Schools of Thought

San Beda College Alabang Legal Philosophy Atty. John R.
Jacome
IX. LEGAL PHILOSOPHY SCHOOLS OF THOUGHT
1. Teleological or Natural Law Theory

The teleological concept of law is based on the natural law philosophy, the natural law, as was defined by Plato
and Aristotle, is a discipline to which human conduct and relations must conform in order to realize both the
individual and the common good. Accordingly, it is also defined as theuniversal discipline of virtue in the
exercise of their rights, in the performance of their obligations, in the observance of rules, and the preservation of
order and unity. Thus, it is based on the idea thatthere is a very present bond or relationship existing between
positive law and natural law, hence, for the teleologists, the natural law provides for a magnanimous influence in
shaping the concept of law than any other idea. In addition, they consider the natural law as the most potent
force in the development of legal institutions and legal concepts, by which, it is said that, it is upon the precepts
ofthe natural law that the completeness of the legal order can be achieved. For that matter, 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.
2. Legal Positivism
Positivism, which is also refered as "conventionalism", refers to law that is purely a product of human will, not of
some natural or divine will. There is no underlying substance, principle, or content that the law must conform. It
need only be procedurally correct to be valid.
Legal positivism is a philosophy of law that emphasizes the conventional nature of lawthat it is socially
constructed. According to legal positivism, law is synonymous with positive norms; norms made by the legislator
or considered as common law or case law. While natural law is normative jurisprudence for "what the law ought
to be", positivism is "analytical jurisprudence" that studies and recognizes the "what it is". For Positivists, all the
other approaches to law are wrong and confusing "what ought" and "what it is."
Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the
obedience to law. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in
which the laws have been created. This includes the view that judges make new law in deciding cases not falling
clearly under a legal rule. Practicing, deciding or tolerating certain practices of law can each be considered a
way of creating law.
a. David Hume: Legal Positivism

Legal Positivism is the conceptual part of legal empiricism and simply gives an account of what law is.
Hume seems to think of laws as nothing but rules and he explicitly accepts a key consequence of the legal
positivist notion that laws are nothing but rules, the view that the law is not rich enough to provide a best
outcome for all possible legal cases and that, hence, in some cases judges simply make law. But the
observations the legal positivists like to hear are mixed in with a few which they would rather not hear. Thus,
he observes that 'Public utility is the general object of all courts. He constantly describes laws using moral
terminology. Hume should side with the legal positivist claim that there is a sharp distinction between claims
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about what law is and claims about what law ought to be. But Hume always describes the sources of law in
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San Beda College Alabang Legal Philosophy Atty. John R. Jacome
moral terms, in terms of how, whatever the law is, it necessarily promotes utility. Such descriptions are
completely antithetical to legal positivism and suggest that Hume was no legal positivist. Hume celebrated
the ideology adopted by legal positivists as a starting point for their accounts of law, but he did not share
their account of what law is.
b. Jeremy Bentham on the Principles of Morals and Legislation

Jeremy Bentham (17481832) was influenced both by Hobbes' account of human nature and Hume's
account of social utility. He famously held that humans were ruled by two sovereign masters pleasure
and pain. We seek pleasure and the avoidance of pain, they govern us in all we do, in all we say, in all
we think (Bentham PML, 1).
Principles of Morals and Legislation
An Introduction to the Principles of Morals and Legislation,' by Jeremy Bentham, was first printed in 1780
then revised until 1823. Bentham used this text to outline a process of moral decision-making that depends
only on the consequences of actions. Utility, or happiness, is valued. This work was provided moral
justification and guidance for lawmakers who are formulating a penal code (i.e., creating laws to specify
punishment for crimes).
The idea that criminals deserve punishment, retributive justice, is popular among lawmakers and so
Bentham addresses it. Similarly, the role for restorative, distributive and procedural justice can be evaluated
from a utilitarian perspective.
The utilitarian approach that Bentham founded is fiercely opposed by deontologists and virtue ethicists to
this day.
Chapter 4: Value of a Lot of Pleasure or Pain, How to be Measured
In Chapter IV, Bentham introduces a method of calculating the value of pleasures and pains, which has
come to be known as the hedonic calculus. Bentham says that the value of a pleasure or pain, considered
by itself, can be measured according to its intensity, duration, certainty/uncertainty and
propinquity/remoteness. In addition, it is necessary to consider "the tendency of any act by which it is
produced" and, therefore, to take account of the act's fecundity, or the chance it has of being followed by
sensations of the same kind and its purity, or the chance it has of not being followed by sensations of the
opposite kind. Finally, it is necessary to consider the extent, or the number of people affected by the action.
The value of pleasure or pain for an individual for one event is determined by four attributes of the event:
1. intensity,
2. duration,
3. certainty, and
4. propinquity (how immediate or distant the pain or pleasure occurs in time; p. 29).
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When the subject is a group of people, he considers:

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1. intensity,
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2. duration,
3. certainty,
4. propinquity (immediateness or distance in time),
5. fecundity,
6. purity, and
7. extent
c. John Austin: The Province of Jurisprudence

Austins goal was to transform law into a true science. To do this, he believed it was necessary to purge
human law of all moralistic notions and to define key legal concepts in strictly empirical terms. Law,
according to Austin, is a social fact and reflects relations of power and obedience. This twofold view, that (1)
law and morality are separate and (2) that all human-made ("positive") laws can be traced back to human
lawmakers, is known as legal positivism. Drawing heavily on the thought of Jeremy Bentham, Austin was
the first legal thinker to work out a full-blown positivistic theory of law.
Austin argues that laws are rules, which he defines as a type of command. More precisely, laws are general
commands issued by a sovereign to members of an independent political society, and backed up by
credible threats of punishment or other adverse consequences ("sanctions") in the event of non-compliance.
The sovereign in any legal system is that person, or group of persons, habitually obeyed by the bulk of the
population, which does not habitually obey anyone else. A command is a declared wish that something
should be done, issued by a superior, and accompanied by threats in the event of non-compliance. Such
commands give rise to legal duties to obey. Note that all the key concepts in this account (law, sovereign,
command, sanction, duty) are defined in terms of empirically verifiable social facts. No moral judgment,
according to Austin, is ever necessary to determine what the law is though of course morality must be
consulted in determining what the law should be. As a utilitarian, Austin believed that laws should promote
the greatest happiness of society.
d. Hans Kelsen: Pure Theory of Law
Hans Kelsen was an Austrian legal theorist, who worked in Germany until the rise of the Nazi Party. He
published the first edition of The Pure Theory of Law in 1934.
Kelsen began his long career as a legal theorist at the beginning of the 20th century. The traditional legal
philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and
moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other
hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a pure
theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded
characterizes itself as a pure theory of law because it aims at cognition focused on the law alone and this
purity serves as its basic methodological principle
Pure Theory of Law

- most influential theory of law produced during the 20th century. It is, at the least, one of the high
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- The theory is pure because it separates jurisprudence from other disciplines like ethics, politics
and psychology.1
e. Thomas Hobbes: Legalism or Rule by the Law

Legalism, in the Western sense, is an approach to the analysis of legal questions characterized by abstract
logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather
than on the social, economic, or political context. Legalism has occurred both in civil and common law
traditions.
In its narrower versions, legalism may endorse the notion that the pre-existing body of authoritative legal
materials already contains a uniquely pre-determined right answer to any legal problem that may arise.
Legalism typically also claims that the task of the judge is to ascertain the answer to a legal question by an
essentially mechanical process.
On 1651, Thomas Hobbes wrote and published a book entitled Leviathan The work concerns the structure
of society and legitimate government, and is regarded as one of the earliest and most influential examples
of social contract theory.
Leviathan argues for a social contract and rule by an absolute sovereign. Hobbes wrote that civil war and
the brute situation of a state of nature could only be avoided by strong, undivided government. It later on
became one of the centerpieces of influential legalism.
f. Herbert Hart: Rule of Recognition

In Hart's view, the rule of recognition arises out of a convention among officials whereby they accept the
rule's criteria as standards that empower and govern their actions as officials.[1] The rule is cognizable from
the social practices of officials acknowledging the rule as a legitimate standard of behavior, exerting social
pressure on one another to conform to it, and generally satisfying the rule's requirements. To this end, as
explained by Hart, the rule has three functions:
1. To establish a test for valid law in the applicable legal system,

