PHILOSOPHY OF LAW NOTES

- The goals of this form of philosophy are to:

Understand, explain, analyze, criticize, and
A. Definition, Nature and Function of
classify branches of law.
Philosophy of Law
- Studying philosophy of law helps produce
better lawyers and leads to more insightful
understanding of legal issues.
 Philosophy - from the Greek philos and
Sophia meaning the “love” of “wisdom”
 Philosophy of Law - “love of the wisdom of C. Legal and Philosophical Issues
the law”
 A lawyer, therefore, is a lover. He is a lover a. The Four Elements of Law
of the wisdom of the law.
1. reasonable ordinance (rationis ordinatio)
2. for the common good (bonus communis)
 Wisdom - is defined as the ability to use
3. promulgated
knowledge and experience to make sound
4. by legitimate authority
decisions and judgments.
b. Modern Standards for a Rule of Law
- It encompasses insight, good sense, and
What constitutes “rule of law” in the modern
the capacity to discern relationships and
international arena: (UN Secretary General Kofi
inner qualities.
Annan defined)
- often seen as a product of life experiences,
combining ethical considerations and For the United Nations, the rule of law refers to a
empathy to guide actions for the benefit of principle of governance in which all persons,
oneself and others institutions and entities, public and private,
including the State itself, are accountable to laws
Nature of Philosophy of Law that are publicly promulgated, equally enforced and
independently adjudicated, and which are
consistent with international human rights norms
and standards.

It requires, as well, measures to ensure adherence

Function of Philosophy of Law to the principles of supremacy of law, equality
before the law, accountability to the law, fairness in
The philosophy of law, or legal philosophy, the application of the law, separation of powers,
examines and analyses the law in general, as well participation in decision- making, legal certainty,
as legal institutions, systems, and principles. avoidance of arbitrariness and procedural and legal
transparency.
It examines the law’s relationship with other
systems and philosophical areas, such as politics
and political philosophy, economics, and ethics. D. Branches of Law

 (not sure of this)

B. Necessity of Learning Philosophy of Law As to whether a right or a procedure is given:

- Philosophy of law considers laws and legal  Substantive law - establishes rights,
concepts through a philosophical lens to duties, and corollary prohibitions
better understand the nature of law.  Remedial or procedural or adjective law -
prescribes the manner of administering,
PHILOSOPHY OF LAW NOTES
enforcing, appealing, amending, and using – is the law of our human nature, based on
legal rights and claims the demands of our humanity
- nature is how people normally behave and
As to scope: are expected to behave
- looks into the principles, purpose, and end
 Public or political law - is concerned with (telos) of the law
the structures of government, the - the law is law as long as it pursues the
relationship between the individual and the precepts of reason: reasonableness, justice,
State; Criminal Law equality, and fairness
 Private law - is concerned with the rules
governing the relationship of individuals;
Civil Law b. Positivist Theory
 Mercantile law - regulates commercial – law is what the authority posits as law
transactions; dealing with artificial - “We follow the law because it is the law”
personalities (e.g. corporations and the - also known as “the command theory”
management of business) - positivism highlights obedience to the
content and expression of the law
 - Positivism is also referred as
“conventionalism”
Eternal law - a law is a dictate of practical reason - Law is purely a product of human will
(which provides practical directions on how one - Laws are made out of explicit or implicit
ought to act as opposed to “speculative reason” agreements, treaties, or conventions in
which provides propositional knowledge of the way society
things are) emanating from the ruler who governs a - There is no underlying substance,
perfect community. principle, or content that the law must
conform
Natural law - this consists of principles of eternal - “analytic jurisprudence” that studies and
law which are specific to human beings as rational recognizes law simply for “what it is” (lex
creatures. lata)
- For positivists, until nullified or amended,
Human laws - Human reason needs to proceed to one cannot dismiss the law based on what it
the more particular determinations or specialized should be according to some non-legal
regulations to declare what is required in particular standards — for being immoral, inefficient,
cases considering society’s specific circumstances. irrational, imprudent, or impractical
These particular determinations, arrived at by
human reason.
c. Interpretivist/Constructivist Theory
Divine law - which is given by God i.e. the Old - What the law means is what the judges of
Testament and the New Testament. Through law, the law would read it to mean.
man is directed to proper actions towards his - A law is not integral when it is not
proper end – which is eternal happiness and consistent (formal) and when it goes against
salvation. substantial rights and principles
(substantive).
- The law is a “seamless system”: in the
E. Legal Theories absence of laws to apply, the judge must
turn to general principles.
(10 Theories) - the interpretivist approach is akin to the
a. Natural Law Theory (Teleological) teleological approach, but Dworkin thought
PHILOSOPHY OF LAW NOTES
principles and rights are not something - Law operates in a specific language,
already laid down by natural law, but impressed by cultural beliefs, traditions,
something still to be “constructed” by the customs, temperaments, and the common
adjudication of judge experiences and consciousness (geist) of a
people.
- the sources of law will then include epics,
d. Realist Theory (The Get-Real Theory) folklores, religion, and political
- The realist school, sometimes labeled as developments
“pragmatic jurisprudence,” focuses on these - Law is written and updated as the people
human realities that are often overlooked by evolve.
hard law, technicalities, and abstract
policies.
- This school raises the question of whether g. Functional/Sociological Approach
the law can be verified by experience. - The law is both a means of social control
- Law is determined by the actual practices and social advancement.
of courts, law officers, and law enforcers; by - measure for behavioral conformity and
real world practice. social engineering
- Decisions must be based on the judge’s - “functional” – everything and everyone has
idea of justice, conditioned by his values, different functions to maintain a healthy
background, and acquaintance with social environment so that each one’s different
forces. pursuits are good to the whole society
- “the life of the law has not been logic, it
(1) William James, who taught of law as a means to
has been experience.” (Holmes)
satisfy needs;
- he believed that life is a struggle to build a
superior race, rather than a pursuit of ethical (2) Charles Louis Baron de Montesquieu, who said
humanitarian values that the law must adapt to shifting social conditions;

