PHILOSOPHY OF LAW AND THE NATURE OF MAN

PHILOSOPHY OF LAW (FR. FERRER, S.J.
)
1C BAQUILOD CASTAEDA GAITE MURAO
PREFACE
Law is one of the institutions that allows man to live in

civilized society.
Growth of civilization has generally been linked with:
gradual development of a system of legal
rules
machinery for regular and effective
enforcement
Laws do not exist in a vacuum but are found together with
moral codes of differing complexity or definiteness.
There is tension between law and moral codes.
The belief in a Moral Law has an impact on how man
sees actual law prevailing in his society.
Moral Law is a higher law by which mere
man-made laws can be judged
Higher laws can override or nullify certain
human laws in history.
The most vital issue of the modern state is the freedom of
the citizen and its preservation.
Relationship between law and liberty is a close one:
either used for tyranny or gives effect to freedoms
Functioning of law has been closely associated with the idea
of a sovereign state.
Social sciences hold the key to shedding light on the issues
of legal institutions and rendering modern solutions.
The nature of the judicial process must be studied to
understand legal reasoning and development.
IS LAW NECESSARY? A DIALOGUE

PHILOSOPHERS (BY SOMMER)
BETWEEN
TWO LEGAL
Aris and Bato, two legal philosophers who seem to be

representations of Aristotle and Plato
What would life be like without law? Is law
necessary?
Life without any law would be unrealistic and
exceedingly difficult.
Man needs law to live in society.
Life would be solitary, poor, nasty, brutish
and short. - Thomas Hobbes
Potshots against Lloyds approach:
Armchair philosophy - merely theoretical and
speculative ideas which do not deal with
realities and facts
Overstating the human nature argument - not
all men are prone to violence and theft
Human nature argument supposes
that all people are static in nature.
Discussion of representative laws leads to a
classification of laws:
Truly necessary laws (indispensable laws):
against theft, violence and potential
wrongdoers, guarantees private ownership
and compensation, redress of harm or broken
agreements
PHILOSOPHY OF LAW (FR. FERRER, S.J.)

Improves the quality of life in society

(necessary / useful laws): health, education,
public safety
Without these laws, life would be
wasteful and confusing.
Laws with debatable ends, not necessary
(convenient
laws):
religion,
morality,
convenience
The extent of mans freedom determines the quality
of his life in society. - John Stuart Mills
Law facilitates efficient social change.
Men learned in law assist the layman in knowing and
applying such laws.
It is not needed that laws are true, but they can stand
because they are needed.
CHAPTER 1: IS LAW NECESSARY?
Historically, law has been considered unnecessary by

ideologues and religious institutions
In every day and age, certain groups feel a certain
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
Forms ones outlook about the world, upon

mans relation to society and the world
Law has an ideological character
Two views on the nature of Man
Punitive view
Man as demon, intrinsically evil
Law as indispensable restraint; society
impossible without law
Punishment, not rehabilitation
Positivist view
Man as angel, intrinsically good
Looks back to a Golden Age of
primeval innocence and simplicity
Defects arise from problems in
society,
especially
law
and
government
Rehabilitation rather than punishment
The focus of current legal systems is law reform
rather than eliminating it completely.
Examples of the two views of human nature

Type of Philosopher
Stance
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 devils workshop which
followed the logic of fish (rule of the stronger)
4. Bodin
Occidental
YES
Mans 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.
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.
1. Rosseau
10. Augustine
Attributable Passage

11. Aristotle
Occidental
YES
Christian Church Father
QUALIFIED YES
State is not a necessary evil but a natural foundation for

human welfare. Law is a guide for mans good / social
impulses towards the realization of his goals.
Occidental
QUALIFIED NO
Rational harmony ruled over by benevolent philosopherkings 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 mans sinful nature but from
the effects of oppressive human institutions. Moral and
social norms rather than coercion.
16. Bakunin and Kropotkin
NO
The state, law, coercion and private property were the

enemies of human happiness and welfare.
17. Tolstoy
QUALIFIED NO
12. St. Thomas Aquinas
13. Plato
Man has aggressive drives curbed by laws.
Anarchy based on early Christian communities, nonviolence and renunciation of private property
Anecdote 1: The Stolen Waistcoat
All have an equal right to anyones property. The colony
did not survive.
Anecdote 2: Landownership
A man with a title appears. The colony is sent out and
breaks up.

18. Karl Marx
QUALIFIED NO
19. Elliot Smith
NO
20. Herbert Read
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.
Man is whole, kind and well-intentioned. Civilization
creates artificial aims which sow discord and envy.
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
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.

CHAPTER 2: LAW AND FORCE
De jure
A-F=Law+Order
AF
De facto
F-A=Law+Order
Rule of law
A+F=Law +Order
Myth of Anu and Enlil

Two gods singled out in reverence
Anu
God of the sky
Issued decrees which commanded
obedience by the fact of having
emanated from divine authority
Obedience as necessity, however
there is no guarantee of automatic
obedience
Symbol of authority
Enlil
God of the storm

