-
Domino, Gutierrez, Leao 1
Legal Theory Reviewer B2014 Professor Sison
Head: Jen Domino
Members: RJ Gutierrez, Ofelia Leao
Table of Contents
I. Introduction a.
Abstract__________________________________________________________________________________________________________________3
b. The New Encyclopaedia Britanica, Western Philosophy of
Law_______________________________________________________________________3
c. Fernando, The Relevance of Philosophy to
Law___________________________________________________________________________________4
d. Adler, The Four Dimensions of
Philosophy_______________________________________________________________________________________4
e. Soper, Making Sense of
Jurisprudence___________________________________________________________________________________________4
f. Hart, Persistent
Questions____________________________________________________________________________________________________5
g. Lloyd, Preface and Conceptual Thinking in
Law____________________________________________________________________________________5
II. The Nature of Law a.
Abstract___________________________________________________________________________________________________________________6
b. Fernandez, Philosophy and
Law________________________________________________________________________________________________6
c. Wolheim, The Nature of
Law__________________________________________________________________________________________________7
d. Lloyd, Is Law
Necessary?_____________________________________________________________________________________________________7
e. Lloyd, Law and
Force________________________________________________________________________________________________________7
f. Lloyd, Law and
Freedom______________________________________________________________________________________________________8
g. Lloyd, Law and
Custom_______________________________________________________________________________________________________9
III. Natural Law a.
Abstract___________________________________________________________________________________________________________________9
b. Classical Natural
Law________________________________________________________________________________________________________9
c. Modern Natural
Law________________________________________________________________________________________________________12
d. Law and
Morals___________________________________________________________________________________________________________13
e. Law and
Justice____________________________________________________________________________________________________________14
IV. Legal Positivism a.
Abstract_________________________________________________________________________________________________________________16
b. Lloyd, Legal
Positivism______________________________________________________________________________________________________17
c. Austins
Concept___________________________________________________________________________________________________________17
d. Murphy and Coleman, The Nature of
Law_______________________________________________________________________________________17
e. Harts
Concept____________________________________________________________________________________________________________18
f. Hart, Law as the Union of Primary and Secondary
Rules____________________________________________________________________________18
g. Hart, The Foundations of a Legal
System________________________________________________________________________________________20
V. Critique of Legal Positivism and Natural Law a. Dworkin, Is
law a System of
Rules?____________________________________________________________________________________________20
-
Domino, Gutierrez, Leao 2
VI. Sociological Jurisprudence a.
Abstract_________________________________________________________________________________________________________________20
b. Lloyd, Law and
Society______________________________________________________________________________________________________21
c. Legal
Realism_____________________________________________________________________________________________________________21
d. Llewelyn, The Bramble
Bush_________________________________________________________________________________________________22
e. Law from the Policy
perspective______________________________________________________________________________________________22
f. Reisman, A Theory of Law from the Policy
Perspective_____________________________________________________________________________22
-
Domino, Gutierrez, Leao 3
I. Introduction a. Subject Matter
i. Abstract The question that legal theory seeks to answer is,
how do we know
that what we are studying is law? It is, however, impossible to
raise such an inquiry without certain assumptions. The subject
matter, as a starting point, assumes that: (1) Law is part of
reality; and (2) we, human beings, have the capacity to know what
this reality is. Hence, the goal of this subject matter is to show:
(1) the process of how human beings know of reality (Theory of
Cognition); and (2) what is this reality called law as different
from non-law (Definition of law, i.e., law devoid of its
non-essential characteristics).
These goals, the Theory of Cognition and Definition of Law,
shall be the subject of succeeding sections of this reviewer. But
before that, let us first proceed with some preliminaries on the
subject. The purpose of this introduction is to provide a backdrop
of what one will eventually learn on detail on the next succeeding
subdivisions of this reviewer.
This introduction has two parts: (1) Legal theory in general;
and (2) important points and notes on some of the articles
discussed in class. For the first part, one will be introduced to
the subject matter from a macro perspective. Its definition, its
different names, its purpose, and the main schools of thought (a
subject that will be discussed in greater detail in later
sections). For the second part, one will be given some pointers on
what they ought to remember from each of the important articles
discussed in class. The technique employed to supply this is based
not on the article presents itself, but on how the professor has
made sense out of it. Hence, the second part is merely a
reiteration of what the professor said in class, but in a more
systematic and formal manner.
ii. In General Law in the Abstract concerned with the essential
characteristics of Law. Different names of the Subject Matter: 1.
Jurisprudence 2. Legal Philosophy or Philosophy of Law 3. Law in
the Abstract 4. Legal Theory Legal Theory (Law 117) The main
schools of jurisprudential thought, with emphasis on the
philosophical influences on the varying conceptions of ideal
law and material law, and their impact on law as an instrument
of procedural and substantive justice (UP College of Law Student
Manual). Legal Theory is for the refinement of our mind (Sison
2011). The Main Schools of Jurisprudential Thought 1. Natural Law
(Revealed by the Divine; discoverable by Reason) a. Classical
Natural Law (Stoics St. Thomas Aquinas)
b. Modern Natural Law (Natural Rights Theorists: Hobbes and
beyond) 2. Legal Positivism (Positum - laid down by human beings)
a. Imperative Theory of Law (John Austin) b. Rule Theory of Law (H.
L. A. Hart) c. Pure Theory of Law (Hans Kelsen) d. Sociological
Jurisprudence
i. Legal Realism (John Chip Gray, Roscoe Pound, Karl Llewelyn,
Oliver Wendell Holmes, etc.) ii. Law from the Policy Perspective
(W. M. Reisman, Harold Lasswell, A. Scrieber)
e. Principle Theory of Law (Ronald Dworkin)
iii. Important Points and Notes on the Articles 1. The New
Encyclopedia Britannica
Philosophy of law is concerned with the formulation of concepts
and theories to aid in understanding the nature of law, the sources
of its authority, and its role in society.
Three Major Subdivisions of Philosophy of Law 1. Analytical
Jurisprudence concerned with articulating axioms, defining terms,
and prescribing methods that best enable one to view the legal
order as a self-consistent system and that maximize awareness of
its logical structure. 2. Sociological Jurisprudence concerned with
the actual effects of the law upon the complex attitudes, behavior,
organization, environment, skills, and powers involved in the
maintenance of a particular society. 3. Theory of Justice concerned
with the evaluation and criticism of law in terms of the ideals or
goals postulated for it.
Note:
The professor discussed that these three schools of law
correspond to the major schools of jurisprudential thought, where,
Theory of Justice refers to
-
Domino, Gutierrez, Leao 4
Natural Law, Analytical Jurisprudence refers to Legal
Positivism, and Sociological Jurisprudence refers to Legal
Realism.
2. Fernandos The Relevance of Philosophy to Law
The law is not a self-contained system.
Philosophy is a meta-discipline of looking at law from above. It
serves to clarify matters that law cannot answer for itself.
Professor Fernando viewed philosophy as a method of conceptual
analysis and rational justification. As a method of conceptual
analysis, it engages in the logical clarification of concepts. It
abstracts the essential characteristics of law and differentiates
law from non-law. This method not only serves the negative and
therapeutic of philosophy which is avoiding linguistic confusion,
but also philosophys positive and constructive purpose of making
clearer sense of the world and reality.
As a method of rational justification (similar to the method of
logic), philosophy is seen as a skill or an activity engaged in
reasoning; but rational justification is used mainly on normative
issues such as law. It is a method whereby one provides reasons for
ones conclusion.
Note: The professor focused on the idea that law is not a
self-contained system and that it requires the aid of philosophy in
order to be understood. This relationship between law and
philosophy will also be discussed later in the article of Professor
Perfecto Fernandez on Philosophy and Law. The professor also
emphasized on the process of abstraction. He said that abstraction
requires both the aid of logic (genus et differentia definition)
and psychology (Theory of Cognition). Abstraction is of a second
order knowledge, where the goal is to conceptualize reality by
defining it. In our case, to abstract law is to conceptualize it
and to remove all its non-essential characteristics.
