234383119--legal-philosophy-notes 101

8/20/2019 234383119--Legal-Philosophy-Notes 101

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READINGS IN LEGAL PHILOSOPHY ANDTHEORY

CHAPTER 1INTRODUCTORY CHAPTER

DEFINITION, NATURE AND FUNCTION

Philosophy is taken from the Greek words,Philos and Logos, which means “love of wisdom”.

Philosophy is the study of the universe thatseeks to know the truth and rationalexplanation of anything.

Philosophy of Law is that branch of philosophy which deals with the wisdom of law. It studies the nature of law withparticular reference to the origin and end of law, and all the principles that govern itsformulation. It is part of practical philosophy.

The obect of philosophy of law is the studyof law in universal sense, as law can also bestudied as to its particular points in whichthe obect is J!i"i#al S#i$%#$ o!

J!isp!"$%#$.

!arts of the system of "uridical #cience are$%. !ublic &aw'. !rivate &aw

!arts of !ublic &aw are$%. (onstitutional &aw'. )dministrative &aw*. !enal &aw+. !rocedural &aw. International &aw

!arts of !rivate &aw are$%. (ivil &aw'. (ommercial &aw*. Those that govern relationships

among individuals or uridical entities.

"uridical #cience can only inform the peopleof the law among certain people in a givenperiod, answering only the uestion of what isestablished by law of a certain system -quid

juris. !hilosophy of law, however,

transcends the competence of eachindividual uridical science. It considers theessential elements which are common to al

uridical systems -/ant.

)ccording to Giorgio del 0ecchio, !hilosophyof &aw “is the course of study which de1nedlaw in its logical universality, seeks its originsand general characteristics of its historicadevelopment and evaluates it according tothe ideal of ustice drawn from pure reason.

FUNCTION OF PHILOSOPHY OF LA&

!hilosophy of law is a 2uest of law whichappeals to reason to obtain ustice.

3ne function of philosophy therefore is toformulate law that is reasonably acceptableto the people to whom it is addressed.!hilosophy of law therefore is opposed totyranny.

The practical function of philosophy is that itteaches and prepares for the positiverecognition of the uridical ideal.

CHAPTER IIHISTORY OF PHILOSOPHY OF LA&

4very branch of knowledge is betterunderstood by knowing its history. 5istory of!hilosophy is a means of study and researchwhich helps in the ac2uisition of regardingknowledge philosophies advocated bydi6erent philosophers in the past. It is astudy of how philosophers meditated uponthe problems of law and ustice.

!hilosophy in the past has been intermingledwith Theology, 7orals, and !olitics.

THE PHILOSOPHY OF ANCIENT GREECE

The general history of &egal !hilosophystarted with the ancient Greek philosophers#ocrates, !lato, and )ristotle.

In the %th century, the #ophists denied theexistence of absolute ustice. &aw to them isrelative. !lato in his Dialogue disputed the#ophists.


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So#!a'$s -+89:*99 ;( believed in a higher ustice for the validity of which it isnecessary that there is a positive sanction ora written formulation. 3bedience to the lawof the state is a duty. #ocrates in this waygave the 1rst indication of the idealisticphilosophical system.

Pla'o -+'


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conviction of the people, the kindredconsciousness of an inward necessity.

For law, as for language, there is no momentof absolute rest it is subect to the samemovement and development as every otherpopular tendency and this verydevelopment remains under the same law of inward necessity, as in its earliest stages.&aw grows with growth, and strengthens withthe strength of the people, and 1nally diesaway as the nation loses its nationality.

Eith progress of civili>ation, nationaltendencies become more and more distinctHlaw perfects its language, takes a scienti1cdirection, and as formerly it existed in theconsciousness of the community, it nowdevolves upon the urists, who thus, in thisrespect, represent the community.

LA&S AND LA& +OOS

Ae2uisites of a really good code$

oung nations, it is true, have the clearestperception of their law, but their codes aredefective in language and logical skill, andthey generally incapable of expressing whatis best, so that they fre2uently produce noindividual image...

CO((ENTS +Y PATON ON SA)IGNY

In opposition to the pure science of law, thehis'o!i#al s#hool considered law in directrelationship to the life of the community andthus laid the foundation on which themodern sociological school has built.

5ow did law came to beJ &aw evolved, asdid language, by a slow process and, and ustas language is a peculiar product of a

nationCs genius, so is the law. The source of the law is not the command of thesovereign, not even the habits of thecommunity, but the instinctive sense of rightpossessed by every race.

#uch is the approach of the historical school,and it naturally led to a distrust of anydeliberate attempt to reform the law.&egislation can succeed only if it is inharmony with the internal convictions of therace to which it is addressed.

The contribution of the historical school tothe problem of the boundaries of

urisprudence is that law cannot beunderstood without an appreciation of thesocial milieu in which it has developed. Theslow evolution of law was stressed and itsintimate connection with the particulacharacteristics of a people.

;ut in #avignyCs particular presentation therewere exaggerations of which the historicalmethod must be freed if it is to play its truepart$

%. #ome customs are not based on aninstinctive sense of right in thecommunity as a whole but on theinterests of a strong minority, e,gslavery.

'. Ehile some rules may devlop almostunconsciously, others are the result ofconscious e6ort. &aw has been usedto plan the future deliberately and notmerely to express and order theresults of past growth.

*. The creative work of the udge and urist was treated too lightly. The lifeof a people may supply the roughmaterial, but the udge must hew theblock and make precise the form oflaw.

+. Imitation plays a greater part than thehistorical school would admit.

. #avigny encouraged what !ound hastermed as “uristic pessimism”:legislation must accord with theinstinctive sense of right or it wasdoomed to failure. 5ence consciouslaw reform was to be discouraged.

CHAPTER I)

SE(INAL CONCEPTS -Philosophi#alApp!oa#h.

THE REPU+LIC+y Pla'o

CLASSICAL NATURAL LA&

)ccording to !lato, when udgment of societytakes the form of a public decision of thestate, it has the name law.


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)ccording to #ocrates, public opinion is trueopinion, and '!$ opi%io% is "is#o/$!y of !$ali'y. 5e therefore concludes that lawseeks to be the discovery of reality, or moreprecisely, it is the true reality with respect tothe administration of the state.

&aw may not always achieve its ideal of discovering true reality, still, #ocrates adds,no society believes that that ust can reallybe unust. Ehoever fails to reach reality,fails it 1nd the law. Those who know alwaysaccept the same views they will not writedi6erently at di6erent times on di6erentmatters. If we see some persons anywheredoing this, we can say that they have noknowledge and if they are mistaken in whatthey describe as law, then that law is mereappearance and ought not be accepted to beasserting a distinction between principlesand rules.

!lato o6ers another de1nition of law as theopportionment of reason.

Reason is apprehension of reality . #owhat did !lato mean by realityJ

!lato once tentatively de1ned reality aspower, by which he meant that anything hasreal existence if it has inherent in it thepower of being a6ected or of a6ectingothers, no matter how small.

