Professional Documents
Culture Documents
Legal Philosophy Reports Draft
Legal Philosophy Reports Draft
Whether you see man as by nature evil or good, he still needs laws.
Mans nature is evil thus no social progress could be attained without the restraints of penal laws.
Man is good but due to sin, corruption or some internal weakness, mans original and true nature had become distorted
and thus required for its control the rigors of a primitive system of laws.
Idyllic Primitive Scene- refers to the golden ages where everything was in order no external system of legal rules, life
is simpler.
This served as a pattern for a movement toward a return to nature- going back to mans primitive, unspoiled nature
where there is a happier society in which uncorrupted natural impulse will replace coercive regimes.
Mans Nature is Evil
1. China (legists) argued that mans nature was initially evil and that the good ways in which men often acted were
due to the influence of the social environment, particularly the teaching of rituals and the restraints of penal laws.
2. India (shastra) man are by nature passionate and covetous and that if let to themselves, the world would
resemble a devils workshop where the logic of the fish (means: big ones would eat the little ones) would
reign.
3. Western Europe
a. Bodin original state of man was that of disorder, force, and violence.
b. Hobbes the life of primitive man was a state of perpetual warfare, where individual existence was bruttish,
nasty and short.
c. Hume without law, government and coercion, human society could not be exist and so law is a natural
necessity of man.
d. Machiavelli men are bad and will not observe faith towards you (traitors), you should not trust them.
A. The Golden Age
1. Ovid man dont need laws because it is written in his nature, yet everyone is safe because conscience is their
guard.
2. Seneca in the primitive innocence/state, men lived together in peace and happiness, having all things in
common, there is no private property, no slavery, no coercive government, no corruption, everyone is free and
equal.
This primitive innocence was a result of ignorance rather than virtue
This ignorance is the source of social evils later on. Such social evils necessitated an introduction of regime of law.
Corruption is a product of avarice. A fall of man.
B. Judeo-Christian
Paradise is the equivalent of the primitive innocence
The necessity of human law and coercive state, private property and slavery was derived from mans sinful nature,
which resulted from the Fall.
Law was a natural necessity after the Fall to mitigate the effects of sin.
Consequences of the Fall:
a. Family represented the coercive domination of the male against the freedom and equality of the primitive
paradise.
b. Slavery sin is a fit subject of enslavement.
C. The Theory of Law
1. Agustine
State law and coercion are not themselves sinful but are part of the divine orders as a means of restraining human
vices. Due to sin.
The hope of mankind is not in the sphere of social reform but rather by the attainment of a commonwealth of Gods
elect, a mystical society, which would replace the existing regime dominated by mans sinful nature.
Law is a natural necessity to curb mans sinful nature
2. By 13th Century
There was a change in emphasis due to Aristotelian influences
Mans nature might be corrupt and sinful but he still possessed a natural virtue which is capable of development
(Aristotles natural development of the State from mans social impulses)
3. Aquinas
State is not a necessary evil but a natural foundation in the development of human welfare.
Law is a beneficent force, not only in restraining evil but also for setting him upon the path of social harmony and
welfare.
Law the is not a negative force but a positive instrument for realizing those goals towards which mans good or social
impulses tend to direct him.
D. Man is by Nature Good (Anarchist viewpoint)
The concept of law is based on a wistful primitivism, nostalgia of the primeval past.
1. Plato
Pins his faith in a system of education which will not only produce adequate rulers but will also serve to condition the
rest of the population to the appropriate obedience.
2. Adam Smith
Laissez faire; free play of economic forces which could be assumed to work towards ultimate harmony.
Coercive law may be used to protect private property (an indispensable feature of free market)
3. Godwin
Evils of the society arose not from mans corrupt or sinful nature but from effects of oppressive human institutions.
Man is capable of unlimited progress, only coercive institutions and ignorance stand in the way.
Voluntary cooperation and education would enable all law to be abolished.
4. Bakunin and Kropotkin
State, law, coercion and private property were the enemies of human happiness and welfare.
5. Tolstoy
Man is universally good. There is no need for law.
6. Maude
Remove the law and induce men to believe that no fixed code or judgment should exist; and the only people who will be
able to get on at all decently will those who follow the traditional way of life.
7. Marx
Law is nothing but a coercive system devised to maintain the privileges of the property-owning class.
By the revolution of a classless society would be brought into being, the law and the state would wither away as being
no longer needed to support oppressive regimes.
Looks forward when social harmony will be attuned to the natural goodness of man, unimpeded by such environmental
snares as the institution of private property.
E. Innate Goodness and the price of Civilization
Man at the primitive level is innately or naturally good and that it is the social and political organization of civilized life,
which has introduced violence, and disorder which led to systems of legal coercion.
1. Elliot Smith
Most of the friction and discord of our lives are obviously the result of such exasperations and conflicts as civilization
creates.
The artificial aim, which is the object of envy and malice, is the source of conflict.
2. Herbert Read
The anarchist conceives society as a balance and harmony of groups; the only difficulty is their harmonious interrelation.
Universal decentralization of authority and simplification of life is essential.
Anarchism means a society without arkhos (ruler); it does not mean a society without laws and it does not mean a
society without order.
In the simplest form of society, some system of rules is necessary (ex. Rules on family relationship, food-gathering,
mating etc.)
Such society without rules is not just a society without order but the very negation of society itself.
Law and Freedom
Dennis Lloyd
Man is born free; yet everyone is in chains Rosseu
Man is never isolated and free in this sense but always a part of a community, and the degree of freedom he enjoys or the
extent of the social restraints imposed upon him will depend upon the social organization of which he is a member.
Ideal types of Society: Open and Closed societies
Open
Closed
-a wide field for personal decision and
for the assuming of individual responsibility
-increasing the role of the state in matters
concerning social welfare
ex.:
Democratic society Philippines
Totalitarian Society Soviet Union
Procedural guarantees which have been found necessary to ensure due process of law
The norms operating in less developed societies are referred to as customary law
HABIT: is a course of conduct which we regularly, though not necessarily invariable, pursue but without any sense of
obligation or compulsion to do so.
The vital difference between customs and habits is that those who accept the customs and adhere to them regard
themselves as in some way bound or obliged to observe them.
CONVENTION: certain observance of the society which, while not regarded as fully obligatory, may nevertheless be
regarded as proper modes of behavior which people are expected to carry out. Example: Acknowledging of letters or
of greetings. The special feature of convention is that while particular individuals may feel themselves bound to
observe it, it is not regarded as generally binding.
Customs and conventions are normative in the sense that they establish rules of conduct for compliance, habits do
not refer to or depend on norms, but simply involve regularities of behavior which are in fact observed.
A. Local Custom
Two main ways in which custom may operate as a direct law-making source:
1. Recognition and enforcement of local custom
The purpose is to reduce cases of effective local custom to the barest possible minimum.
2. The custom to be valid, it must be found by the court to be not unreasonable
To ensure that the courts retain a considerable measure of control as to whether a custom is to be
accorded legal validity.
No custom can be regarded as authoritative in itself unless the court has set its judicial seal upon it.
B. Constitutional Custom
Regarded as binding politically and morally, but not in law.
C. Mercantile Custom
Evolved through the operation of commercial contracts.
The current of decisions of courts and of commercial arbitrators is able to absorb the effect of changes in business
customs and practices.
D. Standard-Form Contracts
Type of contract, consisting of a printed form in standardized terms and drawn up by independent or professional
bodies to consolidate or establish the best or fairest practices and rules recognized in the particular field of activity.
Is one of the aims or purposes which man sets himself in order to attain the good life.
A particular good may function either as a means or as an end in itself. For instance we may regard happiness as an
end in itself and liberty as a means of attaining happiness.
II. Platonic Justice
For Plato, the microcosm of the just man is a reflection of the pattern of the just society.
this conception seems to be that every thing or person for Plato thinks justice applies to objects as well as people.
In the same way, only the wise man is fit to rule, so that in a just society he alone will act as ruler.
ARISTOCRATIC IDEA: every person is inherently adapted to some specific function and that if he departs from that
function he is guilty of injustice.
PLATO: potential rulers are to be selected not by birth but by attainments and education before being qualified to rule.
Each man is by nature fitted for one specific job or function and that there is such a job or function adapted to each
persons natural attainments or aptitudes.
ARISTOTLE: some men are slaves by nature, and therefore only fitted for servitude.
III. Formal Justice and Equality
It is indeed the attainment of equality, not the preserving of inequality, that modern moral and legal philosophy treat as
the vital function of justice.
The law should be applied equally in all situations and to all persons to which it relates without fear or favour, to rich
and poor, to powerful and humble alike.
Law should be applied without discrimination.
Justice cannot mean that we are to treat everyone alike regardless of individual differences. (ex. Punishing an insane
person)
Like shall be treated as like, so that everyone who is classified as belonging to the same category, for a particular
purpose, is to be treated in the same way.
THREE RELATED CONCEPTIONS:
1. There shall be rules laying down how people are to be treated in given cases;
2. Such rules shall provide that everyone who qualifies as falling within the scope of the rule shall be governed
by it; and
3. Justice requires that these general rules shall be impartially applied. It should be applied without
discrimination, or fear or favour, to all those whose cases fall within the scope of the rules.
IV. Substantial Justice
A rule can hardly be said to be a rule at all unless it applies generally to whatever persons or situations fall within it. If
the rules are not applied impartially in accordance with their terms then there is really no system of rules at all.
V. Legal Justice
Justice is a much wider conception than law and may apply wherever there is a code of rules, legal or non-legal.
To what extent can it be said that a legal system partakes of the three features of formal justice: existence of rules, their
generality, and their impartial application?
1. It shall contain rules for regulating human behavior and for settling disputes. For the whole purpose of law is
to classify acts and situations, and to provide general rules for dealing with them;
2. Nothing can be qualify as a law unless it possesses the attribute of generality; and
3. Impartiality is generally closely associated with law in the sense that it is regarded as a highly desirable
attribute or aim of any legal system, but the practice, save in the most well-regulated of states, and not
invariably in those, is often very different.
English law developed a separate system of equity administered by a separate court in order to turn aside some of the
harshness of strict law and this institution has spread to all common-law countries.
JUSTICE AND MERCY: the close correspondence between formal justice and law in that both have felt the need for
softening their respective rigours to meet individual cases of hardship.
VI. Legal Injustice
Three types of case in which injustice in relation to law may arise:
1. When the law is, as we have seen, so closely linked in the general opinion of the idea of justice,
that it may itself be, treated as synonymous with justice. Legal injustice then may be done when a
case is decided in a sense contrary to what the law itself lays down. On the other hand, if the court were,
contrary to established law, to decide in favour of the plaintiff, this might be morally just but it would still
amount to legal injustice.
2. When the law is not duly administered in that spirit of impartiality which it requires. For example,
a court finds facts in favour of a powerful litigant, not because it is genuinely persuaded of their truth but
because it wishes to show favour to the powerful either out of fear of the consequences of an adverse
decision or on account of bribery or hope of future benefit. Then legal injustice has been committed.
3. When the law, though perfectly impartially administered according to its tenor is itself unjust if
judged by whatever value system may be applied to test the substantial justice of the legal
rule. According to Hobbes, the only standard of justice is the law itself, so that whatever rule the law lays
down must ipso facto be just.
VII. Law and Substantial Justice
Law needs to possess a just content, and this can only mean that its actual rules must themselves by their provisions
aim at and endeavor to conform to some criteria of rightness which repose on values exterior to justice itself in the
sense that no merely formal idea of justice can dictate to us the basis upon which we are to prefer one set of values to
another
Two principal ways in which a legal system may aspire to attain not merely formal but also substantial justice so far as
this is reflected in the value system:
1. By imparting a certain flexibility in the rules applied by the courts or other organs of legal administration so
as to confer on the judges and other legal officials the possibility of developing the law and adapting it to
the needs of the society in which it operates.
2. By giving the judiciary and other officers of the law, more specific guidance as to the values they should
adhere to in arriving at decisions or expositions of the law or in framing new legislation
Law vs. Morals
Dennis Lloyd
According to Socrates, the overriding moral duty might be to obey the law. There is overlap between law and morals. For both
are concerned to impose certain standards of conduct without which human society would hardly survive and, in many of
these fundamental standards, law and morality reinforce and supplement each other as part of the fabric of social life. This
correspondence of language, although it brings out the interrelation of two spheres, is also dangerous as it tends to trap the
unwary into thinking that law must necessarily connote moral obligation or that moral obligation needs must be translated
into law.
There are differences between legal rules and moral rules.
LAW
MORALS
- A set of rules and principles created and- a set of beliefs, values principles and standards of
enforced by the state.
behavior created by society.
- Created by formal intuition e.g. parliament.
- No formal creation exists.
- Laws can be instantly made and
- Form slowly and change slowly as societys
instantly cancelled.
attitudes change
- Its existence can be established
- Much vaguer in definition
(ex. Civil Status)
(ex. Homosexuality)
- Breach of law leads to some form of
- Breach of morals leads to some form of social
punishment or remedy enforced by the state. condemnation but the state is not involved.
- Societys attitude to law is irrelevant.
- Morals are rules that reflect societys values and
beliefs.
What Makes a Law Law?
Dennis Lloyd
It is the application of the law to reality. Not only enactment of the law but also its enforcement.
The law has to be codified.
Austin: Laws are commands of a sovereign.
The concept of positive law (man-made law):
Commands involve an expressed wish that something be done, combined with a willingness and ability to impose an evil if that
wish is not complied with.
Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (drink wine
today or John Major must drink wine).
Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God's
The sovereign is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the
population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political
societies, by their nature, have a sovereign.
Introduction
Every branch of knowledge is better understood by knowing its history. In a historical perspective is usually preceded by
the teleological school of jurisprudence but a historical approach we would be able to study the nature of the law. It is said
human beings have lived together as groups however there are some inevitable conflicts that needs to be resolved hence the
creation of law that would promote harmony. In a historical perspective we would usually encounter Fredrich Karl von Savigny
that says that law proceeds from volkgeist (concept of the soul and spirit of the people which provides the sense of beginning
and unfolding of the law.) We would also encounter the renaissance of the natural law theory.
History (from Greek - historia, meaning "inquiry, knowledge acquired by investigation") is an umbrella term
that relates to past events as well as the discovery, collection, organization, and presentation of information about these
events. Wikipedia
"Since history has no properly scientific value, its only purpose is educative. And if historians neglect to educate the public, if they fail to
interest it intelligently in the past, then all their historical learning is valueless except in so far as it educates themselves." G. M.
Trevelyan. Indeed, it is true. We can never change anything in the past (be it regretful or fulfilling). The only thing we can do is learn
from it and make the future better than what we have experienced. "History is for human self-knowledge. Knowing yourself means
knowing, first, what it is to be a person; secondly, knowing what it is to be the kind of person you are; and thirdly, knowing what it is to be
the person you are and nobody else is. Knowing yourself means knowing what you can do; and since nobody knows what they can do
until they try, the only clue to what man can do is what man has done. The value of history, then, is that it teaches us what man has done
and thus what man is." R. G. Collingwood
What is History? It is a unique opportunity of recording, in the way most useful to the greatest number, the fullness of
the knowledge which the nineteenth century is about to bequeath.... By the judicious division of labour we should be able to
do it, and to bring home to every man the last document, and the ripest conclusions of international research. Ultimate history
we cannot have in this generation; but we can dispose of conventional history, and show the point we have reached on the
road from one to the other, now that all information is within reach, and every problem has become capable of solution. (Acton
Historians of a later generation do not look forward to any such prospect. They expect their work to be superseded
again and again. They consider that knowledge of the past has come down through one or more human minds, has been
'processed' by them, and therefore cannot consist of elemental and impersonal atoms which nothing can alter....The
exploration seems to be endless, and some impatient scholars take refuge in scepticism, or at least in the doctrine that, since
all historical judgements involve persons and points of view, one is as good as another and there is no 'objective' historical
truth. (Professor Sir George Clark, in his general introduction to the second Cambridge Modern History;almost 60 years after
Actons report)
The clash between Acton and Sir George Clark is a reflection of the change in our total outlook on society over the interval
between these two pronouncements. Acton speaks out of the positive belief, the clear-eyed self-confidence, of the later
Victorian age; Sir George Clark echoes the bewilderment sad distracted scepticism of the beat generation. When we attempt
to answer the question 'What is history? our answer, consciously or unconsciously, reflects our own position in time, and
forms part of our answer to the broader question what view we take of the society in which we live.
No wonder why Acton was a positivist; he lived in the nineteenth century where it was a great age for facts. As a
positivist, he belonged to the group, which is anxious to stake out their claim for history as a science, contributed the weight
of their influence to this cult of facts. Facts, like sense-impressions, impinge on the observer from outside and are
independent of his consciousness. The process of reception is passive: having received the data, he then acts on them.
What is the criterion which distinguishes the facts of history from other facts about the past?
According to the common-sense view, there are certain basic facts which are the same for all historians and which form, so to
speak, the backbone of history - the fact, for example, that the Battle of Hastings was fought in 1066 boils down to two
observations:
a) Common element; virtual facts. 'Accuracy is a duty, not a virtue'." To praise a historian for his accuracy is like praising
an architect for using well-seasoned timber or properly mixed concrete in his building. It is a necessary condition of his
work, but not his essential function. It is precisely for matters of this kind that the historian is entitled to rely on what
have been called the 'auxiliary sciences' of history archaeology, epigraphy, numismatics, chronology, and so forth.
b) A priori decision. The facts, speak only when the historian calls on them: it is he who decides to which facts to give the
door, and in what order or context. A fact is like a sack - it won't stand up till you've put something in it.
Ex: At Stalybridge Wakes in 1850, a vendor of gingerbread, as the result of some petty dispute, was deliberately kicked
to death by an angry mob. Is this a fact of history? No.
As Bury, who had worked in both periods (ancient and medieval history), said, 'the records of ancient and medieval
history are starred with lacunae.' History has been called an enormous jig-saw with a lot of missing parts. But the main trouble
does not consist in the lacunae. Our picture of Greece in the fifth century B.C. is defective not primarily because so many of
the bits have been accidentally lost, but because it is, by and large, the picture formed by a tiny group of people in the city of
Athens. We know a lot about what fifth-century Greece looked like to an Athenian citizen; but hardly anything about what it
looked like to a Spartan, a Corinthian, or a Theban - not to mention a Persian, or a slave or other non-citizen resident in
Athens. Our picture has been preselected and predetermined for us, not so much by accident as by people who were
consciously or unconsciously imbued with a particular view and thought the facts which supported that view worth preserving.
The history we read writes Professor Barraclough, himself trained as a medievalist, though based on facts, is, strictly
speaking, not factual at all, but a series of accepted judgments."
The nineteenth-century fetishism of facts was completed and justified by a fetishism of documents. The documents were the
Art of the Covenant in the temple of facts. The reverent historian approached them with bowed head and spoke of them in
awed tones... No document can tell us more than what the author of the document thought - what he thought had happened,
what he thought ought to happen or would happen, or perhaps only what he wanted others to think he thought, or even only
what he himself thought he thought. None of this means anything until the historian has got to work on it and deciphered it.
The facts, whether found in documents or not, have still to be processed by the historian before he can make any use of them:
the use he makes of them is, if I may put it that way, the processing process.
Ranke piously believed that divine providence would take care of the meaning of history, if he took care of the facts.
Professor Butterfield noted with apparent satisfaction that 'historians have reflected little upon the nature of things,
and even the nature of their own subject'.
Dr A. L. Rowse, more justly critical, wrote of Sir Winston Churchill's World Crisis - his book about the First World War that, while it matched Trotsky's History of the Russian Revolution in personality, vividness, and vitality, it was inferior in
one respect: it had 'no philosophy of history behind it'. British historians refused to be drawn, not because they believed
that history had no meaning, but because they believed that its meaning was implicit and self-evident.
All history is 'contemporary history', declared Croce,' meaning that history consists essentially in seeing the past
through the eyes of the present and in the light of its problems, and that the main work of the historian is not to record,
but to evaluate; for, if he does not evaluate, how can he know what is worth recording?
Carl Becker, argued in deliberately provocative language that 'the facts of history do not exist for any historian till he
creates them'.
The views of Collingwood can be summarized as follows. The philosophy of history is concerned neither with 'the past
by itself' nor with 'the historian's thought about it by itself', but with 'the two things in their mutual relations'. (This
dictum reflects the two current meanings of the word 'history' - the inquiry conducted by the historian and the series of
past events into which he inquires.) 'The past which a historian studies is not a dead past, but a past which in some
sense is still living in the present.' But a past act is dead, i.e. meaningless to the historian, unless he can understand the
thought that lay behind it. Hence 'all history is the history of thought', and 'history is the re-enactment in the historian's
mind of the thought whose history he is studying'.
' History', says Professor Oakeshott, who on this point stands near to Collingwood, is the historian's experience. It is
"made by nobody save the historian: to write history is the only way of making it.
Neglected Truths
The facts of history never come to us 'pure', since they do not and cannot exist in a pure form: they are always refracted
through the mind of the recorder. For if, as Collingwood says, the historian must re-enact in thought what has gone on in
the mind of his dramatis personae, so the reader in his turn must re-enact what goes on in the mind of the historian.
Study the historian before you begin to study the facts. History means interpretation. Indeed, if, standing Sir George
Clark on his head, I were to call history 'a hard core of interpretation surrounded by a pulp of disputable facts'
The historian's need of imaginative understanding for the minds of the people with whom he is dealing, for the thought
behind their acts: I say imaginative understanding, not sympathy, lest sympathy should be supposed to imply
agreement. History cannot be written unless the historian can achieve some kind of contact with the mind of those
about whom he is writing.
The third point is that we can view the past, and achieve our understanding of the past, only through the eyes of the
present. The historian is of his own age, and is bound to it by the conditions of human existence. The historian belongs
not to the past but to the present. Professor Trevor-Roper tells us that the historian 'ought to love the past'. This is a
dubious injunction. To love the past may easily be an expression of the nostalgic romanticism of old men and old
societies, a symptom of loss of faith and interest in the present or future.
The function of the historian is neither to love the past nor to emancipate himself from the past, but to master and
understand it as the key to the understanding of the present.
Collingwood seems indeed, at one moment, in an unpublished note quoted by his editor, to have reached this conclusion:
St Augustine looked at history from the point of view of the early Christian; Tillamont, from that of a seventeenthcentury Frenchman; Gibbon, from that of an eighteenth-century Englishman; Mommsen from that of a nineteenthcentury German. There is no point in asking which was the right point of view. Each was the only one possible for the
man who adopted it.
The duty of the historian to respect his facts is not exhausted by the obligation to see that his facts are accurate. He
must seek to bring into the picture all known or knowable facts relevant, in one sense or another, to the theme on which he is
engaged and to the interpretation proposed. If he seeks to depict the Victorian Englishman as a moral and rational being, he
must not forget what happened at Starybridge Wakes in 1850. But this, in turn, does not mean that he can eliminate
interpretation, which is the life-blood of history.
