JURISPRUDENCE

- Knowledge of or skill in a matter of law

- Kinds:
o Particular (or National)
 The science of any one of such systems of law or any portion of it.
 Practical jurisprudence
 Study of laws and rules within a specific community e.g. Philippine laws, US laws on contract
o General (or Universal)
 The study of principle, notions, and distinctions which are common to the systems of law
 Kinds:
 Analytical/Clarificatory Jurisprudence
o Aims to understand the nature or essence of law
o What are laws? What is the law? What is the relationship between law and
power/sociology/morality?
 Normative Jurisprudence
o Concerned with evaluative theories that provide a foundation for the law
o What is the proper function of law? What moral or political theories provide a
foundation for the law? What is the proper function of law?
 Related to Philosophy of Law and Legal Theory
 Subtle differences:
o Emphasis
 General Jurisprudence focuses on what the law is and what the law ought to be
 Philosophy of Law also pays attention to peripheral questions, like appraisal of
other legal phenomena normally considered to be part of political philosophy
o Perspective
 Philosophy of law’s perspective is narrower – the basis for the study of law is
naturally philosophical
 Philosophy of Law = rational inquiry into the nature of law, legal
reasoning, and other legal phenomena, as well as the rational
consideration and appraisal of normative issues related to law, like the
obligation to obey the law, the enforcement of morality, the problems
of ideal justice, liberty, punishment and the like
 Use of philosophical perspective in studying law and assessing the
various sociological historical anthropological or other scientific
approaches towards law
 General jurisprudence
 Thoughts about law on the broader possible basis, like sociological,
historical, psychological, anthropological
 Legal theory deals with the specific question of “What is the nature of the law?”
- Conclusion:
 - Tasks of a Philosophy of Law
o Law Crafts
 Advocacy
 Counseling
 Judging
 Lawmaking
 Administering
o Characteristics
 Provides a constructive account of legal practices that reveal how and when to achieve valid results.
 Continues to seek the helpful clarity which the analytic tradition offers but appreciates more deeply that
which conceptual analysis resolves rather than the few issues in the Philosophy of Law.
 Hears the voices of the thick description of legal practices
 provides an account of how multi voiced rhetorical methods can actually converge on a just resolution of
a legally situated human event
 Like any adequate social theory, it would be simultaneously empirical, interpretative, and critical
 Open to humanistic or interpretive styles of thought
 Open to and interested in the results and methods of the social sciences
 Requires the philosopher of law to process intellectual virtues – including political judgment
 Elaborates conditions of a legal validity
o Conclusion
 Legal practice can never be naturalized but interpretations and critique of legal practice can converge on
the truth of human situation

