RULE OF ACTION

Law – is any rule of action or order of sequence from which any beings whatsoever
either will not, or cannot, or ought not to deviate.

A. Rule of action - any warrant, instruction measure, regulation, or decision

governing any act, conduct, transaction or proceeding, including its
consequences.

Example:

(1) a traffic regulation promulgated in accordance with a city or

municipal ordinance.

(2) A statute enacted by the legislature pursuant to its legislative

powers in the constitution.

Two important points that should be noted ---

(1) Conduct is included in the definition – this is necessary because

there are certain conduct that are productive of distinct legal
effects and consequences (such as “forbearance” which means
intentional refraining from action)

(2) They continue to apply with their sanctions in full force and effect
even though they are repeatedly violated or remained unobserved.

ORDER OF SEQUENCE

B. Order of Sequence – is any system of arrangement or consecutiveness, or

any uniformity of a given group of phenomena. Mainly concerned with
physical nature, order of sequence is also a law, such that any deviation
therefrom results in inconvenience, damage or injury. They are “immutable”
for they do not alter with time and place. And they are “absolute” for they do
not depend on the human will but operate inexorably admitting of no
exceptions.

Example:

(1) The numerals or integers – this system of numerical arrangement

or consecutiveness of the positional value of numbers cannot be
unilaterally varied without harmful consequences.

(2) The pull or drag of gravity is an example of “uniformities” ---

uniformities of nature can be harnessed to good use but no human
being can violate or change any order or norm of physical nature
without harmful results.
FOCAL POINTS OF NON DEVIATION

Three Types of Nondeviation

(1)Will-not category – means that there is a determination to abide with,

or avoid of. This force carries a connotation of future conformity,
prospective agreement, or eventual compliance.

(2)Cannot category – means that there is no other way but to obey or

comply with the rules of actions and the orders of sequence, no matter
how much the desire to act otherwise may be. This is indicative of a
present or actual condition of conformity. This category is the force
which gives the legal order the authority to try and punish lawbreakers.

(3)Ought-not category – there seems to be an alternative to action, but

such alternative is abandoned because it is the better part of prudence
to follow or comply with rather than refrain from the following or
complying with them.

DIFFERENTIATE NATURAL LAW FROM DIVINE LAW

A. Divine Law

(1) General Sense

 Entire system of perfection which God in his infinite wisdom

has imprinted in the whole of nature to govern its operation
and where all that there in it is ran in perfect order.

(2) Strict Sense

 Law of religious faith which concerns itself with the concepts

of sin and salvation, of death and life, of the temporal and
the spiritual.

B. Natural Law

(1) Historical Background

 Heraclitus referred to it as the rational harmony and order of

divergent things and events.
 It is the unwritten law pervading and ruling the whole of
nature without which the cosmos would be plunged into
chaos.

(2) Concept and Precepts

 May be defined as “ The universal discipline of virtue

impressed in the heart and the mind of man to guide him in
the exercise of his rights, in the performance of his
obligation, in the observance of rules, and in preservation of
order and unity.

 Precepts: Righteousness, Justice, Equity, and Fairness.

DIFFERENTIATE NATURAL LAW FROM MORAL LAW

C. Moral Law

(1) Moral Order

 It was the mores of the people that held the group

together.
 What is legal is not necessarily moral.
 Two types of orders upon which present life is based:
o Legal order
o Moral order

(2) Moral Norms

 Patterns of Good and exemplary conduct which set the

moral tone or feeling of community.
 Determine what conduct may or may not be followed or
what acts may or may not be done.

(3) Moral Law and Other Disciplines

Moral law Divine law

Also concerned with absolute Law of religious faith.
precepts of good and right
conduct as basis of norms but
not necessarily concerned with
religious faith.
Moral law Natural Law
Ethical in foundation Strictly metaphysical.
Moral law Physical law
Totality of uniformities and
order of sequence which
combine together to govern
physical phenomena.
Moral law Jural law
Enforced only by indefinite Enforceable in courts.
authority for there are no
courts in which it is
administered as such.

