SidNotes

Philosophy of Law (Obieta)

No one saves us but ourselves. No one can and no one
may. We ourselves must walk the path.
Buddha
We are what we think. All that we are arises with our
thoughts. With our thoughts, we make the world.
Buddha
To conquer oneself is a greater task than conquering
others
Buddha

SidNotes| 1

PHILOSOPHY OF LAW
Nuremberg Trials

Fairness of Nuremberg Trials were put in question because the trials violated the
prohibition against ex post facto laws because they were tried and charged for acts
which were not punishable by law when they were committed.
The Germans being meticulous record keepers, there was no count of the Nuremberg
Trials that could not be proven by books and records.
The four counts indicted in the Nuremberg Trial are crimes against humanity, crimes
against peace, war crimes and conspiracy in plotting a war of aggression
The fairness of the Nuremberg Trials was put in question because it could be viewed as
high politics masquerading as law

Is Law Necessary

On the matter of necessity of law, Augustine taught that law was a natural necessity to
curb mans sinful nature/an indispensable restraint to curb inclination to evil.
The law is not power but restraint on power
Anarchism means literally a society without an arkhos without a ruler.
Marx envisaged the overthrow of the capitalist society by a violent revolution of the
oppressed proletariat.
In the broadest sense, it is true that the law is a logical development of everything else.

Commented [S1]: The Nuremberg Trials were criticized

for violating the prohibition against ex post facto laws.
Why?
Commented [S2]: Asked in True or False
Commented [S3]: The Indictment in the Nuremberg War
Trial contained Four Counts. Name them.
Commented [S4]: Asked in True or False Midterms 20092010

Commented [S5]: On the matter of necessity of law,

Augustine taught that law was a _______
Commented [S6]: What is the role of law for those who
view man as the incarnation of evil?
Commented [S7]: What is meant by anarchism?
Commented [S8]: Was Karl Marx an anarchist? Explain.

Law and Force

The deeply felt human need for order demands the combination of the essential
elements of authority and force (coercion).
Aquinas provided an important basis for secular view of law as a potentially beneficent
force for setting man upon the path of social harmony and welfare.
The notion of authority acknowledged as legitimate is derive from any link with moral
obligation.
There is a moral duty to obey the law because the law represents legitimate authority.
Sanctions, in law, refer to any coercive process by which the law seeks to impose its
will upon an offender or who is someone at fault who has failed to comply with a legal
order or judgment.
A sanction does not necessarily involve imposition of a physical penalty in the form of
punishment.
Authority or legitimate domination may take three forms: 1. Charismatic 2. Traditional 3.
Legal
The belief in the legitimacy of legal domination involves a circular argument: laws are
legitimate if they are enacted and an enactment is legitimate if it conforms to the rules
which prescribe the procedures to be followed.
Harm principle states that the only purpose for which power can be rightfully exercised
over any member of a civilized community against his will is to prevent harm to others

SidNotes| 2

Commented [S9]: According to Lloyd, the deeply felt

human need for order demands the combination of two
essential elements. What are those two elements?

Commented [S10]: Q: Much of the aura of legitimacy

which surrounds the authority of law is associated with a
certain belief concerning morality. What is that belief?

Commented [S11]: Authority or legitimate domination

may take three forms. Name the three forms.

Commented [S12]: In one sentence, enunciate in one

sentence, John Stuart Mills harm principle

All acts that can cause harm on others in any form are covered by the harm
principle