!lato asserted that law was the discovery of true reality, appearing to mean that themoral value of law increases as itapproximates the ideal law which exists inthe world is reality.

!lato puts forward the theory that law is aninstrument of social control and thus

suggests the problem of the end of law. 5eheld that the end of law was to produce menwho were “completely good”. 5e thereforereected laws that did not incline to the end,asserting that a bad law is a no law.

Eas !lato hostile to lawJ !lato of theRepublic preferred the adaptable intelligenceof the all:wise autocrat to the impersonalityof the rule of law. 5eknew well the simpletruth, as the trial of #ocrates had shown him,that the debating method of the courtroom,

as distinguish from cross:examination, wasperhaps the least likely to lead to thediscovery of truth.

5owever, in the Laws and Statesman, !latoreali>ed that on this earth benevolentdictatorship was a counsel of perfection andthat he would better propose a solutionwhich had a possibility of reali>ation$ societyshould fall back upon law as second:best. 5easserted that 1xed laws are to be preferredto the personal administration of theunscienti1c ruler which is the type societyusually receives.

For !lato, there was not a man among uswhose natural e2uipment enabled him bothto see what was good for men as membersof the community, and on seeing it, alwaysto be both able and willing to act for thebest. )s )cton puts it, “all power corruptsand absolute power corrupts absolutely”.

&aw the generality of it could not always do ustice to particular cases.

The #tate for !lato is a man on large scale. Itis a whole form of various individuals andsolidly built, as body is formed of severaorgans, which together make its life possible;oth in the individual and in the #tate, theremust reign that harmony which is obtainedthrough virtue. Js'i#$ is 'h$ /i!'$ pa!$0#$ll$%#$, i%sofa! as i' #o%sis's i% aha!o%i# !$la'io% 2$'w$$% 'h$ /a!iospa!'s of a whol$.

Three parts or faculties exist in the soul ofthe individual$

%. Aeason which dominates'. (ourage which acts*. sense which obeys

#imilarly, in the #tate three classes are

distinguished$%. The wise to dominate'. Earriors to depend the social

organisms*. )rtisans and farmers who must feed it.

The cause of participation in and submissionof the individual to the #tate is the lack ofautarchy, the imperfection of the individualhis insuKcient by himself.


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For !lato, it is only the #tate which is aperfect being and suKcient unto itself, andwhich absorbs and dominates all. The #tate,therefore, dominates human activity in all itsmanifestations. Lpon its rest the duty topromote good in its every form. The powerof the #tate is limitless. To render strongerand closer:knit the political organi>ation,!lato suppresses social entities which areintermediate between the individual and the#tate. ;y !lato, at any rate, the personalityof man is not ade2uately recogni>ed.

These brieBy are the principal conceptsformulated by !lato in the ?ialogue,Republic. The ?ialogue &aws, composedlater, when !lato was seventy, has characterdi6erent preceding one, because it does nottrace out a pure ideal, but considers insteadhistorical reality, and there appear often anadmirable sense of practical experience.

In the ?ialogue Laws, !lato shows a greaterrespect for individual personality, always,however, that of free men only. Family andproperty are conserved, no longer sacri1cedto the sort of #tatism, as in Aepublic. Theauthority of the #tate however remainsnevertheless very great and overpowering.

!lato critici>es both monarchy anddemocracy, and proposes a sort of synthesis,a mixed government. "ust like in #parta,aside from two kings, there were the #enateand the 4phors.

CO((ENTS ON PLATO +Y CAIRNS, THEREPU+LIC

5ow much !lato owed to his predecessorsJ

From #olon$ 5appiness of the statedepended upon the faithful observance of

sound laws, and that it was the duty of thegood citi>en to see that such laws weremade.

From 5erodutos$ &aw is the master.

From !indar$ &aw is the lord of all.

ARISTOTLE3S POLITICSClassi#al Na'!al Law

In the !latonic Minos, his de1nitions of laware partial. They are always relative to theproblem before him, and the aspect of lawwhich they emphasi>e constantly shifts inorder to permit di6erent conse2uences to bedrawn.

In the Ahetoric to )lexander, it is pointed outthat in a democracy the 1nal appeal is toreason. ) self:governing community isdirected along the best path by its publiclaw, and so as king, as the embodied ofreason, guides along the path of theiradvantage those who are subect to this rule.

In a clumsy attempt to bring the two ideastogether, law then is de1ned as the commonconsent of the community, regulating actionof every kind.

)nd later, in the same treatise, law is de1nedas the common agreement of the stateenoining in writing how men are to act invarious matters.

)ristotle agreed with !lato that legislationshould teach virtue. Goodness, in men, hethought, could be secured if their lives wereregulated by a certain intelligence, and by aright system, invested with ade2uatesanctions. 5e therefore suggests that, in ageneral sense, the la itself is a kind ofcontract, so that whoever disregards orrepudiates a contract is repudiating the lawitself. )ristotle however said that law wasmuch more than a contract. 5e pointed outthat if the state did not pay attention tovirtue, the community became merely analliance.

)ristotle developed a distinction between“constitution” and “laws”$

(onstitution @ the organi>ation of oKces in astate, and determines what is to be thegoverning body, and what is the end of eachcommunity.

&aws @ are the rules according to which themagistrates should administer the state, andproceed the o6enders.

To the extent his works have survived, it isclear that )ristotle did not reach any 1nade1nition of law. 5e saw the inherent


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complexity of legal phenomena, and hefound no single description of it couldembrace its manifold aspects.

• )ristotle thought of law as a rule of

conduct for the individual

• #tressed the ideal reason, the doctrine

that legal precepts should have some

basis in intelligibility and not be themere expression of arbitrariness,force, or custom

• !resented law as a contract

• ?istinguished law from constitutionand de1ned as the rules in accordancewith which court determine cases

• !ointed out law as a form of order.

&aw itself, like everything in the )ristotleiansystem has its end and to )ristotle it wasvery clear that its task was to make men

good. )nd to )ristotle, the highest good ishappiness or well:being.

)ristotle de1ned happiness as an exercise of the powers of life in accordance with thevirtue throughout the whole life:time.5appiness takes its origin in virtue, it issuesin pleasure, and material good:fortune is itsordinary e2uipment.

)ristotleCs de1nitions satisfy the !latonicconditions for a happy life, but as a uristic

formula it has several defects$• The tasks of law can no more can be

caught within the net of a singleformula than its numerous andcontradictory aspects can be con1nedwithin the limits of one de1nition.

• The idea of the end of law is that it

breaks down as it is put into practice.

)ristotle held that the law has no power tocommand obedience except of that habit.

4ducation also assists in making obedienceto law second nature to the citi>ens.

In the doctrine of the categories, conductcomes under the heading of Muality. 0irtueis a Muality and )ristotle assumes that thecategory has four divisions$ habits, ortendencies to do a thing capacities for doinga thing feelings, passions and emotionsprompting us to do a thing and externalform or shape.

5abituation is the only method of ac2uiringthat settled tendency to do acts of a certainkind.

