Doctrine of the mean exis Habis) Virees Law and equity Chapter 25 “The Legal Philosophers St.Thomas Aquinas. Chapter 26 ‘The Legal Philosophers ‘Thoma Hobbes. Chapter 27 The Legal Philosophers John Locke, a Chapter 23 ‘The Legal Philosophers ‘Chartes de Mantesquien Chapter 20 ‘The Legal Philosophers Joan Jacques Rousseau Chapter 30 ‘The Legal Philosophers Immanuel Kant, Chapter 81 ‘The Legal Philosophers Georg Wilhelm Fricrieh Hogel (Cave study. Ter of ofc ofthe president 170 13 119 182 185 188 191 192 CHAPTER INTRODUCTION TO LEGAL PHILOSOPHY “Amidst the ros currents and shifting sands of publi life {the aw i ikea great ark upon which a man may se Ii oct and be ae” Lond Chancllo Sankey Jus ars bon et cequit 1. ItRODUCTION A LAW Law fo rue of conduct, resized by custom or by formal enactment, which a community considers as ‘Binding upon ts mentbers® The Stanford Eneseopodis of Prilnph calla law complex socal phenomenon and is'one of the most Intricate aspects of human culture {Laer in normative in that it gules human conduct. But {ts not the only rare’ of normative conduct for there {sale religion, morality, custom and convention. Law is ‘ertainly cnnected with the ether sources of normative Tehavior tut et the same ime iti datinc fom them. In fact, rdigion, morality, equity, custom and societal ‘convention ae among the sources of law, partly ete eng hu pcesennting wat at solr marae te Nes Intra Waser’ Compre Dona of the Bali Langa, Bhat Nol, el oncogene at toe Ser emmy epi ti afl ah mareoa aon roe MNO ‘The term law comes from Old English lagu (pag) meaning something laid down or fxd It in turn comes from Old Germasielagan which means put olay. “Lagal fees from the Latin lagli, where fex (pl epes) means Taw, Thus, ve have les terra, the law ofthe land; es for, the lw ofthe frum or court fr lori, the law ofthe place; Jee mercotoria, the lw ot custom of merchants (coro defines law as a ‘natral free th ‘highest reason} one implanted. in Nature, which commands ‘wnat ought tobe done and forbids the opposite Itis the ‘mind’ ani ‘eason ofthe intligent ma” whose ‘natural fuanetion’ sta ‘command right and forbid wrongdoing Aquinas writes that [hw is rule and measure of [hhuman] acts.-pertaining to reason When confronted (withthe abjeiion that law is nat something pertaining To ressom.e4u Tee another aw in my members,” Aquinas fd thet law i it all those things that are inclined fo something’ Thus, the ineination of the members {to eoneupisconce, Le. sexual desire, i called the la of the members? Others insist itis wil not ‘easoa’ that moves people to act a8 they do. That law pertains not to reason but to wll Tw)hateverploaseth the sovereign, has The force of flaw? Aquinas says that for true ‘will to be Tae ichas tobe in accord with reason. Ifthe will ofthe sovereign would have the force flaw it must be under the ‘Command of reason, otherwise the ‘sovereigns will would ‘vor of lawlessness rather than of aw. ‘The Supreme Court definslaw asa ‘rule tablished to guide our actions’ with no binding effect until it is tcied thus it has no aplieation to pat times but only to future time” In ite eneral and abstract’ gens, Law is the scence of moral laws founded onthe rational nature ‘of man’ that govern his free activity for th realization tf the indvidaal and societal ends of life? in its specific NerRODUCTION 79 LEGAL PHILOSOPHY and concrete sense it ina rie of conduct, jut, obligatory, formulated by legitimate power for common observance sand benefit DISSATISFACTION WITH THE LAW? Indeed, the prinipal means for the regulation of social alfirs is throagh law. Man's relationships and {fealings with hie fellowmen would bo chaotic without the comsdourness that Taw will be there guiding and pmtecting each person's day to day affairs, When ono Bards the jeepney, enters a restaurant, hires tbe services tra carpenter or apeaks before his colleagues, he oF she is {ding 20 with the fith in Tnws abiding hand ever ready fopratect him. Yet, oe often hears of comments nat only ‘Clical bat epnial sbout the law's treatment of ordiry people? ‘According to Weerammantey: Atgewwing lay disrespect is today nibbling st the fnundations of the law, the prime reason {tthe failure of the la to communicate with the layman. The layman sees his expectations (tjance belied in many am instance and with ‘Coch shortfall between the practical decision fan the ideal result, there follows a diminution ft respect, lowering the prestige of law and lawyers alike, “Among the accusations heaped on the practitioners flew iasome are ot truly interested in the la (rincple of trth, fairness and justice. Rather, in their Protiical qucat to win cases they regard law practice ‘ch like shal business deals which resort oinflaence Doddling or buying their way Uo victory. These are the Minguided ones, and true law would have no place for them. ee ae rea: Tartan Patipie Chmity Sept Oe, 60 04 854: 4 CAR.) Cena 7.6, osama, The aie Ce: Brie of Underdog, Capes, Ldn 18793 "Mio. Cort Appa 128 SORA 52Bocon enumerated his grievances against the laws of England, mich of which may be ebserved in our present sorety, as follows: The multipety and length ft suits is great; the ententious person ia armed and the hhonest subject wearied and oppressed the judge is more sbsolute, who, in doubil eases, bath a greater seope and Iiberty; the remedy flaw (is) often oboeure and doubtful, the ignorant lawyer shroudeth his ignorance of law." OF course, the so-called ‘great uncertainties! and ‘varity of opinions? may be regarded as ultimately ‘eneficial rather than detrimental tothe evolution of lave. As every law student and practitioner knows, law is ina ‘constant fx. Its in 9 continuous proceas of change, of selforrection, and adjustment. Hopefully in ite changing §arney st continually reflects the werites of justie, and aligns itself always with truth and fairness. ARE THE FOLLOWING SUBJECT TO THE RULE OF LAW. Inite broadest sense, lw isa way of doing things for ‘the eitzons to comply wth existing community standards, ‘Thestandard may be moral or ethical, economic, caltural, religious or one for social benefit and welfare. Based on these standards, are the fllowing situations subject to the rule ofa? Why? 1, Rensta, jealous of Donata’s physical endowments and financial schiovernents, decides to. expose Donsis's dark past ai prostitute, by way of releasing im the internet an alleged video of Renata ‘in avery compromising situation with a elient. Is Renata’ act subject to law? What aboot Denata’s past? 2, Teotima’s husband is now skin and bones due to canoer. Her husband refuses medical treatment, fg. an operation or medicines, does not like an TV injection (dextrose, in general tbe fed anything ‘Teotima is worried that her husband's family will cease her of malteating er husband by not giving INTRODUCTION 70 LEGAL PHILOSOPHY bis medical ald. Would Teotima obey her hosband for have im frebly sent tothe hospital? Whatever Shor doesin, i it awful? 