Legal Theory Reviewer B2014

Professor Sison
Head: Jen Domino
Members: RJ Gutierrez, Ofelia Leao
Table of Contents
I.

II.

III.

Introduction
a. Abstract__________________________________________________________________________________________________________________
3
b. The New Encyclopaedia Britanica, Western Philosophy of
Law_______________________________________________________________________3
c. Fernando, The Relevance of Philosophy to
Law___________________________________________________________________________________4
d. Adler, The Four Dimensions of
Philosophy_______________________________________________________________________________________4
e. Soper, Making Sense of
Jurisprudence___________________________________________________________________________________________4
f. Hart, Persistent
Questions____________________________________________________________________________________________________5
g. Lloyd, Preface and Conceptual Thinking in
Law____________________________________________________________________________________5
The Nature of Law
a. Abstract__________________________________________________________________________________________________________________
_6
b. Fernandez, Philosophy and
Law________________________________________________________________________________________________6
c. Wolheim, The Nature of
Law__________________________________________________________________________________________________7
d. Lloyd, Is Law Necessary?
_____________________________________________________________________________________________________7
e. Lloyd, Law and
Force________________________________________________________________________________________________________7
f. Lloyd, Law and
Freedom______________________________________________________________________________________________________8
g. Lloyd, Law and
Custom_______________________________________________________________________________________________________9
Natural Law
a. Abstract__________________________________________________________________________________________________________________
_9
Domino, Gutierrez, Leao 1

IV.

V.
VI.

b. Classical Natural
Law________________________________________________________________________________________________________9
c. Modern Natural
Law________________________________________________________________________________________________________12
d. Law and
Morals___________________________________________________________________________________________________________13
e. Law and
Justice____________________________________________________________________________________________________________14
Legal Positivism
a. Abstract_________________________________________________________________________________________________________________
16
b. Lloyd, Legal
Positivism______________________________________________________________________________________________________17
c. Austins
Concept___________________________________________________________________________________________________________17
d. Murphy and Coleman, The Nature of
Law_______________________________________________________________________________________17
e. Harts
Concept____________________________________________________________________________________________________________18
f. Hart, Law as the Union of Primary and Secondary
Rules____________________________________________________________________________18
g. Hart, The Foundations of a Legal
System________________________________________________________________________________________20
Critique of Legal Positivism and Natural Law
a. Dworkin, Is law a System of Rules?
____________________________________________________________________________________________20
Sociological Jurisprudence
a. Abstract_________________________________________________________________________________________________________________
20
b. Lloyd, Law and
Society______________________________________________________________________________________________________21
c. Legal
Realism_____________________________________________________________________________________________________________21
d. Llewelyn, The Bramble
Bush_________________________________________________________________________________________________22
e. Law from the Policy
perspective______________________________________________________________________________________________22
f. Reisman, A Theory of Law from the Policy
Perspective_____________________________________________________________________________22

VII.

Domino, Gutierrez, Leao 2

I.

Introduction
a. Subject Matter
i. Abstract
The question that legal theory seeks to answer is, how
do we know that what we are studying is law? It is, however,
impossible to raise such an inquiry without certain assumptions.
The subject matter, as a starting point, assumes that: (1) Law is
part of reality; and (2) we, human beings, have the capacity to
know what this reality is. Hence, the goal of this subject matter
is to show: (1) the process of how human beings know of reality
(Theory of Cognition); and (2) what is this reality called law as
different from non-law (Definition of law, i.e., law devoid
of its non-essential characteristics).
These goals, the Theory of Cognition and Definition of
Law, shall be the subject of succeeding sections of this
reviewer. But before that, let us first proceed with some
preliminaries on the subject. The purpose of this introduction is
to provide a backdrop of what one will eventually learn on detail
on the next succeeding subdivisions of this reviewer.
This introduction has two parts: (1) Legal theory in
general; and (2) important points and notes on some of the
articles discussed in class. For the first part, one will be
introduced to the subject matter from a macro perspective. Its
definition, its different names, its purpose, and the main schools
of thought (a subject that will be discussed in greater detail in
later sections). For the second part, one will be given some
pointers on what they ought to remember from each of the
important articles discussed in class. The technique employed
to supply this is based not on the article presents itself, but on
how the professor has made sense out of it. Hence, the second
part is merely a reiteration of what the professor said in class,
but in a more systematic and formal manner.
ii. In General
Law in the Abstract concerned
characteristics of Law.
Different names of the Subject Matter:
1. Jurisprudence
2. Legal Philosophy or Philosophy of Law
3. Law in the Abstract
4. Legal Theory

with

the

essential

Legal Theory (Law 117) The main schools of jurisprudential

thought, with emphasis on the philosophical influences on the
varying conceptions of ideal law and material law, and their
impact on law as an instrument of procedural and substantive
justice (UP College of Law Student Manual).
Legal Theory is for the refinement of our mind (Sison 2011).
The Main Schools of Jurisprudential Thought
1. Natural Law (Revealed by the Divine; discoverable by
Reason)
a. Classical Natural Law (Stoics St. Thomas Aquinas)
b. Modern Natural Law (Natural Rights Theorists: Hobbes
and beyond)
2. Legal Positivism (Positum - laid down by human beings)
a. Imperative Theory of Law (John Austin)
b. Rule Theory of Law (H. L. A. Hart)
c. Pure Theory of Law (Hans Kelsen)
d. Sociological Jurisprudence
i. Legal Realism (John Chip Gray, Roscoe Pound,
Karl Llewelyn, Oliver Wendell Holmes, etc.)
ii. Law from the Policy Perspective (W. M.
Reisman, Harold Lasswell, A. Scrieber)
e. Principle Theory of Law (Ronald Dworkin)
iii. Important Points and Notes on the
Articles
1. The
New
Encyclopedia
Britannica
Philosophy of law is concerned with the formulation of
concepts and theories to aid in understanding the nature of law,
the sources of its authority, and its role in society.
Three Major Subdivisions of Philosophy of Law
1. Analytical Jurisprudence concerned with articulating
axioms, defining terms, and prescribing methods that best
enable one to view the legal order as a self-consistent system
and that maximize awareness of its logical structure.
2. Sociological Jurisprudence concerned with the actual effects
of the law upon the complex attitudes, behavior, organization,
Domino, Gutierrez, Leao 3

environment, skills, and powers involved in the maintenance of

a particular society.
3. Theory of Justice concerned with the evaluation and
criticism of law in terms of the ideals or goals postulated for it.
Note:

The professor discussed that these three schools of law

correspond to the major schools of jurisprudential thought,
where, Theory of Justice refers to Natural Law, Analytical
Jurisprudence refers to Legal Positivism, and Sociological
Jurisprudence refers to Legal Realism.

2. Fernandos The Relevance of

Philosophy to Law
The law is not a self-contained system.

Philosophy is a meta-discipline of looking at law from

above. It serves to clarify matters that law cannot
answer for itself.

Professor Fernando viewed philosophy as a method of

conceptual analysis and rational justification. As a
method of conceptual analysis, it engages in the logical
clarification of concepts. It abstracts the essential
characteristics of law and differentiates law from nonlaw. This method not only serves the negative and
therapeutic of philosophy which is avoiding linguistic
confusion,
but
also
philosophys
positive
and
constructive purpose of making clearer sense of the
world and reality.

As a method of rational justification (similar to the

method of logic), philosophy is seen as a skill or an
activity engaged in reasoning; but rational justification is
used mainly on normative issues such as law. It is a
method whereby one provides reasons for ones
conclusion.

