PHILOSOPHY OF LAW

READINGS IN LEGAL PHILOSOPHY AND

THEORY
CHAPTER 1INTRODUCTORY CHAPTER
DEFINITION, NATURE AND FUNCTION
Philosophy is taken from the Greek words,
Philos and Logos , which means love of
wisdom.
Philosophy is the study of the universe that
seeks to know the truth andrational
explanation of anything.
Philosophy of Law is that branch of
philosophy which deals with the wisdom of
law. It studies the nature of law with
particular
reference
to
the
origin and end of law, and all the principles t
hat govern itsformulation. It
is part of
practical philosophy. The object of philosophy
of law is the study of law in universal sense,
aslaw can also be studied as to its particular
points in which the object is
Juridical Science or Jurisprudence
.Parts of the system of Juridical Science
are:1.Public Law2.Private LawParts of Public
Law are:1.Constitutional Law2.Administrative
Law3.Penal
Law4.Procedural
Law5.International LawParts of Private Law
are:1.Civil Law2.Commercial Law
3.Those that govern relationships among
individuals
or
juridicalentities. Juridical
Science can only inform the people of the
law
among
certainpeople in a given period, answering o
nly the uestion of what isestablished by law
of a certain system (
quid juris
). Philosophy of law,however, transcends the
competence of each individual juridical
science.It considers the essential elements
which are common to all juridicalsystems
(Kant).According to Giorgio del Vecchio,
Philosophy of Law is the course of study
which defined law in its logical universality,
seeks
its
origins
andgeneral characteristics of its historical de
velopment and evaluates itaccording to the
ideal of justice drawn from pure reason.
FUNCTION OF PHILOSOPHY OF LAW
Philosophy of law is a quest of law which
appeals to reason to obtain justice.One
function of philosophy therefore is to
formulate law that isreasonably acceptable
to the
people to
whom it
is
addressed. Philosophyof law therefore is
opposed to tyranny. The practical function of
philosophy is that it teaches and prepares
forthe positive recognition of the juridical
ideal.
CHAPTER IIHISTORY OF PHILOSOPHY OF LAW
Every branch of knowledge is better
understood by knowing its history.History of
Philosophy is a means of study and research
which
helps

inthe acquisition of regarding knowledge phil

osophies advocated bydifferent philosophers
in the
past. It
is
a study
of
how
philosophersmeditated upon the problems of
law and justice.Philosophy in the past has
been intermingled with Theology, Morals,
andPolitics.
THE PHILOSOPHY OF ANCIENT GREECE
The general history of Legal Philosophy
started with the ancient Greekphilosophers
Socrates, Plato, and Aristotle.In the 15
th
century, the Sophists denied the existence of
absolute justice.Law to them is relative. Plato
in his
Dialogue
disputed the Sophists.
Socrates
(469-399 BC) believed in a higher justice for
the
validity
of which it is necessary that there is a positi
ve sanction or a writtenformulation. Obedien
ce to the law of the state is a duty. Socrates
in this way gave the first indication of the
idealistic philosophical system.
Plato
(427-347 BC), a disciple of Socrates, in his
two dialogues,
The Republic
and
The Laws
, presented the ideal concept of the State as
themost perfect unit. The State dominates
all human activity and mustpromote good in
any form. Justice is achieved through the
harmoniousrelation between the various
parts of the State.
Aristotle
(384-322 BC), a disciple of Plato, in his
Nichomachean Ethics
,said that all supreme good is happiness, the
product of virtue. The Stateregulates the
lives of the citizens by means of laws. The
content of lawsis justice as is applied in
various ways.Kinds of justice according to
Aristotle:1.Distributive justice applied in
giving honors and respects2.Connective and
equalizing or called rectifying justice
applied tovoluntary contractual relationship.
THE ANCIENT ROMAN JURISTS
The Roman excelled the codification of law
but the philosophical basisderived from the
Greeks.
Cicero
said that law is not a product of choice but is
given by nature. There is eternal law which is
an expression of universal reason. Equityand
natural law are factors in an ideal law. The
contribution of the Romans to jurisprudence
is the formulation of codes, putting together
in a systematic form the rules and practices.
THE PHILOSOPHY OF THE MEDIEVAL ERA
THE INFLUENCE OFCHRISTIANITY
Christianity as an advocate of liberty,
equality, and the unity of thehuman family
through divine law became a challenge to

