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READINGS IN LEGAL PHILOSOPHY AND

THEORY

transcends
the
competence
of
each
individual juridical science. It considers the
essential elements which are common to all
juridical systems (Kant).

CHAPTER 1
INTRODUCTORY CHAPTER

According to Giorgio del Vecchio, Philosophy


of Law is the course of study which defined
law in its logical universality, seeks its origins
and general characteristics of its historical
development and evaluates it according to
the ideal of justice drawn from pure reason.

DEFINITION, NATURE AND FUNCTION


Philosophy is taken from the Greek words,
Philos and Logos, which means love of
wisdom.
Philosophy is the study of the universe that
seeks to know the truth and rational
explanation of anything.
Philosophy of Law is that branch of
philosophy which deals with the wisdom of
law.
It studies the nature of law with
particular reference to the origin and end of
law, and all the principles that govern its
formulation. It is part of practical philosophy.
The object of philosophy of law is the study
of law in universal sense, as law can also be
studied as to its particular points in which
the object is Juridical Science or
Jurisprudence.
Parts of the system of Juridical Science are:
1. Public Law
2. Private Law
Parts of Public Law are:
1. Constitutional Law
2. Administrative Law
3. Penal Law
4. Procedural Law
5. International Law
Parts of Private Law are:
1. Civil Law
2. Commercial Law
3. Those that govern relationships
among individuals or juridical entities.
Juridical Science can only inform the people
of the law among certain people in a given
period, answering only the uestion of what is
established by law of a certain system (quid
juris).
Philosophy of law, however,

FUNCTION OF PHILOSOPHY OF LAW


Philosophy of law is a quest of law which
appeals to reason to obtain justice.
One function of philosophy therefore is to
formulate law that is reasonably acceptable
to the people to whom it is addressed.
Philosophy of law therefore is opposed to
tyranny.
The practical function of philosophy is that it
teaches and prepares for the positive
recognition of the juridical ideal.
CHAPTER II
HISTORY OF PHILOSOPHY OF LAW
Every branch of knowledge is better
understood by knowing its history. History of
Philosophy is a means of study and research
which helps in the acquisition of regarding
knowledge
philosophies
advocated
by
different philosophers in the past. It is a
study of how philosophers meditated upon
the problems of law and justice.
Philosophy in the past has been intermingled
with Theology, Morals, and Politics.
THE PHILOSOPHY OF ANCIENT GREECE
The general history of Legal Philosophy
started with the ancient Greek philosophers
Socrates, Plato, and Aristotle.
In the 15th century, the Sophists denied the
existence of absolute justice. Law to them is
relative. Plato in his Dialogue disputed the
Sophists.

Socrates (469-399 BC) believed in a higher


justice for the validity of which it is
necessary that there is a positive sanction or
a written formulation. Obedience to the law
of the state is a duty. Socrates in this way
gave the first indication of the idealistic
philosophical system.
Plato (427-347 BC), a disciple of Socrates,
in his two dialogues, The Republic and The
Laws, presented the ideal concept of the
State as the most perfect unit. The State
dominates all human activity and must
promote good in any form.
Justice is
achieved through the harmonious relation
between the various parts of the State.
Aristotle (384-322 BC), a disciple of Plato, in
his Nichomachean Ethics, said that all
supreme good is happiness, the product of
virtue. The State regulates the lives of the
citizens by means of laws. The content of
laws is justice as is applied in various ways.
Kinds of justice according to Aristotle:
1. Distributive justice applied in giving
honors and respects
2. Connective and equalizing or called
rectifying justice applied to voluntary
contractual relationship.
THE ANCIENT ROMAN JURISTS
The Roman excelled the codification of law
but the philosophical basis derived from the
Greeks.
Cicero said that law is not a product of
choice but is given by nature. There is
eternal law which is an expression of
universal reason. Equity and natural law are
factors in an ideal law.
The contribution of the Romans to
jurisprudence is the formulation of codes,
putting together in a systematic form the
rules and practices.
THE PHILOSOPHY OF THE MEDIEVAL ERA
THE INFLUENCE OF CHRISTIANITY
Christianity as an advocate of liberty,
equality, and the unity of the human family

through divine law became a challenge to


the established political order.
The influence of Christianity later became
profound upon politics and jurisprudence.
Modifying the Greek and Latin philosophies
that the individuals supreme mission is to be
a good citizen of the State, Christianity said
that the good goal of the individual is not
only on civil life but eternal happiness which
can be obtained through submission to the
Divine will.
The Church asserts itself as an autonomous
authority above the State.
The State is
concerned only to earthly things while the
Church, with those that are eternal.
THE RENAISSANCE
The Renaissance, a rebirth that started in the
14th century, came about to overcome the
long period of excessive dogmatism.
In
Renaissance, autonomy and freedom of
investigation were awakened. The discovery
of the New World and the invention of
printing press permitted the propagation of
new ideas.
The Religious Reformation
resulted in the withdrawal of religious
leaders from the authority of the Church.
Accepting Aristotles theory of being good in
political society, law is something that is
presented by reason not by revelation.
Natural, moral law world exists even if there
is no God.
CHAPTER III
HISTORICAL SCHOOL
SAVIGNY, OF THE VOCATION OF OUR
AGE FOR LEGISLATION AND
JURISPRUDENCE
ORIGIN OF POSITIVE LAW
The law will be found to have already
particular faculties and tendencies of an
individual people, inseparably united in
nature, and only wearing the semblance of
distinct attributes to our view. That which
binds them into one whole is the common

conviction of the people, the kindred


consciousness of an inward necessity.
For law, as for language, there is no moment
of absolute rest; it is subject to the same
movement and development as every other
popular
tendency;
and
this
very
development remains under the same law of
inward necessity, as in its earliest stages.
Law grows with growth, and strengthens with
the strength of the people, and finally dies
away as the nation loses its nationality.
With progress of civilization, national
tendencies become more and more distinct
law perfects its language, takes a scientific
direction, and as formerly it existed in the
consciousness of the community, it now
devolves upon the jurists, who thus, in this
respect, represent the community.
LAWS AND LAW BOOKS
Requisites of a really good code:
Young nations, it is true, have the clearest
perception of their law, but their codes are
defective in language and logical skill, and
they generally incapable of expressing what
is best, so that they frequently produce no
individual image...
COMMENTS BY PATON ON SAVIGNY
In opposition to the pure science of law, the
historical school considered law in direct
relationship to the life of the community and
thus laid the foundation on which the
modern sociological school has built.
How did law came to be? Law evolved, as
did language, by a slow process and, and just
as language is a peculiar product of a
nations genius, so is the law. The source of
the law is not the command of
the
sovereign, not even the habits of the
community, but the instinctive sense of right
possessed by every race.
Such is the approach of the historical school,
and it naturally led to a distrust of any
deliberate attempt to reform the law.
Legislation can succeed only if it is in
harmony with the internal convictions of the
race to which it is addressed.