Commented [S13]: By harm did Mill mean only

personal physical injuries? Explain briefly

Law and Morals

The Hebraic view of divine law really resulted in equating law with morality
The Greek view is that human law may conflict with moral law but the citizen must still
obey the law of his state.
The close parallelism between codes of morals and of law is sufficiently brought out by a
common feature of similarity (sameness) of the normative language that each employs
as set of conduct.
Rationalism is the idea that the universe governed by intelligible laws capable of being
grasped by the human mind.
Rationalism entails the idea of a moral law of a rational kind whose imperative
character derives from the fact that mans reason must necessarily accept the rational
solution as the moral or true one.
Rationalism is the belief in the possibility of attaining true understanding of the world
through the power of human reason guided by human observation.
The libertarian proposition, according to John Stuart Mill, states that the law should
not intervene in matters of private moral conduct more than necessary to preserve public
order and to protect the citizens against what is injurious and offensive.
The whole idea of guilt in criminal law is linked with the idea of moral responsibility and
in this way, morals reinforce the authority of the law and the duty to render obedience to
its decrees.
For Martin Luther King, the purpose of the direct-action program is negotiation. It is
wrong to use immoral means to attain moral ends. It is just as wrong, perhaps even
more so, to use moral means to preserve immoral ends.
The two spheres of lawful authority and morality are separable and distinguishable.
A law is just when it squares with moral law or the law of God and it is unjust when it is
out of harmony with moral or natural or eternal law.
The public morality expressed in law is not necessarily religious morality.

Natural Law and Natural Rights

Natural law philosophers argue that law is that which reflects the built-in sense of right
and wrong that exists within every person at birth
Stoicism stressed the universality of human nature and the brotherhood of man and
emphasized reason as an essential characteristic of humanity
Christian philosophers readily adapted Stoic natural law theory.

Legal Positivism

Legal positivists have consistently urged that human law must be regard as valid and
entitled to obedience whatever its moral content.
For positivists, human laws are valid and are binding even if contrary to the laws of God.

SidNotes| 3

Commented [S14]: Explain briefly why the Hebraic view

of divine law resulted in equating law with morality.

Commented [S15]: Q: The close parallelism between

codes of moral and of law is sufficiently brought out by a
feature common to both. What is that feature?

Commented [S16]: Asked in True or False and in multiple

choice

Legal positivism is a theory which treats the autonomy of each spheres of law and
morality as exclusive
On the whole, positivist shares with the natural lawyer a rationalist approach to the moral
values of his society
Both natural law and legal positivism are rational creeds which may be contrasted with
the various forms of irrationalism which have emerged in modern times i.e. Fascism and
Nazism.

The Idea of Law by Holmes

Law means the prophecies of what the courts will do in fact

Nowhere is the confusion between legal and moral ideas more manifest than in the law
of contract.
In the law of contract the use of moral phraseology led to confusion.
Confusion of thought can result from assuming that the rights of man in a moral sense
are equally rights in the sense of the Constitution and the law
A legal duty 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.
The law, if not a part of morality, is limited by it.
The law is the witness and external deposit of our moral life
Holmes held that logic is not the only force at work in the development of law.
A statute would be empty words, not because it was wrong, but because it could not be
enforced.

Commented [S17]: What does Holmes mean by law?

Commented [S18]: Nowhere is the confusion between
legal and moral ideas more manifest than _____?
Commented [S19]: According to Oliver Wendell
Holmes, what is the principal reason for the confusion
of morality and law?

Commented [S20]: Which of the following statement can

be attributed to Holmes?

People v. Veneracion

It is a well-settled rule that the courts are not concerned with the wisdom, efficacy and
morality of laws.
That question falls exclusively within the province of the Legislature which enacts them
and the Chief Executive who approves or vetoes them. The only function of the judiciary
is to interpret the laws and, if not in disharmony with the Constitution, to apply them.
-------------------------------------------------MIDTERMS------------------------------------------

Commented [S21]: Asked in True or False

Criticize the statement.
Explain briefly whether correct or not.

Law and Justice

Justice is the more general purpose the law everywhere aims at achieving.
Law must be assimilated to justice and law without justice is a mockery, if not a
contradiction.
For Plato, the microcosm of the just man is a reflection of the pattern of the just society.
Platonic justice views that every person or thing has its own proper sphere in the order
of things and justice consists of conforming to that sphere (like a doctor is within the
sphere of healing the sick)
Platos system seems based on the fallacy that each man is by nature fitted for one job
or function and that there is such a job or function adapted to each persons natural
attainments or aptitudes (some are born naturally as slaves and only fitted to serve)

SidNotes| 4

Commented [S22]: What is meant by Platonic Justice?

