DENNIS LLOYD : CONCEPTUAL THINKING OF LAW

Abasta | Adams | Albay

Atty. Rochelle Dakanay-Galano
Legal Philosophy
What Is Law?
Blacks Law Dictionary
Law is the regime that orders human activities and relations through systematic application of the force of politically
organized society, or through social pressure, backed by force, in such a society; the legal system.
Conceptual Thinking of Law
1. Abstract Conception:
- where in treating it as real entities has been and remains particularly strong in the field of legal
and political concepts where such concepts are highly-charged with various emotional overtones as in the case of the
law, the state, justice and so forth.
2. Law is certainly no mere game but is very closely related to actual human social life.
- the characteristic of a game is a self-contained system of rules w/c provide a framework of reference and meaning for
certain types of contest w/c can be fought out to a result w/in that framework.
3. Law and reality:
- law on the other hand, if it is a game, is one w/c operates not w/ self contained counters or pieces but w/ rules and
concepts w/c are related either directly or symbolically to matters and transactions w/c have occurred, are occurring or
are likely to occur in actual life.
- the law is therefore concerned to classify and regulate types of transactions w/c occur in real life.
Is Law Necessary?
Dennis Lloyd
Main Thesis: The answer to the question lies on your perception of mans nature. Whether or not man is in nature good or evil
would give us an answer to the question of necessity of law.
The Nature of Man
A. Man is by nature evil
Such nature should be curbed, if not, it will lead to total destruction of man.
Law then is the indispensable restraint upon the forces of evil.
Anarchy or absence of law is the supreme horror to be warded of.
B. Man is by nature good
People who believe in this nature of man seek to find the sources of the ills of mans present condition.
The defect in mans social environment is the true cause of the evils, which afflict him.
The legal system is the source of mans tribulations.
The Law and the forces of evil

Whether you see man as by nature evil or good, he still needs laws.
Mans nature is evil thus no social progress could be attained without the restraints of penal laws.
Man is good but due to sin, corruption or some internal weakness, mans original and true nature had become distorted
and thus required for its control the rigors of a primitive system of laws.
Idyllic Primitive Scene- refers to the golden ages where everything was in order no external system of legal rules, life
is simpler.
This served as a pattern for a movement toward a return to nature- going back to mans primitive, unspoiled nature
where there is a happier society in which uncorrupted natural impulse will replace coercive regimes.
Mans Nature is Evil
1. China (legists) argued that mans nature was initially evil and that the good ways in which men often acted were
due to the influence of the social environment, particularly the teaching of rituals and the restraints of penal laws.
2. India (shastra) man are by nature passionate and covetous and that if let to themselves, the world would
resemble a devils workshop where the logic of the fish (means: big ones would eat the little ones) would
reign.
3. Western Europe
a. Bodin original state of man was that of disorder, force, and violence.
b. Hobbes the life of primitive man was a state of perpetual warfare, where individual existence was bruttish,
nasty and short.
c. Hume without law, government and coercion, human society could not be exist and so law is a natural
necessity of man.
d. Machiavelli men are bad and will not observe faith towards you (traitors), you should not trust them.
A. The Golden Age
1. Ovid man dont need laws because it is written in his nature, yet everyone is safe because conscience is their
guard.
2. Seneca in the primitive innocence/state, men lived together in peace and happiness, having all things in
common, there is no private property, no slavery, no coercive government, no corruption, everyone is free and
equal.
This primitive innocence was a result of ignorance rather than virtue
This ignorance is the source of social evils later on. Such social evils necessitated an introduction of regime of law.
Corruption is a product of avarice. A fall of man.
B. Judeo-Christian
Paradise is the equivalent of the primitive innocence
The necessity of human law and coercive state, private property and slavery was derived from mans sinful nature,
which resulted from the Fall.
Law was a natural necessity after the Fall to mitigate the effects of sin.
Consequences of the Fall:
a. Family represented the coercive domination of the male against the freedom and equality of the primitive

paradise.
b. Slavery sin is a fit subject of enslavement.
C. The Theory of Law
1. Agustine
State law and coercion are not themselves sinful but are part of the divine orders as a means of restraining human
vices. Due to sin.
The hope of mankind is not in the sphere of social reform but rather by the attainment of a commonwealth of Gods
elect, a mystical society, which would replace the existing regime dominated by mans sinful nature.
Law is a natural necessity to curb mans sinful nature
2. By 13th Century
There was a change in emphasis due to Aristotelian influences
Mans nature might be corrupt and sinful but he still possessed a natural virtue which is capable of development
(Aristotles natural development of the State from mans social impulses)
3. Aquinas
State is not a necessary evil but a natural foundation in the development of human welfare.
Law is a beneficent force, not only in restraining evil but also for setting him upon the path of social harmony and
welfare.
Law the is not a negative force but a positive instrument for realizing those goals towards which mans good or social
impulses tend to direct him.
D. Man is by Nature Good (Anarchist viewpoint)
The concept of law is based on a wistful primitivism, nostalgia of the primeval past.
1. Plato
Pins his faith in a system of education which will not only produce adequate rulers but will also serve to condition the
rest of the population to the appropriate obedience.
2. Adam Smith
Laissez faire; free play of economic forces which could be assumed to work towards ultimate harmony.
Coercive law may be used to protect private property (an indispensable feature of free market)
3. Godwin
Evils of the society arose not from mans corrupt or sinful nature but from effects of oppressive human institutions.
Man is capable of unlimited progress, only coercive institutions and ignorance stand in the way.
Voluntary cooperation and education would enable all law to be abolished.
4. Bakunin and Kropotkin
State, law, coercion and private property were the enemies of human happiness and welfare.
5. Tolstoy
Man is universally good. There is no need for law.
6. Maude
Remove the law and induce men to believe that no fixed code or judgment should exist; and the only people who will be
able to get on at all decently will those who follow the traditional way of life.

7. Marx
Law is nothing but a coercive system devised to maintain the privileges of the property-owning class.
By the revolution of a classless society would be brought into being, the law and the state would wither away as being
no longer needed to support oppressive regimes.
Looks forward when social harmony will be attuned to the natural goodness of man, unimpeded by such environmental
snares as the institution of private property.
E. Innate Goodness and the price of Civilization
Man at the primitive level is innately or naturally good and that it is the social and political organization of civilized life,
which has introduced violence, and disorder which led to systems of legal coercion.
1. Elliot Smith
Most of the friction and discord of our lives are obviously the result of such exasperations and conflicts as civilization
creates.
The artificial aim, which is the object of envy and malice, is the source of conflict.
2. Herbert Read
The anarchist conceives society as a balance and harmony of groups; the only difficulty is their harmonious interrelation.
Universal decentralization of authority and simplification of life is essential.
Anarchism means a society without arkhos (ruler); it does not mean a society without laws and it does not mean a
society without order.
In the simplest form of society, some system of rules is necessary (ex. Rules on family relationship, food-gathering,
mating etc.)
Such society without rules is not just a society without order but the very negation of society itself.
Law and Freedom
Dennis Lloyd
Man is born free; yet everyone is in chains Rosseu
Man is never isolated and free in this sense but always a part of a community, and the degree of freedom he enjoys or the
extent of the social restraints imposed upon him will depend upon the social organization of which he is a member.
Ideal types of Society: Open and Closed societies
Open
Closed
-a wide field for personal decision and
for the assuming of individual responsibility
-increasing the role of the state in matters
concerning social welfare
ex.:
Democratic society Philippines
Totalitarian Society Soviet Union

- there is almost a tribal or collectivist pattern

- the community is completely dominant and
- the individual counts for little or nothing
Dictatorship the former Natzi Germany

Positive and Negative freedom:

Positive
Negative
- Spiritual conception, implying maximum
- Concerned with organizing the pattern of
opportunity for theself-realization of every
society, despite the restrains and limitations
individual to his full capacity as a human being
that are placed upon individual action for the
benefit of the society as a whole
Main Values Expressed in Legal freedom
1. Equality and Democracy
- To be insured in so far as practicable as Universal Franchise
- The principle of non-discrimination in regard to such matters as color, race, or creed
2. Freedom of Contract
- Laissez faire outbreak of 1914 war
The idea of freedom of contract was regarded as one of the supreme values of a developed society
- State interference in terms of economic sphere, was treated as a great evil
- A community of a free society could be best allowed to develop through the right of the citizens to make his own
contractual arrangements
3. Right of Property
- Property should not be arbitrarily acquired from private persons without adequate compensation.
4. Right of Association
- There are various types of groups.
- Difficulty: how far they may be legitimately restrained to protect the public against monopolies, restrictive practices,
or fraud.
5. Freedom of Labour
- Essential organs of the modern democratic community
- Difficulty: ability of a group of workers to hold to ransom not only a whole industry but even the whole economic life
of the country
6. Freedom from Want and Social Security
- The need to protect enjoyment of a reasonable standard of life
- Social Security: liability for ones own or someone elses negligence
7. Freedom from Speech and of the Press
- Fundamental Values in a democratic and egalitarian community
- Restraints: law of defamation, sedition, law of obscenity
- Difficulty: limits of tolerance
8. Freedom of Religion
- Established value in a democratic society
- Difficulty: conflict of religious doctrines and established public order
9. Personal Freedom
- Involves the whole community including aliens
10.
Rule of Law

Procedural guarantees which have been found necessary to ensure due process of law

Law and Force

Dennis Lloyd
Two essential elements:
Authority without the recognition of some authority whose decrees and sentences determine the structure of the order
in the world there can be no organized society and therefore the authority of divine rule makes possible the functioning
of the universe as a social whole.
Force without the element of force to ensure obedience to the divine decree the universe could never attain the role of
statehood.
Law and Customs
Dennis Lloyd
I. Law and Custom
- The phenomenon of a developed states is one which has emerged relatively infrequently in the history of human
culture.
II. Custom, Habit, and Convention
- CUSTOM: Custom in law is the established pattern of behavior that can be objectively verified within a particular
social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary
law exists where:
1. a certain legal practice is observed and
2. the relevant actors consider it to be law
-

The norms operating in less developed societies are referred to as customary law
HABIT: is a course of conduct which we regularly, though not necessarily invariable, pursue but without any sense of
obligation or compulsion to do so.
The vital difference between customs and habits is that those who accept the customs and adhere to them regard
themselves as in some way bound or obliged to observe them.
CONVENTION: certain observance of the society which, while not regarded as fully obligatory, may nevertheless be
regarded as proper modes of behavior which people are expected to carry out. Example: Acknowledging of letters or
of greetings. The special feature of convention is that while particular individuals may feel themselves bound to
observe it, it is not regarded as generally binding.
Customs and conventions are normative in the sense that they establish rules of conduct for compliance, habits do
not refer to or depend on norms, but simply involve regularities of behavior which are in fact observed.

III. Primitive Customs and International Law

- International law is based upon the established and gradually developing customs prevailing between civilized states.
Therefore, international law is a form of customary law.
- Primitive customs can thus be shown to possess many of the distinctive attributes of law while lacking, for the most
part, the vital centralized organs of law and government: namely, a legislator, a court, and an executive organ.
- Kelsen: international law is closely analogous to primitive law as it constitutes a binding normative system relying for
enforcement on self-help remedies, but lacks the centralized organs which are the features of developed law.
IV. Common Law and Customary Law
- Common law is the product of a sophisticated legal professional tradition and technique; unwritten, in the sense of
not being enacted, but contained in innumerable recorded decisions of the judges, whose judgments are the subject
of a continuous process of interpretation.
- The common law, however, was not a customary law in the same sense as the local customs which it replaced.
V. THE ROLE OF CUSTOM IN MODERN LAW
-

A. Local Custom
Two main ways in which custom may operate as a direct law-making source:
1. Recognition and enforcement of local custom
The purpose is to reduce cases of effective local custom to the barest possible minimum.
2. The custom to be valid, it must be found by the court to be not unreasonable
To ensure that the courts retain a considerable measure of control as to whether a custom is to be
accorded legal validity.
No custom can be regarded as authoritative in itself unless the court has set its judicial seal upon it.
B. Constitutional Custom
Regarded as binding politically and morally, but not in law.

C. Mercantile Custom
Evolved through the operation of commercial contracts.
The current of decisions of courts and of commercial arbitrators is able to absorb the effect of changes in business
customs and practices.

D. Standard-Form Contracts
Type of contract, consisting of a printed form in standardized terms and drawn up by independent or professional
bodies to consolidate or establish the best or fairest practices and rules recognized in the particular field of activity.

Law and Justice

Dennis Lloyd
I. What is Justice?

Is one of the aims or purposes which man sets himself in order to attain the good life.
A particular good may function either as a means or as an end in itself. For instance we may regard happiness as an
end in itself and liberty as a means of attaining happiness.
II. Platonic Justice
For Plato, the microcosm of the just man is a reflection of the pattern of the just society.
this conception seems to be that every thing or person for Plato thinks justice applies to objects as well as people.
In the same way, only the wise man is fit to rule, so that in a just society he alone will act as ruler.
ARISTOCRATIC IDEA: every person is inherently adapted to some specific function and that if he departs from that
function he is guilty of injustice.
PLATO: potential rulers are to be selected not by birth but by attainments and education before being qualified to rule.
Each man is by nature fitted for one specific job or function and that there is such a job or function adapted to each
persons natural attainments or aptitudes.
ARISTOTLE: some men are slaves by nature, and therefore only fitted for servitude.
III. Formal Justice and Equality
It is indeed the attainment of equality, not the preserving of inequality, that modern moral and legal philosophy treat as
the vital function of justice.
The law should be applied equally in all situations and to all persons to which it relates without fear or favour, to rich
and poor, to powerful and humble alike.
Law should be applied without discrimination.
Justice cannot mean that we are to treat everyone alike regardless of individual differences. (ex. Punishing an insane
person)
Like shall be treated as like, so that everyone who is classified as belonging to the same category, for a particular
purpose, is to be treated in the same way.
THREE RELATED CONCEPTIONS:
1. There shall be rules laying down how people are to be treated in given cases;
2. Such rules shall provide that everyone who qualifies as falling within the scope of the rule shall be governed
by it; and
3. Justice requires that these general rules shall be impartially applied. It should be applied without
discrimination, or fear or favour, to all those whose cases fall within the scope of the rules.
IV. Substantial Justice
A rule can hardly be said to be a rule at all unless it applies generally to whatever persons or situations fall within it. If
the rules are not applied impartially in accordance with their terms then there is really no system of rules at all.
V. Legal Justice
Justice is a much wider conception than law and may apply wherever there is a code of rules, legal or non-legal.
To what extent can it be said that a legal system partakes of the three features of formal justice: existence of rules, their
generality, and their impartial application?
1. It shall contain rules for regulating human behavior and for settling disputes. For the whole purpose of law is

to classify acts and situations, and to provide general rules for dealing with them;
2. Nothing can be qualify as a law unless it possesses the attribute of generality; and
3. Impartiality is generally closely associated with law in the sense that it is regarded as a highly desirable
attribute or aim of any legal system, but the practice, save in the most well-regulated of states, and not
invariably in those, is often very different.
English law developed a separate system of equity administered by a separate court in order to turn aside some of the
harshness of strict law and this institution has spread to all common-law countries.
JUSTICE AND MERCY: the close correspondence between formal justice and law in that both have felt the need for
softening their respective rigours to meet individual cases of hardship.
VI. Legal Injustice
Three types of case in which injustice in relation to law may arise:
1. When the law is, as we have seen, so closely linked in the general opinion of the idea of justice,
that it may itself be, treated as synonymous with justice. Legal injustice then may be done when a
case is decided in a sense contrary to what the law itself lays down. On the other hand, if the court were,
contrary to established law, to decide in favour of the plaintiff, this might be morally just but it would still
amount to legal injustice.
2. When the law is not duly administered in that spirit of impartiality which it requires. For example,
a court finds facts in favour of a powerful litigant, not because it is genuinely persuaded of their truth but
because it wishes to show favour to the powerful either out of fear of the consequences of an adverse
decision or on account of bribery or hope of future benefit. Then legal injustice has been committed.
3. When the law, though perfectly impartially administered according to its tenor is itself unjust if
judged by whatever value system may be applied to test the substantial justice of the legal
rule. According to Hobbes, the only standard of justice is the law itself, so that whatever rule the law lays
down must ipso facto be just.
VII. Law and Substantial Justice
Law needs to possess a just content, and this can only mean that its actual rules must themselves by their provisions
aim at and endeavor to conform to some criteria of rightness which repose on values exterior to justice itself in the
sense that no merely formal idea of justice can dictate to us the basis upon which we are to prefer one set of values to
another
Two principal ways in which a legal system may aspire to attain not merely formal but also substantial justice so far as
this is reflected in the value system:
1. By imparting a certain flexibility in the rules applied by the courts or other organs of legal administration so
as to confer on the judges and other legal officials the possibility of developing the law and adapting it to
the needs of the society in which it operates.
2. By giving the judiciary and other officers of the law, more specific guidance as to the values they should
adhere to in arriving at decisions or expositions of the law or in framing new legislation
Law vs. Morals
Dennis Lloyd

According to Socrates, the overriding moral duty might be to obey the law. There is overlap between law and morals. For both
are concerned to impose certain standards of conduct without which human society would hardly survive and, in many of
these fundamental standards, law and morality reinforce and supplement each other as part of the fabric of social life. This
correspondence of language, although it brings out the interrelation of two spheres, is also dangerous as it tends to trap the
unwary into thinking that law must necessarily connote moral obligation or that moral obligation needs must be translated
into law.
There are differences between legal rules and moral rules.
LAW
MORALS
- A set of rules and principles created and- a set of beliefs, values principles and standards of
enforced by the state.
behavior created by society.
- Created by formal intuition e.g. parliament.
- No formal creation exists.
- Laws can be instantly made and
- Form slowly and change slowly as societys
instantly cancelled.
attitudes change
- Its existence can be established
- Much vaguer in definition
(ex. Civil Status)
(ex. Homosexuality)
- Breach of law leads to some form of
- Breach of morals leads to some form of social
punishment or remedy enforced by the state. condemnation but the state is not involved.
- Societys attitude to law is irrelevant.
- Morals are rules that reflect societys values and
beliefs.
What Makes a Law Law?
Dennis Lloyd
It is the application of the law to reality. Not only enactment of the law but also its enforcement.
The law has to be codified.
Austin: Laws are commands of a sovereign.
The concept of positive law (man-made law):

Commands involve an expressed wish that something be done, combined with a willingness and ability to impose an evil if that
wish is not complied with.

Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (drink wine
today or John Major must drink wine).

Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God's

general commands, and the general commands of an employer to an employee.

The sovereign is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the
population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political
societies, by their nature, have a sovereign.

Introduction

Every branch of knowledge is better understood by knowing its history. In a historical perspective is usually preceded by
the teleological school of jurisprudence but a historical approach we would be able to study the nature of the law. It is said
human beings have lived together as groups however there are some inevitable conflicts that needs to be resolved hence the
creation of law that would promote harmony. In a historical perspective we would usually encounter Fredrich Karl von Savigny
that says that law proceeds from volkgeist (concept of the soul and spirit of the people which provides the sense of beginning
and unfolding of the law.) We would also encounter the renaissance of the natural law theory.

History (from Greek - historia, meaning "inquiry, knowledge acquired by investigation") is an umbrella term
that relates to past events as well as the discovery, collection, organization, and presentation of information about these
events. Wikipedia

"Since history has no properly scientific value, its only purpose is educative. And if historians neglect to educate the public, if they fail to
interest it intelligently in the past, then all their historical learning is valueless except in so far as it educates themselves." G. M.
Trevelyan. Indeed, it is true. We can never change anything in the past (be it regretful or fulfilling). The only thing we can do is learn
from it and make the future better than what we have experienced. "History is for human self-knowledge. Knowing yourself means
knowing, first, what it is to be a person; secondly, knowing what it is to be the kind of person you are; and thirdly, knowing what it is to be
the person you are and nobody else is. Knowing yourself means knowing what you can do; and since nobody knows what they can do
until they try, the only clue to what man can do is what man has done. The value of history, then, is that it teaches us what man has done
and thus what man is." R. G. Collingwood

The Historian and His Facts by Edward Hallett Carr

What is History? It is a unique opportunity of recording, in the way most useful to the greatest number, the fullness of
the knowledge which the nineteenth century is about to bequeath.... By the judicious division of labour we should be able to
do it, and to bring home to every man the last document, and the ripest conclusions of international research. Ultimate history
we cannot have in this generation; but we can dispose of conventional history, and show the point we have reached on the
road from one to the other, now that all information is within reach, and every problem has become capable of solution. (Acton

in his report of October 1896 to the Syndics of the Cambridge University)

The Belief of Ultimate History (a contradicting point)

Historians of a later generation do not look forward to any such prospect. They expect their work to be superseded
again and again. They consider that knowledge of the past has come down through one or more human minds, has been
'processed' by them, and therefore cannot consist of elemental and impersonal atoms which nothing can alter....The
exploration seems to be endless, and some impatient scholars take refuge in scepticism, or at least in the doctrine that, since
all historical judgements involve persons and points of view, one is as good as another and there is no 'objective' historical
truth. (Professor Sir George Clark, in his general introduction to the second Cambridge Modern History;almost 60 years after
Actons report)

The clash between Acton and Sir George Clark is a reflection of the change in our total outlook on society over the interval
between these two pronouncements. Acton speaks out of the positive belief, the clear-eyed self-confidence, of the later
Victorian age; Sir George Clark echoes the bewilderment sad distracted scepticism of the beat generation. When we attempt
to answer the question 'What is history? our answer, consciously or unconsciously, reflects our own position in time, and
forms part of our answer to the broader question what view we take of the society in which we live.

No wonder why Acton was a positivist; he lived in the nineteenth century where it was a great age for facts. As a
positivist, he belonged to the group, which is anxious to stake out their claim for history as a science, contributed the weight
of their influence to this cult of facts. Facts, like sense-impressions, impinge on the observer from outside and are
independent of his consciousness. The process of reception is passive: having received the data, he then acts on them.

What is the criterion which distinguishes the facts of history from other facts about the past?

According to the common-sense view, there are certain basic facts which are the same for all historians and which form, so to
speak, the backbone of history - the fact, for example, that the Battle of Hastings was fought in 1066 boils down to two
observations:

a) Common element; virtual facts. 'Accuracy is a duty, not a virtue'." To praise a historian for his accuracy is like praising
an architect for using well-seasoned timber or properly mixed concrete in his building. It is a necessary condition of his
work, but not his essential function. It is precisely for matters of this kind that the historian is entitled to rely on what
have been called the 'auxiliary sciences' of history archaeology, epigraphy, numismatics, chronology, and so forth.
b) A priori decision. The facts, speak only when the historian calls on them: it is he who decides to which facts to give the
door, and in what order or context. A fact is like a sack - it won't stand up till you've put something in it.
Ex: At Stalybridge Wakes in 1850, a vendor of gingerbread, as the result of some petty dispute, was deliberately kicked
to death by an angry mob. Is this a fact of history? No.

The one-sided view

As Bury, who had worked in both periods (ancient and medieval history), said, 'the records of ancient and medieval
history are starred with lacunae.' History has been called an enormous jig-saw with a lot of missing parts. But the main trouble
does not consist in the lacunae. Our picture of Greece in the fifth century B.C. is defective not primarily because so many of
the bits have been accidentally lost, but because it is, by and large, the picture formed by a tiny group of people in the city of
Athens. We know a lot about what fifth-century Greece looked like to an Athenian citizen; but hardly anything about what it
looked like to a Spartan, a Corinthian, or a Theban - not to mention a Persian, or a slave or other non-citizen resident in
Athens. Our picture has been preselected and predetermined for us, not so much by accident as by people who were
consciously or unconsciously imbued with a particular view and thought the facts which supported that view worth preserving.

The history we read writes Professor Barraclough, himself trained as a medievalist, though based on facts, is, strictly
speaking, not factual at all, but a series of accepted judgments."

If you find it in the documents, it is so.

The nineteenth-century fetishism of facts was completed and justified by a fetishism of documents. The documents were the
Art of the Covenant in the temple of facts. The reverent historian approached them with bowed head and spoke of them in
awed tones... No document can tell us more than what the author of the document thought - what he thought had happened,

what he thought ought to happen or would happen, or perhaps only what he wanted others to think he thought, or even only
what he himself thought he thought. None of this means anything until the historian has got to work on it and deciphered it.
The facts, whether found in documents or not, have still to be processed by the historian before he can make any use of them:
the use he makes of them is, if I may put it that way, the processing process.

Historians on What is History?

Ranke piously believed that divine providence would take care of the meaning of history, if he took care of the facts.
Professor Butterfield noted with apparent satisfaction that 'historians have reflected little upon the nature of things,
and even the nature of their own subject'.
Dr A. L. Rowse, more justly critical, wrote of Sir Winston Churchill's World Crisis - his book about the First World War that, while it matched Trotsky's History of the Russian Revolution in personality, vividness, and vitality, it was inferior in
one respect: it had 'no philosophy of history behind it'. British historians refused to be drawn, not because they believed
that history had no meaning, but because they believed that its meaning was implicit and self-evident.
All history is 'contemporary history', declared Croce,' meaning that history consists essentially in seeing the past
through the eyes of the present and in the light of its problems, and that the main work of the historian is not to record,
but to evaluate; for, if he does not evaluate, how can he know what is worth recording?
Carl Becker, argued in deliberately provocative language that 'the facts of history do not exist for any historian till he
creates them'.
The views of Collingwood can be summarized as follows. The philosophy of history is concerned neither with 'the past
by itself' nor with 'the historian's thought about it by itself', but with 'the two things in their mutual relations'. (This
dictum reflects the two current meanings of the word 'history' - the inquiry conducted by the historian and the series of
past events into which he inquires.) 'The past which a historian studies is not a dead past, but a past which in some
sense is still living in the present.' But a past act is dead, i.e. meaningless to the historian, unless he can understand the
thought that lay behind it. Hence 'all history is the history of thought', and 'history is the re-enactment in the historian's
mind of the thought whose history he is studying'.
' History', says Professor Oakeshott, who on this point stands near to Collingwood, is the historian's experience. It is
"made by nobody save the historian: to write history is the only way of making it.
Neglected Truths

The facts of history never come to us 'pure', since they do not and cannot exist in a pure form: they are always refracted
through the mind of the recorder. For if, as Collingwood says, the historian must re-enact in thought what has gone on in

the mind of his dramatis personae, so the reader in his turn must re-enact what goes on in the mind of the historian.
Study the historian before you begin to study the facts. History means interpretation. Indeed, if, standing Sir George
Clark on his head, I were to call history 'a hard core of interpretation surrounded by a pulp of disputable facts'
The historian's need of imaginative understanding for the minds of the people with whom he is dealing, for the thought
behind their acts: I say imaginative understanding, not sympathy, lest sympathy should be supposed to imply
agreement. History cannot be written unless the historian can achieve some kind of contact with the mind of those
about whom he is writing.
The third point is that we can view the past, and achieve our understanding of the past, only through the eyes of the
present. The historian is of his own age, and is bound to it by the conditions of human existence. The historian belongs
not to the past but to the present. Professor Trevor-Roper tells us that the historian 'ought to love the past'. This is a
dubious injunction. To love the past may easily be an expression of the nostalgic romanticism of old men and old
societies, a symptom of loss of faith and interest in the present or future.
The function of the historian is neither to love the past nor to emancipate himself from the past, but to master and
understand it as the key to the understanding of the present.

Collingwood seems indeed, at one moment, in an unpublished note quoted by his editor, to have reached this conclusion:
St Augustine looked at history from the point of view of the early Christian; Tillamont, from that of a seventeenthcentury Frenchman; Gibbon, from that of an eighteenth-century Englishman; Mommsen from that of a nineteenthcentury German. There is no point in asking which was the right point of view. Each was the only one possible for the
man who adopted it.

Obligation of the Historian to his facts

The duty of the historian to respect his facts is not exhausted by the obligation to see that his facts are accurate. He
must seek to bring into the picture all known or knowable facts relevant, in one sense or another, to the theme on which he is
engaged and to the interpretation proposed. If he seeks to depict the Victorian Englishman as a moral and rational being, he
must not forget what happened at Starybridge Wakes in 1850. But this, in turn, does not mean that he can eliminate
interpretation, which is the life-blood of history.

The historian is neither the humble slave nor the tyrannical master of Ids facts. The relation between the historian and his
facts is one of equality, of give-and-take.

The historian and the facts of history are necessary to one another. The historian without his facts is rootless and futile; the
facts without their historian are dead and meaningless.

What is history? Is a continuous process of interaction between the historian and his facts, an unending dialogue between
the present and the past. E.H. Carr

Constitutionalism and the Changing World by Charles Howard McIlwain

What is constitutionalism?

Constitutionalism is the idea, often associated with the political theories of John Locke and the founders of the American
republic, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its
observing these limitations.

Giovanni Sartori defines liberal constitutionalism as constituting the following elements: (1) there is a higher law, either
written or unwritten, called constitution; (2) there is judicial review; (3) there is an independent judiciary comprised of
independent judges dedicated to legal reasoning; (4) possibly, there is due process of law; and, most basically, (5) there is a
binding procedure establishing the method of law-making which remains an effective brake on the bare-will conception of law
(Sartori, 1987, p. 309). Sartori's definition emphasizes the "rule of law" side of liberal constitutionalism.

HISTORIAN'S PART IN CHANGING A WORLD

Men and women have been asking themselves as earnestly and as anxiously as they are asking now, the old question, so
often asked before, whether historians have anything practical to offer to our country and to the world in times of crisis and if
they have, how can they make particular contribution most effectively.

History is only an act of faith

The writing of history, they tell us, is only an "act of faith." This intellectual weariness is no new thing in the world. The
historians is after all faced with the brutal fact that some things did actually happen in the past and that some record of these
happenings sometimes survives. And if these happened, they had definite historical causes and results of which we often have
some account remaining, even if incomplete. Plato spent his life in combating this among the Sophists. The Behaviourists
would believe that blind animal instinct along determines human destiny, and fervid nationalists are setting up the menace of
a particular tribal culture against the historical verdicts of universal human reason. As Gorgias said in the Socratic dialogue,
even if there were an objective truth, we could never recognize it. History is a vain quest. Some "lessons of history we know
will always be drawn, some "lessons of history" will always be acted on. Our part is to see that these really are the lessons of
history.

"To find out what really happened"

The late Professor Tout said in the opening part of his great work on English medieval administrative institutions that "we
investigate the past, not to deduce practical political lessons but to find out what really happened." There are more than hints

in certain parts of the world that all past history must be rewritten for a present purpose.

Contemporary problems

The most serious defects in the existing histories of past institutions--the kind of histories with which McIlwain is most
familiar--lie, not in any undue suppression of modern modes of thought and action, but rather in their untimely intrusion. Thus
the chief advances made in the recent study of these institutional developments have come from a recognition of such
defects.

Sir Edward Coke once laid down for law: contemporanea expositio fortissima est. (Contemporaneous exposition is the
best and most powerful in the law.)
Infractions of this rule naturally come oftener in some kinds of history than in others and are far more frequent for
certain periods. For contemporary or recent history the danger is slight, for there familiarity with present-day conditions
forms the necessary basis of all accurate historical judgments; and even in ancient history the faults are likely to be of a
very different kind. It is the stage of growth immediately behind us, in which were laid the foundations on which the
social and political fabric still stands.
Maitland says that, "We shall have to think away distinctions which seem to us as clear as the sunshine; we must think
ourselves back into a twilight. This we must do, not in a haphazard fashion, but of set purpose, knowing what we are
doing."
Actual changes like this in peoples attitude toward particular historical problems have, however, not as a rule come
about wholesale, or from any "set purpose". They have usually come piecemeal because someone has been steeping
himself in the thought and motives of some past epoch by extensive and careful reading of the records or writings of the
time, and one day wakes up to find--usually to his utter amazement--that this thought or these motives and institutions
are not at all the ones he has been reading about all these years in the standard modern books. Perhaps, fundamental
change in the language must be the index of much more . These may be only terms of law, but they touch life in all its
phases.
These made McIlwain realized that men like Lambarde or Fitzherbert in Elizabeth's time, when they spoke of parliament, were
thinking of something in many ways different from what he had learned. It is a little shocking to find the actual makers or the
contemporary recorders of the past saying or doing or thinking something entirely different from the thing we have always
had in mind, or, what is worse, have even been teaching to others as history. On the contrary, nine times out of ten it is just

because these notions are too modern that the historian finally discovers that they do not fit the actual facts, that they furnish
no explanation at all, or an obviously inadequate or even a distorted explanation of past movements and actions.

Salisbury oath of 1086

In August 1086 William I summoned landowning men of any account to attend at Salisbury and swear allegiance to him
and to be faithful against all other men. The oath was demanded at a time of crisis when the Conqueror was facing
revolt and invasion. There seems little doubt that it was intended as a practical assurance and reminder rather than as a
constitutional statement.
Feudal System
May be defined as a "political-social organization based on land tenure and military service".
Following the
Peterborough Chronicle, Freeman seems to accept its statement that unique "Gemot of Salisbury", which destroyed
feudalism forever in England.
Anglo-Norman Period
The Normans, who were residing in Normandy (France) defeated the Anglo-Saxon King at the Battle of Hastings (1066) and
conquered England. The Norman Conquest inaugurated a distinctly new epoch in the literary as well as political history of
England. The Anglo-Saxon authors were then as suddenly and permanently displaced as the Anglo-Saxon king.
Anglo-Norman history tend in one direction, they amount to a fundamental change in the notion of whole of the social and
political institutions in operations in that important period. It modify the ideas respecting almost every side of men's life at the
time.
The changes noted above in our ideas about Norman England have come almost invariably from an enlarged estimate the
importance of feudal relations in the life of that period; and yet, if there is one thing conspicuous by its absence in the life and
thought our own time, it is feudalism. What really produced this great change, then, was no reading in of modern modes of
thought or action, but a reading out. It has resulted from no attempt, conscious or unconscious, to rewrite this part of the past
in our own terms, but rather from a realization, born of careful research into the records of the time, that those records
actually tell a story different from the one we have hitherto accepted as history.

Writ of Henry I
It is another important institution of the same period furnishing a similar illustration of the change in historical treatment is the
county court and the membership of that court under the Norman kings. Even Bishop Stubbs seemed to regard attendance at

the court as a privilege or honor so much cherished in twelfth century England that King Henry I found it necessary in a writ
which still survives to restore the frequency and regularity of its meetings after a period of interruption. Attendance at these
courts was no honor that members prized or communities sought for. The well-known writ of Henry I for holding the county
and hundred courts, it is thought, is not then, as Stubbs and his predecessors assumed, an order for the holding of these
courts oftener than before; it is a command that they should meet less often. The amount of suit at court shall not be
increased for the local communities; as the contemporary author of the so-called Laws of Henry I puts it, they are not "to be
worried further by any wearisome burdens" (nec ullis ultra fatigationibus agitari). The grievance redressed here is not too little
representation, but too much. This has diverged pretty far from Freeman's conception of a great national assembly at whose
meetings "the whole people had an acknowledged right to attend". What was formerly considered a national privilege turns to
be only a feudal burden.

Trial by peers
The right of a person to be tried by a jury of one's peers is traditionally founded on a provision contained in Chapter 39
of that great document of English law, the Magna Carta. That provision, states: "No freeman shall be taken or
imprisoned, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor (condemn him),
but by lawful judgment of his own peers, or by the law of the land."
In 1853 Sir Edward Creasy described the Great Charter of King John as "a solemn instrument deliberately agreed on by the
King, the prelates, the great barons, the gentry, the burghers, the yeomanry, and all the freemen of the realm". Of the famous
words of its thirty-ninth chapter, "except by the lawful judgment of his peers, or by the law of the land", he said, "I believe that
the trial by peers here spoken of means trial by jury.

Due Process of Law

Subsequent generations -- including the authors of the Bill of Rights -- came to regard this provision as one of the
principal legal guarantees of liberty under the common law. This belief came on the basis that the clause not only
provided for a formal trial for any alleged wrongdoer instead of arbitrary judgment and summary execution, but also on
the basis that it provided for trial by jury. They felt the phrase "... but by lawful judgment of his peers" ensured a fair trial
and provided a safeguard against unwarranted interference with the rights and liberties of the subject.
"The king ought not to be under a man but under God and the law."
-Bracton
"What we were looking for has all this while been rolling before our feet and we never saw it." -Socrates

"As historians, our real task is with history, not with its application; but when troubles come upon us, the question will
always emerge--it will not down--whether it belongs to the historian, even if not strictly as a historian, to find in all these
facts and developments, assuming them to be accurate, any lessons of value that may be practically useful. I sincerely
believe that it does; but like that other "earnest desirer of his countrie's peace" already referred to, if I tried to urge
any such lessons for our present troubles, I should be "telling my medicine" only as a bystander, and not as a physician.
If there are any practical inferences to be drawn from this jumbled survey, therefore, I leave them for you to draw."
-C.H. McIlwain.

Philippines: History and The development of Philippine Law

In the book The Philippines: A past revisited written by a famous leftist historian of the Philippines Renato Constantino
with some insights of legal philosophy of Crisolito Pascual may show us in a historical perspective the development of law by
giving us a window to past.