Note:
The professor focused on the idea that law is not a selfcontained system and that it requires the aid of philosophy in
order to be understood. This relationship between law and

philosophy will also be discussed later in the article of Professor

Perfecto Fernandez on Philosophy and Law.
The professor also emphasized on the process of
abstraction. He said that abstraction requires both the aid of
logic (genus et differentia definition) and psychology (Theory of
Cognition). Abstraction is of a second order knowledge, where
the goal is to conceptualize reality by defining it. In our case,
to abstract law is to conceptualize it and to remove all its nonessential characteristics.
3. Adlers The Four Dimensions
of Philosophy
4 Dimensions of Philosophy:
1. First order knowledge
a. Metaphysical questions about being; existence of
God; and the possible; human mind; human nature; etc.
b. Moral questions about moral obligation in relation to
justice, liberty, equality, democracy, socialism.
2. Second order knowledge
a. Understanding of ideas as objects of thought
b. Understanding of subjects different branches of
knowledge, the arts, and other learned professions.
Tests of Truth:
1. Pragmatic experience as basis; successful outcome as the
test.
2. Generalization theory of falsification (e.g., to know the
truth/falsity of the statement, if all crows are black, one must
only look for a different colored crow)
3. Logical Premises -> Conclusion
4. Coherence test: consistency with the system or the
coherence with the whole.
Note:

The professor did not really delve into this article. It is,
however, advantageous for the reviewee to know the difference
between first order and second order knowledge in order to
make sense of the Note on Abstraction in The Relevance of
Philosophy section.
As regards the Tests of Truth, the professor only
mentions three: (1) Correspondence (if the statement
corresponds to reality); (2) coherence (if the statement is
Domino, Gutierrez, Leao 4

consistent with the system); and (3) pragmatic (that which

works).
4. Sopers Making Sense of
Jurisprudence
Two dimensions of Legal Theory:
1. As to audience
a. Outsider is concerned with distinguishing law from
other systems of social control and seeks to characterize
and distinguish among legal systems. This refers to
knowledge of the world by describing and understanding
phenomena.
b. Insider is actively engaged in the practice of law who
wants to identify, apply, or get advice about legal norms.
He has practical concerns and wishes to know the
consequences of his conduct.
2. As to the goal of the study (motivation for undertaking legal
theory)
a. Outsider to know the difference between legal
systems and other systems of control.
b. Insider to know the consequences of his conduct;
what one ought to do.

Three recurrent issues: (1) How does law differ from and
how is it related to orders backed by threats? (2) How
does legal obligation differ from, and how is it related to,
moral obligation? (3) What are rules and to what extent
is law an affair of rules?

Definitions (in logic, i.e., genus et differentia) no longer

suffice (inadequate), the goal is to explain.

Note:

The professor noted that because language is both opentextured (one cannot know which is in there and which is not)
and open-ended (one cannot ascertain the extent of word), law,
as a product of language, becomes difficult to understand. This
is the reason why Hart said that definitions no longer suffice.
The law, as an object of reality, can no longer be subject to a
mere definition. The goal, according to Hart, is to explain law.
And this has been the mode employed by theorists starting
from early legal positivist, like Austin.
As for borderline cases, the techniques for solving it will
be further discussed in the subsequent sections, particularly on
the discussion of Dworkin.

Note:

The professor summarized this article by saying that: (1)

Outsiders study law, i.e., undertake legal theory, for
knowledges sake; (2) Insiders study law for obediences sake.

5. Harts Persistent Questions

Diseases of language: ambiguity and vagueness. This is
more manifest when the words used are couched in
general terms.
Borderline cases are cases where no legal provision can
be applied; or where there is an applicable legal
provision but it can have two or more inconsistent
interpretations.
There exist persistent questions in jurisprudence
because of the existence of these two the diseases of
language and borderline cases.

6. Lloyds Conceptual Thinking in

Law
Law resembles a kind of a game in that any such game
employs a number of general concepts, or notions which
are conventional in the sense that their meaning and
function are arbitrarily defined by the rules of the game,
but which can operate meaningfully within their
particular linguistic framework.

The scope of law entails a vastly more complex system

than that of any game, having regard to its ramifications
over the whole social life of the community.

Also, law develops and changes in a constant process of

flux whether by new legislation or by the gradual
adaptation of customary judicial or administrative rules.

Domino, Gutierrez, Leao 5

Many fundamental legal concepts are legal creations

with vitality of their own.

Dangers of Rigid Conceptualism:

When lawyers have breathed meaning and purpose into
their legal concepts and found these to be good, these
concepts tend to develop a life of their own which may carry
them on into many and unexpected paths by their own
vitality and by what are felt to be the laws of their own
inherent logic. Once these concepts are crystallized within a
legal system, the courts may decide new cases on what
they conceive to be the logical nature and requirements of
particular legal concepts. This results in an undue rigidity
and inability to adapt to new social situations.
Notes:

The professor summarized this article by stating that law

can be considered as a game with rules for the use of words.
The concept, as denoted by words, is a product of definition.
Concepts are used to create propositions. These propositions
are then used as premises to arrive at various conclusions. The
whole process from defining the concept to arriving at a
conclusion is called reasoning.
It is the rules that set the directions of the game. It is a
list of to do or not to do. The rules also provide for
consequences in case of breach. These rules are the ones that
make ones action meaningful (as in a game of chess or
basketball).
b. Theory of
DIAGRAM)

Cognition

(*REFER

TO

THE

Notes:
Abstraction the process by which essential characteristics are
derived from particular objects of reality.
Two ways to define a word (as per Betrand Russell)
1. By pointing, i.e., ostensive definition.
2. By looking at the dictionary, i.e., lexical definition.
Two kinds of knowledge
1. Sense-knowledge, i.e., apprehension (particular objects)
2. Intellectual knowledge, i.e., abstraction (concepts)

Moderate Realist Theory of Epistemology: A Model

Mind -> Will -> Action -> Conduct -> Habit -> Convention ->
Customs
II. Nature of Law
a. In General
i. Abstract
After the preliminaries, we will now proceed to the
discussion of some elements of law. The goal in this section is to
ascertain whether or not such elements are essential in the
understanding of what law is.
Before proceeding with this analysis, however, we will
first look into some of the criteria of knowing whether an
element of law is essential or not. As a guide, we will use the
standards put forth in the articles of Professor Perfecto
Fernandez on Philosophy and Law and Professor Richard
Wollheim on The Nature of Law.
Afterwards, we will examine whether the law is
necessary, and how the law is related to force, freedom, and
customs.
It bears remarking that regarding the necessity of law,
the nature of man is examined together with its impact with the
conception of law. It is argued that whether mans nature is
good or bad, law will still be necessary. Although there are
contentions that the law infringes upon the actions of those
subjected to it. There is also the relationship of law and force,
and freedom and customs.
As regards the relationship between law and force,
although it is argued that it is not necessary to coerce people to
obey the laws, coercion may still be an indispensable part of an
effective system of law.
However, there are still certain fundamental principles or
freedom that cannot be unreasonably infringed.
Lastly,
similarities and differences between laws and customs lead to
the conclusion that the substantial difference between the two
is the lack of machinery on the enforcement of the primitive
customs.
1. Perfecto
Fernandez
Philosophy and Law
Domino, Gutierrez, Leao 6

Philosophy and Law:

First Question: Is coercion an essential element of law?
No, because we recognize the existence of directory
laws, which are laws that may or may not be obeyed. This does
not mean, however, that ALL laws should have no mandatory
force; otherwise, problems relating to order may arise. In fact,
the very concept of law entails resort to physical power.
Second Question: What is the nature of law?
To answer this, there must first be an examination of the
two kinds of statements: (1) Empirical, which are statements of
facts (descriptive); and (2) Normative, which are statements
that prescribe what ought to be done or what not to be done by
human beings (prescriptive).
By its very language, law is seen as normative. Being
normative in character, it cannot be validated by science. So,
Fernandez suggests that law can be gauged by using a criterion
of validity. For Fernandez, this criterion is that of the legal
system.
The test then is: Does the law pass the test imposed by
the legal system in order for it (the law) to be valid? Hence, the
test is dependent on a particular legal system. If the law
satisfies this criterion of recognition, it becomes a rule of law.
Is moral validity required for legal validity?
Fernandez says no. Morality is different from person to
person. This subjectivity would destroy the certainty and
objectivity of the criterion used. It will pose problems relating to
obedience among the populace. If, for example, the law is
contrary to ones belief or morality, which of the two should the
person obey? Fernandez says that a person should not be
justified in disobeying the law because such law is not in
accordance with his beliefs.
Third Question: what is the end of law?
The end of law is to provide social conditions of security
and liberty essential to human achievement.
Notes:
Contributions of Philosophy to Law:
1. Nature of Law place of law in the general schema of
knowledge