2. To confer validity to everything else in the applicable legal system, and
3. To unify the laws in the applicable legal system.
The validity of a legal system is independent from its efficacy. A completely ineffective rule may be a valid
one - as long as it emanates from the rule of recognition. But to be a valid rule, the legal system of which the
rule is a component must, as a whole, be effective. According to Hart, any rule that complies with the rule of
recognition is a valid legal rule. For example, if the rule of recognition were "what Professor X says is law",
then any rule that Professor X spoke would be a valid legal rule.
It follows that the rule of recognition is but a factual acknowledgement of what is indeed law; as per the
classic illustration of a bill passed by the legislative authority and assented to by a Head-of-State. The fact
that the bill has been made law in accordance with proper parliamentary procedure shall, in accordance with
the Rule of Recognition, render it valid law. Again, this is primarily based on the fact of its existence in such
manner.
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Sources: https://plato.stanford.edu/entries/lawphil-theory/
https://hughmccarthylawscienceasc.wordpress.com/2014/12/08/test-post/
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https://en.wikipedia.org/wiki/Pure_Theory_of_Law
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g. Confucianism: Political Theory and Rectification of Names

If the people be led by laws, and uniformity among them be sought by punishments, they will try to escape
punishment and have no sense of shame. If they are led by virtue, and uniformity sought among them
through the practice of ritual propriety, they will possess a sense of shame and come to you of their own
accord. Confucian political philosophy centers in his belief that a ruler should learn self-discipline, should
govern his subjects by his own example, himself as a role model, and should treat them with love and
concern. Confucius advocates more legalistic methods because it was such methods that won over the the
ruling elite. Thus Confucius' warning about the ill consequences of promulgating law codes should not be
interpreted as an attempt to prevent their adoption but instead as his lament that his ideas about the moral
suasion of the ruler were not proving popular. However, Confucius perception that the political institutions of
his day eventually collapsed because of the fact that those wielded power as well as those who occupied
subordinate positions did so by making claim to titles for which were not worthy.
Confucius' analysis of the lack of connection between actualities and their names and the need to correct
such circumstances is often referred to as Confucius' theory of zhengming. In that passage Confucius is
taking aim at the illegitimate ruler of Wei who was, in Confucius' view, improperly using the title successor,
a title that belonged to his father the rightful ruler of Wei who had been forced into exile Xunzi composed an
entire essay entitled Zhengming. But for Xunzi the term referred to the proper use of language and how one
should go about inventing new terms that were suitable to the age. For Confucius, zhengming does not
seem to refer to the rectification of names (this is the way the term is most often translated by scholars of
the Analects), but instead to rectifying the behavior of people and the social reality so that they correspond
to the language with which people identify themselves and describe their roles in society.
3. The Interpretivist or Constructivist Theory

A constructivist argument claims that people do one thing and not another due to presence of certain 'social
constructs': ideas, beliefs, norms, identies, or some other interpretative filter through which people perceive the
world.
The basic notion of constructivism originated along with the discipline of sociology in the late 19th century, most
clearly in the work of Durkheim. He argued that human societies are held together by the social facts of culture, not
just objectively rational responses to natural or material facts and that particular societies creatively invent different
socially constructed identities and beliefs. Probably the next most famous father of constructivist thinking is Max
Weber who attempted to synthesized a Durkheim style emphasis on ideas and culture with more Marx-style attention
to the material landscape-- but with a priority for the former.
Weber saw the two components, which are explanation and understanding, as somewhat separate- suggesting that
we might be able to predict and explain someone's actions without really understanding how she was thinking but
argued that a valid causal interpretation of action always covers both. Explanation is concerned with an argument's
adequacy on causal level: how well it shows that someone's actions followed predictability from certain conditions.
On the other hand, understanding concerns an argument's adequacy on the level of meaning: how well it captures
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how the actor interpreted what she was doing. Another common argument is the causal- constitutive argument by
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Wendt which asks 'why' questions about how one set of conditions dynamically produced another. Culture, norms
ideas and identities define the properties of the world we perceive.
In conclusion, constructivism is a broad family of arguments built on the notion that people only arrive at certain
actions due to their adoption of certain social constructs to interpret their world. It provides a distinct substantive view
of how and why the political world forms and hands together.
a. Ronald Dworkin: Interpretivist Approach and Best Fit Theory

Key to Ronald Dworkins Constructive Interpretation of legal practice is the conception of Law as Integrity. Law
as integrity holds a vision for judges which states that as far as possible judges should identify legal rights and
duties on the assumption that they were all created by the community as an entity, and that they express the
communitys conception of justice and fairness.
According to law as integrity, proposition of law are true if they figure in or follow from the principles of justice,
fairness and procedural due process, which provide the best constructive interpretation of the communitys
legal practice.
Law as integrity states that the law must speak with one voice, so judges must assume that the law is
structured on coherent principles about justice, fairness and procedural due process, and that in all fresh
cases which comes before them, judges must enforce these so as to make each persons situation fair and
just by the same standard that is to say, treat everyone equally.
Integrity is both a legislative and an adjudicative principle. Legislative principle requires law makers to try to
make the laws morally coherent. Lawmakers are required to ask the assumption that integrity is a distinct
ideals of politics, for politics, and honors politics. If it fits these dimensions, then adjudicative principles is ready
to begin.
4. Realist or Pragmatist Theory
Pragmatist Theory considers the function of a thought as to predict, solve problems and action; an instrument that is
with a practical use that should be tested in real human experiences. Pragmatist Theory seeks its practical
application and rejects the idea that the function of thought is merely to describe, represent, or mirror reality.
a. Justice Oliver Weldell Holmes: The Path of the Law

Oliver Wendell Holmes Jr. (March 8, 1841 March 6, 1935) was an American jurist who served as an Associate
Justice of the Supreme Court of the United States from 1902 to 1932, and as Acting Chief Justice of the United
States JanuaryFebruary 1930. Noted for his long service, his concise and pithy opinions and his deference to
the decisions of elected legislatures, he is one of the most widely cited United States Supreme Court justices in
history, particularly for his "clear and present danger" opinion for a unanimous Court in the 1919 case of
Schenck v. United States, and is one of the most influential American common law judges, honored during his
lifetime in Great Britain as well as the United States.
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"The life of the law has not been logic: it has been experience. ... The substance of the law at any given time
pretty nearly corresponds, so far as it goes, with what is then understood to be convenient." In effect, Holmes
argued, law and its interpretation shift with the shifting demands of history and adjust to what the majority of
people believe is necessary and fair. This novel theory challenged prevailing beliefs that law was a set of rules
applied by formal logic.
5. Critical Legal Theory

Critical legal studies (CLS) is a theory that challenges and overturns accepted norms and standards in legal
theory and practice. Proponents of this theory believe that logic and structure attributed to the law grow out of
the power relationships of the society. The law exists to support the interests of the party or class that forms it
and is merely a collection of beliefs and prejudices that legitimize the injustices of society. The wealthy and the
powerful use the law as an instrument for oppression in order to maintain their place in hierarchy. The basic idea
of CLS is that the law is politics and it is not neutral or value free. Many in the CLS movement want to overturn
the hierarchical structures of domination in the modern society and many of them have focused on the law as a
tool in achieving this goal. CLS is also a membership organization that seeks to advance its own cause and that
of its members.
CLS was officially started in 1977 at the conference at the University of Wisconsin-Madison, but its roots extend
back to 1960 when many of its founding members participated in social activism surrounding the Civil Rights
movement and the Vietnam War. Many CLS scholars entered law school in those years and began to apply the
ideas, theories, and philosophies of post modernity (intellectual movements of the last half of the twentieth
century) to the study of law. They borrowed from such diverse fields as social theory, political philosophy,
economics, and literary theory. Since then CLS has steadily grown in influence and permanently changed the
landscape of legal theory. Among noted CLS theorists are Roberto Mangabeira Unger, Robert W. Gordon,
Morton J. Horwitz, Duncan Kennedy, and Katharine A. MacKinnon.
Although CLS has been largely a U.S. movement, it was influenced to a great extent by European philosophers,
such as nineteenth-century German social theorists Karl Marx, Friedrich Engels, and Max Weber; Max
Horkheimer and Herbert Marcuse of the Frankfurt school of German social philosophy; the Italian marxist
Antonio Gramsci; and poststructuralist French thinkers Michel Foucault and Jacques Derrida, representing
respectively the fields of history and literary theory. CLS has borrowed heavily from Legal Realism, the school of
legal thought that flourished in the 1920s and 1930s. Like CLS scholars, legal realists rebelled against accepted
legal theories of the day and urged more attention to the social context of the law.
CLS includes several subgroups with fundamentally different, even contradictory, views: feminist legal theory,
which examines the role of gender in the law; critical race theory (CRT), which is concerned with the role of race
in the law; postmodernism, a critique of the law influenced by developments in literary theory; and a subcategory
that emphasizes political economy and the economic context of legal decisions and issues.
a. Roberto Unger: Hegemony, Deconstruction, and Hermeneutics of Suspicion
6. The Historical Approach

