PHILOSOPHY OF LAW (FR. FERRER, S.J.

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1C BAQUILOD CASTAÑEDA GAITE MURAO

PREFACE IS LAW NECESSARY? A DIALOGUE BETWEEN TWO LEGAL

● Law is one of the institutions that allows man to live in PHILOSOPHERS (BY SOMMER)
civilized society. ● Aris and Bato, two legal philosophers who seem to be
○ Growth of civilization has generally been linked with: representations of Aristotle and Plato
■ gradual development of a system of legal ● “What would life be like without law?” → “Is law
rules necessary?”
■ machinery for regular and effective ○ Life without any law would be unrealistic and
enforcement exceedingly difficult.
● Laws do not exist in a vacuum but are found together with ■ Man needs law to live in society.
moral codes of differing complexity or definiteness. ■ Life would be “solitary, poor, nasty, brutish
○ There is tension between law and moral codes. and short.” - Thomas Hobbes
○ The belief in a Moral Law has an impact on how man ○ Potshots against Lloyd’s approach:
sees actual law prevailing in his society. ■ Armchair philosophy - merely theoretical and
■ Moral Law is a higher law by which mere speculative ideas which do not deal with
man-made laws can be judged realities and facts
■ Higher laws can override or nullify certain ■ Overstating the human nature argument - not
human laws in history. all men are prone to violence and theft
● The most vital issue of the modern state is the freedom of ● Human nature argument supposes
the citizen and its preservation. that all people are static in nature.
○ Relationship between law and liberty is a close one: ○ Discussion of representative laws leads to a
either used for tyranny or gives effect to freedoms classification of laws:
● Functioning of law has been closely associated with the idea ■ Truly necessary laws (indispensable laws):
of a sovereign state. against theft, violence and potential
● Social sciences hold the key to shedding light on the issues wrongdoers, guarantees private ownership
of legal institutions and rendering modern solutions. and compensation, redress of harm or broken
● The nature of the judicial process must be studied to agreements
understand legal reasoning and development.

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■ Improves the quality of life in society ■ Forms one’s outlook about the world, upon
(necessary / useful laws): health, education, man’s relation to society and the world
public safety ■ Law has an ideological character
● Without these laws, life would be ○ Two views on the nature of Man
wasteful and confusing. ■ Punitive view
■ Laws with debatable ends, not necessary ● Man as “demon,” intrinsically evil
(convenient laws): religion, morality, ● Law as indispensable restraint; society
convenience impossible without law
○ The extent of man’s freedom determines the quality ● Punishment, not rehabilitation
of his life in society. - John Stuart Mills ■ Positivist view
○ Law facilitates efficient social change. ● Man as “angel,” intrinsically good
○ Men learned in law assist the layman in knowing and ● Looks back to a Golden Age of
applying such laws. primeval innocence and simplicity
○ It is not needed that laws are true, but they can stand ● Defects arise from problems in
because they are needed. society, especially law and
government
CHAPTER 1: IS LAW NECESSARY? ● Rehabilitation rather than punishment
● Historically, law has been considered unnecessary by ○ The focus of current legal systems is law reform
ideologues and religious institutions rather than eliminating it completely.
○ In every day and age, certain groups feel a certain ● Examples of the two views of human nature
unease when it comes to authority while claiming that
their own denomination points to a happier life
○ However, they are not usually able to prove that their
doctrines are plausible
● The Nature of Man
○ Ideology

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Type of Philosopher Stance Attributable Passage

1. Rosseau Occidental NO Harkening back to a Golden Age of idyllic primitivism

2. Legists Oriental YES Good ways of man attributable to teaching of rituals and
restraints of penal laws

3. Shastra Oriental YES Men are covetous and passionate by nature. Without
laws, the world would be a devil’s workshop which
followed the logic of fish (rule of the stronger)

4. Bodin Occidental YES Man’s original state is that of disorder and violence

5. Hobbes Occidental YES State of perpetual warfare, “nasty, short, brutish” life

6. Hume Occidental YES Without law, government and coercion, human society
could not exist

7. Machiavelli Occidental YES Men are naturally bad and will not honor promises

8. Ovid Occidental NO Golden Age where Man knew right and wrong without
need of laws (from the Metamorphoses)

9. Seneca Occidental QUALIFIED NO Primitive man was happy and ruled by the best and
wisest rulers. However, the happy society was rent
asunder by avarice / greed.

10. Augustine Christian Church Father QUALIFIED YES State law and coercion are not sinful but part of the
divine plan in order to mitigate sin. However, in the
Civitas Dei, or City of God / a mystical body, justice will
rule. Thus, no more need for human laws.

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11. Aristotle Occidental YES Man has aggressive drives curbed by laws.

12. St. Thomas Aquinas Christian Church Father QUALIFIED YES State is not a necessary evil but a natural foundation for
human welfare. Law is a guide for man’s good / social
impulses towards the realization of his goals.

13. Plato Occidental QUALIFIED NO Rational harmony ruled over by benevolent philosopher-
kings rather than law. Later on, he would recant these
statements and agree that laws are necessary in The
Laws.

14. Adam Smith Modern-Day/ Anarchist QUALIFIED NO Laissez-faire economics, where government and law
stifled the natural development of society; however, laws
protecting property are needed for an efficient free
market.

15. Godwin Modern-Day / Anarchist NO Evils of society are not from man’s sinful nature but from
the effects of oppressive human institutions. Moral and
social norms rather than coercion.

16. Bakunin and Kropotkin Modern-Day / Anarchist NO The state, law, coercion and private property were the
enemies of human happiness and welfare.

