Chapter 3: THE TELEOLOGICAL PERSPECTIVE

Question: What is the telos of the law?

1. Labels
- The label "philosophical jurisprudence" has been used to identify the
thinking and method of this juristic school. The reason for this is that
the major part of its discourse lies in the realm of metaphysics.
- This label emphasizes the fundamental point of view of this juristic
school: that the law is ordained for the achievement of the precepts of
the natural law, namely, righteousness, justice, fairness, and equity in
the legal order.
- For this juristic· school, the achievement or realization of these
precepts in the legal order is the telos of the law.

2. Natural Law Basis

- The teleologists consider the natural law as the most potent force in the
development of legal institutions and legal concepts. This is based on
their view that there is a very present bond or relationship existing
between positive law and natural law.
- With the possible exception of some modern teleologists who advocate
the concept of the natural law with a changing content, the teleological
school of jurisprudence believes that a good legal order can be
deduced from the natural law, thus making the law universally valid for
all peoples.

3. The Greek Concept

- Socrates, Plato and Aristotle believed that good faith in dealing with
one another is the condition of life in society. This means that human
beings have a basic idea of the precepts of the natural law enabling
them to distinguish between right and wrong and to discern between
good and bad.
- They found their unassailable starting point in the study of the nature of
law in the moral nature and good faith of human beings. On this basis,
not power or might, human beings are able to live harmoniously with
one another.

A. Absolute Justice - Socrates

- No person is intentionally bad or evil because of his or her
understanding of justice; the failure to do what is just and avoid
what is unjust is really due to morbid physiological appetites,
mistakes, or even bad company. Socrates drew a distinction
 between absolute knowledge of justice (episteme) and mere
opinion of justice (doxa).
- Only the temperate person knows himself or herself and thus able
to bring his or her emotions under control. Socrates explained that
in relation to the gods a temperate person will do what is virtuous
and just, in relation to rights and obligations a temperate person will
do what ought and avoid what ought not, and in relation to other
persons a temperate person will act properly, patiently enduring
when necessary. A temperate individual is a good. happy and
sound person able to judge whether his or her acts and their
consequences would be just (virtuous) or unjust (vicious).

B. Rational Justice - Plato

- The reality or idea of "justice" exists in the mind even though one
does not see it done or performed in fact. Plato posited the concept
of justice yielding to the rational mind.
- Human beings are capable of discerning justice from injustice even
in their minds. Rational justice is sufficient to enable human beings
to attain their moral nature and good faith, keeping their self-respect
by doing good and fulfilling their proper functions in society.
- The law is an instrument of doing justice in the state, that is to say
preserving peace and harmony therein. Rational justice dictates
that every individual in the state should attend to his or her own
function whether he or she is a legislator, a judge, or whatever.

C. Particular Justice - Aristotle

- Aristotle denied Socrates' concept of absolute justice as too
exacting for it demanded the kind of moral excellence which is the
culmination of all virtues. Aristotle did not also agree with Plato's
concept of rational justice because it was still a subjective virtue.
- Justice is sound and sensible when, in light of events and
circumstances, it is fair and equal. In this context, Aristotle insisted
that a person cannot be unfairly or unequally treated even with her
or his consent. Consent cannot justify an unfair and unequal
treatment. This Aristotelian insight later became the basis of the
Roman law concept of volenti non fit iniuria ("to a willing person,
injury is not done").
- Put differently, justice is a particular virtue not a universal ingredient
in the application of law in society. In the thinking of Aristotle, the
rigidity of the administration of justice, which is apparent in the
jurisprudence of Socrates and Plato, should be tempered with fair
equality.
 - Proportional justice and numerical justice differentiated. In the
former, each person receives what she or he is entitled to on the
basis of ability and achievement. In numerical justice, each person,
regardless of station in life, counts for one and only one.

D. Law as the Product of Reason Related to Justice and Equity

- Righteousness, justice, fairness, and equality are the potentialities
of the law. To this end all persons are to conform their actions
because such an end is part of the natural order of things. Aristotle,
in particular, stoutly believed that the law, viewed in this light and
applied to particular situations, would provide a generally
acceptable solution.

