CHAPTER 1 LAW AS PROCESS Laws are not just statutes per se but the whole series of the life

ws are not just statutes per se but the whole series of the life experiences of lawmakers, law
enforcers, law breakers or followers as well as lawyers, judges and legal theorists.
LAW - is a rule of conduct, recognized by custom or by formal enactment, which a community considers as binding
COMMON CHARACTERISTICS OF LAW
upon its members.
1.) OBEDIENCE Common characteristics present in all types of law.
PHILOSOPHY - Love of wisdom or the search for truth. - It seeks to discover the essence, nature and foundation of
2.) GENERALITY Sees laws as ‘generally’ rather than ‘particularly’ framed. It is for common observance
things, as opposed to their appearance.
3.) PROMULGATION Aquinas posits that promulgation is essential to law, the following are the objections that
USES OF PHILOSOPHY promulgation is essential to law:
a.) Natural law which has the character of law needs no promulgation;
1. DEEPER UNDERSTANDING To gain deeper levels of understanding, it must continually question everything we b.) Law’s force affects not only those to whom the law is directly promulgated but also to those who were
believe in. not parties to its promulgation; and
c.) The force of law extends to the future and binds those unborn at the time the law was promulgated.
2. WISDOM Will help us understand and forgive, it is enough, and more than the world’s wealth.
Aquinas replies to the following objections:
LEGAL PHILOSOPHY – A systematic study that seeks to understand the
a.) Natural law is promulgated, since it can be gleaned from the fact that God instilled natural law “into the
a.) Nature and essence of law;
man’s mind”
b.) Its definition and elements;
b.) Those who are not present during the law’s promulgation are bound to observe the law in that they ca be
c.) The sources of its authority;
notified by others of the law after it was promulgated; and
d.) Its various applications and development, and;
c.) The durability of written characters ensures that laws may be “continually promulgated” even to the future
e.) Its role in society - Also known as jurisprudence or the science and philosophy of law, concerns itself with
fundamental questions like what is law as such, and not seeks to know what is the Philippine law.

FIVE SCHOOLS OF JURISPRUDENCE 4.) RULE OF LAW a legal principle which posits that whenever a legal issue present itself, it must be decide by
applying the accepted principles of law. It is a principle of governance in which all persons, institutions and entities,
1. NATURALISM Maintains that law and morality are not separate, that an unjust law is not true law and that law
public or private, including the State itself, are accountable to laws that are:
must reflect the eternal verities of justice and fairness.
a.) Publicly promulgated; b.) Equally enforced;
It believes that there are rational (ethical or moral) limits to the power of congress to enact laws.
c.) Independently adjudicated; and d.) Consistent with international human rights, norms and standards.
2. POSITIVISM Believes that law and morality should be separate, and that law is valid if it is validly posited by lawful
Rules of law adheres to the following legal principles:
government or authority. Believes that laws are not products of heavenly notions and ideals but from a more earthly
agreement (convention) among those who use it. a.) Supremacy of law;
b.) Accountability of law;
3. REALISM Law is determined by real world practice and experience. Law is not a strict, scientific, philosophical or
c.) Fairness in application of law;
logical activity. Rather, it is based on human blood and sweat-experience.
d.) Separation of powers;
4. FORMALISM Law is a strict science governed by formal axioms and principles which are used by judges, using the e.) Participation in decision making;
rule of logic, in deciding and determining the outcome of a case. f.) Legal certainty;
g.) Avoidance of arbitrariness; and
5. CRITICAL LEGAL STUDIES Law is but an expression of the policy goals of whoever happens to be, at the particular h.) Procedural and legal transparency
moment in history, the dominant social group.
5.) IS INTERNATIONAL LAW TRUE LAW? International Law is that branch of law that governs the relationships
CHAPTER 2 between countries and other multinational actors.