The contribution of the historical school to


the
problem
of
the
boundaries
of
jurisprudence is that law cannot be
understood without an appreciation of the
social milieu in which it has developed. The
slow evolution of law was stressed and its
intimate connection with the particular
characteristics of a people.
But in Savignys particular presentation there
were exaggerations of which the historical
method must be freed if it is to play its true
part:
1. Some customs are not based on an
instinctive sense of right in the
community as a whole but on the
interests of a strong minority, e,g,
slavery.
2. While some rules may devlop almost
unconsciously, others are the result of
conscious effort. Law has been used
to plan the future deliberately and not
merely to express and order the
results of past growth.
3. The creative work of the judge and
jurist was treated too lightly. The life
of a people may supply the rough
material, but the judge must hew the
block and make precise the form of
law.
4. Imitation plays a greater part than the
historical school would admit.
5. Savigny encouraged what Pound has
termed
as
juristic
pessimismlegislation must accord with the
instinctive sense of right or it was
doomed to failure. Hence conscious
law reform was to be discouraged.

CHAPTER IV
SEMINAL CONCEPTS (Philosophical
Approach)
THE REPUBLIC
By Plato
CLASSICAL NATURAL LAW
According to Plato, when judgment of society
takes the form of a public decision of the
state, it has the name law.

According to Socrates, public opinion is true


opinion, and true opinion is discovery of
reality. He therefore concludes that law
seeks to be the discovery of reality, or more
precisely, it is the true reality with respect to
the administration of the state.
Law may not always achieve its ideal of
discovering true reality, still, Socrates adds,
no society believes that that just can really
be unjust. Whoever fails to reach reality,
fails it find the law. Those who know always
accept the same views; they will not write
differently at different times on different
matters. If we see some persons anywhere
doing this, we can say that they have no
knowledge; and if they are mistaken in what
they describe as law, then that law is mere
appearance and ought not be accepted to be
asserting a distinction between principles
and rules.

as distinguish from cross-examination, was


perhaps the least likely to lead to the
discovery of truth.
However, in the Laws and Statesman, Plato
realized that on this earth benevolent
dictatorship was a counsel of perfection and
that he would better propose a solution
which had a possibility of realization: society
should fall back upon law as second-best. He
asserted that fixed laws are to be preferred
to the personal administration of the
unscientific ruler which is the type society
usually receives.
For Plato, there was not a man among us
whose natural equipment enabled him both
to see what was good for men as members
of the community, and on seeing it, always
to be both able and willing to act for the
best. As Acton puts it, all power corrupts
and absolute power corrupts absolutely.

Plato offers another definition of law as the


opportionment of reason.

Law the generality of it could not always do


justice to particular cases.

Reason is apprehension of reality. So


what did Plato mean by reality?

The State for Plato is a man on large scale. It


is a whole form of various individuals and
solidly built, as body is formed of several
organs, which together make its life possible.
Both in the individual and in the State, there
must reign that harmony which is obtained
through virtue. Justice is the virtue par
excellence, insofar as it consists in a
harmonic relation between the various
parts of a whole.

Plato once tentatively defined reality as


power, by which he meant that anything has
real existence if it has inherent in it the
power of being affected or of affecting
others, no matter how small.
Plato asserted that law was the discovery of
true reality, appearing to mean that the
moral value of law increases as it
approximates the ideal law which exists in
the world is reality.
Plato puts forward the theory that law is an
instrument of social control and thus
suggests the problem of the end of law. He
held that the end of law was to produce men
who were completely good. He therefore
rejected laws that did not incline to the end,
asserting that a bad law is a no law.
Was Plato hostile to law?
Plato of the
Republic preferred the adaptable intelligence
of the all-wise autocrat to the impersonality
of the rule of law. Heknew well the simple
truth, as the trial of Socrates had shown him,
that the debating method of the courtroom,

Three parts or faculties exist in the soul of


the individual:
1. Reason which dominates
2. Courage which acts
3. sense which obeys
Similarly, in the State three classes are
distinguished:
1. The wise to dominate
2. Warriors to depend the social
organisms
3. Artisans and farmers who must feed it.
The cause of participation in and submission
of the individual to the State is the lack of
autarchy, the imperfection of the individual,
his insufficient by himself.

For Plato, it is only the State which is a


perfect being and sufficient unto itself, and
which absorbs and dominates all. The State,
therefore, dominates human activity in all its
manifestations. Upon its rest the duty to
promote good in its every form. The power
of the State is limitless. To render stronger
and closer-knit the political organization,
Plato suppresses social entities which are
intermediate between the individual and the
State. By Plato, at any rate, the personality
of man is not adequately recognized.
These briefly are the principal concepts
formulated by Plato in the Dialogue,
Republic.
The Dialogue Laws, composed
later, when Plato was seventy, has character
different preceding one, because it does not
trace out a pure ideal, but considers instead
historical reality, and there appear often an
admirable sense of practical experience.
In the Dialogue Laws, Plato shows a greater
respect for individual personality, always,
however, that of free men only. Family and
property are conserved, no longer sacrificed
to the sort of Statism, as in Republic. The
authority of the State however remains
nevertheless very great and overpowering.
Plato
criticizes
both
monarchy
and
democracy, and proposes a sort of synthesis,
a mixed government. Just like in Sparta,
aside from two kings, there were the Senate
and the Ephors.
COMMENTS ON PLATO BY CAIRNS, THE
REPUBLIC

In the Platonic Minos, his definitions of law


are partial. They are always relative to the
problem before him, and the aspect of law
which they emphasize constantly shifts in
order to permit different consequences to be
drawn.
In the Rhetoric to Alexander, it is pointed out
that in a democracy the final appeal is to
reason.
A self-governing community is
directed along the best path by its public
law, and so as king, as the embodied of
reason, guides along the path of their
advantage those who are subject to this rule.
In a clumsy attempt to bring the two ideas
together, law then is defined as the common
consent of the community, regulating action
of every kind.
And later, in the same treatise, law is defined
as the common agreement of the state
enjoining in writing how men are to act in
various matters.
Aristotle agreed with Plato that legislation
should teach virtue. Goodness, in men, he
thought, could be secured if their lives were
regulated by a certain intelligence, and by a
right system, invested with adequate
sanctions. He therefore suggests that, in a
general sense, the la itself is a kind of
contract, so that whoever disregards or
repudiates a contract is repudiating the law
itself. Aristotle however said that law was
much more than a contract. He pointed out
that if the state did not pay attention to
virtue, the community became merely an
alliance.

How much Plato owed to his predecessors?


From Solon:
depended upon
sound laws, and
good citizen to
made.

Happiness of the state


the faithful observance of
that it was the duty of the
see that such laws were

Aristotle developed a distinction between


constitution and laws:
Constitution the organization of offices in a
state, and determines what is to be the
governing body, and what is the end of each
community.

From Herodutos: Law is the master.


From Pindar: Law is the lord of all.

