PHILOSOPHY OF LAW NOTES

WEEK 1
WHAT IS LAW?
● LAW is a rule of conduct, recognized by custom or by formal enactment, which a community
considers as binding upon its members.
● STANFORD ENCYCLODEIA OF PHILOSOPHY: Law is a "complex social phenomenon"
and "one of the most intricate aspects of human conduct." But it is not the only 'source' of
normative conduct for there is also religion, morality, custom, and convention. Law is certainly
connected with the other sources of normative behavior but at the same time it is distinct from
them. In fact, religion, morality, equality, custom and societal conventions are among the sources
of law.
● CIERO: Law is a natural force, the highest reason one implanted in nature, which commands
what ought to be done and forbids the opposite. It is the mind and reason of the intelligent man
whose natural function is to command right and forbid wrongdoing.
● AQUINAS: Law is a rule of measure of human acts pertaining to reason. Law is an all those
things that are inclined to something.
● SUPREME COURT: Law is a rule established to guide our actions with no binding effect until
it is enacted; thus it has no application to past times but only to future time.
● GENERAL & ABSTRACT SENSE: Law is the science of moral laws founded on the rational
nature of man that governs his free activity for the realization of the individual and societal ends
of life.
● SPECIFIC SENSE: Law is a rule if conduct, just, obligatory, formulated by legitimate power
for common observance and benefit.
WHAT IS PHILOSOPHY?
● PHILOSOPHY means love of wisdom or the search for truth. It comes from the Greek term
'Philosophia', which derived from 'Philos' (Love) or 'Philia' (Friendship/ Affection/ Affinity for/
Attraction towards) and 'Sophia' (Wisdom/ Knowledge/ Skill/ Intelligence). It is the search for
the reality and truth of things. It seeks to discover the essence, nature & foundation of things, as
opposed to their appearance. Philosophy endeavors to understand fundamental truths about
people, the world, and the relationship of people to the world and of people to one another.
● Philosophy is the search for meaning.
● FR. AQUINO: Philosophy is  A knowledge of things by their ultimate causes or reasons (per
ultimas causas vel rationes). It deals with the final causes, the ultimate causes or the prima
principia that is something that deals with fundamental beginnings, first principles and basic
elements.  Provides the person with a map that gives coherence to his activities and that makes
of human life a meaningful whole  Something that uncovers the meaning of phenomena. ●
SOCRATES: Philosophy is an exercise of reason. “We are discussing no small matter, but how
we ought to live” ● KOLAK & MARTIN: Philosophy is an axe. In its attempt to gain deeper
levels of understanding, it must continually question everything we believe in.
WHAT IS PHILOSOPHY OF LAW?
Philosophy of law is a branch of philosophy that examines the nature of law and law's
relationship to other systems of norms, especially ethics and political philosophy. It asks
questions like "What is law?", "What are the criteria for legal validity?", and "What is the
relationship between law and morality?" Philosophy
of law and jurisprudence are often used interchangeably, though jurisprudence sometimes
encompasses forms of reasoning that fit into economics or sociology. Philosophy of law can be
sub- divided into analytical jurisprudence and normative jurisprudence. Analytical jurisprudence
aims to define what law is and what it is not by identifying law's essential features. Normative
jurisprudence investigates both the non-legal norms that shape law and the legal norms that are
generated by law and guide human action.
See Duran vs. Abad Santos
PHILOSOPHY OF LAW VS. LEGAL PHILOSOPHY:
Philosophy of Law is the 'love of the wisdom of the law'. Dr. Jorge R. Coquia defines Philosophy
of law as a ‘quest of law’ and according to Prof. Antonio Estrada, it involves an understanding of
the place of state law in human life. Legal Philosophy (Jurisprudence) is a systematic study that
seeks to understand the nature and essence of law, its definition and elements, the sources of its
authority, its various applications & development, and its role in societies.
WHAT IS LEGAL PHILOSOPHY?
Legal Philosophy aka JURISPRUDENCE or the science and philosophy of law, concerns itself
with fundamental questions like what is law as such. It seeks to know the law’s true nature, its
ultimate goal and purpose. It delves into questions such as “What is the essence of law; What
problems and difficulties exist within a particular legal system and institution; and How does law
interact with the larger society within which it functions.”
FOUR ELEMENTS OF LAW
(1) REASONABLE ORDINANCE (rationis ordinatio) "Law must be just" - The chapter on
human relations is now precisely embedded in the New Civil Code in order to obtain stability of
the social order. Laws, as guides for human conduct, "should run as golden threads through
society, to the end that law may approach its supreme ideal which is the sway and dominance of
justice.
(2) FOR THE COMMON GOOD (bonus communis) "It is a rule of conduct" - Laws serve
as guides of an individual in relation to his fellowmen and to his community; "Laws must be
ordained for the common benefit" - This recognizes the famous Latin maxim of "Salus Populi
Est Suprema Lex"- the welfare of the people shall be the supreme law. Laws should be applied
not only to a particular group of citizens. They are supposed to be applied equally to all citizens
regardless of their religion, political persuasion, and status in life.
(3) PROMULGATED "It must be obligatory" - If laws are not enforced, the purpose for
which they are intended will not be served;
(4) BY LEGITIMATE AUTHORITY "Law must be prescribed by legitimate authority"
- If laws are not prescribed by legitimate authority, the people could not be expected to observe
them. Authority to make laws is conferred upon those duly chosen by the sovereign will of the
people.
This is in consonance with Sec. 1, Art. II of the Philippine Consti which says that "sovereignty
resides in the people and all government authority emanates from them".
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CLASSIFICATION OF LAW by SUAREZ
(1) NATURAL LAW - This law derives its force and authority from God. It is superior to other
laws. It is binding to the whole world, in all countries and at all times.  Physical Law -
Universal rule of action that governs the conduct and movement if things which are non-free and
material.  Moral Law - Set of rules which establishes what is right and what is wrong as
dictated by the human conscience and as inspired by the external law.
(2) POSITIVE LAW
 Divine Law: A. Divine Positive Law - Ten Commandment B. Divine Human Positive Law -
Commandments of the Church  Public Law: A. Constitutional Law - is the fundamental law of
the land which defines the powers of the government. B. Administrative Law - that law which
fixes the organization and determines the competence of the administrative authorities and which
regulates the methods by which the functions of the government are performed. C. International
Law - body of rules which regulates the community of nations. D. Private Law - body of rules
which creates duties, rights and obligations, and the means and methods of setting courts in
motion for the enforcement of a right or of a redress of wrong. - Substantive Private Law: those
rules which declare legal relations of litigants when the courts have been properly moved to
action upon facts duly presented to them. - Procedural or Adjective Private Law: refers to the
means and methods of setting the courts in motion, making the facts known to them and
effectuating their judgments.
CLASSIFICATION OF LAW by AQUINO
[1] SUBSTANTIVE LAW – Defines and creates certain rights. A law which creates defines or
regulates rights concerning life, liberty or property, or the powers of agencies and
instrumentalities for the administration of public affairs.
[2] PROCEDURAL LAW – Prescribes the manner on how we enforce or preserve our rights.
Such procedure is usually prescribed under what we call the RULES OF COURT as well as
other rules promulgated by administrative agencies and quasi- judicial bodies.
[3] STATUTORY LAW – Refers to enactments by a competent legislative body and is usually
manifested in a formal written instrument with the force and effect of law for its compliance.
BRANCHES OF LAW
DOMESTIC LAW - means each of the laws of (a) the Reference Entity, if such Reference
Entity is a Sovereign, or (b) the jurisdiction in which the Reference Entity is organised, if such
Reference Entity is not a Sovereign. It is applicable laws, ordinances and other regulations or
requirements in each Authority’s jurisdiction.
PUBLIC LAW - consists of all the rules of law relating to the organisation and functioning of
