PHILO CPO The Idea of Law Reviewer Clean 1C 2018

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO
_________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO RONQUILLO
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CHAPTER 1: IS LAW NECESSARY?

Proudhon
The highest perfection of society is found in the union of order and anarchy.
Introduction
In asking whether or not law is necessary at all, other questions arise:
x Is law unnecessary to the creation of a just society?
x Is law evil in itself and therefore an impediment to the fulfillment of mans
social nature?
x In answering the aforementioned questions, it would seem that from the
viewpoint of a less-regulated and properly ordered society law is
unnecessary
x As a guide in this chapter, we must keep in mind the considerations of the
philosophers in answering Is law necessary? Do they reject law
altogether or regard it as a necessary evil?
The Nature of Man Is man good or evil?

x This concept is ideological, (meaning: forming part of our outlook upon the
world) it is how we view the world, man, and society and its manifestations
o Our view of law will be coloured by our general thinking about mans
place in the world, etc.
x When we assert that law is necessary or unnecessary to man, we must
look at mans nature
x When does man attain a truly human condition is it in the existence or in
the non-existence of law?
Nature of Man
View of Law
Man either the incarnation of evil or at best an amalgam of good and

bad impulses constantly in conflict with the bad tending repeatedly
to prevail over the good
Law is necessary as it is an indispensable restraint upon the forces of

evil
Mans nature as inherently good
Law in unnecessary. The ills of mans present condition are external and
these defects can be attributed to mans social environment.
The Law and Forces of Evil (2 Main Views)

Mans nature is intrinsically evil and that no social
progress can be attained without the restraints of penal
laws.
Man is originally created good by nature BUT because of sin,

corruption, or some other internal weakness, mans original
and true nature became distorted and thus, there is now a need
for its control the rigors of a punitive system of law
Golden Age Primeval innocence when men lived simple,

happy and well-ordered lives without the need for any external
system of legal rules or coercion
roseate view of mans remote past = pattern for a movement
towards a return to nature
return to mans primitive, unspoiled nature
IS MAN GOOD? Fr. Ferrer proposes this table where we can plot the views of the different philosophers.
PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

_________________________ANGSIY BUENDIA BULLO CHATTO DE GUIA FONACIER GARCIA GUERRERO KHO LAUENGCO MARCELO MASIGLAT OAMINAL RETIRADO
RONQUILLO _________________________
Philosopher
Rousseau
West
Good or Bad?
GOOD
Ideology
Man is a moral savage.
Roseate view there is a pattern for movement towards the return to mans primitive, unspoiled nature.
Legists
China
East
of
Ancient
EVIL
Mans nature was initially evil. Men often acted in good ways due to the influence of social environment, particularly the teaching of
rituals and the restrains of penal laws.
A single law, enforced by severe penalties, is worth more for the maintenance of order than al the words of all the sages.
Shastras
India
East
of
Ancient
EVIL
Men are by nature are passionate and covetous and that if left to themselves the world would resemble a devils workshop, where the
logic of fish would reign big ones would eat the little ones
Bodin
West
EVIL
The original state of man was one of disorder, force and violence.
Hobbes
West
EVIL
The life of a primitive man as a state of perpetual welfare, where individual existence is brutish, nasty, and short
Hume
West
EVIL
Without law, government and coercion, human society could not exist and so in this sense, law is a natural necessity for man.
Machiavelli
West
EVIL
Men are naturally bad and will not observe their faith towards you, so you must, in the same way, not observe yours to them.
Ovid
West
GOOD
Seneca
West
GOOD
Poem in Metamorphoses
The Golden Age was first; when Man yet new,
No rule but uncorrupted reason knew;
And with a native bent, did God pursue.
Unforcd by punishment, unawd by fear,
His words were simple, and his soul sincere:
Needless was written Law, where none opprest;
The Law of Man was written in his breast;
No suppliant crowds before the Judge appeared:
No Court erected yet, nor cause was heard;;
But all was safe, for Conscience was their guard.
Prose: In this primitive state men lived together in peace and happiness having all things in common; there was no private property. We
may infer that there could have been no slavery, and there was no coercive government. Order there was of the best kind for men
followed nature without fail and the best and wisest men were their rulers. They directed and guided men for their good, and were gladly
obeyed as they commanded wisely and justly As time passed the primitive innocence disappeared; men became avaricious and

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dissatisfied with the common enjoyment of the good things of the world, and desired to hold them in their private possession. Avarice
rent the first happy society asunder the kingship of the wise gave place to tyranny, so that men had to create laws which should control
their rulers.
Primitive innocence is the result of ignorance than of virtue.
Social evils and the necessity for the introduction of a regime of law are attributed to the corruption of human nature from its initial state of
innocence, especially due to the vice of avarice.
Church Fathers and
Judaeo-Christian
Biblical account of paradise (Garden of Eden) is equated with Senecas primitive state of innocence.
The necessity for human law, such as the coercive state, private property and slavery, are derived from mans sinful nature, which resulted
from the Fall of man.
Law was a natural necessity after the Fall to mitigate the evil effects of sin.
Consequences of the fall of man Family represented the coercive domination of the male; slavery
Augustine
Christian Fathers
State law and coercion are NOT in themselves sinful but are part of the divine order as a means of restraining human vices due to
sin.
All established legal institutions and the state powers are legitimate and coercion can properly be used to enforce them.
Law is a natural necessity to curb mans sinful nature.
Future hope for mankind attainment of a commonwealth of Gods elect, a mystical society, which would replace existing regime
dominated by mans sinful nature
Aristotle
Man as a rational animal social animal who wants to live in society not as a hermit.
West
Man is therefore good compared to the animals and he wants to associate with other people to attain his potentials.
Aquinas
Christian Fathers
Followed Aristotles conception of the natural development of the state from mans social impulses.
The state is a not necessary evil but a natural foundation in the development of human welfare.
Law as a positive instrument not merely for restraining the evil impulses of man but also for setting him upon the path of social harmony
and welfare.

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Is Man Naturally Good? The Anarchists Viewpoint
Anarchists
Rejects
Approach to regard law as a natural necessity directed to restrain the evil instincts of man
View of law as a way of rationalizing and directing the social side of mans nature
A mood of wistful primitivism, a nostalgia for a primeval Golden age
Plato
Man is GOOD; The men of early times were better than we are and nearer to the gods
West
Society not to be one with an ideally conceived regime but one the is free from all legal rules in which rational harmony will prevail as a result of good
sense
Wrote Republic an idealist picture of a state WITHOUT law; had faith upon a system of education which will produce rulers who will serve (philosopher kings)
Wrote The Laws totalitarianism, inflexible and rigorously enforced legal system;; Concept of justice: everyone and everything is its proper place doing its proper
function
Adam Smith
Laissez-faire the less government, the better (leave everything to the forces of the market, things will fall into place as if they're governed by an invisible
hands)
Man is GOOD, let free market function
However, coercive law is needed for the protection of property.
Godwin Day
Modern
Anarchists
Man is GOOD.
Wrote Political Justice Evils of society arose not from mans corrupt of sinful nature but from the detrimental effects of oppressive human institutions; man is
inherently capable of unlimited progress.
Voluntary cooperation and education would abolish law No need for Arcos (superior)
Laws create psychological impact so people rebel
Law is not necessary moral norms and social norms only Man only needs customs
Bakunin and
Kropotkin Day
Modern
Anarchists
Man is GOOD
Expounded the views of Godwin State, law, coercion and private property are enemies of human happiness and welfare
Tolstoy
Day
Modern
Anarchists
Man is GOOD
Mutual aid would inevitably replace the coercive system
Anarchy based on simple Christian God-inspired life: why is there union of hearts and minds among the first Christians?
They believed he world is going to end soon. Might as well sell property and help others

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2 examples why his concept of the Christian God-inspired life wont work:
In a commune with common ownership and no violence, a boy stole a waistcoat from a another
When boy stole, there is now private property - An act is now considered wrongful
But what is the remedy of the commune if violence is not allowed?
A property of colony was bought by a member for the use of his fellow members. This person sold the property of the colony to an eccentric fellow
without the knowledge of his fellow members
Eccentric fellow declared that there it is his property
How can the members resist the eviction if violence is not allowed?
Maude: Remove the law and induce men to believe that no fixed code or seat of judgment should exist.
Marx
Modern
Day
Anarchists
Overthrow of capitalist society by a violent revolution of the oppressed proletariat law only safeguards capitalism
Looks forward (rather than backward to a golden age) /classless society unimpeded by environmental snares such as private property
From Capitalist state to Socialist state
Capital good cannot be owned. Only personal property allowed e.g. toothbrush
Innate Goodness and the Price of Civilization

Elliot Smith
Modern Day Anarchists
Man is GOOD
Book: Human History
"The Innate goodness and peacefulness of mankind"
The discord of our lives are the result of conflicts created by society itself (envy, malice, and all uncharitableness
usually have for the object of their expression some artificial aim, from the pursuit of which Primitive Man is exempt.)
Mary Shelleys Frankenstein: creates a monster, though possessed with human feelings, eventually turns upon and slays its
creator duality of human nature where many may possess innate tendencies towards goodness, but there is a dynamic side
to human nature which may be directed to either creative or destructive ends
Herbert Read
Human groups have always associated themselves into groups for mutual aid Society as balance and harmony of groups
He explains arkhos society without a ruler (not necessarily without law and without order)
Anarchist accepts the social contract but interprets the contract in a particular way
Only fundamental laws are needed. The rest may be decided by local customs.
Densely populated areas have inhuman regulations.

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Freud
The explanation of coercion as an element of human law lies at a deeper level Psychoanalysis (unconscious factor in man's
psychological make-up)
Social cooperation
Gregariousness - man is a political animal
But aggressive that must be repressed to be able to live with fellow men. Such aggressiveness need to be controlled by
law/coercion/force
Men are friendly creatures who simply defend themselves when provoked.
Self-defense is instinctual but aggressiveness is also instinctual
If aggressiveness is eliminated, we reach that Golden Age - but this cannot be realized realistically
Is Law Necessary? Our Own Life Story
When we were younger, we are considered as "angels. We do no wrong.
Everything we do is cute and funny. We "rule" our parents. Then when we
make one big mistake: growing up. Until we reach that "devil" state.
Therefore there is now a need to "regulate" us.
Minimum requirement In any society (primitive or complex), it is necessary to have
rules to make men and women live together:
Rules governing family relationships - parental authority, support
Conditions - economic - food gathering, hunting
Acts inimical to welfare of society
CHAPTER 2: LAW AND FORCE
Ancient Mesopotamia two gods specially revered

Anu sky god who issued decrees which commanded obedience
by the very fact of having emanated from supreme divinity
Symbol of authority
Enlil storm god; the power of compulsion, the god of coercions,
who punished disobedient gods or mortals
This reveals the human need for order and the belief that such order demands
the combination of two (2) essential elements authority and coercion
Authority and Moral

Obligation asdadasd
Some person is entitled to require the obedience of others regardless of whether
such others are prepared to find the order/rule imposed upon them as
acceptable/desirable or not
The lord, the policeman, the judge (superior party) all have a peculiar aura or
mystique which arouses a response from the other party (inferior party)
Response superior party can legitimately give orders which

inferior party must obey
This is called LEGITIMATE SUBORDINATION
MORAL OBLIGATION inferior party feels he is under a moral duty to
obey the commands of the superior party
There is a connexion between the idea of legitimate authority (which has to be

obeyed because of its very legitimacy) and moral obligation (which imposes a rule
which calls for voluntary adherence by virtue of its intrinsic rightness)
HOWEVER, lawful authority (as in the case of the lord, policeman, or judge)
and morality, while interconnected, are nonetheless separable and
distinguishable
Emphasis of this section the notion of legitimate authority
derives much of its strength from its link with moral obligation
Without authority (and decrees which determine order in the world),

there can be no organized society; and therefore authority makes
possible the functioning of the universe as a social whole
Without force to ensure obedience to the decrees, the universe
can never attain the role of statehood
PHILOSOPHY OF LAW: THE IDEA OF LAW (FR

FERRER, SJ)

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3 Forms of Authority
German sociologist Max Weber described authority or legitimate domination (as Weber called it) taking three (3) forms
Greek word charisma meaning grace
ascendancy an individual may acquire in a society, conferring upon said individual an indisputable aura of
Charismatic Personal
legitimacy over all his acts
Ex. Alexander the Great, Julius Caesar, Napoleon, Hitler, Mussolini, Stalin
A hypnotic effect exerted by such individuals not only over immediate followers but also on whole nations
Charisma attaches to the person alone but as Weber says, such authority derived in the first instance from the
personality of the leader may pass to his successors
Traditional
Institutionalizing the original charisma

Ex. descendants of the charismatic founder of the dynasty derive their legitimate authority from their descent,
even though they (descendants) lack all/most of the qualities of their charismatic ancestor
Ex. disciplines of founders of religions are able to retain and even enlarge the scope of the authority of the
founders who originally possessed the charismatic quality
Ex. established monrachy in a feudal order of society while rule remains personal (vested in the king), the
institutional character of the kingship creates traditional customs which are regarded as binding, thus
restricting the freedom of action of the king
A complex of personal and institutional elements
Misconception legal domination can only exist under institutional type of a uthority
o Even under purely charismatic type of authority, rules may be regarded as legal depending on will of
charismatic leader
o Traditional system of domination may have legal rules which might be customary rather than legislative
Emphasis of Weber under this system, legitimate domination has become impersonal and legalistic
Institutional character of authority has displaced the personal one
Modern democratic state has abandoned charismatic authority in favor of an institutionalized legislature,
bureaucracy, and judiciary which operate impersonally under a legal order to which is attached a monopoly of
Legal
Domination
the use of force

Legal domination dispensed with personal charisma BUT still rests on a belief in its legitimacy
-
Without such belief, the automatic and impersonal operation of legal authority would cease to function and would
be replaced by anarchy and disorder

Such belief is not really logical as it involves a circular argument
o laws are legitimate if they are enacted
o an enactment is legitimate if it conforms to rules which prescribe the procedures to be followed
Such circularity is intentional in order to allow for a belief in legitimacy divorced from any
particular ideals or value judgments
KEY TAKEAWAY RE: BELIEFS: human society rests on beliefs which may be rational or irrational but which need to
be understood clearly in their functioning
Webers three (3) forms ideal types representing the full development of possibilities inherent in certain kinds of social organizations

