THE NATURE OF LAW

BULOSAN, GEL CAMILLE

CALMA, ISMAIL
ESCORPISO, CHARMAINE
RAMIREZ, JAY
SALVADOR, ANA MARIA
YU, BEA CHERYL

PHILOSOPHY OF LAW
I-C-1

ATTY. JACK ANDREW MIRANDA

CONCEPTUAL ANALYSIS OF LAW
INTRODUCTION

The Conceptual Analysis of the Law also known as the “Conceptual Jurisprudence” is the
methodology used on ascertaining the discourse of the law and understanding the rule of law. It
provides for the apprehension of the nature of the law in lieu with its use in the legal practice.
Basically, the ‘conceptual jurisprudence’ is concerned with the explanation of the law by putting
it into practice and exploring its features including therein the moral of the law with the end goal
that the law is used to provide justice and equity.

The understanding of the law comes from the understanding as well of other social sciences.
Conceptual jurisprudence provides a system of knowing the core legal concepts including as well
the concepts, however, these legal concepts are studied along with other concepts to see the
logical relationship between them and their effect to morality, authority, rights and obligations
of every person. To comprehend further, a definition of ‘concept’ should be tackled; thus,
concept as defined is an idea, a plan or an intention, it is a meaning or a sense of words. A concept
represents a category which mediates between the mind and the reality. Therefore, a conceptual
analysis of the law is further defined as the meaning of studying the law – its core principles, use,
effects and methodology. There are stages in the conceptual analysis of law which are the: (a)
identification of the law – its nature and use, (b) the determination of necessary features of law
– the methods of use, its source and effect.

The purpose of conceptual analysis of law is to provide philosophically rigorous explanation of

various concepts that figure and discuss about law. The practices characterized as “legal” or
involving “law” are of great moral and prudential significance; persons are incarcerated, fined,
required to pay compensation for injuries caused by legally culpable behavior, and even executed
for violating the law. It is a matter of clear practical importance that we ensure our practices
satisfy rigorous norms of political morality, and we cannot understand what norms apply without
an adequate understanding of the concept of law.

A theory in conceptual jurisprudence will explain the content of each concept and locate them
among a general conceptual framework that guides both our linguistic practices regarding the
relevant concept-words and our legal practices themselves. Conceptual jurisprudence is
concerned with explaining the core concepts of our legal practices, including the interrelations
among them. In particular, conceptual jurisprudence seeks to explain the concepts of law,
validity, and legal system and thereby seeks to clarify the logical relationships between these
concepts and other concepts potentially related to them, such as the concepts of morality,
authority, legal and social obligation, etc.
THEORIES ABOUT THE LAW

A. Empirical Legal Theory

It is usually concerned with identifying or explaining certain features or properties of

existing legal systems; such theory is, at least, descriptive in character and focuses on
contingent properties (i.e. properties that something does, in fact, possess but might not
have possessed it) of the legal systems under study. An empirical legal theorist may be
concerned with identifying or explaining the content of legal norms that purport to govern
information privacy. Similarly, he might be concerned with explaining the function that
some set of legal practices in the Philippines which it purports to serve.

B. Normative Legal Theory

It is largely concerned with determining the properties that legal norms or institutions, as
a matter of political morality, ought to have or, otherwise put, must have to be morally
legitimate. A normative legal theorist, for example, might argue that law, as a matter of
substantive moral theory, should protect information privacy in a number of specified
ways. Normative legal theorists are typically concerned with issues of moral legitimacy—
what restrictions on citizen behavior may, as a matter of political morality, justifiably be
enforced by the police power of the state. The Normal legal Theory touches more of the
morality of the law than its legality. It sees whether such law or legal concept would depict
justice and sees on the political morality of the concept.

VIEWS OF CONCEPTUAL ANALYSIS

A. Traditional View

This view looks for the definitions of the legal concepts and the necessary and sufficient
conditions for them to apply. Necessary conditions are those which have to be present
for the law to apply while the sufficient conditions are those which are enough for the
legal concepts to apply. It singles out a set of a priori analytic truths about a concept in
order to reveal the n. and s. conditions of its proper application.

