1.

4 elements of definition of law:

A. a rule of conduct C. by legitimate power

B. formulated D. for common observance and benefit
2. define jurisprudence and how is it different and similar in Legal philosophy
Ans. From the Latin juris and prudentia or the “prudence of law” or “practical knowledge of the law,”
jurisprudence is supposed to explain the nature, theory, development, and objective of a law.
Legal philosophy or philosophy of law (from Greek word PHILOS and SOPHIA meaning wisdom and love, thus
philosophy of law means love of wisdom of law) is a branch of philosophy that examines the nature of law and
law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What
is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?". It is
about the analytical and normative study of law and legal concepts. This includes questions of “what is law?”
concerning the nature of law and fundamental questions about the law's reach and authority.
3. distinguish the positivist theory of law and natural theory of law.
Ans. Life itself has rules, and we call them law. We follow the law because it is the law. Positivists are
positive on what the law “posits” by the authority given to the State or by socially accepted rules. Law is purely a
product of human will, not of some natural law or divine will. Natural theory of law holds the view that law
should reflect moral reasoning and should be based on moral order.
Additional:
 Realism is a theory that all law derives from prevailing social interest and public policy.
According to this theory, judges consider not only abstract rules, but also social
interests and public policy when deciding a case.
 Formalism is a theory that legal rules stand separate from other social and political
institutions. According to this theory, once lawmakers produce rules, judges apply
them to the facts of a case without regard to social interests and public policy.
 Critical Legal Studies (CLS) is a theory which states that the law is necessary intertwined
with social issues, particularly stating that the law has inherent biases.
4. explain rosseau’s social contract and the concept of general will.
Ans. In Rousseau’s Social Contract, each individual is considered part of the whole society, the collective body. It is
a moral body where citizens share in the sovereign power. People join society not to resign their natural liberty but
for improvement and sophistication. The social contract is there to enhance man’s freedom and this is realized
through democratic institutions that allow every citizen to vote on every major decision, and where a subject of
the law is also a lawgiver.
The general will should come from all to apply to all. It is important that legislators and citizens have
shared values and identity of interest. The people, meanwhile, must be informed and publicly spirited. In a spirit of
fraternity, duties are self-imposed through deliberation and election. The general will is not the will of all or the
will of the majority, but the common interest expressed through laws.
5. What DID Locke and Montesquieu proposed to have a “balance of power” in govt?
Ans. to obtain a balance of power, Locke, like Baron de Montesquieu, proposed that the legislative, executive, and
federative powers must be separated in a “tripartite system” (Montesquieu proposed the Judicial, rather than the
Federative, as the third branch of government) so that no government body could be all-powerful. It is undesirable
that the person who makes laws should be the same person to decide on executing them as private interest may
factor in. Locke also espoused the separation of Church and State so that people may be free to associate for
other-worldly matters and follow their individual conscience.
6. explain machiavelli’s “the end justify the means” theory in governance
Ans. the end justifies the means. If the ruler succeeds, the people are his. If he fails, they turn against him.
Commentators explain that Machiavelli was not really justifying evil here, only the necessary lesser evil. In fact,
Machiavelli was lamented the moral degeneration of Italy as compared to the civic virtues of the ancient Romans.
The means Machiavelli referred to were the cunning ways of the Prince, which he justified to bring about the end
of an ideal Republic

7. mercantile law is not the law of a particular country, it is the law of all nations. True or false? Is this applicable
to our jurisdiction and present legal system?.
Ans. True. It is to be noted that mercantile law, unlike other fields of law, is customary in nature and
develops with the state of the economy, market conditions, and commercial technology. It may not
therefore be wise to rest them on black-letter law such as the Constitution, but must be free to follow
the “best practices” of the trade.

8. art.4 of RPC provides that “a criminal act must be performed, not only intended”. Who was the philosopher
who developed this principle. Explain.
Ans. Thomas Aquinas. Voluntariness and involuntariness of actions must be taken into account in judging liability.
Aquinas said that “we apply the word voluntary not only to that which proceeds from the will directly, as from its
action, but also to that which proceeds from it indirectly as from its inaction” (S.T., I-II, Q.6, A. 3, Reply 1).
Voluntariness requires an act of knowledge and an act of will, “to wish and to act” Aquinas faulted as species of
imprudence “thoughtlessness” or defect in judgment, inconstancy of action, and lack of due care or negligence.

9. distinguish the concept of retribution and restitution.

Ans. Restitution is an act of commutative justice, where equality is reestablished by giving back what is taken.
Retribution through exemplary punishment must restore that order (S.T., I-II, Q.87, A.1). A punishment must
consist of something perceived to be “evil” by the wrongdoer by depriving him of a good, so that potential
wrongdoers will refrain from breaking the law if only to avoid the penalty (Summa Contra Gentiles, II, 141).
Although punishment will be perceived as bad by the law breaker, it will be for the common good of the
community, and also good to the criminal since the law will break his excessive indulgence of his will.