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Simplifications which provide an analytical structure within which sociological research may be conducted; analysis is typological
Ex. German Nazi state which combined features of personal charisma and features of modern bureaucracy which are
associated with legal domination
Legal theorists needs a conceptual apparatus which will provide him with a limiting scheme
Webers ideal types no more than a unified analytical construct [which] cannot be found empirically anywhere in reality. It is a Utopia [which]
has the significance of a purely limiting concept with which the real situation or action is compared.
Force
Societies where fully effective domination occurs but WITHOUT any belief, on the part of the subjects, in its legitimacy
Ex. Nazi occupation in many European countries during World War II Nazis possessed the power to enforce their will on the population even when the occupied
peoples entirely rejected the legitimacy of the domination of their Nazi oppressors
Rules enforced under the Nazi occupation were not laws but equivalent to rules imposed by gangsters or terrorist organizations such as the Mafia in Sicily
Does this imply that law can be explained in terms of force alone, in the last resort?
Thrasymachus arguing in Platos Republic that justice is simply the rule of the stronger
NO, the fact that in exceptional periods of war or revolution, a society can temporarily be dominated by sheer force or terror is NOT a reason for treating law as
nothing but force
Situations where force of law is linked with rules which are capable of being enforced by coercion the hangman, the gaoler (prison guard), the bailiff, the policema n
COERCIONISTS Put force at the forefront of the description of the legal process to the neglect of authority
Describe the legal process exclusively in terms of authority to the neglect of force
Argument against coercive character of law any force or violence is wrong in itself and that law which rests ultimately
on violence must therefore offend the principles of true MORALITY
Force is the very negation or breakdown of law
Recourse to violence lies outside the law itself
MORALISTS
ANTI-COERCIONISTS
Proponents of this viewpoint only law which they recognize is moral law and that moral law eschews all coercion and
appeals only to the conscience of humanity
- No system of rules may qualify as law unless it coincides with, or can be subsumed under, the rule of morality
This type of argument is directed to establishing a relationship between law and morality and therefore the question of the role
of force in a legal system becomes a subsidiary issue (this discussion is reserved for Chapter 3: Law and Morals)
People obey the law not because they are constrained to do so by force but because they consent or acquiesce in its operation
- It is this consent rather than any threat of force which causes the legal system to work
BUT such consent is a legal fiction and in the present day, such the fiction of a social contract has been abandoned
SOCIAL CONTRACT
- In democratic societies, it has been replaced by the idea that universal suffrage and majority rule is the means by which
an individual can manifest his adhesion to the operative system of government
Law exists in its own right regardless of whether force can or cannot be brought to bear upon offenders against its rules
Existence of legal coercion is relegated to a mere matter of incidental procedure, not in any way essential to the existence
of law
Force in International Law

In modern times, a system of rules has developed

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All civilized countries acknowledge to be binding upon them

Not enforceable by coercion since there are no regular international forces empowered to perform the role of the policeman and bailiff
Despite absence of any regular system of international coercion, rules are nevertheless treated as a system of international LAW
Coercion between nations can never be identical with the pattern which emerges in state law where coercion is applied to individuals
Nature of problem is different where whole nations have to be coerced into conformity
Use of force may entail destruction of life and property on a vast scale
National law can always resort to coercion to enforce decrees against individuals
In international law, process may be evolved gradually although evolution may be long and difficult and not always in one direction
As such, task of legal science is to accommodate re-formulations
Continually reassessing the forms of coercion and the role that coercive processes play in legal relations
THUS modern legal theory calls for a DYNAMIC rather than a static approach
Can We Dispense with Force?

Role of coercion in human law lies at a deeper level
Unconscious factors in mans psychological make-up pscyhoanalysis
Powerful aggressive drives which require to be effectively repressed in order to subject man to the needs of social discipline
Freud believed that these aggressive urges could be repressed and sublimated but NOT eliminated so that civilization would always involve a
struggle between the social impulses and basic drives towards aggression
Referring to the possibility of eliminating aggression altogether, Freud said, That would be the Golden Age, but it is questionable if
such a state of affairs can ever be realized. It seems more probable that every culture must be built up on coercion and instinctual
renunciation.
Freud: Men are NOT gentle, friendly creatures who simply defend themselves if they are attacked ;;a powerful measure of desire for
aggression has to be reckoned with as part of their instinctual endowment.
Bottom line of Freud necessary connexion between civilized society and coercive social order
Recent history has emphasized the existence and the power of those aggressive urges as well as the fundamental frustrations which beset our civilization that Freuds
diagnosis cannot be brushed aside
HOWEVER human nature may change and a new, more harmonious social order may eventually prove practicable
So that even if de Maistre were right and the structure of civil society had always been founded on the hangman, it is possible to reply that it need not be so, that
it would not always be so
Rules About Force
Primitive order rules regulating a blood-feud
International order provisions empowering some body such as the United Nations to rai se an international force ad hoc to try and control a situation which involves a
threat to peace(ex. Beirut, Middle East)
Highly developed state system regulated apparatus of courts, officials, policemen, bailiffs, etc.
As the use of force became more closely regulated, the use of force has been pushed further into the background
The bureaucratized state tends to resemble the order from which it theoretically differs the most (the charismatic personal rule) where the element of
authority overshadows the need for force
Leading to the view that force never was or at least has ceased to be an essential feature of law FATAL ILLUSION
One essential condition for reducing the application of violence is that there is an organized force of overwhelming strength in
comparison to that of any possible opponents
Developed legal system designated rules about the use of force may be properly broadened to cover all the procedural appara tus of the law
Rules which govern the use of violence in the state (ex. imprisonment, death penalty) represent the final stage of a long procedural process whereby proceedings
are instituted, regulated, and adjudicated upon

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Final stage hardly ever reached

Procedures not necessarily judicial or purely judicial
Ex. England when Home Secretary orders an illegal immigrant to be detained and deported
Command theory of law as expounded by John Austin

Though coercion may be an indispensable part of an effective system of law, there seems to be NO reason why penal consequences should be annexed to
every individual rule comprised in a legal system
x In Egypt, distinction was not readily apparent, because the pharaoh is viewed
as the incarnation of God on earth. Every decree had divine authority
x But for the most part society did NOT identify their rulers with the gods CHAPTER 3: LAW AND
MORALS o There was a clear cut distinction between the divine and the
human.
Law and Religion

Hebrew and Greek Influences
Modern times = secular concept of law made for man by man to be judged by man
Disobedience = divine punishment

Prophets reiterated imperative character of Gods law, and
obligatory character on the law upon the rulers and people.
o Recognized kings as lawfully anointed by God, therefore they
enjoyed divine sanctity, so they could impose laws upon the
people BUT in case of conflict, laws of a king do not prevail over
the will of a God
x Rejected human law as the embodiment of morality and equated law with
morality
x Only true law was that embodied in Gods will
o
o
Earlier ages = law had a celestial or divine origin. Law, morality, and religion were
interrelated (ex. Ten Commandments)
x
Lawmakers viewed as mythical, semi-divine, or heroic
Ancient Greek approach: passage from Platos Laws, Athenian asks a Cretan
who the credit should go to for instituting laws, man or god? Cretan replies
Why to a god, indubitable to a god.

Law is rooted in religion because of this notion of divine sanction
Why would people be impressed by the views of a modern jurist like Austin in that
breaking the law would provide for certain punishments performed by mere humans,
when the gods themselves would impose divine punishment on lawbreakers?
x NOT because the punishment of man was insufficient (dismemberment
and torture), BUT because even if a lawbreaker had escaped the
vigilance of man, the punishment of a god would be imposed in its own
way, and in its own time
o
Story of Orestes man avenged his murdered father by killing his
mother and her lover. Divine Furies appear and pursue Orestes for
murder but are stopped by the intervention of Athene
Shows the flexibility of the administration of divine justice
Polytheism means that many gods may intervene and
mitigate the administration of justice
Hebrews monotheists. One God dictated the moral pattern for all mankind
Law therefore meant simpy the moral or religious law which is laid
down by God or developed by divinely-inspired human beings
Opened for theocratic form of rule

NO distinction between law and morality
Conflicts resolved draconically by treating all valid
human laws as nothing but expressions of the moral
law
x PROBLEM: source of moral law
x Divine law was found in the Scriptures or declared by divinely -inspired
human beings
o
Distinctions were made organizing laws that were regarded as fundamental and
unchangeable (embodied the structure of society, relationship between members
and rulers, and the universe) and laws that were man-made in character (lacking
cosmic significance)

FERRER, SJ)
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Scripture full of doubts and obscure language which mean it
would have to be interpreted by people before it could be treated as

legislature infinite number of interpretations
Resulted in either
rigid orthodoxy (Geneva of Calvin)
virtual anarchy (individuals each interpreting the law
according to his own moral inspiration), latter being more
frequent
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Hebraic approach to moral law

personal inspiration
x
divine afflatus (divine creative impulse)

o
Credo quia absurdum - I believe because it is absurd.
Greeks
x Form of faith is rationalism counter-force to moral mysticism
o
Contained some mystical and irrational elements in Greek religion
and philosophy found in Orphic rites and Pythagoreanism but

nevertheless there developed a very powerful attachment to
rationalism
x Rationalism physical and moral order of the world were based on
rational principles and that man shared this rationalism with the universe
thus he was capable of understanding it
x Understood that human laws differed greatly. Many laws were not rational
nor justifiably rational
x Bottom line: Greek thought recognized human law possessing an
autonomous position in human society
o
Human law did not depend on divine origin for its validity
o
Although autonomous, human law could be subjected to moral
scrutiny
The Moral Duty to Obey the Law
x Hebrew and Greek conceptions of law both underline the need to face
possible conflict between the obligation imposed by manmade laws and
those required by moral laws
x Hebraic human law contradictory to divine law is lacking validity
o
Human law is obeyed only when it corresponds with divine law
x Greek Morally obligated for a man to obey the laws of the state even if he
believed it to be wrong or immoral. If the state is wrong, he may try to
persuade the state of its moral error BUT if he fails to do so, it is his duty
to obey.
o
Platos Crito Socrates explains why his condemnation may
have been unjust BUT he must still abide by the decision of the
state.
Obedience to the law of the State is itself a principle of
the highest morality
There is a moral law independent of State law by which a
particular decree of the State may be shown to be immoral
or unjust
This moral law does not override State law
o
Human law may conflict with moral law but the citizen must still
obey State law though he may and should labor to persuade the
State to change its law to conform with morality
x
The Relation of Law to Morals
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x Philosophy of Hegel individuals are treated as submerged in

the higher reality of the state whose superior wisdom could hardly
be expected to be open to the persuasion of an individual citizen
that it was in error or that its courts were unjust and immoral
o
After all, the State itself represents the embodiment of morality
x BUT there may be conflict between law and morality (Ex. Nazi laws)
x There may be common ground between law and morality and although
there is a moral duty to obey the law, if the law is CONTRARY to morality
then morality both requires and justifies disobedience
o
This is why law and morals are viewed as two different identities
o Both impose certain standards of conduct for human society to
o survive
They reinforce and supplement each other as part of the fabric of
social life
o Moral codes (what we OUGHT to do) generally refrain us from
committing acts which the supplementing force of law forbids
us from doing
Ex.
Our moral code prevents us from stealing from
someone else, but it is also reinforced by the law that if we
steal, we will have some form of sanction imposed by the
law
o There is an obvious parallelism between codes of morals and
laws. Both are concerned in laying down rules or norms for human
conduct, and both describe what our duties and obligations may be
o BUT remember, law does NOT necessarily connote moral
obligation, nor does moral obligation need to be translated into
law
Where Law and Morals Diverge
x The law may condemn and even punish sexual immorality but refrain from
attaching legal consequences (ex. Prostitution, keeping a mistress, etc.)
x There may be a moral duty to preserve life, but it may not give rise to an
equally important legal duty
o Ex. Parent has a legal duty to protect his infant child, but NO legal
duty to rescue another person who is drowning even if it would be
done without risk to the himself.
x
Law shrinks from pursuing what SHOULD be recognized as the
authentic path of morality the impulse to reform the law generally depends
o One reason is that
on a relatively small section of determined individuals who have the
moral force to produce a sufficient change in popular sentiment and
bring about changes in the law.
Ex. Development of the law protecting children and animals
against cruelty is primarily a result of this kind of pressure
from the determined individuals. This example shows how
new moral duties can be recognized and over time be
translated into legal duties
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o
Another reason is that the law prefers to abstain
from supporting the moral rule because they feel as though it
The Ladies Directory Case
would create more social evil than it would prevent
x
This case is about the publisher of a booklet containing
Ex. Refusal to penalize private drunkenness or
information like the addresses, telephone numbers of various prostitutes
fornication. Some states where adultery is a criminal
and was held guilty of conspiring to corrupt public morals
offence, the law is regarded as a dead letter
x
The main point of the case with regard to Law and Morals is that the
Ex. Homosexual relations between consenting male adults ascertaining of the requirement of public morals is in entrusted to the in private is difficult
to enforce legally because it may do particular jury charged to the case. Also in accordance with English
more harm than good. Might encourage other evils such as
procedure, the Judge will expound on the law and convey his own insight on
blackmail.
the matter
x This portion of the chapter talks about how the system for developing
x According to a libertarian proposition traceable to John Stuart Mill the
law should NOT intervene in matters of private moral conduct more than
criminal law is far from ideal because the judicial decisions they make
necessary to preserve public order and to protect citizens against what
are based on the weak findings of juries as to what public morality
is injurious and offensive.
dictates
o
In other words the
sphere of morality is best left to the
Crime and Punishment
o individual conscience strongly criticized because the critics feel that
This proposition was
x This portion of the chapter talks about the conflict in determining whether or
the effectiveness of criminal law is dependent on the moral standards
not moral judgements should be eliminated from criminal law because the
of the community and that this proposition would weaken the moral
purpose is to protect society and reform the prisoner instead of determining
authority of the law and the society it exists to uphold
the guilt of the prisoner and the degree of his moral responsibility for the crime
An Example from Divorce Law
x Guilt in criminal law is linked to the idea of moral responsibility; morals
reinforce the authority of the law and the duty to render obedience
x Prior to 1969 in order to get a divorce you had to provide for some matrimonial
x Responsibility in law is treated as excluding the possibility of guilt if
offence: adultery, cruelty, or desertion
certain circumstances exist which render the offender not morally
x Divorce act of 1969 abolished the old ground of divorce, and provided that the
implicated in his offence
sole ground now is the irretrievable breakdown of the marriage.
o
Ex. Such insanity that he no longer realized what he was doing. Or
o
Evidence with proof akin to adultery, cruelty, or desertion
he was coerced into the act by an external force.
o
Difficult for the courts to develop appropriate tests to be applied in
o
May relieve the accused of legal responsibility
such cases because it is the court, not the aggrieved party, who
o
Exception to this rule: instances where the accused is ABSOLUTELY
decides whether the petitioner can be reasonably expected to live
LIABLE in whatever state of mind they may have been in.
with the respondent
generally only applies to minor offences
x Another way morals impinge (impact negatively) on legal responsibility is in
o
Ex. Husband was given divorce decree on the basis of his wifes
association with another man falling short of adultery
deciding upon the punishment to be inflicted
o
Ex. Divorce decree was NOT given to a man on the basis that his
o
Law needs to be buttressed (to provide support or reinforced) by
wife did not give him the affection he craved for
the moral convictions of the community
o
Ex. Divorce was NOT given to the woman on the basis that her
x Compromise retaining concept of guilt and responsibility in relation to
husbands illness made him moody and caused him to bother her in
the actual commission BUT eliminating it from the consideration of
the evenings
punishment
x Initially, the court wanted to leave these decisions to the good sense of a
o
This way courts would not have determine the impossible task of
jury but felt that if they did, they would have different solutions for
considering the degree of moral responsibility a particular convicted
similar cases
person has, but instead they will consider psychiatric evidence and
o
One of the aims of the legal process is to try and achieve a
how much he is likely to receive benefit (reform) from the punishment
o
This is not to say that if they will not receive any benefit from the
general uniformity in cases of a similar kind
o
They achieve this uniformity by applying various criteria to actual
punishment they will be automatically released. Court also has to
cases and thereby developing their rational principles which can be
take into the account the protection of the public
applied to other similar cases
o
If dangerous = detained. When no longer considered a danger,
x Only with the change in the law itself that popular opinion is gradually rethen they may be released
molded into a more enlightened viewpoint
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o This new way of sentencing inquires into the

