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Philosophy of Law Notes

I.) Philosophy and Law:


What are the four central problems of law?
o What is the nature of law?
o What is the distinguishing criterion of law?
o Does an unjust law remain a valid law?
o What are the ends or ultimate goals of law?
Nature of law:
o Empirical propositions: based on sense experience.
The Conveyance of a fact and is subject to factual
verification
o Normative propositions: function as guides or norms
of human conduct. Conveyance of a command. There is
a value judgement
Example: Thou shall not kill, honesty is the best
policy
o Legal propositions are neither a part of science, nor can
they be validated by science. Rules of law are normative
in character
Distinguishing Criterion of Law: How do we distinguish rule of
law from rules that are not law?
o Answer: We use the notion of legal validity
Elements of Identification:
o Element of Coercion by sovereign authority
o Norm of validity by which rules belonging to system are
identified
Validity is a relational concept, the problem in every case is
whether or not the rule in question is valid in relation to a
particular system
o The question of validity cannot be solved in abstract,
but only in context of a particular legal system
Criteria of Identification: it is based on the Rules of
Recognition by Hart
o Example: (1) Judicial adoption: a secondary rule of
recognition; (2) Approval of a law by the president: a
rule of recognition
Unjust law as a valid law:
o Positivist view of law: affirms that rules of law remain
law, regardless of their moral invalidity
o Natural law theory: maintains that law must conform to
basic moral standards, and that a law which is unjust is
not a law
Perfecto Fernandez: believes that natural law doctrine is
based on fallacy, where a moral norm may actually be an
imperative/normative command, and so is not based on sense
experience/empirical proposition
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Philosophy of Law Notes

o Example: Honesty is the best policy: it is my judgement


that there are good reasons for being honest, and it is
my desire that you accept these reasons and be honest
Thus, it is language that gives preferences (like how one
person thinks honesty is the best policy) is a semblance of
concreteness and universality
Moral principles entail the following:
o Private and individual judgements as to what is
desirable
o The desire that others conform to judgements in their
conduct (like the honesty example)
Thingification: the moral judgements of private individuals
are made to appear as essential attributes of the universe
Philosophy vindicates the practical grounds for rejecting
conformity with moral standards as a requirement for legal
validity
Criteria of validity or rules on recognition are empirical
Moral standards as shown by philosophical analysis are
essentially judgements of individuals, hence subjective and
variable
When we call a law unjust and are criticizing a rule in the legal
system, we do so on the basis of a rule in a different system, a
system of morality

Ends of Law:
o For the present and foreseeable future, law has the
modest but crucial task for providing the social
conditions of security and liberty essential to human
achievement

What is the definition of law?


o Law: An ordinance or reason for the common good
and made by him or her who has care and
legitimate authority of the community and
promulgated
o Ordinance: binding character (not simply an advice)
o Root words of law in the Philippine context:
Kasuguan
Layi law (Visayas and Mindanao)
Root: ley
Sugo: to command and follow
o Reason: correct thinking; a matter of the intellect (the
mind is being used)
o Promulgated: well-known
Law is ideological: it forms part of our world (must address the
nature of man)
Law is also a measure of social order

Philosophy of Law Notes

What is the human person?


o A human person is an embodied spirit and it is also a
being that relates to another person
o Death: separation of the spiritual to the body (material)
Particular judgement judged by God
o Material: *consider this along with the fallen nature of
man
o Spiritual: not bound by time and space
Intellect: appreciates the wherefore (knowledge;
we know)
Will: Follow or not follow (a matter of choice)
o Essence of the human person: both good and evil

What
o
o
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o
o
o
o
o
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constitutes a human person?


Life-giving principle: the spirit or the soul
The body (material): also known as corpus
Soul: one way of looking at is looking at plants; they
have a soul (also cats, dogs, and cows)
Although, souls of cats and dogs do not go to
heaven, because their souls are co-terminus
Life giving principles of a human:
Intellect: the ability to know (appreciation of
information)
Will: the ability to make choices and decisions
When we choose we take responsibility
The two main aspects are freedom and
responsibility
o Freedom must be tempered with
goodness: for the common good and
hidden good (patience is a virtue)
We need the body to execute our wills
The soul interacts with the world through the body
The body has limitations: ex.) It can get hungry, thirsty,
smelly, etc.
The body is motivated by pleasure and passions
The conscience: not a source of morality
Sources of morality: natural law, beatitudes, The Ten
Commandments

How are the intellect and the will affected due to the
limitations of the human (material)?
o Since it is said that the human body is subject to such
limitations, it can weaken the intellect and the will due
to the desires and the types of passion that the body
needs

Philosophy of Law Notes


o This weakness of the intellect and the will, would
eventually give in to the commands of the body; this
therefore results to the weakening of the concupiscence
Due to pleasure and passion, the intellect and the
will is clouded with cupis (flesh) concupiscence
(weakening of the will)
o Man is essentially good; the soul is inclined to the good
There is a natural inclination towards the good,
but the conscience is distorted)
o Love for pleasure has the tendency to take over ones
conscience

What is the source of our human rights?


o The source of our human rights is the human beings
spiritual nature
Article 2, Section 11 of the 1987 Constitution

Is man absolutely and totally good?


o No. To define man as totally good is not right, because
we are not God
o Although, God is so good, that he became man (JudeoChristian perspective)

Hart: what are the essentials of law?