8. Poquito is sildier fn the Corélleras. As it was Christmas, ceasefire was deelarod against the fenemy, As Poguito walked by the lake, be saw ‘Ambrosio, ofthe enemy camp, drowning on th lake. ‘Pocuito saw Ambrocio but walks on saying he has ‘thing tod with Ambrocio. Ambroco drowns, 4. Adonis tikes women, and loves to joke with them in f tood-natured way. In the bar he saw a friendly foul Venusa who sted and winked a him. Adonis ‘immediately puts hi arm around her wast, Venus, ‘tended, said stop that” but Adonis say ‘Oh don't ‘be pcpot, Tm Just trying wo be fiend” is Adonis violating any law? 5. Dr. Kacobobe, a respected doctor at the district hospital, came from a convention in Mexico. On ‘rsval back home, he got sick with fa, The hospital {efases to admit’ him back for work unless te ndergocs a swine fu test, which Dr. Kacobebo elses saying that he is decor and doesnot need {ogo through such tests, Ia De. Kacobabo right? D. PHILOSOPHY Philosophy means love of wisdom or the search for truth Is comes frum the Gredk tarm philosophic, which {n turn derived from philor, Love, or pili, friendship’ ‘atlection; affinity for, ‘attraction toward,” and sophos, “a. eage’ “a wise one” or sophia, ‘wisdom, ‘nowledge, “Gil "intelligence Its the search for the reality and truth of things. It secs to disover the esence, nature land foundation of things, a opposed to their appearance. ‘Philesophy endeovors ta understand fundameotal truths boat people, the world, the relatienship of people to the ‘world and of people to one another. Greek philosopher and mathematiian Pythagoras (689 BC. 500 B.C) was the first to call himself Teer A Rees Diary of Phephy, Barnes and Nble Dis 151VONACASE STUDY APPRONCH Dhilosophes, a philosopher. To him, shiz meant the ‘knowlege of the underving reasons or causes for things as they appear to us, knowing the reasons why a thing {s what it is™ This means to got to know the realty oF fescenee of a thing beyond ite common or day-to-day appearance Philosophy isthe search for meaning. Browing’s Fra Lippo Lippi insist that life has meaning, and to fin itis ‘my meat and drink It is philosophy’ task and mission to peel the multifarious layers concealing lies true aims, an for a thoughtful person this need be done ona day by ay, if not minute by minute basis, Philosophers are the ‘Mityas of the world who constantly seck to understand since they are those who ‘don't want millons, but an never to their questions” Thus, phibeophy ‘nay not ‘reap for its practitioner wealth, fae or worldly success ‘There is the promice, however, that an intimacy with philosophy which Plato cals his "dear delight” may bring ‘neo discover lif's and phenomens's deeper connections, [purposes and meanings such tht one dacs not ive merely but live rightly and richly. Eminent Filpino legal philosopher, Pr. Ranhilio ‘Aquino, writes of philasophy asa) the knowledge (scien fia) of things by their ultimate ecuses or reatons (per tultimas causae ve rations). This means philosophy deals ‘with Uhe'inal eases, the ‘ultimate eausoe or the ‘prima principi’ thats, something that deal wih fundamental beginnings, first principlos and basic elements; b) that ‘whieh provdesthe person witha’mapthat gives coherence tohisactivities and that maker offumanlifea meaningful ‘whole? «) something thet uncovers the ‘meaning’ of ‘Phenomena. By phenomena means something. ‘which Appears’ that which can be gleaned by the senses but ‘whose inner meaning and reality remain concealed. And this may be done through the aid of hermeneutice, which meaning in the present parlance is no longer limited to the interpretation of holy texts and serpttes but to the “Dane The Bates rama very structure of human understanding and existence itelf and) that endeavor which gives aogical account of the way we ue our terms, which s within the realm of ‘analytic philosophy. Socrates says af philosophy that {we} are discussing ro small matter, but how we ought to ve» And living ‘igh et exertie knawedge and veason. Like morality itself, pilocophy is ftst and last, an exercice of reason: "That ons’ eonelsions should be informed with reason rot only from one side, but all sides to the argument shouldbe carefilly weighed and considered. One's ideas ‘should tand on the test of reason and rigorous inquiry, {ease through philosophy’s exacting requirement and ‘seule standards ‘THE BABY THERESA CASE: ‘Theresa Ann Campo Pearson washornanencephalic in 1992"This means mare than 80 percent of er brain is tbsent; only the brainstem sustains her breathing and Ihearteat. Only 300 af such babies are horn alive every year and they Inst afew days. Knowing that their baby ruld nt live lng, and even if she cou, would not be tenacious, they volunteered her organs fr transplant: ‘hat her eyes, Kings, Kidneys, and heart go to other children, The dotars agreed Would ithe right to Baby Theresa’ organs thereby causing her immediate death? The following are the ‘iferen philosophical (ethical) arguments raised for or ‘against the decison of the parents. 1. INFAVOR 1A. The ‘Benefits Argument’ is based om the ttltarian philosophical seheol Basically, it posts the belief that if an idea or act gives but the ‘rentest happiness’ forthe ‘greatest ‘number of people rich is goed and moral ‘The logic inthe benefits argument ia this: Gato ‘A Palapye Lam Philipnina Sore, Vl XVI, emia reported ty Paton The Republi_LEOAL pumLosoPay FOR FUAPINOS: ‘KEASE STUDY APPRONCH Bay Theresa wil only lve «few days Due to the absence of most parts of her brain, she is neither conscious nor feel anything. Personally, she isnot harmed Af her organs are given (non-personal thar on the donor argument ‘eSince her other ongans aro stil ood, it will be more beneficial to give them to Other children who might need them more. This way, others are more than Thenefted (benef to others argument). 4. The conclusion ia, under the creums- tances it beter to donate Theresa’ organs, 1.2. The braindead’ argument. There are these ‘wto insist that baby ‘Theresa, while sill Dreathing, ix for all intents and’ purposes, brain dead. Thoy argue that: 4, Though breathing, itis but a mechanical act on the partof Theresa She does not Ihave most of her brain to begin with b. There sre meny brain-dead people ‘who continue. to "breathe" through mechanic] asitance Brain death is ‘eal death. One io pro- ‘nounced dead not when his hear: stops beating (ea cardiac arrest) but when his ‘mind stops functioning. ‘An artisle that appeared in the Journal of ‘Neuroscience Nursing favored organ donation and the familys right to make an Informed choles in ‘cas of bain dead persons. ‘The need for organ transplants has ‘increased 200% over the past doeade, while ‘the mumber of organ donors has remained rolatively constant. ‘The familys refusal to ‘consent to organ donation has been cited we one of the Kay factors in the shortage of organs. Lack of understanding about brim death and organ donation have been Hontiied as reasons for refusal to consent. Families of potential organ donors are reeoiving inadequate information to make informed choices about organ donation, and their emotional neods are not consistently Inet, Nevrescience nurses can improve con Sent rates for organ donation by effectinely ‘nddresing the needs of the potential dance.” 