LEGAL PHILOSOPHY - COURSE OUTLINE

I. WHAT IS LEGAL PHILOSOPHY?

1. Thomas Aquinas: Scholastic Definition of Philosophy and Law

2. Herbert Lionel Hart: Concept of Law
3. Jurgen Habermas: Rationality and Law
4. John Dworkin: Theory of Adjudication and Model of Rules

1. Thomas Aquinas: Scholastic Definition of Philosophy and Law

Aquinas defined law as "an ordinance of reason for the common good, made by him who has
care of the community, and promulgated."

There are four kinds of laws in his natural law theory: eternal, natural, human, and divine.

ETERNAL - is that law which is a "dictate" of God's reason. Divine Providence rules the universe,
and Divine Providence governs by divine reason, then the rational guidance of things in God the
Ruler of the universe has the nature of a law.

NATURAL - is a rule of reason, promulgated by God in man's nature, whereby man can discern
how he should act.

Principle of Natural Law - "good is to be pursued and done, and evil is to be avoided. Those to
which man has a natural inclination are naturally apprehended by reason as good and must
thus be pursued, while their opposites are evil which must be avoided. Aquinas identifies the
basic inclinations of man as follows:

1. To seek the good, including his highest good, which is eternal happiness with God.
2. To preserve himself in existence.
3. To preserve the species — that is, to unite sexually.
4. To live in community with other men.
5. To use his intellect and will — that is, to know the truth and to make his own decision."

HUMAN - From the precepts of natural law, human reason needs to proceed to the more
particular determinations or specialized regulations to declare what is required in particular
cases considering society's specific circumstances. These particular determinations, arrived at
by human reason, are called human laws (Aquinas' positive law).

DIVINE - is given by God, i.e., the Old Testament and the New Testament. This is necessary to
direct human life for four reasons:

1. through law, man is directed to proper actions towards his proper end.
 2. because of uncertainty in human judgment, different people form different
judgments on human acts, resulting in different and even contrary laws.
3. human law can only judge the external actions not interior motives; The divine
law thus supervenes to see and judge both dimensions.
4. because human law cannot punish or forbid all evils, divine law is needed.

2. Herbert Lionel Hart: Concept of Law

- NOT all laws are coercive. It involves “internal aspect” of obedience. It is obeyed out
of a sense of internal obligation. In most cases, people obey the law even though
they know there are no sanctions.
- He criticized John Austin’s COMMAND theory (commands by sovereign are backed
by the threat of punishment)
- RULE OF RECOGNITION (citizens voluntarily obey the laws of the land because they
accept as VALID the RULEMAKING INSTITUTION CLAIM to the EXERCISE OF
AUTHORITY). It is the primary rule establishing groups or persons as the state’s
primary rule-making institutions.

Example: People believed that witchcraft is evil as claimed by their accepted valid
rulemaking institution.

- SOFT POSITIVISM or INCORPORATIONISM – law is still a law, even mixed with

additional criteria for it to be valied: Moral Criteria. HOWEVER, this does NOT mean
that law and morality are permanently intertwined; they may still be separated
because morality is NOT an innate component of law.

Example: If there is a clause to be added in a fundamental law: No law can be passed

which prohibits the establishment of a religion.

NOTE: Opposed by Joseph Raz: HARD POSITIVISM – Moral argument would have
nothing to do with a law’s validity and enforceability but only the latter’s source,
legitimacy of its proponents and promulgators.

3. Jurgen Habermas: Rationality and Law

Understandings of law and society - as a benign science of technocratic policy within a broader
system of beliefs that legitimized the prevailing social order.

Habermas, however, who formulates procedures for attaining rational consensus,

4. RONALD Dworkin: Theory of Adjudication and Model of Rules

- Theory of Adjudication (middle ground between Natural law and legal positivism).
 - Law is a seamless system.
- If there are NO applicable laws, judges may turn to PRINCIPLES or other legal
standards (norms, moral policies, and rules in the legal system).
- One has to look BEYOND RULES and weigh the societal norms.
- Criticized Hart’s one standard in deciding a case - law is nothing more than a rule.
- NOT only rule bound

COMPARE:

Legal Realism by Jerome Frank – LAW is INDETERMINATE; subject to human imperfections,

eccentricities, weaknesses and foibles.
Legal Realism- Law is WITHIN the deeper context of society. Society’s impact is as equal as the
law’s impact to society.
Legal Instrumentalism – species of legal realism; looks at law beyond the text or legislative
intent; laws, principles, and ideas are tools or instruments in resolving the puzzles of life.
Freedom and creativity given to the judges in interpreting the law.
Justice Benjamin Cardozo – judges must construct the law and thus guide legal jurisprudence.
Judges must construct the law – JUDICIAL LEGISLATION
Natural law v Legal Realism – latter involves WHAT SHOULD BE the law, and WHAT OUGHT TO
BE the law; former merely describes the law
Legal formalism – involves highly syllogistic form of legal reasoning; in legal realism, it
UNDERCUTS the authority of judges to decide a case.
Legal Realism – the law is what judges so decide. A case is much more complex. It is decided
with EXTRALEGAL factors.

DISCRETION THESIS – judge unwittingly make NEW LAW; judges are influenced by political,
religious, and moral convictions and not Strictly by legal considerations; almost the same as
Dworkin’s theory of adjudication BUT latter furthers that judges are quite Free to explore and
use the larger society’s principles, norms and values in decision-making.

PREDICTION THEORY OF LAW by U.S. Supreme Court Justice Oliver Wendell Holmes Jr. – follows
behaviorist conception of law. He discards previous definitions of law, but says LAW is
NOTHING but the PREDICTION of HOW THE COURTS will behave. (Works: THE PATH OF THE
LAW)

Holmes - law should be written from the viewpoint of the bad man (who cares only for
MATERIAL CONSEQUENCES).

Legal Realism EXAMPLE: Estrella’s Fairy Tale for the City – seduction of a young girl by a married
man (POETIC JUSTIC turned as an immoral literary piece: because of society’s influence on the
direction of the outcome of the law, sensibilities of the 21 st century). Case of Hopkin’s buring of
flag – less restrictive interpretation of the law.
FORMALIST FICTION – implied in legal formalism; law is a closed system and admits no other
normative consideration as because the PROCESS leading to the enactment of laws had already
included normative or other societal considerations.

A. INTENTIONALISM/ORIGINAL UNDERSTANDING/ORIGINALISM – interpret the law

referring to its ORIGINAL INTENT or meaning AS IT WAS UNDERSTOOD at the TIME THE
LAW WAS WRITTEN.

Subdivisions:
a. Original Intent theory – law’s meaning should be consistent with the
meaning held by the people who drafted it.
b. Original meaning theory – law’s meaning should also be (aside from the
drafters) based on what the ordinary and reasonable people living at the
time the law was written would have understood the law.

Legal intentionalist – legislative powers need NOT be tampered; it adheres to the separation
of powers doctrine.

Example: Gerona case – flag salute as a symbol of allegiance (POLITICAL and not a religious
exercise). Hence, expulsion for refusal to salute is punished

B. TEXTUALISM – what the text of the law would reasonably be understood to mean; what
plain text means taken in terms of the common public understanding of the text. It does
not are about legislative intent.

Example: Ebralinag v. Division Superintendent Schools of Cebu – upheld that flag salute
involves exercise of religious. Hence, reversed expulsion.

Ethical Relativism – NO absolute or standard criteria of morality; it depends on how society or

history defines something ethical. Teaches one tolerance and allowing for diversity.
Ethnical Relativists – believe that there is NO universal yardstick in ethics; since moral code of a
society are culture bound and hence, it differs from one to another place.

Professor James Rachels of University of Alabama – Opposed ethical relativism; regardless of

differences on what is moral, there will still be one place upholding a certain morality that is
right. It is possible one of them can be wrong based on objective standards.

Example: Jus cogens: international agreements in derogation of jus cogens/peremptory

norm are VOID. Slavery, piracy, genocide, torture, and unlawful use of force.
UTILITARIANISM/GREATEST HAPPINESS THEORY by JEREMY BENTHAM– an act is MORALLY right
if the good elements of the act surpass the bad ones. Mankind is governed by PAIN and
PLEASURE. Happiness and pleasure is good and which gives pain and misery is EVIL.

FELICIFIC CALCULUS – also called the hedonic calculus or the formula in computing the
units of happiness.

JEREMY BENTHAM’s student JOHN STUART MILL – some pleasures are more valuable
than others; it differentiated pleasures such as: spiritual, cultural, and intellectual
(higher pleasures) and physical pleasure (lower pleasures). Hence, attainment of virtue,
justice and others is more valuable to that of sensory or selfish pleasures.

One is entitled to AUTHORITY – only if it promotes HAPPINESS/GOODWILL/COMMON

BENEFIT for the greatest number.

THOMAS HOBBES – strong central government and strict implementation of laws are
necessary in order to implement this “greatest happiness for the greatest number”.