HISTORY OF PHILOSOPHY OF LAW IN THE WESTERN WORLD

Hellenistic Law (383 AND 323 BC)
- Code of Hammurabi
o consists of 282 provisions
o carved into a block of stone
o sample provisions:
 if any one ensnare another, putting a ban upon him, but he cannot prove it, then he that ensnared him
shall be put to death (DECEIT)
 if any one bring an accusation against a man, and the accused go to the river and leap into the river, if he
sink in the river his accuser shall take possession of his house. but if the river prove that the accused is not
guilty, and he escape unhurt, then he who had brought the accusation shall be put to death, while he who
leaped into the river shall take possession of the house that had belonged to his accuser (TRIAL BY
ORDEAL)
o Is this a Law?
 No because a law should be brought about by deliberation
- Characteristics
o the entire eastern Mediterranean region — including Greece Egypt and most of western Asia (remains of the
Persian empire) — fell under Macedonian rule
o The new political conditions of the Hellenistic era had an impact on philosophy in general, and legal philosophy in
particular
o Hellenistic thought responsible for the shift of power from polis to empire
o Increased mobility of intellectuals, as scholars migrated to new centers of learning such as Alexandria
- SOPHISTS
o stressed the distinction between nature (phusis) and convention (nomos) and they put laws in the latter category.
o Believed that laws are what is approved and enacted by the majority
- PHUSIS Thinkers
o natural philosophers who differentiated the senses of the concept of phusis
 Nature as Default
 Nature as the way things tend to be if nothing is done about them
 Nature as Achievement
 nature as a thing’s natural state can be seen as something that has to be achieved. Nature-as-
achievement can, in turn, be seen in two ways:
o as scouring off all foreign accretions in order to get down to an original, unsullied,
simplicity (nature-as-recovery)
 o developing one’s innate tendencies in order to achieve one’s telos (nature as
completion)
 Nature as Recovery
 nature as origin, unsullied simplicity
- PLATO AND THE ACADEMICS
o Thinkers and philosophers who were often employed to advise on legal codes:
 Socratic Dialogues
 Minos
o Only just laws are laws
 On Justice
o judges determine what is just and what is unjust, they employ speech in the same way
that weighers and measurers employ scales and measuring sticks to determine what is
heavy or light, long or short
 Therefore, what sort of thing must justice be, in order for it to be true that
speech is the tool for resolving disputes?
 Demodocus and Sisyphus
o tackled how deliberation and debate in assemblies and courts could be a rational way of
settling issues
- ARCESILAUS
o No philosophical questions can be decisively settled, so it is imperative to suspend judgment
- PYRROHONISTS
o law defined as a written contract among citizens backed by punishment
o Carneades
 Combines both Sophist and Phyrronist arguments
 if justice were a matter of nature rather than convention, all countries and all eras would have
the same laws (like Pyrronists)
 justice clashes with self-interest (like Sophists)
- ANTIOCHUS OF ASCALONA
o Argument
 Reason is shared in common by all rational beings
 For those to whom reason is the same, right reason is also the same
 Therefore, right reason is shared in common by all rational beings
 Law = right reason
o Therefore, law is shared in common by all rational beings
o Those who share law in common are fellow citizens
 Therefore, all rational beings are fellow citizens.
- ARISTOTLE AND PERPATETICS
o Aristotle
 law is a sort of order, and good law is good order, reason unaffected by desire
 rule by the best man vs rule according to laws
 a society of equals by its very nature excludes the arbitrary rule of one man
 equity is just, not legally just but a correction of legal justice
o Peripatetics
o Theophrastus
o Demetrius, Strato, Lycon
o Demetrius of Phaleron
- POLYBIUS
o There is a need for checks and balances because no one is to be trusted with complete independence and
unchecked power — because complete and unchecked power tend to cause corruption
- EPICUREANS
o justice is defined as a contract, yet the wise person behaves justly without being motivated by fear of punishment
- STOICS
o the only true law (the only rule that has normative authority) is right reason
Roman Law (439 BC)
- Periods
o As Kingdom
 ASSEMBLY
 Senate
  Curiate Assembly
o primary purpose: elect new kings and to affirm decrees issued by kings
o As Republic
 ASSEMBLY
 Comitia
o assembly of Roman citizens
o gather to enact laws, elect magistrates, try judicial cases
 Tributa
o assembly of the Tribe (based on only thirty-five Tribes)
 Centuriata
o assembly of centuries
o Classes
 Officers
 Infantry
 Unarmed adjuncts
o president was usually a Roman Consul (the chief magistrate of the republic)
 Concilium
o Assembly of a specific group of citizens
o E.g. Plebian council
o As Empire
 ASSEMBLY
 Senate = source of all laws
o Emperor sits as head
- Roman Legal Development
o comprises more than a thousand years of jurisprudence — from the Twelve Tables to the Corpus Juris Civilis
ordered by Emperor Justinian I.
o before Twelve Tables
 the people began their activities without fixed law, fixed rights; all things were ruled despotically by kings
 kings would base their rulings in Etruscan religion, emphasizing ritual
o The Twelve Tables
 Terentia Arsa, the plebeian tribune proposed that the law should be written
 ten roman citizens were chosen to record the laws
 the first codified laws containing not only substantive laws but procedural laws as well was
written
- Roman Legal Science
o Gnaeus Flavius
 Formularies of words that had to be spoken in court to begin legal action
o Pre-classical period
 Marcus Tullius Cicero

Medieval Law (4the Century AD to 14th Century AD)
- Renaissance Law
CONCLUSION:
- Ancient Greek
o First to recognize philosophy’s importance in the study of law.
o Provided the concepts, principles, and theories underlying law
- Ancient Roman
o Responsible for the many methods, approaches, and systems of law we have.
o First to classify law into procedural and substantive, and to focus on the study and development of procedural laws
- Medieval Thinkers
o e.g. Augustine, Ambrose, Aquinas
o Invoked their knowledge of Ancient Greek law, Ancient Roman law, and Christianity in their discussion of law
- Renaissance Thinkers
o Applied different epistemological techniques available during that period (e.g. rationality, empiricism, idealism,
humanism
- Implications on Modern Law
o Many substantive and procedural laws and their jurisprudential systems can be traced back to the history of law in
the western world
 - History of Law in the Western World = History of Western Legal Philosophy
o Factors that lead to Western Legal Philosophy
 Ancient Greek law and legal thought
 particularly philosophies of, for example, Sophists, Natural Thinkers, Socrates, Plato and
Aristotle and their followers as well as the Socrates, Plato, and Aristotle and their followers ,as
well as the Hellenistic schools of philosophy.
 Roman Jurisprudence
 Combined influence of Greek philosophy and Roman law, evident in Cicero, Seneca, Epictetus,
and Marcus Aurelius
 Major Religions
 Judaism
o Mosaic code through the Talmud
 Christianity
o Emerged as a jewish sect, influenced Western European medieval legal philosophers
 e.g. St. Augustine – his philosophy of law was a confluence of Greco-Roman
and Judeo-Christian thought
 Islam
o Represented by Alfarabi, Avicenna, and Averroes
o Presented a fundamental challenge to European philosophers of law in the Middle Ages
 Revival of Roman law, development of Christian canon law, & rise of Scholastic philosophy in Middle Ages

