Midterms Reviewer | Fr.

Ferrer | PhiLaw |  men are naturally bad and will not

Block C observe their faith towards you, so
Important Terms to Remember are in bold you must, in the same way, not
CHAPTER 1| IS LAW NECESSARY? observe yours to them
1. Doctrine of Anarchism – general 14. Ovid (Metamorphoses) - he said that the
restlessness against all authority written law was not needed because there
2. Ideological – something that forms part of were no people that oppressed another;
our outlook upon the world and the relation conscience was their guard
of man to the world and to society 15. Seneca (Kingship of the Wise)– men in
3. Idea of law – ideological in character; their primitive state had no notion of private
inevitably affects our general thinking property, but men became avaricious and
dissatisfied with the common enjoyment of
4. Law (in the view of Man as Evil) –
the good things of the world. Kingship of the
indispensable restraint upon the forces of
wise gave place to tyranny, so that men had
evil; penal laws needed for progress
to create laws which should control their
5. Law (in the view of Man as Good) –
rulers.
government and legal system are the
 According to Seneca, this innocence
sources of evil; penal laws needed because
was a result of ignorance than of
Man has become corrupted
virtue
6. Age of Social Reform – time when people
called for the total elimination of law
16. Fall of Man – adopted the notion of ‘men
are primarily innocent, but greed and
7. Golden Age of Primeval Innocence –
avarice make them evil’
time when men lived simple, happy, well-
 Biblical Account of Paradise –
ordered lives without the need for any
necessity of human law and all its
external system of legal rules or coercion to
institutions (state, private
restrain their impulses which were wholly
property, and slavery), was
unselfish and directed to the common good
derived from man’s sinful nature
of mankind
 Aka idyllic primitive scene
17. Augustine – State-law and coercion were
not in themselves sinful but were part of the
8. Legists (Ancient China) – argued that man
divine order as a means of restraining
was initially evil and they acted good due to
human vices due to sin
the influence of the social environment,
 All legal institutions and state powers
particularly the teaching of rituals and the
are legitimate. Law is a natural
restraints of penal laws
necessity to curb man’s sinful nature
 A single law, enforced by severe
penalties, is worth more for the
18. Commonwealth of God’s Elect
(Augustine)– a mystical society that
maintenance of order than all the
Augustine hoped mankind to achieve
words of all the sages
9. Shastra writers (India) – argued that
19. Aristotle (Change of Emphasis) -
provided more scientific and philosophic
men are by nature passionate and covetous;
reflections
if left to themselves the world would
resemble a devil’s workshop where the 20. Natural Virtue (Aristotle) – Man may be
logic of fish would reign (big ones would corrupt, but he is still capable of
eat the little ones) development
10. Bodin (EUW) – original state of man was 21. Aquinas (Medieval Catholic Church) –
disorder, force, and violence state is not a necessary evil but a natural
foundation in the development of human
11. Hobbe (EUW) –primitive man was a state
welfare
of perpetual warfare; individual existence
was brutish, nasty, and short  Law as a positive instrument -
not only a restraint from evil but also
12. Hume (EUW) – without law, government,
a guide to set the path of social
and coercion, human society could not exist;
harmony and welfare
law is a natural necessity to man
13. Machiavelli (EUW) – based his advice to
22. Wistful Primitivism – man’s nature is
and remains good, but it is the social
princes to disregard their pledges if these
environment which is responsible for the
conflicted with their interests
evils of man’s condition, and the existence of

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 a regime of law imposed by a force from
above
23. Plato – men of early times were better
than we are and nearer to the Gods
 Envisioned society as one free from
all legal rules in which rational
(inner) harmony will prevail as a
result of the good sense and social
impulses of its members
 System of Education – produces
adequate rules and conditions the
population to a state of obedience
 The Laws – dialogue by Plato; shows
that his vision is more totalitarian
than anarchic
24. Cult of non-violence – appeared as a
threat to state authority and afforded a base
for the anarchistic doctrines
25. Ideology of human progress –
worldview which rejects the belief in a
primitive paradise and looks forward to an
ever brighter future for mankind
 Ultimate Social Harmony – if
man was left on its own to evolve and
not interfered with, it would achieve
this stage
26. Adam Smith (Theory of Laissez Faire)
- all government and law were in principle
evil in so far as they constricted or distorted
the natural development of economy and of
society
 Strongly favored the use of coercive
law for the protection of private