Volkgeist(kautusan ng sambayanan) Gave rise to the Oblutiacs (opinions, beliefs, longings, usages, traditions,

idiosyncrasies, arts, customs and superstitions) which gave common consciousness and intelligence to the people. Having
aware of the Volkgeist the folksoul gave life to the law since it greatly deals with moral suasion. Undoubtedly before the
establishment of legal order Folksoul governed the conduct of the people.

FolksoulSpiritual teachings of ethnics.

-

Folklore: composed of common beliefs and traditions of group of people.

Folksaying: composed of strong opinions of the people. (maxim)
Folkway: composed of custom and usage of the people. (kaugalian)

Spanish Era

This folk soul may have provided a conduct to of people but in some history suggest that the early Philippines practice
where kings/datus are also the law. Moving ahead to when Ferdinand Magellan discovered the Philippines and then we were
colonized by Spain where we were a little bit civilized and legal order was really established however the laws formed to
oppressed the Filipinos and favor the Spaniards as if we could only achieve the status of peasants. Some accounts would even
state Spaniards taught us Christianity to keep us under fear. After having a revolutionary consciousness the local elite moved
and contributed to the Philippine Revolution in 1896.The denial of basic political and civil rights became the principal subjects
of the ilustrados.

American Era

After the Spanish era there came the establishment of the first Philippine Republic. In the treaty of Paris Spain gave
America the control over the Philippines which was not recognized by the Philippine Republic hence declaring war against the
Americans. In the American occupation, those elite or ilustrados who helped in the movement in the Spanish war was anxious
to protect their own economic position and adopted capitulationism and had collaborative attitude toward the new colonizers.
The ilustrados went over to the American side and gave the an helping and in the propaganda to slander the mass movement
and justify to the military intervention by massive campaign of acculturation, miseducation and implantation of American
political institutions and customs in the evolving colonial society. The result of the propaganda was success where it created a
people with a national identity but with a steadily eroded sense of national consciousness.

Early American administrators initiated the idea of political self-rule as colonial which was accepted by the ilustrados
since the want participation in the government. (If Spain had accommodated the idea of government participation in the
government the ilustrados would have sided with Spain). The success of American colonialism allowed the Americans to
establish a colonial economy suited to their requirements with minimal objection from Filipinos who had a little understanding
of imperialism.

Public school system and English language was implemented. This made a new generation of leaders to succeed the
ilustrado collaborationist. Philippine politics became a colonial version of American ward politics and featured a perpetual
scramble for position and patronage. The subtle approach of the Americans made Filipinos forget the brutalities of American
campaigns and suppression. Whenever violence erupted, the peasants were confronted either by the landlords, private
armies, the provincial police or the Constabulary which were all Filipinos.

Chaos arise in the world war two when Hitler successive annexations of countries such as AUstia, Italy and Poland. It
spread war all over Europe. The Filipinos saw the world events through the American eyes and responded as American
colonies. Anti dependence from America arose since it was being too comfortable under the wings of the United state. Filipinos
gave too much confidence in the power of the US which gave them a false sense of Security.

Japanese Era

Since Filipinos were so convinced with the invincibility of America they did not seriously considered the possibility of
Japanese occupation. Some even thought that Japan would not be foolish enough to seize Philippines since it was afraid of the
power of the US however many were shocked. Japanese belligerents also tried to win the hearts of the Filipinos the same way
Americans did however they were not that effective. Their theme was Asians should unite to drive the white man from Asia
and proper under the leadership of Japan. Filipinos become so westernized that they even consider themselves as superior to
the Japanese. However despite the belligerent occupation, Filipinos still look up to USs invincibility in a symbol of a man
named General Douglas Mac Arthur even though Japans invasion rudely shattered the Filipinos safe colonial world.

Role of Douglas Mac Arthur

Douglas Mac Arthur was a symbol of hope for the Filipinos that US would still save them. In fact his return vitally affected
the nation. In the facts of history, although the war power of the US is really strong, the US military tactic was not to defend
the Philippines. There was an agreement called Taft-Katsura and Root-Takahira agreement the in exchange of Korea and
Southern Manchuria Japan must recognize American Supremacy over the Philippines. The contingency plans for a war
between the US and Japan under codename War Plan Orange was to show the US gave a fight nonetheless they view the
Philippine Island is not worth defending. The official policy of no improvements, no reinforcements and no withdrawal meant
that US would maintain military presence but would not spend on more and that US would abandon after a brief pro forma
resistance. Mac Arthur knew of this policy.

D. MacArthur although viewed as a demi god of the Filipinos as a hope for the Philippines had some ambitions out of his
own interest. Mac Arthur was honest enough to confess that although America taught the Philippines to be independent,
education, sanitation and so much more, they did not prepare the Philippines to defend itself against a foreign foe. Mac Arthur
wanted to be a Military adviser of the Philippines and the high commissioner at the same time which he also suggested to
Roosevelt to act a special legislation to make it possible without resigning the other position but despite Roosevelts effort it
failed.

In being a military adviser which Mac Arthur chose the title Field Marshal demanded that he be paid $18,000 per annum
plus another $15,000 as yearly allowance in addition to his military pay. He also got the penthouse of Manila Hotel to be a
sumptuous air-conditioned quarters for his use. His income was reported to make a profitable investment in mining stocks.
Mac Arthur was said have authored the National Defence Act which required all Filipino boys of age of twenty to serve for five
and a half months and undergo military training and serve the Philippines Army. Mac Arthurs defence plan was to defend the
entire archipelago. The defence plan was reported to be a success but it was only a morale booster, US war department even
refuse to send some surplus and obsolete weapons and equipment. In the real picture it was a flop due to lack of materials
and experience.

Philippine Constitution

The Constitution states the rules and principles which serve as the fundamental law of the land. It has been rewritten
several times. The political evolution and every significant event in the Philippine history resulted a change in the constitution.

The first was at Biak na Bato in 1897 where its objectives was to revolt against the Spaniards. The second one is the Malolos
Constitution where a new government was set up as Philippine Republic. However the first two were not enforced the first
Constitution was by the virtue of Tyding-Mc Duffie Law in 1934 during the Commonwealth period. Next is the 1943
Constitution for the Japanization. Another revision in 1946. The 1973 Constitution in where Marcos abolished the Congress.
Finally the 1987 Constitution or freedom constitution.

Sumarry and conclusion

History is a continuous process of interaction between the historian and his facts, an unending dialogue between the
present and the past. (Carr, 1917) The facts speak for themselves and facts layout directly should be written however such
writing is not enough. History must be written with imaginative understanding looking into it from the eye of the present.

Law is actually a compilation of experience that relates to human life. It is essential to human to resolve conflicts but as
a natural moral being that springs from the fountain of good conscience. Folk soul or folk minds are the set of conducts that
the people followed based on human experience which became a source of law. Some old folk saying are still present in our
laws today like. Even though folk soul is the first source of law, some folk souls were abolished as being inconsistent with the
law.

In the Philippines where we were colonized by Spaniards, Western civilization, and a Strong Asian country no doubt the
Philippines has suffered from identity crisis. Almost three centuries by Spain where we adapt the civil law and Christianity
which is now inherent to our lives. This was somehow changed during the American occupation for four decades through a
subtle approach which was effective and visible until now. In a short Japanese regime which we were to believe that was only
a belligerent occupation did not contribute much but rather viewed as a nightmare. Despite this, Philippines in the present
time had mature. Philippines had a sense of nationalism. Through the changing constitution up to the present laws, shows that
the Filipino people is building a just and humane society.

Historical as perspective as a whole is considered as historical school of jurisprudence that arise from oblutiacs of the
people that developed with the drive of their cultural identity either by creating, improving or discarding concepts and rules.
Historical perspective of the nature of the law is also valuable to legislative, since from there they can draw the volkgeist. It is
viewed as Savigny as the approach to the problematic issues of legal ordering avoids uncertainty and accident in the
development and application of law. If we would read thoroughly to the law today, with or without modifications some
historical doctrine of the nature of the law as the life and spirit of the people is valuable and practicable in the legal ordering
society. (Pascual, 1972)

Building on the past, excelling in the present, providing for the future

Sources:

Carr, E. H. (1917) What is history

Constantino, R., Constantino L., (June 1993), The Philippines: A past revisited
Mcilwain, C. H. (1973), The Historians Part in a changing World, American Historical Review, Vol 42, No. 2, pp 207-224, Oxford University

Pascual, Crisolito, LL. M. (1972) Introduction to Legal Philosoph, Quezon City: UP Law Center

THE BANGSAMORO AGREEMENT

It is the agreement between the government of the Philippines and the Moro Islamic Liberation Front(MILF) that
will establish a new autonomous region to be called Bangsamoro, which will replace the Autonomous Region of
Muslim Mindanao(ARMM) in hope of defeating poverty, social injustice and corruption in the said region.
It traces its roots to the Memorandum of Agreement on Ancestral Domain during the previous administration.
However, the Supreme Court declared the memorandum to be unconstitutional because it runs contrary to and in
excess of legal authority.
According to the framework agreement, Bangsamoro shall have a ministerial form of government.
The agreement was signed on October 15, 2012 in Malacaan Palace.
The historical event was witnessed by President Benigno Aquino III, the Malaysian Prime Minister and other
dignitaries.
Under the agreement, Bangsamoro shall have authority in Shariah courts which will decide on personal and
non-criminal cases between Muslims.
Moreover, as an autonomous region, it shall be given the power to have its own sources of revenues and impose
its own taxes and fees provided that both parties agree on it. This power shall include the power to determine tax
bases and tax rates, guided by the principles of devolution of power, equity, accountability, administrative simplicity,
harmonization, economic efficiency, and fiscal autonomy.
Also, Bangsamoro possesses the authority to receive grants from both domestic and foreign sources.
However, despite being autonomous, Bangsamoro shall always be under the supervision of the President. The national
government retains powers on:
a. Defense and external security
b. Foreign policy
c. Common market and global trade, provided that the power to enter into economic agreements already allowed
under Republic Act No. 9054 shall be transferred to the Bangsamoro
d. Coinage and monetary policy
e. Citizenship and naturalization
f. Postal service
Under this agreement, the Bangsamoro Islamic Armed Forces will undergo a gradual process of decommissioning.
In addition to basic rights, Bangsamoro inhabitants also have the following rights, among others, binding to the
legislature, executive and judiciary:
o right to life;
o right to freedom and expression of religion and beliefs;
o right to privacy;

o right to establish cultural and religious associations; and

o right to redress grievances and due process of law.

BACKGROUND MATERIAL
1. The Tripoli Agreement
Signed on December 23, 1976, in Tripoli, Libya, the agreement was between representatives of the Government of
the Philippines and the representatives of the Moro National Liberation Front.
2. Final Peace Agreement with the MNLF
Signed on September 2, 1996, in Manila, Philippines the agreement effectively ended the Moro National Liberation
Front rebellion against the Philippine government.
3. Memorandum of Agreement Ancestral Domain, Bangsamoro Juridical Entity
Initially signed on July 27, 2008, it was scheduled to be formally signed on August 5, 2008. However, it was
stopped by the Supreme Court on August 4, 2008 by virtue of a temporary retraining order. On October 14, 2008, The
Supreme Court declared it to be unconstitutional as it is contrary to law and the Constitution.
SCOPE OF TERRITORY
Below is the proposed of territory of Bangsamoro. It is composed of:the present geographical area of ARMM, many
municipalities like Baloi, Munai and Nunungan, Pantar, Tagoloan and Tangkal in Lanao del Norte along with the cities of
Cotabato and Isabela and and such other areas wanting to be included, provided that these areas undergo a certain process.
The Framework Agreement states: The core territory of the Bangsamoro shall be composed of: (a) the present geographical
area of the ARMM;
(b) the Municipalities of Baloi, Munai, Nunugan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other
barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit, and Midsayap that voted for inclusion in the
ARMM during the 2001 plebiscite;
(c) the cities of Cotabato and Isabela; and
(d) all other contiguous areas where there is a resolution of the local government unit or a petition of at least ten percent
(10%) of the qualified voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of
the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro.
**How is this different from the MOA-AD?
First, this framework agreement does not commit the government to constitutional change.

 Second, the agreement has been done in full transparency, as noted by its publication online prior to its signing.
Third, there is no mention of ancestral domain in the document.
Fourth, while the MOA-AD [2008] was written in such a way that the government could have acted without a plebiscite.
This Framework Agreement [2012] is very clear in requiring a democratic mandate. First, the organic law, to be written by the
Transition Committee, must be passed by Congress. Then the communities involved must approve it by plebiscite. Assuming
the law is passed and the plebiscite is approved, then the MILF must seek an elected mandate from the people.
**Do we need to Revise the Constitution?
The framework agreement does not commit any of the parties to work for charter change. The major political commitments
that were made in the Framework Agreement can be achieved within the flexibilities of the existing constitution. Nevertheless,
Article 17 of the Constitution allows any citizen to recommend ideas to amend the constitution through proper legal processes.
**How do you have a parliamentary government under a presidential government?
There is nothing in the Constitution which prohibits an autonomous area from having a ministerial form of government. The
Constitution also states that whatever government is in the autonomous region, it shall always be under the supervision of the
President.

SOCRATES
Socrates (470-399) was the son of a sculptor and a midwife, and served with distinction in the Athenian army during Athens
clash with Sparta. He married, but had a tendency to fall in love with handsome young men, in particular a young soldier
named Alcibiades. He was, by all accounts, short and stout, not given to good grooming, and a lover of wine and
conversation. His famous student, Plato, called him the wisest, and justest, and best of all men whom I have ever known
founded philosophy

Plato was his student

Agreed with the Sophists that knowledge of reality is uncertain.

But moral knowledge is possible: "Virtue is knowledge," and there is virtue.

Moral knowledge is universal (moral absolutism).
Universal principles open to reason are those moral concepts in which all particular ideas agree.

The Socratic method is dialectical and inductive: universals are derived from particulars by noting differences in
identities and identities in differences
He said that he did not teach, but rather served, like his mother. He made use of questions and answers to remind his
students of knowledge is called maieutics (midwifery), dialectics, or the Socratic method.
Socrates' Philosophy
Socrates asserted that an individual must know himself in order to be wise.
A life that has not been examined is not worth living.
Euthyphro (dialogue by Plato) -Socrates suggests that what is to be considered a good act is not good because gods say it is,
but is good because it is useful to us in our efforts to be better and happier people. This means that ethics is no longer a
matter of surveying the gods or scripture for what is good or bad, but rather thinking about life. He even placed individual
conscience above the law
Apology: The Examined Life
Because of his political associations with an earlier regime, the Athenian democracy put Socrates on trial, charging him with undermining
state religion and corrupting young people. The speech he offered in his own defense, as reported in Plato's (Apology),
provides us with many reminders of the central features of Socrates's approach to philosophy and its relation to practical life.

Ironic Modesty:
Explaining his mission as a philosopher, Socrates reports an oracular message telling him that "No one is wiser than
you." In each case, however, Socrates concludes that he has a kind of wisdom that each of them lacks: namely, an open
awareness of his own ignorance.
Questioning Habit:
The goal of Socratic interrogation, then, is to help individuals to achieve genuine self-knowledge, even if it often turns
out to be negative in character.
Devotion to Truth:

Even after he has been convicted by the jury, Socrates declines to abandon his pursuit of the truth in all matters.
Refusing to accept exile from Athens or a commitment to silence as his penalty, he maintains that public discussion of
the great issues of life and virtue is a necessary part of any valuable human life. "The unexamined life is not worth
living."
Dispassionate Reason:
Even when the jury has sentenced him to death, Socrates calmly delivers his final public words, a speculation about
what the future holds. Disclaiming any certainty about the fate of a human being after death, he nevertheless expresses
a continued confidence in the power of reason, which he has exhibited (while the jury has not). Who really wins will
remain unclear.
Socrates' argument proceeds from the statement of a perfectly general moral principle to its application in his particular case:
One ought never to do wrong (even in response to the evil committed by another).
But it is always wrong to disobey the state.
Hence, one ought never to disobey the state
First, the state is to us as a parent is to a child, and since it is always wrong for a child to disobey a parent, it follows that it is
always wrong to disobey the state.
The second argument is that it is always wrong to break an agreement, and since continuing to live voluntarily in a state
constitutes an agreement to obey it, it is wrong to disobey that state.

Socrates himself never wrote any of his ideas down, but rather engaged his students -- wealthy young men of Athens -- in endless
conversations. In exchange for his teaching, they in turn made sure that he was taken care of.

Plato reconstructed these discussions in a great set of writings known as the Dialogs.

PLATO

PLATO Father of Idealism in Philosophy

The Name 'Plato':
Plato was originally named Aristocles, but one of his teachers gave him the familiar name, either because of the breadth of his
shoulders or his speech.
Plato was born around May 21 in 428 or 427 B.C.

Plato was a student and follower of Socrates until 399, when the condemned Socrates died after drinking the prescribed cup
of hemlock. It is through Plato that we are most familiar with Socrates' philosophy because he wrote dialogues in which his
teacher took part, usually asking leading questions -- the Socratic method.
When he was about twenty, he came under Socrates spell and decided to devote himself to philosophy. Devastated by
Socrates death, he wandered around Greece and the Mediterranean and was taken by pirates. His friends raised money to
ransom him from slavery, but when he was released without it, they bought him a small property called Academus to start a
school -- the Academy, founded in 386
Plato emphasized two planes:
1. ideal (noumena)
2. real (phenomena)
NOUMENA and PHENOMENA
A term used by Plato to distinguish one side of the divided plane. On one side is the noumena where all is spirit.
On the other side is the phenomena where all is material
That which cannot be detected by the five senses)

innate knowledge
learning is recalling what was known perfectly in the noumena before birth
greatly influenced Western philosophy
With Democritus, Plato starts from Protagoras's perception theory of knowledge.
Reason and insight discover in perceptual phenomena the universals, i.e., the Ideas, or intelligible forms of reality
(rationalism and intuitionism).

Knowledge develops through three stages, corresponding to the relative development of the three levels of the soul:
1. doxa (opinion or mere belief deriving directly from senses)
2. dianoia (rational or discursive understanding)
3. noesis (direct intuition of the Ideas)

Knowledge has as its object what really is, i.e., being, essence (ousia), the Ideas or the Forms; and virtue.

"Virtue is to be gained only through right knowledge and knowledge is cognition of true Being."

Plato added the agent or creator (God) who forms the world according to the Ideas.
THE STATE (by Plato)
The state exists in order to serve the wants of men. Men are not independent of one another, but need the aid and
cooperation of others in the production of the necessaries of life. Hence, they gather associates and helpers into one dwelling
place and give this joint dwelling the name city. The original end of the city is an economic end and this follows the principle
of the division and specialization of labour.
The agricultural labourer will not produce his own plough or mattock, but they will be produced for him by others, by those
who specialize in the production of such instruments. (State will require weavers, shoemakers, carpenters, smiths, shepherds,
etc.)
If there is to be a luxurious city, something more will be required and musicians, poets, tutors, nurses, barbers, cooks, etc. will

make their appearance

DIVISION AND SPECIALIZATION OF LABOR (by Plato)
If war is to be pursued, then on the principle of the division and specialization of labour, there will have to be a special class of
guardians of the state who will devote themselves to the conduct of war.
GUARDIANS must be spirited, gifted with element but they must also be philosophic in the sense of knowing who the true
enemies of the state are.
3 Great classes of State:
1. Superior class of Guardians
2. Auxiliaries or military class
3. Inferior class of Artisans
Who are to be rulers of the State?
They will be from the class of Guardians They are not to be young; they must be the best men of their class, intelligent,
powerful and careful of the state, loving the state and regarding the states interest as identical with his own. Those who then
from childhood up have been observed to do that which is best for the state and to have never deserted this line of conduct.
AUXILIARIES occupy more honourable position than Artisans. They should possess no private property of their own, but
should receive all necessaries from their fellow citizens
They should live together like soldiers in camp: gold and silver they should neither handle nor touch
ARTISANS - who wants nothing more than to be provided with a set of rules and regulations by which he can live and work
REPUBLIC BOOK: Women are to be trained as men - in the ideal State, they will not simply stay at home and mind the
baby but they will be trained in music and gymnastics and military discipline just like men.
Eugenic Principle: Plato thinks marriage relations of citizens, particularly of the higher classes of the state should be under
the control of the state.
Marriages between Guardians and Auxiliaries are to be very strictly arranged.
Best possible offspring should be brought up in a State nursery.
Democratic Principle: Plato thinks that the ruler must govern in virtue of knowledge and that the knowledge must be
knowledge of the truth.
The Philosopher King:
Instead of following a political path, Plato thought it more important to educate would-be statesmen. For this reason, he set up
a school for future leaders. His school was called the Academy, named for the park in which it was located.
PLATO: The Ship, Ship Captain and its crew
In which we are ask to imagine a ship and its Captain who is taller and stronger than anyone in the ship. But he is a
little deaf and is short-sighted, and his knowledge of navigation is not much better. The Crew mutiny takes charge of the
ship and drinking and feasting they continue their voyage with success as might be expected of them. They have no
idea of the pilots art or what a true pilot should be. [Platos objection to democracy of the Athenian type The

politicians really do not know their business, when the fancy takes the people they get rid of the politicians in the office
and carry on as though no special knowledge is required for the right guidance of the ship of State.] The man who has
real knowledge of the course should take it because it can help it to weather the storms and difficulties. Thus, Those
who are to be chosen as rulers should be educated.
REPUBLIC:
Plato said that the perfect state is the aristocratic State; but when the 2 higher classes combine to divide the property of other
citizens and reduce them practically to slavery, aristocracy turns to timocracy.
Love of wealth grows timocracy turns to Oligarchy, political power coming to depend on property qualifications.
SOCRATIC METHOD

Issue a clear statement of the problem to be solved.

Two or more competing proposals are generated.

 Members identify the explicit or implicit assumptions that underlie each proposal.
The team then breaks into advocacy sub, who examine and argue the relative merits of their positions.
The group reassembles and makes a decision:
embrace one of the alternatives
forge a compromise
generate a new proposal
This process helps the members to better understand the proposals along with their pros and cons. The main disadvantage is
the tendency to forge a compromise in order to avoid choosing sides

Aristotle (b. 384 d. 322 BCE),

Aristotle was a Greek philosopher, logician, and scientist. Along with his teacher Plato, Aristotle is generally regarded as
one of the most influential ancient thinkers in a number of philosophical fields, including political theory. Aristotle was born in
Stagira in northern Greece, and his father was a court physician to the king of Macedon. As a young man he studied in Plato's
Academy in Athens. After Plato's death he left Athens to conduct philosophical and biological research in Asia Minor and
Lesbos, and he was then invited by King Philip II of Macedon to tutor his young son, Alexander the Great. Soon after Alexander
succeeded his father, consolidated the conquest of the Greek city-states, and launched the invasion of the Persian Empire.
Aristotle returned as a resident alien to Athens, and was a close friend of Antipater, the Macedonian viceroy. At this time (335
323 BCE) he wrote, or at least worked on, some of his major treatises, including the Politics. When Alexander died suddenly,
Aristotle had to flee from Athens because of his Macedonian connections, and he died soon after.

Aristotle's life seems to have influenced his political thought in various ways: his interest in biology seems to be
expressed in the naturalism of his politics; his interest in comparative politics and his sympathies for democracy as well as
monarchy may have been encouraged by his travels and experience of diverse political systems; he criticizes harshly, while
borrowing extensively, from Plato's Republic, Statesman, and Laws; and his own Politics is intended to guide rulers and
statesmen, reflecting the high political circles in which he moved.

Aristotle
is
often
said
to
be
the
father
of
natural
law. Like
his
philosophical
forefathers Socrates and Plato, Aristotle posited the existence of natural justice or natural right. His association with natural
law is largely due to the way in which he was interpreted by Thomas Aquinas. This was based on Aquinas' conflation of natural
law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics. Aquinas's influence was such as
to affect a number of early translations of these passages, though more recent translations render them more literally.

Aristotle's theory of justice is bound up in his idea of the golden mean. Indeed his treatment of what he calls "political
justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every
other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking
what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general
justice and particular justice. When a person's actions are completely virtuous in all matters in relation to others, Aristotle
calls her "just" in the sense of "general justice;" as such this idea of justice is more or less coextensive with virtue. "Particular"
or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others

equitably.

Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means
something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from
nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law
theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his
remarks as to nature are about the grounding of the morality enacted as law, not the laws themselves. The passage here is
silent as to that question.

The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes
that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to
nature. The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to
appeal to such a law, especially when the "particular" law of ones' own city was adverse to the case being made, not that
there actually was such a law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law
suggested in this passage to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

Aristotles Views on Law

By: Jeffrey Thayne

In Plato, we saw a tension between two different accounts of law: one as an imperfect, man-made set of rules
established for the purpose of peaceful coexistence, and the other as a divine order encoded into human law by an individual
with privileged access to the divine world. Aristotle recognized this distinction, and attempted resolve the tensions.

Aristotle felt it was important to ground law into a divine, natural order of some kind. This cosmic order is what gives law
its binding authority. He, like Plato, also believed that a central function of law was to compensate for the imperfect and
random judgment of men. He drew from an example presented by Platos Socrates (in Platos more dubious second point of
view). People have passions and behave randomly, but reason can corral those otherwise random impulses together and
direct them towards a higher and more noble purpose. In the same way, law can be the voice of reason to a population of
random and various purposes, and can channel them towards nobler ends.

According to Aristotle, legislators may discover basic principles and abstract ideas, but the business of making laws
is a practical activity, and the legislator has to attend to the contingent human world. The activity of legislating is not
concerned with disclosing the unchanging truth, but rather with interpreting it for particular circumstances. Thus, while the
abstract ideas may be universal, the laws that a legislator makes may be different according to different contexts, because a
legislator interprets the abstract principles and applies them to each circumstance. Thus,
The twofold character of law is described by Aristotle as if there were two sorts of law, which he calls particular and
universal. Particular law is that which each community laws doesn and applies to its own members; universal law is the
law of nature. Because everyone to some extent divines this law of nature, we can know what it really is, Aristotle says.

That everyone can divine the natural law follows from the definition of man, common to Plato and Aristotle, as a compound
of reason and passion or of spirit and matter, or as a rational animal. This understanding of human nature implies that the
rational or spiritual element of man is a participation in the ruling principle of the universe, and that the universe is a cosmos
ordered by a rational and divine principle, of which mans reason is a fragment. Aristotle makes it clear that men can claim to
have knowledge of an unchanging natural law because they share in the divine reason that rules the universe, and this
belief postulates a universe that incorporates within itself its divine ruling principle. In short, the idea of natural law rests on
assuming that God is neither beyond and outside his creations nor incomprehensible, but is rather immanent in human
reason.

So, while there are universal, abstract ideas which we can intuit, not all law is a direct encoding of this overarching
order. There is also a need for practical wisdom in applying these laws to particular circumstances. For example, Aristotle said,
of political justice, part is natural, part legal; natural, that which everywhere has the same force and does not exist by
peoples thinking this or that; legal, that which is originally indifferent, but when it has been laid down is not indifferent.

This belief in a rational order may seem to imply that men have a moral duty, by conscience, to obey well-executed
laws, and also that laws that are not rooted in this rational order may be properly disobeyed. This is because if the authority of
law comes from its relationship with the rational order, when there is no relationship with the rational order, there is no
authority. In matters where legal justice can be required to conform to natural justice, the divine element in men that
gives each person natural knowledge of this higher justice would seem to give every person the right to refuse to observe
an unjust law. However, Aristotle unequivocally denies both that legislating is merely a matter of enacting a pattern
discovered in the sky and that every man has a right to disobey a law when he finds that it conflicts with natural law. Thus,

Aristotle did not believe that just anybody could rebel against a law when he did not see its connection with the divine order.

So, there is a rational order that is known to people, self-evident in a sense through reason, but the actual laws that a
legislator enacts may vary from place to place, according to various circumstances and the needs of the people. These laws
may not be a direct logical deduction from universal principle, but nonetheless are implemented as law by people and are still
to be obeyed.

The Polis

Aristotle was also concerned with the questions, What is a polis? and, What does it mean to be a citizen of a polis?
Consider the implications of this question. Plato defined a polis as an association created by law: it is a collective body of
people who are governed by a common set of rules. According to Aristotle, however, a simple agreement to a set of rules,
however, is not enough to make a polis. For example, my friends and I agree to abide by a set of rules when we play Risk, but
we are not a polis for doing so. Or, two nations may make treaties and agreements with each other, but their association can
hardly be called a new polis. A business may collect participants towards a common goal, but this association is not
a polis either.

Aristotle believed, like Plato, that a polis is, indeed, characterized by a subscription to a common set of rules. What
makes the association a polis, in contrast with a mere treaty, or a game, or a business is the goal or purpose the association
and its rules are working towards. Aristotle did not believe (as Plato did) that the rules that govern the polis could be entirely
non-instrumental. That is, they cant be conventions designed merely to allow people to simply get along with each other. Why
is this? Well, as we mentioned before, two nations may make agreements that allow them to get along, but mutually
consenting to a set of rules is hardly enough to make the subsequent association a polis. The laws that govern a polis must
have an end that is unique to that association. Just as rules of a family have a purpose that is suited to the purposes of the
family, and the rules of a military must serve the purposes of the military, the laws of a polismust serve purpose of the polis.

Aristotle said, any polis which is truly so called, and is not merely one in name, must devote itself to the end of
encouraging goodness. Otherwise, a political association sinks into a mere alliance, which only differs in space [i.e. in the
contiguity of its members] from other forms of alliance where the members live at a distance from each other. The end and
purpose of a polis is the good life, and the institutions of social life are means to that end.

In other words, Aristotle believed in an instrumental view of law, and saw thepolis as a universitas-type of association
united under the common goal of achieving the good life. A set of non-instrumental rules that dont direct the populace
towards a common end would make the polis no different than a mere alliance among its participants.

However, a subscription to common rules designed to achieve the good life is not sufficient to make a polis either. Those

that subscribe to this common set of rules must be common from various backgrounds. Youve got to have bakers, artisans,
soldiers, fathers, brothers, merchants, etc. What makes a polis a polis is that the association transcends and subsumes just
about every other kind of association. Almost all other associations are a part of the polis. Thus, contained within the
universitas of the polis is the societas of everyday society.

What does it mean to be a citizen of a polis? This too is a more interesting question than it appears. Consider; we
require non-citizen residents to abide by the same rules we do while they live here, but they are not citizens. There are many
examples of people who we require to follow the law, but we do not consider them citizens of the polis. Thus, although
a polis is a collective subscription to a common set of rules designed to achieve the good life, being a citizen of a polis is more
than just adhering to those rules and living within the boundaries of the polis. To be a citizen, Aristotle concludes, is to
participate in the lawmaking of the polis in some way. For example, in the United States, we are a citizen when we can vote.

Political Systems

We should also take a brief moment and look at Aristotles view of political systems. He believed that there are three
different kinds of proper government: kingship, aristocracy, and polity. All three of these can look after the common interest;
kingship is when one person rules, aristocracy is when the best rule, and polity is when the masses rule, but only to the extent
that they look after the common interest.
Forms of Government
Proper

Counterfeit

Kingship

Tyranny

Aristocracy

Oligarchy

Polity

Democracy

Each of these forms of government has a counterfeit. Aristotle explains,

Three perversions correspond to them. Tyranny is the perversion of Kingship; Oligarchy of Aristocracy; and Democracy of
Polity. Tyranny is a government by a single person directed to the interest of that person; Oligarchy is directed to the interest
of the well-to-do; Democracy is directed to the interest of the poorer classes.

Unresolved Conflict

Plato presented two different points of view; one was the beginning of social contract theory, as championed by Thomas
Hobbes. Law is a human agreement, Hobbes, designed to help us get along, that we are obligated to obey because of mutual
agreement, or social contract.

The other view Plato presented is a rendition of natural law theory, and described law as a divine order in the sky that is
articulated by the philosopher-king. Marcus Cicero developed this idea, but borrowed from Aristotle the belief that everybody
has an innate knowledge of the divine law. He argued that all laws that differ from this universally known divine law are not
even real laws, but only the instruments of men in rebellion against divine law.
Aristotle tried to reconcile the two worldviews by pointing out the distinction between theoretical and practical reason;
people can encode an abstract divine law into human instruments applied to unique circumstances. Thomas Aquinas further
developed this distinction in his philosophy of law, and he showed different ways in which the divine order can be applied to
particular circumstances. Thus, Cicero, Aquinas, and Hobbes each developed various parts of the philosophies presented by
both Plato and Aristotle.

By a law of nature, then, Aristotle does not mean statutes, or a system of rules, discernible by intellectual perception;
rather, what he means are recurring equalities or inequalities in the nature of things, which, he considers, serve to justify
general claims involving the distribution of things and actions. Three important things should be noted about a law of nature
in this sense:

First, Aristotle thinks that a law of nature may appropriately be invoked as grounds for disobeying a human law which
contravenes it, since the law of nature has the higher authority. This is clear from his favorable reference to the Antigone of
Sophocles and his willingness to contemplate jury nullification in the Rhetoric. It is unclear from the text on what grounds
Aristotle held that a law of nature has the higher authority; but we may speculate that his view here is connected with his
views expressed elsewhere that the ultimate causes of nature are divine, and that human artifice should assist or complete
nature rather than subvert it.

Second, it may reasonably be wondered why, if something is a law of nature, it is not recognized and followed

universally by human beings. In fact no prescription seems to be acknowledged by all cultures and times, not even Do not
murder. The puzzling language of the Nicomachean Ethics, which defines nature as something that has the same force or
influence in all times and places, suggests how Aristotle would deal with this problem.

Third, it seems to be Aristotles view that a law of nature or what is just by nature never has an effect on our actions
without some admixture of the conventional and the arbitrary. No precept is purely natural; all precepts are framed with a
view to an application to particular circumstances, and for this something arbitrary will be required. Aristotles helpful example
is of the difference between wholesale and retail measures: in all times and places, people use larger measures in wholesale
markets than in retail; they do this in view of the nature of the casethe wholesale market involves a higher-level distribution
of goods for sale, and therefore it calls for larger measuresand in this sense by nature wholesale measures are larger than
retail; nonetheless, which measures to use at each level is purely a matter of convention: e.g. kilograms rather than pounds,
and grams rather than ounces.

In general, the definition of natural found in the Nicomachean Ethics, V.7 shows the wrongness of a common view
about Aristotle and natural law: It is often claimed that Aristotle could have had no notion of a natural law, because he was
still philosophizing in a context, evident in the Sophistic Movement, in which nature (phusis) and law (nomos) were
contrasted and held to be incompatible. Only with the supposition of a God who is both a lawgiver and the governor of nature
a supposition which became common after the rise of Christianitydid it make sense to conceive of a natural law (or so
the objection goes). But the passage from the Rhetoric, I.13 shows that Aristotle had no difficulty conceiving of a natural law
or using language along those lines, and we have explained what he meant by this and how it was open to him to think in this
way. What is additionally interesting about the discussion of what is natural is that it shows Aristotle arguing that, far from
being incompatible, the natural and the conventional are almost indistinguishably intertwined in human practical reasoning
and law; in fact, this is a distinguishing characteristic for Aristotle of distinctively human as compared with divine justice.

Today natural law theories are sometimes taken to be distinctive insofar as they attempt to provide for and justify the
claims that (i) human law in certain circumstances is null and void (lex iniusta non est lex) and also that (ii) there are actions
which, because of the kind of action that they are, are never to be done whatever the consequences (so-called moral
absolutes or actions per se malum). The two aspects are related: the way in which a precept most commonly gets dispensed
with is by being overruled; thus a precept of the highest authority about a sufficiently plain matter of equality or inequality,
one would think, would lack exceptions.

Aristotle seems to be disposed to recognize moral absolutes corresponding to laws of nature: for instance, given his
sympathies with Antigone, one would think he would regard bury ones blood relation as that sort of absolute prescription, to
be followed except when it is impossible to do so. Also, it is interesting to note that Grotius, influential on the Founders in their
understanding of Aristotle, similarly interpreted a passage in Aristotles Ethics:

the Law of Nature is so unalterable, that God himself cannot change it. For tho the Power of God be infinite, yet we
may say, that there are some Things to which this infinite Power does not extend, because they cannot be
expressed by Propositions that contain any Sense, but manifestly imply a Contradiction. Things are no sooner
mentioned than we discover Depravity in them. For as the Being and Essence of Things after they exist, depend not
upon any other, so neither do the Properties which necessarily follow that Being and Essence. Now such is the Evil
of some Actions, compared with a Nature guided by right Reason. Therefore God suffers himself to be judged of
according to this Rule.

Aristotle did affirm the existence of a law of nature, but he was admired by and influenced the American Founders
more for his related views on republican government and the rule of law.

Some of the Foundersnotably, John Adams and James Wilsonrefer frequently to Aristotle and show a deep
acquaintance with his Politics. Moreover, Aristotle generally enjoyed an authority among the Founders like that which he had
exercised over the learned world for centuries beforehand.

Aristotle was regularly included by the Founders in their lists of reliable and authoritative political philosophers. John
Adams similarly wrote that the principles of the American Revolution are the principles of Aristotle and Plato, of Livy and
Cicero, and Sidney, Harrington, and Locke; the principles of nature and eternal reason; the principles on which the whole
government over us now stands.