2. AGAINST ‘Thove against the dedsion of Therest's parents offer two arguments to thelr side: 21 “We should net use people as means” argument: 4. Human beings are ‘ends’ in themselves. Each has his own end parpose. Its not food to use a person at means to ther peoples end b. ‘Harvesting’ "Theresa's organs while lve i to tse Theresa for other people's ends, ¢Theconcluson i the taking of Theresa's frgans cannot be justified under the ‘creumstances, 2.2. ‘Killing ise! argument: ais evil toll someone, unless the one led was aa. unlawful ogressor and the one liling bas no ether way except to defend his ie. Baby Thorees is not a case of salt defence, She ie a completely helpless baby: ‘e_Bvery porton has a purpose. We de not know what Theresa's purpose is es Tanai Jounal of Nerden Nursing ebay, 3989They say Thoresa is unconscious or Uunfocling. We cannot be sure bout that. They say Theresa won't last beyond a few days. Fis, we cannot be sure about that Second, we do not determine when fone dies since we do not own OUF OF ‘another hie {.Inconclasion todonate Theresa's organs fs to Kill her. And killing « helpless Ihumnan being is none other than murder. ‘The Washington Post, commenting on the baby Theresa caso, came up with this view ‘edemning the near legalization or euthanasia Serey Killing” ‘The frontier of medical ethics is a busy place. The heaviest activity these days is near the retary marked “the killing of innocents” Lact year, Washington state camevery cose passing a referendum to legalize euthanasia. Derek Humphreys "how-toeuiide” manual topped the bestseller list. Solty is growing increasingly tolerant of the idea of cutting tf the life of people who have had enough, Generally. speaking, the moral. pioncors took to Kill the innecent (the terminally il, for example) for their own good. Last week, however, there was a further advance: An attempt was made to deliberately shorten one {innocent life not fr is own good but for thet of another.” E, USES! OF PHILOSOPHY: DEEPER UNDERSTANDING According to Kolak and Martin, philosophy ‘san axe. in its attompt to gun deeper levels of ‘understanding, it must continually question every thing we believe in. That {Where isa frozen aoa within us. Philo sophy io an axe, Everything you believe is questionshle. How deeply have you ‘questioned 1? The uncritical aceptence of Eelefs handed down by parents, teachers, politicians and religious leaders is dangerous Many af these belie sre simply false. Some ‘of them are ies designed to control you. Even ‘when what has been handed down i ruc, it Jenct your truth. To merely accept anything tilhout questioning its tobe somebody elae's ‘puppet, second-hand person. Beliefs ean be handed down. Knowledge can perhap he handed down. Wisdom can. bpever be handed down. The goa of philosophy Srwiedom. Tying ta hand down philosophy is “Unphilosophical Wisdom requires questioning Wwhet. fs questionable. Since everything is le, winder requires questioning ‘erything, That i» what philecophy is: the [tof questioning everything” wispowt Will Darant, author of the classe introductory text to philoophy "The Story of Philosophy’ posits hatte shameful question to asi philocophy is ‘useful ‘The busy reader will ask: is allthis phic losophy’ useful? Te i « shameful question: we do not sak of poetry, which s also an imag Shative construction of a world incompletely {nown. If poetry reveals to us the beauty oar Tuntaught. eyes ave missed, and philosophy {ives us the wisdom to understand and forgive, [senoush, and more than the work’ wealth Philosophy will not fation our parses, nor lif Seni Wand Round Marin, The Boerne Pip, Blan, hare Rrthner, ‘The Cae of Baby Thr’ he Washington Po =a ‘cate adowoth 20,2 ge 1098us to dizay dgnitis in a democratic state; i tay even make wa lite careless of these things For what fwe should fatten our purses, for rise to high office, and yet all the while re ‘nal igorantly nave, onasely unfurnished in the ming, bral in behavior, unstable in char ‘ctr, chaotic in deste, and Bindly miserable? woPerhaps philosophy will give us, if we are faithful to it, a healing unity of soul We are so slovenly and self-entradictary in our thinking: it may be that we shall clarify tvseves [LEGAL PHILOSOPHY (JURISPRUDENCE) Leal philosophy is a yntematic study that socks to understand the a) nature and essence of law; b) its definition and elements; e the soures ofits authority, d) {ie various applications and development; and e) its vole in sosely, ce ts relationship to ether institutions and sheietal practices such aa norms, morality and custom. Ie ‘explores on the perennially dificult question regarding ‘he relationship between law and merality, and ax to wheter the tw are linked ce separate Legal philotophy, also known a jurisprudence or the science and philosophy of fae, concerns itself with andamoatal questions like what i Iw as such, and not ‘what is the Philippine law on say, property. Rathor it Teeks to know what is laws “true” nature, it ultimate foal and purpote. This presumes that “law” has certain, ‘haracteriatis and qualities common to all the laws of the word, While layers study on which law applies toa particular ease, legal philosophers ak if what purports to brea “law” i ded tru l,i that it complies with the requirements of what lw is. Jurisprudence comes trom the word Latin juris- prudentiay meaning knowledge of the law. Jura, the genitive form of Jus, meaning ‘law’ and prudent. ‘nowledge’ Scholars and practitioners of jurisprudence seek to achieve a deeper understanding ofthe nature of ‘ve, its application through legal reasoning, and how law js used in practical ways by lng systems and institutions rnemmopcTiON TO LEGAL PAILOSOr! Jurisprudence thus delves into questions such a what is the essence of law? what problems and dificaltis exist ‘within portiular legal eyeiem ond institution, and how dos law incense with the larger seiety within which it fanetions” ‘Dr. Jorge R. Caquia defines ‘philosophy of lw asa “quest uf la that “appeals t reason’ in order to‘ebtsin jistce ™ He sa Resort to force usually signifies the failure of ‘the law to persuade people to whom its addressed. ‘What the King, emperor, or the prince orders tras the law and everyone obeyed it out of far oF punishment, Force was usually resorted for its fnforcement.One function of philosophy therefore = {oformulate law thats reasonably acceptable tothe people ta whom is addressed. Philosophy law i {hereore opposed to tyranny.” For Ingal philoophy profesor Antonio Estrada, philosophy of law involves an understanding ofthe place teat lew in human fe He asks: In what way do statutes and judicial decisions, cinstjutions and interational troaties conribute {B happinest? What mutt the legislator aim at, ‘wat must the judge bear in mind, what sovereign. Princple end clear consciousness of definite Timitation must guide tho efforts of the executive fr Chie of State? That the ultimate succes of ell these must depend upon their knowledge of their Inatecal ~ the tse of esl authority — and that uch knowledge isi drct ration to their mastery ‘the Principle of Justice, ought to become evident fis the matter unfold Fr, Ranhilio C. Aquino says that philosophy of law is not the leisurely pursuit thatthe law — and lawyers 2% do