Memory Aid

For
Theory of Laws & Legal Theories
What is the meaning behind the concept of
Ours is a government of law and not of men?

Theory of Law
Talks about the law, the meaning of the law
and the justification of law.

Legal Theories
Deals more legal reasoning and legal
thinking and is more related to the concept
of law.

What do we study about?

Meaning of law
Conception of law
Purpose/Justification of law
Relevance of law in the society
How law is form and implemented
Test of validity of law
Is law separate from morality
How is law related to the concept of justice
Why do men obey laws: Justification on obedience of
the law

Quoted by John Adams a famous American

lawyer
This means that the nation is governed by
the law itself and not just by men in power or
by men drafting the laws.
It means that people in power can't make up
rules that you have to follow on a whim.
It also follows the famous notion that no one
is above the law.

Legal system
Correlation of rules in a particular
jurisdiction.
Law of the case doctrine
The judge must decide in the same manner
the case where the other judge decided on a
different case which has similar underlying
situation.

Morality is based on natural law

Law a reflection or manifestation on natural
law

Legitimate Law
Binding and acceptable to the people

Basic Questions:
What is law?
What is the nature of the law?
What justifies the law?

Theory of St. Thomas Aquinas:

Law is an ordinance of reason ordered towards the
common good promulgated by him who has charge of the
community.

Rationale behind the study of the above basic questions:

Helps in every endeavor whether as a citizen, as
a judge, as a priest criticizing the RH Bill and
etc.
It is more significant in a perspective of a judge.

It is promulgated by a higher authority, enforced

to its constituents which is based on reason for
the purpose of common good.
Theory of Hans Kelsen:

WHAT IS LAW?

Law is an order of human behavior. An order is a

system of rules. Law is not, as it is sometimes said; it is a set of
rules having the kind of unity we understand by a system.

Theory of Roman Sanchez:

Acceptable definition of law as a course:
General Sense:

Law is more of an order or a social institution

The science of moral rules, founded on the rational nature of

man, which governs his free activity, for the realization of the
individual and social ends, of a nature both demandable and
reciprocal.

Social order or Social Phenomenon

It pertains to the adoption of law by a society
for a purpose of accomplishing a particular
end.

Christopher Langdell: The study of law is a

science
Laws are use as tools in the achievement of
human end

Theory of N.M. Korkunov:

Laws are either technical or ethical norms

Technical Norms
Deal with objects of human activity
If a law simply regulates a particular conduct
as it is to achieve a particular end then it is a
technical norm

Specific Sense:
A rule of conduct, just, obligatory, promulgated by the
competent authority for the common good of a people or a nation;
which constitutes an obligatory rule of conduct for all of its
members.

Ethical Norms
Deals with guiding principles in choosing an
end.

Cicero on Traditional Natural Law Theory:

True law is right reason in agreement with nature; it is
a universal application, unchanging and everlasting. It is a sin to
try and alter this law nor is it not allowable to attempt to repeal
any part of it, and it is impossible to abolish it entirely.

Judicial Norms
Does not representatives of moral norms or
of natural law.

Theory of Oliver Wendell Holmes, Jr.:

Inherent rights and universal laws does not need

statute to invoke them
Anarchist
Does not believe in laws because they
believe men can be governed by pure
reason.

Law is a body of dogma or systematized prediction.

The Bad Man Theory:

-

The law is what the bad man thinks

The bad man theory is looking at a law in a way
where the bad man tries to understand the law
for the sole purpose of knowing its material
consequences so he can predict it and ultimately
evade its consequences.

St. Thomas Aquinas on Traditional Natural Law Theory:

Every human law has just so much of the nature of law, as it is
derived from the nature of law. But if in any point it deflects from
the law of nature, it is no longer a law but a perversion/parody of
law

If you want to know the law and nothing else, you must look at it
as a bad man, who cares only for the material consequences
which such knowledge enables him to predict, not as a good one,
who finds his reasons for conduct, whether inside the law or
outside of it, in the vaguer concept of rights.

The rights of man in moral sense may not be the same or equal
in law.

Theory of Ronald Dworkin:

Conceptions of LAW
1. Law as a social institution
The law is there to aid members of the society
achieve certain desirable ends.
-

Cicero believes that some laws are inherent

and universal.

Positive laws have the power of binding in

conscience.
A just law is one that is consistent with
natural law, that is, IT IS ORDERED TO
THE COMMON GOOD.

Modern Natural Law Theory (MNLT)

Assails the validity of legal positivist
propositions because this theory is more of
refutations to legal positivist, rather than its
relation to the thinking of Aquinas.

The law provides a particular cosmos or

environment

Lon Fuller Modern Natural Law Theory:

The Morality of Law, 1964

2. Law as a particular type of rule

Law in its specific sense for a particular conduct.

