Some Additional Class Notes for Legal Theory: Legal Theory in the Light of Professor Carmelo V.

Sison To the question, Is law necessary? Lloyd says that because of the nature of man, whether good, bad, or a mixture of both, law will always be necessary. This is because the law is not limited to penali ing e!il acts" but is also a !enue to recogni e rights and duties of persons. To the question, #hat is the effect of law to freedom? Lloyd says that law is a rule or measure by which we are induced to act or restrains us from acting. $n the one hand, it could be said that law restricts our freedom because it induces as from acting or restrains us from acting. %ut the freedom contemplated in such a situation is the concept of absolute freedom. #e, howe!er, learned that this concept of absolute freedom does not exist in a society. &or in a society, freedom is always seen side'by'side with $rder. $n the other hand, it could be said that law expands freedom" because without law, the strong will simply o!erpower the wea(. This is where your )onstitution comes in. The )onstitution is a guarantee that e!ery member of society is able to exercise his freedom compatible with e!eryone else. To the question, Is it the case that where is law, there is force? *ccording to the professor, the connection between law and force is a misnomer. #hat must be emphasi ed is the connection between law and authority. In fact, the professor points to the fact that Lloyd himself did not pay attention to force, but rather to authority +and its relation to legitimacy, as discussed in the re!iewer. To the question, Is customs an essential characteristic of law? The professor, in answering this question, introduced to us the existence of a school of thought that belie!es that customs and history are essential characteristics of law" law

is common consciousness. This is the historical school of -urisprudence. *ccording to this school, the source of law is custom. The pioneers of this school are .a!igny and /aine. +.ide note0 The structure of the 1erman )i!il )ode was patterned after this school of thought. .a!igny strongly re-ected the ideology of the &rench )i!il )ode, which is that rationality can be the basis of the creation of a complete and systematic law. Instead, .a!igny stated that there can be no adequate law that is based solely on rationality. 2e, instead, push forth a campaign to loo( into the customs and history of the 1erman people in the creation of their )i!il )ode,. .ome discussion of etymology can be pro!ed useful. The concept of custom can be traced to two ancient words, one 1ree( and one Latin. Ethos, which is the 1ree( origin of ethics, directly translates to customs. Mores, which is the Latin origin of morals, also translates to customs. 3ltimately, the professor defines customs as a pattern of conduct with a feeling of bond. .ome notes on *quinas The professor is fond of definitions. %eing an *ristotelian, he always begins his analysis from this starting point. Let4s loo( at some of these definitions in connection with *quinas4 Treatise on Law. It must be remembered that law for *quinas is the ordinance of reason. $rdinance is a practical directi!e. 5eason is the operation of the intellect. #hat is reasonable is that which follows the dictate of reason" or, in *ristotle, that which follows its end or purpose +teleological,. *nd that the law must be promulgated by one who has care for the community for the common good. 6romulgation implies the law being public. #hile one who has care for the community refers ideally to, according to 6rofessor .ison, all men +In fact, professor .ison argues that *quinas4 definition of law is one of the most democratic" he belie!es that e!ery man (nows what is good for himself and must decide for himself,. &inally, common good is simply seen as the end or the telos of the .tate. )ommon good is to the .tate as 2appiness is for the Indi!idual.

The professor then proceeds with the second le!el of *ristotelian analysis, which is that of di!ision +.o, definition then di!ision,. *ccording to the professor, reason has two (inds0 +7, theoretical or speculati!e, which sees (nowledge as its end" and +8, practical, which sees action as an end. 2e further di!ided practical reason into the three types of human beings0 +7, ma(er, which focuses on application of 8nd techniques to produce something" +8, thin(er, which see(s (nowledge for (nowledge4s sa(e" and +9, doer, which is concerned with what men ought to do. Theories of the .tate0 * /odel 6lato4s /odel0 /an4s Insufficiency ': ;eed +.ur!i!al, ': .tate +2ence the quote, necessity is the mother of in!ention, *ristotle4s /odel0 /an and #oman ': &amily ': )ommunity ': .tate 2obbes4 /odel0 .tate of ;ature as .tate of #ar ': Le!iathan +.tate, and its promise of protection Loc(e4s /odel0 .tate of ;ature ': 1reat Incon!enience ': .tate 2. L. *. 2art on Law and /orality The professor emphasi ed that, for 2art, law and morality has no necessary connection. This is simply brought about by what we percei!e as their relation based on the fi!e truisms about human beings0 +7, human !ulnerability" +8, approximate equality" +9, limited altruism" +<, limited resources" and +=, limited understanding and strength of will. Law and >ustice0 In 1eneral ?uring the ancient times, -ustice means the same thing as morals. The 5oman >urisconsult 3lpian defined -ustice as justia est constans et perpetua voluntas ius suum cuique tribuens +>ustice is the constant and perpetual will to

