READINGS IN LEGAL PHILOSOPHY AND THEORY
CHRISSA MAE T. CATINDOY
AB LEGAL MANAGEMENT 3
READINGS IN LEGAL PHILOSOPHY AND THEORYCHAPTER 1
INTRODUCTORY CHAPTER
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 practical 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
drawn from pure reason.
FUNCTION OF PHILOSOPHY OF LAW
Philosophy of law is a quest of law which appeals to reason to
obtain justice.
One function of philosophy therefore is to formulate law that is
reasonably acceptable to the people to whom it is 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.
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 Politics.
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 the 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 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 Nichomachean
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.
The contribution of the Romans to jurisprudence is the
formulation of codes, putting together in a systematic form the
rules and practices.
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 individuals 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 Aristotles 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.
CHAPTER III
HISTORICAL SCHOOL
SAVIGNY, OF THE VOCATION OF OUR AGE FOR LEGISLATION AND
JURISPRUDENCE
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, in this
respect, represent the community.
LAWS 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 individual 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
nations 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.
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 Savignys 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.
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 is 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 apportionment 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 law 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 all-wise autocrat to the
impersonality of the rule of law. He knew 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.
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 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.
ARISTOTLES 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 a 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.
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 proceed 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.
Aristotles 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.
THEORY OF LEGISLATION
Aristotles 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.
Legislators state must have a political life, a life of
intercourse with other states
A legislator must make sure that the nations arms should be such
as enable it to meet its foes in its on territory.
The legislator must pay attention to the foreign relations of
the state
The legislator should not make conquest the aim of the
state.
Ciceros 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 is 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.
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 reasons, and therefore they have also received
the gift 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 law 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.
KANTS THE PHILOSOPHY OF LAW
PROLEGOMENA
LAW AND ETHICS
General Introduction to the Metaphysics of Morals
Laws of morality is 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.
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 called 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.
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 individuals, 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 Stammlers Theory on Law:
Law can exist only if actual society exists.
The realm of law and the natural world are distinct.
Most systems do assume that law is complete and exclusive system
in itself.
HEGELS 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
philosophys 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 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 is nothing
new. Philosphys problem is to isolate those truths and to exhibit
their logical 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. Philosophys 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:
The divine laws, or the laws of God: that is to say, the laws
which are set by God to his human creatures.
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.
Positive morality, rules of positive morality, or positive moral
rules.
Laws metaphorical or figurative, or merely metaphorical or
figurative.
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 is 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.
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 accomplished through the
following:
He determined the essence or the nature which is common to all
laws that are laws properly so called. And,
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:
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.
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:
The revealed or express
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:
Laws properly so called, with such improper laws as are closely
analogous to the proper;
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:
Properly so called the laws of God
Properly so called the positive laws
Properly so called, with the laws improperly so called, positive
morality or positive moral rules.
Positive moral rules distinguishing characters:
Laws or rules set by men to men as are not armed with legal
sanctions;
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:
Laws set by God to his human creatures; and
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 appellation 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 incite or restrain.
Every law or rule (taken with the largest signification which
can be given to the term properly) is a command.
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 youre 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:
A wish or desire conceived by a rational being, that another
rational being shall do or forbear.
An evil to proceed from the former, and incurred by the latter,
in case the latter comply not with the wish.
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 ones 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.
There are other objects improperly termed laws (not being
command) which yet may properly be included within the province of
jurisprudence:
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.
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.
Imperfect laws, or laws of imperfect obligation. A law which
wants a sanction, and which, therefore, is not binding.
COMMENTS BY PATON ON JOHN AUSTINS IMPERATIVE SCHOOL
Paton discussed Austins 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
Austins 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. Austins 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 legal
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 Austins foundation to be rather unstable:
Firstly, it is clear that there are no universal 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.
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 cataloging
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 analyze 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 judges view of the purpose that law
should achieve.
What is here st6ressed is only that the analytic system based on
Austins 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
analysts 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 theoretically anomalous is based on sound
views of public policy.
Thus, criticism of the analytical school emphasizes two very
significant truths for jurisprudence:
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.
KELSENs 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 it 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 is moral and therefore by its nature just.
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 these 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 is 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.
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 defining 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 imposes an obligation on a particular
individual.
It is difficult to appreciate the significance of Kelsens 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 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.
Kelsens 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.
Kelsens 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.
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
18th Century Law-of-Nature School;
Metaphysical School during the first half of 19th century;
and,
Social-Philosophical School the Neo-Hegelians seems to have the
most fruitful program
Historical School
German Historical School; and
English Historical School
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 only.
In its crudest form, this is expressed in Austins dogma that a
law is a command.
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. They consider developed system only;
2. They regard the law as made consciously by lawgivers,
legislative or judicial;
3. They see chiefly the force and constraint behind legal
orders;
4. For them the typical law is a statute;
5. Their philosophical views are usually utilitarian or
teleological.
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 the 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;
Have no necessary preference for any particular form of law;
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.
1. 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.
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.
2. 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 well-ordered social struggle for existence.
3. 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 Wards thesis that psychic forces are as real as
physical forces; and,
3. Tardes demonstration of the extent to which imitation is a
factor in development of legal institutions.
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.
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;
Study of the means of making legal rules effective;
A means toward the end last considered is a sociological legal
history;
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;
Make effort more effective in achieving the purpose of law.
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
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.
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.
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.
Those changes brought decline among law students in their
understanding and appreciation of the internal discipline and
coherence of systems of law viewed 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 lawyers 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;
The so-called legal rules and principles are some of many hunch
producers;
Whatever may be the stimuli to the making of those hunches, may
loosely describe the judges personality;
Neither the background stimuli nor the congeries labelled judges
personality are stated or statable in terms of the conventional
legal rules and principles;
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 the rules.
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 judges statement of those
facts.
The formalist conveniently neglects the jury.
CHAPTER VIII
THE COMMUNIST THEORY
KARL MARX
Marxs 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
Marxs 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.
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.
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 LAW
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.
CHAPTER X
NATURAL LAW
ST. THOMAS AQUINAS, THE SUMMA THEOLOGICA
Law is a rule and measure of acts, whereby man is induced to act
or is restrained from acting.
The rule and measure of human acts is the reason. Reason has its
power of moving from the will.
Every act of reason and will in us is based on that which is
according to nature for every act of reasoning is based on
principles that are known naturally.
Justice has its source in nature; thence certain things came
into custom by reason of their utility; afterwards these things
which emanated from nature and were approved by custom, were
sanctioned by fear and reverence for the law.
In temporal law there is nothing just and lawful, but what man
has drawn from the eternal law.
First precept of law: Good is to be done and ensued, and evil is
to be avoided.
Any point deflecting from the law of nature, it is no longer a
law but a perversion of law.
COMMENTS BY JACQUES MARITAIN ON ST. THOMAS AQUINAS
St. Thomas succeeded in constructing a philosophical and
theological wisdom so elevated in immateriality that it is really
free of every particularization of race or environment. His
metaphysical principles were based upon objective reality.
FOR A REVIVAL OF NATURAL LAW DOCTRINE IN PHILIPPINE
JURISPRUDENCE
By J0rge R. Coquia
There has been a sudden increase of law schools, but a meager
few have ever attempted seriously what legal philosophy they should
stress to students. One of the causes is the confusion that there
have been many different approaches to what proper end of law
is.
There is no denying of the fact that in each attempt to
enunciate a new philosophy of law, human experience has led to
insoluble difficulties and to inescapable inadequacies. The
ideological conflicts in our times have forced the return to the
natural law way of thinking thus giving truth to what Gilson once
said that the natural law buries its own undertakers.