CHAPTER 1: THE GENERAL NATURE OF

LAW!
Law!
* in its wides sense means any rule of action,
norm of conduct, or expression of uniformity.!
* applicable discriminately to all objects of
creation, whether animate or inanimate, rational or irrational, as well as intangible processes.!
* Other laws: divine law, moral law, physical
law, economic law.!

Divine Law - system of rules or precepts which

regulates the operations of the universe accdg
to the will and command of God!

ADVOCATES OF NATURAL LAW /

JUS NATURALE: There exist certain fundamental precepts of life which are discoverable
through divine inspiration and the use of reason. !

CICERO:!
There is indeed a true law (lex), right reason,
agreeing with nature, diffused among all
men, unchanging, everlasting it is not allowable to alter this law, nor to derogate from
it, nor it can be repealed.!

MORAL LAW!
(in the sense of positive morality) is the aggregate of all the rules of human conduct growing
out of the collective sense of right and wrong
of the community.!

POSITIVE LAW !
* often overlaps with Positive Morality -!
* governs with the relations among men but
only with certain limits;!
* there is a wide field outside of these limits
with which it does not deal.!
* the appropriate subject matter of jurisprudence!

LAW

MORALITY

deals with outward acts

concerned with inner

motives and intentions

enforced by the
physical force of the
state

enforced not be force

but by public opinion
and ones own
conscience

!
!

PHYSICAL LAW (Laws of Physical Science)!

* comprises the methods of uniformity and
regularity in the operations of nature!
* includes laws of gravitations and the laws of
chemical combinations!
* expressions of a certain order in nature accdg to which certain results always follow
certain causes!

ANALOGY BETWEEN LAWS OF PHYSICAL

SCIENCE & other laws:!
* there exist a uniformity of succession and a
universal application in the former which resemble the uniformity and universality of the
conduct of me produced by the law of the
land.!
* sunrise follows sunset as regularly as men
pay taxes!

Other laws:!
divine law theology!
moral law - ethics!
natural law -metaphysics!
physical law - physics!

STATE LAW!
* also called positive law, civil law, municipal
law, imperative law!
* it is either in the abstract and generic sense
or in the concrete and specific sense!
* first connotation: as the sum total of individual laws taken together , for example Jurisprudence is the science of law or the
common law of England!
* second connotation: when used to denote a
particular statute or legal rule, thus, the divorce law.!
* in Spanish, DERECHO, signifies law in the
abstract; LEY, law in the concrete.!
* In Latin, we have JUS and LEX;!
* In French, DROIT and LOI!
* in German, RECHT and GESETZ!

DEFINITION OF STATE LAW - !

In Roman Law - used to denote the law peculiar to the City of Rome (jus civile) as opposed
to the law comment to all nations (jus gentium)!

SIR FREDERICK POLLOCK!

* the greater have been a lawyers opportunities of knowledge, and the more time he has
given to the study of legal principles, the
greater will be his hesitation in face of the
apparently simple question, what is law?!

3 PRINCIPAL SCHOOLS OF JURISPRUDENCE!

1. analytical or imperative!
2. the historical!
3. the sociological!

Analytical or Imperative School of Jurisprudence !

HOBBES: The speech of him who by right
commands somewhat to be done or omitted!
AUSTIN: A rule laid down for the guidance of
an intelligent being by an intelligent being having power over him, or a rule established by
political superiors to political inferiors.!
HOLLAND: a general rule of external human
action enforced by a sovereign political authority.!
AMOS: a command proceeding from the
supreme political authority of a state and addressed to the persons who are the subjects of
that authority.!

JOHN AUSTIN, English jurist, recognised

founder of the modern analytical or imperative
school of jurisprudence.!
!
- accdg to this school, a law is a command which emanates from the political authority in a state.!
!
- Law is the abstract is the aggregate of
all these commands of the sovereign power in
a state. !

