LEGAL PHILO | Macky . t(-.

-t)

DEFINITION LAW ETC. MORALITY/JUSTICE/STATE

TELEOLOGICAL PERSPECTIVE - The law is ordained for the fulfillment of
the precepts of the natural law namely,
righteousness, justice fairness and
equality
- Achievement or realization of these
precepts in the legal order is the TELOS of
the law.
- Telos - Greek for "end", "purpose", or
"goal“
- NATURAL LAW BASIS: the universal
discipline of virtue impressed in the heart
and mind of man to guide him in the
exercise of his rights, in the performance
of his obligations, in the observance of
rules, and in the preservation of order and
unity.
- PRECEPTS: RIGHTEOUSNESS, JUSTICE,
EQUITY, AND FAIRNESS
- not considered divisions of the law but
its very perfection.
- good legal order can be deduced from
natural law
- universally valid for all people

A. Greek Concept -Socrates, Plato, and Aristotle believed
that the main condition of life in society is
GOOD FAITH which means human beings
have a basic concept of JUSTICE enabling
them to distinguish between right and
wrong.
- 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. (Civil Code of the
Philippines)
Socrates’ Absolute Justice
Two Principal Considerations:
1. No person is intentionally bad or evil
because of the knowledge of justice.
2. Only a temperate person knows himself
or herself and thus, able to bring his or
her emotions under control.
Plato’s Rational and Universal Justice
- Exist in the mind, even though not seen
in fact or performed
Aristotle’s Practical Justice
- Justice must be understood in the sense
of what is FAIR and EQUAL.

B. Roman Concept - Roman jurisprudence subjected it to
technical analysis and endorsed it with
their authority and practical genius, unlike
the Greek’s concept of nature of law
which was only a philosophical
speculation.
- Conception of justice began to have a
definite legal content.
- Gaius advocated for a continuous effort
of removing harmful and useless rules of
law.
1. Reexamination by the lawmaking
bodies every once in a while.
2. Any abnormality in the legal order
could be adjusted to comply with the end
and purpose of the law.

C. Aquinian Concept - Like Socrates, St. Thomas Aquinas
believed in the rational capacity of man to
know the absolute good.
- St. Thomas Aquinas thought of the law Two concepts of Justice:
as an institution ordained by God. The 1. Justice as an ethical virtue
Greco-Roman notion of impersonal nature 2. Justice as juristic norm
as the ultimate source of laws was
substituted by the power of God who
governs all things by the rational
arrangement and distribution of His divine
providence.
- Public welfare or common happiness is
the first concern
- Task to maintain public welfare belongs
to either the people in general or the
person who is delegated by the sovereign

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 LEGAL PHILO | Macky . t(-.-t)

DEFINITION LAW ETC

D. Kantian Conept Transcendental Philosophy (Kant)
-Learning or understanding determined by
the mind itself
- A priori knowledge: not gained through
experience
- Ideas formed in mind independent of
feelings and inclinations
Critique of Pure Reason (Hume)
- Based on senses/experience
- Theory based on skeptic philosophical
tradition and empiricism
E. Utility Supplement Utilitarianism
-Act in a way with best consequence
- Happiness as the measure of goodness
or badness of acts and their consequences
based on the hedonistic calculus
(pleasure)
F. Hegelian Concept - The usual application of the Hegelian
concept is individualism and collectivism,
both are reconciled by means of the
principle of identity or the lawness, the
resulting synthesis becomes the
embodiment of the reconciliation of the
opposing views or ideas into a concrete
concept.
- The Hegelian concept held that all
concepts are actualized by this evolutive
process, that is to say an idea (thesis)
may evoke an opposite idea (antithesis)
and out of their reconciliation or
identification emerges a third possibility –
a new idea (synthesis). This synthesis
shall be the prevailing idea until an
opposite idea appears and reconciliation
of the struggle of ideas is again
necessary.
Principle of Rightness: Ethical ought vs. Legal ought
- The precepts of natural law are not - Kant employed the “ethical ought”
prompted by sense-experience but by because this standard involves moral
ethical attitude to do what is right and motivation
avoid what is wrong
- Righteous person: one who can attain
freedom from the arbitrary power of his or
her physical senses
- LAW, to be an effective means of social
control, must be based on the a priori
precepts of natural law.
Nature of law based on: - The worth of a conduct is based on its
1. Pleasures ought not to be sought consequences to individual interest
2. Pains ought to be avoided
“What pleasures ought not to be sought
and what pains ought to be avoided
- Law is a system of social control
directing and governing persons to the
maximum happiness and to the minimum
of misery
- “Purpose” is the prime mover of law
- Law is shaped by the purpose of society
Neo-Hegelian Twist Modern Teleological Analysis
- The Neo-Hegelians regard the law as the 1. Juristic approach- knowledge of right
power of dictatorship of the Leader, where and wrong or good and evil that is relative
there is no separation of powers of to the changing conditions of time, place
government. In effect, this means that the and people.
law and the will of the Leader are one and 2. Ethical relativity- all law, good, right,
the same. are relative to other transitory values and
Essential Attributes of the law conditions.
1. Greco Roman Aquinian Viewpoint – 3. Interest of the State- . It can only be
Right reason in relation to justice and agreeable to the members of the
equity is the essential attribute of the law community as a whole when it is not
2. Utilitarian Point of Observation – destructive of the state since the latter is
Greatest happiness of the greatest the recognized protector of the liberties
number in the community and of the people.
3. Modern teleological analysis- the free
willing thinking individual living in a
changing society
- No rigid/single formula for application of
law; constant change