THEORY OF LEGISLATION

)ristotleCs normative view of the law isclearly apparent in his theory of legislation.

That law prescribes certain conduct$ thatconduct of a brave man that of a templateman that of a gentleman, and so with all theother virtues and vices, prescribing someactions and prohibiting others.

!lato held that legislation should be soframed that it could be incorporated in amanual of instruction for the young.

&agislation is a branch of political science.

(ollections of laws and constitutions may beserviceable to students capable of studyingthem critically and udging what measuresare valuable or the reverse, and what kind ofinstitutions are suited to what nationacharacteristics. ;ut those who examine suchcompilation without possessing a trainedfaculty cannot be capable of udging themcorrectly, unless, indeed, by accident, thoughthey may very likely sharpen their politicaintelligence.

)ristotle laid down a series of principles tocontrol and guide the legislative process$

• The legislators he believed were from

middle class::: ought to have his eyesdirected to two points @ the peopleand the country.

• &egislatorCs state must have a politicalife, a life of intercourse with other

states

• ) legislator must make sure that the

nationCs arms should be such asenable it to meet its foes in its onterritory.

• The legislator must pay attention to

the foreign relations of the state


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• The legislator should not make

con2uest the aim of the state.

(iceroCs principal thesis is that &aw is not aproduct of choice, but is given by nature.)ccording to him, &aw is noted based onarbitrary opinion, but there is a natural,immutable and necessary “ust” as is provedby testimony taken from the very conscienceof man.

;esides this jus naturale, there exists jusgentium observed by all people which servesas a basis for their mutual relations becauseit based upon their common needs. )ndthere is jus civile, that which is in force foreach people in particular.

There is therefore a law of nature,immutable, not arti1cially made but already

existing, inborn. It is a uniform law, notsubect to change by the action of men.

THE RO(AN JURISTSCICERO * DE LEGI+US

&aw is the highest reason implanted innature. It is the mind and reason and mindof an intelligent man, the standard by which

"ustice and Inustice are measured.

Aeason when perfected is rightly calledwisdom.

Those creatures who have received the giftof reason from Dature have also receivedright reasons, and therefore they have alsoreceived the gift of &aw, which is right reasonapplied to command and prohibition. )nd ifthey have received &aw, they have received

"ustice also.

CO((ENTS ON CICERO +Y CAIRNS

(icero maintains that nothing can be noblerthan the law of the state. &aw is the bond ofthe society, and the state may be de1ned asan association or partnership in law. If astate has no law, it cannot be considered astate at all.

ANT3S THE PHILOSOPHY OF LA&PROLEGO(ENA

LA& AND ETHICSG$%$!al I%'!o"#'io% 'o 'h$ ($'aphysi#s

of (o!als

&aws of morality is not drawn fromobservation of oneself or of our animalnature, nor from perception of the course ofthe world in regard to what happens, or howmen act. ;ut Aeason commands how weought to act, even although no example ofsuch action were to be found nor doesAeason give any regard to the )dvantagewhich may accrue to us by acting , andwhich 4xperience could alone actually show.

GENERAL DI)ISIONS OF THE(ETAPHYSICS OF (ORAL

GENERAL PRELI(INARY CONCEPTIONSDEFINED

Na'!$ a%" Posi'i/$ Laws @ 3bligatory&aws for which an external &egislation ispossible, are called generally Eternal Laws.

Those 4xternal &aws, the obligatories ofwhich can be recogni>ed by Aeason a priori without an external &egislation, are calledDatural &aws. Those &aws, again, which arenot obligatory without actual 4xternal&egislation, are called !ositive &aws.

(a0is @ The !rinciple which makes acertain action a ?uty, is a !ractical &aw. TheAule of the )gent or )ctor, which he forms asa !rinciple for himself on subective grounds,is called his 7axim.

Th$ Ca'$4o!i#al Ip$!a'i/$ @ The(ategorical Imperative only expressesgenerally what constitutes 3bligation. It maybe rendered by the following formula$ “ )ctaccording to a 7axim which can be adoptedat the same time as a Lniversal &aw”.

INTRODUCTION TO THE SCIENCE OFRIGHT

G$%$!al D$5%i'io%s a%" Di/isio%s


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A6 &HAT THE SCIENCE OF RIGHT IS7

The #cience of Aight has for its obect the!rinciples of all the &aws which it is possibleto promulgate by external legislationH

+6 &HAT IS RIGHT7

)ll this may remain entirely hidden evenfrom the practical "urist until he abandon hisempirical principles for a time, and search inthe pure Aeason for the sources of such

udgments, in order to lay a real foundationfor actual positive &egislation.

The conception of Aight$%. 4xternal and practical relation of one

!erson to another, in so far as theycan have inBuence upon each other,immediately or immediately, by their)ctions as facts.

'. The relation of his free action to thefreedom of action of the other.

*. In this reciprocal relation of voluntaryactions, conception of Aight does nottake into consideration the matter theact of Eill in so far as the end whichany one may have in view in willing it,is concerned.

Aight, therefore, comprehends the whole of the conditions under which the voluntaryactions of any one !erson can be harmoni>edin reality with the voluntary actions of everyother !erson, according to a universal &aw of Freedom.

C6 UNI)ERSAL PRINCIPLE OF RIGHT

“4very )ction is right which in itself, or in the

maxim on which it proceeds, is suchthatit can co:exist along with the Freedom of theEill of each and all in action, according to auniversal &awN.

3r it can be expressed as “)ct externally insuch manner that the free exercise of thyEill may be able to co:exist with theFreedom of all others, according to universal&aw.”

D6 RIGHT IS CONJOINED &ITH THE TITLEOR AUTHORITY TO CO(PEL

4verything that is wrong is a hindrance of thefreedom, according to universal &aws and(ompulsion or (onstraint of any kind is ahindrance or resistance made to Freedom.

CO((ENTS +Y PATON ON ANT

To de1ne law we must distinguish betweenform and matter. Form is being thecomplex

of universally valid principles presupposed inany legal udgment 7atter is the changingworld of social experience which thoseprinciples construe legally.

Aodulf #tammler regards !hilosophy of &awas the “theory of those propositions aboutlaw which have universal validity”.

)ccording to #tammler, law belongs to therealm which chooses end and determines7ean that law is the notion of purpose. Itexists to bind together the community. #inceby de1nition law exists to harmoni>e thepurposes of individuals, law itself strivestowards ustice. The fundamental basis of

law and of ust law are, therefore, thesame.

&aw exists to coordinate, it can operate onlyby unifying all possible acts of men.

These principles of ust law are based on thedoctrines of respect and ofparticipation.

!oints of #tammlerCs Theory on &aw$%. &aw can exist only if actual society

exists.'. The realm of law and the natural worldare distinct.

*. 7ost systems do assume that law iscomplete and exclusive system initself.

HEGEL3S THE PHILOSOPHY OF RIGHT


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5egel believed that philosophy possessed alogic or method of its own, one that waspeculiar to itself, and which constitutedphilosophyCs own kind of scienti1c proof.

