PHILOSOPHY OF LAW EH 408MC

Atty. Edmar Lerios

MODULE 1: WHAT TO EXPECT IN LAW SCHOOL  The point of final exams is so that that the professor can
see how you analyze and reason the substantive area
 In law school, you will learn in two primary ways: by reading of law.
and by doing.
 Be an active learner. Do not just sit back and passively absorb MODULE 2: THE LANGUAGE OF THE LAW
information.
 Law, at its core, is about solving problems.  Lawyers are problem solvers. We solve problems through
 Courses in first year: 1) Civil Procedure; 2) Constitutional Law; careful attention to language. Lawyering then is about
3) Contracts; 4) Criminal Law; 5) Property; 6) Torts; 7) Legal language.
Research and Writing  Four skills: (1) Reading; (2) Preparing; (3) Engaging; (4)
 Reading Assignments: The most important material is the Communicating
LAW itself (the cases and other primary sources).
o Reading cases is a special skill, especially extracting  Reading: Active reading is reading with a strategy and
legal principles. purpose. Three step process: 1) examine the context; 2)
 Teaching Method: Case method and Socratic method extract the legal principles; 3) evaluate the reasoning
o The latter was promoted by Christopher Columbus  Step one: examine the context. Why are you reading this
Langdell, dean of Harvard Law School (1870-1895) case? Start with the subject of the course. Consult syllabus
o Wherein instead of lecturing, the professor asks and recent assignments. What is the particular context of the
sustained and increasingly penetrating questions to case? The court, the date, the parties. The judges, the topic,
students the outcome.
o Its purpose is to teach the student the habit of legal  Step two: extract the legal principles. “Brief” the case.
analysis and synthesis Identify, in your own words, the facts, procedural posture,
 Succeeding in Law School court’s holding, court’s reasoning:
o Preparing for Class: Keep in mind when reading for  Facts – real events that occurred in the real world
class: Students should (1) understand legal doctrines;  Law – how society chooses to respond to those facts. Further
(2) use legal doctrines; (3) extend their knowledge of classified to substantive law (creates and controls rights and
legal doctrines on their own. Simply put, be an active obligations) vs. procedural law (defines and describes the
reader. process by which the parties protect their rights and
o Tips: Break your bad reading habits. Don’t skim. Use a obligations)
dictionary. Get used to uncertainty and ambiguity  Legal principles – Note principles in StatCon (ie, legislative
o In Class: Always attend class. (The way the professor intent, when there is ambiguity, interpreting as a whole,
teaches a ubjects reflects how she understands it.) Be criminal law interpreted leniently, etc.
on time. Be an active listener; listen with curiosity. Do  Step three: evaluate the reasoning. Think critically about the
not multitask and tune out distractions. material. Does what the court say make sense to you?
o On notetaking: Do not simply transcribe. Think, o Analytical reasoning: deductive and inductive (vertical)
prioritize, and put into your notes the most important  Deductive – general, universally applicable
ideas. Paraphrase. Critical listening requires statements deduced to particular conclusions
engagement with what you hear. - Requires all premises be true
 Follow along with the discussion or with the student who - When done correctly, is the most powerful since the
is in the hot seat. conclusion is logically compelled
 “Think like a lawyer” – sometimes the professor might  Inductive – many particular factual statements are
ask you to represent a particular position and give the used to create a generalized conclusion
strongest arguments to that side. - Cannot logically prove a conclusion
o Outside of Class: Review and organize your notes. - Most we can do is to build a higher and higher level
 When you might find you have questions: Reread the of confidence in the truth of our general conclusion
relevant assigned material. Talk to your classmates. - How this can go wrong: hasty generalization
Work in groups (but manage your time). Consider using (inference from such a limited sample size) and
published materials (such as hornbooks). See basing the generalization in cases not sufficiently
commercial study aids (tip: only use this after class). like the matter at hand
Last resort is to ask the professor. o Analogical reasoning: draws arguments from across
o Law School Exams: Prototypical law school essay parallel cases (horizontal)
question is the issue-spotter. - Effective analogical reasoning draws the right
 Exam preparation is centered in outlining, a process of analogies.
organizing, digesting, and condensing your notes and - One important skill is to be able to pick out relevant
materials. A synthesis of all the learned concepts and similarities and differences.
material. - Unlike deductive: (1) often fails to produce just one
 Practice exams – helps you anticipate the exam’s unequivocally right answer; (2) concrete and
structure and format. An opportunity to practice, make contextual rather than abstracts
mistakes, and improve.
 Time management is key when taking the exam.
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PHILOSOPHY OF LAW EH 408MC
Atty. Edmar Lerios
- The basic principle is the same: Identify the relevant what’s happening in class instead of writing; (3) flesh out
factors on which to compare your case to the known your notes while the class itself is still fresh from your
case. memory

