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INfRODUCTION TO

LEGAL PHILOSOPHY*

*Recorded on December 15, 1952 in the Registry ofRe-


search Prqjects of the Association of American Law Schools
under the tentative title INTRODUCTION TO THE STUDY OF
I.AW, 7 Journal of Legal Education, 429, 437. This book was
published under the present title in 1959.

iii
1997 Revised Edition
Printed in the Philippines

Every copy of this book is numbered


and signed by the author,
otherwise it comes from
an illegal source

iv v
INTRODUCTION
TO
LEGAL PHILOSOPHY
ISBN-971-8518-38-5

UNITED STATES
LIBRARY OF CONGRESS
CATALOG CARD NUMBER 54-37450
Dedicated to
my wife
whose encouragement and inspiration
have made this volume possible

Publisher
University of the Philippines Law Center
Quezon City, Philippines

vi vii
..

INTRODUCTION
TO
LEGAL PHILOSOPHY
Other Books by the Author

LEGAL METHOD

LABOR RELATIONS LAW


CRISOLITO PASCUAL
LL.B. (U.P.), LL.M. (Boston U.)
Associate Justice (Ret.)
Court of Appeals of the Philippines
Professor of Law, U.P.
Former Director, U.P. Law Center
Former Editor, Philippine Law Journal
and Journal of the Integrated Bar

viii ix
Copyright 1997 FOREWORD

by FOREWORD
CRISOLITO PASCUAL
There is a ferment abroad in the field of Philippine legal
study today. There is a noticeable movement away from the
narrow and obsolete manner of considering the study of the
law as a set of rules, or symbols, or common sense only.
Indeed, in some universities and law schools certain definite
steps have already been undertaken to initiate the students in
the basic concepts of the nature of the law and a study of its
principal elements. This movement is a reaction against the
out-moded system of giving a general survey of the entire four-
ALL RIGHTS RESERVED, year law course, necessarily superficial, since it is quite
INCLUDING TI-IE RIGHT TO REPRODUCE THIS impossible to contain in a 2-unit semestral course even the
BOOK OR PORTIONS TiiEREOF IN ANY FORM definitions and principles alone of each and every branch of
OR BY ANY MEANS WHATSOEVER Philippine law. There is really no such thing as elementary
Philippine Law.

The effort that has been made by Professor Criscilito


Pascual to present the subject-matter of the nature of the law
has something to do with this ferment. In several articles which
he wrote for The Lawyersjournal he has emphasized the need
for the study of the nature and the elements of the law. The
book which Professor Pascual has written is in keeping with
the purpose of introducing the student to the study of the
Ninth Edition, 1997 nature and elements of the law, which the student will round
Eighth Edition, 1994 up with the course in jurisprudence, so that he may realize
Seventh Edition, 1989 what a truly noble profession he is entering into. In the long
Sixth Edition, 1983 run, this study would be more beneficial to the student. In the
Fifth Edition, 1974 words of Sir John Austin, the celebrated English jurist, such a
Fourth Edition, 1970 study would provide him with "a conception of the Jaw as a
Third Edition, 1959 whole and of the mutual relations of its elements."

x xi
FOREWORD FOREWORD

In his approach to the problem of introducing the student direction of Professor Albert Haymond I3iesel. I am sure
to the study of the nature of the law, Professor Pascual has Professor Pascual's work w ill be an important addition to the
considered it as a progressive, dynamic force. He has not legal literature of our country.
limited himself to a particular juristic viewpoint as to the nature
of the law but has considered the different juristic viewpoints
as an evolutionary development of one concept. I believe his HOMA OZAETA
thesis is well taken for .after all the later juristic views are but Associate Justice
the succeeding improvements on previous ones. But Professor Supreme Court of the Philippines
Pascual has gone a step further by emphasizing the lessons and (1941 -1950)
elements of value contained in each juristic viewpoint and
stressing the essential role or function of the law in the Dean
community. He has also developed the theme that the law is College of Law
likewise a vital and essential force that can bring humanity University of the East
toward peace and happiness and clear up the existing tensions (1951 -1956)
in the world.
November 18, 1951
I am one of those who believe that there is really no point College of Law
or advantage to be gained by giving the student a little of every University of the East
branch of Philippine law in one brief semester. There is Manila, Philippines
everything to be gained by exposing the student to the study
of the nature of the law and its essential role in the commun ity.
It is the duty of universities and law schools, because they are
the traditional training ground of our future policy planners
and responsible government functionaries, not to perpetuate
the antiquated approach to the study of law. Otherwise, it is
extremely doubtful if institutions of learning can be able to
contribute towards the solution of the greater problem of war
and peace, which is one of their primary functions.

The author has the background for the task which he has
accomplished. I believe it is the first of its kind here. I-le is a
product of the University of the Philippines where he obtained
his LL.B. degree. He obtained his LL.M . degree from noston
University where he first worked on his book under the

xii xiii
PREFACE TO THE NINTH EDITION PREFACE To nm E1Gu111 EnmoN

Looking back, I recall my anxiety when the first edition The catalog of the College of Law of the University of the
of this book (a slender volume) came off the press. I thought Philippines describes the course in]urtsprudenceas the "study
I had something worthwhile to say concerning the study and of the main schools of jurisprudential thought, with emphasis
understanding of the law as a means of social control. Whether on the philosophical influences on the varying conceptions of
my readers would think similarly was something else. But the ideal law and material law as an instrument of procedural and
generous reception of the book over the years has encouraged substantive justice." This is a recognition of the importance of
me to continue improving its contents. the impact of the different philosophies of law on the students
during their formal legal education.
I am glad that the University of the Philipp ines Law Center
is my new publisher. My long and fruitful association with this The first (tentative) edition of this textbook was published
institution has made this arrangement doubly gratify ing. on February 20, 1951. Now it is 1994. The passing of years has
not dimmed the importance and influence of jurisprudence or
I wish to acknowledge the assistance extended to me by legal theory on the legal order, that is to say on law and
Erlinda N. Lopez, head of the Information and Publication government. Over the years, I have tried to improve the
Division of the U.P. Law Center, and her staff in getting this contents of this book. The more I try the more I realize my own
volume ready for publication. deficiencies. While I feel confident about the 's cope of this
book I'm not sure whether I have used the proper method of
presenting it. I'll not be surprised if I receive criticisms about
CRISOUTO PASCUAL it. My consolation though is that I ventured to do it in order
to have an introductory textbook on the subject. And so if the
reader later finds enough interest to read the original works of
the masters, then, the purpose of this book would have been
College of Law realized.
University of the Philippines
March 10, 1997. This constrains me to repeat the prime consideration for
the preparation of this book. I have not been in favor of
exposing the student right away to the difficult and unfamiliar
works of philosophers and jurisprudents. There is much that
can be said against such an approach, expecially when it
concerns students whose English is not an innate language.
This is important. The students should first have a working
background or overview of the perspectives of the different
schools of jurisprude nce on the nature and function of the law.

xiv xv
PREFACE TO TllE E1c1rrH EomoN PREFACE TO THE SEVENTH EDITION

This will provide the students with a fairly good idea of the
underlying thrust of each juristic school and to which school Since my retirement from the Court of Appeals in Novem-
of jurisprudence the different legal philosophers belong. ber of 1986, I have had the time to update this book. This
Stated differently, the answer to the problem of the nature of revised edition contains substantial changes. I have also recast
the law depends on the approach a philosopher or jurisprudent the text a good deal in order to make it more readable and
takes. understandable, especially to the uninitiated.
After serving as a Justice of the Court of Appeals from 1973 In the preface to the third edition (1959), I referred to the
to 1986, I have returned to the College of Law of the University vexing problem of the relation of law and morals which has
of the Philippines. My retirement from the bench has given me continued to excite the attention of jurisprudents and jurists
ample time to revise the previous edition of this book and to alike. There I cited the debate on this question between
include the recent developments in the field of jurisprudence. Richard V. Carpenter and Gerhard O.W. Mueller in the pages
As a result, there is hardly a page that has not been improved
of the Journal of Legal Education published by the Association
and updated. To cite just one example, the sub-chapter on of American Law Schools and a similar debate between Herbert
critical legal realism has been expanded considerably. L.A. Hart and Lon L. Fuller in the pages of Harvard Law Review.
My mistakes are my own, no one else's; certainly not my The passing of thirty years has not dimmed the interest on
sources whom I have only interpreted or explained for the this and other problems in jurisprudence. Richard A. Posner
benefit of the reader,. continues the inquiry in an article entitled Thejurisprudence of
Skepticism published in 86 Michigan Law Review, 827 (April,
In view of the limited hours allowed by the law schools
1988). Posner contends that Hart's view that the term, "law"
to this study, it may not be possible to cover the entire book.
refers to positive law however bad or evil and Fuller's reply that
This has been my own experience in teaching the subject over
amoral positive law is no "law" at all are both wrong because
the years. May I repeat, then, my suggestion expressed in the
the concept of "law" denotes both positive law and natural law.
previous preface to this book that in addition to the first and Thus, Posner argues that while the mass murder of European
sixth chapters the professor select the schools of jurisprudence Jews was authorized by the positive law of Nazi Germany such
to be assigned for study on t~e basis of the temper and · positive law was a violation of the postulates of the supra positive
disposition of the times. natural law, and, therefore, null and void.
CrusouTo PASCUAL
Posner's view is similar to the thinking of Mr. Justice Felix
College of Law
Angelo Bautista which he expressed in a decision penned for
University of the Philippines
the Supreme Court 35 years earlier in the leading case of Rutter
Diliman, Quezon City
November 4, 1993

xvi xvii
PREFACE TO THE SEVENI'H EomoN PREFACE TO THE SIXTH EDITION

v. Esteban. 1 The views of Bautista and Posner revive the


argument levelled against the ir views: that such idea of a
suprapositive law is antithecal to a workable legal order The continued reception of this book provides the reason
for the present edition.
inasmuch as statutes could then be adjudged twice - first, by
the superpositive law, the constitution, and second, even if
found to be constitutional but bad or evil, by the axiological The rationale for this preparation stated in the preface to
the first, second, and third editions has continued to guide the
precepts of the suprapositive natural law. 2 If courts were able
revision of this volume. This edition has considerably impoved
to do this, then they would be embarking on a dangerous
the book.
course for the postulates of the natural law are not fixed nor are
they encaptured by any definite standards. Indeed, the "ablest
To the law l a h r, I would like to suggest that emphasis
and the purest of men have differed on the meaning of the
natural law."3 be placed on the h ls of jurisprudence which are relevant
to the times sh uld th r n l be enough time to coverthe book
within the peri d alloll 'd f r th course.
I would life to repeat my suggestion to the law teacher
contained in the preface to the sixth edition of this book when
he finds himself hard pressed for time to cover the contents of C RJSOUTO p ASCUAL
the book.
CRJSOUTO PASCUAL
Court of Appeals
Manila, Philippines
January 10, 1983
College of Law
University of the Philippines
September 27, 1988

1
93 Phil. 68 (1935).
2
See pages 63-66, infra.
3See pages 299-300, infra.

xviii xix
PREFACE TO THE FIFTH EDITON PREFACE To THE FoURm ErnnoN

The printer-publisher of this volume had no idea that the What I said in the preface to the first edition of this book
number of copies he turned -out for the fourth edition would regarding the difficulty of the uninitiated in reading the works
be exausted in a very short period of time. I was informed that of the masters without a preview of the main currents of jur-
more and more law schools in Lhe country are using it for their istic thoughts still holds.
courses in jurisprudence and Legal fhilosophy.
This edition is a revision of the contents of the previous
The fifth edition is, therefore, published to fill the needs issue. Because legal philosophy is always in flux, there is need
of law teachers and stucie nts for this textbook. I must state here for a periodic reexamination of the ideas and matters contained
that the revision of the text of the fifth edition is rather minimal. in this volume. New ideas have been introduced while some
Most of the changes in the text appear in the first and the last have been removed on the basis of recent developments in
chapters. Indeed, second-hand copies of the fourth edition legal science.
may still be used, if necessary.
As it was in the previous editions, I have prepared this
CRISOLITO PASCUAL edition as simple as possible. Technical terms have been
avoideq whenever possible without sacrificing accuracy of
ideas. Although I have coined one or two words myself, this
College of Law is necessary to express better the concept or idea involved.
Un.iversity of the Phil ippines
Diliman, Quezon City CRISOLITO PASCUAL
July 20, 1974 •
College of Law
University of the Philippines
Diliman, Quezon City
May 20, 1970

xx xxi
PREFACE TO THE THIRD EDITION PREFACE TO THE ThIRD EomoN

according to the rule of law or to the rule of force is a matter


hinging ultimately on the perspective or viewpoint that one
Let me state at the onset that this edition is published
takes of the law, be he a policy maker, a government official,
under a new title: IITTRODUCTION TO LEGAL PHILOSOPHY. I believe
or a lawyer. The problem of course is a heritage of the past.
this is the proper title of this work.
But in the Philippines it has been all too real. Courses in
The nature and function of the law and its basic problems, jurisprudence did not gain acceptance in the law curriculum
e.g. the desirable goals of law, the modem judicial process,
until after the last world war upon the return of the Filipino law
natural law, legal positivism, law and morals, have continued teachers from graduate studies abroad. Even so there are law
to be more than merely academic questions. A few years ago schools which still continue to minimize the value of juris-
Professor Carpenter and Professor Mueller debated in the prudence. There is no need to emphasize its importance.
pages of the Journal of Legal Education, published by the Suffice it to say that it supplies the historical and ethical
Association of American Law Schools, the basic criticism of foundations of legal study. Professor James). Cavanaugh has
positivistic legal philosophy. This debate appeared in three aptly said that "if these foundations are not taught and
essays: 7be Problem of Value judgements as Nomzs ofLaw by emphasized then students are led to the appalling conclusion
Richard V. Carpenter, 7). Legal Educ. 163 (1954), 7be Problem that they do not exist; their enthusiasm wanes, they continue
ofValuejudgments as Norms ofLa.w: The Answer ofa Positivist dispiritedly, and graduate unpleasantly close to cynics." Thus,
by Gerhard O.W. Mueller, 7 J. Legal Educ. 567 (1955), and Reply the study of law at the present time cannot be indifferent to the
to a Positivist by Richard V. Carpenter, 8). Legal Educ. 185 development of the methods and theories pursued by the
(1955). Only recently two other leadingjurisprudents discussed different juristic schools. Legal science cannot always endure
in the pages of the Harvard Law Review the importance still in the romanticism of the folk-soul nor can it remain under the
given to the problem in jurisprudence which has to do with domination of legal positivism, despite some element of truth
the conflict between the idealistic and the materialistic concep- in them. Law cannot be considered only as custom or
tions of the nature and function of the law in civil society. I am command, and thus for those who have only to follow or obey.
referring to Professor H. L. A. Hart's essay on Positivism and There must be a consideration of the social context in which
theSeparationoflawandMoraL<;, 71 Harv. Law Rev. 5930958) the law is operating, and thus for everybody.
and Professor Lon L. Fuller's views on Positivism and Fidelity
toLa.w:AReplytoProfessorHart, 71 Harv. Law Rev. 630(1958). In the past, the law has been considered in an almost
wholly egalitarian milieu. At present the consensus is to
It is precisely due to the fact that the law has become a consider individual rights in the light of the recognized
very important factor in society that siginificant questions interests, values and realities of society. These are not
concerning its nature and fun ction have arisen. The problem, accidental nor isolated matters or events but are refl ections of
for instance, of whether the ordering of society is to be the different periods of the history of legal science. And so in
times of great transition, like the present, where the law has
become a dominant factor in human life, there is no room to
be inconsiderate of the social philosophies of law. Thus,
juristic theory cannot simply be approached in a one-sided
xxii xxiii
PREFACE TO THE THIRD EomoN PREFACE TO THE Tu!RD EomoN

manner, that is to say, through the eyes of a particular school Thus, during the six years that followed the publication of the
of jurisprudence. The approach, if it is to be meaningful and second edition I have revised and rewritten the text to such an
fruitful, must consider the currents of jurisprudential thought. extent that this issue is almost an entirely new work. Only the
Jurisprudence must not work with one legal philosophy only general outline scheme common to the first and second
for there is danger in that simplicity. After all, each juristic editions is recognizable in the present impression. Even that
school is but a graft on the same trunk, not all growing with the has been considerably improved. In this present edition too,
same vitality and at the same rate, to be sure, but combining the second and third parts of the previous issues have been
together to make the trunk - law - the essence of democracy. omitted due to the changes in the curriculum of the College of
As Sir Paul Vinograndoff, formerly Corpus Professor of Juris- Law of the University of the Philippines. When the faculty
prudence at the University of Oxford, said, "a remarkable revised the curriculum in 1954 a new course entitled Legal
feature in the formation of social and legal doctrines is the fact Method was included in the first semester study of the entering
that the principal schools of thought arise and displace one class. Since the contents of the last two parts of the previous
another under the influence of actual changes in world politics, editions are properly within the scope of the new course I have
as though the material struggle for power or property was decided to exclude them in the present edition. In all these
reflected in the consciousness of thinkers and contributed revisions and changes I have tried to put more emphasis on
substantially to produce change in orienµtion of thought." prudence than on juris (to borrow someone else's phrase). If
in so doing one should notice that at times there is a tendency
The introductory exposure given in this textbook provides to over-simplify let me state that it is not due to a wish to
the students a preface to legal philosophy. Another way to overlook or drop the complexities of legal philosophy. It is due
study legal philosophy is by the method of heavy doses from to the constant thought that this work is not for the specialist
compilations of "readings" containing the works of the great in this discipline. Most of my readers will be those entering
legal philosophers arranged according to philosophies. But as upon the study of legal philosophy for the first time.
stated in the preface to the second edition this would be a
terrifying prospect for the exhausted and worried law student. CRISOUTO PASCUAL
Anyway, this heavy approach would need a lifetime. In a
course in jurisprudence which is limited by a set number of
hours an introductory textbook is perhaps best. I hasten to add College of Law
that this is a prompt introduction to certain pressing problems University of the Philippines
of jurisprudence in the perspective of the principal schools of Diliman, Quezon City
juristic thought. As a textbook is has its limits and I must admit August 19, 1959
my own limitations too. It is not, therefore, without imperfec-
tion although I hope they are interesting ones.

It has always been my ho pe to capture the inspiration of


legal philosophy for the reader so that it might engender in him
a strong interest and concern for the ideals and concepts of law.
xxiv xxv
PREFACE TO THE SECOND EDITION PREF'ACE TO THE SECOND EomoN

the teaching of the nature and elements of the law including


Some maintain that is better to let the student plunge its essential role in the community in the maintenance of peace
immediately into the deep waters of Jurisprudence to sink or and security is gaining ground. It was Cicero who stated that
swim. I am of the mind that the student would hardly survive the study of the nature of the law should form an introduction
the shock or live long enough for him to realize what has to the consideration of positive law. (De Legibus, Ch. X.) . Both
happened before giving up the ghost. I believe that a pre- original and revised editions were prepared under the restrictive
liminary exposure to the winds and waters of legal philosophy difficulty of a 2-unit course. Only so much can then be
would enable the student to survive. The preliminary exposure contained and perhaps it is jus~ as well, for an exposure other
would make him better prepared and equipped to come to than a preliminary one may tax the mind and negate the very
grips with the broader problems of the philosophy of law. The purpose of the course.
introductory course such as this book provides would be a
great help to the student and the teacher. I am greatly indebted to Mr. Justice Roman Orte.za, Dean
of the College of Law of the University of the East, for the
In the original edition pains were taken to present in as foreword to this book. Mr. Justice Ozaeta is one of those who
clear a light as possible the fundamental positions of the have recognized the obligation and opportunity of law schools
different juristic schools concerning the nature of the law, to teach the concept of the law as a whole. I wish to
emphasizing the lessons and elements of value that have acknowledge once more my gratitude to Dean Francisco R.
survived those positions. The approach or technique followed Capistrano for his continued interest in my work. Both Justice
is one involving the study of the different juristic theories in a Ozaeta and De-an Capistrano believe that law students who
conjunctive or evolutionary pattern .and not as disjunctive or have been exposed to the study of the nature and elements of
separate patterns. The dynamic approach is obvious from the the law, including its role in the community, would be more apt
fact that when a juristic school considers the law, it percieves and quick to realize both the shortcomings of laws and
it only in part and from a certain point of view. Furthermore, governmental acts on the one hand and the need for a proper
it is dictated by the reality that the disjunctive or static approach basis for them in order to survive and endure. I am likewise
leads only to strange if ncit absurd results, confusing the mind indebted to my colleagues, Dr. Jovito Salonga, Professor
in the process. Enrique M. Fernando and Professor Vicente Abad Santos, for
their helpful suggestions on some of the matters treated in this
The wide use of the first edition has made the publication book. I would like also to acknowledge my gratitude to
of the second and revised edition seem worthwhile. Since the Senator Claro M. Recto, Dean of the College of Law of the
first edition appeared I have continued to revise and enlarge Lyceum of the Philippines, to Dr. Ambrosio B. Padilla, pro-
the text so that the book is considerably improved thereby. In fessorial lecturer at the University of the Philippines and the
a way this revised edition is also aimed at meeting the problem Lyceum of the Philippines, and to Senator Lorenzo M. Tafiada,
presented by the need for more materials in view of the fact that professor of law, Manuel L. Quezon School of Law, for their
kind and generous comments about the book which have
' ntributed in no small measure to inspire the author. I would
Ilk also to express my appreciation and gratitude to Dr. D.D.
xxvi xxvii
PREFACE TO THE SECOND EomoN
PREFACE TO TIIE FIRST EDITION

Alejandro and Dr. John B. Holt for their valuable suggestions


and for their time and effort in reading the manuscript. My
The problem in a.course such as this is not so much the
obligations in writing this book are too many to be acknowl-
edged in full but the footnotes and selected bibliography are presentation of the entire field of Philippine law as it is the
a partial index of my indebtedness. systematic analysis of the complex term law and its ·e lements,
which has affected the growth of legal philosophy. There
seems to be no point or advantage in giving the students a
CRISOUTO PASCUAL
modicum of every branch of Philippine law in one brief
semester when he has the whole of his four years in law school
to analyze each and every one of them in the proper manner
College of Law
and in the fullness of their respective range and scope.
University of the East
Manila, Philippines
Sir John Austin once stated, and it is worthwhile to repeat
June 20, 1953
it here, thatthe knowledge of the law is nothing but a "beggarly
account of scraps and fragments; the memory may be stored
with numerous particulars, but of the law as a whole , and of
the mutual relations of its elements, there is not a conception."
This volume is an attempt to supply the first step to fil l in the
deficiency. Tht; second step, of course, is the study of the
philosophy of law.

With the study of the problem of the nature of the law and
its elements, the student would have taken up right away what
is introductory in jurisprudence. Besides, it would p lant the
idea or concept of the law as an instrument of individual and
social control. Indeed, in advanced universities there is a
determined anempt to instruct the students that the law is both
an instrument and a function of society instead of a mere self-
contained body of rules and principles. These objectives,
together with the desire to meet the requirements of the revised
law curriculum, have been the driving innuences in the
preparation of this volume.

It is my great pleasure to acknowledge my gratitude to


Dean Francisco R. Capistrano who suggested and fostered the

xxviii xxi.x
PREFACE TO THE FIRST EomoN
TABLE OF CONTENTS
project and who still continues his interest and encouragement.
It is an especial pleasure to record that Dean Capistrano has
always appreciated the opportunity and the obligation of law Section ?age
schools to teach the concept of law as a whole and the ultimate
jural ideas or elements to which the law is reduced . I am Title Page . . . . ... .. . .. . .. . . . . . . . .. .. . . . . . .. . . . . . . ... . . . . . ix
grateful to my colleagues, Professor Fred Ruiz Castro and Foreword . . . . .. . .. . .. . . . .. . . . . . .. . . . . . . . . . . . . . . .. . . . . . . . xi
Professor Enrique M. Fernando, for reading the manuscript and Preface to the Ninth Edition.. ........................... xiv
for some of their suggestions which I have gladly accepted. Preface to the Eighth Edition ............. .......... .... xv
Preface to the Seventh Edition ......................... xvii
CRISOLITO PASCUAL Preface to the Sixth Edition... ....................... .... xix
Preface to the Fifth Edition . .. .. . . .. . . . . . .. .. . . . . .. . . . .. . xx
College of Law Preface to the Fourth Edition . .. . .. . . . . .. . .. .. . . .. . .. . .. xx:i
Arellano University Preface to the Third Edition . . . . .. . . . . . . . .. . . . . . . . .. . . . . . xx:ii
Manila, Philippines Preface to the Second Edi ti on ...................... ..... xxvi
February 20, 1951 Preface to the First Edition . . . . .. .... .. . .. ... . . . . ... .. . . . xxix

Chapter I

JURISPRUDENCE. JURAL AND NONJURAL LAWS

Chapter Outline.. .... .. ........ ........................ 1


1. Nature of Jurisprudence .... .. ... ... ... ... .... .. ... 2
A. Proemium . .. . .. . .. ... . ... ......... .. ....... ..... ... . 2
B. The Problem Stated.. .... .... ..... .............. 4
C. The Di1Terent Schools of
Juris prudence ....... .. ...... .. . . ..... ... .... .. ... 6
2. Law in Gen era l ... ......... ......... .... ............ ...... 7
A. Rules of Action....... ...... ....... ................ . 7
B. Orders of S equence. ................... ....... .. . 8
C. Class ification.. .. ........ ........ ..... .............. 9
D. Focal Point of Nondevia tion .. ...... ........ . 9
3 . Jura l La w .... .... ....... ... ....... .... .................. 11
A. Pa rticula r Se nse .. . . .. . . . . . . . . .. . . .. .. . . .. . . .. . .. . 11
B. Collective S ense... .. ..... ...... .......... .. ....... 16

xxx xxxi
TABLE OF CONTENTS T ABLE OF' CONTENTS

C. Abstract Sense .... ..... ......... ................. . 19 8. Nature of the Law .. .... . . .. .. . .. . .. ... . . .. .. ... . . .. .. . 79
(1) Precepts .................................. ..... . 20 A The Oblutiacs of the People . .. .. . .... .. .. . . .. 81
(2) Ideals ........................................... . 23 B. The Folksoul .. .. .. . . . .. .. . . . . . . .. . .. . .. . .. . . .. . .. .. . 81
4. Nonjural Law ... ............................•.......... · ··· 28 (1) Folklore ............ ....... ...................... 82
A. Divine Law ................... ........... ·············· 29 (2) Folksaying . .. ... . .. . .. . . .. .. . .. . .. . .. .. .. .. . . . 83
(1) General Sense ................................ . 29 (3) Folkway .... .. .. .. . .. .. . ... . . . .. ... . .. . .. .... .. . 85
(2) Strict Sense .... ............................. · · 29 (4) Folksong . .. . .. . .. . .. . . .. .. ... .. . . . . . . . . .. . . . . .. 89
B. Natural Law ........................................ . 36 (5) Folkdance . .. . . . . .. . .. . . .. . . ... ... . ... .. . .. ... . 89
(1) Historical Background ................ .. 36 (6) Folkart .. .. .. . .. .. . .. .. .. ... . .. . .. . .. . .. . .. .. .. .. 90
(2) Concepts and Precepts ............... .. 41 9. Life of the Law ............. .. ... . ,. . .. . . .. .. .... .. .. .. .. 91
(3) Place and Function in the 10. Basic Points of Historical Jurisprudence... 92
Legal Order ................................. .. 43 A State and Folksoul ............................... 92
(a) Justificatory Use .................... . 43 B. Law Not Deliberately Made................... 95
(b) Oppositive Use ....................... . 46 1 1. Similarity of Different Legal Orders ... ........ 97
(c) Regulatory Use ...................... .. 48 A Historical Reason..... .......... .................. 97
(d) Interpretative Use ........ ........... . 66 B. Jurisprudential Reason . .. .. . .... .. . . . ........ 97
C . Moral Law ....... ........... ...................... .. . 69 12. Value of Historical Perspective ........ .......... 99
(1) Moral Order ................ .............. ... . 69
(2) Moral Norms ............... ................ :.
. 69 .. Chapter III
(3) Moral Law and Other
Disciplines ..... .......... ................ .. · · · 71 TIIE TELEOLOGICAL PERSPECTIVE
(4) Moral and Social Norms .............. .. 71
D. Physical Law ............... .... .................... . 73 Chapter Outline....... ..................... .. .......... 104
(1) Nature and Attributes ...... ....... .... .. 73 13. Labels .... ........... ............. ................... 105
(2) Discovered Norms ......... .............. :'. 74 14. Natural Law Basis.............................. .. ..... 106
(3) Distinguished from Jural Law ...... . 75 15. The Greek Concept ..... ... ..................... ...... 106
(4) Distinguished from Divine Law ..... . 75 A Absolute Justice ... ........................ ... ... 108
B. Rational Justice........ ............. ........ ..... 109
Chapter II C. Practical Justice ....... .. .. ............. ......... 111
D. Law as the Product of Reason
TIIE HISTORICAL PERSPECTNE Related to Justice and Equity .... .......... 11 4
16. The Roman Concept.... .. ... .......... ......... .... ... 115
Chapter Outline .... .............................. ..... . 76 A. Cicero .. .. ..... ...... .......... .. .. .. ..... ... ...... .. 1 16
5. Historica1 Perspective as a Starling Point .. 76 B . Gaius .. .. ....... ...................... ........... ... 12 1
6. Historical E lem ent in the Law .... .... .......... . 78 17. The Aquinian Concept................ .... ...... ..... 12 1
1. Historical View Limited in Scope ......... .... . . 79 A. Justice ... ............... .. ........... ................ 126
x:xxii xxxiii
TABLE OF CONTENTS TABLE OF CONTENTS

B. Law and Sovereignty . ......... ............... .. 128 B. Uncluttered by Metaphysical


C. Immutability of Law . .......................... 129 Speculations......... .............................. 179
18. The Kantian Concept................................ 134 26. Hobbes-Austin Concept ... . ..... ............. ...... 180
A. Human Consciousness and Conduct... 135 27. Legal Positivism..... ................................... 182
(1) The Principle of Rightness............. 137 28 . The Pure Positive Law Respo:ise ................ 183
(2) The Categorical Imperative ........... 138 A. Lausanne Brand................................. 184
B. The Sense of Striving for Rightness..... 142 B. Vienna Brand ..................................... 185
C. Metalegal Basis of Law.......... .............. 144 (I) Purification of Positive Law............ 187
19. The Utility Supplement............................. 145 (2) Normative Legal Order... ................ 189
A. Stages of Utilitarian Principle.... .... ...... 147 (3) Empirical Justice. ......... ................. 194
(1) The Benthamite Concept............... 149 29. The Law and the State.............................. 195
(a) Nature Basis ....... ......... ........... 149 30 .. The Supreme Political Superior................. 196
(b) Measure of Utility.................... 149 31. Essential Attributes of the Law... ........... .... 198
(c) Application in the Legal A. Conscious Formulation....................... 198
Order....................................... 153 B. Generality........ ..... .............................. 199
(2) The Jherinian Concept.................. 155 C. Authoritative Enforcement.................. 199
(a) Law of Purpose ........................ 156 32. Conflict with Historical View......... ............. 200
(b) Social Mechanics..................... 159
B. Value of the Utility Supplement........... 161 Chapter V
20. The Hegelian Concept.... .................. ......... 162
21. The Neo-Hegelian Concept ........................ 164 TI-IE FUNCTIONAL PERSPECTIVE
22. Modem Teleological Analysis......... ............ 167
A. Juristic Approach ............ ................ .... 167 Chapter Outline . ... .. .. .... ...... . .. . .. ...... .. ........ 203
B. Ethical Relativity ...... .......... ... ........ ... ... 168 33. Labels . . . . .. . .. . .. . . . . .. . .. . . . . . . . .. ... . .. . .......... 204
C. Interest of the State . . . . ......... ..... .... .. . .. . . 173 34. Background of Legal Theory . .. . .. .... .. . ... . . . .. . 205
23. Essential Attributes of the Law ...... .... ....... 174 3 5 . Reaction to Idealist and Positivist
Perspectives . . . . .. . .. . . . . .. ... . . . . . . ... . . . . .. . .. ... . . . . .. . 208
Chapter IV A. Criticism of Abstract Values............. ... 208
B. Criticism of Legal Positivism.... ... ......... 209
TI-IE POSITIVIST PERSPECTIVE 36. Recognition of the Interest of Society......... 211
37. Core of Functional Perspective . .. . .. . . . . .. ... . . . 213
Chapter Outline........................................ 176 38. Essential Factor in the Legal Ordering
24. Seed of Legal Positivism . . . .. . . .. . . . . .. . ... .. .. . . .. . 176 of Society . . . . .. . .. . .. . .. . .. .. .. .. .. .. .. . .. .. . . . .. .. . . . . . 21 7
25. The Positivist Approach... .... .. ....... ...... ....... 178 39. Functional Concept of Law........................ 218
A. Law Not Necessarily a Moral 40. Presentation of Conilicling or
Concept . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . .. . .. . .. . . . . .. . 178 Overlapping Interests . .. . . . . .. . .. .... .. ... ... .. .. .. . . 221
xxxiv xxxv
TABLE OF CONTE NTS
TABLE OF CONTENTS

Chapter VI
41. Relative Weight of Conflicting Interests ...... 224
42 . Social Interests and National Policies........ 226 TIIE MODERN LEGAL REALIST PERSPECTIVE
A. Extra-Legal factors .... .. .. .. .. .. .. .. .. .. .. .... .. 230
B . Types of Interests . .. . .. . . . . . . . . . .. .. . . . .. .. . . .. . 231
Chapter Outline ............ ... ............. ........... . 293
C. Means of Securing Private Interests.... . 233 46. Labels 295
D. Means of Securing Public Interests ...... 234 47. Legal Realis~·~·~·~·D·i~t~~t·J~rl~tl~·· · · · · ··· ·· ·
43. Categories of Social Interests ..................... 234
School ..... .... .................. ................... . 296
A. Social Interest in the General
48. Judicial Legal Realism ....... ................. ..... . 297
Security . . . . . . . .. . .. . . . .... . . . .. .. . . . . . . . .. . . .. . .. . .. . 235
A. Intellectual Forbears ......... .......... .. .... .. . 298
B. Social Interest in the Maintenance
(1 ) Human Law and Human
and Protection of Social Institutions.... 238
Experiences ... ............ .... ......... .. ... . 299
(1) Domestic Institution. .................. ... 238
(2) Separation of Law from Its
(2) Religious Institution ............. ..... ... . 239
Sources ............ ...... ....................... 305
(3) Political Institution.... ................... 241
B. Constructive Skeptics ............. ........... . 309
(4) Economic Institution ... :......... ........ 243
(1) Rule Skeptics ................................ . 310
C. Socia l Interest in the General Morals... 246
(2) Fact Skeptics .................. ............. .. 313
D. Social Interest in the Conservation
(3) Opinion.Skeptics .......... ........... ..... .. 316
of Huma n Resources . .. ... . .. ... ... . .... ... .... 254
C. Role of Materia l Facts .................. ....... . 319
E . Socia l Interest in the Conservation
D. Role of Experience and Social
Natural Resources ............... ........ .. ..... 257
F. Socia l Interest in the General Hea lth... 260 Advanta ge .... ...... ...... ........ ......... .... ..... . 320
G. Socia l Interest in Huma n Personality E . Role of Metalega l Stimuli ................... .. 328
(1) Formalist Concept ...... ... ..... ....... .. .. 329
and Dignity........... .... ..... ......... ..... ....... 262
H. Socia l Interest in the Socia l Life .......... 266 (2) Modern Realist Concept ...... ........ . . 329
I. Socia l Interest in the General
(3) Meta legal Fa ctors ............. ........... .. 335
Progress .. ... . . .. . .. . .. . .. . .. . . . . .. . .. . . . . .. . .. . .. . .. . 269 (a) Stimulus Set by the
(1) Cultural Progress.... .. .. ........... .... ... 270 Witnesses ... ................ ......... .. . 342
(2) Moral Progr es s . ... .. . .. . .. . .. .. .. .. .. .. .. .. . 2 73 (b) Stimulus Set by. the
(3) Economic Progress .. . ... .. .. .. ... .. .. .. ... 275 Lawyers ...... ... ..... .... ...... ......... . 345
(4) Political Progress............... ......... ... 280 (c) Stimulus Set by the
J . Socia l Interest in th e Genera l Judge's Lega l Attitudes
Aesthetics . .. . .. . .. ... . .. . ... .. . ... ... .. . ... ..... ... . 283 and Prejudices .. ......... ..... .... . 34 5
44. Adjustment of Conflicting Interests .. .. .. ... .. 286 (d} Stimulu s Set by the
45. Va lue of Functiona l Juris prudence .......... 290 Judge's Predeliclions a nd
Preconceptions ...... : .. .. ........... .. 346

