LEGAL PHILOSOPHY

No man is above the law and no man is below it: nor do we ask any man’s permission when we ask
him to obey it. That old law about ‘an eye for an eye’ leaves everybody blind. The time is always
right to do the right thing.
– MARTIN LUTHER KING, JR. –

The Philosophy of Law is the branch of philosophy which deals with the legal aspect, that
is, the wisdom of the law. It simply studies the nature of the law with particular reference to the
origin and end of law, all the principles that govern its formulation.
► object – study of law in a universal sense.
→ universal
→ particular –
However, law can also be studied in its particular sense thru jurisprudence.

♥ Public law – Constitutional; Administrative; Penal; Procedural, International law.

♥ Private law – Civil law; Commercial law – all laws that govern relationships among individuals
or juridical entities.

The Philosophy of Law → transcends the competence of each individual juridical science.
↓↔ Immanuel Kant – says Juridical Science does not answer what is Law. It only answers
the question of what is established by law of a certain system (quid iuris).
↓
↓→ considers the essential elements which are common to all juridical systems. It looks
into the universal concept of law.

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Giorgio del Vecchio (Italian Jurist) said:
→ Philosophy of law = logical universality
Seeks its origin
General characteristics of its historical development
Evaluates it according to the ideal of justice drawn from pure
Reason.

Attention: Philosophy of Law – may not be the same in the hands of the lawyers and philosophers.

↔ Lawyers – starting point is the juridical institutions, practice or ideal and the end sought is its
establishment on a rational basis.
↔ Philosophers – the premise lies beyond the domain of law in the realm of rational existence or
human nature from which the functions of law in society is deduced and
harmonized with man’s other activities.

What is Law? ↓
What is Justice? → The study of law in a universal sense constitutes the object of
the Philosophy of law.

Law is studied as to particular points, in which case the object is Juridical Science in a narrow
sense.

Philosophy of law – is a quest of law which appeals to reason to obtain Justice.

↓→ force – to enforce the law to be obeyed (kings, emperors, prince) = fear, punishment.
→ functions: Philosophy of law is to formulate law that is reasonably accepted to the
people to whom it is addressed.
→ is opposed to tyranny.
→ (practical function) – teaches and prepares for the positive recognition of the juridical
Ideal.

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Formulation:
- Guarantees – freedom of the individual
- International law
- Humanitarian development of Penal Law
- Universal recognition of Human Rights.

Objectives:
LEGAL PHILOSOPHY equips students with outright skills in questioning, analysis and the
ability to look at the facts and law from different viewpoints.
↓→ (broad-minded) - mindful of the essence of the rules rather than merely sticking
to their literal meaning.
→ invites everyone to be CRITICAL, i.e., critical even of one’s own beliefs, for one
is not always right all the time, and truth may come from anyone.

►Thus, Philosophy is not only for philosophers but for anyone who cares to know and understand.

LAW:
→ is a rule of conduct, recognized by custom or by formal enactment, which a community
considers as binding upon its members.
→ is normative in that it guides human conduct.

Supreme Court defines LAW as:

- Law as a rule established to guide our actions, with no binding effect until it is enacted;
thus, it has no application to past times but only to future time.

SOURCES OF LAW
- Religion
- Morality
- Equity
- Custom
- Societal conventions
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Law → is science of moral laws founded on the rational nature of man that governs his free
activity for the realization of the individual and societal ends of life.
↓→ rule of conduct, just, obligatory, formulated by legitimate power for common observance and
benefit.

♥ Man’s relationships and dealings with his fellowmen would be chaotic without the consciousness
that law will be there guiding and protecting each person’s day to day affairs.

● GROWING DISRESPECT OF THE LAW – the prime reason is the failure of the law to
communicate with the layman.
→ expectations of JUSTICE – between PRACTICAL DECISION and the IDEAL
RESULT – if expectations were not met then follows the diminution of
respect, lowering the prestige of law and lawyers alike1.

● Socrates says – living rightly is to exercise knowledge and reason.

THUS, Legal Philosophy – should be informed with reason not only from one side, but all sides to
the argument should be carefully weighed and considered.
→ the goal of Philosophy is WISDOM.
↨↔ requires questioning what is questionable.
→ requires questioning everything.
☺Will Durant points out that it is shameful question to ask if philosophy is useful.

►Legal Philosophy – Jurisprudence – science and philosophy of law.

Fundamental Questions: What is LAW as such?
☺Lawyers – study on which Law applies to a particular case.
☺Legal Philosophers – ask if what purports to be a law is indeed true law, in that it complies with
the requirements of what law is.

1
TABUCANON, G.M., Legal Philosophy for Filipinos, A case Study Approach, p.3.
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► Task = Philosophy of Law – unveils the goal of the law and its underlying motives of the
society that creates laws and sustains them.

► Legal Philosophy – has something to do with JURISPRUDENCE.

