PHILOSOPHY OF

LAW

BR./ ATTY. IROL “ERROL” TORRES, SVD

HNU LAW CENTER DIRECTOR
Philosophy of Law

► A study of the historical roots of law from

Roman times, the schools of legal thought that
spurred its growth and development, and the
primordial purpose of law and legal education.
(LEB MO No. 1, Series of 2011)
Philosophy of Law
At the end of the course, the students should be able to:
► 1. Trace the historical roots of law, from the Graeco-Roman
times to the present, including the Filipino Legal Philosophy;
► 2. Know the primordial purpose of the law and legal
education;
► 3. Have a better understanding of the laws as well as their
provisions and the philosophy or spirit behind them.
The Philosophy of Law
by Atty. David Robert Aquino

Chapter 1: Preliminary
Considerations ► Modern Theories
► Legal realism
Chapter 2: Schools of ► The Path of Law
Thought
► Bad Man Theory
► Classical Theories
► Natural Law ► Legal Interpretivism
► Legal Positivism ► Pure Theory of Law
The Philosophy of Law
by Atty. David Robert Aquino
► Chapter 3: Law and ► Chapter 7: Crime and
Government Punishment
► Chapter 4: Law and ► Chapter 8: Torts and
Morality Damages
► Chapter 5: Law and
► Chapter 9: Legal
Equality
Philosophy and Legal
► Chapter 6: Law and Justice Education
Introduction to Legal Profession
► Law Profession
► most popular
► most glamorous
► most misunderstood
► most maligned
Introduction to Legal Profession
► Lawyers
► murder the truth
► twist the law
► defend the scum of society
► good in torturing the English language
Introduction to Legal Profession
► Napoleon: starve lawyers by legislation
► Shakespeare’s play “Henry VI”, Dick the
Butcher: “The first thing we do, let’s kill all
lawyers.”
► “The Devil’s Advocate”: legal system “is a
pyramid with Satan on top.”
► “Liar Liar”
Introduction to Legal Profession
► But:
► neither trade nor business, but a noble profession
► a form of public trust, entrusted to those qualified and
with good moral character
► vested with public interest, all his acts involve public
concerns
► the prestige lies in the objective function of bringing
about justice
► has the broadest educational background for leadership
in the community
Philosopher
► “pilosopo” (Pilosopong Tasyo)
► Greek: “philos” and “sophia” (love and
wisdom)
► intellectual
► offer his wisdom; gets around things by
argument
vs. lawyer: offer his counsel; gets his client off
the hook by wordsmith
What is Philosophy?
► 1. The Historical Approach – study of historical figures: philosophers.
► 2. The Analysis of Language - only truths of logic and empirically verifiable
statements are meaningful.

► 3. A Program of Change - role of philosophy is to change the world.

► 4. A Set of Questions and Answers – questions with proposed
answers/ solutions, e.g. of question: Are were born with knowledge?

► 5. World-view (Weltanschaüung) - the attempt to come to a total view of the

universe as it relates to the make-up of matter, man, God, the right, the nature of politics, values, aesthetics, and any other
element in the cosmos that is important.

► 6. Criticism - critical thinking involving a dialectic in the conversation.

Divisions of Philosophy
► 1. Epistemology- the theory of knowledge, which involves: (l) the source or ways to
knowledge; (2) The nature of knowledge; (3) The validity of knowledge.

► 2. Metaphysics – an attempt to describe the nature of reality; involves questions such

as the nature and makeup of the universe, etc.

► 3. Logic - a term used to describe the various types of reasoning structures, the relationship of
ideas, deduction and inference, and in modern times.

► 4. Ethics - a discipline concerning human moral behavior and raises the questions of right or
wrong.

► 5. “Philosophies of”- concerned with the basic structures of the discipline and
the presuppositions needed for the study.
Philosophy of Law
- “love of the wisdom of the law”; a branch of philosophy, and therefore deals primarily with philosophy;
broader than legal philosophy.

