CANDIDO, JANINA RANIELLA F.
reformulated the Golden Rule into the
REVIEWER- PHILOSOPHY OF LAW
NATURAL LAW, INTERNATIONAL LAW, AND
THE CLASSIC PHILOSOPHERS
I. The Nature of Mankind
Ancient Greek philosophers believed that all
men have a common nature that separates
them from other species, known as their
ability to reason. Humans have self-
consciousness, endowed with the ability to
reflect and analyze experience, to investigate
and to innovate, and to look for the causes,
purposes, and reasons for things.
Carl Jung- said that rationality is not the only
thing humans share in common. Humans also
have “collective unconscious” in dream state
and altered states based on quantum
entanglement and non-biological forces of
physics, which explain the similarity of cultural
archetypes and psychic phenomena.
Phases of Natural Law Theory
Natural law theory has undergone distinct
developments:
1. Classical Phase- by ancient Greek and
Roman philosophers who believed
that human reason is common among
men and along with this, the common
precepts of right law and equity.
2. Scholastic Phase- Natural law is man’s
participation with eternal law. It was
called ‘Thomism” in reference to the
philosophy of St. Thomas Aquinas.
3. Enlightenment or Modern Phase-
Used Natural law as a basis for natural
rights and duties. Immanuel Kant
“categorical imperative” of always
acting the way one would like his act
to be the universal rule, called
“deontology”
4. International Law Phase- in reference
to general principles of law and
international rights, a common law for
all nations of men. Hugo Grotius,
Francisco de Vitoria and Francisco
Suarez set the stage for reformulating
natural law as the law of all men.
Humans are by nature dynamic and evolving,
some things remain fundamental to surviving
with dignity as homo sapiens.
Humans can morally figure out the things that
can go right and wrong to human sustenance,
progress and development.
Jean Paul Sarte- dismiss presumptions of
“human nature” “human reason” and
“human morality,” but still speak of “human
conditions” “human wishes” “human desires”
“human aggregates” and “human events.”
Naturalists and postmodernists agree that
human beings share “common experiences”
from which arise common aspirations and
desires that can be basis of shared points and
common rule.
II. Wrestling for Ideal Law
Much of Westernized philosophical traditions
root back to the Greeks, but two figures
tower: (1) Aristotle, father of many sciences
and his mentor (2) philosopher-wrestle Plato.
1

PLATO
-his original name was “Aristocles” as
renamed by his wrestling coach Ariston of
Argos.
- used his mentor Socrates as a mouthpiece in
his writings, such as his earlier work on the
ideal regime, The Republic.
- He was referring to Socrates when he wrote
the Allegory of the Cave, which illustrates
people who all their life lived in their own
caves and watched only their shadows.
- traveled to Egypt, whose stable government
fascinated him.
- After he went to Sicily and befriended Dion,
son-in-law of Dionysius I, the city’s dictator. He
tried to tutor and influence Dion and Dionysius
to adopt his ideal government. But
experiment failed, the two relatives became
enemies, and eventually Dion was killed. Plato
had to revise many of his ideas into his more
mature work, The Laws.
- There are two phases in Plato’s legal
philosophy: The Republic and The Laws. Both
works however, have compelling propositions
carried into modern- day government.
 The Republic and Philosopher-Kings
The Republic envisions a Statist type of
regime ruled by benevolent dictator, an
educated philosopher-king.
Plato is often credited for the utopian form
of government, where the State plans society
according to ideals, an idea embraced by
Fascism and Communism alike.
Plato stressed a World of Ideas, with justice
in its purest form, different from the
phenomenal world. The world is only a
shadow of the perfect world. The role of the
ruler is to get the society close to perfect form.
For Plato, Natural law is not the law of the
common man, but the law of the ideal man.
Men have a common idea of what a perfect
man should be and that should be the goal of
law. The idealism of law has been associated
with Plato. Men dream of the ideal romance,
the ideal politics, the ideal version of
themselves, for if they are to base their legal
expectations on the actual state of things,
they may not improve at all, or get into higher
standards of living.
Plato approved of stratifying society into
classes. The basis would not be wealth, race
or gender, but education on justice, goodness
and virtue. The State is hierarchically
composed of the noble rules (head), the
warrior (heart) and the workers (stomach).
The best state is run by the wisest. “The noble
should rule over the ignoble” and one’s level
of education is supposed to determine one’s
social class. An enlightened leadership, not
laws, is what is necessary.