10. how did the libertarians and classical philosophers argued and treated “property”? give 3 exmaple of
treatment of property.
Ans. Property can be private, communal or public, and corporate. Private property is considered a natural right
by libertarians and classical philosophers, arguing that humans need to keep goods for personal consumption
and improvement.

11. classification of law according to Roman Law. Explain

Ans. Roman law classifies law into public and private. Public law (jus publicum) regulates the government.
Meanwhile, private law (jus privatum) determines the rights and duties of individuals.

12. on the nature of roman law, what are the precepts of the law and its influence on justice.?
Ans The precepts of the law are:
 to live honestly,
 to injure no one,
 and to give every man his due, which is justice.
 It influenced the civil code of the Philippines, specifically Article 19. This became the basic foundation of law to
protect the rights of everyone in the country.

13. what is “quasi-contract” under the concept of roman law?

Ans. That do not originate in a contract and do not arise from a delict are quasicontractual, such as when a man
has managed the business of another during the latter’s absence.

14. “as the constant and perpetual wish to render everyone his due.” How is this concept instituted in the
Philippines juridical system?.
Ans. Article 19, 20 and 21 all discussed about provides that every person is liable every conceivable wrongful acts.
It laid down the general duty of every person to perform all actions according to law and without violating the
rights of others.

15. Accesorium sequitur naturam sui principalis

Ans. Accessorium sequitur naturam sui principalis means the accessory follows the nature of its principal. Art.
466. Whenever two movable things belonging to different owners are, without bad faith, united in such a way that
they form a single object, the owner of the principal thing acquires the accessory, indemnifying the former owner
thereof for its value.

