll study aren’t law at all; they’re ideas from fields like philosophy,
economics, and political science, which overlap with the study of law. It may also be propositions
about judging or on effects or consequences of legal rules. Propositions of theory and policy are
potentially testable. If your professor spends time on something, she probably thinks it’s relevant
to the course.

3. You Are the Author of the Law


 Good distilling requires you to do four things:
o Put the propositions into your own words.
o Test your understanding of the propositions by applying them to new fact patterns.
o Put the propositions into context to see how they fit into the course as a whole.
o Disregard the propositions that don’t matter.

4. What Can’t Be Distilled


 Law school teaches you more than just how to distill and absorb legal propositions.
 To apply the propositions to the fact patterns on an exam, you’ll need your own, fully internalized understanding of the deep
structure of the course. This is called “seeing the whole cathedral.” To understand the Cathedral, one must see all of them.
You’ll need to compose a big-picture view of the course. Each case is just one glimpse. Each case can only be fully understood
in light of all the other cases.
 You’ll have to pay attention to how your professor connects the cases. Crucially, you’ll also have to compose your notes and
outline in a way that makes sense of the relationships between the propositions.
10 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
 The process of editing your notes and creating an outline is a creative process. You find the connections between the
doctrines. You phrase the doctrines in your own words. The cathedral you eventually see will look different from everyone
else’s.

5. Which Propositions Should You Keep?


 The most important mental habit a law student can develop is the habit of asking, “Do I need to retain this piece of
information? Why?”
 When you analyze a fact pattern on a traditional law school exam, you get credit for every relevant proposition you mention
and persuasively apply.
 Becoming a connoisseur is just what your professor has in mind for you. Ideally, every student would read every case with
deep attention, going far beyond mercenary distilling.
 Distill ruthlessly, but notice what’s left out.

B. Issue Spotting
1. Introduction
 It means identifying relevant legal questions presented by a situation, and framing them in the right doctrinal language.

2. The Right Questions


 The first step in issue spotting is noticing the questions that can be asked about a set of facts. The first question—and in law
practice, ordinarily the most important question—is exactly what the facts are.

3. Three Kinds of Issues

a) Issues about which propositions are relevant


Issue spotting begins with identifying all of the propositions that are relevant to some aspect of
the facts in front of you. Collect all of the propositions that might be relevant here. You’ll say that
two rules might apply, and then make whatever arguments are available under each rule.

b) Issues about how those propositions should be interpreted


Interpret the propositions—to see the questions that might be asked about what they mean.
You’ll need to see the conflict here—and identify both interpretations—to get full credit on an
exam.

c) Issues on how they should be applied


Exams also want you to apply each proposition to the fact pattern. The fact pattern themselves
are often ambiguous. Make the best possible arguments on both sides. The point here is that
you’re performing more than one analysis. Your answer to the question won’t be limited to the
IRAC (Issue, Rule, Application, and Conclusion) structure. Instead, for issues like these, you’ll
identify each proposition that may apply.

4. The Sense of What Matters


 Issue spotting calls on your intuition—you ability to sense which issues matter and which don’t.
 It can be a creative, inspired process. What distinguishes really great lawyers is the ability to look at a situation or a doctrinal
problem and see the issue in a way that no one else has. Framing the issue in new ways can be the key to winning a case.
 It is more than just an advocacy skill. It’s where you can find the real intellectual rewards of legal thinking.
 Good issue spotting arises from a deeper familiarity with the whole legal system and the patterns that a lawyer has learned
to see in it.

5. Focus On What Confuses You


 If something in a legal text confuses you, focus on that. Your confusion probably signals that there’s an issue to be explored.
You’ll have to get comfortable with uncertainty, because it’s usually what points you toward the important issues.

6. Ambiguity is an Argument Waiting to Happen


 Confusion often happens when you can imagine two or more different meanings for one word or sentence or paragraph. If
you can put your finger on why there are two meanings—or on what those two meanings are—you’ve identified an issue.
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7. Focus on what’s New
 Another way to find an issue is to figure out what is unfamiliar to you. Ask yourself why your professor wrote the facts this
way.

