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Legal Theory Midterms Reviewer

(Prepared by: D2019 – Cledera, de Guzman, Te, Trinidad )

I. Introduction

A. Philosophy of Law

Pound
Legal Philosophy or the theorizing about law serves to stabilize and destabilize. Such function has
remained over time and the difference lies only in its application (content).

Eagleton
• Law serves to stabilize or destabilize
• The basic framework of legal philosophy has “theory” serving as an “explanation”.
• Theory:
◦ an analysis (a particular framework).
◦ why we do things
• Meta-theory:
◦ an analysis of analytical processes – trying to understand the explanation itself
◦ why are we theorizing that way
◦ everyone exercises in meta-theory, which results to a questioning of society
• Legal Theory/Legal Philosophy
◦ Law is a body of practice and rules to describe behavior, and an explanation of society.
◦ Legal theorists therefore attempt to explain society
◦ a meta-theoretical exercise providing an explanation of human behavior.
◦ analyzing a law is analyzing a theory.
• Communication and History
◦ As people communicate through giving “meaning” to words, language indicates the
existence of behavior. Such communicative behavior is theoretical because of the process of
“giving meanings”.
◦ The same process is done in searching for “history”. We study the past to assign meaning to
events and facts. Hence, to “theorize about law” is to look at the history of law.

B. History

Pound's Historical Periods of Legal Developments


1. Grecian Period
• Natural Law as the Divine
• A primitive form of law existed where the “moral” is defined as the “divine” through the
priestess/priest.
• The reason why the law concerns the divine is to bring “social order”. Order could have only
been established by rules set down by the unimpeachable/unquestionable gods.
2. Roman Period
• Natural Law based on equity.
• A complicated order arose as territories were acquired with some people not having the “same
gods”. As a means of change, the Romans sought the “ius gentum” (law for everyone else).
• A transition from a primitive form of natural law to a more complicated version where the
reason for the law is equity based on customs and jurisconsuls, not the divine.
• Justinian made a codification of existing laws, customs, and jurisconsuls’ commentaries.
• Law for the common good.
3. Middle Ages (Dark Ages)
• Natural Law based on royal authority.
• Feudalism rose after the fall of the Roman Empire.
• The goal of such feudal societies were to have a “kingdom”. These kingdoms were to be
justified by “royal authority” of the kings.
• Reason is then the royal authority itself.
• This authority caused the shift of justification from coming through the divine towards coming
from reason.
4. 18th Century (Exploration, Colonization and Commerce)
• Legal Positivism
• Individualism and the rise of commerce and the merchant class
• The Age of Exploration saw social traditions as a hindrance/obstacle to be rich.
• The expansion from trade involved the interaction of people from different cultures. There
needed to be a new reason for the justification of the legal system.
• Sovereignty is the new justification. There is an emphasis on the prerogative of the State.
• Laws were enacted to help commerce. These enacted laws have to be accepted by both parties.
• There was a shift from universal law (the goal of natural law) to legal positivism.
5. 19th Century
• Codification
• Law served as a justification of the status quo. In a way, natural law justified positivism.
• The maturity of law, through creating standards which were codified through classification and
systematization, led to a stabilization of society.

C. Nature of Law

Two Principal Questions in Legal Theory (Marmor)


1. What makes law valid? (source, legal validity)
2. Why do people follow law? (reason, moral legitimacy)

Law – system of rules governing social behavior

Rule of Law (Hayek)


• Necessary because the government must be based on law and not on the will of men.
• Serves to curb arbitrary power
◦ arbitrary power:
▪ Indifferent to purposes that would justify the use of power
▪ Exercised with belief that it would not serve its purpose
◦ Government action should be governed by rules that are fixed and announced
◦ Rules are for long-term decision-making which enables the people to plan by knowing
when the law will apply.
• The rule of law is a negative virtue
◦ it is not for causing good but for avoiding evil
◦ to minimize harm to freedom and dignity which the law may cause in pursuit of its goals
• Conformity to the rule of law is not the ultimate goal.
• The nature of law is based on people's obedience to it.

