LEGAL PHILOSOPHY REVIEWER

JURISPRUDENCE The general philosophy of

law which deals with the nature and elements of
law. The identification of the elements of law is
material to the legal ordering of the society,
which includes state, sovereignty, legal relations,
legal persons, legal facts, and legal things. Thus,
it is concerned with the technical aspects of law
as discipline.
5 Schools of Thoughts (HTPFR)
1.
2.
3.
4.
5.

Historical School
Teleological
Positivist
Functional
Realist

What is law? (RA-OS-WN-C-ON-D)

In general sense, law is any rule of action or
order of sequence from which any brings
whatsoever either will not or cannot, or ought not
to deviate.

It is a rule of action because it

productive of distinct legal effects and
consequences.
It is an order of sequence because they
are immutable for they do not alter with
time and place, and they are absolute for
they do not depend on the human will but
operate
inexorably
admitting
no
exceptions.
Point of Non-Deviation Laws are
jussive in character which left people the
(a) determination to abide, (b) obedience
and compliance, (c) no alternative action
but to abide.

It could be any rule or opinion given by an

agency of the state of by a jurist, or by
authorized officials of the government.
Any contract of agreement which is
binding in character provided that such
agreements are not contrary to law.

COLLECTIVE SENSE
Law is employed as a collective or
aggregate term when it refers to the gross
or bulk of specific or particular laws
pertaining to one subject manner (i.e.
Civil Law, RPC).
ABSTRACT SENSE
Law without the definite article preceding
it or when it is preceded by definite
article. Made up not only of body of
precepts but also a body of innate and
received ideals.

NON- JURAL LAW. Laws in metalegal sense that

provide distinction between the connotations of
law in such branches of learning, theology,
metaphysics, ethics, and physics.
DIVINE LAW
In general sense, it is an entire system of
perfection which God, in his infinite wisdom, has
imprinted in the whole of nature to govern its
operations.
In strict sense, law is a religious faith which
concern itself with the concept of sin and
salvation.

JURAL LAW Enacted by Legislature

Comprises three (3) senses:
Particular Sense
Collective Sense
Abstract Sense
PARTICULAR SENSE
A statute which is written enactment of
the legislative branch of the government
with
attached
sanctions
for
its
enforcement.

NATURAL LAW (NL)

It is a metaphysical concept that started
in Greece. The concept of natural law was
intertwined with the notion of law of
nature in accordance which everything
happens as they should.
It is the rational harmony and order of
divergent things and events, including
human relations.
An immutable unwritten law and the
infrangibly law ordained from above.

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PROPONENTS OF NATURAL LAW
MORAL LAW. Anchored on ethical foundation .
PLATO. He believed that the way for the
development of the natural law as a discipline to
which human conduct and relationships must
conform in order to realize both the individual
and common good.

PHYSICAL LAW.

ARISTOTLE. What is due and proper may

sometimes be contrary to what is fair and equal.
STOICS. All men are equal by divine right since
all men are if divine origin. Human conduct must
be brought in agreement with the abiding
character of nature.
EPICTITUS.
He viewed natural law as a discipline as if
it were engraved in the hearts of human
being. With material dependence of
human, their moral nature and good faith
are defeated.
Natural law became the core of human
personality and dignity enabling person to
act with righteousness and justice.
ST. PAUL.
Those who have no knowledge about law
demonstrate the effects of law, operating
in their own hearts, their own conscience,
endorse the existence of such law, for
there is something which condemns or
commands their action.
He do not believe that conscience is
guided by customs and superstitions, but
instead it is guided by love, reason, and
these are the dictates of nature law.

Founded on the law of nature.

These are order of sequence and uniform

relations between things and objects.
These are physical phenomena that both
human being and dumb creatures feel and
see. The uniformity and orders of
sequence are constant and regular that
they are completely depended with
confidence and belief.
Characteristics
Imperativeness. They are fixed
and unbreakable.
Regularity. There is no break in
sequence and constancy.

NORMS
Generalized description of observed facts
stated by discoverers.

HISTORICAL SCHOOL
Provides the development of law in
the society. Two historical elements of
law: (1) Changes in social existence of the
people, and the progressive conditions of
their politico-legal development. Thus,
under this school, the nature of law and
its concomitant problems cannot be
understood
without
reference
or
appreciation
of
the
socio-political
phenomenon in the law has grown.