The historian is neither the humble slave nor the tyrannical master of Ids facts. The relation between the historian and his
facts is one of equality, of give-and-take.
The historian and the facts of history are necessary to one another. The historian without his facts is rootless and futile; the
facts without their historian are dead and meaningless.
What is history? Is a continuous process of interaction between the historian and his facts, an unending dialogue between
the present and the past. E.H. Carr
What is constitutionalism?
Constitutionalism is the idea, often associated with the political theories of John Locke and the founders of the American
republic, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its
observing these limitations.
Giovanni Sartori defines liberal constitutionalism as constituting the following elements: (1) there is a higher law, either
written or unwritten, called constitution; (2) there is judicial review; (3) there is an independent judiciary comprised of
independent judges dedicated to legal reasoning; (4) possibly, there is due process of law; and, most basically, (5) there is a
binding procedure establishing the method of law-making which remains an effective brake on the bare-will conception of law
(Sartori, 1987, p. 309). Sartori's definition emphasizes the "rule of law" side of liberal constitutionalism.
Men and women have been asking themselves as earnestly and as anxiously as they are asking now, the old question, so
often asked before, whether historians have anything practical to offer to our country and to the world in times of crisis and if
they have, how can they make particular contribution most effectively.
The writing of history, they tell us, is only an "act of faith." This intellectual weariness is no new thing in the world. The
historians is after all faced with the brutal fact that some things did actually happen in the past and that some record of these
happenings sometimes survives. And if these happened, they had definite historical causes and results of which we often have
some account remaining, even if incomplete. Plato spent his life in combating this among the Sophists. The Behaviourists
would believe that blind animal instinct along determines human destiny, and fervid nationalists are setting up the menace of
a particular tribal culture against the historical verdicts of universal human reason. As Gorgias said in the Socratic dialogue,
even if there were an objective truth, we could never recognize it. History is a vain quest. Some "lessons of history we know
will always be drawn, some "lessons of history" will always be acted on. Our part is to see that these really are the lessons of
history.
The late Professor Tout said in the opening part of his great work on English medieval administrative institutions that "we
investigate the past, not to deduce practical political lessons but to find out what really happened." There are more than hints
in certain parts of the world that all past history must be rewritten for a present purpose.
Contemporary problems
The most serious defects in the existing histories of past institutions--the kind of histories with which McIlwain is most
familiar--lie, not in any undue suppression of modern modes of thought and action, but rather in their untimely intrusion. Thus
the chief advances made in the recent study of these institutional developments have come from a recognition of such
defects.
Sir Edward Coke once laid down for law: contemporanea expositio fortissima est. (Contemporaneous exposition is the
best and most powerful in the law.)
Infractions of this rule naturally come oftener in some kinds of history than in others and are far more frequent for
certain periods. For contemporary or recent history the danger is slight, for there familiarity with present-day conditions
forms the necessary basis of all accurate historical judgments; and even in ancient history the faults are likely to be of a
very different kind. It is the stage of growth immediately behind us, in which were laid the foundations on which the
social and political fabric still stands.
Maitland says that, "We shall have to think away distinctions which seem to us as clear as the sunshine; we must think
ourselves back into a twilight. This we must do, not in a haphazard fashion, but of set purpose, knowing what we are
doing."
Actual changes like this in peoples attitude toward particular historical problems have, however, not as a rule come
about wholesale, or from any "set purpose". They have usually come piecemeal because someone has been steeping
himself in the thought and motives of some past epoch by extensive and careful reading of the records or writings of the
time, and one day wakes up to find--usually to his utter amazement--that this thought or these motives and institutions
are not at all the ones he has been reading about all these years in the standard modern books. Perhaps, fundamental
change in the language must be the index of much more . These may be only terms of law, but they touch life in all its
phases.
These made McIlwain realized that men like Lambarde or Fitzherbert in Elizabeth's time, when they spoke of parliament, were
thinking of something in many ways different from what he had learned. It is a little shocking to find the actual makers or the
contemporary recorders of the past saying or doing or thinking something entirely different from the thing we have always
had in mind, or, what is worse, have even been teaching to others as history. On the contrary, nine times out of ten it is just
because these notions are too modern that the historian finally discovers that they do not fit the actual facts, that they furnish
no explanation at all, or an obviously inadequate or even a distorted explanation of past movements and actions.
Writ of Henry I
It is another important institution of the same period furnishing a similar illustration of the change in historical treatment is the
county court and the membership of that court under the Norman kings. Even Bishop Stubbs seemed to regard attendance at
the court as a privilege or honor so much cherished in twelfth century England that King Henry I found it necessary in a writ
which still survives to restore the frequency and regularity of its meetings after a period of interruption. Attendance at these
courts was no honor that members prized or communities sought for. The well-known writ of Henry I for holding the county
and hundred courts, it is thought, is not then, as Stubbs and his predecessors assumed, an order for the holding of these
courts oftener than before; it is a command that they should meet less often. The amount of suit at court shall not be
increased for the local communities; as the contemporary author of the so-called Laws of Henry I puts it, they are not "to be
worried further by any wearisome burdens" (nec ullis ultra fatigationibus agitari). The grievance redressed here is not too little
representation, but too much. This has diverged pretty far from Freeman's conception of a great national assembly at whose
meetings "the whole people had an acknowledged right to attend". What was formerly considered a national privilege turns to
be only a feudal burden.
Trial by peers
The right of a person to be tried by a jury of one's peers is traditionally founded on a provision contained in Chapter 39
of that great document of English law, the Magna Carta. That provision, states: "No freeman shall be taken or
imprisoned, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor (condemn him),
but by lawful judgment of his own peers, or by the law of the land."
In 1853 Sir Edward Creasy described the Great Charter of King John as "a solemn instrument deliberately agreed on by the
King, the prelates, the great barons, the gentry, the burghers, the yeomanry, and all the freemen of the realm". Of the famous
words of its thirty-ninth chapter, "except by the lawful judgment of his peers, or by the law of the land", he said, "I believe that
the trial by peers here spoken of means trial by jury.
"As historians, our real task is with history, not with its application; but when troubles come upon us, the question will
always emerge--it will not down--whether it belongs to the historian, even if not strictly as a historian, to find in all these
facts and developments, assuming them to be accurate, any lessons of value that may be practically useful. I sincerely
believe that it does; but like that other "earnest desirer of his countrie's peace" already referred to, if I tried to urge
any such lessons for our present troubles, I should be "telling my medicine" only as a bystander, and not as a physician.
If there are any practical inferences to be drawn from this jumbled survey, therefore, I leave them for you to draw."
-C.H. McIlwain.
In the book The Philippines: A past revisited written by a famous leftist historian of the Philippines Renato Constantino
with some insights of legal philosophy of Crisolito Pascual may show us in a historical perspective the development of law by
giving us a window to past.
Volkgeist(kautusan ng sambayanan) Gave rise to the Oblutiacs (opinions, beliefs, longings, usages, traditions,
idiosyncrasies, arts, customs and superstitions) which gave common consciousness and intelligence to the people. Having
aware of the Volkgeist the folksoul gave life to the law since it greatly deals with moral suasion. Undoubtedly before the
establishment of legal order Folksoul governed the conduct of the people.
Spanish Era
This folk soul may have provided a conduct to of people but in some history suggest that the early Philippines practice
where kings/datus are also the law. Moving ahead to when Ferdinand Magellan discovered the Philippines and then we were
colonized by Spain where we were a little bit civilized and legal order was really established however the laws formed to
oppressed the Filipinos and favor the Spaniards as if we could only achieve the status of peasants. Some accounts would even
state Spaniards taught us Christianity to keep us under fear. After having a revolutionary consciousness the local elite moved
and contributed to the Philippine Revolution in 1896.The denial of basic political and civil rights became the principal subjects
of the ilustrados.
American Era
After the Spanish era there came the establishment of the first Philippine Republic. In the treaty of Paris Spain gave
America the control over the Philippines which was not recognized by the Philippine Republic hence declaring war against the
Americans. In the American occupation, those elite or ilustrados who helped in the movement in the Spanish war was anxious
to protect their own economic position and adopted capitulationism and had collaborative attitude toward the new colonizers.
The ilustrados went over to the American side and gave the an helping and in the propaganda to slander the mass movement
and justify to the military intervention by massive campaign of acculturation, miseducation and implantation of American
political institutions and customs in the evolving colonial society. The result of the propaganda was success where it created a
people with a national identity but with a steadily eroded sense of national consciousness.
Early American administrators initiated the idea of political self-rule as colonial which was accepted by the ilustrados
since the want participation in the government. (If Spain had accommodated the idea of government participation in the
government the ilustrados would have sided with Spain). The success of American colonialism allowed the Americans to
establish a colonial economy suited to their requirements with minimal objection from Filipinos who had a little understanding
of imperialism.
Public school system and English language was implemented. This made a new generation of leaders to succeed the
ilustrado collaborationist. Philippine politics became a colonial version of American ward politics and featured a perpetual
scramble for position and patronage. The subtle approach of the Americans made Filipinos forget the brutalities of American
campaigns and suppression. Whenever violence erupted, the peasants were confronted either by the landlords, private
armies, the provincial police or the Constabulary which were all Filipinos.
Chaos arise in the world war two when Hitler successive annexations of countries such as AUstia, Italy and Poland. It
spread war all over Europe. The Filipinos saw the world events through the American eyes and responded as American
colonies. Anti dependence from America arose since it was being too comfortable under the wings of the United state. Filipinos
gave too much confidence in the power of the US which gave them a false sense of Security.
Japanese Era
Since Filipinos were so convinced with the invincibility of America they did not seriously considered the possibility of
Japanese occupation. Some even thought that Japan would not be foolish enough to seize Philippines since it was afraid of the
power of the US however many were shocked. Japanese belligerents also tried to win the hearts of the Filipinos the same way
Americans did however they were not that effective. Their theme was Asians should unite to drive the white man from Asia
and proper under the leadership of Japan. Filipinos become so westernized that they even consider themselves as superior to
the Japanese. However despite the belligerent occupation, Filipinos still look up to USs invincibility in a symbol of a man
named General Douglas Mac Arthur even though Japans invasion rudely shattered the Filipinos safe colonial world.
Douglas Mac Arthur was a symbol of hope for the Filipinos that US would still save them. In fact his return vitally affected
the nation. In the facts of history, although the war power of the US is really strong, the US military tactic was not to defend
the Philippines. There was an agreement called Taft-Katsura and Root-Takahira agreement the in exchange of Korea and
Southern Manchuria Japan must recognize American Supremacy over the Philippines. The contingency plans for a war
between the US and Japan under codename War Plan Orange was to show the US gave a fight nonetheless they view the
Philippine Island is not worth defending. The official policy of no improvements, no reinforcements and no withdrawal meant
that US would maintain military presence but would not spend on more and that US would abandon after a brief pro forma
resistance. Mac Arthur knew of this policy.
D. MacArthur although viewed as a demi god of the Filipinos as a hope for the Philippines had some ambitions out of his
own interest. Mac Arthur was honest enough to confess that although America taught the Philippines to be independent,
education, sanitation and so much more, they did not prepare the Philippines to defend itself against a foreign foe. Mac Arthur
wanted to be a Military adviser of the Philippines and the high commissioner at the same time which he also suggested to
Roosevelt to act a special legislation to make it possible without resigning the other position but despite Roosevelts effort it
failed.
In being a military adviser which Mac Arthur chose the title Field Marshal demanded that he be paid $18,000 per annum
plus another $15,000 as yearly allowance in addition to his military pay. He also got the penthouse of Manila Hotel to be a
sumptuous air-conditioned quarters for his use. His income was reported to make a profitable investment in mining stocks.
Mac Arthur was said have authored the National Defence Act which required all Filipino boys of age of twenty to serve for five
and a half months and undergo military training and serve the Philippines Army. Mac Arthurs defence plan was to defend the
entire archipelago. The defence plan was reported to be a success but it was only a morale booster, US war department even
refuse to send some surplus and obsolete weapons and equipment. In the real picture it was a flop due to lack of materials
and experience.
Philippine Constitution
The Constitution states the rules and principles which serve as the fundamental law of the land. It has been rewritten
several times. The political evolution and every significant event in the Philippine history resulted a change in the constitution.
The first was at Biak na Bato in 1897 where its objectives was to revolt against the Spaniards. The second one is the Malolos
Constitution where a new government was set up as Philippine Republic. However the first two were not enforced the first
Constitution was by the virtue of Tyding-Mc Duffie Law in 1934 during the Commonwealth period. Next is the 1943
Constitution for the Japanization. Another revision in 1946. The 1973 Constitution in where Marcos abolished the Congress.
Finally the 1987 Constitution or freedom constitution.
History is a continuous process of interaction between the historian and his facts, an unending dialogue between the
present and the past. (Carr, 1917) The facts speak for themselves and facts layout directly should be written however such
writing is not enough. History must be written with imaginative understanding looking into it from the eye of the present.
Law is actually a compilation of experience that relates to human life. It is essential to human to resolve conflicts but as
a natural moral being that springs from the fountain of good conscience. Folk soul or folk minds are the set of conducts that
the people followed based on human experience which became a source of law. Some old folk saying are still present in our
laws today like. Even though folk soul is the first source of law, some folk souls were abolished as being inconsistent with the
law.
In the Philippines where we were colonized by Spaniards, Western civilization, and a Strong Asian country no doubt the
Philippines has suffered from identity crisis. Almost three centuries by Spain where we adapt the civil law and Christianity
which is now inherent to our lives. This was somehow changed during the American occupation for four decades through a
subtle approach which was effective and visible until now. In a short Japanese regime which we were to believe that was only
a belligerent occupation did not contribute much but rather viewed as a nightmare. Despite this, Philippines in the present
time had mature. Philippines had a sense of nationalism. Through the changing constitution up to the present laws, shows that
the Filipino people is building a just and humane society.
Historical as perspective as a whole is considered as historical school of jurisprudence that arise from oblutiacs of the
people that developed with the drive of their cultural identity either by creating, improving or discarding concepts and rules.
Historical perspective of the nature of the law is also valuable to legislative, since from there they can draw the volkgeist. It is
viewed as Savigny as the approach to the problematic issues of legal ordering avoids uncertainty and accident in the
development and application of law. If we would read thoroughly to the law today, with or without modifications some
historical doctrine of the nature of the law as the life and spirit of the people is valuable and practicable in the legal ordering
society. (Pascual, 1972)
Building on the past, excelling in the present, providing for the future
Sources:
Pascual, Crisolito, LL. M. (1972) Introduction to Legal Philosoph, Quezon City: UP Law Center
BACKGROUND MATERIAL
1. The Tripoli Agreement
Signed on December 23, 1976, in Tripoli, Libya, the agreement was between representatives of the Government of
the Philippines and the representatives of the Moro National Liberation Front.
2. Final Peace Agreement with the MNLF
Signed on September 2, 1996, in Manila, Philippines the agreement effectively ended the Moro National Liberation
Front rebellion against the Philippine government.
3. Memorandum of Agreement Ancestral Domain, Bangsamoro Juridical Entity
Initially signed on July 27, 2008, it was scheduled to be formally signed on August 5, 2008. However, it was
stopped by the Supreme Court on August 4, 2008 by virtue of a temporary retraining order. On October 14, 2008, The
Supreme Court declared it to be unconstitutional as it is contrary to law and the Constitution.
SCOPE OF TERRITORY
Below is the proposed of territory of Bangsamoro. It is composed of:the present geographical area of ARMM, many
municipalities like Baloi, Munai and Nunungan, Pantar, Tagoloan and Tangkal in Lanao del Norte along with the cities of
Cotabato and Isabela and and such other areas wanting to be included, provided that these areas undergo a certain process.
The Framework Agreement states: The core territory of the Bangsamoro shall be composed of: (a) the present geographical
area of the ARMM;
(b) the Municipalities of Baloi, Munai, Nunugan, Pantar, Tagoloan and Tangkal in the province of Lanao del Norte and all other
barangays in the Municipalities of Kabacan, Carmen, Aleosan, Pigkawayan, Pikit, and Midsayap that voted for inclusion in the
ARMM during the 2001 plebiscite;
(c) the cities of Cotabato and Isabela; and
(d) all other contiguous areas where there is a resolution of the local government unit or a petition of at least ten percent
(10%) of the qualified voters in the area asking for their inclusion at least two months prior to the conduct of the ratification of
the Bangsamoro Basic Law and the process of delimitation of the Bangsamoro.
**How is this different from the MOA-AD?
First, this framework agreement does not commit the government to constitutional change.
Second, the agreement has been done in full transparency, as noted by its publication online prior to its signing.
Third, there is no mention of ancestral domain in the document.
Fourth, while the MOA-AD [2008] was written in such a way that the government could have acted without a plebiscite.
This Framework Agreement [2012] is very clear in requiring a democratic mandate. First, the organic law, to be written by the
Transition Committee, must be passed by Congress. Then the communities involved must approve it by plebiscite. Assuming
the law is passed and the plebiscite is approved, then the MILF must seek an elected mandate from the people.
**Do we need to Revise the Constitution?
The framework agreement does not commit any of the parties to work for charter change. The major political commitments
that were made in the Framework Agreement can be achieved within the flexibilities of the existing constitution. Nevertheless,
Article 17 of the Constitution allows any citizen to recommend ideas to amend the constitution through proper legal processes.
**How do you have a parliamentary government under a presidential government?
There is nothing in the Constitution which prohibits an autonomous area from having a ministerial form of government. The
Constitution also states that whatever government is in the autonomous region, it shall always be under the supervision of the
President.
SOCRATES
Socrates (470-399) was the son of a sculptor and a midwife, and served with distinction in the Athenian army during Athens
clash with Sparta. He married, but had a tendency to fall in love with handsome young men, in particular a young soldier
named Alcibiades. He was, by all accounts, short and stout, not given to good grooming, and a lover of wine and
conversation. His famous student, Plato, called him the wisest, and justest, and best of all men whom I have ever known
founded philosophy
The Socratic method is dialectical and inductive: universals are derived from particulars by noting differences in
identities and identities in differences
He said that he did not teach, but rather served, like his mother. He made use of questions and answers to remind his
students of knowledge is called maieutics (midwifery), dialectics, or the Socratic method.
Socrates' Philosophy
Socrates asserted that an individual must know himself in order to be wise.
A life that has not been examined is not worth living.
Euthyphro (dialogue by Plato) -Socrates suggests that what is to be considered a good act is not good because gods say it is,
but is good because it is useful to us in our efforts to be better and happier people. This means that ethics is no longer a
matter of surveying the gods or scripture for what is good or bad, but rather thinking about life. He even placed individual
conscience above the law
Apology: The Examined Life
Because of his political associations with an earlier regime, the Athenian democracy put Socrates on trial, charging him with undermining
state religion and corrupting young people. The speech he offered in his own defense, as reported in Plato's (Apology),
provides us with many reminders of the central features of Socrates's approach to philosophy and its relation to practical life.
Ironic Modesty:
Explaining his mission as a philosopher, Socrates reports an oracular message telling him that "No one is wiser than
you." In each case, however, Socrates concludes that he has a kind of wisdom that each of them lacks: namely, an open
awareness of his own ignorance.
Questioning Habit:
The goal of Socratic interrogation, then, is to help individuals to achieve genuine self-knowledge, even if it often turns
out to be negative in character.
Devotion to Truth:
Even after he has been convicted by the jury, Socrates declines to abandon his pursuit of the truth in all matters.
Refusing to accept exile from Athens or a commitment to silence as his penalty, he maintains that public discussion of
the great issues of life and virtue is a necessary part of any valuable human life. "The unexamined life is not worth
living."
Dispassionate Reason:
Even when the jury has sentenced him to death, Socrates calmly delivers his final public words, a speculation about
what the future holds. Disclaiming any certainty about the fate of a human being after death, he nevertheless expresses
a continued confidence in the power of reason, which he has exhibited (while the jury has not). Who really wins will
remain unclear.
Socrates' argument proceeds from the statement of a perfectly general moral principle to its application in his particular case:
One ought never to do wrong (even in response to the evil committed by another).
But it is always wrong to disobey the state.
Hence, one ought never to disobey the state
First, the state is to us as a parent is to a child, and since it is always wrong for a child to disobey a parent, it follows that it is
always wrong to disobey the state.
The second argument is that it is always wrong to break an agreement, and since continuing to live voluntarily in a state
constitutes an agreement to obey it, it is wrong to disobey that state.
Socrates himself never wrote any of his ideas down, but rather engaged his students -- wealthy young men of Athens -- in endless
conversations. In exchange for his teaching, they in turn made sure that he was taken care of.
Plato reconstructed these discussions in a great set of writings known as the Dialogs.
PLATO
Plato was a student and follower of Socrates until 399, when the condemned Socrates died after drinking the prescribed cup
of hemlock. It is through Plato that we are most familiar with Socrates' philosophy because he wrote dialogues in which his
teacher took part, usually asking leading questions -- the Socratic method.
When he was about twenty, he came under Socrates spell and decided to devote himself to philosophy. Devastated by
Socrates death, he wandered around Greece and the Mediterranean and was taken by pirates. His friends raised money to
ransom him from slavery, but when he was released without it, they bought him a small property called Academus to start a
school -- the Academy, founded in 386
Plato emphasized two planes:
1. ideal (noumena)
2. real (phenomena)
NOUMENA and PHENOMENA
A term used by Plato to distinguish one side of the divided plane. On one side is the noumena where all is spirit.
On the other side is the phenomena where all is material
That which cannot be detected by the five senses)
innate knowledge
learning is recalling what was known perfectly in the noumena before birth
greatly influenced Western philosophy
With Democritus, Plato starts from Protagoras's perception theory of knowledge.
Reason and insight discover in perceptual phenomena the universals, i.e., the Ideas, or intelligible forms of reality
(rationalism and intuitionism).
Knowledge develops through three stages, corresponding to the relative development of the three levels of the soul:
1. doxa (opinion or mere belief deriving directly from senses)
2. dianoia (rational or discursive understanding)
3. noesis (direct intuition of the Ideas)
Knowledge has as its object what really is, i.e., being, essence (ousia), the Ideas or the Forms; and virtue.
"Virtue is to be gained only through right knowledge and knowledge is cognition of true Being."
Plato added the agent or creator (God) who forms the world according to the Ideas.
THE STATE (by Plato)
The state exists in order to serve the wants of men. Men are not independent of one another, but need the aid and
cooperation of others in the production of the necessaries of life. Hence, they gather associates and helpers into one dwelling
place and give this joint dwelling the name city. The original end of the city is an economic end and this follows the principle
of the division and specialization of labour.
The agricultural labourer will not produce his own plough or mattock, but they will be produced for him by others, by those
who specialize in the production of such instruments. (State will require weavers, shoemakers, carpenters, smiths, shepherds,
etc.)