REVIEWER:
Latin Legal Maxims/Precept 1987 Philippine Constitution
103 Accusare nemo se debet, nisi caram Deo(god). (No one is compelled to accuse himself, except before God.)
Art. III, Sec. 17. No person shall be compelled to be a witness against himself.
Audi(audio) alteram partem. (Hear the other side.) Art. III, Sec. 14. (2) In all criminal prosecutions, the
accused...shall enjoy the right to be heard by himself and counsel...to have a speedy, impartial, and public trial.
Domus sua cuique est tutissimun refugium (refuge) (To everyone, his house is his surest refuge.) Art III, Sec. 2. The
right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable...
Non bis in idem. (No one shall be punished for the same offense.) Art. III, Sec. 21. No person shall be twice put in
jeopardy of punishment for the same offense. Latin Legal Maxims/Precept New Civil Code
Accessorium sequitur naturam sui principalis. Art. 466. Whenever two movable things belonging to different
owners are, without bad 104 (The accessory follows the nature of its principal.) faith, united in such a way that
they form a single object, the owner of the principal thing acquires the accessory, indemnifying the former owner
thereof for its value.
Aedificatum solo cedit. (The building yields to the land.) Art. 445. Whatever is built, planted or sown on the land of
another and the improvements or repairs made thereon, belong to the owner of the land xxx.
Boni judicis (justice) est lites (litigation) dirimere. (It is the duty of good justice to prevent litigation.) Art. 2029.
The court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise.
Caveat emptor. (Buyer beware.) Art. 1563. In the case of contract of sale of a specified article under its patent or
other trade name, there is no warranty as to its fitness for any particular purpose, unless there is a stipulation to
the contrary.
Ex pacto illicito non oritur action. (No action arises out of illicit bargain.) Art. 1352. Contracts without cause, or
with unlawful cause, produce no effect whatever. The cause is unlawful if it is contrary to law, morals, good
customs, 105 public order or public policy.
 Facta legem facunt inter partes. (Stipulations have the force of law between parties.) Art. 1159. Obligations
arising from contracts have the force of law between the contracting parties and should be complied with in good
faith.
Finita voluntate, finitum est mandatum. (Upon the termination of the will, the agency is terminated.) Art. 1920.
The principal may revoke the agency at will, and compel the agent to return the document evidencing the agency.
Such revocation may be express or implied.
Genus nunquam peruit. (Generic things do not perish.) Art. 1263. In an obligation to deliver a generic thing, the
loss or destruction of anything of the same kind does not extinguish the obligation.
Homo est et qui est futurus. (He is already a man who will become a man.) Art. 40. Birth determines personality;
but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later x
x x.
Ignorantia legis neminem excusat. Art. 3. Ignorance of the law excuses no one from compliance therewith. 106
(Ignorance of the law does not excuse.)
In pare delicto potior est conditio defendatis. (Where both parties are at fault, the condition of the defendant is
better.) Art. 1192. In case both parties have committed a breach of the obligation, the liability of the first infractor
shall be equitably tempered by the courts. If it cannot be determined which of the parties first violated the
contract, the same shall be deemed extinguished, and each shall bear his own damages.
Leges posteriores priores contrarias abrogant. (Later statutes repeal prior ones which are repugnant thereto.) Art.
7. Laws are repealed only by subsequent ones
Legis interpretation legis vim obtinet. (Judicial interpretation of a statute acquires the force of law.) Art. 8.
Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines.
Les non cogit ad impossibilia. (The law does not require the impossible.) Art. 1348. Impossible things or services
cannot be the object of contracts. 107
Lex prospicit, non respicit. (The law looks forward, not backward.) Art. 4. Laws shall have no retroactive effect,
unless the contrary is provided.
Nel consensui tam contrarium est quam vis atqui meus. (There can be no consent under force or duress.) Non
consentit qui errat. (He who errs does not consent.) Art. 1330. A contract where consent is given through mistake,
violence, intimidation, undue influence, or fraud is voidable.
Nemo dat quod non habet. (No one can transfer a greater right to another than one has.) Art. 1505. Subject to
the provisions of this Title, where goods are sold by a person who is not the owner thereof, and who does not sell
them under authority or with the consent of the owner, the buyer acquires no better title to the goods than the
seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.
Optimus interpres rerum usus. (The best interpreter of the law is usage.) Art. 1376. The usage or custom of the
place shall be borne in mind in the interpretation of the ambiguities of a contract and shall fill the omission of
stipulations which 108 are ordinarily established.
Pacta sunt servanda. (Stipulations of parties must be complied with in good faith.) Art. 1315. Contracts are
perfected by mere consent, and from that moment the parties are bound not only to the fulfillment of what has
been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with
good faith, usage and law.
Partus sequitur ventrem. (Offspring follow the mother.) Art. 442. Natural fruits are the spontaneous products of
the soil, and the young and other products of animals.
Proximus sum egomet mihi. (Charity begins at home.) Art. 294. The claim for support, when proper and two or
more persons are obliged to give it, shall be made in the following order: (1) From the spouse; (2) From the
descendants of the nearest degree; (3) From the ascendants, also of the nearest degree; (4) From the brothers and
sisters.
 Prius in tempore, potior in jure. (First in time, first in right.) Art. 1544. If the same thing should have been sold to
different vendees, the ownership 109 shall be transferred to the person who may have first taken possession
thereof in good faith, if it should be movable property x x x.
Privatum incommodum publico bono pensatur. (The private interests of the individual must give way to the
accommodation of the public.) Art. 435. No person shall be deprived of his property except by competent
authority and for public use and always upon payment of just compensation.
