LAW CANNOTES BINDING communal rules- the dos and donts.

Classification :
1. Jural refers to sanctioned or enacted laws- statutes,case law, normative
rules and precepts
2. Non-jural- meta legal- not anchored on human legislation,.DIVINE,NATURAL
and PHYSICAL
a. Divine sacred writing such as biles
b. Natural law law of our human nature
c. Physical laws mechanical laws of the universe laws of gravity,or
Newtonian mechanics
The concern of the lawyers is jural and to the extent and also non jural to
the extent of pointing its origin and propriety as a right or duty
PHILIPPINE CASE LAW :Law is a :
1. Rule of conduct(PEIC)UN definition of RULE of law- are principles of governance in
which all persons are accountable to laws that are Publicly
promulgated, EQUALLY enforced, independently adjudicated,
consistent with the international human rights,norms and standards.
2. Just and obligatory
3. Promulgated by the legitimate authorities
4. For the common observance and benefit
UN RULE OF LAW requires AEFASPLAT
Accountability,equality,fairness,avoid arbitrariness,separation of
powers,participation in decision making, legal certainty,adherence
to the supremacy of law, transparency
Corollary is AQUINas definition
1.
2.
3.
4.

Reasonable ordinance people are moved to follow it when reasonable

For the common good- It is good for everyone not just the majority
Promulgated must notify the public as a matter of due process
-By legitimate authority =must come from a comepetent authority
MODERN STANDARD for the rule of law

8 routes of failure for any legal system according to fuller. FRUCULDD

1.
2.
3.
4.
5.
6.
7.
8.

Failure to give notice to the public

Retroactive legislation
Unclear or obscure legislation
Contradictions in the law
Unstable legislation or frequent changes in the law
Lack of definitive rules/law,so that rules have to be decided ad hoc
Demands that are beyond the powers to observe the law
Discrepancies between adjudication/administration and legislation

LEGAL ISSUES
SOCIAL CONTRACT THEORIES
1. Anarchist violence and coercion
is wrong and the only real law
must be consensual which must
appeal to the conscience not to
threats of punishment
2. Social contract theories
constraint is necessary since
society is presumed to have given
consent to establishing the
constitution and the state. Ship up
or ship out principle.
3. Freud- reward and punishment are
needed for punishment: the way a
child needs to ne trained so does
society.
4. International law- tempered from
using forcesagainst every member
of the international community
since by principle they are given
equal status.
5. In a developed society- law is
followed simply because it is the
law. Violence is hardly resorted to.
Laws and mores
What is legal is not necessarily moral
and what is moral is not necessarily
legal.
Every good law,draws it breadth
of life from moral. A deterioration
of morality in the society will
result in the deterioration of law
and vice versa.
Law and mores have common
eical basis and spring from the
same source-e social conscience.
Moral norms and established
customs are unenforceable
without law its also diffeicult to
enforce law when morally

unacceptable.

DIFFERENCE BETWEEN RELIGIOUS AND

SECTARIAN MORALITY
RELIGION- law must conform to what is
considered moral as based its religion .
Concerned with private matters and
preferences
SECULAR- law must conform as to what
is considered moral as based public
morals.concerned with public morals
embracing moral of public affairs and
public order

Law

Justice
Blindfold of justicereflective equilibrium
whenever we make laws
or decisions
Original position.
In making choices,
think that you
would randomly fit
in anyones shoes .
This way, youd
make it a point that
everyone gets a fair

Equality / egalitarianism
Make equality a goal
In terms of being
human,we were all born
equal , we can interbreed
in whatever race we are
from

chance. Since you

would end up being
anyone, you would
wish a little of
something for
everyone.

Private
Let alone- let individuals
own a property- laissez
\faire
Those kept for personal
consumption and
improvement

Public
Properties we use and own
in common. Everyone can
free ride in their use.
Private ownership
abolished only
personal ownership
is allowed

Communism ruleda person does not

feel personally
accountable or
motivated to devote
his time to the
property.

Corporate
Artificial
Not private not
public
Expand use of
properties for
dividends
Stock ownership
The most
professional
medium of
ownership
to solve corporate
greed- anti trust law
was formulated
monopolies are not
naturally bad if they
can cut the cost of
production ,
workforce given
their available
capital, large
workforce and
factories.

Welfare economy- make markets fair this is in the middle ground of the three
properties above: private,public and corporate

Determinism theory- all events are caused by antecendent conditions, people do

not have much free will but are like complex machines subject to internal and
external stimuli
Soft version of determinism is compatibilism- freedfom is compatible with external
and internal determinants.
THEORIES

Natural law theory

positivist

What the law ought

to be (lex ferenda.

Life itself has

rules,and we
call them law.

Why of the law

question
Looks into the
purpose,princi
ples and end
of the law.
Laws are rules
for man to
realize his
basic natural
goods
Nature is how
people
normally
behave and
are expected
to behave.
The law is law
as long as it
pursues the
precepts of
reason: RJEF:
reasonablenes
s,justice
equality and
fairness
FINNIS- 7 basic
goods natural

we follow the
law because it is
the law.
RULE OF LAW
LEGALISM
RULE BY LAW extreme
totalitarian
hobessian form.
The acts of the
lawmaker are
the law no need
for
precents,proced
ures or
processes.
Hart of law-=
Harts concept
of soft
positivism . Law
is a system of
social rules.
Tribal socities
being closely

Interpretivist/contruc
tivist theory
Middle ground
between postivit and
naturalist
BEST FIT THEORY
best accommodates
the communitys
common convictions.
Principles not readily
laid down by natural
law,something has to
be constructed by
adjudication of
judges

GET REAL
theory
PRAGMATIC
jurisprudence

Focuses on
human
realities often
overlooked by
hard law
technicalities
and abstract
policies
In crafting a
law and
deciding
acase. Always
think like a
bad man
1. Cares
only for
the
conseq
uences
of law
2. What
the
courts
will do
to him

to menKLARPPS

1. Knowledge

2. Life

3. Aesthetic
experience

4.
Reasonablene
ss

5. Practical
reasonablenes
s

6.Play

7.Sociability
Normative
jurisprudence- lex
ferenda- what thelaw
ought to be

related to
started with a
regime of
primary rules.

Analytic
jurisprudence
studies and
recognizes law
simply for what
it is

Critical legal theory

Law means to enshrine
and coercively impose the
wishes of the dominant
group

ECONOMIC APPROACH
The purpose of law is to
increase the balance of
happiness through wealth
maximization .

ONCE upon a time

approach-

Functional sociological
approach

Holds that law has a past

and progression, develops
in gradual evolutionary
process

Law both means of social

control and social
advancement

FORMS And Fundamental

approach
Law is a strict science
governed by formal
actions , legal principles
and rules of logic

Practice Theory
Bobbits wrote the
diffefrent
approaches,modalities,hav
e their own uses.

People in wealthier
societies enjoy more
freedom and quality of life

Textualism- plain meaning

approach to the law
ORIGINALISM- original
meaning- says that judges
should only interpret not
construct

One should know how and

when to use the
approaches and
modalities in making
asrguments.