PHILOSOPHY OF LAW POINTERS 2013

2014
Professor: Atty. Glenn Capanas

1. Titles of Philosophy
A. Jurisprudence: knowledge of or skill of law. Also meant as case law or body of law built up
by the decisions of particular courts. NCC. Art. 8: Judicial decisions applying or interpreting laws and
the constitution shall form part of the legal system of the Philippines. Judicial Decision is Jurisprudence.
The study of jurisprudence is understanding or analysing the law in particular country but investigates
what is common to the systems of law, the shared features of actual legal system. Jurisprudence
concerns the knowledge of law as a science combined with the art or skill of applying it. Legislation is
the science of what ought to be done towards making good laws, combined with the art of doing it.
B. Legal Theory: an aspect of jurisprudence which deals with the question of what is the nature
of law. Deals with law as it is. (sole concern of legal theory) as opposed to law as it ought to be
(legislation)
C. Philosophy of Law: Focuses on questions of jurisprudence. Regards as peripheral such as
inquiry of other legal phenomena. Inquires not only on nature of law and of other legal phenomena but
also the rational consideration of normative issues related to law. (like obligation to obey the law,
enforcement of morality, the problems of ideal justice, liberty punishment.)
2. Art 10 salvacion
The task of philosophy of law is to unveil the goal of law and its underlying motives (not motives of
legislators primarily but of society that creates the laws and sustains them)
In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail.
Salvacion Vs. CBP
-court treated the petition for declaratory relief as one for mandamus considering the grave injustice
that would result in the interpretation of banking law.
-crime of rape committed by a foreign tourist against a Filipino minor and the execution of the final
judgment in the civil case for damages on the tourists dollar deposit with a local bank, the court
declared Section 113 of the Central Bank Circular No. 960, exempting foreign currency deposits from
attachment, garnishment or any other order or process of any court, inapplicable due to the peculiar
circumstance of the case.
-The court held that injustice would result especially to a citizen aggrieved by a foreign guest like
accuse this would negate art. 10 of the civil code:

- The court therefore required respondents Central Bank of the Philippines, the local bank, and the
accused to comply with the writ of execution issued in the civil case for damages and to release the
dollar deposit of the accuse to satisfy judgments.
3. Descriptive law and prescriptive law
Descriptive: Merely describes uniformities or regularitites in the world or nature. How events
regulary happen.
Prescriptive: Do not describe but prescribe a type of behaviour which is supposed to be
obeyed. Require the doing of abstaining from certain actions
4. Kinds of Legal theories
A. Natural Law:
= classical Greeks, There is an intrinsic, essential or conceptual connection or link
between law and morality, morality provides the key to the proper understanding of law.
Common Law Theory: a variation of the Classical Natural Law Theory as it was
postulated that the common law was the embodiment of Justice or Natural Law.
Procedural or Methodological Natural Theory; Fuller, 8 procedural requirements of law;
General, Promulgated (published), prospective, intelligible, logically consistent, such as to
require only the possible, relatively constant over time and applied as stated. Constructive
or Jurisprudential Natural Law; Ronald Dworkin, Legal enterprise is constructive in the
sense that the law is constructive in the sense that the law is being constantly interpreted
and applied to satisfy 2 requirements, that of Fit and of Soundness.
B. Legal Positivism
Provides the simplest explanation of what law is. Law is a command, a hierarchy of
norms, union of primary or secondary rules, a social fact. A product of human
endeavour or human will. To valid, a law must simply follow the prescribed proper
procedures for the enactment of law. Law need to fulfil any kind of moral content to be
valid.
C. Social Science
Law as a product of human endeavour which has no essential connection to morality.
In contrast to positivism, it studies law as a social phenomenon. In describing, law
adapts an external or third person perspective. Law is seen merely as set of
predictions and not as normative judgments to be obeyed or complied with.
D. Radical or Critical Theoreis
Marxist legal theory. Law is perceived as nothing but representing the interests of the
moneyed or propertied class in society.
5. Approaches to philosophy
a. Detached internal view: attempt to fully understand the nature of law, from assuming also the
internal or participants point of view, that is, putting himself in the shoes of a lawyer or someone
immersed in the practice of law and observing it from that perspective. The internal perspective
provides an insight into the nature of the phenomena, not provided by an external on.e