without (or even postpone) It is the “cask of Sire Co, ting in Lage Phy and Thy Tet ad Com ae P hingalexotn H hos atin, P ey Lay ests Bk See IH"RCASH MTUDY APPROACH philosophy to provide the person with a ‘map’ that gives ohorenes to hivactvities and that makes ofhuman lifes caning whole He said that: ulndertying all legislation apd rule-making is philosophy, perhaps unarticulated but nevertheless Dperative and efficacious justice is to be achieved, fot as some fined and static “idea” but asa project, hen the philosophical mats of law and decision- making hes tobe brought to the level of reflection, that f explitated “and critcise..it- becomes [therefore] the task ofthe philosophy ofiaw touneit the goal ofthe lase and its underlying motives — hot really the motives af the legislators, primarily, that of society that erates laws and sustains thera™ G. FIVE SCHOOLS OF JURISPRUDENCE Five schools of joriaprudence have variously ‘answered Uh raifcatons ofthe ceminal question “what islawas such? Thece ere natural, positivism, realism, forma declan a Now: Naturalism ‘Naturalism maintains that law snd morality are not seporate, that on unjust law is not true law and that law must refect the elernal Varies of justice and faimess ‘Natarlism or natural aw theory which wil be discussed in more detail Into i this book, believes that there are ational (eg. ethical or moral) limits to the power of Congress to enact laws. As former U.S. senator William Hr Seward one i: "Thre hghr law than he conatitation™ Positivism Positivism believes that la and morality should be soporate, and that law is valid Wiis validly posited by lawful government or authority, Positiists believe that the validity of aw, that i, the fren of law doesnot come TSS ain ure ‘Alam Henry Sard 1801-72), Spa, US. Senate, 11 March 850, cour nemopcrioN 10 GEEAL PEMLOSOPIY rom hazy metaphysical sours, Instead, lawis something ‘pebluet or made in accordance to socaly accepted rales. Pe ahorepostvists belive that laws are man-made, Laws are mot products of heavenly notions and seals but ‘Homa mare earthly agreement (convention) among those eb ei An example the decision to choose the colore WrtatieHigh, or whether the country drives leftor right Inthe US. ant the Philipines motorists drive right, ‘hile in Canada, Honglcong and Australia they drive let Fe poitiviata, there is nothing ‘moral about whether ‘vommunity dives left or left These are merely man- Inade and sodally agreed-upon rules, nothing more snd poting es. Realism ‘The realist or functional” schoo! holds that law i determined by ‘reel world practice’ and experience. In ether words law ie what the lawmakers, jodges, awyers Peutnecs people and society “Go with it” Law is not [uiet elentifi pilocophical or logical activity. Rather, fs bared on Humat-blood end sweat-experience. Law is ‘othing but by-produetof the lawmaker or the judge's | Pelideal religious, economie or peychological elit. ‘etree Eran belongs to this school. In his ‘Law and the adorn Blind he pets that nw isthe proper atudy of what eeeatr actually do and not what they say they are doing. ‘That in making a decision, the judge's mood and state of ss that day euch aa the condition of his arthritic knee, Tis religious belies, bigeos such as his great disike on ‘Rbling this Father having gone bankrupt on gambling Seroer) areas important determinants to his eelasions GE'S previous deisions ofthe Supreme Court. In other Words, Taw, poychology and personal politics are not TREE Pome soctl extn famously i humorously, ‘Sold Taw is what the judge ato for breakfast, or equity 8 Bt he length ofthe Judge’ ear. Formaliom Formalism on the other band posts that law is a strict aiece governed by formal axioms” and principles Tart ta eit x peealy neil ethWhich are used by judges, using the rules of lie in Aeciding and determining the outcome of @ case. The flee and procedures used in deciding easoe are mot to be found exterally such a8 from politics, ethic, religion, ‘perience or emotion but within the system of elaborated ‘lod themselves. The abstract princplesof law necessary fo arrive at # sound judgment, seording to this school ff thought, may be found within the wordings of the law themselves. Thus, 2 formally trained logal profession ‘would be needed. One whe dacs not have a background in the intricacies of logal reasoning eg. a non-lawyer, ‘would not be allowed to appear and argue his ease before the court onthe ground that he would not have sufficient knowledge ofthe formal rules and pracidare constituting the warp and woof ofthe systom Critical legal studies Critical legal studies belioves that law is but an ‘expression ofthe poliey goals of whoever happens tobe, ft that particular moment in history, the dominant social troup. Tha, i the raling power happens to be socialite Ins Wwould elect suchanideclogy aswell. Oncexponentof the Critial Lagal Theory is Antonio Grams (1891-1937). Gramsci argued that people consented tothe interests of the dominant elast not because they were forced or ordered to-do so, Instead, the dominant classes had organized society using the proces Cramec calls hegemony. It ie 9 Sociologia prosese ed by the dominant power eg. the ‘wealthy, to organize society using their cultural power {and influence to achieve dominance. This explains for ‘example why people in lesser developed countries who Ihave dark skin and hair, de their halr blonde or adopt to Western ways of speaking and dressing, the Western culture at this ime being the dominant eulture. Thus, Father than having the state fore its view on the people, ‘a more effective way isto have the values of the elites ‘be made apparent. through cultural power, eg. media, ‘and Uhreugh a subtle negotiation and inftuence, the lower Clases wil wnconsciously edopt the habits, ls, norms ‘and culture ofthe daminant classes. CHAPTER 2 NATURE OF LAW “Before we come to the individual laws, {et us lock ot the character and nature of tae, for foor that, though i mous be the standart fo which we refer everything we may now and then beled ata yan inst ferme, and forget the rotional principles on ‘ur lau must be based... Cicero, The Laws" |. LAWAS RULES AND PROCESS: A LAW AS RULES: A common misconception ofl Dut a set of rules and that when dispute arisosall a judge des i find the right rl and apply it mechanically, even ruthlessly. "Thisishow formalise regard law. Thisdefinition had come under severe eitciom, Some fel it isa reduetionisti, ce. Simplistic way of looking at nw aa it fails to take into ‘ccount the aality and socal context ofthe lw. In other Words it looks at law as rules ad fails to consider the Aleeper ~ human or social ~ fectors why pesple violate the las, and the impact ofthe violation on the wetim, the Taner scety as well as the offendor. Another ertcism of the law as ruled approach iat merely eaters to efficiency fd, quick dspoval of cases from the court dockets, That ite dsmissive cf the other aspects of human experience; ‘hat it dacs not factor inthe relationship ofthe litigants To De Pao, © W ees Hava Unni Pres 181,‘That it ony gives a superficial treatment of the problems and does not ask the larger causalites why legal