property, which it regarded as an
indispensable feature of a free market
27. Godwin (Political Justice) - evils of
society arose not form corrupt or sinful
nature but from the detrimental effects of
oppressive human institutions. Voluntary
cooperation and education would
enable all law to be abolished
28. Bakunin and Kropotkin (Russians) –
the state, law, coercion, and private
property were the enemies of human
happiness and welfare
 Beneficent role of cooperation –
necessary in human evolution as a
principle of mutual aid; would
replace the coercive community
29. Tolstoy – form of anarchy based on the
conception of simple Christian God-
inspired life
30. Alymer Maude (Life of Tolstoy) –
“remove the law, and induce meant to
believe that no fixed code or seat of
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judgement should exist, and the only people
who will be able to get on at all decently will
be those who, like the Russian pre-
revolutionary peasantry, follow a
traditional way of life”
31. Marxism – envisaged the overthrow of the
capitalist society by a violent revolution of
the oppressed proletariat. Law nothing but
a coercive system devised to maintain the
privileges of the property-owning class
 Interim period (in this revolution)
– a paradox where there is a need for
the increase of state activity
32. Elliot Smith (Human History book) –
The evidence is so definite and abundant
that it becomes a problem of psychological
interest to discuss why men persist in
denying the fact of Man’s innate
peacefulness
 Friction and discord comes as a result
of the ills of society
33. Duality of Human Nature – man may
possess innate goodness, but there is also a
dynamic side to human nature which may
be directed to creative or destructive ends
34. Herbert Read – men have always
organized themselves for mutual aid, so
you can rely on them to organize a social
economy which will ensure the satisfaction
of their needs. Any dispute can be resolved
in a local basis, no need for a state.
 Crime is largely a reaction to the
institution of private property
 Anarchism – a society without a
ruler. It does not mean a society
without law or without order
CHAPTER 2 | LAW AND FORCE
35. Anu – god of the sky; issued decrees which
commanded obedience; the very symbol of
authority in the cosmic order; legitimate
authority
36. Enlil – god of the storm; power of
compulsion; executes the sentences of the
gods; force
37. Moral Obligation – treating someone as
entitled to your obedience (overlords,
policemen, judges); obliged, willingly or
unwillingly, to obey; voluntary adherence by
virtue of intrinsic rightness
38. Legitimate Authority – has to be obeyed
because of its very legitimacy
39. Monolithic View of Law – legitimate
authority and moral obligation can be
equated; the king can do no wrong
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 40. Social Contract (16th and 17th century) – a
breach by a ruler of this contract (ex: the
ruler is illegitimate) as in the case of James
the Second could be represented as
releasing his subjects from their obligations
to yield to his authority
41. Authority or Legitimate Domination
(Max Weber) – takes three forms:
charismatic, traditional, and legal; analysis
of Weber is typological and not
developmental; concerned with general
tendencies
 Charismatic Domination – form
of personal ascendancy which an
individual may acquire in a particular
society; confers an indisputable
aura of legitimacy (Alexander the
Great, Julius Caesar, Napoleon.
Hitler, Mussolini, Stalin)
 Traditional Domination – treating law other than it as
authority which comes from the
personality of the leader may pass
onto his successors (Monarchs –
charisma is in the crown, founders of
religion); charisma becomes
institutionalized and becomes
embodied in certain permanent
institutions formed largely by
traditional usages
 Legal Domination – under this
system legitimate domination has
become impersonal and
legalistic; a traditional system of
domination will not lack legal rules
o Circular Argument of LD –
laws are legitimate if they are
enacted, and an enactment is
legitimate if it conforms to
those rules which prescribe the
procedures to be followed
42. Modern Democratic State – largely
abandoned charismatic authority in favor of
institutionalized legislature,
bureaucracy, and judiciary which
operate impersonally under a legal order
which has the legitimate use of force;
still rests on the belief of its legitimacy, for
without it there would be anarchy and
disorder
43. Bracton (medieval jurist) – the king ought
to be under God and the Law
44. Present Notion of Authority – rests on
a firm belief in its legitimacy both in its
broadest and legal context
45. Force of Law – counterpart of legitimate
authority (ex: occupation of Nazi forces of
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European countries); law in the last resort
can be explained terms of force alone even
without legitimate authority; the force of
law seems to be always linked to the
capability to be enforced by coercion
(policemen, hangman, etc.)