the establishedpolitical order. The influence

of Christianity later became profound upon
politics
and jurisprudence. Modifying
the
Greek
and
Latin
philosophies
that
theindividuals supreme mission is to be a go
od citizen of the State,Christianity said that
the good goal of the individual is not only on
civillife but eternal happiness which can be
obtained through submission tothe Divine
will. The Church asserts itself as an
autonomous authority above the State. The
State is concerned only to earthly things
while the Church, withthose that are eternal.
THE RENAISSANCE
The Renaissance, a rebirth that started in
the 14
th
century, came aboutto overcome the long
period
of
excessive
dogmatism. In
Renaissance,autonomy and freedom of
investigation were awakened. The discovery
of the New World and the invention of printin
g press permitted thepropagation of
new
ideas. The Religious Reformation resulted in
the withdrawal of religious leaders from the
authority
of
the
Church.Accepting Aristotles theory of being
good in political society, law issomething
that
is presented
by reason
not by
revelation. Natural, morallaw world exists
even if there is no God.
CHAPTER III
HISTORICAL SCHOOL
SAVIGNY, OF THE VOCATION OF OUR AGE
FORLEGISLATION AND JURISPRUDENCE
ORIGIN OF POSITIVE LAW
The law will be found to have already
particular faculties and tendenciesof an
individual people, inseparably united in
nature, and only wearingthe semblance
of distinct attributes to our view. That which
binds theminto one whole is the common con
viction of the people, the kindredconsciousne
ss
of
an
inward
necessity.For law, as for language, there is no
moment of absolute rest; it issubject to the
same movement and development as every
other populartendency; and this very
development remains under the same law
of inward necessity, as in its earliest
stages. Law
grows
with
growth,
andstrengthens with the strength of the
people, and finally dies away as thenation
loses
its
nationality.With
progress
of
civilization, national tendencies become
more and moredistinct law perfects its
language, takes a scientific direction, and
asformerly it existed in the consciousness of
the community, it nowdevolves upon the juri
sts, who thus, in this respect, represent thec
ommunity.
LAWS AND LAW BOOKS
Requisites of a
really
good
code:Young
nations, it is true, have the clearest
perception of their law, buttheir codes are
defective in language and logical skill,

and they generallyincapable of expressing

what is best, so that they frequently produce
noindividual image...
COMMENTS BY PATON ON SAVIGNY
In opposition to the pure science of law, the
historical school
consideredlaw in direct relationship to the
life of the community and thus laid
thefoundation
on
which
the
modern
sociological school has built.How did law
came to be? Law evolved, as did language,
by a slowprocess and, and just as language
is a peculiar product of a nations
genius, so is the law. The source of the law is
not
the
command
of thesovereign, not
even the habits of the community, but
the instinctivesense of right possessed by
every race.Such is the approach of the
historical school, and it naturally led to
adistrust of any deliberate attempt to reform
the law. Legislation cansucceed only if it is in
harmony with the internal convictions of the
raceto
which
it
is
addressed. The
contribution of the historical school to the
problem
of
the
boundariesof jurisprudence is that law canno
t be understood without anappreciation
of
the
social
milieu
in
which
it
has
developed. The
slowevolution of law was stressed and its inti
mate connection with theparticular
characteristics of a people.But in Savignys
particular
presentation
there
were
exaggerations
of which
the
historical
method must be freed if it is to play its true
part:1.Some customs are not based on an
instinctive sense of right in thecommunity as
a whole but on the interests of a strong
minority,e,g, slavery.2.While some rules may
devlop almost unconsciously, others are
theresult of conscious effort. Law has been
used to plan the futuredeliberately and not
merely to express and order the results of
pastgrowth.3.The creative work of the
judge and jurist was treated too lightly. The
life of a people may supply the rough
material, but the judgemust hew the block
and make precise the form of law.4.Imitation
plays a greater part than the historical school
wouldadmit.5.Savigny encouraged what Pou
nd has termed as juristicpessimismlegislation must accord with the instinctive
sense
of right
or it
was
doomed
to failure. Hence conscious law reform wasto
be discouraged.
CHAPTER
IVSEMINAL
CONCEPTS
(Philosophical Approach)

priori
without an external Legislation, are called Na
tural Laws. ThoseLaws, again, which are not
obligatory without actual ExternalLegislation,
are called Positive Laws.
Maxims