isues thad arisen inthe first place ‘As William 0. Douglas (1898-1980) wrote: the law is nota series of calculating machines where definitions and answers come tumbling out when the right levers fre pushed." Justice Douglas, himself « redplent of ies miseries and deprvations who as a student warkod on ‘dd job as oraitr,janitr, and chery picker, was quoted to have said: ‘I worked among the very, very poor, the migrant laburers, the Chicanos’ and the LWAW=" who 1 Exwbeing shot a by Ue poliet. saw crucltyand hardness, find my impulse was to bea force in other developments inthe law” Indeed, while the constitution mandates ‘oqual protection of the laws’ this did not prevent 18th century French siist Anatole France fom observing thet: The law in its majectic equality forbids the rich aswell asthe poor to sleep under bridges, to eg inthe streets, and to al bread 1B. LAW AS PROCESS Law may also be rogarded as a procss, the rales boing, merely an aspect of the process. Laws are not just, statutosper s but the whole gamit ofthe life experiences ‘oflawmakers, law enforers, law breakers oF followers as ‘well as lawyers, judges and egal theorists, legal scholar ad that ‘Law is voy like an ieherg; only one-tenth of fits substance appears alove the social surface In the explicit form of docaments, institutions, and professions, while the nine-tonthe af ite substance ee pre eatin eR See ame ie cn eres oa He aay te ease t ‘Roni Pree uote MB Kata pre mrrens | » that supports its visible fagment leads a sub- faquatie existence, living in the habits, atitudes, fttions and aspirations of men A up ae may earache to ny choral, pycoloies emer or Stl nsteaton nay ovoled sch tefl communi, worpioc, eel or ryan. Deepteated Filpinevelos ot Rv tong na los potiipaghapu* oktwap peskoamapagplangdelicedea” and Fre’ help define and gre mening to Flpings Sehaviorn elation thi dealing ith hea IL. COMMON CHARACTERISTICS OF LAW AL OBEDIENCE ‘Theelementof obedience sacommon characteristic types flaw. The degree or freedom to which For inetance, scientific oF “natura” lawsinvolve all things ‘while human lawe are for man alone. The former cannot be violated, hence, the clement of freedom or morality is out of the quection. They are invilable, The law of gravity for example. By entras, the laws of man involve human conduct which may or may not be obeyed: They fare potentially vielale snd their obedience is anchored TretaTorinn, Sak Oni and he Lin of Law, Print Usiversty Pr, 156h 9 ‘hy same rn tat wee wih el pt i ‘amy ai imagen patton earls ttn mp Pipi to rece Cay bck") tie agri ey ae erly ot” makes he Pine rch ott is llewmen to ve ratios erty oer sh epson Lely, iin tenner en ae eventos” "Mannie apr nthe eo hat he pice sald behave poet and watt abies Sip ye meng at wold eae Fy oahaano tm fr “virus psn” whch ee sel nceqna ofome tatoos een mera eeeon manie freedom and free wil, Kant calls this law in the sphere of freedom, GENERALITY ‘The principle of generality sees laws as ‘generlly” rather than ‘particularly’ framed. The rules mandating ars to sicp at a red light or prohibiting speed beyond 2 limit applies to all and without exception. The law ‘would not foeus on particular drivers, driving particular fare under partiular circumstances, The law applies ieregardlogs of the tatus ofthe driver young: ad, famouse unknown, powerfuljobless o the type of car used: topo the-line or rekoty. Under this principle, the lave i the law regardless of particular attendant circumstances. Also, from Une point of view of generality, decisions on 1 Joga question are made in advance ofthe circumstances ‘of the application. This means one knows ‘in advance’ that he would have velated the law if he wil erose at @ 170d light or exceed the maximum speed limits, Or, one is presumed to now in advance a statutory rape happens if ‘0x is committed with agi, say, below 12 ‘The principle of generality is sometimes contrasted with that of particularity. In the later, the pli ofcer for example chooses t2 apply the law depending on particular eieumetanees, Fer example, fining the poor and unknown but exempting the rich and perl trafic (CASE STUDY: [rederick Schauer distinguished the particu. Uariste from the generalatic decision maker" If police offer stops a driver for unsafe driving, the partiealaristie police officer ‘making ‘2 pardicularste devsion whether to summon the diver to appoar in court would take into acount the condition of the road, the amount of traf, the weather, the time of day, the type and condition of, ‘he ear, the experience and previous driving record ‘ ofthe diver, the explanation offered by the drive, and perhaps even the ability ofthe driver to pay the fino.’ its extreme, particularism is about taking cevwrhing ito acount By contrast, a mare general decision-making style would no focus so clotely on particular Ahivere driving particular cars under particu ‘dreumatances, but would rather have made Aecison in advance about an entre category — all Arivers driving all ears under all conditions on ‘moderately large streteh of highway. Whatever rel Aiferences might exit among actual drivers, acta! ‘ars, sctual exnditons, and actual locations woul be suppresied in the servic of making decisions based omlarge categories rather than on exceedingly ‘erro and situation specifi fats" PROMULGATION In Aquinas Treatise on Lave, 2 question was asked ‘whether promulgation is essential to law. He sai itis ‘essential, and refuted the three objections whieh argued ‘that promlgstion isnot essential to law. The objections ralve three prints: a) natural lew which hes the charactor ‘flaw neads no promulgation; b) law's fore affects not ‘nly those to whom the law is directly promulgated but alo these who wore not parties to its promolyation, eg. foreigners in the Philippines aro subject to Philippine penal laws even though they were not present when the Same were promulgated; and )theforeofthe law extends to the fature and binds those unborn at the time the law ras promulgated. Aquinas rpliod that: a) “natural aw is Promulgated” He reasoned that ts ‘promulgation’ ean bo [leaned from the fact that God instilled natural law “into the man's mind” sp that this natural law can be “known, by him naturally” b) those who are net present during the l/s promulgation ae bound to observe the law that they an be notified by others ofthe law after it was “Warsi Behan, The nr of the La, 207 Went Vga Law Re, 27, 204_Le0n,PRosoPHy FOR FHADNOS "AASH STUDY APPROACH promlgnted; and) th “durability of written characters? fngures that laws may be “eontinually promulgated” ven to the future. Aguinas then quotes Isdare (Eiym. ‘3: Hi:10) that “ee aw) is derived from Legere (to read) because tie writen." D. THERULEOF LAW The “rule of law” is an established legal principle whieh posits that whenever alogal issue presents itself, it must be decided by applying the accepted principles ‘law. In so doing, the wil and personal “discretion” of ‘the judge is set aside, and he is mast apply the known principles law according tothe wil ofthe legislator. According to the roport of UN Secrotary-Goneral ‘Kofi Annan to tho UN Security Council, rule of law” is 0 “principle