Legal Philosophy- Finals Page 1

CHAPTER 12
KINDS OF LAW


1. DIVINE LAW
-also known as eternal law
-the world is ruled by God and that the
whole community of the universe is
governed by Divine Reason (conception of
things is not subject to time but is
eternal)

Human reason
-an image or reflection of the
divine mind

Divine revelation
-Ten Commandments and other
laws and principles revealed by
the prophets

Theodicy
-philosophical study of God using
reason
-rational and systematic study of
religion and religious truth
-the science which treats God
through the exercise of reason
alone

Theology
-study of God through the
revelation and Holy books
-sets forth our knowledge of God
drawn from the sources of
supernatural revelation

2 types of Divine Law

a. Eternal law
-divine government of the universe
-laws in the very nature of all created
things implanted at the very moment
of their creation by God

b. Divine positive law
-laws promulgated by God through
his prophets as found in various holy
books

2. HUMAN LAW
-are creations of the secondary
governors
-conforms to eternal law
-incumbent upon the human
lawmakers to discover the
directives and purpose of the
eternal law

Aquinas Division of Human Laws
a. Civil Law
-old law for Roman citizens,
composed of statutes and customs
having the force of law
-large legislated
b. Law of Nations
-law for non-Romans
-made by judges who drew partly
from jus civile, on those rules of laws
common to all nations
-international law (concerns relations
between states which are in state of
nature in relation to one another,
since the sovereignty of the state is the
principle of its relations to other)

3. NATURAL LAW
-foundation of what is true and good
can be accessed through the aid of
human reason
-foundation s of true law which is
morality and justice, are immanent in
nature
-an unjust law is not a true law
-there is a higher law than the
constitution
-governs men in the state of nature

Principle of natural law
a. Audi alteram partem
-right of the person
concerned to be heard, or
simply due process
b. Nemo judex in causa sua
-One should not judge a
case in which he himself is
interested

4. POSITIVE LAW
-made by man
-valid in a particular state, and this
legal authority is the guiding
principle for the knowledge of right in
this positive form
-originates from human legislation
using reason
Legal Philosophy- Finals Page 2

-includes the elements of choice and
freewill, as well as the freedom to
change the law when the need
requires


5. CRIMINAL LAW
-deals with acts or omissions committed
against the community for which
penalties are imposed by the state
-defines what society deems as public
wrongs and establishes methods for their
prosecution and punishment

Legal Characteristics of a Crime
a. A law prohibits certain acts
b. A person breaks the law
c. The act is seen as harmful to
society
d. The state prosecutes the offender
in court according to the rules of
criminal procedure

Classification of Offenses
a. Economic offenses
b. Offenses against the state
c. Offenses against other people
d. Offenses against oneself

Elements:
a. Actus Reus- the guilty act (voluntary
commission or omission)
b. Mens Rea- the guilty intention
(specific desire- mental element)
c. Causation-act or omission must have
been the cause of the specific injury
complained of

*novus actus interveniens
-new intervening act must occur
before the chain of causation can be
broken

*moral condemnation
-unique feature of criminal law
not found in civil law
-expression of the communitys
hatred fear or contempt for the
convict which alone characterizes
physical hardship as punishment



6. CIVIL LAW
-relates to matters between private
individuals and institutions
-designed to regulate the peoples private
relationship
-matters regarding family, property,
inheritance or contractual relations

Civil law Criminal law
-concerned with
rights and
remedies
involving
private persons
-defines offenses
against the
community at
large

COMMON LAW AND CIVIL LAW SYSTEMS

A. COMMON LAW
-case law or judge made law
-body of legal principles evolved by
judges from custom and precedents of
previous cases
-keeps the law in harmony with the
needs of the community where no
legislation is applicable or where
legislation requires interpretations
*advantages:
-crucial or critical issues cannot
be set aside
-doctrine of precedent ensures
continuity of the law
-weight of tradition and custom is
always considered in the evolution
of the law

