Define philosophy.

Philosophy is derived from the Greek word, philosophia, PHILO and SOPHIA
wisdom --which literally means "love of wisdom. It is the study of general and
fundamental problems concerning matters such as existence, knowledge, values,
reason, mind, and language. The term was probably coined by Pythagoras (c. 570
c. 495 BC). Historically, "philosophy" encompassed any body of knowledge.

Define Philosophy of Law.

Philosophy of law is concerned with providing a general philosophical analysis of
law and legal institutions. Issues in the field range from abstract conceptual
questions about the nature of law and legal systems to normative questions about
the relationship between law and morality and the justification for various legal
institutions.

Differentiate Philosophy of Law and Legal Philosophy.

Philosophy of law is the nature of law and concepts of the structure of law. It is also
a nature of law and its relation to society, norms, and practices. It asks what is the
role of the law in society? It deals with the essence of the law. While, legal
philosophy is a branch of philosophy that concerns with the law and the principles.
It is a strict concept followed by the court, judges, and attorneys. It focuses on the
law itself and the principles governing and or influencing it.

Enumerate the importance of studying Philosophy of Law according to

Bertrand Russell.

Studying philosophy aims for knowledge that unifies and systemized bodies of
sciences. It requires critical examination and It does not give definite answers.
Definite answers moves away from Philosophy i.e. Human mind in Psychology

The value of philosophy is sought largely in its very uncertainty. The essence of
philosophy is to ponder, to keep looking, quest for knowledge, to be hungry to seek
more knowledge (curiosity), uncertainty leads to greater possibilities.

Man tends to see the world as definite, finite and obvious. Thus unfamiliar
possibilities are rejected. Hence through Philosophy, the boxed ideas of man are
enlarged. It frees the mind from customs presented us. It free us from the fotress of
the body goods. We get involved in the outer world while we feed our inner soul.

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Enumerate approaches in Legal Theory according to Raymond Wacks.
Descriptive legal theory and Normative Legal theory are the approaches in Legal
Theory according to Raymond Wacks.

Define Descriptive Legal Theory.

Descriptive legal theory is a theory that seeks to explain what the law is and what
would be the consequences of violating the law.

Enumerate types of Legal Theory. Discuss each. (mnemonic: EDC)

The types of legal theory are doctrinal, explanatory and consequential. First,
Doctrinal legal theories are responsive to questions like, "What are the principles
that shape this area of the law?" or "Can these cases be explained by some
underlying theory?". Second, Explanatory legal theories are about why the law is
the way it is. Lastly, Consequential legal theory refers to consequences that will be
produced by a given regime of legal rules

Define Normative Legal Theory.

Normative legal theories are about values. It refers to what the law ought to be by
their nature evaluative

Enumerate the functions of Legal Philosophy according to Roscoe Pound.

(m: GASC)
The functions of legal philosophy according to Roscoe Pound are as follows, first, the
General theory in the legal development, second, Analysis on the law itself. Third,
Supplementary to justify court decisions and lastly, Concepts followed by the courts
and judges.

Yielding a perfect law is a problem of proving to mankind that the law was
something fixed and settled

Philosophy of aw attempts to give a rational account of the law of the time and
place, or attempts to formulate a general theory of the legal order to meet the needs
of some given period of legal development.

Law according to the Philippine Jurisdiction:

Define law according to Lapitan v PCSO.

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Law in its specific and concrete sense is a rule of conduct, just, obligatory,
formulated by legitimate power for common observance and benefit. (Lapitan vs.
PCSO, 60 Official Gazette 6841)

Define law according to Nilo v CA.