Indeed, Aristotle was credited as the original source for many doctrines generally affirmed by the Founders, including
the following five:
government should govern for the good of the people, not for the good of those in power;
there is a natural aristocracy, and skilled statecraft arranges things so that this element acquires authority, or, failing

that, blends democratic and oligarchic influences in society to approximate to that outcome;
mixed regimes are better than pure regimes, because they are more stable;
the best form of government in nearly all circumstances involves the balancing of aspects of all three pure regimes
(kingship, aristocracy, and timocracy);
a pure democracy can easily turn into a tyranny of the majority.
However, the teaching of Aristotle that was most admired by the Founders was his insistence upon the rule of law,
especially as stated in a passage from the Politics, where law is said to be reason or intelligence (nous), free from passion,
and, as it were, the governance of God. Their imagination in this regard seems to have been captured by several passages
that indicate a conception of the institution of the rule of law as akin to the institution of the Kingdom of God.

By: Buenaventura, Jenny C.

C I C E R O (10643 B.C.)

Marcus Tullius Cicero was born on 3 January 106 BC. His family was from the town of Arpinum, about 70 miles southeast of Rome. The name Cicero means chickpea, and stemmed from an ancestor who had a wart at the end of his nose, which
looked like a chickpea.

Cicero studied literature, philosophy and law in Rome. His studies were interrupted by a spell of military service under
Gnaeus Pompeius Strabo during the Social War (He claims to have supported Sulla in the upheavals of the 80s without
actually taking up arms. In 80, Cicero appeared as the advocate defending Sextus Roscius of Ameria against a charge of
parricide. He defended Roscius by turning the accusation of murder back on one of Roscius' accusers, his relation Titus Roscius
Magnus, and another relation, Titus Roscius Capito. What caused a sensation was Cicero's claim that Chrysogonus, one of
Sulla's freedmen, had assisted in covering up the murder and, for his pains, had bought the lion's share of the dead man's
property at a rock bottom price a claim that could easily be seen, despite all Cicero's protestations to the contrary, as an
attack on Sulla himself. Sextus Roscius was acquitted and Cicero was famous.

Cicero had a philosophy that was similar to that of the Stoics.

He believed:

that true law was reason

that good is always good
that bad is always bad
in traditional Roman values

Cicero maintained high moral standards that could only be upheld with a great deal of determination and self-restraint.
He wanted these principles to remain being applied to the Roman Republic.

Cicero, prominent Roman statesman and consul, pre-eminent orator, lawyer, and master of Latin prose, and significant
moral and political philosopher, left a substantial written legacy. Within that legacy he gives extensive attention to the natural
and thus universal basis of justice and right. In fact, it might fairly be said that his treatment of the natural foundation of right

is his most important contribution to moral and political thought: it stands historically at a critical juncture where this idea
assumes clearly the language of natural law and comes to exercise a direct and formative influence on leading thinkers from
the first centuries of Christianity through the Renaissance.

Cicero looked back to the great Greek thinkers as one deeply conscious of his debt to them and yet aware of distinctive
Roman ways and the general Roman resistance to any dependence on the Greeks. As a very public man in his actions as well
as his writings he had to walk a careful line between his wanting to share his convictions of the primacy of the thinking of
Socrates, Plato, and Aristotle and the requisite manifestations of his genuine Roman patriotism. He considered Plato as the
first among all philosophers, Aristotle second. It seems that he directly engaged a number of Aristotles texts, but he also
knew Aristotelian thinking through the representatives in his day of the Peripatetic school of philosophy which Aristotle had
founded. Centuries later Dante would look back on Cicero as Romes best Aristotelian.

Cicero wrote several works namely:

The Phillipics
On Duties
On the Republic
On the Nature of gods
On the Orator
On Old Age

In On the Republic, Ciceros Scipio indicates that deep thinking helps one see a common law of nature that provides a
higher standard than the civil law, a law of nature that gives both privileges or rights, and responsibilities or duties to the truly
wise. Not too much later in the dialogue the idea that there is a law of nature beyond the will of the stronger, of the dominant
class, or of public opinion comes under attack. Cicero assigns this Academic task to a character named Philus. The second
passage in the Documents (Republic 3.1819) provides an indication of the kind of argument Philus makes, which emphasizes
both the variation in laws from nation to nation and time to time, and that even well-known philosophers seem to differ from
common practice in interpreting a standard of justice like giving every person their due. Philus represents a set of arguments
heard yet today against the idea of a natural justice and natural law, namely, that variations in just civil laws and customs
and differing opinions even among leading thinkers constitute an indication that there exists no natural, common
understanding of the right and the just.

In the same book he wrote that the concepts true law and right reason indicate that not every law is indeed a law,
and not every reason, even if pronounced by a philosopher, would be a sound reason. Given what is said about upright
men contrasted with wicked men, it is clear that one must be disposed in a certain way to heed the true law, and yet in
cases of individual wicked men and even where customs and civil laws are generally at variance from right reason, seeds of
this true law remain in all, never to be entirely obliterated.

Fundamental law that is to be directive of human beings comes from a choosing or selection of the highest reason
implanted in nature (1.1819); the human mind grasps that fundamental law and derives from it the rules of right and wrong.
Thus the effective natural law for humans is the mind and reason of the prudent man (1.19). In reaching into nature and
learning from her, the wise person shares in a divine force or the very mind of god. Here is an important instance where Cicero
shows himself apparently sharing a Stoic understanding of the divine dimension of the law of nature pervading the whole
universe.

A statement Cicero makes in On the Laws points to the enrichment of his thinking on natural law in On Duties, the final
philosophical work in his richly productive life. Not only right and wrong are distinguished by nature, writes Cicero, but also
in general all honorable and disgraceful things. For nature makes common understandings for us and starts forming them in
our minds so that honorable things are based on virtue, disgraceful things on vices (1.44).

In Book One of On Duties, there is an explanation of the basic human inclinations that give rise, with reasons guidance,
to the foundational (later to be called cardinal) virtues of wisdom, justice, courage/magnanimity and
temperance/moderation. Finding these virtues is the way to finding natures way for humans, to finding the law of nature and
thereby what is right.

Cicero has made a monumental contribution to the tradition of natural law and natural rights in the West. While revering
and learning from his great Greek predecessors in the tradition of moral and political philosophy as well as from the schools of
philosophy in his own time, he brings forward in a more explicit way the language of natural law, thus developing the notion of
following nature or of what is right according to nature. He points quite unambiguously to a divine source for this law and
anticipates later developments of the notion of conscience by stressing that all humankind have a sense of the right within
them, seeds needing nourishing and guidance to flourish as mature reason. This maturing entails reason being brought to
work upon the gift of our inclinations and thus to formulate the virtues and the very law of nature. This law then is to be the
standard shaping the commonalities in the laws of nations and against which one can judge the rightness of any specific civil
laws and the edicts and rulings of magistrates. Since humans are by nature communal and political beings, he is emphatic in
stressing that a natural justice means that one must never do harm and must always serve the common good. Cicero in this
text and throughout his writings shows his awareness of the complexity entailed in understanding what true harm and the
true common good are.

Ciceros impact, both direct and indirect, on important post-Renaissance thinkers such as Locke, Hume, and
Montesquieu was substantial, and through such writers, and often directly, his thought and very phrases reached to Americas
founding generations. Thomas Jefferson explicitly names Cicero as one of a handful of major figures who contributed to a
tradition of public right that informed his draft of the Declaration of Independence and shaped American understandings of
the common sense basis for the right of revolution.

Ciceros On Duties, highly regarded and influential throughout much of Western history, was regularly present in the
libraries of early America. John Adams and James Wilson were notable in the founding period for recalling Cicero and his
teaching on the principles of nature and eternal reason. Wilson had contributed in important ways to the success of the
Constitutional Convention of 1787 and the subsequent ratification of the Constitution. His important lectures on law in 1790
91, which saw President Washington, Vice President Adams, and Secretary of State Jefferson in attendance at times, gave
prominent attention to Cicero on natural law.

By: Buenaventura, Jenny C.

LEGAL
PHILOSOPHY
THE ACQUINIAN CONCEPT OF JUSTICE AND LAW
BUENO, Christian Benedict
DE GUZMAN, IsabelleST. THOMAS AQUINAS (1224-1274)
Born and raised by a noble family from Naples.
disapproval.
Studied with St. Albert the Great in Paris and participated in the Aristotelian
revival of the Middle Ages.
Canonized and became saint in 1323.

aforementioned instances.
ULTIMATE REALITY
Aquinas was primarily a Christian theologian.
He viewed human wisdom as structural like a pyramid with the sciences of
ethics and politics as its base with philosophy above and theology at its apex.
Natural philosophy are not contradictory but complementary.
Faith and reason are valid in their own realms.

the biblical notion of creation and Christian salvation.

HUMAN NATURE, COMMON GOOD, AND
THE NECESSITY OF GOVERNMENT
Political condition is a natural condition of human beings as part of creation.
differentiated creatures. Consequently, it is the entire universe which shares perfectly

 equality of
creatures which is inherent to all human beings.
Human beings are partners with God and politics is necessary even if
there was no fall from the Garden of Eden.
Politics is right of governance.
Reason is the basis of law. Non-human animals have specific natural
defenses (like claws), whereas humans rely on reason for survival. Need for guidance from delegates. Human co-creation
requires human
cooperation and cannot be done by single individuals with their limited
talents.
Need to interact. The power of speech show that solitary existence is
inappropriate; speech and language provide the means for interpersonal
projects.
On humanization and the need to be governed
Humans must achieve humanization and eternal salvation and this entails a
principle of government within society.
Humanization presupposes the principle of government. Essential part of
humanity is to be governed.
If it is natural for human beings to live in society, then it follows that there must be
regulation of society. For no human group can long endure if each person sought only
his individual ends. One of them would have to provide for the common interest, just as
an organism would break apart unless it had some controlling power in it which worked
for the good of all bodily parts.
Humans require political rule for survival.
Government is for general welfare. Humans should be put under rule of those
providing for the common good and interest.
The king or government exist to prevent chaos.
Original sin leaves humans wounded, fallible, and frail though not vitiated or
corrupted.
Presence of political institutions leads to enjoyment of God. Political
institutions foster knowledge, culture, and virtue and permit humans to pursue
their ultimate end, which is the enjoyment of God.Church and State
Separation of Church and State. Aquinas views the church as caring for souls
but believes church and state are ultimately complementary.
Political authority is derived from God.
Natural reason and divine law. The best rulers follow both natural reason and
divine law of love and mercy.
A magnanimous/leader must be willing to do great things on behalf of mutuallydependent people as well as the glorification
of God.
In order to merit honor and glory, a leader must harmonize faith and reason.
The Leader

 Leader for social whole. Ordering of society implies a directing authority.

By nature, others are born leaders and others followers. This indicates our need
for a government.
What a leader must not do? There are three ways by which a leader becomes
irrational:
Desire more than what is needed. A person can desire more than his fair
share of honor.
Forget faith. A person can neglect God in his quest for honor.
Selfishness. A person can seek honor without concern for others.
Rulers should be prudent. Rulers should nnot be despotic or arrogant but
should be prudent.
Aquinas distinguishes between cleverness (astusia) and moral prudence
(prudencia). According to Thomas Gilby, moral prudence is:
o ...a good habit of settled quality, of the practical reason giving an active bent
toward right doing as an individual act; it ranges from our pondering over what
should be done through our judgment of what we should choose to do, and is
completed in that being an effective command.
Due process. A prudent ruler knows how to give justice and must:
a) Investigate alternative courses of conduct together with the means for
accomplishing a moral end.
b) Know how to make practical judgments about possible courses of
action.
c) Possess good memory to draw from the storehouse of past experience.
d) Possess circumspection, which involves close attention to the attendant
circumstances of a political decision.
e) Consult and seek advice from others with a strong reputation for
practical wisdom and service in the public interest.
f) Be prospective and aspective. Possess foresight ro reasonably project
into the future the consequences of a given line of action.
Not individualistic. Tyranny should be avoided by the appropriate
selection of kings and construction of institutions.
Balance between instinct and ration. A ruler must temper his bodily or
sexual powers with his or her rational faculties.
Not overpowering. The good ruler rarely overpowers his subjects but
channel their activities for the common good.
TYPES OF LAWS
Political rulership must be governed by law and the ruler should keep the laws
he makes for others.
Acquinas describes the essence of law:
True and genuine law is reasonable. The reason for construction is away
from absurdity. Eternal Law. Divine reason and wisdom comprise an eternal law-a law

governing the whole creation. It is not made but eternally existing and therefore
unknowable to humans entirely, yet the source of all true law on earth.
Natural Law.
provide humans with objective, changeless, universal rules or general principles
of action for ethical and political life.
Human Law. True law that is derived from natural law. A rule of state that is at
odds with natural law is no law at all.
Divine Law. The revealed truths such as ten commandments and the Sermon
on the Mounts that supplement and corrects human fallibility and frailty.
RULERSHIP AND NATURAL LAW

Synderesis is the natural capability of practical reason to discern the natural

law and thereby, do good and avoid evil.
A ruler needs broad experience and understanding of the political, economic,
and social context of his society to establish just punishments.
General Precepts of Synderesis
a) Self-Defense. Human well being is such that humans tend toward selfpreservation. Our tendencies to protect ourselves
require protections of national
security or housing, which are general precepts of law.
b) Reproduction. Humans are inclined to propagate the species, so family life
must be protected.
c) Education. Humans are rational beings who naturally desire or tend to obtain
knowledge.
d) Employment. Humans are naturally inclined to be socially or communally
dependent. We should live in societies based on the division of labor as a
general precept of law.
e) Family. Caring and protecting for children forms the natural law general precept
of monogamy.Five Criteria of Just and Reasonable Law
1. It must be promulgated by a legitimate ruler for common good. Lawmaking
must be transparent.
2. It must not exceed the authorized power of lawgiver in a particular society.
3. It must lay only reasonable burdens on subjects according to the equality of
proportion (such as graduated income tax based on ability to pay).
4. It must be consistent with the principles of subsidiarity: the lowest unit of
society that is capable of accomplishing a needed social function in an
adequate manner should be permitted to perform that function (from the
family, to local community, up to the centralized state). This preserves the
vitality of the family, private groups, and local communities as well as the
state.
5. It must not oppose to eternal law.

 Monarchy is the best regime for Aquinas though he is willing to consider other
regimes as well since no particular form of government is ordained by God.
Rulers must protect the spiritual equality of humans.
Man is bound to obey God and not man in spiritual affairs.
Politics cannot produce perfect justice, perfect peace, or perfect salvation.
Natural Law and Justice from Summa Theologica
I answer that, Laws framed by man are either just or unjust. If they be just, they have the
power of binding in conscience, from the eternal law whence they are derived, according to
Prov. 8:15 By Me kings reign, and lawgivers decree just things. Now laws are said to be just,
both from the end, when, to wit, they are ordained to the common good and from their
author, that is to say, when the law that is made does not exceed the power of the lawgiver
and from their form, when, to wit, burdens are laid on the subjects, according to an
equality of proportion and with a view to the common good.

Francisco

Grossman

What is Legal Positivism?

A school of Jurisprudence whose advocates believe that
the only legitimate sources of law are those written
rules, regulations and principles that have been expressly
enacted, adopted, or recognized by a governmental
entity or political institutions, including administrative,
executive, legislative, and judicial body.
In the perspective of the positivist jurisprudence, legal
rules can be sound or silly, good or bad, so long as their
sillyness or badness is general in scope. Simply put
any violation of the command issued by the supreme
poltical superior is an infraction and subject to sanction.
(dura lex sed lex The law [is] harsh, but [it is] the law)
Seed of Legal Positivism
John Austin used the method of comparative analysis. Pref-erably called as
Positivist Jurisprudence which emphasiz-es the perception that the law is
consciously created by the state.
There are 2 Positivist Approaches:
Law not necessarily a moral concept
Norms of moral and natural laws are inherent in the concept of the nature of
the law is emphatically criticized.
According to John Austin- law is not necessarily inter-ested or anxious for the
norms of morality, that the rela-tion of law and morality is only incidental,
not direct.
Uncluttered by Metaphysical Speculation
Legal positivist do not hide their disillusionment with
the use of the natural law theory in the legal ordering
of the society.
JOHN AUSTIN
He is considered by many to be the creator of the school of analyt-ical
jurisprudence, as well as, more specifically, the approach to law known as
legal positivism. Austins particular command theory of law has been
subject to pervasive criticism, but its simplicity gives it an evocative power
that continues to attract adherents.
He is influenced by Jeremy Bentham, who formulated the princi-ple of
utility, which approves of an action in so far as an action has an overall
tendency to promote the greatest amount of happiness. To work out the
overall tendency of an action, Bentham sketched a felicific ("happinessmaking") calculus, which takes into account the intensity, duration,
likelihood, extent, etc of pleasures and pains.
Bentham advances the view that there should be a separation between
law and morality, and that law should be about maximiz-ing utility, or

personal pleasure or pain, and the effect or wisdom of a particular policy

could be calculated by adding together all the pleasure and subtracting all
the pain it brought everyone. The greatest happiness of the greatest number
often referred to as the principle of utility.
Austins concept of positivism introduced us to the separation of moral
criteria or natural law and the positive law. He included a prescription that
moral values should not be use in judicial decision making.
3 Basic points of Austins Theory of law
The law is a command issued by the uncommanded commander
the sovereign.
Every positive law or every law simply and strictly so called, is set by a
sovereign person, or a sovereign body of persons, to a member or members
of the independent political society wherein that person or body is sovereign
or supreme. Or (changing the phrase) it is set by a monarch, or sovereign
member, to a person or persons in a state of subjection to its author.
Such commands are backed by threats of sanctions.
A command is a signification of desire. But a command is distinguished from
other significations of desire by this peculiarity: that the party to whom it is
directed is liable to evil from the other, in case he com-plies not with the
desire. The evil which will probably be incurred in case a command be
disobeyed or in case a duty be broken, is fre-quently called a sanction.
A sovereign is one who is habitually obeyed.
A sovereign is defined as a person or determined body of persons who
receives habitual obedience from the bulk of the population, but who does
not habitually obey any other persons or institution. Austin thought that all
independent political societies, by their nature, have a sovereign.
THOMAS HOBBES
-Like Austin, Hobbes is also recognized as the jurisprudent who developed
the concept of law in terms of legal positivism
Hobbes is a legal positivist about legal knowledge
-in order for a person to determine the content of the law of a commu-nity,
that person need not engage in moral evaluation of that content, or of
anything else.
-the only way that the sovereign will avoid miserable condition of war is to
establish standards of conduct that are identifiable by citizens without
reference to their own notions of good or right
Hobbess Positivist Perspective:
Law in general, is not counsel, but command.
Command, is where a man said, do this, or do not this, without expecting
other reason than the will of him that says it. Hobbes definition of civil
law: to every subject, those rules, which the common-wealth hath
commanded him, by word, writing, or other sufficient sign of the will, to
make use of, for the distinction of right, and wrong; that is to say, of what is

contrary, and what is not contrary to the rule. When Hobbes argues that all
civil law is positive, he means that all civil law is imposed by the sovereign.
2.) Law is simply a matter of what the sovereign of a given
community has commanded of its subjects.
And identifying the content of the sovereigns commands need not involve
morally evaluating that content, or evaluating anything else, just as
identifying the content of any other speech act, such as a request or
declaration, does not require moral evaluation by those to whom it is
addressed in order to be understood.
Since a command is a sign of the will of the sovereign, identify-ing the
content of a given command is tantamount to discerning the sovereigns will,
whatever it may be.
3.) There are no moral restrictions on what the sovereign may
command.
The limits of what the law might be are determined simply by whatever the
sovereign could intelligibly command. Common law is the Kings law,
whosoever pens it. The fact that a sovereign tolerates a custom or common
law judgment means that the sovereign has authorized it.
The standard positivist/natural law oppositions are:
positiv Vs.
moralit
e law
y
state
church
profane
transcende
ntal
command
counsel
threats
internalize
d
obligation
Will
Reason
The Law and The State
Hobbes and Austins view
-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.
-No right can be claimed against the state which it has not previ-ously
accepted.
Kelsens view
-the personification of the state is avoided by considering the state and the
law as one for the reason that within one nation and not two compelling
orders can be valid at the same time.
The Supreme Political Superior
The state as the collective legal association under the rule of ma-jority is the
supreme political superior. ( doctrine of non- suability of the state)
When the exercise of delegated to the government is a deliberate and
persistent disregard of the will of the supreme political superi-or, then such
adverse governmental challenge can be blunted, curbed or even denied by

the response for the majority of the members of the society.

Two responses can be made: peaceable type and uprooting type
( revolutionary response)
Distinction between Positive Law and Natural or Moral Law
Positive Law is a body of man-made laws consisting of codes, regu-lations,
and statutes enacted or imposed within a political entity such as a state or
nation
Natural or Moral Laws are those which cannot be enforced by court action
but which are binding on the party who makes them, in conscience and
according to equity and natural justice. It is an ethical beliefs supposed to be
inherent in human nature and dis-coverable by reason rather than revelation.
Different Views of the Philosophers
Dela Vega, Rolan
Flores, Claudette Trixia
Ladrera, Khris
The Positivist Perspective
Austin. Hobbes. Kelsen
From The Leviathan (Hobbes's book which was controver-sial and also
challenged the very basis of philosophical and political knowledge)
Social Contract Theory of Law: Positive Law in a theory of
jurisprudence focusing on man-made laws. Law is established by
governmental authority, especially that which has been codified into a
written form (statutory law) -- Those in power make and enforce the laws,
separate and apart from strict moral/ethical considerations.
To rule by words, requires that such words be manifestly made
known; for else they are no laws: for to the nature of laws belong a
sufficient, and clear promulgation, such as may take way the excuse of
ignorance; which in the laws of the men is but of one only kind, and that is,
proclamation, or promulgation by the voice of man.
Hobbes Austin Concept
Hobbes laws are the rules of just and un just, nothing being reputed unjust
that is contrary to some law. And sovereign is not subject to the laws for
having the power to make and repeal laws, he may when he pleases himself
from their subjection.
no man can say is unjust
Austin- it is absurd that positive law is void if it is not in accord-ance with
the natural law. His aversion to the philosophy of the natural law is based on
the view that the ought is really non-existent.
HANS KELSEN
He is considered one of the preeminent jurists of the 20th century and has

been highly influential among scholars of juris-prudence and public law,

especially in Europe and Latin Ameri-ca although less so in common-law
countries.
Kelsens Pure Positive Theory
-law as binding norms while at the same time refusing, itself, to evaluate
those norms.
-Main issue: lack as sense of moral responsibility
-Answer to which is, there is nothing immoral or amoral that is legal.
-Pure Positive Theory con-siders only human norms, not norm coming from
other superhuman sources. (natural perspective)
HobbesKelsen
Austin
-Nature of the
-Pure Positive
law as the will of Law
the sovereign /
-Juristic view,
supreme
psychological
political supericom-pulsion is
or
not a specific
-Psychological
element of pure
view,
positive law
compliance with Some norms
all of the state
carry out those
depends on the compulsion but
feeling of awe
not legal norms
and fear
-Subjective
influence of
human behavior

Elijah A. Manlod
Jowan Gonzales

Functional Perspective:
Also called functionalism,
is one of the major theoretical perspectives in sociology. It has its
origins in the works of Emile Durkheim, who was especially interested in how
social order is possible or how society remains relatively stable.

Much of Durkheim's work was concerned with how societies could maintain
their integrity and coherence in modernity; an era in which traditional social and
religious ties are no longer assumed, and in which new social institutions have come
into being. His first major sociological work was The Division of Labor in
Society (1893). In 1895, he published his Rules of the Sociological Method and set
up the first European department of sociology, becoming France's first professor of
sociology
Durkheim was also deeply preoccupied with the acceptance of sociology as a
legitimate science.

Functionalism interprets each part of society in terms of how it contributes to

the stability of the whole society.
Society is more than the sum of its parts; rather, each part of society is
functional for the stability of the whole society. The different parts are
primarily the institutions of society, each of which is organized to fill different
needs and each of which has particular consequences for the form and shape
of society. The parts all depend on each other.
It emphasizes the consensus and order that exist in society, focusing on
social stability and shared public values.
Relationship of the law with various phenomena such as institutions of
society, observable behaviour and functions of human groups, social trends,
power structures, organizations with bureaucratic make-up

From this perspective, disorganization in the system, such as deviant

behaviour, leads to change because societal components must adjust to
achieve stability. When one part of the system is not working or is
dysfunctional, it affects all other parts and creates social problems, which
leads to social change.
Functionalists believe that society is held together by social consensus, or
cohesion, in which members of the society agree upon, and work together to
achieve, what is best for society as a whole. Emile Durkheim suggested that
social consensus takes one of two forms:
1. Mechanical solidarity is a form of social cohesion that arises when people
in a society maintain similar values and beliefs and engage in similar types
of work. Mechanical solidarity most commonly occurs in traditional, simple
societies such as those in which everyone herds cattle or farms. Amish
society exemplifies mechanical solidarity.

2. In contrast, organic solidarity is a form of social cohesion that arises when

the people in a society are interdependent, but hold to varying values and
beliefs and engage in varying types of work. Organic solidarity most
commonly occurs in industrialized, complex societies such those in large
American cities like New York in the 2000s.
Example:
The government, or state, provides education for the children of the
family, which in turn pays taxes on which the state depends to keep itself
running. The family is dependent upon the school to help children grow up to
have good jobs so that they can raise and support their own families. In the
process, the children become law-abiding, taxpaying citizens, who in turn
support the state. If all goes well, the parts of society produce order,
stability, and productivity. If all does not go well, the parts of society then
must adapt to recapture a new order, stability, and productivity.
Society is compared to a human body writ large, with interacting parts all
working toward a common goal of keeping the organism functioning
properly. Social behaviour is the basis of the social function that the
behaviour serves.
Relevance of social diversity on the law
Sociological label:
Positivist school, modern realist school, policy science school, social
utilitarian school
These schools have different vies concerning the nature of law.
Charles Louis de Montesquieu:
-

Discoursed on the development of law in the social environment in

which it grows, including the morality, manner, politics, and customs of
the people. He stresses the reaction of law to changing social
conditions.

Ludvig Gumplowicz:
-

The application of law is not in the best interest of the society.

Roscoe:
-

the individual needs the force of social control to keep the two sides of

his nature in balance

Robert Hutchins:
Comment on the interaction of the interests and purposes of the
different individuals and groups in the community he stated that:
functional approach is an effort to follow the law in action, to find out
the consequences of legal decisions on the social interest
Legal order must proceed on the basis of an impartial consideration of
the claims, demands and expectations of the different groups in the
community.
Legal order must also be along the lines of the interests of the society

Explanation:
-

An assertive individual, a person has a tendency to ignore the claims,

demands of others in the satisfaction of her or his own wants. But as a
rational individual, a person understands the need to cooperate with
the claims, demands and expectations of others in order to realize the
interests that are held in common. A contemporary society is organized
along lines which make it difficult for an individual to attend to his her
needs alone. By extension it is also hard for a groups of individuals to
exist independently of each other groups. No group or individuals is
self-sufficient or self-contained as to be able to disregard others. The
relationships existing between individuals interests, public interests,
and social interests are so vital that social interdependence through
similar or nearly similar claims, demands and expectations is well
accepted.

Core of Functional Jurisprudence:

Problem of nature of the law
1. The enormous amount of human wants, demands and expectations
2. Limited means at the disposal of the state in satisfying them
3. Aggressive tendencies of individuals and group of individuals in the
assertion of their wants or in the acquisition of some vantage positions for
them
4. Long drawn nature of the resulting conflicts of interests
5. The inability of the legal order to fully recognize and satisfy the conflicting
or overlapping interests at the same time.

* in view of these facts legal order is called upon

The concept of law:
-

It is an abstract of a framework of what we usually do.

Law is a set or rules and regulations

that guides our conduct in the society and is enforceable through public
agencies. It also enforced for regulating certain behaviour and activities.

Laws are guidelines that set out appropriate behaviour that has been
developed over time,
and are based on moral beliefs, a human condition that sets out a purpose
that society in general is called upon or required to fulfil. Without the
fulfilment of these desired tasks, man simply will become equal to animals
or worse still, allow their darker sides (or impulses) to emerge and control
their lives. Thus, law acts as a guardian against the inevitable anarchy that
would engulf humanity Misconducts:
Crimes, felonies, misdemeanours, infraction, civil law suits (disagreements of
the people)
Crimes misconduct considered to be harmful that the society employs
public officers to try to prevent the misconduct and to punish those who
engages in it.
Functions of law:
(1)Defending us from evil
The first and most basic function of law is to defend us from evil that is,
those who would seek to harm us for no good reason. This function of law
underlies 20th century developments in International Law such as
the Nuremberg Trial sand the creation of the International Criminal Court.
(2) Promoting the common good
Law is not just concerned with bringing evil people to account for their
actions. A community made up of people who bear no ill-will to anyone else
and are simply concerned to pursue their own self-interest needs law

because there are situations where if everyone pursues their own selfinterest, everyone will be worse off than they would have been if they acted
differently. (This is the reverse of the invisible hand phenomenon where if
everyone pursues their own self-interest, everyone in the community is made
better off, as if everyones actions were guided by an invisible hand to
achieve that end.) So a community of self-interested actors needs law: (i) to
solve Prisoners dilemma situations; (ii) to distribute into private hands
property that would otherwise be exploited by everyone, thereby avoiding
a tragedy of the commons situation arising; (iii) to prevent people acting on
their natural desire to extract an eye for an eye in revenge for actual or
perceived wrongs that they have suffered at other peoples hands.
(3) Resolving disputes over limited resources
As every family knows, in any community there will always be disputes over
who should have what of a limited number of resources. Law is needed to
resolve these disputes, as exemplified by the famous story of the Judgment
of Solomon.
(4) Encouraging people to do the right thing
It was thought even from classical times that law performed a fourth function
that of encouraging and helping people to do the right thing. For
example, Aristotle (384 BC 322 BC) argued that people needed the
discipline of law to habituate them into doing the right thing, from which
standpoint they could then appreciate why doing the right thing was the
right thing to do. Up until the 20th century, this view of law was accepted by
law makers, with the result that the UK legal system contained a large
number of morals laws that is, laws that were designed purely and simply
to stop people acting immorally, according to the lights of Christian
teaching on what counted as immoral behaviour. However, in the 20th
century, the harm principle propounded by John Stuart Mill in his book On
Liberty, according to which the law should not sanction people for acting
immorally unless their conduct involved some harm to others, gained more
and more popularity, and resulted in the abolition of large numbers of
morals laws. These trends triggered what is now known as the Hart-Devlin
debate over the extent to which it is legitimate for the law to enforce
morality. Lord Devlin at the time, a judge in the House of Lords, the highest
court in the land argued that law should enforce morality so as to preserve
the cohesiveness of society. Professor H.L.A. Hart at the time, the most
famous legal philosopher in the world based his position squarely on Mills

harm principle, though subject to the caveats that the law might legitimately
prevent someone acting immorally if doing so involved harm to himself or
would cause offence to others. Harts views are set out in his widely read
book Law, Liberty and Morality. Hart is thought to have won the debate
but his concessions that it might be legitimate to make it illegal for someone
to engage in immoral behaviour that will (i) harm himself or (ii) offend
others, seem to make little sense.
Law can become an instrument of evil, a means by which a countrys
rulers can rob people of their property and oppress minorities.
It is also argued that even if law is not actually used as an instrument of evil,
it can become its accomplice by doing such things as:
(i) hamstringing public officials (such as the fictional Jack Bauer of the
American TV series 24) from doing what is necessary to prevent terrorist
atrocities; and
(ii) granting people rights and encouraging them to exercise them, thereby
fostering a damaging culture of complaint and compensation culture that
alienates people from each other, and discourages people from helping other
people for fear that doing so might result in their being sued.
Guides to legal order: (Jural Postulates of the civilization of the ff:)
1. time and place
2. social interests
3. national policies
Functional concept of law:
Social control:
-

solution, adjustment or if no better 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.

Adjustment of conflicting or overlapping interest two factors:

1. Preventing or minimizing further conflicts
2. Balancing or compromising conflicting interests to guarantee social
equilibrium
Interest cannot always be compromised, the state enters the judgement of

the justice
Ex. The power of the state for eminent domain wherein a private property
must be sacrificed also there must be a just compensation.

The point of public policy is to tame social interest

According to Justice Oliver Wendell Holmes:
The true grounds of decisions are consideration of policy and social
advantage, and it is vain to suppose that solutions can be attained merely by
logic and the general propositions of law which nobody disputes
According to Holmes, Cardozo, and Laurel:
A politically organized society must have a jurisprudence of social
interest and national policies to guide legal ordering of society.
Roscoe Pound believes that:
-

The law cannot be dissociated from pragmatic ethics, that is to say

social interests as the highest good.
- Social interests ad national policies abide in the common
consciousness of what is naturally and inherently just and right
between man and man giving regard to the primary principles of equity
and justice
This shows not only what the law does but also what it can do for the
society.
Types of interest:
Individual interest
(a claim, demand or expectation involved in or looked at from the
standpoint of individual life.
interest of personality
Ex: freedom of expression, privacy, right to reputation
1.2 domestic interest

Ex: marriage and family relations

1.3 interest of substance
Ex: economic situations: property rights, freedom of industry, freedom
of contract
2. Social Interest
(concern of everybody for it is, as it were, the community conscience)

Individual and public interests are subject to or tested by the social interest
and national policies
Social Interest and National Policies are part of keeping public order.
Social Interest and National Policies:
Social interest: in the General Security
Social interest: in the maintenance and protection of social institution
Social interest: in the general morals
Social interest Social group:
1. Domestic institutions
2. Religious Institution
3. Political Institution
4. Economic Institution
Social Interest: in the Conservation of Human Resources
Social Interest: in the Conservation of Natural Resources
Social Interest: in the General Health
Social Interest: in Human personality and Dignity
Social Interest in the General Process
1. Cultural progress
2. Moral progress

3. Economic progress
4. Political progress
Roscoe Pound jural postulates of civilized society as follows:
First, men must be able to assume that others will commit no intentional
aggression upon them.
Second, men must be able to assume that they may control for beneficial
purposes what they have discovered and appropriated for their own
use, what they have created by their own labor, and what they have
acquired under the existing social and economic orders.
Third, men must be able to assume that those with whom they deal in the
general intercourse of society will act in good faith:
a. will make good reasonable expectations which their promises or
other conduct reasonably create
b. will carry out their undertakings according to the expectations
which the moral sentiment of the community attaches thereto,
c. will restore specifically or by equivalent what comes to them by
mistake or unanticipated or not fully intended situations whereby they
receive at anothers expense what they could not reasonably have expected
to receive in the circumstances
Fourth, men must be able to assume that those who are engaged in some
course of conduct will act due care not to cast unreasonable risk of
injury to others.
Fifth, men must be able to assume that others who maintain things likely to
get out of hand or to escape and do damage will restrain them or keep
them within their proper bounds.
Sixth, everyone is entitled to assume that burdens incident to life in
society will be borne by society.
Seventh, everyone is entitled to assume that at least a standard human
life will be assured him, not merely equal opportunities of providing or
attaining it but immediate material satisfaction.
Eight, every person is entitled to assume that he or she may perceive and
feel the pleasures evoked by the beauty of nature, fine and

performing arts, belles letters, and music.

These are the underlying Jural postulates that has emerged for the
survival of human life in society.
Essential Factor in the legal ordering of the society:
-

Social interests and national policies if harmonized they together set

the tone and direction of the legal order.

Conclusion
All legal systems do harm of one kind or another. Some of that harm is
intended: in order to achieve its goals, a legal system always has to limit
peoples freedom. Some of that harm is an unintended side effect of the
legal systems attempting to achieve its goals: for example, harms (i) and
(ii), above. What is important is: (1) that our legal system do more good than
harm; and (2) that our legal system not do any unnecessary harm. I dont
have any doubt that (1) is true of our legal system; at the same time, I dont
have any doubt that (2) is not true. So the verdict on our legal system must
be Good, but could be better. How our legal system could be improved is a
matter of debate.

Relevant cases to Functional Perspective:

Oposa vs. Factoran
It has been widely cited worldwide for its concept of intergenerational
responsibility, particularly in cases related to ecology and the environment.
Oposa vs. Factoran' s concept of "intergenerational responsibility" was
cited in acase in Bangladesh.
The United Nations Environmental Programme(UNEP) considers Oposa vs.
Factoran A landmark case in judicial thinking for environmental governance.
In the book Public Health Law and Ethics By Larry O. Gostin, Oposa vs.
Factoran is cited as a significant example of the justiciability of the right to
health.

In the book The Law of Energy for Sustainable Development by the IUCN
Academy of Environmental Law Research Studies, a study cites Oposa vs.
Factoran as basis for asserting that the right to breathe is part of the right
to life as an acknowledged human right
-

The approach of the Philippine Supreme Court to economic, social and

cultural rights
Social cohesion function leads to their perpetuation across
generations

Manila Prince Hotel vs GSIS

The concept of Filipino first Policy
The Filipino First Policy was first implemented by former President
Carlos P. Garcia during the 1950s. This policy heavily favors Filipino
businessmen over foreign investors.
In the present Constitution, the Filipino First Policy is found in the provisions
of Article 12, Section 12, which states:
Section 12. The State shall promote the preferential use of Filipino
labor, domestic materials and locally produced goods, and adopt measures
that help make them competitive.

