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Legal Philosophy: Historical School

I wrote this short paper in 1998 as part of my Ll.M. course on Legal Philosophy. The LAWYERS REVIEW had published it.

THE "HISTORICAL SCHOOL" OF LEGAL PHILOSOPHY : ITS RELEVANCE TO THE PHILIPPINES

by:

Atty. MANUEL LASERNA JR.

THE THESIS OF THE PAPER

The author is of the view that the "historical school" of the philosophy of law is the most relevant school of thought in the Philippine setting, for the reasons described in this paper.

REFERENCES

The author made use of the following references:

1. Pascual, Crisolito, LL.M. INTRODUCTION TO LEGAL PHILOSOPHY. Quezon City: UP Law Center, 1972. 2. Hall, Jerome. READINGS IN JURISPRUDENCE. Indianapolis: The Bobbs Merill Co. 3. Friedman, Lawrence M. THE LEGAL SYSTEM: A SOCIAL SCIENCE PERSPECTIVE. New York: Russell Sage Foundation. 4. Hibbert, W. Nembhard. JURISPRUDENCE. London: Sweet and Maxwell Ltd., 1932.

FOUNDERS OF HISTORICAL SCHOOL

In terms of chronology the historical school was preceded by the philosophical school or the natural law school. In fact, the historical school was a reaction to the philosophical school or natural law school (Pascual, 71).

The founders of the historical school were Prof. Freidrich Karl von Savigny and Prof. Eichhorn, who taught law and jurisprudence at the University of Berlin in the early part of the 19th century (id., 70).

ORIGIN OF LAW: COMMON CONSCIOUSNESS OF THE PEOPLE

In his book On the Vocation of our Age for Legislation and Jurisprudence, published in Germany in 1814, Prof. Savigny, the leading voice of the historical school, wrote of the "common conviction" and "kindred consciousness" of the people as the origin of law:

In the earliest times to which authentic history extends, the law will be found to have already attained a fixed character, peculiar to the people, like their language, manners and constitution. xxx These phenomena xxx are but the particular faculties and tendencies of an individual people xxx. That which binds them into one whole is the common conviction of the people, the kindred consciousness of an inward necessity xxx.

xxx.

The sum, therefore, of this theory is, that all law is originally formed in the manner, in which, in ordinary but not quite correct language, customary law is said to have been formed: i.e., that it is first developed by custom and popular faith, next by jurisprudence, -- everywhere, therefore, by internal silently-operating powers, not by the arbitrary will of a law-giver.

xxx.

(Hall, 87-88; underscoring supplied)

CRITICISM OF THE NATURAL LAW SCHOOL

Prof. Savigny did not believe in the concept of "universality" of law, which is, next to "pure reason" or "rationalism", the main foundation of the theory of the natural law school. On the contrary he held the theory that law is "particular or peculiar" to a people, whose customs, history and culture may be different from those of other peoples and cultures in the world.

xxx The historical spirit, too, is the only protection against a species of self-delusion xxx, namely, the holding that which is peculiar to ourselves to be common to human-nature in

general. Thus, in times past, by the omission of certain prominent peculiarities, a natural law was formed our of the (Roman) Institutes, which was looked upon as the immediate emanation of reason. There is no one now who would not regard this proceeding with pity; and yet we meet with people daily, who hold their juridical notions and opinions to be the offspring of pure reason, for no earthly reason but because they are ignorant of their origin. xxx. (id.)

NATIONAL MIND AND SPIRIT OF THE PEOPLE: ORIGIN OF LAW

Prof. G. F. Puchta, author of the book Outlines of Jurisprudence as the Science of Right - A Juristic Encyclopedia, published in Germany in 1887, and a disciple of the historical school, speaks of the "national or popular character", "common consciousness" and "national mind or spirit of the people" as a basis of the origin, growth and development of law and jurisprudence:

(NOTE: The use of the word Right, with capital R, in the following quotations, refers to Law and Jurisprudence, as used by Prof. Prachta, infra).

xxx.

The Peoples are themselves to be regarded as different individualities, dissimilar and unequal in nature and tendency. This individuality forms what we call the national or popular character. Hence the Rights of peoples are different; and the peculiar characteristics of a national are exhibited in its System of Right, just as in its Language and Customs.