2. Criterion of Law basis for declaring something law

3. The Philosophical Question, Is an Unjust Law, Law?
Fernandez sees Law as a Legal System or a set of Legal
Propositions which are statements composed of legal concepts.
Humes formulation (and the tests of validity as per Sison):
1. Normative statements validity based on criteria (legal
theory or moral theory, e.g., Austins imperative theory of law
or Benthams utilitarian theory of morality)
2. Descriptive statements validity based on the principle of
verifiability, i.e., if the statement corresponds to reality.
2. Wolheims The Nature of Law
What is the nature of law? This question can be answered in
three ways:
1. By giving a synonym
2. By giving a definition
3. By giving a general characterization
DANGER: the essence of the word might be forgotten because
we use our personal association to the word.
Whether or not a law should be considered law depends upon
each legal system. If it has through the criterion of validity that
a legal system has imposed, the law should be considered a
law.
But judges sometimes insert their moral judgments in a case. Of
course, in arriving at a conclusion, the judge may base his
argument in moral and conscientious considerations. This is
valid UNLESS the decision is patently contrary to the law. If the
judge lays down moral reasons, it is because the law allows him
to (the criterion of validity). The decision even though grounded
on moral considerations becomes legal.
b. Lloyds Is Law Necessary?
Law
- ideological in character

Domino, Gutierrez, Leao 7

Ideological forms part of our outlook upon the world, upon

the relation of man to the world and to society and all its
manifestations

Two Views on the Nature of Man

1) Evil no social progress could be attained without the
restraints of penal law; Law is an indispensable restraint
upon the forces of evil
2) Good due to sin, corruption, etc., mans original and
true nature become distorted and this required for its
control the rigors of the punitive system of law; Those
who view man as inherently good seek to find the
sources of the ills of mans present condition in
situations external to man himself - criticism to the
government and the legal system through which they
exert their political authority
c. Lloyds Law and Force
Is Force an Essential Characteristic of Law?
Authority: Some person is entitled to require the obedience of
others regardless of whether those persons are prepared to find
the particular order or rule enjoined upon them as acceptable or
desirable or not.
There is a very definite connection between the idea of
legitimate authority, which has to be obeyed because of its very
legitimacy, and moral obligation, which imposes a rule which
calls for voluntary adherence by virtue of its intrinsic rightness.
The notion of authority which is acknowledged as legitimate
derives much of its strength from its link with moral obligation.
Charisma (Max Weber): from the Greek word charisma
meaning grace. Refer to that peculiar form of personal
ascendancy which an individual may acquire in a particular
society, and which confers an indisputable aura of legitimacy
over all his acts.
It is argued that people obey the law not because they are
constrained to do so by force but because they consent or at
least acquiesce in its operation and it is this consent rather than

any threat or force which causes the legal system to work. The
idea of the democratic societies is that universal suffrage and
majority rule is the means by which the individual from time to
time manifest his adhesion to the government. This mode of
thought is seeking to achieve is not to eliminate force in the
legal process, but rather to remove the emphasis from coercive
subordination to voluntary consent or acquiesce.
Traditional Domination vs. Legal Domination
Traditional
While charisma may create authority by the sheer personal
ascendancy of a new leader and thought there may be a natural
tendency for this extinguished on his death it by no means
follows that such charisma will attach to his person alone, it
may pass to his successors
Legal
Under this system, legitimate domination has become
impersonal and legalistic so that the institutional character of
authority has largely if not wholly displaced the personal one.
Law and Coercion
In less developed societies, coercion tends to take form not of
the centralized forces but rather of each man helping himself
with the aid of his kinsfolk. Even on the level of national law, the
law is obliged to apply legal coercion to whole groups as well as
individuals.
Freud:
insisted on the necessary connection between civilized society
and coercive social order. This is because of his belief on the
existence of mans aggressive urges that can be repressed but
not eliminated.
It has been a characteristic of developed state law that as the
use of force has become more closely regulated and more
efficiently brought to bear upon the recalcitrant it has been
pushed further and further in the background.
Though coercion may be an indispensable part of an effective
system of law, there seems to be no reason why we should
Domino, Gutierrez, Leao 8

insist that this necessarily entails annexing penal consequences

to every individual rule comprised in the legal system.
d. Lloyds Law and Freedom
Types of Society:
1) Open there is a wide field left for personal decision and
for the assuming of individual responsibility
2) Close there is almost tribal or collectivist pattern;
community is completely dominant.
Types of Freedom:
1) Positive in the nature of spiritual conception, implying
as it does some kind of maximum opportunity for the
self-realization of every individual to his full capacity as
a human being
2) Negative concerned with so organizing the pattern of
the society, that despite all the restraints and limitations
that are placed upon individual action for the benefit of
society as a whole, there nevertheless remains as a
large sphere for individual choice and initiative as is
compatible with the public welfare
Law is said to bind those subject to it. But not all freedom is
necessarily good. The word covers a vicious license as well as
true liberty. The purpose of the law is to eliminate the first and
promote the second.
The only reason why it is good for a person to be free from
various restrictions and hindrances is that he may be free for
the kind of life he was meant to live, for the attainment of his
end. Law curtails freedom from because it imposes obligations a
man would otherwise be free from, but it enhances freedom for
because it enables a man to live the kind of life he has been
created for.
Law frees man from bondage to ignorance and error without
lessening mans responsibility and self-control. In the sense, it is
correct to say that true freedom is the right to do what we
ought, and the law shows where the ought lies. (Fagothey)

Note:
Conflicts may arise between the various types of fundamental
rights accepted in the modern democratic state. Attempts have
been made to try and delineate some sort of natural-law basis
upon which a scheme of preferred values might be erected.
Customary International law has hardly provided much
assistance. It imposes very few restraints upon the sovereign
power of a state to deal with its own citizens or resident aliens,
and in any event no judicial or other machinery is provided for
such issues to be investigated or made the subject of judicial
rulings. For this purpose, there are at least two requisites,
namely, in the first place a clearly laid down code of established
human rights accepted by all civilized states, and judicial
machinery whereby issues involving alleged infringement of
these rights can be investigated or made the subject of judicial
rulings.
e. Lloyds Law and Customs
Customary Law
- norms operating in less developed societies;
- Operates at all levels of the society
- It is impossible to differentiate between legal, moral and
religious norms.
Habit is a course of conduct which we regularly pursue but
without any sense or compulsion to do so.
Conventions represent the attenuated survivals of customs of
an earlier period
Note:
Both customs and conventions are normative
Two important misconceptions:
1) In early society, custom was completely rigid and
unchanging, and that primitive man was born into a
helpless condition of total conformity to the tribal
custom.
Studies show: Custom was subject to constant
adaptation to new situations
Domino, Gutierrez, Leao 9

2) Primitive man was caught up like a fly in a web of

inherited custom that so great was the fear of the forces
of religion and magic that violation of custom by an
individual offender was unthinkable
Studies show: Custom was self-enforcing and any
occasional violation would be left to the supernatural
powers
Note:
The purpose of sanctions is to maintain the social order in the
community for the breach is seen as disturbing social solidarity.
The vital contrast between law and primitive custom is not that
the latter lacks the substantive features of law; or it is
unsupported by sanctions but simply that there is an absence of
a centralized government.
Due to the absence of machinery for enforcing decisions,
primitive law is dependent on rather indiscriminate modes of
enforcement including self-help remedies applied by the nextof-kin of the injured person.
III. Natural Law
(Right and Reason by Austin Fagothey; Natural Law Theory of
Thomas Aquinas by Susan Dimock; Arguing about Law by
Andrews Altman)
a. Abstract
The theory of Natural Law can be divided in two:
Classical Natural Law and Modern Natural Law. One of the main
thinkers of Classical Natural Law is St. Thomas Aquinas. He
stated that the universe is governed by a single, self-consistent,
and overarching system of law. On the other hand, the modern
Natural Law Theory differs from the Classical on its emphasis,
shift, and basis.
There are also conflicting views on the relationship of
law and morality. One of them is the idea that law and morality
are one and the same. Some see morality as a higher form than
man-made law and yet there is another view which states that
they can be separated.
Lastly, the discussion on justice shows the different
views on justice and its relationship with law and morality.

