III.
SCHOOLS OF THOUGHT IN LEGAL PHILOSOPHY No connection to morality
Legal positivism holds that there is no necessary connection
between law and morality, and that laws are not subject to moral,
NATURAL LAW THEORY religious, or philosophical justification.
Natural law theory is a moral and legal theory that states that
Laws are made by legislators
human nature and the natural world are the source of moral
Legal positivism holds that laws are synonymous with positive
standards.
norms, which are norms made by legislators or considered as
It's based on the idea that there are universal moral standards common law or case law.
that are not dependent on culture or customs.
Laws are valid by convention
They are of the view that law can be deduced by man from reason Legal positivism holds that laws are valid because they are
as to what is right or wrong. enacted by legitimate authority and accepted by society, not
This theory of law is of the position that there is an innate because they are rooted in moral or natural law.
tendency in all humans helping to distinguish right from wrong.
Natural law theory has its roots in Roman law, Aristotle, and
law as “a command set by a superior being to inferior beings and
ancient stoicism. It's closely linked to religious traditions like
enforced by sanctions.”
Roman Catholicism.
By this definition, it means that the only things that can be
eg.
regarded as law are those that are enacted as such by the person
● Natural law is applied to ethical business practices, such authorized to do so.
as not defrauding customers or stakeholders.
● Certain crimes, like murder and rape, are almost The definition has the following elements:
universally accepted as punishable.
1) The existence of a definite sovereign.
CRITICISMS
2) The sovereign is without legal limitation in the exercise
1) the fact that unless natural law is promulgated as a law, of his power.
it does not carry the force of law and would not be
3) The subjects must be in the habit of obeying him
enforceable.
because of his coercive power to impose sanctions.
At best, it would be considered as a moral rule.
2) the dictates of natural law are usually seen subjectively.
What is fair, equitable and just to one person may not be CRITICISMS The positivist theory of law has been criticized on
fair, equitable and just to another person. numerous grounds:
eg. The homosexuals and their supporters are of the 1) not all laws are couched as commands
view that it is only fair and just for them to be allowed to for example, most of the provisions in Article II of the
express themselves by way of cross dressing say for 1987 Constitution–the Declaration of Principles and
instance. State Policies.
Those who oppose it on the other hand are of the
2) Positive law is only concerned with the fact that the
opinion that homosexuality is against the order of nature
sovereign enacts a law. It is not concerned with whether
and should thus be prohibited.
or not the law is moral or acceptable to the society.
Thus, it would be problematic if everyone in the society is left to
3) the idea of an uncommanded commander who has
choose what is right and wrong on the basis of how he feels.
no legal limitations would not be applicable in today’s
world. Even if it is a military regime, the military is till
bound by the provisions of the laws it enacts.
LEGAL POSITIVISM
4) not all human beings obey the law because of the
Legal positivism is a philosophical theory of law that holds that
sanctions attached to it. Some people just don’t
laws are socially constructed and are not based on any ideal or
contravene the law because it is their nature. For
natural law:
example, some people abstain frommurder not just
Social construction because of its punishment but because they find the
Legal positivism holds that the existence and content of law is killing of a fellow human being repulsive.
determined by social facts, such as human behavior and
intentions
LEGAL REALISM ETHICAL RELATIVISM
Legal realism is a legal theory that law is influenced by social Ethical relativism is a philosophical theory that states that
interests and public policy, rather than by formal legal rules. morality is relative to the norms of a culture or society, and that
It's a naturalistic approach to law that uses empirical evidence there are no absolute truths in ethics.
and hypotheses to test against the real world.
Legal realists believe that judges consider social interests and EXPLANATION
public policy when making decisions, and that the outcome of a Ethical relativism holds that–what is considered right or wrong
case is more complex than just applying existing rules. depends on the moral norms of the society in which an action
takes place.
They argue that the law is flexible and that legal rules are
indeterminate, meaning they can be interpreted in multiple ways Moral codes of a society are culture-bound.
eg. an action may be morally right in one society but morally
This school posits that the law is not just what is in the books and
wrong in another.
decided cases.