FUNCTIONAL PERSPECTIVE - Fundamental focus: analysis of the
characteristic action of the law in the
solution of conflicting wants in terms of
the interests of society
- The thrust of this juristic school is to
inquire into the role of the social interests
Social engineering
- Legal order to decide which among
conflicting interests should be prioritized
- Law: social phenomenom
- Criticism of Abstract Values
- Criticism of Legal Positivism
Goal
- Serve the jural postulates and express
the social interests and incorporate these

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 LEGAL PHILO | Macky . t(-.-t)
in the adjustment and reduction of in the formulation of law
conflicting claims, demands and
expectations of the people.
- Functional jurisprudence is a strong
reaction the idealism of both the historical
and teleological perspectives of the
nature of the law.

DEFINITION LAW ETC

LEGAL FORMALISM - Formalists believe that a judge identifies
the relevant legal principles, applies them
to the facts of a case, and logically
deduces a rule that will govern the
outcome of the dispute.
- The most obvious characteristic of legal
formalism is the purported separation of
legal reasoning (or "application" of norms
to facts) from normative or policy
considerations. Legal formalists argue that
judges and other public officials should be
constrained in their interpretation of legal
texts, suggesting that investing the
judiciary with the power to say what the
law should be, rather than confining them
to expositing what the law does say,
violates the separation of powers.
-Assumes that the law is a system of rules
that can determine the outcome of any
case without reference to external norms
-It is characteristic of the positivist
perspective of the nature of the law. It is
criticized as a simplification of legal
reasoning. In this rigid model, the decisive
legal rule serves as the major premise,
the material facts constitute the minor
premise, and the decision is reached
strictly by deductive reasoning. In other
words, decisions are said to inevitably
follow the basis of stare decisis.
“Conceptualism”
- treats law like math or science

LEGAL REALISM The term “Modern Legal Realism” à
describes the experiential outlook of this
perspective, Not based on metaphysical
speculations or morality
- “Pragmatic Jurisprudence”
- In short: Legal realism seeks to
emancipate the law from its shackles to
formal and mechanical modes of
deductive thinking
- Legal realists sought to freshen it up to
keep abreast of the times by applying to it
continuously the pragmatic test of social
consequences
- all law is made by human beings and,
thus, is subject to human frailties and
imperfections; it should not be rigidly
adhered to when it does not work,
practically
- Therefore: the law should be anchored
on human experiences – past and present
à For law is made by men for men, laws
should serve men and not the other way
around
- Basis of law: The law derives its life from
human experiences and inexperiences;
the law must be pliant to accommodate
such sources
Social
Legal Realism vs. Natural Law
- Natural law was “the law above the law.”
It is a theory founded on the philosophical
and legal belief that all humans are
governed by basic innate laws, or laws of
nature.
- Legal Realism is founded on the belief
that man makes up his own law. Instead
of consulting universal

