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CHAPTER ONE:

ISSUES IN THE PHILOSOPHY OF LAW


Prof. Emmanuel Fernando, DPhil

This book aims primarily to arrive at a general, systematic, and comprehensive understanding of the
nature of legal reasoning. As such, it tangentially concerns itself with related abstract conceptual
questions about the nature of law and of legal systems, normative questions about the relation of law,
politics, society and morality, and the explanation and justification of various legal institutions as well
as of legal doctrines. Issues, however, in legal reasoning, such as deduction, analogy, precedent, and
the like, remain as the primary consideration

The main methods of study to be used are conceptual analysis and rational justification.
CONCEPTUAL ANALYSIS involves nothing but a logical inquiry about concepts.1 It is a technical
philosophical skill and activity, the importance or relevance of which has often been underestimated,
taken for granted, or misunderstood. In doing analysis, any legal philosopher will be engaged in
providing an account of what is significant or distinctive about law, legal reasoning, and other legal
concepts and doctrines. Thus, he will endeavor to differentiate law as a system of norms from other
systems of norms, such as ethical systems, systems of norms governing fashion, etiquette and the like.
He will also differentiate legal reasoning from other kinds of reasoning. He will engage in the
enterprise to explain what is important, essential or salient about law and legal reasoning, and in so
doing will clarify or make explicit what the phenomenon of law is and what the concept of law means.

RATIONAL JUSTIFICATION, on the other hand, is a skill which is neither technical nor
intrinsically philosophical in character. Rather it is an activity engaged in by the layman in
everyday normal intellectual pursuits or conversation. In a broad sense, it is merely the practice of
supporting by means of reasons one’s opinion or point of view. With reference to the philosophy of
law, it is the practice of supporting by means of reasons one’s normative, evaluative or substantive
conclusions concerning issues or conclusions about the issues, major or minor, in such a topic. For
example, a theorist may provide an ideal account of justice or an ideal theory of punishment. This
requires rational justification, or providing good, sound or cogent reasons for one’s conclusions. It
presupposes that normative debate is not arbitrary or a matter of choice or taste, but that sound reasons
can be given in support of the ideal account or theory.

A complete course in the philosophy of law covers not just law but a variety of areas or issues within
and related to law. It includes within its scope an inquiry into or investigation of the following related
topics: (i.) the nature of law, (ii.) the nature of legal reasoning, (iii.) the moral obligation to obey the
law, (iv.) the relation between law and morality and, in particular, the issue of the enforcement of
morality, (v.) theories of responsibility and punishment; (vi.) specific legal concepts and doctrines,
and, finally, (vii.) background philosophical issues. Indeed legal philosophy is situated within value
theory, as an integral part of political philosophy. Although this book, ultimately, is concerned about
the second topic, it is instructive to first examine and understand the different areas or issues within
the philosophy of law.

I. THE NATURE OF LAW OR LEGAL THEORY

1
Anthony Flew, Philosophy: An Introduction, p. 7, 1979.
The nature of law is the focus of legal theory. There have been, throughout the history of the
philosophy of law, numerous descriptions or explanations of the phenomenon. Each of these
descriptions or explanations attempts to account for what the law is, what its roles and functions are,
what its relation to man and society is in a way that captures its most salient or significant features.
Austin lectured that legal theory or “general or universal jurisprudence” is concerned with “the study
of the principles notions and distinctions common to various legal systems, and forming analogies or
likenesses by which such systems are allied.”2

The law that legal theory attempts to describe, analyze, and explain is a complex social phenomenon
and practice. Hence, any theory, for it to be satisfactory, must abstract from this complexity a
particular or set of features deemed to be key or essential. This follows from the Weberian insight that
reality, or a slice of it in the form of a complex phenomenon, is both extensively and intensively
infinite. 3 Its manifestations or instances are limitless in number and variety; similarly a single
manifestation can be viewed from innumerable perspectives. No theorist can observe and survey,
much less, know the law completely; neither can any description hope to capture all its complexity.
Inevitably choices have to be made, as to which of the law’s varied and innumerable features are
central or significant and as to which are insignificant.

It is not surprising therefore that various legal theories have formulated their own characterization of
law, each of which takes a specific feature or features to be of central significance. Cicero, for example,
mandated that law be based on “right reason in accordance with nature.” St. Thomas Aquinas
considered law to be an ordinance of reason for the common good promulgated by him who has
authority. Locke took law to be a product of a social contract preserving natural rights. Austin defined
law as the general command of the sovereign. Savigny took law to be a product of the common
consciousness or spirit of the people. Ehrlich depicted law as an inner order of human associations.
Holmes meant by law “the prophecies of what the courts will do in fact, and nothing more
pretentious.” Frank attacked the common conception of law as a collection of abstract rules, stressing
its uncertainty and unpredictability. Olivecrona saw law as mere words which are links in a chain of
physical causation, producing certain courses of human behavior on the part of human beings. Pound
considered law as a kind of social engineering which aims to make the goods of existence and the
means of satisfying claims go round as far as possible with the least friction and waste. Kelsen viewed
law a hierarchical system of coercive norms. Fuller saw law as a purposive enterprise for subjecting
human conduct to the governance of rules. Hart depicted law as the union of primary and secondary
rules. Raz took law to be a social fact and looked at law as a legal system, whose most general and
important features are that it is normative, institutionalized, and coercive. Watson defined the
essential function of a legal process as that of resolving actual or potential disputes, with the specific
object of inhibiting further unregulated conflict. Dworkin considered law to include not only rules but
also unpedigreed principles, stressed the argumentative character of legal practice, and posited that
the most significant feature of law is its integrity in response to the central question concerning the
force of law. Critical Legal Theorists debunked law as being based on an inconsistent and incoherent
ideology. Feminists made use of the Critical Legal Theorist insight into the ideological character of
law to expose its gender bias.

These descriptions stress different salient features of law. Thus law has been characterized variously
as rational, objective, protective of natural rights, coercive, authoritative, voluntary, based on common

2
John L. Austin, “The Uses and Study of Jurisprudence,” The Province of Jurisprudence Determined, 1954, p. 365,
with an “Introduction” by H.L.A. Hart.
3
Max Weber, Max Weber on the Methodology of the Social Sciences, E. Shils and H. Finch, eds., 1949, p. 72.

2
consciousness or spirit, social, predictive, formal, hierarchical, processual, normative, sociological,
functional, abstract, psychological, uncertain and inconsistent, argumentative, ideological, gender-
biased, to mention but a few. Consequently, the answer to the question “what is law?” must somehow
take into account this diversity of descriptions, and select which among them provides the correct or
ideal characterization of law.

A. The Two Functions of Law

It is a legal truism that there are two main functions of law. First, LAW GUIDES HUMAN
BEHAVIOR. It informs people as to how to behave so as to avoid going to jail or being punished.
But it does not do simply this. It allows people to realize or accomplish certain goals or aims so as
better to plan and live their lives, and coordinate their actions with others.

For example, a father intends to ensure that the money he earns goes to his children upon his death.
Consequently, he draws up a will. There are legal formalities to a valid will. These he must comply
with in order to ensure that his wishes be followed, that the correct inheritance goes to the assigned
child. But this is not all. He may also want to sell property, to form a corporation, to remarry, and
the like. In all of these activities, the law serves to guide to him as to what to do in order to fulfill his
wishes and protect his interests.

The second main function of law is that it RESOLVES DISPUTES. Law, through the institution of
courts, responds to society’s need for an acceptable mechanism or procedure with which to resolve
disputes. In any society, people interact and inevitably their interests conflict. In many instances,
each side to the conflict feels, not unreasonably, that his claim is the right one; moreover, the interests
involved may be so vital and important that either side may resort to whatever means, including
violence, to secure those interests. There is a need then for a dispute-resolving mechanism, the law
and the courts, if only to minimize violence or prevent that violence from reaching such proportions
as to destroy any possibility of a stable and orderly community existence.

This is where the law and the courts step in, to prevent the unpleasantness or acrimoniousness of these
disputes from reaching such dangerous proportions of disorder or violence that peace and order are
visibly threatened. Law stands as a neutral arbiter to ensure that the dispute be settled peacefully,
amicably, and agreeably, in a way that both sides will come to accept.

For a normative system to be considered legal, it must at the very least fulfill these two basic functions.
Any theory of law therefore must be able to account for these two functions of law. In Raz’ terms,
law “is a system of guidance and adjudication claiming supreme authority within a certain society and
therefore where efficacious, also enjoying such effective authority.”4

B. The Two Manifestations of Law

There are two manifestations of law, as a SOCIAL PHENOMENON and as a LINGUISTIC


ENTITY. The social sciences look at law as a social phenomenon. Law affects human behavior in

4
Joseph Raz, “Legal Positivism and the Sources of Law,” The Authority of Law, 1979, p. 43. In another article, he
was more specific. The four primary functions of law included: (a) preventing undesirable behavior and securing
desirable behavior; (b) providing facilities for private arrangements between individuals; (c) the provision of services
and the distribution of goods; and (d) settling unregulated disputes.” “The Functions of Law,” The Authority of Law,
pp. 169-172.

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society and plays an integral part in every man’s life and decisions in that society. Any theory of
law must therefore account for law as a social phenomenon.

However, the way law will be studied in this course is as a linguistic entity. This is the law which is
studied by law students in law colleges, unlike the law, for example, which is studied in sociology
courses, which is law as a social phenomenon. This is the law, in other words, which we will attempt
to understand and comprehend.

As LINGUISTIC ENTITIES, laws or legal norms have sense. Law comprises a set or system of
rules and standards which communicate meaning or content. This meaning or content of law, the law
student must learn and fairly be acquainted with in order to graduate from law school, pass the bar
exams, and practice his profession proficiently. He must acquire a sound grasp and understanding of
the law’s content so that he will be enabled to explain its meaning to his prospective clients who may
come to him for advice.

C. The Two Kinds of Jurisprudence

There are two kinds of jurisprudence, DESCRIPTIVE and NORMATIVE OR PRESCRIPTIVE.


Descriptive jurisprudence merely states or elucidates what the law is. This is the concern of the law
student, the lawyer and the judge. The law student answers his test question in terms of the actual
state of the law. The lawyer advises his clients by explaining to him what the law exactly means. And
a judge, when he is to decide a case, is simply to interpret and apply the law as it has been formulated.
He is not to reform or reinterpret it to make better or just law. The dispute must be decided in
accordance with what the law is and not what it ideally should or ought to be.

On the other hand, normative or prescriptive jurisprudence is the concern of the ordinary citizen
and the legislator. The ordinary citizen wants to live in a society with the best set of laws. So, if he
is socially conscious, he would be engaged in constantly scrutinizing and criticizing the law in order
to find more suitable ones; and he may even importune his congressman to draft new laws so as to
reform or improve those areas of law where he has found deficiencies.

It is the task of the legislator to arrive at the best law possible, the law most suited to the needs and
problems of his society. He is constantly examining the times and looking at areas which can be
improved or needs which can be attended to. He then enacts legislation so as to improve those areas
or meet those needs. Ultimately, he must be in tune with society so as to be aware of its most important
problems and also must be knowledgeable of the law as an instrument which can be used to address
these problems. Armed with that frame of mind and knowledge, he is ready to enact new legislation
that will meet the needs and problems of the times.

D. The Two Kinds of Law

The two main kinds of law are classified as descriptive laws and prescriptive laws. Unfortunately,
the same term “law” is used to refer to both of them. A descriptive law, as its name suggests, merely
describes uniformities or regularities in the world or in nature. It is merely a statement of how
events, as a matter of fact, regularly do happen. Moreover, such laws cannot be violated. Being mere
descriptions of uniformities, when the phenomena being described does not conform to the descriptive
law, it merely means that the law has been incorrectly framed or formulated. The law must then be
suitably amended to take account of this anomaly and to arrive at a more accurate description of the

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phenomena being described. Finally, the relation between one event and the succeeding event which
is indicative of the regularity expressed by the law is one of causality or cause-and-effect. Scientific
laws, which are merely expressions of the uniformities of science, provide the best example of
descriptive laws. Even the so-called Eternal Law of St. Thomas Aquinas,5 if indeed such a law exists,
is descriptive in character. The Eternal Law is God’s providential law, which mandates order and
harmony for the entire universe.

Prescriptive laws, on the other hand, do not describe but prescribe a type of behavior which is
supposed to be obeyed. They are propositions which require the doing of or abstaining from certain
actions. Therefore, unlike a descriptive law, a prescriptive law may be violated, for an individual may
choose to refrain from conforming to the law. Moreover, if it is violated, this does not mean that the
law has been incorrectly formulated, thus requiring amendment. Rather it renders the violator subject
to some form of sanction. Finally, the relation of imputation 6 and not causality exists, since the
connection between the violation of the law and the corresponding sanction or punishment is a
product of the will, human or otherwise, and not due to cause-and-effect.

Examples of prescriptive laws abound. A command is prescriptive in the sense that it is a rule of action
imposed upon men by some authoritative person who enforces obedience or demands compliance to
it. A customary law, being any rule of action which is observed by men and not imposed by some
authority, in so far as it obligates, also prescribes. So do rules of etiquette or fashion, as aspects of
custom embodying conventional rules of social behavior, govern men’s actions and require them to
act in accordance with these rules. Moral laws, embodying ethical principles of good or bad or right
or wrong, and practical rules, which provide directions for the attainment or accomplishment of some
practical end or purpose like instructions on how to drive a car or operate a computer, both prescribe.
International law embodies prescriptive rules which govern sovereign states as well as international
corporations and agencies in their relations and conduct with each other.