Power of compulsion, god of coercion
Executes the sentences of the gods
and leads them in war
Myths reflect fundamental human attitudes and
purposes
Humans need order
Order demands two elements: authority and
force
Lack of authority does not allow public order
to flourish
Lack of force disallows the universe to enter
statehood
Order
of
the
universe
reflected
Mesopotamian society
Myths gave a cosmological foundation to link
legitimate authority with force on Earth
The idea of gods using force to impose their
authority is a common feature in less
sophisticated stages of religion
Authority
Law requires obedience but not just simple
obedience.
Not just willing or unwilling compliance
The notion of authority entails that some person is
entitled to require obedience of others regardless

of whether the particular order of rule is acceptable

or not
It may be a collective organization, not a
person.
Peculiar authority or mystique surrounding
the person / institution
Inspires a feeling of legitimate subordination
What is the source of obligation which is apparently
imposed or assumed to be imposed on the subject
party?
Preliminary answer: moral obligation. There
is a connection between legitimate authority
and moral obligation. It imposes a rule which
calls for voluntary adherence by virtue of
inherent rightness. Moral duty to obey the law
because the law represents legitimate
authority.
Problem: Carrying the argument too
far may lead to erroneous belief that
legitimacy and morality can be
equated. E.g. divine right of kings
Rebellion: discrediting of leaders as
immoral; establishment of a social
contract
Max Webers ideal types
Not a historical evaluation of societies or a
Platonic ideal but a representation of full
development of possibilities in social

organizations
Typological / classificatory, rather than
developmental
Simplifications
in
which
sociological
investigation can be conducted
Societies can have characteristics of one or
more of these ideal types
Forms
of
authority
or
legitimate
domination
Charismatic
Charisma Greek for grace
Personal ascendancy which
an individual may acquire in a
particular society which
confers an indisputable aura of

legitimacy over all his acts
Prototypes: Julius Caesar,
Alexander
the
Great,
Napoleon,
Hitler,
Stalin,
Mussolini
Traditional Domination
While charismatic leadership
lies on a single person, his
death does not necessarily
extinguish charisma

Authority derived from the

personality of a leader may
pass on to an attenuated form
(e.g. descendants of a royal
line, from Jesus apostles to
the Catholic Church)
Institutionalization of practices,
continuity
Mass traditional customs that
are binding
Restricts the freedom of the
actual king in office
The king under the God and
Law (Bracton)
Legal Domination
A more developed form of
traditional domination
Misleading term in the sense
that it suggests that law only
arises in this type of authority
Charismatic leadership also
may
have
rules
(e.g.
Justinians
codification
of
Roman Law)
Traditional domination have
rules, but they are customary
rather than legislative.
Legal domination, is different,

however,
because
it
is
impersonal
and
legalistic.
Institutional
character
of
authority has displaced the
personal one.
Modern democratic state has
largely abandoned charismatic
leadership
in
favor
of
government
having
a
monopoly of authority.
This belief in legitimacy is one
that the modern state requires
to exist. It is a circular
argument: laws are legitimate
when enacted, enactment is
legitimate if it conforms to
rules
that
prescribe
procedures to be followed.
Necessary legal argument / fiction in order to
assure a functional society.
Authority rests firmly in belief in its legitimacy.
Force
Societies may exist with no authority but ruled solely
by force without descending into anarchy.
However, the state of war of upheaval does not
persuade one to treat the law as force incarnate

Coercion seems to be necessary and is personified

by important institutions and persons
Moral arguments against force
Force / violence is wrong in itself and a law
that ultimately rests on force offends morality
Force is the very negation of law and its use
indicates the breakdown of the rule of law
Problem:
Moralists only see moral law as the
only law
Lack of establishment that morality
excludes coercion
It must be proven that law has an
actual relationship with morality
Another argument against force stems from a
misunderstanding of the operation of law
Force is only incidental procedure, not
necessarily essential to the existence of the
law
Social contract as a necessary legal fiction
People obey because of consent, not
coercion
Replaced by universal suffrage where
individuals can adhere to the
operative system of government
Elimination of coercion as an element of law
and replacing it with voluntary consent /
acquiescence
Law can exist in its own right regardless if

force is used
Force in International Law
Force is a less pronounced practice in
international law
Laws are not enforceable by coercion
because there is a lack of regular
enforcement
Efforts for enforcement and coercion are
sometimes frowned upon on the international
scale (Suez, Belgian Congo, Nicaragua)
Legal Theorists and Force
Anti-coercionist position: Law can only be
described in terms of authority
A comprehensive conception of law must
recognize the interplay between authority and
force
Law is a highly flexible conception
Coercion is not an ideal type or an
oversimplification, however, categorizations
are needed for study
Ideal types are not seen in reality, but only
in a Utopia as a limiting concept.
There are infinite gradations of force, from
blood-feud to contempt of court
Legal Theory requires a dynamic rather than
a static approach to force in law.
Can We Dispense with Force?

Human society would not have flourished if

not for a measure of organized coercion
Aristotle: Man is a rational, political animal
but he has aggressive drives which must be
repressed to attain social discipline.
Freud:
Aggressive
drives
can
be
suppressed but not totally eliminated. Living
among men requires a repression of base
instincts. Man cannot get rid of these drives
but it is unlikely. Instead, societies are built
on coercion and instinctual renunciation.
There is a connection between coercion and
civilized society
De Maistre: Civil society is founded on the
hangman
Rules about Force
Laws of developed states: close and efficient
regulation of force
Attempt to overshadow force with authority by a
return to charismatic leadership
The view that force only becomes incidental is a
fatal illusion
Modern society has a massive organized
force that has a monopoly in the use of
violence.
State apparatus must be so big and
undefeatable that others will not dare resist it.
Only certain individual persons and

institutions have such powers (e.g. the
President, police, military-industrial complex)
The use of force requires that certain procedures
and standards are met to safeguard the people.
Not all rules should have penal consequences,
considering the tendency of modern society towards
defining duties without corresponding sanctions.
CHAPTER 3: LAW AND MORALS
Relation between law and morals is far from simple