 Thrasymacus (in Plato’s Republic)
– said that justice is simply the rule
of the stronger
 Nazi Occupation – characterized
by force without legitimate authority;
try and force a law into the pattern of
a marginal and exceptional
situation rather than comprehend it
in its typical and characteristic
pattern
o A society that is temporarily
dominated by sheer force or
terror is not a reason for
force incarnate
46. Principles of True Morality – any force
or violence is wrong in itself and a law which
rests ultimately on violence is against this
principle; violence lies outside the scope of
law and is an extraneous element
 Moral Law – rule based not on force
but on conscience, or whatever else
is appealed to as the mainspring of
morality; no system of rules is
entitled to qualify as law unless it is
subsumed under the rule of morality
47. Universal Suffrage and Majority Rule
– the rule that somewhat replaced the old
social contract theory; people obey the law
not because they are constrained to do so by
force but because they consent or at least
acquiesce in its operation; an individual
can, from time to time, manifest his
adhesion to the operative system of
government; moves the emphases from
coercive subordination to voluntary
consent or acquiescence
48. Force in International Law – there is no
international coercive enforcement
(there are no policemen) but there is a
system of rules that states agree to be
binding to them; cannot be regarded the
same as the force in national scope (if you
do, there could be destruction of life and
property on a vast scale)
 National Law – can always in the
last resort enforce its decrees against
individuals
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  Anti-coercionists – seeks to
describe the legal process exclusively
in terms of authority to neglect
 Coercive View of Law – putting
force in the forefront to the neglect
of authority
o in less developed societies,
coercion tends to take the form
of each man helping himself
with the aid of his kinsfolk to
enforce his rights
 Law as Flexible – there are many
situations where it may be fully
justifiable and desirable to employ
the conceptual apparatus of law
(mix of anti and coercive) even if
features such as ‘ideal’ are absent or
at least present in only an attenuated
form
 Ideal Type of Law (for Weber) –
unified analytical construct;
utopia; significance of a purely
limiting concept with which the real
situation or action is compared
 Legal Science – it is up to legal
science to analyze the conceptual
apparatus of law to find a way to
have coercive relations in
international law
49. Organized Coercion – experience shows
that at all levels of society human law has
depended for its ultimate efficacy on the
degree to which it is backed by organized
coercion
50. Relative Anarchy of Feudal Society –
dependent for its law enforcement largely
on kinship groups supplemented by the
strong arm of feudal barons
51. Centralized Machinery of a Modern
State – the authority of the law gains much
by the availability of machinery of
regular enforcement
52. Psycho-analysis – unconscious factors in
man’s psychological make-up; powerful
aggressive drives which require to be
effectively repressed in order to subject man
to the needs of social discipline
 Freud – aggressive urges could be
repressed and sublimated but not
eliminated; civilization will always
involve a struggle between social
impulses and the basic drives
towards aggression; insisted on
the connection between civilized
society and coercive social order
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53. Model Legal System – comprises rules
governing the use of violence as a
mode of enforcing other sections of
the system, in which are laid down rules
governing the conduct of those subject to
that system
54. Developed State Law – the use of force
has become more closely regulated that it
has been pushed further in the background
55. Fatal Illusion – force never was or at
least has ceased to be an essential feature of
law
56. Command Theory of Law (John
Austin)– no rule where a breach cannot
entail the application of a state force can be
regarded as a rule of law
CHAPTER 3 | LAW AND MORALS
57. Divine Lawgiver – as in the case of the
Ten Commandments, the law is attributed
to the Divine
58. Divine Inspiration – attributed to human
sources of law to give divine sanctity to
the law
59. Divine Sanction – gives that aura of
authority which law is able to command
for belief and in the moral duty to obey the
law
60. Ancient Systems of Law – gods
themselves have directly or indirectly,
through human agency, decreed the very
content of the laws; displayed a rich
ingenuity in devising and inflicting penalties
of the most appalling kind; for the most part
 Ancient societies did not identify their
rulers with gods – clear-cut
distinction between the divine and
merely human in the sphere f law