► 1. Legal Philosophy - a discipline in law, and therefore deals

primarily with law.

► 2. Jurisprudence - In US, commonly means philosophy of law; In

the Philippines, commonly used to refer to case law or the legal decisions which have developed and
which accompany statutes in applying the law against situations of fact.

► 3. Legal Theory- theoretical study of law; jurisprudence.

Recitation 1:
In 2-3 sentences, write down
below why do you want to
become a lawyer?
Philosophy of Law
Lecture 2
Br. Irol Torres, SVD
Why do you want to become a lawyer?

Is your motivation, strong enough?

If impure, you still have time to purify.
“He who has a why to live for can bear almost any how.” –
Friedrich Nietzsche
“When you want something, all the universe conspires in
helping you to achieve it.”– from the “The Alchemist” by
Paulo Coelho
What is law?

1. Jural – human law; sanctioned or enacted law such as statutes, case laws,
normative laws (ethics), and precepts (orders); concern of lawyers
2. Non-jural – meta-legal; rule not anchored or premised on human promulgation,
such as divine law, natural law, and physical law; concern of theologians / scientists
/ physicists
Divine law – proceeds from sacred writings such as the Bible
Natural law – law of our human nature, based on the demands of our humanity;
inherent in people, e.g. killing another is wrong
Physical law – scientific law; mechanical laws of the universe
What is law?

Law is a rule of conduct, just, obligatory, formulated by legitimate power for

common observance and benefit. (Lapitan vs. PCSO)
- Cf. St. Thomas Aquinas definition of law in Summa Theologica: “law is an
ordinance of reason ordered towards the common good, promulgated by him
who has charge of the community.”
- Elements:
- 1) reasonable ordinance (Does it make sense?);
- 2) for the common good (Did it take into consideration everyone’s interest?);
- 3) promulgated (Was the public notified?); and,
- 4) by the legitimate authority (Who made the law?)
Reason and Common Good

Reasonable – necessary, moral, useful, clear in expression, and adapted to place

and time (Aquinas)
If appealing to the conscience and moral sensibilities of ordinary men: morally obliging
and will facilitate enforcement.
If unreasonable, it would invite defiance and dissent.
Common Good – good of everyone towards achieving personal perfection
Based on the principle of equal dignity of all have a quality of life
Considering all stakeholders’ interests, special conditions, and integral development.
Vs. populist or majoritarian morality – as good or bad as the population forming it
Promulgation and Authority

Promulgation – notice to the public, by some kind of advertisement by

publication; copies of the law must be accessible to the public to avoid
misunderstanding its contents
Art. 2 of the NCC: “Laws shall take effect after 15 days following the completion of their
publication either in the Official Gazette, or in a newspaper of general circulation, unless
it is otherwise provided. (Tañada vs Tuvera)
Art. 3, NCC: “Ignorance of the law excuses no one from compliance therewith.” (“Ignorantia
legis non excusat.”/ “Ignorantia legis neminem excusat.”)

Authority – competent authority, authorized to enact a law

Wields the power to promote the common interest
What is law?

Basic features of law according to Max Weber:

1. the duty to comply;
2. due to external actions or threats;
3. by individuals tasked to enforce the law.
Vs. Customs
- no sense of duty to comply
Vs. Conventions (soft laws)
- without corollary punishment when disobeyed
Branches of Law

1. As to whether a right or a procedure is given

- Substantive – establishes rights, duties, and corollary prohibition
- Remedial – procedural or adjective law; prescribes the manner of
administering, enforcing, appealing, amending, and using legal rights and
claims.
2. As to scope
- Public or political – concerned with the structures of government, the
relationship between the individual and the State; violation is under criminal law
- Private law – concerned with the rules governing the relationship of
individuals; governed by the rules in civil law or mercantile law, etc.
Branches of Law