Its purpose is for nation-states to maintain peaceful and productive relationships among each other.
LAW AS RULES Laws are set of rules and that when dispute arises, all a judge does is find the right rule and apply it
mechanically, even ruthlessly. Basis of enforcement of international law:
It caters to efficiency (ex. Quick disposal of cases from the court dockets). Obedience of international law by member states is based on the principle of reciprocity. This means a nation obeys
because it wants other nations to do the same, and it wants to be seen as a “law-abiding” country by other nations.
That it is dismissive of the other aspects of human experience; that it does not factor in the relationship of the
litigants.
LAW WITHIN RELIGIOUS DOGMA AND TRADITION LAW AS CUSTOM Custom – from Latin consuescere ‘to be accustomed’ is a society’s habitually practiced conduct or
preferences.
A. CODE OF HAMMURABI Covers diverse areas of laws as trade, family, employment, criminal justice,
judicial procedure and anticipates more modern legal concepts such as frustration of contracts. It is based on the SAVIGNY’S DOCTRINE OF THE HISTORICAL SCHOOL This is the view that law is but a crystallization of group’s national
principle that justice dispensed by judges and rulers should not be whimsical, arbitrary or personal. Rather, notions or tribal character. Law is written, and is updated, by the evolutionary processes of the group.
of justice should abide within defined and well-formulated rules following adherence to truth, equitable principles
and retribution. Law is not an arbitrary will or imposition of just any law maker; rather it is like language which captures the
uniqueness of the culture which utilizes them.
B. JOHN CALVIN John Calvin’s rigorous theocracy or government by priests is a more contemporary
example of complete subordination of an and his laws to what is perceived by the group as the will of God. In this ENDS AND EFFECTS OF LAW
view man was under the sovereignty of God. 1.) Full development of the Human Personality
C. INQUISITION Another example of subordination of state law under religious dogma. 2.) Justice
3.) Wisdom and law as heuristic
It is a tribunal of the church enforcing church law and dogma. 4.) Equity
5.) Human Rights
LAW AND RELIGION 6.) Equality
1. JEWISH LAW Torah – five first books of the Old Testament or Pentateuch by the Christians 7.) Equal Access before the law
8.) Liberalism
-Is a written constitution of the Jews which contains their code of laws. 9.) Morality
-Written by Soferim or a group of interpreters who help to keep Jewish law adequate for succeeding generations,
and to the ne conditions of life to which they lived. FULL DEVELOPMENT OF HUMAN PERSONALITY

a.) Mishnah – Is a collection of commentaries on written Jewish law consisting of discussions among the
Rabbi. It comments on the Torah.
b.) Gemara – comments on the Mishna.
c.) Talmud – combination of Mishnah and Gemara
d.) Halakha – legal and ritual matters embodied on Talmud
e.) Haggadah – ethical, theological and folklorist matters embodied on Talmud.
f.) Responsa – are juridical guidance or opinions given by the rabbis on day to day details of Jewish life.
Aristotle and Aquinas both believed that laws make man good, and that it is law’s mission to enable the human
person to achieve his fullest development.
Aristotle’s view on the ends of law: The purpose of law then was to assist man to the attainment of his fullest
potential in society. Since each individual’s potential is not the same as that of others, every effort must be made,
therefore, to draw out his best capabilities – whether artistic, literary, physical or any other.
Aquinas: 1. Arguments holding laws do not make man good.

HUMAN RIGHT IN JEWISH LAW a.) It is virtue not law which makes men good
b.) Goodness precedes law;
The recognition of the importance of human life is at the same time both integral to the Jewish faith system and the c.) There are people who are good to the community but bad on those referring to themselves; and
first and necessary precondition for a belief in human rights. The notion of human rights flows as a natural extension d.) Since some laws are tyrannical and abusive, their effects would necessarily be harmful.
of the Genesis account of the creation of humanity.
Reply of Aquinas to these arguments:
2. ISLAMIC LAW Also known as Shari’a, believed by Muslims to be of divine origin, and is one of the world’s great
legal systems. Much of the Shari’a is derived from the Koran. The Koran supplied the basic tenets and principles of a.) That every law’s aim is to be obeyed by those to whom the law is addressed, and that the proper effect of
Islamic Law but not the details. the law is to lead its subjects to their proper virtue
b.) Goodness such as is not the only reason why people obey the law. Some obey for fear of the consequences
a.) Hadith – is a collection of the teachings of Muhammad and the stories of his life is regarded by Muslims such as punishment or having a particular transaction declared void which means losing the state’s
as their guide to living second only to the Koran. cooperation in enforcing the private agreement.
HUMAN RIGHT IN ISLAMIC LAW In Islamic law, human rights are seen as rights which all human beings ought to have. c.) Since the individual is part of the whole, the goodness of the individual will be felt proportionate to the
common good.
These rights are so deeply rooted in our humanness that their denial or violation is tantamount to a negotiation or d.) A tyrannical law is, strictly speaking, not true law. It is a perversion of law, and one that is not in accord
degradation of that which makes us human. with reason.

3. CANON LAW It is a body of laws enacted by ecclesiastical authority for the administration of the Roman Catholic
church. Canon law contributed principles on equity, good faith and morality in sexual and marital relationships.

