Legal Philosophy: Historical School

I wrote this short paper in 1998 as part of my Ll.M.

course on Legal Philosophy. The LAWYERS REVIEW had
published it.

2. Hall, Jerome. READINGS IN JURISPRUDENCE.

Indianapolis: The Bobbs Merill Co.
3. Friedman, Lawrence M. THE LEGAL SYSTEM: A
SOCIAL SCIENCE PERSPECTIVE. New York: Russell Sage
Foundation.
4. Hibbert, W. Nembhard. JURISPRUDENCE. London:
Sweet and Maxwell Ltd., 1932.

THE "HISTORICAL SCHOOL" OF LEGAL PHILOSOPHY :

ITS RELEVANCE TO THE PHILIPPINES

FOUNDERS OF HISTORICAL SCHOOL

by:

In terms of chronology the historical school

was preceded by the philosophical school or the
natural law school. In fact, the historical school
was a reaction to the philosophical school or
natural law school (Pascual, 71).

Atty. MANUEL LASERNA JR.

The founders of the historical school were

Prof. Freidrich Karl von Savigny and Prof. Eichhorn,
who taught law and jurisprudence at the University
of Berlin in the early part of the 19th century
(id., 70).

THE THESIS OF THE PAPER

The author is of the view that the "historical
school" of the philosophy of law is the most
relevant school of thought in the Philippine
setting, for the reasons described in this paper.

ORIGIN OF LAW: COMMON CONSCIOUSNESS OF THE PEOPLE

In his book On the Vocation of our Age for
Legislation and Jurisprudence, published in Germany
in 1814, Prof. Savigny, the leading voice of the
historical school, wrote of the "common conviction"
and "kindred consciousness" of the people as the
origin of law:

REFERENCES
The
author
references:

made

use

of

the

following

1. Pascual, Crisolito, LL.M. INTRODUCTION TO

LEGAL PHILOSOPHY. Quezon City: UP Law Center, 1972.

In the earliest times to which authentic

history extends, the law will be found to
have already attained a fixed character,
peculiar
to
the
people,
like
their
language, manners and constitution. xxx
These phenomena xxx are but the particular
faculties and tendencies of an individual
people xxx. That which binds them into one
whole is the common conviction of the
people, the kindred consciousness of an
inward necessity xxx.

theory of the natural law school. On the contrary he

held the theory that law is "particular or peculiar"
to a people, whose customs, history and culture may
be different from those of other peoples and
cultures in the world.
xxx The historical spirit, too, is the
only protection against a species of selfdelusion xxx, namely, the holding that
which is peculiar to ourselves to be
common to human-nature in general. Thus,
in times past, by the omission of certain
prominent peculiarities, a natural law was
formed our of the (Roman) Institutes,
which was looked upon as the immediate
emanation of reason. There is no one now
who would not regard this proceeding with
pity; and yet we meet with people daily,
who hold their juridical notions and
opinions to be the offspring of pure
reason, for no earthly reason but because
they are ignorant of their origin. xxx.
(id.)

xxx.
The sum, therefore, of this theory is,
that all law is originally formed in the
manner, in which, in ordinary but not
quite correct language, customary law is
said to have been formed: i.e., that it is
first developed by custom and popular
faith,
next
by
jurisprudence,
-everywhere,
therefore,
by
internal
silently-operating powers, not by the
arbitrary will of a law-giver.

NATIONAL MIND AND SPIRIT OF THE PEOPLE: ORIGIN OF

LAW

xxx.
(Hall, 87-88; underscoring supplied)

Prof. G. F. Puchta, author of the book Outlines

of Jurisprudence as the Science of Right - A
Juristic Encyclopedia, published in Germany in 1887,
and a disciple of the historical school, speaks of
the
"national
or
popular
character",
"common
consciousness" and "national mind or spirit of the

CRITICISM OF THE NATURAL LAW SCHOOL

Prof. Savigny did not believe in the concept of
"universality" of law, which is, next to "pure
reason" or "rationalism", the main foundation of the

people" as a basis of the origin,

development of law and jurisprudence:

growth

and

word, the national mind or spirit of the people; and

it is the source of human or natural Right, and of
the convictions of Right which stir and operate in
the minds of the individuals.

