Philosophy of Law - Coquia

Philosophy of Law, Coquia

Chapter I DEFINITION, NATURE AND FUNCTION Philosophy is taken from the Greek words, Philos and Logos, which means “love of wisdom”. Philosophy is the study of the universe that seeks to know the truth and rational explanation of anything. Philosophy of Law is that branch of philosophy which deals with the wisdom of law. It studies the nature of law with particular reference to the origin and end of law, and all the principles that govern its formulation. It is part of p ractical philosophy. The object of philosophy of law is the study of law in universal sense, as law can also be studied as to its particular points in which the object is Juridical Science or Jurisprudence. Parts of the system of Juridical Science are: Public Law Private Law  

Parts of Public Law are: Constitutional Law Administrative Law Penal Law Procedural Law International Law     

Parts of Private Law are: Civil Law Commercial Law Those that govern relationships among individuals or juridical entities.   

Juridical Science can only inform the people of the law among certain people in a given period, answering only the question of what is established by law of a certain system (quid  juris). Philosophy of law, however, transcends the competence of each individual juridical science. It considers the essential elements which are common to all juridical systems (Kant). According to Giorgio del Vecchio, Philosophy of Law “is the course of study which defined law in its logical universality, seeks its origins and general characteristics of its historical development and evaluates it according to the ideal of justice j ustice drawn from pure reason.

Function of Philosophy of Law Philosophy of law is a quest of law l aw which appeals to reason to obtain justice.

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One function of philosophy therefore is to formulate law that is reasonably acceptable to the people to whom it iis s addressed. Philosophy of law therefore is opposed to tyranny. The practical function of philosophy is that it teaches and prepares for the positive recognition of the juridical ideal.

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CHAPTER II HISTORY OF PHILOSOPHY OF LAW Every branch of knowledge is better understood by knowing its history. History of Philosophy is a means of study and research which helps in the acquisition of regarding knowledge philosophies advocated by different philosophers in the past. It is a study of how philosophers meditated upon the problems of law and justice. Philosophy in the past has been intermingled with Theology, Morals, and Poli tics. The Philosophy of Ancient Greece The general history of Legal Philosophy started with the ancient Greek philosophers Socrates, Plato, and Aristotle. In the 15th century, the Sophists denied the existence of absolute justice. Law to them is relative. Plato in his Dialogue disputed t he Sophists. Socrates (469-399 BC) believed in a higher justice for the validity of which it is necessary that there is a positive sanction or a written formulation. Obedience to the law of the state is a duty. Socrates in this way gave the first indication of the idealistic ideali stic philosophical system. Plato (427-347 BC), a disciple of Socrates, in his two dialogues, The Republic and The Laws, presented the ideal concept of the State as “the most perfect unit”. The State dominates all human activity and must promote good in any form. Justice is achieved through the harmonious relation between the various parts of the State. Aristotle (384-322 BC), a disciple of Plato, in his Nichomachea Ni chomachean n Ethics, said that all supreme good is happiness, the product of virtue. The State regulates the lives of the citizens by means of laws. The content of laws is justice as is applied in various ways. Kinds of justice according to Aristotle: Distributive justice – applied in giving honors and respects Connective and equalizing or called rectifying justice –  applied to voluntary contractual relationship.

The Ancient Roman Jurists The Roman excelled the codification of law but the philosophical basis derived from the Greeks. Cicero said that law is not a product of choice but is given by nature. There is eternal law which is an expression of universal reason. Equity and natural law are factors in an ideal law.

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The contribution of the Romans to jurisprudence is the formulation of codes, putting together in a systematic form the rules and p ractices.

The Philosophy of the Medieval Era

–  The

Influence of Christianity

Christianity as an advocate of liberty, equality, and the unity of the human family through divine law became a challenge to the established political order. The influence of Christianity later became profound upon politics and jurisprudence. Modifying the Greek and Latin philosophies that the individual‟s supreme mission is to be a good citizen of the State, Christianity said that the good goal of the individual is not only on civil life but eternal happiness which can be obtained through submission to the Divine will. The Church asserts itself as an autonomous authority above the State. The State is concerned only to earthly things while the Church, with those that are eternal.

The Renaissance The Renaissance, a rebirth that started in the 14th century, came about to overcome the long period of excessive dogmatism. In Renaissance, autonomy and freedom of investigation were awakened. The discovery of the New World and the invention of printing press permitted the propagation of new ideas. The Religious Reformation resulted in the withdrawal of religious leaders from the authority of the Church. Accepting Aristotle‟s theory of being good in political society, law  is something that is presented by reason not by revelation. Natural, moral law world exists even if there is no God.

Philosophy of Law, Coquia

CHAPTER III HISTORICAL SCHOOL SAVIGNY, OF THE JURISPRUDENCE

VOCATION

OF

OUR

AGE

FOR

LEGISLATION

AND

Origin of Positive Law The law will be found to have already particular faculties and tendencies of an individual people, inseparably united in nature, and only wearing the semblance of distinct attributes to our view. That which binds them into one whole is the common conviction of the people, the kindred consciousness of an inward necessity. For law, as for language, there is no moment of absolute rest; it is subject to the same movement and development as every other popular tendency; and this very development remains under the same law of inward necessity, as in its earliest stages. Law grows with growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. With progress of civilization, national tendencies become more and more distinct… law perfects its language, takes a scientific direction, and as formerly it existed in the consciousness of the community, it now devolves upon the jurists, who thus, i n this respect, represent the community. Law and Law Books Requisites of a really good code: Young nations, it is true, have the clearest perception of their law, but their codes are defective in language and logical skill, and they generally incapable of expressing what is best, so that they frequently produce no indi vidual image...

Comments by Paton on Savigny In opposition to the pure science of law, the historical school considered law in direct relationship to the life of the community and thus laid the foundation on which the modern sociological school has built. How did law came to be? Law evolved, as did language, by a slow process and, and just as language is a peculiar product of a nation‟s genius, so is the law. The source of the law is not the command of the sovereign, not even the habits of the community, but the instinctive sense of right possessed by every race.

