000 Legal Theory Reviewer B2014 Professor Sison-Annotated

Legal Theory Reviewer B2014
Professor Sison
Head: Jen Domino
Members: RJ Gutierrez, Ofelia Leao
Table of Contents
I.
II.
III.
IV.
V.
Introduction
a. Abstract__________________________________________________________________________________________________________________3
b. The New Encyclopaedia Britanica, Western Philosophy of Law_______________________________________________________________________3
c. Fernando, The Relevance of Philosophy to Law___________________________________________________________________________________4
d. Adler, The Four Dimensions of Philosophy_______________________________________________________________________________________4
e. Soper, Making Sense of Jurisprudence___________________________________________________________________________________________4
f. Hart, Persistent Questions____________________________________________________________________________________________________5
g. Lloyd, Preface and Conceptual Thinking in Law____________________________________________________________________________________5
The Nature of Law
a. Abstract___________________________________________________________________________________________________________________6
b. Fernandez, Philosophy and Law________________________________________________________________________________________________6
c. Wolheim, The Nature of Law__________________________________________________________________________________________________7
d. Lloyd, Is Law Necessary?_____________________________________________________________________________________________________7
e. Lloyd, Law and Force________________________________________________________________________________________________________7
f. Lloyd, Law and Freedom______________________________________________________________________________________________________8
g. Lloyd, Law and Custom_______________________________________________________________________________________________________9
Natural Law
a. Abstract___________________________________________________________________________________________________________________9
b. Classical Natural Law________________________________________________________________________________________________________9
c. Modern Natural Law________________________________________________________________________________________________________12
d. Law and Morals___________________________________________________________________________________________________________13
e. Law and Justice____________________________________________________________________________________________________________14
Legal Positivism
a. Abstract_________________________________________________________________________________________________________________16
b. Lloyd, Legal Positivism______________________________________________________________________________________________________17
c. Austins Concept___________________________________________________________________________________________________________17
d. Murphy and Coleman, The Nature of Law_______________________________________________________________________________________17
e. Harts Concept____________________________________________________________________________________________________________18
f. Hart, Law as the Union of Primary and Secondary Rules____________________________________________________________________________18
g. Hart, The Foundations of a Legal System________________________________________________________________________________________20
Critique of Legal Positivism and Natural Law
a. Dworkin, Is law a System of Rules?____________________________________________________________________________________________20
Domino, Gutierrez, Leao 1
VI.
Sociological Jurisprudence
a. Abstract_________________________________________________________________________________________________________________20
b. Lloyd, Law and Society______________________________________________________________________________________________________21
c. Legal Realism_____________________________________________________________________________________________________________21
d. Llewelyn, The Bramble Bush_________________________________________________________________________________________________22
e. Law from the Policy perspective______________________________________________________________________________________________22
f. Reisman, A Theory of Law from the Policy Perspective_____________________________________________________________________________22
I.
Introduction
a. Subject Matter
i. Abstract
The question that legal theory seeks to answer is, how do we know
that what we are studying is law? It is, however, impossible to raise such an
inquiry without certain assumptions. The subject matter, as a starting point,
assumes that: (1) Law is part of reality; and (2) we, human beings, have the
capacity to know what this reality is. Hence, the goal of this subject matter is to
show: (1) the process of how human beings know of reality (Theory of
Cognition); and (2) what is this reality called law as different from non-law
(Definition of law, i.e., law devoid of its non-essential characteristics).
These goals, the Theory of Cognition and Definition of Law, shall be the
subject of succeeding sections of this reviewer. But before that, let us first
proceed with some preliminaries on the subject. The purpose of this
introduction is to provide a backdrop of what one will eventually learn on detail
on the next succeeding subdivisions of this reviewer.
This introduction has two parts: (1) Legal theory in general; and (2)
important points and notes on some of the articles discussed in class. For the
first part, one will be introduced to the subject matter from a macro
perspective. Its definition, its different names, its purpose, and the main
schools of thought (a subject that will be discussed in greater detail in later
sections). For the second part, one will be given some pointers on what they
ought to remember from each of the important articles discussed in class. The
technique employed to supply this is based not on the article presents itself,
but on how the professor has made sense out of it. Hence, the second part is
merely a reiteration of what the professor said in class, but in a more
systematic and formal manner.
ii. In General
Law in the Abstract concerned with the essential characteristics of Law.
Different names of the Subject Matter:
1. Jurisprudence
2. Legal Philosophy or Philosophy of Law
3. Law in the Abstract
4. Legal Theory
law and material law, and their impact on law as an instrument of procedural
and substantive justice (UP College of Law Student Manual).
Legal Theory is for the refinement of our mind (Sison 2011).
The Main Schools of Jurisprudential Thought
1. Natural Law (Revealed by the Divine; discoverable by Reason)
a. Classical Natural Law (Stoics St. Thomas Aquinas)
b. Modern Natural Law (Natural Rights Theorists: Hobbes and beyond)
2. Legal Positivism (Positum - laid down by human beings)
a. Imperative Theory of Law (John Austin)
b. Rule Theory of Law (H. L. A. Hart)
c. Pure Theory of Law (Hans Kelsen)
d. Sociological Jurisprudence
i. Legal Realism (John Chip Gray, Roscoe Pound, Karl Llewelyn,
Oliver Wendell Holmes, etc.)
ii. Law from the Policy Perspective (W. M. Reisman, Harold
Lasswell, A. Scrieber)
e. Principle Theory of Law (Ronald Dworkin)
iii. Important Points and Notes on the Articles
1. The New Encyclopedia Britannica
Philosophy of law is concerned with the formulation of concepts and
theories to aid in understanding the nature of law, the sources of its authority,
and its role in society.
Three Major Subdivisions of Philosophy of Law
1. Analytical Jurisprudence concerned with articulating axioms, defining
terms, and prescribing methods that best enable one to view the legal order as
a self-consistent system and that maximize awareness of its logical structure.
2. Sociological Jurisprudence concerned with the actual effects of the law
upon the complex attitudes, behavior, organization, environment, skills, and
powers involved in the maintenance of a particular society.
3. Theory of Justice concerned with the evaluation and criticism of law in
terms of the ideals or goals postulated for it.
Note:
Legal Theory (Law 117) The main schools of jurisprudential thought, with
emphasis on the philosophical influences on the varying conceptions of ideal
The professor discussed that these three schools of law correspond to

the major schools of jurisprudential thought, where, Theory of Justice refers to
Natural Law, Analytical Jurisprudence refers to Legal Positivism, and

Sociological Jurisprudence refers to Legal Realism.
2.
Fernandos The Relevance of Philosophy

to Law
The law is not a self-contained system.
Philosophy is a meta-discipline of looking at law from above. It

serves to clarify matters that law cannot answer for itself.
Professor Fernando viewed philosophy as a method of conceptual

analysis and rational justification. As a method of conceptual analysis,
it engages in the logical clarification of concepts. It abstracts the
essential characteristics of law and differentiates law from non-law.
This method not only serves the negative and therapeutic of
philosophy which is avoiding linguistic confusion, but also philosophys
positive and constructive purpose of making clearer sense of the world
and reality.
a. Metaphysical questions about being; existence of God; and the

possible; human mind; human nature; etc.
b. Moral questions about moral obligation in relation to justice,
liberty, equality, democracy, socialism.
2. Second order knowledge
a. Understanding of ideas as objects of thought
b. Understanding of subjects different branches of knowledge, the
arts, and other learned professions.
Tests of Truth:
1. Pragmatic experience as basis; successful outcome as the test.
2. Generalization theory of falsification (e.g., to know the truth/falsity of the
statement, if all crows are black, one must only look for a different colored
crow)
3. Logical Premises -> Conclusion
4. Coherence test: consistency with the system or the coherence with the
whole.
Note:
As a method of rational justification (similar to the method of logic),