Bentham opposes Hobbes – influenced by laissez-faire economics, this is achieved

through minimum governance and limited state authority. Coercive action and harsh
implementation of laws deprive the citizens freedom and happiness.

ACT UTILITARIANISM – rule is to be disregarded without hesitation, when it clearly conflicts

with the general welfare or where acts does not produce the greatest good for the greatest
number. DO those acts that are for the GENERAL WELFARE. ACT U treats the RULE as a rule of
thumb but not enslaved by the latter. It has a choice whether to act upon and in accordance to
it, if for general welfare, then act.

RULE UTILITARIANISM – adopt the rule which yields to the production of the greatest
good/happiness for the greatest number.

UTILITARIAN ARGUMENT (SUMMARY):

Consequence proposition: actions are judged right or wrong based on their

consequences. EXAMPLE: Judge convicted a man sleeping on the street just to satisfy
the COMMUNITIES although prejudicial to the only one accused. A promised to B to pay
10k, it is okay not to pay because there is better reason: To donate the money to
homeless people.

Happiness proposition: the action is right if it causes more happiness than unhappiness.
EXAMPLE: Ballet dancer stricken with polio is bad not because it caused unhappiness
but because it prevented her to express her life’s passion to dancing and achieving other
things with higher pleasure.
 Equality proposition: each one’s happiness is equally important. Acting impartially as a
disinterested and benevolent spectator. Every person’s welfare is equally important.
EXAMPLE: Euthypro’s lack of qualms in prosecuting hi own father for a crime. A person
leaving parents in a burning hospital so save sick scientist working on a possible cure for
aids.

Readings: Aquino, pp. 35-114; Bernardo, et.al., 1-30; Golding, et.al., 1-12; Tabucanon, 1-48.

Cases:

Sanidad vs. Comelec, 73 SCRA 333

The United Kingdom vs. Albania, 1949 I.C.J. 4 (The Corfu Channel Case)
Marburry v. Madison, 5 US (1Cranch) 137
People vs. Pomar, 46 Phil. 440
Del Monte Corporation vs. Court of Appeals, 131 SCRA 410
Asia Brewery vs. San Miguel Corporation, G.R. No. 103543, July 5, 1993
Republic of the Philippines vs. Meralco, G.R. 14314, November 15, 2002
Adong v. Cheong Seng Gee, 43 Phil. 43
Duran vs. Abad Santos, G.R. L-99, November 16, 1945

II. NATURAL LAW: THE CLASSIC, SCHOLASTIC, ENLIGHTENMENT & POSTMODERN

PHILOSOPHERS

1. The Stoics: Jus Naturale

2. Plato on Ideal Law and the Republic
3. Aristotle on Rational Law
4. Thomas Aquinas on Natural Law
5. Immanuel Kant and the Enlightenment Philosophers on Natural Rights
6. Natural Law as the Law of Nations
a. Hugo Grotius
b. William Blackstone Commentaries
c. Jacques Maritain
7. John Finnis: Natural Law and Natural Rights
1. The Stoics: Jus Naturale

The good of the people is the greatest law.

Stoics = who believed that there is a TRUE LAW discoverable by RIGHT REASON and shared by
all persons. These are jus gentium founded on jus naturale.

Stoics on natural law = there is equality of all men, governed by the same law; whatever one’s
status in life, one can find happiness in doing what is good.

Stoic = apathy (suppressing emotions and sensitivity to pleasure or pain, to clear the mind of
what is really good

Marcus Tullius Cicero, Stoic Philosopher = Law ought to be a reformer of vice and an incentive
to virtue. Men have different beliefs but experience the same troubles, joys, desires, and fears.
We differ from choices of words but we express the same sentiments. Statute cannot be called
law if it is irrational, destructive, and unjust.

Cicero’s works:
I. The Commonwealth: A man who rejects natural law is denying his
rational nature (his better self).
II. De Legibus: We are born for justice, and that right is based upon Nature
(not upon men’s opinions).

2. Plato on Ideal Law and the Republic

The Republic: envisions a Statist type of regime ruled by a benevolent dictator — an educated
philosopher-king. State plans society according to ideals, an idea embraced by Fascism and
Communism alike. The role of the ruler is to get society close to the perfect form.

Ideal law: Natural law, for Plato, is not the law of the common man, but the law of the ideal
man. The ideal man like Super Man, does not exist, and yet we have a common idea of what a
perfect man should be and this should be the goal of law.

Example:

- We craft marriage laws because we want an ideal family, not just any family.
- Our political Constitution is meant to build an ideal government.
- We dream of the ideal romance, the ideal politics, the ideal version of ourselves.
---

In The Laws: Plato conceived a more diplomatic state, whose laws appeal to people’s reason
and rational discourse. Punishment is not necessary, provided that through successful
education and socialization, the people have been predisposed to observe what the State
contemplates as right via rational persuasion.

Again, laws have to be preceded by preambles to convince the people of the rightness of their
provisions. Reasoned thought must be embodied in laws.

Those who are resistant will have to undergo both “instruction” and “constraint.” Only at this
time will correction happen, not only through education but through coercion.

EXAMPLE: Our Philippine Constitution operates on this same principle, where the death penalty
shall not be imposed except for compelling reasons as determined by legislators.

3. Aristotle on Rational Law

- Human beings have a rational nature that must be followed as a matter of law.
- Nicomachean Ethics: Aristotle said that happiness is the final goal or end (telos) of all of man’s
pursuits.
- While people have different functions and interests in life, and things that can make them
happy; they have a common function — reasoning (GOLDEN MEAN OF LIVING) — that
separates them from other species.
- Reason makes us perceive what is excessive, pursue a balanced life, and to seek what is
appropriate, fair, just, and right.
- Virtue is the practice of reason.
- A happy person has the disposition (hexis) to virtue (arete);
- being a man of “character” (ethos), of moderation.
- no man is self-sufficient. Man is given the faculty of language because he needs to socialize
effectively.

EXAMPLE: Jose Rizal: Los Viajes: Virtue lies in the middle ground.
Tolentino: happiness, which cannot exist for man, except through a permanent
and stable equilibrium between human personalities.

A good government establishes a political law that conforms with rational principles of right
and equity. There must be a constitution (politeia) and laws (nomos) must be promulgated.

Aristotle distinguished six types of constitutions.

The first three are:

monarchy (one-man rule),

aristocracy (rule of few good men), and
polity (rule of men with equal merits).

Their worst forms are the last three:

 tyranny,
oligarchy, and
radical democracy.

Polity or democracy is the most stable since monarchy risks the intemperance of its
leader, while rivalries and infighting hound an aristocracy.

Democracies are more secure when there is a large number of empowered middle class
than when a population is divided into the extremes of poor and rich. Both the rich and
the poor classes have the tendency to inequity. REASON: The aim of a good state is “the
good life,” with the middle class as the basis of progress.

4. Thomas Aquinas on Natural Law

- Aristotle sainted
- There is necessity of divine law
- law coming from divine revelation
- while natural law is enough to guide man to his NATURAL ENDS, divine law is needed for him
to realize his SUPERNATURAL ENDS.
- for human machine to function, one must follow his maker’s instructions, these instructions
are the law.
- Human law and justice are not always effective, hence reliance to DIVINE law is needed.
- Right can be NATURAL or POSITIVE RIGHTS.

Natural rights – those that each man must give to another man out of equality.
Positive rights - is borne by agreement, either by private agreement among individuals,
or by public agreement, by the ruler and the community.

Aquinas’ works: Summa Theologica: Precepts of Natural law – 5 Natural Inclinations

I. Primary inclination – to do good, and avoid evil (good means to sustain
our being)
II. Secondary inclination – self-preservation
III. Third inclination – to perpetuate ourselves
IV. Fourth inclination – is to live in community with other men, in families,
groups, and societies.
V. Fifth inclination - to use reason and will/to know the truth and to make
our decisions.

Natural law is a general guide, its details and the gaps are filled in by the human law through
statutes. These laws can be abolished through customs and sense of necessity/urgency.

Suarez opposed Aquinas - no man-made law can override natural rights to life and liberty.
(Erroneous because, the proposition of Aquinas is not that man-made laws overpower natural
law, but rather, they must go hand in hand. They do not contradict each other but must
harmonize each other (positive and natural law), with the divine law.

5. Immanuel Kant and the Enlightenment Philosophers on Natural Rights

EPNR: In Natural Law Theory, rights are natural and inherent. They do not need to be
created but only to be “recognized” or “declared”.

Human rights are rights that flow from human nature, from the demands and dignity of
being human, and therefore should be given to every human being.

Objectivism in EPNR: Reason and rationality as the only absolutes in life. Society is a
contract with natural rights as part of the terms, without the religious underpinnings
(Ayn Rand, author of Atlas Shrugged).

KANT: Reformulated the Golden Rule into the “categorical imperative” of always acting
the way one would like his act to be the universal rule, also called as “deontology.”