Rule of Law (Raz)


• a criticism of Hayek
• If rule of law is mere obedience then rule of law may exist even in a non-democratic system. It
is not always a favorable trait.
• A government of law (Hayek) is a tautology. The reason for obeying law is not clear. The
earlier-mentioned “enabling people to plan” is not captured by Hayek’s idea.
• Ways to Define Law:
◦ Technical (Lawyer's): the laws governing the government (ex. constitutions, statutes, orders,
regulations)
◦ Layman's: Any governing rule that is open, general, and relatively stable.
▪ Does not include informal laws (ex. customs, common law, traditions) as these are not
announced nor fixed.
• The layman's definition makes it appear why people would be guided by law with regards to
enabling them to make plans.

Principal Characteristics of Legal System which Appears in our Body of Law (Raz)
• Prospective, Open and Clear
• Stability/Longer-lasting rule
• Making of particular laws must be guided by open, stable, clear and general rules
• Independent of judiciary must be guaranteed
• Principle of natural justice must be observed
• Courts should have review powers over implementation of other principles
• Courts should be easily accessible
• Discretion of the crime-preventing agencies should not be allowed to pervert the law

Dominant Legal Theories (Marmor)


1. Natural Law
• what makes law valid: moral content
• why do people follow law: common good
2. Legal Positivism
• what makes law valid: enactment
• why do people follow law: sanctions for non-compliance

II. Natural Law

A. Classical Natural Law (Aquinas)

Context
• Aquinas was trying to justify the relationship between law and religious institutions.
• Historical background: the religious institutions were the real leaders as they even decided who
would be king
• There is a need to link the system of law with the supernatural/divine
Definition of Law
• an ordinance of reason for the common good made by someone who has care of the community,
and promulgated
• a binding rule and measure of acts.
• Reasonable
• a particular determination by human reason for the good of society

Purpose of Law
• happiness – salvation, eternal life and to be saved from the pyres of Hell

Legal Validity (What makes law valid?)


• The reason for law is inherent.
◦ It came from God and is a gift of the divine, a divine gift inside humans.
◦ This reason belongs to the whole people or a representative and not just the reason of any
man.
• Man-made laws, because they are made through reason, are reflections of of the laws of God.
◦ Laws must be consistent with the laws of God.
◦ Require promulgation as a rule and measure. Without such promulgation, there is no
binding effect.
◦ Unjust laws are not law. They are contrary to human good and contrary in respect of the
author (such as when he makes law beyond power given to him)

Moral Legitimacy (What do people follow law?)


• the common good
• salvation as universal happiness
• Law takes account of many things as to many persons, matters, and times.

Classification of Law
1. Eternal Law
◦ laws of the universe that determine existence
◦ how things work (or the conception of things not subject to time)
2. Natural Law
◦ laws of the universe apprehended/understood through reason
◦ a reflection of how the universe works
◦ (ex. man’s tendency to bond together into communities, etc)
◦ the participation of eternal law in the rational creature
3. Human Law
◦ devised for particular human circumstances
◦ an application of natural law made by humans
◦ must be consistent with natural and eternal law
◦ a man has a natural aptitude for virtue but the perfection of virtue must be acquired by man
by means of some kind of “training” (ex. admonitions)
4. Divine Law
◦ law given by God
◦ This is the standard of morality
◦ This is told/determined by religious institutions (the ones who know God)
◦ Divine law is needed because human judgment is uncertain. Different people have different
judgments while Divine law cannot err.

B. Modern Natural Law (Finnis)

Criticism of Classical Natural Law


• Does not explain why God’s commands is being obeyed by a rational conscience (that of
humans)

Definition of Law
• criteria for right judgment (for assessing good/bad, right/wrong, desirable/undesirable)
◦ These criteria are normative (or binding) prior to human choice (not set by collective
choosing or positing)
◦ These criteria are acknowledged through reason
• a set of directives to guide conduct towards common good

Purpose of Law
• acquiring the basic goods:
◦ life
◦ knowledge (for its own sake)
◦ friendship & sociability
◦ play (for its own sake)
◦ aesthetic experiences
◦ practical reasonableness
◦ spirituality
• these basic goods are common/shared by the community

