1 c Philo Midterms Reviewer

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA  ASTAÑEDA G AITE MURAO PREFACE

● Law is one of the institutions that allows man to live in civilized society. ○ Growth of civilization civilization has has generally been linked with: ■ gradual development of a system of legal rules

■ machinery

IS LAW NECESSARY? A DIALOGUE PHILOSOPHERS (BY SOMMER)

BETWEEN

TWO LEGAL

● Aris and Bato, two legal philosophers who who seem to be representations of Aristotle and Plato ● “What would life be like without law?” → “Is law necessary?”

for

regular

and

effective

enforcement 

● Laws do not exist exist in a vacuum vacuum but are found found together with with moral codes of differing complexity or definiteness. ○ There is tension between law and moral codes. ○ The belief in a Moral Law has an impact on how man sees actual law prevailing in his society. ■ Moral Law is a higher law law by which which mere man-made laws can be judged ■ Higher laws can can override or nullify nullify certain human laws in history. ● The most vital issue of the modern state state is the freedom of the citizen and its preservation . ○ Relationship between law and liberty is a close one: either used for tyranny or gives effect to freedoms ● Functioning of law has been closely associated associated with the idea of a sovereign state. ● Social sciences sciences hold the key to shedding light on the issues of legal institutions and rendering modern solutions. ● The nature of the the judicial process must must be studied to understand legal reasoning and development.

○ Life without any law would be unrealistic and exceedingly difficult.

■ Man needs law to live in society. society. ■ Life would be “solitary, poor, nasty, brutish and short .” .” - Thomas Hobbes ○ Potshots against Lloyd’s approach: ■ Armchair philosophy - merely theoretical and speculative ideas which do not deal with realities and facts ■ Overstating the human human nature argument - not all men are prone to violence and theft ● Human nature argument supposes that all people are static in nature. ○ Discussion of representative laws leads to a classification of laws: ■ Truly necessary necessary laws (indispensable (indispensable laws): against theft, violence and potential wrongdoers, guarantees private ownership and compensation, redress of harm or broken agreements

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA  ASTAÑEDA G AITE MURAO

○ ○ ○ ○

■ Improves the quality of life in society (necessary / useful laws): health, education, public safety ● Without these laws, laws, life would be wasteful and confusing. ■ Laws with debatable debatable ends, not necessary necessary (convenient laws): religion, morality, convenience The extent extent of man’s freedom freedom determines determines the quality of his life in society. - John Stuart Mills Law facilitates efficient social change. Men learned learned in law assist the layman layman in knowing and applying such laws. It is not needed that laws are true, but they can stand because they are needed.

CHAPTER 1: IS LAW NECESSARY?

● Historically, law has been considered unnecessary unnecessary by ideologues and religious institutions ○ In every day and age, certain groups feel a certain certain unease when it comes to authority while claiming that their own denomination points to a happier life ○ However, they are not usually able to prove prove that their their doctrines are plausible ● The Nature of Man ○ Ideology 

■ Forms one’s one’s outlook about the world, upon man’s relation to society and the world ■ Law has an ideological character  ○ Two views on the nature of Man Man ■ Punitive view  ● Man as “demon,” intrinsically evil ● Law as indispensable restraint; society impossible without law ● Punishment, not rehabilitation ■ Positivist view  ● Man as “angel,” intrinsically good ● Looks back to a Golden Golden Age of primeval innocence and simplicity ● Defects arise from problems in society, especially law and government ● Rehabilitation rather than punishment ○ The focus of current current legal systems systems is law reform rather than eliminating it completely. ● Examples of the two views of human nature

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA  ASTAÑEDA G AITE MURAO

○ ○ ○ ○

■ Improves the quality of life in society (necessary / useful laws): health, education, public safety ● Without these laws, laws, life would be wasteful and confusing. ■ Laws with debatable debatable ends, not necessary necessary (convenient laws): religion, morality, convenience The extent extent of man’s freedom freedom determines determines the quality of his life in society. - John Stuart Mills Law facilitates efficient social change. Men learned learned in law assist the layman layman in knowing and applying such laws. It is not needed that laws are true, but they can stand because they are needed.

CHAPTER 1: IS LAW NECESSARY?

● Historically, law has been considered unnecessary unnecessary by ideologues and religious institutions ○ In every day and age, certain groups feel a certain certain unease when it comes to authority while claiming that their own denomination points to a happier life ○ However, they are not usually able to prove prove that their their doctrines are plausible ● The Nature of Man ○ Ideology 

■ Forms one’s one’s outlook about the world, upon man’s relation to society and the world ■ Law has an ideological character  ○ Two views on the nature of Man Man ■ Punitive view  ● Man as “demon,” intrinsically evil ● Law as indispensable restraint; society impossible without law ● Punishment, not rehabilitation ■ Positivist view  ● Man as “angel,” intrinsically good ● Looks back to a Golden Golden Age of primeval innocence and simplicity ● Defects arise from problems in society, especially law and government ● Rehabilitation rather than punishment ○ The focus of current current legal systems systems is law reform rather than eliminating it completely. ● Examples of the two views of human nature

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA  ASTAÑEDA G AITE MURAO Type of Philosopher 

Stance

Occidental

NO

Harkening back to a Golden Age of idyllic primitivism

2. Legists

Oriental

YES

Good ways of man attributable to teaching of rituals and restraints of penal laws

3. Shastra

Oriental

YES

Men are covetous and passionate by nature. Without laws, the world would be a devil’s workshop which followed the logic of fish (rule of the stronger)

4. Bodin

Occidental

YES

Man’s original state is that of disorder and violence

5. Hobbes

Occidental

YES

State of perpetual warfare, “nasty, short, brutish” life

6. Hume

Occidental

YES

Without law, government and coercion, human society could not exist

7. Machiavelli

Occidental

YES

Men are naturally bad and will not honor promises

8. Ovid

Occidental

NO

Golden Age where Man knew right and wrong without need of laws (from the Metamorphoses)

9. Seneca

Occidental

QUALIFIED NO

Primitive man was happy and ruled by the best and wisest rulers. However, the happy society was rent asunder by avarice / greed.