of governance” in which all persin, institutions ‘and entities, publi or private incloding the State itself, fre “sccountable to laws that are: publiely promulgated ually enforced independently adjudicated, and consistent with international human rights orm and Standards Rule of law also requires adherence to the following legal principles: 4. supremacy of law, th rule of law is higher ‘than any person's discrtion or will 2. accountability to the law, ie. one is Liable to be ealled on or to render an account before the law 8. fairness in th application of the law: 4, separation of powers; 5, participation in decision making: Tis, Suma Mel, Tati on La, out Artie, Ded Maura Sear Cama 2000 The Role of Law ard onal itis n Cette Poche Sten Raper ft Sear Gnea = ‘aNetens, New Poe legal certainty; avoidance of arbitrariness; and procedural and legal transparency.” ‘CASE STUDY: Comparison betieen poor and excellent legal systems ‘This is @ hypothetical caso study of two 8 tems. Note thatthe comparison doesnot ony refer {oa country but to eny organization goremed by rales suchas club, assbeation, schoo, oF business crganization Poor Becellent 1, Rules aronot clear, [1 Rules are dear. The rare ambiguous.” | rules are simply and ‘This means cases | clearly written such ane decided ad hoc, | aa there could be orem acasetocase | no doubt what they basa mean. 2. Theruksare not |2. Theres are made rmadeavailableto | known to those thee aected by affected by them them. ‘The lawmakers and administrators made sure every person affected ‘understood the rales. 3. Retroactive laws are | 3. No retroactive lew, ‘used nan abusive | unless for the ben nse to suit the eit ofthe accused penonal whims of | arthove already tells, convicted.Rules cannot be [4 Rules ean be under understood — as ood, tavwhen it bogins, who are orate nt fected, what acts fare covered and the like. [& Rules contradict one| 5. Rules are consistent another snd support one nother © Rules require acts [6 Rulos only require which are dificult |" those affected what frbeyond normal | they can normally ‘compliance, achieve Rules arechanged [7 Rules gonerally sooften — itis remain constant ‘ial wo fllow which one ie the Tate. % Thereisagap [8 The rulesare oni- between the rae formly observed Gaw)assuch and | by the lawmakers, the implementing | department heads, regulations (admin- | regional directors, istration). Toel officials and the police Appellate wteps 9. Appellate steps and unclear. other grievance ‘mechanism is leary spelled out. 30. Penaliyie draconian |10. The penalty — i fand unreasonable,” | commensurate with the offense, cuarree eo ‘ectorseg. agencies andorganizations, atthe international Tevel Its purpose is for nation-states to maintain ‘peaceful and productive relationships among each other International law relies on agreement or consensus from ‘among ite member sates. At prosent, there is neither & ‘world constitution’ nor world legislature’ from which & Binding world law eld be enacted.” If law is a male of eonduet which a community considers as ‘binding upon its members then some {tue that international law i not true law. Thy cite the following reasons: 1. There is no binding law that applies to all 2. There is no “world congress for mankind." 8, There is no “world executive" to enforeeinter- ‘tional Taw incase of velation™ Tegislating laws Tie the Sa th nero Car of ato 13) erst hata now nly cop at wore eration a reroll cnet treatin ery ep ye ts eect enon a rr retin eet B moemten sfc yen ations nd ‘Joker chins ofthe mot hah tlie aioe of heaton Gro rng a tshiary mans eda of (i loot "hie rl 6) went ering rfrne in ca of sn, ne etal err eae yo eet tek pty inte ters ‘Sainal ow Others masa tat meantime and itm! ae (St itr nego oer esr sel mew eto speed ‘Uta eines, ad ests ae paca Pear wna See full die od rice wring wate nthe feldere de "hSarfe tary se, Minn car woe aeeral pene crt tc a rary may ware. E, 1S INTERNATIONAL LAW TRUE LAW? International law is that branch of law that governs ‘relationships between countries and ether multinational sr ccd Nts des mt pote Ae he aeaates ntertion cra Univeral Deon sesamiae meni cunt ‘Gene Sintonvnsone ante tu tnd he gain etn Tu ote. ‘ia gtr uch of neaionl tries cary ote to og an uty national sie tae ON Chater se tat he curt Couns UN may mo tiie ee nel inna hrate a peue Breach of Peae abate of4. law ienottrue law ithe partes are fre to Aisrogad it and if it cannot be enforced, Article (7), otherwise known as the non- imterference elause of the UN. Charter, gives each member sate of the United Nations ‘the right not to be intervened in its domestic ‘affairs. This ie otherwiee called. the “nom intervention” or “nowinteference” clauee of the UN, Charter ‘The proponents who argue that international Jaw is true law argue that 1. Applicability to all countries is not a require tment fora rule tobe considered as law. 2 A world congress and executive are not ‘sential components in the definition of aw. 8 Intornationalenstomary norms and treaties do have binding effect, A eountry that flagrantly violates ite international obligations risk Fetaliaioy action from the community of ‘ations around the world Basie ofenforement: Obedionce of international law by member states is ‘based onthe principle of reciprocity This means nation ‘obeys because it want other nation todo the same, and it want to be seen at a law-abiding’ country by other nations. In practice, however, no sovereign stato ean be forced to obey internatcnal law without its consent or willingness to do wo This is so because there is no International executive, or word pulice free to execute {international decisions, even those ofthe Internaicnal Court of Justice, an agency ofthe United Nations. ‘An exception is found in Chaptar VI of the United Nation Charter which grants the Security Council "Adida B ote UN Charter sae: Rething contin’ in the present (Chara ster the United Nant strene eaters sh se ‘iy hint danse aie of ey seat salle the Mester ‘sul hetero etenent nor be se Charter there all ‘Se prs te pls serene ender ape > ATURE OP LAW coercive power with respect to threats to the ponce, beaches of peace and acts of aggression.» Enforcement may bo done through diplomatic, economic or military actions to enforee international decisions. Chapter VI of the United Nations Charter alse eutinee the means ‘used for peaceful selilement of disputes. These include the use ef good ofces, mediation ara fact-finding (CASE STUDY: Adolf Bichmann case (On May 11, 1960, Ieraei agents kidnapped ‘Argentina citizen Adolf Eichmann” from Argentine territory. Israel's act was unilateral, and fled to ‘comply with international or national (Argentine) ‘due proces laws, A cle vnlation of international law, Hoparked protests frommany states. Although Israel apologized to Argentina, it insisted that ich mann must face charges for crimes aginst human ity fr his role in administrating the Dachau on fentration camp and in managing the deportation ofthe Jews to the extarmination camps. For Israel, SN Ghar, Chane Yen wih ast Treo ene Bach sepecent ceron A he ya mi ‘Saberecommendatonor dco wht sires il be hk nese wih Reto at ond kw manner are nrninl pac tn oa hr teers to even to spgeretion thr tinh ean Cun myer ‘Sige cmendins or sng pn meaner vi tira ile ‘Bier upow te prt concere oy wi mh eral mesa Shacacnany eae Such prorncel mere sali rdw rece Fad cites open ot rae conse Toca Coe chal sytem Sines reget mas ate Srsdy Cot ny tee wht arrest rring th eo re oe re SeeSeroctel os econ ted itany cal pe the Mare ‘Gaiden ccm Tes mv hos oi ‘pan feo an cal er fral wirie d ‘Slaw dcoumuntsine te ne ston of ete oboe rw Shedd ‘eBoni Cunl er hat ears pd arm Are wb SSE ays Caron satan rt srl per sa Sctm ay ino esto aa and tc operations ys, ited err ef meni th ated atsBichmannis answerable toa higher moral law in his tctive role in the Holocaust I tal ight to violate International and Argentine national laws in order to anrwer toa higher law? Ie iall right to take any Jaw fr Ghat matter in one's hands? ‘Should Israel have refrained from kidnapping ‘Eichmann, or followed Argentine and Intemational legal processes? LAW WITHIN RELIGIOUS DOGMA AND TRADITION A. CODEOF HAMMURABI Hammurabi, King of Babylon ¢. 