17. Tolstoy Modern-Day / Anarchist QUALIFIED NO Anarchy based on early Christian communities, non-
violence and renunciation of private property

Anecdote 1: The Stolen Waistcoat

All have an equal right to anyone’s property. The colony
did not survive.

Anecdote 2: Landownership
A man with a title appears. The colony is sent out and
breaks up.

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18. Karl Marx Modern-Day / Anarchist QUALIFIED NO Law is a coercive system devised to maintain the
privileges of the ruling class. However, creating a
classless society will need an interim period where there
is total state control over property. Marxism then tended
towards coercion rather than abolition of law and state
control.

19. Elliot Smith Modern-Day / Anarchist NO Man is whole, kind and well-intentioned. Civilization
creates artificial aims which sow discord and envy.

20. Herbert Read Modern-Day / Anarchist QUALIFIED NO Man has always formed groups for aid and needs,
however there needs to be harmonious interrelation
between and among groups. Anarchists are concerned
with such harmony and removing the need for
hierarchies / rulers, not a society without order. Two
ways of promoting harmony:

Elimination of economic motives.

Matters to be solved by common sense and innate good

will of people

*Only general rules and norms are needed but coercive

apparatus of general control must be absent.

21. Sigmund Freud Modern-Day / Anarchist YES Man is not harmless or gentle. Aggressive drives can be
suppressed but not totally eliminated. Living among men
requires a repression of base instincts.

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CHAPTER 2: LAW AND FORCE ■ Enlil

● God of the storm
● Power of compulsion, god of coercion
A F ● Executes the sentences of the gods
and leads them in war
○ Myths reflect fundamental human attitudes and
purposes
De facto ■ Humans need order
De jure AF F-A=Law+Order
A-F=Law+Order ■ Order demands two elements: authority and
force
■ Lack of authority does not allow public order
to flourish
Rule of law
A+F=Law +Order ■ Lack of force disallows the universe to enter
F A statehood
■ Order of the universe reflected
Mesopotamian society
● Myth of Anu and Enlil ■ Myths gave a cosmological foundation to link
○ Two gods singled out in reverence legitimate authority with force on Earth
■ Anu ■ The idea of gods using force to impose their
● God of the sky authority is a common feature in less
● Issued decrees which commanded sophisticated stages of religion
obedience by the fact of having ● Authority
emanated from divine authority ○ Law requires obedience but not just simple
● Obedience as necessity, however obedience.
there is no guarantee of automatic ■ Not just willing or unwilling compliance
obedience ○ The notion of authority entails that some person is
● Symbol of authority entitled to require obedience of others regardless

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of whether the particular order of rule is acceptable development of possibilities in social

or not organizations
■ It may be a collective organization, not a ■ Typological / classificatory, rather than
person. developmental
■ Peculiar authority or mystique surrounding ■ Simplifications in which sociological
the person / institution investigation can be conducted
■ Inspires a feeling of legitimate subordination ■ Societies can have characteristics of one or
○ What is the source of obligation which is apparently more of these “ideal types”
imposed or assumed to be imposed on the subject ■ Forms of authority or legitimate
party? domination
■ Preliminary answer: moral obligation. There ● Charismatic
is a connection between legitimate authority ○ Charisma – Greek for “grace”
and moral obligation. It imposes a rule which ○ Personal ascendancy which
calls for voluntary adherence by virtue of an individual may acquire in a
inherent rightness. Moral duty to obey the law particular society which
because the law represents legitimate
authority. confers an indisputable aura of
● Problem: Carrying the argument too legitimacy over all his acts
far may lead to erroneous belief that ○ Prototypes: Julius Caesar,
legitimacy and morality can be Alexander the Great,
equated. E.g. divine right of kings Napoleon, Hitler, Stalin,
● Rebellion: discrediting of leaders as Mussolini
immoral; establishment of a social ● Traditional Domination
contract ○ While charismatic leadership
○ Max Weber’s ideal types lies on a single person, his
■ Not a historical evaluation of societies or a death does not necessarily
Platonic ideal but a representation of full extinguish charisma

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○ Authority derived from the ○ Legal domination, is different,

personality of a leader may however, because it is
pass on to an attenuated form impersonal and legalistic.
(e.g. descendants of a royal Institutional character of
line, from Jesus’ apostles to authority has displaced the
the Catholic Church) personal one.
○ Institutionalization of practices, ○ Modern democratic state has
continuity largely abandoned charismatic
○ Mass traditional customs that leadership in favor of
are binding government having a
○ Restricts the freedom of the monopoly of authority.
actual king in office ○ This belief in legitimacy is one
○ “The king under the God and that the modern state requires
Law” (Bracton) to exist. It is a circular
● Legal Domination argument: laws are legitimate
○ A more developed form of when enacted, enactment is
traditional domination legitimate if it conforms to
○ Misleading term in the sense rules that prescribe
that it suggests that law only procedures to be followed.
arises in this type of authority ■ Necessary legal argument / fiction in order to
○ Charismatic leadership also assure a functional society.
may have rules (e.g. ○ Authority rests firmly in belief in its legitimacy.
Justinian’s codification of ● Force
Roman Law) ○ Societies may exist with no authority but ruled solely
○ Traditional domination have by force without descending into anarchy.
rules, but they are customary ○ However, the state of war of upheaval does not
rather than legislative. persuade one to treat the law as force incarnate