(NOTE: The use of the word Right, with

capital R, in the following quotations,
refers to Law and Jurisprudence, as used
by Prof. Prachta, infra).

The consequence of this mode of origination induces

a diversity of Right among the various peoples. xxx.

xxx.

The Conviction of the People, as reflected in the

Consciousness of its members, is the first of the
modes in which Right arises, because it stands
nearest to the primary source of all human Right,
and is immediately connected with it. xxx. It has
thus the property of a common practice or Custom;
and hence the Right that has arisen in this form is
called CUSTOMARY RIGHT.

The Peoples are themselves to be regarded as

different individualities, dissimilar and unequal in
nature and tendency. This individuality forms what
we call the national or popular character. Hence the
Rights of peoples are different; and the peculiar
characteristics of a national are exhibited in its
System of Right, just as in its Language and
Customs.

xxx (The System of Right) develops with the People.

It attaches itself to the national character at its
different stages of culture; and it adapts itself to
the changing wants and requirements of the People.
xxx.
(id., 89-91; underscoring supplied).

All human Right presupposes a common Consciousness

as its source. A principle of Right becomes a fact
by being recognized as such in the common conviction
of those to whom it is applicable. Right is the
common will of the persons or members who are
included in a sphere of Right. Through this common
consciousness of Right, as by common Language and a
common Religion, the members of a people are bound
together in a definite union. This union rests upon
a certain relationship of body and mind; its extends
beyond the intimacy of the inner family bond, and
arises out of an actual division of the race of
mankind. The consciousness which permeates the
members of a people in common xxx constitutes, in a

ROMANTIC MOVEMENT AND VOLKSGEIST AND VOLKSRECHT

Prof. Ernest Barker, discussing the roots and
theoretical foundation of the historical school in
his book Introduction to Gierke, Natural Law and the
Theory of Society, published in Cambridge in 1934,
wrote:

The beginnings of the School of Historical

Law in Germany are rooted, in their
immediate origins, in a reaction against
Natural Law - a reaction against its
rationalism, against its universalism, and
against its individualism. Instead of pure
ratio, xxx, there was to be substituted
the Volksgeist xxx. Law, on this view, is
essentially Volksrecht: it is the product
of each nation, of the national genius.
xxx. (id., 91-92).

xxx The folk-soul, i.e., the

life and spirit of the people,
which is the basic foundation of
historical
jurisprudence,
provides a sense of beginning
and unfolding of law. xxx . And
in relation to positive law, the
concept of the folk-soul takes
on the form of a theory of what
positive law ought to be, which
is to say that positive law
should be a reflection of the
common consciousness and spirit
of the people. In the words of
Emil Lask, even social values
proceed from the substratum of
the folk-soul.

Prof. Barker, summarizing the theory of the

historical school, writes that the roots of the
historical school may be traced to "the Romantic
movement xxx as early as 1770"; that the historical
school is "a philosophy of the Folk (people)"
expressed in folk songs, folk tales, language, and
literature.

xxxx
From the observation post of historical
jurisprudence, the law is not universal,
that is to say, there is not only one and
the same law for all peoples everywhere.
xxx. (Law) is only national; it is xxx
oriented to the time, place, character,a
nd individuality of a particular people.
The reason for this is that social milieu
varies from time to time, from place to
place, and from people to people. Like a
people's
language
and
other
cultural
attributes, which are not found in others,

FOLK-SOUL AND FOLK-MIND

The German word Volks means sambayanan, people
or nation. Volksgeist means the diwa ng sambayanan.
Volksrecht means kautusan ng sambayanan.
Filipino legal-philosophy author Prof. Pascual
summarizes the volksgeist and volksrecht thus:

the law is the product of the genius or

intelligence of that group of people. In
the words of Sir Henry Summer Maine, the
acknowledged
leader
of
historical
jurisprudence in England, the law is the
product "of the huge mass of opinions,
beliefs, superstitions, and prejudices of
a people produced by institutions of human
nature reacting upon one another. In
different words, law of a group of people
is peculiar only to that group. xxx.
xxx
(Pascual,
71-96;
underscoring
supplied).