Legal Validity
• practical reasonableness
◦ to know what is best for one’s self and to determine nature of common good
◦ a balancing act which requires that people rationally consider the pursuit of all basic goods
against intrinsic value of each of these goods
◦ a moral process of weighing goods for society

Requirements of Practical Reasonableness


1. Coherent plan of life
2. No arbitrary preferences among values
3. No arbitrary preferences amongst persons
4. Detachment
5. Commitment
6. Relevance of Consequences (Efficacy within Reason)
7. Respect for Every Basic Value in Every Act
8. Common Good
9. Following One’s Conscience
The product of all of these is also “morality”.
Moral Legitimacy
• a coordinated pursuit of the common good
• equitable distribution of goods
• an avoidance of selfish desires that lead to the deprivation of the common good

Criticism
• Not everyone would have goals that follow the common good
• It is based on a number of unprovable assumptions such as:
◦ We can't really tell if people have a conception of common good
◦ We don’t know if people know the difference between a common good and a personal good
◦ It's possible that we think people are pursuing a common good when they are only out there
for their own personal desires

Summary
There are basic goods that people use as considerations for guiding their behavior. One of these
goods, practical reasonableness, shapes how you choose which goods to prioritize first, what methods
you use to achieve those goods, etc. Finnis’ idea of morality comes from all the requirements of
practical reasonableness he enumerates. However, in Finnis’ theory of Natural Law, he says that one
should not just consider the basic goods, but also the common good in general. Law’s purpose is then to
strike balance between the basic goods and the common good; law and authority provide coordination
so each member of the community can effectively pursue the basic goods for themselves.

III. Legal Positivism

A. Classical Legal Positivism (Austin)

Focus
• Legislated rules or “statutes” (the what is)
◦ As opposed to natural law’s morality as visibly manifested in “behavior”, an unspecified,
not-enacted standard (the what ought to be)
• Natural law believes that what ought to be cannot come from what is

Definition of Law
• a command from the sovereign with force and sanctions
◦ command
▪ an expression/directive of superior to inferior, for obedience due to fear of sanction
▪ an expression of a wish/a signification of a desire of the sovereign
◦ sovereign
▪ his authority is based on hereditary succession (monarchy)
◦ if there are no force or sanctions then the command is not law
• a “command of a sovereign” is different from other probable laws because such command is
issued by particular people in society
• A society with no foundations of legal system is a pre-legal system, where there is dependence
on coercion.

Purpose of Law
• so that people may predict when they will incur punishment or sanction
What Makes Law Valid
• enactment of the command by the superior through promulgation (a specific process where
statement must be made)

Why Do People Follow Law


• fear of sanctions that are enforced in case of disobedience/non-compliance

B. Modern Legal Positivism (Hart)

Context
• fall of monarchy and rise of democracy, which is based on certain inherent rights of men

Criticism of Classical Legal Positivism


• does not account for law having multiple sources and not just the sovereign
• does not account for non-penal laws such as power-giving laws
• a simple process of promulgation is insufficient
• it is for a primitive society, one where only primary rules exist and will sooner or later such
encounter the following problems:
◦ Uncertainty of rules (rules are difficult to identify)
◦ Staticity (no way of changing or eliminating rules with the times)
◦ Inefficiency (no agency to inflict sanction or decide if violation is committed)

Definition of Law
• a union of primary and secondary rules
• it is not merely a command requiring sanctions
• examples of some laws are without sanctions:
◦ those that establish institutional structures and frameworks (ex. Administrative Law and
Constitution)
◦ Procedural Laws (ex. Rules of Court)
◦ Those which grant rights/duties or limit powers (ex. Bill of Rights)
• the use of other non-coercive means such as rights and obligations marked a shift from a pre-
legal to a legal system
• “Where there is law, human conduct is made in some sense non-optional or obligatory”

Primary Rules
• imposes duties and obligations (seen in Austin's theory)
• those which state certain actions humans are required to do or abstain from, whether they wish
to or not.
• Governs behavior
• Such obligations are obeyed either under threat of coercion/sanction or accepted voluntarily for
its own good