facts of a particular crime, social, mental, and other aspects of
the background of the accused person without any need to
introduce the notion of responsibility at all.
OR
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OF
THE
HATERNAL
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OF
CPO
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Barbara Wootton declares that the concept of responsibility
could be allowed to gradually wither away

Lastly, it was admitted that this new approach rests on a number
of unproven assumptions such as the capacity of modern
psychiatry to rehabilitate the criminals
Reason why this system is NOT in place is because of the risks
of implementing this system is greater than the imperfections
of the existing system
HAP
4:
N
AT
U
Conflicts between Positive Law and the Moral Law
st
x
1 main attitude
RA
o
Law and Morals must coincide because moral law dictates the
L
content of human law (Ex. Hebrews and Calvinists)
1)
st
1 Alternative: ONLY moral law is valid, anything that does

NOT conform to the moral law itself cannot be regarded as
a binding law
nd
2) 2
Alternative: Thomas Hobbes argued morality means
nothing more than obeying the law
Hegel believed in the moral superiority of the state.
Individuals had no higher right than to obey the laws of the
state
nd
x 2 main attitude
o
Man-made law and moral law each have their own realm BUT
moral law is a higher law
o
Conflict between man-made and moral law? Moral law wins.
o
Involves this notion of natural law, or the natural rights of man
which played a large role in the American and French Revolution
rd
x
3 main attitude
o
Each sphere of law is exclusive from one another
o
Referred to as legal positivism
o
Validity of legal rule must depend solely on legal criteria. In the
same way that moral validity is ascertained by applying criteria as
are necessary or appropriate in relation to a system of morality
o
Pragmatic view of law. Based on the principle of utility,
expediency, tradition, or social custom
o
Conflict between the two spheres cannot impugn the legal validity
of manmade law or alter the duty of legal obedience although it
gives rise to the moral problem as to whether or not the law must
be changed
o
Conflict between legal and moral duty may have to be resolved
in accordance with the dictates of the conscience of the
individual and his moral courage to the defy a law which he
believes to be contrary to what is morally right or just.
A
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S
T
h
Earl
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soc
en the natural world of the animate/inanimate and the world of human

beings and human affairs
x Nature contrasted with the Supernatural and was always inferior and
subject to the latters constant control
o Nature how people and things are expected to behave
o Supernatural deemed to have the powers to intervene at any
stage of nature
Looked to for the explanation of the course of events both
human and divine
x Few people attained to an approach to nature differing essentially from that
described above in general terms
o Chinese advanced in civilization but did NOT arrive at notion of
fixed physical laws of nature governing the universe
Harmony as the governing principle instead of a divine
lawgiver
No pre-ordained laws but justice and harmony could be
attained by following the appropriate rituals and customs
o Judaeo-Christian Religions focus on monotheism eliminates
the capriciousness of Divine Intervention
Encouraged the belief in a natural order of things
divine and human
God divine lawgiver who has laid down fixed order of the
physical universe and provided laws to govern human
affairs
The Early Greek Philosophers
x
Pre-Socratic philosophers main objective was to explore the world of

nature to find principles governing the universe, explaining its function and
structure
o
Believed in the power of human reason and did not just rely upon
inspiration or intuition to guide their thought Rise of Rationalism
Consequences
Possible determination of rational principles to govern
human conduct as an individual
Mans conduct in society nature identified with truth
and rightness
x No real rules governing human conduct which are
natural to man since these differ from community
to community
Laws are therefore a matter of conventional arrangement
P HILOSOPHY OF L AW : T HE I DEA OF L AW (F R F ERRER , SJ)

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THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER

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Nature in man NO more than instinct
and so much of human law is directed towards the curbing

of mans instinct
Plato and Aristotle

Plato
x It was possible for the Wise Man suitably educated in philosophy to attain
a vision of perfect realm which may lay beyond the world of senses
x
Idealistic approach regarded the idea as the kind of absolute thing in itself
enjoying the higher degree of truth and reality than the mere physical
appearance of the world
o
Republic - expounded on the idea of justice so far as it can be
grasped
Justice as absolute and can only be apprehended by the
philosopher and be fully realized by the rule of philosopher
kings
Totalitarian concept of law and government of the most
rigid and inflexible kind (like most Utopians)

Aristotle
x
Attempted to develop the realms of knowledge in a scientific spirit

through the use of observation and experience
o
o
Naturalist arrived at a dynamic view of nature as the capacity

for development inherent in things
Justice in human affairs might be
Conventional varying from state to state according to
history and particular needs
Natural common to all people based on the fundamental
purpose of man as a political being
Among human beings, everything is subject to change

even natural justice but among gods, nothing changes
FACTUAL
NATURE
A study of man as he really is
IDEAL
Expressing the fundamental aspiration
of man in his full potential
An ideal standard against which the
non-natural or purely conventional may
be measured
LAW
Primarily starts from mans behavior
To be elicited by reasoning, revelation,
intuition, or some process
The Stoic Philosophy

x
Stressed the universality of human nature and the brotherhood of man

o
Emphasized reason as the essential feature of humanity
o
Doctrine of laws
Polis laws of a mans city (isolated)
Cosmopolis law of a universal city
x Purely rational law and, as such, entitled to claim
moral superiority over local and conventional rules
governing particular states
ARCELO ASIGLAT AMINAL

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Christianity and Natural Law
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A universal law
of nature was
ascertainable by reason which
provided a touchstone for determining
the justice of man made laws
x Judaic view of law was that it represents Gods will on earth and is thus
supremely good
x
For Christians, earthly laws were mere evils arising out of mans
sinfulness, which derived from the Fall of Man
x
Augustine wrote The City of God which equated the Platonic realm of
ideal justice with the conception of the City of God on earth when
Christian justice will at last reign
x Human institutions as law, property, and slavery are imperfect on account of
sin but still form part of the necessary order of things
x Natural
law is equal to Divine law in that they are partly miraculously
revealed and partly ascertainable by reason
x Link between natural law and Christian theology increased its authority
natural law now imposed by God and was expounded by the Pope
o Idea gaining currency human law is subordinate to natural
law and cannot stand if it conflicts with the latter
Aquinas and Scholasticism
x
Important element of Catholic philosophy - rediscovery of Aquinas writings
during the Middle Ages
x Scholasticism attempt to assimilate Aristotles writings into the fabric
of Christian theology
o Influenced by Aristotlean view of man as achieving his natural
development in a political society
o Rejected the notion that law and government are rooted in sin
and are therefore imperfect
o Distinction had to be made between divine law and natural law
x
Scholastic Philosophy
o
highly rational as it relied heavily on truth as elicited by logic and
deductive reasoning
x Some parts of natural law were destructible and could be replaced to
meet the needs of changing conditions and developed the implications of
x
Human law filled the gaps of natural law
natural law in relation to human relations
Renaissance and Secular Natural Law
x
A new scientific approach which ignored the claims of theology and
concentrated on observation and experiment aided by human reason
th
x
Golden Age of the law of nature, endured til end of 18 c.
o Emphasis on rational character of natural law
x Grotius
14

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o Believed that natural law would still apply even if
God didnt exist because of the unique quality of mans reason
and the rational element shared by men
o
Reason dictated a natural order in human affairs elicited by
reason alone which should operate everywhere
o
Sovereign states are governed by natural law in the international
arena
x Edward Coke held the view that common law could even treat a statute as
void if it is contrary to reason
x Development of law as a rational scientific body of rules designed to
achieve justice in the prevailing social and economic conditions
Thomism
Natural Law and Natural Rights
government to enter a Social Contract wherein the ruler protects the rights
Natural law looked to as the source of fundamental democratic

rights restricting the freedom of rulers
o
American Revolution strongly influenced by Lockes philosophy
U.S. Constitution natural-law document
th
Natural rights became positive law through the 14
Amendment
x Natural rights given special authority in courts
and legislation wherein infringement of rights is
punishable
x
Natural rights are enforced as legal rights
x Rousseau man is born with natural rights which he surrenders to the
general will
o
General will the whole is not the sum of individual right
o Whether the ruler violates the rights or not, he can be removed from
power because people are the sovereign
o
French Revolution overthrow the ancien regime and impose
the natural law of reason in its place
o
Weakness any person (demagogue) can seize power to claim
that he represented the general will and so impose his authority
o
(Neo-Kantian
legal
philosophers) strive
to
deduce rules implicit in
Kants universal law
Stamlmer: rules cannot be
sciences in the US led to

greater development
of
sociological approach
in
the
US
more
than
anywhere else
Post- War Revival of Natural Law

x Nuremberg Trials, Eichmann Trial, Nazism caused the development of
Customary International Law which is founded on natural law
x
x
th
19 c. natural law is substituted by the belief in human progress and

a firm conviction that the established blessings of civilization were being
consolidated and gradually spread universally among mankind
Rise of Irrationalism
o Nietzsche - doubted the whole fabric of traditional morality and
wishes to transform morals into a cult of superman
o Tolstoyism - repudiate all laws of government and favor
primitive Chrisitianity
Relevance of Natural Law to the Modern World

x Incorporation of the Bill of Rights in the U.S. Constitution this owed
much to natural law in its inception
x Duty of the Judge to interpret the actual Constitution and not the higher
constitution from which it is derived
x Claims for natural law
o What is reasonable, fair and just
o When something is done in good
faith x Usefulness of natural law
o National Level law is obliged to give solution to human life
via prohibition or permission with or without conditions
Whether the law should impose capital punishment (a
moral controversy)
o International Level still at a primitive stage of developing an
all-encompassing law
o Resolve conflicts between the law and morality
Modern Approaches to Natural Law

th
x 19 c. lowest point of the natural-law school
o
Legal positivism and Hegelianism took its place
th
o
Reaction against excesses of rationalism in 18 c. philosophy of
the Enlightenment + feeling that natural law was devoid of any
scientific/natural basis + feeling that natural law ignored vital
role of historical processes in the development of law
Catholic
Apply scientific methods

from
emergent
social
sciences to elicit primary
data of mans fundamental
drives, urges, or needs
Strong emphasis on social
immutable in all times and

conditions approach
is
natural law with a variable
content
2 views on Natural Rights

x Locke man is born with natural rights which he gave up to the
THEORIES OF NATURAL LAW

IDEALIST
Philosophical
Neo-Kantism
(cateogircal
imperative e we should
act so that our norm of
conduct might be translated
into a universal law)
Stammler and del Vecchio
FACTUAL
Sociological

FERRER, SJ)
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nonsense
upon
R stilts
__________________
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ASIGLAT AMINAL ETIRADO

ONQUILLO
He was a rationalist and claimed that natural

rights were
Aimed at maximizing human happiness

x Principle of utility was a metaphysical principle whose truth could not be
CHAPTER 5: LEGAL
POSITIVISM
Physical and Normative Laws
x Positivist approach emphasis on
humanism
o
the secular studies of science and
th
the early 19 century
Empiricism associated with observation as a means of ascertaining
laws of science
th
x Until the 18 c., NO clear line was drawn between physical laws (which
dealt with propositions about the world and which could be refuted by
empirical evidence showing their non-applicability) and normative rules
(which laid down standards of human conduct)
Is and Ought
x Hume pointed out that there are really two realms of human inquiry
1. In the field of facts
2. In the field of ought
o
Normative = refer to standards of conduct (ought)
x Fact vs. Moral obligation
o
Although distinctions exist between human law and morals, human
law shares with morals the characteristic feature of
being
normative (since human law lays down rules of conduct rather than
stating facts)
o Difference:
law required a certain measure of regularity of
observance while moral obligation may still be valid even if not
observed (ex. rule that we should love our neighbors as ourselves)
x The question remains: whether any rational standard could be found which
could provide the means of judging between right and wrong
x Kant attempted to provide Hume an answer by asserting that ought
contained the absolute rule of morality which he called the categorical
imperative
The Principle of Utility (Bentham)
x The behaviour of mankind was dominated by the influence of pain and
pleasure
x Utility = no more than what served to increase human happiness
x Numerical standards were adopted, each mans happiness being
considered equal in value of that of any other man
o Test of utility: what served the happiness of the largest possible
o
demonstrated because what is used to prove everything else cannot itself be

proved
x Served as a solid juridical foundation for much of that reform of law during
number
Based on Benthams principle the greatest happiness of the greatest
number
Provided the appropriate climate for the move towards legal positivism
The Move to Legal Positivism