b. Classical Natural Law

Before, it was accepted that the laws of the state were
sacred and beyond all criticism but the ancient philosophers
claimed that the rules of positive law were subject to evaluation
on the basis of the principle of natural law. These principles
represented a higher law by which the goodness or badness
of positive (or man-made) law could be determined. (Altman)
Meaning of Law
Moral necessity Law directs free beings by imposing on their
free will the restraint of obligation or duty or oughtness. This
way of regulating human acts is in most keeping w/ mans
dignity.
Physical law Law as applied to nonfree beings observable in
the uniformity or regularity of their behavior. This is the physical
necessity to follow a pattern of activity. (Fagothey)
GREEK/ARISTOTLE:
Law is understood in the sense of human convention and
contrivance such that if nature and law are put together as
natural law, it would seem contradictory Universal law is the law
of the nature. There is a natural justice and injustice binding to
all men. (Fagothey)
GREEKS vs. HEBREWS: On Obeying the Laws
Greeks see obedience as a principle of morality, moral law
as separate from state law and that moral law does not override
the law of the state. In contrast, Hebrews believe that Gods
will dictates a moral pattern and obedience is secured
by divine punishment. They rejected the human law as
embodiment of morality but they equated law with morality
moral/religious law laid down by God/developed by divinelyinspired human beings. Human law is to be obeyed only when it
corresponds with divine law. (Lloyd, Law and Morals)
STOICS/CICERO:
First to make wide use of the term natural law.
Domino, Gutierrez, Leao 10

It is the absolutely necessary course that nature fatalistically

follows, with no distinction between physical and moral law.
Reason urges us to obey it willingly rather than have it forced
upon us.
CICERO:
Natural law is unchanging over time and exists in different
societies; every person has access to the standards of natural
law by use of reason; only just laws really deserve the name law
and in every definition of law there inheres the idea and
principle of choosing what is just and true. (Kelsens Pure
Theory of Law)
ROMANS:
distinguished between jus (the right) and lex (the law)
legislator of natural is God
CHRISTIAN/EARLY CHURCH WRITERS:
God acting as lawgiver sets the law for His creation by His
wisdom and enforces it by his will. Christians regarded nature as
Gods creation. St. Augustine developed the notion of an eternal
law as the law created & given by God.
Questions:
Are natural morals included?
Can there be an authoritative interpreter of natural law?
If so, how does the law remain natural? (Fagothey)
AQUINAS (according to Altman/Dimock): The universe is
governed by a single, self-consistent, and overarching system of
law. This entire system is under the direction and authority of
the supreme lawgiver and judge, God. Human law occupies a
lower tier. In order to be valid law, practical directive
must be an accordance of reason; it must be issued by
the person/group who holds law-making authority within
the community; it must be directed toward the common
good; and it must be promulgated.
1) practical directive must be in accordance with reason;
must be directed toward the common good;
Law is an ordinance of reason. Aquinas also believes that the
end of all we do, when we act in accordance to reason, is

happiness. Hence, law must aim at happiness (not of a certain

individual but the happiness) of the whole as a perfect
community. The law must serve the common good. The law
also serves to unify the diversity of people. Aquinas believes
that men have different needs biological, intellectual and
spiritual and it is the aim of the law to achieve these needs.
2) must be issued by the person/group who holds lawmaking authority within the community;
Aquinas also believes that the making of a law belongs
either to the whole people or to a public personage who
has the care of all the people. Aquinas believes that the
relationship between the ruler and the ruled is natural there
are some who are naturally fit to rule and others who are
naturally fit to follow the rulers commands. These political
relations must contain a coercive component and there came to
be added to the rulers authority the coercive power of making
laws and compelling obedience through the threat of penalties
for those who transgress the law.
3)

must be promulgated

For law to be valid it has to be public.

Reasons:
1) People can use the law as a rule and measure for their
conduct only if they know what the law enjoins or forbids
them to do; and
2) Both the obligation to obey the law and the permissibility
of punishing those who violate presuppose that the laws
which people have an obligation to conform to can be
known by them.
Four Kinds of Law:
Eternal Law- Consists of those principles of action and notion
that God implanted in things in order to enable each thing to
perform its proper function
*According to Aquinas, The whole community of the universe is
governed by the divine reason. And since the divine reasons
Domino, Gutierrez, Leao 11

conception of things is not subject to time, but is eternal

therefore it is that this kind of law must be called eternal.
* This is called the ultimate norm of morality. Human act is
good because it shares through the eternal law in the goodness
of God. (Fagotheys Discussion on Eternal Law)
Natural Law- Consists of principles of eternal law specific to
human beings. Such principles are knowable by our natural
powers of reason. Obedience to natural law is obligatory and
disobedience is wrong for to achieve common good, natural law
must be obeyed.
*Man, having reason & free will, doesnt just simply obey
eternal law but participates fully in the law. The fundamental
precept: Do Good, Avoid Evil
Human Law/ Positive Law- consists of rules framed by the head
of the political community for the common good of its
members.
*Human law is needed to clarify natural law. Another reason for
needing natural law is because we sometimes fail to willingly
follow the dictates of natural law.

Two ways: deductive and inductive:

a) deductive from natural law to positive law this has
a force of natural law thus we have acts mala in se or
acts w/c in themselves are morally wrong
b) inductive positive law related to natural law thus
we have acts mala prohibita or acts w/c in themselves
are not morally wrong but are otherwise prohibited by
law.
Law must be just. A law that is just is morally binding. A
thing is just if it is according to the rule of reason. But
the first rule of reason is the law of nature. If a law does
not conform to the rule of nature, it lacks the force and
status of law, it is not just.
Justice according to Aquinas: Demands that the burdens
and benefits of society be distributed proportionately
and in the service of the common good. Human law

doesnt proscribe all virtues. It prohibits only those w/c

are possible to abstain and those that are hurtful to
others.
Divine Law- exists over and above natural law, guiding us to the
ultimate goal: eternal salvation.
Reasons for having divine law:
A) Eternal happiness is beyond mans faculties.
B) We need a standard for all, a law that cant err.
C) Laws govern only external acts we need something
that can permeate even thoughts.
D) We need to punish all other vices left unpunished by
natural & human laws.
Because men cant know, by natural reason unassisted by
divine revelation, what God demands of them in order to be
worthy of eternal happiness, divine aw is needed.
Law is a rule and a measure. It is a system of rules by w/c
human beings are to direct their behavior to the common good.
To the natural theory of law can be attributed the retributivist
theory of punishment whereby sinners are punished
proportionately.
ENLIGHTENMENT:
God as lawgiver drops out. There is natural law without
an eternal law, without a lawgiver, without any really
binding obligation.
Human nature is regarded as eminently knowable by
human reason. They way to find human nature is by
stripping from man the artificial accretions of
civilizations so that he may be seen in his native state or
state of nature. (Fagothey)
Evidence of the existence of natural law: (Fagothey)
1) Existence of: values and their objective basis,
preeminence and self-justification of moral value, its
irreducibility to any other value and its absolutely
imperative but noncompulsory necessity, the inner drive
of each being toward the attainment of its end, ability of
men using reason to distinguish moral good from moral
Domino, Gutierrez, Leao 12

Reasons:
1) It must be law it needs to have binding force; not mere
wish or hint
2) It must be a moral law physical laws are only suitable
to nonrational beings. External compulsion would mean
that man must accomplish his end despite his will, and
would do violence to human nature
3) It must be natural law mans nature is the means that
will guide him to his end.
Man comes to know natural law by the use of his reason by
drawing conclusions about his own nature. He can compare his
conduct with his nature and understand the conformity and
nonconformity between them and he will then make rules of
conduct that will be able to preserve the conformity.
(Connections between natural conditions and systems of rules
are not mediated by reason but are rather based in the
following truisms: human vulnerability, approximate equality,
limited altruism, limited resources, and limited understanding
and strength of will. - Hart)
Natural law consists of precepts of varying degrees of
importance for the welfare of humanity.
Natural law is both absolute and relative. Man is a rational
animal but he grows and develops, too. Natural law must
pertain to mans rationality and is absolute in this sense but it
must also be relative to become adjustable to fit human
progress. Justice remains the same but the mode of acquiring it
changes.