(4) Moral and Social Norms

 Social norms deals with objective conduct only.

 May vary with each particular class of people.
 What is socially allowed in one part of the country many not
be so in another part of the same country.

DIFFERENTIATE STATE AND FOLKSOUL

THE STATE: HIGHEST PERSONIFICATION OF THE FOLK-SOUL AND FOLK-

MIND
As human relations progressed from family or clan to community and further to
large-scale territory, a sense of national awareness grew among the people, "where
the individual, without shedding his narrower relationship with his family and
region, became related, and, in certain instances, even subordinated, to the
national interests." (id., 87).

Following the above-mentioned pattern of expansion of human relations of the

people, the process of keeping peace and order grew apace with it. At the family-
clan level, a direct appeal to the head of the family or clan was enough to resolve
human conflicts. As progress continued, something like a communal type of dispute
resolution mechanism emerged. Eventually, as progress became more complicated,
the pattern of dispute resolution and maintenance of peace and order gave way to
the more complex machinery of the body politic, i.e., the State with a national
government, where the reins of government were placed in the hands of, and
practiced by, a professional group in the community and where the people were
bound by common centers of interests and purposes.

xxx The State is thus considered as the highest expression of the folk-soul or diwa
of a people. Indeed, it is the highest national structure erected by the socio-political
development of the people. In another way of saying it, the body politic is
considered by historical jurisprudence as the final juristic personification of a nation
or people.

HISTORICAL SCHOOL

LAW IS HISTORICALLY DETERMINED

In the view of the historical school, therefore, "the law is not deliberately made by
the effort of human reason, but is the product of common conviction xxx, the folk-
soul (which) awakens this conviction xxx, and (that) the law is historically
determined." In the words of Mr. Justice Cardozo, "history built up the system and
the law that went with it."

xxx Reason alone cannot work miracles in legal development nor work wonders in
constitution making, decision making, codification, or legislation. The growth of law
is a historical process. It does not proceed from the peremptory or arbitrary will or
wish of the legislators or judges. xxx.

HOW IS POSITIVE LAW EFFECTIVE FROM THE HISTORICAL’S POINT OF

VIEW?

HISTORICAL

thevolksgeist and volksrecht thus:

xxx The folk-soul, i.e., the life and spirit of the people, which is the basic foundation
of historical jurisprudence, provides a sense of beginning and unfolding of
law. xxx . And in relation to positive law, the concept of the folk-soul takes on the
form of a theory of what positive law ought to be, which is to say that positive law
should be a reflection of the common consciousness and spirit of the people. In the
words of Emil Lask, even social values proceed from the substratum of the folk-
soul./

xxxx
From the observation post of historical jurisprudence, the law is not universal, that
is to say, there is not only one and the same law for all peoples everywhere.
xxx. (Law) is only national; it is xxx oriented to the time, place, character,and
individuality of a particular people. The reason for this is that social milieu varies
from time to time, from place to place, and from people to people. Like a people's
language and other cultural attributes, which are not found in others, the law is the
product of the genius or intelligence of that group of people. In the words of Sir
Henry Summer Maine, the acknowledged leader of historical jurisprudence in
England, the law is the product "of the huge mass of opinions, beliefs, superstitions,
and prejudices of a people produced by institutions of human nature reacting upon
one another. In different words, law of a group of people is peculiar only to that
group. xxx.

TELOLOGICAL SCHOOL
The thrust of this school is basically teleological, for it views the law in terms of its
basis and fulfillment of its purposes or ends. The teleological Jurisprudence
emphasizes the fundamental quest of this juristic school, that the law is ordained
for the fulfillment of righteousness, justice, fairness and equity. This is its telos.

*** The source of law is the natural law. It was posited that man is inherently good
and they continuously sought for things which are morally correct. For this school,
all men regardless of their location or race seeks what is just and avoid what is
unjust.

HOW IS POSITIVE LAW EFFECTIVE FROM THE TELEOLOGICAL’S POINT OF

VIEW?
The teleologist views that there is a very present bond or relationship existing
between positive law and natural law. This means that it is upon the precepts of
natural law that lawness, that is to say the completeness of the legal order is
based. In other words, Legal order ought to be based on the precepts of the natural
law otherwise, lawlessness is the alternative.

