Reviewer on Legal Philo

The Relevance of Philosophy to Law Philippine Law Journal Emmanuel Q. Fernando What is Philosophy? 1. Love of knowledge 2. A rational investigation of certain fundamental problems about a man and his environment 3. A battle against bewitchment of our intelligence by means of language. Differentiate Philosophy of Law v. Sociology of Law. Philosophy of law is the nature of ultimate reality. Its perspective is above or superior to Sociology. On the other hand, Sociology of law’s purpose is to explain and predict. Its perspective is outside or alongside of the law. What are the two approaches to Philosophy? Method-oriented Problem-oriented approach (Rational) approach Characteristics of Problem- Analytical oriented approach: - Conceptual - General (wideness of scope) - Linguistic - Abstract (intangible; nonconcrete) - Fundamental (foundational; building-blocks; stable) - Controversial (no agreed method for determining solution to a problem What are the ages of Philosophy? 1. Metaphysics (What is the nature of ultimate reality) 2. Epistemology (Theory of knowledge) 3. Analysis Under the age of Epistemology, should a philosopher consult his own power of rational insight? NO. A philosopher is not supposed to consult his own powers of rational insight due to inherent limitation of reason is he wanted to know the real nature of the world. The world does not necessarily have to conform to the structure of our grammar. What are the limitations/fallback of a rational argument? 1. Inherent limitations on pure reasoning 2. Absence of evidence 3. Misguided logic of their own reason. Distinguish Science v. Philosophy Science is a first order discipline. It investigates the world directly. On the other hand, Philosophy is a second order discipline. It determines whether the knowledge claims made by Science is not prone to error. Likewise, it checks whether the deductions are logical and if the conclusions are justified. Finally, while scientists experiment and gathers data, philosophers think in an armchair. What is Jurisprudence? 1. Juris – law; Prudentia – Prudence; careful judgment that allows someone to avoid danger or risk. 2. Case law; Supreme Court decisions 3. Judicial decisions which apply or interpret laws and form part of the legal system of the Philippines (Art. 8, NCC) What is General or Universal Jurisprudence? (Austin) General or Universal Jurisprudence means the study of the principles or notions and distinctions common to various legal systems, and forming analogies or likeness by which such systems are allied. What is the distinction between narrow and wide sense of jurisprudence? (Austin) 1. Narrow Sense: Jurisprudence WHAT IS LAW The knowledge of law as a science, combined with the art or practical habit or skill of applying it. 2. Wide Sense: Legislation/Censorial Jurisprudence WHAT THE LAW OUGHT TO BE

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The science of what ought to be done towards making good laws, combined with the art of doing it.

4 basic problem of study of legal system (Joseph Raz) 1. Existence 2. Identity 3. Structure 4. Content What is Integrative Jurisprudence? (Jerome Hall) Integrative Jurisprudence is an approach of historical or sociological perspective. It provides that law was linked not only to History and Sociology, but also to Philosophy or Ethics. It takes into account all significant aspect of legal problem. What are the 2 characteristics of Jurisprudence? 1. System of what common to various system 2. Linkage to other discipline. What are the 2 kinds of perspective to Jurisprudence? 1. External Perspective 2. Historical/Sociological perspective What is legal theory? Legal Theory is an aspect of Jurisprudence that deals with the specific question “what is the nature of law?” What is Philosophy of law? Philosophy of Law is a rational inquiry into: (1) Nature of the law, legal reasoning What is law and other legal phenomena approach (Jurisprudence) - A conceptual, factual and logical analysis (2) Rational consideration and What law ought to appraisal of normative issues be approach related to law, like the obligation - A rational to obey the law, the enforcement of justification; morality, the problems of ideal reasoning thru justice, liberty, punishment and opinion or POV the like (Jurisprudence & Legal Theory) *Definition (1) & (2) pertains to Jurisprudence; Definition (1) pertains to Legal Theory. Philosophy of law’s scope is narrower; Jurisprudence’s scope is broader. What are the 3 types of definition? 1. Essentialist Definition – real definition/ explanatory 2. Speculative Definition – merely proposal recommendatory 3. Lexical Definition – dictionary meaning

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What are the parts of a definition? 1. Definiendum – word or phrase to be defined 2. Definiens – the defining phrase What are the two (2) requirement for definition to be a true definition? Its (1) purpose and (2) criterion for logical correctness must be purely verbal or linguistic. COGITO. ERGO. SUM – I think. Therefore. I am. René Descartes What is the difference between a philosopher and a lawyer? A philosopher is interested in abstract and ideal law, while a lawyer is interested in concrete and existing law. Why must a law student study philosophy? 1. To be a better lawyer 2. To be a better human being 3. To define the nature of law to apply it in everyday life. What are the 2 kinds of law? 1. Descriptive Law – merely describes uniformities or regularities in the world or in nature; May NOT be violated (i.e. scientific laws). 2.