All human Right presupposes a common Consciousness as its source. A principle of Right becomes a fact by being recognized as such in the common conviction of those to whom it is applicable. Right is the common will of the persons or members who are included in a sphere of Right. Through this common consciousness of Right, as by

common Language and a common Religion, the members of a people are bound together in a definite union. This union rests upon a certain relationship of body and mind; its extends beyond the intimacy of the inner family bond, and arises out of an actual division of the race of mankind. The consciousness which permeates the members of a people in common xxx constitutes, in a word, the national mind or spirit of the people; and it is the source of human or natural Right, and of the convictions of Right which stir and operate in the minds of the individuals. The consequence of this mode of origination induces a diversity of Right among the various peoples. xxx. The Conviction of the People, as reflected in the Consciousness of its members, is the first of the modes in which Right arises, because it stands nearest to the primary source of all human Right, and is immediately connected with it. xxx. It has thus the property of a common practice or Custom; and hence the Right that has arisen in this form is called CUSTOMARY RIGHT. xxx (The System of Right) develops with the People. It attaches itself to the national character at its different stages of culture; and it adapts itself to the changing wants and requirements of the People. xxx. (id., 89-91; underscoring supplied).

ROMANTIC MOVEMENT AND VOLKSGEIST AND VOLKSRECHT

Prof. Ernest Barker, discussing the roots and theoretical foundation of the historical school in his book Introduction to Gierke, Natural Law and the Theory of Society, published in Cambridge in 1934, wrote:

The beginnings of the School of Historical Law in Germany are rooted, in their immediate origins, in a reaction against Natural Law - a reaction against its rationalism, against its universalism, and against its individualism. Instead of pure ratio, xxx, there was to be substituted the Volksgeist xxx. Law, on this view, is essentially Volksrecht: it is the product of each nation, of the national genius. xxx. (id., 91-92).

Prof. Barker, summarizing the theory of the historical school, writes that the roots of the historical school may be traced to "the Romantic movement xxx as early as 1770"; that the historical school is "a philosophy of the Folk (people)" expressed in folk songs, folk tales, language, and literature.

FOLK-SOUL AND FOLK-MIND

The German word Volks means sambayanan, people or nation. Volksgeist means the diwa ng sambayanan. Volksrecht means kautusan ng sambayanan.

Filipino legal-philosophy author Prof. Pascual summarizes the volksgeist and volksrecht thus:

xxx The folk-soul, i.e., the life and spirit of the people, which is the basic foundation of historical jurisprudence, provides a sense of beginning and unfolding of law. xxx . And in relation to positive law, the concept of the folk-soul takes on the form of a theory of what positive law ought to be, which is to say that positive law should be a reflection of the common consciousness and spirit of the people. In the words of Emil Lask, even social values proceed from the substratum of the folk-soul.

xxxx

From the observation post of historical jurisprudence, the law is not universal, that is to say, there is not only one and the same law for all peoples everywhere. xxx. (Law) is only national; it is xxx oriented to the time, place, character,a nd individuality of a particular people. The reason for this is that

social milieu varies from time to time, from place to place, and from people to people. Like a people's language and other cultural attributes, which are not found in others, the law is the product of the genius or intelligence of that group of people. In the words of Sir Henry Summer Maine, the acknowledged leader of historical jurisprudence in England, the law is the product "of the huge mass of opinions, beliefs, superstitions, and prejudices of a people produced by institutions of human nature reacting upon one another. In different words, law of a group of people is peculiar only to that group. xxx. xxx (Pascual, 71-96; underscoring supplied).

OBLUTIACS: ACRONYM FOR THE ELEMENTS OF VOLKSGEIST AND VOLKSRECHT

Constituting the folk-soul or folk-mind of a people are their OBLUTIACS, an acronym which, according to Prof. Pascual, means the people's: Opinions, Beliefs, Longings, Usages, Traditions, Idiosyncracies, Arts, Customs, and even Superstitions. (id.).

PHILIPPINE FOLK-SOUL AND FOLK-MIND

Applying the analytical perspective of the historical school to the origin, growth and development of Philippine law and jurisprudence, this Report extensively quotes Prof. Pascual on his discussion of the elements of the folk-soul:

The folk-soul is composed of several elements. Each element is a treasury of the national character of the people. Together they form the common consciousness and intelligence of the people. Together they reveal the people's cultural identity. xxx.

