The Relevance of Philosophy to Law

Philippine Law Journal

Emmanuel Q. Fernando
What is Philosophy?
1. Love of knowledge
2. A rational investigation of certain fundamental
problems about a man and his environment
3. A battle against bewitchment of our intelligence by means of
language.
Differentiate Philosophy of Law v. Sociology of Law.
Philosophy of law is the nature of ultimate reality. Its
perspective is above or superior to Sociology. On the other hand,
Sociology of laws purpose is to explain and predict. Its
perspective is outside or alongside of the law.
What are the two approaches to Philosophy?
Method-oriented
Problem-oriented approach
(Rational) approach
Characteristics of Problem- Analytical
oriented approach:
- Conceptual
- General (wideness of scope)
- Linguistic
- Abstract (intangible; nonconcrete)
- Fundamental (foundational;
building-blocks; stable)
- Controversial (no agreed method
for determining solution to a
problem
What are the ages of Philosophy?
1. Metaphysics (What is the nature of ultimate reality)
2. Epistemology (Theory of knowledge)
3. Analysis
Under the age of Epistemology, should a philosopher consult his own
power of rational insight?
NO. A philosopher is not supposed to consult his own
powers of rational insight due to inherent limitation of reason is
he wanted to know the real nature of the world. The world does
not necessarily have to conform to the structure of our grammar.
What are the limitations/fallback of a rational argument?
1. Inherent limitations on pure reasoning
2. Absence of evidence
3. Misguided logic of their own reason.
Distinguish Science v. Philosophy
Science is a first order discipline. It investigates the
world directly. On the other hand, Philosophy is a second order
discipline. It determines whether the knowledge claims made by
Science is not prone to error. Likewise, it checks whether the
deductions are logical and if the conclusions are justified. Finally,
while scientists experiment and gathers data, philosophers think
in an armchair.
What is Jurisprudence?
1. Juris law; Prudentia Prudence; careful judgment
that allows someone to avoid danger or risk.
2. Case law; Supreme Court decisions
3. Judicial decisions which apply or interpret laws and
form part of the legal system of the Philippines (Art. 8,
NCC)
What is General or Universal Jurisprudence? (Austin)
General or Universal Jurisprudence means the study
of the principles or notions and distinctions common to various
legal systems, and forming analogies or likeness by which such
systems are allied.
What is the distinction between narrow and wide sense of
jurisprudence? (Austin)
1. Narrow Sense: Jurisprudence
WHAT IS LAW
The knowledge of law as a science, combined with the art
or practical habit or skill of applying it.
2. Wide Sense: Legislation/Censorial Jurisprudence
WHAT THE LAW OUGHT TO BE

The science of what ought to be done towards making

good laws, combined with the art of doing it.

4 basic problem of study of legal system (Joseph Raz)

1. Existence
2. Identity
3. Structure
4. Content
What is Integrative Jurisprudence? (Jerome Hall)
Integrative Jurisprudence is an approach of historical
or sociological perspective. It provides that law was linked not
only to History and Sociology, but also to Philosophy or Ethics. It
takes into account all significant aspect of legal problem.
What are the 2 characteristics of Jurisprudence?
1. System of what common to various system
2. Linkage to other discipline.
What are the 2 kinds of perspective to Jurisprudence?
1. External Perspective
2. Historical/Sociological perspective
What is legal theory?
Legal Theory is an aspect of Jurisprudence that deals
with the specific question what is the nature of law?
What is Philosophy of law?
Philosophy of Law is a rational inquiry into:
(1) Nature of the law, legal reasoning
What
is
law
and other legal phenomena
approach
(Jurisprudence)
- A conceptual,
factual and logical
analysis
(2) Rational consideration and
What law ought to
appraisal of normative issues
be approach
related to law, like the obligation
- A rational
to obey the law, the enforcement of justification;
morality, the problems of ideal
reasoning thru
justice, liberty, punishment and
opinion or POV
the like (Jurisprudence & Legal
Theory)
*Definition (1) & (2) pertains to Jurisprudence; Definition (1)
pertains to Legal Theory. Philosophy of laws scope is narrower;
Jurisprudences scope is broader.
What are the 3 types of definition?
1. Essentialist Definition real definition/ explanatory
2. Speculative
Definition

merely
proposal
recommendatory
3. Lexical Definition dictionary meaning

or

What are the parts of a definition?

