Theories of Law and Legal Theories

by Eunice Soriano Baliong - 1L

There is a big difference between theories of law and legal theories. Theories of law
speak of a branch of philosophy in law. It seeks to answer the questions: (1) What is law? And
(2) What is the nature of law? In contrast, legal theories pertain to judicial reasoning, seeking to
answer the question: How judges decide? It is commonly called as jurisprudence, which is the
study of legal reasoning as opposed to case law which pertains to the case itself or the ruling of a
particular case. Thus the difference between jurisprudence and case law is this: jurisprudence
tells you how the judges decide, while case law is the decision on a particular case. It is simply a
matter of “how” and “what.”

Now before we expound on the different theories of law and legal theories, it is important
for us to define first what is law. (I just realized that his is in fact already part of theory of law
since we beg to define law.) My professors at the University of San Carlos have a common
favorite defintion. (Of course there are many definitions out there but this one seems to be a
favorite.) It is the definition posited by the Spanish lawyer, Felipe Sanchez Roman.

For Roman, law has two senses from which he arises his definition: (1) In the general
sense, law is the science of moral rules founded on the rationality of man for invididual and
social ends; and (2) in the specific sense, law is a rule of conduct, just and obligatory,
promulgated by competent authority for the common good and welfare which constitutes an
obligatory rule.

Now law has some general classifications. For one professor, it is either Jural Law and
Non-Jural Law. Jural Laws are prmulgated by society and it too has senses: (1) particular sense
refers to a statute or a decision of Court, (2) collective sense refers to a branch of law or system
such as Civil Law, for example which is further subdivided into laws that govern Family
Relations, Labor Law, Obligations and Contracts, Transportation Law, etc., and finally (3) law in
the abstract sense is too look at law as an ideal, a belief or precept. Non-jural law on the other
hand are laws promulgated by a higher authority, something that is beyond society such as God
or in Nature. Thus it includes Moral Law, Divine Law, Natural Law, and Physical Law.

Now that we have at least a general idea of what the law is, let’s talk about the nature or
law. There are many different theories regarding the subject but for the purpose of this essay, I
will confine it to the three major theories of law posited by Professor Largo: Natural Law
Theory, Legal Positivism, and Legal Realism.

First, Natural Law Theory. This is divided into two epocs: (1) The Traditional
Natural Law Theory and (2) The Modern Natural Law Theory. Traditional Natural Law
theorists hold that the validity of law is tested on the basis of a higher law—reason, divine law,
morality.

One of its major proponents is St. Thomas Aguinas who in his famous work Summa
Theologica said that law is valid if it is for the common good, if it arises from reason. Aquinas is
famous for saying, “Law not based on reason is a perversion of the law,” meaning that it is not
law. Influenced by his religious beliefs, this reason, for Aquinas, is something that is given to
men by God. Thus reason, is a God-given skill that man must use for judgment, and that laws
must conform to the “reasonableness” set forth by God. They are just if they conform to man’s
conscience.

Another major proponent of the theory is Marcus Tullius Cicero. For him, “true law is
right reason in agreement with nature.” And this nature is man’s natural capacity to discern what
is right from what is wrong. Thus, Cicero believes that laws are inherent and universal.

Many years of development and philosophizing led many to question the ideals of
Aquinas and Cicero. Legal Positivism rose in direct opposition to them. (But we will talk about
that theory later.) Thus, Modern Natural Law theories arose to refute the legal positivists.

Lon Fuller is one of those who assailed legal positivism. He argued that law is a guiding
principle, a tool, a means to an end. And in order to achieve this end (common good), the law
must be founded on some “internal morality,” not the goodness or badness, but rather the
substance. And this “internal morality” for Lon Fuller is the following: (1) general, in the sense
that it applies to all men, albeit recognizing classification and differences (2) promulgated
(announced) (3) not retroactive, (4) understandable (5) consistent through time/history (6) not
contradictory and (7) effectuated as announced. Law cannot be law if these “moralities” are not
complied with.

But Fuller is not alone on the table. Ronald Dworkin is another modern natural law
theorist who argued that law is not merely the statutes, constitutions, and norms by the letter, but
also includes the moral justifications that form the lettered law. He believed that some
justifications are not etched on ink and paper but that they can provide legal justification in so far
as they are the justifications from which the letter-laws are formed. This is called the spirit of
the law or the reason of the law.

Secondly, we have Legal Positivism. As mentioned earlier, legal positivism is in direct

opposition to Natural Law theories. For them, law is a social fact or convention. Simply put,
there is no necessary connection between law and morality. This is best known as the
Separability Thesis, and in lay men’s terms, this is best identified by the statement, “What may
be legal may not be moral and what may be moral may not be legal.”

Legal Positivism arose from John Austin who is considered the Father of Legal
Positivism. He conceived the Command Theory which defined law as rules handed down by a
sovereign and backed with threats and force. Simply put, law is law if it has sanctions once
disobeyed.