3. As to system
- Civil Code System – based on coded laws, codified through parliamentary statutes,
e.g. Code of Hammurabi (Babylonian Law Code in 1772 BC); Justinian Law
(Roman Law Code in 6th AD).
- Common Law System – based on case or judge-made law that relies on precedents
set by judges in a court case, e.g. English-speaking countries
- Mixed System – laws are enacted by legislation which are interpreted, developed
and applied in courts, whose decision are considered part of the law of the land,
e.g., Philippines being under Spain and Americans
- Islamic Law – Sharia Law; based on the moral precepts of Islam
- Canon Law - Catholic Church law
 Law and Truth

> “to tell the truth and nothing butthe truth”

p> Perjury - lying under oath
> RPC: “Art. 183. False testimony in other cases and perjury in solemn
affirmation. — The penalty of arresto mayor in its maximum period To prision
correccionalin its minimum period shall be imposed upon any person who,
knowingly make untruthful statements and not being included in the
provisions of the next preceding articles, shall testify under oath, or make
an affidavit, uoon any material matter before a competent person
authorized to administer an oath in cases in which the law so requires. xx
x”
 Law and Truth

> Relativist — truth is relative, subjective, perspectival

and limited by what the person personally
experienced or gained knowledge of.

> Scientific Truth — determined orverified through

Clinical observation; tested in laboratories

> Legal Truth — determined through rules of evidence;

tested in courts
 ss ib le ev id en ce , th us , no t necessarily the
>» Supported by legally admi rred.
substantive truth or comple te, actual truth of what occu
:
> The rules of evidence
id en ce li ke un au th en ti ca te d, hearsay, and
> 1) does not admit some ev
;
evidence from illegal searches
no ce nc e of th e ac cu se d, regularity of public
e in
p> 2) raises presumption, lik
acts;
ev id en ce - be yo nd re as on able doubtin
of
> 3) provides differing weight ev id en ce fo rc iv il ca se s, substantial
e of
criminal cases, preponderanc ob ab le ca use for preliminary
n ca se s, an d pr
evidence for admi
investigation.
 BLINDFOLD OF JUSTICE

st ic e — sy mb ol of le ga l system; to render what

> Lady Ju
t fear or favor
is just to all persons withou
/ Ju st ic e = gi vi ng th e ot her what is due to
» Just
r; re nd er in g to ea ch wh at is due, giving U +. | e E
him/he y an d L A D Y
mind the propriet
what is right, bearing in
sufficiency of the act. po or; 2) hiring a group of
se d on th e ri ch an d
nt impo
» Examples: 1) punishme
fo r an ho ur , an ot he r gr oup for half day
workers
cl as si fi ca ti on — th os e Cl assified under the same
» Doctrine of reasonable Wa y, Li ke tr eated alike, unlike shall be
d th e sa me
category is to be treate
treated in unlike Way.
Th us , Ju st ic e is an eq ua li ty in proportion.
»
BLINDFOLD OF JUSTICE

“reflective
In making laws or decisions, we should do a
“veil of
equilibrium” = we imagine ourselves under a
(John Rawls)
ignorance” unaware of our place in society.
on will envy
We must meet the “envy test” where no pers
r ba se d on me re ci rc um st an ce s Or lot in life (Ronald
anothe
Dworkin)
in g to th e “en tit lem ent the ory ” pe op le ar e entitled
Accord
uced.
to the things they earned, worked for, or prod
 Philosophy vs Law

° Law — penchantfor order; rigid processes and systems

a ° Philosophy — inquisitive; free range of thought;

- allows us to expand our concept of law beyond its rigidity and established
SYS tem

- elevates law trom a mere reoulatory regime to a vehicle to further the ends
oaf justice and equity beyond the usual borders of statutes and regulations.
 Reason and Spirit of the Law

° 1. Whenthe lawis clear, apply.

