Doctrine of the mean exis Habis) Virees Law and equity Chapter 25 “The Legal Philosophers St.Thomas Aquinas. Chapter 26 ‘The Legal Philosophers ‘Thoma Hobbes. Chapter 27 The Legal Philosophers John Locke, a Chapter 23 ‘The Legal Philosophers ‘Chartes de Mantesquien Chapter 20 ‘The Legal Philosophers Joan Jacques Rousseau Chapter 30 ‘The Legal Philosophers Immanuel Kant, Chapter 81 ‘The Legal Philosophers Georg Wilhelm Fricrieh Hogel (Cave study. Ter of ofc ofthe president 170 13 119 182 185 188 191 192 CHAPTER INTRODUCTION TO LEGAL PHILOSOPHY “Amidst the ros currents and shifting sands of publi life {the aw i ikea great ark upon which a man may se Ii oct and be ae” Lond Chancllo Sankey Jus ars bon et cequit 1. ItRODUCTION A LAW Law fo rue of conduct, resized by custom or by formal enactment, which a community considers as ‘Binding upon ts mentbers® The Stanford Eneseopodis of Prilnph calla law complex socal phenomenon and is'one of the most Intricate aspects of human culture {Laer in normative in that it gules human conduct. But {ts not the only rare’ of normative conduct for there {sale religion, morality, custom and convention. Law is ‘ertainly cnnected with the ether sources of normative Tehavior tut et the same ime iti datinc fom them. In fact, rdigion, morality, equity, custom and societal ‘convention ae among the sources of law, partly ete eng hu pcesennting wat at solr marae te Nes Intra Waser’ Compre Dona of the Bali Langa, Bhat Nol, el oncogene at toe Ser emmy epi ti afl ah mareoa aon roe MNO ‘The term law comes from Old English lagu (pag) meaning something laid down or fxd It in turn comes from Old Germasielagan which means put olay. “Lagal fees from the Latin lagli, where fex (pl epes) means Taw, Thus, ve have les terra, the law ofthe land; es for, the lw ofthe frum or court fr lori, the law ofthe place; Jee mercotoria, the lw ot custom of merchants (coro defines law as a ‘natral free th ‘highest reason} one implanted. in Nature, which commands ‘wnat ought tobe done and forbids the opposite Itis the ‘mind’ ani ‘eason ofthe intligent ma” whose ‘natural fuanetion’ sta ‘command right and forbid wrongdoing Aquinas writes that [hw is rule and measure of [hhuman] acts.-pertaining to reason When confronted (withthe abjeiion that law is nat something pertaining To ressom.e4u Tee another aw in my members,” Aquinas fd thet law i it all those things that are inclined fo something’ Thus, the ineination of the members {to eoneupisconce, Le. sexual desire, i called the la of the members? Others insist itis wil not ‘easoa’ that moves people to act a8 they do. That law pertains not to reason but to wll Tw)hateverploaseth the sovereign, has The force of flaw? Aquinas says that for true ‘will to be Tae ichas tobe in accord with reason. Ifthe will ofthe sovereign would have the force flaw it must be under the ‘Command of reason, otherwise the ‘sovereigns will would ‘vor of lawlessness rather than of aw. ‘The Supreme Court definslaw asa ‘rule tablished to guide our actions’ with no binding effect until it is tcied thus it has no aplieation to pat times but only to future time” In ite eneral and abstract’ gens, Law is the scence of moral laws founded onthe rational nature ‘of man’ that govern his free activity for th realization tf the indvidaal and societal ends of life? in its specific NerRODUCTION 79 LEGAL PHILOSOPHY and concrete sense it ina rie of conduct, jut, obligatory, formulated by legitimate power for common observance sand benefit DISSATISFACTION WITH THE LAW? Indeed, the prinipal means for the regulation of social alfirs is throagh law. Man's relationships and {fealings with hie fellowmen would bo chaotic without the comsdourness that Taw will be there guiding and pmtecting each person's day to day affairs, When ono Bards the jeepney, enters a restaurant, hires tbe services tra carpenter or apeaks before his colleagues, he oF she is {ding 20 with the fith in Tnws abiding hand ever ready fopratect him. Yet, oe often hears of comments nat only ‘Clical bat epnial sbout the law's treatment of ordiry people? ‘According to Weerammantey: Atgewwing lay disrespect is today nibbling st the fnundations of the law, the prime reason {tthe failure of the la to communicate with the layman. The layman sees his expectations (tjance belied in many am instance and with ‘Coch shortfall between the practical decision fan the ideal result, there follows a diminution ft respect, lowering the prestige of law and lawyers alike, “Among the accusations heaped on the practitioners flew iasome are ot truly interested in the la (rincple of trth, fairness and justice. Rather, in their Protiical qucat to win cases they regard law practice ‘ch like shal business deals which resort oinflaence Doddling or buying their way Uo victory. These are the Minguided ones, and true law would have no place for them. ee ae rea: Tartan Patipie Chmity Sept Oe, 60 04 854: 4 CAR.) Cena 7.6, osama, The aie Ce: Brie of Underdog, Capes, Ldn 18793 "Mio. Cort Appa 128 SORA 52Bocon enumerated his grievances against the laws of England, mich of which may be ebserved in our present sorety, as follows: The multipety and length ft suits is great; the ententious person ia armed and the hhonest subject wearied and oppressed the judge is more sbsolute, who, in doubil eases, bath a greater seope and Iiberty; the remedy flaw (is) often oboeure and doubtful, the ignorant lawyer shroudeth his ignorance of law." OF course, the so-called ‘great uncertainties! and ‘varity of opinions? may be regarded as ultimately ‘eneficial rather than detrimental tothe evolution of lave. As every law student and practitioner knows, law is ina ‘constant fx. Its in 9 continuous proceas of change, of selforrection, and adjustment. Hopefully in ite changing §arney st continually reflects the werites of justie, and aligns itself always with truth and fairness. ARE THE FOLLOWING SUBJECT TO THE RULE OF LAW. Inite broadest sense, lw isa way of doing things for ‘the eitzons to comply wth existing community standards, ‘Thestandard may be moral or ethical, economic, caltural, religious or one for social benefit and welfare. Based on these standards, are the fllowing situations subject to the rule ofa? Why? 1, Rensta, jealous of Donata’s physical endowments and financial schiovernents, decides to. expose Donsis's dark past ai prostitute, by way of releasing im the internet an alleged video of Renata ‘in avery compromising situation with a elient. Is Renata’ act subject to law? What aboot Denata’s past? 2, Teotima’s husband is now skin and bones due to canoer. Her husband refuses medical treatment, fg. an operation or medicines, does not like an TV injection (dextrose, in general tbe fed anything ‘Teotima is worried that her husband's family will cease her of malteating er husband by not giving INTRODUCTION 70 LEGAL PHILOSOPHY bis medical ald. Would Teotima obey her hosband for have im frebly sent tothe hospital? Whatever Shor doesin, i it awful? 8. Poquito is sildier fn the Corélleras. As it was Christmas, ceasefire was deelarod against the fenemy, As Poguito walked by the lake, be saw ‘Ambrosio, ofthe enemy camp, drowning on th lake. ‘Pocuito saw Ambrocio but walks on saying he has ‘thing tod with Ambrocio. Ambroco drowns, 4. Adonis tikes women, and loves to joke with them in f tood-natured way. In the bar he saw a friendly foul Venusa who sted and winked a him. Adonis ‘immediately puts hi arm around her wast, Venus, ‘tended, said stop that” but Adonis say ‘Oh don't ‘be pcpot, Tm Just trying wo be fiend” is Adonis violating any law? 5. Dr. Kacobobe, a respected doctor at the district hospital, came from a convention in Mexico. On ‘rsval back home, he got sick with fa, The hospital {efases to admit’ him back for work unless te ndergocs a swine fu test, which Dr. Kacobebo elses saying that he is decor and doesnot need {ogo through such tests, Ia De. Kacobabo right? D. PHILOSOPHY Philosophy means love of wisdom or the search for truth Is comes frum the Gredk tarm philosophic, which {n turn derived from philor, Love, or pili, friendship’ ‘atlection; affinity for, ‘attraction toward,” and sophos, “a. eage’ “a wise one” or sophia, ‘wisdom, ‘nowledge, “Gil "intelligence Its the search for the reality and truth of things. It secs to disover the esence, nature land foundation of things, a opposed to their appearance. ‘Philesophy endeovors ta understand fundameotal truths boat people, the world, the relatienship of people to the ‘world and of people to one another. Greek philosopher and mathematiian Pythagoras (689 BC. 500 B.C) was the first to call himself Teer A Rees Diary of Phephy, Barnes and Nble Dis 151VONACASE STUDY APPRONCH Dhilosophes, a philosopher. To him, shiz meant the ‘knowlege of the underving reasons or causes for things as they appear to us, knowing the reasons why a thing {s what it is™ This means to got to know the realty oF fescenee of a thing beyond ite common or day-to-day appearance Philosophy isthe search for meaning. Browing’s Fra Lippo Lippi insist that life has meaning, and to fin itis ‘my meat and drink It is philosophy’ task and mission to peel the multifarious layers concealing lies true aims, an for a thoughtful person this need be done ona day by ay, if not minute by minute basis, Philosophers are the ‘Mityas of the world who constantly seck to understand since they are those who ‘don't want millons, but an never to their questions” Thus, phibeophy ‘nay not ‘reap for its practitioner wealth, fae or worldly success ‘There is the promice, however, that an intimacy with philosophy which Plato cals his "dear delight” may bring ‘neo discover lif's and phenomens's deeper connections, [purposes and meanings such tht one dacs not ive merely but live rightly and richly. Eminent Filpino legal philosopher, Pr. Ranhilio ‘Aquino, writes of philasophy asa) the knowledge (scien fia) of things by their ultimate ecuses or reatons (per tultimas causae ve rations). This means philosophy deals ‘with Uhe'inal eases, the ‘ultimate eausoe or the ‘prima principi’ thats, something that deal wih fundamental beginnings, first principlos and basic elements; b) that ‘whieh provdesthe person witha’mapthat gives coherence tohisactivities and that maker offumanlifea meaningful ‘whole? «) something thet uncovers the ‘meaning’ of ‘Phenomena. By phenomena means something. ‘which Appears’ that which can be gleaned by the senses but ‘whose inner meaning and reality remain concealed. And this may be done through the aid of hermeneutice, which meaning in the present parlance is no longer limited to the interpretation of holy texts and serpttes but to the “Dane The Bates rama very structure of human understanding and existence itelf and) that endeavor which gives aogical account of the way we ue our terms, which s within the realm of ‘analytic philosophy. Socrates says af philosophy that {we} are discussing ro small matter, but how we ought to ve» And living ‘igh et exertie knawedge and veason. Like morality itself, pilocophy is ftst and last, an exercice of reason: "That ons’ eonelsions should be informed with reason rot only from one side, but all sides to the argument shouldbe carefilly weighed and considered. One's ideas ‘should tand on the test of reason and rigorous inquiry, {ease through philosophy’s exacting requirement and ‘seule standards ‘THE BABY THERESA CASE: ‘Theresa Ann Campo Pearson washornanencephalic in 1992"This means mare than 80 percent of er brain is tbsent; only the brainstem sustains her breathing and Ihearteat. Only 300 af such babies are horn alive every year and they Inst afew days. Knowing that their baby ruld nt live lng, and even if she cou, would not be tenacious, they volunteered her organs fr transplant: ‘hat her eyes, Kings, Kidneys, and heart go to other children, The dotars agreed Would ithe right to Baby Theresa’ organs thereby causing her immediate death? The following are the ‘iferen philosophical (ethical) arguments raised for or ‘against the decison of the parents. 1. INFAVOR 1A. The ‘Benefits Argument’ is based om the ttltarian philosophical seheol Basically, it posts the belief that if an idea or act gives but the ‘rentest happiness’ forthe ‘greatest ‘number of people rich is goed and moral ‘The logic inthe benefits argument ia this: Gato ‘A Palapye Lam Philipnina Sore, Vl XVI, emia reported ty Paton The Republi_LEOAL pumLosoPay FOR FUAPINOS: ‘KEASE STUDY APPRONCH Bay Theresa wil only lve «few days Due to the absence of most parts of her brain, she is neither conscious nor feel anything. Personally, she isnot harmed Af her organs are given (non-personal thar on the donor argument ‘eSince her other ongans aro stil ood, it will be more beneficial to give them to Other children who might need them more. This way, others are more than Thenefted (benef to others argument). 4. The conclusion ia, under the creums- tances it beter to donate Theresa’ organs, 1.2. The braindead’ argument. There are these ‘wto insist that baby ‘Theresa, while sill Dreathing, ix for all intents and’ purposes, brain dead. Thoy argue that: 4, Though breathing, itis but a mechanical act on the partof Theresa She does not Ihave most of her brain to begin with b. There sre meny brain-dead people ‘who continue. to "breathe" through mechanic] asitance Brain death is ‘eal death. One io pro- ‘nounced dead not when his hear: stops beating (ea cardiac arrest) but when his ‘mind stops functioning. ‘An artisle that appeared in the Journal of ‘Neuroscience Nursing favored organ donation and the familys right to make an Informed choles in ‘cas of bain dead persons. ‘The need for organ transplants has ‘increased 200% over the past doeade, while ‘the mumber of organ donors has remained rolatively constant. ‘The familys refusal to ‘consent to organ donation has been cited we one of the Kay factors in the shortage of organs. Lack of understanding about brim death and organ donation have been Hontiied as reasons for refusal to consent. Families of potential organ donors are reeoiving inadequate information to make informed choices about organ donation, and their emotional neods are not consistently Inet, Nevrescience nurses can improve con Sent rates for organ donation by effectinely ‘nddresing the needs of the potential dance.” 2. AGAINST ‘Thove against the dedsion of Therest's parents offer two arguments to thelr side: 21 “We should net use people as means” argument: 4. Human beings are ‘ends’ in themselves. Each has his own end parpose. Its not food to use a person at means to ther peoples end b. ‘Harvesting’ "Theresa's organs while lve i to tse Theresa for other people's ends, ¢Theconcluson i the taking of Theresa's frgans cannot be justified under the ‘creumstances, 2.2. ‘Killing ise! argument: ais evil toll someone, unless the one led was aa. unlawful ogressor and the one liling bas no ether way except to defend his ie. Baby Thorees is not a case of salt defence, She ie a completely helpless baby: ‘e_Bvery porton has a purpose. We de not know what Theresa's purpose is es Tanai Jounal of Nerden Nursing ebay, 3989They say Thoresa is unconscious or Uunfocling. We cannot be sure bout that. They say Theresa won't last beyond a few days. Fis, we cannot be sure about that Second, we do not determine when fone dies since we do not own OUF OF ‘another hie {.Inconclasion todonate Theresa's organs fs to Kill her. And killing « helpless Ihumnan being is none other than murder. ‘The Washington Post, commenting on the baby Theresa caso, came up with this view ‘edemning the near legalization or euthanasia Serey Killing” ‘The frontier of medical ethics is a busy place. The heaviest activity these days is near the retary marked “the killing of innocents” Lact year, Washington state camevery cose passing a referendum to legalize euthanasia. Derek Humphreys "how-toeuiide” manual topped the bestseller list. Solty is growing increasingly tolerant of the idea of cutting tf the life of people who have had enough, Generally. speaking, the moral. pioncors took to Kill the innecent (the terminally il, for example) for their own good. Last week, however, there was a further advance: An attempt was made to deliberately shorten one {innocent life not fr is own good but for thet of another.” E, USES! OF PHILOSOPHY: DEEPER UNDERSTANDING According to Kolak and Martin, philosophy ‘san axe. in its attompt to gun deeper levels of ‘understanding, it must continually question every thing we believe in. That {Where isa frozen aoa within us. Philo sophy io an axe, Everything you believe is questionshle. How deeply have you ‘questioned 1? The uncritical aceptence of Eelefs handed down by parents, teachers, politicians and religious leaders is dangerous Many af these belie sre simply false. Some ‘of them are ies designed to control you. Even ‘when what has been handed down i ruc, it Jenct your truth. To merely accept anything tilhout questioning