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ON
CRISOLITO PASCUAL’S
INTRODUCTION
TO
LEGAL PHILOSOPHY
1997 Edition
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Chapter 1: JURISPRUDENCE, JURAL AND NONJURAL LAWS
1. Nature of Jurisprudence
A. Proemium -
Case Law – the law to be found in the collection of the reported cases that
form all or part of the body of law within a given jurisdiction.
Jurisprudence (legal theory) – deals with the general philosophy of law,
which is the nature and elements of law. It is concerned with the theoretical
and technical aspects of law as a discipline.
Nature of Law – is concerned with its derivation, development, and trust
Elements of the Law – deals with the concepts which are material to
the legal ordering of society, namely:
1. State
2. Sovereignty
3. Legal relations
4. Legal persons
5. Legal facts
6. Legal things
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4. The functional school – views the nature of the law in terms of the
jural postulates, social interests and national policies of the people.
Question: How does the law work in weighing or adjusting the
competing individual and public interests?
5. The realist school – takes the nature of the law on the basis of the on-
going experiences and inter-experiences of people.
Question: Is the law verifiable in the practical life of the people?
6. The policy science school – looks at the nature of the law in relation
to the degree of success of society in the creation, clarification and
realization of social values
Question: What is the basis and limits of global, regional and national
legal orders in relation to social values?
2. Law in General
Law – is any rule of action or order of sequence from which any beings
whatsoever either will not, or cannot, or ought not to deviate.
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(2) The pull or drag of gravity is an example of “uniformities” ---
uniformities of nature can be harnessed to good use but no human being
can violate or change any order or norm of physical nature without
harmful results.
3. Jural Law
A. Particular Sense –
The term LAW refers to a statute: batas, ley, legge, lex, nomoi, loi,
gezets
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Legal Sanction – a coercive intervention or an eventual punishment annexed
to a violation of a rule or regulation. Ex. – fine, imprisonment, destierro, loss
or suspension of certain legal privileges, assessment of damages, cost and
interest
Law may also refer to any rule or opinion given by an agency of the
state or by a jurist, or by an authorized official of the government.
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Example of opinion of an authorized official of the government ---
(1) Ruling or opinion of the Secretary of Justice, who is the Chief
Legal Adviser
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2. Remedial or Adjective Law – defining remedies and procedure
(a) Adjective private law
(1) Law on civil actions – deals with the rules by which a party prosecutes
another for the enforcement or protection of a right or the prevention or
redress of a wrong
(2) Law on special proceedings – deals with the processes which are not
pursued in the ordinary manner or procedure.
(b) Adjective public law – the law of criminal procedure which deals
with the rules defining legal remedies and procedures in criminal actions
whether they take on the nature of prosecutions of public crimes or
prosecutions of private crimes.
C. Abstract Sense – the term law is simply referred to as “law” without the
definite article preceding it. The central theme of the legal order in the
adjustment of human relations is kautusan not batas, derecho not ley,
diritto not legge, jus not lex, nomos not nomoi, droit not loi, recht not
gezets> The law is made up of not only a body of precepts but also a body
of innate and received ideals.
(1) Precepts – deals with the prescribed directions and trends concerning a
given subject matter.
(a) Rules – define or set the farthest limits of human activities and
actions. Composed of definite provisions for definite states of facts
to which certain definite incentives or sanctions or both are attached
as means of enforcement
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(c) Concepts – are general categories into which specific cases and things
may be classified. Examples are legal concepts on:
1. Possession 2. Agency 3. Contract
4. Intention 5. Consideration 6. Negligence
This element of the law is important because it sets the materials of
the law in proper order and symmetry, reducing the mass of rules
into manageable size.
(2) Ideals
(a) Juristic ideals – rational theories which may reshape or change
the contents of legal rules and legal precepts. Example: Ordered
Liberty, constructed by Justice Benjamin Cardozo (US SC) in the case
Palko v. Connecticut --- “the rights guaranteed by the constitution to
the people are valuable and important but not all of them are of the
very essence of a scheme of ordered liberty.” This means that there
are certain rights that can be “withdrawn or abolished and yet to do
so is not to violate the principle of justice so rooted in the tradition
and conscience of our people as to be ranked as fundamental.”
Examples are immunity from self-incrimination, immunity from
double jeopardy
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Examples –
1. Loving one’s neighbour as set by Jesus Christ (basis of Tort rule
that a person must not cause damage or injury towards another
by taking reasonable care)
2. No one can enrich oneself at the expense of another (embodied in
the rule that everyone who acquires or comes into possession of
something at the expense of another without just or legal ground
must return the same)
(c) Political ideals – are meant rational theories and syntheses for the
fuller direction of the political processes and for the maintenance of
the general welfare and security of the people.