HISTORY OF PHILIPPINE LEGAL SYSTEM

Pre-Spanish Period
- Social and Political Organization
o Classes:
 Chiefs or ruling class
 Title of chief was inherited
 Exercised absolute powers in his own barangay
 Source and executor of laws
 Freemen
 The majority of the people were freemen
 Slaves
 Aliping namamahay
 Aliping saguiguilid
o Customs
 e.g. on Marriage
 Damages were imposed on a breach of promise to marry so-and-so and did not fuldill his word,
he was fined and the other party took away a great part of his property
o Criminal Disputes
 Ranging from insults to stealing, burglary, assault, and murder
o Civil disputes
 Involving trade, land, loans, and disputed possession
o Trial
 Procedures for Complaint and Trial
 Freeman or timawa could hold particular member of the community, and they can approach the
village chief with a complaint
 The complainant would accuse the one suspected by name and a charge would be brought
against that person who would be summoned to appear before the judge
 If village chief was unable to settle the matter brought before him, the matter would move to
arbitration
 Each village had individuals known to be fair and impartial, and it is these individuals who would
be called upon to try to mediate the dispute
 If a compromise could not be reached through mediation, the matter would be returned to the
village chief
 He would ask each of the individuals in the dispute to take an oath whereby they promised to
abide by his judgment. This was taken prior to the calling of witnesses.
 Examples:
 o Trial by Ordeal
Spanish Period
- Based on the History of Spanish Law
- Pe
American Period
- Realization that some laws from Spanish era in the Philippines are still applicable, hence must be adapted instead of
creating completely new ones
o same case as in Cuba, Guam. and Puerto Rico
o GENERAL ORDERS — Americanizing the Philippine Laws
- Jones Law - bicameral legislative body comprised of Senate and HoR
Japanese Period
1. Puppet Government
2. Appointed Jose P. Laurel
3. Jose Yulo was the Chief Justice of the Supreme Court
4. Supreme Court decisions during this period, were recognized and are found in the Philippine Reports, the official
publication for Supreme Court decisions
Post World War II
⁃ Codification of the Philippine laws in line with customs, practices, and idiosyncracies of the FIlipino people.
Martial Law
⁃ ConCon for the draft Constitution, final draft completed on Nov 29, 1972
⁃ It was ratified Jan 23, 1973
⁃ pictures were the basis for ratification
Post-EDSA Revolution
⁃ New constiution
⁃ Provisional Constitution was made in transition to the new Constitution
⁃ as a Revolutionary Leader under the Provisional Constitution, Cory was able to establish the Family Code

LEGAL SYSTEMS
⁃ CIvil or Code
⁃ provisions from a code of laws
⁃ central source of law: codes of laws such as constitutions or statutes (laws passed by congress)
⁃ doctrine: Jurisprudence Constante
⁃ a long series of previous decisions applying a particular provision of law is important and may be
determinative in subsequent cases
⁃ Common or Case Law
⁃ CSL: decisions by judges of courts of law and similar tribunals
⁃ Doctrine: Stare Decisis [from the maxim “stare decisis et non quieta movere” (to stand by decisions and not disturb
the undisturbed)
⁃ when a decision is made, they stick to it
⁃ courts generally abide by precedents and not disturb settled matters
⁃ Exceptions:
⁃ matter of first impression
⁃ equity
⁃ Customary
⁃ CSL: body of norms called “customs” Customary Law
⁃ Mixed
⁃ Code Law + Case Law for the Philippines