1.
LAW AS IT IS AND AS IT OUGHT TO BE

Bentham law could only be properly understood if it were treated as an
autonomous field of study free from al issues of morals, religion, and the like
x
The moral worth or expediency of the legal rule is irrelevant because it
nonetheless remains legal
o Expository jurisprudence what the law is
o Censorial jurisprudence what the law ought to be
x
Did not pay much attention to the issue as to whether when a law stood
morally condemned, the citizen was entitled to disobey it
x
Benthams approach:
The legal duty does not cease to be a legal duty
because the citizen is persuaded of the moral inquiry of the duty. It is up to
ones own conscience whether he would choose to comply/obey or not. law
o
Such view would certainly be accepted by the English court of
because courts exist to uphold the law and are not to be
concerned with the goodness or badness of that law
x
Positivists attack the natural-law idea not merely because it makes for
muddled thought but also because it creates a barrier against law reform
x
Bentham believed that a theory identifying law and morals in a close manner
would lead to either of these two severe barriers to the rational advance of
mankind in the interests of progress
o
A reactionary claim by those it benefited that the law was the acme
of reason and perfection; or
o
Its total rejection by the oppressed on the ground that it offended
x
the first principles of natural justice
The ultimate goal of reform could only be attained by a cool-hearted
evaluation of existing law in two ways:
o
by the standard of utility
o
by unflinching pressure by rational persuasion for its amendment
Such an argument stems from the belief of the Age of
Enlightenment in the ultimate force of human reason
and could appear to be devoid of reality
x
The legal positivist would always argue that there is no advantage in
confusing the legal and the moral issue.
Conflict arises in the very
separation of legal and moral duty
o
Ex. Those in South Africa who are persuaded that the repressive
racial laws of apartheid are fundamentally immoral
x
16

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A believer of natural-law will urge that these
laws lack legal validity because they are contrary to the
dictates of a higher law binding on all mankind
The legal positivist will accept their juridical validity but
condemn them on moral grounds according to
whatever criterion of morality he accepts
x Moral dilemma: It is law but I wont obey it because I believe it to be
wrong vs. It isnt law at all in any fundamental sense, and therefore I am
not bound to obey it
The Judge and His Conscience
If a naturalist judge would perform his true legal duty, he would refuse to
apply unjust laws as they are invalid
o
Ex. Anti-Nazi judge in Hitlers Germany, anti-apartheid judge in South
Africa
o
Both theoretically and in practice, such situation would seem to be
impossible because he would have to:
declare himself ex cathedra as an authoritative exponent of
natural law
decide that its decrees compel him to ignore his own
municipal laws
x Natural law is a matter of keen controversy even on a theoretical basis
o
In any case, the judge is still obliged to apply municipal law and
NOT to apply his own personal speculations as to systems of
higher law
x If the legal positivist were to perform his legal duty, he would submit that the
laws of the state are clear and it should be applied according to its letter and
spirit
o
What action he should take would be a matter of his own
conscience, but he would presumably resign his judicial office
Law as a Science
th
x 19 c. science took the spotlight because of theoretical knowledge and
technology
o
Feeling that every field of study must organize itself on scientific
footing it was to contribute to general march of progress
x Darwins demonstration of how evolution could have accounted for both the
present state of the animal world and of mans own development by
emphasizing mans continuity of evolution from the animal world seemed
to point the way to treating the affairs of mankind as open to scientific
investigation just like the case of other phenomena of nature
x Positivism
o
Devised by the French philosopher Comte to designate his own
particular philosophic system
o
Derived from a belief that adequate knowledge could be attained
only by employing the scientific method of investigating reality
by observation and subjecting its theories to

empirical investigation
o Comte argued that
there were 3 steps in the
development of mans approach to the world
The religious
The metaphysical
The positivist
o
Comte turned to the study of man in society and strove to create a
new science of sociology by which the whole of mans social
activities might be viewed in the light of scientific principles
The scientific spirit is so pervasive that it was to be found be infiltrating
arts and literature
o
The school of naturalism and social realism = an attempt to create a
new type of fiction based on scientific investigation and written
by scientific methods
o
John Constable in 1896: Painting is a science, and should be
pursued as an inquiry into the laws of nature
Courbets realist painting has been said to reflect Comtes

new science of sociology
In an age when science and scientific method were acquiring such
unique prestige, and the serious development of such sciences as sociology,
social anthropology, and psychology, jurists should be persuaded that legal
theory also both could and should be capable of development on
scientific lines
Bentham gave serious thought to the general pattern and structure of law as
reflected in unpublished manuscripts, which were later published as Of Laws
in General
o
Reveals an insight and sophistication far beyond that of his discipline,
John Austin
, whose work is usually treated as a main source of
what he called the science of positive law
The
science of positive law emphasized on the
distinction between positive law, or law as it actually is
(during that period), and law as it ought to be
Only law as it actually is is the appropriate subject matter
of this science
x Law as it ought to be constitutes a distinct field of
its own to be investigated not by the jurist but by
the theologian
Austins Science of Positive Law

x Austin was mainly impressed by the fact that law as a self-contained body
of rules applicable to human society operated by means of a system of
conceptual thought
x His aim seems to have been to examine the essential features of this
conceptual system
o

FERRER, SJ)
Involved not only endeavouring to determine the actual structure of

law and of the functioning of a legal system, but also giving a
17
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scientific exposition of all the fundamental notions w/c provide the

framework of such system
Such framework is comprised of key
concepts such as
rights and duties, persons, property,
ownership possession, crime, civil wrong, contract, and so
,
on
x Developed very largely on the lines of an analysis of fundamental legal
concepts
x It involved selecting ones data for research on the basis of actual fact
acquired by observation
o
Such data would have to be collected from actual legal systems,
past or present
x He was persuaded that there was sufficient in common in the conceptual
framework of all legal systems to justify a general jurisprudence by w/c
conclusions of general validity might be attained, but limited his inquiry to
x what he termed the more developed legal system
Legal positivism thus tended to be associated with A CONCEPTUAL
APPROACH to jurisprudence which has brought it to bad light in recent
times
The Conceptual Approach
st
1 criticism: A legal theory confined to analysing fundamental concepts tends to

induce a frame of mind where
legal concepts are regarded as possessing a
certain inherent structure and that any developments of law which disregard this
structure are illegitimate barrier to certain forms of legal reform!
x May impose an undue restriction on the legal process in adapting the law to
new and changing social and economic conditions
nd
Criticism:
Legal problems can be solved by means of logical analysis,

disregarding the role that policy plays in arriving at legal decisions that the answers
x The conceptual approach to legal theory leads to the notion
to legal problems can be arrived at by working out the logical implications of
legal principles, for instance:
The courts merely have the task of working out and applying on
rational lines the given principles of the law. Hence, the judiciary can
regard itself as isolated from all questions of policy, its duty being
merely to apply mechanically the principles supplied to it by the law
x There is doubt whether Austin would subscribe to these criticisms but still,
the
conceptual approach associated with positivism has certainly laid itself open
to the accusations that it tends to an excessively logical approach and tends
to underestimate or unduly diminish the law-creating functions of the
courts
rd
Criticism: To be heard among modern jurists can probably be directed with more
justice even against Austin himself. He seemed to overlook that the

level of
investigation on which he contemplated that his science of positive law would
operate was really only that of second-order facts
x
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Namely the rules of law as contained in the statutes, recorded

cases, and law books associated with given legal systems
Behind such second-order facts lies an enormous mass of firstorder or primary facts consisting of the actual behaviour of legal officials,
judges, and others in relation to these complex legal rules
During Austins time, neglect of second-order facts is

understandable, but at
present, the need for a more sociologically-oriented science of
jurisprudence has been increasingly felt
x The sociological jurist also assails the positivist axiom that law as it is and law
as it ought to be are two distinct and watertight compartments because the
law is not static but a dynamic and developing body of doctrine
and
many of its developments are produced by judges who are either consciously
or subconsciously reaching decisions on the basis of what they think law
ought to be
x
Scientific jurist cannot ignore the fact that its own development of some value
system acceptable to the community is built into the law and the way in which
the value system directs or controls the changing complex of legal decision
forms a vital constituent of a legal system
x
However, this does not in any way vitiate the main proposition of the legal
positivist that the validity of an established rule is not impugned by its conflict
with some value system established by religion or morality or any other nonlegal source
Where Positivism Stands Today
x Positivist legal theory is usually associated with a belief in the possibility of
finding an absolute standard or norm outside the legal system itself by
which the validity of a rule may be tested and, if necessary, found wanting
x
A positivist may still insist that the validity of law is distinct from the question
of its moral rightness even while adhering to some system of absolute moral
values.
Attacks on Legal Positivism
1. Legal positivism, by its refusal to acknowledge an absolute higher morality
, has
controlling legal
made it possible for totalitarian dictators to
bend the laws and those who administer them so as to perpetrate, under the guise
of legal authority, dreadful injustices such as what have been carried out in recent
European history
x
The legal positive does not assert that the law is not subject to moral
condemnation if it deserves to be condemned
x
The positivist denies that value systems can be proven true
x The notion that legal positivism has led to dictatorship in modern times is
palpably false because it is in the Anglo-Saxon world of the common law
that this legal doctrine has held and still holds widest sway and
democratic value systems have attained as high a standard of legal
recognition and enforcement there as anywhere in the world.
validity
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2. Attempts have been made to show that absolute moral values do

and can be demonstrated to exist by various means human reason
x Appeal is made to revelation/intuition/a belief in
common to all mankind by which it is possible to arrive an unassailable
moral truth
o
Still not possible to claim absolute value system
x The positivist does not deny that rational arguments may be applied to the
moral evaluation of law as to other subjects and is often in favor of law
reform and moral progress HOWEVER, he recognizes differences in
ideologies and beliefs
x The positivist shares with the natural lawyer a rationalist approach to the
moral values of his society
x The positivist while retaining his faith in systems which can be subjected to
rational scrutiny, prefers to concentrate on studying the values that are
inherent in our present stage of civilization and on exploring how these
may best be realized in the conditions of today
x The positivist believes that a clearer understanding of human social
problems can be attained by keeping the questions of legal validity and of
moral worth distinct
CHAPTER 6: LAW AND JUSTICE

x
Law related to the system of values recognized in the particular

community in which it operates
o
Absolute superiority of any particular system over others is when a
community believes that its values are the highest attainable, it

will judge the existing law in accordance with those values and
try to amend it or adapt it
However, a more general purpose that law everywhere aims for
JUSTICE
o Are not those values themselves merely an individual expression of
the general striving towards justice itself?
What is Justice?
x Is a moral value
o
One of the aims or purposes which a man sets for himself in
order to attain the good life
Good
x
As a means (ex. liberty as a means of attaining
happiness)
x
As an end (ex. happiness as the ultimate end)
Classification of various goods or values of society in a
hierarchy so that some of these are merely means to
attain higher values, all leading to some ultimate good
What the ultimate good is not a matter of demonstration,
it is a matter of choice
ASIGLA
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including
Plato,
and
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Some lawyers and philosophers,

approach to ethics and law, have
placed justice as the ultimate good
Platonic Justice
x The Republic
o The microcosm of the just man is a reflection of the pattern of the
just society which is an ideal society
o Everything or person has its proper sphere and justice means
conforming to the sphere
o Only the wise man is fit to rule in a just society, therefore he
alone will act as ruler
Potential rulers are to be selected by attainments +
education before being qualified to rule
o Based on the Aristocratic idea that every person is inherently
adapted to some specific function
If he departs from such function, he is guilty of injustice
Resembles the feudal idea of the three orders of society
(priests, warriors, and labourers, each with their own selfcontained function which was not to be overstepped)
o Platos system seems based on the fallacy that each man is by
nature fitted for one specific job or function and that there is
such a job or function adapted to each persons natural attainments
or aptitudes
Formal Justice and Equality
x Conception of justice through the ages
o Greeks embodied by inequality because of the very lack of
natural equality between human beings called for different
treatment
o Modern equality is the very essence of justice, it is attaining
equality and not preserving inequality as the vital function of
justice
x Link of equality of treatment and the justice
o Because of the association of justice with legal proceedings
Law is applied equally in ALL situations and to ALL
persons to which it relates
x Justice as a formal principle of equality
o Does not mean that we treat every alike regardless of individual
differences
o It means that everyone who are classified as belonging to the same
category is to be treated the same way (like treated as like)
Requires equality of treatment in accordance with the

classifications laid down by the rules BUT tells us nothing
about how people should or should not be classified or treated
Justice is an empty category (resembling Kants
categorical imperative)

