olQd CHAPTER Ill ~

THEORY OF LAW

,,,he Tao which others may call Natural Law or Traditional Morality or the_Firsift
. . Les oif Practical Reason or the First p atztudes, zs· no t one among a series o
1
' • • / •

Prmcip •d
possible systems of value. It is the sole source of all va1ue JU gm~n Is ·:i What purport to
h d from
be new systems ... all consist offragments from the Tao itself, ar~ztrar~ y wrenc. e .
their context in the whole and then swollen to madness in their zsolatzon, yet still owmg
to the Tao and to it alone such validity as they possess.
- C.S. Lewis, The Abolition of Man

I. LEGAL THEORIES
Legal Theory refers to a topology of discourses about the origin, purpose,
and character of the law. It evaluates and prescribes how a body of conduct
becomes norm, rules, or obtains binding effect. It should not be confused with
the "theory of a case," which refers to the principles, claims, or grounds under
which a litigant proceeds. When law students develop a legal thesis, or when
lawyers, judges, and justices write arguments or opinions, it is important to
establish from what theory one is dissecting a question of law.
In his column in the Philippine Daily Inquirer, "With Due Respect: Legal
Philosophy" (10/26/2014), former Chief Justice Artemio V. Panganiban wrote
"on the need to know the legal philosophy of Supreme Court justices." He
opined that among the qualifications for Supreme Court justices should be to
have a legal theory "so their decisions would be predictable, and jurisprudence
stable." Their perceived loyalty should not be with the interests of their
appointing presidents but with their philosophical or ideological orientation
just like in the United States. US Supreme Court justices are either conservative
Republicans who favor judicial restraint, or liberal Democrats who advocate
~udicial activism, and a few or sole moderates. Their consistent positions on
issues and approach to adjudication continue to define their legacy.
The follo~ing are major legal methodologies on the origin and nature of
laws; how they 1~terplay within the Philippine legal system; and how they can
be adopted as ph1losophical disciplines and tendencies.

ss l Philawsophia: Philosophy and Theory of Philippine Law

Going Natural - The Teleological or Natural Law Theory
Do to other.Ywhatever you would like them to do unto you. This is the essence of
all that lY taught in the law and the prophet.Y.
- Jesus of Nazareth, in Matthew 7: 12

What is the purpose of life? Does life have a meaning? We humans often
ask. We can ask the same things about the law. What is its purpose? For what
use? For what end?
The teleological school looks into the principles, purpose, and end
(telos) of the law. It goes to the question of the why of the law. The proponents
of this school believe that the law serves a higher universal order or "natural
order," which we can discover through our common human reason, needs, and
aspirations and validate by human experience.
Natural law is an example of "normative jurisprudence," which
evaluates the purposes or norms behind the law. Laws are rules for man to
realize his basic natural 6~ods and when shared, become society's common
good.
According to natural law, nature is how people normally behave and are
expected to behave. Human nature, in particular, is rational. The law is law as
long as it pursues the precepts of reason: reasonableness, justice, equality, and
fairness.
For instance, the law may be stricken down for being unreasonable or
unjust. The jurist appeals to a higher law, that is, the principles of rational or
moral law in the absence of a law or in the presence of a bad law.
The common-law tradition, based on the classic works of William
Blackstone, Lord Mansfield, Henry de Bracton, and Christopher St. Germain,
assimilated natural law. Common law is based on precedents and recognizes
that there are basic legal principles or doctrines of reason that the courts must
follow. St. Germain explained though that instead of using the words "law of
nature," the English preferred to use "reason" (standard of reasonableness) in
appealing to precepts of natural law.
The civil law tradition similarly trails the codification of natural law
principles by Justinian. The Philippine Civil Code acknowledges the existence
of natural rights. Article 19 of the Civil Code maintains that it is not enough
that an act is legal, but "every person must, in the exercise of his rights and
in the performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith."
Under Constitutional Law, courts may not question the wisdom of the
law, which is the role of the legislators, but they may nevertheless declare the

Theory of Law I 59
 . ndamental requisites of a just law, such
law unconstitutional for not mee~m~, fu
as "reasonableness" and "necessity.

Finnis on Goin~ Back to Basics

So what is natural?
£ f Law and Legal Philosophy at the Oxford
John Finnis., Pro edssor do'fi d natural law theory in legal circles. Before
umvers_1
· ·ty has revived an mo 1 e
' C h 1· . Finnis was an atheist who was fond of the analytic
co~vertmhg tofBatrtranotcd1s;~ssell David Hume and his mentor, H.L.A. Hart.
phtlosop y o e , '
. · argued that there cannot be a value-free, unprincipled discussion
Fmms . . . . .
of the law. A legal theorist will in the first place require a pr:inc1~1e, a c~terion,
or a value to adopt as basis for his assessment or for takmg mterest m law.
Laws have a purpose and a direction. They are rules for what.
Finnis developed the "central case approach" in evaluating law.
The focus (focal meaning) and center of law are those ideal cases (central
cases) where natural rights to basic human goods are served. They make the
important or significant laws. The "central case" is in the fullest sense true law.
Legal systems that deviate from the central case are "peripheral" or "borderline
cases" or "unnatural." Examples are Hitler's Germany, Stalin's Russia, and
Amin's Ug~da. They proceed from underdeveloped, primitive, corrupt, or
undemocratic legal systems. Their rules are only to some extent considered
law, relative to their distance from the ideal or central case.

"basi:g::s:a/natura to man: life, knowledge

Lawland Natural Rights,
Finnis wrote that there are seven
l th . .
sociability (friendship) t· 1 , Pay, aes et1c expenence,
(transcendence) These ~eedprasc tcda rehasonableness, and spirituality/religion
· or eep uman desire ·
with sufficient reason and experi d s are recogmzed by anyone
.
humaruty, ence, an thus cannot be 1· . fr
which is why they are " tur 1 ,, e 1mmated om
. to "
?1 . natural rights" and correlativena " a~ These 1 .
"bas. ,, ood
1c g s generate
mclmations" according to h n~ a duties." These are "natural
. uman expenence· and th
metaphysical, concepts. This is wh t . ' us are empirical not
are "self~vident" and "non-derogab~e ,~sThmeant by saying that natural rights
further proof. · ese are ascerta·Inable and require no
Beside these seven b ·
combination od asic goods are other goods
d
of these . . pr u~t, or sophistication of th b . that are either the
communii~ • ~al to mtegral human fulfillment : thas1c .goods. Satisfaction
ensure the . a~s must at least have primary' ol as Individuals and as a
survival of society d . ru es to provid h ood
for compliance L , an give the people " . e t ese g s,
these fundam .tal aws are evaluated according t P~ttcal reasonableness''
en s. o practical considerations of

60 I Philawsophia: Philosophy and Th

eo,y ofPhilippine Law
 Natu ral law has also been applied to sexual ethics and
reproductive
technology. For instance, natural law theorists argue
that certain sexual
beha viors incre ase the likelihood of contracting sexually
transmitted diseases
and HIV -AID S, such as by having multiple partners or
by engaging in "acts
of sodo my" betw een same-sex partners (defined in
some jurisdictions as
"crim es again st natu re") due to the biological sensitivity
of the oral and anal
orifices. Hum ans durin g sex also release oxytocin or the
"bonding hormone"
that sustains long -term relationships, which is why we
suffer from break-ups
and get hook ed to a partner even from one-night stand
s. Thus, it is said that
laws must natu rally supp ort monogamous, faithful, male
-female relationships.
Furthermore, since nature designed women to have fertil
e and infertile cycles,
birth control policies must accordingly respect women's
bodies by promoting
natural family plan ning and by avoiding artificial impl
ements that interfere
with the norm al reproductive system and processes.
The histo ry of natural law theory, which defines and domi
nates much of
Philippine law, com mon law, civil law, and international
law traditions, will be
exhaustively discu ssed in the next chapter.

The Law Say s So - The Positivist Theory

So let it be written. So let it be done.