For the Greeks, there is a basic connection between justice and equality.
Among the Greek philosophers, justice essentially embodied the idea of inequality.
o Because the lack of natural equality between human beings called for different
treatment
The attaining of equality, not the preserving of inequality, that modern moral and legal
philosophy treat as the vital function of justice
In modern times, equality has been regarded as the very essence of justice.
This idea of justice being linked with equality of treatment owes much to that association
of justice with legal proceedings.
Formal principle of equality: A law applied without discrimination applied equally in
all situations and to all persons whether rich or poor without fear or favor may be
regarded as embodiment of justice.
o Not to be understood as treat everyone alike regardless of individual differences
This may lead to condemnation of a mentally incapacitated person to the
same punishment for non-mentally incapacitated
o What is really meant is that like shall be treated alike. Everyone within a same
category is to be treated in the same way.
o Persons who are equal should be treated equally and those who are different
should be treated differently
Formal justice requires equality of treatment in accordance with classification laid down
by the rules but does not state how people are to be classified or treated.
o Formal justice is an empty category. If it is to be given specific content, other
principles than mere formal equality are needed.
A certain measure of coherence and regularity is a vital feature of any legal system but
no exact standard can be laid down by this measure is to be judged.
Three types of legal injustice:
o The law is so closely linked in the general opinion of justice with the idea of
justice and it is treated as synonymous to justice.
Legal injustice is committed when a case is decided contrary to what the
law lays down.
o The law is not duly administered in the spirit of impartiality it requires
o When law, though perfectly impartially administered, is itself unjust if judged by
whatever value system applied to test the substantial justice of the rule.
The three features of formal justice are (1) existing and applicable laws laying how
people are to be treated (2) general in character (generality) and (3) impartially
applied.

Commented [S24]: What is the principle of nondiscrimination?

Commented [S25]: What are the three features or

requisites of formal justice?
Probability of appearing in final exam: 80%

Law and Freedom

Man is born free; yet everywhere he is in chains

Commented [S23]: For the ancient Greeks, justice

essentially embodied the idea of inequality. Why?

Open society is where a wide field left for personal decision and for assuming of
individual responsibility

SidNotes| 5

Closed society is an almost tribal or collectivist pattern where the community is

completely dominant and the individual counts for little or none.
Negative freedom is concerned with organizing the pattern of society that a large
sphere still remains for individual choice and initiative compatible with public welfare.
despite the restraints and limitations placed
Positive freedom is in the nature of spiritual conception, implying maximum opportunity
for self-realization of individuals of their full capacity as human beings
Main values expressed in legal freedom
1. Equality and democracy
2. Freedom of contract
3. Right of property
4. Right of association
5. Freedom of labor
6. Freedom of want and social security
7. Freedom of speech and of the press
8. Freedom of religion
9. Personal freedom
10. The rule of law
It is apparent that rules of law which are not expressive of the mores or standards of
conduct which prevail in a given community are likely to remain dead letters.
If law is to be an effective focus for giving expression of fundamental values, it must be
regarded as a positive directing force which can be used as an instrument of social
progress.
Problem of Conflicting Values states that conflicts may arise between the various
types of fundamental rights accepted in modern democratic state and the values which
underlie these.
o Freedom of speech conflicts with right of citizen to be protected against intolerant
propaganda
The reduction principle of religious freedom expresses that religious belief is
indistinguishable from other types of belief so that neither free exercise clause nor the
establishment clause constrains government action any differently than the free speech
clause does.
Mandatory accommodation states exemptions from generally applicable laws are
required by force of the free exercise clause
Permissive accommodation refers to exercises of political discretion that benefit religion
and the Constitution neither requires nor forbids.

Law and Sovereignty

Sovereign in present usage is that person or body which is the supreme legislator in a
given community.
The power to change the law is the reason that such legislator is regarded as the
possessor of the ultimate legal authority in the state.

SidNotes| 6

Commented [S26]: Briefly distinguish between open and

closed society

Commented [S27]: Briefly distinguish between positive

and negative freedom
Commented [S28]: Lloyd enumerates and discusses 10 of
the main values expressed in legal freedom. Name at least
five (5) of these main values

Commented [S29]: According to Dennis Lloyd, what

usually happens to rules of law which are not expressive of
the mores or standards of conduct which prevail in a given
community?