philosophy is seen as a skill or an activity engaged in reasoning; but
rational justification is used mainly on normative issues such as law. It
is a method whereby one provides reasons for ones conclusion.
Note:
The professor focused on the idea that law is not a self-contained
system and that it requires the aid of philosophy in order to be understood.
This relationship between law and philosophy will also be discussed later in the
article of Professor Perfecto Fernandez on Philosophy and Law.
The professor also emphasized on the process of abstraction. He said
that abstraction requires both the aid of logic (genus et differentia definition)
and psychology (Theory of Cognition). Abstraction is of a second order
knowledge, where the goal is to conceptualize reality by defining it. In our
case, to abstract law is to conceptualize it and to remove all its non-essential
characteristics.
3.
4 Dimensions of Philosophy:
1. First order knowledge
Adlers The
Philosophy
Four
Dimensions
of
The professor did not really delve into this article. It is, however,
advantageous for the reviewee to know the difference between first order and
second order knowledge in order to make sense of the Note on Abstraction
in The Relevance of Philosophy section.
As regards the Tests of Truth, the professor only mentions three: (1)
Correspondence (if the statement corresponds to reality); (2) coherence (if the
statement is consistent with the system); and (3) pragmatic (that which works).
4. Sopers Making Sense of Jurisprudence
Two dimensions of Legal Theory:
1. As to audience
a. Outsider is concerned with distinguishing law from other systems
of social control and seeks to characterize and distinguish among legal
systems. This refers to knowledge of the world by describing and
understanding phenomena.
b. Insider is actively engaged in the practice of law who wants to
identify, apply, or get advice about legal norms. He has practical
concerns and wishes to know the consequences of his conduct.
2. As to the goal of the study (motivation for undertaking legal theory)
a. Outsider to know the difference between legal systems and other
systems of control.
The professor summarized this article by saying that: (1) Outsiders

study law, i.e., undertake legal theory, for knowledges sake; (2) Insiders study
law for obediences sake.
Law resembles a kind of a game in that any such game employs a

number of general concepts, or notions which are conventional in the
sense that their meaning and function are arbitrarily defined by the
rules of the game, but which can operate meaningfully within their
particular linguistic framework.
5. Harts Persistent Questions

Diseases of language: ambiguity and vagueness. This is more manifest
when the words used are couched in general terms.
The scope of law entails a vastly more complex system than that of
any game, having regard to its ramifications over the whole social life
of the community.
Borderline cases are cases where no legal provision can be applied; or

where there is an applicable legal provision but it can have two or
more inconsistent interpretations.
Also, law develops and changes in a constant process of flux whether

by new legislation or by the gradual adaptation of customary judicial
or administrative rules.
Many fundamental legal concepts are legal creations with vitality of

their own.
b. Insider to know the consequences of his conduct; what one ought

to do.
Note:
There exist persistent questions in jurisprudence because of the

existence of these two the diseases of language and borderline
cases.
Three recurrent issues: (1) How does law differ from and how is it
related to orders backed by threats? (2) How does legal obligation
differ from, and how is it related to, moral obligation? (3) What are
rules and to what extent is law an affair of rules?
Definitions (in logic, i.e., genus et differentia) no longer suffice

(inadequate), the goal is to explain.
Dangers of Rigid Conceptualism:

When lawyers have breathed meaning and purpose into their legal
concepts and found these to be good, these concepts tend to develop a life
of their own which may carry them on into many and unexpected paths by
their own vitality and by what are felt to be the laws of their own inherent
logic. Once these concepts are crystallized within a legal system, the courts
may decide new cases on what they conceive to be the logical nature and
requirements of particular legal concepts. This results in an undue rigidity
and inability to adapt to new social situations.
Notes:
Note:
The professor noted that because language is both open-textured (one
cannot know which is in there and which is not) and open-ended (one cannot
ascertain the extent of word), law, as a product of language, becomes difficult
to understand. This is the reason why Hart said that definitions no longer
suffice. The law, as an object of reality, can no longer be subject to a mere
definition. The goal, according to Hart, is to explain law. And this has been the
mode employed by theorists starting from early legal positivist, like Austin.
As for borderline cases, the techniques for solving it will be further
discussed in the subsequent sections, particularly on the discussion of Dworkin.
6.
Lloyds Conceptual Thinking in Law
The professor summarized this article by stating that law can be

considered as a game with rules for the use of words. The concept, as denoted
by words, is a product of definition. Concepts are used to create propositions.
These propositions are then used as premises to arrive at various conclusions.
The whole process from defining the concept to arriving at a conclusion is
called reasoning.
It is the rules that set the directions of the game. It is a list of to do
or not to do. The rules also provide for consequences in case of breach.
These rules are the ones that make ones action meaningful (as in a game of
chess or basketball).
b. Theory of Cognition (*REFER TO THE DIAGRAM)
Notes:
Abstraction the process by which essential characteristics are derived from
particular objects of reality.
between laws and customs lead to the conclusion that the substantial
difference between the two is the lack of machinery on the enforcement of the
primitive customs.
Two ways to define a word (as per Betrand Russell)

1. By pointing, i.e., ostensive definition.
2. By looking at the dictionary, i.e., lexical definition.
1. Perfecto Fernandez Philosophy and Law

Philosophy and Law:
First Question: Is coercion an essential element of law?
No, because we recognize the existence of directory laws, which are
laws that may or may not be obeyed. This does not mean, however, that ALL
laws should have no mandatory force; otherwise, problems relating to order
may arise. In fact, the very concept of law entails resort to physical power.
Two kinds of knowledge

1. Sense-knowledge, i.e., apprehension (particular objects)
2. Intellectual knowledge, i.e., abstraction (concepts)
Moderate Realist Theory of Epistemology: A Model
Mind -> Will -> Action -> Conduct -> Habit -> Convention -> Customs
II.
Nature of Law
a. In General
i. Abstract
After the preliminaries, we will now proceed to the discussion of some
elements of law. The goal in this section is to ascertain whether or not such
elements are essential in the understanding of what law is.
Before proceeding with this analysis, however, we will first look into
some of the criteria of knowing whether an element of law is essential or not.
As a guide, we will use the standards put forth in the articles of Professor
Perfecto Fernandez on Philosophy and Law and Professor Richard Wollheim
on The Nature of Law.
Afterwards, we will examine whether the law is necessary, and how
the law is related to force, freedom, and customs.
It bears remarking that regarding the necessity of law, the nature of
man is examined together with its impact with the conception of law. It is
argued that whether mans nature is good or bad, law will still be necessary.
Although there are contentions that the law infringes upon the actions of those
subjected to it. There is also the relationship of law and force, and freedom and
customs.
As regards the relationship between law and force, although it is
argued that it is not necessary to coerce people to obey the laws, coercion may
still be an indispensable part of an effective system of law.
However, there are still certain fundamental principles or freedom
that cannot be unreasonably infringed. Lastly, similarities and differences
Second Question: What is the nature of law?

To answer this, there must first be an examination of the two kinds of
statements: (1) Empirical, which are statements of facts (descriptive); and (2)
Normative, which are statements that prescribe what ought to be done or what
not to be done by human beings (prescriptive).
By its very language, law is seen as normative. Being normative in
character, it cannot be validated by science. So, Fernandez suggests that law
can be gauged by using a criterion of validity. For Fernandez, this criterion is
that of the legal system.
The test then is: Does the law pass the test imposed by the legal
system in order for it (the law) to be valid? Hence, the test is dependent on a
particular legal system. If the law satisfies this criterion of recognition, it
becomes a rule of law.
Is moral validity required for legal validity?
Fernandez says no. Morality is different from person to person. This
subjectivity would destroy the certainty and objectivity of the criterion used. It
will pose problems relating to obedience among the populace. If, for example,
the law is contrary to ones belief or morality, which of the two should the
person obey? Fernandez says that a person should not be justified in
disobeying the law because such law is not in accordance with his beliefs.
Third Question: what is the end of law?
The end of law is to provide social conditions of security and liberty
essential to human achievement.
Notes:
Contributions of Philosophy to Law:
1. Nature of Law place of law in the general schema of knowledge

2. Criterion of Law basis for declaring something law
3. The Philosophical Question, Is an Unjust Law, Law?
Fernandez sees Law as a Legal System or a set of Legal Propositions which are
statements composed of legal concepts.
Humes formulation (and the tests of validity as per Sison):
1. Normative statements validity based on criteria (legal theory or moral
theory, e.g., Austins imperative theory of law or Benthams utilitarian theory of
morality)
2. Descriptive statements validity based on the principle of verifiability, i.e., if
the statement corresponds to reality.
Two Views on the Nature of Man

1) Evil no social progress could be attained without the restraints of
penal law; Law is an indispensable restraint upon the forces of evil
2) Good due to sin, corruption, etc., mans original and true nature
become distorted and this required for its control the rigors of the
punitive system of law; Those who view man as inherently good seek
to find the sources of the ills of mans present condition in situations
external to man himself - criticism to the government and the legal
system through which they exert their political authority
c.
Lloyds Law and Force
Is Force an Essential Characteristic of Law?

