LAW: ITS Meaning and Concepts Lawyers: What is the law applicable to a given issue?

Philosophy of Law: What is law? Law- unique socio-political phenomenon, with more or less universal characters that can be discerned through philosophical analysis. General jurisprudence-meant to be universal; assumes that law possesses certain features, and it possesses them by its very nature. Reasons why the philosophical interest in elucidating the universal characteristics of law remain to be explained: 1. There is a sheer intellectual interest in understanding such a complex social phenomenon. 2. Law is also a normative social practice which purports to guide human behaviour giving rise to reasons for action. 3. Law is not the only normative domain. Our culture, morality, religion, social conventions, etiquette and so on also guide human conduct similar to law. Philosophy of law as a discipline directly deals with the different definitions and the very nature of law. It provides a reflection on what is right and ideal. Theories were presented to explain the nature and concepts of law.

LAW Comprehensive sense- Law means any rule of action or norm of conduct applicable to all objects of creation. Specific sense- Law means a rule of conduct, just, obligatory, promulgated by legitimate authority and of common observance and benefit. LAW, MORALS and CUSTOMS Law is but one of the methods of regulating human conduct. Standards of morality also serve as social regulators. Morals- aggregate of all the rules of human conduct growing out of the collective sense of right and wrong in the community. The field of morals include not only duties of man to his fellow beings but also to himself and to his God. An act may be in conformity with law but contrary to morals and vice versa. What is moral may not be legally demanded. Morals may be sources of law but morals and laws are two different concepts. Customs- refer to those that are habitually done in the community. They are far less imperative in their force than law for they do not normally imply ethical evaluations. Primitive law is customary law wherein its sanction lies in habit. However, with the advances of political organization, customary law begins to break down rapidly. As with morals, customs may be sources of contemporary laws. LAW and its CONCEPTS Rule of Conduct- the law mandates what is right and prohibits what is wrong. It serves as a guide to right the conduct of people It is a form of social control over the behaviour of individuals in a given society. Objective: The maintenance and preservation of order in society and promotion of common good.

Just- the law commands respect and observance the law is in accordance with reason

It applies equally to all persons in society

Obligatory- no one is above the law. The law binds the human will Enacted by a Legitimate Authority- for the law to become binding - Holds true for positive law as the laws are established and promulgated by competent authority - Holds true for natural law as the laws are revealed through reason as established and promulgated by the Author of nature and imposed upon all men Common good- the end of law The law must guide and enable man to reach the perfection of his nature as a free and rational being not merely as an individual but as a member of a social unit, - The law seeks to attain collective wants and needs NATURE OF LAW Proponents Historical View Basic Concepts Interested in the origin of law and its growth and development Concerned with the causes in the growth and development of law Custom is a necessary influence to the existence of formal or positive law Less concerned to the law as sovereign command and are more interested in what the people perceive as right or wrong The law should be available to the collectivity so as to generate an attitude or general obedience.

(Savingy) Custom is the real produce of a sound law. Law is a spontaneous Freidrich emanation from the spirit of the people Karl Von Savigny Volkgeist (folksoul)- the law constitutes the soul or spirit of the people that permeates the members of the community in common. Law in direct relationship with life or national development of the people Law as having been created on the principles of right and good The law is always right The law could be used by political authority as a means of achieving goal form promoting social justice and the common good Law is conceived by human reason St. Thomas The law is an ordinace of reason for the common good made by him who has a care for Aquinas the community and promulgated (Aquinas) The yardstick for testing the validity of law should be in accordance with the rule of right and reason for the common good. Concerned with the creation of an ideal system of law based upon ethics and justice. The public welfare or the common happiness is the first concern of the people. The law is ordained for the sake of the common good and happiness Concerned with the examination and analysis of the legal system, its process and objectives Jeremy Bentham All laws should be examined to determine whether in their enforcement they would promote the greatest happiness of the greatest number of people in society. (Bentham) Greatest happiness principle- measure of the value of the law Jurisprudence- used to analyze and censure the law Usefulness of law is to be measured in terms of their effectiveness, enforcement and result of their application (Bentham) Law is a sovereign command from superior to inferior, enforced upon those people who do not obey. (Austin) Austin is an advocate of positive law