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o
general rules shall be
Legal Justice
x
Justice is a much wide conception than law and may apply wherever there
is a code of rules, legal or non-legal justice has been largely derived from or
x
The very conception of formal
modelled upon the conception of law itself
x Features of formal justice
1) Existence of Rules it contains rules for regulating human behaviour
and settling disputes
2) Generality general in character because the whole purpose of law is
to classify acts and situations, and to provide general rules for
dealing with them
3) Impartial Application impartiality is generally closely associated with
law in the sense that it is regarded as a highly desirable attribute or
aim of any legal system but practice is often very different
x Situations where impartiality takes into play
o When a state or country is governed in theory by rules
which capriciously applied , it is impossible to predict
even the most straightforward cases how individual decision
will go, because of the likelihood of corruption or personal
factors which can influence decision it
could hardly be
said that a legal system really exists
o A legal system where the law is generally applied with
regularity BUT where
certain sections, classes or
individuals can usually rely on the favorable treatment
both from the courts and other legal authorities, this
legal system is defective in certain cases
framework of rules BUT deliberate value-judgment that

certain differences between human beings are not
appropriate grounds for discrimination (sex, race, color,
religion)
Adherence to such value-judgment one of conscious
strict letter and to limit or control their operation in cases of

hardship
In short, justice should be administered with mercy
The system of equity tended to grow increasingly rigid and more
like a supplementary system of law than a means of tempering the
strict dictates of justice according to law
On the other hand, there has also been a considerable growth of
discretionary powers conferred on courts, tribunals and
equitable principle built into the rule of law itself
Not merely logical principle of treating like as like within a
To correct the rigour of law,

to confer
the spirit of equity rather than insisting on their
administrators by modern legislation, these constitute a kind of
Concrete Justice how to decide whether the actual rules are just
o In Ethics by Aristotle, he calls it Distributive Justice which deals
with the distribution of honors and awards by the state to persons
o according to their deserts.
Same idea expressed by Roman Emperor Justinian, who said that
justice consists in giving to each man his due
But what is due?
There is
a need to establish a scale of values which
guide someone in
discriminating between the various
competing claims
The values we affirm are a matter not of logical necessity
but of choice
not imply that our choice is
x
This does
absolutely free because it is deeply conditioned
by our history, traditions and, social and economic
environment
o
Equality taking an important place in the scale of values
x Equity
discretionaryORpower toRinterpret the_________________________lawsin
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o
People are in fact not born equally (physically,
mentally or in other respects)
A cynical English judge of the Victorian era
said The law, like the Ritz Hotel, is open to rich and poor
alike
x Attributes of justice in a formal sense
o There shall be rules laying down how people are to be treated in
o given cases
Such rules shall be general in character; they shall provide that
everyone who qualifies as falling within the scope of the rule shall be
governed by it
, the agencies
o
impartially applied
concerned in administering them shall apply them without
discrimination, or fear or favour, to all those whose cases fall within
the scope of the rules
Substantial Justice
These
choice and moral conviction which cannot be deduced

from formal criterion of equality incorporated in idea of
justice
For Aristotle, the general nature of rules means that

not every
individual situation can be foreseen or provided for adequately ,
there formal justice may press very hard in individual cases
This is why legal system need:
Reference to the equitable element is a means of mitigating the

o According to Aristotle, equity
apparent rigours of the law
o In Roman Law, the spirit of equity invoked to enable the
law to be developed in a juster and more humane
manner than was permissible within its strict letter
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o
o In English Law, a separate system of

equity developed in order to turn aside some of the
harshness of a strict la
The close correspondence between formal
justice and law felt the need for softening their
respective rigours to meet individual cases of
hardship
Law and Substantial Justice

x It is NOT enough that a system of law to comply with the formal
attributes of justice even though tempered with a spirit of equity
x Law needs to possess a just content, and this means that its actual rules
must, by their provisions, aim at and endeavour to conform to some
criteria of rightness which depend on values exterior to justice
o Therefore, assertion that law aims at justice CANNOT provide a
substitute for a scale of values
Legal Injustice
x Three (3) types of Injustice in relation to law
1) When the law is closely linked in the general opinion with the idea of
justice that it may be treated as synonymous with justice
x Court of Justice can be a synonym of Courts of Law because of this
x Legal Injustice is done when a case is decided contrary to what the law
itself says
o However, in practice, the complexities of most legal systems are
such that they are full of uncertainties as to what the correct
interpretation is in many situations
2)
x
x Two (2) principal ways to attain not merely formal but also substantial justice:
1) Imparting a certain flexibility in the rules applied by the courts or other
organs of legal administration so as to confer on the judges and other
legal officials the possibility of developing the law and adapting it to
the needs of the society in which it operates
x
More limited but in some ways more pervasive in the long run
Ex. decision of the higher court may not in the eyes of the
legal profession seem to be soundly based as a matter of law;
even the highest court may subsequently be entitled to
overrule its previous decisions as being wrong in law

When the law is not duly administered in that spirit of impartiality which it
requires
Allowing the flexibility in the rules does not mean to provide a set of values for
the law to apply but gives the judiciary scope, within established rules, to have
regard to the dominant values accepted in the society in question
2)
Give the judiciary and other officers of the law, including the legislative,
more specific guidance as to the values they should adhere to in arriving at
decisions or expositions of the law or in framing new legislation
In every legal system, it may be said that built into it is some kind of value
system which the law reflects
o Ex. inherent values of English society NOT contained in a
specific legal document but are distilled out of a long historical
tradition manifested in certain institutions, constitutional principles,
and conventions of the courts courts embody the spirit or
values of the English way of life in their decisions
x Those who are educated in this tradition can generally be presumed to be
cognizant of the spirit of the community
o Such an approach may serve for a country with a long tradition
of ordered government and with a fairly homogeneous
population which is broadly in accord as to the essential values
which embody the spirit of the values of the community
o BUT in less integrated or more recently established states may
require something more explicit than the repertory of laws and
tradition
x Value of this approach is
o It makes explicit some of the underlying assumptions of the
legal system
o It may render these into obligatory and overriding legal norms
capable of being enforced by the legal process
x
When the law, though perfectly impartially administered according to its tenor is
itself unjust if judged by whatever value system may be applied to test the
substantial justice of the legal rule

According to Hobbes, the only standard of justice is the law itself so
whatever rule the law lays down must ipso facto be just
o
Hobbes seeks to treat all laws as just by definition, but he has
been rightly rejected by most philosophers and lawyers
x English Chief Justice Sir Edward Coke attempted to equate the law with moral
principle and natural law when he described common law as the
perfection of reason
x Unjust law law which is valid in itself, but conflicts with the scale of
values by which we choose to judge it
x
Lack of impartiality still remains as a fundamental breach of the conception of
formal justice
3)
Injustice in this sense is the scale of values
Equity as a kind of justice and formal justice may be treated as unjust if it

complies with the rigid logic of its own requirements but fails to temper its
conclusion in a spirit of equity with the particular circumstances of the case
o
A rule may be perfectly justly administered according to its
tenor and yet may itself embody the most profound of injustice
Ex. Rule of a state excluding members of particular races
or religions from participating in elections might be
applied perfectly justly in relation o those subject to this
rule, but the substantial justice of the rule itself still
remains entirely open to question
In Closing

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x When some of the fundamental values of a legal system are

embodied in the constitution it may be thought that these will make
unnecessary any farther search for underlying values, either on the
lines of natural law or some acceptable ethical basis
x A written constitution embodying a bill of
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Societies are capable of shifting from one end

of the spectrum to the other
OPEN SOCIETY
which it gives effect may go some way in closing the gap between formal
and concrete justice
CHAPTER 7: LAW AND

FREEDOM
I. Introduction
Law functions as a means of directing and imposing restraints upon
human activities
Law + Freedom = Paradox
Answer to the Paradox:
Man is a social being living a life of complex inter-relationships with
the other members of his community
Man cannot be seen as a single individual
Rousseau: Man is born free;; yet everywhere he is in chains.
Man is free in the context of his community Freedom is
not absolute
Freedom is
enjoyed within the social restraints imposed
upon him by his society
BUT, restraint is not an encroachment upon liberty
EXAMPLE: Law restricts physical assault
If indiscriminate assault was permitted, then there would be
a lack of security implications on the safety of human
society
Hence, restraints play an indirect role in ensuring the freedom of all.
Historical Context:
Earlier societies = Inequality was the fundamental law
Freedom was regarded as ensuring that man had security

in the station of life in which Providence had placed him
Societies the recognized slavery Slaves and serfs had no

protection in a legal sense
There was an acceptance of their station due to traditionalism and obligation
Modern societies = Freedom is linked with an egalitarian concept of

society
philosophy advocating the
NOTE: Egalitarian A social
elimination of inequalities in society
Open and Closed Societies
Employed by Max Weber
Ideal types, not absolute
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rights which expresses in
general terms some of the main assumptions of the scale of values to
II. Open and Closed Societies
Philosophy
Example
Wide
field
for
personal
decision Tribal and collectivist pattern, where the
and
for
assuming community is dominant and the individual
individual responsibility counts for little (Collectivist)
(Individualistic)
Western
Society
Democratic
Soviet Union or the Former Nazi Germany
III. Positive and Negative Freedom
Definition
POSITIVE FREEDOM
NEGATIVE FREEDOM
A spiritual conception wherein
Organizing the pattern of society, that
there is a maximum opportunity

for self-realization of every
individual to his full human
capacity
despite all restraints and limitations

placed on individual actions for the
benefit of society, there remains a
large sphere for individual choice as
is compatible with public welfare
Law = Concerned with externals as opposed to the spiritual development of

the citizen
Law guarantees the maximum degree of negative freedom
The law does not care how the individual makes his choices
so long as it is within the parameters of the law
IV. Basic Human Rights
Historical Context:
Americas and the French Revolution = expressed the value of basic
human rights to society
Approach originated distinctively from natural-law
America - evolved the idea of expressing these rights in a written

document (Constitution)
Judges were left to determine the legal effects of these
rights, as well as, the scope of these provisions
Marshall: Rights were over-riding and that any legislation
violating these rights were invalid

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Supra-National
(International) = expressed the
entitlement of all human beings
Universal Declaration of Human Rights of 1948
European Convention of Human Rights
Declaration on the Rule of Law
V. Main Values Expressed in Legal Freedom
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United States freedom of contract was abused by both

individuals and corporations
Countered the abuses by transferring it to state
control
First Move: Legislation against monopolies and restrictive
trade practices
Social Welfare Legislation was propagated
The lack of equality of bargaining position which made freedom entirely
A. Equality and Democracy
one-sided was overlooked by those who viewed freedom of contract as the
Legal Equality
foundation of a free society
Expression of the democratic organization of society, to be insured Modern Society = Recognized that multiple classes of persons are in need
as far as practicable, by a universal franchise, the recognition of
of protection in contracts
equality before the law and the principle of non-discrimination
Growth of the standard-form contracts further exposed the
Non-discrimination = Biggest difficulty
unreality of freedom of contract
Fundamental notion: difference of sex, religion, race, or color is not to
be regarded as a valid principle of discrimination between one citizen
C. The Right of Property
and another in relation to legal rights
Societies generally find that preservation of property is one of the supreme
Difficulty: Modern states like that of Nazi Germany (Anti-Semitism)
purposes of law
and Union of South Africa (Apartheid)
Power of the state to tax the citizens seems to encroach upon this right
Erection of racial or religious discrimination
Reconciliation was found by the introduction of the principle that
2 Important Lessons:
taxation was permissible provided there was consent to it = taxation
1. Rules of law that are not expressive of the mores or standards of
became authorized by a duly elected representative legislature
conduct which prevail in a given community amount to nothing more
Inviolability of property is an important value in Western societies
than dead letters, through passive or active resistance by the
Important inroads regarding control by the State has been made
people.
upon this principle to ensure the welfare of the community
Marxist and Semi-Marxist system (specifically Soviet Russia):
2. If law is to be an effective focus for giving expression to fundamental
values, it cannot be merely a reflection of those values but rather a
Protection of private property is accorded only to property
positive directing force, which can be used in social progress.
acquired by work and is confined to articles of personal use
Dilemma: Involves a non-democratic procedure of an enlightened minority
and not the means of production or land (In Soviet Russia)
leading the recalcitrant or resistant majority in a direction it does not wish
Objects of ownership is limited
to go.
Present day = Property should not be arbitrarily acquired from private
UNLESS, it is recognized that there must be scope for impetus from
persons without adequate compensation
minorities rather than yielding to mass prejudices, it would seem
Despite the universal acceptability of this freedom, its interpretations
democracy is inimical to all progress
beget varied consequences
In this situation, the element of free discussion and the possibility of
D. The Right of Association
influencing public opinion by reasoned argument form a vital element
of democratic equality
Right of various types of groups, whether social, political, or economic, or of
EXAMPLE: by the decisions of the U.S. Supreme Court
any other kind to organize themselves
versus the mass prejudices of the public
When we speak of Right of Association, we speak of multiple things:
Right of business enterprise to organize itself and how far it may be
B. Freedom of Contract
legitimately restrained in order to protect the public against
Historical Context:
monopolies, restrictive practices, and fraud
Regime of laissez faire = freedom of contract was in some way seen
Right of labor to organize itself in trade unions and to deal on a
as one of the supreme values of a developed society
collective basis with employers or associations representing them.
State interference was regarded as a great evil
Right of the people to hold public meetings, for the purpose of
Believed that society could best be developed through the
making protests or attempting to influence public opinion and so forth
right of a citizen to make his own contractual arrangements
This right may clash with the right of the state to preserve
public order
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Modern times = developed in relation to the trade union

organization of labor
After a tumultuous history, trade unions have changed from being
treated as outlaws to being essential organs of modern
democratic community
But, various controversies arose with the involvement of government in the
freedom of labor and trade unions (i.e. Industrial Relations Act 1971)
Question: Whether the Government should intervene in industrial
relations and to what extent.
English View = non-interventionist
U.S., Australia, Scandinavia, etc. = interventionist to a degree
Regular form of compulsory or semi-compulsory arbitral
procedure of a judicial or quasi-judicial character
What is at stake? = Ability of a group of workers to hold to ransom not only a
whole industry but even the whole economic life of the country
F. Freedom from Want and Social Security

Need to protect everyone, not merely against grinding poverty, but also in
the enjoyment of a reasonable standard of life whether in or out of
employment, has gradually established itself as one of the supreme values
of the modern state
Emphasis on the need to spread the risks of misfortune among the
community as a whole, rather than allowing them simply to affect the
particular victim of misfortune
Led to further attempts to try and extend the notion of insurance to
many of the risks attendant on everyday life
Value of social security and the belief that one of the purposes of the legal
system to ensure this comes into conflict with the generally established
principle of civil liability
Civil liability A person is entitled to be paid damages or
compensation if he can establish some negligence or other fault on
the part of a wrongdoer
Idea has been to some extent rejected in the sphere of
industrial injuries
G. Freedom of Speech and of the Press
Fundamental values in democratic and egalitarian communities
Without these values, the possibility of developing and crystallizing
public opinion, and allowing it to be brought to bear upon the
governmental organs of the state, is bound to be virtually ineffective
Freedom of speech can hardly be absolutely unrestricted