2. Wolheims The Nature of Law
What is the nature of law? This question can be answered in three ways:
1. By giving a synonym
2. By giving a definition
3. By giving a general characterization
DANGER: the essence of the word might be forgotten because we use our
personal association to the word.
Whether or not a law should be considered law depends upon each legal
system. If it has through the criterion of validity that a legal system has
imposed, the law should be considered a law.
But judges sometimes insert their moral judgments in a case. Of course, in
arriving at a conclusion, the judge may base his argument in moral and
conscientious considerations. This is valid UNLESS the decision is patently
contrary to the law. If the judge lays down moral reasons, it is because the law
allows him to (the criterion of validity). The decision even though grounded on
moral considerations becomes legal.
b. Lloyds Is Law Necessary?
Law
ideological in character
Ideological forms part of our outlook upon the world, upon the relation
of man to the world and to society and all its manifestations
Authority: Some person is entitled to require the obedience of others

regardless of whether those persons are prepared to find the particular order
or rule enjoined upon them as acceptable or desirable or not.
There is a very definite connection between the idea of legitimate authority,
which has to be obeyed because of its very legitimacy, and moral obligation,
which imposes a rule which calls for voluntary adherence by virtue of its
intrinsic rightness. The notion of authority which is acknowledged as legitimate
derives much of its strength from its link with moral obligation.
Charisma (Max Weber): from the Greek word charisma meaning grace.
Refer to that peculiar form of personal ascendancy which an individual may
acquire in a particular society, and which confers an indisputable aura of
legitimacy over all his acts.
It is argued that people obey the law not because they are constrained to do so
by force but because they consent or at least acquiesce in its operation and it is
this consent rather than any threat or force which causes the legal system to
work. The idea of the democratic societies is that universal suffrage and
majority rule is the means by which the individual from time to time manifest
his adhesion to the government. This mode of thought is seeking to achieve is
not to eliminate force in the legal process, but rather to remove the emphasis
from coercive subordination to voluntary consent or acquiesce.
Traditional Domination vs. Legal Domination
Traditional
While charisma may create authority by the sheer personal ascendancy of a
new leader and thought there may be a natural tendency for this extinguished
on his death it by no means follows that such charisma will attach to his person
alone, it may pass to his successors
Legal
Under this system, legitimate domination has become impersonal and legalistic
so that the institutional character of authority has largely if not wholly
displaced the personal one.
Law and Coercion
In less developed societies, coercion tends to take form not of the centralized
forces but rather of each man helping himself with the aid of his kinsfolk. Even
on the level of national law, the law is obliged to apply legal coercion to whole
groups as well as individuals.
Freud:
insisted on the necessary connection between civilized society and coercive
social order. This is because of his belief on the existence of mans aggressive
urges that can be repressed but not eliminated.
It has been a characteristic of developed state law that as the use of force has
become more closely regulated and more efficiently brought to bear upon the
recalcitrant it has been pushed further and further in the background.
Though coercion may be an indispensable part of an effective system of law,
there seems to be no reason why we should insist that this necessarily entails
annexing penal consequences to every individual rule comprised in the legal
system.
d. Lloyds Law and Freedom
Types of Society:
1) Open there is a wide field left for personal decision and for the
assuming of individual responsibility
2)
Close there is almost tribal or collectivist pattern; community is

completely dominant.
Types of Freedom:
1) Positive in the nature of spiritual conception, implying as it does
some kind of maximum opportunity for the self-realization of every
individual to his full capacity as a human being
2) Negative concerned with so organizing the pattern of the society,
that despite all the restraints and limitations that are placed upon
individual action for the benefit of society as a whole, there
nevertheless remains as a large sphere for individual choice and
initiative as is compatible with the public welfare
Law is said to bind those subject to it. But not all freedom is necessarily good.
The word covers a vicious license as well as true liberty. The purpose of the law
is to eliminate the first and promote the second.
The only reason why it is good for a person to be free from various restrictions
and hindrances is that he may be free for the kind of life he was meant to live,
for the attainment of his end. Law curtails freedom from because it imposes
obligations a man would otherwise be free from, but it enhances freedom for
because it enables a man to live the kind of life he has been created for.
Law frees man from bondage to ignorance and error without lessening mans
responsibility and self-control. In the sense, it is correct to say that true
freedom is the right to do what we ought, and the law shows where the ought
lies. (Fagothey)
Note:
Conflicts may arise between the various types of fundamental rights accepted
in the modern democratic state. Attempts have been made to try and delineate
some sort of natural-law basis upon which a scheme of preferred values might
be erected.
Customary International law has hardly provided much assistance. It imposes
very few restraints upon the sovereign power of a state to deal with its own
citizens or resident aliens, and in any event no judicial or other machinery is
provided for such issues to be investigated or made the subject of judicial
rulings. For this purpose, there are at least two requisites, namely, in the first
place a clearly laid down code of established human rights accepted by all
civilized states, and judicial machinery whereby issues involving alleged
infringement of these rights can be investigated or made the subject of judicial
rulings.
e.
Lloyds Law and Customs
Customary Law
norms operating in less developed societies;
Operates at all levels of the society
It is impossible to differentiate between legal, moral and religious norms.
Habit is a course of conduct which we regularly pursue but without any sense
or compulsion to do so.
Conventions represent the attenuated survivals of customs of an earlier
period
Note:
Both customs and conventions are normative
Two important misconceptions:
1) In early society, custom was completely rigid and unchanging, and that
primitive man was born into a helpless condition of total conformity to
the tribal custom.
Studies show: Custom was subject to constant adaptation to new
situations
2) Primitive man was caught up like a fly in a web of inherited custom
that so great was the fear of the forces of religion and magic that
violation of custom by an individual offender was unthinkable
Studies show: Custom was self-enforcing and any occasional violation
would be left to the supernatural powers
Note:
The purpose of sanctions is to maintain the social order in the community for
the breach is seen as disturbing social solidarity.
The vital contrast between law and primitive custom is not that the latter lacks
the substantive features of law; or it is unsupported by sanctions but simply
that there is an absence of a centralized government.
Due to the absence of machinery for enforcing decisions, primitive law is
dependent on rather indiscriminate modes of enforcement including self-help
remedies applied by the next-of-kin of the injured person.
III. Natural Law

(Right and Reason by Austin Fagothey; Natural Law Theory of Thomas Aquinas
by Susan Dimock; Arguing about Law by Andrews Altman)
a. Abstract
The theory of Natural Law can be divided in two: Classical Natural Law
and Modern Natural Law. One of the main thinkers of Classical Natural Law is
St. Thomas Aquinas. He stated that the universe is governed by a single, selfconsistent, and overarching system of law. On the other hand, the modern
Natural Law Theory differs from the Classical on its emphasis, shift, and basis.
There are also conflicting views on the relationship of law and
morality. One of them is the idea that law and morality are one and the same.
Some see morality as a higher form than man-made law and yet there is
another view which states that they can be separated.
Lastly, the discussion on justice shows the different views on justice
and its relationship with law and morality.
b. Classical Natural Law
Before, it was accepted that the laws of the state were sacred and
beyond all criticism but the ancient philosophers claimed that the rules of
positive law were subject to evaluation on the basis of the principle of natural
law. These principles represented a higher law by which the goodness or
badness of positive (or man-made) law could be determined. (Altman)
Meaning of Law
Moral necessity Law directs free beings by imposing on their free will the
restraint of obligation or duty or oughtness. This way of regulating human acts
is in most keeping w/ mans dignity.
Physical law Law as applied to nonfree beings observable in the uniformity or
regularity of their behavior. This is the physical necessity to follow a pattern of
activity. (Fagothey)
GREEK/ARISTOTLE:
Law is understood in the sense of human convention and contrivance such that
if nature and law are put together as natural law, it would seem contradictory
Universal law is the law of the nature. There is a natural justice and injustice
binding to all men. (Fagothey)
GREEKS vs. HEBREWS: On Obeying the Laws