1. Definiendum word or phrase to be defined
2. Definiens the defining phrase
What are the two (2) requirement for definition to be a true
definition?
Its (1) purpose and (2) criterion for logical
correctness must be purely verbal or linguistic.
COGITO. ERGO. SUM I think. Therefore. I am.
Ren Descartes
What is the difference between a philosopher and a lawyer?
A philosopher is interested in abstract and ideal law,
while a lawyer is interested in concrete and existing law.
Why must a law student study philosophy?
1. To be a better lawyer
2. To be a better human being
3. To define the nature of law to apply it in everyday life.
What are the 2 kinds of law?
1. Descriptive Law merely describes uniformities or
regularities in the world or in nature; May NOT be violated
(i.e. scientific laws).
2.

Prescriptive Law prescribe a type of behavior which

is supposed to be obeyed; may not be violated.
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1.2 Natural Law Principles of eternal law specific to

human beings.
1.3 Divine Law Law that exists over and above natural law
that guides us to ultimate goal salvation
1.4 Human Law Rules framed by the head of political
community for the common goods of its members.

2.1 Command Rule of action imposed upon men by

some authority who enforces obedience to it.
2.2 Customary law Any rule of action which is observed
by men and not imposed by some men
2.3 Moral law Principle of right and wrong

Differentiate just and unjust law

2.4 Practical law Rules for attainment of some practical

end (i.e. how to drive a car)

Just Laws should be followed. It is legally valid. It is a

real law that promotes common good and have legal authority.
On the other hand, Unjust Laws are without legal
authority, it creates social disorder, it is legally invalid and obliged
to be followed in order to avoid disturbance.
As an example, Orthodox view provides for the complete
nullity of unconstitutional law. When court declare a law to be
inconsistent with the Constitution, the former shall be void and the
latter shall govern (Par. 2, Art. 7 of NCC). Likewise,
unconstitutional act is not a law; it confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is in legal
contemplation as inoperative as though it had never been passed
(Norton v. Shelby).

2.5 International law Embodies prescriptive rule which

govern sovereign states in their relations and conduct
with each other
2.6 Rules of etiquette Custom which embody
conventional rules of social behavior
2.7 Positive law/municipal law (1) Law of the state
which is the product of the reason and will of authorities
and regulates the transactions and relations between
men and their social life; (2) Law that defines their rights,
duties, civil liabilities, criminal responsibility and
prescribes the remedies for complaining and setting-up
defenses.
2.7.1 Law in particular (i.e. rape) NOT a concern of
legal theory
2.7.2 Law as a system of Norms (i.e. criminal law, civil
law) concern of legal theory
Arguing About Law:
An Introduction to Legal Philosophy
Andrew Altman
Differentiate Positivism and Natural Law
Natural Law
Positivism
Legal obligation HAS moral
Legal force has NO moral
force.
force
Legal obligation is explained
Legal obligations essential
in terms of POWER,
ingredients are moral right
COERCION, CONTROL and
and wrong
RULES
Natural Law Universally
Positive Law (a.k.a Human
valid principles of right and
Law [by Aquinas]; rules laid
wrong
down by state.
Overview of Natural Law:
Overview of positivism:
1. Thomas Aquinas
1. John Austin
Traditional Version
Law as a Command
2. HLA Hart
2. Lon Fuller Fidelity
3. Ronald Dworkin
Law as Primary and
Interpretative
Secondary Rules
What is Natural Law Theory?
Natural Law theory provides that there is a relationship
between morality and legal rules laid down by the state and there
are certain universally valid principles of right and wrong rooted
in the nature of things and knowledgeable by human reason. It
claims that there is a higher law by which goodness law could be
determined.
1.

TRADITIONAL VERSION (Thomas Aquinas)

Decisions in hard cases

in which the law does not have an a clear answer
requires moral judgment
Ronald Dworkin
The universe is governed by a single, self-consistent &
overarching system of law, and the entire system is under the
direction and authority of supreme law giver and judge GOD.
According to him, Human law occupies the lower system tier of the
system.
System of law, according to hierarchy:
1.1 Eternal Law Principle of action and motion that
God implanted in things in order to enable them to
perform their function.

2.

FIDELITY TO LAW / INNER MORALITY OF THE LAW

(Lon Fuller)

Moral lesson to obey the law always exists, and any

system necessarily abides to certain moral principles; legal laws
must be applied prospectively; humans are agent capable of choice.
If moral principles are obeyed, there is no other choice but to obey
the law.
Exception when laws may be applied retrospectively:
2.1 When the law expressly provides
2.2 When the law is curative or remedial
2.3 When the law is procedural (i.e Rules of Court)
2.4 When it is favorable to the accused
3.