The kind of prescriptive law which is the concern of the philosophy of law is, of course, positive law,
otherwise known as municipal law. It is the law of the state, the law which is the product of the reason
and will of the authorities of the state, and regulates the transactions and relations between citizens in
their social life. It is the law that defines their rights and duties, civil liability and criminal
responsibility, and prescribes the remedies for wrongs and the proper procedure for complaining and
setting up defenses. It is the law, in other words, which is required to be studied in the law schools,
being the subject of the bar examinations, which any aspiring lawyer must learn.

E. Conceptual Analysis

5
St. Thomas Aquinas, Summa Theologiae, 1a2ae, 93:1.
6
Hans Kelsen, “Causality and Imputation,” in What is Justice?, p. 327 (1957). “Just as a law of nature, a rule of law
connects two elements with each other. But the connection described by the rule of law has a meaning totally different
from that of causality. For it is evident that the criminal delict is not connected wit hthe punishment, and that the civil
delict is not connected with the civil execution, as a cause is connected with its effect. The connection between cause
and effect is independent of the act ofa human or a superhuman being. But the connection between a delict and a legal
sanction is established by an act, or acts, of human beings, by a law-creating act, that is, an act whose meaning is a
norm.
...
Since the connection between a delict and sanction is established by a prescription or a permission—a ‘norm’—the
science of law describes its object by propositions in which the delict is connected with the sanction by the copula
‘ought.’ I have suggested designating this connection ‘imputation.’”

5
As earlier intimated, the method to be used to study law is conceptual analysis. The conceptual
analysis of “law” is a logical inquiry about the concept “law.” It seeks to find out what does or does
not follow from, what is or is not logically presupposed by and what is or is not compatible with the
concept. As such, it engages in a logical clarification of the concept. This is achieved hen some sort
of definition, known in philosophical parlance as “explication,”7 is reached. This definition, ideally,
is supposed to list down the necessary and sufficient conditions which distinguish law from non-law;
and hence the similarity to “essentialist” definitions.

In coming up with an explication, the concept must, of course, first be examined. This is done by
looking at ordinary usage, how people actually use the term “law” while communicating with other
people. The concept is basically what people generally understand by such a word, suitably purified
and there is no better evidence than actual usage. Hence, conceptual analysis begins with and makes
use of lexical definitions.

However, the philosopher does not end his inquiry with the lexical definition, for ordinary usage may
be vague, ambiguous, inconsistent, or even misleading about the matter, and philosophical puzzles
are generated. He needs therefore to go beyond the evidence of ordinary usage, to discover the implicit
logical assumptions or presuppositions of the concept, to discover what is truly meant by the concept
in explicating it.

The assumption is that, because of the fact of successful communication, there exists a common or
shared meaning actually communicated by that term, which is free from logical impurities, the
vagueness, ambiguities, inconsistencies, and puzzlement mentioned earlier. This meaning actually
underlies the use of the term, although it may not immediately be apparent. Or such a common or
shared meaning may not actually exist, but remains to be constructed. The concept has to undergo
not just clarification but purification and refinement, and a newer, better concept is created. Since the
evidence of ordinary language is not conclusive as to what is really meant by that term, the philosopher
has to make a proposal or a linguistic recommendation as to how to regard the concept. Hence the
affinity with stipulative definitions. Whether the concept is clarified by means of the bald assertion or
a proposal like a stipulative definition, is justified by the fact that such an explication provides a deeper
and more insightful understanding of the phenomenon being considered.

Hence it is not actually a definition, in the sense that it merely substitutes one word or set of words,
the definiendum, or the word (phrase) to be defined, with another set, the definiens or the defining phrase,
which is synonymous or equivalent in meaning to the definiendum, that conceptual analysis is after.
Although the logical requirement of a definition that it be logically correct is met, the purposive
requirement, that the definiens contains words which the reader already understands so that he
understands it, is not. To determine whether the explication of a concept is logically correct, the reader
need merely look into the linguistic world, the world of concepts, and not the actual world. “Does the
explication reflect what people generally understand by the use of the word?” is the question that is
asked. Or “does the explication provide a better understanding of people’s confused understanding of
the concept as reflected in their use?” The logical requirement or the criterion for logical correctness,
therefore is confined to the linguistic world.

7
This term is normally associated with Carnap. The fact that this book employs it is simply for lack of a better
alternative; it does not necessarily express conformity with or agreement to the full implications of Carnap’s use of
the term.

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However, the purposive requirement is not satisfied. The purpose of analysis is not simply that of
enabling people to use the term correctly in the manner proposed. For analysis assumes that the term
to be analyzed, “law” in this case, is already understood for everyday purposes, in the sense t hat
people can correctly pick out the instances of the phenomena referred to by the word. Rather, it is
more than just a definition analysis seeks. It is a description of a special kind, of how we use words,
which, as mentioned earlier, aims to provide a deeper type of understanding of the world, and not the
one which merely informs us how to use the term. For one may correctly know what items are picked
out by such a term, but philosophical puzzlement remains. In short, analysis seeks to uncover the
underlying presuppositions people make in their use of the word “law,” which is not immediately
apparent, thus providing a deeper understanding of the phenomena reflected in the concept.

Thus, the understanding analysis brings is logical in character and involves the perception of logical
interrelations of our concept. “A main source of our failure to understand is that we do not command
a clear view of the use of our words. – Our grammar is lacking in this sort of perspicuity. A
perspicuous representation produces just that understanding which consists in ‘seeing connections.’”8
But, in making better logical sense of linguistic concepts, analysts are able to depart the linguistic world
so as to correspondingly understand the world better.

For language, to quote Wittgenstein, “is an instrument. Its concepts are instruments.”9 “Concepts
lead us to make investigations; are the expression of our interests and direct our interests.”9 On the
other hand, Austin uses a similar metaphor. To him, “words are our tools, and, as a minimum, we
should use clean tools: we should know what we mean and what we do not, and we must forearm
ourselves against traps language sets us.”10 Thus, given the similarity in metaphor, the conclusions
they make are much the same, albeit with different applications.

Words are used to talk and communicate about the world. They are as much a gateway to the world
as ordinary perception is, in that by means of them people understand and make sense of the world.
But for words to be fully effective as instruments or tools and rendered better able to serve their logical
purpose, they must be cleaned and refined, clarified and analyzed. By so doing, the conceptual
philosopher looks at how people ordinarily think and understand the world, which not only
correspondingly enables him to fulfill philosophy’s negative and therapeutic purpose which is
Wittgenstein’s point, of avoiding linguistic confusion, but to satisfy as well philosophy’s positive and
constructive purpose, which is Austin’s, of making clearer sense of the world and phenomena.

Hence, Wittgenstein queried: “Where does our investigation get its importance from, since it seems
only to destroy everything interesting, that is, all that is great and important? (As it were all the
buildings, leaving behind only bits of stone and rubble.)”12 To which he readily replied: “What we are
destroying is nothing but houses of cards and we are clearing up the ground of language on which they
stand.”11 “The results of philosophy are the uncovering of one or another piece of plain nonsense and
of bumps that the understanding has got by running its head up against the limits of language. These

8
Ludwig Wittgenstein, Philosophical Investigations, 1953, p. 49e, par. 122; italics Wittgenstein’s.
9
Id., at p. 151e. par., 569.
9
Id., at p. 151e, par. 570.
10
J.L. Austin, “A Pleas for Excuses,” in Philosophical Papers 182 (J.O. Urmson and G.J. Warnock eds., 3d ed. 1979).
The article was first published in Proceedings of the Aristotelian Society, vol. 57 (1956-57) 12 Wittgenstein, supra.
note 8, at 48e, par. 118.
11
Id.

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bumps make us see the value of discovery.”12 On the other hand, Austin stressed: “When we examine
what we should say when, what words we should use in what situations, we are looking again not
merely at words (or ‘meanings’ whatever they may be) but also at the realities we use the words to talk
about: we are using a sharpened awareness of words to sharpen our perception of, though not as the
final arbiter, of phenomena.”13

These explain why although analysis is a verbal or linguistic activity, confined as it is to the world of
concepts or the linguistic world in arriving at a definition, it cannot be trivial. For as Wittgenstein
pointed out, linguistic confusion can not in any way be trivial.

“The problems arising through a misinterpretation of our forms of language have a


character of depth. They are deep disquietudes; their roots are as deep in us as the
forms of our language and their significance is as great as the importance of our
language. – Let us ask ourselves: why do we feel a grammatical joke to be deep? And
that is what the depth of philosophy is.”14

The eradication of this deep linguistic confusion is thus important and valuable.

Moreover, an inquiry that enables readers to understand the world better, which is the point made by
Austin, is likewise fundamentally important. In terms of what it is intended to achieve, it is in a way
like an “essentialist” definition. An essentialist definition tries to capture the essence of reality. But it
is doubted whether such can ever be achieved by the philosopher and, in any case, the scientist is better
equipped to investigate reality directly. The conceptual philosopher makes no such mistake. He leaves
the investigation of the world to the scientist but complements the latter’s work by attending to
language and concepts, which in providing the former a look at how the world is understood, enables
him also to understand the world better.

F. The Kinds of Legal Theories

I have classified legal theories into four basic kinds: (1.) legal positivism; (2.) natural law theories;
(3.) social science theories; and (4.) radical or critical theories. Each of them adopts a particular
perspective or viewpoint of what law is.

1. Legal Positivism

Legal positivism, perhaps, provides the simplest explanation of what the law is. As such, it is
considered dull and boring for it merely postulates what many consider to be obvious. Hence, the
various positivist theories claim that law is a command, or is a hierarchy of norms, or is the union of
primary or secondary rules, or is a social fact and the like.

Positivism displays three theoretical commitments: the Social Fact Thesis, the Conventionality Thesis,
and the Separability Thesis. “The Social Fact Thesis (which is also known as the Pedigree Thesis)
asserts that it is a necessary truth that legal validity is ultimately a function of certain kinds of social
facts. The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts

12
Id., at par. 119.
13
J.L. Austin, “A Plea for Excuses,” Proceedings of the Aristotelian Society, vol. 57 (1956-57), p. 8; italics Austin’s.
14
Wittgenstein, supra. note 8, at p. 47e, par. 111.

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giving rise to legal validity are authoritative in virtue of some kind of social convention. The
Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis; according to
the Separability Thesis, there is no conceptual overlap between the notions of law and morality.”15

Positivism, as a theory, emanates from the insight that law is a product of human endeavor or human
will. This thought is encapsulated in the Roman maxim: Quod principi placuit legis habet vigorem
(Whatever pleases the prince has the force of law.). Positivism is to be distinguished from the next
theory, Natural Law Theory, which postulates that law is a product of reason, but not necessarily
human reason. Hence, it may be formulated or enacted by God or by nature.

As a human artifact, any enactment of law, so long as it conforms to the prescribed ways to make law,
is valid. Consequently, law need not conform to any kind of content in order to be valid; it must
merely have been enacted in a procedurally sound manner. It must, in other words, simply to have
followed the prescribed proper procedures for the enactment of law in order for it to qualify as valid
law.

Consequently, the separability thesis or the separation of law and morality follows. For law need not
fulfill any kind of moral content to be valid. Its enactment must simply have undergone the proper
process.

There have been, throughout its history, various positivistic theories. There are the command theories
of Jeremy Bentham and John Austin, the theory of law as a structured hierarchy of coercive norms of
Hans Kelsen, the union of primary and secondary rules theory of H.L.A. Hart and the law as a social
fact theory of Joseph Raz. Hart’s theory is known as inclusive positivism, while Raz’ that of exclusive
positivism.

2. Natural Law Theories

Natural Law Theories provide the natural opposite to or antithesis of legal positivism. In terms of
time, natural law theories predate positivism, and owe its origins to Classical Greek times, if not
earlier. Socrates, Plato and Aristotle all subscribed to it and they were influenced by their earlier
forebears, such as Pythagoras, Heraclitus or Parmenides.

Naturalism contests the separability thesis and maintains that there is an intrinsic, essential, or
conceptual connection or link between law and morality. In fact, law cannot be understood without
its link to morality. Morality provides the key to the proper understanding of law. The connection
may exist in a variety of ways.

For the classical Greeks, the connection was in terms of validity. They subscribed to an objective
universal morality which positive law had to conform to in order to be valid. The truism most readily
associated with this view is that of the dictum: “An unjust law is not law,” which has been attributed
to St. Augustine. In other words, any law must meet certain minimum standards of morality in order
to be valid. In this course, we will study the views of Aristotle, Cicero, St. Thomas Aquinas and
William Blackstone as illustrative of the Classical Natural Law Theory.

15
Kenneth Einar Himma, “Philosophy of Law,” The Internet Enclopaedia of Philosophy.

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Classical Natural Rights Theory has its champion in John Locke and the U.S. Constitution. Indeed,
natural rights theory is said to be the justification for the American Revolution and the guiding spirit
with which the U.S. Constitution was drafted, particularly with respect to the First Ten Amendments.
Under this theory, any purported law violative of natural rights is invalid or void, regardless of whether
the right has been constitutionally recognized or not.