Greeks see obedience as a principle of morality, moral law as separate from
state law and that moral law does not override the law of the state. In contrast,
Hebrews believe that Gods will dictates a moral pattern and obedience is
secured by divine punishment. They rejected the human law as embodiment
of morality but they equated law with morality moral/religious law laid down
by God/developed by divinely-inspired human beings. Human law is to be
obeyed only when it corresponds with divine law. (Lloyd, Law and Morals)
STOICS/CICERO:
First to make wide use of the term natural law.
It is the absolutely necessary course that nature fatalistically follows, with no
distinction between physical and moral law. Reason urges us to obey it willingly
rather than have it forced upon us.
CICERO:
Natural law is unchanging over time and exists in different societies; every
person has access to the standards of natural law by use of reason; only just
laws really deserve the name law and in every definition of law there inheres
the idea and principle of choosing what is just and true. (Kelsens Pure Theory
of Law)
ROMANS:
distinguished between jus (the right) and lex (the law)
legislator of natural is God
CHRISTIAN/EARLY CHURCH WRITERS:
God acting as lawgiver sets the law for His creation by His wisdom and
enforces it by his will. Christians regarded nature as Gods creation. St.
Augustine developed the notion of an eternal law as the law created & given by
God.
Questions:
Are natural morals included?
Can there be an authoritative interpreter of natural law? If so, how
does the law remain natural? (Fagothey)
AQUINAS (according to Altman/Dimock): The universe is governed by a single,
self-consistent, and overarching system of law. This entire system is under the
direction and authority of the supreme lawgiver and judge, God. Human law
occupies a lower tier. In order to be valid law, practical directive must be an
accordance of reason; it must be issued by the person/group who holds lawmaking authority within the community; it must be directed toward the
common good; and it must be promulgated.
1) practical directive must be in accordance with reason; must be directed
toward the common good;
Law is an ordinance of reason. Aquinas also believes that the end of all we do,
when we act in accordance to reason, is happiness. Hence, law must aim at
happiness (not of a certain individual but the happiness) of the whole as a
perfect community. The law must serve the common good. The law also serves
to unify the diversity of people. Aquinas believes that men have different needs
biological, intellectual and spiritual and it is the aim of the law to achieve
these needs.
2) must be issued by the person/group who holds law-making authority
within the community;
Aquinas also believes that the making of a law belongs either to the whole
people or to a public personage who has the care of all the people. Aquinas
believes that the relationship between the ruler and the ruled is natural there
are some who are naturally fit to rule and others who are naturally fit to follow
the rulers commands. These political relations must contain a coercive
component and there came to be added to the rulers authority the coercive
power of making laws and compelling obedience through the threat of
penalties for those who transgress the law.
3)
must be promulgated
For law to be valid it has to be public.

Reasons:
1) People can use the law as a rule and measure for their conduct only if
they know what the law enjoins or forbids them to do; and
2) Both the obligation to obey the law and the permissibility of punishing
those who violate presuppose that the laws which people have an
obligation to conform to can be known by them.
Four Kinds of Law:

Eternal Law- Consists of those principles of action and notion that God
implanted in things in order to enable each thing to perform its proper function
*According to Aquinas, The whole community of the universe is governed by
the divine reason. And since the divine reasons conception of things is not
subject to time, but is eternaltherefore it is that this kind of law must be
called eternal.
* This is called the ultimate norm of morality. Human act is good because it
shares through the eternal law in the goodness of God. (Fagotheys Discussion
on Eternal Law)
Natural Law- Consists of principles of eternal law specific to human beings.
Such principles are knowable by our natural powers of reason. Obedience to
natural law is obligatory and disobedience is wrong for to achieve common
good, natural law must be obeyed.
*Man, having reason & free will, doesnt just simply obey eternal law but
participates fully in the law. The fundamental precept: Do Good, Avoid Evil
Human Law/ Positive Law- consists of rules framed by the head of the political
community for the common good of its members.
*Human law is needed to clarify natural law. Another reason for needing
natural law is because we sometimes fail to willingly follow the dictates of
natural law.
Two ways: deductive and inductive:

a) deductive from natural law to positive law this has a force of
natural law thus we have acts mala in se or acts w/c in themselves are
morally wrong
b) inductive positive law related to natural law thus we have acts
mala prohibita or acts w/c in themselves are not morally wrong but
are otherwise prohibited by law.
Law must be just. A law that is just is morally binding. A thing is just if
it is according to the rule of reason. But the first rule of reason is the
law of nature. If a law does not conform to the rule of nature, it lacks
the force and status of law, it is not just.
Justice according to Aquinas: Demands that the burdens and benefits

of society be distributed proportionately and in the service of the
common good. Human law doesnt proscribe all virtues. It prohibits
only those w/c are possible to abstain and those that are hurtful to
others.
Divine Law- exists over and above natural law, guiding us to the ultimate goal:
eternal salvation.
Reasons for having divine law:
A) Eternal happiness is beyond mans faculties.
B) We need a standard for all, a law that cant err.
C) Laws govern only external acts we need something that can
permeate even thoughts.
D) We need to punish all other vices left unpunished by natural &
human laws.
Because men cant know, by natural reason unassisted by divine revelation,
what God demands of them in order to be worthy of eternal happiness, divine
aw is needed.
Law is a rule and a measure. It is a system of rules by w/c human beings are to
direct their behavior to the common good. To the natural theory of law can be
attributed the retributivist theory of punishment whereby sinners are punished
proportionately.
ENLIGHTENMENT:
God as lawgiver drops out. There is natural law without an eternal law,
without a lawgiver, without any really binding obligation.
Human nature is regarded as eminently knowable by human reason.
They way to find human nature is by stripping from man the artificial
accretions of civilizations so that he may be seen in his native state or
state of nature. (Fagothey)
Evidence of the existence of natural law: (Fagothey)
1) Existence of: values and their objective basis, preeminence and selfjustification of moral value, its irreducibility to any other value and its
absolutely imperative but noncompulsory necessity, the inner drive of
each being toward the attainment of its end, ability of men using
reason to distinguish moral good from moral evil these things when
Reasons:
1) It must be law it needs to have binding force; not mere wish or hint
2) It must be a moral law physical laws are only suitable to nonrational
beings. External compulsion would mean that man must accomplish
his end despite his will, and would do violence to human nature
3) It must be natural law mans nature is the means that will guide him
to his end.
Man comes to know natural law by the use of his reason by drawing
conclusions about his own nature. He can compare his conduct with his nature
and understand the conformity and nonconformity between them and he will
then make rules of conduct that will be able to preserve the conformity.
(Connections between natural conditions and systems of rules are not
mediated by reason but are rather based in the following truisms: human
vulnerability, approximate equality, limited altruism, limited resources, and
limited understanding and strength of will. - Hart)
Natural law consists of precepts of varying degrees of importance for the
welfare of humanity.
Natural law is both absolute and relative. Man is a rational animal but he grows
and develops, too. Natural law must pertain to mans rationality and is absolute
in this sense but it must also be relative to become adjustable to fit human
progress. Justice remains the same but the mode of acquiring it changes.
c.
Modern Natural Law

1. Emmanuel Fernandos Natural Rights
Legal Theory
Emphasis
Context
Man must be directed to his proper good by means that are both effective
(powerful enough to produce the effect) and suitable (to mans rational and
free nature).But that only means both effective and suitable is the natural
moral law.
The thrust of the Classical Natural Law Legal Theory is that there is a conceptual
connection between positive law and morality, and that the oral order is part of
the natural order. Modern Natural Law Theory can be distinguished from
Classical in 3 aspects: emphasis, shift, & basis.
Basis
2)
taken together adds up to a law and since it is rooted in mans nature,

natural law.
Existence of scientific knowledge is evidence that there are laws
governing the activity of beings
Classical
Universecentered focus on the
general order of the universe & the
interconnectedness of those in it
Modern
Mancentered focusing on his
separatedness as a person,
equality, and brotherhood
Human nature w/in the context of

society
because
man
is
a
social/political being & he who lives
outside of the society is either a god
or a beast
Dutybased natural law prescribes
duties w/c man has to comply with &
mans rights are based on duties
situated in a general order
Extended the idea of human

nature & applied it to the context
of the state of nature before
society or government; man have
rights by nature
Rightbased rights in the state of
nature, from w/c duties can be
derived; all men have rights and
we have a duty to respect others
rights
MAIN CHARACTERISTICS & DISTINGUISHING FEATURES OF NATURAL RIGHTS

