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TELEOLOGICAL PERSPECTIVE
A. Greek Concept
DEFINITION
- The law is ordained for the fulfillment of
the precepts of the natural law namely,
righteousness, justice fairness and
equality
- Achievement or realization of these
precepts in the legal order is the TELOS of
the law.
- Telos - Greek for "end", "purpose", or
"goal
LAW
- NATURAL LAW BASIS: the universal
discipline of virtue impressed in the heart
and mind of man to guide him in the
exercise of his rights, in the performance
of his obligations, in the observance of
rules, and in the preservation of order and
unity.
- PRECEPTS: RIGHTEOUSNESS, JUSTICE,
EQUITY, AND FAIRNESS
- not considered divisions of the law but
its very perfection.
- good legal order can be deduced from
natural law
- universally valid for all people
ETC. MORALITY/JUSTICE/STATE
B. Roman Concept
C. Aquinian Concept
D. Kantian Conept
E. Utility Supplement
F. Hegelian Concept
DEFINITION
Transcendental Philosophy (Kant)
-Learning or understanding determined by
the mind itself
- A priori knowledge: not gained through
experience
- Ideas formed in mind independent of
feelings and inclinations
Critique of Pure Reason (Hume)
- Based on senses/experience
- Theory based on skeptic philosophical
tradition and empiricism
Utilitarianism
-Act in a way with best consequence
- Happiness as the measure of goodness
or badness of acts and their consequences
based on the hedonistic calculus
(pleasure)
FUNCTIONAL PERSPECTIVE
LAW
Principle of Rightness:
- The precepts of natural law are not
prompted by sense-experience but by
ethical attitude to do what is right and
avoid what is wrong
- Righteous person: one who can attain
freedom from the arbitrary power of his or
her physical senses
- LAW, to be an effective means of social
control, must be based on the a priori
precepts of natural law.
Nature of law based on:
1. Pleasures ought not to be sought
2. Pains ought to be avoided
What pleasures ought not to be sought
and what pains ought to be avoided
- Law is a system of social control
directing and governing persons to the
maximum happiness and to the minimum
of misery
- Purpose is the prime mover of law
- Law is shaped by the purpose of society
Neo-Hegelian Twist
- The Neo-Hegelians regard the law as the
power of dictatorship of the Leader, where
there is no separation of powers of
government. In effect, this means that the
law and the will of the Leader are one and
the same.
Essential Attributes of the law
1. Greco Roman Aquinian Viewpoint
Right reason in relation to justice and
equity is the essential attribute of the law
2. Utilitarian Point of Observation
Greatest happiness of the greatest
number in the community
3. Modern teleological analysis- the free
willing thinking individual living in a
changing society
- No rigid/single formula for application of
law; constant change
Social engineering
- Legal order to decide which among
conflicting interests should be prioritized
- Law: social phenomenom
ETC
Ethical ought vs. Legal ought
- Kant employed the ethical ought
because this standard involves moral
motivation
DEFINITION
- Formalists believe that a judge identifies
the relevant legal principles, applies them
to the facts of a case, and logically
deduces a rule that will govern the
outcome of the dispute.
- The most obvious characteristic of legal
formalism is the purported separation of
legal reasoning (or "application" of norms
to facts) from normative or policy
considerations. Legal formalists argue that
judges and other public officials should be
constrained in their interpretation of legal
texts, suggesting that investing the
judiciary with the power to say what the
law should be, rather than confining them
to expositing what the law does say,
violates the separation of powers.
LAW
-Assumes that the law is a system of rules
that can determine the outcome of any
case without reference to external norms
-It is characteristic of the positivist
perspective of the nature of the law. It is
criticized as a simplification of legal
reasoning. In this rigid model, the decisive
legal rule serves as the major premise,
the material facts constitute the minor
premise, and the decision is reached
strictly by deductive reasoning. In other
words, decisions are said to inevitably
follow the basis of stare decisis.
LEGAL REALISM
Social
Legal Realism vs. Natural Law
- Natural law was the law above the law.
It is a theory founded on the philosophical
and legal belief that all humans are
governed by basic innate laws, or laws of
nature.
- Legal Realism is founded on the belief
that man makes up his own law. Instead of
consulting universal
LEGAL FORMALISM
ETC
Conceptualism
- treats law like math or science
LEGAL REALISM
DEFINITION
- the realism in law is characterized by a
healthy scepticism for the traditional
perspectives of law; about the role of
rules, facts, and judicial opinions in the
legal ordering of society.
- Re-examination of the problem of the
nature of the law in terms of the relation
of legal rules and legal facts to the
realities of the judicial process.
LAW
- Criticized that natural law must be
accepted by all because it is self-evident;
The concept of situational natural law is
also rejected
- Law has been defined as the a system of
reason, deduction from principles of
ethics, or admitted axioms etc.
