Legal Philosophy – is the scholarly study of the law, legal theory, and legal sytems in general.

Also
called “jurisprudencia universalis” or simply “jurisprudence” --- Black’s Law Dictionary, 9th Ed

Chapter 1: Introduction

1. Nature of Jurisprudence
A. Proemium -
Case Law – the law to be found in the collection of the reported cases that form all or part of
the body of law within a given jurisdiction.
Jurisprudence (legal theory) – deals with the general philosophy of law, which is the nature
and elements of law. It is concerned with the theoretical and technical aspects of law as a
discipline.
Nature of Law – is concerned with its derivation, development, and trust
Elements of the Law – deals with the concepts which are material to the legal ordering of
society, namely:

1. State 4. Legal persons

2. Sovereignty 5. Legal facts
3. Legal relations 6. Legal things

B. The Problem Stated –

1. What is the nature of the law? (Socrates)
2. Why is jurisprudence worth studying? (Cicero)
What should be done -- Orchestrate the sounds of different schools of jurisprudence concerning the
nature of the law.
How may the nature of the law be fully appreciated ---
1. Systematic understanding of the essence of the different theories
2. Rationalizing differences whenever possible
3. Emphasizing harmony
4. Making allowances for the areas where they overlap
5. Balancing the ideas that have led to undue emphasis in one direction or another
C. The Different Schools of Jurisprudence
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? *IDEAL
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? *IDEAL
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? *MATERIAL
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?
*MATERIAL
 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?
2. Law in General
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.

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.

C. Classification - Four Distinct Classes of RA and OS:

(1) That which necessarily determine the activities of human beings

(2) That which necessarily determine the motions and even the instincts of dumb creatures
(3) That which necessarily determine the origin and growth of living organisms, which governs the
development of all forms of life, from the simplest to the most complex
(4) That which necessarily determine the movements and course of inanimate bodies or masses

D. Focal Point of Nondeviation

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.

3. Jural Law
A. Particular Sense –
 The term LAW refers to a statute: batas, ley, legge, lex, nomoi, loi, gezets
Statue - is the written enactment of the legislative branch of the government composed of definite
provisions for definite situations to which certain incentives and/or sanctions have been attached as
means of enforcement.
Legal Incentive – is a stimulus or motive developed through some extraneous influence operating on
the individual members of society. Ex. -- Tax exemptions, tax deductions, government loans,
condonation of accrued taxes, government subsidies, benefits and rewards.
Legal Sanction – a coercive intervention or an eventual punishment annexed to a violation of a rule
or regulation. Ex. – fine, imprisonment, destierro, loss or suspension of certain legal privileges,
assessment of damages, cost and interest

 May refer to any “contract” or “agreement” – these covenants are binding in character and so
the parties are said to be solemnly making law for themselves.

 Law may also refer to any rule or opinion given by an agency of the state or by a jurist, or by
an authorized official of the government.

Example of regulation formulated by an agency of the state ---

(1) a rule of civil or criminal procedure promulgated by the Supreme Court pursuant to its rule
making power.
(2) Regulation issued by the Central Bank in accordance with its charter and duly published in the
Official Gazette.

Example of opinion given by a jurist ---

(1) “dangerous tendency” by Justice George Malcolm of the Supreme Court of the Phils --- in the
case of People vs Perez, as follows:
“there is a seditious tendency in the words used which could easily produce disaffection among
the people with a disposition to remain loyal to the government and obedient to the laws and
tending to disturb the peace of the community and the safety of the government.”
(2) “clear and present danger” by Justice Oliver Wendell Holmes (USA Supreme Court) --- in the
case Schenck v United States:
“the character of every act depends upon the circumstances in which it is done. . . , The
question in every case is whether the words are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the substantive evils
that Congress has a right to prevent”
(3) “no immediate decision” by Justice Antonio Villareal (Phils SC) --- in Javellana vs La Paz Ice and
Cold Storage Co.,Inc. it was held that
“the various motions for postponement amounting to a systematic method of blocking or
delaying the ordinary course of the hearing of an application for a certificate of public
 convenience will justify the grant of a provisional permit to operate the public service applied
for.”
Example of opinion of a jurisprudent ---
(1) A commentary on a particular branch of law --- the authority of an opinion or commentary is
based on the scholarship of the commentator. It is presumed that the courts take into
consideration only the opinions and commentaries of highly qualified persons.
Example of opinion of an authorized official of the government ---
(1) Ruling or opinion of the Secretary of Justice, who is the Chief Legal Adviser