This was the dialectic method, whichproceeds through the development of concept. It is the process by which from the1rst member of the triad, say ;eing, asecond element, Dothing, is deduced. This ispossible because ;eing in its completelyabstract form, devoid of all 2ualities is,Dothing. ;ut we are able to at this point toperceive the presence of the member of thetriad, ;ecoming. In fact we are forced totake this step according to 5egel becauseunless we do so, we are asserting theparadoxical proposition that ;eing andDothing are the same @ that a thing is both isin and is not. Ee must therefore search forwhat 5egel calls the unity of opposites. Inthe present case it is found in ;ecoming athing both is and is not when it becomes.

Aational is actual and actual is rational.

#o far as urisprudence is concerned with thetruth is nothing new. !hilosphyCs problem isto isolate those truths and to exhibit theirlogical necessity.

The laws of nature are given and theirmeasure is outside man.

!ositive law, on the contrary is posited, itoriginates with man.

Ee cannot know the truth through themethod of either intuitionalism orsubectivism. !hilosophyCs concern is withthe rational. This means that it is an e6ort toapprehend the actual.

CHAPTER )AUSTIN, THE PRO)INCE OF

JURISPRUDENCE DETER(INED

&aws proper, or properly so called arecommands laws which are not commandsare laws improper or properly so called.&aws properly so called, with laws improperby so called, may be aptly divided into thefour following kinds$

%. The divine laws, or the laws of God$ thatis to say, the laws which are set by Godto his human creatures.

'. !ositive &aws$ that is to say, laws whichare simply and strictly so called, andwhich form the appropriate matter ofgeneral and particular urisprudence.

*. !ositive morality, rules of positivemorality, or positive moral rules.

+. &aws metaphorical or 1gurative, ormerely metaphorical or 1gurative.

• The divine laws and positive laws are laws

properly so called.

• 3f positive moral rules, some are laws

properly so called, but other laws areimproper. !ositive moral rules may bestyled laws or rules set or imposed byopinion$ for they are merely opinions orsentiments held or felt by men in regard

to human conduct.• ) law metaphorical or 1gurative and a law

imperative and proper are allied byanalogy merely and the analogy bywhich they are allied is slender or remote.

(onse2uently, positive laws -the appropriatematter of urisprudence are related in theway of resemblance, or by close or remoteanalogies to the following obects$ the lawsof God positive morality which are set byopinion and to laws metaphorical or laws

merely metaphorical.

In the six lectures, )ustin distinguishedpositive laws from the enumerated otherkinds, and considered as a whole, “theprovince of urisprudence determined.” It isaccomplished through the following$%. 5e determined the essence or the nature

which is common to all laws that are lawsproperly so called. )nd,

'. ?etermined the respective characters ofthe four several kinds into which laws

may be aptly divided.

5aving suggested the principal purpose)ustin indicated the following topic$%. 5e determined the essence or nature

which is common to all laws that lawsproperly so called.

?etermining the essence or nature of a lawimperative and proper, )ustin determinedimplicitly the essence of nature of a


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command. ;y commands, )ustin implied$“sanction” or “enforcement of obedience”“duty” or “obligation” “superior andinferior.”

'. 5e determined the characters or marksby which the laws of God aredistinguished from other laws.

)ustin divided the laws, and othercommands of the ?eity, into two kinds$%. The revealed or express'. Lnrevealed or tacit

)ccording to )ustin, the divine law is themeasure or test of positive law and morality$3r law and morality, in so far as they arewhat they ought to be, conform, or are notrepugnant, to the law of God.

#ince, then, the nature of the index to thetacit command of the ?eity is an all:important obect of the science of legislation,it is a 1t and important obect of the kindredscience of urisprudence.

)ustin distributed laws or rules into twoclasses$%. &aws properly so called, with such

improper laws as are closely analogousto the proper

'. Improper laws which are remotelyanalogous to the proper and which,therefore, laws metaphorical or1gurative.

&aws proper with much improper laws as areclosely analogous to the proper are underthree classes$%. !roperly so called the laws of God'. !roperly so called the positive laws*. !roperly so called, with the laws

improperly so called, positive morality orpositive moral rules.

!ositive moral rules distinguishingcharacters$%. &aws or rules set by men to men as are

not armed with legal sanctions'. &aws or rules as are not positive laws, or

are not appropriate matter for generalor particular urisprudence.

?etermining the characters of positive laws,determines implicitly the notion of sovereignty, with the implied or correlative

notion of independent political society. 4verypositive law or every law simply and strictlyso called is set by a sovereign person, or asovereign body of persons, to a member ormembers of the independent political societywherein that person or body is sovereignsupreme.

) law, in the most general andcomprehensive acceptation in which theterm, in its literal meaning, is employed, maybe said to be a rule laid down for theguidance of an intelligent being by anintelligent being having power over him.

Eithout extension by metaphor or analogy,the term law embraces the following obects%. &aws set by God to his human creatures

and'. &aws set by men to men.

The whole or a portion of the laws set by Godto men is fre2uently styled the law of natureor natural law. ;ut reecting the appelation&aw of Dature as ambiguous and misleading)ustin named those laws or rules the DivineLaw or the law o! "od.

3f the laws or rules set by men to mensome are established by superiors, sovereignand subect$ by person exercising supremeand subordinate government, in independentnations, or independent political societies.

)s contradistinguished to natural law, or tothe law of nature , the aggregate of therules, established by political superiors, isfre2uently styled positive law.

(losely analogous to human laws of thissecond class, are a set of obects fre2uentlybut improperl# termed laws, being rules setand enforced by mere opinions or sentimentheld or felt by an indeterminate body of men

in regard to human conduct. )ustin denotedthem by the term positive morality. Thename moralit# severs them from positivelaw, while the epithet positive disoins themfrom the law o! "od.

There are numerous applications of the termlaw, which rest upon a slender analogy andare merely metaphorical or 1gurative. #uchis the case when we talk of laws observed bythe lower animals of laws regulating thegrowth or decay of vegetablesH etc. For


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where intelligence is not, or where it is toobounded to take the name of reason, there isnot the will which law can work on, or whichduty can incite or restrain.

4very law or rule -taken with the largestsigni1cation which can be given to the termproperly is a command.

) command is distinguished from othersigni1cations of desire by purpose of theparty commanding to inBict an evil or pain incase the desire be disregarded. If youcannot or will not harm me in case I complynot with your wish, the expression of yourwish is not a command, although you utteryour wish in imperative phrase.

;eing liable to evil from if I comply not withyouCre a wish which you signify, I am boundor obliged by your command, or I lie under adut# to obey it.

(ommand and duty are, therefore correlativeterms$ the meaning denoted by each beingimplied or supposed by the other.

The evil which will probably be incurred incase a command be disobeyed or in case aduty be broken is fre2uently called sanction,or an en!orcement o! obedience.

