Law In General
In strict sense, it is the law of religious faith
which concerns itself with the concepts of sin
and salvation, of death and life, of the temporal
and the spiritual.
2. Natural Law
A. Historical Background
Plato & Aristotle
Natural Law as discipline must be follow for
individual and common good.
Stoics
Conduct and activity must conform to Natural
Law being its order and stability.
Epictetus
Natural Law id the subjective or inward of man
which the capacity for righteousness, justice,
fairness and equality. It is the real good in
human being.
St.Paul
Natural Law is the human conscience guided
by love and reason.
St.Augustine
Natural Law is the natural good faith of human
being.
A Concept and Precepts
Concept:
Natural law is 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. Applicable to everyone.
Percept:
Righteousness, Justice, Equity and Fairness.
What is due to anyone may not be to others.
1
Law means any rule of action or order of
sequence from which any being whatsoever
either will not, or cannot, or ought not to
deviate.
Rule of action is any warrant, instruction,
regulation, measure, or decision governing any
act, conduct, transaction, or proceedings,
including their consequences.
Order of sequence is any system arrangement
or consecutiveness, or any uniformity of a
given group of phenomena.
Point of non deviation:
will not - determination to abide with, or to
avoid violation of the rules of action and
order of sequence. Future conformity,
prospective agreement or eventual
compliance.
cannot - there is no other way except to obey
or comply with a rule of action or an order of
sequence no matter how much the desire
exists to act other wise.
ought not - obligatory form of non deviation.
Its a choice between action or inaction,
following a rule or refraining from following it.
NON JURAL LAW
It is the laws in metalegal sense
1. Divine Law
In general sense, it is the entire system of
perfection with God in his infinite wisdom has
imprinted in the whole of nature to govern its
operations and where all that there in it is ran
in perfect order.
Moral Norms are patterns of good and
exemplary conduct which sets the moral tone
or feeling of the community.
3. Physical Law
It is the totality of uniformities and orders of
sequence which combine together to govern
physical phenomena.
JURAL LAW
A Particular Sense
Law is used in PS:
Preceded by indefinite article a (a law).
Statute a written enactment of the legislative
body composed of provisions for definite
situations, which contains incentives and/or
sanctions as means of enforcement.
Used as any rule, regulation, or opinion
given by an agency of the State.
A Collective Sense
Law is used in CS:
As gross or bulk of specific or particular laws
relating to one subject matter or obtaining in
a given society.
A Abstract Sense
Law is used in AS:
Preceded by the definite article the (the
law).
Special form of social control.
It is made up of body pf percepts, traditional
and received ideals.
1 Percepts
Rules and instructions as well as directions
and trends concerning a given subject matter.
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B. Relation to Divine Law
C. Basic Characteristics
D. Place and Function in the Legal Order
Natural Law is not a legal system but merely a
body of principles that serves as a guide in
legal ordering of community because being
subjective it is difficult to apply it in the conduct
of human affairs that may lead to criticism.
Justification Use
Natural Law has been utilized to justify
innovation in the legal system.
Oppositive Use
Natural Law does not advocate disobedience
to unjust statute, order or decisions. In relation
to individual to state, Positive law should
conform to the Natural law to be effective and
binding because the resistance to unjust and
unfair laws is an application of the Natural law
as means of abolishing it.
Regulatory Use
Natural Law should not be a separate force
lodged in the courts in competition with the
sovereign power lodged in the people. Any
statute incompatible with the Natural law is not
to be considered law but an invalidation or
corruption of law.
Interpretative Use
Natural Law has been untilized as an
interpretative device to express or to put into
effect the legislative intention.
1 Moral Law
It is the absolute precepts of good and right
conduct as basis of its norms. It is ethical in
foundation. It is enforced only by indefinite
authority for there are no courts in which it is
administered.
 4. Ideals
E. The Folk-Soul It is necessary in order to arrive at legal order.
Types: Juristic,Ethical,Political,Economic
All its element form the common
consciousness and intelligence of the people. THE HISTORICAL PERSPECTIVE
Together it reveal the peoples cultural identity.
1 Historical Position as a Starting point
Folklore
Folksaying Folksoul is the origin of the law, product of
Folkway the way of life of the people.
Folksong The continuing interest in the philosophy of
Folkdance the natural law.
Folkart
1 Presence of the Historical Element in Law
1 Law as the Life and Spirit of the People
The changes in the social existence of
The law is a revelation and a development of people
the national spirit, it is regarded as having a The progressive condition of its politico-legal
certain historical justification since it is in direct development.
relation to the national life and development of
the people. 1 Historical View Limited in Scope