8. Focus on Your Assumptions


 An unquestioned assumption is an unspotted issue. So learn to notice your assumptions.
 If you want to make sure you don’t miss issues like this, look out for sloppy wording.
 Noticing your assumptions—and the other approaches discussed—will help you spot a lot of issues, but not all of them will
be important. The trick is to knowing where to draw the line, and that’s something you can only learn with practice and
reflection.

C. Argument
1. Introduction
 It refers to articulating the best legal answers on both sides of the questions you’ve identified.
 It means offering your analysis of the questions you found when you were issue spotting. It means making an argument, not
getting into an argument. It means following a chain of legal reasoning through its end.
 This is important: your job on exams will be to list the arguments on either side of the issues you spot. You’re supposed to
articulate a conclusion. But only after giving the best arguments for both sides.

2. Four Basic Kinds of Arguments

a) Arguments about Texts


Legal arguments often begin with a text. Each of these texts has authority: someone is arguably
required to act in a certain way because the text says so. When we argue about legal texts in law
school, we’re arguing about exactly what legal proposition the text stands for. When interpreting a
text, lawyers tend to argue about the same basic things:

(1) The Text Itself


These are arguments that the language of the text, or its plain meaning, clearly supports
one interpretation or another. The claim is that the text of the rule unambiguously
governs the situation in front of the court.

(2) The Intent of the Drafters


These are arguments about the intent behind the text: what did the legislators who
enacted the statute, or the parties who drafted the contract, or the framers of the
constitution, intend that it mean?

(3) The Purpose of the Text


This inquiry focuses on what actual legislators believed when they voted but on what
goals are expressed in the statute. What problem was it meant to solve? To make an
argument about purpose, figure out what that purpose was, then claim that your
interpretation is more consistent with the purpose.

(4) Principles of Interpretation


When faced with ambiguity, courts often invoke general principles of interpretation.
These principles are called canons of construction—principles or rules of thumb that tell
court in a very general way how to interpret legal texts.

(5) Arguments That the Text Does Not Apply To Your Case
Finally, even if the language of a text seems to clearly cover your situation, you might be
able to argue that the court shouldn’t apply it. The reasons may be because the scope of
the text is limited geographically or because some other rule trumps it: the rule might be
unconstitutional, or pre-empted by some other rule.

b) Arguments about Precedents


A precedent is something a court did or said in a past case. Usually, when we argue about
precedents, we argue about a judicial opinion (in which the court explained why it was doing what
it did). When you argue about precedents, you compare the situation in your case with the
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situation in the earlier case. To make an argument whether your court should follow a precedent,
there are three questions you should ask:

(1) Does the earlier court have the power to bind your court?

(2) Was the proposition in the earlier case a holding?

(3) Was the earlier case relevantly similar?

c) Policy Arguments
A policy argument is an argument about what the law should be. It explains why the world will be
a better place if the court chooses one interpretation of the law rather than another. When there
are reasonable arguments on both sides, judges often want to know which interpretation would
be better as a matter of policy. A policy argument can deal with consequences of a given ruling
(can be about administrability of doctrines or about incentives) or an argument that one outcome
or another would be just or unjust (justice argument).

You need to make a distinction between intuitions about what are right and legal arguments about
justice. Arguments about justice often make the difference between winning a case and losing it.
Intuitions about justice matter and good lawyers work hard to understand them. But if intuitions
can’t be formulated into cogent legal arguments, they’re unreliable predictor of legal outcomes.

d) Arguments about Facts


You’ll be asked to make arguments about which legal category a given set of facts falls into or how
facts should be handled. We call these arguments problems of application of law to fact. It’s an
interpretation of the facts. There’s a big overlap between policy arguments and arguments about
the factual consequences of legal rulings. Judges sometimes make unfounded assumptions about
the factual consequences of their decisions. It’s important, also, just to be aware that it’s often
possible to question the factual assumptions behind policy arguments.

3. What’s good about Good Arguments?


 Even the most honest lawyers need to be able to make arguments on both sides of an issue. If you have an adversary, you
need to anticipate what they might say. Even if you don’t have an adversary, the best way to test your ideas is to imagine an
argument against them.
 As you develop the skill of legal argument, your professional personality begins to emerge.

