The Use and Misuse of Law!

After four years of intensive study of law, I hope you have come to the certain
conclusion that you have yet to know what law is all about. As well observed by
a legal commentator, one of the oldest questions in the philosophy of law concer
ns the very subject of the study: what is law?lll Differentiating between scienc
e and philosophy, the venerable Bertrand Russel said "science is what we know,
philosophy is what we don't know."
For centuries, various schools of legal philosophy have contended for dominance
in the market of ideas. With your leave, let me give you a quick rundown of thes
e major schools of legal philosophy. First, we have the school that teaches natu
ral law. It was Aristotle who planted the idea that "there is in nature a commo
n principle of the just and the unjust that all people, in some way divine, (dis
cern) even if they have no association or commerce with each other."ill They ave
r that man can know, through the use of his reason, what is in accord with his n
ature and what is in accord with this nature is what is good. It was, however,
St. Tomas Aquinas who, in his monumental work, Summa Theologica, placed natural
law within the context of divine law and as part of God's design. He pointed ou
t that through reason and with the aid of revelation, we can decipher natural la
w.rn Then we have the school of philosophy known as legal positivism, proffered
by such towering intellectuals as John Austin, Hans Kelsen, H.L.A. Hart and Jos
eph Raz. All positivists share two principal postulates: first, that what counts
as law in any particular society is fundamentally a matter of social fact or c
onvention (the "social thesis"); second, that there is no necessary connection b
etween law and morality (the "separability thesis"). This separability thesis se
ts them apart from the proponents of natural law.I11 Then we have the school of
philosophy known aslegal realism which was led by American law professors and l
awyers including Karl Llewelyn, Jerome Frank, Felix Cohen and others. According
to their philosophy of law and adjudication, judges decide cases according to ho
w the facts of the cases strike them and not because law requires particular res
ults: judges are largely "fact responsive" rather than "rule responsive."
Ifil
Then we have the contending school of thought championing sociological jurisp
rudence whose most eminent priest is Roscoe Pound. For Pound, law is an ordering
of conduct so as to make the goods of existence and the means of satisfying cla
ims go around as far as possible with the least friction and waste. He crafted t
he term "social engineering" which espoused the proposition that law is shaped b
y social ends.Ifil And lastly, we have the Critical Legal Studies movement, whic
h gained momentum in the 1970s. Its followers are united by their commitment to
a more egalitarian society. They use insights from social and critical philosoph
y . They "assert the inescapability of commitment and reject the x x x search fo
r value neutrality"
I dare not advise you which legal philosophy to adopt. All these legal philosoph
ies have distinct merits of their own. Your social, cultural and religious backg
round and bias will largely determine which philosophy will attract you . But wh
atever philosophy will light your path, I assure you, you will fare better in li
fe with one rather than be without any. True cases will illustrate how the histo
ry of man has been changed by the advocates of these different legal philosophie
s .
Allow me to begin with the adherents of natural law. Perhaps this is the oldest
of the legal philosophies. It can be traced back to Socrates, Plato and Aristot
le, propounded by the Stoics, developed by medieval churchmen like Aquinas, elab
orated in secular terms by Protestant jurists like Grotius and Pufendorf and res
haped to justify "natural rights" by Locke, Montesquieu, Jefferson and Adams.
With these intellectual giants championing natural law, it is no source of wond
er that this school of legal philosophy has guided and still guides man's search