Example: Laws against defamation which restricts people from
making unwarranted and untrue attacks on anothers reputation
Most if not all legal systems impose restraints on publications or
representations which are considered to be obscene
Censorship
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Freedom of speech
and press usually implies an
absence of initial censorship, wherein a work can freely
be published but subject to legal action thereafter
Such legal action is dependent on the general law of
defamation, sedition, obscenity, etc. but not on any mere
administrative discretion
Problems:
Determining what are the ultimate limits of tolerance which may
be required by the established value of freedom of speech
Question of how far it is permissible to use media of
entertainment or broadcasting as a means of propagating
doctrines or opinions which may be thought objectionable
either by the community or by certain groups of individuals
How far a democratic state should be prepared to permit
doctrines to be propagated which are themselves aimed at
inspiring intolerance against specific groups
View 1: Law should only concern itself in such matters with
public order, and therefore that it should not attempt to
restrain the expressions of opinion
View 2: Tolerance is an essential feature of the values of a
democratic society
Tolerance involves a paradoxical feature that such tolerance must be
extended towards all persons in relation to any opinions held by them
Doesnt involve the idea that any group should be immune from criticism, but
only that it should not be permissible to insult and abuse its members or
incite hate towards them
In modern times, censorship has a positive aspect
One of the dangers in this age of mass media is that tendency for
the organs of public opinion to fall increasingly into the hands of a
minority
Hence, the dissemination of information has been reduced
to what the general public would adhere to easily and
thus, stamping out more independent forms of journalism
Furthermore, the press has a need to increase circulation which
then leads to irresponsible types of journalism
H. Freedom of Religion
Earlier ages = Strong tendency of religious stigmatization
Modern age = Freedom of religious belief is a recognized value in a
democratic society
Problems:
Religious discrimination
Religious doctrines conflicting with public order (i.e.
polygamy, etc.)
The law generally declines to regard religious groups as being entitled to any
special degree of immunity from legal regulation, and therefore will take action
against breaches of the criminal law however religiously inspired they may be

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One of the most inherent assumptions in the Rule of Law is that no
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which can fall within the ambit of

person shall be found liable for a crime they had not committed
multiple other freedoms
just because they are in some way connected to a group or
Vital aspect is that people should be free to choose where to reside, what
individual that had committed such crime
employment to enter, what lifestyle to lead, to be free to come and go as they
A person shall be answerable only to his own wrongdoing
please, etc.
Group liability was familiar in the earlier phases of legal development
Personal freedom necessitates that the legislators do not make laws
but has since faded in modern legislation
that compel people in terms of their freedoms of employment,
But in terms of civil liability, a man may be answerable for
residence, lifestyle, etc.
the acts of his servants acting within the scope of their
These type of freedoms depend largely on their economic
employment but the explanation for this is that it complies
situation, those who have more in life will have more freedoms of
with public policy
this kind
Public policy in question is that the employer shall be liable for the acts of his
ISSUE: How far a state is willing to enforce a high standard of economic
employee
egalitarianism
Rule of Law also pertains to the exercise of governmental powers
Choice of residence State can go as far as to provide suitable
Governments that adhere to the Rule of Law have established
homes in suitable locations for the portion of the population that do
administrative laws which permit entities to exercise supervisory
not share the same prerogative and choice as the wealthier
powers over the administrative and quasi-judicial functions of the
members, as well as, protecting persons in relation to tenancies
executive branch
occupied by them
There are issues arising from suits brought by citizens
The latter situation does conflict, though, with the rights of
against the state sometimes due to improper, illegal, or
landlords, primarily in the dismantling of the rent system in
negligent exercise of such power
England since the 1941 War
VI. The Problem of Conflicting Values
Freedom to travel there is great state involvement in this freedom
such as the issuance of passports to permit or deny an individual
It is evident that the various freedoms that all men possess is capable of
from entering or leaving their country
conflicting with other freedoms
States also have the right to expel aliens from their territory In assessing this pressing issue, it must be understood that certain freedoms
are above other freedoms in terms of a hierarchy
J. The Rule of Law
Preferred freedoms, or those guaranteed by the Constitution,
Rule of Law imposing those procedural guarantees which have been
should be upheld over the lesser freedoms
found necessary to ensure what in American constitutional practice is known
This logic thus remains to be arbitrary and up to the courts to decide
as due process of law
which freedoms are above others
Involves all matters concerning:
What would be necessary in light of this problem is an informed and
Independence of the Judiciary
educated state, as well as, a high measure of free discussion in all organs
Speedy and fair trial of an accused
of opinion which society can deploy
Providing adequate safeguards regarding arrest and detention
A dogmatically established canon of universally accepted standards
Providing legal aid
of conduct, which is not open to free discussion, would not form an
Considering the issue is between an individual and the state, paramount
adequate basis for an open society
consideration will be made in favor of the accused hence various rights and
VII. Human Rights and Their International Protection
premises govern this concept
Right of the accused against self-incrimination
Reluctance of states to ensure that the rights of either their citizens or aliens
That the agent advocating the accused must be free and
within their territory is upheld has led to the attempts at establishing a supraindependent and not under state control
national authority which can take steps to ensure such rights are upheld and
But the agents duty is to the administration of justice and
protected
not just to his client
Customary international law contributed in the sense that it recognizes only the
No person shall be found guilty of an offense which is not laid down
state, not the individual citizens, hence the absence of suits from individuals on
in a criminal prohibition prior to the commission of the crime (nona state and that customary international law imposes very few restraints on the
retroactivity of penal laws)
sovereignty of a state.
For the purpose of protecting human rights, 2 requisites are necessary:
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1. A clearly laid down code of established human rights

accepted by all civilized states
2. System of judicial machinery whereby issues
involving alleged infringement of those rights can be investigated
But, there is still the question of enforcement
CHAPTER 8:
LAW, SOVEREIGNTY AND THE
STATE
Origins of Sovereignty
x Modern idea of sovereignty associated with the supreme power of lawmaking
o The sovereign is that person / body which is the supreme legislator
o Ultimate legal authority lies in his power to change the law.
Three (3) main historical sources of the concept of sovereignty

o
Roman Emperor
His will had the force of law
Applied in the consolidation of power and independence
by several rulers of the national European States during
th
th
the 15 and 16 c.
o
Papacy
Supreme legislator for all Christendom during the Dark Ages
when secular law lapsed into a mass of local customs and
emperors and kings prioritized expansion of their power
Independent Nation States

Most important source of the modern concept of
sovereignty
Arose when the "unity" of European Christendom was
broken by the Renaissance and Reformation
Sovereignty and the State

x Newly independent states retained the idea that sovereignty is identical
as the king / body
x However, later on, it was recognized that every independent country is a
self-supporting legal system called the State
Ultimate sovereignty resides in the State itself
General theory of Law and Sovereignty

x Jean Bodin (16th century)
o It was the nature of every independent state to possess a
supreme legislative power
o Supreme in two (2) ways
Acknowledged no superior
Authority was completely unfettered
x Effect of natural law previously acknowledged to override law-making power
x
After increasing secularization, the national state was recognized as the

complete master of its own system of positive law
The concept of the state as the ultimate sovereign is not consistently

applied in all countries when it comes to internal laws
o England
Queen in Parliament as possessor of legal sovereignty
State more of a general notion than a sovereign
x A personification of ramifications of legal authority
and although some parts of such authority may
be reposed in some particular person or body,
ultimately, this power is derived from the State
o
France
New constitutions have been introduced over the past
centuries
It is difficult when sovereignty is constantly being
transferred depending on their situation for a certain
period.
They found permanence in wielding sovereignty to the
State itself
Internal and External Sovereignty

x The idea of unity of the national state is most potent in the international
sphere
x Two (2) aspects of sovereignty
o Internal - the supreme domestic legislator
o External - the state does not have much power to change the law
but has total freedom to act as he pleases
International relations: state sovereignty means each
state was entirely free to regulate its relations with
other states
There is an absence of an acknowledged superior
authority
x Development of natural law theory
o Arose from the "unhappy state of lawlessness" among independent
nations

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Theory: nations, like individuals before civil society
came into being, were in a state of nature towards one another,
and were directly governed by natural law
While nations were shaking off natural law in the internal
sphere, they were still subjected to it externally
Attempts were made to explain the rules of natural law and
from these rules, the general principles of international law
were derived.
Law as the Command of the Sovereign
x John Austin - commonly associated with the command theory of law and
legal positivism
x Positivist thought
o
Autonomy of law as a system of positive norms whose validity
o can be determined within the legal system itself -giver
Rules are laid down by some identifiable human law
x Command (imperative) theory of law
o Law is what the sovereign commands
o Nothing can be law if it is not commanded by the sovereign
Legal validity can be determined by ascertaining whether
the norm in question can be shown to have been laid down
by the sovereign
o
How do we identify the sovereign? Where does it derive validity?
There is a vicious cycle in answering these
questions
x
Sovereignty is invoked to validate law but law
is also invoked to create the sovereign
Max Weber - this circularity is a deliberate feature of the
system
Legal theory must be based on facts of legal life
x Legal systems reflect the vicious cycle.
x
Justice Holmes The life of law is not logic but
experience
Who is the Sovereign? Austin's Theory
x The problem of sovereignty is about determining the ultimate source of
x power
Sovereignty is defined as the power in the state which commanded habitual
obedience and which did not yield to any other power
o
It is based on the sociological fact of power itself
x How is the source of actual power to be investigated? How does it converted

into legal terms to provide a foundation for the legal system?
o
An essential mark of an independent State is a sovereign power
to whom unqualified allegiance is paid and was subject to no
other power
x How was the actual possession of power to be located?
o
Constitutional rules give clues to the source of actual power
Ex. Sovereignty in England is attributed to the King, the
House of Lords and the electors.
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The Unity and Illimitability of Sovereignty

x
Austins 2 essential attributes of the sovereign
o Indivisibility/unity - division of sovereigns would mean
also mean division of allegiances
Sovereign must be a unity
o Illimitability - limitations are a result of an external power
x
England
o
Unity of the sovereignty of parliament has long been accepted
o Repeals in laws and statutes reflects parliaments inability to bind
itself
x However, Austin also claims that constitutional laws dealing with the structure
of the sovereign power are not really legal because sovereignty is determined
by obedience
o
Instead, these laws are what Austin calls positive morality.
o
Theoretically, they can be ignored
x Even if there must be unity of sovereignty, there may still be different rules for
the exercise of their functions
o These rules are essential in establishing which acts of sovereignty
were to be exercised
o
Rules give validity to the activities of the body.
Federal Constitutions
x
Legislative
power is distributed between a central legislature and a
number of provincial legislatures

o
Ex. U.S. - power is divided between the federal and state organs
x Where does ultimate sovereignty lie in this case?
o Austin claims to find it among the combined electorates of the
o state legislature
It is the ultimate sovereign who has the power to amend the
constitution
However, in reality, such procedure was successfully done
only twice
More often, the federal constitution cannot be amended
without the consent of a particular body
x
Unlimited sovereignty is not applicable to a federal constitution
o Bill of Rights controls and limits legislation
o Courts have the power to treat legislation as void if contrary to the
o basic norms of the Constitution
Restraints may be considered by Austin as positive morality but
courts and the community treat them as part of the legal system that
is entitled to reverence
Constitutional Changes
What happens if the Constitution changes and power is transferred from one body to
another? Would such transfer to final and irrevocable? Or would the abdicating
sovereign retain authority and be able to reassume when it pleases?
x This is the realm of power politics
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x To understand legal systems, there is a need of a legal theory
which will account for constitutional patterns of well-ordered states and
their legal relations
o
Ex. How does the Parliament Act (depriving the House of Lords
veto power) fit into the structure of the legal system? Why does
Parliament impose limits on its power to legislate? How can judges
invalidate legislation?
o
In this realm, power takes ascendancy over law to a degree where it
is impossible to disregard actual factors of power and obedience in
trying to determine legal validity
Ex. Cromwellian regime superseding the monarchy, William
called to replace James II after the latters expulsion
x
Austinian conception of habitual obedience to A
rather than B is clearly relevant as explaining
how legal authority can pass from one to the
other regardless of the legal regulations in
operation
o In an operative legal system, there needs to be a high degree of
obedience to the existing system
o During civil war and revolution, it may be necessary to interpret legal
systems in terms of actual obedience to the prevailing power
Transitional stage where law and power are largely
o
merged
However, when this stage passed, it is no longer necessary to look
for the ultimate de facto power because by then, the constitutional
rules will be back in place.
Power, Force and Sanctions
However, Austin seems mistaken in insisting upon a sanction

being annexed to every command of the sovereign for it to
constitute a positive legal duty
o
No legal system that
has prevailed and is likely to continue can
function unless it is ultimately rooted in a background of coercive
machinery which can enforce compliance with its rules and decrees
o
If suffices that sanctionless duties fit into the whole pattern of norms
recognized as possessing legal attributes for it to merit treatment as a
specifically legal norm
State, Sovereignty and the International Sphere
x International law poses a problem for those who believe in the absolute
character of national sovereignty
o If international law does exist, it is of a higher level than national
law and must bind and limit even the sovereigns of the nation
o states - international law is not really law but positive morality
Austin
o
Hegel - international law is always subordinate to reasons of
state
x Defense of international law: it is an auto-limitation
o
It operates by the consent
of states who have long agreed to
hold the customary principles of international law such as
observance of treaties
x Austin held that law is the command of the sovereign. With this comes the
power to enforce penalties for failure to obey
x Sanctions in law have a very wide meaning
o
Not just penalties for punishment
o
It is any coercive process by which the law seeks to impose its
o will in the last resort to comply with a legal order or judgment
Ex. Non-criminal offenses (ex. Failure to comply with an
injunction) Court may imprison an offender
o
Ex. Civil offenses - court may sell a debtors property for failure to
pay his debts.
x There are also laws which have no penalty but still impose legal rules .
They are permissive and simply lay down conditions in order to achieve the
purpose of the law
o
Ex. formalities of a will, transactions, etc.
o
Non-compliance does not impose a penalty but only makes such
acts void
o
Although, in a general sense, a declaration of nullity may still be
considered as a sanction since no one can gain rights from it.
x What happens if a country passes an act which directly contravenes

international law?
o Two (2) approaches
To treat international law as part of its own law and
directly binding
x International law may abrogate domestic laws
To regard international law as an intruder
x It is subordinate to national law although it may
guide interpretation of local law
o
Whatever approach the court may adopt, the State may still be liable
for the breach of international law
x Which leads to the question:
how can a national sovereign state be
subordinated to a system of international legal rules without loss of its
independent sovereignty? does not create a higher state entity. It is simply
o
International law
recognizing legal rules which bind the states themselves
o Two (2) types of international rules
Customary - i.e. immunity of diplomats
Treaty rules - i.e. international copyright and postal
arrangements
o
Failure to follow any of the two (2) is a breach of international
o law
This does not mean that the rule of international law will be
automatically recognized in the courts of the country concerned
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Whatever the domestic law, the breach of
international law remains
x International law has no coercive
procedure (has not yet attained stage of regular
adjudication and enforcement of disputes)
x
Yet there is universal acceptance of the fact
that an international legal duty imposes a duty
comparable to that of a rule of domestic law
o International law, while lacking some
features of domestic law (compulsory
adjudication
and
enforcement)
possesses
many
characteristics
closely analogous to a national legal
system
o
Vital difference between the two
systems is the nature of subjects of
two systems
States vs. individuals
x Within its own internal sphere, national sovereign retains domestic
sovereignty and may legislate or act in disregard of international
obligation
o But it cannot alter, abrogate, or lessen the force of these
international obligations vis--vis other states
However, this may eventually become increasingly

unrealistic. Lawyers will realize that change has penetrated
their law and parliament could no longer legislate in
defiance of overriding matters like the EEC Treaty.
Kelsens Pure Theory of Law