Next to be studied is the Procedural or Methodological Natural Theory of Lon Fuller. He maintained
that law must satisfy eight procedural requirements in order to be valid which would then require law
to have an internal morality.

Constructive or Jurisprudential Natural Law describes the legal philosophy of Ronald Dworkin, who
claimed that the legal enterprise is constructive in the sense that law is being constantly interpreted
and applied to satisfy two requirements, that of fit and of soundness. The soundness criterion, which
mandates that we must interpret the law in its best moral light, provides law its moral quality.

Finally, we have the Neo-Thomists, such as John Finnis, Michael Moore, and Robert George, who
modified the views of St. Thomas Aquinas and made them up-to-date. Indeed, they accepted and
adopted some of the doctrines of positivism like the assertions that law is authoritative and
exclusionary. In incorporating many positivistic views in their analysis of law, they have rendered
Classical Natural Law Theory more plausible and acceptable.

3. Social Science Theories

Social science theories have a positivistic perspective in that they view law as a product of human
endeavor which therefore has no essential connection to morality. The difference from positivism
is simply that it studies law as a social phenomenon, not as a linguistic entity, and its explanation of
law is descriptive in orientation. In describing law, it adapts what is sometimes called an external or
a third-person perspective.

An external view is to be contrasted with the internal point of view. According to Hart, who
popularized this idea, it is the “view of those who do not merely record and predict behavior
conforming to rules, but use the rules as standards for the appraisal of their own and others’
behavior.”16 It investigates law from the outside and neither from within, as a practitioner or citizen
does, nor from above as a philosopher or conceptual analyst engaged in meta-studies, does.
Consequently, law is seen merely as a set of predictions and not as normative judgments which are to
be obeyed or complied with. This narrow perspective fails to capture many of law’s salient or essential
features. In particular, it fails to capture law’s binding character.

This course will study the Anthropological or Historical Jurisprudence of Henry Sumner Maine, Karl
Savigny and Karl Llewellyn, the sociological jurisprudence of Eugen Ehrlich and of Dean Roscoe
Pound, the psychological jurisprudence of Jerome Frank as representative of American Legal Realism,
the Policy Science Approach of Myres MacDougal, the Economic Jurisprudence of Richard Posner,
and the Scandinavian Legal Realism of Alf Ross, Axel Hagelstrom and Karl Olivecrona. It is difficult
to situate the Scandinavian school within our four categories, but it is definitely neither naturalist nor
radical. Its basic tenets share much in common with positivism or social science theories; some of

16
Hart, The Concept of Law, 1961, p. 51.

10
them are more positivist than social scientist, and vice-versa. I have decided to classify it among the
social scientists.

4. Radical or Critical Theories

Thus far, the chapter has been describing what is considered to be mainstream or orthodox liberal legal
theories. Liberal legal theories presume the ideology of liberalism which is a feature of Western
democracies or of First World countries. Radical legal theories challenge this and expose the
inconsistencies and incoherencies intrinsic to or inherent in such legal systems. They postulate a
new political philosophy and ideology, based on communitarianism, and devise utopian legal theories
in terms of them. Although most of them stress the negative or destructive element, wherein they
criticize the uncertainty and inconsistencies in extant legal systems, some of them have proposed a
positive programme for the construction and elaboration of an ideal legal system.

This was the political situation the radical legal theorists faced and reacted to which appalled the more
radically inclined among them. It was the era of the Vietnam war where protests against the war,
massive civil rights demonstrations, and civil disobedience were at its height. The more rebellious
turned to revolutionary solutions. Theorists subscribed to a theoretical one. They arrived at their own
political ideology in response to what they perceived to be problematic and inconsistent political
philosophizing, which hampered individual human progress, flourishing and well-being. Radical legal
theories then arose which repudiated the legal theories associated with liberal theories and, in
particular, repudiated the main tenets of such theories, such as the certainty, stability, predictability
and coherence of law. A more comprehensive account of the debate between liberalism and
communitarianism is offered in Part VII of this chapter on Political Philosophy.

The specific radical theories to be studied in this course are, first, the Marxist Legal Theory of Karl
Marx, Friedrich Engels, V. I. Lenin, and E. B. Pashukanis. They perceived law as nothing but
representing the interests of the moneyed or propertied class in society, the bourgeoisie. Then came
Critical Legal Studies as represented, among others, by Roberto Mangaberia Unger, Mark Kelman,
Peter Gabel, and Duncan Kennedy. They combined the insights both of Marxism and of American
Legal Realism to expose the inadequacies, uncertainties and inconsistencies of liberal legal theory by
means of the methods of trashing and deconstruction, which incidentally owed its philosophical and
intellectual roots to Postmodernism. Postmodernism, as a philosophy, arrived with the theories of
Jean Francis Lyotard and Michel Foucault. Postmodern theories of law were later developed by the
poststructuralists, such as Jacques Derrida and Michel Foucault, neo-pragmatists such as Richard
Rorty and Stanley Fish, and post-Freudian psychoanalysts such as Jacques Lacan. Postmodernism,
perhaps, represented the most radical approach as it challenged even the possibility of theoretical
knowledge. Finally, there is Feminist Jurisprudence some of whose strands carry on the tradition of
critical legal studies and postmodernism. They do have other more conventional strands such as
liberal and conservative feminism. Their more novel strands include cultural or maternal, pragmatic,
and radical feminism. It is claimed that only maternal feminism and radical feminism represent true
feminist theory in so much as the other feminist theories are masculine in orientation. The course will
study the views of Catharine MacKinnon, Robin West, Jane Radin, among others.

II. THE NATURE OF LEGAL REASONING

It is one of the main tenets of this book that law, as a linguistic entity, has a normative content which
can be theoretically structured. Indeed, the law that is studied in law school is being presented by law

11
professors as a systematic theory. That is their contribution to law. They attempt to make law more
readily understandable by simplifying or systematizing it into some sort of coherent whole. They
avoid what the poet Alfred Lord Tennyson once graphically criticized about the Common Law: “the
lawless science of our law, That codeless myriad of precedent, That wilderness of single instances.”

In a way, the judge also does the same. But the judge only does this with respect to cases that come
before him in the form of novel cases or cases of first impression, where law’s rules, norms or standards
need to be stretched to apply to hitherto unknown or new situations. Hence, the judge’s systemizing
role is only piecemeal, confined as it is to the cases which he decides.

The law professor has more leeway and latitude. If he is sufficiently ambitious and proficient, he may
attempt to systematize an entire area of law, such as Criminal Law, for example. And, if his interests
extend to other legal topics, he may systematize the legal system in its entirety.

In the discussion which follows, I will examine various systems of knowledge, mathematical,
scientific, and ethical, in the hope that the examination will help us understand more clearly the
theoretical structure of law.

A. Mathematical Theory

All bodies of knowledge have been systematized. Mathematics, as the queen of the sciences,
represents the theory which is most systematically organized. Indeed, the knowledge structure of
mathematics can ultimately be reduced to its axioms. Its axioms form the basis or foundation of all
mathematical knowledge. By means merely of deduction, all the other truths of mathematics can then
be derived. The paradigm example of this is Euclidean Geometry.

Mathematical knowledge, thus, can be logically organized in the form of a deductive pyramid, with
the tip at the top containing the axioms (the fewer they are, the more elegant the knowledge system),
and the other mathematical truths derivable from those axioms by means merely of logical deduction.
Consequently, mathematical knowledge is self-contained, the truth of all its theorems, from its highest
to its lowest level, being immanent in the very axioms of the science.

Knowledge proceeds from top to bottom. The top represents the axioms or ultimate truths, said to be
true self-evidently, intrinsically or intuitively. All the other lower-level theorems or theoretical truths
can be logically derived from these axioms by means purely of logical deduction. Truth is then said
to be transmitted downwards.

B. Scientific Theory

Science represents the epitome of a systematized body of empirical knowledge. Being empirical, there
must be a way to arrive at or unearth the truths of the sciences. There is a distinction, however,
between how a piece of knowledge came to be known and how it can be justified, as will be explained
forthwith.

1. Logic of Discovery

The discovery of knowledge, in science, however does not come in such a systematic, organized,
rational or logical manner. There is no such thing as the logic of discovery. Theory construction

12
remains an enigma or mystery which is possessed by the most creative or imaginative among us, even
if they do not know how this insight or creativity works or comes about.

Hence, Archimedes discovered how to determine the density of a physical object by immersing it into
a tub full of water and measuring the volume and weight of the water displaced. This, he learned,
purportedly while bathing, and it is said that when he made his discovery, he was so overwhelmed
with joy that he ran rushing out of his bath shouting Eureka (I have found it!), unaware or unmindful
of his own nakedness! Sir Isaac Newton, allegedly, arrived at the theory of gravitation and the Three
Universal Laws of Motion, which is capable of measuring and explaining all motion not only on earth
but also of the entire universe, while watching an apple fall off a tree. Other scientists have unearthed
their inventions by guessing, dreaming or day-dreaming or constant thinking and the like. There is no
rhyme or reason in this arrival of scientific insight, but by means of it great scientists have been able
to reduce scientific knowledge into a systematized or organized entirety.

2. Logic of Justification

Whereas there is no logic of discovery, there exists some sort of logic of justification. The truth of the
scientific insight, once it has been arrived at, cannot be guaranteed by the manner by which it has been
arrived. Rather, the theory must be capable of being tested as to whether it is true or false. Testing is
to be done by scientific experiment under controlled conditions which are repeatable, so as to confirm
its validity. Therein lies the secret to the justification of scientific theory.

If the new scientific theory survives the experimental tests, it can be re-organized into some sort of
inverted pyramidal knowledge structure, where the side at the top and not the tip at the bottom
represent the starting points or foundations of knowledge. These are the observation statements,
which, unlike general theory, can be determined to be true or false by means merely of direct
perception or observation.

In this discussion, I will assume that the truth of the existence of ordinary objects with properties that
can be ascertained by direct observation. Thus, I will only minimally discuss the further complication
introduced by sense-data. Under sense-data theory, we do not directly perceive physical objects but
only sense-data, and therefore the ultimate foundations of scientific knowledge are sense-data
statements. However, that approach, apart from being misguided, is solipsistic. Knowledge can never
go beyond sense-data, since the jump from the truth of sense-data statements to the truth of physical
object statements is not logical or deductive in character. The gap can never be breached. The theorist
will forever be stuck with only sense-data knowledge.

Moreover, sense-data theory is misguided because all perception is theory-laden. There is, in other
words, no presuppositionless seeing or perception. Theory infects already everything that is seen.
Hence, an individual observer cannot help but perceive directly physical objects, because the moment
he learns language he already presupposes their reality or existence.

From observation statements, observational generalizations are made. This is accomplished by means
of induction. It is assumed that generalizations can be made over specific instances, that the world we
have not yet seen is much like the world that is actually seen, so that observers anticipate that future
instances of a phenomenon resemble a past one, and that therefore empirical generalizations or laws
exist. The world, in other words, is regular and uniform. In such a manner does a theorist arrive at

13
such empirical generalizations or laws like: “All swans are white,” or “All planets revolve around the
sun,” or “Food nourishes,” or “Fire burns,” and the like.

Theories enter into the picture when the previous study of a class of phenomena has revealed a system
of uniformities that can be expressed in the form of generalizations. Theories seek to explain those
regularities and to afford a deeper and more accurate understanding of the phenomena in question. A
theory construes these phenomena as manifestations of unobserved entities and processes that lie
behind or beneath them. These are assumed to be governed by characteristic theoretical laws, or
theoretical principles, by means of which the theory then explains the empirical uniformities that have
previously been discovered and usually predicts new regularities of similar kinds.17

Hence, from observational generalizations, the theorist generates theoretical statements. The leap
from observation to theory is not made via induction such as the jump from that of an observation
statement to a generalization. Entities are created or presupposed to exist which defy perception, but
they are assumed to exist because by means of them important scientific predictions regarding future
observations can be made and existing observational knowledge can be systematically organized.

Thus, although we cannot directly perceive atoms or molecules and the truth of their existence cannot
be established by observation, their existence is believed to be true because of the tremendous
explanatory and predictive power generated by their presupposition.

For example, take the kinetic theory of gases. Charles’ law states that at constant pressure, the volume
of a given mass of an ideal gas increases or decreases by the same factor as its temperature increases
or decreases. In other words, if gas is to be heated, its volume increases. If the said gas were placed
in a container, the container would then explode due to the increase in temperature.

The phenomena of the gas expansion leading to the explosion can be directly observed. The scientific
explanation of this phenomenon is by means of the kinetic theory of gases. The gases are made up of
unobserved atoms and molecules, which are presumed to exist. When heated, their energy increases
such that they will be moving more energetically in a rapid, haphazard and zigzag manner. They will
impinge upon the walls of the container more often and more rapidly such that the force impinging
upon the walls of the container reaches such a degree as to result in an explosion. The explosion is
observed, but the movement of the atoms and molecules, is not. It is the kinetic theory of gases which
postulates this to occur unobserved.

From these unobservable theoretical entities, such as atoms and molecules, and statements,
explanatory theories are devised. At the highest level of these theories are the theoretical statements
which serve as the ultimate axioms or principles of the science. These are the statements at the bottom
of the pyramid. These statements provide an explanation and justification for the entire theory; but
they are not the starting-points but the end-points of knowledge. Thus, Newton’s Three Universal
Laws of Motion provide the foundations of gravitational theory regarding all movement in the
universe and are its ultimate axioms.

