CHAPTER 1

LAW - is a rule of conduct, recognized by custom or by formal enactment, which a community considers
as binding upon its members.

PHILOSOPHY - Love of wisdom or the search for truth.

- It seeks to discover the essence, nature and foundation of things, as opposed to
their appearance.

USES OF PHILOSOPHY
1. DEEPER UNDERSTANDING
To gain deeper levels of understanding, it must continually question every thing we
believe in.

2. WISDOM
Will help us understand and forgive, it is enough, and more than the world’s wealth.

LEGAL PHILOSOPHY – A systematic study that seeks to understand the

a. Nature and essence of law;
b. Its definition and elements;
c. The sources of its authority;
d. Its various applications and development; and
e. Its role in society

- Also known as jurisprudence or the science and philosophy of law, concerns itself
with fundamental questions like what is law as such, and not seeks to know what
is the Philippine law.

FIVE SCHOOLS OF JURISPRUDENCE

1. NATURALISM
Maintains that law and morality are not separate, that an unjust law is not true law and that
law must reflect the eternal verities of justice and fairness.

It believes that there are rational (ethical or moral) limits to the power of congress to enact
laws.

2. POSITIVISM
Believes that law and morality should be separate, and that law is valid if it is validly posited
by lawful government or authority.

Believes that laws are not products of heavenly notions and ideals but from a more earthly
agreement (convention) among those who use it.

3. REALISM
Law is determined by real world practice and experience.

Law is not a strict, scientific, philosophical or logical activity. Rather, it is based on human-
blood and sweat-experience.

4. FORMALISM
Law is a strict science governed by formal axioms and principles which are used by judges,
using the rule of logic, in deciding and determining the outcome of a case.
 5. CRITICAL LEGAL STUDIES
Law is but an expression of the policy goals of whoever happens to be, at the particular moment
in history, the dominant social group.

CHAPTER 2

LAW AS RULES
Laws are set of rules and that when dispute arises, all a judge does is find the right rule and apply it
mechanically, even ruthlessly.

It caters to efficiency (ex. Quick disposal of cases from the court dockets). That it is dismissive of the
other aspects of human experience; that it does not factor in the relationship of the litigants.

LAW AS PROCESS
Laws are not just statutes per se but the whole series of the life experiences of lawmakers, law
enforcers, law breakers or followers as well as lawyers, judges and legal theorists.

COMMON CHARACTERISTICS OF LAW

1. OBEDIENCE
Common characteristics present in all types of law.

2. GENERALITY
Sees laws as ‘generally’ rather than ‘particularly’ framed. It is for common observance

3. PROMULGATION
Aquinas posits that promulgation is essential to law, the following are the objections that
promulgation is essential to law:
a. Natural law which has the character of law needs no promulgation;
b. Law’s force affects not only those to whom the law is directly promulgated but also to
those who were not parties to its promulgation; and
c. The force of law extends to the future and binds those unborn at the time the law was
promulgated.

Aquinas replies to the following objections:

a. Natural law is promulgated, since it can be gleaned from the fact that God instilled
natural law “into the man’s mind”
b. Those who are not present during the law’s promulgation are bound to observe the
law in that they ca be notified by others of the law after it was promulgated; and
c. The durability of written characters ensures that laws may be “continually
promulgated” even to the future

4. RULE OF LAW
a legal principle which posits that whenever a legal issue present itself, it must be decide by
applying the accepted principles of law.

It is a principle of governance in which all persons, institutions and entities, public or private,
including the State itself, are accountable to laws that are:
a. Publicly promulgated;
b. Equally enforced;
c. Independently adjudicated; and
d. Consistent with international human rights, norms and standards.
 Rules of law adheres to the following legal principles:
a. Supremacy of law;
b. Accountability of law;
c. Fairness in application of law;
d. Separation of powers;
e. Participation in decision making;
f. Legal certainty;
g. Avoidance of arbitrariness; and
h. Procedural and legal transparency

5. IS INTERNATIONAL LAW TRUE LAW?

International Law is that branch of law that governs the relationships between countries and
other multinational actors. Its purpose is for nation-states to maintain peaceful and productive
relationships among each other.

Basis of enforcement of international law:

Obedience of international law by member states is based on the principle of reciprocity. This
means a nation obeys because it wants other nations to do the same, and it wants to be seen
as a “law-abiding” country by other nations.

LAW WITHIN RELIGIOUS DOGMA AND TRADITION

A. CODE OF HAMMURABI
Covers diverse areas of laws as trade, family, employment, criminal justice, judicial procedure
and anticipates more modern legal concepts such as frustration of contracts.