 Laws and Preambles
Government of philosophers may not always
be feasible. The Laws stresses instead the rule
of law as a substitute to rule of the
philosopher. Reasoned thought must be
embodied in laws, and laws must have a
preface so each citizen can understand the
reason behind the law. The need for
preambles and explanatory notes, as found in
proposed bills and constitutions, goes back to
Plato.
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
2
socialization, the people have been
predisposed to observe what the State
contemplates as right via rational persuasion.
One cannot expect that everyone will follow
the reason of law. Those who are resistant
will have to undergo both “instruction” and
“constraint.” Correction happens not only
through education but through coercion.
Capital punishment may be imposed to
protect State from its vicious members.
First, as a warning against injustice
Second, to free State from scoundrels
III. Aristotle on Rational Law
ARISTOTLE
-the Father of Biology
-also regarded as the Father of Natural Law,
having articulated the existence of natural
justice or natural light
-He was the student of Plato and tutor of
Alexander the Great, whose Hellenic empire
spread the Greek civilization and tested
Aristotle’s thought that because men have a
common nature, common laws could work.
-Observed that human beings have a rational
nature that must be followed as a matter of
law. Although there are “particular or
conventional laws” suited to each culture and
times, there is a “common law” “natural law”
“general justice” by which men can
objectively judge whether certain laws serve
their being human. Natural law must not be
confused by animalistic biologism because man
as a moral creature has advanced from
primitivity. The best political system is
supposed to cultivate human nature.
-In Nicomachean Ethics, Aristotle said that
happiness is the final goal or end (telos) of all
man’s pursuit.
-to live well (to excel or flourish) is to
function well. Reason makes men perceive
what is excessive, pursue a balanced life, and
to seek what is appropriate, fair, just and
right; in other words, the “golden mean” of
living. Virtue is the practice of reason. A
happy person has the disposition to virtue;
being a man of “character”, of moderation.
-the law bids men to do acts of a balanced
and temperate man.
-Aristotle in his Los Viajes article: “Virtue lies in
the middle ground”
-In Politics, Aristotle said that man, being a
social animal, needs to live in a community.
Man’s first association is the family, then the
neighborhood village then the polis or state. All
these institutions are natural since no man is
self-sufficient. Man is given the faculty of
language because he needs to socialize
effectively.
 Kinds of government
Aristotle distinguished six types of
constitutions:
First three:
1. Monarchy - one man rule; risks the
intemperance of its leader
2. Aristocracy- rule of few good men;
hound by rivalries and infighting
3. Polity- rule of men with equal merits;
is the most stable
Last three with worst forms:
4. Tyranny
5. Oligarchy
6. Radical Democracy
3
The aim of a good state is “the good life”
with the middle class as the basis of progress.
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 poor and
rich classes have the tendency to inequity.
A good government establishes a political law
that conforms to rational principles of right
and equity.
IV. The Stoics on Jus Naturale
- Stoics believed that there is a “true law”
discoverable by “right reason” and shared by
all persons.
- The contribution of the Stoics to natural law
philosophy is its emphasis on the equality of
all men, governed by the same law.
- The Stoics believed that whatever one’s
status in life, whether as wealthy and
powerful man or a slave, one can find
happiness in doing what is good.
-The term “stoic” has been identified with
“apathy” because for Stoics, suppressing
emotions and sensitivity to pleasure or pain
are needed to clear the mind of what is really
good. Things pleasurable are not necessarily
good and painful events are not necessarily
evil. Even if one is suffering, one can and must
still pursue a life of goodness.
MARCUS TULLIUS CICERO
- Even though men have different beliefs and
beset by numerous superstitions, he observed
that men experience the same troubles, joys,
desires and fears. The same things stimulate
the senses. And although they may differ in
their choice of words an in language, they
express the same sentiments. They may have
different cultures but they recognize the same
virtues.
- By “law” inheres the idea of what is just and
true. He argued that neither can a statute be
called “law” if it is irrational, destructive and
unjust.
- In The Commonwealth, he stressed that the
man who rejects natural law is denying his
rational nature, his “better self”
-incorporated Stoic natural law philosophy
into Roman Law
V. Aquinas on Natural Inclinations
 From Eternal Law to Natural Law
THOMAS AQUINAS
- According to him, the universe is governed
by Divine Reason through an eternal law.
Everything that is part of the universe
partakes of the eternal law. The eternal law
particular to humans is called “natural law.”
By the nature of man, he will know what he
ought to be and ought to do.
