Anda di halaman 1dari 5





Jurisprudence or legal theory deals with the

general philosophy of law, that is to say the
nature and elements of the law.
The question of the nature of the law is
concerned with its derivation, development and
The question of the elements of law deals with
the legal concepts which are material to the
legal ordering of society, namely:
1. State;
2. Sovereignty;
3. Legal Relations;
4. Legal Persons;
5. Legal Facts; and
6. Legal Things
Then, it is concerned with the Theoretical and
technical aspects of law as a discipline.

What is the basis and the limits of global,

regional, and national legal orders in relation to
social values?

Law in General

Means any rule of action or order of sequence

from which any beings whatsoever either will
not, or cannot, or ought not to deviate.
This means that all concerned must cease and
desist from certain activities or conduct which
otherwise would result in some loss, damage,
or injury, whether directly or indirectly.

Rule of action - is any warrant, instruction,

measure, regulation, or decision governing
proceeding, including its consequences.
- There is conduct and cannot be broken.

Orders of Sequence - is any system of

arrangement or consecutiveness, or any
uniformity of a given group of phenomena.

Will-not non-deviation - means that there

is a determination to abide with, or avoid
violation of, the rules of action and orders
of sequence; carries a connotation of
future conformity, prospective agreement,
or eventual compliance.

Cannot non-deviation means that there

is no way but to obey or comply with the
rules of action and orders of sequence.

Ought not non-deviation there seems

to be an alternative to action. However, the
alternative is abandoned because it is the
better of prudence to follow or comply with
the rules of action and orders of sequence
rather than refrain from following or
complying with them.

The Different Schools of Jurisprudence

1. Historical School of Jurisprudence Appraises
- Appraises the law in the context of the
common consciousness of a group of people.
- Where did the law come from and how did it
2. Teleological School of Jurisprudence
- Thinks of the nature of the law in terms of the
moral and rational nature of human kind.
- Understands the law as strictly connected with
morality and naturality.
- What is the telos (purpose) of the law?
NOTE: Teleological means exhibiting or relating to
design or purpose especially in nature.
3. Positivist school of jurisprudence
- Considers the law as a conscious norm of the
state backed by its authority and force.
- For this juristic school, the law is not inherently
moral or natural.
- What is the distinctive structure and content of
the law?
4. Functional school of Jurisprudence
Views the nature of the law in terms of the jural
postulates, social interests and national
policies of the people.
- How does the law work in weighing or
adjusting the competing individual and public
5. Realist School of Jurisprudence
- Takes the nature of the law on the basis of the
on-going experiences and inter-experiences of
the people.
- Is the law verifiable in the practical life of the
6. Policy Science School of Jurisprudence
- Looks at the nature of the law in relation to the
degree of success of society in the creation,
clarification and realization of social values.

Perla V. Arroyo
JD 1-5

It is a rule of conduct, just, obligatory,

promulgated by legitimate authority, and of
(Specific/Strict Sense-Sanchez)


Teleological Perspective of Law

That the law is ordained for the achievement of

the precepts of the natural law, namely
righteousness, justice, fairness, and equity in
the legal order.
The achievement or realization of these
precepts in the legal order is the telos
(purpose) of the law.

Natural Law Basis


The teleological concept of law is based on the

natural law philosophy; natural law has a great
more deal to do in shaping the concept of law
than any other idea.

The teleologists consider the natural law as the

most potent force in the development of legal
institutions and legal concepts.
It is upon the precepts of the natural law that
the completeness of the legal order can be
The teleological school of jurisprudence
believes that a good legal order can be
deduced from the natural law, thus making the
law universally valid for all people.

Greek Concept
- Socrates, Plato and Aristotle believed that
good faith in dealing with one another is the
condition of life in society. This means tat
- Plato explained that what is important in
human relations is not the use of power but the
observance of honesty and good faith.
Socrates Absolute Justice (469-399 B.C.)
- First consideration, no person is intentionally
bad or evil. He aroused in his students a love
for justice to combat the skepticism of the
Sophists. For Socrates, the failure to do what is
just and avoid what is unjust is really due to
morbid physiological appetites, mistakes, or
even bad company.
- Second consideration is that only the
temperate person knows himself or herself and
thus able to bring his or her emotions under
control. A temperate person will do what is
virtuous and just, in relation to rights and
obligations a temperate person will do what
ought and avoid what ought not, and in relation
to other persons, a temperate person act
properly, patiently enduring when necessary

Temperate individual is a good,

happy and sound person able to judge
whether his or her acts and their
consequences would be just (virtuous)
or unjust (vicious)

Basis for Socrates motto Know Thyself

Platos Rational Justice (429-348 B.C.)

