Politics, and Philosophy

Philosophy of Law; Introduction

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7 years ago

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HEADERLecture 1

PHILOSOPHY OF LAW

INTRODUCTION

Nomenclatural Distinction

At the outset, a cursory distinction must be made between “Philosophy of Law” and “Legal Philosophy.”

While they both deal with Philosophy and Law, their field of emphasis is different. Philosophy of law is a
branch of philosophy, and therefore deals primarily with philosophy. Legal Philosophy is a discipline in
law, and therefore deals primarily with law. In other words, their operational base is different –
Philosophy of law is within philosophy, whereas Legal Philosophy is within the legal academy.[1]

Consequently, because of the difference in their field of emphasis, it seems that philosophy of law is
broader than legal philosophy. Philosophy is an all-encompassing subject that may have as its subject
matter anything under the sun; thus the so-called philosophy of X, and philosophy of “law” is just one of
the many possible subjects. The philosophical approach is highly abstract and seeks for the ultimate
“whys” and “wherefores.” Legal theory deals specifically with how institutions and legal processes are
legitimized or justified.

The distinction, however, is never clear. They overlap in terms of subject and themes. And in pursuit of a
more academic discussion in a post graduate course, it is becomes unimportant to distinguish
philosophy of law and legal philosophy.

Schools of Thought

There are two major contending schools of thought in philosophy of law: Natural Law Theory and Legal
Positivism.

From the time of the ancient Greeks until the seventeenth century, natural law was the only legal
theory. In brief, natural law understands law as an “ordinance of reason” and “intimately connected to
morality;” hence law must be “reasonable” and “just” otherwise it is not law.

Legal positivism came after, generally contending that the law is only a kind of “social technology” which
does not necessarily have a moral character. Under this theory, what the law does is regulate the
behavior of its subjects and resolves conflict between them.[2] A law exists not for its moral or rational
underpinnings but because of the social mechanisms that promulgate it.

Roughly speaking, the two schools of thought differ in their understanding of philosophy of law, in that
natural law almost makes philosophy of law as a “branch of moral or ethical philosophy,” while legal
positivism takes philosophy of law as the “philosophy of a particular social institution.”[3]

Natural Law

Legal Positivism

Law and morality are intimately connected.

Law and morality are different.

Philosophy of law is a branch of moral philosophy.

In essence, law is an ordinance of reason.

In essence, law is an institutional construct.

Questions asked in Philosophy of Law

Logically, the main question asked in philosophy of law is “what is law?” And since it could be answered
in various ways, contending schools of thought also emerge from it, as seen above.

Other related questions would be – Is law the same as morality? Is it universal or just man-made? Does
it have a specific purpose? Is it for the attainment of justice? Is it for socio-economic and political
equality?

From these questions, it could be seen that philosophy of law has a very vast scope. To limit it therefore,
emphasis will be placed upon leading theories only (Natural and Legal Positivism).

Importance of Studying Philosophy of Law

It must be emphasized that the social, moral, and cultural foundations of law, and the theories which
inform and account for them, are no less important than the law’s “black letter.”[4] A well-entrenched
understanding of the printed provisions of law is impossible without knowing the spirit or philosophy
which lies underneath them.

Legal theory has a decisive role to play in defining and defending the values and ideals that sustain our
way of life.[5] When laws are threatened of abolition, the defense always takes recourse in philosophy
to justify their existence. Laws are at the heart of every legal institution, including the state, so that the
latter’s legitimacy is anchored on the philosophical justification of its laws.

Philosophy of law is not among the eight bar subjects. But this does not mean that it is useless in taking
the bar exams. Many examinees fail because they lack philosophical aptitude and legal reasoning. In
truth, the foundation of all bar subjects is philosophy. Take for example, constitutional law and criminal
law:
Constitutional law, which is under political law, is based on critical liberal philosophies enunciated in
Article II (Declaration of Principles and State Policies) of the 1987 Philippine Constitution. Understanding
the philosophical foundations of political law is necessary to tie up its numerous details.