Concept of Law of the imperative school implies the existence of a state or at least of a
political society mature enough to have a machinery for the making and the enforcement of
commands.!
* The opponents of this view ask, what about
the communities which have not reached
such a degree of maturity? They also have
law. Even with respect to the highly developed political societies with mature systems
of law, the theory of the imperative school is
criticised by the adherents of the historical
school who claim that it fits only one class of
law, namely statutes; it ignores the law derived from custom and precedent.!

HISTORICAL SCHOOL OF JURISPRUDENCE (FRIEDRICH CARL VON SAVIGNY, a

German Jurist)!
* essence of doctrine of this school is that law
is the result of unconscious development.!
* law evolves by a slow process in the same
manner as does language.!

* it is a growth.!
* It finds its roots in the instinctive sense of
right of the people.!
* the foundation of the law has its existence,
its reality, in the common consciousness of
the people. !
* This existence is invisible. !
* We become acquainted with it as it manifests itself in external acts, as it appears in
practice, manners, and custom. !
* By the uniformity of a continuous and continuing mode of action, we recognise that the
belief of the people is its common root, and
not mere chance.!
* Thus custom is the sign of positive law, not
its foundation.!
* CARTER declares, Law is custom.!

Antagonists of the historical school:!

* it is not true that all customs are founded
on the inner beliefs and convictions of the
community; some customs are based on
the interests of a strong minority, for example, slavery. Nor all the rules the product
of unconscious development; some rules
are obviously the result of conscious effort,
especially in statute-law governed countries. !

SCHOOLS OF JURISPRUDENCE:!
IMPERATIVE VS HISTORICAL!
Imperative School of
Jurisprudence

Historical Schools of
Jurisprudence

Essence of law is that it Essence of law is that it

is imposed upon
develops within society
society by a sovereign
of its own vitality.
will
Law is artificial

Law is spontaneous

the picture is that of an

omnipotent authority
standing high above
society, and issuing
downwards its behests

growing upwards,
independently of any
dominant will.

!
!

SOCIOLOGICAL SCHOOL OF JURISPRUDENCE!

- defines law not from the point of view of its
origin or the manner of its creation but from
that of its purpose.!
- followers of this school turn their attention
not to an analytical examination of abstract

legal precepts but to a consideration of their

objective.!
RUDOLPH VON JHERING and DEAN
ROSCOE POUND are regarded as the two
most prominent advocates of this school.!
accdg to them law is a means to an end.!
that end is the adjustment of the conflicting
interests in society.!
puts its emphasis on groups each having its
own special interests or behavioristic force,
coalescing and colliding with the interests
and behaviour of other groups. !
the problem with this is: how to balance
these clashing interests so as to secure the
satisfaction of the maximum of wants with
the minimum of friction.!
purpose of law:!
- a body of rules for the systematic and
regular public administration of justice.!
- Law is a peaceable ordering of the external relations of men and their communities to each other.!
- promotion of justice. it is the establishment of order and regularity in society.!

SANCTION OF STATE LAW:!

an instrument of coercion to compel obedience to, and compliance with, these rules.!
* It consists of penalties or evils which the
state with the aid of physical force, if necessary, will inflict on those who violate the law.!

SANCTION - is penal if its object is to punish

the offender and to deter merit from committing the same offence,!
- it is remedial if its object is the indemnification of the person who has suffered from the
violation of the law.!

CHAPTER II: THE SOURCES OF LAW!

The main sources of law:!
1. legislation!
2. precedent!
3. custom!

* Other sources: principles of justice and equity, decisions of foreign tribunals, professional opinion, and religion. Of these, in our
jurisdiction legislation is the one absolutely
binding. !
* Precedent, custom, principles of justice and
equity are only supplementary; they are applied by the courts only in the absence of
statute.!

* Decisions of foreign tribunals, professional

opinion, and religion are merely persuasive;
they influence the decisions of the courts
only indirectly.!

!
!

Legislation - consists in the declaration of legal

rules by a competent authority.!
- preponderant source of Phil Law!

!
!