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In general, historical materialist historiography is a school of historiography influenced by Marxism. The chief
tenets of Marxist historiography are the centrality of social class and economic constraints in determining historical
outcomes.
Marxist historiography has made contributions to the history of the working class, oppressed nationalities, and the
methodology of history from below. The chief problematic aspect of Marxist historiography has been an argument on
the nature of history as determined or dialectical; this can also be stated as the relative importance of subjective and
objective factors in creating outcomes.
Marxist history is generally deterministic, in that it posits a direction of history, towards an end state of history as
classless human society. Marxist historiography, that is, the writing of Marxist history in line with the given
historiographical principles, is generally seen as a tool. Its aim is to bring those oppressed by history to self-
consciousness, and to arm them with tactics and strategies from history: it is both a historical and a liberatory project.
Historians who use Marxist methodology, but disagree with the mainstream of Marxism, often describe themselves
as marxist historians (with a lowercase M). Methods from Marxist historiography, such as class analysis, can be
divorced from the liberatory intent of Marxist historiography; such practitioners often refer to their work as marxian or
Marxian.
a. Friedrich Karl von Savigny: The Volgeist

Friedrich Carl von Savigny (1779-1861) applied the Volkgeist theory, or the spirit of the people. Savigny
believed that law had its own history and followed its own stages of growth. Law is first developed by custom
and popular acceptance, next by judicial decisions and not by the arbitrary will of the law-giver.
The theory posits that law is the unique creation of a race or group of people. Like language or values, it is
the result of collective human action and reason over generations, not the result of human design. Language
and law were never consciously invented at a specific moment in time, rather, they represented the slow
accumulations of the people. The Volkgeist is best understood through careful examination of historical data.
This is why Savigny is considered a pillar of the historical school of jurisprudence.
b. Sir Henry Sumner Maine: Legal History Theory

Savignys method of the historical school was followed in England by Sir Henry Maine, Lord Bryce & many
others who made studies of various legal systems on historical lines
Maine inaugurated both comparative & anthropological approaches to the study of law. Unlike
Savigny, Maine favoured legislation & codification, he did not share Savignys mystique of the Volksgeist &
he used the study of legal history mostly to understand the past & not to determine the future course &
standards.
Maine classified the development of law in the following stages :
(i) In the beginning, law was made by the commands of the ruler believed to be acting under
the divine inspiration, e.g., Themistes of ancient Greek. When a king decided a dispute by a sentence, the
judgment was assumed to be the result of direct inspiration. The king was not the maker of law, but merely
an executor of judgments of the God.
(ii) In the second stage, the commands crystallise into customary law. Customs seem to have
succeeded to the prerogatives of the king. Hwr, they dont appear to hv pretended to direct inspiration for
each sentence & the progress of thought no longer permits the solution of a particular dispute to be
explained by supposing an extrahuman interposition.
(iii) In the third stage, the knowledge & administration of customs goes into the hands of a
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minority, due to the weakening of the power of the original law-makers, usually of a religious nature, e.g.
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priests. The ruler is superseded by a minority who obtain control over the law.
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(iv) In the fourth stage, the law is promulgated in the form of a code.
c. G .W.F. Hegel: Dialectic Idealism and the Philosophy of Law

Hegel distinguished between nature and positive law. He proceeds to distinguish between philosophy of
law concerning rationality of law and the study of law itself. Legal philosophy being rational, should
conceive law in a rational way. Philosophy is concerned with reality only as long as it is rational. Hegel
hence states that That which is rational is real and that which is real is rational.
Hegel sought to explain history on an abstract evolutionary plane1. Hegel saw it unfolding as a process of
action and reaction between opposites, i.e.; dialectics.
The Dialectic Interpretation
The dialectic interpretation method is what Hegel uses to explain his philosophy. The dialectic
interpretation involves thesis, antithesis and synthesis.
An idea or a proposition is a thesis. Any concept against this idea or thesis is the antithesis. The
unification of the thesis and the antithesis under one idea or concept is the synthesis of the both.
For example;
Consider a half open door. The door is half open, is a statement which can considered thesis. The door
is half closed, is a statement which can be considered as the antithesis of the given statement. The
synthesis of the both can be the statement The door is 45 from the closed position.
This interpretation is what Hegel uses to attain his ideal. He starts off with a concept, synthesises it with
its antithesis. This obtained synthesis becomes the next thesis and this process goes on till it reaches its
objective.
Hegel considers an idea to be the thesis. Idea outside itself, that is, nature, is its antithesis. The synthesis
is the spirit, which can be considered to be the volksgeist of Savigny. Spirit is of two types, subjective
spirit, which deals with thought and consciousness and objective spirit, which deals with legal and social
institutions. The synthesis of these both is the absolute spirit.
Law comes into the category of objective spirit. Legal and social institutions exist to realize freedom. They
exist so as to give freedom to the society. Freedom and will are complementary. The idea of freedom has
a three-fold tier of operation.
First is the freedom of the individual in relation to himself, which brings about the concept of property. If a
person imposes his will on a thing and the thing becomes his property, it is his will what to do or what not
to do with that thing. No one else can interfere in this matter.
Second is the perception of freedom with others, in conformity with common will of all, which brings about
the idea of contract. When two or more people have their will imposed on a thing, such a thing belongs to
all of them. No one person can use the thing according to his individual will with impunity.
The third is the concept of wrong doing. When the individual freedom opposes the common will, this
causes wrong doing.
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This brings about the concept of morality. Morality hence restricts freedom and hence is its antithesis. The
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synthesis between the two is social ethics. Social ethics starts at the level of family. When a member of a
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family becomes independent from the said family, he is the part of the society. So with family as the thesis
and society as the antithesis, the synthesis turns out as the state.
In the state, Hegel found the highest achievement of human endeavour. To be a member of the state
was, to him, the supreme objective. The individual is the product of his culture and age, which are realised
only through the state.
Law and state are thus concrete manifestations of the national spirit, which together with others are in turn
a manifestation of a world spirit.
Flowchart
Conclusion
Hegels philosophy starts with an objective in mind and he succeeds in reaching that objective through the
method of dialectic interpretation.
7. The Functional or Sociological Approach

