I.

PRELIMINARY CONSIDERATIONS • Criminal Law – the branch of law which defines offenses and
A. Philosophy in General specifies the corresponding penalty therefore.
a. Defining Philosophy iii. Public v. Private Law
- The study of the fundamental nature of knowledge, reality, and • Public Law – governs the relations of the members of a
existence, especially when considered as an academic discipline. community with one another
- Literally the term philosophy is derived from the Greek words • Private Law – regulates the relations of the members of a
philos ("loving") and sophia ("wisdom"), and means "the love of wisdom." community with one another
- Philosophy of law, also called jurisprudence, branch of iv. Prescriptive v. Prohibitive Law
philosophy that investigates the nature of law, especially in its relation to • Prescriptive Law –
human values, attitudes, practices, and political communities. • Prohibitive Law – those which have to be complies with,
because they are expressive of public policy, disobedience is
b. Functions of Philosophy punished by direct penalties or considering an act or contract
i. Reflective Function void
ii. Observational Function v. Common v. Civil Law
iii. Complementary Function • Common Law – based on a case law or judge-made law that
iv. Ratio- orientation relies on precedents set by judges in a court case
v. Foundational Inquiry • Civil Law – branch of law which every particular nation or
B. “Law” in general state has established peculiarly for itself.
a. Most basic & common questions: What is Law? vi. Constitutional v. Statutory v. Administrative
- Rule of conduct, just and obligatory, promulgated by legal • Constitutional – Constitutional law refers to rights carved out
authority for common observance and benefit. in the federal and state constitutions. The majority of this body
of law has developed from state and federal supreme court
i. Origins of Law rulings, which interpret their respective constitutions and
ii. Basic elements of Law ensure that the laws passed by the legislature do not violate
1. Reasonableness- Rule of conduct, just and obligatory, constitutional limits
promulgated by legal authority for common • Statutory – Statutory Law is the term used to define written
observance and benefit. laws, usually enacted by a legislative body. Statutory laws vary
2. Common Good– Law can only be enacted for the from regulatory or administrative laws that are passed by
common good and not a private good for few citizens executive agencies, and common law, or the law created by
3. Promulgation– The official publication of law so that it prior court decisions.
can come to the knowledge of the subjects • Administrative – body of law that governs the activities of
4. By Legitimate Authority – Laws can only be enacted by administrative agencies of government. Government agency
those in charge of the community as a legitimate action can include rule making, adjudication, or the
authority enforcement of a specific regulatory agenda. Administrative law
b. Branches of law is considered a branch of public law. As a body of law,
i. Substantive v. Procedural Law administrative law deals with the decision-making of the
• Substantive Law – establishes rights, duties and corollary administrative units of government (for example, tribunals,
prohibitions boards or commissions) that are part of a national regulatory
• Remedial or Procedural Law – prescribes the manner of scheme in such areas as police law, international trade,
administering, enforcing, appealing, amending, and using legal manufacturing, the environment, taxation, broadcasting,
rights and claims immigration and transport. Administrative law expanded greatly
ii. Civil v. Criminal Law during the twentieth century, as legislative bodies worldwide
• Civil Law – branch of law which every particular nation or created more government agencies to regulate the social,
state has established peculiarly for itself. This law concerns with economic and political spheres of human interaction.
civil or private rights and remedies, as to contracted to criminal
law.
C. Philosophy of Law
a. Main points of Inquiry
i. Validity- When is a law valid? - Generally, in order for some
action of the legislature, or the executive, or the courts to be
valid and enforceable, it needs to favorably pass two tests: First,
it must not violate what our founders called “The Laws of
Nature and of Nature’s God.” Briefly stated, it must be moral.
Secondly, it must not violate the constitution. The Constitution
limits government authority by enumerating specifically those
powers delegated to it by the various states and their people.
b. Normativity- What makes a law, law?- Make law means to legislate or to
enact a law. Making a law is a complicated and a lengthy process and
which includes a series of steps starting from drafting a bill until the
President signs the bill and the same becomes a law. Any issuance of a
legal precedent, an enactment of a statute or the making of a new rule is
part of making a law. Enactment of a new rule on a particular subject is an
example of making law.
c. Main concerns under validity inquiry
i. Conditions of validity
1. Extrinsic
a. Law & Politics- the law functions in relation
to politics in three basic aspects, namely as
a goal, a means, or an obstacle. First,
politics can define certain predominantly
legal values or institutions as its goal. In this
case the political understanding of these
values or institutions becomes almost
identical to an authentic legal
understanding of the same values or
institutions. Second, politics can
comprehend the law merely as a means for
the fulfillment of certain political interests.