***Thus, for this school of jurisprudence all men are inherently good and naturally
follows what isjust and avoids what is unjust. Premises considered, it can be
ascertained that positive law conforming with the natural law will be effective
because all men are inherently moral.

*** Positive law is effective in the Teleological School’s viewpoint when the
universal law is applied with the law created and enacted by the state together with
the end of achieving
Righteousness, justice, fairness and equity.

BASIS OF HISTORICAL SCHOOL

Historical jurisprudence directs attention towards the socio-historical course,
towards the historically determined and factually observed law. Thus,
historical jurisprudence believes that the folk-soul is decisive in the study of
the problem of the nature of the law, dropping the idea that the laws of
different peoples are the same on the assumption that they arethe result of
the experiences of the human race as a whole.

*** Law is born out of OBLUTIACS of a specific group of people. The

oblutiacs are distinct in its nature depending on the culture of the political
society where the same is found, wherefore, the folksoul of a society is
different from the folksoul of another because of the differences in their
culture, norms, beliefs, and practices.

BASIS OF TELEOLOGICAL SCHOOL

The teleological concept of law is based on the natural law philosophy. For the
teleologist, the natural law has a great deal more to do in shaping its concept of the
nature of law. They consider it as the most potent force in the development of legal
institutions and legal precepts.

*** The source of law is the natural law. It was posited that man is inherently good
and they continuously sought for things which are morally correct. For this school,
all men regardless of their location or race seeks what is just and avoid what is
unjust.

EXPLAIN SOCRATES’ABSOLUTE JUSTICE

Socrates postulated the ethical tenet that no man is voluntarily bad or evil.,
notwithstanding that quite often man is ruled by his baser appetites resulting in
failure to do the right or avoid the wrong. By this, he meant that non man
intentionally does wrong.

Socrates believed this so much that he even considered the judges who had
sentenced him to poison himself, on the charge of non-conformity, as acting for the
good of Athens.

According to Socrates, one who knows that a thing is right or that thing is good will
generally do or chooses to do that thing.

It is however, in the process of realizing what is right that one often stumbles and
falls because of the corruptive tendencies of the physical senses. Thus, unless a
person is guided by the criterion of the absolute good, his moral scruples would not
be tenable and it is very likely that he would end up acting wrongly.

Therefore for Socrates, the master virtue is knowledge of the absolute good. And it
is this kind of knowledge that can guarantee the fulfillment of the moral nature of
man.

In difference words, the knowledge of the absolute good is the criterion in

determining whether the consequences of human conduct is virtuous or vicious.

PLATO’S UNIVERSAL JUSTICE / RATIONAL JUSTICE

Plato utilized the thesis of his master Socrates. But Plato argued for a rational
principle of rectitude and just dealing of mean with one another. Since man is an
intelligent and sensible being, reason provides him with the means or opportunity
of discerning what is right and what is wrong. Thus, Plate felt that justice enables
man to form ideas or principles of human conduct to attain his moral nature and
good faith that is, in keeping his self-respect by doing good and shunning evil.

Plato identified justice as the universal vice, the single greatest evil. In positing this
great edifice of thought, Plano utilized justice as the central theme of his conception
of the law and the State. Plato added that to do justice, not to make money, is the
real happiness and that the unjust alone are unhappy.

Plato felt that justice is the expression of the natural law itself. It is not something
that man contrives but is innate in the perfection of nature.

For Plato, justice is the totality or harmony of human virtues, in the same way that
injustice is the totality of human vices. Justice is synonymous with morality and
injustice with immorality. Morality is the health and harmony of the soul and
immo0rality is a departure from virtue.

ARISTOTLE’S PARTICULAR JUSTICE

The core of Aristotle’s idea is that justice must be understood in the same sense of
what is fair and equal. For Aristotle, an act is justified if and when it is done with
fair equality and thus capable of being done also by others.

