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POLICY SCIENCE PERSPECTIVE Reported by: Ralph Sapitula and Ysabel Ubana

SUMMARY The policy science school of law was developed at the Yale School of Law and expounded by Lasswell and McDougal (Yale University). The policy science school argues law is not a mere body of rules, that it is a continuous process of democratization of social values, that it is a means for the equitable distribution of the social values, and that the seven basic social values (power, knowledge or enlightenment, respect, income or wealth, safety and health, liberty and equality) should guide law-making and the legal ordering of society. These values are translated by means of policy guidelines of the state. The policy science school is thus an advocacy of social values. OUTLINE 1.) The Yale Approach 2.) Policy Science Jurisprudence 3.) Policy Process and Problems About Values 4.) Social Value a. Power b. Knowledge c. Respect d. Income e. Safety f. Liberty g. Equality 5.) Overarching Social Value 6.) Concept of Law 7.) Importance 8.) End in View

THE YALE APPROACH Launched at Yale University; World War II Prof. Harold D. Lasswell (1902-1974) and Prof. Myres S. McDougal (1906-1975) Heraclitus- the major problem of human society is to combine that degree of liberty w/o which liberty becomes license Calalang v. Williams- liberty is a blessing w/o which life is a misery; Liberty to prevail over authority= Anarchy; Authority to prevail over liberty= Slavery SOCIAL VALUES: Direct and alternative solution + global, regional and national tensions which affects HR= MOVE AWAY from VALUE-FREE APPROACH of LEGAL REALISM Peace, Order and Security= affirmation that we cannot afford war Problem to the nature of law- relevance to the present predicament of the world

Policy Science Jurisprudence Policy- settled guideline, strategy/program adopted by legal order Policy Science- discipline concerned with the CLARIFICATION; and (3) REALIZATION of social values Law is an instrument of SOCIAL ORDERING Characteristics (ApOJHuRe): 1. Reaction to Apathy towards Social Value o o Universities- training grounds of Policy planners/makers and govt officials Law Courses= not respond positively to the vital needs of present day life in a world of cumulative crises and increasing violence FAILURE TO RELATE SOCIAL VALUES=LEGAL EDUCATION APATHY to SV- tendency of govt to view HR as hindrances to GP (rel. individual=govt and individual=individual) (1) FORMATION; (2)

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2. Movement Away from Ontological Jurisprudence o o PSJ: Value-Free approach of Legal Positivism to the study of the nature the law = DANGEROUS No moral principles that consciously precede the law = need not be any moral criterion for its validity o LP= there is nothing immoral that is legal

Judicial Legal Realism- statutes, rules and ordinances are no more than sources of the law and that the law is what courts will do or likely do = Destructive of GP and func.

PSJ: OJ- Not help in the reduction of National, Regional and Global tensions; incapable of solving the needs and reqs. Of present-day systems of public order

3. Emphasis on Human Rights o o o PSJ: movement away from Despotism towards Free Society Right to: Life; Liberty; Equality; Property; Education; Security and free-exercise of mind Factors that underlie POA abhorrence for the constant abuse of HR despite their formal statements in Consti and discourses of govt officials and private individuals o o o Free election= Ceremonial plebiscites Freedom of Expression= Discussions dir. By a monopoly of govt and party Political Party System= Leaderliolatry

4. Movement for the Universal Recognition of Social Values o o o PSJ: the law as an instrument for the achievement of the SV w/c is the professed thrust of the law LAW- imperfect = Ignores SV How a state control its people and its resources, how it organizes and manages its institutions of social and legal controls, how it formulates, operates and controls political parties, pressure groups and private associations, may affect vitally the practice of other states on these matters and their willingness to provide adequate measures of cooperation. Need- universal climate of peaceful and transparent procedures where govts and their leaders operate openly under the guidance of the basic SV Real state of POA- legal ordering expresses, embraces and maintains the SV and is in harmony with the good and happiness of all humankind

Policy Processes and Problems about Values 1. VALUE CREATION- legal order is not in a position to recognize all human desires at the same time; some HD are better; BUT- formation and articulation by and through structures and instruments may not agree with each other 2. VALUE CLARIFICATION- task of reassessing the worthfulness of HD in light of their meaning and import to society in the face of changing experiences of the people (INTRINSIC VALUE) 3. IMPLEMENTATION- desires w/c have become SV. Develop programs and strategies Preparation of options/alternatives to achieve the SV