- Aquinas philosophy according to Joseph
Glavil is “Aristotle Sainted” Aquinas was able
to get hold of the works of Aristotle and
adopt its natural philosophy to Christian
doctrine in Summa Theologica.
- What differentiates Aquinas from Aristotle:
his argument for the necessity of divine law or
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”
-Aquinas argues that God has to reveal his true
nature through sacred inspiration and
interventions in history. Human law and
justice are not always effective or correct, so
there must be a divine law to which people
can ultimately appeal to.
4
Aquinas explained that the precepts of
natural law refer to five natural inclinations.
 Primary- to do good and avoid evil
 Secondary- that which helps sustain
our being, towards self-preservation
 Third natural- to perpetuate
ourselves; sexual instincts that are
meant for procreation
 Fourth- to live in community with
other men, in families, groups and
societies
 Fifth- to use our reason and will; to
know truth and to make our decisions
Averroes- in his treatise, Justice and Jihad,
referred to the five maqasid or higher intents
of the Islamic sharia to protect religion, life,
property, offspring and reason, which are
goals and purposes obvious to man.
Al-Ghazali- referred to these as “basic goods”
for the benefit or interest of all (“maslaha”)
 From Natural to Human Law
Natural law is a general guide with which
human law must fill in the details and the gaps
through statutes. Natural law, as a general
law of right, does not change because human
nature stays the same. What changes are the
application of natural law to particular cases,
and the observance and articulation of it, in
human law.
Change in human conditions, human errors or
corrections, customs, habits, and passions can
make the human order of thing to vary.
Human law is rightly changed as long as
conductive to the common weal.
What is legal can be dispensed with in
exceptional emergency cases for “necessity
knows no law.” There must be a clear
evidence of the benefit to be derived, or there
is extreme urgency, before departing from a
law that has long been considered right and
just and has been part of custom. Without the
sense of necessity or urgency, the binding
power of the law can be diminished by the
prevailing custom. Human law can also be a
manifestation of a new custom. Custom is a
source of law.
Aquinas said, “custom has the force of law,
abolishes law and is interpreter of law.
A law gives a right or the moral power to do
things. Aquinas explained that right can be
two things:
 Natural right- are those each man
must give to another man out of
equality
 Positive right- is borne by agreement,
either by private agreement among
individuals, or by public agreement, by
the ruler and the community.
VI. Enlightenment Philosophers on
Natural Rights
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.
 Positivist Theory- rights are
conventional, borne from deliberate
positive acts of rules and subjects
 Natural law Theory- right are natural
and inherent; Natural rights do not
need to be created but only need to
be “recognized” or “declared”
5
Ayn Rand- emphasis on reason and rationality
as the only absolutes in life, describes as
“objectivism”
VII. Natural Law as the Law of Nations
 Hugo Grotius
He wrote The Law on War and Peace. He made
natural law the basis for a “law of nations” It
earned him the title “Father of International
Law.” According to him, man desires to live
with his own kind, in a society that is peaceful
and organized. Because of natural sociability,
men are impelled to do good not only for
themselves but for others. Grotius observed
that even children, before their trainings
begun, already have a natural disposition to
do good to others. Need for good relations
with others is the basis of law. It is the law of
nature to abide by pacts mutually consented
and entered into in good faith, and thus,
among states, treatise must similarly be
honored on the basis that humanity has things
in common that makes citizens of all nations
equal.
 Blackstone’s Commentaries
Natural laws are eternal immutable laws of
good and evil that the Creator enabled our
reason to discern.
Mala in se- Man has natural duties and there
are those that they regard as wrong in
themselves
Mala prohibita- wrong only because they
were forbidden where other than the penalty,
violation does not bring guilt.
Declaratory theory of precedent- The judges
do not create but only declare, expound, or
lay down the existence of a custom and
expresses common shared values.
Common law- is the “accumulated wisdom of
the ages”
Judge- is a “living oracle” of the law who gives
witness to it.
The rule that natural reason has dictated to
all men is the law of nations. 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.
 Jacques Maritain
Law of nations is now known as
“international law.” For Maritain, natural
imperatives are known through
“connaturality” or 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 human
being 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.
Jus cogens- meaning “compelling law” is the
term given to international norms that are
considered peremptory and from which no
derogation is allowed under any
circumstances. Declarations of international
human rights use terms such as “essential”
“universal” “inviolable” and “inherent”,
rooted in the belief in natural rights.