its tobe somebody elae's ‘puppet, second-hand person. Beliefs ean be handed down. Knowledge can perhap he handed down. Wisdom can. bpever be handed down. The goa of philosophy Srwiedom. Tying ta hand down philosophy is “Unphilosophical Wisdom requires questioning Wwhet. fs questionable. Since everything is le, winder requires questioning ‘erything, That i» what philecophy is: the [tof questioning everything” wispowt Will Darant, author of the classe introductory text to philoophy "The Story of Philosophy’ posits hatte shameful question to asi philocophy is ‘useful ‘The busy reader will ask: is allthis phic losophy’ useful? Te i « shameful question: we do not sak of poetry, which s also an imag Shative construction of a world incompletely {nown. If poetry reveals to us the beauty oar Tuntaught. eyes ave missed, and philosophy {ives us the wisdom to understand and forgive, [senoush, and more than the work’ wealth Philosophy will not fation our parses, nor lif Seni Wand Round Marin, The Boerne Pip, Blan, hare Rrthner, ‘The Cae of Baby Thr’ he Washington Po =a ‘cate adowoth 20,2 ge 1098us to dizay dgnitis in a democratic state; i tay even make wa lite careless of these things For what fwe should fatten our purses, for rise to high office, and yet all the while re ‘nal igorantly nave, onasely unfurnished in the ming, bral in behavior, unstable in char ‘ctr, chaotic in deste, and Bindly miserable? woPerhaps philosophy will give us, if we are faithful to it, a healing unity of soul We are so slovenly and self-entradictary in our thinking: it may be that we shall clarify tvseves [LEGAL PHILOSOPHY (JURISPRUDENCE) Leal philosophy is a yntematic study that socks to understand the a) nature and essence of law; b) its definition and elements; e the soures ofits authority, d) {ie various applications and development; and e) its vole in sosely, ce ts relationship to ether institutions and sheietal practices such aa norms, morality and custom. Ie ‘explores on the perennially dificult question regarding ‘he relationship between law and merality, and ax to wheter the tw are linked ce separate Legal philotophy, also known a jurisprudence or the science and philosophy of fae, concerns itself with andamoatal questions like what i Iw as such, and not ‘what is the Philippine law on say, property. Rathor it Teeks to know what is laws “true” nature, it ultimate foal and purpote. This presumes that “law” has certain, ‘haracteriatis and qualities common to all the laws of the word, While layers study on which law applies toa particular ease, legal philosophers ak if what purports to brea “law” i ded tru l,i that it complies with the requirements of what lw is. Jurisprudence comes trom the word Latin juris- prudentiay meaning knowledge of the law. Jura, the genitive form of Jus, meaning ‘law’ and prudent. ‘nowledge’ Scholars and practitioners of jurisprudence seek to achieve a deeper understanding ofthe nature of ‘ve, its application through legal reasoning, and how law js used in practical ways by lng systems and institutions rnemmopcTiON TO LEGAL PAILOSOr! Jurisprudence thus delves into questions such a what is the essence of law? what problems and dificaltis exist ‘within portiular legal eyeiem ond institution, and how dos law incense with the larger seiety within which it fanetions” ‘Dr. Jorge R. Caquia defines ‘philosophy of lw asa “quest uf la that “appeals t reason’ in order to‘ebtsin jistce ™ He sa Resort to force usually signifies the failure of ‘the law to persuade people to whom its addressed. ‘What the King, emperor, or the prince orders tras the law and everyone obeyed it out of far oF punishment, Force was usually resorted for its fnforcement.One function of philosophy therefore = {oformulate law thats reasonably acceptable tothe people ta whom is addressed. Philosophy law i {hereore opposed to tyranny.” For Ingal philoophy profesor Antonio Estrada, philosophy of law involves an understanding ofthe place teat lew in human fe He asks: In what way do statutes and judicial decisions, cinstjutions and interational troaties conribute {B happinest? What mutt the legislator aim at, ‘wat must the judge bear in mind, what sovereign. Princple end clear consciousness of definite Timitation must guide tho efforts of the executive fr Chie of State? That the ultimate succes of ell these must depend upon their knowledge of their Inatecal ~ the tse of esl authority — and that uch knowledge isi drct ration to their mastery ‘the Principle of Justice, ought to become evident fis the matter unfold Fr, Ranhilio C. Aquino says that philosophy of law is not the leisurely pursuit thatthe law — and lawyers 2% do without (or even postpone) It is the “cask of Sire Co, ting in Lage Phy and Thy Tet ad Com ae P hingalexotn H hos atin, P ey Lay ests Bk See IH"RCASH MTUDY APPROACH philosophy to provide the person with a ‘map’ that gives ohorenes to hivactvities and that makes ofhuman lifes caning whole He said that: ulndertying all legislation apd rule-making is philosophy, perhaps unarticulated but nevertheless Dperative and efficacious justice is to be achieved, fot as some fined and static “idea” but asa project, hen the philosophical mats of law and decision- making hes tobe brought to the level of reflection, that f explitated “and critcise..it- becomes [therefore] the task ofthe philosophy ofiaw touneit the goal ofthe lase and its underlying motives — hot really the motives af the legislators, primarily, that of society that erates laws and sustains thera™ G. FIVE SCHOOLS OF JURISPRUDENCE Five schools of joriaprudence have variously ‘answered Uh raifcatons ofthe ceminal question “what islawas such? Thece ere natural, positivism, realism, forma declan a Now: Naturalism ‘Naturalism maintains that law snd morality are not seporate, that on unjust law is not true law and that law must refect the elernal Varies of justice and faimess ‘Natarlism or natural aw theory which wil be discussed in more detail Into i this book, believes that there are ational (eg. ethical or moral) limits to the power of Congress to enact laws. As former U.S. senator William Hr Seward one i: "Thre hghr law than he conatitation™ Positivism Positivism believes that la and morality should be soporate, and that law is valid Wiis validly posited by lawful government or authority, Positiists believe that the validity of aw, that i, the fren of law doesnot come TSS ain ure ‘Alam Henry Sard 1801-72), Spa, US. Senate, 11 March 850, cour nemopcrioN 10 GEEAL PEMLOSOPIY rom hazy metaphysical sours, Instead, lawis something ‘pebluet or made in accordance to socaly accepted rales. Pe ahorepostvists belive that laws are man-made, Laws are mot products of heavenly notions and seals but ‘Homa mare earthly agreement (convention) among those eb ei An example the decision to choose the colore WrtatieHigh, or whether the country drives leftor right Inthe US. ant the Philipines motorists drive right, ‘hile in Canada, Honglcong and Australia they drive let Fe poitiviata, there is nothing ‘moral about whether ‘vommunity dives left or left These are merely man- Inade and sodally agreed-upon rules, nothing more snd poting es. Realism ‘The realist or functional” schoo! holds that law i determined by ‘reel world practice’ and experience. In ether words law ie what the lawmakers, jodges, awyers Peutnecs people and society “Go with it” Law is not [uiet elentifi pilocophical or logical activity. Rather, fs bared on Humat-blood end sweat-experience. Law is ‘othing but by-produetof the lawmaker or the judge's | Pelideal religious, economie or peychological elit. ‘etree Eran belongs to this school. In his ‘Law and the adorn Blind he pets that nw isthe proper atudy of what eeeatr actually do and not what they say they are doing. ‘That in making a decision, the judge's mood and state of ss that day euch aa the condition of his arthritic knee, Tis religious belies, bigeos such as his great disike on ‘Rbling this Father having gone bankrupt on gambling Seroer) areas important determinants to his eelasions GE'S previous deisions ofthe Supreme Court. In other Words, Taw, poychology and personal politics are not TREE Pome soctl extn famously i humorously, ‘Sold Taw is what the judge ato for breakfast, or equity 8 Bt he length ofthe Judge’ ear. Formaliom Formalism on the other band posts that law is a strict aiece governed by formal axioms” and principles Tart ta eit x peealy neil ethWhich are used by judges, using the rules of lie in Aeciding and determining the outcome of @ case. The flee and procedures used in deciding easoe are mot to be found exterally such a8 from politics, ethic, religion, ‘perience or emotion but within the system of elaborated ‘lod themselves. The abstract princplesof law necessary fo arrive at # sound judgment, seording to this school ff thought, may be found within the wordings of the law themselves. Thus, 2 formally trained logal profession ‘would be needed. One whe dacs not have a background in the intricacies of logal reasoning eg. a non-lawyer, ‘would not be allowed to appear and argue his ease before the court onthe ground that he would not have sufficient knowledge ofthe formal rules and pracidare constituting the warp and woof ofthe systom Critical legal studies Critical legal studies belioves that law is but an ‘expression ofthe poliey goals of whoever happens tobe, ft that particular moment in history, the dominant social troup. Tha, i the raling power happens to be socialite Ins Wwould elect suchanideclogy aswell. Oncexponentof the Critial Lagal Theory is Antonio Grams (1891-1937). Gramsci argued that people consented tothe interests of the dominant elast not because they were forced or ordered to-do so, Instead, the dominant classes had organized society using the proces Cramec calls hegemony. It ie 9 Sociologia prosese ed by the dominant power eg. the ‘wealthy, to organize society using their cultural power {and influence to achieve dominance. This explains for ‘example why people in lesser developed countries who Ihave dark skin and hair, de their halr blonde or adopt to Western ways of speaking and dressing, the Western culture at this ime being the dominant eulture. Thus, Father than having the state fore its view on the people, ‘a more effective way isto have the values of the elites ‘be made apparent. through cultural power, eg. media, ‘and Uhreugh a subtle negotiation and inftuence, the lower Clases wil wnconsciously edopt the habits, ls, norms ‘and culture ofthe daminant classes. CHAPTER 2 NATURE OF LAW “Before we come to the individual laws, {et us lock ot the character and nature of tae, for foor that, though i mous be the standart fo which we refer everything we may now and then beled ata yan inst ferme, and forget the rotional principles on ‘ur lau must be based... Cicero, The Laws" |. LAWAS RULES AND PROCESS: A LAW AS RULES: A common misconception ofl Dut a set of rules and that when dispute arisosall a judge des i find the right rl and apply it mechanically, even ruthlessly. "Thisishow formalise regard law. Thisdefinition had come under severe eitciom, Some fel it isa reduetionisti, ce. Simplistic way of looking at nw aa it fails to take into ‘ccount the aality and socal context ofthe lw. In other Words it looks at law as rules ad fails to consider the Aleeper ~ human or social ~ fectors why pesple violate the las, and the impact ofthe violation on the wetim, the Taner scety as well as the offendor. Another ertcism of the law as ruled approach iat merely eaters to efficiency fd, quick dspoval of cases from the court dockets, That ite dsmissive cf the other aspects of human experience; ‘hat it dacs not factor inthe relationship ofthe litigants To De Pao, © W ees Hava Unni Pres 181,‘That it ony gives a superficial treatment of the problems and does not ask the larger causalites why legal isues thad arisen inthe first place ‘As William 0. Douglas (1898-1980) wrote: the law is nota series of calculating machines where definitions and answers come tumbling out when the right levers fre pushed." Justice Douglas, himself « redplent of ies miseries and deprvations who as a student warkod on ‘dd job as oraitr,janitr, and chery picker, was quoted to have said: ‘I worked among the very, very poor, the migrant laburers, the Chicanos’ and the LWAW=" who 1 Exwbeing shot a by Ue poliet. saw crucltyand hardness, find my impulse was to bea force in other developments inthe law” Indeed, while the constitution mandates ‘oqual protection of the laws’ this did not prevent 18th century French siist Anatole France fom observing thet: The law in its majectic equality forbids the rich aswell asthe poor to sleep under bridges, to eg inthe streets, and to al bread 1B. LAW AS PROCESS Law may also be rogarded as a procss, the rales boing, merely an aspect of the process. Laws are not just, statutosper s but the whole gamit ofthe life experiences ‘oflawmakers, law enforers, law breakers oF followers as ‘well as lawyers, judges and egal theorists, legal scholar ad that ‘Law is voy like an ieherg; only one-tenth of fits substance appears alove the social surface In the explicit form of docaments, institutions, and professions, while the nine-tonthe af ite substance ee pre eatin eR See ame ie cn eres oa He aay te ease t ‘Roni Pree uote MB Kata pre mrrens | » that supports its visible fagment leads a sub- faquatie existence, living in the habits, atitudes, fttions and aspirations of men A up ae may earache to ny choral, pycoloies emer or Stl nsteaton nay ovoled sch tefl communi, worpioc, eel or ryan. Deepteated Filpinevelos ot Rv tong na los potiipaghapu* oktwap peskoamapagplangdelicedea” and Fre’ help define and gre mening to Flpings Sehaviorn elation thi dealing ith hea IL. COMMON CHARACTERISTICS OF LAW AL OBEDIENCE ‘Theelementof obedience sacommon characteristic types flaw. The degree or freedom to which For inetance, scientific oF “natura” lawsinvolve all things ‘while human lawe are for man alone. The former cannot be violated, hence, the clement of freedom or morality is out of the quection. They are invilable, The law of gravity for example. By entras, the laws of man involve human conduct which may or may not be obeyed: They fare potentially vielale snd their obedience is anchored TretaTorinn, Sak Oni and he Lin of Law, Print Usiversty Pr, 156h 9 ‘hy same rn tat wee wih el pt i ‘amy ai imagen patton earls ttn mp Pipi to rece Cay bck") tie agri ey ae erly ot” makes he Pine rch ott is llewmen to ve ratios erty oer sh epson Lely, iin tenner en ae eventos” "Mannie apr nthe eo hat he pice sald behave poet and watt abies Sip ye meng at wold eae Fy oahaano tm fr “virus psn” whch ee sel nceqna ofome tatoos een mera eeeon manie freedom and free wil, Kant calls this law in the sphere of freedom, GENERALITY ‘The principle of generality sees laws as ‘generlly” rather than ‘particularly’ framed. The rules mandating ars to sicp at a red light or prohibiting speed beyond 2 limit applies to all and without exception. The law ‘would not foeus on particular drivers, driving particular fare under partiular circumstances, The law applies ieregardlogs of the tatus ofthe driver young: ad, famouse unknown, powerfuljobless o the type of car used: topo the-line or rekoty. Under this principle, the lave i the law regardless of particular attendant circumstances. Also, from Une point of view of generality, decisions on 1 Joga question are made in advance ofthe circumstances ‘of the application. This means one knows ‘in advance’ that he would have velated the law if he wil erose at @ 170d light or exceed the maximum speed limits, Or, one is presumed to now in advance a statutory rape happens if ‘0x is committed with agi, say, below 12 ‘The principle of generality is sometimes contrasted with that of particularity. In the later, the pli ofcer for example chooses t2 apply the law depending on particular eieumetanees, Fer example, fining the poor and unknown but exempting the rich and perl trafic (CASE STUDY: [rederick Schauer distinguished the particu. Uariste from the generalatic decision maker" If police offer stops a driver for unsafe driving, the partiealaristie police officer ‘making ‘2 pardicularste devsion whether to summon the diver to appoar in court would take into acount the condition of the road, the amount of traf, the weather, the time of day, the type and condition of, ‘he ear, the experience and previous driving record ‘ ofthe diver, the explanation offered by the drive, and perhaps even the ability ofthe driver to pay the fino.’ its extreme, particularism is about taking cevwrhing ito acount By contrast, a mare general decision-making style would no focus so clotely on particular Ahivere driving particular cars under particu ‘dreumatances, but would rather have made Aecison in advance about an entre category — all Arivers driving all ears under all conditions on ‘moderately large streteh of