B. CIVIL LAW
-not based on case law, judges decisions
or customs
-based on legislated law particularly
Roman law
*advantages:
-legislature may by-pass the
passage of a law on the ground
that it is not popular
-congress may change the law any
time, and at will, with or without
regard to the prevailing custom
*disadvantages:
-a good law or policy may just be
wiped out in an instant depending
upon the mood of the incumbent
congress
Legal Philosophy- Finals Page 3

Role of the Judge in Common and Civil law
Systems

A. Adversarial System
-judge is an umpire, detached and
mostly uninvolved
-judge maintains an air of impartiality
and objectivity at all times
-commonly used in countries with
common law system

B. Inquisitorial System
-judge is an inquirer
-judge conducts inquiries in several
stages, and court procedure tends to be
informal
-judge acts as a mediator between the
parties with the aim of bringing them to
settlement
-commonly used in civil law countries

*Note: the Philippines is a civil law
country which adopted the adversarial
procedure.

CHAPTER 13
LEGAL PHILOSOPHY SCHOOLS OF THOUGHT

NATURAL LAW THEORY
-the essence of law is morality and
justice
-what is good and fair can be found
within nature itself
-there are rational and objective limits to
the power of the legislative to enact laws
(set by morality and justice)

A. Ius Naturale
-natural right or natural justice
-believes in the equality before the
law; person is entitled to be heard
(hearing rule); and a dispute must be
decided by an impartial judge (rule
against bias)

B. Overlap Thesis
-notion that law and morality
intersect
-natural law was created at the same
time man was created and that no
human law is valid unless it conforms
to natural law

CHAPTER 14
LEGAL PHILOSOPHY SCHOOLS OF THOUGHT

LEGAL POSITIVISM
-classical legal thought
-opposite of natural law theory and
regards laws validity in terms of social
convention i.e. law as posited by the
society and not by the ideas of morality
or notions of justice
-law is law when it is backed by the
coercive power of the state
-adheres to the political criterion test

*law and politics - interplay and share
commonalities: law is a political tool

*Legal decisions - are political that some
degree of control is required

*authority participation in making
decisions in accordance with community
perspectives

*control effective participation in the
making and enforcing of decision

A. Separability Thesis
-there is no necessary connection
between law and ethics
-morality is neither an element
nor component of law

B. Is-ought Fallacy
-law is law even it is immoral
-legal requirement is what makes
a true law and should not be
confused with its moral
requirement
-law as it is should be
distinguished from law as it
should be
-proposition that a law is valid is
not the same as one ought to
obey it

Austins Command Theory of Law
-laws are commands from a sovereign
backed by threat of punishment
-in order to interpret a legal system, one
must first identify a sovereign whose
commands are habitually obeyed

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Harts Rule of Recognition
-subjects or citizens voluntarily obey the
laws of the land because they accept as
valid the rule making institution

Dworkins Theory of Adjudication
-judges can avail of other standards or
principles in resolving conflicts
-law is a seamless system
-if judges cannot find applicable legal
rules, they can turn to principles or
other legal standards for answers inside
the seamless web of law

*rules an all or nothing choice, either
applies to a case or not; once an
applicable rule is found, it will determine
the outcome of the dispute

*principles represents various norms
and values of the society; makeup the
communitys moral fabric; judge is free
to search for answers in other standards
and societal principles

Soft Positivism (Incorporationism)
-a law may still be considered law
even if society puts in additional
criteria
-the twos relationship are merely
incidental, which means that they
may still be separated because
morality is not innate component of
what law is

Hard Positivism (Exclusive)
-denies that a legal system can
incorporate moral constraints to
make a law legal
-laws validity does not depend on
moral arguments but can always be
traced back to its source, such as the
legitimacy of its promulgators

*Source Thesis
-to see if a law is valid, one may
just check if it comes from a valid
congress and its interpretation comes
from a legitimate judicial agency





CHAPTER 15
LEGAL PHILOSOPHY SCHOOLS OF THOUGHT

LEGAL REALISM
-law is indeterminate
-laws as found in codes and
jurisprudence does not always determine
the outcome of a case, it may be
determined by what the judge ate for
breakfast
-acknowledges that judges must
construct the law, and thus guide legal
jurisprudence
-the law is what judges or administrative
officers so decide