the State and to relations between public authorities and individuals.
*CONSTITUTIONAL LAW - is the set of legal rules relating to institutions through which
authority is established, transmitted or exercised in the State. The epithet "constitutional" comes
from the fact that the fundamental rules of this right are contained in a special document: the
Constitution.
*ADMINISTRATIVE LAW - is the body of law that governs the day-to-day management of
public affairs by administrative bodies.  TAX LAW - it is the financial legislation of the federal
or cantonal state that refers to the financial management of the state (mandatory law)  SOCIAL
LEGISLATION - its purpose is to protect the individual against the difficulties of life. It includes
labour law, which ensures the protection of the worker and his working conditions; social
insurance law, which organizes a security system against accidents at work and sickness, to
counter the consequences of age (old age insurance). This right helps individuals when they have
lost the support of their family.  ENVIRONMENTAL LEGISLATION - aims to protect the
environment that protects the living environment, to enact legal rules that affect environmental
protection, land use planning and building regulations.  PUBLIC SERVANTS' RIGHTS -
applies to all those who work in the public service.
*CRIMINAL LAW - is the body of law that organizes, by means of penalties, the repression of
violations of social order. An offence of active or passive behaviour, prohibited by law and
punishable according to its seriousness by a penalty. The penalty may consist of a fine and/or
imprisonment. It defines the offences and the conditions under which the penalties must be
applied Criminal law is essential to the life of the group and its future, which is why it already
appears in so-called "primitive" societies.
 PROCEDURAL LAW - refers to "all the rules governing the organisation and activity of the
courts [1] which apply the law". in a broad sense, it means all the forms to be respected for the
realization of a right or set of rules. in a narrow sense, procedural law refers more particularly to
judicial proceedings, also known as judicial law or procedural law. This law determines the
organisation of the courts, determines the form and rules according to which the competent court
must judge disputes [2]. Private judicial proceedings are the necessary complement to private
law. It is the law that prescribes the way to act. There are three types of procedures that are
primarily intended to define the different organs of justice:  Criminal - the rules of form are
strict in order to be a guarantee for the accused. The court is not free to do what it wants.
 Administrative - defines all the formalities for the correct application of the administrative
law that organises the organisation and competence of administrative courts  Civil law : also
called "private judicial law", it is the part of the procedure that denounces the rules governing
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LON FULLER
American legal philosopher, who criticized legal positivism and defended a secular and
procedural form of natural law theory. Fuller was a professor of Law at Harvard University for
many years, and is noted in American law for his contributions to both jurisprudence and the law
of contracts. His debate in 1958 with the prominent British legal philosopher H. L. A. Hart in the
Harvard Law Review (Vol. 71) was important in framing the modern conflict between legal
positivism and natural law theory. In his widely discussed 1964 book, The Morality of Law,
Fuller argues that all systems of law contain an "internal morality" that imposes on individuals a
presumptive obligation of obedience. Robert S. Summers said in 1984: "Fuller was one of the
four most important American legal theorists of the last hundred years".
WEEK 2
LAW AS RULES
A common misconception of law is it is but a set of rules and that when disputes arises, all a
judge does is find the right rule and apply it mechanically, even ruthlessly. This is how formalists
regard law. This definition had come under severe criticism. Some feel it is a reductionastic i
simplistic way of looking at law as it fails to take into account the totality and social context of
the law. In other words, it looks at law as rules and fails to consider the deeper - human or social
- factors why people violate the law, and the impact of the violation on the victim, the larger
society as well as the offender. Indeed, while the constitution mandates 'equal protection of the
laws', this did not prevent 19th century French satirist Anatole France from observing that the
law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in
the streets, and to steal bread.
LAW AS PROCESS
Law may also be regarded as a process, the rules being merely an aspect of the process. Laws are
not just statutes per se but the whole gamut of the life experiences of lawmakers, law enforcers,
law breakers or followers as well as lawyers, judges and legal theorists.
LAW AS CUSTOM
Custom, from Latin consuescere 'to be accustomed' is a society's habitually practiced conduct or
preferences. Custom, as conduct regulator, precede a formally legislated law, and many
principles in law had their origin in custom.
Law as rules and as process shall be connected harmoniously.
CHARACTERISTICS OF LAW
A. OBEDIENCE - is a common characteristic present in all types of law. The degree or freedom
to which a subject may disobey as well as the extent or coverage of the law is what differentiates
the various types of law. For instance, scientific or "natural" laws involve all things while human
laws are for man alone. The former cannot be violated; hence, the element of freedom or
morality is out of the question. They are inviolable.
B. GENERALITY - This principle sees laws as 'generally' rather than 'particularly' framed. The
rules mandating cars to stop at a red light or prohibiting speed beyond a limit applies to all and
without exception. The law would not focus on particular drivers, driving particular cars under
particular circumstances. The law
applies irregardless of the status of the driver. Under this principle, the law is the law regardless
of particular attendant circumstances. Also, from the point of view of generality, decisions on a
legal question are made in advance of the circumstances of the application.
C. PROMULGATION - In Aquinas Treatise on Law, he said that promulgation is essential and
refuted the three objections which argued that promulgation is not essential to law. The
objections raise three points: (a) natural law which has the character of law needs no
promulgation; (b) law's force affects not only those to whom the law is directly promulgated but
also those who were not parties to its promulgation, and (c) the force of the law extends to the
future and binds those unborn at the time the law was promulgated. Aquinas replied that (a)
natural law is promulgated; its promulgation can be gleaned from the fact that God instilled
natural law into the man's mind so this natural law can be known by him naturally; (b) those who
are not present during the law's promulgation are bound to observe the law in that they can be
notified by others of the law after it was promulgated; and (c) the durability if written characters
ensures that laws may be continually promulgated even to the future.
D. THE RULE OF LAW - is an established legal principle which posists that whenever a legal
issue presents itself, it must be decided by applying the accepted principles of law. In so doing,
the will and personal "discretion" of the judge is set aside, and he must apply the known
principles of law according to the will of the legislator. "Rule of Law" is a "principle of
governance" in which all persons, institutions and entities, public or private, including the State
itself, are "accountable to laws that are: 1. publicly promulgated; 2. equally enforced; 3.
independently adjudicated, and 4. consistent with international human rights norms & standards"
Rule of Law also requires adherence to the following legal principles: 1. supremacy of law, 2.
accountability to the law, 3. fairness in the application of the law; 4. separation of powers; 5.
participation in decision making; 6. legal certainty; 7. avoidance of arbitrariness; and 8.
procedural & legal transparency.
E. INTERNATIONAL LAW – Obedience of international law by member states is based on
the principle of reciprocity. This means a nation obeys because it wants other nations to do the
same, and it wants to be seen as a ‘law-abiding’ country by other nations
LAW AND RELIGION
From the time a legal system is born, religion has always been at it side. Embryotic law has
always been entangled with religious rituals and observances.
A. JEWISH LAW
1. Torah - considered as Jews written constitution which contains their book of laws. The Jewish