XXJ(vi i
xxx vi
TABLE OF CONTENTS TADLE OF CONTENTS

(e) Stimulus Set by Historical (v) Popular and Liberal


Events and Political Concepts of Democracy . . .. 393
Precedents . . .. .. . .. . .. ... . .. . .. . .. . . . . .. 349 (b) Transformation of the
(0 Stimulus Set by Current Liberal Legal Order.......... ........ 395
Social Values and (i) Basic Equality . . . . ... . . . .. .. . . . . . 396
Economic Postulates............... 357 (ii) Democratic Republica-
F. The Law as the Product of the nism ................................ 398
Judicial Process ................................ .. 359 D. Transfonnative Content of Post-
G. Exclusion of the Legislative and Liberal Order .. . . .. .. .. .. .. .. .. .. .. . .. . . .. .. . .. . . .. 403
Executive Functions ............. .. ............ . 360 (1) Decentralization of Government.... 404
H. The Adjudicative Process as the (2) Reorganization of the Market
Prime Mover ...................................... ,. 361 Economy.......... ............................. 406
I. The Law and Its Purpose .. ................. .. 361 (3) Reconstruction of the System
49. Social Legal Realism ........ ........................ . 362 of Rights .......... .....4 ... . .. . .. •• • • • • • .. .. .. • 408
A. Source of Law ..................................... . 363 E. Function of Law .. .. . . . . .. .. . .. . . .. .. .. .. .. .. . .. .. 413
B. End or Purpose of Law ....................... . 364 51. Psychological Legal Realism . .. . . . . .. . . . . . . . .. . ... 414
C. Application of Law .............................. . 365 A. Ciitique of Judicial Legal Realism ....... 415
50. Crttical Legal Realism ... .... ....................... .. 366 B. Ciitique of Legal Ideology .. .. . . . . .. .. .. . . . . .. 415
A. Critical Legal Scholarship Scorned .... .. 368 C. Nature of Law .. . . . .. .. .... .. .... .. .... .. .... .. ... . 417
B. Polemics Against Critical Legal D. Basic Jural Relations . . .. .. . .. .... .. .... .. .. .. . 420
Realism .............................................. . 369
C. Deconstruction of Traditions of the Chapter VII
Dominant Liberal Paradigm ............... . 371
(1) Trashing the Tradition of the THE POLICY SCIENCE PERSPECTIVE
Dominant Liberal Paradigm ........ .. 371
(2) Internal Reformulation of the Chapter Outline . . .. .. . .. . .. .. . . . .. . .. .. .. .. .. .... .. .. .. 426
Dominant Liberal Paradigm ........ . . 374 52 . The Yale Approach................... ... .............. 428
(a) Rationale and Justification I 53. Policy Science Jurisprudence ............... ..... 432
for Censure ............................ . 374 A. Reaction to Apathy Towards Social
(i) The Rule of Law ... .......... .. 375 Values ...................................... ..... .... 432
(ii) Separation of B. Movement Away from Ontological
Governmental Powers ...... . 381 Jurisprudence ..... .............. ....... .......... 433
(iii) Objectivism and C. Emphasis on Human Rights .... .. ......... 434
Formalism ....... ........... ... . .. 383 D. Movement for the Universal
- (iv) Judicial Activism ....... .... .. . 384 Recognition of Social Values................ 435

J<JO\."Vi ii x:xxix
TABLE OF CONTENTS TA!lLE OF CONTENTS

54. The Policy Process and Problems (2) Religious Liberty . .. . . . . . . . .. . . . . .. . . . . .. . .. 463
About Values ........... .. .......... .................... . 438 (3) Civil Liberty . . . . .. . . . . .. . .. . . . . .. . . . . .. . .. . . .. 467
55. The Social Value "Power......... ........ .... ....... . 440 (4) Political Liberty. ... ............... .......... 468
A. Forms of Authority and Facts of (5) Economic Liberty . .. . . . . . . . .. . .. . . . . .. . . . . . 469
Control ....... ...... .............. ................. .. . 440 (6) National Liberty . .. . . . . .. . .. . . . . .. . . . . .. . . . . 47 1
B. Aspects and Referents ........ ................ . 441 F. Paradoxes of EiTective Liberty ... ........... 472
56. The Social Value "Knowledge" ... ............ .. . 442 61. The Social Value "Equality"... ............. ....... 474
A. Purposive Forms ... ............................. . 444 A. Negative Aspect ....... ......... ................... 475
(1) General Aspect .................. ........... . 444 (1 ) Jural Inequality ...... ... ................ ... 476
(2) Particular Aspect. ... , .... ...... .... .. .. ... . 444 (2) Invalid View of Equality ... ........... ... 476
B. Tendential Functions ........... .... ... ........ . 446 B. Positive Aspect..... .... ................ ... ... ..... 47 7
57. The Social Value "Respect" ........................ . 447 C. Constituent Parts................................ 478
A. Regard for Life and Limb ......... ......... ... . 448 (1) Equality and Balance Before
B. Regard for Human Personality .... ........ . 448 the Law............. ........ .................... 479
(1) Positive Phase .... ......... ........... ...... . 448 (a) Simple Type .. ....... .. .... .......... ... 479
(2) Negative Phase .............. .... ........... . 450 (b) Distributive Type... ...... ..... ....... 481
58. The Social Value "Income" ............. ......... ... . 452 (2) Equality and Balance of
A. General Aspect. ..... ....... ....... ............... . 453 Opportunity . . . . .. . . . .. . . .. . . . . . . . ... . . . .. . . .. 484
(1) Freedom from Want ............ ......... . 453 (3) Equality and Balance of Rights
(2) Conservation of Natural and Freedoms . .. . . . . . . . .. . .. . . . . .. . . . . . . . . . . 485
Resources ......... ........................... . 453 (4) Equality and Balance of
B. Particular Aspect ....... ........................ . 454 Political Value.. ... ............. ... .......... 489
(1) Immediate Necessities .. ................ . 454 62. The Overarching Social Value . .. . .. . ..... . .. . .. . 491
(2) Immediate Comforts ... .. ............. ... . 455 63. Concept of Law............. ........... ............ ... .. 491
59. The Social Value "Safety" ... .. ... .......... ....... . 455 64. Importance of the Policy Science
A. Public Protection .............. .................. . 456 Concept . . . . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . .. .. . . .. . . . . . 493
B. Public Health ...... ....... ........................ . 456 65. The End in View......... .......... ............... ...... 493
C. Social Security ....................... .......... ... 457 I
D. Peace and Order ... ... .. ................. ..... .. . 457 Selected Bibliography........................... ..... 495
60. The Social Value "Liberty" ................ ........ . 457 Books ............... .. .... ..... ....... .... .. .... .... 495
A. Relative Nature ............... .. ....... .......... . 459 Articles........ ... ... ........ ............ .. ..... .. .... 509
B. Purposive Affirmation .................. ....... . 459 Table of Cases.. ....... ................................... 5 16
C. Forms ............. ....... ........ .. ........... ..... . 460 Bibliographical Index . .. . .. . . . . .. . .. . .. ... . ... .. .. . . . 525
D. Tension or Problem Area ... ... .. ............ . 460 Subject Index..... ........... ...... ............ ....... ... 550
E. Constituent Parts ....... .. ......... .. ........... . 461
(1 ) Personal Liberty .... .. ......... ............ . 462
xl xli
INTRODUCTION TO
LEGAL PHILOSOPHY

xlii
CHAPTER I

JURISPRUDENCE, JURAL AND


NONJURAL LAWS
1. Nature of Jurisprudence
A. Proemium
B. The Problem Stated
C. The Different Schools of Jurisprudence
2. Law in General
A. Rules of Action
B. Orders of Sequence
C. Classification
D. Focal .Point of Nondeviation
3. Jural Law
A. Particular Sense
B. Collective Sense
C. Abstract Sense
(1) Precepts
(2) Ideals
4. Nonjural Law
A. Divine Law
(1) General Sense
(2) Strict Sense
B. Natural Law
(1) Historical Background
(2) Concept and Precepts
(3) Place and Function in the Legal Order
(a) Justifi.catoxy Use
(b} Oppositive Use
(c) Regulatoxy Use
(d) Interpretative Use
C. Moral Law
(l} Moral Order
(2) Moral Norms
2 LEGAL PHILOSOPHY INTRODUCTION 3

(3) Moral Law and Other Disciplines on legal philosophy far its improvement. It cannot be
(4) Moral and Social Norms gainsaid either that legal concepts are developed by
D. Physical Law legal theories. Jurisprudence also furnishes the deep-
(I) Nature and Attributes ening perspective to the study of law. It is important,
r2l Discovered Norms then, that students of law should first have a working
(3) Distinguished from Jural Law background and overview of the thinking of the differ-
(4) Distinguished form Divine Law ent schools ofjurisprudence on the nature oflaw. With
this advantage one can, with some amount of self-
confidence. begin to express or write in the idiom,
1. NATURE OF JURISPRUDENCE diction and thrust of each school of jurisprudence.
A PROEMIUM
The aversion toward jurisprudence is an indication
Jurisprudence (which should not be confused with of a constricted approach to the study of law. Justice
case law) or legal theory (as the former is sometimes Oliver Wendell Holmes, Jr., of the Supreme Court of the
called) deals with the general philosophy of law, that is United States. an influential jurisprudent in his own
to say the nature and elements of the law. The question right. strongly advised the study of the great philoso-
of the nature of the law is concerned with its derivation, phers and jurisprudents in order "to see how centuries
development and thrust. The question of the elements after their passing their ideas have become a practical
of the law deals with legal concepts which are material force controlling the conduct of human beings and how
to the legal ordering of society, namely, state. sover- much more this world is governed even today by them. "3
eignty, legal relations, legal persons, legal facts, and Professor James J. Cavanaugh aptly stated that if the
legal things. Jurisprudence, then, is concerned with foundations of jurisprudence are not taught and em-
the theoretical and technical aspects of law as a disci- phasized "the students of law would be led to the
pline. 1 These are precisely the areas where scholars appalling conclusion that these foundations do not
have differed, giving rise to various schools of thought exist, their enthusiasm wanes, they continue dispirit-
on the matter. edly, and graduate unpleasantly close to cynics."

While jurisprudence or legal theory has been rather As an introductory work. this volume will be con-
unpopular with some members of the bench and bar fined to the study of the nature of law through the
and sometimes "undervalued by the practical minded, "2 approaches pursued by the main schools of jurispru-
it cannot be overemphasized that the legal order, that dence. As such, it will not dwell on the techniques of the
is to say law and government, depends to a great extent law except when absolutely related to the question of
the nature oflaw. Neither will it elaborate on the study
1
Twlnning, W.L.. Reading the Law, 24 Valparaiso University
Law Review, 18.
2ttobnes, 0 .W., The Path ofthe Law, 10 Harvard Law Review, 3Holmes, O.W., op. cit .. 457, 478.
257, 474.
LEGAL PHILOSOPHY
INTRODUCTION 5
4

of law as a linguistic problem, e.g.• inquiry into the greaterthe difficulty of analyzing it. And so it is with the
appropriate choice of words to prevent ambiguity of term "l~w". There are various theories about the origin,
expression. meaning of discourse independent of what development and thrust of the law. It is obvious that it
the legislators and judges intend to convey. investiga- would be misleading to look at the problem from a single
tion of the meaning carried by legal terms and legal point ofview or to consider as a whole the different views
texts. There is. of course, no question as to the expressed on the matter. As someone has aptly said.
influence oflanguage on law since there is a strong link "there would be no prudence injuris in picking out just
between law as a discipline and language as a means of a single view of the nature of the law without taking into
communication. After all. law is a type of language.4 consideration the development introduced by the other
But the elements of law and language of law will not be juristic schools." To be in any way adequate. there is
considered here so as not to confuse the primary need to orchestrate - if it may called that- the sounds
of the different schools ofjurisprudence concerning the
purpose of this volume.
nature of the law. Only on the basis of a systematic
B. THE PROBLEM STATED
understanding of the essence of the di!Terent theories.
rationalizing di!Terences whenever possible, emphasizing
In jurisprudence, we do not speak of"a law" but of harmony. making allowances for the areas where they
"the law" or simply "law". The question is not what a law overlap. and balancing the ideas that have led to undue
is nor what the term law sigrJfies in the collective sense. emphasis in one direction or another. may the nature
The answers to these questions will not yield the true of the law be fully appreciated. After all. jurisprudence
picture of the legal order. builds upon the achievements of the past and careful
examination of history is essential to its development. "s
The problem that has continued to preoccupy
philosophers and jurisprudents alike is still the same The impatient may see nothing but confusion in
question which Socrates asked his students a long. the views held and expressed by the different schools of
long time ago. namely. "What is the nature of the law?" jurisprudence on the question of the nature oft.he law.
Much later. Cicero raised the companion question. Others consider these perspectives as related aspects of
namely, "Why is jurisprudence worth studying?" There just one great concept - Law. And these views should
is no question that the more fundamental a term is the be considered in this light for the law (to borrow a very
pleasing phrase) is indeed a many splendored thing.
Like the facets of a diamond. the different perspectives
4rhe study of the role of language In law was stimulated by
Ludwig Wittgenstein (1880 -1961 ) In his TRACTATUS LEG1co as to the nature of the law combine together to give it a
PH1L.OSOPH1cus. Wittgenstein analyzed verbal expression and the use fascinating brilliance.
of words as a means to describe reality in law. Two respected
jurisprudents. namely, Glanville Williams, In his Language and the
Law, 61 Law Quarterly Review. and Walter Probert. In his Word
Consciousness: Law and the Control ofLanguage, 23 Case Western 5 Morrison, W.L.. Some Myths About Positivism, 68 Yale Law
Reserve Law Review. devoted much of their time in this specialized Journal. 212, 2 13.
endeavor.
6 LEGAL PHILOSOPHY INTRODUCTION 7

C. THE DIFFERENT ScHOOLS OF JURISPRUDENCE (e) The realist school ofjurisprudencewhich takes
the nature of the law on the basis of the on-going
The various schools of jurisprudence see law in
experiences and inter-experiences of the people. This
different lights. They have their own points of observa-
juristic school asks the question: Is the law verifiable
tion. Thus, based on differences in imagery and
in the practical life of the people?
perspective, the philosophers and jurisprudents who
have inquired into the problem of the origin, develop-
ment and thrust of the law may be separated into (f) The policy science school of jurisprudence
which looks at the nature of the law in relation to the
various schools, as follows:
degree of success of society in the creation, clarification
(a) The historical school of jurisprudence which and realization of social values. The question this
juristic school raises is: What is the basis and the limits
appraises the law in the context of the common con-
of global, regional, and national legal orders in relation
sciousness of a group of people. The question this
to social values?
juristic school seeks to answer is: Where did the law
come from and how did it evolve? 2. LAW IN GENERAL

(b) The teleological school ofjurisprudence which Generally speaking, the term "law" means any rule
thinks of the nature of the law in terms of the moral and of action or order of sequence from which "any beings
rational nature of humankind. This juristic school whatsoever either will not. or cannot. or ought not to
understands the law as strictly connected with deviate.6
morality and naturality. The question emphasized by A. RULES OF ACTION
this juristic school is: What is the telos of the law?
Arule ofaction is any warrant. instruction. measure,
(c) The positivist school of jurisprudence which regulation, or decision governing any act, conduct,
considers the law as a conscious norm of the state transaction, or proceeding, including its consequences.
backed by its authority and force. For this juristic A conspicuous ·e xample is a traffic regulation promul-
school the law is not inherently moral or natural. For gated in accordance with a city or municipal ordinance.
this school ofjurisprudence the problem is: What is the Another obvious illustration is a statute enacted by the
distinctive structure and content of the law. 1 gl.slature pursuant to its legislative powers in the
constitution.
(d) The functional school of jurisprudence which
views the nature of the law in terms of the jural There are two important points that should be
postulates, social interests and national policies of the noled insofar as rules of action are concerned. First.
people. The question which this juristic school raises
is: How does the law work in weighing or adjusting the
competing individual and public interests? 6Rl!T11ERFORD, T., INSTITIJTES OF NAruRAL LAw. 1. Second American
J•..dltlon. New York.
8 LEGAL PHILOSOPHY INTRODUCTION 9
conduct is included in the definition. This is necessary do not depend on the human will but operate inexorably
for in the legal order there are certain conduct, e.g. admitting of no exceptions. Thus, a rule of action differs
forbearance. which means intentional refraining from from an order of sequence in that the former is relative
action, that are productive of distinct legal effects and while the latter is absolute.
consequences. In other words. forbearance is fully
significant as a positive act. The other point is that even c. CLl\SSIFICATION
though rules of action have been and are being violated
they cannot be broken. in the sense that the word is From what has been stated. it follows that there are
used in the vernacular. Even though rules of action are four distinct classes of rules of action and orders of
repeatedly violated or remain unobserved they. never- sequ ence. The first includes rules of action and orders
theless. continue to apply with their sanctions in full of sequence which necessarily determine the activities
force and effect. Legally speaking. though. rules of of human beings. Under the second group are comprised
action may be broken for they are always subject to rules of action and orders of sequence which necessarily
repeal or amendment by the body constitutionally determine the motions and even the instincts of dumb
authorized to do so. or they may be declared null and creatures. The third class embraces rules of action and
void when they are contrary to the constitution. orders of sequence which necessarily determine the
origin and growth of living organisms. The remarkable
B. ORDERS OF SEQUENCE thing about this particular class of rules and orders is
lhat it governs the development of all forms of life,
On the other hand. an order of sequence is any from the simplest to the most complex. And fourth is the
system of arrangement or consecutiveness. or any class where rules of action and orders of sequence
uniformity of a given group of phenomena. While this which necessarily determine the movements and
category is mainly concerned with physical nature. it courses of inanimate bodies or masses are included.
cannot be gainsaid that an order of sequence is also law,
such that any deviation therefrom results in incon- D. F OCAL POINT OF' NONDEVIATION
venience. damage, or injury. The numerals or integers
"one" (1) to "zero" (0) constitute a good example of an On the basis of the general conception of the term
order of sequence. This system of numerical arrange- ''law" it is noticeable that a ll rules of action and orders
ment or consecutivess of the positional value of num- of sequence are jussive in character. This means tha l all
bers cannot be unilaterally varied without harmful C' ncerned must cease and des ist from cerlain ac tivities
consequences. An example of a uniformity of physical or conduct which otherwise would result in some loss.
nature is the pull or drag of gravity. Uniformities of damage. or injury, whether directly or indirec tly.
nature can be harnessed to good use but no human
being can violate or change any order or norm of There are three types. namely, the "will-not" cat-
physical nature without harmful results. For one thing. 1·gory of nondeviation. th e "cannot" ca tegory of
they are immutable for they do not alter with time and 11ondeviatio n. and th e , "ought-not" category of
place. And, for another thing, they are absolute for they 11ond vialion .
LEGAL PHILOSOPHY
INTRODUCTION 11
10
that no such violation or disregard is possible without
These types of nondeviation are similar in one
the application of their sanctions.
obvious respect. But they are different from one an-
other. In the "ought-not" category ofnondeviation. there
seems to be an alternative to action. However, the
The "will-not" category of nondeviation means that
apparent alternative is abandoned because it is the
there is a determination to abide with. or avoid violation
better part of prudence to follow or comply with the
of, the rules of action and orders of sequence. Therefore.
rules of action and orders of sequence rather than
this force carries a connotation of future conformity.
refrain from following or complying with them.
prospective agreement. or eventual compliance.
3. JURALLAW
The "cannot" category ofnondeviation means that
there is no other way but to obey or comply with the The term "law" in its jural sense has three distinct
rules of action and orders of sequence. no matter how s enses. namely. the particular. the collective, and the
much the desire to act otherwise may be. This is abstract.
indicative of a present or actual condition of conformity.
A problem arises in connection with this category of The first and second uses of the term "law" com-
nondeviation. As stated before. there are rules of action prise what has been called "lawyer's law". although this
and orders of sequence that have been continuously is not a happy description. But in jurisprudence. they
violated. Thus. it would appear inconsistent to say that are better referred to as enacted law.
such rules and orders "cannot" be violated. To analyze
the question further in relation to the problem of the A. PARrlCULAR SENSE
legal ordering of society. how can the institution of Thejural term "law" is used in the particular sense
penitentiaries be explained if persons "cannot" deviate when it is preceded by the indefinite article. viz.• a law.
from rules of action and orders of sequence. Perhaps. In this sense, the term "law" is used to refer to batas, ley,
then. the "cannot" category of non-deviation should be legge, lex, nomoi, loi, and gezetz.
dropped. But it is obvious that this would be foolhardy.
The "cannot" category of nondeviation is precisely the It will be noted that in the particular sense of the
force which gives the legal order the authority to try and term "law" the reference is to a statute. which is the
punish lawbreakers. Its significance lies in the fact that written enactment of the legislative branch of the
no matter how often or how long rules of action and government composed of definite provisions for definite
orders of sequence are violated their efficacy are not situations or states of facts to which certain incentives
diminished. let alone changed. Such rules and orders and/or sanctions have been attached as means of
continue to exist with all their sanctions in force. It is, enforcement. Incentives or sanctions may assume dif-
therefore. not a question of whether rules of action and ferent forms. A legal incentive is a stimulus or motive
orders of sequence "cannot" be violated or ignored but developed through some extraneous influence operat-
12 LEGAL PHILOSOPHY INrRODUCTION 13

Ing on the individual members of society. Some exam- An example of an opinion given by a jurist is the
ples of legal incentives are tax exemptions. tax deduc- "dangerous tendency" rule posited by Justice George
tions. government loans. condonation of accrued taxes, Malcolm of the Supreme Court of the Philippines. It was
government subsidies. benefits and rewards. A legal enunciated in the case ofPeople v. Perez, 9where the Court
sanction, on the other hand, is a coercive intervention explained that "there is a seditious tendency in the
or an eventual punishment annexed to a violation of a words used which could easily produce disaffection
rule or regulation. Some examples of legal sanctions among the people with a disposition to remain loyal to
are fine, imprisonment, destierro. loss or suspension of the government and obedient to the laws and tending to
certain legal privileges, assessment of damages. cost disturb the peace of the community and the safety of the
and interest. government." For another example of an opinion given
by a jurist is the "clear and present danger" rule posited
In the particular sense, the term "law" is also used by Justice Holmes of the Supreme Court of the United
to refer to any rule or opinion given by an agency of the States in Schenck v. United States, 10 and amplified in a
state or by a jurist. or by an authorized official of the series of brilliant opinions in Gitlow v. New York, 11
government. In this sense, the term "law" refers also to Pierce v. United States. 12 and Abrams v. United States.13
any contract or agreement. These covenants are binding In the case of Schenck v. United States. the defendants
in character and so the contracting parties are said to mailed circulars charging in very impassioned lan-
be solemnly making "law" for themselves, provided guage that conscription into the U.S. Army was both
that such agreements are not contrary to law, social despotic. and constitutionally suspect and urged the
interest or national policy.7 people to violate the statute. Justice Holmes. in his
dissent. stated that "the character of every act depends
An example of a rule or regulation formulated by upon the circumstances in which it is done... , The
an agency of the state is a rule of civil or criminal question in every case is whether the words are used in
procedure promulgated by the Supreme Court pursu- such circumstances and are of such a nature as to
ant to its rule-making power. There is no doubt that it create a clear and present danger that they will bring
is a law. Another example is a regulation issued by the about the substantive evils that Congress has a right to
Central Bank in accordance with its charter and duly prevent," 14 Under this test, words or acts are not
published in the Official Gazette. a government publi-
9 85 Phil. 599.
cation. Whiletheyarenotenactments of the legislature.
1 249 U.S. 46, 39 S.Ct. 247, 63 L.Ed. 470.
and so not statutes properly so-called, they are never- 11268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138.
theless laws. 8 12252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 360.
13250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173.
14249 U.S. at 52. In Abrams v. Untied States , Justice Holmes
restated his Schenck test as follows: "The United States constitu-
7Article 1306, Civil Code of the Philippines. tionally may punish speech that produce or is intended to produce
8PanAmerican World Airways v. PAA Employees Association. a clear and imminent danger that it will bring aboutjorthwtthcertaln
G.R No. L- 18345; People v. Que Po Lay. No. L-6751; United States substantive evils' that the United S tates constitutionally may seek
v. Molina, 29 Phil. 119. to prevent." OtaHcs supplied to emphasize the changes).
14 LEGAL PHILOSOPHY INTRODUCTION 15

punished because they are cntical of the government stated that "in each case [courts] must ask whether the
since there are no ideas, whether religious. political. gravity of the evil. discounted by its improbability.
economic, or scientific. that are immune from dispute justify such invasion of free speech as is necessary to
and reassessment. They are punished because they avoid the danger." 18 The United States Supreme Covrt.
have passed the farthest limits offree expression for the where the Dennis case was later brought on appeal, 19
words used or acts done incite people to act unlawfully, speaking thru Chief Justice Fred Vinson, held that the
which is the very thing that Congress is justified in situation with which ... Holmes [was] concerned [bore]
preventing. is Thus. if the words used or the acts done little relation to any substantial threat to the safety of
are in such circumstances and are of such a nature as the community. [Holmes] was not confronted with any
to create a clear (not doubtful) and present (not remote) situation comparable to the instant one-the develop-
danger to society. then. such utterances or acts are ment of an apparatus designed and dedicated to the
punishable. overthrow of the government in the context of crisis
after crisis." The Supreme Court then adapted the
But although the Holmesian clear-and-present- Handian statement verbatim saying, "more we cannot
danger test has survived two world wars already, it has expect from words. 20
been the subject of diverse discussions and comments.
One view extends the test to the entire range of civil Since the Dennis case, many so-called second string
liberties. The other view believes that the application of Communists have been prosecuted for advocating
this "felicitous phrase" (as this view characterizes it) is revolution while the Korean War was going on, con-
not applicable as a formal constitutional test. In any straining the courts to the conclusion that the danger
case. it has undergone further refinement notably in of utmost gravity and likelihood of the danger or evil
cases involving conspiratorial. clandestine and under- justified the invasion of the freedom of expression for
ground activities to overthrow the government by force the purpose of avoiding the danger or evil. 21
and violence. Learned Hand, writing the decision of the
Court ofAppeals of the United States in the subsequent For still another example of an opinion of a jurist
case of United States v. Dennts 16 took into consideration is the ..no immediate decision" rule in administrative
the authority and reach of the Holmesian clear-and- law posited by Justice Antonio Villareal of the
present-danger rule, especially on the question of Supreme Court of the Philippines in the case of
when the danger is to be deemed ..present".1 7 Hand Javellana v. La Paz Ice & Cold Storage Co.• Inc.22 There

15Bridges u. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed.


192; West Virginia State Board of Education u. Barnette, 319 U.S. 18183 F.2d 212.
19Dennts v. United States, 341 U.S. 474, 71 S.Ct. 857, 95
624, 63 S.Ct. 1718, 87 L.Ed. 1628; Pennekamp u. Florida. 328 U.S. L.Ed. 1137.
331, 66 S.Ct. 1029. 90 L.Ed. 1249; Craig u. Haruey. 331 U.S. 367, 20fbfd., 501.
57 S.Ct. 1249. 91 L.Ed. 1546. 21 United States v. Lightfoot. 228 F. 2d 861; Wellman u. United
16183 F.2d. 201, 212. States, 227 F.2d 757; Yates u. United States, 225 F.2d 146.
17See Whitney v. Califonia, 274 U.S. at 374. 2264 Phil. 893, 898-899.
16 LEGAL PHILOSOPHY INTRODUCTION 17

it was held that the various motions for postponement use of the term "law" with reference to particular laws
amounting to a systematic method of blocking or delay- from a determinate source or origin is Law of the Phil-
ing the ordinary course of the hearing of an application ippines.
for a certificate of public convenience will justify the
grant of a provisional permit to operate the public The classification of enacted law in a specific and
service applied for. The "no immediate decision" rule logical manner is based on its nature and purpose.
has been applied in subsequent cases.23 taking into consideration the character of the jural or
legal relations affected. that is to say whether such
An example of an opinion of a jurisprudent is a relations are public or private in nature. Therefore.
commentary on a particular branch oflaw. The authority there are three divisions: 1) laws defining rights and
of an opinion or commentary is based on the scholar- obligations. 2) laws defining remedies and procedure.
ship of the commentator. It is. of course. presumed that and 3) laws defining rights and obligations in extra-
courts take into consideration only the opinions and ordinary times. Each of these divisions may affect either
commentaries of highly qualified persons. public or private relations. that is to say public when
the legal rules regulate the relations of the state with the
An example of an opinion of an authorized official individual members of society and vice-versa, and
of the government is a ruling or opinion of the Secretary private when the legal rules affect the relations of
of Justice. As the chief legal officer and legal adviser of individuals with one another. This means that rights
the government his opinions are generally followed, and obligations are worthless without the concommitant
especially in the executive and administrative branches rules and regulations to protect or enforce them. And.
of the government. of course. there would be no reason for the existence of
the latter without the former.
B. COLLECTIVE SENSE
The first division is rightly called substantive law.
The word "law" is employed as a collective or
Here there are two kinds. the substantive private law
aggregate term when it refers to the gross or bulk of and the substantive public law. Under the former are
specific or particular laws relating to one subject- four types: 1) the law of persons and family relations,
matter. or when it refers to the laws obtaining in a given which defines the rights and obligations of persons
society. As an example of the use of the word "law" living in a politically organized society regarding their
referring to the totality of specific laws relating to one personal and family relationships, 2) the law of prop-
subject-matter is Civil Law, or Commercial Law, or erty, defining the rights and obligations of persons
Remedial Law. or Criminal Law. As an example of the living in a politically organized society in relation to
property and property rights. including classes of legal
23Biflan Transportation Company Inc. v. Prieto, G.R. No. L - things and proprietary concessions. 3) the law of obli-
5137: Ablaza Transportation Company Inc. v. Ocampo, 88 Phil. 412, gations and contracts. which defines the nature and
Veneracion v. Congeon Ice Plant & Storage Inc., G.R. No. L-31213. source of claim-ct u ty. privilege-inability. power-liability
18 LEGAL PHILOSOPHY INTRODUCTION 19

and immunity-disability relationships as well as rights The third division is rightly called special law. The
and obligations arising ex ques deleto. that is neither laws classified under this group refer to the armed
from delicts nor from contracts but from the analogy of forces of the government and to the relations among
a delict, and 4) the law of trade and commerce, defining sovereign states. Under this division are three types: 1)
rights and obligations concerning land, sea and air military law which deals with the system of rules and
traffic, shipment and business transactions as well as regulations for the creation, government. and discipline
ships and vessels. their crew and navigation. Under the of the armed forces, its speciality being found in the fact
substantive public law are three types: 1) constitutional that it applies only to those in actual service in the
law, which deals with rights and obligations concerning armed forces in addition to the ordinary laws to regulate
the fundamental or supreme law of the land, more their conduct at all times and in all places where they
particularly the organization, powers and functions may be stationed in the performance of their duties.
arising from the relationship of the state to the people 2) martial law. which deals with the system of rules and
of the state. 2) public administrative law, which is the regulations applied by military power in times of war
body of legal rules defining rights and obligations (and is called martial law properly so called) or in times
concerning the operation of the government both in its of grave public danger (and is properly called qualified
departmental or administrative functions and the martial law), its speciality being found in the fact that
functions of public officers in relation to private persons it applies to all persons regardless of whether they are
as well as the law on elections, and 3) criminal law, private citizens or in the service of the armed forces a d d
which deals with the rights and obligations in connection ceasing as soon as the need for it can be dispensed with,
with crimes. criminals and punishments. that is to say when the situation has already turned to
normal. and 3) public international law, which deals
The second division is rightly called adjective law or with the system of rules. regulations and principles
remedial law. Here there are two kinds, the adjective which govern the relations between sovereign states as
private law and the adjective public law. Under the well as those among their citizens or subjects growing
former. there are two types: 1) the law on civil actions, out of such relationship and such other entities, not
which deals with the rules by which a party prosecutes states. which are endowed with international person-
another for the enforcement or protection of a right or ality, its speciality being found in the fact that it
the prevention or redress of a wrong, and 2) the law on pertains to relationships connected with states and
special proceedings which deals with the processes international entitles.
which are not pursued in the ordinary manner or
procedure. Under the adjective public law is the law of C. ABsrRAcr SENSE
criminal procedure which deals with the rules defining The term "law" is used in the abstract or theoretical
legal remedies and procedures in crtminal actions sense when it is simply referred to as "law" without the
whether they take on the nature of prosecutions of definite article preceding it, or when it is preceded by
public crimes or prosecutions of prtvate crimes. the definite article, viz., the law.
20 LEGAL PHILOSOPHY INTRODUCTION 21

This sense is brought out clearly in the languages facts to which certain definite incentives or sanctions or
which have no philological problem on the matter. The both are attached as means of enforcement.
abstract or theoretical sense of the term "law" is indica-
tive of kautusan. derecho, di.ri.tto,jus. norrws, droit, recht. Principles are authoritative premises for legal and
The central theme. then, of the legal order in the juristic reasoning when a question not governed or
adjustment of human relations is kautusan not batas, covered by a rule arises for adjudication. Unlike rules,
derecho not ley, diritto not legge,jus not lex, norrws not principles do not contain incentives or sanctions.2 6
norrwi, droit not loi., recht not gezetz. Thus. it is possible Their importance lies in the fact that they may become
that one may respect the law and yet object to a the basis of rules. concepts. and standards.
particular statute.24
Concepts are general categories into which specific
As used in this context, the law is made up not only cases and things may be classified. When a particular
of a body of precepts but also a body of innate (tradi- state of facts or particular things are classified under
tional) and received (borrowed) ideals. The law becomes the appropriate concept, then, the rules. principles and
workable and effective due to this combination. standards of that concept become applicable. 27
Examples are the legal concepts of possession, agency.
(1) Precepts contract. intention. consideration. negligence. etc. This
The body of precepts deals with prescribed direc- element of the law is important because it sets the
tions arid trends concerning a given subject matter. materials of the law in proper order and symmetry,
Precepts are not, of course, static. They are continually reducing the mass of rules into manageable size.
reshaped or given new contents or applications. There
are precepts defming rules, precepts defining princi- Standards are models or criteria to test or measure
ples, precepts defining concepts. and precepts defining the validity ofspecific acts for the purpose of determining
standards. 25 responsibility in the absence ofspecific rules. Standards
are more flexible than either rules or concepts. making
Rules are laid down by legislative flat. Rules define them applicable relatively, that is to say according to
or set the farthest limits of human activities and the circumstances of each and every case. Some
actions. Acts done or performed within these limits are examples are the standards of fair competition.
properly called lawful or legal acts. These rules are diligence (bonae pater familiae). and good faith (bona
composed of definite provisions for definite states of fidei).

The standard of fair competition condemns acts


24PoUNo, R., I Jurus rRuDENCE, 12. West Publlshing Company, characterized by force, intimidation. deceit, machina-
St. Paul, Minn.
25Pound, R., My Philosophy ofLaw, 256, in MY PHILOSOPHY oF 26Ibid.' 266
LAw, Credos of Sixteen American Scholars. Boston Book Company, 27PoUNo R. ThE TllSK OF mE LAw, 46, Franklin and Marshall
Boston. College Press, Lancaster, Penn.
22 LEGAL PHILOSOPHY I NTRODUCTION 23

tion, or any other unjust, oppressive, or high-handed The standard of good faith (bona_fideO has for its
methods giving rise to a cause of action by the person essence the honest belief in the validity of one's right,
who thereby suffers damage.28 This is necessary due to ignorance of a superior claim and absence of intention
a wide variety of interests in property and business to overreach another.3 1 Indeed, it is one of the criteria
transactions. The essence of fair competition as a in the observance of rightful relationships between
standard lies then in giving free and equal opportunity individuals and for the stability of society.32
to all in order to make a choice or decision and other
transactions and enterprises or any lawful calling (2) Ideals
without restraint or intervention from anyone other There are four types of innate (traditional) and
than for causes which the law accepts and recognizes. received (borrowed) ideals, namely.juristic ideals, ethical
ideals, political ideals, and economic ideals.
The standard of diligence (bonae paterfamiliae) is
designed to minimize or prevent wrongful acts or omis- By juristic ideals are meant rational theories which
sions.29 Thus, instead of considering the state of mind may reshape or change the contents of legal rules and
of the defendant, it is a question of what a reasonable legal precepts. An example is the juristic ideal of
person would have done under the circumstances. "or dered liberty" constructed by Justice Benjamin
Negligence is then simply the absence of diligence. Cardozo of the Supreme Court of the United States in
Implicit in this standard is the imaginary conduct of the the case of Palko v. Connecticut 33 According to this
discreet paterfamilias of Roman law.30 When there is juristic construct or ideal, "the rights guaranteed by the
no provision of law as to the kind of diligence to be constitution to the people are valuable and important
observed in the performance of obligations, like ex- b ut not all of them are of the very essence of a scheme
traordinary diligence in the transportation of goods and of ordered liberty." This means that there are certain
passengers. then the diligence or care of a good father rights that can be "withdrawn or abolished and yet to do
of a family is required. The civil law concept of the so is not to violate the principle ofjustice so rooted in the
standard of "a good father of a family" is the counterpart tradition and conscience of our people as to be ranked
of the legal standard of the "reasonable man" in English as fundamental. "34 Some examples are immunity from
common law.