3. Adlers The Four Dimensions of Philosophy
4 Dimensions of Philosophy: 1. First order knowledge
a. Metaphysical questions about being; existence of God; and the
possible; human mind; human nature; etc. b. Moral questions about
moral obligation in relation to justice, liberty, equality,
democracy, socialism.
2. Second order knowledge a. Understanding of ideas as objects
of thought
b. Understanding of subjects different branches of knowledge,
the arts, and other learned professions.
Tests of Truth: 1. Pragmatic experience as basis; successful
outcome as the test. 2. Generalization theory of falsification
(e.g., to know the truth/falsity of the statement, if all crows are
black, one must only look for a different colored crow) 3. Logical
Premises -> Conclusion 4. Coherence test: consistency with the
system or the coherence with the whole. Note: The professor did not
really delve into this article. It is, however, advantageous for
the reviewee to know the difference between first order and second
order knowledge in order to make sense of the Note on Abstraction
in The Relevance of Philosophy section. As regards the Tests of
Truth, the professor only mentions three: (1) Correspondence (if
the statement corresponds to reality); (2) coherence (if the
statement is consistent with the system); and (3) pragmatic (that
which works).
4. Sopers Making Sense of Jurisprudence Two dimensions of Legal
Theory: 1. As to audience
a. Outsider is concerned with distinguishing law from other
systems of social control and seeks to characterize and distinguish
among legal systems. This refers to knowledge of the world by
describing and understanding phenomena. b. Insider is actively
engaged in the practice of law who wants to identify, apply, or get
advice about legal norms. He has practical concerns and wishes to
know the consequences of his conduct.
2. As to the goal of the study (motivation for undertaking legal
theory) a. Outsider to know the difference between legal systems
and other systems of control.
-
Domino, Gutierrez, Leao 5
b. Insider to know the consequences of his conduct; what one
ought to do.
Note: The professor summarized this article by saying that: (1)
Outsiders study law, i.e., undertake legal theory, for knowledges
sake; (2) Insiders study law for obediences sake.
5. Harts Persistent Questions
Diseases of language: ambiguity and vagueness. This is more
manifest when the words used are couched in general terms.
Borderline cases are cases where no legal provision can be
applied; or where there is an applicable legal provision but it can
have two or more inconsistent interpretations.
There exist persistent questions in jurisprudence because of the
existence of these two the diseases of language and borderline
cases.
Three recurrent issues: (1) How does law differ from and how is
it related to orders backed by threats? (2) How does legal
obligation differ from, and how is it related to, moral obligation?
(3) What are rules and to what extent is law an affair of
rules?
Definitions (in logic, i.e., genus et differentia) no longer
suffice (inadequate), the goal is to explain.
Note: The professor noted that because language is both
open-textured (one cannot know which is in there and which is not)
and open-ended (one cannot ascertain the extent of word), law, as a
product of language, becomes difficult to understand. This is the
reason why Hart said that definitions no longer suffice. The law,
as an object of reality, can no longer be subject to a mere
definition. The goal, according to Hart, is to explain law. And
this has been the mode employed by theorists starting from early
legal positivist, like Austin. As for borderline cases, the
techniques for solving it will be further discussed in the
subsequent sections, particularly on the discussion of Dworkin.
6. Lloyds Conceptual Thinking in Law
Law resembles a kind of a game in that any such game employs a
number of general concepts, or notions which are conventional in
the sense that their meaning and function are arbitrarily defined
by the rules of the game, but which can operate meaningfully within
their particular linguistic framework.
The scope of law entails a vastly more complex system than that
of any game, having regard to its ramifications over the whole
social life of the community.
Also, law develops and changes in a constant process of flux
whether by new legislation or by the gradual adaptation of
customary judicial or administrative rules.
Many fundamental legal concepts are legal creations with
vitality of their own.
Dangers of Rigid Conceptualism: When lawyers have breathed
meaning and purpose into their legal concepts and found these to be
good, these concepts tend to develop a life of their own which may
carry them on into many and unexpected paths by their own vitality
and by what are felt to be the laws of their own inherent logic.
Once these concepts are crystallized within a legal system, the
courts may decide new cases on what they conceive to be the logical
nature and requirements of particular legal concepts. This results
in an undue rigidity and inability to adapt to new social
situations.
Notes:
The professor summarized this article by stating that law can be
considered as a game with rules for the use of words. The concept,
as denoted by words, is a product of definition. Concepts are used
to create propositions. These propositions are then used as
premises to arrive at various conclusions. The whole process from
defining the concept to arriving at a conclusion is called
reasoning.
It is the rules that set the directions of the game. It is a
list of to do or not to do. The rules also provide for consequences
in case of breach. These rules are the ones that make ones action
meaningful (as in a game of chess or basketball).
b. Theory of Cognition (*REFER TO THE DIAGRAM)
-
Domino, Gutierrez, Leao 6
Notes: Abstraction the process by which essential
characteristics are derived from particular objects of reality. Two
ways to define a word (as per Betrand Russell) 1. By pointing,
i.e., ostensive definition. 2. By looking at the dictionary, i.e.,
lexical definition. Two kinds of knowledge 1. Sense-knowledge,
i.e., apprehension (particular objects) 2. Intellectual knowledge,
i.e., abstraction (concepts) Moderate Realist Theory of
Epistemology: A Model Mind -> Will -> Action -> Conduct
-> Habit -> Convention -> Customs
II. Nature of Law a. In General
i. Abstract After the preliminaries, we will now proceed to the
discussion of some
elements of law. The goal in this section is to ascertain
whether or not such elements are essential in the understanding of
what law is.
Before proceeding with this analysis, however, we will first
look into some of the criteria of knowing whether an element of law
is essential or not. As a guide, we will use the standards put
forth in the articles of Professor Perfecto Fernandez on Philosophy
and Law and Professor Richard Wollheim on The Nature of Law.
Afterwards, we will examine whether the law is necessary, and
how the law is related to force, freedom, and customs.
It bears remarking that regarding the necessity of law, the
nature of man is examined together with its impact with the
conception of law. It is argued that whether mans nature is good or
bad, law will still be necessary. Although there are contentions
that the law infringes upon the actions of those subjected to it.
There is also the relationship of law and force, and freedom and
customs.
As regards the relationship between law and force, although it
is argued that it is not necessary to coerce people to obey the
laws, coercion may still be an indispensable part of an effective
system of law.
However, there are still certain fundamental principles or
freedom that cannot be unreasonably infringed. Lastly, similarities
and differences
between laws and customs lead to the conclusion that the
substantial difference between the two is the lack of machinery on
the enforcement of the primitive customs.
1. Perfecto Fernandez Philosophy and Law Philosophy and Law:
First Question: Is coercion an essential element of law? No,
because we recognize the existence of directory laws, which are
laws that may or may not be obeyed. This does not mean, however,
that ALL laws should have no mandatory force; otherwise, problems
relating to order may arise. In fact, the very concept of law
entails resort to physical power. Second Question: What is the
nature of law? To answer this, there must first be an examination
of the two kinds of statements: (1) Empirical, which are statements
of facts (descriptive); and (2) Normative, which are statements
that prescribe what ought to be done or what not to be done by
human beings (prescriptive).
By its very language, law is seen as normative. Being normative
in character, it cannot be validated by science. So, Fernandez
suggests that law can be gauged by using a criterion of validity.
For Fernandez, this criterion is that of the legal system.
The test then is: Does the law pass the test imposed by the
legal system in order for it (the law) to be valid? Hence, the test
is dependent on a particular legal system. If the law satisfies
this criterion of recognition, it becomes a rule of law.
Is moral validity required for legal validity? Fernandez says
no. Morality is different from person to person. This subjectivity
would destroy the certainty and objectivity of the criterion used.
It will pose problems relating to obedience among the populace. If,
for example, the law is contrary to ones belief or morality, which
of the two should the person obey? Fernandez says that a person
should not be justified in disobeying the law because such law is
not in accordance with his beliefs. Third Question: what is the end
of law? The end of law is to provide social conditions of security
and liberty essential to human achievement. Notes: Contributions of
Philosophy to Law:
-
Domino, Gutierrez, Leao 7
1. Nature of Law place of law in the general schema of knowledge
2. Criterion of Law basis for declaring something law 3. The
Philosophical Question, Is an Unjust Law, Law?