If there is to be a luxurious city, something more will be required and musicians, poets, tutors, nurses, barbers, cooks, etc. will
politicians really do not know their business, when the fancy takes the people they get rid of the politicians in the office
and carry on as though no special knowledge is required for the right guidance of the ship of State.] The man who has
real knowledge of the course should take it because it can help it to weather the storms and difficulties. Thus, Those
who are to be chosen as rulers should be educated.
REPUBLIC:
Plato said that the perfect state is the aristocratic State; but when the 2 higher classes combine to divide the property of other
citizens and reduce them practically to slavery, aristocracy turns to timocracy.
Love of wealth grows timocracy turns to Oligarchy, political power coming to depend on property qualifications.
SOCRATIC METHOD
Members identify the explicit or implicit assumptions that underlie each proposal.
The team then breaks into advocacy sub, who examine and argue the relative merits of their positions.
The group reassembles and makes a decision:
embrace one of the alternatives
forge a compromise
generate a new proposal
This process helps the members to better understand the proposals along with their pros and cons. The main disadvantage is
the tendency to forge a compromise in order to avoid choosing sides
Aristotle was a Greek philosopher, logician, and scientist. Along with his teacher Plato, Aristotle is generally regarded as
one of the most influential ancient thinkers in a number of philosophical fields, including political theory. Aristotle was born in
Stagira in northern Greece, and his father was a court physician to the king of Macedon. As a young man he studied in Plato's
Academy in Athens. After Plato's death he left Athens to conduct philosophical and biological research in Asia Minor and
Lesbos, and he was then invited by King Philip II of Macedon to tutor his young son, Alexander the Great. Soon after Alexander
succeeded his father, consolidated the conquest of the Greek city-states, and launched the invasion of the Persian Empire.
Aristotle returned as a resident alien to Athens, and was a close friend of Antipater, the Macedonian viceroy. At this time (335
323 BCE) he wrote, or at least worked on, some of his major treatises, including the Politics. When Alexander died suddenly,
Aristotle had to flee from Athens because of his Macedonian connections, and he died soon after.
Aristotle's life seems to have influenced his political thought in various ways: his interest in biology seems to be
expressed in the naturalism of his politics; his interest in comparative politics and his sympathies for democracy as well as
monarchy may have been encouraged by his travels and experience of diverse political systems; he criticizes harshly, while
borrowing extensively, from Plato's Republic, Statesman, and Laws; and his own Politics is intended to guide rulers and
statesmen, reflecting the high political circles in which he moved.
Aristotle
is
often
said
to
be
the
father
of
natural
law. Like
his
philosophical
forefathers Socrates and Plato, Aristotle posited the existence of natural justice or natural right. His association with natural
law is largely due to the way in which he was interpreted by Thomas Aquinas. This was based on Aquinas' conflation of natural
law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics. Aquinas's influence was such as
to affect a number of early translations of these passages, though more recent translations render them more literally.
Aristotle's theory of justice is bound up in his idea of the golden mean. Indeed his treatment of what he calls "political
justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every
other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking
what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general
justice and particular justice. When a person's actions are completely virtuous in all matters in relation to others, Aristotle
calls her "just" in the sense of "general justice;" as such this idea of justice is more or less coextensive with virtue. "Particular"
or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others
equitably.
Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means
something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from
nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law
theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his
remarks as to nature are about the grounding of the morality enacted as law, not the laws themselves. The passage here is
silent as to that question.
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes
that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to
nature. The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to
appeal to such a law, especially when the "particular" law of ones' own city was adverse to the case being made, not that
there actually was such a law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law
suggested in this passage to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
In Plato, we saw a tension between two different accounts of law: one as an imperfect, man-made set of rules
established for the purpose of peaceful coexistence, and the other as a divine order encoded into human law by an individual
with privileged access to the divine world. Aristotle recognized this distinction, and attempted resolve the tensions.
Aristotle felt it was important to ground law into a divine, natural order of some kind. This cosmic order is what gives law
its binding authority. He, like Plato, also believed that a central function of law was to compensate for the imperfect and
random judgment of men. He drew from an example presented by Platos Socrates (in Platos more dubious second point of
view). People have passions and behave randomly, but reason can corral those otherwise random impulses together and
direct them towards a higher and more noble purpose. In the same way, law can be the voice of reason to a population of
random and various purposes, and can channel them towards nobler ends.
According to Aristotle, legislators may discover basic principles and abstract ideas, but the business of making laws
is a practical activity, and the legislator has to attend to the contingent human world. The activity of legislating is not
concerned with disclosing the unchanging truth, but rather with interpreting it for particular circumstances. Thus, while the
abstract ideas may be universal, the laws that a legislator makes may be different according to different contexts, because a
legislator interprets the abstract principles and applies them to each circumstance. Thus,
The twofold character of law is described by Aristotle as if there were two sorts of law, which he calls particular and
universal. Particular law is that which each community laws doesn and applies to its own members; universal law is the
law of nature. Because everyone to some extent divines this law of nature, we can know what it really is, Aristotle says.
That everyone can divine the natural law follows from the definition of man, common to Plato and Aristotle, as a compound
of reason and passion or of spirit and matter, or as a rational animal. This understanding of human nature implies that the
rational or spiritual element of man is a participation in the ruling principle of the universe, and that the universe is a cosmos
ordered by a rational and divine principle, of which mans reason is a fragment. Aristotle makes it clear that men can claim to
have knowledge of an unchanging natural law because they share in the divine reason that rules the universe, and this
belief postulates a universe that incorporates within itself its divine ruling principle. In short, the idea of natural law rests on
assuming that God is neither beyond and outside his creations nor incomprehensible, but is rather immanent in human
reason.
So, while there are universal, abstract ideas which we can intuit, not all law is a direct encoding of this overarching
order. There is also a need for practical wisdom in applying these laws to particular circumstances. For example, Aristotle said,
of political justice, part is natural, part legal; natural, that which everywhere has the same force and does not exist by
peoples thinking this or that; legal, that which is originally indifferent, but when it has been laid down is not indifferent.
This belief in a rational order may seem to imply that men have a moral duty, by conscience, to obey well-executed
laws, and also that laws that are not rooted in this rational order may be properly disobeyed. This is because if the authority of
law comes from its relationship with the rational order, when there is no relationship with the rational order, there is no
authority. In matters where legal justice can be required to conform to natural justice, the divine element in men that
gives each person natural knowledge of this higher justice would seem to give every person the right to refuse to observe
an unjust law. However, Aristotle unequivocally denies both that legislating is merely a matter of enacting a pattern
discovered in the sky and that every man has a right to disobey a law when he finds that it conflicts with natural law. Thus,
Aristotle did not believe that just anybody could rebel against a law when he did not see its connection with the divine order.
So, there is a rational order that is known to people, self-evident in a sense through reason, but the actual laws that a
legislator enacts may vary from place to place, according to various circumstances and the needs of the people. These laws
may not be a direct logical deduction from universal principle, but nonetheless are implemented as law by people and are still
to be obeyed.
The Polis
Aristotle was also concerned with the questions, What is a polis? and, What does it mean to be a citizen of a polis?
Consider the implications of this question. Plato defined a polis as an association created by law: it is a collective body of
people who are governed by a common set of rules. According to Aristotle, however, a simple agreement to a set of rules,
however, is not enough to make a polis. For example, my friends and I agree to abide by a set of rules when we play Risk, but
we are not a polis for doing so. Or, two nations may make treaties and agreements with each other, but their association can
hardly be called a new polis. A business may collect participants towards a common goal, but this association is not
a polis either.
Aristotle believed, like Plato, that a polis is, indeed, characterized by a subscription to a common set of rules. What
makes the association a polis, in contrast with a mere treaty, or a game, or a business is the goal or purpose the association
and its rules are working towards. Aristotle did not believe (as Plato did) that the rules that govern the polis could be entirely
non-instrumental. That is, they cant be conventions designed merely to allow people to simply get along with each other. Why
is this? Well, as we mentioned before, two nations may make agreements that allow them to get along, but mutually
consenting to a set of rules is hardly enough to make the subsequent association a polis. The laws that govern a polis must
have an end that is unique to that association. Just as rules of a family have a purpose that is suited to the purposes of the
family, and the rules of a military must serve the purposes of the military, the laws of a polismust serve purpose of the polis.
Aristotle said, any polis which is truly so called, and is not merely one in name, must devote itself to the end of
encouraging goodness. Otherwise, a political association sinks into a mere alliance, which only differs in space [i.e. in the
contiguity of its members] from other forms of alliance where the members live at a distance from each other. The end and
purpose of a polis is the good life, and the institutions of social life are means to that end.
In other words, Aristotle believed in an instrumental view of law, and saw thepolis as a universitas-type of association
united under the common goal of achieving the good life. A set of non-instrumental rules that dont direct the populace
towards a common end would make the polis no different than a mere alliance among its participants.
However, a subscription to common rules designed to achieve the good life is not sufficient to make a polis either. Those
that subscribe to this common set of rules must be common from various backgrounds. Youve got to have bakers, artisans,
soldiers, fathers, brothers, merchants, etc. What makes a polis a polis is that the association transcends and subsumes just
about every other kind of association. Almost all other associations are a part of the polis. Thus, contained within the
universitas of the polis is the societas of everyday society.
What does it mean to be a citizen of a polis? This too is a more interesting question than it appears. Consider; we
require non-citizen residents to abide by the same rules we do while they live here, but they are not citizens. There are many
examples of people who we require to follow the law, but we do not consider them citizens of the polis. Thus, although
a polis is a collective subscription to a common set of rules designed to achieve the good life, being a citizen of a polis is more
than just adhering to those rules and living within the boundaries of the polis. To be a citizen, Aristotle concludes, is to
participate in the lawmaking of the polis in some way. For example, in the United States, we are a citizen when we can vote.
Political Systems
We should also take a brief moment and look at Aristotles view of political systems. He believed that there are three
different kinds of proper government: kingship, aristocracy, and polity. All three of these can look after the common interest;
kingship is when one person rules, aristocracy is when the best rule, and polity is when the masses rule, but only to the extent
that they look after the common interest.
Forms of Government
Proper
Counterfeit
Kingship
Tyranny
Aristocracy
Oligarchy
Polity
Democracy
Unresolved Conflict
Plato presented two different points of view; one was the beginning of social contract theory, as championed by Thomas
Hobbes. Law is a human agreement, Hobbes, designed to help us get along, that we are obligated to obey because of mutual
agreement, or social contract.
The other view Plato presented is a rendition of natural law theory, and described law as a divine order in the sky that is
articulated by the philosopher-king. Marcus Cicero developed this idea, but borrowed from Aristotle the belief that everybody
has an innate knowledge of the divine law. He argued that all laws that differ from this universally known divine law are not
even real laws, but only the instruments of men in rebellion against divine law.
Aristotle tried to reconcile the two worldviews by pointing out the distinction between theoretical and practical reason;
people can encode an abstract divine law into human instruments applied to unique circumstances. Thomas Aquinas further
developed this distinction in his philosophy of law, and he showed different ways in which the divine order can be applied to
particular circumstances. Thus, Cicero, Aquinas, and Hobbes each developed various parts of the philosophies presented by
both Plato and Aristotle.
By a law of nature, then, Aristotle does not mean statutes, or a system of rules, discernible by intellectual perception;
rather, what he means are recurring equalities or inequalities in the nature of things, which, he considers, serve to justify
general claims involving the distribution of things and actions. Three important things should be noted about a law of nature
in this sense:
First, Aristotle thinks that a law of nature may appropriately be invoked as grounds for disobeying a human law which
contravenes it, since the law of nature has the higher authority. This is clear from his favorable reference to the Antigone of
Sophocles and his willingness to contemplate jury nullification in the Rhetoric. It is unclear from the text on what grounds
Aristotle held that a law of nature has the higher authority; but we may speculate that his view here is connected with his
views expressed elsewhere that the ultimate causes of nature are divine, and that human artifice should assist or complete
nature rather than subvert it.
Second, it may reasonably be wondered why, if something is a law of nature, it is not recognized and followed
universally by human beings. In fact no prescription seems to be acknowledged by all cultures and times, not even Do not
murder. The puzzling language of the Nicomachean Ethics, which defines nature as something that has the same force or
influence in all times and places, suggests how Aristotle would deal with this problem.
Third, it seems to be Aristotles view that a law of nature or what is just by nature never has an effect on our actions
without some admixture of the conventional and the arbitrary. No precept is purely natural; all precepts are framed with a
view to an application to particular circumstances, and for this something arbitrary will be required. Aristotles helpful example
is of the difference between wholesale and retail measures: in all times and places, people use larger measures in wholesale
markets than in retail; they do this in view of the nature of the casethe wholesale market involves a higher-level distribution
of goods for sale, and therefore it calls for larger measuresand in this sense by nature wholesale measures are larger than
retail; nonetheless, which measures to use at each level is purely a matter of convention: e.g. kilograms rather than pounds,
and grams rather than ounces.
In general, the definition of natural found in the Nicomachean Ethics, V.7 shows the wrongness of a common view
about Aristotle and natural law: It is often claimed that Aristotle could have had no notion of a natural law, because he was
still philosophizing in a context, evident in the Sophistic Movement, in which nature (phusis) and law (nomos) were
contrasted and held to be incompatible. Only with the supposition of a God who is both a lawgiver and the governor of nature
a supposition which became common after the rise of Christianitydid it make sense to conceive of a natural law (or so
the objection goes). But the passage from the Rhetoric, I.13 shows that Aristotle had no difficulty conceiving of a natural law
or using language along those lines, and we have explained what he meant by this and how it was open to him to think in this
way. What is additionally interesting about the discussion of what is natural is that it shows Aristotle arguing that, far from
being incompatible, the natural and the conventional are almost indistinguishably intertwined in human practical reasoning
and law; in fact, this is a distinguishing characteristic for Aristotle of distinctively human as compared with divine justice.
Today natural law theories are sometimes taken to be distinctive insofar as they attempt to provide for and justify the
claims that (i) human law in certain circumstances is null and void (lex iniusta non est lex) and also that (ii) there are actions
which, because of the kind of action that they are, are never to be done whatever the consequences (so-called moral
absolutes or actions per se malum). The two aspects are related: the way in which a precept most commonly gets dispensed
with is by being overruled; thus a precept of the highest authority about a sufficiently plain matter of equality or inequality,
one would think, would lack exceptions.
Aristotle seems to be disposed to recognize moral absolutes corresponding to laws of nature: for instance, given his
sympathies with Antigone, one would think he would regard bury ones blood relation as that sort of absolute prescription, to
be followed except when it is impossible to do so. Also, it is interesting to note that Grotius, influential on the Founders in their
understanding of Aristotle, similarly interpreted a passage in Aristotles Ethics:
the Law of Nature is so unalterable, that God himself cannot change it. For tho the Power of God be infinite, yet we
may say, that there are some Things to which this infinite Power does not extend, because they cannot be
expressed by Propositions that contain any Sense, but manifestly imply a Contradiction. Things are no sooner
mentioned than we discover Depravity in them. For as the Being and Essence of Things after they exist, depend not
upon any other, so neither do the Properties which necessarily follow that Being and Essence. Now such is the Evil
of some Actions, compared with a Nature guided by right Reason. Therefore God suffers himself to be judged of
according to this Rule.
Aristotle did affirm the existence of a law of nature, but he was admired by and influenced the American Founders
more for his related views on republican government and the rule of law.
Some of the Foundersnotably, John Adams and James Wilsonrefer frequently to Aristotle and show a deep
acquaintance with his Politics. Moreover, Aristotle generally enjoyed an authority among the Founders like that which he had
exercised over the learned world for centuries beforehand.
Aristotle was regularly included by the Founders in their lists of reliable and authoritative political philosophers. John
Adams similarly wrote that the principles of the American Revolution are the principles of Aristotle and Plato, of Livy and
Cicero, and Sidney, Harrington, and Locke; the principles of nature and eternal reason; the principles on which the whole
government over us now stands.
Indeed, Aristotle was credited as the original source for many doctrines generally affirmed by the Founders, including
the following five:
government should govern for the good of the people, not for the good of those in power;
there is a natural aristocracy, and skilled statecraft arranges things so that this element acquires authority, or, failing
that, blends democratic and oligarchic influences in society to approximate to that outcome;
mixed regimes are better than pure regimes, because they are more stable;
the best form of government in nearly all circumstances involves the balancing of aspects of all three pure regimes
(kingship, aristocracy, and timocracy);
a pure democracy can easily turn into a tyranny of the majority.
However, the teaching of Aristotle that was most admired by the Founders was his insistence upon the rule of law,
especially as stated in a passage from the Politics, where law is said to be reason or intelligence (nous), free from passion,
and, as it were, the governance of God. Their imagination in this regard seems to have been captured by several passages
that indicate a conception of the institution of the rule of law as akin to the institution of the Kingdom of God.
C I C E R O (10643 B.C.)
Marcus Tullius Cicero was born on 3 January 106 BC. His family was from the town of Arpinum, about 70 miles southeast of Rome. The name Cicero means chickpea, and stemmed from an ancestor who had a wart at the end of his nose, which
looked like a chickpea.
Cicero studied literature, philosophy and law in Rome. His studies were interrupted by a spell of military service under
Gnaeus Pompeius Strabo during the Social War (He claims to have supported Sulla in the upheavals of the 80s without
actually taking up arms. In 80, Cicero appeared as the advocate defending Sextus Roscius of Ameria against a charge of
parricide. He defended Roscius by turning the accusation of murder back on one of Roscius' accusers, his relation Titus Roscius
Magnus, and another relation, Titus Roscius Capito. What caused a sensation was Cicero's claim that Chrysogonus, one of
Sulla's freedmen, had assisted in covering up the murder and, for his pains, had bought the lion's share of the dead man's
property at a rock bottom price a claim that could easily be seen, despite all Cicero's protestations to the contrary, as an
attack on Sulla himself. Sextus Roscius was acquitted and Cicero was famous.
Cicero maintained high moral standards that could only be upheld with a great deal of determination and self-restraint.
He wanted these principles to remain being applied to the Roman Republic.
Cicero, prominent Roman statesman and consul, pre-eminent orator, lawyer, and master of Latin prose, and significant
moral and political philosopher, left a substantial written legacy. Within that legacy he gives extensive attention to the natural
and thus universal basis of justice and right. In fact, it might fairly be said that his treatment of the natural foundation of right
is his most important contribution to moral and political thought: it stands historically at a critical juncture where this idea
assumes clearly the language of natural law and comes to exercise a direct and formative influence on leading thinkers from
the first centuries of Christianity through the Renaissance.
Cicero looked back to the great Greek thinkers as one deeply conscious of his debt to them and yet aware of distinctive
Roman ways and the general Roman resistance to any dependence on the Greeks. As a very public man in his actions as well
as his writings he had to walk a careful line between his wanting to share his convictions of the primacy of the thinking of
Socrates, Plato, and Aristotle and the requisite manifestations of his genuine Roman patriotism. He considered Plato as the
first among all philosophers, Aristotle second. It seems that he directly engaged a number of Aristotles texts, but he also
knew Aristotelian thinking through the representatives in his day of the Peripatetic school of philosophy which Aristotle had
founded. Centuries later Dante would look back on Cicero as Romes best Aristotelian.
The Phillipics
On Duties
On the Republic
On the Nature of gods
On the Orator
On Old Age
In On the Republic, Ciceros Scipio indicates that deep thinking helps one see a common law of nature that provides a
higher standard than the civil law, a law of nature that gives both privileges or rights, and responsibilities or duties to the truly
wise. Not too much later in the dialogue the idea that there is a law of nature beyond the will of the stronger, of the dominant
class, or of public opinion comes under attack. Cicero assigns this Academic task to a character named Philus. The second
passage in the Documents (Republic 3.1819) provides an indication of the kind of argument Philus makes, which emphasizes
both the variation in laws from nation to nation and time to time, and that even well-known philosophers seem to differ from
common practice in interpreting a standard of justice like giving every person their due. Philus represents a set of arguments
heard yet today against the idea of a natural justice and natural law, namely, that variations in just civil laws and customs
and differing opinions even among leading thinkers constitute an indication that there exists no natural, common
understanding of the right and the just.
In the same book he wrote that the concepts true law and right reason indicate that not every law is indeed a law,
and not every reason, even if pronounced by a philosopher, would be a sound reason. Given what is said about upright
men contrasted with wicked men, it is clear that one must be disposed in a certain way to heed the true law, and yet in
cases of individual wicked men and even where customs and civil laws are generally at variance from right reason, seeds of
this true law remain in all, never to be entirely obliterated.
Fundamental law that is to be directive of human beings comes from a choosing or selection of the highest reason
implanted in nature (1.1819); the human mind grasps that fundamental law and derives from it the rules of right and wrong.
Thus the effective natural law for humans is the mind and reason of the prudent man (1.19). In reaching into nature and
learning from her, the wise person shares in a divine force or the very mind of god. Here is an important instance where Cicero
shows himself apparently sharing a Stoic understanding of the divine dimension of the law of nature pervading the whole
universe.
A statement Cicero makes in On the Laws points to the enrichment of his thinking on natural law in On Duties, the final
philosophical work in his richly productive life. Not only right and wrong are distinguished by nature, writes Cicero, but also
in general all honorable and disgraceful things. For nature makes common understandings for us and starts forming them in
our minds so that honorable things are based on virtue, disgraceful things on vices (1.44).
In Book One of On Duties, there is an explanation of the basic human inclinations that give rise, with reasons guidance,
to the foundational (later to be called cardinal) virtues of wisdom, justice, courage/magnanimity and
temperance/moderation. Finding these virtues is the way to finding natures way for humans, to finding the law of nature and
thereby what is right.
Cicero has made a monumental contribution to the tradition of natural law and natural rights in the West. While revering
and learning from his great Greek predecessors in the tradition of moral and political philosophy as well as from the schools of
philosophy in his own time, he brings forward in a more explicit way the language of natural law, thus developing the notion of
following nature or of what is right according to nature. He points quite unambiguously to a divine source for this law and
anticipates later developments of the notion of conscience by stressing that all humankind have a sense of the right within
them, seeds needing nourishing and guidance to flourish as mature reason. This maturing entails reason being brought to
work upon the gift of our inclinations and thus to formulate the virtues and the very law of nature. This law then is to be the
standard shaping the commonalities in the laws of nations and against which one can judge the rightness of any specific civil
laws and the edicts and rulings of magistrates. Since humans are by nature communal and political beings, he is emphatic in
stressing that a natural justice means that one must never do harm and must always serve the common good. Cicero in this
text and throughout his writings shows his awareness of the complexity entailed in understanding what true harm and the
true common good are.
Ciceros impact, both direct and indirect, on important post-Renaissance thinkers such as Locke, Hume, and
Montesquieu was substantial, and through such writers, and often directly, his thought and very phrases reached to Americas
founding generations. Thomas Jefferson explicitly names Cicero as one of a handful of major figures who contributed to a
tradition of public right that informed his draft of the Declaration of Independence and shaped American understandings of
the common sense basis for the right of revolution.