They are of the view that the judge and jury, in making their - US, Abortion may be allowed when fetus is not yet viable
decisions, are influenced by extraneous factors. outside the womb
For example, if a judge that has been a victim of rape or is close - PH, abortion is not legal
to a victim tries an accused rapist,
there is every likelihood that she would not want him to go scot CRITICISMS
free due to her previous experience. Since Right & Wrong are only matters of opinion that vary from
This school aims at reforming the judicial system. They are of culture to culture, it does not follow that there is no Objective
the view that judges should constantly try their best in order to truth to any of them.
be objective in deciding a particular case Their difference does not negate the fact that it is possible one of
them can be wrong based on Objective standards.
Jus Cogens / Peremptory Norms
LEGAL FORMALISM Jus cogens norms are a compilation of rules that establish
Legal formalism is a legal theory that states that judges should international obligations to protect the fundamental interests of
apply the law as written, without considering social or political the international community. Violating these norms is considered
influences. It's also known as judicial formalism. a crime against the international community.
Legal formalism is based on the idea that the law is a set of rules The international community must universally accept the
that are separate from other social and political institutions. It's mandatory effect of a norm for it to be considered jus cogens.
often contrasted with legal realism, which is the idea that judges No derogation is permitted from a jus cogens norm.
should consider factors beyond the literal wording of the law.
A jus cogens norm can only be modified by a subsequent norm
Legal formalism is based on the following ideas: with the same legal status
● The law is made up of rules that come from the
communicative content of legal texts. UTILITARIANISM
● Legal rules can be applied to specific facts.
● Some actions follow the law, and others do not. The purpose of the law is to guarantee communal utility. Utility in
● The standard for following a rule is publicly known. this sense means that which affects the happiness of the people.
The law should always seek to promote the utility that would
According to formalists, the judges should be constrained in their positively affect the larger part of the society.
interpretation of legal tests suggesting that providing the
judiciary with the power to say what the law should be, rather Here are some key ideas of utilitarianism:
than confining them to decide what the law does say, violate the ● Impartiality: All people should be given equal moral
separation of powers. The formalists argue for a ‘government of consideration.
laws and not of men’. ● Agent-neutrality: The action should be evaluated based
Legal formalism differs from legal realism. According to legal on its effects, not on the person performing it.
realists, interpretation of legal tests is justified in order to assure ● Greatest happiness: The goal is to achieve the greatest
that the law serves good public policy and social interest. balance of pleasure over pain.
But, the legal formalists oppose this argument stating that giving For example, the law allows for the police to invade the privacy of
authority to the judges to change the law to serve their own ideas a suspected armed robber, robbing him of his liberty, in order to
regarding policy undermines the rule of law. guarantee the security of the society.
CRITICISMS
One of the criticisms against this school is that it doesn’t specify
a specific method for balancing the interest of the individual and
community.
Utilitarianism is opposed to egoism, which is the idea that people
should pursue their own self-interest, and deontological ethics,
which is the idea that some actions are right or wrong regardless
of their consequences.
Law's role in education
- education in music was a better way to cultivate habits that
IV. LEGAL PHILOSOPHERS & THEIR THEORIES
would lead to virtuous actions. He believed that a method that
Plato relied too heavily on external incentives would lead to improper
pleasures.
Philosopher Kings (The Ruler)
Law and private virtue
Aristotle believed that using law to instill private virtue was
Plato's legal philosophy is centered on the idea that unlikely to succeed. He believed that using law for narrow
- laws are essential for promoting the well-being of reasons could lead to abuse and factionalism.
citizens and the unity of the city.
- laws should be a combination of persuasion and
Cicero
compulsion, with a prelude that explains why it's in the
citizen's best interest to obey. arcus Tullius Cicero (106-43 BCE) was a Roman philosopher and
If persuasion fails, the law should include a punishment. lawyer who believed that laws should be based on natural law, or
the universal law that governs nature:
The rule of law
Each citizen should seek what is best for themselves, Natural law
and that the true purpose of legislation is the common good.
