Sie sind auf Seite 1von 10

Talaman, Patricia A.

Philosophy of Law
Reisman & Shreider: Jurisprudence, Understanding and Shaping the Law

Chapter 1. Jurisprudence. Is It Relevant?
The legal profession is extremely expanded. It is stated by Reisman that The
legal profession is tremendously diversified, and lawyers tend to be so extremely
individualistic that their differences outweigh their similarities. Usually or
stereotypically, legal work are found in courts and litigations. What most people and
lawyers themselves do not notice is that lawyers also and shall also play roles in
the making of law, invocation of law, termination of law, and appraisals of whether
large areas of legal regulation are achieving their objectives and if not whether
things can be done to change it and so on.
Reisman stated that the key aspect of politics is crafting the future.
Clients, businesses, or the government have no idea what kind of future they desire,
but they know what they ought to possess, and thats where lawyers come in.
Reisman stated in beautifully constructed words that The lawyer as technician
plays a part in bringing about the future even when he may not wish to, even when
he may be unconscious of his role.
Reisman gave an example of a non-court problem likely to be encountered in
beginning the practicing law. You have a client, Suzuki. Suzuki plans in investing in
US and in establishing a subsidiary manufacturing component in Penntown. US Law,
Pennsylvania Law, and the Local Law has been forwarded to Suzukis headquarters
in Tokyo. Still, your client wants your firm to visit Penntown and report more fully.
Why is that? Simply because your client wants to know more about the constitution,
statutes and by-laws of the community they may enter. A description of the written
law alone cannot give your Japanese client a full, rounded or dynamic picture of how
decisions are actually made in Penntown. Now what is the right thing to do upon
reaching Penntown? You study their behavior in a very specific sense. You are trying
to guess how these actors will behave under a variety of conditions that may prevail
in the future. To be able to do this, you might want to look in the past. What
happened in the past, and what happened in the future. In this, you will be able to
predict what behavior might take place in the future under similar or different
conditions. You must understand how decisions are actually made in Penntown if
you are to advice your client. You cant simply inform your client about the formal
rules because Penntown might be a very exceptional case and some rules might not
be applicable to them. In short, you must understand the processes in which
decisions are taken in order for you and your client to begin. You must protect your
client, because it means money. But you must not only look into courts and their
behavior. You must also dive into those formal, informal, organized, and unorganized
decision-making agencies, groups, and individuals which might have an impact in
your clients interests. You must find out WHO those agencies and people are. These
cannot be found in legal texts.

Heres what Reisman think should be done. You arrive in Penntown, check in
the main hotel, go down the bar for a drink and look for the regulars. Ask them
who the mayor is, etc., and you ask who the boss is. In asking who the mayor
and the boss is, you would know that there is a possibility that there is a
discrepancy between control and authority. This is so old school. But what
Reisman is trying to say is that, not everything are written. There are many
overlapping and inconsistent systems of law: federal, state, local, religious, internal
law of corporations and business entities. In pleasing your client, you must identify
the effective power process in that particular community.
Even though economic decisions may be influenced by Penntowns demands
of labor groups, church, environmentalists, moral majoritarians, the ever-present
media, and illegal groups like gangs and crime syndicates, the point is what you and
your client need are information that formal legal education rarely addresses.

A Theory of Law from the Policy, Perspective, in Law and Policy

Reisman gave a situation. Sheikh Ibrahim is a very wealthy man who owns
the little oil state of Darab on the Persian Gulf. He sent his youngest son Fuad to an
American school. Fuad is excellent but is very poor at his social skills. Ibrahim now
wants Fuad to join in a fraternity and he hires you to observe and describe how the
Theta fraternity works. If you would send Ibrahim the documents of incorporation,
constitution, by-laws, and the list of current officers, he will not be satisfied because
the lack of social skills of his son and the fraternity by-laws are different from the
books and reality. What should be done is to spend some time in Theta and discover
that there are right ways of doing things and violations which involves serious
punishments that are not prescribed in books of laws such as the by-laws drawn up
a generation ago by New York men. This is the case because those right ways are
not right at all for the fraternity members. It is possible that that punishments are
determined on who youre dealing with or on who you are, are you rich, powerful, or
a nobody.
For example, cheating is prohibited in Theta and in the university policy. In
the Constitution of the National Theta Society, Article 4(3) states that cheaters as
well as those who fail to report them will be expelled from Theta. But an informer, a
student, who filed a complaint of cheating got isolated and he resigned after a
Another example is that House Regulation No. 9 prohibits females from
staying in a resident members room beyond 9pm to prevent sexual relations. Its as
if they cannot engaged in sexual relations before 9pm. A fine of $10 was set in
1926, and to this day they prefer to pay $10 which is cheaper than a motel.
Moreover, the collection of said fines goes into their funding of their annual Devils
The examples point out that if you give Ibrahim and Fuad the formal rules,
Fuad can get expelled. Or even worse, he might not enjoy having females for the
night. And these will be blamed on you.
Another thing is that you should look NOT into who should be making
these decisions according to certain texts, but who is actually making

