HisPhi Course Outline

Prepared by Atty. Manelee P. Mijares

I. Introduction
II.
A. Law, its role in society.
Law is a dynamic force for maintaining social order and preventing chaos in society. It is
difficult to imagine the existence of a community without law. Lawmakers, courts, and other
officials of the law help to preserve a harmonious society. A basic understanding of the law
and the legal process of one’s community promotes a better understanding of s0ciety. Law
is not a body of static rules to be obeyed by all citizens, subject to its sanctions. Rather, it is a
dynamic process by which rules are constantly being adopted and changed to fit the current
problems of our evolving society.

Law embodies the story of a nation’s development through the centuries. From primitive
customs, codes, and practices, the law of the nation evolves becoming a sophisticated
system administered by highly trained jurists. Our present-day law should not be taken for
granted. It represents years of struggle and thought. To fully appreciate a nation’s legal
process, we need to understand its past.

B. Law, defined.

1. In its comprehensive sense.

The term “law” in its most comprehensive sense means any rule of action or norm of
conduct applicable to all objects of creation. It includes all those which necessarily
determine the activity of men, all those which necessarily determine the motions or
instincts of brute creatures, and all those which God, before all things, has imprinted on the
whole of nature.

The word “law” in the English language is used to refer to both the sum of all legal rules (ius,
droit, diritto, derecho, Recht) and the express rule laid down by legislative authority (lex, loi,
legge, ley, Gesetz).

2. In its specific sense.

Law, in its specific sense is a rule of conduct, just, obligatory, promulgated by legitimate
authority, and of common observance and benefit.

The characteristics of law therefore are: 1) it is a rule of conduct, 2) promulgated by

competent authority, 3) obligatory, and 4) of general observance.

An example is the New Civil Code of the Philippines. It prescribes rules of conduct governing
the private relations between one person and another on family matters, property,
succession and contracts, among others. It was enacted into law in 1950 by the Philippine
Congress, the competent authority to promulgate such laws. All Filipino citizens are obliged
to follow the rules and norms prescribed by the Code. Finally, the Code is applicable to all
Filipinos alike without distinction and therefore of general observance.

C. Law and Morals.

Morals is the aggregate of all the rules of human conduct growing out of the collective sense
of right and wrong in the community.

In every community or group of people, certain rules are imposed on the members because
in every people united in society there are wants and demands which are different from one
another. In the interactions between these rules there arises a set of standards of what is
good or bad, and therefore either enjoined or prohibited. These rules then are applied to
the members in the community, imposing upon them certain definite patterns of good
conduct in regard to their external relationships. Every member, in other words, is
commanded or forbidden to do or not to do certain things in conformity with the totality
of the moral laws of the community.

Although laws and morals have a common ethical basis — the social conscience, and a
common purpose — the happiness of man, the field of morals is more extensive than that of
law. Law covers only social activities, or the relations of man to his fellowman; but the field
of morals includes, not only the duties of man to his fellow-being, but also those to himself
and to his God. Even among our duties to our fellowmen, many are still dictated by morals,
such as those which have a psychological basis, including the duties of assistance and self
sacrifice.

In View of the distinction between law and morals, an act may be entirely in conformity with
law but contrary to morals; and vice-versa, conduct may be justifiable from the point of view
of morals but contrary to law. Law and morals, according to Colin and Capitant are like two
concentric circles; it is, however, perhaps more accurate to say that they are like two
intersecting circles, with many principles of one of variance with those of the other.

It is plain that there is much law that has nothing to do with morals. That a driver shall keep
to the right or left side of the road, or the traffic laws, have no connection with morals. So,
too, is the question of whether there shall be one, two or three witnesses to a will or
deed.
Conversely, what is moral may not be legally demanded. A witness to a crime may be
morally bound to report said crime but there is no law punishing said witness if he fails to
do so. The inter-relationship between law and morals is implanted in our New Civil Code.
Article 21 provides: “Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the latter for the
damage.” When Chairman Jorge C. Bocobo of the Code Commission was asked whether
this proposed article would obliterate the boundary line between morality and law, he
replied: “The answer is that, in the last analysis, every good law draws its breath of life
from morals, from those principles which are written with words of fire in the conscience
of man.”