ARISTOTLES POLITICS
Classical Natural Law

Laws are the rules according to which the


magistrates should administer the state, and
proceed the offenders.
To the extent his works have survived, it is
clear that Aristotle did not reach any final
definition of law.
He saw the inherent

complexity of legal phenomena, and he


found no single description of it could
embrace its manifold aspects.

Aristotle thought of law as a rule of


conduct for the individual
Stressed the ideal reason, the doctrine
that legal precepts should have some
basis in intelligibility and not be the
mere expression of arbitrariness,
force, or custom
Presented law as a contract
Distinguished law from constitution
and defined as the rules in accordance
with which court determine cases
Pointed out law as a form of order.

Law itself, like everything in the Aristotleian


system has its end and to Aristotle it was
very clear that its task was to make men
good. And to Aristotle, the highest good is
happiness or well-being.
Aristotle defined happiness as an exercise of
the powers of life in accordance with the
virtue throughout the whole life-time.
Happiness takes its origin in virtue, it issues
in pleasure, and material good-fortune is its
ordinary equipment.
Aristotles definitions satisfy the Platonic
conditions for a happy life, but as a juristic
formula it has several defects:
The tasks of law can no more can be
caught within the net of a single
formula than its numerous and
contradictory aspects can be confined
within the limits of one definition.
The idea of the end of law is that it
breaks down as it is put into practice.
Aristotle held that the law has no power to
command obedience except of that habit.
Education also assists in making obedience
to law second nature to the citizens.
In the doctrine of the categories, conduct
comes under the heading of Quality. Virtue
is a Quality and Aristotle assumes that the
category has four divisions:
habits, or
tendencies to do a thing; capacities for doing
a thing; feelings, passions and emotions
prompting us to do a thing; and external
form or shape.

Habituation is the only method of acquiring


that settled tendency to do acts of a certain
kind.
THEORY OF LEGISLATION
Aristotles normative view of the law is
clearly apparent in his theory of legislation.
That law prescribes certain conduct: that
conduct of a brave man; that of a template
man; that of a gentleman, and so with all the
other virtues and vices, prescribing some
actions and prohibiting others.
Plato held that legislation should be so
framed that it could be incorporated in a
manual of instruction for the young.
Lagislation is a branch of political science.
Collections of laws and constitutions may be
serviceable to students capable of studying
them critically and judging what measures
are valuable or the reverse, and what kind of
institutions are suited to what national
characteristics. But those who examine such
compilation without possessing a trained
faculty cannot be capable of judging them
correctly, unless, indeed, by accident, though
they may very likely sharpen their political
intelligence.
Aristotle laid down a series of principles to
control and guide the legislative process:

The legislators he believed were from


middle class--- ought to have his eyes
directed to two points the people
and the country.

Legislators state must have a political


life, a life of intercourse with other
states

A legislator must make sure that the


nations arms should be such as
enable it to meet its foes in its on
territory.

The legislator must pay attention to


the foreign relations of the state

The legislator should not make


conquest the aim of the state.

Ciceros principal thesis is that Law is not a


product of choice, but is given by nature.
According to him, Law is noted based on
arbitrary opinion, but there is a natural,
immutable and necessary just as is proved
by testimony taken from the very conscience
of man.
Besides this jus naturale, there exists jus
gentium observed by all people which serves
as a basis for their mutual relations because
it based upon their common needs. And
there is jus civile, that which is in force for
each people in particular.
There is therefore a law of nature,
immutable, not artificially made but already
existing, inborn. It is a uniform law, not
subject to change by the action of men.

THE ROMAN JURISTS


CICERO DE LEGIBUS
Law is the highest reason implanted in
nature. It is the mind and reason and mind
of an intelligent man, the standard by which
Justice and Injustice are measured.
Reason when perfected is rightly called
wisdom.
Those creatures who have received the gift
of reason from Nature have also received
right reasons, and therefore they have also
received the gift of Law, which is right reason
applied to command and prohibition. And if
they have received Law, they have received
Justice also.

COMMENTS ON CICERO BY CAIRNS


Cicero maintains that nothing can be nobler
than the law of the state. Law is the bond of
the society, and the state may be defined as
an association or partnership in law. If a
state has no law, it cannot be considered a
state at all.

KANTS THE PHILOSOPHY OF LAW


PROLEGOMENA
LAW AND ETHICS
General Introduction to the Metaphysics
of Morals
Laws of morality is not drawn from
observation of oneself or of our animal
nature, nor from perception of the course of
the world in regard to what happens, or how
men act. But Reason commands how we
ought to act, even although no example of
such action were to be found; nor does
Reason give any regard to the Advantage
which may accrue to us by acting , and
which Experience could alone actually show.

GENERAL DIVISIONS OF THE


METAPHYSICS OF MORAL
GENERAL PRELIMINARY CONCEPTIONS
DEFINED
Nature and Positive Laws Obligatory
Laws for which an external Legislation is
possible, are called generally External Laws.
Those External Laws, the obligatories of
which can be recognized by Reason a priori
without an external Legislation, are called
Natural Laws. Those Laws, again, which are
not obligatory without actual External
Legislation, are called Positive Laws.
Maxims The Principle which makes a
certain action a Duty, is a Practical Law. The
Rule of the Agent or Actor, which he forms as
a Principle for himself on subjective grounds,
is called his Maxim.
The Categorical Imperative The
Categorical Imperative only expresses
generally what constitutes Obligation. It may
be rendered by the following formula: Act
according to a Maxim which can be adopted
at the same time as a Universal Law.

INTRODUCTION TO THE SCIENCE OF


RIGHT
General Definitions and Divisions

A. WHAT THE SCIENCE OF RIGHT IS?


The Science of Right has for its object the
Principles of all the Laws which it is possible
to promulgate by external legislation

D. RIGHT IS CONJOINED WITH THE TITLE


OR AUTHORITY TO COMPEL
Everything that is wrong is a hindrance of the
freedom, according to universal Laws; and
Compulsion or Constraint of any kind is a
hindrance or resistance made to Freedom.

B. WHAT IS RIGHT?
All this may remain entirely hidden even
from the practical Jurist until he abandon his
empirical principles for a time, and search in
the pure Reason for the sources of such
judgments, in order to lay a real foundation
for actual positive Legislation.
The conception of Right:
1. External and practical relation of one
Person to another, in so far as they
can have influence upon each other,
immediately or immediately, by their
Actions as facts.
2. The relation of his free action to the
freedom of action of the other.
3. In this reciprocal relation of voluntary
actions, conception of Right does not
take into consideration the matter the
act of Will in so far as the end which
any one may have in view in willing it,
is concerned.
Right, therefore, comprehends the whole of
the conditions under which the voluntary
actions of any one Person can be harmonized
in reality with the voluntary actions of every
other Person, according to a universal Law of
Freedom.