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○ Coercion seems to be necessary and is personified ■ Law can exist in its own right regardless if
by important institutions and persons force is used
○ Moral arguments against force ○ Force in International Law
■ Force / violence is wrong in itself and a law ■ Force is a less pronounced practice in
that ultimately rests on force offends morality international law
■ Force is the very negation of law and its use ■ Laws are not enforceable by coercion
indicates the breakdown of the rule of law because there is a lack of regular
■ Problem: enforcement
● Moralists only see moral law as the ■ Efforts for enforcement and coercion are
only law sometimes frowned upon on the international
● Lack of establishment that morality scale (Suez, Belgian Congo, Nicaragua)
excludes coercion ○ Legal Theorists and Force
● It must be proven that law has an ■ Anti-coercionist position: Law can only be
actual relationship with morality described in terms of authority
○ Another argument against force stems from a ■ A comprehensive conception of law must
misunderstanding of the operation of law recognize the interplay between authority and
■ Force is only incidental procedure, not force
necessarily essential to the existence of the ■ Law is a highly flexible conception
law ■ Coercion is not an “ideal” type or an
■ Social contract as a necessary legal fiction oversimplification, however, categorizations
● People obey because of consent, not are needed for study
coercion ■ “Ideal types” are not seen in reality, but only
● Replaced by universal suffrage where in a Utopia as a limiting concept.
individuals can adhere to the ■ There are infinite gradations of force, from
operative system of government blood-feud to contempt of court
■ Elimination of coercion as an element of law ■ Legal Theory requires a dynamic rather than
and replacing it with voluntary consent / a static approach to force in law.
acquiescence ○ Can We Dispense with Force?

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■ Human society would not have flourished if ■ Only certain individual persons and
not for a measure of organized coercion institutions have such powers (e.g. the
■ Aristotle: Man is a rational, political animal President, police, military-industrial complex)
but he has aggressive drives which must be ○ The use of force requires that certain procedures
repressed to attain social discipline. and standards are met to safeguard the people.
■ Freud: Aggressive drives can be ○ Not all rules should have penal consequences,
suppressed but not totally eliminated. Living considering the tendency of modern society towards
among men requires a repression of base defining duties without corresponding sanctions.
instincts. Man cannot get rid of these drives
but it is unlikely. Instead, societies are built CHAPTER 3: LAW AND MORALS
on coercion and instinctual renunciation. ● Relation between law and morals is far from simple
There is a connection between coercion and ● Law and Religion
civilized society ○ Divine origin and sanctity of laws
■ De Maistre: Civil society is founded on the ○ Law, morality and religion were inevitably interrelated
hangman ■ Lawgivers are mythical, semi-divine or heroic
● Rules about Force ■ The divine origin of laws lent authority to them
○ Laws of developed states: close and efficient ■ Moral duty to obey the law
regulation of force ○ Human penalties still existed. If humans could not
○ Attempt to overshadow force with authority by a punish the crime, the divine would.
return to charismatic leadership ○ Polytheism offered flexibility in administration of justice.
○ The view that force only becomes incidental is a One god may punish, one god may stay punishment.
“fatal illusion” ○ Monotheism introduced a stern, inflexible Divine Will
■ Modern society has a massive organized where squabbles of gods would not mitigate the full
force that has a monopoly in the use of force of law. The whole of the law did not necessarily
violence. come from the divine. Distinctions were made between
■ State apparatus must be so big and fundamental, unchanging laws and man-made laws
undefeatable that others will not dare resist it.

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Aspect HEBREW GREEK

Form of religion Monotheistic Polytheistic

Language / mode of Prophetic writings. Prophets are those with Oracles, priests
transmission extraordinary charisma and passion for divine will

Divine Law Imperative, obligatory and punitive Fate, mysticism did not affect human laws

Human Law May be decreed by kings and prophets anointed by Man-made laws may not always be reasonable or
God. In case of conflict with divine law, the latter shall valid. They must be subject to a higher law of
govern. reason. Its validity is not subject to divine stipulation

What is law? Law is simply the moral / religious law set down by Law is a reasonable command needed for society to
God through the prophets. flourish.

Focus of the law Irrational and mystical, a matter of faith Rational order of the universe, ascertainable by
rational investigation; human reason

Dangers Obscurity of language, persuasion, limitless ----

interpretation leads to either rigid orthodoxy or
anarchy

Moral Duty to Obey the Law If a law is immoral, it does not have to be obeyed. Illustrated in the Apologia of Socrates in Plato’s
God has the last word regarding law and justice. Crito: law, even if contrary to reason, must be
obeyed.

Man agrees to the rules laid down by the state. If he

should break them, he must face the punishment laid
down in the law. Obedience to the law of the state is
the highest morality. Moral law does not override
state law. Citizens, should however, move to amend
laws contrary to reason.

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Relation of Law to Morals

It appears that the Greeks are nearer to the
prevailing opinion the modern world. There are those
who argue that the duty to obey the state is of prime
importance.
Hegel: the individual is treated as submerged in the
higher reality of the state,, whose superior wisdom
could hardly be expected to be open to the Intersection between law and morality is misleading -
persuasion of an individual citizen that it was in error, where there is common ground between the two, there is
or that its courts were unjust or immoral, since the kind of identity
state itself represents the very embodiment of this is only two-dimensional
dimensional portrayal
morality Law and morality reinforce and supplement each other
his philosophy has provedoved to be so influential as part of the fabric of social life
in relation to later totalitarian doctrines Moral codes, by recognizing that we ought generally
The limitations present in cases where morality was to refrain from such acts, supplement the force of law
in conflict with the provisions of positive law which equally forbids them
the overriding
iding moral duty might to be to obey the moral duty to obey the law is generally accepted,
the law until persuasion is effective tto bring and plays an important role in establishing the
about legislative changes authority of the law and ensuring obedience to it
there may still be extreme situations where similarity of normative
ative language that each employs -
the law dictates acts of such patent both lays down that it is “my duty to do this or do
immorality that”
the moral duty is that of rejection, dangerous in the sense that it connotes that
rather, than obedience to the law law must necessarily connote moral
obligation