B. Pragmatist View

In this view, it provides that conceptual analysis of the law uncovers the most important
features of a legal concept that are the core of the understanding and appreciation of the
law. It provides for a more traditional picture of the law which is commonly used during
judicial decision-making. This view touches on the nature of the action – its virtue, effect
and cause; more so, it correlates to the morality of the action and consequence. This view
balances the strict application of the traditional view of understanding the legal concept.
The legal concept is viewed along with its practical application in the society;
consequently, punishments are determined as to the weight of the cause of action.
AIMS OF CONCEPTUAL ANALYSIS

a. to provide a theory which yields a better understanding of the concept

b. to maintain a structure within which meaningful discussion can occur
c. to set the boundaries of the analyzed concept, thus making an investigation into its
relations with other (neighboring) concepts possible
d. to learn something interesting, important, or essential about the nature of the thing the
concept denotes

HOW CONCEPTUAL ANALYSIS IS DONE

1. philosophers’ intuitions about clear cases of the analyzed concept

2. identification of the clear cases
3. further intuitions (triggered by clear cases) as evidence about the concept’s necessary or
salient features
4. identification of the necessary or salient features

OBJECT OF CONCEPTUAL ANALYSIS

A. Modest conceptual analysis

 draws conclusions about the content of the analyzed concept and about how the
concept relates to the folk conception of it

B. Immodest conceptual analysis

 draws conclusions about what the world which the concept strives to describe
(the concept’s referent) is like

RULE OF LAW
The Rule of Law is a principle of governance in which all persons, institution and entities, public
and, private including the State itself are accountable to laws that are publicly promulgated,
equally enforced and independently adjudicated, and which are consistent with international
human rights norms and standards. It requires, as well, measures to ensure adherence to
principles of supremacy of law, equality before the law, accountability to the law, fairness in the
application of the law, separation of powers, participation in decision-making, legal certainty,
avoidance of arbitrariness and procedural and legal transparency.

Frameworks of the Rule of Law

 1. Constitution or its equivalent, as the highest law of the land
2. A clear and consistent legal framework, and implementation
3. Strong institutions of justice, governance, security, and human rights that are well
structured, financed, trained, and equipped.
4. Transitional justice processes and mechanism
5. A public and civil society that contributes to strengthening the rule of law and holding
public officials and institutions accountable. ( doj.gov.ph)

The relevance of the Rule of Law is demonstrated by application of the following principles in
practice.

 The separation of powers between the legislature, the executive and the judiciary
 The law is made by representatives of the people in an open and transparent way
 The law and its administrative is subject to and free criticism by the power, who may
assemble without fear.
 The law is applied equally and fairly, so that no one is above the law
 The law is capable of being known to everyone, so that everyone can comply
 No one is subject to any action by any government agency other than in accordance
with the law and the model litigant rules, no one is subject to any torture
 The judicial system is independent, impartial, open and transparent and provides a fair
and prompt trial
 All people are presumed to be innocent until proven otherwise and are entitled to
remain silent and are not required to incriminate themselves
 No one can be prosecuted, civilly or criminally, for any offense not known to the law
when committed
 No one is subject adversely to retrospective change of the law. (ruleoflaw.org.au)

THE FOUR UNIVERSAL PRINCIPLE

The World Justice projects definition of the rule of law is comprised of the following four
universal principles:

Accountability
- the government as well as private actors are accountable under the law

Just Law
- the laws are clear, publicized, stable and just; are applied evenly; protect fundamental
rights, including the security of persons and rights, including the security of persons and
property and certain core human rights

Open government
 - the processed by which the laws are enacted, administered, and enforced are
accessible, fair and efficient

Accessible and Impartial Dispute Resolution

- justice is delivered timely by competent, ethical, and independent representatives and
neutrals who are accessible, have adequate resources, and reflect the make-up
communities they serve.

