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Philosophy and Theory of Law

From the book of Bernardo


Lawyers and philosophers can be counted among the most

misunderstood species. Many lawyers are miscreants who
supposedly murder the truth, who twit the law, who defend the
sum of society, and who are good in torturing the English
language. See how society judges lawyers as morally
compromised, tempted, or hunted beings: from the classic To
Kill a Mokingbird, to John Grisham flicks, to the series The
Practice and Suits, to The Exorcism of Emily Rose.

Law – Connotes binding communal rules – the do’s and the

Postmodernists say that law is just a self-aggrandized
– A rule of conduct, just, obligatory, formulated by
construct that perpetuates itself by citation after citation of legitimate power for common observance and benefit.
maxims. If it lives by citation, it would die by non-citation. Even
if we need
Classification of Law:
1. Jural or human law – refers to sanctioned or enacted
law such as statutes, case laws, normative rules, and
As society advances, must law also advance to become more percepts.
2. Non-jural or meta-lega law – is not anchored on
complex and intrusive?
human promulgation, such as divine law, natural, and
physical law.
The answer will depend on the political tendencies o the law.
The SWocialist party-line is “statism”: more State intervention Classical Elements of Law:
and welfare systems to have an equal and stable society and 1. Reasonable ordinance (rationis ordination) – Law is
economy. The state, in order to carefully plan society, must a reule of human acs, commanding man to act or
through law spread its hold from womb to tomb. refrain from acting. The Measure of human acts is
human reason, for it is by reason that we perceive and
put order into things. A reasonable law is necessary,
useful, clear in expression, and adapted to place and
time. The people are moved to follow the law when it
Should lawyers at the philosopher’s stone?
is reasonable. If the law is unreasonable, it would only
invite define and dissent.
The practice of law an itself be a practice of philosophy.
“Jurisprudence,” often associated with “case law,” in fact means 2. The Common Good (bonus communis)- Principles of
the theory and study of law. From the Latin juris and prudentia basic humanity transformed once purely ethical
or the “prudence of law” or “practical knowledge of the law,” norms into legal claims. This does not mean that all
jurisprudence is supposed to explain the nature, theory and ethical norms should be law, but only those rules
development, and objective of a law. It is to know the wisdom concerning man with his fellow man. The common
good need not be the utilitarian ethic of the “greatest
behind the law. Through jurisprudence, a law earns more
happiness for the greatest number.” Rather, it is the
credulity and force, as one understand not only the what of the good of everyone. It bears the common aspirations of
law, but the how and why of it. all, not just the majority. As Aquinas suggested, the
lawmaker should frame the law according to how the
subject matter commonly occurs in the majority of
instances. It is not expected that the legislator should
What distinguishes an explanation or ratio of a case and an assume every single case possible, but should leave
exposition of legal philosophy in a case is that the latter room for exceptions when the law need not be strictly
explain the underlying concepts, theory, and evolution of a legal applied.
3. Promulgation – The final step in the law-making
process is its notice to the public. The public should be
able to take notice of the law, whether by publication
or by hear yeas as a matter of due process.

4. Legitimate Authority – Due promulgation must come

from a competent authority, not from some private
individual or public official unauthorized to enact a
law. Law must be issued by one who takes charge of