COMMENTS BY PATON ON KANT


To define law we must distinguish between
form and matter. Form is being the
complex
of universally valid principles presupposed in
any legal judgment; Matter is the changing
world of social experience which those
principles construe legally.
Rodulf Stammler regards Philosophy of Law
as the theory of those propositions about
law which have universal validity.
According to Stammler, law belongs to the
realm which chooses end and determines
Mean; that law is the notion of purpose. It
exists to bind together the community. Since
by definition law exists to harmonize the
purposes of individuals, law itself strives
towards justice. The fundamental basis of
law and of just law are, therefore, the
same.
Law exists to coordinate, it can operate only
by unifying all possible acts of men.
These principles of just law are based on the
doctrines of respect and of
participation.

C. UNIVERSAL PRINCIPLE OF RIGHT


Every Action is right which in itself, or in the
maxim on which it proceeds, is such
that
it can co-exist along with the Freedom of the
Will of each and all in action, according to a
universal Law".
Or it can be expressed as Act externally in
such manner that the free exercise of thy
Will may be able to co-exist with the
Freedom of all others, according to universal
Law.

Points of Stammlers Theory on Law:


1. Law can exist only if actual society
exists.
2. The realm of law and the natural world
are distinct.
3. Most systems do assume that law is
complete and exclusive system in
itself.

HEGELS THE PHILOSOPHY OF RIGHT

Hegel believed that philosophy possessed a


logic or method of its own, one that was
peculiar to itself, and which constituted
philosophys own kind of scientific proof.
This was the dialectic method, which
proceeds through the development of
concept. It is the process by which from the
first member of the triad, say Being, a
second element, Nothing, is deduced. This is
possible because Being in its completely
abstract form, devoid of all qualities is,
Nothing. But we are able to at this point to
perceive the presence of the member of the
triad, Becoming. In fact we are forced to
take this step according to Hegel because
unless we do so, we are asserting the
paradoxical proposition that Being and
Nothing are the same that a thing is both is
in and is not. We must therefore search for
what Hegel calls the unity of opposites. In
the present case it is found in Becoming; a
thing both is and is not when it becomes.
Rational is actual and actual is rational.
So far as jurisprudence is concerned with the
truth is nothing new. Philosphys problem is
to isolate those truths and to exhibit their
logical necessity.
The laws of nature are given and their
measure is outside man.
Positive law, on the contrary is posited, it
originates with man.
We cannot know the truth through the
method
of
either
intuitionalism
or
subjectivism. Philosophys concern is with
the rational. This means that it is an effort to
apprehend the actual.

CHAPTER V
AUSTIN, THE PROVINCE OF
JURISPRUDENCE DETERMINED
Laws proper, or properly so called are
commands; laws which are not commands
are laws improper or properly so called.
Laws properly so called, with laws improper
by so called, may be aptly divided into the
four following kinds:

1. The divine laws, or the laws of God: that


is to say, the laws which are set by God
to his human creatures.
2. Positive Laws: that is to say, laws which
are simply and strictly so called, and
which form the appropriate matter of
general and particular jurisprudence.
3. Positive morality, rules of positive
morality, or positive moral rules.
4. Laws metaphorical or figurative, or
merely metaphorical or figurative.

The divine laws and positive laws are laws


properly so called.
Of positive moral rules, some are laws
properly so called, but other laws are
improper. Positive moral rules may be
styled laws or rules set or imposed by
opinion: for they are merely opinions or
sentiments held or felt by men in regard
to human conduct.
A law metaphorical or figurative and a law
imperative and proper are allied by
analogy merely; and the analogy by
which they are allied is slender or remote.

Consequently, positive laws (the appropriate


matter of jurisprudence) are related in the
way of resemblance, or by close or remote
analogies to the following objects: the laws
of God; positive morality which are set by
opinion; and to laws metaphorical or laws
merely metaphorical.
In the six lectures, Austin distinguished
positive laws from the enumerated other
kinds, and considered as a whole, the
province of jurisprudence determined. It is
accomplished through the following:
1. He determined the essence or the nature
which is common to all laws that are laws
properly so called. And,
2. Determined the respective characters of
the four several kinds into which laws
may be aptly divided.
Having suggested the principal purpose,
Austin indicated the following topic:
1. He determined the essence or nature
which is common to all laws that laws
properly so called.
Determining the essence or nature of a law
imperative and proper, Austin determined
implicitly the essence of nature of a

command. By commands, Austin implied:


sanction or enforcement of obedience;
duty or obligation; superior and
inferior.
2. He determined the characters or marks
by which the laws of God are
distinguished from other laws.
Austin divided the laws, and other
commands of the Deity, into two kinds:
1. The revealed or express
2. Unrevealed or tacit
According to Austin, the divine law is the
measure or test of positive law and morality:
Or law and morality, in so far as they are
what they ought to be, conform, or are not
repugnant, to the law of God.
Since, then, the nature of the index to the
tacit command of the Deity is an allimportant object of the science of legislation,
it is a fit and important object of the kindred
science of jurisprudence.
Austin distributed laws or rules into two
classes:
1. Laws properly so called, with such
improper laws as are closely analogous
to the proper;
2. Improper laws which are remotely
analogous to the proper and which,
therefore,
laws
metaphorical
or
figurative.
Laws proper with much improper laws as are
closely analogous to the proper are under
three classes:
1. Properly so called the laws of God
2. Properly so called the positive laws
3. Properly so called, with the laws
improperly so called, positive morality or
positive moral rules.
Positive
moral
rules
distinguishing
characters:
1. Laws or rules set by men to men as are
not armed with legal sanctions;
2. Laws or rules as are not positive laws, or
are not appropriate matter for general
or particular jurisprudence.
Determining the characters of positive laws,
determines
implicitly
the
notion
of
sovereignty, with the implied or correlative

notion of independent political society. Every


positive law or every law simply and strictly
so called is set by a sovereign person, or a
sovereign body of persons, to a member or
members of the independent political society
wherein that person or body is sovereign
supreme.
A
law,
in
the
most
general
and
comprehensive acceptation in which the
term, in its literal meaning, is employed, may
be said to be a rule laid down for the
guidance of an intelligent being by an
intelligent being having power over him.
Without extension by metaphor or analogy,
the term law embraces the following objects:
1. Laws set by God to his human creatures;
and
2. Laws set by men to men.
The whole or a portion of the laws set by God
to men is frequently styled the law of nature,
or natural law. But rejecting the appelation
Law of Nature as ambiguous and misleading,
Austin named those laws or rules the Divine
Law or the law of God.
Of the laws or rules set by men to men,
some are established by superiors, sovereign
and subject: by person exercising supreme
and subordinate government, in independent
nations, or independent political societies.
As contradistinguished to natural law, or to
the law of nature , the aggregate of the
rules, established by political superiors, is
frequently styled positive law.
Closely analogous to human laws of this
second class, are a set of objects frequently
but improperly termed laws, being rules set
and enforced by mere opinions or sentiment
held or felt by an indeterminate body of men
in regard to human conduct. Austin denoted
them by the term positive morality. The
name morality severs them from positive
law, while the epithet positive disjoins them
from the law of God.
There are numerous applications of the term
law, which rest upon a slender analogy and
are merely metaphorical or figurative. Such
is the case when we talk of laws observed by
the lower animals; of laws regulating the
growth or decay of vegetables etc. For

where intelligence is not, or where it is too


bounded to take the name of reason, there is
not the will which law can work on, or which
duty can incite or restrain.