Torah, called Pentateuch by the Christians, are the first five books of the Old Testament. They
are ascribed to Moses. The Jews believe that by observing the guidelines laid down in the Torah,
they fulfill their part of the covenant with God. Commentaries on the Torah were written by
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Soferim or a group of interpreters who helped to keep Jewish law adequate for succeeding
generations, and to the new conditions of life to which they lived. 2. Mishna/ Mishnak - a
collection of commentaries on written Jewish law consisting of discussions among the Rabbis,
handed down orally from AD 70 to until about AD 200. While Mishna comments on the Torah,
Gemara comments on the Mishna. The two formed Talmud. The Talmud can be divided into the
halakha which are legal and ritual matters and the haggadah which are ethical, theological and
folklorist matters. 3. Responsa/ replies - is a new genre of Jewish juristic writing after the
Talmud. These are juridical guidance or opinions given by the rabbis on day to day details of
Jewish life. These were compiled by Jews from all over the world and now form several
thousands of volumes.
B. ISLAMIC LAW/ Shari'a - is believed by Muslims to be of divine origin, and is one of the
world's great legal system. Much of the Shari'a is derived from the Koran. The Koran supplied
the basic tenets and principles of Islamic Law but not the details.
C. CANON LAW - is a body of laws enacted by ecclesiastical authority for the administration
of the Roman Catholic church. In 1230, Gregory IX systematized and codified various church
laws. Together with additions by Bonifacio VIII and Clement V, Canon law represents the laws
of the Roman Catholic church under the title Corpus Juris Canonici until the promulgation of the
present Codex Juris Canonici by Benedict XV in 1917. In 1983, new canon law code was issued
by Pope John Paul II reducing the offenses carrying automatic excommunication, extending the
grounds of annulment of marriage, removing the ban on marriage with non- Catholics, and
banning trade union and other political activity by priests. Canon is derived from Greek word
'rule'. Canon law contributed important concepts to secular law which are still used up to the
present. These are principles on equity. good faith and morality in sexual and marital
relationships.
See Re: Letter of Tony Q Art. 2 Sec 6 - The separation of the State and the Church shall be
inviolable.
WEEK 3
JUSTICE
The relationship between law and justice has been well- established since antiquity. One of the
determinants of a good law is if it conforms to the principles of justice and fairness. 'Due
process', a bedrock principle in law is nothing but justice in action. The same holds true with
rules requiring fairness and fair play Classical Roman jurist Ulpian's statement on law sums up
the essence of justice, he said of the purpose of law: "These are the prescriptions of law: to live
honourably, not to hurt anyone, and to give everyone his due". 'lustia est constans est perpetua
voluntas suum cuique tribuedi'. Justice is the concept of a proper proportion between a person's
desserts (what is merited) and the good and bad things that befall or are alloted to him or her.
SIGNIFICANCE OF JUSTICE
For Hartmann, the primary significance of justice is its 'tendency to counteract the crude egoism
of the individual'. As regards, the good things of life the egoist's standpoint is everything for me,
whether anything remains over for others or not. Against this, justice maintains: not everything
for me but the same for myself and others. All grievous sinning against one's fellowmen,
whether against body, life, property, social status, repudiation or honour, finds in this
fundamental attitude a complete check.
ARISTOTLE ON JUSTICE
Aristotle like Plato, also defines justice as giving 'everyone his due'. This principle that every
individual must be given his due is the foundation of all kinds of order in the human world. It
may be said that true disorder in the world is brought about by inequity and injustice. For him,
justice is a 'mean'. A 'just action' is an 'intermediate' between acting unjustly and being unjustly
treated. This means that a just person gives everyone his due; conversely, an unjust person takes
more for himself of those which should have been given for others.
Aristotle also explains that justice is of two kinds, natural and conventional:  A rule of justice is
NATURAL that has the same validity everywhere, and does not depend on our accepting it or
not.  A rule is CONVENTIONAL that in the first instance may be settled in one way or the
other. While obedience to law is called "legal justice", there are situations where the law itselff
may, for any reason, become unjust. This is where equity comes, in order to rectify legal justice.
This rectification based on equity is in turn based on higher principles of natural law and
exchanging principles of justice and fairness.
JUSTICE AS OBEDIENCE TO A HIGHER LAW
For Cicero, obedience to the supreme or higher moral law exist if in the process it violates
human law is to pay homage to the justice.
See Calalang vs. Williams (1940) and Curammeng vs. People (2016)
CLASS DISCUSSION ON JUSTICE
 Justice means different to different scenarios  Justice may be subjective  Law is intended to
attain justice  The purpose of the law is to have an order  But sometimes, what is fair to you
becomes unfair to me  Injustice impedes acceptance  But justice means fairness. It shouldn’t
be subjective.  There must be a process to attain justice  It’s not only dependent on the
outcome  We conclude that Justice is indifferent in various several perspective  “To be just is
the greatest teaching of Islam”  Divine shall be looked upon. It should be greater than the
Human Law. Justice must conform with higher laws  In the study of justice, why do people
care about justice? 1. To avoid injustice 2. For their personal interest 3. How person is valued.
Self-worth within a group 4. Morality of people – Stability in Social structure and environment.
JUSTICE AS CHARACTER As justice’s subjective aspect, this quality of justice habitually
disposes a person to consider the needs and well-being of others simultaneous with or even
before one’s needs. And this he does voluntarily and with joy. Once justice is embedded in a
person’s character, his eyes get opened to the needs and rights of others and he would develop
the skills to respond to others needs fairly
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whether or not there is probable cause (reasonable ground) to prosecute the respondent in court.
If they found probable cause, they lodge a criminal charge against the respondent before the
court. Otherwise, they dismiss the case.  Once the criminal case is filed in court, the court
issues a warrant of arrest against the accused (if he was not caught in the act of committing the
crime) or commitment order (if the accused was caught in the act of committing the crime and he
has not yet posted bail or the offense is non-bailable because the crime is punishable by life
imprisonment, reclusion perpetua or death).  The prosecutor ([fiscal] from the DOJ for crimes
committed by non-government people, or from the Ombudsman for crimes committed by
government people, although the fiscals can prosecute criminal cases against government people
under the continuing authority of the Office of the Ombudsman) now stands as the lawyer for the
State (People of the Philippines) and prosecute the case. The victim, the law enforcer (who
investigated the crime) and other witnesses will now testify in court. The defense counsel will
defend the accused. After the trial, the court will now decide whether or not the accused is guilty.
If he is, then he shall be penalized (fine, or imprisonment, or both). If he is not, he shall be
acquitted (set free).
IV – THE COURTS:
 To this group belongs the Municipal Trial Courts (for crimes punishable by imprisonment not
exceeding six (6) years), the Shari’a Circuit Courts in the ARMM (for criminal violations of the
Muslim Code), the Regional Trial Courts (for crimes punishable by imprisonment of more than
six years, and appeals from the decisions of the Municipal Trial Courts), the Sandiganbayan (for
crimes committed by government officials with salary grade 27 and above regardless of the
penalty prescribed for the offense charged, and appeals from the decisions of the Regional Trial
Court in criminal cases against government employees below salary grade 27), the Court of
Appeals (for appeals from the decisions of the Regional Trial Courts in criminal cases against
non- government people), and the Supreme Court (for appeals from the decisions of the Court of
Appeals, Sandiganbayan and automatic review of decisions of the Regional Trial Courts and the
Sandiganbayan where the penalty imposed is reclusion perpetua or death).