Ciceros On Duties, highly regarded and influential throughout much of Western history, was regularly present in the
libraries of early America. John Adams and James Wilson were notable in the founding period for recalling Cicero and his
teaching on the principles of nature and eternal reason. Wilson had contributed in important ways to the success of the
Constitutional Convention of 1787 and the subsequent ratification of the Constitution. His important lectures on law in 1790
91, which saw President Washington, Vice President Adams, and Secretary of State Jefferson in attendance at times, gave
prominent attention to Cicero on natural law.
aforementioned instances.
ULTIMATE REALITY
Aquinas was primarily a Christian theologian.
He viewed human wisdom as structural like a pyramid with the sciences of
ethics and politics as its base with philosophy above and theology at its apex.
Natural philosophy are not contradictory but complementary.
Faith and reason are valid in their own realms.
equality of
creatures which is inherent to all human beings.
Human beings are partners with God and politics is necessary even if
there was no fall from the Garden of Eden.
Politics is right of governance.
Reason is the basis of law. Non-human animals have specific natural
defenses (like claws), whereas humans rely on reason for survival. Need for guidance from delegates. Human co-creation
requires human
cooperation and cannot be done by single individuals with their limited
talents.
Need to interact. The power of speech show that solitary existence is
inappropriate; speech and language provide the means for interpersonal
projects.
On humanization and the need to be governed
Humans must achieve humanization and eternal salvation and this entails a
principle of government within society.
Humanization presupposes the principle of government. Essential part of
humanity is to be governed.
If it is natural for human beings to live in society, then it follows that there must be
regulation of society. For no human group can long endure if each person sought only
his individual ends. One of them would have to provide for the common interest, just as
an organism would break apart unless it had some controlling power in it which worked
for the good of all bodily parts.
Humans require political rule for survival.
Government is for general welfare. Humans should be put under rule of those
providing for the common good and interest.
The king or government exist to prevent chaos.
Original sin leaves humans wounded, fallible, and frail though not vitiated or
corrupted.
Presence of political institutions leads to enjoyment of God. Political
institutions foster knowledge, culture, and virtue and permit humans to pursue
their ultimate end, which is the enjoyment of God.Church and State
Separation of Church and State. Aquinas views the church as caring for souls
but believes church and state are ultimately complementary.
Political authority is derived from God.
Natural reason and divine law. The best rulers follow both natural reason and
divine law of love and mercy.
A magnanimous/leader must be willing to do great things on behalf of mutuallydependent people as well as the glorification
of God.
In order to merit honor and glory, a leader must harmonize faith and reason.
The Leader
governing the whole creation. It is not made but eternally existing and therefore
unknowable to humans entirely, yet the source of all true law on earth.
Natural Law.
provide humans with objective, changeless, universal rules or general principles
of action for ethical and political life.
Human Law. True law that is derived from natural law. A rule of state that is at
odds with natural law is no law at all.
Divine Law. The revealed truths such as ten commandments and the Sermon
on the Mounts that supplement and corrects human fallibility and frailty.
RULERSHIP AND NATURAL LAW
Monarchy is the best regime for Aquinas though he is willing to consider other
regimes as well since no particular form of government is ordained by God.
Rulers must protect the spiritual equality of humans.
Man is bound to obey God and not man in spiritual affairs.
Politics cannot produce perfect justice, perfect peace, or perfect salvation.
Natural Law and Justice from Summa Theologica
I answer that, Laws framed by man are either just or unjust. If they be just, they have the
power of binding in conscience, from the eternal law whence they are derived, according to
Prov. 8:15 By Me kings reign, and lawgivers decree just things. Now laws are said to be just,
both from the end, when, to wit, they are ordained to the common good and from their
author, that is to say, when the law that is made does not exceed the power of the lawgiver
and from their form, when, to wit, burdens are laid on the subjects, according to an
equality of proportion and with a view to the common good.
Francisco
Grossman
contrary, and what is not contrary to the rule. When Hobbes argues that all
civil law is positive, he means that all civil law is imposed by the sovereign.
2.) Law is simply a matter of what the sovereign of a given
community has commanded of its subjects.
And identifying the content of the sovereigns commands need not involve
morally evaluating that content, or evaluating anything else, just as
identifying the content of any other speech act, such as a request or
declaration, does not require moral evaluation by those to whom it is
addressed in order to be understood.
Since a command is a sign of the will of the sovereign, identify-ing the
content of a given command is tantamount to discerning the sovereigns will,
whatever it may be.
3.) There are no moral restrictions on what the sovereign may
command.
The limits of what the law might be are determined simply by whatever the
sovereign could intelligibly command. Common law is the Kings law,
whosoever pens it. The fact that a sovereign tolerates a custom or common
law judgment means that the sovereign has authorized it.
The standard positivist/natural law oppositions are:
positiv Vs.
moralit
e law
y
state
church
profane
transcende
ntal
command
counsel
threats
internalize
d
obligation
Will
Reason
The Law and The State
Hobbes and Austins view
-State is perceived as the creator and enforcer of the law with the power to
inflict evil or pain in case its desires are disregarded.
-No right can be claimed against the state which it has not previ-ously
accepted.
Kelsens view
-the personification of the state is avoided by considering the state and the
law as one for the reason that within one nation and not two compelling
orders can be valid at the same time.
The Supreme Political Superior
The state as the collective legal association under the rule of ma-jority is the
supreme political superior. ( doctrine of non- suability of the state)
When the exercise of delegated to the government is a deliberate and
persistent disregard of the will of the supreme political superi-or, then such
adverse governmental challenge can be blunted, curbed or even denied by
Elijah A. Manlod
Jowan Gonzales
Functional Perspective:
Also called functionalism,
is one of the major theoretical perspectives in sociology. It has its
origins in the works of Emile Durkheim, who was especially interested in how
social order is possible or how society remains relatively stable.
Much of Durkheim's work was concerned with how societies could maintain
their integrity and coherence in modernity; an era in which traditional social and
religious ties are no longer assumed, and in which new social institutions have come
into being. His first major sociological work was The Division of Labor in
Society (1893). In 1895, he published his Rules of the Sociological Method and set
up the first European department of sociology, becoming France's first professor of
sociology
Durkheim was also deeply preoccupied with the acceptance of sociology as a
legitimate science.
Ludvig Gumplowicz:
-
Roscoe:
-
the individual needs the force of social control to keep the two sides of
Explanation:
-
Laws are guidelines that set out appropriate behaviour that has been
developed over time,
and are based on moral beliefs, a human condition that sets out a purpose
that society in general is called upon or required to fulfil. Without the
fulfilment of these desired tasks, man simply will become equal to animals
or worse still, allow their darker sides (or impulses) to emerge and control
their lives. Thus, law acts as a guardian against the inevitable anarchy that
would engulf humanity Misconducts:
Crimes, felonies, misdemeanours, infraction, civil law suits (disagreements of
the people)
Crimes misconduct considered to be harmful that the society employs
public officers to try to prevent the misconduct and to punish those who
engages in it.
Functions of law:
(1)Defending us from evil
The first and most basic function of law is to defend us from evil that is,
those who would seek to harm us for no good reason. This function of law
underlies 20th century developments in International Law such as
the Nuremberg Trial sand the creation of the International Criminal Court.
(2) Promoting the common good
Law is not just concerned with bringing evil people to account for their
actions. A community made up of people who bear no ill-will to anyone else
and are simply concerned to pursue their own self-interest needs law
because there are situations where if everyone pursues their own selfinterest, everyone will be worse off than they would have been if they acted
differently. (This is the reverse of the invisible hand phenomenon where if
everyone pursues their own self-interest, everyone in the community is made
better off, as if everyones actions were guided by an invisible hand to
achieve that end.) So a community of self-interested actors needs law: (i) to
solve Prisoners dilemma situations; (ii) to distribute into private hands
property that would otherwise be exploited by everyone, thereby avoiding
a tragedy of the commons situation arising; (iii) to prevent people acting on
their natural desire to extract an eye for an eye in revenge for actual or
perceived wrongs that they have suffered at other peoples hands.
(3) Resolving disputes over limited resources
As every family knows, in any community there will always be disputes over
who should have what of a limited number of resources. Law is needed to
resolve these disputes, as exemplified by the famous story of the Judgment
of Solomon.
(4) Encouraging people to do the right thing
It was thought even from classical times that law performed a fourth function
that of encouraging and helping people to do the right thing. For
example, Aristotle (384 BC 322 BC) argued that people needed the
discipline of law to habituate them into doing the right thing, from which
standpoint they could then appreciate why doing the right thing was the
right thing to do. Up until the 20th century, this view of law was accepted by
law makers, with the result that the UK legal system contained a large
number of morals laws that is, laws that were designed purely and simply
to stop people acting immorally, according to the lights of Christian
teaching on what counted as immoral behaviour. However, in the 20th
century, the harm principle propounded by John Stuart Mill in his book On
Liberty, according to which the law should not sanction people for acting
immorally unless their conduct involved some harm to others, gained more
and more popularity, and resulted in the abolition of large numbers of
morals laws. These trends triggered what is now known as the Hart-Devlin
debate over the extent to which it is legitimate for the law to enforce
morality. Lord Devlin at the time, a judge in the House of Lords, the highest
court in the land argued that law should enforce morality so as to preserve
the cohesiveness of society. Professor H.L.A. Hart at the time, the most
famous legal philosopher in the world based his position squarely on Mills
harm principle, though subject to the caveats that the law might legitimately
prevent someone acting immorally if doing so involved harm to himself or
would cause offence to others. Harts views are set out in his widely read
book Law, Liberty and Morality. Hart is thought to have won the debate
but his concessions that it might be legitimate to make it illegal for someone
to engage in immoral behaviour that will (i) harm himself or (ii) offend
others, seem to make little sense.
Law can become an instrument of evil, a means by which a countrys
rulers can rob people of their property and oppress minorities.
It is also argued that even if law is not actually used as an instrument of evil,
it can become its accomplice by doing such things as:
(i) hamstringing public officials (such as the fictional Jack Bauer of the
American TV series 24) from doing what is necessary to prevent terrorist
atrocities; and
(ii) granting people rights and encouraging them to exercise them, thereby
fostering a damaging culture of complaint and compensation culture that
alienates people from each other, and discourages people from helping other
people for fear that doing so might result in their being sued.
Guides to legal order: (Jural Postulates of the civilization of the ff:)
1. time and place
2. social interests
3. national policies
Functional concept of law:
Social control:
-
the justice
Ex. The power of the state for eminent domain wherein a private property
must be sacrificed also there must be a just compensation.
Individual and public interests are subject to or tested by the social interest
and national policies
Social Interest and National Policies are part of keeping public order.
Social Interest and National Policies:
Social interest: in the General Security
Social interest: in the maintenance and protection of social institution
Social interest: in the general morals
Social interest Social group:
1. Domestic institutions
2. Religious Institution
3. Political Institution
4. Economic Institution
Social Interest: in the Conservation of Human Resources
Social Interest: in the Conservation of Natural Resources
Social Interest: in the General Health
Social Interest: in Human personality and Dignity
Social Interest in the General Process
1. Cultural progress
2. Moral progress
3. Economic progress
4. Political progress
Roscoe Pound jural postulates of civilized society as follows:
First, men must be able to assume that others will commit no intentional
aggression upon them.
Second, men must be able to assume that they may control for beneficial
purposes what they have discovered and appropriated for their own
use, what they have created by their own labor, and what they have
acquired under the existing social and economic orders.
Third, men must be able to assume that those with whom they deal in the
general intercourse of society will act in good faith:
a. will make good reasonable expectations which their promises or
other conduct reasonably create
b. will carry out their undertakings according to the expectations
which the moral sentiment of the community attaches thereto,
c. will restore specifically or by equivalent what comes to them by
mistake or unanticipated or not fully intended situations whereby they
receive at anothers expense what they could not reasonably have expected
to receive in the circumstances
Fourth, men must be able to assume that those who are engaged in some
course of conduct will act due care not to cast unreasonable risk of
injury to others.
Fifth, men must be able to assume that others who maintain things likely to
get out of hand or to escape and do damage will restrain them or keep
them within their proper bounds.
Sixth, everyone is entitled to assume that burdens incident to life in
society will be borne by society.
Seventh, everyone is entitled to assume that at least a standard human
life will be assured him, not merely equal opportunities of providing or
attaining it but immediate material satisfaction.
Eight, every person is entitled to assume that he or she may perceive and
feel the pleasures evoked by the beauty of nature, fine and
Conclusion
All legal systems do harm of one kind or another. Some of that harm is
intended: in order to achieve its goals, a legal system always has to limit
peoples freedom. Some of that harm is an unintended side effect of the
legal systems attempting to achieve its goals: for example, harms (i) and
(ii), above. What is important is: (1) that our legal system do more good than
harm; and (2) that our legal system not do any unnecessary harm. I dont
have any doubt that (1) is true of our legal system; at the same time, I dont
have any doubt that (2) is not true. So the verdict on our legal system must
be Good, but could be better. How our legal system could be improved is a
matter of debate.
In the book The Law of Energy for Sustainable Development by the IUCN
Academy of Environmental Law Research Studies, a study cites Oposa vs.
Factoran as basis for asserting that the right to breathe is part of the right
to life as an acknowledged human right
-
LEGAL REALISM
I. DEFINITION
Legal realism is the theory that judges may decide cases by taking into
account factors
other than pre-existing law. Realism initiated a dialogue between law and
social science by staking a claim for the relevance of phenomena beyond
legal categories.
(Source: Legal Realism Explains Nothing, Anthony D'Amato, Northwestern
University School of Law)
II. BRIEF BACKGROUND:
A. AMERICAN LEGAL REALISM
American legal realism refers to an intellectual movement in the United States that
coalesced around a group of law professors and lawyers in the 1920s and 1930s,
including Karl Llewellyn, Jerome Frank, Felix Cohen, Herman Oliphant, Walter
Wheeler Cook, Underhill Moore, Hessel Yntema, and Max Radin. These writers
thought of themselves as taking a realistic look at how judges decide cases, at
what the courts do in fact, as Oliver Wendell Holmes, Jr. (a major intellectual
forebear) put it. These writers thought of themselves as taking a realistic look at
how judges decide cases, at what the courts do in fact, as Oliver Wendell
Holmes, Jr. (a major intellectual forebear) put it. What judges really do, according to
the realists, is decide cases according to how the facts of the cases strike them,
and not because legal rules require particular results; judges are largely fact responsive rather than rule - responsive in reaching decisions.
How a judge responds to the facts of a particular case is determined by various
psychological and sociological factors, both conscious and unconscious. The final
decision, then, is the product not so much of law (which generally permits more
than one outcome to be justifi ed) but of these various psychosocial factors,
ranging from the political ideology to the institutional role to the personality of the
judge. Thus, the legacy of realism in both the practice and teaching of law consists
of phenomena like these: lawyers now recognize that judges are infl uenced by
more than legal rules; judges and lawyers openly consider the policy or political
implications of legal rules and decisions; law texts now routinely consider the
economic, political, and historical context of judicial decisions. In this sense, it is
often said that we are all realists now.
Edgar Bodenheimer (1908-1991) views the legal realists as the radical wing of the
functional school of jurisprudence because their concept of the nature of the Law.
Julius Stone is similarly minded. He feels that the realist perspective is but a gloss
on the functional philosophy of law. For Stone and Bodenheimer, legal realism
considers the same factors that functional jurisprudence deals with in the study of
the nature of the Law.
Not quite. Unlike functional jurisprudents, the legal realists are more concerned with
the operation of the legal order in terms of the experiences and inter-experiences of
the people in the legal ordering of society. For this reason, legal realists are not
merely advocates of certain tendencies of the functional school of jurisprudence.
The legal realists have a philosophy of law quite apart from that of the functional
jurisprudents.
II. THE REALISTS THEORIES OF LAW
A. PREDICTION THEORY OF LAW
what it is and what it ought to be. The positivist school of jurisprudence is criticized
for over-dependence on the role of rules in the legal ordering of society. The
teleological school of jurisprudence is faulted for its over-emphasis on the abstract
postulates of the natural law.
The judicial legal realists want a re-examination of the problem of the nature of the
law in terms of the relation of legal rules and legal facts to the realities of the
judicial process.
A. INTELECTUAL FORBEARS
1. Human law and Human Experiences
Justice holmes stated that the law is not a brooding omnipresence in the sky. By
this, Justice Holmes meant that the law is not a divine parent keeping watch over a
human child. In different words, human law is human and should not amount to
more than that. Therefore, for Justice Holmes, the law should address human
experiences past and present. Since law is for human beings and about human
experiences and inter-experiences, Justice Holmes, in exasperation, warned that
the law should not be considered as a system of reason, not a deduction from
ethical principles, corollaries and axioms, or what not.
2. Separation of Law from its Sources
According to Professor John Chipman Gray, a cut should be made between the law
itself and the sources of the law for it is absurd and nebulous to say that the law is
already present and existin in its sources. The point, according to Gray, is which
body can say with authority and finality what the law is. Thus, statures, rules and
regulations, like customs and usages, are no more than the sources of the law. On
this crucial point in legal philosophy, Professor Gray stated:
While the command that legislative acts must be
followed is precise and peremptory, the fact is that this
rule, its working, is almost as indefinite as those which are
imposed on the courts with reference to the other
sources, for, after all, it is only words that the legislature
utters, it is for the courts to say what those words mean,
that is, it is for them to interpret legislative acts.
Undoubtedly there are limits upon their power of
interpretation but these limits are almost as undefined as
those which govern them in their dealing with the other
sources.
And this is the reason why legislative acts, statutes, are to
be dealt with as sources of Law and not as part of the Law
itself, why they are to be coordinated with the other
sources which I have mentioned. It has been sometimes
said that the law is composed of two parts, legislative law
and judge-made law. The shape in which a statute is
individuals to develop their full potential as human beings. He was especially critical
of the rote learning of facts in schools and argued that children should learn by
experience. In this way students would not just gain knowledge but would also
develop skills, habits and attitudes necessary for them to solve a wide variety of
problems.
put this in another way, a group of people recognizes and accepts the desirable
human activities (customs) enriched by the desirable human activities (usages).
B. END PURPOSE OF LAW
John Dewey made it clear that the law is a program of action to be tested in
action not something that can be judged on a purely intellectual basis the life
of the law is the social experience of the people and tested also by their social
experience. Human activities and interactivities are on-going and as such they are
not closed and completely ended social facts. The consequences of human
activities and interactivities provide the basis for the collective decision that they
are to be maintained either intact or changed. The end purpose of the law is the
deliberate achievement of social contentment.
And for John Dewey, social contentment is the satisfaction which comes when the
dominant active tendencies are made interests in the maintenance and propagation
of the things that make like worth living. Upon these conditions, the other
members of society can and should be happy since regard for the happiness of
others means regard for those conditions and objects which permits others freely to
exercise their own initiative, reflection and choice. The end purpose of the law,
thus, remains social in nature for it is found in the society of the individual members
that compose it as a whole.
C. APPLICATION OF LAW
Until law is set into operation in the field modifying and/or maintaining human
activities as going concerns there can be no law I the real sense, according to
Dewey. On the basis of this condition, the law becomes an instrument of social
control. Implicit in this concept is the use or threat of sanctions for the attainment of
the social ends. Thus, in postulating the social aspect of the application of the law.
Dewey said that what is called application is not something that happens after a
rule or stature is laid down but is a necessary part of them; such a necessary part
indeed that in given cases we can judge what the law is as a matter of fact only by
telling how it operated and what its effects are in and upon human activities that
are going on.
(Source: Introduction to Legal Philosophy, Crisolito Pascual, U.P. Law Complex)
VI. LEGAL REALISM AND OLIVER WENDELL HOLMES
Oliver Wendell Holmes is a noted American Chief Justice whose jurisprudence has
shaped the contours of American legal history. Holmes believes that a social view of
the law must be adapted - "the life of the law has not been logic, it has been
experience." There fore, experience must dictate jurisprudence, instead of deciding
through formalistic and black-letter laws. His approach also helped eradicate judicial
reasoning based on natural law or natural right. For Holmes, society and the law is
always in a state of change, and to navigate these changes, the courts must
adjudicate according to the practical effects of the law. Morality, therefore, should
not have anything to do with the law, but is rather a mere state of mind. There are
no absolute truths, only a view towards the practical outcomes. The way to
Holmes claimes that "the life of the law has not been logic; it has been experience."
Law then should not be the primary basis to decide cases, but rather in deciding
cases, all of human experience must be included to provide a context. Judges must
look into history and include science - particularly the science of economics - in their
jurisprudence. With the views of the judges' own particular class in history, judges
have the prerogative to decide cases fairly. The context and texture of the law must
also be dictated by these social and economic forces that prevail during that point
in history. This allows judges to decide according to the felt needs of the time.
Hence, Holmes's legal realism hinges on a pragmatism that is grounded in reality
with the hopes that the decisions that are decided on his docket will push the
progress of History as the courts examine contemporary questions and balance the
rights of those involved.
A study of American Legal Realism would reveal that while its strengths hinge on
basing legal decisions to day-to-day subjective economic, societal, and historical
realities, the negation of relying on a legal system by which to interpret the realities
could easily hold decisions sway to judge's political and capricious whims. A
subjective approach in deciding cases can give the latitude by which to make moral
decisions that are not provided by law, or could potentially give latitude by which to
exploit the legal system by the judge's own political interests. The main issue by
which legal realism can be critiqued is the inherent subjectivity of the person
deciding the case, and this could lead to the societal progress that legal realism
envisions through pragmatic means, or a form that can be easily manipulated by
the whims of the majority if handled by the jury system, or the personal political
motivations of the judge. The autonomy of legal realism in interpreting the law in
the context of society in its pure pragmatic form holds the precise potential for
abuse. Hence the reporters argue that legal interpretation still needs to be
grounded on concepts of equity, justice, morality, and mercy for it to serve the
people's best interests. Jurisprudence as a means of societal progress should not
discount that while society advances, certain moral values must remain intact as a
foundation which grounds these decisions. After all, if the law only means to serve
as a deterrent for the bad man, then what does it seek to posit or uphold in society?
Legal realism mainly extols the values of the pragmatist view in using the law as
merely an instrument to advance societal progress, and what is expedient for a
society may also potentially lead to the contradictory line of reasoning that there
are no longer any societal values that the law should seek to protect. After all, if
morality and values are to be taken out of the equation, then what kind of societal
progress does legal realism envision? A more rational approach to the law and its
interpretation, without the grounding of morality and values, can easily miss wider
scale societal considerations of the issue at hand when making legal decisions,
which in theory, legal realism should seek to protect if it envisions to advance
societal progress.
each with its ruler (alike legislator and judge) and Law. The horde is
made up of the family units, and not of the individual human beings
who make up the family.
