Meaning of Legal Philosophy Philosophy is taken from the Greek words, Philo, sand Logos , which means love

of wisdom. Is the study of the universe that seeks to know the truth and rational explanation of anything. Legal Philosophy is the scholarly study of the law, legal theory, and legal sytems in general. Also called jurisprudencia universalis or simply jurisprudence Nature of Jurisprudence A. Proemium Case Law - the law to be found in the collection of the reported cases that form all or part of the body of law within a given jurisdiction. Jurisprudence (legal theory) deals with the general philosophy of law, which is the nature and elements of law. It is concerned with the theoretical and technical aspects of law as a discipline. Nature of Law - is concerned with its derivation, development, and trust Elements of the Law - deals with the concepts which are material to the legal ordering of society, namely: 1. State 2. Sovereignty 3. Legal relations 4. Legal persons 5. Legal facts 6. Legal things How may the nature of the law be fully appreciated 1. Systematic understanding of the essence of the different theories 2. Rationalizing differences whenever possible 3. Emphasizing harmony 4. Making allowances for the areas where they overlap 5.Balancing the ideas that have led to undue emphasis in one direction or another Distinguish Greek Concept and Roman Concept GREEKS v ROMANS The Greek concept of the nature of law is that the Greeks believe that it starts from the moral nature and observance of honesty and good faith of human beings. Although much of the Roman culture, including the concept of the nature of law, was borrowed from the Greeks, what distinguishes one from the other is that unlike the Greeks whose conception of the nature of law remained a philosophical speculation with them, the Roman jurisprudents subjected it to technical analysis and endorsed it with their authority and practical genius for colonization. So to speak, the Greek concept of the nature of law remains in theory (remains as just a bunch of ideas), while the Romans applied such theory (or theories) in controlling and extending their empire. Concepts of justice Socrates - Absolute Justice * Justice is not a series of actions or outcomes but rather the structure of soul. Socrates declares that justice is interlinked with the health of the soul: a just soul is a healthy soul, and thus it can be deduced from this proclamation that it pays to be just. No person is intentionally bad or evil because of his or her understanding of justice. Plato - Rational Justice * Plato posited the concept of justice yielding to the rational mind. Therefore, human beings are capable of discerning justice from injustice even in their minds. Rational justice is sufficient to enable human beings to attain their moral nature and good faith, keeping their self-respect by doing and fulfilling their functions in society. Such, every individual in the state should attend to his or her own function and not take up the role and position of another person. Aristotle - Particular Justice * Justice that grows out of the sense of fair equality. In other words, justice is sound and sensible when, in light of events and circumstances, it is fair and equal. Thus, particular justice is rendering as nearly as possible to every person what he or she is entitled to on the basis of "the rule of law".

The Different Schools of Jurisprudence 1. The historical school Appraises the law in the context of the commonconsciousness of a group of people. The question this school seeks to answer: Where did the law come from and how did it evolve? 2. The teleological school Thinks of the nature of the law in terms of the moral and rational nature of humankind. This school understands the law as strictly connected with morality and naturality. The question this school seeks to answer: What is the telos of the law? 3. The positivist school considers the law as a conscious norm of the state backed by its authority and force. For this school the law is not inherently moral or natural. The question this school seeks to answer: What is the distinctive structure and content of the law? 4. The functional school views the nature of the law in terms of the jural postulates, social interests and national policies of the people. The question this school seeks to answer: How does the law work in weighing or adjusting the competing individual and public interests? 5. The realist school takes the nature of the law on the basis of the on-going experiences and inter-experiences of people. The question this school seeks to answer: Is the law verifiable in the practical life of the people? 6. The policy science school looks at the nature of the law in relation to the degree of success of society in the creation, clarification and realization of social values Augustinian Concept For Augustine justice begins and ends with religious devotion, the love and adoration of God. Where God does not receive his due there can be no justice and no right (ius). He begins with Cicero, but then Augustine shifts the discussion away from the political vocabulary familiar to Latin thinkers and fills the term justice with scriptural content. From start to finish Augustine's approach is theological: Justice has to do with knowing and loving God. Piety, writes Dodaro, is the pinnacle of all civic virtues. But, because of sin, human beings are incapable of knowing and loving God without God's grace. Against the views of Roman statesmen and philosophers, Augustine argues that God is knowable only through the mystery of the Incarnation. Consequently there can be no justice without Christ. As the just person lives by faith, so the association of just men and women lives by faith active in love, the love by which one loves God alone and one's neighbor as oneself. Kantian Immanuel Kants theory of law is based on his transcendental philosophy which means that learning and understanding is determined by the mind itself and not gained by or through sense experience. So that, for a law to be an effective means of social control, it must be based on the priori precepts of the natural law. The inquiry of Kant into the problem of NATURE OF LAW involves two steps: The Principle of Rightness - Same with Thomas Aquinas -This means that the precepts of the natural law are not prompted by sense-experience but by ethical attitude to do what is right and avoid what is wrong with the application of the unique faculties of human consciousness. The Categorical Imperative - A person must dwell on the total dimensions if her or his consciousness, namely, thinking, volition, and judgment, and assume responsibility for injuries caused to other individuals.

