Law is not an adequate system of rules

Normative Mass of rules

Normative System Culture specific to what is believed
Dogma What is believed to be proper or true
Customs ex. Fiesta
Mores Rights which are just

1.
2.
3.
4.
5.

Norms
- Not necessarily are legal
- Identification of norm emitter ex. Revised Penal Code
- Natue of consequence ex. Jail, TRO

Robert Summers 5 Techniques of Law

Remedy Grievance
Penal Instrument
Promote Certain Activities
Manage Public Benefits
Private Arrangements
Austin - Law as commands of the sovereign body
Problem Very many rules of law do not command us to
things

Hart - Certain rules which impose duties upon its members

concerning
Allott
standard of behavior.
Legal system is not necessarily only obeyed because of the physical
1. Primary Rules contain basic criminal law
force lurking
rules
behind them
- Substantive, meat of the law
Law is law because it is a law This is a circular argument and
2. Secondary Rules In a complex society, the
because
primary rules will give way to secondary rules
I said so
Procedural, Descriptive
Rousseau
1. Rules of Recognition Who is authority?
2. Rules of Change What should be done to
Man is born free yet everywhere he is in chains One thinks of himself
change?
to
Ex. Rules of Court
be the master of others yet remains a greater slave than they.
3. Rules of Adjudication Whose judge will
Social Contract
ex
decide and what court?
1.
A boss who is called boss and his orders are followed, but in turn he
Problem Too simplified. More complex scheme
Needs to take care of his employees
required
2.
While a ruler gives commands, he is less free than his subject
Dworkin Principles (guidelines) differ from rule (all-orAccording to Oliver Wendell Holmes
Answer to Dworkin Life of the law has not been logic but experience.
nothing)
3 Types of Authority (Max Weber)
1.
Personal Characteristics ex. Celebrities
2.
Traditional Authority ex. Elders, Dynasties
3.
Bureaucratic Set of rules, ex. Election

Marx Proletariat possess the labor power while bourgeo

capitalists own the capital

Who determines Authority?

1.
Recognition of Authority ex. 3 Branches of Govt
2.
Means of resolving disputes ex. Judiciary
3.
Mechanism for Interpersonal Relationships ex. Oblicon

Morality
-Derived from divine law accdg. To early Philosophers
-Gods law constituted absolute criterion of good and
evil, human law was beyond criticism
- is relative and changes overtime

LAW AND SOCIETY

LAW AND MORALITY

Not everything related to law is related to morals

Ex. Seatbelt law illegal but not immoral
Telling lies outside of court Immoral but not illegal

Emile Durkheim Different Morals of People

Social Cohesion
St.toward
Thomas
1.
Simple, technologically undeveloped whole group acts
a Aquinas
Law should be reasonable
common goal
Its okay to create many laws as long as reasonable
aim, moral and legal code. Deviance? Then repressive laws are sanctioned.
2.
Advanced Group become more complex and needs change.
Morality is about sex and violence
Compensatory rules
where object is not to punish but solve grievances and restore aggrieved
Lord Patrick Devlin
-Maccabaean Lecture in Jurisprudence, British Academy,
Continuing Relationship Same is true with damage paid to people aggravated
to
1959 March
18
return
-Believed that it was unacceptable to distinguish
them to status quo
between public and private morality
-Society destroys itself from within
In the primitive society
Joel Feinberg
- People do not need each other
-1971 Oberlin Colloquium in Philosophy
- They are repressive
Utilitarian concept in Ethics
1. No difference with public and private morality
Karl Llewellyn
2. No way to find out private morality
Law-Jobs Theory Every group has a basic need which are catered for by the
3. No need because no person is offended
4. No complaint, no one gets hurt
social institution of law
5. Dont punish if it is private

Lon Fuller
-7 Requirements of a Legal System
- Nazi legal system is inconsistent with values
Finnis
-

Basic Values

1987 Consti, Art. II, Sec. 6

-Separation of Church and State shall be inviolable
-Church can meddle, govt cant

-Corp allows individual an alter-ego

-You can allow to pierce corporate veil

Role of Government
Highly intrusive laws
Plays passive at laissez-faire
Lessen crime; build more jails or build visible police force
Improve quality students; fund the school or subsidize famil
Sole

Corporation

Advantages -sole control

-ease of setup
-few rules

-unlimited life
-limited liability
LAW AND ECONOMY
-easy to raise funds
-ease of
ownership
Laissez-Faire
transfer
Free trade
Disadvantages
-limited resources -many regulations
Freedom from state intervention
-owner dies, business
(SEC, DTI, others)
Still regulating
Dies
-Difficulty of
Govt sits back and ensure economy is running smooth
-unlimited liability setting up
-difficult to raise funds
1.
Price Ceiling certain rebates for those who buy, in turn economy is
-difficulty to transfer
affected
partnership
Ex. Gasoline and fuel
2.