Example –
Un Moi Commun - Jean Jacques Rousseau posited the idea that
general will resides in the people. Since general will is directed
toward the common good then it is always just and should prevail
for the voice of the people is the voice of God.
This ideal was applied to Pavesich v. New England Life Insurance
Company, and Metropolitan Service v. Paredes (Phil SC) stated that
“sovereignty is derived from the will of the people, by the people,
and for the people”
(d) Economic ideals – meant rational theories and syntheses for the
efficient development of the economy. They refer to the economic
goals for the betterment of supply of limited goods and services and
their distribution to meet the enormous needs of the people.
4. Nonjural Law
A. Divine Law
(1) General Sense
Broadly speaking, divine law is the entire system of perfection which
God, in His infinite wisdom, has imprinted in the whole of nature to
govern its operations. The ancient Roman jurisprudents fondly called it
jus divinum.
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Sinai, in the wilderness of the Sinai Peninsula. These Commandments
which are the epitome of man's duties toward God and his neighbor,
are the religious laws believed to have been formally given by God
through Moses.
- Islam: Divine law is embodied in the Quran as well as in the sunna
and hadith of Muhammed. The Quran is regarded by traditional
Muslim belief as the very word of God revealed to Muhammed
through the archangel Gabriel.
B. Natural Law
(1) Historical Background
- Sophocles (496-406 B.C.) considered natural law as a "higher law"
enjoying primacy over human conduct and order.
- Plato (437-370 B.C.) straightened the way for the development of
the natural law as a discipline to which human conduct and
relationships must conform in order to realize both the individual and
common good. Plato drew a dividing line between the ideal natural
law, which he characterized by the "ought" and its defiled
representation, which he delineated by the "is". Thus, Plato
emphasized the contrast between the natural and the
representational concept of justice. Plato distinguished between
what.is just by natural law and what is just by positive law.
- Aristotle (384-322 B.C.) gave a clearer distinction between natural
justice and legal justice. Aristotle differentiated between fair equality-
perfect justice and what is due and proper-imperfect justice. Citing
Sophocles, Aristotle posited the idea that the former is binding
everywhere even in the absence of communication or contact among
different peoples, as contrasted with the latter which cannot be
general without some kind of agreement. Thus, for Aristotle, what is
due and proper may sometimes be contrary to what is fair and equal.
- At the time of the Stoics: All men are equal by divine right since all
men are of divine origin. Their outlook on life was characterized by
mental fortitude, discipline, and serenity in meeting uncertainties and
difficulties. Surveying the worsening conditions of life and order in
the civil societies in the waning period of Roman rule, the Stoics
turned their attention to the regularity and uniformity of nature. To
gain a life of discipline and calmness one must live naturally - to live
and move according to nature. For the Stoics then human conduct
must be brought in agreement with the abiding character of nature.
- It was Epictetus (50-125 A.D.), a later Greek Stoic philosopher and
contemporary of St. Paul, who enhanced the metaphysical
significance of natural law on the basis of his aversion to materialism.
He believed that the moral nature and good faith of human beings
are defeated by dependence on material things. On the basis of this
metamaterialistic perspective, Epictetus viewed the natural law as a
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discipline engraved, as it were, in the heart and mind of human
beings. Having attached the natural law to the moral nature of human
beings, the natural law became the participation of humankind in the
divine law. Thus, natural law became the core of human personality
and dignity enabling a person to act with righteousness and justice.
- St. Paul, apostle and theologian, deepened the Greek concept of the
natural law. In his letter to the early Christians in Rome, he spoke of
persons "who have no knowledge of the law act in accordance with it
by the light of nature, they show that they have the law in themselves
for they demonstrate the effects of the law operating in their own
hearts, their own conscience endorse the existence of such law, for
there is something which condemns or commends their actions." He
is stressing conscience guided by love and reason at the same time
emphasizing the reality that there are people who act according to
natural law even though they may have no idea about it. The reason
for this is that their conscience guided by love convince them of the
righteousness of commendable actions. This is St. Paul's concept of
enlightened conscience as judgment or choice rooted in the heart and
mind of man.
- Augustine in turn echoed St. Paul when he expressed the view that
good faith is present in all human beings, not excluding the perverted
and the depraved, without regard to race, creed and station in life.