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Such is the approach of the historical school, and it naturally led to a distrust of any deliberate attempt to reform the law. Legislation can succeed only if it is in harmony with the internal convictions of the race to which it is addressed. The contribution of the historical school to the problem of the boundaries of jurisprudence is that law cannot be understood without an appreciation of the social milieu in which it has developed. The slow evolution of law was stressed and its intimate connection with the particular characteristics of a people. But in Savigny‟s particular presentation there were exaggerations of which the historical method must be freed if it is to play its true part: Some customs are not based on an instinctive sense of right in the community as a whole but on the interests of a strong minority, e,g, slavery. While some rules may develop almost unconsciously, others are the result of conscious effort. Law has been used to plan the future deliberately and not merely to express and order the results of past growth. The creative work of the judge and jurist was treated too lightly. The life of a people may supply the rough material, but the judge must hew the block and make precise the form of law. Imitation plays a greater part than the historical school would admit. Savigny encouraged what Pound has termed as “juristic pessimism” - legislation must accord with the instinctive sense of right or it was doomed to failure. Hence conscious law reform was to be discouraged.

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CHAPTER IV SEMINAL CONCEPTS (Philosophical Approach) THE REPUBLIC By Plato Classical Natural Law According to Plato, when judgment of society takes the form of a public decision of the state, it has the name law. According to Socrates, public opinion is true opinion, and true opinion i s discovery of reality. He therefore concludes that law seeks to be the discovery of reality, or more precisely, it is the true reality with respect to the administration of the state. Law may not always achieve its ideal of discovering true reality, still, Socrates adds, no society believes that that just can really be unjust. Whoever fails to reach reality, fails it find the law. Those who know always accept the same views; they will not write differently at different times on different matters. If we see some persons anywhere doing this, we can say that they have no knowledge; and if they are mistaken in what they describe as law, then that law is mere appearance and ought not be accepted to be asserting a distinction between principles and rules. Plato offers another definition of law as the opportionment of reason. Reason is apprehension of reality. So what did Plato mean by reality? Plato once tentatively defined reality as power, by which he meant that anything has real existence if it has inherent in it the power of being affected or of affecting others, no matter how small. Plato asserted that law was the discovery of true reality, appearing to mean that the moral value of law increases as it approximates the ideal l aw which exists in the world is reality.

Plato puts forward the theory that law is an instrument of social control and thus suggests the problem of the end of law. He held that the end of law was to produce men who were  “completely good”. He therefore rejected laws that did not incline to the end, asserting that a bad law is a no law. Was Plato hostile to law? Plato of the Republic preferred the adaptable intelligence of the allwise autocrat to the impersonality of the rule of law. Heknew well the simple truth, as the trial of Socrates had shown him, that the debating method of the courtroom, as distinguish from cross-examination, was perhaps the least likely to lead to the discovery of truth.

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However, in the Laws and Statesman, Plato realized that on this earth benevolent dictatorship was a counsel of perfection and that he would better propose a solution which had a possibility of realization: society should fall back upon law as second-best. He asserted that fixed laws are to be preferred to the personal administration of the unscientific ruler which is the type society usually receives. For Plato, there was not a man among us whose natural equipment enabled him both to see what was good for men as members of the community, and on seeing it, always to be both able and willing to act for the best. As Acton puts it, “all power corrupts and absolute power corrupts absolutely”. Law the generality of it could not always do justice to particular cases. The State for Plato is a man on large scale. It is a whole form of various individuals and solidly built, as body is formed of several organs, which together make its life possible. Both in the individual and in the State, there must reign that harmony which is obtained through virtue. Justice is the virtue par excellence, insofar as it consists in a harmonic relation between the various parts of a whole. Three parts or faculties exist in the soul of the individual: Reason which dominates Courage which acts sense which obeys   

Similarly, in the State three classes are distinguished: The wise to dominate Warriors to depend the social organisms Artisans and farmers who must feed it   

The cause of participation in and submission of the individual to the State is the lack of autarchy, the imperfection of the individual, his insufficient by himself. For Plato, it is only the State which is a perfect being and sufficient unto itself, and which absorbs and dominates all. The State, therefore, dominates human activity in all its manifestations. Upon its rest the duty to promote good in its every form. The power of the State is limitless. To render stronger and closer-knit the political organization, Plato suppresses social entities which are intermediate between the individual and the State. By Plato, at any rate, the personality of man is not adequately recognized. These briefly are the principal concepts formulated by Plato in the Dialogue, Republic. The Dialogue Laws, composed later, when Plato was seventy, has character different preceding one, because it does not trace out a pure ideal, but considers instead historical reality, and there appear often an admirable sense of practical experience. In the Dialogue Laws, Plato shows a greater respect for individual personality, always, however, that of free men only. Family and property are conserved, no longer sacrificed to

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the sort of Statism, as in Republic. The authority of the State however remains nevertheless very great and overpowering. Plato criticizes both monarchy and democracy, and proposes a sort of synthesis, a mixed government. Just like in Sparta, aside from two kings, there were the Senate and the Ephors.

COMMENTS ON PLATO BY CAIRNS, THE REPUBLIC How much Plato owed to his predecessors? From Solon: Happiness of the state depended upon the faithful observance of sound laws, and that it was the duty of the good citizen to see that such laws were made. From Herodutos: Law is the master. From Pindar: Law is the lord of all .

ARISTOTLE’S POLITICS

Classical Natural Law In the Platonic Minos, his definitions of law are partial. They are always relative to the problem before him, and the aspect of law which they emphasize constantly shifts in order to permit different consequences to be drawn. In the Rhetoric to Alexander, it is pointed out that in a democracy the final appeal is to reason. A self-governing community is directed along the best path by its public law, and so as king, as the embodied of reason, guides along the path of their advantage those who are subject to this rule. In a clumsy attempt to bring the two ideas together, law then is defined as the common consent of the community, regulating action of every kind. And later, in the same treatise, law is defined as the common agreement of the state enjoining in writing how men are to act in various matters. Aristotle agreed with Plato that legislation should teach virtue. Goodness, in men, he thought, could be secured if their lives were regulated by certain intelligence, and by a right system, invested with adequate sanctions. He therefore suggests that, in a general sense, the la itself is a kind of contract, so that whoever disregards or repudiates a contract is repudiating the law itself. Aristotle however said that law was much more than a contract. He pointed out that if the state did not pay attention to virtue, the community became merely an alliance.

