Law

As defined by Sanchez Roman, Law is a rule of conduct, just and obligatory promulgated bt
legitimate authority for the common observance and benefit

Classification of Law

1.1 Substantive Law is a law that creates and controls the rights and duties of parties

ex. laws regarding torts, contract and real property

1.2 Procedural Law is a law that creates and controls the process of enforcing the rights and
duties under substantive law

ex. rules of evidence, jurisdiction, and pleading and practice

2.1 Civil Law is the law of private rights and duties. Deals with duties between private parties;
and any violation of it is a wrong between the parties, not a wrong against the whole
community.

2.2 Criminal Law is the law of public rights and duties; put another way, it is the law that creates
and controls wrongs committed against the whole community.

3.1 Public Law can be defined as that aspect of Law that deals with the relationship between the
state, its citizens, and other states.

3.2 Private law is that category of the law that concerns itself with the relationship amongst
private citizens.

4.1 Municipal/Domestic law is the aspect of law which emanates from and has effect on
members of a specific state.

4.2 International law is the law between independent countries usually in the form of treaties,
international customs etc.

5.1 Written laws are those laws that have been validly enacted by the legislature of a country.

5.2 Unwritten laws are those laws that are not enacted by the legislature.

Characteristics of Law

A. It is a rule of Conduct - the laws tells us what shall be done and not be done and takes
cognizance of external acts only

B. It is Obligatory - the law considers positive command imposing a duty to obey and involving a
sanction which forces obedience

C. It is Promulgated by legitimate authority - by congress or the legislature

D. It is of common Observance - laws are intended by man serve man. It regulates the relation of
men to maintain harmony in society and to make order co-existence.

Sources of Law
- Constitution

- Legislation or Statues

- Judicial decisions or Jurisprudence

- Administrative law

- Customs

Importance of studying Philosophy of Law

It is important to study Philosophy of Law to enhance our philosophical aptitude and legal
reasoning.

Understanding logic is useful to effective legal argumentation. Logic is one element of

philosophy.

Therefore understanding this element of philosophy is useful for study and practice of law.

5 Schools of Jurisprudence

·0 Naturalism - maintains law and morality are not separate and unjust laws are not true
laws since it should reflect the eternal verities of justice and fairness

·1 Positivism - believes that law and morality are separate and that law is valid if it is validly
posited by lawful government or authority

·2 Realism - holds that law is determined by real world practice and experience where law
is a by-product of the lawmaker's political, religious, economic or psychological beliefs

·3 Formalism - posits that law is a strict science governed by formal axioms and principles
which are used by judges, using the rules of logic, in deciding or determining the
outcome of the case.

·4 Critical Legal Studies - believes that law is but an expression of policy goals of whoever
happens to be , at the particular moment in history, the dominant social group.

Difference between Philosophy of law and Legal Philosophy

Philosophy of law Legal

Philoposgy

Field of emphasis is a branch of philosophy and is a discipline

on law
therefore deals primarily therefore
deals primarily
with Philosophy
with law
operational base within philosophy within the
legal academy
is different

Historical School - a school of legal philosophy that emphasizes the relation of the evolution of
law to the historical milieu and minimizes the importance of arbitrary human action and of
natural processes to its development.

History of Law - is closely intertwined with the history of civilisation or the evolution of law.

Philosophy of Law - is concerned with providing a general philosophical analysis of law and legal
institutions.

Meaning of "law is found not made"

-Law has an unconscious organic growth, it is neither found nor artificially made.

* Law is not universal in nature, it varies with people, time and needs of the community.

A. POSITIVIST SCHOOL

This school of thought developed at Yale, Oxford, and Cambridge believes that there is no law
unless it is promulgated by the State. Law is written down and explicit.

The earliest codified Roman laws were the Jus Civilis, which was applicable to Roman citizens,
and the Jus Gentium, which was applicable to the legal relations of Roman citizens with aliens
("perigrino") -- both of which were administered by a "praetor" or a judge.

Emperor Justinian's greatest contribution to the growth of the legal system of the world was his
codification of all Roman laws. The Romans made law systematic, as in the areas of family,
persons, contracts, slavery, etc.

During the Reformation Period, the world saw the rise of Protestant philosophers. Today
(modern period), the world saw the rise of the sociological school, the functional school, and the
school of modern legal realism.

The foremost proponent of the positivist school of law were Austin, Kelsen and Hobbes. Dura lex
sed lex expresses the meat of the positivist school of law.

To Austin, law is objective, authoritative, commanding, and empirical. It is the expression of the
will of the state. Natural law and moral law do not matter. Law is not a moral concept. It must be
free from metaphysical speculation. It is not made by God but by a superior sovereign. Law is the
conscious will and command of the sovereign imposed on the subjects, who are liable to suffer
penalties in case of violation thereof (authoritative enforcement system).
To Kelsen, law is created by acts of men, not by God. For law to be stable, it must be based on
empirical science, not metaphysics. It must be made as exact and as objective as the science of
mathematics. In his "pure theory of law," Kelsen argued the removal of moral connotations and
value judgments from law, i.e. of all non-legal elements. Law may be prescriptive, authoritative,
permissive, or normative. Law is a positive norm of conduct, hence, it is uniform for all. Coercion
and sanctions enforce law. In his pure theory of law, the focus is on "the law as it is", not on
what it ought to be. Law is objective and precise, not subjective.

John Austin's imperative theory:

law is a command which obliges a person or persons to a course of conduct. It is laid down by a
political sovereign and enforceable by a sanction.

* relation of laws and ethics - the theory disregards the moral or ethical elements of law. The
end of law is justice. Any definition of law without reference to justice is inadequate.

* just like positivist school, imperative school believes that law and morality are separate and
that law is valid if it is validly posited by lawful government or authority

Utilitarian Theory which is based on the maxim “greatest happiness for the greatest number of
people.” The fundamental idea behind this philosophy is that the primary function of
punishment in criminal law is to protect the society from potential and actual wrongdoers.

C. FUNCTIONAL SCHOOL

The functional school of law developed in the United States. It focuses on the question: "Will this
law work?" Law is one of experience.

It is also called the "theory of sociological jurisprudence", "sociology of law," or "social science
school of law."

It focuses on the "operation and effects" of law in relation to the interests of society. The
"interests of society", not the folk-soul or the pressures from the powerful elite, is the source of
law. Montesquieu wrote that law is an evolutionary process.

Law is a tool for the "balancing of interests" in society. It is a tool of "social control" or "social
engineering." In a sense, it adheres to the tenets of "pragmatic ethics" or "ethical relativism" as
it aims to serve the interests of society with the least friction.

It adheres to, and is actually a type of, "legal positivism" and "legal realism."

The main factors that define the law are expediency and the convenience of society. Its main
proponent is Dean Roscoe Pound.

There are three kinds of interests: individual, public, and social (or jural). All of these must be
considered in the "legal ordering" of society (private rights and obligations vs. social interests).
Since not all social conflicts can be compromised, some interests must give in. In social
engineering, where compromise fails, the tools of arbitration, judicial action, purposive
legislation, and decisive executive action must come in.

The greatest good for the greatest number, or "social utilitarianism," is the main guidepost of the
functional school. Law is pragmatic and dynamic.