highway. Whatever rel Aiferences might exit among actual drivers, acta! ‘ars, sctual exnditons, and actual locations woul be suppresied in the servic of making decisions based omlarge categories rather than on exceedingly ‘erro and situation specifi fats" PROMULGATION In Aquinas Treatise on Lave, 2 question was asked ‘whether promulgation is essential to law. He sai itis ‘essential, and refuted the three objections whieh argued ‘that promlgstion isnot essential to law. The objections ralve three prints: a) natural lew which hes the charactor ‘flaw neads no promulgation; b) law's fore affects not ‘nly those to whom the law is directly promulgated but alo these who wore not parties to its promolyation, eg. foreigners in the Philippines aro subject to Philippine penal laws even though they were not present when the Same were promulgated; and )theforeofthe law extends to the fature and binds those unborn at the time the law ras promulgated. Aquinas rpliod that: a) “natural aw is Promulgated” He reasoned that ts ‘promulgation’ ean bo [leaned from the fact that God instilled natural law “into the man's mind” sp that this natural law can be “known, by him naturally” b) those who are net present during the l/s promulgation ae bound to observe the law that they an be notified by others ofthe law after it was “Warsi Behan, The nr of the La, 207 Went Vga Law Re, 27, 204_Le0n,PRosoPHy FOR FHADNOS "AASH STUDY APPROACH promlgnted; and) th “durability of written characters? fngures that laws may be “eontinually promulgated” ven to the future. Aguinas then quotes Isdare (Eiym. ‘3: Hi:10) that “ee aw) is derived from Legere (to read) because tie writen." D. THERULEOF LAW The “rule of law” is an established legal principle whieh posits that whenever alogal issue presents itself, it must be decided by applying the accepted principles ‘law. In so doing, the wil and personal “discretion” of ‘the judge is set aside, and he is mast apply the known principles law according tothe wil ofthe legislator. According to the roport of UN Secrotary-Goneral ‘Kofi Annan to tho UN Security Council, rule of law” is 0 “principle of governance” in which all persin, institutions ‘and entities, publi or private incloding the State itself, fre “sccountable to laws that are: publiely promulgated ually enforced independently adjudicated, and consistent with international human rights orm and Standards Rule of law also requires adherence to the following legal principles: 4. supremacy of law, th rule of law is higher ‘than any person's discrtion or will 2. accountability to the law, ie. one is Liable to be ealled on or to render an account before the law 8. fairness in th application of the law: 4, separation of powers; 5, participation in decision making: Tis, Suma Mel, Tati on La, out Artie, Ded Maura Sear Cama 2000 The Role of Law ard onal itis n Cette Poche Sten Raper ft Sear Gnea = ‘aNetens, New Poe legal certainty; avoidance of arbitrariness; and procedural and legal transparency.” ‘CASE STUDY: Comparison betieen poor and excellent legal systems ‘This is @ hypothetical caso study of two 8 tems. Note thatthe comparison doesnot ony refer {oa country but to eny organization goremed by rales suchas club, assbeation, schoo, oF business crganization Poor Becellent 1, Rules aronot clear, [1 Rules are dear. The rare ambiguous.” | rules are simply and ‘This means cases | clearly written such ane decided ad hoc, | aa there could be orem acasetocase | no doubt what they basa mean. 2. Theruksare not |2. Theres are made rmadeavailableto | known to those thee aected by affected by them them. ‘The lawmakers and administrators made sure every person affected ‘understood the rales. 3. Retroactive laws are | 3. No retroactive lew, ‘used nan abusive | unless for the ben nse to suit the eit ofthe accused penonal whims of | arthove already tells, convicted.Rules cannot be [4 Rules ean be under understood — as ood, tavwhen it bogins, who are orate nt fected, what acts fare covered and the like. [& Rules contradict one| 5. Rules are consistent another snd support one nother © Rules require acts [6 Rulos only require which are dificult |" those affected what frbeyond normal | they can normally ‘compliance, achieve Rules arechanged [7 Rules gonerally sooften — itis remain constant ‘ial wo fllow which one ie the Tate. % Thereisagap [8 The rulesare oni- between the rae formly observed Gaw)assuch and | by the lawmakers, the implementing | department heads, regulations (admin- | regional directors, istration). Toel officials and the police Appellate wteps 9. Appellate steps and unclear. other grievance ‘mechanism is leary spelled out. 30. Penaliyie draconian |10. The penalty — i fand unreasonable,” | commensurate with the offense, cuarree eo ‘ectorseg. agencies andorganizations, atthe international Tevel Its purpose is for nation-states to maintain ‘peaceful and productive relationships among each other International law relies on agreement or consensus from ‘among ite member sates. At prosent, there is neither & ‘world constitution’ nor world legislature’ from which & Binding world law eld be enacted.” If law is a male of eonduet which a community considers as ‘binding upon its members then some {tue that international law i not true law. Thy cite the following reasons: 1. There is no binding law that applies to all 2. There is no “world congress for mankind." 8, There is no “world executive" to enforeeinter- ‘tional Taw incase of velation™ Tegislating laws Tie the Sa th nero Car of ato 13) erst hata now nly cop at wore eration a reroll cnet treatin ery ep ye ts eect enon a rr retin eet B moemten sfc yen ations nd ‘Joker chins ofthe mot hah tlie aioe of heaton Gro rng a tshiary mans eda of (i loot "hie rl 6) went ering rfrne in ca of sn, ne etal err eae yo eet tek pty inte ters ‘Sainal ow Others masa tat meantime and itm! ae (St itr nego oer esr sel mew eto speed ‘Uta eines, ad ests ae paca Pear wna See full die od rice wring wate nthe feldere de "hSarfe tary se, Minn car woe aeeral pene crt tc a rary may ware. E, 1S INTERNATIONAL LAW TRUE LAW? International law is that branch of law that governs ‘relationships between countries and ether multinational sr ccd Nts des mt pote Ae he aeaates ntertion cra Univeral Deon sesamiae meni cunt ‘Gene Sintonvnsone ante tu tnd he gain etn Tu ote. ‘ia gtr uch of neaionl tries cary ote to og an uty national sie tae ON Chater se tat he curt Couns UN may mo tiie ee nel inna hrate a peue Breach of Peae abate of4. law ienottrue law ithe partes are fre to Aisrogad it and if it cannot be enforced, Article (7), otherwise known as the non- imterference elause of the UN. Charter, gives each member sate of the United Nations ‘the right not to be intervened in its domestic ‘affairs. This ie otherwiee called. the “nom intervention” or “nowinteference” clauee of the UN, Charter ‘The proponents who argue that international Jaw is true law argue that 1. Applicability to all countries is not a require tment fora rule tobe considered as law. 2 A world congress and executive are not ‘sential components in the definition of aw. 8 Intornationalenstomary norms and treaties do have binding effect, A eountry that flagrantly violates ite international obligations risk Fetaliaioy action from the community of ‘ations around the world Basie ofenforement: Obedionce of international law by member states is ‘based onthe principle of reciprocity This means nation ‘obeys because it want other nation todo the same, and it want to be seen at a law-abiding’ country by other nations. In practice, however, no sovereign stato ean be forced to obey internatcnal law without its consent or willingness to do wo This is so because there is no International executive, or word pulice free to execute {international decisions, even those ofthe Internaicnal Court of Justice, an agency ofthe United Nations. ‘An exception is found in Chaptar VI of the United Nation Charter which grants the Security Council "Adida B ote UN Charter sae: Rething contin’ in the present (Chara ster the United Nant strene eaters sh se ‘iy hint danse aie of ey seat salle the Mester ‘sul hetero etenent nor be se Charter there all ‘Se prs te pls serene ender ape > ATURE OP LAW coercive power with respect to threats to the ponce, beaches of peace and acts of aggression.» Enforcement may bo done through diplomatic, economic or military actions to enforee international decisions. Chapter VI of the United Nations Charter alse eutinee the means ‘used for peaceful selilement of disputes. These include the use ef good ofces, mediation ara fact-finding (CASE STUDY: Adolf Bichmann case (On May 11, 1960, Ieraei agents kidnapped ‘Argentina citizen Adolf Eichmann” from Argentine territory. Israel's act was unilateral, and fled to ‘comply with international or national (Argentine) ‘due proces laws, A cle vnlation of international law, Hoparked protests frommany states. Although Israel apologized to Argentina, it insisted that ich mann must face charges for crimes aginst human ity fr his role in administrating the Dachau on fentration camp and in managing the deportation ofthe Jews to the extarmination camps. For Israel, SN Ghar, Chane Yen wih ast Treo ene Bach sepecent ceron A he ya mi ‘Saberecommendatonor dco wht sires il be hk nese wih Reto at ond kw manner are nrninl pac tn oa hr teers to even to spgeretion thr tinh ean Cun myer ‘Sige cmendins or sng pn meaner vi tira ile ‘Bier upow te prt concere oy wi mh eral mesa Shacacnany eae Such prorncel mere sali rdw rece Fad cites open ot rae conse Toca Coe chal sytem Sines reget mas ate Srsdy Cot ny tee wht arrest rring th eo re oe re SeeSeroctel os econ ted itany cal pe the Mare ‘Gaiden ccm Tes mv hos oi ‘pan feo an cal er fral wirie d ‘Slaw dcoumuntsine te ne ston of ete oboe rw Shedd ‘eBoni Cunl er hat ears pd arm Are wb SSE ays Caron satan rt srl per sa Sctm ay ino esto aa and tc operations ys, ited err ef meni th ated atsBichmannis answerable toa higher moral law in his tctive role in the Holocaust I tal ight to violate International and Argentine national laws in order to anrwer toa higher law? Ie iall right to take any Jaw fr Ghat matter in one's hands? ‘Should Israel have refrained from kidnapping ‘Eichmann, or followed Argentine and Intemational legal processes? LAW WITHIN RELIGIOUS DOGMA AND TRADITION A. CODEOF HAMMURABI Hammurabi, King of Babylon ¢. 1792 B.C. who ‘united his country and tok it to the height of ts power, Claimed to have received code of laws directly from Sharnas, the ehief ofthe gods. The Code of Hammurabi ‘was dissovered by French archeologists fm 1901. Its now pert of the Lousre Musou collection in Pars, The Cade Contsins 282 sections and is considered a landmark in the early edification of laws. Te covers diverse areas of law as trade, family, employment, criminal justice (some ‘punishments of which are severe), judicial procedure and ‘anticipates more moder legal concepts suchas frustration of contractx ‘The Code was based on the principle that Justice dispensed with by judges and rulers should not ‘be whimsical, arbitrary oF persoual. Rather, notions of jstee should abide within defined and well formulated rules fellowing adherence to truth, equitable principles fand retribution. Sec. 48 for instanes foreshadows the tsneept of tartultous event, one ofthe basic principles in contrac. La. ‘Examples of some lawe in the Code of Hammurabi: 1, Ira man has borne false witness in teal or thas not estsblshed the statement that he has ‘made, i that ease be a capital tial, that man ‘hall be put to death, (Se. 3) 2, Ifa man has incured a debt and «storm has ‘ooded his field or carried asray the crop, oF the carn has not grown beeause of drought, ‘hat yoarhe shall not pay his creditor Further, the shall post-date his bond and shall not pay intone for that year (See 48) 8. Ifa man bas been taken captive, and there ‘was maintenance in his house, but his wife has Ten hor house and entered into azother man’s hher body, and has entered into the house of ‘another, that woman shall be prosecuted and ‘hall be drowned. (See. 183) 4. Ifa man\as been taken captive, but there ws ft maintenance in his house and his wife has ‘cntered int the house of another, that woman hes no lame, (See. 134) 5. Ifa son a struck his father, his hands shall becutaff 6 Ia builder has built « house for a man, and Jhas not made his work sound, and the house Ihe built hae fallen, and eauced the dest of its ‘owner, that builder shall be put to death» 1B. JOHN CALVIN John Calvin's rigorous thooeracy or government by prose 1540 i 8 more contemporary example of ‘complete subordination of man and his laws to what it perceived by the group as the will of Ged, fn this view nan was under the sovereignty of God. The citizens of the state were called upon in groups of ten to swear to fs confession of faith inthe form of 21 artes of belief ‘drawn upby no other than Calvin himsalf. In this system Taw wat understood as ‘divine will’ as understood by Calvin himself, or by the legislator. The constittion land laws of Geneva were recodifed inthe light of thia boli Punishment for non-aeceptance of basic doctrines ‘was death et the stake, Por hi opposition to this type of ‘theocratic law, Spanish theologian Michael Servetus was burned at ake SEW de oh, atin end Aunrian Lave Cnr end Ltrs ‘abeary ef ant Lape Chats Sar Be New Tr, 14c. INQUISITION ‘The Inquisition is another extmple of the subor- dination of slate law ‘under religious ‘dogma, The Tnquisitien tribunal was established by the church jn 1285 to suppress heresy or dissenting views. Ia the beginning, excommunication was used to. punish apostates. Brentually, fines, flogging, imprisonment land death by burning were imposed. The sentenco as pronounced Ina religous ceremony ealled the autoda fe (Portuguese for ‘stot faith’) where a procesion, aleran mass and sermon preceded the sentencing of the heretics before they were handod to the secular authorities for Punishment The Inquisition was active in France, Italy, Spain and the Holy Roman Brpire. Later it was extended tothe Ameries,Istrials were dane in secret, and torture was usually emploed. Ocal, the Inquisition isa tribunal of the church enforeing chureh law and dogs. Subordinate to church Tar was tate law. According to Weeramantey: ‘There was no matter on which the law of the state dared to run counter to the will of God as embodied in the teachings of the ehurch. So strong ‘the theological thinking at that time that it sen argued that paganism justified conquest, {tarture and the imposition by law ns a requirement of adherence to Christianity. Spain's conquest of ‘many Central and South American peoples, brought, this question into focus, and there was no dearth of jurstie support for tho view that such persons, not boing Christians, had no rights. However, the Dominican, Francis de Vitoria (483-1548) procaimed the universal vaiity of human rights forall peples in adocument that hasbeen deseribed as ‘one of the greatest human rights documents ofall Gime’ That such a treatice should have been ‘necessary i an eloquent comment on the strong of the eppnite view." Fiery, © OED An Dotti to Law, Bate Py Lind, LAW AND RELIGION lsh ara Sir Henry Maine in Ancient Law, published Jn 1861, noted the close counecton between law and religion fnack from primitive soieties. Maine observed that is no system of recorded law which from its inception is fompletely seperate from religion From thetime algal system {born roligion has always beon ati side. Embryonic law has flvays boen entangled with religious rituals and obvervances, A. JEWISH LAW 1. Torah Much of Jewish law isan offshoot of the Ten Commandments. Later, tho Jews included the ‘Torah and considered i their writen constitution, ‘or the Book? which contains Uheir code of laws. The ‘Jewish Torah, called Pentateuch by the Christians fare the fist five books of the Old Testament. They fre ascribed to Moses, The scrolls on which tho ‘Torah i handwritten in Hebrew aro kept in an are in every synagogue, are considered sacred by the Jews. The Torah begins with the creation of the ‘Universe tothe death of Moset. Tt also Includes the ‘Jewish peoples covenant withthe one God and rules Torreligous and socal conduct, among them the Ten Coramsndments The Jews believe that by observing the guillines laid dawn in the Torah, they fall ther pert ofthe covenant with God. ‘The commentaries on the Torah were written by the Soferim or 8 group of interprets who helped to keep Jewish law adequate for succeeding fteneratons, and to the new conditions of life to Iwhich they ived. ‘The Soferim preserved to the ‘Jewish people the contra ae of the Book in Hebrew ‘orion, in epite conquest hy other mations such ‘the Gress and Romans. The intarpretersby making ‘Tesvshiaw applicable to changing conditions helped ‘defend Hebrew culture from being absorbed and ‘obliterated into other