CHAPTER II – LEGAL ISSUES AND THEORIES

Rapha Ezequiel David B. Calabiao

Law

– A rule of conduct, just, obligatory, formulated by legitimate power for common observance
and benefit.

Classification of Law:
1. Jural or human law – refers to sanctioned or enacted law such as statutes, case laws, normative
rules, and percepts.
2. Non-jural or meta-lega law – is not anchored on human promulgation, such as divine law,
natural, and physical law.

Classical Elements of Law:

1. Reasonable ordinance (rationis ordination) – Law is a reule of human acts, commanding man to
act or refrain from acting. The Measure of human acts is human reason, for it is by reason that
we perceive and put order into things. A reasonable law is necessary, useful, clear in
expression, and adapted to place and time. The people are moved to follow the law when it is
reasonable. If the law is unreasonable, it would only invite define and dissent.

2. The Common Good (bonus communis)- Principles of basic humanity transformed once purely
ethical norms into legal claims. This does not mean that all ethical norms should be law, but
only those rules concerning man with his fellow man. The common good need not be the
utilitarian ethic of the “greatest happiness for the greatest number.” Rather, it is the good of
everyone. It bears the common aspirations of all, not just the majority. As Aquinas suggested,
the lawmaker should frame the law according to how the subject matter commonly occurs in the
majority of instances. It is not expected that the legislator should assume every single case
possible, but should leave room for exceptions when the law need not be strictly applied.

3. Promulgation – The final step in the law-making process is its notice to the public. The public
should be able to take notice of the law, whether by publication or by hear yeas as a matter of
due process.

4. Legitimate Authority – Due promulgation must come from a competent authority, not from
some private individual or public official unauthorized to enact a law. Law must be issued by
one who takes charge of the community, who wiled the power to promote the common interest.

Modern Standards for the Rule of Law

The “Eight Routes of Failure” for any legal system by Lon Fuller:
1. The lack of definite rules or law, so that disputes have to be decide ad hoc.
2. Failure to publicize or make known to the affected party the rules.
3. Unclear or obscure legislation.
4. Retroactive legislation.
5. Contradictions in the law.
 6. Demands that are beyond the power of affected parties to observe.
7. Unstable legislation or frequent changes in the law.
8. Discrepancies between adjudication/administration and legislation.

Classifications of Law
1. As to whether a right or a procedure is given:
2. Substantive Law – establishes rights, duties, and corollary prohibitions.
3. Remedial or Procedural or Adjective Law – prescribes the manner of administering, enforcing,
and appealing, amending, and using legal rights and claims.

2. As to scope:
1. Public or Political Law – concerned with the struts of government, the relationship between the
individual and the State.
2. Private – concerned with the rules governing the relationship of individuals.
3. Criminal – violation of public order through punishable acts or omissions
4. Civil – the rules of civility such as on the property, marriage, succession, contracts and torts or
private wrongs that result in damages.
5. Mercantile – deals with artificial personalities such as corporations and the management of
business; that which regulates commercial transactions.

Civil Code System – refers to a legal system based on coded laws. Laws are codified through
parliamentary statutes, following the tradition of compiling rules.

Common Law System – is based on case law or judge-made law that relies on precedents set by judges
in a court case.

Islamic law or Sharia law – is based on the moral precepts of Islam.

Main Issues in Law

Law and Truth

Revised Rules on Evidence Article 128

Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in
a judicial proceeding the truth respecting a matter of fact.

Section 2. Scope. — The rules of evidence shall be the same in all courts and in all trials and
hearings, except as otherwise provided by law or these rules.

Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and
is not excluded by the law of these rules.

Section 4. Relevancy; collateral matters. — Evidence must have such a relation to the fact in issue
as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability or improbability of the fact in
issue.
 Law, Authority, and Force

- According to Max Weber, in Politics and a Vocation, there are three (3) ways how authority is
establishes itself in society: CHARISMA, TRADITION, and LAW.
a. CHARISMA – the personal ascendancy that an individual gains in society through his
passion and determination for a cause or a mission, and his success gives him an aura of
legitimacy.
b. TRADITION – is where the authority from a leader, due to his magnanimity or extent of
influence in a society, is passed on his successors of heirs. Society has made the leader its
center and identity, and will want to keep him alive through his descendants who suppose to
bear his qualities.
c. LAW – though legal dominion is impersonal. The officers operate through institutions,
under given terms, periods, and conditions. Laws are legitimate if they are enacted
according to rules or procedure and individual merit.