the community, who wiled the power to promote the

common interest.
Philosophy and Theory of Law
From the book of Bernardo
How does one become a legal authority and is authorized to
make laws?
Modern Standards for the Rule of Law - According to Max Weber, in Politics and a Vocation,
there are three (3) ways how authority is
The “Eight Routes of Failure” for any legal system by Lon Fuller: establishes itself in society: CHARISMA,
1. The lack of definite rules or law, so that disputes have TRADITION, and LAW.
to be decide ad hoc. a. CHARISMA – the personal ascendancy that an
2. Failure to publicize or make known to the affected individual gains in society through his passion
party the rules. and determination for a cause or a mission, and
3. Unclear or obscure legislation. his success gives him an aura of legitimacy.
4. Retroactive legislation. b. TRADITION – is where the authority from a
5. Contradictions in the law. leader, due to his magnanimity or extent of
6. Demands that are beyond the power of affected influence in a society, is passed on his successors
parties to observe. of heirs. Society has made the leader its center
7. Unstable legislation or frequent changes in the law. and identity, and will want to keep him alive
8. Discrepancies between adjudication/administration through his descendants who suppose to bear his
and legislation. qualities.
c. LAW – though legal dominion is impersonal. The
What constitutes “rule of law” in the modern international officers operate through institutions, under given
arena, according to United Nations: terms, periods, and conditions. Laws are
The rule of law refer to a principle of governance in legitimate if they are enacted according to rules
which all persons, institutions and entities, public and private, or procedure and individual merit.
including the State itself, are accountable to laws that are
publicly promulgated, equally enforced and independently Enforcing Law
adjudicated, and which are consistent with international human Should Law be coercive to be enforceable? Can rough laws
right norms and standards. spare the rod?
Anarchists think that any form of violence or coercion
is wrong and offends morality; that the only real law must be
Species of Human Law consensual, which appeals to the conscience and free will of
1. As to whether a right or a procedure is given: constituents, not to threaten of punishment.
2. Substantive Law – establishes rights, duties, and For followers of Confucius, the ingredients to
corollary prohibitions. prevent and arrest crimes are not stern punishments but a sense
3. Remedial or Procedural or Adjective Law – of shame for misbehaviour, cultivation of virtue, education on
prescribes the manner of administering, enforcing, right and wrong, respect for authority, and the elderly showing of
and appealing, amending, and using legal rights and good examples.
claims. Social contact theorists think that constraint is
necessary and moral, since society is presumed to have given
2. As to scope: consent to follow the law in establishing a Constitution and a Big
1. Public or Political Law – concerned with the struts of Brother – State. Through election and suffrage, citizens are
government, the relationship between the individual able to renew their consent and to amend the terms through the
and the State. representatives they vote for. Anyone who does not wish to
2. Private – concerned with the rules governing the follow the law can opt to leave the State, be a fugitive, and live in
relationship of individuals. a lawless society, if there is any. Shape up or ship out.
3. Criminal – violation of public order through The psychologist, Sigmund Freud observed that
punishable acts or omissions reward and punishment are needed for discipline; the way a child
4. Civil – the rules of civility such as on the property, needs to be trained, so does society. The machinery of regular
marriage, succession, contracts and torts or private enforcement, police presence, etc.
wrongs that result in damages. Under international law, states are tempered from
5. Mercantile – deals with artificial personalities such as using force against each other since every member of the
corporations and the management of business; that international community is by principle given equal status and
which regulates commercial transactions. consideration in domestic policies. States are presumed to be
civilized, matures, self-determining, and independent.
Civil Code System – refers to a legal system based on coded
laws. Laws are codified through parliamentary statutes,
following the tradition of compiling rules. Law and Mores
What is legal is not necessarily moral and what is moral is not
Common Law System – is based on case law or judge-made law necessarily legal. A moral obligation does not establish a
that relies on precedents set by judges in a court case. juridical or legally enforceable tie, still, there is a relation
recognized by law itself between law and morality. In fact, moral
Islamic law or Sharia law (“the way to follow”) – is based on the customs are among the sources of law.
moral precepts of Islam.
According to Tolentitno, “laws and morals have a common
ethical basis and spring from the same source – the SOCIAL
Main Issues in Law CONSCIENCE.

Law, Authority, and Force

Philosophy and Theory of Law
From the book of Bernardo
A contractual obligation is considered void when it has an
illicit cause. It is illicit if contrary not just to law, but also to The Blindfold of Justice
“morals, good customs, public order and public policy.”  A theory of Justice, John Rawls proposed that we should
do a “reflective equilibrium” whenever we make laws
or decisions.
Religious/Sectarian vis-à-vis Secular/Public Morality
By morality, there is distinction between SECULAR morality and
RELIGIOUS morality.