The functionalist perspective, also called functionalism, is one of the major theoretical perspectives in sociology. As
such, it is a theory that focuses on the macro-level of social structure, rather than the micro-level of everyday life.
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Functionalism interprets each part of society in terms of how it contributes to the stability of the whole society. Society
is more than the sum of its parts; rather, each part of society is functional for the stability of the whole.
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According to Durkheim, all elements of society, including morality and religion, are products of history. In particular,
Durkheim viewed his sociology as the science of the genesis and functioning of institutions, with institutions being all
of the beliefs and modes of conduct instituted by the collectivity. A fundamental element of this science is the
sociological method, which Durkheim created specifically for this purpose.
a. William James: Law as a means to satisfy needs
One of the most successfully cultivated branches of philosophy in our time is what is called inductive logic, the
study of the conditions under which our sciences have evolved. Writers on this subject have begun to show a
singular unanimity as to what the laws of nature and elements of fact mean, when formulated by
mathematicians, physicists and chemists. When the first mathematical, logical, and natural uniformities, the
first laws, were discovered, men were so carried away by the clearness, beauty and simplification that
resulted, that they believed themselves to have deciphered authentically the eternal thoughts of the Almighty.
His mind also thundered and reverberated in syllogisms. He also thought in conic sections, squares and roots
and ratios, and geometrized like Euclid. He made Kepler's laws for the planets to follow; he made velocity
increase proportionally to the time in falling bodies; he made the law of the sines for light to obey when
refracted; he established the classes, orders, families and genera of plants and animals, and fixed the
distances between them. He thought the archetypes of all things, and devised their variations; and when we
rediscover any one of these his wondrous institutions, we seize his mind in its very literal intention.
But as the sciences have developed farther, the notion has gained ground that most, perhaps all, of our laws
are only approximations. The laws themselves, moreover, have grown so numerous that there is no counting
them; and so many rival ormulations are proposed in all the branches of science that investigators have
become accustomed to the notion that no theory is absolutely a transcript of reality, but that any one of them
may from some point of view be useful. Their great use is to summarize old facts and to lead to new ones.
They are only a manmade language, a conceptual shorthand, as some one calls them, in which we write our
reports of nature; and languages, as is well known, tolerate much choice of expression and many dialects.
b. EmileDurkeim: Theory of Legal Change
Durkheim looks at law as a tool for integration. This is particularly true in highly developed societies where
culture is marked by a high level of individualism and plurality. For Durkheim, as society progresses from simple
to complex, the role of law changes. He calls this theory the theory of legal change from repressive to
restitutive law. The former are the laws of a small, close-knit, highly religious and traditional societies where a
small infraction of the rules is met with severe repercussions. In early 19th century, the United States aiding a
runaway slave is punishable by death; earlier still, adulterers were made to wear a long necklace bearing the
letter A, for adultery to stigmatize violators. This is the repressive role of law where harsh punishments are
routinely used to evoke fear, and consequently, obedience form members. Cults had been known to brainwash
members into thinking that disobedience to the groups law amounts to eternal damnation or else banishment
from the safety and comfort of the group.
As society progresses and becomes multi-cultural and highly technological whose members are highly
educated yet individualistic, laws shift to the restitutive role. Restitutive laws allow violators to make amends for
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damage, and reintegration to the mainstream. Violators are not stigmatized for life but are rather recycled back
to society. Laws in these modern societies secure group order as well as allow pluralism and varieties of
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c. Charles Louis Baron de Montesquie: Adapting law to shifting conditions

CHARLES BARON DE MONTESQUIEU (1689- 1755)
Who said that the law must adapt to shifting social conditions ( pg. 40 of Bernardo book.)
Real Name: Charles-Louis de Secondat

Born in La Brede, France.Received a law degree from University of Boreaux. He inherited the title Baron de
Le Brede et de Montesquieu from his uncle. He presided over theParliaments criminal division in Le Brede.
The Spirit of the Laws is placed on the Index of Forbidden books in 1751. He died of fever in Paris.
2 most notable works:
1. Persian Letters ( Published in 1721)
-a novel consisting of letters sent to and from 2 fictional Persians, Usbek and Rica, who set out for Europe
and remained there. Descriptions/ distinctions of Europe and Persia.
2. The Spirit of the Laws (1748)
A. LAWS - Laws should be adopted to the people for whom they are framed..., to the nature and principle of
each government, ... to the climate of each country, to the quality of its soil, to its situation and extent, to
the principal occupation of the natives, whether husbandmen, huntsmen or shepherds: they should have
relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their
inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each
other, as also to their origin, to the intent of the legislator, and to the order of things on which they are
established; in all of which different lights they ought to be considered"
B. GOVERNMENT- believed in 3 forms of republican govt: 1. Democratic, 2. Aristocratic, 3. Despotic.

-Democracy- the political virtue is the love of law and of country including democratic institution; constant
preference to public interest than private interest; limit ambition and sole happiness for greater service to the
country which makes it ardous and painful. To do this, citizens must be educated.
2 things that corrupt democracy:
1. Spirit of extreme equality- when people want to be equal in all respect.
2. Spirit of inequality- people advance their private interest more than state interest
-Aristocracy- the political virtue is moderation so as not to oppress the people they govern and
acquire excessive power. Laws should instill and protect moderation. To practice moderation: 1. Nobility must
prevented from abusing the people; 2. Laws should disguise as much as possible the difference between
nobility and people; and 3. Laws should try to ensure equality among the nobles to prevent corruption.
-Monarchy- the principal virtue is honor.there is one monarch but to check his power, there must be
an independent judiciary and subordinate institutions such as nobility; The laws of the monarchy shall
preserve their powers to prevent despotism (a corrupt and dangerous govt, no law and only by will of the
monarch). Laws should encourage proliferation of distinction and of rewards for honorable conduct and
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luxuries.
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C. LIBERTY- he is a proponent of liberalism. Liberty is not the freedom to do whatever we want: if we have the
freedom to harm others, for instance, others will also have the freedom to harm us, and we will have no
confidence in our own safety. Liberty involves living under laws that protect us from harm while leaving us
free to do as much as possible, and that enable us to feel the greatest possible confidence that if we obey
those laws, the power of the state will not be directed against us.
To provide citizens with the greatest possible liberty, govt must have ff features:
First. There must be checks to power ie. separation of powers
Second. Law should only concern threat to public order and security, to protect us from harm while leaving us
free to do many things.
Third. Laws should make it easy for persons to prove his innocence.
D. CLIMATE AND GEOGRAPHY

-Montequieu believes that climate and geography affect the temperaments and customs of a country's
inhabitants. Law should take these effects into account, accommodate when necessary, and counteract their
effects. If a person moves from one place to another, his temperament will alter accordingly.
COLD CLIMATE- constrict our bodies. So people become vigorous and bold, phlegmatic, frank, and not given
to suspicion or cunning, insensitive to pleasure o pain.
WARM CLIMATE- people have stronger but less durable sensations. They are fearful, amorous, susceptible to
temptations of pleasure and pain, less capable of decision action, can make slavery comprehensible
TEMPERATE CLIMATE- makes manner of people inconstant
E. COMMERCE
- Conquering land and resources is disadvantageous. Commerce is the only one without overwhelming
drawbacks. Commerce cannot be controlled by monarch or government.
- "the spirit of commerce is naturally attended with that of frugality, economy, moderation, labor, prudence,
tranquility, order, and rule. "In addition, it "is a cure for the most destructive prejudices", improves manners,
and leads to peace among nations.
- AIM OF COMMERCE: 1.In monarchy- to supply luxury; there should be no banks 2. In republic- to gain little,
but gain incessantly; there should be banks; 3. In despotism- no commerce because there is no security of
property.
- Commerce benefits all countries except those nothing except land and what it produces. So trade with other
countries is useful, but trade will not result in the development of an impoverished country where labor is
oppressed and the traders own the land.
F. RELIGION
- He mentioned God as creating nature and Natural laws but considers religion only in relation to the good
they produce in civil society
- He regards different religions as appropriate to different environments and forms of government.
Protestantism is most suitable to republics, Catholicism to monarchies, and Islam to despotisms; the Islamic
prohibition on eating pork is appropriate to Arabia, where hogs are scarce and contribute to disease, while in
India, where cattle are badly needed but do not thrive, a prohibition on eating beef is suitable.
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-But Montesquieu, it is generally a mistake to base civil law on religious principle, and civil law is not
appropriate tool to enforce religious norms. Because religion aims for the perfection of individual, while civil
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If several religions have gained adherents in a country, those religions should all be tolerated, not only by the
state but by its citizens. The laws should "require from the several religions, not only that they shall not embroil
the state, but that they shall not raise disturbances among themselves, ie. Not force others to convert" 2
d. R. Von Jhering: Law as a method of ordering society
Jhering was German jurist. He has been described as the Father of Modern Sociological Jurisprudence. He
rejected the Analytical & Historical jurisprudence as jurisprudence of conceptions. According to him, law is an
instrument for serving the needs of individuals of society. Hence, the law should be studied in terms of
purposes or interests which it sub-serves. He observed, The stone does not fall in order to fall, but it must fall
because its support is taken away. Similarly, the man who acts does so not because of anything, but in order
to attain something. As there can be no motion of the stone without a cause, so can there be no movement of
the will without purpose.
According to him, human will is directed towards the furtherance of individual purposes. In realisation of
individual purposes, there is bound to be a conflict b/w social interests& individuals selfish interests. Jhering
tries to reconcile the individual interest with that of the society. So, law is only an instrument for serving the
needs of the society ... its purposes & interests. The success of the legal process depends on achieving
proper balance b/w social & individual interests. It is through two impulses coercion & reward, the society
compels individuals to subordinate selfish individual interests to social purposes & general interests. The
natural impulse of duty & love also make man to sub-serve social ends. Therefore, Jhering views law as an
instrument of social control balancing of individual interest with that of the society.
The necessity for coercion may seem to be in conflict with the common sense idea that good laws should be
obeyed without compulsion, and that compulsion is the very opposite of law. If all laws must be coercive, why
bother to make laws on the Kantian model, laws that embody principles people would willingly follow laws in
their interest? This is the fine point of the difference between tough-minded republicanism and even the most
genteel imperial visions. The answer is the self-discipline of force. It is not that all moral rules must be backed
by coercion, but that all socially salient coercion must be backed by morally acceptable rules. To be
expressed, the coercive power must be stated as a "norm," which regularizes and disciplines it. You cannot
respond to a threat without knowing when it will apply. Moreover, self interest assures that the coercive
power will be given this form. A person with the means to exercise coercive force willfully or capriciously
would not find it in his own interest to do so because in posing a danger to everyone else he ultimately also
poses it to himself. In this sense while despotism does not provide "the assured order of civil society," it still
contains "the germs of law"
This is the foundation of Jhering's system.
On it, he builds a view of the life of the human species as the system of human purposes and a detailed social
and juridical analysis of interactions. It is, he says, a social mechanics, an exposition of the "levers" by which
the parts of the social machine are interconnected, the levers by which we move each other to our purposes
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2
Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/montesquieu/#1
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and are moved in turn. Purpose, ultimately, comes to motivate the entire movement of culture and to integrate
all human activity into a single world society, and no act is insignificant in the process.
e. Roscoe Pound: The scope and purpose of socio-logical jurisprudence