Criminal law likewise is based on various philosophies and principles. Rationalizing in the bar demands a
succinct understanding of how crimes are defined and penalized according their underlying
philosophies.

For example, why should penal laws be liberally interpreted in favor of the accused? Justice, which is a
principal philosophical concept, explains this, in that the disadvantaged (in this case, the accused) should
be given more opportunities than the advantaged (in this case, the State). Thus, the rule of “pro reo,”
which provides that the penal laws should always be construed and applied in a manner liberal or
lenient to the offender. This rule is constantly repeated as the underlying philosophy in many provisions
of the Revised Penal Code.

Philippine criminal law system uses four philosophies depending on the circumstances:

(1) Classical or juristic theory which provides that man, who possesses freedom, is punished for an act or
omission willingly, voluntarily, and intelligently performed. Under this philosophy, man should be
adjudged or held accountable for wrongful acts so long as free will appears unimpaired,[6] so that if one
lacks free will and intelligence, he should not be held criminally liable. This philosophy is so basic it is
implied so often in bar exams.

(2) Positivist or Realistic Theory which provides that man is inherently good but his acts or behavior may
be conditioned by his environment. Because of his upbringing, social environment and associations he
may become socially ill or an offender. Thus, under this philosophy penal laws are meant to “reform”
and the penalties are considered “corrective or curative.” Jails are reformatories and penalties are
imposed after an examination of the circumstances of the offender. Unlike the classical theory which
emphasizes on the offense itself, positivistic theory emphasizes on the offender and not on the offense.

(3) Ecclectic (or mixed) Philosophy which combines good features of classical and positivist theories. As
contended by many legal theorists, the classical theory should be applied to heinous crimes, whereas
the positivist should be applied to socio-economic crimes. The Philippines generally adapts the eclectic
philosophy

(4) Utilitarian Theory which is based on the maxim “greatest happiness for the greatest number of
people.” The fundamental idea behind this philosophy is that the primary function of punishment in
criminal law is to protect the society from potential and actual wrongdoers.
 Approaches in Legal Theory

There are two approaches in explaining law: descriptive and normative.[7]

Descriptive legal theory seeks to explain what the law is, and why, and its consequences.[8] It is about
the facts of law. It has three principal types:

“Doctrinal” which seeks to elucidate a case based on an “underlying theory”;

“Explanatory” which seeks to explain why the law is as it is; and

“Consequential” which seeks to discuss the consequences of a certain set of rules.

Normative legal theory is concerned with what the law “ought to be.”[9] It is about legal values. As such,
it is closely associated with moral and political theories.

It is important to note however that there is no rigid delineation between the two. Often, one approach
leads to another. Utilitarian normative theory, for example, needs a descriptive account of the
consequences of rules, and vice versa.

NATURAL LAW THEORY

Origin of the Natural Law

The term “natural law” is misleading. At the outset, it must be made clear that it does not refer to the
physical laws of nature. Natural law theory originated from ancient Greece as a moral theory, which
tackles the all-important issue of the “good or happy life.” Evidently, it seeks to explain the nature of
morality and not of law. The question, therefore, is how did it become a theory of law?

During the time of the Greeks, they consider morality as field separate and distinct from religion. For
them, a person can be moral even if he does not believe in God. This is possible by means of reason.
Man is capable of thinking, and it is by using his reason that he comes to understand what is right from
what is wrong. He knows, for instance, that killing is wrong because it is unreasonable and not because
God says so. A person therefore learns to act rightly through his faculty of reason.

Since acting rightly necessarily includes others, as one’s act affects another, individual morality includes
politics. Knowing how to act rightly necessarily involves how to deal rightly with one’s fellow men.
Inasmuch as a moral theory involves a rule of conduct, it may also be construed as law in the broad
sense. It is along this line that the moral theory developed into a theory of law.

Aristotle was among the first thinkers who embarked on the Natural Law Theory. The bridge between
“individual morality” and “social life” is encapsulated in his assertion, “man by nature is a political
animal.” This means that it is ingrained in each person the natural tendency to live in a community
because it is only in a community that he becomes truly human – he becomes civilized, educated, and
truly rational. Outside the city (polis) he is just an animal.