6. Basic Foci of Historical Jurisprudence Law is not universal, there is not only one and
same law for all people everywhere. It is only
State is regarded as the highest expression national because it is conservatively oriented
or personification of the volkgeist or diwa of in time,place,character, and individuality of a
the people. particular group of people.
Law is found and not deliberately made.
5. Basis of the Historical Approach
A The State and the Folk-Soul
A The OBLUTIACS of the People
Social and Political Progress:
1. Vertical (Personal) - earliest form of social Opinions
living was the Family or Clan. Beliefs
2. Horizontal (Communal) - several family Longings
groups formed temporary alliances for Usages
certain purpose: Traditions
to ward off some common danger Idiosyncracies
to pursue some common interest Arts
to perform some common ritual obligation Customs
Superstitions
The State is the highest expression of the folk-
soul or diwa of the people. It is the highest It constitutes the traditional sources of the rural
national structure erected by the socio-political substance or materials of people. It is the
development of the people. common conscience of the people.

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people to whom such rules and regulations are
addressed.
THE TELEOLOGICAL PERSPECTIVE
That the law is ordained for the achievement of
the precepts of the natural law, namely
righteousness, justice, fairness, and equity in
the legal order.
The achievement or realization of these
precepts in the legal order is the telos
(purpose) of the law.
1 Natural Law Basis
The teleological concept of law is based on the
natural law philosophy; natural law has a great
more deal to do in shaping the concept of law
than any other idea.
The teleologists consider the natural law as the
most potent force in the development of legal
institutions and legal concepts.
It is upon the precepts of the natural law that
the completeness of the legal order can be
achieved.
The teleological school of jurisprudence
believes that a good legal order can be
deduced from the natural law, thus making the
law universally valid for all people.
3. Greek Concept
Socrates, Plato and Aristotle believed that
good faith in dealing with one another is the
condition of life in society.
Plato explained that what is important in
human relations is not the use of power but the
observance of honesty and good faith.
A. Socrates Absolute Justice (469-399 B.C.)
4
F. The Law not deliberately made
Law is not deliberately made by the effort of
human reason, but is the product of common
conviction. The growth of the law is a historical
process. It is the product of the national genius
or common consciousness, developed by the
steady growth and development of the people
themselves. Its meaning and implications on
the community are handled by a specialized
group of individuals (Jurisprudents, Jurists and
Legislators).
1 Similarity between Legal Orders of
different people
A The Historical Reason
The process of development of a people many
factors or trait-complexes have been
assimilated by the people. These factors and
contracts also explain the phenomenon that
some aspects of a foreign legal system, which
are inconsistent with the oblutiacs of another
group of people coming within the control and
dominion of the former, need a considerable
amount of imposition.
G. The Jurisprudential Reason
The percepts of justice and fairness are said to
be permanent and present in all men
everywhere since they are said to be
impressed or implanted in the human heart
and mind. It ought to explain the resemblance
or similarity in some aspects of the legal
orders of different people.
1 Value of Historical Doctrine of Law
The historical view of the nature of the law
highlights the point that rules and regulations
governing human conduct can better survive
the tensions of social and political existence if
and when they are in accordance with the
kindred consciousness and convictions of the
carpenter, or whatever.
There is justice when a person fulfills his or her
proper function and not to take up the role and
position of another person.
Rational justice means the preservation of
peace and harmony and the prevention of
disturbance.
This rational justice has been discredited on
the basis of ethical principle of meliorism, that
is to say the inherent right of human beings to
move on and better the quality of their lives.
C. Aristotles Particular Justice (384-322 B.C.)
Aristotle denied Socrates concept of absolute
justice as too exacting for it demanded the kind
of moral excellence which is the culmination of
all virtues. He observed that the concept of
justice advanced by Socrates and Plato was
simply unworkable.
Hence, Aristotle taught his students the sound
sense view of justice. Justice which grows out
of the sense of fair equality. In other words,
justice is sound and sensible when, in light of
events and circumstances, it is fair and equal.
He insisted that a person cannot be unfairly
treated even with his consent; consent, even if
given, cannot justify an unfair and unequal
treatment.
This insight later became the basis of Roman
law concept of volunte non fit injuria.
Thus, for him, the hallmark of a persons moral