Secondary Rules
• confers powers (not present in Austin's theory)
• provide that humans may by doing things to introduce new primary rules
• involves the creation/variation of duties or obligations
• superior to primary rules

Types of Secondary Rules


1. Rule of Recognition
• tells whether a rule is part of the legal or not
• provides 1) the authority who can make such rules of recognition; 2) for both primary rules
and secondary rules; and 3) the legislative process (the enactment/promulgation process)
• can be seen through acceptance: when people see others following rules and thus follow
what they do
• “specifying some feature possession of which by a suggested rule is taken as a conclusive
affirmative indication that it is a rule of the group to be supported by social pressure it
exerts”
• example: Articles 3, 6, 7 and 9 of the Constitution (bill of rights, executive, legislative,
judiciary)
2. Rule of Change
• a feature which is necessary to identify a rule as law
• the procedure on how primary and secondary rules are changed
• legislative enactment or repeal
• “that which empowers an individual or body of persons to introduce new primary rules for
the conduct of life of the group and to eliminate old rules”
• example: Articles 7 and 17 of the Constitution (legislative, amendatory)
3. Rule of Adjudication
• identifies the individuals who are to adjudicate and the procedure to be followed
• the interpretation of law when laws/rights contradict
• “that which empowers individuals to make authoritative determinations of the question
whether a primary rule has been broken on a particular occasion”
• example: Articles 2, 3 and 8 of the Constitution (policies and principles, bill of rights,
judiciary)

Purpose of Law
• 1) to help people predict when their actions will be followed by hostile reactions
(penalties/sanctions); and 2) to give reason/justification for such hostile reaction (application of
sanctions)

What Makes Law Valid


• promulgation by the sovereign/superior
• followed the law-making process (secondary rules)
• Morality is not necessary from an external point of view (3rd person POV), it is enough that
citizens follow and public officials have the powers of coercion and enforcement. (rule of
recognition)
◦ Morality may be a part of the internal point of view, or why an individual chooses to follow
the law

Why Do People Follow Law


• not just because of fear of sanctions but also because of a voluntary acceptance that they are for
their own good
• Morality is not inherent in law:
◦ “The positivist see only “what is” because “what ought to be” need not be considered to see
whether a rule is a law. Meanwhile, naturalists believe that “what ought to be” is important
and such cannot be derived merely from “what is”.”

How This Remedies the Criticisms on Classical Legal Positivism


• Remedy for uncertainty: Rule of Recognition
• Remedy for staticity: Rules of Change
• Remedy for inefficiency: Rules of Adjudication

Conditions For the Existence of a Legal System


• Valid rules of system must be generally obeyed (and accepted) by both officials and private
citizens
• Officials must have internal attitude towards rule of recognition (internal attitude: when you
accept and voluntarily follow). This is not necessary for citizens but it would make society a
society of sheep
• There should be unified official acceptance of Rule of Recognition with system’s criteria of
validity.

C. Limits of Positivism and Solutions (Dworkin)

On Jurisprudence
• The questions “what is law” and “what makes law valid” are insufficient
• Jurisprudence enters and becomes relevant when the law is not enough or when a question
cannot be answered by existing laws
• Jurisprudence answers the question “which law is applicable”
• The legal profession trains three particular skills, all of which are objective (something that can
be observed and proven by evidence):
1. analysis to extract legal doctrines
2. summarizing facts
3. applying doctrines to the facts
• But these three conventional methods/skills do not answer the why's of jurisprudential
questions:
◦ ex. Why should it be equitable?
◦ ex. Why should one interpretation be chosen over the other?