Thus, Augustine concluded that no one can really plead ignorance of
the natural law because his innate good faith and moral nature are
never silenced.
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- Essential matters:
o the scope of natural law which is universal
o the character of natural law which is a discipline of virtue
o the relation of natural law to humankind which is its impression
in their hearts and minds
o the thrust of natural law which is to guide human beings in their
acts and utterances
- Precepts:
o Righteousness is the virtue of doing that which is right
o Justice is the attribute of administering that which is just among
persons
o Fairness is the quality of being honest
o Equality is the character of being impartial
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- The natural law theory has also been utilized to justify innovations
in the legal system. For instance, in the Philippines the Code
Commission placed the precepts of "justice and equity above
strict legalism or form" in providing rules concerning such legal
concepts as quieting of title, reformation of instruments,
estoppel, trusts, and natural obligations.
- For Cicero, the natural law has definitely this function because it
is not allowable to deviate from the natural law, nor can it be
altered or abrogated. Neither can the people be released from this
law either by the State or by the people themselves.
- Thomas Aquinas, on the other hand, posited the idea that every
law enacted by the legislature enjoys the character of law to the
extent that it is derived from the natural law.
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classified, reduced to order, and put in the shape of rules, the
coin in the mint, with its value ascertained and fixed."
o The natural law has no place in a politically organized society
where there is no particular established religion.
o It is antithetical to a good legal order. For stripped of its
abstract trappings, it advances the idea that legislative
enactments can be adjudged twice. First, by the constitution.
Second, even if constitutional but allegedly bad or evil, by the
natural law.
C. Moral Law
(1) Moral Order
This is the set of same reasonable and desirable standard of behavior
growing out of the same collective experiences.
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- Moral law differs also from physical law. The latter is the totality of
uniformities and orders of sequence which combine together to
govern physical phenomena.
- Social rules may even vary with each ethnic group of a particular
class of people. What is socially allowed in one part of a country
may not be so in another part of the same country.
D. Physical Law
It is also known as the law of nature.
(1) Nature and Attributes
- Physical laws are imperative because they are fixed and unbreakable.
- Physical laws are also regular because there is no break in their
sequence or constancy.
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(4) Distinguished from Divine Law
- Physical law is not exactly divine law. Physical law may, however, be
considered divine in the sense that it is ordained by God for the course
and operation of the cosmos or universe.
- Divine law in the general sense is similar to physical law. But this is as
far as the similarity goes, for divine law in the strict sense is not the
same as physical law. The former is the law of religious faith.
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Chapter 2: THE HISTORICAL PERSPECTIVE
1. Historical Perspective as a Starting Point
Freidrich Karl von Savigny (1779-1861) held that the law proceeds from the
volksgeist. For Savigny, the concept of the soul and spirit of the people (diwayan)
provides the sense of beginning and unfolding of the law. It is still useful in the
evaluation of the legal development of a nation especially its legal history.
B. The Folksoul
The folksoul (diwayan) is composed of several elements, each element a
treasury of the national identity, character and genius of a people. While these
elements belong to the folksoul they are distinct from one another.
(1) Folklore
In this treasury are deposited the beliefs and traditions of a group of
people, constitute the folk learning or folk wisdom handed down from
generation to generation in substantially the same form and content.
That is why beliefs and traditions have been called lore – the learning
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of the people. Folklore may survive in the form of epic tales, parables
and riddles.
(2) Folksaying
This treasury of the folksoul is composed of the opinions of the people.
These opinions are stronger than mere impressions. They are
expressions or announcements of orders and policies which the
members of the community are expected to follow.
o A maxim (sawikain) is a short or terse statement containing a
general truth or a timeless rule of conduct.
o A sentiment (sabi) is a settled sense, view or disposition colored by
feeling.
Non-Jural Examples:
- "Pag-aasawa'y di biro/ Kanin bagang isusubo't iluluwa kung
mapaso."
- "Mabuti na ang mamaLay na malinis ang budhi/ Kaysa mabuhay
na parang pusali."
- "Kung mainit ang kalan/ Huwag hipuin ng di na masaktan."
Jural Examples:
- "Ang mag-asawa sa ariarian ay iisa."
- "Huwag kang pumasok sa bakuran nino man nang huwag kang
masakupan."
- "Daig ng maagap ang masipag."
(3) Folkway
Folkways (kaugalian) are composed of customs and usages of the
people which make them reliable expressions of the folksoul.