To be called a law, it must comply with certain criteria:

(Internal Morality), laws must be generally applicable to
all, announced, should not be retroactive,
understandable, and not contradictory, should require
reasonable conduct and constant through time

3. Law as the propositions of law

Theory of H.L.A. Hart:
Laws come from other laws. Laws are but proposition of
other laws.

Law is the enterprise of subjecting human

conduct to the governance of rules.
Law is seen as guiding principles, a tool, a
means to an end.

WHAT IS THE NATURE OF LAW?

Major Legal Theories:
1. Natural Law Theory
2. Legal Positivism
3. Legal Realism/ Skepticism
4. Critical Legal Studies (CLS)
5. Legal Formalism

Political and Moral Right Theory:

Whatever is political and morally right then
that should be applied
Ronald Dworkin:
Laws include not just the norms found in
treaties, customs, constitution, statutes and
cases, but also moral principles that provide the
best justification for the norms found there.

NATURAL LAW THEORY

Two principles:
1. Traditional Natural Law Theory (TNLT)
2. Modern Natural Law Theory (MNLT)

Traditional Natural Law Theory (TNLT)

By Cicero, Plato, Aquinas, Russo
Ascribes law on the basis of a higher law.
Laws made by men are tested by higher law
such as reason, morality or divine law.

He observes that the things justified by moral

principles are socially constructed but the
justifications (arguments themselves are not.
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Kant is saying to some extent we can live in a society

where we are to be governed by our own perception
of good and bad on our own judgment. However since
our judgment may not be exactly the same as the
judgment of other people, it would be safe, prudent
and necessary to submit and therefore leave our own
conception of right and wrong in favor of a definite
system we call law.

He offers interpretative approach to law such

that for him legal claims are interpretative
judgments and therefore combine backwardand-forward looking elements.

LEGAL POSITIVISM
Law fixed for man, made by man
It looks at a law on the basis of what it is and
not what it ought to be.

LEGAL REALISM/ LEGAL SKEPTICISM/ AMERICAN

LEGAL REALISM

Two Principles:
1. Law is a social act or convention
2. There is no necessary connection between law
and morality

Leading Proponent: Oliver Wendell Holmes, Jr.

The life of the law has not been logic, it has been experience
The necessities of the time, the prevalent moral and political
theories, institutions of public policy and even the prejudices
which judges share with their fellow-men, better determined the
rules by which men should be governed.

Laws are constructed from commands, threats

and obedience.
Laws are handed down by a sovereign backed
by threats of force.

Legal Realist
The law is not the statute; the provisions are
not the law. The law is what the judge thinks
when applied to a particular set of facts.
The decisions the judge rendered cannot be
separated by the considerations and
therefore the judge might incorporate on his
legal reasoning other factors aside from the
law itself. This is the reason why the law
remains indeterminate.

Sovereign
A person or group who enjoys the habitual
obedience of most others but does not
habitually obey anyone else.
H.L.A. Hart on Legal Positivism:
Law & Morality are separate
There is no necessary connection between law
and morals.

Legal Realist often criticizes Formalism.

It is in no sense a necessary truth that laws
reproduce or satisfy certain demands.

The law is in some point rationally

indeterminate:

Leslie Green on H.L.A. Harts Concept of Law:

The fact that a policy would be just, wise, efficient or
prudent is never sufficient reason for thinking that it is
actually the law and the fact that it is even unjust,
unwise, inefficient or imprudent is also not a good basis
for saying that it is not a law.

American legal realists argue that, unlike

classical legal theorist, legal reasoning is not
dependent from moral and political
consideration.
Legal Realist are often criticized for favoring
Judicial Activism, where judges base their
decisions on their personal and political
considerations rather than the law.

The moral aspect should not be the test for

making a law. A law should be binding not
because it is morally good but because it is
simply the law.

THE LIVING TREE THEORY

The constitution has the ability to adapt to
the changing times and conditions.

Emmanuel Kant:
Reason is not enough in looking at the concept
of the law.

LEGAL FORMALISM
However well-disposed and law-abiding men might be; individual
men, people and states can never be secure against violence
from one anothers opinion about this. Since it has its own right
to do what seems right and good to it and not to be dependent on
once opinion about it. So, unless it wants to renounce any
concepts of Right, the first thing it has to resolve upon is the
principle that it must leave the state of nature in which it follows
its own judgment, unite itself to all others and subject itself to a
public lawful external coercion and so enter into a condition in
which what is to be recognized as belonging to that person

A branch of legal positivism

Focus on the legal reasoning on how the judge
considered the law.
A law is already the product of normative and
policy consideration in the formation of the law.
Hence, a judge should not say what the law should be
but should confine itself to what the law is.

Legal Formalism: Christopher Langdell

It is wrong to say is a science since the law
is that the judge say it is.
Only considers the law and the facts and
nothing else.

