A. LEGAL THEORIES (Atty. DARYL BRETCH M.

LARGO)
NOTES
THEORY OF LAW AND LEGAL THEORIES
Theory of Law- talks about law and justification of law
Legal Theories- talks about legal reasoning and thinking -meaning rather concept
*Ours is a government of laws and not of men. -classic idea of Republicanism
*"Preamble ".....and to secure to ourselves the blessing of democracy under the rule of
law and regime of truth, justice, and freedom.
*Common Law vs. Civil Law
*International Law as part of the Law of the land.
*Family Law, Criminal Law, Commercial Law
*Foreign Laws vs. Domestic Law
*Law of the case
*"unless otherwise provided for by Law"
*"unless otherwise provided for by Law"
*Ignorance of the Law excuses no one from compliance therewith.
THEORY OF LAW

WHAT IS LAW?
ROMAN SANCHEZ:
-Law in general "the science of moral rules, founded on the rational nature of man,
which govern his free activity, for the realization of the individual and social ends of a
nature both demandable and reciprocal.
-Law in its specific sense "a rule of conduct, just, obligatory, promulgated, by the
competent authority for the common good of a people or nation, which constitutes an
obligatory rule of conduct for all its members.

ST. THOMAS AQUINAS

"Law is an ordinance of reason ordered towards the common goods,
promulgated by him who has charge of the community."

HANS KELSEN ( GENERAL THEORY OF LAW AND STATE, 1948)

-Law is an order of humans behaviour. An "order" is a system of rules. Law is not, as it
is sometimes said, a rule. It is a set of rules having the king of unity we understand by a
system.
-Law, along morals and religion, is a "social phenomenon" that has its own criteria.

N.M. KORKUNUV (GENERAL THEORY OF LAW 1909)

-Law are either "technical or ethical" norms.
-Technical norms deal with objects of human activity why men act always comfortably to
their ends, while ethical norms deal with guiding principles in choosing an end.
-However, juridical norms are not representatives of moral norms of natural law.

OLIVER WENDELL HOLMES JR. ("THE PATH OF THE LAW",10 HARVARD LAW
REVIEW 457, 1897)
-Law is "a body of dogma or systematized prediction".
-"The prophecies of what the courts will do in fact, and nothing more pretentious, are
what I mean, by the law".
-The Bad Man Theory(The Law is what the man thinks)
-The right of man in moral sense may not be the same are equal in Law.

BAD MAN THEORY

If you want to know the Law and nothing else, you must look at it as a bad man,
who cares only for the material consequences which such knowledge enables him to
predict, not as a good one, who finds his reason for conduct, whether inside the law or
outside of it, in the vaguer concept of conscience.

RONALD DWORKIN
Major Legal Theories
A.Natural Law Theory
B.Legal Positivism
C.Legal Realism > Legal Scepticism
D. Legal Formalism
E. Critical Legal Studies (CLS)

A.NATURAL LAW THEORY

1.Traditional Natural Law Theory. Suggests that the validity of laws that are made by
men (Positive Laws)are tested on the basis of some "higher law", such as season
morality, or divine law. (Cicero, Plato, Aquinas, etc.)
2.Modern Natural Law Theory. Assails the validity of legal positivists propositions.
Because this theory is more of refutations to legal positivist, rather than its relation to
the thinking of Aquinas, etc. this is sometimes called modern natural law theory.

TRADITIONAL NATURAL LAW THEORY

1.1*CICERO (REPUBLIC)
True Law is right in agreement with nature, it is of universal application,
unchanging, and everlasting, ....it is a sin to try to later this Law nor is it allowable to
attempt to repeal any part of it, and it is impossible to abolish it entirely.
-Cicero, therefore, believes that some norms are inherent and universal.

1.2*ST. THOMAS AQUINAS.

-Positive laws that are just "Have the Power of Binding in conscience".
-A just law is one that is consistent with natural law, that is, it is "ordered to the common
Good"
-Every human law has just so much of the nature of law, as it is derived from the nature
of law. But if in any point it deflects from the law of nature, it is no longer a law but a
perversion of Law.

MODERN NATURAL LAW THEORY

2.1*LON FULLER (THE MORALITY OF LAW 1964)
-Law is "the Enterprise of Subjecting Human conduct to the Governance of Rules.
-To be called "Law", it must comply with certain criteria ("Internal Morality"): Laws must
be general, promulgated (announced), should not be retroactive, understandable, not
contradictory, should require reasonable conduct, constant through time, administered
as announced.

2.2*RONALD DWORKIN (LAW'S EMPIRE (1986) TAKING RIGHTS SERIOUSLY

(1978)(POLITICAL AND MORAL RIGHTS THEORY)
-Laws include not just the norms found in treaties, customs, constitution, statutes, and
cases, but also moral principles that provide the best justification for the norms found
there.
-He observes that the things justified by moral principles are socially constructed but the
justification (arguments) themselves are not.
-He offers "interpretative approach" to law such that for him "legal claims are
interpretative judgements and therefore combine backward-and-forward-looking
element".

