The Relevance of Philosophy to Law - The science of what ought to be done towards making

Philippine Law Journal good laws, combined with the art of doing it.
Emmanuel Q. Fernando
4 basic problem of study of legal system (Joseph Raz)
What is Philosophy? 1. Existence
1. Love of knowledge 2. Identity
2. A rational investigation of certain fundamental 3. Structure
problems about a man and his environment 4. Content
3. A battle against bewitchment of our intelligence by means of
language. What is Integrative Jurisprudence? (Jerome Hall)
Integrative Jurisprudence is an approach of historical
Differentiate Philosophy of Law v. Sociology of Law. or sociological perspective. It provides that law was linked not
Philosophy of law is the nature of ultimate reality. Its only to History and Sociology, but also to Philosophy or Ethics. It
perspective is above or superior to Sociology. On the other hand, takes into account all significant aspect of legal problem.
Sociology of laws purpose is to explain and predict. Its
perspective is outside or alongside of the law. What are the 2 characteristics of Jurisprudence?
1. System of what common to various system
What are the two approaches to Philosophy? 2. Linkage to other discipline.
Method-oriented
Problem-oriented approach
(Rational) approach What are the 2 kinds of perspective to Jurisprudence?
Characteristics of Problem- - Analytical 1. External Perspective
oriented approach: - Conceptual 2. Historical/Sociological perspective
- General (wideness of scope) - Linguistic
- Abstract (intangible; non- What is legal theory?
concrete) Legal Theory is an aspect of Jurisprudence that deals
- Fundamental (foundational; with the specific question what is the nature of law?
building-blocks; stable)
- Controversial (no agreed method What is Philosophy of law?
for determining solution to a Philosophy of Law is a rational inquiry into:
problem (1) Nature of the law, legal reasoning What is law
and other legal phenomena approach
What are the ages of Philosophy? (Jurisprudence) - A conceptual,
1. Metaphysics (What is the nature of ultimate reality) factual and logical
2. Epistemology (Theory of knowledge) analysis
3. Analysis (2) Rational consideration and What law ought to
appraisal of normative issues be approach
Under the age of Epistemology, should a philosopher consult his own related to law, like the obligation - A rational
power of rational insight? to obey the law, the enforcement of justification;
NO. A philosopher is not supposed to consult his own morality, the problems of ideal reasoning thru
powers of rational insight due to inherent limitation of reason is justice, liberty, punishment and opinion or POV
he wanted to know the real nature of the world. The world does the like (Jurisprudence & Legal
not necessarily have to conform to the structure of our grammar. Theory)
*Definition (1) & (2) pertains to Jurisprudence; Definition (1)
What are the limitations/fallback of a rational argument? pertains to Legal Theory. Philosophy of laws scope is narrower;
1. Inherent limitations on pure reasoning Jurisprudences scope is broader.
2. Absence of evidence
3. Misguided logic of their own reason. What are the 3 types of definition?
1. Essentialist Definition real definition/ explanatory
Distinguish Science v. Philosophy 2. Speculative Definition merely proposal or
Science is a first order discipline. It investigates the recommendatory
world directly. On the other hand, Philosophy is a second order 3. Lexical Definition dictionary meaning
discipline. It determines whether the knowledge claims made by
Science is not prone to error. Likewise, it checks whether the What are the parts of a definition?
deductions are logical and if the conclusions are justified. Finally, 1. Definiendum word or phrase to be defined
while scientists experiment and gathers data, philosophers think 2. Definiens the defining phrase
in an armchair.
What are the two (2) requirement for definition to be a true
What is Jurisprudence? definition?
1. Juris law; Prudentia Prudence; careful judgment Its (1) purpose and (2) criterion for logical
that allows someone to avoid danger or risk. correctness must be purely verbal or linguistic.
2. Case law; Supreme Court decisions
3. Judicial decisions which apply or interpret laws and COGITO. ERGO. SUM I think. Therefore. I am.
form part of the legal system of the Philippines (Art. 8, Ren Descartes
NCC)
What is the difference between a philosopher and a lawyer?
What is General or Universal Jurisprudence? (Austin) A philosopher is interested in abstract and ideal law,
General or Universal Jurisprudence means the study while a lawyer is interested in concrete and existing law.
of the principles or notions and distinctions common to various
legal systems, and forming analogies or likeness by which such Why must a law student study philosophy?
systems are allied. 1. To be a better lawyer
2. To be a better human being
What is the distinction between narrow and wide sense of 3. To define the nature of law to apply it in everyday life.
jurisprudence? (Austin)
1. Narrow Sense: Jurisprudence What are the 2 kinds of law?
- WHAT IS LAW 1. Descriptive Law merely describes uniformities or
- The knowledge of law as a science, combined with the art regularities in the world or in nature; May NOT be violated
or practical habit or skill of applying it. (i.e. scientific laws).
2. Wide Sense: Legislation/Censorial Jurisprudence
- WHAT THE LAW OUGHT TO BE 2. Prescriptive Law prescribe a type of behavior which
is supposed to be obeyed; may not be violated.
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2.1 Command Rule of action imposed upon men by
some authority who enforces obedience to it.
2.2 Customary law Any rule of action which is observed
by men and not imposed by some men
1.2 Natural Law Principles of eternal law specific to
human beings.
1.3 Divine Law Law that exists over and above natural law
that guides us to ultimate goal salvation
1.4 Human Law Rules framed by the head of political
community for the common goods of its members.