Teleological View

Positivists or Analytical View

John Austin

Somewhere in a political society, legal power must be in some person or persons who are accustomed to obey. (Bentham in agreement with Austin) What is important is the element of power and authority of the law The nature of the law is that it is objective Command theory of law-the law is the totality of jural rules and principles consciously set by men in the state as political superiors, to men as political subjects and enforced by material sanctions Essential attributes of law: conscious creation, generality and authoritative enforcement Functional View Roscoe Pound Emphasizes what the law does and how it functions Gives primary importance of the functions of the judicial system which is expected to settle the conflicting interests of men Interprets the law as one possessing policy value essential in attaining mens maximum wants with a minimum of social conflicts Law as a result of what the judiciary or an administrative institution does to balance competing interests in the society that they will be able to enjoy equality of a legal justice (social engineering) Law as a living thing Development of law is interrelated with the social environment in which it grows Social phenomena of facts in relation to their actual effects in the community The binding force of law is based on social interests Law should be treated as social mechanism for the engineering and adjustment of conflicting interests Law is continuously engaged in the process of reconciling and of settling conflicting wants, claims and demands Goal: To secure a maximum number of social interest with the minimum of friction and waste Whether or not the law is verifiable in the practical life of the people Starting point: All of reality or actual experience In inquiring what the law is about, one must seek to define law as the prediction of what legal officials do. (Holmes) Interested in empirical examination as examination of how law in fact is operated in specified legal systems. The life of the law has not been logic, it has bee experienced. (Holmes) Legal cases are best understood as the application of rules (Holmes) The law is the individuals decision and not a system of general rules and principles as there can be no certainty in the judges decisions.

Realist view Justice Oliver Wendell Holmes Jr.

Policy Science View

Professor Views law in the context of the basis and limits of effective global, regional and Harold D. national legal orders in relation to social values. Laswell and Professor The law can truly be an instrument of global, national and regional control when it Myrer S. is committed to the complete achievement of the social values that constitute the McDougal professed ends of democratic societies. Law is an advocacy of consistent, compatible and principled policies, legislation and decisions on the basis of social values. The law is a vital instrument for ordering conduct through the formation, clarification and realization of the social values where the patterns of authority are conjoined with the patterns of control. Evegny V. What does the law protect? Pashukanis Considers a socio-class regulator expressing that the state shall be raised to the level of law, of the economically dominant class. The economic organization of society is determined by commodity exchange and that the law constitutes a superstructure reflecting the economic organization of society. In the finally achieved state of communism, law and the state will whither away.

MarxistLeninist View

LAW: CLASSIFICATION AND SOURCES General Classification Jural Law Particular Sense -law refers to statute i.e. enactments of the legislative branch of the government. Statutes consists of its purpose, specific provisions on specific situation with incentives as well as penalties Natural Law -considered as the ultimate source of every type of law -a system of rules prescribed by divine inspiration to all men not to any formal promulgation but by an inward impression upon the human heart and those rules attained by the light of natural reason and understanding Nonjural Law

-could also refer to rules, regulations and opinions of government instrumentalities and agencies Collective Sense Divine Law - refers to the bulk of specific or particular laws -rule governing things as it exists in God the ruler of the relating to one subject matter or when it relates universe. to laws obtaining in a given society. -law of religious faith and concerns itself with the concept of sin and salvation, of life and death, of the temporal and the E.g. Penal laws, laws of the Republic of the eternal. Philippines Cannon law- the law of the medieval Roman Catholic Church which remains to be enforced by the Vatican Abstract Sense Moral Law

-when it is mentioned without reference to a -that set of rules which establishes what is right and wrong definite article preceding it or when it is preceded as dictated by the human conscience and as inspired by the by the definite article. Eternal law. -defined as the totality of social norms regulating the human activity growing out of the collective consciousness or public sense of right and wrong of the people -arises from conscience and applies to out higher faculties Physical Law -The universal rule of action governing the conduct and movement of things which are non-free and material. -Laws of physical science -Maintains that there is uniformity of action or order of sequence in the course of nature. E.g. laws of gravitation

Aquinas Classification 1. 2. 3. 4. Eternal law-Gods plan for the universe Natural law- part of eternal law in which humans participate by their reason Divine law- Gods direct revelation to humankind through the scriptures Human law-particular determinations of certain matters arrived at through the use of reason from the general precepts of the natural law.

Traditional Classification Public and Private law- are substantive law as they refer to the substance of rights and obligations Public Law Private Law Concerns the government, the rights and obligations Concerned with the rights and obligations of individuals of a citizen vis-a-vis the government and the with other persons and entities and claims that may be relationship among nations pursued in instances of injury among person, property and reputation as well as breach of a valid obligation Constitutional law Tort Law -the basic charter of a nation that defines the powers of government and the rights of its people. -includes the constitution and the interpretations made by the highest court of the land Administrative law -are the issuances and regulations of a department under the executive branch for effective implementation of the law germane to the department Criminal law -an obligation that arises due to an action of a person who causes injury or wrong upon another -tort is generally unintentional Property Law - Deals on ownership and use of real or personal property - Governs disposal, lease and encumbrances of property. Contract and Business Law