LEGAL THEORY
The 5 basic distinguishing features of natural rights theory are:
1. Existence of selfevident truths
2. Adherence to natural equality
3. Existence of natural rights
4. Derivation of power from the consent of the governed
5. Limitations on the powers of the government
Existence of self-evident truths
ural rights truths specify in
detail, concreteness, and greater unanimity.
Adherence to natural equality
where man derives equality. Inequality exists when he enters the society &
government, and leaves the state of nature.
Moral rights are derived from morality & may provide justification for legal
rights. Natural rights are a subset of moral right, that man is entitled to certain
rights.
right is both a liberty to do something as well as a claim against someone
entailing a duty on the latters part not to interfere w/ that liberty. Liberty
entails no corresponding duty on the part of a 3rd person, it is considered as a
legal relation.
Inalienability
Derivation
Hobbes & Locke: Natural Rights

Hobbes
o Mans condition in the state of
nature, in pursuit of his desires
o Liberty absence of external
impediments
o Differentiated between power,
liberty, and ability; law of nature &
right of nature
o Virtually all rights may be
alienated, and he surrenders his
right to govern himself to a
sovereign
o The right to self preservation
cant be transferred
Locke
o Natural rights is derived from
mans condition in the state of
nature
o Mans nature is limited by the law
of nature. Rights have correlative
duties. o From this follows that man
has the right to be free & secure in
his life, liberty or possessions.
o There is a right to punish in the
event of a violation of right or
natural law. There is also a right to
reparation & right to assist those
injured in seeking reparation.
o It is only right to property & rights
to executive power w/c are
alienable. Rights to life & liberty are
not.
State of nature
1. Concept of Right
Social contract
Existence of natural rights
Manifest consent
ought to be treated equally in the sense that he has equal rights which ought
tobe individually respected.
Locke
o Man has a more rational or

enlightened selfinterest
o There are many things wanting in
the state of nature: a) established &
settled known law; b) known and
indifferent judge; c) power to back
& support sentence when right
o Men will agree to yield certain

rights & transfer such to an
authority so as to escape the great
inconveniences found in the state
of nature.
o But a covenant is binding only to
those who consent this is his
moral justification of authority,
aside
from
prudential
considerations.
o There is a difference between an

obligation to obey the laws of
nature (tacit consent) and an
allegiance to government (express
consent)
o Ramifications How is express
consent exactly manifested? If this
is left unanswered, any government
can claim to have met the standards
and a government may enjoy
consent yet is in no position to
establish its authority.
d. Law and Morals

1. Lloyds Law and Morals; Harts Justice
and Morality
Derivation of power from the consent of the governed Manner of Derivation

Hobbes
o Man is selfish by nature. He

desires good and hates evil.
Happiness
consists
in
the
fulfillment of desires; desires are
based on the primary desire for
power.
o Man is also in the state of
equality of ability, from w/c arises
equality of hope.
o 3 descriptive laws of nature
derivable given that man is in a
state of war: a) man endeavors to
seek peace to seek peace &
follow it; b) mans willingness to
give up his rights for the sake of
peace; c) pacta sunt
servanda
Through the conventional theory
of morality, fear of the authority
compels men to stick by the
agreement. (Justice being what
the authorities say it is)
i. Express words spoken,
promise, etc
ii. Inference silence, actions,
etc.
Hart:
Morality of a given society refers to the standards of conduct w/c are widely
shared in a particular society. These rules are distinguished from others bec of
serious social pressure, sacrifice of personal interest, threats of punishment,
appeal to respect or guilt. There is an overlap in content between legal and
moral obligation although the requirements of laws are more specific than
moral rules.
Lloyd:
There is no necessary coincidence between law and morals. The convergence
of law with morality was because of three factors namely:
1) Law and morality reinforce and supplement each other
2) They play an important law in establishing the authority of law and
ensuring obedience.
3) Both are couched in normative language.
Divergence
1) Law may only reflect popular morality and the higher ethical standard
may not be embodied in popular sentiment.
2) There are certain areas where the law prefers to abstain from
supporting the moral rule because more social evil may be created
than prevented by the intervention.
3) There is a sphere of morality which is best left to the individual
conscience Libertarian approach.
2 difficulties arise in characterizing rules w/c belong to morality & make
conduct morally obligatory (Hart):
morality have their own area of vagueness
there are disagreements as to the status of rules in relation to human
knowledge and experience
Conflict bet Positive Law & the Moral Law
Law & morality is interrelated & they interact w/ each other but there is a
possibility of serious divergence.
1) Law and Morals must necessarily coincide either because moral law
dictates the actual content of human law. Only the moral law is valid
and the rest must conform to it. Morality= Obedience to the law.
2) Man-made law and moral law enjoy a realm of its own but since the
moral law is higher, it provides a touchstone for the validity of human
law. (classical natural law theory; natural rights of man)
3) Autonomy of each sphere so that neither can resolve questions of

validity save in its own sphere (Positivism). This is a pragmatic view of
moral law and the conflict between legal & moral duty may be
resolved in accordance w/ the dictates of conscience.
e.
Law and Justice

1. Lloyds Law and Justice; Harts Justice
and Morality
Art. 19. Every person must, in the exercise of his rights and in the performance
of his duties, act with justice, give everyone his due, and observe honesty and
good faith.
Justice is a moral value or an aim or a purpose that man sets himself in order to
attain the good life. What is the ultimate good is not a matter of demonstration
but of choice. (Lloyd)
Justice thought as maintaining or restoring balance or proportion. The term just
and unjust could almost equally be conveyed by the words fair and unfair.
Fair is relevant in two situations:
1) When the concern is not who a single individuals conduct but with
the way in which classes of individuals are treated
2) When some injury has been done and compensation or redress is
claimed
The close connection between justice in the administration of the law and the
notion of a rule has made some think that justice is identified w/ conformity to
law. The law itself cant determine what resemblances & differences it must
recognize if its rules are to treat like cases alike. The criteria of relevant
likeness and differences vary w/ the fundamental moral outlooks of persons or
society.
The principles of justice do not exhaust morality. Laws may be condemned as
morally bad simply because they require men to do particular actions, which
morality forbids them to do, or because they require men to abstain from
doing those which are morally obligatory. (Hart)
Note:
The similarity between law and justice is that there is a sense of distribution.
Formal justice may fail to result in substantial justice. An unjust law perfectly
justly administered may embody the most profound injustice. We choose to
accept the criterion by which conduct is judged. Here there is little distinction
between what we view as good and just.
Platonic Justice:
Plato: Every person is inherently adapted to some specific function and that if
he departs from that function, he is guilty of injustice. (An inadequate criterion
of any ultimate good which our own society may aim at achieving)
Formal Justice and Equality:
In modern times, justice had been equated with equality. A law which is
applied without discrimination in this way may be regarded as the embodiment
of justice. Justice, in this sense, is really no more than a formal principle of
equality.
Formal justice requires equality of treatment in accordance with the
classifications laid down by the rules, but it tells us nothing about how people
should or should not be classified or treated.
3 Related Conceptions:
1) There shall be rules laying down how people are to be treated in given
cases;
2) Rules shall be general in character;
3) Justice requires that these general rules shall be impartially applied.
Substantial Justice:
To achieve substantial/concrete justice, the formal requirements of justice
need to be supplemented
1) Concrete Justice: There are certain differences between human
beings that are not appropriate grounds for discriminations like
sex, race, color and religion. Adherence to a value-judgment of
this kind is clearly one of conscious choice and moral conviction
which cannot be deduced from the formal criterion of equality
incorporated in the idea of justice.
2) Equity: Justice should be administered with mercy which means
that legal justice should be tempered to the individual case in the
spirit of equity.
Legal Justice
The formal aspects of justice & the basic characteristics of law correspond. This
can be attributed to the fact that legal conceptions exert influence over the
way in w/c ethical concepts of justice has developed separate from, but
closely related to, the formal structures of a legal system.
The three aspects of formal justice:
1) Existence of Rules: Legal system contains rules which regulate human
behavior and settle disputes
2) General Application: Laws are not necessarily general
3) Impartial Application: Impartiality is the aim but application is
different. We would still have to look into the social development of
the people to say if there is impartiality.
Aristotle: Equity mitigates the harshness of law
Both justice and law saw the need to soften the rigors to meet difficult
individual cases since applying too my equity/rigidity will make the law lose its
character.
Legal Injustice
Three Types of Cases wherein injustice may arise from the law:
1) Law is treated as synonymous with justice but falls short of the ideal
standards; (Lloyd: different interpretations of the law is not injustice
per se; it is the law itself that must be devoid of justness)
2) Law is not duly administered impartially;
3) Law is unjust if judged by whatever value system may be applied to
test the substantial justice of the legal rule.
Law and Substantial Justice
Law needs to possess a just content conforming to the criteria of rightness
based on values outside of justice. Allowing the flexibility on rules by conferring
in judges and other officials the possibility of developing the law and adapting
it to the needs of the society would give the judiciary scope within the rules to
regard the dominant values accepted in the society. The legislative & judiciary
branches can be given guidance to the values to adhere to in arriving at
decisions or in making new laws. It may serve a country w/ a long tradition of
an ordered government & w/ a fairly homogenous population.
IV. Legal Positivism
a. In General
i. Abstract
The school of Legal Positivism found its roots from the idea of Hume
that human inquiry has two sets what is and what ought to be. This idea is
followed by Benthams concept of utilitarianism which set the atmosphere for
the emergence of Legal Positivism.
Legal positivism is law as it is or positive law. In contrast to natural
law, legal positivism separates the field of law from morality. What is legal is
not necessarily moral. According to Austin, law may be immoral but still valid as
long as it is enacted by a sovereign. This sovereign can be the monarch or the
legislature. Law as being enacted by a sovereign is the crucial concept of legal
positivism. For legal positivists, laws draw their validity from a person or group
vested with authority. The question is, who vests this authority? Hart attempts
to answer this question by saying that authority can be found in rules of
recognition (ex: Constitution).
Laws issued by the sovereign should be followed by the people
whether under pain of punishment (Austin) or social pressure (Hart). However,
the sovereign itself obeys no one. Thus, the sovereign is supreme. One main
difference between Austin and Hart is that for the former, law is a command,
while for the latter, law is a rule.
Furthermore, legal positivists assume that there is always a law
applicable to a given situation. Rules govern society in this way. However, in
case there is no existing rule that can solve a particular problem, the sovereign
can delegate its authority (delegated authority) to a group which is tasked to
decide the case using their discretion and wisdom (Austin). This is the role of
judges in a given society. The judges make new rules or adapt old rules and the
sovereign can either overturn their creations or tacitly confirm them by failing
to do so.
This delegated authority, if anything, shows how legal positivism fails
on its proposed theories. Legal positivism has an obsession with rules and how
rules should cover every transaction of mankind. However, should these rules
fail, the task is then passed on to the exercise of discretion by a given group.
Thus, this obsession with rules eventually gives way to human discretion and
how the courts can enforce authority without rules. This contradicts the
positivist principle that rules must exist first before a judge can enforce. This is
where legal realism comes in, which will be discussed in the next chapters.
rooted in moral or natural law, but because they are enacted