nature and good faith is fair equality.
4. Roman Concept
A Marcus Tullius Cicero (106-43 B.C.)
Cicero brought the Greek concept of the
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First consideration, no person is intentionally
bad or evil. He aroused in his students a love
for justice to combat the skepticism of the
Sophists. For Socrates, the failure to do what
is just and avoid what is unjust is really due to
morbid physiological appetites, mistakes, or
even bad company.
Second consideration is that only the
temperate person knows himself or herself and
thus able to bring his or her emotions under
control. A temperate person will do what is
virtuous and just, in relation to rights and
obligations a temperate person will do what
ought and avoid what ought not, and in relation
to other persons, a temperate person act
properly, patiently enduring when necessary
Temperate individual is a good, happy and
sound person able to judge whether his or
her acts and their consequences would be
just (virtuous) or unjust (vicious)
Basis for Socrates motto Know Thyself
B. Platos Rational Justice (429-348 B.C.)
There is hierarchy of reality he drew a sharp
dividing line between ideal reality and physical
reality.
Plato posited the concept of justice yielding to
the rational mind. For him, the human beings
are capable of discerning justice from injustice
even in their minds.
Rational Justice is sufficient to enable human
beings to attain their moral nature and good
faith, keeping their self-respect by doing good
and fulfilling their proper functions in society.
It dictates that every individual in the state
should attend to his or her own function
whether he or she is a legislator, a judge, a
soldier, a lawyer, a teacher, a physician, a
Jus Civile are rules established by the citizens
to govern themselves.
Jus Naturale are rules which are common to all
other persons based on the natural law.
For Gaius, those that are in derogation of the
precepts of the natural law are not laws at all.
If such laws exist it is due to the sanctions
attached to them, not because they are laws.
In identifying the aberration in the legal order,
he advocated for the continuing process of
removing such unnatural laws from the books.
Laws must be reexamined by the law making
body every once in a while.This process
would, then, provide the means for legal
cleansing whereby any abnormality or
irregularity in the legal order could be adjusted
to comply with the end and purpose of the law.
5. Thomas Aquinas (1224-1274)
Based on the claim of the Romish church to
absolute authority by advancing the idea that
some church doctrines are defensible by
formal reasoning while others which cannot
stand the process of reason must be accepted
by the clergy and the laity alike on faith alone.
He thought of the law as an institution
ordained Heby God.
The source of the law was substituted by the
power of God who, expounded by him, is the
Legislator of the whole of justice and Governor
of all things.
He expressed the view that a human being has
a rational soul and a will of his own. This is
ordained by God for the universal good.
Like Plato, he believed in the rational capacity
of human beings. For him, what is capable of
human reason is not divine law but only the
6
nature of the law into contact with the Roman
legal system at a time when there was a need
for some means of controlling an empire
already extending around and beyond the
Mediterranean Basin, which Cicero admitted
was won by injustice both to gods and men
Since human kind is governed naturally by
utility, then to rule the different races and
cultures under the Roman dominion effectively,
the law must be based on the principle of
utility, that is to say in the interest of the ruler
and not for the interest of the governed.
Introduced compulsion as an element of the
law.
Posited the idea that the law cannot be an
effective means of social control on the basis
of rationality alone but must also be able to
compel obedience.
Compulsion is necessary to Romans since at
that time they do not share the same culture
with those people with whom they conquer.
Individual persons fulfill their promises and
comply with their obligations not only because
they are intelligent or rational persons but
also due to their deep-seated desire to avoid
undesirable consequences which would
inevitably follow for non-conformity with the
law.
Opposed prudence as a factor in determining
the justice or injustice of an act or conduct. An
act may be prudent but the question remains,
is it fair and just?
An honest person might be a fool but he
remains a just person while a prudent person
would both be wicked and unjust.
D. Gaius
One of the foremost figures in philosophy and
jurisprudence.
Advanced his general philosophical thought
which he called transcendental philosophy
which means learning or understanding
determined by the mind itself. It is pure
knowledge for it is not gained by or through
sense experience.
precepts of the natural law.
The Jus Divinum is known only to God.
He held that human reason influenced as it is
by physiological sensations is not sufficient to
bring human beings to a correct understanding
of what is right and just; reasonable people
have varied ideas as to what is right and just.

