Professional Documents
Culture Documents
Legal Philosophy
Legal Philosophy
Legal Philosophy
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:
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.
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.
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:
(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.