Fernandez sees Law as a Legal System or a set of Legal
Propositions which are statements composed of legal concepts.
Humes formulation (and the tests of validity as per Sison): 1.
Normative statements validity based on criteria (legal theory or
moral theory, e.g., Austins imperative theory of law or Benthams
utilitarian theory of morality) 2. Descriptive statements validity
based on the principle of verifiability, i.e., if the statement
corresponds to reality.
2. Wolheims The Nature of Law What is the nature of law? This
question can be answered in three ways: 1. By giving a synonym 2.
By giving a definition 3. By giving a general characterization
DANGER: the essence of the word might be forgotten because we use
our personal association to the word. Whether or not a law should
be considered law depends upon each legal system. If it has through
the criterion of validity that a legal system has imposed, the law
should be considered a law. But judges sometimes insert their moral
judgments in a case. Of course, in arriving at a conclusion, the
judge may base his argument in moral and conscientious
considerations. This is valid UNLESS the decision is patently
contrary to the law. If the judge lays down moral reasons, it is
because the law allows him to (the criterion of validity). The
decision even though grounded on moral considerations becomes
legal.
b. Lloyds Is Law Necessary? Law - ideological in character -
Ideological forms part of our outlook upon the world, upon the
relation
of man to the world and to society and all its
manifestations
Two Views on the Nature of Man
1) Evil no social progress could be attained without the
restraints of penal law; Law is an indispensable restraint upon the
forces of evil
2) Good due to sin, corruption, etc., mans original and true
nature become distorted and this required for its control the
rigors of the punitive system of law; Those who view man as
inherently good seek to find the sources of the ills of mans
present condition in situations external to man himself - criticism
to the government and the legal system through which they exert
their political authority
c. Lloyds Law and Force
Is Force an Essential Characteristic of Law? Authority: Some
person is entitled to require the obedience of others regardless of
whether those persons are prepared to find the particular order or
rule enjoined upon them as acceptable or desirable or not. There is
a very definite connection between the idea of legitimate
authority, which has to be obeyed because of its very legitimacy,
and moral obligation, which imposes a rule which calls for
voluntary adherence by virtue of its intrinsic rightness. The
notion of authority which is acknowledged as legitimate derives
much of its strength from its link with moral obligation. Charisma
(Max Weber): from the Greek word charisma meaning grace. Refer to
that peculiar form of personal ascendancy which an individual may
acquire in a particular society, and which confers an indisputable
aura of legitimacy over all his acts. It is argued that people obey
the law not because they are constrained to do so by force but
because they consent or at least acquiesce in its operation and it
is this consent rather than any threat or force which causes the
legal system to work. The idea of the democratic societies is that
universal suffrage and majority rule is the means by which the
individual from time to time manifest his adhesion to the
government. This mode of thought is seeking to achieve is not to
eliminate force in the legal process, but rather to remove the
emphasis from coercive subordination to voluntary consent or
acquiesce. Traditional Domination vs. Legal Domination
-
Domino, Gutierrez, Leao 8
Traditional While charisma may create authority by the sheer
personal ascendancy of a new leader and thought there may be a
natural tendency for this extinguished on his death it by no means
follows that such charisma will attach to his person alone, it may
pass to his successors Legal Under this system, legitimate
domination has become impersonal and legalistic so that the
institutional character of authority has largely if not wholly
displaced the personal one. Law and Coercion In less developed
societies, coercion tends to take form not of the centralized
forces but rather of each man helping himself with the aid of his
kinsfolk. Even on the level of national law, the law is obliged to
apply legal coercion to whole groups as well as individuals. Freud:
insisted on the necessary connection between civilized society and
coercive social order. This is because of his belief on the
existence of mans aggressive urges that can be repressed but not
eliminated. It has been a characteristic of developed state law
that as the use of force has become more closely regulated and more
efficiently brought to bear upon the recalcitrant it has been
pushed further and further in the background. Though coercion may
be an indispensable part of an effective system of law, there seems
to be no reason why we should insist that this necessarily entails
annexing penal consequences to every individual rule comprised in
the legal system.
d. Lloyds Law and Freedom Types of Society:
1) Open there is a wide field left for personal decision and for
the assuming of individual responsibility
2) Close there is almost tribal or collectivist pattern;
community is
completely dominant.
Types of Freedom: 1) Positive in the nature of spiritual
conception, implying as it does
some kind of maximum opportunity for the self-realization of
every individual to his full capacity as a human being
2) Negative concerned with so organizing the pattern of the
society, that despite all the restraints and limitations that are
placed upon individual action for the benefit of society as a
whole, there nevertheless remains as a large sphere for individual
choice and initiative as is compatible with the public welfare
Law is said to bind those subject to it. But not all freedom is
necessarily good. The word covers a vicious license as well as true
liberty. The purpose of the law is to eliminate the first and
promote the second. The only reason why it is good for a person to
be free from various restrictions and hindrances is that he may be
free for the kind of life he was meant to live, for the attainment
of his end. Law curtails freedom from because it imposes
obligations a man would otherwise be free from, but it enhances
freedom for because it enables a man to live the kind of life he
has been created for. Law frees man from bondage to ignorance and
error without lessening mans responsibility and self-control. In
the sense, it is correct to say that true freedom is the right to
do what we ought, and the law shows where the ought lies.
(Fagothey) Note: Conflicts may arise between the various types of
fundamental rights accepted in the modern democratic state.
Attempts have been made to try and delineate some sort of
natural-law basis upon which a scheme of preferred values might be
erected. Customary International law has hardly provided much
assistance. It imposes very few restraints upon the sovereign power
of a state to deal with its own citizens or resident aliens, and in
any event no judicial or other machinery is provided for such
issues to be investigated or made the subject of judicial rulings.
For this purpose, there are at least two requisites, namely, in the
first place a clearly laid down code of established human rights
accepted by all civilized states, and judicial machinery whereby
issues involving alleged infringement of these rights can be
investigated or made the subject of judicial rulings.
-
Domino, Gutierrez, Leao 9
e. Lloyds Law and Customs
Customary Law - norms operating in less developed societies; -
Operates at all levels of the society - It is impossible to
differentiate between legal, moral and religious norms. Habit is a
course of conduct which we regularly pursue but without any sense
or compulsion to do so. Conventions represent the attenuated
survivals of customs of an earlier period Note: Both customs and
conventions are normative Two important misconceptions:
1) In early society, custom was completely rigid and unchanging,
and that primitive man was born into a helpless condition of total
conformity to the tribal custom. Studies show: Custom was subject
to constant adaptation to new situations
2) Primitive man was caught up like a fly in a web of inherited
custom that so great was the fear of the forces of religion and
magic that violation of custom by an individual offender was
unthinkable Studies show: Custom was self-enforcing and any
occasional violation would be left to the supernatural powers
Note: The purpose of sanctions is to maintain the social order
in the community for the breach is seen as disturbing social
solidarity. The vital contrast between law and primitive custom is
not that the latter lacks the substantive features of law; or it is
unsupported by sanctions but simply that there is an absence of a
centralized government. Due to the absence of machinery for
enforcing decisions, primitive law is dependent on rather
indiscriminate modes of enforcement including self-help remedies
applied by the next-of-kin of the injured person.
III. Natural Law (Right and Reason by Austin Fagothey; Natural
Law Theory of Thomas Aquinas by Susan Dimock; Arguing about Law by
Andrews Altman)
a. Abstract The theory of Natural Law can be divided in two:
Classical Natural Law
and Modern Natural Law. One of the main thinkers of Classical
Natural Law is St. Thomas Aquinas. He stated that the universe is
governed by a single, self-consistent, and overarching system of
law. On the other hand, the modern Natural Law Theory differs from
the Classical on its emphasis, shift, and basis.
There are also conflicting views on the relationship of law and
morality. One of them is the idea that law and morality are one and
the same. Some see morality as a higher form than man-made law and
yet there is another view which states that they can be
separated.