Science is presented in our textbooks not in the manner by which its truths have been discovered.
Instead, science is depicted already as a structured and organized whole, as a deductive system, as if
the ultimate axioms and principles are indubitably true. By means of them, all the other knowledge,

17
Carl Hempel, Philosophy of Natural Science, 1966, p. 70.

14
including observation statements, are claimed to be logically derived. However, they are not the
starting points of knowledge, and therefore cannot justify the alleged truths below them. Instead their
truth depends on, but not logically so, the truth of the observation statements below them and inference
leaps and jumps made on the basis of those observation statements.

In other words, the link to the world is not the theory or the ultimate theoretical axioms and principles;
instead, it is the observation statement which talks about objects we can directly perceive and whose
truth can be directly verified. It is this kind of statement which is predicted by the theory to happen in
the event that the theory is true. Hence, it provides some sort of justification for the truth of the
scientific theory. However, logically speaking, it does not justify or explain the theory; in fact, it is
explained by the theory. Moreover, it merely provides evidence for the theory and confirms it in some
degree.

Moreover, the theory is beset by the so-called under-determination of theory by fact. All fact is capable
of an infinity of theoretical explanations, none of which can be completely falsified. For any theory
presumed to have been falsified is always subject to modification, amendment or amelioration to
salvage it to account for the anomalies. As such, any existing scientific paradigm we hold can never
be established to be absolutely true. It is always subject to challenge by a new paradigm. For although
the facts constrain theory, they can neither, no matter how accurate, varied, and extensive they are,
uniquely determine nor conclusively refute the truth of any scientific theory. Consequently, no
scientific theory can ever be absolutely justified as true or definitively established as false.

When a science has been able to generate much predictions and discovery, it becomes so accepted and
immune from doubt, that it represents the paradigm science. People make sense of the world through
its prisms. However, no science is infallibly true. Deductions from the theory may give rise to
anomalies. In other words, the world, with respect to this anomaly, does not happen to be how the
paradigm theory says it should be. These anomalies may turn out to be the theory’s undoing, in the
sense that it can potentially disprove the theory. Somehow the theory must be modified to account
for the anomaly.

It is at this point when a crucial test or experiment must be designed. The result of the test is such that
only one theory will be capable of explaining the result and thus survive. In other words, this crucial
test will prove one theory to be correct and the other wrong. Scientific change or revolution thus
remains rational.

For example, in the 19th Century there were two competing conceptions of the nature of light, the wave
theory of Foucault and the corpuscular theory of Newton. Foucault devised an experiment in which
he showed that the velocity of light was faster in water than air, which was consistent with the wave,
but not the corpuscular, theory. This, to him, provided irrefutable proof that the corpuscular theory
was wrong.

However, newer historical accounts of scientific change show that scientific change does not simply
result from the occurrence of crucial tests. A competing theory need not be immediately discarded by
means of such a test. As to the corpuscular theory, Einstein managed to salvage it by propounding a
modified version of the corpuscular conception. Indeed, an experiment of the kind suggested cannot
strictly refute one of two rival hypotheses.

15
This is because, as Einstein was able to accomplish with the corpuscular theory, a theory may be so
modified as to eventually account for and explain the anomaly. What actually happens seems to be
this. The two scientific paradigms are to be compared against each other in their entirety. In other
words as previously mentioned, no single test can establish one theory right and the other wrong. The
judgment, if it is to be made, requires much more evidence than a simple crucial test.18

The process of scientific change seems then to happen as follows. At some point, a new, more
powerful scientific paradigm may arise to challenge the old paradigm so that a revolution is threatened.
This new paradigm science appears to have greater explanatory power, or to be simpler, or to survive
many more crucial tests, or to account for more anomalies than the previous one. Other more complex
factors enter into the picture, such as the elegance of the new theory, its attractiveness, or the stature
of its proponents. Indeed the choice between competing scientific paradigms is said no longer to be
completely rational. Other factors enter into the process. The choice possesses elements now of the
psychological, sociological or political. Admittedly, there remain those who claim that the process
remains rational, such as Sir Karl Popper with his falsification theory19 or Imre Lakatos with his theory
of progressive and stagnating or degenerating scientific research programmes. 20 Historians and
philosophers of science, such as Thomas Kuhn or Paul Feyerabend, however disagree. For Kuhn, the
revolution results from a scientific conversion of the allegiance of many scientists from the established
paradigm to a new science,21 while Feyerabend advocates an anarchistic “anything goes” process in
scientific revolutions.22

18
There are no such things as crucial experiments, at least not if these are meant to be experiments which can instantly
overthrow a research programme.” Imre Lakatos, “Falsification and the Methodology of Scientific Research
Programmes,” The Methodology of Scientific Research Programmes, 1980, p. 78.
19
“It must be possible for an empirical scientific system to be refuted by experience.” The Logic of Scientific
Discovery, 1980, p. 41.
20
“A research programme is said to be progressing as long as its theoretical growth anticipate its empirical growth,
that is as long as it keeps predicting novel facts with some success . . .; it is stagnating if its theoretical growth lags
behind its empirical growth, that is, as long as it gives only post hoc explanantions of either chance discoveries or of
facts anticipated by, and discovered in a rival programme.” “History of Science and its Rational Reconstruction,”
Supra., note 7, p. 100. “Thus progress in the theory of scientific rationality is marked by discoveries of novel historical
facts, by the reconstruction of a growing bulk of value-impregnated history as rational. In other words, the theory of
scientific rationality progresses as it constitutes a ‘progressive’ historiological research programme.” Id., pp. 133-
134.
21
“I would argue, rather, that in these matters neither proof nor error is at issue. The transfer of allegiance from
paradigm to paradigm is a conversion experience that cannot be forced.” Thomas Kuhn, The Structure of Scientific
Revolutions, 1962 , p. 150. “Still, to say that . . . paradigm change cannot be justified by proof, is not to say that no
arguments are relevant or that scientists cannot be persuaded to change their mind. Though a generation is sometimes
required to effect the change, scientific communities have again and again been converted to new paradigms.” Id., p.
152.
22
For Feyerabend, new theories came to be accepted not because of their accord with scientific method, but because
their supporters made use of any trick – rational, rhetorical or ribald – in order to advance their cause. Without a fixed
ideology, or the introduction of religious tendencies, the only approach which does not inhibit progress (using
whichever definition one sees fit) is “anything goes”. Against Method, 1975, p. “They (the principles of critical
rationalism) give an inadequate account of science because science is much more ‘sloppy’ and ‘irrational’ than its
methodological image.” Against Method, 1975, p. 179. In contrast with critical rationalism, Feyerabend postulates
the method of an epistemological anarchist, which he described as follows: “His aims remain stable, or change as a
result of argument, or of boredom, or of a conversion experience, or to impress a mistress, and so on. Given some
aim, he may try to approach it with the help of organized group, or alone; he may use reason, emotion, ridicule, an
‘attitude of serious concern’ and whatever other means have been invented by humans to get the better of their fellow
men. His favorite pastime is to confuse rationalists by inventing compelling reasons for unreasonable doctrines. There

16
In any case, there can be no definitive victory of one scientific paradigm over another; only the survival
of the most popular or accepted one so that it has become the accepted paradigm. This phenomenon
is due to the earlier-described under-determination of theory by fact. We simply cannot rationally
choose between competing theories. There will always exist an infinite variety of theories capable of
suitably explaining any given set of facts.

C. Social Science Theory

The structure of social science theory introduces newer complications so that it has been claimed that
scientific theorizing is not possible, or at least extremely difficult to attain, in the social sciences. The
difficulties are many; none of which, however, are insurmountable.

First of all, there is the limited possibility of controlled experiment in the social sciences. The scientist
is hard-pressed to reproduce all the relevant social factors within his laboratory so as to be able to
conduct a meaningful scientific experiment. Instead, the scientist is often forced to conduct
experiments in the field, as it were, with its minimal control of the variables; he then is reduced to
merely observing society as it progresses or changes. Hence, he is extremely hampered in arriving at
comprehensive theories which can withstand rigorous scrutiny.

Secondly, there is the problem of cultural relativity or the so-called “historically conditioned” or
“socially determined” character of social phenomena. Institutions within societies have progressed
and developed in response to different environments so as to embody distinct cultural traditions.
Inevitably, the internal structures and interrelations of corresponding institutions in different societies
also differ. The patterns of social behavior will vary with the character of the institutions at a given
historical period and conclusions reached by controlled study of sample data drawn from one society
are not likely to be valid in another.

Thirdly is the claim that knowledge of social phenomena is a variable which affects people’s attitudes
and behavior. In specific, human beings frequently modify their habitual modes of behavior as a
consequence of acquiring fresh knowledge about the events in which they are participating or the
society of which they are members. Consequently, it affects the conduct of the investigation of social
phenomena and the conclusions reached in such investigations.

The fourth concerns the subjective nature of the social subject matter. The social sciences deal with
purposive human action, directed to attaining various ends or values. However, motives, dispositions,
goals, and values are not matters open to sensory inspection. Thus, it has been held that the categories
of description and explanation in the social sciences are radically subjective, which require non-
objective techniques of inquiry.

Fifthly, there is the value-oriented bias of social inquiry. The social values to which investigators of
social phenomena are committed not only color the contents of their findings but also control the
assessment of the evidence on which they base their conclusions. Since social scientists generally differ

is no view, however ‘absurd’ or ‘immoral’, he refuses to consider or to act upon, and no method is regarded as
indispensable. The one thing he opposes positively and absolutely are universal standards, universal laws, universal
ideas such as “Truth’, “Reason’, ‘Justice’, ‘Love’ and the behavior they bring along, though he does not den that it is
often good policy to act as if such laws (such standards, such ideas) existed, and as if he believed in them.” Id., p. 189.
“Science took over by force, not by argument.”

17
in their value commitments, the way they conduct their investigation and the conclusions they reach
will vary. Hence, the value neutrality that seems to be so pervasive in the natural sciences is often
concluded to be impossible in social inquiry.

Finally, there is the statistical nature of the laws of the social sciences. Instead of generalizations being
arrived at by social scientists, only statistical probabilities are generated. Due to the inherent
complexity of social science subject matter and the free will of man, what he will do in a given situation
cannot be completely predicted. As to the former, since a scientist is unable to identify individually
all the pertinent variables in the making of a scientific law or generalization in a given situation, he is
unable to state the precise conditions upon which different types of human conduct invariably depend.
As to the latter, since the will is free, its manifestation in overt action is not completely predictable, so
that there can be no invariable regularities in social phenomena. The individual reacts not to external
stimuli but to his interpretation of the internal stimuli. Instead, what can be predicted is what most
men are likely to do in a given situation; only statistical probability, not universal generalizations, can
therefore be arrived at.

The difficulties notwithstanding, there has been meaningful, if not dramatic, progress in the
theorybuilding of the social sciences, particularly with respect to the science of economics. Human
behavior has been described in terms of two factors, the amount of good, the value or worth for the
individual of the goal or purpose of the act he is undertaking and the probability that the goal will be
achieved.

In other words, the economic man is said to be a rational maximizer. He will maximize his good, and
in order to do so, he must have a theory of the good or of what he finds desirable and a way of
calculating or measuring not only that good but also the probability of achieving that good. Any
action, by this rational economic man therefore, will be chosen in terms of the greatest amount of
good that can be realized.

For example, an individual is to decide whether to sell his car or not. It depends on whether he finds
money to be more valuable than his car. There will be an amount which he figures his car is worth to
him, or the amount he is willing to replace for the car. Short of that amount, he will not sell his car.
Owning the car is more valuable to him than the money exchanged for the car.

Let me take another example, say of purchase. The individual is deciding between buying a house in
the mountains and buying a house on the beach. He enjoys the beach more than the mountains, but
the cost of the house on the beach is much more, say P100,000.00, than a house on the mountains
which is worth P20,000.00. But the house on the beach is to him worth only P80,000.00 of good or
enjoyment. Consequently, he will not purchase it. The house on the mountains, on the other hand,
is to him worth P30,000.00 of good. He would then increase the amount of good he owns by
P10,000.00, if he purchases the house on the mountains. If he were rational therefore, he would buy
the house on the mountains.

All human behavior, not just economic behavior, can be calculated and measured, by means of this
formula. Say, for example, he is to choose between two girls s to whom to court. The first girl is more
desirable, say worth 10 units to him while the second girl is worth only 2. However, he has only a
10% chance of winning the affections of the first girl while he has an 80% chance with the second.
The rational thing for him to do therefore is to court the second girl, since the good is computed at 1.6
units while that of courting the first is only 1.0 unit.

18
Even if all human behavior can be so calculated, there is this criticism against economic rationalism,
which is related to the issue of statistical probability. Economics does not, as of yet, aspire for universal
generalizations but only statistical probabilities. This is because an individual will not behave
rationally all of the time. Sometimes, he will forego his own rational self-interest and be generous or
altruistic, or he may act out of spite so that he engages in harmful or destructive behavior, or he may
act because it is the socially or culturally accepted thing to do. Hence, there is no guarantee that an
individual will behave rationally all the time.