Criticism of Austin
• While Austin’s theory is that the sovereign gives a general command obeyed because of fear of
sanction; the reality is that 1) a complex society has pluralistic powers (meaning: power does
not come from sovereign only); and 2) Austin does not account for “obligation vs. obliged” (See
Hart’s What is the purpose of law) and Austin assumes that law amounts to force (One may
obey law simply to conform with others who follow the law – that is, without fear of sanctions)

Criticism of Hart
• Hart’s model (legal positivism in general) cannot accommodate the important role played by
principles (standards which are not rules)
• Hart claims that in hard cases where the rule is indeterminate, the judges make laws and do not
merely apply. But the truth is that there are legal principles are internal to law and such
principles are considered in interpreting which law applies to a hard case.
◦ These principles are standards internal to law which specifies when a judge may reverse a
previous decision. This discretion to overturn a decision is only on a “judgment-based
sense” and not “strong discretion” as to amount to “making law” instead of applying law.
Such standards/principles must be weighed against other principles

Three Types of Judicial Discretion


1. When the context does not make things clear or is missing information (vague) – weak
2. When the official has the final authority to decide (final arbiter) – weak
3. When the official is not bound by standards set by authority – strong

Filling in the Gaps of Positivism


• Through principles
• Through judicial discretion (Anglo-American)

Side Note: Anglo-American definition vs Philippine definition of Judicial Discretion


• Anglo-American: A decision may be justified using rules, principles and policies. Such
discretion is based on identifiable rules, principles, and policies is because of a wider latitude
in decision-making (or the decision made on unwritten rules)
• Philippine: The interpretation, application, decision on basis of “jurisdiction” accorded to
them. The courts will not contest such jurisdiction-based discretion unless grave abuse of
discretion.

Definition of Rules
• enacted standards that are always followed
• not necessarily legislated (ex. customary laws)
• applicable in an all-or-nothing way
• don't have weights, they either apply or do not
• example: A valid will (re: property) must have 3 witnesses.

Definition of Principles
• other sources of standards that are not necessarily enacted
• gives guidance but does not provide a strong discretion
• the beliefs of society
• may arise from or contain rules
• justification for adopting new rules
• need not determine the outcome of a case even when applicable
◦ may be weighed against each other
◦ multiple principles may be applied together

Definition of Policies
• standards aimed at a particular goal/purpose decided upon by society
• may contain principles

Application of the Three Concepts (Rules, Principles, Policies)


Rule: Article 12 of the Constitution
Principal: Nationalism
Policy: Filipino-first Policy
General – Nature of Law and Legal Theories
Natural Law Legal Positivism
What makes law valid? Moral content Enactment
Why do people obey laws? Common Good Sanctions for non-compliance

Natural Law Theory


Classical Natural Law Modern Natural Law
What is law? Ordinance of reason Criteria for right judgment
What is the purpose of law? To attain happiness To attain basic goods
(salvation) • life;
• knowledge;
• friendship &
sociability;
• play;
• aesthetic
experiences;
• practical
reasonableness;
• spirituality
What makes law valid? Reason Reason
(legal validity) • Inherent because it • Which is Practical
is given by God Reasonableness
• There is a need to • There is no need
consult a priest to consult a priest
Why do people obey laws? Common Good Common Good
(moral legitimacy) • Happiness of • Helping others
eternal life pursue the basic goods
through coordination

Legal Positivist Theory


Classical Positivist Modern Positivist
What is law? A command of the sovereign A union of primary and
secondary rules
Primary – imposes duties and
obligation (like in Classical
Positivism)
Secondary – confers powers
(added classification in
positivism)

What is the purpose of law? • To enable people • To enable people


to predict when they will to predict when they will
incur sanction/penalty incur sanction/penalty
• To justify the
imposition of such
sanction/penalty
What makes law valid? Enactment
(legal validity) • Through • Enactment through
command 1) made by a prescribed processes
superior/ sovereign and 2) involving the Rule of
promulgation Recognition
• Promulgations is a • Whether it is being
specific process where a followed
statement is made
Why do people obey laws? Fear of sanctions Fear of sanctions; voluntary
(moral legitimacy) acceptance for the good of
law or
mere conformity to behavior
of other people who follows
law (which is the Rule of
Recognition)

Simple Summary of 3 Positivists


Austin Hart Dworkin
What is law? Species of commands Union of primary and ---
backed by sanctions secondary rules
Why do people Fear of sanction Rules of Recognition ---
follow law?
Is there a moral No No – morality is an Yes, in the form of
dimension to law? incident of law and legal principles
not essential