Christian Church Father

QUALIFIED YES

State law and coercion are not sinful but part of the divine plan in order to mitigate sin. However, in the Civitas Dei , or City of God / a mystical body, justice will rule. Thus, no more need for human laws.

1. Rosseau

10. Augustine

Attributable Passage

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO 11. Aristotle 12. St. Thomas Aquinas

13. Plato

14. Adam Smith

Occidental

YES

Man has aggressive drives curbed by laws.

Christian Church Father

QUALIFIED YES

State is not a necessary evil but a natural foundation for human welfare. Law is a guide for man’s good / social impulses towards the realization of his goals.

Occidental

QUALIFIED NO

Rational harmony ruled over by benevolent philosopherkings rather than law. Later on, he would recant these statements and agree that laws are necessary in The Laws.

Modern-Day/ Anarchist

QUALIFIED NO

Laissez-faire economics, where government and law

stifled the natural development of society; however, laws protecting property are needed for an efficient free market. 15. Godwin

Modern-Day / Anarchist

NO

Evils of society are not from man’s sinful nature but from the effects of oppressive human institutions. Moral and social norms rather than coercion.

16. Bakunin and Kropotkin

Modern-Day / Anarchist

NO

The state, law, coercion and private property were the enemies of human happiness and welfare.

17. Tolstoy

Modern-Day / Anarchist

QUALIFIED NO

Anarchy based on early Christian communities, nonviolence and renunciation of private property  Anecdote 1: The Stolen Waistcoat  All have an equal right to anyone’s property. The colony did not survive.  Anecdote 2: Landownership  A man with a title appears. The colony is sent out and breaks up.

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO 18. Karl Marx

Modern-Day / Anarchist

QUALIFIED NO

19. Elliot Smith

Modern-Day / Anarchist

NO

20. Herbert Read

Modern-Day / Anarchist

QUALIFIED NO

Law is a coercive system devised to maintain the privileges of the ruling class. However, creating a classless society will need an interim period where there is total state control over property. Marxism then tended towards coercion rather than abolition of law and state control. Man is whole, kind and well-intentioned. Civilization creates artificial aims which sow discord and envy. Man has always formed groups for aid and needs, however there needs to be harmonious interrelation between and among groups. Anarchists are concerned with such harmony and removing the need for hierarchies / rulers, not a society without order. Two ways of promoting harmony: Elimination of economic motives. Matters to be solved by common sense and innate good will of people *Only general rules and norms are needed but coercive apparatus of general control must be absent.

21. Sigmund Freud

Modern-Day / Anarchist

YES

Man is not harmless or gentle. Aggressive drives can be suppressed but not totally eliminated. Living among men requires a repression of base instincts.

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO ■ Enlil ● God of the storm ● Power of compulsion, god of coercion ● Executes the sentences of the gods and leads them in war ○ Myths reflect fundamental human attitudes and purposes ■ Humans need order ■ Order demands two elements: authority and

CHAPTER 2: LAW AND FORCE

A

De jure  A-F=Law+Order

F

AF

De facto F-A=Law+Order

force

F

Rule of law  A+F=Law +Order

■ Lack of authority does not allow public order to flourish ■ Lack of force disallows the universe to enter statehood ■ Order of the universe reflected Mesopotamian society ■ Myths gave a cosmological foundation to link legitimate authority with force on Earth ■ The idea of gods using force to impose their authority is a common feature in less sophisticated stages of religion

A

● Myth of Anu and Enlil ○ Two gods singled out in reverence ■ Anu ● God of the sky ● Issued decrees which commanded obedience by the fact of having emanated from divine authority ● Obedience as necessity, however there is no guarantee of automatic obedience ● Symbol of authority 

●

Authority

○ Law requires obedience  but not just simple obedience. ■ Not just willing or unwilling compliance ○ The notion of authority entails that some person is entitled to require obedience of others regardless

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO of whether the particular order of rule is acceptable or not ■ It may be a collective organization, not a person. ■ Peculiar authority or mystique surrounding the person / institution ■ Inspires a feeling of legitimate subordination ○ What is the source of obligation which is apparently imposed or assumed to be imposed on the subject party? ■ Preliminary answer: moral obligation. There is a connection between legitimate authority and moral obligation. It imposes a rule which calls for voluntary adherence by virtue of inherent rightness. Moral duty to obey the law because the law represents legitimate authority. ● Problem: Carrying the argument too far may lead to erroneous belief that legitimacy and morality can be equated. E.g. divine right of kings ● Rebellion: discrediting of leaders as immoral; establishment of a social contract ○ Max Weber’s ideal types ■ Not a historical evaluation of societies or a Platonic ideal but a representation of full

■

development of possibilities in social organizations Typological / classificatory , rather than

developmental ■ Simplifications  in which sociological investigation can be conducted ■ Societies can have characteristics of one or more of these “ideal types” ■ Forms of authority or legitimate domination ● Charismatic ○ Charisma – Greek for “grace”

○ Personal ascendancy which an individual may acquire in a particular society which confers an indisputable aura of legitimacy over all his acts ○ Prototypes: Julius Caesar,  Alexander the Great, Napoleon, Hitler, Stalin, Mussolini ● Traditional Domination ○ While charismatic leadership lies on a single person, his death does not necessarily extinguish charisma

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO ○ Authority derived from the personality of a leader may pass on to an attenuated form (e.g. descendants of a royal line, from Jesus’ apostles to the Catholic Church) ○ Institutionalization of practices, continuity ○ Mass traditional customs   that are binding ○ Restricts the freedom of the actual king in office ○ “The king under the God and Law” (Bracton) ● Legal Domination ○ A more developed form of traditional domination ○ Misleading   term in the sense that it suggests that law only arises in this type of authority ○ Charismatic leadership also may have rules (e.g. Justinian’s codification of Roman Law) ○ Traditional domination have rules, but they are customary rather than legislative.

