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Theory of Law

As a component of Philosophy of Law, theory of law attempts to answer the


following questions:
What is Law?
What is the nature of law?
What justifies law?

Legal Theory
Within the domain of law and jurisprudence
More on legal or judicial reasoning or legal thinking and justification;
May also be called applied philosophy of law;
Others refer to this as properly called jurisprudence (as distinguished from
case law)
In most cases, the study of theory of law and legal theories is
interrelated.

*Jurisprudence Legal reasoning, mental processes, judges


*Case Law decisions of courts, body of decisions of the supreme court
*Ponente Supreme court; Ponentia (decision written by the Ponente)
*Formalism Legal positivism (Legal theory of law)
*Legal positivism interrelated with the legal theory of formalism

Ours is a government of LAWS and not of men


Preamble: And to secure to ourselves the blessings of democracy under
the rule of LAW, and a regime of truth, justice, freedom
Common LAW vs. Civil LAW
International LAW as part of the LAW of the land
Family LAW, Criminal LAW, Commercial LAW
Foreign LAW vs. Domestic LAW
LAW of the case
.unless otherwise provided for by LAW
Ignorance of the LAW excuses no one from compliance therewith

* Felipe Sanchez Roman (1850-1916):


-

Law in general sense: the science of moral rules, founded on the rational
nature of man, which govern his free activity, for the realization of the
individual and social ends, of a nature both demandable and reciprocal.

Law in its specific sense: a rule of conduct, just, obligatory, promulgated


by the competent authority for the common good of a people or nation, which
constitutes an obligatory rule of conduct for all its members.

* St. Thomas Aquinas (1225-1274): (Summa Theologica)

Law is an ordinance of reason ordered towards the common good,


promulgated by him who has charge of the community

Law is a rational standard for conduct

* Hans Kelsen (Pure Theory of Law, 1934; General Theory of Law and
State, 1945):
-

Law is an order of human behavior.

An order is a system of rules. Law is not, as it is sometimes said, a rule. It is


a set of rules having the kind of unity we understand by a system.

Law, along with morals and religion, is a social phenomenon that has its
own criteria.

* Oliver Wendell Holmes, Jr. (The Path of the Law, 10 Harvard Law
Review 457, 1897):
-

Law is a body of dogma or systematized prediction

The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law

On law and morality


- The Bad Man Theory (The law is what the bad man think it is)
Oliver Wendell Holmes, Jr.s The Bad Man Theory (also known as Prediction
Memory):
If you want to know the law and nothing else, you must look at it as
a bad man, who cares only for material consequences which such
knowledge enables him to predict, not as a good one, who finds his
reasons for conduct, whether inside the law or outside of it, in the vaguer
concept of consciences.
General Classifications of Law
* JURAL LAW
1. PARTICULAR SENSE (specific rule of a statute or court opinion)
2. COLLECTIVE SENSE (branch of law or system)
3. ABSTARCT SENSE (precepts and ideals)
* NON-JURAL LAW
1. Divine Law
2. Natural Law
3. Moral Law
4. Physical Law
(Crisolito Pascual, Introduction to Legal Philosophy)
Major Legal Theories

Natural Law Theory


Legal Positivism
Legal Realism
Legal Formalism
Constructivism
Critical Legal Studies (CLS)

Natural Law Theory


Traditional Natural Law Theory suggests that the validity of laws (that are
man-made) is tested on the basis of some higher law, such as reason,
morality, or divine law. (Cicero, Plato, Aquinas, etc.)
Modern Natural Law Theory assails the validity of legal positivists
propositions. Because this theory is more refutations to legal positivists,
rather than its relation to the thinking of Aquinas, etc., this is sometimes
called modern natural law theory.
Traditional Natural Law Theory
*Cicero [106 BC -43 BC] (Republic):
TRUE LAW IS RIGHT REASON IN AGREEMENT WITH NATURE; IT IS OF
UNIVERSAL APPLICATION, UNCHANGING AND EVERLASTING; IT IS A SIN
TO TRY TO LTER THIS LAW NOR ISIT ALLOWABLE TO ATTEMPT TO REPEAL
ANY PART OF IT, AND IT IS IMPOSSIBLE TO ABOLISH IT ENTIRELY
- Cicero, therefore, believes that some norms are INHERENT and
UNIVERSAL.
*St. Thomas Aquinas [1225-1274]:
- Positive laws that are just HAVE THE POWER OF BINDING IN
CONSCIENCE.
-

A just law is one that is consistent with natural law, that is, it is
ORDERED TO THE COMMON GOOD.

