Legal Philosophy (Notes)

CHAPTER 12 KINDS OF LAW

1. DIVINE LAW -also known as eternal law -the world is ruled by God and that the whole community of the universe is governed by Divine Reason (conception of things is not subject to time but is eternal) Human reason -an image or reflection of the divine mind Divine revelation -Ten Commandments and other laws and principles revealed by the prophets  Theodicy -philosophical study of God using reason -rational and systematic study of religion and religious truth -the science which treats God through the exercise of reason alone  Theology -study of God through the revelation and Holy books -sets forth our knowledge of God drawn from the sources of supernatural revelation 2 types of Divine Law a. Eternal law -divine government of the universe -laws in the very nature of all created things implanted at the very moment of their creation by God b. Divine positive law -laws promulgated by God through his prophets as found in various holy books 2. HUMAN LAW -are creations of the “secondary governors” Legal Philosophy - Finals

-conforms to eternal law -incumbent upon the human lawmakers to discover the directives and purpose of the eternal law Aquinas’ Division of Human Laws a. Civil Law -old law for Roman citizens, composed of statutes and customs having the force of law -large legislated b. Law of Nations -law for non-Romans -made by judges who drew partly from jus civile, on those rules of laws common to all nations -international law (concerns (concerns relations between states which are “in state of nature in relation to one another”, since the sovereignty of the state is the  principle  principle of its relations relations to other  other ) 3. NATURAL LAW -foundation of what is true and good can be accessed through the aid of human reason -foundation s of true law which is morality and justice, are immanent in nature -an unjust law is not a true law -there is a higher law than the constitution -governs men in the state of nature Principle Principle of natural law a. Audi alteram partem -right of the person concerned to be heard, or simply due process b. Nemo judex in causa sua -One should not judge a case in which he himself is interested 4. POSITIVE LAW -made by man -valid in a particular state, and this legal authority is the guiding principle for the knowledge of right in this positive form -originates from human legislation using reason Page 1

-includes the elements of choice and freewill, as well as the freedom to change the law when the need requires

5. CRIMINAL LAW -deals with acts or omissions committed against the community for which penalties are imposed by the state -defines what society deems as public wrongs and establishes methods for their prosecution and punishment Legal Characteristics of a Crime a. A law prohibits certain acts b. A person breaks the law c.  The act is seen as harmful to society d.  The state prosecutes the offender in court according to the rules of criminal procedure Classification of Offenses a. Economic offenses b. Offenses against the state c. Offenses against other people d. Offenses against oneself Elements: a. Actus Reus - the guilty act (voluntary commission or omission ) b. Mens Rea - the guilty intention (specific desire- mental element ) c. Causation -act or omission must have been the cause of the specific injury complained of *novus actus interveniens - new intervening act must occur before the chain of causation can be broken *moral condemnation  -unique feature of criminal law not found in civil law -expression of the community’s hatred fear or contempt for the convict which alone characterizes physical hardship as punishment

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6. CIVIL LAW -relates to matters between private individuals and institutions -designed to regulate the people’s private relationship -matters regarding family, property, inheritance or contractual relations Civil law

Criminal law

-concerned with rights and remedies involving private persons

-defines offenses against the community at large

COMMON LAW AND CIVIL LAW SYSTEMS A. COMMON LAW -case law or judge made law  -body of legal principles evolved by  judges from custom and precedents of previous cases -keeps the law in harmony with the needs of the community where no legislation is applicable or where legislation requires interpretations *advantages:  -crucial or critical issues cannot be set aside -doctrine of precedent ensures continuity of the law -weight of tradition and custom is always considered in the evolution of the law B. CIVIL LAW -not based on case law, judges’ decisions or customs -based on legislated law particularly Roman law *advantages: -legislature may by-pass the passage of a law on the ground that it is not popular -congress may change the law any time, and at will, with or without regard to the prevailing custom *disadvantages: -a good law or policy may just be wiped out in an instant depending upon the mood of the incumbent congress Page 2

Role of the Judge in Common and Civil law Systems A. Adversarial System - judge is an “umpire”, detached and mostly uninvolved -judge maintains an air of impartiality and objectivity at all times -commonly used in countries with common law system  B. Inquisitorial System - judge is an “inquirer’  -judge conducts inquiries in several stages, and court procedure tends to be informal -judge acts as a mediator between the parties with the aim of bringing them to settlement -commonly used in civil law   countries *Note: the Philippines is a civil law country which adopted the adversarial  procedure. CHAPTER 13 LEGAL PHILOSOPHY SCHOOLS OF THOUGHT NATURAL LAW THEORY -the essence of law is morality and  justice -what is good and fair can be found within nature itself -there are rational and objective limits to the power of the legislative to enact laws (set by morality and justice) A. Ius Naturale -“natural right” or “natural justice” -believes in the equality before the law; person is entitled to be heard (hearing rule); and a dispute must be decided by an impartial judge (rule against bias) B. Overlap Thesis  -notion that law and morality intersect -natural law was created at the same time man was created and that no human law is valid unless it conforms to natural law Legal Philosophy - Finals