Applying the analytical perspective of the

historical
school
to
the
origin,
growth
and
development of Philippine law and jurisprudence,
this Report extensively quotes Prof. Pascual on his
discussion of the elements of the folk-soul:
The folk-soul is composed of
several elements. Each element
is a treasury of the national
character
of
the
people.
Together they form the common
consciousness and intelligence
of the people. Together they
reveal the people's cultural
identity. xxx.

OBLUTIACS: ACRONYM FOR THE ELEMENTS

OF VOLKSGEIST AND VOLKSRECHT

1. Folklore

Constituting the folk-soul or folk-mind of a

people are their OBLUTIACS, an acronym which,
according to Prof. Pascual, means the people's:
Opinions, Beliefs, Longings, Usages, Traditions,
Idiosyncracies,
Arts,
Customs,
and
even
Superstitions. (id.).

This element is composed of the

beliefs and traditions of a
people. They constitute of the
folk learning or folk wisdom
(paniniwala) xxx.
The folklore may survive in the form of
epic tales, which are very rare. A good
example in the Philippines is the epic of
Ibalon, xxx an ancient narrative of the
various phases of the early life in the
Bicol region during the reign of Handiong.

PHILIPPINE FOLK-SOUL AND FOLK-MIND

xxx. There are others, like the Darangan,

notably the Indarapatra, the epic of the
Muslims of Lake Lanao; the Biag ni Lamang, the epic of the Ilocano region; the
Tuwaang of the Bogobos of Davao; the epic
of the Bornean colonizers of the Island of
Panay, which is recorded in the Maragtas,
where Datu Sumakwel's code of laws is
found. xxx.

truth. Sentiments are more or less

the settled sense of the people.
xxx.
3. Folkway
xxx It is composed of usages and
customs.

But a great deal of people's beliefs

and traditions have survived in the
form
of
telling
parables
(talinghaga) and riddles (bugtong).

Folkways or kaugalian are rational

and widespread habitual courses of
actions or practices (ugali) which
have been followed and enforced by a
group of people. xxx.

(id.,; underscoring supplied).

2. Folksaying

xxx Thus in the early times, folkways

provided the first sources of rules
xxx. The obligatory nature of the
folkways stems from the deep-seated
desire of the members of the group to
keep the respect and esteem of the
group by upholding them. xxx. Thus,
folkways or kaugalian have become
definite
norms
of
activity
and
conduct. xxx.

This element of the folksoul is

composed of the opinions xxx, the
rural reflections of a people. xxx.

The folksaying is composed of the

proverbial maxims (salawikain) and
sentiments (sabi) of the people.
Maxims are short pithy statements
containing a general doctrine or

4. Folksong

xxx This form of expression of a

people's
interests
and
feelings
contains their rejoicings (diyuna),
lamentations
(panaghoy),
longings
(mithi), and aspirations (adhika).
xxx.

xxx This category, broadly known in

Pilipino as sining, is composed of
the skill and art peculiar to a
people. xxx. To a great extent the
first
objects
were
basically
utilitarian or symbolic. Later came
the objects of beauty and color. xxx.

5. Folkdance
(id.,
92-95;
supplied).
xxx It is possible that they were
regarded as religious ceremonies in
the beginning. xxx.

underscoring

BACKBONE OF THE HISTORICAL SCHOOL

Pascual writes that from the viewpoint of the
historical school there are two important points
that stand out:

xxx There are appropriate folk dances

dedicated tot he people's object of
reverence and awe; folkdances which
have to do with ceremonials like war
or hunting; folkdances connected with
celebrations or play like wedding or
thanksgiving; folkdances related with
work like planting and harvesting;
and folkdances which have to do with
love and affection like dances of
courtship, rejection, or fertility.
xxx.

First, the state is regarded as the

highest expression or personification
of the volksgeist or diwa of the
people. Second, the law lis found and
not deliberately made. (id., 86;
original underscoring by the author).

THE STATE: HIGHEST PERSONIFICATION OF THE

FOLK-SOUL AND FOLK-MIND

6. Folkart

development of the people. In another

way of saying it, the body politic is
considered
by
historical
jurisprudence as the final juristic
personification
of
a
nation
or
people.
(id., 87-88, citing Prof. Puchta, who
wrote that "the institution of the
State is the highest act of a
people.").