V – CORRECTIONS:  To this group belong the various Jails (Municipal, City and Provincial
Jails), the Bureau of Corrections (in Muntinlupa) and other correctional facilities. While the
criminal case is pending in court, the accused shall be detained at the Municipal, City or
Provincial Jail unless he posts a bail bond for his provisional liberty and if the offense is bailable.
After conviction, the convict will be sent to the Bureau of Corrections to serve his sentence. 
Our criminal justice being also a corrective one, the correction officials are mandated to see to it
that the convict is reformed and is able to re-integrate himself into the community after serving
his sentence.
WEEK 4
LEGAL PHILOSOPHY AND THE COURTS
According to Justice Azcuna, the Court must decide, however the extent of its own jurisdiction
particularly vis-à-vis the Legislature is the manifestation of the need for a rule of recognition that
for itself is demanded by the existence of legal system.
JUSTIFIABILITY  Justifiability is about having sufficient grounds for justification.  Those
are actions that can be justified.  Accepted because it has good reason.
CONTEMPT – power of legislature to punish and detain the accused but not indefinitely.
JUSTICIABILITY  Justiciability limits the reach of judicial power. What is not justiciable is
beyond the province of the courts. On the other hand, it enhances it, for whether or not an issue is
justiciable or political (to use its classic antonym) is itself a justiciable question.  Answers the
question “Can it be subject for legal review?”  Answers the question “Can it be evaluated by
the court?”  Justiciability at the same time must be the salutary reminder to the judge and
community alike that it is the force of the law that brings debate between contending parties (the
exchange of briefs and memoranda, pleadings and rejoinders) to end, an exchange and a debate
that could very well go indefinitely.  Justiciability therefore is the pursuit of justice through the
protest against injustice.
REQUISITES OF A JUDICIAL INQUIRY: 1. There must be an actual case or
controversy  Actual case involves conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial resolution. The case must not be moot or academic or based on extra-legal
or other similar considerations not cognizable by a court of justice.  We do not deal with
abstract issue.  You do not go to court asking for a hypothetical question. 2. The question of
constitutionality must be raised by the proper party  There must be Locus Standi to
question constitutionality.
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 The one who has sustained or is in immediate danger of sustaining an injury as a result of the
act complained of. 3. The constitutional question must be raised at the earliest possible
opportunity  If it is not raised at the earliest possible opportunity, such that if it is not raised in
the pleadings, it cannot be considered at the trial, and if not considered at the trial, it cannot be
considered on appeal.  Exceptions: 1. In criminal cases, the constitutional question can be
raised at any time in the discretion of the court. 2. In civil cases, the constitutional question can
be raised at any stage if it is necessary to the determination of the case itself. 3. In every case,
except where there is estoppel, the constitutional question may be raised at any stage if it
involves the jurisdiction of the court. 4. The decision of the constitutional question must be
necessary to the determination of the case itself.  The reason why courts will as much as
possible avoid the decision of a constitutional question can be traced to the doctrine of separation
of powers which enjoins upon each department a proper respect for the acts of the other
departments.
EXCEPTIONS ON REQUIREMENTS OF JUSTICIABILITY:
1. Grave constitutional violations;
2. Exceptional character of the case;
3. Paramount public interest;\The case presents an opportunity to guide the bench, the bar, and the
public; or
4. The case is capable of repetition yet evading review.
RICOEUR FINDS 4 CONDITIONS FOR THE ACT OF JUDGING IN ITS JUDICIAL
FORM – FOR JUSTICIABILITY. 1. Existence of written law 2. The presence of an
institutional framework (courts, appeal courts, etc. 3. The invention of qualified, competent,
independent persons who are charged with judging 4. A course of action constituted by the trial
or judicial process, where the pronouncement of judgement constitutes the endpoint.
JUDICIAL POWER is the authority to settle justiciable controversies or disputes involving
rights that are enforceable and demandable before the courts of justice or the redress of wrongs
for violations of such rights.  Vested in the Supreme Court and such lower courts as may be
established by law. JUDICIAL POWER INCLUDES:  The duty of the courts to settle actual
controversies involving rights which are legally demandable and enforceable; and  To
determine whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the government. A ‘ POLITICAL
QUESTION ’ is one the resolution of which has been vested by the Constitution exclusively in
either the people, in the exercise of their sovereign capacity, or in which full discretionary
authority has been delegated to a co-equal branch of the Government.  Thus, while courts can
determine questions of legality with respect to governmental action, they cannot review
government policy and the wisdom thereof, for
these questions have been vested by the Constitution in the Executive and Legislative
Departments.
JUSTICE: THE INDECONSTRUCTIBLE THAT SUMMONS
DECONSTRUCTION
(See Salvacion vs Central Bank) The ponente in that case states “The application of the law
depends on the extent of its justice”. On this premise, the Court examined the context and the
purpose of the law exempting foreign currency deposits from garnishment and found that it was
aimed at encouraging into our economy, not the protection of transient criminals from the reach
of criminal justice. The point is clear. In post-modern terms, what urges a deconstruction – not
necessarily an amendment or repeal – of the law is the justice the law endeavors to achieve. “To
discover the original intent of a statute, courts become the unfeeling pillars of the status quo.
Little do we realize that statutes or even constitutions are bundles of compromises thrown our
way by their framers.
Deconstruction is justice. It is perhaps because law is constructible, in a sense that goes beyond
the opposition between convention and nature, it is perhaps insofar as it goes beyond the
opposition that it is constructible, and so deconstructible, and what’s more, that it makes
deconstruction possible, or atleast the practice of a deconstruction that, fundamentally, always
proceeds to questions of droit and to the subject of droit: 1. The deconstructibility of law, of
legality, legitimacy or legitimation makes deconstruction possible. 2. The underconstructibility
of justice also makes deconstruction possible, indeed, is inseparable from it. 3. The result;
deconstruction takes place in the interval that separates the undeconstructiblity of justice from
the deconstructibility of (authority, legitimacy and so on).
See Balag vs Senate & Salvacion vs Centrak Bank
WEEK 5
LEGAL AND PHILOSOPHICAL ISSUES
Not Sure
LAW AND TRUTH
Not Sure
LAW, AUTHORITY AND FORCE
Justice, without force, is impotent. — Blaise Pascal, Pensees ● According to Max Weber, in
Politics as a Vocation, there are three ways how authority establishes itself in society: charisma,
tradition, and law. Weber referred to “charisma,” meaning “grace” in Greek, as the personal
ascendancy that an individual gains in a society through his passion and determination for a
cause or a mission, and his success gives him an aura of legitimacy. Through skills and
persuasion, charismatics exude a mass hypnotic effect. For good or bad, the list includes the likes
of Alexander the Great, Julius Caesar, Napoleon Bonaparte, Adolf Hitler, and Josef Stalin. ● The
second form, by tradition, is where the authority from a leader, due to his magnanimity or extent
of influence in a society, is passed on to his successors or heirs. Society has made the leader its
center and identity, and will want to keep him alive through his descendants who supposed to
bear his qualities. Founders are usually given this entitlement and their influences are
institutionalized through forms of monarchies, dynasties, or petty kingdoms.
----PHILOSOPHY OF LAW NOTES---
positive freedom, which is self-control or rational mastery over one’s appetites. Negative liberty
is the absence of coercive and preventive threats, while positive liberty is the ability of an
individual to be his own master and to do what he thinks best. ● True freedom takes into account
both permissibility and possibility. Authentic freedom does not only mean you are allowed, but