Context Emphasis

Man must be directed to his proper good by means that are

both effective (powerful enough to produce the effect) and
suitable (to mans rational and free nature).But that only means
both effective and suitable is the natural moral law.

c. Modern Natural Law

1. Emmanuel Fernandos Natural
Rights Legal Theory
The thrust of the Classical Natural Law Legal Theory is that
there is a conceptual connection between positive law and
morality, and that the oral order is part of the natural order.
Modern Natural Law Theory can be distinguished from Classical
in 3 aspects: emphasis, shift, & basis.

Basis

evil these things when taken together adds up to a law

and since it is rooted in mans nature, natural law.
2) Existence of scientific knowledge is evidence that there
are laws governing the activity of beings

Classical
Universecentered focus on
the
general order of the universe
& the
interconnectedness
of those
Human
nature
w/in
the
context of society because
man is a social/political being
& he who lives outside of the
society is either a god or a
Dutybased natural law
prescribes duties w/c man
has to comply with & mans
rights are based on duties
situated in a general order

Modern
Mancentered focusing on
his separatedness as a
person,
equality,
and
brotherhood
Extended the idea of human
nature & applied it to the
context of the state of
nature before society or
government;
man
have
Rightbased rights in the
state of nature, from w/c
duties can be derived; all
men have rights and we
have a duty to respect

MAIN CHARACTERISTICS & DISTINGUISHING FEATURES OF

NATURAL RIGHTS LEGAL THEORY
The 5 basic distinguishing features of natural rights theory are:
1. Existence of selfevident truths
2. Adherence to natural equality
3. Existence of natural rights
4. Derivation of power from the consent of the governed
5. Limitations on the powers of the government
Existence of self-evident truths
Classical truths remain in the abstract while Natural rights
truths specify in detail, concreteness, and greater unanimity.
Adherence to natural equality
The state of nature, mans original state before society or
government, is where man derives equality. Inequality exists
Domino, Gutierrez, Leao 13

Existence of natural rights

1. Concept of Right
Legal rights come from law & are upheld/protected by legal
institutions. Moral rights are derived from morality & may
provide justification for legal rights. Natural rights are a subset
of moral right, that man is entitled to certain rights.
A right is both a liberty to do something as well as a claim
against someone entailing a duty on the latters part not to
interfere w/ that liberty. Liberty entails no corresponding duty
on the part of a 3rd person, it is considered as a legal relation.

tyInalienabili Derivation

Hobbes & Locke: Natural Rights

Hobbes
o Mans condition in the
state of nature, in pursuit of
his desires
o Liberty absence of
external impediments
o Virtually all rights may be
alienated,
and
he
surrenders his right to
govern himself to a
sovereign

Locke
o Natural rights is derived
from mans condition in the
state of nature
o Mans nature is limited by
the law of nature. Rights
o There is a right to punish in
the event of a violation of
right or natural law. There is
also a right to reparation &
right to assist those injured

natureState of

Derivation of power from the consent of the governed Manner

of Derivation
Hobbes
o Man is selfish by nature.
He desires good and hates
evil. Happiness consists in
the fulfillment of desires;
desires are based on the

Locke
o Man has a more rational or
enlightened selfinterest
o There are many things
wanting in the state of
nature: a) established &

consentManifest
contractSocial

when he enters the society & government, and leaves the state
of nature.
Man is factually equal in the state of nature. The moral
principle is that man ought to be treated equally in the sense
that he has equal rights which ought tobe individually
respected.

o 3 descriptive laws of
nature derivable given that
man is in a state of war: a)
man endeavors to
seek peace to seek peace
i. Express words spoken,
promise, etc
ii. Inference silence,
actions,
etc.

o Men will agree to yield

certain rights & transfer such
to an authority so as to
escape
the
great
inconveniences found in the
o There is a difference
between an obligation to
obey the laws of nature
(tacit
consent)
and
an
allegiance to government

d. Law and Morals

1. Lloyds Law and Morals;
Harts Justice and Morality

Hart:
Morality of a given society refers to the standards of conduct
w/c are widely shared in a particular society. These rules are
distinguished from others bec of serious social pressure,
sacrifice of personal interest, threats of punishment, appeal to
respect or guilt. There is an overlap in content between legal
and moral obligation although the requirements of laws are
more specific than moral rules.
Lloyd:
There is no necessary coincidence between law and morals. The
convergence of law with morality was because of three factors
namely:
1) Law and morality reinforce and supplement each other
2) They play an important law in establishing the authority
of law and ensuring obedience.
3) Both are couched in normative language.
Divergence
1) Law may only reflect popular morality and the higher
ethical standard may not be embodied in popular
sentiment.
2) There are certain areas where the law prefers to abstain
from supporting the moral rule because more social evil
may be created than prevented by the intervention.
3) There is a sphere of morality which is best left to the
individual conscience Libertarian approach.
Domino, Gutierrez, Leao 14

2 difficulties arise in characterizing rules w/c belong to

morality & make conduct morally obligatory (Hart):
morality have their own area of vagueness
there are disagreements as to the status of rules in
relation to human knowledge and experience
Conflict bet Positive Law & the Moral Law
Law & morality is interrelated & they interact w/ each other but
there is a possibility of serious divergence.
1) Law and Morals must necessarily coincide either
because moral law dictates the actual content of human
law. Only the moral law is valid and the rest must
conform to it. Morality= Obedience to the law.
2) Man-made law and moral law enjoy a realm of its own
but since the moral law is higher, it provides a
touchstone for the validity of human law. (classical
natural law theory; natural rights of man)
3) Autonomy of each sphere so that neither can resolve
questions of validity save in its own sphere (Positivism).
This is a pragmatic view of moral law and the conflict
between legal & moral duty may be resolved in
accordance w/ the dictates of conscience.
e. Law and Justice
1. Lloyds Law and Justice;
Harts Justice and Morality
Art. 19. Every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone
his due, and observe honesty and good faith.
Justice is a moral value or an aim or a purpose that man sets
himself in order to attain the good life. What is the ultimate
good is not a matter of demonstration but of choice. (Lloyd)
Justice thought as maintaining or restoring balance or
proportion. The term just and unjust could almost equally be
conveyed by the words fair and unfair.
Fair is relevant in two situations:

1) When the concern is not who a single individuals

conduct but with the way in which classes of individuals
are treated
2) When some injury has been done and compensation or
redress is claimed
The close connection between justice in the administration of
the law and the notion of a rule has made some think that
justice is identified w/ conformity to law. The law itself cant
determine what resemblances & differences it must
recognize if its rules are to treat like cases alike. The
criteria of relevant likeness and differences vary w/ the
fundamental moral outlooks of persons or society.
The principles of justice do not exhaust morality. Laws may be
condemned as morally bad simply because they require men to
do particular actions, which morality forbids them to do, or
because they require men to abstain from doing those which
are morally obligatory. (Hart)
Note:
The similarity between law and justice is that there is a sense of
distribution.
Formal justice may fail to result in substantial justice. An unjust
law perfectly justly administered may embody the most
profound injustice. We choose to accept the criterion by which
conduct is judged. Here there is little distinction between what
we view as good and just.
Platonic Justice:
Plato: Every person is inherently adapted to some specific
function and that if he departs from that function, he is guilty of
injustice. (An inadequate criterion of any ultimate good which
our own society may aim at achieving)
Formal Justice and Equality:
In modern times, justice had been equated with equality. A law
which is applied without discrimination in this way may be
regarded as the embodiment of justice. Justice, in this sense, is
really no more than a formal principle of equality.
Domino, Gutierrez, Leao 15

Formal justice requires equality of treatment in accordance with

the classifications laid down by the rules, but it tells us nothing
about how people should or should not be classified or treated.
3 Related Conceptions:
1) There shall be rules laying down how people are to be
treated in given cases;
2) Rules shall be general in character;
3) Justice requires that these general rules shall be
impartially applied.
Substantial Justice:
To achieve substantial/concrete justice, the formal requirements
of justice need to be supplemented
1) Concrete Justice: There are certain differences
between human beings that are not appropriate
grounds for discriminations like sex, race, color and
religion. Adherence to a value-judgment of this kind
is clearly one of conscious choice and moral
conviction which cannot be deduced from the formal
criterion of equality incorporated in the idea of
justice.
2) Equity: Justice should be administered with mercy
which means that legal justice should be tempered to
the individual case in the spirit of equity.
Legal Justice
The formal aspects of justice & the basic characteristics of law
correspond. This can be attributed to the fact that legal
conceptions exert influence over the way in w/c ethical
concepts of justice has developed separate from, but closely
related to, the formal structures of a legal system.
The three aspects of formal justice:
1) Existence of Rules: Legal system contains rules which
regulate human behavior and settle disputes
2) General Application: Laws are not necessarily general
3) Impartial Application: Impartiality is the aim but
application is different. We would still have to look into
the social development of the people to say if there is
impartiality.