○ Legal domination, is different, however, because it is impersonal and legalistic . Institutional character of authority has displaced the personal one. ○ Modern democratic state has largely abandoned charismatic leadership in favor of government having a monopoly of authority . ○ This belief in legitimacy is one that the modern state requires to exist. It is a circular argument: laws are legitimate when enacted, enactment is legitimate if it conforms to rules that prescribe procedures to be followed. ■ Necessary legal argument / fiction in order to assure a functional society. ○ Authority rests firmly in belief in its legitimacy. ●

Force

○ Societies may exist with no authority but ruled solely by force without descending into anarchy. ○ However, the state of war of upheaval does not persuade one to treat the law as force incarnate

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO ○ Coercion seems to be necessary and is personified by important institutions and persons ○ Moral arguments against force ■ Force / violence is wrong  in itself and a law that ultimately rests on force offends morality ■ Force is the very negation of law  and its use indicates the breakdown of the rule of law  ■ Problem: ● Moralists only see moral law as the only law ● Lack of establishment that morality excludes coercion ● It must be proven that law has an actual relationship with morality ○ Another argument against force stems from a misunderstanding of the operation of law ■ Force is only incidental procedure,  not

necessarily essential to the existence of the law ■ Social contract  as a necessary legal fiction ● People obey because of consent , not coercion ● Replaced by universal suffrage where individuals can adhere to the operative system of government ■ Elimination of coercion as an element of law and replacing it with voluntary consent  / acquiescence

■ Law can exist in its own right regardless if force is used ○

Force in International Law

■ Force is a less pronounced practice in international law ■ Laws are not enforceable by coercion because there is a lack of regular enforcement ■ Efforts for enforcement and coercion are sometimes frowned upon on the international scale (Suez, Belgian Congo, Nicaragua) ○ Legal Theorists and Force ■ Anti-coercionist position: Law can only be described in terms of authority ■ A comprehensive conception of law must recognize the interplay between authority and force ■ Law is a highly flexible conception ■ Coercion is not an “ideal” type or an oversimplification, however, categorizations are needed for study ■ “Ideal types” are not seen in reality, but only in a Utopia as a limiting concept. ■ There are infinite gradations of force, from blood-feud to contempt of court ■ Legal Theory requires a dynamic rather than a static approach to force in law. ○ Can We Dispense with Force? 9

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO ■ Human society would not have flourished if not for a measure of organized coercion ■ Aristotle: Man is a rational, political animal  but he has aggressive drives which must be repressed to attain social discipline. ■ Freud:  Aggressive drives  can be suppressed but not totally eliminated. Living among men requires a repression of base instincts. Man cannot get rid of these drives but it is unlikely. Instead, societies are built on coercion and instinctual renunciation. There is a connection between coercion and civilized society ■ De Maistre: Civil society is founded on the hangman

● Rules about Force ○ Laws of developed states: close and efficient regulation of force

○ Attempt to overshadow force with authority by a return to charismatic leadership ○ The view that force only becomes incidental is a “fatal illusion” ■ Modern society has a massive organized force  that has a monopoly in the use of violence. ■ State apparatus must be so big and undefeatable that others will not dare resist it.

■ Only certain individual persons and institutions have such powers (e.g. the President, police, military-industrial complex) ○ The use of force requires that certain procedures and standards are met to safeguard the people. ○ Not all rules should have penal consequences, considering the tendency of modern society towards defining duties without corresponding sanctions. CHAPTER 3: LAW AND MORALS

● Relation between law and morals is far from simple ● Law and Religion ○ Divine origin and sanctity of laws ○ Law, morality and religion were inevitably interrelated ■ Lawgivers are mythical, semi-divine or heroic ■ The divine origin of laws lent authority to them ■ Moral duty to obey the law ○ Human penalties still existed. If humans could not punish the crime, the divine would. ○ Polytheism offered flexibility  in administration of justice. One god may punish, one g od may stay punishment. ○ Monotheism introduced a stern, inflexible Divine Will  where squabbles of gods would not mitigate the full force of law. The whole of the law did not necessarily come from the divine. Distinctions were made between fundamental, unchanging laws and  man-made laws

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO  Aspect

HEBREW

GREEK

Monotheistic

Polytheistic

Prophetic writings. Prophets are those with extraordinary charisma and passion for divine will

Oracles, priests

Divine Law

Imperative, obligatory and punitive

Fate, mysticism did not affect human laws

Human Law

May be decreed by kings and prophets anointed by God. In case of conflict with divine law, the latter shall govern.

Man-made laws may not always be reasonable or valid. They must be subject to a higher law of reason. Its validity is not subject to divine stipulation

What is law?

Law is simply the moral / religious law set down by God through the prophets.

Law is a reasonable command needed for society to flourish.

Irrational and mystical, a matter of faith

Rational order of the universe, ascertainable by rational investigation; human reason

Obscurity of language, persuasion, limitless interpretation leads to either rigid orthodoxy or anarchy

----

If a law is immoral, it does not have to be obeyed. God has the last word r egarding law and justice.

Illustrated in the Apologia of Socrates in Plato’s Crito: law, even if contrary to reason, must be obeyed.

Form of religion Language / mode of transmission

Focus of the law Dangers

Moral Duty to Obey the Law

Man agrees to the rules laid down by the state. If he should break them, he must face the punishment laid down in the law. Obedience to the law of the state is the highest morality. Moral law does not override state law. Citizens, should however, move to amend laws contrary to reason.