Dr. Bocobo found inspiration to bolster his cast of mind and attitude towards morality from
a similar provision in Article 826 of the German Civil Code. The appeal of this Code is that: “It
does not try to teach men in a broad sense, but it emphasizes ethical imperatives. Good
faith and fair dealing are to be observed in all affairs. Breaches of good morals, abuse of
rights, and underhanded legal transactions are defeated. The code was meant to fit the
society of the turn of the century, but through general clauses that leave the making of
specific norms to the judges, it could be adapted to new economic, cultural, and socio-
political postulates.”

Dr. Bocobo found it necessary to stick to old precepts of law as enshrined in the Institutes of
Justinian, which says: “Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum
cuique tribuere,” rendered into English: “The precepts of the law are: To live honestly, to
hurt no one, to give everyone his due.” He explained:

“When it is reflected that while codes of law and statutes have changed from age to age, the
conscience of man has remained fixed to its ancient moorings, one cannot but feel that it is
safe and salutary to transmute, as far as may be, moral norms into legal rules, thus
imparting to every legal system that enduring quality which ought to be one of its
superlative attributes.” Thus, as a basic rule of human conduct, Chairman Bocobo provided
in Article 19: “Every person must, in the exercise of his rights and in the performance of his
duties, give everyone his due, and to observe honesty and good faith.”9

D. Law and Customs.

Custom is another method of regulating human conduct which presents much the same
problem in relation to law as does morals. But there is at least one important difference
between moral and customary rules. Customs are far less imperative in their force for they
do not normally imply ethical evaluations. To fail to distinguish law and custom is to confuse
the normative with the existential. A custom is merely that which is habitually done in the
community. It is distinguished by the element of convention, although naturally what is
usual is likely to be thought right. Thus, in China, it is customary to use chopsticks in eating
while in the West, knife and fork are preferred, but One method is not regarded as
ethically superior to the other. Nevertheless, the neglect of even such a customary social
rule as that, for instance, which forbids eating peas with a knife may have dreadful
consequences.10

In the 19th century eating off a knife was typically associated with cheap restaurants that
had dirty tablecloths, uncouth waiters, and chipped dishes. Patrons at these places often
exhibited other bad habits such as hunching over their plates. A Philadelphia restaurant
keeper of the 1880s, hoping to attract better mannered patrons, went so far as to eject
anyone who ate from a knife. He instructed waiters to tap the culprit on the shoulder and
say that someone wanted to see them at the cashier’s desk near the door. The waiter then
brought the person (usually a man) his coat and hat and asked him to leave. If he balked,
a bouncer appeared.

NCC- Art. 11. Customs which are contrary to law, public order or public policy
shall not be countenanced.

What if customs are not contrary to law? The custom would be countenanced.
However, this does not mean that the custom would have obligatory force.
Art. 12. A custom must be proved as a fact, according to the rules of
evidence.

The law doesn't specify the cases when custom is relevant in litigation. But in case
custom is relevant, it should be proven.

Commentators say that custom is important in cases involving negligence. For

example, if a kalesa in Manila is by custom supposed to have rattan baskets to
prevent people from slipping, if a person slips because there is no rattan basket, then
he can sue for negligence.

(1) Presumption of acting in accordance with custom

There is a presumption that a person acts according to the custom of the place.
(2) When a custom is presumed non-existent
A custom is presumed not to exist when those who should know do not know of its
existence.
(3) Kinds of customs
a. A general custom is that of a country; a “custom of a place” is one where an act
transpires.
NOTE: A general custom if in conflict with the local custom yields to the latter however, in
the absence of proof to the contrary, a general custom is presumed to be also the “custom
of the place”.
b. A custom may be propter legem (in accordance with law) or contra legem (against the
law). It is unnecessary to apply the first, because it merely repeats the law; it is wrong to
apply the second. Customs extra legem are those which may constitute sources of
supplementary law, in default of specific legislation on the matter.