1. Folklore

This element is composed of the beliefs and traditions of a people. They constitute of the folk learning or folk wisdom (paniniwala) xxx.

The folklore may survive in the form of epic tales, which are very rare. A good example in the Philippines is the epic of Ibalon, xxx an ancient narrative of the various phases of the early life in the Bicol region during the reign of Handiong. xxx. There are others, like the Darangan, notably the Indarapatra, the epic of the Muslims of Lake Lanao; the Biag ni Lam-ang, the epic of the Ilocano region; the Tuwaang of the Bogobos of Davao; the epic of the Bornean colonizers of the Island of Panay, which is recorded in the Maragtas, where Datu Sumakwel's code of laws is found. xxx.

But a great deal of people's beliefs and traditions have survived in the form of telling parables (talinghaga) and riddles (bugtong).

(id.,; underscoring supplied).

2. Folksaying

This element of the folksoul is composed of the opinions xxx, the rural reflections of a people. xxx.

The folksaying is composed of the proverbial maxims (salawikain) and sentiments (sabi) of the people. Maxims are short pithy statements containing a general doctrine or truth. Sentiments are more or less the settled sense of the people.

xxx.

3. Folkway

xxx It is composed of usages and customs.

Folkways or kaugalian are rational and widespread habitual courses of actions or practices (ugali) which have been followed and enforced by a group of people. xxx.

xxx Thus in the early times, folkways provided the first sources of rules xxx. The obligatory nature of the folkways stems from the deep-seated desire of the members of the group to keep the respect and esteem of the group by upholding them. xxx. Thus, folkways or kaugalian have become definite norms of activity and conduct. xxx.

4. Folksong

xxx This form of expression of a people's interests and feelings contains their rejoicings (diyuna), lamentations (panaghoy), longings (mithi), and aspirations (adhika). xxx.

5. Folkdance

xxx It is possible that they were regarded as religious ceremonies in the beginning. xxx.

xxx There are appropriate folk dances dedicated tot he people's object of reverence and awe; folkdances which have to do with ceremonials like war or hunting; folkdances connected with celebrations or play like wedding or thanksgiving; folkdances related with work like planting and harvesting; and folkdances which have to do with love and affection like dances of courtship, rejection, or fertility. xxx.

6. Folkart

xxx This category, broadly known in Pilipino as sining, is composed of the skill and art peculiar to a people. xxx. To a great extent the first objects were basically utilitarian or symbolic. Later came the objects of beauty and color. xxx.

(id., 92-95; underscoring supplied).

BACKBONE OF THE HISTORICAL SCHOOL

Pascual writes that from the viewpoint of the historical school there are two important points that stand out:

First, the state is regarded as the highest expression or personification of the volksgeist or diwa of the people. Second, the law lis found and not deliberately made. (id., 86; original underscoring by the author).

THE STATE: HIGHEST PERSONIFICATION OF THE FOLK-SOUL AND FOLK-MIND

As human relations progressed from family or clan to community and further to large-scale territory, a sense of national awareness grew among the people, "where the individual, without shedding his narrower relationship with his family and region, became related, and, in certain instances, even subordinated, to the national interests." (id., 87).

Following the above-mentioned pattern of expansion of human relations of the people, the process of keeping peace and order grew apace with it. At the family-clan level, a direct appeal to the head of the family or clan was enough to resolve human conflicts. As progress continued, something like a communal type of dispute resolution mechanism emerged. Eventually, as progress became more complicated, the pattern of dispute resolution and maintenance of peace and order gave way to the more complex machinery of the body politic, i.e., the State with a national government, where the reins of government were placed in the hands of, and practiced by, a professional group in the community and where the people were bound by common centers of interests and purposes.

xxx The State is thus considered as the highest expression of the folk-soul or diwa of a people. Indeed, it is the highest national structure erected by the socio-political development of the people. In another way of saying it, the body politic is considered by historical jurisprudence as the final juristic personification of a nation or people. (id., 87-88, citing Prof. Puchta, who wrote that "the institution of the State is the highest act of a people.").