SOCIAL VALUES GOALS POLICY GUIDELINES Statute, Admin. Order, Juridical Decision 7 Basic Social Values 1. POWER 2. KNOWLEDGE 3. RESPECT 4. INCOME 5. SAFETY AND HEALTH 6. LIBERTY 7. EQUALITY embraces the whole of our present-day democratic preferences for a peaceful world corresponding as they do to the actual desires of the people SV: instrumental in the creation, clarification and implementation of HD

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POWER Power- Forms of Authority and Facts of Social Control o Forms of Authority- dist. Of the exercise of the SV-Power in a politically organized society

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eg. Govt (national &local); Pressure Orgs in the Community (political, religious, professional business, civic/cultural, unions)- free competition Facts of Control- True and Actual

Two-Fold Meaning: o o Capacity to secure and maintain the fundamental HR Competence to make decisions w/o any undue interference from any group/ form of authority

DEMOCRACY

II.

KNOWLEDGE Aristotle- All men by nature desire Knowledge; as rational beings, they naturally seek Knowledge/Enlightenment One of the basic manifestations of deference to human beings is to give full weight to the fact that they have minds. o State- providing development formal and continuing means of intellectual

2 Basic Purposes: o Dispel Misunderstanding- general aspect Widespread understanding; freedom in pursuit of Truth (preservation of natural and primal rights) vs. falsehood; disinformation; thought control Right to think and private judgment

Eradicate Ignorance- particular aspect Emancipation of the mind through education and instruction at all levels according to talent and ambition Cognition and Appreciation of how democratic ways and processes work and how they can be continued to work better

Tendential Functions o o Public Interests- maintenance of general progress Cultural; Moral; Political and Economic

III.

RESPECT Regard for life and esteem for the dignity and worth of human personalityHUMAN BEINGS o Human beings are respected, in the present sense of the word, when they are taken into consideration by all with whom they come in contact in spheres of life beyond the making of collective decisions.

Regard for life or limb- free and unharmed possession of the complete body Regard for Human Personality: o Positive- freedom from discrimination; equal opportunity; interpersonal relations Caunca v. Salazar- SC held that Human Dignity is not a merchandise appropriate for commercial barter/ business bargain. Fundamental freedoms are beyond the province of commerce/ business enterprise Human Dignity and Freedoms are essentially spiritual. Art. 26 of the Civil Code of the Phils.

Negative- individual initiative , choice and determination are restricted/ interfered with

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INCOME Importance- (includes Savings) insufficiency of Income dulls a persons desire for other values (concern for democratic principles. General: denotes Freedom from Want and the Conservation of the Natural Resources- economic betterment of people 1. Freedom from Want- Labor Unionization; CBA; freedom to sell ones own goods/services in the best market; refusal to sell it; higher wages; fewer work hrs; better working conditions; fair measure of job security 2. Conservation of Natural Resources * * * * Particular: Immediate Necessities and Immediate Comforts IN- social anachronism; enjoy a happy life IC- improvement of mode of living is a HD Atok-Big Wedge Mining Co., Inc. v. Atok-Big Wedge Mutual Benefit Assoc.- SC held that the min. amount actually needed by a laborer and his family can by no means imply only the actual min., as some

margin/leeway must be provided, over and above the min., to take care of contingencies, such as increase of prices in commodities and increase in wants, and to provide means for a desirable improvement in his mode of living. * Min. Income= Immediate Necessities + Immediate Comforts

V.

SAFETY General Aspect: denotes freedom from fear of disease, pestilence and hunger as well as freedom from fear of violence, disorder and war Particular Aspect: o Public protection Simple Measures - such form as street lighting, widening and maintenance of roads, installation of traffic signs Complex measures such form as national constabulary forces, municipal police forces, measures for the protection of life and property from fire and other destructive phenomena public health -It involves attitude and habits of healthful living -Important thing here is EDUCATION IN HEALTH not PHYSICAL EDUCATION merely. Social security The measures for social security should take into account aid for the unemployed and financial assistance for the aged. peace and order two measures taken for peace and order first: Eradication of friction and conflict. Second: The promulgation of specific rules with definite incentives and/or sanctions for the purpose of certainty in the determination of the extent and limits of the conduct of every person in the community.