Price Floor ex. Minimum Wage

Judge Richard A. Posner (1989)

LAW AND PROPERTY
Economic is the most advanced of the social sciences, and the legal
system
contains many parallelsto and overlaps with
Why property matters?
Economics provde normative standard for evaluating law and
policyrights related to wealth
Property

Karl Renner
-argued that in a capitalist system, property is
transformed from mere title to title to dominate
- The worker only chooses his master, he has no choice
Game Theory
Based on assuming behavior of competitors
as to whether or not he wants to work
Know the outcome of the law
Counterargument to Renner
In leading people to different scenario, what is efficient outcome?
-There is now an effective separation between
Economics has provided a mathematically precise scientificownership
theory to of property and its effective controls
predict the
-Managers, not owners, exercise real power
Effects of legal sanctions on behavior
Make decisions which apply best to you
Ex. Jollibee vs. McDonalds where Jollibee assumes how much that Mcdo Types of Property
1. Tangible
cheeseburgers
A. Property Right
will price next
- Legal Right is separate from the thing which is the
the right
Coarse Theory
- Thus, several legal relationship may arise between
property right and property object
1.
Depends on who law protects
- Ownership is a bundle of rights
2.
Transaction cost
B. Real Property
3.
You have to know outcome of the law
-toForeigners not allowed to own properties in Phil.
Even there is logical and obvious, such option is not the one exactly
Exceptions
be followed
1. Inheritance
Ex.
1.
Consider a factory whose smoke causes damage to the laundry hung2. Used to be Filipino Citizen
3. Thru corporation with a 40% less share
outdoor
PH
relies
on land registration system
by 5 residents
Sin Tax When moral persuasion doesnt work, hit the wallet
Ths law dissuades

2.

$150 to put smoke screen on factory of $50 each or buy dryer for a
total of
$250
2. Intangible Right
A.Intellectual Property Rights
According to proponent
- constitutionally protected
Common law legal rules are efficient
- Phil. Joined WIPO in 1980
Legal rules ought to be efficient
(World Intellectual Property Org.)
Legal Processes select for efficient rules
Individuals respond to legal rules economically
Types:
Common law doctrine promote efficiency

1. Copyright anything one can copy

Pareto-efficiency if no one can be better off w/o making 2.Trademark Mark of the trade, logos
someone worse off
ex. Coca-Cola, Acer, etc.
Sole Proprietorship vs. Corporation

3. Patent innovation, formula

1993 Kantro-Navarro Agreement removing Phil. From blacklist

1995 Special Courts designated to hear cases involving intellectual
property rights
1997 RA 8293, the IP Code of the Philippines was enacted and made
effective on Jan. 1, 1998
Laws governing property
-Pre-nups or ante-nuptial agreements
- ACP or conjugal property with few exceptions
- Legislations re: forests, mining, fishery resources, clean air, solid
waste management, etc.
Recent problems
1. Digital Technology
Videotaping ex. case against Sony allowing piracy
File-sharing
2. Internet
eLibel
eCommerce
Right to privacy
Evidence

LEGAL SYSTEMS OF THE WORLD

-

Ethnic or cultural
Religious

1.
-

Egyptian Legal System

Began in 4000 BC
Monarch was supreme ruler
Oldest Court record found in papyrus in 2500 BC
Earliest recorded treaty is Hittite
Disappeared after Romans defeated Cleopatra at
the Battle of Actium

2.

Mesopotamian Legal System

4000 BC
King was foundation of justice
Code of Hammurabi oldest treaty discovered
Inscribed in 8 ft. pillar of black diorite
Contained 300 sections (earliest known national
code)

Contained crime, family, property and commerce

Oldest negotiable instrument is promissory note
Ended under Greeks I 100 BC

3. Hebrew Legal System

-

Gemura Commentary
D. Medieval Rabbi wrote treaties and
compiled codes thus preserving traditions
of laws
E. Modern Jewish Talmud was critically
studied and translated to various national
languages. Scroll of Law (torah)
F. AD 1600 Nationalism in Europe forced
the Hebrew language to become only a
secondary one for the Jews.

4. Chinese Legal System

Oldest surviving legal system
Never conquered another territory
Have strong clan and family structure
-Confucius Chief justice of
morality and practical politics
- believed in a government
of men, not law
- Good ruler makes happy
people.
- Ta-Tsing-Lu-Li or Code of Ching became law
on 1650 until 1912
- Lu is proper code and never changes
- Li is flexible and adapted to progress
- Annual edicts and judicial decisions
- Commentaries on the Lu

5. Hindu Legal system

Two Branches
1. Buddhism
- enlightenment
- propagated by 30-40 edicts engraved in
stone of King Asoka
- most of the edicts expounded and
promulgated his system of moral law or
dhammma
2. Brahmanism Hinduism, most applied
-nature worship
-Brahma, supreme being
Law book of Manu law book of Brahman Hindu
System
Brahman Rules of Caste determines religious,
social, economic and domestic life
Untouchables Marriage between caste is
forbidden
India had hundreds of principalities
Maharajah was rules of each