D. The Work You’ll Do


1. Reading
 Practicing lawyers have to be able to read and distill cases, because practicing lawyers always start at the middle. You have to
be able to figure out the black-letter principles for yourself.

a) Where the Propositions Are


When you read a case, your job is to identify the relevant legal propositions it contains.
Remember: your units of thought are legal propositions, not cases.

b) The Skills Reading Teaches


The first skill you’ll develop through reading cases is distilling the law—by briefing cases, which is
the practice of summarizing a case by tersely identifying its facts, its holding, and the reasons for
the holding. The second skill you’ll develop through reading is issue spotting—the relevant issues
only. Finally, your reading is also an opportunity to practice argument by challenging what you
read.

c) Study Guides and Other Outside Reading


Use study guides insofar as they will help you prepare for your professor’s exam. One good reason
to look at a study guide is when you’re feeling uncertain about a particular legal issue. However,
the problem with outside reading is that its author has no idea what your professor thinks the law
is, or what aspects of it she finds important.
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d) If You’re Falling Behind
If you’re severely behind—you missed half the course, and it’s the week before exams—you
should probably go straight to the commercial outlines or study guides and just lift the
propositions straight from their case summaries.

If you’re moderately behind—you missed a week’s reading—then there are a number of strategies
that might work. Start by figuring out which are the most important propositions. Get a
classmate’s notes, if you can, and see which cases your professor emphasized in class.

2. Speaking in Class
The more you understand about how the Socratic method is supposed to work, the more you’ll be able to
get out of class discussion.

a) Seven Reasons to Speak in Class

(1) Get better at legal reasoning.

(2) Learn the limits of legal reasoning.

(3) Get confident.

(4) Learn to draw on other people’s judgment.

(5) Train your instincts.

(6) Get a better sense of your professional identity.

(7) Build relationships with professors.

b) When Socrates Has Fangs


It is important not to let your confidence suffer if the professor is the one making a hash of things.
Here are some things that can go wrong in law school classes, and what you can do about them.

(1) The Befuddler


Class will often leave you feeling lost. There are difficult questions in law, but a good class
will give you tools to approach those difficult questions—not just leave you feeling
intimidated by how difficult they are. Try to remember that even the best arguments can
be torn apart.

(2) The Basic Measure of Contract Damages Is…Anyone? Anyone?


When class discussion becomes more like a game of guess-what-I’m-thinking, the
professor is just asking students to fill in the blanks at the end of her sentences. The trick
is to recognize that when professors play fill-in-the-blank and pass quickly over your
ideas, they’re not rejecting them. They just had a specific answer in mind, and yours
wasn’t it.

(3) Terrifying Details


Some professors question students relentlessly about the details of the reading.
Remember that if your professor thinks the details of a case are worth focusing on, it’s
because she thinks you’ll benefit in some way from that kind of discussion.

(4) Poisonous Air


Law school classrooms can become too competitive; instead of trying to learn, students
talk to show off. If you find yourself in a class like this, don’t be drawn in. You can’t
change your colleagues, but you can refuse to play along.

(5) The Inquisition


Teaching students to think of authority figures as the enemy is profoundly unhelpful. The
best litigators are those who turn oral arguments into amicable conversations with
judges. If you have a professor who is really mean, then don’t volunteer to speak in class.
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You should expect to be challenged in law school, but you have every right to be treated
with respect.

(6) Give Your Professors the Presumption of Innocence


Do not lightly conclude that your professor is being vicious. Your professor might turn out
to be mean or confusing. But you’ll get the most out of class if you start off with the
assumption that she knows what she’s doing, and that she has a lot to offer. Give her the
benefit of the doubt.

(7) Being Critical and Being Engaged


It’s good to be critical of your professors and of the way law school is taught. Some
professors really are quite bad, and there are plenty of legitimate criticisms of law school.
So you shouldn’t be afraid to question your law school experience and the way they
manage it. Students who are critical of the process are engaged. Being engaged in this
way, though, means avoiding both the extremes of passive acceptance and unthinking
contempt.

(8) Fear Itself


If you find class discussion hostile, try to keep it in perspective. The things that alienate
you about class discussion may be the things that make you a good lawyer.