° 2. Whenthe law is vague, or would cause injustice when applied, look for the
intention of the lawmaker.
° We test the lawbyits results; and likewise, we mayadd, byits purposes. It is a cardinal
rule that, in seeking the meaningof thelaw, the first concern of the judge should be to
discover the inits provisions the intent of the lawmaker Unquestionably, the law
should never be interpreted in such a wayas to cause injustice as this is never within the
legislative intent. An indispensable part of the intent, in fact, fro we presume the good
motives of the legislature, is to render justice. (Alonzo vs. IAC)
 Alonzo vs. LAC (1987)

Art. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for
the price of the sale, provided they do so within the period of
one month from the time they were notified in writing of the sale
by the vendor.
 Alonzo vs. LAC (1987)

Issue: Did actual knowledge satisty the requirement of Art. 1088 of the
NCC?

Ruling: Yes. The co-heirs were undeniably informed of the sales although no
notice in writing was given to them. Andthere is no doubtthateither that
the 30-day period began and ended during the 14 YEARS betweenthe sales
in question and the filing of the complaint for redemption in 1977, without
the co-heirs exercising their tights otf redemption.
 Alonzo vs. LAC (1987)

° While courts may not read into the law a purpose that not
_ there, courts nevertheless have the right to read outof it
the reason for its enactment. In doing so, courts defer not
to “the letter that killeth” but to “he spirit that vivifieth,”
to give effect to the law maker’s will.
 Alonzo vs. LAC (1987)

° Thespirit, rather than the letter of a statute determines its construction,

hence, a statute must be read accordingto its spirit or intent For whatis
within the spirit 1s within the statute althoughit is not within theletter
thereot, and that whichis within the letter but not within the spirit 1s not
within the statute.
* Stated differently, a thing whichis within the intent of the lawmakeris as
much within the letter of the statute as if within the letter; and a thing which
is within the letter of the statute is not within the statute unless within the
intent of the law makers.
 League of Cities of the Philippinesvs.
L

COMELEC (2017)
® Facts:

* 1.11" Congress (1998-2001), 57 cityhood bills were filed before the HR; 33 became
law; 24 not acted upon. The income requirement then to quality for cityhood1s
P20M.

° 2. Senate: a bill to amend Sec. 450 of RA 7160 (LGC of 1991), seeking to increase
income requirement to becomea city from P20Mto P100M; became a RA 9009
ettective June 30, 2001.

3. 12and 13 Congress failed to approve the cityhood of the 24 municipalities.

 League of Cities of the Philippinesvs.
L

COMELEC (2011)
Facts:

4, Sen. Aquilino Pimentel suggested the filing by the HR ofindividual bills to pave
the wayforthe municipalities to becomecities and then forwarding themto the
Senatefor properaction; 16 out of 24 municipalities filed theirbills, including Bogo,
Carcar, Naga of Cebu, and Guihulngan of Negros Or.
5. On June 7, 2007 both Houses of Congress approvedthe individual cityhoodbills,
which lapsed into law on various dates.
6. Petitioners seek to declare the cityhood laws unconstitutional for violation of Sec.
10, Art. 10 of the Constitution as well as for the violation of the equal protection
clause.
 League of Cities of the Philippinesvs.
L

COMPLEC (2071)
Issues: W/N the laws violate 1) Sec. 10, Art. X of the Conti; [2) equal protection
clause.]

Rulings:

1) November 8, 2008, voting 6-5, unconstitutional.

2) March 31, 2009, voting 7-5, denied first MFR; denied second MFR on April 28,
2009.