2.3 Moral law Principle of right and wrong Differentiate just and unjust law

2.4 Practical law Rules for attainment of some practical Just Laws should be followed. It is legally valid. It is a
end (i.e. how to drive a car) real law that promotes common good and have legal authority.
On the other hand, Unjust Laws are without legal
2.5 International law Embodies prescriptive rule which authority, it creates social disorder, it is legally invalid and obliged
govern sovereign states in their relations and conduct to be followed in order to avoid disturbance.
with each other As an example, Orthodox view provides for the complete
nullity of unconstitutional law. When court declare a law to be
2.6 Rules of etiquette Custom which embody inconsistent with the Constitution, the former shall be void and the
conventional rules of social behavior latter shall govern (Par. 2, Art. 7 of NCC). Likewise,
unconstitutional act is not a law; it confers no rights; it imposes no
2.7 Positive law/municipal law (1) Law of the state duties; it affords no protection; it creates no office; it is in legal
which is the product of the reason and will of authorities contemplation as inoperative as though it had never been passed
and regulates the transactions and relations between (Norton v. Shelby).
men and their social life; (2) Law that defines their rights,
duties, civil liabilities, criminal responsibility and 2. FIDELITY TO LAW / INNER MORALITY OF THE LAW
prescribes the remedies for complaining and setting-up (Lon Fuller)
defenses.
Moral lesson to obey the law always exists, and any
2.7.1 Law in particular (i.e. rape) NOT a concern of system necessarily abides to certain moral principles; legal laws
legal theory must be applied prospectively; humans are agent capable of choice.
If moral principles are obeyed, there is no other choice but to obey
2.7.2 Law as a system of Norms (i.e. criminal law, civil the law.
law) concern of legal theory
Exception when laws may be applied retrospectively:
Arguing About Law: 2.1 When the law expressly provides
An Introduction to Legal Philosophy 2.2 When the law is curative or remedial
Andrew Altman 2.3 When the law is procedural (i.e Rules of Court)
2.4 When it is favorable to the accused
Differentiate Positivism and Natural Law
Natural Law Positivism 3. INTERPRETATIVE THEORY / IDEA OF FIT
Legal obligation HAS moral Legal force has NO moral (Ronald Dworkin)
force. force
Legal obligation is explained Law consists of explicitly adopted rules plus the best
Legal obligations essential moral principle that can be understood to lie behind those rules.
in terms of POWER,
ingredients are moral right
COERCION, CONTROL and
and wrong What are the 2 aspects of fit?
RULES
Natural Law Universally Positive Law (a.k.a Human 3.1 Legal Consistency underlying principles that must
valid principles of right and Law [by Aquinas]; rules laid be logically consistent with the rules
wrong down by state. 3.2 Power to help provide a rationale
Overview of Natural Law: Overview of positivism:
1. Thomas Aquinas 1. John Austin According to Dworkins principle, is wiretapping illegal under right
Traditional Version Law as a Command to privacy even though it was not specifically mentioned in US 4 th
2. Lon Fuller Fidelity 2. HLA Hart amendment?
3. Ronald Dworkin Law as Primary and YES. Wiretapping is illegal under right to privacy even
Interpretative Secondary Rules though it was not specifically mentioned in US 4th amendment.
There are two aspects of privacy: (1) physical aspect; and (2)
What is Natural Law Theory? informational aspect. Although there is no physical violation of
Natural Law theory provides that there is a relationship right to privacy, control over personal information that could be
between morality and legal rules laid down by the state and there used to harm other person is against the law if we will scrutinize
are certain universally valid principles of right and wrong rooted it under the MORAL PRINCIPLES.
in the nature of things and knowledgeable by human reason. It
claims that there is a higher law by which goodness law could be Discuss skepticism
determined. Skepticism is the attitude of doubt that what that
requires an individual with questioning minds that what the other
1. TRADITIONAL VERSION (Thomas Aquinas) one is saying is not actually true. The two (2) types of skepticism
are:
3.1 External Skepticism There is no right answer to a
Decisions in hard cases moral or legal question
in which the law does not have an a clear answer 3.2 Internal Skepticism Law is so riddled that there is
requires moral judgment no right interpretation of what the law is.
Ronald Dworkin
The universe is governed by a single, self-consistent & What is Legal Positivism?
overarching system of law, and the entire system is under the Legal Positivism is an approach in understanding the
direction and authority of supreme law giver and judge GOD. positive law that rejects the necessary link between positive law
According to him, Human law occupies the lower system tier of the and morality.
system.
1. LAW AS A COMMAND (John Austin)
System of law, according to hierarchy:
1.1 Eternal Law Principle of action and motion that Laws are laid down by superiors to guide actions of those
God implanted in things in order to enable them to under them. And since laws are species of command, there are (1)
perform their function. a duty and (2) consequence of non-performance.