4. The Roman Concept

A. Cicero
- According to Cicero, since humankind "is governed naturally by
utility, then, to rule the different races and cultures under the
Roman dominion effectively, the law must be based on the principle
of utility, that is to say in the interest of the ruler and not for the
interest of the governed.
- He introduced compulsion as an element of the law. He posited the
idea that the law cannot be an effective means of social control on
the basis of rationality alone but must also be able to compel
obedience.
- Cicero opposed prudence as a factor in determining the justice or
injustice of an act or conduct. An act may be prudent but the
question remains: is it just and fair. An act may be against a legal
rule but it may still be just.

B. Gaius
- Gaius advanced the view that the rules established by the citizens
to govern themselves fall under the jus civile, while the rules
common to all other persons based on the natural law are classified
under the jus naturale.
- Those that are in derogation of the precepts of the natural law are
not laws at all. If such laws exist it is due to the sanctions attached
to them, not because they are laws. They do not contribute to the
maintenance and preservation of lawness. On the contrary, they are
conducive to lawlessness.
Laws must be reexamined by the lawmaking body every once in a
while. This process would provide the means for legal cleansing
whereby any abnormality or irregularity in the legal order could be
adjusted to comply with the end and purpose of the law.
5. The Aquinian Concept - St. Thomas Aquinas
- Thomas Aquinas thought of the law as an institution ordained by
God. Here the Greco-Roman notion of (impersonal) nature as the
source of the law was substituted by the power of God who is "the
Legislator of the whole of justice and Governor of all things." The
people are then bound to obey secular rules only to the extent that
the precepts of the natural law are met.
- Thomas Aquinas stated that "kings must be subject to priests,
therefore, as soon as a ruler falls under sentence of
excommunication for apostasy from the faith his subjects are ipso
facto absolved from his rule and from the oath of fealty which bound
them to him.
- Thomas Aquinas expressed the view that a human being has a
rational soul and a will of his own. This is ordained by God for the
universal good. 38 But a human being has also a nutritive soul.
- Human reason influenced as it is by physiological sensations is not
sufficient to bring human beings to a correct understanding of what
is right and just. Reasonable people have varied ideas as to what is
right and just. Human beings have biases and prejudices making it
difficult to agree with them even when they claim to be acting in a
reasonable manner.
- Right reason is the governing rule of human conduct "for the
common good, which is preferable to one's proper good, because
the common good of the whole is God Himself."
- Should any rule or measure of action depart from the precepts of
the natural law, then it ls no longer valid but a perversion of the law.

A. Justice
- Justice as an ethical virtue - considered justice to be inherent in
every person.
- Justice as a juristic norm - considered justice as "the habit
whereby man renders to each one his rights by a constant and
perpetual will.

B. Law and Sovereignty

- Sovereignty itself is, of course, not subject to law, for it is the author
and source of law, but in our system while sovereign powers are
delegated to the agencies of government, sovereignty itself remains
with the people by whom and for whom all government exists and
acts. And the law is the definition and limitation of power.

C. Immutability of Law
 - The doctrine that the subsequent application of first principles may
be periodically expanded or contracted in accordance with the
prevailing conceptions of the times finds basis in the distinction
drawn by Thomas Aquinas as to the immutability of the law.
- Changes do occur in the subsequent applications of the law and
these changes may be by expansion or contraction in accordance
with the civilization of the time and place.

6. The Kantian Concept - Immanuel Kant

By transcendental philosophy, Immanuel Kant (1724-1804) means
learning or understanding determined by the mind itself. It is pure
knowledge for it is not gained by or through sense experience.

A. Human Consciousness and Conduct

- The human mind has the capacity to construct or harmonize ideas
and concepts even prior to experiencing them by the physical
senses.
- The truth and certainty of ideas and concepts depended on
subsequent experience or consequence, then they would be correct
only a posteriori but not a priori.
- Since the human mind is capable of forming and harmonizing ideas
and concepts independently of experience or consequence, then
they would be valid for all rational individuals at all times in all
places which would make them dependable guides to human
actions and conduct.