Greek Legal System

Nomadic and pastoral agricultural and

Secular system of law
commercial
Polis same as barangay (Polis where politics was
Developed 5 well-defiend stages
derived)
A. Mosaic theocracy and authority ascribed
Polis (8th century BC) was the unification of various
by God. Replaced leader with hierarchy of
communities
courts
Solon (6th century BC) or congressman is a
- Ten Commandments, Genesis, Exodus,
statesman and lawmaker
Leviticus, Numbers, Deuteronomy
Great art of oratory (cross-examination) developed
B. Classic Senate is supreme authority. 71
Socrates was known for the art of crossmembers of SC
examination as mode of extracting truth
C. Talmudic compilation of all reports of
Founded the first college (Plato) named the
recorded cases
Academy
Mishna codified texts
Phillip of Macedon united city and states

Assembly of People (Agora) King consulted this

assembly
Most popular contribution is jury court
King is the head Chief justice and warlord of
tribes

7.

Roman Legal System

9.

Slavic Legal System

D. Last period of 1400 AD

Thor is god of Law
Forsete is god of justice
Law gave great attention to securing justice

11. Japanese Legal System

- 17 Maxims of Shotoku code of political and

social morality
- Considered most lasting and pervading
- military state
- embraced public, sacred, private and customary laws
- Tokugawa Legal system
- What survives today is limited to private law on property,
-Satsumas and Choshus combined and abolished
torts, contacts
Shogunate and resurrected emperor as supreme
- called Civil Law
ruler
Three Periods
- Meiji, or Mutsushito, a boy who became emperor
A.
Archaic (Infancy)
and known as the great Meiji Restoration
Aristocratic controlled by senate
Knowledge of law is limited to sacerdotes publicii
12. Anglo-American Legal System
(royal class)
Twelve Tables
Common Law in England (Angle Land)
B.
Republic (Youth)
Citizenship in Rome was considered membership in - local courts applied customs as rules
-827 AD, Egbert of Wessex became ruler of
privileged class
Angleland
Ius civile Roman to Roman
-William, Duke of Normandy, foundations for
Ius gentium Roman to other nation
customs made
Ius gentium is superior
-King was last resort to justice
Ius gentium invoked to meet cases
-Common law evolved and Kinf created court of
Ius aequum
University of Bologna, Italy started to teach Corpus chancery to provide relief for equity
- System of Equity
Iuris Civilis
1. He who comes to Equity must come with clean
Augustus Caesar gave impt. Opinions to jurists
hands
C.
Classical
2. Equity will not suffer a wrong to be w/o remedy
imperial period became autocratic
3. Delay defeats Equity
Jurist became official advisers and prepared
4. Equity looks to the intent rather than the form
statutes
Justinian Code became Napoleon Code
Equity equality, what sounds right
Corpus Juris had four works:
Common Law (civil law) codified, if no law, no
1. Codex
relief
2. Digesta or Pandectae
3.Institutiones
Common Law in United States
4.Novellae
-13 colonies
-under control of England
8.
Celtic Legal System
Druids ruled in fear, there was bloodshed and legal -1776 independence
-1788 constitution of Federalism
sacrifices
-All derived common law of England except
Druids known as Brehons
Louisiana
Code of Howell The Good (Hyvreithu Huvel Dda)
-John Marshall, CJ from 1801-1835, 1st to proclaim
replaced Justinian Code
doctrine of judicial supremacy
-

13. Catholic Papal Legal System and Canon

Everybody owns everything
Russian, Serb, Bohemian (Czech) and the Polish
Law
Rules established by men who have control of the
-Canon Law affects Catholicism and Mohammedan
-Canon Law is Church Law
power and which are enforced against the recalcitrant by
-Protestant reformation resulted in Canon law no
the lash ,prison and murder
longer recognized as law of Christian life
After centuries of discontent, the March Revolution
Civil Code of Russia is different among any other -Pope Pius X created a commission of cardinals
and scholars
country (Communism)
-Canon Law affects Catholic penalties
- Property is not important
-Canon Law resembles secular law
- Tametsi Marriage Law
10. Germanic Legal System
- Canon Lawyers not usually secular lawyers
- Secular
- Four stages:
A. Prehistoric period of the Vikings
Mohammedan Legal System
B. Long period of Goth migration
Founded by Mohammed in Mecca
C. AD 800 to 1400

Muslims were sole vehicle of the world active in

intellectual and arts
during 800-1200, the dark ages of Christianity in Europe
Dogma is theory while moral is practice
Morals are divided into 4 points:
1.
Alms
2.
Prayer
3.
Pilgrimage to Mecca
4.
Fasting
Sources of Islamic Law:
1.
Koran is word of God written by Mohammed the
prophet
2.
Sayings and conduct of Mohammed as preserved
in traditions

Treaties of jurists