-defines offenses that cause harm upon society as well -covers the rights and obligations of individuals or entities as penalties for commission that enter into contracts such as partnership, insurance, negotiable instruments law and transportation Contract- considered as law between parties International law Corporation law -concerned with the relationship among nations, -provides for the establishment and operation of international trade and disputes including war and its companies registered under SEC conduct -defines the rights and obligations of stockholders, board of directors and officers Inheritance Law -governs the transfer of property upon the death of the owner -specifies the rights of successors and requirements for a valid will Family Law -consists of provisions defining the relationship between spouses, parents and children, marriage, annulment and legal separation

Sources of Law Constitution and Administrative Rules Constitution-the basic charter of the nation -defines the form of government, the functions of the branches and reflects the belief of the people Administrative rules -issuances of specific offices of government for their effective implementation and statutes Legislative Statutes Judicial Precedents Customary Practices These are accepted norms of a community of people based on customs and traditions

Laws are generally passed Decisions of the courts by an assembly, either on matters raised for Congress or Parliament, adjudication whose members are elected directly by qualified citizens In certain instances, the highest court decides on the constitutionality of a statute and promulgates final judgment on questions of law

How Laws Are Changed By Court Decisions By legislation By administrative action Government departments issues rules and regulations which can be subject to amendments, repeal or replacement By direct action of the people The people directly participates in the lawmaking process through mechanisms such as referendum, plebiscite and initiative

-In common law countries, Legislature has the power judges may change the laws to amend, repeal or pass a by expanding or overruling new law precedents Decisions of judges of the lower court are subject to the review by the highest court - If the interpretation of a law by the court is not to the liking of the government, then the legislative body may change the law

HISTORY OF LAW Prehistoric Times- the earliest laws were customary laws i.e. laws that became established by custom and were handed down orally from one generation to the next. Early Laws in the East 4000 BC, Egypt- the appearance of an organized court system marked the beginning of legal history - The word of the king was law - Palaces were the centers of law with judges administering justice - The Egyptian legal system endured until Egypt was conquered by Rome in the 1st BC 1850 BC-earliest known legal decision was found in a clay tablet of the murder of a temple employee by three men. Code of Hammurabi- the most complete collection of Babylonian law - Hamurrabi (reigned from 1792-1750 BC) reorganized the administration of justice and established an order arrangement of written laws. - Based on earlier collections o f Sumerian and Akkadian regulations - Consists of 282 provisions on family, labor, personal property, real estate, trade and business 1000 to 400 BC- Hebrew people of the Middle East assembled their religious and social laws into a code - The Law of Moses contained in the Ten Commandments 1280 to 880 BC, India- Laws of Manu - The laws were written in compilation of known legal rules passed from generation to generation - Formed the basis of the caste system 500 BC- China developed its own laws based on the teachings of Confucius

Ancient Greece 621 BC- Draco drew up Athenss first law code. It provided for harsh punishments. 590 BC-Council of Athens appointed Solon to reform the code to make it more humane. - Solon initiated changes in the lawmaking body through assemblies composed of elected representatives (basis of the democratic form of government) Ancient Roman Law

Early Roman Times 450 BC- Laws of the Twelve Tables - First Roman law code to set down the chief customary laws of the Romans 376 BC- Praetors were designated to make amendments to the law through edicts 27 BC-Roman emperor could make changes in the law - Juris prudentes were tasked to interpret the laws - Two applied set of laws: jus civile governed the Roman citizens and jus gentium applied to peoples conquered by the empire Late Roman Times 212 AD- Jus civile became the law of the entire empire including the conquered peoples who became citizens except slaves 533 AD- Emperor Justinian I organized all laws of the empire into the Justinian Code or Corpus Juris Civilis The Middle Ages Eastern Byzantine Roman Empire enforced the Justinian Code Canon laws were written by monks and clergy 800 AD- feudalism was adopted giving powers to individual lords or kings without control from the central government 1100 AD-University of Bologna trained law students on Roman law applying its principles to Germanic and feudal customs 1300s- faculties of law developed further the legal systems in Western Europe 1200s- England adopted a legal system (common law system) - This system is based on the doctrine of stare decisis 1100s- English kings established a nationwide system of royal courts and a separate system of equity (based on the principles of moral justice) The First Modern Law Codes and Other Developments 1500s- royal absolutism and growing nationalism saw the rise of strong central governments. - The foundation of the legal systems which is referred to as codification movement came about. French Revolution of 1789- the rise of Napoleon Bonaparte to power. 1804- the Code Civil or the Code Napoleon was adopted which blended the principles of Roman law, French customs and democratic principles. - Code Civil became the model for other national codes of the conquered nations Colonies under the British empire adopted the common law system (Australia, Canada, India, Malaysia and New Zealand) Legal systems of the Philippines, Mexico and South American nations are influenced by the civil law system