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Aristotle developed a distinction between “constitution” and “laws”: Constitution –  the organization of offices in a state, and determines what is to be the governing body, and what is the end of each community. Laws – are the rules according to which the magistrates should administer the state, and precede the offenders. To the extent his works have survived, it is clear that Aristotle did not reach any final definition of law. He saw the inherent complexity of legal phenomena, and he found no single description of it could embrace its manifold aspects.     

Aristotle thought of law as a rule of conduct for the individual Stressed the ideal reason, the doctrine that legal precepts should have some basis in intelligibility and not be the mere expression of arbitrariness, force, or custom Presented law as a contract Distinguished law from constitution and defined as the rules in accordance with which court determine cases Pointed out law as a form of order.

Law itself, like everything in the Aristotleian system has its end and to Aristotle it was very clear that its task was to make men good. And to Aristotle, the highest good is happiness or well-being. Aristotle defined happiness as an exercise of the powers of life in accordance with the virtue throughout the whole life-time. Happiness takes its origin in virtue, it issues in pleasure, and material good-fortune is its ordinary equipment. Aristotle‟s definitions satisfy the Platonic conditions for a happy life, but as a juristic formula it has several defects: The tasks of law can no more can be caught within the net of a single formula than its numerous and contradictory aspects can be confined within the limits of one definition. The idea of the end of law is that it breaks down as it is put into practice. Aristotle held that the law has no power to command obedience except of that habit. Education also assists in making obedience to law second nature to the citizens. In the doctrine of the categories, conduct comes under the heading of Quality. Virtue is a Quality and Aristotle assumes that the category has four divisions: habits, or tendencies to do a thing; capacities for doing a thing; feelings, passions and emotions prompting us to do a thing; and external form or shape. Habituation is the only method of acquiring that settled tendency to do acts of a certain kind.

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Theory of Legislation Aristotle‟s normative view of the law is clearly apparent in his theory of legislation. That law prescribes certain conduct: that conduct of a brave man; that of a template man; that of a gentleman, and so with all the other virtues and vices, prescribing some actions and prohibiting others. Plato held that legislation should be so framed that it could be incorporated in a manual of instruction for the young. Legislation is a branch of political science. Collections of laws and constitutions may be serviceable to students capable of studying them critically and judging what measures are valuable or the reverse, and what kind of institutions are suited to what national characteristics. But those who examine such compilation without possessing a trained faculty cannot be capable of judging them correctly, unless, indeed, by accident, though they may very likely sharpen their political intelligence. Aristotle laid down a series of principles to control and guide the legislative process: 

The legislators he believed were from middle class--- ought to have his eyes directed to two points – the people and the country.

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Legislator‟s state must have a political life, a life of intercourse with other states

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A legislator must make sure that the nation‟s arms should be such as enable it to meet its foes in its on territory.

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The legislator must pay attention to the foreign relations of the state

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The legislator should not make conquest the aim of the state.

Cicero‟s principal thesis is that Law is not a product of choice, but is given by nature. According to him, Law is noted based on arbitrary opinion, but there i s a natural, immutable and necessary “just” as is proved by testimony taken from the very conscience of man. Besides this jus naturale, there exists jus gentium observed by all people which serves as a basis for their mutual relations because it based upon their common needs. And there is jus civile, that which is in force for each people in particular. There is therefore a law of nature, immutable, not artificially made but already existing, inborn. It is a uniform law, not subject to change by the action of men.

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THE ROMAN JURISTS CICERO – DE LEGIBUS Law is the highest reason implanted in nature. It is the mind and reason and mind of an intelligent man, the standard by which Justice and Injustice are measured. Reason when perfected is rightly called wisdom. Those creatures who have received the gift of reason from Nature have also received right reasons, and therefore they have also received the gi ft of Law, which is right reason applied to command and prohibition. And if they have received Law, they have received Justice also.

COMMENTS ON CICERO BY CAIRNS Cicero maintains that nothing can be nobler than the l aw of the state. Law is the bond of the society, and the state may be defined as an association or partnership in law. If a state has no law, it cannot be considered a state at all.

KANT’S THE PHILOSOPHY

OF LAW

PROLEGOMENA LAW AND ETHICS General Introduction to the Metaphysics of Morals Laws of morality are not drawn from observation of oneself or of our animal nature, nor from perception of the course of the world in regard to what happens, or how men act. But Reason commands how we ought to act, even although no example of such action were to be found; nor does Reason give any regard to the Advantage which may accrue to us by acting, and which Experience could alone actually show.

GENERAL DIVISIONS OF THE METAPHYSICS OF MORAL GENERAL PRELIMINARY CONCEPTIONS DEFINED Nature and Positive Laws – Obligatory Laws for which an external Legislation is possible, are called generally External Laws. Those External Laws, the obligatories of which can be recognized by Reason a priori without an external Legislation, are called Natural Laws. Those Laws, again, which are not obligatory without actual External Legislation, are called Positive Laws.

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Maxims – The Principle which makes a certain action a Duty, is a Practical Law. The Rule of the Agent or Actor, which he forms as a Principle for himself on subjective grounds, is call ed his Maxim. The Categorical Imperative –  The Categorical Imperative only expresses generally what constitutes Obligation. It may be rendered by the following formula: “ Act according to a Maxim which can be adopted at the same time as a Universal Law”.

INTRODUCTION TO THE SCIENCE OF RIGHT General Definitions and Divisions

A. WHAT THE SCIENCE OF RIGHT IS? The Science of Right has for its object the Principles of all the Laws which it is possible to promulgate by external legislation…

B. WHAT IS RIGHT? All this may remain entirely hidden even from the practical Jurist until he abandon his empirical principles for a time, and search in the pure Reason for the sources of such  judgments, in order to lay a real foundation for actual positive Legislation. The conception of Right: External and practical relation of one Person to another, in so far as they can have influence upon each other, immediately or immediately, by their Actions as facts. The relation of his free action to the freedom of action of the other. In this reciprocal relation of voluntary actions, conception of Right does not take into consideration the matter the act of Will in so far as the end which any one may have in view in willing it, is concerned. Right, therefore, comprehends the whole of the conditions under which the voluntary actions of any one Person can be harmonized in reality with the voluntary actions of every other Person, according to a universal Law of Freedom.