Aristotle: Equity mitigates the harshness of law

Both justice and law saw the need to soften the rigors to meet
difficult individual cases since applying too my equity/rigidity
will make the law lose its character.
Legal Injustice
Three Types of Cases wherein injustice may arise from the law:
1) Law is treated as synonymous with justice but falls short
of the ideal standards; (Lloyd: different interpretations of
the law is not injustice per se; it is the law itself that
must be devoid of justness)
2) Law is not duly administered impartially;
3) Law is unjust if judged by whatever value system may
be applied to test the substantial justice of the legal rule.
Law and Substantial Justice
Law needs to possess a just content conforming to the criteria
of rightness based on values outside of justice. Allowing the
flexibility on rules by conferring in judges and other officials the
possibility of developing the law and adapting it to the needs of
the society would give the judiciary scope within the rules to
regard the dominant values accepted in the society. The
legislative & judiciary branches can be given guidance to the
values to adhere to in arriving at decisions or in making new
laws. It may serve a country w/ a long tradition of an ordered
government & w/ a fairly homogenous population.
IV. Legal Positivism
a. In General
i. Abstract
The school of Legal Positivism found its roots from the
idea of Hume that human inquiry has two sets what is and
what ought to be. This idea is followed by Benthams concept of
utilitarianism which set the atmosphere for the emergence of
Legal Positivism.
Legal positivism is law as it is or positive law. In
contrast to natural law, legal positivism separates the field of
law from morality. What is legal is not necessarily moral.
According to Austin, law may be immoral but still valid as long
as it is enacted by a sovereign. This sovereign can be the
monarch or the legislature. Law as being enacted by a
Domino, Gutierrez, Leao 16

sovereign is the crucial concept of legal positivism. For legal

positivists, laws draw their validity from a person or group
vested with authority. The question is, who vests this authority?
Hart attempts to answer this question by saying that authority
can be found in rules of recognition (ex: Constitution).
Laws issued by the sovereign should be followed by the
people whether under pain of punishment (Austin) or social
pressure (Hart). However, the sovereign itself obeys no one.
Thus, the sovereign is supreme. One main difference between
Austin and Hart is that for the former, law is a command, while
for the latter, law is a rule.
Furthermore, legal positivists assume that there is
always a law applicable to a given situation. Rules govern
society in this way. However, in case there is no existing rule
that can solve a particular problem, the sovereign can delegate
its authority (delegated authority) to a group which is tasked to
decide the case using their discretion and wisdom (Austin). This
is the role of judges in a given society. The judges make new
rules or adapt old rules and the sovereign can either overturn
their creations or tacitly confirm them by failing to do so.
This delegated authority, if anything, shows how legal
positivism fails on its proposed theories. Legal positivism has an
obsession with rules and how rules should cover every
transaction of mankind. However, should these rules fail, the
task is then passed on to the exercise of discretion by a given
group. Thus, this obsession with rules eventually gives way to
human discretion and how the courts can enforce authority
without rules. This contradicts the positivist principle that rules
must exist first before a judge can enforce. This is where legal
realism comes in, which will be discussed in the next chapters.

Notes from Sir Sison:

Legal positivism is conceptual or formal. It is a decision made
by human beings.

Key tenets of Legal Positivism (Dworkins summary in Is Law a

System of Rules?)
1) Law of a community is a set of special rules, as
distinguished from social rules (custom, culture), used by
the community directly or indirectly for the purpose of
determining which behavior will be punished or coerced
by public power.
2) The set of valid legal rules is exhaustive of the law, so
that if someones case cannot be covered by existing
rules, judicial discretion is allowed by the sovereign.
3) Legal obligation is the result of valid legal rules that
require the person to do or to refrain from doing
something.

Main Distinction between Natural Law and Legal Positivism:

ii. Definition and Concept

Legal positivism- man-made law as it is set (posited) by man for

man rather than as it ought to be. It implies that legal rules are
valid not because they are rooted in moral or natural law, but
because they are enacted by legitimate authority and are
accepted by the society as such. (Source:
http://www.businessdictionary.com/definition/legalpositivism.html)

Definition of Law

Natural Law

Legal Positivism

If law is
inconsistent with
morality then that
is not a valid law.

What is legal is not

necessarily moral
as long as it is
enacted by a
sovereign (Austin)

Domino, Gutierrez, Leao 17

or by rules of
recognition (Hart).
Valid law is
characterized as
right or wrong.
Law is laid down by
human beings.
moralityprinciples which
determine if an act
is right or wrong,
good or bad.

Law is a norm, rule

or command.

Law is formal.

Source of Law

God

Sovereign
(monarch or
legislature)

1. Lloyds Legal
Positivism
HUME:
There are two sets of human inquiry what is actually the case
and what ought to be the case; ought propositions normative
and actual propositions norms.
Law differs from moral norms since it calls for a certain measure
regularity of observance while a moral rule may still be held
valid even if it is never or scarcely ever observed. Hume
indicated to be sought in certain ends or aims of human life
were determined not by reason but by the desires of mankind
passions.
KANT:
Recognized the two realms of is and ought but asserted that
the latter contained the absolute rule of morality categorical
imperative.
BENTHAM:
Utilitarianism: maximizing human happiness according to the
slogan the greatest happiness of the greatest number. The
principle of utility was itself a metaphysical principle.
2 aspects of utilitarianism:
1) Firm distinction between law as it is and as it ought to be
2) Treating law as a science

Positivists attack the natural law because by regarding a certain

inherent moral quality as an essential feature of law without
which it is not law at all, it tends to confer on established law a
sanctity to which it is not always entitled, and so creates a
barrier against law reform.
Natural Law: A judge to perform his legal duty should refuse
apply unjust laws as being invalid.
Legal Positivist: Judge is appointed and paid to apply municipal
law as established organs of law-making and not to indulge in or
to apply his personal speculations as to system of higher law. It
is the judges legal duty to apply that law according to its letter
and spirit.

Law could only be properly understood if it was treated as an

autonomous field of study free from all issues of morals, religion
and the like. The question of the goodness or the badness of
any given law was to be adjudged by the principle of utility.
Legal duty does not cease to be a legal duty because the citizen
is persuaded of the moral iniquity of the duty, but whether he
chooses to comply or obey is a question for his own conscience.
Law as a Science
COMTE:
Believe that adequate knowledge could be attained only by
employing the scientific method of investigating reality by
Domino, Gutierrez, Leao 18

observation and
investigation.

subjecting

its

theories

to

empirical

Criticisms of the Conceptual Approach

1) Tends to induce a frame of mind where legal concepts
are regarded as possessing a certain inherent structure
and that any developments of law which disregard this
structure is illegitimate. This may pose an undue
restriction on the legal process
2) Legal problems can be solved by means of logical
analysis disregarding the role that policy plays at
arriving at legal decisions.
3) The level of investigation only uses second-order facts
and not primary facts including behavior of legal
officials, judges and others.
b. Austins concept
1. Murphy and Coleman, The
Nature of Law
The command theory of law (He makes the concept of
command central in his theory of law.)
Why? Because of the non-optional nature of legal
requirements
-The law is a coercive method of social control, not a moralistic
advice. (identifies legal obligation with force)
-The law demands the attention and compliance of those to
whom it is directed.
-command- 1) signification of desire of the sovereign 2)ability
to inflict evil or harm for the nonsatisfaction of desire
-Austins concept is more applicable to criminal law, because his
concept of punishment is only applicable to laws that prevent
us from doing certain things (ex: killing, stealing) but not to
laws that allow us to do certain things (ex: validity of contracts)
Notes:
Characteristics of Law:
-Orders backed by threats
-majority of a social group habitually obey the orders backed
by threats of the sovereign person or persons, who themselves
habitually obey no one. (Harts summary of Austins theory in
The Foundations of a Legal System)