During the 19th century the concept of police state began to wither away and the concept of welfare state took
precedence due to rapid increase in population, social revolutions leading to social unsettlement. Analytical
positivism in such matters failed to meet the demands of social stability giving way to sociological approaches
of law. Sociological jurisprudence a part of sociology (the science of social order and progress) predicts and
prescribes social behaviour, led to the distinction between a legal sociologist and sociological jurist. In the said
context Roscoe Pound's theory of sociological jurisprudence, firstly talks of a factual study, secondly social
investigations, thirdly just and reasonable solutions and lastly the achievement of the purposes of various
laws. He likened the task of lawyer to that of an engineer - to build an efficient structure of society with the
satisfaction of the maximum of once with the minimum of friction and waste. It speaks about balancing of
conflicting interests or defactor claims wherein the interests are categorised into individual public and social.
The theory gives predominance to social interests as compared to public and individual interests.
f. Max Weber: Typology of Law

Weber classified legal systems into distinct categories depending on how law is both made and found. Law
may be found and made either irrationally or rationally. Law can be either (1) formal irrationality (2) substantive
irrationality, or (3) substantive rationality (4) logically formal rationality. Finally, formally rational law can be
"formal" either in an "extrinsic" or "logical" sense.
Formal Irrationality, legal decision making is associated with prophetic decisions or revelation. Decisions are
announced without any reference to some general standard or even to the concerns of the parties to the
dispute. The criterion of decision making is intrinsic to the legal system but unknowable; there is no way the
observer can predict the decision, or understand why it was reached. Substantive Irrationality, decisions apply
observable criteria but these are always based on concrete ethical and practical considerations of the specific
cases. Substantive Rationality, decision making employs a set of general policies or criteria, but these are of
some body of thought extrinsic to the legal system religion and political ideology are examples of such
extrinsic systems. Logically Formal Rationality embodies that legal thought is rational to the extent that it relies
on some justification that transcends the particular case, and is based on existing, unambiguous rules; formal
to the extent that the criteria of decision are intrinsic to the legal system; and logical to the extent that rules or
principles are consciously constructed by specialized modes of legal thought which rely on a highly logical
systemization, and to the extent that decisions of specific cases are reached by processes of specialized
deductive logic proceeding from previously established rules or principles.
g. Roberto Mangeira Unger: Cultural Context Theory

At the core of his philosophy is a view of humanity as greater than the contexts in which it is placed. He sees
each individual possessed of the capability to rise to a greater life. At the root of his social thought is the
conviction that the world is made and imagined. His work begins from the premise that no natural social,
political, or economic arrangements underlie individual or social activity. Property rights, liberal democracy,
wage labor for Unger, these are all historical artifacts that have no necessary relation to the goals of free
and prosperous human activity. For Unger, the market, the state, and human social organization should not
be set in predetermined institutional arrangements, but need to be left open to experimentation and revision
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according to what works for the project of individual and collective empowerment. Doing so, he holds, will
enable human liberation.
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Unger's social theory is premised on the idea of classical social theory that society is an artifact and can be
created and recreated.Whereas previous thinkers such as Hegel or Marx backslid at some point and held
onto the notion that there was a necessary institutional or historical social development, Unger, in the words
of one critic, seeks to "take the idea to the hilt and produce a theory of emancipation that will escape the
limitations of liberal and Marxist theories." That limitation is the search for an ideal structure of society that
can be foreseen and centrally planned; whereas the emancipation leads to societies with greater institutional
flexibility and variation.
Unger's ideas developed in a context where young intellectuals and radicals attempted to reconcile the
conventional theories of society and law being taught in university classrooms with the reality of social protest
and revolution of the 1960s and 70s. Disillusioned with Marxism, they turned to thinkers like Levi-Strauss,
Gramsci, Habermas, and Foucault in attempt to situate understandings of law and society as a benign
science of technocratic policy within a broader system of beliefs that legitimized the prevailing social order.
Unlike Habermas, however, who formulates procedures for attaining rational consensus, Unger locates
resolution in institutions and their arrangements that remain perpetually open to revision and reconstruction.
And unlike Foucault, who reduces everything to a nihilistic struggle for power and a perpetual political
appropriation of social resistance, Unger takes this as an opportunity to enable institutions and social
conditions that will unleash human creativity.
h. Eugen Ehrlich: The Living Law
The point Ehrlich sought to make was that the "living law" which regulates social life may be quite different from
the norms for decision applied by courts, and may sometimes attract far greater cultural authority which lawyers
cannot safely ignore. Norms for decision regulate only those disputes that are brought before a judicial or other
tribunal. Living law is a framework for the routine structuring of social relationships. Its source is in the many
different kinds of social associations in which people co-exist. Its essence is not dispute and litigation, but peace
and co-operation. What counts as law depends on what kind of authority exists to give it legal significance
among those it is supposed to regulate.
i. Talcott Parsons: Law as integrativist mechanism of social control
Talcott Parsons was an American sociologist of the classical tradition, best known for his social action theory
and structural functionalism. Parsons is considered one of the most influential figures in the development of
sociology in the 20th century. He was also concerned with social order, but argued that order and stability in a
society are the result of the influence of certain values in society, rather than in structure such as the economic
system.
For example, he believed that stable, supportive families are the key to successful socialization. Parsons also
contributed to our understanding of medicine, arguing that medicine is our strategy to keep members of a society
healthy, and illness is dysfunctional because it undermines people's ability to perform their roles in a society.
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Finally, he argued that U.S. society needs to find roles for the elderly. 3
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Sources: http://study.com/academy/lesson/talcott-parsons-theories-contributions-to-sociology.html
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j. John Rawls: The Sociological School
Sociological school of jurisprudence has emerged as a result of synthesis of various juristic thought. The
exponent of this school considered law as a social phenomenon. They are chiefly concerned with the
relationship of law to other contemporary social institutions. They emphasize that the jurist should focus their
attention on social purposes and interest served by law rather than on individuals and their rights. According to
the school the essential characteristic of law should be to represent common interaction of men in social
groups, whether past or present ancient or modern.
The main concern of sociological jurists is to study the effect of law and society on each other. They treat law
as an instrument of social progress. The relation between positive law and ideals of justice also affects the
sociology of law.
John Rawls in 1971 published the book Magnum Opus: A theory of Justice was said at the time of its
publication to be "the most important work in moral philosophy since the end of World War II and is now
regarded as "one of the primary texts in political philosophy". His work in political philosophy, dubbed
Rawlsianism, takes as its starting point the argument that "the most reasonable principles of justice are those
everyone would accept and agree to from a fair position. Rawls also wrote the philosophical concept of Veil of
Ignorance which it is used to determine the morality of political issues proposed in 1971
8. The Utilitarian Approach