6
CIVIL LAW: THE ROMAN JURISTS
I. Roman Law: All Codes Lead to
Rome
Ancient Romans turned their civil axioms into
legal maxims which “crystallize with its
laconism a thousand past experiences in
humanity’s eternal quest for what is just and
right.”
John Zane- The Story of Laws traces the legal
profession to the Roman court, made up of
“jurists” and “advocates.”
When laws began to be written in the Twelve
Tables, there was a need for juriconsults or
jurists to announce the principles of justice in
applying the law. The pronouncements would
be binding to the elected officers, the
praetors, and were adopted and added up to
by one successor to another. The collection
came to be known as the Edict, which
supplemented custom and statute. The duty
of the jurists was to advice and counsel, but
under Augustus, their function became a
public office providing response, sententiae,
or regulae as a case demands, similar to
modern-day justices establishing
jurisprudence.
Patricians (Aristocrats) - mastered the laws as
a class of advisers who drew up forms and
directed legal procedure. They were the
patrons of plebeians.
Plebeians (commoner) - “clients”
Advocate- Head of the clan who must be
influential and persuasive person like Cicero
and Pliny, the duty of which is to represent
clients in his public appearances for free.
Would deliver speeches, write treatises and
draw wills, consultations and pleadings in
court.
Latin maxims are very proverbial since the
Roman believed that what is legal must be
moral. Ius in Latin means “law.” It also means
“right.” A Latin legal principle imposes
majesty and command because it has the
elements of what law should be: crisp and
clear.
Romans made use of natural law theory to
justify the universal application of jus gentium
as the law of nations. The law of nations must
be law common to all, which is natural law (jus
naturale).
Corpus Iuris Civilis or Justinian Code (534 A.D.)
-collection of existing Roman laws made by a
group of scholars led by the legal minister
Trobonians. A legal reference throughout the
Roman Empire and eventually the Western
civilization, with many precepts adopted in
future codifications such as the Code
Napoleon of Napoleon Bonaparte.
It is composed of four books:
1. Codex Constitutionum - code of
ordinances and decrees issued by
emperors
2. Digest or Pandects- summarizes the
common law to guide judges
3. Institutes- introduction to law for law
students
4. Novellae Constitutiones Post Codicem
or Novels- supplementary new laws
passed by Emperor Justinian.
7
 II. Breaking the Code
Roman law classifies law into:
 Public law (jus publicum)- regulates
the government
 Private law (jus privatum) -
determines the rights and duties of
individuals.
Roman jurists formulated what came to be
known as “civil law” concerning contracts,
trade and commerce, infringement of rights,
property and occupancy, warranty and
mortgages, marriage and divorce.
 On the Nature of Law
Precepts of law: to live honestly, to injure no
one, and to give every man his due, which is
justice
 The Law on Persons
The unborn child, from conception, is
considered to have presumptive status
distinct from the mother. If the mother is free
at the time of conception and then becomes a
slave before the birth of the child, then the
unborn is held to be free born, an unborn
child should not to be prejudiced by the
mother’s misfortune.
Guardianship is the authority and control
over a free person. The law allows a parent to
appoint guardians in his will for children who
have not attained the age of puberty.
 The Law in Property
Kinds of ownership
Things can either be:
1. Private ownership- acquired by
various titles
2. Public ownership- for common use
3. Corporate ownership- belonging to a
society or a corporation
4. Res nullius- belonging to no one
The Ownership of Animals
Wild animals, birds, fish and all creatures in the
land, sea and sky become the property of the
captors as soon as they are caught. It is
deemed as the captor’s property as long as it
is completely under the control. Naturally wild
animals cannot be considered as one’s
property.
Right of Accession
Alluvion is a gradual and imperceptible
accumulation of soil.
Land Title
When a thing is sold and delivered, it does
not become the purchaser’s property until he
has paid the price to the vendor or satisfied
him in some other way, as by securing
someone else to accept liability for him or by
pledge.
Usufructuary
Usufruct is the right of using and taking the
fruits of another’s property. It is extinguished
along with the extinction of the property.
Usufruct also ceases by death of the
usufructuary, by loss of status, by improper
use and by non-exercise during the period
fixed by law. A person who has a usufruct on
land does not become the owner of the fruits
that grow thereon until he has himself
gathered them.
8
Servitudes
The following are rights relative to “country
estates”:
 Iter- the right of passage for passerby
 Actus- the right of driving beasts or
vehicles
 Via- the right of going, walking and
driving anything
 Aqueductus- the right of conducting
water over another man’s land.