 Preparing: Active reading and active writing  Communicating: Pay attention to each word, be precise
 FOR class: Write notes in margins. Be judicious in rather than vague, speak in specifics not generalities, and cull
highlighting or underlining. Think about what you’ll need out the irrelevancies and redundancies.
to find answers quickly. Annotate. A single word may  Be organized – logically order your response to a question
make all the difference.  Be concise – substitute more precise language
 IN class: Don’t take verbatim notes. Listen, think, and  Be precise – only answer the question being asked
participate. Reconstruct the class discussion from your
notes. BASICALLY: Be prepared, and then listen and think before you speak.
 BASICALLY: (1) set yourself up by preparing well; (2) take
as few notes as possible so you can actually process

MODULE 3: THE SKILLS YOU’LL NEED

 Distilling the Law

 Issue spotting
 Argument

1. DISTILLING THE LAW

 The skill of turning a long, difficult legal text into a single, Legal Propositions (Legal Ideas) - found in cases, constitution, statues,
well-articulated legal concept. admin, regulations, treaties, law review articles and casebooks
 To understand distilling, must first understand WHAT
you’re distilling:

Kinds of Proposition:
BASICALLY: Composition of Legal Ideas

1. Black Letter Proposition (Legal Doctrine)
 - often ambiguous  Composing Proposition

and vague  Applying Proposition

2. Legal proposition can include facts
 - explains how a legal
 Contextualizing Proposition

rule applies to a set of facts
 Sorting Irrelevant Proposition
3. Beyond Rules
 - vague, flexible standards: Lawmakers might
choose to create a standard, rather than a rule, because
they want judges’ decisions to be sensitive to consequences
and justice in individual cases. (ex. Totality of circumstances
test)
4. Proposition of Bad Law – “Good law”: if it applies in a given
jurisdiction and nobody’s overruled it yet; thus some
propositions are studied precisely because they’re wrong.
5. Proposition of Theory and Policy
 - potentially testable;
ideas from other fields such as Philosophy, Political Science,
Economics which overlaps the study of law; talks about the
effect of legal rules, nature of law, justifications of law,
WHAT is law

You are the Author of the Law: Four Things for Good Distilling:

1. Put proposition into your own words

2. Test your understanding of the propositions by applying
them to new fact pattern (Wiggle the propositions to see
where they hurt)
3. Put propositions into context to see if they fit into the course
as a whole (Seeing the whole cathedral)
4. Disregard proposition that don’t matter (What can’t be
distilled? What should you keep?)

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2. ISSUE SPOTTING - identify the relevant legal questions ought to be applied to a of facts in a particular case, that
presented by a situation and framing them in the right resolution or holding ought to be repeated in subsequent like
doctrinal language cases.
- Asking the right questions: 1) relevance; 2) meaning; 3)  Legal Analogy contends: if the key facts found in a
application precedent and the key facts in your case are similar, and the
- Shortcuts: Focus on what confuses you. Ambiguity is an legal issues addressed in both are the same, then the court
argument waiting to happen. Focus on what’s new. should rule similarly in both cases or risk violating stare
Focus on your assumptions. decisis.