Qui approvat non reprobate. (He who approves or ratifies cannot repudiate.) Art. 1392. Ratification extinguishes
the action to annul a voidable contract.
Qui prius jus suum insina verit praeferetur. (He is preferred whose right has just been recorded.) Art. 1544. x x x
Should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first
recorded it in the Registry of Property. Should there be no inscription, the ownership shall pertain to the person
who in good faith was first in the possession; and, in the absence thereof, to the person who presents the oldest
title, provided there is good faith.
110 Quod ab initio non valet in tractu temporis non convalescit. (That which was originally void, does not by lapse
of time become valid.) Art. 1409. The following contracts are inexistent and void from the beginning x x x These
contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived.
Sic utero tuo ut alienum non laedas. (Use your property as not to injure the rights of others.) Art. 431. The owner
of a thing cannot make use thereof in such manner as to injure the rights of a third person
Ubi jus, ibi remedium. (Where there is a right, there is a remedy for violation thereof.) Art. 32. Any public officer or
employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for
damages.
Vigilantibus et non dormientibus jura subveniunt. (The law aids the vigilant, not those who slumber on their
rights.) Art. 1106. By prescription, one acquires ownership and other real rights through the lapse of time in the
manner and under the conditions laid down by law. In the same way, rights and conditions are lost by prescription.
111 Latin Legal Maxims/Precept Revised Penal Code
Actus non facit reum nisi mens sit rea. (The act does not make a person guilty unless the mind is also guilty.) Art.
12. Circumstances which exempt from criminal liability. — The following are exempt from criminal liability: 4. Any
person who, while performing a lawful act with due care, causes an injury by mere accident without fault or
intention of causing it.
Arma in armatos jura sinunt. (The law permits taking arms against armed persons.) Art. 11. Justifying
circumstances. — The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or
rights, provided that the following circumstances concur; First. Unlawful aggression; Second. Reasonable necessity
of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person
defending himself.
Favorabilia sunt amplianda, odiosa restringenda. (Penal laws which are favorable to the accused are given
retroactive effect.) Art. 22. Retroactive effect of penal laws. — Penal Laws shall have a retroactive effect insofar as
they favor the persons guilty of a felony, who is not a habitual criminal x x x. 112
Furiosus solo furore punitur. (A mad man is punished only by his madness.) Actus invitus, non est meus actus. (An
involuntary act is not one’s act.) Article 12. Circumstances which exempt from criminal liability. — The following
are exempt from criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid
interval. x x x 5. Any person who act under the compulsion of irresistible force.
Nullum crimen, nulla poena sine lege. (There is no crime where there is no law punishing it.) Art. 3. Acts and
omissions punishable by law are felonies x x x.
 Sociis fit culpae qui nocentum sublevat. (He who helps the guilty shares the crime.) Art. 16. Who are criminally
liable. — The following are criminally liable for grave and less grave felonies: 1. Principals. 2. Accomplices. 3.
Accessories. Latin Legal Maxims/Precept 1997 Rules of Civil Procedure
Cujus juris erit accessorium. (He who has jurisdiction of the principal thing has jurisdiction of the accessory also.)
Rule 6, Sec. 7. Compulsory counterclaim. — A compulsory counterclaim is one which, being cognizable by the
regular courts of justice, arises out of or relates to the transaction or occurrence constituting the subject matter of
the opposing 113 party’s claim and does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the
amount and the nature thereof x x x.
Res judicata inter partes jus facit. (A question adjudicated between parties after hearing them makes the law of
that question.)
Stare decisis et non quieta movere. (Follow past precedents and do not disturb what has been settled.)
De similibus idem est judicium. (Concerning similars, the judgment is the same.) Rule 39, Sec. 47. Effect of
judgments or final order x x x (b) In other cases, the judgment or final order is, with respect to the matter directly
adjudged or as to any other matter that could have been missed in relation thereto, conclusive between the
parties and their successors in interest, by title subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same title and in the same capacity x x x. Latin Legal
Maxims/Precept Revised Rules on Evidence
Ei incumbit probation qui dicit, non qui negat. (He who asserts, not he who denies, must prove.) Rule 131, Sec. 1.
Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of 114 evidence required by law.
Non allegata non probate. (That which is not alleged cannot be proved.) Rule 132, Sec. 34. Offer of evidence. —
The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is
offered must be specified.
Qui tace consentire videtur. (Silence means consent.) Rule 130, Sec. 32. Admission by silence. — An act or
declaration made in the presence and within the hearing or observation of a party who does or says nothing when
the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible
for him to do so, may be given in evidence against him.
Res ipsa loquitur. (The thing speaks for itself.) Rule 130, Sec. 1. Object as evidence. — Objects as evidence are
those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court.
Semper praesumitur pro matrimonio. Rule 131, Sec. 3. Disputable presumptions — That a man and (Always
presume marriage.) woman deporting themselves as husband and wife have entered into a lawful contract of
marriage; x x x
Ut res magis valeat quam pereat. (The law should be interpreted to uphold than to destroy it.) Rule 130, Sec. 11.
Instrument construed so as to give effect to all provisions. In the construction of an instrument, where there are
several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. Latin
Legal Maxims/Precept Legal Ethics
Judex non potest injuriam sibi datam punier. (A judge cannot punish an injury to himself.) Rule 137, Sec. 1.
Disqualification of judges. — No judge or judicial officer shall sit in any case in which he, or his wife or child, is
pecuniarily interested

