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Rule of Action Law - Is Any Rule of Action or Order of Sequence From Which Any Beings Whatsoever
Rule of Action Law - Is Any Rule of Action or Order of Sequence From Which Any Beings Whatsoever
Rule of Action Law - Is Any Rule of Action or Order of Sequence From Which Any Beings Whatsoever
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.
Example:
(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
Example:
A. Divine Law
B. Natural Law
C. Moral Law
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
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.
HISTORICAL
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.
***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.
*** 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.
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.
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.
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."
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)
JURISPRUDENTIAL SCHOOLS
1. The historical school – appraises the law in the context of the common
consciousness of a group of people.
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.
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.
4. The functional school – views the nature of the law in terms of the jural
postulates, social interests and national policies of the people.
5. The realist school – takes the nature of the law on the basis of the on-going
experiences and inter-experiences of 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
What is the basis and limits of global, regional and national legal
orders in relation to social values?
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.
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.
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.
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
*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.
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.
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
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
d. Interpretative Use