-Pha raoh Rameses, in Cecile B. DeMille's The Ten Commandm
ents (1956)

In sports, athletes are being trained to take into heart the

rules of the
game. Players can be Susp e cted of skirti ng the rules but the rules themselves
are set It is irrelevant who made the rules, how, and why. · h
The game is tou~
. f h tn·
because o t e s ngent rules • The rules themselves make the cut on who will
win or lose, in or out.
. 1· .
Social 1vmg 1·tself has rules ' and we call them . . •
law. We follow the law
1 · ·
. . . d
because 1t ts the law, peno · This is what the posit1v1st schoo mamtams.
.. . "tive on what the law "posits" by the authority given to
Pos1ttv1sts are post
the State or bY socta· Uy accepted ru1es. Also known as "the command theory,"
. . . h. ghl. hts . h t t and expression of the law "dur a
positivism i ig obedience to t he tcon en
. the law) and "quo d princ ipi placu it
lex, sed lex" (the law is hard, butlt a isthe prince has
. b . the force of law). As
legis ha et vzgorem " (whatever ,,.p eases
. h.
Jose Rizal wrote m ts essay r,,e Ph l.11.Pr,n,·nes.. A Century Hence: "Law has
. ,, In his Annotations on Morga's Sucesos de las
no skin, reason has no nostnls. 1 ial Filipinos observed "a high spirit of
.. . h
Islas Filzpmas, e noted.that .pre-c o on
FT ino-Malayan commumtt .. . . 1
es. The pnncip e
strict justice that prevaile_d i~ ~:Served and it was appli
of the law was mathemattca Y ed rigorously and
impartially."
Theory of Law I 61
 t
is als o kn ow n as "c on ve nti onalism." Law i~purely a produc
es, or con~entt~~' not of 8?rnc.
Positivi sm
ag ree me nt, pro po sit ion , tre ati
of human will, confomu. ti,.
· · ·11 La ws are made out ofexplicit or 1mphc1t . ""0

naturaI Iaw or d1vme wt . some extra-legal reality like natural nghts, divine
and resolutions not due to y mention _th~se concepts purely
alt ho ug h the ag ree m~ nt ma
providence, etc ~, su bs tance, prmctple, or conten~ that
le. Th ere is no un de rly mg
as a matter of sty be pro cedurally correct to be vahd.
rm wi th. It ne ed on ly
the Jaw must confo
al Jaw the ory is no rm ati ve jur isprudence for "what the law
While natur jurisprudence" that studies
da ), po sit ivi sm is "a na Jy tic
ought to be" (/exferen (le x lat a). No ifs or buts or referents
ply for "w ha t it is"
and recognizes law sim
itself.
to judge the law other than the law icaL
sit ivi sts , all the oth er ap pro ac hes to law (natural law, sociolog
For po ich
wr on g for co nfu sin g "w ha t ought" with "what is," wh
pragmatic) are "is -ought fallacy." Until nuIJified
as the "o ver Ja p the sis " or
positivists describe sed on what it should be according
no t dis mi ss the law ba
or amended, one can im mo ral, inefficient, irrationaL
ard s - for be ing
to some non-legal stand cite
im pra cti cal . Th us, wh en law yers make a case, they can only
imprudent, or
ing the Bi ble or no n-l eg al au thorities will not hold water.
the law, and cit
co uld sin g, it wo uld be the Carpenters' "Love Me For
If only the law ent from
." As Da vid Hu me ex po un ded, what the law "is" is differ
What I Am e may
or wh at the law "sh ou ld be" (separability thesis). On
idealized law a defective law but still, one
ral or pra cti ca l du ty to fol low
not feel the mo law . Otherwise, the law will be
do so be ca us e it is the
has the legal duty to d that we
ev ery tim e on e fin ds a rea son to disagree. Hume argue
disobey ed Jaw
tra te on wh at the law sh ou ld be, but on the facts of what the
cannot demons
ue on legal, not moral, issues.
is ("social fact thesis"). We arg
not
to Hu me 's ob jec tio n tha t na tur al, rational, or moral laws can
_In r~ply t
po stu lat ed , pro po ne nts of natural law would answer tha
be sc1ent1fically low suit.
y and laws can be changed to fol
~ ne e~ can be ma pp ed cli nic all
ha ve provided studies on general hu
man
~o gy, an d an thr op olo gy
S<X:1ol~gy, bt~ be st for human conditions.
ma n na tur e" an d wh at is
asp1rat1ons or hu

his stu~~t~ :: f :;e

.
m
tin ,
y
po
Be
pu
nt h~ m, the ~~ t~er or modem utilitarianism,
lanzed. pos1ttv1sm. Bentham ca
and
lled natural laW
" n-sense upon std ts " d d. . the "expositors" of the law (those
no :ng ui: he ~
ro :: h :s~
who explain the law "censors" (those who
to
criticize the Jaw in relation non-1ega notions). a
1
rea lly •s} fro m the

.
Austin, professor of British . spni<len~e, argued that the law is the
ed tun
expression of a desire support dib le use of force or threat of
sy ste m of rul y :e cre
punishment. It is a 0
or co mm ands enforced by power.
oli cy tes , _i • rs,
For instance, the desire/p o e11minate dang erous drugs is coupled by

y and Th
62 / Philawsophia: Philosoph l!ory ofPhilippinl! law
the threat of incarceration, hence a law. The law is the sovereign's will and
command.

Law ushers its own majesty and command without need for moral
referenc~. !he relati~ns_hip between law and morality is only accidental and
the law is its own cntenon. It does not need to be moral in order to qualify as
law. ~ developed legal system where unqualified allegiance is paid is a mark
of an independent state system. As a separate science, it will be enough to cite
the law.
Other proponents of positivism include Hans Kelsen who wanted to
. '
separate "legal science" from "legal politics," which compromises law based
on what is politically correct.
A famous soft positivist is Justice Wendell Holmes, Jr. While he
acknowledges that "the law is a witness and external deposit of our moral life.
Its history is the history of the moral development of our race," Holmes also
thought that for a "right study and mastery of law," the distinction between
laws and morals "is of great importance." Laws must be given effect even if it
conflicts with our conscience or ideals, otherwise, these would suffer endless
"interference as many consciences would draw it."

Leialism
Another famous positivist is Thomas Hobbes, who thought that laws
cannot be unjust because these are promulgated by one authorized with
sovereign power. While positivism is "the rule of law," its extreme utilitarian
Hobbesian form - legalism - is "rule by the law," where there is no need
for precedent, rules of procedure, or processes that the lawmaker himself must
abide to. His acts are, after all, the law. It recalls the words of French monarch
King Louis XIV: L 'etat c 'est moi ("I am the State").
Legalism is associated with Chinese political philosophy since the time
of Han Fei Zi, the legal scholar of the first emperor of China, Qin Shi Huangdi,
who built the Great Wall and unified China during the Warring States period.
The rule-maker makes or unmakes laws as a skill, art or tactic ("shu"). The
State comes first before the individual. Duties before rights. As a system of
government absolutism vests public power in a person or group of persons,
unhampered by any other rule or traditio~, institution, ~r body. The he_ad ?f
State commands absolute respect and obedience, a god-hke status, to mamtam
order and keep "all under Heaven." Chinese dynasties were maintained for
centuries by operating on this philosophy.
.
Chmese mam· ph'losophy
1 ,
Confucianism,
.
teaches
.
regard for hierarchy
.
and the bond between the ruler and the subJect, which supports I_e~ahsm. The
co ·
mmg of Commumsm, • wi'th its strict adherence to State authonttes, was not

Theory ofLaw I 63
 . h e already used to forms of
a bitter pill to swallow for the Chinese, w o wer
legalist authoritarianism.