you are able. Law, in this case, must not only consent or tolerate but also empower. There is no
freedom of action even if nothing stops you from doing what you want if you have no control
over what you want, especially if you do not have the means. ● The degree of freedom the law
can provide may vary upon the capacity and responsibility of persons. For example, a minor or a
lunatic will need a guardian, because he cannot really decide for himself and exercise positive
liberty. Negative liberty will be deprived to those who commit crimes in order to prevent them
from harming and violating others’ liberty. ● Under this paradigm, choice is a value so we can
have alternative plans in life. Law should only prohibit one from harming others, not even from
harming oneself (“harm principle”). There should be minimal state intervention in the lives of
citizens (“libertarianism”). A person has complete dominion over what he wills for his body, his
life, and his property. In other words, “your life, your choice.”
● Freedom with Duty Totalitarian and authoritarian regimes and on one hand, traditional, and
paternalistic institutions, view liberty as freedom only to do good and fulfill duties.
Individualistic, self interested, or anti-social behavior must be restrained. For the Chinese, all
citizens are “under one heaven” and liberty must be exercised to promote the good of all. Man is
capable of so much good but also so much evil, and the latter must be checked by law.
Disciplinary law must restrain unnatural, self-destructive, and unproductive desires and
impulses. Social cooperation is needed in a healthy society, and this includes fulfilling social
duties for the good of all, including the personal good of oneself.
LAW, GUILT AND PERSONAL LIABILITY
● Freedom and responsibility are issues in criminal liability. An element of criminal liability is
voluntariness, also called as “free action.” Since a person will commit or omit as he thinks right,
the presence of malice or good will does not matter much so long as an act is deliberate. ●
Although bad faith is a factor in aggravating penalties, the road to hell can be paved with good
intentions. Whatever one’s motivation, one must be responsible for what one made or made not
happen willingly. ● Deliberation or voluntariness is the key. Aristotle noted that there are two
main causes of how an act becomes involuntary: ignorance and compulsion. Ignorance is lack of
knowledge or awareness of what one is doing or not doing. In compulsion, however, one is
forced to do something he would not have done, such as when a gun is pointed into one’s head. ●
“Determinism” is the theory that all events are caused by antecedent conditions and people do
not have much free will, but are like complex machines subject to various external and internal
stimuli. Mental deficiencies, heredity, hormonal imbalances, psychological lapses, biological
instincts, physical needs, traumas and syndromes, social conditioning, customs and traditions,
parental training, peer influence, environmental conditions, and pass-on political and religious
beliefs, can all “conspire” to make a person commit the perfect crime. ● Quantum consciousness
says that things are not mechanistic as they are supposed to be, but there is an element of chance
and microcosmic human influence in the turn of events. Human consciousness can affect the
behavior of the smallest particles of matter.
● A version of “soft determinism” or “compatibilism” insists that freedom is compatible with
internal and external determinants. ● The antecedent factors give us alternatives of action and
tendencies but our character elects what we will decide to do. It will be absurd that external
factors will be considered but not one’s personal agency. The blame game never ends. We can
always rise out of our circumstances, especially adults psychologically capable of consent. If we
deny free will, and maintain that freedom is an illusion, then we may as well deny freedom too.
● In civil damages, the standard is even “strict liability,” regardless of whether the cause of a
damage is fully deliberate, one is responsible if one has been the proximate cause without which
the damaging event, in the ordinary course of things and with due care, would not arise. Strict
liability prevents defenses and justifications based on still debatable theories of human free will.
See Sta. Maria vs Lopez, Vargas vs Rilloraza, Disni vs Sec of Justice, and Villanueva vs Judicial
Bar
WEEK 6
THEORIES OF LAW
Legal Theory is an inquiry into the nature of law. When law students develop a legal thesis, or
when lawyers, judges, and justices write arguments or opinions, it is important to know from
what theory one is dissecting a question of law. The following are major legal methodologies on
the origin and nature of laws, and how they interplay within the Philippine legal system.
A. Natural Law Theory - The teleological school looks into the principles, purpose, and end
(telos) of the law. It goes to the question of the why of the law. The proponents of this school
believe that the law serves a higher universal order based on a “natural order,” which we can
discover through our common human reason and validated by human experience. Natural law is
an example of “normative jurisprudence,” which evaluates the purposes or norms behind the law.
Laws are rules for man to realize his basic natural goods and when shared, become society’s
common good. According to natural law, nature is how people normally behave and is expected
to behave. Human nature, in particular, is rational. The law is law as long as it pursues the
precepts of reason: reasonableness, justice, equality, and fairness. For instance, the law may be
stricken down for being unreasonable or unjust. The jurist appeals to a higher law, that is, the
principles of rational or moral law in the absence of a law or in the presence of a bad law.
B. Positivist Theory - Positivists are positive on what the law “posits” by the authority given to
the State or by socially accepted rules. Also known as “the command theory,” positivism
highlights obedience to the content and expression of the law with the adage “dura lex, sed lex”
(the law is hard, but that is the law) and “quod principi placuit legis habet vigorem” (whatever
pleases the prince has the force of law). As our hero, Jose Rizal, said in his essay The
Philippines: A Century Hence: “Law has no skin, reason has no nostrils.” Positivism is also
referred as “conventionalism.” Law is purely a product of human will, not of some natural law or
divine will. Laws are made out of explicit or implicit agreements, treaties, or conventions in
society, not due to some extra-legal reality like natural rights, divine providence, etc. although
the agreement may mention these concepts. There is no underlying substance, principle, or
content that the law must conform. It need only be procedurally correct to be valid.
----PHILOSOPHY OF LAW NOTES---
While natural law theory is normative jurisprudence for “what the law ought to be” (lex ferenda),
positivism is “analytic jurisprudence” that studies and recognizes law simply for “what it is” (lex
lata). No ifs or buts or referents to judge the law other than the law itself. For positivists, all the
other approaches to law (natural law, sociological, pragmatic) are wrong for confusing “what
ought” with “what is,” which positivists describe as the “overlap thesis” or “isought fallacy.”
Until nullified or amended, one cannot dismiss the law based on what it should be according to
some non-legal standards — for being immoral, inefficient, irrational, imprudent, or impractical.
Thus, when lawyers make or unmake legal arguments, they can only cite the law, and citing the
Bible or non-legal authorities will not hold water.
C. Constructivist Theory - The interpretivist school, as conceived by Ronald Dworkin —
Hart’s nemesis and successor as chair of Jurisprudence at Oxford — points that the law is more
than explicitly adopted rules. It has merits or principles behind them that can be “interpreted” or
“constructed” by the courts. It is a rights-based, pro-active construction of the law, against the
by- the-rule reading of the law in positivism. There are two dimensions of legal interpretation:
the formal and the substantive. In the formal dimension, we look for logical consistency between
principles and past decisions. In the substantive dimension, we look for principles that best
“explain” or “justify” the law, which is construed as having a moral rights- based dimension. It is
the “integrity of the law” that entitles it to a claim to our obedience. A law is not integral when it
is not consistent (formal) and when it goes against substantial rights and principles (substantive).
Positivism is wrong since it only requires that the law be formally recognized or claimed as law,
without going into the merits of the law. We do actually criticize laws based on principles, for