It also appears then that command, duty,


and sanction are inseparably connected
terms.
Commands are of two species: laws or rules.

Every law or rule (taken with the largest


signification which can be given to the term
properly) is a command.
A command is distinguished from other
significations of desire by purpose of the
party commanding to inflict an evil or pain in
case the desire be disregarded.
If you
cannot or will not harm me in case I comply
not with your wish, the expression of your
wish is not a command, although you utter
your wish in imperative phrase.
Being liable to evil from if I comply not with
youre a wish which you signify, I am bound
or obliged by your command, or I lie under a
duty to obey it.
Command and duty are, therefore correlative
terms: the meaning denoted by each being
implied or supposed by the other.
The evil which will probably be incurred in
case a command be disobeyed or in case a
duty be broken is frequently called sanction,
or an enforcement of obedience.
By some celebrated writers (by Locke,
bentham, and Paley), the term sanction, or
enforcement of obedience, is applied to
conditional good as well as to conditional
evil: to reward as well as to conditional
punishment. However, Austin disagreed with
this, according to him, if a law hold out a
reward as an inducement to do some act, an
eventual right is conferred, and not an
obligation imposed, upon those who shall act
accordingly.
From what has been premised, the ideas or
notions
comprehended
by
the
term
command are:
1. A wish or desire conceived by a rational
being, that another rational being shall
do or forbear.
2. An evil to proceed from the former, and
incurred by the latter, in case the latter
comply not with the wish.
3. An expression or intimation of the wish
by words or other signs.

Most of the laws which are established by


political superiors, or most of the laws which
are simply and strictly so called, oblige
generally the members of the political
community, or oblige generally persons of a
class. To frame a system of duties for every
individual of the community, were simply
impossible.
Superiority is defined by Austin as signifying
might: the power of affecting others with evil
or pain, and of forcing them, through fear of
that evil, to fashion their conduct to ones
wishes.
The might or superiority of God, is simple
and absolute. But in all or most cases of
human superiority, the relation of superior
and inferior, and the relation of inferior and
superior are reciprocal. The party who is the
superior as viewed from one aspect, is the
inferior as viewed from another.
There are other objects improperly termed
laws (not being command) which yet may
properly be included within the province of
jurisprudence:
1. Acts on the part of legislatures to explain
positive law working no change in the
actual duties of the governed, but simply
declaring what those duties are.
2. Laws to repeal laws, and to release from
existing duties. In so far as they release
from duties imposed by existing laws,
they are not commands, but revocations
of commands.
3. Imperfect laws, or laws of imperfect
obligation. A law which wants a sanction,
and which, therefore, is not binding.

COMMENTS BY PATON ON JOHN


AUSTINS IMPERATIVE SCHOOL
Paton discussed Austins views under three
heads: (a) the basis of jurisprudence, (b) the

method of jurisprudence, (c) the relation of


laws and ethics.
THE BASIS OF JURISPRUDENCE
Austins broad approach to law was to regard
it as a command of the sovereign. Positive
laws is a general rule of conduct laid down
by a political superior to a political inferior.
The notion of command requires that there
must be a determinate person to issue the
command, and that there is an implied threat
of a sanction if the command is not obeyed.
Austins aim was to separate positive law
sharply from such social rules as those
custom and morality.
The emphasis on
command achieved this end, for the rules of
etiquette are not laid down by a definite
person.
But, if the law of each country is based on
commands of the sovereign person (or body
of persons) in that country, on what is
jurisprudence to be based?
As each
sovereign may command what he wishes,
will not there be the utmost diversity
between the legal systems? Is there any
element of identity on which general science
can be based?
Austin did not deal clearly on this problem.
He assumed, without any real investigation,
that
certain
principles,
notions,
and
distinctions were common to all systems of
law. Some notions were universal because it
was impossible coherently to construct a
legal system without using them, e.g. the
terms duty, right, injury, punishment, and
redress.
Analysis reveals Austins foundation to be
rather unstable:
Firstly, it is clear that there are no universal
rules of law.
Secondly, there are few concepts which are
common to all legal systems, and if we
confine our analysis to such as we think are
universal, we run to dangers: 1. If further
research shows that there are no concepts
which are common to all systems, then there
is no basis for general jurisprudence at all;
2. Even if a few notions are proved to be

universal, they form somewhat narrow basis


for a science of law.
The solution of the problem is that, although
there are few rules of law that are universal,
yet there may be universal principles of
jurisprudence.
The
assumption
of
jurisprudence is that in all communities
which reach a certain stage of development
there springs up a social machinery which we
call law.
Jurisprudence is not primarily
interested in cataloguing uniformities, nor in
discovering rules which all nations accept.
Its task is to study the nature of law, the
nature of legal institutions, the development
of both law and legal institutions and their
relationship to society.
Jurisprudence is
founded on the attempt, not to find universal
principles of law, but to construct a science
which will explain the relationship between
law, its concepts, and the life of society.
Austin did not analyse this problem acutely.
THE METHOD OF JURISPRUDENCE
Austin believed that the chief tool of
jurisprudence was analysis. Today, however,
it is increasingly recognized that, useful as
analysis may be, it will not suffice to answer
all the problems of jurisprudence. Some of
the imperative school seem to proceed on
the tacit assumption that all legal problems
can be answered by analysis of the rules that
exist and by deductions from them.
Exaggerated positivism ignores the fact that
law develops not by logic alone, but by
drawing new values from the life of the
community and by gradually reshaping the
rules so that they accord with the standards
of today.
We cannot always convict a
dissenting minority in the House of Lords of
an error in logic what is frequently decisive
is the judges view of the purpose that law
should achieve.
What is here st6ressed is only that the
analytic system based on Austins teaching
did not make sufficient allowance for the
creative element in law and tended to
magnify the static character of legal rules.
LAW AND ETHICS

Austin distinguished jurisprudence, the


science of the law from the science of
legislation which he based on the principle of
utility. But we can see today that even the
most positive member of the analytical
school did not succeed in separating the law
that is from ideal elements. Analysts treated
law as a coherent system based on certain
fundamental principles from which particular
rules may be deduced. Naturally, no system
of law is perfectly self-consistent, but any
rule that could not be fitted into the analysts
framework was dubbed an historical accident
or logical anomaly which (it was predicted)
would soon disappear.
But the analysts
assumed that logical self consistency was
the sole end of the law. Clearly, law does not
exist for the sake of consistency, for many a
rule that is theoritically anomalous is based
on sound views of public policy.
Thus, criticism of the analytical school
emphasizes two very significant truths for
jurisprudence:
1. The law that is does not exist as a
perfectly proportioned body of rules deduced
from a few leading principles. The social
pressures of the past have led to many
convenient anomalies being adopted. Hence
any attempt to reconcile the rules on logical
ground easily develops into a study not of
the law that is but of the law that should be,
if logic were to prevail.
2. It is extraordinarily difficult for any school
to resist setting up an ideal which can be
made the basis for constructive criticism of
the law. The influence of their work was
such, however, that their insistence that
lawyers should be concerned with law that is,
combined with the dogma that judges do not
make law, led to a wasteful argument about
whether or nor judges do make law when ion
fact judges do make law.
The analytical positivists still affirm the
Austinian belief that:
Law can and ought to be made the
subject of study separately from morals;
Can be seen as a system of rules with a
logic of its own capable of more
satisfactory elucidation;
The methods of linguistic analysis
pursued by the philosophers can be
employed in jurisprudence to clear up
many puzzles which have troubled legal

theorists, and to produce


thinking for lawyers generally.