Law and Religion
Divine origin and sanctity of laws
Law, morality and religion were inevitably interrelated
Lawgivers are mythical, semi-divine or heroic
The divine origin of laws lent authority to them
Moral duty to obey the law
Human penalties still existed. If humans could not
punish the crime, the divine would.
Polytheism offered flexibility in administration of justice.
One god may punish, one god may stay punishment.
Monotheism introduced a stern, inflexible Divine Will
where squabbles of gods would not mitigate the full
force of law. The whole of the law did not necessarily
come from the divine. Distinctions were made between
fundamental, unchanging laws and man-made laws
10

Aspect
HEBREW
GREEK
Monotheistic
Polytheistic
Prophetic writings. Prophets are those with

extraordinary charisma and passion for divine will
Oracles, priests
Divine Law
Imperative, obligatory and punitive
Fate, mysticism did not affect human laws
Human Law
May be decreed by kings and prophets anointed by

God. In case of conflict with divine law, the latter shall
govern.
Man-made laws may not always be reasonable or

valid. They must be subject to a higher law of
reason. Its validity is not subject to divine stipulation
What is law?
Law is simply the moral / religious law set down by

God through the prophets.
Law is a reasonable command needed for society to

flourish.
Irrational and mystical, a matter of faith
Rational order of the universe, ascertainable by

rational investigation; human reason
Obscurity of language, persuasion, limitless

interpretation leads to either rigid orthodoxy or
anarchy
----
If a law is immoral, it does not have to be obeyed.

God has the last word regarding law and justice.
Illustrated in the Apologia of Socrates in Platos

Crito: law, even if contrary to reason, must be
obeyed.
Form of religion
Language / mode of
transmission
Focus of the law

Dangers
Moral Duty to Obey the Law
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.
11
PHILOSOPHY OF LAW ((FR. FERRER, S.J.)

Relation of Law to Morals

o 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.
o 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
persuasion of an individual citizen that it was in error,
or that its courts were unjust or immoral, since the
state itself represents the very embodiment of
morality
oved to be so influential
his philosophy has proved
in relation to later totalitarian doctrines
o The limitations present in cases where morality was
in conflict with the provisions of positive law
the overriding
iding moral duty might to be to obey
the law until persuasion is effective tto bring
about legislative changes
there may still be extreme situations where
the law dictates acts of such patent
immorality
the moral duty is that of rejection,
rather, than obedience to the law
Intersection between law and morality is misleading where there is common ground between the two, there is
kind of identity
dimensional portrayal
o this is only two-dimensional
Law and morality reinforce and supplement each other
as part of the fabric of social life
o Moral codes, by recognizing that we ought generally
to refrain from such acts, supplement the force of law
which equally forbids them
o the moral duty to obey the law is generally accepted,
and plays an important role in establishing the
authority of the law and ensuring obedience to it
o similarity of normative
ative language that each employs both lays down that it is my duty to do this or do
that
dangerous in the sense that it connotes that
law must necessarily connote moral
obligation
12

Where Law and Morals Diverge

o Example : the law may condemn/punish sexual
immorality but there is a moral duty to save/preserve
life
o The law shrinks from pursuing what may
nevertheless be recognized as the authentic path of
morality
o Higher ethical attitude may not be sufficiently
embodied in popular sentiment to be productive of
legal action in conformity with it
only a small part of the population who have
the moral force to produce sufficient change
in popular sentiment
this brings the spread of more human moral
sentiments and standards
o Law deliberately prefers to abstain from supporting
the moral rule
machinery is too cumbersome
more social evil may be created than
prevented
John Stuart Mill: law should not intervene in
matters of private moral conduct more than
necessary to preserve public order and to
protect citizens against what is injurious and
offensive; there is a sphere of morality which
is best left to individual conscience
Criticism: criminal law depends for its
effectiveness on incorporating moral
standards and without its influence, enforcement

of such laws may get weaker
An Example from Modern Divorce Law
o Until 1969: grounds were based on matrimonial
offense (e.g. adultery, cruelty, desertion)
o Divorce Act of 1969 - sole ground was to be the
irretrievable breakdown of marriage
o It was difficult to set a test or standards to determine
whether the spouses should be allowed to divorce
it instructive to compare cases where a
decree has been granted applying a test
o One of the aims of legal process -> general
uniformity of result in cases of similar kind
applying various criteria to actual cases
coming before the courts
in the process, rational principles are
gradually developed which can be applied in
a multitude of differing situations without
sacrificing any substantial measure of justice
o Society is provided with a more subtle and
sophisticated means of bringing the law into
contact with the needs of current morality
The Ladies Directory Case
o The publisher of booklet giving information as to the
addresses, telephone numbers, and other particulars
of various prostitutes was held guilty of conspiring to
corrupt public morals
13

House of Lords : role of court as custodian of public
morals and its duty to preserve the moral welfare of
the state
it is up to the jury to ascertain the
requirement of public morals
Crime and Punishment
o if the law were to confine itself to a more limited
sociological objectives
eliminate moral judgments from criminal law
protect society and reform the prisoner
o Morality impinges upon law:
guilt is linked with the idea of moral
responsibility; morals reinforce the authority
of the law and duty to render obedience to its
decrees
responsibility in law - excluding the
possibility of guilt if there exists some
circumstances of excuse which causes us to
adjudge the accused not morally implicated in
the deed which constitutes the offence
mens rea - guilty mind; entails a
certain mental element
Circumstances which negative this
mental state may relieve the accused
of legal responsibility (exempting
circumstance)
punishment to be inflicted - by
eliminating moral responsibility, a
o
more rational form of sentencing

policy can operate
Compromise: retaining conception
of guilt and responsibility in relation
the actual commission of the offense,
but eliminating it from the
consideration of punishment
removes the burden of determining
the degree of punishment and its
possible psychological effects to the
convict
but would have to regard the
protection of the public - if his release
would involve serious peril to other
members of the public, the court is
required to detain him
release of the prisoner depends on
the level of danger he brings to the
public
if this would be effective, then criminal
law would be transmuted into an
inquiry into the facts of a particular
crime and the social, mental and other
aspects of the background of the
accused person, thus removing the
notion of responsibility
14