Anarchists think that any form of violence or coercion is wrong and offends morality; that the
only real law must be consensual, which appeals to the conscience and free will of constituents, not to
threaten of punishment.
For followers of Confucius, the ingredients to prevent and arrest crimes are not stern
punishments but a sense of shame for misbehaviour, cultivation of virtue, education on right and
wrong, respect for authority, and the elderly showing of good examples.
Social contact theorists think that constraint is necessary and moral, since society is presumed to
have given consent to follow the law in establishing a Constitution and a Big Brother – State. Through
election and suffrage, citizens are able to renew their consent and to amend the terms through the
representatives they vote for. Anyone who does not wish to follow the law can opt to leave the State,
be a fugitive, and live in a lawless society, if there is any. Shape up or ship out.
The psychologist, Sigmund Freud observed that reward and punishment are needed for
discipline; the way a child needs to be trained, so does society. The machinery of regular enforcement,
police presence, etc.
Under international law, states are tempered from using force against each other since every
member of the international community is by principle given equal status and consideration in domestic
policies. States are presumed to be civilized, matures, self-determining, and independent.

Law and Mores

What is legal is not necessarily moral and what is moral is not necessarily legal. A moral obligation
does not establish a juridical or legally enforceable tie, still, there is a relation recognized by law itself
between law and morality. In fact, moral customs are among the sources of law.

According to Tolentitno, “laws and morals have a common ethical basis and spring from the same
source – the SOCIAL CONSCIENCE.

A contractual obligation is considered void when it has an illicit cause. It is illicit if contrary not just to
law, but also to “morals, good customs, public order and public policy.”
Religious/Sectarian vis-à-vis Secular/Public Morality
By morality, there is distinction between SECULAR morality and RELIGIOUS morality.

DISTINCTIONS between RELIGIOUS and SECULAR morality:

1. In States where there is no separation between Church and State, the law must reflect what is
considered moral by the established religion. For states that follow the non-establishment
clause, a secular morality known as “public morals” are considerations of the law. It is a
morality not based on religion but on popular ideals, source of law, and common aspirations as
expressed in policies. Obedience to the law is itself and Secular Morality.
2. Religious morality concerned with private matters and preferences, such as sexuality and the
censorship of ideas and beliefs, while Secular morality concerns itself with public order and
affairs.
3. Religious morality’s ultimate basis is the word of God as expressed though a sacred medium,
while Secular morality is associated with “natural law morality” according to common-held
principles of reason, justice, and equity, deemed as “natural” aspirations of men.

Law, Justice and Equality

 Justice is “equality in proportion,” to render to each what is due. Justice to give what one deserves
according to the same standard, measure, or formula.
 On the basis of the same standard, provisions will not be equal if the circumstances are not equal,
but must be equal if the circumstances are the same. This is referred to “legal or formal equality.”
 This is where reasonable classification comes in. Everyone classified to the same category is to be
treated the same way. Like shall be treated alike. Equality does not have to mean same treatment,
but “proportionate treatment.”

Egalitarianism
 The statement that “all men are born equal” refers to one’s humanity, meaning, we are all equal in
terms of being human, and the rights pertaining to the fact of being human, regardless or status.
 This does not mean that all men are born in equal condition and will live equally. Special
arrangements, however, may be made to eliminate or minimize historical or cultural disadvantages
resulting from conditions that we do not have choices, such s gender, being born to poverty,
handicaps, race, religion, or color.
 Equality before the law is a universal enfranchisement so that everyone will at least have the “equal
chance” to develop as any other human will do. Life is not fair indeed, but since man, despite the
inequities of life, aspires for fairness and a more just society, he must make equality a goal.
 That “men are created equal” means “equal with certain unalienable rights, among which are life,
liberty, and the pursuit of happiness.”

The Blindfold of Justice

 A theory of Justice, John Rawls proposed that we should do a “reflective equilibrium” whenever we
make laws or decisions.
 Law on Property and Economics

Public Property (Article 420, NCC)

Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some public
service or for the development of the national wealth.

Private Property (Article 425, NCC)

Art. 425. Property of private ownership, besides the patrimonial property of the State, provinces, cities,
and municipalities, consists of all property belonging to private persons, either individually or
collectively.

Law, Freedom and Duty

Freedom is the capacity to enjoy the good life and fulfill one’s potential without harming others
or one’s self.

Law, Guilt, and Personal Liability

Articel 19-21 (NCC)

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.

Article 4 (RPC)
Art. 4. Criminal liability. — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.chanrobles virtual law library

2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or an account of the employment of
inadequate or ineffectual means.