clearer

KELSENs PURE THEORY OF LAW


LAW AND NATURE
LAW AS A PART OF MORALS
What is the relationship of law and morals?
This question has two meanings: One, what
is the relationship between the two? The
other, what ought it be?
The first question is sometimes answered by
saying that law by its very nature is moral,
which means that the behavior commanded
or prohibited by legal norms is also
commanded or prohibited by the moral
norms. Furthermore, that if a social order
commands a behavior prohibited by morals
or prohibits a behavior commanded by
morals, this order is not law, because it is not
just.
The question is also answered, however, by
stating that the law may, but need not be
moral, although the postulate is admitted
that the law ought to be moral, which means:
just.
If the question of the relationship between
the law and morals is understood as a
question concerning the content of law and
not as a question concerning its form; if it is
said that law according to its nature has a
moral content or constitutes a moral value;
then one asserts by these statements that
law is valid within the sphere of morals, that
the legal order is part of the moral order,
that law is moral and therefore by its nature
just.
RELATIVITY OF MORAL VALUE
But if an absolute value in general and an
absolute moral value in particular is rejected
from the point of view of scientific cognition,
because an absolute value can be assumed
only on the basis of religious faith in the
absolute and transcendent authority of a

deity; if one grants that under different


circumstances different behavior may be
considered good or evil, just or unjust, and
nothing has to be considered good or evil,
just
or
unjust,
under
all
possible
circumstances; if in short, one acknowledges
that moral values are only relative: then, the
assertion that social norms must have a
moral content, must be just in order to
qualify as a law, can only mean that these
norms must contain something common to
all possible moral systems, as systems of
justice.
In view of extraordinary heterogeneity,
however, no element common to the
contents of the various moral orders is
detectable.
All moral orders have only one thing in
common: that they are social norms, that is
norms, norms that order a certain behavior
of men directly or indirectly toward other
men. All possible moral systems have in
common their form, the ought: they
prescribe something, they have normative
character.
Morally good is that which
conforms with the social norm that
prescribes a certain human behavior; morally
evil that which is opposed to such a norm.
The relative moral value is established by a
social norm that men ought to behave in a
certain way.
Under these presuppositions the statement
law is moral by nature does not mean that
law has a certain content, but that it is norm
namely a social norm that men ought to
behave in a certain way. Then, in these
relative sense, every law is moral: every law
constitutes a relative moral value. And
this means: The question about the
relationship between law and morals is not a
question about the content of the law, but
one about its form.
The law constitutes a value precisely by the
fact that it is a norm; it constitutes the legal
value, which is a (relative) moral value;
which merely means that the law is a norm.
SEPARATION OF LEGAL
ORDERS

AND

MORAL

If it is assumed that law is moral by nature,


then, presupposing an absolute moral value,

it is meaningless to demand that the law


ought to be moral. Such a postulate is
meaningful only if the legal norms does not
depend on their conformity with the moral
order.
It is paramount and cannot be emphasized
enough to understand that not only one
moral order exists, but many different and
even conflicting ones; and that above all, the
judgement of what is morally good or evil,
morally justifiable or unjustifiable, is subject
to continuous change, as is the law, and that
a legal order that at the time of its validity
may have conformed with the postulates of
the moral order then prevalent, may still be
judged to be immoral today.
The thesis rejected by Pure Theory of Law:
That law by its nature must be moral and
that immoral social order is not a legal
order, presupposes an absolute moral
order, that is, one valid at all times and
places.
Otherwise it would not be
possible to evaluate a positive social
order by a fixed standard of right and
wrong, independent of time and place.
In its actual application by the science of
law prevailing in a certain legal
community, this thesis amounts to an
uncritical justification of the national
coercive order that constitutes this
community. The dubious standard of an
absolute morality is applied only to the
coercive order of other nations. From the
point of view of science of law it must be
rejected because it is not the task of this
science to justify the law by absolute or
relative morals; but to know and describe
it.
COMMENTS BY PATON ON THE PURE
SCIENCE OF LAW
Kelsen wishes to free the law from the
metaphysical mist with which it has been
covered at all times by the speculations on
justice or by the doctrine of ius naturae. He
desires to create a pure science of law,
stripped of all irrelevant material, and to
separate jurisprudence from the social
sciences as rigorously as did as the analysts.
So the jurists, if he is to be scientific, must
study the legal rules abstracted from all
social conditions. Kelsen refuses to define

law as a command, for that introduces


subjective and political considerations and
he wishes his science to be truly objective.
Kelsen wishes to separate the realm of
jurisprudence from the natural sciences. The
latter deals with cause and effect. Law on
the other hand does not attempt to describe
but rather to prescribe certain rules, to lay
down standards of action which men ought
to follow.
For Kelsen, we cannot adopt the easy
method of defining law:
The modern tendency to regulate so
many of the affairs of the private citizen
means that the sphere of law is daily
increasing.
Justice is not a satisfactory concept for a
science of pure law, as justice is
irrational ideal that is, it cannot be
clearly defined by reason.
Justice for
many rules may be unjust, but they do
not therefore cease to be law.
The law does not state what actually does
happen, but lays down what ought to
happen; yet if the legal order is to be
effective, it must secure a certain measure of
acceptance.
The sphere of jurisprudence, then, is a study
of the nature of this hierarchy of norms,
validity of each norm depending on its being
laid down in accordance with a superior norm
until we reach the final norm which imposes
an obligation on a particular individual.
It is difficult to appreciate the significance of
Kelsens work until the application of theory
is understood, but for the present we are
concerned only with the bearing of his theory
on the problem of the boundaries of
jurisprudence. His claim that he has created
an impartial and universal science is
justified, but we are not left with the dry
bones of the law deprived of the flesh and
blood which give them life. Kelsen is not
alone in his disgust at politics masquerading
as jurisprudence.
Kelsen is correct in showing that law is a
weapon that may be used to effect many
end.