Commented [S30]: Briefly explain what you understand

by The Problem of Conflicting Values

The modern idea of sovereignty is associated with supreme power of law-making

than with supreme executive or judicial authority.
Internal sovereignty is considered as that of supreme domestic legislator.
External sovereignty is much more like an absolute monarch under a customary system
of law who claims total freedom of action to act as his will or desire may direct.
State sovereignty meant each state was entirely free to regulate is relations with other
states i.e. right to declare war and annex territory of defeated state.
The fresh legal problem in international relations is how the unfettered sovereignty of the
national state could nonetheless be subordinated to international rules not derived from
any superior state or authority.
The command theory states that the law is what the sovereign commands and that
nothing can be law which is not commanded by the sovereign.
Justice Holmes: The life of the law is not logic but experience.

Commented [S31]: Asked in True or False Finals 20062007

Law and Society

Common-law tradition is not an inherently logical or systematic body of doctrine to be

entrusted to be entrusted to legal scientists and professors.
o It is essentially pragmatic art to be left to practical lawyers and judges who, as
men of world will know what to do for resolving disputes
Civil law has grown up largely as work of learned jurists and reflects a university tradition
of logical principles and ideas worked out deductively and systematically in a spirit of
rationalism.
A so-called free-law school rejects the idea that legal decisions could be based upon
rules at all but claims rather that such decisions are essentially a matter of policy and
choice.
Although fettered by a close network of seemingly ineluctable rules, the judge was really
free to apply them as his caprice, ideology, or sense of social need might direct.
There are two aspects of American realism. First, the technique of predicting decisionmaking. Second, a profounder understanding of the functioning of the legal system
According to legal realists, law is not the texture of subsisting rules but a mere technique
for predicting what decisions courts of law are likely to make.

Commented [S32]: Asked in True or False 2012-2013

Finals
Commented [S33]: Asked in True or False 2012-2013
Finals

The Judicial Process

If laws are to be fairly interpreted and impartially applied, it is obviously important

that the judiciary should enjoy an independent status and be free from the political
pressures engendered by association with either the executive or the legislature.
Realist viewpoint states what matters in law is not so much what courts say as
what they do.
o Stare decisis does not eliminate this process since courts has the power to
distinguish cases. Provides the courts with escape routes where the main road is
barricaded.
Civil law system started from the Justinians codification of Roman Law.
Developments of the law of negligence are good examples of judge-made law.

SidNotes| 7

Commented [S34]: Why should the judiciary be entirely

separate from the legislative and executive branches?
Commented [S35]: In the discussion on the Judicial
Process, what is meant by the Realist Viewpoint?

Commented [S36]: What historical event or occurrence is

generally regarded as the start of the civil law system?

Obiter dictum is something said passing in the form of a judicial comment made within
a judicial opinion but is unnecessary to the decision of the case and therefore not
precedential.
Ratio decidendi is the reason for the decision or the principle of law in which the decision
of the court is founded.

Conceptual Thinking of Law

The outstanding achievement of human language is the creation of a large number of

general concepts which provide the essential tools of human reflection, communication
and decision.
Platonic view: generalized terms or class descriptions refer to some actual ideal entity
which in fact exists on a higher plane of existence than the individual objects of the
class.
Class terms differ in a way that individual members of the class may be physical
entities/phenomena or mere abstractions, such as desire, belief or a group. (i.e. mere
abstraction like love, hope, freedom as compared to dogs, person, wealth)
Words are conceived as means of naming or sticking labels upon objects
An abstract conception may be treated not only as real entity but as a superpersonality, more real and more sublime than any actual perceived physical entity or
person (i.e. how we see juridical persons as having veil of corporate fiction, not really
there but we conceived as more real)
Hegelian conception: STATE as highest reality on earth, a sort of deified super-person
more real than all its constituent members and an embodiment of the highest ethical and
religious values of humanity
The law as a game = rules refer not to concrete realities but to mere figments of the
imagination
Paradox = the law as a game referring to mere figments of imagination but in another
sense, law is closely related to actual human social life and possesses a genuine
reality and not mere fictitious existence
A legal system is a normative system wherein human behavior is rendered intelligible
within its linguistic framework.
Most significant distinction between the law and a game is that rules and moves made
within a game are not in any way related to real life but occur solely within its own selfcontained context.
o Law, if it is a game, operates not with self-contained counters or pieces but with
rules and concepts related directly or symbolically to matters and transactions
occurring in real life. (a foul committed in a sports game vis--vis committing
murder within a legal system)
The game of life is not one regulated solely by legal rules but has endless other aspects
which may be within the field of normative systems or may be completely normless like
emotions and impulses.
The law is concerned to classify and regulate types of transactions which occur in real
life.