;y some celebrated writers -by &ocke,bentham, and !aley, the term sanction, orenforcement of obedience, is applied toconditional good as well as to conditionalevil$ to reward as well as to conditionalpunishment. 5owever, )ustin disagreed withthis, according to him, if a law hold out areward as an inducement to do some act, aneventual right is conferred, and not anobligation imposed, upon those who shall actaccordingly.

From what has been premised, the ideas ornotions comprehended by the termcommand are$%. ) wish or desire conceived by a rational

being, that another rational being shalldo or forbear.

'. )n evil to proceed from the former, andincurred by the latter, in case the lattercomply not with the wish.

*. )n expression or intimation of the wishby words or other signs.

It also appears then that command, dut# and sanction are inseparably connectedterms.

(ommands are of two species$ laws or rules.

7ost of the laws which are established bypolitical superiors, or most of the laws whichare simply and strictly so called, obligegenerally the members of the politicacommunity, or oblige generally persons of aclass. To frame a system of duties for everyindividual of the community, were simplyimpossible.

Superiorit# is de1ned by )ustin as signifyingmight $ the power of a6ecting others with evior pain, and of forcing them, through fear ofthat evil, to fashion their conduct to oneCswishes.

The might or superiority of God, is simpleand absolute. ;ut in all or most cases ofhuman superiority, the relation of superioand inferior, and the relation of inferior andsuperior are reciprocal. The party who is thesuperior as viewed from one aspect, is theinferior as viewed from another.

There are other obects improperly termedlaws -not being command which yet mayproperly be included within the province of

urisprudence$

%. )cts on the part of legislatures to explainpositive law @ working no change in theactual duties of the governed, but simplydeclaring what those duties are.

'. &aws to repeal laws, and to release fromexisting duties. In so far as they releasefrom duties imposed by existing lawsthey are not commands, but revocationsof commands.

*. Imperfect laws, or laws of imperfect

obligation. ) law which wants a sanction,and which, therefore, is not binding.

CO((ENTS +Y PATON ON JOHNAUSTIN3S I(PERATI)E SCHOOL

!aton discussed )ustinCs views under threeheads$ -a the basis of urisprudence, -b the


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method of urisprudence, -c the relation of laws and ethics.

THE +ASIS OF JURISPRUDENCE

)ustinCs broad approach to law was to regardit as a command of the sovereign. !ositivelaws is a general rule of conduct laid downby a political superior to a political inferior.

The notion of command re2uires that theremust be a determinate person to issue thecommand, and that there is an implied threatof a sanction if the command is not obeyed.)ustinCs aim was to separate positive lawsharply from such social rules as thosecustom and morality. The emphasis oncommand achieved this end, for the rules of eti2uette are not laid down by a de1niteperson.

;ut, if the law of each country is based oncommands of the sovereign person -or bodyof persons in that country, on what is

urisprudence to be basedJ )s eachsovereign may command what he wishes,will not there be the utmost diversitybetween the legal systemsJ Is there anyelement of identity on which general sciencecan be basedJ

)ustin did not deal clearly on this problem.5e assumed, without any real investigation,that certain principles, notions, anddistinctions were common to all systems of law. #ome notions were universal because itwas impossible coherently to construct alegal system without using them, e.g. theterms dut# , right , injur# , punishment , andredress.

)nalysis reveals )ustinCs foundation to berather unstable$

Firstly, it is clear that there are no universalrules of law.

#econdly, there are few concepts which arecommon to all legal systems, and if wecon1ne our analysis to such as we think areuniversal, we run to dangers$ %. If furtherresearch shows that there are no conceptswhich are common to all systems, then thereis no basis for general urisprudence at all'. 4ven if a few notions are proved to be

universal, they form somewhat narrow basisfor a science of law.

The solution of the problem is that, althoughthere are few rules of law that are universal,yet there may be universal principles of

urisprudence. The assumption of urisprudence is that in all communitieswhich reach a certain stage of developmentthere springs up a social machinery which wecall law. "urisprudence is not primarilyinterested in cataloguing uniformities, nor indiscovering rules which all nations acceptIts task is to study the nature of law, thenature of legal institutions, the developmentof both law and legal institutions and theirrelationship to society. "urisprudence isfounded on the attempt, not to 1nd universaprinciples of law, but to construct a sciencewhich will explain the relationship betweenlaw, its concepts, and the life of society.)ustin did not analyse this problem acutely.

THE (ETHOD OF JURISPRUDENCE

)ustin believed that the chief tool of urisprudence was anal#sis. Today, however,it is increasingly recogni>ed that, useful asanalysis may be, it will not suKce to answerall the problems of urisprudence. #ome ofthe imperative school seem to proceed onthe tacit assumption that all legal problemscan be answered by analysis of the rules thatexist and by deductions from them4xaggerated positivism ignores the fact thatlaw develops not by logic alone, but bydrawing new values from the life of thecommunity and by gradually reshaping therules so that they accord with the standardsof today. Ee cannot always convict adissenting minority in the 5ouse of &ords ofan error in logic @ what is fre2uently decisiveis the udgeCs view of the purpose that law

should achieve.

Ehat is here st8ressed is only that theanalytic system based on )ustinCs teachingdid not make suKcient allowance for thecreative element in law and tended tomagnify the static character of legal rules.

LA& AND ETHICS


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)ustin distinguished urisprudence, thescience of the law from the science of legislation which he based on the principle of utility. ;ut we can see today that even themost positive member of the analyticalschool did not succeed in separating the lawthat is from ideal elements. )nalysts treatedlaw as a coherent system based on certainfundamental principles from which particularrules may be deduced. Daturally, no systemof law is perfectly self:consistent, but anyrule that could not be 1tted into the analystCsframework was dubbed an historical accidentor logical anomaly which -it was predictedwould soon disappear. ;ut the analystsassumed that logical self consistency wasthe sole end of the law. (learly, law does notexist for the sake of consistency, for many arule that is theoritically anomalous is basedon sound views of public policy.

Thus, criticism of the analytical schoolemphasi>es two very signi1cant truths for

urisprudence$%. The law that is does not exist as aperfectly proportioned body of rules deducedfrom a few leading principles. The socialpressures of the past have led to manyconvenient anomalies being adopted. 5enceany attempt to reconcile the rules on logicalground easily develops into a study not of the law that is but of the law that should be,if logic were to prevail.'. It is extraordinarily diKcult for any schoolto resist setting up an ideal which can bemade the basis for constructive criticism of the law. The inBuence of their work wassuch, however, that their insistence thatlawyers should be concerned with law that is,combined with the dogma that udges do notmake law, led to a wasteful argument aboutwhether or nor udges do make law when ionfact udges do make law.

The analytical positivists still aKrm the)ustinian belief that$

• &aw can and ought to be made the

subect of study separately from morals

• (an be seen as a system of rules with a

logic of its own capable of moresatisfactory elucidation

• The methods of linguistic analysis

pursued by the philosophers can beemployed in urisprudence to clear upmany pu>>les which have troubled legal

theorists, and to produce clearerthinking for lawyers generally.