61. Story of Orestes – sufficiently illustrates
the belief in divine intervention for offences
against the laws; to avenge his murdered
father he kills his mother and lover. Divine
Furies pursue him but Orestes was saved
by Athene
62. Ruling Pharaoh of Egypt – regarded as
the local incarnation of God on earth
63. Hebrew Influence – rejected all systems
of polytheism and of divine rulers and
set up in their place an unswerving
monotheism in which God’s will dictated
the moral pattern for all mankind
64. Hebrew Prophets – reiterated the
imperative character of God’s law; the
obligatory character of that law upon rulers
and people alike; punishment God would
inflict upon those who disregarded the rules
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 65. Great Prophetic Period (of Hebrew
Religion) – recorded in OT; Kings propose
but God disposed; no mere kingly decree
could prevail against the will of Almighty
God (Law of Moses)
66. God’s Will – declared by the prophets if
they weren’t in the divine scriptures;
laws laid down by human rules could and
frequently did conflict with the divine
decrees
67. Man-made Laws – does not stand validity
in the face of divine laws
68. Hebraic View of Divine Law – equated
law with morality for the only true law was
that which embodied the decrees of God’s
will; law is simply the moral or religious
law which is laid down by God or developed
by divinely inspired human beings
69. Calvinism – law and morality are one and
no recognition can be granted to any laws
which are lacking in divine inspiration;
conflict between human law and moral law
 treats all valid human laws as nothing but
expressions of the moral law
70. Geneva of Calvin – triumph of rigid
orthodoxy imposing its moral tenets on
every aspect of the life of the community
 Counterpart – virtual anarchy of
individuals each interpreting the law
according to his own moral
inspiration (Germany in the early
days of Reformation, Anabaptists)
71. Scriptures – can be full of doubts and
obscurities; needs to be authoritatively
interpreted if they are to be treated as
legislative in character
72. Hebraic Approach to Moral Law –
stressed the irrational and mystical
elements of faith; God’s ways were
mysterious and not fully
understandable by man, but man must
submit lovingly to the divine will even if it
passes understanding; appeals to the very
incomprehensibility of the universe as a
justification for resort to faith alone (Credo
quia absurdum)
73. Greek form of Faith – rational order of
the universe governed by intelligible laws
ascertainable by rational investigation;
both the physical and the moral order of the
world were based on rational principles
 Secret Orphic rites and
Phytagoreanism – mystical and
irrational elements in both Greek
religion and philosophy
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 Fate – played a mysterious role in
cosmic and human affairs, deciding
human destiny in an inscrutable
fashion (Oedipus)
 Man’s reason – shared in the
rational nature of the universe
 Human reason (in the moral
sphere) – entails the idea of a moral
law of a rational kind; derived from
the fact that man’s reason must
necessarily accept the rational
solution as the moral or true one
 Test of Rationality – since the
universe is ordered rationally, reason
must also accept rules of rationality
 No higher law of reason – man-
made law is not affected by divine
law; human law possessed an
autonomous position in society
 Moral obligation to State – unlike
Hebrews, Greeks said that a person
has to the moral obligation to obey
the law even if it is wrong or immoral
 Plato’s Crito – Socrates explains to
his companion why, though his
condemnation may have been unjust,
he must abide still by the state’s
decision and would be acting wrongly
by trying to escape the penalty;
concept of dura lex sed lex
o Trying to escape the law would
be tantamount to trying to
destroy the laws
 Highest Unwritten Law – live
according to the laws; obedience to
the law itself is a principle of
highest morality
 Moral Law (Greek sense) –
independent of state law where t can
be shown that a particular decree of
the state may be shown to be immoral
or unjust (unconstitutional??); moral
law does not override the law of the
state as far as the individual citizen is
concerned
o Law of God – still requires
obedience even to an unjust law
74. Identity of Law and Morality (Plato) –
only when the state itself embodied
the idea of the good could the life of the
individual properly be sacrificed to the state
75. Difference of Hebrew and Greek Faith
– Hebrew says human law is to be obeyed
only when it corresponds with divine law;
Greek says that human law may conflict
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 with moral law but citizens must still obey
the law of his state
76. Philosophy of Hegel – the individual is
treated as submerged in the higher reality of