As human relations progressed from family or

clan to community and further to large-scale
territory, a sense of national awareness grew among
the people, "where the individual, without shedding
his narrower relationship with his family and
region, became related, and, in certain instances,
even subordinated, to the national interests." (id.,
87).
Following
the
above-mentioned
pattern
of
expansion of human relations of the people, the
process of keeping peace and order grew apace with
it. At the family-clan level, a direct appeal to the
head of the family or clan was enough to resolve
human conflicts. As progress continued, something
like a communal type of dispute resolution mechanism
emerged.
Eventually,
as
progress
became
more
complicated, the pattern of dispute resolution and
maintenance of peace and order gave way to the more
complex machinery of the body politic, i.e., the
State with a national government, where the reins of
government were placed in the hands of, and
practiced by, a professional group in the community
and where the people were bound by common centers of
interests and purposes.

LAW IS HISTORICALLY DETERMINED

In
the
view
of
the
historical
school,
therefore, "the law is not deliberately made by the
effort of human reason, but is the product of common
conviction xxx, the folk-soul (which) awakens this
conviction xxx, and (that) the law is historically
determined." (id., 88). In the words of Mr. Justice
Cardozo, "history built up the system and the law
that went with it." (id., 89). Quoting Dean Pound,
Pascual writes:
xxx Reason alone cannot work miracles
in legal development nor work wonders
in
constitution
making,
decision
making, codification, or legislation.
The growth of law is a historical
process. It does not proceed from the

xxx The State is thus considered as

the highest expression of the folksoul or diwa of a people. Indeed, it
is the highest national structure
erected
by
the
socio-political

peremptory or arbitrary will or wish

of the legislators or judges. xxx.

legal history the Philippines, as a nationstate, has achieved a remarkable degree of

maturity,
self-confidence,
direction
and
vision.

(id, 88, citing Dean Pound, 36

Harvard Law Review, 802, 822 [1923]).

The Philippine knows its roots. It know that

its people must share common values and a common
national vision if it were to continue to grow and
mature as a nation.

RELEVANCE AND APPLICABILITY OF THE HISTORICAL

SCHOOL
TO THE PHILIPPINE SETTING

It knows that its legal system ought to be

based on the thoughts of its heroes and founding
fathers (its nationalistic sense of achieving its
own destiny as a people) and that it must be founded
on the spirit of its shared cultural values, i.e.,
its "oblutiacs" and national consciousness or
national spirit, which its people have shared, lived
and practiced since time immemorial -- among fellow
Asians, long before the Westerners "discovered"
Asia.

Law is an experience and it relates to

human life (folk-soul and folk-mind) itself; it
is found, not imposed. This is the most
fundamental precept of the historical school.
"Asian values" differ from those of the
Western world.

However, the Philippines also knows that -- in

the light of current trends towards globalization,
whereby the whole world begins to shrink into one
small
global
village
whose
constituents
must
interact with and learn from each other if the world
were to grow and survive in peace and stability -it must be open to other schools of thought in legal
philosophy and, in fact, in all other areas of human
life.

Despite the fact that for a while since

1946,
the
Philippines
has
suffered
from
"identity crisis" brought about by more than
three centuries of Spanish colonization, fifty
years of American rule, and five years of
Japanese regime, it is safe to say that at the
present stage in its contemporary political and

A legal system that is divorced from the spirit

and the soul of the people, one that is dictated
upon on the people without their consent, is
destined
to
be
rejected
by
its
supposed
beneficiaries
and
its
supposed
source
of
sovereignty.

THE LIMITATIONS OF THE HISTORICAL SCHOOL

The law is the very identity, the soul, the

spirit and the core of the people. It thus must
harmonize in a beautiful cultural and philosophical
symmetry with their oblutiacs. Otherwise, it is
doomed to fail, to be forgotten, to be ignored, to
be rejected -- and, worst, to be a cause for
rebellion and dismemberment of the nation, instead
of being its unifying and stabilizing fiber.