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Where Law and Morals Diverge standards and without its influence, enforcement
Example : the law may condemn/punish sexual of such laws may get weaker
immorality but there is a moral duty to save/preserve An Example from Modern Divorce Law
life Until 1969: grounds were based on matrimonial
The law shrinks from pursuing what may offense (e.g. adultery, cruelty, desertion)
nevertheless be recognized as the authentic path of Divorce Act of 1969 - sole ground was to be the
morality irretrievable breakdown of marriage
Higher ethical attitude may not be sufficiently It was difficult to set a test or standards to determine
embodied in popular sentiment to be productive of whether the spouses should be allowed to divorce
legal action in conformity with it it instructive to compare cases where a
only a small part of the population who have decree has been granted applying a test
the moral force to produce sufficient change One of the aims of legal process -> general
in popular sentiment uniformity of result in cases of similar kind
this brings the spread of more human moral applying various criteria to actual cases
sentiments and standards coming before the courts
Law deliberately prefers to abstain from supporting in the process, rational principles are
the moral rule gradually developed which can be applied in
machinery is too cumbersome a multitude of differing situations without
more social evil may be created than sacrificing any substantial measure of justice
prevented Society is provided with a more subtle and
John Stuart Mill: law should not intervene in sophisticated means of bringing the law into
matters of private moral conduct more than contact with the needs of current morality
necessary to preserve public order and to The Ladies’ Directory Case
protect citizens against what is injurious and The publisher of booklet giving information as to the
offensive; there is a sphere of morality which addresses, telephone numbers, and other particulars
is best left to individual conscience of various prostitutes was held guilty of conspiring to
Criticism: criminal law depends for its corrupt public morals
effectiveness on incorporating moral

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House of Lords : role of court as custodian of public more rational form of sentencing
morals and its duty to preserve the moral welfare of policy can operate
the state Compromise: retaining conception
it is up to the jury to ascertain the of guilt and responsibility in relation
requirement of public morals the actual commission of the offense,
Crime and Punishment but eliminating it from the
if the law were to confine itself to a more limited consideration of punishment
sociological objectives removes the burden of determining
eliminate moral judgments from criminal law the degree of punishment and its
protect society and reform the prisoner possible psychological effects to the
Morality impinges upon law: convict
“guilt” is linked with the idea of moral but would have to regard the
responsibility; morals reinforce the authority protection of the public - if his release
of the law and duty to render obedience to its would involve serious peril to other
decrees members of the public, the court is
“responsibility” in law - excluding the required to detain him
possibility of guilt if there exists some release of the prisoner depends on
circumstances of excuse which causes us to the level of danger he brings to the
adjudge the accused not morally implicated in public
the deed which constitutes the offence if this would be effective, then criminal
“mens rea” - guilty mind; entails a law would be transmuted into an
certain mental element inquiry into the facts of a particular
Circumstances which negative this crime and the social, mental and other
mental state may relieve the accused aspects of the background of the
of legal responsibility (exempting accused person, thus removing the
circumstance) notion of responsibility
punishment to be inflicted - by
eliminating moral responsibility, a

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Conflicts Between Positive Law and the Moral Law

Three main attitudes which may be adopted towards the
possibility of such divergence between law and morals
Law and morals necessarily coincide either
because the moral law dictates the actual
content of human law
first alternative: moral law is valid and that
nothing which does not conform
to the moral law itself can be properly
regarded as effectively binding law
second alternative: morality really means
nothing more than obeying the law
(Hobbes)
man-made law and the moral law each
enjoys a realm of its own but moral law is a
higher law and thus provides a touchstone
for the validity of merely man-made law
autonomy of each of the spheres of law
and morality as exclusive, so that neither can
resolve questions of validity save in its own
sphere

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CHAPTER 4: NATURAL LAW AND NATURAL RIGHTS Chinese outlook places nature upon a
Idea of two laws—one resting on human authority and the pedestal
other resting on natural or divine origin—has a long history New approach
and is still a prevalent belief Emphasis on nature may be connected to Judeo-
Meaning of Nature Christian monotheism to combat capriciousness
In early society and early forms of civilization, no of divine rule
distinction was made between the natural world Nature as a fixed order and one which was entitled
and the world of human beings to reverence since it was God-given
No distinction between natural physical laws and God could thus be conceived as a divine lawgiver
decrees by gods and their representatives Possibility of scientific approach to laws
Gods or supernatural spirits direct everything as fixed principles governing the physical
in the universe world
Nature as both inferior to and subject to the No clear demarcation between unchangeable
latter’s control order of nature laid down by God and pattern
Nature, at best, is how things or people may of human conduct equally laid down to all
normally be expected to be or behave eternity
Few people attained an approach to nature differing Early Greek Philosophers
to the abovementioned The scientific approach to nature also received a
Chinese did not arrive at the notion of fixed vital contribution from the so-called pre-Socratic
physical laws of nature governing the philosophers
universe but rather, relied on the idea of Main objective of pre-Socratic thinkers was to
harmony explore the world of nature in order to find
Chinese demonstrates that if the idea of the some principle governing the universe
will of gods as perpetual and capricious force which would explain its structure or
diminishes status of nature vis-à-vis the functioning
supernatural