3. Listening In Class
Listening is a different skill, and one that’s much more relevant to your exams. Learning to become a good
listener is crucial in law school, and equally so in lawyering.

a) Classes Are a Source of Propositions


The most important thing to remember about class discussion is what isn’t important about it.
Instead of making you feel pressured to learn trivial details, class discussion should help you see
how to ignore them. Classes help you see which propositions matter to your professor, the person
who writes your exams—and, by implication, which propositions don’t matter. Therefore, you also
have to learn how to distill your classes.

b) Argument and Issue-Spotting in Class


Class also teaches you to argue, not just by forcing students to practice argument themselves but
by giving you a chance to hear and evaluate legal arguments by your professor and classmates.
You will develop a better gut sense of what kinds of arguments are persuasive. It also helps you
see which arguments are worth making on your exam, by helping you see what kind of arguments
your professor is interested in.

Class discussions also teach issue spotting. Every question your professor asks is an example of
issue spotting. Learn to listen, and try to anticipate.

III. THE LANGUAGE OF THE LAW


A. Reading like a Lawyer
 Be an active reader! An active reader means reading with a strategy and purpose.
 Read, reread, and reread again. Allow plenty of time. Take notes.
 Reading like a lawyer is a three-step process:

1. Examine the Context.


Examine the context of the assignment and the context of the legal material itself. Ask why you are reading
this case. Start with the subject of the course itself. Many cases involve more than one legal topic, but not
all of them are equally important for each class. Ask what the particular context of this case is. Here’s what
you need to learn about a case’s context from this preliminary information:
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a) Court

b) Date

c) Parties

d) Judge(s) and the number and kind of opinion

e) Topic

f) Outcome

2. Extract the Legal Principles.


Keep two facts in mind as you read this time: the cases in a casebook are (almost always) edited; and, keep
an eye out for footnotes and separate opinions. Now, extracting requires that you “brief” the case. To brief
a case means to identify, in your own words, the following pieces of information:

a) The relevant facts of the case.

b) The procedural posture of the case.

c) The court’s holding.

d) The court’s reasoning.

In order to identify these four aspects of a case, you must understand two crucial distinctions: The
difference between law and fact and the difference between substance and procedure.

 Facts are the real events that have occurred in the world. Law is how society chooses to respond
to those facts. In trial, the essential difference is between what happens outside the courtroom
(facts) and what happens inside the courtroom (law).
 As aspects of the law, substance (or substantive law) creates and controls rights and obligations.
Procedure (or procedural law) defines and describes the process by which parties protect their
rights or enforce others’ obligations.

After briefing the case, you need to extract the legal principles. Know these principles and have them
handy.

3. Evaluate the Reasoning.


You must think critically about the material. One way to think critically is to determine whether you agree
with the principles announced. You need to evaluate the opinion on its own terms. Lawyers use two basic
types of reasoning:

a) Analytical Reasoning (vertical)

(1) Deductive analytical reasoning


It starts with general, universally applicable statements and deduces particular
conclusions. Universal statement, in this case, is a premise. It requires that all of the
premises be true. Thus one way to attack a conclusion is to question the validity of the
premises. Be careful about definitions. When comparing judicial opinions that reach
opposite conclusions, you should look for different starting premises as well as different
definitions in the same starting premise. When done correctly, it is the most powerful
form of argument because the conclusion is logically compelled.

(2) Inductive analytical reasoning


It starts with many particular factual statements and uses them to create a generalized
conclusion. Here, universal statement is a conclusion. It works vertically, but it is bottom-
up. It uses particular statements to draw a general conclusion. The most we can do with
inductive reasoning is build a higher and higher level of confidence in the truth of our
general conclusion.
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b) Analogical Reasoning (horizontal)
It draws arguments from across parallel cases rather than from first premises to reach a
conclusion as to a specific analogous case. It can create only a greater or lesser degree of
confidence; it cannot definitively prove the conclusion. Effective analogical reasoning draws the
right analogies. You need to learn how to identify which cases are relevant and to assess how
many cases are needed to establish a principle. One important skill for legal reasoning, then, is
being able to pick out relevant similarities and differences. Analogical reasoning often fails to
produce just one unequivocally right answer. It is also concrete rather than abstract.

After you evaluate the reasoning used in the opinion, you must elaborate on it.

