NAME: RONA MAY D.

SARCADIO SECTION: JD1-B MANRESA

ON PHILOSOPHY OF LAW: A REFLECTION PAPER

Law, as simply defined in our class, is a rule of conduct that is obligatory and
promulgated by a legitimate authority for the common observance and benefit of
the people. It is a rule of conduct because it is the basis for what to do or not to do.
The law is obligatory since it commands every human being to obey and comply
with it, thus being considered a duty. Legitimate authority is the legislature, which
was chosen and voted as representative of the people’s will. Above all, the law is
for the common good because no one should be deprived of the benefit that it
provides. But one must delve into philosophical questions such as why the law
exists? What are the theories behind its existence?

There are two schools of thought, each of which has unique and contrasting
ideas when it comes to the relationship between law and morality: natural law and
legal positivism. St. Thomas Aquinas would assert that “natural law consists of
those principles of eternal law specific to human beings. Such principles are
knowable by our natural powers of reason, and they guide us towards what is
good for humans.” In other words, natural law theory postulates that human laws
should be based on natural law, which is a moral order discovered through reason
and experience. Good law reflects this natural order, and natural law theory uses
moral reasoning to determine its conclusions. Natural law asserts that human
beings possess inherent moral entitlements that are not created by man or
government and should be reflected in laws. Thus, human beings innately know
“what to do” even without the conditioning of a man-made law.

On the other hand, legal positivism views human laws as social conventions
without a universal moral order. In this sense, for positivists, law exists due to the
social contract. People surrendered some of their rights and privileges in order to
establish peace and order within a society that is bound and limited by law.
Human law has the purpose of promoting the common good of the community,
according to St. Thomas Aquinas. Legal positivists focus on what the law is rather
than what it ought to be. They argue that a law can be valid or binding if it does not
reflect what is right or good.

Though Natural law and Legal Positivism do not meet halfway because of
opposing ideas, morality and human law can also co-exist. Lon Fuller would
support this by arguing that any genuine system of law necessarily abides by
moral principles. There is always a prima facie duty to obey the rules of the
genuine system of law, where prima facie duty is a moral philosophy. Further, he
added that legal principles should be anchored in the “morality of duty.”
 Imagine if there is no law existing and, as Jean-Paul Sartre would assert,
“man is condemned to be free,” that human beings are thrown into this world free
from any pre-determination and thus have the free will to choose and create their
own meaning and fate. If humans could just do whatever they wanted to do with
the absolute freedom that Sartre is talking about, the possibility of committing
immoral and contradicting actions to what the natural law dictates is a chaos and
problem for society.

For Oliver Wendell Holmes, laws are laid rules by superiors to guide the
actions of those under them and a species of command bestowed by the
sovereign. The existence of the law is necessary, for it brings people together for
one objective, which is the common good. In exchange for gaining the protection
of their rights and privileges while exercising ‘limited’ freedom, Hart, in his concept
of primary rule, emphasized the obligation of the members of society to perform or
abstain from doing some actions, thus restricting the actualization of violence,
theft, and deception.

Since our country is a democratic republic, where people have the power to
choose leaders that will represent their wills and minds, the possibility of abuse of
power and the absence of due process are always there. That is why this country
is governed by the rule of law. A rule of law is a legal principle that upholds five
universal principles: a government ruled and bound by law, equality before the
law, law and order, efficient and predictable application of justice, and the
protection of human rights. The rule of law prevents an arbitrary and corrupt
government, helps to protect against the oppression of individuals, and promotes
equality among the people, whether rich or poor, powerful or weak. As part of the
rule law, separation of powers is deemed necessary so that overriding of authority
and powers will be prevented in order for the balance or equilibrium to be
maintained. For Immanuel Kant, the essence of a republican government was the
separation of powers.