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Belief in rationalism, idea that the universe is Platonic and Aristotelian treatment of natural law and
governed by intelligible laws grasped by the human natural justice are of particular relevance up to the
mind, arose present time
Man’s nature is dictated by his instinct and Plato: nature as an ideal expressing the
law curbs such instinct like man’s sexual fundamental aspiration of man if his full
urges potentialities are attained
Plato and Aristotle Nature as ideal standard
Plato’s idealist philosophy Law or justice as ideals
Justice as represented by the laws amount to Aristotle: nature as the way man behaves by
no more than a pale shadow of real justice reason of his psycho-physical make up
Justice as static and law and government as Nature as fact or what man actually is
rigid and inflexible Stoic Philosophy
Plato has moved far from the position of his History of natural law owes a great deal to stoic
master Socrates with his reverence for the philosophy arising after Aristotle
laws of the native land Stoicism stressed the universality of human nature
Aristotle’s naturalist philosophy Emphasis on reason as the essential
Aristotle gradually rejected the idealist character of humanity
philosophy of Plato Universal law of nature ascertainable by
Aristotle advocated for the development of reason provided standard for justice and
the realms of knowledge relying on man-made laws
observation and experience Idea of a common law applicable to all mankind
Nature as the capacity for the development clearly afforded some concrete shape to the rather
which is inherent in particular things abstract Stoic conception of a universal law of nature
For Aristotle, justice may either be Christianity and Natural Law
conventional, or varying from state to state, Judaic view of law was that it represents God’s will
or natural, that is common to all mankind on Earth

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Early Christians however, were taught to Dichotomy of divine law only known through
despise things of this Earth and to expect revelation and natural law known through rational
the destruction of this world for the unaided human reason
coming of God’s kingdom Scholastic philosophy was a highly rationalistic
Hence, while Earthly rulers had to be one that relied heavily on truth as elicited by logic
obeyed, Earthly laws were mere civil and deductive reasoning
arrangements to address man’s sinfulness But at the same time, its premises were not
At the same time, Christian writers recognized that chosen on rational grounds but were given
even in an imperfect world, there was a need for by the beliefs of Christian theology
justice as decreed by God Aquinas set the pattern of modern natural-law
Justice as an inferior of that ultimate divine thinking by construing natural law as not a system of
justice rules which covered the entirety of human affairs
Link between natural law and Christian theology There are cases of which the law provides
increased natural law authority compared to the and there are some where it is needed to be
older Stoic law of nature morally indifferent
Natural law was now imposed by God Human law was fully reinstated as entitled a major
Idea that mere human law is subordinate to role in human government by filling the gaps of
natural law natural law and developing further the implications of
Mechanism now exists for people like the natural law in the intricacies of human relations
Pope to expound on natural law and require Aquinas did not address cases of conflict
kings and emperors to recognize such between natural and human law but he
Aquinas and Scholasticism seemed to think that obedience was still
St. Thomas, under influence of Aristotle’s position needed in order to avoid scandal
that man achieves natural development in a Renaissance and Secular Natural Law
political society, rejected the notion that law and The Reformation, with its emphasis on national
government were rooted in sin and therefore Churches controlled by the state, led to a secular
necessarily imperfect revolution

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New age may be regarded as the Golden Age of the enabled recalcitrant leaders to seize power
law of nature where emphasis was placed on the claiming he represented the general will
rational character of natural law Modern Approaches to Natural Law
Unique quality of man in reason and the Theories of natural law: Catholic, philosophical,
rational element is shared by all mankind and sociological
International law should govern international Catholic - neo-Thomism
relations under this perspective Philosophical - neo-Kantianism (we should
Human law should give effect to natural law and always act to the norm of conduct so that our
incase of conflict natural law shall prevail acts shall be translated into universal law)
Natural Law and Natural Rights Sociological - factual approach; attempt to
After the Renaissance, the notion that man apply scientific method to elicit data of man’s
possessed certain fundamental rights in a state of fundamental drives and urges
nature gained currency Post-war Revival of Natural Law
These rights were translated into civil rights Nazi rule and International Tribunal at Nuremberg
in a civil society revived the call for a higher law than national laws
Locke: social contract gave power of rulers which a natural law approach may address
and government rooting from the confidence It is in this century of anti-rational ideologies
given to them by the people, granted that such as Nazism and Fascism, that rational
rights of the people are upheld faith in natural law re-assert itself
In the past, natural law was conceived as imposing Relevance of Natural Law to the Modern World
duties and prohibitions but now it was a source of Incorporation of Bill of Rights in Constitutions
fundamental democratic rights Suspension of a judicial decision if it is contrary to
Constitutions of democratic countries brought natural justice
actual machinery of the recognition of Recognition of a higher system of justice to avoid
rights in law as legal rights conflict in international relations
Rousseau: general will as natural law and Natural law to aid in cases of legal predicaments
sole unfettered legal authority but these like Nazism, apartheid etc.

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CHAPTER 5: LEGAL POSITIVISM Different from moral norms since law calls for
Physical and Normative Laws a certain measure of regularity and
Positivist approach may be traced to the observance
Renaissance with its emphasis on the secular Moral rules on the other hand, shall be valid
studies of science and humanism even if it is hardly observed like the rule that
Empiricism associated with observation as we should love out neighbors as ourselves
a means of ascertaining the laws of science Hume, who rejected natural law, made various
influenced every field suggestions as to the way in which human passions
Clear demarcation between laws of physical come to create moral norms
nature and normative laws of human conduct The Utilitarians
Before, theological background of natural law Behavior of mankind was dominated by the influence
interpreted both physical and moral laws as of pain and pleasure
traceable to God’s will, effectively blurring Utility as what served to increase human
their distinction happiness
‘Is’ and ‘Ought’ Bentham’s principle was aimed at maximizing
Hume pointed out that there are really two realms of human happiness according to the slogan, ‘the
human inquiry: greatest happiness of the greatest number’
Field of facts - what is actually the case Bentham rejected natural law which was for him
Field of ought - what ought to be the case; nonsense upon stilts
normative His arguments in favor of utility were based
Hume’s discussion was principally concerned to on the fact that human reason could find no
distinguish between fact and moral obligation rational justification for preferring one course
What the law does is to lay down norms of to another
conduct for citizens and to indicate what sanction Ironically, Bentham’s principle that one man’s
should or ought to follow happiness was equal to another man’s owed
to the widely established ‘natural’ right of
equality