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) C B AQUILOD C ASTAÑEDA G AITE MURAO 

Relation of Law to Morals o

o

o

It appears that the Greeks are nearer to the prevailing opinion the modern world. There are those who argue that the duty to obey the state is of prime importance. Hegel: the individual is treated a submerged in the higher reality of the state , whose superior wisdom could hardly be expected to be open to the persuasion of an individual citize that it was in error, or that its courts were unjust or immoral, since the state itself represents the very embodiment of morality  his philosophy has prove to be so influential in relation to later totalitariian doctrines The limitations present in cases where morality was in conflict with the provisions of positive law  the overriding moral duty might to be to obey the law until persuasion is effective to bring about legislative changes  there may still be extre e situations where the law dictates acts of such patent immorality 

the moral duty is that of rejection, rather, than obedi nce to the law



Intersection between law and morality is misleading -

where there is common ground between the two, there is kind of identity this is only two-dimensional portrayal o



Law and morality reinfor e and supplement each other 

as part of the fabric of social life Moral codes, by recognizing that we ought generally to refrain from such acts, supplement the force of law which equally forbid them the moral duty to obey the law is generally accepted, and plays an important role in establishing the authority of the law nd ensuring obedience to it similarity of normati e language that each employs both lays down tha it is “my duty to do this or do that”  dangerous i the sense that it connotes that law must necessarily connote moral obligation o

o

o

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO 

Where Law and Morals Diverge o

o

o

o

Example : the law may condemn/punish sexual immorality but there is a moral duty to save/preserve life The law shrinks from pursuing what may nevertheless be recognized as the authentic path of morality Higher ethical attitude may not be sufficiently embodied in popular sentiment to be productive of legal action in conformity with it  only a small part of the population who have the moral force to produce sufficient change in popular sentiment  this brings the spread of more human moral sentiments and standards Law deliberately prefers to abstain from supporting the moral rule 

machinery is too cumbersome



more social evil may be created than prevented John Stuart Mill : law should not intervene in matters of private moral conduct more than necessary to preserve public order and to protect citizens against what is injurious and offensive; there is a sphere of morality which is best left to individual c onscience Criticism: criminal law depends for its







standards and without its influence, enforcement of such laws may get weaker An Example from Modern Divorce Law o

o

o

o

Until 1969: grounds were based on matrimonial offense (e.g. adultery, cruelty, desertion) Divorce Act of 1969 - sole ground was to be the irretrievable breakdown of marriage It was difficult to set a test or standards to determine whether the spouses should be allowed to divorce  it instructive to compare cases where a decree has been granted applying a test One of the aims of legal process -> general uniformity of result in cases of similar kind

applying various criteria to actual cases coming before the courts  in the process, rational principles are gradually developed which can be applied in a multitude of differing situations without sacrificing any substantial measure of justice Society is provided with a more subtle and 

o



sophisticated means of bringing the law into contact with the needs of current morality The Ladies’ Directory Case o

The publisher of booklet giving information as to the addresses, telephone numbers, and other particulars of various prostitutes was held guilty of conspiring to corrupt public morals

effectiveness on incorporating moral

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO o



House of Lords : role of court as custodian of public morals and its duty to preserve the moral welfare of the state  it is up to the jury to ascertain the requirement of public morals

more rational form of sentencing policy can operate 

the actual commission of the offense,

Crime and Punishment o

o

if the law were to confine itself to a more limited sociological objectives  eliminate moral judgments from criminal law  protect society and reform the prisoner Morality impinges upon law:  “guilt ” is linked with the idea of moral responsibility ; morals reinforce the authority of the law and duty to render obedience to its decrees  “responsibility ” in law - excluding the possibility of guilt if there exists some circumstances of excuse which causes us to adjudge the accused not morally implicated in the deed which constitutes the offence “mens rea” - guilty mind; entails a certain mental element Circumstances which negative this mental state may relieve the accused of legal responsibility (exempting circumstance) punishment to be inflicted - by eliminating moral responsibility, a 



Compromise: retaining conception of guilt and responsibility in relation but eliminating it from consideration of punishment









the

removes the burden of determining the degree of punishment and its possible psychological effects to the convict but would have to regard the protection of the public - if his release would involve serious peril to other members of the public, the court is required to detain him release of the prisoner depends on the level of danger he brings to the public if this would be effective, then criminal law would be transmuted into an inquiry into the facts of a particular crime and the social, mental and other aspects of the background of the accused person, thus removing the notion of responsibility



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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO 

Conflicts Between Positive Law and the Moral Law o

Three main attitudes which may be adopted towards the possibility of such divergence between law and morals Law and morals necessarily coincide  either  because the moral law dictates the actual content of human law first alternative: moral law is valid  and that nothing which does not conform to the moral law itself can be properly regarded as effectively binding law second alternative: morality really means 





nothing more than obeying the law (Hobbes) 



man-made law and the moral law each enjoys a realm of its own but moral law is a higher law   and thus provides a touchstone for the validity of merely man-made law autonomy of each of the spheres of   law and morality as exclusive, so that neither can resolve questions of validity save in its own sphere

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PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO 

CHAPTER 4: NATURAL LAW AND NATURAL RIGHTS 



Idea of two laws—one resting on human authority and the other resting on natural or divine origin—has a long history and is still a prevalent belief



New approach o

Meaning of Nature o

o

o

distinction was made between the natural world and the world of human beings

o

No distinction between natural physical laws and decrees by gods and their representatives  Gods or supernatural spirits direct everything in the universe  Nature as both inferior to and subject to the latter’s control  Nature, at best, is how things or people may normally be expected to be or behave Few people attained an approach to nature differing to the abovementioned  Chinese did not arrive at the notion of fixed physical laws of nature governing the universe but rather, relied on the idea of

o



Chinese demonstrates that if the idea of the will of gods as perpetual and capricious force diminishes status of nature vis-à-vis the supernatural