-Includes the question of: how may conduct and decisions be considered to be in accord with the principle of rightness? Roman Roman concept of the nature of the law is mostly borrowed from the Greeks as much as their culture. Cicero incorporated the Greek concept of the nature of the law into the Roman legal system. He also introduced COMPULSION as an element of the law. He posited the idea that the law cannot be an effective means of social control on the basis of rationality alone but MUST ALSO BE ABLE TO COMPEL OBEDIENCE. For Cicero, the law, "is the natural force that effectively controls society, and its natural function is to summon the people TO OBEY IT by means of commands and avert wrongdoing by means of prohibition. Gaius classified the law. Rules established by the citizens to govern themselves fall under the JUS CIVILE. While the rules common to all other persons based on the natural law are classified under the JUS NATURALE. For Gaius, those that are not in line with the precepts of natural law are not laws at all. He advocated that laws must be reexamined once in a while to provide the means for legal cleansing whereby any abnnormality or irregularity in the legal order could be adjusted to comply with the end and purpose of the law. Hegelian The basic premise is that the law is the product of an evolutionary process which appears in a dialectic pattern. Hegel held that all concepts are actualized by this dialectic movement , that is to say a concept (thesis) may evoke an opposite idea (antithesis) and out of their reconciliation or identification emerges a real concept (synthesis). The synthesis becomes the prevailing idea or view of the times until an opposite antithesis appears and reconciliation or identification of the competing ideas or views is again necessary. The competing ideas are reconciled by means of the principle of identity which means "that all that is rational is real and what is real is rational." Otherwise stated, nothing is real or actual unless it is intelligible or rational as well, thus, anything which is intelligible is actual and anything that is actual is intelligible. Aquinian Thomas aquinas thought of law as an institution ordained by god, who is the legislator of the whole justice and governor of all things. he reiterated the idea of sophia or "right reason" which is the governing rule of human conduct for the common good which is preferrable to ones proper good because the common good of the whole is God himself. in the resurgence of christianity it is the Aquinian concept of legal philosophy that the Romish Church relies to this day.

c. that the laws in the books and statutes containing formal rules, legislations and expositions of particular subjects is not where the real law in society is to be found; d. that the law is not an absolute and static body of rules in themselves but are relative to time, place and society; e. that there is such a thing as social justice. However, views differ greatly as to what constitutes social justice and the achievement thereof What is the positivist approach on the law; the concept of law and state. There are two important points underlying the positivist approach to the problem of the nature of the law. They both refer to the recurrent question of the separation of law from moral law and from natural law.

o o

a.

Law not necessarily a moral concept

John Austin states that with the goodness or badness of the law as tried by the test of utility or by any of the various tests which divided the opinions of mankind The principal thrust, then of the positivist is to keep the legal order apart from the perplexities of ethics, just as the physicist would like to keep them out of the laboratory.

o o

b.