The Hart of the Law

Herbert Lionel Adolpbous Hart, chair of Juris~rud~nce at_ the O~tord
University, presented a positivist evolution of law, with his vers10n of soft
positivism" in The Concept ofLaw.
For Hart, the law is a system of "social rules." Tribal societies, being
closely knitted and related, started first with a "regime of primary rules"
(rules of conduct) where the sanctions for misbehaviors were made through
indetenninate means of social pressure and conformity.
This regime of unofficial rules has three defects: first, doubts arose as to
the precise scope of the rules as there was no authoritative reference, such as
through a declaration or text; second, the static traditional character of the rules
as there were no means to deliberately abrogate defunct customary rules; and
third, the absence of an official and consistent body of sanctions.
To remedy these flaws, early societies entered into a "legal regime"
that has three characteristics: first, the creation of an authoritative list or text
of rules or acceptable standards of conduct written in a document or carved
in a pub!ic ,?1on~e~t to be recognized as conclusive and valid ("rule of
~ition ). This disposes doubts on whether a rule exists as there is now
a wntten reference to cite or appeal to. Second, a reference to legislation to
make and repeal ~les ("rules of change"). Third, a procedure to be followed
to resolve legal disputes ("rules of adjudication").
The rule of recognition, say via a Constituti . .
is like a standard meter, which prcivides the wa s on, IS its_ own measure. It
The law is valid as long as it satisfies th . Y_ for sup~lymg legal validity.
law, especially Constitutional Law Th el cnt~n~n of bemg characterized as
room for discretion only as the laws. e aw ts open-textured," or there is
ays so.
~e positivist approach has been critic. .
fo~sm, and uncritical obedience to au:e~ for Its. tendency to legalism,
regunes. For example, during the Naz· . onty, which served dictatorial
:~e:~~d the ~azis would raise ~e:;::~!a;s ;;.re passed to extenninate
. en vahd official law Furth a ey were only following
necessarily fit the pos.1t. .st . ennore, there are 1
sovereign rule h •~• characterization of aws that do not
r, sue as m a command o ·11
laws between equal . contract law where stipul t. . r WI of the
Parties, not between supe . a IOns in a contract are
On one hand po "t• . nor and subordinates
wh ' si 1v1sm leaves no discretion d ·
ere regardless of o .
rule of law ur mconveniences and bel. fi an room for partiality
. . ie s, we are bound under the

64 I Philawsophia: Philosophy and Th

eory ofPhilippine law
The Spirit of the Law - The lnterpretivist or Constructivist Theory

The judge is nothing but the law speaking.

- Benjamin Whichcote, Moral and Religious Aphorisms

What the law means is what the judges of the law would read it to mean.
The interpretivist school, as conceived by Ronald Dworkin - Hart's
nemesis and successor as chair of Jurisprudence at Oxford - points that the
law is more than explicitly adopted rules. It has merits or principles that can be
"interpreted" or "constructed,' by the courts to contribute to the growth of law.
It is a rights-based, pro-active construction of the law, against the by-the-rule
reading of the law of positivism.

Dworkin provided a middle ground between natural law theory and

positivism that adheres to the existence of rights and the basic principles of
courtesy and justice. According to him, jurisprudence assumes an abstract
foundation. Judges disagree about the law because it is not enough to say what
the law says or not (as positivists claim), but there are correctible issues on
what the law should be based on some fundamental principles or values (as
natural law theorists claim). However, unlike natural law theorists, Dworkin
sustains that principles are not "beyond" or outside the law but reside in the .
legal tradition of the community sensed from precedents, policies, preambles,
sources of law, intents and prefaces.
There are two dimensions of legal interpretation: the formal and the
substantive. In the formal dimension, we simply look for logical consistency
between principles and past decisions. In the substantive dimension however,
we look for principles that ~est "explai~" or _"justi~" th~}aw, ~hich is
construed as having a moral nghts-based d1mens1on. It 1s the mtegnty of the
law" that entitles it to claim our obedience.
A law is not integral when it is not consistent _(formal) ~~ wh~n it goes
against substantial rights and principles (substantive~. Pos1ttv1~m ts wrong
since it only requires that the law be formally recogmzed or clatmed ~. l~w,
without going into the merits or ~ub~tance of the la;;."W~ do !~tually cnttc1z~
laws based on principles, for bemg 'unreasonable, unJust, 'unnecessary,
or "irrelevant."
In Taking Rights Seriously, Dworkin stated th1at sidn~e th~ judgedh~dthe
duty t d. ng to rights, he has no comp ete 1scretion to ec1 e a
o reason accor 1 d · · 1 D· · d
case. He is also limited by fundamental fi:ghts an ·pnnctp es. 1scret1on oes
.
not tantamount to 11cens e In hard cases ' Judges do create new rules but must
.
still follow principles.
. " less system',: in the absence of laws to apply, the
The law 1s a seamI principles. They cannot "·mvent .,, Even Iawyers, to
· d
Ju ge must turn to genera
Theory ofLaw I 6s
 be persuasive, mu st argue not only
from w~ t ~he rul~ say s but fr~
_ standards of rationality, effectiv prin~iplea
eness, Justice, fairness, or a d1meru
non of
morality.
At this point, the interpretivist app
roach is akin to the teleologi~al
approach but Dworkin thought
principles and rig hts are not som
already l~id down by natural law, ething
but som eth ing still to be "co nst ruc
the adjudication of judges, faced ted " by
by novel claims to "be st acc om mo
community's common conviction dat e the
s," which he called the "~ t flt
Adjudication is not "fixed" or "ob t~eory."
jec tive " as natural law the ons ts cla
develops according to contemporary im, but
standing or practice. Bu t aga in, nei
adjudication subjective or relative. the r is
Adjudication is open but lim ited
principles. by basic

"Th e particular precedents are ana

logous to intuitions; the jud ge trie
reach an accommodation between s to
these precedents and a set of pri nci
might justify them and also jus tify ple s that
further decisions bey ond the m," Dw
explained. "In the spirit of the con orkin
structive model, [the jud ge] accept
precedents as specifications for a s these
principle that he mu st construct,
sense of responsibility for consistency wit out of a
h what has gone bef ore ."
In Laws Empire, Dworkin made the
analogy of a "Chain No vel /' where
each judge, like a novelist in a team
of authors of a series, add s a new cha
the law, interpreting and reinterpreti pte r to
ng the previous chapters ma de by
writers, and developing the plot to com former
e out with the bes t story, wit hou t ma
the characters unrecognizable. The king
jud ge can be creative but mu st be
and compatible with legal tradition coh erent
and has to preserve the "integrity
story. A good jud ge similarly preser " of the
ves the integrity of the law if he foll
seriatim wh at comes before him and ows in
when he can rationalize the compos
he is entitled to make out of the law itions
.
In other words, there can be an ele
ment of "su spe nse " on wh at the nex
case will sa~ on an issue, but not nec t
essarily "surprise," since the hol din
case must sttll pass the standard of" g of a
inte gri ty" and "be st fit."
Get Real - The Reallst Theory

The Law. wherein, 03 In a magic mirror.

but the lives of all men that hav we see rejle t d
dazzle. e been! Whe~ I think o' the _e • ~t o~l
y our own
" 13 ma1estzc theme, mylive s,
eyes
- Olive Wendell Holmes, Jr., Speech to
the Suf folk Country Bar
. W~y do ev_en n~- law yer s like to
Tumng m to Suits, Criminal Min watch TV series on law am:/ Ordel?
Kung May Katwiran, Ipaglaban Mo ds The Practice D
? , amages, and the toca l