3. ARGUING I. The three triggers: Jurisdiction, Legal issue, Facts

 Arguments about Texts (Constitution, statute, regulation,
court rule, treaty, etc)
 - Exactly what does the legal 1. Jursidiction
In order for a court to honor Stare Decisis:
proposition stands for?
1. A Lawyer must demonstrate that the court is bound to
- Text itself – plain meaning
follow a prior decision because the court sits in the same
- Intent – what the people who created it meant to
jurisdiction, or line of appeal, as the court that decided the
communicate
earlier case.
- Purpose of the Text
 - what the legislator believed 2. A Lawyer must demonstrate that the legal issue decided
when they voted but on what goals are expressed in in the earlier case is the same legal issue raised in the case-
the statue; at-bar.
- Principles of interpretation (Canon of Construction) 3. A Lawyer must demonstrate that the facts in the case-at-
– verba legis, ratio est anima, purpose of the law bar are the same or similar to the facts in the case-at-bar
 Arguments about Precedents are the same or similar to the facts in the controlling
- Does the earlier court have the power to bind your authority.
court?
- Was the earlier court’s statement a holding, or was 2. The Analogical Model
it a dictum? If all three triggers are met, then a lawyer employs an
- Was the earlier case relevantly similar? analogy to argue that a prior case is or is not controlling.
 Policy Arguments - Explains why the world will be a - Establish that the case is controlling: the lawyer
better place if the court chooses one interpretation of argues that the case decided in the same
the law rather than another. If policy behind the doctrine jurisdiction, raised the same legal issue and shares
is weak, policy is vulnerable. the same or similar facts as the case-at-bar.
 Arguments about Facts - Make arguments about which - Establish that the case is not controlling
 - if one
legal category a given set of facts falls into.
of the three triggers is absent and this the court is
What’s good about Good Arguments?
 - With good not bound by stare decisis.
arguments, it has good premises that gives good Successful Analogies depend on two fundamental skills:
 1.
reasons to believe a conclusion is true. Presents good
Accurately defined the critical facts of the controlling
conclusion and then gives good reasons for accepting it.
authority of the case-at-bar; 2. Correctly synthesizing the
facts of the cases

MODULE 4:
 THE FUNDAMENTAL SKILL 3. Critical Facts

Facts from the controlling precedent that a court found
Inductive Analysis and Analogical Reasoning important when it resolved a legal dispute.
Identifying Critical Facts:

Inductive Analysis or Analogical Reasoning

1. A lawyer examines the reasoning of the controlling cases.
- Allows a lawyer to induce a conclusion by establishing a legal analogy
between the key facts in the controlling cases and the facts in the The reasoning explains the legal basis of the court’s decision.
client’s case 2. You cannot identify the critical facts without first
understanding the reasoning of the court. The court’s
A. Analogical Reasoning reasoning determined which facts in a case are critical or
determinative.
 Analogy
 - a logical inference that if two or more things are
4. Case Synthesis - An effective tool that allows a lawyer to
similar in some respects, they will be similar in other
integrate a large body of case law into one holistic analysis;
respects
requires the lawyer to extrapolate the common significance
 Legal Analogy
 - A logical inference that is two or more among the critical facts of several cases.
cases in the same jurisdiction are similar with respect of
facts and legal issues they will be similar with respect to Commonality
 - should be a characteristic that is shared by
their holdings.
the critical facts in the analogous cases; must be germane to
 Stare Decisis
 - once a court decides how a legal principle the reasons and holdings of the precedents
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PHILOSOPHY OF LAW EH 408MC
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Common Denominator
 - must be legally significant and case law

focus on the key factual quality that the cases deemed

NOTE: Broad Analogy compares the common characteristic of the
important
facts in the controlling cases to the case-at-bar; Narrow Analogy
Discovering Common Factual Denominator:
compares the specific ciritical facts in a single case to the case-at-bar.
1. A Lawyer analyzes the facts to find the first level of
similarity between the critical facts in the controlling cases and
the case-at-bar The Four Step Argument: Broad Analogy
2. Lists the characteristics of the critical facts, 1. State the point of Analysis

abstracting from the specific to the general. 2. State the Broad Comparison

3. Apply the court’s reasoning to your case

Rule Synthesis vs. Case Synthesis
Rule Synthesis - blends several cases to form one holistic 4. Conclude
rule
Case Synthesis - blends several cases to identify a common
factual denominator among the controlling authority that can Deductive Analysis & Rule-Based Reasoning
serve as a the basis of an analogy
To Perform Case Synthesis:
 SYLLOGISM