6. Natural Law as the Law of Nations

a. Hugo Grotius

W - Dutch jurist: The Law on War and Peace; Father of International Law
W - Natural law as the basis for a law of nations
W - Advantage not of select states but the great society of states following “the law of
nations”
W - states may not take away the natural right to life and property of individuals.
W
b. William Blackstone Commentaries

- Natural laws are eternal immutable laws of good and evil that the Creator enabled our
reason to discern.
- “That we should live honestly, hurt nobody, and render to everyone his due (AKA
Justice)
- The law of nations cannot be dictated by any particular State, or by any man, but
depends entirely upon the rules of natural law on the equality of men and mutuality of
contracts, treaties, leagues, and agreements.
- Declaratory theory of precedent: judges do not create but only “declare,” expound, or
lay down the existence of a custom, and expresses commonly shared values; Common
law: Common law is the “accumulated wisdom of the ages.” The Judge: is a living oracle
of the law who gives witness to it.

c. Jacques Maritain
 - law of nations is now known as international law
- UDHR: first universal document of IL, is grounded on natural law
- natural imperatives are known through “connaturality” or our direct acquaintance with
human experience. International law developed from an understanding that there are
universal aspirations common to humanity, demandable everywhere as a matter of right
and must be made available to everyone.
- These are rights inherent to being human to which no State can exempt itself, and
violations of which will be regarded as crimes against humanity and against the interest
of the international community.
- The Rights of Men and Natural Law: the common good of society is their communion in
the good life; the very notion of person means totality; it demands recognition of the
fundamental rights of the person and the rights of the family of persons to live as
persons and to their freedom of expansion or autonomy.

Example:

1. Nuremberg trial: Nazi officers were convicted even though nulla crimen sine lege,
but based on natural law on crimes against humanity.
2. Justice Perfcto: Yamashita convicted for invasion of the Philippines; based on natural
law, Yamashita might not be answerable under Philippine law but he was under the
universal law of mankind.

7. John Finnis: Natural Law and Natural Rights

In Natural Law and Natural Rights: Finnis wrote that there are seven “basic goods” natural to
man: life, knowledge, play, aesthetic experience, sociability (friendship), practical
reasonableness, and religion (transcendence).

These needs or deep human desires are recognized by anyone with sufficient reason and
experience, and thus cannot be eliminated from humanity, which is why they are “natural.”
These “basic” goods generate into “natural rights” and correlative “natural duties.”

These are “natural inclinations” according to human experience; and thus, are empirical, not
metaphysical, concepts.

This is what is meant by saying that natural rights are “self-evident” and “non-derogable.”

Readings: Bernardo, et.al., 60-102; Coquia, 198-244; Golding, et.al., 15-28, 287-299; Tabucanon,
111-116, 163-176, 188-190.

Cases:
Republic of the Philippines vs. Sandiganbayan, G.R. No. 104768, July 21, 2003
ADMU vs. Capulong, G.R. No. 99327, May 27, 1993
Yamashita vs. Styer, G.R. No. L-129, December 19, 1945
Caraos vs. Daza, G.R. No. L-442, May 23, 1946
Tecson vs. Desiderio, Jr., G.R. No. 161434, March 3, 2004
US vs. Guendia, G.R. No. L-12462, December 20, 1917
US vs. Santos, G.R. No. L-12779, September 10, 1917
People vs. Pomar, G.R. No. L-22008, November 3, 1924
In re: Columns of Amado Macasaet in Malaya, A.M. No. 07-09-13-SC, August 8, 2008
People vs. Velasco, G.R. No. 127444, September 13, 2000
Laurel vs. Misa, G.R. No. L-409, January 30, 1947
Manzanares vs. Moreta, G.R. No. L-12306, October 22, 1918

III. CIVIL LAW: ROMAN JURISTS TO CONTEMPORARY THINKERS

1. Justinian on Codification of Law

2. Cicero: De Legibus
3. John Locke on Private Property
4. Robert Nozick: Enlightenment Theory
5. Latin Maxims

1. Justinian on Codification of Law

- Justinian Code or the Roman Law Code (6th century A.D.).

- Article 364 of our Civil Code then comes into play. “Where there has been bad faith,
not only on the part of the person who built, sewed, or planted on another’s land,
but also on the part of the owner of the latter, the rights of both shall be the same
as if they had acted in good faith. Bad faith on the part of the owner is deemed to
exist whenever the act has been done in his presence, with his knowledge and
tolerance, and without opposition on his part.” (Article 364, Civil Code; see also arts.
1303, 1306, ibid.)
- The codal section is evidently based upon the vulnerable maxim of equity that one
who comes into equity must come with clean hands.

2. Cicero: De Legibus

- In De Legibus, Cicero wrote that “we are born for Justice, and that right is based, not
upon men’s opinions, but upon Nature.” Law “ought to be a reformer of vice and an
incentive to virtue.”
- Men experience the same troubles, joys, desires, and fears. The same things
stimulate the senses. And although we may differ in our choice of words and in our
 language, we express the same sentiments. We may have different cultures, but we
recognize the same virtues.
- By “law” inheres the idea of what is just and true.
- Cicero argued that neither can a statute be called “law” if it is irrational, destructive,
and unjust.

3. John Locke on Private Property

- John Locke believed that as God gave us dominion over our bodies, He gave us
dominion over things we put value out of our labor. Although the earth is common
to man, Locke said, what man puts value through his labor becomes his own. As a
corollary, what one does not work for he cannot own.

4. Robert Nozick: Enlightenment Theory

- For Robert Nozick, who developed the “entitlement theory,” people are entitled to
the things they earned, worked for, or produced.
- They are also entitled to bequeath the same to others, such as to their families. It is
a fact of life that “things do come into the world already attached to people having
entitlements over them,” Nozick argued in Anarchy, State, and Utopia.
- These entitlements may not be seized upon even if it is to provide equality of
opportunity to others.
- Just distribution is met whenever a person has satisfied the legal entitlements to
acquire or to be a transferee of a property, so long it was not stolen, seized, or
gained through fraud of others.
- If a property was legally acquired, it may not be seized by the government for
redistribution.

5. Latin Maxims

Latin Legal Maxims/Precept 1987 Philippine Constitution

Accusare nemo se debet, nisi caram Deo. Art. III, Sec. 17. No person shall be compelled to be a
(No one is compelled to accuse himself, except before God.) witness against himself.

Audi alteram partem. Art. III, Sec. 14. (2) In all criminal prosecutions, the
(Hear the other side.) accused...shall enjoy the right to be heard by himself and
counsel...to have a speedy, impartial, and public trial.

Domus sua cuique est tutissimun refugium. Art III, Sec. 2. The right of the people to be secure in their
(To everyone, his house is his surest refuge.) persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable...

Non bis in idem. Art. III, Sec. 21. No person shall be twice put in jeopardy of
(No one shall be punished for the same offense.) punishment for the same offense.