HUMAN RIGHT IN CANON LAW It distrusts of individualism and its emphasis on the community.
JUSTICE • One of the determinants of a good law is if it conforms to the principles of justice and fairness. Significance interbreed despite racial differences. Moral Capacities People have the capacity to care, help, nurture and defend
of Justice Its tendency to counteract the crude egoism of the individual. other people in all sorts of unimaginable ways. Equality in Unequal Circumstances

Definition of Justice For Aristotle : Justice is giving everyone his due.
Under Encyclopedia Britannica: Justice is the concept of a proper proportion between a person’s deserts (what is
merited) and the good and bad things that befall or are allotted to him or her. Social justice is neither communism,
nor despotism, not atomism, not anarchy, but the humanization of laws and equalization of social and economic
forces by the State so that justice in its rational and objectively secular conception may at least be approximated.
Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures
calculated to ensure society, through the maintenance of a proper economic and social equilibrium in the
interrelations of the members of the community, constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on
the time-honored principle of salus populi est premo lex. (Calalang v. Williams)
WISDOM AND LAW AS HEURISTIC WISDOM
EQUAL ACCESS BEFORE THE LAW It seeks to equalize access to and opportunities to avail of the benefits of law.
Positive discrimination – reverse kind of discrimination that attempts to promulgate equal opportunity to members
of a traditionally discriminated minority. Its function is to compensate for past cases of exploitation or persecution by
the majority group.
LIBERALISM Liberalism is the belief that the value of individual human personality, and a profound conviction that all
human progress has been due to the free exercise of human powers.
Negative Liberalism – also called classical liberalism, it refers to a state being free from constraint. It focuses setting
limits to government influence and intervention.
Positive Liberalism – also called positive freedom, it believes that it is not enough for the government to leave the
people to themselves. It argues that government must also actively promote various types of rights and freedoms
necessary for a liberal society to flourish.

An ancient concept, wisdom has been historically considered as the pinnacle of human development.
HEURISTIC Is that branch of logic dealing with discovery and finding out. It is a model or useful hypothesis that leads
to a solution that is more or less near the best possible answer. Law as heuristic means law is viewed as a rule of
thumb or a general principle which is true in most cases but neither accurate nor reliable in all cases.
MORALITY It means proper behavior of a person on society. Morality has to do with human activities that are looked
upon as good or bad, right or wrong, correct or incorrect. This means that the act or behavior must conform to the
accepted rules for what is considered right, virtuous, just or proper conduct.
Five differences between legal and moral duties:

EQUITY Law as equity has two meanings. First, it may refer to fairness or justice, as in treating people equally and
fairly, and second it may refer to the rules developed by the Court of Chancery in England in the 13th and 14th
centuries. Black’s Law Dictionary defines equity as the “recourse to principles of justice to correct or supplement the
law as applied to particular circumstances.”
This is so because law by nature is ‘general’ and ’universal’, and there are situations when the liberal application of
law would result to injustice instead of justice.
EQUITABLE PRINCIPLES IN INTERNATIONAL ENVIRONMENT LAW
1.) Legal duties concentrate on external behavior, while moral duties concentrate on the internal process of
intention, motive and conscience.
2.) Legal duties are accompanied by corresponding rights.
3.) If somebody violates a legal duty, he or she is punished by the state.
4.) Law is formulated by an easily identifiable authority; and
5.) The legal verdict in a given situation is black and white, regardless of how complex the issues were.
Morality and Good Manners Etiquette which is the doing of good manners is sometimes regarded of a
component of morality.

1.) Common but Differential Responsibilities This principle is offshoot of the concept that the world is a
common heritage of mankind, thus State have common responsibility towards its protection.
2.) Sustainable Development It assesses or quantifies development in relation to its long-range impact on the
both the local and wider environment. Sustainable Development is related to the principle of sustainable
use which is the prudent, rational, wise or appropriate exploitation of natural resources.
3.) Intergenerational Equity It believes that humanity must hold the natural and cultural environment of the
Earth in common both with other members of the present generation and with other generations, past and
future. Intergenerational equity is distinguished from intragenerational equity is that the latter mandates
the equitable of prudent use of natural resources for the benefit of other people, or nations within the
same generation.

HUMAN RIGHTS These rights are entitled to simply because they are human. These are the fundamental and
inalienable rights which are essential for life as a human being. Human rights are set of principles, laws, rules and
standards designed to protect and promote human dignity.

EQUALITY Equality before the law or having equal opportunities before the law. Common Humanity Men are equal in
that we belong to a common species homo sapiens who speaks a language, use tools, live in communities and can