SidNotes| 8

Commented [S37]: Honestly, one of the most difficult

chapters in Lloyd. The discussion is too abstract and
highfalutin. Most of these are based on my understanding
so dont rely too much on this part.

Law steps in the realm of social life by defining and determining the rules governing civil
responsibility and builds a complex of rules into which classes of activities may be fitted
and controlled.
The law is not merely concerned with task of translating everyday occurrences into legal
terms.
Many fundamental legal concepts are to a large extent legal creations in their own right
with a vitality of their own and may set off a chain of social and economic reactions.
o Lloyds examples
concept of trust (property held by one party (trustee) for the benefit of
another)
limited liability of commercial company (Ltd., LLC, etc.)
intellectual property (patent rights, copyright, trademark)
Legal concepts tend to develop a life of their own which may lead to many unexpected
paths by their own vitality and the laws of their own inherent logic
Legal concepts like other symbols of mans creativity are apt to possess a vitality of their
own which may end by leading their authors instead of being led by the authors.
o Concepts are excellent servants but not always good masters.
o May result in the hardening of the arteries of the body of law; undue rigidity and
inability to adapt to new social situations; no alternative but to work out the strict
logical implications of the rules
Law is a great complex of rules, precepts, standards and principles in a process of
continuous but slow-moving flux, not just a static collection of ascertainable rules.

Some Leading Legal Concepts

Group personality is attribution of personality not just to an individual human being but
to group or associations. It is the treatment of such groups as persons in their own right
possessing continuity and a separate identity from the particular individuals who
composes the group.
o This is the underlying concept of juridical persons
American jurist Hohfeld made an important contribution to modern legal theory through
his analysis of the traditional legal pattern of rights and duties.
The traditional right-duty pattern can be split up into four distinct pairs of correlatives:
rightduty, libertyno-right, powerliability, and immunitydisability.
The rightduty correlative should be confined to the situation where one person is
entitled by legal process to compel another person to act in a certain way, i.e. enforcing
payment of a debt.
Libertyno-right is the correspondence of a legal consequence of others having noright to interfere with the exercise of a liberty or privilege.
Powerliability represents a legal power to produce a change in the legal relationships
of other persons who are therefore liable to have their legal relations changed in such
way e.g. disposition of properties by will
Immunitydisability applies wherein a person enjoys freedom from having a given legal
relationship altered by an act of another person e.g. immunity from suit of the President

SidNotes| 9

Commented [S38]: Explain briefly what you

understand by group personality

Commented [S39]: The American jurist, Hohfeld,

made an important contribution to modern legal theory
through his analysis of the correlation between two
traditional legal concepts. What are those two legal
concepts?

Primer on the First Draft of the Revised Rules of Civil Procedure

Where is the bottleneck in our system for hearing and deciding cases?
o The bottleneck is at the witness stand.
Why?
o Because courts can hear no more than one witness at a time. Assuming that
there are just two witnesses per case, 2,000 witnesses would be waiting to be
called in courts that have 1,000 cases in their dockets. If required to form a line
outside the courtroom, those 2,000 witnesses would form a very long line indeed
with only three witnesses getting in to testify on an ordinary hearing day
What has been done in order to partly solve these problems?
o To partly solve these problems, the 2012 Judicial Affidavit Rule directs the
parties to use judicial affidavits of witnesses in place of their direct testimonies.
This change has cut down the time needed for hearing cases by two-thirds, since
the examination of witnesses normally consists of two-thirds direct and one-third
cross. The proposed rules of civil procedure have adopted this change.

SidNotes| 10