3) December 21, 2009, voting 6-4, reversed the Nov. 8, 2098 decision; constitutional
 League of Cities of the Philippinesvs.
L

COMELEC (2011)
Ruling:

4) August 24, 2010, voting 7-6, granted the MFR; unconstitutional

5) February 15, 2011, reversed the decision for the 4time; constitutional
ly
6) April 12, 2011, upheld its ruling with finality; MRF denied; constitutional.
 L
League of Cities of the Philippinesvs.
COMELEC
° Ruling: (December 21, 2009 Decision)

— ° The Supreme Court held thatlegislative intent 1s part and parcel of the law,
the controlling factor in interpreting a statute. In construing a statute, the
proper recourse is to start out and followthe true intent of the Legislature
and to adoptthe sense that best harmonizes with the context and promotes
in the fullest manner the policy and objects of the legislature. In fact, any
interpretation that runs counter to the legislative intent is unacceptable and
invalid.
 League of Cities of the Philippinesvs.
L

COMELEG (2009)
* Ruling: (December 21, 2009)

° Behind everylawlies the presumption of constitutionality. Consequently, to

him who would assert the unconstitutionality belongs the burden of proving
otherwise.

® A law canbe violative of the constitutional limitation only when the

classitication is without reasonable basis.
 L
League of Cities of the Philippinesvs.
COMELEG (2009)
® Ruling: (from February 15, 2011 decision)
® Records of the Senate
_ ° The (Senate) President: So the understandingis that those bills which are already pending in
the chamber will not be affected.

® Sen. Pimentel: These will not be affected, Mr. President.

Clearly, Congress intended that those with pending: cityhood bills during the 11th
Congress would not be covered bythe newand higher income requirement“imposed
by RA 9009. When the LGC was amended, the amendmentcarried with it both the
letter and the intent of the law, and such were incorporated in the LGC bywhichthe
compliance of the Cityhood Laws was gauged.
 L
League of Cities of the Philippinesvs.
COMELEG (2009)
° Conclusion: (April 12, 2011 resolution)

— ° “We should not ever lose sight of the fact that the 16 cities... not only had
conversionbills pending during the 11% Congress, but have also complied
with the requirements of the LGC prescribed prior to its amendment by
RA9009. Congress undeniably gave these cities all the considerations that
justice and fair play demanded. Hence, this Court should do noless by
stamping its imprimatur to the clear and unmistakable intent and by duly
recognizing the certain collective wisdom of Congtess.”
 The Laws and The Three Branches of the Government
The functions of government in the main are distributed to the three departments of the
government. These departments are independent, co-ordinate, and co-equal, with each of them
having exclusive cognizance of matters within its jurisdiction, supreme within its own sphere, and
free from interference in the exercise of powers entrusted to it, subject to the scheme of checks
and balances as constitutionally ordained. (Luzon Stevedoring Corp. vs. Social Security
Commission, July 31, 1970)
Under the Constitution, there is no absolute separation among the three departments.
Constitutional provisions authorize a considerable amount of encroachment or checking by one
department in the affairs of the others, to make the presidential system of government workable.
To maintain the balance or to restore it if upset, each department is given certain powers with
which to check the others. Examples: (a) Checks by the President: He/she can veto bills enacted
by Congress, and through the pardoning power may modify or set aside the judgements of the
court; (b) Checks by Congress: Congress may override the veto of the President, or amend
decisions of the courts by the enactment of a new law; and, (c) Checks by the Judiciary: The
Judiciary may declare legislative measures and executive acts as unconstitutional, and determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Congress or the President. (de Leon and de Leon, “Textbook on the
Philippine Constitution”)
The constitution is basically a charter of limitations of government power and enshrines a
system of separation of powers, and checks and balances under which no man is the law nor above
the law. It mandates that civilian authority is at all times supreme over the military. It ordains the
weakest department as the guardian and final arbiter of the Constitution. (Atty. David Robert
Aquino, “The Philosophy of Law”)
1. What is the power of the Executive Department? The Legislative Department? The Judicial
Department? Which department makes laws, alter laws, repeal laws, applies laws, executes
laws, and interprets laws?
2. To whom are the powers vested, i.e., where is the judicial power vested? The legislative
power? The executive power? Is the executive power vested in the Vice President of the
Republic of the Philippines? Is the legislative power vested in the House of Senate alone?
Is the judicial power also vested in the Municipal Trial Court?
3. What is the Doctrine of Separation of Powers? Is it absolute?
4. The Judicial Department is considered the “weakest” of the three departments because it
has “neither purse nor sword”, yet why is there a doctrine called “Doctrine of Judicial
Supremacy?”
5. What is the Principle of Checks and Balances?
American in Filipino
tok UAeo ae
Br. lrol Torres, SVD
American Model