B. Reading and Writing like a Lawyer: Preparing for Class


Effective class preparation requires active reading and active writing. You should write two things:

1. Case Brief
Quote only the most significant language – the language that you will use to explain the implications and
application of the case. The rest should be in your own words. Adapt to your professor and to the subject.

2. Annotations in the Notebook Itself


Underline, highlight, or circle important language or key principles. Have a system—like symbols. Write
words in the margin: signals of what is happening in the text. You have to be judicious in highlighting or
underlining. Underline only a few keywords. How do you know what to highlight? Think about what you will
need if you have to find answers quickly. You should also annotate statutes, rules, and regulations.

C. Reading and Writing like a Lawyer: In Class


 You need to think carefully about language in class as well. To benefit from class, you need to listen, think, and participate.
 Your class notes should be judicious. Choose carefully both what to write down and exactly how to write it.
 Your brief or annotations may be right but still not match class discussion. It does not mean you were wrong.
 Sometimes, however much you have prepared for class, the discussion will turn to aspects of the assigned material that you
overlooked or misunderstood. You will need to write down just enough that you will be able to reconstruct the new ideas
after class. Focus on listening to what’s being said and understanding it, not writing it down.
 Remember to write in your own words as much as possible.
 It is very important to reconstruct the larger class discussion from what little you have.
 The basic idea here is to:
o Set yourself up by preparing well.
o Take as few notes as possible so you can actually process what’s happening in class instead of writing.
o Flesh out your notes while the class itself is still fresh in your memory.

D. Communicating Like a Lawyer


1. Be organized.
Listen carefully to what is being asked, and formulate a logically ordered response to that question. State
one legal principle at a time, along with the language from which you drew it and then the implications that
follow from it. The closer you can hew to a logical order, the sharper and faster your dialogue with the
professor will be.

2. Be precise.
Substitute more precise language, not vague ones. Use legal terms, or the terms repeatedly used in the
assigned reading, whenever possible.

3. Be concise.
Answer the question being asked, and only that question. Avoid irrelevant or redundant statements. Use
simple, assertive statements rather than rambling run-on sentences. Answer the question and then stop
talking or writing.

In order to be sure that your contribution is relevant and not redundant, be sure to listen to your classmates.
Basically, successful legal communication all comes back to this: Be prepared, and then listen and think before you
speak.
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IV. LAW’S ROOTS
A. Introduction
 The law does not stand still. Globalization, rapid advances in technology, and the growth of administrative regulations all
place increasing strain on the law.
 The law is rarely uncontroversial. Law has become a significant instrument for progress and the improvement of our social,
political, moral, and economic life.
 The law is always news. Lawsuits are a negligible part of the law.
 What is law? Two principal answers:
o For natural lawyers, law consists of a set of universal moral principles in accordance with nature.
o For legal positivists, law is little more than a collection of valid rules, commands, or norms that may lack any moral
content.
 The social, political, moral, and economic dimensions of the law are essential to a proper understanding of its workaday
operation.

B. The Genesis of Law


1. Code of Hammurabi
 King and creator of the Babylonian empire
 1760 B.C.
 One of the earliest instances of a ruler proclaiming a systematic corpus of law to his people so that
they are able to know their rights and duties.
 On a black stone slab
 Strict liability

2. Laws of the Athenian statesman Solon


th
 6 century B.C.
 One of the Seven Wise Men
 Was granted the authority to legislate to assist Athens in overcoming its social and economic crisis
 Divided Athenian society into five classes based on financial standing
 Extensive and includes reforms to the economy, politics, marriage, and crime and punishment.

3. Roman’s Twelve Tables


 To resolve disputes between higher- and lower-ranked citizens
 450 B.C.
 Decemviri – a commission of ten me appointed in about 455 B.C. to draft a code of law binding on
all Romans
 Ten bronze tablets, then an additional two tablets

4. Corpus Juris Civilis


 AD 529 and 534
 Justinian, Eastern emperor
 Comprising the Digest, Codex, and Institutes and Novellae
 Definitive: a conclusive statement of the law that required no interpretation

5. Napoleonic Code of 1804

6. BGB
 A more technical, abstract code
 Enacted in Germany
 1900
 Comprehensive

C. The Western Legal Tradition


It has a number of distinctive features:
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1. A fairly clear demarcation between legal institutions and other types of institutions