b. History: many of the observations philosophers make are in response to conclusions made by
other philosophers and cannot be appreciated without knowing what these earlier philosophers
claimed.
c. Analytical: Conceptual Analysis is the method used. Concepts need to be clarified first before
addressing normative issues.
d. Natural: law is a product of reason, from which arises the rationalist tradition in the philosophy of
law as exemplified by natural law theory.
6. Emotive meaning (favorable or infavorable)
Emotive Meaning: Avoiding unwarranted normative or substantive conclusions through
persuasive definitions (some words have the effect of producing either favourable or unfavourable
reactions on the part of hearer or reader .
Favorable: eg. Democracy, freedom and culture.
Unfavourable: eg. Violence, fascism and tyranny.
7. Kinds of definition
a. Essentialist: one that captures the true nature or essence of that which is being defined.
b. Lexical: called reportive or dictionary definition.
c. Stipulative: purpose is linguistic one of enabling the reader to know when to use the word
correctly and the criterion for logical correctness is confined to the linguistic world.
8. Twin beacons
a. 4 in
Judiciary characterized by four Ins: independence, integrity, industry and intelligence; one that would
be
morally
courageous
to
stand
its
ground
against
the
onslaughts
of influence, interference,indifference and insolence; and that is impervious to the plague of ships -kinship, relationship, friendship and fellowship.
b. Acid
a. limited access to justice by the poor
b. corruption
c. incompetence
d. delay in the delivery of quality judgments.
c. Disjunctive inclusive schemes
The disjunctive scheme would have us embrace the view that for prosperity to be achieved, the
peoples freedom must be curtailed in some respects. This position is not new at all. Shades of this
standpoint are strikingly extant in social-contract theories. These theories postulate the surrender of
individual freedoms and liberties to the State or the collectivity, as a precondition for the protection and

prosperity promised by life in an ordered society. We in the Philippines, for example, have been advised
-- no doubt by well-meaning friends -- not to take our liberty too seriously, if we want to see the
economy take off.
On the other hand, the second position sees a causal relationship between liberty and
prosperity; it sees that fostering liberty is a precondition for the advent of prosperity. The fundamental
idea is that persons are entitled to have certain wants satisfied and certain existing needs filled by the
government, without any direct charge other than their payment of general taxes.
The third position, with which my philosophy is aligned, regards liberty and prosperity
as mutually inclusive. It advances the view that liberty must include the freedoms that prosperity
allows. In the same manner, prosperity must include liberty, especially the liberty to strive for the good
life according to a persons conception. Liberty becomes the guarantee that, free from all undue
interference and suppression, we all can conceive of the good life and act according to those
conceptions! I venture the proposition that a society marked by such liberty is prosperous.

9. Fr. Aquino
a. Justiciability: it is the pursuit of justice through the protest against injustice. The usefulness of the
concept of justifiability is closely linked with the integrity of the judge, the rationality of the legal system
and the competence and credibility of the judicial institutions.
b. Morality: referred to in the law is public and necessarily secular not religious as the j. Carpio
holds. Religious teachings as expressed in public debate may influence the civil public order but public
moral diputes may be resolved only on grounds articulable in secular terms. IF the govt relies opon
religious beliefs the resulting policies and morals would require conformity to what some might regards
as religious programs or agenda.
10. 4 conditions for the act of judging:
a. existence of the written law
b. the presence of an institutional framework- courts, appeal courts
c. the intervention of qualified
d. course of action constituted by the trial or judicial process, where the pronouncement of
judgment constitutes the endpoint,
11. Concept of morality
12. Estrada vs escritor
a. Benevolent neutrality theory: the principle underlying the first amendment is that freedom to
carry out ones dutie to a supreme being is an inalienable right, not one dependent on the grace of
legislature. Religiious freedom is seen as a substanctive right and not merey a priveldge against
deisrimatory legislation. With religion looked upon with benevolence and not hostility. Benevolent
neutrality allows accommodation of religion under certain circumstance.
b. Compelling state interest test: is the notion that free exercise is a fundamental right and that
laws burdening it should be subject to strict scrutiny.
13. Oposa vs factoran
a. Deconstructive reading on locus standi

Re-reading the law is deconstructing it to explore the unread, the unfamiliar. Petitioners minors
asserts that they represent their generation as well as generations yet unborn.
a. On locus standi: accepted reading of the rules would have denied the children any standing

outright but CJ Davide ventured into the unfamiliar, the moving force of all deconstruction.
14. Fornier vs comelec
a. Legitimate and illegitimate political etc
Legitimate and illegitimate political etc
FACTS
Respondent Ronald Kellly Poe, also known as Fernando Poe, Jr (hereinafter FPJ),
filed his certificate of candidacy for the position of President of the Philippines of RP,
indicating therein that, among other things, he is a natural-born Filipino citizen, born
on August 20, 1939 in the City of Manila.
RULING
Petitioner Fornier initiated a petition before the COMELEC to disqualify FPJ and to
deny due course or to cancel his certificate on the ground that he made material
misinterpretation in his certificate of candidacy by claiming to be a natural-born
Filipino citizen when the truth according to Fornier, his parents were foreigner. The
COMELEEC dismissed the petition. MR was also denied. The Supreme Court
dismissed the petition in GR. No. 161824. In ruling that FPJ is a natural-born Filipino
citizen, the Supreme Court referred to the 1935 Constitution, which the fundamental
law was prevailing on the day month and year of birth of FPJ, which confers
citizenship to all persons whose fathers are Filipino citizens regardless of whether
such children are legitimate or illegitimate.
The concept of citizenship had undergone changes over the centuries. In the 18 th
century, the concept was limited, by and large, to civil citizenship, which
established the rights necessary for individual freedom, such as rights to property,
personal liberty and justice. Is meaning expanded during the 19 th century to include
political citizenship, which encompassed he right to participate in the exercise of
political power. The 20th century saw the next stage of the development of social
citizenship, which laid emphasis on the right of the citizen to economic well-being
and social security. The idea of citizenship has gained expression in the modern
welfare state as it so development, in keeping with the rapidly shrinking global
village might well be the internationalization of citizenship.
15. Twin beacons liberty and prosperity
1. DISJUNCTIVE SCHEME
This first scheme embraces the view that for prosperity to be achieved,
the peoples freedom must be curtailed in some respects. This position is
not new at all. Shades of this standpoint are strikingly extant in socialcontract theories. These theories postulate the surrender of individual
freedoms and liberties to the State or the collectivity, as a precondition for
the protection and prosperity promised by life in an ordered society. We in
the Philippines, for example, have been advised -- no doubt by well-meaning
friends -- not to take our liberty too seriously, if we want to see the
economy take off.
2. CAUSAL RELATIONSHIP