Conflicts Between Positive Law and the Moral Law

o 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
15

CHAPTER 4: NATURAL LAW AND NATURAL RIGHTS
Idea of two lawsone resting on human authority and the

other resting on natural or divine originhas a long history
and is still a prevalent belief
Meaning of Nature
o In early society and early forms of civilization, no
distinction was made between the natural world
and the world of human beings
o No distinction between natural physical laws and
decrees by gods and their representatives
Gods or supernatural spirits direct everything
in the universe
Nature as both inferior to and subject to the
latters control
Nature, at best, is how things or people may
normally be expected to be or behave
o Few people attained an approach to nature differing
to the abovementioned
Chinese did not arrive at the notion of fixed
physical laws of nature governing the
universe but rather, relied on the idea of
harmony
Chinese demonstrates that if the idea of the
will of gods as perpetual and capricious force
diminishes status of nature vis--vis the
supernatural
Chinese outlook places nature upon a

pedestal
New approach
o Emphasis on nature may be connected to JudeoChristian monotheism to combat capriciousness
of divine rule
o Nature as a fixed order and one which was entitled
to reverence since it was God-given
o God could thus be conceived as a divine lawgiver
Possibility of scientific approach to laws
as fixed principles governing the physical
world
No clear demarcation between unchangeable
order of nature laid down by God and pattern
of human conduct equally laid down to all
eternity
Early Greek Philosophers
o The scientific approach to nature also received a
vital contribution from the so-called pre-Socratic
philosophers
Main objective of pre-Socratic thinkers was to
explore the world of nature in order to find
some principle governing the universe
which would explain its structure or
functioning
16

Belief in rationalism, idea that the universe is
governed by intelligible laws grasped by the human
mind, arose
Mans nature is dictated by his instinct and
law curbs such instinct like mans sexual
urges
Plato and Aristotle
o Platos idealist philosophy
Justice as represented by the laws amount to
no more than a pale shadow of real justice
Justice as static and law and government as
rigid and inflexible
Plato has moved far from the position of his
master Socrates with his reverence for the
laws of the native land
o Aristotles naturalist philosophy
Aristotle gradually rejected the idealist
philosophy of Plato
Aristotle advocated for the development of
the realms of knowledge relying on
observation and experience
Nature as the capacity for the development
which is inherent in particular things
For Aristotle, justice may either be
conventional, or varying from state to state,
or natural, that is common to all mankind
o
Platonic and Aristotelian treatment of natural law and

natural justice are of particular relevance up to the
present time
Plato: nature as an ideal expressing the
fundamental aspiration of man if his full
potentialities are attained
Nature as ideal standard
Law or justice as ideals
Aristotle: nature as the way man behaves by
reason of his psycho-physical make up
Nature as fact or what man actually is
Stoic Philosophy
o History of natural law owes a great deal to stoic
philosophy arising after Aristotle
o Stoicism stressed the universality of human nature
Emphasis on reason as the essential
character of humanity
Universal law of nature ascertainable by
reason provided standard for justice and
man-made laws
o Idea of a common law applicable to all mankind
clearly afforded some concrete shape to the rather
abstract Stoic conception of a universal law of nature
Christianity and Natural Law
o Judaic view of law was that it represents Gods will
on Earth
o
17

Early Christians however, were taught to

despise things of this Earth and to expect
the destruction of this world for the
coming of Gods kingdom
Hence, while Earthly rulers had to be
obeyed, Earthly laws were mere civil
arrangements to address mans sinfulness
o At the same time, Christian writers recognized that
even in an imperfect world, there was a need for
justice as decreed by God
Justice as an inferior of that ultimate divine
justice
o Link between natural law and Christian theology
increased natural law authority compared to the
older Stoic law of nature
Natural law was now imposed by God
Idea that mere human law is subordinate to
natural law
Mechanism now exists for people like the
Pope to expound on natural law and require
kings and emperors to recognize such
Aquinas and Scholasticism
o St. Thomas, under influence of Aristotles position
that man achieves natural development in a
political society, rejected the notion that law and
government were rooted in sin and therefore
necessarily imperfect
Dichotomy of divine law only known through

revelation and natural law known through rational
unaided human reason
o Scholastic philosophy was a highly rationalistic
one that relied heavily on truth as elicited by logic
and deductive reasoning
But at the same time, its premises were not
chosen on rational grounds but were given
by the beliefs of Christian theology
o Aquinas set the pattern of modern natural-law
thinking by construing natural law as not a system of
rules which covered the entirety of human affairs
There are cases of which the law provides
and there are some where it is needed to be
morally indifferent
o Human law was fully reinstated as entitled a major
role in human government by filling the gaps of
natural law and developing further the implications of
natural law in the intricacies of human relations
Aquinas did not address cases of conflict
between natural and human law but he
seemed to think that obedience was still
needed in order to avoid scandal
Renaissance and Secular Natural Law
o The Reformation, with its emphasis on national
Churches controlled by the state, led to a secular
revolution
o
18