Laws shall not have retroactive effect unless therein otherwise provided. Under
Article 4 of the New Civil Code. Well-settled is the principle that while that
legislature has the power to pass retroactive laws which do not impair the
obligation of contracts, or affect injuriously vested rights, it is equally true that
statutes are not to be construed as intended to have a retroactive effect so as to
affect pending proceedings, unless such intent is expressly declared a clearly and
necessary implied from the language of the enactment (Nilo v CA, L-34586, April
1984)

Define law according to Tanada v Tuvera (1985)

On Article 2 of the Civil Code: Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is
otherwise provided, ... The interpretation given by respondent is in accord with this
Court's construction of said article. In a long line of decisions, this Court has ruled
that publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity datefor then the date of
publication is material for determining its date of effectivity, which is the fifteenth
day following its publicationbut not when the law itself provides for the date when
it goes into effect.

Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and proclamations, except
such as have no general applicability; [3] decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or classes of documents
as may be required so to be published by law; and [5] such documents or classes of
documents as the President of the Philippines shall determine from time to time to
have general applicability and legal effect, or which he may authorize so to be
published. ...

The clear object of the abovequoted provision is to give the general public adequate
notice of the various laws which are to regulate their actions and conduct as
citizens. Without such notice and publication, there would be no basis for the
application of the maxim "ignorantia legis non excusat." It would be the height of
injustice to punish or otherwise burden a citizen for the transgression of a law of

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which he had no notice whatsoever, not even a constructive one.

Define law according to Tanada v Tuvera (1986)

Laws must come out in the open in the clear light of the sun instead of skulking in
the shadows with their dark, deep secrets. Mysterious pronouncements and rumored
rules cannot be recognized as binding unless their existence and contents are
confirmed by a valid publication intended to make full disclosure and give proper
notice to the people. The furtive law is like a scabbarded saber that cannot feint
parry or cut unless the naked blade is drawn.

Define law according to the dissenting opinion of Justice Perfecto.

The recital of the undisputed facts of this case shows conclusively to any unscleroid
brains that petitioner is actually being deprived of his liberty without due process of
law. There is absolutely no law which authorizes his detention. There is not any
lawful act from the executive department which decrees the deprivation of
petitioner's liberty. There is absolutely no judicial decision, resolution, order, or
decree issued by a competent tribunal ordering the detention of petitioner.

Process is a writ, warrant, subpoena, or other formal writing issued by authority of

law; also the means of accomplishing an end, including judicial proceedings. (3 Bl.
Com., 279; Gollobitsch vs. Rainbow, 84 Iowa, 567.) The word "process" is also used
as a general term to cover all the written means of compelling a defendant to
appear in court. Under the circumstances, we are of opinion that petitioner enjoys
the absolute constitutional right to be restored to his personal freedom. The
Philippine Constitution provides: No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied the equal
protection of the laws. (Art. III, sec. 1, Constitution of the Philippines.) Petitioner is
deprived of his liberty without due process of law, without any legal process at all.

Define law according to Oliver Wendell Holmes Path of Law, 10 Harvard

Law Review.
The prophesies of what the courts will do in fact, and nothing more pretentious, are
what I mean by the law.

Law is the the witness and external deposit of our mora life.

If one wants to know the law and nothing else, you must look at it as a bad man,
who cares only for the material consequences which such knowledge enables him to
predict, not as a good one, who finds his reasons for conduct, whether inside the law
or outside of it, in vaguer sanctions of conscience.

Define law according to John Austins The Province of Jurisprudence

Determined.

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"A rule laid down for the guidance of an intelligent being by an intelligent being
having power over him."

"A body of rules fixed and enforced by a sovereign political authority."

Jurisprudence is the study of positive law set by political superiors to political

inferiors.
In general, law is a rule for guidance of an intelligent being by an intelligent being
having power over him (The Province of Jurisprudence Determine, Lecture I). Laws
are two sorts: Laws of God (Natural Law or the Law of God) and Laws of Man.
Under the laws of man, laws by political superior in a government independent of
others is known as positive law and positive morality which is rules set and
enforced by mere opinion of an indeterminent body of people with respect to
conduct. Law requires a command and sanction. Rewards create rights but are not
law in the strict sense.