It can start with a wish, and you would want to make it come
true through an imperative
o Example: I wish that there would be an incentive for
women who will run for a Congressional seat
Law is graver transforms as a command
Authority: entitlement to require obedience
o It needs to be addressed; law is enforced face-to-face
(verbally) (ex.) King commanding orders)
Question: what about people that were not informed face-toface?
o Require the relationship to the superior (law maker) and
inferior
o Requires habitual obedience
Notion of disobedience orders backed up by threats (in
order to enforce obedience)
Habits are acquired and developed (habits are convergence of
behaviour) what about acceptance?
o In time, it has developed into a system (as it is today)
Republican type of government wish = sovereignty resides
in the people
Deviation of a standard standard is considered as good
o Grounded on a sanction and is subject to criticism
Orders commands directives

Philosophy of Law Notes

Rules are required to act in certain ways


Power-conferring rules subordination / due delegation;
completeness and sufficient standard test (Constitutional Law)

Seagle Reading: Coke What if the Crown will interfere with


the courts?
o Wishing for the rule of law

St. Thomas Aquinas: What is justice all about?


o Act of justice in relation to its proper matter and object
is indicated in the words: rendering to each one his
right
o Isidore: a man is said to be just because he respects
the right of others
The Definition of Justice:
o Justice is a habit whereby a man renders to each
one his due by a constant and perpetual will
o It is a habit whereby a man is said to be capable of
doing just actions in accordance with his choice

Is habit related to law? No.


Rule vs. Habits:
o Rule: internalized
o Habits: acquired and developed (shall not be punished;
convergence of behaviour)

Altman: Rule of Law


o Definition of Rule of Law: to put order, uniformity,
remove legal relativism (personal autonomy)
There will always be a sense of unity
o There must be a healthy regard as to where people are
coming from (context)
o There will always be contemporary rules rule of law is
a source to go back
o Government must operate under the law
o You also need to establish fair warning
o There has to be some order laws should always
originate from the HR
o All persons must be given due process
Plato: each man must be given his due
o Aquinas: habitual notion of giving justice virtue of
justice
o Justice the foundation of love and charity of family
Considered as the first virtue
Must distinguish privilege right and legitimate
right

Philosophy of Law Notes


o When justice is present, there is harmony in society
(peace)
o Peace justice (peace brings about tranquillity and
stability of relations)
o There are expectations because there is a sense of
entitlement
You have to know what is due
o Can injustice be intolerable? Yes. When there is a
need to avoid a greater injustice
Dennis Lloyd: Is Law Necessary?
Main thesis: The answer to the question lies on your
perception of mans nature. Whether or not man is in nature
good or evil would give us an answer to the question of
necessity of law
I.)

The Nature of Man


A.)
Man is by nature evil:
Such nature should be curbed, if not, it will lead to total
destruction of man
Law then is the indispensable restraint upon the forces
of evil
Anarchy or absence of law is the supreme horror to be
warded of
B.)
Man is by nature good:
People who believe in this nature of man seek to find the
sources of the ills of mans present condition
The defect in mans social environment is the true cause
of the evils, which afflict him
The legal system is the source of mans tribulations

II.)

The Law and the Forces of Evil


A.)Whether you see man as by nature evil or good,
he still needs laws
Mans nature is evil thus no social progress could be
attained without the restraints of penal laws
Man is good but due to sin, corruption or some internal
weakness, mans original and true nature had become
distorted and thus required for its control the rigors of a
primitive system of laws
B.)Idyllic Primitive Scene
This refers to the golden ages where everything was in
order, no external system of legal rules, and life was
much simpler
This served as a pattern for a movement toward a
return to nature
o Going back to mans primitive, unspoiled nature
where there is a happier society in which
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Philosophy of Law Notes


uncorrupted natural impulse will replace coercive
regimes
III.)