66 I Phllawaophla: Phl/o,,op hy and The

ory of Philippine Law
 Perhaps because legal issues and facts, no matter how dull written in
the court rollo, narrate the everyday drama of life people can relate to. In a
court cas_e~ you have a mystery plot, private revelations and curiosities, strange
p~rsonahties, ~ protagonist and antagonist, supporting actors, romance or
v10lenc~, surpnse~ and testimonies, twists of evidence, a walk down memory
lane, a Judgment m suspense, a sequel through appeals, These are the recipes
that make a good thriller. They portray the "trials" of life.
The Realist school, sometimes labeled as "pragmatic jurisprudence,"
focus~s ~~ these human realities that are often overlooked by hard law,
techmcahties, and abstract policies. It brings significance into the question
of implementation and whether the law reflects practical experience. It
tells the law and law practitioners to get real. For example, that taxes must
be administratively feasible and statutes enforceable. This school raises the
question of whether the law can be verified by experience.
Justice Oliver Wendell Holmes, Jr. was an avowed proponent of
judicial legal realism, thus his metaphor of law as a "magic mirror." The son
of an aristocrat, Holmes' military service during the American Civil War where
he suffered repeated serious injuries "cured him of his social illusions" about
life. After leaving the army, he decided to enter the Harvard Law School and
his father is said to have asked, "What is the use of that? A lawyer can't be a
great man." Holmes' illustrious legal career, however, proved his father wrong.
When he joined the US Supreme Court, he became "the Great Dissenter" who
penned minority opinions later adopted and cited as jurisprudence.
Having practiced commercial law, Holmes knew the effects of impractical
legal regimes against the economy and the market. He believed that the law
should not even be considered as a system of reason, of ethical principles and
axioms, of what not. Holmes was reacting to the way law was being taught
in colleges like a strict science where one can reduce conclusions and exact
answers from legal sources and rules.
Law is determined by the actual practices of courts, law officers, and law
enforcers by real world practice. Human factors and reali~es are un~voi~ble
in hard cases, and judges must be able_ to tak~ th~se mto . ~?ns1derat10~.
Decisions must be based on the judge's idea of Justice, conditioned by his
values background and acquaintance with social forces. Holmes proposed
J.udicia'l restram
· t 1·n 'striking down laws passed by elected representatives of
bl b' . .
the people. Laws should only be voided if demonstra Y ar 1trary or mattonal.
In H oImes , words , "the life of the law has not been logic, itdhas1·been
·
ex · ,, "Th .c. lt necessities of the time, the preva1ent mora1an po 1ttcal
penence. e 1e • th · d'
· mtu1ttons
theones, • •• o f publi·c policy, avowed or unconscious, even e preJu ices
· d
that JU h ·th th 1·r fellow men have had a good deal more to do than
ges s are w1 e
• • d · · the rules by 'which . h ld b
men s ou "
e governed (The
sy11og1sm m eterm1mng

Theory ofLaw I 67
Common Law, I). The term used by Hol mes in
his The Common Law lectures
were "expen·ence,' ' "exped"1ency," "litie," " neeessity "
•
In order to know different perspectives and
experiences of the people,
Holmes advocated for free speech and "fre
e trade in ideas." His concept
of freedom of expression was laid down in
his dissent in the 191 9 c~e . of
Abrams v. United States, where the majority
of the Cou rt uph eld the conv1ct1on
of Russian immigrants distributing leaflets
in protest to US intervention in
Russia. Holmes proposed the "clear and pres
ent danger test" in Sch enc k v.
United States:
"The question in every case is whether the wor
ds used are mad e in such
circumstances and of such nature as to create
a clear and pres ent dan ger that
they will bring about the substantive evils that
the US Congress has a righ t to
prevent. It is a question of proximity and degr
ee," Holmes wrote.
In the proper application and prediction of
the law, Hol mes proposed
adopting "the bad man model." In examining
a law or deciding a case, always
think from the perspective of the bad man,
not the good man. The bad man,
at the end of the day, cares only for the conseque
nces of the law, of wha t the
courts will do to him, and the rest are irrelevan
t. Would the law dete r the bad
man or not?
"Bu t if we take the view of our friend the bad
man we shall find that he
does not care two straws for the axioms or dedu
ctions, but that he doe s want
to know what the Massachusetts or English
courts are likely to do in fact, "
Holmes said in The Path of Law.
Holmes explained that nearly every man wan
ts to avoid disobeying the
law whe n confronted with disagre~able cons
equences (bad man perspective),
but not all wo~ld obe~ ~e law for tts sake even
if without consequences (good
man perspective). This is why the point of view
of the bad man is a bett er way
to ensure that everyone will obey.

. Even in contract law, parties are simply conc

erned with thei r own
~::r ests , or ~t least t~eir best interest, rather than
being motivated by mutual
h e or affection. Parties.are calculating rather than caring whe n they approach
t e table. Hence the need £ k ti ·
.gh ,. or s ep cism and prudence m . read
on n ts and duties of parties. ing stipulations

Law of the Status Quo - The Critical The

ory
In a capitalist society, indiv
their comprehension. The alienat idua dh
ls are con ..
. e ':°li ed by a pitiless law usually beyond
uma
invisible umbilical cord: the law of value. n spec imen is r d t •
ie O society as a whole by an

- Che Guevarra, Man and Socialism in Cuba

68 I Philawsophia: Philosophy and Theory ofPhili

ppine Law
 Me~diola, Luneta, and EDSA are familiar spots for militants and activists
who contmuously harp on laws and policies. No matter who sits in office, so
lo~g u~d:r t~~ same law, it's damn if you do, damn if you don't. What they are
domg 1s cnttcal legal theory" in practice.
The main tenet of critical legal theory is that the law has been the
means to enshrine and coercively impose the wishes of the dominant group
or institutions. The ruling classes are the same ones who make the law, judge
the law, and execute the law. Governments are of the ruling people, by the
ruling people, and for the ruling people. Since the law serves the status quo,
revolutions and uprisings are necessary. The masses are many and should rise
against the law of the ruling few.
Critical Legal Theory questions the law's assumptions, such as the
assumption that the people are free, and that the market is free. Rather, people's
choices and the market's behavior are already conditioned by economic, social,
ideological, and political forces, or the present "hegemony." This theory also
exposes the inconsistencies, inhumanities, and imperialism of First World
Western democracies. The clout of the Western superpowers prevents former
colonies from seeing the flaws in their legal systems that are being adopted
globally.
Critical legal theory is associated with subversives as it aims for a
"deconstruction" of the law and uses the "hermeneutics of suspicion" against
legal presumptions, assumptions, and doctrines to advance marginalized
causes. Among the offshoot of the critical legal theory are "critical feminist
theory," "critical race theory," and "post-modernism."
Marxists and socialists point to the elitist tendencies of the law; that
law's judgments and values serve the dominant paradigm, while disregarding
the real conditions of the people. Law is a form of class rule and control. In
the polemic Communist Manifesto, Marx wrote: "Your jurisprudence is but the
will of your class made into a law for al~, a wil~ ~hose essential ch,~acter and
direction are determined by the economic cond1ttons of your class.
In The Critical Legal Studies Movement, Roberto Mangabeira Unger
challenged societies to rethink their ideas. of righ~s and emancipation and to
continuously imagine, envision, and exp~~ment with structural arrangements,
with the goal of creating more opportumttes for more peop_le. ~ey must go
beyond the prevailing cultural/ideological ethos a~d the do~ma!1~n of a group
to allow the accomplishment of tasks along plurality and subJecttv1ty of values.

II. SCHOOLS OF JURISPRUDENCE

Th tud d growth of law is not solipsistic but should be pursued and
e · h de. s lyt~ to institutions and non-legal fields and disciplines such
nnc. e m re •a 10n • z
. thus the h istorzca
. · logzca
· z
as h1story, SOCIO1ogy,
economics' and logic, , socio ,

Theory ofLaw 169

 . f t retadon and adjudication. It was
I
economic, andformalist .8c~o:l~ ~ :. e?:t of readings for his law students
Thomas Jefferson w~~ me u _e m i~
1
oe criticism, rhetoric, science,
topics on history, pohtics, etbics, physics, p ~ d lawyer" who is well-read
1
and religion "as necessarytlo formt an adcc;;:c:: oef law as maintained by the
and informed on non-lega aspec s an
following legal schools of though.