EVERY HUMAN LAW HAS JUST SO MUCH OF THE NATURE OF LAW, AS


IT IS DERIVED FROM THE NATURE OF LAW. BUT IF ANY POINT IT
DEFLECTS FROM THE LAWOF NATURE, IT IS NO LONGER A LAW BUT A
PERVERSION OF LAW

Modern Natural Law Theory


*Lon Fuller (The Morality of Law, 1964):
-

Law is the THE ENTERPRISE OF SUBJECTING HUMAN CONDUCT TO


THE GOVERNANCE OF RULES
Law is seen as guiding principle, a tool, a means to an end.
To be called law, it must comply with certain criteria (INTERNAL
MORALITY): laws must be general, promulgated (announced), should not
be retroactive, understandable, not contradictory, should require reasonable
conduct, constant through time, administered as announced.

*Ronald Dworkin: (Laws Empire [1986]; Taking Rights Seriously [1978] [Political
and Moral Right Theory]
-

Laws include not just the norms found in treaties, customs, constitutions,
statutes, and cases, but also moral principles that provide the best
justification for the norms found there.

He observes that the things justified by moral principles are socially


constructed but the justifications (arguments) themselves are not.

He offers interpretative approach to law such that for him legal


claims are interpretative judgements and therefore combine
backward-and-forward-looking elements.

LEGAL POSITIVISM
* Presupposes two principles:
1. Law is a social fact or convention;
2. There is no necessary connection between law and morality (separation of
law and morality [Separability Thesis]).
*T. Hobbes, J. Bentham and J. Austin
-

Laws are constructed from commands, threats, and obedience.

Laws are handed down by a sovereign backed by threats of force.

The sovereign is a person or group who enjoys the habitual obedience of


most others but does not habitually obey anyone else (Leslie Green)

*John Austin (Father of Legal Positivism) [1790-1859]:


The existence of law is one thing; its merit or demerit is another.
Whether it be or not be is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry. A law, which
actually exists, is a law, though we happen to dislike it, or though it vary
from the text, by which we regulate our approbation and disapprobation.

*H. L. A. Hart (The Concept of Law, 1961, 1994, 2012):


-

Hart believes that anything in the law is there because some person or group
put it there, intentionally or accidentally; it all has history and it can be
changed; is either known or knowable; some of our laws have good

justifications and some do not, and justifications do not anyway suffice to


make law. To do that, we need human intervention: orders need to be given,
rules to be applied, decisions to be taken, customs to emerge, or
justifications to be endorsed or asserted. Laws to Hart, are posited (fixed).
[Leslie Green on H. L. A. Harts The Concept of Law).
-

Contrary to the view of Hobbes, Bentham and Austin, H. L. A. Hart does not
believe that laws are but commands from a sovereign. Hart speaks of laws as
consisting of rules, including practices and customs. He believes that there
are laws that are not coercively enforced (sanction-free laws).

H. L. A. Hart believes that all legal systems have Primary rules and
Secondary Rules.

*Hans Kelsen (Pure Theory of Law, 1967)


-

Kelsen is a Positivist Theorist, but claims that while laws were posited,
there were presuppositions to laws that made them valid (by
validity, Kelsen refers to acceptability of laws by the governed).

Kelsen believes in the idea that there is a hierarchy of norms beginning


from the Basic Norm where all other norms are related to each other.

Positivist: Law and Morality are separate


*H. L. A. Hart (The Concept of Law, 1961, 1994, 2012):
There is no necessary connection between law and morals
It is in no sense a necessary truth that laws reproduce or satisfy
certain demands of morality
*Leslie Green on H. L. A. Harts The Concept of Law:
The fact that a policy would be just, wise, efficient, or prudent is
never sufficient reason for thinking that it is actually the law, and the fact
that it is unjust, unwise, inefficient or imprudent is never sufficient reason
for doubting it. According to positivism, law is a matter of what has been
posited (ordered, decided, practiced, tolerated, etc.).

*Emmanuel Kant: (Metaphysical First Principles of the Doctrine of Right)


However well-disposed and law-abiding men might be. . .individual
men, people and states can never be secure against violence from one
another, since each has its own right to do what seems right and good to
it, and not be dependent upon anothers opinion about this. So, unless it
wants to renounce any concepts of Right, the first thing it has to resolve
upon is the principle that it must leave the state of nature, in which each

follows its own judgement, unite itself with all others (with which it cannot
avoid interacting), subject itself to a public lawful external coercion, and
so enter into a condition in which what is to be recognized as belonging to
it is determined by law.
Legal Realism (Skepticism)

American Theory of Law (led by O.W. Holmes, Jr.)