Lastly, the discussion on justice shows the different views on
justice and its relationship with law and morality.
b. Classical Natural Law
Before, it was accepted that the laws of the state were sacred
and beyond all criticism but the ancient philosophers claimed that
the rules of positive law were subject to evaluation on the basis
of the principle of natural law. These principles represented a
higher law by which the goodness or badness of positive (or
man-made) law could be determined. (Altman) Meaning of Law Moral
necessity Law directs free beings by imposing on their free will
the restraint of obligation or duty or oughtness. This way of
regulating human acts is in most keeping w/ mans dignity. Physical
law Law as applied to nonfree beings observable in the uniformity
or regularity of their behavior. This is the physical necessity to
follow a pattern of activity. (Fagothey) GREEK/ARISTOTLE: Law is
understood in the sense of human convention and contrivance such
that if nature and law are put together as natural law, it would
seem contradictory Universal law is the law of the nature. There is
a natural justice and injustice binding to all men. (Fagothey)
-
Domino, Gutierrez, Leao 10
GREEKS vs. HEBREWS: On Obeying the Laws Greeks see obedience as
a principle of morality, moral law as separate from state law and
that moral law does not override the law of the state. In contrast,
Hebrews believe that Gods will dictates a moral pattern and
obedience is secured by divine punishment. They rejected the human
law as embodiment of morality but they equated law with morality
moral/religious law laid down by God/developed by divinely-inspired
human beings. Human law is to be obeyed only when it corresponds
with divine law. (Lloyd, Law and Morals) STOICS/CICERO: First to
make wide use of the term natural law. It is the absolutely
necessary course that nature fatalistically follows, with no
distinction between physical and moral law. Reason urges us to obey
it willingly rather than have it forced upon us. CICERO: Natural
law is unchanging over time and exists in different societies;
every person has access to the standards of natural law by use of
reason; only just laws really deserve the name law and in every
definition of law there inheres the idea and principle of choosing
what is just and true. (Kelsens Pure Theory of Law) ROMANS:
distinguished between jus (the right) and lex (the law)
legislator of natural is God
CHRISTIAN/EARLY CHURCH WRITERS: God acting as lawgiver sets the
law for His creation by His wisdom and enforces it by his will.
Christians regarded nature as Gods creation. St. Augustine
developed the notion of an eternal law as the law created &
given by God.
Questions: Are natural morals included? Can there be an
authoritative interpreter of natural law? If so, how does the law
remain natural? (Fagothey) AQUINAS (according to Altman/Dimock):
The universe is governed by a single, self-consistent, and
overarching system of law. This entire system is under the
direction and authority of the supreme lawgiver and judge, God.
Human law occupies a lower tier. In order to be valid law,
practical directive must be an accordance of reason; it must be
issued by the person/group who holds law-making authority within
the community; it must be directed toward the common good; and it
must be promulgated.
1) practical directive must be in accordance with reason; must
be directed toward the common good;
Law is an ordinance of reason. Aquinas also believes that the
end of all we do, when we act in accordance to reason, is
happiness. Hence, law must aim at happiness (not of a certain
individual but the happiness) of the whole as a perfect community.
The law must serve the common good. The law also serves to unify
the diversity of people. Aquinas believes that men have different
needs biological, intellectual and spiritual and it is the aim of
the law to achieve these needs.
2) must be issued by the person/group who holds law-making
authority within the community;
Aquinas also believes that the making of a law belongs either to
the whole people or to a public personage who has the care of all
the people. Aquinas believes that the relationship between the
ruler and the ruled is natural there are some who are naturally fit
to rule and others who are naturally fit to follow the rulers
commands. These political relations must contain a coercive
component and there came to be added to the rulers authority the
coercive power of making laws and compelling obedience through the
threat of penalties for those who transgress the law.
3) must be promulgated For law to be valid it has to be public.
Reasons:
1) People can use the law as a rule and measure for their
conduct only if they know what the law enjoins or forbids them to
do; and
2) Both the obligation to obey the law and the permissibility of
punishing those who violate presuppose that the laws which people
have an obligation to conform to can be known by them.
Four Kinds of Law:
-
Domino, Gutierrez, Leao 11
Eternal Law- Consists of those principles of action and notion
that God implanted in things in order to enable each thing to
perform its proper function *According to Aquinas, The whole
community of the universe is governed by the divine reason. And
since the divine reasons conception of things is not subject to
time, but is eternaltherefore it is that this kind of law must be
called eternal. * This is called the ultimate norm of morality.
Human act is good because it shares through the eternal law in the
goodness of God. (Fagotheys Discussion on Eternal Law)
Natural Law- Consists of principles of eternal law specific to
human beings. Such principles are knowable by our natural powers of
reason. Obedience to natural law is obligatory and disobedience is
wrong for to achieve common good, natural law must be obeyed. *Man,
having reason & free will, doesnt just simply obey eternal law
but participates fully in the law. The fundamental precept: Do
Good, Avoid Evil Human Law/ Positive Law- consists of rules framed
by the head of the political community for the common good of its
members.
*Human law is needed to clarify natural law. Another reason for
needing natural law is because we sometimes fail to willingly
follow the dictates of natural law.
Two ways: deductive and inductive: a) deductive from natural law
to positive law this has a force of natural law thus we have acts
mala in se or acts w/c in themselves are morally wrong b) inductive
positive law related to natural law thus we have acts mala
prohibita or acts w/c in themselves are not morally wrong but are
otherwise prohibited by law.
Law must be just. A law that is just is morally binding. A thing
is just if it is according to the rule of reason. But the first
rule of reason is the law of nature. If a law does not conform to
the rule of nature, it lacks the force and status of law, it is not
just.
Justice according to Aquinas: Demands that the burdens and
benefits of society be distributed proportionately and in the
service of the common good. Human law doesnt proscribe all virtues.
It prohibits only those w/c are possible to abstain and those that
are hurtful to others.
Divine Law- exists over and above natural law, guiding us to the
ultimate goal: eternal salvation. Reasons for having divine
law:
A) Eternal happiness is beyond mans faculties. B) We need a
standard for all, a law that cant err. C) Laws govern only external
acts we need something that can
permeate even thoughts. D) We need to punish all other vices
left unpunished by natural &
human laws. Because men cant know, by natural reason unassisted
by divine revelation, what God demands of them in order to be
worthy of eternal happiness, divine aw is needed. Law is a rule and
a measure. It is a system of rules by w/c human beings are to
direct their behavior to the common good. To the natural theory of
law can be attributed the retributivist theory of punishment
whereby sinners are punished proportionately. ENLIGHTENMENT:
God as lawgiver drops out. There is natural law without an
eternal law, without a lawgiver, without any really binding
obligation.
Human nature is regarded as eminently knowable by human reason.
They way to find human nature is by stripping from man the
artificial accretions of civilizations so that he may be seen in
his native state or state of nature. (Fagothey)
Evidence of the existence of natural law: (Fagothey)
1) Existence of: values and their objective basis, preeminence
and self-justification of moral value, its irreducibility to any
other value and its absolutely imperative but noncompulsory
necessity, the inner drive of each being toward the attainment of
its end, ability of men using reason to distinguish moral good from
moral evil these things when
-
Domino, Gutierrez, Leao 12
taken together adds up to a law and since it is rooted in mans
nature, natural law.
2) Existence of scientific knowledge is evidence that there are
laws governing the activity of beings
Man must be directed to his proper good by means that are both
effective (powerful enough to produce the effect) and suitable (to
mans rational and free nature).But that only means both effective
and suitable is the natural moral law. Reasons:
1) It must be law it needs to have binding force; not mere wish
or hint 2) It must be a moral law physical laws are only suitable
to nonrational
beings. External compulsion would mean that man must accomplish
his end despite his will, and would do violence to human nature
3) It must be natural law mans nature is the means that will
guide him to his end.
Man comes to know natural law by the use of his reason by
drawing conclusions about his own nature. He can compare his
conduct with his nature and understand the conformity and
nonconformity between them and he will then make rules of conduct
that will be able to preserve the conformity. (Connections between
natural conditions and systems of rules are not mediated by reason
but are rather based in the following truisms: human vulnerability,
approximate equality, limited altruism, limited resources, and
limited understanding and strength of will. - Hart) Natural law
consists of precepts of varying degrees of importance for the
welfare of humanity. Natural law is both absolute and relative. Man
is a rational animal but he grows and develops, too. Natural law
must pertain to mans rationality and is absolute in this sense but
it must also be relative to become adjustable to fit human
progress. Justice remains the same but the mode of acquiring it
changes.
c. Modern Natural Law 1. Emmanuel Fernandos Natural Rights
Legal Theory
The thrust of the Classical Natural Law Legal Theory is that
there is a conceptual connection between positive law and morality,
and that the oral order is part of the natural order. Modern
Natural Law Theory can be distinguished from Classical in 3
aspects: emphasis, shift, & basis.