ELSEN3s PURE THEORY OF LA&

LA& AND NATURE

LA& AS A PART OF (ORALS

Ehat is the relationship of law and moralsJ This 2uestion has two meanings$ 3ne, whatis the relationship between the twoJ Theother, what ought it beJ

The 1rst 2uestion is sometimes answered bysaying that law by its very nature is moral,which means that the behavior commandedor prohibited by legal norms is alsocommanded or prohibited by the moranorms. Furthermore, that if a social ordercommands a behavior prohibited by moralsor prohibits a behavior commanded bymorals, this order is not law, because it is not

ust.

The 2uestion is also answered, however, bystating that the law may, but need not bemoral, although the postulate is admittedthat the law ought to be moral, which means

ust.

If the 2uestion of the relationship betweenthe law and morals is understood as a2uestion concerning the content of law andnot as a 2uestion concerning its form if it issaid that law according to its nature has amoral content or constitutes a moral valuethen one asserts by these statements thatlaw is valid within the sphere of morals, thatthe legal order is part of the moral order

that law is moral and therefore by its nature ust.

RELATI)ITY OF (ORAL )ALUE

;ut if an absolute value in general and anabsolute moral value in particular is reectedfrom the point of view of scienti1c cognitionbecause an absolute value can be assumedonly on the basis of religious faith in theabsolute and transcendent authority of a


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deity if one grants that under di6erentcircumstances di6erent behavior may beconsidered good or evil, ust or unust, andnothing has to be considered good or evil,

ust or unust, under all possiblecircumstances if in short, one acknowledgesthat moral values are only relative$ then, theassertion that social norms must have amoral content, must be ust in order to2ualify as a law, can only mean that thesenorms must contain something common toall possible moral systems, as systems of

ustice.

In view of extraordinary heterogeneity,however, no element common to thecontents of the various moral orders isdetectable.

)ll moral orders have only one thing incommon$ that they are social norms, that isnorms, norms that order a certain behaviorof men @ directly or indirectly @ toward othermen. )ll possible moral systems have incommon their form, the “ought”$ theyprescribe something, they have normativecharacter. 7orally good is that whichconforms with the social norm thatprescribes a certain human behavior morallyevil that which is opposed to such a norm.

The relative moral value is established by asocial norm that men ought to behave in acertain way.

Lnder these presuppositions the statement“law is moral by nature” does not mean thatlaw has a certain content, but that it is norm@ namely a social norm that men ought tobehave in a certain way. Then, in theserelative sense, every law is moral$ every lawconstitutes a @ relative @ moral value. )ndthis means$ The 2uestion about therelationship between law and morals is not a2uestion about the content of the law, but

one about its form.

The law constitutes a value precisely by thefact that it is a norm it constitutes the legalvalue, which is a -relative moral valuewhich merely means that the law is a norm.

SEPARATION OF LEGAL AND (ORALORDERS

If it is assumed that law is moral by nature,then, presupposing an absolute moral value,

it is meaningless to demand that the lawought to be moral. #uch a postulate ismeaningful only if the legal norms does notdepend on their conformity with the moraorder.

It is paramount and cannot be emphasi>edenough to understand that not only onemoral order exists, but many di6erent andeven conBicting ones and that above all, the

udgement of what is morally good or evilmorally usti1able or unusti1able, is subectto continuous change, as is the law, and thata legal order that at the time of its validitymay have conformed with the postulates ofthe moral order then prevalent, may still be

udged to be immoral today.

The thesis reected by !ure Theory of &aw$

• That law by its nature must be moral and

that immoral social order is not a legaorder, presupposes an absolute moraorder, that is, one valid at all times andplaces. 3therwise it would not bepossible to evaluate a positive sociaorder by a 1xed standard of right andwrong, independent of time and place.

• In its actual application by the science oflaw prevailing in a certain legacommunity, this thesis amounts to anuncritical usti1cation of the nationacoercive order that constitutes this

community. The dubious standard of anabsolute morality is applied only to thecoercive order of other nations. From thepoint of view of science of law it must bereected because it is not the task of thisscience to ustify the law by absolute orrelative morals but to know and describeit.

CO((ENTS +Y PATON ON THE PURESCIENCE OF LA&

/elsen wishes to free the law from themetaphysical mist with which it has beencovered at all times by the speculations on

ustice or by the doctrine of ius naturae. 5edesires to create a pure science of lawstripped of all irrelevant material, and toseparate urisprudence from the sociasciences as rigorously as did as the analysts.#o the urists, if he is to be scienti1c, muststudy the legal rules abstracted from alsocial conditions. /elsen refuses to de1ne


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law as a command, for that introducessubective and political considerations andhe wishes his science to be truly obective.

/elsen wishes to separate the realm of urisprudence from the natural sciences. Thelatter deals with cause and e6ect. &aw onthe other hand does not attempt to describebut rather to prescribe certain rules, to laydown standards of action which men oughtto follow.

For /elsen, we cannot adopt the easymethod of de1ning law$

• The modern tendency to regulate so

many of the a6airs of the private citi>enmeans that the sphere of law is dailyincreasing.

• "ustice is not a satisfactory concept for ascience of pure law, as Oustice is

irrational idealC @ that is, it cannot beclearly de1ned by reason. "ustice formany rules may be unust, but they donot therefore cease to be law.

The law does not state what actually doeshappen, but lays down what ought tohappen yet if the legal order is to bee6ective, it must secure a certain measure of acceptance.

The sphere of urisprudence, then, is a study

of the nature of this hierarchy of norms,validity of each norm depending on its beinglaid down in accordance with a superior normuntil we reach the 1nal norm which imposesan obligation on a particular individual.

It is diKcult to appreciate the signi1cance of /elsenCs work until the application of theoryis understood, but for the present we areconcerned only with the bearing of his theoryon the problem of the boundaries of

urisprudence. 5is claim that he has created

an impartial and universal science is usti1ed, but we are not left with the drybones of the law deprived of the Besh andblood which give them life. /elsen is notalone in his disgust at Opolitics mas2ueradingas urisprudenceC.

/elsen is correct in showing that law is aweapon that may be used to e6ect manyend.

/elsenCs work is also valuable in its emphasisthat in executing the norms of law the udgehas much discretion @ it is impossible for anygeneral rule to provide for all contingencies,and the general rules must be made preciseby those who have the duty of applyingthem. ;ut, in order to maintain the air ofimpartiality, /elsen regards as outside thescope of urisprudence all discussion ofnatural law, and all the examination of thesources whence the udge draws his ruleswhen there is no authority in point. Thisleaves the science of law very OpureC, butdeprives it of all interesting contact with lifeitself. To exclude the whole of sociology andof ethics leaves urisprudence but a mentaexercise in abstract notions.

/elsenCs methods does not even even giveus a true picture of law, for urisprudencemust go beyond the formal hierarchy ofnorms to study the social forces that createlaw. The doctrine of natural law has certainlybeen abused, but is urisprudence thereforeto ignore the whole 2uestion of ethicsJ

The pure science of law is narrow one, and itmust be complemented by other and broaderapproaches.