The historical school is useful in explaining

the origin, growth and development of law and
jurisprudence
and
in
suggesting
a
conceptual
framework that states that law and jurisprudence, if
they were to be binding on a people, must respect,
promote and proceed from their national soul,
spirit, consciousness, customs and tradition.
Despite its usefulness as a tool of analysis,
however, the perspective of the historical school is
limited, especially in the modern times and in the
light of international law, in that:

The Philippines is a multi-cultural society,

with at least eight major dialects (Tagalog,
Ilocano,
Panggalatok,
Bicolano,
Kapampangan,
Cebuano, Waray, Ilongo-Hiligaynon), not to mention
the dialects of its various cultural minorities
(Tausog, Ibanag, Igorot, Aeta, Mangyan, Tasaday,
etc.).

* It fails to give proper importance to the

fact that in certain fundamental legal issues, like
the tenets of inherent, inalienable and universal
human rights, there are basic principles of law and
jurisprudence that are, indeed, universal and
objective in nature, regardless of time and space,
so to speak, and regardless of location and culture;
* There are certain principles, especially
those of morality and ethics, as they relate to law
and jurisprudence, which are immutable and objective
in character and which proceed from an Ultimate
Source or an Absolute Good, Enlightened Reason, or
Natural Law and Natural Justice, regardless of

Integrating their customs and traditions into

the national legal mainstream, pursuant to the
policy of multiculturalism (as in the case of the
United States, Australia and other countries)
requires serious study of the precepts of the
historical school law and the participation of the
different branches of the social sciences.

10

A COMPENDIUM OF THE VARIOUS

SCHOOLS OF THOUGH IN LEGAL PHILOSOPHY

cultural and racial origins of peoples and political

boundaries of men.
* It tends to discourage law reform.
* It tends to promote juristic instability as the
oblutiacs of various cultural minorities may not be
in line with the shared mainstream oblutiacs.
* Some customs are per se barbaric, inhuman and
unreasonable.

Law is evolutionary; it arises out of customs

and traditions; and it develops like language. This
is a basic postulate in the historical school of
law.
Legal philosophy is rooted in the history of
philosophy itself. When one studies the philosophy
of law, he is forced to study the history of
philosophy
itself.
Philosophy
means
"love
of
wisdom." The ideal law or legal system is one that
is rooted in wisdom, reason and truth -- as against
force, sanctions, and power. Law and justice are all
about wisdom, reason and truth.
There is a need to discuss the salient thoughts of
the other schools of legal philosophy which have
emerged from the Greek period, the Roman period, the
Medieval period, the Reformation period and the
Modern period. They, too, have their individual
shares in and contributions to the growth and
development of the legal and philosophical systems
of mankind.

No one school of thought is able to monopolize

the full explanation and study of the "general
theory of law" or the "ultimate science of
jurisprudence."
Perhaps
each
school
of
thought
has
its
particular use for certain times and places or its
own relative wisdom viz certain issues at specific
times and for specific peoples.
In the end all schools of thought converge on these
basic common grounds and goals: truth, justice,
freedom, peace, mutual respect, fairness, goodwill,
compassion, wisdom, and, most of all, the idea that
mankind is a family of pilgrims travelling to their
final destiny.

A. POSITIVIST SCHOOL
This school of thought developed at Yale,
Oxford, and Cambridge beleves 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

11

("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.
B. IMMANUEL KANT
Kant was an advocate of the natural law theory.
An advocate of human dignity (man as end in
himself), supremacy of reason and free will (as Godgiven and inherent in man), equality, freedom, and
mutuality of rights, and universal law of morality.
It is reason that makes law and obeys law. Man
knows what is natural right or natural law because
he is rational and the precepts of natural law are
inherently
written
in
his
heart
and
mind
(conscience).
"Practical reason" (the "good will" in man; the
"empirical imperative") that makes law and compels
the conscience of man to obey the law. Duty (to obey
and revere the law and to do good to fellow men) is
the highest virtue. Doing an act not out of "duty"
(good will) is immoral, though it may be legal. His
ideal society is one where all men possess the
virtue of duty to do good.
Man is a moral individual. He is not a chattel.
Moral rightness is a matter of "motives" and legal
rightness
refers
to
"external
acts."
In
his
Metaphysics of Ethics, Kant wrote, "Every action is
right which in itself, or in the maxim on which it
proceeds, is such that it can co-exist with the
freedom of the will of each and all, according to a
universal law."