A. Social Legal Realism: John Dewey
- Based on John Dewey’s philosophy of
education: “learning by doing”
(experiential learning)
- Dewey: knowledge is part of life-
experience involving the “intercourse of a
living being with his physical and social
environment”
- Learning becomes effective when
coordinated with experience
- Until law is set into operation in the field
modifying and/or maintaining human
activities as going concerns, there can be
no law in real sense
- Law becomes an instrument of social
control
- The use of sanctions for the attainment
of social ends
APPLICATION
- It is not something that happens after a
rule or statute is laid down but is a
Legal Realism vs. Natural Law
- Natural law was “the law above the law.”
It is a theory founded on the philosophical
and legal belief that all humans are
governed by basic innate laws, or laws of
nature.
- Legal Realism is founded on the belief
that man makes up his own law. Instead of
consulting universal principles, man
consults his own needs, wants, and
agendas, or the changing norms of the
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DEFINITION
LEGAL REALISM - the realism in law is characterized by a
healthy scepticism for the traditional
perspectives of law; about the role of
rules, facts, and judicial opinions in the
legal ordering of society.
- Re-examination of the problem of the
nature of the law in terms of the relation
of legal rules and legal facts to the
realities of the judicial process.
CRITICAL LEGAL REALISM - Seeks to fundamentally alter lawà
exposing it as not a rational system of
accumulated wisdom but an ideology that
supports and makes possible an unjust
political system
- A revolutionary movement that
challenges and seeks to overturn
accepted norms and standards in legal
theory and practice àexposes what it
necessary part of them
- “necessary part” - that in a given case
we can judge what the law is as a matter
of fact only by telling how it operates and
what its effects are in and upon human
activities that are going on
LAW
- Criticized that natural law must be
accepted by all because it is self-evident;
The concept of situational natural law is
also rejected
- Law has been defined as the a system of
reason, deduction from principles of
ethics, or admitted axioms etc.
- is not an ideal concept but something
that actually exists. It is not that which is
in accordance with nature, or religion, or
morality, it is not that which ought to be
but hat which is
THE LAW AS THE PRODUCT OF
JUDICIAL PROCESS
- Realist school of jurisprudence has
placed the emphasis on the judicial
process, it has nonetheless considered the
administration of justice as the end of the
law
- In the judicial legal realism, the process
that controLs the activities of the
individuals or groups of individuals in a
politically organized society is the law
uttered by the courts
- The law exists to support the interests of
the party or class that forms it
- It is merely a collection of beliefs and
prejudices that legitimize the injustices of
society
- The wealthy and the powerful use the
law as a means for oppression in order to
maintain their place in the social hierarchy
- A tool used by the establishment to
LEGAL PHILO | Macky . t(-.-t)
society in which he lives.
- “The end or purpose of the law is the
deliberate achievement of social
contentment”
ETC
CONSTRUCTIVE SKEPTICS
-Skepticism about rules, facts and judicial
opinions
MATERIAL FACTS
- Material facts do not refer to all past acts
and events; Presented facts may be
considered irrelevant
ROLE OF EXPERIENCE AND SOCIAL
ADVANTAGE
- Law is not the exclusive product of logic.
ROLE OF METALEGAL STIMULI
- Formalist Concept: decisions are based
on the doctrine of stare decisis
- Realist Concept: decisions should be
based on material facts of a case and not
just on jurisprudence
- Metalegal Factors: set by witness,
lawyers, judges’ legal attitudes and
prejudices, by judges’ predilections and
preconceptions, historical events, current
social values and postulates
DECONSTRUCTION in Critical Legal
Realism
- It is the technique of:
1. Tight analysis of the traditions of the
dominant liberal paradigm
2. Reformation of the traditions of the
dominant liberal paradigm
TRANSFORMATION OF THE POST-
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SCANDINAVIAN LEGAL REALISM
sees as its flaws
- It rejects the view that law is a
determinate body of doctrine or that
precedents and statutes determine the
outcome of legal disputes.
- Scandinavian legal realism, like
American realism, regards law as an
empirical fact.
- However, American realists treated law
as a kind of behavior of a certain social
group, consisting of people professionally
preoccupied with resolving conflicts;
Scandinavian realists, on the other hand,
searched for the “essence” of legal
phenomena in the psychological reactions
of individuals. Hence such concepts as
“law” or “obligation” are regarded by
Scandinavian realism as psychological
facts.
LEGAL PHILO | Macky . t(-.-t)
maintain its power and domination over LIBERAL ORDER
an unequal status quo. 1. Decentralization of government
2. Reorganization of market economy
3. Reconstruction of system of rights
- Thus, for phychological legal realism, the
law and its component system of jural
relations are real because they are social
facts. The evaluation is no longer left to
axiological criteria but to the feeling of
what is good for the society. However, the
judgment of value involved is problematic.
- legislation, execution of statutes, and
adjudication of cases are essential to the
social order, and to assure the legal
ordering of society the law and its
component jural relations must be based
on the “felling for justice prevalent and
current within society.” This is different
from the concept of justice propounded by
the natural law philosophers which
indicates or points to “the one and only
solution.”