The Historical School

It usually takes a hundred years to make a law, and then, after it has done its
work, it usually takes a hundred years to get rid of it.
_ Henry Ward Beecher, Proverbs from Plymouth Pulpit

The law is not simply made; it is in the making. It rolls a story struck in
real events.
The historical school holds that the law has a past and a progression. It
develops in a gradual and evolutionary process that cannot be separate? from
its national or indigenous character - from clannish rules, to folk beh~fs, to
landmark events that shaped a nation. The historic school raises the question of
how the law originated. Reading the law is not enough. One should also read
the historic struggles and the national profile or identity that colored the law.
Law operates in a specific language, impressed by cultural beliefs,
traditions, customs, temperaments, and the common experiences and
consciousness (geist) of a people. The sources of law will then include epics,
folklores, religion, and political developments that provide a window to the
sentiments, archetypes, and pass-on ideals.
The law is therefore the product of a national genius. For example,
the existence of the /upon and the barangay in our legal system can only be
understood with reference to their historicity. The same with our indigenous
cultural communities on their pre-Hispanic claim for ancestral domain and the
Bangsamoro struggle for more independence.
The main proponents of this school include Freidrich Karl von
Savigny, a German jurist, who claimed that the law proceeds from a voltgeist.
Law unfolds from the spirit of the people. Law is written and updated as the
people evolve.
. Sir_ He~ry Sumner Maine also argued that legal institutions must be
stud1e? h1s!onc~lly to be understood. Legal history shows patterns of evolutiol1
recumng m different. times in similar circumstances, such as repetitive
occ~e~ces of feudalism. In Ancient Law, he contended that progress ill
society 1s a movement from an emphasis on birth, family, or caste status to a
system based on merits and terms of contract.

70 I PhiLawsophia: Philosophy and Theory ofPhilippine Law

J
 Meanwhile, G. W.F. Hegel theorized that the State is the product of
converging historical forces (the dialectics of thesis and anti-thesis merging
into a synthesis) towards an Absolute Point where freedom will finally be
realized.
Why is freedom the must of history? Because man's reason and free
will, Hegel said, seek independent thinking, self-reliance, and personal liberty.
History is an unfolding of this. It is the story of man's inevitable march to
freedom.
The historical approach has inspired nationalist policies, but its tendency
to an exclusivist love for one's country has also been criticized for stirring
xenophobia, ethnic cleansing, discrimination on immigrants, racial superiority,
separatist movements, and opposition to globalization.

The Functional or Sociological School

Every good law or case you study was once a dream. Every good law or case you
study was dismissed as impossible or impractical for decades before it was enacted
Give your creative thoughts free reign, for it is only in the hearts and dreams ofpeople
seeking a better world that true social justice has a chance.
- William "Bill" Quigley, Letter to a Law Student Interested in Social Justice

The law is both a means of social control and progress. The sociological
school looks into law as a social phenomenon, as a measure of social trends
and reengineering. Ideally, the law should balance the diverse interests and
institutions of society and promote progressive national policies. The theory
is called "functional" by analogy to biology, where every cell has different
functions to maintain a healthy organism so that each one's different pursuits
serve the whole society.
This approach justifies "judicial activism" and "judicial legislation"
and is related to the Realist Theory. As opposed to positivist formalism,
functional "instrumentalism" justifies creativity in decision-making beyond
the original intent of the law, if this would serve public policy, human rights,
and social interests.
The main proponents of this school are: (1) William James, who taught
oflaw as a means to satisfy needs; (2) Charles Louis Baron de Montesquieu,
who said that the law must adapt to shifting social conditions; (3) R. Von
Jhering, who saw the law as a method of ordering society composed of
competing interests. Legal rules ~ust be used to resolve and h~on_ize, rather
than provoke or exacerbate conflict; (4) Roscoe Pound, who mamtamed that a
coherent society must have a pattern of culture that determines its ideology; (5)
Max Weber who made a typology of law into rational (logical/scientific) and
irrational (e~otional, superstitious). Weber criticized the institutionalization

Theory ofLaw I 11
 sponsive to concrete
and bureaucratization of laws that have become unre
law must have a
situations; (6) Roberto Mangeira Unger who held that
said that legal norm
cultural context to support it; and (7) Eugen Ehrlich, who
must follow actual social norms and be a "living law."
Law, law is an
For Pound, in An Introduction to the Philosophy of
conduct through a
institution to satisfy social wants, by ordering human
application of force.
politically organized society with a systematic and orderly
r's will upon others,
The purpose of the law is not to impose a particular secto
controlling different
but to integrate groups by reconciling, mediating, and
society.
interests. Competing interests are essential to a dynamic
developing the
Today, the function of settling conflicting interests and
ancing-of-interest
law has been given to conciliators and the courts. The "bal
been influenced
test' and the "compelling interest test' in jurisprudence have
there are overlapping
by the sociological school. This approach recognizes that
s and institutions,
and competing values and demands among individual
l classes, religions,
including organizations, communities, movements, socia
particular interests
and families. A definitive public policy must be adopted but
may not be ignored or denied due process.
nsive to an
Society must survive and adapt to the times by being respo
instance, Philippine
increasingly heterogeneous and pluralistic society. For
ps" before passing
legislative committees are expected to hear "interest grou
gnize and advance
laws. The sociological approach has been used to reco
bill of rights of the
the rights and interests of marginal groups, mainly the
underprivileged, over the power wielded by the State.

The Economic Approach

/( :S, the economy, stupid!

- Bill Clinton's 1992 presidential campaign slogan

'Cause we are living in q material world

- Madonna, Material Girl

Judge ~~ha~~ Posn_er took the lead in "economic jurisprud

ence" and
"
ase the balance of
hcon~equ~ntiali~m. For him, the purpose ofla w is to incre
appmess m society through ''wealth maximization.,,
wealth maximiza-
. . In Problems ofJurisprudence, Posner explained that
th services including
th1on •s e s~ of all tangible and intangible goods and
t e va1ue of nght.s · "Make everyone affected by them better off, or' at least no
,, ·a1
ti ·ty d
worse o~ he said. Wealth maximization is an ethic ofproduc vi an soc•
cooperation.

12 I Philawsophia: Philosophy and Theory ofPhilippine Law

j
 Good laws bear the imprint of economic analysis. After all, the citizens'
common interest is to prosper in peace. Thus, policies are evaluated based
on their effects on economy. Political leaders are primarily judged based on
their economic platforms. Countries are likewise rated according to economic
performance.
The law appropriately takes its cue from economics and plays a larger
role in modem legal systems. Posner cited Holmes in The Path of Law for
saying that "every lawyer ought to seek an understanding of economics."
Lawyers operate the current political economy and are "called on to consider
and weigh the ends of legislation, the means of attaining them, and the cost."
In everything the people have to give up something else, and public policy
must analyze the advantage people gain against what they may lose. As a
legal theory, economics wins since "it gets the job done" better than any other
method.
Still, Posner admitted that some things do not even have a price, such
as freedom. Wealth, however, still plays a role because people who live in
wealthier societies are more empowered and enjoy more freedom and quality
of life. Posner cited as example the cases of South over North Korea, of
Argentina over Cuba, and of Japan over Southeast Asia.