cltures According to Christopher Weeramantry onthe rule of interpretation in religious law:‘The interpreters, as in so many other systems, se to work upon sacred seripture and despite the conquest of Palestine by the Greeks, were able to Keep the book adequate to the ‘ew conditions of life by thei intarprctations, ‘This cary schol of interpreters, the Soferim, Ihlped to continue the centrality ofthe Bo’ to Jewish life and to insulate the Jews from absorption in Greek culture We have pointed out time and sgain the neod {for laxity in logal system iit isto be adequate ‘0 changing times. However, even intorpretatior may sometimes be Inadequate and a point may be ‘eathed when reform of the lor tel s necessary ‘With a sacred law this cannot be done. Jewish la ‘adopted what might be desribed as an intermediate course. Ieproduced the Mishnah= 2 Mishnah ‘The Mishna or Mishnak is a collection of commentaries on writtan Jewish Taw consisting | f dicanions among the Rabbi handed dove | ‘rally fom AD. 70 to until about AD. 200, Whi the Mishna comments on the Torah, the Gemare ‘omaments on the Mishns. | "The Mishna and the Gemara (technically the ‘main body ofrabbinieal debate onthe interpretations ft the Mishna) form the Talmud, The Talmud can be divided into Uhe halakha which are logal and ritual matters and the haggedah which are ethical ‘theological and folklorist matters. | 8 Responsa ‘The Responsa or replies is a new genre of Jevwish jurist writing afer the Telmud. The Bee oma are juridical guidance or opinions given by Tr nh ie niece mil ade therabbison day today details of Jewish life. These swore compiled by Jews fom al over the world and ‘ow frm several thousands of volumes. HUMAN RIGHTS IN JEWISH LAW David F. Polish in ‘Haman Rights and Jewish ‘Thought argued that human concerns have always boon ‘entra nthe Josh tration: ‘The recognition ofthe importance ofhumen ie tthe same time both imtgral to the Jewish faith system and the first and necessary precondition faboliefia human rights. The notion of human rights flows as natural extension of the Genesis account ofthe creation of humanity.” “The Genesis story airs both the soversignty of God and the sacrodnessof the individual, for iti single person that is made inthe image of God. Thus the rabbis Teach that killing a person is tantamount to diminishing the reality of God's own sel-™ lish notes that the three major festivals ofthe year — Pesach (Passover) Sucot (Tabernacles) land Shavaot (Pentecost — commemorate aspects of the Exodus from Faye, which is the basis for Jewish fafizmation ofthe human right to political liberty. Purim, the eammemoration of the events of the Book of Este, ‘early ffrma the rights of the minority pooples, as does TFT D162 fae ond Han Reh i um igh eis ‘raion, New Yn: PP Pres 40, “Set quid in rer, CIO) Fh Human Right: Supt in Reo geen fre Oba Se Henan ei Gn res ‘Passer, eld Posh in Joan, a eyeing ferticmmeno, rang th ns orm Bp ante poing wey Ano ‘lab eons hae sl atin ters on were Te eaters Suea Hater ine eh stale a foe 122 Tsk Goyer Osuber the et oth fe deviah ya) ‘sez te ling tarantino ema Als ‘ebelen at ano bh with el obese. “Rated af Stl ee th ayer the Pacer insertion foe gag ofthe Ten Comanments Mesos‘the Torah ints demand tha the rights ofthe stranger be protected Noreover, on the afternoon o every Ye Kippur (Day of Atonement)" _ Jews read a recounting of those who diod Yor the sanctification of God's Name’ to live ile of fidelity to Torah, even when that was proscribed Iprohibited) by tho Roman occupiers. Martyrdom for acting on higher vals as been considered sitive virtue through our history." ISLAMIC LAW Ilamie law or tho Shasta ie blioved by Muslims to he of divine origin, and is one of the worlds great legal systems. Much’ of the Shara is derived ftom the Koran (iterally, ‘he reading” o ‘the recitation ‘The Koren supplied che basic tenets and principles of Islamic Law bist not the detail Thus, it wa left to ter interpreters ofthe Koran ta build a comprehensive and detailed juristc systom. The beginnings of Koranic Interpretation began in the Umayyad pered (651.750), ‘The Umayyad (altematively spelled Omayyad) dynasty reiged as Caliph (vie and religious leaders of Ilan) ‘The Caliph rule spread as far as Cordoba, Spain in the 11th century. W. Montgomery Watt traced the growth of Islamic interpretation in"The Majesty tha was felon? ‘The central distpline of lslamie higher edu cation, once that came into being, has always been Jurispridence; and in doaling with the Umayyad riod it is thos helpful to consider frat thoce who ‘may be termed jurists, even though ther disepline ‘was till inan embryoni stage... each of the main cities there were one or more groupe fsuchmen, who ‘would meet for discussion in moaques or courtyards ‘or private houses. The aim oftheir discus bre to dover in rspect ofthe new proble were onstantly arising, which eourse of action ws {in acowrdance with Quranic principles. In each enter, the foal group sually formed a common ‘mind on mast points and go constituted what have ‘een called ‘the ancient schols of law’ Frequently there was also a minority group which disagreed swith the majority. 22 ‘A first the questions of interpretation were doubtless inciuded in the diseussion of practical ‘problens. Gradually, however, it came to be seen that ffir, the interpretation or exegesls of the Quran, was discipline on its own in which a man could specialize by devoting most of his time to it. ‘Tofsirhad many different aspects One could remember what Muhammad or ‘someone close to him had seid about the interpre- tation of particular verse. One eould compare phrases in different verses. One could quote verses of pre-Islamic poetry to justi an intorpretaion of fan dbcure word, One could consider from a gram- ‘natiea! standpoint different ways of understanding the construction ofa verse, The sores tld allusive- lyin the Quran could be filled oat from Jewish or Christian or traditional Arab sources, or somtimes, 1 would seem, from sheer imagination. One eould tay to discover on what particular occasion & pase Sage had been revesled and to what specif person or group it referred: "The Hadith which is a collection of the teachings ff Muhammad and the stories of His life is regarded bby Mualims ax their guide to living second only to the ‘Koran, The teachings were at fret transmitted orally, but ‘this led toa prliferation of Hadithe the crigin of which i ay ef tet Yor Kp iS ly yh th tenth, dye Tr tener aber tine evar a ste, eee nd caning mi edge Tn Dp Petes at lo Swi Row Yr Oh Hanh eo D Pai sere hocame in doubt. Scholars like Muhammad el-Bokhari (G10- 870) compiled those beloved to be authenti, and Siete Wat, The Matto wo lam: The amd We noo, bn Mini Now Yn, 974207895, usa by Weer rethe cilections form the Hadith used today. Under the Shar lw isa, or retribution, allows a family to exact equal punishment on an aeeused; diya’ or blood money is payable toa deed person's family as compensation. From th lattr part of the 19t8 century. the role of the Sharia courte in the majority of Musi ‘countries began to be taken over by secular courts, and the Sharia to be largely restricted to family Te, Medications of Kerunic maxims have rested from the introduction of Western law for example, ‘compensation can now be claimed. only after ‘conviction by aeriminal court.” HUMAN RIGHTS IN ISLAMIC LAW Jn Islamic law, human rights are seen as ‘rights ‘which all human beings ought to have Those rights are “Go deeply rooted in our humannees thet their denial or violation is tantamount to a negation or degradation of ‘that which makes us human.» These rights are right, because they are from Ged. They aro to be respected a5 ‘matior of religous obligation, that is, asa matter of one’ faith in God." ‘The fllowing is Khan's translation ofthe Farewell ‘Sormen of the Prophet Mulnammad at Arafat It encap- ‘sulates the Prophets teachings and eliminated barriers fof race and clase Note that there ave slightly diferent ‘versions ofthe sermon in other translations Ye people! Licten unto my words...Your lives ‘nd property ere sacred and inviolable among one ‘another even as this day and this month are sacred to Al, until 30 appear before the Lard and (remember) {ye hall appear before your Lord Who ell demand Fie Tainan Shack End 500) Halon Ping Ltd, “ear, 080) ap. “San: Astro am rin ob Mahar Ae, Labo, Pak from you an account of your actions. sox Usury is forbidden, The debtor will return the prineipal. So ‘The aristocracy of yore trampled under my feat. The Arab has no superiarity over the non-Arab land the non-Arab hes no superiority over the Arab. Al are children of Adam and Adam was made of ‘arth variant ofthelast sentenceis found in MU Akbar’s All of you come from Adam, and Adam is of unt Indeed, the Arab is not superior to the non- ‘Arab, and the non-Arab is net superior tothe Arab. [Nor ste far-skinnod superior tothe dark-skinned nor the darkeskinned superior to the faipskinned: “superiority comes from plely and the noblest arnong {you is te most pone” ©. CANONLAW ‘Canon aw is body ofaws enacted by eelesiastieal authority for the administration of the Reman Catholic hurch, In 1230, Gregory IX eystematized and codified ‘arious church laws: Together with additions by Boniface ‘VIE and Clement V, Canon law represents the laws of the Roman Cathole hurch under the title Corpus Juris Canonic uni the promulgation of Use present Codex Juris Canonict by Benediet XV in 1917. In 1983, a new canon law code was ised by Pope Joba Paul Il reducing the oflenses carving automatic exeonmuniation, extending ‘the grounds or annulment of marrage, removing the bar ‘onmarriage with non-Catholics,and banning trade union ‘nd other palitical activity by pris. ‘Canon is derived fram the Greck word meaning ‘rule? In eanly Christianity, bishops of various districts would meet in cove and issue ‘eanons' or ‘rales! When Emperor Constantine embraced Christianity, he ‘assembled the bishops in a Counel in Niaoa in $25 A.D, ‘which assembly produced the Nicene Cree. SR A 1). he Orton of Muhanad, revs) MabeCanon law contributed important emcepts to secular law which are sil sed upto the present. These fre principles on equity, goed faith and morality in sexual and marital relationships, Weoramantry sai ‘Through tis long history the canon lave thas influenced secular law at many points, The shurchmen who presided over many courts, both religous and secular, were deeply influenced, if ‘hot dominated, by ite prieples. In England, the Charistian couris were the earliest courts. All law abiding citizens were expecid to be Christians fand thus subject tothe laws ofthe chureh. Almost I matters bearing upon sexual morality were txclusvely matters for the chureh. Fornication, fdultery, incest, and bigamy were ecclesiastical fences and the secular courts kept thelr hands of thom. Testamentary jurisdiction was a church Jurisdiction and’ cancel prohibitions on usury Tong dominated the thinking of secular English judges. The canon law concept of good faith made ‘great impact on the development of the English law ofcontract. Phe illustration par excellence of the Influence of canon law upon secular law comes from ‘matrimonial law where the canonical dectrine that the husband and wife were one fesh and Uhat the ‘wife was aubjee tothe husband, became the basis of ‘he Gul law I equity, the Chancellors, churchmen for generations, sought to bring into the secular aw the principles they had imbibed in the eanon law, fandin particular the requirement f conscience and ood faith HUMAN RIGHTS IN CANON LAW ‘The concept of human dignity is doeply rooted in Canon Taw tradition. Ite rote extend back to Avital, St, Thomas Aquinas, St. Augustine, and the Bible. One istingushing feature of human righte under Canon lave i its distrust of individualism and its emphasis on the community. Human dignity is seen in the context curren x ATUREOF LAW of the community. The rights which ‘protect human Aignity’ are the ‘rights of persons in community.’ They tare ‘nether exclusively the rights of individual against the commurity nor are they the rights of the community against tho individ" Pope Leo XII (1878-1903) affirmed in his 1891 fencyelial Rerum Novarum that ‘Man precedes the ‘State; and that human dignity isthe standard of the Jaw. The eneyclial affirms the following as conditions of Jnuman dignity: 9) rights to adequate food, clothing and shelter; bight toa Just wage; ©) right to use one's earned wages to purchase and own property; and d) to form \workersatsciations to defend just claims, Each of these Fights has a corresponding dat Employers arw under an obligation to recognine land protect each of those rights, The encyclical, however, ie nt content with leaving the regnition of these rights to the good will of the employers. Workers ave the further right to organize sssncatons or unions to defend thei just esis. ‘This is a specie orm of a more general right of association which belongs to all human persons as both selfdetermining and social beings.© ‘The stato has tho obligation to protect the common ood which i the ‘mutual respect of the rights! and the ‘Tlfitiment f duties by all citizens.’ The state also has the ‘special ebigatio to defend the rights of the poor and powerless ™ In his 1961 encyclical Mater ef Magistra, Pope ‘John XXIII (1958 — 1969), stated that human dignity Is Aefined more in social terms, that i, i i possible cnly within a ‘community of morally responsible eitizons In his widely acelaimed eneyelical Pacem in Terris (1963), Sern Nee Bolo sa cee Rp ad Dat (Capita und Labor, no 7 = —_—s “hh. pre.‘he affirmed thatthe protection of human rights was the basis for woed peace ‘Any human sacety, iit isto be well-ordered and productive, must lay down a8 a foundation this principle, namely, that every human boing person, that is, his nature is endowed with Intelligence and free will. Indoed, precisely because hes @porson, he has rights and ebligatios flowing iret and simultanevusly from hie very nature ‘And these rights are universal and insole 50 they cannot in any way be surrendered© Tx 1965, during the Inst session of the Second Vatican Council, several documents on human rights were teloased, among them the Pastoral Constitution {on the Chureh in the Modern World (Gauum et Spe, ‘which affirms that human rights isa necessary condition for human dignity ‘Thereisa growing awareness ofthe exalted dignity properto ichuman person, sineehestandsabove ll ‘things, and his rights and duties are enivereal and inviolable. Therefore, these must be made available ‘wall men overything necessary fo leading aie truly Jnaman, such as feed, clothing, and shelter; the right ‘tw chowoe a state of life freely and to found a family, the right 10 education, to employment, to a good reputation, to respec, to appropriate information, to ‘activity in acord with the upright norm of ones on conscience, 10 protetion of privacy and to rightfil freedom in matters religious ton ‘CASE STUDIES: INTERSECTION OF LAW AND RELIGION JRANSIT SINGH Ranjit Singh (1801 — 1839), a member of the ‘Sikh mligion, became absolute King ~ Maharajah Paco Fe, 6 Enel of Job XX ox Wor Pence np renin Phe Copel Pond Sut aa Sal Machin te Pipe ‘Sim Marta, Oe, 70m "Gua ef perm 26 nro, The Gp of oe tie, 264 of Puxiab empiro. In spite his absolute power, he didnot venture’ to contravene the ancient rules of Hinduism, The respect for the sanctity Gf the cow and other long entronched Hind beliefs were maintained and respected under Sikh rule. Religious tolerance was both practiced fand sanctioned by law. Christions, Hindus and ‘Muslims were given the opportunity to become administrators and riso to positions of authority. ‘Humanity indood, or rather tendornese for life characterized his character. KING Davi ‘King David, the most poverful man in Israel, was not Beyond the sacred lave. When he indulged in-an adulirous relatioasip with Bathsboba and hhad her husband killed, Prophet Nathan rebukod ‘King David for violating the law: ‘Nathan said to Davi, You ae the man!” ‘hus, says The Lord, the God of Israel, T anointed you king over Iaracl, and I delivered {you out of the hand of Saul and I gave you ‘our masters hous, and your masters wives. Into your bosom, and gave Israel and of Judah; and if this were too litte, {would add to you aa much more. Why have ‘you despised the word of The Lard, todo what is evil in His sight? You have smitten Uriah the Hittive with the sword, and have taken his wife to be your wife, and have slain him ‘with the sword ofthe Ammonites, 2 Samuel 1219 RSV). DONOGHUE V. STEVENSON ‘the Poisiy anil or snail in the bale ease, is one of the most famous eases in British legal history tise foundation casein tort law. In tho decison, Lord Atkin extended the definition of “neighbor SDs Torrie . Steven, 1908] AC 62, 18525‘NcaSE STUDY APPROACH tay basing it om the Christian principle of loving Your neighbor’ (James 2:8 and the Parable of the Good Samaritan) to apply to the circle of ‘persone ta whom duty is owed In this case by the iringer beer manufacturer even though no prior ‘contractual relationship existed between him and the consumer ‘The facts of the case are as follows: On Avguat 26, 1928, May Donoghue, nee MAlister, boarded a tram to Glasgow fora 30-minute journey to Paisley. In Paisley, she and a friend went to Wiellmeadow Café-snd ordered ice cream drink. ‘Tho owner brought in the order and poured part of an opaque bottle of ginger beer into a tumbler Containing ee cream. After Donoghue drank, they discovered remains of ¢ snall in a state of ‘decomposition dropped out ofthe bottle. Donoghue buffered stomach pain due to gastroenteritis and twat in a state of sovere sock: On April 9, 1029 Donaghue sued David. Stevenson, the acrated water manufactarer in Paisley where she claimed 500 British Pounds as damages for injuries. The rmanafacturer was held liable for damages since he ‘wed the duty ofearetothe ultimate cansumer. The decisions reasoning Teaned heavily on Christian ‘notions of duty owed to one's neighbor: “The rule that you ae to love your neigh- bbourbecomesin law, you mast nt injure your neighbour: and the lawyer's question, Who is iy neighbour? receives a restricted reply. You Inst take reasonable care to avoid acts ot ‘omissions which you can reasonably foresee ‘would be likly to injure your neighbour. Who then it my neighbour? The answer seems to ‘be ~ persone who are so directly affected by sy act that T ought reasonably to have them in contemplation as being aflected when Tam directing my mind to the acts or omissions ‘which ae alld in question Lawas custow Custom, from Latin consuescere ‘to be accustomed! i fs society's habitually procticed conduct or prefirences. 