them. Because for example the by-laws may prohibit certain discrimination of
members, but in practice, there may be absolute discrimination in certain
These examples could be categorized as operating under a Process or a
system which have been developed in modern science to refer to the many
interrelated featuressocial, psychological, biological, ecologicalhuman behavior.
There are different Thetas. For example, Theta 1 may be located in a Baptist
College. Theta 2 in a region which practices sharp and open discrimination. Theta 3
may be in an urban environment which expects members to have cosmopolitan
values of university life. But what is important to Ibrahim is how Theta decisions are
A decision and a lawful decision have 2 different definitions. Decision is a
choice. Lawful decision is a choice made in conformity with appropriate procedural
and substantive norms. But one does not simply make an important decision
without processing the facts and elements necessary to come up with a right and
effective decision.
To help decision makers, these are the elements in decision making:
1. Focusing Comprehensively
2. Focusing in Detail on Relevant Features of:
a. Environment
b. Process of effective power
c. Process by which legal decisions are made
d. Outcomesin terms of production and distribution of the things that
decisions involve, including effects on environment.
David Cavera has observed that Law is a problem-solving profession. It is at
the point of translating knowledge, values and ideas into a just and workable plan
that the work of the lawyer and legal scholar is likely to be most useful. Adding to
the statement that law is a problem solving profession, to be more careful in making
decisions, the steps in problem solving are as follows:
First, you determine what you want. Second, what happened in the past.
Third, why did it happen. Fourth, is it likely to happen in the future, and fifth, if not,
what can you do to increase the likelihood of its happening. In more general terms,
its the clarifying of goals; describing trends in terms of those goals;
analyzing conditions that affected those trends; predicting, guestimating,
if necessary, future trends; and inventing alternatives to achieve the goal.
The practice of law is the practice of problem-solving, for yourself, for your clients,
and for the community at large. In David Reismans words, the lawyer will be
helping people determine what they may and what they should want.

The Justices Dilemma

Reisman gave 2 examples. Chief Justice Lopez in Nijotas, a democratic
republic in Latin America which has been seized control by a junta of colonels, was
the only one left in the Bench. These juntas felt that they need Lopez to give the

regime a degree of legitimacy inside and outside the country. Chief Justice Lopez
knew that he will be disposed once his services are no longer needed. What are his
1. Accept his fate
2. Retreat inward and wait for a change
3. Continue as Chief Justice, but his decisions will be to mitigate the evils of
the junta
4. Go into exile and work against the regime from abroad
5. Set himself on fire on the steps of the courthouse in protest over the
6. Join the guerillas in the mountains.

Admissions and Hiring Dilemmas

Arkensota State Law School reserves 20% of the places in each entering class
for specified minorities. Dick White has an average of 76% is not admitted, but 30
minority students with averages of 70% below is admitted. His entitlement of the
relief is not answered but with analysis, Dick White shall be entitled because he
experienced injustice when he knew that he was qualified, yet he was not accepted
due to the majority of people with lower averages.
Lawyers should be cautious of thinking in terms of yes or no. Having
these 2 exclusive options entails a large set of assumptions about social goals and
methods of decision making which influences the analysis, characterization, and
resolution of the hypothetical problems. Reisman stated that Law does not consist
simply of mental exercises about abstract notions or rules but entails making hard
choices. Law is a challenge to action. However, Reisman is not suggesting that the
technical and clerical aspects of practice which often dominate contemporary legal
education are unimportant, but they are of limited and perhaps subordinate
importance. Robert Storey says Builders of the law we must have, but somewhere
in the profession we must find those who can perform the services of architects of
the law. At some point, every lawyer will find that he or she is called upon to be the
Theory and jurisprudent of legal theory is important only if it contributes to
solving problems of our profession and society. If it does not, then there is no reason
why legal theory and jurisprudence are included in our law school curriculum and
not those programs teaching students the matters of real importance.