New age may be regarded as the Golden Age of the
law of nature where emphasis was placed on the
rational character of natural law
Unique quality of man in reason and the
rational element is shared by all mankind
International law should govern international
relations under this perspective
o Human law should give effect to natural law and
incase of conflict natural law shall prevail
Natural Law and Natural Rights
o After the Renaissance, the notion that man
possessed certain fundamental rights in a state of
nature gained currency
These rights were translated into civil rights
in a civil society
Locke: social contract gave power of rulers
and government rooting from the confidence
given to them by the people, granted that
rights of the people are upheld
o In the past, natural law was conceived as imposing
duties and prohibitions but now it was a source of
fundamental democratic rights
Constitutions of democratic countries brought
actual machinery of the recognition of
rights in law as legal rights
Rousseau: general will as natural law and
sole unfettered legal authority but these
o
enabled recalcitrant leaders to seize power

claiming he represented the general will
Modern Approaches to Natural Law
o Theories of natural law: Catholic, philosophical,
and sociological
Catholic - neo-Thomism
Philosophical - neo-Kantianism (we should
always act to the norm of conduct so that our
acts shall be translated into universal law)
Sociological - factual approach; attempt to
apply scientific method to elicit data of mans
fundamental drives and urges
Post-war Revival of Natural Law
o Nazi rule and International Tribunal at Nuremberg
revived the call for a higher law than national laws
which a natural law approach may address
It is in this century of anti-rational ideologies
such as Nazism and Fascism, that rational
faith in natural law re-assert itself
Relevance of Natural Law to the Modern World
o Incorporation of Bill of Rights in Constitutions
o Suspension of a judicial decision if it is contrary to
natural justice
o Recognition of a higher system of justice to avoid
conflict in international relations
o Natural law to aid in cases of legal predicaments
like Nazism, apartheid etc.
19

CHAPTER 5: LEGAL POSITIVISM
Physical and Normative Laws

o Positivist approach may be traced to the
Renaissance with its emphasis on the secular
studies of science and humanism
Empiricism associated with observation as
a means of ascertaining the laws of science
influenced every field
Clear demarcation between laws of physical
nature and normative laws of human conduct
Before, theological background of natural law
interpreted both physical and moral laws as
traceable to Gods will, effectively blurring
their distinction
Is and Ought
o Hume pointed out that there are really two realms of
human inquiry:
Field of facts - what is actually the case
Field of ought - what ought to be the case;
normative
o Humes discussion was principally concerned to
distinguish between fact and moral obligation
o What the law does is to lay down norms of
conduct for citizens and to indicate what sanction
should or ought to follow
Different from moral norms since law calls for

a certain measure of regularity and
observance
Moral rules on the other hand, shall be valid
even if it is hardly observed like the rule that
we should love out neighbors as ourselves
o Hume, who rejected natural law, made various
suggestions as to the way in which human passions
come to create moral norms
The Utilitarians
o Behavior of mankind was dominated by the influence
of pain and pleasure
o Utility as what served to increase human
happiness
o Benthams principle was aimed at maximizing
human happiness according to the slogan, the
greatest happiness of the greatest number
o Bentham rejected natural law which was for him
nonsense upon stilts
His arguments in favor of utility were based
on the fact that human reason could find no
rational justification for preferring one course
to another
Ironically, Benthams principle that one mans
happiness was equal to another mans owed
to the widely established natural right of
equality
20

Move to Legal Positivism

o Utilitarianism provided the climate for the move to
legal positivism through:
Firm distinction between law as it is and as it
ought to be
Tendency to treat law as a science
deserving to be ranked with the other
sciences both in its aims and its methods
Law as it is and as it is ought to be
o Bentham linked his discussion of morals in terms of
utility with the firm conviction that law could only be
properly understood if it was treated as an
autonomous field free from morals, religion, etc.
Natural law as mythical and muddled thinking
by confusing legal with moral issues
o For Bentham, the question of goodness and badness
of a law was to be adjudged by his great principle of
utility. Law reform operates under this principle.
o Legal duty does not cease to be a legal duty
because the citizens are persuaded of the moral
immorality of the duty
Whether he chooses to comply or obey is a
question for his own conscience
Legal positivist will see apartheid as formally
valid but condemn on moral grounds
Positivist attack natural law idea as it creates a

prescribed inherent quality to laws which form a
barrier to law reform
The Judge and His Conscience
o The legal positivist would submit that the judges
legal duty to apply the law to its letter and spirit is
clear
If he was persuaded of its moral
unconsciousness, then his moral duty is
conflicted with his legal duty and he should
then presumably resign
As in the example of an anti-Nazi judge in
Germany or anti-Apartheid judge in Africa, a
man may, in fulfilling his legal duty, knowingly
be acting contrary to the dictates of morality
Law as a Science
o Word positivism was devised by French
philosopher Comte to designate his own particular
philosophic system
Belief that adequate knowledge could be
attained only by employing the scientific
method
or
investigating
reality
by
observation and subjecting its theories to
empirical investigation
o Comte argued that there were three steps in the
development of mans approach to the world
Religion
o
21