1 {a one ef the main regulatory influences forthe conduct of iciety’s members. Custom ean eame fom a groups elective fxperience, habit, imitation, myths, religious practices. In time they become settled and interalized within the groups tnscioutness. They are abeyed not primarily due to the fear ff punishment bat becouse custom represents the groups frnsensas how igs are approached and done. Custom, fs conduct regulator, precede a formally leisated law, and ‘any principles in law had their origin in custom. Crimin Inve grew ont of customary norm that certain behaviors were ‘unaceepeable, and therefore punishable by the soeety. Theft ‘of eoconats in countries like the Philippines where the eacont {Industry i vital tthe economy carries with ita higher penalty than theft of notesconuts. In some societie the Killing of ‘coms (considered sacred) for ford is unlawful. The probiition ‘against bigamy, o incest have their origins in tial customs ‘So with parental authority, guardianship and the patio of ‘the wife aking her husband's name." A SAVIGNYS DOCTRINE OF THE HISTORICAL ‘SCHOOL Radolf von Savigny (1779-661), a German jarist, regarded law as a flection of a. society history calture, warts and sprit. To him, law marely reflects 8 county's elhageint” Savigny is one of the proponents ‘ofthe ‘doctrine ofthe hstarical schoo” This isthe view ‘hat lave is but a erytalization of the groups national for tribal charter. Law is written, and is updated, by ‘he evolutionary process ofthe group. Law is not en ‘arbitrary wil or imposition ofjust any law maker; rather iti ike language which eaptures the uniqueness ofthe ‘culture which wilizes them. Forhin each country has its ‘istnet personality and institutions which ae shaped by ite history aad traditions. TH (Le nthe Ming, Of Unies Pre, ihe.___Inbisessay ‘On the Vocation of Our Age for Logis tion and Jurispredence, he strongly opposed proposals {or the introduction of law styled on France's Napoleonic Code. Savigny also rejected natural law theories and “argued that Uy were Betitiows andunproved pectlations ‘shout eecal contracts and the tate of nature. "The criticisms on Savigny’s doctrine may be summa: rized as allows 1, Law is sometimes a reflection of the wil of small ‘bat politially end economically influential upper lass Law des nt alas roprosen th ealective — ‘coment or historical ~ sentiment of the bulk of the Population, Its common knowledge tht legislators fm many countries comprise the numerialy tiny, Iighly educated and Snancally powerful rdme a crime of that society, Acoantry may have multiple, divers and eonfcting ‘eal customs. Tt may not be poesl ‘truly homogenized legislation for the whole country ‘without sacrificing the needs and interests of other Ininortes. 3. German lave, even at the time of Savigny, was ‘heavily influnced by Roman law. The adoption of Roman legal concepts by Germany does not make ‘German laws loss German, 4, Japan's American style constitution imposed on the ‘ountry after the war is generally accepted by the ‘Japanese people. While a small number oppase't an Inctrieal or cultural grounds there i no indication thatthe Japanese constitution wil be replaced any time in the near future, Iti worthy 40 note that ‘Japan's baie civil law is Gorman in origin EHRLICH’S SOCIOLOGICAL APPROACH INTO ‘THE NATURE OF LAW For Bugon Ehrich, founder of the sociology of Jaw, the center of lage! development was not in law or jurisprudence per se but in soeiety. He coined the term ‘Living law, and believed that family, group bond, custom and religion produce internalized rules in a person as ‘inviolable’ as any law. An oxample would be queuing belore the lek in buying ship ar elnema tckots. There ig no law or ordinance mandating poople to queue, yet they dot, This s sometimes called interalized law’~ the Jaking of law asi is lived and felt — and is within the realist shoo! of jurisprudence, Fhrlich sid ‘The scilogy of aw then must begin with the ascertainment of the ving law. Te attention wil be directed primarily othe concrete, not the abstract. tis ony the concrote that can be observed. What ‘tho anatomist places tinder the microscope is not Ihumantieruein the abatrct but a specific tissue ofa specific human being; the physiologist ikewise does not study the funetion of the iver of marnmals inthe ahstract, but thoce of specie mammal. Only when the has completed the observation of the concrete docs ho ask whether its universally valid, and this fact, ton, he endeavours to establish by means of a series of concrete observations, for which he has to find specie methoda. The same may be said of the {investigator of lave. He must first conecrn himself wwith conerete usages, relations of domination, Tegal raltions, contracts, articles of assodation, dlisosiion by lat will and testament..." For Bhrich, law has richer and wider definition than that fond within statutes or ordinances. And iis ‘ot just legislators whomake laws. Customs, social habits, ractizos and policies in associations and communities Tikewise createlawe, what he called living law ‘Te living law ie the law which dominates life itself even though it has not een posited in legal propositions, The source af our knowledge of this Tari ist, the modern logal document; secondly, direct sbeervalion of life, of commerce, of eastams land usages and ofall atoeations, not only those ‘thatthe law has recognized but aloof those tat it thas overloked and passod by, indeed even of those that thas disapproved. RH inn Paani ft Sal ofa, WL MaThis means that Inn’ ‘roots go way beyond the black-letter logislative enactments it take their origins from the smallest segments af sccety long beore they hecome oli law. Living law is what Lauren Edelman, etal, reer to a4 ‘subtle and powerful process through ‘which institutionalized organizational” practices and tructures influence judicial conceptions of legality and éomplianeo."Ths ‘Ongnieational structures such as grievance proce- ‘dures, anti-harassment policies, evaluation proce ‘dures, and formal hiring procedires become a symn- bolie indicia of compliance with evil rights law. they become increasingly institusionslized, judges hogia to use thelr presence or aboence in evaluating whether or not sn organization discriminated. Uli imately, theve structures becime so claeely associat ‘ed with rationality and Tarness that judges become Tess likely to scrutinize whether they in fact oper fate in a manner that promotes non-diseriminalary treatment Many court practices for example now commonly accepted as logel had their origina in long-standing Sockets) practices. Among these are ples-bargaining, the ries of summary procedure, and compulsory resort to. modiation before formal trial. In fact, long. before mediation was formally ‘annexed’ to court procedure, it wns already practied by Bureau of Labor ofa i ‘oncllating labor-management iasue, (CASE STUDY: The Katarungang Pambaran- aay Among the recognised ways to resolve disputes ‘among indigenous Filipinos was mediation. ‘This ‘a an established community practice long before ‘the Spaniards same to the Philippines. Setement ‘ofthe disputing parties done by the ator tribal Toador" while minor disputes are "vetted without NATURE OF LAW the datu through pamalas or offering to a dicata (goddess) or else through the payment of managad ‘which is the exchange of goods between the two par ‘Hes conning reparation of damage or harm done’ ‘The practice was anchored on the concept of peck Citeraly, the eggs or gonads ofa fish) where ‘fail heads (hamattoahany" or other relatives who ‘com ‘mand respect and are known for their high sense of {aleneas’ ere tapped as yo between’ and feelers” The ‘rune of elders ofthe community may also be en ‘gaged as mediators, This eoune may be composed ‘of religious leaders, imam ficils of the barangay ‘or other respected or prominent persons ‘The current afcial Katarungang Pambaran- ‘gay syste is bated upon these time-honored tra- titions of amicably setting disputes among family land barangay members without court involvement. On January 27, 1978, Philippine President Ferdi- ‘mand E, Mareot created, trough Presidential De- free 1203, 4 Presidential Commission with Chief ‘Tutice Fred Ruiz Castro as Chairman. The Com- Iminsion was changed with the responsibility of nst- tating a dispute resolution system, at the frangay Tevel which didnot involve the courts. Chief Justice Casto, in tur, isoued Administrative Order No, 22 fappainting the chairman and members of the tech- ical committee, who were tasked: (1) to study and ormulate a system or aystems of resolving disputes among fumnily and borangey members, as well as ‘among persons belonging to different barangays at the barangay level without the intervention of law- yore and the courts (2) to determine the diferent ‘Categories of disputes that may be settled under the System or aystems; and (3) to formulate and recom ‘mend policies, rues and regulations, and procedural {guidelines that wil be followed in the settlement of Such disputes, The technical committee approved fand submitted the final draft to the president. On ‘Jane 11,1978, President Marcos signed the innova- Oi Dara, A Loon om lan Conflict Relation ithe Pines ice proposal ine law ox Prosidental Decree 1508, ‘aus thas anconndbpmaunstooeing ararca, ano ox ENO. therwise known asthe Kotarungang Pembarangny law The chief justice said thet in the Philippines, ‘PD. 1608 will play a roe of histori proportions in the sdminintration of justice.” Since then, PD. 1608, haa been amended by Republic Act 7160, otherwise Known as the Local Government Code ofthe Phil- opines, but the intent and original concept as en- ‘Sioned under P-D. 1508 remains essentially the Ivied the law establishing the Katarungang Pambarangoy system doesnot claim to introduce & new eoncept of diepate settlement in the Philippines. Instead, it recogeiaes and formalizes the tradition of ‘illage-centeed depute resolution. The avowed par- pose, expresly stated in the law ite, aims: (to Promote the speedy administration of juste; 2) to [implement the constitutional mandate to preserve tnd gevelop Filipino eultare; and (3) to strengthen ‘he family a base soa institution. "The prelimi- rary slatement ofthe law's intent laments the indis- Criminal fig of eases ia the courts of justice nd Now this has contributed hesvly and uajustifialy to the congestion of court dockets, effectively cas- ing the deterioration of the quality of justice in the ‘county, Ie is thus the express intent of the law to help relieve the courts of such crowded dockets, and to inritationalize an already long-practioed aystom ‘amicably settling dlsputes atthe barangay level Siem On, Wal 3 Yan, W 2008: Piipyine Community Mode tim Ko nae Dp Reon CHAPTER 3 ENDS AND EFFECTS OF LAW FULL DEVELOPMENT OF THE HUMAN PERSONALITY “We are in Bondage to the Law so that we might be free” — Marcus Tullius Cicero ‘Since ancient times people wondered whether laws are mere rules that permit or probit, roward or punish behaviors. They (nked what aretheendsoe the deeper mission of laws. Both Aristotle Mma Aquinas asked this question. Both believed that Laws make ran Hee nd that itis the laws mission to enable the human person tehieve his fullest development. A. ARISTOTLE, “Aristotle's slution was to strengthen law, nd make it tho regalator of human conduct, He proposes to make wr etuble enough to withstand the fickle passions of the peopl, including that ofthe ruler who must subst Mawalfo the lew, Aristotle proposes the adoption of ie*ainotitation fram where all ether Laws ofthe land Si be measured. The citiens will be forewarned of Tee Legtimate and illegitimate courses of action. This Wray eity is safeguarded from the accidental factors HSijpeernace suen as human whims, eaprices and ‘itterences in personality style ofits leaders, Like Plato, Aristotle regards law as siming for the eoraman advantage” of all He says we call those acts “Jost tat tend to produce and preserve happiness..or Gee Mitat soety™ The law commands some act and Wea noche hie, WA, 18.‘ACASH STUDY APPROAGH forbid other The ighy-fmed law docs this ighly adhe "hal consvedone la well™ A ghee lw bdsm of of splot virtue tha i to sed wt oly fo nest fo nes neighbors Ast tae som beube "many men cer me in thir own ata, bot notin Untreated Aigo” Obedience aa god lw isan ceca of Complete vita" ates led Suse vif lin Ara as tat oan, cl nima” yt on cul spo aa within the matrix fsa Aral es ta foing thragh cial evltion fo fan cmt S chy, the high pla! wrannton os in his litine The ga oe sata wth Past produce pope who Se pr pons end aa In Att’ tatoe Poise (Polis, men are pata ima ail pti at ature to congregate in eoupe anda a {he gal ofthe ealetve add by palit) ste see ‘tha of the inal (ld by etn acing ‘ly, ling an bape, Ate ais inonia, which ie Grek fr nal speita selling” o “happinesn” Te comes fom au sel od and damon, aiid “nner res gen? Hdaimonia ts Arisotles word br the "hopes attained when lof nSndviduat tently fr a Fatlonal ie reaied othe umes end the nial en FEA ha ide te at "ema ee sertcuretner tig tne saree tmn De Soa ae Alcon ler ort enh oO pn emp ann "Ait des ttre eng avn “wn ema a i ‘tg ction a atin A beige rake ef ante ele wo a et epng rangefgndas hepa goes ty snes od untramentde owt of mast nme a pected at i Sec emiramert be hom ae soy ont Acs estate nat and suai rm ar pare _Bvns AND EEVBCTS OF LAW fully expresses sil f his varied capacities. This striving for seerelization i the essone of being human.” Weeramantry summed up Avistole's view on the nds of aw as follows: ‘The purpose of lave then was to assist man to ‘the attainment of his fullest potential in society. Since each individuals pozential isnot the same a5 that of others, every effort mat be made, therfore, to draw out his best capabilities ~ whether attic, literary. physieal or any other. Por this, edveation is necessary and becomes the responsibilty of the Hate, forthe ethical end af the state isto develop ach individoa’s natural its to their maximum ipaciy. The state fully attains its ends when it suoweds in developing and maintaining a Ife rich inmoble sim and Geode. Law Ukewise, fu te fupremest function when itassists the state to this oe. must init ideal form help every individual {owards perfection. his view transnitied to moder Iw 8 Heh vein of bumaniam which hax helped Jmmensely in dispelling the repressive and negative ‘iow of law widely beld in medieval Europe BL AQUINAS ‘Aquinas countered the objetions which argued that ws as uch de not neces make men good 1. Anguments holding that laws do not make man food. ‘These arguments point that: a) itis “virtuc™ and noi "law” which makes men good; b) goodness precedes aw, ce. manbeyslaw because he isalready food, in the same way that bad men vilate the aw by their being bad. Goodness precedes abedience to the la, and not its consequence; ©) there are people ‘who are "goto the community ut “bad” on those Teferringto themselves. Am example would be a good Frat Fo Dison