CHAPTER 14 LEGAL PHILOSOPHY SCHOOLS OF THOUGHT LEGAL POSITIVISM -“classical legal thought” -opposite of natural law theory and regards laws validity in terms of social convention i.e. law as posited by the society and not by the ideas of morality or notions of justice -law is law when it is backed by the coercive power of the state -adheres to the political criterion test *law and politics - interplay and share commonalities: law is a political tool *Legal decisions - are political that some degree of control is required *authority –  participation in making decisions in accordance with community perspectives *control –  effective participation in the making and enforcing of decision A. Separability Thesis -there is no necessary connection between law and ethics -morality is neither an element nor component of law B. Is-ought Fallacy -law is law even it is immoral -legal requirement is what makes a true law and should not be confused with its moral requirement -law as it is   should be distinguished from law as it should be  -proposition that “a law is valid” is not the same as “one ought to obey it” Austin’s Command Theory of Law -laws are commands from a sovereign backed by threat of punishment -in order to interpret a legal system, one must first identify a sovereign whose commands are habitually obeyed Page 3

Hart’s Rule of Recognition -subjects or citizens voluntarily obey the laws of the land because they accept as valid the rule making institution Dworkin’s Theory of Adjudication - judges can avail of other “standards” or “principles” in resolving conflicts -law is a “seamless system” -if judges cannot find applicable legal rules, they can turn to principles or other legal standards for answers inside the seamless web of law *rules –  an all or nothing choice, either applies to a case or not; once an applicable rule is found, it will determine the outcome of the dispute * principles –  represents various norms and values of the society; makeup the community’s “moral fabric”; judge is free to search for answers in other standards and societal principles Soft Positivism (Incorporationism) -a law may still be considered law even if society puts in additional criteria -the two’s relationship are merely incidental, which means that they may still be separated because morality is not innate component of what law is Hard Positivism (Exclusive) -denies that a legal system can incorporate moral constraints to make a law legal -laws validity does not depend on moral arguments but can always be traced back to its source, such as the legitimacy of its promulgators *Source Thesis -to see if a law is valid, one may  just check if it comes from a valid congress and its interpretation comes from a legitimate judicial agency

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CHAPTER 15 LEGAL PHILOSOPHY SCHOOLS OF THOUGHT LEGAL REALISM -law is “indeterminate” -laws as found in codes and  jurisprudence does not always determine the outcome of a case, it may be determined by what the judge ate for breakfast -acknowledges that judges must “construct” the law, and thus guide legal  jurisprudence -the law is what judges or administrative officers so decide * judicial legislation –  the latitude of  judges to interpret laws gives them the power to define, even “create” the law -the inherent lawmaking aspect of the decision maker is one of necessity and not one of a choice -judicial discretion is given to the court under Art. 9 of the Civil Code: the legislator recognizes that in certain instances the court “do and must legislate” to fill in the gaps of law Legal Instrumentalism -laws and principles and ideas are “tools” or “instruments” in resolving the puzzles of life in order to create possibilities for human experience -looks at law beyond the text or legislative intent Discretion Thesis -a view in legal realism that judges unwittingly make “new law” in deciding disputes in the sense that a judge is often influenced by his potential, religious or moral convictions and not strictly by legal considerations Prediction Theory of Law -law is nothing but the prediction of how the courts should behave; prophecies of what the courts will do in fact and noting more pretentious

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CHAPTER 16 LEGAL PHILOSOPHY SCHOOLS OF THOUGHT LEGAL FORMALISM -a system that stresses on “form” as the “ultimate ground for explanation” any case or phenomena -law is a set of rules and principles independent of other political and social institutions 

Interpreting a law roughly falls into three types: a. According to lawmaker’s intent b. According to recipients’ understanding c. According to some other factor such as promoting a particular culture, policy or ideology

Intentionalism -interprets the law according to the lawmaker’s intent -doctrine of original understanding *originalism a. original intent theory  –  law’ s interpretation should be consistent with the meaning held by the people who drafted it b. original meaning theory  –  interpretation should be based on what the ordinary and reasonable people living at the time the law was written would have understood them Reynato Cayetano vs Christian Monsod, G.R. No. 100113, Sept. 1991 Monsod after passing the bar, worked in his father’s firm for one year, then worked as an operations officer in the World Bank Group. He also worked with the Meralco Group upon his return to the Philippines, and then became chief executive officer of an investment bank, legal and economic consultant of various companies, National Chairman of NAMFREL, member of the 1986 Constitutional Commission, and then became a member of the Davide Commission.

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Interpreted in the light of the various definitions of the term “practice of law”   , particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod’s past work experiences as a lawyer-economist, a lawyer-  manager, lawyer-entrepreneur of industry, a lawyer negotiator of contracts, and a lawyer-legislator verily more than satisfy the constitutional requirement –  that he has been engaged in the  practice of law for at least 1 0 years.

