Legal Philosophy

Atty. David Robert C. Aquino, CSEE

FINAL EXAMS
Instructions:
a) Answer the all questions directly, clearly and concisely.
b) Indicate in all your answers, which theory/approach each question pertains and under what area of
Philippine law the issue raised would more likely be felt.
1. What was the principal premise of Dworkin in attacking Harts version? Is there any way to establish
a middle ground between their two conflicting theories? (5%)
2. Is there any flaw to Thomas Aquinas premise that there is in us a natural law? Wouldnt you agree
that the more a man is free, the less he is under the law? (5%)
3. How would you explain Austins premise that - considered as abstracted from the command and the duty
which it enforces, the evil to be incurred by disobedience is frequently styled a punishment? (10%)
4. What constitutes the law? Who is the principal proponent that espoused this line of questioning? (2%)
5. According to one theory - the foundation of a legal system consists of the situation in which the
majority of a social group habitually obey the orders backed by threats of the sovereign persons, who
themselves habitually obey no one. What is this theory? (4%)
a. Who is the principal proponent of this phrase? How did he support his premise? (2%)
b. How will you reconcile this argument with that of Harts principal premise? (2%)
6. A orders B to hand over his money and threatens to shoot him if he does not comply. According to the
theory of coercive orders this situation illustrates the notion of obligation or duty in general. Is there a
legal obligation in this situation? When we say B was obliged to hand over his money, is this the
contemplation of what an obligation is all about? Would this situation run counter to Harts new
conception of law? Why? (8%)
a. Is this what we call the loaded gun theory? Why? (2%)
7. Does civil disobedience require that the civilly disobedient act breach the same law it is being
protested? If so, would this no longer be considered civil disobedience but a crime? How will you
reconcile this situation with the theory of justice that Rawls espouses - will there be a middle ground
or not? Why? (10%)
8. Is there any way to reconcile the positivist approach with the interpretative approach? What theory/
approach will you use a a platform to reconcile them? How? (10%)
9. What is conscientious refusal? What approach/theory does this work best? (5%)
10. Why does Hart emphatically reject the command theory of law? How will you convince him to
reconsider his position? (5%)
11. As we are all familiar in how a bill becomes a law, identify the theories/approaches at play in each
step of the legislative process down to the transformation of the bill into a law. (7%)
a. If the President decides to allow a bill to lapse into law, what theory is at play here? Why? (3%)
12. When a case is not covered by a clear rule, a judge must exercise his discretion to decide that case by
what amounts to a fresh piece of legislation. What is the theory/approach behind this statement? (2%)
a. Would this act be tantamount to judicial legislation? If so, how will you justify it? (5%)
b. If if would be judicial legislation - would the statement now be correct or incorrect? Why? (3%)