Examples: pagmamagulang, lupon sanggunian, maybahay, bigay-kaya,
bigaypayo
(4) Folksong
This treasury of the folksoul reflects the musical expressions innate
to a people.
(5) Folkdance
In this category of the folksoul are included the dances indigenous or
unique to the people. They are performed to folk music either singly or
in company with others. Two characteristics:
- Significance or translation attached to them
- They are not for happy occasions alone but even for grim and
difficult times
(6) Folkart
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This category includes skills peculiar to a people applied to the creation
or fabrication of objects of art or objects of utility.
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considerable degree of imposition. Ultimately, however, such outside and
unacceptable provisions of the foreign law are abolished.
- Example: When the Civil Code of the Philippines was instituted in 1949,
certain provisions of the Civil Code of Spain touching on dote, censos, usos,
and habitacion, which were inconsistent with the oblutiacs of the Filipinos,
were abolished.
B. Jurisprudential Reason
- The concept of a regular and progressive development of the law should
also explain the similarity or uniformity of different legal systems even in
the secondary applications of general or first principles.
- Different peoples may have particular legal rules, more or less similar, for
the resolution of the unjust and unequal situation referred to.
- Example: The Philippine legal order provides as a general rule that actions
prescribe by the mere lapse of time fixed by law. Thus, in the secondary
application of first principles the similarity in, or uniformity of, some
aspects of the legal orders of different peoples is still explainable.
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Chapter 3: THE TELEOLOGICAL PERSPECTIVE
1. Labels
- The label "philosophical jurisprudence" has been used to identify the thinking
and method of this juristic school. The reason for this is that the major part
of its discourse lies in the realm of metaphysics.
- This label emphasizes the fundamental point of view of this juristic school:
that the law is ordained for the achievement of the precepts of the natural
law, namely, righteousness, justice, fairness, and equity in the legal order.
- For this juristic· school, the achievement or realization of these precepts in
the legal order is the telos of the law.
A. Absolute Justice
- No person is intentionally bad or evil because of his or her understanding
of justice; the failure to do what is just and avoid what is unjust is really
due to morbid physiological appetites, mistakes, or even bad company.
Socrates drew a distinction between absolute knowledge of justice
(episteme) and mere opinion of justice (doxa).
- Only the temperate person knows himself or herself and thus able to bring
his or her emotions under control. Socrates explained that in relation to
the gods a temperate person will do what is virtuous and just, in relation
to rights and obligations a temperate person will do what ought and avoid
what ought not, and in relation to other persons a temperate person will
act properly, patiently enduring when necessary. A temperate individual is
a good. happy and sound person able to judge whether his or her acts and
their consequences would be just (virtuous) or unjust (vicious).
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B. Rational Justice
- The reality or idea of "justice" exists in the mind even though one does not
see it done or performed in fact. Plato posited the concept of justice
yielding to the rational mind.
- Human beings are capable of discerning justice from injustice even in their
minds. Rational justice is sufficient to enable human beings to attain their
moral nature and good faith, keeping their self-respect by doing good and
fulfilling their proper functions in society.
- The law is an instrument of doing justice in the state, that is to say
preserving peace and harmony therein. Rational justice dictates that every
individual in the state should attend to his or her own function whether he
or she is a legislator, a judge, or whatever.
C. 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 did not also agree with Plato's concept of rational justice
because it was still a subjective virtue.
- Justice is sound and sensible when, in light of events and circumstances,
it is fair and equal. In this context, Aristotle insisted that a person cannot
be unfairly or unequally treated even with her or his consent. Consent
cannot justify an unfair and unequal treatment. This Aristotelian insight
later became the basis of the Roman law concept of volenti non fit
iniuria ("to a willing person, injury is not done").
- Put differently, justice is a particular virtue not a universal ingredient in
the application of law in society. In the thinking of Aristotle, the rigidity of
the administration of justice, which is apparent in the jurisprudence of
Socrates and Plato, should be tempered with fair equality.
- Proportional justice and numerical justice differentiated. In the former,
each person receives what she or he is entitled to on the basis of ability
and achievement. In numerical justice, each person, regardless of station
in life, counts for one and only one.
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effectively, the law must be based on the principle of utility, that is to say
in the interest of the ruler and not for the interest of the governed.
- He introduced compulsion as an element of the law. He posited the idea
that the law cannot be an effective means of social control on the basis of
rationality alone but must also be able to compel obedience.
- Cicero opposed prudence as a factor in determining the justice or injustice
of an act or conduct. An act may be prudent but the question remains: is
it just and fair. An act may be against a legal rule but it may still be just.