(1) The Principle of Rightness

The precepts of the natural law are not prompted by sense-
experience but by ethical altitude to do what is right and avoid what
is wrong with the application of the unique faculties of human
consciousness, namely, thinking, volition and judgment. This unique
capacity for moral choice sets human beings apart from other
creatures. Kant called this the principle of rightness.

(2) The Categorical Imperative

Immanuel Kant concluded that the universal criterion of right
conduct has to be categorical, that is to say one with its own
unequivocal merit, valid and good in itself, which all the people
would know at once without reference to subsequent experiences
or conditions. Kant also concluded that the universal criterion of
right conduct has to be imperative, that is to say compulsory and
mandatory. Thus. Kant called his one and only universal criterion
of right conduct the "categorical imperative" and expressed it in
 this wise: All persons living in society must act in such a way
that the maxim or cause of their conduct and decisions would
become the maxim of a universal law.

B. The Sense of Striving for Rightness

- First, Kant reiterated Aristotle's position that the philosophy of the
natural law should seek the level of humanity.
- Second, Kant reconciled the seemingly inconsistent notions of
human freedom and the demands of moral duty, thereby giving
meaning to the collective interests of the people.

C. Metalegal Basis of Law

- The clearest implication of this concept of the nature of the law is
that an individual can act freely when he or she strives for the
ethical. For, as Immanuel Kant puts it, "if the intention is not to
teach virtue but only to teach what is lawful, then, we need and
ought not to adopt the law as a guide for our conduct." It follows that
a person cannot be treated merely as a means to the telos of the
law.

7. The Utility Supplement

- The doctrine of utilitarianism is traceable to Epicurus (342-270
B.C.). Since then teleologists with the utilitarian complexion have
considered happiness as the measure of the goodness or badness
of acts and their consequences based on the hedonistic calculus.
- The telos of the law are the pleasures that are conducive to repose
of both individual and societal needs. Repose of mind, explained
Epicurus, is the situation or condition denoting freedom from pain.
- The legal ordering of society must always be directed to the
overcoming of pain. This is based on the fact that pain appears to
be the major part of human existence and pleasure a temporary or
transitory release from pain.
- To achieve this end, modern utilitarians posit a combination of the
theory of the good (happiness as the highest good) and the theory
of value (the usefulness of an act or conduct depends on its
consequences).

A. Stages of Modem Utilitarian Ethics

There are two distinct stages in the development of the modern
utilitarian supplement to the teleological perspective of the nature of the
law: Benthamite and Jherinian.

(1) The Benthamite Concept

Jeremy Bentham (1748-1832) felt that while an individual is a part
of a politically organized society, nevertheless, there remains an
element of his individuality that is not merged into society of which
he is a constituent part. It was Bentham's enduring contribution to
jurisprudence to have insisted with a reformer's zeal that the true
worth of an act or conduct depends on its consequence to the
individual interest. This is the stage that started individualist
utilitarianism.
(a) Nature Basis
- Bentham utilized the same considerations that Epicurus and
Plato mentioned to be the foundation of an expedient theory
of the nature of the law, namely, what pleasures ought not to
be sought and what pains ought to be avoided.
- A person instinctively seeks and enjoys pleasure or
happiness and shuns and loathes pain or misery.