Despite this, economic science has made tremendous progress by assuming that men act or behave
rationally most of the time. It has turned out to be incredibly fruitful for economists to assume that
people will behave like rational maximizers. Consequently, economics has been able to build a firm
foundation of theoretical knowledge by means of this simple insight.

There is a second problem in the social sciences and this regards methodology. There are two schools
of thought, methodological individualism and methodological collectivism or holism.
Methodological individualism claims that only individual persons exist. Methodological collectivism,
on the other hand, insists that groups, such as society or the state, are just as real as individual human
beings. Society or the state is conceived organically, such that the group organically formed is greater
than the sum of the individuals composing it.

The problem is how to construe statements regarding groups. If all statements about groups can be
reduced to statements about the individuals who compose the group, then the truth of methodological
individualism follows. The claim of the collectivist is that statements about groups are not reducible
to statements about the individuals composing them. Something is lost in the translation. Something
new is created by group formation.

This debate between methodologies relates to the issue between liberalism and communitarianism.
Liberals, as earlier stated, claim that only individual persons have worth; while communitarians argue
that the state or society, being organic, have value too.

D. Ethical Theories

Ethical theories are to be distinguished from scientific theories in the sense that they are not empirical.
Instead, an ethical theory is made up of a system of norms or prescriptions, not of factual empirical
truths. It too can be organized or systematized into a theoretical whole.

Ethical theories are composed of ultimate values or principles at the top, mid-level or intermediate
rules or principles, specific rules or norms and the moral judgments at the lowest tier. The relation
between these sets of norms is deductive or logical; the lower-level norms are said to be logically
derived from the upper-level, more general, norms.

1. Conceptual Ascent and Conceptual Descent

There are different logical approaches to ethical theory. Those who claim that most general ethical
truths or fundamental moral principles can be known by means of some sort of rational intuition adopt
the top-down approach and use conceptual descent. Under this approach, the fundamental moral
truths are directly knowable and the truth of the lower-level moral truths can be determined by means,

19
not of moral intuition, but of logical deduction from these upper-level truths or conceptual descent.
Truth is transmitted downwards.

An example of this kind of ethical theorizing is utilitarianism. Utilitarianism is governed by one simple
fundamental axiom: the greatest happiness principle. All the other ethical truths can be derived from
this simple principle. Hence, an individual is supposed to do that act which creates the greatest balance
of good over bad.

Another example would be the ethical theory of St. Thomas Aquinas, where the fundamental moral
principle is “Do good and avoid evil.” Consequently, all the other moral truths are derived from this
basic moral principle. Then there is Kantian moral theory, where the fundamental moral principle is
that which satisfies the Categorical Imperative.

There is, on the other hand, the bottom-up approach which uses conceptual ascent. What is known
to be intuitively true are not general principles, but specific ethical judgments. By means of induction,
the more general moral truths can be derived in conceptual ascent. Truth is transmitted upwards.

An example of this kind of theorizing would be casuistry. Rather than using theories as starting points,
casuistry begins with an examination of cases. By drawing parallels between paradigms, so called
"pure cases," and the case at hand, a casuist tries to determine a moral response appropriate to a
particular case.

Contextual reasoning is thus used, and not reasoning from general principle to a specific case. The
casuist examines the circumstances of a case and arrives at the correct ethical judgment based on the
case’s specific and unique peculiarities. Moral intuition or a sense of rightness may be the faculty by
which the casuist determines whether the judgment is true or false.

One of the strengths of casuistry is that it does not begin with, nor does it overemphasize, theoretical
issues. Casuistry does not require practitioners to agree about ethical theories or evaluations before
making policy. Instead, they can agree that certain paradigms should be treated in certain ways, and
then agree on the similarities, the so-called warrants between a paradigm and the case at hand.

Since moral reasoning in casuistry is contextual, a form of situation ethics is applied. But it is not an
anti-theoretical type of situation ethics which is adopted. General principles are still to be arrived at
by means of conceptual ascent from the intuited ethical judgments. The ethical system does not
remain as “a wilderness of single instances;” rather it is transformed into a unified and organized
whole, made coherent from the bottom, as distinguished from top-bottom, as distinguished from
topdown theories in conceptual ascent which are rendered coherent from the top.

Availing of both conceptual ascent and conceptual descent in top-down and bottom-up theories are
theories which avail of reflective equilibrium, popularized by John Rawls. As applied to ethical
theorizing, such a theorist begins with his considered judgments of moral rightness and frames general
principles based on these judgments. No moral principles or judgments, be it at the top or bottom, has
special epistemological status. Both have some degree of reliability. He then works from both ends.
By going back and forth, sometimes modifying the general principles to conform to the considered
judgments, other times withdrawing the judgments and conforming them to principle, he shall
eventually reach principles which match his considered judgments duly pruned and adjusted. “This
state of affairs I refer to as a reflective equilibrium. It is an equilibrium because at last our principles

20
and our judgments coincide; and it is reflective since we know to what principles our judgments
conform and the premises of their derivation.” 23 Truth is thus transmitted both upwards and
downwards.

The contractualist theory of ethics proposed by Rawls adheres to and avails of reflective equilibrium.
In his seminal book A Theory of Justice, Rawls devised an epistemological thought experiment where a
group of mutually self-interested individuals, under a veil of ignorance, meet to arrive at a theory of
justice using this method.

2. Truth Transmission

The truth of an ethical statement is not derivable from the truth of an empirical statement. This is due
to the gap between the “is” and the “ought.” Whereas an observer can perceive that a killing occurred,
he is unable to perceive that killing is wrong. That requires an inference from two kinds of logically
distinct statements, an “is” from an “ought.”

Similarly, moral judgments can be derived from rules and rules from principles in conceptual descent
and principles generated from rules and rules from moral judgments in conceptual ascent. However,
in descent, neither do principles uniquely determine rules nor rules moral judgments; similarly, in
ascent, moral judgments do not uniquely result in rules nor rules, principles. A phenomenon similar
to the underdetermination of theory by fact in science occurs. Perhaps it can be called
underdetermination of judgment by rule and rule by principle in descent and underdetermination of
principle by rule or rule by judgment in ascent. This is because law is an incompletely theorized
system.

E. Legal Theory

Legal knowledge can be similarly theorized. There are the ultimate legal norms and principles at the
top, the mid-level rules and principles at the middle, and the legal judgment at the bottom. The
starting-points of legal knowledge are the authoritative sources of law. They consist of the statutes
and judicial precedent, which are norms at the levels of ultimate principles, mid-level rules and
principles, and rules. Indeed, they are to be interpreted in a legal case to determine the legal judgment
for that case.

Hence, legal systematization is, in one way, simpler than ethical systematization. The starting points
are known. Truth is transmitted from these starting points. The content of law is no less problematic
or controversial, however.

It may be supposed that a judge only applies conceptual descent in decision-making, as he interprets
the legal rules and principles so as to come up with a legal norm, said to be the judicial precedent or
the ratio decidendi of the case, which subsumes the facts of the case to entail the judgment or decision.
Conceptual descent happens in a simple or easy case where a legal norm is immediately available for
direct application to the facts.

In more complex cases however, the judge will have to use both conceptual ascent and descent. He
may be able to avoid ascent when he can merely interpret the higher-level principles to fashion the

23
John Rawls, A Theory of Justice, 1973, p. 20.

21
correct rule of law or judicial precedent which covers the facts of the case. Here he avails of conceptual
descent from the principles to the rules. But conceptual ascent may also be required. This happens
when the principles available may not be sufficient to arrive at an appropriate rule of law. He may
have to inquire into other similar cases, and generate a broad principle which subsumes the various
rules of law of those similar cases, much like the neighbor principle was arrived in English law to
govern negligence cases.24 Moreover, he may also need to formulate the rules of law or ratio decidendi
from the facts of the case in the various decisions. These comprise instances of conceptual ascent. In
situations of this type, some sort of reflective equilibrium is reached before the judge is comfortable
with the decision of the case.

A legal theorist, not concerned solely with a given case, but the entire law continually uses both
conceptual descent and ascent in arriving at a coherent legal theory. Consequently, in generating a
coherent and consistent legal theory, he also relies on reflective equilibrium.

The Common Law is an example of legal system in which only conceptual ascent was used in
generating the law’s content. This is because it was based on judicial precedent. Some time, during
the twelfth century in England, itinerant judges would travel from shire to shire, dispensing the king’s
justice in various villages. They would apply the law of the land, or the law common to all shires in
England, and not the law of the particular village or shire. As such, the judges were applying the law
based on a common sense of justice, so that it has been argued that the Common Law is but Natural
Law. Their decisions would form the basis of the law from which future judges would base their
decisions. Judicial decisions, not statutes, completely comprised the sources of law. From the rules
of law of decisions, the judges formulated rules and higher-level principles of law to apply to future
cases.

The Civil Law, in so far as it is composed of codes, is an example of a legal system whose content is
derivable solely by conceptual descent, so long as no system of judicial precedent is in place. This was
the system of law, which developed in the European continent. Some time in the early eighteenth
century, European countries like France and Germany engaged in great codification projects. These
codes covered every area of law and were formulated as a systematic and deductive whole, much like
the axiomatic systems of mathematics. Judicial decisions were completely based only on the code.

Since Philippine jurisprudence, just as American jurisprudence, combines a codal and statutory
system of law, with judicial precedent, judicial reasoning avails both of conceptual ascent and
descent.

1. The Logical Distinction between Rules and Principles

Rules can normally be distinguished from principles in this manner. Rules usually are or are said to
be less general, more precise, conclusive in application, of canonical form, of first-order, and expressed
in non-evaluative terminology. Furthermore, they are said to lack weight, not conflict and include
exceptions. Principles, on the other hand, are or are said to be more general, less precise, prima facie
in application, without canonical form, of second-order, and expressed in evaluative terminology.
Moreover, they are said to have weight and to conflict. That there are differences between them is
undeniable; it is the explanation of these differences which is controversial.

24
See, for example, Donoghue v. Stevenson, [1932] A.C. 562, and the previous cases of Langridge v. Levy, 2 M & W,
519; 4 M & W, 337; Longmeid v. Halliday, 6 Ex 761; Winterbottom v. Wright, 10 M & W, 109; Goeorge v. Skivington,
L.R.S. Ex. 1.

22
Prof. Ronal Dworkin and Prof. Joseph Raz, in contrasting ways, each arrived at separate accounts of
the distinction. Each was able to capture basic linguistic intuitions about rules and principles which
can be backed up by evidence based on ordinary language. It is probably correct to say that such
evidence, though substantial, is conflicting and inconclusive. For ‘rules’ and ‘principles’ are used in
discourse of varying contexts, and though a number of characteristics can be roughly associated with
each concept throughout these contexts, disagreements may arise as to the significance of all or any
of these characteristics constituting a logical distinction between them.

Prof. Dworkin takes the manner of applying these rules as central to explaining the distinction. He
directs his attention to two related distinctions which he considers to be logical: “Rules are applicable
in an all-or-nothing fashion,” while principles are not; and “principles have a dimension that rules do
not—the dimension of weight or importance.”25

It is easy to picture the complete intuition communicated and the account of the distinction. It is the
intuition of a rule as a conclusive norm. Rules determine a logical space, their scope, over which they
reign supreme and are directly and conclusively applied. Hence they cannot conflict with each other
(either the case falls within the scope of one rule or another, or is beyond the scope of any extant rule),
but are each valid within their own scope, limited by exceptions. Hence too the need for canonical
form, the absence of evaluative terminology as well as the importance of precision and low generality
(all of which render it easier to determine scope). Principles, on the other hand, do not primarily
function to establish the logical space over which the principle is then applied, but to exert force, prima
facie force wherever they are relevant. Hence they have weight as they incline or influence a decision
one way or the other, and are expressed in evaluative terminology (for, in being value-laden, they have
weight and exert force). Since considerations of scope are secondary, precision is not at a premium;
neither is a canonical form necessary nor exceptions important. They can conflict and co-exist with
each other (since they do not conclusively establish logical space); and can function in a second-order
manner (their weight allows them to widen, narrow, or even render inapplicable rules, or help
formulate a new rule to cover a gap in the law). Finally, they are usually of high generality, greatly
unspecific as to the type of rules and acts they affect or influence.

Despite this account enjoying plausibility, I adopt Raz’s definition which is in terms of generality. I
do so for three reasons. First, it is able to account for the distinctions normally made between them,
including Dworkin’s distinctions. Secondly, it avoids some of the difficulties Dworkin’s account
encounters. Finally, it provides a better tool for analyzing legal reasoning in that it is less
presumptuous or more neutral.

Raz turns to a particular kind of generality, that of specificity of acts,26 as the only logical distinction
between rules and principles. That this is the only logical distinction between them is shown by the
fact that no inconsistency results if principles have any other characteristic normally associated with
rules and vice-versa. A principle, like “no man may profit from his own wrong” for example, is in

25
Ronald Dworkin, “The Model of Rules,” Taking Rights Seriously, 1978, pp. 24 and 26.
26
“The distinction between rules and principles of obligation both in law and outside turns on the character of the
norm-act described. Rules prescribe relatively specific acts; principles prescribe highly unspecific actions. Generic
acts, type of acts, are of various degrees of specificity. An act is highly unspecific if it can be performed on different
occasions by the performances of a great many heterogeneous acts on each occasion. It is more specific to the extent
of which there is only a small number of generic acts by the performance of which it is performed.” “Legal Principles
and the Limits of Law,” Yale Law Journal, 81 (1972), p.