The State
Chief artificial person in jurisprudence
entity whose organs are the men engaged in protecting a mass of
human beings from external and internal fraud and violence
Jurisprudence
Science of Law, the statement and systematic arrangement of the rules
followed by the courts and of the principles involved in those rules
Three kinds:
Particular Jurisprudence, or the science of the Law of a particular
community
Comparative Jurisprudence, or the comparison of the Law of two or more
communities
General Jurisprudence, or the comparison of all the legal systems of the
world
Sources of Law
1. Formal utterances of the legislative organs of the society - A
country with a written constitution, the body of persons which enacts
the constitution is the supreme legislature. All other bodies and
persons having legislative powers, including the ordinary Legislature,
Congress, Assembly, Cortes, are subordinate to it.
2. Precedents - rules by which the courts govern their action; covers
everything said or done which furnishes a rule for subsequent practice,
especially in matters of form or ceremony
3. Opinion of experts - sometimes these opinions have been taken up
by the legislative organ of a community and published as part of the
Statute Law
4. Custom - The courts have adopted certain rules because they found
them followed, in society at large, or in some parts of it, in the
intercourse of the members of the society with each other
5. Morality and Equity when a case cant be decided through any of
the above, the judge must ultimately come back to this.
Theories on the Nature of Law
LAW AS THE COMMAND OF THE SOVEREIGN - Every Positive Law,"
he says, "obtaining in any community, is a creature of the Sovereign or
State; having been established immediately by the monarch or
supreme body, as exercising legislative or judicial functions; or having
been established immediately by a subject individual or body, as
exercising rights or powers of direct or judicial legislation, which the
that might be said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as men fight and that
no Court could regard them as protected by any constitutional right.
Courts are apt to err by sticking too closely to the words of a law where
those words import a policy that goes beyond them.
The interpretation of constitutional principles must not be too literal.
We must remember that the machinery of government would not work
if it were not allowed a little play in its joints.
The Common Law
Holmes Masterpiece
The Path of the Law
There is no basis in reason for deciding which of two contradictory legal
doctrines is correct
The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law
The Bad Man: If we take the view of our friend the bad man we shall
find that he does not care two straws about either the morality or the
logic of the law. For the bad man, legal duty signifies only a
prophecy that if he does certain things he will be subjected to
disagreeable consequences by way of imprisonment or compulsory
payment
For critical legal realism, the results of the erroneous tradition maintained by
the dominant liberal paradigm are:
a. the state has become the organization of the dominant liberal
class,
b. the law has become the rationalizing instrument of alienation
and oppression
The social structure has become so divided and hierarchied that status and
position therein determined by irrelevant inequalities.
Critical legal realists say that while the contemporary social order may be a
free society is not really just a society for it is characterized by widening
social divisions and sharpening economic hierarchies.
Roscoe Pound saw the fallacy of contemporary social order. Pound was
referring to the mistake of the dominant liberal paradigm of structuring the
social order in the form of class struggle for existence in terms of economics
and operations of the different forces, including law.
In the Carino case, the plaintiff filed a petition seeking the inscription in
his name of some 146 hectares of land situated in the City of Baguio. Plaintiff
Carino inherited this big tract of land from his ancestors. The Government of
the Philippines then opposed the petition on the ground that the land, being
agricultural, was intended for public and military purpose of the Government
of the United States. The Supreme Court of the Philippines Islands
disregarded the petitioners evidence of immemorial occupation and use of
the land in question. The Court characterized the Igorot tribe, to which the
plaintiff and his ancestors belong, as uncivilized, thereby strongly implying
that the Igorots have no concept or idea of private property, let alone the
concept the ownership. Despite the material facts that the plaintiff and his
ancestors were, as far back as memory goes, in the possession of the land;
that they also held the land for more than fifty years prior to the Treaty of
Paris of April 11, 1899. The Supreme Court ruled that mere possession of the
land did not give the plaintiff title to it and that it cannot be conclusively
presumed that after a lapse of any number of years the Spanish Crown had
granted legal title to the plaintiff. On the basis of this ruling, the Supreme
Clearly, there was a lack of judicial will to relate the rights of this
uncivilized tribe, in general, and the plaintiff, in particular, to the protective
function of the normative principle of the rule of law. There was not only
failure to do justice to the natives but also exploitation of their country for
private gain.
In the Lying case, a project was awarded to a land developer for the
construction of a road system and harvesting of timber on the ancestral
lands of three American Indian tribes which they consider to be sacred
grounds. Notwithstanding the devastating effect upon the cultural heritage
and freedom of religion of the American Indian tribes, the development
project was upheld on the ground that there is no principle in the American
constitution that could justify the claim of the three Indian tribes. By this, the
Court was saying that the project in question did not create a hindrance on
the freedom of the three American Indian tribes to exercise their religion and
religious beliefs. Simply put, the development project did not penalize the
exercise of religion of the three American Indian tribes nor did it coerce
them, directly or indirectly, to act contrary to the sanctity of their ancestral
lands or to their religious beliefs. On this basis, the Court ruled that the claim
of the three American Indian tribes cannot be afforded the protection of the
rule of law.
Here, there was failure to apply the transforming norm of the rule of
social theorists Karl Marx, Friedrich Engels, and Max Weber; Max Horkheimer
and Herbert Marcuse of the Frankfurt school of German social philosophy; the
Italian marxist Antonio Gramsci; and poststructuralist French thinkers Michel
Foucault and Jacques Derrida, representing respectively the fields of history
and literary theory. CLS has borrowed heavily from Legal Realism, the school
of legal thought that flourished in the 1920s and 1930s. Like CLS scholars,
legal realists rebelled against accepted legal theories of the day and urged
more attention to the social context of the law.
CLS includes several subgroups with fundamentally different, even
contradictory, views: feminist legal theory, which examines the role of
gender in the law; critical race theory (CRT), which is concerned with the role
of race in the law; postmodernism, a critique of the law influenced by
developments in literary theory; and a subcategory that emphasizes political
economy and the economic context of legal decisions and issues.
References:
http://www.law.cornell.edu/wex/critical_legal_theory
http://cyber.law.harvard.edu/bridge/CriticalTheory/critical2.htm
http://law.jrank.org/pages/5893/Critical-Legal-Studies.html
1http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1004&context=ipt
2 Frederick Schauer, Formalism, 97 YALE
Legal formalism respects tradition, authority, habit and training. It casts the
judge less as a philosopher of law than as an interpreter and guardian of law.
English jurist Sir Edward Coke was among the first to popularize the
formalistic approach to law in Anglo-American history. Coke believed that the
Common Law was "the peculiar science of judges." The common law, Coke
said, represented the "artificial perfection of reason" obtained through "long
4 Lawyers Handbook Critical Legal Theory: The Power of Law Sam Adelman and Ken Foster
5 http://www.chanrobles.com/actno2031.htm#.UUP7YKI-eSo
study, observation, and experience." Coke also believed that only lawyers,
judges, and others trained in the law could fully comprehend and apply this
highest method of reasoning.6
Since the early 1970s, Professor Ronald Dworkin has been the foremost
advocate of the formalist approach with some subtle variations.
Dworkin
acknowledges that legal reasoning is not a mechanical exercise, and that legal
answers require exercising judgment. Although Dworkin stops short of explicitly
comparing law to science and math, he maintains that law is best explained as a
rational and cohesive system of principles that judges must apply with integrity.
The principle of integrity requires that judges provide equal treatment to all litigants
presenting legal claims that cannot honestly be distinguished. Application of this
principle, Dworkin contends, will produce a "right answer" in all cases. 7
7 Ibid.
of
the
Commission
on
Elections.
Monsods
nomination
was
challenged on the ground that he had not been practicing law for at least ten years,
a legal requirement for the post, and that while Monsods previous work involved
the use of his legal expertise, it did not involve court litigation. 8 The issue raised
was what constitutes the definition of practice of law.
The Court ruled that law practice involves any activity whether in or out of
court which requires the application of law, legal procedure, training, knowledge
and experience. Even though Christian Monsod was not a court litigation lawyer, his
previous work experiences as a lawyer-economist, a lawyer-manager, a lawyerentrepreneur of industry, a lawyer- negotiator of contracts, among others, more
than satisfies the constitutional requirements of the practice of law.
Textualism, on the other hand, interprets the law according to the readers
understanding. It believes that law has serious consequences for those outside the
legislature and that the ultimate recipients of the law are the people, hence they
should not be made responsible to laws which they lack fair notice or
understanding. Textualism holds that the laws ordinary societal meaning should
govern its interpretation. A textualist does not care about legislative intent, what is
important to him is what the plain text means taken in terms of the common public
understanding of the text. Thus, a textualist interpretation focuses upon what the
text would reasonably be understood to mean, rather than upon what it was
intended to mean.
In the Gerona and Balbuena cases, members of the Jehovahs Witnesses who
were students in the public school were expelled due to their refusal to obey
Department Order No. 8, s.1955, issued by the Secretary of Education promulgating
rules and regulations for the conduct of the compulsory flag ceremony in all schools,
as provided in Republic Act No. 1265. The law was assailed as unconstitutional due
to its alleged violation of the freedom of religion clause in the Constitution. The
petitioners (recipients of the law) contend that the Filipino flag is an image within a
religious definition while the flag salute is a religious ceremony which violates their
right to religion. The Supreme Court held that:
While legal formalists see their strict and technical adherence in the
interpretation of the law as a virtue, some critics see this as a ruthless way of
unwittingly promoting injustice. Critics see in legal formalism a false
dichotomy or separation between law and social/human realities. Legal
formalists insist that legislators make laws through the democratic process,
9 See Gerona et al., v. Secretary of Education., 106 Philo 2; Gil Balbuena, et al.,v Sec. of Education,
G.R. No. L-14283, November 29, 1960.
10 Ibid.
Legal Realism began in 1881 when Oliver Wendell Holmes, Jr. published
11 Gil Marvel Tabucanon, Legal Philosophy for Filipinos, a Case Study Approach
12 Holmes, O.W., The Path of the Law, 10 Harvard Law Review.
13 http://jurygeek.blogspot.com/2005/06/did-legal-formalism-mortally-wound.html
The Common Law attacking the orthodox view of law by stating the life
of the law has not been logic, it has been experience.
Legal Realism is the concept that the law, as a malleable and pliable body of
guidelines, should be enforced creatively and liberally in order that the law serves
good public policy and social interests. Legal realists see the legal world as a
means to promote justice and the protection of human rights. Legal realists often
believe that judges should develop and update law incrementally because they, as
the closest branch in touch with economic, social, and technological realities, should
and can adapt the law accordingly to meet those needs. They often believe judges
should have broad discretion and decide matters on an individual basis, because
legislatures are infamous for being slow or innate to act to such pressures for
change.
Legal Formalism and Legal Realism are two views which are at opposite ends
of the legal spectrum. On one end, with Legal Realism, we find no absolutes. Rulings
are dependent on the judge, their experiences, personal persuasions, and even how
they feel that particular day. It can also depend on who the participants in the case
are. Decisions should be made for the greater good. And if a judge perceives a
wrong that the legislature hasnt made right, they might create the law themselves.
On the other end, Legal Formalism believes that absolutes exist. Cases are
decided by specific rules, standards, and common meaning of the laws in force. The
judge's experiences, persuasions, and how he or she feels plays no rule in the
decision of the case. Legal Formalism is characterized by the rigid application of
legal rules on the facts of the case.
Legal Formalism
Perez, Raniros
Rodriguez, Mary Elizabeth Christine
Common Law
Submitted to:
Atty. Rochelle Dakanay-Galano
Submitted By:
Antoinette Valerie Yap Duque
Karen Villacarlos
DEFINITION
Common law, also known as case law or precedent, is law developed
by judges through decisions of courts and similar tribunals, as opposed to
statutes adopted through the legislative process or regulations issued by the
executive branch
A "common law system" is a legal system that gives great precedential
weight to common law, on the principle that it is unfair to treat similar facts
Before 1873, England had two parallel court systems: courts of "law"
that could only award money damages and recognized only the legal owner
of property, and courts of "equity" (courts of chancery) that could issue
injunctive relief (that is, a court order to a party to do something, give
something to someone, or stop doing something) and recognized trusts of
property. This split propagated to many of the colonies, including the United
States.
For most purposes, most jurisdictions, including the U.S. federal system and
most states, have merged the two courts. Additionally, even before the
separate courts were merged, most courts were permitted to apply both law
and equity, though under potentially different procedural law. Nonetheless,
the historical distinction between "law" and "equity" remains important today
when the case involves issues such as the following:
Legal Philosophy
Written
critics of Wolff, and there were strong doses of Aristotelianism and Pietism
represented in the philosophy faculty as well. Kant's favorite teacher was Martin
Knutzen (17131751), a Pietist who was heavily influenced by both Wolff and the
English philosopher John Locke (16321704). Knutzen introduced Kant to the work of
Isaac Newton (16421727), and his influence is visible in Kant's first published work,
Thoughts on the True Estimation of Living Forces (1747), which was a critical
attempt to mediate a dispute in natural philosophy between Leibnizians and
Newtonians over the proper measurement of force.
After college Kant spent six years as a private tutor to young children outside
Knigsberg. By this time both of his parents had died and Kant's finances were not
yet secure enough for him to pursue an academic career. He finally returned to
Knigsberg in 1754 and began teaching at the Albertina the following year. For the
next four decades Kant taught philosophy there, until his retirement from teaching
in 1796 at the age of seventy-two.
Kant had a burst of publishing activity in the years after he returned from working
as a private tutor. In 1754 and 1755 he published three scientific works one of
which, Universal Natural History and Theory of the Heavens (1755), was a major
book in which, among other things, he developed what later became known as the
nebular hypothesis about the formation of the solar system. Unfortunately, the
printer went bankrupt and the book had little immediate impact. To secure
qualifications for teaching at the university, Kant also wrote two Latin dissertations:
the first, entitled Concise Outline of Some Reflections on Fire (1755), earned him the
Magister degree; and the second, New Elucidation of the First Principles of
Metaphysical Cognition (1755), entitled him to teach as an unsalaried lecturer. The
following year he published another Latin work, The Employment in Natural
Philosophy of Metaphysics Combined with Geometry, of Which Sample I Contains
the Physical Monadology (1756), in hopes of succeeding Knutzen as associate
professor of logic and metaphysics, though Kant failed to secure this position. Both
the New Elucidation, which was Kant's first work concerned mainly with
metaphysics, and the Physical Monadology further develop the position on the
interaction of finite substances that he first outlined in Living Forces. Both works
depart from Leibniz-Wolffian views, though not radically. The New Elucidation in
particular shows the influence of Christian August Crusius (17151775), a German
critic of Wolff.
As an unsalaried lecturer at the Albertina Kant was paid directly by the students
who attended his lectures, so he needed to teach an enormous amount and to
attract many students in order to earn a living. Kant held this position from 1755 to
1770, during which period he would lecture an average of twenty hours per week on
logic, metaphysics, and ethics, as well as mathematics, physics, and physical
geography. In his lectures Kant used textbooks by Wolffian authors such as
Alexander Gottlieb Baumgarten (17141762) and Georg Friedrich Meier (1718
1777), but he followed them loosely and used them to structure his own reflections,
which drew on a wide range of ideas of contemporary interest. These ideas often
stemmed from British sentimentalist philosophers such as David Hume (17111776)
and Francis Hutcheson (16941747), some of whose texts were translated into
German in the mid-1750's; and from the Swiss philosopher Jean-Jacques Rousseau
(17121778), who published a flurry of works in the early 1760's. From early in his
career Kant was a popular and successful lecturer. He also quickly developed a local
reputation as a promising young intellectual and cut a dashing figure in Knigsberg
society.
After several years of relative quiet, Kant unleashed another burst of publications in
17621764, including five philosophical works. The False Subtlety of the Four
Syllogistic Figures (1762) rehearses criticisms of Aristotelian logic that were
developed by other German philosophers. The Only Possible Argument in Support of
a Demonstration of the Existence of God (17623) is a major book in which Kant
drew on his earlier work in Universal History and New Elucidation to develop an
original argument for God's existence as a condition of the internal possibility of all
things, while criticizing other arguments for God's existence. The book attracted
several positive and some negative reviews. In 1762 Kant also submitted an essay
entitled Inquiry Concerning the Distinctness of the Principles of Natural Theology
and Morality to a prize competition by the Prussian Royal Academy, though Kant's
submission took second prize to Moses Mendelssohn's winning essay (and was
published with it in 1764). Kant's Prize Essay, as it is known, departs more
significantly from Leibniz-Wolffian views than his earlier work and also contains his
first extended discussion of moral philosophy in print. The Prize Essay draws on
British sources to criticize German rationalism in two respects: first, drawing on
Newton, Kant distinguishes between the methods of mathematics and philosophy;
and second, drawing on Hutcheson, he claims that an unanalysable feeling of the
good supplies the material content of our moral obligations, which cannot be
demonstrated in a purely intellectual way from the formal principle of perfection
alone (2:299). These themes reappear in the Attempt to Introduce the Concept of
Negative Magnitudes into Philosophy (1763), whose main thesis, however, is that
the real opposition of conflicting forces, as in causal relations, is not reducible to the
logical relation of contradiction, as Leibnizians held. In Negative Magnitudes Kant
also argues that the morality of an action is a function of the internal forces that
motivate one to act, rather than of the external (physical) actions or their
consequences. Finally, Observations on the Feeling of the Beautiful and the Sublime
(1764) deals mainly with alleged differences in the tastes of men and women and of
people from different cultures. After it was published, Kant filled his own interleaved
copy of this book with (often unrelated) handwritten remarks, many of which reflect
the deep influence of Rousseau on his thinking about moral philosophy in the mid1760's.
These works helped to secure Kant a broader reputation in Germany, but for the
most part they were not strikingly original. Like other German philosophers at the
time, Kant's early works are generally concerned with using insights from British
empiricist authors to reform or broaden the German rationalist tradition without
radically undermining its foundations. While some of his early works tend to
emphasize rationalist ideas, others have a more empiricist emphasis. During this
time Kant was striving to work out an independent position, but before the 1770's
his views remained fluid.
In 1766 Kant published his first work concerned with the possibility of metaphysics,
which later became a central topic of his mature philosophy. Dreams of a Spirit-Seer
Elucidated by Dreams of Metaphysics, which he wrote soon after publishing a short
Essay on Maladies of the Mind (1764), was occasioned by Kant's fascination with the
Swedish visionary Emanuel Swedenborg (16881772), who claimed to have insight
into a spirit world that enabled him to make a series of apparently miraculous
predictions. In this curious work Kant satirically compares Swedenborg's spiritvisions to the belief of rationalist metaphysicians in an immaterial soul that survives
death, and he concludes that philosophical knowledge of either is impossible
because human reason is limited to experience. The skeptical tone of Dreams is
tempered, however, by Kant's suggestion that moral faith nevertheless supports
belief in an immaterial and immortal soul, even if it is not possible to attain
metaphysical knowledge in this domain (2:373).
In 1770, at the age of forty-six, Kant was appointed to the chair in logic and
metaphysics at the Albertina, after teaching for fifteen years as an unsalaried
lecturer and working since 1766 as a sublibrarian to supplement his income. Kant
was turned down for the same position in 1758. But later, as his reputation grew, he
declined chairs in philosophy at Erlangen (1769) and Jena (1770) in hopes of
obtaining one in Knigsberg. After Kant was finally promoted, he gradually extended
his repertoire of lectures to include anthropology (Kant's was the first such course in
Germany and became very popular), rational theology, pedagogy, natural right, and
even mineralogy and military fortifications. In order to inaugurate his new position,
Kant also wrote one more Latin dissertation: Concerning the Form and Principles of
the Sensible and Intelligible World (1770), which is known as the Inaugural
Dissertation.
The Inaugural Dissertation departs more radically from both Wolffian rationalism
and British sentimentalism than Kant's earlier work. Inspired by Crusius and the
Swiss natural philosopher Johann Heinrich Lambert (17281777), Kant distinguishes
between two fundamental powers of cognition, sensibility and understanding
(intelligence), where the Leibniz-Wolffians regarded understanding (intellect) as the
only fundamental power. Kant therefore rejects the rationalist view that sensibility is
only a confused species of intellectual cognition, and he replaces this with his own
view that sensibility is distinct from understanding and brings to perception its own
subjective forms of space and time a view that developed out of Kant's earlier
undoubtedly a law which imposes obligation upon me; but it does not at all
imply and still less command that I ought, merely on account of this
obligation, to limit my freedom to these very conditions. Reason in this
connection says only that it is restricted thus far by its idea, and may be
likewise thus limited in fact by others; and it lays this down as a postulate
which is not capable of further proof. As the object in view is not to teach
virtue, but to explain what right is, thus far the law of right, as thus laid
down, may not and should not be represented as a motive-principle of
action.
D. Right is Conjoined with the Title or Authority to Compel.
The resistance which is opposed to any hindrance of an effect is in reality
a furtherance of this effect and is in accordance with its accomplishment.
Now, everything that is wrong is a hindrance of freedom, according to
universal laws; and compulsion or constraint of any kind is a hindrance or
resistance made to freedom. Consequently, if a certain exercise of freedom is
itself a hindrance of the freedom that is according to universal laws, it is
wrong; and the compulsion of constraint which is opposed to it is right, as
being a hindering of a hindrance of freedom, and as being in accord with the
freedom which exists in accordance with universal laws. Hence, according to
the logical principle of contradiction, all right is accompanied with an implied
title or warrant to bring compulsion to bear on any one who may violate it in
fact.
Constitutional and Juridical Consequences arising from the Nature of
the Civil Union +Final Words and Conclusion (26-27): M
Constitutional and Juridical Consequences arising from the Nature of
the Civil Union.
A. Right of the Supreme
Revolution; Reform.