Emphasis on nature may be connected to JudeoChristian monotheism to combat capriciousness of divine rule

In early society and early forms of civilization, no

harmony 

Chinese outlook places nature upon a pedestal



Nature as a fixed order   and one which was entitled to reverence since it was God-given God could thus be conceived as a divine lawgiver  Possibility of scientific approach   to laws  as fixed principles governing the physical world  No clear demarcation between unchangeable order of nature laid down by God and pattern of human conduct equally laid down to all eternity

Early Greek Philosophers o

The scientific approach to nature also received a vital contribution from the so-called pre-Socratic philosophers 

Main objective of pre-Socratic thinkers was to explore the world of nature in order to find some principle governing the universe

which would functioning

explain

its

structure

or

16

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO o



Belief in rationalism, idea that the universe is governed by intelligible laws grasped by the human mind, arose  Man’s nature is dictated by his instinct and law curbs such instinct like man’s sexual urges

o

Platonic and Aristotelian treatment of natural law and natural justice are of particular relevance up to the present time Plato:  nature as an ideal expressing the  fundamental aspiration of man if his full potentialities are attained



Justice as represented by the laws amount to



Justice as static  and law and government as





reason of his psycho-physical make up  Nature as fact or what man actually is

no more than a pale shadow of real justice rigid and inflexible



Plato has moved far from the position of his master Socrates with his reverence for the laws of the native land o  Aristotle’s naturalist philosophy   Aristotle gradually rejected the idealist philosophy of Plato  Aristotle advocated for the development of the realms of knowledge relying on 

Stoic Philosophy o

o

observation and experience

Nature as the capacity for the development which is inherent in particular things   For Aristotle, justice may either be conventional, or varying from state to state, or natural, that is common to all mankind

Nature as ideal standard  Law or justice as ideals  Aristotle: nature as the way man behaves by 

Plato and Aristotle o  Plato’s idealist philosophy

o





History of natural law owes a great deal to stoic philosophy arising after Aristotle Stoicism stressed the universality of human nature   Emphasis on reason  as the essential character of humanity  Universal law of nature ascertainable by reason provided standard for justice and man-made laws Idea of a common law applicable to all mankind clearly afforded some concrete shape to the rather abstract Stoic conception of a universal law of nature

Christianity and Natural Law o

Judaic view of law was that it represents God’s will on Earth

17

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO 



o

o

  Dichotomy of divine law only known through revelation  and natural law known through rational

o

despise things of this Earth and to expect the destruction of this world for the coming of God’s kingdom Hence, while Earthly rulers  had to be obeyed , Earthly laws were mere civil arrangements to address man’s sinfulness

unaided human reason o

At the same time, Christian writers recognized that even in an imperfect world, there was a need for  justice as decreed by God  Justice as an inferior of that ultimate divine  justice

o

Link between natural law and Christian theology increased natural law authority compared to the older Stoic law of nature  Natural law was now imposed by God   



Early Christians however, were taught to

o

Idea that mere human law is subordinate to natural law Mechanism now exists for people like the Pope to expound on natural law and require kings and emperors to recognize such

Aquinas and Scholasticism o St. Thomas, under influence of Aristotle’s position that man achieves natural development in a political society, rejected the notion that law and

government were rooted in sin and therefore necessarily imperfect



Scholastic philosophy was a highly rationalistic one that relied heavily on truth as elicited by logic and deductive reasoning  But at the same time, its premises were not chosen on rational grounds but were given by the beliefs of Christian theology Aquinas set the pattern of modern natural-law thinking by construing natural law as not a system of rules which covered the entirety of human affairs  There are cases of which the law provides and there are some where it is needed to be morally indifferent Human law was fully reinstated as entitled a major role in human government  by filling the gaps of natural law and developing further the implications of natural law in the intricacies of human relations  Aquinas did not address cases of conflict between natural and human law but he seemed to think that obedience was still

needed in order to avoid scandal  Renaissance and Secular Natural Law o  The Reformation, with its emphasis on national

Churches controlled by the state, led to a secular revolution

18

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO o

New age may be regarded as the Golden Age of the law of nature where emphasis was placed on the rational character of natural law  Unique quality of man in reason and the

enabled recalcitrant leaders to seize power claiming he represented the general will 

rational element is shared by all mankind

International law should govern international relations under this perspective Human law should give effect to natural law and incase of conflict natural law shall prevail 

o



Modern Approaches to Natural Law o Theories of natural law: Catholic, philosophical, and sociological Catholic - neo-Thomism  Philosophical - neo-Kantianism (we should 

Natural Law and Natural Rights o

  After the Renaissance, the notion that man possessed certain fundamental rights in a state of nature gained currency  These rights were translated into civil rights 

o





Post-war Revival of Natural Law o

in a civil society  Locke: social contract  gave power of rulers and government rooting from the confidence

given to them by the people, granted that rights of the people are upheld In the past, natural law was conceived as imposing duties and prohibitions but now it was a source of fundamental democratic rights 

Constitutions of democratic countries brought



actual machinery of the recognition of rights in law as legal rights Rousseau: general will as natural law   and

sole unfettered legal authority but these



always act to the norm of conduct so that our acts shall be translated into universal law) Sociological   - factual approach; attempt to apply scientific method to elicit data of man’s fundamental drives and urges

Nazi rule and International Tribunal at Nuremberg revived the call for a higher law than national laws which a natural law approach may address  It is in this century of anti-rational ideologies such as Nazism and Fascism, that rational faith in natural law re-assert itself

Relevance of Natural Law to the Modern World o Incorporation of Bill of Rights  in Constitutions Suspension of a judicial decision if it is contrary to o o

o

natural justice Recognition of a higher system of justice  to avoid conflict in international relations Natural law to aid in cases of legal predicaments like Nazism, apartheid etc.