Formalist and Originalist School

Form ever follows function. This is the law.
- Louis Sullivan, The Tall Office Building Artistically Considered

Legal formalism or conceptualism holds that the law is a strict science

governed by formal axioms, legal principles, and rules of logic. The rules or
principles serve as the major premise, the facts of the case as the minor premise,
and the holding of the cases as the conclusion. Since abstract principles of
the law may be deciphered from the form or text of the law itself, only legal
experts or those with formal legal training can best interpret the law. Judges
need only use the rules of analytic thinking in applying the law to a particular
case.
Since formalism is committed to a set of rules or principles in relation
to the application of legal concepts fixed at the time of the law's creation, it
is referred to as "textualism." It is called the "plain meaning" approach in
relation to the interpretation of statutes, and "originalism" or the "original
meaning" approach in relation to the interpretation of the Constitution.
"Originalism" considers the "original intent" of the drafters, or the
"original meaning" based on what reasonable persons at the time the law was
written declare the law to mean in its "initial framework." When the meaning
of the law is not clear, the Court may call the assistance of an amicus curiae,
an expert of the law, to expose the real intent of the law. In the US, publications

Theory ofLaw I 73
such as The Federalist Papers are cited to decipher the intent and circumstances
of the drafters/proponents of the US Constitution.
Formalism adheres to judicial restraint that constrains a judge from
deciding or opining on what the law should be or should mea~ other than what
the law says or does not say. It is incidental to the separation of powers of
the three branches of government, where only Congress is. supposed to make
laws while the Judiciary only applies the law to the case m dispute, and the
Exe~utive implements the law. Originalism says that judges should only
"interpret," not "construct."
Critics of formalism and originalism say that they are "inert," consider-
ing only the letter but not the spirit of the law, inimical to the concept of an
evolving "living constitution" or a "living law." Much as the Bible has its fun-
damentalist interpreters, so the Constitution has its literalists. In law, there is a
rule of statutory construction called "equity of a statute," which admits within
the operation of a statute a class of cases that are neither expressly named or
excluded, but which, from their analogy, penumbra, or ejusdem generis are
within the intent or coverage of the law.
Formalism is a by-the-book approach best demanded from certain
~leme~ts of t~e. leg~l system who may abuse their discretionary powers,
~cludmg admm1strative agents who may issue rulings contrary to statutes, or
J~dges who are taske~ to apply the law on facts presented. A judge may not
d1sa~ee on the m?rahty of the law, or on the propriety of penalties, but he or
she 1s tasked t? stnctly foll~w the law. A government agent may wish to bypass
the law for bemg dysfu~ct1onal, ?ut it would still be illegal to do so. It is up to
~ed lawmthake~ to1questI_on the wisdom of the law or to change the law not the
JU ge or e 1mp ementmg agent. '
The positivist Jeremy Bentham espoused form a 1·ism. M eanwh'l 1 e,
a contem ad f • . .
. por3?' vocate ~ ongmahsm was US Supreme Court Justice
Antonm Scalia, a Republican Conservative who . . .
restraint in profounding new rights or obligations advocat~d ~or Jud1c1al
the Constitution or the law, or worse, contr to not othe~1~e mtended by
He wrote scathing dissents on landm k ary the Constitution or the law.
state laws banning abortion, when not:n ~:s: that decl31:ed ~constitutional
abortion rights. On the contrary Scat· ~t d e US Constitution speaks about
' ia c1 e the US Co ftut· ' 1
as a tool of construction, where civil rights . ns 1 10n s preamb e
generations born but unborn gen t· were mtended to consider not only
bl " era ions as well In th
pream e: to secure the blessing of libe t · e express words of the
rty o ourselves and our posterity."
Practice Theory

It's a free-for-all, after all.

Philip Bobbit, in Constitutional Inte .
approaches to law, or modalities, have the. rpretatzon, wrote that the different
tr own uses. One should know boW

74 I Philawsophia: Philosophy and Theory o"Ph ·1· .

':I 'ippmeLaw
-
and when to use them in making arguments. The modalities are neither true nor
false, right nor wrong, but expressions of what is true, which must be mastered
in legal practice.
Bobbit identified six main modalities. First is the historical, which must
be used when the intention is to decipher what was really meant by the framers
of the law. Second is the textual, in looking for what the law simply declares or
denies and how it can be interpreted in contemporary times. Third is structural,
inferring rules from structures and mandates. Fourth is doctrinal, applying
rules generated by precedent. Fifth is ethical or moral, appealing on the ethos
or ideals of a government (teleological). Finally, prudential or according to
exigencies and the calculus of costs and benefits.
Bobbit admitted that each modality has been preferred to advance a
certain ideology and that some people only acknowledge a particular approach
to the law, most sensitively, to the Constitution. But these modes are no more
than instruments to make an argument.
The adoption of a particular mode leads to a different outcome or case
opinion. Each mode has its own "grammar" and its own "logic." As much as
we have different languages that are expressions of our various modalities in
life, there are different methods of evaluating the law. We choose a particular
approach based on our sensibilities and motivations. This requires individual
decisions because the modalities do result in conflicting decisions; and for a
judge, his conscience and choice can spell the difference.

CHAPTER III CASE READINGS

NATURAL LAWAND POSITIVIST THEQRYQNHUMANRJGHTs

REPUBLIC OF THE PHILIPPINES v. SANDIGANBAYA N
(G.R. No. 104768, July 21, 2003)

TINGA, J., separate opinion:

Apparently, the majority adheres to the legal positivist theory ,
championed by nineteenth century philosopher John Austin, who defined
the essence of law as a distinct branch of morality or justice. He and the
English positivists believed that the essence of law is the simple idea of an
order backed by threats.
On the other side is Justice Puno 's espousal of the natural law
doctrine, which, despite its numerous forms and varied disguises, is still
relevant in modern times as an important tool in political and legal thinking.
Essentially, it has afforded a potent justification of the existing legal order
and the social and economic system it embodies, for by regarding positive

Theory ofLaw I 1s
 law as based on a higher law ordained by divine or natural reason, the
actual legal system thus acquires stability or even sanctity it would not
otherwise possess.
While the two philosophies are poles apart in content, yet they
are somehow cognate. To illustrate, the Bill of Rights in the Constitution
has its origins from natural law. Likewise a natural law document is the
Universal Declaration.
A professor of Jurisprudence notes the inexorable trend to codify
fundamental rights:
The emphasis on individual liberty and freedom has been a
distinctive feature of western political and legal philosophy since
the seventeenth century, associated particularly with the doctrine of
natural rights. In the twentieth century this doctrine has resulted in the
widespread acceptance of the existence of fundamental rights built into
the constitutional framework as a bill of rights, as well as receiving
recognition internationally by-means of Covenants of Human Rights
agreed upon between states.
As such bill of rights-whether proffered as a statement of the
inalienable and immutable rights of man vested in him by natural law, or
as no more than a set of social and economic rights which the prevailing
consensus and the climate of the times acknowledge to be necessary and
fundamental in a just society-will inevitably take the form of a catalogue
of those rights, which experience has taught modem western society to
be crucial for the adequate protection of the individual and the integrity
of his personality. We may therefore expect, in one form or another, the
inclusion of a variety of freedoms, such as freedom of association, of
religion, of free speech and of a free press.
In the case at bar, in the ultimate analysis both jurisprudential
doctrines have found application in the denouement of the case. The
Bill of Rights in the Constitution, the Universal Declaration and the
International Covenant, great documents of liberty and human rights all,
are founded on natural law.

HEGEL AND THE SPIRIT QFSTATUTES

WILLIAM F. PERALTA v. THE DIRECTOR OF PRISONS
(G.R. No. L-49, November 12, 1945)

PERFECTO, J., concurring:

XI. THE PETITIONER IS ENTITLED, AS A MATIER OF
ABSOLUTE RIGHT, TO IMMEDIATE RELEASE
After showing the absolute nullity of the judicial process
under which petitioner has been convicted to suffer the penalty of life

76 I PhiLawsophia: Philosophy and Theory ofPhilippine Law

impriso nment the inevitab le · · ·
.' consequence 1s that he 1s entitled, as a matter
of _absol~te nght, to be immediately released, so that he can once again
enJoy a hfe of freedom, which is the natural boon to law-abiding residents
of our country, and of which he was unjustly deprived through means
most abhorre nt to human conscience.

We must not hesitate for one moment to do our duty in this case.
The sooner we comply with it, the better. The process and judgmen t
under which petition er has been convicted and is now undergoing an
unjust impriso nment, is one of the hateful vestiges left in our country by
the moral savager y of a people spiritually perverted and debased. The
seriousn ess of this matter cannot be viewed with insouciance. We must not
lose time to wipe out such vestiges if we must protect ourselves against
their poisono us effects in our political, social, and cultural patrimony.