by legitimate authority and are accepted by the society as such. (Source:
http://www.businessdictionary.com/definition/legal-positivism.html)
Notes from Sir Sison:
Legal positivism is conceptual or formal. It is a decision made by human beings.
Key tenets of Legal Positivism (Dworkins summary in Is Law a System of
Rules?)
1) Law of a community is a set of special rules, as distinguished from
social rules (custom, culture), used by the community directly or
indirectly for the purpose of determining which behavior will be
punished or coerced by public power.
2) The set of valid legal rules is exhaustive of the law, so that if
someones case cannot be covered by existing rules, judicial discretion
is allowed by the sovereign.
3) Legal obligation is the result of valid legal rules that require the person
to do or to refrain from doing something.
Main Distinction between Natural Law and Legal Positivism:
Natural Law
Legal Positivism
Definition of Law
If law is inconsistent
What is legal is not
with morality then that
necessarily moral as
is not a valid law.
long as it is enacted by a
sovereign (Austin) or by
Valid law is
rules of recognition
characterized as right or (Hart).
wrong.
Law is laid down by
morality- principles
human beings.
which determine if an
act is right or wrong,
Law is a norm, rule or
good or bad.
command.
Source of Law
ii. Definition and Concept
Legal positivism- man-made law as it is set (posited) by man for man rather
than as it ought to be. It implies that legal rules are valid not because they are
God
Law is formal.
Sovereign (monarch or
legislature)
Positivists attack the natural law because by regarding a certain inherent moral
quality as an essential feature of law without which it is not law at all, it tends
to confer on established law a sanctity to which it is not always entitled, and so

creates a barrier against law reform.
of utility. Legal duty does not cease to be a legal duty because the citizen is
persuaded of the moral iniquity of the duty, but whether he chooses to comply
or obey is a question for his own conscience.
Natural Law: A judge to perform his legal duty should refuse apply unjust laws
as being invalid.
Law as a Science
Legal Positivist: Judge is appointed and paid to apply municipal law as

established organs of law-making and not to indulge in or to apply his personal
speculations as to system of higher law. It is the judges legal duty to apply that
law according to its letter and spirit.
COMTE:
Believe that adequate knowledge could be attained only by employing the
scientific method of investigating reality by observation and subjecting its
theories to empirical investigation.
1.
Lloyds Legal
Positivism
HUME:
There are two sets of human inquiry what is actually the case and what ought
to be the case; ought propositions normative and actual propositions
norms.
Law differs from moral norms since it calls for a certain measure regularity of
observance while a moral rule may still be held valid even if it is never or
scarcely ever observed. Hume indicated to be sought in certain ends or aims of
human life were determined not by reason but by the desires of mankind
passions.
KANT:
Recognized the two realms of is and ought but asserted that the latter
contained the absolute rule of morality categorical imperative.
BENTHAM:
Utilitarianism: maximizing human happiness according to the slogan the
greatest happiness of the greatest number. The principle of utility was itself a
metaphysical principle.
2 aspects of utilitarianism:
1) Firm distinction between law as it is and as it ought to be
2) Treating law as a science
Law could only be properly understood if it was treated as an autonomous field
of study free from all issues of morals, religion and the like. The question of the
goodness or the badness of any given law was to be adjudged by the principle
Criticisms of the Conceptual Approach

1) Tends to induce a frame of mind where legal concepts are regarded as
possessing a certain inherent structure and that any developments of
law which disregard this structure is illegitimate. This may pose an
undue restriction on the legal process
2) Legal problems can be solved by means of logical analysis disregarding
the role that policy plays at arriving at legal decisions.
3) The level of investigation only uses second-order facts and not primary
facts including behavior of legal officials, judges and others.
b. Austins concept
1. Murphy and Coleman, The Nature of Law
The command theory of law (He makes the concept of command central in his
theory of law.)
Why? Because of the non-optional nature of legal requirements
-The law is a coercive method of social control, not a moralistic advice.
(identifies legal obligation with force)
-The law demands the attention and compliance of those to whom it is
directed.
-command- 1) signification of desire of the sovereign 2)ability to inflict evil or
harm for the nonsatisfaction of desire
-Austins concept is more applicable to criminal law, because his concept of
punishment is only applicable to laws that prevent us from doing certain things
(ex: killing, stealing) but not to laws that allow us to do certain things (ex:
validity of contracts)
Notes:
Characteristics of Law:
-Orders backed by threats

-majority of a social group habitually obey the orders backed by threats of the
sovereign person or persons, who themselves habitually obey no one. (Harts
summary of Austins theory in The Foundations of a Legal System)
person having the obligation will suffer a punishment or evil in event of

disobedience. Statements of obligation predict ones chances of incurring
punishment or evil. Thus, this makes the obligation to obey the law
predictive.
- Obligation is based on a rule and a rule is based on a general command, and a

command as an expression of desire that others behave in a particular way,
backed by the power and will to enforce that expression in the evnt of
disobedience (Dworkins summary of Austins theory in Is Law a System of
Rules?)
-Violating the command would subject you to sanction or punishment.
Habit vs. Rule (Concept of Habit of Obedience discussed in Harts Sovereign

and Subject)
Similarity:
1) Must be general
2) Repeated when occasion arises
Difference:
1) Deviation from the regular course need not be a matter for any form of
criticism.
2) Where there are such rules, not only is such criticism in fact made but
deviation from the standard is generally accepted as a good reason or making
the criticism.
3) Habits are not normative and cannot confer rights or authority on anyone.
-Gunman metaphor: gunman putting a pistol on your head uttering the words,
your money or your life
External aspect of rules: uniform behavior shows that a rule is efficacious

Internal aspect of rules: a standard for members of society to follow a rule.
-Law is a command of the sovereign to render him legal obedience.