Mans nature is evil


China (Legists): argued that mans nature was initially
evil, and that the good ways in which men often acted
were due to the influence of the social environment,
particularly the teaching of rituals and the restraints of
penal laws
India (shastra): men are by nature passionate and
covetous, and that if let to themselves, the world would
resemble a devils workshop, where the logic of the
fish (means: big ones would eat the little ones) would
reign
Western Europe
o Bodin: original state of man was that of disorder,
force, violence
o Hobbes: the life of primitive man was a state of
perpetual warfare, where individual existence was
bruttish, nasty and short
o Hume: without law, government and coercion,
human society could not exist and so law is a
natural necessity of man
o Machiavelli: men are bad and will not observe
faith towards you (traitors), you should not trust
them
The Golden Age
o Ovid: man do not need laws because it is written
in his nature, yet everyone is safe because
conscience is their guard
o Seneca: in the primitive innocence or state, men
lived together in peace and happiness, having all
things in common, there is no private property; no
slavery, no coercive agreement, no corruption,
everyone is free and equal

This primitive innocence was a result of ignorance rather


than virtue
This ignorance is the source of social evils later on. Such
social evils necessitated an introduction of regime of law
Corruption = a product of avarice, fall of man
Judeo-Christian
o Paradise is the equivalent of the primitive
innocence
o The necessity of human law and coercive state,
private property and slavery was derived from
mans sinful nature, which resulted from the Fall
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Philosophy of Law Notes


o Law was a natural necessity after the Fall to
mitigate the effects of sin
o Consequences of the Fall:
Family: represented the coercive domination
of the male against the freedom and
equality of the primitive paradise
Slavery: sins is a fit subject of enslavement
IV.)

The Theory of Law


o Agustine
o State law and coercion are not themselves sinful,
but are part of the divine order as a means of
restraining human vices due to sin
o The hope of mankind is not in the sphere of social
reform, but rather by the attainment of a
commonwealth of Gods elect, a mystical society,
which would replace the existing regime
dominated by mans sinful nature
o Law is a natural necessity to curb mans sinful
nature

V.)

By 13th Century
o There was a change in emphasis due to Aristotelian
influences
o Mans nature might be corrupt and sinful, but he still
possessed a natural virtue which is capable of
development (Aristotles natural development of the
state from mans social impulses)

VI.)

Aquinas
o States is not a necessary evil, but a natural foundation
in the development of human welfare
o Law is a beneficent force, not only in restraining evil but
also for setting him upon the path of social harmony and
welfare
o Law then is not a negative force, but a positive
instrument for realizing those goals towards which
mans good or social impulses tend to direct him

VII.)

Man is by nature good (anarchist viewpoint)


o The concept of law is based on a wistful primitivism,
nostalgia of the primeval past
o Plato
o Pins his faith in a system of education which will
not only produce adequate rules, but will also
serve to condition the rest of the population to the
appropriate obedience

Philosophy of Law Notes


o Adam Smith
o Laissez faire; free play of economic forces which
could be assumed to work towards ultimate
harmony
o Coercive law may be used to protect private
property (an indispensable feature of free market)
o Godwin
o Evils of society arose not from mans corrupt or
sinful nature, but from effects of oppressive
human institutions
o Man is capable of unlimited progress, only
coercive institutions and ignorance stand in the
way
o Voluntary cooperation and education would enable
all law to be abolished
o Bakunin and Kropotkin
o State, law, coercion and private property were the
enemies of human happiness and welfare
o Tolstoy
o Man is universally good, and there is no need for
law
o Maude
o Remove the law and induce men to believe that
no fixed code or judgement should exist; and the
only people who will be able to get on at all
decently will those who follow the traditional way
of life
o Marx
o Law is nothing but a coercive system devised to
maintain the privileges of the property-owning
class
o By the revolution of classless society would be
brought into being, the law and state would either
way as being no longer needed to support
oppressive regimes
o Looks forward when social harmony will be
attuned to the natural goodness of man,
unimpeded by such environmental snares as the
institution of private property
VIII.) Innate Goodness and the price of Civilization
o Man at the primitive level is innately good and that it is
the social and political organization of civilized life,
which has introduced violence, and disorder which led to
systems of legal coercion
o Elliot Smith

Philosophy of Law Notes


o Most of the friction and discord of our lives are
obviously the result of such exasperations and
conflicts as civilization creates
o The artificial aim, which is the object of envy and
malice, is the source of conflict
o Herbert Read
o The anarchist conceives society as a balance or
harmony of groups; the only difficulty is their
harmonious interrelation
o Universal decentralization of authority and
simplification of life is essential
o Anarchism means a society without arkhos (ruler);
it does not mean a society without laws, and it
does not mean a society without order
o In the simplest form of society, some system of
rules is necessary (ex.) rules on family
relationship, food-gathering, mating, etc.)
o Such society without rules is not just a society
without order but the very negation of society
itself

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