B. Gaius
- Gaius advanced the view that the rules established by the citizens to
govern themselves fall under the jus civile, while the rules common to all
other persons based on the natural law are classified under the jus
naturale.
- Those that are in derogation of the precepts of the natural law are not laws
at all. If such laws exist it is due to the sanctions attached to them, not
because they are laws. They do not contribute to the maintenance and
preservation of lawness. On the contrary, they are conducive to
lawlessness.
Laws must be reexamined by the lawmaking body every once in a while.
This process would provide the means for legal cleansing whereby any
abnormality or irregularity in the legal order could be adjusted to comply
with the end and purpose of the law.
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- Right reason is the governing rule of human conduct "for the common
good, which is preferable to one's proper good, because the common good
of the whole is God Himself."
- Should any rule or measure of action depart from the precepts of the
natural law, then it ls no longer valid but a perversion of the law.
A. Justice
- Justice as an ethical virtue - considered justice to be inherent in every
person.
- Justice as a juristic norm - considered justice as "the habit whereby
man renders to each one his rights by a constant and perpetual will.
C. Immutability of Law
- The doctrine that the subsequent application of first principles may be
periodically expanded or contracted in accordance with the prevailing
conceptions of the times finds basis in the distinction drawn by Thomas
Aquinas as to the immutability of the law.
- Changes do occur in the subsequent applications of the law and these
changes may be by expansion or contraction in accordance with the
civilization of the time and place.
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(1) The Principle of Rightness
The precepts of the natural law are not prompted by sense-experience but
by ethical altitude to do what is right and avoid what is wrong with the
application of the unique faculties of human consciousness, namely,
thinking, volition and judgment. This unique capacity for moral choice sets
human beings apart from other creatures. Kant called this the principle
of rightness.
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- The legal ordering of society must always be directed to the overcoming
of pain. This is based on the fact that pain appears to be the major part of
human existence and pleasure a temporary or transitory release from pain.
- To achieve this end, modern utilitarians posit a combination of the theory
of the good (happiness as the highest good) and the theory of value (the
usefulness of an act or conduct depends on its consequences).
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of benevolence, which refer to the possession of charity or
human sympathy, good nature, tolerance, consideration, or
mercy
of malevolence, which refer to the possession of ill-will, malice.
or antipathy on those who may become the objects of
malevolence
of memory, which refer to those which one may experience at
recollecting some prior pleasurable experiences
of imagination, which refer to the contemplation or
consideration of any pleasure which may be, in point of time,
present, past or future
of expectation, which refer to the contemplation or
consideration of some future kind of pleasure accompanied by
the sentiment of belief
of the ones dependent on association resulting from or growing
out of some association or connection with certain objects or
incidents which are in themselves pleasurable
of relief, which refer to experiences which have to do with
cessation of pain
- Pains of which human beings are susceptible to:
of privation, which refer to pains resulting from failure to
possess any of the several kinds of pleasures and include pains
of unsatisfied desire and pains of regret
of senses, which are related to disagreeable sensations
of awkwardness. which refer to the consciousness of lack or
want of skill or finesse
of enmity, which refer to the pains which sometimes results
from the non-possession of the goodwill or the possession of
the ill-will of a particular person or persons
of bad reputation, which refer to the non-possession of the
goodwill or the possession of the ill-will of society
of impiety which refer to the non-possession of the goodwill or
favor of God
of benevolence, resulting from the thought that someone who
happens to be the object of one's sympathy is enduring pain
of malevolence resulting from the thought that someone who
happens to be the object of one's antipathy is enjoying
pleasure
of memory, which refer to those which one may experience at
recollecting some prior painful experience
of imagination, which may be derived from the contemplation
or consideration of any such pains which may be, in point of
time, present, past or future
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of expectation, which refer to the contemplation or
consideration of some future kind of pain accompanied by the
sentiment of belief
of the ones dependent on association resulting from or growing
out of some association or connection with certain objects or
incidents which are in themselves painful
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(c) Application in the Legal Order
- With this Jeremy Bentham sought to test all legislation and all acts
by their bearing on individual human happiness or misery. Bentham
concluded that the law is a system of social control directing and
governing persons to the maximum of happiness and to the
minimum of misery.
- Thus, rules should be judged by their tendency to promote happiness
and avoid pain.
- To this end, Bentham specified the ends of the law, namely, "to
provide substance, to produce abundance, to encourage equality,
and to maintain peace and security."
