CHAPTER 2: LEGAL ISSUES AND THEORIES

Friday, 27 September 2019

9:33 AM

I. FOUR ELEMENTS

 Law: connotes binding communal rules (do's and don’ts)

Jural or Human Law
 Refers to sanctioned or enacted law such as statutes, case laws, normative rules, and
precepts

II. Non-Jural or Meta-Legal

 Concerns of the theologians, scientists, and physicists
 Not anchored on human promulgation such as divine law, natural law, and physical
law
 Divine Law: proceeds from sacred writings eg. Bible, Qur'an, backed up by faith
 Natural Law: is the law of our human nature, based on the demands of our
humanity
 Physical Law: refers to the mechanical laws of the universe eg. Laws of gravity,
Newtonian mechanics, or Einstein's theory of relativity

 Concern of lawyers are both jural law and non-jural law.

 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

Duty to comply No sense of duty in Agreements that

Due to customary rules of parties have a duty
external conduct or usages to follow in good
actions/threats faith but without a
By individuals corollary punishment
tasked to when disobeyed
enforce the
law

 Classical Element of Law

Reason and the Common Good
 Law is a rule of human acts, commanding man to act or refrain from acting
 Measure of human acts is human reason, for it is by reason that we perceive and put
order into things
 What is a reasonable law?
 Is necessary, useful, clear in expression, and adapted to place and time
 Tolentino described law in general sense an abstract "science of moral rules, founded
on the rational nature of man, which governs his free activity for the realization of
individual and social ends, of a nature both demandable, and reciprocal
 Does not mean that all ethical norms should be law but only those rules concerning
man with his fellow man
 Aquinas:
 Law can only govern external moral conduct, not internal or private morality
 Goal: law should be observe and promote public morality that concerns the
common good
 Common good
 means the good of everyone; bears the common aspirations of all
 need not be the "greatest happiness for the greatest number"
 Suggested that lawyers should frame the law according to how the subject
matter commonly occurs in the majority of instances
 Legislators should leave room for exceptions when the law need not be strictly
applied
 Careful to distinguish popular morality of popular good from the common
public good
 Law can be a valid public order (reasonable and fair) but may be unpopular to
many

Promulgation and Authority

 Notice to the public: final step in the law-making process
 Public should be able to take notice of the law, whether by publication or by
hear yeas as a matter of due process
 Article 2 of the Civil Code: laws should take effect 15 days after the completion
of their publication in the Official Gazette / newspaper of general circulation
  Due promulgation must come from a competent authority not from some
private individual or public official unauthorized to enact a law

Moral Standards for a Rule of Law

 Lon Fuller (prof in Harvard) enumerated 8 Routes of failure for any legal system and
avoiding these pitfalls will ensure the internal/procedural morality of law so there be
reason in legal ordering.
 8 things to check out:
Lack of definitive rules or law
Failure to publicize or make known to the affected party the rules
Unclear/obscure legislation
Contradictions in the law
Demands that are beyond the power of affected parties
Unstable legislation/frequent changes in law
Discrepancies between adjudication/administration and legislation
 Kofi Annan defines rule of law
 Principle of governance in which all persons, institutions 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

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:

Teleological or Natural Law Theory

o Looks into the principles, purpose, and end (telos) of the law
o Goes to the question of the why of the law
o proponents believe that the law serves a higher universal order based on a "natural order"
which we can discover through our common human reason and validated by human
experience
o Natural law an example of "normative jurisprudence"
 Evaluates the purposes or norms behind the law; what the law ought to be
 Laws are rules for man to realize his basic natural goods and when shared become
society's common good
o Nature is how people normally behave and are expected to behave; human nature is
rational
o Law is a law as long as it pursues the precepts of reason: reasonableness, justice, equality,
and fairness
o Common law: based on precedents and recognizes that there are basic legal principles or
doctrines of reason that the courts must follow
o Application on sexual ethics and reproductive technology:
 Natural law theorists argue that certain sexual behaviors increase the likelihood of
obtaining STD

 Finnis on Basic Goods

o John Finnis
 o Developed the "central case approach" in evaluating law
 Focus (focal meaning) and center of law are those ideal cases (central cases) where
natural rights to basic human goods are served
 Central case is in the fullest sense true law
o Natural Law and Natural Rights (book) provided 7 basic goods of man:
 Life
 Knowledge
 Play
 Aesthetic
 Experience
 Sociability (friendship)
 Practical reasonableness
 Religion (transcendence)
 These cannot be eliminated from humanity that is why they are natural
 Basic goods generate into natural rights and correlative natural duties