Also according to Aristotle, man is a rational animal, meaning aside from his “animality” he also has
“rationality,” which puts him over and beyond other animals. Part therefore of the nature of man is his
“reason.” In other words, it is natural for man to reason out. It is along this context that a moral theory,
which is based on reason, is said to be a natural theory. When one says, “there is something unnatural
about this,” what he means is there is something unreasonable about the thing. So if one acts
irrationally, it also means he is acting unnaturally. It could therefore be said that the essence of law
under the natural law theory is its rationality.

At this juncture, the connection of the following concepts must be clear: morality – reason – law.
Morality demands reason. Reason determines the conduct of man. The dictates of morality and reason
constitute a norm of conduct. Morality and reason are the bases of law.

It was said earlier that ethics leads to politics. In fact, the ethical treatise of Aristotle was a preamble to
his political treatise. The pursuit of the good life requires a determination of the ideal society or
government. Nowadays, “natural law” is generally taken to mean only that part of the original moral
theory which explains the way that the law, narrowly construed, operates as part of a broader moral life
of individuals.[10] Political institutions, like the states, are legitimized or justified by the moral theory
from which they were drawn. Using the political institution theorized by Plato (teacher of Aristotle), for
instance, the rulers must be wise and morally upright. Their authority depends on how they embody the
political criteria of wisdom and morality.

Rome carried on the Greek and Hellenistic philosophical tradition, but it was faced with the problem of
relativism, which rejected universal standards. In the ancient world, Rome was the melting pot of all
cultures, beliefs, and races, somewhat analogous to the United States now. Relativism was particularly
dangerous to the Romans because it could prevent them from formulating workable rules which would
uniformly govern everyone within their vast empire. The varied customs and practices of particular
cultures must be replaced by laws recognizing universal or common nature.[11] The natural law theory
as it developed in Rome sought to explain the common nature of man which is the basis of morality or
natural law.

The dominant philosophical school in ancient Rome was Stoicism. The stoics emphasized on the
importance of the performance of one’s duty and accorded primacy to reason. According to them, a
person should concern himself only of the things that are within his power, i.e. only the activities of his
soul. He cannot control all other things. Thus, to be rational simply means to perform one’s duties
conscientiously and virtuously because he cannot do otherwise.
What resulted from this philosophical activity was the jus gentium, which was a legal order meant to
apply to all persons throughout the Roman Empire. At first, the jus gentium was applied to foreigners or
second class citizens, then eventually it became a superior legal order or universal application. The rise
of jus gentium into a superior law was caused by the need to provide a universal standard of justice.

Critical to understand under the natural law theory, as expounded by the Stoics, is the Latin maxim “lex
injusta non est lex” or “an unjust law is not a law.” If, for example, the Philippine Congress passes a
statute that orders the taking of all farmlands without need of paying the landowners, then such statute
would provide no law at all. It must be pointed out clearly, that an unjust law (or one that deviates from
the principles of morality or natural law) is not even a “bad law” but rather, it is not a law at all. Natural
lawyers are not just evaluating the morality of the law. For them, if a law is immoral it is not law at all.

Positivist thinkers are particularly critical at this Latin maxim. They distinguish law from morality.
They argue that an immoral law, as long as it was passed validly by the Legislature, is still a law, even
though it is a bad law. For them, a law may be wicked or harsh, but just the same it must be followed
because it is still the law. This does not mean that the positivist lawyers are not critical about the
morality of the law. Jeremy Bentham, for instance, a positivist, was a social reformer, who attacked
“bad” laws. Take note, however, that what he attacked was the “wickedness” of laws and not the
“validity” of the laws.

Hence, the principal goal of natural lawyers is to establish the connection of law and morality. The
intimate connection of the two should support their claim that an immoral law is not a law at all. It must
be emphasized that as a natural lawyer one does not just evaluate the morality of a law because even
the positivists do it. What a natural lawyer does is to establish the necessary connection of law and
morality so that when a norm is immoral, he could prove that it is not a law itself