Textualism -interprets the law according to the reader’s understanding -focuses on “what the text would reasonably understood to mean”, rather than upon what it was intended to mean CHAPTER 17 VARIOUS MORAL APPROACHES RELATIVISM -the view that there are no absolute or standard criteria of morality; that what counts as ethical depends upon how a society or historical period defines something as ethical -different cultures have different concepts about what “ought to be” right behaviors for its members CHAPTER 18 VARIOUS MORAL APPROACHES UTILITARIANISM -“greatest happiness theory”  - one must act so as to promote the greatest happiness –   or pleasure –   to the greatest number of people -an act is good if it contributes to overall utility A. Act Utilitarianism -acts that produce the greatest good for the greatest number -rules or laws may be abandoned in those instances where following them would not produce the greatest good for the greatest number (rule is to be Page 5

disregarded if it clearly conflicts with the general welfare) B. Rule Utilitarianism -adopt the rules that will produce the greatest good (or happiness) for the greatest number CHAPTER 19 SOCIOLOGY OF LAW FUNCTIONS OF LAW A. SOCIAL CONTROL -usually done through the threat of punishment and seldom based on reward; disobedience can have severe repercussions thus one is motivated to obey It may be done through: 1. Internalization of group norms; and 2. External and more formal pressures. B. DISPUTE RESOLUTION -law traditionally resolves the more serious disputes of the society, less serious conflicts are settled through negotiation, fist-fight or avoidance -i.e. Katarungang Pambarangay Law, Court-Annexed Mediation, etc. C. SOCIAL CHANGE -laws have far-reaching effects to society -i.e. local ordinances prohibiting smoking in public vehicles and building had reduced incidence of second-hand smoking CHAPTER 20 SOCIOLOGY OF LAW SOCIAL THEORIES OF LAW A. EUGEN EHRLICH (1862-1922) -believed that positive law which looks at “law” as the sum of statutes and court pronouncements could not adequately capture the legal reality of a culture or society

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*legal norms -   strictly legalistic *social norms - governs day to day conduct -   permeate deeper in the fabric and consciousness of the society, hence must be regarded as a component of “law” -   living law that regulates social relationships and help strengthen society B. EMILE DURKHEIM (1858-917) -looks at law as a tool for integration -a society progresses from simple to complex the role of law changes *Theory of Legal Change -from repressive laws to restitutive laws a. repressive  –   laws of small, closeknit, highly religious and traditional societies where a small infraction of the rules is met with severe repercussions -used to evoke fear, and consequently obedience from members b. restitutive –  allows violators to make amends for damage, and reintegration to the mainstream -violators are not stigmatized for life but are rather recycled back to society

C. MAX WEBBER (1864-1920) -pre-industrial laws are personalistic and partial to privileged sectors -laws are not usually applied equally and fairly; a legal “double standard” seem to exist in the implementation of the law such that the influential few often get away with or get around the law D. TALCOTT PARSONS (1902-1979) -law’s role in the society is to be that integrativist mechanism of social control

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E. NEO MARXIST VIEWS OF LAW (1960’S) -law as a tool for power, serving the rich and the powerful rather than used for the delivery of justice to citizens CHAPTER 21 SOCIOLOGY OF LAW THEORIES WHY LAW CAME INTO BEING A. CONSENSUS THEORY -agreement (consensus) among members of the society in transforming their norms and values into laws, giving the former more strength and general enforcement -society as an expression of its own values and norms developed and institutionalized in time by its members B. CONFLICT THEORY -emphasizes interests and how these interests interact to form “conflicts” which are but normal facts of societal life -coercion rather than consensus cause social order -law “serves as the powerful over the weak” and that law “used by the state…to promote and protect itself” CHAPTER 21  TYPES OF JUSTICE 1. UTILITARIAN JUSTICE -looks at law or an act’ s ability to maximize benefit for society -moral worth of an action is determined by its outcome 2. RETRIBUTIVE JUSTICE -aims to avenge the wrong done to society -it seeks to enact rules which avenge crimes proportional to their gravity 3. RESTORATIVE JUSTICE -concerned with making the victim whole and reintegrating the offender back to society

4. DISTRIBUTIVE JUSTICE -concerns with the “fairness”, “proportionality ”, or “equality ”  in the distribution of things i.e. money, property, privileges, opportunities, education or rights Aristotle:   the basis of distribution of rewards should be virtue i.e. one’ s intrinsic worth and natural merit (each must enjoy the fruits of his own labor) a. Strict Egalitarianism -believes in radical equality i.e. all should have the same level of goods and services -all persons need be treated nondiscriminately regardless of race, religion, sex, etc. -strict equality in the allocation of resources b. The Difference Principle -allows inequality in the distribution of goods only if the inequality will benefit the worst-off members of society -permits inequalities of wealth and income if those inequalities benefit the worst-off group in society c. Desert-Based Principle -focuses on merit or effort or some other quality as the basis for desert d. Libertarianism -equal liberty principle -each individual should have an equal right to basic liberties (or autonomy) -distribution of wealth and income flows from the free choices made by individuals, what matters is whether the transactions or transfers are themselves just -rejects the idea of distributive justice as applied to the distribution of wealth but tends to be strict egalitarian as for the distribution of basic liberty rights -000-

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