19

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO



Physical and Normative Laws o



approach may be traced to the Renaissance  with its emphasis on the secular studies of science and humanism Empiricism associated with observation as  a means of ascertaining the laws of science influenced every field  Clear demarcation between laws of physical nature and normative laws of human conduct  Before, theological background of natural law interpreted both physical and moral laws as traceable to God’s will, effectively blurring their distinction

  Positivist

‘Is’ and ‘Ought’ o Hume pointed out that there are really two realms of human inquiry: Field of facts - what is actually the case  Field of ought   - what ought to be the case;  normative o Hume’s discussion was principally concerned to

Different from moral norms since law calls for a certain measure of regularity and observance  Moral rules on the other hand, shall be valid even if it is hardly observed like the rule that we should love out neighbors as ourselves Hume, who rejected natural law, made various suggestions as to the way in which human passions come to create moral norms 

CHAPTER 5: LEGAL POSITIVISM

o



The Utilitarians

Behavior of mankind was dominated by the influence of pain and pleasure o  Utility as what served to increase human o

o

o

happiness Bentham’s principle was aimed at maximizing human happiness according to the slogan, ‘the greatest happiness of the greatest number ’

Bentham rejected natural law which was for him nonsense upon stilts 

distinguish between fact and moral obligation o

What the law does is to lay down norms of conduct for citizens and to indicate what sanction should or ought to follow



His arguments in favor of utility were based on the fact that human reason could find no rational justification for preferring one course to another Ironically, Bentham’s principle that one man’s happiness was equal to another man’s owed to the widely established ‘natural’ right of equality

20

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO 

Move to Legal Positivism o



Utilitarianism provided the climate for the move to legal positivism through:  Firm distinction between law as it is and as it ought to be   Tendency to treat law as a science deserving to be ranked with the other sciences both in its aims and its methods

o



Positivist attack natural law idea as it creates a prescribed inherent quality to laws which form a

barrier to law reform The Judge and His Conscience o

The legal positivist would submit that the judge’s legal duty to apply the law to its letter and spirit is clear   

Law as it is and as it is ought to be o

o

o

Bentham linked his discussion of morals in terms of utility with the firm conviction that law could only be properly understood if it was treated as an autonomous field free from morals, religion, etc.  Natural law as mythical and muddled thinking by confusing legal with moral issues For Bentham, the question of goodness and badness of a law was to be adjudged by his great principle of utility. Law reform operates under this principle. Legal duty does not cease  to be a legal duty because the citizens are persuaded of the moral





Law as a Science o  Word ‘positivism’ was devised by French philosopher Comte  to designate his own particular

immorality of the duty 

Whether he chooses to comply or obey is a



Legal positivist will see apartheid as formally valid but condemn on moral grounds

If he was persuaded of its moral unconsciousness, then his moral duty is conflicted with his legal duty and he should then presumably resign As in the example of an anti-Nazi judge in Germany or anti-Apartheid judge in Africa, a man may, in fulfilling his legal duty, knowingly be acting contrary to the dictates of morality

question for his own conscience o

philosophic system  Belief that adequate knowledge could be attained only by employing the scientific method  or investigating reality by observation and subjecting its theories to empirical investigation Comte argued that there were three steps in the development of man’s approach to the world 

Religion

21

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO  

Metaphysical Positivist

 primary facts consisting of behavior of legal officials, judges, and others in relation to legal rules

  Unfortunately, at the end of his life, Comte abandoned his work o Scientific spirit also infiltrated arts and literature o



Austin’s ‘Science of Positive Law’ o

o



o

Austin was mainly impressed by the fact that law operated through a system of conceptual thought  Austin’s aim was to examine such conceptual system, its structure and fundamental notions Austin had many followers who continued his purely conceptual attitude toward legal theory



Where Positivism stands Today o

o

Treatment of legal concepts as possessing an inherent structure regard developments of law that do not adhere to such structure as illegitimate





o

Treatment of the conceptual approach that legal problems can be solved by means of logical analysis disregard role that policy  plays in arriving legal decision

Conceptual approach focused on secondorder facts such as rules of law, cases, and law books which disregard first-order or

Usually associated with disbelief in the possibility of finding an absolute standard or norm outside of the legal system itself Attack on positivism launched today in two ways:   Legal positivism by its refusal to acknowledge an absolute higher morality 

The ‘Conceptual’ Approach o Criticisms: 

The scientific jurist cannot ignore the fact that there is built into the law seeds of its own development on the lines of some value system

o

controlling legal validity, has made it possible for totalitarian dictators to bend laws   Absolute moral values do exist  and can be demonstrated to exist by various means On the whole, the positivist shares a rationalist approach to the moral values of his society rooted in European ethical thought The positivist prefers to concentrate on studying the values that are inherent in our present stage of civilization  rather than postulate absolute values   Consequently, the lawyer needs to understand the value system of his society   in order to wrestle the problems 

which arise in the legal system

22

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO CHAPTER 6: LAW AND JUSTICE 

Idea of law has always been associated with the idea of  justice o Law without justice is a mockery, a contradiction o



o

Justice in itself is a moral value  that man aims towards in order to attain the good life  What is ultimately good is a matter of choice



o

Man is a reflection of the pattern of the just society  Man acts according to his idea of a just society Justice means conforming to one’s proper sphere  Plato’s system is based on the fallacy that

each man fits a specific job or function based on his natural aptitude Formal Justice and Equality o

Modern legal and moral philosophy treats equality as the vital function of justice Law applied without discrimination may be  regarded as embodiment of justice  However, justice cannot mean that we are to treat everyone alike regardless of inherent differences