Appendix. Tools for Decision Making

Who? Observational Standpoint and Self-scrutiny
There are two points of major importance. First. Involving Vantage. You
need to view things not as a member but an outsider. This is not a physical
withdrawal, you just imagine it. For example, you want to improve your behavior in
our classroom. What you should do is to think that you are not part of the class and
in that way you will see a different perspective in your behavior. Second. Observe

yourself. In observing yourself, you will discover and choose which of your behavior
have the potential for distortion. There are 3 potential sources of distortion
described by Reisman. These are the (1) Emotional and sometimes neurotic
tendencies; (2) Parochial tendenciesresult of acculturation within groups; and (3)
Distortions which derive from intense training, an example of which is training in the
law. However, these 3 potential sources of distortion should be determined.
Looking how? Focus.
Reisman suggested that you should start with a macroscope rather than a
microscope. With this, you will have a broader knowledge of the problem you are
facing. But this is limited because you must balance comprehensiveness with
selectivity. Theory is important for focus because it expresses conclusions about
which features, variables and relationships are worth examining and which are not.
Moreover, you need to take account not only of what people say and what is
written on the books, but also what is actually done. What is called for is a FOCUS
that balances emphasis, both on what people say and what they do. Reisman refers
to this as the need for a balanced emphasis on perspectives (what people say and
think; and operations (what people do); balanced emphasis on authority (what
people think is right); and control (what actually will be done). The need for a lens
which focuses on the constitutive process, an ongoing decision process in which
authority and control are deployed to establish, maintain and change over time the
fundamental institutions of decision in any community.
There are two orders of society: public order and civic order. Public order
refers to those sectors in which behavior is regulated by the community with rather
severe sanctions for deviation from the norms prescribed. On the other hand, civic
order are those sectors of society which are not so regulated, but in which behavior
is supported by relatively mild sanctions which do not derive from the state
At what? The targets of observation: Processes of Authority and Control
Mainly, the target is the future. Reisman stated that the whole object of
making social choices or decisions is to change the behavior out there so that in
the future it leads to the production and distribution of values in ways that conform
more to the preference of the decision maker. But you should not only focus in this
process. There is this phase analysis consists of the participants, perspectives,
situations, bases of power, strategies, and what human beings want. However, to be
subjected to authority and control, the values of people must be taken into
consideration as well. Harold Lasswell suggested that what people want specifically
are these 8 values: power, wealth, enlightenment, skill, well-being, affection,
respect, and rectitude.
Again, constitutive process is of special interest to the lawyer as it is
frequently the process of decision through which changes can be economically
achieved. Therefore, Reisman developed these Seven Component of Decision
Functions: Intelligence gathering of information relevant to making social
changes; Promotion having a particular preferred policy turned into community