It is, however not so much custom as “customary law” that has troubled jurists. Customs
may exist with reference to other matters than social convention, They may govern relations
which in the modern world are commonly treated as juridical. In relatively advanced
communities, the manner of selling a chattel, or holding land, or collecting a debt may be
governed by customs, and we shall see that in the most primitive communities, which have
no forms of political organization, the whole sphere of social relations is almost entirely
regulated by custom. Primitive “law” is customary law par excellence. Its only sanction lies in
habit. With advances in political organization, however, customary law begins to break
down rapidly, or rather its recognition begins to depend upon the sanctions of the political
government. The “customs” are thus rapidly translated into “law” and thus enter upon a
new existence. The origin of many rules of law in custom is long remembered. Land is still
held in England by “the Custom of Kent,” although the enforcement of this custom now
depends upon enforcement by the courts. As long as the administration of justice has not
yet been taken over by a professional class, it is easy to maintain the illusion that the law is
still nothing but custom. The judges seem only to be declaring the popular custom rather
than making law. But long after law has become professionalized, it is common to continue
to speak of customary law; then, however, the term has become hardly more than a
synonym for “unwritten” law.11
Mankind has been governed by custom longer than it has lived under the reign of law. It is
little wonder, then, that many jurists not only have tended to see in custom the most fertile
source of law but have also regarded law itself as the spontaneous expression of the genus
of a people, which develops naturally very much like language.12

E. Law, its general classifications.

Law in its broadest sense can be classified into natural law and positive law.

1) Natural Law

Natural law is not a legal system but consists of certain fundamental precepts of life which
are discoverable through divine inspiration and the use of reason. It is a system of rules
prescribed by divine inspiration to all men, not by any formal promulgation, but by inward
impression upon the human heart and those rules attained by the light of natural reason
and understanding.

Natural law originated in ancient Greece. The Greeks perceived the order and regularity
pervading the whole of nature without which there would have been chaos. Heraclitos (540-
475 B.C.) defined natural law as the natural harmony and order of divergentthings and
events.

In Antigone, a drama written by Sophocles (496-406 B.C.), King Creon of Treves prohibited
Antigone, the sister of Polyneikes, from burying the latter. King Creon had killed
Polyneikes, a rebel, and ordered his body to rot outside the city walls. Antigone invoking
the “unmutable unwritten law” or natural law, appealed to Creon who refused. Antigone
nevertheless buried Polyneikes and she was in turn buried alive upon orders of Creon.

Plato and Aristotle later on strengthened the natural law theory by providing it with a
philosophical foundation. As Cicero who brought the Greek idea of natural law into the
Roman legal system, puts it: “There is indeed a true law (lex), right reason, agreeing with
nature, diffused among all men, unchanging, everlasting. . . It is not allowable to alter this
law nor to derogate from it, nor it be replaced.”13

Examples of the precepts of the natural law are righteousness, justice, equity and fairness.
Natural Law can be further subdivided into physical law, moral
law and divine law.

a) Physical law
In the operation or course of nature, there is uniformity of action or order of sequence.
These uniformities and order are so constant that they are completely depended upon with
confidence and belief. These are known as physical laws or laws of physical science.

To this class belong the so-called laws of gravitation and the law of chemical combination.
For example, two atoms of hydrogen and one atom of oxygen if combined will always
produce a molecule of water. They are really but expressions of a certain order in
nature according to which certain results always follow certain causes.

b) Moral Law
Moral law is the totality of social norms regulating human activity growing out of the
collective consciousness or public sense of right and wrong of the people. It arises from our
conscience and applies to our higher faculties. An example is the rule to do good
and avoid evil.
These norms set the pattern of good and exemplary conduct or the aggregate ethics of the
community. Another example is the norm that spouses must be faithful to each other.

c) Divine Law
The system of rules which God laid down to govern the operations of the universe is called
divine law. Divine law is the law of religious faith and concerns itself with the concept of sin
and salvation, of death and life, of the temporal and the eternal. It is the law of God.
Under the Old Testament, divine law is embodied in the Ten Commandments. Under the
New Testament, divine law is found not only in the Ten Commandments but also found
summarized in the Golden Rule which ordains men to love their Creator and neighbor in the
manner prescribed by Jesus Christ.