It is based on the principle that justice dispensed by judges and rulers should not be whimsical,
arbitrary or personal. Rather, notions of justice should abide within defined and well-formulated
rules following adherence to truth, equitable principles and retribution.

B. JOHN CALVIN
John Calvin’s rigorous theocracy or government by priests is a more contemporary example of
complete subordination of an and his laws to what is perceived by the group as the will of God.
In this view man was under the sovereignty of God.

C. INQUISITION
Another example of subordination of state law under religious dogma.

It is a tribunal of the church enforcing church law and dogma.

LAW AND RELIGION

1. JEWISH LAW
Torah – five first books of the Old Testament or Pentateuch by the Christians
- Is a written constitution of the Jews which contains their code of laws.
- Written by Soferim or a group of interpreters who help to keep Jewish law adequate
for succeeding generations, and to the ne conditions of life to which they lived.

Mishnah – Is a collection of commentaries on written Jewish law consisting of discussions

among the Rabbi. It comments on the Torah.

Gemara – comments on the Mishna.

Talmud – combination of Mishnah and Gemara

 Halakha – legal and ritual matters embodied on Talmud

Haggadah – ethical, theological and folklorist matters embodied on Talmud.

Responsa – are juridical guidance or opinions given by the rabbis on day to day details of
Jewish life.

HUMAN RIGHT IN JEWISH LAW

The recognition of the importance of human life is at the same time both integral to the Jewish
faith system and the first and necessary precondition for a belief in human rights. The notion
of human rights flows as a natural extension of the Genesis account of the creation of humanity.

2. ISLAMIC LAW
Also known as Shari’a, believed by Muslims to be of divine origin, and is one of the world’s
great legal systems. Much of the Shari’a is derived from the Koran. The Koran supplied the
basic tenets and principles of Islamic Law but not the details.

Hadith – is a collection of the teachings of Muhammad and the stories of his life is regarded by
Muslims as their guide to living second only to the Koran.

HUMAN RIGHT IN ISLAMIC LAW

In Islamic law, human rights are seen as rights which all human beings ought to have. These
rights are so deeply rooted in our humanness that their denial or violation is tantamount to a
negotiation or degradation of that which makes us human.

3. CANON LAW
It is a body of laws enacted by ecclesiastical authority for the administration of the Roman
Catholic church. Canon law contributed principles on equity, good faith and morality in sexual
and marital relationships.

HUMAN RIGHT IN CANON LAW

It distrusts of individualism and its emphasis on the community.

LAW AS CUSTOM
Custom – from Latin consuescere ‘to be accustomed’ is a society’s habitually practiced conduct or
preferences.

SAVIGNY’S DOCTRINE OF THE HISTORICAL SCHOOL

This is the view that law is but a crystallization of group’s national or tribal character. Law is written,
and is updated, by the evolutionary processes of the group. Law is not an arbitrary will or imposition
of just any law maker; rather it is like language which captures the uniqueness of the culture which
utilizes them.

ENDS AND EFFECTS OF LAW

1. Full development of the Human 5. Human Rights
Personality 6. Equality
2. Justice 7. Equal Access before the law
3. Wisdom and law as heuristic 8. Liberalism
4. Equity 9. Morality
FULL DEVELOPMENT OF HUMAN PERSONALITY
Aristotle and Aquinas both believed that laws make man good, and that it is law’s mission to enable
the human person to achieve his fullest development.

Aristotle’s view on the ends of law:

The purpose of law then was to assist man to the attainment of his fullest potential in society. Since
each individual’s potential is not the same as that of others, every effort must be made, therefore, to
draw out his best capabilities – whether artistic, literary, physical or any other.

Aquinas:
1. Arguments holding laws do not make man good.
a. It is virtue not law which makes men good
b. Goodness precedes law;
c. There are people who are good to the community but bad on those referring to
themselves; and
d. Since some laws are tyrannical and abusive, their effects would necessarily be
harmful.
Reply of Aquinas to these arguments:
a. That every law’s aim is to be obeyed by those to whom the law is addressed, and
that the proper effect of the law is to lead its subjects to their proper virtue
b. Goodness such as is not the only reason why people obey the law. Some obey for
fear of the consequences such as punishment or having a particular transaction
declared void which means losing the state’s cooperation in enforcing the private
agreement.
c. Since the individual is part of the whole, the goodness of the individual will be felt
proportionate to the common good.
d. A tyrannical law is, strictly speaking, not true law. It is a perversion of law, and
one that is not in accord with reason.

JUSTICE
• One of the determinants of a good law is if it conforms to the principles of justice and fairness.