law; Prescription legislation; Invocation characterization of some behavior

contrary to prescription; Application law on particular set of events and
determination of a sanction; Termination ending of existing prescriptions. A law to
compensate those who had made good faith value investments on the expectation
that they would continue; and Appraisal effectiveness of the entire decision
process, subject to realization and recommendations.
Doing what? The intellectual tasks of decision
Most decisions are likely to be derived from gut reaction, but it could also
be through a more systematic fashion. For example, you are thinking of going to law
school. In what law school will you be accepted, and what law school do you prefer?
In thinking about this, you could come up with a series of tasks you must perform at
some level of consciousness. The proficiency with which you perform them is likely
to increase the chances of realizing your objective. With organizing your questions
and your thoughts, you can come up with a Q&A and could immediately act upon
your decision. First question is which law school? In decision making, there is always
a discrepancy in what you prefer and what you predict. The case may be
that you prefer to study in UP or Ateneo, but you predict that you wouldnt pas their
entrance examination. Therefore, you must resolve the discrepancy by weighing
what you prefer from what you predict.
Reisman mentioned the the task of goal clarification. You could ask
yourself what is your goal, and you could answer your own question, for example is
to be rich, to be a politician, or anything else. Then, upon coming up with a list of
your goal, you will now choose which of them do you prefer to take?
Reisman introduced the trend analysis. This is by reviewing the past.
Reisman stated that Such an inquiry into the past will suggest to you what
strategies are appropriate to adopt, what obstacles you can anticipate
encountering, what resources and allies you can mobilize and who your major
adversaries or competitors will be. In other words, our past teaches us how to live
our future. We learn from it and we pick out the good and leave the bad.
Another is the Factor analysis. This is the academic task of identifying and
analyzing the conditional factors. Your review of past trends will be beneficial in
determining future options and strategies only if you ascertain what context of
conditions prevailed in the past and whether or not that context is identical or
similar in projected futures.
Predictive function is that the law is concerned only with the future.
Reisman explained that its concern is to devise a strategy that will increase the
likelihood of the eventuation of desired events (or avoidance of undesirable events)
in the future. The use of some of the techniques you have derived from past
experiences may be considered to answer whether any of the techniques you have
considered appear to promise success in the future. These are called predictions.
In summary, trend analysis is for historians, factor analysis is for sociologists,
predictive function is for social scientists, and invention of alternatives is for
lawyers. However, although Reisman introduced lots of processes in decision

making, the proper amount of time, energy and other resources to be invested in
making a single decision depends on the context. Taken together, these four items
observational standpoint, determination of focus, descriptions of the target
communities, and the intellectual taskscomprise a complex tool which can make
decision making in any setting more efficient.

Chapter 2. Myths, Multiplicity and Elites: Appearance and Reality in

the Law
Judge not according to appearance. John 7:24

In Reismans article, he mentioned that in Dabastan, United States, bribes to

public officials are against the law. But why is it that they put up this kind of
institution called the spice box, a very large bribe to key officials including the
President and the Chief Justices, imposed upon those interested to put up a
business in Dabastan? Reisman answered this question, in relation to Chapter 1,
that what the law says is not what the law does.
Myth System and Operational Code
The myth system and the operational code are functional creations of the
observer for describing the actual flow of official behavior or the official picture.
However, the myth system is not legal writ large. Under the myth system, legal
fictions are authoritative statements whose patent falseness is, by convention,

never exposed. Jhering called fictions white lies. Bentham called them lies or
swindling. Fiction is not a lie because it does not intend to deceive. It is
consciously false. It is rather a device to circumvent a norm that is obsolete. It
affirms values that continue to be important socially and personally. The myth
system may influence decision. Moreover, the locus classicus of myth systems and
operational codes is probably the Code of Hammurabi, a massive casuistic code
ostensibly designed to guide decision makers of the ancient Babylonian Empire in a
wide range of their official activities. This Code shall be given importance and shall
not be abolished and considered as irrelevant because it expresses the key values
and guidance of the elite and the society in influencing behavior and even the
formulation and application of the operational code.
Reisman stated that the point here is that the formal law which community
members continue to view as law and which they are not willing to dismiss as
survival will not only NOT be effectively enforced, but its violation will be accepted
by those charged with operating it as the way things are done. In conclusion, the
violation practiced is viewed as the way things are actually done, and therefore are
not a violation at all.
As to what I understood, myth system is a positive system that practices are
different from what the law prescribes but it is more for the good of the society.
However, the operational code is more on the negative side where the officials
abuse their power and instill in the minds of the people that such violations are the
practices of the society.
Private Systems of Public Law
It can never be denied that the elites are really elites and enjoy more
privileges other than those non-elite people. These elites however believe that
they bear special responsibilities and this belief made them feel that they must
take certain liberties. They have violated the myth system and replace the said
system with operational code, abusing their authority.
Popular Responses
Legality may be taken to refer to conclusions drawn by members of the
community as to the propriety of practices determined by some method of logical
derivation from the myth system. This means that what the society thinks is the
right practice, although it is a violation, is still followed and obeyed because
majority of the people observe such practices. Moreover, others do not anymore
recognize that such acts are violations because of the routine established by the
myth system and the operational code. For example, a new policeman entering the
duties bestowed upon him will be surprised by confusion as to how he knew his job
would be. He presupposes that his job will be administering justice, but the
practices of his public function is different from what he knew and from what he was
trained for. This is the reality. Nevertheless, that new policeman loses no hope that
in his conscientious objection, a recognition that there was a sort of higher law to
which one could appeal, and that is the higher law said it was possible that a man
who was willing to bear the responsibility could in good conscience take steps he
knew to be good.