CHAPTER )ITHE FUNCTIONAL SCHOOL

THE SCOPE AND PURPOSE OFSOCIOLOGICAL JURISPRUDENCE

+y Ros#o$ Po%"

SCHOOLS OF JURISTS AND (ETHODS OF JURISPRUDENCE

It has been possible to divide the urists intothree principal groups$

%. !hilosophical #chool%.%. %=th (entury &aw:of:Dature #chool%.'. 7etaphysical #chool @ during the

1rst half of %9th century and,


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%.*. #ocial:!hilosophical #chool @ theDeo:5egelians seems to have themost fruitful program

'. 5istorical #chool'.%. German 5istorical #chool and'.'. 4nglish 5istorical #chool

*. )nalytical #chool

Instead of a further variation of one of theold creeds, a wholly new creed is framing,may be styled the$ #ociological #chool.

16 ANALYTICAL JURISPRUDENCE

The analytical urists pursues a comparativestudy of the purposes, methods and ideascommon to developed systems of law byanalysis of such systems and of theirdoctrines and institutions in their maturedforms.

• “!utting di6erences” and “taking of

diversities”

5ence, it is appropriate to a developedsystem only.

In its crudest form, this is expressed in)ustinCs dogma that a law is a command.

The kernel of it is that law “is a product of

conscious and increasingly determinatehuman will.”

The )nalytical #chool characteristics may besaid to be$

%. They consider developed system only'. They regard the law as made consciouslyby lawgivers, legislative or udicial*. They see chieBy the force and constraintbehind legal orders+. For them the typical law is a statute

. Their philosophical views are usuallyutilitarian or teleological.

86 HISTORICAL JURISPRUDENCE

In opposition to the analytical urist, thehistorical urist and philosophical urist agreethat law is found, not made.

They deny that law is a product of aconscious or determinate human will. They

hold that the living organs of law aredoctrinal writing and udicial decisionwhereby the life of a people, expressed inthe 1rst instance in its traditional rules oflaw, makes itself felt in a graduadevelopment by molding those rules to theconditions of the present.

5ence, the historical urists may becharacteri>ed thus$

%. They consider the past rather than thepresent of the law'. They regard the law as something that isnot and in the long run cannot be madeconsciously*. They see chieBy the social pressure

behind legal rules+. Their type of law is custom. )s a rule, their philosophical view have

been 5egelian.

96 PHILOSOPHICAL JURISPRUDENCE

The philosophical urist studies thephilosophical and ethical bases of law, legalsystems, and particular doctrines andinstitutions, and critici>es them with respectto such bases.

In comparison with the analytical andhistorical urists, the philosophical urists:::

%. )re more apt to consider the ideal futureof law than its past or present'. ;elieve that when law is found, itsprinciples may, and as a matter ofexpediency, should be stated de1nitely andin certain form*. &ook at the ethical and moral bases ofrules rather than at its sanction+. 5ave no necessary preference for any

particular form of law

. 5old very diverse philosophical views.

:6 RISE OF A SOCIOLOGICAL SCHOOL *THE SOCIAL PHILOSOPHICAL SCHOOL

The 1rst movement in the new direction wasfrom the then dominant historical school inGermany.

16 THE POSITI)ES * THE (ECHANICALSTAGE


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&ike the historical urist, the 1rst type ofsociologist looked at law in its evolution, inits successive changes, and sought to relatethese changes to the changes undergone bythe society itself.

) later form of what is essentially the sametype of uristic sociology is to be seen inattempt to state all ural experience solely interms of economics. The doctrine has beenset forth in its most extreme form in)merica$

“&aw is the resultant of forces which arisesfrom the struggle for existence among men.”

“The dominant class will shape the law tofavor themselvesH”

The earlier type of sociological uristC servicewas in twofold$

%. ?isplacing the individualist starting:pointby insisting upon the importance of thegroup, of the class, of the “compactplurality”'. (ompelling us to relate the law morecritically to other social phenomena.

86 THE +IOLOGICAL STAGE

?arwin had made evolution the central ideain scienti1c thought.

The urists were attractted by the conceptionof natural selection$ the end of law is to givefree play in an orderly and regulated mannerto the elimination of the un1t, to furtherselection by a well:ordered social struggle forexistence.

96 THE PSYCHOLOGICAL STAGE

Three inBuences combined to turn theattention of sociological urists towardspsychology$

%. #tudy of group personality and group will,leading to a psychological movement in legaland political philosophy'. The complete change in method in thesocial sciences which resulted from EardCs

thesis that “psychic forces are as real asphysical forcesH” and,*. TardeCs demonstration of the extent towhich imitation is a factor in development oflegal institutions.

:6 THE STAGE OF UNIFICATION

)t the very end of the last centurysociologists were coming to see that no oneof the methods worked out was the whole ofsociology. ) few years later, Eardenumerated twelve “leading sociologicalconceptions or unitary principles” each ofwhich had been “put forward with largeclaims to being in and of itself the science ofsociology.”

THE PRESENT STATUS OF SOCIOLOGICAL JURISPRUDENCE

#ociological urists today insists upon sixpoints$

%. #tudy of the actual social e6ects of legalinstitutions and legal doctrines

'. #ociological study in connection with legalstudy in preparation for legislationH. ;ut itis not enough to compare the lawsthemselves. It is much more important tostudy their social operation and the e6ectswhich they produce, if any, when put inaction

*. #tudy of the means of making legalrules e6ective

+. ) means toward the end last consideredis a sociological legal history

. The importance of reasonable and ust

solutions of individual causes, too oftensacri1ced in the immediate past to theattempt to bring about an impossibledegree of certainty

8. 7ake e6ort more e6ective in achievingthe purpose of law.

(omparing sociological urists with insists ofthe other schools we may say$


18/21

%. They look more to the working of the lawthan to its abstract content'. They regard law as a social institutionwhich may be improved by intelligent humane6ort*. They lay stress upon the social purposeswhich law subserves rather than uponsanction+. They urge that legal precepts are to beregarded as guides to result which aresocially ust and less as inBexible molds and. Their philosophical views are very

diverse.

CO((ENTS +Y PATON ON THEFUNCTIONAL SCHOOL

• The fundamental tenet of this school is

that when we cannot understand what a

thing is unless we study what it does.

• Ehat attitude should urisprudence take

to the 2uestion of the values that directthe development of lawJ /elsen wouldretain the scienti1c method. ;ut !oundconsiders that they must be analy>edthoroughly in order to understand legaldevelopment. For !ound, law is also aprocess of balancing conBicting interestsand securing the satisfaction of themaximum of wants with the minimum of

friction.

CHAPTER )IITHE REALIST SCHOOL

THE PATH OF THE LA&+y Oli/$! &$%"$l Hol$s

Ehen we study law we are not studying a

mystery but a well:known profession. Ee arestudying what we shall want in order toappear before udges, or to advise people insuch a way as to keep them out of court.

The means of the study are body of reports,of treatise, and of statutes.

