Introduction 4 distinct classes:

 Law – any: All rules and orders which necessarily

determine:
o Rule of action or  Activities of man
 Any warrant, instruction, regulation, measure, or decision governing  Motions and even the instincts of
any act conduct, transaction, or proceeding, including their dumb creatures
consequences  Origin and growth of living
organisms
 2 important points:  Movements and courses of
 Conduct and forbearance; rule of action may be violated inanimate bodies or masses are
included
but they can’t be broken unless subject to repeal by the
body constitutionality to do so
o Order of sequence from which
 System of arrangement or consecutiveness, or any uniformity of a given group phenomena
o Any being whatsoever either:
 Will not, Point of nondeviation:
 Determination to abide or avoid violation; connotation of future - Focal aspect where all
conformity, prospective agreement, or even eventual rules of action and orders
compliance of sequence assert their
authoritativeness
 Cannot, or - Those concerned will
 There is no other way except to obey or comply with a rule of cease and desist from
action or an order of sequence no matter how much the desire certain activities or
conduct which otherwise
exists to act otherwise
would result in loss or
 Force which gives the legal order the authority to punish disadvantageous
lawbreakers consequences, whether
 Ought not to directly or indirectly

 Obligatory form of nondeviation

 Presence of choice between action and inaction between following or not
 Recognition that it is better to follow
o Deviate
 Nonjural law – identify laws in the metalegal sense
o Divine law – philosophical theology
 General sense – jus divinum
 DL – entire system of perfection which God in his infinite wisdom has in the whole of nature to govern its
operations and where all that there in it is ran in perfect order
 Strict sense – law of religious faith which concerns itself with the concept of sin and salvation, death and life, of the temporal
and spiritual
 Christian – Bible – old and new testament; Holy trinity
 Muslim – Muhammed -> (Quran, Sunna, Hadith)
o Natural law – embodiment of reason (metaphysical)
 History
 Heraclitus – NL is the rational harmony and order of divergent things and events; it is the unwritten law pervading
and ruling the whole of nature without which the cosmos would be plunged into chaos; it is intertwined with the
notion of the law of nature in accordance with which everything happens as they should
 Plato
Based on Sophacles’ work- antigone
Ought Is
Perfect/ natural reality Imperfect application
Natural- perfect idea of the law Imperfect – legal
Just by nature Enactment
 Aristotle
Just by nature Imperfectly just
Perfectly just Just by law
That which is everywhere recognized even in the absence of communication Indifferent & relative
and contract among different people
Absolute universal
 Stoics
o Abiding character of natura provided them with the idea for a well-ordered society
o Live consistently with nature
 Men must live and move “naturally” or with order and stability
 Epictetus
o Natural law – not merely the objective type related to the outward order and stability of natura but the
truly subjective or inward nature of man, that is his capacity for RIGHTEOUSNESS, JUSTICE,
FAIRNESS and EQUALITY
o Real good – innate in the human being
 However, the naturally good in man may be defeated by the evil
 New Testament
o St. Paul – even if a man doesn’t know the law, it is his conscience which would convince them of the
righteousness of commendable actions
o St. Augustine – no man can really plead ignorance of the natural law because his natural good faith is
never silenced
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  Concepts and precepts
 NL – universal discipline of virtue impressed in the heart and mind of man to guide him in the exercise of his
rights, in the performance of his obligations, in the observance of rules, and in the preservation of order and unity
 Precepts: (RJEF)
o Righteousness
Comprehensive precepts transcending human notions and changes
o Justice
o Equity
o Fairness Narrower, confined to the rendering to everyone his due
 Use in legal order examples:
o Art. II and III Consti
o Natural Obligations Art. 1423- 1430 NCC
o Dec. 10, 1948 – Universal declaration of Human Rights
o Sept. 3, 1953 – European Convention on Human Rights
 But it is not a legal system, it is merely a body of principles
 Using this would end to judicial coup d’ etat
 Uses of NL
 Justificatory use – To warrant some legal innovation; to justify some claim to authority; to support one’s side of
an issue or personal conviction
o Roman law – praetors used NL to hasten the development and acceptance of the jus gentium to the
peregrini(foreigners)
 Jus gentium – law of all people
o Law of nations – by Gentilis, Grotius, Puffendorf
o Public international law – Jeremy Bentham
o John Locke – if people are no longer happy with the government it is their right and duty to revolt
(sovereignty)
 Oppositive use – relation of individual to government
o Gandhi – “nonviolent cooperation with evil is as much a duty as is cooperation with good.”