the state; state itself represents the very
embodiment of morality; state is not open to
the persuasion of an individual citizen
77. Democrats and Anti-Totalitarian –
while recognizing the moral duty to obey the
law, greater emphasis is placed on the
limitations of this doctrine in those cases
where morality was in conflict with the
provisions of positive law
 While law and morality occupy much
ground in common, there is no
necessary coincidence between the
dictates of law and morality
78. Relation of Law to Morals – sometimes
described as a Venn Diagram; misleading
insofar as it suggests that where there is
common ground between the two there is a
kind of identity
 Law of Murder – it may concern
prohibitions rooted in common
morality, but it might be different to
what the law and morality would
regard as amounting to murder
o Practical Expediency – laws
are justified to distinguish
79. Moral Codes – supplement the force of
the law which equally forbids them; largely
presupposes the existence of a legal
system underlying its precepts; plays an
important role in establishing the
authority of the law and ensuring
obedience to it
80. Authentic Path of Morality – higher
ethical attitude
81. Divergence between Law and Morals
– law may reflect popular morality
though the latter is slowly being made to
yield to a more refined or humanitarian
approach; new moral duties may come
to be recognized and translated to legal
duties
 Counterpoint – law will abstain if
more social evil may be created than
prevented in its intervention
82. Three Attitudes to the Divergency
(b/w morals and law)
1) Law and morals must
necessarily coincide – moral law
dictates the actual content of human
law; morality is itself merely what the
law lays down
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o Thomas Hobbes – morality is
really nothing more than
obeying the law, so that an
unjust law is a contradiction in
terms
2) Both enjoy a realm of their own
– but moral law is still higher law and
thus provides a touchstone for the
validity of merely man-made
law
3) Autonomy of both spheres –
neither can resolve questions of
validity save its own sphere; aka legal
positivism; pragmatic view of moral
law (utility, expedience, tradition, or
social custom)
83. Wolfenden Committee – urged that the
offense of homosexual relations
between consenting male adults in
private should be removed from the statute
book
84. Libertarian Approach (John Stuart
Mill) – the law should not intervene in
matters of private moral conduct more than
necessary to preserve public order and to
protect citizens against what is injurious
or offensive
85. The Error of Jurisprudence – failure to
give expression to the moral standards of
the community will weaken the moral
authority of the law
86. Moral Standards – set by the ordinary
reasonable man which is the man or
woman in the jury box or the ‘man on the
Clapham omnibus’
87. Divorce Act of 1969 – sole ground was to
be the irretrievable break-down of the
marriage
88. Genera Uniformity of Result – one of
the aims of legal process is to achieve as
much as possible uniformity in cases of
similar kind; society is provided with a more
subtle and sophisticated means of
bringing the law into contact with the needs
of current morality
 This instead of relying on the
ordinary reasonable man
89. Ladies’ Directory Case (English Case) –
law should be directly related to
conventionally established standards of
morality
 Facts – publisher of a booklet giving
information as to the addresses and
numbers of prostitutes was held
guilty of conspiring to corrupt public
morals
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  Held – conviction upheld by the
House of Lords; judges as the
custodian of public morals and
its duty to preserve the moral
welfare of the state
 Judicial Legislation – judge
created a new offense not previously
punished by law; against public
morals daw kasi
90. Elimination of Moral Judgements
from Criminal Law – concentrates on
achieving its social purposes; protect
society and reform the prisoner rather
than establishing the guilt and degree of
moral responsibility; not enough to find a
man ‘guilty’ just because he falls within the
scope as defined by law
 Does not mean that if a convicted
person was regarded as incapable of
benefiting from punishment, he
would automatically have to be
released
o Still detained if against public
morals
 Ultimate Release of Prisoner –
depends w/n he will constitute a
danger to the public
 Barbra Wootton – the concept of
responsibility could be allowed
gradually to wither away
91. Three Vital Respects in which
Morality Impinges upon Law
1) Guilt in criminal law is linked with the
idea of moral responsibility;
morals reinforce the authority of the
law
2) Responsibility in law is treated as
excluding the possibility of guilt if
there exists a circumstance of
excuse which makes the accuses not
morally implicated (proof beyond