Reason behind these theories:

Because of questions of anarchist on
questions of law.
Anarchist
Believe that each person has a duty to act
on the basis of his own moral assessment of
right and wrong as well as the duty to reflect
on what is right and what is wrong in each
particular instance of action.
For anarchist, the duty to act
autonomously is incompatible with duty of
obeying political authority.
Law and authority is incompatible with our
freedom. It is better to rely on our own
judgment in our relationship with one
another.
Anarchist does not necessarily think about
reason but they only need the freedom to
think for themselves what is right and what
is wrong.

CRITICAL LEGAL STUDIES (CLS)

CLS advocates believe in the inadequacy of law
or emptiness of the law.
Legal Indeterminacy
That the statutes and case at hand cannot
definitely determine the outcome of the case
such as legal indeterminacy.
CLS argued that the liberal ideals of freedom
cannot actually be realized in a legal regime and
that efforts to realize them will only result in
doctrine that will always remain debatable.
CLS believes that Law is but politics.

THE CONSENT THEORY

The law is merely a tool use to simply
perpetuate the influence of the fewer privilege
class.

A political authority is legitimate only if it has the

consent of those who are subject to its
commands

Analysis of Guyora Binder on CLS:

SOCIAL CONTRACT THEORY

The indeterminacy of interest, as developed by critical

legal studies, undermines the instrumental conception of society
that has informed much policy and analysis across political
spectrum though the indeterminacy of critic of liberal right theory
generated more attention and controversy.

Presupposition of the Social Contract Theory:

This theory presupposes the state of nature
or the hypothetical condition or event, the
nature, the situation or event prior to the
establishment of law. It is only then that we
can justify the presence of law.

This means that law in its attempt to accomplish

its purpose is ultimately inadequate to
accomplish what it was meant to do.

Thomas Hobbes
Absolute authority
He perceives that before the establishment
of law, system and government, the state of
nature would be nasty, brutish and war-like,
and everyone is at war with each other in
trying to advance their interest and thinking.
The only way, by which these people on his
idea of state of nature can achieve social
order, peaceful and harmonious society is
by consenting to a higher authority.

For binder the most successful contribution of

critical legal studies is that it is an indeterminate
critic to instrumentalism.
CLS does not suggest that there should be no
laws but it simply states that laws are not able to
accomplish its purpose.

JUSTIFICATION OF LAW
Reason for obeying the laws:
The content of the command
The nature of the source of the command

John Locke
Limited authority
He perceives the state of nature in a way
where it is still considered harmonious
because for him people can still interact with
each other with pure reason.
For him the reason why the people needed
a higher authority is to assure that property
rights would be protected. Because the
notion of what is right and wrong might not

THEORIES ABOUT THE LEGITIMACY OF POLICITAL

THEORY
Consent Theory
Reasonable Consensus Theory
Associative Obligation Theory
Instrumentalist Theory
Divine Right of Kings Theory
Democratic Theory
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ASSOCIATIVE OBLIGATIONS THEORY

be the same with one another when dealing

with property rights.
The higher authority must be established
with the consent of the people.
The higher authority must only govern to the
extent necessary to achieving social order.

Associative Obligation Theory: Ronald Dworkin

Jean-Jacques Rousseau
Espouses consent and general will of the
people in the institution of a higher authority
Authority is the general will popular
sovereignty is inalienable cannot be
transferred
INSTRUMENTALIST THEORY

Authoritative directives should be based on

reason which already independently apply to the
subjects of the directives and are relevant to
their action in the circumstances covered by the
directives.

The law is established for a particular purpose.

A law that takes the place of reason becomes

legitimate and binding.

The basic principles that regulate the coercive

institutions should be the ones that the
reasonable members can agree to.

The liberal state must commit itself to the ideal

of public reason

According to Dworkin, we all belong to a

political society and because of this we are
duty bound to follow the rules in the society.

Furthermore, Dworkin also state in his book

Lost Empire, he argued that the obligation
to obey the law is associative obligation
product in being a member of an
association.

Special responsibilities, social practice

attaches to membership in some biological
or social group like the responsibilities of
families and friends or neighbors.

Discourse Ethics of Jergen Habermas Method

The only law that counts as legitimate is one
that could be rationally accepted by all
citizens in a discursive process of opinionan-will-formation.
-

Reasonable Consent Theory: John Rowls:

Justice as fairness
-

Argue that the liberal principle of political

legitimacy requires that coercive institutions
be so structured that they accord with the
reasonable views of the members of the
society. As long as they do so they have the
right to impose duties on their members.

Citizens do not have to agree on everything

but only on those principles.

A law may be acceptable, binding and

therefore should be obeyed by the people
only when that law had been a product of
deliberation on matters relating to public
reason.

There may be principles that may be ignored

therefore disagreement in the society is but
necessary in the legitimacy of the law.

DEMOCRATIC THEORY
Majority rules
Subordinate minority interest which majority
decisions prevails
JERGEN HABERMAS THEORY

REASONABLE CONSENT THEORY

What is important is the law is a product of

deliberation and will formation.

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