of Pato, Barc & Neb Bop. ‘cceiy, Cm Ae naan Lar, Batter Po Lied,ORCAS STUDY APPHOMGHT leader or philanthropist who smokes and drinks Ibeavly. The loge her i if law is intended for the eammon good” then it sufiees thatthe common societal — weal is achieved, regardless of how the Jaw affects man inévidualiy, and @) since some Jaws are tyrannical and abusive, their effects would necessarily he harmful. Lawmaking tyrant and dictators do not generally care forthe good of the citizens but fr personal gain and eggrandizement. ‘The laws therefire propounded by these leaders would nat male men god, 2 Aquinas’ reply ‘To the arguments espousing that laws do not ‘necessarily make men good, Aquinas counters: ) {at every law's aim is be abeyed by those to whom the law is addressed, nd that the “proper elect a law (s to lead its subjects to their proper virtue. Since “virtue” makes men good, it follows that the Dope elec of law is to make men (the recipients and subjects of law), good. As Aristotle says: awmakers make men good by habituating them 10 good works.” b) That “goodness” as such is not the only reason why people abey the law. Some obey for far of the consequences sueh as punishment of ‘having a particular transaction declared void which -means losing the state's cooperation in enforeing the Drivate agreoment. e) Since the individual ie part ‘of the whole, the goninesa ef the individual will be {elt proportionate tothe common good. This means {hati tis the law's duty to promete common good, the law need likewise promote individual good since the individual good makes up societal good. dA, tyrannical law is, strictly epealeing, not true law. Te "perversion oflaw," and one that is notin aceord with reason. Tite Raton ni, Recipe CHAPTER 4 ENDS AND EFFECTS OF LAW JUSTICE “The light of men i Justice No light can compare with (height of justice” — Bhalla qe ea pce ree eet ea cai pecattins ty eae Peete plato macnn fe ae es a as ees foes a oe are ero Pes terse Te a eae Se oe een eee cies sie ae ee rea ae on SIGNIFICANCE OF JUSTICE, For Hartmans, the primary significance of justice is its “tendency to counteract the erode ogism of the individual’ ‘As regards the goad things of if the ograt’s standpoint is everyting ferme, whether anything remains over fr otters for not Againt this, justice maintains: Not everything for Tin ight men isso’ Tet 25 Noh cpa wth tel once pat ep Di Cres sia Cl 11.109, ia, se Fs Seria weow {oN PuILOSOPY FoR FINO. ‘me, but the same for myself and athers, All grievous sinning against one's fellowmen, whether against body, Iie, property, ‘social status, repudiation or honour, finds inthis fundamental attitude a complete check ARISTOTLE ON JUSTICE Like Plato, Aristotle also defines justice a giving everyone his due: Mis principle tha every individval must be given his due is the foundation of allkinds of ‘order in the human world: It may be said that true dlsorder in the word is brought about by iniquity and injustice, An example is when an employer infinges on o withholds the rights of employees by giving them lesser benefits than what is allowed. Conversely, with justice and fairness, many problems of the world can be solved, ForAristotlo,justiceisa'meanA jst sction'isan intermediate between acting unjustly and being unjustly treated.” This means ‘that a just person gives everyone hie du; conversely, am unjust person takes mere for himself f those which should have been given for others. Injustice for Aristotle then it excess and defect’ of that ‘hich is ‘contrary to proportion of the peful or hart” He said" to bd unjustly treated ta ave too Aristotle explained that thereis some confusion in the definition ‘ofan ‘unjust man’ Society equally calls man unjurt ihe a) breaks the law; or b) takes more than his due an ‘unfair mat), He then proceeds to explain thet justice is of to kinds, natural and conventions ‘A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting itor nt. A rules conventional that in the frst inetance may be settled in ‘one way orthe oter..forexample...hat sacrifice shalleonsit of a goat and not of two sheep...Some poople think that all Te aa i, Mura Libary of Pap PT ile Be: ri Bir ups AND EFFECTS OF LAW rules of justice are merely conventonel, because whereas law bf nature i immutable and has the same validity everywhere, fs fire burns bath here and in Persia, rules of justice seem to vary... The ales of justice based on eonvention..are not the same in all pees, since forms of goverament are not the For Aristotle, the source of difficulty is in the ‘etification of law whore law is defective which is 'equty Ho said In fact, thie the reason why things are not all deter. ‘because there re some eases for which it impossible to lay down ala, so that a special ornance be- tomes necessary. For what is indefinite can only be measured try en indefinite standard, lke the leaden role wed by Use Les- ban builders oct a Ut rule is not rgié but ean be bent to the shape of the stone, 20 special ordinance is made tofit the sireumatancee of the ease. In other words, while obedience to law is called gal justice’ theve are situations where the Taw itself may, for any reason, become unjust, This is where equity eames, in order to retify legal justice. Tis restfiation based on equity isin turn based om higher prinipls of natural law and unchanging principle ofjuctice and firms OTHER DEFINITIONS OF JUSTICE “Encyclopedia Britanniea defines justice as: Inphilosphy, ustioeis] the concept ofa proper proportion ‘between a person's deserts (what is merited) and the good and bhed things that befall or ae alloted t him or he. Aristoile’s Gioeuasion ofthe virtue of justice hat een the starting pint {or almost all Western accounts. For him, the Key element of juste is treating like cases alike, an idea that bas eet later thinkers the task of working out which similarities (need, ‘desert, talent) are relovant. Arstole distinguishes between jjurtioe inthe distribution ef wealth or other goods (distributive justice) and justi in reparation, a, fr example, in punishing emeone for a wrong he has done (retributive justi), The adnotion of justi f als essential in that of Uhe just state, a central eoneeptin political philosophy.” Daniel Maguire in his A New American Justice, gives a simple yet enlightening dfiaition of justice astice is the first assault upon egoism, Bgoism would say: "To me my own” Justice says, “Wait. There are other tedves” Personal existence ia a shared glory. Bach of those other aubjects is of great value and commands respect. The ‘go ha a tendency to declare itself the sun and center of the ‘tniverse,dastice breaks the news tothe ego that there are no solar gods in the universe of persons. Justice i the atitude of ‘mind that accepts others — all ohers — a subjects in their ‘own right. Justice asserts that one's own ego is not absolute fand that one's interesta are related. Inthe simple concession that cach desorves his own, tho moral self cames to grips ‘withthe reality and value of other selves. Justice is thus the lementary manifestation of the other ~ regarding character ff moral and political existence. The alternative to justice is ‘cal disintogration because it would mean a refusal to take others seriously" SUSTICE AS OBEDIENCE TO A HIGHER LAW For Cicero, tho ‘origin of justice isto be found in Law" Law in thie sense being that ‘suprame Law which had its origin ages Defore any wrtion law existed, or any State had boon established ‘or Ciro thus, cbedience ta the supreme or higher moral law even ‘fin the process it violates human law is t pay homage to true Justice. This is the theme of Antigone by Sopholes. Antigone was ‘the daughter of Oedipus and Jocasta (Oodipas mather), the King ‘and Quooa of Thobes. tor Oodipus blinded himeelf Creon became King of Thebes. Antgone's brothers Eteecles and Polynices rebelled ‘against Croon and were defeated, Under Theban laws, rebels cannot ‘be given proper burial Those who bury them had committed treason ‘which act if punishable by death, Antigone chose to violate the Fa RATES Cnc och yw nee, a TESS ign, 4 Nee Amen Jat, ong Wien Ps “we? law ofthe land and gave her brother Polyices proper burial In vbedience to higher law She was rentenced t death by way of {imprisonment ina cave SociAL JusTICE CASE STUDY: Calatang o. Williams In the City of Manila, a trae regulation prohibited horse drawn carriages oF haleeos from plying in some of ig streets, The regulation was challenged and the case trent all the way to the Supreme Court who said the reg- ‘ation was valid in the governments exercise of lice ‘ovwer, as the intent of the regulation was forthe pram: ‘om of publi welfare In this cate the Supreme Court had the opportunity to define the concept of social justice” “Social justice is neithor communism, nor des- potism, nor atomism, nor snarehy, but the human- tion of laws and the equalization of social and ‘sconomie frees by the State so that justice in its ational and objectively secular conception may at Teast be approximated, Social justice means the pro- tration ofthe welfare of al the people, the adoption by the Government of measures calculated to ensure ‘economie stability ofall the component elements of focet, through the maintenance of & proper eo homie and social equilibrium in the interrelations Ofthe meer of th meni, conan, ‘rough the adoption of measures legally ustsabe, or extrzconstitutionally, through the exercise of powers underlying the existence ofall governments ‘on the time-honored principle of salus opuli et su prem lez Soma ese,CHAPTER 5 ENDS AND EFFECTS OF LAW WISDOM and LAW AS HEURISTIC “Thope our wisdom will grow with our posse, and teach us, that the less we use cur power the greater itil be Thomas Jeferson ___ For Pato: the true function of law isto produce men who are ‘completely god,” a prerequisite to wisdom. Laws that donot incline to this end are not law A bad law is no law: Tklep wateh on my present law-making,” says the Athenian, "in ease I should enset any law either not tending to goodness at ail, or tending en fo a part oF.” As a philosopher, Plato, much ike Socrates before him, Joes ‘not accept anything less than complete goodness in men. While law ‘and other man-made institutions fo that mater seck to make men ‘od, wisdom per oe ia ot found in the law but in specific persons A person's virtues ~ qualities which law sks to develop — are bat ‘components of the higher attribute called wisdom, A. WHATIS WISDOM An ancient concept, wisom has ben histaricaly considered as the pinnace of human development Wise people are presumed to TREN cr mone hal a bch a = ieee “hes ming a oan hi ‘tothe kinds of virtue," Plata, Laue, 1,630, =r m ssece many positive qualities such a (a) a mature and integrated Personality () superior judgment skills in dificult life matvers; find Ce) the ability to cope with the vicssitudes of life. Unlike Intelligence, wisdom isnot believed to dedine with advancing age (On the eontrary, wisdom has always been associated with the elders oct to Ardlt, wisdom cannot exist independently of Individaals. Te eannot be preserved outside of individual: [Wisclom's] distribution in society opens on the person. al development ofthe people whe make up society and not on the development of cultural software. "The moment one tries te proverve wisdom (eg, by writing it down), it loses its eon rection to a eonrete person and transforms ino intelectual (theoretical knowlege. T propose that even the mort profound ‘risdom literature’ remains inelleetal or theoretical know edge until ite inherent wisdom is realized by a person. If ‘were indeed wisdom per se that could be found in the wisdom, erature, two people with similar intellectual eapabilites (hardware) who read the same wisdom text (software) would ‘need to grow equally in wisdom. Wherees this might be tue for ‘intellectual or theoretical) knowledgo, I doubt that iti true for wisdom, Intelleewal or theoretical knowledge is knowiede that is understood only atthe intellectual level, whereas wit dom is understood a the experiential level. Its only when an {naividual reclizes (re experiences) the truth ofthis preserved ‘knowledge that the knowledge is retransformed into wisdom and makes the person wiser. Ifthe truth is only understood fntelloetually, it remains intellctul (theoretesl) knowledge fd doce not lead to personality transformation ofthe individ alr Karmann, A 1906, Winksome tng: Cone of do nae teria anf cata prmpete ID, Poteran 1M: Lar Pe i i Lap tpn nd ame pr ‘Rr, E000), Wisden a get Roem Sytem: A Creal Review st ygatantnyOpanaain fc Cs Rano sp(CASE STUDY: ABRAHAM LINCOLN Below isa story of Abraham Lincoln as reported in a 19th contury newspaper. Do you think Abraham Linceln inwine or aelich? ‘Mr. Linesin once remarked toa fellow-pascenger on ‘an old-time mud coach that ell men were prompted by Selshness in doing good. His fellow-passenger was sn {agonizing this position when they mere paasing over & corduroy brig that spanned a slough. As they crossed ‘this bridge thy eapied an old razorbacked sow on the ‘bank making a terrible noise because her pigs hed got into the slough and were in danger of drowning. As the ld coach began tocimb the hilh Mr. Lineoin ealed ot, “Driver, ean’ you top just a moment’” Then Mr. Lines Jumped ont, ran back, and lifted the tle pigs out ofthe ‘uid and water and placed them on Uh bank, When he r- turned, his companion remarked" "Now Abe, where docs selfishness come in on this litle episode?” "Why, blest your soul, Fd, that was the very essence of selfish. I ‘Should have had no peace of mind all day had I gone on fand left that satfering old som worrying over those pigs. Aid i to gt pence of ind, dan you ee” 1B. PLATO'S VIEW OF LAW AND WISDOM. In Plato's groatatt work, The Republi he considered the possibility of establishing tate in which law ix omitted, and where ‘Society is instead ruled by the wisdom of the Philosopher King For Plato, law has its limits. Human institutions -inluding law: ‘must alm for wisdom. Lav’ rules suit the average men in average iatione. They are not eapableof dispensing customized and fae Solutions in every particular case. In Statesman, he eays low "does rot perfectly comprehend what is noblest and mort just for all™ ‘and therefore *cannet enforce what la beat.” This i a0 because the “Eiferences of men ad actions..do nt admit of any universal and Brera Plt in Grek ud oc a Ltn a daloge boinc ‘Gerson ur sndois Teron nme crea led yume Serle) o> ‘Sleepover fom says te tot courtesy a smple rule, And no art whatsoever can lay down a rule which will Tost iftim™ Plato does not doubt that law-making is the work of the king, But he say the "best thing of sl ia not thatthe law should ule, bat that & man should rule, supposing him to have wisdom tnd royal power.” Pato beKioves that power comes out best with true knowledge. A sick man needing surgery does not choose one lees than a trained eungeon, such as a bridge builder or athlete Ranning the affirs of the state requires ralera who aro suited tnd wise, not the best-looking or sounding, or one who has the fume or connections. Iti in the state's est intorest tobe led by Ite highest avilable intelligence, by a philosopher king oF kings, ‘quipped by nature forthe job, Pats tits that his or her rule will, br jar. The question is how doce socicty ind that intelligence, and ‘when found what typeof education prepares them for this highest ‘ot daties, Plato dealt with these questions in the Republe. By a proses of extmination the individuals appropriate place in society aotermined, corresponding to what part predominates a perso’ ‘oul, i. the rational, appotitve, and spirited, In Laws, Plato, speaking hreugh tho Athenian stranger (teenos?) broly defines law a2"opinions about Ue future” He says {he general name for these options is “expectations” When the Fo, Bateman, 94 (enna Jowett rns) I. Pats nar wes be eens nde i theo mayb say” acest oe ea = ‘Sets tna tonne th raas e aed ‘Srna wenn hat any ike map ft alas were at i seen nna meta pst al ete IPeatuy of Phy, bt (Dug D- Rus sy Polly Lary Now ‘Poi, Pc ole that ee ppl wl aly argu, anor td etree oy th ert el fre “Only te con of Le ‘Sheree fei) waite, The rl f hl Crt ohare de rai hawt une: Pt cers aman be ase‘ACASE STUDY APPROACH ‘expectation is pain, the opinion’ apeeifiename is “ear * When the expectation is of hop, the specific name is “pleasure” When these “opinions” or “expectations” are "embodied ina decree by the state” they are ead “Law Pato ikons man to “puppet” of the ods: ther their “plating nly x crated with «purple of te tha "we cannot sersiny know What we “do Know! ie mans “aections" are “ke cr and tring nh hat pula “erent And oppenite ways snd to “opoeto acon” As to which way he tes“ the drones between vito and ice ‘Among the “cords there ane dat man ough to grasp and “ever et ga” Man oughta pl with tag the Feat Th isthe sacred and golden oof ‘eson“ raed the commen the wt Part Pl ae ef he erent “Gat ‘rIhere are others which are hard and of iron, but this ‘one [reason is eft because ite golden; and there are several other kinds. Now we ought always to cooperate with the lead ‘of the best, which is Jaw For Inasmuch ae reason is beaut ‘and gentle, and no violent, horrule must needs have ministers in order to help the golden principle in vanquishing the other prineiples..