reasonable doubt)
o Raison d’ etre (aka mens
rea) – responsibility of a crime
entails a certain mental
element
3) Deciding upon the punishment to be
inflicted; by eliminating the idea of
moral responsibility for a crime a
more rational form of sentencing
policy can operate
CHAPTER 4 | NATURAL LAW AND
NATURAL RIGHTS
92. Natural World (Early Civs) – no
distinction between natural world and the
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world of human beings and human affairs;
nature is both inferior and subject to the gods
93. Gods and supernatural spirits (Early
Civs) – direct the powers and forces
governing everything in the universe –
including man and the conduct of his affairs
on earth
94. Decree of the gods or their reps (Early
Civs) – treated the same as natural laws
95. Nature (Early Civs) – how things or
peoples may normally be expected to be or
behave but the gods/supernatural powers
are the ones looked to for true
explanations of the events both divine
and human
96. Chinese – did not arrive at the notion of
fixed physical laws of nature governing
the universe; relied on the idea of harmony
as a governing principle; never succeeded in
developing a scientific outlook on the
Western pattern
 Harmony – not to be attained by
natural or positive law; justice and
harmony could be preserved if the
appropriate ritual and customary
observances were followed
 Western pattern – presupposes the
acceptance of pre-ordained causal
laws
97. God – can be conceived as a divine
lawgiver who has on the one hand laid
down the fixed order of the physical
universe and on the other provided the laws
to govern human affairs
98. Scientific Approach to Nature (Greek
pre-Socratic philosophers) – main
objective was to explore the world of
nature in order to find some principle or
principles governing the universe which
would explain its structure and functioning
 aka philosophic speculation or
scientific investigation
 Power of Human Reason – used
to understand the world instead of
just using gods
99. Rationalism (Greeks) – the idea that the
universe is governed by intelligible laws
capable of being grasped by the human
mind; it should be possible to determine
rational principles to govern man’s
conduct both as an individual and in society
100. Laws (Greeks) – mere matter of
conventional arrangement and there is
nothing in nature which lays down what
these laws should contain; nature in man is
just instinct
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 101. Idealist Philosophy (Plato) – direct
experience of our senses is no more than a
shadow world, a pale reflection of the
reality which lies in the realm of absolutes
beyond the ken of immediate sense-
impressions
 Nature – ideal expressing the
fundamental aspiration of man if his
full potentialities are reached
 Perfect Realm – may be achieved
through education in philosophy
 Justice – absolute which can be
apprehended only by the philosopher
and can be fully realized only in an
ideal state ruled by philosopher-
kings; Plato did not conceive the
higher idea of justice as a form of
law decreed by nature and where
man-made law was subordinate
 Law and Government – rigid and
inflexible kind; law as purely an ideal
standard to be reached by reason,
revelation, intuition
102. Naturalism (Aristotle) – rejected
idealist philosophy; relied on observation
and experience; limited to Greek city-
state
 Nature – the capacity for
development inherent in particular
things; the way man behaves by
reason of his psycho-physical
make-up
 Telos – end or purpose of a thing
 Justice – might be either
conventional (varying form state-
to-state) or natural (common to all
mankind)
 Purpose of Man – social or
political being
 Law – factual approach which starts
primarily from man’s behavior
 Natural Justice – common to all
men; justified slavery because some
men are slaves by nature
103. Stoic Philosophy – universality of
human nature and the brotherhood of
man; reason as the essential
characteristic of humanity
 Universal Law of Nature –
ascertainable by reason, touchstone
for determining the justice of man-
made laws
 Polis – law of a man’s city; local and
conventional rules
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 Cosmopolis – law of the universal
city; regarded as purely rational law
 Jus gentium (Stoic) – common
law applicable to all mankind
104. Roman Imperium – allowed the
spread of Stoicism, jus gentium and the
universal faith of Christianity
105. Judaic view of Law – law represented
God’s will on earth; law is supremely good
106. Early Christian view of Law – earthly
laws were mere evil arising out of man’s
sinfulness derived from the Fall of Man
107. The City of God (Augustine) –
equated the platonic concept of ideal justice
with the conception of the City of God on
earth when Christian justice will at last reign
supreme
 Without justice, what is a state but a
robber-band?