Kelsen
x Many features similar with Austin
x Emphasized that law is entirely autonomous and self-contained
o
Its validity must be based on legal terms and not morals x
Law is concerned not with facts of human life but with norms
o
Norms - rules or standards of conduct forming part of a unified
o
o
Treaty of Rome and National Sovereignty

x Treaty of Rome - established the European Economic Community (EEC)
x Features of the EEC
o
Permanent arrangement with no provision for withdrawal
o
Set up various institutions (Council and Commission) with wide
range of powers
They make decisions and lay down rules binding on all
members
Includes laws on tariffs, restrictive trade practices, free
movement of workers, establishment of commercial
companies, etc.
o
They have a Court of Justice
Final court of appeals on matters regarding the treaty
Held in a number of decisions that community law
prevails over national legislation
x In theory, states may still disregard this set up
o
However, the practical result is for national states to place their
national law in line with the requirements of the treaty
x England it is difficult to conceive any international treaty abrogating
national law because parliamentary sovereignty has been traditionally
practiced for years
o If Parliament passes an act contrary to the Court, it would still follow
parliament.
system
Hierarchy of norms - series of norms laid on at various levels of
generality and subordination
Highest norms are most general and abstract
Grundnorm - the basic norm or ultimate premise of the whole
system
Elephant that supports the world; you cannot ask what
supports this elephant
Kelsens main argument - in any normative system,
there must come a point beyond which you cannot go
because you have come to the outer edge of the
whole system
How do we decide what is the basic norm?
st
Go back to the 1 Constitution (either as a result of
revolution or for a territory not previously possessing a
constitution)
st
The basic norm is the supposition that the 1 Constitution
is valid and should be obeyed
x England ultimate constitutional norm is the rule
imposing the sovereignty of Parliament
x U.S. ultimate constitutional norms are those
actually contained in the latest amended version
of the written constitution itself
Basic Norm of International Law

x Two (2) 2 views
st
o 1 each nation has its own ultimate norm and treats
international law as valid only if it fits their national law
nd
o 2 there is a monistic system where the basic norm of every
state is a rule imposing obedience to international law
This system is not only desirable but is in fact operative
While the coercive system in international law is not as
effective as that of national law, this does not deprive it of
its legal status

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x
Kelsens approach is more consistent and logical than
Austins but it is not without difficulty
o Right assertion legal validity cannot be reposed on purely de
like obedience. It must be explained in
facto considerations
normative terms
o Problem he fails to clarify the status of the single basic norm
x He throws light on the query as to how fundamental basis of a constitution may
be established and effected without revolutionary convulsions.
CHAPTER 9: LAW AND

SOCIETY
INTRODUCTION
Natural-law schools and positivists - heavily influenced by an
individualist
approach to human society
Social Contract Theory
Formed an indispensable link in the structure of natural-law ideology
Maintained that society was formed by agreement of individuals who
composed it
Natural law formed the basis not only of positive law but of society
itself
This theory was rationalist, individualist and formal in character
Became a scope for disagreements
Locke - favored the retention of fundamental natural rights
Hobbes - argued that absolute sovereignty was transferred
to the ruler
Utilitarian basis of positivism
Relied in a rational choice of ends directed to human happiness and
a psychological framework of human nature
Austin
Leant heavily on this psychological approach.
The role of sanctions as involving a threat of the infliction of
pain directed to the individual and thereby inducing the state
of obedience -> fundamental presupposition of all law.
Rejected by Kelsen
Kelsen
Seeks to disassociate legal questions from underlying social
problems and relations to which legal norms may be applied
Legal science is concerned solely with formal pattern of
rules existing in a realm distinct from that of the facts for
human problems
He does not deny the existence of such facts but asserts
that they are totally separated from law
INDIVIDUALISM AND COLLECTIVISM
18th & 19th centuries - individualist though assumed a more distinctly
economic pattern
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Individualism developed into a political and economic slogan in the

form of laissez faire:
The assumption that law should
interfere as little as
possible with individual freedom of action
Underlay a good deal of legal and social speculation
Translated into action via the doctrine of freedom of contract
Sir Henry Maine
Society had progressed by a movement from status to contract
Freedom of individual to make any contract = symbol of a developed
and open society
It was therefore the policy of law to maintain this freedom
His devotees - argues that it was wrong for the legislature to limit the
work hours in mines/factories because workers are free to accept or
reject such conditions
Liberty of bargaining = essence of an advanced society
SOCIETY AS AN EMERGENT ENTITY
Rousseau
The unity of society in his conception of the 'general will', an

emergent entity distinct from that of the individual wills of the
members of society
Edmund Burke
Emphasized the traditional and historical roots of the social organism
Repudiated the interpretation of the national state in terms of a
Hegel partnership in a commercial venture
Apostle of freedom
Provided the philosophical groundwork for the pattern of society as a
metaphysical entity both distinct from and superior to the individuals
who composed it
Linked to historicism which envisaged the development of human
history as following a preordained pattern
The 'idea' was more real than the world of physical sensations
The 'idea' governing human history was that of 'reason'
Idea of reason = national state
Citizens are subordinated to the aims of the state
Insistent that this type of state = highest manifestation of
human culture and freedom
Conflict of national
states = essential feature of human
progress and freedom
Denied the existence of natural law
State law itself provided the standard of morality
Nazism and Fascism
Subscribed to the idea of the nation-state as an emergent entity
Embodying highest reality attainable by man
And
where the individual and the dictates of his private
conscience and morality were utterly subordinated
Nietzsche
Assert that the law of the state was the highest morality

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Law itself was no mere matter of legal

formulation
The intuitive expression of the dictates were

mystically perceived and conveyed by an inspired leader
whose intuitions represented the ultimate in truth, law and
morality
THE ECONOMIC FORCES OF SOCIETY
Karl Marx
Follower of Hegel
Introduced to turn Hegel 'right way up'
Assert that it was not idea that ruled the world but material forces
(economic)
Described his method as 'dialectic materialism'
Contradictions in the capitalist system -> result in revolutionary
upheaval -> emergence of new socialist society
2 strands of Marxian thought:
Historicist
Foretells and period of doom and destruction
Man will be reborn in a new era of peace and justice

Prophetic
Attempt to apply scientific principles to the study of human
society
Marxism made a major contribution to the foundation of legal as well as other
forms of sociology
THE SCIENCE OF SOCIOLOGY APPLIED TODAY
Benthamite utilitarianism - scientific principles could be applied to studies such
as law and criminology
Comte
Invented the new term 'sociology'
Man in society was just as capable of being scientifically studied as
was any other phenomenon of the natural world
RUDOLF VON JHERING
Exerted a profound influence on the most important sociological jurist of the
Anglo-American world, Roscoe Pound
Saw the law not as a formal system of rules but as a prime method of ordering
society
Society - composed of a mass of competing 'interests'
Law stood as a kind of impartial mediator of all these competing needs and
claims
The real requirement was to relate the legal process
to the
developing needs of existing society
MAX WEBER AND EHRLICH (German writers)
Weber
Emphasized how the modern law of the West had
become
increasingly institutionalized through the bureaucratization of the
modern state
The law as a gapless system of legal principles
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'Living law' - social norms which governed society

Not static but in a continual process of change
Ethical values
prevalent in society will be
reflected in the living law
Every society had an inner order of the associations of human beings which
composed it
This inner order:
Dominated life itself
Equivalent to what later anthropologists now call the pattern of a
culture
Those responsible in developing the legal system must be in close
touch with the inner order
ROSCOE POUND AND AMERICAN SOCIOLOGY
Legal process as a form of social engineering
Problems of our society were largely based on ignorance rather than on
inherent human defects
Every coherent society has a pattern of culture which determines its various
ideologies
Law develops certain fundamental postulates of its own which tend to set the
pattern or framework within which law develops
New postulates = right to work, right to be legally protected against
the wear and tear of one's job (in contrast to freedom of contract)
Conflicts of Interests
Legal process as a form of social control
All conflicting and competing interests are scrutinized, compared,
accepted or rejectee
Courts as the supreme agent of the law in effecting social control
2 problems:
i. How the various interests competing for legal recognition
could be classified and correlated
Pound pointed that interests were not static since
new situations were constantly creating new needs
and claims
ii. How conflicts between them were resolved by the courts
and whether procedures for this purpose could be improved
Pound realized that the basic need is to have
some system of values by which competing
interests can be compared and a decision reached
as to which is to prevail
The Process of Evaluation
3 main ways in which this process is effected by courts:
i. Court may follow patterns of the past
ii. Court may attempt to grasp fundamental legal postulates of
its own age
iii. Court may trust to its own instinct and judge on a roughand-ready, hit-and-miss basis
LATER DEVELOPMENTS: LEGAL REALISM IN THE USA
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'Free-law' school - emerged rejecting the idea that legal
decisions could be based upon rules but claiming that they were
essentially a matter of policy and choice
Rise of philosophy of pragmatism
Legal Realist - Justice Oliver Wendell Holmes
The lawyer truly worthy of his salt was one who was not merely
acquainted with the set of theoretical rules said to be binding in the
courts but who explored all the sociological and psychological
factors bearing upon decision making
The law is a great social fabric constituted by human behavior
2 aspect of American realism
Technique of predicting decision-making
Attempt to achieve a profounder understanding of the functioning of
the legal system
Legal justice is thus a process of mediation or arbitration rather that
adjudication in accordance to fixed rules
Sometimes called the justice of "the cadi under the palm tree"
THE SCANDINAVIAN REALISTS
Places emphasis on the need to explore the sociological background of legal
rules
More philosophical than American counterparts
Karl Olivecrona
There are rules of law and that these are in a mysterious way
binding upon us is a mere fantasy created in our minds by various
superstitions and magical beliefs of the past
Law
No more than lot of words written on paper
No more than a form of psychology
But to describe this as mere fiction is to deny an essential
feature of man's social heritage
IDEOLOGY AND LAW
Perennial contrast between East and West
Modern India
There is an ancient civilization based on the traditional
standards of Hindu culture
Beliefs derived from Hindu religion and its law books
require adherence to a rigid caste system
This represents Ehrlichs living law of the Hindus
LAW IN THE SOVIET UNION
Ideological conflict between the Communist countries and the West (aka
East vs West) a misconception
Marxism a product of Western culture closely linked with the scientific
materialism derived from the Renaissance and with the rationalism of the
age of Enlightenment
Soviet Communism
characteristic of a collectivist age

The state has assumed large-scale responsibilities in the sphere of
industrial control and social welfare
England
There are state enterprises in the fields of transport and
fuel
State corporations run important channels of communication such
as radio and television
There is a system of national health and industrial injury insurance
Whereas in Russia the state has become the universal controller and
provider, in a limited form of socialism such as has developed in England
Rivalry may exist in between commercial and state enterprises
Marxist
The law is merely the means of imposing on the population what
the dominant section regards as serving its economic interests
Those who administer the law have no other function that to ensure
that this purpose is achieved.
The only freedom which is meaningful is one in which the state
controls the whole economic machinery
THE CONTRASTING IDEOLOGIES OF COMMON LAW AND CIVIL LAW
Civil Law of the Continent
Grown up largely as the work of learned jurists and ideas worked
out deductively and systematically in a spirit of rationalism
Codified in most countries
Remains true that the Catholic faith is predominant and that natural-law
ideology inspires a good deal of Continental legal thought
Common Law
Roman law
Primarily Prostestant and secularist
Steeped I the beliefs of English empiricism
Law is a matter of political or practical decision to be distinguished
from religion and morality
Treaty of Rome
Document drawn up in accordance with the spirit of the civil law
tradition
Establishes institutions such as the Court of Justice
THE IDEOLOGY OF INTERNATIONAL LAW
International law, like any other legal system, will depend for its effectiveness
in large measure on the extent to which it corresponds to the underlying
living law.
Law
Important solvent of social conflict

Can act as a useful emollient if not a cure to the disorders of our
times
Without a serious mutual effort to understand the cultural and legal
mentalities of other nations, little effective progress in international law is
either probable or even impossible.
Cannot but be a reflectionhowever partial or imperfectof the society

in which it operates and if that society contains contradictions, these will
be manifested in the fabric of the law itself.