*judicial legislation the latitude of
judges to interpret laws gives them the
power to define, even create the law
-the inherent lawmaking aspect of
the decision maker is one of necessity
and not one of a choice
-judicial discretion is given to the
court under Art. 9 of the Civil Code: the
legislator recognizes that in certain
instances the court do and must
legislate to fill in the gaps of law

Legal Instrumentalism
-laws and principles and ideas are tools
or instruments in resolving the puzzles of life
in order to create possibilities for human
experience
-looks at law beyond the text or
legislative intent

Discretion Thesis
-a view in legal realism that judges
unwittingly make new law in deciding
disputes in the sense that a judge is often
influenced by his potential, religious or moral
convictions and not strictly by legal
considerations

Prediction Theory of Law
-law is nothing but the prediction of how
the courts should behave; prophecies of what
the courts will do in fact and noting more
pretentious



Legal Philosophy- Finals Page 5


CHAPTER 16
LEGAL PHILOSOPHY SCHOOLS OF THOUGHT

LEGAL FORMALISM
-a system that stresses on form as the
ultimate ground for explanation any
case or phenomena

-law is a set of rules and principles
independent of other political and social
institutions

Interpreting a law roughly falls
into three types:
a. According to lawmakers intent
b. According to recipients
understanding
c. According to some other factor
such as promoting a particular
culture, policy or ideology

Intentionalism
-interprets the law according to the
lawmakers intent
-doctrine of original understanding

*originalism
a. original intent theory laws
interpretation should be
consistent with the meaning
held by the people who drafted
it

b. original meaning theory
interpretation should be based
on what the ordinary and
reasonable people living at the
time the law was written would
have understood them

Reynato Cayetano vs Christian Monsod, G.R.
No. 100113, Sept. 1991

FACTS: Monsod after passing the bar, worked in his
fathers firm for one year, then worked as an
operations officer in the World Bank Group. He also
worked with the Meralco Group upon his return to
the Philippines, and then became chief executive
officer of an investment bank, legal and economic
consultant of various companies, National
Chairman of NAMFREL, member of the 1986
Constitutional Commission, and then became a
member of the Davide Commission.


Textualism
-interprets the law according to the
readers understanding
-focuses on what the text would
reasonably understood to mean, rather than
upon what it was intended to mean

CHAPTER 17
VARIOUS MORAL APPROACHES

RELATIVISM
-the view that there are no absolute or
standard criteria of morality; that what
counts as ethical depends upon how a
society or historical period defines
something as ethical

-different cultures have different
concepts about what ought to be right
behaviors for its members

CHAPTER 18
VARIOUS MORAL APPROACHES

UTILITARIANISM
-greatest happiness theory
- one must act so as to promote the
greatest happiness or pleasure to the
greatest number of people
-an act is good if it contributes to overall
utility

A. Act Utilitarianism
-acts that produce the greatest good
for the greatest number
-rules or laws may be abandoned in
those instances where following them
would not produce the greatest good
for the greatest number (rule is to be
Interpreted in the light of the various
definitions of the term practice of law, particularly
the modern concept of law practice, and taking into
consideration the liberal construction intended by
the framers of the Constitution, Atty. Monsods past
work experiences as a lawyer-economist, a lawyer-
manager, lawyer-entrepreneur of industry, a lawyer
negotiator of contracts, and a lawyer-legislator
verily more than satisfy the constitutional
requirement that he has been engaged in the
practice of law for at least 10 years.

Legal Philosophy- Finals Page 6

disregarded if it clearly conflicts with
the general welfare)
B. Rule Utilitarianism
-adopt the rules that will produce
the greatest good (or happiness)
for the greatest number

CHAPTER 19
SOCIOLOGY OF LAW

FUNCTIONS OF LAW

A. SOCIAL CONTROL
-usually done through the threat of
punishment and seldom based on
reward; disobedience can have severe
repercussions thus one is motivated to
obey

It may be done through:
1. Internalization of group norms;
and
2. External and more formal
pressures.

B. DISPUTE RESOLUTION
-law traditionally resolves the more
serious disputes of the society, less
serious conflicts are settled through
negotiation, fist-fight or avoidance
-i.e. Katarungang Pambarangay Law,
Court-Annexed Mediation, etc.

