Chapter 2 Legal Issues and Theories
Chapter 2 Legal Issues and Theories
I. FOUR ELEMENTS
What is Law?
o Standard Classical Definition/Sanchez Roman Definition: Law in its specific and concrete
sense is a rule of conduct, just, obligatory, formulated by legitimate power for common
observance and benefit
o Aquinas: law is an ordinance of reason ordered towards the common good, promulgated by
him who has charge of the community
Four Magic elements:
Reasonable Ordinance (Rationis ordinatio)
For the common good (bonus communis)
Promulgated
By legitimate theory
If any of these elements are absent, a "law" is not really a law and need not be
observed
o Justice Edgardo Paras: positive law as a reasonable rule of action expressly or directly
promulgated by competent authority for the common good, and usually, but not
necessarily, imposing a sanction in case of disobedience
o Arturo Tolentino: law in its specific sense as a rule of conduct, just obligatory, promulgated
by legitimate authority, and common observance and benefit
o Max Weber: law as a legitimate order
Order will be called law if it is externally guaranteed by the probability that coercion
(phsycial or psychological), to bring about conformity or avenge violation, and will be
applied by a staff of people holding themselves ready for that purpose"
Basic features of law that distinguish it from customs and conventions are:
Law Customs + Conventions = soft
law
LEGAL THEORIES
o Inquiry into the nature of law
o Following are major legal methodologies on the origin and nature of laws and how they
interplay within the Philippine legal system:
Positivist Theory
o Positive on what the law posits by the authority given to the state/by socially accepted rules
o Known as the command theory
Highlights obedience to the content and expression of the law with the adage "dura
lex, sed lex" and whatever pleases the prince has the force of the law
o Referred to conventionalism
Law is purely a byproduct of human will, not of some natural/divine will
Law is made out of implicit or explicit agreements, treaties, or conventions in society
o Analytic jurisprudence
Studies and recognizes law simply for "what it is"(lex lata)
o Belief that all other approaches to law (natural, sociological, pragmatic) are wrong for
confusing "what ought" with "what is" which positivists describe as the "overlap thesis" or
"isought fallacy"
o One cannot dismiss the law based on what it should be unless nullified or amended
o John Austin: held that the relationship between law and morality is only accidental and that
the law is its own criterion
Legalism
o Thomas Hobbes, another famous positivist
Thought that laws cannot be unjust because these are promulgated by one
authorized with sovereign power
Positivism Legalism
Get-Real Theory/Realists
o "pragmatic jurisprudence"
Focuses on human realities that are often overlooked by hard law, technicalities, and
abstract policies
Brings significance into the question of implementation and whether the law reflects
practical experience
o Law is determined by the actual practices of courts, law officers, and law enforcers; by real
world practice
o Justice Oliver Holmes
Social Darwinist
Belief that life is a struggle to build a superior race rather than pursuit of ethical
humanitarian values
6. Once-Upon-a-Time Approach
o Raises the question of how the law originated
o Takes into account the historic struggles and national profile or identity that colored the law
o Sources of law then includes folklores, religion, and political developments, with influence
of cultural beliefs, traditions, customs, temperaments, consciousness of the people
o Friedrich Karl von Savigny
Claimed that law proceeds from a voltgeist
Law unfolds from the spirit of the people; written and updated as the people evolve
o G.W.F. Hegel
State is the product of converging historical forces going towards an Absolute Point
where freedom will finally be realized
Why is freedom the must of history?
Because man's reason and free will seek independent thinking, self-reliance,
and personal liberty
8. Economic Approach
o Judge Posner: took lead in "economic" jurisprudence and "consequentialism"
Purpose of law is to increase the balance of happiness in society through "wealth
maximization"
Wealth maximization: the sum of all tangible and intangible goods and services,
including the value of rights
Ethic of productivity and social cooperation
9. Forms-and-Fundamentals Approach
o Legal formalism /conceptualism holds that law is a strict science governed by formal
axioms, legal principles, and rules of logic
Rules/principles serve as major premise
Facts of the case as minor premise
Holding of the case as conclusion
o Formalism="textualism"/="plain meaning" approach to the law and or "originalism" or the
original meaning approach to the constitution
Originalism considers the original intent of the drafters
When the meaning is not clear, the court may call the assistance of an expert
(amicus curiae) to expose the real intent of law
Says that judges should only "interpret" not "construct"
o Formalism is by-the-book approach best demanded from certain elements of the legal
system who may abuse their discretionary powers
o Critiques against: they are "inert", considering only the letter but not the spirit of the law,
inimical to the concept of an evolving living constitution
10. Practice Theory
o Philip Bobbit
different approaches to law or modalities have their own uses
Identified 6 modalities:
Historical-- used when the intention is to decipher what was really meant by
the framers of the law
Textual-- looking for what the law simply declares or denies and how it can be
interpreted in contemporary times
Structural-- inferring rules from structures and mandates
Doctrinal--applying rules generated by precedent
Ethical or Moral-- appealing on the ethos or ideals of a government
(teleological)
Prudential-- according to exigencies and the calculus of costs and benefits
Admitted that each modality has been preferred to advance a certain ideology and
that some people only acknowledge a particular approach to the law or to the
Constitution