JURISPRUDENCE: → knowledge of the law; furnishes the deepening perspective to the
study of law.
☺ 1. Historical school – law in the context of the common consciousness of a group of
people.
☺ 2. Teleological school – moral and rational nature of humankind.
☺ 3. Positivist school – conscious norm of the state backed by its authority and force.
☺ 4. Functional school – jural postulates, social interests and national policies of the
people.
☺ 5. Realist school – law = on the basis of the on-going experiences and inter –
experiences of the people.
→ is the law verifiable in the practical life of the people?
☺ 6. Policy Science school – sees law in relation to the degree of success of society in the
creation, clarification and realization of social values.
CHALLENGES:
→ students should have first a working background and overview of the thinking of the
different schools of jurisprudence on the nature of law2.

→ Oliver Wendell Holmes Jr. – (supreme court -USA)

↓→ strongly advised the study of Philosophers and Jurisprudence.

A. LAW as RULES
↓→ fails to consider the deeper – human and social factors why people violate the law, and
the impact of the violation on the victim, the larger society as well as the offender 3.

Critique: quick disposal of cases from the court dockets (pending)

2
PASCUAL, C., Introduction to Legal Philosophy, p. 3.
3
TABUCANON, G.M., op.cit., p. 17.
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EQUAL PROTECTION OF THE LAW
↓→ principles of equality = JUSTICE must be understood in the sense of what is fair and
equal.
a. Proportional – man receives that which he is entitled on the basis of his ability and
achievement (distributive).
b. Numerical – man is counted for one and only – equally = justice.

☺William Douglas (1898-1980) – wrote and I quote: law is not a series of calculating machines
where definitions and answers come tumbling out when the
right levers are pushed.
↓→ in his life – he experienced life’s miseries – as student worked on odd jobs as waiter,
janitor, and cherry picker, was quoted to have said: I have worked among the very, very poor, the
migrant laborer, I who saw being shot at by the police. I saw cruelty and hardness, and my impulse
was to be a force in other development in the law4.

B. LAW AS PROCESS
↓→ rules as an aspect of the process. Laws are not just statutes per se but the whole
gamut of the life experiences of lawmakers, law enforcers, law breakers or followers
as well as lawyers, judges and legal theorists.
● Law is very like an iceberg; only one-tenth of its substance appears above the social
surface in the explicit form of documents, institutions, and professions while the nine-tenths of its
substance that purports its visible fragment leads a subaquatic existence, living in the habits,
attitudes, emotions and aspirations of men5.

Legal Issues: 1. Historical

2. Psychological
3. Economic
4. Sociological
► societal Institutions

4
Ibid., p. 18.
5
Ibid., pp. 18-19.
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 a. Family
b. Community
c. Workplace
d. School
e. Religion

► Filipino Value System

1. Hiya
2. Utang na loob
3. Pakikipag-kapwa
4. Pakiusap
5. Pakikisama
6. Paggalang
7. Delicadeza
8. Gaba
These factors define meaning to a filipino behavior in relation to his dealing with the law.

● COMMON CHARACTERISTICS OF LAW

1. Obedience – law in the sphere of Freedom.
2. Generality – law is more general. It is indeed UNIVERSAL - i.e., for all.
3. Promulgation – St. Thomas said that – promulgation is essential to law.
a. natural law – no need of promulgation
b. law’s force affects not only those to whom the law is directly promulgated but for
those who were not parties to its promulgation (e.g., Foreigners – subject for
penal laws).
c. durability of the law – the force of law extends to the future and binds those
unborn at the time the law was promulgated.

St. Thomas – argued that natural law was promulgated by God instilled into man’s mind – this
natural law must be known by man naturally.
4. RULE OF LAW
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 ► legal principles = must be decided by applying the accepted principles of law.

Here: discretion of the JUDGE is always set ASIDE!

↓→ Judge = must apply the principles of law according to the will of the Legislator. That
means to say – the interpretation of the Legislator – the mind of the
legislator.
↓→ Kofi Annan (UN Sec. Council) → RULE OF LAW IS A PRINCIPLE OF GOVERNANCE.

1. Publicly promulgated
2. Equally enforced
3. Independently adjudicated
4. Consistent with International Human rights norms and standards

♥ Legal Principles (Rule of Law)

1. Supremacy of law – rule of law is higher than any persons discretion or will.
2. Accountability to the law – one is liable to be called on or to render an account
before the law.
3. Fairness in the application of the law
4. Separation of powers
5. Participation in decision making
6. Legal certainty
7. Avoidance of arbitrariness
8. Procedural and legal transparency

♥ Distinction: NATURAL RIGHTS AND CIVIL RIGHTS

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 Natural right → those right that appertain to man in right of his existence.
→ fundamental rights endowed by God upon human being6.
→ man did not enter into society to become worse off than he was before,
nor to have fewer rights than he had before but to have those rights better
secured. His natural rights are the foundation of all his rights7.

Civil rights – those natural rights particularly rights to security and protection which by
themselves, individuals could not safeguard, rather requiring the collective
support of civil society and government8.
↓→ those appertain to man in right of his being a member of society.

Natural law – proposes that there is a link or relationship between concepts of law and morality 9.

6
AQUINO, D.R., Philosophy of Law, p. 38.
7
AQUINO, D.R., Op. cit., p. 39.
8
AQUINO, D.R., Op. cit., p. 39.
9
AQUINO, D.R., Op. cit., p. 37.
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