31 Bernardo v. Bernardo, 96 Phil. 202.


28Artlcle 28, Civil Code of the Philippines.
32Artlcle 19. Civil Code of the Philippines. It provides that
29Article 1173, Civil Code of the Philippines. It provides that
evei:y person must, in the exercise of his rights and in the perform-
the fault or negligence of the obltgor consists in the omission of that
a nce of his duties, act with justice, give evei:yone his due, and
diligence which ls required by the nature of the obligation and
observe honesty and good faith.
corresponds with the circumstances of the persons, of the time and
33302 U.S: 319, 58 S.Ct. 149, 82 L.Ed. 288.
of the place.
34Brown v. Mississippi. 297 U.S . 285, 56 S.Ct. 46, 80 L.Ed.
30Picart v. Smith. 37 Phil. 809.
394: Snyder u. Massachusetts, 291 U.S. 105, 54 S.Ct. 330, 78 L.Ed.
674: Herbert v. Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270.
24 LEGAL PHILOSOPHY INTRODUCTION 25
compulsory self-incrimination qualified by the need to sion. 42 The juristic construct or ideal of ordered liberty
give protection against physical or mental torture, the is thus useful in determining whether a particular right
immunity from prosecution except as a result of a of a person living in a politically organized society is
criminal complaint or criminal information, the immu- absolute or not. It was applied inMalinskiv. New York, 43
nity from double jeopardy qualified by the equal right where Justice Felix Frankfurter stated that the due
that a case be free from substantial legal error or process of law principle has a "potency different from
unlawful acquittal. 35 In different words, these rights and independent of the specific provisions contained in
can be withheld or even removed and still maintain a the Bill of Rights" because "there are some safeguards
free body politic with a fair and enlightened system of which though enumerated in the Bill of Rights are not
justice. But those found to be implicit in the concept of essential to the maintenance of a fair and enlightened
"ordered liberty" are basic to a free society, e.g .• freedom system of justice while others are at the very base of a
of speech, 36 freedom of the press,37 free exercise of free society that the protection of the due process oflaw
religion, 38 the right of peaceable assembly,39 the right principle will lie even when such rights are omitted in
to counsel.40 the right to fair trial and condemnation the Bill of Rights."
only thereafter. 41 and the right of privacy against intru-
By ethical ideals or constructs are meant rational
theories or syntheses of moral responsibility and de-
35Mauricio, L.. The Needfor a New Approach to the Doctrine of
cent individual and group behavior where the aim is
Double Jeopardy, 29 Philippine Law Journal, 471.
36Planas v. Gil, 67 Phil. 62; Herndon v. Lowry, 301 U.S. 242, toward higher moral grounds. In particular. ethical
259, 57 S .Ct. 732, 81 L.Ed. 1066; DeJonge v. Oregon, 299 U.S. 353, ideals or constructs refer to what human conduct and
364, 57 S.Ct. 255, 259. 81 L.Ed. 278, 283; United States v. Bustos .. expectations should be. They are important as potential
37 Phil. 731 . sources of legal rules and legal standards. An example
37People v. Dava. CA-G .R No. 1299, 40 O.G. 5th Suppl.,
79;Grosjean v. American Press Co.. 297 U.S. 233, 56 S .Ct. 444, 80
is the ethical ideal ofloving one's neighbor set by Jesus
L.Ed. 660: Near v. Minnesota. 283 U.S. 687, 51 S.Ct. 625, 75 L.Ed. Christ. This ethical construct may well be the basis of
1367; United States v. Perfecto, 43 Phil. 58. the tort rule that a person must not cause damage or
38People v. Fernandez, CA-G.R. No. 1128-R, 46 O.G. 1089; injury towards another by taking reasonable care to
United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148;
Aglipay v. Ruiz, 64 Phil. 201; Hamilton v. University ofCalifornia. 293
avoid acts that will likely cause damage or injury which
U.S. 245, 262. 55 S .Ct. 197, 204, 79 L.Ed. 343. can reasonably be foreseen. Another example is the
39Primicias v. Fugoso, 80 Phil. 71; DeJonge v. Oregon. supra .. ethical ideal that no one can enrich oneself at the
n. 36; H erndon v. Lowry. supra, n. 36; United States v. Bustos, 37 expense of another. In property law. it is embodied in
Phil. 731 .
40people v. Holgado, 85 Phil. 752; William v. Kaiser, 323 U.S.
471. 65 S.Ct. 363, 89 L.Ed. 398; Powell v. Alabama. 287 U.S . 45, 53
S.Ct. 55, 77 L.Ed. 158, 84 AL.R 527. 42woifu. Colorado, 383 US. 25, 69 S.Ct. 1359, 93 L.Ed. 1782;
41 People v. Abad Santos, 76 Phil. 744; Blackmer v. United Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256. 90 L.Ed. 1453;
States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375; Paraiso v. United A lvarez v. Court ofFirst Instance, 64 Phil. 33; United States v. Rey es,
States, 207 U.S. 368, 28 S.Ct. 127, 52 L.Ed. 249; Scott v. McNea~ 20 Phil. 4 67 .
154 U.S. 34. 14 S .Ct. 1108, 38 L.Ed. 896. 43324 U.S . 401. 89 L.Ed. 1029, 63 S .Ct. 781.
,.
26 LEGAL PHILOSOPHY INTRODUCTION 27

the rule that everyone who acquires or comes into the public has no more right, without his consent, t o
possession of something at the expense of another invade the domain ofthose rights which it is necessarily
without just or legal ground must return the· same.44 to be presumed he has reserved than he has to violate
the valid regulations of the organized government un-
By political ideals or constructs are meant rational der which he lives." Rousseau's political ideal was also
theories or syntheses for the fuller direction of the applied in MetropoUtan Seroice v. Paredes, 47 where the
political processes and for the maintenance of the Supreme Court ofthe Philippines stated that sovereignty
general welfare and security of the people. An example is "derived from the will of the people by the people and
is the political ideal of un moi commun constructed by for the people-a representative government through
Jean Jacques Rousseau. The concept of the general will which they have agreed to exercise the powers and
is the counterpoise of the decision of any group in discharge the duties of their sovereignty for the common
society and is directed toward the general welfare. good and welfare. In so agreeing, the citizens have
" Rousseau posited the idea that the general will resides solemnly undertaken to surrender some of their private
in the people. Since the general will is directed toward rights and interests which were calculated to conflict
the common good, then. it is always just and should with the higher rights and larger interests of the people
prevail for the voice of the people is indeed the voice of as a whole. represented by government thus established
God." 45 Thus, the function of the legal order is to bring by themselves."
all particular purposes. intentions, choices. and
determinations to conform to the general will. This By economic ideals or constructs are meant ra-
political construct envisages the surrender of a portion tional theories or syntheses for the efficient development
of the autonomy of the people for the good of the of the economy. In particular. they refer to economic
collective whole, in return for the protection of the goals for the betterment of supply oflimited goods and
rights which they have retained. This political ideal has services and their distribution to meet the enormous
influenced the development of the concept of popular or needs of the people. An example is the economic ideal
reciprocal sovereignty. It was utilized inPavesichv. New of a person's freedom to enter into a contract in relation
England Ufe Insurance Company. 46 In the Pavesich to his or her own labor for the purpose of earning a living
case. the court ~tated that "the individual surrenders to limited only by public welfare and individual health.
society many rights and privileges which he would be This economic ideal was constructed by Justice Holmes
free to exercise in a state of nature, in exchange for the in his vigorous dissent in Lochner v. New York. 48 Jus-
benefits which he receives as a member of society. But
he is not presumed to surrender all those rights, and
4779 Phil. 819.
48198 U.S. 45, 25 S.Ct. 539. 49 L.Ed. 937. J ustice Holmes ls
quoted at length: "This case Is decided upon a n economic theory [the
44Article 22. Civil Code of the Philippines. la issez-faire theory that the s ta te should allow free ma rket to exist
4 5RoussEAu. J., D1scouRSE ON PoLmCAL EcoNoMY, 253, 255, 260. without interference form state regula tion ] which a large part of the
Everyl_l!a n 's Library Edition New York. country does not entertain. If i t were a question of whether I a gree
4 6122 Ga. 190, 50 S.E. 68. 69 L.R.A 101. with tha t theory. I would desire to study i t further and Jong before
28 LEGAL PHILOSOPHY INTRODUCTION 29

tice Homes' opinion has since gained ascendancy, A. DMNE LAw


starting with the case of West Coast Hotel v. Paris~ 49
This type of nonjural law is understood in two
senses, the general and the strict.
4. NONJURAL LAW
From what has been stated, there are laws in the (1) General Sense
jural sense just as there are laws in the nonjural sense.
Broadly speaking. divine law is the entire system of
Since there is no word which expresses the opposite of
perfection which God, in His infinite wisdom, has
"jural" and no better term has been proposed, the
imprinted in the whole of nature to govern its operations.
rath,er inelegant "nonjural" is used, as one writer puts
The ancient Roman jurisprudents fondly called itjus
it, to identify laws in the metalegal sense. Thus. in the
divinum
nonjural sense there is a distinction between the con-
notations of the term "law" in such branches oflearning
j ..
We are told that there are thousands of galaxies
as theology, metaphysics, ethics, and physics. There
in the universe. every which one occupying an
are, therefore, four kinds of nonjural law, namely,
immense expanse in both time and space. The Milky
divine law. natural law. moral law, and physical law.
Way alone, the southern edge of which is seen on a clear
night. has been measured from edge to edge at about
making up my mind. But I strongly believe that my agreement has 300,000 light years. The solar system, of. which the
nothing to do with the right of a majority to embody their opinion In planet Earth is but one of nine known planets orbiting
law. It Is settled by various decisions of this Court that state the sun, is only a grain of sand, as it were, at the
constitutions and state laws may regulate life In many ways which
.. . we might think Injudicious. orwhlch . .. Interfere with the liberty southern edge of the Milky Way. While the grand nature
of contract. Sunday laws and usury laws are ancient examples. The of the cosmos seems to be beyond the human mind,
liberty of a citizen to do as he likes so long as he does not Interfere though its tremendous contents and dimensions are
with the liberty of others to do the same ... Is Interfered with by
every state or municipal Institution which takes his money for little by little pierced with the instruments and tech-
purposes thought desirable, whether he likes It or not. The 14th niques of science, there is no question of its whole-
amendment does not enact Mr. Herbert Spencer's Social Statics ness as the psalmist of long ago testified:
[that every person Is free to do which he wiJls, provided such person
does not Infringe the equal freedom of another). The decision !he heavens declare the glory of God:
sustaining an eight-hour law for millers Is still recent (Holden u. Hardy,
169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780). Some of these laws and the firmament sheweth his handy
embody convictions or prejudices which judges are likely to share. work."50
Some may not. But a constitution Is not Intended to embody a
particular economic theory, whether of paternalism and the organic
relation of the citizen to the state or of laJssez-falTe. It Is made for (2) Strict Sense
people of fundamentally different views, and the accident of our In this connotation, divine law means the law of
finding certain opinions natural and familiar. or novel and even
shocking. ought not to conclude our judgment upon the question of religious faith which concerns itself with the concepts
whether statutes embodying them conflict with the constitution."
(Words in brackets [ I supplied).
49300 U.S. 379, 81 L.Ed. 703, 57 S.Ct. 578.
50Psalm xix: l.
30 LF.GAL PHILOSOPHY INTRODUCTION 31

of sin and salvation, of death and life, of the temporal kind is religious. The second Commandment which
and the spirttual. It is generally agreed that in this prohibits any kind of idolatry is also religious in nature.
sense, divine law is revealed by God to humankind It categorically forbids the worship of other gods. The
through vartous means of revelation. such as vision, third Commandment which prohibits profaning in any
mystic dream, and deep religious experience. way the name of God is, of course. religious because it
implements the idea of God given in the first two
As the law of religious faith, the precepts of divine Commandments. Since there is only one God, then it is
law are embodied in the sacred writings of the various logical that the name of God should not be taken lightly.
religions. As this is known in all Christendom, divine
law is found in the Old and the New Testaments of the The fourth Commandment which enjoins the set-
Bible. In the Old Testament. divine law is embodied in ting aside of one day of rest in every seven for the
... the Ten Commandments. It is written that Moses, the
great Hebrew leader and prophet. received the Ten
worship of God and for the welfare of human life is not
only religious but also social. This may rightly be the
Commandments from God on Mount Sinai, in the basis of the democratic concept of social legislation very
wilderness of the Sinai peninsula. These Command- well exemplified by the Blue Sunday Law and the Eight-
ments which are the epitome of man's duties toward Hour Labor Law. Work and activity are quite necessary
God and his neighbor, are the religious laws believed to but so is periodic rest not only for worship of God and
have been formally given by God through Moses.5 1 spiritual development but also for rest and relaxation.
Thus, a person may find renewed spiritual strength and
Although these Commandments are religious in physical development. both of which make for the
nature they have at the same time tremendous secular abundant life. The fifth Commandment. dealing with
significance. It is difficult to conceive of any clime or honor due parents by enjoining respect, obedience and
country which has not been influenced by the Ten loyalty to them. is not only religious but also social and
Commandments. Indeed, many of the democratic ideas ethical. There is a definite emphasis here on the author-
owe their inspiration to the Ten Commandments and to ity of parents and the responsibility of children. The
the teachings of Jesus Christ in interpreting these respect. obedience and loyalty that children owe their
Commandments. parents foster the indispensable spark of family affec-
tion and filial piety. which have become the bases of the
The first three Commandments are purely reli- democratic concept of love and loyalty to the nation.
gious. But the balance carry social, ethical, and eco- The sixth Commandment which recognizes the infinite
nomic implications as well. worth of human life and dignity and the prohibition of
taking them is both religious and social. There is a
The first Commandment. having to do with the definite order prohibiting the destruction of a fellow
unity of God making possible the onehood of human- h uman being physically or otherwise. Without this
right to existence, self- preservation and self-realization
would cease to be universal imperatives. This Com-
51Exodusxxxi: 18. mandment has become the basis of the democratic
32 LEGAL PHILOSOPHY INTRODUCTION 33
approach to social living. Certainly it lies behind part of flicted on another by giving false witness and un-
criminal justice. 52 founded testimony against any person in court or
elsewhere is religious as well as social. Great injustices
The seventh Commandment which definitely pro- and atrocities have resulted from false tongues and
hibits profaning in any way the sacred covenant of lying witnesses. It was the first perjury law. The tenth
marriage is not only religious but also social. Again, one Commandment deals with greed and covetousness. It
may say that it represents a basic aspect of the law of definitely prohibits the longing for things one cannot
persons and family relations. And it is also the basis of get by honest means. It is ethical, social and economic
the ethical insistence upon monogamous and generally in nature. Being an inward, subjective feeling it can
permanent marital relationship. The title of the people easily destroy peace of mind thereby confusing or
in the stability and solidity of the domestic institution warping the sense of values of the person harboring
is surely involved in the integrity ofthe family. The eight such greed.
"' Commandment which prohibits stealing is religious
but it has also social as well as economic implications.
This is the basis of the right to hold and enjoy one's 13: 1-5). Jesus Christ referred to the Mosaic Law of"eye for an eye
property not. of course, strictly for ownership sake as it and tooth for a tooth" in His Sermon on the Mount (Matthew 5:38).
is for the sake of service and stewardship. The ninth He did not repeal capital punishment with this reference but
Commandment which has to do with the wrong in- emphasized the justness of the Mosaic law for death cannot be for
a lost eye, death for a lost tooth, etc. He did not touch the law of"life
for a life" for the Mosaic principle of controlled retaliation states: "So
you shall purge the evil from the midst ofyou, and the rest shall hear
52nie Mosaic Code makes use of capital punishment (Exodus a nd fear, and shall never again commit any such evil among you.
21 :12, 14; Leviticus 24:17, 21; Numbers 35:16-21 ) for it is com- Your eye shall not pity for it shall be life for life, eye for eye, tooth for
manded that "for your lifeblood God will surely require a reckoning: tooth, hand for hand, foot for foot.· (Deuteronomy 19: 19-21). Jesus
whoever sheds the blood of man by man shall his blood be shed for Christ said that He did not come to do away with the Mosaic law and
God made man in His own image." (Genesis 9:5-6). The death the teachings of the prophets but to fulfill them (Matthew 5: 1 7 -18).
penalty is not commutable (Numbers35:31 ). The punishment lsjust Indeed, He even said in relating His message of higher righteous-
for it is only for heinous crimes not for any lesser crimes, regardless ness to the Mosaic law "You have heard that It was said to men of
of attitude. Indeed, the philosopher-teacher in Ecclesiastes could old, 'You shall not kill and whoever kills shall be liable to judgment.·
reflect with complete confidence that the reason or cause why But I say unto you that every one who is angry with his brother
people commit evil or heinous crimes so readily ls that the punish- without cause is already liable to that judgment." (Matthew 5:21 -
22).
ment of purging the evil from the midst of the people ls not executed
The distinct function of the death penalty Is both to serve as
quickly enough and It becomes frustrating to see an evil doer
a wa rning of the dire consequences of killing and as a deterrent to
commit a hundred crimes and still live (Ecclesiastes 8: 11- 121. In la w breakers (Deuteronomy 17:12-13, 19:20) and, secondly, as
effect. the philosopher-teacher ls saying that capital punishment is punlsh men t for the wrong done and a forfeit oflife In order to purge
a deterrent in that there Is no other effective deterrent. In the New the evil from the midst of the people. Even natural law believers have
Testament, the penalty of death is continued. Jesus Christ. spoke accepted the principle offorfeiture as an exception to the prohibition
of it (Matthew21:33-42, 22:1 -6, 26:52; Luke 19:27, 20:9- 16: Acts of of taking life. This principle means that it Is morally permissible to
the Apostles 25: 11). St. Paul, apostle and theologian, affirms the apply capital punishment to one who knowingly commits a heinous
death penalty in his letter to the early Christians In Rome (Romans rime for by such action such a person has fore felted or lost the right
to life.
"
34 LEGAL PHILOSOPHY INTRODUCTION 35
In the New Testament. divine law is found in both hibits killing so that one may escape God's judgment of
the Ten Commandments and in the teachings of Jesus death was interpreted to include anger without cause
Christ. The latter is found in His interpretations of the and failure to reconcile differences. 56 Here Jesus
Old Testament Commandments as well as in the new Christ is drawing a contrast between the outward act of
religious and ethical insights that He preached. His killing, which a judge can pass sentence upon, and the
fresh ethico-religious insights are stated and illus- inward thought of destroying a fellow human being,
trated in His incomparable Sennon on the Mount 53 The which God alone can judge. For still another example,
teachings of Jesus Christ are epitomized in His Great the seventh Commandment which definitely prohibits
Commandment which ordains all persons to love God adultery and concubinage was interpreted to mean not
and one another in the manner prescribed by Jesus only actual violation of the Commandment but also
Christ Himself. 54 In brief if one is imbued with this includes any unholy desire of the flesh. 57 Thus, obe-
•• kind oflove it is inconceivable how he or she could even dience is something that goes beyond overt observance
think of violating any of the Commandments. for it is equally clear that sin may be committed in the
mind even before it is translated into outward acts. The
The teachings ofJesus Christ are also contained in plain teaching ofJesus Christ is that it is not necessary
His interpretations of the Old Testament Command- to commit actual viola ti on of any law to really violate it.
ments. For example, the third Commandment which A mere desire to violate the law is tantamount to
prohibits profaning the name of God or taking His name transgressing it.
in vain is interpreted to include the prohibition against
swearing and cursing. 55 Thus, the use of divine names In the Muslim tradition, divine law is embodied in
without necessity, seriousness and reverence, and any the Quran as well as in the sunna and hadith of
attitude of irreverence and flippancy toward God be- Muhammed. The Quran is regarded by traditional
speaks of disobedience to this Commandment. The Muslim belief as the very word of God revealed to
sixth Commandment. for another example. which pro- Muhammed through the archangel Gabriel. There are
certain similarities between the Christian Bible and the
Muslim Quran. Not very many know that a Muslim
53st. Matthew v-vii. cannot remain a true Muslim if he or she did not believe
54 Ibid., xxii:34-40. In St. John xv: 12, Jesus Christ said: This
ts my commandment, that ye love one another as I have loved you in Moses and Christ, although the Quran places Christ
There are three words In Greek that can be translated Into the in the status of a prophet. The substantial point of
English word "love." One in eros. which means romantic love. The difference between the Muslim and Christian traditions
second Is phtlo, which means brotherly or filial love. This meaning is the former's inability to accept the doctrine of the
is expressed In words like philanthrophy or philadelphia. The third
is agape. which means redemptive love, a patient and consuming
Trinity and the Sonship of Jesus Christ culminating in
love that redeems him to whom It is bestowed. It Is one that gives of His crucifixion. Muslim tradition has it that someone
her or his own precisely that to which the other has no right. It Is the else took Christ's place on the cross at Calvary.
self-giving love revealed in Jesus Christ. This is the significant motif
of the word "love" In the text. 56/bfd., v:21-26.
55/bfd.. v:23. 57 Ibid., v:27-28.
,,
36 LEGAL PHILOSOPHY INTRODUCTION 37

A complete consideration of divine law properly divergent things and events. including human
belongs to theology. relations.

B. NATURAL LAw Sophocles (496-406 B.C.) modified the tradition


in his plays performed in the theatre, which at that time
Greek thinkers long ago laid the basis of the enjoyed quite a degree of freedom of expression. In his
classical theory of the natural law and developed its tragic drama entitled Antigone,00 Sophocles consid-
distinct characteristics as a discipline. But the concept ered natural law as a "higher law" enjoying primacy
of the natural law did not originally mean the sense ln over human conduct and order. In this drama, Creon,
which it is now generally understood, although it has king of Thebes. forbade the burial of Polyneikes whom
remained all along a metaphysical concept. Creon had killed in battle. Creon considered Polyneikes
a rebel and ordered his body to rot outside the walls of
(I) Historical Background the city. Antigone, the sister ofPolyneikes. pleaded with
The natural law theory has had a long history. But Creon to allow her to bury her brother. In making her
only highlights need be considered to get it into proper appeal. Antigone made an impassioned invocation of
perspective. A.fuller examination of the subject prop- the "immutable unwritten law" and the "irrefragable
erly belongs to metaphysics. 58 law ordained from above." Antigone's anguished appeal
failed to move Creon who insisted that as king his ·
The concept of natural law appeared in ancient decree stands. Antigone defied Creon's command and
Greece. It developed in connection with the order and performed the funeral service for her brother. For this
regularity pervading the whole of nature without which Antigone was buried alive.
the cosmos would be plunged into chaos. Thus, the
beginnings of the concept of natural law was inter- It was Plato (437-370 B.C.) who straightened the
twined with the notion of the law of nature in accord- way for the development of the natural law as a disci-
ance with which everything happens as they should. 59 pline to which human conduct and relationships
In this sense, Heraclitus (540-475 B.C.) referred to must conform in order to realize both the individual
natural law as the rational harmony and order of and common good. Plato drew a dividing line between
the ideal natural law, which he characterized by the
"ought". and its defiled representation, which he de-
• lineated by the "is". 61 Thus. Plato emphasized the
58 An explanation of the natural law theory from the scholas- contrast between the natural and the representational
tic viewpoint Is found In the University of Notre Dame Natural Law
Proceedings. A series of publications to restudy the concept of
concept of justice. Stated differently. Plato distin-
natural law with particular emphasis on Its utility In solving
pressing problems Is found In the Southern Methodist Untverstty
Studies tn Jurisprudence. 60HARvARDCL.ASS1cs. 259. Eliot Edition. F.C. Coller, New York.
59KJRJ<, G.S., RAVEN, J.E. and ScHoF1Ew M.. TuE PRE-SocRAnc 6lpLATO, T1·1E REPusuc. 509C-514C. Bloom Translation. Ox-
PH1wsoPt1ERS, 201. Cambridge University Press. London. lord University Press, London.
,,
38 LEGAL PHILOSOPHY INTRODUCTION 39
guished between what.is just by natural law and what origin. This is an echo from Cleanthes' Hymn to Zeus:
is just by positive law. 6 2 "For we are God's offsprings and alone of living crea-
tures possess a voice which is the image of reason, and
Aristotle (384-322 B.C.) gave a clearer distinction in the sight of God a slave is of as much value as a
between natural justice and legal justice.63 Aristotle monarch for each man is a divine spark of the divine
differentiated between fair equality-perfect justice- reason." Their outlook on life was characterized by
and what is due and proper-imperfect justice.64 Citing mental fortitude, discipline, and serenity in meeting
Sophocles, Aristotle posited the idea that the former is uncertainties and difficulties. Surveying the worsen-
binding everywhere even in the absence of communica- ing conditions of life and order in the civil societies in
tion or contact among different peoples, 65 as contrasted the waning period of Roman rule, the Stoics turned
with the latter which cannot be general without some their attention to the regularity and uniformity of
kind of agreement. 66 Thus, for Aristotle, what is due nature. Its abiding characteristic provided the Stoics
and proper may sometimes be contrary to what is fair with the idea of a durable, well-ordered society. Thus,
and equal. 67 the Stoics posited their great teaching of living consist-
ently with nature. Put differently, to gain a life of
At the time of the Stoics, the Roman world was discipline and calmness one must live naturally - to
beginning to wane. As a result, there was an apparent live and move according to nature. For the Stoics then
tendency for rulers and governments to drift away from human conduct must be brought in agreement with the
lawful procedures toward arbitrary courses of action. abiding character of nature.
In this mileau, the Stoics attracted quite a large number
of followers principally due to their ethical philosophy It was Epictetus (50-125 A.D.),69 a later Greek
of equality. 68 A familiar maxim of the Stoics is: All men Stoic philosopher and contemporary of St. Paul, who
are equal by divine right since all men are of divine
believed that Zeno was influenced by the ideas of the Hebrew
prophets. But Zeno also adopted and built on the Ideas of Plato. The
62For additional treatment of Plato's dividing line, see Chap- organization of Zeno's teachings Into a system of metaphysics was
ter III on Rational Justice. the work ofChryslppus (280-207 B.C.) who studied under Cleanthes,
63RHETOHJCA I. 13. Ross Translation, Oxford University Press one of the early disciples of Zeno. It Is interesting to note that when
London. St. Paul. the apostle of Jesus Christ. appeared before the Council of
64Jbid., I, 10, 13. Areopagus, during St. Paul's missionaryjourney to Athens (The Acts
65Jbid., I. 13. of the Apostles 17:16-31). which Is the body that passed upon the
competence of visiting teachers and lecturers, It was Cleanthes'
66N1coMACHEAN Em1cs v. 7. Ross Translation, Oxford university
Hymn to Zeus that St. Paul cited when some Stoic philosophers
Press, London. questioned him about Jesus Christ and His resurrection. There is
67Ri·tETOmCA I, 15 Ross Translation, Oxford University Press, a S toic flavor In St. Paul's statement before the Council ofAreopagus
London. William Blackstone expressed the same view by stating when he said, "For In Jesus Christ we live and move and have our
that natural law Is binding in all climes and places. COMMENTARIES being as certain also of your poets have said: 'for we are also thy
ON rnE LAws OF ENGi.AND 1. 16th Edition. Oxford University Press, offsprg?js· ·• (The Acts of the Apostles 17:28).
London. Epictetus In early life was a Phryglan slave. His master
68stolcism was founded by Zeno (350-270 B.B.) In Cilium. He la te r set him free for his intellect and loyalty. He studied under
taught in the St<Xl Pocile (Painted Porch) In Athens. It Is generally
INTRODUCTION 41
40 LEGAL PHILOSOPHY

enhanced the metaphysical significance of natural law conscience guided by love and reason a t the same time
on the basis of his aversion to materialism. He advo- emphasizing the reality that there are people who act
cated the freedom of the human will from material according to natural law even though they may have no
things. For Epictetus, no one is a slave whose will is idea about it. The reason for this is that their conscience
free from false and selfish traits which are the things guided by love convince them of the righteousness of
that frustrate the fulfillment of the natural in human commendable actions. This is St. Paul's concept of
beings.70 He believed that the moral nature and good enlightened conscience as judgment or choice rooted in
faith of human beings are defeated by dependence on the heart and mind of man. This is an echo from the
material things. On the basis. of this metamaterial- prophet Jeremiah, one of the greatest figures in the Old
istic 'p erspective, Epictetus viewed the natural law as a Testament. Jeremiah preached the unusual idea that
discipline engraved, as it were, in the heart and mind of the only real religion is the religion of the heart and that
.. human beings. Having attached the natural law to
the moral nature of human beings, the natural law
religious sacrifices should be deprecated. He, then,
spo.ke of the covenant of God: "I will put my Law into
became the participation of humankind in the divine their minds and write it in their hearts. " 72 But it was St
law. Thus, natural law became the core of human Paul's concept of the enlightened conscience that ex~
personality and dignity enabling a person to act with posed the impersonal, that is to say apartness-from-
righteousness and justice. God abstractions of the Stoic doctrine.

St. Paul, apostle and theologian, deepened the Augustine in turn echoed St. Paul when he ex-
Greek concept of the natural law. In his letter to the pressed the view that good faith is present in all human
early Christians in Rome, he spoke of persons "who beings, not excluding the perverted and the depraved,
have no knowledge of the law act in accordance with it without regard to race, creed and station in life. Thus,
by the light of nature, they show that they have the law Augustine concluded that no one can really plead
in themselves for they demonstrate the effects ofthe law ignorance of the natural law because his innat.~ good
operating in their own hearts, their own conscience faith a nd moral nature are never silenced.73
endors e the existence of such law, for there is some-
thing which condemns or commends their actions."7 1 (2) Concept and Precepts
St. Paul is rejecting h ere the idea of conscience Since the natural law is said to be present in and
guided by customs and superstitions. He is stressing binding on all persons at all times its precepts have
been considered as continuing. protective principles
tha t hold for every human society notwithsta nding
Mosonlus Rufu s, a Stoic philosopher, and later became a disciple of differences in ethical conceptions of expressing them
Rufus.
70 orscouRS~:s I. 13, 18. Oldfather Trans lation. Haivard
72 J e re miah 31:33.
Univers ity Press . Cambridge.
73 Ch roust. A.H .. Aug ustine 's Philosophical Theory ofLaw, 25
7lnomans 2 : 14- 15. J .8 . Phlllps Translatlon. The Macmlllan
Com pany. New York. Noire Dame Lawye r 285.
LEGAL Pl IILOSOPHY INTRODUCTION 43
42
(3) Place and Function ln
outwardly. The Universal Declaration of Human
the Legal Order
Rights,14 and the European Convention on Human
Rights,15 are pointed out as the modem expression of The natural law has been utilized to justify, op-
views of many different nations of widely differing pose, regulate, or interpret human actions and con-
social and political ideas and philosophies. These duct.76
agreements are not the result of political agitation,
propaganda or rhetoric but of the presence in all (a) Justificatory Use
human beings of the precepts of the natural law. The natural law has been used to warrant some
legal innovation, or to support some claim to authority,
From all that have been slated above, the concept or simply to vindicate one's side of an issue or personal
of the natural law may be stated as the universal conviction.
discipline of virtue impressed in the heart and mind of
human beings to guide them in the exercise of their In Roman times. for example. the praetors peregrini
rights, in the performance of their obligations. in the made use of the natural law theory to hasten the
observance of rules. and in the preservation of peace development and application of thejus gentium to the
and unity. The essential matters of the natural law foreigners in the Roman empire in lieu of the older jus
concept are embodied in this definition. namely, the civile which was applied by the praetors urbani to Ro-
scope of natural law which is universal, the character man citizens only. The praetors peregrinideveloped legal
of natural law which is a discipline of virtue, the concepts based on principles of fairness and equity
relation of natural law to humankind which is its which they applied to all conquered peoples with different
impression in their hearts and minds, and the thrust of social and legal practices. A distinctive mark of thejus
natural law which is to guide human beings in their gentium is bonafl.des and intention of the parties to a
acts and utterances. contract rather than the mere words used.
The precepts of natural law are righteousness, The natural law theory was also used to warrant
justice, equality. and fairness. Righteousness is the the acceptance of certain innovations in the law of
virtue of doing that which is right. Justice is the nations. Alberto Gentili (also known as Gentiles), Jugo
attribute of administering that which is just among de Groot (also known as Grotius) and Puffendorf used
persons. Fairness is the quality of being honest. the natural law theory as a broad basis for their
Equality is the character of being impartial. respective works dealing with the body ofrules governing
the relations of sovereign states and entities which are
endowed with international personality. All three pub-

74yl':ARBOOK OF 111E U NIT..:0 N/\110NS (1948- 1949). 545-587.