DEFINITION LAW ETC

POLICY SCIENCE
ECONOMIC ANALYSIS OF LAW
Four salient features:
1. Reaction to apathy towards social
values
2. Movement away from ontological
jurisprudence
3. Emphasis on human rights
4. Movement for the universal recognition
of social values
- Applies the tools of microeconomic
theory to the analysis of legal rules and
institutions
- Law is adequate if it does not take into Basic social values: power, knowledge,
account the goal values and policy respect, income, safety, liberty, equality
guidelines to which the society is
committed.
- Law can truly be an instrument of global,
regional and national control when it is
committed to the complete achievement
of the social values that constitute the
professed ends of democratic societies
-Law is an adequate
- Presupposes a concept of law in that the
law is uncontrovertially known to all
actors

Common law legal systems vs. Civil law legal systems

• Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes. In civil
law jurisdictions (the legal tradition that prevails in, or is combined with common law in, Europe and most non-Islamic, non-common
law countries), judicial precedent is given less weight (which means that a judge deciding a given case has more freedom to interpret
the text of a statute independently, and less predictably), and scholarly literature is given more. For example, the Napoleonic Code
expressly forbade French judges from pronouncing general principles of law.

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• Common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic Code.

• The common law is being replaced by statute or codified rule in the United States, in which case, the statute sets the general
principles, but the common law process determines the scope and application of the statute.

• Judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than
the bright-line rules usually embodied in statutes.

• Common law courts tend to use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law
systems, inquisitorial systems proceedings, where an examining magistrate serves two roles by developing the evidence and
arguments for one and the other side during the investigation phase.

LEGAL POSITIVISM
Law is a complete set of norms and rules of action which excludes from its specific concerns value creation, clarification and realization.

BASIC SOCIAL VALUES: Policy Science

 Social Valu “ Power” - A political mechanism for the good of the society which reflects the will and choice of the people as a whole and not just that of the leader.

• Social Value “KNOWLEDGE” - Means the widespread understanding among peoples of different cultures and backgrounds.

 THE SOCIAL VALUE “RESPECT” - Regard for life and esteem for the dignity and worth of human personality.

• THE SOCIAL VALUE “INCOME” - It means the economic betterment of the people, adequate provision for a high employment level, freedom to unionize and bargain
collectively, efficient method of production and wise consumption of goods and services, and raising of the plane of living

• THE SOCIAL VALUE “SAFETY” - Represents and signifies public protection, pubic health, social security and peace and order.

• THE SOCIAL VALUE “LIBERTY” - In the physical context, liberty means security from restraints or freedom of the body from external physical compulsion
Due process of Law

THE SOCIAL VALUE “EQUALITY”

LEGAL PHILOSOPHY: FINAL EXAMINATIONS

Sections: 1-C, 1-G, 1-I & 1-K
Atty. Rochelle Dakanay-Galano
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 LEGAL PHILO | Macky . t(-.-t)
2009

1. Explain what is meant by the universality of human rights as based on Natural Law (5pts.) and on Policy
Science Perspective (5pts.)?

2. A sells his 1997 Nissan Sentra to B, a compadre and leaves it to B to determine the price. If B refuses to fix
a price and simply takes the car, is he obliged to pay the price? Explain. (5pts.)

3. How would you compare the Civil Law system (5pts.) with that of the Common Law system (5pts.)?

4. What is the Policy Science Perspective and how does it define law? (5pts.) Explain its critique of Legal
Positivism. (5pts.) What are the social values espoused under this perspective? (5pts.)

5. Explain how law relates to morality in Legal Positivism (5pts.) and in Natural Law. (5pts.)

6. Define law according to Legal Formalism (5pts.) and Legal Realism. (5pts.)

7. Why should the law be liberalizing according to Critical Legal Realism? (5pts.)

8. Explain the following statements:

a. Functional perspective is known as sociological jurisprudence. (5pts.)
b. The binding force of law is psychological. (5pts.)
c. Law as a means of directing man to the maximum of happiness and minimum of misery. (5pts.)
d. Law as an institution ordained by God. (5pts.)
e. Law is a product of the judicial process. (5pts.)
f. Equity follows law. (5pts.)

9. Demetrio knew that a piece of land bordering the beach belonged to Ernesto. However, since Ernesto was in
Europe, no one was taking care of the land. Demetrio built nipa sheds on Ernesto’s land and rented out
these sheds to people on the beach. When Ernesto returned, he demanded return of the land. Demetrio
agreed but only after he has removed the nipa sheds. Ernesto refused on the ground that the nipa sheds
already belonged to him by right of accession. Who is correct? Decide the case using the functional
perspective. (5pts.)