being “unreasonable,” “unjust,” “unnecessary,” or “irrelevant.” At this point, the interpretivist
approach is akin to the teleological approach, but Dworkin thought principles and rights are not
something already laid down by natural law, but something still to be “constructed” by the
adjudication of judges, faced by novel claims to “best accommodate the community’s common
convictions,” which he called the “best fit theory.” Adjudication is not “fixed” or “objective” but
develops according to contemporary standing or practice. But again, neither is adjudication
subjective or relative.
D. Realist Theory - The realist school, sometimes labeled as “pragmatic jurisprudence,” focuses
on these human realities that are often overlooked by hard law, technicalities, and abstract
policies. It brings significance into the question of implementation and whether the law reflects
practical experience. It tells the law and law practitioners to get real. For example, that taxes
must be administratively feasible and statutes enforceable. This school raises the question of
whether the law can be verified by experience. Justice Oliver Wendell Holmes Jr. was an
avowed proponent of judicial legal realism. Having practiced commercial law, he knew the
effects of impractical legal regimes against the economy and the market. He believed that the law
should not even be considered as a system of reason, of ethical principles and axioms, of what
not. Holmes explained that nearly every man wants to avoid disobeying the law when confronted
with disagreeable consequences (bad man perspective), but not all would obey the law for its
sake even if without consequences (good man perspective). This is why the point of view of the
bad man is a better way to ensure that everyone will obey. Law is determined by the actual
practices of courts, law officers, and law enforcers; by real world practice. Human factors and
realities are unavoidable in hard cases, and judges must be able to take these into consideration.
Decisions must be based on the judge’s idea of justice, conditioned by his values, background,
and acquaintance with social forces. In Holmes’ words, “the life of the law has not been logic, it
has been experience.” (The Common Law, 1). As a social Darwinist, he believed that life is a
struggle to build a superior race, rather than a pursuit of ethical humanitarian values.
E. Critical Theory - Critical Legal Theory questions the law’s assumptions, such as the
assumption that the people are free, and that the market is free. Rather, people’s choices and the
market’s behavior are already conditioned by economic, social, ideological, and political forces,
or the present “hegemony.” This theory also exposes the inconsistencies, inhumanities, and
imperialism of First World Western democracies. The clout of the Western superpowers prevents
former colonies from seeing the flaws in their legal systems that are being adopted globally.
Critical legal theory is associated with subversives as it aims for a “deconstruction” of the law
and uses the “hermeneutics of suspicion” to advance marginalized causes. Among the offshoot of
the critical legal theory are “critical feminist theory,” “critical race theory,” and
“postmodernism.”
See Republic vs Sandiganbayan
WEEK 7
THE NATURAL LAW THEORY
According to natural law, nature is how people normally behave and is expected to behave.
Human nature, in particular, is rational. The law is law as long as it pursues the precepts of
reason: reasonableness, justice, equality, and fairness. For instance, the law may be stricken
down for being unreasonable or unjust. The jurist appeals to a higher law, that is, the principles
of rational or moral law in the absence of a law or in the presence of a bad law.
PHASES OF NATURAL THEORY
● Natural law theory has undergone distinct developments. First is its Classical Phase by
ancient Greek and Roman philosophers who believed that human reason is common among men
and along with this, the common precepts of right law and equity. Examples are Plato and
Aristotle’s works on virtue ethics, called “virtue jurisprudence.” Another is the Antigone by
Sophocles. ● Next came the Scholastic Phase that taught that natural law is man’s participation
with eternal law. It was called “Thomism” in reference to the philosophy of St. Thomas Aquinas,
as adopted by the Catholic Church. ● Third is the Enlightenment or Modern Phase that used
natural la w as a basis for natural rights and duties. Immanuel Kant reformulated the Golden
Rule into the “categorical imperative” of always acting the way one would like his act to be the
universal rule, also called as “deontology.” ● Fourth is the International Law Phase in reference
to general principles of law and international rights, a common law for all nations of men. Hugo
Grotius, Francisco de Vitoria, and Francisco Suarez set the stage for reformulating natural law as
the law of all men. Notably, Article 38 of the Statute of the International Court of Justice
includes “general principles of law recognized by civilized nations” among the five sources of
international law.
NATURAL LAW AND NATURAL RIGHTS
● It’s on the third phase of natural theory: The Enlightenment or Modern Phase that used natural
law as a basis for natural rights and duties. Immanuel Kant reformulated the Golden Rule into
----PHILOSOPHY OF LAW NOTES---
then the neighborhood village, then the polis or city-state. All these institutions are natural since
no man is self-sufficient. Man is given the faculty of language because he needs to socialize
effectively. ● Aristotle distinguished six types of constitutions. The first three are monarchy
(one-man rule), aristocracy (rule of few good men), and polity (rule of men with equal merits).
Their worst forms are the last three: tyranny, oligarchy, and radical democracy. Polity or
democracy is the most stable since monarchy risks the intemperance of its leader, while rivalries
and infighting hound an aristocracy. The aim of a good state is “the good life,” with the middle
class as the basis of progress. Democracies are more secure when there is a large number of
empowered middle class than when a population is divided into the extremes of poor and rich.
Both the rich and the poor classes have the tendency to inequity. ● A good government
establishes a political law that conforms with rational principles of right and equity. There must
be a constitution (politeia) that provides general rules and guidelines on the administration of the
State. But for the particulars of the organization of offices, the contingencies of life, and for
settlement of future disputes, laws (nomos) must be promulgated.
ST. THOMAS AQUINAS (HIS PERSONAL AND
PROFESSIONAL BACKGROUND; CHIEF LEGAL
PHILOSOPHY/ IES)
● St. Thomas Aguinas was an Italian Dominican friar, philosopher, Catholic priest, and Doctor
of the Church. An immensely influential philosopher, theologian, and jurist in the tradition of
scholasticism, he is also known within the latter as the Doctor Angelicus and the Doctor
Communis. The name Aquinas identifies his ancestral origins in the county of Aquino in present-
day Lazio, Italy. He was the foremost classical proponent of natural theology and the father of
Thomism; of which he argued that reason is found in God. His influence on Western thought is
considerable, and much of modern philosophy developed or opposed his ideas, particularly in the
areas of ethics, natural law, metaphysics, and political theory. ● According to Thomas Aquinas,
the universe is governed by Divine Reason through an eternal law. Everything that is part of the
universe partakes of the eternal law. The eternal law particular to humans is called “natural law.”
By the nature of man, he will know what he ought to be and ought to do. ● Aquinas’ philosophy,
in the words of Joseph Glanvil, is “Aristotle sainted.” Thanks to Islamic commentators like
Averroes, Aquinas was able to get hold of the works of Aristotle and adopt its natural philosophy
to Christian doctrine in his five- volume work, Summa Theologica. ● What differentiates
Aquinas from Aristotle and the secular philosophers of natural law is his argument for the
necessity of divine law, or law coming from divine revelation. While natural law is enough to
guide man to his “natural ends,” divine law is needed for him to realize his “supernatural ends.”
Because of the uncertainty of human reason and the variety of philosophies, Aquinas argued that
God has to reveal his true nature through sacred inspiration and interventions in history. Human
law and justice are also not always effective or correct, so there must be a divine law to which
people can ultimately appeal to. ● In Question 94 of the Summa, Aquinas explained that the
precepts of natural law refer to five natural inclinations. Our primary inclination is to do good
and avoid evil; by good, meaning that which helps sustain our being, towards self- preservation,