 The Principle which makes a certain action

a Duty, is aPractical Law. The Rule of
the Agent or Actor, which he forms as
aPrinciple for himself on subjective grounds,
is called his Maxim.
The Categorical Imperative

The
Categorical
Imperative
only
expressesgenerally
what
constitutes Obligation. It may be rendered by
thefollowing formula: Act according to a
Maxim which can be adopted atthe same
time as a Universal Law.
INTRODUCTION
TO
THE
SCIENCE
OF
RIGHTGeneral Definitions and Divisions
A. WHAT THE SCIENCE OF RIGHT IS?
The Science of Right has for its object the
Principles of all the Laws which it is possible
to promulgate by external legislation
B. WHAT IS RIGHT?
All this may remain entirely hidden even
from the practical Jurist untilhe abandon his
empirical principles for a time, and search in
the
pureReason for the sources of such judgment
s, in order to lay a realfoundation for actual
positive
Legislation. The
conception
of
Right:1.External and practical relation of one
Person
to
another,
in so
faras they can have influence upon each oth
er, immediately orimmediately,
by
their
Actions as facts.2.The relation of his free
action to the freedom of action of the
other.3.In this reciprocal relation of voluntary
actions, conception of Rightdoes not take
into consideration the matter the act of Will
in
so
faras the end which any one may have in vie
w in willing it, isconcerned.Right, therefore,
comprehends the whole of the conditions
under whichthe voluntary actions of any one
Person can be harmonized in reality
with the voluntary actions of every other
Person, according to a universalLaw of
Freedom.
C. UNIVERSAL PRINCIPLE OF RIGHT
Every Action is right which in itself, or in the
maxim on which itproceeds, is such thatit
can co-exist along with the Freedom of the
Will of each and all inaction, according to a
universal Law".Or it can be expressed as Act
externally in such manner that the
freeexercise of thy Will may be able to coexist with the Freedom of allothers,
according to universal Law.
D. RIGHT IS CONJOINED WITH THE TITLE OR
AUTHORITY TOCOMPEL
Everything that is wrong is a hindrance of the
freedom,
according
touniversal Laws; and Compulsion or Constra
int of any kind is ahindrance or resistance
made to Freedom.
COMMENTS BY PATON ON KANT
To define law we must distinguish between
form and matter. Form isbeing the complexof
universally valid principles presupposed in
any legal

judgment; Matteris the changing world of soc

ial experience which those principlesconstrue
legally.Rodulf Stammler regards Philosophy o
f Law as the theory of thosepropositions
about
law
which
have
universal
validity.According to Stammler, law belongs
to
the
realm
which
chooses
end
anddetermines Mean; that law is the notion
of
purpose. It
exists to
bindtogether
the community. Since
by definition
law
exists to
harmonize thepurposes
of
individuals,
law
itself
strivestowards
justice. The fundamental basis of law and of
just law are,therefore, the same.Law exists to
coordinate, it can operate only by unifying all
possible actsof men.
These principles of just law are based on the
doctrines
of
respect
and
of participation.Points of Stammlers Theory
on Law:1.Law can exist only if actual society
exists.2.The realm of law and the natural
world
are distinct.3.Most
systems
do assume that
law
is
complete
and
exclusivesystem in itself.
HEGELS THE PHILOSOPHY OF RIGHT
Hegel believed that philosophy possessed a
logic or method of its own,one that was
peculiar to itself, and which constituted
philosophys ownkind of scientific proof. This
was
the
dialectic
method,
which
proceedsthrough
the
development of
concept. It is the process by which from
thefirst member of the triad, say Being, a sec
ond element, Nothing, isdeduced. This
is
possible because Being in its completely
abstract form,devoid of all qualities is,
Nothing. But we are able to at this point
toperceive the presence of the member of
the triad, Becoming. In fact weare forced to
take this step according to Hegel because
unless
we
do
so, we
are asserting
the paradoxical
proposition
that Being
and Nothing arethe same that a thing is
both
is in
and
is
not. We
must
thereforesearch for what Hegel calls the
unity of opposites. In the present case itis
found in Becoming; a thing both is and is not
when it becomes.Rational is actual and
actual
is
rational.So far as jurisprudence is concerned
with the truth is nothing new.Philosphys
problem is to isolate those truths and to
exhibit their logicalnecessity. The laws of
nature are given and their measure is
outside man.Positive law, on the contrary is
posited, it originates with man.We cannot
know the truth through the method of either
intuitionalism
orsubjectivism. Philosophys concern is with t
he rational. This means thatit is an effort to
apprehend the actual.