(b) Measure of Utility

- Bentham provided a measure of utility in terms of pleasures
and pains to evaluate the effects of acts and conduct on the
greatest happiness of the greatest number of individuals in
the community.
- Pleasures of the physical senses
 of wealth, which are either of acquisitions or of
possessions;
 of amity or self-recommendation which refer to the
possession of the good will of a particular person or
persons
 of a good name or reputation,. which refer to the
possession of the goodwill of the society about him
 of power, which refer to the possession of the ability
and capacity to order or direct people by means of
their hopes and fears
 of piety, which refer to the possession of the good will
or favor of God either in this life or in the hereafter
 of benevolence, which refer to the possession of
charity or human sympathy, good nature, tolerance,
consideration, or mercy
 of malevolence, which refer to the possession of ill-
will, malice. or antipathy on those who may become
the objects of malevolence
 of memory, which refer to those which one may
experience at recollecting some prior pleasurable
experiences
  of imagination, which refer to the contemplation or
consideration of any pleasure which may be, in point
of time, present, past or future
 of expectation, which refer to the contemplation or
consideration of some future kind of pleasure
accompanied by the sentiment of belief
 of the ones dependent on association resulting from
or growing out of some association or connection with
certain objects or incidents which are in themselves
pleasurable
 of relief, which refer to experiences which have to do
with cessation of pain
- Pains of which human beings are susceptible to:
 of privation, which refer to pains resulting from failure
to possess any of the several kinds of pleasures and
include pains of unsatisfied desire and pains of regret
 of senses, which are related to disagreeable
sensations
 of awkwardness. which refer to the consciousness of
lack or want of skill or finesse
 of enmity, which refer to the pains which sometimes
results from the non-possession of the goodwill or the
possession of the ill-will of a particular person or
persons
 of bad reputation, which refer to the non-possession
of the goodwill or the possession of the ill-will of
society
 of impiety which refer to the non-possession of the
goodwill or favor of God
 of benevolence, resulting from the thought that
someone who happens to be the object of one's
sympathy is enduring pain
 of malevolence resulting from the thought that
someone who happens to be the object of one's
antipathy is enjoying pleasure
 of memory, which refer to those which one may
experience at recollecting some prior painful
experience
 of imagination, which may be derived from the
contemplation or consideration of any such pains
which may be, in point of time, present, past or future
 of expectation, which refer to the contemplation or
consideration of some future kind of pain
accompanied by the sentiment of belief
  of the ones dependent on association resulting from
or growing out of some association or connection with
certain objects or incidents which are in themselves
painful

- Two ways of measuring the utility of an act and its

consequences:
 The first is composed of several circumstances or
factors, viz:
 Extensity, which refers to the number of person
affected
 Endemic, which falls on certain individuals; it is
called primitive if it is confined to one
individual, but it is called derivative if it falls on
certain individuals because of their relations
with, or their interests in, the first enjoyer or
sufferer
 Epidemic, which affects a larger number of
individuals in a community due to their
awareness or consciousness of the existence
of the pleasure or pain; with regard to pain, it
may either be alarming or dangerous
depending on the factors characterizing it
 Pandemic, which falls on or spreads out to the
entire community
 Intensity, which refers to the degree of the
pleasantness or painfulness at a given time or
over a given period of time
 Duration, which refers to the period of time the
pleasure or pain lasts
 Propinquity, which refers to the influence of the
more immediate rather than the remote pleasures
or pains
 Fecundity, which refers to the tendency to
produce or lead to either pleasures or pains
 Purity, which refers to the tendency not to
produce either pleasures or pains
 The second way of measuring the utility of an act or
conduct is also composed of several factors which
have a great deal to do with personal or individual
differences as to sensibility to pleasures or pains.
 These factors are temperament, health, strength,
physical defect, relationship, education, physical
 condition, mental condition, sex, age, rank,
occupation, trade, profession, religion, honor,
sympathies, antipathies, ethnic group, and
inclination.

(c) Application in the Legal Order

- With this Jeremy Bentham sought to test all legislation and
all acts by their bearing on individual human happiness or
misery. Bentham concluded that the law is a system of social
control directing and governing persons to the maximum of
happiness and to the minimum of misery.
- Thus, rules should be judged by their tendency to promote
happiness and avoid pain.
- To this end, Bentham specified the ends of the law, namely,
"to provide substance, to produce abundance, to encourage
equality, and to maintain peace and security."
- This can be accomplished by direct pursuit of pleasure and
avoidance of pain.