PRECEPTS OF NATURAL LAW (RJFE)

Righteousness
Doing what is right.
Justice
The attribute of administering that which
is just among persons.
Fairness
quality of being honest
Equality
character of being impartial

2 Basic Points Historical Jurisprudence

1. State is regarded as the highest
expression or personification of the law.
State is the invisible personality of the
people.
2. Law is found and not deliberately made.
Deliberately not made by the effort of
human will but it is discovered in the
conscience of the people.

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Thus, the growth of legal system is closely
related to the growth and development of a
people.
TELEOLOGICAL
Founded on the philosophy of natural law. Under
this school of thought, natural law has a great
more deal in shaping the concept of law. It has
the most potent force in the development of legal
institution and legal concept. Its perfection is
achieved by the precepts of natural law.

GREEK CONCEPT - PROPONENTS

The three significant philosophers from Greece
who advocated natural law under the teleological
school of jurisprudence include Socrates, Plato,
and Aristotle. There unassailable starting point
in the study of nature of law is through the
moral nature and good faith of human
beings, not power or might is need for humans
to live harmoniously with one another.
SOCRATES ABSOLUTE JUSTICE
The following consideration exhibits the moral
nature and good faith of a person guiding him
over statutes of states:
1. No person is intentionally bad or evil
because of his understanding towards
justice.
2. Only temperament person knows himself
and with that, he is capable of controlling
his emotions. They are good, happy, sound
people, being able to judge whether his or her
acts and their consequences would be just or
unjust.
PLATO RATIONAL JUSTICE

He posited the concept of law of justice

yielding to rational mind. With this, human
are capable of discerning justice from
injustice in their minds.
Rational justice is sufficient to enable human
beings to attain their moral nature and good
faith by keeping their self-respect, by doing
good, and fulfilling their proper function in
society.
Law is an instrument of doing justice in the state,
that is to say, preserving peace and harmony
therein. Rational justice dictates that every

individual should attend to his or her own

function, and by doing that, there is justice.
ARISTOTLE PARTICULAR JUSTICE
For him, justice grows out of the sense of
fairness and equality. This can only be realized
by rendering as nearly as possible to every
person what he or she is entitled to on the rule of
law.
For these Greek proponents, law is a
product of justice and equity. Its fulfilled
reality is found in the achievement of the
precept of natural law in the legal order
the said precepts are the potentiality of law
which people are to conform their actions
because such an end is part of the natural
order of things.

ROMAN CONCEPT PROPONENTS

Cicero. He introduced compulsion as an
element of law. He posited the idea that
the law cannot be an effective means of
social control on the basis of rationality
alone but must also be able to compel
obedience.
Law is a natural force that effectively
control society, and its natural function is
to summon the people to obey it by
means of command and stop wrong
doing by means of prohibition.
He believed that if a man received the
gift of reason, he has received the gift of
law, and therefor has received justice.
GAIUS. Laws that are derogatory of the
precepts of the natural law are not laws
at all. They do no contribute to the
maintenance and preservation of lawness
but rather conducive to lawlessness.
He advocated the legal cleansing of
unnatural laws whereby any abnormality

LEGAL PHILOSOPHY
or irregularity in the legal order could be
adjusted to comply with the end and
purpose of law.

REVIEWER
but it is willed by the source in the
society as a whole which is concerned
with the common good.

THOMAS AQUINAS.
Law is an institution ordained by God.
However, the people are bound to
obey secular rules only to the extent
that the precepts of natural law are
met.
He believed the primacy of a higher
aw over positive law which is the
mainspring of Thomastic philosophy.
He posited the idea that universal
good can be achieved through the
combination of the rational soul and
human will of every person.
With
this, Aquinas used Sophia, the human
reason to arrive to such end because
he believed that right reason is the
institution of human to do good and
promote food and avoid evil which he
believed where the precept of natural
law are based on.
However, human
reason
cannot
access the divine law, only its
precepts.
Thus,
human
reason
influenced by physiological sensations,
resulted to varied human ideas on
what is right and just which therefor
lead to humans non-discovery of
universal good and tends to separate
positive law from the precepts of
natural law.
Human law has the nature of law
when it partakes right reason, when it
deviates from that, it is no longer law
at all for it is the governing rule of
human conduct.
Law is an expression of righteousness
which does not proceed from mere
impulse of just anybody in the society

AQUINIAN JUSTICE
Ethical value
Inherent in every person.
Juristic Norm
Rendering to each one his rights by
constant and perpetual will and giving
whats due to them.