o Obedience of statute – disobedience of natural law
o Goshen v. Stonington – C.J. Hosmer
 Retroactive statute – who would aid in carrying it to effect
 Regulatory use – statute incompatible with NL
o Not a law but an invalidation or corruption of law
o St. Thomas Aquinas – “every law enacted by man enjoys the character of law to the extent that it is
derived from the NL”
o Criterion or standard for the validity of statutes and regulations
o 2 grounds (court’s power to declare a statute null and void with NL as the criterion)
 No positive law can flagrantly violate the NL without producing an adverse reaction or effect
on the community itself
 Law contrary to NL cannot be considered as the act of the people
o Jura naturae sunt immutabilia et leges legume
 An act of the Parliament against natural equity is void in itself (Lord C.J. Hobart)
 Human rights – immune even from an infringement by State legislation
 Immanent rights
o destruction of such – destruction of man’s moral and spiritual nature
 Interpretative use
o Aristotle – “Aequitas est correcto legis generaliterlatae qua parti deficit”
 Correction of that wherein the law by reason of its universality is deficient
 Spirit or purpose
 Letter of law
o Moral law – ethical; it was the mores of people that held the group together
 2 types of orders:
 Legal order
 Moral order Not at all L.O. are M.O. and vice versa)
 Moral norms – absolute, positive, peremptory
 Good and exemplary conduct which set the moral tone or feeling of the community
 Determine which may or may not be done
 Aggregate ethics of the community
 “A man may not have religion and still be ethical”
 Dff. From social norms
 Rules acceptable within a particular class of people only
o Physical law
 Law of nature
 Totality of uniformities and orders of sequence which combine together to govern physical phenomena
 Imperativeness – fixed and unbreakable
 Regular – no break in their sequence or constancy
 Norms – generalized statements of observed phenomena concerning order and regularity in the happening of certain natural
or physical events
 Mathematical formulas
 Independent of human will
 Jural law
o Particular (lawyer’s law) (enacted law)
 Law – Statute – enacted by the legislature for definitive situation or state of facts to which certain incentives/ sanctions are
attached
 Legal incentive – stimulus/ motive
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  Legal sanction – coercive intervention or eventual punishment
 Any rule or regulation or opinion of an authorized official/ agency
 Rule – rule of civil or criminal procedure
 Regulation – government publication in the official Gazette
 Opinion
o Dangerous tendency by Mr. Justice Malcolm of the Supreme Court of the Philippines
 People v. Perez - seditious tendency as a result of mere verbal encouragement to kill is
punishable
o Clear and present danger by Mr. Justice Holmes of the US Supreme Court
 Schenck v. U.S. – the words used incite men to act unlawfully which is the very thing that
society is justified in preventing
 Thus if the words used or acts done are in such circumstances and are of such a
nature as to create a clear and present, not a doubtful and remote, danger to the
community then such acts or utterances are punishable
 U.S. v. Dennis – whether the gravity of the “evil,” discounted by its improbability, justifies
such invasion of free speech as is necessary to avoid the danger
 the danger need not to be imminent, it is enough that there is someone or some
group willing to attempt to overthrow the government
o “no immediate decision” rule – Mr, Justice Villareal
 Javellana v. La Paz Ice and Cold storage Co., Inc.