for justice. To be sure, Hitler and the Nazi criminals would have made a mocker
y of justice for Hitler controlled the parliament and their acts were in accord
with law. They were in accord with law but in discord with natural law. It wa
s natural law that condemned them. I quote the following observations:
During the Nazi period in Germany, "all attempts at passive and active resistanc
e to the regime were necessarily grounded on natural law, ideas or divine law x
After the war, the Courts of the Federal Republic of Germany recognize
d "the necessity of universal higher standards of objectively valid suprapositiv
e principles for the lawmaker and relied on natural law in punishing actions tha
t were legal under the Nazi regime x x x. fu rejecting the defense of accused ph
ysicians that their killing of prisoners in medical experiments had been author
ized by the laws of Third Reich, a court ruled that 'law must be defined as an o
rdinance or precept devised in the service of justice. Whenever the conflict b
etween an enacted law and true justice reaches unendurable proportions
, the enacted law must yield to justice and be considered a lawless law.
Or consider how today's greatest and most advanced country - the United States was thrown into civil war because of the wrong understanding of its fundamental
law no less than its highest court. I am referring to the Dred Scott case decis
ion, which has been denounced as "the most thoroughly perverse and reprehensible
in judicial history"I2I Let me fast forward the facts of the Dred Scott case. S
cott was the black slave of Dr. John Emerson, a surgeon in the US army, who in 1
834 took him from the slave state of Missouri to the free state of Illinois. fu
1838, they returned to the slave state of Missouri and his master, Dr. Emerson
died. Dr. Emerson left all his property to his wife, in trust for his child. His
property included his slave, Dred Scott. The trust arrangement involving Scott
became a problem as Mrs. Emerson planned to transfer to Massachusetts, a free st
ate. So she gave Scott to a certain Mr. Taylor Blow, who did not know what to do
with his new property. Fortunately or unfortunately, Mr. Blow sought the advice
of the law firm of Field and Hall. As expected, the lawyers said, let us go to
court, and they filed a suit on behalf of Scott, who hardly knew the implication
s of the case to the nation. They argued that Scott had become free since he has
been brought to states where slavery had been abolished. fu the meanwhile, Mrs
. Emerson, who has a trained eye for doctors, married another doctor, Dr. Calvin
Chaffee of Massachusetts, a representative in Congress. Congressman Chaffee, wh
o was an outspoken opponent of slavery, suddenly found himself a slave owner. To
avoid politically embarrassing her new husband, Mrs. Emerson transferred the ow
nership of their slave Dred Scott to her brother by the name of John Sanford. Th
us, the case is entitled Scott v. Sanford.
As fate would have it, it fell on CJ Roger Brooke Taney to decide the transcende
ntal case. By all standards, Taney was not a mediocre justice. In 1836 he succee
ded the legendary John Marshall of the Marbury v. Madison fame as Chief Justice
of the US Supreme Court. He was one of the best lawyers of his time, served succ
essfully as Attorney General of Maryland and of the United States, and was a clo
se confidant of President Andrew Jackson. He wrote some 250 opinions and after
20 years in the High Court, he had gained a reputation, which could rival that o
f CJ Marshal. His decision in the Dred Scott case, however, caused his free fall
from grace. In a decision that caused weeping and gnashing of teeth, the majori
ty of the US Supreme Court led by CJ Taney, ruled that Scott, as a slave, belong
ed to an inferior
class of beings and could claim no right. I quote the rel
evant ruling: They had for more than a century before been regarded as beings of
an inferior order, and altogether unfit to associate with the white race, eithe
r in social or political relations; and so far inferior, that they had no rights
which the white man was bound to respect; and that the negro might justly and
lawfully be reduced to slavery for his benefit.
In short, the Court considered a living person endowed with natural rights as a
lifeless property bereft of any right. Historian David Blight interpreted the Sc

ott decision to mean that "to be black in America in the late 1850s was to live
in a land that said you didn't have a future." Rev. Henry Ward Beecher, whose s
ister Harriet wrote Uncle Tom's Cabin, said that CJ Taney "out Herod Herod himsel
f ." If the people obey this decision, he warned, "they disobey God." To be sure
,CJ Taney anticipated all these brickbats. In his ponencia , he washed his hands
by holding that "it is not the province of the court to decide upon the justice
or injustice, the policy or impolicy of these laws." Obviously, CJ Taney shut h
is senses to the higher laws of man and God. The consequence was tragic. Law l
ost the opportunity to bring justice to the American people - - - a bitter and b
loody civil war did. Those in favor of slavery scored a legal victory but it was
a victory worse than a defeat.
Oliver Wendell Holmes, Jr. turned sixteen when CJ Taney announced the Dred Scott
decision. Holmes fought in Taney's civil war and during his three-year enlistme
nt in the army, he sustained three wounds -the first in the chest, the second in
the back of his neck and the third in the heel of his foot. Little did Holmes r
ealize that later in his life, he would don the robe of Justice of the US Suprem
e Court and that he would be confronting again the role of wealth and the functi
on of property in society although in a different context. As we know, the Indus
trial Revolution brought us unprecedented progress but it also aggravated the pr
oblems of the marginalized of society who found difficulty adjusting to the marc
h of modernity. Their poors' descent to life's bottom was exacerbated by World W
ar I and the economic depression that ensued. Labor and the little people needed
a lot of legal protection from their exploitation by big capital. Labor receive
d widespread support from the state legislatures that enacted beneficial laws to
improve the working conditions of the poor employees. Big capital was not to be
outdone. To protect their property rights and prosperity, they shifted the venu
e of their battle from congress where they failed to win the sympathy of the ele
cted representatives of the people to the courtroom manned by judges, who were u
nelected by the people. This was the setting of the famous case of Lochner v. Ne
w York, 198 US 45 (1905). In a 5-4 decision, the US Supreme Court invalidated a
New York law that sought to protect the essential health of bakers by outlawing
their employment for more than 10 hours a day. In a precedent setting ruling, it
held that the law violated the substantive due process clause of the constituti
on because it was "an unreasonable, unnecessary and arbitrary interference with
the right of the individual to . . . enter into those contracts in relation to l
abor which may seem to him appropriate or necessary." The right to contract was
elevated to new constitutional heights and as the US Supreme Court refused to re
dress the inequality of power between bakers and their employers, it adopted the
Social Darwinist shocking view that it is wrong and useless for government to i
nterfere with the process of natural selection, through which the strong will su
cceed and the weak must perish. In a strong dissenting opinion, Justice Holmes o
bjected to the adoption by the court of the views of Herbert Spencer, a prominen
t Social Darwinist. In memorable words, Holmes declared that "a constitution i
s not intended to embody a particular economic theory, whether of paternalism .
. . or of laissez faire. " He added that "liberty is perverted when it is held t
o prevent the natural outcome of a dominant opinion." In upholding the right to
contract, nay the right to property of the prosperous employers, it was obvious
that the High Court ran roughshod over the right to decent life of the poor empl
oyees. The anti-labor aspect of Lochner, however, was not to last.
The Court's unprecedented use of substantive due process to invalidate laws in f
avor of labor brought it to a confrontation with President Franklin Delano Roose
velt and resulted in the New Deal constitutional crises of the mid '30s. After h
is reelection in 1936, President Roosevelt proposed a "court packing plan" that
would allow him to appoint a new Supreme Court Justice for each incumbent who wa
s 70 years old and had served ten years in the Supreme Court. The plan would hav
e provided President Roosevelt with six new appointments. It was his way of gett
ing even with the "9 old men" of the US Supreme Court. The plan, however, drew a
lot of criticisms and failed to generate support even from Roosevelt's supporte