command
-That sovereign is not subject to anyone else.
-Law also draws validity through habituality. The more one repeats an act, the
more other people will obey the law.
c.
Harts concept
1.
Prescriptive (what ought to be) vs. Descriptive (what is)

-Austin terms this as normative jurisprudence (prescriptive) and analytical
jurisprudence (descriptive). He rejects normative jurisprudence. Instead, he
characterizes the law as it is.
-It is not enough to say that laws are prescriptive because even if you have the
Constitution, when no one obeys this as a point of fact, then no one can
recognize it as a standard. Thus, it is also crucial that laws are descriptive of
reality (i.e. that people as a fact obey the law or at the very least know that
they should obey the law) (from Murphys The Nature of Law)
What gives the sovereign a cloak of authority is measured by how habitual
people obey its laws.
What makes people obey the law of the sovereign is the fear of being subjected
to punishment. A persons beliefs, fears, and motives in obeying the law are
not relevant. Obligation is viewed in terms of the chance or likelihood that the
Harts Law as the Union of Primary and

Secondary Rules
Rules- obligations with serious social pressure, may or may not be customary
Hart criticizes Austins theory in several ways:
1) Austins concept assumes that there is only one sovereign. What if the
sovereign dies and he is succeeded by another? Should the old
sovereigns rules still be followed? Also, Austin states that a new
sovereign gains authority when people habitually follow his rules.
However, how do you characterize that nebulous transition wherein
he has not prescribed any rule yet? (legislation with a dead legislator
persistence of law)
2) Austin likens the force (which impels people to obey the law) to a
gunman. Hence, he seems to imply that the gunman of society indeed
makes the law (from Murphys The Nature of Law). This is an absurd
metaphor because it depicts law as a wrongdoer.
3)
4)
Austins theory is only applicable to criminal laws, where there always

is a sanction. However, there are varieties of laws that confer legal
power to adjudicate or legislate (public powers) or to create or vary
legal relations (private powers) which cannot be construed as orders
backed by threats.
Austins predictive interpretation of legal obligation suffers from two
errors: 1) If it is true that an obligation is characterized by punishment
in case of disobedience, how will this be a form of obligation? He is
merely coerced into doing something. It is the fear of force that makes
a person obey. 2) Predictive interpretations obscure the fact that,
where rules exist, deviations from them are not merely grounds for a
prediction of hostility or sanctions, but are also a reason for applying
those sanctions.
Hart refutes Austins theory by asking, What must be added to a command to

make that command a law? (from Murphys The Nature of Law)
-There must be rules of recognition.
Rule of recognition- affirmative indication that it is a rule of the group to be
supported by the social pressure it exerts
Acknowledgement of reference to the writing as
authoritative in order to dispel doubts as to the existence
of a rule
In a developed legal system, rules of recognition are
more complex in the sense that they do not simply refer
to a text (ex: This is ordained by the Constitution.)
Instead, they refer to some general characteristic
possessed by primary rules (ex: fact of having been
enacted by a specific body like Congress, long customary
practice)
There is a difference between those who voluntarily cooperate to see that laws
are followed and obeyed in contrast to those who reject them and just merely
conform to prescribed external behavior just to avoid punishment. In order to
retain a legal system, it is crucial that the first kind of law-abiding citizens are
the majority in a society, since what makes the minority obey is the
overwhelming social pressure on them. Otherwise, this minority would have
too little social pressure to fear.
Primary rules- rules that contain restrictions on the free use of violence, theft,
deception to which human beings are tempted but which they must repress if
they are to coexist in close proximity to each other
Secondary rules- those that stipulate how and by whom such primary rules may
be formed, recognized, modified or extinguished (public powers)
Rules of Change- 1) new primary rules enacted by an individual or a body of
persons for the conduct of life of the group or some class within this group 2)
eliminates old rules
Rules of adjudication- 1) secondary rules empowering individuals to make
authoritative determinations of the question on a particular occasion a primary
rule has been broken 2) This is the role of the judiciary in the Philippines. 3)
Judgments will become a source of law.
In a way, rules of adjudication are a crude form of rules of recognition. Since
courts are given the power to make determinations on primary rules, then it
presumes that rules of adjudication have given them the authority to do so.
Hence, this rule that conferred jurisdiction on the courts is a form of rule of
recognition.
Characteristic of Law:
-Rules are conceived as imposing obligations when the general demand for
conformity is insistent and the social pressure brought to bear upon those who
deviate or threaten to deviate is great.
Harts solution for the pitfalls of Austins theory:

Harts concept dispenses with the issue of a dead sovereign since authority is
derived from an ultimate rule rather than an authority figure. Furthermore, he
replaces the gunman metaphor with serious social pressure. Lastly, Harts
concept of law is not merely limited to laws that prescribe punishment.
-it is the insistence on the seriousness of social pressure that gives rise to
obligations and makes people obey the law, instead of Austins gunman
metaphor.
2. Harts The Foundations of a Legal System

There must be authoritative criteria for identifying primary rules of obligation.
Refers to an authoritative text or legislative enactment
Ultimate rule- 1) a rule of recognition that provides the criteria by which the
validity of other rules in the legal system is assessed 2) often shown not said
Rules of recognition- specify criteria of legal validity
Rules of recognition are the most fundamental laws of a legal system. Hence, it
is unquestionable. It escapes the conventional categories used for describing a
legal system. It cannot be assessed for it itself prescribes those standards for
assessing primary rules of obligation. It is not valid in the sense that it is
ultimate and so cannot meet tests stipulated by a more fundamental rule.
Obedience from the standpoint of the citizen:
Average citizen only cares about avoiding sanction but rules of change, rules of
adjudication and rules of legal validity are still important for courts and
legislators.
V. Critique of Legal Positivism and Natural Law
1. Dworkin, Is Law a System of Rules?
Critique of Positivism:
1) For the positivists, a judge has no discretion where there is an existing
rule governing the situation. This assumes that all rules are clear and
detailed enough without further need for interpretation.
2) Moreover, in hard cases where there is no applicable rule, the
sovereign can assign someone to exercise discretion to decide a case.
This contradicts the principle of legal positivism that rules must exist
first before a judge can enforce it.
Policy- improvement in some economic, political, social feature of the
community
Principle-1) standard to be observed, not because it will advance an economic
political or social situation deemed desirable, but because it is a requirement of
justice or fairness or some other dimension of morality 2) broader than rules 3)
can be used to decide hard cases when no rules apply
Rule vs. Principle
- Rules and principles differ in the character of the direction they give.
-Principles do not look like rules.
-Principles carry the most weight in hard cases.
-Principles, unlike rules, still survive intact even when they do not prevail.
Rule
Principle
Both sets of standards point to particular decisions about legal obligations in
particular situations.
Applicable in an all-or-nothing fashion Broader, flexible, has more weight or
(If it applies to a given set of facts
importance
then we apply the rule. If not, then we
dont apply the rule.)
Rules cannot conflict with each other
Both principles can be valid and
in the sense that when there are
existing. The validity and existence of
conflicting laws, one is invalid, the
one does not cancel out the validity
other valid. Both cannot be valid.
and existence of the other. Courts
weigh their relative importance in a
given case.
Discretion
-A relative concept: Discretion under which standards? Discretion as to which
authority?
-An officials discretion means not that he is free to decide without recourse to
standards of sense and fairness, but only that his decision is not controlled by
a standard formulated by a particular authority
Dworkins Solution on the Pitfalls of Legal Positivism:
Treat principles as law. Rules are not enough. Principles will be applicable in
deciding cases. Also, legal obligation might be imposed by principles apart from
established rules. This is what judges do when deciding a hard case. However,
discretion is not merely exercised by a judge during a hard case. Even just in
interpreting an existing rule, a judge already uses discretion. No rule is detailed
and specific enough to cover every human situation, as the positivists propose.
Thus, an analysis of the concept of legal obligations must take into account the
important role of principles in reaching particular decisions of law. Dworkin
provides the transition from legal positivism to legal realism.
Dworkin: Law is not a rule. Law is interpretation. (Application of an interpreted
rule to a factual situation) Moreover, law is not simply an instrument but must
contain a goal you want to achieve.
Principle- sense of justice or fairness broader and more important than rules so
every situation is covered
Justice- giving everyone his right 9protect and recognize rights)