- This can be accomplished by direct pursuit of pleasure and avoidance
of pain.
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- Egoistic levers. This type of levers refers to incentives addressed
to the region of self-interest or selfish purposes.
Egoistic non-coercive lever are the fact or event of reward
and the fact or event of association.
lever of reward are expectations of honor, respect, or
income
lever of association are expectations of acceptance by
individuals or society providing a powerful incentive to the
individuals in the community to pursue interests where
others can share or participate in
Egoistic coercive lever are the mechanical and psychological
means
In the mechanical lever of coercion, society itself acts in
order to master, subdue, or break an individual's purpose.
Thus, for example, the state may send a person to prison
in order to prevent him from further realizing his criminal
fecundity.
In the psychological lever of coercion, pressure is exerted
by society, just as in the first case, but the mastering or
breaking of the individual will or purpose is done by the
subject or person concerned. To pursue the example given
above, a person subdues his or her own criminal tendency
when he or she sees that those who violate the laws of
society are punished for their wrongdoings.
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o The art of legislation is finding ways and means to realize or
accomplish that good.
- The principle of utilitarianism has been applied in the field of human rights.
o Bentham: that equality is one of the main aspects of law and in
reviving the importance not only of the right to life, personality and
dignity but also the collective purpose in the conservation of human
resources.
o Jhering's social utilitarianism sought a balance between individual
interests and the purposes of society, which Roscoe Pound later
developed into a theory of social engineering of the conflicting or
overlapping interests. Jhering's classification of purposes into
individual, political and social was also Pound's basis for his theory
of social interests in which he identified and labeled the generic
interests of society.
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with his (Marx) own philosophy of dialectic materialism, that is to say the
withering away of the bourgeois social and legal orders and the emergence
of the dictatorship of the proletariat.
A. Juristic Approach
- Modern teleological jurisprudents, notably Josef Kohler and Sidney Hook,
consider a knowledge of right and wrong or good and evil that is relative
to the changing conditions of time, place, and people.
B. Ethical Relativity
- Kohler: "there is no ideal absolute or absolute ideal." There is simply
no absolute formula (e.g., natural law philosophy] to determine the
different aspects of the legal ordering of society. Kohler emphasized that
"legal concepts, including law, have their respective ideal tendencies not
the same tendencies."
o Example: the principle that ignorance of the law excuses no one from
compliance therewith, particularly in crimes mala prohibita, where
intent is immaterial. Should this be tempered with "sound reason
and mercy?" Are not common sense and compassionate treatment
of an offender or adversary changeable values?
Was this, then, the reason why the principle was not applied
at all in the case of People v. Navarro, involving a thirteen year
old girl who was arrested for selling a tin of cocoa for an
amount eleven centavos more than the ceiling price, while
tending her sister's variety store when the latter was away at
the time?
And is this the reason, too, why it is wrong to lie but not, it
seems, to deceive the enemy in times of war?
- Sidney Hook posited another direction. For Hook, the criterion of what is
right really depends on what he called the “primary desires” of the people,
which, however, are constantly in flux. The problem "of what is right and
what is wrong” is to be conceived as the equilibration of interests and their
adjustments to environment.
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bottom, when an act or conduct and its consequence are in conformity
with the interest of the state, then they are considered as good and just.
- David Hume posited the view that "reason is and ought only to be the
slave of passions." Reason recognizes utility but passion to be sure
provides the compelling force of all actions. Hume believed that an act or
an idea is either approved or disapproved on the basis of the public benefit
from it. It is obvious that justice in Hume's thinking may or may not be
endowed with fair equality i.e. that which fulfills the interest in the integrity
and stability of the state is justified and will be enforced by its coercive
power, even though it may be unfair in the individual cases.
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Chapter 4: THE POSITIVIST PERSPECTIVE
1. Seed of Legal Positivism
- Also known as analytical jurisprudence, "positivist jurisprudence"
emphasizes that the law is consciously created by the state. As such, the
law is positive, posited by the authority of the state.
- The seed of legal positivism was planted by Socrates. Plato recorded that
the followers of Socrates sent Crito to help Socrates escape from prison
after he was sentenced to forfeit his life. Socrates refused and told Crito
that while he considered the sentence passed upon him to be unjust and
unfair it was, nevertheless, lawfully rendered and, therefore, he intended
to obey it.