¢ Philippine Constitution: of American modeland origin

¢ Thus, Filipino jurists and legal scholars define and
explain the nature of the Philippine constitution just like
the Americans
¢ CommonLaw- produces equity |disoetea a formal
set of legal and procedural rules and doctrines to aid or
even override commonand statute law
* Vs. Roman Law- highly ritualistic and highly formal,
gradually evolving from form to substance
Republic vs. Sandiganbayan, July 21, 2003
(Separate Opinion of Justice Puno)

¢ Two facts from our constitutionalhistory:

¢ 1. Filipinos are a freedom-loving race with high regard for their
fundamental and natural rights
¢ No amount of subjugation or oppression... could obliterate
their longing and aspiration to enjoy these rights
« Filipinos fought for and demandedtheserights from the
Spanish and American colonizers, and from an authoritarian
vita
¢ Rights are written starting from the 1899 Malolos
Constitution
Republic vs. Sandiganbayan, July 21, 2003
(Separate Opinion of Justice Puno)

« 2. Although Filipinos have given democracyits ownFilipino face, it is

undeniablethat our political and legal institutions are American in origin
« Filipinos adopted the republican governmentand theBill of Rights
* Presidency is distinct from legislative and the judicial departments
* These institutions sat well with the Filipinos who have long yearned for
participation in the government
¢ Undergirding these institutions was the modern natural law theory
which stressed naturalrights in free, independent and equal
individuals who banded together to form governmentfor the
protection of their natural rights to life, liberty and property.
Republic vs. Sandiganbayan, July 21, 2003
(Separate Opinion of Justice Puno)

* Sole purpose of the government: to promote, protect and

preserve these rights
¢ And when the governmentnot only defaults in its duty but
itself violates the very rights it was established to protect, it
forfeits its authority to demand obedience of the governed and
could be replaced with one to which the people consent.
¢ The Filipinos exercised this highest rights in the EDSA
revolution of February 1986.
The Erap Impeachment Trial and EDSA 2

¢ Mirrors of the psyche of the Philippine society

¢ Filipino way of thinking is shared by pre-colonial

Filipinos, the IPs and the typical lowland Filipinos

¢ Their Aga Philosophy is different from that behind

the legal system practiced in the Philippines which is
based on western or American jurisprudence.
The Erap Impeachment Trial and EDSA 2

¢ 1. narrow scopeoflaw vs. Filipino’s wider scope

¢ Erap trial follows the impeachmenttrial of Pres. Clinton

¢ But, the people felt betrayed when the senators stuck
to their legal defenses and narrow definitions; in EDSA
2, the eleven senators who refused to open the
second envelope wereridiculed.
The Erap Impeachment Trial and EDSA 2

¢ 2. abstract vs. concrete.

¢ The lawyers have clearly defined the articles of
impeachmentinto four areas (bribery, graft and
corruption, betrayal of public trust, and culpable
violation of the Constitution) which sound abstract
¢ For the people, the issue was more of People of the
Philippines vs Estrada together with his mansions,
mistresses, his connection with the cronies, etc.
The Erap Impeachment Trial and EDSA 2

¢ 3. rights vs. duty

«Humanrights is stressed in Western countries
«But, for the people Erap has a duty to serve
the greater need of the nation; thus he has no
right to stay in office if he does not observe his
duty
The Erap Impeachment Trial and EDSA 2