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Move to Legal Positivism Positivist attack natural law idea as it creates a

Utilitarianism provided the climate for the move to prescribed inherent quality to laws which form a
legal positivism through: barrier to law reform
Firm distinction between law as it is and as it The Judge and His Conscience
ought to be The legal positivist would submit that the judge’s
Tendency to treat law as a science legal duty to apply the law to its letter and spirit is
deserving to be ranked with the other clear
sciences both in its aims and its methods If he was persuaded of its moral
Law as it is and as it is ought to be unconsciousness, then his moral duty is
Bentham linked his discussion of morals in terms of conflicted with his legal duty and he should
utility with the firm conviction that law could only be then presumably resign
properly understood if it was treated as an As in the example of an anti-Nazi judge in
autonomous field free from morals, religion, etc. Germany or anti-Apartheid judge in Africa, a
Natural law as mythical and muddled thinking man may, in fulfilling his legal duty, knowingly
by confusing legal with moral issues be acting contrary to the dictates of morality
For Bentham, the question of goodness and badness Law as a Science
of a law was to be adjudged by his great principle of Word ‘positivism’ was devised by French
utility. Law reform operates under this principle. philosopher Comte to designate his own particular
Legal duty does not cease to be a legal duty philosophic system
because the citizens are persuaded of the moral Belief that adequate knowledge could be
immorality of the duty attained only by employing the scientific
Whether he chooses to comply or obey is a method or investigating reality by
question for his own conscience observation and subjecting its theories to
Legal positivist will see apartheid as formally empirical investigation
valid but condemn on moral grounds Comte argued that there were three steps in the
development of man’s approach to the world
Religion

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Metaphysical primary facts consisting of behavior of

Positivist legal officials, judges, and others in
Unfortunately, at the end of his life, Comte relation to legal rules
abandoned his work The scientific jurist cannot ignore the fact that there
Scientific spirit also infiltrated arts and literature is built into the law seeds of its own development
Austin’s ‘Science of Positive Law’ on the lines of some value system
Austin was mainly impressed by the fact that law Where Positivism stands Today
operated through a system of conceptual thought Usually associated with disbelief in the possibility
Austin’s aim was to examine such conceptual of finding an absolute standard or norm outside of
system, its structure and fundamental notions the legal system itself
Austin had many followers who continued his purely Attack on positivism launched today in two ways:
conceptual attitude toward legal theory Legal positivism by its refusal to
The ‘Conceptual’ Approach acknowledge an absolute higher morality
Criticisms: controlling legal validity, has made it possible
Treatment of legal concepts as possessing for totalitarian dictators to bend laws
an inherent structure regard developments Absolute moral values do exist and can be
of law that do not adhere to such demonstrated to exist by various means
structure as illegitimate On the whole, the positivist shares a rationalist
Treatment of the conceptual approach that approach to the moral values of his society rooted
legal problems can be solved by means of in European ethical thought
logical analysis disregard role that policy The positivist prefers to concentrate on studying
plays in arriving legal decision the values that are inherent in our present stage
Conceptual approach focused on second- of civilization rather than postulate absolute values
order facts such as rules of law, cases, and Consequently, the lawyer needs to
law books which disregard first-order or understand the value system of his
society in order to wrestle the problems
which arise in the legal system

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CHAPTER 6: LAW AND JUSTICE Formal Justice: equal treatment in accordance with
Idea of law has always been associated with the idea of classifications laid down by rules
justice Formal justice is lacking in that it does not tell
Law without justice is a mockery, a contradiction us about how people should or should not be
Values embodied in laws of a community, strive classified
towards justice Formal justice involves three related conceptions:
What is Justice? Rules on treatment of people in given cases
Justice in itself is a moral value that man aims Generality of rules
towards in order to attain the good life Impartial application of rules
What is ultimately good is a matter of choice Substantial Justice
Platonic Justice To achieve substantial justice, formal requirements
Man is a reflection of the pattern of the just society of justice need to be supplemented in two ways:
Man acts according to his idea of a just Concrete Justice: criteria to establish
society whether rules are themselves just; possibly
Justice means conforming to one’s proper sphere through a scale of values in cases the gravity
Plato’s system is based on the fallacy that of two values are debated upon
each man fits a specific job or function Equity: quality of fairness; possibly through
based on his natural aptitude giving discretionary power to judges to decide
Formal Justice and Equality individual cases under the spirit of equity as
Modern legal and moral philosophy treats equality as applied in deciding penalties in criminal law
the vital function of justice Legal Justice
Law applied without discrimination may be Justice is a much wider conception than law and
regarded as embodiment of justice may apply wherever there is a code of rules, legal or
However, justice cannot mean that we are to non-legal
treat everyone alike regardless of inherent Law and legal system corresponds to all three
differences precepts of formal justice namely, rules, their
generality, impartiality

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A certain measure of coherence and regularity is a In the abovementioned cases, an unjust law is a
vital feature of any legal system but no exact perfectly intelligible conception which conflicts with
standard can be laid by which this measure is to be the scale of values which we choose to judge it
judged Formal justice, like law itself, may fail to result in
Legal Injustice substantial justice
3 distinct types of cases which injustice in relation to Law and Substantial Justice
law may arise: It is not enough for a system of law to comply with
Case decided contrary to what the law lays formal attributes as it also needs just content
down Two ways in which a legal system may attain not just
Case is unduly administered contrary to formal but substantial justice:
impartiality Flexibility in rules- to allow law to adapt to
Case is judged according to formal justice needs of the society
but against substantial justice More specific guidelines- will work well in a
country with a long tradition and fairly
homogenous population i.e. Art. II of the
Constitution