Positive Law, then, flows from a determinate author who is sovereign, to a political
subordinate in subjection to the author, to which is annexed a sanction (eventual
evil), intended to enforce obedience. Determinate authors are Sovereign person(s),
subordinate person(s) politically superior to the one commanded, and subjects
(private persons) in pursuance of legal rights. (Lecture V)

Lecture VI
Every positive law is set by a sovereign person or body to the members of the
independent political society wherein that person or body is sovereign (supreme).

Distinguish a Sovereign from superiority or might. The bulk of the given society are
in a habit of obedience or submission to an independent, determinate, and common
superior. That individual or body (to whom such obedience is given) is not in a habit
of obedience to a determinate human superior.

Since bulk, habit of obedience, and independent are relative terms, the
abstraction of Sovereign or Independent Political Society cannot be precisely
defined. In such cases, the society (including its Sovereign) is a society political and
independent.
If a possible sovereign is in the habit of obedience to another, then that sovereign
(and its subjects) are not independent but rather a limb or member of the greater
society to which it habitually owes obedience.

A society in a state of nature is independent when composed of persons connected

by mutual intercourse, but not in the habit of obedience to a person or body. I.e.
they are not a political society.

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Independent political societies, then, can in some ways be said to live in a state of
nature with one another.

International Law is not positive law. The duties it imposes are only
enforced by moral sanctions, or fear of incurring the wrath of more powerful
sovereign(s).

Neither a weakness, nor occasional obedience to a more powerful sovereign destroys

a societies sovereignty or independence.

Every government, no matter how powerful: renders occasional obedience to

commands of other governments, defers frequently to international law, defers
habitually to the opinions and sentiments of its own subjects (or at least a more or
less defined subset of subjects.) None of these weaken the governments status as
sovereign because it does not habitually obey the commands of another.

A sovereign government may exercise its powers: directly, by delegation to

representative(s) subject to a trust (the trust may be enforced legally (by positive
law), or by moral sanctions (fear that it will offend the community), by delegation to
representatives unconditionally

Austin does not buy the concept of separation of the powers of sovereignty
(executive (including judicial), and legislative), because under any known system,
each distinct party to which those powers may be given also exercise other types of
powers.

Rather, he divides sovereignty into supreme and subordinate. The supreme are
the infinite political powers of the sovereign partly exercised and partly dormant,
but nevertheless existing. The subordinate are those portions of the supreme
powers of sovereignty which are delegated to political subordinates as ministers and
trustees. Therefore, there is no such thing as sovereign: Either the government at
issue is totally subordinate, or It is completely independent, or it is jointly sovereign
with the more powerful, and therefore simply a constituent member of the more
powerful sovereign.

When one government is formed from a union of states:

A Composite State is Formed when the overall government is now obeyed
throughout the old states.
A Supreme Federal Government is formed by the federal union of several
independent political governments which results in the central government
together with the governments of the forming societies being jointly sovereign in

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 each of the forming states and also in the larger society formed. In such case
neither the central nor constituent governments are sovereign and supreme.
A System of Confederated States wherein each state is still truly sovereign,
and the acts of the central government are simply adopted, and enforced by, each
state without creating one single political society.

The power of a Sovereign is incapable of legal limitation, it being a flat

contradiction of terms to say that the positive law eminating from a Sovereign may
limit that Sovereign.

Constitutional law is simply positive morality, or a compound of positive

morality and positive law which fixes the structure of the given government.

Thus, although an act of the sovereign or its constituent members may be

unconstitutional, it cannot be illegal.
Unconstitutional actions of part of the sovereigns agents may be checked by:
Refusal of other agents to enforce the particular act
Refusal of the community to adhere to the act (moral sanction)

Liberty is, therefore, simply those areas which the sovereign has chooses to leave
within the discretion of the individual, realizing that the sovereign may at any time
abridge that liberty at its discretion.

Every supreme government is legally despotic. Whether a given government is

good or bad, free or despotic simply denotes whether we agree with its actions.

Those who divide governments between free and despotic are simply lovers of
democracy. The true distinction is not the power of the government, for they all
truly have complete powers, rather whether it is so constituted as to be beneficial to
the people.