Latin Legal Maxims/Precept New Civil Code

Accessorium sequitur naturam sui principalis.
(The accessory follows the nature of its principal.)
Aedificium solo credit.
(The building yields to the land.)
Boni judicis est lites dirimere.
(It is the duty of good justice to prevent litigation.)
Caveat emptor.
(Buyer beware.)
Ex pacto illicito non oritur action.
(No action arises out of illicit bargain.)
Facta legem facunt inter partes.
(Stipulations have the force of law between parties.)
Finita voluntate, finitum est mandatum.
(Upon the termination of the will, the agency is terminated.)
Genus nunquam peruit.
(Generic things do not perish.)
Homo est et qui est futurus.
(He is already a man who will become a man.)
Ignorantia legis excusat.
(Ignorance of the law does not excuse.)
In pare delicto potior est conditio defendatis.
(Where both parties are at fault, the condition of the
defendant is better.)
Leges posteriores priores contrarias abrogant.
(Later statutes repeal prior ones which are repugnant thereto.)
Legis interpretation legis vim obtinet.
(Judicial interpretation of a statute acquires the force of law.)
Les non cogit ad impossibilia.
(The law does not require the impossible.)
Lexprospicit,nonrespicit.
(The law looks forward, not backward.)
Nel consensui tam contrarium est quam vis atqui meus.
(There can be no consent under force or duress.)
Non consentit qui errat.
(He who errs does not consent.)
Art. 466. Whenever two movable things belonging to
different owners are, without bad faith, united in such a way
that they form a single object, the owner of the principal
thing acquires the accessory, indemnifying the former owner
thereof for its value.
Art. 445. Whatever is built, planted or sown on the land of
another and the improvements or repairs made thereon,
belong to the owner of the land xxx.
Art. 2029. The court shall endeavor to persuade the litigants
in a civil case to agree upon some fair compromise.
Art. 1563. In the case of contract of sale of a specified article
under its patent or other trade name, there is no warranty as
to its fitness for any particular purpose, unless there is a
stipulation to the contrary.
Art. 1352. Contracts without cause, or with unlawful cause,
produce no effect whatever. The cause is unlawful if it is
contrary to law, morals, good customs, public order or public
policy.
Art. 1159. Obligations arising from contracts have the force
of law between the contracting parties and should be
complied with in good faith.
Art. 1920. The principal may revoke the agency at will, and
compel the agent to return the document evidencing the
agency. Such revocation may be express or implied.
Art. 1263. In an obligation to deliver a generic thing, the loss
or destruction of anything of the same kind does not
extinguish the obligation.
Art. 40. Birth determines personality; but the conceived child
shall be considered born for all purposes that are favorable to
it, provided it be born later x x x.
Art. 3. Ignorance of the law excuses no one from compliance
therewith.
Art. 1192. In case both parties have committed a breach of
the obligation, the liability of the first infractor shall be
equitably tempered by the courts. If it cannot be determined
which of the parties first violated the contract, the same shall
be deemed extinguished, and each shall bear his own
damages.
Art. 7. Laws are repealed only by subsequent ones
Art. 8. Judicial decisions applying or interpreting the laws or
the Constitution shall form a part of the legal system of the
Philippines.
Art. 1348. Impossible things or services cannot be the object
of contracts.
Art. 4. Laws shall have no retroactive effect, unless the
contrary is provided.
Art. 1330. A contract where consent is given through
mistake, violence, intimidation, undue influence, or fraud is
voidable.
Nemo dat quod non habet.
(No one can transfer a greater right to another than one has.)
Optimus interpres rerum usus.
(The best interpreter of the law is usage.)
Pacta sunt servanda.
(Stipulations of parties must be complied with in good faith.)
Partus sequitur ventrem.
(Offspring follow the mother.)
Proximus sum egomet mihi.
(Charity begins at home.)
Prius in tempore, potior in jure.
(First in time, first in right.)
Privatum incommodum publico bono pensatur.
(The private interests of the individual must give way to the
accommodation of the public.)
Qui approvat non reprobate.
(He who approves or ratifies cannot repudiate.)
Qui prius jus suum insina verit praeferetur.
(He is preferred whose right has just been recorded.)
Quod ab initio non valet in tractu temporis non convalescit.
(That which was originally void, does not by lapse of time
become valid.)
Sic utero tuo ut alienum non laedas.
(Use your property as not to injure the rights of others.)
Ubi jus, ibi remedium.
(Where there is a right, there is a remedy for violation
thereof.)
Vigilantibus et non dormientibus jura subveniunt.
(The law aids the vigilant, not those who slumber on their
Art. 1505. Subject to the provisions of this Title, where
goods are sold by a person who is not the owner thereof, and
who does not sell them under authority or with the consent of
the owner, the buyer acquires no better title to the goods than
the seller had, unless the owner of the goods is by his conduct
precluded from denying the seller’s authority to sell.
Art. 1376. The usage or custom of the place shall be borne in
mind in the interpretation of the ambiguities of a contract,
and shall fill the omission of stipulations which are ordinarily
established.
Art. 1315. Contracts are perfected by mere consent, and from
that moment the parties are bound not only to the fulfillment
of what has been expressly stipulated but also to all the
consequences which, according to their nature, may be in
keeping with good faith, usage and law.
Art. 442. Natural fruits are the spontaneous products of the
soil, and the young and other products of animals.
Art. 294. The claim for support, when proper and two or
more persons are obliged to give it, shall be made in the
following order: (1) From the spouse; (2) From the
descendants of the nearest degree; (3) From the ascendants,
also of the nearest degree; (4) From the brothers and sisters.
Art. 1544. If the same thing should have been sold to
different vendees, the ownership shall be transferred to the
person who may have first taken possession thereof in good
faith, if it should be movable property x x x.
Art. 435. No person shall be deprived of his property except
by competent authority and for public use and always upon
payment of just compensation.
Art. 1392. Ratification extinguishes the action to annul a
voidable contract.
Art. 1544. x x x Should it be immovable property, the
ownership shall belong to the person acquiring it who in good
faith first recorded it in the Registry of Property. Should there
be no inscription, the ownership shall pertain to the person
who in good faith was first in the possession; and, in the
absence thereof, to the person who presents the oldest title,
provided there is good faith.
Art. 1409. The following contracts are inexistent and void
from the beginning x x x These contracts cannot be ratified.
Neither can the right to set up the defense of illegality be
waived.
Art. 431. The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third person
Art. 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable
to the latter for damages.
Art. 1106. By prescription, one acquires ownership and other
real rights through the lapse of time in the manner and under
rights.)
Latin Legal Maxims/Precept
Actus non facit reum nisi mens sit rea.
(The act does not make a person guilty unless the mind is
also guilty.)
Arma in armatos jura sinunt.
(The law permits taking arms against armed persons.)
Favorabilia sunt amplianda, odiosa restringenda.
(Penal laws which are favorable to the accused are given
retroactive effect.)
Furiosus solo furore punitur.
(A mad man is punished only by his madness.)
Actus invitus, non est meus actus.
(An involuntary act is not one’s act.)
Nullum crimen, nulla poena sine lege.
(There is no crime where there is no law punishing it.)
Sociis fit culpae qui nocentum sublevat.
(He who helps the guilty shares the crime.)
Latin Legal Maxims/Precept
Cujus juris erit accessorium.
(He who has jurisdiction of the principal thing has
jurisdiction of the accessory also.)
Res judicata inter partes jus facit.
(A question adjudicated between parties after hearing them
makes the law of that question.)
Stare decisis et non quieta movere.
(Follow past precedents and do not disturb what has been
settled.)
De similibus idem est judicium.
(Concerning similars, the judgment is the same.)
Latin Legal Maxims/Precept
Ei incumbit probation qui dicit, non qui negat.
(He who asserts, not he who denies, must prove.)
the conditions laid down by law. In the same way, rights and
conditions are lost by prescription.
Revised Penal Code
Art. 12. Circumstances which exempt from criminal liability.
— The following are exempt from criminal liability: 4. Any
person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention
of causing it.
Art. 11. Justifying circumstances. — The following do not
incur any criminal liability: 1. Anyone who acts in defense of
his person or rights, provided that the following
circumstances concur; First. Unlawful aggression; Second.
Reasonable necessity of the means employed to prevent or
repel it; Third. Lack of sufficient provocation on the part of
the person defending himself.
Art. 22. Retroactive effect of penal laws. — Penal Laws shall
have a retroactive effect insofar as they favor the persons
guilty of a felony, who is not a habitual criminal x x x.
Article 12. Circumstances which exempt from criminal
liability. — The following are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted
during a lucid interval. x x x 5. Any person who act under the
compulsion of irresistible force.
Art. 3. Acts and omissions punishable by law are felonies x x
x.
Art. 16. Who are criminally liable. — The following are
criminally liable for grave and less grave felonies: 1.
Principals. 2. Accomplices. 3. Accessories.
1997 Rules of Civil Procedure
Rule 6, Sec. 7. Compulsory counterclaim. — A compulsory
counterclaim is one which, being cognizable by the regular
courts of justice, arises outof or is connected with the
transaction or occurrence constituting the subject matter of
the opposing party’s claim and does not require for its
adjudication the presence of third parties of whom the court
cannot acquire jurisdiction. Such a counterclaim must be
within the jurisdiction of the court both as to the amount and
the nature thereof x x x.
Rule 39, Sec. 47. Effect of judgments or final order x x x (b)
In other cases, the judgment or final order is, with respect to
the matter directly adjudged or as to any other matter that
could have been missed in relation thereto, conclusive
between the parties and their successors in interest, by title
subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same
title and in the same capacity x x x.
Revised Rules on Evidence
Rule 131, Sec. 1. Burden of proof. — Burden of proof is the
duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of
 evidence required by law.

Non allegata non probate. Rule 132, Sec. 34. Offer of evidence. — The court shall
(That which is not alleged cannot be proved.) consider no evidence which has not been formally offered.
The purpose for which the evidence is offered must be
specified.

Qui tace consentire videtur. Rule 130, Sec. 32. Admission by silence. — An act or
(Silence means consent.) declaration made in the presence and within the hearing or
observation of a party who does or says nothing when the act
or declaration is such as naturally to call for action or
comment if not true, and when proper and possible for him to
do so, may be given in evidence against him.

Res ipsa loquitur. Rule 130, Sec. 1. Object as evidence. — Objects as evidence
(The thing speaks for itself.) are those addressed to the senses of the court. When an object
is relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court.

Semper praesumitur pro matrimonio. Rule 131, Sec. 3. Disputable presumptions — That a man
(Always presume marriage.) and woman deporting themselves as husband and wife have
entered into a lawful contract of marriage; x x x

Ut res magis valeat quam pereat. Rule 130, Sec. 11. Instrument construed so as to give effect
(The law should be interpreted to uphold than to destroy it.) to all provisions. In the construction of an instrument, where
there are several provisions or particulars, such a construction
is, if possible, to be adopted as will give effect to all.