B. Collective Sense – when the term “law” is employed a collective or aggregate term when
(1) it refers to the gross or bulk of specific or particular laws relating to one subject-matter, or
(2) it refers to the laws obtaining in a given society.

Example of totality of laws relating to subject-matter ---

(1) Civil Law
(2) Commercial Law
(3) Remedial Law
(4) Criminal Law
Example of the use of the term law with reference to particular laws from a determinate source or
origin --- Law of the Philippines

The Three Divisions are:

(1) Laws defining rights and obligations (Substantive Law)
(2) Laws defining remedies and procedure (Remedial or Adjective Law)
(3) Laws defining rights and obligations in extra-ordinary times (Special Law)
 Three Divisions of Law in Collective Sense:
1. Substantive Law – defining rights and obligations
(a) Substantive private law
(1) The law of persons and family relations – defines the rights and obligations of persons living in a
politically organized society regarding their personal and family relationships
(2) The law of property – defines the rights and obligations of persons living in a politically organized
society in relation to property and property rights, including classes of legal things and proprietary
concessions
(3) The law of obligation and contracts – defines the nature and source of claim-duty, privilege-
inability, power-liability and immunity-disability relationships as well as the ones arising ex ques
deleto
(4) The law of trade and commerce – defines rights and obligations concerning land, sea and air
traffic, shipment and business transactions as well as ships and vessels, their crew and navigation.
(b) Substantive public law
(1) Constitutional law – deals with rights and obligations concerning the fundamental or supreme law
of the land, more particularly the organization, powers and functions arising from the relationship
of the state to the people
(2) Public administrative law – body of legal rules defining rights and obligations concerning the
operation of the government both on its departmental and administrative functions and functions
of public officers in relation to private persons as well as the law on elections
(3) Criminal law – deals with the rights and obligations in connection with crimes, criminals and
punishments.
2. Remedial or Adjective Law – defining remedies and procedure
(a) Adjective private law
(1) Law on civil actions – deals with the rules by which a party prosecutes another for the
enforcement or protection of a right or the prevention or redress of a wrong
(2) Law on special proceedings – deals with the processes which are not pursued in the ordinary
manner or procedure.
(b) Adjective public law – the law of criminal procedure which deals with the rules defining legal
remedies and procedures in criminal actions whether they take on the nature of
prosecutions of public crimes or prosecutions of private crimes.
3. Special Law – defining rights and obligations during extra-ordinary times
(a) Military law – deals with the system of rules and regulations for the creation, government,
and discipline of the armed force (apllies only to those who are in actual service)
(b) Martial law – deals with the system of rules and regulations applied by military power in
times of war or in times of grave public danger (ceases when the situation has already
turned to normal)
(c) Public international law – deals with the system of rules, regulations, and principles which
govern the relations between sovereign states, and such other entities, not states, which
are endowed with international personality. Pertains to relationships connected with states
and international entities.