Cicero believed that natural law is a universal law that is inherent
The role of the legislator in nature and common to all people. He defined it as "right
The legislator should create laws that are in the best interests of reason, consonant with nature, common to every man, constant,
the citizens. eternal".
The importance of knowing and accepting the law The role of the state
Citizens should know and accept the laws in order to become
Cicero believed that the state should uphold laws that are in
virtuous and unify the city.
harmony with natural law. He argued that a state that does not
The authority of law uphold right reason is not a state.
Plato explored the authority of law and its relationship to
The principles of justice
morality.
Cicero believed that the principles of justice are:
The ideal state
Plato believed that the ideal state is a perfect whole where each Do not initiate violence without good reason
individual functions for the health of the whole.
Keep one's promises
The seven forms of government
Respect people's property
Plato distinguished seven forms of government, ranging from the
ideal state of the philosopher-king to unrestrained democracy. Be charitable to others within one's means
The role of leaders
Aristotle Cicero believed that leaders who defy natural law are tyrants.
Natural law The role of reason
Natural justice was
Cicero believed that reason is the basis for understanding the
- valid everywhere and was not dependent on people's thoughts.
natural law, ourselves, and nature. He also believed that reason is
- not always the same as what was considered just by law.
what allows us to enact true justice.
Justice
- Justice was treating equals equally and unequals unequally.
- People should receive what they deserve based on their merits St. Thomas Aquinas
and demerits. St. Thomas Aquinas's legal philosophy is based on the idea that
Law as order law is an ordinance of reason that serves the common good:
- law was a type of order that provided a framework of rules and Definition
institutions for society. Law is an ordinance of reason for the common good, made by the
Law's purpose proper authority, and promulgated
- law was to make people good and righteous, and to serve the Characteristics
common interest.
Laws must be reasonable, directed toward the common good, Charles De Montesquieu
made by someone who cares for the community, and
Jean-Jacques Rousseau
promulgated
Immanuel Kant
Classification
Hugo Grotius
Aquinas divided law into three major sections: Eternal or Divine
Law, Natural Law, and Human Law Friedrich Carl von Savigny
Human Law Georg Wilhelm Friedrich Hegel
Derived from natural law by the use of human reason, and must
be in conformity with the Divine and natural laws
Aquinas also believed that law differs from counsel because it
has coercive power. He condemned usury, which he believed
exceeded the ius that justice requires to exist between
individuals.
Thomas Hobbes
Thomas Hobbes (1588–1679) was a philosopher who developed
a theory of law based on the idea that law is a command and a
social fact, and that it has a tenuous connection to moral norms.
His theory is considered the foundation of legal positivism, which
has been the dominant philosophical theory of law since the 17th
century. Here are some of Hobbes's ideas about law:
Law is a command
Hobbes believed that law is a command from one party to
another, who is obligated to obey. In civil law, the sovereign is the
commanding party and the subject is the party that obeys.
Law is a social fact
Hobbes believed that law is a social fact, and that it has a
tenuous connection to moral norms.
The sovereign defines the law of nature
Hobbes believed that the laws of nature only become binding
when the sovereign defines and commands them.
The sovereign is the rightful judge
Hobbes believed that the sovereign is the only rightful judge in
civil society, and that the sovereign's decisions are final.
Laws define justice
Hobbes believed that laws define justice by prescribing what
people should and should not do.
Laws should be readily available
Hobbes believed that laws should be readily available for people
to scrutinize, so that they can know what they are required to do.
Hobbes's theory of law challenged the common lawyers' view that
the rule of law required a specialist set of learned men to interpret
legal values.
John Locke
V. KINDS OF LAW, HISTORY & DEVELOPMENT
Criminal Law
Civil Law
Remedial Law
Labor Law
Political Law