Formal Justice: equal treatment in accordance with

classifications laid down by rules  Formal justice is lacking in that it does not tell us about how people should or should not be classified Formal justice involves three related conceptions: Rules on treatment  of people in given cases  Generality  of rules  Impartial application of rules 

Substantial Justice o

Platonic Justice o



Values embodied in laws of a community, strive towards justice

What is Justice? o



o

To achieve substantial justice, formal requirements of justice need to be supplemented in two ways: Concrete Justice:  criteria to establish  whether rules are themselves just; possibly through a scale of values in cases the gravity of two values are debated upon Equity:  quality of fairness; possibly through  giving discretionary power to judges to decide individual cases under the spirit of equity as applied in deciding penalties in criminal law

Legal Justice o

o

Justice is a much wider conception than law and may apply wherever there is a code of rules, legal or non-legal Law and legal system corresponds to all three precepts of formal justice namely, rules, their generality, impartiality

23

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO o



A certain measure of coherence and regularity is a vital feature of any legal system but no exact standard can be laid by which this measure is to be  judged

o

o

Legal Injustice o

3 distinct types of cases which injustice in relation to law may arise:  Case decided contrary to what the law lays down 

Case is unduly administered contrary to



Case is judged according to formal justice

impartiality  but against substantial justice



In the abovementioned cases, an unjust law is a perfectly intelligible conception which conflicts with the scale of values which we choose to judge it Formal justice, like law itself, may fail to result in substantial justice

Law and Substantial Justice o

o

It is not enough for a system of law to comply with formal attributes as it also needs j ust content Two ways in which a legal system may attain not just formal but substantial justice: Flexibility in rules - to allow law to adapt to  needs of the society More specific guidelines-   will work well in a  country with a long tradition and fairly homogenous population i.e. Art. II of the Constitution

24

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO CHAPTER 7: LAW AND FREEDOM

● Introduction ○ Law as paradox: means of directing and imposing restraints upon human activities ○ Rousseau: “Man is born free; yet everywhere he is in chains” ■ The savage man lives a life of primitive freedom and simplicity, but ■ In practice – as Rousseau realized – man is never isolated and free in this sense but always part of a community, and the degree of freedom he enjoys or the extent of the social restraints imposed upon him will depend upon the social organization of which he is a member. ○ Restraint is not necessarily an encroachment upon liberty. ○ Ancient times: inequality, rather than equality, was regarded as the fundamental law of human society. Freedom was a guarantee of security in the station of life in which Providence had placed him ○ Modern times: freedom has assumed a central position and a more positive function in the scale of values set up as the operative ideals of a genuine social democracy on the Western pattern.

● Open and Closed Societies ○ Open society – wide field left for personal decision and for assuming of individual responsibility, e.g. Western democratic society ○ Closed society – Almost tribal or collectivist pattern where the community is completely dominant and the individual counts for little or nothing, e.g. Totalitarian society such as that of the Soviet Union or the former Nazi Germany ○ Note: there are developments even in Western society in the direction of a more collectivist society ■ increasing role of the state  in matters concerning social welfare ■ increasing conformity in patterns of social behavior and discouraging what are regarded as individualist aberrations ○ Marxist argument: without control of wealth and the pattern of its distribution, the genuine scope of equality and individual initiative remains extremely limited. ● Positive and Negative Freedom ○ Positive freedom  –spiritual conception, implying some kind of maximum opportunity for the ‘selfrealization’ of every individual to his f ull capacity as a human being. ○ Negative freedom – concerned with organizing the pattern of society, that despite the restraints and limitations that are placed upon individual action for 25

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO ○ the benefit of the society as a whole, there remains a large sphere for individual choice and initiative as is compatible with the public welfare. ○ As far as legal freedom is concerned, the emphasis is on guaranteeing the maximum degree of ‘negative’ freedom.  Attempts have been made in

modern society to try to give effect to those values which are regarded as enshrining freedoms which modern man has come to accept as an indispensable feature of ‘the good life’. ● Basic Human Rights ○ Distinctively natural-law origin ○ 2 outstanding contributions of the constitution makers of the United States and the early judicial interpreter of the constitution: ■ The idea of expressing in the written constitution  what were accepted as the fundamental legal human rights of the citizens ■ Marshall doctrine: it was for the courts (ultimately the Supreme Court) to determine the scope of these constitutional provisions. He laid down

that the court was bound to treat these rights as ‘overriding’ in the sense that any legislation or legal rulings or decisions which

disregarded them were to be treated as invalid. ○ Attempts in more recent times to express in a supra-  national form  the basic human rights which are regarded as the legal entitlement of all human beings: ■ Universal Declaration of Human Rights of 1948 ■ European Convention of Human Rights ■ Declaration on the Rule of Law sponsored by the International Commission of Jurists in 1959 ● The Main Values Expressed in Legal Freedom ○ Expanding / Contracting Rights 1. Equality and Democracy (E) recognition of equality before the law  principle of non-discrimination  in regard to  



such matters as colour, race or creed 2 important lessons from the point of view of the relationship of law to society: i. rules of law  which are note expressive of the mores or standards of conduct which prevail in a given community are likely to remain dead letters through passive or even active resistance of the citizens.

26

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO ii.

if law is to be an effective focus for giving expression to fundamental values, it cannot merely reflect the common level of morality; it must be



regarded as a positive directing force,

which can be used as an instrument of social progress, i.e. an ‘enlightened’ minority leading the ‘recalcitrant’ majority.