12

Kant
criticized
Rossaeu's
social
contract
theory because Kant believed that human rights are
not contracted but are inherent in man (dignity,
freedom, equality).
In a sense, Kant and St. Thomas agree that law is
based on reason for the common good; that law is
universal; and that natural law is inherent in the
heart of men.

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.

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.

D. MODERN LEGAL REALISM

It is sometimes called "social legal realism,"
"modern legal realism," "American legal realism,"
"theory of ethical and legal pragmatism (empiricism)
and experientialism." Its proponents were Sanders,
Dewey, Storm and Holmes.
It believes that the law is what the courts say
it
is.
Unless
a
case
arises
out
of
the
interpretation and enforcement of a written law,
there is no law because there is no judicial
interpretation. A law is merely a law on paper
unless a case arises to interpret it.
Law is pragmatic, empirical and scientific. It
is also relative, flexible and dynamic.
The source of law is the social experience of
the people. The school of modern legal realism
criticizes
the
natural
law
school
or
the
philosophical school because it believes that law
has no metaphysical source. The end of law is

13

"social contentment". It is an instrument of social

control.
It focuses its study on "the law that is", not
on "the law that ought to be."
Moral norms and natural law postulates do not
decide court cases or determine social behavior. As
stated earlier, the law is what the courts say it is
and
how
the
courts
interpret
and
apply
it
(jurisprudence). That is the true source of law and
the nature of law.
Fact-finding is the most difficult and the most
crucial task of courts. The judge, who determines
and applies the law, is a real person, an imperfect
human being, with biases and prejudices, and
affected by all kinds of "metalegal stimuli". He is
subject to all kinds of real socio-psychological
pressures.
In modern legal realism, congressional acts are
not law but are a source of law. It is the
adjudicative process of the judiciary which defines,
interprets, and applies the law. In this school of
thought, the emphasis is on the judicial process.
Justice is equated with equality. The official
promulgation of a law is not necessarily equal to
the justness of its contents.
Out of this school rose the "critical legal
studies movement" in the United States, which,
influenced by modern radical social theories, looked
at law as being imposed by the ruling class or elite
in society who controls the tools of production. The
movement advanced the vision of positive equality
(free open society), with law as an expression of
the folk-soul of the people.

The movement criticized the doctrine of stare

decisis because it entrenched existing injustice in
the legal system and that it protected the ruling
elite. It argued that there were "indeterminate
factors" in the judicial process which influenced
the dynamics of law. It assailed courts for moving
from legal analysis and reasoning to law-making
(judicial legislation and judicial activism). It
argued that legal objectivism and legal formalism
(legal positivism, the coldness of the law, and the
doctrine of dura lex sed lex) did not serve
democracy
and
justice
and
that
many
legal
procedures, rituals, formalities and technicalities
impeded the administration of justice and alienated
the people from the justice system. It exposed the
weaknesses of the idealistic concept of democracy,
i.e. popular democracy versus elitist democracy, and
it called for the democratization of republicanism.
E. MARXIST OR COMMUNIST SCHOOL
Karl Marx applied Hegel's dialectical method. He was
the proponent of "dialectical materialism." From
this theory proceeded the concepts of "class
struggle" (laborers versus capitalists), supremacy
of the State, and the inevitability of war among
capitalist states caused by competition, greed and
technology.
Arguing
for
collectivism
and
centralized
economic planning, Marxism identifies with the
proletariat (workers).
There is a perpetual struggle between the
productive forces (labor) versus those who control
the tools and modes of production (capitalists).

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Human history is the history of class struggle,

class antagonism, and the exploitation of one class
by another.
Marxism calls for the absolute abolition of
private property. Wage labor does not create
property but it begets capital for exploitation by
the capitalists.
Three
major
theories
predominate
Marxism:
historical materialism, surplus value, and class
struggle. Historical materialism provides that the
economic system is the infrastructure of the
political system (economic determinism). The theory
of surplus value provides that labor is a commodity
that creates surplus value which is exploited by
capitalists.
The theory of class struggle provides that only the
working class can destroy the old system and
ultimately create a classless society.
Law is a product of the economic system of
society. The ruling elite (capitalists) determine,
define, fix and impose the law on the exploited
working class.
When the working class shall have ultimately
succeeded in destroying the old system, a classless
society will be born, and state and law will "wither
away" (utopia). In the interim (socialism), the
state must keep class conflicts within bounds of
order (hence, the need for centralized economic and
political planning, with one political party in
control of the state whose vision and mission are to
serve the interests of the working people).
Lenin wrote that state and law are instruments of
class oppression. "The workers must destroy the
state, and not simply seize it." In the transitional