SOURCES OF PHILIPPINE LAWS

1. Constitution
⁃ fundamental law of the land
2. Executive (promulgates/issues)
⁃ Presidential Decrees
⁃ Executive Orders
⁃ Memorandum Circulars
⁃ Administrative Orders
⁃ Proclamation Orders
⁃ Administration Regulations issued by departments
 3. Legislature
⁃ Statutes - since 1900, broken down as follows
⁃ Acts — 1900-1935
⁃ Commonwealth Acts — 1935-1945
⁃ Presidential Decrees — 1972-1985
⁃ Batasang Pambansa — 1979-1985
⁃ Republic Acts — 1946-1972, 1987-present
⁃ Martial Law, both President and Batasang Pambansa issue laws at the same time
⁃ In addition, President was issuing
⁃ General Orders
⁃ Letters of Instruction
⁃ Memorandum Orders
⁃ Memorandum Circulars
⁃ Letters of Implementation
⁃ Letters of Authority
⁃ Administrative Orders
4. Court Decisions (Art. 8 of the Civil Code of the Phils)
5. International Laws (Article II, Sec. 2 of 1987 Constitution
6. Local Legislations (Local Government Code)
7. Customs (but not contrary to law, public order, or public policy [Art. 11 of Civil Code of the Philippines])

NATURAL LAW
⁃ Ideas on Higher Law
⁃ Sophocles’ Antigone
⁃ Nuremberg Trials in World War II
⁃ trials of 24 chief Nazi war criminals at the International Military Court
⁃ they just obeyed the orders, and therefore did not break any laws of Germany at that time (as
they were killing the Jews)
⁃ problems in jurisdiction prevented the crimes from being prosecuted under the laws of any one
of the participating nations
⁃ identified that there is a need for higher law in cases like these and in restoration of property
⁃ these problems were solved by calling the indictments “crimes against humanity”
⁃ supra-positive – above legislation enacted by man
⁃ Martin Luther King Jr.
⁃ made a case against racial prejudice under existing laws, citing Thomas Aquinas’ writings about Natural
Moral Law
⁃ “a just law is a man-made code that square with the moral law or law of God”
⁃ Jose Abad Santos
⁃ ordered to be executed by the Japanese, after refusing to cooperate with them because of a higher
allegiance/duty
⁃ talked to his son before his execution. “It is an honor to die for one’s country. Not everybody has
that chance”
⁃ Ancient Greek Ideas of “Nature”
⁃ Pre-Socratic
⁃ First Principle (archae) — basis of all the other elements and capable of explaining the cosmos without
recourse to mythological deities
⁃ Thomas Aquinas
⁃ Elements of Law
⁃ Ordinance of Reason
⁃ Law belongs to reason as the rule and measure of human acts is reason, and reason established
the nature of law
⁃ Reason has parts:
⁃ practical reason
⁃ pure reason — theoretical reason
⁃ mathematical truths
⁃ necessary truths
⁃ measure of human acts = reason
⁃ One in Charge of Community (Promulgator)
 ⁃ a law must come from a legitimate authority, the one appointed by the community to do the
task.
⁃ when the law-maker is not appointed by the community, then it is not a law
⁃ Common Good
⁃ Eudaimonia
⁃ Must be found within the community, and directed to the community, to lead them to happiness
⁃ Promulgation
⁃ it must be announced and read before enforced
⁃ what if not promulgated by publication?
⁃ stuff like morality natin – still enforceable because it’s accessible to our conscience
⁃ conscience is the application of knowledge to activity
⁃ Types of Law
⁃ Eternal Law
⁃ God’s wisdom in both planning and then creating the universe
⁃ Natural Law
⁃ rational creature’s participation of the eternal law
⁃ it’s eternal law accessible to humans through reason
⁃ Human/Positive Law
⁃ reflective of Natural Law devised by human reason
⁃ this includes our written laws.
⁃ Divine Law
⁃ will of God as revealed in the Scriptures
⁃ Necessary because
⁃ Humans need explicit divine guidance on how to perform proper acts
⁃ uncertainty of human judgement needs a check
⁃ Humans need divine insight on issues they are not competent to judge like the interior
movements of the mind
⁃ To prove that God will punish deeds that go beyond the ability of human law to punish
⁃ Unjust Law
⁃ perversion of law
⁃ should an unjust law be obeyed?
⁃ 2 readings:
⁃ Strong Thesis: An unjust law is not a law at all.
⁃ a rule that is not a rational standard for conduct is no law at all
⁃ Weak Thesis: Unjust law is still a law by classification, but not by clarification and ability
of reason to access it.
⁃ Conclusion
⁃ Aquinas didn’t form the word Natural Law but first one to make a theory about it
⁃ Natural law
⁃ Eternal law accessible through reason
⁃ Law
⁃ Ordinance of reason, created for the common good, made by one who has care of the
community, and is promulgated