1. A Lawyer carefully reads the applicable opinions - the classic model for deductive analysis
that are needed to resolve a legal issue - a deductive or rule based argument containing two premises and a
2. The Lawyer studies the critical facts to identify a conclusion

common denominator or thread among the various
- allows the lawyer to determine the truth (or falsity) of a purported
opinions that incorporates the holding and reasons of
the various precedent. conclusion with great accuracy
3. The Lawyer builds a legal analogy around that
common factual thread 1. THE MODEL
Major Premise
When done properly, case synthesis allows an attorney to - the first premise in the syllogism

organize the analysis around a common factual denominator - the major premise is some broad statement that describes a quality,
derived from the precedents. character, property, or attribute that is true to all members of a class
Minor Premise

B. Analogical Strategies
- the second premise in the syllogism; some characteristic of a

Narrow Analogy member within the major premise; usually expressed as a narrow
- Examines specific critical facts in a controlling case that are closely statement that is purportedly included within the major premise
parallel to the facts in the case-at-bar. Conclusion
- the third and final part of the model; a statement that follows
The Four Part Argument: Narrow Analogy logically from the application of the minor premise to the major
1. State the Point of Analysis premise; the logical extension of the syllogism
- The point of the argument and the general premise of the analysis.
2. State the Narrow Fact Comparison
 2. DEDUCTIVE REASONING & LEGAL ARGUMENT
- Lawyer build the analogy by describing how the critical facts in the Because a rule behaves like a major premise, it readily lends itself to
case-at-bar compare to the critical facts in the controlling precedent. deductive/rule-based reasoning.
- The fact comparison should be clear, precise and significant Law qualifies as an immutable and truthful major premise, except
3. Apply the Court’s Reasoning when there is ambiguity.
- Explains the reasoning of the precedent and why the facts
comparison is significant. The lawyer must not only persuade the 3. IDENTIFYING FLAWS IN A SYLLOGISM
court that the facts are analogous, but also why that fact comparison If a lawyer fails to structure correctly the syllogism, the argument is
is important to the court. He must show how the fact comparison flawed. A syllogism is flawed if one of the premises is incomplete or
connects to the prior court’s reasoning implied. Sometimes the major premise does not fully explain, develop,
4. Conclude
or define the law. Without a fully developed major premise, the
- This completes the argument, typically reminds the reader of the
argument fails.
outcome of the issue or the general demand for relief.

The Four Part Argument: Rule-based Reasoning

Broad Analogy
- Draws general comparisons between cases that relate to but are not 1. State the point of the Analysis or conclusion

necessarily parallel to the critical facts. - describe the general reasons that support the argument’s
- Requires some measure of the intellectual flexibility in order to device conclusion
persuasive arguments that incorporate less obvious comparisons. 2. State the Rule
- that rule can either be an expressed or unexpressed rule
derived from the case law, or enacted law.
Two Situations:
3. Explain the Rule
1. When the case-at-bar raises unique or unusual fact