Power;
Treason;
Dethronement;
the supreme power in the state, must be regarded as already united under
one common legislative will, it cannot judge otherwise than as the present
supreme head of the state (summus imperans) wills. The question has been
raised as to whether an actual contract of subjection (pactum subjectionis
civilis) originally preceded the civil government as a fact; or whether the
power arose first, and the law only followed afterwards, or may have followed
in this order. But such questions, as regards the people already actually living
under the civil law, are either entirely aimless, or even fraught with subtle
danger to the state. For, should the subject, after having dug down to the
ultimate origin of the state, rise in opposition to the present ruling authority,
he would expose himself as a citizen, according to the law and with full right,
to be punished, destroyed, or outlawed. A law which is so holy and inviolable
that it is practically a crime even to cast doubt upon it, or to suspend its
operation for a moment, is represented of itself as necessarily derived from
some supreme, unblameable lawgiver. And this is the meaning of the maxim,
All authority is from God, which proposition does not express the historical
foundation of the civil constitution, but an ideal principle of the practical
reason. It may be otherwise rendered thus: It is a duty to obey the law of
the existing legislative power, be its origin what it may. Hence it follows,
that the supreme power in the state has only rights, and no (compulsory)
duties towards the subject. Further, if the ruler or regent, as the organ of the
supreme power, proceeds in violation of the laws, as in imposing taxes,
recruiting soldiers, and so on, contrary to the law of equality in the
distribution of the political burdens, the subject may oppose complaints and
objections (gravamina) to this injustice, but not active resistance. There
cannot even be an Article contained in the political constitution that would
make it possible for a power in the state, in case of the transgression of the
constitutional laws by the supreme authority, to resist or even to restrict it in
so doing. For, whoever would restrict the supreme power of the state must
have more, or at least equal, power as compared with the power that is so
restricted; and if competent to command the subjects to resist, such a one
would also have to be able to protect them, and if he is to be considered
capable of judging what is right in every case, he may also publicly order
resistance. But such a one, and not the actual authority, would then be the
supreme power; which is contradictory. The supreme sovereign power, then,
in proceeding by a minister who is at the same time the ruler of the state,
consequently becomes despotic; and the expedient of giving the people to
imagine when they have properly only legislative influence that they
act by their deputies by way of limiting the sovereign authority, cannot so
mask and disguise the actual despotism of such a government that it will not
appear in the measures and means adopted by the minister to carry out his
function. The people, while represented by their deputies in parliament,
under such conditions, may have in these warrantors of their freedom and
rights, persons who are keenly interested on their own account and their
families, and who look to such a minister for the benefit of his influence in
the army, navy, and public offices. And hence, instead of offering resistance
to the undue pretensions of the government whose public declarations
ought to carry a prior accord on the part of the people, which, however,
cannot be allowed in peace, they are rather always ready to play into the
hands of the government. Hence the so-called limited political constitution,
as a constitution of the internal rights of the state, is an unreality; and
instead of being consistent with right, it is only a principle of expediency. And
its aim is not so much to throw all possible obstacles in the way of a powerful
violator of popular rights by his arbitrary influence upon the government, as
rather to cloak it over under the illusion of a right of opposition conceded to
the people. Resistance on the part of the people to the supreme legislative
power of the state is in no case legitimate; for it is only by submission to the
universal legislative will, that a condition of law and order is possible. Hence
there is no right of sedition, and still less of rebellion, belonging to the
people. And least of all, when the supreme power is embodied in an
individual monarch, is there any justification, under the pretext of his abuse
of power, for seizing his person or taking away his life (monarchomachismus
sub specie tyrannicidii). The slightest attempt of this kind is high treason
(proditio eminens); and a traitor of this sort who aims at the overthrow of his
country may be punished, as a political parricide, even with death. It is the
duty of the people to bear any abuse of the supreme power, even then
though it should be considered to be unbearable. And the reason is that any
resistance of the highest legislative authority can never but be contrary to
the law, and must even be regarded as tending to destroy the whole legal
constitution. In order to be entitled to offer such resistance, a public law
would be required to permit it. But the supreme legislation would by such a
law cease to be supreme, and the people as subjects would be made
sovereign over that to which they are subject; which is a contradiction. And
the contradiction becomes more apparent when the question is put: Who is
to be the judge in a controversy between the people and the sovereign? For
the people and the sovereign are to be constitutionally or juridically regarded
as two different moral persons; but the question shows that the people would
then have to be the judge in their own cause.
The dethronement of a monarch may be also conceived as a voluntary
abdication of the crown, and a resignation of his power into the hands of the
people; or it might be a deliberate surrender of these without any assault on
the royal person, in order that the monarch may be relegated into private
life. But, however it happen, forcible compulsion of it, on the part of the
people, cannot be justified under the pretext of a right of necessity (casus
necessitatis); and least of all can the slightest right be shown for punishing
the sovereign on the ground of previous maladministration. For all that has
been already done in the quality of a sovereign must be regarded as done
outwardly by right; and, considered as the source of the laws, the sovereign
himself can do no wrong. Of all the abominations in the overthrow of a state
by revolution, even the murder or assassination of the monarch is not the
worst. For that may be done by the people out of fear, lest, if he is allowed to
live, he may again acquire power and inflict punishment upon them; and so it
may be done, not as an act of punitive justice, but merely from regard to
self-preservation. It is the formal execution of a monarch that horrifies a soul
filled with ideas of human right; and this feeling occurs again and again as of
as the mind realizes the scenes that terminated the fate of Charles I or Louis
XVI. Now how is this feeling to be explained? It is not a mere aesthetic
feeling, arising from the working of the imagination, nor from sympathy,
produced by fancying ourselves in the place of the sufferer. On the contrary,
it is a moral feeling arising from the entire subversion of all our notions of
right. Regicide, in short, is regarded as a crime which always remains such
and can never be expiated (crimen immortale, inexpiabile); and it appears to
resemble that sin which the theologians declare can neither be forgiven in
this world nor in the next. The explanation of this phenomenon in the human
mind appears to be furnished by the following reflections upon it; and they
even shed some light upon the principles of political right. Every
transgression of a law only can and must be explained as arising from a
maxim of the transgressor making such wrong-doing his rule of action; for
were it not committed by him as a free being, it could not be imputed to him.
But it is absolutely impossible to explain how any rational individual forms
such a maxim against the clear prohibition of the law-giving reason; for it is
only events which happen according to the mechanical laws of nature that
are capable of explanation. Now a transgressor or criminal may commit his
wrong-doing either according to the maxim of a rule supposed to be valid
objectively and universally, or only as an exception from the rule by
dispensing with its obligation for the occasion. In the latter case, he only
diverges from the law, although intentionally. He may, at the same time,
abhor his own transgression, and without formally renouncing his obedience
to the law only wish to avoid it. In the former case, however, he rejects the
perform an act of the executive itself. All that can rightly be allowed, is only a
negative resistance, amounting to an act of refusal on the part of the people
to concede all the demands which the executive may deem it necessary to
make in behoof of the political administration. And if this right were never
exercised, it would be a sure sign that the people were corrupted, their
representatives venal, the supreme head of the government despotic, and
his ministers practically betrayers of the people. Further, when on the
success of a revolution a new constitution has been founded, the
unlawfulness of its beginning and of its institution cannot release the
subjects from the obligation of adapting themselves, as good citizens, to the
new order of things; and they are not entitled to refuse honourably to obey
the authority that has thus attained the power in the state. A dethroned
monarch, who has survived such a revolution, is not to be called to account
on the ground of his former administration; and still less may he be punished
for it, when with drawing into the private life of a citizen he prefers his own
quiet and the peace of the state to the uncertainty of exile, with the intention
of maintaining his claims for restoration at all hazards, and pushing these
either by secret counter-revolution or by the assistance of other powers.
However, if he prefers to follow the latter course, his rights remain, because
the rebellion that drove him from his position was inherently unjust. But the
question then emerges as to whether other powers have the right to form
themselves into an alliance in behalf of such a dethroned monarch merely in
order not to leave the crime committed by the people unavenged, or to do
away with it as a scandal to all the states; and whether they are therefore
justified and called upon to restore by force to another state a formerly
existing constitution that has been removed by a revolution. The discussion
of this question, however, does not belong to this department of public right,
but to the following section, concerning the right of nations.
B. Land Rights. Secular and Church Lands, Rights of Taxation;
Finance; Police; Inspection.
Is the sovereign, viewed as embodying the legislative power, to be
regarded as the supreme proprietor of the soil, or only as the highest ruler of
the people by the laws? As the soil is the supreme condition under which it is
alone possible to have external things as ones own, its possible possession
and use constitute the first acquirable basis of external right. Hence it is that
all such rights must be derived from the sovereign as overlord and
paramount superior of the soil, or, as it may be better put, as the supreme
proprietor of the land (dominus territorii). The people, as forming the mass of
the subjects, belong to the sovereign as a people; not in the sense of his
being their proprietor in the way of real right, but as their supreme
commander or chief in the way of personal right. This supreme
proprietorship, however, is only an idea of the civil constitution, objectified to
represent, in accordance with juridical conceptions, the necessary union of
the private property of all the people under a public universal possessor. The
relation is so represented in order that it may form a basis for the
determination of particular rights in property. It does not proceed, therefore,
upon the principle of mere aggregation, which advances empirically from the
parts to the whole, but from the necessary formal principle of a division of
the soil according to conceptions of right. In accordance with this principle,
the supreme universal proprietor cannot have any private property in any
part of the soil; for otherwise he would make himself a private person.
Private property in the soil belongs only to the people, taken distributively
and not collectively; from which condition, however, a nomadic people must
be excepted as having no private property at all in the soil. The supreme
proprietor accordingly ought not to hold private estates, either for private
use or for the support of the court. For, as it would depend upon his own
pleasure how far these should extend, the state would be in danger of seeing
all property in the land taken into the hands of the government, and all the
subjects treated as bondsmen of the soil (glebae adscripti). As possessors
only of what was the private property of another, they might thus be
deprived of all freedom and regarded as serfs or slaves. Of the supreme
proprietor of the land, it may be said that he possesses nothing as his own,
except himself; for if he possessed things in the state alongside of others,
dispute and litigation would be possible with these others regarding those
things, and there would be no independent judge to settle the cause. But it
may also be said that he possesses everything; for he has the supreme right
of sovereignty over the whole people, to whom all external things severally
(divisim) belong; and as such he assigns distributively to every one what is
to be his. Hence there cannot be any corporation in the state, nor any class
or order, that as proprietors can transmit the land for a sole exclusive use to
the following generations for all time (ad infinitum), according to certain
fixed statutes. The state may annul and abrogate all such statutes at any
time, only under the condition of indemnifying survivors for their interests.
The order of knights, constituting the nobility regarded as a mere rank or
class of specially titled individuals, as well as the order of the clergy, called
the church, are both subject to this relation. They can never be entitled by
any hereditary privileges with which they may be favoured, to acquire an
absolute property in the soil transmissible to their successors. They can only
acquire the use of such property for the time being. If public opinion has
ceased, on account of other arrangements, to impel the state to protect itself
from negligence in the national defence by appeal to the military honour of
the knightly order, the estates granted on that condition may be recalled.
And, in like manner, the church lands or spiritualities may be reclaimed by
the state without scruple, if public opinion has ceased to impel the members
of the state to maintain masses for the souls of the dead, prayers for the
living, and a multitude of clergy, as means to protect themselves from
eternal fire. But in both cases, the condition of indemnifying existing
interests must be observed. Those who in this connection fall under the
movement of reform are not entitled to complain that their property is taken
from them; for the foundation of their previous possession lay only in the
opinion of the people, and it can be valid only so long as this opinion lasts. As
soon as this public opinion in favour of such institutions dies out, or is even
extinguished in the judgement of those who have the greatest claim by their
acknowledged merit to lead and represent it, the putative proprietorship in
question must cease, as if by a public appeal made regarding it to the state
(a rege male informato ad regem melius informandum). On this primarily
acquired supreme proprietorship in the land rests the right of the sovereign,
as universal proprietor of the country, to assess the private proprietors of the
soil, and to demand taxes, excise, and dues, or the performance of service to
the state such as may be required in war. But this is to be done so that it is
actually the people that assess themselves, this being the only mode of
proceeding according to laws of right. This may be effected through the
medium of the body of deputies who represent the people. It is also
permissible, in circumstances in which the state is in imminent danger, to
proceed by a forced loan, as a right vested in the sovereign, although this
may be a divergence from the existing law. Upon this principle is also
founded the right of administering the national economy, including the
finance and the police. The police has specially to care for the public safety,
convenience, and decency. As regards the last of these the feeling or
negative taste for public propriety it is important that it be not deadened
by such influences as begging, disorderly noises, offensive smells, public
prostitution (Venus vulgivaga), or other offences against the moral sense, as
it greatly facilitates the government in the task of regulating the life of the
people by law. For the preservation of the state there further belongs to it a
right of inspection (jus inspectionis), which entitles the public authority to
see that no secret society, political or religious, exists among the people that
can exert a prejudicial influence upon the public weal. Accordingly, when it is
required by the police, no such secret society may refuse to lay open its
constitution. But the visitation and search of private houses by the police can
only be justified in a case of necessity; and in every particular instance, it
must be authorized by a higher authority.
C. Relief of the Poor. Foundling Hospitals. The Church.
The sovereign, as undertaker of the duty of the people, has the right to
tax them for purposes essentially connected with their own preservation.
Such are, in particular, the relief of the poor, foundling asylums, and
ecclesiastical establishments, otherwise designated charitable or pious
foundations. 1. The people have in fact united themselves by their common
will into a society, which has to be perpetually maintained; and for this
purpose they have subjected themselves to the internal power of the state,
in order to preserve the members of this society even when they are not able
to support themselves. By the fundamental principle of the state, the
government is justified and entitled to compel those who are able, to furnish
the means necessary to preserve those who are not themselves capable of
providing for the most necessary wants of nature. For the existence of
persons with property in the state implies their submission under it for
protection and the provision by the state of what is necessary for their
existence; and accordingly the state founds a right upon an obligation on
their part to contribute of their means for the preservation of their fellow
citizens. This may be carried out by taxing the property or the commercial
industry of the citizens, or by establishing funds and drawing interest from
them, not for the wants of the state as such, which is rich, but for those of
the people. And this is not to be done merely by voluntary contributions, but
by compulsory exactions as state-burdens, for we are here considering only
the right of the state in relation to the people. Among the voluntary modes of
raising such contributions, lotteries ought not to be allowed, because they
increase the number of those who are poor, and involve danger to the public
property. It may be asked whether the relief of the poor ought to be
administered out of current contributions, so that every age should maintain
its own poor; or whether this were better done by means of permanent funds
and charitable institutions, such as widows homes, hospitals, etc.? And if the
former method is the better, it may also be considered whether the means
necessary are to be raised by a legal assessment rather than by begging,
which is generally nigh akin to robbing. The former method must in reality be
regarded as the only one that is conformable to the right of the state, which
cannot withdraw its connection from any one who has to live. For a legal
current provision does not make the profession of poverty a means of gain
for the indolent, as is to be feared is the case with pious foundations when
they grow with the number of the poor; nor can it be charged with being an
unjust or unrighteous burden imposed by the government on the people. 2.
The state has also a right to impose upon the people the duty of preserving
children exposed from want or shame, and who would otherwise perish; for it
cannot knowingly allow this increase of its power to be destroyed, however
unwelcome in some respects it may be. But it is a difficult question to
determine how this may most justly be carried out. It might be considered
whether it would not be right to exact contributions for this purpose from the
unmarried persons of both sexes who are possessed of means, as being in
part responsible for the evil; and further, whether the end in view would be
best carried out by foundling hospitals, or in what other way consistent with
right. But this is a problem of which no solution has yet been offered that
does not in some measure offend against right or morality. 3. The church is
here regarded as an ecclesiastical establishment merely, and as such it must
be carefully distinguished from religion, which as an internal mode of feeling
lies wholly beyond the sphere of the action of the civil power. Viewed as an
institution for public worship founded for the people to whose opinion or
conviction it owes its origin the church establishment responds to a real
want in the state. This is the need felt by the people to regard themselves as
also subjects of a Supreme Invisible Power to which they must pay homage,
and which may of be brought into a very undesirable collision with the civil
power. The state has therefore a right in this relation; but it is not to be
regarded as the right of constitutional legislation in the church, so as to
organize it as may seem most advantageous for itself, or to prescribe and
command its faith and ritual forms of worship (ritus); for all this must be left
entirely to the teachers and rulers which the church has chosen for itself. The
function of the state in this connection, only includes the negative right of
regulating the influence of these public teachers upon the visible political
commonwealth, that it may not be prejudicial to the public peace and
tranquillity. Consequently the state has to take measures, on occasion of any
internal conflict in the church, or on occasion of any collision of the several
churches with each other, that civil concord is not endangered; and this right
falls within the province of the police. It is beneath the dignity of the
supreme power to interpose in determining what particular faith the church
shall profess, or to decree that a certain faith shall be unalterably held, and
that the church may not reform itself. For in doing so, the supreme power
would be mixing itself up in a scholastic wrangle, on a footing of equality
with its subjects; the monarch would be making himself a priest; and the
churchmen might even reproach the supreme power with understanding
nothing about matters of faith. Especially would this hold in respect of any
prohibition of internal reform in the church; for what the people as a whole
cannot determine upon for themselves cannot be determined for the people
by the legislator. But no people can ever rationally determine that they will
never advance farther in their insight into matters of faith, or resolve that
they will never reform the institutions of the church; because this would be
opposed to the humanity in their own persons and to their highest rights.
And therefore the supreme power cannot of itself resolve and decree in these
matters for the people. As regards the cost of maintaining the ecclesiastical
establishment, for similar reasons this must be derived not from the public
funds of the state, but from the section of the people who profess the
particular faith of the church; and thus only ought it to fall as a burden on the
community.
D. The Right of Assigning Offices and Dignities in the State.
The right of the supreme authority in the state also includes: 1. The
distribution of offices, as public and paid employments; 2. The conferring of
dignities, as unpaid distinctions of rank, founded merely on honour, but
establishing a gradation of higher and lower orders in the political scale; the
latter, although free in themselves, being under obligation determined by the
public law to obey the former so far as they are also entitled to command; 3.
Besides these relatively beneficent rights, the supreme power in the state is
also invested with the right of administering punishment. As regards civil
offices, the question arises as to whether the sovereign has the right, after
bestowing an office on an individual, to take it again away at his mere
pleasure, without any crime having been committed by the holder of the
office. I say, No. For what the united will of the people would never resolve,
regarding their civil officers, cannot (constitutionally) be determined by the
sovereign regarding them. The people have to bear the cost incurred by the
appointment of an official, and undoubtedly it must be their will that any one
in office should be completely competent for its duties. But such competency
can only be acquired by a long preparation and training, and this process
would necessarily occupy the time that would be required for acquiring the
means of support by a different occupation. Arbitrary and frequent changes
would therefore, as a rule, have the effect of filling offices with functionaries
who have not acquired the skill required for their duties, and whose
judgements had not attained maturity by practice. All this is contrary to the
purpose of the state. And besides it is requisite in the interest of the people
that it should be possible for every individual to rise from a lower office to
the higher offices, as these latter would otherwise fall into incompetent
hands, and that competent officials generally should have some guarantee of
life-long provision. Civil dignities include not only such as are connected with
a public office, but also those which make the possessors of them, without
any accompanying services to the state, members of a higher class or rank.
The latter constitute the nobility, whose members are distinguished from the
common citizens who form the mass of the people. The rank of the nobility is
inherited by male descendants; and these again communicate it to wives
who are not nobly born. Female descendants of noble families, however, do
not communicate their rank to husbands who are not of noble birth, but they
descend themselves into the common civil status of the people. This being
so, the question then emerges as to whether the sovereign has the right to
found a hereditary rank and class, intermediate between himself and the
other citizens? The import of this question does not turn on whether it is
conformable to the prudence of the sovereign, from regard to his own and
the peoples interests, to have such an institution; but whether it is in
accordance with the right of the people that they should have a class of
persons above them, who, while being subjects like themselves, are yet born
as their commanders, or at least as privileged superiors? The answer to this
question, as in previous instances, is to be derived from the principle that
what the people, as constituting the whole mass of the subjects, could not
determine regarding themselves and their associated citizens, cannot be
constitutionally determined by the sovereign regarding the people. Now a
hereditary nobility is a rank which takes precedence of merit and is hoped for
without any good reason a thing of the imagination without genuine
reality. For if an ancestor had merit, he could not transmit it to his posterity,
but they must always acquire it for themselves. Nature has in fact not so
arranged that the talent and will which give rise to merit in the state, are
hereditary. And because it cannot be supposed of any individual that he will
throw away his freedom, it is impossible that the common will of all the
people should agree to such a groundless prerogative, and hence the
sovereign cannot make it valid. It may happen, however, that such an
anomaly as that of subjects who would be more than citizens, in the manner
of born officials, or hereditary professors, has slipped into the mechanism of
government in olden times, as in the case of the feudal system, which was
almost entirely organized with reference to war. Under such circumstances,
the state cannot deal otherwise with this error of a wrongly instituted rank in
an absolute duty naturally incumbent upon parents; and in case the parents
be slaves, it devolves upon their masters or owners, who, in undertaking the
possession of such subjects, have also made themselves responsible for the
performance of their duties.
E. The Right of Punishing and of Pardoning.
I. The Right of Punishing.
The right of administering punishment is the right of the sovereign as the
supreme power to inflict pain upon a subject on account of a crime
committed by him. The head of the state cannot therefore be punished; but
his supremacy may be withdrawn from him. Any transgression of the public
law which makes him who commits it incapable of being a citizen, constitutes
a crime, either simply as a private crime (crimen), or also as a public crime
(crimen publicum). Private crimes are dealt with by a civil court; public
crimes by a criminal court. Embezzlement or speculation of money or goods
entrusted in trade, fraud in purchase or sale, if done before the eyes of the
party who suffers, are private crimes. On the other hand, coining false
money or forging bills of exchange, theft, robbery, etc., are public crimes,
because the commonwealth, and not merely some particular individual, is
endangered thereby. Such crimes may be divided into those of a base
character (indolis abjectae) and those of a violent character (indolis
violentiae). Judicial or juridical punishment (poena forensis) is to be
distinguished from natural punishment (poena naturalis), in which crime as
vice punishes itself, and does not as such come within the cognizance of the
legislator. Juridical punishment can never be administered merely as a
means for promoting another good either with regard to the criminal himself
or to civil society, but must in all cases be imposed only because the
individual on whom it is inflicted has committed a crime. For one man ought
never to be dealt with merely as a means subservient to the purpose of
another, nor be mixed up with the subjects of real right. Against such
treatment his inborn personality has a right to protect him, even although he
may be condemned to lose his civil personality. He must first be found guilty
and punishable, before there can be any thought of drawing from his
punishment any benefit for himself or his fellow-citizens. The penal law is a
categorical imperative; and woe to him who creeps through the serpentwindings of utilitarianism to discover some advantage that may discharge
him from the justice of punishment, or even from the due measure of it,
according to the Pharisaic maxim: It is better that one man should die than
that the whole people should perish. For if justice and righteousness perish,
human life would no longer have any value in the world. What, then, is to be
said of such a proposal as to keep a criminal alive who has been condemned
to death, on his being given to understand that, if he agreed to certain
dangerous experiments being performed upon him, he would be allowed to
survive if he came happily through them? It is argued that physicians might
thus obtain new information that would be of value to the commonweal. But
a court of justice would repudiate with scorn any proposal of this kind if
made to it by the medical faculty; for justice would cease to be justice, if it
were bartered away for any consideration whatever. But what is the mode
and measure of punishment which public justice takes as its principle and
standard? It is just the principle of equality, by which the pointer of the scale
of justice is made to incline no more to the one side than the other. It may be
rendered by saying that the undeserved evil which any one commits on
another is to be regarded as perpetrated on himself. Hence it may be said:
If you slander another, you slander yourself; if you steal from another, you
steal from yourself; if you strike another, you strike yourself; if you kill
another, you kill yourself. This is the right of retaliation (jus talionis); and,
properly understood, it is the only principle which in regulating a public
court, as distinguished from mere private judgement, can definitely assign
both the quality and the quantity of a just penalty. All other standards are
wavering and uncertain; and on account of other considerations involved in
them, they contain no principle conformable to the sentence of pure and
strict justice. It may appear, however, that difference of social status would
not admit the application of the principle of retaliation, which is that of like
with like. But although the application may not in all cases be possible
according to the letter, yet as regards the effect it may always be attained in
practice, by due regard being given to the disposition and sentiment of the
parties in the higher social sphere. Thus a pecuniary penalty on account of a
verbal injury may have no direct proportion to the injustice of slander; for
one who is wealthy may be able to indulge himself in this offence for his own
gratification. Yet the attack committed on the honour of the party aggrieved
may have its equivalent in the pain inflicted upon the pride of the aggressor,
especially if he is condemned by the judgement of the court, not only to
retract and apologize, but to submit to some meaner ordeal, as kissing the
hand of the injured person. In like manner, if a man of the highest rank has
violently assaulted an innocent citizen of the lower orders, he may be
condemned not only to apologize but to undergo a solitary and painful
imprisonment, whereby, in addition to the discomfort endured, the vanity of
the offender would be painfully affected, and the very shame of his position
would constitute an adequate retaliation after the principle of like with like.
