PHILOSOPHY OF LAW

Legal Philosophy - focuses on legal studies

Philosophy of Law - broader, abstract than legal philosophy

Define Philosophy of Law.

Philosophy of law is concerned with providing a general philosophical analysis of law and
legal institutions. Issues in the field range from abstract conceptual questions about the
nature of law and legal systems to normative questions about the relationship between law
and morality and the justification for various legal institutions.

Differentiate Philosophy of Law and Legal Philosophy.

Philosophy of law is the nature of law and concepts of the structure of law. It is also a nature
of law and its relation to society, norms, and practices. It asks “what is the role of the law in
society?” It deals with the essence of the law. While, legal philosophy is a branch of
philosophy that concerns with the law and the principles.It is a strict concept followed by the
court, judges, and attorneys. It focuses on the law itself and the principles governing and or
influencing it.

Descriptive Theory -  are concerned merely with telling you how the law or legal system
operates from an objectively identifiable way.
1. Doctrinal - a doctrinal theory describes in general and abstract terms what the content
of a particular field of legal doctrine is.
2. Explanatory - theories about why the law is the way it is.
3. Consequential - the consequences that will be produced by a given regime of legal
rules.
Normative Theory - talk about how law should be. Should the law be concerned with
morality? Should we take sociological factors into account? How can law be more just? Tells
us what the law ought to be. Normative legal theories, on the other hand, are by their
nature evaluative.

 Asks questions about the normative justification for the state and the normative
principles that establish the ends of and limits on the content of the law.

Illustration:
A very simplistic example of a descriptive account would be a statement saying something
like: 'Water boils at a hundred degrees.' The statement is not concerned with whether this is
good or bad- it just is. Normative theories would focus on whether this is a good thing or
not.

WHAT IS LAW?
1. According to Thomas Rutherford
- Any rule of action
- Order of sequence
- Ought not to deviate

Will not - man and the use of his intelligence

Cannot - man and his powerlessness in the laws of nature
Ought not - man and the limitations of his freedom (reward and punishment)
*Laws are promulgated to advance social change. It is a rule of conduct, just and obligatory.
It is promulgated by a competent authority.

2. According to Philippine Case Law (Lapitan Vs PCSO)

 In its specific and concrete sense, a rule of conduct, just, obligatory, formulated
by a legitimate power for common observance and benefit. (Lapitan vs PCSO)
 “In the interpretation of laws, it is presumed that the law-making body intended right
and justice to prevail”

Tanada Vs. Tuvera

Doctrine of Operative Fact recognizes the existence of the law or executive act prior to the
determination of its unconstitutionality that produces consequences that cannot always
be erased, ignored or disregarded. In short it nullifies the law or executive act but sustains
its effects.

3. According to Justice Edgardo Paras

Principle of Subsidiarity-  "the principle that a central authority should have a subsidiary
function, performing only those tasks which cannot be performed at a more local level".
(promoting co-operative and relations) 

Article 2 (7) U.N. Charter: “Nothing contained in the present Charter shall authorize the
United Nations to intervene in matters which are essentially within the domestic jurisdiction
of any state or shall require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application of enforcement
measures under Chapter VII.”

4. Causes of the Failure of the Legal System (Batangas CATV vs. CA)
1) Failure to publicize or notify the public is a failture of the legal system, as “publication is
necessary to apprise the public of the contents of the (penal) regulations and make the said
penalties binding on the persons affected thereby…”  

Batangas CATV, Inc. v. The Court of Appeals G.R.No. 138810, September 29, 2004

2) Lack of definitive laws then disputes are resolved ad hoc (at one instance) Resolved: It is a
canon of legal hermeneutics that instead of pitting one statute against another in an
inevitably destructive confrontation, courts must exert every effort to reconcile them in
respect of the handiwork of coordinate branches of the government

FUNCTIONS OF THE LAW

1. Social Control
 Members of the society may have different social values, various behaviors and
interests. It is important to control those behaviors and to inculcate socially acceptable
social norms among the members of the society.
 There are informal and formal social controls. Law is one of the forms of formal social
controls. As to Roscoe Pound, law is a highly specialized form of social control in
developed politically organized society.
 Lawrence M. Freedman explains the following two ways in which law plays important
role in social control: first, law clearly specifies rules and norms that are essential for
 the society and punishes deviant behaviour. “Secondly, the legal system carries out
many rules of social control. Police arrest burglars, prosecutors prosecute them, courts
sentence them, prison guards watch them, and parole broads release them.
 The power-limiting function of law is one of its most normative functions. Law can set
limits to actions of the State and of the individuals belonging to a society;
 In doing so, law restrains contingency and creates certainty. The exercise of powers
becomes predictable in so far as actors have to abide by the limits set by law.

2. Dispute Resolution
 Disputes are an avoidable in the life of society and it is the role of the law to settle
disputes. Thus, disagreements that are justiceable will be resolved by law in court or out
of court using alternative dispute settlement mechanisms.
 The laws create a system where individuals can bring their dispute to an impartial tactic,
such as a judge or jury. There is also ore legal option where individuals work together to
find a solution, such as by using alternative dispute resolution (ADR). There are courts at
every level, stranded from local to federal. To decide who should win in a dispute.

3. Social Change
 A number of scholars agree about the role of law in modern society as instrument to
social change. Law enables us to have purposive, planned, and directed social change
[Steven; 2003: 20-21]. Flexibility of law provides some measure of discretion in law to
make it adaptable to social conditions. If law is rigid and unalterable, it may not respond
to changes spontaneously which may lead to resentment and dissatisfaction among the
subjects and may even result into violence or revolution. Therefore, some amount of
flexibility is inevitable in law