In this case politics is neutral in its attitude
toward the law. Finally, politics can
interpret law as an obstacle on the way
toward the realization of certain political
goals. In this situation either politics prevails
over law, or vice versa. In the first case
politics effectuates its solutions at the
expense of the rule of law, while in the
second case the autonomy of law is
preserved through the decisions of the
highest courts or by other actions taken by
lawyers, intellectuals, associations,
organizations, and the public in order to
stop illicit acts of political actors. Law and
politics create their own particular pictures
of reality. Sometimes those pictures
overlap, sometimes they differ. Yet, there is
something that the law should never
include in its sphere; namely, the
differentiation of adversaries according to a
purely political criterion. This leads to a
strict separation between "ours" and
"yours", or, in its most radical expression, to
a strict separation between friend and
enemy. When the latter occurs, politics
inevitably prevails over the law, and
reduces or damages the autonomy of the
rule of law.
b. Law & Morality- Fuller aims to show that a
moral reason to obey the law always exists,
even in some cases there might be stronger
reason for disobedience. Fidelity to the law
is accordingly a genuine moral virtue. His
theory rests on the idea that any system of
law necessarily abides by certain moral
principles. For him a government must
abide by the traditional principles of legality
if its mode of regulating society is to show
respect for humans as agents capable of
choosing their own conduct.
c. Law & Custom- Though custom is different
from law, it does not mean, however, that
they are poles apart. Both supplement and
complement each other. Activities which
were once performed unconsciously are
now consciously formulated. According to
Maine, there is always a necessity for law to
adjust itself to social necessities and social
opinions. When a law expresses the moral
consensus of the society, it will be
effectively enforced. If it is not backed by
firm moral consensus, effective
enforcement is less likely. Law divorced
from custom is bound to become artificial
which would not be seriously observed by
the people. Law is a make and custom is a
growth. Law is specific and customs are not.
Laws is more idealistic and customs. Law is
more flexible and adaptable than custom.
Customs are permanently fixed and
 permanent. A sudden change about in i. Telos and the Law
customs. ii. Legislative Science
2. Intrinsic iii. The ideal form of government
a. Law & Higher Laws- the validity of laws (that iv. Justice and law
are man-made) is tested on the basis of 1. Differences and inequalities
some “higher law”, such reason, morality or 2. Good government & Revolution
divine law. (Cicerco, Plato, Aquinas) v. The birth of natural law
b. Law & Other Laws- vi. Conventional justice and natural justice
d. Main concerns under normativity inquiry vii. Classification of rights
i. Authority & the duty to obey 1. Just claims (to dikaion)
1. Distinction 2. Liberty or privilege (Exenai)
2. Correlation 3. Authority (Kurios)
3. Interdependence or independence 4. Immunity (Adeia) & Exemption (Atelia)
ii. Types of normativity g. Hellenistic Philosophy of Law
1. Externalist Accounts i. Shift in Political & legal Paradigm
2. Internalist Accounts ii. The Academics
II. SURVEY OF CONCEPTS OF LEGAL PHILOSOPHY & NOTABLE PHILOSOPHERS iii. The Peripatetics
A. Ancient Legal Philosophy iv. Polybius
a. The ancient concept of law v. Epicureans
i. Law as a way of life 1. The pleasure Principle
ii. Law as a conventional opinion 2. Pleasure and Social Justice
iii. Law as compounds vi. Stoics
iv. Law as statutes 1. View of Human Nature
b. Ancient notions of origin of law 2. Wisdom and Control versus pleasure
i. Law as “gift of the gods” 3. Human freedom
ii. Law as a human invention or agreement 4. Cosmopolitanism and justice
iii. Law of and from nature 5. Just naturale
c. Functions of law h. Law in Roman Philosophy
i. Law in the Polis i. Roman law and legal thought
ii. Unwritten Laws ii. Cicero
iii. Laws of and for the Greeks
iv. Law of the nations
d. Socratic Legal Philosophy
i. Philosophy of law and ethics
ii. Knowledge and virtue
iii. Function and happiness as moral (or Legal) pursuits
e. Platonic Legal Philosophy
i. The forms
ii. Plato’s philosophy of Man transposed to political philosophy
1. State as a giant person
2. Tri- partite soul vis-à-vis tri-partite Government
3. Philosopher-King
4. Virtues in the State
5. The degeneration of the ideal state
iii. Platonic notion & perspective on punishment
f. Aristotelian Legal Philosophy