But how then would we render the statement: If you steal from another, you
steal from yourself? In this way, that whoever steals anything makes the
property of all insecure; he therefore robs himself of all security in property,
according to the right of retaliation. Such a one has nothing, and can acquire
nothing, but he has the will to live; and this is only possible by others
supporting him. But as the state should not do this gratuitously, he must for
this purpose yield his powers to the state to be used in penal labour; and
thus he falls for a time, or it may be for life, into a condition of slavery. But
whoever has committed murder, must die. There is, in this case, no juridical
substitute or surrogate, that can be given or taken for the satisfaction of
justice. There is no likeness or proportion between life, however painful, and
death; and therefore there is no equality between the crime of murder and
the retaliation of it but what is judicially accomplished by the execution of
the criminal. His death, however, must be kept free from all maltreatment
that would make the humanity suffering in his person loathsome or
abominable. Even if a civil society resolved to dissolve itself with the consent
of all its members as might be supposed in the case of a people inhabiting
an island resolving to separate and scatter themselves throughout the whole
world the last murderer lying in the prison ought to be executed before the
resolution was carried out. This ought to be done in order that every one may
realize the desert of his deeds, and that blood-guiltiness may not remain
upon the people; for otherwise they might all be regarded as participators in
the murder as a public violation of justice. The equalization of punishment
with crime is therefore only possible by the cognition of the judge extending
even to the penalty of death, according to the right of retaliation. This is
manifest from the fact that it is only thus that a sentence can be pronounced
over all criminals proportionate to their internal wickedness; as may be seen
by considering the case when the punishment of death has to be inflicted,
not on account of a murder, but on account of a political crime that can only
be punished capitally. A hypothetical case, founded on history, will illustrate
this. In the last Scottish rebellion there were various participators in it
such as Balmerino and others who believed that in taking part in the
rebellion they were only discharging their duty to the house of Stuart; but
there were also others who were animated only by private motives and
interests. Now, suppose that the judgement of the supreme court regarding
them had been this: that every one should have liberty to choose between
the punishment of death or penal servitude for life. In view of such an
alternative, I say that the man of honour would choose death, and the knave
would choose servitude. This would be the effect of their human nature as it
is; for the honourable man values his honour more highly than even life
itself, whereas a knave regards a life, although covered with shame, as
better in his eyes than not to be. The former is, without gainsaying, less
guilty than the other; and they can only be proportionately punished by
death being inflicted equally upon them both; yet to the one it is a mild
punishment when his nobler temperament is taken into account, whereas it
is a hard punishment to the other in view of his baser temperament. But, on
the other hand, were they all equally condemned to penal servitude for life,
the honourable man would be too severely punished, while the other, on
account of his baseness of nature, would be too mildly punished. In the
judgement to be pronounced over a number of criminals united in such a
conspiracy, the best equalizer of punishment and crime in the form of public
justice is death. And besides all this, it has never been heard of that a
criminal condemned to death on account of a murder has complained that
the sentence inflicted on him more than was right and just; and any one
would treat him with scorn if he expressed himself to this effect against it.
Otherwise it would be necessary to admit that, although wrong and injustice
are not done to the criminal by the law, yet the legislative power is not
entitled to administer this mode of punishment; and if it did so, it would be in
contradiction with itself. However many they may be who have committed a
murder, or have even commanded it, or acted as art and part in it, they
ought all to suffer death; for so justice wills it, in accordance with the idea of
the juridical power, as founded on the universal laws of reason. But the
number of the accomplices (correi) in such a deed might happen to be so
great that the state, in resolving to be without such criminals, would be in
danger of soon also being deprived of subjects. But it will not thus dissolve
itself, neither must it return to the much worse condition of nature, in which
there would be no external justice. Nor, above all, should it deaden the
sensibilities of the people by the spectacle of justice being exhibited in the
mere carnage of a slaughtering bench. In such circumstances the sovereign
must always be allowed to have it in his power to take the part of the judge
upon himself as a case of necessity and to deliver a judgement which,
instead of the penalty of death, shall assign some other punishment to the
criminals and thereby preserve a multitude of the people. The penalty of
deportation is relevant in this connection. Such a form of judgement cannot
be carried out according to a public law, but only by an authoritative act of
the royal prerogative, and it may only be applied as an act of grace in
individual cases. Against these doctrines, the Marquis Beccaria has given
forth a different view. Moved by the compassionate sentimentality of a
humane feeling, he has asserted that all capital punishment is wrong in itself
and unjust. He has put forward this view on the ground that the penalty of
death could not be contained in the original civil contract; for, in that case,
every one of the people would have had to consent to lose his life if be
murdered any of his fellow citizens. But, it is argued, such a consent is
impossible, because no one can thus dispose of his own life. All this is mere
sophistry and perversion of right. No one undergoes punishment because he
has willed to be punished, but because he has willed a punishable action; for
it is in fact no punishment when any one experiences what he wills, and it is
impossible for any one to will to be punished. To say, I will to be punished, if
I murder any one, can mean nothing more than, I submit myself along with
all the other citizens to the laws; and if there are any criminals among the
people, these laws will include penal laws. The individual who, as a colegislator, enacts penal law cannot possibly be the same person who, as a
subject, is punished according to the law; for, qua criminal, he cannot
possibly be regarded as having a voice in the legislation, the legislator being
rationally viewed as just and holy. If any one, then, enact a penal law against
himself as a criminal, it must be the pure juridically law-giving reason (homo
noumenon), which subjects him as one capable of crime, and consequently
as another person (homo phenomenon), along with all the others in the civil
union, to this penal law. In other words, it is not the people taken
distributively, but the tribunal of public justice, as distinct from the criminal,
that prescribes capital punishment; and it is not to be viewed as if the social
contract contained the promise of all the individuals to allow themselves to
be punished, thus disposing of themselves and their lives. For if the right to
punish must be grounded upon a promise of the wrongdoer, whereby he is to
be regarded as being willing to be punished, it ought also to be left to him to
find himself deserving of the punishment; and the criminal would thus be his
own judge. The chief error (proton pseudos) of this sophistry consists in
regarding the judgement of the criminal himself, necessarily determined by
his reason, that he is under obligation to undergo the loss of his life, as a
judgement that must be grounded on a resolution of his will to take it away
himself; and thus the execution of the right in question is represented as
united in one and the same person with the adjudication of the right. There
are, however, two crimes worthy of death, in respect of which it still remains
doubtful whether the legislature have the right to deal with them capitally. It
is the sentiment of honour that induces their perpetration. The one originates
in a regard for womanly honour, the other in a regard for military honour;
and in both cases there is a genuine feeling of honour incumbent on the
individuals as a duty. The former is the crime of maternal infanticide
Legal
Written
Nationality: German
Era: 18th Century Philosophy
Region: Western Philosophy
Main interests: Epistemology, Metaphysics, Ethics, Logic
Philosophy of Law: Categorical Imperative, Science of Right
Influenced by: Wolff, Baumgarten, Tetens, Plato, Aristotle, Epicurus,
Ibn Tufail, Hutcheson, Empiricus, Montaigne, Hume, Pythagoras,
Descartes, Malebranche, Spinoza, Leibniz, Locke, Berkeley, Rousseau,
Newton, Emanuel Swedenborg, Shaftesbury
Categorical Imperative (11-14): A
In both the Groundwork of the Metaphysics of Morals and the Critique of
Practical Reason, Kant also gives a more detailed argument for the
conclusion that morality and freedom reciprocally imply one another, which
is sometimes called the reciprocity thesis (Allison 1990). On this view, to act
morally is to exercise freedom, and the only way to fully exercise freedom is
to act morally. Kant's arguments for this view differ in these texts, but the
general structure of his argument in the Critique of Practical Reason may be
summarized as follows.
First, it follows from the basic idea of having a will that to act at all is to act
on some principle, or what Kant calls a maxim. A maxim is a subjective rule
or policy of action: it says what you are doing and why. Kant gives as
examples the maxims to let no insult pass unavenged and to increase my
wealth by every safe means (5:19, 27). We may be unaware of our maxims,
we may not act consistently on the same maxims, and our maxims may not
be consistent with one another. But Kant holds that since we are rational
beings our actions always aim at some sort of end or goal, which our maxim
expresses. The goal of an action may be something as basic as gratifying a
desire, or it may be something more complex such as becoming a doctor or a
lawyer. In any case, the causes of our actions are never our desires or
impulses, on Kant's view. If I act to gratify some desire, then I choose to act
on a maxim that specifies the gratification of that desire as the goal of my
action. For example, if I desire some coffee, then I may act on the maxim to
go to a cafe and buy some coffee in order to gratify that desire.
always choose to act on a maxim even when that maxim specifies the
satisfaction of a desire as the goal of our action, it also follows that we are
always free in the sense that we freely choose our maxims. Nevertheless, our
actions are not free in the sense of being autonomous if we choose to act
only on material principles, because in that case we do not give the law to
ourselves, but instead we choose to allow nature in us (our desires) to
determine the law for our actions.
Finally, the only way to act freely in the full sense of exercising autonomy is
therefore to act on formal principles or categorical imperatives, which is also
to act morally. Kant does not mean that acting autonomously requires that
we take no account of our desires, because that would be impossible (5:25,
61). Rather, he holds that we typically formulate maxims with a view to
satisfying our desires, but that as soon as we draw up maxims of the will for
ourselves we become immediately conscious of the moral law (5:29). This
immediate consciousness of the moral law takes the following form:
I have, for example, made it my maxim to increase my wealth by every safe
means. Now I have a deposit in my hands, the owner of which has died and
left no record of it. This is, naturally, a case for my maxim. Now I want only to
know whether that maxim could also hold as a universal practical law. I
therefore apply the maxim to the present case and ask whether it could
indeed take the form of a law, and consequently whether I could through my
maxim at the same time give such a law as this: that everyone may deny a
deposit which no one can prove has been made. I at once become aware
that such a principle, as a law, would annihilate itself since it would bring it
about that there would be no deposits at all. (5:27)
In other words, to assess the moral permissibility of my maxim, I ask whether
everyone could act on it, or whether it could be willed as a universal law. The
issue is not whether it would be good if everyone acted on my maxim, or
whether I would like it, but only whether it would be possible for my maxim
to be willed as a universal law. This gets at the form, not the matter or
content, of the maxim. A maxim has morally permissible form, for Kant, only
if it could be willed as a universal law. If my maxim fails this test, as this one
does, then it is morally impermissible for me to act on it.
If my maxim passes the universal law test, then it is morally permissible for
me to act on it, but I fully exercise my autonomy only if my fundamental
reason for acting on this maxim is that it is morally permissible or required
Give every one his own, it would express an absurdity, for we cannot give
any one what he already has. If it is to have a definite meaning, it must
therefore run thus: Enter into a state in which every one can have what is
his own secured against the action of every other (lex justitiae).
These three classical formulae, at the same time, represent principles
which suggest a division of the system of juridical duties into internal duties,
external duties, and those connecting duties which contain the latter as
deduced from the principle of the former by subsumption.
B. Universal Division of Rights.
I. Natural Right and Positive Right. The system of rights, viewed as a
scientific system of doctrines, is divided into natural right and positive right.
Natural right rests upon pure rational principles a priori; positive or statutory
right is what proceeds from the will of a legislator. II. Innate Right and
Acquired Right. The system of rights may again be regarded in reference to
the implied powers of dealing morally with others as bound by obligations,
that is, as furnishing a legal title of action in relation to them. Thus viewed,
the system is divided into innate right and acquired right. Innate right is that
right which belongs to every one by nature, independent of all juridical acts
of experience. Acquired right is that right which is founded upon such
juridical acts. Innate right may also be called the internal mine and thine
(meum vel tuum internum) for external right must always be acquired.
There is only one Innate Right, the Birthright of Freedom.
Freedom is independence of the compulsory will of another; and in so far
as it can coexist with the freedom of all according to a universal law, it is the
one sole original, inborn right belonging to every man in virtue of his
humanity. There is, indeed, an innate equality belonging to every man which
consists in his right to be independent of being bound by others to anything
more than that to which he may also reciprocally bind them. It is,
consequently, the inborn quality of every man in virtue of which he ought to
be his own master by right (sui juris). There is, also, the natural quality of
justness attributable to a man as naturally of unimpeachable right (justi),
because be has done no wrong to any one prior to his own juridical actions.
And, further, there is also the innate right of common action on the part of
every man, so that he may do towards others what does not infringe their
rights or take away anything that is theirs unless they are willing to
appropriate it; such merely to communicate thought, to narrate anything, or
to promise something whether truly and honestly, or untruly and dishonestly
(veriloquim aut falsiloquim), for it rests entirely upon these others whether
they will believe or trust in it or not. [It is customary to designate every
untruth that is spoken intentionally as such, although it may be in a frivolous
manner a lie, or falsehood (mendacium), because it may do harm, at least in
so far as any one who repeats it in good faith may be made a laughing-stock
of to others on account of his easy credulity. But in the juridical sense, only
that untruth is called a lie which immediately infringes the right of another,
such as a false allegation of a contract having been concluded, when the
allegation is put forward in order to deprive some one of what is his
(falsiloquim dolosum). This distinction of conceptions so closely allied is not
without foundation; because on the occasion of a simple statement of ones
thoughts, it is always free for another to take them as he may; and yet the
resulting repute, that such a one is a man whose word cannot be trusted,
comes so close to the opprobrium of directly calling him a liar, that the
boundary-line separating what, in such a case, belongs to jurisprudence, and
what is special to ethics, can hardly be otherwise drawn.]
But all these rights or titles are already included in the principle of innate
freedom, and are not really distinguished from it, even as dividing members
under a higher species of right.
The reason why such a division into separate rights has been introduced
into the system of natural right, viewed as including all that is innate, was
not without a purpose. Its object was to enable proof to be more readily put
forward in case of any controversy arising about an acquired right, and
questions emerging either with reference to a fact that might be in doubt, or,
if that were established, in reference to a right under dispute. For the party
repudiating an obligation, and on whom the burden of proof (onus probandi)
might be incumbent, could thus methodically refer to his innate right of
freedom as specified under various relations in detail, and could therefore
found upon them equally as different titles of right. In the relation of innate
right, and consequently of the internal mine and thine, there is therefore not
rights, but only one right. And, accordingly, this highest division of rights into
innate and acquired, which evidently consists of two members extremely
unequal in their contents is properly placed in the introduction; and the
subdivisions of the science of right may be referred in detail to the external
mine and thine.
First Part. Private Right. The System of those Laws Which Require
No External Promulgation.
I. Of the Mode of Having Anything External as Ones Own.
1. The Meaning of Mine in Right (Meum Juris).
Anything is Mine by right, or is rightfully mine, when I am so connected
with it, that if any other person should make use of it without my consent, he
would do me a lesion or injury. The subjective condition of the use of
anything is possession of it. An external thing, however as such could only be
mine, if I may assume it to be possible that I can be wronged by the use
which another might make of it when it is not actually in my possession.
Hence it would be a contradiction to have anything external as ones own,
were not the conception of possession capable of two different meanings, as
sensible possession that is perceivable by the senses, and rational
possession that is perceivable only by the intellect. By the former is to be
understood a physical possession, and by the latter, a purely juridical
possession of the same object. The description of an object as external to
me may signify either that it is merely different and distinct from me as a
subject, or that it is also a thing placed outside of me, and to be found
elsewhere in space or time. Taken in the first sense, the term possession
signifies rational possession; and, in the second sense, it must mean
Reason wills that this shall be recognised as a valid principle, and it does so
as practical reason; and it is enabled by means of this postulate a priori to
enlarge its range of activity in practice.
3. Possession and Ownership.
Any one who would assert the right to a thing as his must be in possession of
it as an object. Were he not its actual possessor or owner, he could not be
wronged or injured by the use which another might make of it without his
consent. For, should anything external to him, and in no way connected with
him by right, affect this object, it could not affect himself as a subject, nor do
him any wrong, unless he stood in a relation of ownership to it.
equally valid for the other, as if it were so by mutual agreement. Uti partes
de jure suo disponunt, ita jus est. But generally they must be considered as
being in the highest state of wrong, as being and willing to be in a condition
which is not juridical, and in which, therefore, no one can be secured against
violence, in the possession of his own.
The distinction between what is only formally and what is also materially
wrong, and unjust, finds frequent application in the science of right. An
enemy who, on occupying a besieged fortress, instead of honourably fulfilling
the conditions of a capitulation, maltreats the garrison on marching out, or
otherwise violates the agreement, cannot complain of injury or wrong if on
another occasion the same treatment is inflicted upon themselves. But, in
fact, all such actions fundamentally involve the commission of wrong and
injustice, in the highest degree; because they take all validity away from the
conception of right, and give up everything, as it were by law itself, to
savage violence, and thus overthrow the rights of men generally.
Second Part. Public Right. The System of those Laws which Require
Public Promulgation. The Principles of Right in Civil Society.
43. Definition and Division of Public Right.
Public right embraces the whole of the laws that require to be universally
promulgated in order to produce juridical state of society. It is therefore a
system of those laws that are requisite for a people as a multitude of men
forming a nation, or for a number of nations, in their relations to each other.
Men and nations, on account of their mutual influence on one another,
require a juridical constitution uniting them under one will, in order that they
may participate in what is right. This relation of the individuals of a nation to
each other constitutes the civil union in the social state; and, viewed as a
whole in relation to its constituent members, it forms the political state
(civitas). 1. The state, as constituted by the common interest of all to live in
a juridical union, is called, in view of its form, the commonwealth or the
republic in the wider sense of the term (res publica latius sic dicta). The
principles of right in this sphere thus constitute the first department of public
right as the right of the state (jus civitatis) or national right. 2. The state,
again, viewed in relation to other peoples, is called a power (potentia),
whence arises the idea of potentates. Viewed in relation to the supposed
hereditary unity of the people composing it, the state constitutes a nation
(gens). Under the general conception of public right, in addition to the right
of the individual state, there thus arises another department of right,
constituting the right of nations (jus gentium) or international right. 3.
Further, as the surface of the earth is not unlimited in extent, but is
circumscribed into a unity, national right and international right necessarily
culminate in the idea of a universal right of mankind, which may be called
Cosmopolitical Right (jus cosmopoliticum). And national, international, and
cosmopolitical right are so interconnected, that, if any one of these three
possible forms of the juridical relation fails to embody the essential principles
that ought to regulate external freedom by law, the structure of legislation
reared by the others will also be undermined, and the whole system would at
last fall to pieces.
I. Right of the State and Constitutional Law. (Jus Civitatis).
44. Origin Of the Civil Union and Public Right.
It is not from any experience prior to the appearance of an external
authoritative legislation that we learn of the maxim of natural violence
among men and their evil tendency to engage in war with each other. Nor is
it assumed here that it is merely some particular historical condition or fact,
that makes public legislative constraint necessary; for however well-disposed
or favourable to right men may be considered to be of themselves, the
rational idea of a state of society not yet regulated by right, must be taken
as our starting-point. This idea implies that before a legal state of society can
be publicly established, individual men, nations, and states, can never be
safe against violence from each other; and this is evident from the
consideration that every one of his own will naturally does what seems good
and right in his own eyes, entirely independent of the opinion of others.
Hence, unless the institution of right is to be renounced, the first thing
incumbent on men is to accept the principle that it is necessary to leave the
state of nature, in which every one follows his own inclinations, and to form a
union of all those who cannot avoid coming into reciprocal communication,
and thus subject themselves in common to the external restraint of public
compulsory laws. Men thus enter into a civil union, in which every one has it
determined by law what shall be recognized as his; and this is secured to him
by a competent external power distinct from his own individuality. Such is the
primary obligation, on the part of all men, to enter into the relations of a civil
state of society. The natural condition of mankind need not, on this ground,
be represented as a state of absolute injustice, as if there could have been
no other relation originally among men but what was merely determined by
force. But this natural condition must be regarded, if it ever existed, as a
state of society that was void of regulation by right (status justitiae vacuus),
so that if a matter of right came to be in dispute (jus controversum), no
competent judge was found to give an authorized legal decision upon it. It is
therefore reasonable that any one should constrain another by force, to pass
from such a non-juridical state of life and enter within the jurisdiction of a
civil state of society. For, although on the basis of the ideas of right held by
individuals as such, external things may be acquired by occupancy or
contract, yet such acquisition is only provisory so long as it has not yet
obtained the sanction of a public law. Till this sanction is reached, the
condition of possession is not determined by any public distributive justice,
nor is it secured by any power exercising public right.
If men were not disposed to recognize any acquisition at all as rightful
even in a provisional way prior to entering into the civil state, this state of
society would itself be impossible. For the laws regarding the mine and thine
in the state of nature, contain formally the very same thing as they prescribe
in the civil state, when it is viewed merely according to rational conceptions:
only that in the forms of the civil state the conditions are laid down under
which the formal prescriptions of the state of nature attain realization
conformable to distributive justice. Were there, then, not even provisionally,
an external meum and tuum in the state of nature, neither would there be
any juridical duties in relation to them; and, consequently, there would be no
obligation to pass out of that state into another.
45. The Form of the State and its Three Powers.
A state (civitas) is the union of a number of men under juridical laws.