- If the rule/law is not clear: explain how you derived the rule
2. When the analysis requires the integration of a large body of
unless the rule is clear, controlling and unequivocal.
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- If the rule is clear and unequivocal, the facts can be applied to The law is everywhere and encompassing. Private to public, birth to
the rule without further explanation. death, in relationships, almost all activities. Nothing seems beyond the
- Rule derived from a judicial opinion - you may need to reach of law.
establish how you built your rule Law is a significant instrument for progress. An instrument for
- Rule derived from a piece of enacted law - you may need to improvement in our social, political, moral, and economic life. It is the
explain any ambiguous or vague provisions in the law.
number one tool to achieve justice, freedom, and liberty.
- The purpose of explaining
 is to establish the credibility of the
rule. We are a rule of law, not of men. No man is above the law. The
4. Apply Law to Facts priority of the government is security. Sometimes, there is natural
- Once the major premise (rule) is described and explained. The conflict between the rule of law and of security (ex. War on Drugs)
argument continues with the minor premise (facts).
- State with specificity the facts that are required under the rule What is law?
to deduce a conclusion.
Natural law – Law consists of a set of universal moral principles in
5. Conclude
accordance with nature
- Relevant facts from the case are applied to the rule to deduce
Legal positivists – Law is a collection of valid rules, commands, or
a conclusion.
norms that lack any moral content.
- The idea is to explain how the rule operates under the stated
facts.
Law is norm-forming. For example, the RH Bill wherein sex education
The Legal Argument: CREAC used to be taboo. Thus it must not be surprising if there will soon be
sexual equality, and rights for the LGBTQI will have legal recognition.
C – Conclusion
R – Rule (s)
E – Explanation of the law The genesis of law
A – Application of the law History is the way to understand the present through the past, and to
C – Conclusion predict the future.
Law only existed as custom. Elders were considered to be the wisest.
The C in CREAC Unwritten simply because there was no writing system. Because of the
Expect to see the bottom line first. Better understood when you know the
frailty in human memory, we now have early law:
conclusion at the outset. Provides the context to understand the analysis.
 Codes of Hammurabi
 Laws of Solon (an Athenian statesmen)
The R in CREAC
Frames the organization of the analysis. Drives the analysis.
 The Decemviri’s Twelve Tables
 Roman law
The E in CREAC  Justinian’s Corpus Juris Civilis
Explains the rules. Holistic discussion that educates or persuades the  Canon law
reader.  Napoleonic Code
 BGB which originated from Germany (German Civil Code)
The A in CREAC Philippine law follows from the Spanish, the Spanish followed from the
Follows logically from the R and E. Compares the facts in the controlling French, the French followed from the Romans.
authority first explained in the section to the facts in client’s case. Note: Latin maxims – understood almost everywhere
The Final C in CREAC
Concisely states the resolution of the issue analyzed. Brief and should not The Western Legal Tradition
introduce new ideas. Reminds reader of the bottom line.
Distinctive features:
1. A fairly clear demarcation between legal institutions
Fourteen tips when using CREAC:
(including adjudication, legislation, and the rules they
spawn), on the one hand, and other types of institutions on
1. Analyze one issue at a time
the other; legal authority in the former exerting supremacy
2. Conclude only the single issue analyzed
over political institutions.
3. Offer all rules required to analyze the issue
4. Explain the law before applying the law
2. The nature of legal doctrine which comprises the principal
5. In the A section, start with the point of the argument sources of law and the basis of legal training, knowledge,
6. For inductive type arguments that compare facts, a. state the and institutional practice.
fact to fact analogy, and b. prove the significance of the analogy 3. The concept of law as a coherent, organic body of rules and
7. For deductive type arguments, consider the syllogism principles with its own internal logic.
8. Don’t be conclusory 4. The existence and specialized training of lawyers and other
9. Don’t fight the law or your client’s facts legal personnel.
10. Avoid the stretch argument
11. Remember the alternative argument Rule of law, three principles:
12. Anticipate and analyze the opponent’s argument 1. The absolute supremacy or predominance of regular law as
13. Organize the analysis around a common theme opposed to the influence of arbitrary power.
14. Be flexible 2. Equality before the law or the equal subjection of all classes
to the ordinary law of the land administered by the ordinary
MODULE 5: LAW’S ROOTS courts.