23
canonical form and may be employed in an all-or-nothing fashion. As such, it is just as much a norm
as a rule is, whose precise scope can be spelled out (with the help of rules) and exceptions accounted
for. It is its generality, the fact that it applies to acts which are highly unspecific which makes it a
principle. Similarly, a rule like the prohibition on cruel and unusual punishment may have merely
prima facie weight and may conflict with other rules, if the rule applier is so minded. Moreover, it is
expressed in rather vague and evaluative terminology. It is the specificity of the acts to which it applies,
applying only to punishments, which confers upon it the status of a rule.27

Generality can also explain why all the other characteristics normally associated with either rules or
principles are attached the way we are. Since principles embrace in its wide scope a great variety of
heterogeneous acts, it is no wonder that many of them are expressed in evaluative terminology. Values
are highly unspecific and may describe or apply to acts of varying types. Similarly it is no surprise that
they are vague, have prima facie weight, and so on. On the other hand, rules being specific, it is more
likely to be precise, apply directly and conclusively, etc.

The observations that principles sometimes have conclusive force and that rules enjoy prima facie force
lead to the second reason for preferring generality as the key distinction. It avoids the difficulties
which Dworkin’s account experiences in explaining these observations. Other difficulties come to
mind. Since rules have conclusive force, they cannot conflict with each other and include all their
exceptions. That has the consequence of a legal rule being of enormous and unwieldy size.30 Finally,
rules conflict with each other in a way different from how principles conflict, and Dworkin overlooks
this. The conflicts between rules are settled in terms of their importance, either due to deontic force
or legal force; while the conflict between principles are settled by also taking consequences into
account.28

Finally, the Razian distinction avoids theoretical baggage which Dworkin’s distinction carries.
Dworkin’s distinction is linked too closely with the view that law is a moral enterprise, that legal
reasons are essentially moral reasons. The Razian distinction, on the other hand, does not prevent me
when necessary from referring to some legal principles as moral reasons, when they indeed are moral
reasons.

This does not, of course, conclusively decide the superiority of the distinction in terms of generality.
Dworkin’s account may in the end be justified by his conception of law, if it provides a correct or
superior conception.

2. Law as an Incompletely Theorized System

27
Dworkin attacks Raz’s distinction by claiming that Raz fails to specify his criteria for the heterogeneity of ‘generic
acts’ except by means of examples, which confuse rather than illuminate. (“The Model of Rules II,” Taking Rights
Seriously, p. 78). He cites that Raz considers keeping one’s promises to be a rule, which contradicts Raz’s own
distinction, since any act can be the basis of a promise. “‘Keeping one’s promises or covenants’ is indeed a principle
to Raz; it is keeping a particular promise which is a rule.” Raz’s example in “Legal Principles and the Limits of Law”
(at p. 829) talks of a conflict between keeping a promise and telling a lie, and clearly he has a particular promise in
mind. Dworkin’s second example concerning the legal protection of freedom of speech can be simply refuted. A
distinction must be made between that law directed to officials and to citizens. Raz has the latter in mind when he
takes freedom of speech to be a principle. Since acts expressive of freedom of speech are highly heterogeneous, the
law must be a principle, but a law instructing officials to protect freedom of speech is a rule. 30 Raz, supra., fn 17, 831.
28
Ibid., p. 833.

24
The legal system is not a coherent whole but has gaps. This is because it is incompletely theorized.
This occurs in conceptual ascent, from the levels of judgment to rule and of rule to principle. It too
applies in conceptual descent, from the levels of principle to rule and rule to judgment. Hence, there
are incompletely theorized principles, incompletely theorized rules, and incompletely theorized
judgments or outcomes.2930

As an example of incomplete theorization in conceptual ascent from legal judgment to rule, take the
case of Javellana v. Executive Secretary.33 In that case, the ratification of the 1973 Constitution, which
was made on the basis of votes from citizen assemblies, was validated by a vote of 6 justices to 4
justices. Four of the justices in the majority claimed that the question raised, whether the 1973
Constitution was validly ratified or not, was a political and not a justiciable question, and therefore
beyond the competence of the Supreme Court to decide. Consequently, their legal judgment was
based on the rule on the non-justiciability of the validity of a constitutional ratification. Two of the
justices agreed with the minority that it was a judicial question. They also agreed with the minority
that the ratification was not in accordance with the procedure prescribed by Article XV of the 1935
Constitution, the constitution then in force. Nonetheless, they argued that the question of whether it
should be deemed in force and effect because of the acquiescence of the people was political in
character. Hence, they based their decision on a different rule of law, this time on the nonjusticiability
of the efficacy of a constitution.

As an example of incomplete theorization in conceptual ascent from rule to principle, take the
prohibition in Art. III, Sec. 19 of the 1987 Constitution against cruel, degrading or inhuman
punishment. That may be based either on the principle of the sanctity of life or on the principle of
human dignity or decency.

Similarly, examples can be produced with respect to incomplete theorization in conceptual descent.
The same rule can give rise to different judgments. That happens when the law is not clear, and
therefore the rule can be interpreted in two different equally reasonable ways to apply to the situation.
Take, for example, the constitutional prohibition above against cruel, degrading or inhuman
punishments. On that basis, some judges will conclude that capital punishment is prohibited, while
others will disagree.

As an example of incomplete theorization in conceptual ascent from rule to principle, consider Art.
III, Secs. 2 and 3 of the 1987 Constitution on the mid-level rule against unreasonable searches and
seizures. Two distinct rules may be generated on this basis. First, evidence obtained by means of such
an illegal search and seizure may be inadmissible in evidence in any proceeding, which is the extant
rule. However, the Moncado doctrine,31 which was then in force prior to the extant rule, also follows
from that rule. It holds that the admissibility of evidence is not affected by the illegality of its seizure.
Instead administrative sanctions would be meted out against the erring legal officer. From this point
of view, that would be a sufficient deterrent against legal officers conducting illegal searches and
seizures.

29
Cass R. Sunstein, “Incompletely Theorized Agreements,” Legal Reasoning and Political Conflict, 1995, Ch. 2, pp.
13-34.
30
SCRA 30 (1973).
31
Moncado v. People’s Court, 80 Phil. 1 (1948)

25
Or take the principle on the criminal due process rights of the accused found in Art. III, Sec. 14 of the
1987 Constitution. An entire enumeration of rights protects him. Thus, “the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf.”

However, it is not necessary that his right to be represented by counsel, for example, is guaranteed in
order that his rights to criminal due process be respected. Admittedly, in the Philippines, this right is
guaranteed but in other jurisdictions, the accused may represent himself without counsel. He is only
given the opportunity to avail of counsel, which he has the right to decline. Hence, the same principle
may give rise to two different rules.

The view that law is an incompletely theorized system is consistent with the legal positivist view that
law has limits or has gaps. Indeed, incomplete theorization is their explanation for such a
phenomenon. Prof. Dworkin disputes this claim. To him, the law is a coherent and consistent whole.
It does not follow from this, however, that the determination of the content of law does not require
interpretation. In fact, he proposed his own method of legal interpretation, which he called
constructive interpretation. Using constructive interpretation, a theorist interprets law in its best moral
lights to form a coherent and consistent whole; this interpretation is completely theorized so that there
are no gaps in the law.

Whether Dworkin is right on this point, of course, needs further argument and elaboration, which
shall be accomplished on the chapter on Dworkin. This book, however, adopts the opinion of the
legal positivist who insists that the law has gaps or limits. Law therefore is incompletely theorized
and it remains for judges, by using conceptual ascent and descent, to fill up the gaps in the law.

III. THE OBLIGATION TO OBEY THE LAW

The problem of legal obligation is strictly part of legal theory, while the problem of the moral obligation
to obey the law is, more properly, part of political philosophy. The issues of legal and moral obligation
are related and legal philosophy is, as earlier mentioned, simply an aspect of political philosophy.

There is a correlation between authority and obligation. When an authority exists, there arises the
legal obligation to obey him. However, the obligation may merely be legal and not moral. When he
is legitimate or justified, it is then argued that the moral obligation to obey him follows. This poses
the question of whether an individual has, apart from the legal obligation to obey the law, a moral one
as well.

In the Platonic dialogue Crito, Socrates engaged in a lengthy discussion as to whether he had a moral
obligation to obey the law or not. He had only recently been convicted for the crime of corrupting the
youth, among others, and he was sentenced to drink the poison hemlock as his punishment.

Before the sentence was to be carried out, a few of his friends, Crito among them, visited him in prison.
They frantically and desperately attempted to convince him not to drink the poison, but instead to
escape. Socrates declined. He chose to be a martyr and he based his reason on a moral obligation to
obey the law based on three arguments.

26
The first argument was that of gratitude to the state. Because of it, he owed a duty to obey its laws.
Throughout his life, the state acted like his father and treated him as a son. He accepted all its benefits
willingly. It would be extremely disrespectful and ungrateful for him, now that he was nearing the
end of his life, to disobey the law simply because he did not agree with what the state had commanded
him to do.

He next advocated the argument from fair play. Each person receives benefits from the state. It would
be unfair for one of them to accept only the benefits and to refuse performing its burdens. That would
constitute an affront and an unfairness to his fellow citizens. He would be acting like a free-rider,
where everyone else does his share and he reaps the benefits while not contributing.

The third is the argument from consent. Throughout his life, a citizen has freely accepted benefits
from the state. He has even willingly participated in public and political affairs. At any time, he could
have left the state to join other city states. The state did not prevent him from doing so. Instead, he
chose to remain. In so doing, he impliedly consented to be bound by its laws.

There is a further argument, which Socrates did not elaborate upon. This is the argument from general
utility. Everyone in society would be better off if the citizens generally obeyed its laws. If the citizen
had a choice as to when to obey the state’s laws and exercised that freedom, then the consequences
for the state and its citizenry would be disastrous. Chaos and disorder would result. For the citizens
to obtain full benefits from the state, there must then be the recognition among the citizenry of a
general obligation to be bound by its laws and to be willing to comply with them.

There are of course theorists who claim that there is no such thing as a moral obligation to obey the
law simply for the reason that it is the law.32 The reasons mentioned above do not present sufficient
or compelling reasons for generating such an obligation. This is the most basic issue in the
philosophical problem of the obligation to obey the law, which should form part of a course on the
moral obligation to obey the law.

IV. LAW AND MORALITY

There are four basic problems with respect to the relation between law and morality, the conceptual,
the historical, the practical, and the enforcement problems. The last problem is the concern of this
topic of legal philosophy.

The conceptual problem concerns the question of whether there is a necessary and conceptual
connection between law and morality. This is properly an aspect of legal theory and is the central
debate between legal positivism and natural law theory. The historical problem is an empirical
question which investigates whether law causally affects morality and vice-versa. The practical
problem concerns the issue of what to do in order to reform the law, in order to make it a more effective
instrument in securing welfare and justice, for example. Hence, morality is used to criticize the legal
institutions and doctrines in society as a basis for the reform.

The fourth problem deals with the question: “Should the state enforce morality?” or “Should the state
punish sin or immorality?” Although some may answer this in the affirmative, such a response is not

32
See, for example, Joseph Raz, “The Obligation to Obey the Law,” The Authority of Law, supra fn. 3, pp. 233-249.

27
immediately obvious. For example, it would be considered unfair or impractical to jail students who
have cheated in their university exams or those who have engaged in masturbation.

A. Theories of Legal Enforcement

There have been proposed various theories for the law’s enforcement.

1. Liberalism: Harm Principle.

The principle which pays greatest respect and adherence to individual liberty and autonomy is
liberalism, which subscribes to the harm principle. Under this principle, an individual is free to do
whatever he wants so long as his conduct does not harm others. John Stuart Mill classic formulation
of the principle is as follows:

“That principle is, that the sole end for which mankind are warranted, individually or
collectively, in interfering with the liberty of action of any of their number, is
selfprotection. That the only purpose for which power can be rightfully exercised over
any member of a civilized community, against his will, is to prevent harm to others.
His own good, either physical or moral, is not sufficient warrant. He cannot rightfully
be compelled to do or forbear because it will be better for him to do so, because it will
make him happier, because, in the opinion of others, to do so would be wise, or even
right. The only part of the conduct of anyone, for which he is amenable to society, is
that which concerns others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own body and mind, the
individual is sovereign.33

‘Harm’ has been defined as involving the violation of the rights of others.

This principle covers the criminalization of behavior such as murder, theft or rape, but beyond these
crimes, the individual is free to do whatever he wants to in his pursuit of his own happiness. Hence,
he may, without fear of arrest, read pornography, watch naked woman dance on stage, or have sexual
intercourse with a prostitute. The last is considered a ‘victimless crime.’ No one is harmed; neither
the prostitute who has freely entered into the contract and earns some money in the process nor her
client who has experienced some pleasure and sexual release.

2. Liberalism: Offense Principle

Liberalism is not confined to the Harm Principle; it involves the companion Offense Principle. Under
this principle, the individual is free to do whatever he wants to do so long as his conduct is not offensive
to others. Hence, a citizen may not freely walk naked or engage in sex in a public park. Indeed, if he
performed the latter with his wife, he would then not be doing something immoral, only something
offensive to his fellow park-users. For that reason, such conduct will be prohibited on the basis of the
Offense Principle.