Occupation and Possession
A thing is said to be abandoned if its owner
has thrown it away with deliberate intent.
Movable- by three years of possession
Immovable- by ten 9when located in one
province) to twenty years (when covering
different provinces) of occupancy.
Donation
Gifts are of two kinds:
(1) those made in contemplation of death
-if the donor survives the done or
should desire to revoke the gift, the
gift should be restored to the donor
(2) those not so made
 Wills and Succession
The law of testament must fulfill the following
conditions:
 The witnesses, and the necessity of
their all being present through the
execution of the will
 The signing of the document by the
testator and the witnesses
 The exact number of witnesses
 The sealing of the will by them
 The name of the heir written by either
the testator or the witnesses
 And that everything should be done
according to the tenor of this
enactment
 Obligations and Contracts
An obligation is a legal bond, with which one is
bound to perform an act. It has four kinds:
1. Contractual
2. Quasi-contractual
3. Delictal
4. Quasi-delictal
 Special Contracts
Sales
The contract of purchase and sale is complete
when the price is agreed upon, and even
before the price or any earnest is paid. Earnest
money is evidence of the completion of the
contract.
Loan, Mutuum, Deposit and Pledge
Mutuum, because what was meum or mine
becomes tuum or thine-things which we
transfer on condition that the receiver should
bring back, at a future time, not the same
things, but other things of the same kind and
quality.
Partnership and Agency
The continuance of a partnership depends on
the continuing consent of the members. It is
dissolved by notice of withdrawal from any
one of them. It is also dissolved by the death
9
of a partner, for when a man enters into a
contract of partnership; he selects as his
partner a definite person. A partnership based
on agreement of several persons is dissolved
by the death of one of them.
 Quasi- contracts
Obligations that do not originate in a contract
and do not arise from a delict are quasi-
contractual, such as when a man has managed
the business of another during the latter’s
absence.
 Delict and Quasi-Delicts
Obligations resulting from a delict itself
include theft, robbery, wrongful damage or
injury.
Quasi delictal obligation:
- when something is thrown or poured from
one’s house resulting in damages
- one who keeps something placed or hung
over a public way which could fall and injure
any one
-ship owners, inn and stable keepers would be
liable for willful damage or theft committed in
their ships, inns or stables, provided the act
done by one of their servants
 Actions and Interdicts
An action is the right of suing before a judge
for what is due. It is of two kinds:
1. Real- if the plaintiff asserts a ground of
action relating to a thing (res)
2. Personal- if the dependant is either
under a contractual or delictal
obligation to the plaintiff.
Interdicts are divided into
Abstention- forbids the doing of some act;
violent ejection of a bona fide possessor
Restitution- of property
Production- refers to orders to produce
persons or property; the production of a
person whose freedom is in question or of a
freeman whose patron wishes to demand
certain services or of children on the petition
of their parents
CRIMINAL LAW AND FAMILY LAW: THE
CHRISTIAN PHILOSOPHERS
John Paul II- his views shaped international
and national policies on social justice, the right
to life, and family code. He advocated the
abolition of death penalty in the Evangelium
Vitae. When the Canon Law was revised in
1983, he included psychological incapacity as a
ground for marital nullity.
I. Aquinas on Crime and Punishment
Aquinas justified the necessity of both civil
and penal law. Man, as a social animal needs
civil law to determine how to deal with others.
Since no man is by nature bad or evil, mere
personal training by admonition may suffice to
keep a man virtuous. Out of fear, a person can
be habituated to do what is virtuous since
penal law forces him to do or resist doing an
act until it becomes his second nature.
Aquinas distinguished general from particular
justice.
 General- refers to legal justice that
serves the community. Also referred
to as “distributive justice” as it
distributes the common good.
10
  Particular- is in relation to individuals
who are individually different.
Rendering justice does not necessarily mean
same treatment but equitable treatment on
what the other deserves by natural or
contractual/positive right; that is rendering to
each that “which is due to him according to
equality of proportion.” This justifies the
doctrine of reasonable classification under the
Equal Protection clause.
Restitution and Retribution
Restitution- is an act of commutative justice,
where equality is re-established by giving back
what is taken. Man is bound to give restitution
according to the loss he brought upon
another, with damages for what the other
could have obtained. It can be made by
repayment of the equivalent or by
compensation.
Retribution- through exemplary punishment
must restore the civil order and the common
good. A punishment must consist of
something perceived to be “evil” by the
wrongdoer by depriving him of a good, so that
potential wrongdoers will refrain from
breaking the law if only to avoid the penalty.