7545 America n Journal of Inte rnational Law. 24-39.
76PouND, R., INTRODUCTION ro LEGAL H1sroRY, 148. Harvard Uni-
versity Press, Cambridge.
44 LEGAL PHILOSOPHY INTRODUCTIO N 45
Heists called this body of rules the law of nations. English law by the natural law theory. John Locke, too,
Jeremy Bentham was later to call it public inter- used it as the basis of his philosophy of natural rights
national law. which he posited as inalienable. John Locke also used
the natural law to justify and warrant the people's
Grotius, in particular, well realized that states withdrawal of governmental power whenever the gov-
would not tolerate, let alone accept. any system of law ernment persistently and deliberately fails or flouts the
based on the positive legal system of a ny one country. will of the people. Locke states that if sovereignty
tte. therefore, used what to him. were principles that resides in and remains with the people, then they would
cou ld be j ustified by the precepts of the natural law. have both the right and lhe obligation lo withdraw their
Upon these principles. Grotius built the structure of combined support either by means of lhe peaceful
rules dealing with the relations of states with one electoral response or, as a last resort, by the noble
another. In connection with this particular use of the though uprooting revolutionary response. In more
precepts of the natural law an influential modern recent times, the natural law theory gave powerful
publicist77 stated that the present "search for a sepa- support for the Nuremberg concept of "crimes against
rate basis for international law is not only illogical but humanity" and for the Declaration of Human Rights of
socially harmful. "78 the United Nations Organization. And just a few years
back, the natural law was utilized to justify the EDSA
With the revival of learning in Europe during revolu tion in the Philippines which crystallized the idea
thel Ith and 12th centuries, thenaturallawtheorywas of people power.
used by jurists-theologians to justify the claim of the
Romish Church to temporal powers. About three cen- The natural law theory has also been utilized to
turies later, Martin Luther also utilized the natural law justify innovations in the legal system. For instance, in
concept in his drive to modify and purify the older the Philippines the Code Commission placed the pre-
Chu rch order and, later on, to advance and support the cepts of "justice and equity above strict legalism or
Protestant Reformation, which contributed greatly to form" in providing rules concerning such legal concepts
the rapid rise of nationalism in Europe. as quieting of title, reformation ofinstruments, estoppel,
trusts. and natu ral obligations. 79
In la ter juristic growth, the natural law theory
played an outstanding justificatory role. Jeremy With respect to the concept of natural obligations.
' Bentham, for instance, rationalized his reforms in the Code Commission made use of the natural law, as
did the ancient Roman jurisprudents in tempering the
severity of thejus civile. to warrant the incorporation of
7 7FENW1CK C.G.• INTERNATIONAL LAw, 30, n. 11. Appleton-Cen-
tury-Croft s, New York.
78Professor J. Amertcano proposes a different basi s for In -
ternational l aw In his book entitled 1'11E NEW FOUNDATION OF INTERNA- 79RJ.;pom· OF THE CODE COMMISSION ON TIIE PROPOSED CIVIL CODE Of'
TIONAL LAw, Macmillan and Co.• New York. Tilf: Pt111.1PP1N~:s.
26. Bureau of Printing, Manila.
46 LEGAL PHILOSOPHY INTRODUCTION 47

natural obligations in the legal system.80 As now em- question revolves on the circumstances which may
bodied in Book N of the Civil Code of the Philippines. warrant a person or group of persons in refusing to obey
Title III thereof is, with the exception of Article 142 7, s1 a rule not necessarily for the sake of disobedience but
a distinctly new set of rules "not unequivocally recog- to emphasize the fact that blind obedience to govern-
nized as such" in the Civil Code of Spain, which was mental authority is not good either. Pound puts this in
applied in the Philippines up to 1949. Title III divided a striking manner. Since the law is different from a law
obligations from the standpoint of the natural law into it is not at all surprising that a person may respect the
civil and natural obligations. The first provision states law and yet object to or oppose a particular s tatute. 84
that civil obligations give rise to. a legal right that such This is a problem. Legal positivists and natural law
obligations be performed while natural obligations, not adherents do not see eye-to-eye on this issue. But this
being based on positive law but on the natural law. disagreement only puts into sharper focus the critique
especially on the precept of equity, do not give rise to a against the natural law theory.
right of action to enforce the performance of such
obligations but should they be fulfilled voluntarily by Ordinarily. the natural law does not advocate
the obligor. then the obligee can retain what has been disobedience to a bad statute, order or decision. Even
delivered or rendered. 82 As such, they may no longer be this kind oflaw has to be obeyed. The natural law does
recovered or undone even on the allegation that they not release a person from the duty to obey such a
were given or done without any consideration. 83 statute, order or decision. But obedience in this case is
not premised on the fact that they are laws but because
(b) Oppositive Use disobedience would in itself be in derogation of the
natural law. And the proponents of the natural law
The problem here is not so much with the relations
theory cannot seem to overemphasize the idea that the
ofindividuals to individuals as it is with the relations of
natural law does not countenance blind obedience. For
individuals to government. To put it in another way, the
them, "nonviolent noncooperation with evil is as much
a duty as is cooperation with gOQd." Since a statute that
BC>nie Code Commission stated that ·in all the specific cases is contrary to the precepts of the natural law is looked
of natural obligations recognized by the proposed Civil Code, there down as deceased, then, it becomes the right as well as
ts a moral but not legal duty to perform or pay, but the person thus
performing or paying feels that In good conscience he sho4ld comply the duty of the people or the individual concerned to
with his undertaking which Is based on moral grounds . ... Equity, reveal and protest such statute, order or decision. 85
morality, fair dealing, natural j ustice - these are, after all, the The American Bar Association, through its Committee
abiding foundations of all positive law, .. . The essence, therefore, on State and Federal Taxation. has advocated this
of the subject matter (Title Ill) Is that the foundation Is natural law
as well as equity.• Memorandum of the Code Commtssion. 20 Law-
yers Journal, 460.
Bl Which ts Article 1160 of the Civil Code of Spain. 84poUNo, R.. I JurusPRUDENCE, 12. West Publishing Company,
82Artlcle 1423, Civil Code of the Philippines. St. Paul, Minn.
83nie other natural obligations are set forth In Articles 1424 85w1w, W., INTRODucr10N ro REA.usnc JurusPRUDENCE, 199.
to 1430 of the Civil Code of the Philippines. Harper & Bros., New York.
'.
48 L~;cAI, PHILOSOPHY
INTRODUCTION 49
action in the case of unjust and unfair tax legislation. 86 legislature enjoys the character oflaw to the extent that
It unequivocally declared that the precepts of the
it is derived from the natural law."90 Obviously, any
natural law are limitations to which tax laws should be
statute or regulation that is incompatible with the
subject. 87 precepts of the natural law is a corruption of the law.
Thus, in the hands oflegal philosophers who believe in
(c) Regulatory Use
the natural law theory, a statute or regulation is null
Jurisprudents who are natural law devotees go and void when it is contrary to the suprapositive law
further than the philosopher concerning the regulatory even when it is not inconsistent with the superpositive
use of the natural law. norms of the constitution.

It is not fanciful to state that there are statutes There are two grounds advanced by those who
which are unjust. unfair and unequal even when they favor the regulatory use of the natural law.
are not constitutionally suspect. Too often statutes or
regulations of this kind are observed simply because The first is that no statute can violate the precepts
they exist. While this may be confusing., especially to ofthenaturallawwithoutproducinganadversereaction
the uninitiated, courts have applied the precepts of the from the people. It is unthinkable, for the natural law
natural law in determining the validity of such statutes scholars. that the people would have yielded or entrusted
or regulations. to their representatives in the lawmaking body the
power to enact statutes which would be contrary to the
The regulatory use of the natural law is rooted in precepts of the naturallaw. The classic authorities cited
the ancient maxim lex iryusta non est le~ on the dicta in support of this argument are Galvin's Case,91
of Cicero and Thomas Aquinas. Cicero advocated the Bonhwn's Case, 92 and Savage's Case.93
idea that a piece oflegislation would be free from protest
only if it were enacted ..naturally." For Cicero, the In Calvin's Case, Lord Chief Justice Edward
natural law has definitely this function because ..it ts Coke used the natural law in denying the claim of
not allowable to deviate from the natural law, nor can King James that after the unification of the crowns of
it be altered or abrogated. Neither can the people be · England and Scotland he was above the Parliament and
released from this law either by the State or by the not subject to its enacbnents. In Dr. Bonham's Case, Lord
people themselves. "89 Thomas Aquinas, on the other Coke struck down an act of Parliament which author-
hand, posited the idea that ..every law enacted by the
90suMMA ThEoLOG1CA, Part II, 95. Fathers of the English
Dominican Province Translation. Bums, Oates, & Washbourne,
86yhe Moral Issue, 27 Taxes, 9. Ltd., London.
871dem. 914coke Rep. 1, 77Engl. Rep. 377, CourtoftheKing'sBench.
88zwJNou. J., SELECTED WoRKS, 6. University of Philadelphia 92g Coke Rep. 113, 77 Engl. Rep. 646, Court of the King's
Press, Philadelphia. Benci
89oE REPuauCA BooK Ill. Chapt. x:xll. 3g Coke Rep. 185, 77 Engl. Rep. 937. Court of the Kings
Bench.
,.
50 LEGAL PHILOSOPHY INTRODUCTION 51
ized the president and censors of the Royal College of ture and it follows that the legislature may do anything
Physicians, a London corporation, to license physicians within the legitimate scope oflegislation .. . But there
to practice m edicine. to prosecute before the college are certain limits to the exercise of legislative power
itself any person practising medicine without a license which have been recognized from the earliest times.
and to impose a fine half of which accrued to itself. Said These are the eternal principles of justice and equity
Lord Coke: which no government has a right to disregard. It does
not follow, therefore. that because there is no restric-
The censors cannot be judges. ministers, tion in the constitution prohibiting a particular act of
and parties: j udges to give sentence or j udg- the legislature that such act is constitutional. Some
ment; ministers to make summons, and par- acts, although not expressly forbidden, may be against
ties to have the moiety of the forfeiture or fine, the plain and obvious dictates of reason, and, says Lord
quia aliquis non debet esse judex in propia Coke, void."95 Chief Justice Chase of the Supreme
causa. imo iniquum est aliquem suac rei esse Court of the United States, in writing the decision in the
judicem; and one cannot be judge and attor- License Tax cases, appealed to the natural law. He said
ney for any of the parties .... And it appears that "there are, undoubtedly, fundamental principles of
in our books that in many cases the common morality and justice which no legislature is at liberty to
law will control the act of Parliament when an disregard."96 So did Chief Justice Hosmer of the Su-
act of Parliament is against common right and preme Court of Connecticut in Goshen v. Stonington. 97
reason, or repugnant or impossible to be per- In disposing of the issue of whether a retroactive statute
formed, and sometimes adjudge them to be may be held void even though there was no constitu-
utterly void: for common law will control it, tional prohibition against such kind of statute, Chief
and adjudge such an act to be void." · J ustice Hosmer said:

In Savage's Case, Lord Chief Justice Hobart de- Should there exist . . . a case of direct
clared that an act of Parliament made against natural infraction of vested rights too palpable to be
equity . . . is void in itself for jura naturae sunt immu- questioned and too unjust to admit of vindica-
tabilia et leges legum. "94 tion, I could not avoid considering it as a
violation of the social compact, and within the
The influence of Lords Chief Justices Coke and control of the judiciary. If, for example. a law
Hobart is quite marked. Justice Green of the Supreme is passed without any cause to deprive a
Court of Tennessee stated in an early case that "the person of his property or to subj ect him to
lawmaking power of the people is vested in the legisla-
95 BankofStatev. Cooper, 2Yerg. 599, 603; 24 Am. Dec. 517,
94A refutation of the regula tory u se of the natural law Is found 52 1.
In Plunckncrtt's Dr. Bonham's Case and Judicial Review, 40 Harvard 965 Wall. (U.S .) 462 , 469, 8 L.Ed. 497, 500.
Law Review, 30. 9 7 4 Conn. 209.
L EGAL P HILOSOPI 1Y
I NTHODUCTION 53
52
suffered greatly the qualm of conscience in their appli-
imprisonment. who would not question its cation of positive law of dubious legality during Hi tier's
illegality and who would aid in carrying it into 111ird Reich. Thus, within five months after the Allied
effect. Control Council assumed full authority throughout
Germany. a decision reflecting the revival of the natural
J ustice Harlan of the Supreme Court of the United
law theory was promulgated by the Amlsgenchl
States frankly admitted that "the courts have rarely. if
Wiesbaden. 100 In another case. which centered on the
ever. felt themselves so restrained by technical rules
problem of whether the Nazi goverrunent acquired
that they could not find s ome remedy con s istent with
property rights on goods and things secured under a
the law or acts, wheth er done .by the government or
sta tute countenancing discriminatory treatm ent of Jews
individual person . that violated natural justice or were
a nd whether the pla inWT. a J ew, could legally claim for
h ostile to the fundamental principles devised for the
restitution of the properties of her dead parents from
protection of the essential rights."98 the defendant who had purchased them at public
auction. the court ruled that "according to natural law
Thus, Professor Carleton Kemp Allen. a proponent there exist human rights which are immune even from
of th e natural law theory. could state with s ome amount an infringement by state legislation. These rights are so
of assurance that "all laws must postulate some kind of immanent of man that their abolition would constitute
common denominator of just instinct in the commu-
the destruction of the spiritual and moral nature of
nity. There is no meaning in any legal system unless
man. One of these rights is the right of property. ... The
this foundation exists. . . . It needs no subtle dialectics state can never totally deny man or group of men who
to demonstrate that there is in manat least an elementary have done no wrong the right to possess private prop-
perception of justice . .. which no law dare flagrantly erty. Therefore, the laws confiscating Jewish property
transgress."99 are incompatible with natural law apd were void the
very moment they were promulgated." 101
Perhaps in no other country has the regulatory use
of the natural law been more pron ounced than in To summarize the first argument. it is not possible,
Germany during the first decade after World War II. then. that the people would have yielded or entrusted
Durtng that period, jurisprudential thinking in Germany power to their representatives to enact statutes which
undeiwent a basic change characterized by a revival of would be "in violation of common right and reason. "102
the natural law theory. This is explained by the fact that
German jurisprudents were eager to show their oppo-
sition to the philosophy of legal positivism, having
100cottfried. W., Constitutional Development in Postwar Ger-
manyi 42 Virginia Law Review, 3.
98Monongahela Bridge Company o. United States. 2 16 U .S. Ol Idem
177, 182 , 30 S. Ct. 356. 54 L.Ed. 435. 102Dr. Bonham's Case, 8 Coke Rep. 113, 77 Engl. Rep. 646,
99LAw 1N TI-IE MAKING. 309. 4th Edition. Oxford University Press.
Court of the King's Bench.
London.
54 LEGAL PHI LOSOPHY INfRODUCTION 55

or would be "conlrary to lhe immutable principles of cure to themselves and their posterity the
justice and equily," 103 or would be "inconsistent with blessings of independence under a regime of
righleousness and fairness," 104 or would "abolish rights justice, liberty and democracy, do ordain and
so immanent of man. 105 promulgate this Constitution.101

The natural law devotees advance another ground In the 1973 constitution, the preamble was com-
to sustain their argument that courts can hold statutes posed in this wise:
and regulations null and void even when they are not
contrary to the constitution. It is contended that the We the sovereign Filipino people, implor-
people themselves may have expressed their preference ing the aid of Divine Providence, in order to
for the precepts of the natural law in their constitution establish a government that shall embody our
in establishing the state. In the Philippines. the pream- ideals, promote the general welfare, conserve
bles of the 1935, 1973 and 1987 constitutions have and develop the patrimony of our nation. and
been cited to support this claim. Although natural law secure to ourselves and our posterity the
scholars concede that the preamble of a constitution is blessings of democracy under a regime of
hortatory and does not directly bestow rights they, justice, peace, liberty and equality, do ordain
nevertheless, insist that the preamble cannot be ig- and promulgate this constitution.
nored either for it announces and lays down the type of
governance that will promote the purposes and ends for The preamble of the 1987 constitution provides as
which the constitution is ordained by the people.106 follows:

The preamble to the 1935 constitution provides as We the sovereign Filipino people implor-
follows: ing the aid of Almighty God in order to build a
just and humane society and establish a
The Filipino people, imploring the aid of government that shall embody our ideals and
Divine Providence in order to establish a aspirations, promote the common good, con-
government that shall embody their ideals, serve and develop our patrimony, and secure
conserve and develop the patrimony of the to ourselves and our posterity the blessings of
nation, promote the general welfare, and se-
107De la Costa v. Cleofas, 67 Phil. 686. The term "equality"
103Powellv.Alabama, 287U.S. 45, 77L.Ed. 158, 53S.Ct. 55. wh ich appeared in the preliminary draft of the preamble to the 1935
104De la Costa v. Cleofas, 67 Phil. 686. cons titution and twice approved by the Constitutional Convention,
105Sec n. 103, supra. was deleted in the final copy of the preamble. The Convention
l061t is more accurate to say that the people in adopting the believed that the idea which the term "equality" signUles was already
constitution accepted the desirability of the preamble for its salutory embodied in the term "democracy." ARuEoo, TuE FRAMING oF ntE
effect on the whole constitution. Aglipay v. Ruiz, 64 Phil. 201, citing PHIUPPINE CoNSTmlllON, 114. The framers of the 1973 and 1987
Bradfield v. Roberts, 175 U.S. 291. 20 S. Ct. 121, 44 L.Ed. 168. cons titutions decided to return the term "equality" to the preamble.
56 LEGAL PHILOSOPHY INTRODUCTION 57

independence and democracy under the rule any provision or provisions in the contract
oflaw and a regime of truth, justice, freedom, creating the same or in any subsequent agree-
love, equality, and peace do ordain and ment affecting such obligations to the con-
promulgate this constitution. trruy notwithstanding, shall not be due and
demandable for a period of eight (8) years from
The proponents of the natural law contend that the and after the settlement of the war damage
legal order established by the sovereign people in their claim of the debtors by the United States-
constitution is based on the precepts of the natural law. Philippines War Damage Commission. with-
out prejudice, however, to any voluntary
There are two cases in the Philippines of some agreement wWch the interested parties may
significance in the regulatory use of the natural law. In enter into effect after the approval of this Act
Rutter v. Esteban. 108 the Supreme Court struck down a for the settlement of said obligations.
statute with the application of the natural law notwith-
standing the Court's initial finding that the statute in Royal Rutter argued that defendant Placido Esteban
question was not unconstitutional. Thirty years after cannot hide behind the Debt Moratorium law because
the Rutter case. in Luna v. Intennediate Appellate the said statute was unconstitutional because it im-
Court. 109 the Supreme Court set aside a writ of execu- paired the contractual obligation of defendant Esteban
tion of a final judgment with the use of natural law with him. Rutter showed that Esteban's obligation was
although the Court had ruled that the writ of execution embodied in a pre-war contract wWch Esteban prom-
was legally issued. ised to settle on or before August 27. 1943. Relying on
the decision in Community Investment and Finance
In the case of Rutter v. Esteban. the issue involved Corporation v. Garcia. 110 defendant Esteban argued that
thevalidityofRepublicActNo. 342, otherwise known as the statute in question was constitutional because it
the Debt Moratorium Law. The statute embodied with was a valid and justified exercise of the police power of
some modifications Executive Orders Nos. 25 and 32. the state operating in the traditional area of public
issued on November 18. 1944 and March 10, 1945. welfare. more specifically in safeguarding the vital
respectively. The pertinent provision of Section 2 of the economic interest of society in its credit structure. In
statute in question is as follows: support of this special defense, and to comply with
Section 2 of the Debt Moratorium Law, Esteban placed
All debts and other monetary obliga tions on record a certified true copy of his war damage claim
payable by private parties within the Philip- No. 031125. which he had filed with the United States-
pines originally incurred or contracted before Philippines War Damage Commission. The claim
December 8. 1941, and still remaining unpaid amounted to P47,080.72 which he sustained during
the war. Esteban also put in evidence the certificate of
l08g3 Phil. 68.
109137 SCRA 7. l l088 Ph il. 215.
,.
58 LEGAL PHILOSOPHY INTRODUCTION 59

award showing that of the amount of P38,716.34 United States-Philippines War Damage Commission
awarded to him only 70% thereof was paid by the was not only uncertain but also practically nil. It
commission. The Court found that Esteban's obliga- depended entirely on the United States Congress which
tion with Rutter was a pre-war debt remaining unpaid. may or may not appropriate the amount necessary to
While the Court conceded that the statute in question cover the balance of the approved amount awarded to
impaired the obligation of Esteban to Rutter, the Court, the claimant. In a word, the eight-year period provided
however, agreed with the former that the debt morato- in Section 2 of Republic Act No. 342 could not even be
rium law was nevertheless "a valid exercise of the police tolled in view of the provision that pre-war debts "shall
power of the state for the general welfare." The Court not be due and demandable for a period of eight (8)
ruled that the statute in question was constitutional. years from and after the settlement of the war damage
claims of the debtors by the United States-Philippines
Normally. this would have been the end of the case, War Damage Commission." The other fact is that the
and of Rutter tool But the Supreme Court did not rest debtors were not even required to pay interest during
on the question of constitutionality of the debt morato- the operation of the moratorium.
rium law. In searching the problem further, the Court
proceeded to inquire into the naturality of Rutter's Thus. the Court held that "the hope of the creditors
claim against Esteban via the suprapositive approach to effect collection becomes extremely remote" and
and concluded that the debt moratorium law was, while the state "may postpone the enforcement of the
nevertheless, null and void as judged by the precepts of obligation [on the basis of its police power] it cannot
the natural law. destroy the obligation by making the remedy futile." The
Court in effect was saying that an adequate remedy
The full Court, speaking through Justice Felix should have been provided in the statute on the princi-
Bautista-Angelo, pointed that the period suspending ple of ubi i,.Yuria ubi remediwn In the end, the Supreme
payment of a pre-war debt, dating as far back as 1941, Court held Republic Act No. 342 null and void not-
was "unreasonable and oppressive." Continuing, the withstandingits initial ruling that the statute in question
Court held that even though "the purpose of Congress was constitutional. In doing so. the Supreme Court
is plausible, and should be commended" the relief made an unmistakable appeal to the precepts of the
accorded to pre-war debtors was unjust and inequitable natural law. Said the Court on this point:
to their creditors who are practically left at the mercy of
the debtors. The hope of the creditors to get paid was And consistent with what we believe to be
the only course dictated by justice. fairness
extremely remote.
and righteousness we feel that the only way
open to us under the present circumstances is
The Court identified two facts which made it con-
to declare that the continued operation and
clude that the statute in question. while constitutional.
was "unreasonable and oppressive." The first is that the enforcement of Republic Act No. 342 at the
settlement of the war damage claims filed with the present time is unreasonable and oppressive.

1.
60 LEGAL PHILOSOPHY INTRODUCTION 61

and should not be prolonged a minute longer. She married her correspondent Salumbides and they
and. therefore. the same should be declared begot Shirley. About four months after Shirley's birth.
null and void and without effect. the respondents gave Shirley to the childless petition-
ers who were blest with considerable means. The peti-
To the legal positivists it is unthinkable that an tioners doted on Shirley and brought her up as their
otherwise constitutional statute could still be nullified very own according to their life style. When Shirley was
and voided. But it is clear that the Court expunged the
about five years old. the petitioners decided to go on a
statute in question from the statute books. The Court pleasure trip abroad. They asked the respondents for
emphatically held that "the same [Republic Act No. 342)
their written consent in order to secure a travel visa for
should be declared null and void and without effect." Shirley. The respondents refused and the petitioners
had to proceed with their travel plans without Shirley
The side question is whether the Supreme Court whom they left with the respondents while they were
could not have arrived at the same result by the away. Upon the return ufthe petitioners, the respond-
application of some superpositive law doctrine. e.g.• ents refused to give Shirley back to the petitioners. And
substantive due process. without having to rule an the respondents did not even take the child to the
otherwise constitutional statute null and void on the petitioners for a visit.
basis of the suprapositive precepts of the natural law.
The record of the case does not show that the case was A petition for habeas corpus filed by the petitioners
analyzed on this basis. But if the Court had done so it in the lower court succeeded and they were awarded
would have entailed a contradiction in approach. Thus, custody of the child. But this decision was reversed by
the Court itself said that the only way open to it was to the Intermediate Appellate Court. A petition filed by the
declare an otherwise constitutional statute null and petitioners in the Supreme Court failed. Upon finality of
void on the basis of the suprapositlve precepts of the the judgment, the case was remanded to the trial court
natural law. for execution ofjudgment. This was vigorously opposed
by the petitioners on the ground that supervening
Like the Rutter case. Luna v. Intermediate Appellate events and circumstances, namely. the subsequent
Court involved a conflict between positive law and emotional. psychological, and physiological distur-
natural law. Justice Felix V. Makasiar. who filed a bances suffered by Shirley (who by this time was nine
dissenting opinion. strongly charged the majority of years old), would make the execution of the judgment
"conveniently sidetracking" positive law in setting aside prejudicial to the welfare and best interest of the
a writ of execution. which was legally issued to imple- child. The trial court scheduled a hearing on the
ment a final judgment involving the parental custody of matter. It was during this stage of the proceeding that
a 9-year old child. on the basis of the nebulous concept Shirley manifested in court that her parents were cruel
of serving the ends of justice. to her, that she did not believe that they really loved her.
and that if she were forced to stay with them she would
The material facts show that petitioner Luna had either escape or kill herself. A psychologist testified that
an illegitimate daughter. respondent Maria Lourdes.
62 LEGAL P1111..0SOPHY INTRODUCTION 63
on the basis of her findings, Shirley has indeed grown the court. The Supreme Court held that there are
more embittered. cautious, and distrustful of her par- indeed strong and compelling reasons for permanently
ents, and that Shirley would be very unhappy if she staying the writ of execution issued by the lower court.
were ordered to stay with her parents. Even so, the trial The Supreme Court held that the implementation of the
judge denied petitioners' motion and issued the writ of judgment ordering the custody of the child in favor of
execution. The petitioners ftled with the Intermediate the parents would be "prejudicial, unjust. unfair, and
Appellate Court a petition for certiorari and prohibition inequitable" to the child and would "cause irreparable
with preliminary injunction asking that the writ of damage to the welfare and best interest of the child."
execution be stayed permanently. This was denied and
the petitioners went to the Supreme Court for relief. Justice Concepcion stressed one final point in
pursuing the court's appeal to the postulates of the
Justice Hermogenes Concepcion, speaking for the natural law. Justice Concepcion emphasized Shirley's
Supreme Court. did not deny the positive law on the manifestation made in the trial court that she would
ministerial function of a lower court in the execution of either escape from her parents or even kill herself
a judgment of a higher court. But the Court felt that it should she be forced to stay with them, which she
coula brush aside the legal rule on execution of judg- reiterated twice in writing to the members of the Su-
ment, even though the writ was not illegally issued, preme Court. For Justice Concepcion, Shirley's mani-
when it is necessary to prevent injustice. In this case, festation "may appear empty to some but what if the
the Supreme Court held that there were indeed threat is for real!"
supervening events and circumstances justifying the
cancellation of the valid writ of execution. In brushing The legal positivists, however, advance certain
aside the positive law on execution of Judgment, cus- reasons for disagreeing with the regulatory use of the
tody of children, and parental authority, the Supreme natural law. The first is that the natural law is not a part
Court made an unmistakable appeal to the precepts of of the legal system. It is merely "the virgin gold of the
the natural law. mine ... unlike positive law which is classified, reduced
to order. and put in the shape of rules, the coin in the
It is noteworthy that even Justice Makasiar admit- mint, with its value ascertained and fixed. "111 Thus, to
ted in his dissenting opinion that the positive law on treat the natural law otherwise would make it antago-
parent-child relationship "can be disturbed for strong nistic to the sovereign power of the collective body
and compelling reasons but only upon a clear showing politic. Whether a statute can be set aside as null and
of either gross misconduct or unfitness on the part of void by means of the natural law precepts is a policy
the parents, or other extraordinary circumstances and matter which falls within the exclusive competence of
events affecting the welfare of the child." But it is this the body politic. Unless there is an unmistakable policy
"extraordinary circumstances and events" that the expression on the matter in the constitution with clear
majority opinion precisely used in striking down an
otherwise legal writ of execution of a fmal judgment of
111 Duncan v. Magette. 25 Tex. Appl. 245.
64 LEGAL PHILOSOPHY INTRODUCTION 65
and proper parameters. courts may not use it in the representatives. 113 Thus, when courts invalidate stat-
legal ordering of society. utes on the basis of the precepts of the natural law, they
embark on a judicial philosophy unlimited by any fixed
The second ground is that the natural law has no standard. And if courts are able to do this, then. they
place in a politically organized society where there is no could also bring to test and invalidate even the provi-
particular established religion. 112 It makes a great deal sions of the constitution bymeansoftheprecepts of the
of difference which body in a politically organized natural law. As one writer said. "it is not inconceivable
s0ciety has the power to discover and apply the natural that this could end in a judicial coup d'etat." Followed
law. Not only does it have the hazard of speculativeness to its logical conclusion. courts can decide which
but it has also the added danger of discounting the statutes are in accordance with the natural law and
situation that no society is large enough to contain two which are not. regardless of the issue of constitutional-
competing forces without serious consequences on the ity. This. no doubt. poses a grave danger for constitu-
people themselves. tional democracy.

The third criticism against the regulatory use of the A very early disapprobation of the regulatory use of
natural law is that it is antithetical to a good legal order. the natural law appears in the decision penned by
For stripped of its abstract trappings. it advances the Justice Iredell of the United States Supreme Court in
idea that legislative enactments can be adjudged twice. the seminal case of Calder v. BulL 114 unfortunately
First. by the constitution. Second, even if constitutional known only to students oflaw for the parameters of an
but allegedly bad or evil. by the natural law. When ex postfacto law. But in the said case. Justice Iredell
courts proceed to annul statutes because they are in also expressed the Court's view that:
derogation of clearly marked constitutional bounda-
ries, such courts seek to execute policies expressed and It is true that some speculative jurists
recognized by the people themselves in the constitu- have held that a legislative act against natural
tion. But when courts declare statutes and regulations law must itself be void. but I cannot think that
null and void on the ground that they are against the under [a democratic system of] government
natural law. such courts consider only their own views any court of justice would possess a power to
or biases as to what the precepts of natural law mean, declare it so ... If any act of ... the legislature
no longer the meaning of the constitution. In so doing, of a state violates ... a constitutional provi-
courts actually create policies which. in a well-ordered sion. it is unquestionably void. though, I ad-
society. is the prerogative and responsibility of the mit. that as the authority to declare it void is
sovereign body politic delegated to their legislative a delicate and awful nature the court will

l 12pATTEHSON , E., II NATUHAL LAw AND NATURAL Rlc 11Ts, 54 113Federal Power Commission u. National Gas Pipeline Co. ,
Southern Me thodis t University Studies in Jurisprudence. SMU 315 U.S. 575, 62 S . Ct. 736, 86 L.Ed. 1037.
1143 U.S. 386, 1 L.Ed. 648.
.. Press, Dallas .
66 LEGAL PHILOSOPHY INTRODUCTION 67

never resort to that authority but in a clear or construction was set out by Aristotle to be "the
and urgent case. If, on the other hand, the correction of that wherein the law. by reason of its
legislature of a state shall pass a law within universality, is deflcient." 115 Since the intention of the
the general scope of their constitutional power legislature is composed of purpose and essence. then,
the court cannot pronounce it to be void for the natural law scholars, the purposive and essen-
merely because it is, in their judgment, con- tial interpretation of statutes depends to a great extent
trary to the principles of natural justice. The on the natural law. Although the interpretative appli-
idea of natural justice are regulated by no cation of the natural law has been criticized as an
fixed standards. the ablest and the purest of encroachment on the lawmaking function of the legis-
men have differed upon the subject; and all lature, 116 nevertheless. courts have continued to do
that the court could properly say, in such an what courts have been doing in this regard. They have
event, would be that the legislature (possessed used the interpretative role or function of the natural
of an equal right of opinion) has passed an act law to expound the legislative intention whenever such
which. in the opinion of the Judges. is incon- intention is said to be vaguely or doubtfully expressed.
sistent with the abstract principles of natural
law. The use of the natural law theory in the construc-
tion or interpretation of statutes arises when a particu-
(d) Interpretative Use lar situation or condition is apparently within its spirit
or purpose. This is expressed in the familiar canon of
It is a common place but not an aspersion to say statutory interpretation that a thing which is within the
that lawmakers have not always been able to express letter of a statute is not within the statute unless it
their intention syntactically and logically. The art and be within the intention of the legislature. For an illus-
science oflegislation is not easy. It is difficult to enact tration. let us take a statute enabling testators to
laws that cover all possible situations or cases. And pass their properties to their heirs or legatees at death.
there are times when the legislators. due to inappropri- No doubt it is the intention of the legislature that the
ate use of words or ambiguity of expression, either heirs or legatees instituted in a will or testament should
exceed or come short of their intention in enacting a have the property transferred to them as soon as
statute. Consequently. there arises the necessity of possible. But what if an heir kills the testator to prevent
interpretation, that is to say restraining a statute so as the latter from revoking the will and enter into his
to take in less or enlarging it so as to take in more than inheritance sooner. The testator is dead. the will is in
the words indicate. due form. Obviously. an heir who kills the testator to
set the will or testament in operation while within the
Although the natural law does not entirely control
the meaning to be given to a statute. it has been utilized
as an interpretative alembic or device to express or put 115Equttas est correctio leg is generaltter latae qua parti deficit
into effect the legislative intention. The limits of the use l l 6BLAc K, B. , HANDBOOK ON n-1E CoNs mucnoN AND IJ1ITERPru,,1 AnoN
OF lAws, 62. West Publishing C o., St. Pa ul, Minn.
of the natural law in the task of statutory interpretation
LEGAL PHILOSOPHY INTRODUCTION 69
68
letter of the statute is not. however. within its spiril or ship-is, no doubt. within the spirit or purpose of the
statute.1 19
purpose. 117
This situation could never have been the intention Thus, statutes have been restrained or extended
and purpose of the legislators.11a by the application of natural law.

The second use of lhe natural law theory in statu-


'I tory construction or interpretation arises when a par- C. MoRALLAw
ticular situation or condition apparently not within the This is the third type of nonjural law. It is not
words of a statute is nonetheless within its essence and similar to divine law or to natural law.
purpose. This is signified in the equally familiar rule of
statutory interpretation that a thing which is within the (1) Moral Order
intention of the makers of a statute is as much within
At some early stage of its existence, a group of
the statute as if it were within the letter. To illustrate.
let us assume that a statute was passed granting people learned that the determination of what behavior
is good or bad and what conduct is commendable or
compensation to any parent or child who al the time of
censurable was not left to each individual member of
an employee's injury is dependent on the earnings of
the group. It was early recognized that if each person
such employee. It was no doubt the intention or pur-
were allowed to form such a standard according to her
pose of the legislature in enacting such a statute to
or his own individual perception or understanding
lessen as much and as quickly as possible the impact disorder would soon follow. Thus, the people began to
and hardship ofthe death of or injury to the breadwinner. recognize and accept the same reasonable and desir-
It was also the intention of the legislature to establish
able conclusions growing out of the same collective
a rule whereby unwed mothers. for instance, are made experiences. Undoubtedly. this entailed a great deal of
the legitimate parents and heirs of their issues. The waste but each successful experience was also pre-
mother of an illegitimate son who died or was injured in
served along with others. These were considered good
the course of employment. while apparently not within
and exemplary and hence. obedience to them was
the words of the statute-since the common acceptance demanded by the group itself. In some such manner
of the word "parent" is denotive of legitimate relation-
certain moral attitudes became the predominant order
of the communal life and horizontal solidarity.
ll 7Riggs u. Palmer, 115 N.Y. 506, 22 N.E. 188.
l l81n the Riggs case. the Court stated that it is commanded (2) Moral Norms
ln the Decalogue that no work shall be done upon the Sabbath, and
yet giving the command a rational interpretation founded or based Moral norms are patterns of good and exemplary
upon its design [intent and purpose) the Infallible Judge held that
it did not prohibit works of necessity, charity. or benevolence on that
119Marshall u. Industrial Commission, 342 Ill., 400, 174 N.E.
day."
534.