1792 B.C. who ‘united his country and tok it to the height of ts power, Claimed to have received code of laws directly from Sharnas, the ehief ofthe gods. The Code of Hammurabi ‘was dissovered by French archeologists fm 1901. Its now pert of the Lousre Musou collection in Pars, The Cade Contsins 282 sections and is considered a landmark in the early edification of laws. Te covers diverse areas of law as trade, family, employment, criminal justice (some ‘punishments of which are severe), judicial procedure and ‘anticipates more moder legal concepts suchas frustration of contractx ‘The Code was based on the principle that Justice dispensed with by judges and rulers should not ‘be whimsical, arbitrary oF persoual. Rather, notions of jstee should abide within defined and well formulated rules fellowing adherence to truth, equitable principles fand retribution. Sec. 48 for instanes foreshadows the tsneept of tartultous event, one ofthe basic principles in contrac. La. ‘Examples of some lawe in the Code of Hammurabi: 1, Ira man has borne false witness in teal or thas not estsblshed the statement that he has ‘made, i that ease be a capital tial, that man ‘hall be put to death, (Se. 3) 2, Ifa man has incured a debt and «storm has ‘ooded his field or carried asray the crop, oF the carn has not grown beeause of drought, ‘hat yoarhe shall not pay his creditor Further, the shall post-date his bond and shall not pay intone for that year (See 48) 8. Ifa man bas been taken captive, and there ‘was maintenance in his house, but his wife has Ten hor house and entered into azother man’s hher body, and has entered into the house of ‘another, that woman shall be prosecuted and ‘hall be drowned. (See. 183) 4. Ifa man\as been taken captive, but there ws ft maintenance in his house and his wife has ‘cntered int the house of another, that woman hes no lame, (See. 134) 5. Ifa son a struck his father, his hands shall becutaff 6 Ia builder has built « house for a man, and Jhas not made his work sound, and the house Ihe built hae fallen, and eauced the dest of its ‘owner, that builder shall be put to death» 1B. JOHN CALVIN John Calvin's rigorous thooeracy or government by prose 1540 i 8 more contemporary example of ‘complete subordination of man and his laws to what it perceived by the group as the will of Ged, fn this view nan was under the sovereignty of God. The citizens of the state were called upon in groups of ten to swear to fs confession of faith inthe form of 21 artes of belief ‘drawn upby no other than Calvin himsalf. In this system Taw wat understood as ‘divine will’ as understood by Calvin himself, or by the legislator. The constittion land laws of Geneva were recodifed inthe light of thia boli Punishment for non-aeceptance of basic doctrines ‘was death et the stake, Por hi opposition to this type of ‘theocratic law, Spanish theologian Michael Servetus was burned at ake SEW de oh, atin end Aunrian Lave Cnr end Ltrs ‘abeary ef ant Lape Chats Sar Be New Tr, 14c. INQUISITION ‘The Inquisition is another extmple of the subor- dination of slate law ‘under religious ‘dogma, The Tnquisitien tribunal was established by the church jn 1285 to suppress heresy or dissenting views. Ia the beginning, excommunication was used to. punish apostates. Brentually, fines, flogging, imprisonment land death by burning were imposed. The sentenco as pronounced Ina religous ceremony ealled the autoda fe (Portuguese for ‘stot faith’) where a procesion, aleran mass and sermon preceded the sentencing of the heretics before they were handod to the secular authorities for Punishment The Inquisition was active in France, Italy, Spain and the Holy Roman Brpire. Later it was extended tothe Ameries,Istrials were dane in secret, and torture was usually emploed. Ocal, the Inquisition isa tribunal of the church enforeing chureh law and dogs. Subordinate to church Tar was tate law. According to Weeramantey: ‘There was no matter on which the law of the state dared to run counter to the will of God as embodied in the teachings of the ehurch. So strong ‘the theological thinking at that time that it sen argued that paganism justified conquest, {tarture and the imposition by law ns a requirement of adherence to Christianity. Spain's conquest of ‘many Central and South American peoples, brought, this question into focus, and there was no dearth of jurstie support for tho view that such persons, not boing Christians, had no rights. However, the Dominican, Francis de Vitoria (483-1548) procaimed the universal vaiity of human rights forall peples in adocument that hasbeen deseribed as ‘one of the greatest human rights documents ofall Gime’ That such a treatice should have been ‘necessary i an eloquent comment on the strong of the eppnite view." Fiery, © OED An Dotti to Law, Bate Py Lind, LAW AND RELIGION lsh ara Sir Henry Maine in Ancient Law, published Jn 1861, noted the close counecton between law and religion fnack from primitive soieties. Maine observed that is no system of recorded law which from its inception is fompletely seperate from religion From thetime algal system {born roligion has always beon ati side. Embryonic law has flvays boen entangled with religious rituals and obvervances, A. JEWISH LAW 1. Torah Much of Jewish law isan offshoot of the Ten Commandments. Later, tho Jews included the ‘Torah and considered i their writen constitution, ‘or the Book? which contains Uheir code of laws. The ‘Jewish Torah, called Pentateuch by the Christians fare the fist five books of the Old Testament. They fre ascribed to Moses, The scrolls on which tho ‘Torah i handwritten in Hebrew aro kept in an are in every synagogue, are considered sacred by the Jews. The Torah begins with the creation of the ‘Universe tothe death of Moset. Tt also Includes the ‘Jewish peoples covenant withthe one God and rules Torreligous and socal conduct, among them the Ten Coramsndments The Jews believe that by observing the guillines laid dawn in the Torah, they fall ther pert ofthe covenant with God. ‘The commentaries on the Torah were written by the Soferim or 8 group of interprets who helped to keep