This positivist view of a “sovereign” that hands out laws but does not habitually obey
them himself arose from the Social Contract Theory which seeks to answer the question: What
justifies political authority, or what is the justification for political authority? Many theoriests
gave answers, one of which was Thomas Hobbes who believed man’s state of nature is brutish
and war-like and that political authority must weild absolute power to quell it. For John Locke
however, man’s state of nature is a knowledge innate in his person to distinguish what is right
and wrong (awfully sounds like Cicero doesn’t it?) but that at some point, man will disagree on
matters, hence a conflict of interest; as a solution, man must surrender part of his freedom to a
political authority on the condition that said political authority must promote common welfare.
A breach of this “contract” would allow men to revolt and overthrow political authority. We see
this in the French and American revolutions which are feavily inspired by Locke. Even our own
People Power is a demonstration of a breach of the social contracy theory. Yet still another
theorist, John Jacques Rosseay argued that freedom is not surrendered but rather people have a
common will to yield to political authority.

But not all were in agreement to John Austin, Thomas Hobbes, John Locke, J. Bentham,
and John Jacques Rosseau’s stands on legal positivism. H.L.A. Hart reasoned that laws need not
necessarily have sanctions for them to be laws. In disagreement to Austin’s command theory,
Hart believed that anything in the law is there because some person/group intentionally or
accidentally put it there. He believed that constitute not only the legal norms but also the
practives and customs that may not be coercively enforced but are still laws in themselves. He
adhered to the existence of Primary Rules and Secondary Rules wherein Primary Rules are
conduct specific while Secondary Rules are those rules which enact the Primary Rules.

Another legal positivist was Hans Kelsen who argued that law is valid if it is accepted
and obeyed by those governed by said laws. He believed in the hierarchy of norms which all
begin from a Basic Norm wherein all other norms must adhere to. The principle of
constitutional supremacy arose from Kelsen. The Constitution, the supreme and fundamental
law of the land is an example of a basic norm wherein all other acts, decrees, and laws must
confrom to.

Lastly for theories of law, we have Legal Realism which defines law as a “body of
dogma and systematized justifications.” And we have American judge, Oliver Wendell Holmes,
Jr., to take credit for it. He is famous for saying, “The life of the law is not logic but
experience.” Simply put, Legal Realism is all about Holmes’ Bad Man Theory otherwise known
as the Prediction Theory. It posits that the law is what the bad man thinks it is. In other words,
laws are instituted to tell people what to do to avoid material consequences.
 Finally, let’s talk about the legal theories. There are four of them.

Firstly, we have American Legal Realism, which as the name suggests, influenced by
Holmes of the Bad Man Theory. (Remember guys, now we’re talking of how judges decide or
why they think a certain way. These theories provide explanation.) Skepticism is its other name
and this legal theory insists that legal reasoning is not independent from personal, moral, and
political considerations. Thus, judges decides according to how the facts of the case strike them.
Taking this into account, case decisions are rationally indeterminate which is why sometimes,
case decisions are post hoc rationalizations of decisions arising from non-legal considerations.
Thus emplying Legal Realism accuses a judge of judicial activism (as opposed to judicial
restraint) wherein the judges decide not as the law mandates but according to some personal or
political considerations. Famous example of this is the Supreme Court’s decision on Estrada vs.
Arroyo.

Secondly, we have in direct contradiction to American Legal Realism, Legal Formalism

and it is founded by Justice Antonin Scalia who said, “The rule of law is about form.” Legal
formalists argue that legal reasoning must be limited and confined to the very letter of the law.
Thus judges must decide not according to what they think the law should be, but rather on what
the law is.

Thirdly, we have Constructivism/Interpretivism. It is founded by the modern natural

law theorist, Ronald Dworkin. This may sound like American Legal Realism but don’t get
confused. Whereas American Legal Realism provides personal or political justifcaitions which
may not be legal, the Interpretative Approach provides moral and legal justifications which
may be absent from the letter of the law but are understood to be the legal reasons that form the
law. Thus judges decide not as the law mandates but through a moral standard or justice that
made up or formed the norm or law. Dworkin used the famous case of Riggs vs. Palmer which
argues that no one should profit from his wrongdoing, to justify this thoery.

And now last but not the least, we have Critical Legal Studies, which is a very extreme,
negative outlook on the law. Personally, I relate easily to this because it is the common view
held by students of literature who analyze literary works from a Marxist perspective. Basically,
CLS holds that law is inadequate and empty. It believes in legal indeterminacy wherein statutes
and case law cannot determine the outcome of the case. It holds that legal reasoining is Marxist,
influenced by those in power to use the law to their advantage. Proponents of CLS say that true
freedom cannot be achieved in a “legal” regime because the “legality” of the regime is in itself
corrupt. Rights are correlative in so far as every entitlement of right is limited by the competing
rights of others. To put it blunty, law is just politics.

Sounds awfully familiar, doesn’t it, Dead Poets?