- 4. either/or vs. both-and (mediation and

harmony)
¢ The court requires the verdict of guilty or
innocent
¢ The people chose mediation and non-violent
way, semblance of graceful exit or saving
Erap’s face
For Reflection:

¢ While EDSA 1 demonstrated the American influence, EDSA

2 brought out the real Filipinos in us:
¢ Are we Satisfied with our westernized / American
legal philosophy?
¢ Is the American legal system adopted by our country
responsible for the mess we have?
¢ If we follow the principles of Filipino legal philosophy,
will progress take place?
Theory of Law
Br. Irol A. Torres, SVD
Legal Theory

• Legal Theory = a methodology or topology of discourses

about the origin, purpose, and character of the law.
• Evaluates and prescribes how a body of conduct
becomes norm, rules, or obtains binding effect.

• Vs. Theory of a Case = the principles, claims, or grounds under

which the litigant proceeds
Major Methodologies

Classical
• Natural Law Theory
• Positivist Theory

Modern
• Interpretivist or Constructivist Theory
• Realist Theory
• Critical Theory
Classical Theories

• 1. Natural Law Theory = proposes that there is a link or

relationship between concepts of law and morality
• One can fully appreciate the nature of law through the
necessary reference to established precepts of
morality
• The proponents believe that that the law serves a
higher universal order or “natural order” which we can
discover through our common human reason, needs,
and aspirations and validate by human experience
Classical Theories

• 2. Legal Positivism = also known as “conventionalism,” states that

law is purely a product of human will, agreement, proposition,
treaties, or convention, not of some natural law or divine will
• Laws are made out of explicit or implicit conformities and
resolutions, not due to some extra-legal reality like natural
rights, divine providence, etc.
• The law “posits” by the authority given to the State or socially
accepted rules
• also known as “Command Theory,” it highlights obedience to the
content and expression of the law “dura lex, sed lex” and “quod
principi placuit legis habet vigorem” (whatever pleases the
prince has the force of law)
Modern Theories

1.Interpretivist (or Constructivist) Theory = what

the law means is what the judges of the law would
read it to mean
•Law is more than explicitly adopted rules, for it
has principles or merits that can be interpreted
or constructed by the courts to contribute to
the growth of law
Modern Theories

2. Realist Theory = focuses on the human realities that are often

overlooked by hard law, technicalities, and abstract policies
= tells the law and law practitioners to get real, whether the law
reflects practical experience
= thus in court case, there is a mystery plot, private revelations,
strange personalities, a protagonist and antagonists, twists of
evidence, a walk down memory lane, a judgment in suspense, a
sequel through appeals, etc.
Modern Theories

3. Critical Theory = the alw has been the means to enshrine and
coercively impose the wishes of the dominant group or institutions.
= the ruling classes are the same ones who make the law, judge
the law, and execute the law.
= the governments are of the ruling people, by the ruling people,
and for the ruling people
= law is meant to preserve the status quo, so revolutions and
uprisings are necessary
Assignment

•Read the following from the Separate Opinion of

Justice Puno:
•1. Introduction and I. Prologue (pp. 1-2)
•2. V. Application of Natural Law… (pp. 31-35)
•3. VI. Epilogue (pp.35-36)

(Bonus: If you have Bill of Rights subject, pages 14-19 contain:

“B. History of the Philippine Constitution and the Bill of Rights”)
Natural Law
 A
NATURAL LAW
Nature is how people normally behave and are expected to behave

Human nature = rational, Homo sapiens (“wise man”

= Can reason on whatis right and wrong, fair and appropriate

= Seeking self-preservation and perpetuation, form families and educate children until adulthood

= Organizeinto societies, giving rise to political institutions

= Wantorder, thus the needfor the rule of law

Thus, the lawis lawif it pursues the precepts of reason: reasonableness, justice,
equality, and fairness
= The law maybe stricken downfor being unreasonable and unjust

= Inthe absence of a law orin the presence of a bad law:jurists appeal to a higherlaw,thatis,
the principles of reason or moral law
 NPNMO) SAV BENete

= Thus in Art. 19, NCC: “Every person must, in the exercise of his
rights and in the performanceof his duties, act with justice, give
everyone his due, and observe honesty and goodfaith.