Kelsens work is also valuable in its emphasis


that in executing the norms of law the judge
has much discretion it is impossible for any
general rule to provide for all contingencies,
and the general rules must be made precise
by those who have the duty of applying
them. But, in order to maintain the air of
impartiality, Kelsen regards as outside the
scope of jurisprudence all discussion of
natural law, and all the examination of the
sources whence the judge draws his rules
when there is no authority in point. This
leaves the science of law very pure, but
deprives it of all interesting contact with life
itself. To exclude the whole of sociology and
of ethics leaves jurisprudence but a mental
exercise in abstract notions.
Kelsens methods does not even even give
us a true picture of law, for jurisprudence
must go beyond the formal hierarchy of
norms to study the social forces that create
law. The doctrine of natural law has certainly
been abused, but is jurisprudence therefore
to ignore the whole question of ethics?
The pure science of law is narrow one, and it
must be complemented by other and broader
approaches.

CHAPTER VI
THE FUNCTIONAL SCHOOL

THE SCOPE AND PURPOSE OF


SOCIOLOGICAL JURISPRUDENCE
By Roscoe Pound
SCHOOLS OF JURISTS AND METHODS OF
JURISPRUDENCE
It has been possible to divide the jurists into
three principal groups:
1. Philosophical School
1.1. 18th Century Law-of-Nature School;
1.2. Metaphysical School during the
first half of 19th century; and,

1.3.

Social-Philosophical School the


Neo-Hegelians seems to have the
most fruitful program
2.
Historical School
2.1. German Historical School; and
2.2. English Historical School
3.
Analytical School

hold that the living organs of law are


doctrinal writing and judicial decision,
whereby the life of a people, expressed in
the first instance in its traditional rules of
law, makes itself felt in a gradual
development by molding those rules to the
conditions of the present.

Instead of a further variation of one of the


old creeds, a wholly new creed is framing,
may be styled the: Sociological School.

Hence, the historical


characterized thus:

1. ANALYTICAL JURISPRUDENCE
The analytical jurists pursues a comparative
study of the purposes, methods and ideas
common to developed systems of law by
analysis of such systems and of their
doctrines and institutions in their matured
forms.

Putting differences and taking of


diversities

Hence, it is appropriate to a developed


system only.
In its crudest form, this is expressed in
Austins dogma that a law is a command.
The kernel of it is that law is a product of
conscious and increasingly determinate
human will.
The Analytical School characteristics may be
said to be:
1. They consider developed system only;
2. They regard the law as made consciously
by lawgivers, legislative or judicial;
3. They see chiefly the force and constraint
behind legal orders;
4.
For them the typical law is a statute;
5.
Their philosophical views are usually
utilitarian or teleological.

jurists

may

be

1. They consider the past rather than the


present of the law;
2. They regard the law as something that is
not and in the long run cannot be made
consciously;
3. They see chiefly the social pressure
behind legal rules;
4. Their type of law is custom;
5. As a rule, their philosophical view have
been Hegelian.
3. PHILOSOPHICAL JURISPRUDENCE
The philosophical jurist studies the
philosophical and ethical bases of law, legal
systems, and particular doctrines and
institutions, and criticizes them with respect
to such bases.
In comparison with the analytical and
historical jurists, the philosophical jurists--1. Are more apt to consider the ideal future
of law than its past or present;
2. Believe that when law is found, its
principles may, and as a matter of
expediency, should be stated definitely and
in certain form;
3. Look at the ethical and moral bases of
rules rather than at its sanction;
4. Have no necessary preference for any
particular form of law;
5. Hold very diverse philosophical views.

2. HISTORICAL JURISPRUDENCE

4. RISE OF A SOCIOLOGICAL SCHOOL


THE SOCIAL PHILOSOPHICAL SCHOOL

In opposition to the analytical jurist, the


historical jurist and philosophical jurist agree
that law is found, not made.

The first movement in the new direction was


from the then dominant historical school in
Germany.

They deny that law is a product of a


conscious or determinate human will. They

1. THE POSITIVES THE MECHANICAL


STAGE

Like the historical jurist, the first type of


sociologist looked at law in its evolution, in
its successive changes, and sought to relate
these changes to the changes undergone by
the society itself.
A later form of what is essentially the same
type of juristic sociology is to be seen in
attempt to state all jural experience solely in
terms of economics. The doctrine has been
set forth in its most extreme form in
America:
Law is the resultant of forces which arises
from the struggle for existence among men.
The dominant class will shape the law to
favor themselves

thesis that psychic forces are as real as


physical forces; and,
3. Tardes demonstration of the extent to
which imitation is a factor in development of
legal institutions.
4. THE STAGE OF UNIFICATION
At the very end of the last century
sociologists were coming to see that no one
of the methods worked out was the whole of
sociology. A few years later, Ward
enumerated twelve leading sociological
conceptions or unitary principles each of
which had been put forward with large
claims to being in and of itself the science of
sociology.

The earlier type of sociological jurist service


was in twofold:

THE PRESENT STATUS OF SOCIOLOGICAL


JURISPRUDENCE

1. Displacing the individualist starting-point


by insisting upon the importance of the
group, of the class, of the compact
plurality;
2. Compelling us to relate the law more
critically to other social phenomena.

Sociological jurists today insists upon six


points:

2. THE BIOLOGICAL STAGE


Darwin had made evolution the central idea
in scientific thought.
The jurists were attractted by the conception
of natural selection: the end of law is to give
free play in an orderly and regulated manner
to the elimination of the unfit, to further
selection by a well-ordered social struggle for
existence.

1. Study of the actual social effects of legal


institutions and legal doctrines;
2. Sociological study in connection with legal
study in preparation for legislation. But it
is not enough to compare the laws
themselves. It is much more important to
study their social operation and the effects
which they produce, if any, when put in
action;
3.

Study of the means of making legal


rules effective;

4.

A means toward the end last considered


is a sociological legal history;

5.

The importance of reasonable and just


solutions of individual causes, too often
sacrificed in the immediate past to the
attempt to bring about an impossible
degree of certainty;

6.

Make effort more effective in achieving


the purpose of law.

3. THE PSYCHOLOGICAL STAGE


Three influences combined to turn the
attention of sociological jurists towards
psychology:
1. Study of group personality and group will,
leading to a psychological movement in legal
and political philosophy;
2. The complete change in method in the
social sciences which resulted from Wards

Comparing sociological jurists with insists of


the other schools we may say:

1. They look more to the working of the law


than to its abstract content;
2. They regard law as a social institution
which may be improved by intelligent human
effort;
3. They lay stress upon the social purposes
which law subserves rather than upon
sanction;
4. They urge that legal precepts are to be
regarded as guides to result which are
socially just and less as inflexible molds; and
5. Their philosophical views are very
diverse.

If you want to know the law and nothing else,


you must look at it as a bad man, who cares
only for the material consequence which
such knowledge enables him to predict, not
as a good one, who finds his reasons for
conduct.
Nowhere is the confusion between legal and
moral ideas more manifest that in the law of
contract. The duty to keep contract at
common law means a prediction that you
must pay damages if you do not keep it. If
you omit a tort, you are liable to pay a
compensatory sum.