- Obligation is based on a rule and a rule is based on a general

command, and a command as an expression of desire that
others behave in a particular way, backed by the power and will
to enforce that expression in the evnt of disobedience
(Dworkins summary of Austins theory in Is Law a System of
Rules?)
-Law is a command of the sovereign to render him legal
obedience.
command
-That sovereign is not subject to anyone else.
-Violating the command would subject you to sanction or
punishment.
-Gunman metaphor: gunman putting a pistol on your head
uttering the words, your money or your life
-Law also draws validity through habituality. The more one
repeats an act, the more other people will obey the law.
Prescriptive (what ought to be) vs. Descriptive (what is)
-Austin terms this as normative jurisprudence (prescriptive) and
analytical jurisprudence (descriptive). He rejects normative
jurisprudence. Instead, he characterizes the law as it is.
-It is not enough to say that laws are prescriptive because even
if you have the Constitution, when no one obeys this as a point
of fact, then no one can recognize it as a standard. Thus, it is
also crucial that laws are descriptive of reality (i.e. that people
as a fact obey the law or at the very least know that they
should obey the law) (from Murphys The Nature of Law)
What gives the sovereign a cloak of authority is measured by
how habitual people obey its laws.
What makes people obey the law of the sovereign is the fear of
being subjected to punishment. A persons beliefs, fears, and
motives in obeying the law are not relevant. Obligation is
viewed in terms of the chance or likelihood that the person
having the obligation will suffer a punishment or evil in event of
Domino, Gutierrez, Leao 19

disobedience. Statements of obligation predict ones chances of

incurring punishment or evil. Thus, this makes the obligation
to obey the law predictive.
Habit vs. Rule (Concept of Habit of Obedience discussed in
Harts Sovereign and Subject)
Similarity:
1) Must be general
2) Repeated when occasion arises
Difference:
1) Deviation from the regular course need not be a matter for
any form of criticism.
2) Where there are such rules, not only is such criticism in fact
made but deviation from the standard is generally accepted as
a good reason or making the criticism.
3) Habits are not normative and cannot confer rights or
authority on anyone.
External aspect of rules: uniform behavior shows that a rule is
efficacious
Internal aspect of rules: a standard for members of society to
follow a rule.
c. Harts concept
1. Harts Law as the Union of
Primary and Secondary Rules
Rules- obligations with serious social pressure, may or may not
be customary
Hart criticizes Austins theory in several ways:
1) Austins concept assumes that there is only one
sovereign. What if the sovereign dies and he is
succeeded by another? Should the old sovereigns rules
still be followed? Also, Austin states that a new sovereign
gains authority when people habitually follow his rules.
However, how do you characterize that nebulous
transition wherein he has not prescribed any rule yet?
(legislation with a dead legislator persistence of law)
2) Austin likens the force (which impels people to obey the
law) to a gunman. Hence, he seems to imply that the
gunman of society indeed makes the law (from Murphys

The Nature of Law). This is an absurd metaphor

because it depicts law as a wrongdoer.
3) Austins theory is only applicable to criminal laws, where
there always is a sanction. However, there are varieties
of laws that confer legal power to adjudicate or legislate
(public powers) or to create or vary legal relations
(private powers) which cannot be construed as orders
backed by threats.
4) Austins predictive interpretation of legal obligation
suffers from two errors: 1) If it is true that an obligation
is characterized by punishment in case of disobedience,
how will this be a form of obligation? He is merely
coerced into doing something. It is the fear of force that
makes a person obey. 2) Predictive interpretations
obscure the fact that, where rules exist, deviations from
them are not merely grounds for a prediction of hostility
or sanctions, but are also a reason for applying those
sanctions.
Hart refutes Austins theory by asking, What must be added
to a command to make that command a law? (from
Murphys The Nature of Law)
-There must be rules of recognition.
Rule of recognition- affirmative indication that it is a rule of the
group to be supported by the social pressure it exerts
- Acknowledgement of reference to the writing
as authoritative in order to dispel doubts as to
the existence of a rule
- In a developed legal system, rules of
recognition are more complex in the sense
that they do not simply refer to a text (ex:
This is ordained by the Constitution.)
- Instead, they refer to some general
characteristic possessed by primary rules (ex:
fact of having been enacted by a specific
body like Congress, long customary practice)
Characteristic of Law:
-Rules are conceived as imposing obligations when the general
demand for conformity is insistent and the social pressure
Domino, Gutierrez, Leao 20

brought to bear upon those who deviate or threaten to deviate

is great.
-it is the insistence on the seriousness of social pressure that
gives rise to obligations and makes people obey the law,
instead of Austins gunman metaphor.
There is a difference between those who voluntarily cooperate
to see that laws are followed and obeyed in contrast to those
who reject them and just merely conform to prescribed external
behavior just to avoid punishment. In order to retain a legal
system, it is crucial that the first kind of law-abiding citizens are
the majority in a society, since what makes the minority obey is
the overwhelming social pressure on them. Otherwise, this
minority would have too little social pressure to fear.
Primary rules- rules that contain restrictions on the free use of
violence, theft, deception to which human beings are tempted
but which they must repress if they are to coexist in close
proximity to each other
Secondary rules- those that stipulate how and by whom such
primary rules may be formed, recognized, modified or
extinguished (public powers)
Rules of Change- 1) new primary rules enacted by an individual
or a body of persons for the conduct of life of the group or some
class within this group 2) eliminates old rules
Rules of adjudication- 1) secondary rules empowering
individuals to make authoritative determinations of the question
on a particular occasion a primary rule has been broken 2) This
is the role of the judiciary in the Philippines. 3) Judgments will
become a source of law.
In a way, rules of adjudication are a crude form of rules of
recognition. Since courts are given the power to make
determinations on primary rules, then it presumes that rules of
adjudication have given them the authority to do so. Hence, this
rule that conferred jurisdiction on the courts is a form of rule of
recognition.

Harts solution for the pitfalls of Austins theory:

Harts concept dispenses with the issue of a dead sovereign
since authority is derived from an ultimate rule rather than an
authority figure. Furthermore, he replaces the gunman
metaphor with serious social pressure. Lastly, Harts concept of
law is not merely limited to laws that prescribe punishment.
2. Harts The Foundations of a
Legal System
There must be authoritative criteria for identifying primary rules
of obligation. Refers to an authoritative text or legislative
enactment
Ultimate rule- 1) a rule of recognition that provides the criteria
by which the validity of other rules in the legal system is
assessed 2) often shown not said
Rules of recognition- specify criteria of legal validity
Rules of recognition are the most fundamental laws of a legal
system. Hence, it is unquestionable. It escapes the conventional
categories used for describing a legal system. It cannot be
assessed for it itself prescribes those standards for assessing
primary rules of obligation. It is not valid in the sense that it is
ultimate and so cannot meet tests stipulated by a more
fundamental rule.
Obedience from the standpoint of the citizen:
Average citizen only cares about avoiding sanction but rules of
change, rules of adjudication and rules of legal validity are still
important for courts and legislators.
V. Critique of Legal Positivism and Natural Law
1. Dworkin, Is Law a System of
Rules?
Critique of Positivism:
1) For the positivists, a judge has no discretion where there
is an existing rule governing the situation. This assumes
that all rules are clear and detailed enough without
further need for interpretation.
Domino, Gutierrez, Leao 21

2) Moreover, in hard cases where there is no applicable

rule, the sovereign can assign someone to exercise
discretion to decide a case. This contradicts the principle
of legal positivism that rules must exist first before a
judge can enforce it.
Policy- improvement in some economic, political, social feature
of the community
Principle-1) standard to be observed, not because it will
advance an economic political or social situation deemed
desirable, but because it is a requirement of justice or fairness
or some other dimension of morality 2) broader than rules 3)
can be used to decide hard cases when no rules apply
Rule vs. Principle
- Rules and principles differ in the character of the direction
they give.
-Principles do not look like rules.
-Principles carry the most weight in hard cases.
-Principles, unlike rules, still survive intact even when they do
not prevail.
Rule
Principle
Both sets of standards point to particular decisions about legal
obligations in particular situations.
Applicable in an all-or-nothing
Broader, flexible, has more
fashion (If it applies to a given
weight or importance
set of facts then we apply the
rule. If not, then we dont
apply the rule.)
Rules cannot conflict with each Both principles can be valid
other in the sense that when
and existing. The validity and
there are conflicting laws, one
existence of one does not
is invalid, the other valid. Both cancel out the validity and
cannot be valid.
existence of the other. Courts
weigh their relative
importance in a given case.
Discretion
-A relative concept: Discretion under which standards?
Discretion as to which authority?

