PHILOSOPHY OF LAW REVIEWER – PRELIM
Definition:
"Law seeks to be the discovery of reality."
Philosophy – is the study of the universe that seeks to know the truth and rational
"Law is public opinion"
explanation of anything.
"The end of law is to make completely good men"
Philosophy of Law – branch of practical philosophy which deals with the wisdom of
Doctrine A platonic philosopher is one who knows true reality and
law. It studies the nature of law and all the principles that govern its formulation.
the right thing to do.
Law – rule of conduct formulated and made obligatory by legitimate power of the
First to exhibit the general science of law.
state.
State - dominates human activity in all of its manifestation;
When do we resort to force?
limitless; man on large scale; most perfect unit
Resort to force if the law has failed to persuade people.
Criticism *Plato took the wildest possible view of law.
History
School Classical Natural Law
Proponen
Legal philosophy started with Socrates, Plato and Aristotle (SPA). t Aristotle
"Law should be reason without appettite"
PHILOSOPHICAL SCHOOLS "Law gives force to legal contracts"
"The highest good is happiness and it should be exercised
School Historical School in accordance to virtue"
Proponen Aristotle differentiated constitution from laws
t Friedrich Carl von Savigny Doctrine Theory of Legislation: law should be made by people who
"Law is related with the being ang character of the has theoretical knowledge and practical experience, eg.
people." (people centered) politicians
Doctrine "Law is parallel to language and custom because there is
no moment of absolute rest" Democracy – final appeal is reason. Thus, law is the
"Moving force is the law of inward necessity" common agreement of the state.
*Juristic Pessimism - law must come from ones instinct. Criticism
Criticism *Law is not merely a manifestation of the past but a
preparation of the future School De Legibus
Proponen
School Platonic School t Cicero
Proponen "Law is right reason applied to comman and prohibition"
t Plato 3 kinds of laws in the world:
1. Lex Caelestis - it is true law; heavenly law and is the
Doctrine right reason.
2. Lex Naturae - law that distinguishes the just and unjust.
Punishes the wicked and protects the good.
3. Lex Vulgus - positive law; crowd's definition of law.
Criticism
School Metaphysic of Morals
Proponen Immanuel Kant
t
"Morals is validated if it can be established and "Laws proper are commands, laws improper are not
comprehended by society as necessary" commands"
"Positive law is codified while moral laws are not codified "Law is a rule laid down for the guidance of an intelligent
but based on experience" being by an intelligent being having power over him"
External Law - obligatory and is capable of legislation 4 divisions of law:
(objective) 1. Divine Law
Maxims - subjective interpretation of an act (subjective) 2. Positive Law
Doctrine
Categorical Imperative - where the maxim is validated in 3. Positive Moral Law
accordance to a Universal Law. 4. Law Metaphorical or Figurative
Science of Right - its end is principle of all the laws which is Styled Laws - laws set by opinion
possible to promulgate by external legislation
Science of Ethics - based on the Divine Law
Universal Principle of Right - every right action should co-
exist with other right action according to a Universal Law. Doctrine Positive Law - laws existing by position
*The metaphysics of morals was better illustrated by
Rudolph Stammler - notion of community is inherent in Difference of Command and Desire: Pain or evil inflicted
Criticism
law. Law is distinct from natural world and that law is a during disregard of wish
complete and exclusive system.
When there is increase in sanction, there is increase in
School Philosophy of Right obedience
Proponen
t Georg Hegel Effectivity of Laws:
"The dialectical method - conflict between what is ought Sanction - obligation or duty
and what is is resolved by the use of thought" Reward - right
Doctrine Thesis - existent
Antithesis - conflict Concept of Superiority:
Synthesis - resolution May come from either excellence or might
Criticism *Too optimistic
Science of Legislation - positive law is
Science of Jurisprudence - positve law ought to be
*Law that does not exist as a perfectly proportioned body
School Positivist School - Imperative School / Analytical School
of rules.
Proponen *It is difficult for schools to resist setting up an ideal to be
t John Austin Criticism
a basis of constructive criticism of law.
*Austin made that law ought to be studied separate from
morals.
School Positivist School - Pure Theory of Law
Proponen
t Hans Kelsen
"Relativity of Moral Value"
Social Norm - norm that orders certain behavior of men
toward other men; these are dynamic
Moral Minimum - agreement on an absolute morality such
as peace.
Doctrine Why is there a necessity to separate Morality and Law?
In order to establish an absolutely moral order and only
one absolute justice.
In order to have a basis on the validity of a positive legal
order.
Justification of Law through Morals
Is possible only if a contrast exists between the moral and
legal norm.
*Kelsen based his work on Austin but did not consider law
as a command of the sovereign.
Criticism
*Kelsen's method constrains us and does not give us true
picture of the law
School Positvist School - Utilitarianism
Proponen
t Jeremy Bentham
"Utility is a property in any object that produces good or
pleasure"
Doctrine "Greatest good or happiness for the greatest number"
"Nature has placed mankind under the governance of two
sovereign masters: PLEASURE AND PAIN"
Criticism