3. Paternalism

33
John Stuart Mill, On Liberty,

28
Under the theory of Paternalism, the state has the right to interfere with a man’s actions for that
person’s own good. In Mill’s words above: “He cannot rightfully be compelled to do or forbear
because it will be better for him to do so, because it will make him happier, because, in the opinion of
others, to do so would be wise, or even right.” Hence, individual liberty and autonomy is lessened to
a certain degree for the benefit of those whose liberty and autonomy has been limited. Many states
have enacted paternalistic laws, such as the “Seat-belt Law” in cars or the “Helmet Law” in
motorcycles.

4. Legal Moralism

Legal Moralism is a theory propagated by Mill’s rival in moral debate, James Fitzjames Stephens.
Indeed their debates have been duplicated by H.L.A. Hart in the late 1950s, who advocated a form of
liberalism, and Lord Patrick Devlin, who criticized his liberal views. According to Lord Devlin,
society enjoys a shared or common morality which binds or cements it. Society therefore has an
interest in protecting or preserving its morality, insofar as doing so serves to maintain its existence.
Consequently, immorality is likened to treason. Just as the state has the right to punish or take steps
to forestall treasonable activity, so it may regulate or prohibit immorality particularly when such
conduct endangers the existence of the state.

5. Perfectionism

Finally, there is the theory of Perfectionism. This was elaborately propagated by Aristotle, which St.
Thomas Aquinas then developed and Christianized. Under this theory, the state has the right to
interfere with a man’s actions in order to make him a morally better person, to inculcate virtue, to
uplift and enrich his life. This provides the rationale for constructing public museums or libraries, for
example.

B. Specific moral issues

These five theories provide the main theories that are studied in a course on law and morality. From
this theoretical perspective, meaningful discussion of various ethical issues may then be critically
examined. Issues in such a course normally concern sexual issues, such as pornography, prostitution,
adultery, pre-marital sex, homosexuality and lesbianism, abortion, contraception, and the like. But it
will also involve other ethical issues, such as gambling, drug-taking, suicide and euthanasia, and
punishment. Indeed the latter topic merits its own special treatment, and can encompass a course in
its own right.

V. RESPONSIBILITY AND PUNISHMENT

A. Responsibility

The state assumes its citizens to be autonomous individuals and hence to be responsible for their acts.
Consequently, they should be held liable or accountable for acts which cause physical, psychological,
economic harm or damage to others. The areas of the law which deals with such matters are the
Criminal Law and Tort Law.

1. Criminal Law: Intent

29
Criminal Law punishes individuals for acts they intentionally, as distinguished from negligently or
inadvertently, committed. Consequently, a criminal act is composed of two elements: the actus reus,
the wrongful, guilty, or criminal act, and Mens rea, the wrongful, guilty, or criminal mind, otherwise
known as criminal intent. No crime is committed unless these two elements are present.

There is an exception, however. This involves cases of gross negligence or reckless imprudence. In
this type of situation, the accused, strictly speaking, did not intend to commit the wrongful act.
However, he acted with such gross negligence or reckless imprudence that the act resulted. In this
type of situation, the state proceeds under the fiction that his act was so negligent that, for all intents
and purposes, he practically intended the act. The damage done was foreseeable and he should be
held liable for the act which caused the damage.

Philippine Criminal Law penalizes acts of this sort in Article 365 of the Revised Penal Code, which
states: “Any person who, by reckless imprudence, shall commit any act which, had it been intentional,
would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to
prision correccional in its medium period; if it would have constituted a less grave felony, the penalty
of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a
light felony, the penalty of arresto menor in its maximum period shall be imposed.”

2. Tort Law: Negligence

For cases of simple negligence or imprudence, there is tort law. Article 2176 of the New Civil Code
defines tortuous acts. It states: “Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no
preexisting contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.”

In both criminal and tort law, the concept of causation is essential. This is because an individual must
be held liable or accountable only for harms which he has caused. It would be unfair to hold him
liable for harm which he did not cause.

Once individual responsibility, and thus liability or accountability, has been determined or established
for a criminal act, the accused will then have to stand trial and, if found guilty, he will be punished.
There are various theories of punishment, both with its respect to its nature and its severity.

B. Theories of Punishment

1. Retributive Theory

The classical justification for punishment is the Retributive Theory. Under this theory, it is but just
that the criminal be punished, for he deserves the punishment he gets. In other words, it is morally
appropriate that a person who has committed a wrongful act should suffer in proportion to the
magnitude of his wrongdoing.

The retributive theory treats punishment as a good in so far as it is merited. It is a backward-looking


theory as it looks at the past to determine whether punishment is merited. Other justifications of
punishment are forward-looking in character in that they are justified on the basis of the good
consequences resulting from punishment. Under these justifications, punishment is considered an

30
evil, and not a good as the retributive theory claims. This is because punishment inflicts pain and
suffering which individuals normally dislike, shun, or avoid. The next justifications of punishment
are thus consequential or utilitarian forward-looking theories in character.

2. Utilitarian Theories

The deterrence theory maintains that the punishment of a wrongdoer is justified by the socially
beneficial effects it has on other persons; the punishment deters wrongdoing that may be potentially
committed by persons who would otherwise commit wrongful acts. The preventive theory is justified
insofar as it prevents that person from committing wrongful acts against society during the period of
incarceration. The rehabilitative theory justifies punishment in virtue of the good effect that it has on
the moral character of the offender. In curing or rehabilitating him, he is less inclined to perform
similar wrongful acts. Under the restitutionary theory, the principal purpose of punishment must be
to make the victim whole to the extent that this can be done. The point is not that the offender deserves
to suffer; it is rather that the offended party deserves compensation.
Finally, there is the condemnation theory, which justifies punishment as an expression of society’s
emphatic revulsion, disgust, or disapproval of the said prohibited behavior. If society did not express
its feelings in this manner, there would be no catharsis or no closure to the gruesome episode felt by
the victims of the crime and society in general, which is the beneficial effect of the punishment.
Moreover, society has to communicate to the rest of society how abhorrent, revulsive, or abominable
it considers such behavior to be. Apart then from the consequential benefits of this theory, there exists
the symbolic or expressive element of condemnation or disgust to this theory.

VI. LEGAL CONCEPTS AND DOCTRINES

The topic on legal concepts and doctrines investigates particular concepts and doctrines in a legal
system, which are common to all legal systems. These concepts and doctrines form the most important
and essential subject matters of the law and a philosophical inquiry into it will enable the student to
have a clearer understanding of law in its entirety. For these legal concepts have rational foundations
or presuppositions which the course will explore. Thus, these legal concepts will be studied as it has
developed throughout history, from its Greek or Roman origins, through its development in Canon
or Church Law, through the Common Law period, through the European codification period, up to
the present day.

It is here where conceptual analysis is at a premium, for that is the main method of study. Concepts
and doctrines such as contracts, rights, liberty, property, possession, torts, intent, responsibility,
punishment, act, cause, the state, marriage, family, sales, partnerships, corporations, and the like will
be explored and analyzed.

This course is ideal for an entire separate course. It may serve as an introductory course to law. As
far as I know, no course of this type is being taught in the various colleges of law in the Philippines.
However, I have handled the course in Legal History in the U.P. College of Law and treated it like a
course in legal concepts and doctrines. A similar course of this type is the course offered in the
University of Oxford, called the Rational Foundations of the Criminal Law, wherein I attended some
of its lectures. A course on the foundations of the Civil Law was also offered.

VII. BACKGROUND PHILOSOPHICAL ISSUES

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As previously stated, legal philosophy is but a part of political philosophy. There were periods in the
history and development of legal philosophy where background philosophical issues dominated
jurisprudential discussion and were actually the focus of fiery and lively debate in law schools. First
came the Classical, Scholastic, and Modern Periods in philosophy where the focus of interest was
justice in terms of natural law and natural rights. In the Contemporary Period of philosophy arrived
the debate in political philosophy between liberals and communitarians. Finally the opposition in
general philosophy between the European Post-modernist Movement and Anglo-American analytic
philosophy followed.

A. The Issue in Moral and Political Philosophy: Political Obligation

For nearly two millennia, the central question of philosophy was the nature of justice. Justice served
as an absolute standard by means of which all laws were then measured. Another name for Justice
was Natural Law, which was a universal, objective, moral law decreed by the heavens, written in the
hearts of men, discoverable by reason, eternal, immutable, and served as a higher law.

Consequently, debates regarding the content of this Natural Law were engaged in by various
philosophers. Some were skeptical and insisted that all laws were made by convention. Others swore
to the existence of such a law.

The problems of the moral obligation to obey the law as well as the justification of authority were
discussed and resolved by means of it. The status quo was justified by and revolutions were fought
for it.

I will discuss the problem of justice in Part II of this book, where various theories of natural law will
be dealt with. Germane to the discussion and inquiry will be the issues of justice, the moral obligation
to obey the law, and the justification of authority.

B. The Issue in Political Philosophy: Liberalism and Communitarianism

The debates began when the radical legal theorists formed some sort of loose movement composed of
lawyers sharing a common perspective, started organizing conferences, and publicized its ideas,
particularly the ideas of the Critical Legal Studies Movement. As previously mentioned, Critical Legal
Studies challenged the liberal philosophy of the earlier orthodox theories. To fully understand its
challenge as well as its philosophy of law, there must be an excursus into the debate between liberalism
and communitarianism, the political philosophy and ideology of Critical Legal Studies.

The elements of liberalism are as follows. First it subscribes to individualism, which holds a view that
is midway between the assertions that individuals matter and that only individuals matter. Indeed,
the former appears to be trite, while the latter appears to claim too much. Other political ideologies,
socialism or communitarianism in particular, also subscribe to a position midway between these two
extreme views, so this depiction of liberalism is not very instructive. The difference perhaps between
them is in terms of emphasis.

In any case, individualism posits that only individuals have values and ends, and it is these values and
ends which ultimately do matter. Another way of pointing out the contrast is that to the liberals, the
individual comes before the community, while for the communitarian, the reverse is true.

32
Secondly, liberalism, as its name implies, values liberty. Consequently, it aims to provide the
individual the maximum amount of liberty, compatible with a like liberty for all, within society.
Liberty trumps other values, such as equality, even if this too is highly valued. Each individual human
being is unique and valuable in his own right, and he may not be sacrificed for the common good. He
is of equal worth to any other individual. His dignity and integrity must be honored and respected.

Moreover, the individual enjoys autonomy. He is self-governing, the master of his soul or the captain
of his ship. He exercises a form of self-rule where he is allowed to decide for himself what is best for
himself, to fashion a life in accordance with his best lights, without interference or coercion from the
state.

Respect for the individual’s liberty, equality and autonomy is satisfied by means of guaranteeing and
protecting his rights, such as in a bill of rights, which provides constraints upon other people and the
state as to how individuals are to be treated.

The rule of law is another important principle of liberalism. It is to be maintained vigorously so that
the law must be followed and complied with without fear or favor. No individual stands above the
law, not even the political leadership who is as much bound by the law are as the citizens. This
limitation on their power stands as a guarantee that power will not be exercised to infringe the rights
of the individuals.

Finally, liberalism subscribes to capitalism or market economy, an economy wherein the means of
production are owned and controlled by the individuals and not the state. Each individual is
economically free to pursue his own happiness and wealth, and there exist minimum restrictions as to
how he can use his property and wealth.

If we would place all the political ideologies in a spectrum, where the radical ideologies like Marxism
would be on the extreme left and the most status quo ideologies, like Fascism or Totalitarianism,
would be on the extreme right, liberalism would be situated slightly left of center, while socialism and
totalitarianism a little further left, with conservatism plumb on the middle and to the right.

Nowadays, however, political ideologies and philosophies are no longer contrasted in that manner.
Liberalism is to be contrasted with all other ideologies. Liberalism subscribes to the doctrine that
“governments must be neutral to what might be called the question of the good life. This is consistent
with the harm principle of Mill and in fact can logically be derived from it, as elaborated upon above
in Section IV on law and morality. The other political ideologies, in contrast, suppose that government
cannot be neutral on that question, because it cannot treat its citizens as equal human beings without
a theory of what human beings ought to be.”34

Under this definition, liberalism is to be contrasted with perfectionism, which maintains that the state
has the obligation, not just the right, to make its citizens moral or virtuous. Indeed, it is to be
contrasted with all other ideologies, including communitarianism, which is to be associated with
radical legal theory. Indeed the proliferation and attraction of radical legal theories is that the latter
subscribed to communitarianism, which pays greater homage and importance to the community.
Thus, underlying the arguments of the radical theories is the claim that this political philosophy
represents a better philosophical and ideological vision of what society should be and that all legal

34
Ronald Dworkin, “Liberalism,” A Matter of Principle, 1985, p. 191.

33
theory must proceed from that philosophy and ideology. In any case, it repudiates liberal legal theories
and argues that it is time for a change of perspective.