B.LEGAL POSITIVISM

*Presupposes two principles:

1. Law is a "social fact or convertion
2. There is no necessary connection between law and morality (separation of law and
morality)

*T. HOBBES J. BENTHAM AND J. AUSTIN

-Law are constructed from commands, threats, and obedience.
-Laws are handed done by a "sovereign" backed by threats of force.
-The "sovereign" is a person or group who enjoys the habitual obedience of most others
but does not habitually obey anyone else (LESLIE GREEN).

*H.L.A. HART (THE CONCEPT OF LAW 1961, 1994, 2012)

Hart believes that anything in the law is there because some person or group put
it there, intentionally or accidentally, it all has history and it can be changed is either
known or knowable, some of our Laws have good justification and some do not and
justification do not anyway suffice to make law. To do that we need human, intervention,
orders need to be given, rules to be applied, decisions to be taken, customs to emerge,
or justifications to be endorsed or asserted, Laws to be endorsed or asserted. Laws to
Hart are "posited" (fixed) (Leslie Green as H.L.A. Harts' the concept of Law)

*HANS KELSEN (PURE THEORY OF LAW 1967)

-Kelsen is a positivist theorist, but claim that while laws were "posited" there were
"presuppositions" to laws that made them valid (by "validity" Kelsen refers to
"acceptability" of laws by the governed).

POSITIVISTS: LAW AND MORALITY ARE SEPARATE

*H.L.A. HART(THE CONCEPT OF LAW)
"There is no necessary connection between law and morals."
"It is no sense a necessary truth that laws reproduce on satisfy certain demands
of morality."

*LESLIE GREEN on H.L.A. Harts The Concept of Law

"The fact that a policy would be just , wise, efficient, or prudent is never sufficient
reason for thinking that it is actually the law, and the fact that it is unjust, unwise,
inefficient or imprudent is never sufficient reason for doubting it.

*EMMANUEL KANT (METAPHYSICAL FIRST PRINCIPLES OF THE DOCTRINE

RIGHTS)
"However well disposed and law-abiding men might be... Individual men, people,
and state can never be secure against violence from one another, since each has its
own right to do what seem right and good to it,.... is determined by law.
-leave our own conception of right and wrong, leave it to a system called law.

C. LEGAL REALISM (SCEPTICISM)

*American Theory of Law (led by O.W. Holmes, Jr.
*Legal Realists take a "realistic" look at how judges decide cases, at "what the
courts...do in fact" (O.W. Holmes, Jr.)
*Lawyers recognize that judges are influenced by more than legal rules; they decide
cases according to "how the facts of the cases strike them"; that judges openly consider
the policy implications of legal rules and decisions.(Brian Leiter)
*Law is in some point "rationally indeterminate";
*Distinctly American; "The Constitution is what the Supreme Court say it is."-President
Eisenhower
*Legal Realists often criticize "Formalism" (of Christopher Langdell) in law.

*American Legal Realists argue that, unlike classical legal theorists, legal reasoning is
not independent from moral and political considerations.
Holmes believes that lawyers and judges are not logicians and mathematicians. "The
life of the law has not been logic: it has been experience." Necessities of the time, the
prevalent moral and political theories, intuitions of public policy, and even the prejudices
which judges share with their fellow men, better determine the rules by which should be
governed.
*Legal Realists are often criticized for favoring "Judicial Activism", where judges base
their decisions on their personal and political considerations rather than the law.

D. LEGAL FORMALISM

*A positivist theory of law, it focuses on the role of judges, that they must be constrained
in interpreting and applying the law, It is a theory of legal justification.
*For a formalist, a law is already the product of normative and policy consideration in
the formation of the law. Hence, a judge should not say what the law should be but
should confine itself to what the law is.

*JUSTICE ANTONIN SCALIA: (A MATTER OF INTERPRETATION, 1997)

"OF all the criticisms leveled against textualism, the most mindless is that it is
formalist. The answer to that is, of course it's formalistic! The rule of law is about
form. . . A murdered has been caught with blood on his hands, bending over the body of
his victim; a neighbour with a video camera has filmed the crime and the murderer has
confessed in writing and on videotape. We nonetheless insist that before the state can
punish this miscreant, it must conduct a full dress criminal trial that results in a verdict of
guilty, is that not formalism? Long live formalism? It is what makes us a government of
laws and not of men."