(3) R. Von Jhering, who saw the law as a method of

ordering society composed of competing interests
e. Critical Theory (Critical Legal Theory)
- the law has been the means to enshrine (4) Roscoe Pound, who maintained that a coherent
and coercively impose the wishes of the society must have a pattern of culture that
dominant group or institutions determines its ideology;
- example: militants and activists who
(5) Max Weber, who made a typology of law into
continuously harp on laws and policies
rational (logical/scientific) and irrational (emotional,
- questions the law’s assumptions, such as
superstitious).
the assumption that the people are free, and
that the market is free (6) Roberto Mangeira Unger who held that law
- this theory also exposes the must have a cultural context to support it; and
inconsistencies, inhumanities, and
(7) Eugen Ehrlich, who said that legal norm must
imperialism of First World Western
follow actual social norms and be a “living law.”
democracies

f. Historical Theory (The Once-Upon-a- h. Economic Approach

Time Theory) - the purpose of law is to increase the
- The law is not simply made; it is in the balance of happiness in society through
making. It rolls a story struck in real events. “wealth maximization” (Judge Richard
- the law has a past and a progression Posner)
PHILOSOPHY OF LAW NOTES
I. Political Law - Revolution, and
Resistance The Neo-Classical
Philosophers (p. 153)

i. Practice Theory
- The adoption of a particular mode leads to J. Labor Law – Socialism and Communism
a different outcome or case opinion. (p. 172)
- Philip Bobbit identified six main modalities:
1) Historical - must be used when the intention
is to decipher what was really meant by the
framers of the law.
2) Textual - in looking for what the law simply
declares or denies and how it can be
interpreted in contemporary times.
3) Structural - inferring rules from structures
and mandates.
4) Doctrinal - applying rules generated by
precedent.
5) Ethical or moral - appealing on the ethos or
ideals of a government (teleological).
6) Prudential - or according to exigencies and
the calculus of costs and benefits.

j. Forms-and-Fundamentals Approach
- Legal formalism or conceptualism holds that
the law is a strict science governed by
formal axioms, legal principles, and rules of
logic.
- Formalism is also referred to as “textualism”
or the “plain meaning” approach to the law
and “originalism” or the “original meaning”
approach to the Constitution.

Origins of the following laws:

F. Civil Law – The Roman Jurists (p. 94)

G. Criminal and Family Law – The Christian

Philosophers (p. 121)

H. Remedial Law – The Empirical

Philosophers (p.147)
PHILOSOPHY OF LAW NOTES

Terminologies and Other information

 Jurisprudence - from the Latin juris and

prudentia or the “prudence of law” or
“practical knowledge of the law”
- supposed to explain the nature, theory,
development, and objective of a law

 Law - is a rule of conduct, just, obligatory,

formulated by legitimate power for common
observance and benefit.

Classification of Laws (Binding Communal

Role):

1) Jural or Human Law - sanctioned or

enacted law
- ex. statutes, case laws, normative rules,
and precepts
2) Non-jural or Meta-legal Law - not
anchored on human promulgation
- ex. divine law, natural law, and physical law.