Latin Legal Maxims/Precept Legal Ethics

Judex non potest injuriam sibi datam punier. Rule 137, Sec. 1.
(A judge cannot punish an injury to himself.) Disqualification of judges. — No judge or judicial officer
shall sit in any case in which he, or his wife or child, is
pecuniarily interested x x x.

Readings: Bernardo, et.al., 102-128; Aquino, 198-220; Golding, et.al., 122-162.

Cases:

Kasilag vs. Rodriguez, G.R. No. 46623, December 7, 1939

Jain vs. IAC and People, G.R. No. L-63129, September 28, 1984
People vs. Hon. Velasco, G.R. No. 127444, September 13, 2000

IV. CRIMINAL LAW AND FAMILY LAW: CHRISTIAN & CONTEMPORARY PHILOSOPHERS

1. Augustine: Law, Order and the City of God

2. Aquinas on Crime and Punishment
3. Dietrich von Hildebrand: Personalism
4. Karol Wojtyla: Domestic/Family Philosophy
5. Michel Foucault: Discipline and Punish

1. Augustine: Law, Order and the City of God

2. Aquinas on Crime and Punishment

- Aquinas justified the necessity of both civil and penal law.

- As a social animal, man needs civil law to determine how he will deal with others,
such as in buying and selling.
- Aquinas distinguished general from particular justice.
- General justice refers to legal justice that serves the community. It is also referred to
as “distributive justice” as it distributes the common good.
- Particular justice is in relation to individuals who are individually different.
- Rendering justice does not necessarily mean same treatment, but equitable
treatment, that is, rendering to each that “which is due to him according to equality
of proportion” = doctrine of reasonable classification under the Equal Protection
clause.
- Aquinas said that “we apply the word voluntary not only to that which proceeds
from the will directly, as from its action, but also to that which proceeds from it
indirectly as from its inaction”
- Violence and fear can cause involuntariness of actions, according to Aquinas. By
violence, one is externally compelled contrary to one’s will. In fear, one does an act
not because one wills it, but because one wants to avoid the evil feared
- Ignorance also causes involuntariness, but Aquinas distinguished between
antecedent, concomitant, and consequent ignorance

a. “Antecedent ignorance” is “ignorance of the circumstance of one’s act,” such as a man

who, despite precaution, shoots and hits a passer- by.

Antecedent ignorance in Aquinas is in Philippine law akin to mistake of fact (ignorantia

facti), which may excuse a party from the legal consequences of his conduct. It can also
refer to unintended accidents despite due care, without fault or intention.

b. Ignorance is “concomitant” when despite ignorance of what was committed, a criminal

act would nevertheless be done had the circumstances been right. Aquinas raised as
example a man who wished to kill his foe but instead killed a stag.

Concomitant ignorance can refer to aberratio ictus and error in personae in Article 4 of
the RPC, where there is an unintended commission of a felony when a different crime or
victim was in fact intended.
c. Ignorance is “consequent” if it was deliberate with respect to what one can and ought
to know.

Ignorance of the law applies to Aquinas’ consequent ignorance, as Article 3 of the Civil
Code provides that ignorance of the law excuses no one from compliance therewith
(ignorantia juris neminem excusat).

3. Dietrich von Hildebrand: Personalism

4. Karol Wojtyla: Domestic/Family Philosophy

- Wojtyla believed that it is his duty to reflect on the dignity of human sexuality at the
onset of the sexual revolution in the 60s.
- Wojtyla reminded us that what is “natural” to beasts is “subnatural” to humans
- Man has the power of self-determination and free will to choose his sexual acts,
unlike animals.
- Man is not simply a sexual being; he or she is a sexual person.
- Wojtyla reformulated the Kantian imperative in that anyone who treats another as
means to an end violates that person’s natural right to pursue his ends.
- Sexual objectification reduces a person to a consumer item,
- Pleasure is natural and good, but it is not the highest good. Love is the fullest
realization of the possibilities of man.
- Wojtyla spoke of “altero-centrism,” saying that the sexual instinct moves the “I” of
the instinct of self-preservation to the “I” of another
- Explaining self-sacrifice and self- limitation, Wojtyla said that man longs for love
more than freedom — freedom is the means and love is the end.
- A fully developed sexual relationship is only possible in a durable union where total
self- giving is encouraged.
- Total self-giving can be frustrated by contraception. If a man truly loves his wife, he
needs to accept and regard the natural order, the natural cycle of the woman, as
part of her being. The couple will see each other’s fertility as a gift, not a disease to
be medicated.
- Biological methods, besides causing temporary barrenness, may bring about serious
and irreversible changes in the organism
- Chemical means are in their very nature cellular poisons, otherwise, they would not
have the power to kill genital cells, and so they must be physically harmful.
- Mechanical means cause local injuries in the woman’s reproductive tract, and what
is more, interfere with the intensity of the act”

5. Michel Foucault: Discipline and Punish

Readings: Bernardo, et.al., 129-153; Golding, et.al., 107-121, 207-235; Tabucanon, 49-110.

Cases:

Echegaray vs. Secretary of Justice, G.R. No. 132601, January 19, 1999
Santos vs. CA and Bedia-Santos, G.R. No. 112019, January 4, 1995
Estrada vs. Escritor, A.M. P-02-1651, August 4, 2006
People vs. Dela Cruz, G.R. No. L-52, February 21, 1946

V. MERCANTILE LAW: FROM CUSTOMS TO LAW

1. Gerard de Malynes, Lex Mercatoria

2. Lord Mansfield: English Commercial Law
3. Adams Smith: The Wealth of Nations
4. Ayn Rand, Freedom of Production and Trade

1. Gerard de Malynes, Lex Mercatoria

In fact, what we now call international commercial practices can be traced to established
customs of ancient and medieval maritime trade, called as “lex mercatoria” or law merchant.

Lex mercatoria was a body of rules and principles laid down by medieval merchants to regulate
their deals. It was administered by special commercial courts along main trade routes, also
called as “fair courts.”

Lex mercatoria originated the “writing obligatory” that we now refer to as bills of exchange,
checks, and promissory notes.

2. Lord Mansfield: English Commercial Law

- As a natural law theorist, he said that “mercantile law is not the law of a particular
country, but the law of all nations.”
- Mansfield supported free trade, as he was steeped into ancient Greek and Roman
trading history and writers such as Cicero and Xenophon. Influenced by their natural
law principles, he believed that equity should be applied by the courts.

3. Adams Smith: The Wealth of Nations

- Adam Smith, who, in The Wealth of Nations, argued that commercial transactions
are legitimately based on self-interest since no one sells or buys without anything in
it for him. Nevertheless, it is for the interest of one’s business to improve the quality
of one’s products at competitive prices.
- Eventually, self-interest will yield to quality competitive goods that serve over-all
public interest. This is the “invisible hand” of capitalism where the self-interest to
survive in a free and competitive trade eventually serves public interest.

4. Ayn Rand, Freedom of Production and Trade

Readings: Bernardo, et.al., 154-169; Golding, et.al., 67-79.

Cases:

US vs. Tan Quingco Chua, G.R. No. L-13708, January 29, 1919
PNB vs. The National City Bank of New York, G.R. No. L-43596, October 31, 1936
Compagnie Franco-Indochinoise vs. Deutschaft, G.R. No. L-1395, January 17, 1919

VI. REMEDIAL LAW: THE EMPIRICAL PHILOSOPHERS

1. Francis Bacon’s Inductive Jurisprudence

2. David Hume’s on Presumptions, Probabilities and Exhuming the Evidence
3. Ludwig Wittgenstein’s Game of Doubt: Logical and Epistemological Considerations in Law

1. Francis Bacon’s Inductive Jurisprudence

- Bacon introduced his inductive method that requires (1) the accumulation of a store
of particular empirical observations in a tabulation or repository; (2) inductively
inferring lesser axioms, (3) then inductively inferring middle axioms, (4) and then
proposing the most general of notions.

- In other words, from careful observation of individual or particular cases, we arrive

into premises and general rules. Thus, from individual cases we can formulate
principles and doctrines.

- In making judgments, Bacon warned of the four “idols”: (1) the “idols of the tribe,”
referring to illusions of appearances and reliance on our primitive senses; (2) the
“idols of the cave,” referring to generalization of our limited “caved” experience; (3)
the “idols of the market,” or the imperfections coming from the choice of language
and communication; and (4) the “idols of the theater,” or the flaws of philosophies,
theories, and speculations.

2. David Hume’s on Presumptions, Probabilities and Exhuming the Evidence

- Rule 131 of the Rules of Evidence gives us a list of “disputable presumptions” that
are assumed true until contradicted by other evidence.

- The reason why we do favor probabilities is based on “custom,” that is, what we
became accustomed based on the evidence of past experience. Everything is
possible indeed, but in our judgment, we better err on the side of the more possible,
of what more regularly or customarily occurs. But again, these are not facts, only
presumptions. If a contrary fact is presented, the presumption is disputed.