Legal Realists take a realistic look at how judges decide cases, at what the
courtsdo in fact (O.W. Holmes, Jr.)
Lawyers recognize that judges are influenced by more than legal rules; they
decide cases according to how that facts of the cases strike them; that
judges openly consider the policy implications of legal rules and decisions.
(Brian Leiter)
Law and is in some point rationally indeterminate;
Distinctly American: The Constitution is what the Supreme Court says it is.
President Eisenhower
Legal Realist often criticize Formalism (of Christopher Langdell) in law.
American Legal Realists argue that, unlike classical legal theorists, legal
reasoning is not independent from moral and political considerations.
Holmes believes that lawyers and judges are not logicians and
mathematicians. The life of the law has not been logic: it has been
experience. Necessities of the time, the prevalent moral and political
theories, institutions of public policy, and even the prejudices which judges
share with their fellow-men, better determine the rules by which men should
be governed.
Legal Realists are often criticized for favoring Judicial Activism (as opposed
to Judicial Restraint), where judges base their decisions on their personal
and political considerations rather than the law.
Legal rules and reasons figure simply as post hoc rationalizations for
decisions reached on the basis of non-legal considerations. (Brian Leiter)

Legal Formalism
A positivist theory of law, it focuses on the role of judges, that they must be
constrained in interpreting and applying the law. It is a theory of legal
justification.
For a formalist, a law is already the product of normative and policy
consideration in the formation of the law. Hence, a judge should not say what
the law should be but should confine itself to what the law is.
*Justice Antonin Scalia (A Matter of Interpretation, 1997):
Of all the criticism leveled against textualism, the most mindless is
that it is formalist. The answer to that is, of course its formalistic! The
rule of law is about form. . . A murderer has been caught with blood on his
hands, bending over the body of his victim; a neighbor with a video
camera has filmed the crime and the murderer has confessed in writing
and on videotape. We nonetheless insist that before the state can punish
the miscreant, it must conduct a full-dress criminal trial that results in a

verdict of guilty. Is that not formalism? Long live formalism! It is what


makes us a government of laws and not of men.

Constructivism
Advanced by Ronal Dworkin, this legal theory argues that judges decide,
not because it is what the law mandates, but because it is what is required by
some standards of morality or justice that made up or formed the norm
or law, the same standards that provide for the justification of the norm.
See Riggs vs. Palmer (US CA Case, 1889)
Ronald Dworkins Theory is also called Interpretivism
Critical Legal Studies (CLS)
CLS advocates believe in the inadequacy of law or emptiness of the law;
that statutes and case law cannot definitely determine the outcome of the
case (legal indeterminacy);
Seeing rights as correlative (every entitlement of right is limited by the
competing rights of others), CLS argued that the liberal ideals of freedom
cannot actually be realized in a legal regime and that efforts to realize them
will only result in doctrines that will always remain debatable.
The grant of property right (in instrumentalism), simply confers power
over others = coercion of consent.
CLS also believes that law is politics. (Marxist Theory)

What Justifies Law?


Why

obey the law?


Is it because of the content of the command?
Is it because of the nature of the source of the command?
Is it because of the process of making or issuing the commands?

Why the theories on political authority?


Because anarchists ask
Anarchists believe that each person has a duty to act on the basis of his own
moral assessment of right and wrong and has the duty to reflect on what is
right and wrong in each particular instance of action.----duty to act
autonomously is incompatible with duty of obeying political authority.
(Wolff)
Anarchists also believe that each person has a right not to be bound by the
states commands. (Simmons; Green)
The philosophical anarchist then argues that only if a person consents to
being bound to the political authority can the person actually be bound. And
because it is impossible to obtain every consent, no state is legitimate and
perhaps no state can ever be legitimate. (does not have the right to rule)
But, it does not suggest that one must never obey the state.
The Consent Theory

A political authority is legitimate only if it has the consent of those who are
subject to its commands. (Necessary condition to legitimacy but not
necessarily the sufficient condition)
Social Contract Theorists
- Hobbes - - - absolute authority
- Locke - - - limited authority
- Rousseau - - - authority is the general will, popular sovereignty is
inalienable, cannot be transferred.

The problem in Consent Theory


How to determine whether there is really consent (tacit vs. express) (is
silence consent?)
When is consent given and how?
How does the giving of consent legitimize political authority? (necessary
condition)
Locke said consent is given in the hypothetical state of nature.
Instrumentalist Theory
authoritative directives should be based on reasons which already
independently apply to the subjects of the directives and are relevant to their
action in the circumstances covered by the directive (Raz, 1986)
According to Rax, what should guide government decisions about what
commands to give subjects is what the subjects already have reason
to do.
A law that takes the place of reason becomes legitimate and binding.
Reasonable Consensus Theory
The basic principles that regulate the coercive institutions should be ones
that the reasonable members can agree to (Rawls, 1996)
The liberal state must commit itself to the ideal of public reason.
John Rawls argues that the liberal principle of political legitimacy requires
that coercive institutions be so structured that they accord with the
reasonable views of the members of the society. As long as they do so they
have the right to impose duties on their members.
[See: Rawls Political Liberalism]
Citizens do not have to agree on everything but only on those principles that
apply to the basic structure of society.
Associative Obligations Theory
A political society can have legitimate authority even if it is not a voluntary
association and even if
there is a disagreement on many political principles.
(Dworkin)
Models: family, friendship
Dworkin argues that legitimate political authority arises as a consequence of
the acquisition on the part of members of a political society of obligations to
obey the rules of a genuine associative community.
Ronald Dworkin, in his Laws Empire [1986] argued that the obligation to
obey the law is, an associative obligation.