Divine Law is the revelation to mankind of eternal law. In the words of Professor Paul J.
Glenn: “The Eternal Law is God’s eternal plan and providence for the universe. God,
decreeing from eternity to create the world for an end [which is Himself} eternally
plans and directs all things toward that end. Thus, there is from eternity a “plan of Divine
Wisdom as director of all acts and movements” — and this is the Eternal Law. St. Augustine
defines the Eternal Law as the divine reason and will commanding that the natural order of
things be preserved and forbidding that it be disturbed. The Eternal Law extends to all acts
and movements in the universe. Thus, bodies obey the tendencies of their nature and follow
the laws of cohesion, gravity, inertia, etc.; plants grow; animals follow the guidance of
instinct; the earth turns upon its axis; the heavenly spheres swing through their mighty
orbits; all in accordance with the Eternal Law, powerless to reject its influence
or to disobey.18

A subdivision of divine law is canon law, the law of the medieval Roman Catholic Church,
which, as revised, is still enforced by the Catholic Church today.
2) Positive Law
Positive law consists of rules of conduct, promulgated by competent authority that regulate
human relations. In its particular strict term, positive law means a statute created by the
legislature of a State. Example is the New Civil Code of the Philippines of
1950.

Positive or human law is in turn divided into two main classes in accordance with the scope
or content of the law: general or public law, and individual or private law.

General or public laws govern the relations of the individual with the state or community
as a whole. Individual or private laws regulate the relations of the members of a community
with one another.

Examples of general or public law are: Constitutional Law, or that which governs the
relations between human beings as citizens of a state and the governing power; and
Criminal Law, or that which guarantees the coercive power of the law so that it will be
obeyed.

Examples of individual or private law are Civil law, or that which regulates the relations of
individuals with other individuals for purely private ends; and Negotiable instruments law,
or that which regulates the special relations produced by negotiable instruments.19

Positive Law can also be subdivided based on whether it creates a right — substantive law,
or merely provides the procedure to enforce private rights or procedural law. Constitutional
law and civil law are examples of substantive law while remedial law the study of the rules
of court, is an example of procedural law. ,

Positive law can likewise be classified as either mandatory or permissive. Mandatory laws
are those which have to be complied with, because they are expressive of public policy and
disobedience is punished either by direct penalties or by considering an act or contract void.
Permissive laws are those which may be deviatedfrom, if the individual so desires.20

F. Law, its nature.

According to former Court of Appeals Justice Crisolito Pascual the foremost authority on the
nature and philosophy of the law in the Philippines, the origin, development and function of
law may be separated into various schools as follows:

(a) The historical school of jurisprudence which appraises the law in the context of the
common consciousness of a group of people. The question this juristic school seeks to
answer is “Where did the law come from and how did it evolve?”
 (b) The teleological school of jurisprudence which considers the nature of law in terms of
the moral and rational nature of human beings. The question emphasized by this school is,
“What is the telos or end of the law?”

(c) The positive school of jurisprudence which considers the law as a conscious rule or norm
of the State backed by its authority and force. For this juristic school the problem is, “What
is the distinctive structure and content of the law?”

(d) The functional school of jurisprudence which considers the law in terms of the
satisfaction of the conflicting or overlapping claims, demands, and expectations of the
people with the minimum friction and waste. The question which this juristic school raises
“How does the law work in weighing the competing individual and public interests in light of
the jural postulates, social interests and national policies? What is the function of the law?”

(e) The realist school which takes the law on the basis of the going experiences of the
people. This juristic school asks the question, “Is the law verifiable in the practical life of the
people?”
(f) The policy science school which considers the law in rela tion to the degree of" success of
a community in achieving certain socio-legal values. The question this juristic school raises
is. “What the basis and the limits of an effective global, regional and na tional legal orders in
relation to the social values?”