Conditions of Criminal Liability
Voluntariness and involuntariness of actions
must be taken into account in judging
liability. Voluntariness requires an act of
knowledge Violence and fear can cause
involuntariness of actions. By violence, one is
externally compelled contrary to one’s will.
Ignorance also causes involuntariness, but
Aquinas distinguished between:
 Antecedent- “ignorance of the
circumstance of one’s act” such as a
man who, despite precaution, shoots
and hits a passer-by
 Concomitant- when despite ignorance
of what was committed, a criminal act
would nevertheless be done had the
circumstances been right. A man who
wished to kill his foe but instead killed
a stag.
 Consequent- if it was deliberate with
respect to what one can and ought to
know.
Aquinas also maintained that a circumstance
affects liability.
II. Wojtyla’s Talks About Sex
Love and Responsibility (LR) caused a
sensation when it was first published in the
original Polish for discussing taboo topics on
sensuality, unsatisfied wives faking orgasms,
how to make a natural family planning work,
and the importance of mutual sexual climax. It
was written by a cleric. It was written when
Wojtyla, later Pope John Paul II, was a
philosophy lecturer on phenomenology and
existentialism.
Wojtyla’s information on sex came from his
kayaking and skiing retreats with some
married and single friends. He 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 that what is “natural” to
beasts is “subnatural” to humans. Man has
the power to self-determination and free will
to choose his sexual acts. A person is rational,
his sexual activity, being “choices,” are issues
of morality - of personal responsibility and
11
freedom. Man is not simply a sexual being; he
or she is a sexual person.
The Sexual Partner as a 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. A person must thus be
loved as he or she is, accepted and regarded in
his totality and not only sexually desired.
Love is the only legitimate sexual response to
a person, which ensures that the other will not
be treated only as a sexual object.
Pleasure and Love
Pleasure is natural and good, but it is not the
highest good. Love is the fullest realization of
the possibilities of man.
The Meaning of Total Self-Giving
A fully developed sexual relationship is only
possible in a durable union where total self-
giving is encouraged. The commitment of
monogamy in marriage is necessary “to signify
the maturity of the union between a man and
a woman, to testify that theirs is a love on
which a lasting union and community can be
based, a family can rightly be found.
Love is not just something in the man or in the
woman, but something that must be common
to them. Love is bilateral. It is shared and
interpersonal.
How does one measure love? Love is gauged
by responsibility. The full stage of love is
reached when the “I” becomes inseparable
from the “I” of the other.
III. Dovetailing of Church and State
Leonardo Mercado- cited four political models
of church and state relations where one can
draw the proper symbiosis between the two
entities.
They are:
1. Sacred heteronomy- spiritual concerns
are perceived as superior to the
material and therefore religion rules all
affairs of life. Happened in the
theocracy of the Old Testament,
frailocracy of the Medieval Ages and in
the Islamism of Arabic countries.
2. First Profane autonomy- gives the
government power over the sacred.
This occurs in communist countries
like China.
3. Second Profane Autonomy- is the
Western (American) ideal. There is a
demarcation between church and
state, geared towards independent
co-existence. One result of which is
that religion becomes a private affair.
4. Theandric Ontonomy- weaves
together the political and the spiritual
fabric of society; law and religion are
combined in legal concepts; Eastern
philosophy prefers this model.
Separation of Church and State
Filipino culture, like its Asian neighbors, by
practice belongs to the theandric ontonomy
model. Deep religiosity is present throughout
the Philippine history.
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Felipe Jocano- stressed the pervasive
influence of religion in the Philippines:
 Pre-Hispanic Filipinos- implements
were not used without accompanying
rites; anitos and pintados; spirits dwell
in nature; babaylan as priest and
healer
 Anti-clerical air of the Philippine
Revolution- the katipuneros did not
think of separating Church and State
but in establishing a Filipinized church.
 American occupation- The Blue
Sunday Law that made every Sunday
of the week a rest day.
Fr. Joaquin Bernas- noted that the law’s
separation clause only means two things: (1)
that the government will not establish any
religion (2) that every citizen shall enjoy
freedom of conscience.
LEX MERCATORIA: FROM CUSTOM TO LAW
Lex Mercatoria- Ancient and medieval
maritime trade; was a body of rules and
principles laid down by medieval merchants to
regulate deals. It was administered by special
commercial courts along main trade routes,
also called “fair courts.”; originated the
“writing obligatory”; was eventually encoded
into the laws of England through the Statute
of Merchants and later in France through the
Code of Commercial in 1807.