Jewish law adequate for succeeding fteneratons, and to the new conditions of life to Iwhich they ived. ‘The Soferim preserved to the ‘Jewish people the contra ae of the Book in Hebrew ‘orion, in epite conquest hy other mations such ‘the Gress and Romans. The intarpretersby making ‘Tesvshiaw applicable to changing conditions helped ‘defend Hebrew culture from being absorbed and ‘obliterated into other cltures According to Christopher Weeramantry onthe rule of interpretation in religious law:‘The interpreters, as in so many other systems, se to work upon sacred seripture and despite the conquest of Palestine by the Greeks, were able to Keep the book adequate to the ‘ew conditions of life by thei intarprctations, ‘This cary schol of interpreters, the Soferim, Ihlped to continue the centrality ofthe Bo’ to Jewish life and to insulate the Jews from absorption in Greek culture We have pointed out time and sgain the neod {for laxity in logal system iit isto be adequate ‘0 changing times. However, even intorpretatior may sometimes be Inadequate and a point may be ‘eathed when reform of the lor tel s necessary ‘With a sacred law this cannot be done. Jewish la ‘adopted what might be desribed as an intermediate course. Ieproduced the Mishnah= 2 Mishnah ‘The Mishna or Mishnak is a collection of commentaries on writtan Jewish Taw consisting | f dicanions among the Rabbi handed dove | ‘rally fom AD. 70 to until about AD. 200, Whi the Mishna comments on the Torah, the Gemare ‘omaments on the Mishns. | "The Mishna and the Gemara (technically the ‘main body ofrabbinieal debate onthe interpretations ft the Mishna) form the Talmud, The Talmud can be divided into Uhe halakha which are logal and ritual matters and the haggedah which are ethical ‘theological and folklorist matters. | 8 Responsa ‘The Responsa or replies is a new genre of Jevwish jurist writing afer the Telmud. The Bee oma are juridical guidance or opinions given by Tr nh ie niece mil ade therabbison day today details of Jewish life. These swore compiled by Jews fom al over the world and ‘ow frm several thousands of volumes. HUMAN RIGHTS IN JEWISH LAW David F. Polish in ‘Haman Rights and Jewish ‘Thought argued that human concerns have always boon ‘entra nthe Josh tration: ‘The recognition ofthe importance ofhumen ie tthe same time both imtgral to the Jewish faith system and the first and necessary precondition faboliefia human rights. The notion of human rights flows as natural extension of the Genesis account ofthe creation of humanity.” “The Genesis story airs both the soversignty of God and the sacrodnessof the individual, for iti single person that is made inthe image of God. Thus the rabbis Teach that killing a person is tantamount to diminishing the reality of God's own sel-™ lish notes that the three major festivals ofthe year — Pesach (Passover) Sucot (Tabernacles) land Shavaot (Pentecost — commemorate aspects of the Exodus from Faye, which is the basis for Jewish fafizmation ofthe human right to political liberty. Purim, the eammemoration of the events of the Book of Este, ‘early ffrma the rights of the minority pooples, as does TFT D162 fae ond Han Reh i um igh eis ‘raion, New Yn: PP Pres 40, “Set quid in rer, CIO) Fh Human Right: Supt in Reo geen fre Oba Se Henan ei Gn res ‘Passer, eld Posh in Joan, a eyeing ferticmmeno, rang th ns orm Bp ante poing wey Ano ‘lab eons hae sl atin ters on were Te eaters Suea Hater ine eh stale a foe 122 Tsk Goyer Osuber the et oth fe deviah ya) ‘sez te ling tarantino ema Als ‘ebelen at ano bh with el obese. “Rated af Stl ee th ayer the Pacer insertion foe gag ofthe Ten Comanments Mesos‘the Torah ints demand tha the rights ofthe stranger be protected Noreover, on the afternoon o every Ye Kippur (Day of Atonement)" _ Jews read a recounting of those who diod Yor the sanctification of God's Name’ to live ile of fidelity to Torah, even when that was proscribed Iprohibited) by tho Roman occupiers. Martyrdom for acting on higher vals as been considered sitive virtue through our history." ISLAMIC LAW Ilamie law or tho Shasta ie blioved by Muslims to he of divine origin, and is one of the worlds great legal systems. Much’ of the Shara is derived ftom the Koran (iterally, ‘he reading” o ‘the recitation ‘The Koren supplied che basic tenets and principles of Islamic Law bist not the detail Thus, it wa left to ter interpreters ofthe Koran ta build a comprehensive and detailed juristc systom. The beginnings of Koranic Interpretation began in the Umayyad pered (651.750), ‘The Umayyad (altematively spelled Omayyad) dynasty reiged as Caliph (vie and religious leaders of Ilan) ‘The Caliph rule spread as far as Cordoba, Spain in the 11th century. W. Montgomery Watt traced the growth of Islamic interpretation in"The Majesty tha was felon? ‘The central distpline of lslamie higher edu cation, once that came into being, has always been Jurispridence; and in doaling with the Umayyad riod it is thos helpful to consider frat thoce who ‘may be termed jurists, even though ther disepline ‘was till inan embryoni stage... each of the main cities there were one or more groupe fsuchmen, who ‘would meet for discussion in moaques or courtyards ‘or private houses. The aim oftheir discus bre to dover in rspect ofthe new proble were onstantly arising, which eourse of action ws {in acowrdance with Quranic principles. In each enter, the foal group sually formed a common ‘mind on mast points and go constituted what have ‘een called ‘the ancient schols of law’ Frequently there was also a minority group which disagreed swith the majority. 22 ‘A first the questions of interpretation were doubtless inciuded in the diseussion of practical ‘problens. Gradually, however, it came to be seen that ffir, the interpretation or exegesls of the Quran, was discipline on its own in which a man could specialize by devoting most of his time to it. ‘Tofsirhad many different aspects One could remember what Muhammad or ‘someone close to him had seid about the interpre- tation of particular verse. One eould compare phrases in different verses. One could quote verses of pre-Islamic poetry to justi an intorpretaion of fan dbcure word, One could consider from a gram- ‘natiea! standpoint different ways of understanding the construction ofa verse, The sores tld allusive- lyin the Quran could be filled oat from Jewish or Christian or traditional Arab sources, or somtimes, 1 would seem, from sheer imagination. One eould tay to discover on what particular occasion & pase Sage had been revesled and to what specif person or group it referred: "The Hadith which is a collection of the teachings ff Muhammad and the stories of His life is regarded bby Mualims ax their guide to living second only to the ‘Koran, The teachings were at fret transmitted orally, but ‘this led toa prliferation of Hadithe the crigin of which i ay ef tet Yor Kp iS ly yh th tenth, dye Tr tener aber tine evar a ste, eee nd caning mi edge Tn Dp Petes at lo Swi Row Yr Oh Hanh eo D Pai sere hocame in doubt. Scholars like Muhammad el-Bokhari (G10- 870) compiled those beloved to be authenti, and Siete Wat, The Matto wo lam: The amd We noo, bn Mini Now Yn, 974207895, usa by Weer re