Prescriptive Law – prescribe a type of behavior which is supposed to be obeyed; may not be violated. Page 1 of 3

1.2 Natural Law – Principles of eternal law specific to human beings. 1.3 Divine Law – Law that exists over and above natural law that guides us to ultimate goal – salvation 1.4 Human Law – Rules framed by the head of political community for the common goods of its members.

2.1 Command – Rule of action imposed upon men by some authority who enforces obedience to it. 2.2 Customary law – Any rule of action which is observed by men and not imposed by some men 2.3 Moral law – Principle of right and wrong

Differentiate “just” and “unjust” law

2.4 Practical law – Rules for attainment of some practical end (i.e. how to drive a car)

“Just Laws” should be followed. It is legally valid. It is a real law that promotes common good and have legal authority. On the other hand, “Unjust Laws” are without legal authority, it creates social disorder, it is legally invalid and obliged to be followed in order to avoid disturbance. As an example, Orthodox view provides for the complete nullity of unconstitutional law. When court declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern (Par. 2, Art. 7 of NCC). Likewise, unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed (Norton v. Shelby).

2.5 International law – Embodies prescriptive rule which govern sovereign states in their relations and conduct with each other 2.6 Rules of etiquette – Custom which embody conventional rules of social behavior 2.7 Positive law/municipal law – (1) Law of the state which is the product of the reason and will of authorities and regulates the transactions and relations between men and their social life; (2) Law that defines their rights, duties, civil liabilities, criminal responsibility and prescribes the remedies for complaining and setting-up defenses. 2.7.1 Law in particular (i.e. rape) – NOT a concern of legal theory 2.7.2 Law as a system of Norms (i.e. criminal law, civil law) – concern of legal theory Arguing About Law: An Introduction to Legal Philosophy Andrew Altman Differentiate Positivism and Natural Law Natural Law Positivism Legal obligation HAS moral Legal force has NO moral force. force Legal obligation is explained Legal obligation’s essential in terms of POWER, ingredients are “moral right COERCION, CONTROL and and wrong” RULES Natural Law – Universally Positive Law – (a.k.a Human valid principles of right and Law [by Aquinas]; rules laid wrong down by state. Overview of Natural Law: Overview of positivism: 1. Thomas Aquinas 1. John Austin “Traditional Version” “Law as a Command” 2. HLA Hart ♥ 2. Lon Fuller “Fidelity” 3. Ronald Dworkin “Law as Primary and “Interpretative” Secondary Rules” What is Natural Law Theory? Natural Law theory provides that there is a relationship between morality and legal rules laid down by the state and there are certain universally valid principles of right and wrong rooted in the nature of things and knowledgeable by human reason. It claims that there is a “higher law” by which goodness law could be determined. 1.

TRADITIONAL VERSION (Thomas Aquinas)

Decisions in hard cases in which the law does not have an a clear answer requires moral judgment Ronald Dworkin The universe is governed by a single, self-consistent & overarching system of law, and the entire system is under the direction and authority of supreme law giver and judge – GOD. According to him, Human law occupies the lower system tier of the system. System of law, according to hierarchy: 1.1 Eternal Law – Principle of action and motion that God implanted in things in order to enable them to perform their function.

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FIDELITY TO LAW / INNER MORALITY OF THE LAW (Lon Fuller)

Moral lesson to obey the law always exists, and any system necessarily abides to certain moral principles; legal laws must be applied prospectively; humans are agent capable of choice. If moral principles are obeyed, there is no other choice but to obey the law. Exception when laws may be applied retrospectively: 2.1 When the law expressly provides 2.2 When the law is curative or remedial 2.3 When the law is procedural (i.e Rules of Court) 2.4 When it is favorable to the accused 3.