“law is an ordinance of reason ordered towards the common good, promulgated by him who has charge of the
community.” The four magic elements being: (1) reasonable ordinance (rationis ordinatio), (2) for the common
good (bonus communis), (3) promulgated, (4) by legitimate authority.- T. Aquinas
According to WEBER the basic features of law that distinguish it from customs and conventions are:
(1) the duty to comply,
(2) due to external actions or threats,
(3) by individuals tasked to enforce the law.
“Eight Routes of Failure:
F-Failure 1. Failure to publicize or make known to the affected party the rules.
L-Lack 2. The lack of definitive rules or law, so that disputes have to be decided ad hoc.
U-Unclear 3. Unclear or obscure legislation.
R-Retro 4. Retroactive legislation.
C-Contra 5. Contradictions in the law.
D-Demands 6. Demands that are beyond the power of affected parties to observe.
U-Unstable 7. Unstable legislation or frequent changes in the law.
D-Discrepancies 8. Discrepancies between adjudication/administration and legislation.

jural law may be classified into substantive or remedial.

Substantive law establishes rights, duties, and corollary prohibitions.
Remedial or procedural or adjective law prescribes the manner of administering, enforcing, appealing,
amending, and using legal rights and claims.
Public or political law is concerned with the structures of government, the relationship between the individual and
the State
Violation of public order through punishable acts or omissions is under criminal law.
Private law, on one hand, is concerned with the rules governing the relationship of individuals
civil law or the rules of civility such as on property, marriage, succession, contracts, and torts or private wrongs
that result in damages.
If dealing with artificial personalities such as corporations and the management of business, mercantile law
regulates commercial transactions
civil code system refers to a legal system based on coded laws. Laws are codified through parliamentary statutes,
following the tradition of compiling rules such as the Code of Hammurabi or the Babylonian Law Code (c. 1772
B.C.) and the Justinian Code or the Roman Law Code.
common law system is based on case law or judge-made law that relies on precedents set by judges in a court
case
Islamic law or Sharia law (“the way to follow”) is based on the moral precepts of Islam.