2. The nature of legal doctrine which comprises the principal source of the law and the basis of legal training,
knowledge, and institutional practice

3. The concept of law as a coherent, organic body of rules and principles with its own internal logic

4. The existence and specialized training of lawyers and other legal personnel
Law, especially the rule of law, is in Western Europe a fundamental element in the formation and significance of
society itself. It shapes the exercise of government, domestically and internationally, by contemporary Western
democracies. The concept of the rule of law, according to Albert Venn Dicey, consisted of the following principles:

 The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power
 Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by
the ordinary courts.
 The law of the constitution is a consequence of the rights of individuals as defined and enforced by the
courts.

D. Civil Law and Common Law


CIVIL LAW COMMON LAW
Codified Essentially unwritten, non-textual law
Texts Cases
Doctrine of Precedent Doctrine of Precedent (supreme
position in the courts)
‘Where there is a right, there is a remedy.’ ‘Where there is a remedy, there is a
right.’
Judges Trial by jury
Four Groups:
 French civil law
 German civil law
 Scandinavian civil law
 Chinese law

E. Other Legal Traditions


1. Religious Law

a) Roman Catholic Church/Ecclesiastical law

b) Talmudic law

c) Islamic (or shari’a) law

d) Hindu law

2. Customary Law
To constitute custom, the practices involved require something beyond mere usage or habit. They need to
have a degree of legality.

3. Mixed Legal Systems


Here, two or more systems interact. An example is the Roman-Dutch law, which is a consequence of the
influence of Dutch jurists who drew on Roman law in their writing.

4. Chinese Law
Confucianism adopted the concept of ‘li’: an intense opposition to any system of fixed rules that applied
universally and equally.

F. The Allure of the Law


 There is an understandable tendency to look to the law to resolve our problems.
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 Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help
it. While it lies there it needs no constitution, no law, and no court to save it.

G. The Functions of Law


1. Order
 Without law, it is widely assumed, order would be unattainable. And order – or what is now popularly called ‘security’ – is a
significant purpose of most governments. It is an essential prerequisite of a society that aspires to safeguard the well-being of its
members.

2. Justice
 The pursuit of justice must lie at the heart of any legal system. Aristotle argues that justice consists in treating equals equally and
‘unequals’ unequally, in proportion to their inequality.
 Principle of Utility (Utilitarianism) – standard of right and wrong; chain of causes and effects
 John Rawls – the idea of justice as fairness which seeks to arrive at objective principles of justice that would hypothetically be
agreed upon by individuals
 Rational self-interest – each individual seeks those principles which will give him or her the best chance of attaining his chosen
conception of the good life, whatever that happens be
 Justice is unlikely to be attained by a legal system unless its rules are, as far as possible, reasonable, general, equal, predictable,
and certain.
 Justice requires more than just laws; the process whereby justice is attained must be a fair one. It must have:
o Impartial, independent judicial system
o Competent and independent legal profession
o Procedural justice as a vital ingredient of a just legal system
 Institutionally, judges differ from lawyers.
Judges Lawyers
Officers appointed or elected to Not state officials
implement the law
Duty to the state Duty to clients
Dispense justice Utilize the law

3. Standards of Conduct

4. Conflict Resolution

5. Social and Economic Arrangements

6. Protection of Property

7. General Well-Being of the Community

8. Protection of Individual Rights

H. The Sources of Law


1. Legislation
Statutes are rarely a panacea; indeed, they not infrequently achieve the precise opposite of what their
draftsmen intended. Their words are rarely conclusive; they are susceptible of different constructions by
textual or purposive approach. There is no single best approach, however, to unlock the door to an ideal
construction of a statute. Lawmakers, also, cannot be expected to predict the future.