Classical Modern
Emp
has
is Universecentered focus on the
general order of the universe & the interconnectedness of
those in it
Mancentered focusing on his separatedness as a person, equality,
and brotherhood
Co
nte
xt
Human nature w/in the context of society because man is a
social/political being & he who lives outside of the society is
either a god or a beast
Extended the idea of human nature & applied it to the
context of the state of nature before society or government; man
have rights by nature
Bas
is
Dutybased natural law prescribes duties w/c man has to comply
with & mans rights are based on duties situated in a general
order
Rightbased rights in the state of nature, from w/c duties can be
derived; all men have rights and we have a duty to respect others
rights
MAIN CHARACTERISTICS & DISTINGUISHING FEATURES OF NATURAL
RIGHTS LEGAL THEORY The 5 basic distinguishing features of natural
rights theory are: 1. Existence of selfevident truths 2. Adherence
to natural equality 3. Existence of natural rights 4. Derivation of
power from the consent of the governed 5. Limitations on the powers
of the government Existence of self-evident truths
ural rights truths specify in detail, concreteness, and greater
unanimity. Adherence to natural equality
where man derives equality. Inequality exists when he enters the
society & government, and leaves the state of nature.
-
Domino, Gutierrez, Leao 13
ought to be treated equally in the sense that he has equal
rights which ought tobe individually respected. Existence of
natural rights 1. Concept of Right
Moral rights are derived from morality & may provide
justification for legal rights. Natural rights are a subset of
moral right, that man is entitled to certain rights.
right is both a liberty to do something as well as a claim
against someone entailing a duty on the latters part not to
interfere w/ that liberty. Liberty entails no corresponding duty on
the part of a 3rd person, it is considered as a legal relation.
Hobbes & Locke: Natural Rights
Hobbes Locke
Der
ivat
ion
o Mans condition in the state of nature, in pursuit of his
desires o Liberty absence of external impediments o Differentiated
between power, liberty, and ability; law of nature & right of
nature
o Natural rights is derived from mans condition in the state of
nature o Mans nature is limited by the law of nature. Rights have
correlative duties. o From this follows that man has the right to
be free & secure in his life, liberty or possessions.
Inal
ien
abili
ty
o Virtually all rights may be alienated, and he surrenders his
right to govern himself to a sovereign o The right to self
preservation cant be transferred
o There is a right to punish in the event of a violation of
right or natural law. There is also a right to reparation &
right to assist those injured in seeking reparation. o It is only
right to property & rights to executive power w/c are
alienable. Rights to life & liberty are not.
Derivation of power from the consent of the governed Manner of
Derivation
Hobbes Locke
Stat
e o
f n
atu
re
o Man is selfish by nature. He desires good and hates evil.
Happiness consists in the fulfillment of desires; desires are based
on the primary desire for power. o Man is also in the state of
equality of ability, from w/c arises equality of hope.
o Man has a more rational or enlightened selfinterest o There
are many things wanting in the state of nature: a) established
& settled known law; b) known and indifferent judge; c) power
to back & support sentence when right
Soci
al c
on
trac
t
o 3 descriptive laws of nature derivable given that man is in a
state of war: a) man endeavors to seek peace to seek peace &
follow it; b) mans willingness to give up his rights for the sake
of peace; c) pacta sunt servanda Through the conventional theory of
morality, fear of the authority compels men to stick by the
agreement. (Justice being what the authorities say it is)
o Men will agree to yield certain rights & transfer such to
an authority so as to escape the great inconveniences found in the
state of nature. o But a covenant is binding only to those who
consent this is his moral justification of authority, aside from
prudential considerations.
Man
ife
st c
on
sen
t
i. Express words spoken, promise, etc ii. Inference silence,
actions, etc.
o There is a difference between an obligation to obey the laws
of nature (tacit consent) and an allegiance to government (express
consent) o Ramifications How is express consent exactly manifested?
If this is left unanswered, any government can claim to have met
the standards and a government may enjoy consent yet is in no
position to establish its authority.
d. Law and Morals 1. Lloyds Law and Morals; Harts Justice
and Morality Hart:
-
Domino, Gutierrez, Leao 14
Morality of a given society refers to the standards of conduct
w/c are widely shared in a particular society. These rules are
distinguished from others bec of serious social pressure, sacrifice
of personal interest, threats of punishment, appeal to respect or
guilt. There is an overlap in content between legal and moral
obligation although the requirements of laws are more specific than
moral rules. Lloyd: There is no necessary coincidence between law
and morals. The convergence of law with morality was because of
three factors namely:
1) Law and morality reinforce and supplement each other 2) They
play an important law in establishing the authority of law and
ensuring obedience. 3) Both are couched in normative
language.
Divergence
1) Law may only reflect popular morality and the higher ethical
standard may not be embodied in popular sentiment.
2) There are certain areas where the law prefers to abstain from
supporting the moral rule because more social evil may be created
than prevented by the intervention.
3) There is a sphere of morality which is best left to the
individual conscience Libertarian approach.
2 difficulties arise in characterizing rules w/c belong to
morality & make conduct morally obligatory (Hart):
morality have their own area of vagueness there are
disagreements as to the status of rules in relation to human
knowledge and experience Conflict bet Positive Law & the
Moral Law Law & morality is interrelated & they interact w/
each other but there is a possibility of serious divergence.
1) Law and Morals must necessarily coincide either because moral
law dictates the actual content of human law. Only the moral law is
valid and the rest must conform to it. Morality= Obedience to the
law.
2) Man-made law and moral law enjoy a realm of its own but since
the moral law is higher, it provides a touchstone for the validity
of human law. (classical natural law theory; natural rights of
man)
3) Autonomy of each sphere so that neither can resolve questions
of validity save in its own sphere (Positivism). This is a
pragmatic view of moral law and the conflict between legal &
moral duty may be resolved in accordance w/ the dictates of
conscience.
e. Law and Justice
1. Lloyds Law and Justice; Harts Justice and Morality
Art. 19. Every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith. Justice is a moral value
or an aim or a purpose that man sets himself in order to attain the
good life. What is the ultimate good is not a matter of
demonstration but of choice. (Lloyd) Justice thought as maintaining
or restoring balance or proportion. The term just and unjust could
almost equally be conveyed by the words fair and unfair. Fair is
relevant in two situations:
1) When the concern is not who a single individuals conduct but
with the way in which classes of individuals are treated
2) When some injury has been done and compensation or redress is
claimed
The close connection between justice in the administration of
the law and the notion of a rule has made some think that justice
is identified w/ conformity to law. The law itself cant determine
what resemblances & differences it must recognize if its rules
are to treat like cases alike. The criteria of relevant likeness
and differences vary w/ the fundamental moral outlooks of persons
or society. The principles of justice do not exhaust morality. Laws
may be condemned as morally bad simply because they require men to
do particular actions, which morality forbids them to do, or
because they require men to abstain from doing those which are
morally obligatory. (Hart) Note: The similarity between law and
justice is that there is a sense of distribution.
-
Domino, Gutierrez, Leao 15
Formal justice may fail to result in substantial justice. An
unjust law perfectly justly administered may embody the most
profound injustice. We choose to accept the criterion by which
conduct is judged. Here there is little distinction between what we
view as good and just. Platonic Justice: Plato: Every person is
inherently adapted to some specific function and that if he departs
from that function, he is guilty of injustice. (An inadequate
criterion of any ultimate good which our own society may aim at
achieving) Formal Justice and Equality: In modern times, justice
had been equated with equality. A law which is applied without
discrimination in this way may be regarded as the embodiment of
justice. Justice, in this sense, is really no more than a formal
principle of equality. Formal justice requires equality of
treatment in accordance with the classifications laid down by the
rules, but it tells us nothing about how people should or should
not be classified or treated. 3 Related Conceptions:
1) There shall be rules laying down how people are to be treated
in given cases;
2) Rules shall be general in character; 3) Justice requires that
these general rules shall be impartially applied.