Sources of Islamic law:

(1) the Qur’an, or the word of God as given to the prophet Muhammad;
(2) the Sunna, or the sayings and acts of Muhammad according to tradition or hadith;
(3) the judicial consensus of Islamic judges (qadis), following the historical consensus, similar to common law
precedents, of religious scholars (ulama); and
(4) Analogical reasoning,
Crimes are also punishable by multiple lashes, or by application of the principle of “an eye for an eye” (lex
talionis), or by amputating the instrument of criminality, such as the hand in theft.
NOTE: Under a Sharia court, the rules of evidence prioritize oral testimony of at least two witnesses,
preferably by Muslim males. There is no need for a lawyer or a jury. Plaintiffs and defendants represent
themselves. There is no pre-trial, modes of discovery, or cross examination of witnesses. Forensic and
circumstantial evidence are rejected in favor of eyewitnesses.
According to Max Weber there are three ways how authority establishes itself in society:
 charisma- success gives a man an aura of legitimacy
  tradition-is where the authority from a leader, due to his magnanimity or extent of influence in a society,
is passed on to his successors or heirs
 law-Laws are legitimate if they are enacted according to rules of procedure and individual merit.

Sigmund Freud observed that reward and punishment are needed for discipline
contractual obligation is considered void when it has an illicit cause. It is illicit if contrary not just to law, but also to
“morals, good customs, public order or public policy”
Lon Fuller argued that the law has an “internal and external morality.” It cannot be a one-way imposition since
the cooperation of the citizen is needed. The law has been the citizen’s refuge because it is supposed to protect
them from the most perverted regimes, cruelties, and inhumanities.
distinction between secular morality and religious morality
 In states where there is no separation between Church and State the law must reflect what is
considered moral by the established religion. its ultimate basis is the Word of God.
Finnis wrote that there are seven “basic goods” natural to man:
 Life
 Knowledge
 Play
 aesthetic experience
 sociability (friendship)
 practical reasonableness
 religion (transcendence)
secular morality known as “public morals” are considerations of the law. It is a morality not based on religion
but on popular ideals, sources of law, and common aspirations as expressed in policies. Obedience to the law of
the state is itself a principle of secular morality.
“ethics” is used to refer to secular standards of responsibility and accountability specific to professional areas of
practice, such as “the ethics of business.
Justice is “equality in proportion,” to render to each what is due. It is to give what one deserves according to the
same standard, measure, or formula.
Egalitarianism - “all men are born equal” refers to one’s humanity, meaning, we are all equal in terms of being
human, and the rights pertaining to the fact of being human, regardless of status. We belong to the same human
species and whatever race we are from, we can all interbreed.
“entitlement theory,” people are entitled to the things they earned, worked for, or produced. They are also
entitled to bequeath the same to others, such as to their families.
The rights of private ownership:
 A-The right to abuse (jus abutendi)
 U-right to use his property and exclude another from its use (jus utendi),
 H-right to hold possession of the property (jus possidendi)
 E-right to enjoy its fruits (jus fruendi),
 A-right to acquire its accessions (jus accessiones)
 R-right to recover it (jus vindicandi)
 D-right to transfer and even destroy it (jus disponendi)
just price is the price people are prepared to pay, and the buyer will freely accept, given honest information. This
includes a decent profit, but excludes deception and excessive profiteering.
e laissez faire, laissez passer (“leave the individual alone, let commodities circulate freely”)
“homestead principle” or “labor theory of property,” where it is by the exertion of labor upon natural resources
that things become one’s property. It is where one is entitled to property not to the extent of what his money can
buy, but as much “as man tills, plants, improves, cultivates, and can use the product of, so much is his property.
freedom is of two kinds:
 Negative freedom, which is the absence of external constraints. Negative liberty is the absence of
coercive and preventive threats
 positive freedom, which is self-control or rational mastery over one’s appetites. positive liberty is the
ability of an individual to be his own master and to do what he thinks best.
“your life, your choice.”-A person has complete dominion over what he wills for his body, his life, and his property.
Authentic freedom is the capacity to enjoy the good life, not the opportunity to do evil. The fact that you can
choose to harm yourself means you cannot exercise right judgment and you must be subject to the control of
others.
two main causes of how an act becomes involuntary:
 ignorance - is lack of knowledge or awareness of what one is doing or not doing
 compulsion -one is forced to do something he would not have done, such as when a gun is pointed into
one’s head
Determinism” is the theory that all events are caused by antecedent conditions and people do not have much free
will, but are like complex machines subject to various external and internal stimuli.
Legal Theory is an inquiry into the nature of law.
Natural law theory or 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 based on a “natural order,” which we can discover through our common human reason and validated by
human experience.
Critical Legal Theory (Roberto Mangabeira Unger) 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.”
The Once-Upon-a-Time Approach-The law is not simply made; it is in the making. It rolls a story struck in real
events.
The Functional or Sociological Approach-The law is both a means of social control and social advancement.
The Economic Approach- Law appropriately takes its cue from economics and plays a larger role in modern legal
systems.
Forms-and-Fundamentals Approach- Legal formalism or conceptualism holds that the law is a strict science
governed by formal axioms, legal principles, and rules of logic.
morals are not merely a matter of private judgment; society should be in a position to enforce its moral standards
as a means of self-preservation, “whatever its morality happens to be.”