Significance of Justice
Its tendency to counteract the crude egoism of the individual.

Definition of Justice
For Aristotle : Justice is giving everyone his due.
Under Encyclopedia Britannica: Justice is the concept of a proper proportion between a person’s deserts
(what is merited) and the good and bad things that befall or are allotted to him or her.

Social justice is neither communism, nor despotism, not atomism, not anarchy, but the humanization
of laws and equalization of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated. Social justice means the promotion of the
welfare of all the people, the adoption by the Government of measures calculated to ensure society,
through the maintenance of a proper economic and social equilibrium in the interrelations of the
members of the community, constitutionally, through the adoption of measures legally justifiable, or
extra-constitutionally, through the exercise of powers underlying the existence of all governments on
the time-honored principle of salus populi est premo lex. (Calalang v. Williams)
WISDOM AND LAW AS HEURISTIC

WISDOM
An ancient concept, wisdom has been historically considered as the pinnacle of human development.

HEURISTIC
Is that branch of logic dealing with discovery and finding out. It is a model or useful hypothesis that
leads to a solution that is more or less near the best possible answer. Law as heuristic means law is
viewed as a rule of thumb or a general principle which is true in most cases but neither accurate nor
reliable in all cases.

EQUITY
Law as equity has two meanings. First, it may refer to fairness or justice, as in treating people equally
and fairly, and second it may refer to the rules developed by the Court of Chancery in England in the
13th and 14th centuries.

Black’s Law Dictionary defines equity as the “recourse to principles of justice to correct or supplement
the law as applied to particular circumstances.” This is so because law by nature is ‘general’ and
’universal’, and there are situations when the liberal application of law would result to injustice instead
of justice.

EQUITABLE PRINCIPLES IN INTERNATIONAL ENVIRONMENT LAW

1. Common but Differential Responsibilities
This principle is offshoot of the concept that the world is a common heritage of mankind, thus
State have common responsibility towards its protection.
2. Sustainable Development
It assesses or quantifies development in relation to its long-range impact on the both the local
and wider environment.

Sustainable Development is related to the principle of sustainable use which is the prudent,
rational, wise or appropriate exploitation of natural resources.
3. Intergenerational Equity
It believes that humanity must hold the natural and cultural environment of the Earth in
common both with other members of the present generation and with other generations, past
and future.

Intergenerational equity is distinguished from intragenerational equity is that the latter

mandates the equitable of prudent use of natural resources for the benefit of other people, or
nations within the same generation.

HUMAN RIGHTS
These rights are entitled to simply because they are human. These are the fundamental and inalienable
rights which are essential for life as a human being. Human rights are set of principles, laws, rules and
standards designed to protect and promote human dignity.

EQUALITY
Equality before the law or having equal opportunities before the law.

Common Humanity
Men are equal in that we belong to a common species homo sapiens who speaks a language, use
tools, live in communities and can interbreed despite racial differences.
Moral Capacities
People have the capacity to care, help, nurture and defend other people in all sorts of unimaginable
ways.

Equality in Unequal Circumstances

EQUAL ACCESS BEFORE THE LAW

It seeks to equalize access to and opportunities to avail of the benefits of law.

Positive discrimination – reverse kind of discrimination that attempts to promulgate equal opportunity
to members of a traditionally discriminated minority. Its function is to compensate for past cases of
exploitation or persecution by the majority group.

LIBERALISM
Liberalism is the belief that the value of individual human personality, and a profound conviction that
all human progress has been due to the free exercise of human powers.

Negative Liberalism – also called classical liberalism, it refers to a state being free from constraint. It
focuses setting limits to government influence and intervention.

Positive Liberalism – also called positive freedom, it believes that it is not enough for the government
to leave the people to themselves. It argues that government must also actively promote various types
of rights and freedoms necessary for a liberal society to flourish.

MORALITY
It means proper behavior of a person on society. Morality has to do with human activities that are
looked upon as good or bad, right or wrong, correct or incorrect. This means that the act or behavior
must conform to the accepted rules for what is considered right, virtuous, just or proper conduct.

Five differences between legal and moral duties:

1. Legal duties concentrate on external behavior, while moral duties concentrate on the internal
process of intention, motive and conscience.
2. Legal duties are accompanied by corresponding rights.
3. If somebody violates a legal duty, he or she is punished by the state.
4. Law is formulated by an easily identifiable authority; and
5. The legal verdict in a given situation is black and white, regardless of how complex the issues
were.

Morality and Good Manners

Etiquette which is the doing of good manners is sometimes regarded of a component of morality.