Substantial Justice: To achieve substantial/concrete justice,
the formal requirements of justice need to be supplemented
1) Concrete Justice: There are certain differences between human
beings that are not appropriate grounds for discriminations like
sex, race, color and religion. Adherence to a value-judgment of
this kind is clearly one of conscious choice and moral conviction
which cannot be deduced from the formal criterion of equality
incorporated in the idea of justice.
2) Equity: Justice should be administered with mercy which means
that legal justice should be tempered to the individual case in the
spirit of equity.
Legal Justice The formal aspects of justice & the basic
characteristics of law correspond. This can be attributed to the
fact that legal conceptions exert influence over the way in w/c
ethical concepts of justice has developed separate from, but
closely related to, the formal structures of a legal system. The
three aspects of formal justice:
1) Existence of Rules: Legal system contains rules which
regulate human behavior and settle disputes
2) General Application: Laws are not necessarily general 3)
Impartial Application: Impartiality is the aim but application
is
different. We would still have to look into the social
development of the people to say if there is impartiality.
Aristotle: Equity mitigates the harshness of law Both justice
and law saw the need to soften the rigors to meet difficult
individual cases since applying too my equity/rigidity will make
the law lose its character. Legal Injustice Three Types of Cases
wherein injustice may arise from the law:
1) Law is treated as synonymous with justice but falls short of
the ideal standards; (Lloyd: different interpretations of the law
is not injustice per se; it is the law itself that must be devoid
of justness)
2) Law is not duly administered impartially; 3) Law is unjust if
judged by whatever value system may be applied to
test the substantial justice of the legal rule. Law and
Substantial Justice Law needs to possess a just content conforming
to the criteria of rightness based on values outside of justice.
Allowing the flexibility on rules by conferring in judges and other
officials the possibility of developing the law and adapting it to
the needs of the society would give the judiciary scope within the
rules to regard the dominant values accepted in the society. The
legislative & judiciary branches can be given guidance to the
values to adhere to in arriving at decisions or in making new laws.
It may serve a country w/ a long tradition of an ordered government
& w/ a fairly homogenous population.
IV. Legal Positivism a. In General
-
Domino, Gutierrez, Leao 16
i. Abstract The school of Legal Positivism found its roots from
the idea of Hume
that human inquiry has two sets what is and what ought to be.
This idea is followed by Benthams concept of utilitarianism which
set the atmosphere for the emergence of Legal Positivism.
Legal positivism is law as it is or positive law. In contrast to
natural law, legal positivism separates the field of law from
morality. What is legal is not necessarily moral. According to
Austin, law may be immoral but still valid as long as it is enacted
by a sovereign. This sovereign can be the monarch or the
legislature. Law as being enacted by a sovereign is the crucial
concept of legal positivism. For legal positivists, laws draw their
validity from a person or group vested with authority. The question
is, who vests this authority? Hart attempts to answer this question
by saying that authority can be found in rules of recognition (ex:
Constitution).
Laws issued by the sovereign should be followed by the people
whether under pain of punishment (Austin) or social pressure
(Hart). However, the sovereign itself obeys no one. Thus, the
sovereign is supreme. One main difference between Austin and Hart
is that for the former, law is a command, while for the latter, law
is a rule.
Furthermore, legal positivists assume that there is always a law
applicable to a given situation. Rules govern society in this way.
However, in case there is no existing rule that can solve a
particular problem, the sovereign can delegate its authority
(delegated authority) to a group which is tasked to decide the case
using their discretion and wisdom (Austin). This is the role of
judges in a given society. The judges make new rules or adapt old
rules and the sovereign can either overturn their creations or
tacitly confirm them by failing to do so.
This delegated authority, if anything, shows how legal
positivism fails on its proposed theories. Legal positivism has an
obsession with rules and how rules should cover every transaction
of mankind. However, should these rules fail, the task is then
passed on to the exercise of discretion by a given group. Thus,
this obsession with rules eventually gives way to human discretion
and how the courts can enforce authority without rules. This
contradicts the positivist principle that rules must exist first
before a judge can enforce. This is where legal realism comes in,
which will be discussed in the next chapters.
ii. Definition and Concept
Legal positivism- man-made law as it is set (posited) by man for
man rather than as it ought to be. It implies that legal rules are
valid not because they are
rooted in moral or natural law, but because they are enacted by
legitimate authority and are accepted by the society as such.
(Source:
http://www.businessdictionary.com/definition/legal-positivism.html)
Notes from Sir Sison: Legal positivism is conceptual or formal. It
is a decision made by human beings. Key tenets of Legal Positivism
(Dworkins summary in Is Law a System of Rules?)
1) Law of a community is a set of special rules, as
distinguished from social rules (custom, culture), used by the
community directly or indirectly for the purpose of determining
which behavior will be punished or coerced by public power.
2) The set of valid legal rules is exhaustive of the law, so
that if someones case cannot be covered by existing rules, judicial
discretion is allowed by the sovereign.
3) Legal obligation is the result of valid legal rules that
require the person to do or to refrain from doing something.
Main Distinction between Natural Law and Legal Positivism:
Natural Law Legal Positivism
Definition of Law If law is inconsistent with morality then that
is not a valid law. Valid law is characterized as right or wrong.
morality- principles which determine if an act is right or wrong,
good or bad.
What is legal is not necessarily moral as long as it is enacted
by a sovereign (Austin) or by rules of recognition (Hart). Law is
laid down by human beings. Law is a norm, rule or command. Law is
formal.
Source of Law God Sovereign (monarch or legislature)
Positivists attack the natural law because by regarding a
certain inherent moral quality as an essential feature of law
without which it is not law at all, it tends
http://www.businessdictionary.com/definition/legal-positivism.html
-
Domino, Gutierrez, Leao 17
to confer on established law a sanctity to which it is not
always entitled, and so creates a barrier against law reform.
Natural Law: A judge to perform his legal duty should refuse apply
unjust laws as being invalid. Legal Positivist: Judge is appointed
and paid to apply municipal law as established organs of law-making
and not to indulge in or to apply his personal speculations as to
system of higher law. It is the judges legal duty to apply that law
according to its letter and spirit.
1. Lloyds Legal Positivism
HUME: There are two sets of human inquiry what is actually the
case and what ought to be the case; ought propositions normative
and actual propositions norms. Law differs from moral norms since
it calls for a certain measure regularity of observance while a
moral rule may still be held valid even if it is never or scarcely
ever observed. Hume indicated to be sought in certain ends or aims
of human life were determined not by reason but by the desires of
mankind passions. KANT: Recognized the two realms of is and ought
but asserted that the latter contained the absolute rule of
morality categorical imperative. BENTHAM: Utilitarianism:
maximizing human happiness according to the slogan the greatest
happiness of the greatest number. The principle of utility was
itself a metaphysical principle. 2 aspects of utilitarianism:
1) Firm distinction between law as it is and as it ought to be
2) Treating law as a science
Law could only be properly understood if it was treated as an
autonomous field of study free from all issues of morals, religion
and the like. The question of the goodness or the badness of any
given law was to be adjudged by the principle
of utility. Legal duty does not cease to be a legal duty because
the citizen is persuaded of the moral iniquity of the duty, but
whether he chooses to comply or obey is a question for his own
conscience.
Law as a Science COMTE: Believe that adequate knowledge could be
attained only by employing the scientific method of investigating
reality by observation and subjecting its theories to empirical
investigation. Criticisms of the Conceptual Approach
1) Tends to induce a frame of mind where legal concepts are
regarded as possessing a certain inherent structure and that any
developments of law which disregard this structure is illegitimate.
This may pose an undue restriction on the legal process
2) Legal problems can be solved by means of logical analysis
disregarding the role that policy plays at arriving at legal
decisions.
