Readings in Legal Philosophy and Theory (Text and Comments from Plato to McDougal) JORGE R. COQUIA AB, LL. B., LL. M., S.5.D.ki Philippine Copysight, 2005 by JORGE R. COQUIA ISBN-971-23-4195-X No portion of this book may be copied or ropro- duced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in dif- ferent electronic devices or in any other form, for dis- tribution or sale, without the written permission of the author, except brief passages in books, articles, reviews or legal pleadings and in judicial or other official proceedings with proper citation. Any copy of this book without the correspond- ing number and the signature of the author on this age either proceeds from an illegitimate source or is in possession of one wh lias wo authority to dispose of the same. ALL Ril RESERVED BY THE-AUTHOR swim ain oa No. ISON 971-23-4195-x | 9789712434195 REX printing Company, inc. _ypoquepy & cache ihogeaphy 248 Pom Cv cy Tan aungi Tata PREFACE ‘Teaching legal philosophy, legal theory and jurisprudence has been a difficult and challenging task. This writer, who is teaching ‘the courses in several law schools for over twenty years and six years in the graduate schoo! has experionced this dauntless task. How to create the interest in the subjects among students is the first chal- lenge. Legal philosophy, legal theory or jurisprudence are not bar subjects. They do nothave a direct relation with the so-called “bread and butter” subjects an aspiring lawyer wants to know in order to enter a profitable practice of law. ‘The main problem of teaching the subjectis the heavy reading materials the students are expected to read and comprehend. The subjects are composed of the writings of Greek philosophers Plato and Aristotle, Roman jurist Cicero, the medieval philosophers St. Augustine, Thomas Aquinas and modern philosopher Emmanuel ‘Kant, John Austin, Hans Kelsen which may not be fully understood in one or two readings. Even the lighter writings of Oliver Wondel Holmes, Roscoe Pound, Lasswell and McDougal are not easy readings. What is more, the original texts and materials are not easily available to moat students. With the exception of Crisolite Pazeual’s ook Introduction to Legal Philosphy and Leonardo Mercado, 8.V.D., Legal Philosophy most ofthe materials are found in foreign publica- tions not easily available. The cost of acquiring these foreign mate- rials is quite excessive. ‘This work is an attempt to put together in one book the ex- corpts of the writings of the major legal philosophers and analysis and comments of contemporary Philosophers such as of Del Vecchio's, Philosophy of Law, Paton’s Textbook of Jurisprudence, Rommen's Natural Law, Cairns’ Legal Philosophy from Plato to Hegel and vari- ous legal articles. Included in this book is the Communist theory of law which is still followed in many Socialist States. ‘Added in this book are the modorn logal writings of George Hugh Smith on Natural Leno, Horbert Lionel Hart on Legal Positiv- ism, John Rawls on the Sociological School. About three of the original writings are not available hence, the secondary source from Cairns’ book aro reproduced. To aid the stadont in understanding the school of philosophy guide questions are placed after each chapter in class discussion with the professors. i‘The author expresses his gratitude to Mr. Juanito Fontelera of ‘the Rex Book Store and Printing Press for publishing this book. Acknowledgments are due to Christopher A, Pasuguin who meticu- ously proofread the text and, Ms. Maricar I. Lavarias for the design for the art cover of the book. Jorge R. Coquia TABLE OF CONTENTS: PREFACE...... Chapter 1 INTRODUCTORY CHAPTER Definition, Nature and Function... . Function of Philosophy of Law and Jurisprudence.. Chapter IT HISTORY OF PHILOSOPHY OF LAW Ancient Greek Logal Philosophy Ancient Roman Legal Philosophy ‘The Legel Philosophy of tho Medieval Era. ‘The Legal Philosophy in the Renaissance .. Questions in Chapters I and Tl Chapter I ‘THE HISTORICAL SCHOOL Savigny, Of the Vocation of our Age far Legislation and Turisprudence.. Comments by Paton . Questions Chapter IV SEMINAL CONCEPTS (Philosophical Approack) Plato, The Republic... Comments on Plato by Cairns Aristotle, Polities