C. UNIVERSAL PRINCIPLE OF RIGHT  “Every Action is right which in itself, or in the maxim on which it proceeds, is such that it can co-exist along with the Freedom of the Will of each and all in action, according to a universal Law". Or it can be expressed as “Act externally in such manner that the free exercise of thy Will may be able to co-exist with the Freedom of all others, according to universal Law.” 

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D. RIGHT IS CONJOINED WITH THE TITLE OR AUTHORITY TO COMPEL Everything that is wrong is a hindrance of the freedom, according to universal Laws; and Compulsion or Constraint of any kind is a hindrance or resistance made to Freedom.

COMMENTS BY PATON ON KANT To define law we must distinguish between form and matter. Form is being the complex of universally valid principles presupposed in any legal judgment; Matter is the changing world of social experience which those principles construe legally. Rodulf Stammler regards Philosophy of Law as the “theory of those propositions about law which have universal validity”. According to Stammler, law belongs to the realm which chooses end and determines Mean; that law is the notion of purpose. It exists to bind together the community. Since by definition law exists to harmonize the purposes of indi viduals, law itself strives towards justice. The fundamental basis of law and of just law are, therefore, the same. Law exists to coordinate, it can operate only by unifying all possible acts of men. These principles of just law are based on the doctrines of respect and of participation. Points of Stammler‟s Theory on Law: Law can exist only if actual society exists. The realm of law and the natural world are di stinct. Most systems do assume that law is complete and exclusive system in itself.

HEGEL‟S THE PHILOSOPHY OF RIGHT Hegel believed that philosophy possessed a logic or method of its own, one that was peculiar to itself, and which constituted philosophy‟s own kind of scientific proof. This was the dialectic method, which proceeds through the development of concept. It is the process by which from the first member of the triad, say Being, a second element, Nothing, is deduced. This is possible because Being in its completely abstract form, devoid of all qualities is, Nothing. But we are able to at this point to perceive the presence of the member of the triad, Becoming. In fact we are forced to take this step according to Hegel because unless we do so, we are asserting the paradoxical proposition that Being and Nothing are the same – that a thing is both is in and is not. We must therefore search for

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what Hegel calls the unity of opposites. In the present case it is found in Becoming; a thing both is and is not when it becomes. Rational is actual and actual is rational. So far as jurisprudence is concerned with the truth i s nothing new. Philosphy‟s problem is to isolate those truths and to exhibit their l ogical necessity. The laws of nature are given and their measure is outside man. Positive law, on the contrary is posited, it originates with man. We cannot know the truth through the method of either intuitionalism or subjectivism. Philosophy‟s concern is with the rational. This means that it is an effort to apprehend the actual.

CHAPTER V AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED

Laws proper, or properly so called are commands; laws which are not commands are laws improper or properly so called. Laws properly so called, with laws improper by so called, may be aptly divided into the four following kinds: 1. The divine laws, or the laws of God: that is to say, the laws which are set by God to his human creatures. 2. Positive Laws: that is to say, laws which are simply and strictly so called, and which form the appropriate matter of general and particular jurisprudence. 3. Positive morality, rules of positive morality, or positive moral rules. 4. Laws metaphorical or figurative, or merely metaphorical or figurative.  

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The divine laws and positive laws are laws properly so called. Of positive moral rules, some are laws properly so called, but other laws are improper. Positive moral rules may be styled laws or rules set or imposed by opinion: for they are merely opinions or sentiments held or felt by men in regard to human conduct. A law metaphorical or figurative and a law imperative and proper are allied by analogy merely; and the analogy by which they are allied i s slender or remote.

Consequently, positive laws (the appropriate matter of jurisprudence) are related in the way of resemblance, or by close or remote analogies to the following objects: the laws of God; positive morality which are set by opinion; and to laws metaphorical or laws merely metaphorical.

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In the six lectures, Austin distinguished positive laws from the enumerated other kinds, and considered as a whole, “the province of jurisprudence determined.” It is a ccomplished through the following: 1. He determined the essence or the nature which is common to all laws that are laws properly so called. And, 2. Determined the respective characters of the four several kinds into which laws may be aptly divided. Having suggested the principal purpose, Austin indicated the following topic: 1. He determined the essence or nature which is common to all laws that laws properly so called. Determining the essence or nature of a law imperative and proper, Austin determined implicitly the essence of nature of a command. By commands, Austin implied: “sanction” or “enforcement of obedience”; “duty” or “obligation”; “superior and inferior.”  2. He determined the characters or marks by which the laws of God are distinguished from other laws. Austin divided the laws, and other commands of the Deity, into two kinds: 1. The revealed or express 2. Unrevealed or tacit According to Austin, the divine law is the measure or test of positive law and morality: Or law and morality, in so far as they are what they ought to be, conform, or are not repugnant, to the law of God. Since, then, the nature of the index to the tacit command of the Deity is an all-important object of the science of legislation, it is a fit and important object of the kindred science of  jurisprudence. Austin distributed laws or rules into two classes: 1. Laws properly so called, with such improper laws as are closely analogous to the proper; 2. Improper laws which are remotely analogous to the proper and which, therefore, laws metaphorical or figurative. Laws proper with much improper laws as are closely analogous to the proper are under three classes: 1. Properly so called the laws of God 2. Properly so called the positive laws 3. Properly so called, with the laws improperly so called, positive morality or positive moral rules.