 Justice – part of divine law laid
down by God to govern mankind as
long as our sinful earthly
existence continues
 Natural Law – equated with divine
law; miraculously revealed;
ascertainable by reason; imposed by
God through the head of the Church
108. Pope – vicar of God; invested with the
power to expound and interpret the law of
God; even Kings were required to recognize
this power
109. Scholasticism (Aquinas) – rejected
the earlier notion that law and government
were rooted in sin and therefore necessarily
imperfect; truth based on logic and
deductive reasoning but their grounds
are given by beliefs of Christian theology
 Divine Law (highest law) – could
only be known through divine
revelation
 Natural Law – wholly rational and
could be understood and interpreted
by the light of unaided human
reason
 Human Law (lowest law) – tasked
in filling in the gaps left by natural
law; develops the natural law rules
(law of the land based on natural
law)
 Nature – not rigid; destructible
and could be replaced to meet
changed conditions
110. Secular Revolution – Golden Age of
the Law of Nature; emphasis placed on
the rational character of natural law; reason
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 is shared by all mankind; bore fruit in the
United States and France
 Grotius – said that natural law
would still apply even if God did not
exist
 System of Natural Law – can be
rationally constructed and
universally valid (ex: French Civil
Code of 1804)
 Human Law – should give effect to
natural law; in case of conflict natural
law still prevailed
 Edward Coke (English CJ) –
common law could treat a statute as
void if it was contrary to reason
111. Marsilio of Padua (Middle Ages) –
argued from natural-law premises in favor
of democracy not only in the state but even
in the Catholic Church
112. Post-Renaissance – man possessed
certain fundamental rights in a state of
nature; he takes these rights over to society
and is protected by natural law
113. Social Contract (John Locke) – the
power of the government was conceded only
on trust by the people to the rules, an
infringement will be the end of the trust and
entitled the people to re-assume their
authority
114. United States Constitution –
essentially a natural-law document
setting out the fundamental authority of the
people and their natural rights; first time an
actual machinery protecting rights was
brought to law
 Natural rights – could be the
subject of legal guarantees and that
these could be adjudicated upon like
any other rights and duties of secular
law; rights are superior over any
legislation since they are in the
constitution
115. General Will (Rousseau) – natural
law conferred absolute and inalienable
authority on the people as a whole;
general will was the sole and unfettered
legal authority in the state; any ruler
could be removed by general will
 Rousseauism – became an
instrument of totalitarianism; they
would just say that they represented
the general will
116. Catholic Theories of Natural Law
(Modern Approach) – still take the form
laid down by Aquinas; neo-Thomism;
idealist view of nature
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117. Philosophical Theories of Natural
Law (Modern Approach) – neo-Kantism;
categorical imperative that we should
always act so that our norm of conduct
might be translated into a universal law;
idealist view of nature
 Stammler and del Vecchio –
strove to deduce by logical principles
a fabric of actual rules which they
hold to be implicit in Kant’s universal
law
118. Sociological Theories of Natural
Law (Modern Approach) – adopts a more
factual approach; attempt to apply the
scientific methods to identify human drives
119. Trials of Nuremburg and the
Eichmann Trial– are people responsible
for the crimes they commit when it was valid
in the laws of their own state; is there a
higher law which could punish those acts
 Customary International Law –
developed from the trials of
Nuremburg (same definition as from
consti btw)
120. New irrationalism – arose out of the
reaction to the rationalistic and scientific
empiricism of the 18th and 19th century
 Nietzsche – doubted the whole
fabric of traditional morality and
wished to transform morals into the
cult of the superman
 Tolstoyism – repudiated all law and
government in favor of a personal
vision of the duties if primitive
Christianity
121. The Magic Mountain (Thomas
Mann) – the overwhelming development
of anti-rational ideologies gave the urge
for natural law to re-assert itself
122. Bill of Human Rights – one of the
most fruitful developments of Natural Law
123. Duty of Judges – interpret the actual
constitution and not their own conception
of some higher system of law
124. Natural Justice (English Law) – they
may set aside a decision of a domestic
tribunal if the decision is contrary to natural
justice; may refuse foreign judgement on
this account
125. Higher System of Justice
(International Sphere) – now more than
ever needed because of many conflicting
systems of law and competing nations all
trying to assert their individual needs and
claims;
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  Inter-planetary travel – stresses
the imperative need for some rational
way of developing an international
society and standard
 International Law – primitive
compared to other legal systems
CHAPTER 5 | LEGAL POSITIVISM
126. Positivist approach – epicurean
school of thought
127. Hume – rejected natural law; there are
two realms of human inquiry
 Norms – what is actually the case;
can be treated as either true or false
 Normative – what ought to be the
case; we cannot ever demonstrate