These laws, as such, are to be regarded as necessary a priori that is, as
following of themselves from the conceptions of external right generally
and not as merely established by statute. The form of the state is thus
involved in the idea of the state, viewed as it ought to be according to pure
principles of right; and this ideal form furnishes the normal criterion of every
real union that constitutes a commonwealth. Every state contains in itself
three powers, the universal united will of the people being thus personified in
a political triad. These are the legislative power, the executive power, and
the judiciary power. 1. The legislative power of the sovereignty in the state is
embodied in the person of the lawgiver; 2. the executive power is embodied
in the person of the ruler who administers the Law; and 3. the judiciary
power, embodied in the person of the judge, is the function of assigning
every one what is his own, according to the law (potestas legislatoria,
rectoria, et judiciaria). These three powers may be compared to the three
propositions in a practical syllogism: the major as the sumption laying down
the universal law of a will, the minor presenting the command applicable to
an action according to the law as the principle of the subsumption, and the
conclusion containing the sentence, or judgement of right, in the particular
case under consideration.
46. The Legislative Power and the Members of the State.
The legislative power, viewed in its rational principle, can only belong to
the united will of the people. For, as all right ought to proceed from this
power, it is necessary that its laws should be unable to do wrong to any one
whatever. Now, if any one individual determines anything in the state in
contradistinction to another, it is always possible that he may perpetrate a
wrong on that other; but this is never possible when all determine and
decree what is to be Law to themselves. Volenti non fit injuria. Hence it is
only the united and consenting will of all the people in so far as each of
them determines the same thing about all, and all determine the same thing
about each that ought to have the power of enacting law in the state. The
members of a civil society thus united for the purpose of legislation, and
thereby constituting a state, are called its citizens; and there are three
juridical attributes that inseparably belong to them by right. These are: 1.
constitutional freedom, as the right of every citizen to have to obey no other
law than that to which he has given his consent or approval; 2. civil equality,
as the right of the citizen to recognise no one as a superior among the
people in relation to himself, except in so far as such a one is as subject to
his moral power to impose obligations, as that other has power to impose
obligations upon him; and 3. political independence, as the light to owe his
existence and continuance in society not to the arbitrary will of another, but
to his own rights and powers as a member of the commonwealth, and,
consequently, the possession of a civil personality, which cannot be
represented by any other than himself.
The capability of voting by possession of the suffrage properly constitutes
active citizenship.
47. Dignities in the State and the Original Contract.
All these three powers in the state are dignities; and, as necessarily
arising out of the idea of the state and essential generally to the foundation
of its constitution, they are to be regarded as political dignities. They imply
the relation between a universal sovereign as head of the state which
according to the laws of freedom can be none other than the people itself
united into a nation and the mass of the individuals of the nation as
subjects. The former member of the relation is the ruling power, whose
function is to govern (imperans); the latter is the ruled constituents of the
state, whose function is to obey (subditi). The act by which a people is
represented as constituting itself into a state, is termed the original contract.
This is properly only an outward mode of representing the idea by which the
rightfulness of the process of organizing the constitution may be made
conceivable. According to this representation, all and each of the people give
up their external freedom in order to receive it immediately again as
members of a commonwealth. The commonwealth is the people viewed as
united altogether into a state. And thus it is not to be said that the individual
in the state has sacrificed a part of his inborn external freedom for a
particular purpose; but he has abandoned his wild lawless freedom wholly, in
order to find all his proper freedom again entire and undiminished, but in the
form of a regulated order of dependence, that is, in a civil state regulated by
laws of right. This relation of dependence thus arises out of his own
regulative law giving will.
48. Mutual Relations and Characteristics of the Three Powers.
The three powers in the state, as regards their relations to each other, are,
therefore: (1) coordinate with one another as so many moral persons, and
the one is thus the complement of the other in the way of completing the
constitution of the state; (2) they are likewise subordinate to one another, so
that the one cannot at the same time usurp the function of the other by
whose side it moves, each having its own principle and maintaining its
authority in a particular person, but under the condition of the will of a
superior; and further, (3) by the union of both these relations, they assign
distributively to every subject in the state his own rights. Considered as to
their respective dignity, the three powers may be thus described. The will of
the sovereign legislator, in respect of what constitutes the external mine and
thine, is to be regarded as irreprehensible; the executive function of the
supreme ruler is to be regarded as irresistible; and the judicial sentence of
the supreme judge is to be regarded as irreversible, being beyond appeal.
49. Distinct Functions of the Three Powers. Autonomy of the
State
1. The executive power belongs to the governor or regent of the state,
whether it assumes the form of a moral or individual person, as the king or
prince (rex, princeps). This executive authority, as the supreme agent of the
state, appoints the magistrates, and prescribes the rules to the people, in
accordance with which individuals may acquire anything or maintain what is
their own conformably to the law, each case being brought under its
application. Regarded as a moral person, this executive authority constitutes
the government. The orders issued by the government to the people and the
magistrates, as well as to the higher ministerial administrators of the state
(gubernatio), are rescripts or decrees, and not laws; for they terminate in the
decision of particular cases, and are given forth as unchangeable. A
government acting as an executive, and at the same time laying down the
law as the legislative power, would be a despotic government, and would
have to be contradistinguished from a patriotic government. A patriotic
government, again, is to be distinguished from a paternal government
(regimen paternale) which is the most despotic government of all, the
citizens being dealt with by it as mere children. A patriotic government,
however, is one in which the state, while dealing with the subjects as if they
were members of a family, still treats them likewise as citizens, and
according to laws that recognize their independence, each individual
possessing himself and not being dependent on the absolute will of another
beside him or above him. 2. The legislative authority ought not at the same
time to be the executive or governor; for the governor, as administrator,
should stand under the authority of the law, and is bound by it under the
supreme control of the legislator. The legislative authority may therefore
deprive the governor of his power, depose him, or reform his administration,
but not punish him. This is the proper and only meaning of the common
saying in England, The King as the supreme executive power can do no
wrong. For any such application of punishment would necessarily be an act
of that very executive power to which the supreme right to compel according
to law pertains, and which would itself be thus subjected to coercion; which
shepherds and hunters (such as the Hottentots, the Tungusi, and most of the
American Indians), whose support is derived from wide desert tracts, such
occupation should never take place by force, but only by contract; and any
such contract ought never to take advantage of the ignorance of the original
dwellers in regard to the cession of their lands. Yet it is commonly alleged
that such acts of violent appropriation may be justified as subserving the
general good of the world. It appears as if sufficiently justifying grounds were
furnished for them, partly by reference to the civilization of barbarous
peoples (as by a pretext of this kind even Busching tries to excuse the bloody
introduction of the Christian religion into Germany), and partly by founding
upon the necessity of purging ones own country from depraved criminals,
and the hope of their improvement or that of their posterity, in another
continent like New Holland. But all these alleged good purposes cannot wash
out the stain of injustice in the means employed to attain them. It may be
objected that, had such scrupulousness about making a beginning in
founding a legal state with force been always maintained, the whole earth
would still have been in a state of lawlessness. But such an objection would
as little annul the conditions of right in question as the pretext of the political
revolutionaries that, when a constitution has become degenerate, it belongs
to the people to transform it by force. This would amount generally to being
unjust once and for all, in order thereafter to found justice the more surely,
and to make it flourish.
Sources:
http://www.marxists.org/reference/subject/ethics/kant/morals/ch04.htm
http://plato.stanford.edu/entries/kant/
Sources:
Retrieved from the world wide web:
http://en.wikipedia.org/wiki/Common_law
Submitted by:
Submitted to:
Romey, Clarita A.
Dakanay
Rodriguez, Merela
Atty. Rochelle
Many people believe that the law written in the books does not always
determine the outcome of a legal dispute. The outcome may vary depending
on the mood of the judge, his upbringing, personal opinions. Many of the
legal realists believed that the law in the books (statutes, cases, etc.) did not
determine the results of legal disputes.
b. Belief in the importance of interdisciplinary approaches to law.
Many legal realists were interested in the sociological and anthropological
approaches to law.
reality is intelligible but not in terms of a spiritual reality of ideals and values
but in terms of the physical reality of things and their necessary relations
that exist apart from the human mind. Hgerstrm is committed to the belief
of:
a. The realistic view that concepts are embedded in the facts of physical
reality.
b. The existence of actual information makes an impact upon the minds
of human beings using their senses of sight and touch to arrive at
knowledge of reality.
c. To be able to express in meaningful words in terms of concepts that
can be used to express judgments since the truth of a judgment is the
reality of the thing.
d. The philosophical task is to use a conceptual analysis in order to
determine whether words correspond to facts and thus express
concepts or rather are words devoid of meaning.
Hgerstrm calls his philosophy rational naturalism since it provides the
secure foundation for the pursuit of scientific knowledge based upon the
naturalistic approach that everything in nature is what it is. It follows that the
physical reality cannot be described and explained in mathematical concepts
but only in naturalistic or empirical concepts referring to natural properties
and their causal relations.
Morality and Moral Knowledge
Hgerstrms rational naturalism holds that the physical reality is lacking of
any values that informs his conceptual analysis that there can be no moral
reality in terms of moral concepts embedded in things and human beings.
This ontology is a version of nominalism that is related to his epistemological
view that there can be no moral knowledge. Thus he rejects the appeal to
the principle of utility or happiness as the supreme principle of morality since
moral concepts cannot be defined in non-moral concepts in terms of
empirical facts of sensations of pain and pleasure.
He also rejects Kants appeal to the will as practical reason as the
foundation for the supreme principle of morality respecting the equal
freedom and dignity of human beings as rational persons and responsible
agents since reason is confined to theoretical reason. Thus Hgerstrm
subscribes to non-cognitivism in terms of an emotive theory that moral
sentences do not express propositional attitudes of beliefs that can be true
or false but are used to express emotional and exhibited attitudes of feelings
terms of the various forces which operate within a state to maintain the law.
This raises the question of legal knowledge, which Hgerstrm does not
explicitly address but his rejection of metaphysics implies that there is no
room for legal knowledge in terms of normative knowledge about right and
duties but there can be knowledge about the maintenance of legal rules
based upon the naturalistic approach.
Olivecrona also follows Hgerstrm but presents a more elaborate account of legal
rules in his Law as Fact where he in the second edition introduces a classification of
legal theories into voluntarism and non-voluntarism. Natural law theories and
positivist theories belong to voluntarism since both theories claim that law is the
expression of the will of the supreme authority and they only differ with
respect to locating the supreme authority in god or the state. This implies
that the usual division between legal positivism and natural law cannot be
maintained since it is false that they will lays down what is right and wrong in terms
of commands.
According to Olivecrona, a proper theory must be a non-voluntarist or realistic
theory of law that claimed legal rules must be conceptualized as independent
imperatives to be distinguished from commands since the latter are personal
relations whereas imperatives are impersonal relations between human beings. The
law is expressed in the imperative mood in terms of ideas of human behaviour and
used by the legal authorities not to communicate knowledge about these ideas but
to influence the behaviour of human beings.
In this way morality depends upon the positive law rather than the other way round,
and he rejects the idea of the validity or binding force of positive law as an idealistic
element that must be replaced with the realistic element of the efficacy of legal
rules in the minds of people. The law consists of rules about the use of force by the
legal authorities to cause the appropriate behaviour among human beings as the
effect.
In this way the law is a link in the chain of causes and effects and located as social
facts within the physical reality. This constitutes the area for legal science offering
information about the ideas expressed in legal rules and he rejects the view
advanced by O. W. Holmes and American realists that the task of legal science is to
predict how judges will decide cases, since it rather has the task to offer information
about the proper patterns of behaviour.
On Law and Justice, Scandinavian Legal realist viewed that juridical propositions
to be scientific propositions are predictions about the behaviour of judges deciding
cases. This has some similarity with American realism, and in contrast to
Olivecrona, Ross also discusses judicial reasoning to arrive at the view that judicial
reasoning is not a matter of argumentation but persuasion. This fits with his
Criticism
The Scandinavians have had an important impact upon jurisprudential thinking in
the Nordic countries, but their claim that the naturalistic approach is the only
scientific approach has been criticized for neglecting the normative aspect of law as
well as reducing legal knowledge to be empirical knowledge about socialpsychological facts.
UTILITARIANISM
Hernando, Elaine LC
Grossman, Shaun
Dela Cruz, Michael Paul Bryan
Utilitarianism
Utilitarianism (Latin utilis, useful), in ethics, the doctrine that what is useful is
good, and consequently, that the ethical value of conduct is determined by the
utility of its results. The term utilitarianism is more specifically applied to the
proposition that the supreme objective of moral action is the achievement of the
greatest happiness for the greatest number. This objective is also considered the
aim of all legislation and is the ultimate criterion of all social institutions. The
utilitarian theory of ethics is generally opposed to ethical doctrines in which some
inner sense or faculty, often called the conscience, is made the absolute arbiter of
right and wrong. Utilitarianism is likewise at variance with the view that moral
distinctions depend on the will of God and that the pleasure given by an act to the
individual alone who performs it is the decisive test of good and evil.
It is a philosophical belief that law should be utilized in the most socially useful way
such as improved happiness, financial wellbeing and justice.
The movement began in the 18th and 19th centuries in Britain as a critical response
toward the common law system.
Utilitarianism Paley & Bentham
William Paley (british theologian) - utilitarianism is combined with both
individualistic hedonism and theological authoritarianism, as illustrated in his
definition of virtue as the doing [of] good to mankind, in obedience to the will of
God, and for the sake of everlasting happiness.
Jeremy Bentham (British jurist and philosopher) - employed the utilitarian theory as
a foundation, not merely of an ethical system, but also of legal and political reforms.
He maintained the necessity of sacrificing smaller interests to greater, or, at all
events, of not sacrificing greater interests to smaller, and so posited as the ethical
goal of human society the greatest happiness of the greatest number.
Utilitarianism Bentham
Bentham sought to illustrate the doctrine of utilitarianism by counterposing it to the
doctrine of asceticism on the one hand and to the theory of sympathy and antipathy
on the other.
Asceticism - the principle that pleasure should be forfeited, and pain incurred,
without expectation of any recompense.
He sought further to devise a scale of pleasures and pains, rating them in terms of
their intensity, purity, duration, propinquity or remoteness, certainty, fruitfulness,
and the extent to which pleasure and pain are shared among the greatest number
of people.
Jeremy Bentham and his students John Stuart Mill and John Austin started the
utilitarian movement.
Bentham had a hedonistic theory that everything people do is motivated by the
desire for more pleasure and less pain. He criticized the common law system for
being vaguely written around rights and obligations.
He wanted to simplify this by rewriting laws of rights and obligations into a
relationship of pleasure and pain.
Utilitarian Movement
The movement tried to apply the philosophy to criminal law with the idea that
penalties are a type of government inflicted pain. They believed that the only
reason why criminals break the law is because they cannot understand the written
law of rights and obligations.
They wanted to remove confusing terms from the written law and rewrite laws in a
way that equates undesirable social acts with pain and desirable social acts with
pleasure.
Hedonistic or felicific calculus Benthams measurement system is the
desirableness of such acts are measured according to the amount of happiness it
brings to a society. Some utilitarian also believed the happiness and unhappiness of
the people toward legislation could be determined through citizen's initiated
referendums.
Example: the state needs to enact security legislation for the self preservation of
the state and the protection of the people, yet the new laws cause unhappy burdens
upon the people, then such security measures could not be implemented because it
conflicts with the utilitarian philosophy and so the state would be at risk of collapse.
Another similar problem is that this majority rule form of governance could cause
disadvantage and even suffering for minority groups.
Example: a racist White majority had in some American states excluded minority
groups such as Blacks and Asians from equal rights. More liberal White majority
states would be more in favor of equal rights for Blacks and Asians. So under
complete utilitarian governance, the rights of minority groups would be left to the
mercy of the majority opinion.
Classical Utilitarianism
Principle of utility a.k.a. greatest happiness principle
Jeremy Bentham believed that good and evil, could be scientifically calculated
based on the amount of pain and pleasure caused by an action. The amount of pain
and pleasure could then be compared with the number of people affected by it. So
acts, which cause the greatest amount of pleasure for the greatest number of
people would be considered good. Evil acts, would be those that cause more pain
over pleasure, for the greater number of people.
Bentham claims to have taken the concept of the greatest happiness principle from
Joseph Priestly. The closest connection to this claim is taken from, An Essay on the
First Principles of Government, written by Priestly in London in 1768. In said essay,
Priestly wrote, "...the good and happiness of the members, that is the majority of
the members of any state, is the great standard by which every thing relating to
that state must finally be determined..."
Bentham wrote in his book The Principles of Morals and Legislation:
Nature has placed mankind under the governance of two sovereign masters, pain
and pleasure. It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the one hand the standard of right and wrong, on
the other the chain of causes and effects, are fastened to their throne. They govern
us in all we do, in all we say, in all we think
Felicific calculus a.k.a. utility calculus, hedonistic calculus, hedonic calculus
Bentham formulated an algorithm to calculate whether an act was good or evil. It is
explained in chapter 4 of his book The Principles of Morals and Legislation. The
algorithm involved the measurement of 12 types of pains and 14 types of pleasures
as explained in chapter 5.
12 pains:
The
The
The
The
The
The
The
The
The
The
The
The
pains
pains
pains
pains
pains
pains
pains
pains
pains
pains
pains
pains
of privation.
of the senses.
of awkwardness
of enmity.
of an ill name.
of piety.
of benevolence.
of malevolence.
of the memory.
of the imagination.
of expectation.
dependent on association.
14 pleasures:
The
The
The
The
The
The
The
The
The
The
The
The
The
The
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
pleasures
of sense.
of wealth.
of skill.
of amity.
of a good name.
of power.
of piety.
of benevolence.
of malevolence.
of memory.
of imagination.
of expectation.
dependent on association.
of relief.
Criticism
P.J. Kelly defended Bentham in his book, Utilitarianism and Distributive Justice:
Jeremy Bentham and the Civil Law, claiming that Bentham's Hedonistic Calculus was
designed to prevent the approval of acts, which cause a great amount of pain upon
a single person for the pleasure of a great majority. In theory, if laws are based on
the utility calculus, then people would form a general sense of individual well-being,
as a safeguard against acts such as torture upon a single person for the pleasure of
the greatest number of people.
Gerald J. Postema criticized Bentham in his book, Bentham and the Common Law
Tradition, stating, "No moral concept suffers more at Bentham's hand than the
concept of justice. There is no sustained, mature analysis of the notion..."
itself, as divine therefore, and constant, and so exalted above the sphere of things
that are made.
He disagrees with Bentham that the community is a fictitious body, composed of
individual persons who are considered as constituting as it were its members. To
Hegel, the community is all, and individual fulfilment is found only in and through it.
Freedom inner spiritual realization is achieved through individual conformity
within an ethical society, and an ethical society is an outward manifestation of a
free and rational, moral human being.
SUMMARY
The policy science school of law was developed at the Yale School of
Law and expounded by Lasswell and McDougal (Yale University). The policy
science school argues law is not a mere body of rules, that it is a continuous
process of democratization of social values, that it is a means for the
equitable distribution of the social values, and that the seven basic social
values (power, knowledge or enlightenment, respect, income or wealth,
safety and health, liberty and equality) should guide law-making and the
legal ordering of society. These values are translated by means of policy
guidelines of the state. The policy science school is thus an advocacy of
social values.
OUTLINE
1.) The Yale Approach
2.) Policy Science Jurisprudence
3.) Policy Process and Problems About Values
4.) Social Value
a. Power
b. Knowledge
c. Respect
d. Income
e. Safety
f. Liberty
g. Equality
5.) Overarching Social Value
6.) Concept of Law
7.) Importance
8.) End in View
o Universitiestraining
grounds
planners/makers and govt officials
of
Policy
RELATE
SOCIAL
VALUES=LEGAL
2.
3.
4.
SOCIAL VALUES
GOALS
POLICY GUIDELINES
Statute, Admin. Order, Juridical
Decision
7 Basic Social Values
1. POWER
2. KNOWLEDGE
3. RESPECT
4. INCOME
5. SAFETY AND HEALTH
6. LIBERTY
7. EQUALITY
I. POWER
Two-Fold Meaning:
o Capacity to secure and maintain the fundamental HR
o Competence to make decisions w/o any undue interference
from any group/ form of authority
DEMOCRACY
II. KNOWLEDGE
2 Basic Purposes:
o Dispel Misunderstanding- general aspect
Tendential Functions
o Public Interests- maintenance of general progress
o Cultural; Moral; Political and Economic
III.
RESPECT
Regard for life and esteem for the dignity and worth of human
personality- HUMAN BEINGS
o Human beings are respected, in the present sense of the
word, when they are taken into consideration by all with
whom they come in contact in spheres of life beyond the
IV.INCOME
* Importance- (includes Savings) insufficiency of Income dulls a persons
desire for other values (concern for democratic principles.
* General: denotes Freedom from Want and the Conservation of the
Natural Resources- economic betterment of people
1. Freedom from Want- Labor Unionization; CBA; freedom to sell
ones own goods/services in the best market; refusal to sell it;
higher wages; fewer work hrs; better working conditions; fair
measure of job security
2. Conservation of Natural Resources
*
V. SAFETY
General Aspect: denotes freedom from fear of disease, pestilence
and hunger as well as freedom from fear of violence, disorder and war
Particular Aspect:
o Public protection
Simple Measures - such form as street lighting,
widening
and
maintenance
of
roads,
installation of traffic signs
Complex measures such form as national
constabulary forces, municipal police forces,
measures for the protection of life and property
from fire and other destructive phenomena
o public health
-It involves attitude and habits of healthful living
-Important thing here is EDUCATION IN HEALTH not
PHYSICAL EDUCATION merely.
o Social security
The measures for social security should take into
account aid for the unemployed and financial
assistance for the aged.
o peace and order
two measures taken for peace and order
first: Eradication of friction and conflict.
Second: The promulgation of specific
rules with definite incentives and/or
sanctions for the purpose of certainty in
the determination of the extent and
limits of the conduct of every person in
the community.
VI. LIBERTY
o LIBERTY is not unrestricted
o LIBERTY is manifested in the ability of a person to do things which are
essential to realize his or her conscience, opportunities and interest.
FORMS
VII.
EQUALITY
Negative Aspect:
1. equality is not absolute similarity
2. equality is not an assurance that everyone shall, as a matter of
fact, be the same in all relations
Jural Inequality: material and relevant to the legal ordering
Invalid view of Equality: equality means similarity of all matters
of social relationship
Positive Aspect: the point is that this social value is worth striving for
in the areas or parts where they are attainable
All men are equal
Each persons well-being and happiness is as secure and inviolate as
that of every other person
Everyone has a rightful claim to equal treatment and protection of the
law, regardless of any inconsequential and insignificant disparity
Constituent Parts
John Rawls (1921-)
1. The equal right of everyone to the total system of basic liberty
2. Fair equality in opportunities to offices and positions in order
to heighten the chances of those with lesser chance or opening
Equitable sharing of social goods as well as material goods to
the greatest possible of the least favored
CONCEPT OF LAW
Can truly be an instrument of global, regional and
national control when it is committed to the complete
achievement of the social values that constitute the professed
ends of democratic societies.