LIGAN, JAIMEE RUTH

MARTIREZ, ALMA ALEXANDRA L.

LEGAL REALISM
I. DEFINITION
Legal realism is the theory that judges may decide cases by taking into
account factors
other than pre-existing law. Realism initiated a dialogue between law and
social science by staking a claim for the relevance of phenomena beyond
legal categories.
(Source: Legal Realism Explains Nothing, Anthony D'Amato, Northwestern
University School of Law)
II. BRIEF BACKGROUND:
A. AMERICAN LEGAL REALISM
American legal realism refers to an intellectual movement in the United States that
coalesced around a group of law professors and lawyers in the 1920s and 1930s,
including Karl Llewellyn, Jerome Frank, Felix Cohen, Herman Oliphant, Walter
Wheeler Cook, Underhill Moore, Hessel Yntema, and Max Radin. These writers
thought of themselves as taking a realistic look at how judges decide cases, at
what the courts do in fact, as Oliver Wendell Holmes, Jr. (a major intellectual
forebear) put it. These writers thought of themselves as taking a realistic look at
how judges decide cases, at what the courts do in fact, as Oliver Wendell
Holmes, Jr. (a major intellectual forebear) put it. What judges really do, according to
the realists, is decide cases according to how the facts of the cases strike them,
and not because legal rules require particular results; judges are largely fact responsive rather than rule - responsive in reaching decisions.
How a judge responds to the facts of a particular case is determined by various
psychological and sociological factors, both conscious and unconscious. The final
decision, then, is the product not so much of law (which generally permits more
than one outcome to be justifi ed) but of these various psychosocial factors,
ranging from the political ideology to the institutional role to the personality of the
judge. Thus, the legacy of realism in both the practice and teaching of law consists
of phenomena like these: lawyers now recognize that judges are infl uenced by
more than legal rules; judges and lawyers openly consider the policy or political
implications of legal rules and decisions; law texts now routinely consider the
economic, political, and historical context of judicial decisions. In this sense, it is
often said that we are all realists now.

(Source: American Legal Realism, Briean Leiter, p. 249

http://www.drmyrawilliamson.com/lectures/a-companion-to-philosophy-of-law-andlegal-theory.pdf)
B. MODERN LEGAL REALISM
The term modern legal realism has been used to describe the experimental
outlook of this school of jurisprudence on the traditional assumptions on the nature
of the legal order.
C.

LEGAL REALISM AS A DISTINCT JURISTIC SCHOOL

Edgar Bodenheimer (1908-1991) views the legal realists as the radical wing of the
functional school of jurisprudence because their concept of the nature of the Law.
Julius Stone is similarly minded. He feels that the realist perspective is but a gloss
on the functional philosophy of law. For Stone and Bodenheimer, legal realism
considers the same factors that functional jurisprudence deals with in the study of
the nature of the Law.
Not quite. Unlike functional jurisprudents, the legal realists are more concerned with
the operation of the legal order in terms of the experiences and inter-experiences of
the people in the legal ordering of society. For this reason, legal realists are not
merely advocates of certain tendencies of the functional school of jurisprudence.
The legal realists have a philosophy of law quite apart from that of the functional
jurisprudents.
II. THE REALISTS THEORIES OF LAW
A. PREDICTION THEORY OF LAW

Prediction Theory is a theory expounded by Oliver Wendell Holmes in his

essay The Path of the Law. According to this theory, a society's legal system
is defined by predicting how the law will affect a person, as opposed to
considering the ethics or morals supposedly underlying the law. The
prediction is best made by viewing the law from the point of view of a bad
man who is unconcerned with morals. Such a person is not concerned with
acting morally or in accordance with a grand philosophical scheme. Rather,
that person is concerned with whether and to what degree certain acts will
incur punishment by the public force of the law.
This is also known as the bad-man theory or the predictive theory of law.
(Source: http://definitions.uslegal.com/p/prediction-theory/)
III. JUDICIAL LEGAL REALISM
The theory of law styled judicial legal realism is characterized by a healthy
skepticism for the traditional perspectives of law. Like the other aspects of the legal
realist school of jurisprudence, judicial legal realism doubts the positivist and
transcendentalist approaches to the problem of the nature of the law in terms of

what it is and what it ought to be. The positivist school of jurisprudence is criticized
for over-dependence on the role of rules in the legal ordering of society. The
teleological school of jurisprudence is faulted for its over-emphasis on the abstract
postulates of the natural law.
The judicial legal realists want a re-examination of the problem of the nature of the
law in terms of the relation of legal rules and legal facts to the realities of the
judicial process.
A. INTELECTUAL FORBEARS
1. Human law and Human Experiences
Justice holmes stated that the law is not a brooding omnipresence in the sky. By
this, Justice Holmes meant that the law is not a divine parent keeping watch over a
human child. In different words, human law is human and should not amount to
more than that. Therefore, for Justice Holmes, the law should address human
experiences past and present. Since law is for human beings and about human
experiences and inter-experiences, Justice Holmes, in exasperation, warned that
the law should not be considered as a system of reason, not a deduction from
ethical principles, corollaries and axioms, or what not.
2. Separation of Law from its Sources
According to Professor John Chipman Gray, a cut should be made between the law
itself and the sources of the law for it is absurd and nebulous to say that the law is
already present and existin in its sources. The point, according to Gray, is which
body can say with authority and finality what the law is. Thus, statures, rules and
regulations, like customs and usages, are no more than the sources of the law. On
this crucial point in legal philosophy, Professor Gray stated:
While the command that legislative acts must be
followed is precise and peremptory, the fact is that this
rule, its working, is almost as indefinite as those which are
imposed on the courts with reference to the other
sources, for, after all, it is only words that the legislature
utters, it is for the courts to say what those words mean,
that is, it is for them to interpret legislative acts.
Undoubtedly there are limits upon their power of
interpretation but these limits are almost as undefined as
those which govern them in their dealing with the other
sources.
And this is the reason why legislative acts, statutes, are to
be dealt with as sources of Law and not as part of the Law
itself, why they are to be coordinated with the other
sources which I have mentioned. It has been sometimes
said that the law is composed of two parts, legislative law
and judge-made law. The shape in which a statute is

imposed on the community as a guide for conduct is that

stature as interpreted by the courts. The courts put life
into the dead words of the statute.
B. ROLE OF MATERIAL FACTS
The concept of material facts does not refer to all past acts and events. A court may
disregard certain facts as irrelevant or immaterial. What is more, a judge may even
assume or include so-called facts which he finds necessary notwithstanding that
such facts may not even be part of the judicial record. Whether a judge considers
certain facts as irrelevant or assumes the existence of certain facts which may or
may not even be in the record of the case, the point is that the material facts are no
more or less than what the judge say they are. (p. 314-315)
C. ROLE OF EXPERIENCE AND SOCIAL ADVANTAGE
It has been pointed out that the law is not the exclusive product of logic. Indeed, the
law is no longer viewed to be a matter of simple deductive process. The reason for
this is that the law is not concluded or ended on the strength of a major premise
and a minor premise. Justice Holmes warned that logic has not been the life of the
law, for one can give any conclusion a logical form. The premises must first have to
be valid, that is to say based on social advantage before a correct conclusion can be
drawn. It has also been stated that general propositions are not sufficient to decide
conflicting interests. Not only are they ambiguous, lending themselves to either side
in almost any cause, but they are also obtuse as to be any use to mere human
beings.
The point is that there are human factors involved in the legal ordering of society.
These factors are unavoidable, especially in the hard cases. And it does not matter
much that sometimes judicial realism may assume a cynical shape. Justice Holmes
felt that his is excusable as long as considerations of social advantage are taken
into account.
D. ROLE OF METALEGAL STIMULI: REALIST VIEW
To the legal realists, the formalist concept of the adjudicative process is nothing but
mechanical jurisprudence. Justice Holmes, in particular, condemned this black
and white approach as simplistic and warned that in the adjudicative process
what the courts will do in fact I not achieved only by the interaction of the rules on
the facts. The law, explained Justice Holmes, is more rational and more civilized
when every rule it contains is referred articulately and definitely to an end which it
serves, and when the grounds for desiring that end are stated or are reay rto be
stated in words. Here Justice Holmes was positing the view that there are certain
metalegal stimuli at work in the adjudicative process. 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 good deal to do
than the syllogism in determining the rules by which men should be governed.Justice Holmes. (P. 324-325)

E. LAW AS A PRODUCTS OF THE JUDICIAL PROCESS

Legal realist view of the nature of the judicial process:
(Jr x mF) x (mlS x Jp) = L
The first quantity is a modification of the formalist concept of the judicial
process, with the qualification of the raw fact (rF) into material facts. The symbol
(jR) in the first quantity represents jural rules while the symbol (mF) represents
material facts as distinguished from raw facts. This is to say that not all rF go into
the adjudicative process. To be sure, only the mF does or should. And the material
facts are not only the mF nor necessarily the actual facts but include also the
circumstances relied upon or even assumed by the judge in reaching his or her
conclusion. A court lacks the authority to lay down a binding rule of law on facts
which are not before it. As such, facts become important in the determination of
the dispositive portion of the decision and the underlying principle of the case which
alone can be precedent in future cases.
In the second quantity, the symbol (mlS), which represents the metalegal
stimuli, in turn affects the other symbol (jP), which corresponds to the judicial
personality. (P. 354-355)
IV. JOHN DEWEY
John Dewey was born in Burlington, Vermont, on 20th October, 1859. After
university Dewey taught classics, algebra and science in a school
inPennsylvania before moving to a private school in Charlotte. Encouraged by his
mentor, H. A. Torrey, Dewey became a student of philosophy at Johns Hopkins
University. After completing his doctorate in 1884, Dewey found work as a teacher
in Michigan. In 1894 Dewey joined the staff of the University of Chicago as head of
its new department of philosophy, psychology and pedagogy. Dewy became
interested in social problems and was influenced by the ideas of the radical
writer, Henry George. He also became friends with those social reformers based
at Hull House such as Jane Addams, Mary White Ovington and Alice Hamilton.
Dewey became increasingly interested in the philosophy of education and in 1899
published School and Society. To test out his educational theories, Dewey and his
wife started an experimental school in Chicago. The school was closed after Dewey
became involved in a dispute with the university president, William Rainey
Harper. Dewey became influenced by the work of Karl Marx and other left-wing
philosophers. Steven Best has argued: "Philosopher Sidney Hook has gone so far as
to argue that Deweysim is the genuine fulfillment of Marxism. But the similarities
end abruptly on a key point: Marx insisting on the revolutionary overthrow of
capitalism, and Dewey embracing pragmatic reform and rejecting Marxism as
unscientific utopianism." In his books Dewey outlined his views on how education
could improve society. The founder of what became known as the progressive
education movement, Dewey argued that it was the job of education to encourage

individuals to develop their full potential as human beings. He was especially critical
of the rote learning of facts in schools and argued that children should learn by
experience. In this way students would not just gain knowledge but would also
develop skills, habits and attitudes necessary for them to solve a wide variety of
problems.

Dewey attempted to show the important links between education and

politics. Dewy believed that active learning would help people develop the
ability and motivation to think critically about the world around them.
Progressive education was therefore a vital part of a successful democracy
as it was necessary for people to be able to think for themselves. Dewey also
argued that the development of critical thought would also help protect
society from the dangers of dictatorship.
John Dewey died in 1st June, 1952.
(Source: http://www.spartacus.schoolnet.co.uk/USAdewey.htm)
V. SOCIAL LEGAL REALISM & JOHN DEWEY
It is on the philosophy of education of John Dewey that social legal realism is based.
Dewey held that knowledge is a part of life-experience involving the intercourse of
a living being with his physical and social environment. Stated differently, learning
becomes effective and adequate to the necessities of life only when it is
coordinated with experience. As Dewey puts it, learning by doing and
participation. This is an echo of David Humes idea that knowledge is derived from
experimental observation.
On this basis, John Dewey advanced the view that the life of the law is the social
experience. As Dewey explained it, the law cannot be understood apart from its
social environment but must profit from social experience in the development of
concepts, rules, and regulations.
Thus, John Deweys excursus into the study of the nature of law as a through and
through social phenomenon covers three distinct yet related issues, namely the
source of law, the end and purpose of law, and the application of law.
A. SOURCE OF LAW
John Dewey posited the view that the law is the product of the on-going human
activities and interactivities. Thus the phenomenon of human activities and
interactivities strikes down any notion about the source of law outside the structure
of society itself. For Dewey, the source of Law is the social experience of the people,
not some transcendental concept, since all that the people can appreciate well are
their own experiences. This has a subdued color of Savignys volksgeist for the idea
of social experience as the source of the law refers to the customs and usages of
the peole. These are the continuing human activities and human interactivities. To

put this in another way, a group of people recognizes and accepts the desirable
human activities (customs) enriched by the desirable human activities (usages).
B. END PURPOSE OF LAW
John Dewey made it clear that the law is a program of action to be tested in
action not something that can be judged on a purely intellectual basis the life
of the law is the social experience of the people and tested also by their social
experience. Human activities and interactivities are on-going and as such they are
not closed and completely ended social facts. The consequences of human
activities and interactivities provide the basis for the collective decision that they
are to be maintained either intact or changed. The end purpose of the law is the
deliberate achievement of social contentment.
And for John Dewey, social contentment is the satisfaction which comes when the
dominant active tendencies are made interests in the maintenance and propagation
of the things that make like worth living. Upon these conditions, the other
members of society can and should be happy since regard for the happiness of
others means regard for those conditions and objects which permits others freely to
exercise their own initiative, reflection and choice. The end purpose of the law,
thus, remains social in nature for it is found in the society of the individual members
that compose it as a whole.
C. APPLICATION OF LAW
Until law is set into operation in the field modifying and/or maintaining human
activities as going concerns there can be no law I the real sense, according to
Dewey. On the basis of this condition, the law becomes an instrument of social
control. Implicit in this concept is the use or threat of sanctions for the attainment of
the social ends. Thus, in postulating the social aspect of the application of the law.
Dewey said that what is called application is not something that happens after a
rule or stature is laid down but is a necessary part of them; such a necessary part
indeed that in given cases we can judge what the law is as a matter of fact only by
telling how it operated and what its effects are in and upon human activities that
are going on.
(Source: Introduction to Legal Philosophy, Crisolito Pascual, U.P. Law Complex)
VI. LEGAL REALISM AND OLIVER WENDELL HOLMES
Oliver Wendell Holmes is a noted American Chief Justice whose jurisprudence has
shaped the contours of American legal history. Holmes believes that a social view of
the law must be adapted - "the life of the law has not been logic, it has been
experience." There fore, experience must dictate jurisprudence, instead of deciding
through formalistic and black-letter laws. His approach also helped eradicate judicial
reasoning based on natural law or natural right. For Holmes, society and the law is
always in a state of change, and to navigate these changes, the courts must
adjudicate according to the practical effects of the law. Morality, therefore, should
not have anything to do with the law, but is rather a mere state of mind. There are
no absolute truths, only a view towards the practical outcomes. The way to

adjudicate would be to foresee the practical effects of a decision. The Constitution is

also not a sufficient basis to form a legal decision, and that there are no laws whose
meaning is stable through time. Holmes' approach is to decide on cases that are
before him and find reasons for them ex-post facto.

Holmes claimes that "the life of the law has not been logic; it has been experience."
Law then should not be the primary basis to decide cases, but rather in deciding
cases, all of human experience must be included to provide a context. Judges must
look into history and include science - particularly the science of economics - in their
jurisprudence. With the views of the judges' own particular class in history, judges
have the prerogative to decide cases fairly. The context and texture of the law must
also be dictated by these social and economic forces that prevail during that point
in history. This allows judges to decide according to the felt needs of the time.
Hence, Holmes's legal realism hinges on a pragmatism that is grounded in reality
with the hopes that the decisions that are decided on his docket will push the
progress of History as the courts examine contemporary questions and balance the
rights of those involved.

(Source: Oliver Wendell Holmes, Jr and The Natural Law.

http://www.nlnrac.org/critics/oliver-wendell-holmes)

VII. CRITIQUE OF LEGAL REALISM

A study of American Legal Realism would reveal that while its strengths hinge on
basing legal decisions to day-to-day subjective economic, societal, and historical
realities, the negation of relying on a legal system by which to interpret the realities
could easily hold decisions sway to judge's political and capricious whims. A
subjective approach in deciding cases can give the latitude by which to make moral
decisions that are not provided by law, or could potentially give latitude by which to
exploit the legal system by the judge's own political interests. The main issue by
which legal realism can be critiqued is the inherent subjectivity of the person
deciding the case, and this could lead to the societal progress that legal realism
envisions through pragmatic means, or a form that can be easily manipulated by

the whims of the majority if handled by the jury system, or the personal political
motivations of the judge. The autonomy of legal realism in interpreting the law in
the context of society in its pure pragmatic form holds the precise potential for
abuse. Hence the reporters argue that legal interpretation still needs to be
grounded on concepts of equity, justice, morality, and mercy for it to serve the
people's best interests. Jurisprudence as a means of societal progress should not
discount that while society advances, certain moral values must remain intact as a
foundation which grounds these decisions. After all, if the law only means to serve
as a deterrent for the bad man, then what does it seek to posit or uphold in society?
Legal realism mainly extols the values of the pragmatist view in using the law as
merely an instrument to advance societal progress, and what is expedient for a
society may also potentially lead to the contradictory line of reasoning that there
are no longer any societal values that the law should seek to protect. After all, if
morality and values are to be taken out of the equation, then what kind of societal
progress does legal realism envision? A more rational approach to the law and its
interpretation, without the grounding of morality and values, can easily miss wider
scale societal considerations of the issue at hand when making legal decisions,
which in theory, legal realism should seek to protect if it envisions to advance
societal progress.

American Legal Realism

The law", whatever that may be, is concerned with and is intrinsically
tied to the real-world outcomes of particular cases
Not concerned with what the law should, or "ought to" be, but that
legal realism simply seeks to describe what the law is
The "law" is what is commanded by a lawgiver, that judges are not
lawgivers, and that what judges do, while it might belong to the field of
law, is not "law" but legal practice.
Expressed a set of sometimes self-contradictory tendencies rather than
a clear body of tenets or a rigorous set of methodologies or
propositions about legal theory
Worked vigorously to depict the institution of law without denying or
distorting a picture of sharp moral, political, and social conflict
JOHN CHIPMAN GRAY
Biography
American scholar of property law and professor at Harvard law school.
He also founded the law firm Ropes and Gray, with law partner john
Codman ropes.
He was half-brother to U.S Supreme Court Justice Horace Gray.
Graduate of Boston Latin School. From there, he went on to Harvard

university, where he earned his Bachelor of Arts degree in 1859, and

Harvard Law School, where he earned his Law degree in 1861.
He was admitted to the bar in 1862, and thereafter served a tour in
the Union army in the American civil war
In 1865, after the end of the Civil War, Gray established his law
practice in Boston, which would eventually evolve into the modern firm
of Ropes and Gray. In 1869, he began teaching at Harvard Law School,
first as a lecturer, and became a full professor in 1875.
In 1883, he was named Royall Professor of Law, a position he would
hold for 20 years. He received honorary doctorate of laws degrees from
Yale University in 1894, and from Harvard in 1895.
Two years after retiring from teaching, he died at Boston,
Massachusetts on February 25, 1915.

Different Kinds of Persons

Normal human being - they have a will, can exercise right through
agents, etc
Abnormal human being-have no will
Supernatural being intelligent animals
Juristic ex corporation
Legal Rights and Duties
A man may be bound by a legal duty to do an act, although he cannot
possibly do it, and although he does not know that he has been
ordered to do it. The exercise of his will, actual or potential, is not
necessarily involved in the creation of a legal duty to which he is
subject.
Definition of the Law
- composed of the rules which the courts, that is, the judicial organs of
that body, lay down for the determination of legal rights and duties
The Courts
Courts or judges are used synonymously
Not necessary that a judge be called by that name; it is the functions
which he exercises, and not the name by which he is called, that mark
his essential character.
Judge of an organized body: man appointed to determine duties and
the corresponding rights upon the application of persons claiming
rights. It is the fact that such application must be made to him, which
distinguishes a judge from an administrative officer.
Law of Nations
A horde of savages who are in the habit of wandering about together,
without king or judge, may be composed of true organisms, families,

each with its ruler (alike legislator and judge) and Law. The horde is
made up of the family units, and not of the individual human beings
who make up the family.
The State
Chief artificial person in jurisprudence
entity whose organs are the men engaged in protecting a mass of
human beings from external and internal fraud and violence
Jurisprudence
Science of Law, the statement and systematic arrangement of the rules
followed by the courts and of the principles involved in those rules
Three kinds:
Particular Jurisprudence, or the science of the Law of a particular
community
Comparative Jurisprudence, or the comparison of the Law of two or more
communities
General Jurisprudence, or the comparison of all the legal systems of the
world
Sources of Law
1. Formal utterances of the legislative organs of the society - A
country with a written constitution, the body of persons which enacts
the constitution is the supreme legislature. All other bodies and
persons having legislative powers, including the ordinary Legislature,
Congress, Assembly, Cortes, are subordinate to it.
2. Precedents - rules by which the courts govern their action; covers
everything said or done which furnishes a rule for subsequent practice,
especially in matters of form or ceremony
3. Opinion of experts - sometimes these opinions have been taken up
by the legislative organ of a community and published as part of the
Statute Law
4. Custom - The courts have adopted certain rules because they found
them followed, in society at large, or in some parts of it, in the
intercourse of the members of the society with each other
5. Morality and Equity when a case cant be decided through any of
the above, the judge must ultimately come back to this.
Theories on the Nature of Law
LAW AS THE COMMAND OF THE SOVEREIGN - Every Positive Law,"
he says, "obtaining in any community, is a creature of the Sovereign or
State; having been established immediately by the monarch or
supreme body, as exercising legislative or judicial functions; or having
been established immediately by a subject individual or body, as
exercising rights or powers of direct or judicial legislation, which the

monarch or supreme body has expressly or tacitly conferred

LAW IN THE CONSCIOUSNESS OF THE PEOPLE - the courts, in
deciding cases, are, in truth, applying what has previously existed in
the common consciousness of the people
JUDGES AS DISCOVERERS OF THE LAW - rules followed by the
courts in deciding questions are not the expression of the State's
commands, nor are they the expression of the common consciousness
of the people, but, although what the judges rule is the Law, it is
putting the cart before the horse to say that the Law is what the judges
rule.
OLIVER WENDELL HOLMES
Biography
American jurist who served as an Associate Justice of the Supreme
Court of the United States from 1902 to 1932
Clear and Present Danger in Schenck vs. US
"The life of the law has not been logic; it has been experience.
espoused a form of moral skepticism and opposed the doctrine of
natural law
Great cases like hard cases make bad law. For great cases are called
great, not by reason of their importance in shaping the law of the
future, but because of some accident of immediate overwhelming
interest which appeals to the feelings and distorts the judgment.
Constitutions are intended to preserve practical and substantial rights,
not to maintain theories.
Now and then, an extraordinary case may turn up, but constitutional
law, like other mortal contrivances, has to take some chances, and in
the great majority of instances, no doubt, justice will be done.
A word is not a crystal, transparent and unchanging, it is the skin of a
living thought and may vary greatly in colour and content according to
the circumstances and time in which it is used.
The character of every act depends upon the circumstances in which it
is done.
That, at any rate, is the theory of our Constitution. It is an experiment,
as all life is an experiment.
Clear and Present Danger Rule: The question in every case is whether
the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree. When a nation is at war many things

that might be said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as men fight and that
no Court could regard them as protected by any constitutional right.
Courts are apt to err by sticking too closely to the words of a law where
those words import a policy that goes beyond them.
The interpretation of constitutional principles must not be too literal.
We must remember that the machinery of government would not work
if it were not allowed a little play in its joints.
The Common Law
Holmes Masterpiece
The Path of the Law
There is no basis in reason for deciding which of two contradictory legal
doctrines is correct
The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law
The Bad Man: If we take the view of our friend the bad man we shall
find that he does not care two straws about either the morality or the
logic of the law. For the bad man, legal duty signifies only a
prophecy that if he does certain things he will be subjected to
disagreeable consequences by way of imprisonment or compulsory
payment

Critical Legal Studies

Critical Legal Studies (CLS) is a theory that challenges and overturns
accepted norms and standards in legal theory and practice. Proponents of
this theory believe that logic and structure attributed to the law grow out of
the power relationships of the society. The law exists to support the interests
of the party or class that forms it and is merely a collection of beliefs and
prejudices that legitimize the injustices of society. The wealthy and the
powerful use the law as an instrument for oppression in order to maintain
their place in hierarchy. The basic idea of CLS is that the law is politics and it
is not neutral or value free. Many in the CLS movement want to overturn the
hierarchical structures of domination in the modern society and many of
them have focused on the law as a tool in achieving this goal. CLS is also a
membership organization that seeks to advance its own cause and that of its
members.
The critical legal scholars belonging to this movement consider their
jurisprudence as particularly close to the modern school of legal realism.
The only common denominator of the critical social realism of Karl
Marx and the critical legal realism of Roberto Mangaeira Unger is their
disenchantment with the elitist tendencies of the dominant liberal paradigm,
the concealed intentions and judgements behind legal concepts and ideas
which the dominant liberal paradigm has managed to include, directly or
indirectly, into the legal order, and the belief that the system of distribution
of the material and social goods is just and in the best interest of the people
and therefore, are inviolable.
For the Critical Legal Studies Movement, the task of good law school is twofold, namely, to provide legal education that frees the minds of professors
and students and to delegitimize the improper illicit tie between law and
politics.

For critical legal realism, the results of the erroneous tradition maintained by
the dominant liberal paradigm are:
a. the state has become the organization of the dominant liberal
class,
b. the law has become the rationalizing instrument of alienation
and oppression
The social structure has become so divided and hierarchied that status and
position therein determined by irrelevant inequalities.

The Critical Legal Studies movement insanely dislikes, can be summed up

into: 1) contemporary social order is a free society for there is individual
initiative to undertake any business or enterprise, and 2) the underlying
economic thrust of the contemporary social order in the control, production,
distribution, and exchange of goods and credit is based on free conditions.

Critical legal realists say that while the contemporary social order may be a
free society is not really just a society for it is characterized by widening
social divisions and sharpening economic hierarchies.

The reality pointed out by the critical legal realists is that it is

characterized by exploitative, individualistic, and possessive propensities
through the subtle use of power and resources to eliminate competitive
conditions and create monopolies and cartels.

Roscoe Pound saw the fallacy of contemporary social order. Pound was
referring to the mistake of the dominant liberal paradigm of structuring the

social order in the form of class struggle for existence in terms of economics
and operations of the different forces, including law.

Pound was also referring to the philosophy of legal positivism which is

determined by the will of the dominant social class on the basis of its own
interests.

The stinging analysis by critical legal realism is illustrated in Carino v.

Insular Government and in Lying v. Northwest Indian Cemetery Protective
Association.

In the Carino case, the plaintiff filed a petition seeking the inscription in
his name of some 146 hectares of land situated in the City of Baguio. Plaintiff
Carino inherited this big tract of land from his ancestors. The Government of
the Philippines then opposed the petition on the ground that the land, being
agricultural, was intended for public and military purpose of the Government
of the United States. The Supreme Court of the Philippines Islands
disregarded the petitioners evidence of immemorial occupation and use of
the land in question. The Court characterized the Igorot tribe, to which the
plaintiff and his ancestors belong, as uncivilized, thereby strongly implying
that the Igorots have no concept or idea of private property, let alone the
concept the ownership. Despite the material facts that the plaintiff and his
ancestors were, as far back as memory goes, in the possession of the land;
that they also held the land for more than fifty years prior to the Treaty of
Paris of April 11, 1899. The Supreme Court ruled that mere possession of the
land did not give the plaintiff title to it and that it cannot be conclusively
presumed that after a lapse of any number of years the Spanish Crown had
granted legal title to the plaintiff. On the basis of this ruling, the Supreme

Court Held that the presumption of ownership based on immemorial

occupation and use could not be sustained because such presumption of fact
is incompatible with the surrounding circumstances of the case, namely
failure of the uncivilized Igorot people to convert to the Christian religion.

Clearly, there was a lack of judicial will to relate the rights of this
uncivilized tribe, in general, and the plaintiff, in particular, to the protective
function of the normative principle of the rule of law. There was not only
failure to do justice to the natives but also exploitation of their country for
private gain.

In the Lying case, a project was awarded to a land developer for the
construction of a road system and harvesting of timber on the ancestral
lands of three American Indian tribes which they consider to be sacred
grounds. Notwithstanding the devastating effect upon the cultural heritage
and freedom of religion of the American Indian tribes, the development
project was upheld on the ground that there is no principle in the American
constitution that could justify the claim of the three Indian tribes. By this, the
Court was saying that the project in question did not create a hindrance on
the freedom of the three American Indian tribes to exercise their religion and
religious beliefs. Simply put, the development project did not penalize the
exercise of religion of the three American Indian tribes nor did it coerce
them, directly or indirectly, to act contrary to the sanctity of their ancestral
lands or to their religious beliefs. On this basis, the Court ruled that the claim
of the three American Indian tribes cannot be afforded the protection of the
rule of law.

Here, there was failure to apply the transforming norm of the rule of

law to the profit motive of the land developer.

Even in the area of permissible contest, the interaction of law, on the

one hand, and the hierarchies of power and wealth, on the other, is more
often than not resolved in favour of the dominant liberal paradigm. This is
very real for example, in the criminal justice system. Thus, for the critical
legal scholars, the Aristotlean concept of the rule of law has been
misinterpreted by the dominant liberal paradigm as a means of making
people believe that the contemporary liberal socio-legal order is fair and
impartial. And so any resultant disadvantage is debonairly dismissed by the
dominant liberal paradigm to be due to individual deficiencies. In a word, the
law has not reigned really, the dominant liberal paradigm has.

History and Development of Critical Legal Studies

CLS was officially started in 1977,. at the conference at the University
of Wisconsin-Madison, but its roots extend back to 1960 when many of its
founding members participated in social activism surrounding the Civil Rights
movement and the Vietnam War. Many CLS scholars entered law school in
those years and began to apply the ideas, theories, and philosophies of post
modernity (intellectual movements of the last half of the twentieth century)
to the study of law. They borrowed from such diverse fields as social theory,
political philosophy, economics, and literary theory. Since then CLS has
steadily grown in influence and permanently changed the landscape of legal
theory. Among noted CLS theorists are Roberto Mangabeira Unger, Robert W.
Gordon, Morton J. Horwitz, Duncan Kennedy, and Katharine A. MacKinnon.
Although CLS has been largely a U.S. movement, it was influenced to a
great extent by European philosophers, such as nineteenth-century German

social theorists Karl Marx, Friedrich Engels, and Max Weber; Max Horkheimer
and Herbert Marcuse of the Frankfurt school of German social philosophy; the
Italian marxist Antonio Gramsci; and poststructuralist French thinkers Michel
Foucault and Jacques Derrida, representing respectively the fields of history
and literary theory. CLS has borrowed heavily from Legal Realism, the school
of legal thought that flourished in the 1920s and 1930s. Like CLS scholars,
legal realists rebelled against accepted legal theories of the day and urged
more attention to the social context of the law.
CLS includes several subgroups with fundamentally different, even
contradictory, views: feminist legal theory, which examines the role of
gender in the law; critical race theory (CRT), which is concerned with the role
of race in the law; postmodernism, a critique of the law influenced by
developments in literary theory; and a subcategory that emphasizes political
economy and the economic context of legal decisions and issues.

Criticism Against Critical Legal Studies

The legal realism of this jurisprudential movement is a critique directed

against the disclosure, agenda and practices of the dominant liberal
paradigm, such as the ways in which the language of impartiality, objective
due process, and value-free procedures which hide and conceal partisan
operations of power and elite forms of social victimization.

Ronald Dworkin one of the leading supporters of the dominant liberal

paradigm, dismisses the thrusts of critical legal scholarship as spectacular
and even embarrassing failures.

Some defenders of liberal paradigm have gone as far as branding

critical legal scholarship as but another form of radical socialism, no different
from critical social realism of Karl Marx.

Karl Marx championed the eradication of the dominant liberal

bourgeois society and its substitution by the socialist society expressing the
interests and aspirations of all toiling classes.

According to Marx, the bourgeois concept of law is the will of the

dominant elite erected into legislation, a will whose essential character and
direction are determined by material and economic conditions of the
existence of the dominant class.

Cornel West, professor of religion at Princeton University, brands

critical legal realists as the academic left subculture. He finds many of the
criticisms leveled by critical legal realists against the tradition of the
dominant liberal paradigm persuasive, and he states that he has not fully
understood their animosity and hostility toward liberalism.

References:

http://www.law.cornell.edu/wex/critical_legal_theory

Cornel West, Reassessing the Critical Legal Studies Movement,Loyola Law

Review 34 (1988): 265-275.

http://cyber.law.harvard.edu/bridge/CriticalTheory/critical2.htm

http://law.jrank.org/pages/5893/Critical-Legal-Studies.html

What is Legal Formalism?

Formalism is defined as any system that stresses on form. Some

examples are principles, laws, and rules as the ultimate ground of
explanation for any case or phenomena.

Legal Formalism is a philosophy that law is a self-contained discipline,

and that there is always one correct answer to legal problems that can be
reached using the internal tools of the discipline, primarily logic, precedent
and rules. In this rigid model, the decisive legal rule serves as the major
premise, the material facts constitute the minor premise, and the decision is
reached strictly by deductive reasoning. In other words, decisions are said to
inevitably follow on the bases of stare decisis. (uplaw)

This is used in contradiction with realism, which argues that, at least in

some cases, the tools of formal legal analysis will not produce a single
answer, and that legal-decision makers will, in such cases, refer to extralegal policy considerations.1 Formalism may also be described as
mechanical jurisprudence, which is the belief that not only is there a right
answer to legal questions that can be derived using the internal sources of
the legal discipline, but that this correct answer can be rather
straightforwardly deduced through a mechanical process.2

1http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1004&context=ipt
2 Frederick Schauer, Formalism, 97 YALE

L.J. 509, 523 (1988) (arguing that [m]echanical deducibility

need not entail closure and nonmechanical judgments can be made within the boundaries of a single
system).

Implicit in Legal Formalism is the so-called formalist fiction. It is a

mental construct that believes the process leading to the enactment of laws
had already included normative or other societal considerations. The final
product which is the law is thus a closed system and need not admit of any
normative consideration when interpreted by judges. All that the judge would
do is to clinically, neutrally and dispassionately apply the law using the rules
of logic to a set of facts, and that would be the decision or resolution of the
case.

Formalism is closely related to positivism, which concerns "law at the point

where it emerges from the institutional processes that brought it into being",
meaning that how the law made and the "directions of human effort [that]
went into its creation are irrelevant".[5] If positivism is understood as an
explanation of what law is, formalism can be said to be a positivist
explanation of how law and legal systems operate.
Legal formalism believes that law consists of rules and principles; and
that these rules can be applied in any particular set of facts or case. Legal
formalism treats law like math or science. Formalists believe that in the same
way a mathematician or scientist identifies the relevant axioms, applies
those to given data, and systematically reaches a demonstrable theorem, a
judge identifies the relevant legal principles, applies them to the facts of a
case, and logically deduces a rule that will govern the outcome of a dispute.
The belief of this view is that Legal Formalism provides certainty, stability,
and predictability to the law.

Formalists believe that justice is a product of properly and evenly

applying written law. Law, according to the formalists, must be explicit and
enforceable. It is the job of the legislature to adapt the law to new situations.
3Gil Marvel Tabucanon, Legal Philosophy for Filipinos, a Case Study Approach

Legal formalism respects tradition, authority, habit and training. It casts the
judge less as a philosopher of law than as an interpreter and guardian of law.

Legal Formalism has three principal dimensions. First, it represents the

notion that law is made by the state and its agencies so that all legal rules
appear imperative and willed by the political sovereign. Law is enacted by a
legislature and is derived from the state, which is seen as an external
impersonal force which governs the people from above, and which also has
unrestricted sovereignty and the absolute power to make rules. It is created
by the legal institutions themselves and appears to be relatively autonomous
of the natural 'social order'. The validity of law is determined not by its
substantive content but by formal questions about its precedence, its
pedigree and its procedural correctness.
The second characteristic of legal formalism is its indifference to
substantive justice. Dominant groups and individuals exercise their power by
subjecting every citizen to the same rules so that formal justice masks
substantive social differences and inequalities. Legal discourse is isolated
from the purview of political, social and ethical/moral discourses, and legal
reasoning is severed from any external criterion which can be used to judge
and evaluate social behaviour. Thus moral standards, ethical behaviour and,
crucially, questions of justice are eliminated from legal reasoning. What the
law is and what it ought to be are argued by legal practitioners to be
independent questions. Indeed, modern judges are expected to be remote
and disinterested.
Its third characteristic is its explicitly rational and scientific discourse, a
product of the Enlightenment and hence an expression of a conscious desire
to understand and control the material world. Legal formalism presents law
as a gapless, logical and internally coherent system, in which correct legal
decisions can be deduced by formal reasoning. These characteristics of
formalism are frequently hailed as virtues yet merely serve to emphasise the

false separation of judgement from political and social factors.4

The Negotiable Instruments Law is more or less formalistic. In section
1, it states that:
Section 1. Form of negotiable instruments. - An instrument to be
negotiable must conform to the following requirements:
(a) It must be in writing and signed by the maker or drawer;
(b) Must contain an unconditional promise or order to pay a sum
certain in money;
(c) Must be payable on demand, or at a fixed or determinable
future time;
(d) Must be payable to order or to bearer; and
(e) Where the instrument is addressed to a drawee, he must be
named or otherwise indicated therein with reasonable certainty.5
It is based on a set of logically organized rules, and to determine
whether an instrument is negotiable or not, one only needs to check the said
section.
The law on contracts however admits of more ambiguity such that its
resolution must not depend only on formalistic grounds. Art. 1306 of the Civil
Code provides: The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they
are not contrary to law, morals, good customs, public order, or public policy.