He emphasized the idea that the nature of law
cannot be understood in the terms of sense
experience; law to be an effective means of
social control must be based on the a priori
precepts of natural law.
In studying human consciousness and
conduct, Kant reached back to Platos concept
of reality yielding only to human intelligence,
which Plato called Ideas.
He reiterated the almost forgotten idea of
Sophia or right reason to bring human beings
into a harmonious relationship with one
another.
By sophia, he meant that the intuition to do
and promote good and evil. The precepts of
natural law are based on the right reason.
Thus, human law has the nature of the law
when it partakes of right reason.

Justice - is considered by him as the habit

He made it very clear that the human mind has
whereby man renders to each one his rights
the capacity to construct or harmonize ideas
by a constant and perpetual will. In two
and concepts even prior to experiencing them
aspects, justice as an ethical virtue and
by the physical senses.
justice as a juristic norm.
This transcendental philosophy is an intense
Law and sovereignty - the public welfare or
reaction to the theory of knowledge of David
the common happiness is the first concern of
Hume (1711-1776), which for the latter, all
the people since the direction of anything to
knowledge is derived from observation which
this end is the concern of those whom the
is to say from sense experience.
end or purpose belongs.

Kant feels that Humes idea is not pure

Immutability of Law - the Greek and Roman
knowledge but only experiential knowledge
philosophers believed that the law pervaded
which varies from person to person, from time
with justice and equity is immutable and
to time, from place to place which are not
inflexible but Aquinas advanced the idea that
binding on all persons in all places in all times.
changes do occur in the subsequent
applications of the law and these changes
7. The Utility Supplement
may be by expansion or contraction in
accordance with the civilization of the time
The doctrine of utilitarianism is traceable to
and place.
Epicurus (342-270 B.C.). Teleologists with the
utilitarian complexion have considered
6. Immanuel Kant (1724-1804)
happiness as the measure of goodness or
badness of acts and their consequences
based on the hedonistic calculus.
7
development.
The ultimate test of goodness or badness of
an act or conduct is the quantum of justice
(pleasure) or injustice (pain) that it yields.
He concluded that the law is a system of social
control directing and governing persons to the
maximum of happiness and to the minimum of
misery. Thus, rules should be judge by their
tendency to promote happiness and avoid
pain.
He specified the ends of the law, namely, to
provide substance, to produce abundance, to
encourage equality, and to maintain peace and
security and this can be accomplished by
direct pursuit of pleasure and avoidance of
pain.
E. Jherinian Concept
It is advanced by Rudolf von Jhering (1818-
1892) who disagreed with Benthams
individual interests. According to him, the law
should address the realization of the
partnership of the individual and society.
While individual persons have their own
interests to consider they cannot ignore the
interests of society of which they are parts.
This is called social utilitarianism.
F. Hegelian Concept
Georg Frederich Hegel (1770-1831) stated that
his basic premise that the law is the product of
an evolutionary process and this appears in a
dialectic pattern.
This pattern is a design in which one element,
called thesis, is followed by an opposite
aspect, called antithesis, and the struggles
between them is either wholly or partially
settled or reconciled by the synthesis of the
8
Hedonism comes from the Greek hedone
which means pleasure.
Epicurus maintained that in the formation of
values and judgments it is the intellectual and
aesthetic happiness or pleasure that are the
highest good.
The basis of the telos of the law are the
pleasures that are conducive to repose of both
individual and societal needs.
Pleasure does not mean continuous drinking,
satisfaction of lust, wealth but sober reasoning,
searching for the motives for all choices.
It is based on two considerations, namely,
what pleasures ought not to be sought and
what pains ought to be avoided in the legal
ordering of the society.
There are two (2) distinct stages in the
development of the modern utilitarian
supplement of the teleological perspective of
the nature of law, namely, the Benthamite
Concept and the Jherinian Concept.
A. Benthamite Concept
Jeremy Bentham (1748-1832) advocated a
formula based on calculations of the social
utility of an act or conduct in the determination
of the validity of positive law.
He placed the emphasis of his law reform
movement on the greatest happiness of the
greatest number of individuals in the
community.
His utilitarian individualism as William
Friedman puts it, was directed towards the
emancipation of the individual from restrictions
and inequalities which impeded the free play of
forces that were to give full scope to individual
Socrates refused and told Crito that while he
considered the sentence passed upon him to
be unjust and unfair it was, nevertheless,
lawfully rendered and, therefore, he intended
to obey it.
8. Positivist Approach
Separation of law from moral law and natural
law.
A Law not Necessarily A Moral Concept
The idea of teleologists that the norms of
moral and natural laws are inherent in the
concept of the nature of the law is emphatically
criticized by the positivist school of
jurisprudence. John Austin, advocated the
separation of law from moral and natural law,
as follows:
With the goodness or badness of the law as
tried by the test of utility or by any of the
various tests which divide the opinions of
mankind it has no immediate concern.
Law is not necessarily interested in an axiom
for the norms of morality.
Relation between law and morality is only
accidental, not direct.
Principal thrust, then, of the positivists is to
keep the legal order apart from the perplexities
of ethics.
Persuaded that the legal order can exist
without conscious regard for the norms of
morality, although the latters influence are not
completely denied.
G. Uncluttered by Metaphysical Speculations
It views the issue by way of the empirical
sphere of reality the is rather than the
transcendental sphere of the ideal the ought.
9
contending views.
The opposing views or ideas are resolved by
what Hegel called the principle of identity
which states that all that is rational is real and
what is real is rational. By this, he means that
noting is real or actual unless it is intelligible or
rational as well.
The principle of identity seeks the
reconciliation of opposite views or ideas, i.e.,
reconciling thesis and its antithesis resulting in
the synthesis which then becomes the new
concept.
POSITIVIST PERSPECTIVE
1 Seed of Legal Positivism
Analytical Jurisprudence, as some are inclined
to label this particular perspective of the nature
of the law, is one of the older systems of legal
science in the sense that the beginnings of
legal science among Roman jurisprudents are
to be found in the use of analysis.
But it also deals with mature legal systems.
One of the recent methods of the science of
law.
John Austin (1770-1859) developed, uses the
method of comparative analysis. The label
positivist jurisprudence is preferable;
emphasizes the perception that the law is
consciously created by the state.
The law is positive, that is to say posited by the
authority of the state.
The seed of legal positivism was planted by
Socrates. In Platos dialogue Crito, he
recorded that the followers of Socrates escape
from prison after he was sentenced to forfeit
his life.
Law is detached from moral and natural law,
and the attention is confined to the distinction The reason for this critic is that the precepts of
and division which relate to law exclusively. the natural law are vague, for, indeed, their
meaning are not shared in common by
10. Pure Positive Law Response everybody.