The second position sees a causal relationship between liberty and

prosperity; it sees that fostering liberty is a precondition for the advent of
prosperity. The fundamental idea is that persons are entitled to have
certain wants satisfied and certain existing needs filled by the government,
without any direct charge other than their payment of general taxes.
3. MUTUALLY INCLUSIVE
The third position, with which my philosophy is aligned, regards liberty
and prosperity as mutually inclusive. It advances the view that liberty
must include the freedoms that prosperity allows. In the same manner,
prosperity must include liberty, especially the liberty to strive for the good
life according to a persons conception. Liberty becomes the guarantee
that, free from all undue interference and suppression, we all can conceive
of the good life and act according to those conceptions! I venture the
proposition that a society marked by such liberty is prosperous.
Liberty and Prosperity,
Not Liberty or Prosperity
two standards of judicial review, as follows:
1. In litigations involving civil liberties, the scales should weigh heavily
against the government and in favor of the people -- particularly the poor, the
oppressed, the marginalized, the dispossessed, and the weak. Laws and actions
that restrict fundamental rights, like freedom of expression and of the press, come to
courts with a heavy presumption against their validity. This policy is commonly
referred to as heightened or strict scrutiny.
2. In conflicts affecting prosperity, development and the economy, deference
must be accorded to the political branches of the government. This approach is
more widely known as deferential interpretation of laws and executive actions.
Let me stress that the above standards do not intend a separatist or
disjunctive approach like that which recognizes liberty or prosperity, or which
requires a choice of one or the other only. Rather, this position espouses a
fundamentally coexistent scheme, in which liberty and prosperity can live and
blossom side by side, hand in hand.
In short, it is not liberty or prosperity but liberty and prosperity
Safeguarding Liberty
Safeguarding liberty has long been a traditional expectation from our
courts. Their role is to be the great equalizers when individual freedoms
-- whether civil, political or economic.
Emergence of New Rights
As technology advances and civilization prospers, new rights emerge.
An example of a new freedom that has arisen from a new technology is
the right to conduct public opinion polls and to publish their results. I
am pleased to inform you that our Supreme Court has become a world

leader in upholding this new norm as an essential part of the traditional

freedom of speech and expression.
Rights of the Accused
Indeed, our Supreme Court is ever vigilant in safeguarding new rights.
Just recently, it condemned the vexatious, oppressive, unjustified and
capricious delays in the arraignment of the accused. The Court ruled
that his detention for almost two years without having been arraigned,
despite 14 attempts to do so, violated his constitutional right to speedy
trial and speedy case disposition. This Decision, which I penned,
stressed that the Court safeguards liberty and will therefore always
uphold the basic constitutional rights of the people, especially the weak
and the marginalized. For the transgression of his constitutional right
to speedy trial, the accused was ordered freed and the criminal
indictment against him dismissed.
Right to Life and to Liberty
Thus, the Philippine Supreme Court has invariably looked, with
heightened scrutiny, at cases evincing restrictions of fundamental
rights. As mentioned earlier, any law restricting these rights comes to
the courts with a heavy presumption against its constitutional
validity.
Very recently, our Supreme Court promulgated three landmark
decisions involving:
(1) the right of Congress to summon executive officials for
investigations in aid of legislation, in conjunction with the peoples
right to information on matters of public concern;
(2) the right of the people to peaceful assembly for redress of
grievances; and
(3) the rights of the people under a state of national emergency. In all
these cases, the Supreme Court upheld the primacy of civil liberties
over governmental actions.
Nurturing Prosperity
While safeguarding liberty is a fairly common task for the
judiciary, nurturing prosperity is something even seasoned jurists and
lawyers may not all readily understand and agree with.
Some
jurisdictions may even disagree with the position that the judiciary
should exert conscious thought and effort to nurture progress.
Nonetheless, I maintain that whatever the measure of a countrys
economic progress, courts contribute to the achievement or nurturance
of prosperity.