Uncluttered by metaphysical speculations

Views the issue by way of the empirical sphere of the reality the is rather than the transcendental sphere of the ideal - the ought, Do not hide disillusionment with the use of the natural law theory in the legal ordering of the society

Concept of law and state In the legal positivism of Thomas Hobbes and John Austin the state is perceived as the creator and enforcer of the law with the power to inflict evil or pain in case its desires are disregarded This does not meant that the state can do no wrong in the expression of its will. It only means that no right can be claimed against the state which it has not previously accepted. Legal Realist Perspective Known as Modern Legal Realism to describe the experiential outlook of this school of jurisprudence on the traditional assumptions on the nature of the legal order. Also labeled as Pragmatic Jurisprudence, which when used as a method of analysis, maintains that if there is no conceivable practical effect of a concept or idea, then there is simply no point in pursuing its analysis . The legal realist is more concerned with the operation of the legal order in terms of the experiences and interexperiences of the people in the legal ordering of society. This concern sets the legal realist apart from the adherents of the functional juristic school. Human Law and Experience The law should address human experiences past and present. the law should not be considered as a system of reason, not a deduction from ethical principles, corollaries and axioms, or what not. The life of the law has not been logic, it has been experience. The felt necessities of the times, the prevalent moral and political theories, intentions of public policy avowed or unconscious, even the prejudices which judges share with their fellow men, have had a lot to do than the syllogism in determiningthe rules by which men should be governed. John Chipman Gray, Harvard Professor His ideas on separation of the Law from its source - He emphasized that the law is not an ideal concept but something that actually exists. It is not that which is in accordance with nature, or religion, or morality, it is not that which ought to be but that which is. - in giving definition of what the law is, he stated: The law is the whole system of rules applied by the courts.

Functional Concept of law the functional school of jurisprudence views the law as a specialized form of social control for the solution, adjustment, or, if no better can be done, compromise of conflicting or overlapping claims, demands and expectations to secure as much as may be possible the social interests with the minimum of friction. Conflicting interest: first is the manner in which the conflicting or overlapping interests are presented for adjudication. not every claim, demand or expectation is necessarily classified as either individual or public interest. when conflicting or overlapping wants are presented for the purpose of adjustment, great care should be taken in order that claims, demands or expectations belonging to the same class are not stated or presented in unequal terms or levels. social engineering requires that the conflicting or overlapping interests must be stated or presented on the same plane whenever this is the case. second danger to be guarded against is the simplicity of expediency. it is easier to get things done by simply putting a claim, demand or expectation in terms of social interest or a competing public interest, or a competing individual or public interests. putting it differently, the valuation of the conflicting or overlapping interests should be stated in terms of what they really are. there should be no upgrading or downgrading. the reason for this is that in social engineering the solution , adjustment, or compromise is keyed to the jural postulates, social interests and national policies with the minimum of friction between the competing interests. Points for functionalism vs policy science a. that law is not unique but only one of the social control norms; b. that the socio-economic problem of the present time cannot be solved by means of the existing laws;

The law of the state or of any organized body of men is composed of the rules which the courts lay down for determination of legal rights and duties. The Law and Its Purpose - The administration of justice is considered as the end of the law. - In realist jurisprudence, a legal rule is not necessarily just merely because the legislative or the executive organ has promulgated it. Separation of Governmental Powers It involves more than a question of checks and balances on the exercise of governmental powers. It is concerned with the direct and indirect confrontation of core interests and functions between the legislative and executive power vis-vis the legislative power and vice versa. The purposive elements of this principle are: 1. to safeguard liberty by preventing the concentration of governmental authority in a single person or body of persons, 2. to ensure efficiency in the performance of governmental functions, and to fix responsibility 3. accountability in the exercise of such functions. This principle has been obscured by the fact that to a great extent the different branches of government have become the means for power and wealth of the dominant liberal class. The contemporary liberal order has become politicized to such an extent that governmental powers are no longer separated, they are not even shared. This is manifested in the performance of the designated functions of the distinct branches of the government Transformative Content of Post-Liberal Order 3 transformative contexts: 1. The decentralization of government. 2. The reorganization of the market economy. 3. The reconstruction of the system of rights Decentralization of Government The critical legal realists say that the legal ordering of the society is hampered by too much check and less balance and a lot more undue process of law in the execution of projects and activities especially in the area of exercise of executive power vis--vis use and practice of legislative power. 2 Factors stand out (problems): The avid competition for social and material goods. The extemporaneous and irresponsible uses of governmental powers. Elements: - accountability - devolution - effective and efficient decision-making - responsible and accountable party government The resolution: 1. Branches of government, regardless of number, should be designed to be accountable to the people. 2. Greater dispersal of governmental powers, function and powers down to the regional level of society. 3. Quick and clear resolutions of conflicting or overlapping interests among branches of government. 4. Concerned with the party in power. Reorganization of the Market Economy the equitable sharing and distribution of surplus or pure profit on the basis of effort exerted in its production. the equitable assignment of the more or less absolute claims to the divisible portion of the social capital to guarantee a constant flow of new enterprise in the market economy Reconstruction of the System of Rights In the post-liberal socio-legal order, new concepts of rights are introduced. These are: - the resistance right - the destabilization right

