Philosophy of Law Reviewer

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Philosophy of Law Reviewer...

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PHILOSOPHY OF LAW REVIEWER – PRELIM Definition: Philosophy – is the study of the universe that seeks to know the truth and rational explanation of anything. Philosophy of Law  – branch of practical philosophy which deals with the wisdom of law. It studies the nature of law and a ll the principles that govern its formulation. Law  – rule of conduct  formulated and made obligatory by legitimate power of the state. When do we resort to force? Resort to force if the law has failed to persuade people.

School Proponent

Doctrine

History



Classical Natural Law Aristotle "Law should be reason without appettite" "Law gives force to legal contracts" "The highest good is happiness and it should be exercised in accordance to virtue" Aristotle differentiated constitution from laws Theory of Legislation: law should be made by people who has theoretical knowledge and practical experience, eg. politicians Democracy – final appeal is reason. Thus, law is the common agreement of the state.

Legal philosophy started with Socrates, Plato and Aristotle (SPA).

PHILOSOPHICAL SCHOOLS School Proponent

Doctrine

Criticism

*Juristic Pessimism - law must come from ones instinct. *Law is not merely a manifestation of the past but a preparation of the future

Doctrine

Criticism

School Proponent

Historical School Friedrich Carl von Savigny "Law is related with the being ang character  of  of the  people." (people centered) "Law is parallel to language and custom because there is no moment of absolute rest" "Moving force is the law of inward necessity"

School Proponent

Criticism

Doctrine

State - dominates human activity in all of its manifestation; limitless; man on large scale; most perfect unit *Plato took the wildest possible view of law.

"Law is right reason  applied to comman and prohibition" 3 kinds of laws in the world: 1. Lex Caelestis - it is true law; heavenly law and is the right reason. 2. Lex Naturae - law that distinguishes the just and unjust. Punishes the wicked and protects the good. 3. Lex Vulgus - positive law; crowd's definition of law.

Criticism School Proponent

Platonic School Plato "Law seeks to be the discovery of reality ." ." "Law is public opinion" "The end of law is to make completely good men" A platonic philosopher is one who knows true reality and the right thing to do. First to exhibit the general science of law.

De Legibus Cicero

Doctrine

Metaphysic of Morals Immanuel Kant "Morals is validated if it can be established and comprehended by society as necessary" "Positive law is codified while moral laws are not codified but based on experience" External Law - obligatory and is capable of legislation (objective) Maxims - subjective interpretation of an act (subjective) Categorical Imperative - where the maxim is validated in accordance to a Universal Law. Science of Right - its end is principle of all the laws which is possible to promulgate by external legislation

Criticism

School Proponent

Doctrine

Criticism

Universal Principle of Right - every right action should coexist with other right action according to a Universal Law. *The metaphysics of morals was better illustrated by Rudolph Stammler - notion of community is inherent in law. Law is distinct from natural world and that law is a complete and exclusive system.

"Laws proper are commands, laws improper are not commands" "Law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him"

4 divisions of law: 1. Divine Law 2. Positive Law 3. Positive Moral Law 4. Law Metaphorical or Figurative

Philosophy of Right Georg Hegel "The dialectical method - conflict between what is ought and what is is resolved by the use of thought" Thesis - existent Antithesis - conflict Synthesis - resolution

Styled Laws - laws set by opinion Science of Ethics - based on the Divine Law

*Too optimistic

Doctrine

School Proponent

Positive Law - laws existing by position Difference of Command and Desire: Pain or evil inflicted during disregard of wish

Positivist School - Imperative School / Analytical School John Austin

When there is increase in sanction, there is increase in obedience

Effectivity of Laws: Sanction - obligation or duty Reward - right Concept of Superiority: May come from either excellence or might Science of Legislation - positive law is Science of Jurisprudence - positve law ought to be

Criticism

*Law that does not exist as a perfectly proportioned body of rules. *It is difficult for schools to resist setting up an ideal to be a basis of constructive criticism of law. *Austin made that law ought to be studied separate from morals.

School Proponent

Positivist School - Pure Theory of Law Hans Kelsen "Relativity of Moral Value" Social Norm - norm that orders certain behavior of men toward other men; these are dynamic

Moral Minimum - agreement on an absolute morality such as peace. Doctrine

Why is there a necessity to separate Morality and Law? In order to establish an absolutely moral order and only one absolute justice. In order to have a basis on the validity of a positive legal order.  Justification of Law through Morals Is possible only if a contrast exists between the moral and legal norm.

Criticism

School Proponent

Doctrine

Criticism

*Kelsen based his work on Austin but did not consider law as a command of the sovereign. *Kelsen's method constrains us and does not give us true picture of the law

Positvist School - Utilitarianism Jeremy Bentham "Utility is a property in any object that produces good or  pleasure" "Greatest good or happiness for the greatest number" "Nature has placed mankind under the governance of two sovereign masters: PLEASURE AND PAIN"

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