' '
70 LEGAL PHILOSOPHY INTRODUCTION 71

conduct which set the moral tone or feeling of the gambling are customary to a group of people. would
community. They determine what conduct or behavior that make greed and covetousness right or good?
may or may not be allowed or what acts may or may not
be done. They are the aggregate ethics of the commu- (3) Moral Law and Other Disciplines
nity. Viewed from this observation post. moral law may
be said to resemble divine law and natural law. But
Moral norms a re applied by prescribing or impos- moral law is not exactly similar to them. Divine law in
ing u pon the m embers of the commu nity certain defi- the strict sense is the law of religious faith. Moral law.
nite patterns of behavior. People obey or avoid trans- while a lso concerned with the precepts ofgood and right
gressing moral norms because of cogent psychological conduct as the basis of its norms. is not necessarily
and material factors. 120 When moral norms are disre- concerned with the law of religious faith. For a person
garded or disobeyed there is a spontaneous social may not be religious and still be ethical. And while
reprobation. The social censure may take the form of moral law appears to be akin to the natural law in that
public abandonment or ostracism. or some form of they apply equally to all persons everywhere yet the two
actual punishment. On the other hand. social appro- disciplines are not precisely identical. Moral law is
bation is manifested without constraints when there is ethical in foundation while the natural law is strictly
conformity with moral norms. The social commendation metaphysical.
may be in the form of public preferment. public ac-
knowledgment. public endorsement, or some form of Moral law differs also from physical law. The latter.
actual reward. which will be discussed in the next subsection. is the
totality of uniformities and orders of sequence which
Moral norms are positive and peremptory. An combine together to govern physical phenomena. And
example is the moral norm that spouses must be moral law differs from jural law insofar as enforcement
faithful to each other. It is inconceivable that this is concerned. While jural law is enforceable in the
particular norm, based at once on the precept of good courts. moral law is enforced only by indefinite author-
and right conduct. will be changed or retarded either ity for there are no courts in which it is administered as
now or in the future. Moral norms are not relative. such. But as already stated it does not lack effective
advisory. or customary because they are not subject to sanctions.
passing desires or opinions. 121 If stealing and
(4) Moral and Social Norms
Moral norms are to be distinguished from social
l 20Maurier ldenttfles another type of sanction which he said norms. In every people united in some form of society
Is very effecUve and called It the ~satiric sanction." This means the there are wants. that is to say expectations. claims and
derision or ridicule heaped on the violator since the fear of being
derided and laughed at Is deeply rooted In man. demands. which are naturally different from one an-
121 Hutchin. R. The Bar and U.'galEducation. 23American Bar other. In the interaction of these different wants there
Association Journal, 926.
I,
LEGAL PHILOSOPHY
INTRODUCTION 73
72
th~ough the ages." 122 Social rules may prohibit some-
arises certain acceptable conventions or customary thmg at one time and permit it at another time and vice
practices. Thus, social norms deal with objective con- v:ersa. The Dumaga t and Balinese women at the present
duct only. Furthermore, they are really a matter of time, either through outside contact or efforts of reli-
unpredictable times. fickle usages and changing cir- gious missionaries, are beginning to put on something
cumstances. The fact is that actual valuations in social above their waists. In time, they will have completely
living are diverse at different times and places. For changed their outlook on what they believe to be
example, the Dumagat women in the highlands of the socially permitted regarding apparel.
Province of Rizal in the Philippines and the women of
the Island of Ball in Indonesia have been going about . A complete study of moral law properly belongs to
their daily tasks devoid of clothing above the waist. This elhics.
pass unnoticed in a society still habituated to it. It does
not give rise to prurient thoughts and actions. D. PHYSICAL LAW

Social rules may even vary with each ethnic group This is the fourth type of nonjural law. It is also
of a particular class of people. What is socially allowed known as the law of nature. But the use of this term is
in one part of a country may not be so in another part somewhat ambiguous for it also denotes or refers to
of the same country. The practice of polygamy in the other types of nonjural law.
Muslim areas in the Philippines is a convenient illustra-
tion. Under Muslim personal and family relations law, (1) Nature and Attributes
a Muslim man can have as many as four wives, provided In the flawless course and operation of the
that: 1) he has filed a written notice of his intention physical world, there are orders of sequence and uni-
with the court where his family resides. and 2) the form relations between things and objects. These are
husband can give all his wives equal companionship the physical phenomena that both human beings and
and support them and their dependent children ac- dumb creatures feel and sense. As a whole, they are
cording to his social standing. Under the Muslim Law known as physical law. These uniformities and orders
(Shari'a) found in the Qur'an and the Hadith of of sequence are constant and regular so much so that
Muhammad. the admissible grounds for taking an- they are completely depended upon with confidence
other wife are infertility. insanity, physical disability, or a nd belief.
refusal of the present wife or wives to have sexual
relations with the husband. The characteristic elements or attributes of physi-
cal law are imperativeness and regularity. Physical laws
Social rules may even change in the same ethnic a re imperative because they are fixed and unbreakable.
group at the same place at different times. What is
socially prescribed at one time may be proscribed a t
another time. James J ean aptly stated that Mvirtues and 122LN1Nc PH1wsorH1ES. 110. Simon and Shuster Publishing
vices have frequently changed places as life moved Hou se, New YorK.
4 I

I,
LEGAL PHILOSOPHY
IN"IRODUCTION 75
74
For instance. a personjumpingoutofa windowwillnol. forces of nature. Differently stated, the norms of physi-
by himself alone. land on the roof of the building. It is cal law as stated by their discoverers are generalized
propositions or statements of observed phenomena
fixed that he will fall to the ground. Or. for another
concerning order and regularity in the happening of
example. two atoms of hydrogen and one atom of
certain natural or physical events.
oxygen in chemical combination will always form a
molecule of water. or a molecule of heavy water if it were
(3) Distinguished from Jural Law
two atoms of heavy hydrogen and one atom of oxygen.
Physical laws are also regular because there is no break Since physical law is imperative and regular, its
in their sequence or constancy. The person in the norms can be reduced and worked out in mathematical
example gtven above cannot after jumping out of the equations. This is something that cannot be properly
window arrest his fall or suspend himself in mid-air, done in case of the norms of jural law because such
somewhere between the window sill and lhe ground. norms are either prescriptions or proscriptions. Be-
Neither will two atoms of hydrogen and one alom of sides, the rules ofjural law depend for their fulfillment
oxygen chemically unite to form a molecule other than upon human volition or will. while the norms of physi-
water. cal law operate inevitably independent of the human
will. It is the element of human volition or the will to
(2) Discovered Norms obey or disobey that is variable and indefinite in the
legal ordering of a community. An individual quite often
Physical law should neither be confused nor equaled
overacts or forbears in complying with some legal
with the norms of physical law as these are staled by
prescription or prohibition. more or less clearly defined.
their discoverers. The latter are merely generalized
descriptions of observed facts. To illustrate. the physi-
(4) Distinguished from Divine Law
cal law of gravity contained in the Newtonian system
and the physical law of electromagnetism contained in Physical law is not exactly divine law. Physical law
the Einsteinian system. in which all motions are ex- may, however, be considered divine in the sense that it
plained by the law of universal gravitation and electro- is ordained by God for the course and operation of the
magnetism, are not physical laws prescribed by Isaac cosmos or universe. To put the matter differently,
Newton and Albert Einstein. respectively. To be sure, divine law in the general sense is similar to physical law.
these physical laws have been in existence from the very But this is as far as the similarity goes, for divine law in
beginning. Particles have been, and will continue to be. the strict sense is not the same as physical law. The
held together by nuclear forces to form atoms. And former is the law of religious faith.
atoms have been. and will continue to be. held together
by electrical forces to form molecules. And larger bodies
have been. and will continue to be, held together chiefly
by gravitation. Newton and Einstein merely discovered
the modus operandi of these physical laws and formu-
lated the statements ofthese primordial or fundamental
CHAPTER II HisrORICAL PERSPECTIVE 77

The first is the basis itself of the perspective of the


THE HISTORICAL PERSPECTIVE historical school of jurisprudence. Freidrich Karl von
Savigny (1779-1861) 1 held that the law proceeds from
5. Historical Perspective as a Starting Point the volksgeist. For Savigny, the concept of the soul and
spirit of the people (diwayan) provides the sense of
6. Historical Element in the Law
beginning and unfolding of the law.
7. Historical View Limited in Scope
8. Nature of the Law The other reason is the renaissance of the natural
A. The Oblutiacs of a People
law theory. which is the comerstone of the house of
B. The Folksoul teleological jurisprudence. The concept of the natural
(1) Folklore law has again attracted the attention of legal philoso-
(2) Folksaying phers and jurisprudents.2 Conversely, the concept of
(3) Folkway the folksoul has lost a good deal of its appeal to many
(4) Folksong legal philosophers and jurisprudents. 3 The ideas of
(5) Folkdance "soul" and "spirit" are now rarely used in the works of
(6) Folkart modern philosophers. If at all, these ideas are generally
used to mean a high degree of intelligence, which they
9. Life of the Law call "minded action." Indeed, modern jurisprudents
have ceased to consider or to pursue the historical
10. Basic Points of Historical Jurisprudence
perspective as to the nature of the law. Professor Julius
A. State and Folksoul
Stone, for example, has even abandoned the category of
B. Law Not Deliberately Made
historical jurisprudence in his work. 4 Stone feels that
11 . Similarity of Different Legal Orders the historical perspective of the nature of the law is only
A. Historical Reason a chapter in the development oflawin society. 5 However,
B. Jurisprudential Reason
12. Value of Historical Perspective !German statesman, jurisprudent and first rector of the
University of Berlin.
5. HISTORICAL PERSPECTIVE AS 2ortlz, Fr.. The Movement TowardNaturalLa.wJurisprudence,
A STARTING POINT 3 Ateneo University Law Journal, I; Pound, R., The Revival of
Natural Law, 17 Notre Dame Lawyer, 287.
Although the historical school of jurisprudence is 3Frost, S.E .. Jr. records that In a published readings in
preceded by the teleological school of jurisprudence, modern philosophy there is no mention at a ll of the concept of the
there are good reasons for starting with the historical folksou l. 8AS1c Th:AcHJNGS o~· GREAT PHILOOOPHERS, Garden City Pub-
approach to the study of the nature of the law. lishing Co.. New York.
411-iE PRoviNcE AND FuNcT10N OF L\w, Associated General Publi-
cations, Ltd., Sydney. Australia.
5fbtd., 399·400.
,
' -
78 LEGAL PHILOSOPHY H1srorucAL PERSPECTIVE 79
it is by no means suggested that the historical view of been uninterrupted. Thus, for the historical school of
the nature of the law has lost its value too. It is still jurisprudence, the nature of the law and its con-
useful in the evaluation of the legal development of a commitant problems cannot be understood without
nation especially its legal history. 6 reference to, or appreciation of, the socio-political
phenomenon in which the law has grown. For histori-
6. HISTORICAL ELEMENT IN THE LAW cal jurisprudence, the law could not have thrived
It is a commonplace that people have lived together except in this environment.
• as a group, whatever the reason and wherever the
place. But due to the inevitable conflict of wants some 7. HISTORICAL VIEW LIMITED IN SCOPE
kind of social order evolved in order to settle or harmo- For historical jurisprudence, the law, like a
nize conflicting or overlapping interests. people's language, manners and other social character-
istics. is peculiar to a group of people. It is indigenous
It is not easy to say how this social order was as the flora and fauna of the country of that people. 7
established. It is very probable that it was based on Thus, historical jurisprudence accepts the idea that
some recurring decisions or adjustments of conflicts of what is peculiar to a group of people is not necessarily
interests. In some much manner. the ways oflife of the true for another group of people.a Each group of people
people were developed and passed on from generation has its own folksoul persisting from generation to
to generation. In time, a body of precepts crystallized. generation. 9 From this observation post. then, of
The precepts defining rules ofaction were classified and historical jurisprudence the law is not universal in
with the evolution ofsome form of government served as scope. It is only national in character, that is to say
the beginning of the legal order. The advances in the conservatively oriented to the time, place and individu-
social and political life of the people continued until the ality of a particular group of people.
people developed into a body politic, welded together by
common centers ofinterests and purposes to which the 8. NATURE OF THE LAW
people submitted themselves with one accord. Karl Freidrich von Savigny enunciated historical
jurisprudence in his work entitled On the Vocation of
The presence of the historical element in the law Our Times for Legislation and Jurisprudence. In this
is thus manifested by at least two important marks: publication, Savigny vigorously opposed the plan of
1) the changes in the social existence of the people, and
2) the progressive conditions of their politico-legal
development. These historical facts are unavoidable
and are still in progress, although they may not have 7ALLEN, C.K., t....w IN lliE MAKING, 44, Fourth Edition. Oxford
University Press, London.
8SAVJGNY, K.F.• ON lliE v<>CATION OF OUR TIMES FOR LEOISl.ATION AND
J URISPRUDENCE, 134.

6For example. Executive Order No. 27 (1949) which created 9stammler, R., FUndamental Tendencies In Modem Jurispru-
. the Code Commission.
dence, 21 Michigan Law Review, 646.
·~
80 LEGAL PHILOSOPHY
HISTORJCAL PERSPECTIVE 81
Professor Anton Freidrich Justine Thibaut to codify the
civil laws of the various Germanic provinces on the A THE 0BLU11ACS OF A PEOPLE

basis of the principles of Roman Law. ProfessorThibaut While human beings have the distinct faculty to
advanced his proposal in an article entitled On the form ideas and concepts, they needed language as a
Necessity of a Common Law for All Germany. In this means of communicating their perceptions to others.
work. Professor Thibaut cited the successful applica- For this human beings are well equipped. And having
tion of the Roman Law principles in the French Code achieved a language. they began to articulate them-
.. Napoleon. Thibaut felt strongly that the French expe- selves by means of their opinions, beliefs. longings .
rience could also happen in the codification of the civil usages, traditions, idiosyncracies. arts, customs, and
laws of the different Germanic provinces. In this superstitions. This huge mass of oblutiacs reveals the
famous debate, IO Savigny argued vigorously that national identity, character and genius of a people.
Thibaut's proposal was an affront to the German Together they form the common consciousness and
volksgeist. Savigny insisted that the use of the tradi- intelligence of the people.
tional legal materials of a people is the better approach
to the task of codification and lawmaking rather than It is not easy to say when the national character
the use of an alien legal system. and intelligence of a group of people first emerged and
under what conditions they flourished . All that can be
In determining the derivation of the law, Savigny done in this regard is to have a feel for this point in the
directed attention toward its seedbed. In the words of people's existence and evaluate its significance on the
Henry Sumner Maine (1822-1888), the acknowledged legal order. This, of course, is not capable of immediate
leader of historical jurisprudence in England, "the law proof. But it can be assumed that each group of people
is the product of the huge mass of beliefs. opinions, has its own common consciousness about its national
prejudices. and even superstitions of a people produced identity and character. For historical jurisprudence
by institutions of human nature reacting one upon this hypothesis brings some degree of coherence into
another." 11 But the seedbed of the law given by Maine an otherwise gray area about the emergence of the
is not quite adequate to explain the different treasuries volksgeist or diwayQJL
of the folksoul and, hence, incomplete to contain the
jural and nonjural materials of a group of people. In B. THE FOLKSOUL
other words, it fails to take into account the other vital The folksoul (diwayan) is composed of several ele-
aspects of the national character and genius of a ments. each element a treasury of the national identity,
people. Indeed, Maine explains only the existence of character and genius of a people. While these elements
two of the many treasuries of the folksoul. belong to the folksoul they are distinct from one an-
other.
lORelman, K.. The Historical School Against Codifi.catton, 37
American Journal of Comparative Law, 95.
11 MAIN~:. H.S .• EARLY H1sroRY m· INs-nru110Ns, 360. Henry Holt
,; & Co .. New York.
82 LEGAL PHILOSOPHY HISTORICAL PERSPECTIVE 83
(1) Folklore (bugtong), which are drawn from the experiences and
In this treasury are deposited the beliefs and experiments of the people that have been accepted to be
traditions of a group of people. These beliefs and good for their welfare. An example of an old belief
traditions. which are unrelated to belles-lettres, con- (paniwala) about the power of an idea or thought ls
stitute the folk learning or folk wisdom handed down expressed in the following bugtong: ·wa1ang pintong
from generation to generation in substantially the same pinasukan flgwtit nakapasok din sa kaloob-looban." A
form and content. It ls the national confidence and faith free translation ls: No door was there for it to enter but
" which the people needed for their common welfare and somehow straight inside it did get in." Another example
survival. That is why beliefs and traditions have been of an old tradition (paniwala) about the authority of the
called lore- the learning of the people. This element of chieftain or head of a barangay ls strikingly expressed
the folksoul is carried by Maine leavlngjust three in his as follows: "Afig pafig-ulo ay n.asa sa ibabaw at ilalim
fig batas." Translated it means that the head or chief-
classification.
tain is both above and under the rules and regulations
Folklore may survive in the form of epic tales. A of the people.
good example in the Philippines is the epic of Iba.Ion.
which ls an ancient tale of the Bicolon region during the (2) Folksaylng
reign of Handon. It tells of the emergence of the This treasury of the folksoul is composed of the
Bicolanos from scattered groups to an agricultural opinions of the people. These opinions are stronger
community where a mode or system of governance was than mere impressions. They are expressions or an-
practiced. There are other examples, like the lndirapatra nouncements of orders and policies which the mem-
which ls the epic tale of the Muslims of Lake Lanao: the bers of the community are expected to follow.
Biag ni Lam-ang, the epic tale of the Ilocano region: the
Tuwaang of the Bagobos of Davao: the Maragtas of The opinions of the people may appear in the form
Paninipay (Pan-ay) where Datu Sumakwel's code of of maxims and sentiments. A maxim is a short or terse
laws ls found antedating the English Magna Carta by statement containing a general truth or a timeless rule
almost a century and showing the aptitude for law and of conduct. A sentiment is a settled sense, view or
order of the people who settled in Panay. disposition colored by feeling. This element of the
folksoul is carried by Maine leaving just two in his
In this treasury of the folksoul is also found the classification.
tales of bravery and sacrifices of the people and their
heroes. This ls the reason why a group of people is Folksayings are either social or jural in nature.
indeed characterized, among other distinctions, by a Those that are social in character include homely
commonality of heroes. admonitions, advices about practical living, instruc-
tions in good manners, and moral statements. There
, But a great deal of a people's beliefs and traditions a re many Filipino maxims (sawikain) and sentiments
'" appear in the form of parables (talinhaga) and riddles (sabO containing the social feelings of the people. One
84 LEGAL PHILOSOPHY H ISTORICAL PERSPECTIVE 85

is:"Mabuti na aftg mamaLay na malinis aftg bud.hi/ control. This is a folksaytng that has been expressed in
Kaysa mabuhay na parang pusali." A free translation positive law dealing with the ownership of a landowner
is: It is better to die with a clean conscience than to live of the fruits naturally falling from the trees belonging to
in corruption. Another example of a maxim containing an adjacent landowner.14 It is also expressed in posi-
the social feeling of the people is: "Pag-aasawa'y di tive law in the form of a right to demand that the
biro/Kanin bagang isusubo't iluluwa kung mapaso." A branches of a tree extending or spreading over one's
direct translation is: Marriage is a serious step to take/ property, garden or yard be cut off and if it be the roots
It is not like taking food which one can drop when it of a neighboring tree within his property the right to cut
burns the mouth. Still another example is: "Kumindat them off himself. 15 Another example of a folksaytng
sa dilim." Translated it means to wink in the dark. which is jural in nature is: "Daig ng maagap aftg
Since darkness hides all gestures, this aphorism signi- masipag." Freely translated it says that a busy person
fies the futility of certain efforts or uselessness of is nothing compared to one who immediately takes care
certain actions. For still another example . "Maglubid of his interests. This finds expression in positive law in
ng buhaftgin." Translated it means making rope out of the provision that when the same movable property is
sand. Since this is an impossible task to do, this sold to different persons the ownership thereof vests in
sentiment emphasizes the height offutile struggle. One the vendee who first takes possession in good faith. If
last example expressive of the social sentiment of the it be immovable property, then ownership thereof is
people is: "Kung mainit aftg kalan/ Huwag hipuin ng di acquired by the vendee who in good faith first recorded
na masaktan." It means avoiding situations that may the sale in the registry of deeds where the property is
be harmful. situated. But if there is no registration. then the
property goes to the vendee who in good faith was first
There are folksaytngs that are jural in nature. An in possession. and in its absence to the vendee who
example is: "Aftg mag-asawa sa ariarian ay iisa." presents the oldest title acquired in good faith.16
Freely translated it says that husband and wife have no
separate property. It contains a conscious policy of (3) Folkway
absolute community of property.12 This system of This is the third treasury of the common con-
property relationship between spouses is now embod- sciousness and national character of a people. Accord-
ied in the positive law of the Philippines. 13 Another ing to Professor Georg Fredrich Puchta (l 798-1846), a
example of a folksaytng which is jural in nature is: distinguished student of Savigny, folkways are com-
"Huwag kang pumasok sa bakuran nino man ftg huwag posed of customs and usages of the people which make
kang masakupan." Translated it says do not enter the them reliable expressions of the folksouI.17
premises of another if you do not wish to be under his
14Article 681. Civil Code of the Philippines.
l 2R£PORT OF ntE CODE COMMISSION ON 111E PROPOSED C IVIL CODE OF 15Article 680, Civil Code of the Philippines.
48. Bureau of Printing, Manila. 16Arucle 1544, Civil Code of the Philippines.
,,..
mE Pl m J l'PINES.
13Arttcles 198 to 211. Clvll Code of the Philippines: Chapter l 7PucHTA, G.F .. 01rru11>~:s OF J umsP1<um:NcE, 38. Hastie Trans-
3, Title IV. Family Code of the Philippines. la tion. Edinborough Pres s. London.
86 LEGAL PHILOSOPHY HISTORICAL PERSPECTIVE 87

Customs and usages are widespread ways and rural areas. At this stage ofthe courtship, the man does
practices which have evolved openly out of the reactions not talk at all with the girl. His eyes, however. follow her
of the people to the same demands, challenges and every move. Almost from the beginning, the girl is
situations. The first uses of folkways were to aid life in conscious of this romantic interest but she, too. does
the environment in which the people have found them- not talk with him, although she may return glance for
selves. They were enforced by social sanctions. It is at glance. The suit becomes formal when the man calls on
this point that folkways differ from habits. There are no the girl in the presence of her parents or guardian.
sanctions to enforce habits even though they may arise
out ofthe reactions ofindividuals to recurring challenges There are many jural folkways that have been
and needs. Of course, if habits are both widespread and incorporated in the positive law of the Philippines. Only
rational, then, they may become customary with the a few can be considered here to serve as illustrations.
people.
One is the folkway of pagmamagulang. Roughly
Thus. folkways, like folksayings provided the first translated this means parenthood. This refers to the
sources fo the law. Many questions and problems exercise of joint parental authority over the common
involving peace and order in the community were solved children of the parents. This fokway is expressed in
on the basis of the folkways. Since they exist in a social positive law in the Philippines. IS This is quite different
context, their compulsive nature is traceable to their from the provision of the Civil Code of Spain which was
social significance and influence in the community. To applied in the Philippines until 1949. Under the
put this in another way, the obligatory nature of the Spanish law, parental authority is exercised by the
folkways stems from the deep-seated desire of the father and in his default by the mother. Another
members of the community to keep the respect and folkway is the lupon sanggunian. This advisory body
esteem of the community by upholding the folkways. exercises a great deal of influence over matters involv-
Thus, it may be said that the sanctions attached to the ing the family. Until the effectivity of the Family Code
folkways are both internal and external. Folkways have of the Philippines in 1987, this body was expressly
also passed the tests of time and crisis. And it is due to recognized in the Civil Code of the Philippines.19 An-
this phenomenon that they have survived as definitive other folkway is the system of maybahay. The word
norms of activity and conduct. This treasury of the maybahay is a contraction of the phrase "may ari ftg
,, folksoul is not included in Maine's classification. bahn.y." Not very long ago, when a husband introduces
his wife to someone he says. "Siyaaftg aking maybahay."
There are many storied Filipino folkways There is no equivalent word in English for maybahay.
(kaugalian}. Like folksayings, folkways are social in This folkway pertains to the management of the
nature while others are jural. Of the former, one that
has survived to the present day is ligaw-tiftgin. which,
directly translated, is courtship-by-looking. It is a 18Article 311. Civil Code of the Philippines.
quaint and romantic practice (ugalQ especially in the
,..' l 9Articles 252-254. Civil Code of the Philippines.
88 LEGAL PHILOSOPHY
HISTORICAL PERSPECTIVE 89

household affairs by the wife. This folkway was also folkway, the rules governing dowry were omitted in the
expressed in Philippine positive law.20 Civil Code of the Philippines.

(4) Folksong
Another folkway is the Tagalog bigay-kaya. the
Ilocano sab-ong, the Visayan bugay. Titis folkway is a This treasury of the folksoul reflects the musical
donation given by the groom to the parents of the bride. expressions innate to a people. Each folksong may be
The amount varies in accordance with the groom's sung in different ways due to local coloring or accent,
•• means. Aside from this gift, there were other special although the basic tune is maintained. At other times.
amounts which virtually increased the donation. There however, the verses are merely chanted or recited.
i}.the panghimuyat, which is about a fifth of the regular Folksongs are almost always anonymous. They are
dohation. This is given to the bride's mother to compen- passed to succeeding generations. In the process. the
sate her for the sleepless nights spent in taking care of folksongs may undergo changes.
the bri<!e when still an infant. There is the bigaysuso.
There is no fixed amount. This is given to the wet nurse, In the Philippines, the songs of the people (awit) may
in case there was one. When the marriage arrange- be a lullaby or cradle song like the Duayaofthe Ilocanos.
ments have been agreed upon, the taklubanfollows. The the Tulog na Bun.so of the Tagalogs. and the Ili-Ili Tulog
bride's parents may donate to the couple the equivalent Anay of the Visayans, or a humorous lay like Telebong-
in money or property of the total amount given by the telebong, or a work song like Magtanim Hindi Biro, or a
groom's parents. love song or serenade (ktmdiman). or a patriotic song
(tagumpay). or a song expressive of the simple life like
Still another example is the bigaypayo. Titis refers Bahay Kubo. Folksongs are set to indigenous and
to the advice coming from the elders on important distinctive tunes (himig).
family matters. Until the Family Code of the Philippines
took effect in 1987, this folkway was provided in Article (5) Folkdance
312 of the Civil Code of the Philippines.
This is another treasury of the common conscious-
ness of a people. In this category of the folksoul are
In the Civil Code of Spain, which was applied in the
included the dances indigenous or unique to the peo-
Philippines until it was superceded by the institution of
ple. They are performed to folk music eilher singly or
" the Civil Code of the Philippines in 1949. are certain
in company with others. It is possible that they were
Spanish folkways which were unknown to the Filipinos,
religious ceremonies in the beginning. Folkdances are
e.g., dote, censos, usos, and habitacion. The dowry, for
rhythmic and patterned succession of bodily move-
instance. is not a Filipino ugali. On the contrary it is ments with their own distinctive meaning and signifi-
the parents of the groom who give property to the bride cance.
by way of donation propter nuptias. Not being a Filipino
There are two characteristics of folkdances. One is
,,.• 20Artlcle 11 5 . Civil Code of the Philippines. lhe signifiance or translation a Ltached to them. The

i.
90 LEGAL PHILOSOPHY HISTORICAL PERSPECTIVE 91

other is that they are not for gay and happy occasions famous one in the Maranao folkart is the sari-manok
alone but even for grim and difficult times. design.

Folkdances depict the diverse influences on and But folkart flourishes only when there are plenty of
adaptations to the life of a people. that is to say their materials upon which it can be applied. In the Philip-
idiosyncracies and even their superstitions. Thus. pines, for instance. the abundance of jusi and pifl.a
folkdances are full of vital folk quality. There are plants have had a good deal to do in the development of
folkdances which, in some form or manner. are related Pilipino skill in extracting and processing delicate fibers
to or connected with those which have to do with from which gossamer pifl.a andjusi cloths are made.
rituals. festivals, ceremonies, or simple frolics. There
are appropriate folkdances dedicated to the people's 9. LIFE OF THE LAW
objects ofreverence and awe, folkdances which have to Undoubtedly during the long time before the estab-
do with ceremonials like war or hunting. folkdances lishment of the legal order. that is to say law and
connected with celebrations like wedding or thanksgiv- government. the conduct of the people was governed by
ing. folkdances which have to do with love like dances the folksoul or diwayan. The reason for this is that the
of courtship or rejection. and folkdances imploring folksoul or diwayan had a great deal of moral suasion
deital assistance like fertility dances. This particular and significance. During the course of time many
element of the folksoul exhausts Maine's classification. opinions. beliefs. usages. traditions. and customs were
either discarded or improved. Those that survived the
(6) Folkart interactions of human relationships and institutions
This is the sixth treasury of the life and spirit of a and have permeated the people in common eventually
people. This category includes skills peculiar to a solidified into the volkrecht or kautusan.
people applied to the creation or fabrication of objects
of art or objects of utility. To a greater extent. the first Thus. for historical jurisprudence. the folksoul
objects of skill or ingenuity were the result of adapting became a "storied and documented being,"21 no longer
natural things to human use. Later came of objects of a theory but a historical being embodying the soul and
beauty and color. But even those that were first turned spirit of the people. From this observation point of the
out as utilitarian reflected the art of the people. They historical school ofjurisprudence, the law is considered
as "the revelation and development of the national
carved figures and painted or embroidered designs in spirit."22 This does not necessarily mean that nation-
their fabrics. plates. spoons. bowls, knives. bolos. and alism is an important aspect of the nature of the law. 23
musical instruments.

In the Philippines. some of the artful designs still 21 BARKEI~. E., INTRODUCTION TO GIERKE, NATURA!. L\w AND 111E
Tl1E0Hv m- Soc1E1Y, 52. Cambridge University Press. London.
existing today date back to the time when the first 22Ross. A. TowARDS A REAUs11c JuR1smuDENCE, 33. Elnar
barangays of people coming from the south and south- Munks§aard, Copendagen.
.
It
west settled in the islands of Panay and Mindanao. A 2 PoUND. R.. INTEHJ'RETA110Ns OF LEGAL H1sT01<v, 19. Harvard
University Press, Cambridge.
92 LEGAL PHILOSOPHY HISTORICAL PERSPECTIVE 93

For while nationalism is akin to patriotism since it family and clan. This was due to the fact that the
thrives on the normal attachment of the people to their earliest form of social living was in a group of kindred
homeland. there is always the danger that it may people. Later this relationship broadened into a hori-
become the idolatrous worship of the nation. zontal or communal type of relationship. Here several
groups formed alliances for certain purposes. e.g., to
The organic connection of the law with the life and ward of some common danger, to pursue some com-
spirit of the people emphasizes the phenomenon that mon interests. or to perform some common ritual
"for law there is no moment of absolute cessation."24 advantage or obligation. In this new solidarity, the
The law is subject to the same changes that happen to relationship naturally tended towards permanence.
the other aspects of the life of the people. As such, both Alliances were continued because they were found !o be
its development and impairment are proportionately good for the common welfare. Eventually. the compel-
related to the development and decline of the people. ling need to continue this arrangement was realized in
Thus. while the law grows with the develpment of the a more or less permanent one. binding all within its
people. the law can die too with the demise of the nation reach.
through the loss of the nation's individuality. 25
Characteristically. each communal group was at
10. BASIC POINTS OF HISTORICAL first a socio-economic unit. But the informal relation-
JURISPRUDENCE ship that existed among the several groups paved the
way toward an ever widening circle. combining and
In the framework of the historical view as to the
merging them into a large-scale territorial relationship.
nature of the law. two important points stand out.
At this stage. the interests of the people became co-
First. the stale is regarded as the highest expression or
extensive with the entire territory. expanding the rela-
personifica lion of the law. Second. the law is found and
tionship on a person-to-nation basis. Thus it was that
not deliberately made.
national self-awareness emerged where the individual.
A. STATE AND FOLKSOUL
without shedding his narrower relationship with his
family and region, became related. and, in certain
Since lhe law embodies the social and political instances. even subordinated. lo the national Interests.
progress of the people. it follows that its development At th.is stage. the people reached ils ultimate national
has undergone several stages. development attaining a more complete structure for
the satisfaction of the common Hfe.
The first relationship that existed among the
people was a vertical or personal one. Il existed in the In the course of the growU1 and development of the
people through these stages, the process of keeping
peace and order grew apace with it. Since lhe physical
24SAVICNY,K.F.. 0 nm VOCATION 01' OUH 11ME:S FOH b : GISIA110N AND conditions of peace and order are the necessary bases
JurusPRUDE 17: HALL, J .. op. cit.. 87.
E.
of human existence in a social context. it is difficult to
• 25SAVICNY, K.F.. op. cit., 27 .
"'
94 LEGAL PHILOSOPHY HtsroRicAL PERSPECTIVE 95
imagine a group of people where peace and order of the past." The state is, then. considered as the highest
some kind did not exist. During the first simple stage expression of the folksoul. Indeed, it is the highest
of relationship, simple methods or techniques of main- national structure erected by the socio-political devel-
taining the people in the conditions of peace and order opment of the people.27 Putting the point in another
were applied. A very obvious method would be the way, the body politic is considred by historical jurispru-
direct appeal of a person to the head of the family or clan dence as the final juristic personification of a people.
whenever peace and order was broken by some wrong-
'• doing. And usually the action of the head or chief was B. LAw NoT DELIBERATELY MADE
equally direct and swift. As progress and development The other point posited by historical jurisprudence
continued, the process of keeping peace and order was is that the law is not deliberately made by the effort of
harmonized within the limits of the ·early horizontal human will but is discovered in the common conscious-
solidarity. and something like a communal or widespread ness of the people. As Rudolf Stammler puts it, "the
type was set up, which in some aspects superseded the folksoul awakens this conviction and is responsible for
earlier methods of social ordering. Eventually, it became it."
an involved process until it gave way to the more
complex machinery of the body politic, where repre- However, Dean Roscoe Pound criticized this view
sentatives are directly chosen by the members of the as "juristic pessimism."28 But historical jurisprudence
community to form a more compact unit for the purpose has remained unperturbed in its view that reason alone
oflegal ordering. Indeed. the process of ordering in the cannot work miracles in legal development nor work
third stage has become an art in itself. where the reins wonders in constitution making, codification and legis-
of government are placed in the hands of, and practised lation. Thegrowthofthelawisanevolutionaryprocess.
by. a professional group in the community. It does not proceed from the peremptory or arbitrary will
of the legislators or the judges. Indeed, it would be too
During this long period of growth and develop- great a task to create law de novo by the sheer effort of
ment. the community continued to be bound together reasoning. For examples, the law of property and the
by common centers of interests and purposes. This law of contracts, together with their ramillcattons, may
togetherness has become one of the distinctive marks . be given. It is inconceivable that a lawgiver or lawmaker,
or characteristics of the community. Th us. in historical contemplating or planning a civil code could have
,, jurisprudence, the state is not a fortuitous occurrence. possibly devised and provided for the complexities of
The state is the invisible personality of the people such laws. The growth of a legal system is closely
originating "in the people, through lhe people. and for
the people. M26 Paul Vinogradoff has pointed out that
"the present existence of the state develops with the
immanent necessity from the elements furnished by 27JONES, HISTORICAL IITTRODUCTION TO llfE ThEORY OF LAW, 58.
Harvard University Press, Cambridge.
28Pound, R.. The Theory ofJudicial Decisions, 36 Harvard Law
26sAv1GNY, K.F., I SvsTEM m · M om:1m ROMAN LAw. 19. Review, 802, 822.
96 LEGAL PHILOSOPHY
HlSTORJCAL PERSPECTIVE 97
related to the growth and development of a people, the
expansion of commerce and trade, as well as the 11. SIMILARITY OF DIFFERENT
interdependence existing among different groups of LEGAL ORDERS
people. As Justice Benjamln Cardozo of the Supreme Curiously enough, historical jurisprudence is con-
Court of the United States puts it, "history built up the fronted with the task of reconciling its concept of the
system and the law that went with it."29 nature oflawwith the phenomenon that in some groups
of people there is a simllarity in their legal orders.
Thus, historical jurisprudence posits the idea that
since the law "cannot be realized in the individual but A. HISTORICAL REASON
only in the species," then the law is the product of the A people which has climbed the ladder of socio-
national genius or common consciousness, developed political development cannot be pure, racially or other-
by the steady growth and development of the people wise. In the process of development ofa group of people,
themselves. But while the law lives in the common many outside factors or foreign trait-complexes, as the
consciousness of the people, its meaning and impact on anthropologists put it. may have been assimila td by the
the community are handled by a specialized group of people. Thus, political, commercial, religious and other
individuals versed and skilled in the law. These are the types of contacts with other groups of people have had
men oflaw- jurisprudents and jurists. They follow the a great deal to do with the resulting simllarity or even
evolution and progress of the folksoul by legal historical uniformlty in the legal orders of different peoples.
research. This means that the object of legal research These outside contacts also explain the phenomenon
is oriented to the oblutiacs of the people. As Frede that some aspects of a foreign legal system inconsistent
Castberg puts it, since the historically given law is the wit~ the oblutiacs of a people comlng under the domin-
object of legal research the latter became "conserva- ion of another group of people need a considerable
tively oriented, not reformist: it became national, not degree ofimpositlon. Ultimately, however, such outside
universal, in aspirations. n30 They are engaged in the and unacceptable provisions of the foreign law are
formulations of the technical legal precepts, viz., legal abolished. One example is worth repeating. When the
rules, legal principels, legal concepts, and legal stand- Civil Code of the Philippines was insUtued in 1949,
ards. Taken as a whole. these specialists become the certain provisions of the Civil Code of Spain touching on
agency or the instrumentality of the people in the · dote, censos, usos, and habitacion, which were incon-
articulation and communication of the law. sistent with the oblutiacs of the Pilipinos, were abol-
ished.31

29A treatment of the ortgin and development of the law of B. JURISPRUDENTIAL REASON
property and the law of contracts Is found in EvoumoN or-1...Aws: SEu:CT
REAn1NGs oN 11iE OmG1N AND DF;vELOPMENT ol' LEGAL INs·nnmoNs. Com- The precepts of justice and fairness are said to be
piled by Kocoure k and Wlgmore, Little Brown and Company.
Boston. 31 REPORT OF THE CooE CoMM1ss10N ON TI~E PROPOSED CIVlL CooE OF
30AMEmCAN JOURNAL oF CoMPARA1WE LAw, 389. m i,; P HILIPPINES. 7. Bureau of Printing, Manila.
98 LEGAL PHILOSOPHY HISTORICAL PERSPECTIVE 99
permanent and present in all men everywhere since person. For instance, the Philippine legal order pro-
they are impressed in the human heart and mind. vides as a general rule that actions prescribe by the
Furthermore, they are supposed to be basic or identical mere lapse of time fixed by law.33 Thus, in the sec-
for all peoples. The precepts of justice and fairness ondary application offirst principles the similarity in, or
ought. therefore. to explain the resemblance or similar- uniformity of, some aspects of the legal orders of
ity in some aspects of the legal orders of different different peoples is still explanable.
peoples.
It is in the details that the legal orders of different
On general or first principles, the similarity or peoples are no longer possible. One reason for this is
uniformity in the legal orders of different peoples are that details are only means to an end. Thus, and still
easily grasped and understood. Take, for instance, the pursuing the same illustration, the period within which
norm that no one can enrich himself at the expense and to bring the action to recover may not be the same
misery of another. This self-evident norm is based on anymore with different peoples. The prescriptive period
the universal precepts of justice and faimess32 within which to file the action will depend largely on the
folkways of each particular group of people. 34
But the question of similarity or uniformity in the
subsequent applications of general or first principles 12. VALUE OF HISTORICAL PERSPECTIVE
poses another problem. Nonetheless, the concept of a
regular and progressive development of the law should While the law for the historical school of jurispru-
also explain the similarity or uniformity of different dence is considered to have sprung from the oblutiacs
legal systems even in the secondary applications of of the people and developed with the drive of their
cultural identity either by creating, improving or dis-
general or first principles. Thus, different peoples may
carding concepts and rules, its recording depended
have particular legal rules, more or less similar, for the
entirely on their degree of civilization. Thus, the
resolution of the unjust and unequal situation referred
arrested civilization of the Polynesian-Malayan peoples
to in the example given. They may have certain positive
rules concerning the prescriptive periods of action to explains their almost complete lack of recorded jural
materials. In this situation, one of the best ways to
recover what has been unjustly taken from another
fathom the legal history of these peoples is to study their
oblutiacs.
32Artlcle 22, Civil Code of the Philippines, provides that
·every person who through an act or performance by another, or any
means, acquires or comes Into possession of something, at the
expense of the latter without just or legal grounds, shall return the ~3Artlcle 1139, Civll Code of the Philippines.
same to him. According to the Report of the Code Commission, on 4rhe Civil Code of the Philippines devotes three chapters on
p. 41, •tt is needful that this ancient formula be clearly and prescription of actions in Book Ill, Title V. The period of prescription
specUlcally consecrated In the Civil Code to the end that In cases not for all actions a re given, whether provided in the Code or special Jaws
foreseen by the lawmaker, no man may unjustly benefit himself to except those cases where particular provisions prescribe a different

r the prejudice of another. period of time for a give n a ction.