-An officials discretion means not that he is free to decide

without recourse to standards of sense and fairness, but only
that his decision is not controlled by a standard
formulated by a particular authority
Dworkins Solution on the Pitfalls of Legal Positivism:
Treat principles as law. Rules are not enough. Principles will be
applicable in deciding cases. Also, legal obligation might be
imposed by principles apart from established rules. This is what
judges do when deciding a hard case. However, discretion is not
merely exercised by a judge during a hard case. Even just in
interpreting an existing rule, a judge already uses discretion. No
rule is detailed and specific enough to cover every human
situation, as the positivists propose.
Thus, an analysis of the concept of legal obligations must take
into account the important role of principles in reaching
particular decisions of law. Dworkin provides the transition from
legal positivism to legal realism.
Notes from Sir Sison:
Dworkin: Law is not a rule. Law is interpretation. (Application of
an interpreted rule to a factual situation) Moreover, law is not
simply an instrument but must contain a goal you want to
achieve.
Principle- sense of justice or fairness broader and more
important than rules so every situation is covered
Justice- giving everyone his right 9protect and recognize rights)
Judge- the decision-maker so must be competent
VI. Sociological Jurisprudence
a. In General
i. Abstract
Whereas legal positivism emphasized on the formal
aspect of law, legal realism is chiefly concerned with the
connection between law and human society. Legal realism
suggests that more than the actual law that a law student tries
to master in law school there is a law or a code that dictates
how legal problems and cases are solved in real life.
In a nutshell, legal realism is not merely concerned with
theory or the black-letter law. It is also and more importantly
concerned with the inner order of how these laws operate. For
Domino, Gutierrez, Leao 22

instance, although a lawyer may possess all the valid legal

arguments to win an ejectment case, the lawyer must also
know the realities that will lead to a favorable decision. An
example would be the acumen and personal biases of the
judge, the bribery that happens inside the courtrooms, and so
on. A lawyer may write all the winning legal arguments
imaginable, but without the requisite (requisite in the sense
that it is customary or habitually practiced by the people in that
specific group) bribe or token gift, his case will most likely fail.
Thus, legal realism posits that there is more to law than actual
text and theory. There is no such thing as a purely objective and
neutral court enforcing a law.
1. Lloyds Law and Society
Origins of Sociology
Hegel:
-development of human history as following a preordained
pattern
-idea of reason actualizes itself in human history and its highest
manifestation is the national state. Citizens are entirely
subordinated to the higher aims of the state, for only in this way
could human potentialities be fully exploited.
Weber:
-every concrete judicial decision involves the application of an
abstract legal proposition to a concrete situation.
Erlich:
-emphasized the role of social norms (which governed society in
all its aspects) in characterizing the law of a society.
-These social norms are known as the living law.
-Thus, the lawyer needs to know not merely the black-letter law,
but also the normative inner order of the living law and thus
indicates how the law operates.
-living law always in a process of change, so that positive law
constantly needs to adapt to it
Pound:
-With the rise of modern technology, one can explain the legal
process through social engineering.

-Drawing from Jhering, Pound saw the legal process as a form of

social control where all the competing and conflicting interests
in society are scrutinized, compared, and accepted or rejected.
-courts: supreme agent of the law in effecting social control
Holmes:
-Law is not a texture of subsisting rules but a mere technique
for predicting what decisions courts of law are likely to make in
particular cases.
-Lawyer must not only know set of theoretical rules said to be
binding on courts. He must also explore all the sociological
and psychological factors bearing upon decision-making to
show how courts are likely to decide a particular case.
Characteristics of Legal Realism:
-technique of predicting decision-making
-attempt an understanding of the functioning of the legal
system as an effective means of social control and achieving
societys aims for itself
b. Legal Realism
1. Karl Llewelyns The Bramble
Bush
Rules alone, mere words, are useless. Concrete instances are
necessary for these rules to mean anything all. Without these
instances, rules lose their meaning.
Characteristics of Law:
-Law exists to settle disputes both actual and potential.
(dispute-avoidance)
-What officials do about disputes is the law itself. Notice a
regularity of action by these officials to predict what they are
most likely to do in the future when settling disputes.
-It will be the actions of the judge and the available
means of influencing their action which make up the
law. Rules are important in the sense that they help you
predict what judges will do.
-The law is less concerned with making order than
maintaining it when something has gotten out of order.
For the average citizen, law does not make order. There is order
in a society because society is given and order is given in a
society. The average citizen only deals with the law when there
Domino, Gutierrez, Leao 23

is already a dispute which involves him. This dispute is a

deviation from that order. Hence, the law is needed to be
interpreted to maintain the order.
-In addition to knowing the rules to predict what the courts will
do, lawyer should also know these rules in relation to the
life of the community and the needs of his client.
-In other words, he should know the working situation of
his society apart from knowing the law.
Dispute- 1) a larger category than crimes 2) refers to all kinds of
disputes, whether civil or criminal
Procedural law- conditions the existence of substantive law at
all (If you dont follow the proper procedure, your case will fail
despite the merits of your case)
Note from Sir Sison:
-Legal Realism is a form of legal positivism. (Comment: doubtful
remark, because legal positivism if formalistic whereas legal
realism is concerned with working situations and factual
realities that are as important as the law itself.)
c. Law from the Policy Perspective (Policy
Science)
1. Reisman, A Theory of Law
from the Policy Perspective
A variety of distinct functions or operations are concealed in the
word decision.
Practice of law- practice of problem-solving
Characteristics of Law:
-does not simply consist of mental exercises about abstract
notions or rules
-entails making hard choices, whether for society or for a
particular client
-a challenge to action
Eight Values of Human Wants:
1. Power
2. Wealth
3. Enlightenment
4. Skill

5.
6.
7.
8.

Well-being
Affection
Respect (the most important of all according to Sir Sison)
Rectitude

Seven Component Decision Functions: (IPPIATA)

1. Intelligence- gathering of information relevant to making
social choices
2. Promotion- agitation to have a particular preferred policy
turned into community law
3. Prescription- legislation or the making of community
policy as law
4. Invocation- provisional characterization of some
behabior as deviating from prescription
5. Application- the specification of law to a particular set of
events and the determination of a sanction
6. Termination- the ending of existing prescriptions or laws
and the design of appropriate means of compensating
those who had made good faith value investments in the
expectation that they would continue
7. Appraisal- a consideration of the aggregate effectiveness
of the entire decision process in terms of whatsoever
community policies are to be realized and
recommendations for structural or personal change
Notes from Sir Sison:
-Formal law- a myth (Drawing from Reismans Myth System
and Operational Code in Folded Lies)
-Informal rules- 1) decision combined with effective control
(effective control: acts done by public officials to enforce the
law) 2) operational code
-Three aspects of law:
1) Formal law
2) Operational code
3) Enforcement
-Law must be obeyed.
-In a society where there are competing interests, the
overarching value is human dignity.
Domino, Gutierrez, Leao 24

-Institutions:
1) Government
2) Non-governmental organizations
3) Peoples organizations

Domino, Gutierrez, Leao 25