NATURE AND DEFINITION OF LAW

LEGAL PHILOSOPHY
1-A: TALATALA, TEMANIL, UY

WHAT IS LAW?

GENERAL IDEAS OF LAW

Law is one of the institutions which are

central to the social nature of man and without which he would be a very different creature. Civilizing forces in human society and the development of the system of legal rules has shaped the growth of civilization. The highest perfection of society is found in the union of order and anarchy.

LAW IN GENERAL
any rule of action or order of sequence from

which any beings whatsoever either will not, or cannot, or ought not to deviate

RULE OF ACTION

A rule of action is any warrant, instruction,

measure, regulation or decision governing any act, conduct, transaction, or proceeding, including its consequences

IMPORTANT POINTS IN RULES OF ACTION

Conduct is included in the definition
Even though rules of action have been and are

being violated they cannot be broken

ORDERS OF SEQUENCE
an order of sequence is any system of

arrangement or consecutiveness, or any uniformity of a given group of phenomena while this category is mainly concerned with physical nature, it cannot be gainsaid that an order of sequence is also law, such that any deviation there from results in inconvenience, damage or injury

NATURE OF LAW

EXPRESSION OF IDEAS IN PHILOSOPHY

EMPIRICAL PROPOSITION
Based on sense experience

NORMATIVE PROPOSITION
Functions as guide or norm of human conduct

The most prominent general feature of law is that its existence means that certain kinds of human conduct are no longer optional, but in some sense obligatory

Purpose of law: to regulate behaviour, to prescribe what must be done and to determine that in regard to which man must forbear (Aquinas)

Other requirements: (1) an order of reason (2) promulgated (3) by one who has authority over the community (4) for the common good

IS LAW NECESSARY?

THE NATURE OF MAN

Man is by nature evil
Such nature must be

Man is by nature good

People who believe in this

curbed, otherwise it will lead to total destruction of man Law is the indispensible restraint upon the forces of evil Anarchy or the absence of law is the supreme horror to be warded of

nature of man seek to find the sources of the ills of mans present condition
Man is good, but due to sin,

corruption or some internal weakness, mans original nature had become distorted and thus required for its control the rigors of a primitive system of law

LAW AND FORCES OF EVIL

Whether mans nature is good or evil, he still

needs laws.
Mans nature is evil thus no social progress could

be attained without restraints of penal law. Man is good but due to sin, corruption or some internal weakness, mans original and true nature had become distorted and thus required for its control the rigors of a primitive system of law

LAW AND FREEDOM

Without the recognition of some authority whose decrees and sentences determine the structure of order in the world there can be no organized society and therefore the authority of divine rule makes possible the functioning of the universe as a social whole. But without the element of force to ensure obedience to the divine decree the universe would never attain the role of statehood.

JUSTICE
The notion of justice is more ancient than that of

law. The concept of justice is based upon and is equated with moral rightness (ethics), rationality, law, natural law, fairness, righteousness, equality, goodness, and equity. Nonetheless, views of what constitutes justice vary from society to society, person to person, from time to time and from place to place. As a notion it has been subject to various philosophical, legal, and theological reflections and debate throughout the history.

LAW AND JUSTICE

The telos or the end of law was justice however, some legal orders perpetrate injustice. This is the reason why Justice Justo Torres said that The application of law depends on the extent of its justice. The application of the law by the courts in order to achieve justice cannot consist in an idolatry of the written text, or better an ideological adherence to a given reading the accepted reading, and what compels a reading, a deconstruction of the accepted reading is the demand for the more, the better, the further, and the discontent with what follows from the hegemony of the usual.

FORMS OF LAW
written law - refers to the law prescribed by a body having law making power or the legislature, and is so called because the permanent memorial of it is in writing code - a statutory enactment which assumes to put the law of any particular subject in a complete written form, or which assumes to embody the entire law of the jurisdiction in orderly shape. A form of statutory law is that of the code, a textual embodiment of the law on a given subject or of all the law unwritten or common law - the law declared by the judges in the decision of litigated cases which no written law has covered and is derived from the common ideas of right and expediency. The early English writers defined the common law as that law which had been in existence for so long that the memory of man runneth not to the contrary

HIERARCHY OF LAW