LAW IS HISTORICALLY DETERMINED

In the view of the historical school, therefore, "the law is not deliberately made by the effort of human reason, but is the product of common conviction xxx, the folk-soul (which) awakens this conviction xxx, and (that) the law is historically determined." (id.,

88). In the words of Mr. Justice Cardozo, "history built up the system and the law that went with it." (id., 89). Quoting Dean Pound, Pascual writes:

xxx Reason alone cannot work miracles in legal development nor work wonders in constitution making, decision making, codification, or legislation. The growth of law is a historical process. It does not proceed from the peremptory or arbitrary will or wish of the legislators or judges. xxx.

(id, 88, citing Dean Pound, 36 Harvard Law Review, 802, 822 [1923]).

RELEVANCE AND APPLICABILITY OF THE HISTORICAL SCHOOL TO THE PHILIPPINE SETTING

Law is an experience and it relates to human life (folk-soul and folk-mind) itself; it is found, not imposed. This is the most fundamental precept of the historical school.

"Asian values" differ from those of the Western world.

Despite the fact that for a while since 1946, the Philippines has suffered from "identity crisis" brought about by more than three centuries of Spanish colonization, fifty

years of American rule, and five years of Japanese regime, it is safe to say that at the present stage in its contemporary political and legal history the Philippines, as a nationstate, has achieved a remarkable degree of maturity, self-confidence, direction and vision.

The Philippine knows its roots. It know that its people must share common values and a common national vision if it were to continue to grow and mature as a nation.

It knows that its legal system ought to be based on the thoughts of its heroes and founding fathers (its nationalistic sense of achieving its own destiny as a people) and that it must be founded on the spirit of its shared cultural values, i.e., its "oblutiacs" and national consciousness or national spirit, which its people have shared, lived and practiced since time immemorial -- among fellow Asians, long before the Westerners "discovered" Asia.

However, the Philippines also knows that -- in the light of current trends towards globalization, whereby the whole world begins to shrink into one small global village whose constituents must interact with and learn from each other if the world were to grow and survive in peace and stability -- it must be open to other schools of thought in legal philosophy and, in fact, in all other areas of human life.

A legal system that is divorced from the spirit and the soul of the people, one that is dictated upon on the people without their consent, is destined to be rejected by its supposed beneficiaries and its supposed source of sovereignty.

The law is the very identity, the soul, the spirit and the core of the people. It thus must harmonize in a beautiful cultural and philosophical symmetry with their oblutiacs. Otherwise, it is doomed to fail, to be forgotten, to be ignored, to be rejected -- and, worst, to be a cause for rebellion and dismemberment of the nation, instead of being its unifying and stabilizing fiber.

The Philippines is a multi-cultural society, with at least eight major dialects (Tagalog, Ilocano, Panggalatok, Bicolano, Kapampangan, Cebuano, Waray, IlongoHiligaynon), not to mention the dialects of its various cultural minorities (Tausog, Ibanag, Igorot, Aeta, Mangyan, Tasaday, etc.).

Integrating their customs and traditions into the national legal mainstream, pursuant to the policy of multiculturalism (as in the case of the United States, Australia and other countries) requires serious study of the precepts of the historical school law and the participation of the different branches of the social sciences.

THE LIMITATIONS OF THE HISTORICAL SCHOOL

The historical school is useful in explaining the origin, growth and development of law and jurisprudence and in suggesting a conceptual framework that states that law and jurisprudence, if they were to be binding on a people, must respect, promote and proceed from their national soul, spirit, consciousness, customs and tradition. Despite its usefulness as a tool of analysis, however, the perspective of the historical school is limited, especially in the modern times and in the light of international law, in that:

* It fails to give proper importance to the fact that in certain fundamental legal issues, like the tenets of inherent, inalienable and universal human rights, there are basic principles of law and jurisprudence that are, indeed, universal and objective in

nature, regardless of time and space, so to speak, and regardless of location and culture; * There are certain principles, especially those of morality and ethics, as they relate to law and jurisprudence, which are immutable and objective in character and which proceed from an Ultimate Source or an Absolute Good, Enlightened Reason, or Natural Law and Natural Justice, regardless of cultural and racial origins of peoples and political boundaries of men. * It tends to discourage law reform. * It tends to promote juristic instability as the oblutiacs of various cultural minorities may not be in line with the shared mainstream oblutiacs. * Some customs are per se barbaric, inhuman and unreasonable.

No one school of thought is able to monopolize the full explanation and study of the "general theory of law" or the "ultimate science of jurisprudence."