History of Legal Formalism

English jurist Sir Edward Coke was among the first to popularize the
formalistic approach to law in Anglo-American history. Coke believed that the
Common Law was "the peculiar science of judges." The common law, Coke
said, represented the "artificial perfection of reason" obtained through "long
4 Lawyers Handbook Critical Legal Theory: The Power of Law Sam Adelman and Ken Foster
5 http://www.chanrobles.com/actno2031.htm#.UUP7YKI-eSo

study, observation, and experience." Coke also believed that only lawyers,
judges, and others trained in the law could fully comprehend and apply this
highest method of reasoning.6

Formalism, thus, became the most powerful response to these

challenges, because it maintained that judicial decisions should be based on
abstract, general rules rather than explicit policy considerations or an
evaluation of fairness in individual cases. By emphasizing what it was not,
formalism identified two important areas of institutional conflict for a
judiciary struggling to consolidate the power it had successfully claimed in
the first half of the century. (1) Formalism underscored that courts were not
legislatures. Courts increasingly cast themselves in opposition to legislatures
as defenders of timeless values and exercised the authority to declare
statutes unconstitutional. (2) Formalism reinforced the distinctions between
judge and jury. Fundamental inquiries such as the question whether two
parties had formed a legally binding contract, came to be regarded as issues
of law to be decided by a judge rather than issues of act to be decided by the
jury.

Christopher Colombus Langdell invigorated Coke's jurisprudence of

artificial reason in the United States during the second half of the nineteenth
century. Langdell compared the study of law to the study of science, and
suggested that law school classrooms were the laboratories of jurisprudence.
Judicial reasoning, Langdell believed, parallels the reasoning used in
geometric proofs. He urged professors of law to classify and arrange legal
principles much as a taxonomist organizes plant and animal life. Langdell
articulated what has remained the orthodox school of thought in U.S.
6 http://law.jrank.org/pages/7913/Jurisprudence-Formalism.html

jurisprudence throughout the twentieth century.

Since the early 1970s, Professor Ronald Dworkin has been the foremost
advocate of the formalist approach with some subtle variations.

Dworkin

acknowledges that legal reasoning is not a mechanical exercise, and that legal
answers require exercising judgment. Although Dworkin stops short of explicitly
comparing law to science and math, he maintains that law is best explained as a
rational and cohesive system of principles that judges must apply with integrity.
The principle of integrity requires that judges provide equal treatment to all litigants
presenting legal claims that cannot honestly be distinguished. Application of this
principle, Dworkin contends, will produce a "right answer" in all cases. 7

In 1988, Frederick Schauer, Professor of Law at the University of Michigan,

published an article 'Formalism' in The Yale Law Journal. Schauer urges scholars to
rethink the "contemporary aversion to formalism" and states that his goal is to
rescue formalism from conceptual banishment. He argues formalism should be
conceptually rethought, not in terms of merely whether it is a good or bad thing, but
rather in terms of how language both can and should be used to restrict the power
of decision makers in the decision making process.

Legal Formalism and Interpretation

A different descriptive use of the term legal formalism refers to a range

of techniques of legal interpretation.

7 Ibid.

Intentionalism interprets laws according to the intent of the lawmakers. It is a

theory of legal interpretation which holds that when interpreting the law, judges
should refer to the original intent or meaning as it was understood at the time the
law was written. Intentionalists call the courts attention to the original reasons or
understanding of the lawmakers at the time they enacted the statute. This theory is
synonymous with the doctrines of original understanding and originalism.

Legal intentionalists strictly adhere to the separation of powers doctrine,

particularly the grant of the legislative powers and prerogatives to Congress. They
believe such power need not be tampered by any other branch of the government,
much less the judiciary.

In Cayetano v Monsod, then President Aquino nominated Christian Monsod as

Commissioner

of

the

Commission

on

Elections.

Monsods

nomination

was

challenged on the ground that he had not been practicing law for at least ten years,
a legal requirement for the post, and that while Monsods previous work involved
the use of his legal expertise, it did not involve court litigation. 8 The issue raised
was what constitutes the definition of practice of law.

The Court ruled that law practice involves any activity whether in or out of
court which requires the application of law, legal procedure, training, knowledge
and experience. Even though Christian Monsod was not a court litigation lawyer, his
previous work experiences as a lawyer-economist, a lawyer-manager, a lawyerentrepreneur of industry, a lawyer- negotiator of contracts, among others, more
than satisfies the constitutional requirements of the practice of law.

8 Cayetano v. Monsod, G.R. No. 100113

Textualism, on the other hand, interprets the law according to the readers
understanding. It believes that law has serious consequences for those outside the
legislature and that the ultimate recipients of the law are the people, hence they
should not be made responsible to laws which they lack fair notice or
understanding. Textualism holds that the laws ordinary societal meaning should
govern its interpretation. A textualist does not care about legislative intent, what is
important to him is what the plain text means taken in terms of the common public
understanding of the text. Thus, a textualist interpretation focuses upon what the
text would reasonably be understood to mean, rather than upon what it was
intended to mean.

In the Gerona and Balbuena cases, members of the Jehovahs Witnesses who
were students in the public school were expelled due to their refusal to obey
Department Order No. 8, s.1955, issued by the Secretary of Education promulgating
rules and regulations for the conduct of the compulsory flag ceremony in all schools,
as provided in Republic Act No. 1265. The law was assailed as unconstitutional due
to its alleged violation of the freedom of religion clause in the Constitution. The
petitioners (recipients of the law) contend that the Filipino flag is an image within a
religious definition while the flag salute is a religious ceremony which violates their
right to religion. The Supreme Court held that:

The flag is not an image but a symbol of the Republic of the

Philippines, an emblem of national sovereignty, of national unity and
cohesion and of freedom and liberty which it and the Constitution
guarantee and protect. Considering the complete separation of church
and state in our system of government, the flag is utterly devoid of
any religious significance. Saluting the flag consequently does not
involve any religious ceremony. The flag salute, particularly the recital
of the pledge of loyalty is no more a religious ceremony than the
taking of an oath of office by a public official or by a candidate for
admission to the bar. In said oath, taken while his right hand is raised,
he swears allegiance to the Republic of the Philippines, promises to
defend the Constitution and even invokes the help of God; and it is to

be doubted whether a member of Jehovah's Witness who is a

candidate for admission to the Philippine Bar would object to taking
the oath on the ground that it is religious ceremony. 9

The Supreme Court, in addition, held that:

After all, the determination of whether a certain ritual is or is not a

religious ceremony must rest with the courts. It cannot be left to a
religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for there
might be as many interpretations and meanings to be given to a
certain ritual or ceremony as there are religious groups or sects or
followers, all depending upon the meaning which they, though in all
sincerity and good faith, may want to give to such ritual or ceremony. 10

Criticism of Legal Formalism

The formalist concept of the judicial process is characteristic of the
positivist perspective of the nature of the law. Legal Formalism is criticized as
a simplification of legal reasoning.

While legal formalists see their strict and technical adherence in the
interpretation of the law as a virtue, some critics see this as a ruthless way of
unwittingly promoting injustice. Critics see in legal formalism a false
dichotomy or separation between law and social/human realities. Legal
formalists insist that legislators make laws through the democratic process,
9 See Gerona et al., v. Secretary of Education., 106 Philo 2; Gil Balbuena, et al.,v Sec. of Education,
G.R. No. L-14283, November 29, 1960.

10 Ibid.

hence the law should be strictly interpreted as such. To deviate from

legislative intent is to usurp legislative authority, in effect undermining the
entire democratic structure of the state.11

To the legal realists, the formalist concept of the adjudicative process is

nothing but mechanical jurisprudence. Justice Holmes, in particular, condemned
this black and white approach as simplistic and warned that in the adjucative
process what the courts will do in fact is not achieved only by the interpretation of
rules on the facts. The law, explained Justice Holmes, is more rational and more
civilized when every rule it contains is referred articulately and definitely to an end
which it serves.12

One of the primary threats to legal formalism is the independent jury.

Juries are more interested in justice than in law. To legal formalists, injustice
under law is preferable to a justice which is the product of discretion. As
Duncan Kennedy puts it, legal formalism "involves the morally delicate
refusal to respond to the call for justice in the particular case, for reasons
that may be bad or good according to the circumstances."13

Legal Realism and Legal Formalism

Legal Realism began in 1881 when Oliver Wendell Holmes, Jr. published
11 Gil Marvel Tabucanon, Legal Philosophy for Filipinos, a Case Study Approach
12 Holmes, O.W., The Path of the Law, 10 Harvard Law Review.
13 http://jurygeek.blogspot.com/2005/06/did-legal-formalism-mortally-wound.html

The Common Law attacking the orthodox view of law by stating the life
of the law has not been logic, it has been experience.

Legal Realism is the concept that the law, as a malleable and pliable body of
guidelines, should be enforced creatively and liberally in order that the law serves
good public policy and social interests. Legal realists see the legal world as a
means to promote justice and the protection of human rights. Legal realists often
believe that judges should develop and update law incrementally because they, as
the closest branch in touch with economic, social, and technological realities, should
and can adapt the law accordingly to meet those needs. They often believe judges
should have broad discretion and decide matters on an individual basis, because
legislatures are infamous for being slow or innate to act to such pressures for
change.

Legal Formalism and Legal Realism are two views which are at opposite ends
of the legal spectrum. On one end, with Legal Realism, we find no absolutes. Rulings
are dependent on the judge, their experiences, personal persuasions, and even how
they feel that particular day. It can also depend on who the participants in the case
are. Decisions should be made for the greater good. And if a judge perceives a
wrong that the legislature hasnt made right, they might create the law themselves.

On the other end, Legal Formalism believes that absolutes exist. Cases are
decided by specific rules, standards, and common meaning of the laws in force. The
judge's experiences, persuasions, and how he or she feels plays no rule in the
decision of the case. Legal Formalism is characterized by the rigid application of
legal rules on the facts of the case.

Legal Formalism

Perez, Raniros
Rodriguez, Mary Elizabeth Christine

Submitted to: Atty. Rochelle Dakanay - Galano

San Beda College Alabang

School of Law
Legal Philosophy

Common Law

Submitted to:
Atty. Rochelle Dakanay-Galano

Submitted By:
Antoinette Valerie Yap Duque
Karen Villacarlos

DEFINITION
Common law, also known as case law or precedent, is law developed
by judges through decisions of courts and similar tribunals, as opposed to
statutes adopted through the legislative process or regulations issued by the
executive branch
A "common law system" is a legal system that gives great precedential
weight to common law, on the principle that it is unfair to treat similar facts

differently on different occasions. The body of precedent is called "common

law" and it binds future decisions. In cases where the parties disagree on
what the law is, a common law court looks to past precedential decisions of
relevant courts. If a similar dispute has been resolved in the past, the court is
bound to follow the reasoning used in the prior decision (this principle is
known as stare decisis). If, however, the court finds that the current dispute
is fundamentally distinct from all previous cases (called a "matter of first
impression"), judges have the authority and duty to make law by creating
precedent. Thereafter, the new decision becomes precedent, and will bind
future courts.
In practice, common law systems are considerably more complicated
than the simplified system described above. The decisions of a court are
binding only in a particular jurisdiction, and even within a given jurisdiction,
some courts have more power than others. For example, in most
jurisdictions, decisions by appellate courts are binding on lower courts in the
same jurisdiction and on future decisions of the same appellate court, but
decisions of lower courts are only non-binding persuasive authority.
Interactions between common law, constitutional law, statutory law and
regulatory law also give rise to considerable complexity. However, stare
decisis, the principle that similar cases should be decided according to
consistent principled rules so that they will reach similar results, lies at the
heart of all common law systems.

HISTORY AND CHARACTERISTICS

History
Established by Alfred the Great, King of Wessex (871-899AD)
Alfred the Great compiled the laws and customs of the nation into the
"Liber Judicialis," based on the Ten Commandments and the Golden
Rule.
Characteristics
1. Uncodified - there is no comprehensive compilation of legal rules and
statutes, rely on some scattered statutes but is largely dependent on
PRECEDENT maintained over time through the records of the courts as well

as historically documented in collections of case law

2. Defends property rights and rights of self-defense
Some examples:
1. The Charter of Liberties - Makes the Monarch subject to the law
2. The 1102 Synod of Westminster - abolished slavery in England
3. The 1627 Petition of Right - granted the right to criticise the
government without fear of arrest.
4. Magna Carta
5. Declaration of Right
CONTRASTING PRINCIPLES OF OTHER LAW SYSTEMS
COMMON LAW vs. CIVIL LAW
1. Codifying Statutes
COMMON - detailed definitions are provided and each rule sets
out lengthy enumerations of specific applications or exceptions.
CIVIL - mostly concise; does not provide definitions; states
principles in broad, general phrases.
2. Principle of Precedents and Stare Decisis
COMMON - Stare Decisis
CIVIL - primarily bound to codes and reason
3. Method of legal thinking and finding of justice
COMMON Reasoning on a case to case basis:

Generalizations or principles are only developed through

deciding single cases. In this respect the principle of
precedents is truly typical for common law. The central role
in common law is played by the judge, who thinks and
decides historically, concretely, goes by facts and without
any noticeable dogmatic conceptual construct.

CIVIL The Abstract Rule:

civil law thinking means to develop abstract principles

regardless of single cases and to apply these abstract
principles to the facts of the case by a process of

subsuming. Thus in civil law the abstract rule, whose

applicability to every single case has to be checked, takes
the center stage. This method requires anticipating and
solving of problems prior to their appearance, while
common lawyers are rather in a position to wait and see
and react to the problems when they appear. Therefore it
does not surprise that in civil law the dogmatic, abstract
and norm-based thinking scholar dominates rather than
the judge. So in civil law it is doctrine including the
codifiers reports about the legislative process that has
priority over jurisprudence while in common law it is the
opposite way around.
4. Functions of Doctrine
COMMON Find differences and similarities in decided cases
and to extract specific rules from decided cases.
CIVIL - Provide all practitioners, including the courts, with a
guideline for handling and deciding of specific future cases by
developing basic rules and principles from the numerous legal
treatises and to some extent also from cases.
5. Appointment and Selection of Judges
COMMON - selects and appoints only from among the pool of
experienced and practicing lawyers.
CIVIL - Common practice to appoint young highly skilled but
inexperienced graduates.
6. Procedural Differences
COMMON Adversarial

- In this system the attorneys are responsible for presenting the

facts of the case, the positions of each party and the legal views
including all relevant precedents.
DUTY OF JUDGE - only to manage the proceeding, to review all
facts of the case and legal views presented to him and finally to
decide the case on that basis, or when the case is tried by a
judge and jury, to sum up the evidence and the legal principles
for the assistance of the jury.
procedural rules in common law put the parties in a position
where they are able to find out the facts of the case so that they

can present these facts to the judge, respectively in some cases

to a jury, and make it possible for the judge or the jury to make
the right decision.44 Needless to say, the right decision
depends on each partys own view.
CIVIL Inquisitorial

The civil proceedings in civil law are depending on the parties

(respectively their attorneys) preferences, too, but judges have
a much more active part to play than judges in common law.
DUTY OF JUDGE - only to manage the proceeding, to review all
facts of the case and legal views presented to him and finally to
decide the case on that basis, or when the case is tried by a
judge and jury, to sum up the evidence and the legal principles
for the assistance of the jury.
Procedural rules in civil law focus rather on settlement of the
dispute. This also explains the parties limited role in presenting
evidence. In civil law it is all about finding out the most likely
version of the facts of the case. So it is more or less accepted
that sometimes decisions may be not right, that is, are not
based on the absolute truth.

COMMON LAW vs STATUTORY LAW AND ADMINISTRATIVE LAW

Statutory law is enacted by a legislature, regulatory law is promulgated
by executive branch agencies pursuant to delegation of rule-making
authority from the legislature, and common law or "case law", i.e., decisions
issued by courts (or quasi-judicial tribunals within agencies).
It is further differentiated into
(a) pure common law arising from the traditional and inherent
authority of courts to define what the law is, even in absence of an
underlying statute, e.g., most criminal law and procedural law before
the 20th century, and even today, most of contract law and the law of
torts, and
(b) court decisions that interpret and decide the fine boundaries and
distinctions in law promulgated by other bodies.

COMMON LAW vs EQUITY

Before 1873, England had two parallel court systems: courts of "law"
that could only award money damages and recognized only the legal owner
of property, and courts of "equity" (courts of chancery) that could issue
injunctive relief (that is, a court order to a party to do something, give
something to someone, or stop doing something) and recognized trusts of
property. This split propagated to many of the colonies, including the United
States.
For most purposes, most jurisdictions, including the U.S. federal system and
most states, have merged the two courts. Additionally, even before the
separate courts were merged, most courts were permitted to apply both law
and equity, though under potentially different procedural law. Nonetheless,
the historical distinction between "law" and "equity" remains important today
when the case involves issues such as the following:

categorizing and prioritizing rights to propertyfor example, the same

article of property often has a "legal title" and an "equitable title," and
these two groups of ownership rights may be held by different people.

in the United States, determining whether the Seventh Amendment's

right to a jury trial applies (a determination of a fact necessary to
resolution of a "common law" claim) or whether the issue will be
decided by a judge (issues of what the law is, and all issues relating to
equity).

the standard of review and degree of deference given by an appellate

tribunal to the decision of the lower tribunal under review (issues of
law are reviewed de novo, that is, "as if new" from scratch by the
appellate tribunal, while most issues of equity are reviewed for "abuse
of discretion," that is, with great deference to the tribunal below).

the remedies available and rules of procedure to be applied.

Mark Nel N. Francisco

1A
Report

Legal Philosophy
Written

Historical Background (6-10): M

Immanuel Kant was born April 22, 1724 in Knigsberg, near the southeastern shore
of the Baltic Sea. Today Knigsberg has been renamed Kaliningrad and is part of
Russia. But during Kant's lifetime Knigsberg was the capitol of East Prussia, and its
dominant language was German. Though geographically remote from the rest of
Prussia and other German cities, Knigsberg was then a major commercial center,
an important military port, and a relatively cosmopolitan university town.
Kant was born into an artisan family of modest means. His father was a master
harness maker, and his mother was the daughter of a harness maker, though she
was better educated than most women of her social class. Kant's family was never
destitute, but his father's trade was in decline during Kant's youth and his parents
at times had to rely on extended family for financial support.
Kant's parents were Pietist and he attended a Pietist school, the Collegium
Fridericianum, from ages eight through fifteen. Pietism was an evangelical Lutheran
movement that emphasized conversion, reliance on divine grace, the experience of
religious emotions, and personal devotion involving regular Bible study, prayer, and
introspection. Kant reacted strongly against the forced soul-searching to which he
was subjected at the Collegium Fridericianum, in response to which he sought
refuge in the Latin classics, which were central to the school's curriculum. Later the
mature Kant's emphasis on reason and autonomy, rather than emotion and
dependence on either authority or grace, may in part reflect his youthful reaction
against Pietism. But although the young Kant loathed his Pietist schooling, he had
deep respect and admiration for his parents, especially his mother, whose genuine
religiosity he described as not at all enthusiastic. According to his biographer,
Manfred Kuehn, Kant's parents probably influenced him much less through their
Pietism than through their artisan values of hard work, honesty, cleanliness, and
independence, which they taught him by example.
Kant attended college at the University of Knigsberg, known as the Albertina,
where his early interest in classics was quickly superseded by philosophy, which all
first year students studied and which encompassed mathematics and physics as
well as logic, metaphysics, ethics, and natural law. Kant's philosophy professors
exposed him to the approach of Christian Wolff (16791750), whose critical
synthesis of the philosophy of G. W. Leibniz (16461716) was then very influential in
German universities. But Kant was also exposed to a range of German and British

critics of Wolff, and there were strong doses of Aristotelianism and Pietism
represented in the philosophy faculty as well. Kant's favorite teacher was Martin
Knutzen (17131751), a Pietist who was heavily influenced by both Wolff and the
English philosopher John Locke (16321704). Knutzen introduced Kant to the work of
Isaac Newton (16421727), and his influence is visible in Kant's first published work,
Thoughts on the True Estimation of Living Forces (1747), which was a critical
attempt to mediate a dispute in natural philosophy between Leibnizians and
Newtonians over the proper measurement of force.
After college Kant spent six years as a private tutor to young children outside
Knigsberg. By this time both of his parents had died and Kant's finances were not
yet secure enough for him to pursue an academic career. He finally returned to
Knigsberg in 1754 and began teaching at the Albertina the following year. For the
next four decades Kant taught philosophy there, until his retirement from teaching
in 1796 at the age of seventy-two.
Kant had a burst of publishing activity in the years after he returned from working
as a private tutor. In 1754 and 1755 he published three scientific works one of
which, Universal Natural History and Theory of the Heavens (1755), was a major
book in which, among other things, he developed what later became known as the
nebular hypothesis about the formation of the solar system. Unfortunately, the
printer went bankrupt and the book had little immediate impact. To secure
qualifications for teaching at the university, Kant also wrote two Latin dissertations:
the first, entitled Concise Outline of Some Reflections on Fire (1755), earned him the
Magister degree; and the second, New Elucidation of the First Principles of
Metaphysical Cognition (1755), entitled him to teach as an unsalaried lecturer. The
following year he published another Latin work, The Employment in Natural
Philosophy of Metaphysics Combined with Geometry, of Which Sample I Contains
the Physical Monadology (1756), in hopes of succeeding Knutzen as associate
professor of logic and metaphysics, though Kant failed to secure this position. Both
the New Elucidation, which was Kant's first work concerned mainly with
metaphysics, and the Physical Monadology further develop the position on the
interaction of finite substances that he first outlined in Living Forces. Both works
depart from Leibniz-Wolffian views, though not radically. The New Elucidation in
particular shows the influence of Christian August Crusius (17151775), a German
critic of Wolff.
As an unsalaried lecturer at the Albertina Kant was paid directly by the students
who attended his lectures, so he needed to teach an enormous amount and to
attract many students in order to earn a living. Kant held this position from 1755 to
1770, during which period he would lecture an average of twenty hours per week on
logic, metaphysics, and ethics, as well as mathematics, physics, and physical
geography. In his lectures Kant used textbooks by Wolffian authors such as
Alexander Gottlieb Baumgarten (17141762) and Georg Friedrich Meier (1718

1777), but he followed them loosely and used them to structure his own reflections,
which drew on a wide range of ideas of contemporary interest. These ideas often
stemmed from British sentimentalist philosophers such as David Hume (17111776)
and Francis Hutcheson (16941747), some of whose texts were translated into
German in the mid-1750's; and from the Swiss philosopher Jean-Jacques Rousseau
(17121778), who published a flurry of works in the early 1760's. From early in his
career Kant was a popular and successful lecturer. He also quickly developed a local
reputation as a promising young intellectual and cut a dashing figure in Knigsberg
society.
After several years of relative quiet, Kant unleashed another burst of publications in
17621764, including five philosophical works. The False Subtlety of the Four
Syllogistic Figures (1762) rehearses criticisms of Aristotelian logic that were
developed by other German philosophers. The Only Possible Argument in Support of
a Demonstration of the Existence of God (17623) is a major book in which Kant
drew on his earlier work in Universal History and New Elucidation to develop an
original argument for God's existence as a condition of the internal possibility of all
things, while criticizing other arguments for God's existence. The book attracted
several positive and some negative reviews. In 1762 Kant also submitted an essay
entitled Inquiry Concerning the Distinctness of the Principles of Natural Theology
and Morality to a prize competition by the Prussian Royal Academy, though Kant's
submission took second prize to Moses Mendelssohn's winning essay (and was
published with it in 1764). Kant's Prize Essay, as it is known, departs more
significantly from Leibniz-Wolffian views than his earlier work and also contains his
first extended discussion of moral philosophy in print. The Prize Essay draws on
British sources to criticize German rationalism in two respects: first, drawing on
Newton, Kant distinguishes between the methods of mathematics and philosophy;
and second, drawing on Hutcheson, he claims that an unanalysable feeling of the
good supplies the material content of our moral obligations, which cannot be
demonstrated in a purely intellectual way from the formal principle of perfection
alone (2:299). These themes reappear in the Attempt to Introduce the Concept of
Negative Magnitudes into Philosophy (1763), whose main thesis, however, is that
the real opposition of conflicting forces, as in causal relations, is not reducible to the
logical relation of contradiction, as Leibnizians held. In Negative Magnitudes Kant
also argues that the morality of an action is a function of the internal forces that
motivate one to act, rather than of the external (physical) actions or their
consequences. Finally, Observations on the Feeling of the Beautiful and the Sublime
(1764) deals mainly with alleged differences in the tastes of men and women and of
people from different cultures. After it was published, Kant filled his own interleaved
copy of this book with (often unrelated) handwritten remarks, many of which reflect
the deep influence of Rousseau on his thinking about moral philosophy in the mid1760's.
These works helped to secure Kant a broader reputation in Germany, but for the

most part they were not strikingly original. Like other German philosophers at the
time, Kant's early works are generally concerned with using insights from British
empiricist authors to reform or broaden the German rationalist tradition without
radically undermining its foundations. While some of his early works tend to
emphasize rationalist ideas, others have a more empiricist emphasis. During this
time Kant was striving to work out an independent position, but before the 1770's
his views remained fluid.
In 1766 Kant published his first work concerned with the possibility of metaphysics,
which later became a central topic of his mature philosophy. Dreams of a Spirit-Seer
Elucidated by Dreams of Metaphysics, which he wrote soon after publishing a short
Essay on Maladies of the Mind (1764), was occasioned by Kant's fascination with the
Swedish visionary Emanuel Swedenborg (16881772), who claimed to have insight
into a spirit world that enabled him to make a series of apparently miraculous
predictions. In this curious work Kant satirically compares Swedenborg's spiritvisions to the belief of rationalist metaphysicians in an immaterial soul that survives
death, and he concludes that philosophical knowledge of either is impossible
because human reason is limited to experience. The skeptical tone of Dreams is
tempered, however, by Kant's suggestion that moral faith nevertheless supports
belief in an immaterial and immortal soul, even if it is not possible to attain
metaphysical knowledge in this domain (2:373).
In 1770, at the age of forty-six, Kant was appointed to the chair in logic and
metaphysics at the Albertina, after teaching for fifteen years as an unsalaried
lecturer and working since 1766 as a sublibrarian to supplement his income. Kant
was turned down for the same position in 1758. But later, as his reputation grew, he
declined chairs in philosophy at Erlangen (1769) and Jena (1770) in hopes of
obtaining one in Knigsberg. After Kant was finally promoted, he gradually extended
his repertoire of lectures to include anthropology (Kant's was the first such course in
Germany and became very popular), rational theology, pedagogy, natural right, and
even mineralogy and military fortifications. In order to inaugurate his new position,
Kant also wrote one more Latin dissertation: Concerning the Form and Principles of
the Sensible and Intelligible World (1770), which is known as the Inaugural
Dissertation.
The Inaugural Dissertation departs more radically from both Wolffian rationalism
and British sentimentalism than Kant's earlier work. Inspired by Crusius and the
Swiss natural philosopher Johann Heinrich Lambert (17281777), Kant distinguishes
between two fundamental powers of cognition, sensibility and understanding
(intelligence), where the Leibniz-Wolffians regarded understanding (intellect) as the
only fundamental power. Kant therefore rejects the rationalist view that sensibility is
only a confused species of intellectual cognition, and he replaces this with his own
view that sensibility is distinct from understanding and brings to perception its own
subjective forms of space and time a view that developed out of Kant's earlier

criticism of Leibniz's relational view of space in Concerning the Ultimate Ground of

the Differentiation of Directions in Space (1768). Moreover, as the title of the
Inaugural Dissertation indicates, Kant argues that sensibility and understanding are
directed at two different worlds: sensibility gives us access to the sensible world,
while understanding enables us to grasp a distinct intelligible world. These two
worlds are related in that what the understanding grasps in the intelligible world is
the paradigm of NOUMENAL PERFECTION, which is a common measure for all
other things in so far as they are realities. Considered theoretically, this intelligible
paradigm of perfection is God; considered practically, it is MORAL PERFECTION
(2:396). The Inaugural Dissertation thus develops a form of Platonism; and it rejects
the view of British sentimentalists that moral judgments are based on feelings of
pleasure or pain, since Kant now holds that moral judgments are based on pure
understanding alone.
After 1770 Kant never surrendered the views that sensibility and understanding are
distinct powers of cognition, that space and time are subjective forms of human
sensibility, and that moral judgments are based on pure understanding (or reason)
alone. But his embrace of Platonism in the Inaugural Dissertation was short-lived.
He soon denied that our understanding is capable of insight into an intelligible
world, which cleared the path toward his mature position in the Critique of Pure
Reason (1781), according to which the understanding (like sensibility) supplies
forms that structure our experience of the sensible world, to which human
knowledge is limited, while the intelligible (or noumenal) world is strictly
unknowable to us. Kant spent a decade working on the Critique of Pure Reason and
published nothing else of significance between 1770 and 1781. But its publication
marked the beginning of another burst of activity that produced Kant's most
important and enduring works. Because early reviews of the Critique of Pure Reason
were few and (in Kant's judgment) uncomprehending, he tried to clarify its main
points in the much shorter Prolegomena to Any Future Metaphysics That Will Be
Able to Come Forward as a Science (1783). Among the major books that rapidly
followed are the Groundwork of the Metaphysics of Morals (1785), Kant's main work
on the fundamental principle of morality; the Metaphysical Foundations of Natural
Science (1786), his main work on natural philosophy in what scholars call his critical
period (17811798); the second and substantially revised edition of the Critique of
Pure Reason (1787); the Critique of Practical Reason (1788), a fuller discussion of
topics in moral philosophy that builds on (and in some ways revises) the
Groundwork; and the Critique of the Power of Judgment (1790), which deals with
aesthetics and teleology. Kant also published a number of important essays in this
period, including Idea for a Universal History With a Cosmopolitan Aim (1784) and
Conjectural Beginning of Human History (1786), his main contributions to the
philosophy of history; An Answer to the Question: What is Enlightenment? (1784),
which broaches some of the key ideas of his later political essays; and What Does it
Mean to Orient Oneself in Thinking? (1786), Kant's intervention in the pantheism
controversy that raged in German intellectual circles after F. H. Jacobi (17431819)

accused the recently deceased G. E. Lessing (17291781) of Spinozism.

With these works Kant secured international fame and came to dominate German
philosophy in the late 1780's. But in 1790 he announced that the Critique of the
Power of Judgment brought his critical enterprise to an end (5:170). By then K. L.
Reinhold (17581823), whose Letters on the Kantian Philosophy (1786) popularized
Kant's moral and religious ideas, had been installed (in 1787) in a chair devoted to
Kantian philosophy at Jena, which was more centrally located than Knigsberg and
rapidly developing into the focal point of the next phase in German intellectual
history. Reinhold soon began to criticize and move away from Kant's views. In 1794
his chair at Jena passed to J. G. Fichte, who had visited the master in Knigsberg and
whose first book, Attempt at a Critique of All Revelation (1792), was published
anonymously and initially mistaken for a work by Kant himself. This catapulted
Fichte to fame, but he too soon moved away from Kant and developed an original
position quite at odds with Kant's, which Kant finally repudiated publicly in 1799
(12:370371). Yet while German philosophy moved on to assess and respond to
Kant's legacy, Kant himself continued publishing important works in the 1790's.
Among these are Religion Within the Boundaries of Mere Reason (1793), which drew
a censure from the Prussian King when Kant published the book after its second
essay was rejected by the censor; The Conflict of the Faculties (1798), a collection
of essays inspired by Kant's troubles with the censor and dealing with the
relationship between the philosophical and theological faculties of the university; On
the Common Saying: That May be Correct in Theory, But it is of No Use in Practice
(1793), Toward Perpetual Peace (1795), and the Doctrine of Right, the first part of
the Metaphysics of Morals (1797), Kant's main works in political philosophy; the
Doctrine of Virtue, the second part of the Metaphysics of Morals (1797), a catalogue
of duties that Kant had been planning for more than thirty years; and Anthropology
From a Pragmatic Point of View (1798), based on Kant's anthropology lectures.
Several other compilations of Kant's lecture notes from other courses were
published later, but these were not prepared by Kant himself.
Kant retired from teaching in 1796. For nearly two decades he had lived a highly
disciplined life focused primarily on completing his philosophical system, which
began to take definite shape in his mind only in middle age. After retiring he came
to believe that there was a gap in this system separating the metaphysical
foundations of natural science from physics itself, and he set out to close this gap in
a series of notes that postulate the existence of an ether or caloric matter. These
notes, known as the Opus Postumum, remained unfinished and unpublished in
Kant's lifetime, and scholars disagree on their significance and relation to his earlier
work. It is clear, however, that these late notes show unmistakable signs of Kant's
mental decline, which became tragically precipitous around 1800. Kant died
February 12, 1804, just short of his eightieth birthday.

The Science of Right (15-19): M

A. What the Science of Right is.

The Science of Right has for its object the principles of all the laws which it
is possible to promulgate by external legislation. Where there is such a
legislation, it becomes, in actual application to it, a system of positive right
and law; and he who is versed in the knowledge of this system is called a
jurist or jurisconsult (jurisconsultus). A practical jurisconsult (jurisperitus), or
a professional lawyer, is one who is skilled in the knowledge of positive
external laws, and who can apply them to cases that may occur in
experience. Such practical knowledge of positive right, and law, may be
regarded as belonging to jurisprudence (jurisprudentia) in the original sense
of the term. But the theoretical knowledge of right and law in principle, as
distinguished from positive laws and empirical cases, belongs to the pure
science of right (jurisscientia). The science of right thus designates the
philosophical and systematic knowledge of the principles of natural right.
And it is from this science that the immutable principles of all positive
legislation must be derived by practical jurists and lawgivers.
B. What is Right?
This question may be said to be about as embarrassing to the jurist as the
well-known question, What is truth? is to the logician. It is all the more so,
if, on reflection, he strives to avoid tautology in his reply and recognise the
fact that a reference to what holds true merely of the laws of some one
country at a particular time is not a solution of the general problem thus
proposed. It is quite easy to state what may be right in particular cases (quid
sit juris), as being what the laws of a certain place and of a certain time say
or may have said; but it is much more difficult to determine whether what
they have enacted is right in itself, and to lay down a universal criterion by
which right and wrong in general, and what is just and unjust, may be
recognised. All this may remain entirely hidden even from the practical jurist
until he abandon his empirical principles for a time and search in the pure
reason for the sources of such judgements, in order to lay a real foundation
for actual positive legislation. In this search, his empirical laws may, indeed,
furnish him with excellent guidance; but a merely empirical system that is
void of rational principles is, like the wooden head in the fable of Phaedrus,
fine enough in appearance, but unfortunately it wants brain. 1. The
conception of right as referring to a corresponding obligation which is the
moral aspect of it in the first place, has regard only to the external and

practical relation of one person to another, in so far as they can have

influence upon each other, immediately or mediately, by their actions as
facts. 2. In the second place, the conception of right does not indicate the
relation of the action of an individual to the wish or the mere desire of
another, as in acts of benevolence or of unkindness, but only the relation of
his free action to the freedom of action of the other. 3. And, in the third
place, in this reciprocal relation of voluntary actions, the conception of right
does not take into consideration the matter of the matter of the act of will in
so far as the end which any one may have in view in willing it is concerned.
In other words, it is not asked in a question of right whether any one on
buying goods for his own business realizes a profit by the transaction or not;
but only the form of the transaction is taken into account, in considering the
relation of the mutual acts of will. Acts of will or voluntary choice are thus
regarded only in so far as they are free, and as to whether the action of one
can harmonize with the freedom of another, according to a universal law.
Right, therefore, comprehends the whole of the conditions under which the
voluntary actions of any one person can be harmonized in reality with the
voluntary actions of every other person, according to a universal law of
freedom.
C. Universal Principle of Right.
Every action is right which in itself, or in the maxim on which it proceeds,
is such that it can coexist along with the freedom of the will of each and all in
action, according to a universal law. If, then, my action or my condition
generally can coexist with the freedom of every other, according to a
universal law, any one does me a wrong who hinders me in the performance
of this action, or in the maintenance of this condition. For such a hindrance
or obstruction cannot coexist with freedom according to universal laws. It
follows also that it cannot be demanded as a matter of right, that this
universal principle of all maxims shall itself be adopted as my maxim, that is,
that I shall make it the maxim of my actions. For any one may be free,
although his freedom is entirely indifferent to me, or even if I wished in my
heart to infringe it, so long as I do not actually violate that freedom by my
external action. Ethics, however, as distinguished from jurisprudence,
imposes upon me the obligation to make the fulfilment of right a maxim of
my conduct. The universal law of right may then be expressed thus: Act
externally in such a manner that the free exercise of thy will may be able to
coexist with the freedom of all others, according to a universal law. This is

undoubtedly a law which imposes obligation upon me; but it does not at all
imply and still less command that I ought, merely on account of this
obligation, to limit my freedom to these very conditions. Reason in this
connection says only that it is restricted thus far by its idea, and may be
likewise thus limited in fact by others; and it lays this down as a postulate
which is not capable of further proof. As the object in view is not to teach
virtue, but to explain what right is, thus far the law of right, as thus laid
down, may not and should not be represented as a motive-principle of
action.
D. Right is Conjoined with the Title or Authority to Compel.
The resistance which is opposed to any hindrance of an effect is in reality
a furtherance of this effect and is in accordance with its accomplishment.
Now, everything that is wrong is a hindrance of freedom, according to
universal laws; and compulsion or constraint of any kind is a hindrance or
resistance made to freedom. Consequently, if a certain exercise of freedom is
itself a hindrance of the freedom that is according to universal laws, it is
wrong; and the compulsion of constraint which is opposed to it is right, as
being a hindering of a hindrance of freedom, and as being in accord with the
freedom which exists in accordance with universal laws. Hence, according to
the logical principle of contradiction, all right is accompanied with an implied
title or warrant to bring compulsion to bear on any one who may violate it in
fact.
Constitutional and Juridical Consequences arising from the Nature of
the Civil Union +Final Words and Conclusion (26-27): M
Constitutional and Juridical Consequences arising from the Nature of
the Civil Union.
A. Right of the Supreme
Revolution; Reform.