what ought to be from what actually is
the case; just because capital
punishment is allowed it doesn’t
mean that it ought to be
 Human Law – characteristic of
being normative since it lays down
rules of conduct rather than stating
facts; different from moral norms
because it calls for a certain measure
of regularity of observance
 Moral Rule – may still be held to be
valid even if it is never or scarcely ever
observed
 Natural Law (for Hume) – became
more like a mere pretentious name
for moral rules
 The Passions – what is sought in
the ends or aims of human life which
were determined by the desires of
mankind; human passions create
moral norms
 Categorical Imperative (Kant) –
was an attempt to answer Hume;
however, this was not provable, and it
also failed to provide an effective test
for the actual solution of particular
problems
128. Utilitarianism (Jeremy Bentham) –
greatest utility (what served to increase
human happiness) for the greatest number;
behavior of mankind was dominated by the
influence of pain and pleasure
 One man’s happiness was equal worth
to another
 Law (for Bentham) – could only be
properly understood if it was treated
as an autonomous field of study
free from all issues of morals,
religion, and the like; no questions
whether a legal rule is good or bad,
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just or unjust; existing law should be
evaluated by the standard of utility
without any pressure
 Expository Law – what the law is
 Censorial Jurisprudence – what
the law ought to be
 Legal Duty – does not cease to be
one just because the citizen is
persuaded of the moral iniquity of
the duty; whether he chooses to
comply is a question of his
conscience
o They can condemn the law as
immoral, but law remains
valid
129. Hobbes – whatever the law decrees is
synonymous with morality
130. Positivists – attacked natural law
because it gave sanctity to laws which could
prevent law reform
131. Duty of the Judge (positivist aproach)
– judge is appointed and paid to apply
municipal law, regardless of their belief
 Natural Law – judge should refuse
to apply the unjust laws as being valid
132. Positivism (Comte) – largely derived
from philosophic attitudes which were part
of the climate of the period; adequqate
knowledge could be attained only by
employing the scientific method of
investigating reality; no validity to prior
knowledge
 Three developments in the
approach to the world - Religious
Approach to the World  Meta-
physical Approach  Positivist
 Science of Sociology – whole of
man’s social activities might be
viewed in the light of scientific
principles
 Comte, however, eventually favored
unsupported a priori asserts –
contrary to this entire life’s work
133. Realist Art – attempt to create a new
type of fiction based on scientific
investigation
134. John Constable – realist painter;
endeavored by the direct study of nature
to transfer to his canvases a truly realist and
scientific interpretation of what he beheld
 Painting – a science that should be
pursued as an inquire into the laws of
nature
135. Science of Positive Law (Austin) –
only positive law (what actually is, or man-
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 made law) is the appropriate subject of law authority; moral values do exist and
as a matter of science; law as a self- can be demonstrated to exist
contained body of rules  Counter-argument – legal
 Persuaded that there was sufficient in positivists are not moral-less; it
common in the conceptual does not mean that since the court is
framework of all legal systems to concerned with what the law is and
justify a general jurisprudence not what the law ought to be that
where general validity is attained; these judges or lawyers don’t have
limited to the more developed moral attachments
legal systems 138. Universal Norms – human nature is
136. Conceptual Approach to Legal everywhere and at all times pretty much the
Systems (Austin) – analyzes only same; deep down is a fundamental core of
fundamental concepts and their structures; moral rules
answers to legal problems can be arrived at 139. Modern Existentialists – reject
by working out the logical implications reason in favor of the inner liberty of the
of legal principles; judiciary can regard itself individual as the source of true morality
as isolated to all questions of policy;
operates on second-order facts
 Criticism of Conceptual
Approach – any developments of
law will be disregarded because it
does not conform to the previous
structure; it diminishes the law-
creating functions of the courts
 Second-order facts – rules of law
as contained in statutes, recorded
cases, and law-books associated with
given legal systems
 First-order facts – actual behavior
of judges and others in relation to the
complex legal rules
 Sociologist Jurist – law is not a
static but a dynamic and
developing body of doctrine
137. Positivist Legal Theory or
Rationalist Approach (In present time)
– disbelief in the possibility of finding an
absolute standard or norm outside the legal
system itself; clear understanding of
human social problems can be attained
by keeping the questions of legal validity
and moral worth distinct
 Positivist (in present time) –
usually adopts a relativist approach to
moral values; but if some moral
values was demonstrably of universal
validity then man-made law may be
subordinated
o does not deny that rational
arguments may be applied to
the moral evaluation of law in
favor of law reform and moral
progress
 Modern Criticism to Positivism
– it gives ground for a totalitarian
who bends laws in the guise of legal

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