FEB.

16, 2016

LEGAL THEORY

RAISSA MATUNOG

What were the two questions of Marmor?

There are a number of legal theories available
Concern of the people these days (however) is the Rule of Law
RAZ Rule of Law
not based on the arbitrary decisions of man
Hayek government action should be governed by rules
What kind of rules? FIXED and ANNOUNCED
What is the purpose? For long-term decision making
which is the ability to plan; make decisions under what the law allows
o Where does Hayek root this principle? Liberal Economics Philosophy free
market, free trade
can plan around the rules
know how you can live a profitable life
This theory is entrenched in the rules of many states
rules-based settlement of the Philippines with regards to South China Sea
dispute a manifestation of this
RAZS CRITICISM OF HAYEKIAN THEORY
Rule of law doesnt mean rule of the good law
Hayeks idea of government does not necessarily depend on the rule of law
Rule

of Law, strictly speaking, is OBEDIENCE

rule of law sidesteps the first inquiry of legal theory
does not get into a higher inquiry of the morality of law
nor does it tell us why people follow the law

At one point, Raz says that maybe it (rule of law) means nothing, since it applies to
everything
TWO SENSES OF THE LAW
1. Lawyers sense technical sense; constitution, statutes, admin orders etc
2. Laypersons sense law as long as it is a rule that is open, general and stable
When law is understood as governing rules of life, there is a different understanding and
expansion (broader) sense of the law
expansion as in a far more extensive body of rules
including, for example, common law, customary law, culture as a source of law
When law is looked at this way, the Hayekian understanding of law starts to chip away.
Based on this broader idea of law, Raz is able to identify several characteristics (9)
1. prospective, open and clear
prospective linked to stability (the 2nd characteristic)

FEB. 16, 2016

LEGAL THEORY

RAISSA MATUNOG

there must be a sense of it being a longer-lasting rule

Given the broader understanding of law, there is a need to consider it whether or not
some of those rules supersede others
in other words, what makes the law valid?
AQUINAS NATURAL LAW
Aquinas old natural law theory
Finnis modern natural law theory
Aquinas attempts to establish a theory of law by answering some important questions
what makes law valid and what makes people follow the law?
What
-

makes man happy, according to Aquinas?

salvation
save souls from Hell
happiness of eternal life

These answers actually explain something of Aquinas understanding of the nature of

law.
What is the essence of law?
law is the ordinance of reason for the common good
promulgated through the faculty of reason
How does he make the connection between the reasonable man and the divine?
1. Reason vs Arbitrary Will
Reason is inherent; God-given
We are reasonable people because God made us so
Laws made by men are therefore also reflections of the laws of God.
law produced by men through reason
Laws must be then consistent with the law of God.
CLASSIFICATION OF LAW
1. Eternal Law - Laws of the universe
Laws that determine existence
How things work
2. Natural Law laws of the universe apprehended through reason
reflects how the universe works
ex: mans tendency to bond together into communities, etc
3. Human Law devised for particular human circumstances
application/extension of natural law; must be consistent with above two
4. Divine Law law given by God
The standard of morality
How do you determine divine law?
religious institutions will tell you what is divine law

FEB. 16, 2016

LEGAL THEORY

RAISSA MATUNOG

why? They are the ones who know God

therefore, religious institutions are the final say

Aquinas is trying to justify a relationship between law and religious institutions

why? Historical circumstances
o religious institutions were the ones leading during those days
o ex: they even decided who would be king
This account was how Aquinas described a system of law in his society, and his links it
with the supernatural
A classical version of natural law
Aquinas theory best presents the problems of the original version of natural law (its
linking with religious institutions and divinity as the source of morality)
JOHN FINNIS
reworked the original natural law theory
takes away much of the shortcomings of the original theory
What is law?
criteria for right judgment
for assessing good or bad, right or wrong, desirable or undesirable
Practical Reasonableness
Purpose: to know what is best for ones self
BASIC GOODS
Life, knowledge (for its own sake), friendship & sociability, play (for its own sake),
aesthetic experiences, practical reasonableness, spirituality

from these alone you can see that there is a clear difference between Finnis
theory and Aquinas (Aquinas had happiness, Finnis had basic goods, plus
happiness for Aquinas meant salvation from hell)
only thing in common: reason plays a role
instead of happiness as an object, he talks of goods
he uses a criteria - it should be the result of peoples practical reasonableness
o no need to consult the priest (as in Aquinas)

BASIC REQUIREMENTS OF PRACTICAL REASONABLENESS

A coherent plan of life why need a plan? To acquire the basic goods/maximize the
acquiring of basic goods
No arbitrary preferences among values must prioritize certain goods over others,
cant get all goods at the same time
No arbitrary preferences amongst persons
Detachment dont become obsessed with goods

FEB. 16, 2016

LEGAL THEORY

RAISSA MATUNOG

o Why this concern that you dont become obsessed with just one? Because
then youll become in the other extreme from the no arbitrary preferences
requirements
o One to the exclusion of others
o Why? Cannot move on and acquire other goods

o Need to pay attention to all the goods

Commitment your plans of action must lead to actual improvement
o Cannot contribute to common good if stagnate
o Stagnation be bad why? Because this makes you stop improving, stop
contributing to the common good

What is the common good about?

AQUINAS happiness of eternal life
FINNIS helping others pursue the common good
everyone pursuing the goods in concert with everyone else
everyone benefits
HOW? Coordination
o Purpose: to be able to include the others
o Must distribute the goods equitably
This is where you see where law begins to seep in (to Finnis theory) how people are to
pursue the common good
AVOID SELFISH DESIRES in the pursuit of the common good
why? This leads to deprivation
or the destruction of the common good itself
This is where Finnis is taking us the reason and nature of law
FLAW OF FINNIS THEORY
Not everyone would have goals that follow the common good
Also, many of his assumptions are difficult/impossible to prove
In Finnis, what is unproveable?
Cant really tell if people have a conception of the common good
Dont know if they know the difference between a common good and a personal
good
Possible that we think they are pursuing a common good when they are only out
there for their own personal desires
In both Aquinas and Finnis you have to have FAITH
Natural law well-reasoned, BUT based on certain assumptions, beyond which you
cannot go