2. Freedom of Contract (C) Laissez faire, where one had the right to 

make his own contractual arrangements, led to startling abuses by corporations. The counter move in favour of state control started with the legislation against monopolies and restrictive trade practices .   The rise of trade unions  in recent times transformed the character of industrial relations, e.g. equality of bargaining power. The widespread growth of ‘standard-form’ contracts has further exposed the unreality of freedom to contract.

i.e. taxation was authorized by a duly elected representative legislature At the present day, the level of taxation is at a height which in previous ages would have been regarded as confiscatory . Inroads that have been made on the right to property: i. Nationalization of whole industries ii. Control   on the uses that land and buildings may be put to iii. Powers of compulsory acquisition enabling authorities to acquire land from private owners iv. In Soviet Russia,  protection of private there



was

consent ,



 property is only to articles of personal use  (not the means of production or



4. The Right of Association (C) Right of various types of groups : social,

3. The Right of Property (C) Power of the state to tax  seemed to involve 



an encroachment upon the right to property Reconciliation was found in the principle that taxation was permissible provided that

land) 



political, economic, or any kind to organize themselves and conduct their affairs This extends to the right of business enterprise to organize itself   and how far it may be legitimately restrained in order to protect the public against monopolies, restrictive practices, or fraud.

27

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO 





Right of labour to organize itself in trade unions  to deal on a collective basis with employers. Right of people to hold public meetings, for the purpose of making protests or attempting to influence public opinion and so forth. The state has a right to preserve public order   and this may frequently clash with the right of holding protest meetings, e.g. in England, owing to the outbursts of Fascism in the 1930s, it was found necessary to pass the Public Order Act of 1936, preventing the wearing of unofficial uniforms in public places and imposing restraint on the use of abusive language at public gatherings.

iii.



6. Freedom from Want and Social Security (E) 



This right in modern times has mainly developed in relation to the trade union organization of labour. Legal restraints on the freedom of labour:

i.

ii.

England’s Industrial Relations Act of 1971 (established the National Industrial Relations Court) Trade Union and Labour Relations  Act of 1974 (repealed the Industrial Relations Act)

The need to protect everyone, not merely against grinding poverty, but also in the enjoyment of a reasonable standard of life whether in or out of employment.



5. Freedom of Labour (C) 

Compulsory or semi-compulsory arbitral procedure of a judicial or quasi-judicial character in US,  Australia, etc. What is really at stake is the ability of a group of workers to hold to ransom not only a whole industry but even the whole economic life of the country.

Need to spread the risks of misfortune among the community as a whole, rather than allowing them simply to affect the particular victim of misfortune (as opposed to the Victorian philosophy of self-help).

7. Freedom of Speech and of the Press (C) Fundamental value in any community  

where democratic and egalitarian values prevail, for without these, the possibility of developing and crystallizing public opinion, and allowing it to be brought to bear upon the governmental organs of the state, is bound to be ineffective.

28

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO 







Freedom of speech can hardly be absolutely unrestricted   e.g. a law of

defamation, sedition, obscenity Freedom of speech and of the Press usually implies an absence of initial censorship , subject to any possible legal action thereafter ensuing A substitute is found in self-censorship i. Difficulty: ultimate limits of tolerance which may be required by the established value of freedom of speech Greatest significance of censorship at the present day is positive. i. Against the danger of various organs of public opinion to fall increasingly into a very few hands by reason of

8. Freedom of Religion (C) 





religious groups as being entitled to any special degree of immunity   from legal

newspaper mergers and take-overs 

The Press clearly retains a central position in mass media because of its unique capacity for serving as a focus of public opinion.



What seems to be unproved is that there is any necessarily overriding public interest which entitles journalists to complete immunity as to revealing their sources of information, although no such immunity is

enjoyed by anyone else.

The exact implications of this doctrine may appear in a very different light in different communities. Under the US Constitution, no established religion is permitted, whereas in England and established religion is an essential part of the constitution. The main aspects of freedom of religion which are apt to arise nowadays are: i. Discrimination against religious groups ii. Religious schools iii. Specific teachings of religious faith (e.g. Mormons encourage polygamy, Christian Scientists may refuse medical aid) The law generally declines to regard

regulations 9. Personal Freedom (C) 

Although personal freedom may easily be ranked as supreme among the freedoms of a democratic society, it is not easy to find specific applications which do not more readily fall under other headings of freedom, e.g.

29

PHILOSOPHY OF LAW (F R. FERRER, S.J.) 1C B AQUILOD C ASTAÑEDA G AITE MURAO i. ii. iii.

iv.

Need for ‘due process of law’   form essential elements of the ‘rule of law’  Freedom to take up any employment  is linked with the freedom of labour Choice of residence   has to do with economic resources, though the state can do much to provide suitable homes

iv.

v.

himself

also raises issues on personal freedom, e.g. passport requirement, extradition 10. The Rule of Law (E)   The Rule of Law   is herein referred to in its 

sense,

as

imposing

those

 procedural guarantees  which have been

found necessary to ensure what in American constitutional practice is known as ‘due  process of law’  

This involves: i. Independence of the judiciary ii. Speedy and fair trial   and adequate  judicial control   over police and methods of securing confessions iii.  Adequate safeguards regarding arrest and detention pending trial

insufficient financial resources to obtain suitable legal defence Accused being entitled to refuse to make statements that may incriminate

vi.

Restrictions on the freedom to travel 

narrower

 Adequate legal aid   for those with



Those charged with duty of advocacy must be free and independent , not subject to any state pressure vii. No retroactive legislation viii. A person is only answerable for his own wrongdoings  and not to be punished simply because he is in some way connected or related to the guilty person (referring to criminal liability, not civil liability for acts of his servant or agent) The scope of the modern rule of law is not limited to cases of safeguarding accuse persons, but also has a wide and important sphere of operation  in regard to the exercise of state and governmental powers, i.e. rules of administrative law which enable either the ordinary courts of law or some special tribunals to exercise supervision over administrative or quasi-judicial functions of the executive. These provide the system to

30