3. Hobbes-Austin Concept
- Hobbes: Before the names of just and unjust can take place, there must be
some coercive power to compel men equally to the performance of their
covenants. Laws are the rules of just and unjust, nothing being reputed unjust
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that is not contrary to some law. The "sovereign is not subject to the laws for
having the power to make and repeal laws, he may, when he pleases, free
himself from their subjection." All that is done by such power is warranted
and owned by everyone of the people, and that which every man will have
so, no man can say is unjust.
- Austin: But to proclaim generally that all laws which are contrary to the
natural law are void and not to be tolerated is to preach anarchy, hostile and
pernicious as much to the wise and benign rule as to stupid and galling
tyranny. His aversion to the philosophy of the natural law is based on the
view that the “ought” is really non-existent. The actualization or realization
of that which ought to be results only in its own cancellation.
4. Legal Positivism
- Austin insists, even though impatiently and rigidly, that there is a clear-cut
distinction between law and morals and between law and natural law, as
follows: “the confusion of them under a common name and the consequent
tendency to confound law and morals and law and natural law is one prolific
source of jargon, darkness and perplexity.”
- In the perspective of positivist jurisprudence, legal rules can be sound or silly,
good or bad, so long as their silliness or badness is general in scope, that
such rules affect all persons belonging to a particular class.
- If moral considerations do not consciously precede the law how, then, can it
merit obedience? John Austin made it abundantly clear that positive law does
not exist in a vacuum simply because of the separation of positive law from
moral law and natural law. Positive law has a criterion or test of its own,
namely, the philosophy of legal positivism which rests on the triune concepts
of sovereign, command and sanction.
A. Lausanne Brand
- Ernest Roguin felt very strongly that the answer to the problem of the
validity of positive law lies in pure juridical science consistent with the
culture of the people.
B. Vienna Brand
- Pure positive law, according to Hans Kelsen (1881-1953) considers only
human norms, not norms coming from other superhuman sources" and
that "it does not try to consider the law as the offspring of moral law and
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natural law, as a human child of a divine parent. He posits the idea that
the concept of law has no moral connotations whatsoever.
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- In Hans Kelsen's pure positive law the personification of the state is
avoided by considering the state and the law as one for the reason that
within one nation only one and not two compelling orders can be valid at
the same time.
B. Generality
- The rule or norm must not be in the particular form for that would be
determinative only of specific acts, persons, or things. The rule or norm
must be general, it must prescribe courses of conduct for all members of
society or for all in a particular class.
C. Authoritative Enforcement
- As a rule or norm backed by the authority of the state, the law involves a
duty to obey. In the event that the command is disregarded, then the
sanctions are applied or the incentives withheld.
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school of jurisprudence to look askance at the historical perspective of the
law. For the positivist school, customs and customary modes of decisions are
atypical examples of positive law. For the positivists, the law is simply the
conscious creation of the supreme political superior.
- From the perspective of legal positivism, the historical view that the law
emanates from the life and spirit of the people is ambiguous, especially when
the element of time is taken into consideration. A legal rule, for example,
cannot simply exist before the happening or occurrence of the facts it purports
to cover or govern. For the positivists, a legal rule is created consciously after
the occurrence of the act or event in the future.
- The conflict on this particular issue is more imaginary than real. This may be
eliminated by simply tracing a legal rule back to its simple beginnings. The
development of a legal rule or concept is visible even in retrospect. The
obvious way to deal with the conflict is to trace the rule or concept back to its
simple beginning. It is even possible that in the process the rule or concept
may be found to have been borrowed or transplanted from another legal
system.