IMMANUEL KANT
Through his transcendental philosophy,
he posited the idea that the precepts of
natural law are true and certain and
independently of human feelings and
inclinations. Those precepts are not
prompted by sense of experience but by
ethical attitude to do what is right and
avoid what is wrong using the unique
faculties
of
human
consciousness,
namely,
thinking,
volition,
and
judgment. (Principle of Rightness)
The possibilities for the application of the
principle of rightness and categorical
imperativeness in the socio-legal order
is supported by the objective conditions
of life in the society. This is evident to
people through their vivid reasoning that
some things are simply right and just
while others are simply wrong and evil .
Conduct and decisions which are in
accordance to PR & CI are truly natural.
UTILITARIANISM
Formation of values and judgments it is
the intellectual and aesthetic happiness
or pleasure that are the highest good.

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Happiness is the measure of goodness
with the general purpose of society.
and
badness
of
acts
and
their
While individuals have their own interests
consequences based on the hedonistic
to consider they cannot ignore the
calculation.
interest of the society they are part.
Nature of Law
Pleasures not to be sought
Pains ought to be avoided in the legal
ordering of society.
JEREMY BENTHAM
Primacy of individual interest.
Law is a system of social control
directing and governing persons to the
maximum of happiness and to the
minimum of misery. Thus, rules should
be judged by their tendency to promote
happiness and avoid pain which would
lead to the ends of law, to wit: provide
substance, to produce abundance, to
encourage equality, and to maintain
peace and security and all this can be
accomplished by direct pursuit of
pleasure and avoidance of pain.

Purpose is the prime mover of

law..Principle of purpose is what
operates in the legal ordering.
To realize the partnership or concurrence
of individual and social purposes, the
collective
society or the politically
organized society applies its influence on
the people by means of egoistic and
altruistic levers social mechanics.
In contrast to individual utilitarianism,
the answer to the problem of the nature
of the law for social utilitarianism is to be
found in the principle of purpose, that is
to say that that law is shaped by
purposes of society and that its thrust is
the maximization of its interest.
HEGELIAN CONCEPT

To facilitate the criterion, a measure of

the utility of pleasures and pains to
evaluate the effects of acts and conduct
on the greatest happiness of the greatest
number of individuals in the community.
Extensity
Intensity
RUDOLF VON JHERING SOCIAL
UTILITARIANISM
The law should address the realization of
the partnership of the individual and
society. In other words, there should be
concurrence of selfish individual interests

POSITIVIST PERSPECTIVE
The positivist approach to the
problem of the nature of law are the

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following: (1) separation of law from
the people and that which every man will
moral law, and from (2) natural law.
have so, no man can say is unjust.
John Austin.
Law is not necessarily interested or
anxious for the norms of morality or
moral considerations do not precede the
law, although they may indirectly
influence it. The relationship between
law and morality is only accidental, not
direct has no immediate concern.
Moral Law 1ST Characteristics
Legal positivists are persuaded that the
legal order can exist without conscious
regard for the norms of morality,
although its influence cannot be denied.
There are legal rules that do not
measure up to the norms of moral law
but they do not cease to be legal rules
they continue to command the obedience
of the society.
Natural Law 2nd Characteristics
Legal positivist viewed that precepts of
natural law as vague, for their meaning
are not shared in common by everybody
what it means are matters of personal
understanding and even discrimination.
THOMAS HOBBES
There exist a sovereign which is not
subject to the laws for having the power
to make and repeal laws. To the care of
sovereign belongs the making of good
laws. With good laws, he meant not
just laws for laws cannot be unjust
since they are made by the sovereign
power and all that is done by such power
is warranted and owned by everyone of

JOHN AUSTIN
Discarded the idea that positive law is
void if it is not in accordance to natural
law. He believed that law is detached
from morals and natural law. It has a
criterion or test of its own that rest on
the triune concepts of sovereign,
command, and sanction. This ismply
means that any violation of the
commence issued by the supreme
political superior is an infraction thereof
and subject to sanction.
HANS KELSEN
Conceived the pure positive law theory.
It is a theory that considers only human
norms,
not
norms
from
other
superhuman sources and that it does not
try to consider the law as the offspring of
moral and natural law, as a human child
of divine parent.
For them, law is simply not pure when
cluttered with axiological norms. Thus,
the validity of the norms of positive law
no
longer
depend
on
their
correspondence with ethical norm or
precepts of natural law it posits no
moral connotations.
Process of Purification of Positive
Law
Kelsen believed that law must be
presented in its empirical form and that
it should not be politicized