Judge- the decision-maker so must be competent
VI. Sociological Jurisprudence

a. In General
i. Abstract
Whereas legal positivism emphasized on the formal aspect of law,
legal realism is chiefly concerned with the connection between law and human
society. Legal realism suggests that more than the actual law that a law student
tries to master in law school there is a law or a code that dictates how legal
problems and cases are solved in real life.
In a nutshell, legal realism is not merely concerned with theory or the
black-letter law. It is also and more importantly concerned with the inner order
of how these laws operate. For instance, although a lawyer may possess all the
valid legal arguments to win an ejectment case, the lawyer must also know the
realities that will lead to a favorable decision. An example would be the
acumen and personal biases of the judge, the bribery that happens inside the
courtrooms, and so on. A lawyer may write all the winning legal arguments
imaginable, but without the requisite (requisite in the sense that it is
customary or habitually practiced by the people in that specific group) bribe or
token gift, his case will most likely fail. Thus, legal realism posits that there is
more to law than actual text and theory. There is no such thing as a purely
objective and neutral court enforcing a law.
1. Lloyds Law and Society
Origins of Sociology
Hegel:
-development of human history as following a preordained pattern
-idea of reason actualizes itself in human history and its highest manifestation
is the national state. Citizens are entirely subordinated to the higher aims of
the state, for only in this way could human potentialities be fully exploited.
Weber:
-every concrete judicial decision involves the application of an abstract legal
proposition to a concrete situation.
Erlich:
-emphasized the role of social norms (which governed society in all its aspects)
in characterizing the law of a society.
-These social norms are known as the living law.

-Thus, the lawyer needs to know not merely the black-letter law, but also the
normative inner order of the living law and thus indicates how the law
operates.
-living law always in a process of change, so that positive law constantly needs
to adapt to it
Pound:
-With the rise of modern technology, one can explain the legal process through
social engineering.
-Drawing from Jhering, Pound saw the legal process as a form of social control
where all the competing and conflicting interests in society are scrutinized,
compared, and accepted or rejected.
-courts: supreme agent of the law in effecting social control
Holmes:
-Law is not a texture of subsisting rules but a mere technique for predicting
what decisions courts of law are likely to make in particular cases.
-Lawyer must not only know set of theoretical rules said to be binding on
courts. He must also explore all the sociological and psychological factors
bearing upon decision-making to show how courts are likely to decide a
particular case.
Characteristics of Legal Realism:
-technique of predicting decision-making
-attempt an understanding of the functioning of the legal system as an
effective means of social control and achieving societys aims for itself
b. Legal Realism
1. Karl Llewelyns The Bramble Bush
Rules alone, mere words, are useless. Concrete instances are necessary for
these rules to mean anything all. Without these instances, rules lose their
meaning.
-Law exists to settle disputes both actual and potential. (dispute-avoidance)
-What officials do about disputes is the law itself. Notice a regularity of action
by these officials to predict what they are most likely to do in the future when
settling disputes.
-It will be the actions of the judge and the available means of influencing
their action which make up the law. Rules are important in the sense that
they help you predict what judges will do.
-The law is less concerned with making order than maintaining it when
something has gotten out of order. For the average citizen, law does not make
order. There is order in a society because society is given and order is given in a
society. The average citizen only deals with the law when there is already a
dispute which involves him. This dispute is a deviation from that order. Hence,
the law is needed to be interpreted to maintain the order.
-In addition to knowing the rules to predict what the courts will do, lawyer
should also know these rules in relation to the life of the community and the
needs of his client.
-In other words, he should know the working situation of his society apart
from knowing the law.
Dispute- 1) a larger category than crimes 2) refers to all kinds of disputes,
whether civil or criminal
Procedural law- conditions the existence of substantive law at all (If you dont
follow the proper procedure, your case will fail despite the merits of your case)
Note from Sir Sison:
-Legal Realism is a form of legal positivism. (Comment: doubtful remark,
because legal positivism if formalistic whereas legal realism is concerned with
working situations and factual realities that are as important as the law itself.)
c.
Law from the Policy Perspective (Policy Science)

1. Reisman, A Theory of Law from the Policy
Perspective
A variety of distinct functions or operations are concealed in the word
decision.
Practice of law- practice of problem-solving
-does not simply consist of mental exercises about abstract notions or rules
-entails making hard choices, whether for society or for a particular client
-a challenge to action
2.
3.
4.
5.
6.
7.
8.
Wealth
Enlightenment
Skill
Well-being
Affection
Respect (the most important of all according to Sir Sison)
Rectitude
Seven Component Decision Functions: (IPPIATA)

1. Intelligence- gathering of information relevant to making social
choices
2. Promotion- agitation to have a particular preferred policy turned into
community law
3. Prescription- legislation or the making of community policy as law
4. Invocation- provisional characterization of some behabior as deviating
from prescription
5. Application- the specification of law to a particular set of events and
the determination of a sanction
6. Termination- the ending of existing prescriptions or laws and the
design of appropriate means of compensating those who had made
good faith value investments in the expectation that they would
continue
7. Appraisal- a consideration of the aggregate effectiveness of the entire
decision process in terms of whatsoever community policies are to be
realized and recommendations for structural or personal change
-Formal law- a myth (Drawing from Reismans Myth System and Operational
Code in Folded Lies)
-Informal rules- 1) decision combined with effective control (effective control:
acts done by public officials to enforce the law) 2) operational code
-Three aspects of law:
1) Formal law
2) Operational code
3) Enforcement
-Law must be obeyed.
Eight Values of Human Wants:

1. Power
-In a society where there are competing interests, the overarching value is
human dignity.
-Institutions:
1) Government
2) Non-governmental organizations
3) Peoples organizations

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Domino, Gutierrez, Leao 2

The professor discussed that these three schools of law correspond to

Natural Law, Analytical Jurisprudence refers to Legal Positivism, and

Fernandos The Relevance of Philosophy

Philosophy is a meta-discipline of looking at law from above. It

Professor Fernando viewed philosophy as a method of conceptual

a. Metaphysical questions about being; existence of God; and the

As a method of rational justification (similar to the method of logic),

The professor summarized this article by saying that: (1) Outsiders

Law resembles a kind of a game in that any such game employs a

5. Harts Persistent Questions

Borderline cases are cases where no legal provision can be applied; or

Also, law develops and changes in a constant process of flux whether

Many fundamental legal concepts are legal creations with vitality of

b. Insider to know the consequences of his conduct; what one ought

There exist persistent questions in jurisprudence because of the

Definitions (in logic, i.e., genus et differentia) no longer suffice

Dangers of Rigid Conceptualism:

Lloyds Conceptual Thinking in Law

The professor summarized this article by stating that law can be

Two ways to define a word (as per Betrand Russell)

1. Perfecto Fernandez Philosophy and Law

Two kinds of knowledge

Second Question: What is the nature of law?

1. Nature of Law place of law in the general schema of knowledge

Two Views on the Nature of Man

Lloyds Law and Force

Is Force an Essential Characteristic of Law?

Authority: Some person is entitled to require the obedience of others

Close there is almost tribal or collectivist pattern; community is

Lloyds Law and Customs

III. Natural Law

GREEKS vs. HEBREWS: On Obeying the Laws

For law to be valid it has to be public.

Two ways: deductive and inductive:

Justice according to Aquinas: Demands that the burdens and benefits

Modern Natural Law

taken together adds up to a law and since it is rooted in mans nature,

Human nature w/in the context of

Extended the idea of human

MAIN CHARACTERISTICS & DISTINGUISHING FEATURES OF NATURAL RIGHTS

Domino, Gutierrez, Leao 12

Hobbes & Locke: Natural Rights

Existence of natural rights

o Man has a more rational or

o Men will agree to yield certain

o There is a difference between an

d. Law and Morals

Derivation of power from the consent of the governed Manner of Derivation

o Man is selfish by nature. He

3) Autonomy of each sphere so that neither can resolve questions of

Law and Justice

rooted in moral or natural law, but because they are enacted

to confer on established law a sanctity to which it is not always entitled, and so

Legal Positivist: Judge is appointed and paid to apply municipal law as

Criticisms of the Conceptual Approach

-Orders backed by threats

person having the obligation will suffer a punishment or evil in event of

- Obligation is based on a rule and a rule is based on a general command, and a

-Violating the command would subject you to sanction or punishment.

Habit vs. Rule (Concept of Habit of Obedience discussed in Harts Sovereign

External aspect of rules: uniform behavior shows that a rule is efficacious

-Law is a command of the sovereign to render him legal obedience.