Perhaps each school of thought has its particular use for certain times and places or its own relative wisdom viz certain issues at specific times and for specific peoples.

In the end all schools of thought converge on these basic common grounds and goals: truth, justice, freedom, peace, mutual respect, fairness, goodwill, compassion, wisdom, and, most of all, the idea that mankind is a family of pilgrims travelling to their final destiny.

A COMPENDIUM OF THE VARIOUS SCHOOLS OF THOUGH IN LEGAL PHILOSOPHY

Law is evolutionary; it arises out of customs and traditions; and it develops like language. This is a basic postulate in the historical school of law. Legal philosophy is rooted in the history of philosophy itself. When one studies the philosophy of law, he is forced to study the history of philosophy itself. Philosophy means "love of wisdom." The ideal law or legal system is one that is rooted in wisdom, reason and truth -- as against force, sanctions, and power. Law and justice are all about wisdom, reason and truth. There is a need to discuss the salient thoughts of the other schools of legal philosophy which have emerged from the Greek period, the Roman period, the Medieval period, the Reformation period and the Modern period. They, too, have their individual shares in and contributions to the growth and development of the legal and philosophical systems of mankind.

A. POSITIVIST SCHOOL This school of thought developed at Yale, Oxford, and Cambridge beleves that there is no law unless it is promulgated by the State. Law is written down and explicit. The earliest codified Roman laws were the Jus Civilis, which was applicable to Roman citizens, and the Jus Gentium, which was applicable to the legal relations of Roman citizens with aliens ("perigrino") -- both of which were administered by a "praetor" or a judge. Emperor Justinian's greatest contribution to the growth of the legal system of the world was his codification of all Roman laws. The Romans made law systematic, as in the areas of family, persons, contracts, slavery, etc. During the Reformation Period, the world saw the rise of Protestant philosophers. Today (modern period), the world saw the rise of the sociological school, the functional school, and the school of modern legal realism.

The foremost proponent of the positivist school of law were Austin, Kelsen and Hobbes. Dura lex sed lex expresses the meat of the positivist school of law. To Austin, law is objective, authoritative, commanding, and empirical. It is the expression of the will of the state. Natural law and moral law do not matter. Law is not a moral concept. It must be free from metaphysical speculation. It is not made by God but by a superior sovereign. Law is the conscious will and command of the sovereign imposed on the subjects, who are liable to suffer penalties in case of violation thereof (authoritative enforcement system). To Kelsen, law is created by acts of men, not by God. For law to be stable, it must be based on empirical science, not metaphysics. It must be made as exact and as objective as the science of mathematics. In his "pure theory of law," Kelsen argued the removal of moral connotations and value judgments from law, i.e. of all non-legal elements. Law may be prescriptive, authoritative, permissive, or normative. Law is a positive norm of conduct, hence, it is uniform for all. Coercion and sanctions enforce law. In his pure theory of law, the focus is on "the law as it is", not on what it ought to be. Law is objective and precise, not subjective.

B. IMMANUEL KANT Kant was an advocate of the natural law theory. An advocate of human dignity (man as end in himself), supremacy of reason and free will (as God-given and inherent in man), equality, freedom, and mutuality of rights, and universal law of morality. It is reason that makes law and obeys law. Man knows what is natural right or natural law because he is rational and the precepts of natural law are inherently written in his heart and mind (conscience). "Practical reason" (the "good will" in man; the "empirical imperative") that makes law and compels the conscience of man to obey the law. Duty (to obey and revere the law and to do good to fellow men) is the highest virtue. Doing an act not out of "duty" (good will) is immoral, though it may be legal. His ideal society is one where all men possess the virtue of duty to do good. Man is a moral individual. He is not a chattel. Moral rightness is a matter of "motives" and legal rightness refers to "external acts." In his Metaphysics of Ethics, Kant wrote, "Every action is right which in itself, or in the maxim on which it proceeds, is such that it can co-exist with the freedom of the will of each and all, according to a universal law." Kant criticized Rossaeu's social contract theory because Kant believed that human rights are not contracted but are inherent in man (dignity, freedom, equality).

In a sense, Kant and St. Thomas agree that law is based on reason for the common good; that law is universal; and that natural law is inherent in the heart of men.