Power;

Treason;

Dethronement;

The origin of the supreme power is practically inscrutable by the people

who are placed under its authority. In other words, the subject need not
reason too curiously in regard to its origin in the practical relation, as if the
right of the obedience due to it were to be doubted (jus controversum). For
as the people, in order to be able to abjudicate with a title of right regarding

the supreme power in the state, must be regarded as already united under
one common legislative will, it cannot judge otherwise than as the present
supreme head of the state (summus imperans) wills. The question has been
raised as to whether an actual contract of subjection (pactum subjectionis
civilis) originally preceded the civil government as a fact; or whether the
power arose first, and the law only followed afterwards, or may have followed
in this order. But such questions, as regards the people already actually living
under the civil law, are either entirely aimless, or even fraught with subtle
danger to the state. For, should the subject, after having dug down to the
ultimate origin of the state, rise in opposition to the present ruling authority,
he would expose himself as a citizen, according to the law and with full right,
to be punished, destroyed, or outlawed. A law which is so holy and inviolable
that it is practically a crime even to cast doubt upon it, or to suspend its
operation for a moment, is represented of itself as necessarily derived from
some supreme, unblameable lawgiver. And this is the meaning of the maxim,
All authority is from God, which proposition does not express the historical
foundation of the civil constitution, but an ideal principle of the practical
reason. It may be otherwise rendered thus: It is a duty to obey the law of
the existing legislative power, be its origin what it may. Hence it follows,
that the supreme power in the state has only rights, and no (compulsory)
duties towards the subject. Further, if the ruler or regent, as the organ of the
supreme power, proceeds in violation of the laws, as in imposing taxes,
recruiting soldiers, and so on, contrary to the law of equality in the
distribution of the political burdens, the subject may oppose complaints and
objections (gravamina) to this injustice, but not active resistance. There
cannot even be an Article contained in the political constitution that would
make it possible for a power in the state, in case of the transgression of the
constitutional laws by the supreme authority, to resist or even to restrict it in
so doing. For, whoever would restrict the supreme power of the state must
have more, or at least equal, power as compared with the power that is so
restricted; and if competent to command the subjects to resist, such a one
would also have to be able to protect them, and if he is to be considered
capable of judging what is right in every case, he may also publicly order
resistance. But such a one, and not the actual authority, would then be the
supreme power; which is contradictory. The supreme sovereign power, then,
in proceeding by a minister who is at the same time the ruler of the state,
consequently becomes despotic; and the expedient of giving the people to
imagine when they have properly only legislative influence that they
act by their deputies by way of limiting the sovereign authority, cannot so
mask and disguise the actual despotism of such a government that it will not

appear in the measures and means adopted by the minister to carry out his
function. The people, while represented by their deputies in parliament,
under such conditions, may have in these warrantors of their freedom and
rights, persons who are keenly interested on their own account and their
families, and who look to such a minister for the benefit of his influence in
the army, navy, and public offices. And hence, instead of offering resistance
to the undue pretensions of the government whose public declarations
ought to carry a prior accord on the part of the people, which, however,
cannot be allowed in peace, they are rather always ready to play into the
hands of the government. Hence the so-called limited political constitution,
as a constitution of the internal rights of the state, is an unreality; and
instead of being consistent with right, it is only a principle of expediency. And
its aim is not so much to throw all possible obstacles in the way of a powerful
violator of popular rights by his arbitrary influence upon the government, as
rather to cloak it over under the illusion of a right of opposition conceded to
the people. Resistance on the part of the people to the supreme legislative
power of the state is in no case legitimate; for it is only by submission to the
universal legislative will, that a condition of law and order is possible. Hence
there is no right of sedition, and still less of rebellion, belonging to the
people. And least of all, when the supreme power is embodied in an
individual monarch, is there any justification, under the pretext of his abuse
of power, for seizing his person or taking away his life (monarchomachismus
sub specie tyrannicidii). The slightest attempt of this kind is high treason
(proditio eminens); and a traitor of this sort who aims at the overthrow of his
country may be punished, as a political parricide, even with death. It is the
duty of the people to bear any abuse of the supreme power, even then
though it should be considered to be unbearable. And the reason is that any
resistance of the highest legislative authority can never but be contrary to
the law, and must even be regarded as tending to destroy the whole legal
constitution. In order to be entitled to offer such resistance, a public law
would be required to permit it. But the supreme legislation would by such a
law cease to be supreme, and the people as subjects would be made
sovereign over that to which they are subject; which is a contradiction. And
the contradiction becomes more apparent when the question is put: Who is
to be the judge in a controversy between the people and the sovereign? For
the people and the sovereign are to be constitutionally or juridically regarded
as two different moral persons; but the question shows that the people would
then have to be the judge in their own cause.
The dethronement of a monarch may be also conceived as a voluntary

abdication of the crown, and a resignation of his power into the hands of the
people; or it might be a deliberate surrender of these without any assault on
the royal person, in order that the monarch may be relegated into private
life. But, however it happen, forcible compulsion of it, on the part of the
people, cannot be justified under the pretext of a right of necessity (casus
necessitatis); and least of all can the slightest right be shown for punishing
the sovereign on the ground of previous maladministration. For all that has
been already done in the quality of a sovereign must be regarded as done
outwardly by right; and, considered as the source of the laws, the sovereign
himself can do no wrong. Of all the abominations in the overthrow of a state
by revolution, even the murder or assassination of the monarch is not the
worst. For that may be done by the people out of fear, lest, if he is allowed to
live, he may again acquire power and inflict punishment upon them; and so it
may be done, not as an act of punitive justice, but merely from regard to
self-preservation. It is the formal execution of a monarch that horrifies a soul
filled with ideas of human right; and this feeling occurs again and again as of
as the mind realizes the scenes that terminated the fate of Charles I or Louis
XVI. Now how is this feeling to be explained? It is not a mere aesthetic
feeling, arising from the working of the imagination, nor from sympathy,
produced by fancying ourselves in the place of the sufferer. On the contrary,
it is a moral feeling arising from the entire subversion of all our notions of
right. Regicide, in short, is regarded as a crime which always remains such
and can never be expiated (crimen immortale, inexpiabile); and it appears to
resemble that sin which the theologians declare can neither be forgiven in
this world nor in the next. The explanation of this phenomenon in the human
mind appears to be furnished by the following reflections upon it; and they
even shed some light upon the principles of political right. Every
transgression of a law only can and must be explained as arising from a
maxim of the transgressor making such wrong-doing his rule of action; for
were it not committed by him as a free being, it could not be imputed to him.
But it is absolutely impossible to explain how any rational individual forms
such a maxim against the clear prohibition of the law-giving reason; for it is
only events which happen according to the mechanical laws of nature that
are capable of explanation. Now a transgressor or criminal may commit his
wrong-doing either according to the maxim of a rule supposed to be valid
objectively and universally, or only as an exception from the rule by
dispensing with its obligation for the occasion. In the latter case, he only
diverges from the law, although intentionally. He may, at the same time,
abhor his own transgression, and without formally renouncing his obedience
to the law only wish to avoid it. In the former case, however, he rejects the

authority of the law itself, the validity of which, however, he cannot

repudiate before his own reason, even while he makes it his rule to act
against it. His maxim is, therefore, not merely defective as being negatively
contrary to the law, but it is even positively illegal, as being diametrically
contrary and in hostile opposition to it. So far as we can see into and
understand the relation, it would appear as if it were impossible for men to
commit wrongs and crimes of a wholly useless form of wickedness, and yet
the idea of such extreme perversity cannot be overlooked in a system of
moral philosophy. There is thus a feeling of horror at the thought of the
formal execution of a monarch by his people. And the reason it is that,
whereas an act of assassination must be considered as only an exception
from the rule which has been constituted a maxim, such an execution must
be regarded as a complete perversion of the principles that should regulate
the relation between a sovereign and his people. For it makes the people,
who owe their constitutional existence to the legislation that issued from the
sovereign, to be the ruler over him. Hence mere violence is thus elevated
with bold brow, and as it were by principle, above the holiest right; and,
appearing like an abyss to swallow up everything without recall, it seems like
suicide committed by the state upon itself and a crime that is capable of no
atonement. There is therefore reason to assume that the consent that is
accorded to such executions is not really based upon a supposed principle of
right, but only springs from fear of the vengeance that would be taken upon
the people were the same power to revive again in the state. And hence it
may be held that the formalities accompanying them have only been put
forward in order to give these deeds a look of punishment from the
accompaniment of a judicial process, such as could not go along with a mere
murder or assassination. But such a cloaking of the deed entirely fails of its
purpose, because this pretension on the part of the people is even worse
than murder itself, as it implies a principle which would necessarily make the
restoration of a state, when once overthrown, an impossibility. An alteration
of the still defective constitution of the state may sometimes be quite
necessary. But all such changes ought only to proceed from the sovereign
power in the way of reform, and are not to be brought about by the people in
the way of revolution; and when they take place, they should only effect the
executive, and not the legislative, power. A political constitution which is so
modified that the people by their representatives in parliament can legally
resist the executive power, and its representative minister, is called a limited
constitution. Yet even under such a constitution there is no right of active
resistance, as by an arbitrary combination of the people to coerce the
government into a certain active procedure; for this would be to assume to

perform an act of the executive itself. All that can rightly be allowed, is only a
negative resistance, amounting to an act of refusal on the part of the people
to concede all the demands which the executive may deem it necessary to
make in behoof of the political administration. And if this right were never
exercised, it would be a sure sign that the people were corrupted, their
representatives venal, the supreme head of the government despotic, and
his ministers practically betrayers of the people. Further, when on the
success of a revolution a new constitution has been founded, the
unlawfulness of its beginning and of its institution cannot release the
subjects from the obligation of adapting themselves, as good citizens, to the
new order of things; and they are not entitled to refuse honourably to obey
the authority that has thus attained the power in the state. A dethroned
monarch, who has survived such a revolution, is not to be called to account
on the ground of his former administration; and still less may he be punished
for it, when with drawing into the private life of a citizen he prefers his own
quiet and the peace of the state to the uncertainty of exile, with the intention
of maintaining his claims for restoration at all hazards, and pushing these
either by secret counter-revolution or by the assistance of other powers.
However, if he prefers to follow the latter course, his rights remain, because
the rebellion that drove him from his position was inherently unjust. But the
question then emerges as to whether other powers have the right to form
themselves into an alliance in behalf of such a dethroned monarch merely in
order not to leave the crime committed by the people unavenged, or to do
away with it as a scandal to all the states; and whether they are therefore
justified and called upon to restore by force to another state a formerly
existing constitution that has been removed by a revolution. The discussion
of this question, however, does not belong to this department of public right,
but to the following section, concerning the right of nations.
B. Land Rights. Secular and Church Lands, Rights of Taxation;
Finance; Police; Inspection.
Is the sovereign, viewed as embodying the legislative power, to be
regarded as the supreme proprietor of the soil, or only as the highest ruler of
the people by the laws? As the soil is the supreme condition under which it is
alone possible to have external things as ones own, its possible possession
and use constitute the first acquirable basis of external right. Hence it is that
all such rights must be derived from the sovereign as overlord and
paramount superior of the soil, or, as it may be better put, as the supreme

proprietor of the land (dominus territorii). The people, as forming the mass of
the subjects, belong to the sovereign as a people; not in the sense of his
being their proprietor in the way of real right, but as their supreme
commander or chief in the way of personal right. This supreme
proprietorship, however, is only an idea of the civil constitution, objectified to
represent, in accordance with juridical conceptions, the necessary union of
the private property of all the people under a public universal possessor. The
relation is so represented in order that it may form a basis for the
determination of particular rights in property. It does not proceed, therefore,
upon the principle of mere aggregation, which advances empirically from the
parts to the whole, but from the necessary formal principle of a division of
the soil according to conceptions of right. In accordance with this principle,
the supreme universal proprietor cannot have any private property in any
part of the soil; for otherwise he would make himself a private person.
Private property in the soil belongs only to the people, taken distributively
and not collectively; from which condition, however, a nomadic people must
be excepted as having no private property at all in the soil. The supreme
proprietor accordingly ought not to hold private estates, either for private
use or for the support of the court. For, as it would depend upon his own
pleasure how far these should extend, the state would be in danger of seeing
all property in the land taken into the hands of the government, and all the
subjects treated as bondsmen of the soil (glebae adscripti). As possessors
only of what was the private property of another, they might thus be
deprived of all freedom and regarded as serfs or slaves. Of the supreme
proprietor of the land, it may be said that he possesses nothing as his own,
except himself; for if he possessed things in the state alongside of others,
dispute and litigation would be possible with these others regarding those
things, and there would be no independent judge to settle the cause. But it
may also be said that he possesses everything; for he has the supreme right
of sovereignty over the whole people, to whom all external things severally
(divisim) belong; and as such he assigns distributively to every one what is
to be his. Hence there cannot be any corporation in the state, nor any class
or order, that as proprietors can transmit the land for a sole exclusive use to
the following generations for all time (ad infinitum), according to certain
fixed statutes. The state may annul and abrogate all such statutes at any
time, only under the condition of indemnifying survivors for their interests.
The order of knights, constituting the nobility regarded as a mere rank or
class of specially titled individuals, as well as the order of the clergy, called
the church, are both subject to this relation. They can never be entitled by
any hereditary privileges with which they may be favoured, to acquire an

absolute property in the soil transmissible to their successors. They can only
acquire the use of such property for the time being. If public opinion has
ceased, on account of other arrangements, to impel the state to protect itself
from negligence in the national defence by appeal to the military honour of
the knightly order, the estates granted on that condition may be recalled.
And, in like manner, the church lands or spiritualities may be reclaimed by
the state without scruple, if public opinion has ceased to impel the members
of the state to maintain masses for the souls of the dead, prayers for the
living, and a multitude of clergy, as means to protect themselves from
eternal fire. But in both cases, the condition of indemnifying existing
interests must be observed. Those who in this connection fall under the
movement of reform are not entitled to complain that their property is taken
from them; for the foundation of their previous possession lay only in the
opinion of the people, and it can be valid only so long as this opinion lasts. As
soon as this public opinion in favour of such institutions dies out, or is even
extinguished in the judgement of those who have the greatest claim by their
acknowledged merit to lead and represent it, the putative proprietorship in
question must cease, as if by a public appeal made regarding it to the state
(a rege male informato ad regem melius informandum). On this primarily
acquired supreme proprietorship in the land rests the right of the sovereign,
as universal proprietor of the country, to assess the private proprietors of the
soil, and to demand taxes, excise, and dues, or the performance of service to
the state such as may be required in war. But this is to be done so that it is
actually the people that assess themselves, this being the only mode of
proceeding according to laws of right. This may be effected through the
medium of the body of deputies who represent the people. It is also
permissible, in circumstances in which the state is in imminent danger, to
proceed by a forced loan, as a right vested in the sovereign, although this
may be a divergence from the existing law. Upon this principle is also
founded the right of administering the national economy, including the
finance and the police. The police has specially to care for the public safety,
convenience, and decency. As regards the last of these the feeling or
negative taste for public propriety it is important that it be not deadened
by such influences as begging, disorderly noises, offensive smells, public
prostitution (Venus vulgivaga), or other offences against the moral sense, as
it greatly facilitates the government in the task of regulating the life of the
people by law. For the preservation of the state there further belongs to it a
right of inspection (jus inspectionis), which entitles the public authority to
see that no secret society, political or religious, exists among the people that
can exert a prejudicial influence upon the public weal. Accordingly, when it is

required by the police, no such secret society may refuse to lay open its
constitution. But the visitation and search of private houses by the police can
only be justified in a case of necessity; and in every particular instance, it
must be authorized by a higher authority.
C. Relief of the Poor. Foundling Hospitals. The Church.
The sovereign, as undertaker of the duty of the people, has the right to
tax them for purposes essentially connected with their own preservation.
Such are, in particular, the relief of the poor, foundling asylums, and
ecclesiastical establishments, otherwise designated charitable or pious
foundations. 1. The people have in fact united themselves by their common
will into a society, which has to be perpetually maintained; and for this
purpose they have subjected themselves to the internal power of the state,
in order to preserve the members of this society even when they are not able
to support themselves. By the fundamental principle of the state, the
government is justified and entitled to compel those who are able, to furnish
the means necessary to preserve those who are not themselves capable of
providing for the most necessary wants of nature. For the existence of
persons with property in the state implies their submission under it for
protection and the provision by the state of what is necessary for their
existence; and accordingly the state founds a right upon an obligation on
their part to contribute of their means for the preservation of their fellow
citizens. This may be carried out by taxing the property or the commercial
industry of the citizens, or by establishing funds and drawing interest from
them, not for the wants of the state as such, which is rich, but for those of
the people. And this is not to be done merely by voluntary contributions, but
by compulsory exactions as state-burdens, for we are here considering only
the right of the state in relation to the people. Among the voluntary modes of
raising such contributions, lotteries ought not to be allowed, because they
increase the number of those who are poor, and involve danger to the public
property. It may be asked whether the relief of the poor ought to be
administered out of current contributions, so that every age should maintain
its own poor; or whether this were better done by means of permanent funds
and charitable institutions, such as widows homes, hospitals, etc.? And if the
former method is the better, it may also be considered whether the means
necessary are to be raised by a legal assessment rather than by begging,
which is generally nigh akin to robbing. The former method must in reality be
regarded as the only one that is conformable to the right of the state, which

cannot withdraw its connection from any one who has to live. For a legal
current provision does not make the profession of poverty a means of gain
for the indolent, as is to be feared is the case with pious foundations when
they grow with the number of the poor; nor can it be charged with being an
unjust or unrighteous burden imposed by the government on the people. 2.
The state has also a right to impose upon the people the duty of preserving
children exposed from want or shame, and who would otherwise perish; for it
cannot knowingly allow this increase of its power to be destroyed, however
unwelcome in some respects it may be. But it is a difficult question to
determine how this may most justly be carried out. It might be considered
whether it would not be right to exact contributions for this purpose from the
unmarried persons of both sexes who are possessed of means, as being in
part responsible for the evil; and further, whether the end in view would be
best carried out by foundling hospitals, or in what other way consistent with
right. But this is a problem of which no solution has yet been offered that
does not in some measure offend against right or morality. 3. The church is
here regarded as an ecclesiastical establishment merely, and as such it must
be carefully distinguished from religion, which as an internal mode of feeling
lies wholly beyond the sphere of the action of the civil power. Viewed as an
institution for public worship founded for the people to whose opinion or
conviction it owes its origin the church establishment responds to a real
want in the state. This is the need felt by the people to regard themselves as
also subjects of a Supreme Invisible Power to which they must pay homage,
and which may of be brought into a very undesirable collision with the civil
power. The state has therefore a right in this relation; but it is not to be
regarded as the right of constitutional legislation in the church, so as to
organize it as may seem most advantageous for itself, or to prescribe and
command its faith and ritual forms of worship (ritus); for all this must be left
entirely to the teachers and rulers which the church has chosen for itself. The
function of the state in this connection, only includes the negative right of
regulating the influence of these public teachers upon the visible political
commonwealth, that it may not be prejudicial to the public peace and
tranquillity. Consequently the state has to take measures, on occasion of any
internal conflict in the church, or on occasion of any collision of the several
churches with each other, that civil concord is not endangered; and this right
falls within the province of the police. It is beneath the dignity of the
supreme power to interpose in determining what particular faith the church
shall profess, or to decree that a certain faith shall be unalterably held, and
that the church may not reform itself. For in doing so, the supreme power
would be mixing itself up in a scholastic wrangle, on a footing of equality

with its subjects; the monarch would be making himself a priest; and the
churchmen might even reproach the supreme power with understanding
nothing about matters of faith. Especially would this hold in respect of any
prohibition of internal reform in the church; for what the people as a whole
cannot determine upon for themselves cannot be determined for the people
by the legislator. But no people can ever rationally determine that they will
never advance farther in their insight into matters of faith, or resolve that
they will never reform the institutions of the church; because this would be
opposed to the humanity in their own persons and to their highest rights.
And therefore the supreme power cannot of itself resolve and decree in these
matters for the people. As regards the cost of maintaining the ecclesiastical
establishment, for similar reasons this must be derived not from the public
funds of the state, but from the section of the people who profess the
particular faith of the church; and thus only ought it to fall as a burden on the
community.
D. The Right of Assigning Offices and Dignities in the State.
The right of the supreme authority in the state also includes: 1. The
distribution of offices, as public and paid employments; 2. The conferring of
dignities, as unpaid distinctions of rank, founded merely on honour, but
establishing a gradation of higher and lower orders in the political scale; the
latter, although free in themselves, being under obligation determined by the
public law to obey the former so far as they are also entitled to command; 3.
Besides these relatively beneficent rights, the supreme power in the state is
also invested with the right of administering punishment. As regards civil
offices, the question arises as to whether the sovereign has the right, after
bestowing an office on an individual, to take it again away at his mere
pleasure, without any crime having been committed by the holder of the
office. I say, No. For what the united will of the people would never resolve,
regarding their civil officers, cannot (constitutionally) be determined by the
sovereign regarding them. The people have to bear the cost incurred by the
appointment of an official, and undoubtedly it must be their will that any one
in office should be completely competent for its duties. But such competency
can only be acquired by a long preparation and training, and this process
would necessarily occupy the time that would be required for acquiring the
means of support by a different occupation. Arbitrary and frequent changes
would therefore, as a rule, have the effect of filling offices with functionaries
who have not acquired the skill required for their duties, and whose

judgements had not attained maturity by practice. All this is contrary to the
purpose of the state. And besides it is requisite in the interest of the people
that it should be possible for every individual to rise from a lower office to
the higher offices, as these latter would otherwise fall into incompetent
hands, and that competent officials generally should have some guarantee of
life-long provision. Civil dignities include not only such as are connected with
a public office, but also those which make the possessors of them, without
any accompanying services to the state, members of a higher class or rank.
The latter constitute the nobility, whose members are distinguished from the
common citizens who form the mass of the people. The rank of the nobility is
inherited by male descendants; and these again communicate it to wives
who are not nobly born. Female descendants of noble families, however, do
not communicate their rank to husbands who are not of noble birth, but they
descend themselves into the common civil status of the people. This being
so, the question then emerges as to whether the sovereign has the right to
found a hereditary rank and class, intermediate between himself and the
other citizens? The import of this question does not turn on whether it is
conformable to the prudence of the sovereign, from regard to his own and
the peoples interests, to have such an institution; but whether it is in
accordance with the right of the people that they should have a class of
persons above them, who, while being subjects like themselves, are yet born
as their commanders, or at least as privileged superiors? The answer to this
question, as in previous instances, is to be derived from the principle that
what the people, as constituting the whole mass of the subjects, could not
determine regarding themselves and their associated citizens, cannot be
constitutionally determined by the sovereign regarding the people. Now a
hereditary nobility is a rank which takes precedence of merit and is hoped for
without any good reason a thing of the imagination without genuine
reality. For if an ancestor had merit, he could not transmit it to his posterity,
but they must always acquire it for themselves. Nature has in fact not so
arranged that the talent and will which give rise to merit in the state, are
hereditary. And because it cannot be supposed of any individual that he will
throw away his freedom, it is impossible that the common will of all the
people should agree to such a groundless prerogative, and hence the
sovereign cannot make it valid. It may happen, however, that such an
anomaly as that of subjects who would be more than citizens, in the manner
of born officials, or hereditary professors, has slipped into the mechanism of
government in olden times, as in the case of the feudal system, which was
almost entirely organized with reference to war. Under such circumstances,
the state cannot deal otherwise with this error of a wrongly instituted rank in

its midst, than by the remedy of a gradual extinction through hereditary

positions being left unfilled as they fall vacant. The state has therefore the
right provisorily to let a dignity in title continue, until the public opinion
matures on the subject. And this will thus pass from the threefold division
into sovereign, nobles, and people, to the twofold and only natural division
into sovereign and people. No individual in the state can indeed be entirely
without dignity; for he has at least that of being a citizen, except when he
has lost his civil status by a crime. As a criminal he is still maintained in life,
but he is made the mere instrument of the will of another, whether it be the
state or a particular citizen. In the latter position, in which he could only be
placed by a juridical judgement, he would practically become a slave, and
would belong as property (dominium) to another, who would be not merely
his master (herus) but his owner (dominus). Such an owner would be entitled
to exchange or alienate him as a thing, to use him at will except for shameful
purposes, and to dispose of his powers, but not of his life and members. No
one can bind himself to such a condition of dependence, as he would thereby
cease to be a person, and it is only as a person that he can make a contract.
It may, however, appear that one man may bind himself to another by a
contract of hire, to discharge a certain service that is permissible in its kind,
but is left entirely undetermined as regards its measure or amount; and that
as receiving wages or board or protection in return, he thus becomes only a
servant subject to the will of a master (subditus) and not a slave (servus).
But this is an illusion. For if masters are entitled to use the powers of such
subjects at will, they may exhaust these powers as has been done in the
case of Negroes in the Sugar Island and they may thus reduce their
servants to despair and death. But this would imply that they had actually
given themselves away to their masters as property; which, in the case of
persons, is impossible. A person can, therefore, only contract to perform
work that is defined both in quality and quantity, either as a day-labourer or
as a domiciled subject. In the latter case he may enter into a contract of
lease for the use of the land of a superior, giving a definite rent or annual
return for its utilization by himself, or he may contract for his service as a
labourer upon the land. But he does not thereby make himself a slave, or a
bondsman, or a serf attached to the soil (glebae adscriptus), as he would
thus divest himself of his personality; he can only enter into a temporary or
at most a heritable lease. And even if by committing a crime he has
personally become subjected to another, this subject-condition does not
become hereditary; for he has only brought it upon himself by his own
wrongdoing. Neither can one who has been begotten by a slave be claimed
as property on the ground of the cost of his rearing, because such rearing is

an absolute duty naturally incumbent upon parents; and in case the parents
be slaves, it devolves upon their masters or owners, who, in undertaking the
possession of such subjects, have also made themselves responsible for the
performance of their duties.
E. The Right of Punishing and of Pardoning.
I. The Right of Punishing.
The right of administering punishment is the right of the sovereign as the
supreme power to inflict pain upon a subject on account of a crime
committed by him. The head of the state cannot therefore be punished; but
his supremacy may be withdrawn from him. Any transgression of the public
law which makes him who commits it incapable of being a citizen, constitutes
a crime, either simply as a private crime (crimen), or also as a public crime
(crimen publicum). Private crimes are dealt with by a civil court; public
crimes by a criminal court. Embezzlement or speculation of money or goods
entrusted in trade, fraud in purchase or sale, if done before the eyes of the
party who suffers, are private crimes. On the other hand, coining false
money or forging bills of exchange, theft, robbery, etc., are public crimes,
because the commonwealth, and not merely some particular individual, is
endangered thereby. Such crimes may be divided into those of a base
character (indolis abjectae) and those of a violent character (indolis
violentiae). Judicial or juridical punishment (poena forensis) is to be
distinguished from natural punishment (poena naturalis), in which crime as
vice punishes itself, and does not as such come within the cognizance of the
legislator. Juridical punishment can never be administered merely as a
means for promoting another good either with regard to the criminal himself
or to civil society, but must in all cases be imposed only because the
individual on whom it is inflicted has committed a crime. For one man ought
never to be dealt with merely as a means subservient to the purpose of
another, nor be mixed up with the subjects of real right. Against such
treatment his inborn personality has a right to protect him, even although he
may be condemned to lose his civil personality. He must first be found guilty
and punishable, before there can be any thought of drawing from his
punishment any benefit for himself or his fellow-citizens. The penal law is a
categorical imperative; and woe to him who creeps through the serpentwindings of utilitarianism to discover some advantage that may discharge
him from the justice of punishment, or even from the due measure of it,

according to the Pharisaic maxim: It is better that one man should die than
that the whole people should perish. For if justice and righteousness perish,
human life would no longer have any value in the world. What, then, is to be
said of such a proposal as to keep a criminal alive who has been condemned
to death, on his being given to understand that, if he agreed to certain
dangerous experiments being performed upon him, he would be allowed to
survive if he came happily through them? It is argued that physicians might
thus obtain new information that would be of value to the commonweal. But
a court of justice would repudiate with scorn any proposal of this kind if
made to it by the medical faculty; for justice would cease to be justice, if it
were bartered away for any consideration whatever. But what is the mode
and measure of punishment which public justice takes as its principle and
standard? It is just the principle of equality, by which the pointer of the scale
of justice is made to incline no more to the one side than the other. It may be
rendered by saying that the undeserved evil which any one commits on
another is to be regarded as perpetrated on himself. Hence it may be said:
If you slander another, you slander yourself; if you steal from another, you
steal from yourself; if you strike another, you strike yourself; if you kill
another, you kill yourself. This is the right of retaliation (jus talionis); and,
properly understood, it is the only principle which in regulating a public
court, as distinguished from mere private judgement, can definitely assign
both the quality and the quantity of a just penalty. All other standards are
wavering and uncertain; and on account of other considerations involved in
them, they contain no principle conformable to the sentence of pure and
strict justice. It may appear, however, that difference of social status would
not admit the application of the principle of retaliation, which is that of like
with like. But although the application may not in all cases be possible
according to the letter, yet as regards the effect it may always be attained in
practice, by due regard being given to the disposition and sentiment of the
parties in the higher social sphere. Thus a pecuniary penalty on account of a
verbal injury may have no direct proportion to the injustice of slander; for
one who is wealthy may be able to indulge himself in this offence for his own
gratification. Yet the attack committed on the honour of the party aggrieved
may have its equivalent in the pain inflicted upon the pride of the aggressor,
especially if he is condemned by the judgement of the court, not only to
retract and apologize, but to submit to some meaner ordeal, as kissing the
hand of the injured person. In like manner, if a man of the highest rank has
violently assaulted an innocent citizen of the lower orders, he may be
condemned not only to apologize but to undergo a solitary and painful
imprisonment, whereby, in addition to the discomfort endured, the vanity of

the offender would be painfully affected, and the very shame of his position
would constitute an adequate retaliation after the principle of like with like.
But how then would we render the statement: If you steal from another, you
steal from yourself? In this way, that whoever steals anything makes the
property of all insecure; he therefore robs himself of all security in property,
according to the right of retaliation. Such a one has nothing, and can acquire
nothing, but he has the will to live; and this is only possible by others
supporting him. But as the state should not do this gratuitously, he must for
this purpose yield his powers to the state to be used in penal labour; and
thus he falls for a time, or it may be for life, into a condition of slavery. But
whoever has committed murder, must die. There is, in this case, no juridical
substitute or surrogate, that can be given or taken for the satisfaction of
justice. There is no likeness or proportion between life, however painful, and
death; and therefore there is no equality between the crime of murder and
the retaliation of it but what is judicially accomplished by the execution of
the criminal. His death, however, must be kept free from all maltreatment
that would make the humanity suffering in his person loathsome or
abominable. Even if a civil society resolved to dissolve itself with the consent
of all its members as might be supposed in the case of a people inhabiting
an island resolving to separate and scatter themselves throughout the whole
world the last murderer lying in the prison ought to be executed before the
resolution was carried out. This ought to be done in order that every one may
realize the desert of his deeds, and that blood-guiltiness may not remain
upon the people; for otherwise they might all be regarded as participators in
the murder as a public violation of justice. The equalization of punishment
with crime is therefore only possible by the cognition of the judge extending
even to the penalty of death, according to the right of retaliation. This is
manifest from the fact that it is only thus that a sentence can be pronounced
over all criminals proportionate to their internal wickedness; as may be seen
by considering the case when the punishment of death has to be inflicted,
not on account of a murder, but on account of a political crime that can only
be punished capitally. A hypothetical case, founded on history, will illustrate
this. In the last Scottish rebellion there were various participators in it
such as Balmerino and others who believed that in taking part in the
rebellion they were only discharging their duty to the house of Stuart; but
there were also others who were animated only by private motives and
interests. Now, suppose that the judgement of the supreme court regarding
them had been this: that every one should have liberty to choose between
the punishment of death or penal servitude for life. In view of such an
alternative, I say that the man of honour would choose death, and the knave

would choose servitude. This would be the effect of their human nature as it
is; for the honourable man values his honour more highly than even life
itself, whereas a knave regards a life, although covered with shame, as
better in his eyes than not to be. The former is, without gainsaying, less
guilty than the other; and they can only be proportionately punished by
death being inflicted equally upon them both; yet to the one it is a mild
punishment when his nobler temperament is taken into account, whereas it
is a hard punishment to the other in view of his baser temperament. But, on
the other hand, were they all equally condemned to penal servitude for life,
the honourable man would be too severely punished, while the other, on
account of his baseness of nature, would be too mildly punished. In the
judgement to be pronounced over a number of criminals united in such a
conspiracy, the best equalizer of punishment and crime in the form of public
justice is death. And besides all this, it has never been heard of that a
criminal condemned to death on account of a murder has complained that
the sentence inflicted on him more than was right and just; and any one
would treat him with scorn if he expressed himself to this effect against it.
Otherwise it would be necessary to admit that, although wrong and injustice
are not done to the criminal by the law, yet the legislative power is not
entitled to administer this mode of punishment; and if it did so, it would be in
contradiction with itself. However many they may be who have committed a
murder, or have even commanded it, or acted as art and part in it, they
ought all to suffer death; for so justice wills it, in accordance with the idea of
the juridical power, as founded on the universal laws of reason. But the
number of the accomplices (correi) in such a deed might happen to be so
great that the state, in resolving to be without such criminals, would be in
danger of soon also being deprived of subjects. But it will not thus dissolve
itself, neither must it return to the much worse condition of nature, in which
there would be no external justice. Nor, above all, should it deaden the
sensibilities of the people by the spectacle of justice being exhibited in the
mere carnage of a slaughtering bench. In such circumstances the sovereign
must always be allowed to have it in his power to take the part of the judge
upon himself as a case of necessity and to deliver a judgement which,
instead of the penalty of death, shall assign some other punishment to the
criminals and thereby preserve a multitude of the people. The penalty of
deportation is relevant in this connection. Such a form of judgement cannot
be carried out according to a public law, but only by an authoritative act of
the royal prerogative, and it may only be applied as an act of grace in
individual cases. Against these doctrines, the Marquis Beccaria has given
forth a different view. Moved by the compassionate sentimentality of a

humane feeling, he has asserted that all capital punishment is wrong in itself
and unjust. He has put forward this view on the ground that the penalty of
death could not be contained in the original civil contract; for, in that case,
every one of the people would have had to consent to lose his life if be
murdered any of his fellow citizens. But, it is argued, such a consent is
impossible, because no one can thus dispose of his own life. All this is mere
sophistry and perversion of right. No one undergoes punishment because he
has willed to be punished, but because he has willed a punishable action; for
it is in fact no punishment when any one experiences what he wills, and it is
impossible for any one to will to be punished. To say, I will to be punished, if
I murder any one, can mean nothing more than, I submit myself along with
all the other citizens to the laws; and if there are any criminals among the
people, these laws will include penal laws. The individual who, as a colegislator, enacts penal law cannot possibly be the same person who, as a
subject, is punished according to the law; for, qua criminal, he cannot
possibly be regarded as having a voice in the legislation, the legislator being
rationally viewed as just and holy. If any one, then, enact a penal law against
himself as a criminal, it must be the pure juridically law-giving reason (homo
noumenon), which subjects him as one capable of crime, and consequently
as another person (homo phenomenon), along with all the others in the civil
union, to this penal law. In other words, it is not the people taken
distributively, but the tribunal of public justice, as distinct from the criminal,
that prescribes capital punishment; and it is not to be viewed as if the social
contract contained the promise of all the individuals to allow themselves to
be punished, thus disposing of themselves and their lives. For if the right to
punish must be grounded upon a promise of the wrongdoer, whereby he is to
be regarded as being willing to be punished, it ought also to be left to him to
find himself deserving of the punishment; and the criminal would thus be his
own judge. The chief error (proton pseudos) of this sophistry consists in
regarding the judgement of the criminal himself, necessarily determined by
his reason, that he is under obligation to undergo the loss of his life, as a
judgement that must be grounded on a resolution of his will to take it away
himself; and thus the execution of the right in question is represented as
united in one and the same person with the adjudication of the right. There
are, however, two crimes worthy of death, in respect of which it still remains
doubtful whether the legislature have the right to deal with them capitally. It
is the sentiment of honour that induces their perpetration. The one originates
in a regard for womanly honour, the other in a regard for military honour;
and in both cases there is a genuine feeling of honour incumbent on the
individuals as a duty. The former is the crime of maternal infanticide

(infanticidium maternale); the latter is the crime of killing a fellow-soldier in a

duel (commilitonicidium). Now legislation cannot take away the shame of an
illegitimate birth, nor wipe off the stain attaching from a suspicion of
cowardice, to an officer who does not resist an act that would bring him into
contempt, by an effort of his own that is superior to the fear of death. Hence
it appears that, in such circumstances, the individuals concerned are
remitted to the state of nature; and their acts in both cases must be called
homicide, and not murder, which involves evil intent (homicidium dolosum).
In all instances the acts are undoubtedly punishable; but they cannot be
punished by the supreme power with death. An illegitimate child comes into
the world outside of the law which properly regulates marriage, and it is thus
born beyond the pale or constitutional protection of the law. Such a child is
introduced, as it were, like prohibited goods, into the commonwealth, and as
it has no legal right to existence in this way, its destruction might also be
ignored; nor can the shame of the mother, when her unmarried confinement
is known, be removed by any legal ordinance. A subordinate officer, again,
on whom an insult is inflicted, sees himself compelled by the public opinion
of his associates to obtain satisfaction; and, as in the state of nature, the
punishment of the offender can only be effected by a duel, in which his own
life is exposed to danger, and not by means of the law in a court of justice.
The duel is therefore adopted as the means of demonstrating his courage as
that characteristic upon which the honour of his profession essentially rests;
and this is done even if it should issue in the killing of his adversary. But as
such a result takes place publicly and under the consent of both parties,
although it may be done unwillingly, it cannot properly be called murder
(homicidium dolosum). What then is the right in both cases as relating to
criminal justice? Penal justice is here in fact brought into great straits, having
apparently either to declare the notion of honour, which is certainly no mere
fancy here, to be nothing in the eye of the law, or to exempt the crime from
its due punishment; and thus it would become either remiss or cruel. The
knot thus tied is to be resolved in the following way. The categorical
imperative of penal justice, that the killing of any person contrary to the law
must be punished with death, remains in force; but the legislation itself and
the civil constitution generally, so long as they are still barbarous and
incomplete, are at fault. And this is the reason why the subjective motiveprinciples of honour among the people do not coincide with the standards
which are objectively conformable to another purpose; so that the public
justice issuing from the state becomes injustice relatively to that which is
upheld among the people themselves.