We must erase those vestiges if we want to keep immune from

all germs of decay the democratic institutions which are the pride of
our people and country, under which we are enjoying the blessings of
freedom and with which we hope to assure the well-being and happiness
of the unendin g generati ons who will succeed .us in the enjoyment of the
treasure s accumu lated by a bountiful nature in this Pearl of the Orient.

If we allow such vestiges to remain we are afraid that some·historian

may write about Philippi ne democracy, Philippine race, and Philippine
culture, what, on ancient art, Hegel said in the "Phenom enolo~ of the
Spirit," accordin g to Kohler, the greatest work of genius that the nmeteenth
century has produce d:

The statues set up are corpses in stone, whence the animat~g

. while the hymns of praise are words from which
sou1 h as fl own ,
all belief has gone. The tables of the gods ~ bereft of spmtua ·· l
d drink, and from his games and festivals, man no more
foo~ an th . ful sense of his unity with the Divine Being. The
receives e JOY
l k the force and energy of the Spm · "t h" h
w ic
works of the mu_se ac d assurance of itself just from the crushing
derived the certamty an Th y are th~mselves now just what they
ruin of goods and
are for us - beaut!
~~rfru-t
broken off the tree, a kindly fate has
l a maiden might offer such fruit
th se works to us, as
d
passe on ° th
off tree. It is not eir ac
. . .
tual life as they exist, that 1s given us,
t th earth and the elements, which
not the tree that bore them, no the climate that determined their
.· ubstance nor e
constitu ted therr s tlI
change of seasons which contro11ed
constitu tive character, nor Se t it is not their living world that
the process o f the ir growth. .o, 00•
th those works of ancient ·
art, not the
fate preserve s and gives us wth1 . I life in which they bloomed and
of
spring and summer that e brance ica . 1·
alone ofth1s rea 1ty.
• A but the veiled remem
npeneu, . .
. mpels us, as an imperative
lf preservation co
Our sense of national se : th l l"b
titioner to bis persona t erty,
duty, not only to restore ·mmed1a tely e pe
I

Theory ofLaw I 11
 but, all possible means, to obliterate even the memory of the inquisitorial
summary procedure depicted in the present case.

Such procedure exhibits either inversion, retroversion, subversion,

or perversion of elemental human concepts. It ignores completely
and debases the high purposes of a judicial procedure. It represents a
hylistic ideology which proclaims the supremacy of the state force over
fundamental human rights. We must never allow the neck of our people
to be haltered by the lethal string of that ideology. It is a virus that must
be eliminated before it produces the logical disaster. Such ideology is a
cancerous excrescence that must be sheared, completely extirpated, from
the live tissues of our body politic, if the same must be saved.

We cannot understand how anyone can justify the summary process

in question under the principles embodied in our Constitution. To profess
attachment to those principles and, at the same time, to accept and justify
such kind of criminal miscarriage of justice, is just sheer hypocrisy. It
is a repetition of what Seneca did when, after preaching moral virtues,
justified without any compunction the act of Nero, the sanguinary Roman
Emperor, of murdering in cold blood his own mother. It is reproducing the
crooked mentality of Torquemada, who, upon the pretext of combating
and persecuting heresy to save souls from hell, conceived the diabolical
idea of condemning their victims to an advanced version of hell in this
life, and among those who suffered under the same spirit of intolerance
and bigotry which was its very essence are counted some of the greatest
human characters, such as Galileo, Giordano Bruno, and Girolamo
Savonarola. That procedure might find justification in the thick heads of
the Avars, Huns, Vandals, and Teutons, or in the stratified mentality of
Japanese cullions, but not in a healthy mind of a cultured person of modem
times. To allow any vestige of such procedure to remain is tantamount to
reviving the situation during which our citizens endured sleepless nights
in constant fear of the hobnail terror stalking in the darkness, when their
personal security and their life were hanging by the thin of chance.
We wish a way could be found to free completely our people
of the sense of shame, which they cannot help feeling, engendered by
members of our race who justified such abhorrent summary procedure
and allowed themselves to become a party to the execution of a scheme
only acceptable to the undeveloped mentalities of the dark ages. It is
a shame that makes our blood boil when we think that countrymen of
Father Gomez, of Rizal, of Mabini, could accept procedures representing
the brutal ideology which is the very opposite of the humane, lofty, and
dignified ideology that placed said heroes and martyrs among the purest
and n9blest specimens that humanity produced in all countries, in all time,
for all ones and light years to come.
It is with joy and pride that we agree with all our brethren in
unanimously granting petitioner the redress he seeks in his petition.

78 I PhiLawsophia: Philosophy and Theory ofPhilippine Law

 H,L,A. HART QNLAWAND MORALITY
ALEJANDRO ESTRADA v. SOLEDAD ESCRITOR
(A.M. No. P-02-1651, August 4, 2003)

VITUG, J., separate opinion:

XXX

The Common Origin of Morality and the Law

. That law and morals are closely intertwined is a traditionally held
behef._ One school of thought even go as far as calling a law without
morahty as not law at all; but naked power, and that human beings not
only have a legal, but also the moral obligation to obey the law. It suggests
that where law clashes with morality, it can impose no obligation, moral
or otherwise, upon anyone to obey it; one may actually be morally bound
to disobey such law. The ancient role held by the Christian Church as
being the ruler of both spiritual and temporal affairs of men has laid that
groundwork for the impression. The Judaic-Christian God is thought to
be the source of both law and morality and man has come to know of
His law and morals through the human soul, the human conscience and
the human mind. With the rise of the secular state in the 16th and 17th
centuries and the corresponding decline in the authority of the Church,
legal thinkers such as Pufendorf, Vattel, and Burlamaqui would establish
legal systems based on scientific principles deduced from the nature of
men and things, that would guide the behavior of the metaphysical man in
directions that promote political order and assure a measure of protected
individual dignity. Such treatises on natural law have offered model
political systems based on scientific principles logically deduced from the
nature of man and the nature of things, serving to give a kind of scientific
legitimacy to the newly formed nation states emerging in the 17th and 18th
centuries under human sovereigns. Not surprisingly, sovereigns of that era
promulgated natural law codes consisting of religious commandments,
quasi-human moral values and civic virtues all couched in the language
of legal proscriptions proclaimed and enforced by secular states. Human
conduct condemned by God's law and forbidden by the sovereign's law
would be said to be morally, as well as legally, reprehensible or ma/um
inse.
As the law of the state became inexorably intertwined with higher
moral law based on both divine law and the law of nature, so, also,
human la; was seen to carry the moral authority of both. Jurisprudential
ramifications could hardly be contained.
In the last 19th century, legal reformers have consciously inculcated
moral concepts such as fault, intent, and extenuating circumstances into
both civil and criminal law. Law and morals have been drawn closer
together so that legal accountability, m?re accurately than not, would
likewise reflect moral culpability. Vestiges of these reforms are still

Theory ofLaw I 79
 . I Code for example, mitigating,
enshrined in our laws. In the Revised Pena that' may either decrease or
extenuating or agg_ravating circums~n:s offender are all based on the
increase the penalties to be meted O . •
moral attributes of the crime and the cnmmal.