C. FUNCTIONAL SCHOOL The functional school of law developed in the United States. It focuses on the question: "Will this law work?" Law is one of experience. It is also called the "theory of sociological jurisprudence", "sociology of law," or "social science school of law." It focuses on the "operation and effects" of law in relation to the interests of society. The "interests of society", not the folk-soul or the pressures from the powerful elite, is the source of law. Montesquieu wrote that law is an evolutionary process. Law is a tool for the "balancing of interests" in society. It is a tool of "social control" or "social engineering." In a sense, it adheres to the tenets of "pragmatic ethics" or "ethical relativism" as it aims to serve the interests of society with the least friction. It adheres to, and is actually a type of, "legal positivism" and "legal realism." The main factors that define the law are expediency and the convenience of society. Its main proponent is Dean Roscoe Pound. There are three kinds of interests: individual, public, and social (or jural). All of these must be considered in the "legal ordering" of society (private rights and obligations vs. social interests). Since not all social conflicts can be compromised, some interests must give in. In social engineering, where compromise fails, the tools of arbitration, judicial action, purposive legislation, and decisive executive action must come in. The greatest good for the greatest number, or "social utilitarianism," is the main guidepost of the functional school. Law is pragmatic and dynamic.

D. MODERN LEGAL REALISM It is sometimes called "social legal realism," "modern legal realism," "American legal realism," "theory of ethical and legal pragmatism (empiricism) and experientialism." Its proponents were Sanders, Dewey, Storm and Holmes.

It believes that the law is what the courts say it is. Unless a case arises out of the interpretation and enforcement of a written law, there is no law because there is no judicial interpretation. A law is merely a law on paper unless a case arises to interpret it. Law is pragmatic, empirical and scientific. It is also relative, flexible and dynamic. The source of law is the social experience of the people. The school of modern legal realism criticizes the natural law school or the philosophical school because it believes that law has no metaphysical source. The end of law is "social contentment". It is an instrument of social control. It focuses its study on "the law that is", not on "the law that ought to be." Moral norms and natural law postulates do not decide court cases or determine social behavior. As stated earlier, the law is what the courts say it is and how the courts interpret and apply it (jurisprudence). That is the true source of law and the nature of law. Fact-finding is the most difficult and the most crucial task of courts. The judge, who determines and applies the law, is a real person, an imperfect human being, with biases and prejudices, and affected by all kinds of "metalegal stimuli". He is subject to all kinds of real socio-psychological pressures. In modern legal realism, congressional acts are not law but are a source of law. It is the adjudicative process of the judiciary which defines, interprets, and applies the law. In this school of thought, the emphasis is on the judicial process. Justice is equated with equality. The official promulgation of a law is not necessarily equal to the justness of its contents. Out of this school rose the "critical legal studies movement" in the United States, which, influenced by modern radical social theories, looked at law as being imposed by the ruling class or elite in society who controls the tools of production. The movement advanced the vision of positive equality (free open society), with law as an expression of the folk-soul of the people. The movement criticized the doctrine of stare decisis because it entrenched existing injustice in the legal system and that it protected the ruling elite. It argued that there were "indeterminate factors" in the judicial process which influenced the dynamics of law. It assailed courts for moving from legal analysis and reasoning to law-making (judicial legislation and judicial activism). It argued that legal objectivism and legal formalism (legal positivism, the coldness of the law, and the doctrine of dura lex sed lex) did not serve democracy and justice and that many legal procedures, rituals, formalities and technicalities impeded the administration of justice and alienated the people from the justice system. It exposed the weaknesses of the idealistic concept of democracy, i.e. popular democracy versus elitist democracy, and it called for the democratization of republicanism.