which is the secondary inclination. The third natural inclination is to perpetuate ourselves, which
is why we have sexual instincts that are meant for procreation. Yet even if lust is natural, so are
shame and self-restraint, and the exercise of reason to control sexual passions. The fourth is to
live in
community with other men, in families, groups, and societies. The fifth is to use our reason and
will, that is, to know the truth and to make our own decisions.
CRITICISMS OF THE NATURAL LAW THEORY
● The representatives of the French people, constituted in a National Assembly, considering that
ignorance, oblivion or contempt of the Rights of Man are the only causes of public misfortunes
and of the corruption of governments, have resolved to lay down in a solemn Declaration, the
natural, inalienable and sacred Rights of Man, in order that this Declaration, being always before
all the members of the Social Body, should constantly remind them of their Rights and their
Duties.. .” (emphasis supplied) ● Thereafter, the phrase “rights of man” gradually replaced
“natural rights” in the latter period of the eighteenth century, thus removing the theological
assumptions of medieval natural law theories. After the American and French Revolutions, the
doctrine of the rights of man became embodied not only in succinct declarations of rights, but
also in new constitutions which emphasized the need to uphold the natural rights of the
individual citizen against other individuals and particularly against the state itself. ●
Considerable criticism was, however, hurled against natural law and natural rights theories,
especially by the logical positivist thinkers, as these theories were not empirically verifiable.
Nevertheless, the concept of natural rights or rights of man regained force and influence in the
1940s because of the growing awareness of the wide scale violation of such rights perpetrated by
the Nazi dictatorship in Germany. The British leader Winston Churchill and the American leader
Franklin Roosevelt stated in the preface of their Atlantic Charter in 1942 that “complete victory
over their enemies is essential to decent life, liberty, independence and religious freedom, and to
preserve human rights and justice, in their own land as well as in other lands.” (emphasis
supplied) This time, natural right was recast in the idea of “human rights” which belong to every
human being by virtue of his or her humanity. The idea superseded the traditional concept of
rights based on notions of God-given natural law and of social contract. Instead, the refurbished
idea of “human rights” was based on the assumption that each individual person was entitled to
an equal degree of respect as a human being.
See ADMU vs Capulong, Tecson vs COMELEC, and People vs Velasco
WEEK 8
THE POSITIVIST THEORY
In sharp contrast to natural law is the positivist view of law, which developed in the 19th Century
with the rise of colonization by powerful states over weaker states. Under the positivist view,
there is no law beyond that made by humans. There is no such thing as an innately moral natural
law; neither is there a divine law.
POSITIVIST THEORY VS. NATURAL THEORY
● While natural law theory is normative jurisprudence for “what the law ought to be” (lex
ferenda), positivism is “analytic jurisprudence” that studies and recognizes law simply for “what
it is” (lex lata). No ifs or buts or referents to judge the law other than the law itself. For
positivists, all the other approaches to law (natural law, sociological, pragmatic) are wrong for
confusing “what ought” with “what is,” which positivists describe as the “overlap thesis” or
“isought fallacy.” Until nullified or amended,
----PHILOSOPHY OF LAW NOTES---
one cannot dismiss the law based on what it should be according to some non-legal standards —
for being immoral, inefficient, irrational, imprudent, or impractical. Thus, when lawyers make or
unmake legal arguments, they can only cite the law, and citing the Bible or non-legal authorities
will not hold water. ● The lawyer Jeremy Bentham, the father or modern utilitarianism, and his
student John Austin, also popularized positivism. Bentham called natural law “nonsense upon
stilts,” and distinguished the “expositors” of the law (those who explain the law for what it really
is) from the “censors” (those who criticize the law in relation to non-legal notions). ● The
difference between positivist theory and natural law theory is that the former believes that rights
are conventional, borne from deliberate positive acts of rulers and subjects, whereas for the
latter, rights are natural and inherent.
H. HART (HIS PERSONAL AND PROFESSIONAL
BACKGROUND; CHIEF LEGAL PHILOSOPHY/ IES)
● Herbert Lionel Adolphus Hart usually cited as H. L. A. Hart, was a British legal philosopher,
and a major figure in political and legal philosophy. He was Professor of Jurisprudence at Oxford
University and the Principal of Brasenose College, Oxford. His most famous work is The
Concept of Law (1961; 3rd edition, 2012), which has been hailed as "the most important work of
legal philosophy written in the twentieth century".[2] He is considered one of the world's
foremost legal philosophers in the twentieth century, alongside Hans Kelsen. ● He presented a
different evolution of law, contrary to naturalists who trace human law to natural law, with his
version of “soft positivism” in The Concept of Law. For Hart, law is a system of “social rules.”
Tribal societies, being closely knit and related, started first with a “regime of primary rules”
(rules of conduct) where the sanctions for misbehaviors were made through indeterminate
means of social pressure and conformity. ● This regime of unofficial rules has three defects:
first, doubts arose as to the precise scope of the rules as there was no authoritative reference,
such as through a declaration or text; second, the static traditional character of the rules as
there were no means to deliberately abrogate defunct customary rules; and third, the absence of
an official and consistent monopoly of sanctions. ● To remedy these flaws, early societies
entered a “legal regime” that has three characteristics: first, the creation of an authoritative list or
text of rules written in a document or carved in a public monument to be recognized as
conclusive and valid (“rule of recognition”). This disposes doubts on whether a rule exists as
there is now a written reference to cite or appeal to. Second, a reference to legislation to make
and repeal rules (“rules of change”). Third, a procedure to be followed to resolve legal disputes
(“rules of adjudication”). ● The rule of recognition, say, via a Constitution, is its own measure. It
is like a standard meter, which provides the ways for supplying legal validity. The law is valid as
long as it satisfies the criterion of being characterized as law. The law is “open- textured,” or
there is room for discretion only as the law says so.
JOHN AUSTIN (HIS PERSONAL AND PROFESSIONAL
BACKGROUND; CHIEF LEGAL PHILOSOPHY/ IES)
● John Austin was an English legal theorist who influenced British and American law with his
analytical approach to jurisprudence and his theory of legal positivism.[1] In opposing traditional
approaches of "natural law", Austin argued against any necessity for connections between law
and morality. Human legal systems, he claimed, can and should be studied in an empirical,
value-free way.
● He articulated the command theory of law. Austin believes that laws are commands from a
sovereign backed by the threat of punishment. Sanction may come from parliament, the court, or
any one with authority. He also wrote that in order to interpret a legal system, one must first
identify a sovereign, or a person or group of people who habitually obeys no one, whose
commands are habitually obeyed. ● He held that the relationship between law and morality is
only accidental and that the law is its own criterion. Law ushers its own majesty and command
without need for moral reference. A developed legal system where unqualified allegiance is paid
is a mark of an independent state system. As a separate science, it will be enough to cite the law.
● Other proponents of positivism include Hans Kelsen, who wanted to separate “legal science”
from “legal politics,” which evaluates law based on what is politically correct.
CRITICISMS OF THE POSITIVIST THEORY
The positivist approach has been criticized for its tendency to legalism, formalism, and uncritical
obedience to authority, which served dictatorial regimes. For example, during the Nazi regime,
laws were passed to exterminate the Jews, and the Nazis would raise the defense that they were
only following what was then valid official law.
See Republic vs Sandiganbayan & Cheng vs Sps Donini
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/LASIMPAO/2020/
----PHILOSOPHY OF LAW NOTES---
WEEK 1