A sovereign is not subject to the civil law, because he would thus be subject to
himself. There are no sovereign rights with respect to the sovereigns relation to
its people. All rights have three parties: The government which sets the right and
enforces it, The ones on whom the right is conferred, The ones who have a relative
duty not to interfere with that right, The proper end of every government is the
happiness of the people, achieving this happiness promotes obedience, which is also
promoted by:
Custom
Prejudices (opinions and sentiments)
Habit

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 The tactic or actual consent of the people is not the true origin or permanence of
government only that they wish to escape a state of nature by living in a
political society and therefore tolerate whatever government exists.

Theory of the social contract is rejected:

1. The rights and duties of the government and governed flow only from the law
of God, positive law, and positive morality.
2. The hypothesis of an original covenant is therefore needless and useless.
3. The covenant would not bind original or following subjects, or original or
following sovereigns since there is no positive law or sovereign to enforce that
contract.
4. Religious rationales would bind both sovereign and subjects without a
covenant, but would not bind following sovereigns or subjects.
5. The extent to which the sovereign would be bound by the opinions or
expectations of its subjects will always be limited by:
The extent (nature and uniformity) of the expectations of the subjects
The degree of clearness or precision with which they conceive the ends in
which their sentiments coincide.
6. The hypothesis has no foundation in fact.
7. All governments have changed or grown.
8. Conquest

Governments de jure and government de facto:

1. De jure and also de facto (lawful, right, just, and being obeyed)
2. De jure, but not de facto (lawful, rightful, or just, but displaced)
3. De facto, but not de jure (unlawful, unrightful, or unjust, but nevertheless
being currently obeyed)
4. Neither de facto nor de jure (not a government at all, but a former
government which one wishes still was)
In respect to positive law, the de jure distinction is without meaning, such
distinction is only appropriate for positive morality.
A sovereign established, is neither lawful nor unlawful with respect to its
positive law, and cannot be said to be legal or illegal. It simply is.

Define law according to St. Thomas Aquinas Summa Theologica.

Law is a certain rule of reason for the purpose of the common good, laid down by
him who is entrusted with the welfare of the community and promulgated.

Define Eternal Law.

Eternal law is identical to the mind of God himself; God stands to the universe
which He creates as a ruler does to a community which he rules; God in its
unchanging, eternal nature.

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Define Divine Law.
Divine law is derived from eternal law; divided into the Old and New Law. In the
Old and New Testaments of the Bible, the former refers to the 10 Commandments;
reaches humans through their capacity for fearlaw promised earthly reward and
the latter refers to the teachings of Jesus; reaches humans by the example of divine
lovepromises heavenly reward.

Define Human Law.

Human law is devised by human reason; directed to the common good; instruments
in the promotion of virtue.

Define Natural Law.

Natural law is inherent in practical reason; inclinations to their proper acts and
ends; good is to be done and evil avoided. **Human laws must conform to this law,
otherwise human law will not be a right law

Define law according to Ciceros De Legibus.

Law is the highest reason implanted in nature, which commands what ought to be
done and forbids the opposite (De Legibus, I, vi)

Law is not a matter of written statutes and lists of regulations but was a matter
deeply ingrained in the human spirit, one that was an integral part of the human
experience. Humans were created by a higher power. Law is whatever promotes
good and avoids evil. Law does not, and cannot begin with men. True law is right
reason in agreement with nature; a universal application, unchanging and
everlasting

Enumerate the schools of thought in Philosophy of of Law.

The schools of thought in Philosophy of of Law are as follows: natural law theory,
legal positivism, legal realism, and legal interpretivism.

Differentiate two schools of thought in Philosophy of of Law.

Natural Law Theory is there is a law inherent in practical reason that is universal
and valid for all men, of all times and places. It forms part of human nature and is
written in the human heart and innate in human beings this is the ability to
rationalize. While, legal Positivism refers Law as a matter of what has been posited
(i.e. ordered, decided, practiced, tolerated). It is defined by social rules, traditions or
customs.

Enumerate the importance of studying Philosophy of Law according to

Emmanuel Fernando.

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