1. In States where there is no separation between Church
and State, the law must reflect what is considered
moral by the established religion. For states that LEGAL THEORIES
follow the non-establishment clause, a secular Legal Theory is an inquiry into the nature of law.
morality known as “public morals” are considerations When one develop a legal thesis, or write arguments or opinion, it
of the law. It is a morality not based on religion but on is important to know from what theory one is dissecting a
popular ideals, source of law, and common aspirations question of law.
as expressed in policies. Obedience to the law is
itself and Secular Morality. 1. The Teleological or Natural Law Theory
2. Religious morality concerned with private matters - Looks into the principles, purpose, and end (telos)
and preferences, such as sexuality and the censorship of law. It goes to the question of the why of the law.
of ideas and beliefs, while Secular morality concerns - Law serves a higher universal order based on a
itself with public order and affairs. “natural order,” which we can discover through our
3. Religious morality’s ultimate basis is the word of common human reason and validated by human
God as expressed though a sacred medium, while experience.
Secular morality is associated with “natural law - Natural law is an example of “normative
morality” according to common-held principles of jurisprudence,” which evaluates the purposes or
reason, justice, and equity, deemed as “natural” norms behind the law. According to natural law, nature
aspirations of men. is how people normally behave and is expected to
behave. Human nature, in particular, is rational.
- Finnis wrote that there are seven (7) “basic goods”
Law, Justice and Equality natural to man: life, knowledge, play, aesthetic
 Justice is “equality in proportion,” to render to each what experience, sociability (friendship), practical
is due. Justice to give what one deserves according to the reasonableness, and religion (transcendence).
same standard, measure, or formula.
 On the basis of the same standard, provisions will not be 2. The Positivist Theory
equal if the circumstances are not equal, but must be equal if - Life itself has rules, and we call them law. We
the circumstances are the same. This is referred to “legal or follow the law because it is the law, period. This is
formal equality.” what the positivist school maintains. The rules
 This is where reasonable classification comes in. Everyone themselves make the cut.
classified to the same category is to be treated the same - Positivists are positive on what the law “posits” by the
way. Like shall be treated alike. Equality does not have to authority given to the State or by socially accepted
mean same treatment, but “proportionate treatment.” rules. Also known as “the command theory,”
positivism highlights obedience to the content and
expression of the law with the adage “dura lex, sed
Egalitarianism lex” (the law may be hard, but that is the law) and
 The statement that “all men are born equal” refers to “quad principi placuit legis habet vigorem”
one’s humanity, meaning, we are all equal in terms of being (whatever pleases the prince hs the force of law)
human, and the rights pertaining to the fact of being - David Hume argued that we cannot demonstrate on
human, regardless or status. what the law should be, but on the facts on what the
 This does not mean that all men are born in equal condition law is (“social fact thesis”). We argue on legal, not on
and will live equally. Special arrangements, however, may moral issues.
be made to eliminate or minimize historical or cultural - Hart of the Law: For Hart, law is system of “social
disadvantages resulting from conditions that we do not rules.” The regime of unofficial rules has three
have choices, such s gender, being born to poverty, defects: first, doubts arose as to the precise scope of the
handicaps, race, religion, or color. rules s there was no authoritative reference, such as
 Equality before the law is a universal enfranchisement so through a declaration of text; second, the static
that everyone will at least have the “equal chance” to traditional character of the rules as there were no
develop as any other human will do. Life is not fair means to deliberately abrogate defunct customary
indeed, but since man, despite the inequities of life, rules; and third, the absence of an official and
aspires for fairness and a more just society, he must consistent monopoly of sanctions.
make equality a goal.
 That “men are created equal” means “equal with certain 3. The Interpretivist or Constructivist Theory
unalienable rights, among which are life, liberty, and the - What the law means is what the judges of the law
pursuit of happiness.” would read it to mean.