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CHAPTER 7: LAW AND FREEDOM ● Open and Closed Societies

● Introduction ○ Open society – wide field left for personal decision
○ Law as paradox: means of directing and imposing and for assuming of individual responsibility, e.g.
restraints upon human activities Western democratic society
○ Rousseau: “Man is born free; yet everywhere he is ○ Closed society – Almost tribal or collectivist pattern
in chains” where the community is completely dominant and
■ The savage man lives a life of primitive the individual counts for little or nothing, e.g.
freedom and simplicity, but Totalitarian society such as that of the Soviet Union
■ In practice – as Rousseau realized – man is or the former Nazi Germany
never isolated and free in this sense but ○ Note: there are developments even in Western
always part of a community, and the degree society in the direction of a more collectivist society
of freedom he enjoys or the extent of the ■ increasing role of the state in matters
social restraints imposed upon him will concerning social welfare
depend upon the social organization of which ■ increasing conformity in patterns of social
he is a member. behavior and discouraging what are regarded
○ Restraint is not necessarily an encroachment upon as individualist aberrations
liberty. ○ Marxist argument: without control of wealth and the
○ Ancient times: inequality, rather than equality, was pattern of its distribution, the genuine scope of
regarded as the fundamental law of human society. equality and individual initiative remains extremely
Freedom was a guarantee of security in the station limited.
of life in which Providence had placed him ● Positive and Negative Freedom
○ Modern times: freedom has assumed a central ○ Positive freedom –spiritual conception, implying
position and a more positive function in the scale of some kind of maximum opportunity for the ‘self-
values set up as the operative ideals of a genuine realization’ of every individual to his full capacity as a
social democracy on the Western pattern. human being.
○ Negative freedom – concerned with organizing the
pattern of society, that despite the restraints and
limitations that are placed upon individual action for

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○ the benefit of the society as a whole, there remains a disregarded them were to be treated as
large sphere for individual choice and initiative as is invalid.
compatible with the public welfare. ○ Attempts in more recent times to express in a supra-
○ As far as legal freedom is concerned, the emphasis national form the basic human rights which are
is on guaranteeing the maximum degree of regarded as the legal entitlement of all human
‘negative’ freedom. Attempts have been made in beings:
modern society to try to give effect to those values ■ Universal Declaration of Human Rights of
which are regarded as enshrining freedoms which 1948
modern man has come to accept as an ■ European Convention of Human Rights
indispensable feature of ‘the good life’. ■ Declaration on the Rule of Law sponsored by
● Basic Human Rights the International Commission of Jurists in
○ Distinctively natural-law origin 1959
○ 2 outstanding contributions of the constitution ● The Main Values Expressed in Legal Freedom
makers of the United States and the early judicial ○ Expanding / Contracting Rights
interpreter of the constitution: 1. Equality and Democracy (E)
■ The idea of expressing in the written recognition of equality before the law
constitution what were accepted as the principle of non-discrimination in regard to
fundamental legal human rights of the such matters as colour, race or creed
citizens 2 important lessons from the point of view of
■ Marshall doctrine: it was for the courts the relationship of law to society:
(ultimately the Supreme Court) to i. rules of law which are note expressive
determine the scope of these of the mores or standards of conduct
constitutional provisions. He laid down which prevail in a given community
that the court was bound to treat these rights are likely to remain dead letters
as ‘overriding’ in the sense that any through passive or even active
legislation or legal rulings or decisions which resistance of the citizens.

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ii. if law is to be an effective focus for there was consent, i.e. taxation was
giving expression to fundamental authorized by a duly elected representative
values, it cannot merely reflect the legislature
common level of morality; it must be At the present day, the level of taxation is at a
regarded as a positive directing force, height which in previous ages would have
which can be used as an instrument been regarded as confiscatory.
of social progress, i.e. an Inroads that have been made on the right to
‘enlightened’ minority leading the property:
‘recalcitrant’ majority. i. Nationalization of whole industries
2. Freedom of Contract (C) ii. Control on the uses that land and
Laissez faire, where one had the right to buildings may be put to
make his own contractual arrangements, led iii. Powers of compulsory acquisition
to startling abuses by corporations. enabling authorities to acquire land
The counter move in favour of state control from private owners
started with the legislation against iv. In Soviet Russia, protection of private
monopolies and restrictive trade practices. property is only to articles of personal
The rise of trade unions in recent times use (not the means of production or
transformed the character of industrial land)
relations, e.g. equality of bargaining power. 4. The Right of Association (C)
The widespread growth of ‘standard-form’ Right of various types of groups: social,
contracts has further exposed the unreality of political, economic, or any kind to organize
freedom to contract. themselves and conduct their affairs
3. The Right of Property (C) This extends to the right of business
Power of the state to tax seemed to involve enterprise to organize itself and how far it
an encroachment upon the right to property may be legitimately restrained in order to
Reconciliation was found in the principle that protect the public against monopolies,
taxation was permissible provided that restrictive practices, or fraud.