INTERPRETATIVE THEORY / IDEA OF FIT (Ronald Dworkin)

Law consists of explicitly adopted rules plus the best moral principle that can be understood to lie behind those rules. What are the 2 aspects of fit? 3.1 Legal Consistency – underlying principles that must be logically consistent with the rules 3.2 Power to help provide a rationale According to Dworkin’s principle, is wiretapping illegal under right to privacy even though it was not specifically mentioned in US 4 th amendment? YES. Wiretapping is illegal under right to privacy even though it was not specifically mentioned in US 4th amendment. There are two aspects of privacy: (1) physical aspect; and (2) informational aspect. Although there is no physical violation of right to privacy, control over personal information that could be used to harm other person is against the law if we will scrutinize it under the MORAL PRINCIPLES. Discuss skepticism Skepticism is the attitude of doubt that what that requires an individual with questioning minds that what the other one is saying is not actually true. The two (2) types of skepticism are: 3.1 External Skepticism – There is no right answer to a moral or legal question 3.2 Internal Skepticism – Law is so riddled that there is no right interpretation of what the law is. What is Legal Positivism? Legal Positivism is an approach in understanding the positive law that rejects the necessary link between positive law and morality. 1.

LAW AS A COMMAND (John Austin)

Laws are laid down by superiors to guide actions of those under them. And since laws are species of command, there are (1) a duty and (2) consequence of non-performance. Page 2 of 3

Is violating a law without a punishment degrades that law? NO. Although there is no punishment for violating “positive morality”, people in general have a low opinion of anyone who does not violate them. Therefore, even though there is no punishment, the law is not degraded.

3 Models to characterize law

Discuss sovereignty in terms of John Austin’s Theory Sovereignty is the supreme and uncontrollable power inherent in a State by which that State is governed. Sovereign is defined solely in terms of power, not in terms of justice or any other moral concept. It is merely a LEGAL and not a MORAL one.

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The existence of law is one thing; Its merit or demerit is another. John Austin

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Coercive model (classical) – John Austin; Bad man’s POV Game model – HLA Hart ♥; Laws are voluntary and not compelled; Determining the rules of the game is one thing, determining if the game is worth playing is another Belief-based model – Hans Kelsen; strongest form of positivism

2 Basic claims of Legal System: 1. 2.

That the context of the law is just; That the sanctions for breaking the law are just, even if the context of the law is not just

Discuss the difference between Medieval and Modern Society. Medieval Society Modern Society Aquinas developed Natural Austin developed positivism Law theory Dominated by a single church Fragmented into completing & single value system creeds & conflicting ideas about justice and goodness. 2.

LAW AS PRIMARY AND SECONDARY RULES (HLA Hart ♥) A person has an obligation when a certain rules applies to them. HLA Hart ♥

Law does not merely ‘command’, but ‘empower’ individuals to do things that would otherwise be impossible to do without laws. Legal rules (i.e Obligations and Contracts) that empower individuals are called ‘power-conferring rules’. When does rules exist? Rules exist when people generally: 2.1 Act in a certain way (External, which involved outward behavior). 2.2 Regard deviations from that way of acting as something to be criticized (Internal, which involves attitude of the people) Legal System is a system that brings together both primary and secondary law. 1. 2.

Primary Rules – rules imposing obligations Secondary Rules – could not exist without primary rules 2.1 Rule that singles out rules that actually imposes obligations 2.2 Rules that specify how legally valid rules be changed 2.3 Rules that empower specific individuals to apply societies’ legally valid rules. Making Sense of Modern Jurisprudence: The Paradox of Positivism & the Challenge for Natural Law Phillip Soper

3 Context of Jurisprudence: 1. The Study of law 2. The Science of law (i.e. analytical jurisprudence – explores the basic meaning of legal concept) 3. The Nature of Law/ Legal Theory/ Maze of Metaphysics (I.e. revolves around the question “what is law” and “positivist v. natural law”) Two dimensions of legal theory: (1) Perspective [Dimension/ Inquiry into the Audience] nature of law Insiders POV – Motivated by citizen, lawyer, application of judge, or other legal norms; legal officers “what is law” Outsiders POV – Sociologist or Disinterested and legal detached; philosopher

(2) Goal of the Study To know about specific details of “what is the case” and “what I ought to do” Knowledge about reality and differences in legal systems

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