- There is hierarchy of reality he drew a sharp
dividing line between ideal reality and physical
- Plato posited the concept of justice yielding to
the rational mind. For him, the human beings
are capable of discerning justice from injustice
even in their minds.
- Rational Justice is sufficient to enable human
beings to attain their moral nature and good
faith, keeping their self-respect by doing good
and fulfilling their proper functions in society.
- It dictates that every individual in the state
should attend to his or her own function
whether he or she is a legislator, a judge, a
soldier, a lawyer, a teacher, a physician, a
carpenter, or whatever.
- There is justice when a person fulfills his or her
proper function and not to take up the role and
position of another person.
- Rational justice means the preservation of
peace and harmony and the prevention of
- This rational justice has been discredited on
the basis of ethical principle of meliorism, that
is to say the inherent right of human beings to
move on and better the quality of their lives.

Aristotles Particular Justice (384-322 B.C.)

- Aristotle denied Socrates concept of absolute
justice as too exacting for it demanded the kind
of moral excellence which is the culmination of
all virtues. He observed that the concept of
justice advanced by Socrates and Plato was
simply unworkable.
- Hence, Aristotle taught his students the sound
sense view of justice. Justice which grows out
of the sense of fair equality. In other words,
justice is sound and sensible when, in light of
events and circumstances, it is fair and equal.
- He insisted that a person cannot be unfairly
treated even with his consent; consent, even if
given, cannot justify an unfair and unequal
- This insight later became the basis of Roman
law concept of volunte non fit injuria.
- Thus, for him, the hallmark of a persons moral
nature and good faith is fair equality.
Roman Concept
Marcus Tullius Cicero (106-43 B.C.)
- Cicero brought the Greek concept of the nature
of the law into contact with the Roman legal
system at a time when there was a need for
some means of controlling an empire already
Mediterranean Basin, which Cicero admitted
was won by injustice both to gods and men
- Since human kind is governed naturally by
utility, then to rule the different races and
cultures under the Roman dominion effectively,
the law must be based on the principle of
utility, that is to say in the interest of the ruler
and not for the interest of the governed.
- Introduced compulsion as an element of the
- Posited the idea that the law cannot be an
effective means of social control on the basis
of rationality alone but must also be able to
compel obedience.
- Compulsion is necessary to Romans since at
that time they do not share the same culture
with those people with whom they conquer.
- Individual persons fulfill their promises and
comply with their obligations not only because
they are intelligent or rational persons but
also due to their deep-seated desire to avoid
undesirable consequences which would
inevitably follow for non-conformity with the
- Opposed prudence as a factor in determining
the justice or injustice of an act or conduct. An
act may be prudent but the question remains,
is it fair and just?
- An honest person might be a fool but he
remains a just person while a prudent person
would both be wicked and unjust.
- Jus Civile are rules established by the citizens
to govern themselves.
- Jus Naturale are rules which are common to
all other persons based on the natural law.
- For Gaius, those that are in derogation of the
precepts of the natural law are not laws at all. If
such laws exist it is due to the sanctions
attached to them, not because they are laws.
- In identifying the aberration in the legal order,
he advocated for the continuing process of
removing such unnatural laws from the books.

Laws must be reexamined by the law making

body every once in a while. This process
would, then, provide the means for legal
cleansing whereby any abnormality or
irregularity in the legal order could be adjusted
to comply with the end and purpose of the law.

Thomas Aquinas (1224-1274)

- Based on the claim of the Romish church to
absolute authority by advancing the idea that
some church doctrines are defensible by
formal reasoning while others which cannot
stand the process of reason must be accepted
by the clergy and the laity alike on faith alone.
- He thought of the law as an institution ordained
Heby God.
- The source of the law was substituted by the
power of God who, expounded by him, is the
Legislator of the whole of justice and Governor
of all things.
- He expressed the view that a human being has
a rational soul and a will of his own. This is
ordained by God for the universal good.
- Like Plato, he believed in the rational capacity
of human beings. For him, what is capable of
human reason is not divine law but only the
precepts of the natural law.
- The Jus Divinum is known only to God.
- He held that human reason influenced as it is
by physiological sensations is not sufficient to
bring human beings to a correct understanding
of what is right and just; reasonable people
have varied ideas as to what is right and just.
- He reiterated the almost forgotten idea of
Sophia or right reason to bring human beings
into a harmonious relationship with one
- By sophia, he meant that the intuition to do
and promote good and evil. The precepts of
natural law are based on the right reason.
Thus, human law has the nature of the law
when it partakes of right reason.