 Mansfield, the “Lord” of Commercial
Law
Lord Mansfield- taught that any satisfactory
system of commercial law must be in harmony
with the recognized mercantile customs of
other civilized nations. He said that,
“mercantile law is not the law of a particular
country but the law of all nations”
It is to be noted that mercantile law, unlike
other fields of law, is customary in nature and
develops with the state of the economy,
market conditions and commercial
technology.
REMEDIAL LAW: THE EMPIRICAL
PHILOSOPHERS
I. Bacon’s Inductive Jurisprudence
FRANCIS BACON
-is the “Father of Experimental Science” and
his “inductive method” paved way to the
Industrial Age, where science moved from
speculation to invention and discovery.
-He used inductive method to justify the use of
precedents in common-law, which he termed
as “unwritten laws”
-the “Father of Modern Jurisprudence”; he
stressed the importance of legal reports and
archiving as source of precedents
In his Novum Organum, 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. Inductively inferring middle axioms
4. Proposing the most general of notions
In making judgments, Bacon warned of the
four “idols”:
1. Idols of the tribe- referring to illusions
of appearances and reliance on out
primitive senses
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 2. Idols of the cave- generalization of our
limited caved experience
3. Idols of the market- imperfections
coming from the choice of language
and communication
4. Idols of the theater- flaws of
philosophers, theories and
speculations.
II. Exhuming the Evidence: Hume’s
Presumptions and Probabilities
Presumptions- events that are more likely,
probable, customary or regular in occurrence,
although not necessarily and always true.
DAVID HUME
-said that if the sun rises today, it does not
follow that it will tomorrow. There is no
necessity or certainty that the sun will rise
tomorrow since improbabilities can always
happen.
Probability and Improbability
Laws of reason and science are
generalizations of the mind. Anything and
everything can happen against things we
consider customary.
Hume’s analysis called, “Hume’s fork,” is 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.
Hume suggested that we can only make
impressions on whether something is more
or less probable based on repeated
experience. We should refrain from thinking in
terms of causality. Hume doubted even the
scientific principle of cause and effect. We
cannot speak of certainties or necessities only
probabilities or improbabilities.
Wittgenstein on the Game of Doubt
Ludwig Wittgenstein- tempered Hume’s
skepticism using the criterion of “common
sense” and “healthy human understanding.”
-Doubts and suspicions on common sense
matters are “motivated”. These are called
hinge propositions. The motivation for
questioning basic matters indicates a certainty
more than a doubt.
Groundless doubt- Doubt on something that
one has no good reason to doubt, such as
whether one who has two hands indeed has
two hands.
The game of doubting itself presupposes
certainty.
POLITICAL LAW: REFORM, REVOLUTION, AND
RESISTANCE THE NEO-CLASSICAL
PHILOSOPHERS
I. Machiavelli: The Breach and the
Practice of Politics
Machiavelli’s tips on how to rule, given the
non-ideal conditions of decadence and
disintegration:
1. If the ruler cannot be good always, he
must at least pretend.
2. There are two ways of fighting: one by
law, another by force.
3. The leader should himself shower the
favors but should delegate the
punishments. (called the “black night”
principle)
4. It is good to be b0th loved and feared.
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 5. Punishments should be done all at
once so that seldom felt will be less
remembered.
6. A ruler must be shrewd and swift to
match the inconsistency of the people
and the political environment.
7. The end justifies the means
II. Hobbes on Sovereign Immunity
THOMAS HOBBES
- He argued in the Leviathan that life was
originally” poor, nasty, brutish and short” in
primitive state of war of every man against
every man. Everyone was concerned only with
his self interest, just like in the wild. Might
makes right. His perspective pierces into an
ugly that holds true even today, in the way we
constantly guard against each other, even
from our own families. Humans are in
constant fear of theft, invasion, violence and
death. Eventually, men made alliances,
decided to act collectively and agreed to call
into law enforcers as people wanted to keep
themselves safe and peaceful. People
surrendered their original freedom to the rule
of their rulers.
Justifying Authoritarianism
The mutual transferring of natural right to the
Sovereign is the social contract. The sovereign
will either be an individual or a group of
individuals. Hobbes believes that the injustices
of a ruler are better than the injustices under
the state of nature.
The doctrine of state immunity from suit
stemmed from this view that the Sovereign is
absolute and that there can be no legal right
as against the authority that makes the law on
which the right depends.