Robert P. George acknowledges that laws cannot make men moral; laws can only succeed in
commanding outward conformity to moral rules but cannot compel internal acts of reason. George
contends that laws can be utilized to make men moral by:
(1) preventing further self-corruption
(2) preventing bad example
(3) helping to preserve the moral ecology and
(4) educating people about right and wrong.
Natural law theory developments:
 Classical Phase-human reason is common among men and along with this, the common precepts of right
law and equity
  Scholastic Phase that taught that natural law is man’s participation with eternal law.
 Enlightenment or Modern Phase that used natural law as a basis for natural rights and duties.
 International Law Phase in reference to general principles of law and international rights, a common law
for all nations of men.
The Republic envisions a Statist type of regime ruled by a benevolent dictator — an educated philosopher-king.
For Plato, the State is hierarchically composed of the noble ruler (its head), the warrior (the heart) and the
workers (the stomach). The best state is run by the wisest. An enlightened leadership, not laws, is what is
necessary. The dictatorship of the philosopher is justified since not everyone can be expected to be reasonable
and capable of self-governance.
Aristotle-is also regarded as the Father of Natural Law
Aristotle said that man, being a social animal, needs to live in a community. Man’s first association is the family,
then the neighborhood village, then the polis or city-state. All these institutions are natural since no man is self-
sufficient. Man is given the faculty of language because he needs to socialize effectively.
six types of constitutions:
 monarchy (one-man rule)
 aristocracy (rule of few good men)
 polity (rule of men with equal merits}-Polity or democracy is the most stable since monarchy risks the
intemperance of its leader, while rivalries and infighting hound an aristocracy
 tyranny
 oligarchy
 radical democracy
Stoics believed that there is a “true law” discoverable by “right reason” and shared by all persons. And that one
can find happiness in doing what is good.
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.
NOTE: The difference between positivist theory and natural law theory is that borne from deliberate positive acts
of rulers and subjects, whereas for the latter, rights are natural and inherent.
Hugo Grotius - “Father of International Law.”-
made natural law the basis for a “law of nations.”
-man desires to live with his own kind, in a society that is peaceful and organized.
pacta sunt servanda- It is the law of nature to abide by pacts mutually consented and entered into in good faith,
and thus, among states, treaties must similarly be honored on the basis that humanity have things in common that
makes citizens of all nations equal.
AQUINAS’ four kinds of laws in his natural law theory:
 eternal law- is that law which is a “dictate” of God’s reason.
 natural law- This consists of principles of eternal law which are specific to human beings as rational
creatures.
Aquinas explained that the precepts of natural law refer to five natural inclinations:
o to do good and avoid evil.
o sustain our being towards self-preservation.
o to perpetuate ourselves
o to live in community with other men
o to use our reason and will
  human laws (Aquinas’ positive law)- human reason needs to proceed to the more particular
determinations to declare what is required in particular cases considering society’s specific circumstances.
This determinations are called human laws.
 divine law -which is given by God.
Four reasons why divine law is necessary to direct human life:
o man is directed to proper actions towards his proper end.
o because of uncertainty in human judgment, different people form different judgments
on human acts, resulting in different and even contrary laws.
o human law can only judge the external actions of persons.
o because human law cannot punish or forbid all evils divine law is needed.
Constitutions enumerate such rights and provide against their deprivation or infringement, but do not create
them. It is supposed that all power, all rights, and all authority are vested in the people before they form or adopt
a constitution.
natural rights are those rights that “appertain to man in right of his existence.” These were fundamental rights
endowed by God upon human beings.
civil rights are those that “appertain to man in right of his being a member of society.” These rights, however, are
derived from the natural rights of individuals.
inalienable Rights-Life, Liberty, and the Pursuit of Happiness
principle of separation of powers- government functions are divulged and apportioned among the three
departments — legislative, executive, and judicial — and within the province of each one of them no
encroachments are allowed without violating the tripartite division established by the Constitution.
police power (according to Blackstone) “the due regulation and domestic order of the kingdom, whereby the
inhabitants of a state, like members of a well-governed family, are bound to conform their general behavior to the
rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their
respective stations.
Allegiance- is the tie or ligament which binds the subject to the King, in return for that protection which the King
affords the subject
Justinian Code’s four books:
 Codex Constitutionum or the code of ordinances and decrees issued by emperors;
 Digest or Pandects that summarizes the common law to guide judges;
 the Institutes or the introduction to the law for law students;
 the Novellae Constitutiones Post Codicem or the Novels, referring to the supplementary new laws passed
by Emperor Justinian