 Various motions for postponement amounting to a systematic method of blocking
or delaying the ordinary course of the hearing of an application for a certificate of
public convenience will justify the Public Service Commission in granting a
provisional permit to operate the service applied for although here is no express
provision of law granting such power
o The authority of an opinion or commentary is based on the scholarship of the commentator
 Presumption: courts take into consideration only the opinions and commentaries of the most
highly qualified persons
 Opinion of an authorized government official: ruling or opinion of the Sec. of Justice
(especially in the executive and administrative branches of the government)
o Collective sense (lawyer’s law)(enacted law)
 Gross or bulk particular laws relating to one subject matter
 Specific laws relating to one subject matter
o Civil law, remedial law, crim law
 Particular laws coming from determinate source or origin:
o Law of the Philippines, Federal law of the United States…
 Classification
 Substantive law – rights and obligations
o Substantive Private law
 Persons and Fam relations
 Property and property rights
 OBLICON
 Trade and commerce
o Substantive Public law
 Consti law
 Public Admin law
 Crim law
 Adjective or remedial law – remedies and procedure
o Adjective Private law
 Law on civil actions
 Law on special proceedings
o Adjective Public law
 Crim Procedure
 Special law – rights and obligations in extraordinary times
o Military law – AFP
o Martial law – times of war; grave public danger
o Public International law
o Abstract sense
 Law – special form of social control
 Legal order
 Pound: “one may respect the law and yet object to a particular state”
 Precepts
 Legal rule
o Rule of action
o Define/ set the furthest limits of human actions and activities
o With incentive/ sanctions – enforcement
o Judicial legislation – court’s first instance in the absence of legislative initiative and determination
 Legal Principles
o Legal and juristic reasoning not covered by legal rule
o No incentives/ sanctions
o Basis of new legal rules
 Legal Concepts
o General categories of legal materials which specific cases may be classified
o Sets the materials of the law in proper order and symmetry

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 o Reduce the mass of legal rules into manageable size
 Legal standards
o Model/ criteria to measure the validity of specific acts
o No sanctions
o LS of fair competition; deceit
o LS of diligence (bona pater familiare)
 Negligence – absence of diligence
 Pater familias
 Diligence of a care of a good father of family
o Reasonable man
o LS of good faith (bona fidei)
 Sincere intention to deal fairly with others
 Ideals – grounds for guides to policy planning and consideration
 Juristic ideals – ordered liberty
o Not all rights are absolute
 Ethical ideals – what human conduct and expectations should be
 Political ideals
o Fuller direction of the political process and for the maintenance of the general welfare and security of
the people
o Un moi commun – general will
o Metropolitan service v. Paredes – government of the people by the people
 Economic ideals
o Supply and distribution of limited resources
o Labor
HISTORICAL TELEOLOGICAL POSITIVIST FUNCTIONAL REALIST
DEFINITION Appraises the law in the Considers the law in terms of Law is a conscious creation What law does in promoting Laws are rule of conduct
context of the common man’s rational nature of the State the interests of society laid down by the courts
consciousness and
intelligence of the people
(ideals)
WHAT IS THE NATURE Where is the origin of law What is the end of the law What is the structure of the What is the function of law Is the law verifiable in the
OF LAW law decisions of the courts
which apply it?
Beginning end
Product of evolution Natural law Non-jural Positive law – written law
- Not a product of Righteousness, Natural law
intentional creation; Very justice, Moral law
slow process equality, Divine law
fairness
Law is national in character Law is universal regardless The greatest happiness Justice Oliver: “even if the
National – true only in a of the time, place, etc (aesthetic pleasure), is if situation is the same,
specific place and time; the act will benefit the different decisions may be
depends on people, greatest number of the made
circumstances and place population, is good
Law is found and not Law is intentionally made
deliberately made
Law started from basic law, The only test of the validity Law is what the court says;
tradition, belief, etc of law is the Constitution radical, practical, human
factor of the law
Philosophers legislative Judicial
Most controversial
MATERIAL PERSPECTIVE OF IDEAL CONCEPTION IDEAL CONCEPTION MATERIAL PERSPECTIVE MATERIAL PERSPECTIVE MATERIAL PERSPECTIVE
THE LAW/ IDEAL CONCEPTION
MAIN SCHOOLS / / /
What is the value of the different theories of the law?