The academic polemic

With the emergence of the secu Iar state, the greatest
. . contribution
. d'
of liberals to the issue 1s not the iscovery Of a pre-ex1stmg necessary
h . ' tt t t
. .
distinction between law and moraI1ty, ra er, th it is t e1r a emp a
.
separation the building of the wall to separate law from mora.hty, wh ose
' . . 1 ~ra Is attempt to divorce 1aw
coincidence 1s subhmely monstrous. L'b f "harm"
from morality by characteristically adhermg to some f~rm 0
principle: public authority may justly use law as coercive ~actor only
to prevent .harm to non-consenting third p~ies. M~r~ specdically, the
main distinguishing feature of liberalism is its oppos1t~on to mor~ls. l~w
or the legal interference up to and including (sometimes) pro~1b1 10n !
of putatively "victimless" immoralities such as sod~my, .prostltut1on,
fornication, recreational drug use, suicide and euthanasia. Liberals argue
that moral laws are, in principle, unjust.
This surge of liberalism has set the trend in the courts to adopt
a neutral and disinterested stand in cases involving moral issues, often
at the expense of obscuring the values which society seeks to enforce
through its moral laws. This matter brings to mind the case of Grisworld
v. Connecticut where the US Supreme Court, despite a presupposition
that contraception is always wrong, nevertheless, has invalidated that
state's anti-contraceptive law. In so deciding, the US Supreme Court has
not met head-on the issue of whether the use of contraception is immoral
but instead has struck down the law as being invalid on the ground of
marital privacy. Should Grisworld then be taken to sanction a moral right
to do a moral wrong?

Into the Twentieth Century: the Devlin-Hart Debate

On September 1957 in England, the Committee on Homosexual
Offenses and Prostitution chaired by Sir John Wolfenden has recom-
mended in its report to the British Parliament that homosexual behavior
between two consenting adults in private should no longer be a criminal
offense. The thesis holds that it is not the duty of the law to concern itself
with imm?~ality as such. The rep~rt has proposed to resolve questions
?f ~e legiti1:11~cy of ~egal~y enforc1~g. moral obligations by distinguish-
mg 1mmoraht1es that imphcate pubhc mterests from immoralities that are
merely ~rivate. 1:he Wolfenden Report would spark an academic debate
that persists to this day.

Pa~ick Devlin, then a High Court judge, has argued at the British
Aca~emy s hl959 Mf ~ccabaean. ~ecture that it would be 8 mistake to posit
a private sp ere o immora1ity mto which the law ought t t
oev 1·m,s legal mora/ism hinges on the theory no o venture.
that moral offenses insofar

80 I PhiLawsophia: Philosophy and .Theory ofPhilippine Law

as the_y affe_ct common good are fit subjects for legislation. Whether
behavior, pnvate or public may affect common good in such a manner
~at end3?ger the fabric of society and should thus be suppressed by law
1s a questlo~ ?f fact, which can be answered only after a full consideration
of the cond1t1ons prevailing in a given society. To Devlin, morals are not
merely ~ matter of private judgment; society should be in a position to
~nforce 1~s moral standards as a means of self-preservation, "whatever
iJs morality happens to be." Devlin would thus become the forerunner of
ethical relativism which suggests that there is no "right" and ''wrong" in
an~ absolute sense, that right or wrong depend entirely on the culture in
which one happens to live. Devlin then would tolerate individual freedom
only as far as possible and as long as it is consistent with the integrity of
society. Hence, while privacy is respected, it may be forfeited where one
person injures another.

H.L.A. Hart refutes Devlin's suggestion that immorality, even

if private, can be likened to treason, against which it is permissible for
society to take steps to preserve itself. Hart sees Devlin's view of people
living in a single society as having common moral foundation as overly
simplistic. To Hart, societies have always been diverse. With the rise of
democracy, society could more accurately be called a collectivity of ideas
and attitudes, an assemblage or gathering of people who live together
and work together and govern themselves collectively in spite of the
great diversities that divide them. Hart places emphasis on the right to
privacy and freedom of action which ought to be protected and should
be interfered with only when private behavior ceases to be private and
becomes a menace to the public or to some part of the public. One may
deduce from Hart's arguments that private consensual moral offenses
should not be legally prohibited because of the difficulties in enforcing
such laws and the near impossibility of detecting most offenses without
an unconscionable invasion of privacy.
-
Hart criticizes attempts to impose the morality of the majority on a
few. Justification for punishment especially when applied to conduct not
harmful to others represents a value to be pursued at the cost of human
suffering, the bare expression of moral c~ndemnation and tr~ats the
infliction of suffering as a uniquely appropnate mode of expression. The
idea that we may punish offenders against a m~ral code not to prev~nt
harm but simply as a means of venting or expressmg moral condemnation
is uncomfortably close to human sacrifice ~s a form of religiou~
worship. To Hart, Vox populi does not necessanl~ translate to Vo~ Dez.
Hart particularly singles out laws aimed at enforcmg se~ual morality as
· e - "Laws desi·gned to enforce sexual morality . to the .extent
oppressiv
that they interfere with certain forms of sexual expression and restrict ~e
ti t th t may be available, impose an acute form of suffenng
sexual ou e a dep rived of the only out1et ava1 ·1able to them. "
th
upon ose w o areh thus
Such laws and the coercive measures that may be u~ to enforce them
" · f quite a special degree. All restramts then must be
may create misery O ,, . John Stuart Mill in his essay "On
justified by strong reasons. Quotmg

Theory ofLaw I 81
 ,
Liberty," Hart expoun ds _ 'Th e on 1Y purpose for wh ich po . we r .can
rightfully be exercised over be r of a civilized co mm un ity
any m: m His ow n go od , agamst
his will is to preve~t harm eit he r physical or
to otHers.annot be rightfull
moral is not a sufficient warra y co mp ell ed to do
· nt. '!, c ht'm to do so be ca
·11 b
or forbear because it wt e better ,or us e it will make
him happier, because . . f others to do' so wo uld be
in the opm1on o ' wise or
right."

Ar riv ing at an Acceptable

Middle Ground
But Hart is not without his
critics, am on g the m beaking
Ro rt Pl.
George. George acknowle d
ge s t
h
a
t I
a~ s
per se ca nn ot m e me n be mo ra ;
laws can only succeed in
commandmg outward co nfo rm ity to moral
rules but cannot compel int . tan Id
ernal acts of reason. Su ch .
be a law requiring all people
to contribute to the chant1e
a_n ms .ce wo u
sanctions would force one to s. W hti e fear of
make such contribution, the
necessarily make him charita sam e do es not
ble. George, howe_ver, co nte
be utilized to make men mo nd s tha t la ws -~
ral by: ( 1) preventmg furthe
(2) preventing ba d example r self-corruption,
; (3) helping to preserve the
and (4) educating people ab ~o ral ecology;
out right and wrong. Th us, to
punishing victimless sexua htm , mo ral laws
l immoralities, for example
the conviction thi\t the act , pro ce ed from
s are truly wrong an d tha
characters of the people wh t the y damage the
o perform them, blo ck the
in specific ways offend again pa th to virtue, and
st the common good. Ge org
who, centuries ago, had lon e cit es ~s to tle
g anticipated bu t criticized an
the doctrine of mainstream d firmly rejected
contemporary liberalism, na
that the law should merely be me ly the be lie f
a guarantor of me n's rights
- instead of being, as it sho ag ain st another
uld be, a rule of life su ch as
members of the po lis good and wi ll ma ke the
just.
Robert George submits, and
I agree, that while morality
legislated, laws can help ma ca nn ot be
ke men moral by creating a
and profoundly affecting "m ora l ecology"
notions in society about
acceptable, forbidden and wh at is morally
required. People shape the
often treat others very differ ir ow n lives and
ently in the light of these no
is, "a good moral ecology ben tions. Th e point
efits people by encouraging
their efforts to be good, a ba an d supporting
d moral ecology ha rm s pe
them opportunities and ind op le by offering
ucements to do things tha
illustrate, the decision of US t are wi ck ed ." To
Supreme Court in Br ow n v.
of Education in 1954 and of Topeka Bo ar d
the Civil Rights Ac t of 1964
been responsible in clianging ha s primarily
or interracial marriage . society's perception on for
ced segregation

It might then ~ deduced tha

( l) seek to preserve the moral t moral laws are justified wh
value upheld by society an en they
morality enforced in a certai d (2) wh en the
n case, is true and correct.
standards that the provision It is within these
against "immorality" in the
Code must be examined to the Administrative
extent that such standards ca
facts and circumstances in the n apply to the
instant case before the Court
moral laws are justified only . As a rule then,
to the extent that they direct
ly or indirectly
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an d Theory of Philippine La
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