'~
I
100 LEGAL PHILOSOPHY HI&TORICAL PERSPECTIVE 101

The historical perspective of the nature of the law a statute. This is a jural expression of the profound
is also valuable and significant to policy makers and sense of, and love for, righteousness andjustice of the
government functionaries. They can draw on the people. Bocobo, 38 a recognized and respected author-
volksgeist or diwayan. Thus, legal research is to be- ity on the Filipino folksoul, states that this trait is
come oriented to the soul and spirit of the people. This ..imbedded like a gem in the elemental rock of the
element of value carries with it a special significance Pilipino soul, and has made our people rebel against
whose implications are far reaching. The historical every form of tyranny." This national sense or trait
view of the nature of the law highlights the point that is treasured in the following sawikain or sabi of the
rules and regulations governing human conduct can people:
better survive the tensions of social and political exist-
ence if and when they are in accordance with the 1. Ilubog at dagnan man aftg katwiran/Ay pilit
kindred consciousness and convictions of the people to itong lulutang.
whom such rules and regulations are. after all, ad- (Right though sunk and weighted/Will neverthe-
dressed. 35 Karl Fredrich von Savigny emphasized that less rise to the surface.)
this approach to the problematic issues of legal order- 2. Iti linteg isut takUn daguiti nalap-it.
ing avoids uncertainty and accident in the development (Right is the bulwark of the weak).
and application of the law. 36
Articles 19 through 36 of the Civil Code express the
In the Philippines, this element of value has been Pilipino folkway concerning human relations. In the
demonstrated. The Civil Code, for example, is partly words of the Code Commission, they ·are basic princi-
based on the oblutiacs of the Pilipino people. 37 ples that are to be observed for the rightful relationship
There are several confirmatory provisions in the between human beings and for the stability of the
Civil Code of the Philippfries that may be cited, aside social order." They are indicative of "certain norms
from those already given elsewhere in this chapter. that spring from the fountain of good conscience" of the
people and are ..more precious than life and riches in
the moral code of our people." This sense or trait is
Article 10 of the Civil Code of the Philippines indicated in the following sawikain or sabi of the
provides for the presumption that the lawmaking body people.
intended right and justice to prevail whenever it enacts

35Lvs!AS (460-400 B.C.) one of the most eminent Greek 38one-tlme Professor of Civil Law and Dean of the College of
advocates has a saying which has verity In this connection: ·Laws Law. Unlverslty of the Philippines, later President of the Unlvertsty
are no better than the lawmakers.· of the Philippines. and Chairman of the Code Commission which
36SAVJGNY, K.F. , op. cit., 133. produced the Civil Code ofthe Philippines. The building housing the
37REPORT OF TIIE CODE COMMISSION ON TI-IE PROPOSED CIVIL, CODE OF University of the Philippines LawCenterls named In and a memorial
TI-IE PH1uPPINES, 2. Bureau of Printing, Manila. to his honor.
102 LEGAL PHILOSOPHY H1srorucAL PERSPECTIVE 103
1. Mahalaga aflg puring patay/Sa masamang obscurity or insufficiency of the laws. The proposed
puring buhay. (It is better to be dead with provisions in the draft provide that if a law does not
honor/Than to be alive in dishonor.) solve a disputed point or matter in litigation. the
2. Masira man sa pami.mil.ak/Huwag lamang sa folkway shall govern. In its absence. the folklore or
paftguflgusap. (It is better that riches are lost/ paniwala of the pepole on justice and equity may serve
Than to break one's word.) as guides to judicial determination. And in the further
event that the point at issue in the litigation remains
unsettled. then the folksaying or sawikain of the people
Another confirmatory provision in the Civil Code of may be utilized as further guides to adjudicative deter-
the Philippiens of the value of the historical view of the mination. The Code Commission listed 28 folksaytng
nature of the law is the system of absolute community for that purpose. However. Congress in instituting the
of property between spouses. As pointed out earlier, it Civil Code expunged this particular draft provision.
is a system that is traditional in the Filipino way oflife. But it seems that courts can still be guided by these
It is expressed in Articles 198 through 211 of the Civil maxims if and when necessary. There is nothing the
Code of the Philippines. As explained by the Code matter with them since they are in the folksoul.
Commission, ..it is nearer to the ideal offamily unity and
is more in harmony with the traditional oneness of the
Pilipino family." The foregoing illustrations, which are by no means
exclusive. indicate that with or without modifications
Still another confirmatory provision of the Civil the historical doctrine of the nature of the law as the life
and spirit of the people is valuable and practicable in
Code is the treatment of the family as a social institu-
tion in Articles 216 through 222. These legal provisions the legal ordering of society.
were modified by Articles 149 and 150 of the Family
Code of the Philippines. They reflect the soul and spirit
of the Pilipino people on family solidarity. The folkway
concerning the family home is another confirmatory
example. According to the Code Commission, the

I
family home is a ..symbol of filial affection and cherished
memories." This folkway was embodied in Articles 223
through 251 of the Civil Code of the Philippines. It is
now covered by Articles 152 through 162 of the Family
Code of the Philippines.
In the original draft of the Civil Code of the Philip-
pines, there were provisions intended to supplement
Article 9. which provides that no judge or court shall
decline to render judgment by reason of the silence.
CHAPTER III TELEOLOGICAL PERSPECTIVE 105

(2) The Jherinian Concept


THE TELEOLOGICAL PERSPECTIVE (a) Law of Purpose
(b) Social Mechanics
B. Value of the Utility Supplement
13. Labels 20. The Hegelian Concept
14. Natural Law Basis 21. The Neo-Hegelian Twist
15. The Greek Concept 22. Modem Teleological Analysis
A Absolute Justice A Juristic Approach
B. Rational Justice B. Ethical Relativity
C. Particular Justice C. Interest of the State
D. Law as the Product of Reason Related to
Justice and Equity 23. Essential Attributes of the Law
16. The Roman Concept 13.LABELS
A Cicero
B. Gaius The label "philosophical jurisprudence" has been
used to identify the thinking and method of this juristic
17. The Aquinian Concept school. The reason for this is that the major part of its
A. Justice discourse lies in the realm of metaphysics. But this
B. Law and Sovereignty label is not entirely satisfactory. As a method of
C. Immutability of Law achieving an end, philosophy is not exclusive with this
18. The Kantian Concept juristic school. For instance. the methodology of the
A Human Consciousness and Conduct historical school ofjurisprudence is also philosophical.
(1 ) The Principle of Rightness
(2) The Categorical Imperative It would seem. then, that "teleological jurispru-
B. The Sense of Striving for Rightness dence" is more appropriate in designating the thinking
C. Metaltgal Basis of Law and method of this particular school ofjurisprudence.
Besides, this label emphasizes the fundamental point
19. The Utility Supplement
ofview of this juristic school: that the law is ordained for
A. Stages of Modem Utilitarian Ethics
the achievement of the precepts of the natural law,
(1) The Benthamite Concept
namely, righteousness, j ustice, fairness, and equity in
(a) Nature Basis
the legal order. 1 For this juristic·school, the achieve-
(b) Measure of Utility
(c) Application in the Legal Order
lpATON, G .W .. A TuxrnooK IN JURISPRUDENCE, 30. SECOND
EDITION, CLARENDO~/ PRESS, OXFORD.

~ j
LEGAL PHILOSOPHY
TELEOLOGICAL PERSPECTNE 107
106
mentor realization of these precepts in the legal order still drawn upon even today by philosophers a nd
jurisprud ents.
is the telos of the law.
Socrates. Plato and Aristotle believed that good
14. NATURAL LAW BASIS
faith in dealing with one another is the condition of life
The teleological concept of law is based on the in society. Tilis means tha t human beings have a basic
natural law philosophy. For the teleologists. natural idea of the precepts of the natural law en abling them to
law has a great deal more to do in shaping the concept distinguish between right and wrong and to discern
of law than any other idea. Indeed, the teleologists between good and bad. Plato, in particular, criticized
consider the natural law as the most potent force in the philosophers who espouse the idea that might is the
developmen t of legal institu tions a nd legal concep ts. high est type ofrectitude.3 Plato explained that what is
This is b ased on their view that there is a very present important in human relations is not the use of power
bond or relationsh ip existing between postive law and but the observa nce of honesty and good faith for this is
n atural law. In other words , it is upon the precepts of in the nature of human beings. 4 Thus. Socrates. Plato
the natural law that the completeness of the legal order a nd Arits totle found their una ssailable starting point in
can be achieved. This, in turn. explains the teleological the study of the nature of law in the moral nature and
position that the precepts of the natural law are not to good faith of human beings. On this ba sis, not power
be considered as divisions of the law but its very or might. human beings are able to live harmoniously
perfection. With the possible exception of some modern with one another.
teleologists who advocate the concept of the natural law
with a changing content, 2 the teleological school of ju- This is the sam e starting point adopted by the
risprud ence believes that a good legal order can be Bocobo Commission in the codification of the civil laws
deduced from the n atu ral law,. thus making the law of the Philippines. Chapter 2 of the preliminary Title of
u niversally valid for all peoples. the Civil Code deals with the harmonious basis of
human relations for the stability of both the social and
15. THE GREEK CONCEPT legal orders. Article 10, in particular. states that in the
exercise of rights a nd in the performance of obligations
The philosophers of ancient Greece. who were every person must act wi~h justice, observe honesty
'' among the first t hinkers to inquire into the problem of and good faith, a nd give everyone their due.
the nature of the law, felt the need for an unassailable
starting point in the study of the nature of law. The
profundities of Socrates (469-399 B.C.). Plato (429-348
B.C.) and Aritstotle (384-322 B.C.) on this problem are
3 Pl.Aro, LAws. Book X. 399. J owett Transla tion, Clarendon
Press. Oxford.
4 Pi.Aro, TuE REPUBLIC, Book IV, 134. Jowett Translation. Re-
2See Section 22, pages 167-174, infra. For a review of the vised Edition. Wiley Book Company. New York.
natural la w philosophy. See Section 4(b), pages 36-69, supra.
108 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 109

A ABsoLlITE JusrICE and their consequences wou ld be just (virtuous) or


unj ust (vicious).7
In discussing the concept of j ustice. Socrates in-
culcated in the minds of his students two principal Xenophon (430-355 B.C.) records that Socra tes
considerations.5 The first is that no person is intention- emphasized that these two basic considerations exhibit
ally bad or evil because of his or her understanding of the moral nature and good faith of a person guiding him
j ustice. Socrates aroused in his students a love of or her even over the written statu tes of the state.8 The
justice to combat the skepticism of the Sophists. For last portion of Socrates' idea became h is undoing. It
Socrates, the failure to do what is just and avoid what was used as the basis for one of the charges levelled
is unjust is really due to morbid physiological appetites. against him by the Athenean state. Bu t Socrates did
mistakes. or even bad company. The second consid- not waver in his teachings. After he was convicted by
eration that Socrates emphasized is that only the a 500-man jury. Socrates patiently endured the verdict
temperate person knows himself or herself and. thus. condemning him to poison himself to death. even as he
able to bring his or her emotions under control. These professed his innocence of the charges that he refused
considerations are the basis of Socrates' motto: Know to worshiop the gods of the state. that he was a bad
Thyself. influence to the young aristocrats who flocked to his
school. and that he did not conform to the political
With regards to the first consideration. Socrates system of the state.9
drew a distinction between absolute knowledge of jus-
tice (episteme) and mere opinion of justice (doxa). pre- B. RATIONAL J USTICE
ferring the former. With reference to the second con-
sideration, Socrates explained that in relation to the One of the fundamental points that Plato, in tum.
gods a temperate person will do what is virtuous and taught his students is that there is a hierarchy of
just. in relation to rights a nd obliga tions a temperate reality. He drew a sharp dividing line between ideal
person will do what ought and avoid what ought not. reality and physical reality. Plato explained that apart
and in relation to other persons a temperate person will from objects and entitles that are observable to the
act properly. patiently enduring when necessary.6 Thus. physical senses there exists "another timeless dimen-
I
for Socrates. a temperate individual is a good. happy sion of reality." Plato held that this different sort of
I
and sound person able to judge whether his or her acts reality is concerned with "other entities" that yield only
to the amazing power of abstraction of the human mind.
5Socrates did not write anything h imself. His life and teachings
7 rdem
were recorded by his students. Pla to In his D 1ALOGuES and Xenophon
In his MEMORABILIA. 8XENOPHON, MEMORABILIA, IV, 4. J owett Translation. Claredon
6 Pv.ro, GoRGtAS, 385-389. Jowett Transla tion. Claredon Press, Oxford.
Press, Oxford. 9rv.ro, EUTHYPHRO, Church Translation. Bobbs Merrill Com-
pany. Inc .. Chicago. the trial and death of Socrates are recorded In
Plato's Crlto and Phaedo.
llO LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE ll l

To this "other entities" which have reality and distinc- soldier, a lawyer, a teacher, a physician, a carpenter, or
tiveness in the mind or intellect, Plato gave the name whatever. In Plato's society, there is justice when a
"ideas" and held that all objects and activities yielding person fulfills his or her proper function and not take
to the physical senses are only representations of, or up the role and position of another person. 12 Thus, for
named after, certain "ideas" by virtue of their relation- Plato. rational j ustice means the preservation of peace
ships to them.10 and harmony and the prevention of disturbance. In
Plato's s ociety, then, a laborer is to be only a laborer and
J oseph Drake explained Plato's concept of repre- not a teacher, a lawyer is to be only a lawyer and not a
sentational reality by using as an illustration the "idea" farmer. a soldier is to be only a soldier and not a
of the circle. This "idea" existed undoubtedly even liberator. Thus, for Plato. "if a universal genius, who
before any closed plane bending without angles with through wisdom can be everything and do everything,
equidistant points from the center and ending where it comes to the state, he is not to be tolerated and must be
begins was drawn and would still exist if none ever were required to move on ."13
drawn to represent the "idea" of the circle. I I In the
same way. the reality or idea of "justice" exists in the While Plato's concept ofrationalj ustice is n o longer
mind even though one does not see it done or performed on the plateau of the divine, where Socrates' concept of
in fact. Thus, Plato posited the concept of justice absolute justice is nestled, the virtue of Plato's concept
yielding to the rational mind. For Plato, then, human became its own defeat. The very idea that society can
beings are capable of discerning justice from injustice keep a person to his or her secular ordination or class
even in their minds. Rational justice is sufficient to has been discredited on the basis of the ethical principle
enable human beings to attain their moral nature and of meliorism. that is to say the inherent right of human
good faith. keeping their self-respect by doing good and beings to move on and better the quality of their lives.
fulfilling their proper functions in society.
C. PARTICULAR J USTICE
In De Republica. Plato advanced rational justice as Aristotle was Plato's disciple just as Plato was
the central theme of his concept of the law. He Socrates' disciple. ButAritstotlewas a warm humanist
explained that the law is an instrument of doingjustice and "a disciple with the equipment of a formidable
in the state. that is to say preserving peace and har-
mony therein. Rational j ustice dictates that every
individual in the state should attend to his or her own l 2pL.Aro, ThE REPUBLIC, Book III. 433. J owett Translation,
function whether he or she is a legislator. a judge, a Revised Edition. Wiley Book Company. New York; PoUND, AN IJ1ITRO-
Duc110N ro mE PHILOSOPHY OF Lo.w, 76. Yale University Press, New
Haven, Conn.; BARKER, E .. PL.Aro AND His PREDECESSORS, 149, 4th
Edition, Clarendon Press. Oxford.
l OpLATO, METI·lJ\PIrvs1cs, I. v i. Creed and Wardman Translation. l 3PL.Aro, TuE REPUBLIC, Book IV. 4 24. Jowett Translation.
New Am erican Library, New York. Revised Edition. Wiley Book Company . New York; Pound, op. cit., 77.
1 1Drake, J ., Jwisprudence: A Formal Logic, 13 Michigan Law
Review, 34-35.
112 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECfIVE 113

critic." 14 Indeed, Aristotle differed with Socrates and nature and good faith is fair equality. 19
Plato on many questions. One of these deals with the
concept of justice. Aristotle's analysis of justice was a philosophical
breakthrough for it brought the concept ofjustice to the
Aristotle denied S ocrates' concept of absolute jus- level consistent with or adaptable to the legal ordering
tice as too exacting for it demanded the kind of moral of society. Expressed in another way, it is justice that
excellence which is the culmination of all virtues. relates to natura human.a. Aristotle emphasized in this
Aristotle did not also agree with Plato's concept of connection that clearly this is the virtue that human
rational justice because it was still a s u bjectivevirtue.1s beings must relate to. 20 A person, after all, is conscious
of him self or hers<df as a human being, not as an angel
A keenly sensitive humanist. Aristotle observed as Socrates and Plato had made a human being look
that the concept of j ustice advanced by Socrates and like.2 1 Aristotle stated that a person, being gregarious
Plato was simply unworkable as guide to human con - by nature, is social in disposition, that is to say a person
duct. Instead, Aristotle taught his students the "sound needs someone to do good to as a means of self-
sense" view ofjustice so that the good life can be within expression and self-realization. Aristotle was not con-
the reach of human beings. 16 Thus, for Aristotle, the cerned with justice in Plato's ideal state but with justice
concept ofjustice is nothing more ,pretentious than the in its relation to the conditions of society with its
virtue of eptekeia, that is to say justice which grows out imperfect people and imperfect institutions. 22 Put
of the sense of fair equality. In other words, justice is differently, justice is a particular virtu e not a universal
sound and sensible when, in light of events and circum- ingredient in the applicaiton of law in society . In the
stances, it is fair and equal.1 7 In this context, Aristotle thinking of Aristotle, the rigidity of the a dminis tration
insisted that a person cannot be unfairly or unequally of justice, which is apparent in the jurisprudence of
treated even with her or his consent. 18 In different words. Socrates and Plato, should be tempered with fair equal-
consent cannot justify an unfair and unequal treat- ity.
ment. Tilis Aristotelian insight later became the basis
of the Roman law concept of volunte non fit iniwia. On this basis, Aristotle differentia ted between pro-
Thus. for Aristotle, the h allmark of a person's moral portional justice and numerical justice. In the former ,

14MAruTAIN, J .. AN INTRODUCTION ro PHILOSOPHY, 83. Watkin l 91t m u st be stated thatin chrtstian moral theology t he virtues
Transl ation. Oxford University Press, Lond on. of faith, hope and charity. which are the results of God's grace, are
15.ARISTOTIE, Ent1cAN1coMAcHEA, V , l 134B- 1135A Oxford "Uni- considered the dlspositlnos for the good r esiding in human beings.
versitr Press, London. (First Corinthians 13:4- 13).
6BAMBROUGH, R., ThE PH1wsoPHY oF AruSTOTlE, 2 81. New 20ARlsroru:, op. cit. , 1102.
American Library. New York. 2 1B AM BROUGH, R., op. cit., 283.
17.ARisronE, Ent1cA N1coMACHEA. V, l l 29A- l l 29B. Oxford Uni - 22BoDENHEIMER, E., JuRJSPRUDENCE, 10. Revised Edition. Harvard
v er sity Press, London. university press, Cambridge.
18lbld. , l 136A - l 136B.
114 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 115

each person receives what she or he is entitled to on the state but more importantly its effective development.
basis of ability and achievement. In numerical j ustice, that is t o say its condition of actual fulfillment or
each person , regardless of station in life, cou nts for one complete realization. Thus, a thing is said to be in
and only one. While j u stice remained an ethical value, accord with, or realized in, its true nature when it is
in the analysis of Aristotle it is no longer absolute fully developed.
rectitude b u t a distinctively particular value charac-
terized by fair equality. Thus. particular justice is In the case of human beings, their true nature is
rendering as nearly as possible to every person what he that they do not only have a nutritive soul (primitive
or she is entitled to on the basis of what Aristotle called state) but also a rational soul (fulfilled reality). It is this
"the rule of law."23 uniqueness that sets human beings apart and distinct
from other creatures.
This concept of particular justice found applica-
tion in Rodriguez v. Tan. 24 In this case, defendant Tan. In the case of law, its fulfilled reality is found in the
one of the candidates for senator of the Liberal Party. achievement of the precepts of the natural law in the
was proclaimed by the Commission on Elections. He legal order. In another way of putting it, righteousness.
took his oath and discharged the duties of his office. His j ustice. fairness. and equality a re the poten tialities of
proclamation was challenged by the plaintiff. The the la w. To this end all persons are to conform their
Supreme Court ruled that Tan cannot be required to actions because such an end is part of the natural order
reimb urse the salaries and emoluments he had of things. Aristotle. in particular, stoutly believed that
received to the plaintiff who was later declared lawfully the law. viewed in this light and applied to particular
elected. The Supreme Court held that salaries and situations. would provide a generally acceptable solu-
emoluments go to the person who rendered service tion.
because "this is particular justice. that which is fair and
equ al." 16. THE ROMAN CONCEPT
Much of the Roman culture was borrowed from the
D. LAw AS THE PRODUCT OF REAsoN RELATED
Greeks and the Roman concept of the nature of the law
TO JUSTICE AND EQUrIY
is part of that heritage. Rudolph Stammler was rather
To the Greek philosophers, the problem of the hard on the Roman jurisprudents when he said that
nature of a thing is not solved by analyzing its primitive "the Romans simply repeated in the Latin language the
expressions of the Greek philosophers especially the
ideas of the Stoics. "25 It is nearer to the point to state
23AASTOTLE, TI-tE PoLrncs, B~k Ill, 16. Jowett Translation.
Claredon Press, London. Aristotle's intellectual construct Mrule of
'. Jawft Is best understood contextually as regn um; thu s . reign of law
is not merely a rule of law. 25stammler, R., Ftmdamental Tendencies in Modem Jurts-
2491 Phil. 7 24. pr11dence. 21 Michiga n LawJoumal, 21.
116 L EGAL Pl llLOSOPI IY TELEOLOGICAL PERSPECTIVE 11 7

that unlike the Greeks. whose conception of the nature said that individual persons fulfill their promises and
of the law remained a philosophical speculation with comply with their ob ligations not only because they are
them. the Romanjurisprudents subjected it to techni- "intelligent and rational persons" but also due to their
cal analysis and endorsed it with their authority and deep -seated desire to avoid undesirable consequ ences
practica l genius for coloniza tion. which would inevitably follow non-conformity with the
law. 29 The law, then, for Cicero. "is the natural force
that effectively controls society. and its natural func-
Ma rcus Tullius Cicero (106-43 B.C.) learned his tion is to summon the people to obey it by means of
law from Quintus Mucius Scaevola II who was a sin cere commands and avert wrongdoing by means of prohibi-
adherent of the Stoic s chool of philos ophy. Cicero tions. "30
brought the Greek concept of the na ture of the law into
contact with the Roma n legal sys tem a l a time when Bu t Cicero's intelligent and rational persons ap-
there wa s need for s ome m eans of controlling an empire pear to be person s who are born for the supreme virtue
already extending a round a nd beyond the Mediterran ean ofj ustice. for "if man has received the gift ofreason man
Basin, which Cicero admitted "was won by injustice has also received the gift of law, and if he has received
both lo gods a nd men. "26 According to Cicero. s ince the law he has received j ustice also."31 Cicero ex-
humankind "is governed n a tu rally by u tility. then, to pressed the s ignificance of this human destiny when he
rule the different races and cultures under the Roman stated that "th e force ofjustice is s o great that not even
dominion effectively. the law m us t be ba s ed on the those who live by wron gdoing or crime can manage to
principle of utility. tha t is lo say in the inter est of the exis t without some s hare ofjustice."32 With this ethical
ruler a nd not for the interest of the governed ."2 7 outburst. Cicero meant that a person cannot violate her
or his own s ense of ju stice. In the tradition. then. of
Thus. Cicero introduced compulsion as an element Aristotle. Cicero defined justice as "the sentiment which
of the law. He posited the idea that the law cannot be maintains good human relations by means of fairness
an effective means of social control on the basis of and equity. "33
rationality alone but must also be able lo compel
obedience. Without this element Cicero admitted tha t Thus, even with his legal backgrou nd. Cicero did
"Rome would easily b ecome wha t s he was origina lly. a not move the concept of the natu re of the law away from
misera ble poverty slriken village. "28 Cicero s howed the
importa nce of the elem ent of compulsion in the la w. He 29 c1cERO, D ELEG1sus, Book I. vi. 3 17. Keyes Translation. G.P.
Putnam's Son s. New York .
30rdem.
26c1c1mo, D1·: R1·:Pu111.1cA, Book Ill. xi. 201. Keyes Tran slation . 3 1c1cERo. op. cit., Book I. xii, 333. Keyes Translation. G.P.
G.P. Putnam 's Sons. New York. Putnam·s Sons, New York.
'• 271dem . 3 2 c 1cERo, D E REPuBuCA, Book III, xx.ii, 21 1. Keyes Translation .
28Jdem. G.P. Putnam's Sons. New York.
33c1cERO, DE LEGmus, Book I. xviii. 35 1. Keyes Translation.
G.P. Putnam's Sons. New York .

,,
••

118 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 119

the influence of the natural law philos ophy. Cicero with a rotten house. On the other hand, if the owner
admitted, however, that he had to wrestle with the conceals the defective condition of his house and sells
concept of prudence,34 an unfashionable trait even it, then he would indeed be a prudent person for having
then, in relation to the precept of justice as a means of skillfully managed his interests but he would unques-
measuring the goodness or badness of an act. Cicero tionably be unjust and unfair. Philus countered that
observed that the ab ility to regulate and discipline prudence dictates that a person should first attend to
onself is almost always compromised by the use of his or her own needs and interests. This is compatible
prudence or skill and sagacity in the management of with human nature. But. for Cicero, this is still
one's affairs. It is for this reason that Cicero opposed unacceptable because the prudent person in this
prudence as a factor in determining the justice or situation remains a cheat, dishonest. unfair, and un-
injustice of an act or conduct. An act may be pruden t just for deliberately deceiving his or her buyer. One is
but the question remains: is it jus t and fair. drawn to the conclusion that an honest person might be
a fool but he remains a just person while a prudent
As usual with Cicero he himself advanced the person would both be wicked and unjust.
contrary arguments through Philus, the character Cicero
created to take care of the opposition. Philus contended There is a case that vividly illustrates the verity of
that prudence is as much a virtue as j ustice. Both Cicero's analysis of prudence in rela tlon to the virtue of
concepts depend a great deal on the circumstances of justice. In United States v. Holmes, 35 the accused was
time, place, usefulness. and even government. But a seaman on a sailing vessel which was shipwrecked off
Cicero pressed the point that if this is true. then. it the coast of Newfoundland after hitting an iceberg. Two
would indeed be tragic to see a just person die, which lifeboats were lowered. One, called the longboat. was
would be the height of folly, for.it is obvious that to be leaky. Nonetheless. into it jumped the first mate, eight
alive generally is preferable than not being alive. seamen, including the accused Holmes, and some
thirty passengers. The load was about twice as much
Cicero presented the case of the owner of a house as the longboat could hold. Just as the longboat was
which he knows to be infested with termites. The about to cast away, defendant Holmes jumped back to
owner. nonetheless. offers the house for sale because rescue at great risk to his own life a little girl who was
he needed the money badly. Will the owner. then. left behind by her mother in the confusion. Because of
inform his prospective buyer of the condition of his leaks and heavy rain, the longboat sank lower and lower
house? If the owner does that then he would undoubt- despite the frantic effort to bail the water. Since no one
edly be a j ust person but he would be a fool for he would volunteered to jump overboard to lighten the longboat.
have to either sell at a great loss or remain burdened the first mate ordered the crew to throw all male
passengers overboard. The crew. including Holmes.
followed the order only after it was sternly given the
34c1cERO, op . ctt.. Book I, vii, 321. Keyes Translation. G.P.
Putnam's Sons, New York.
3526 Fed. Cas. 300.
120 LEGAL P1 llLOSOPI IY TELEOLOGICAL PERSPECTIVE 121

second time. The crew spared a liltle boy but fourteen peace of mind and are thus free from fear and anxiety
male passengers were cast overboard. Two sisters of a or, should they die or lose their properties in the
male passenger voluntarily leaped to join their brother . process, still preserve the respect, gratitude and adml-
in death. The longboat stayed afloat and the following ·ration of the community.
day all the survivors were rescued. Later Holmes was
tried for manslaughter. Holmes was found guilty upon B. GAJUS

thejudge·s charge to the jury that except for those who In his Institutes. Gaius advanced the view that the
were indispensable to operate the longboat passengers rules established by the citizens to govern themselves
must be saved and if no crewman can possibly be fall under thejus civile. while the rules common to all
dispensed with then the passengers must cast lots to other persons based on the natural law are classified
determine who shall die. provided there was time to do under the jus naturale. For Gaius, those that are in
so. derogation of the precepts of the natural law are not
laws at all. If such laws exist it is due to the sanctions
Seaman Holmes' life no doubt was as valuable as attached to them. not because they are laws. They do
that of any of the passengers. But it seems that Holmes not contribute to the maintenance and preservation of
was called to disregard his own safety for he was bound lawness. On the contrary. they are conducive to
to protect the passengers in view of the fact that that lawlessness.
was precisely the burden of his job. Indeed. Holmes
himself demonstrated this obligation when he rescued In identifying this aberration in the· legal order,
the lltUe girl who was left behind by her mother in her Gaius advocated for a continuing process of removing
panic to get into the longboat. But following the such unnatural laws from the books. Putting the point
argument of Philus. Holmes would have been a fool had somewhat differently, laws must be reexamined by the
he not done what he was ordered to to do. But in so lawmaking body every once in a while. This process
doing he had become wicked for. in such a predicament. would. then. provide the means for legal cleansing
no one can save himself by killing another. whereby any abnormality or irregularity in the legal
order could be adjusted to comply with the end and
Cicero's approach lo the relationship of prudence purpose of the law.
lo justice appears lo be ambivalent. An act may be
against a legal rulebulilmayslill bejust. For example, 17. THE AQUINIAN CONCEPT
lo destroy another's properly is illegal but when il is
With the resurgence of Christianity during the
done during a raging fire to save a community. then it
twelfth and thirteenth centuries. scholastic thinkers
ts consideredjusl. On lhe other hand, prudence may
pursued a system of theology. church polity. and legal
really be foolhardy since il is quite possible that pru- philosophy upon which the Romish Church relies even
dent persons may leave themselves wide open lo charges lo this day.
of fraud and deceit. as in the illustration given by
Cicero. The truly just persons are those who keep their

1.
111

122 LEGAL PHILOSOPHY TELEOLOGICAL PERSPF.cTIVE 123


Thomas Aquinas (1224- 1274) based the claim of as Interpreted by the Church.36
the Romish church to absolute authority by advancing
the idea that some church doctrines are defensible by Thomas Aquinas learned from the Greek philoso-
formal reasoning while others which cannot stand the phers the importance of the precepts of the natural law
process of r eason m ust be accepted by the clergy and in the formulation of positive laws. Indeed, the primacy
the laity alike on faith alone. And, for Thomas Aquinas, ofa higher law over positive law is the mainspring of the
this meant the authority of the church in the papacy as Thomistic philosophy of law. Perhaps this is why
the final interpreter and arbiter. It is obvious how Joseph Glanvil (1636-1680) circulated the notion that
complete the establishment of church authority was Thomas Aquinas was but Aristotle sainted.
and is.
Thomas Aquinas expressed the view that a human
Thomas Aquinas pursued the same theological being has a rational soul and a will of his own. 37 This
path in the s earch for m etamaterial principles to in- is ordained by God for the universal good. 38 But a
fluence the ordering of human conduct and the ad- human being has also a nutritive soul. Borrowing from
ministration of the legal process. Under Thomas Socrates, Thomas Aquinas stated that the nutritive
Aquinas' great influence, the theological supplement to soul ls the seat of diseased or unhealthy physiological
the teleological concept of the nature of the law gained sensations that restrict or hinder the rational soul.
ascendancy. Thus, for Thomas Aquinas, without these baser physi-
ological urges human beings might be able to attain the
Thomas Aquinas thought of the law as an institu- universal good. But Thomas Aquinas did not lose hope
tion ordained by God. Here the Greco-Roman notion of because of the rational capacity of human beings. This
(impersonal) nature as the source of the law was insight is a departure from Augustine (354-430) who
substituted by the power of ·God who, expounded felt, borne ofhis own experience, that human beings are
Aquinas. is "the Legislator of the whole of justice and utterly corrupt. Augustine fell into a controversy with
Governor of all things." The people are then bound to Pelagius (348-433) who denied the doctrine of original
obey secular rules only to the extent that the precepts sin and the fall of humankind. Augustine felt that the
of the natural law are met. Thomas Aquinas stated that
"kings must be subject to priests, therefore. as soon as
36u ls, of course, another question. which need not be
a ruler falls under sentence of excommunication for considered here, but should be merely raised, as to whether this
apostasy from the faith his subjects are ipso facto view Is acceptable In a pluralistic society which does not fully accept
absolved from his rule and from the oath of fealty which the authority of the Church In matters of legal ordering, especially
bound them to him." Thus. the paga n - though not when such a society is under changing condition. Professor Morris
R Cohen, in his review of the symposium on FREEDOM: hs MEANING
irreligious - idea of law h eld by the Stoics became (Harcourt Brace and Co., New York) suggest the machineiy of the
christianized. The doctrines of right and justice ad- state as the answer.
vanced by Socrates , Pla to and Aristotle were blended 37SUMMA ThEoLOG1CA. Part I, Q9, Art. 6. Peels Edition. Random
with the b asic principles and tea chings of Christianity House. New York.
3Brdem.
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124 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 12 5

idea of Pelagius was dangerous because of its implica- something more than rea son was necessary for a proper
tion that God's grace was no longer necessary toward understanding of what is right and just. For this
salvation. 39 Augustine contended that the physiologi- Thomas Aquinas reached clear back to Aristotle. Thomas
cal urges of human beings have led to depravity so Aquinas reiterated the almost forgotten idea of sophia
much so that salvation can only be attained through the or "right reason" (a term which he used in his essays on
grace and illumination of God. 40 the general topic of society and political philosophy) to
bring human beings into harmonious relationship wHh
Thomas Aquinas, like Plato, believed in the ra- one another.
tional capacity of human beings. But Aquinas drew a
sharp restriction on what human re2son is capable of. By sophia Thomas Aquinas meant "the intuition to
For him, what is accessible to human reason is not do and promot'e' good and avoid evil. "42 And, for Thomas
divine law but only the precepts of the natural law. The Aquilla§, the precepts of the natural law are based on
jus divinwn is known only to God. This perception of right reason. Thus, human law has the nature of the
Dominican Thomas Aquinas incurred the intense dis- law when it partakes of right reason. 43 When human
sent of Franciscan John Duns Scotus who felt that the law deviates from right reason it is no lawatall.44 Henri
Dominican had placed unwarranted limits on the om- Louis Bergson (1859-1933) warned though that intui-
nipotence of God.41 tive perception or understanding should not be mis-
taken fqr mere conjecture or surmise for the latter
Thomas Aquinas held that human reason influ- results only in different and conflicting meanings. For
enced as. tt is by physiological sensations is not suffi- Bergson, sophial intuition means reflection cradled in
cient to bring human beings to a correct understanding wisdom.45
of what is iight and just. He held that this kind of
reason is relativistic and discursive, and, therefore, Thus, for Thomas Aquinas. right reason is the
quite often contradictory. Indeed, reasonable people governing rule of human conduct "for the common
have varied ideas as to what is right and just. Human good, which is preferable to one's proper good. because
beings have biases an d prejudices making it difficult to the common good ofthe whole is God Himself." Therefore,
agree with them even when they claim to be acting in a when Thomas Aquinas considered the law as the prod-
reasonable manner. Thus, for Thomas Aquinas, reason uct of right reason he was moving towards a very high
limited by sensations cannot discover the universal estimate of the law. On the basis of this evaluation ,
good and tends to separate positive law from the
precepts of the natural law. Thomas Aquinas felt that
42AgrnNAS, T ., SUMMA TI1EoLOG1CA, I, Q94, Art. 2. Pegts Edition,
Random House, New York.
39BAS1c W RITINGS OF AUGUSTINE, 644. Oates Edition. Henry Holt 43Aquinas, T .. The Essence of Law. In INTR0Ducr10N m T 110MAS
& Co., New York . Agu1NAS, 637. Pegls Edition , Random Hou se, New York.
40/bid.. 44Jbid., 6 15, 633,, 649.
41 Aquinian Scholasticism, ENCYC LOPEDIA OF RELIGION AND En-uc s, 45BERGSON, H., CREATIVE EvoL.UTION, 176. henry Holt & Co., New
xi, 239. York.
126 LEoAL PHILOSOPHY TELEOLOGICAL PERSPECTNE 127
Thomas Aquinas believed that laws or statutes must Thus, he defined ethical justice in the same tradition of
satisfy the precepts of the natural law.46 Therefore, a the Greco-Roman philosophers. But as a juristic norm,
rule or statute to be valued must be an ordinance of Thomas Aquinas considered justice as "the habit
right reason for the common good laid down by him who whereby man renders to each one his rights by a con-
has the care and welfare of the whole community and stant and perpetural will. "48 This is a refinement of
made public to those who are subject to it.47 The full Ulpian's view thatjustice is "the constant and perpetual
measure of Aquinas' concept of the law is best appreci- wish to give each man his due." Thomas Aquinas'
ated when compared to the Grecian concept. While concept of juristic or secular justice accentuates the
Greek philosophers conceived of the law as an imper- fundamental idea of consideration for the rights (ius) of
sonal idea, Thomas Aquinas viewed the law as an others for these are what are due them and the basic
expression of right reason which does not proceed from principle of equality of all persons in their relationship
mere rational impulse of just anybody in society but is with one another. On this, Thomas Aquinas may be
willed by the source in society as a whole which is said to be truly Aristotle's heir.
concerned with the common good.
Thus, Aquinas did not entirely separate secular
Thus. Thomas Aquinas distinguished the law Uus) justice from ethical justice. As stated above. the answer
from a law (lex). Aquinas explained that the latter "is to Ulpian's question of what is really one's due still
any rule or measure of action whereby one is induced depends on ethical justice. Differently stated, the
to act or restrained from acting." For Aquinas. should problem revolves on what the word "due" means. What
any rule or measure of action depart from the precepts is one entitled to that must be continuously protected
of the natural law. then it ls no longer valid but a and fulfilled? Must the legal order protect and fulfill at
perveralon of the law. all times all that a person living in a politically organized
society enjoys? Or should all the wants, claims and
A. JUSTICE demands of the individual members of society be recog-
nized without balancing them with other conflicting or
Being a theologian. Thomas Aquinas considered
overlapping interests? The answers to these questions
justice in two aspects: justice as an ethical virtue and
cannot obviously ignore ethical justice. Thus, the
justice as a juristic norm.
conception of juristic or secular justice could not be
As an ethical virtue. Aquinas. like Cicero before ,
weaned from its ethical dimension. This is well illus-
him, considered justice to be inherent in every person. trated in the application ofsecularjustice in the judicial
process. Aquinas held that the equable application of
secular justice in the judicial process is attained when
the judgment ofa court fulfills three conditions. namely.
46Aqulnas. T .• The Essence ofLaw. In lmRoouCTJoN ro TuoMAS
.Agu1NA.St 637. Pegis Edition, Random House. New York.
4 AgutNA.S, T .• SUMMA Tl tEOLOOICA, II. Q90. Arts. 1-4. 48 Constans et perpetua uoluntas tus suum cutqut trtbuere.
Aquinas, T.. op. cit., II. Q58, Art. 1. Emphasis supplied.
ii