(Tbe ‘attaining to right reason in this manner of pulling the strings ofthe puppet, ould live scoring to its rule; while the ety, receiving the same from some gud or from one who has knowledge of these things, should embod itin a law, to be her guide in her dealings with Iherselfand with other staten"» Plato believes, as do Aristotle, that it is only in the state where a person develops his highest goodness and potentil. Such “oriness" dees nat grow in iolation but in one's reltionship with his fllowmen. One acquires virtues and sills in society. Te isto sciety in return where these sills are given back and exercised. ‘The state is a man’s soul writ large. Just as man needs virtues to balance the elements within, society needs laws for its right Functioning. “Laws are partly framed forthe sake of good men, fn FT, 1.04 deg Soret rns) order to instruct Usem how they may ive on friendly terms with one ‘other, and partly forthe sake of those who refuse to be instracied, ‘those spirit exnnot be subdued, or softned..”» Laws harmonize the elements ofthe state, and help them find their right place, For Plat, the customized “fi” ofthe intelligence ofa wiee man {i the best answer tothe ils of ssity. He proposed that such a ‘man should rule society, calling him the philosopher king” Law is too general and doc nt perfect comprehend what is noblest and ‘ost jast forall” hence “cannot enfrce what is est."» He said tho “fiferences of men and actions..de not admit of any universal and ample rule, And no at whatsoever can lay down a rule which will last ifstime."* While the giving of law ithe Job of the king, but the “best thing of al isnot chat the lw should ral, bat that a man ‘should rule, supposing him to have seladom and royal power For Pata true power eomes from intelligence and individual wisdom ruling society, not en the “blind” generality of rules, Avistotle disagrees, For Aristotle, political power is best exorcised through the “rae of law" For im, laws are products of ‘reason, not of individual passin. An individual may'be subject to whims and passion, whereas laws would be based on reason, faimees and justice, Giving abealute power to an individual is to ‘court “yranay," abuse or the preference of the interests of the particular to the detement ofthe whole. If mature persons in & ennamunity take part in the formulation of laws and place society ‘under the command ofa legal order, this would be more conducive to the attainment ofthe common good than when sity is subjosted tothe whims and passions of ene man. LAW AS HEURISTIC Hurst or Keeretic is that branch of loge deal iscovery and finding ot From Grock heuriskein, "to discover, t ‘8 method that provides ‘assistance in discovering (or in presenting) fs truth or solving a problem Heuristic is a ‘model or ‘useful ‘hypothesis™ that leads to solution that tore oF less near the rerio {at Raman ann ou tr) hoes apr p5. cect van nenn eed annea GA, PLosorEY FoR FLAPINOS: INCASE STUDY APPROACH best prctble anewer. Law as ‘heuristic’ thus means law is viewed as a‘rule of thumb,’ or a general principle which is true in most eases but neither accurate nr reliable in all eases, _Heuites av belo the principle that some sertions are ‘assumed as true’ because previously these assertions were ‘successful in preventing a close model of the truth. They are used in logal theory whea an individualied case-by-case analysis would bbe impractical, insofar as ‘practicality’ is defined bythe interests of 1 governing body.*For example, the minimum age for persons tobe logally mereied in the Philippines i 18, a required by the Family Cade: The assumption is, one is mature enough to embark on & ‘ong commitment sche marrageby the meh ore eaches ut this assumption is not based on a case-by-case reality Others may mature aseary as 14 or as late a8 30. See Ee Fen men ete Steet ihece eines earere (ime cence in ny ory wah eee CHAPTER 6 ENDS AND EFFECTS OF LAW EQUITY “Where late dispense with equity, equity should dispense with fue.” ~ Sir John Vanbrugh (1664 — 1726) ‘The Provo’ Wie “Baguity: Simply a mater ofthe length ofthe judge’ ear.” — Frank McKinney Hubbard (1868-1990) The Rayer Dictionary Law as ‘equity’ has tro meanings. First, it may refer to ‘fairest’ or justice, as in treating people equally and fairly, and second, it ay refer to the rules developed bythe Court of Chancery {in England in the 12th and lath centuries In England, equity developed as separate body of law a5 1 renetion to the inability of common law courts, in their strict ‘tdherence to rigid writs and forms of ection o provide a remedy for very injury. "The King alowed equity law to be used in situations where justice may be served between the partis where common law gives ‘no or inadequate redress.” “Aristatle believes that ‘aw’ ie ‘proforable to that of any individual"and maintains that ‘absolute monarchy: or the'arbiteary rule of sovereign over all the citizens, in acty which consists of Bree Git, Lv Disnary, Bart Beato! Sar, ne ‘Recta Pee‘NCAME STUDY Aro ‘cquals is. contrary to naturo,*for noman sould he above the law. Individuals are at most implementers and interpreters of the law Eren ifit be better for certain indvidualsto govern, they should bo ‘made only guardians and ministers ofthe law Sil he recognizes the limits othe rule of iam. All law is universal,» Aristole sald i ‘hat it lays down principles couched in gener language, But there {are many situations where it isnot possible to pronounce rightly in ‘teneral terms. Law takes account ofthe ‘majority ef casea, tou ‘ot unaware that in this way errs are made.” These ‘errors do ‘ot make the law less right. The error nelther lies in the law nor the legislator but in the nature of the particular ease. This i where ‘equity eomes in, or Aristotle thus, equity isthe ‘rectification of lawn far ‘law i defective on aecount of ts generality" Equity was necessary tomitigni the rigor of the law. BY it nature, law was created in pattorn of general assessment, There would always be cases the gray and overlapping areas ~ beyond the reach of the law. This 's why Aristole insisted that not everything ean be regulated by. law. There are situations that ‘no law ean be framed te covers Ae suitable man is one who ‘chooses and dows equitale act is tot ‘unduly insistent upon his rights’ but ‘ecepte less th his share, although he has the law on his ide ‘The source of the difficulty ie that equity though just, ‘not Lega justice, but a rectification of legal justice The reason for this that Law is always a general statement, yet there are ‘cases which itis not possible to over ina general statement ‘This isthe essential nature ofthe equitable itis a rectification of law where law is defetive beceuse ofits generality In face, thisis the reason why things are not all determined bylaw: Is because there are some eases for which its impossible to lay down alaw, 20 that a special ordinance becomes necessary, For ‘hat is tee indefinite can only be measured by an indointe ‘Arce, The Norske ti, Bh 6,2 sina ray iii Sone aaee Se ers eee eo Dictonar lity as the ‘recourse to i ey eee oes oe cease are pectin ore eerie refer and ‘universal’ and there are situations when the hea ‘eeveation ofthe law would result to injustice instead of just _ bem ‘this situation, resort is made to the saooeeel bar one Mteral letter. For Aristotle, equity or epieia’ apt Sa i ae hae cerintaae teat gunaehameate Cipeecnte tie eee sere Sate ari iS eee ers gga i th ogra rae ee out oinie tie ered acne tet Sie eharecamtaatieatn aaa cence Seer cmon ‘Tus, equity jurpradenc ie [Aformal st of lal and procedural rules and doctrines ener como sod stat a nod 1 i ad nde des ned subanve aw She mtn dnt render judgment by ros en aye eer Ty mt rade ‘eves dpm te fn fo oh arent a Sea a any fw governing parler dopla SS ea pat eh zs ie Nhomachone tk. V,Ch. 10. ar LO ra-ACASE STUDY APPROACH law involved is vague or nadaguate, Jad req, fimens and «sna of ute ta ea He ide ty law ifn expend in maxims like equity coer not Hight without a remedy, ity Suit fellows the law The ater, career th itis but, buildings at the th TE Sapir Catan ss scka sr "InRec Pa eal 3 toncern. However, de to differences in each States contribution In the global environmental problems as well ae differences in their ‘conomic and technical capabilities, their contributions need not be the same. According tothe Rio Declaration: In viow ofthe diffrent contributions to global environ- menial degradatin, States have eammon but diflerentinted responsibilities, Te developed countries acknowledge Uhe ne- sponsibility that they bear inthe international pursuit of sus. tainable development in view ofthe pressures ‘heir societies place on the globel environment and ef the technologies and Financial resoureee they command. Inthe same declaration, States agreed that ‘the special sit ation of developing countries, particulary the least developed and ‘hoes most environmentally vulnerable shal be given speed prio ty! 2 Sustainable Development ‘Sustainable development’ asseass or quantifis development in relation ta its long-range impact onthe beth the lca and wide ‘avironment. It isa moder eoneept, rst defined in the Bundtland report as that kind of development that ‘meets the needs of the present without compromising the ability of flare generations to Meet their own needs Sustainable development subsumes two sub cancepts: a) ‘the encopt of neods, in particular the essential needs af the world’s poor, to which priority should be given; end b) the idea of imitations imposed by the sat of technalogy and social crganization onthe environment’ sbility to meet the present and. future neds." ‘Thomas Joffoson, centuries before, prsaged the concept by stating that the ‘earth belongs in usufruct to the living” where “usufrueti defined as the right to use another’ property fora ne ‘without damaging or diminishing it, although the property might naturally deteriorate over time.™ 1985 ASEAN Agreement on the Conservation of Nature and [Natural Resources was the frst formal treaty that referred to the int Comminion ct Encrocment and Dovlemest (WEED), Our Com ‘mon Pre; Onor Ondine Ps, 169 "Ble Law ion, 190, p15‘concept. This was two years before the Bundtland report SER esras tv years ore the Bunda repr. The 1985 termes eet = Senor omar oreo ec epee en Feehan ee Sunanble,dreloment ie rtd 9 the ‘principle sainhtae stn patent oa we po It is also related to the ‘principle of integration’ which ‘mandates that environmental considerations need tobe integrated into the country’s economic and other development plans, prograsns and projects. That in plotting development goals, environmental protections must e intagrated thereon, 8. Intergenerational Equity “invergznerationa ety lives that humanity ms to natrl and catiral eitenment ef Ear eo oth’ Wwity other ‘neers of the present genta aah ene tier generation, part snd future Tio mene ei he rene eran mer nero om at ans wr tree ovirnment Comeqenty,hve the are Shlaton opm en tr te ee of far por a well proceed nd presered environment Te ‘called inter-generational justice. ae Intergenerational equity is distinguished from ‘intra- ‘enerational equity in thatthe later moates the Square ‘rudent ute of natural naourees for he bene of ether pps ‘nations within the same generation. : emai Fundamental Pin 198 ASEAN Agree on th Coneeton EDS ANDEPVECTSOF LAW = (CASE STUDY: Opose ©. Factoran” ‘The landmark cate of Opes v. Facoran was org nally filed before the Regional Trial Court of Makati ‘There wore 44 children who were represented by their parents, end the Philippine Environmental Network, fn NGO geared towards environmental protection and preservation, The petitioners stated that entitled to Tall benefit, use, and enjoyment ofthe natural resource tre ‘ure that sth country’s virgin tropa rainforests They prayed that the Secretary of Environment and Natural Resources or hie agents be ordered to eancel all existing timber license agreements and to ‘desist from receiving, accepting processing, renewing or approving ew timber licensing sgreernents* ‘The petitioners filed his ease on behalf ofall the chiki of the Philippines and also in the name ofthe yet ‘unborn generations under the principle of intergenera- tional equity. The ease eventually reached the Supreme Court, and among the issues raised was whether the plain children have cause of action to file a taxpayers? ‘las elo this nature: Hel We find no difficulty in ruling that they ean, for themselves, fr others of their goneration and for the ‘uveding generations file class sult. Their porsonality to suo in behalf ofthe succeeding generations ean only be bbased on the concept af intergenerational responsiblity {insofar as the right toa balanoed and healthful eclogy is concerned. Such a right, as hereinafter expounded, ‘considers the “rhythm and harmony of nature." Nature ‘means the created world in is entirety Such rhythm fand harmony indispensably include, inter alia, the {hudicious disposition, uullzation, management, renewal fand conservation of the country's forest, minora, land, hands Open tal, The Honore Fuge. Fctoan rn bi exons sn Saray te DepreentofBromnart and Neral Res ‘SSUihcHenonble ero U. err, Prange fe HTC Maa. Broch ‘repent Me T0108, Sly 0105,tes erin, wie howe areas and er attra reeours to the’ Gat ir epleraton, Sevaopment aad uiiation te equiably acai the precnt ‘ae well a fre entrant. Needles to fey, every Eeerton han» tespatly fo the net to Preserve tet pth nd harmony fr the fllenjpment Statilanced ond belt logy Pat ali iernty ‘hominorsasertionof ther rgh ov nun envirnmen Ssaes ese tne tn prema to enare the proton of hat ri fa the generations to come, pee CHAPTER ENDS AND EFFECTS OF LAW HUMAN RIGHTS “Ufciutisation ie to surive, we must cultivate the science of human relationships — the abt of all peoples, of ell kinds, to live tether, the same world at peace” — Franklin D. Rootev ‘Human rights are those rights poopo are entitled to simply because they are human, These are the'fundamental and inalienable Fights which are essential for ife as a human being” Human rights fare a sof principles, laws, ules and standards designed to protect fand promote human dignity. Louis Henkin defines human rights ‘a thove ‘liberties, immunities and benefits which, by accepted ‘ontemporary values all humen beings should bo abe to clsim as “of right ofthe society in which they live Those rights aise directly fom our nature as persons, to which each human being, irregardless tf race er national, must have. Human rights are innate in man, ‘which the state may not deny ts anyone. They concern not only with ‘ical or political freefoms but also on those base things one needs {fone is fo function and participate well in the community of man. “Human rights alo carries with ia corresponding obligation, wich inthe duty to protec the human rights of others. Examples of human rights are the Emancipation roclamation ‘of 1863 and the subsequent amendments to the US, Constitution’ “En Srp urna! a, 3 ak er aaa eh hand 1h mendes of 865, 1888 nd 180, respectsCHAPTER 12 KINDS OF LAW “Human a stow oly by. veo by by ire of it acordance wit sand by this means lor ha flows fon Br he” = St. Thomas Aquinas “Imagine the appeals di inde dissents and remandiments ‘lawyers had writen the Ten Commandments — Hany Bender A. OVERVIEW For Aquinas there scant, ABN ther ar, generally ly secoding i inetd human is ol emt Seed and may be sub-lassified into eternal law and vine Positive oe reveal led) law. The latter emanates from man ithe si tran La may aed matra a pose haa ws area priori (pre-existing) principles fe coal from Goderich est sre pose rotlgned a pclae nes pr isting , ne principles invoked me mio ForKan tual his anne igh whith og ves ny nature, independent of al jure! cts af experienc Wine ‘acquired’ (or postive) right is Younded upon juridical acta oe SSS ees seer errno rere a ee [_ sod teen 1. DIVINE AND HUMAN LAW DIVINE LAW Divine law is abo Known a etamal lw. Fer Aquinas, the ‘world is ruled by Gard the Divine Providence’ and thatthe ‘whole ‘Thmunlty of the univers’ in governed by ‘Divine Reason.