II. The Right of Pardoning.

The right of pardoning (jus aggratiandi), viewed in relation to the criminal,
is the right of mitigating or entirely remitting his punishment. On the side of
the sovereign this is the most delicate of all rights, as it may be exercised so
as to set forth the splendour of his dignity, and yet so as to do a great wrong
by it. It ought not to be exercised in application to the crimes of the subjects
against each other; for exemption from punishment (impunitas criminis)
would be the greatest wrong that could be done to them. It is only an
occasion of some form of treason (crimen laesae majestatis), as a lesion
against himself, that the sovereign should make use of this right. And it
should not be exercised even in this connection, if the safety of the people
would be endangered by remitting such punishment. This right is the only
one which properly deserves the name of a right of majesty.
Sources:
http://www.marxists.org/reference/subject/ethics/kant/morals/ch04.htm
http://plato.stanford.edu/entries/kant/

Aleli Carissa Gimena

Philosophy
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Introduction (Slides 1-5): A

Immanuel Kant (22 April 1724 12 February 1804)
German philosopher from Knigsberg in Prussia who researched,
lectured and wrote on philosophy and anthropology during the
Enlightenment at the end of the 18th century
Born: April 22, 1724
Place of Birth: Knigsberg, Prussia
(now Kaliningrad, Russia)
Died: February 12, 1804 (at age 79)

 Nationality: German
Era: 18th Century Philosophy
Region: Western Philosophy
Main interests: Epistemology, Metaphysics, Ethics, Logic
Philosophy of Law: Categorical Imperative, Science of Right
Influenced by: Wolff, Baumgarten, Tetens, Plato, Aristotle, Epicurus,
Ibn Tufail, Hutcheson, Empiricus, Montaigne, Hume, Pythagoras,
Descartes, Malebranche, Spinoza, Leibniz, Locke, Berkeley, Rousseau,
Newton, Emanuel Swedenborg, Shaftesbury
Categorical Imperative (11-14): A
In both the Groundwork of the Metaphysics of Morals and the Critique of
Practical Reason, Kant also gives a more detailed argument for the
conclusion that morality and freedom reciprocally imply one another, which
is sometimes called the reciprocity thesis (Allison 1990). On this view, to act
morally is to exercise freedom, and the only way to fully exercise freedom is
to act morally. Kant's arguments for this view differ in these texts, but the
general structure of his argument in the Critique of Practical Reason may be
summarized as follows.
First, it follows from the basic idea of having a will that to act at all is to act
on some principle, or what Kant calls a maxim. A maxim is a subjective rule
or policy of action: it says what you are doing and why. Kant gives as
examples the maxims to let no insult pass unavenged and to increase my
wealth by every safe means (5:19, 27). We may be unaware of our maxims,
we may not act consistently on the same maxims, and our maxims may not
be consistent with one another. But Kant holds that since we are rational
beings our actions always aim at some sort of end or goal, which our maxim
expresses. The goal of an action may be something as basic as gratifying a
desire, or it may be something more complex such as becoming a doctor or a
lawyer. In any case, the causes of our actions are never our desires or
impulses, on Kant's view. If I act to gratify some desire, then I choose to act
on a maxim that specifies the gratification of that desire as the goal of my
action. For example, if I desire some coffee, then I may act on the maxim to
go to a cafe and buy some coffee in order to gratify that desire.

Second, Kant distinguishes between two basic kinds of principles or rules

that we can act on: what he calls material and formal principles. To act in
order to satisfy some desire, as when I act on the maxim to go for coffee at a
cafe, is to act on a material principle (5:21ff.). Here the desire (for coffee)
fixes the goal, which Kant calls the object or matter of the action, and the
principle says how to achieve that goal (go to a cafe). Corresponding to
material principles, on Kant's view, are what he calls hypothetical
imperatives. A hypothetical imperative is a principle of rationality that says
that I should act in a certain way if I choose to satisfy some desire. If maxims
in general are rules that describe how one does act, then imperatives in
general prescribe how one should act. An imperative is hypothetical if it says
how I should act only if I choose to pursue some goal in order to gratify a
desire (5:20). This, for example, is a hypothetical imperative: if you want
coffee, then go to the cafe. This hypothetical imperative applies to you only if
you desire coffee and choose to gratify that desire.
In contrast to material principles, formal principles describe how one acts
without making reference to any desires. This is easiest to understand
through the corresponding kind of imperative, which Kant calls a categorical
imperative. A categorical imperative commands unconditionally that I should
act in some way. So while hypothetical imperatives apply to me only on the
condition that I have and set the goal of satisfying the desires that they tell
me how to satisfy, categorical imperatives apply to me no matter what my
goals and desires may be. Kant regards moral laws as categorical
imperatives, which apply to everyone unconditionally. For example, the moral
requirement to help others in need does not apply to me only if I desire to
help others in need, and the duty not to steal is not suspended if I have some
desire that I could satisfy by stealing. Moral laws do not have such conditions
but rather apply unconditionally. That is why they apply to everyone in the
same way.
Third, insofar as I act only on material principles or hypothetical imperatives,
I do not act freely, but rather I act only to satisfy some desire(s) that I have,
and what I desire is not ultimately within my control. To some limited extent
we are capable of rationally shaping our desires, but insofar as we choose to
act in order to satisfy desires we are choosing to let nature govern us rather
than governing ourselves (5:118). We are always free in the sense that we
always have the capacity to govern ourselves rationally instead of letting our
desires set our ends for us. But we may (freely) fail to exercise that capacity.
Moreover, since Kant holds that desires never cause us to act, but rather we

always choose to act on a maxim even when that maxim specifies the
satisfaction of a desire as the goal of our action, it also follows that we are
always free in the sense that we freely choose our maxims. Nevertheless, our
actions are not free in the sense of being autonomous if we choose to act
only on material principles, because in that case we do not give the law to
ourselves, but instead we choose to allow nature in us (our desires) to
determine the law for our actions.
Finally, the only way to act freely in the full sense of exercising autonomy is
therefore to act on formal principles or categorical imperatives, which is also
to act morally. Kant does not mean that acting autonomously requires that
we take no account of our desires, because that would be impossible (5:25,
61). Rather, he holds that we typically formulate maxims with a view to
satisfying our desires, but that as soon as we draw up maxims of the will for
ourselves we become immediately conscious of the moral law (5:29). This
immediate consciousness of the moral law takes the following form:
I have, for example, made it my maxim to increase my wealth by every safe
means. Now I have a deposit in my hands, the owner of which has died and
left no record of it. This is, naturally, a case for my maxim. Now I want only to
know whether that maxim could also hold as a universal practical law. I
therefore apply the maxim to the present case and ask whether it could
indeed take the form of a law, and consequently whether I could through my
maxim at the same time give such a law as this: that everyone may deny a
deposit which no one can prove has been made. I at once become aware
that such a principle, as a law, would annihilate itself since it would bring it
about that there would be no deposits at all. (5:27)
In other words, to assess the moral permissibility of my maxim, I ask whether
everyone could act on it, or whether it could be willed as a universal law. The
issue is not whether it would be good if everyone acted on my maxim, or
whether I would like it, but only whether it would be possible for my maxim
to be willed as a universal law. This gets at the form, not the matter or
content, of the maxim. A maxim has morally permissible form, for Kant, only
if it could be willed as a universal law. If my maxim fails this test, as this one
does, then it is morally impermissible for me to act on it.
If my maxim passes the universal law test, then it is morally permissible for
me to act on it, but I fully exercise my autonomy only if my fundamental
reason for acting on this maxim is that it is morally permissible or required

that I do so. Imagine that I am moved by a feeling of sympathy to formulate

the maxim to help someone in need. In this case, my original reason for
formulating this maxim is that a certain feeling moved me. Such feelings are
not entirely within my control and may not be present when someone
actually needs my help. But this maxim passes Kant's test: it could be willed
as a universal law that everyone help others in need from motives of
sympathy. So it would not be wrong to act on this maxim when the feeling of
sympathy so moves me. But helping others in need would not fully exercise
my autonomy unless my fundamental reason for doing so is not that I have
some feeling or desire, but rather that it would be right or at least
permissible to do so. Only when such a purely formal principle supplies the
fundamental motive for my action do I act autonomously.
So the moral law is a law of autonomy in the sense that freedom and
unconditional practical law reciprocally imply each another (5:29). Even
when my maxims are originally suggested by my feelings and desires, if I act
only on morally permissible (or required) maxims because they are morally
permissible (or required), then my actions will be autonomous. And the
reverse is true as well: for Kant this is the only way to act autonomously.
Division of the Science of Right -Private and Public Right (20-25): A
A. General Division of the Duties of Right. (Juridical Duties).
In this division we may very conveniently follow Ulpian, if his three
formulae are taken in a general sense, which may not have been quite
clearly in his mind, but which they are capable of being developed into or of
receiving. They are the following: 1. Honeste vive. Live rightly. juridical
rectitude, or honour (honestas juridica), consists in maintaining ones own
worth as a man in relation to others. This duty may be rendered by the
proposition: Do not make thyself a mere means for the use of others, but be
to them likewise an end. This duty will be explained in the next formula as
an obligation arising out of the right of humanity in our own person (lex
justi). 2. Neminem laede. Do wrong to no one. This formula may be
rendered so as to mean: Do no wrong to any one, even if thou shouldst be
under the necessity, in observing this duty, to cease from all connection with
others and to avoid all society (lex juridica). 3. Suum cuique tribue.
Assign to every one what is his own. This may be rendered, Enter, if wrong
cannot be avoided, into a society with others in which every one may have
secured to him what is his own. If this formula were to be simply translated,

Give every one his own, it would express an absurdity, for we cannot give
any one what he already has. If it is to have a definite meaning, it must
therefore run thus: Enter into a state in which every one can have what is
his own secured against the action of every other (lex justitiae).
These three classical formulae, at the same time, represent principles
which suggest a division of the system of juridical duties into internal duties,
external duties, and those connecting duties which contain the latter as
deduced from the principle of the former by subsumption.
B. Universal Division of Rights.
I. Natural Right and Positive Right. The system of rights, viewed as a
scientific system of doctrines, is divided into natural right and positive right.
Natural right rests upon pure rational principles a priori; positive or statutory
right is what proceeds from the will of a legislator. II. Innate Right and
Acquired Right. The system of rights may again be regarded in reference to
the implied powers of dealing morally with others as bound by obligations,
that is, as furnishing a legal title of action in relation to them. Thus viewed,
the system is divided into innate right and acquired right. Innate right is that
right which belongs to every one by nature, independent of all juridical acts
of experience. Acquired right is that right which is founded upon such
juridical acts. Innate right may also be called the internal mine and thine
(meum vel tuum internum) for external right must always be acquired.
There is only one Innate Right, the Birthright of Freedom.
Freedom is independence of the compulsory will of another; and in so far
as it can coexist with the freedom of all according to a universal law, it is the
one sole original, inborn right belonging to every man in virtue of his
humanity. There is, indeed, an innate equality belonging to every man which
consists in his right to be independent of being bound by others to anything
more than that to which he may also reciprocally bind them. It is,
consequently, the inborn quality of every man in virtue of which he ought to
be his own master by right (sui juris). There is, also, the natural quality of
justness attributable to a man as naturally of unimpeachable right (justi),
because be has done no wrong to any one prior to his own juridical actions.
And, further, there is also the innate right of common action on the part of
every man, so that he may do towards others what does not infringe their

rights or take away anything that is theirs unless they are willing to
appropriate it; such merely to communicate thought, to narrate anything, or
to promise something whether truly and honestly, or untruly and dishonestly
(veriloquim aut falsiloquim), for it rests entirely upon these others whether
they will believe or trust in it or not. [It is customary to designate every
untruth that is spoken intentionally as such, although it may be in a frivolous
manner a lie, or falsehood (mendacium), because it may do harm, at least in
so far as any one who repeats it in good faith may be made a laughing-stock
of to others on account of his easy credulity. But in the juridical sense, only
that untruth is called a lie which immediately infringes the right of another,
such as a false allegation of a contract having been concluded, when the
allegation is put forward in order to deprive some one of what is his
(falsiloquim dolosum). This distinction of conceptions so closely allied is not
without foundation; because on the occasion of a simple statement of ones
thoughts, it is always free for another to take them as he may; and yet the
resulting repute, that such a one is a man whose word cannot be trusted,
comes so close to the opprobrium of directly calling him a liar, that the
boundary-line separating what, in such a case, belongs to jurisprudence, and
what is special to ethics, can hardly be otherwise drawn.]
But all these rights or titles are already included in the principle of innate
freedom, and are not really distinguished from it, even as dividing members
under a higher species of right.
The reason why such a division into separate rights has been introduced
into the system of natural right, viewed as including all that is innate, was
not without a purpose. Its object was to enable proof to be more readily put
forward in case of any controversy arising about an acquired right, and
questions emerging either with reference to a fact that might be in doubt, or,
if that were established, in reference to a right under dispute. For the party
repudiating an obligation, and on whom the burden of proof (onus probandi)
might be incumbent, could thus methodically refer to his innate right of
freedom as specified under various relations in detail, and could therefore
found upon them equally as different titles of right. In the relation of innate
right, and consequently of the internal mine and thine, there is therefore not
rights, but only one right. And, accordingly, this highest division of rights into
innate and acquired, which evidently consists of two members extremely
unequal in their contents is properly placed in the introduction; and the
subdivisions of the science of right may be referred in detail to the external
mine and thine.

C. Methodical Division of the Science of Right.

The highest division of the system of natural right should not be as it is
frequently put into natural right and social right, but into natural right
and civil right. The first constitutes private right; the second, public right. For
it is not the social state but the civil state that is opposed to the state of
nature; for in the state of nature there may well be society of some kind,
but there is no civil society, as an institution securing the mine and thine
by public laws. It is thus that right, viewed under reference to the state of
nature, is specially called private right. The whole of the principles of right
will therefore fall to be expounded under the two subdivisions of private right
and public right.

First Part. Private Right. The System of those Laws Which Require
No External Promulgation.
I. Of the Mode of Having Anything External as Ones Own.
1. The Meaning of Mine in Right (Meum Juris).
Anything is Mine by right, or is rightfully mine, when I am so connected
with it, that if any other person should make use of it without my consent, he
would do me a lesion or injury. The subjective condition of the use of
anything is possession of it. An external thing, however as such could only be
mine, if I may assume it to be possible that I can be wronged by the use
which another might make of it when it is not actually in my possession.
Hence it would be a contradiction to have anything external as ones own,
were not the conception of possession capable of two different meanings, as
sensible possession that is perceivable by the senses, and rational
possession that is perceivable only by the intellect. By the former is to be
understood a physical possession, and by the latter, a purely juridical
possession of the same object. The description of an object as external to
me may signify either that it is merely different and distinct from me as a
subject, or that it is also a thing placed outside of me, and to be found
elsewhere in space or time. Taken in the first sense, the term possession
signifies rational possession; and, in the second sense, it must mean

empirical possession. A rational or intelligible possession, if such be possible,

is possession viewed apart from physical holding or detention (detentio).
2. Juridical Postulate of the Practical Reason.
It is possible to have any external object of my will as mine. In other
words, a maxim to this effect were it to become law that any object on
which the will can be exerted must remain objectively in itself without an
owner, as res nullius, is contrary to the principle of right. For an object of any
act of my will, is something that it would be physically within my power to
use. Now, suppose there were things that by right should absolutely not be in
our power, or, in other words, that it would be wrong or inconsistent with the
freedom of all, according to universal law, to make use of them. On this
supposition, freedom would so far be depriving itself of the use of its
voluntary activity, in thus putting useable objects out of all possibility of use.
In practical relations, this would be to annihilate them, by making them res
nullius, notwithstanding the fact act acts of will in relation to such things
would formally harmonize, in the actual use of them, with the external
freedom of all according to universal laws. Now the pure practical reason lays
down only formal laws as principles to regulate the exercise of the will; and
therefore abstracts from the matter of the act of will, as regards the other
qualities of the object, which is considered only in so far as it is an object of
the activity of the will. Hence the practical reason cannot contain, in
reference to such an object, an absolute prohibition of its use, because this
would involve a contradiction of external freedom with itself. An object of my
free will, however, is one which I have the physical capability of making
some use of at will, since its use stands in my power (in potentia). This is to
be distinguished from having the object brought under my disposal (in
postestatem meam reductum), which supposes not a capability merely, but
also a particular act of the free-will. But in order to consider something
merely as an object of my will as such, it is sufficient to be conscious that I
have it in my power. It is therefore an assumption a priori of the practical
reason to regard and treat every object within the range of my free exercise
of will as objectively a possible mine or thine. This postulate may be called
a permissive law of the practical reason, as giving us a special title which
we could not evolve out of the mere conceptions of right generally. And this
title constitutes the right to impose upon all others an obligation, not
otherwise laid upon them, to abstain from the use of certain objects of our
free choice, because we have already taken them into our possession.

Reason wills that this shall be recognised as a valid principle, and it does so
as practical reason; and it is enabled by means of this postulate a priori to
enlarge its range of activity in practice.
3. Possession and Ownership.
Any one who would assert the right to a thing as his must be in possession of
it as an object. Were he not its actual possessor or owner, he could not be
wronged or injured by the use which another might make of it without his
consent. For, should anything external to him, and in no way connected with
him by right, affect this object, it could not affect himself as a subject, nor do
him any wrong, unless he stood in a relation of ownership to it.

42. The Postulate of Public Right.

From the conditions of private right in the natural state, there arises the
postulate of public right. It may be thus expressed: In the relation of
unavoidable coexistence with others, thou shalt pass from the state of nature
into a juridical union constituted under the condition of a distributive justice.
The principle of this postulate may be unfolded analytically from the
conception of right in the external relation, contradistinguished from mere
might as violence. No one is under obligation to abstain from interfering with
the possession of others, unless they give him a reciprocal guarantee for the
observance of a similar abstention from interference with his possession. Nor
does he require to wait for proof by experience of the need of this guarantee,
in view of the antagonistic disposition of others. He is therefore under no
obligation to wait till he acquires practical prudence at his own cost; for he
can perceive in himself evidence of the natural inclination of men to play the
master over others, and to disregard the claims of the right of others, when
they feel themselves their superiors by might or fraud. And thus it is not
necessary to wait for the melancholy experience of actual hostility; the
individual is from the first entitled to exercise a rightful compulsion towards
those who already threaten him by their very nature. Quilibet praesumitur
malus, donec securitatem dederit oppositi. So long as the intention to live
and continue in this state of externally lawless freedom prevails, men may be
said to do no wrong or injustice at all to one another, even when they wage
war against each other. For what seems competent as good for the one is

equally valid for the other, as if it were so by mutual agreement. Uti partes
de jure suo disponunt, ita jus est. But generally they must be considered as
being in the highest state of wrong, as being and willing to be in a condition
which is not juridical, and in which, therefore, no one can be secured against
violence, in the possession of his own.
The distinction between what is only formally and what is also materially
wrong, and unjust, finds frequent application in the science of right. An
enemy who, on occupying a besieged fortress, instead of honourably fulfilling
the conditions of a capitulation, maltreats the garrison on marching out, or
otherwise violates the agreement, cannot complain of injury or wrong if on
another occasion the same treatment is inflicted upon themselves. But, in
fact, all such actions fundamentally involve the commission of wrong and
injustice, in the highest degree; because they take all validity away from the
conception of right, and give up everything, as it were by law itself, to
savage violence, and thus overthrow the rights of men generally.

Second Part. Public Right. The System of those Laws which Require
Public Promulgation. The Principles of Right in Civil Society.
43. Definition and Division of Public Right.
Public right embraces the whole of the laws that require to be universally
promulgated in order to produce juridical state of society. It is therefore a
system of those laws that are requisite for a people as a multitude of men
forming a nation, or for a number of nations, in their relations to each other.
Men and nations, on account of their mutual influence on one another,
require a juridical constitution uniting them under one will, in order that they
may participate in what is right. This relation of the individuals of a nation to
each other constitutes the civil union in the social state; and, viewed as a
whole in relation to its constituent members, it forms the political state
(civitas). 1. The state, as constituted by the common interest of all to live in
a juridical union, is called, in view of its form, the commonwealth or the
republic in the wider sense of the term (res publica latius sic dicta). The
principles of right in this sphere thus constitute the first department of public
right as the right of the state (jus civitatis) or national right. 2. The state,
again, viewed in relation to other peoples, is called a power (potentia),
whence arises the idea of potentates. Viewed in relation to the supposed

hereditary unity of the people composing it, the state constitutes a nation
(gens). Under the general conception of public right, in addition to the right
of the individual state, there thus arises another department of right,
constituting the right of nations (jus gentium) or international right. 3.
Further, as the surface of the earth is not unlimited in extent, but is
circumscribed into a unity, national right and international right necessarily
culminate in the idea of a universal right of mankind, which may be called
Cosmopolitical Right (jus cosmopoliticum). And national, international, and
cosmopolitical right are so interconnected, that, if any one of these three
possible forms of the juridical relation fails to embody the essential principles
that ought to regulate external freedom by law, the structure of legislation
reared by the others will also be undermined, and the whole system would at
last fall to pieces.
I. Right of the State and Constitutional Law. (Jus Civitatis).
44. Origin Of the Civil Union and Public Right.
It is not from any experience prior to the appearance of an external
authoritative legislation that we learn of the maxim of natural violence
among men and their evil tendency to engage in war with each other. Nor is
it assumed here that it is merely some particular historical condition or fact,
that makes public legislative constraint necessary; for however well-disposed
or favourable to right men may be considered to be of themselves, the
rational idea of a state of society not yet regulated by right, must be taken
as our starting-point. This idea implies that before a legal state of society can
be publicly established, individual men, nations, and states, can never be
safe against violence from each other; and this is evident from the
consideration that every one of his own will naturally does what seems good
and right in his own eyes, entirely independent of the opinion of others.
Hence, unless the institution of right is to be renounced, the first thing
incumbent on men is to accept the principle that it is necessary to leave the
state of nature, in which every one follows his own inclinations, and to form a
union of all those who cannot avoid coming into reciprocal communication,
and thus subject themselves in common to the external restraint of public
compulsory laws. Men thus enter into a civil union, in which every one has it
determined by law what shall be recognized as his; and this is secured to him
by a competent external power distinct from his own individuality. Such is the
primary obligation, on the part of all men, to enter into the relations of a civil

state of society. The natural condition of mankind need not, on this ground,
be represented as a state of absolute injustice, as if there could have been
no other relation originally among men but what was merely determined by
force. But this natural condition must be regarded, if it ever existed, as a
state of society that was void of regulation by right (status justitiae vacuus),
so that if a matter of right came to be in dispute (jus controversum), no
competent judge was found to give an authorized legal decision upon it. It is
therefore reasonable that any one should constrain another by force, to pass
from such a non-juridical state of life and enter within the jurisdiction of a
civil state of society. For, although on the basis of the ideas of right held by
individuals as such, external things may be acquired by occupancy or
contract, yet such acquisition is only provisory so long as it has not yet
obtained the sanction of a public law. Till this sanction is reached, the
condition of possession is not determined by any public distributive justice,
nor is it secured by any power exercising public right.
If men were not disposed to recognize any acquisition at all as rightful
even in a provisional way prior to entering into the civil state, this state of
society would itself be impossible. For the laws regarding the mine and thine
in the state of nature, contain formally the very same thing as they prescribe
in the civil state, when it is viewed merely according to rational conceptions:
only that in the forms of the civil state the conditions are laid down under
which the formal prescriptions of the state of nature attain realization
conformable to distributive justice. Were there, then, not even provisionally,
an external meum and tuum in the state of nature, neither would there be
any juridical duties in relation to them; and, consequently, there would be no
obligation to pass out of that state into another.
45. The Form of the State and its Three Powers.
A state (civitas) is the union of a number of men under juridical laws.
These laws, as such, are to be regarded as necessary a priori that is, as
following of themselves from the conceptions of external right generally
and not as merely established by statute. The form of the state is thus
involved in the idea of the state, viewed as it ought to be according to pure
principles of right; and this ideal form furnishes the normal criterion of every
real union that constitutes a commonwealth. Every state contains in itself
three powers, the universal united will of the people being thus personified in
a political triad. These are the legislative power, the executive power, and

the judiciary power. 1. The legislative power of the sovereignty in the state is
embodied in the person of the lawgiver; 2. the executive power is embodied
in the person of the ruler who administers the Law; and 3. the judiciary
power, embodied in the person of the judge, is the function of assigning
every one what is his own, according to the law (potestas legislatoria,
rectoria, et judiciaria). These three powers may be compared to the three
propositions in a practical syllogism: the major as the sumption laying down
the universal law of a will, the minor presenting the command applicable to
an action according to the law as the principle of the subsumption, and the
conclusion containing the sentence, or judgement of right, in the particular
case under consideration.
46. The Legislative Power and the Members of the State.
The legislative power, viewed in its rational principle, can only belong to
the united will of the people. For, as all right ought to proceed from this
power, it is necessary that its laws should be unable to do wrong to any one
whatever. Now, if any one individual determines anything in the state in
contradistinction to another, it is always possible that he may perpetrate a
wrong on that other; but this is never possible when all determine and
decree what is to be Law to themselves. Volenti non fit injuria. Hence it is
only the united and consenting will of all the people in so far as each of
them determines the same thing about all, and all determine the same thing
about each that ought to have the power of enacting law in the state. The
members of a civil society thus united for the purpose of legislation, and
thereby constituting a state, are called its citizens; and there are three
juridical attributes that inseparably belong to them by right. These are: 1.
constitutional freedom, as the right of every citizen to have to obey no other
law than that to which he has given his consent or approval; 2. civil equality,
as the right of the citizen to recognise no one as a superior among the
people in relation to himself, except in so far as such a one is as subject to
his moral power to impose obligations, as that other has power to impose
obligations upon him; and 3. political independence, as the light to owe his
existence and continuance in society not to the arbitrary will of another, but
to his own rights and powers as a member of the commonwealth, and,
consequently, the possession of a civil personality, which cannot be
represented by any other than himself.
The capability of voting by possession of the suffrage properly constitutes

the political qualification of a citizen as a member of the state. But this,

again, presupposes the independence or self-sufficiency of the individual
citizen among the people, as one who is not a mere incidental part of the
commonwealth, but a member of it acting of his own will in community with
others. The last of the three qualities involved necessarily constitutes the
distinction between active and passive citizenship; although the latter
conception appears to stand in contradiction to the definition of a citizen as
such. The following examples may serve to remove this difficulty. The
apprentice of a merchant or tradesman, a servant who is not in the employ
of the state, a minor (naturaliter vel civiliter), all women, and, generally,
every one who is compelled to maintain himself not according to his own
industry, but as it is arranged by others (the state excepted), are without
civil personality, and their existence is only, as it were, incidentally included
in the state. The woodcutter whom I employ on my estate; the smith in India
who carries his hammer, anvil, and bellows into the houses where he is
engaged to work in iron, as distinguished from the European carpenter or
smith, who can offer the independent products of his labour as wares for
public sale; the resident tutor as distinguished from the schoolmaster; the
ploughman as distinguished from the farmer and such like, illustrate the
distinction in question. In all these cases, the former members of the
contrast are distinguished from the latter by being mere subsidiaries of the
commonwealth and not active independent members of it, because they are
of necessity commanded and protected by others, and consequently possess
no political self-sufficiency in themselves. Such dependence on the will of
others and the consequent inequality are, however, not inconsistent with the
freedom and equality of the individuals as men helping to constitute the
people. Much rather is it the case that it is only under such conditions that a
people can become a state and enter into a civil constitution. But all are not
equally qualified to exercise the right of suffrage under the constitution, and
to be full citizens of the state, and not mere passive subjects under its
protection. For, although they are entitled to demand to be treated by all the
other citizens according to laws of natural freedom and equality, as passive
parts of the state, it does not follow that they ought themselves to have the
right to deal with the state as active members of it, to reorganize it, or to
take action by way of introducing certain laws. All they have a right in their
circumstances to claim may be no more than that whatever be the mode in
which the positive laws are enacted, these laws must not be contrary to the
natural laws that demand the freedom of all the people and the equality that
is conformable thereto; and it must therefore be made possible for them to
raise themselves from this passive condition in the state to the condition of

active citizenship.
47. Dignities in the State and the Original Contract.
All these three powers in the state are dignities; and, as necessarily
arising out of the idea of the state and essential generally to the foundation
of its constitution, they are to be regarded as political dignities. They imply
the relation between a universal sovereign as head of the state which
according to the laws of freedom can be none other than the people itself
united into a nation and the mass of the individuals of the nation as
subjects. The former member of the relation is the ruling power, whose
function is to govern (imperans); the latter is the ruled constituents of the
state, whose function is to obey (subditi). The act by which a people is
represented as constituting itself into a state, is termed the original contract.
This is properly only an outward mode of representing the idea by which the
rightfulness of the process of organizing the constitution may be made
conceivable. According to this representation, all and each of the people give
up their external freedom in order to receive it immediately again as
members of a commonwealth. The commonwealth is the people viewed as
united altogether into a state. And thus it is not to be said that the individual
in the state has sacrificed a part of his inborn external freedom for a
particular purpose; but he has abandoned his wild lawless freedom wholly, in
order to find all his proper freedom again entire and undiminished, but in the
form of a regulated order of dependence, that is, in a civil state regulated by
laws of right. This relation of dependence thus arises out of his own
regulative law giving will.
48. Mutual Relations and Characteristics of the Three Powers.
The three powers in the state, as regards their relations to each other, are,
therefore: (1) coordinate with one another as so many moral persons, and
the one is thus the complement of the other in the way of completing the
constitution of the state; (2) they are likewise subordinate to one another, so
that the one cannot at the same time usurp the function of the other by
whose side it moves, each having its own principle and maintaining its
authority in a particular person, but under the condition of the will of a
superior; and further, (3) by the union of both these relations, they assign
distributively to every subject in the state his own rights. Considered as to
their respective dignity, the three powers may be thus described. The will of

the sovereign legislator, in respect of what constitutes the external mine and
thine, is to be regarded as irreprehensible; the executive function of the
supreme ruler is to be regarded as irresistible; and the judicial sentence of
the supreme judge is to be regarded as irreversible, being beyond appeal.
49. Distinct Functions of the Three Powers. Autonomy of the
State
1. The executive power belongs to the governor or regent of the state,
whether it assumes the form of a moral or individual person, as the king or
prince (rex, princeps). This executive authority, as the supreme agent of the
state, appoints the magistrates, and prescribes the rules to the people, in
accordance with which individuals may acquire anything or maintain what is
their own conformably to the law, each case being brought under its
application. Regarded as a moral person, this executive authority constitutes
the government. The orders issued by the government to the people and the
magistrates, as well as to the higher ministerial administrators of the state
(gubernatio), are rescripts or decrees, and not laws; for they terminate in the
decision of particular cases, and are given forth as unchangeable. A
government acting as an executive, and at the same time laying down the
law as the legislative power, would be a despotic government, and would
have to be contradistinguished from a patriotic government. A patriotic
government, again, is to be distinguished from a paternal government
(regimen paternale) which is the most despotic government of all, the
citizens being dealt with by it as mere children. A patriotic government,
however, is one in which the state, while dealing with the subjects as if they
were members of a family, still treats them likewise as citizens, and
according to laws that recognize their independence, each individual
possessing himself and not being dependent on the absolute will of another
beside him or above him. 2. The legislative authority ought not at the same
time to be the executive or governor; for the governor, as administrator,
should stand under the authority of the law, and is bound by it under the
supreme control of the legislator. The legislative authority may therefore
deprive the governor of his power, depose him, or reform his administration,
but not punish him. This is the proper and only meaning of the common
saying in England, The King as the supreme executive power can do no
wrong. For any such application of punishment would necessarily be an act
of that very executive power to which the supreme right to compel according
to law pertains, and which would itself be thus subjected to coercion; which

is self-contradictory. 3. Further, neither the legislative power nor the

executive power ought to exercise the judicial function, but only appoint
judges as magistrates. It is the people who ought to judge themselves,
through those of the citizens who are elected by free choice as their
representatives for this purpose, and even specially for every process or
cause. For the judicial sentence is a special act of public distributive justice
performed by a judge or court as a constitutional administrator of the law, to
a subject as one of the people. Such an act is not invested inherently with
the power to determine and assign to any one what is his. Every individual
among the people being merely passive in this relation to the supreme
power, either the executive or the legislative authority might do him wrong
in their determinations in cases of dispute regarding the property of
individuals. It would not be the people themselves who thus determined, or
who pronounced the judgements of guilty or not guilty regarding their
fellow-citizens. For it is to the determination of this issue in a cause that the
court has to apply the law; and it is by means of the executive authority, that
the judge holds power to assign to every one his own. Hence it is only the
people that properly can judge in a cause although indirectly
representatives elected and deputed by themselves, as in a jury. It would
even be beneath the dignity of the sovereign head of the state to play the
judge; for this would be to put himself into a position in which it would be
possible to do wrong, and thus to subject himself to the demand for an
appeal to a still higher power (a rege male informato ad regem melius
informandum). It is by the co-operation of these three powers the
legislative, the executive, and the judicial that the state realizes its
autonomy. This autonomy consists in its organizing, forming, and maintaining
itself in accordance with the laws of freedom. In their union the welfare of
the state is realized. Salus reipublicae suprema lex. *["The health of the state
is the highest law."] By this is not to be understood merely the individual
well-being and happiness of the citizens of the state; for as Rousseau
asserts this end may perhaps be more agreeably and more desirably
attained in the state of nature, or even under a despotic government. But the
welfare of the state, as its own highest good, signifies that condition in which
the greatest harmony is attained between its constitution and the principles
of right a condition of the state which reason by a categorical imperative
makes it obligatory upon us to strive after.
III. The Universal Right of Mankind. (Jus Cosmopoliticum)

62. Nature and Conditions of Cosmopolitical Right.

The rational idea of a universal, peaceful, if not yet friendly, union of all
the nations upon the earth that may come into active relations with each
other, is a juridical principle, as distinguished from philanthropic or ethical
principles. Nature has enclosed them altogether within definite boundaries,
in virtue of the spherical form of their abode as a globus terraqueus; and the
possession of the soil upon which an inhabitant of the earth may live can
only be regarded as possession of a part of a limited whole and,
consequently, as a part to which every one has originally a right. Hence all
nations originally hold a community of the soil, but not a juridical community
of possession (communio), nor consequently of the use or proprietorship of
the soil, but only of a possible physical intercourse (commercium) by means
of it. In other words, they are placed in such thoroughgoing relations of each
to all the rest that they may claim to enter into intercourse with one another,
and they have a right to make an attempt in this direction, while a foreign
nation would not be entitled to treat them on this account as enemies. This
right, in so far as it relates to a possible union of all nations, in respect of
certain laws universally regulating their intercourse with each other, may be
called cosmopolitical right (jus cosmopoliticum). It may appear that seas
put nations out of all communion with each other. But this is not so; for by
means of commerce, seas form the happiest natural provision for their
intercourse. And the more there are of neighbouring coastlands, as in the
case of the Mediterranean Sea, this intercourse becomes the more animated.
And hence communications with such lands, especially where there are
settlements upon them connected with the mother countries giving occasion
for such communications, bring it about that evil and violence committed in
one place of our globe are felt in all. Such possible abuse cannot, however,
annul the right of man as a citizen of the world to attempt to enter into
communion with all others, and for this purpose to visit all the regions of the
earth, although this does not constitute a right of settlement upon the
territory of another people (jus incolatus), for which a special contract is
required. But the question is raised as to whether, in the case of newly
discovered countries, a people may claim the right to settle (accolatus), and
to occupy possessions in the neighbourhood of another people that has
already settled in that region; and to do this without their consent. Such a
right is indubitable, if the new settlement takes place at such a distance from
the seat of the former that neither would restrict or injure the other in the
use of their territory. But in the case of nomadic peoples, or tribes of

shepherds and hunters (such as the Hottentots, the Tungusi, and most of the
American Indians), whose support is derived from wide desert tracts, such
occupation should never take place by force, but only by contract; and any
such contract ought never to take advantage of the ignorance of the original
dwellers in regard to the cession of their lands. Yet it is commonly alleged
that such acts of violent appropriation may be justified as subserving the
general good of the world. It appears as if sufficiently justifying grounds were
furnished for them, partly by reference to the civilization of barbarous
peoples (as by a pretext of this kind even Busching tries to excuse the bloody
introduction of the Christian religion into Germany), and partly by founding
upon the necessity of purging ones own country from depraved criminals,
and the hope of their improvement or that of their posterity, in another
continent like New Holland. But all these alleged good purposes cannot wash
out the stain of injustice in the means employed to attain them. It may be
objected that, had such scrupulousness about making a beginning in
founding a legal state with force been always maintained, the whole earth
would still have been in a state of lawlessness. But such an objection would
as little annul the conditions of right in question as the pretext of the political
revolutionaries that, when a constitution has become degenerate, it belongs
to the people to transform it by force. This would amount generally to being
unjust once and for all, in order thereafter to found justice the more surely,
and to make it flourish.
Sources:
http://www.marxists.org/reference/subject/ethics/kant/morals/ch04.htm
http://plato.stanford.edu/entries/kant/

Sources:
Retrieved from the world wide web:
http://en.wikipedia.org/wiki/Common_law

Scandinavian Legal Realism

Submitted by:

Submitted to:

Romey, Clarita A.
Dakanay
Rodriguez, Merela

Atty. Rochelle

1-B Legal Philosophy

Scandinavian Legal Realism

Legal realism is a family of theories about the nature of law developed in the
first half of the 20th century in the United States (American Legal Realism)
and Scandinavia (Scandinavian Legal Realism). The essential principle of
legal realism is that all law is made by human beings and, thus, is subject to
human
shortcomings,
frailties
and
imperfections.
Scandinavian realism denotes the legal philosophy of a group of scholars
who have all been strongly influenced by Axel Hagerstrom and his critical
philosophical writings. They all agree in denying the possibility of a science
of justice or values. To them, these are pure subjective reactions or reflective
of class or political ideology and it is impossible to construct a science on
such a basis. This paradigm shift of Nordic scholarship dates back to the
time of the so-called Uppsala School of philosophy in the 1920s and is
regarded as a significant legal movement in the Scandinavian countries,
most particularly in Sweden. The relative insularity of the Scandinavian
countries, geographical isolation, immunity from international commerce
together with early national formulations of law, meant that Roman law had
little impact on their civilization. In their substantive law as well as in their
legal science, they remained outside the influence of the major legal
systems
of
the
world
The chief inspiration for Scandinavian Legal Realism many consider to be the
works of Axel Hgerstrm. The most famous representatives of
Scandinavian Legal Realism were Alf Ross, Karl Olivecrona, and A. Vilhelm
Lundstedt. Notably, Karl Llewellyn was a major figure in the debate and
teaching of legal realism while a professor at Columbia Law School. No single
set of beliefs was shared by all legal realists.
Although the beliefs of many legal realists differ, there are certain ideas that
all believe.
a. Belief in indeterminacy of the law.