a. Jeremy Bentham: Felicific Calculus
Jeremy Bentham (17481832) was influenced both by Hobbes' account of human nature and Hume's account of
social utility. He famously held that humans were ruled by two sovereign masters pleasure and pain. We seek
pleasure and the avoidance of pain, they govern us in all we do, in all we say, in all we think (Bentham
PML, 1).
Principles of Morals and Legislation
An Introduction to the Principles of Morals and Legislation,' by Jeremy Bentham, was first printed in 1780 then
revised until 1823. Bentham used this text to outline a process of moral decision-making that depends only on
the consequences of actions. Utility, or happiness, is valued. This work was provided moral justification and
guidance for lawmakers who are formulating a penal code (i.e., creating laws to specify punishment for crimes).
The idea that criminals deserve punishment, retributive justice, is popular among lawmakers and so Bentham
addresses it. Similarly, the role for restorative, distributive and procedural justice can be evaluated from a
utilitarian perspective.
The utilitarian approach that Bentham founded is fiercely opposed by deontologists and virtue ethicists to this
day.
Chapter 4: Value of a Lot of Pleasure or Pain, How to be Measured

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https://www.thoughtco.com/talcott-parsons-3026498
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In Chapter IV, Bentham introduces a method of calculating the value of pleasures and pains, which has come to
be known as the hedonic calculus. Bentham says that the value of a pleasure or pain, considered by itself, can
be measured according to its intensity, duration, certainty/uncertainty and propinquity/remoteness. In addition, it
is necessary to consider "the tendency of any act by which it is produced" and, therefore, to take account of the
act's fecundity, or the chance it has of being followed by sensations of the same kind and its purity, or the
chance it has of not being followed by sensations of the opposite kind. Finally, it is necessary to consider the
extent, or the number of people affected by the action.
The value of pleasure or pain for an individual for one event is determined by four attributes of the event:
1. intensity,
2. duration,
3. certainty, and
4. propinquity (how immediate or distant the pain or pleasure occurs in time; p. 29).
When the subject is a group of people, he considers:

1. intensity,
2. duration,
3. certainty,
4. propinquity (immediateness or distance in time),
5. fecundity,
6. purity, and
7. extent
b. John Stuart Mill: Utilitarianism, Law and Authority

John Stuart Mill defines utilitarianism as a theory based on the principle that "actions are right in proportion as
they tend to promote happiness, wrong as they tend to produce the reverse of happiness." Mill defines
happiness as pleasure and the absence of pain. In the "Utilitarianism", he explains that the pleasures of a swine
are not the pleasures of man. Humans are not supposed to be lower animals subject to sensual indulgence, but
to pursue a happiness that satisfies the intellect. Utility must be grounded on permanent and progressive
interests and virtues of man.
He argues that pleasure can differ in quality and quantity, and that pleasures that are rooted in one's higher
faculties should be weighted more heavily than baser pleasures. Furthermore, Mill argues that people's
achievement of goals and ends, such as virtuous living, should be counted as part of their happiness.
Mill argues that utilitarianism coincides with "natural" sentiments that originate from humans' social nature.
Therefore, if society were to embrace utilitarianism as an ethic, people would naturally internalize these
standards as morally binding. Mill argues that happiness is the sole basis of morality, and that people never
desire anything but happiness. He supports this claim by showing that all the other objects of people's desire are
either means to happiness, or included in the definition of happiness. Mill explains at length that the sentiment of
justice is actually based on utility, and that rights exist only because they are necessary for human happiness.
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c. Henry Sigwick: Act and Rule Utilitarianism

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Henry Sidgwick's the Methods of Ethics is one of the most well known works in utilitarian moral philosophy, and
deservedly so. It offers a defense of utilitarianism, though some writers (Schneewind 1977) have argued that it
should not primarily be read as a defense of utilitarianism. In The Methods Sidgwick is concerned with
developing an account of "the different methods of Ethics that I find implicit in our common moral reasoning
These methods are egoism, intuition based morality, and utilitarianism. On Sidgwick's view, utilitarianism is the
more basic theory.
One issue raised in the above remarks is relevant to practical deliberation in general. To what extent should
proponents of a given theory, or a given rule, or a given policy or even proponents of a given one-off action. For
Sidgwick, the conclusion on this issue is not to simply strive to greater average utility, but to increase population
to the point where we maximize the product of the number of persons who are currently alive and the amount of
average happiness. So it seems to be a hybrid, total-average view.
9. The Economic Approach

a. Richard Posner: Economic Jurisprudence and Consequentialism
Although Posner views law as having no foundation, he strongly argues that laws and adjudication have an
internal core and that is the wealth maximization. Wealth maximization occurs when individual rational
maximizers together make up an economic society built upon efficiency and incentives in which the wealth
of the society as a whole is maximized. For Posner, justice is grounded in the wealth maximization of
society as a whole. Laws and adjudication must provide incentives for rational maximizers to maximize the
wealth of society. If an incentive and a right conflict, and the incentive is required for wealth maximization,
then the right can be disregarded.
10. Legal Formalism or Conceptualism

Legal formalism is both a positive or descriptive theory of adjudication and a normative theory of how judges ought to
decide cases. In a descriptive sense, formalists believe that judges reach their decisions by applying uncontroversial
principles to the facts. Although the large number of decided cases implies a large number of principles, formalists
believe that there is an underlying logic to these principles that is straightforward and which legal experts can readily
discover. The ultimate goal of formalism would be to formalise the underlying principles in a single and determinate
system that could be applied mechanically (hence the label 'mechanical jurisprudence'). Formalism has been called
'the official theory of judging'. It is the thesis to which legal realism is the antithesis.
As a normative theory, formalism is the view that judges should decide cases by the application of uncontroversial
principles to the facts.
a. Jeremy Bentham: Originalism/ Textualism or the Plain Meaning Approach

In the context of United States constitutional interpretation, originalism is a way to interpret the Constitution's
meaning as stable from the time of enactment, which can be changed only by the steps set out in Article Five.[1]
The term originated in the 1980s.[2]
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Today, originalism is popular among some political conservatives in the U.S., and it is most prominently
associated with Justice Clarence Thomas, Justice Neil Gorsuch, the late Justice Antonin Scalia, and the late
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Judge Robert Bork. However, some liberals, such as late Justice Hugo Black and jurist Akhil Amar, have also
subscribed to the theory.[3]
Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis," the notion that an
utterance's semantic content is fixed at the time it is uttered.[4] Originalists seek one of two alternative sources
of meaning:
The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent
with what was meant by those who drafted and ratified it. That is currently a minority view among originalists.
The original meaning theory, which is closely related to textualism, is the view that interpretation of a written
constitution or law should be based on what reasonable persons living at the time of its adoption would have
understood the ordinary meaning of the text to be. Most originalists, such as Justice Scalia, are associated with
that view.
Such theories share the view that there is an identifiable original intent or original meaning, contemporaneous
with the ratification of a constitution or statute, which should govern its subsequent interpretation. The divisions
between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of
the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of
the text but not its expected application.
b. Antonin Scalia: Contemporary Originalism

Justice Scalia, one of the most forceful modern advocates for originalism, defined himself as belonging to
the latter category:
The theory of originalism treats a constitution like a statute, and gives it the meaning that its
words were understood to bear at the time they were promulgated. You will sometimes hear it
described as the theory of original intent. You will never hear me refer to original intent, because
as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't
care about the intent, and I don't care if the framers of the Constitution had some secret meaning
in mind when they adopted its words. I take the words as they were promulgated to the people of
the United States, and what is the fairly understood meaning of those words.
11. The Policy Science School