There have been throughout its history various kinds of market economy liberalisms. The first was
the Classical Liberalism of John Locke and Adam Smith. They postulated a maximum laissez-faire
theory where property rights were given prominence and where there was minimum interference by
the state as to economic matters. This laissez-faire, however, soon gave rise to a massive imbalance
in wealth, so that there arose the welfare liberalism of John Stuart Mill, John Maynard Keynes and
John Rawls. Under their theory, the individual is to be supplied with a minimum amount of goods in
order for him to maintain a standard of living commensurate with his dignity. His status as a human
being demanded that he be supplied with the minimum conditions of a decent existence and that he
be afforded the opportunity to be a contributing, useful, valuable, and fulfilled member of society.
Consequently, wealth was allowed to be redistributed from the advantaged to the impoverished in the
form of taxes, among others schemes. The response to this was the NeoClassical Liberalism of
Friedrich Hayek, Robert Nozick, and Milton Friedman, who introduced economics which again
favored economic freedom and property rights.

This was the political and economic situation which necessitated an internal re-evaluation of liberalism
and the constructive development of communitarianism. No account of the radical theories, therefore,
can be understood and fully appreciated without a background analysis of the debate and the
conditions which gave rise to it. Although the issue between liberalism and communitarianism does
not merit a standard course of its own, it is perhaps the single most important issue in political
philosophy today with monumental repercussions in the philosophy of law. Only the debate relevant
to the study of legal theory will be studied and explored in the course however.

C. The Issue in General Philosophy: Postmodernism

Post-modern philosophy reacted to the modernist ideas dating back to the period of Rene Descartes,
with his emphasis on foundationalist knowledge together with the claim that cognitive knowledge is
possible. The four ideas which characterized Modernism are as follows:

“(1.) Reality is extra-linguistic; language primarily represents reality. (2.) Human


reason is universal and univocal; it can understand itself, its structure and limits. By
working objectively, logically, and systematically, from first premises, empirical or
rational, known certainly to be true, humans may acquire genuine knowledge of
reality. (3.) History is moving toward a telos; humans can purposively shape history.
(4.) Moral obligations arise out of neither simple power relations nor mere tradition,
but rather a natural moral law available to reason, the autonomy of a rational will,
natural moral sentiments, social utility, or self-interest. Human societies are best
understood not as given organic unities but as systems of alterable relations among
autonomous persons who are abstractly understood, free and equal.”35

In contrast to these ideas, the Post-modernists arrived at the following doctrines, which were intended
to address the failures of modernism.

35
David A. Reidy, “Postmodern Philosophy of Law,” The Philosophy of Law: An Encyclopaedia, Vol II, 1999, p.
668.

34
“(1.) Language constructs rather than mirrors reality; (2.) Human reason is neither
universal nor univocal, varying within and among cultures relative to distributions of
social power, material conditions, and ideological commitments. Human reason
seems unable to know finally its own structure and limits. (3.) History transcends
human agency and moves discontinuously toward no particular end. Science does not
emancipate but rather enslaves persons in new ways. (4.) The rationalization of
politics yields irrational bureaucracies. Democracy puts in play its own disciplinary
forces. The rule of law and other essentials of modern legal institutions do not always
secure and often work against freedom, equality, and substantive justice. By the late
twentieth century, intellectuals, artists, and activists increasingly rejected the great
modernist meta-narratives (for example varieties of liberalism, positivism,
hegelianism, marxism), emphasizing the inadequacy of the modernist conception of
the human being as knower and agent, the tendency of modern projects to terminate
in ironic reversal, and the violence worked on marginal groups by a totalizing
modernist rationality.”

This contrast in approach gave rise to the Post-modern philosophy of law which criticized mainstream
liberal theories and introduced new and astounding insights into the subject matter. Its most serious
challenge, perhaps, lies in the possibility of theorizing, which gravely imperils the reliability of all
attempts at theorizing law. Unlike the Critical Legal Studies Movement, however, the Post-modern
philosophy of law has not made much inroads into the field. Their influence, rather, is felt in the ideas
of the Critical Legal Studies Movement and Radical Feminist Legal Theory. Consequently, the issue
between Modernism and Post-modernism as well as the elaboration of Post-modern philosophy of law
will not merit extended treatment.

VIII. THE RELEVANCE OF PHILOSOPHY

The study of legal philosophy, as discussed in this book, has relevance both for philosophers and for
lawyers.

A. For Philosophers

The relevance to philosophy students or philosophers being evident, discussion of it will be brief. In
fact, there is no need to justify the subject to a philosopher as he automatically assumes it to be relevant
for his purposes. Its relevance is in terms of method and content. The methods of conceptual analysis
and rational justification are tools that a philosopher must acquaint himself with in order to be a
competent philosopher. Hence the application of those methods with respect to problems about law
will hone his philosophical skills. As to its content, the philosophy of law belongs to the broader
category in philosophy known as social and political philosophy.

B. For Lawyers or Aspiring Lawyers

The study of legal philosophy has relevance not just for philosophers but for lawyers as well. Whereas
the relevance of legal philosophy to philosophers can be taken for granted, it cannot be so with respect
to lawyers or aspiring lawyers. In fact, lawyers have expressed distrust, if not disdain, for legal
philosophy. Isn’t it A. V. Dicey who once remarked: “Jurisprudence stinks in the nostrils of the
practicing barrister.”?

35
Indeed, this attitude to legal philosophy is due to the fact that it has no immediate practical relevance.
Law students may acquire sufficient knowledge of the law to pass the Bar exams and to be skilled
practitioners of the craft with only a modicum of an acquaintance with the issues in the philosophy of
law. A law student, for example, who is taking a law exam or a lawyer who is about to write a pleading
or argue a case in court need not concern himself with deep and abstract philosophical questions. He
simply takes them for granted and proceeds directly with the issue at hand. To paraphrase Aristotle,
he would do well to aim only for that degree of precision and profundity as the nature of the proceeding
requires. To do otherwise is to risk offending the professor or judge, who either may consider his
observations irrelevant, fail to understand or appreciate them, suspect him to be bluffing or assume
him to be a charlatan or a pompous fool.

This does not mean, however, that because an activity is not immediately relevant, it has no relevance
whatsoever. Professor G. H. Hardy, once remarked, with respect to pure mathematics, that an abstract
idea, although perhaps not of immediate practical value, may nevertheless be of ultimate importance.36
Professor Whitehead presupposed that idea when he showed how an abstraction or large
generalization can have greater practical relevance, maintaining that it “is the large generalization
limited by a happy particularity, which is the fruitful conception.”37

What is true of mathematics is no less true of philosophy in relation to law. Sir Francis Bacon, the
former Lord Chancellor of England, once noted the disparity the philosopher’s interest in an abstract
and ideal law and the lawyer’s preoccupation with concrete, existing law, thereby implying the need
to supplement the lawyer’s narrow and confined outlook by the philosopher’s wider and deeper
perspective in the proper understanding of law.

“All those which have written of laws, have written either as Philosophers or Lawyers,
and not as Statesmen. As for the philosophers, they make imaginary laws for
imaginary commonwealths, and their discourses are as the stars, which give little light
because they are so high. For the lawyers, they write according to the States where
they live, and what is received by the law and not what ought to be law. . . .”38

A little more than two centuries later, another equally renowned philosopher and lawyer, the
utilitarian philosopher Mr. Jeremy Bentham, developed and elaborated upon this theme, by means of
a picturesque metaphor.

“Between us two might the philosopher and lawyers say, there is a great gulph. I have
endeavoured to throw a bridge over the gulph: so that on it, as on Jacob’s Ladder, if
not Angels, man, however, may continually be henceforth seen ascending and
descending.

The Lawyers immersed in the muddy ditch of particulars scarce dares to think of
mounting to the regions of Philosophy. The philosopher delighted and captivated by
his generals, deigns not to sink into the gross world of law. . . .

36
G. .H. Hardy, A Mathematician’s Apology, 1941, p. 60.
37
A. N. Whitehead, Science in the Modern World, p. 46.
38
Sir Francis Bacon, “The Advancement of Learning,” II Works, p. 539 (Maller, ed.).

36
Philosophy for want of more substantial stuff spinning with Cobwebs— Jurisprudence
piling up in wide confusion a huge heap of odds and ends for want of spinning. Should
I be found so happy as to succeed in bridging these celestial artisans into a more close
acquaintance, what a rich and serviceable manufacture may not be hoped for and from
their united labors.”39

Indeed, the immediately foregoing has been nothing but an extended argument justifying the
nontriviality as well as the general importance and relevance of philosophy to law. It remains only to
direct the argument specifically towards the concerns of lawyers and aspiring lawyers. Its relevance
to them is twofold: in terms of being a better lawyer and in terms of being a better human being.

A. A Better Lawyer

A course in the philosophy of law enables a lawyer or aspiring lawyer to be better in his profession
because it will enhance his skills and deepen his understanding of the law. Analysis is a skill that is
required of lawyers, who engage in it when they interpret legal materials. Thus, lawyers in practicing
law have been likewise engaged in the practice of analyzing legal concepts like rights, duty, possession,
intent, act, cause, etc.

The difference between legal analysis and general philosophical analysis is simply that in the former
attention is paid, not to the ordinary use of the concept in ordinary contexts, but in its use in legal
contexts. Moreover, the depth of analysis is simply carried further in the latter. Hence, when a lawyer
applies the latter method, he simply directs his focus on legal textbooks, statutes, judicial opinions, or
legal materials while engaged in the legal analysis of concepts. As a result, the insights a lawyer gains
when applying this method will enhance immeasurably his understanding of these concepts and of
law.

Even the skill of rational justification has practical value. For rational justification is nothing but the
use of moral and other persuasive arguments in justifying one’s position towards normative issues.
This skill can be applied to the legal context, since moral and persuasive arguments are definitely
important ingredients in courtroom advocacy and in adjudication.

B. A Better Human Being

A deeper understanding of normative issues in the philosophy of law, like justice, liberty, the rule of
law, punishment, the obligation to obey the law, etc., will also help a person become a better human
being. But he becomes a better person not in the same way a religious sermon or a session with a
psychiatrist enables him to be one. It is not the role of philosophy to give a lawyer spiritual solace or
practical advice. Rather the function of philosophy is to give him a better rational understanding of
certain normative issues. Of course, this does not automatically translate to wiser choices as a human
being. For, with due respect to Socrates, knowledge is not necessarily virtue. However, an
understanding of these issues in the form of knowing the myriad and complex arguments for and
against a given position is definitely invaluable in making any rational choice involving these issues.

39
Jeremy Bentham, Elements of Critical Jurisprudence, pp. 14-16. (on file with Box 27 University College Collection,
London).

37
No less that St. Luke in the New Testament remarked: “Woe unto you also, ye lawyers! For ye lade
men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your
fingers.” Shakespeare did not spare the profession either, as he suggested in Henry VI: “The first thing
we do, let’s kill all the lawyers.” Jonathan Swift in Gulliver’s Travels, engaged in an extended vicious
diatribe against lawyers.

“In all points out of their own trade they were the most ignorant and stupid generation
among us, the most despicable in common conversation, avowed enemies to all
knowledge and learning, and equally disposed to pervert the general reason of
mankind in every other subject of discourse as in that of their own profession.

Jean Giradoux, in Tiger at the Gates, put it this way: “There’s no better way of exercising imagination
than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth.” Then,
in The Madwoman of Chaillot, he added: “You’re an attorney. It’s your duty to lie, conceal and distort
everything, slander everybody.”

This popular belief is also evidenced by the many, sometimes cruel, jokes made at the expense of
lawyers directed at their lack of morals. One such joke concerns the difference between a lawyer and
a sperm. It is said that a sperm, as distinguished from a lawyer, has at least one chance in hundreds
of millions to become human. If somehow this essay manages to increase the chances of lawyers to
become human so as to equal or even to surpass by a fraction the chances of a sperm, then the author
will be one with Benjamin Franklin in exclaiming: “God works wonders now and then:/ Behold! A
lawyer, an honest man!” And he will consider his efforts to be infinitely rewarded.

IX. CONCLUSION

The practical benefits of this course, in enabling aspiring lawyers to become both better lawyers and
better human beings, is only incidental. Its central purpose is to allow the law student a deeper and
clearer understanding of the nature of legal reasoning. Thus, this course, although it will touch
occasionally on the other subject matters of legal philosophy, will focus mainly and primarily on this
one topic: the nature of legal reasoning, as the book discusses the various theories of legal reasoning.

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Cotterrell, Roger, “Legal Philosophy in Context,” The Politics of Jurisprudence, Ch. 1, pp. 1-20.
Davies, Margaret, “Asking the Law Question (What is it?)”, Asking the Law Question, 2002, Ch. 1, pp.
32.
Dias, R.W.M., “Introduction,” Jurisprudence, 1976, 4th Edn., Ch. 1, pp. 1-32.
Dworkin, R.M., ed., “Introduction,” The Philosophy of Law, 1977, pp. 1-16.
Fernando, Emmanuel, “The Relevance of Philosophy to Law,” Philippine Law Journal, Vol. 73, No. 1,
September 1998, pp. 1-54.
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Freeman, M.D.A., “The Nature of Jurisprudence,” Lloyd’s Introduction to Jurisprudence, 2001, 7th Edn,
Ch. 1, pp. 1-38.
Golding, Martin, “Introduction,” and “The Nature of Law: Problems,” Philosophy of Law, Chs. 1 & 2,
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Hart, H.L.A., “Persistent Questions,” The Concept of Law, 1961, Ch. 1, pp. 1-17.
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