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PHILOSOPHY OF LAW EH 408MC
Atty. Edmar Lerios
3. The law of the Constitution is a consequence of the rights of  Parties must have the capacity (competence of members to
individuals as defined and enforced by the courts. enter into contractual relations)
 Contract does not have to be in writing (but formal requisites
The allure of the law is now required by legislation)
The understandable tendency to look to the law to resolve our  Void when against public policy (when used to achieve
problems. And yet the law’s failure to provide a remedy may provoke a immoral or unlawful objectives)
sense of frustration and anger. We should not have excessive faith in  Mistake, misrepresentation, or duress may render it voidable
the law, because according to Judge Learned Hand: “These are false
hopes. Liberty lies in the hearts of men and women; when it dies Tort/Delicts
there, no constitution, no law, no court can even do much to help it.”  Injuries to person, property, reputation, privacy, even peace
of mind
The functions of law  Law of torts grants the victims the right to obtain
compensation for the loss; provides remedies (preemptive or
Order – Law and government are required if we are to preserve order compensatory) for negligent or intentional conduct
and security (Hobbes). Through the social contract, we surrender our  Most torts are actionable only when they have caused injury
natural freedom for order. Our inherent equality creates discord. Thus or damage
we quarrel for competition, distrust and glory. We have an inclination  May also sometimes be breaches of contract (ex: negligent
for conflict, we live in perpetual fear. Order is only one part of the driver commits both tort of negligence and breach of contract
functions of law. of diligent care)
 Proximate cause; remoteness of damage (ex: question of
Justice – consists in treating equals equally and ‘unequals’ unequally, emotional distress)
in proportion to their inequality (Aristotle). Its rules must be  From blame to burden (ex: where you are at fault in causing
reasonable, general, equal, unpredictable, and certain. These are my injury, the law transfers the loss to you)
ideals for law is never certain. The process whereby justice is attained  Fault principle (ex: failing to exercise duty of care)
is as important.  Biblical injunction: duty to love one’s neighbor

Others: Criminal Law

Protection of property  Punishes serious forms of anti-social behavior
Resolution of conflict  Criterion of harm: conduct that impairs the security of the
Economic and social arrangements (contracts) community or hurts the physical well-being or welfare of its
Protection of property members
General well-being of the community  Society cannot tolerate attacks on its own survival
Protection of individual rights (Bill of Rights)  Punishment: 1) to act as a deterrent to both the convict and
to others; 2) offender will come to see the error of his ways
MODULE 6: LAW’S BRANCHES and emerge a reformed individual; 3) retribution; 4) removed
from society, thereby protecting the rest of us; 5) amends
- Fundamental disciplines that hark back to the roots of law: law of through community service
contract, tort, criminal law, and the law of property  Not every crime results in prosecution (ex: plea bargaining)
- As social life is transformed, the law invents and defines new 
concepts and rules to resolve the disputes that inevitably arise. Property
 Ownership is the epicenter of social organization.
Public and private law  Deals with 1) what counts as property; 2) when a person
 Public law: relationship between citizen and state acquires an exclusive right to a thing, and 3) the manner in
 Example: Constitutional and administrative law, criminal law which it protects this right
 Private law: concerns between individuals or groups in society
 Example: Contracts Constitutional and administrative law
 Specifies the composition and functions of the organs of the
Contract government, and regulates the relationship between
 A hallmark of a free society: members can strike bargains of individuals and the state
their choice = free market
 The law tempers the hardship of ‘unfair’ terms of consumer Other branches
legislation  Family law – divorce, child support, adoption, custody,
 For a contract to be binding, the law requires the parties to guardianship, surrogacy, domestic violence
actually intend to create legal relations.  Public international law – regulates relations between
 Consideration is the bargain element of contracts: what each sovereign states. These norms are generated by treatises and
party stands to gain from the agreement international agreements, the UN and other international
 Unilateral contract (ex: between a company and anyone, who, organizations, such as the ILO, UNESCO, WTO, IMF, ICJ, ICC
having seen their advertisement, acted on it)  Environmental law – chief concern is to protect the natural
 Breach of contract; award of damages – invoke the law to environment against the depredations of humans, such as
obtain a remedy carbon emissions and global warming; promotes ‘sustainable
 Social agreements are not binding (ex: I ask you out for a development’
drink)
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 Company law – wherein the concept of ‘corporate person with the capacity to enter into contracts, sue, and be
personality’ is vital, which means that a company is a legal sued

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