Associative obligations, for Dworkin, refer to special responsibilities [that]


social practice attaches to membership in some biological or social
group, like the responsibilities of family or friends or neighbors.
Democratic Theories
When there are disagreements among persons about how to structure their
shared world together and it is important to structure that world together, the
way to choose the shared aspects of society is by means of a decision making
process that is fair to the interests and opinions of each of the members.
When an outcome is democratically chosen and some people disagree with
the outcome, as some inevitably will, they still have a duty to go along with
the decision because otherwise they would be treating the others unfairly
majority rules

Habermas Theory
THE ONLY LAW THAT COUNTS AS LEGITIMATE IS ONE THAT COULD
BE RATIONALLY ACCEPTED BY ALL CITIZENS IN A DISCURSIVE
PROCESS OF OPINION-AND WILL-FORMATION. (procedural
conditions for rational will-formation)
In analyzing legitimacy of the law, Habermas first talked about a system
of rights that mediates two related tensions: between private and public
autonomy, and between basic rights and popular sovereignty. But these
rights must be justified and made legitimate through a legislative
procedure that is based on the principle of popular sovereignty.
KINDS OF LAWS
CLASSIFICATION OF LAW
I.
NATURAL LAW
This derives its force and authority from God. It is superior to other laws. It
is binding upon the whole world and in all countries.
II.

HUMAN POSITIVE LAW


This law is promulgated expressly or indirectly by competent human
authority for the common good, and usually, but not necessarily, imposing
sanctions in case of disobedience.

I. KINDS OF NATURAL LAW


Physical Law Universal rule of action that governs the conduct and
movement of things which are non-free and material.
Moral Law Set of rules which establishes what is right and what is wrong
as dictated by the human conscience.
Divine Law
a) Divine Positive Law, i.e. Ten Commandments
b) Divine Human Positive La, i.e. Commandments of the Church
II. KINDS OF HUMAN POSITIVE LAW

According to force and effect:


1. Mandatory and/or Prohibitory Laws those which have to be
complied with, because they are expressive of public policy:
disobedience is punished either by direct penalties or by
considering an act or contract void.
2. Permissive or suppletory Laws those which may be deviated
from, if the individual so desires.

According to the scope or content of the law:


1. Public Law that which governs the relations of the individual with
the State or ruler or community as a whole. (This includes Political Law,
Criminal Law, and Law on Taxation)
2. Private Law that which regulates the relations of the members of a
community with one another. (This consists of Civil Law, Labor Law,
and Commercial Law)

According to whether a right is given, or merely the procedure for


enforcement is laid down:
1. Substantive Law that which establishes rights and duties.
2. Remedial (or procedural or adjective law) that which prescribes
the manner of enforcing legal rights and claims.

POLITICAL LAW That branch of public law which deals with the organization and
operations of the
governmental organs of the state and defines the relations of
the state with the
inhabitants of the territory.
It consists, among others, of:
Constitutional Laws I & II

Administrative Law, Law on Public Officers & Election Laws

Public International Law

CRIMINAL LAW That branch of law which defines offenses and specify the
corresponding penalties
therefor.
It consists, among others, of:
Criminal Law I

Criminal Law II

TAXATION That branch of law which deals with the imposition and collection of
taxes.
It consists, among others, of:
Taxation I

Taxation II

CIVIL LAW That branch of law which every particular nation or state has
established peculiarly for
itself. This law concerns with civil or private rights and remedies, as
contrasted to
criminal law.
It consists, among other, of:
Persons and Family Relations

Property

Obligations & Contracts

Succession

Sales

Credit Transactions

Agency, Trust and Partnership

Torts & Damages

Transportation Law

LABOR LAWS That branch of law which deals with the relationship between the
employer and the
Employee, as well as the working conditions, wages, fringe
benefits, grievances and
Association of employees.
It consists, among others, of:
Labor Law I

Labor Law II

COMMERCIAL LAW Body of law that applies to the rights, relations and conduct
or persons and
Businesses engaged in commerce, merchandising and
trade.

It consists, among others, of:


Corporation Law

Negotiable Instruments Law

REMEDIAL LAW It refers to the means and methods of setting the courts in
motion, making facts
known to them and effectuating their judgements.
It consists, among others, of:
Civil Procedure

Criminal Procedure

Evidence

Special Proceedings

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