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Is violating a law without a punishment degrades that law? 3 Models to characterize law
NO. Although there is no punishment for violating
positive morality, people in general have a low opinion of anyone 1. Coercive model (classical) John Austin; Bad mans POV
who does not violate them. Therefore, even though there is no 2. Game model HLA Hart ; Laws are voluntary and not
punishment, the law is not degraded. compelled; Determining the rules of the game is one thing,
determining if the game is worth playing is another
Discuss sovereignty in terms of John Austins Theory 3. Belief-based model Hans Kelsen; strongest form of
Sovereignty is the supreme and uncontrollable power positivism
inherent in a State by which that State is governed. Sovereign is
defined solely in terms of power, not in terms of justice or any 2 Basic claims of Legal System:
other moral concept. It is merely a LEGAL and not a MORAL one.
1. That the context of the law is just;
The existence of law is one thing; 2. That the sanctions for breaking the law are just, even if the
Its merit or demerit is another. context of the law is not just
John Austin

Discuss the difference between Medieval and Modern Society.

Medieval Society Modern Society
Aquinas developed Natural Austin developed positivism
Law theory
Dominated by a single church Fragmented into completing
& single value system creeds & conflicting ideas
about justice and goodness.

2. LAW AS PRIMARY AND SECONDARY RULES

(HLA Hart )

A person has an obligation

when a certain rules applies to them.
HLA Hart

Law does not merely command, but empower

individuals to do things that would otherwise be impossible to do
without laws. Legal rules (i.e Obligations and Contracts) that
empower individuals are called power-conferring rules.

When does rules exist?

Rules exist when people generally:

2.1 Act in a certain way (External, which involved outward
behavior).
2.2 Regard deviations from that way of acting as something to be
criticized (Internal, which involves attitude of the people)

Legal System is a system that brings together both primary and

secondary law.

1. Primary Rules rules imposing obligations

2. Secondary Rules could not exist without primary rules
2.1 Rule that singles out rules that actually imposes
obligations
2.2 Rules that specify how legally valid rules be changed
2.3 Rules that empower specific individuals to apply
societies legally valid rules.

Making Sense of Modern Jurisprudence:

The Paradox of Positivism & the Challenge for Natural Law
Phillip Soper

3 Context of Jurisprudence:
1. The Study of law
2. The Science of law (i.e. analytical jurisprudence explores
the basic meaning of legal concept)
3. The Nature of Law/ Legal Theory/ Maze of Metaphysics
(I.e. revolves around the question what is law and positivist
v. natural law)

Two dimensions of legal theory:

(1) Perspective (2)
[Dimension/
Inquiry into the Goal of the Study
Audience]
nature of law
Insiders POV Motivated by To know about specific
citizen, lawyer, application of details of what is the
judge, or other legal norms; case and what I
legal officers what is law ought to do
Outsiders POV
Knowledge about
Sociologist or Disinterested and
reality and differences
legal detached;
in legal systems
philosopher

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