gi!e e!ery man his due @rightA,. This is further summari ed into honeste vivere, alterum non laedere, suum cuique tribuere +li!e honestly, in-ure no man, and gi!e e!ery man his due @rightA,. 6rofessor .ison, tried to relate the notion of due process with that of >ustice. &or him, the phrase to gi!e in the definition of >ustice refers to procedural due process" while the phrase e!ery man his due or right refers to substanti!e due process. The professor also introduced us to the di!ision made by *ristotle of >ustice. &or *ristotle, >ustice is di!ided into two0 +7, 1eneral, >ustice in the .tate" and +8, 6articular, >ustice among equals. 6articular >ustice is further di!ided into three0 +7, ?istributi!e, which is the distribution of merit, honor, and compensation" +8, )ommutati!e, which is correcti!e -ustice" and +9, .ocial >ustice, which is the function of the state to create social conditions where e!eryone is gi!en equal opportunity to de!elop himself. *s time goes by, the concept of >ustice has e!ol!ed. &or example, >ohn 5awls sees >ustices as &airness" Immanuel Bant as 5ight. *ccording to the professor, howe!er, the current notion of -ustice as equality is inadequate. &or him, -ustice is both equality and substance. It is in the substance part of -ustice where /ortimer *dler4s discussion of real and apparent goods will play a (ey part. *dler proposes two (inds of goods0 +7, real good, which what you ought to desire as determined by human nature" and +8, apparent good, which can be summed up simply as your wants in life. The substance of -ustice is being able to pro!ide e!eryone of what he or she deser!es. *nd for *dler, what one deser!es are the real goods. 2ence, >ustice is equality plus gi!ing e!eryone what he or she deser!es in the form of real goods. It must also be noted that the connection between law and -ustice, as some schools of thought will argue, is that law is a means towards the achie!ement of >ustice. >ustice is not simply a !irtue to oneself" but is a !irtue with another, i.e., with society. The !ery notion of >ustice is also connected with the concept of equity. Cquity is simply the -ustice of each

indi!idual case. Cquity mandates that one must loo( and examine the unique conditions surrounding the case and the indi!iduals in!ol!ed. Legal 6ositi!ism0 .ome ;otes 6ositi!ism began as a school of thought in sociology as expounded by *uguste )omte +.idenote0 The professor was disappointed with )omte because his last wor( focused on the religion of society,. It is a reaction or a mo!ement away from natural law. It focused on the role of the so!ereign in positing rules that will go!ern society. It is with this emphasis on the role of the so!ereign that we must loo( into the concept of so!ereignty. .o!ereignty was coined by &rench political theorist, >ean %odin. It is one of the four elements of a .tate +apart from 6eople, Territory, and 1o!ernment,. The current understanding of so!ereignty di!ides the concept into two0 +7, Internal, which is the relationship between the so!ereign and its sub-ects" and +8, Cxternal, which is the relationship between the so!ereign and other states. &or the professor, so!ereignty can be summed simply as the ability to ma(e final decisions. The next inquiry is, how then do we indentify the so!ereign? *ccording to *ustin, a so!ereign is a political superior where inferiors habitually obey. The so!ereign, in addition, is an entity that has not habit of obedience to anybody else. &or the professor, the so!ereign can also be seen in our )onstitution +6reamble0 #e, the so!ereign &ilipino people,...,. Legal 6ositi!ism0 The .tory The story of legal positi!ism began with >eremy %entham. >eremy %entham is (nown in Cngland as the Law 5eformer. *s a law reformer, he began to loo( at the problems plaguing the Cnglish legal system. The crux of the problem, according to him, is Cnglish Law4s reliance to natural law. 2e critici ed #illiam %lac(stone4s Commentaries on the Laws of England. *ccording to #illiam %lac(stone, Cnglish law is based on natural law. %ut, >eremy %entham belie!ed otherwise. &or him, natural law is non'