Aristotle considered justice only as a particular kind of virtue that which is

characterized by fairness and equity. In other words, it is justice in ïts rational and
objectively secular conception.

Rodriguz vs. Tan

Defendant Tan was proclaimed Senator by the Comelec. However, Rodriguez who
was later declared legally elected, asked Tan to reimburse the salaries and
emoluments he received during his incumbency. SC ruled in favor of Tan who
already rendered service. In this case, even the election of Tan was unjust, he
must be justly compensated for he was able to render service during this
incumbency.

ST. THOMAS AQUINAS – IMMUTABILITY

According to St. Thomas Aquinas there is a need to emphasize that changes do
occur in the subsequent application of law and these changes may be expansion or
contraction in accordance with the civilization of the time and place. The application
of first principles cannot obviously be done in the same way at all times or to all
situations because of ever varying human experiences. The norms from which the
more specific rules are derived remain unchangeable but specific legal rules are not.

The change is based on the assumption that it is for the welfare of the community.
Thus, there are matters in the legal ordering of society which have extended the
application of first principles for the benefit of the people.

An example would be the Original Universal law to LIFE which have been enlarged
in American jurisprudence to include "liberty and the pursuit of happiness. The
same has been enlarged in a different way in the Philippine legal theory to include
"liberty and property."

ST. THOMAS ETHICAL JUSTICE

Inherent in every person. He defined Justice in the same ethical tradition of the
greco-Roman Jurisprudents before him. He reiterated the forgotten idea that sophia
or right reason is the governing idea to bring man to his well being that is in real
harmony with social relations. He introduced a combination of right reason, on the
other hand, and justice and equity on the other. Right reason is the governing rule
of human conduct. Law is the ordinance of right reason for the common good and
happiness.

ST THOMAS SECULAR JUSTICE / JURISTIC

A habit whereby man renders to each one his due by a constant and perpetual will.

The conception of Secular justice will probably never be weaned from ethical or
moral Justice.

Aquinas held that the best application of Secular justice in the Judicial process is
attained when the judgment of a court fulfills 3 conditions:

1. Must come from one in and with authority. (The judge/magistrate must have
jurisdiction over the persons or the parties and subject matter involved)

2. It must come from one with a particular disposition or propensity for justice (out
of a sense to see that justice is done, as for instance, doubts should be resolved in
favor of the accused)

3. It must conform to the right judgment (must be honestly pronounced according

to law)
IMMANUEL KANT’S PRINCIPLE OF RIGHT
In principle of right, justice is not prompted by the physical senses, but to a
great extent by the feeling to do right or to act properly. If not applied by
the individual and the State results in anarchy, Kant believed that this
feeling to do right and to act properly is supported by the faculties of human
consciousness namely; (1) Thinking, (2) Volition and, (3) feeling. According
to Kant, it would be unreasonable and unbearable for any man living in
society to disassociate his capacity of thinking or comprehension and his
capacity of volition or determination from his capacity of acting ethically or
morally. In other words, man can exert his free will only if he is able to act
with feeling for the righteous, a concept of justice traceable to Socrates and
since man can act freely, only when he has the feeling for ethical and the
moral, then man cannot be treated as a means to an end but always as an
end to himself.
WHEN IS ACT CONSIDERED JUST?
An act is said to be just when it is done in accordance with the universal
principle of right. The principle of right imposes the condition that an act,
which is the external human manifestation of human consciousness, can
only be done when it will agree with the free will or action of all other
persons. If the act does not cause harm to other person then, it will be
considered justified. It is also an echo of the Golden Rule which says : “Don’t
do to others what you don’t want others do unto you.”