Justice - is considered by him as the

habit whereby man renders to each
one his rights by a constant and
perpetual will. In two aspects, justice
as an ethical virtue and justice as a
juristic norm.
Law and sovereignty - the public
welfare or the common happiness is
the first concern of the people since
the direction of anything to this end is
the concern of those whom the end or
purpose belongs.
Immutability of Law - the Greek and
Roman philosophers believed that the
law pervaded with justice and equity is
immutable and inflexible but Aquinas
advanced the idea that changes do
occur in the subsequent applications of
the law and these changes may be by
accordance with the civilization of the
time and place.

Immanuel Kant (1724-1804)

- One of the foremost figures in philosophy and
- Advanced his general philosophical thought
which he called transcendental philosophy
which means learning or understanding

determined by the mind itself. It is pure

knowledge for it is not gained by or through
sense experience.
He emphasized the idea that the nature of law
cannot be understood in the terms of sense
experience; law to be an effective means of
social control must be based on the a priori
precepts of natural law.
In studying human consciousness and
conduct, Kant reached back to Platos concept
of reality yielding only to human intelligence,
which Plato called Ideas.
He made it very clear that the human mind has
the capacity to construct or harmonize ideas
and concepts even prior to experiencing them
by the physical senses.
This transcendental philosophy is an intense
reaction to the theory of knowledge of David
Hume (1711-1776), which for the latter, all
knowledge is derived from observation which is
to say from sense experience. Kant feels that
Humes idea is not pure knowledge but only
experiential knowledge which varies from
person to person, from time to time, from place
to place which are not binding on all persons in
all places in all times.

The Utility Supplement

- The doctrine of utilitarianism is traceable to
Epicurus (342-270 B.C.). Teleologists with the
happiness as the measure of goodness or
badness of acts and their consequences based
on the hedonistic calculus.
Hedonism comes from the Greek hedone
which means pleasure.
- Epicurus maintained that in the formation of
values and judgments it is the intellectual and
aesthetic happiness or pleasure that are the
highest good.
- The basis of the telos of the law are the
pleasures that are conducive to repose of both
individual and societal needs.
- Pleasure does not mean continuous drinking,
satisfaction of lust, wealth but sober
reasoning, searching for the motives for all
- It is based on two considerations, namely, what
pleasures ought not to be sought and what
pains ought to be avoided in the legal
ordering of the society.
- There are two (2) distinct stages in the
development of the modern utilitarian
supplement of the teleological perspective of
the nature of law, namely, the Benthamite
Concept and the Jherinian Concept.
Benthamite Concept
- Jeremy Bentham (1748-1832) advocated a
formula based on calculations of the social
utility of an act or conduct in the determination
of the validity of positive law.
- He placed the emphasis of his law reform
movement on the greatest happiness of the
greatest number of individuals in the
- His utilitarian individualism as William
Friedman puts it, was directed towards the
emancipation of the individual from restrictions
and inequalities which impeded the free play of
forces that were to give full scope to individual

The ultimate test of goodness or badness of an

act or conduct is the quantum of justice
(pleasure) or injustice (pain) that it yields.
He concluded that the law is a system of social
control directing and governing persons to the
maximum of happiness and to the minimum of
misery. Thus, rules should be judge by their
tendency to promote happiness and avoid
He specified the ends of the law, namely, to
provide substance, to produce abundance, to
encourage equality, and to maintain peace and
security and this can be accomplished by
direct pursuit of pleasure and avoidance of

Jherinian Concept
- It is advanced by Rudolf von Jhering (18181892) who disagreed with Benthams individual
interests. According to him, the law should
address the realization of the partnership of the
individual and society.
- While individual persons have their own
interests to consider they cannot ignore the
interests of society of which they are parts.
- This is called social utilitarianism.

prison after he was sentenced to forfeit his life.