(2) The Jherinian Concept

- Rudolf von Jhering (1818-1892) posited that there should be a
concurrence of selfish individual interests with the general
purposes of society.
- When the interests of society are met, then, the welfare of
society is served and. consequently, the welfare of the individual
members of society are met too.
- An act or conduct is good when it takes into consideration the
interest of society and tends to augment the happiness of the
entire society. Thus, the Jherinians are social utilitarians.

(a) Law of Purpose

Jhering's social utilitarianism is based on two principles:
- Principle of Purpose. Jhering stated that "purpose" is the
prime mover of the law. Choices and decisions are made for
a purpose. Human actions are thus end-directed. If the
exercise of the human will is determined by some external
cause, then there is no more reason to hold a person
accountable and responsible for what he or she does or does
not do. Put differently, a wrongdoer could very well plead the
"because of” in order to relieve himself or herself of
responsibility for his or her conduct.
 - Nature has endowed human beings with an interest in
pleasures and an inclination to shun pain. An act or conduct
is subject to pleasures and pain, but individual interests can
best be realized in concurrence with the collective purposes.

(b) Social Mechanics

To realize the partnership or concurrence of individual and
social purposes, the collective society or the politically organized
society applies its influence on the people by means of egoistic
and altruistic levers – this is social mechanics.

- Egoistic levers. This type of levers refers to incentives

addressed to the region of self-interest or selfish purposes.
 Egoistic non-coercive lever are the fact or event of
reward and the fact or event of association.
 lever of reward are expectations of honor, respect,
or income
 lever of association are expectations of
acceptance by individuals or society providing a
powerful incentive to the individuals in the
community to pursue interests where others can
share or participate in
 Egoistic coercive lever are the mechanical and
psychological means
 In the mechanical lever of coercion, society itself
acts in order to master, subdue, or break an
individual's purpose. Thus, for example, the state
may send a person to prison in order to prevent
him from further realizing his criminal fecundity.
 In the psychological lever of coercion, pressure is
exerted by society, just as in the first case, but the
mastering or breaking of the individual will or
purpose is done by the subject or person
concerned. To pursue the example given above, a
person subdues his or her own criminal tendency
when he or she sees that those who violate the
laws of society are punished for their wrongdoings.

- Altruistic levers. This type of levers are directed to the

benevolent or generous interests of the members of society.
 In the feeling of duty, there are certain
responsibilities and tasks enjoined on the individual
 members of society so that the conditions of social
living can be realized or accomplished.
 In the lever of feeling of goodwill, the purposes of
society are served by the love of family and the love of
country. Thus, solidarity and patriotism are outward
forms of the altruistic lever of feeling of goodwill.

B. Value of the Utility Supplement

- The principles of utilitarian ethics are applicable to and of good use
in legal theory, especially the development and thrust of the law.
Both individual interests and collective purposes should become the
end or object of the science and art of legislation.
o The science of legislation is the knowledge of the good for
the community.
o The art of legislation is finding ways and means to realize or
accomplish that good.
- The principle of utilitarianism has been applied in the field of human
rights.
o Bentham: that equality is one of the main aspects of law and
in reviving the importance not only of the right to life,
personality and dignity but also the collective purpose in the
conservation of human resources.
o Jhering's social utilitarianism sought a balance between
individual interests and the purposes of society, which
Roscoe Pound later developed into a theory of social
engineering of the conflicting or overlapping interests.
Jhering's classification of purposes into individual, political
and social was also Pound's basis for his theory of social
interests in which he identified and labeled the generic
interests of society.

8. The Hegelian Concept

- Georg Frederich Hegel (1770-1831) took a somewhat different
direction in the study of the problem of the nature of law. Hegel stated
his basic premise that "the law is the product of an evolutionary
process." But unlike Savigny's concept of the volksgeist as the basis
of the evolutionary process of the law, Hegel's evolutive process
appears in a dialectic pattern that has two elements whose struggle
between them is either wholly or partially settled or reconciled by the
synthesis of the contending views:
o Thesis
o Antithesis
 - Principle of Identity. It states that "all that is rational is real and what
is real is rational." By this Hegel means that nothing is real or actual
unless it is intelligible or rational as well. Thus, anything which is
intelligible is actual and anything that is actual is intelligible. The
principle of identity seeks the reconciliation of opposite views or ideas.
- Hegel held that all concepts are actualized by this dialectic movement,
that is to say a concept (thesis) may evoke an opposite idea
(antithesis) and out of their reconciliation or identification emerges a
new concept (synthesis). The synthesis becomes the prevailing idea
or view of the times until an opposite antithesis appears and
reconciliation or identification of the competing ideas or views is again
necessary.