IMMANUEL KANT’S CATEGORICAL IMPERATIVE

No matter how difficult the problem may be the universal criterion with
which to recognize right and wrong or justice and injustice in general must
be a maxim of conduct bases on an a priori principle. The principle to be
deduced must be self-evident it must at the same time be reasonable since
it is to be applied to men living in society as free and rational beings, so that
acts can be done even according to its imperative content or requirement.
Kant found his principle or criterion in categorical imperative which states
that: “A person living in society must act in such a way that the maxim of a
general conduct or action, thus, a person living in society must avoid
conduct which, if it became universal, would render the socio-legal order
intolerable.”
Kant posited the view that the possibilities for the application of the
categorical imperative in the socio-legal order is supported by the objective
condition of social life. This is evident to men living in society not by
theorizing alone but by practical reasoning, by vivid and actual experience
that some things are simply right and just while others are simply wrong and
evil. Kant was thus, moved to define as truly “natural” only those acts or
practices that are in accordance with the categorical imperative. Thus, an act
or conduct which a person would be willing that others do or perform would
be a righteous and just act or conduct.

JURISPRUDENTIAL SCHOOLS
1. The historical school – appraises the law in the context of the common
consciousness of a group of people.

The question this school seeks to answer:

Where did the law come from and how did it evolve?

2. The teleological school – thinks of the nature of the law in terms of the moral
and rational nature of humankind. This school understands the law as strictly
connected with morality and naturality.

The question this school seeks to answer:

What is the telos of the law?

3. The positivist school – considers the law as a conscious norm of the state
backed by its authority and force. For this school the law is not inherently moral
or natural.

The question this school seeks to answer:

What is the distinctive structure and content of the law?

4. The functional school – views the nature of the law in terms of the jural
postulates, social interests and national policies of the people.

The question this school seeks to answer:

How does the law work in weighing or adjusting the competing

individual and public interests?

5. The realist school – takes the nature of the law on the basis of the on-going
experiences and inter-experiences of people.

The question this school seeks to answer:

Is the law verifiable in the practical life of the people?

6. The policy science school – looks at the nature of the law in relation to the
degree of success of society in the creation, clarification and realization of social
values

The question this school seeks to answer:

What is the basis and limits of global, regional and national legal
orders in relation to social values?

HEGELS DIALECTIC PROCESS

Hegel viewed the law as product of evolution. This evolution process appears in a
dialectic form: thesis, antithesis and synthesis. This logical frame of thinking is
based on his theory of identity: all that is rational is real and what is real is rational.
In other words, there is an absolute identification of the actual and the rational.
When opposites are reconciled by means of principle of identity, the synthesis
becomes the unification of the opposites into a concrete idea – the concept.

For Hegel, every concept is based on some previous concept. But the
transformation of concept to concept is accomplished by means of erasing the
opposites which negate each other reciprocally (thesis and anti-thesis). Hegel held
that all concepts move by the emergence of ideas. Each idea (thesis) evokes an
opposite idea (anti-thesis) Out of their identification or reconciliation emerges third
possibility – a new idea (synthesis). The synthesis then becomes a concrete
thought. The new concept becomes the prevailing idea until an opposite idea
appears. Each synthesis or concept becomes the starting thesis of a new triad.

FAMILY AS EXAMPLE OF THESIS, ANTITHESIS, SYNTHESIS

Individual naturally tends to a group relationship but at the same time he exists for
himself just as the group exists for itself. Thus arises the conflict. There is need,
therefore, of identification or reconciliation of these opposites. The synthesis of
these opposites is the family, which is composed of two persons of opposite sex
who have despoiled themselves of their individual ego or personality in order to
become as one. Thus, the family exists in and for itself. But the family is obviously
not the end. It is simple another thesis and the beginning of another triad.

The antithesis of the family is the civil society, which arises when several families
have voluntarily grouped themselves together for the satisfaction of some common
needs and the protection of some common but relatively wider interests.

Civil society is not the end or the reconciled idea, for Hegel, the synthesis is the
individualization of the civil society that points to the fuller realization of the group
into a state.

BENTHAM’S “INDIVIDUALIST UTILITARIANISM”

The law was to be evaluated in terms of the protection it affords to individual
interest. This approach is based on the reality that while an individual is part of
politically organized society, nevertheless there remains an element of his
Individuality or personality that is not merged in the society of which he becomes a
a constituent part.

In both constitutional and political science, this refers to the rights and privileges
that have not been surrendered to the State.