3) The level of investigation only uses second-order facts and
not primary facts including behavior of legal officials, judges and
others.
b. Austins concept
1. Murphy and Coleman, The Nature of Law
The command theory of law (He makes the concept of command
central in his theory of law.) Why? Because of the non-optional
nature of legal requirements -The law is a coercive method of
social control, not a moralistic advice. (identifies legal
obligation with force) -The law demands the attention and
compliance of those to whom it is directed. -command- 1)
signification of desire of the sovereign 2)ability to inflict evil
or harm for the nonsatisfaction of desire -Austins concept is more
applicable to criminal law, because his concept of punishment is
only applicable to laws that prevent us from doing certain things
(ex: killing, stealing) but not to laws that allow us to do certain
things (ex: validity of contracts) Notes: Characteristics of
Law:
-
Domino, Gutierrez, Leao 18
-Orders backed by threats -majority of a social group habitually
obey the orders backed by threats of the sovereign person or
persons, who themselves habitually obey no one. (Harts summary of
Austins theory in The Foundations of a Legal System) - Obligation
is based on a rule and a rule is based on a general command, and a
command as an expression of desire that others behave in a
particular way, backed by the power and will to enforce that
expression in the evnt of disobedience (Dworkins summary of Austins
theory in Is Law a System of Rules?) -Law is a command of the
sovereign to render him legal obedience. command -That sovereign is
not subject to anyone else. -Violating the command would subject
you to sanction or punishment. -Gunman metaphor: gunman putting a
pistol on your head uttering the words, your money or your life
-Law also draws validity through habituality. The more one repeats
an act, the more other people will obey the law. Prescriptive (what
ought to be) vs. Descriptive (what is) -Austin terms this as
normative jurisprudence (prescriptive) and analytical jurisprudence
(descriptive). He rejects normative jurisprudence. Instead, he
characterizes the law as it is. -It is not enough to say that laws
are prescriptive because even if you have the Constitution, when no
one obeys this as a point of fact, then no one can recognize it as
a standard. Thus, it is also crucial that laws are descriptive of
reality (i.e. that people as a fact obey the law or at the very
least know that they should obey the law) (from Murphys The Nature
of Law) What gives the sovereign a cloak of authority is measured
by how habitual people obey its laws. What makes people obey the
law of the sovereign is the fear of being subjected to punishment.
A persons beliefs, fears, and motives in obeying the law are not
relevant. Obligation is viewed in terms of the chance or likelihood
that the
person having the obligation will suffer a punishment or evil in
event of disobedience. Statements of obligation predict ones
chances of incurring punishment or evil. Thus, this makes the
obligation to obey the law predictive. Habit vs. Rule (Concept of
Habit of Obedience discussed in Harts Sovereign and Subject)
Similarity: 1) Must be general 2) Repeated when occasion arises
Difference: 1) Deviation from the regular course need not be a
matter for any form of criticism. 2) Where there are such rules,
not only is such criticism in fact made but deviation from the
standard is generally accepted as a good reason or making the
criticism. 3) Habits are not normative and cannot confer rights or
authority on anyone. External aspect of rules: uniform behavior
shows that a rule is efficacious Internal aspect of rules: a
standard for members of society to follow a rule.
c. Harts concept
1. Harts Law as the Union of Primary and Secondary Rules
Rules- obligations with serious social pressure, may or may not
be customary Hart criticizes Austins theory in several ways:
1) Austins concept assumes that there is only one sovereign.
What if the sovereign dies and he is succeeded by another? Should
the old sovereigns rules still be followed? Also, Austin states
that a new sovereign gains authority when people habitually follow
his rules. However, how do you characterize that nebulous
transition wherein he has not prescribed any rule yet? (legislation
with a dead legislator persistence of law)
2) Austin likens the force (which impels people to obey the law)
to a gunman. Hence, he seems to imply that the gunman of society
indeed makes the law (from Murphys The Nature of Law). This is an
absurd metaphor because it depicts law as a wrongdoer.
-
Domino, Gutierrez, Leao 19
3) Austins theory is only applicable to criminal laws, where
there always is a sanction. However, there are varieties of laws
that confer legal power to adjudicate or legislate (public powers)
or to create or vary legal relations (private powers) which cannot
be construed as orders backed by threats.
4) Austins predictive interpretation of legal obligation suffers
from two errors: 1) If it is true that an obligation is
characterized by punishment in case of disobedience, how will this
be a form of obligation? He is merely coerced into doing something.
It is the fear of force that makes a person obey. 2) Predictive
interpretations obscure the fact that, where rules exist,
deviations from them are not merely grounds for a prediction of
hostility or sanctions, but are also a reason for applying those
sanctions.
Hart refutes Austins theory by asking, What must be added to a
command to make that command a law? (from Murphys The Nature of
Law) -There must be rules of recognition. Rule of recognition-
affirmative indication that it is a rule of the group to be
supported by the social pressure it exerts
- Acknowledgement of reference to the writing as authoritative
in order to dispel doubts as to the existence of a rule
- In a developed legal system, rules of recognition are more
complex in the sense that they do not simply refer to a text (ex:
This is ordained by the Constitution.)
- Instead, they refer to some general characteristic possessed
by primary rules (ex: fact of having been enacted by a specific
body like Congress, long customary practice)
Characteristic of Law: -Rules are conceived as imposing
obligations when the general demand for conformity is insistent and
the social pressure brought to bear upon those who deviate or
threaten to deviate is great. -it is the insistence on the
seriousness of social pressure that gives rise to obligations and
makes people obey the law, instead of Austins gunman metaphor.
There is a difference between those who voluntarily cooperate to
see that laws are followed and obeyed in contrast to those who
reject them and just merely conform to prescribed external behavior
just to avoid punishment. In order to retain a legal system, it is
crucial that the first kind of law-abiding citizens are the
majority in a society, since what makes the minority obey is the
overwhelming social pressure on them. Otherwise, this minority
would have too little social pressure to fear. Primary rules- rules
that contain restrictions on the free use of violence, theft,
deception to which human beings are tempted but which they must
repress if they are to coexist in close proximity to each other
Secondary rules- those that stipulate how and by whom such primary
rules may be formed, recognized, modified or extinguished (public
powers) Rules of Change- 1) new primary rules enacted by an
individual or a body of persons for the conduct of life of the
group or some class within this group 2) eliminates old rules Rules
of adjudication- 1) secondary rules empowering individuals to make
authoritative determinations of the question on a particular
occasion a primary rule has been broken 2) This is the role of the
judiciary in the Philippines. 3) Judgments will become a source of
law. In a way, rules of adjudication are a crude form of rules of
recognition. Since courts are given the power to make
determinations on primary rules, then it presumes that rules of
adjudication have given them the authority to do so. Hence, this
rule that conferred jurisdiction on the courts is a form of rule of
recognition. Harts solution for the pitfalls of Austins theory:
Harts concept dispenses with the issue of a dead sovereign since
authority is derived from an ultimate rule rather than an authority
figure. Furthermore, he replaces the gunman metaphor with serious
social pressure. Lastly, Harts concept of law is not merely limited
to laws that prescribe punishment.
2. Harts The Foundations of a Legal System There must be
authoritative criteria for identifying primary rules of obligation.
Refers to an authoritative text or legislative enactment
-
Domino, Gutierrez, Leao 20
Ultimate rule- 1) a rule of recognition that provides the
criteria by which the validity of other rules in the legal system
is assessed 2) often shown not said Rules of recognition- specify
criteria of legal validity Rules of recognition are the most
fundamental laws of a legal system. Hence, it is unquestionable. It
escapes the conventional categories used for describing a legal
system. It cannot be assessed for it itself prescribes those
standards for assessing primary rules of obligation. It is not
valid in the sense that it is ultimate and so cannot meet tests
stipulated by a more fundamental rule. Obedience from the
standpoint of the citizen: Average citizen only cares about
avoiding sanction but rules of change, rules of adjudication and
rules of legal validity are still important for courts and
legislators.
V. Critique of Legal Positivism and Natural Law 1. Dworkin, Is
Law a System of Rules?
Critique of Positivism:
1) For the positivists, a judge has no discretion where there is
an existing rule governing the situation. This assumes that all
rules are clear and detailed enough without further need for
interpretation.