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Positive moral rules distinguishing characters: 1. Laws or rules set by men to men as are not armed with legal sanctions; 2. Laws or rules as are not positive laws, or are not appropriate matter for general or particular jurisprudence. Determining the characters of positive laws, determines implicitly the notion of sovereignty, with the implied or correlative notion of independent political society. Every positive law or every law simply and strictly so called is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign supreme. A law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Without extension by metaphor or analogy, the term law embraces the following objects: 1. Laws set by God to his human creatures; and 2. Laws set by men to men. The whole or a portion of the laws set by God to men is frequently styled the law of nature, or natural law. But rejecting the appelation Law of Nature as ambiguous and misleading, Austin named those laws or rules the Divine Law or the law of God. Of the laws or rules set by men to men, some are established by superiors, sovereign and subject: by person exercising supreme and subordinate government, in independent nations, or independent political societies. As contradistinguished to natural law, or to the law of nature , the aggregate of the rules, established by political superiors, is frequently styled positive law. Closely analogous to human laws of this second class, are a set of objects frequently but improperly termed laws, being rules set and enforced by mere opinions or sentiment held or felt by an indeterminate body of men in regard to human conduct. Austin denoted them by the term positive morality. The name morality severs them from positive law, while the epithet positive disjoins them from the law of God. There are numerous applications of the term law, which rest upon a slender analogy and are merely metaphorical or figurative. Such is the case when we talk of laws observed by the lower animals; of laws regulating the growth or decay of vegetables… etc. For where intelligence is not, or where it is too bounded to take the name of reason, there is not the will which law can work on, or which duty can i ncite or restrain. Every law or rule (taken with the largest signification which can be given to the term properly) is a command.

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A command is distinguished from other significations of desire by purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase. Being liable to evil from if I comply not with you‟re a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it. Command and duty are, therefore correlative terms: the meaning denoted by each being implied or supposed by the other. The evil which will probably be incurred in case a command be disobeyed or in case a duty be broken is frequently called sanction, or an enforcement of obedience. By some celebrated writers (by Locke, bentham, and Paley), the term sanction, or enforcement of obedience, is applied to conditional good as well as to conditional evil: to reward as well as to conditional punishment. However, Austin disagreed with this, according to him, if a law hold out a reward as an inducement to do some act, an eventual right is conferred, and not an obligation imposed, upon those who shall act accordingly. From what has been premised, the ideas or notions comprehended by the term command are: 1. A wish or desire conceived by a rational being, that another rational being shall do or forbear. 2. An evil to proceed from the former, and incurred by the latter, in case the latter comply not with the wish. 3. An expression or intimation of the wish by words or other signs. It also appears then that command, duty, and sanction are inseparably connected terms. Commands are of two species: laws or rules. Most of the laws which are established by political superiors, or most of the laws which are simply and strictly so called, oblige generally the members of the political community, or oblige generally persons of a class. To frame a system of duties for every individual of the community, were simply impossible. Superiority is defined by Austin as signifying might: the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one‟s wishes. The might or superiority of God, is simple and absolute. But in all or most cases of human superiority, the relation of superior and inferior, and the relation of inferior and superior are reciprocal. The party who is the superior as viewed from one aspect, is the inferior as viewed from another.

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There are other objects improperly termed laws (not being command) which yet may properly be included within the province of juri sprudence: 1. Acts on the part of legislatures to explain positive law –  working no change in the actual duties of the governed, but simply declaring what those duties are. 2. Laws to repeal laws, and to release from existing duties. In so far as they release from duties imposed by existing laws, they are not commands, but revocations of commands. 3. Imperfect laws, or laws of imperfect obligation. A law which wants a sanction, and which, therefore, is not binding.

COMMENTS BY PATON ON JOHN AUSTIN’S IMPERATIVE SCHOOL

Paton discussed Austin‟s views under three heads: (a) the basis of jurisprudence, (b) the method of jurisprudence, (c) the relation of laws and ethics. THE BASIS OF JURISPRUDENCE Austin‟s broad approach to law was to regard it as a command of the sovereign. Positive laws is a general rule of conduct laid down by a political superior to a political inferior. The notion of command requires that there must be a determinate person to issue the command, and that there is an implied threat of a sanction if the command is not obeyed. Austin‟s aim was to separate positive law sharply from such social rules as those custom and morality. The emphasis on command achieved this end, for the rules of etiquette are not laid down by a definite person. But, if the law of each country is based on commands of the sovereign person (or body of persons) in that country, on what is jurisprudence to be based? As each sovereign may command what he wishes, will not there be the utmost diversity between the l egal systems? Is there any element of identity on which general science can be based? Austin did not deal clearly on this problem. He assumed, without any real investigation, that certain principles, notions, and distinctions were common to all systems of law. Some notions were universal because it was impossible coherently to construct a legal system without using them, e.g. the terms duty, right, injury, punishment, and redress. Analysis reveals Austin‟s foundation to be rather unstable: Firstly, it is clear that there are no uni versal rules of law. Secondly, there are few concepts which are common to all legal systems, and if we confine our analysis to such as we think are universal, we run to dangers: 1. If further research shows that there are no concepts which are common to all systems, then there is no basis for general jurisprudence at all; 2. Even if a few notions are proved to be universal, they form somewhat narrow basis for a science of law.

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The solution of the problem is that, although there are few rules of law that are universal, yet there may be universal principles of jurisprudence. The assumption of jurisprudence is that in all communities which reach a certain stage of development there springs up a social machinery which we call law. Jurisprudence is not primarily interested in cataloguing uniformities, nor in discovering rules which all nations accept. Its task is to study the nature of law, the nature of legal institutions, the development of both law and legal institutions and their relationship to society. Jurisprudence is founded on the attempt, not to find universal principles of law, but to construct a science which will explain the relationship between law, its concepts, and the life of society. Austin did not analyse this problem acutely.

THE METHOD OF JURISPRUDENCE Austin believed that the chief tool of jurisprudence was analysis. Today, however, it is increasingly recognized that, useful as analysis may be, it will not suffice to answer all the problems of jurisprudence. Some of the imperative school seem to proceed on the tacit assumption that all legal problems can be answered by analysis of the rules that exist and by deductions from them. Exaggerated positivism ignores the fact that law develops not by logic alone, but by drawing new values from the life of the community and by gradually reshaping the rules so that they accord with the standards of today. We cannot always convict a dissenting minority in the House of Lords of an error in logic – what is frequently decisive is the judge‟s view of the purpose that law should achieve. What is here st6ressed is only that the analytic system based on Austin‟s teaching did not make sufficient allowance for the creative element in law and tended to magnify the static character of legal rules.