Metaphysical
Positivist
o Unfortunately, at the end of his life, Comte
abandoned his work
o Scientific spirit also infiltrated arts and literature
Austins Science of Positive Law
o Austin was mainly impressed by the fact that law
operated through a system of conceptual thought
Austins aim was to examine such conceptual
system, its structure and fundamental notions
o Austin had many followers who continued his purely
conceptual attitude toward legal theory
The Conceptual Approach
o Criticisms:
Treatment of legal concepts as possessing
an inherent structure regard developments
of law that do not adhere to such
structure as illegitimate
Treatment of the conceptual approach that
legal problems can be solved by means of
logical analysis disregard role that policy
plays in arriving legal decision
Conceptual approach focused on secondorder facts such as rules of law, cases, and
law books which disregard first-order or
primary facts consisting of behavior of

legal officials, judges, and others in
relation to legal rules
o The scientific jurist cannot ignore the fact that there
is built into the law seeds of its own development
on the lines of some value system
Where Positivism stands Today
o Usually associated with disbelief in the possibility
of finding an absolute standard or norm outside of
the legal system itself
o Attack on positivism launched today in two ways:
Legal positivism by its refusal to
acknowledge an absolute higher morality
controlling legal validity, has made it possible
for totalitarian dictators to bend laws
Absolute moral values do exist and can be
demonstrated to exist by various means
o On the whole, the positivist shares a rationalist
approach to the moral values of his society rooted
in European ethical thought
o The positivist prefers to concentrate on studying
the values that are inherent in our present stage
of civilization rather than postulate absolute values
Consequently, the lawyer needs to
understand the value system of his
society in order to wrestle the problems
which arise in the legal system
22

Idea of law has always been associated with the idea of

justice
o Law without justice is a mockery, a contradiction
o Values embodied in laws of a community, strive
towards justice
What is Justice?
o Justice in itself is a moral value that man aims
towards in order to attain the good life
What is ultimately good is a matter of choice
Platonic Justice
o Man is a reflection of the pattern of the just society
Man acts according to his idea of a just
society
o Justice means conforming to ones proper sphere
Platos system is based on the fallacy that
each man fits a specific job or function
based on his natural aptitude
Formal Justice and Equality
o Modern legal and moral philosophy treats equality as
the vital function of justice
Law applied without discrimination may be
regarded as embodiment of justice
However, justice cannot mean that we are to
treat everyone alike regardless of inherent
differences
Formal Justice: equal treatment in accordance with

classifications laid down by rules
Formal justice is lacking in that it does not tell
us about how people should or should not be
classified
o Formal justice involves three related conceptions:
Rules on treatment of people in given cases
Generality of rules
Impartial application of rules
Substantial Justice
o To achieve substantial justice, formal requirements
of justice need to be supplemented in two ways:
Concrete Justice: criteria to establish
whether rules are themselves just; possibly
through a scale of values in cases the gravity
of two values are debated upon
Equity: quality of fairness; possibly through
giving discretionary power to judges to decide
individual cases under the spirit of equity as
applied in deciding penalties in criminal law
Legal Justice
o Justice is a much wider conception than law and
may apply wherever there is a code of rules, legal or
non-legal
o Law and legal system corresponds to all three
precepts of formal justice namely, rules, their
generality, impartiality
o
CHAPTER 6: LAW AND JUSTICE
23

A certain measure of coherence and regularity is a
vital feature of any legal system but no exact
standard can be laid by which this measure is to be
judged
Legal Injustice
o 3 distinct types of cases which injustice in relation to
law may arise:
Case decided contrary to what the law lays
down
Case is unduly administered contrary to
impartiality
Case is judged according to formal justice
but against substantial justice
o
In the abovementioned cases, an unjust law is a

perfectly intelligible conception which conflicts with
the scale of values which we choose to judge it
o Formal justice, like law itself, may fail to result in
substantial justice
Law and Substantial Justice
o It is not enough for a system of law to comply with
formal attributes as it also needs just content
o Two ways in which a legal system may attain not just
formal but substantial justice:
Flexibility in rules- to allow law to adapt to
needs of the society
More specific guidelines- will work well in a
country with a long tradition and fairly
homogenous population i.e. Art. II of the
Constitution
o
24

CHAPTER 7: LAW AND FREEDOM
Introduction
Law as paradox: means of directing and imposing
restraints upon human activities
Rousseau: Man is born free; yet everywhere he is
in chains
The savage man lives a life of primitive
freedom and simplicity, but
In practice as Rousseau realized man is
never isolated and free in this sense but
always part of a community, and the degree
of freedom he enjoys or the extent of the
social restraints imposed upon him will
depend upon the social organization of which
he is a member.
Restraint is not necessarily an encroachment upon
liberty.
Ancient times: inequality, rather than equality, was
regarded as the fundamental law of human society.
Freedom was a guarantee of security in the station
of life in which Providence had placed him
Modern times: freedom has assumed a central
position and a more positive function in the scale of
values set up as the operative ideals of a genuine
social democracy on the Western pattern.
Open and Closed Societies

Open society wide field left for personal decision
and for assuming of individual responsibility, e.g.
Western democratic society
Closed society Almost tribal or collectivist pattern
where the community is completely dominant and
the individual counts for little or nothing, e.g.
Totalitarian society such as that of the Soviet Union
or the former Nazi Germany
Note: there are developments even in Western
society in the direction of a more collectivist society
increasing role of the state in matters
concerning social welfare
increasing conformity in patterns of social
behavior and discouraging what are regarded
as individualist aberrations
Marxist argument: without control of wealth and the
pattern of its distribution, the genuine scope of
equality and individual initiative remains extremely
limited.
Positive and Negative Freedom
Positive freedom spiritual conception, implying
some kind of maximum opportunity for the selfrealization of every individual to his full capacity as a
human being.
Negative freedom concerned with organizing the
pattern of society, that despite the restraints and
limitations that are placed upon individual action for
25