Reisman expounded on operational code that Politicians with heterogeneous

constituencies sometimes feel obliged to lie or, put more delicately, to dissimulate,
to conceal their objectives, and in some cases, the irrevocable steps they are taking
to accomplish them. Some operator may secretly delight in the opportunity to
exercise and enhance their power this way, but for other, more reluctant, operators
an element of pathos tones their predicament. They may feel candor and be
revolted by what they are doing, yet they feel themselves trapped by the facts of
The Functions of Discrepancy
Lex imperfect and Lex simulate, in their very ineffectiveness, express and reinforce
the essential distinction between myth system and operational code.
In a factory, as Reisman stated in his example, a certain Bensman and Gerver noted
the importance of the criminal practice to the working of the factory. They stated,
Crime becomes one of the major operational devices of the organizationa
permanent unofficial aspect of the organization. The operations themselves are
performed discreetly, in deference to the ceremonial aspects of law enforcement,
are NOT characterized a crime, and are sanctioned as long as they are controlled by
and serve those in charge.
Operational code provides a degree of suppleness and practicality that the myth
system could not achieve without changing much of its content.
Multiple Legal Systems and Levels
Leopold Pospisil argues that within a single territorial community there are, in
fact, a multiplicity of legal systems and not the single system we have generally
associated with the apparatus of a state.
Pospisil, Legal Levels and Multiplicity of Legal Systems in Human Societies
Traditionalist view means that law is monopolized by the State, or the society
as a whole still persists in many of the recent works on law.
To Ehrlich, law was an ordering of human behavior, in any group of
interacting people, no matter how small or how complex. To him, human society
was not composed of individuals who acted independently, but of people who of
necessity acted always as members of some of the societys subgroups. Thus, the
peoples behavior is not necessarily ordered by the all-compromising state law, but
primarily by the inner ordering of the associations. He also stated that the inner
ordering of the associations of human beings, is not only the original, but also down
to the present time is the basis form of law. He also stated that All attempts that
have been made now to comprehend the nature of law have failed because the
investigation was not based on the order of the associations but on the legal
For example, the recognition of multiple legal systems and levels, on the
other hand, makes the pre-Communist Chinese legal situation understandable and
meaningful. What appeared to a traditionalist as a corrupt, confusing, and
unpredictable system, characterized by an almost absolute disregard of law,

becomes a meaningful configuration of legal systems pertaining to specific groups

arranged into several levels according to the degree of incisiveness of the types of
social groups. Their study becomes a fascinating inquiry into the jural relationship of
the structural units of the Chinese society rather than a frustrating exposition of
confusing, illegal behavior of the Chinese people.
Reisman, A Theory of Law from the Policy Perspective in Law and Policy
The member of the Theta who was expelled for informing on a fraternity
brother who had cheated, conformed to the written code of Theta and of the
University, but violated the actual code in accordance with which Theta members
insisted on living. Conformity to the Thetas actual code, however, might have led to
violation of the Universitys code and expulsion.
Elites in Democracy
The existence of multiple elites reflects the divergence between appearance
and reality in law and is particularly problematic for lawyers practicing in
democracies. Democracies hold the notion that all are equal before the law. A
relatively small group of people known as elites have much more power than others.
Dahl, Who Governs: Democracy and Power
Who governs? Who actually governs in a democracy? Students of politics
have provided a number of conflicting explanations for the way in which
democracies can be expected to operate in the midst of inequalities in political
resources. One answer is then that competing political parties govern, but they do
so with the consent of voters secured by competitive elections.
Mills, The Power Elite
Mills notion of power impliedly includes the notion of authority. Members
of the government and military elites, for example, wield effective power in part
because they are expected by the community to make decisions with regard to
military issues.
Harold Lasswell stated that, The possession of authority is itself power. To
refer to the power of elites without explicit recognition of the role that authority
plays in creating power and making it effective, is to ignore an important
component of effective decision.
A. Reading the material