WHAT IS LAW?

● LAW is a rule of conduct, recognized by custom or by formal

enactment, which a community considers as binding upon its
members.
● STANFORD ENCYCLODEIA OF PHILOSOPHY: Law is a "complex
social phenomenon" and "one of the most intricate aspects of
human conduct." But it is not the only 'source' of normative
conduct for there is also religion, morality, custom, and
convention. Law is certainly connected with the other sources of
normative behavior but at the same time it is distinct from them.
In fact, religion, morality, equality, custom and societal
conventions are among the sources of law.
● CIERO: Law is a natural force, the highest reason one implanted
in Nature, which commands what ought to be done and forbids
the opposite. It is the mind and reason of the intelligent man
whose natural function is to command right and forbid
wrongdoing.
● AQUINAS: Law is a rule of measure of human acts pertaining to
reason. Law is an all those things that are inclined to something.
● SUPREME COURT: Law is a rule established to guide our actions
with no binding effect until it is enacted; thus it has no
application to past times but only to future time.
● GENERAL & ABSTRACT SENSE: Law is the science of moral laws
founded on the rational nature of man that governs his free
activity for the realization of the individual and societal ends of
life.
● SPECIFIC SENSE: Law is a rule if conduct, just, obligatory,
formulated by legitimate power for common observance and
benefit.

WHAT IS PHILOSOPHY?

● PHILOSOPHY means love of wisdom or the search for truth. It

comes from the Greek term 'Philosophia', which derived from
'Philos' (Love) or 'Philia' (Friendship/ Affection/ Affinity for/
Attraction towards) and 'Sophia' (Wisdom/ Knowledge/ Skill/
Intelligence). It is the search for the reality and truth of things. It
seeks to discover the essence, nature & foundation of things, as
opposed to their appearance. Philosophy endeavors to
understand fundamental truths about people, the world, and the
relationship of people to the world and of people to one another.
● Philosophy is the search for meaning.
● FR. AQUINO: Philosophy is
 A knowledge of things by their ultimate causes or
reasons (per ultimas causas vel rationes). It deals with
the final causes, the ultimate causes or the prima
principia that is something that deals with fundamental
beginnings, first principles and basic elements.
 Provides the person with a map that gives coherence to
his activities and that makes of human life a meaningful
whole
 Something that uncovers the meaning of phenomena.
● SOCRATES: Philosophy is an exercise of reason. “We are
discussing no small matter, but how we ought to live”
● KOLAK & MARTIN: Philosophy is an axe. In its attempt to gain
deeper levels of understanding, it must continually question
everything we believe in.

WHAT IS PHILOSOPHY OF LAW?

Philosophy of law is a branch of philosophy that examines the

nature of law and law's relationship to other systems of norms,
especially ethics and political philosophy. It asks questions like
"What is law?", "What are the criteria for legal validity?", and
"What is the relationship between law and morality?" Philosophy
of law and jurisprudence are often used interchangeably, though
jurisprudence sometimes encompasses forms of reasoning that
fit into economics or sociology. Philosophy of law can be sub-
divided into analytical jurisprudence and normative
jurisprudence. Analytical jurisprudence aims to define what law is
and what it is not by identifying law's essential features.
Normative jurisprudence investigates both the non-legal norms
that shape law and the legal norms that are generated by law
and guide human action.

See Duran vs. Abad Santos

PHILOSOPHY OF LAW VS. LEGAL PHILOSOPHY:

Philosophy of Law is the 'love of the wisdom of the law'. Dr. Jorge
R. Coquia defines Philosophy of law as a ‘quest of law’ and
according to Prof. Antonio Estrada, it involves an understanding
of the place of state law in human life. Legal Philosophy
(Jurisprudence) is a systematic study that seeks to understand
the nature and essence of law, its definition and elements, the
sources of its authority, its various applications & development,
and its role in societies.

WHAT IS LEGAL PHILOSOPHY?

Legal Philosophy aka JURISPRUDENCE or the science and

philosophy of law, concerns itself with fundamental questions
like what is law as such. It seeks to know the law’s true nature, its
ultimate goal and purpose. It delves into questions such as “What
is the essence of law; What problems and difficulties exist within
a particular legal system and institution; and How does law
interact with the larger society within which it functions.”

FOUR ELEMENTS OF LAW

(1) REASONABLE ORDINANCE (rationis ordinatio) "Law must be

just" - The chapter on human relations is now precisely
embedded in the New Civil Code in order to obtain stability of
the social order. Laws, as guides for human conduct, "should run
as golden threads through society, to the end that law may
approach its supreme ideal which is the sway and dominance of
justice.

(2) FOR THE COMMON GOOD (bonus communis) "It is a rule of

conduct" - Laws serve as guides of an individual in relation to his
fellowmen and to his community; "Laws must be ordained for
the common benefit" - This recognizes the famous Latin maxim
of "Salus Populi Est Suprema Lex"- the welfare of the people shall
be the supreme law. Laws should be applied not only to a
particular group of citizens. They are supposed to be applied
equally to all citizens regardless of their religion, political
persuasion, and status in life.

(3) PROMULGATED "It must be obligatory" - If laws are not

enforced, the purpose for which they are intended will not be
served;

(4) BY LEGITIMATE AUTHORITY "Law must be prescribed by

legitimate authority" - If laws are not prescribed by legitimate
authority, the people could not be expected to observe them.
Authority to make laws is conferred upon those duly chosen by
the sovereign will of the people.
This is in consonance with Sec. 1, Art. II of the Philippine Consti
which says that "sovereignty resides in the people and all
government authority emanates from them".

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