sense and is non'sense on stilts. In addition, he also critici ed the Cnglish penal law by calling it dog4s law because of its nature of waiting for people to !iolate laws and then imposing harsh penalties. These criticisms, amplified with %entham4s own moral theory +utilitarianism,, has lead %entham4s apprentice >ohn *ustin to de!elop his own theory of law. *ustin4s theory is also (nown as the Imperati!e Theory of Law. 3nder this theory, law is seen as the command of the so!ereign" the directi!e of a superior to inferiors under the threat of sanction if disobeyed +This is the theory that best explains the common law of Cngland according to professor .ison,. The theory of *ustin was found to be inadequate. This is the criticism of 2erbert Lionel *dolphus +2. L. *., 2art, a professor of >urisprudence at $xford 3ni!ersity. *ccording to 2art, *ustin4s theory is a framewor( that is limited only to explaining the criminal -ustice system. %ut, the truth is that law is not simply criminal law" it means a whole lot more. /oreo!er, 2art also saw the problem inherent in *ustin4s framewor(. 2e dare as(, #hat happens when the so!ereign dies? ?oes the law die with him? #hat happens to the habit of obedience toward that so!ereign? This has caused 2art to write his magnus opus, The )oncept of Law. &or 2art, law is a rule. Law is seen as the union of primary and secondary rules. #here primary rules are those that define one4s obligation to another +6rimary rules of obligation," while, secondary rules are those that confer power or create institutions that enact rules +.econdary rules of recognition,. +*ccording to 6rofessor .ison, howe!er, what 2art is contemplating here is that of a )onstitution, Legal 5ealism0 The 5ise *fter legal positi!ism came legal realism. Legal realism is often said to be part of a larger category, which is .ociological >urisprudence. .ociological -urisprudence sees law as a pragmatic system. It is concerned with what actually wor(s in practice. It stems from the definition gi!en by >ohn )hipman 1ray, a 2ar!ard professor, that law is a

decision. &or the sociological school, law is used for the benefit of society. It is the application of the law made by decision'ma(ers that ma(es a piece of legislation or -udicial decision law. This was further expounded by ?ean 5oscoe 6ound of 2ar!ard. 2e saw law as a process of social engineering. *nd that the law must ser!e to benefit society according to the ideology that en!elops it. &rom 6ound came many other legal realists such as Barl Llewelyn and 3nited .tates .upreme )ourt *ssociate >ustice $li!er #endell 2olmes. Li(e 1ray, Barl Llewelyn emphasi ed that law is decision" but, it is a decision based on a dispute. In other words, there can be no real law without a dispute because it is the decision of that dispute that ma(es something law. In the same manner, $li!er #endell 2olmes !iewed law as a decision" but, as a decision of -udges. 2e concludes this in the celebrated sentence0 The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law. *fter the #orld #ar II, a new school has been formulated in the 2alls of Dale 3ni!ersity. The new school is called policy science. 6olicy science sees law as a process of authoritati!e decision where there is formal authority and is con-oined with by effecti!e control. The proponents of policy science are 2arold Lasswell, a Dale political scientist, and #. /. 5eisman. The proposed that decision'ma(ing is a process of choosing which !alues to promote. Ealues, according to professor .ison, can be equated with wants, i.e., ob-ects of human desires. &or the policy science school, there is a difference with law as blac('letter law +written law, and law as applied to reality. In fact, it sees law as composed of two parts0 +7, operational code, or laws laid down by those in authority +/yth," and +8, enforcement, or acts done by public officials that reflects the decision of the policy'ma(er whether one /yth is lawful or not. %ut in the final analysis, howe!er, the policy science school admits that its one o!erarching !alue that must pre!ail among other !alues is that of human dignity.