Classsifications of Roman Law:

 Public law (jus publicum) regulates the government
 private law (jus privatum) determines the rights and duties of individuals.
-is further divided into
Book I on the Law of Persons (De Jure Personarum),
Book II on the Law of Things (De Rerum Divisione)
Books III and IV on the Law of Actions (De Actionibus).
The Kinds of Ownership according to the roman law:
(1) private ownership, acquired by various titles
(2) public ownership, which is for common use
(3) corporate ownership, belonging to a society or a corporation.
(4) res nullius, belonging to no one.
Usufruct is the right of using and taking the fruits of another’s property. A person who has a usufruct on land does
not become the owner of the fruits that grow thereon until he has himself gathered them.
Occupation and Possession- If a man takes possession of a property abandoned by its previous owner, he at once
becomes the new owner.
Donation- Gifts are of two kinds; those made in contemplation of death, and those not so made. In the first, if the
donor survives the donee, or should desire to revoke the gift, the gift should be restored to the donor. A donor can
revoke a gift on proof of ingratitude on the part of the recipient.
Obligation- is a legal bond, with which we are bound to perform an act. It has four kinds: contractual, quasi-
contractual, delictal, and quasi-delictal.
stipulation is conditional when performance is made to depend on some uncertain event in the future, so that it
becomes actionable only on something done or omitted.
contract of purchase and sale is complete when the price is agreed upon, and even before the price or any earnest
is paid.
Quasi-contracts-Obligations that do not originate in a contract and do not arise from a delict such as when a man
has managed the business of another during the latter’s absence.
Delicts and Quasi-Delicts-Obligations resulting from a delict itself include theft, robbery, wrongful damage, or
injury.
action is the right of suing before a judge for what is due. It is of two kinds: real and personal
Interdicts are divided into abstention, restitution, and production. abstention first forbids the doing of some act —
for instance, the violent ejection of a bona fide possessor. restitution refers to restitution of property. Production
refers to orders to produce persons or property.
marriage as a “special contract of permanent union between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life”.
General justice refers to legal justice that serves the community as it distributes the common good.
doctrine of reasonable classification under the Equal Protection clause- Rendering justice does not necessarily
mean same treatment, but equitable treatment on what the other deserves by natural or contractual/positive
right; that is, rendering to each that “which is due to him according to equality of proportion.
Restitution is an act of commutative justice, where equality is reestablished by giving back what is taken.
Retribution through exemplary punishment must restore that order. A punishment must consist of something
perceived to be “evil” by the wrongdoer by depriving him of a good, so that potential wrongdoers will refrain from
breaking the law if only to avoid the penalty.
Causes of involuntariness of actions according to Aquinas:
 Violence-one is externally compelled contrary to one’s will.
 Fear -one does an act not because one wills it, but because one wants to avoid the evil feared similarly
makes irresistible force and uncontrollable fear as exempting circumstances for criminal liability.
Pleasure and Love Pleasure is natural and good, but it is not the highest good. Love is the fullest realization of the
possibilities of man.
four political models of church and state relations:
 sacred heteronomy-spiritual concerns are perceived as superior to the material, and therefore, religion
rules all affairs of life.
 first profane autonomy-l gives the government power over the sacred.
 second profane autonomy-. There is a demarcation between Church and State, geared towards
independent co-existence.
 theandric ontonomy- weaves together the political and the spiritual fabric of society.
Free Exercise Clause- prohibits government from inhibiting religious beliefs with penalties for religious beliefs and
practice
Establishment Clause prohibits government from inhibiting religious belief with rewards for religious beliefs and
practices.
strict neutrality view believes that the “wall of separation” does not require the state to be their adversary.
Rather, the state must be neutral in its relations with groups of religious believers and non-believers.
Strict Separation t believes that the Establishment Clause was meant to protect the state from the church, and the
state’s hostility towards religion allows no interaction between the two.
theory of benevolent neutrality or accommodation the“wall of separation” is meant to protect the church from
the state.
compelling state interest test- serves the purpose of revering religious liberty while at the same time affording
protection to the paramount interests of the state.
Lex mercatoria was a body of rules and principles laid down by medieval merchants to regulate their deals. It was
administered by special commercial courts along main trade routes, also called as “fair courts.”
“writing obligatory” that we now refer to as bills of exchange, checks, and promissory notes. This way, creditors
could easily transfer debts without complex forms of proof, by promising indebtedness to the bearer.
Lord Mansfield’s Rule- “the declarations of a father or mother cannot be admitted to bastardize the issue born
after marriage.” Today, this has meant the presumption of a husband’s paternity of a child born within a marriage.
mercantile law, unlike other fields of law, is customary in nature and develops with the state of the economy,
market conditions, and commercial technology. It may not therefore be wise to rest them on black-letter law such
as the Constitution, but must be free to follow the “best practices” of the trade.
Bacon introduced his inductive method that requires:
 the accumulation of a store of empirical observations in a tabulation or repository.
 inductively inferring lesser axioms
 then inductively inferring middle axioms
 and then proposing the most general of notions.
Bacon’s four “idols”:
 the “idols of the tribe,” referring to illusions of appearances and reliance on our primitive senses
 the “idols of the cave,” referring to generalization of our limited “caved” experience
 the “idols of the market,” or the imperfections coming from the choice of language and communication
 the “idols of the theater,” or the flaws of philosophies, theories, and speculations.
“Hume’s fork,” is useful in being skeptical of proffered evidence. In court, lawyers and investigators try to establish
the cause and effect of events and how things must have happened based on evidence from a crime scene.
Social Contract theorists y believe that the fundamentals of society were brought about by conventions and
agreements, tacit or explicit, also called as the “social contract.”
Machiavelli’s 7 tips on how to rule:
 the ruler cannot be good always, he must at least pretend
 there are two ways of fighting: one by law, another by force
 the leader should himself shower the favors but should delegate the punishments.
 it is good to be both loved and feared.
 , punishments should be done all at once so that seldom felt will be less remembered
 , a ruler must be shrewd and swift to match the inconsistency of the people and the political environment.
 the end justifies the means (If the ruler succeeds, the people are his. If he fails, they turn against him)
Machiavelli pointed that although a ruler can take advantage of religion, the contrary would also be true: he would
be at a loss without it. Religion is useful, he said, “in animating the people, in keeping men good, and in shaming
the wicked.”
Thomas More was among the first to propose, in an age of supreme monarchs, that the Sovereign must be elected
by the people so that the electorate can check and terminate their rulers’ regime for abuses.
“pater familias” or due care of a good father of the family.
Social contract is a pact between free men for the public good. Law’s hold must therefore be limited to public
affairs, and beyond this, people should be free to be themselves.
Locke, like Baron de Montesquieu, proposed that the legislative, executive, and federative powers must be
separated in a “tripartite system” (Montesquieu proposed the Judicial, rather than the Federative, as the third
branch of government) so that no government body could be all-powerful.
“doctrine of non-delegation.”- Sovereign power cannot be transferred to those whom the people did not entrust
this power.
“man was born free but everywhere he is in chains.” - By this, Rousseau meant that man is fundamentally good,
but society can bind and condemn people in unjust ways, yet society itself can make man free again.
Rousseau’s Social Contract, each individual is considered part of the whole society, the collective body. It is a
moral body where citizens share in the sovereign power. People join society not to abdicate their natural liberty
but for improvement and sophistication.
general will is not the will of all or the will of the majority, but the common interest expressed through laws. Since
laws were made with the participation of the people, these are binding to everyone.
“Harm Principle.” Man is free to pursue his happiness as long as he does not harm others. He may harm himself in
the process but not others.
Freedom of action - one’s actions can be interfered with if a person becomes a nuisance to others
freedom of thought he is free to believe at his own cost whatever he wants to believe.
Utilitarianism is the philosophy of pursuing pleasure and avoiding pain, for “the greatest happiness of the greatest
number.”
duty “as a thing which may be exacted from a person, as one exacts a debt.”
“the right to be let alone- ” includes individualist choice, free speech, religious, racial, and political tolerance,
privacy rights, reproductive rights, and personal space. State interference should be minimal and infrequent.
When does a revolution become a right? Thoreau said it is “the right to refuse allegiance to, and to resist, the
government, when its tyranny or its inefficiency are great and unendurable.” For instance, when “oppression and
robbery are organized,” when there is slavery, and when the “country is unjustly overrun and conquered by a
foreign army.”
To successfully resist the government, the individual must make himself self-sufficient and less dependent on
government provisions. The person must be able to live independently, make a new start, and discover his natural
goodness.
“Socialism is a return to social ownership through nationalization of economic resources like land, raw materials,
factories, industries.
Communism - common ownership would obliterate entitlements and difference of classes and there would
eventually be no need for the State or for laws as the people imbibe the rule that “from each according to his
ability, to each according to his needs”.
“social justice, neither communism, nor despotism, nor atomism nor anarchy, but the humanization of laws and
the equalization of social and economic forces by the State so that justice in its rational and objectively secular
conception may at least be approximated.
6. Thomas Aquinas' concept of juristic or secular justice accentuates the fundamental idea of
consideration for the rights (ius) of others for these are what are due them and the basic principle of
equality of all persons in their relationship with one another.
5. Volition or will is the cognitive process by which an individual decides on and commits to a
particular course of action. He defines beings capable of cognition as those capable of receiving
information about the world

2. The act of the agent is considered that of the principal itself. Qui per alium facit per seipsum facere
videtur. "He who does a thing by an agent is considered as doing it himself."