KARL MARX

Marxs ideas, particularly the prospect of ine

vitable liberation of the working classes from
bondage and oppression through revolutiona
ryaction made a strong impression on
Russian radicals.
LENIN ON MARX
Marxs teaching is complete and harmonious,
providing men with aconsistent view of the
universe, which we cannot be reconciled with
anysuperstition, any defence of bourgeois
oppression. The
three
components
of
Marxism are:1. The philosophy of Marxism is
materialism. Provided the humanity,
1
and especially the working class, with a pow
erful instrument of knowledge.2. Marx
devoted all the greater attention to the study
of economic order,having recognized that it
is
the
foundation
upon
which
the
politicalsuperstructure
is erected,
i.e.
capitalist
society. The
doctrine of surplus
value is the cornerstone of the economic
theory of Marx.
3.
After the overthrow of serfdom, freedom
signified a new system of oppression and
exploitation of toilers. Marx answered this
with thedoctrine of the
class struggle
, to enlighten and organize for thestruggle, fr
om the power capable of sweeping away the
old andestablishing the new.
CHAPTER IXTHE POLICY SCIENCE SCHOOL
LEGAL EDUCATIONAND PUBLIC POLICY:
PROFESSIONAL TRAINING INTHE PUBLIC
INTERESTBy Harold D. Lasswell andMyres S.
Mcdougal
The reform of legal education must become
more ever more urgent in arevolutionary
world of cumulative crises and increasing
violence.
Adequate training must therefore include exp
eriences that aide thedeveloping lawyer to
acquire certain skills of thought:1. Goal
thinking to promote the major value of
democratic
society
andto reduce the number of moral mavericks
who do not sharedemocratic preferences;2.
Trend-thinking this considers the shape of
things to come orienthimself correctly in
contemporary
trends
and
future
probabilities.3. Scientific-thinking

to
build up scientific knowledge.
COMMENTS BY CRISOLITO PASCUAL ON THE
POLICY
SCIENCE
OFSCHOOL
OF
JURISPRUDENCE AND ITS THEORY OF THE
NATUREOF LAW

The goal of the law is the creation of a world

community
conceived
inmutual respect, understanding and rectitud
e, where the differentrepresentative
social
values or desirable objects of human desires
are widely and equitably shared. The law
becomes meaningful only whenconsidered as
the vehicle or machinery to realize the end in
view.
CHAPTER
XNATURAL
LAWST.
THOMAS
AQUINAS, THE SUMMA THEOLOGICA
Law is a rule and measure of acts, whereby
man is induced to act or isrestrained from
acting. The rule and measure of human acts
is the reason. Reason has itspower of moving
from the will.Every act of reason and will in
us is based on that which is according
tonature for every act of reasoning is based
on principles that are knownnaturally. Justice
has its source in nature; thence certain
things came into customby reason of their
utility; afterwards these things which
emanated from
nature and were approved by custom, were s
anctioned by fear andreverence for the law.In
temporal law there is nothing just and lawful,
but what man hasdrawn from the eternal
law.First precept of law: Good is to be done
and ensued, and evil is to beavoided.Any
point deflecting from the law of nature, it is
no longer a law but aperversion of law.
COMMENTS BY JACQUES MARITAIN ON ST.
THOMAS AQUINAS
St. Thomas succeeded in constructing a
philosophical
and
theological wisdom so elevated in immaterial
ity that it is really free of everyparticularizati
on of race or environment. His metaphysical
principles were based upon objective reality.
FOR A REVIVAL OF NATURAL LAW DOCTRINE I
N PHILIPPINEJURISPRUDENCEBy
J0rge
R.
Coquia
There has been a sudden increase of law
schools, but a meager few haveever
attempted seriously what legal philosophy th
ey should stress tostudents. One
of the
causes is the confusion that there have
been manydifferent approaches to what
proper end of law is. There is no denying of
the fact that in each attempt to enunciate a
newphilosophy of law, human experience has
led to insoluble difficulties andto inescapable
inadequacies. The ideological conflicts in our
times haveforced the return to the natural
law way of thinking thus giving truth to what
Gilson once said that the natural law buries
its own undertakers.