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Right of labour to organize itself in trade iii. Compulsory or semi-compulsory

unions to deal on a collective basis with arbitral procedure of a judicial or
employers. quasi-judicial character in US,
Right of people to hold public meetings, for Australia, etc.
the purpose of making protests or attempting What is really at stake is the ability of a group
to influence public opinion and so forth. of workers to hold to ransom not only a whole
The state has a right to preserve public industry but even the whole economic life of
order and this may frequently clash with the the country.
right of holding protest meetings, e.g. in 6. Freedom from Want and Social Security (E)
England, owing to the outbursts of Fascism in The need to protect everyone, not merely
the 1930s, it was found necessary to pass against grinding poverty, but also in the
the Public Order Act of 1936, preventing the enjoyment of a reasonable standard of life
wearing of unofficial uniforms in public places whether in or out of employment.
and imposing restraint on the use of abusive Need to spread the risks of misfortune
language at public gatherings. among the community as a whole, rather
5. Freedom of Labour (C) than allowing them simply to affect the
This right in modern times has mainly particular victim of misfortune (as opposed to
developed in relation to the trade union the Victorian philosophy of self-help).
organization of labour. 7. Freedom of Speech and of the Press (C)
Legal restraints on the freedom of labour: Fundamental value in any community
i. England’s Industrial Relations Act of where democratic and egalitarian values
1971 (established the National prevail, for without these, the possibility of
Industrial Relations Court) developing and crystallizing public opinion,
ii. Trade Union and Labour Relations and allowing it to be brought to bear upon the
Act of 1974 (repealed the Industrial governmental organs of the state, is bound to
Relations Act) be ineffective.

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Freedom of speech can hardly be 8. Freedom of Religion (C)

absolutely unrestricted e.g. a law of The exact implications of this doctrine may
defamation, sedition, obscenity appear in a very different light in different
Freedom of speech and of the Press usually communities. Under the US Constitution, no
implies an absence of initial censorship, established religion is permitted, whereas in
subject to any possible legal action thereafter England and established religion is an
ensuing essential part of the constitution.
A substitute is found in self-censorship The main aspects of freedom of religion
i. Difficulty: ultimate limits of tolerance which are apt to arise nowadays are:
which may be required by the i. Discrimination against religious
established value of freedom of groups
speech ii. Religious schools
Greatest significance of censorship at the iii. Specific teachings of religious faith
present day is positive. (e.g. Mormons encourage polygamy,
i. Against the danger of various organs Christian Scientists may refuse
of public opinion to fall increasingly medical aid)
into a very few hands by reason of The law generally declines to regard
newspaper mergers and take-overs religious groups as being entitled to any
The Press clearly retains a central position in special degree of immunity from legal
mass media because of its unique capacity regulations
for serving as a focus of public opinion. 9. Personal Freedom (C)
What seems to be unproved is that there is Although personal freedom may easily be
any necessarily overriding public interest ranked as supreme among the freedoms of a
which entitles journalists to complete democratic society, it is not easy to find
immunity as to revealing their sources of specific applications which do not more
information, although no such immunity is readily fall under other headings of freedom,
enjoyed by anyone else. e.g.

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i. Need for ‘due process of law’ form iv. Adequate legal aid for those with
essential elements of the ‘rule of law’ insufficient financial resources to
ii. Freedom to take up any employment obtain suitable legal defence
is linked with the freedom of labour v. Accused being entitled to refuse to
iii. Choice of residence has to do with make statements that may incriminate
economic resources, though the state himself
can do much to provide suitable vi. Those charged with duty of advocacy
homes must be free and independent, not
iv. Restrictions on the freedom to travel subject to any state pressure
also raises issues on personal vii. No retroactive legislation
freedom, e.g. passport requirement, viii. A person is only answerable for his
extradition own wrongdoings and not to be
10. The Rule of Law (E) punished simply because he is in
The Rule of Law is herein referred to in its some way connected or related to the
narrower sense, as imposing those guilty person (referring to criminal
procedural guarantees which have been liability, not civil liability for acts of his
found necessary to ensure what in American servant or agent)
constitutional practice is known as ‘due The scope of the modern rule of law is not
process of law’ limited to cases of safeguarding accuse
This involves: persons, but also has a wide and important
i. Independence of the judiciary sphere of operation in regard to the
ii. Speedy and fair trial and adequate exercise of state and governmental powers,
judicial control over police and i.e. rules of administrative law which enable
methods of securing confessions either the ordinary courts of law or some
iii. Adequate safeguards regarding arrest special tribunals to exercise supervision over
and detention pending trial administrative or quasi-judicial functions of
the executive. These provide the system to

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handle complaints against the state or its ● Human Rights and Their International Protection
organs for abusive, improper, or negligent ○ The reluctance of individual states to take adequate
actions, e.g.: measures to protect individual rights either of citizens
i. Common-law systems rely on general or of aliens in their midst has led to attempts to
supervisory jurisdiction by the establish supra-national authority which can take
ordinary courts steps to protect individuals against denials of justice.
ii. Continental countries favor ○ Customary international law can hardly provide
independent administrative courts or assistance, e.g. only states are recognized under
tribunals, such as the Scandinavian that system of law, not private individuals.
Ombudsman ○ Two requisites:
iii. The French system is based on the ■ Clearly laid down code of established
Conseil d’Etat human rights accepted by all civilized states
● The Problem of Conflicting Values ■ System of judicial machinery where issues
○ There are many ways in which conflicts may arise involving alleged infringement of these rights
between the various types of fundamental rights can be investigated and determined
accepted in the modern democratic state ○ Attempts to establish supra-national authority:
○ How personal freedom would have to yield to ■ Universal Declaration of Human Rights
considerations of public security was made by adopted by the General Assembly of the
American Judge Justice Holmes: there must be a United Nations in 1948 – no machinery
clear and present danger to public security. ■ Convention for the Protection of Human
○ ‘Preferred freedoms’, i.e. certain freedoms Rights and Fundamental Freedoms, signed
guaranteed by the Constitution are to be regarded as by the Council of Europe in 1950 – only
more fundamental than others and therefore should discretionary competence
prevail against the less basic freedoms. ■ The primary concern of the European
Economic Community was expressed in the
Treaty of Rome

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