VI. LIBERTY o LIBERTY is not unrestricted o LIBERTY is manifested in the ability of a person to do things which are essential to realize his or her conscience, opportunities and interest. FORMS ACTIVE MODE legal authority, which may either be legal claim or legal power.

PASSIVE MODE legal exemption, which legal privilege.

may either be a legal immunity or

TENSION OR PROBLEM AREA The social values of Liberty, Respect, and Equality form the problem-area in the legal ordering of society. Unrestricted or unreasonable interferences by the government or by influential groups can destroy these social values. Yet still the government is nonetheless essential to their maintenance, augmentation, and even preservation. Liberties guaranteed by the constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. Therefore, the BALANCE to strive for is to consider the government as an organ committed to the protection of the social values. PARTS o o PERSONAL LIBERTY It embodies the freedom of a person in coming from one place to another also it deals with the security of body from harm and injuries. RELIGIOUS LIBERTY - The free exercise of religious belief. Freedom of conscience Freedom of worship Freedom of religion CIVIL LIBERTY It embraces fundamental exemptions and immunities which have to with property, marriage, family, and education POLITICAL LIBERTY It is the right of the citizens of an organized civil society to influence and participate in the management and operation of public affairs and political processes. ECONOMIC LIBERTY Means the freedom as a producer or user in a competitive system without interference from the government beyond regulation which are necessary to keep economy in balance and order. NATIONAL LIBERTY The autonomy or the right of determining and establishing the form of government which the people considers the best in safeguarding its values and rights.

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PARADOXES OF EFFECTIVE LIBERTY Contradiction in the recognition of the social value liberty. Despite the inclusion of liberty in constitutions and decisions of higher courts, violations are still notoriously frequent. Conditions often violated: economic insecurity, moral degradation, violence, and wars.

With the right national policies, certain conditions like peace and order, social security and financial stability will enable liberty to thrive.

VII.

EQUALITY Negative Aspect: 1. equality is not absolute similarity 2. equality is not an assurance that everyone shall, as a matter of fact, be the same in all relations Jural Inequality: material and relevant to the legal ordering Invalid view of Equality: equality means similarity of all matters of social relationship

Positive Aspect: the point is that this social value is worth striving for in the areas or parts where they are attainable

All men are equal Each persons well-being and happiness is as secure and inviolate as that of every other person Everyone has a rightful claim to equal treatment and protection of the law, regardless of any inconsequential and insignificant disparity

Constituent Parts John Rawls (1921-) 1. The equal right of everyone to the total system of basic liberty 2. Fair equality in opportunities to offices and positions in order to heighten the chances of those with lesser chance or opening Equitable sharing of social goods as well as material goods to the greatest possible of the least favored

EQUALITY and Balance before the Law All individuals have a rightful and lawful expectation to the same treatment and protection of laws without regard to persons involved. All individual owe equal obedience to the laws. 1. SIMPLE TYPE religion or sex is irrelevant in the exercise of suffrage

2. DISTRIBUTIVE TYPE the apportionment of benefits and burdens that can be shared among the members of society EQUALITY and balance of Rights and Freedoms Every human being is endowed with certain primal or original rights and freedoms, to wit: 1. Right to life, liberty, security and property 2. Right to religion 3. Right to education and free exercise of the mind 4. Right to free expression 5. Right to peaceably to assemble for redress of grievances These rights and freedom are not concessions of the government to the people. They can, indeed, be asserted against the government at any time.

EQUALITY and balance of Political Value Every individual must count for one and only one in political participation without regard to person. One individuals political value must be counted no more and no less than that of another. Principle of one-on-one

CONCEPT OF LAW Can truly be an instrument of global, regional and national control when it is committed to the complete achievement of the social values that constitute the professed ends of democratic societies. An advocacy of consistent, compatible and legislation and decisions on the basis of social values. principled policies,

This means that decisions or solutions for the legal ordering of society can be authoritative and controlling only on the basis of the social values.

Where decisions or solutions are authoritative but not controlling, then there is no law but only pretense, and where decisions or solutions are controlling but not authoritative, then there is no law but only naked power.