rs. Nonetheless, the High Court junked its Lochner ruling in subsequent cases a
s it refused to invalidate key New Deal laws like the National Labor Relations A
ct and the Social Security Act. In line with Holmes' dissent, the High Court fo
llowed a policy of extreme judicial preference to economic legislations. The era
saw the rise and prominence of sociological jurisprudence of Holmes, Brandeis,
Cardozo and Pound.
I took pains in jogging your memory about the Nazi cases, the Dred Scott and the
Lochner decisions because they demonstrate how law can be misused. They show th
at its misuse is worse when made by the best and the brightest, and worst, whe
n directed against the poor and the powerless. I stressed the Dred Scott and the
Lochner decisions because they concern the struggle between rich and the poor;
they concern our ideal of an egalitarian society and our fight for social justi
ce. They will be your concern in this world where globalization is the continui
ng buzzword. They bring to mind Jesus Christ's two principal concerns in His bri
ef sojourn on earth. If you look at His life, Christ exerted His best efforts f
irst, in explaining to the experts in law how to interpret the law with justice,
in accord with God's purpose, and second, in explaining to all but especially
to the rich, how to be saved. As the Book of Life reveals, it was the misuse o
f law by the legal experts that sent Christ to the Cross. It also tells us that
Christ succeeded in converting every kind of sinner, except one, the rich, you
ng ruler. The rich young ruler obeyed all the laws, but when he was told he had
to give up his wealth to be saved, he refused. He was so unlike Ignatius who off
ered all to the Lord saying in his words, "Take Lord, receive all my liberty, my
memory, my understanding and my entire will, all that I have and possess. You
have given all to me. To you Lord, I return it."
In a few minutes, you will walk out of this hall as part of our educated elite
--- as certified intellectuals. I am not sure how long you will be happy with yo
ur new found knowledge. The great guru Socrates never felt happy about his stoc
k of knowledge, however overpowering and piercing his intellect was. In fact, So
crates disclaimed any knowledge when in one of his usual burst of genius he sai
d: "As for me, all I know is that I know nothing." To be sure, humility set
apart Socrates from the intellectual giants, then and now. Humility is a virtue
espoused by all worthwhile religions and moral movements. Thus, the Hindu script
ures tell us to forget all the wordly knowledge that you have acquired and to b
ecome as ignorant as a child if you want to get divine wisdom. Confucianism advi
ses us not to be concerned that we are unknown but to be concerned with being w
orthy of reputation. Taoism teaches us to forget conquering others and to rememb
er conquering ourselves stressing that he who wins over others may be strong, bu
t he who conquers himself is mighty . Christ was equally explicit when He counse
led "let us never strive to be greatest in this world ... rather let us strive t
o excel ourselves and do more good than we have done."
In fine, the acquisition of knowledge should not be an end to itself. Some say k
nowledge is power and I agree. But there is more wisdom in the reminder that kno
wledge is power only under three conditions: first, if it is knowledge of things
worth knowing; second, if it is known by a person worthy of using it; and third
, and most important, if it is used for a worthy purpose.
Let me therefore emphasize that there is no glory in the mere accumulation of kn
owledge; there is no grandeur in being a mere repository of ideas; there is noth
ing worthwhile in being a mere encyclopedia of inert information.
If there is any profession that has been maligned since time immemorial, it is t
he legal profession . 2000 years ago, Seneca accused lawyers as "smothered by th
eir prosperity ." Plato condemned them for their "small and unrighteous souls."
Today, there is a strong public perception that the legal profession has lost it
s "fine sense of dignity and honor" because it has been "contaminated with the s
pirit of commerce."I!fil The charge that constitutes more than an inconvenience

to our conscience is that lawyers follow the rule of the cannibal - - - we eat w
hat we kill.
Let me conclude by saying, let us get together and dismiss all these charges. Le
t us prove that law is a calling and that the voice that calls belongs to the
God of love and therefore lawyers serve a purpose higher than themselves. Let us
show that the legal profession is not a mere economic occupation and that its c
all does not come from the God of gold and therefore our actions as lawyers are
not dictated alone by the invisible hand of the market forces. I say and I say
it again, the business of law is not a business but service to God and men.