the benefit of the society as a whole, there remains a

large sphere for individual choice and initiative as is
compatible with the public welfare.
As far as legal freedom is concerned, the emphasis
is on guaranteeing the maximum degree of
negative freedom. Attempts have been made in
modern society to try to give effect to those values
which are regarded as enshrining freedoms which
modern man has come to accept as an
indispensable feature of the good life.
Basic Human Rights
Distinctively natural-law origin
2 outstanding contributions of the constitution
makers of the United States and the early judicial
interpreter of the constitution:
The idea of expressing in the written
constitution what were accepted as the
fundamental legal human rights of the
citizens
Marshall doctrine: it was for the courts
(ultimately the Supreme Court) to
determine
the
scope
of
these
constitutional provisions. He laid down
that the court was bound to treat these rights
as overriding in the sense that any
legislation or legal rulings or decisions which
disregarded them were to be treated as

invalid.
Attempts in more recent times to express in a supranational form the basic human rights which are
regarded as the legal entitlement of all human
beings:
Universal Declaration of Human Rights of
1948
European Convention of Human Rights
Declaration on the Rule of Law sponsored by
the International Commission of Jurists in
1959
The Main Values Expressed in Legal Freedom
Expanding / Contracting Rights
1. Equality and Democracy (E)
recognition of equality before the law
principle of non-discrimination in regard to
such matters as colour, race or creed
2 important lessons from the point of view of
the relationship of law to society:
i.
rules of law which are note expressive
of the mores or standards of conduct
which prevail in a given community
are likely to remain dead letters
through passive or even active
resistance of the citizens.
26

ii.
if law is to be an effective focus for

giving expression to fundamental
values, it cannot merely reflect the
common level of morality; it must be
regarded as a positive directing force,
which can be used as an instrument
of
social
progress,
i.e.
an
enlightened minority leading the
recalcitrant majority.
2. Freedom of Contract (C)
Laissez faire, where one had the right to
make his own contractual arrangements, led
to startling abuses by corporations.
The counter move in favour of state control
started
with
the
legislation
against
monopolies and restrictive trade practices.
The rise of trade unions in recent times
transformed the character of industrial
relations, e.g. equality of bargaining power.
The widespread growth of standard-form
contracts has further exposed the unreality of
freedom to contract.
3. The Right of Property (C)
Power of the state to tax seemed to involve
an encroachment upon the right to property
Reconciliation was found in the principle that
taxation was permissible provided that
there was consent, i.e. taxation was

authorized by a duly elected representative
legislature
At the present day, the level of taxation is at a
height which in previous ages would have
been regarded as confiscatory.
Inroads that have been made on the right to
property:
i.
Nationalization of whole industries
ii.
Control on the uses that land and
buildings may be put to
iii.
Powers of compulsory acquisition
enabling authorities to acquire land
from private owners
iv.
In Soviet Russia, protection of private
property is only to articles of personal
use (not the means of production or
land)
4. The Right of Association (C)
Right of various types of groups: social,
political, economic, or any kind to organize
themselves and conduct their affairs
This extends to the right of business
enterprise to organize itself and how far it
may be legitimately restrained in order to
protect the public against monopolies,
restrictive practices, or fraud.
27

Right of labour to organize itself in trade
unions to deal on a collective basis with
employers.
Right of people to hold public meetings, for
the purpose of making protests or attempting
to influence public opinion and so forth.
The state has a right to preserve public
order and this may frequently clash with the
right of holding protest meetings, e.g. in
England, owing to the outbursts of Fascism in
the 1930s, it was found necessary to pass
the Public Order Act of 1936, preventing the
wearing of unofficial uniforms in public places
and imposing restraint on the use of abusive
language at public gatherings.
5. Freedom of Labour (C)
This right in modern times has mainly
developed in relation to the trade union
organization of labour.
Legal restraints on the freedom of labour:
i.
Englands Industrial Relations Act of
1971 (established the National
Industrial Relations Court)
ii.
Trade Union and Labour Relations
Act of 1974 (repealed the Industrial
Relations Act)
iii.
Compulsory
or
semi-compulsory
arbitral procedure of a judicial or
quasi-judicial
character
in
US,
Australia, etc.
What is really at stake is the ability of a group
of workers to hold to ransom not only a whole
industry but even the whole economic life of
the country.
6. Freedom from Want and Social Security (E)
The need to protect everyone, not merely
against grinding poverty, but also in the
enjoyment of a reasonable standard of life
whether in or out of employment.
Need to spread the risks of misfortune
among the community as a whole, rather
than allowing them simply to affect the
particular victim of misfortune (as opposed to
the Victorian philosophy of self-help).
7. Freedom of Speech and of the Press (C)
Fundamental value in any community
where democratic and egalitarian values
prevail, for without these, the possibility of
developing and crystallizing public opinion,
and allowing it to be brought to bear upon the
governmental organs of the state, is bound to
be ineffective.
28

Freedom of speech can hardly be

absolutely unrestricted e.g. a law of
defamation, sedition, obscenity
Freedom of speech and of the Press usually
implies an absence of initial censorship,
subject to any possible legal action thereafter
ensuing
A substitute is found in self-censorship
i. Difficulty: ultimate limits of tolerance
which may be required by the
established value of freedom of
speech
Greatest significance of censorship at the
present day is positive.
i. Against the danger of various organs
of public opinion to fall increasingly
into a very few hands by reason of
newspaper mergers and take-overs
The Press clearly retains a central position in
mass media because of its unique capacity
for serving as a focus of public opinion.
What seems to be unproved is that there is
any necessarily overriding public interest
which entitles journalists to complete
immunity as to revealing their sources of
information, although no such immunity is
enjoyed by anyone else.
8. Freedom of Religion (C)