The policy sciences created by Lasswell and developed by McDougal, Kaplan and many others in the post-
WWII. The policy sciences have stressed the need for taking a contextual and explicitly normative approach to
problems (Lasswell and McDougal, 1992). The policy scientist produces ethical as well as empirico-analytic
knowledge, and recognizes that the knowledge claims produced are not universalizable. The synthesis of
normative and factual beliefs that is the central task of the policy sciences hearkens back to Deweys philosophy
of knowledge in society (Dewey, 1960).
The policy sciences, then, are designed to be scientific without being positivistic scientific in the larger sense
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of being empirically grounded, systematic knowledge. But the natural and social sciences themselves are firmly
rooted in the epistemological presumptions of positivism the belief that valid knowledge claims are value
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escaped the gravitational pull of such assumptions. Moreover, it is worth asking whether the very term policy
itself slants the issue.
The policy sciences lack a body of thinking dedicated to identifying means of improving community and
institutional values through a process of dialogue and (self) criticism. Such an approach has been set aside as
impossible, because of our supposed inability to provide an account that one set of values is any better than
another. Of course, this occurs at the same time that values such as fairness, open mindedness, and respect for
evidential reasoning are heralded by everyone, and are applied to questions ranging from the local to the global.
a. Harold Lasswell and MyresMcdougal: Legal Education and Public Policy

The first indispensable step toward the effective reform of the legal education is to clarify its ultimate aim.
The proper function of law schools is to contribute to the training of policy makers for the ever more
complete achievement of the democratic values.The lawyer today, even when not himself a maker of
policy, the one indispensable adviser of every reasonable policy-maker of our society. Lasswell and
McDougal fused policy, law, and sociology together in a manner that would allow lawyers the widest
latitude in fashioning remedies to problems that were not easily resolved by the current structures of
positivism. They posit that human dignity is the linchpin of policy-oriented jurisprudence.
12. Legal Practice Theory

Legal Practice Theory is a theory that challenges and overturns accepted norms and standards in legal
theory and practice. Proponents of this theory believe that logic and structure attributed to the law grow out of the
power relationships of the society. The law exists to support the interests of the party or class that forms it and is
merely a collection of beliefs and prejudices that legitimize the injustices of society. The wealthy and the powerful use
the law as an instrument for oppression in order to maintain their place in hierarchy. The basic idea of Legal Practice
Theory is that the law is politics and it is not neutral or value free. Many in this theory movement want to overturn the
hierarchical structures of domination in the modern society and many of them have focused on the law as a tool in
achieving this goal.
Legal practice is sometimes used to distinguish the body of judicial or administrative precedents, rules,
policies, customs and doctrines from legislative enactments such as statutes and constitutions which might be called
"laws" in the strict sense of being commands to the general public, rather than only to a set of parties
Legal Theory on the other hand draws contributions not only from academic law, but from a wide range of
related disciplines in the humanities and social sciences, including philosophy, political science, economics, history
and sociology. Topics covered fall mainly into the broad categories of analytical and normative jurisprudence,
doctrinal theory, policy analyses of legal doctrines and critical theories of law.
a. Philip Bobbit: The Six Main Modalities

Like many contemporary scholars, Bobbitt believes that the Constitution's durability rests, in part, in the
flexible manner in which it can be and has been interpreted since its creation. He emphasizes the
"modalities of constitutional argument": 1) structural; 2) textual; 3) ethical; 4) prudential; 5) historical; and 6)
doctrinal. He has argued in his books for the recognition of the ethical modality, which has to do with the
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traditional vision we have of the nation and the role government ought to play (some scholars call this form
"argument from tradition"). He first introduced these forms of argument---or modalities---as a way of
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understanding constitutional review generally in "Constitutional Fate: Theory of the Constitution" (1982), a
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study of judicial review and then broadened their application to constitutional review generally in
Constitutional Interpretation (1993) which deals with non-judicial examples of constitutional argument and
decision making. Bobbitt asserts that all branches of government have a duty to assess the constitutionality
of their actions. Constitutional Fate is a commonly used text in courses on constitutional law throughout the
U.S.[citation needed] Bobbitt's "modalities" of constitutional law are now generally considered to be the
standard model for constitutional arguments.
Six Modalities
1.HISTORICALmust be used when the intention is to decipher what was really meant by the framers of
the law .
2.TEXTUAL looking for what the law simply declares or denies and how it can be interpreted in
contemporary times.
3.STRUCTURALinterfering rules from structures and mandates.
4.DOCTRINALapplying rules generated by precedent.5.ETHICAL/MORAL appealing in the ethos or

ideals of a government (teleological).
6.PRUDENTIAL calculus of costs and benefits.
X. POSTMODERNISM AND THE FUTURE OF LAW
POSTMODERNISM AND FUTURE OF LAW (pg. 204 of Bernardo book)

Change is the law of life
Those who only look to the past or present are certain to miss the future. J.F.K
POSTMODERNISM MODERNISM
stresses relativism and respect for opinions, values, emphasizes universalism, uniformity, purpose, form,
expressions, chance, difference, and change. hierarchy, categories, structure, and order.
reaction to modernism; the law is now more open; laws There is militarism and absolutism which led to to 2
have been reformed to adapt to the times and World Wars and uncompromising doctrines of
accommodate marginalized group metanarrative isms- Communism, Capitalism, Nazism,
Fascism, racism and religious fundamentalism
Inclusion; no boundaries; to make feel everyone belong Exclusion; uncompromising

and to empower all citizens regardless of status
Critic (Jose Ortega y Gasset) say that erasing tradition,
religion, political institutions, we are left with pseudo-
intellectual who have no moral code, and rising masses
22
with no sense of direction and purpose.

Critic (Benedict XVI) postmodernism is tyranny of
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relativism where no truth becomes absolute truth
Class 1E (2016-2017)
1. Feminist Philosophy
Feminist philosophy refers to philosophy approached from a feminist perspective and also the employment of
philosophical methods to feminist topics and questions. Feminist philosophy involves both reinterpreting philosophical
texts and methods in order to supplement the feminist movement and attempts to criticise or re-evaluate the ideas of
traditional philosophy from within a feminist framework.
Feminist philosophy can be understood to have three main functions:

1. Drawing on philosophical methodologies and theories to articulate and theorise about feminist concerns and
perspectives.
2. Investigating sexism and androcentrism within the philosophical tradition.
3. Contributing to philosophy with new approaches to existing questions as well as new questions and fields of
research in light of their critical inquiries into the philosophical tradition and reflecting their concern with
gender.
2. The Other: Anti-Discrimination Laws

Anti-Discrimination Laws
The concept of discrimination picks out a kind of moral wrong that is a function of the salient social group
membership of the person wronged: persons are treated as though they had diminished or degraded moral status on
account of their group membership, or they are, because of their group membership and the relative disadvantages
that they suffer due to that membership, made vulnerable to domination and oppression.
Until the middle of the 19th century, critical moral reflection and discussion proceeded largely without the concept of
discrimination. But over the course of the first half of the 20th century, moral reflection became increasingly sensitive
to the fact that many, even most, of the large-scale injustices in history had a group-based structure: certain
members of society were identified by others as belonging to a particular salient group; the group members were
consistently denigrated and demeaned by the rest of society and by its official organs; and many serious relative
disadvantages connected to this denigration and demeaning, such as material deprivation and extreme restrictions
on liberty, were imposed on the members of the denigrated group. It is this historical reality, apparently deeply rooted
in human social life, that gives the concept of discrimination its point and its usefulness. The concept highlights the
group-structure, and the relative deprivations built around this structure, that are exhibited by many of the worst
systematic wrongs that humans inflict on one another.
Youngs understanding of discrimination seems to rest on some misconceptions. First, the concept of discrimination
does not, strictly speaking, present injustices as ones that groups suffer. The injustices are suffered by the members
of the group and not by the group as such. This point might seem to play into Youngs hand, as one might infer from
it that the idea of discrimination cannot capture injustices that are systemic rather than aberrant, the rule rather than
the exception. But such an inference would be mistaken, and that mistake leads to a second misconception in
Youngs account. Discrimination against the members of a group can be, and often is, systemic. The reason is that
wrongs against individuals on account of their group membership typically are not aberrant but form broad social
patterns. Accordingly, the idea of discrimination can capture the profound systemic wrongs to which Young refers,
while preserving the key moral thought that the wrongs are done to individuals. At the same time, Young is right
insofar as she is claiming that exploitation, powerlessness, and her other profound wrongs do not necessarily have a
component involving direct discrimination. The claim is important, because the failure to appreciate it would incline
23
one to think mistakenly that, to the extent that direct discrimination recedes, so must exploitation, powerlessness and
so on. Accordingly, if direct discrimination recedes, the profound injustices referred to by Young could persist with
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their present force or even grow worse.
Class 1E (2016-2017)
3. Environmental Laws and Ethics