LAW AND ETHICS Austin distinguished jurisprudence, the science of the law from the science of legislation which he based on the principle of utility. But we can see today that even the most positive member of the analytical school did not succeed in separating the law that is from ideal elements. Analysts treated law as a coherent system based on certain fundamental principles from which particular rules may be deduced. Naturally, no system of law is perfectly self-consistent, but any rule that could not be fitted into the analyst‟s framework was dubbed an historical accident or logical anomaly which (it was predicted) would soon disappear. But the analysts assumed that logical self consistency was the sole end of the law. Clearly, law does not exist for the sake of consistency, for many a rule that is theoritically anomalous is based on sound views of public policy. Thus, criticism of the analytical school emphasizes two very significant truths for  jurisprudence:

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1. The law that is does not exist as a perfectly proportioned body of rules deduced from a few leading principles. The social pressures of the past have led to many convenient anomalies being adopted. Hence any attempt to reconcile the rules on logical ground easily develops into a study not of the law that is but of the law that should be, if logic were to prevail. 2. It is extraordinarily difficult for any school to resist setting up an ideal which can be made the basis for constructive criticism of the law. The influence of their work was such, however, that their insistence that lawyers should be concerned with law that is, combined with the dogma that judges do not make law, led to a wasteful argument about whether or nor judges do make law when ion fact judges do make law. The analytical positivists still affirm the Austinian belief that: Law can and ought to be made the subject of study separately from morals; Can be seen as a system of rules with a logic of its own capable of more satisfactory elucidation; The methods of linguistic analysis pursued by the philosophers can be employed in  jurisprudence to clear up many puzzles which have troubled legal theorists, and to produce clearer thinking for lawyers generally.  

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KELSEN’s PURE THEORY OF LAW

LAW AND NATURE LAW AS A PART OF MORALS What is the relationship of law and morals? This question has two meanings: One, what is the relationship between the two? The other, what ought i t be? The first question is sometimes answered by saying that law by its very nature is moral, which means that the behavior commanded or prohibited by legal norms is also commanded or prohibited by the moral norms. Furthermore, that if a social order commands a behavior prohibited by morals or prohibits a behavior commanded by morals, this order is not law, because it is not just. The question is also answered, however, by stating that the law may, but need not be moral, although the postulate is admitted that the law ought to be moral, which means:  just. If the question of the relationship between the law and morals is understood as a question concerning the content of law and not as a question concerning its form; if it is said that law according to its nature has a moral content or constitutes a moral value; then one asserts by these statements that law is valid within the sphere of morals, that the legal order is part of the moral order, that law i s moral and therefore by its nature just.

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RELATIVITY OF MORAL VALUE But if an absolute value in general and an absolute moral value in particular is rejected from the point of view of scientific cognition, because an absolute value can be assumed only on the basis of religious faith in the absolute and transcendent authority of a deity; if one grants that under different circumstances different behavior may be considered good or evil ,  just or unjust, and nothing has to be considered good or evil, just or unjust, under all possible circumstances; if in short, one acknowledges that moral values are only relative: then, the assertion that social norms must have a moral content, must be just in order to qualify as a law, can only mean that these norms must contain something common to all possible moral systems, as systems of justice. In view of extraordinary heterogeneity, however, no element common to the contents of the various moral orders is detectable. All moral orders have only one thing in common: that they are social norms, that is norms, norms that order a certain behavior of men – directly or indirectly – toward other men. All possible moral systems have in common their form, the “ought”: they prescribe something, they have normative character. Morally good is that which conforms with the social norm that prescribes a certain human behavior; morally evil that which is opposed to such a norm. The relative moral value is established by a social norm that men ought to behave in a certain way. Under these presuppositions the statement “law is moral by nature” does not mean that law has a certain content, but that it is norm – namely a social norm that men ought to behave in a certain way. Then, in this relative sense, every law is moral: every law constitutes a – relative –  moral value. And this means: The question about the relationship between law and morals is not a question about the content of the law, but one about its form. The law constitutes a value precisely by the fact that it is a norm; it constitutes the legal value, which is a (relative) moral value; which merely means that the law i s a norm. SEPARATION OF LEGAL AND MORAL ORDERS If it is assumed that law is moral by nature, then, presupposing an absolute moral value, it is meaningless to demand that the law ought to be moral. Such a postulate is meaningful only if the legal norms does not depend on their conformity with the moral order. It is paramount and cannot be emphasized enough to understand that not only one moral order exists, but many different and even conflicting ones; and that above all, the judgment of what is morally good or evil, morally justifiable or unjustifiable, is subject to continuous change, as is the law, and that a legal order that at the time of its validity may have conformed with the postulates of the moral order then prevalent, may still be judged to be immoral today.

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The thesis rejected by Pure Theory of Law: · That law by its nature must be moral and that immoral social order is not a legal order, presupposes an absolute moral order, that is, one valid at all times and places. Otherwise it would not be possible to evaluate a positive social order by a fixed standard of right and wrong, independent of time and place. · In its actual application by the science of law prevailing in a certain legal community, this thesis amounts to an uncritical justification of the national coercive order that constitutes this community. The dubious standard of an absolute morality is applied only to the coercive order of other nations. From the point of view of science of law it must be rejected because it is not the task of this science to justify the law by absolute or relative morals; but to know and describe it.

COMMENTS BY PATON ON THE PURE SCIENCE OF LAW Kelsen wishes to free the law from the metaphysical mist with which it has been covered at all times by the speculations on justice or by the doctrine of ius naturae. He desires to create a pure science of law, stripped of all irrelevant material, and to separate  jurisprudence from the social sciences as rigorously as did as the analysts. So the jurists, if he is to be scientific, must study the legal rules abstracted from all social conditions. Kelsen refuses to define law as a command, for that introduces subjective and political considerations and he wishes his science to be truly objective. Kelsen wishes to separate the realm of jurisprudence from the natural sciences. The latter deals with cause and effect. Law on the other hand does not attempt to describe but rather to prescribe certain rules, to lay down standards of action which men ought to follow. For Kelsen, we cannot adopt the easy method of defini ng law: · The modern tendency to regulate so many of the affairs of the private citizen means that the sphere of law is daily increasing. · Justice is not a satisfactory concept for a science of pure law, as „justice is irrational ideal‟ – that is, it cannot be clearly defined by reason. Justice for many rules may be unjust, but they do not therefore cease to be law. The law does not state what actually does happen, but lays down what ought to happen; yet if the legal order is to be effective, it must secure a certain measure of acceptance. The sphere of jurisprudence, then, is a study of the nature of this hierarchy of norms, validity of each norm depending on its being laid down in accordance with a superior norm until we reach the final norm which i mposes an obligation on a particular individual. It is difficult to appreciate the significance of Kelsen‟s work until the application of theory is understood, but for the present we are concerned only with the bearing of his theory on the problem of the boundaries of jurisprudence. His claim that he has created an impartial and universal science is justified, but we are not left with the dry bones of the law deprived of