E. MARXIST OR COMMUNIST SCHOOL Karl Marx applied Hegel's dialectical method. He was the proponent of "dialectical materialism." From this theory proceeded the concepts of "class struggle" (laborers versus capitalists), supremacy of the State, and the inevitability of war among capitalist states caused by competition, greed and technology. Arguing for collectivism and centralized economic planning, Marxism identifies with the proletariat (workers). There is a perpetual struggle between the productive forces (labor) versus those who control the tools and modes of production (capitalists). Human history is the history of class struggle, class antagonism, and the exploitation of one class by another. Marxism calls for the absolute abolition of private property. Wage labor does not create property but it begets capital for exploitation by the capitalists. Three major theories predominate Marxism: historical materialism, surplus value, and class struggle. Historical materialism provides that the economic system is the infrastructure of the political system (economic determinism). The theory of surplus value provides that labor is a commodity that creates surplus value which is exploited by capitalists. The theory of class struggle provides that only the working class can destroy the old system and ultimately create a classless society. Law is a product of the economic system of society. The ruling elite (capitalists) determine, define, fix and impose the law on the exploited working class. When the working class shall have ultimately succeeded in destroying the old system, a classless society will be born, and state and law will "wither away" (utopia). In the interim (socialism), the state must keep class conflicts within bounds of order (hence, the need for centralized economic and political planning, with one political party in control of the state whose vision and mission are to serve the interests of the working people). Lenin wrote that state and law are instruments of class oppression. "The workers must destroy the state, and not simply seize it." In the transitional stage, the "dictatorship of the proletariat" is necessary to smash the control of the capitalist class. When utopia is achieved, the people govern themselves (self-government), class struggles ends, classless society is created, state and law wither away, communal life rules human relations, and the state owns all means and modes of production.

F. POLICY SCIENCE SCHOOL The policy science school of law developed at the Yale School of Law. Expounded by Lasswell and McDougal (Yale University), the policy science school argues law is not a mere body of rules, that it is a continuous process of democratization of social values, that it is a means for the equitable distribution of the social values, and that the seven basic social values (power, knowledge or enlightenment, respect, income or wealth, safety and health, liberty and equality) should guide law-making and the legal ordering of society. These values are translated by means of policy guidelines of the state. The policy science school is thus an advocacy of social values.

G. NATURAL LAW PHILOSOPHY The natural law school of legal philosophy was advocated by the Catholic Church and its theologians, foremost among whom was St. Thomas Aquinas. The Catholic Church dominated the medieval period and it had the best opportunity to develop the philosophy of natural law during such period. St. Thomas wrote the voluminous Summa Theologica. He described natural law as the participation of man in eternal or divine law thru his gift of reason. A law which is contrary to divine law is no law at all. A law is obeyed because of the persuasion of reason (reasonableness test). St. Thomas adopted and christianized the thoughts of Aristotle, a great Greek philosopher. The precepts of natural law are inherent in man and are written by God and reason in his heart, e.g. the quest for justice, dignity, compassion, freedom, truth, love, equality, and peace.

H. HEGELIAN PHILOSOPHY Immanuel Kant influenced Hegel in his philosophy of law. Like Schelling and Fichte, Hegel was an "speculative idealist" and an advocate of rationalism: "Whatever is rational is real and whatever is real is rational." To him, reason is the ultimate essence of the world or absolute reality. Every concept leads to its opposite (thesis-anti thesis-synthesis) and that there is an unending progress from thesis to antithesis and to synthesis, the latter being the

reconciliation of thesis and antithesis on a higher level. This is called the "dialectical method" (the triadic process). To Hegel, ethics culminates in the state and the state is the ethical idea and reason turned into reality: "In the organization of the state, ... the divine enters into the real." The state is a manifestation of the divine will. He wrote that all history is an evolutionary process whose ultimate goal is true liberty, and that liberty is only possible in a state, where man reaches his dignity as an independent person. He agreed with Roussaeu that in the "true state" it is the "universal" (the law) that governs and "the individual of his own free will subjects himself to its rule." It is part of the concept of man that he is free, Hegel wrote. The paradox was that in his latter years, he opposed the democratic or republican form of government because of its "subjectivism and atomism." He preferred the authoritarian state. Hegel justified war or revolution based on and as an application of the dialectical method (struggle of ideas).

I. JURAL AND NON-JURAL LAWS Jurisprudence is a science of how the law is applied by the courts. It answers the question: What does the court say? Its basic foundation is the doctrine of stare decisis. The United States and the United Kingdom, being of common law origin, are precedentoriented, while most countries in Europe, which are of positive law origin, are codeoriented. Jural law is the "lawyer's law" enforceable in court, e.g. statutes, administrative rules and regulations, opinions of jurists, private contracts, and court decisions. Non-jural law is the "unwritten law", e.g., customs and traditions, which may not be enforceable in court and yet influences the way jural law is applied by the courts. Divine law, moral law, natural law and the folk-soul of the people may be said to belong to the category of non-jural law.