- Not enough that an act be legal

Under Constitutional Law: courts may not question the wisdom of the
law (role of the legislators) but may nevertheless declare the law
unconstitutional for not meeting fundamental requisites of a just law,
such as “reasonableness” and “necessity.”
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NENEU NMora
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= Natural Law Theory = proposesthat thereis a link or

relationship between concepts of law and morality
One can fully appreciate the nature of law through the
necessary reference to established precepts of morality
The proponents believe that the law serves a higher
universal order or “natural order’ which we can discover
through our common human reason, needs, and
aspirations and validate by human experience
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NINAUCY\ MEoa
Basic inclinations of man according to St. Thomas Aquinas:

1. To seek good, including his highest good, whichis eternal

happiness with God;
2. lo preserve himself in existence;

3. To preserve the species,I.e., to unite sexually;

4. To live in community with other men;

5. To use his intellect and will, i.e., to Know the truth and to makehis
own decision.
«= John Finnis — developed the “Central Case Approach”

= The focus and center of the law are those ideal cases where natural rights to basic
goods are served.

= There are seven “BASIC GOODS?’natural to man: 1) life; 2) knowledge; 3) play; 4)

aesthetic experience; 5) sociability (friendship); 6) practical reasonableness; 7)
spirituality/ religion (transcendence).

= These needs or deep human desires are recognized by anyonewith sufficient

reason and experience, and thus cannotbe eliminated from humanity, thus,
NATURAL.

These basic goods generate into “NATURAL RIGHTS”andcorrelative “NATURAL

DUTIES”
= Thus, natural rights are “self-evident” and “non-derogable”as they are ascertainable
and require no furtherproof.
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1. Classical Phase: Greeks and Romans philosophers(e.g., Plato and Aristotle;

Stoics): human reason is common among men and with this, the common precepts
of right law and equity

2. Scholastic or Thomism Phase(e.g., St. Thomas Aquinas): natural law is man’s

participation with eternal law

3. Enlightenment or Modern Phase(e.g., Kant): used natural law as a basis for

natural rights and duties

4. International Law Phase (e.g., Hugo Grotius, Francisco de Vitoria, and Francisco
Suarez): natural law is the law of all men; thus, “general principles of law recognized
by civilized nations” as a sourceof international law (Art. 38 of the Statue of ICJ)
 i
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NINIUSY\E,et

= Aristotle = Father of Biology, and Father of Natural Law for having articulated the
existence of natural justice or natural right

= Observed that human beings have a rational nature that must be followed as a matter of
FEW]

People havedifferent functions and interestsin life, yet they have commonfunction
which separates us from other species: reasoning

To live well = to function well; reason makes us seek whatis appropriate, fair, just, and
right

“virtue jurisprudence”: What would a virtuous lawyer do? Would a righteous judge agree?
 ss
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NUNRU SVN
Also called “Teleological Theory” = looksinto the principles, purpose, and end
(telos) of the law.

= Goesto the question of the “WHY”of the law; the purpose, the use, the end of
the law

It is an example of “Normative Jurisprudence” = evaluates the purposes or norms

behind the law

Laws are viewedasrules for man to realize his basic natural goods and when
shared, become society’s common good
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NINAUSTNIEN

Stoics (stoic = apathy, because for Stoics, suppressing emotions and sensitivity to
pleasure or pain are neededto clear the mind of whatis really good.)

emphasis on the equality of all emn, governed by the samelaw.

Whatever one’s status in life, one can find happiness in doing whatis good

E.g. Cicero: “we are born for Justice, and that right is based, not upon men’s opinions,
but upon Nature’;