stage, the "dictatorship of the proletariat" is

necessary to smash the control of the capitalist
class. When utopia is achieved, the people govern
themselves (self-government), class struggles ends,
classless society is created, state and law wither
away, communal life rules human relations, and the
state owns all means and modes of production.
F. POLICY SCIENCE SCHOOL
The policy science school of law developed at
the Yale School of Law. Expounded by Lasswell and
McDougal (Yale University), the policy science
school argues law is not a mere body of rules, that
it is a continuous process of democratization of
social values, that it is a means for the equitable
distribution of the social values, and that the
seven basic social values (power, knowledge or
enlightenment, respect, income or wealth, safety and
health, liberty and equality) should guide lawmaking and the legal ordering of society. These
values are translated by means of policy guidelines
of the state. The policy science school is thus an
advocacy of social values.
G. NATURAL LAW PHILOSOPHY
The natural law school of legal philosophy was
advocated
by
the
Catholic
Church
and
its
theologians, foremost among whom was St. Thomas
Aquinas. The Catholic Church dominated the medieval
period and it had the best opportunity to develop
the philosophy of natural law during such period.
St.
Thomas
wrote
the
voluminous
Summa
Theologica.
He
described
natural
law
as
the

15

participation of man in eternal or divine law thru

his gift of reason. A law which is contrary to
divine law is no law at all. A law is obeyed because
of the persuasion of reason (reasonableness test).
St. Thomas adopted and christianized the thoughts of
Aristotle, a great Greek philosopher.
The precepts of natural law are inherent in man
and are written by God and reason in his heart, e.g.
the quest for justice, dignity, compassion, freedom,
truth, love, equality, and peace.

He agreed with Roussaeu that in the "true

state" it is the "universal" (the law) that governs
and "the individual of his own free will subjects
himself to its rule." It is part of the concept of
man that he is free, Hegel wrote. The paradox was
that in his latter years, he opposed the democratic
or republican form of government because of its
"subjectivism
and
atomism."
He
preferred
the
authoritarian state.
Hegel justified war or revolution based on and as an
application of the dialectical method (struggle of
ideas).

H. HEGELIAN PHILOSOPHY
Immanuel
Kant
influenced
Hegel
in
his
philosophy of law. Like Schelling and Fichte, Hegel
was an "speculative idealist" and an advocate of
rationalism: "Whatever is rational is real and
whatever is real is rational." To him, reason is the
ultimate essence of the world or absolute reality.
Every concept leads to its opposite (thesisanti thesis-synthesis) and that there is an unending
progress from thesis to antithesis and to synthesis,
the latter being the reconciliation of thesis and
antithesis on a higher level. This is called the
"dialectical method" (the triadic process).
To Hegel, ethics culminates in the state and
the state is the ethical idea and reason turned into
reality: "In the organization of the state, ... the
divine enters into the real." The state is a
manifestation of the divine will. He wrote that all
history is an evolutionary process whose
ultimate goal is true liberty, and that liberty is
only possible in a state, where man reaches his
dignity as an independent person.

I. JURAL AND NON-JURAL LAWS

Jurisprudence is a science of how the law is
applied by the courts. It answers the question: What
does the court say? Its basic foundation is the
doctrine of stare decisis. The United States and the
United Kingdom, being of common law origin, are
precedent-oriented, while most countries in Europe,
which are of positive law origin, are code-oriented.
Jural law is the "lawyer's law" enforceable in
court, e.g. statutes, administrative rules and
regulations, opinions of jurists, private contracts,
and court decisions.
Non-jural law is the "unwritten law", e.g.,
customs and traditions, which may not be enforceable
in court and yet influences the way jural law is
applied by the courts. Divine law, moral law,
natural law and the folk-soul of the people may be
said to belong to the category of non-jural law.

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