2. Common Law
Judicial precedents are a fundamental source of law. The idea is based on the principle of ‘stare decisis’ (‘let
the decision stand’). It is designed to promote the stability and predictability of the law, as well as ensuring
that like cases are, as far as possible, treated alike. The doctrine of precedent requires courts to follow the
decisions of courts higher up the totem pole. Lower courts need to follow only the ratio decidendi.
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3. Other Sources

a) Natural law

b) Public opinions

c) Scholarly articles

d) Common sense

V. CRAZY LITTLE THING CALLED ‘LAW’


A. The Invention of Law
 Hobbes’ claimed that the state of nature—that is, the social condition without law and government—would be “a war of all
against all’ in which life would be “solitary, poore, nasty, brutish and short.” His point was not that life was intolerable
without law, but that it would be, and that, rather than risk such fate, people who were fortunate enough to live under stable
governments, even tyrannical ones, should not attempt to overthrow them: on the contrary, they should obey their leaders
in almost all circumstances.
 It turns out was doubly wrong. Archaeological evidence and extrapolation from ethnographic observation of present-day
hunter-gatherers suggest that, until 12,000 years ago, most humans lived in groups called “bands.” These are small
collections of individuals that are generally mobile, have a relatively fluid membership, and subsist through hunting and
gathering. They lack formal authority structures and are governed mostly by tradition, consensus, and persuasion by elders.
Those who live in bands, in other words, don’t have law.
 His second mistake was to assume that the state of nature was a state of war. These groups seem to have been governed by
rules that regulated the bare essentials of social life: sharing of food, selection of mates, forbearance from physical
aggression, and so on.
 Cooperation and order have not only been possible throughout human prehistory: they have been the norm. Prehistoric
society was anarchic only in the strict, literal sense that it did not have what we now call “law.” The state of nature is not a
philosophical fantasy, but a historic reality experienced by countless generations of human beings.
 Civilization is possible only with a very high degree of social cooperation and interdependence, which, in turn, is possible only
when a community has the ability to regulate social relations efficiently and effectively. Law was a revolutionary invention
precisely because it permitted this regulation.

B. How Is Law Possible?


 In creating law, they produced a technology that has remained, along with organized religion, popular morality, and social
convention, an invaluable tool for communal control.
 We remain puzzled by how the law could have been invented. Acquiring legal authority seems to involve a catch-22: in order
to get legal power, one must already have legal power.
 Having rules laid down in advance would prevent feuds from starting and help coordinate behaviour so as to produce goods
from which all could profit.
 Lex v. Phil story
 Phil’s argument can be used to show that no assertion of legal power could ever be true. To argue otherwise is to engage in
viciously circular reasoning.
 The only option in this case is to identify some other norm that confers power on the ratifiers to ratify the state construction.
Trying to find the top of the chain of authority, it would seem, leads us either in a circle or to an infinite regress. Yet, it is
precisely this kind of ultimate authority that must be found in order for claims of legal authority to be true.
 These two principles in combination suggest that neither chickens nor chicken eggs can exist in a finite universe, for the
existence of one presupposes the existence of the other.

C. A Note on Norms
 “Norm” is a philosophical term. One reason that philosophers use it, instead of “rule,” is that rules are necessarily general.
 The benefit of using this term is that one can cast one’s net as widely as possible. The downside is that philosophers deploy it
in many different ways, often without explicitly specifying which particular one they are using in a given instance.
 Norms should be distinguished from the sentences that represent them. The texts that create norms themselves are not
norms.
21 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
 As their name suggests, norms are “normative,” not descriptive. They don’t purport to tell their subjects what they will or
might do; rather, they purport to tell them what, in some sense, they are entitled to, ought to, or may do.
 Norms need not to be valid.

D. Possible Solutions
 Possibility Puzzle arises because it appears that anybody with power to create legal norms must derive its power from some
norm, while any norm that could confer such a power must itself be created by someone with the power to do so. There are
two ways to stop this threatened regress:
o By finding a body whose power does not derive from some norm. Call such a body an “ultimate authority.” Any
authority in a particular legal system will have derived its power from this ultimate authority.
o By finding a norm that confers power to create legal norms, but which was not itself created by someone with a
similar power. Call this norm an “ultimate norm.” The legal power of any body in a particular legal system would be
traceable to some ultimate norm that exists without having been posited by anyone else.
 God as the Ultimate Authority
o Classic natural law view
o God created the natural law, which confers the legal right on rulers to rule. God’s moral authority, in other words, is
both necessary and sufficient to create legal authority.
o Modern natural law theorists tended to look to certain political communities’ moral right to determine the terms
and direction of social cooperation. According to them, legal authority must ultimately derive from some moral
norm. The existence of legal authority ultimately rests on moral facts.
 Sovereign as the Ultimate Authority
o Positivists
o Legal authority is grounded on social facts. It ultimately rests on brute power—that “might” ultimately makes legal
“right.”
o The sovereign is the ultimate authority, because his power to create legal norms rests merely on the social facts that
his will is habitually obeyed by the political economy and that he habitually obeys no one else.
 All instances of legal authority are traceable to a social rule. Legal systems are simply products of an established practice of
deference. In other words, the fundamental rules of the legal system are ultimate norms that rest purely on social facts.