COMMENTS BY PATON ON THE


FUNCTIONAL SCHOOL

The fundamental tenet of this school is


that when we cannot understand what a
thing is unless we study what it does.
What attitude should jurisprudence take
to the question of the values that direct
the development of law? Kelsen would
retain the scientific method. But Pound
considers that they must be analyzed
thoroughly in order to understand legal
development. For Pound, law is also a
process of balancing conflicting interests
and securing the satisfaction of the
maximum of wants with the minimum of
friction.

CHAPTER VII
THE REALIST SCHOOL
THE PATH OF THE LAW
By Oliver Wendel Holmes
When we study law we are not studying a
mystery but a well-known profession. We are
studying what we shall want in order to
appear before judges, or to advise people in
such a way as to keep them out of court.
The means of the study are body of reports,
of treatise, and of statutes.
A legal duty so called is nothing but a
prediction that if a man does or omits certain
things he will be made to suffer in this or
that way by judgment of the court.

COMMENTS ON THE REALIST SCHOOL BY


PATON
The realists defined law not as a set of
logical propositions but in terms of official
action.
Until a court has passed on certain facts,
some realists argued, there is no law in the
subject yet in existence, for the opinion of
lawyers is only a guess as to what the courts
will decide. Since law is define in terms of
official action (and not of the rules which
should guide action), it follows that any force
that will influence the judge in reaching the
decision is a fit subject for jurisprudence.
Law can have a little weight in legal
evolution. Society is always changing, moral
judgments are developing, and the law
therefore is in a state of flux.
Realists insisted that to know what a thing is
one must see what it does; that rules of law
must be assessed by reference to their
consequences.
Perhaps the most immediate and most
important influence of American legal
realism was upon legal education. The
concentration about the problems to be
solved rather than upon the formal and
authoritative explanations of how they had
been, or ought to be, solved, changed the
whole nature of legal education.
Those changes brought decline among law
students in their understanding and
appreciation of the internal discipline and

coherence of systems of law viewed as rules


and principles.
COMMENTS BY JEROME FRANK, WHAT
COURTS DO IN FACT
How then a judge arrive at his decision? He
does so by a hunch as to what is fair and
just or wise or expedient.
According to Frank:
1. Specific enforceable decisions in concrete
cases are of the essence of
the lawyers work;
2. Specific decisions are the result of the
judges hunches;
3. To predict or bring about decisions, one
should know about what
produces judicial hunches;
4. The so-called legal rules and principles
are some of many hunch producers;
5. Whatever may be the stimuli to the
making of those hunches, may loosely
describe the judges personality;
6. Neither the background stimuli nor the
congeries labelled judges personality
are stated or statable in terms of the
conventional legal rules and principles;
7. The failure to recognize the composite
nature of this hunch and the artificial
breaking up of the decisional process into
rules and facts accounts in part for
the delusion of the formalist as the
exclusive value of the rules.
8. The formalist errs also in overlooking that
circumstance that it is impossible to
predict what cases will be contested
and the subjective nature of the facts of
a contested case and the resulting
unchangeability of the judges statement
of those facts.
9. The formalist conveniently neglects the
jury.

CHAPTER VIII
THE COMMUNIST THEORY
KARL MARX
Marxs ideas, particularly the prospect of
inevitable liberation of the working classes
from bondage and oppression through
revolutionary
action
made
a
strong
impression on Russian radicals.
LENIN ON MARX
Marxs teaching is complete and harmonious,
providing men with a consistent view of the
universe, which we cannot be reconciled with
any superstition, any defence of bourgeois
oppression.
The three components of Marxism are:
1. The philosophy of Marxism is materialism.
Provided the humanity,
1 and especially the working class, with a
powerful instrument of knowledge.
2. Marx devoted all the greater attention to
the study of economic order,
having recognized that it is the
foundation upon which the political
superstructure is erected, i.e. capitalist
society. The doctrine of surplus value is
the cornerstone of the economic theory of
Marx.
3.

After the overthrow of serfdom, freedom


signified a new system of oppression
and exploitation of toilers.
Marx
answered this with the doctrine of the
class struggle, to enlighten and organize
for the struggle, from the power capable
of sweeping away the old and
establishing the new.
CHAPTER IX

THE POLICY SCIENCE SCHOOL LEGAL


EDUCATION AND PUBLIC POLICY:
PROFESSIONAL TRAINING IN THE PUBLIC
INTEREST
By Harold D. Lasswell and
Myres S. Mcdougal

The reform of legal education must become


more ever more urgent in a revolutionary
world of cumulative crises and increasing
violence.
Adequate training must therefore include
experiences that aide the developing lawyer
to acquire certain skills of thought:
1. Goal thinking to promote the major
value of democratic society and
to reduce the number of moral mavericks
who
do
not
share
democratic
preferences;
2. Trend-thinking this considers the shape
of things to come orient
himself correctly in contemporary trends
and future probabilities.
3. Scientific-thinking to build up scientific
knowledge.
COMMENTS BY CRISOLITO PASCUAL ON
THE POLICY SCIENCE OF SCHOOL OF
JURISPRUDENCE AND ITS THEORY OF
THE NATURE OF LAW

The rule and measure of human acts is the


reason. Reason has its power of moving
from the will.
Every act of reason and will in us is based on
that which is according to nature for every
act of reasoning is based on principles that
are known naturally.
Justice has its source in nature; thence
certain things came into custom by reason of
their utility; afterwards these things which
emanated from nature and were approved by
custom, were sanctioned by fear and
reverence for the law.
In temporal law there is nothing just and
lawful, but what man has drawn from the
eternal law.
First precept of law: Good is to be done and
ensued, and evil is to be avoided.
Any point deflecting from the law of nature, it
is no longer a law but a perversion of law.

COMMENTS BY JACQUES MARITAIN ON


ST. THOMAS AQUINAS

The goal of the law is the creation of a world


community conceived in mutual respect,
understanding and rectitude, where the
different representative social values or
desirable objects of human desires are
widely and equitably shared.
The law
becomes meaningful only when considered
as the vehicle or machinery to realize the
end in view.

St. Thomas succeeded in constructing a


philosophical and theological wisdom so
elevated in immateriality that it is really free
of every particularization of race or
environment.
His metaphysical principles
were based upon objective reality.

CHAPTER X
NATURAL LAW
ST. THOMAS AQUINAS, THE SUMMA
THEOLOGICA

There has been a sudden increase of law


schools, but a meager few have ever
attempted seriously what legal philosophy
they should stress to students. One of the
causes is the confusion that there have been
many different approaches to what proper
end of law is.

Law is a rule and measure of acts, whereby


man is induced to act or is restrained from
acting.

FOR A REVIVAL OF
DOCTRINE
IN
JURISPRUDENCE
By J0rge R. Coquia

NATURAL LAW
PHILIPPINE

There is no denying of the fact that in each


attempt to enunciate a new philosophy of
law, human experience has led to insoluble
difficulties and to inescapable inadequacies.

The ideological conflicts in our times have


forced the return to the natural law way of
thinking thus giving truth to what Gilson
once said that the natural law buries its own
undertakers.