CHAPTER 16

LEGAL PHILOSOPHY SCHOOLS OF THOUGHT

FORMALISM
 LEGAL FORMALISM

RULES FACTS
APPLICATIO
& N OR
PRINCIPLES CASE
 FORMALIST FICTION

• Mental construct that believes that the process leading to

the enactment of laws had already included normative or
other societal considerations.
“It is the letter that killeth’ but the
spirit that giveth life”
 INTENTIONALISM

ORIGINAL
UNDERSTANADIN
G&
ORIGINALLISM

ORIGINAL ORIGINAL
INTENT MEANING
CASE STUDY #1: Cayetano vs.
Monsod
 TEXTUALISM

ORDINARY
READER’S
SOCIETAL
UNDERSTANDI
UNDERSTANDIN
NG
G
CASE STUDY #2: Flag salute law:
Gerona and Balbuena cases
CHAPTER 17
VARIOUS MORAL APPROACHES
ETHICAL RELATIVISM
 ETHICAL RELATIVISM

 Greek historian of 5th Century BC

 “Different societies have different moral codes”
 ARGUMENTS ADVANCED BY
RELATIVISTS

• Different societies have different moral codes

• There is no objective standard that can be used to judge one societal
code better than another
• The moral code of our own society has no special status; it is merely
one among many
• There is no “universal truth” in ethics; that is, there are no moral
truths that hold for all peoples at all times
• The moral code of society determines what is right within that society
• It is mere arrogance for us to try to judge the conduct of other peoples
1. DIFFERENT SOCIETIES HAVE
DIFFERENT MORAL CODES
2. THERE IS NO OBJECTIVE STANDARD THAT CAN BE USED
TO JUDGE ONE SOCIETAL CODE BETTER THAN ANOTHER

3. THE MORAL CODE OF OUR OWN SOCIETY HAS NO

SPECIAL STATUS; IT IS MERELY ONE AMONG MANY
4. THERE IS NO “UNIVERSAL TRUTH” IN
ETHICS; THAT IS, THERE ARE NO MORAL
TRUTHS THAT HOLD FOR ALL PEOPLES AT
ALL TIMES
5. THE MORAL CODE OF A SOCIETY
DETERMINES WHAT IS RIGHT
WITHIN THAT SOCIETY
 6. IT IS MERE ARROGANCE FOR US TO TRY
TO JUDGE THE CONDUCT OF OTHER PEOPLE
CRITICISM
 Professor James Rachels of the University of
Alabama

• Fallacious
1.Different cultures have different moral codes
2.Therefore, there is no objective truth in morality. Right
and wrong are only matters of opinion, and opinions vary
from culture to culture
• Jus Cogens
• Vienna Convention on Law of Treaties
LESSONS ON RELATIVISM
CHAPTER 18
VARIOUS MORAL APPROACHES
 UTILITARIANISM

• “Greatest happiness theory”

• Ethical theory first systematically proposed by Jeremy
Bentham and his student, John Stuart Mill.
• Its main tenet is that one must act so as to promote the
greatest happiness or pleasure to the greatest number of
persons.
 UTILITARIANISM

• An act is morally right if the good elements or effects of

the act surpass the bad ones.
• In general utilitarianism judges the moral wort of an act
according to the goodness or badness of its consequences.
• An act is good if it contributes to the overall utility.
 UTILITARIANISM

• For Bentham – mankind had been placed by nature under

the governance of two sovereign masters: pain and
pleasure”. That which gives happiness or pleasure to most
people is good; while that which bestows pain or misery is
evil
 UTILITARIANISM

• While Bentham failed to distinguish on the various types

of pleasure, Mill argued that indeed there are higher as
well as lower pleasures. He said the higher pleasures are
more valued by competent judges than the latter; by
“competent” is meant those who experienced both lower
and higher pleasures.
 UTILITARIANISM AND
AUTHORITY
• A utilitarian would answer that a state it entitled to
authority if and only if it promotes more happiness (or
“goodwill” and “common benefit”) for the greatest
number.
• A Hobbesian might argue that to achieve this the state
needs a strong central government and a strict
implementation of laws. To be an effective government
coercive action is necessary to implement crucial
government coercive action crucial government programs
for the people; otherwise anarchy and chaos will result.
 UTILITARIANISM AND
AUTHORITY

• However, Bentham might disagree, which believes that

the greatest happiness for the greatest number will be
best served by minimum governance and limited state
authority. He believes that the happiness of every citizen
who comes in contact with state actions and decision shall
always be considered in the formulation of state policy.
 ACT UTILITARIANISM

• Argues that one ought to do those acts that produe the

greatest good for the greatest number.
• For act utilitarians, like Bentham, rules or laws may be
abandoned in those instances where following them would
not produce the greatest good for the greatest number.
 RULE UTILITARIANISM

• A rule utilitarianism will not necessitate the abandonment

of rule. It will only choose those rules or set of rules that
will produce the greatest good for the greatest number.
 UTILITARIANISM AND LAW
• Bentham thought that the principle of utility can guide the
lawmakers in that for him the purpose of law and morals
are on: To promote the general welfare of the people
• Mill said that: The sole en for which mankind are
warranted, individually or collectively, in interfering with
the liberty of actions of any of theirs number, is self-
protection. The only purpose for which power can be
rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others.
 UTILITARIANISM AND LAW

• The 1897 Philippine Constitution mandates the state to

promote “general welfare” and “common good” for the
people.

• The Revised Administrative Code also defines the general

welfare clause.
 CRITICISM
• Consequence proposition – Actions are judged good/bad,
right/wrong by their consequences. Right actions are
those with best consequences.
• Happiness proposition – in evaluating consequences, the
only important thing is the amount of happiness (or
unhappiness) that was caused. Right action causes more
happiness than unhappiness.
• Equality proposition – in computing overall happiness,
each one’s happiness is equally important. Every person’s
welfare is equally important.