For Bentham the test of goodness or badness of an act or conduct is the quantum
of happiness or Justice or misery or injustice that it yields. Law is a means of
directing and governing man to the maximum of Happiness and to the minimum of
misery.

Bentham emphasized the bases of the Utilitarian Supplement.

1. nature has placed man under a regime of pleasure and pains.

2. Every act or conduct is done to procure the happening of pleasure or to prevent

the occurrence of evil.

He provide measure of Utility in terms of pleasure and pain. Among the pleasures
and pains of which human nature is susceptible is the pleasure of piety - possession
of good and the pain of piety - the non possession of goodwill.
2 ways of the measuring the Utility of an acts and its consequences

*First is composed of circumstances:

Extensity - no. of persons affected
endemic - falls on certain individual
epidemic - affects a larger number
pandemic – spreads out to the entire community
Intensity - degree of the effect
Duration- period of time the pleasure or pain lasts
Certainty/ Uncertainty- remoteness
Fecundity - tendency to produce pleasure or pain.

*Second way is the utility of an act which have a great deal to do with personal or
individual differences as to sensibility to pleasures and pain.

- This factors are also very significant in legal rules concerning - justifying,
exempting, mitigating and aggravating circumstances in criminal law.

JHERING’S SOCIAL UTILITARIANISM

Jhering did not quite agree with Bentham’s assumption that there is no conflict with
the individual interests and the interest of the society. For Jhering, the different
aspects of human behavior and endeavor are intimately related to the purposes of
the society, whether that be cultural, governmental, political, or economic aspect.
Jhering is emphasizing the point that an individual cannot be more important than
the entire social group.

As a matter of legal ordering, even those measures which constrict the interests or
purposes of the individual members of the society are in reality done for the
interest or welfare of the entire social group.

The Jherinians believe that the validity of Human acts should be measured in terms
of the realization or fulfillment of the conditions of social life. An act is therefore
good when it takes into consideration the interests of the society and tends to
augment the happiness of the entire community.

HISTORICAL REASON AS TO LEGAL ORDERS (Spanish Colonization)

The colonial, commercial, religious and other contacts with other groups have had a
great deal to do with the resulting similarities or uniformities in the legal orders of
different peoples.

JURISPRUDENTIAL REASON AS TO LEGAL ORDERS (Similar rules or

precepts but resolution differs)
The precepts of justice and fairness are said to be permanent and present in all
men everywhere since they are said to be impressed or implanted in the human
heart and mind. Furthermore, they are supposed to be basic or identical for all
peoples. The precepts of justice and fairness ought therefore to explain the
resemblance or similarity in some aspects of the legal orders of different peoples.

Thus, different peoples may have particular legal rules, more or less similar, for the
resolution of the unjust and unequal situation. For instance, in the Philippines and
US, we both have the law on marriage that acknowledges legally husband and wife,
but we differ when it comes to the process of nullifying a marriage, in US they have
divorce while in the Philippines we have Annulment.
USES OF NATURAL LAW

a. Justificatory Use

 To warrant some legal innovation or to justify some claim

to authority, or simply to support one’s side of an issue or
personal conviction.
 Natural law has been utilized to justify innovations in the
legal system.

b. Oppositive Use

 Oppose the laws that are not promotive of the natural law.
 Ordinarily, Natural law does not advocate disobedience to
unjust stature, order or decision. Obedience here is not
premised on the fact that they are laws but on the idea
that disobedience in itself is in derogation of the natural
law.
 If a statute is not in accordance with the precepts of
natural law, then let such “unnatural” statute stay
unenforced or unobserved until repealed or bettered.

c. Regulatory Use

 The relations of individuals to individuals is an area often

considered in relation to the use of natural law.
 Natural law is the criterion or standard for the validity of
statutes and regulations.

d. Interpretative Use

 Natural law has been utilized as a device to express or put

to effect the legislative intention.
 The use of natural law in the construction or interpretation
of statutes arises in the following cases:
o When a particular situation or condition is
apparently within its spirit or purpose.
o When a particular situation or condition is
apparently not within the words of a statute is
nonetheless within its spirit or purpose.