C. Abstract Sense – the term law is simply referred to as “law” without the definite article preceding it.
The central theme of the legal order in the adjustment of human relations is kautusan not batas,
derecho not ley, diritto not legge, jus not lex, nomos not nomoi, droit not loi, recht not gezets> The
law is made up of not only a body of precepts but also a body of innate and received ideals.
(1) Precepts – deals with the prescribed directions and trends concerning a given subject matter.
(a) Rules – define or set the farthest limits of human activities and actions. Composed of
definite provisions for definite states of facts to which certain definite incentives or sanctions
or both are attached as means of enforcement
 (b) Principles – are authoritative premises for legal and juristic reasoning when a question not
governed or covered by a rule for adjudication. Do not contain incentives and sanctions.
Their importance lies in the fact that they may become the basis of rules, concepts and
standards.
(c) Concepts – are general categories into which specific cases and things may be classified.
Examples are legal concepts on:

1. Possession 2. Agency 3. Contract

4. Intention 5. Consideration 6. Negligence
This element of the law is important because it sets the materials of the law in proper order
and symmetry, reducing the mass of rules into manageable size>
(d) Standards – are models or criteria to test or measure the validity of specific acts for the
purpose of determining responsibility in the absence of specific rules. Examples of
standards are the standards of fair competition, diligence, and good faith.
1. Standards of fair competition – condemn acts characterized by force, intimidation,
deceit, machination, or any other unjust, oppressive, or high-handed methods giving
rise to a cause of action by the person who thereby suffers damage. The essence of fair
competition is giving free and equal opportunity to all in order to make choice or
decision and other transactions and enterprises or any lawful calling without restraint or
intervention from anyone other than for causes which the law accepts and recognizes.
2. Standards of diligence (bonae pater familae / care of a good father of a family) – is
designed to minimize or prevent wrongful acts or omissions. Negligence is then simply
the absence of diligence.
3. Standards of good faith – the honest belief in the validity of one’s right, ignorance of a
superior claim and absence of intention to overreach another.

(2) Ideals
(a) Juristic ideals – rational theories which may reshape or change the contents of legal rules
and legal precepts. Example: Ordered Liberty, constructed by Justice Benjamin Cardozo
(US SC) in the case Palko v. Connecticut --- “the rights guaranteed by the constitution to
the people are valuable and important but not all of them are of the very essence of a
scheme of ordered liberty.” This means that there are certain rights that can be “withdrawn
or abolished and yet to do so is not to violate the principle of justice so rooted in the
tradition and conscience of our people as to be ranked as fundamental.” Examples are
immunity from self-incrimination, immunity from double jeopardy
(b) Ethical ideals are meant rational theories or syntheses of moral responsibility and decent
individual and group behaviour where the aim is toward higher moral ground. It refers to
what human conduct and expectations should be.
Examples –
1. Loving one’s neighbour as set by Jesus Christ (basis of Tort rule that a person must not
cause damage or injury towards another by taking reasonable care)
2. No one can enrich oneself at the expense of another (embodied in the rule that everyone
who acquires or comes into possession of something at the expense of another without
just or legal ground must return the same)
(c) Political ideals – are meant rational theories and syntheses for the fuller direction of the
political processes and for the maintenance of the general welfare and security of the
people.
Examples –
 1. Un Moi Commun - Jean Jacques Rousseau posited the idea that general will resides in
the people. Since general will is directed toward the common good then it is always just
and should prevail for the voice of the people is the voice of God.
This ideal was applied to Pavesich v. New England Life Insurance Company, and
Metropolitan Service v. Paredes (Phil SC) stated that “sovereignty is derived from the
will of the people, by the people, and for the people”
(d) Economic ideals – meant rational theories and syntheses for the efficient development of
the economy. They refer to the economic goals for the betterment of supply of limited
goods and services and their distribution to meet the enormous needs of the people.
4. Nonjural Law
A. Divine Law
(1) General Sense
(2) Strict Sense
B. Natural Law
(1) Historical Background
(2) Concept and Precepts
(3) Place and Function in Legal Order
a. Justificatory Use
b. Oppositive Use
c. Regulatory Use
d. Interpretative Use
C. Moral Law
(1) Moral Order
(2) Moral Norms
(3) Moral Law and Other Disciplines
(4) Moral and Social Norms
D. Physical Law
(1) Nature and Attributes
(2) Discovered Norms
(3) Distinguished from Jural Law
(4) Distinguished from Divine Law

Philosophy – the study of the fundamental nature of knowledge, reality, and existence, especially
when considered as an academic discipline.