- As conceived by Ronald Dworkin – points that the

law is more than explicitly adopted rules. It has merits
Philosophy and Theory of Law
From the book of Bernardo
or principles behind them that can be “interpreted” or healthy organism so that each one’s different pursuits
“construed” by the courts. are good to the whole society.
- Jurisprudence assumes an abstract foundation. - The approach justifies “judicial activism” and
- There are two (2) dimensions of legal interpretation: “judicial legislation” and is related to the Realist
Formal dimension looks for logical consistency Theory.
between principles and past decisions; Substantive
dimension looks for principles that best “explain” or 3. The Economic Approach
“justify” the law, which is construed as having a moral - Judge Richard Posner: took the lead in “economic
rights-base dimension. It is the “integrity of the law” jurisprudence” and “consequentialism,” For him,
that entitles it to a claim to out obedience. the purpose of the law is to increase the balance of
happiness in society through “wealth
4. The Get-Real Theory maximization.”
- Sometimes labelled as “pragmatic jurisprudence,” - Law appropriately take its cue from economics and
focuses on these human realties that are often plays a larger role in modern legal system.
overlook by hard law, technicalities, and abstract
policies. 4. Forms-and-Fundamentals Approach
- It tells the law and law practitioner to get real – if law - Legal formalism or conceptualism holds that the law
reflects practical experience. is a strict science governed by formal axioms, legal
- Justice Oliver Homes Jr. was an avowed proponent of principles, and rules of logic.
legal realism. He argues on “the bad man model,” - Formalism is also referred to as “textualism” or the
that in crafting a law or deciding always think from the “plain meaning” approach to the law and
perspective of the bad man, not the good man as the “originalism” or the “original meaning” approach to
bad man, at the end of the day, cares only for the the Constitution. Thus, when the meaning of the law is
consequences of the law, of what the courts will do to not clear, the Court may call the assistance of an
him, and the rest are irrelevant. amicus curiae, an expert of the law, to expose the real
- Law is determined by the actual practices of courts, law intent of the law.
officers, law enforcers; by real word practice. Human - Formalism adheres to ethical constraints on a judge
factors and realities are unavoidable in hard cases, and from deciding or opining on what the law should be or
judges must be able to take these into consideration. should mean other than what the law says or does not
5. The Critical Theory - Originalism says that judge should only “interpret”
- The main tenet of this theory is that the law has been not “construct.’
the means to enshrine and coercively impose the -
wishes of the dominant group or institutions. 5. Practice Theory
- Questions the law’s assumptions, such as the - Philip Bobbit, wrote that the different approaches to
assumption that the people are fee, and that the law, or modalities, have their own uses. One should
market is free. know how and when to use them in making
- It is associated with subversives as it aims for arguments.
“deconstruction” of the law and used the - The adoption of a particular mode leads to a different
“hermeneutics of suspicion” to advance outcome or case opinion. Each mode has its own
marginalized causes. “grammar” and its own “logic.”


1. The One-Upon-a-Time Approach

- The law is not simply made; it is in the making. It
rolls a story stuck in real events.
- The historical school holds that the law has a past and a
progression. It develops in a gradual and evolutionary
process and cannot be separated from its national or
indigenous character – from clannish, to folk beliefs, to
landmark events that shaped a nation.
- Law operates in a specific language, impressed by
cultural beliefs, traditions, customs, temperaments,
and the common experiences and consciousness
(geist) of a people. The law is therefore the product of
a national genius.

2. The Functional or Sociological Approach

- The law is both a means of social control an social
- The sociological school looks into law as a measure
for behavioural conformity and social engineering.

- The theory is call “functional” by analogy to biology,

where every cell has different functions to maintain a