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128 LEGAL P1-11LOSOPI IY
TELEOLOGICAL PERSPECTIVE 129
1t must come from one in and with authority, that is to and acts. And the law is the definition and limitation of
say the judge must have jurisdiction over the persons power."52
and subject-matter involved, it must come from._Qne
with a particular disposition or propensity for ethical C. IMMUTABILTIY OF LAW
justice as. for instance. resolving reasonable doubt in
favor of an accused person. and it must be pronounced The Greek and Roman philosophers believed that
according to law. 49 the law pervaded with justice and equity is immutable
and inflexible. But Thomas Aquinas approached this
B. LAW AND SovEREICN1Y matter with a little more caution. He advanced the idea
that changes do occur in the subsequent applications
It was Thomas Aquinas who first introduced cer- of the law and these changes may be by expansion or
tain qualifications to the Greco-Roman concepts oflaw contraction in accordance with the civilization of the
and state. In formulating his legal philosophy. Thomas time and place. 53
Aquinas advanced the proposition that "the public
welfare or the common happiness is the first concern of According .to Thomas Aquinas, the application of
the people since the direction of anything to this end is first principles cannot obviously be done in the same
the concern of those to whom the end or purpose way at all times or applied in the same way to all
belongs."50 For Aquinas. then. this task "belongs either situations because of ever varying human experiences.
to the whole people. or to someone who is the vicegerent Putting the point somewhat differently. the norms from
of the whole people. "5 1 Thus. the idea of self-determi- which the more specific rules are derived remain un-
nation. which Jeremy Bentham would later call "sover- changeable but specific legal rules are not. If an
eignty", is one of the gleaming facets of the Aquinian illustration is needed, it is supplied by the principle that
tradition. Following Thomas Aquinas. Justice Matthews every person must observe honesty. avoid harm or evil
of the Supreme Court of the United States posited the to others and give everyone his due. No reasonable
idea that "sovereignty itselfis. of course, not subject to
law. for it is the author and source of law. but in our
system while sovereign powers are delegated to the 52Yick Wo v. Hopkins. 118 U.S. 356. 6 S .Ct. 1064, 30 L.Ed.
agencies of government. sovereignty itself remains with 220.
the people by whom and for whom all government exists 53AgUINA.S, T.. SUMMA TuEoLOGtCA, II, 94, 5. Pegls Edition, 12th
Printing. Random House, New York. This Idea was applied ln
Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 and
reasserted in revitalized form In Adamson v. Califomta. 332 U.S. 46,
49Agu1NAS, T .. op. ctt., II, Q60, Art. 2. 67 S.Ct. 1672, 91 L.Ed. 1903. Justice Hugo Black emphasized that
50AgrnNl\S, T op. ctt.. 6. English Dominican Province the Adamson case reasserted the theory given in the Twining case
Translation. Burns. Oates & Washboume, London. that "this Court is endowed by the constitution with boundless
51AgUINAS. T.. op, cu .. 11. 90. 3. Pegls Edition. Random house, power under natural law periodically to expand and contract
'•
New York. constitutional standards to conform to the Court's conception of
what at a particular time constitutes civilized decency and funda-
mental liberty and justice."
II

130 LEGAL PHILOSOPHY TELEOLOGICAL PERSPF.CTIVE 131

person can deny this principle whether she or he is at For example, the original principle offreedom ofexpres-
the borders of theology, ethics, psychology, orjurispru- sion has been d1minished considerably. It has been
dence. Upon this principle is based the legal rule that subjected to and is still being 11mited by prohibitions of
no one can take another's life as a sanction unless abuses of expressions which the legal order may validly
done in self-defense. The reason why there are prohibit or restrain, e.g., blasphemy, obscene or inde-
changes in the subsequent applications of first prin- cent language, calumny, seditious utterances. No
ciples is that decisions vary in the choice of means to reasonable person would advocate freedom of expres-
realize the ends that are implicit in the first principles. sion under any circumstance. Certainly, there is no
freedom of harmful speech. Thus, for example, a
The change in the subsequent applications of first person can not simply insult, slander, or libel anyone
principles may be by way of extension or contraction. It or any group. Nor. as Justice Holmes strikingly puts it,
can also be done by the superimposition of something can "the most stringent protection of free speech pro-
different. In any of these cases, it is assumed that it is tect a man in falsely shouting 'fire' in a theater and
for the welfare of the community. Thus, there are causing a panic. "54 A person cannot also claim a license
matters in the legal ordering of the community which to speak by means of untruthful. injurious and hannful
extend the application of first principles for the benefit communication in its various forms.
of the people. The classic examples are to be found in
such changes or extensions in the concept ofownership The same principle of free expression has been
a·n d the concept of liberty. enlarged by the courts due to the circumstances of the
times to include peaceful picketing55 in connection with
The institutions of private property and slavery a given labor dispute on the theory that peaceful
were developed purportedly for. the good of social life.
And these institutions are not evidence that a community
or people is lacking in culture but, on the contrary. 54.schenck v. Untted States, 249 U.S. 47, 39 S.Ct. 247, 63
L.Ed. 470.
show the great advance in economic progress. And yet. 55Thomhlll v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.
precisely for the same purpose and reason, the institu- 1093 where the Supreme Court of the United States stated: Min the
tion of private property has continued to exist while the circumstances of our times the dissemination of Information con-
institution of slavery has been eradicated as a social cerning the facts of a labor dispute must be regarded as within that
evil. Another example is the original universal law to life area offree discussion that Is guaranteed by the Constitution.• Any
doubt that the Court had referred to peaceful picketing was dispelled
which has been enlarged inAmericanjurisprudence to In the case of Carlson v. Califomta, 310 U.S. 106, 60 S.Ct. 746, 84
include "liberty and the pursuit of happiness." The L.Ed. 1194. where the Supreme Court of the United States sald:"'The
same universal law to life has been enlarged further in canylng of signs and banners... ls a natural and appropriate means
a different way in Philippine legal theory to include of conveying information on matters of public concern... publicizing
the facts of a labor dispute in a peaceful way through appropriate
"liberty and property." means whether by pamphlet. by word of mouth or by banner, must
now be regarded as within the liberty of communication which ls
By the same token, first principles have been secured to every person....• The Thornhill doctrine received its
contracted for the melioration or betterment of society.
132 LEGAL PHIWSOPHY ThLEOWGICAL PERSPECTIVE 133

picketing is the workingman's means of communicat- test. and a noticeable tendency to recognize the assimi-
ing to the public the facts of a labor dispute. 56 This is lation of peaceful picketing into the principle of free
a complete departure from the concept that picketing. speech as a "dogmatic equation" although there is
even if peaceful, is not the kind of expression within the equally cogent authority to the contrary.59
principle of freedom of expression. 57 Whether or not the
addition of peaceful picketing within the operation of by saying that "a strike may be illegal because of Its purpose,
the principle of free speech is imprudent or inappropri- however orderly the manner in which It Is conducted" and con-
ate is another problem. However, at the present time, cluded that It did not "believe that free speech Is involved where
there is a heavy reliance upon the "lawfulness of labor objective Is illegal.· Peters v. Central Labor Council, 179 Ore.
purpose" test. 58 rather than the ..peaceful element" l, IO; 169 P.2d 870, 874, cltlng Dorchy v. Kansas, 272 U.S. 306,
311. 47 S.Ct. 86, 71 L.Ed. 248.
591n just a decade after the enlargement of the law of free
speech by the Inclusion of peaceful picketing In the ThombUl and
greatest development in Cafeteria Employees Union v. Angelos, 320 Carlson cases, the Supreme Court of the United States, In the trilogy
U.S. 293, 88 L.Ed. 58, 64 S.Ct. 126. This case Involved a New York case of Huges v. Superior Court ofCalifornia, 339 U.S. 460, 70 S.Ct.
injunction prohlbiti.ag peaceful picketing of a cafe In order to 718, 94 L.Ed. 985, IntemattonalBrotherhoodofTeamsters v. Hanke,
unionize It. The management claimed it had no employees because 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, and Building Service
all of the waiters were partners. Hence, there was no labor dispute. Employees International Union v. Gazzam. 339 U.S . 532, 70 S.Ct.
The Supreme Court of the United States unanimously held the 784, 94 L.Ed. 1045, retreated fromt he Thornhill front. In the
injunction to be improper. It must be stated, however, that In a long Hughes case. the Supreme Court found that there was no violation .
line of cases starting with Giboney v. Empire Storage and Ice Com- of freedom of speech when the purpose of the picketing was to
pany, 336 U.S. 490, 69 S.Ct. 684, down to International Brotherhood enforce a demand for the hiring of sales clerks on a racial basis In
ofTeamsters v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed. 2d proportion to the customers of the stores which Is In open opposition
1347, the U.S. Supreme Court has retreated from doctrine. to the public policy against racial discrimination. Speaking through
In the Philippine case of Mortera v. Court of Industrial Rela- Mr. Justice Frankfurter, the Court said that "the very purpose of the
tions, 79 Phil. 345, the Supreme ~urt stated: Jbe prohibition [In picket line Is to exert Influence and It produces consequences
the order of February 21. 1947 against picketing In any guise or different from other modes of communication ... • In the Hanks case,
form) should be understood to cover only illegal picketing, that is, the Supreme Court, speaking through Mr. Justice Frankfurter,
picketing thru the use of Illegal means.· To the same effect, De Leon affirmed the holding of the Supreme Court of Washington prohib-
v. National Labor Union. 100 Phil. 789. In Philippine Association of iting the peaceful picketing of business establishments having no
Free Labor Unions v. Clortbel. G.R No. L-25778, the Supreme Court employees which It felt was objectionable, saying that "[W)e must
of the Philippines held that even though picketing is peaceful It may start with the fact that while picketing has an Ingredient of
still be regulated if it is necessary to localize the sphere of com- communication it cannot dogmatically be equated with the consti-
munication to those Involved in the labor dispute. tutionally protected freedom ofspeech .... • In other words. "picketing
56Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. not being an equivalent of speech as a matter of fact. It Is not its
287, 61 S.Ct. 552, 85 L.Ed. 836. Carpenters and.Joiners Union v. Inevitable legal equivalent." (Hughes case, 339 U.S. 460). In the
Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143. Gazzamcase, the Supreme Court ordered the stoppage of a peaceful
57Senn v. TI.le Layers Protective Union. 301 U.S. 468, 57 S.Ct. picketing because It was found that the picketing was directed
857, 81 L.Ed. 1229. against a hotel having 15 employees who were not union members,
58u is significant that in one case It was noted that in the the purpose being to coerce the hotel management which was
several cases decided by the American courts identifying picketing against the public policy of the State of Washington. While these
with free speech no unlawful purpose of the picketing was Involved trilogy cases appear to be a retreat, still It can be said that the
Courrs present position seems to recognize that picketing is essen-
134 LEGAL PHILO~-OPHY TELEOLOGICAL PERSPECTIVE 135

The same principle of free expression has also been which he called "transcendental philosophy." By tran-
extended to cover publication and sale of books. news- scendental philosophy. Kant means learning or u n der-
papers and magazines,60 as well as production, distri- standing determined by the mind itself. It is pure
bution and exhibition ofmotion pictures61 on the ground knowledge for it is not gained by or through sense
that they are all significant forms of expression and experience. But while pure knowledge transcends
communication of ideas. The said principle has been sense experience Kant feels that it can still be applied
further broadened to mean the removal of unnecessary in a practical way in determining moral judgments.
limitations and the recognition of the benefits of media Kant developed his transcendental philosophy in three
in order to make such freedom possible. Thus, the great works. namely, Critical Analysis of Pure Reason,
doctrine that the subsequent application of first princi- Critical Analysis of Practical Reason, and Critical
ples may be periodically expanded or contracted in Analysis of Judgment.
accordance with the prevailing conceptions of the times
finds basis in the distinction drawn by Thomas Aquinas A. HUMAN CONSCIOUSNESS AND CONDUCT

as to the immutability of the law. In the preface to his Critical Analysis of Pure Rea-
son, Immanuel Kant confidently proclaimed that "in
18. THE KANTIAN CONCEPT this book I have chiefly aimed at completeness and I
venture to maintain that there ought not to be one ·
Immanuel Kant (1724-1804) is one of the foremost
metaphysical problem of which the key at least has not
figures in philosophy and jurisprudence.
been supplied."
To understand Kant's legal philosophy, there is In studying human consciousness and conduct,
need to appreciate his general philosophical thought Kant reached back to Plato's concept of reality yielding
only to human intelligence, which Plato called "Ideas."
tlally a form of economic coercion since "the loyalties and responses This concept of reality is quite apart from the conditions
evoked and exacted by picket lines are unlike those flowing from given or presented in human experience. Like Plato
appeals by printed words.· (Hughes Case, 339 U.S. 640 at 645). before him, Kant indicated that the nature of his
Subsequently, the Supreme Court of the United States dealt with
the "unlawful purpose" test in the case ofPlumbers Union V. Graham. philosophic thought also goes beyond the realm of
345 U.S. 192. which affirmed a Virginia Supreme Court decision sense experience. But Kant made it very clear that the
which issued an injunction against a peaceful picketing which human mind has the capacity to construct or harmo-
happened to viola te a right-to-work statute. All these Indicate the nize ideas and concepts even prior to experiencing them
death of the theory that peaceful picketing is a part of free speech. by the physical senses. Stated simply, ideas and
60 orossjean v. AmertcanPressCo., 97 U.S. 233. 56S.Ct. 444,
80 L.Ed. 660; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315. 89 concepts can be formed and organized in the human
L.Ed. 430. mind and intellect independently of feelings and incli-
61 unttedStales v. Paramount Pictures, 344 U.S. 131, 68 S.Ct. nations. Thus, Kant's intellectual constructs are true
915. 92 L.Ed. 1098; Bw-styn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. and certain regardless of subsequent experiences or
777, 96 L.Ed. 1098; Commercial Pictures v. Regents, 346 U.S. 587,
74 S.Ct. 286, 98 L.Ed. 329. consequences thereof. Kant was merely saying that if
136 LEGAL PHILOSOPHY
TELEOLOGICAL PERSPECTIVE 137
the truth and certainty of ideas and concepts depended preface to his CriticalAnalysis ofPure Reason. And tills
on subsequent experience or consequence. then they is the same key that Kant used in analyzing the problem
would be correct only a posteriori but not a priorL In of the nature of the law.
such a case. the truth and certainty of intellectual
constructs would be dependent entirely on human The inquiry oflmmanuel Kant into the problem of
feelings and inclinations. For this reason. such intel- the nature of the law involves two steps.
lectual constructs would not be transcendental. They
would not be able to go beyond or surpass the realm of (1) The Principle of Rightness
sense experience.
Like Thomas Aquinas before him. Immanuel Kant
Immanuel Kant's transcendental philosophy is an held that the precepts of the natural law are the telos
intense reaction to the theory 'of knowledge espoused that the legal order must strive to achieve or attain. On
by David Hume (1711-1776). For Hume. all know- the basts of this transcendental philosophy. Kant pos-
ledge is derived from observation, that is to say from ited the idea that the precepts of the natural law are true
sense experience.62 Immanuel Kant feels that David and certain independently of human feelings and incli-
Hume's idea is not pure knowledge but only experien- nations. Kant explains that the precepts of the natural
tial knowledge which varies from person to person, law are not prompfed by sense-experience but by
from time to time. and from place to place. It is for this ethical altitude to do what is right and avoid what is
embarassing situation that ideas and concepts based wrong with the application of the unique faculties of
on sense experience are not binding on all persons in all human consciousness, namely, thinking. volition and
places and at all times. For Immanuel Kant. this is not judgment. This unique capacity for moral choice sets
the kind of knowledge that he was after. In Kant's own human beings apart from other creatures. Kant called
words. "there is. therefore, a priori knowledge." this the principle of rightness.

Since the human mind is capable of forming and Immanuel Kant's Critical Analysis of Pure Reason
harmonizing ideas and concepts independently of ex- deals with the capacity for knowledge. corresponding to
perience or consequence. then they would be valid for the first faculty of human consciousness. This ineans
all rational individuals at all times in all places which that knowledge derived from mental apprehension or
would make th~m dependable guides to human actions cognition. not knowledge obtained through or upon
and conduct. 63 This is the key to the solution of any direct use of the physical sense.64 Kant's Critical
metaphysical problem which Kant referred to in the Analysis of Practical Reason deals with the capacity of
willing or determining something. corresponding to the
second faculty of human consciousness. This means
62HuME, 0 .. TREATIES ON HuMAN NA111HF;, 373. 402. Selby Biggs
attitude leading to action in accordance with reason.
Edition, Oxford University press. London.
63 KA.Yr, I., CRnlQUE Of PuRE R&'ISON, I. 10. Oxford Universltv
Press, London. ~ 64KANT, I. . op. cit., 34.
138 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 139

not on the basis of the physical sense.65 Kant's Critical In searching for the solution to this problem,
Analysis of Judgment deals with the capacity for dis- Immanuel Kant felt that it would be untenable to treat
cernment. corresponding to the third faculty of human the problem in terms of the empirical nature of sense-
consciousness. This means decisions in conformity experience. Otherwise. as stated earlier, the precepts
with right principles or ideals, not on the basis of the of the natural law would not be binding on all rational
physical sense. 66 persons at all times and in all places. It goes without
saying that sense-experience varies from person to
For Immanuel Kant, it would be unjustified if person. from time to time. and from place to place.
persons living in society could dissociate themselves Thus, Kant did not evaluate the problem with the "legal
from their capacities to think and to will with a feeling ought" because this standard is a matter of experiential
for the righteous in their relationships with other influence. He preferred the "ethical ought" for this
individuals. Stated differently. people living in associa- purpose because this standard involves moral motiva-
tion with others can exert their free will only if they are tion.
able to act in accordance with the principle of right-
ness. It is the righteous person, then, who can attain Immanuel Kant set his sights on a universal bind-
freedom from the arbitrary power of his or her physical ing rule for the validity of conduct and decisions. This
senses. The fundamental idea of human freedom was is what he wanted to ascertain so that together with the
never more emphatically stated. principle of rightness "the precepts of the natural law .
may be recognized."67 For Kant the universal binding
(2) The Categorical Imperative rule of conduct and decisions cannot be deduced from
the "legal ought." This is repeated for emphasis because
Thus. a person must dwell on the total dimensions Kant felt that this process would not be in accord with
of her or his consciousness. namely. thinking, volition, his transcendental philosophy. Simply stated, the
and judgment. and assume responsibility for injuries universal criterion Kant was trying to construct cannot
caused to other individuals. come from any system of legal rules. Obviously, this
would be inconsistent with the principle of rightness
The application of the principle of rightness deals since it is possible that an act may encroach upon the
with the problem of determining when conduct and free will and action of an individual in one place but not
decisions are or are not injurious to others. To put the in another place. Kant was minded that no matter how
matter in the form of a question, how may conduct and difficult the solution to the problem might be the
decisions be considered to be in accord with the prin- universal criterion to determine when conduct and
ciple of rightness with certainty? decisions are or are not injurious to others with cer-
tainty, or. what amounts to the same thing. when to
65KANT, I.. CHmgui.: m- Pl{ACTICAL REA.soN. 31. Ox.ford University recognize right from wrong or justice from injustice in
Press. London.
66KANr, I., CHn1Qu~: oFJu1x•M~:NT, 32 . Oxford University Press,
London. 67KANT, I., op. cit., 16. 34.
140 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 141

general, must also be an a priori criterion. This means a person in such a situation could get out of such a
that the universal criterion though not derived or predicament except by lying. And, following the lead of
proved empirically must nonetheless be related to Cicero, the second question is "consideration of pru-
human consciousness.68 In different words, the uni- dence aside, would such an act or a conduct be in
versal criterion of right conduct must not only be self- accordance with the principle of rightness?:"
evident but also reasonable. This is crucial because the
criterion is to be applied to rational human beings According to Immanuel Kant, the quickest way to
living in society. Here Kant was emphasizing the idea answer these two questions is to raise another relevant
that the "ethical ought" by itself has no meaning either question: "Would a person be content that the criterion
in the course of nature or in the realm of actual living of getting out of distress by false promises would hold
unless it is reasonable too. good as a universal principle of right conduct? It is at
once obvious "that no rational person would accept
Immanuel Kant realized also that the universal such a proposal because as a universal criterion it
criterion by which right from wrong or justice from would contradict itself." Kant did not say how, but the
injustice would be recognized must the absolute and contradiction is that if lying becomes the universal
obligatory. It can neither be hypothetical nor tentative. criterion, then it would destroy all dependence on
If the universal criterion is conditional or temporary. pledges and promises to give, to do or not to do
then, it would indeed be very difficult, if not impossible, something. Promises would then be worthless and
"to know before hand what the criterion would contain would not be believed anymore, anywhere. That would
until given the conditions," let alone comply with it. indeed be intolerable.
Clearly, a conditional or temporary criterion of conduct
would not command universal acceptance and respect. Immanuel Kant concluded that the univesal crite-
rion of right conduct has to be categorical. that is to say
Immanuel Kant analy-.led the seriousness of his one with its own unequivocal merit. valid and good in
search for the universal criterion of right conduct by itself. which all the people would know at once without
considering several issues.69 Among those he consid- reference to subsequent experiences or conditions.
ered is the conduct oflying. In this regard, Kant raised Kant also concluded that the universal criterion of right
two important questions. The first is "may a person conduct has to be imperative, that is to say compulsory
when in distress make a promise with the intention not and mandatory. Thus. Kant called his one and only
to keep it?" Put in a direct form, there is no other way universal criterion of right conduct the "categorical
imperative" and expressed it in this wise: All persons
68 J<Mrr, I., CRmQUE OF' PRACTICAL REAsoN. 31. Oxford University living in society must act in such a way that the maxim
Press, London. or cause of their conduct and decisions would become
69 The other Ulustratlve Issues Kant used In analy.llng the the maxim of a universal law. 70 And, according to Kant,
seriousness of his search for the universal criterion of rlgh t conduct
are found In his FOUNDATIONS OF' THE METAPHYSICS OF' MORALS. Paton
Translation. Hutchinson's University Library. London. 70KANr, I., CRmgm: OF PRAc ncAL REAsoN. 473.
142 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 143
this "binding rule of light conduct may be expressed by Vecchio allowed that Kant has corrected and clalified
analogy with the natural law as follows: Act as if the by a ligorous intellectual process the ancient teaching
prtnctple of your action were to become by your will a of the precepts of the natural law. 74
universal law of nature."71 With the prtnciple of light-
ness and the categorical imperative. Kant was confident In the thinking of Rudolf Stammler (1856- 1938). a
that the natural can be distinguished at once from the significant Neo-Kantian jurisprudent, the principle of
unnatural. It bears repeating for emphasis that a lightness and the categolical imperative emphasize the
person living in society must avoid conduct and deci- idea that no conduct or decision can be approved as
sions which if they become universal would render the light. just. fair. and equal, which if it became wide-
socio-legal order intolerable. spread, would be "destructive of the freewill of the other
members ofsociety and oflaw in general. "75 Interpreting
B. TuE SENSE OF STRMNG FOR RIGJ-ITNESS Immanuel Kant. Stammler stated that every conduct or
When Immanuel Kant propounded his plinciple of decision is natural by the prtnciple of lightness and the
lightness and categolical imperative, he accomplished categorical imperative. It is inconceivable that the
unnatural could prevail in the exercise of rights and in
two important points for teleological julisprudence.
the performance of obligations.
First, Kant. by a different route. reiterated Aristotle's
position that the philosophy of the natural law should
The possibilities for the application of the principle.
seek the level of humanity. Second. Kant reconciled the
of lightness and the categolical imperative in the socio-
seemingly inconsistent notions of human freedom and
legal order is supported by the objective conditions of
the demands of moral duty, thereby giving meaning to
life in society. This is evident to people not by theoli-
the collective interests of the people.
zing alone but by vivid reasoning that some things are
simply light and just while others are simply wrong and
What Immanuel Kant accomplished was not easy.
evil. Conduct and decisions which are in accordance
William Fliedman stated that what Kant did is some-
with the principle of rightness and the categolical
thing nearly incalculable which no subsequent phi-
imperative are truly natural.
losophy could ignore. whether in the moral order or in
the legal roder. 72 Giorgio del Vecchio and Hans Kelsen
The Kantian principles are echoes of the Golden
commended Kant's commitment to moral law and
Rule of Jesus Chrtst which says: "lberefore, all things
natural law. Kelsen stated that the plinciple of light-
whatsoever ye would that men should do to you, do ye
ness and the categorical imperative constitute the long
even to them for this is the law and the prophets."76
sought alembic of the precepts of the natural law. 73 Del
74CAIRNs, H. LEGAL PHILOSOPHY FROM Puro ro HEGEL, 462. The
71KMrr, I. , TuE Ptt1LOSOPHY OF LA.w, 34. John Hopkins Press, Baltimore.
75STAMMLER, R., ThEORY oF Jus11cE, 11. Husik Translation.
72FruEDMAN, W .. LEGAL TI-iEoRY, 69. Stevens & Sons, Ltd .•
London. Macmillan & Co.. New York.
73KELSEN, H .. G ENERAL THEORY oF LAw AND STATE, 445. 76Matthew, 7: 12 : Luke6:31.
144 LEGAL PHILOSOPHY
ThLF.,OLOGICAL PERSPECTIVE 145

Clarence Morris clarified the difference. Kant's princi- this way. human actions and activities can exist for the
ple of rightness and categorical imperative "demand common good.
cold consideration" while Christ's Golden Rule "advises
warm considerateness."77 19. THE UTILITY SUPPLEMENT
The doctrine of utilitarianism is traceable to
C. METALEGAL BASIS OF LAw Epicurus (342-270 B.C.). Since then teleologists with
Inunanuel Kant's theory of law is based on his the utilitarian complexion have considered happiness
transcendent.al philosophy. He emphasized the idea as the measure of the goodness or badness of acts and
that the nature oflaw cannot be·understood in terms of their consequences based on the hedonistic calculus.so
sense-experience. For Kant. law to be an effective
means of social control must be based on the a priori Epicurus maintained that in the formation of
precepts of the natural law. Unlike Kelsen who aimed values and judgments it is the intellectual and
at a theory of pure positive law, Immanuel Kant inc- aesthetic happiness or pleasures that are the highest
ludes in his concept of the nature of the law the a priori good. For Epicurus, this should be the basis of a
precepts of the natural law, so that he finally arrives at workable theory oflaw. In other words, the telos of the
the principle of rightness and the categorical imperative law are the pleasures that are conducive to repose of
both individual and societal needs. Repose of mind,
as the foundation of the law.78
explained Epicurus, is the situation or condition denot-
ing freedom from pain. He emphasized that "when we
The clearest implication of this concept of the
maintain that pleasure is the telos of the law, we do not
nature of the law is that an individual can act freely
mean the pleasures of the profligates and those that
when he or she strives for the ethical. For, as Immanuel
consist in sensuality. It is not continuous drinking and
Kant puts it, "if the intention is.not to teach virtue but
revelling, not satisfaction of lust, nor the enjoyment of
only to teach what is lawful, then, we need and ought
fish and other luxuries of the wealthy table which
not to adopt the law as a guide for our conduct. "79 It
produce a ~appy and pleasant life but sober reasoning.
follows that a person cannot be treated merely as a
searching lor the motives for all choices. and banishing
means to the telos of the law. Thus, Immanuel Kant
mere opinions to which are due the greatest distur-
conceived of the law in terms of his two principles. In bance of the spirit."81

77Morris. C., Law, Reason and Sociology, 107 Pennsylvania Plato also made an excursus on this expedient
Law Review, 147. theory of law. According to Plato, this theory of the
78Ebensteln, N., The Pure 1lleory of Law In HAu.. REAo1Ncs IN
JurusPRUDENCE. 159. The Bobbs'Merrill Company. Indianapolis.
791\ANT, I., PHILOSOPHYOFLAw.12. Hastie Translation. Macmillan 80Hedonlsm comes from the Greek hedone, which means
Company. New York. This principle has found expression in the pleasure.
prohibition of slavery and involuntary servitude. It is at th.e root of 81 The concept of Epicurus was so Impressive that people with
every woman and chlld labor statutes and other types of social this life style have to t.hls day been called "Epicureans. -
legislation.
146 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 147
nature of the law is based on two considerations, To achieve this end, modern utilitarians posit a
namely, what pleasures ought not to be sought, and combination of the theory of the good (happiness as the
what pains ought to be avoided in the legal ordering of highest good) and the theory ofvalue (the usefulness of
society.82 Artstippus (435-358B.C.) of Cyrene, who sat an act or conduct depends on its consequences). For
at the feet of Socrates and a contemporary of Plato, the modern utilitarians, the key to the happiness of the
disagreed and proposed the idea that happiness is not people is based on the beneficial consequences of their
necessarily anchored on the virtuous and that what is acts. Thus, in this context, utilitarian ethics is the
good is the immediate physical pleasures. Cicero (106- doctrine that what is useful is good and that the
43 B.C.) denied this coarse type of hedonism and ad- determining consideration of right conduct is the at-
vocated for a return to the Epicurean form of hedo- tainment of the greatest happiness of the greatest
nism. Cicero held that "pleasure which is not an number in the community. To the modern utilitarians,
enticement to vice is the highest good and that pain is this is the concrete telos of the law. In the sense that the
evil leading to the destruction of human nature and utilitarian ethics eliminates selfishness or self-
reason. 83 centeredness. the utilitarians may be said to have
succeeded in giving some practical value to teleological
Modern utilitarians criticize the transcendental jurisprudence.
philosophy of Immanuel Kant. For the modern utili-
tarians, the rightness ofan act or conduct is inseparable A. STAGES OF MODERN UTILITARIAN Ennes
from its consequences. Thus, they place a good deal of There are two distinct stages in the development of
emphasis on the tendency of an act or conduct to add the modern utilitarian supplement to the teleological
to or lessen the happiness of the people. But even as perspective of the nature of the law.
this is the emphasis of modern utilitarians the thrust
of their t."iinking remains a principle of ethics. For ( 1) The Benthamite Concept
them, the legal ordering of society must always be
directed to the overcoming of pain. This is based on the Jeremy Bentham's (1748-1832) advocacy of the
fact that pain appears to be the major part of human utilitarian ethics was prompted by two important fac-
existence and pleasure a temporary or transitory tors.
release from pain. Schopenhauer ( 1788-1860)
proposed to meet this utilitarean problem by the The first was his disagreement with William
principle of the will to live and desire to overcome Blackstone's idea of the natural law theory that had
pain. dominated English jurisprudence at that time.
Bentham's target of his critique was Section 1 of Book
I of Blackstone's Commentaries of the Laws of
82Pl.Aro, TuE LAw. iv, 638. Jowett Translation, Wiley Book
Engl.and.. dealing with the nature of the law. Blackstone
Com~ny. New York. insisted on the supremacy of the natural law over
83DE LEmeus, XI. Keyes Translation, G.P. Putnam & Sons, positive law and the utter dependence of the latter on
New York.
148 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 149

the former for its validity. Jeremy Bentham's c;omments (a) N ature Basis
on the Commentaries criticized the vagueness of the
In advancing his formula to determine whether an
teleological concept of the nature of the law as the
act or conduct is good or bad. Jeremy Bentham did not
product of right reason in relation to the precepts of the
entirely break way from the ancient starting point of
natural law. Instead. Bentham advocated a formula
teleological j urisprudence. Bentham utilized the same
based on calculations of the social utility of an act or
considerations that Epicurus and Plato mentioned to
conduct in the determination of the validity of positive be the foundation of an expedient theory of the nature
law. of the law, namely. what pleasures ought not to be
s ought and what pains ought to be avoided. 85
The second was the wretched conditions of life in
England at that time due to the rapid changes spawned In enlarging Pia to's idea, Jeremy Bentham empha-
by the Industrial Revolution and the sorry state of sized two ideas of his own. First. that nature has placed
English laws and institutions which contributed a great human beings under a regime of pleasures and pains.
deal to the misery of the people. Jeremy Bentham These are the sensations that are quite natural to
placed the emphasis of his law reform movement on the hu man beings because they feel them the most. Their
greatest happiness ofthe greatest number ofindividuals sensations are either pleasurable or painful. Second,
in the community. 84 As William Friedman puts it, that every act or conduct is done to procure the hap-
Bentham's utilitarian individualism was "directed to- pening of some good (pleasure) or to prevent the oc-
wards the ema ncipation of the individual from restric- currence of some evil (pain). According to Bentham,
tions and inequalities which impeded the free play of experience shows that these are the forces that are
forces that were to give full scope to individual develop- constantly at work in the ordering of human society.86
ment." A person instinctively seeks and enjoys pleasure or
happiness and shuns and loathes pain or misery.
Jeremy Bentham felt that while an individual is a
part of a politically organized society, nevertheless, (b} Measure of Utility
there remains an element of his individuality that is
not merged into society of which he is a constituent To facilitate the application of his criterion of
part. It was Bentham's enduring contribution to juris- goodn ess. Jeremy Bentham provided a measure of
prudence to have insisted with a reformer's zeal that utility in terms of pleasures and pains to evaluate the
the true worth of an act or conduct depends on its effects of acts and conduct on the greatest happiness of
consequence to the individual interest. This is ·t he the greatest number of individuals in the community.
stage that s tarted individualist u tilitarianism.
85BENTllAM, J ., l..Aws, Book IV, 638. Jowett Edi tion, Wiley Book
Company, New York.
84BEN11il\M, J .. PruNc 1PLESOF MoRALS AND LE01s1.ATION. 185. Harison 868ENTJ IAM, J., AN INTRODUCTION TO TIIE PruNCIPl.$S OF MORALS AND
Edition, The M a cmllla n Company . N ew York. LEGISLATION, 3. Oxford University Press, London .
150 LEcAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 151

Among the pleasures of which human beings are failure to possess any of the several kinds of pleasures
susceptible lo. Bentham enumerated those of the and include pains of unsatisfied desire and pains of
pleasures of the physical senses; the pleasures of regret: the pains of senses, which are related to disa-
wealth, which are either of acquisitions or of posses- greeable sensations; the pains of awkwardness. which
sions; the pleasures of amity or self-recommendation refer to the consciousness of lack or want of skill or
which refer to the possession of the good will of a finesse; the pains of enmity, which refer to the pains
particular person or persons: the pleasures of a good which sometimes results from the non-possession of
name or repu ta Uon. which refer to the possession of the the goodwill or the possession of the ill-will of a particu-
goodwill of the society about him: the pleasures of lar person or persons: the pains of bad reputation,
power. which refer to the possession of the ability and which refer to the non-possession of the goodwill or the
capacity to order or direct people by means of their possession of the ill-will of society; the pains of impiety
hopes and fears; the pleasures of piety. which refer to which refer to the non-possession of the goodwill or
the possession of the good will or favor of God either in favor of God; the pains of benevolence, resulting from
this life or in the hereafter; the pleasures of benevolence, the thought that someone who happens to be the object
which refer to the possession of charity or human of one's sympathy is enduring pain; the pains of ma-
sympathy. good nature. tolerance, consideration. or levolence resulting from the thought that someone who
mercy; the pleasures of malevolence, which refer lo the happens to be the object of one's antipathy is enjoying
possession of ill-will. malice. or antipathy on those who pleasure: the pains of memory. which refer to those
may become the objects o{ malevolence; the pleasures which one may experience at recollecting some prior
of memory, which refer to those which one may expe- painful experience; the pains of imagination. which
rience at recollecting some prior pleasurable experiences: may be derived from the contemplation or considera-
the pleasures of imagination, which refer to the con- tion of any such pains which may be. in point of time,
templation or consideration of any pleasure which may present. past or future; the pains of expectation, which
be, in point of time, present. past or future; the pleasures refer to the contemplation or consideration of some
of expectation, which refer to the contemplation or future kind of pain accompanied by the sentiment of
consideration of some future kind of pleasure accom- belief: the pains dependent on association resulting
panied by the sentiment of belief: the pleasures de- from or growing out of some association or connection
pendent on association resulting from or growing out of with certain objects or incidents which are in themselves
some association or connection with certain objects or painful.
incidents which are in themselves pleasurable; the
pleasures of relief. which refer to experiences which There are two ways of measuring the utility of an
have to do with cessation of pain. act and its consequences.