9. The Neo-Hegelian Twist

- The Neo-Hegelians skillfully used Hegel's concept as the basis of their
theory of law-power in the hands of the party-state, where there is no
separation of the powers of government.
- This distorted interpretation of Hegel's philosophy of law and state
made a very strong appeal to socialists, like Karl Marx and Nicolai
Lenin. Marx saw immediately the thesis and antithesis in contemporary
society, that is to say bourgeois and proletariat. Marx used Hegel's
dialectic idealism and came up with his (Marx) own philosophy of
dialectic materialism, that is to say the withering away of the bourgeois
social and legal orders and the emergence of the dictatorship of the
proletariat.

10. Modem Teleological Analysis

A. Juristic Approach
- Modern teleological jurisprudents, notably Josef Kohler and Sidney
Hook, consider a knowledge of right and wrong or good and evil
that is relative to the changing conditions of time, place, and people.

B. Ethical Relativity
- Kohler: "there is no ideal absolute or absolute ideal." There is
simply no absolute formula (e.g., natural law philosophy] to
determine the different aspects of the legal ordering of society.
Kohler emphasized that "legal concepts, including law, have their
respective ideal tendencies not the same tendencies."
o Example: the principle that ignorance of the law excuses no
one from compliance therewith, particularly in crimes mala
prohibita, where intent is immaterial. Should this be
 tempered with "sound reason and mercy?" Are not common
sense and compassionate treatment of an offender or
adversary changeable values?
 Was this, then, the reason why the principle was not
applied at all in the case of People v. Navarro,
involving a thirteen year old girl who was arrested for
selling a tin of cocoa for an amount eleven centavos
more than the ceiling price, while tending her sister's
variety store when the latter was away at the time?
 And is this the reason, too, why it is wrong to lie but
not, it seems, to deceive the enemy in times of war?
- Sidney Hook posited another direction. For Hook, the criterion of
what is right really depends on what he called the “primary desires”
of the people, which, however, are constantly in flux. The problem
"of what is right and what is wrong” is to be conceived as the
equilibration of interests and their adjustments to environment.

C. Interest of the State

- The interest in the integrity and stability of the state has been
considered the supreme morality or ultimate value of society. This is
based on the theory that if the state cannot protect its own
structure, then it follows that no subordinate value can be protected.
- The interest of the state has become the cardinal standard or
measure of actions in the legal order, especially with regards to
judicial interpretation and review of cases involving government and
governmental problems. At bottom, when an act or conduct and its
consequence are in conformity with the interest of the state, then
they are considered as good and just.
- David Hume posited the view that "reason is and ought only to be
the slave of passions." Reason recognizes utility but passion to be
sure provides the compelling force of all actions. Hume believed
that an act or an idea is either approved or disapproved on the
basis of the public benefit from it. It is obvious that justice in Hume's
thinking may or may not be endowed with fair equality i.e. that
which fulfills the interest in the integrity and stability of the state is
justified and will be enforced by its coercive power, even though it
may be unfair in the individual cases.

11. Essential Attributes of the Law

- Greco-Roman-Aquinian viewpoint: right reason in relation to justice
and equity is the essential attribute of the law; the law is considered
binding because it conforms to the precepts of the natural law.
 - Utilitarian viewpoint: the greatest happiness of the greatest number in
the community, in terms of both individual and social interests, is the
important attribute of the law; the law is binding because it is useful.

Modem teleological analysis: the free willing individual in a changing society

stands out as the essential attribute of the law.