Socrates refused and told Crito that while he
considered the sentence passed upon him to
be unjust and unfair it was, nevertheless,
lawfully rendered and, therefore, he intended to
obey it.
Positivist Approach
- Separation of law from moral law and natural
a. Law not Necessarily A Moral Concept
- The idea of teleologists that the norms of moral
and natural laws are inherent in the concept of
the nature of the law is emphatically criticized
by the positivist school of jurisprudence. John
Austin, advocated the separation of law from
moral and natural law, as follows:
With the goodness or badness of the law as
tried by the test of utility or by any of the
various tests which divide the opinions of
mankind it has no immediate concern.

Hegelian Concept
- Georg Frederich Hegel (1770-1831) stated that
his basic premise that the law is the product of
an evolutionary process and this appears in a
dialectic pattern.
- This pattern is a design in which one element,
called thesis, is followed by an opposite
aspect, called antithesis, and the struggles
between them is either wholly or partially
settled or reconciled by the synthesis of the
contending views.
- The opposing views or ideas are resolved by
what Hegel called the principle of identity
which states that all that is rational is real and
what is real is rational. By this, he means that
noting is real or actual unless it is intelligible or
rational as well.
- The principle of identity seeks the reconciliation
of opposite views or ideas, i.e., reconciling
thesis and its antithesis resulting in the
synthesis which then becomes the new

Law is not necessarily interested in an axiom

for the norms of morality.
Relation between law and morality is only
accidental, not direct.
Principal thrust, then, of the positivists is to
keep the legal order apart from the perplexities
of ethics.
Persuaded that the legal order can exist
without conscious regard for the norms of
morality, although the latters influence are not
completely denied.

b. Uncluttered by Metaphysical Speculations

- It views the issue by way of the empirical
sphere of reality the is rather than the
transcendental sphere of the ideal the
- The reason for this critic is that the precepts of
the natural law are vague, for, indeed, their
meaning are not shared in common by
- To free the concept of law from metaphysical
- Positivists avoided the study of the nature of
the law characterized by the ought.
- To examine the question of the nature of law
without cluttering it up with axiological

Seed of Legal Positivism


Analytical Jurisprudence, as some are inclined

to label this particular perspective of the nature
of the law, is one of the older systems of legal
science in the sense that the beginnings of
legal science among Roman jurisprudents are
to be found in the use of analysis.
But it also deals with mature legal systems.
One of the recent methods of the science of
John Austin (1770-1859) developed, uses the
method of comparative analysis. The label
emphasizes the perception that the law is
consciously created by the state.
The law is positive, that is to say posited by the
authority of the state.
The seed of legal positivism was planted by
Socrates. In Platos dialogue Crito, he recorded
that the followers of Socrates escape from

Hobbes-Austin Concept
- Thomas Hobbes (1588-1679) and John Austin
jurisprudents who developed the concept of
law in terms of legal positivism.
- Hobbes stated that laws cannot be unjust since
they are made by the sovereign power.
- All that is done by such sovereign power is
- There must be one compelling order or
coercive force.
- It can be delegated by the State, to the
- Austins stated that it is absurd to say that
positive law is void if it is not in accordance
with the natural law and to proclaim generally
that all laws which are contrary to the natural
law are void and not to be tolerated is to
preach anarchy, hostile and pernicious.

In legal positivism, Austin stated that there is a

clear-cut distinction between law and morals
and between law and natural law.
Law is detached from moral and natural law,
and the attention is confined to the distinction
and division which relate to law exclusively.

Pure Positive Law Response

a. Lousanne Brand
- Ernst Roguin of the University of Lousanne
sought the purification of positive law on the
basis of creative thinking.
- The validity of positive law lies in pure
juridical science consistent with the culture of
the people.
b. Vienna Brand
- Hans Kelsen (1881-1953) of the University of
Vienna simply removed from the concept of
law any moral implications.
- Laws must be represented empirically and
must stand on its own leg.
- Pure positive law theory considers only
human norms, not norms coming from other
superhuman resources.
- Laws are viewed as pure, if there is a grand
norm and all laws must conform to it such as
Constitution where all other laws must obliged
to be in accordance to it.
- The Grand norm is conceived by the collective
will, capacity and competence of the people
free from axiological ideas.
- Laws must be normative
- Bridges the gap of the is and the ought.
- Collective will is achieved.
- It must be real and possible justice.
- Appropriate to the evil sought to be destroyed
empirically validated even if inappropriate to
the evil sought to avoid.
Purification of Positive Law
- Laws must be studied as it is and not how it
ought to operate.
- Nature of the law must be presented
empirically, meaning, it must stand on its own
merit without make-up of axiological ideas.
- It excludes any divine or natural law.