A Lousanne Brand To free the concept of law from metaphysical

speculations.
Ernst Roguin of the University of Lousanne
sought the purification of positive law on the Positivists avoided the study of the nature of
basis of creative thinking. the law characterized by the ought.

The validity of positive law lies in pure juridical To examine the question of the nature of law
science consistent with the culture of the without cluttering it up with axiological
people. baggage.

H. Vienna Brand
9. Hobbes-Austin Concept
Hans Kelsen (1881-1953) of the University of
Vienna simply removed from the concept of
Thomas Hobbes (1588-1679) and John Austin
law any moral implications.
(1790-1859) are recognized as the
jurisprudents who developed the concept of
Laws must be represented empirically and
law in terms of legal positivism.
must stand on its own leg.

Hobbes stated that laws cannot be unjust

Pure positive law theory considers only
since they are made by the sovereign power.
human norms, not norms coming from other
All that is done by such sovereign power is
superhuman resources.
warranted.
Laws are viewed as pure, if there is a grand
norm and all laws must conform to it such as There must be one compelling order or
Constitution where all other laws must obliged coercive force.
to be in accordance to it.
It can be delegated by the State, to the
The Grand norm is conceived by the collective government.
will, capacity and competence of the people
free from axiological ideas. Austins stated that it is absurd to say that
positive law is void if it is not in accordance
Laws must be normative with the natural law and to proclaim generally
that all laws which are contrary to the natural
Bridges the gap of the is and the ought. law are void and not to be tolerated is to
preach anarchy, hostile and pernicious.
Collective will is achieved.
In legal positivism, Austin stated that there is a
It must be real and possible justice.
clear-cut distinction between law and morals
and between law and natural law.

10
Nature of the law must be presented Appropriate to the evil sought to be destroyed
empirically, meaning, it must stand on its own empirically validated even if inappropriate to
merit without make-up of axiological ideas. the evil sought to avoid.

It excludes any divine or natural law.

Purification of Positive Law

MODERN LEGAL REALIST PERSPECTIVE Laws must be studied as it is and not how it
THE POLICY SCIENCE PERSPECTIVE ought to operate.

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