The exact implications of this doctrine may
appear in a very different light in different
communities. Under the US Constitution, no
established religion is permitted, whereas in
England and established religion is an
essential part of the constitution.
The main aspects of freedom of religion
which are apt to arise nowadays are:
i.
Discrimination
against
religious
groups
ii.
Religious schools
iii.
Specific teachings of religious faith
(e.g. Mormons encourage polygamy,
Christian Scientists may refuse
medical aid)
The law generally declines to regard
religious groups as being entitled to any
special degree of immunity from legal
regulations
9. Personal Freedom (C)
Although personal freedom may easily be
ranked as supreme among the freedoms of a
democratic society, it is not easy to find
specific applications which do not more
readily fall under other headings of freedom,
e.g.
29

i.
Need for due process of law form

essential elements of the rule of law
ii.
Freedom to take up any employment
is linked with the freedom of labour
iii.
Choice of residence has to do with
economic resources, though the state
can do much to provide suitable
homes
iv.
Restrictions on the freedom to travel
also raises issues on personal
freedom, e.g. passport requirement,
extradition
10. The Rule of Law (E)
The Rule of Law is herein referred to in its
narrower sense, as imposing those
procedural guarantees which have been
found necessary to ensure what in American
constitutional practice is known as due
process of law
This involves:
i.
Independence of the judiciary
ii.
Speedy and fair trial and adequate
judicial control over police and
methods of securing confessions
iii.
Adequate safeguards regarding arrest
and detention pending trial
iv.
Adequate legal aid for those with

insufficient financial resources to
obtain suitable legal defence
v.
Accused being entitled to refuse to
make statements that may incriminate
himself
vi.
Those charged with duty of advocacy
must be free and independent, not
subject to any state pressure
vii.
No retroactive legislation
viii.
A person is only answerable for his
own wrongdoings and not to be
punished simply because he is in
some way connected or related to the
guilty person (referring to criminal
liability, not civil liability for acts of his
servant or agent)
The scope of the modern rule of law is not
limited to cases of safeguarding accuse
persons, but also has a wide and important
sphere of operation in regard to the
exercise of state and governmental powers,
i.e. rules of administrative law which enable
either the ordinary courts of law or some
special tribunals to exercise supervision over
administrative or quasi-judicial functions of
the executive. These provide the system to
30

handle complaints against the state or its

organs for abusive, improper, or negligent
actions, e.g.:
i.
Common-law systems rely on general
supervisory
jurisdiction
by
the
ordinary courts
ii.
Continental
countries
favor
independent administrative courts or
tribunals, such as the Scandinavian
Ombudsman
iii.
The French system is based on the
Conseil dEtat
The Problem of Conflicting Values
There are many ways in which conflicts may arise
between the various types of fundamental rights
accepted in the modern democratic state
How personal freedom would have to yield to
considerations of public security was made by
American Judge Justice Holmes: there must be a
clear and present danger to public security.
Preferred freedoms, i.e. certain freedoms
guaranteed by the Constitution are to be regarded as
more fundamental than others and therefore should
prevail against the less basic freedoms.
Human Rights and Their International Protection

The reluctance of individual states to take adequate
measures to protect individual rights either of citizens
or of aliens in their midst has led to attempts to
establish supra-national authority which can take
steps to protect individuals against denials of justice.
Customary international law can hardly provide
assistance, e.g. only states are recognized under
that system of law, not private individuals.
Two requisites:
Clearly laid down code of established
human rights accepted by all civilized states
System of judicial machinery where issues
involving alleged infringement of these rights
can be investigated and determined
Attempts to establish supra-national authority:
Universal Declaration of Human Rights
adopted by the General Assembly of the
United Nations in 1948 no machinery
Convention for the Protection of Human
Rights and Fundamental Freedoms, signed
by the Council of Europe in 1950 only
discretionary competence
The primary concern of the European
Economic Community was expressed in the
Treaty of Rome
31

PHILOSOPHY OF LAW AND THE NATURE OF MAN

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

Law is one of the institutions that allows man to live in

IS LAW NECESSARY? A DIALOGUE

Aris and Bato, two legal philosophers who seem to be

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

Improves the quality of life in society

CHAPTER 1: IS LAW NECESSARY?

Historically, law has been considered unnecessary by

Forms ones outlook about the world, upon

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

Harkening back to a Golden Age of idyllic primitivism

Good ways of man attributable to teaching of rituals and

Men are covetous and passionate by nature. Without

Mans original state is that of disorder and violence

State of perpetual warfare, nasty, short, brutish life

Without law, government and coercion, human society

Men are naturally bad and will not honor promises

Golden Age where Man knew right and wrong without

Primitive man was happy and ruled by the best and

Christian Church Father

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

Christian Church Father

State is not a necessary evil but a natural foundation for

14. Adam Smith

Laissez-faire economics, where government and law

16. Bakunin and Kropotkin

The state, law, coercion and private property were the

12. St. Thomas Aquinas

Man has aggressive drives curbed by laws.

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

19. Elliot Smith

20. Herbert Read

Law is a coercive system devised to maintain the

21. Sigmund Freud

Man is not harmless or gentle. Aggressive drives can be

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

CHAPTER 2: LAW AND FORCE

Myth of Anu and Enlil

God of the storm

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

of whether the particular order of rule is acceptable

development of possibilities in social

confers an indisputable aura of

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

Authority derived from the

Legal domination, is different,

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

Coercion seems to be necessary and is personified

Law can exist in its own right regardless if

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

Human society would not have flourished if

Only certain individual persons and

CHAPTER 3: LAW AND MORALS

Relation between law and morals is far from simple

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

Prophetic writings. Prophets are those with

Imperative, obligatory and punitive

Fate, mysticism did not affect human laws

May be decreed by kings and prophets anointed by

Man-made laws may not always be reasonable or

Law is simply the moral / religious law set down by

Law is a reasonable command needed for society to

Irrational and mystical, a matter of faith