E. Ultimately
 The legal positivist does not seriously mean that the law is ultimately determined by social facts alone, for the simple reason that
almost no one believes that social facts are among the ultimate constituents of the universe.

F. Hume’s Challenge
 Riddles enable them to isolate deep, and hence often unexamined, assumptions underlying our conception of a certain area or
subject matter and show that these presuppositions clash in some fundamental way. Engaging with the puzzle allows
philosophers to test the validity of these assumptions and root out those deemed to be mistaken.
 The Puzzle, therefore, is best seen as an analytical device that legal philosophers can use to determine the foundations of legal
systems. Asking the same question in the form of a puzzle about the possibility of law, however, gives us a better handle on how
to resolve an issue about which there are real and living doubts. It allows them to look at the question from a different angle, thus
suggesting new approaches to resolving these issues.
 If the positivist solutions are correct, and the law rests on social facts alone, then the only way to definitively determine the
fundamental rules of a particular legal system and its proper interpretive methodology is to engage in sociological inquiry.
 If the natural lawyer is correct, and the law rests on moral facts as well, then these legal questions can be conclusively answered
only by engaging in moral argument.
 Solving it is a matter of particular urgency for all those who care about legal doctrine.

G. Positive v. Natural
 Because legal judgments must track legal facts, a theory that tells us which facts ultimately determine the content of the law will
be essential for a theory that tells us how to discover the content of the law.
 According to the legal positivist, the content of the law is ultimately determined by social facts alone. To know the law, therefore,
one must (at least in principle) be able to derive this information exclusively from knowledge of social facts.
 Legal positivism, therefore, appears to violate the famous principle introduced by David Hume (often called “Hume’s Law”), which
states that one can never derive an ought from an is.
22 Philosophy of Law Class Midterm Reviewer
Class of Atty. Edmar Lerios By: NJB
H. Nino and Dino
 Because normative conclusions cannot be derived exclusively from descriptive premises, normative reasoners must ensure that
their reasoning takes a normative judgment as input if a normative judgment is output. Call this “normative in, normative out”
pattern of inference a “NINO” pattern.
 Hume’s Law is violated, therefore, if a normative judgment comes out but only descriptive judgments went in. call this offending
sequence a “DINO” pattern.
 The legal positivist allows the reasoned to derive normative judgments about legal rights and duties from descriptive judgments
about social facts. Normative judgments come out, but none have gone in. Call this objection to legal positivism “Hume’s
Challenge.”
 Natural law theory is untouched by Hume’s Challenge because it insists on solving the Possibility Puzzle by referencing moral
facts, not social ones. To answer questions that require knowledge of fundamental legal rules, the legal reasoner must form moral
judgments and use them as premises to derive legal conclusions. The natural lawyer respects NINO. Normative judgments about
the law may come out only because normative judgments about morality have gone in.

I. Pick Your Poison


 By insisting on grounding legal authority in moral authority or moral norms, natural law theory rules out the possibility of evil legal
systems. Call this the “Problem of Evil.” The natural lawyer must account for the possibility of evil legal systems given that the law
is necessarily grounded in moral facts. Positivists, on the other hand, have no such difficulties. In either case, the legal authority of
evil regimes can be explained by appealing to certain social facts, as opposed to moral ones.
 If we follow the natural lawyer and try to solve the Possibility Puzzle by ultimately grounding the law in moral facts, then we
preclude the possibility of morally illegitimate legal systems.
 If we eschew the appeal to moral facts completely and follow the positivist in founding the law on social facts alone, we solve the
Possibility Puzzle only on pain of violating Hume’s law.
 We can know which poison to pick only once we have assessed the toxicity of the positivistic one first.