) legal duty so called is nothing but aprediction that if a man does or omits certainthings he will be made to su6er in this orthat way by udgment of the court.

If you want to know the law and nothing else,you must look at it as a bad man, who caresonly for the material conse2uence whichsuch knowledge enables him to predict, notas a good one, who 1nds his reasons forconduct.

Dowhere is the confusion between legal andmoral ideas more manifest that in the law ofcontract. The duty to keep contract atcommon law means a prediction that youmust pay damages if you do not keep it. Ifyou omit a tort, you are liable to pay acompensatory sum.

CO((ENTS ON THE REALIST SCHOOL +YPATON

The realists de1ned law not as a set oflogical propositions but in terms of oKcialaction.

Lntil a court has passed on certain facts,some realists argued, there is no law in thesubect yet in existence, for the opinion oflawyers is only a guess as to what the courtswill decide. #ince law is de1ne in terms ofoKcial action -and not of the rules whichshould guide action, it follows that any forcethat will inBuence the udge in reaching thedecision is a 1t subect for urisprudence.

&aw can have a little weight in legalevolution. #ociety is always changing, moral

udgments are developing, and the lawtherefore is in a state of Bux.

Aealists insisted that to know what a thing isone must see what it does that rules of lawmust be assessed by reference to theirconse2uences.

!erhaps the most immediate and mostimportant inBuence of )merican legalrealism was upon legal education. Theconcentration about the problems to besolved rather than upon the formal andauthoritative explanations of how they hadbeen, or ought to be, solved, changed thewhole nature of legal education.

Those changes brought decline among lawstudents in their understanding andappreciation of the internal discipline and


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coherence of systems of law viewed as rulesand principles.

CO((ENTS +Y JERO(E FRAN, &HATCOURTS DO IN FACT

5ow then a udge arrive at his decisionJ 5edoes so by a “hunch” as to what is fair and

ust or wise or expedient.

)ccording to Frank$

%. #peci1c enforceable decisions in concretecases are of the essence of

the lawyerCs work

'. #peci1c decisions are the result of the udgesC hunches

*. To predict or bring about decisions, oneshould know about what

produces udicial hunches

+. The so:called legal rules and principlesare some of many hunch producers

. Ehatever may be the stimuli to themaking of those hunches, may looselydescribe the udgeCs personality

8. Deither the background stimuli nor thecongeries labelled “udgeCs personality”are stated or statable in terms of theconventional legal rules and principles

e the compositenature of this hunch and the arti1cialbreaking up of the decisional process into“rules” and “facts” accounts in part forthe delusion of the formalist as theexclusive value of the “rules.”

=. The formalist errs also in overlooking that

circumstance that it is impossible topredict what cases will be “contested”and the subective nature of the “facts” of a “contested” case and the resultingunchangeability of the udgeCs statementof those “facts.”

9. The formalist conveniently neglects the ury.

CHAPTER )IIITHE CO((UNIST THEORY

ARL (AR;

7arxCs ideas, particularly the prospect ofinevitable liberation of the working classesfrom bondage and oppression throughrevolutionary action made a strongimpression on Aussian radicals.

LENIN ON (AR;

7arxCs teaching is complete and harmoniousproviding men with a consistent view of theuniverse, which we cannot be reconciled withany superstition, any defence of bourgeoisoppression.

The three components of 7arxism are$

%. The philosophy of 7arxism is materialism!rovided the humanity,1 and especially the working class, with a

powerful instrument of knowledge.

'. 7arx devoted all the greater attention tothe study of economic order,

having recogni>ed that it is thefoundation upon which the politicasuperstructure is erected, i.e. capitalistsociety. The doctrine of surplus value isthe cornerstone of the economic theory of7arx.

*. )fter the overthrow of serfdom, freedomsigni1ed a new system of oppressionand exploitation of toilers. 7arxanswered this with the doctrine of theclass struggle, to enlighten and organi>efor the struggle, from the power capable

of sweeping away the old andestablishing the new.

CHAPTER I;

THE POLICY SCIENCE SCHOOL LEGALEDUCATION AND PU+LIC POLICY<

PROFESSIONAL TRAINING IN THE PU+LICINTEREST

+y Ha!ol" D6 Lassw$ll a%"(y!$s S6 (#"o4al


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The reform of legal education must becomemore ever more urgent in a revolutionaryworld of cumulative crises and increasingviolence.

)de2uate training must therefore includeexperiences that aide the developing lawyerto ac2uire certain skills of thought$

%. Goal thinking @ to promote the maorvalue of democratic society and

to reduce the number of moral maverickswho do not share democraticpreferences

'. Trend:thinking @ this considers the shapeof things to come orient

himself correctly in contemporary trendsand future probabilities.

*. #cienti1c:thinking @ to build up scienti1cknowledge.

CO((ENTS +Y CRISOLITO PASCUAL ONTHE POLICY SCIENCE OF SCHOOL OF

JURISPRUDENCE AND ITS THEORY OFTHE NATURE OF LA&

The goal of the law is the creation of a worldcommunity conceived in mutual respect,understanding and rectitude, where thedi6erent representative social values ordesirable obects of human desires arewidely and e2uitably shared. The lawbecomes meaningful only when consideredas the vehicle or machinery to reali>e theend in view.

CHAPTER ;NATURAL LA&ST6 THO(AS A=UINAS, THE SU((A

THEOLOGICA

&aw is a rule and measure of acts, wherebyman is induced to act or is restrained fromacting.

The rule and measure of human acts is thereason. Aeason has its power of movingfrom the will.

4very act of reason and will in us is based onthat which is according to nature for everyact of reasoning is based on principles thatare known naturally.

"ustice has its source in nature thencecertain things came into custom by reason oftheir utility afterwards these things whichemanated from nature and were approved bycustom, were sanctioned by fear andreverence for the law.

In temporal law there is nothing ust andlawful, but what man has drawn from theeternal law.

First precept of law$ “Good is to be done andensued, and evil is to be avoided.”

)ny point deBecting from the law of nature, itis no longer a law but a perversion of law.

CO((ENTS +Y JAC=UES (ARITAIN ONST6 THO(AS A=UINAS

#t. Thomas succeeded in constructing aphilosophical and theological wisdom soelevated in immateriality that it is really freeof every particulari>ation of race orenvironment. 5is metaphysical principleswere based upon obective reality.

FOR A RE)I)AL OF NATURAL LA&DOCTRINE IN PHILIPPINE

JURISPRUDENCE+y J>!4$ R6 Co?ia

There has been a sudden increase of lawschools, but a meager few have everattempted seriously what legal philosophythey should stress to students. 3ne of thecauses is the confusion that there have beenmany di6erent approaches to what propeend of law is.

There is no denying of the fact that in eachattempt to enunciate a new philosophy oflaw, human experience has led to insolublediKculties and to inescapable inade2uacies


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The ideological conBicts in our times haveforced the return to the natural law way of thinking thus giving truth to what Gilsononce said that “the natural law buries its ownundertakers.”

234383119--legal-philosophy-notes 101

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