Many people believe that the law written in the books does not always
determine the outcome of a legal dispute. The outcome may vary depending
on the mood of the judge, his upbringing, personal opinions. Many of the
legal realists believed that the law in the books (statutes, cases, etc.) did not
determine the results of legal disputes.
b. Belief in the importance of interdisciplinary approaches to law.
Many legal realists were interested in the sociological and anthropological
approaches to law.

c. Belief in legal instrumentalism.

Legal realists state that the law should be used as a means of maintaining
balance among different social interest and purposes. This belief, gave
reason for realist that law should be used as a tool to achieve social purposes
and
to
balance
competing
societal
interests.
Despite its decline in facial popularity, realists continue to influence a wide
spectrum of jurisprudential schools today including critical legal studies
(scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory,
critical race theory, and law and economics (scholars such as Richard Posner
and Richard Epstein at the University of Chicago). In addition, legal realism
eventually led to the recognition of political science and studies of judicial
behavior therein as a specialized discipline within the social sciences.
Philosophical Background
Hgerstrms philosophical perspective is grounded in reason and concerned
with the existence and the sources of limits of knowledge make empirical
data of the world possible which is expressed in his motto Praeterea
censeo metaphysicam esse delendam (moreover I propose that
metaphysics must be destroyed).
His anti-metaphysical view rejects the existence of a meta-physical reality or
supernatural world beyond the existence of the physical reality or natural
world. However, he is committed to a metaphysical or ontological view that
maintains the completely logical character of reality and this implies that

reality is intelligible but not in terms of a spiritual reality of ideals and values
but in terms of the physical reality of things and their necessary relations
that exist apart from the human mind. Hgerstrm is committed to the belief
of:
a. The realistic view that concepts are embedded in the facts of physical
reality.
b. The existence of actual information makes an impact upon the minds
of human beings using their senses of sight and touch to arrive at
knowledge of reality.
c. To be able to express in meaningful words in terms of concepts that
can be used to express judgments since the truth of a judgment is the
reality of the thing.
d. The philosophical task is to use a conceptual analysis in order to
determine whether words correspond to facts and thus express
concepts or rather are words devoid of meaning.
Hgerstrm calls his philosophy rational naturalism since it provides the
secure foundation for the pursuit of scientific knowledge based upon the
naturalistic approach that everything in nature is what it is. It follows that the
physical reality cannot be described and explained in mathematical concepts
but only in naturalistic or empirical concepts referring to natural properties
and their causal relations.
Morality and Moral Knowledge
Hgerstrms rational naturalism holds that the physical reality is lacking of
any values that informs his conceptual analysis that there can be no moral
reality in terms of moral concepts embedded in things and human beings.
This ontology is a version of nominalism that is related to his epistemological
view that there can be no moral knowledge. Thus he rejects the appeal to
the principle of utility or happiness as the supreme principle of morality since
moral concepts cannot be defined in non-moral concepts in terms of
empirical facts of sensations of pain and pleasure.
He also rejects Kants appeal to the will as practical reason as the
foundation for the supreme principle of morality respecting the equal
freedom and dignity of human beings as rational persons and responsible
agents since reason is confined to theoretical reason. Thus Hgerstrm
subscribes to non-cognitivism in terms of an emotive theory that moral
sentences do not express propositional attitudes of beliefs that can be true
or false but are used to express emotional and exhibited attitudes of feelings

and emotions in order to regulate human behaviour.

However, his denial of moral knowledge expressed in moral propositions
concerning what is good or bad, and right and wrong as reasons for belief
and action. It follows that there can be no moral criticism of the positive law.
But there is room for science about morality in terms of sociology and
psychology based upon a naturalistic approach that is concerned with the
description and explanation of the causal relations between the use of the
moral vocabulary and human behaviour.
Lundstedt follows Hgerstrms emotive theory and advances the method of
social welfare in terms of social aims as opposed to the method of justice in
terms of right and duties for the critique of the positive law. This meets with
critique from Ross since Lundstedts method is another version of
utilitarianism which is false, and besides it presupposes that there is moral
knowledge which Ross rejects, endorsing Hgerstrms moral skepticism.
Lundstedt retorts that his view has the support of Hgerstrm and Rosss
replies that Lundstedt is not a philosopher. The battle between them is in the
end about who is to count as leader of the Scandinavian realists. Olivecrona
follows Hgerstrm to hold that that evaluation of the law is not a scientific
matter. This is also Rosss view although he shifts his allegiance to Charles
Stevenson to support an emotive theory of ethics.
Law and Legal Knowledge
For Hgerstrm, the law is a necessary condition of organized social life within a
state. This implies that it becomes of the utmost importance that legal relations
receive a conceptual analysis based upon his rational naturalism.
1. Law stands to reason that the law is positive law made by human beings
and located within the physical reality in terms of social facts.
2. Natural law theories must be rejected as false, if not meaningless, since
they locate the law within the metaphysical or spiritual reality of ideals
and values that cannot be conceived as alongside the physical reality.
3. It is impossible to identify any unitary will behind the positive laws and
this implies that the will of the sovereign is a metaphysical idea that must
be discarded as meaningless.
4. The law cannot be conceptualized as a system of authoritative norms
concerning the rights and duties of persons but only as a system of legal
rules grounded in interests and feelings that is actually maintained by the
legal authorities in order to maintain peace and common social goals.
In this way, the positive law is located within the reality of social facts in

terms of the various forces which operate within a state to maintain the law.
This raises the question of legal knowledge, which Hgerstrm does not
explicitly address but his rejection of metaphysics implies that there is no
room for legal knowledge in terms of normative knowledge about right and
duties but there can be knowledge about the maintenance of legal rules
based upon the naturalistic approach.
Olivecrona also follows Hgerstrm but presents a more elaborate account of legal
rules in his Law as Fact where he in the second edition introduces a classification of
legal theories into voluntarism and non-voluntarism. Natural law theories and
positivist theories belong to voluntarism since both theories claim that law is the
expression of the will of the supreme authority and they only differ with
respect to locating the supreme authority in god or the state. This implies
that the usual division between legal positivism and natural law cannot be
maintained since it is false that they will lays down what is right and wrong in terms
of commands.
According to Olivecrona, a proper theory must be a non-voluntarist or realistic
theory of law that claimed legal rules must be conceptualized as independent
imperatives to be distinguished from commands since the latter are personal
relations whereas imperatives are impersonal relations between human beings. The
law is expressed in the imperative mood in terms of ideas of human behaviour and
used by the legal authorities not to communicate knowledge about these ideas but
to influence the behaviour of human beings.
In this way morality depends upon the positive law rather than the other way round,
and he rejects the idea of the validity or binding force of positive law as an idealistic
element that must be replaced with the realistic element of the efficacy of legal
rules in the minds of people. The law consists of rules about the use of force by the
legal authorities to cause the appropriate behaviour among human beings as the
effect.
In this way the law is a link in the chain of causes and effects and located as social
facts within the physical reality. This constitutes the area for legal science offering
information about the ideas expressed in legal rules and he rejects the view
advanced by O. W. Holmes and American realists that the task of legal science is to
predict how judges will decide cases, since it rather has the task to offer information
about the proper patterns of behaviour.
On Law and Justice, Scandinavian Legal realist viewed that juridical propositions
to be scientific propositions are predictions about the behaviour of judges deciding
cases. This has some similarity with American realism, and in contrast to
Olivecrona, Ross also discusses judicial reasoning to arrive at the view that judicial
reasoning is not a matter of argumentation but persuasion. This fits with his

emotive theory of ethics.

Criticism
The Scandinavians have had an important impact upon jurisprudential thinking in
the Nordic countries, but their claim that the naturalistic approach is the only
scientific approach has been criticized for neglecting the normative aspect of law as
well as reducing legal knowledge to be empirical knowledge about socialpsychological facts.

UTILITARIANISM
Hernando, Elaine LC
Grossman, Shaun
Dela Cruz, Michael Paul Bryan
Utilitarianism
Utilitarianism (Latin utilis, useful), in ethics, the doctrine that what is useful is
good, and consequently, that the ethical value of conduct is determined by the
utility of its results. The term utilitarianism is more specifically applied to the
proposition that the supreme objective of moral action is the achievement of the
greatest happiness for the greatest number. This objective is also considered the
aim of all legislation and is the ultimate criterion of all social institutions. The
utilitarian theory of ethics is generally opposed to ethical doctrines in which some
inner sense or faculty, often called the conscience, is made the absolute arbiter of
right and wrong. Utilitarianism is likewise at variance with the view that moral
distinctions depend on the will of God and that the pleasure given by an act to the
individual alone who performs it is the decisive test of good and evil.
It is a philosophical belief that law should be utilized in the most socially useful way
such as improved happiness, financial wellbeing and justice.
The movement began in the 18th and 19th centuries in Britain as a critical response
toward the common law system.
Utilitarianism Paley & Bentham
William Paley (british theologian) - utilitarianism is combined with both
individualistic hedonism and theological authoritarianism, as illustrated in his
definition of virtue as the doing [of] good to mankind, in obedience to the will of
God, and for the sake of everlasting happiness.
Jeremy Bentham (British jurist and philosopher) - employed the utilitarian theory as
a foundation, not merely of an ethical system, but also of legal and political reforms.
He maintained the necessity of sacrificing smaller interests to greater, or, at all
events, of not sacrificing greater interests to smaller, and so posited as the ethical
goal of human society the greatest happiness of the greatest number.
Utilitarianism Bentham
Bentham sought to illustrate the doctrine of utilitarianism by counterposing it to the
doctrine of asceticism on the one hand and to the theory of sympathy and antipathy
on the other.
Asceticism - the principle that pleasure should be forfeited, and pain incurred,
without expectation of any recompense.

Theory of sympathy and antipathy - he held to be based on the principle which

approves or disapproves of certain actions, not on account of their tending to
augment the happiness, nor yet on account of their tending to diminish the
happiness of the party whose interest is in question, but merely because a man
finds himself disposed to approve or disapprove of them: holding up that
approbation or disapprobation as a sufficient reason for itself, and disclaiming the
necessity of looking out for any extrinsic ground.
Bentham postulated four sanctions or sources of pain and pleasure

physical - basis of all the others

moral
religious
political

He sought further to devise a scale of pleasures and pains, rating them in terms of
their intensity, purity, duration, propinquity or remoteness, certainty, fruitfulness,
and the extent to which pleasure and pain are shared among the greatest number
of people.
Jeremy Bentham and his students John Stuart Mill and John Austin started the
utilitarian movement.
Bentham had a hedonistic theory that everything people do is motivated by the
desire for more pleasure and less pain. He criticized the common law system for
being vaguely written around rights and obligations.
He wanted to simplify this by rewriting laws of rights and obligations into a
relationship of pleasure and pain.
Utilitarian Movement
The movement tried to apply the philosophy to criminal law with the idea that
penalties are a type of government inflicted pain. They believed that the only
reason why criminals break the law is because they cannot understand the written
law of rights and obligations.
They wanted to remove confusing terms from the written law and rewrite laws in a
way that equates undesirable social acts with pain and desirable social acts with
pleasure.
Hedonistic or felicific calculus Benthams measurement system is the
desirableness of such acts are measured according to the amount of happiness it
brings to a society. Some utilitarian also believed the happiness and unhappiness of
the people toward legislation could be determined through citizen's initiated
referendums.

Greatest Happiness Principle"

Greatest Happiness Principle or the Principle of Utility - The ultimate goal of
utilitarian law is to develop the greatest amount of happiness for the greatest
amount of people.
The problem with this philosophy is that acts which are legal or illegal are
determined by the amount of happiness those acts generate for the society.

Example: the state needs to enact security legislation for the self preservation of
the state and the protection of the people, yet the new laws cause unhappy burdens
upon the people, then such security measures could not be implemented because it
conflicts with the utilitarian philosophy and so the state would be at risk of collapse.
Another similar problem is that this majority rule form of governance could cause
disadvantage and even suffering for minority groups.
Example: a racist White majority had in some American states excluded minority
groups such as Blacks and Asians from equal rights. More liberal White majority
states would be more in favor of equal rights for Blacks and Asians. So under
complete utilitarian governance, the rights of minority groups would be left to the
mercy of the majority opinion.
Classical Utilitarianism
Principle of utility a.k.a. greatest happiness principle
Jeremy Bentham believed that good and evil, could be scientifically calculated
based on the amount of pain and pleasure caused by an action. The amount of pain
and pleasure could then be compared with the number of people affected by it. So
acts, which cause the greatest amount of pleasure for the greatest number of
people would be considered good. Evil acts, would be those that cause more pain
over pleasure, for the greater number of people.
Bentham claims to have taken the concept of the greatest happiness principle from
Joseph Priestly. The closest connection to this claim is taken from, An Essay on the
First Principles of Government, written by Priestly in London in 1768. In said essay,
Priestly wrote, "...the good and happiness of the members, that is the majority of
the members of any state, is the great standard by which every thing relating to
that state must finally be determined..."
Bentham wrote in his book The Principles of Morals and Legislation:
Nature has placed mankind under the governance of two sovereign masters, pain

and pleasure. It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the one hand the standard of right and wrong, on
the other the chain of causes and effects, are fastened to their throne. They govern
us in all we do, in all we say, in all we think
Felicific calculus a.k.a. utility calculus, hedonistic calculus, hedonic calculus
Bentham formulated an algorithm to calculate whether an act was good or evil. It is
explained in chapter 4 of his book The Principles of Morals and Legislation. The
algorithm involved the measurement of 12 types of pains and 14 types of pleasures
as explained in chapter 5.
12 pains:

The
The
The
The
The
The
The
The
The
The
The
The

pains
pains
pains
pains
pains
pains
pains
pains
pains
pains
pains
pains

of privation.
of the senses.
of awkwardness
of enmity.
of an ill name.
of piety.
of benevolence.
of malevolence.
of the memory.
of the imagination.
of expectation.
dependent on association.

14 pleasures:

The
The
The
The
The
The
The
The
The
The
The
The
The
The

pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures

of sense.
of wealth.
of skill.
of amity.
of a good name.
of power.
of piety.
of benevolence.
of malevolence.
of memory.
of imagination.
of expectation.
dependent on association.
of relief.

Variables of the pains and pleasures:

Intensity: How strong is the pleasure?

Duration: How long will the pleasure last?
Certainty or uncertainty: How likely or unlikely is it that the pleasure will
occur?
Propinquity or remoteness: How soon will the pleasure occur?
Fecundity: The probability that the action will be followed by sensations of the
same kind.
Purity: The probability that it will not be followed by sensations of the
opposite kind.
Extent: How many people will be affected?

Summary of Bentham's instructions:

The subjects are the people immediately affected by the act. The value of each of
the variables for each of the types of pleasures and pains is recorded. These values
are totaled separately for pains and pleasures. Then the total values are balanced
against each other. If the majority of the subjects, had greater pleasure over pain,
then that act is considered to have caused the greatest amount of happiness for the
greatest number of people. Therefore, it is supposedly, a morally good act.

Evils of the 1st and 2nd orders

On the question of whether it would be justified to break the law based on the
measurement of pain and pleasure, Bentham considers the perspectives of those
affected. The 1st order is the more immediate consequences and the 2nd order are
the consequences to the community such as fear and panic. For example, if a
beggar steals a loaf of bread from a rich man because he was starving, with regard
to the 1st order, great pleasure has benefited the beggar with minimal pain to the
rich man. Whereas if the beggar starved, great pain would have resulted on him but
the rich man could have retained an unnoticeably immeasurable level of pleasure
by keeping the bread. But on the 2nd order, the community would feel pains such
as insecurity, because theft has occurred in their community and could likely reoccur. According to Bentham, it is because of the evil of the 2nd order, that such
actions should be prohibited.

Criticism
P.J. Kelly defended Bentham in his book, Utilitarianism and Distributive Justice:
Jeremy Bentham and the Civil Law, claiming that Bentham's Hedonistic Calculus was
designed to prevent the approval of acts, which cause a great amount of pain upon

a single person for the pleasure of a great majority. In theory, if laws are based on
the utility calculus, then people would form a general sense of individual well-being,
as a safeguard against acts such as torture upon a single person for the pleasure of
the greatest number of people.
Gerald J. Postema criticized Bentham in his book, Bentham and the Common Law
Tradition, stating, "No moral concept suffers more at Bentham's hand than the
concept of justice. There is no sustained, mature analysis of the notion..."

John Stuart Mill (1806-1807)

Utilitarianism (1861)
Mills theory of utilitarianism generally is held to differ from Benthams in Mills
introduction to quality of pleasures and pains. Mill states: It is quite compatible
with the principle of utility to recognize the fact, that some kinds of pleasure are
more desirable and more valuable than others. It would be absurd that while, in
estimating all other things, quality is considered as well as quantity, the estimation
of pleasures supposed to depend on quality alone.
Does the exaltation of pleasures and pains necessarily reduce humanity to swine?
Mill responds this way: When thus attacked, the Epicureans have always answered,
that it is not they, but their accusers, who represent human nature in a degrading
light; since the accusation supposes human beings to be capable of no pleasures
except those of which swine are capable.
Mill holds in Utilitarianism that the highest form of pleasure is sympathetic affection.
Mill believes in a powerful natural sentiment that can form basis for utilitarian
morality: This firm foundation is the social feelings of mankind; the desire to be
in unity with fellow creatures
Mills most amazing claim for utilitarianism is contained in these lines: In the
golden rule of Jesus of Nazareth, we read the complete spirit of the ethics of utility.
To do as you would be done by, and to love your neighbor as yourself, constitute the
ideal perfection of utilitarian morality.
He believes that pleasures and pains have both quality and quantity. He further
believes that the highest quality pleasure - the most intense pleasure is
sympathetic affection, loving ones neighbors. Individuals experience their greatest,
highest pleasure, according to Mill, when they help others to be happy. In this way
to love one's neighbor as oneself is not merely reconcilable with, but constitutes the
ideal perfection of utilitarian ethics.
Mill does not believe the happiest person necessarily is the one who is happiest for
the greatest period of time. He holds that one of two pleasures can have a superior

in quality so great compared to quantity as in comparison to render the latter of

small account. The quality of pleasures differs so markedly that an individual who
experiences high quality pleasures even for a short period of time can be happier
overall can have a higher quotient of happiness than an individual who
experiences lower quality pleasures for a longer period of time.
Mill holds in Utilitarianism that the utilitarian morality does recognize in human
beings the power of sacrificing their own greatest good for the good of others. If
one genuinely love's one neighbor as oneself, there is no greater pleasure than
loving others. Humans become happiest through the happiness of others.

G. W. F. Hegel (1770 1831)

Philosophy of Law (1821)
Who ought to determine the laws? He attacks the doctrine that all should
participate in the business of the state as a ridiculous notion. To permit all persons
to share in public decisions because affairs of state are the concern of all its
members is tantamount to a proposal to put a democratic element without any
rational form into the organism of the state.
According to Hegel, Society is a man-made copy of nature with its laws as necessity,
in which liberty can be found only by voluntary submission: In duty the individual
finds liberation.
When the subjective will of man submits to laws, the contradiction between Liberty
and Necessity vanishes. By contrast, the democratic tradition accepts necessity in
physical nature, but not in human relations. The reasoning of the democrats is that,
although one must accept the validity of law of gravity, one may challenge the
validity of any man-made law.
Submission to laws of physical nature but potential defiance of human controls is
the distinction democratic political philosophy carefully draws.
The physical conception of necessity is transferred from the mechanism of nature to
the organization of society. The political effects of this transfer are fundamental: Just
as we are relatively are free in nature by knowing, and voluntarily submitting t, the
laws of nature rather than uselessly trying to change them, we are free in society if
we willingly accept the laws imposed upon us.
Hegel opposes the democratic idea of the constitution as an instrument of
government, a charter and compact consciously aimed for desired ends.
The constitution, should not be regarded as something man made, even though it
has come being into time. It must be treated rather as something existent in and by

itself, as divine therefore, and constant, and so exalted above the sphere of things
that are made.
He disagrees with Bentham that the community is a fictitious body, composed of
individual persons who are considered as constituting as it were its members. To
Hegel, the community is all, and individual fulfilment is found only in and through it.
Freedom inner spiritual realization is achieved through individual conformity
within an ethical society, and an ethical society is an outward manifestation of a
free and rational, moral human being.

POLICY SCIENCE PERSPECTIVE

Reported by: Ralph Sapitula and Ysabel Ubana

SUMMARY
The policy science school of law was developed at the Yale School of
Law and 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.
OUTLINE
1.) The Yale Approach
2.) Policy Science Jurisprudence
3.) Policy Process and Problems About Values
4.) Social Value
a. Power
b. Knowledge
c. Respect

d. Income
e. Safety
f. Liberty
g. Equality
5.) Overarching Social Value
6.) Concept of Law
7.) Importance
8.) End in View

THE YALE APPROACH

Launched at Yale University; World War II
Prof. Harold D. Lasswell (1902-1974) and Prof. Myres S. McDougal
(1906-1975)
Heraclitus- the major problem of human society is to combine that
degree of liberty w/o which liberty becomes license
Calalang v. Williams- liberty is a blessing w/o which life is a misery;
Liberty to prevail over authority= Anarchy; Authority to prevail over
liberty= Slavery
SOCIAL VALUES: Direct and alternative solution + global, regional and
national tensions which affects HR= MOVE AWAY from VALUE-FREE
APPROACH of LEGAL REALISM
Peace, Order and Security= affirmation that we cannot afford war
Problem to the nature of law- relevance to the present predicament of
the world
Policy Science Jurisprudence
Policy- settled guideline, strategy/program adopted by legal order
Policy Science- discipline concerned with the (1) FORMATION; (2)
CLARIFICATION; and (3) REALIZATION of social values
Law is an instrument of SOCIAL ORDERING
Characteristics (ApOJHuRe):
1. Reaction to Apathy towards Social Value

o Universitiestraining
grounds
planners/makers and govt officials

of

Policy

o Law Courses= not respond positively to the vital

needs of present day life in a world of cumulative
crises and increasing violence
o FAILURE
TO
EDUCATION

RELATE

SOCIAL

VALUES=LEGAL

o APATHY to SV- tendency of govt to view HR as

hindrances to GP (rel. individual=govt and
individual=individual)

2.

Movement Away from Ontological Jurisprudence

o PSJ: Value-Free approach of Legal Positivism to the study
of the nature the law = DANGEROUS
o No moral principles that consciously precede the law =
need not be any moral criterion for its validity
o LP= there is nothing immoral that is legal
o Judicial Legal Realism- statutes, rules and
ordinances are no more than sources of the law
and that the law is what courts will do or likely do
= Destructive of GP and func.
o

3.

PSJ: OJ- Not help in the reduction of National, Regional

and Global tensions; incapable of solving the needs and
reqs. Of present-day systems of public order

Emphasis on Human Rights

o PSJ: movement away from Despotism towards Free
Society
o Right to: Life; Liberty; Equality; Property; Education;
Security and free-exercise of mind
o Factors that underlie POA abhorrence for the constant
abuse of HR despite their formal statements in Consti
and discourses of govt officials and private individuals
o Free election= Ceremonial plebiscites

o Freedom of Expression= Discussions dir. By a

monopoly of govt and party
o Political Party System= Leaderliolatry

4.

Movement for the Universal Recognition of Social Values

o PSJ: the law as an instrument for the achievement of the
SV w/c is the professed thrust of the law
o LAW- imperfect = Ignores SV
o How a state control its people and its resources, how it
organizes and manages its institutions of social and
legal controls, how it formulates, operates and controls
political parties, pressure groups
and private
associations, may affect vitally the practice of other
states on these matters and their willingness to provide
adequate measures of cooperation.
o Need- universal climate of peaceful and transparent
procedures where govts and their leaders operate
openly under the guidance of the basic SV
o Real state of POA- legal ordering expresses, embraces
and maintains the SV and is in harmony with the good
and happiness of all humankind

Policy Processes and Problems about Values

1. VALUE CREATION- legal order is not in a position to recognize all
human desires at the same time; some HD are better; BUT- formation
and articulation by and through structures and instruments may not
agree with each other
2. VALUE CLARIFICATION- task of reassessing the worthfulness of HD in
light of their meaning and import to society in the face of changing
experiences of the people (INTRINSIC VALUE)
3. IMPLEMENTATION- desires w/c have become SV.

Develop programs and strategies

Preparation of options/alternatives to achieve the SV

SOCIAL VALUES

 GOALS
POLICY GUIDELINES
Statute, Admin. Order, Juridical
Decision
7 Basic Social Values
1. POWER
2. KNOWLEDGE
3. RESPECT
4. INCOME
5. SAFETY AND HEALTH
6. LIBERTY
7. EQUALITY

embraces the whole of our present-day democratic preferences for

a peaceful world corresponding as they do to the actual desires of
the people

SV: instrumental in the creation, clarification and implementation of

HD

I. POWER

Power- Forms of Authority and Facts of Social Control

o Forms of Authority- dist. Of the exercise of the SV-Power in a
politically organized society
o eg. Govt (national &local); Pressure Orgs in the Community
(political, religious, professional business, civic/cultural,
unions)- free competition
o Facts of Control- True and Actual

Two-Fold Meaning:
o Capacity to secure and maintain the fundamental HR
o Competence to make decisions w/o any undue interference
from any group/ form of authority

DEMOCRACY

II. KNOWLEDGE

Aristotle- All men by nature desire Knowledge; as rational beings,

they naturally seek Knowledge/Enlightenment

One of the basic manifestations of deference to human beings is to

give full weight to the fact that they have minds.
o State- providing formal and continuing means of intellectual
development

2 Basic Purposes:
o Dispel Misunderstanding- general aspect

Widespread understanding; freedom in pursuit of

Truth (preservation of natural and primal rights)
vs. falsehood; disinformation; thought control

Right to think and private judgment

o Eradicate Ignorance- particular aspect

Emancipation of the mind through education and

instruction at all levels according to talent and ambition

Cognition and Appreciation of how democratic ways and

processes work and how they can be continued to work
better

Tendential Functions
o Public Interests- maintenance of general progress
o Cultural; Moral; Political and Economic

III.

RESPECT

Regard for life and esteem for the dignity and worth of human
personality- HUMAN BEINGS
o Human beings are respected, in the present sense of the
word, when they are taken into consideration by all with
whom they come in contact in spheres of life beyond the

making of collective decisions.

Regard for life or limb- free and unharmed possession of the

complete body

Regard for Human Personality:

o Positive- freedom from discrimination; equal opportunity;
interpersonal relations

Caunca v. Salazar- SC held that Human Dignity is not

a merchandise appropriate for commercial barter/
business bargain. Fundamental freedoms are beyond
the province of commerce/ business enterprise
Human Dignity and Freedoms are essentially spiritual.

Art. 26 of the Civil Code of the Phils.

o Negative- individual initiative , choice and determination are

restricted/ interfered with

IV.INCOME
* Importance- (includes Savings) insufficiency of Income dulls a persons
desire for other values (concern for democratic principles.
* General: denotes Freedom from Want and the Conservation of the
Natural Resources- economic betterment of people
1. Freedom from Want- Labor Unionization; CBA; freedom to sell
ones own goods/services in the best market; refusal to sell it;
higher wages; fewer work hrs; better working conditions; fair
measure of job security
2. Conservation of Natural Resources
*

Particular: Immediate Necessities and Immediate Comforts

IN- social anachronism; enjoy a happy life

IC- improvement of mode of living is a HD

Atok-Big Wedge Mining Co., Inc. v. Atok-Big Wedge

Mutual Benefit Assoc.- SC held that the min. amount actually
needed by a laborer and his family can by no means imply only
the actual min., as some margin/leeway must be provided, over
and above the min., to take care of contingencies, such as
increase of prices in commodities and increase in wants, and to

provide means for a desirable improvement in his mode of

living.
*

Min. Income= Immediate Necessities + Immediate Comforts

V. SAFETY
General Aspect: denotes freedom from fear of disease, pestilence
and hunger as well as freedom from fear of violence, disorder and war
Particular Aspect:
o Public protection
Simple Measures - such form as street lighting,
widening
and
maintenance
of
roads,
installation of traffic signs
Complex measures such form as national
constabulary forces, municipal police forces,
measures for the protection of life and property
from fire and other destructive phenomena
o public health
-It involves attitude and habits of healthful living
-Important thing here is EDUCATION IN HEALTH not
PHYSICAL EDUCATION merely.
o Social security
The measures for social security should take into
account aid for the unemployed and financial
assistance for the aged.
o peace and order
two measures taken for peace and order
first: Eradication of friction and conflict.
Second: The promulgation of specific
rules with definite incentives and/or
sanctions for the purpose of certainty in
the determination of the extent and
limits of the conduct of every person in
the community.
VI. LIBERTY
o LIBERTY is not unrestricted
o LIBERTY is manifested in the ability of a person to do things which are
essential to realize his or her conscience, opportunities and interest.
FORMS

 ACTIVE MODE legal authority, which may either be legal claim or

legal power.
PASSIVE MODE legal exemption, which
may either be a legal
immunity or legal privilege.
TENSION OR PROBLEM AREA
The social values of Liberty, Respect, and Equality form the problemarea 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.
Liberties guaranteed by the constitution, imply the existence of an
organized society maintaining public order without which liberty itself
would be lost in the excesses of unrestrained abuses.
Therefore, the BALANCE to strive for is to consider the government as
an organ committed to the protection of the social values.
PARTS
o PERSONAL LIBERTY It embodies the freedom of a person in
coming from one place to another also it deals with the security of
body from harm and injuries.
o RELIGIOUS LIBERTY - The free exercise of religious belief.
Freedom of conscience
Freedom of worship
Freedom of religion
o CIVIL LIBERTY It embraces fundamental exemptions and
immunities which have to with property, marriage, family, and
education
o POLITICAL LIBERTY It is the right of the citizens of an organized
civil society to influence and participate in the management and
operation of public affairs and political processes.
o ECONOMIC LIBERTY Means the freedom as a producer or user in
a competitive system without interference from the government
beyond regulation which are necessary to keep economy in balance
and order.
o NATIONAL LIBERTY The autonomy or the right of determining
and establishing the form of government which the people
considers the best in safeguarding its values and rights.

PARADOXES OF EFFECTIVE LIBERTY

 Contradiction in the recognition of the social value

liberty.
Despite the inclusion of liberty in constitutions and
decisions of higher courts, violations are still notoriously
frequent.
Conditions often violated: economic insecurity, moral
degradation, violence, and wars.
With the right national policies, certain conditions like
peace and order, social security and financial stability will
enable liberty to thrive.

VII.

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 (1921-)
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

EQUALITY and Balance before the Law

All individuals have a rightful and lawful expectation to the same
treatment and protection of laws without regard to persons involved.
All individual owe equal obedience to the laws.
1. SIMPLE TYPE religion or sex is irrelevant in the exercise of suffrage
2. DISTRIBUTIVE TYPE the apportionment of benefits and burdens
that can be shared among the members of society
EQUALITY and balance of Rights and Freedoms
Every human being is endowed with certain primal or original rights
and freedoms, to wit:
1. Right to life, liberty, security and property
2. Right to religion
3. Right to education and free exercise of the mind
4. Right to free expression
5. Right to peaceably to assemble for redress of grievances
These rights and freedom are not concessions of the government to
the people. They can, indeed, be asserted against the government at
any time.
EQUALITY and balance of Political Value
Every individual must count for one and only one in political
participation without regard to person.
One individuals political value must be counted no more and no less
than that of another.
Principle of one-on-one

CONCEPT OF LAW
Can truly be an instrument of global, regional and
national control when it is committed to the complete
achievement of the social values that constitute the professed
ends of democratic societies.

An advocacy of consistent, compatible and principled

policies, legislation and decisions on the basis of social values.
This means that decisions or solutions for the legal
ordering of society can be authoritative and controlling only on
the basis of the social values.

Where decisions or solutions are authoritative but not

controlling, then there is no law but only pretense, and where
decisions or solutions are controlling but not authoritative, then
there is no law but only naked power.