 Divine law - proceeds from sacred writings;

ex. the Bible or the Qur’an
 Natural law - is the law of our human
nature, based on the demands of our
humanity.
 Physical law - refers to the mechanical
laws of the universe; ex. laws of gravity by
Galileo, or the Newtonian mechanics, or
Einstein’s law of relativity
PHILOSOPHY OF LAW NOTES

Interpretivist or Constructivist Theory

Legal Theories
The interpretivist school points that the law is more
Refers to a topology of discourses about the origin, than explicitly adopted rules.
purpose, and character of the law.
It has merits or principles that can be “interpreted”
It evaluates and prescribes how a body of conduct or “constructed” by the courts to contribute to the
becomes norm, rules, or obtains binding effect growth of law.

It is a rights-based, pro-active construction of the

We will be learning on the origin and nature of laws; law, against the by-the-rule reading of the law of
how they interplay with the Philippine legal system; positivism.
and how they can be adopted as philosophical
disciplines and tendencies.
2 dimensions of Legal Interpretation:

 Formal dimension – simply looks for the

Teleological or Natural law Theory logical consistency between principles and
This theory evaluates the purposes or norms past decisions;
behind the law. Laws are rules for man to realize  Substantive dimension – looks for
his basic natural goods and when shared, become principles that best “explain” or “justify” the
society’s common good. law, which is construed as having a moral
rights-based dimension.
Nature is how people normally behave and are
expected to behave. Human nature, in particular, is
rational. The law is law as long as it pursues the Realist Theory
precepts of reason: reasonableness, justice,
equality, and fairness. Sometimes called as “pragmatic jurisprudence,”
focuses on human realities that are often
For instance, the law may be stricken down for overlooked by hard law, technicalities, and abstract
being unreasonable or unjust. The jurist appeals to policies.
a higher law, that is, the principles of rational or
moral law in the absence of law or in the presence It brings significance into the question of
of a bad law. implementation and whether the law reflects
practical experience;

Positivist Theory
Critical Theory
Also known as “the command theory,” positivism
highlights obedience to the content and expression The main tenet of this theory is that the law has
of the law “dura lex, sed lex” (the law is hard, but it been the means to enshrine and coercively impose
is the law) the wishes of the dominant group or institutions.

This is associated with subversives as it aims for a

“deconstruction” of the law and usus the
This theory posits that law is purely a product of “hermeneutics of suspicion” against legal
human will, agreement, proposition, treaties, or presumptions, assumptions, and doctrines to
convention, not of some natural law or divine will. advance marginalized causes.
There is no underlying substance, principle, or
content that the law must conform with. It need
only be procedurally correct to be valid.
PHILOSOPHY OF LAW NOTES
In economic approach, goods laws must bear the
imprint of economic analysis. After all, the citizens’
common interest is to prosper in peace. Thus,
Schools of Jurisprudence policies are evaluated based on their effects on
economy.
In pursuit of the study and growth of law, the same
has been enriched as it was related to non-legal
fields and disciplines such as history, sociology,
Formalist and Originalist School
economics, and logic, thus the historical,
sociological, economic, and formalist schools of Legal formalism holds that the law is a strict
interpretation and adjudication have been formed. science governed by formal axioms, legal
principles, and rules of logic.

Otherwise called as textualism since formalism is

Historical School
committed to a set of rules or principles in relation
The law has a past and a progression. It develops to the application of legal concepts fixed at the time
in a gradual and evolutionary process that cannot of the law’s creation.
be separated from its national or indigenous
Originalism considers the “original intent” of the
character.
drafters, or “original meaning” based on what
Historic school raises the question of how the law reasonable persons at the time of the law was
originated. written declare the law to mean in its “initial
framework.”
Law operates in a specific language, impressed by
cultural beliefs, traditions, customs, temperaments,
and the common experiences and consciousness
Practice Theory
of the people. The sources of law will then include
epics, folklores, religion, and political developments There are six modalities which may be used when
that provide a window to the sentiments making an argument;
archetypes, and pass-on ideals.
1) Historical, which must be used when the
intention is to decipher what was really
meant by the framers of the law;
Functional or Sociological School
2) Textual, in looking for what the law simply
This school of thought looks into law as a social declares or denies and how it can be
phenomenon, as a measure of social trends and interpreted in contemporary times;
reengineering. 3) Structural, inferring rules from structures
and mandates;
Ideally, the law should balance the diverse interests
4) Doctrinal, applying rules generated by
and institutions of society and promote progressive
precedent;
national policies.
5) Ethical or moral, appealing on the ethos or
The sociological approach has been used to ideals of government;
recognize and advance the rights and interests of 6) Prudential, according to exigencies and the
marginal groups, mainly the bill of rights of the calculus of costs and benefits.
underprivileged, over the power wielded by the
State;

Economic Approach