The philosophy of Environmentalism is a recent movement that stemmed from the growing concern of
society with the increasingly alarming trends of environmental neglect exacerbated by global warming which has
led to the depletion of natural resources to a shocking degree, the extinction of certain species of flora and fauna,
and the destruction of the ecosystem as a whole. It is a philosophy that aims to strike a balance between progress
and ecology, all the while making it clear that any damage mankind does would ultimately impact him in one way or
another. There are three main schools in Environmentalism: (1) Deep Ecology; (2) Animal Liberation; and (3) Earth
Jurisprudence.
Bill Devall and George Session proponents of Deep Ecology and authors of an eponymously-titled book,
argues against the dominant worldview of industrial societies which holds on to the notion that progress justifies
mankinds domination over nature at whatever cost. Deep Ecology calls for harmony with nature, recognition of the
intrinsic worth of each and every living specie on the planet, of the scarcity of earths natural supply chain, and how it
is imperative for mankind to pursue his goals without further causing damage to the world he lives in and seeking to
limit mans exploitation to only out of necessity out of fear that mankinds end would follow should his limited
resources be depleted.
Another branch of environmentalism likewise exists, albeit this one having more emphasis on animals. Here,
in Peter Singers philosophy of Animal Liberation, the main argument is that animals are sentient beings who have
the same desires as we human beings, thus qualifying them to have biocentric equality, or the equal right to live in
the same way as we are free from mankinds exploitation. For this reason, adherents to the idea of biocentric
equality promote for the humane treatment of animals, and likewise support a strictly vegetarian diet out of respect
for such animals.
At this point, it is important to state that this philosophical view is heavily criticized to be biased against plant
life and that its tenet of biocentric equality could be extended to include pests like locusts, cockroaches, and rats;
thus equating their extermination to human genocide.
The last branch of philosophy under Environmentalism is Earth Jurisprudence or wild law as it is informally
regarded as. This branch seeks to balance the needs of humankind with the other members of the ecosystem,
including plants and animals through the creation and implementation of laws and regulations. This is arguably the
youngest of the three branches, it having just started to gain popularity after with the adoption of the Rio Declaration
on Environment and Development 1992 following the adoption of the United Nations Framework on Climate Change.
Despite being the last, this branch is the most practical in terms of scope and application seeing that its
tenets are plainly written and given legal effect through the creation and ratification of signatory States and the
creation of laws that follow such tenets within their own borders. As such, this last branch follows several guiding
principles which are all-encompassing designed to be flexibly interpreted based on whatever social sphere or
situation they are meant to be applied in. These key principles are as follows: (1) environmental laws are to have
stricter application with developed countries than developing countries; (2) polluters are to bear the costs of their
pollution; (3) intergenerational responsibility; (4) precautionary measures to prevent further damage to the
ecosystem; (5) the duty of a State to prevent activities that entail significant risk to those outside of its borders; (6)
promote sustainable development; (7) inter-State green technology transfer; and (8) preservation of the rights of
indigenous people.
24
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Class 1E (2016-2017)
4. The Philippine Legal Paradigm

Heavy Western Influence
Civil and Criminal Codes came from Hispanic and Roman Laws
Constitution - inspired from American and French Liberal Constitutions
Commercial - American Mercantile Laws
Jurisprudence/Remedial Rules on evidence - Western Empirical and inductive theories
Labor Laws - partly socialist elements inspired by Marx's ideology
International Laws - Dominated mostly by western legal currents
Pre-colonial Filipinos has no written draft of Laws but merely oral or pass-on traditions of indigenous communities.
DISADVANTAGES of Western Influence:

1) Heavy reliance on Western Jurisprudence
2) Contrary to what Filipinos actually practice/does not reflect Filipino Customs, Cultures and realities
"Filipino Philosophy" is merely a generalized concept since Filipinos are multicultural with no singular unified thought
system other than what was received from the west.
Supreme Court Jurisprudence

Can be used as a source to determine "Filipino Legal Philosophy" by going into indigenous viewpoints on
Land, Community, Family, and ownership together with actual understanding of Electorates Peculiar views
and cultural framework
Difference between Filipino Legal Philosophy vs Western

1) DUTIES vs RIGHTS
Filipinos values duties(Katungkulan) rather than rights. As evidenced by Peace Pacts between minorities,
the provisions focus on strict sanctions for bilateral duties compared with American provisions which focus more on
rights and liberties
2) DEBT OF VOLITION (concept of "Utang na loob")
Despite no written contract or external law, Responsibility or the obligation to be responsible is clear and
evidenced by a myriad of wealth and traditions focusing on social interactions or relationships such as family,
ancestry, religion and group.
3) SOCIAL vs INDIVIDUALISTIC
Instead of concepts such as "Alienation" of property, protection of interest thereof, Filipino Customs focus
more on social events such as Barrio Fiestas/Celebrations and concepts of Money/Property available for lending and
borrowing 25
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Class 1E (2016-2017)

Schools of Thought

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San Beda College Alabang Legal Philosophy Atty. John R.

IX. LEGAL PHILOSOPHY SCHOOLS OF THOUGHT

1. Teleological or Natural Law Theory

a. David Hume: Legal Positivism

b. Jeremy Bentham on the Principles of Morals and Legislation

Principles of Morals and Legislation

Chapter 4: Value of a Lot of Pleasure or Pain, How to be Measured

When the subject is a group of people, he considers:

c. John Austin: The Province of Jurisprudence

d. Hans Kelsen: Pure Theory of Law

Pure Theory of Law

points of modernist legal theory.

e. Thomas Hobbes: Legalism or Rule by the Law

f. Herbert Hart: Rule of Recognition

1. To establish a test for valid law in the applicable legal system,

g. Confucianism: Political Theory and Rectification of Names

3. The Interpretivist or Constructivist Theory

a. Ronald Dworkin: Interpretivist Approach and Best Fit Theory

4. Realist or Pragmatist Theory

a. Justice Oliver Weldell Holmes: The Path of the Law

5. Critical Legal Theory

6. The Historical Approach

a. Friedrich Karl von Savigny: The Volgeist

b. Sir Henry Sumner Maine: Legal History Theory

c. G .W.F. Hegel: Dialectic Idealism and the Philosophy of Law

7. The Functional or Sociological Approach

a. William James: Law as a means to satisfy needs

b. EmileDurkeim: Theory of Legal Change

c. Charles Louis Baron de Montesquie: Adapting law to shifting conditions

Real Name: Charles-Louis de Secondat

2 most notable works:

1. Persian Letters ( Published in 1721)

2. The Spirit of the Laws (1748)

B. GOVERNMENT- believed in 3 forms of republican govt: 1. Democratic, 2. Aristocratic, 3. Despotic.

D. CLIMATE AND GEOGRAPHY

law aims for the welfare of society.

d. R. Von Jhering: Law as a method of ordering society

e. Roscoe Pound: The scope and purpose of socio-logical jurisprudence

f. Max Weber: Typology of Law

g. Roberto Mangeira Unger: Cultural Context Theory

h. Eugen Ehrlich: The Living Law

i. Talcott Parsons: Law as integrativist mechanism of social control

j. John Rawls: The Sociological School

8. The Utilitarian Approach

Principles of Morals and Legislation

Chapter 4: Value of a Lot of Pleasure or Pain, How to be Measured

When the subject is a group of people, he considers:

b. John Stuart Mill: Utilitarianism, Law and Authority

c. Henry Sigwick: Act and Rule Utilitarianism

9. The Economic Approach

10. Legal Formalism or Conceptualism

a. Jeremy Bentham: Originalism/ Textualism or the Plain Meaning Approach

b. Antonin Scalia: Contemporary Originalism

11. The Policy Science School

a. Harold Lasswell and MyresMcdougal: Legal Education and Public Policy

12. Legal Practice Theory

a. Philip Bobbit: The Six Main Modalities

3.STRUCTURALinterfering rules from structures and mandates.

4.DOCTRINALapplying rules generated by precedent.5.ETHICAL/MORAL appealing in the ethos or

6.PRUDENTIAL calculus of costs and benefits.

X. POSTMODERNISM AND THE FUTURE OF LAW

POSTMODERNISM AND FUTURE OF LAW (pg. 204 of Bernardo book)

Inclusion; no boundaries; to make feel everyone belong Exclusion; uncompromising