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Chapter 5: THE FUNCTIONAL PERSPECTIVE
1. Labels
2. Background of Legal Theory
3. Reaction to Idealist and Positivist Perspectives
A. Criticism of Abstract Values
B. Criticism of Legal Positivism
4. Recognition of the Interests of Society
5. Core of Functional Jurisprudence
6. Essential Factor in the Legal Ordering of Society
7. Functional Concept of Law
8. Presentation of Conflicting or Overlapping Interests
9. Relative Weight of Competing Interests
10. Social Interests and National Policies
A. Extra-Legal Factors
B. Types of Interests
C. Means of Securing Private Interests
D. Means of Securing Public Interests
11. Categories of Social Interests
A. Social Interest in the General Security
B. Social Interest in the Maintenance and Protection of Social
Institutions
(1) Domestic Institution
(2) Religious Institution
(3) Political Institution
(4) Economic Institution
C. Social Interest in the General Morals
D. Social Interest in the Conservation of Human Resources
E. Social Interest in the Conservation of Natural Resources
F. Social Interest in the General Health
G. Social Interest in Human Personality and Dignity
H. Social Interest in the Social Life
I. Social Interest in the General Progress
(1) Cultural Progress
(2) Moral Progress
(3) Economic Progress
(4) Political Progress
J. Social Interest in the General Aesthetics
12. Adjustment of Conflicting Interest
13. Value of Functional Jurisprudence
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Chapter 6: THE MODERN LEGAL REALIST PERSPECTIVE
1. Labels
2. Legal Realism as a Distinct Juristic School
3. Judicial Legal Realism
A. Intellectual Forbears
(1) Human Law and Human Experiences
(2) Separation of Law from Its Sources
B. Constructive Skeptics
(1) Rule Skeptics
(2) Fact Skeptics
(3) Opinion Skeptics
C. Role of Material Facts
D. Role of Experience and Social Advantage
E. Role of Metalegal Stimuli
(1) Fom1alist View
(2) Modern Realist View
(3) Metalegal Factors
(a) Stimulus Set by the Witnesses
(b) Stimulus Set by the Lawyers
(c) Stimulus Set by the Judges' Legal Attitudes and Prejudices
(d) Stimulus Set by the Judges' Predilections and Preconceptions
(e) Stimulus Set by Historical Events and Political Precedents
(f) Stimulus Set by Current Social Values and Economic Postulates
F. The Law as the Product of the Judicial Process
G. Exclusion of Legislative and Executive Actions
H. The Adjudicative Process as the Prime Mover
I. The Law and its Purpose
4. Social Legal Realism
A. Source of Law
B. End or Purpose of Law
C. Application of Law
5. Critical Legal Realism
A. Critical Legal Realism Scorned
B. Polemics Against Critical Legal Realism
C. Deconstruction of Dominant Liberal Paradigm
(1) Trashing the Tradition of the Dominant Liberal Paradigm
(2) Internal Reformulation of the Dominant Liberal Paradigm
(a) Rationale and Justification for the Censure
(i) The Rule of Law
(ii) Separation of Governmental Powers
(iii) Objectivism and Formalism
(iv) Judicial Activism
(v) Idealistic and Cynical Concepts of Democracy
(b) Transformation of Liberal Legal Order
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(i) Basic Equality
(ii) Democratic Republicanism
D. Transformative Context of the Post-Liberal Order
(1) Decentralization of Government
(2) Reorganization of Market Economy
(3) Reconstruction of System of Rights
E. Nature and Function of Law
6. Psychological Legal Realism
A. Critique of Judicial Legal Realism
B. Critique of Legal Ideology
C. Nature of Law
D. Basic Jural Relations
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Chapter 7: THE POLICY SCIENCE PERSPECTIVE
1. The Yale Approach
2. Policy Science Jurisprudence
A. Reaction to Apathy Towards Social Values
B. Movement Away from Ontological Jurisprudence
C. Emphasis on Human Rights
D. Movement for the Universal Recognition of Social Values
3. The Policy Process and Problems About Values
4. The Social Value “Power"
A. Forms of Authority and Facts of Control
B. Aspects and Referents
5. The Social Value “Knowledge"
A. Purposive Forms
(1) General Aspect
(2) Particular Aspect
B. Tendential Functions
6. The Social Value “Respect"
A. Regard for Life and Limb
B. Regard for Human Personality
(1) Positive Phase
(2) Negative Phase
7. The Social Value “Income"
A. General Aspect
(1) Freedom from Want
(2) Conservation of Natural Resources
B. Particular Aspect
(1) Immediate Necessities
(2) Immediate Comforts
8. The Social Value "Safety"
A. Public Protection
B. Public Health
C. Social Security
D. Peace and Order
9. The Social Value "Liberty”
A. Relative Nature
B. Purposive Affirmation
C. Forms
D. Tension or Problem Area
E. Constituent Parts
(1) Personal Liberty
(2) Religious Liberty
(3) Civil Liberty
(4) Political Liberty
(5) Economic Liberty
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(6) National Liberty
F. Paradoxes of Effective Liberty
10. The Social Value "Equality"
A. Negative Aspect
(1) Jural Inequality
(2) Invalid View of Equality
B. Positive Aspect
C. Constituent Parts
(1) Equality and Balance Before the Law
(a) Simple Type
(b) Distributive Type
(2) Equality and Balance of Opportunity
(3) Equality and Balance of Rights and Freedoms
(4) Equality and Balance of Political Value
11. The Overarching Social Value
12. Concept of Law
13. Importance of the Policy Science Concept
14. End in View
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