- An Enquiry Concerning Human Understanding, Hume clarified: “In our reasonings

concerning matter of fact, there are all imaginable degrees of assurance...A wise
man, therefore, proportions his belief to the evidence.”
 - His analysis, called “Hume’s fork,” is useful in being skeptical of proffered evidence.
In court, lawyers and investigators try to establish the cause and effect of events and
how things must have happened based on evidence from a crime scene.

3. Ludwig Wittgenstein’s Game of Doubt: Logical and Epistemological Considerations in Law

- The motivation for questioning basic matters indicates a certainty more than a
doubt.
- The game of doubting itself presupposes certainty.”
- Wittgenstein also seems to say that total (or global) doubt simply “makes no sense”.
That's because there needs to be a reason to doubt. If you doubt everything, then
you can have no reason to doubt – unless the very act of doubting everything is itself
the reason to doubt!
- Doubt on something that one has no good reason to doubt, such as whether one
who has two hands indeed has two hands, is groundless doubt.

Readings: Bernardo, et.al., 162-169; Aquino, 115-160; Golding, et.al., 163-176, 315-342.

Cases:

Apiag vs. Judge Cantero, A.M. No. MTJ-95-1070, February 12, 1997
Arianza vs. Workmen’s Compensation Commission, G.R. No. L-43352, February 28, 1978

VII. POLITICAL LAW: REFORM, REVOLUTION, AND RESISTANCE

1. Niccolo Machiavelli: The Breach and Practice of Politics

2. Jeremy Bentham: The Panopticon
3. Thomas Hobbes on Sovereign Immunity
4. John Locke: The State of Nature
5. Charles de Montesquieu: Doctrine of Separation of Powers
6. Thomas More on Republicanism, the Familial State and the Rule of Law
7. Jean Jacques Rousseau: Social Contract Theory
8. John Stuart Mill on Utilitarian Regime
9. John Rawls: A Theory of Justice

1. Niccolo Machiavelli: The Breach and Practice of Politics

Machiavelli’s tips on how to rule (would lead to dictatorship and revolution):

First, if the ruler cannot be good always, he must at least pretend.

Second, there are two ways of fighting: one by law, another by force. The first is to man, the
latter is to brutes. When dealing with brutes, the former will not work. Use the second.

Third, the leader should himself shower the favors but should delegate the punishments. This is
called the “black knight” principle. A leader, to be beloved, must himself give the merits, but
should leave it to the executioner to do the chastiser’s job.

Fourth, it is good to be both loved and feared. But if the leader has to choose, better be feared
than loved, but not be hated (to the point that arouses rebellions).

Fifth, punishments should be done all at once so that seldom felt will be less remembered.
Punishments must be swift for a “shock and awe”. Cruelty, if only once in a while, will sustain
fear but not hatred.

Sixth, a ruler must be shrewd and swift to match the inconsistency of the people and the
political environment. Machiavelli portrayed men as “ungrateful, fickle, false, coward, and
covetous.” The ruler must be flexible enough to adapt to social trends.

Finally, the end justifies the means. If the ruler succeeds, the people are his. If he fails, they turn
against him. Commentators explain that Machiavelli was not really justifying evil here, only the
necessary lesser evil.

What Machiavelli did not like was Christianity’s emphasis on humility, lowliness, and
resignation, which enervated statesmen to become soft, lacking in ambition, disarmed,
and resigned from worldly manners.

In the end, one can say that Machiavelli only wanted empowered leaders who could
bring terror to the crooked, order, and rights to the people, as well as to clear the way
for a strong and virtuous Republic.

2. Jeremy Bentham: The Panopticon

3. Thomas Hobbes on Sovereign Immunity

- Society is like an organization where it will be more efficient to entrust the decision-
making and enforcement to a powerful chief executive officer. Only governments
with indivisible power could prevent the disintegration of society.

- He holds power from the people, the “commonwealth,” not for his own good, but to
maximize the interest of all.

- The injustices of a ruler are better than the injustices under the state of nature.
Better the abuses of one than the abuses of every one against every one.
 - Sovereign is absolute and that there can be no legal right as against the authority
that makes the law on which the right depends.

4. John Locke: The State of Nature

- Locke's fundamental argument is that people are equal and invested with natural
rights in a state of nature in which they live free from outside rule. In the state of
nature, natural law governs behavior, and each person has license to execute that
law against someone who wrongs them by infringing on their rights.

- Locke’s theory that man is free in the state of nature. Locke limited the authority of
the state with the doctrine of natural rights

5. Charles de Montesquieu: Doctrine of Separation of Powers

- To obtain a balance of power, Locke, like Baron de Montesquieu, proposed that the
legislative, executive, and federative powers must be separated in a “tripartite
system” (Montesquieu proposed the Judicial, rather than the Federative, as the third
branch of government) so that no government body could be all-powerful. It is
undesirable that the person who makes laws should be the same person to decide
on executing them as private interest may factor in.

6. Thomas More on Republicanism, the Familial State and the Rule of Law

- Familial State: A Treatise on the Passion, More said that because of the human
tendency to err, human beings have a special need for government. The first
government in the natural society is the family, where as free beings, we are
ordered to love and care for others. It is in the family where we learn the virtues to
be exercised in a larger civil society.
- In his Utopia, a large family is the basic unit of society.
- Latin Poems, More argued that a good ruler would be like a father to his children,
rather than a master to his subjects. This recalls the Roman standard of “pater
familias” or due care of a good father of the family.
- “Twelve Properties or Conditions of the Lover,” More outlined the devotion that
comes from public service like a person in love.
- For More, the Sovereign must consider the people as part of his own body.
- Rule of Law: In Richard III, More wrote that “unlimited power has a tendency to
weaken good minds, even in the case of gifted men.” HENCE, to correct even an
absolutist government, there must be the rule of law. Law is a criterion of justice and
the substantial shield of freedom.

7. Jean Jacques Rousseau: Social Contract Theory

 - Rousseau sought to reform society and is most famous for saying in his The Social
Contract that “man was born free but everywhere he is in chains.” By this he meant
that man is fundamentally good, but society can bind and condemn people in unjust
ways, yet society itself can make man free again.

- It is society that initially corrupts and induces man to lose his childhood innocence
and to be savage, selfish, and unhappy.

8. John Stuart Mill on Utilitarian Regime

- In Utilitarianism, Mill explained that the pleasures of a swine are not the happiness
of a man. Humans are not supposed to be like lower animals subject to sensual
indulgence, but must pursue a happiness that satisfies the intellect. Utility must be
grounded on permanent and progressive interests and virtues of man. He proposed
the application of the golden rule of Jesus of Nazareth, which would raise the overall
level of happiness.

9. John Rawls: A Theory of Justice

- In A Theory of Justice, John Rawls proposed that we should do a “reflective

equilibrium” whenever we make laws or decisions. We must imagine ourselves, he
said, under a “veil of ignorance” unaware of our place in society. It is Rawl’s version
of the blindfold of justice.

- This is the “original position.” In making choices, think that you would randomly fit
into anyone’s shoes. This way, you would make it a point that everyone would get a
fair chance. Since you could end up being anyone, you would wish a little of
something for everyone.

Readings: Bernardo, et.al., 170-192; Aquino, 161-197; Tabucanon, 176-187; Golding, 179-286.

Cases:

Tolentino vs. Comelec, G.R. No. 148334, January 21, 2004

The Province of North Cotabato vs. Philippine Peace Panel, G.R. Nos. 183591, et.al., October 14,
2008
Air Transportation Office vs. Sps. Ramos, G.R. No. 159402, February 23, 2011
David vs. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006
Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001

VIII. LABOR LAW: CAPITALISM, SOCIALISM AND COMMUNISM

1. Max Weber: The Protestant Ethic and the Spirit of Capitalism

2. Karl Marx: Critique and Prophetique
3. Marx and Friedrich Engels, The Communist Manifesto
4. Joseph Stalin and Nicolai Lenin: Socialism

1. Max Weber: The Protestant Ethic and the Spirit of Capitalism

- Weber advised instead that “God helps those who help themselves.

- Max Weber’s The Protestant Ethic and the Spirit of Capitalism argues that the
Protestant’s value for hard work, personal enrichment as a “calling,” and prosperity
as a sign of divine favor, made Protestant states richer.

2. Karl Marx: Critique and Prophetique

- Opposed adam smith’s free market

- Communist Manifesto, Marx wrote: “Your jurisprudence is but the will of your class
made into a law for all, a will whose essential character and direction are
determined by the economic conditions of your class.”
- There is no free market, we are conditioned by the economy, social, ideological, and
political forces, or the present hegemony.

3. Marx and Friedrich Engels, The Communist Manifesto

- The laborer receives a value less than what he creates. The goods he creates belong
to the employer. Overtime, the worker can no longer identify with his work. He does
not like to work because it becomes a forced activity just to survive that makes the
capitalist richer and more powerful. Work alienates him.
- Like Marx, Lenin believed that the proletariat revolution must spread to all nations,
transcending boundaries and nationalities, to finally overthrow the allied colonizers
and their capitalist economies.
- This notion opposes capitalism.