III. Thomas More on Republicanism
and the Family as the Basic Unity
of Society
THOMAS MORE
- He believed that because man is corruptible,
it will be too risky to put all sovereignty into
one man’s power in perpetuity. He proposed
that the Sovereign must be elected by the
people so that the electorate can check and
terminate their ruler’s regime for abuses.
- believed in Republicanism
-Catholic patron saint of lawyers
The Familial State
In A Treatise on the Passion, More said that
because of human tendency to err, human
beings have a special need for government.
The first government in the natural society is
the family. In Utopia, large family is the basic
unit of society.
More believed in relative divorce which we call
in the Philippines as “legal separation” but
not absolute divorce that allows remarriage,
especially for the guilty party.
In 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.
The Rule of Law
“Unlimited power has a tendency to weaken
good minds, even in the case of gifted men,”
More observed that while a king is usually mild
during his first year in power, his unlimited
power eventually makes him vulnerable to
pride and dismissive of other’s good opinion.
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Although More was a staunch Catholic
statesman, he did not want a State religion.
He believed in the separation of Church and
State, but not the absence of conscience or
morality in politics. More argued that apart
from human law, there is a natural law written
in the human heart that anyone can know by
reason. One can ignore this law of conscience
only for a limited time because violating one’s
conscience will eventually cause grief.
IV. Unlocking Inalienable Rights
JOHN LOCKE
-He stressed that man has reason and
conscience, which makes him a self-
determining free individual.
Locke’s conception of natural law: “Reason,
which is that law teaches all mankind who will
consult it that being all equal and
independent, no one ought to harm another
in his life, liberty or possessions.” There are
universal natural laws not because human
beings have innate ideas or knowledge of
these since the human mind is actually a black
canvas “tabula rasa”. Rather, human beings
happen to share the same experiences that
are rationalized into universal principles.
The People’s Trust
Locke proposed that legislative, executive,
and federative powers must be separated in a
“tripartite system” so that no government
body could be all-powerful. Sovereign power
cannot be transferred to those whom the
people did not entrust the power. This
became known as the “doctrine of non-
delegation.”
V. Rousing Man to be Free
ROUSSEAU
-He conceived man to be originally good and
free in his idea of the “noble savage.” It finds
application in the doctrine of “presumption of
innocence” that puts burden on society to
prove the guilt of an accused. 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.”
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 the society that initially
corrupts and induces man to lose his
childhood innocence and to be savage, selfish
and unhappy.
The General Will
The social contract creates a new corporate
entity endowed with a “general will” as an
outcome of a democratic process. The
general will is not the will of all or the will of
the majority, but the common interest
expressed through laws. Since laws were
made with the participation of the people,
these are binding to everyone. Those who are
unaware or who resist the general will may
thus be compelled to act accordingly, and be
“forced to be free.”
VI. The “Mill” of Happiness and
Liberty
JOHN STUART MILL
- wrote in On Liberty that “the only purpose
for which power can be rightly exercised over
any member of a civilized community, against
his will, is to prevent harm to others,” known
as the “Harm Principle.” Man is free to pursue
his happiness as long as he does not harm
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 others. He may harm himself in the process law is clearly unjust. Mahatma Gandhi
but not others. followed Thoreau’s way of civil disobedience
or satyagraha by encouraging India not to pay
salt taxes to the Bristish government.
Utilitarianism

Utilitarianism is the philosophy ofpursuing

pleasure and avoiding pain, for the “greatest
happiness of the greatesr number.” Mill’s
version of it, considers the kind or quality of
pleasure and not just its quantity or intensity.
Humans are not supposed to be like lower
animanls 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.

Being Useful

Mill defined duty “as a thing which may be

exacted from a person, as one exacts a debt.”
Without this exact and clear imperative duty,
society must bear with any “constructive
injury”

Perfect obligation- is one with a correlative

right that can be demanded by others.

Imperfect obligation- has no corresponding

right but a mere beneficence or generosity
that one is not bound to practice. Once
perfect, moral, and legal obligations have
been satisfies, one must be free to pursue
one’s choice of pleasure.

VII. Civil Disobedience as a Duty

Thoreau said it is “the right to refuse

allegiance to, and to resist, the government
when its tyranny or its inefficiency are great
and undurable. He did not suggest rushing to
revolution or resignation from office for each
or any wrong, but one has to consider the
consequence of resistance and whether the

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