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the flesh and blood which give them life. Kelsen is not alone in his disgust at „politics masquerading as jurisprudence‟. Kelsen is correct in showing that law is a weapon that may be used to effect many end. Kelsen‟s work is also valuable in its emphasis that in executing the norms of law the judge has much discretion – it is impossible for any general rule to provide for all contingencies, and the general rules must be made precise by those who have the duty of applying them. But, in order to maintain the air of impartiality, Kelsen regards as outside the scope of  jurisprudence all discussion of natural law, and all the examination of the sources whence the judge draws his rules when there is no authority in point. This leaves the science of law very „pure‟, but deprives it of all interesting contact with life itself. To exclude the whole of sociology and of ethics leaves jurisprudence but a mental exercise in abstract notions. Kelsen‟s methods does not even even give us a true picture of law, for jurisprudence must go beyond the formal hierarchy of norms to study the social forces that create law. The doctrine of natural law has certainly been abused, but is jurisprudence therefore to ignore the whole question of ethics? The pure science of law is narrow one, and it must be complemented by other and broader approaches.

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CHAPTER VI THE FUNCTIONAL SCHOOL THE SCOPE AND PURPOSE OF SOCIOLOGICAL JURISPRUDENCE by Roscoe Pound SCHOOLS OF JURISTS AND METHODS OF JURISPRUDENCE It has been possible to divide the jurists into three principal groups: 1. Philosophical School a. 18th Century Law-of-Nature School; b. Metaphysical School – during the first half of 19th century; and, c. Social-Philosophical School –  the Neo-Hegelians seems to have the most fruitful program 2. Historical School a. German Historical School; and b. English Historical School 3. Analytical School Instead of a further variation of one of the old creeds, a wholly new creed is framing, may be styled the: Sociological School.

1. ANALYTICAL JURISPRUDENCE The analytical jurists pursues a comparative study of the purposes, methods and ideas common to developed systems of law by analysis of such systems and of their doctrines and institutions in their matured forms. 

 “Putting differences” and “taking of diversities” 

Hence, it is appropriate to a developed system onl y. In its crudest form, this is expressed in Austin‟s dogma that a law is a comma nd. The kernel of it is that law “is a product of conscious and increasingly determinate human will.”  The Analytical School characteristics may be said to be: 1. 2. 3. 4. 5.

They consider developed system only; They regard the law as made consciously by lawgivers, legislative or judicial; They see chiefly the force and constraint behind legal orders; For them the typical law is a statute; Their philosophical views are usually utilitarian or teleological.

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2. HISTORICAL JURISPRUDENCE In opposition to the analytical jurist, the historical jurist and philosophical jurist agree that law is found, not made. They deny that law is a product of a conscious or determinate human will. They hold that the living organs of law are doctrinal writing and judicial decision, whereby the life of a people, expressed in the first instance in its traditional rules of law, makes itself felt in a gradual development by molding those rules to the conditions of t he present. Hence, the historical jurists may be characterized thus: 1. They consider the past rather than the present of the law; 2. They regard the law as something that is not and in the long run cannot be made consciously; 3. They see chiefly the social pressure behind legal rules; 4. Their type of law is custom; 5. As a rule, their philosophical view have been Hegelian.

3. PHILOSOPHICAL JURISPRUDENCE The philosophical jurist studies the philosophical and ethical bases of law, legal systems, and particular doctrines and institutions, and criticizes them with respect to such bases. In comparison with the analytical and historical jurists, the philosophical jurists--1. Are more apt to consider the ideal future of law than its past or present; 2. Believe that when law is found, its principles may, and as a matter of expediency, should be stated definitely and in certain form; 3. Look at the ethical and moral bases of rules rather than at its sanction; 4. Have no necessary preference for any particular form of law; 5. Hold very diverse philosophical views.

4. RISE OF A SOCIOLOGICAL SCHOOL

– THE

SOCIAL PHILOSOPHICAL SCHOOL

The first movement in the new direction was from the then dominant historical school in Germany. a. THE POSITIVES

– THE

MECHANICAL STAGE

Like the historical jurist, the first type of sociologist looked at law in its evolution, in its successive changes, and sought to relate these changes to the changes undergone by the society itself.

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A later form of what is essentially the same type of juristic sociology is to be seen in attempt to state all jural experience solely in terms of economics. The doctrine has been set forth in its most extreme form in America:  “Law is the resultant of forces which arises from the struggle for existence among men.”   “The dominant class will shape the law to favor themselves…”  The earlier type of sociological jurist‟ service was in twofold: 1. Displacing the individualist starting-point by insisting upon the importance of the group, of the class, of the “compact plurality”; 2. Compelling us to relate the law more critically to other social phenomena.

b. THE BIOLOGICAL STAGE Darwin had made evolution the central idea in scientific thought. The jurists were attractted by the conception of natural selection: the end of law is to give free play in an orderly and regulated manner to the elimination of the unfit, to further selection by a wel l-ordered social struggle for existence.

c. THE PSYCHOLOGICAL STAGE Three influences combined to turn the attention of sociological jurists towards psychology: 1. Study of group personality and group will, leading to a psychological movement in legal and political philosophy; 2. The complete change in method in the social sciences which resulted from Ward‟s thesis that “psychic forces are as real as physical forces…”; and, 3. Tarde‟s demonstration of the extent to which imitation is a factor in development of legal institutions.

d. THE STAGE OF UNIFICATION At the very end of the last century sociologists were coming to see that no one of the methods worked out was the whole of sociology. A few years later, Ward enumerated twelve “leading sociological conceptions or unitary principles” each of which had been “put forward with large claims to being in and of itself the science of sociology.” 