2) Moreover, in hard cases where there is no applicable rule,
the sovereign can assign someone to exercise discretion to decide a
case. This contradicts the principle of legal positivism that rules
must exist first before a judge can enforce it.
Policy- improvement in some economic, political, social feature
of the community Principle-1) standard to be observed, not because
it will advance an economic political or social situation deemed
desirable, but because it is a requirement of justice or fairness
or some other dimension of morality 2) broader than rules 3) can be
used to decide hard cases when no rules apply Rule vs. Principle -
Rules and principles differ in the character of the direction they
give. -Principles do not look like rules. -Principles carry the
most weight in hard cases.
-Principles, unlike rules, still survive intact even when they
do not prevail.
Rule Principle
Both sets of standards point to particular decisions about legal
obligations in particular situations.
Applicable in an all-or-nothing fashion (If it applies to a
given set of facts then we apply the rule. If not, then we dont
apply the rule.)
Broader, flexible, has more weight or importance
Rules cannot conflict with each other in the sense that when
there are conflicting laws, one is invalid, the other valid. Both
cannot be valid.
Both principles can be valid and existing. The validity and
existence of one does not cancel out the validity and existence of
the other. Courts weigh their relative importance in a given
case.
Discretion -A relative concept: Discretion under which
standards? Discretion as to which authority? -An officials
discretion means not that he is free to decide without recourse to
standards of sense and fairness, but only that his decision is not
controlled by a standard formulated by a particular authority
Dworkins Solution on the Pitfalls of Legal Positivism: Treat
principles as law. Rules are not enough. Principles will be
applicable in deciding cases. Also, legal obligation might be
imposed by principles apart from established rules. This is what
judges do when deciding a hard case. However, discretion is not
merely exercised by a judge during a hard case. Even just in
interpreting an existing rule, a judge already uses discretion. No
rule is detailed and specific enough to cover every human
situation, as the positivists propose. Thus, an analysis of the
concept of legal obligations must take into account the important
role of principles in reaching particular decisions of law. Dworkin
provides the transition from legal positivism to legal realism.
Notes from Sir Sison: Dworkin: Law is not a rule. Law is
interpretation. (Application of an interpreted rule to a factual
situation) Moreover, law is not simply an instrument but must
contain a goal you want to achieve. Principle- sense of justice or
fairness broader and more important than rules so every situation
is covered
-
Domino, Gutierrez, Leao 21
Justice- giving everyone his right 9protect and recognize
rights) Judge- the decision-maker so must be competent
VI. Sociological Jurisprudence a. In General
i. Abstract Whereas legal positivism emphasized on the formal
aspect of law,
legal realism is chiefly concerned with the connection between
law and human society. Legal realism suggests that more than the
actual law that a law student tries to master in law school there
is a law or a code that dictates how legal problems and cases are
solved in real life.
In a nutshell, legal realism is not merely concerned with theory
or the black-letter law. It is also and more importantly concerned
with the inner order of how these laws operate. For instance,
although a lawyer may possess all the valid legal arguments to win
an ejectment case, the lawyer must also know the realities that
will lead to a favorable decision. An example would be the acumen
and personal biases of the judge, the bribery that happens inside
the courtrooms, and so on. A lawyer may write all the winning legal
arguments imaginable, but without the requisite (requisite in the
sense that it is customary or habitually practiced by the people in
that specific group) bribe or token gift, his case will most likely
fail. Thus, legal realism posits that there is more to law than
actual text and theory. There is no such thing as a purely
objective and neutral court enforcing a law.
1. Lloyds Law and Society Origins of Sociology Hegel:
-development of human history as following a preordained pattern
-idea of reason actualizes itself in human history and its highest
manifestation is the national state. Citizens are entirely
subordinated to the higher aims of the state, for only in this way
could human potentialities be fully exploited. Weber: -every
concrete judicial decision involves the application of an abstract
legal proposition to a concrete situation. Erlich: -emphasized the
role of social norms (which governed society in all its aspects) in
characterizing the law of a society.
-These social norms are known as the living law. -Thus, the
lawyer needs to know not merely the black-letter law, but also the
normative inner order of the living law and thus indicates how the
law operates. -living law always in a process of change, so that
positive law constantly needs to adapt to it Pound: -With the rise
of modern technology, one can explain the legal process through
social engineering. -Drawing from Jhering, Pound saw the legal
process as a form of social control where all the competing and
conflicting interests in society are scrutinized, compared, and
accepted or rejected. -courts: supreme agent of the law in
effecting social control
Holmes: -Law is not a texture of subsisting rules but a mere
technique for predicting what decisions courts of law are likely to
make in particular cases. -Lawyer must not only know set of
theoretical rules said to be binding on courts. He must also
explore all the sociological and psychological factors bearing upon
decision-making to show how courts are likely to decide a
particular case. Characteristics of Legal Realism: -technique of
predicting decision-making -attempt an understanding of the
functioning of the legal system as an effective means of social
control and achieving societys aims for itself
b. Legal Realism
1. Karl Llewelyns The Bramble Bush Rules alone, mere words, are
useless. Concrete instances are necessary for these rules to mean
anything all. Without these instances, rules lose their meaning.
Characteristics of Law: -Law exists to settle disputes both actual
and potential. (dispute-avoidance) -What officials do about
disputes is the law itself. Notice a regularity of action by these
officials to predict what they are most likely to do in the future
when settling disputes.
-
Domino, Gutierrez, Leao 22
-It will be the actions of the judge and the available means of
influencing their action which make up the law. Rules are important
in the sense that they help you predict what judges will do. -The
law is less concerned with making order than maintaining it when
something has gotten out of order. For the average citizen, law
does not make order. There is order in a society because society is
given and order is given in a society. The average citizen only
deals with the law when there is already a dispute which involves
him. This dispute is a deviation from that order. Hence, the law is
needed to be interpreted to maintain the order. -In addition to
knowing the rules to predict what the courts will do, lawyer should
also know these rules in relation to the life of the community and
the needs of his client. -In other words, he should know the
working situation of his society apart from knowing the law.
Dispute- 1) a larger category than crimes 2) refers to all kinds of
disputes, whether civil or criminal Procedural law- conditions the
existence of substantive law at all (If you dont follow the proper
procedure, your case will fail despite the merits of your case)
Note from Sir Sison: -Legal Realism is a form of legal positivism.
(Comment: doubtful remark, because legal positivism if formalistic
whereas legal realism is concerned with working situations and
factual realities that are as important as the law itself.)
c. Law from the Policy Perspective (Policy Science) 1. Reisman,
A Theory of Law from the Policy
Perspective A variety of distinct functions or operations are
concealed in the word decision. Practice of law- practice of
problem-solving Characteristics of Law: -does not simply consist of
mental exercises about abstract notions or rules -entails making
hard choices, whether for society or for a particular client -a
challenge to action Eight Values of Human Wants:
1. Power
2. Wealth 3. Enlightenment 4. Skill 5. Well-being 6. Affection
7. Respect (the most important of all according to Sir Sison) 8.
Rectitude
Seven Component Decision Functions: (IPPIATA)
1. Intelligence- gathering of information relevant to making
social choices
2. Promotion- agitation to have a particular preferred policy
turned into community law
3. Prescription- legislation or the making of community policy
as law 4. Invocation- provisional characterization of some behabior
as deviating
from prescription 5. Application- the specification of law to a
particular set of events and
the determination of a sanction 6. Termination- the ending of
existing prescriptions or laws and the
design of appropriate means of compensating those who had made
good faith value investments in the expectation that they would
continue
7. Appraisal- a consideration of the aggregate effectiveness of
the entire decision process in terms of whatsoever community
policies are to be realized and recommendations for structural or
personal change
Notes from Sir Sison: -Formal law- a myth (Drawing from Reismans
Myth System and Operational Code in Folded Lies) -Informal rules-
1) decision combined with effective control (effective control:
acts done by public officials to enforce the law) 2) operational
code -Three aspects of law: 1) Formal law 2) Operational code 3)
Enforcement -Law must be obeyed.
-
Domino, Gutierrez, Leao 23
-In a society where there are competing interests, the
overarching value is human dignity. -Institutions:
1) Government 2) Non-governmental organizations 3) Peoples
organizations