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

Rule of Extreme utilitarian Hobbessian form: rule by the law

law  No need for precedent, rules of procedure, or
processes that the law maker himself must abide to
 "I am the State"
o Associated with Chinese political philosophy
 State comes first before the individual
 Duties before rights
  Head of state commands absolute respect and obedience to maintain order and keep
"all under Heaven"
 Confucianism teaches regard for hierarchy and the bond between the ruler and the
subject which supports legalism

 The Hart of the Law

o Herbert Hart: law is a system of "social rules"
 Evolution of law
 Tribal societies started with a "regime of primary rules" where sanctions for
misbehaviors were made through indeterminate means of social pressure and
conformity
 Regime has defects
 To remedy the flaws, early societies entered a "legal regime"
 Rule of recognition (Constitution)

 Criticism of positivist approach:

o Tendency to legalism, formalism, uncritical disobedience to authority which served
dictatorial regimes

Interpretivist or Constructivist Theory

o Ronald Dworkin
 Law is more than explicitly adopted rules
 Has merits or principles behind them that can be "interpreted" or "constructed" by
the courts
 Rights-based, pro-active construction of the law, against the by-the-rule reading of
the law in positivism
 dimensions of legal interpretation:
 Formal dimension
 Look for logical consistency between principles and past decisions
 Substantive dimension
 Look for principles that best "explain" or "justify" the law
 Construed as having a moral rights-based dimension
 Integrity of the law that entitles it to claim to our obedience
 Law is not integral when it is not consistent (formal) and when it goes against
substantial rights and principles (substantive)
 Critique to positivism: it is wrong since it only requires that the law be formally
recognized or claimed as law without going into the merits of the law
 Somewhat akin to teleological approach but Dworkin thought principles and rights
are not something already laid down by natural law but something still to be
construed by the adjudication of judges

 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

5. Critical Theory (side comment: veryyy Marxist!!!! :D)

o Main tenet: law has been the means to enshrine and coercively impose the wishes of the
dominant group or institutions
 Ruling classes are the same ones who make the law, judge the law, and execute the
law
 Governments are of the ruling people, by the ruling people, and for the ruling people
 Since law serves the status quo, revolutions and uprisings are necessary
o Critical Legal Theory
 Questions law's assumptions that people are free and that market is free because in
reality, these are already conditioned by economic, social, ideological, and political
forces, or the present "hegemony"
 Exposes the inconsistencies, inhumanities, and imperialism of the 1st World Western
democracies
 Western superpowers prevents former colonies from seeing the flaws in their
legal system that are being adopted globally
 Aims for a deconstruction of the law and uses the "hermeneutics of suspicion" to
advance marginalized causes
 Offshoot: critical feminist theory, critical race theory, & postmodernism
o Marxist and socialist: law is a form of class rule and control
 Criticized the elitist tendencies of the law that it serves the dominant paradigm while
disregarding the real conditions of the people

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

7. Functional or Sociological Approach

o Looks into law as a measure for behavioral conformity and social engineering
o Law is both a means of social control and social advancement
 o Theory is called "functional" by analogy to biology: where every cell has different functions
to maintain a healthy organism so that each one's different pursuits are good to the whole
society
o Justifies "judicial activism" & "judicial legislation" & is related to Realist Theory
o Positivist formalism vs. functional instrumentalism
 Latter justifies creativity in decision-making beyond the original intent of the law, if
this will serve good public policy, human rights, and social interests
o Main proponents:
 William James: taught law as means to satisfy needs
 Charles de Montesquieu: law must adapt to shifting social conditions
 R. Jon Jhering: law as a method of ordering society composed of competing interests
 Roscoe Pound: maintained that a coherent society must have a pattern of culture that
determines its ideology
 Law is an institution to satisfy social wants, by ordering human conduct through
a politically organized society with a systematic and orderly application of force
 Purpose of law: not to impose a particular sector's will upon others but to
integrate groups by reconciling, mediating, and controlling different interests
 Max Weber: typology of law into rational (logical/scientific) and irrational (emotional,
superstitious)
 Roberto Unger: law must have a cultural context to support it
 Eugen Ehrlich: legal norm must follow actual social norms and be a "living law"
o Sociological approach has been used to recognize and advance the rights and interests of
marginal groups over the power wielded by state

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