The jurisprudence of policy science emphasizes the rights to life, liberty, equality, property,
education, security, and the free exercise of the mind.

g. Another school of thought on the nature of the law is the Marxist—Leninist school which
considers law as the socio-class regulator expressing the state will raised to the level of law,
of the economically dominant class. It performs a protective function against counter-
revolutionaries, hooligans and other disruptive elements. The Marxist-Leninist view was
further developed by Evgeny Pashukanis, who believes that the economic organization of
capi- talist society is determined by commodity exchange and that law constitute a kind of
“superstructure” reflecting the economic organization of society. This school maintains that
in the finally achieved state of communism, law and the state will wither away. What does
law protect?
III. Philosophy of Law- Different Jurisprudential Schools of Thought
A. Historical View
The historical school or jurisprudence examines the manner of growth of a legal system.
Historical jurists have tended to regard custom as the foundation upon which the law was
originally based.
This juristic school was founded by Friedrich Karl Von Savigny (1779- 1861), a German
jurisprudent and legal historian, who in 1814 published his great work entitled, The Vocation of
Our Times for Legislation and Jurisprudence.
 For the historical jurists, the problem of the nature of the law cannot be understood properly
without reference to, or appreciation of, these historico-social conditions in which it has grown.
For them, the law could not have thrived except in this environment.
Von Savigny called custom the real producer of sound law. Law, according to him, is a
spontaneous emanation from the life and spirit of a people.

The historical school introduced the philosophy of the Folk- Soul to the concept of the nature of
law. The law thus constitutes the soul or spirit of the people which permeates the members of
the community in common. This folk soul or folk spirit is called the volksgeist. To put the same
thing in another way, the historical school regards law in direct relationship with the life or
national development of the people.25

In the words of Sir Henry Sumner Maine, the acknowledged leader of the historical
jurisprudence in England, the law is the product “of the huge mass of opinions, beliefs,
superstitions, andprejudices of a people produced by institutions of human nature
reacting one upon another.”26
Having achieved a language, the people began to articulate itself by means of opinions, beliefs,
longings, usages, traditions, idiosyncrasies, arts, customs, and even superstitions. This mass of
oblutiacs constitutes the traditional sources of the jural substance or materials of the people. In
the course of time, these oblutiacs were expressed in laws, rules and regulations. As Justice
Cardozo of the Supreme Court of the United States said, “history built up
the system and the law that went with it.28

In the study of the nature of the law, historical jurisprudence has applied the concept of the
folk-soul or diwa of a people. The volksgeist or diwa of a people provides a means to fathom the
legal history or evolution of the law of the people. Historical evolution serves very well as a
guide to legal thought. The historical doctrine of the nature of the law is also valuable and
significant to policy planners and government functionaries. They may draw on the
volksgeist or diwa of the pe0ple for legal precepts and legal standards as well as positive rules of
conduct.

B. The Teleological or Philosophical View

The thrust of this school is basically teleological for it views the law in terms of its basis and
fulfillment of its purposes or ends.
The influence of natural law philosophy can never be escaped, at least, insofar as the
teleologists are concerned. The teleological view of the nature of law therefore is properly the
broad natural law idea. It is based on the emphasis of justice and ethics and closely related to
the problem of the ideal end of the law.

The philosophers of ancient Greece, who first worked on the problem of the nature of law, felt
the need for an unassailable starting point in the development of their concept of the law. They
believed they had found it in the moral nature or good faith of man.
Thus, to the ancient Greeks, the inquiry was for the relationship of law to justice and ethics
which, by them, cannot be ignored.
Socrates, Plato and Aristotle were of the belief that man has a basic understanding of right and
wrong and that this virtue is related to the standard or measure of the good. Socrates, in
particular, postulated the ethical tenet that no man is voluntarily bad or evil, notwithstanding
that quite often man is ruled by his base appetites resulting in failure to do the right or avoid the
wrong. According to Socrates, one who knows that a thing is right or that a thing is good will
generally do or choose to do that thing. It is, however, in the process of realizing what is right
that one often stumbles and falls because of the corruptive tendencies of the physical senses.
Thus, unless a person is guided by the criterion of the absolute good, his moral scruples
would not be tenable and it is very likely that he would end up acting wrongly. Therefore, for
Socrates, the master virtue is knowl edge of the absolute good.3°

Plato utilized a great deal of his master’s thesis. But Plato argued for a rational principle of
rectitude and just dealing of men with one another. Since man is an intelligent and sensible
being, reason provides him with the means or opportunity of discerning what is right and what
is wrong. In The Republic, which appeared in the most critical period of the Athenean republic,
Plato identified justice as the universal virtue, the single greatest good, and injustice as the
universal vice, the single greatest evil. He considered the law as an instrument of social control
with the paramount aim of discovering, maintaining or administering justice and morality.32
Plato’s doctrine is that justice is a part of human virtue and is therefore synonymous with
morality. Justice is at once a part of human virtue and the bond which joins men together in
society. It is an identical quality which makes man good and which makes him social.