 Good legal order depends greatly on legal philosophy for its development
 Legal ideas are shaped and developed by legal theories
 Legal philosophy furnishes the right perspective for a serious study of law
 All legal rules are mere applications and manifestations of some working jurisprudential theory or construct
 Law would be empty and hollow, it would be a vocation and not a profession without jurisprudential insight and perspective
 Professor James J. Cavanaugh – if these foundations are not taught and emphasized then students are led to the appalling conclusion that they
do not exist; their enthusiasm wanes, they continue dispiritedly and graduate unpleasantly close to cynics

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HISTORICAL PERSPECTIVE
 Freidrich Karl von Savigny (1779-1861) Founder
o German jurisprudent and legal historian
 2 main reason for starting w/ the historical viewpoint in any inquiry in the nature of law (even if chronologically speaking, teleological came 1st b4 historical)
o Folksoul – basis itself of the historical jurisprudence
 Basic foundation of historical jurisprudence, provides a sense of beginning and unfolding of the law
 Idealistic concept
 Cannot be scientifically examined as a definite object, as any other thing
 Metaphysical underpinning romantically colored with the sense of beginning
 Positive law should be a reflection of the common consciousness and spirit of the people
 Emil Lask: “even social values proceed from the substrantum of the folk soul”
o Continuing interest in the philosophy of natural law
 “Soul” and “spirit” – are utilized by modern philosophers to mean: a very high degree of intelligence call “minded action”
 and they are very rarely used by the modern philosophers
o Stresses the beginnings and growth of law
o Unlike legal history, which is descriptive, historical perspective is critical
o The nature of the law and its concommitant problems cannot be understood properly without reference to, or appreciation of, the
socio-political phenomena in which the law has grown
o Law could not have thrived except in this environment
 PRESENCE OF THE HISTORICAL ELEMENT IN LAW
1 2 3 4
Social act or behavior attitude – what a Social order – ways of life handed from Beginnings of legal order – precepts Body politic – people welded together by
group of people considered to be proper generation to generation defining rules of action were classified, common centers of interests and purposes
and correct evolution of some form of government to which the people submitted themselves
with one accord

o 2 important marks of historical element regarding its presence in law

 Changes in the social existence of people
 The progressive conditions of its politico- legal development
 HISTORICAL VIEW LIMITED IN SCOPE
o Nature of law – limited in nature
o Historical Perspective does not seek to investigate the idea that what is peculiar to a particular group of people is also true for other
groups of people
o Law is not universal
 Law is not a product or result of the interaction of the experiences of the human race as a whole
o Law is national
 Conservatively oriented to the time, place, character and individuality of a particular group of people
 Social milieu varies from time to time, from place to place, and from people to people
o Law is the product of the genius or intelligence of that group of people
o Law of a group of people is peculiar only to that group of people
 BASIS OF THE HISTORICAL APPROACH
o Sociohistorical course – historically determined and factually observed law
o THE OBLUTIACS OF THE PEOPLE
 Opinions, beliefs, longings, usages, traditions, idiosyncrasies, arts, customs and even superstitions
 Traditional sources of the jural substance of materials of the people
 Folklore
 Folkways
 Where historical school or jurisprudence originated from
o THE FOLK-SOUL – decisive in the study of the problem of the nature of the law (diwa)
 Elements: which together form the common consciousness and intelligence of the people. Together they reveal the people’s
cultural identity
 FOLKLORE (paniniwala)
o Lore – learning – Beliefs and traditions of a people
o Folk learning or folk wisdom
o Racial aptitude for the true and good needed for common welfare and survival
 FOLKSAYING: proverbial maxims (sawikain), sentiments (sabi)
o Opinions, oral reflections of a people
 Nature
 Social – homely admonitions, advice about practical living, instructions in wise
conduct, as well as moral statements and truths
 Jural