- the solidarity right - the market right. Resistance Right Gives every individual the fundamental sense of safety that enables him to accept a broadened practice of collective conflict without feeling his vital security endangered. One is given authority to be able to repel interferences with his vital security in the social and economic aspects of life. Destabilization Right is the counterpart of the equal protection clause enshrined in our constitution. insures that institutions do not accumulate power that may insulate them from challenge and accountability. is the institutional protection of an empowered democracy Market Right establishes the limits of the claims which a person or group of persons may make against capital available in society. enables every member of the society to question concentration of concessions of natural resources in one individual or group of individuals. gives a person the conditional and provisional claim to the divisible portions of the social capital established by the state. Social Legal Realism What is it about? Based on the philosophy of John Dewey (1859-1952). It holds that knowledge is part of life-experience involving the intercourse of a living being with his physical and social environment. Of the view that the life of the law cannot be understood apart from its social environment but must profit from social experience in the development of concepts, rules and regulations. Policy Science, Social value of Liberty, Equality and Respect Policy science means the discipline concerned with the formation, clarification and realization of social values. THE SOCIAL VALUE LIBERTY Due Process of Law The guaranty of procedural rights of the individual, that is to say restricted in application to procedure in the courts. Physical Context The security from restraints, personal liberty or freedom of the body from external physical compulsion. Liberty is manifested in the ability of a person to do the things which are essential to realize his or her conscience, opportunities and interests. Constituent Parts 1. Personal Liberty 2. Religious Liberty a. b. c. Freedom of Conscience Freedom of Worship Freedom of Religion

3. 4. 5.

Civil Liberty Political Liberty Economic Liberty

6.

National Liberty

THE SOCIAL VALUE EQUALITY Negative Aspect: 1) equality is not absolute similarity 2) equality is not an assurance that everyone shall, as a matter of fact, be the same in all relations Jural Inequality: material and relevant to the legal ordering Invalid view of Equality: equality means similarity of all matters of social relationship Positive Aspect: the point is that this social value is worth striving for in the areas or parts where they are attainable all men are equal Each persons well-being and happiness is as secure and inviolate as that of every other person Everyone has a rightful claim to equal treatment and protection of the law, regardless of any inconsequential and insignificant disparity

Constituent Parts John Rawls 1. the equal right of everyone to the total system of basic liberty 2. fair equality in opportunities to offices and positions in order to heighten the chances of those with lesser chance or opening equitable sharing of social goods as well as material goods to the greatest possible of the least favored THE SOCIAL VALUE RESPECT Regards for life and esteem for the dignity and worth of human personality. A. Regard for Life and Limb the free and unharmed possession of the complete body. B. Regard for Human Personality 1. Positive Phase Freedom from any kind of discrimination on grounds of race, sex, language, religion, political opinion, or, property status. The society has a great deal to do with the degree of respect a person may bestow or expect from another. 2. Negative Phase Individual initiative, choice and determination are hindered or inferred with (e.g. outlawing subversive organizations) As much as possible, respect for human right and freedoms should be always restored. Tension or Problem Area The social values of Liberty, Respect, and Equality form the problem area in the legal ordering of society. Unrestricted or unreasonable interferences by the government or by influential groups can destroy these social values, yet still the government is nonetheless essential to their maintenance, augmentation, and even preservation.

1.

Distinguish Functional school from policy science..

COMPARISON OF FUNCTIONAL AND POLICY SCIENCE SCHOOLS OF JURISPRUDENCE In comparison to the functional perspective, policy science is much broader in subject and in scope. The former deals with social justice and social interest whereas the latter involve a much broader meaning of social values. Functional school is applied mostly on a national point of view whereas policy science considers the global, regional and national legal orders in relation to social values.

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