On the other hand, Aristotle felt that Plato’s rational principle of rectitude as the solution to the
corroding hostility between appetite and spirit is as extreme as Socrates’ knowledge of the
absolute good as the governing rule in human conduct. Thus, while Aristotle adopted Plato’s
rational knowledge, he advanced the idea of fair equality as the standard of morality and good
faith. This is to say that Aristotle settled for what is fair and equal as the criterion for the validity
of human conduct.

In his Ethica Nicomachea, Aristotle expounded a narrower concept of justice as the core of his
legal philosophy. What he did was to bring Plato’s concept of ethical justice to the level of
human nature or disposition. The core of Aristotle’s idea is that justice must be understood in
the sense of what is fair and equal. Thus, for Aristotle, an act is justified if and when it is done
with “fair equality” and thus capable of being done also by others.

Law itself had its end and to Aristotle, it was clear that its task was to make men good. This was
deduced from his premise that the state does not exist for the sake of life only, but for the sake
of the good life. But what is goodness? Everyone agrees, Aristotle says, that the highest good is
happiness and well-being. And he defines happiness as an exercise of the powers of life in
accordance with virtue throughout a whole lifetime

As regards the Roman influence on the philosophical school, it can be said that much of Roman
culture was borrowed from the Greeks. Marcus Tullius Cicero, a Roman lawyer, magistrate,
statesman, and a jurisprudent of great eminence, learned his law from Quintus Mucius Scaevola
II, a sincere adherent of the Stoic school of philosophy. Cicero absorbed the Greek idea of the
universality of the natural law and brought it into contact with the Roman legal system.37

In his De Republica, Cicero postulated the activist idea of law.While accepting the Greek concept
that the law is the product of reason which is in agreement with the postulates of natural law,
Cicero believed that the law exacts duty and compliance by means of commands, not by its
reasonableness alone, and prevents wrongdoing by means of prohibitions. Thus, for Cicero,
compulsion is an essential element of the law.

But Cicero did not ignore the role of ethics in the legal order. In his De Legibus (On the Laws),
Cicero posited the view that man is born for the supreme virtue of justice, for “if they have
received the gift of law, they have received justice also.” An individual cannot violate his own
sense of justice. True law, he said, “is right reason in agreement with nature; it is of universal
application; unchanging and everlasting; it summons to duty by its commands, and averts from
wrongdoing by its prohibitions. Inanimate things are bound to obey this law by natural
necessity, but man discovers the law of nature through his reason. For those creatures who
have received the gift of reason from nature, Cicero remarks, have also received right reason,
and therefore they have also received the gift of law, which is right reason applied to command
and prohibition. And if they have received law, they have received justice also. Now, all men
have re ceived reason, therefore, all men have received justice.

Justice is defined by Cicero as that sentiment which assigns to each his own and maintains with
generosity and equity human solidarity and alliance. It has its source in nature and as a matter
of fact, we are born for justice. The most foolish notion of all is the belief that everything is just
which is found in the laws of nations.

A law to the effect that a dictator might put to death with impunity any citizen he wished, even
without a trial, is obviously not a just law. Justice is one; it binds all human society, and is based
on one law, which is right reason applied to command and prohibition. Whoever does not know
this law, whether it has been recorded in writing anywhere or not, is without justice.

The Roman lawyers who followed Cicero in the second and third centuries of the Christian era
did not dwell at length on the meaning of justice. Ulpian, it is true, defined justice as “the fixed
and perpetual will to give to everyone his due.” This definition was repeated constantly
throughout the Middle Ages and was set forth in the Corpus Juris. Justice regarded at all times
as a quality of will or purpose. But it was not until the rise of the Church Fathers that justice
became identified with the will of God.