E.CRITICAL LEGAL STUDIES (CLS)

*CLS advocates believe in the "inadequacy of law" or "emptiness of the law"; that
statutes and case law cannot definitely determine the outcome of the case ("legal
indeterminacy";
*Seeing "right" as correlative (every entitlement of right is limited by the competing
rights of others), CLS argued that the liberal ideals of freedom cannot actually be
realized in a legal regime and that efforts to realize the, will only result in doctrines that
will always remain debatable.
*The grant of "property right" (in instrumentalism), simply confers power over others=
coercion of consent.
*CLS also believes that "law is politics". (Marxist Theory)

*Binder on CLS:
"The indeterminacy of interests, as developed by critical legal studies,
undermines the instrumental conception of society that has informed much policy
analysis across the political spectrum. Although the indeterminacy critique of liberal
rights theory generated more attention and controversy, the indeterminacy critique to
instrumentalism was critical legal studies' more original and significant philosophical
claim."

WHAT JUSTIFIES LAW?

Some Theories about legitimacy of political authority
-Consent theories
-Reasonable consensus theories
-Associative obligation theories
-Instrumentalist theories
-Divine Right of Kings theories
-Democratic theories
Why the theories on political authority?
-Because anarchists ask
-Anarchists believe that each person has a duty to act on the basis of his own moral
assessment of right and wrong and has the duty to reflect on what is right and wrong in
each particular instance of action. ----duty to act "autonomously" is incompatible with
duty of obeying political authority. (Wolff)

-Anarchist also believe that "each person has a right not to be bound by the state's
commands." (Simmons; Green)
-The philosophical anarchist then argues that only if a person consents to being bound
to the political authority can the person actually be bound. And because it is impossible
to obtain every consent, no state is legitimate and perhaps no state can ever be
legitimate. (does not have the right to rule)
-But, iit does not suggest that one must never obey the state.

THE CONSENT THEORY

-a political authority is legitimate only if it has the consent of those who are subject to its
commands. (necessarily the sufficient condition)
"Social Contract Theorists"
-Hobbes - - - absolute authority

-Locke - - - limited authority

-Rousseau - - - authority is the general will, popular sovereignty is inalienable, cannot
be transferred.

INSTRUMENTALIST THEORY
-"authoritative directives should be based on reasons which already independently
apply to the subjects of the directives and are relevant to their action in the
circumstances covered by the directive" (Raz, 1986)
-According to Raz, what should guide government decisions about what commands to
give subjects is what the subjects already have reason to do.
-A law that takes the place of reason becomes legitimate and binding.

REASONABLE CONSENSUS THEORY

-the basic principles that regulate the coercive institutions should be ones that the
reasonable members can agree to. (Rawls, 1996)
-The liberal state must commit itself to the "ideal of public reason."
-John Rawls argues that the liberal principle of political legitimacy requires that coercive
institutions be so structured that hey accord with the reasonable views of the members
of the society. As long as they do so they have the right to impose duties on their
members.
-[see Rawl's "Political Liberalism"]
-Citizens do not have to agree on everything but only on those principles that apply to
the basic structure of society.

-"political power is legitimate only when it is exercised in accordance with a constitution

(written or unwritten) the essentials of which all citizens, as reasonable and rational,
can endorse in the light of their common human reason" (Rawls 2001: 41).

ASSOCIATIVE OBLIGATIONS THEORY

-a political society can have legitimate authority even if it is not a voluntary association
and even if there is disagreement on many political principles. (Dworkin)
-Models: family, friendship
-Dworkin argues that legitimate political authority arises as a consequence of the
acquisition on the part of members of a political society of obligations to obey the rules
of a genuine associative community.
-Ronald Dworkin, in his Law's Empire [1986], argued that the obligation to obey the law
is, an "associative" obligation.

Associative obligations, for Dworkin, refer to "special responsibilities social

practice attaches to membership in some biological or social group, like the
responsibilities of family or friends or neighbors."

DEMOCRATIC THEORIES
-when there are disagreements among persons about how to structure their shared
world together and it is important to structure that world together, the way to choose the
shares aspects of society is by means of a decision making process that is fair to the
interests and opinions of each of the members.
-when an outcome is democratically chosen and some people disagree with the
outcome, as some inevitably will, they still have a duty to go along with the decision
because otherwise they would be treating the others unfairly
-"majority rules"

HABERMA'S THEORY
-THE ONLY LAW THAT COUNTS AS LEGITIMATE IS ONE THAT COULD BE
RATIONALLY ACCEPTED BY ALL CITIZENS IN A DISCURSIVE PROCESS OF
OPINION-AND WILL-FORMATION. ("procedural conditions for rational will
formation")
-In analyzing legitimacy of the law, Habermas first talked about a "system of rights" that
mediates two related tensions: between private and public autonomy, and between
basic rights and popular sovereignty. But theses rights must be justified and made
legitimate through a "legislative procedure" that is based on the "principle of popular
sovereignty."