4. Joseph Stalin and Nicolai Lenin: Socialism

Readings: Bernardo, et.al., 194-203; Coquia, 164-173.

Cases:

Calalang vs. Williams, G.R. No. 47800, December 2, 1940

De Ramas vs. CAR and Ramos, G.R. No. L-19555, May 29, 1964
People vs. Lava, G.R. No. L-4974, May 16, 1969
People vs. Hernandez, G.R. No. L-6025, May 30, 1964

IX. LEGAL PHILOSOPHY SCHOOLS OF THOUGHT

1. The Teleological or Natural Law Theory
2. Legal Positivism
a. David Hume: Legal Positivism
b. Jeremy Bentham on the Principles of Morals and Legislation
c. John Austin: The Province of Jurisprudence
d. Hans Kelsen: Pure Theory of Law
e. Thomas Hobbes: Legalism or “Rule by the Law”
f. Herbert Hart: Rule of Recognition
g. Confucianism: Political Theory and Rectification of Names
3. The Interpretivist or Constructivist Theory
a.Ronald Dworkin: Interpretivist Approach and “Best Fit Theory”
4. Realist or Pragmatist Theory
a. Justice Oliver Wendell Holmes: The Path of the Law
5. Critical Legal Theory
a. Roberto Unger: Hegemony, Deconstruction and Hermeneutics of Suspicion
6. The Historical Approach
a. Freidrich Karl von Savigny: The Voltgeist
b. Sir Henry Sumner Maine: Legal History Theory
c. G.W.F. Hegel: Dialectic Idealism and the Philosophy of Law
7. The Functional or Sociological Approach
a. William James: Law as a means to satisfy needs
b. Emile Durkeim: Theory of Legal Change
c. Charles Louis Baron de Montesquieu: Adapting law to shifting conditions
d. R. Von Jhering: Law as a method of ordering society
e. Roscoe Pound: The scope and purpose of socio-logical jurisprudence
f. Max Weber: Typology of Law
g. Roberto Mangeira Unger: Cultural Context Theory
h. Eugen Ehrlich: The Living Law
i. Talcott Parsons: Law as integrativist mechanism of social control
j. John Rawls: The Sociological School
8. The Utilitarian Approach
a. Jeremy Bentham: Felicific Calculus
b. John Stuart Mill: Utilitarianism, Law and Authority
c. Henry Sidgwick: Act and Rule Utilitarianism
9. The Economic Approach
a. Richard Posner: Economic Jurisprudence and Consequentialism
10. Legal Formalism or Conceptualism
a. Jeremy Bentham: Originalism/Textualism or the Plain Meaning Approach
b. Antonin Scalia: Contemporary Originalism
11. The Policy Science School
a. Harold Lasswell and Myres Mcdougal: Legal Education and Public Policy
12. Legal Practice Theory
a. Philip Bobbit: The Six Main Modalities
--

1. The Teleological or Natural Law Theory

- The teleological school looks into the principles, purpose, and end (telos) of the law.
It goes to the question of the why of the law.

- Natural law is an example of “normative jurisprudence,” which evaluates the

purposes or norms behind the law.

- Laws are rules for man to realize his basic natural goods and when shared, become
society’s common good.

- According to natural law, nature is how people normally behave and are expected to
behave. Human nature, in particular, is rational.

2. Legal Positivism
a. David Hume: Legal Positivism

- As David Hume expounded, what the law “is” is another thing from what the law
“should be.” One may not feel the moral or practical duty to follow a defective law
but still, one has the legal duty to do so because it is the law.
- Hume argued that we cannot demonstrate on what the law should be, but on the
facts of what the law is (“social fact thesis”).

- We argue on legal, not moral, issues.

b. Jeremy Bentham on the Principles of Morals and Legislation

- Bentham called natural law “nonsense upon stilts,” and distinguished the
“expositors” of the law (those who explain the law for what it really is) from the
“censors” (those who criticize the law in relation to non-legal notions).

c. John Austin: The Province of Jurisprudence

- relationship between law and morality is only accidental and that the law is its own
criterion. Law ushers its own majesty and command without need for moral
reference.
- A developed legal system where unqualified allegiance is paid is a mark of an
independent state system.

d. Hans Kelsen: Pure Theory of Law

- wanted to separate “legal science” from “legal politics,” which evaluates law based
on what is politically correct.

e. Thomas Hobbes: Legalism or “Rule by the Law”

- who thought that laws cannot be unjust because these are promulgated by one
authorized with sovereign power.

- While positivism is “the rule of law,” its extreme utilitarian Hobbesian form —
legalism — is “rule by the law,”

- “rule by the law,” where there is no need for precedent, rules of procedure, or
processes that the lawmaker himself must abide to. His acts are, after all, the law. It
recalls the words of French monarch King Louis XIV: L’etat c’est moi (“I am the
State”).

f. Herbert Hart: Rule of Recognition

- “soft positivism” in The Concept of Law

- For Hart, law is a system of “social rules.”

- Tribal societies, being closely knit and related, started first with a “regime of primary
rules” (rules of conduct) where the sanctions for misbehaviors were made through
indeterminate means of social pressure and conformity.

- societies entered a “legal regime” that has three characteristics: first, the creation of
an authoritative list or text of rules written in a document or carved in a public
monument to be recognized as conclusive and valid (“rule of recognition”). This
disposes doubts on whether a rule exists as there is now a written reference to cite
or appeal to. Second, a reference to legislation to make and repeal rules (“rules of
change”). Third, a procedure to be followed to resolve legal disputes (“rules of
adjudication”).

- The rule of recognition, say, via a Constitution, is its own measure. It is like a
standard meter, which provides the ways for supplying legal validity. The law is valid
as long as it satisfies the criterion of being characterized as law. The law is “open-
textured,” or there is room for discretion only as the law says so.

g. Confucianism: Political Theory and Rectification of Names

- Confucius, the ingredients to prevent and arrest crimes are not stern punishments
but a sense of shame for misbehavior, cultivation of virtue, education on right and
wrong, respect for authority, and the elderly showing of good examples.
3. The Interpretivist or Constructivist Theory
a.Ronald Dworkin: Interpretivist Approach and “Best Fit Theory”

- law is more than explicitly adopted rules. It has merits or principles behind them
that can be “interpreted” or “constructed” by the courts.
- At this point, the interpretivist approach is akin to the teleological approach, but
Dworkin thought principles and rights are not something already laid down by
natural law, but something still to be “constructed” by the adjudication of judges,
faced by novel claims to “best accommodate the community’s common
convictions,” which he called the “best fit theory.” Adjudication is not “fixed” or
“objective” but develops according to contemporary standing or practice. But again,
neither is adjudication subjective or relative.

4. Realist or Pragmatist Theory

a. Justice Oliver Wendell Holmes: The Path of the Law

- In his “The Path of Law” (10 Harvard Law Review), Justice Holmes advised the study
of great philosophers and jurisprudents to understand how compelling ideas
become a controlling force in the development of laws. He lamented how some
members of the bench and the bar mechanically pedal the law and undervalue
jurisprudence, when effective legal order depends much on insightful legal
philosophy.

5. Critical Legal Theory

a. Roberto Unger: Hegemony, Deconstruction and Hermeneutics of Suspicion

- Critical Legal Theory questions the law’s assumptions, such as the assumption that
the people are free, and that the market is free. Rather, people’s choices and the
market’s behavior are already conditioned by economic, social, ideological, and
political forces, or the present “hegemony.”

- Critical legal theory is associated with subversives as it aims for a “deconstruction”

of the law and uses the “hermeneutics of suspicion” to advance marginalized causes.
Among the offshoot of the critical legal theory are “critical feminist theory,” “critical
race theory,” and “postmodernism.”

6. The Historical Approach

a. Freidrich Karl von Savigny: The Voltgeist
b. Sir Henry Sumner Maine: Legal History Theory
c. G.W.F. Hegel: Dialectic Idealism and the Philosophy of Law

- He also called the PROPHET OF REVOLUTIONARY CHANGE. The world is continuously

evolving. HISTORY is the movement integrating the THESIS (the basic situation or
 concept), ANTITHESIS (contradiction), and SYNTHESIS (the resolution of the
contradiction). The progress of law (all events and concepts), moves in this triad of
development – DIALECTIC IDEALISM or DIALECTIC OF THESIS.

Mind = manifestation of the absolute or spirit.

Subjective spirit = where cosmic reason operates through man’s soul.
Objective spirit = manifested in social institutions: like law and morality.
Absolute spirit = can be found in the arts, philosophy, and religion.

State = highest form of evolution (from bare existence to consciousness of truth and
recognized duties).

Law= rational form, invested with universality and determinacy, of the actual world of
JUSTICE, RIGHT, and ETHICS.

