SAN BEDA COLLEGE OF LAW Final Examinations Legal Philosophy Prof: Atty. Wilhelm D.

Soriano 2nd Semester, 15 March 2013 =========================================== 1. Briefly discuss the nature of jurisprudence or legal theory? 5% 2. Why is jurisprudence or legal theory worth studying? 5% 3. What are the different schools of jurisprudence? 12% 4. Discuss the two (2) important points that should be noted insofar as rules of actions are concerned? 8% LAW AS A RULE OF HUMAN ACTION This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on the obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free will, is commanded to make use of those faculties in the general regulation of his behavior. Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct; not indeed in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker's will. (http://www.allaboutphilosophy.org/natural-law-and-sir-william-blackstonefaq.htm) 5. What are the four (4) distinct classes of rules of actions and orders of sequence? 4% The four distinct classes of law or rules of actions in its orders of sequence according to St. Thomas Aquinas are:

1. Eternal law 2. Natural law 3. Human law 4. Divine law Taken from: http://www.philosophy.hku.hk/courses/law/Dimock.htm Aquinas recognizes four main kinds of law: the eternal, the natural, the human, and the divine. The last three all depend on the first, but in different ways. Were we to arrange them in a hierarchy, eternal would be at the top, then natural, then human. Divine law is not in conflict with natural law, but it reaches human beings by a different route, revelation. (http://people.wku.edu/jan.garrett/302/aquinlaw.htm) 6. Briefly discuss the jural term law in a particular sense? 5% 7. Kindly explain a) precepts defining rules b) precepts defining principles c) precepts defining concepts d) precepts defining standards 12% 8. Discuss the concept of the natural law? 5% Natural Law is a system of law that is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature both social and personaland deduce binding rules of moral behavior from it. Natural law theories have, however, exercised a profound influence on the development of English common law,

9. What are the four (4) functions of the natural law theory in the legal order? 4% According to the Natural Law Theory of St. Thomas Aquinas, the four functions of law are the following: 1. law is an ordinance of reason 2. law has its end the common good 3. law is made by him who has the care of the community 4. law must be promulgated http://www.philosophy.hku.hk/courses/law/Dimock.htm 10. Distinguish Divine law from Physical law? Divine law is that law given of God for the good of mankind. Honor thy father and thy mother is a good example. Divine law is any law that, according to religious belief, comes directly from the will of God, in contrast to man-made law. Like natural

law (which may be seen as a manifestation of divine law) it is independent of the will of man, who cannot change it. However it may be revealed or not, so it may change in human perception in time through new revelation. Divine law is eternal law, meaning that since God is infinite, then his law must also be infinite and eternal. In Thomas Aquinas's Treatise on Law, divine law, as opposed to natural law, comes only from revelation or scripture, hence biblical law, and is necessary for human salvation. According to Aquinas, divine law must not be confused with natural law. Divine law is mainly and mostly natural law, but it can also be positive law. Physical law is that which applies to physical objects or being. The fact that water turns to ice or converts to a vapor at certain temperatures is a good example of physical law. Physical law is "a theoretical principle deduced from particular facts, applicable to a defined group or class of phenomena, and expressible by the statement that a particular phenomenon always occurs if certain conditions be present." Physical laws are typically conclusions based on repeated scientific experiments and observations over many years and which have become accepted universally within the scientific community. Physical laws are:

True, at least within their regime of validity. By definition, there have never been repeatable contradicting observations. Universal. They appear to apply everywhere in the universe. (Davies, 1992:82) Simple. They are typically expressed in terms of a single mathematical equation. (Davies) Absolute. Nothing in the universe appears to affect them. (Davies, 1992:82) Stable. Unchanged since first discovered (although they may have been shown to be approximations of more accurate lawssee "Laws as approximations" below), Omnipotent. Everything in the universe apparently must comply with them (according to observations). (Davies, 1992:83) Generally conservative of quantity. (Feynman, 1965:59) Often expressions of existing homogeneities (symmetries) of space and time. (Feynman) Typically theoretically reversible in time (if non-quantum), although time itself is irreversible. (Feynman) 11. Explain briefly the concept of absolute justice of Socrates? 5%

No person is intentionally bad or evil because of his or her understanding of justice. For Socrates, the failure to do what is just and avoid what is unjust is really due to morbid physiological appetites,mistakes, or even bad company.

He drew a distinction between absolute knowledge of justice (episteme) and mere opinion of justice (doxa)2. Only the temperate person knows himself or herself and, thus, able to bring his or her emotions under control. He explained that in relation to the gods atemperate person will do what is virtuous andjust, in relation to rights and obligations atemperate person will do what ought and avoidwhat ought not, and in relation to other persons a temperate person will act properly,patiently enduring when necessary

12. What is the reason why Aristotle did not agree with the concept of absolute justice of Socrates and the concept of rational justice of Plato? 10% Particular Justice Aristotle denied Socrates concept of absolute justice as too exacting for it demanded the kind of moral excellence which is the culmination of all virtues. Aristotle does not agree with Platos concept of rational justice because it was still a subjective virtue. He taught his students the sound sense view of justice. For him, the concept of justice is nothing more pretentious than the virtue of epiekeia, that is to say justice which grows out of the sense of fair equality. In other words, justice is sound and sensible when, in light of events and circumstances, it is fair and equal. In the thinking of Aristotle, the rigidity of the administration of justice, which is apparent in the jurisprudence of S and P, should be tempered with fair equality. On this basis, A differentiated between proportional justice and numerical justice. Proportional justice each person receives what she or he is entitled to on the basis of ability and achievement. Numerical Justice- each person, regardless of station in life, counts for one and only one 13. Explain briefly Ciceros theory that compulsion is an important element of the law? 5% 14. Explain briefly the view of Thomas Aquinas that a human being has a rational soul and a will of his own? 10% 15. What is the transcendental philosophy of Immanuel kant? 5% Transcendental is the philosophy that makes us aware of the fact that the first and essential laws of this world that are presented to us are rooted in our brain and are therefore known a priori. It is called transcendental because it goes beyond the whole given phantasmagoria to the origin thereof. Therefore, as I have said, only the Critique of Pure Reason and generally the critical (that is to say, Kantian) philosophy are transcendental.

Kant's doctrine maintains that human experience of things is similar to the way theyappear to us implying a fundamentally subject-based component, rather than being an activity that directly (and therefore without any obvious causal link) comprehends the things as they are in and of themselves.

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