The four universal principles constitute a working definition of the rule of law. They were
developed in accordance with the internationally accepted standards and norms, and were
tested and refined in consultation with a wide variety of experts worldwide.
(wordljusticeproject.org)

The importance of rule of law

The society mainly requires law for a smooth functioning and peaceful environment. Law is
drafted with the main aim to maintain justice and equality amongst citizens and avoid any
malpractices within jurisdiction.

If a society does not have a strong law system, surviving in such an atmosphere can be difficult.
For obvious reason because every individual will have their own school of thoughts contrasting
form the other one.

LAW AS RULES AND PROCESS

A. Law as Rules

A common misconception of law is it is confined as a set of rules and that when dispute arises;
all a judge does is find the right rule and apply it mechanically, even ruthlessly. This is how
formalist regard law. Some feel it is a simplified way to look at law as it fails to take into account
the totality and social context of the law.

Another criticism of the law as rules approach is its focus is the quick disposal of cases from the
court dockets. It seems like it only gives a superficial treatment of the problems and does not
ask the larger casualties why legal issues had arisen in the first place.

As William O. Douglas wrote: “The law is not a series of calculating machines where definitions
and answers come tumbling out when the right levers are pushed.”

B. Law as Process
 Law may also be regarded as a process, the rules being merely an aspect of the process.
In essence, a legal issue may be approached from many angles: historical, psychological,
economic or sociological. Societal institutions may be involved such as the family,
community, workplace, school or religion.

A legal scholar said that: Law is very like an iceberg; only one-tenth of its substance
appears above the social surface in the explicit form of documents, institutions, and
professions, while the nine-tenths of its substance that supports its visible fragment
leads to a subaquatic existence, living in the habits, attitudes, emotions and aspirations
of men.

CHARACTERISTICS OF LAW

COMMON CHARACTERISTICS OF LAW

A. OBEDIENCE/ RULE OF CONDUCT

The element of obedience is a common characteristic present in all types of law. The
Degree or freedom to which a subject may disobey as well as the extent or coverage of
the law is what differentiates the various types of law.

B. GENERALITY/ FOR COMMON OBSERVANCE AND BENEFIT

The principle of generality sees laws as “generally” rather than “particularly” framed.
Under this principle, the law is the law regardless of particular attendant circumstances.

C. PROMULGATION/ PROMULGATED BY HIGHER AUTHORITY

This ensures that laws may be “continually promulgated” even to the future. Aquianas
quotes Isidore that law is derived from legere (to read) because it is written

D. THE RULE OF LAW / JUST AND OBLIGATORY

This is an established principle which posits that whenever a legal issue presents itself. It
must be decided by applying the accepted principles of law. In so doing, the will and
personal ‘discretion’ of the judge is set aside, and he must apply he known principles of
law according to the will of the legislator.

CONCEPT OF PHILOSOPHY
PHILOSOPHY

- love of wisdom or the search for truth

- From the word Philos/Philia (love/friendship, affection, affinity for, attraction toward
AND Sophos/Sophia (sage, wise one/wisdom, knowledge, skill, intelligence)
 Socrates’ definition of Sophia – knowledge of the underlying reasons or causes
for things as they appear to use

- Philosophy seeks to discover the essence, nature and foundation of things

- It is philosophy’s task and mission to peel the multifarious layers concealing life’s true
aims

- Socrates – the father of western Philosophy

PHILOSOPHY OF LAW

- love of the wisdom of law

Philosophy from Fr. Ranhilio Aquino’s view:

 The knowledge of things by their ultimate causes or reasons
 Provides the person with a map that gives coherence to his activities and that
makes of human life a meaningful whole
 Uncovers the meaning of phenomena through the aid of hermeneutics

Uses of Philosophy:
 Gain deeper levels of understanding through continually questioning the things
we believe in
 Wisdom