EXAMPLE: Applying Hegelian Terms

4-year term extendible to another 4 PH President 2 term limit patterned from US

(THESIS – starting point)

Martial Law Marcos extended term to 21 years (ANTITHESIS/CONTRADICTION)

ConCom after PP 6-year term without reelection (SYNTHESIS) = the new law that
look back to the lessons of the past

Note: A term of office longer than the thesis but shorter, and with adequate
protection installed, than the antithesis.

7. The Functional or Sociological Approach

- As opposed to positivist formalism, functional “instrumentalism” justifies creativity

in decision-making beyond the original intent of the law, if this will serve good public
policy, human rights, and social interests.

a. William James: Law as a means to satisfy needs

b. Emile Durkeim: Theory of Legal Change
c. Charles Louis Baron de Montesquieu: Adapting law to shifting conditions (law must
adapt to social conditions)
d. R. Von Jhering: Law as a method of ordering society
e. Roscoe Pound: The scope and purpose of socio-logical jurisprudence (who maintained
that a coherent society must have a pattern of culture that determines its ideology)
f. Max Weber: Typology of Law (who made a typology of law into rational
(logical/scientific) and irrational (emotional, superstitious). Weber criticized the
 institutionalization and bureaucratization of laws that have become unresponsive to
concrete situations)
g. Roberto Mangeira Unger: Cultural Context Theory (law must have a cultural context
to support it)
h. Eugen Ehrlich: The Living Law (who said that legal norm must follow actual social
norms and be a “living law.”)
i. Talcott Parsons: Law as integrativist mechanism of social control
j. John Rawls: The Sociological School

8. The Utilitarian Approach

a. Jeremy Bentham: Felicific Calculus
b. John Stuart Mill: Utilitarianism, Law and Authority
c. Henry Sidgwick: Act and Rule Utilitarianism

9. The Economic Approach

a. Richard Posner: Economic Jurisprudence and Consequentialism

- For him, the purpose of law is to increase the balance of happiness in society
through “wealth maximization.”

10. Legal Formalism or Conceptualism

a. Jeremy Bentham: Originalism/Textualism or the Plain Meaning Approach

- Formalism is also referred to as “textualism” or the “plain meaning” approach to the

law and “originalism” or the “original meaning” approach to the Constitution.

- Originalism says that judges should only “interpret,” not “construct.”

b. Antonin Scalia: Contemporary Originalism

- A contemporary advocate of originalism is U.S. Supreme Court Justice Antonin

Scalia, a Republican Conservative famous for his antics. He wrote scathing dissents
on landmark cases that declared unconstitutional state laws banning abortion, when
nothing in the U.S. Constitution speaks about abortion. Scalia cited the preamble of
the U.S. Constitution, where rights were intended to apply not only to generations
born, but to future generations as well. In the express words of the preamble: “to
ourselves and to our posterity.”

11. The Policy Science School

a. Harold Lasswell and Myres Mcdougal: Legal Education and Public Policy
12. Legal Practice Theory
a. Philip Bobbit: The Six Main Modalities

- Modalities: Particular approach to the law

 - Bobbit identified six main modalities.

First is the historical, which must be used when the intention is to decipher what
was really meant by the framers of the law.

Second is the textual, in looking for what the law simply declares or denies and how
it can be interpreted in contemporary times.

Third is structural, inferring rules from structures and mandates.

Fourth is doctrinal, applying rules generated by precedent.

Fifth is ethical or moral, appealing on the ethos or ideals of a government

(teleological).

Finally, prudential or according to exigencies and the calculus of costs and benefits.

Readings: Bernardo, et.al., 1-59; Coquia, 3-197; Golding, 13-89;Tabucanon, 117-162, 191-192.

Cases:

Sta. Maria vs. Lopez, G.R. No. L-30773, February 18, 1970
Vargas vs. Rilloraza, G.R. No. L-1612, February 26, 1948
Peralta vs. the Director of Prisons, G.R. No. L-49, November 12, 1945
Estrada vs. Escritor, A.M. P-02-1651, August 4, 2006
Miranda vs. Abaya, G.R. No. 136351, July 28, 1999
Co Kim Cham vs. Valdez, G.R. No. L-5, September 17, 1945
Regala vs. Sandiganbayan, G.R. No. 105938, September 20, 1996
Primicias vs. Fuguso, G.R. No. L-1800, January 27, 1948
Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001
Padua vs. Robles and Bay Taxi Cab, G.R. No. L-40486, August 29, 1975
Republic of the Philippines vs. Sandiganbayan, G.R. No. 104768, July 21, 2003

X. POSTMODERNISM AND THE FUTURE OF LAW

1. Feminist Philosophy
2. The “Other”: Anti-Discrimination Laws
3. Environmental Law and Ethics
4. The Philippine Legal Paradigm
1. Feminist Philosophy

Plato was titled “The Three Waves,” where he argued that if we expect women to take
their full share in society, we must teach and train them the same things as we do men.

- First-wave Feminism: Wollstonecraft argued that “subordination, inferiority, and

inequality will ruin the formation of virtuous wives and mothers. While she
acknowledged that men are physically stronger than women, she said that society
should evolve from its cavemen ethics: “It is time to effect a revolution in female
manners — time to restore to them their lost dignity — and make them, as a part of
the human species, labor by reforming themselves to reform the world.” Hence,
EDUCATION should not be denied to women.

- First-wave feminism or the “suffragettes” gained ground for political (to vote and to
be voted), domestic, and labor equality

- First-wave feminists saw women as morally superior to men and are thus needed for
a cleaner politics.

- “Maternalism” means to exalt a woman’s capacity to care and nurture, and to

advocate for child and maternal welfare, including maternal leave benefits.

2nd wave: De Beauvoir: It is at her first abortion that a woman begins to ‘know.’ For
many women the world will never be the same.”

- Betty Friedan’s The Feminine Mystique points out that women must resist
expectations of “femininity” that trap them to passive domestic roles, similar to
helpmates or caregivers.

- Second wave feminism did not make men any more responsible; it devalued
marriage and freed men from marital accountability and commitment, while adding
traditionally male responsibilities to women. It did not erase traditional
responsibilities, but made them ambiguous.

- Second-wave feminism, or “Women’s Lib,” or “pro-choice feminism”

3rd wave: emphasizes female empowerment or “girl- power feminism.” It dropped the
“man-hate,” “male v. female” rhetoric that women are victims; and in turn, celebrates
female culture, girl style, celebrity women, female sexuality, female social/cyber
networking, and unique female experiences of pregnancy and motherhood.

- Camille Paglia, who said that although women support gender equality, young
women now reject the old feminist rhetoric because of its victimization status
 (victim feminism). Rene Densfield also argued that women are not attracted to
radical feminism because the vast majority of women aspire to raise a family.

- Since we all began as babies in wombs, Kristeva suggested that we should consider
the maternal body as “the law before the Law.”

- Germaine Greer who is described as the “feminism diva.” Greer divorced her
husband three weeks after their marriage and supported sexual liberation in her The
Female Eunuch

2. The “Other”: Anti-Discrimination Laws

- Othering: How each generation produces its own “truths” of who should be
excluded and how,
- Society’s “others” are people who do not conform.
- Society considers them “abnormal.” They have no place before the accepted science
or the law.
- Foucault, like many postmodernists, was against the modernist concept.
- Classification registers people into categories, and problematizes or marginalizes
whatever it excludes.
- Othering is a means to discriminate, and totalizes certain conditions, circumstances
and acts to delineate a person as “insane,” “ill,” “criminal,” “pervert,” etc.

3. Environmental Law and Ethics

4. The Philippine Legal Paradigm

- Elements of Filipino Philosophy, Leonardo Mercado: Filipino value for duties

(“katungkulan”) while Westerners stress on rights.

- Mabini were duties-based, worded with “thou shallts” and “thou shall nots.”

- Responsibility too can be a personal call, even if there is no written contract or

external law. The debt of volition (“utang na loob”) is an example.

- By being non-dualist, Mercado explained that Filipinos find it difficult to separate

affairs of the worldly and the eternal, Church and State, body and soul, reason and
faith. These are considered part of a holistic dynamics that cannot be segregated.

- Some social theorists attribute to religious pressure why the Philippines remains to
be the only country without a divorce law, or which still mulls contraception, and
where there is hardly any move to legalize same-sex marriage. Partly, these must be
 due to Catholicism, but also because of our agricultural and rural Eastern culture,
which encourages large intact families and stable marriages.

Readings: Bernardo, et.al., 204-256; Golding, et.al., 90-104, 300-312.

Cases:

Marcos vs. Comelec, G.R. No. 119976, September 18, 1995

Oposa vs. Factoran, G.R. No. 101083, July 30, 1993
Ang Ladlad LGBT Party vs. Comelec, G.R. No. 190582, April 8, 2010
Cruz vs. Sec. of Environment & Natural Resources, G.R. No. 135385, December 6, 2000
OCA vs. Judge Floro, A.M. RTJ-99-1460, March 31, 2006
Imbong vs. Ochoa, G.R. No. 204819, April 8, 2014