In his Institutiones, on which much of Justinian’s Institutes of Roman Law was based, Gaius, like
Cicero, advanced the view that some rules are perennial since they are based on the natural law
while others are not since they are in derogation or perversion of its postulates. For Gaius, only
the former comprise the law. In identifying this aberration in the legal order of a politically
organized society, Gaius advocated for a continuous effort of removing harmful and useless
rules of law. In another way of putting it, laws must be re-examined by lawmaking bodies every
once in a while.
This procedure would then provide the means whereby any abnormality in the legal order could
be adjusted to comply with the end and purpose of the law.

St. Augustine, whose active life came at the close of the fourth century and the beginning of the
fifth century, was the most important of the Church Fathers. His life was spent largely in the
town of Hippo in North Africa, where he became a bishop and struggled

to advance the Christian religion. It was here that he wrote his City of God, in which he restates
from the Christian point of View the ancient idea that man is a citizen of two cities, the city of
his birth and the city of God. Man’s nature is two-fold; he is spirit and body, and therefore at
once a citizen of this world and of the heavenly city.44

Justice in the thought of St. Augustine is incomplete if it is not based upon Christian law as well
as the law of nature. What St. Augustine undoubtedly meant was that justice, while essential to
bind a people together in a state, cannot be wholly achieved where the people do not worship
the true God. The importance of St. Augustine’s definition of justice lies in the conception of a
single universal order which transcends the state. Both Plato and St. Augustine regarded justice
as conformity to order; a society which did not maintain order though rules of law was
inconceivable to the Greek as well as to the Christian. But Plato conceived man to belong to no
society wider than the state, and subject to no law beyond that of the state. To him, the
individual achieves justice when he takes his proper place in society. A just man will fulfill his
appointed purpose when he conforms to the rules of the state of which he is a member. St.
Augustine, on the other hand, saw man as a member of a universal and eternal society and
subject to its universal and eternal law.45

The rise of Christianity during the twelfth century provided the theological foundation or basis,
as supplement to the teleological or philosophical view, for the concept of the nature of law.

The scholastic thinkers, notably St. Thomas Aquinas thought of the law as an institution
ordained by God. Here, the Greco-Roman notion of (impersonal) nature as the ultimate source
of laws was substituted by the power of God who governs all things by the rational arrangement
'and distribution of His Divine Providence.

Under this concept, the loyalty of the people to the legal order is

held to be in accordance with the will or command of God, of which

the Church was considered as the authoritative interpreter and

final arbiter.

St. Thomas Aquinas learned from the Greeks the importance of the precepts of the natural law
doctrine in the formulation of positive or enacted laws. In his Summa Theologica, St. Thomas
Aquinas introduced a combination of right reason, on the one hand, and justice and equity, on
the other, infusing it with the profound observation that the first principle of any concept is its
governing rule of human conduct. Therefore, when he considered the law as the product of
right reason he was moving towards a very high estimate of the law. On this idealistic
evaluation, St. Thomas Aquinas believed that the law is an ordinance of right reason for the
 common good and happiness, laid down by him who has the care and welfare of the whole
community, and made public by those in authority to those who are subject to it.

In formulating his legal philosophy, St. Thomas Aquinas advanced the proposition that the public
welfare or the common happiness is the first concern of the people since anything concerns a
person to whom the end or purpose belongs. To this end, therefore, the law is ordained for the
sake of lawness or the common good and happiness. To put it in another way, the happiness
and good of the people should be the first and foremost concern of the law.48

C. The Analytical or Positivist View

D. The Functional or Sociological View
E. The Legal Realist or Pragmatic View
F. The Policy Science: View
G. The Marxist-Leninist School

II. History of Law

A. Major Legal Systems

1. Roman Legal System
2. Anglo-American Legal System
a. Common Law in England
b. Common Law in the United States
3. Mohammedan Legal System
B. Major Legal Traditions of the World
1. Civil Law Tradition
2. Common Law Tradition
3. Distinctions between Civil Law and Common Law
C. Philippine Legal System (History and Sources of Philippine Law)
1. pre-Spanish period;
2. Spanish period;
3. First Philippine Republic (Malolos),
4. the American period;
5. The Philippine Commonwealth;
6. Second Philippine Republic (Japanese period);
7. Third Philippine Republic (1946);
8. Martial Law Period;
9. Provisional Government Period; and
10. Fourth Philippine Republic
11. In Re Shoop Case