INTERPRETATIVE THEORY / IDEA OF FIT

(Ronald Dworkin)

Law consists of explicitly adopted rules plus the best

moral principle that can be understood to lie behind those rules.
What are the 2 aspects of fit?
3.1 Legal Consistency underlying principles that must
be logically consistent with the rules
3.2 Power to help provide a rationale
According to Dworkins principle, is wiretapping illegal under right
to privacy even though it was not specifically mentioned in US 4 th
amendment?
YES. Wiretapping is illegal under right to privacy even
though it was not specifically mentioned in US 4th amendment.
There are two aspects of privacy: (1) physical aspect; and (2)
informational aspect. Although there is no physical violation of
right to privacy, control over personal information that could be
used to harm other person is against the law if we will scrutinize
it under the MORAL PRINCIPLES.
Discuss skepticism
Skepticism is the attitude of doubt that what that
requires an individual with questioning minds that what the other
one is saying is not actually true. The two (2) types of skepticism
are:
3.1 External Skepticism There is no right answer to a
moral or legal question
3.2 Internal Skepticism Law is so riddled that there is
no right interpretation of what the law is.
What is Legal Positivism?
Legal Positivism is an approach in understanding the
positive law that rejects the necessary link between positive law
and morality.
1.

LAW AS A COMMAND (John Austin)

Laws are laid down by superiors to guide actions of those

under them. And since laws are species of command, there are (1)
a duty and (2) consequence of non-performance.
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Is violating a law without a punishment degrades that law?

NO. Although there is no punishment for violating
positive morality, people in general have a low opinion of anyone
who does not violate them. Therefore, even though there is no
punishment, the law is not degraded.

3 Models to characterize law

Discuss sovereignty in terms of John Austins Theory

Sovereignty is the supreme and uncontrollable power
inherent in a State by which that State is governed. Sovereign is
defined solely in terms of power, not in terms of justice or any
other moral concept. It is merely a LEGAL and not a MORAL one.

3.

The existence of law is one thing;

Its merit or demerit is another.
John Austin

1.
2.

Coercive model (classical) John Austin; Bad mans POV

Game model HLA Hart ; Laws are voluntary and not
compelled; Determining the rules of the game is one thing,
determining if the game is worth playing is another
Belief-based model Hans Kelsen; strongest form of
positivism

2 Basic claims of Legal System:

1.
2.

That the context of the law is just;

That the sanctions for breaking the law are just, even if the
context of the law is not just

Discuss the difference between Medieval and Modern Society.

Medieval Society
Modern Society
Aquinas developed Natural Austin developed positivism
Law theory
Dominated by a single church Fragmented into completing
& single value system
creeds & conflicting ideas
about justice and goodness.
2.

LAW AS PRIMARY AND SECONDARY RULES

(HLA Hart )
A person has an obligation
when a certain rules applies to them.
HLA Hart

Law does not merely command, but empower

individuals to do things that would otherwise be impossible to do
without laws. Legal rules (i.e Obligations and Contracts) that
empower individuals are called power-conferring rules.
When does rules exist?
Rules exist when people generally:
2.1 Act in a certain way (External, which involved outward
behavior).
2.2 Regard deviations from that way of acting as something to be
criticized (Internal, which involves attitude of the people)
Legal System is a system that brings together both primary and
secondary law.
1.
2.

Primary Rules rules imposing obligations

Secondary Rules could not exist without primary rules
2.1 Rule that singles out rules that actually imposes
obligations
2.2 Rules that specify how legally valid rules be changed
2.3 Rules that empower specific individuals to apply
societies legally valid rules.
Making Sense of Modern Jurisprudence:
The Paradox of Positivism & the Challenge for Natural Law
Phillip Soper

3 Context of Jurisprudence:
1. The Study of law
2. The Science of law (i.e. analytical jurisprudence explores
the basic meaning of legal concept)
3. The Nature of Law/ Legal Theory/ Maze of Metaphysics
(I.e. revolves around the question what is law and positivist
v. natural law)
Two dimensions of legal theory:
(1) Perspective
[Dimension/
Inquiry into the
Audience]
nature of law
Insiders POV Motivated by
citizen, lawyer,
application of
judge, or other
legal norms;
legal officers
what is law
Outsiders POV
Sociologist or Disinterested and
legal
detached;
philosopher

(2)
Goal of the Study
To know about specific
details of what is the
case and what I
ought to do
Knowledge about
reality and differences
in legal systems

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