C. SOCIAL CHANGE
-laws have far-reaching effects to society
-i.e. local ordinances prohibiting
smoking in public vehicles and building
had reduced incidence of second-hand
smoking

CHAPTER 20
SOCIOLOGY OF LAW

SOCIAL THEORIES OF LAW

A. EUGEN EHRLICH (1862-1922)
-believed that positive law which looks at
law as the sum of statutes and court
pronouncements could not adequately
capture the legal reality of a culture or
society


*legal norms
- strictly legalistic

*social norms
- governs day to day conduct
- permeate deeper in the fabric
and consciousness of the society,
hence must be regarded as a
component of law
- living law that regulates social
relationships and help strengthen
society

B. EMILE DURKHEIM (1858-917)
-looks at law as a tool for integration
-a society progresses from simple to
complex the role of law changes

*Theory of Legal Change
-from repressive laws to restitutive
laws

a. repressive laws of small, close-
knit, highly religious and
traditional societies where a small
infraction of the rules is met with
severe repercussions
-used to evoke fear, and
consequently obedience from
members

b. restitutive allows violators to
make amends for damage, and
reintegration to the mainstream
-violators are not
stigmatized for life but are rather
recycled back to society


C. MAX WEBBER (1864-1920)
-pre-industrial laws are personalistic and
partial to privileged sectors
-laws are not usually applied equally and
fairly; a legal double standard seem to
exist in the implementation of the law
such that the influential few often get
away with or get around the law

D. TALCOTT PARSONS (1902-1979)
-laws role in the society is to be that
integrativist mechanism of social control

Legal Philosophy- Finals Page 7

E. NEO MARXIST VIEWS OF LAW
(1960S)
-law as a tool for power, serving the rich
and the powerful rather than used for
the delivery of justice to citizens

CHAPTER 21
SOCIOLOGY OF LAW

THEORIES WHY LAW CAME INTO BEING

A. CONSENSUS THEORY
-agreement (consensus) among members
of the society in transforming their
norms and values into laws, giving the
former more strength and general
enforcement
-society as an expression of its own
values and norms developed and
institutionalized in time by its members

B. CONFLICT THEORY
-emphasizes interests and how these
interests interact to form conflicts
which are but normal facts of societal life
-coercion rather than consensus cause
social order
-law serves as the powerful over the
weak and that law used by the
stateto promote and protect itself

CHAPTER 21
TYPES OF JUSTICE

1. UTILITARIAN JUSTICE
-looks at law or an acts ability to
maximize benefit for society
-moral worth of an action is determined
by its outcome

2. RETRIBUTIVE JUSTICE
-aims to avenge the wrong done to
society
-it seeks to enact rules which avenge
crimes proportional to their gravity
3. RESTORATIVE JUSTICE
-concerned with making the victim whole
and reintegrating the offender back to
society


4. DISTRIBUTIVE JUSTICE
-concerns with the fairness,
proportionality, or equality in the
distribution of things i.e. money,
property, privileges, opportunities,
education or rights

Aristotle: the basis of distribution of
rewards should be virtue i.e. ones
intrinsic worth and natural merit (each
must enjoy the fruits of his own labor)
a. Strict Egalitarianism
-believes in radical equality i.e. all
should have the same level of goods
and services
-all persons need be treated non-
discriminately regardless of race,
religion, sex, etc.
-strict equality in the allocation of
resources

b. The Difference Principle
-allows inequality in the distribution
of goods only if the inequality will
benefit the worst-off members of
society
-permits inequalities of wealth and
income if those inequalities benefit
the worst-off group in society

c. Desert-Based Principle
-focuses on merit or effort or some
other quality as the basis for desert

d. Libertarianism
-equal liberty principle
-each individual should have an
equal right to basic liberties (or
autonomy)
-distribution of wealth and income
flows from the free choices made by
individuals, what matters is whether
the transactions or transfers are
themselves just
-rejects the idea of distributive justice
as applied to the distribution of
wealth but tends to be strict
egalitarian as for the distribution of
basic liberty rights

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