- is not an ideal concept but something
that actually exists. It is not that which is
in accordance with nature, or religion, or
morality, it is not that which ought to be
but hat which is
ETC
CONSTRUCTIVE SKEPTICS
-Skepticism about rules, facts and judicial
opinions
MATERIAL FACTS
- Material facts do not refer to all past acts
and events; Presented facts may be
considered irrelevant
ROLE OF EXPERIENCE AND SOCIAL
ADVANTAGE
- Law is not the exclusive product of logic.
ROLE OF METALEGAL STIMULI
- Formalist Concept: decisions are based
on the doctrine of stare decisis
- Realist Concept: decisions should be
based on material facts of a case and not
just on jurisprudence
- Metalegal Factors: set by witness,
lawyers, judges legal attitudes and
prejudices, by judges predilections and
preconceptions, historical events, current
social values and postulates
OF
THE
POST-
POLICY SCIENCE
DEFINITION
Four salient features:
1. Reaction to apathy towards social
values
2. Movement away from ontological
jurisprudence
3. Emphasis on human rights
4. Movement for the universal recognition
of social values
LAW
- Law is adequate if it does not take into
account the goal values and policy
guidelines to which the society is
committed.
- Law can truly be an instrument of global,
regional and national control when it is
committed to the complete achievement
of the social values that constitute the
professed ends of democratic societies
-Law is an adequate
- Presupposes a concept of law in that the
law is uncontrovertially
known to all
actors
LIBERAL ORDER
1. Decentralization of government
2. Reorganization of market economy
3. Reconstruction of system of rights
ETC
Basic social values: power, knowledge,
respect, income, safety, liberty, equality
Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes. In civil
law jurisdictions (the legal tradition that prevails in, or is combined with common law in, Europe and most non-Islamic, non-common law
countries), judicial precedent is given less weight (which means that a judge deciding a given case has more freedom to interpret the
text of a statute independently, and less predictably), and scholarly literature is given more. For example, the Napoleonic Code
expressly forbade French judges from pronouncing general principles of law.
Common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic Code.
The common law is being replaced by statute or codified rule in the United States, in which case, the statute sets the general
principles, but the common law process determines the scope and application of the statute.
Judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than
the bright-line rules usually embodied in statutes.
Common law courts tend to use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law
systems, inquisitorial systems proceedings, where an examining magistrate serves two roles by developing the evidence and
arguments for one and the other side during the investigation phase.
LEGAL POSITIVISM
Law is a complete set of norms and rules of action which excludes from its specific concerns value creation, clarification and realization.
BASIC SOCIAL VALUES: Policy Science
Social Valu Power - A political mechanism for the good of the society which reflects the will and choice of the people as a whole and not just that of the leader.
Social Value KNOWLEDGE - Means the widespread understanding among peoples of different cultures and backgrounds.
THE SOCIAL VALUE RESPECT - Regard for life and esteem for the dignity and worth of human personality.
THE SOCIAL VALUE INCOME - It means the economic betterment of the people, adequate provision for a high employment level, freedom to unionize and bargain
collectively, efficient method of production and wise consumption of goods and services, and raising of the plane of living
THE SOCIAL VALUE SAFETY - Represents and signifies public protection, pubic health, social security and peace and order.
THE SOCIAL VALUE LIBERTY - In the physical context, liberty means security from restraints or freedom of the body from external physical compulsion
Due process of Law
2009
1. Explain what is meant by the universality of human rights as based on Natural Law (5pts.) and on Policy
Science Perspective (5pts.)?
2. A sells his 1997 Nissan Sentra to B, a compadre and leaves it to B to determine the price. If B refuses to fix a
price and simply takes the car, is he obliged to pay the price? Explain. (5pts.)
3. How would you compare the Civil Law system (5pts.) with that of the Common Law system (5pts.)?
4. What is the Policy Science Perspective and how does it define law? (5pts.) Explain its critique of Legal
Positivism. (5pts.) What are the social values espoused under this perspective? (5pts.)
5. Explain how law relates to morality in Legal Positivism (5pts.) and in Natural Law. (5pts.)
6. Define law according to Legal Formalism (5pts.) and Legal Realism. (5pts.)
7. Why should the law be liberalizing according to Critical Legal Realism? (5pts.)
8. Explain the following statements:
a. Functional perspective is known as sociological jurisprudence. (5pts.)
b. The binding force of law is psychological. (5pts.)
c. Law as a means of directing man to the maximum of happiness and minimum of misery. (5pts.)
d. Law as an institution ordained by God. (5pts.)
e. Law is a product of the judicial process. (5pts.)
f. Equity follows law. (5pts.)
9. Demetrio knew that a piece of land bordering the beach belonged to Ernesto. However, since Ernesto was in
Europe, no one was taking care of the land. Demetrio built nipa sheds on Ernestos land and rented out
these sheds to people on the beach. When Ernesto returned, he demanded return of the land. Demetrio
agreed but only after he has removed the nipa sheds. Ernesto refused on the ground that the nipa sheds
already belonged to him by right of accession. Who is correct? Decide the case using the functional
perspective. (5pts.)
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