® This ‘Goverment of things in God has the ‘nature of law and since ARrDivine Ronson‘ conception of things isnot subject to time but iecternal’ this Kind ef law i Use ‘eternal law. This etoral tae ting found only inthe mind of God Divine Mind”) is esuensally ree able and unfathomable. Nevertheless, man gets glimpses Coun fous somewhat" of this law through s) human reason, hich to Aquinas is an inage or reflection, however imperfect, Pie divine mind, or through b) divine revelation, such a8 the ‘Ton Commandments and other laws and principles revealed by the prophets Tis noteworthy that there are two ‘pathway in Ue study of Gods theediy and thelogy. Theodicy isthe philosophical study of ‘Ged ucing reason [tis the rational and syatematie study of religion a religious truth. Theology onthe other hand isthe study of God rough revelation and Holy Books. The Catholic encyclopedia Toinguishes the two in tha: ‘Theodicy.. may be defined as the sBec which treats of God through the exerise of reason alone Iisa wlence beenue it systematically arranges the content of our Hrntcdge abot God and demanstrates, in the strict sens ofthe ard ech ofits propeitions, But it appeals to nature a its only Tico ot prof, whereas theology sets forth our knowledge of God a ‘rawn from the sours of supernatural revelation." "There are two types of divine law: a) the eternal faue in the divine government ofthe univers; and b) the divine positive lave. ‘The former ave laws in the very nature ofall erated things and as eileen, implant atthe very moment oftheir creation by God, ‘The Inter are laws promulgated by God through his prophets as found inthe various holy books. Irena ae ey neendonrater! A504 em, dred Jae 1,208seca mas ‘Bternal laws affecting man, ‘Aguines, the foundational precept of nati law in he an sere is for ‘ge “pursued an ani ate Eat Sie pansy ote "tur inching. These are, rt mans nda td pod ipecanicieennaamen ts Sec tieomecnreaoctares ecru as ara te do god acodig Wo the nae he has In omni er setiorec some areca ieee agrarian oon ere arean siieniteem ne duty to shun inarance and avid offen say id offending those among whom one (HUMAN LAW Fer Aquinas, umn laws wre creat Aawinas, fre creations of the tox sven tthe hie ayer Girma a parte lan ofthe Governor in het ho iene sana i ma emer, Thu ema orm ra and its incumbent pon the human lemons dee {he diectvs and purpose of th eral ay When hese {cos nut on the eter law, the former may ever nd {ie nan oman. Aquashoe ser oro they bun tiny bie ow aha in contin artery, Ags mit see sth an of govern nthe Cie Govern al plans of government inthe inferior plans of goveroment inthe inferior governors must be derived from someifnng "OMA Me nem hf TT 96 tet ‘nat so a ©, NATURAL AND POSITIVE LAW NATURAL LAW [Natural law believes that the foundation of what is true’ and “goudlaw can be accessed through the ad of human reacon, Natural {Ep believes thatthe foundational principles of tru lat, which is Imerality and justice, ae immanent (inherent or (n-dwelling) in Thal. Tie maim ler iniusta non st lex ‘an unjust law isnot 0 {ue law” sums up what eataral law is about, Natural law has this Duilcin moral compase tht guides the lawmakers in thei attempt to craft lew for the common good. And there are rational limits o-what egress can lawfully 6 morally do. Acording to William Henry Seward, there is» higher law than the constitution.” Aristotle is generally believed to be the father ofthe natural Jaw tradition, Much like Soerates and Plato before him, Aristotle believed in the existonc of the fur naturale or ‘natural right! oF “Tatura justice’ Artois Relieves that ius noturle is the mean ‘etween ‘bro opposing vices. For example, courage is the mean, Between the excesses of cowardice on one hand and rashness or bravado on the other. iogl divides laws into two kinds. Natural law of the aos cof nature and positive law or the Taws of the land’ Natural laws (govern men in tho slate of nature, £2 in the wild or ouside the ate of civil society. Those laws are ‘natural inthe sense of being Intinetive, Hegel said that Tp know the law of nature, we rast learn to know nature, snes its laws are rigid, and itis only our ideas bout them that ean be fale." For Aquinas, natural laws come from God while positive laws ‘aro made by man, He writes: {he natural lw is nothing else than ‘the rational ereature's participation in the eternal law. In other (fords, nauiral law is Ges eternal law applied to man, a law both Toceived by and existing in man. tn applying the principles of netural law, two principles are {allowed 1) audi alter parter meaning the right of the person "Win ary Sear (1401 — 72) Spach, US Seat, Mare 85 rasta an iron, Ta Great roy Mor 1 Aer aegis aie "eng gue in aa ntrlutin, The Ora a, Matin eA Beige rane Ine BBEte ‘toa eosoray por ruspisos ‘ACASESTUDY APPHONG concerned to be heard, or simply ‘due process, and b) nemo dex in ‘cousa sua meaning one should net judge a eave in which Mroee is interested. According to Lord Hudson inthe Ridye Casey ee Principles stand out when i comes to natural justice: 1) The right tobe heard by an unbiased Tribunal; 2) The right to have rote ot ‘charges of misconduct; and 3) The right to be heard iy amen fe that change Noro recently another principle is added which is that the decision must give its reasons in writing. This would ensure thot ‘minimized ifnot prevented. This likewise ensures thatthe apnea, or reviewing body, eg the Court exercising writ juridicee coy follow the basis for the decision under review beforeit This prneole holds true whether the ease stems from judicial, quasnienn ns administrative bodies, (CASE STUDY: KRIPAK CASE In the A.K. Kripak cas, the Supreme Court of In dia condemned the decision ofthe ‘neting Chiet Conser. ‘ator of Forest’ and called it contrary to the principles of ‘natural justice” In that eae, the acting Chiet Con sorvator of Forest was part of the Selection Committee to choose a candidate for the ost of Chief Convervaton, ‘where the acting Chief Conservator of Forest was himself «a candidate forthe pest. While he excused himself fem ‘the Selection Committee when his own fie (as candidate) Was sertinied, he remained part of the Selection Com, mittee which loked into the files ofthe other candidates The result: he was chosen for the post. "The sae went al {heway tothe Supreme Court which ruck down th de- sion ofthe Selection Commitioe calling iteontrary tothe Brinciples of natural justice thet no person should edge g ‘case where he himelt i interested Biter iaiain isn 2armos en, "AR Hepa Un ofan a 19108018, | Posrrive Law jaman law, alse cle ‘postive lew? i la munpal lew endian ator at, sd ti tpl ‘ution she ging pce fo th Knowledge of et in ie Donte eo te cence of ptive a= ites from thea ofhumanfgltnnaningrnon Bango pode of amen rnin putve nes nde he ements oi Sirol athe eadom fochange the law when the ned require Human laws for Aquinas are “particular determinations Aevised by human reason. General precopts start from the everaal laws of God, from which the "human reason” necds to “proceed to the more particular determinations of eertain matters." Aquinas recognizes that human laws may err," unlike the laws of mature. na ves man awit elle Go and tthe tw aman een) whch sian opr om te omen eat, 1) Ju Cale — tod law or Roan enna, comand ot ttaes nd coe ving he fee ne Te ae ry Iie ew ) ds Gent ~ le no mtn ieee eigen td seta Thin was mad by ges no drew prt em Jes ty a of io an dn sue lw fre wics Saran aw Fogel ad pointad out that international lw concerns rclation teem sate wich arin ate of mate elation {ene anther” snc th seerignty estate i the rincple fx ‘ato tasters One drawback wih he caren nteritind Inwis at there len uly enced or authorized world palate ‘ich cn promulgnelavsowthrs thee aly elected rintalled Srerld caeetive fy to ence word lems. What Ss curently Internatina law tench international astm nd rete, “ls apr Aan Suro Theanine Lam) er, #91, At re hugo mel nano frond oro eco Wi oe ee. Mie Handbo or Rmes In, Vor eyes Ps. 197210 "URGAL raat osoPny por PusPtyos "ACASE STUDY APPROACH a wala gnealy recogni pines of internation flows” Hoga say, “ut i aises deere ood trees D. CRIMINAL AND cIVIL.LAW CRIMINAL LAW ina law dei with acts or omisonscommi auainat the community for whith penalise ane By th sie de wht ety dn Pa ‘rong an ease ten ns ‘rth prosen tnd LL Legal characteristics of crime ‘The leglcharacteriatin ofa erie ar: Ala, regulation or orinance duly enacted fhe slate robbs rinse cues ae) ertainacte ; b. A person acts (or in some cases fale called an ‘omission’), in a — eee Seca rerr ees Seater ee os Seah SREY er oe ere Dass ture eee Sone he eon SS a ceoeees cares OS ac ‘8. Beonomic offenses — examples are those crimes ‘agninst property such a robbery and thet, oe 1a b. Offenses against the state — examples are ‘crimes of rebellion and treason. 6 Offenses against other people — examples fre crimes which harm ofher persons such as physical injures, murder and rape, and crimes [aginst the eptation of enother such os libe, 4. Offenses against ones self ~ alto called ‘vidimlesserimes’ these are ats or orissions which mainly harms Uhe persan who commits then, Bxamples are illegal gambling, legal possession af firearms, illegal possession of flangerous drugs and prostitution. Elements of a crime Generally, two elements must be proved before ‘one may be considered criminally Hable. These are fetus ree the igaity et and mens rea, the ‘gllty ‘mind.’ The third element, causation or the link Tetmeen the act and injury complained of a. Actus reus — isthe guilty act ~ the voluntary ‘onsmiasion or omission of an actin such a way ht rat th ee fp hu ad ‘itt epilepsy and broke a display counter at a Spermarker he cannot be said to have acted wokantary, b. Mons rea — isthe guilty intention or specific desire to comma the act oF omit the doing of the duty, Mens reo ie the mental part, while fates reue brings the criminal intent to the level of action, Both constitute crime. In some eases, a porson may fail to ‘exerci a degree of care, kil or foresight that an otherwise reasonable person would Ihave exercised under similar creumstances. For example, one is not supposed to stp into the toes of another by exerelsing ordinary prudence i watching one's step. When one Tooks the other way while walking and steps into another, this ie negligence. Generally,“NCASH STUDY APPHOSCH simple negligence is not a erime due to the sbsence ofmens rea. Homevera very high level of negligence is raised tothe level of mens ra such as when one is killed due to reckons and Inmpradent driving. ‘An exception to mens rea is the legal doctrine of malum prokibiten or stect liability’ In some eases the law — particularly special penal laws — do not require proof ‘f mens rea. Only the ectus rus needs to be Proved. Many traffic offenses such as entering 8 ‘no entry’ street are striet Hability ofennes ‘For conviction, itis enough ta prove the act of Violation. One's,intent, good faith or state ot ‘ind are ireevant, {Couention — means the actor omission must been the cause of the’ speci injury ‘mplained of. This injury’ may be: against anathec person, property, the State or one's Novus actus interveniens — means | now intervening act must occur before the chain of eausation can be broken In a murder cave for example, the act of the accused must Ihave substantially enused the death In the following, the ‘chain of causation’ ‘was not broken by the intervening events Vietim’s actions afer the crime Where the victim was stabbed and upon reaching the hospital, she refused bleed transfusion because ofher religous beliefs asa ‘Jehovah's Witness. the victim died asa renalt ‘ofrefusing treatment, the accused may beheld suily for murder because the stabbing was dhe ‘operative and substantive caso of death. Ordinary natural events Ifthe victim was assaulted and let lying “unconscious bythe side ofthe rad on stormy ‘eveningand the person died, the sccused would thy of homie or marr, a he cane a be, bras the star oan oda snd 1 fyeocaenatral went. Te asta was {ull mtantiv perative and substantive Cou ode 'A unique feature in riminal law, not fond nc aig the communi fra ‘moral condemnation. Legal Phiioopber remy M. Hart, dr in hs ease “The Aims of Criminal Law, stales: Soe Sooners aye eas Se Scone once ecaae Siemon eee coon Critter aca 2 CIVILLAW Se nad settee tars nh es a a atte dngel ea aa Important distin between criminal and civilnw i emi Uw deine nes ae the cman tare il ow mend i msc invaving private porns, Criminal Ine is cect th ren mie git the tr soy Tin xis why tin hag be ‘he "pepl ofthe Pulppce’ ax pai. He tim is tmamtin poder an ney. Tae Tien se Te Ams Cri a, Jaw and Cote,‘COMMON AND CiviL LAW SYSTEMS ‘A. COMMON LAW Common law is that body a legal principles evelved by judge {rom eustom and precedents of previous cases, Ale called ‘ave ‘ude made la." eommon aw keops the lw in harmony with the needs ofthe community where no legislation is applica or whee legislation requires interpretations ‘The common law system is one of the major legal eytems of ‘he world, ands the basi of aw inthe United Kingdon, the Untecy ‘States, and commonwealth eountriet such as Canada and Austin ‘than have diferent local laws. With the establishment of tke eee system under Henry II (King of England from 1154), the judges decisions became recorded in aw reports By this nyesn, doctrine of precedent developed” B. CIVILLAW ‘The ce law logal sytem, onthe other hand, unlike common law: is not based on ease a,j decison or caatns, Tere civ lew system was based on legislated iw, porcine fens aman law. It originated under the Rema repli deca under the enpite and eondaued in use inthe Bysating Enea until 1458, Theft codieaion was thatthe Twelve Tables ago B.C) ater assuming ts nl frm with the califention ef aston in AD. 528-04 During the Mile Ages, Roman law mas sed allover Europe initially Urough the Chistian chars ia later, cul laws spread wan made largely posable tough te French Cade of Nopoleon, whichis bse on Roman lw Ge ee sytem in alo ale tale lw oF continental aw nies ‘The Philippines uses elements of bith civil law with its ‘extensive use of legislated and codified law, as wells common lage with ts reliance on the doctrine of precedent o stare dain tera of legal doctrinal development “can it ite of precedent mena th nding prt ae, he ore mus have repro principe id den merken ee oe a [ADVANTAGES AND DISADVANTAGES. Onc vstag cman nw i cn og mat ak i ae atre thom ea ere an cc ee thea apt ltr es e th of a law on the ground that itis not popular e410 {yleosefetential voters or ii agains the base teachings of relonaant aig. ‘The doctrine of precedent ensures stability and cane he tg ealonsnd carom net cnee 0 See eet ina, cnr nay gs he Sr tn't rod revenge ‘Ratton ie rally maybe wiped ot in anna devndin en the my snrodoce and hanes le a Hea seneage such as taint beep laws stan wih fe hanna ronment ha new lawe be enacted ctr tthe Seting mad cheno OLE OF HE JJOGER COMMON AND CLAW SYSTEMS proved is conducted large art qroetare under comin Iw ey oie ee iw une =. dustrial system. An exception isthe Philippines which adopt tavern poe A keaiones there of an vera eur stem ct nen the le a sung“ omy eile Te ne aa vr ipariaiy ar objet all ees le watches ‘without ‘much comment — the litigants carry on trial, and Hands Gur nalings inthe evest a party deviates from a strict eee : yams ann hel ue he ofa oie tence the mentor Hare, the de ent 8 passive ‘Sosker but mk tis busines to dewend to he level of the eck to sand ing gn tne erred bys own ian 1B. Inquisitorial system =e stems jade fen condet inquire over sagen and curt proedure ends be informal. variationEGAL Pimosorny pom Fos APPAONCHE ae re to try the case to ar ala paseo ren sei Cem ieee Bacio atta als on nto ‘during the mediation, sth fee win NS Sipe te ca ect a sienna CHAPTER 13 LEGAL PHILOSOPHY ‘SCHOOLS OF THOUGHT NATURAL LAW THEORY “Ino far as foe deviates from right reason itis called ‘an unjust law und in such aco it eno Tawa al, ‘but rather on assertion of violence” ~ St.Thomas Aguinas “In the history ofthe United States, the Decleration of Independence, the Corsttation, the abolition of slavery, the Four ‘redoms and the Aertic Charter are all n large measure the result of natural lw tinting. Beery country has its parallels.” — CG. Weeramantey NATURAL LAW THEORY [Natural law theory belives that the essence of law ie morality ‘and justice, That the jeineples of what ie ‘good and fai” ean be found within nature its and they ean be accessed through human, eason In fac, law shauld be based an reason, on thoes rules and Principles which are obvious te every rational being as the right fr natura’ thing to do. Thus, under natural law theory there are ‘ational and ebjective mite to the power of legislature to enact Jawa. Thete limits are the boundaries et by morality and justice. A. lus naturate ‘Natural law is concerned with what is good or just. The idea ‘originated from anciest Greck philosophers such as Plato and Aristotle, and have persisted to this day. Both believed, ns did Socrates before them, ia the existence of fus naterale or ‘natural