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THE PRESENT STATUS OF SOCIOLOGICAL JURISPRUDENCE Sociological jurists today insists upon six points: 1. Study of the actual social effects of legal institutions and legal doctrines; 2. Sociological study in connection with legal study in preparation for legislation…. But it is not enough to compare the laws themselves. It is much more important to study their social operation and the effects which they produce, if any, when put in action; 3. Study of the means of making legal rules effective; 4. A means toward the end last considered is a sociological legal history; 5. The importance of reasonable and just solutions of individual causes, too often sacrificed in the immediate past to the attempt to bring about an impossible degree of certainty; 6. Make effort more effective in achieving the purpose of l aw.

Comparing sociological jurists with insists of the other schools we may say: 1. They look more to the working of the law than to its abstract content; 2. They regard law as a social institution which may be improved by intelligent human effort; 3. They lay stress upon the social purposes which law subserves rather than upon sanction; 4. They urge that legal precepts are to be regarded as guides to result which are socially just and less as inflexible molds; and 5. Their philosophical views are very diverse.

COMMENTS BY PATON ON THE FUNCTIONAL SCHOOL 

The fundamental tenet of this school is that when we cannot understand what a thing is unless we study what it does.

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What attitude should jurisprudence take to the question of the values that direct the development of law? Kelsen would retain the scientific method. But Pound considers that they must be analyzed thoroughly in order to understand legal development. For Pound, law is also a process of balancing conflicting interests and securing the satisfaction of the maximum of wants with the minimum of friction.

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CHAPTER VII THE REALIST SCHOOL THE PATH OF THE LAW by Oliver Wendel Holmes When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The means of the study are body of reports, of treatise, and of statutes. A legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequence which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct. Nowhere is the confusion between legal and moral ideas more manifest that in the law of contract. The duty to keep contract at common law means a prediction that you must pay damages if you do not keep it. If you omit a tort, you are liable to pay a compensatory sum.

COMMENTS ON THE REALIST SCHOOL BY PATON The realists defined law not as a set of logical propositions but in terms of official action. Until a court has passed on certain facts, some realists argued, there is no law in the subject yet in existence, for the opinion of lawyers is only a guess as to what the courts will decide. Since law is define in terms of official action (and not of the rules which should guide action), it follows that any force that will influence the judge in reaching the decision is a fit subject for jurisprudence. Law can have a little weight in legal evolution. Society is always changing, moral judgments are developing, and the law therefore is in a state of flux. Realists insisted that to know what a thing is one must see what it does; that rules of law must be assessed by reference to their consequences. Perhaps the most immediate and most important influence of American legal realism was upon legal education. The concentration about the problems to be solved rather than upon the formal and authoritative explanations of how they had been, or ought to be, solved, changed the whole nature of legal education.

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Those changes brought decline among law students in their understanding and appreciation of the internal discipline and coherence of systems of law vi ewed as rules and principles.

COMMENTS BY JEROME FRANK, WHAT COURTS DO IN FACT How then a judge arrive at his decision? He does so by a “hunch” as to what is fair and just or wise or expedient. According to Frank: 1. Specific enforceable decisions in concrete cases are of the essence of the lawyer‟s work; 2. Specific decisions are the result of the judges‟ hunches; 3. To predict or bring about decisions, one should know about what produces judicial hunches; 4. The so-called legal rules and principles are some of many hunch producers; 5. Whatever may be the stimuli to the making of those hunches, may loosely describe the judge‟s personality; 6. Neither the background stimuli nor the congeries labelled “judge‟s personality” are stated or statable in terms of the conventional legal rules and principles; 7. The failure to recognize the composite nature of this hunch and the artificial breaking up of the decisional process into “rules” and “facts” accounts in part for the delusion of the formalist as the exclusive value of th e “rules.”  8. The formalist errs also in overlooking that circumstance that it is impossible to predict what cases will be “contested” and the subjective nature of the “facts” of a  “contested” case and the resulting unchangeability of the judge‟s statement o f those  “facts.”  9. The formalist conveniently neglects the jury.

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CHAPTER VIII THE COMMUNIST THEORY KARL MARX Marx‟s ideas, particularly the prospect of inevitable liberation of the working classes from bondage and oppression through revolutionary action made a strong impression on Russian radicals. LENIN ON MARX Marx‟s teaching is complete and harmonious, providing men with a consistent view of the universe, which we cannot be reconciled with any superstition, any defence of bourgeois oppression. The three components of Marxism are: 1. The philosophy of Marxism is materialism. Provided the humanity, and especially the working class, with a powerful instrument of knowledge. 2. Marx devoted all the greater attention to the study of economic order, having recognized that it is the foundation upon which the political superstructure is erected, i.e. capitalist society. The doctrine of surplus value is the cornerstone of the economic theory of Marx. 3. After the overthrow of serfdom, freedom signified a new system of oppression and exploitation of toilers. Marx answered this with the doctrine of the class struggle, to enlighten and organize for the struggle, from the power capable of sweeping away the old and establishing the new.

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CHAPTER IX THE POLICY SCIENCE SCHOOL LEGAL EDUCATION AND PUBLIC POLICY: PROFESSIONAL TRAINING IN THE PUBLIC INTEREST By Harold D. Lasswell and Myres S. Mcdougal The reform of legal education must become more ever more urgent in a revolutionary world of cumulative crises and increasing violence. Adequate training must therefore include experiences that aide the developing lawyer to acquire certain skills of thought: 1. Goal thinking – to promote the major value of democratic society and to reduce the number of moral mavericks who do not share democratic preferences; 2. Trend-thinking – this considers the shape of things to come orient himself correctly in contemporary trends and future probabilities. 3. Scientific-thinking – to build up scientific knowledge.

COMMENTS BY CRISOLITO PASCUAL ON THE POLICY SCIENCE OF SCHOOL OF JURISPRUDENCE AND ITS THEORY OF THE NATURE OF L AW The goal of the law is the creation of a world community conceived in mutual respect, understanding and rectitude, where the different representative social values or desirable objects of human desires are widely and equitably shared. The law becomes meaningful only when considered as the vehicle or machinery to realize the end in view.