o Expressions or announcements of order or policies which the members of the community are expected
to follow
o Maxims – short pithy of statements containing a general doctrine or truth
o Sentiments – more or less settled sense of the people
 FOLKWAY (kaugalian)
o Usages and customs
o Rational and widespread habitual courses of actions or practices(ugali)
o Result of necessity – continued to be followed = won the approval of the people
o Provided the first sources of rules
o Nature
 Social
 Jural
 FOLKSONG
o Utterances in musical form of the life and soul of the people
 FOLKDANCE
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 o
Rhythmic and pattered succession of bodily movements with their own distinctive meaning and
significance
o Indicative of the life and spirit of the people
 FOLKART (sining)
o Skill and art peculiar to the people
 LAW AS THE LIFE AND SPIRIT OF PEOPLE
o Folksoul became no longer a methapysicial theory or idea, but a storied and documented being, a historical and natural beauty
embodying the will and spirit
o Law is a revelation and development of the national spirit
 BASIC FOCI OF HISTORICAL JURISPRUDENCE
o THE STATE AND THE FOLK-SOUL
Body politic – final juristic personification of a
 Family/ clan – earliest form of social living nation or people
 Peace and order
 Head of the family or clan
 Alliances – several family group forms temporary alliances
 More or less permanent fellowship, binding all within its reach
 Government – head is voted/ chosen by the people
 State – not a fortuitous occurrence
 The present existence of the State develops with immanent necessity from the elements furnished by the past
 Highest expression of the folk-soul or diwa of the people
 Highest national structure erected by the socio-political development of the people
o LAW NOT DELIBERATELY MADE
 But is a product of common conviction
 Law is historically determined as it was awakened by the folk-soul
 Dean Pound: “juristic pessimism
 Growth of law is a historical process
 History built up the system and the law that went with it
 Although the law lives in the common consciousness of the people, its meaning and implication on the community are
handled by a specialized group of individuals versed and skilled in the law
 Formulation of technical legal precepts (agency or the instrumentality of the people for the articulation and communication of the law) :
o Jurisprudents Follow the evolution and progress of the folk-soul by legal historical research
o Jurists
o legislators
 SIMILARITY BETWEEN LEGAL ORDERS OF DIFFERENT PEOPLE
o HISTORICAL REASON
 For one, a country may come from the control of another. Hence, after the former was freed, they would abolish the laws
which the controlling country imposed upon them, which are contrary to their oblutiacs.
 While other countries have special relationship with others which affected or influenced their own and foreign legal system
o JURISPRUDENTIAL REASON
 Precepts of justice and fairness are said to be permanent and present in all men everywhere since they are said to be
impressed or implanted in the human heart and mind
 Basic and identical for all people
 Ought to explain the resemblance or similarities in some aspects of the legal orders of different people
 No man must enrich himself at the expense and misery of another
o Hence the time lapse that would be fixed by law, varies from place to place depending on the folk ways
of each particular group
 VALUE OF THE HISTORICAL DOCTRINE OF LAW
o For law there is no moment of absolute cessation
o Law is subject to the same changes and varieties that happen or occur to the other aspects of the life of a people
o The historical view of the nature of the law highlights the point that rules and regulations governing human conduct can better survive
the tensions of social and political existence if and when they are in accordance with the kindred consciousness and convictions of
the people to whom such rules and regulations, are after all addressed
o Philippines:
 Civil Code – partly based on the folk-soul or diwa of the people
 Art. 10 – presumption that the law-making body intended right and justice to prevail whenever it enacts a statute
 Art 19 – 35 Human Relations – basic principles that human beings and for the stability of the social order
o Every person must act with justice, give everyone his due and observe honesty and good faith in the
exercise of rights and in the performance of obligations
 System of absolute community of property
 Art 216 to 222 Family solidarity
o Valuable and practicable in the legal ordering