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Law and Custom Compared
x In all human societies, we always to find sets of norms regulating the conduct
of their members inter se and regarded as binding upon them
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Fustel de Coulange and Durkheim importance of

ancestor-worship in molding social institutions and
creating social solidary

BUT not impossible to differentiate between religious and secular rules direct
o
Religious rules violations of which draw upon the offender
o
Custom, Habit and Convention

Customary laws (Customs)
o
Not just mere habit or convention
o
Socially obligatory element characteristic of customary
observance
o
Norms operating in less developed societies
o
Sense of obligation which arises because the individual
recognizes that the doing of a certain act is imposed upon him
by reason of the existence of a given legal, social, or moral
norm
o
May result from deliberate innovations instituted by the ruling class
or the example of some authoritative or highly reverenced
personage in a community
x Habit
o
Course of conduct which we regularly, though not necessarily
invariably, pursue but without any sense of obligation or
compulsion to do so
o
They are not regarded as socially compulsive
o
Do not refer to or depend on norms, but simply involve regularities
of behaviors which are in fact observed
o
Can and do become converted into customs
x Convention
o
In between customs and habit
o
Certain observances which, while not regarded as fully obligatory,
may nevertheless be regarded as proper modes of behavior
which people are expected to carry out and such omissions are
accordingly tolerated
o
While particular individuals may feel themselves bound to observe
it, it is not regarded as generally binding, and the individual may
largely please himself whether he conforms or not
x Normative custom and convention (establish rules of conduct for
compliance) vs. habit (no norms, just personal idiosyncrasy)
punishment at the hands of supernatural powers
Secular rules regulate social and economic organization of

community, enforcement in the hands of some secular authority
(tribe/clan/chieftain/group of elders) or the next-of-kin of the injured
person
Custom in Primitive Society

x Impossible to differentiate between legal, moral, and religious norms
x The authoritative source of customs will generally be attributed to some
divine, semi-divine, or supernatural powers, often believed to be the
ancestral founders of the tribe itself
First major misconception: in early society customs was completely rigid

and unchanging, and that the primitive man was born into a helpless
condition of total conformity to tribal customs. (The group rather than the
individual was the only unit of the social order)

o
Malinowski: rules of a primitive society derive not from the dark
beliefs in and fear of the supernatural, but rather, as indeed in our
own society, on the need for reciprocity in social and economic
relations
o
These rules are in a manner similar to our own legal systems,
subject to a process of constant adaptation to new situations,
old rule being re-interpreted and new rules being from time to time
created
x Second major misconception: primitive man was caught up like a fly in a
web of inherited customs and that so great was the fear of the forces of
religion and magic that violation of custom by an individual offender
was virtually unthinkable. Therefore, no sanctions were really
necessary in such a society, for customs were self-enforcing and any
occasional violation could be left to the supernatural powers
o
All societies seem to have some form of legally controlled sanctions
for punishing breaches of the rules
o
Malinowski: The working of primitive, as of developed societies,
rests on coercive sanctions, though it may be the feeling or need
for reciprocity that accounts for its effective functioning
x
Form and effectiveness which sanctions may take will depend upon how
highly the tribal institutions are developed
o
In a very underdeveloped state of society, who possesses hardly

any formal tribal organization and no system of law enforcement, the
only sanction, apart from supernatural retribution or the blood-feud,
may be that of shaming a defaulter into conformity

In more serious cases, socially approved force may be
applied, and the ultimate sanction of compulsion and
even death may be inflicted when the life of the
community is endangered
x Main objective of sanction is not much to punish the individual offender but to
restore the status quo ante, that is, to maintain the social order, for the
breach is regarded as disturbing social solidarity, which has then to be
restored

FERRER, SJ)
33

_________________________
x Vital contrast between primitive customs and developed law is
not that the former lacks the substantive features of law, or that it
is unsupported by sanctions, but simply that there is an absence of

centralized government
The Absence of Legal Machinery in Primitive Society
x Primitive law possess a flexibility analogous to developed law in its
ability to adjust to new conditions
x New customs or interpretation DO NOT derive its authority from a formal
legislative and constitutional power vested in some person or body;
recognition will be given to it because of the reverence felt for the
chieftain or the elders, or because these have invoked the spirit of the
tribal ancestors or some other supernatural force, or possibly even
because the decision or ruling appears to the community as being
eminently just and reasonable
x In a society with no records, the operative custom of the tribe must depend
upon the accuracy, reliability, and honesty of the memories of those in
whom it is enshrined
o The fallibility of human memory alone must account for a good deal
of gradual erosion of and accretion to the body of customary law
x Lack of established judicial tribunals to settle disputes and the absence
of centralized machinery for enforcing decisions mean that primitive
law is dependent on rather indiscriminate modes of enforcement
x Roscoe Pound every human society possess its basic legal ideology or
jural postulates which form the main though usually implicit presuppositions of its legal systems
o Applied by Hoebel to a large variety of primitive societies the
manner in which the postulates of the particular societies are
related to the actual legal rules and institutions of that society, and
the way in which these reflect the physical environment and the
cultural circumstances of the societies in question
Society has a pattern of legal norms directed to
maintaining a stable order confirming with its basic
postulates
The success of a society in maintaining such stability will
depend upon the degree to which its basic ideology
commands general assent
Primitive Law and International Law Compared
PRIMITIVE LAW
INTERNATIONAL LAW
Possess many of the distinct attributes of law

while lacking the vital central organs of law
and government (legislator, court, and
executive organ)
It constitutes a binding normative system

relying for enforcement on self-help remedies,
but lacks the centralized organs which are
the features of developed laws
Governs individuals
Law between and governing the conduct of

national states and those states are for the
most
part
highly
developed
and
technologically equipped communities
Whole problem of enforcement when whole
nations have to be coerced
Customary Law in Archaic and Feudal Societies

x It is generally recognized that there is a legislative power of a somewhat
indeterminate character vested somewhere in the community
x The basis of the law still remains customary, legislation being regarded
as altogether exceptional and resting, if not on direct divine interposition,
then at least upon divine inspiration or the approval of the gods
x This law naturally was not a systematic code in the modern sense but
enacted a number of miscellaneous matter of which public knowledge was
required or clarification of the ancient custom was sought
x Much of the law remained customary and unwritten
Customary Law in China
x Chinese regarded the state of the world as a kind of harmony between
various tension or forces
x Customary norms prevailed in China and in some respects perhaps more
authoritatively
x In the realm of law-disputes, legal justice consisted of an attempt to harmonize
the interests of the parties in accordance with the spirit of universal harmony, of
which sufficient intimation had been vouchsafed to human wisdom
Medieval Europe
x Governed by a body of customary laws, some parts of which are
gradually embodied in written code
x These codes are completely secular and do not rely upon divine origin
or inspiration
x The slow development of feudalism out of the social economic disorders of
the Dark Ages led to the breakdown of central government
A mans legal status depending upon his tenure of land and his relation to his feudal
overlord from whom he had that land
x In this state of affairs, the law tended to break up into a vast congeries of
local customary laws administered by the feudal lords in their own
local courts, and such so-called authority as was retained by the king
was extremely weak and virtually unenforceable
x Forces which tended slowly to offset the anarchic features of feudal Europe

FERRER, SJ)
34

_________________________
o Institution of the Catholic Church, with the papacy at
its head, claiming and often achieving an overall supremacy over
the Christian kingdom of Western Europe
The canon law of the papacy was a sophisticated written
law, and possessed a supreme sovereign legislator in the
person of the Pope
The canon law was doubtless customary in origin and

character, none the less it was for the most part incorporated
in codes or papal decrees and no one doubted that any part
of it could be changed at the will of the Pope
himself
An indeterminate power of legislation was regarded as vested
in the king, assisted by his council of magnates of the realm
The king had an ultimate judicial authority to decide
legal disputes and by so doing to declare
authoritatively the customs of the realm
Rise of cities governed by a merchant-class in the later Middle
Ages created the need for a more developed commercial law
and one of more than merely local application
x The idea of customary law, written or unwritten, as peculiarly rigid and

unbending, obtains no support from the customs of this period
x In feudal kingdoms, the whole of the law was regarded as customary,
legislation and judicial decisions being treated as no more than various
methods either of declaring old customs or creating new ones
Common Law and Customary Laws
x A common law for the whole realm was established and local customs
were substantially superseded and overrun by the common custom of
the realm
o
Not a customary law
o The product of a sophisticated legal professional tradition and
technique
o
Unwritten, in the sense of not being enacted, but contained in
innumerable recorded decisions of the judges
o
Common law is something of a bridge between genuinely
customary laws, and a highly developed codified system of
law to be found in many modern states
o
Judicial law tends to develop a certain autonomy of its own
reflecting rather than the unsophisticated approach that the layman
is likely to bring to the rights and wrongs of his daily commerce
o
The judges were not so much representative of the community
as a whole but were drawn from the rather limited ruling and
property-owning class, so that the ideology injected by them into
the law strongly reflected the attitude of that class
The Role of Customs in Modern Law

x Only a subordinate place can be found for customs as a source
of new legal rules
x Three (3) main ways in which custom may operate as a direct lawmaking source even in the context of a modern state
o
Local customs
o Constitutional customs
o Mercantile customs
Local Customs
x For a custom to be valid, it must be found by the court to be not
unreasonable
x Old customary law is obligatory in itself and quite independent of
judicial sanction or approval, and indeed may operate even in the
absence of any judicial system
x In modern English law, the fact that the court retains the power to declare
that any custom is invalid as being unreasonable shows plainly enough. Not
only the subordinate role of customs, but also that, whatever the theory, no
custom can be regarded as authoritative in itself unless the court has
set its judicial seal upon it
Constitutional Customs
x Function of custom in determining constitutional practices
x Conventional constitutional rules which, while regarded as in the highest
degree obligatory, are none the less lacking in legal authority
o
Regarded as binding politically and perhaps morally, but not in
law
Owe validity not, as with ordinary customary law, to the adhesion of the
community as a whole to these practices, but rather to their acceptance
over many generations by the ruling class, including the judges and
the legal profession
Mercantile Customs
x Played a crucial role in the development of commercial law
x Operation of commercial contracts constitute so predominant a feature of
business relationship sufficiently testifies to the importance of aligning
positive mercantile law with the fundamental assumptions upon which
different classes of business transactions are based
Standard-form contracts
x Another way in which the commercial community is able to impose, in quasilegislative fashion, its own practices and requirements in many types of
transaction
x Consists of a printed form in standardized terms
x Exposed the hollowness of the old-fashioned concept of freedom of contract
by legislative provisions designed to protect the imprudent consumer
x Devised rather to consolidate and confirm those rules and usages
which are best fitted to protect the interests of particular industries or

FERRER, SJ)
35
________________________ B
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suppliers
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, rather than to strike a balance between the needs and
practices of all concerned

x Confer one-sided benefits on those who possess the power
and the resources to impose their will on the consumers has posed many new
complex problems which are still far from being adequately resolved
Custom in International Law
x International law is based upon the established and gradually developing
customs prevailing between civilized states, including the general
customary rule that treaties are to be regarded as legally obligatory
x International law is a form of customary law, and shares with earlier
forms of customary law a lack of definition as to the means by which
practices and usages are transmuted into legally binding customs
x International law is not a law directed to individuals but is a law governing
the relations of developed or semi-developed states, and its prevailing rules
have therefore to be sifted in a highly sophisticated manner
Customs and the Historical School
x Hegel propounded his doctrine of the State as a living organism, an
end in itself, and the highest embodiment of human reason
x Savigny law was not a deliberately created product of some artificially
contrived legislator, but was a slow organic distillation of the spirit of the
particular people (Volksgeist) among which it operated
o
Such a law must be understood as the product of a long and
continuing historical process and its validity depended on the
fact that its traditional character was rooted in the popular
consciousness and was thus a true national law in accordance
with the spirit of the people
o
Legislation was viewed with great suspicion as an arbitrary
interference with the gradual development of historically based
customary norms, and codification was especially despised
x Historical approach
o
Law is not just an abstract set of rules imposed on society but
is an integral part of that society deeply rooted in the social
and economic order in which it functions and embodying
traditional value-systems which confer meaning and purpose
upon the given society
o
Essentially backward-looking, seeing historical precedents and
explanations for law as it has develop in modern societies
x Marxist doctrine of law and modern sociological jurisprudence are
forward-looking, being concerned with the moulding of the law to
enable it to tackle new social problems as these arise
The Volksgeist
x
Cardinal weakness in German version of the historical school was its emphasis
on the highly dubious conception of the people as an identifiable entity, a
collective entity resembling the general will of Rousseau and possessing
a mysterious collective consciousness whose
M ARCEL M
O
product is not merely language, art, and literature, but all national
O
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AMINAL
R
ETIRAD
O
__________________
_______
ONQUILL
O
institutions, including that of law

x Volk is capable of reference not only to a people but to a nation,
a race or a racial group
The English Historical School

x Sir Henry Maine substituted for the mysticism of the Volksgeist the
evolutionist hypothesis of the Darwinians and showed the need of a
progressive society to adapt its law to new social requirements
o
Insisted that earlier ages could only be understood in their own terms
and their own historical context

o Urged that only legislation and codification could be effective
to solve the complex legal problems of the modern state
o Although history might increase our understanding of the past and
of the present state of the law, and though we cannot ignore the
extent to which that present state is historically conditioned, history
must not be used as a strait-jacket to impose traditional
attitudes upon the needs of a new age
x Herbert Spencer a movement from a rigid status society to a freedomloving society whose relations could be voluntarily established on the basis
of contract

FERRER, SJ)
36

PHILO CPO The Idea of Law Reviewer Clean 1C 2018

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THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

CHAPTER 1: IS LAW NECESSARY?

The Nature of Man Is man good or evil?

Man either the incarnation of evil or at best an amalgam of good and

Law is necessary as it is an indispensable restraint upon the forces of

Mans nature as inherently good

The Law and Forces of Evil (2 Main Views)

Man is originally created good by nature BUT because of sin,

Golden Age Primeval innocence when men lived simple,

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

Mutual aid would inevitably replace the coercive system

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

Innate Goodness and the Price of Civilization

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

Modern Day Anarchists

CHAPTER 2: LAW AND FORCE

Ancient Mesopotamia two gods specially revered

Authority and Moral

Response superior party can legitimately give orders which

There is a connexion between the idea of legitimate authority (which has to be

Without authority (and decrees which determine order in the world),

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

Institutionalizing the original charisma

the use of force

be replaced by anarchy and disorder

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

Force in International Law

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

All civilized countries acknowledge to be binding upon them

Can We Dispense with Force?

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

Final stage hardly ever reached

Command theory of law as expounded by John Austin

Law and Religion

Disobedience = divine punishment

Lawmakers viewed as mythical, semi-divine, or heroic

Why to a god, indubitable to a god.

Story of Orestes man avenged his murdered father by killing his

Opened for theocratic form of rule

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR

Scripture full of doubts and obscure language which mean it

would have to be interpreted by people before it could be treated as

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF

Hebraic approach to moral law

divine afflatus (divine creative impulse)

Contained some mystical and irrational elements in Greek religion

and philosophy found in Orphic rites and Pythagoreanism but

x Philosophy of Hegel individuals are treated as submerged in

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

THE MEN AND/OR WOMEN OF THE CHATERNAL ORDER OF CPO

PHILOSOPHY OF LAW: THE IDEA OF LAW (FR FERRER, SJ)

o This new way of sentencing inquires into the