Among the several pains of which human beings The first is composed of several circumstances or
are susceptible to. Jeremy Bentham listed those of the factors. viz.: extensily. which refers to the number of
pains of privation, which refer to pains resulting from person affected; intensity, which refers to the degree of
152 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTNE 153

the pleasantness or painfulness at a given time or over cumstances in criminal law, 87 and in the legal rules
a given period of time: duration, which refers to the concerning acts which produce the grounds for dam-
period of time the pleasure or pain lasts: propinquity, ages. prevention and other reliefs in civil law, though
which refers to the influence of the more immediate such acts may not constitute criminal offenses in
rather than tbe remote pleasures or pains: fecundity, themselves. as
which refers to the tendency to produce or lead to either
pleasures or pains; purity, which refers to the tendency (c) Application in the Legal Order
not to produce either pleasures or pains. While it is possible that an individual may not show
the sensibility normal to the class to which she or he
With particular regard to the factor of extensity, belongs, Jeremy Bentham believed that this is rather
there are three grades: 1) endemic, which falls on unusual and should be treated as an exception. This
certain individuals; it is called primitive ifit is confined means that the calculus of pleasure Oustice) and pain
to one individual. but it is called derivative if it falls on (injustice) should be applied for the accumulation of
certain individuals because of their relations with, or
their interests in, the first enjoyer or sufferer. 2) epi-
demic. which affects a larger number of individuals in 87 Articles ll. 12, 13and14, respectively, of the Revised Penal
a community due to their awareness or consciousness Code of the Philippines. Concerning justifying circumstances,
Article 11, for instance, provides that anyone who acts in defense of
of the existence of the pleasure or pain; with regard to his person or rights does not incur any criminal liability, provided
. pain, it may either be alarming or dangerous depending the following circumstances concur: 1) unlawful aggression, 2)
on the factors characterizing it, and 3) pandemic, which reasonable necessity of the means employed to prevent or repel it,
falls on or spreads out to the entire community. and 3) lack of sufficient provocation on the part of the person
defending himself. Concerning exempting circumstances, Article
12. for instance, provides that a person under nine years of age or
The second way of measuring the utility of an act a person who acts under compulsion of an irresistible force ls
or conduct is also composed of several factors which exempt from crlminal liability. Concerning mttlgattng circum-
have a great deal to do with personal or individual stances, Article 13, for instance, provides that it ls a mtttgatlng
differences as to sensibility to pleasures or pains. These circumstance when one has acted upon an impulse so powerful as
naturally to have produced passion or obfuscation. Another
factors are temperament, health, strength. physical instance ls when the offender ls deaf and dumb, blind or otherwise
defect. relationship, education. physical condition, sufferlng from some physical defect which thus restricts his means
mental condition. sex, age. rank, occupation, trade, of action or communication with his fellow beings. Concerning
profession, religion. honor. sympathies. antipathies, aggravating circumstances, Article 14. for instance, considers as
ethnic group. and inclination. These factors are quite aggravating the offense when advantage ls taken by the offender of
his public posltlon or when the offense ls committed with insult or
real due to the phenomenon that the same causes of in disregard of the respect due the offended party or on account of
pleasures or pains in a person may not create the same his rank. age. or sex, or that tt be committed In the dwelling of the
pleasures or pains in other individuals. These factors offended party, If the latter has not given provocation.
are also very significant in the legal rules concerning 88 Article 26 of the Civil Code of the Philippines provides ln
this respect. the following: Every person shall respect the dignity,
justifying. exempting. mitigating, and aggravating cir- personality. privacy and peace of mind of his neighbors and other
154 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 155

surplus pleasure or justice over pain or injustice. That their tendency to promote happiness and avoid pain.
which tends. then. to the greatest happiness of the To this end, Bentham specified the ends of the law,
greatest number of individuals in the community has namely. "to provide substance, to produce abundance.
the quality of the good. The good refers to that which to encourage equality, and to maintain peace and
causes happiness. not necessarily the happiness itself, security."91 And. according to Bentham, this can be
while the bad refers to that which causes misery, not accomplished by direct pursuit of pleasure and avoid-
necessarily the misery itself. 89 Hence, acts. whether ance of pain.
public or private, and their consequences. are to be
measured by the calculus of pleasures and pains. The To realize this, Jeremy Bentham proposed a proc-
proper goal, then, of all governmental actions is the ess whereby misery or injustice can be diminished and.
maximization of justice. whenever possible, happiness or justice increased. The
first is not difficult to achieve since an individual is
The preference is quite predispositional for only usually more sensitive to injustice than to justice.
those which are conformable to the welfare of the Thus. for example, there is agreement that it is unjust
individuals are those which tend to augment or add to to convict an innocent person. But if so condemned the
the sum of their happiness. Thus. for Jeremy Bentham, question of what a just redress for the wrong done is a
the ultimate test of the goodness or badness of an act hazy thing. What then is to be done? This suggests the
or conduct is the quantum of justice (pleasure) or principle that there should be no deliberate injustice.·
·injustice (pain) that it yields. For another example. while the state cannot give a
substantial amount of money to each and every indi-
With this Jeremy Bentham sought to test all legis- vidual the state can condone unpaid truces. penalties. or
lation and all acts by their bearing on individual human interests to contribute to their happiness.
happiness or misery. Bentham concluded that the law
is a system of social control directing and governing (2) The Jherlnian Concept
persons to the maximum of happiness and to the The second aspect of utilitarianism was advanced
minimum of misery. 90 Thus. rules should be judged by by Rudolf von Jhering (1818-1892).

persons. The following and similar acts, though they may not Jhering did not agree with Jeremy Bentham's
constitute a crimmal offense. shall produce a cause of action for emphasis on the primacy ofindividual interests. Jhering
damages, prevention, and other relief: (I) Prying into the privacy of stated that "the law should address the realization of
another's residence; (2) Meddling with or disturbing the private life the partnership of the individual and society."92 In
or family relation of another; (3) Intriguing to cause another to be
alienated from his friends; (4) Vexing or humiliating another on
account of his religious beliefs, lowly station in life, place of birth. 91BENnlAM, J., 1J.1E T!-tEOHY OF LE0 1sLA110N, 96. Ogden Edition.
physical handicap, or other personal condition. Oxford University Press. London.
89BEl'flliAM, J ., PruNc1PLE OF MoRAtS AND LE01su110N. 126. Harrison
92JHERING, R.. LAw AS A MEANS TO AN END, 397. Macmillan and
Edition, Macmillan & Company, New York. Company, New York.
90Ibid.. 151. 162.
156 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 157

another way of putting it, "there should be a concur- In the preface to his book, Jhering stated that
rence of selfish individual interests with the general "purpose" is the prime mover of the law.95 This is a
purposes of society. "93 While individual persons have departure from the idea of Benedict de Spinoza (1632-
their own interests to consider they cannot ignore the 1677) regarding the role of outside stimuli in the
interests ofsociety of which they are parts. As anciently determination of the human will. According to Spinoza,
pointed out by Aristotle, persons are social animals "the human will is determined in willing this or that by
moving and having their beings in society. a cause."00 Rudolfvon Jhering stated that there is no
place for physical determinism in the sphere of human
When the interests of society are met. then, the conduct. For Jhering. the principle of cause and effect
welfare of society is served and. consequently, the is exclusive or peculiar to the physical world. All
welfare of the individual members of society are met physical determinations are described in the tradi-
too. Even the measures which appear to constrict the tional formula that a given cause produces a definite
interests of the individual members of society are effect or that a given effect was preceded by a specific
done not only for their own welfare but also for the cause. Thus. in the physical world there must first be
welfare of society. Social legislation fixing maximum a cause to have an etrect. A piece of stone. for instance.
hours of work or controlling women and child labor falls to the ground because of the pull of gravity.
illustrates very well the partnership or concurrence of
ineividual and societal interests. The emphasis, there- Thus, Rudolf von Jhering posited the idea that
fore. is placed by the social utilitarians on the general while the physical world is governed by a "because of'
interests. all things being considered in their societal the world of human conduct is determined not by a
context. rather than upon individual interests. An act cause but "for a." 97 Simply stated, choices and
or conduct is good when it takes into consideration the decisions are made for a purpose. Human actions are
interest of society and tends to augment the happiness thus end-directed. 98 A debtor. for example. resolves to
of the entire society. Thus. the Jherinians are social pay his creditor for the purpose of liquidating his
utilitarians. 94 account.

(a) Law of Purpose Rudolf von Jhering called this the "principle of
RudolfvonJhering's social utilitarianism is based purpose." ForJhering, it is the principle of purpose that
on two principles. operates in the legal ordering of society. The exercise of

93BER01...z1-1E1MER, J .. THE WoRw's LEGAL P1-111...0soP1-11~::s. 339. Bos- 95JHERING. R., LAw 11S A M1>ANs To AN ENo. liv. Mac millan &
ton Book Company, Boston. Company. New York.
94PoUND, R., III JuR1SPRUDENCE, 130. West Publishing Com- 96SPINOZA. B .. Ennes, 2. 48. H a fner PubltcaUons, New York.
pany. St. Paul, Minn. 9?J11r.H1NG. R.. LAw A.."'> A M1·:ANs ro AN END, 462. Macmillan &
Company. New York.
98 rdem.
158 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 159

the human will does not just happen without some it may be pleasurable to him or her. Thus, the indi-
purpose behind it. Jhering was, however, careful to vidual members of society can proceed to gratify or
point out that its external fulfillment does come under fulfill their interests only as far as the interests of
the physical law of causality. 99 society are not adversely affected thereby.

The simplest argument in favor of Jhering's prin- (b} Social Mechanics


ciple of purpose is that if the exercise of the human will To realize the partnership or concurrence of indi-
is determined by some external cause. then there is no vidual and social purposes, the collective society (as
more reason to hold a person accountable and respon- Jhering calls it) or the politically organized society (as
sible for what he or she does or does not do. Put Pound puts it) applies its influence on the people by
differently, a wrongdoer could very well plead the means of egoistic and altruistic levers. Jhering calls
"because of' in order to relieve himself or herself of this social mechanics. 100
responsibility for his or her conduct. This would place
the legal ordering of society in an intolerable situation The first method of ensuring the purposes of
productive of pain or injustice. For Jhering. the legal society is by egoistic levers. This type of levers refers to
concept of "proximate cause" should be revisited in incentives addressed to the region of self-interest.
light of the principle of purpose. Differently stated, there are acts determined by egoistic
or selfish purposes. There are two kinds of egoistic
The second principle upon which RudolfvonJhering levers, namely, the non-coercive and the coercive.
built his social utilitarianism is the teleological idea Under the egoistic non-coercive lever are the fact or
that nature has endowed human beings with an interest event of reward and the fact or event of association.
in pleasures and an inclination to shun pain. · Jeremy Under the lever of reward are expectations of honor,
Bentham also used this idea in developing his concept respect. or income. Under the lever of association are
of individual utilitarianism. But while Bentham stated expectations of acceptance by individuals or society.
that an act or conduct is subject to pleasures and pain, This, then provides a powerful incentive to the individuals
Jhering insisted that individual interests can best be in the community to pursue interests where others can
realized in concurrence with the collective purposes. In share or participate in. The conspicuous examples of
other words. the selfish tendency of furthering indivi- this are fraternal associations. In Jhering's view, the
dual interests does not necessarily work for the good of lever of association, whether in simple clubs or in
the greatest number of persons in the community. complex institutions, like the church, is a singular but
Take, for instance. the criminal. This kind of a person indispensable means for the fulfillment of both social
is impelled only by his or her own selfish interests the and individual purposes. 101
results of which are painful to the community though

lOOop. cit., 73.


lOlsroNE, J .. THE PRoVJNCE AND FUNcrroN oF LAw. 305. Sec. 5,
99JllERJNG, R., op. cit., 7 . Associated General Publications, Ltd., Sydney.
160 LF.oAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 161

Under the egoistic coercive lever are the mechani- In contrast. then. to individual utilitarianism, the
cal and psychological means. In the mechanical lever answer to the problem of the nature of the law for social
of coercion, society itself acts in order to master, utilitarianism is to be found in the principle of purpose.
subdue, or break an individual's purpose. Thus, for that is to say the law is shaped by purposes of society
example, the state may send a person to prison in order and that its thrust is the maximization of its inter-
to prevent him from further realizing his criminal ests. w3
fecundity. In the psychological lever of coercion, pres-
sure ls exerted by society, just as in the first case. but B. VALUE OF THE UTILITY S UPPLEMENT
the mastering or breaking of the individual will or The utilitarian supplement to the teleological
purpose is done by the subject or person concerned. To perspective of the nature of the law is not confined
pursue the example given above, a person subdues his to mere abstract suppositions. The principles of utili-
of her own criminal tendency when he or she sees that tarian ethics are applicable to and of good use in legal
those who violate the laws of society are punished for theory. especially the development and thrust of the
their wrongdoings. law. Its application is very real in the science and art
of legislation. The science of legislation is the knowl-
The second method of furthering the purposes of edge of the good for the community. The art oflegisla-
society is by altruistic levers. These type of levers are Uon is finding ways and means to realize or accomplish
directed to the benevolent or generous interests of the that good. This means, in effect, that both individual
members of society. There are two kinds of altruistic interests and collective purposes should become the
levers, namely. the feeling of duty and the feeling of end or object of the science and art of legislation.
goodwill. In the feeling of duty. there are certain
responsibilities and tasks enjoined on the individual At the present time. as it has been in the past, the
members of society so that the conditions of social living principle of utilitarianism has been employed with
can be realized or accomplished. In the lever of feeling fruitful application in the field of human rights. w 4 The
of goodwill. the purposes of society are served by the
love of family and the love of country. Thus, solidarity
103 111ere is at present a new approach to the s tudy of the
and patriotism are outward forms of the altruistic lever nature of the law In terms of maximization of social wealth. This Is
of feeling of goodwill. For Jhering. then, an act or known as the Law and Economics Movement. It Is based on the
conduct is gooct when the organized purposes ofsociety principle of economic efficiency, that Is to say maximization of social
are realized and achieved. w2 wealth as the goal of securing the conditions of a happy social life.
The basic pa pers are found in UtilUarianism. Economics and Legal
Theory by Richard A. Posner, 8 Journal of Legal Studies, 103; Is
WeaUh a Value? by Ronald Dworkin. 9 Journal of Legal Studies,
l02JtiERINO, R.. LAw AS/\ MEANs ro AN END, 380. 391. Macmillan 191; Wealth Maximization as a Nonnative Principle byJ ohn Kronman,
& Company. New York. Jherlng also stated that there Is another 9 Journal of Legal Studies, 227; and The Value of Wealth: A Reply
cond!Uon of securing social life. He called this the purely extra- to Dworkin and Kronman by Richard A. Prosner. 9 Journal of Legal
legal motions of nature, e.g .• the life-sustaining conditions of cli- S tudies. 243.
mate and natural resources. 104sentham's PRINCIPLES Of' MORALS ANO LEGISLATION was the
162 LEGAL Pt-11LOSOPHY 'fl.::LEOLOGICAL PERSPECTIVE 163

conclusion made by Jeremy Bentham that equality is opposing views or ideas are resolved by what Hegel
one of the main aspects of law did so much in reviving called theprincipleofidentity, thatis tosayidentification
the importance not only of the right to life. personality of the intelligible and the real.
and dignity but also the collective purpose in the
conservation of human resources. Jhering's social Georg Frederich Hegel's principle of identity states
utilitarianism, on the other hand, sought a balance that "all that is rational is real and what is real is
between individual interests and the purposes ofsociety. rational." By this Hegel means that nothing is real or
which Roscoe Pound later developed into a theory of actual unless it is intelligible or rational as well. Thus,
social engineering of the conflicting or overlapping anything which is intelligible is actual and anything
interests. RudolfvonJhering's classification ofpurposes that is actual is intelligible. The principle of identity
into individual. political and social was also Pound's seeks the reconciliation of opposite views or ideas.
basis for his theory of social interests in which he When opposites. e.g., individualism and collectivism.
identified and labeled the generic interests of society. 105 are reconciled by means of the principle of identity, the
resulting synthesis becomes the identification or recon-
20. THE HEGELIAN CONCEPT ciliation of the opposing views or ideas into a concrete
concept. Every concept. then, is based on or is related
Georg Frederich Hegel (1770-1831) took a some- to some previous concept. As mentioned above, this
what different direction in the study of the problem of evolutionary process from concept to concept is ac-
the nature of law. 106 Hegel stated his basic premise complished by reconciling the thesis and its antithesis
that "the law is the product of an evolutionary process." resulting in the synthesis which then becomes the new
But unlike Savigny's concept of the volksgeist as the concept.
basis of the evolutionary process of the law. Hegel's
evolutive process appears in a dialectic pattern. This Hegel held that all concepts are actualized by this
pattern is a design in which one element, called thesis, dialectic movement. that is to say a concept (thesis) may
is followed by an opposite aspect, called antithesis, and evoke an opposite idea (antithesis) and out of their
the struggle between them is either wholly or partially reconciliation or identification emerges a new concept
settled or reconciled by the synthesis of the contending (synthesis). The synthesis becomes the prevailing idea
views. Putting the point somewhat difTerently. the or view of the times until an opposite antithesis
appears and reconciliation or identification of the
vanguard In the reform movement In English legal history especially competing ideas or views is again necessary.
In the field of penal law.
105p0 und R.. A Theory of Social Interests, 15 Papers and For an application of Hegel's dialectic idealism is
Proceedings of the American Sociological Society, 16-45. This
paper was revised in A Survey of Social Interests, 57 Harvard Law the current struggle between the concept of individual-
Review 1-39. See Pound's acknowledgment of Jhering's influence ism and its opposite idea of collectivism. Individualism
on him at page 1. emphasizes the claim and expectation of individuals
1O&Tuis study ts contained in the third portion of his famous against governmental interferences. In brief, the thesis
work THE PH1LOSOPHY oF M1No. Translation by W. Wallace.
1•

164 LWAI. PHILOSOPHY TELEOLOGICAL PERSPECTIVE 165

ls that with the exception of maintaining order and and human rights. Thus, it is in the state that the
enforcing contractual obligations, the economic system individual achieves his or her civil personality.109
functions best without governmental intervention or
interposition. The antithesis is collectivism. In brief. Georg Frederich Hegel was by no means placing
this opposite idea emphasizes that economic ascend- the state above the individual. Neither was Hegel
ancy is possible through the control of political power. advocating for a totalitarian state, as the neo-Hegelians
In this economic system. production and distribution of thought he did. Hegel's preference for the national
goods as well as extension of credit facilities are best conviction as the seedbed of the law has led the Neo-
handled by labor unions or associations of workers. Hegelians to suppose that Hegel was espousing a theory
The thrust is to have an equitable sharing in the of law where the state is absolute with complete as-
surplus value or profit of a business opera Uon and cendancy over the individual. Thus, the Neo-Hegelians
prevent capitalists from retaining all of it after payment skillfully used Hegel's concept as the basis of their
of subsistence wages to the workers who had helped theory of law-power in the hands of the party-state,
create the surplus or profit of production in the first where there is no separation of the powers of govern-
place. ment.

On the basis of his dialectic idealism. Hegel felt that This distorted interpretation of Hegel's philosophy
the concept of the volksgeist (folkspiril) awakens the oflaw and state made a very strong appeal to socialists,
opposite idea of the volksgedanken (folkmind). With the likeKarlMarxandNicolaiLenin. Marxsawimmediately
identification or reconciliation of these ideas. Hegel the thesis and antithesis in contemporary society. that
reached the synthesis of volksglauben (national con- is to say bourgeois and proletariat. Marx used Hegel's
viction). Thus. for Hegel. the law is the product of the dialectic idealism and came up with his (Marx) own
national conviction. philosophy of dialectic materialism, that is to say the
withering away of the bourgeois social and legal
21. THE NEO-HEGELIAN CONCEPT orders and the emergence of the dictatorship of the
proletariat.
In Hegel's philosophy. it is in the state that the life
of the people. as a collective whole. unfolds itself. w 7 This view of the nature of the law is nowhere
This is based on his dialectic idealism that the state is reflected in bolder relief than in Hitler's liquidation of
the synthesis of the opposite ideas of the family and the those whom he considered his enemies and. hence.
civil society. It is in the stale where the individual enemies of the German Reich. Their extermination was
achieves the desirable conditions of social life. 108 This taken by Hitler to be wan act of self-defense of the slate
means that the state assumes or undertakes the (for] in that hour I was responsible for the fate of the
responsibility of protecting both national sovereignty German nation. and, thereby. the Supreme Law Lord of

107HE:GEL. G.F.. PHILOSOPMY OF R1GMT. 156. 109HEGEL. G.F.. op. cit.. 155.
I 08AVENERI. S .• HEGEL"S THEORY OF THE MODERN STATE, l 00, 200.
166 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 167
the German people." 110 Bul bearing on lhe lolal col- was used by lhe German Neo-Hegelians. namely. Binder.
lapse of the rule of law under the Nazi regime is the Larenz and Smend, to cultivate lo lhe fullest lhe na-
resolution of the German Reichstag, dated April 26, tional conviction of lhe superiority of lhe Aryan (Ger-
1942. which reads in part: man) race and the unqualified abandonment of lhe
individual to the German Reich. HiUer and his Nazis.
There can be no doubt lhat the Fuhrer of course, also turned to Nietzche's superman complex
must. during lhe present lime of war in which to support lheir policy of world conquest. The Italian
lhe German nation is engaged in a fight for life Neo-Hegelians, among them Gioberti and Gentile, also
or death, have the right which has been as- helped Mussolini's claim lo the greatness of Italy as lhe
sumed by him, to do everything that serves the center of European civilizaiton and fired him to vainly
achievement of victory or contributes thereto. recapture the lost glory of Rome. In England, the Neo-
The Fuhrer, lherefore. must-without being Hegelian Bosanquet arrived at a milder conclusion. For
bound by existing rules oflaw-in his ca pa city Bosanquet. the law remained as the framework within
as Fuhrer of the nation, as Supreme Com- which the socio-economic revolution is lo be achieved.
mander of the Armed Forces. as Chief of the which means a legal change. In the erstwhile Union of
Government. and as the supreme possessor of Soviet Socialist Republics. Vishinsky. who. at one time.
executive powers, as supreme lord of the judi- was his country's Foreign Minister, also advanced lhe
ciary, and as Fuhrer of the Party, at any time same idea oflaw-power thal exisls only in administra-
be in a position to order if necessary any tive ordinances or executive orders given by lhe leader.
German- be he a common soldier or officer, For him. of course, lhevarious bourgeois theories oflhe
low class or high class. officer or judge, execu- nature of the law and slate are false.
tive or ministerial functionary of the Party.
laborer or employer-with all means which he 22. MODERN TELEOLOGICAL ANALYSIS
deems suitable to fulfill his duties. after con-
The dramatic events of recent history. e.g. , the
scientious examination. with the punishment
occurrence of two world wars within a period of only
which is due him, withm. ~t regard to so-called
twenty-five years and lhe ascendancy of radicalism.
vested rights. and to remove him from office.
have given rise to a fresh teleological reassessment of
from his rank. and his position without the the problem of defining the structure and fabric of lhe
institution of prescribed procedures.111 legal order.
This totalilarian concept of the law became possi- A. JURISTIC APPROACH
ble because the Hegelian synthesis of voUcsglauben
In the Greco-Roman-Aquinian view, the starting
l lOLoewenstein, Law in the Third Reich, 45 Yale Law Journal,
point in the postulation and development of the concepl
779. of law is lhe moral nature and good failh of man. Bul
1 11 Jn Re Leejer's Estate, 127 Cal .. App. 550, 274 P.2d. 239. modern teleologicaljurisprudenls, notablyJosefKohler
242.
168 LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 169

and Sidney Hook, consider a knowledge of right and conditions. Even those that are supposed to be firm
wrong or good and evil that is relative to the changing have, time and again, been changed as they are made
conditions of time. place. and people. effective by legal institutions. For example. take the
principle that ignorance of the law excuses no one from
B. ETHICAL REt.ATtvrtY compliance therewith, particularly in crimes mala
prohibita. where intent is immaterial. Should this be
While in agreement with historical jurisprudence tempered with "sound reason and mercy?" Are not
that the national oblutiacs cannot be ignored, Joseph common sense and compassionate treatment of an
Kohler felt that they cannot be solely relied upon either. offender or adversary changeable values? Was this,
And while Kohler also agrees that natural law might then, the reason why the principle was not applied at all
supply some kind of standard still the precepts of the in the case of People v. Navarro, 11 2 involving a thirteen-
natural law have no fixed meaning and may vary from year old girl who was arrested for selllng a tin of cocoa
time to time. In Kohler's own words, "there is no ideal for an amount eleven centavos more than the ceiling
absolute or absolute ideal." By this is meant that there price. while tending her sister's variety store when the
is simply no absolute formula (e.g., natural law phi- latter was away at the time? And is this the reason, too,
losophy] to determine the di1Terent aspects of the legal why it is wrong to lie but not. it seems, to deceive the
ordering of society. Kohler emphasized that "legal enemy in times of war?
concepts. including law, have their respective ideal
tendencies not the same tendencies." Perhaps the strongest declaration of ethical rela-
tivity of modem teleological jurisprudence is found in
Sidney Hook posited another direction. For Hook. the case of Dennis v. United States, 113 otherwise known
the criterion of what is right really depends on what he as the American Politburo case. The Supreme Court of
called the ..primary desires" of the people, which. the United States, speaking through ChiefJustice Fred
however, are cons tan Uy in flux. Thus, for Sidney Hook, Vinson. minced no words in saying:
the problem "of what is right and what is wrong is to be
conceived as the equilibration of interests and their The First Amendment requires that one
adjustments to environment. The relativity of our be permitted to believe what he will. It re-
ethical beliefs is plimafacie evidence that good and bad quires that one be permitted to advocate what
depend upon our primary desires. and as these change he will unless there is a clear and present
the qualities of good and bad change." danger that a substantial public evil will result
therefrom (339 U.S. at page 412, 70 S.Ct. at
Thus. Joseph Kohler's "ideal tendencies" and Sidney page 691, 94 L.Ed. at page 924). But we
Hook's "primary desires" set the trend in modem tele- further suggested thatneitherJµstice Holmes
ological thinking and analysis in matters pertaining to
the legal order away from the "ideal absolute or absolute
ideal" towards the notion that all concepts. e.g., law, good, 112c.A-G .R No. 11846-R, 51 0.G. 4063.
right. are relative to the other transitory values and 113341 U.S. 494. 71 S.Ct. 857, 95 L.Ed. 1137.
LEGAL PHILOSOPHY TELEOLOGICAL PERSPECTIVE 171
170

nor Justice Brandies ever envisioned that a Natural law absolutes have found their way into the
shorthand phrase should be crystallized into very structure and fabric of our legal system."t 15
a rigid rule to be applied inflexibly without
regard to the circumstances of each case. To be sure, Chief Justice Vinson was referring to
Speech is not absolute, above and beyond the clear-and-present-danger test posited by Justice
control by the legislature when in its judg- Holmes. For Vinson, the Holmesian test is relative in
ment, subject to revision here, is that certain character not rigid and inflexible. Vinson explained
kinds of speech are so undesirable as to that "obviously, the words cannot mean that before the
warrant criminal prosecution. Nothing is government may act, it must wail until the putsch is
more certain in modern society than the about to be executed, the plans have been made and the
principle that there are no absolutes, that a signal is awaited .... It is the existence ofthe conspiracy
name, a phrase, a standard has meaning only which creates the danger. . . . If the ingredients of the
when associated with the considerations which reaction are present we cannot bind the government to
gave birth to the nomenclature . . . . To those wait until the catalyst is added."1 16 For Vinson, the
who would paralyze our government in the Holmesian test may furnish a satisfactory criterion in
face of impending threat by encasing it in a cases ofordinary speeches advocating force and violence,
semantic strait jacket we must reply that all butit is not an expedient standard to apply in connection
concepts are relative.
with clandestine and underground acts to overthrow
the government in the context of crisis upon crises.
It is noteworthy that Chief Justice Vinson's view
did not draw any dissent from the other members of the The present concern or emphasis of modern tele-
Court. This is not surprising because what the Court ological jurisprudence is a recognition of Rudolf
stated had been made before by Justice Felix.Frankfurter Stammler's concept of natural law with a changing
in American Communications Association v. Douds. 114 content. Thus justice. as a test for both national and
Nevertheless it drew the criticism of Professor William international legal ordering. is induced by varying
Bentel. "The trouble with Mr. Justice Vinson's argu- factors and changing times. Whether this is a threat to
ment." said Bentel, "is that the founding fathers, being the moral nature of human beings or to morality itself
disciples of the natural law. believed in absolutes, and is a major problem of ethicists.
the FirstAmenrlment to the Constitution states such an
absolule .... The Smith Act abridges the freedom of Modem teleological perception ofwhat is right and
speech ... and is therefore plainly . .. unconstitutional. what is wrong is very well illustrated in the problems
Whether one likes it or not. the nalural law theory of involving acts constituting crimes comm1tted on the
absolute truth has exerted a tremendous influence
upon our lawmakers and drafters of our Constitution. 115Bentel, W., Relationship of Natural Law to Experimental
Jurisp_rudence, 13 Ohio State Law Journal, 168.
116341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 867.
114339 U .S. 382. 397, 70 S.Ct. 674, 683, 94 L.Ed. 925, 942.
172 LEGAL Pl!ILOSOPl-IY TELEOLOGICAL PERSPECTIVE 173

basis of superior commands or tacit encouragement. C. INTEREST OF TIIE STATE


From a military point of view, sanction or punishment In public affairs, the interest in the integrity and
does not follow the execution of such orders since they stability of the state has been considered the supreme
are issued to be carried out. As a matter of fact. the morality or ultimate value of society. TI1is is based on
basis upon which any operation is earned out are the theory that if the state cannot protect its own
orders and commands. Discipline is the very essence structure, then it follows that no subordinate value can
of military life. But modem teleological jurisprudence be protected.11 7 In other words, the state appears to be
qualify the order if it is to be admitted as an exempting the only institution capable of extending protection to
or mitigating circumstance. Thus, if the superior order human rights and freedoms. The interest of the state
itself is void ab initio or criminal upon its face, then, the has, therefore, become the cardinal standard or meas-
plea of superior command will not prosper. But what ure of actions in the legal order, especially with regards
is an order crlminal upon its face or void ab initio? to judicial interpretation and review of cases involving
Apart from this problem. the superior order or tacit government and governmental problems. At bottom,
encouragement may be considered a qualifying cir- when an act or conduct and its consequence are in
cumstance if it is shown that imminent personal or conformity with the interest of the state, then they are
family danger deprived a subordinate of his freedom to considered as good and just.
choose what is right or refrain from what is wrong. As
to the responsibility of passing such an order down the This idea ofjustice was previously emphasized by
chain of command, the plea of superior order or tacit David Hume. His view of justice is essentially an
encouragement will not also prosper if it is criminal attempt to elude or avoid the ancient predilection of
upon its face. In such a relative manner was the relating ethics with the concept of justice. Hume
doctrine of morality and good faith applied in the posited the view that "reason is and ought only to be the
Nuremberg German High Command Trial. The plea of slave of passions. "118 Reason recognizes utility but
superior order or command was unacceptable when a passion to be sure provides the compelling force of all
subordinate of ordinary sense and understanding has actions. If this is so, then the solution of the problem
had a moral choice. that is to say the person concerned of what is right and just cannot be derived from reason
would under the circumstances know the immorality because man's reason can dwell on and discover only
and injustice of the order or command. The burden of what "is", that is to say by deduction from premises and
considering what ought to be done is thus squarely on observation of acts and events happening before him.
the individual concerned. This would not be an easy Hume believed that an act or an idea is either approved
determination at all for there is no doubt that it is or disapproved on the basis of the public benefit from it.
complexed by the personal assumption that the superior And it can only be agreeable to the members of the
order or tacit encouragement is legal or that death by
firing squad is a possibility in case of disobedience.
117Dennis v. United States. 341 U.S. 494 at sec. 15.
118 HUME, D., A ThEAnsE OF HUMAN NAruRE, 415. CJarendon
Press, Oxford.
174 LEGAL PHILOSOPHY TELEOLOGICAL PERSPF.cTIVE 175

community as a whole when it is not destructive of the another. At the very least, this synthesis avoids a
state since the latter is the recognized protector of the devitalizing split among these attributes and achieves
liberties and of the people. Thus, in Hume's legal the integrity of the law.
philosophy.justice is related to the interests of the state
and makes of.it no more than a social virtue. Putting
this somewhat differently, that which fulfills the inter-
est in the integrity and stability of the state is justified
and will be enforced by its.coercive power, even though
it may be unfair in the individual cases. Otherwise. an
act or conduct would still be considered. unjust even
though its fair in the individual cases. It is obvious that
justice in Hume's thinking may or may not be endowed
with fair equality, which Aristotle had vigorously ad-
vocated.

23. ESSENTIAL ATTRIBUTES OF THE LAW


The development of the teleological concept of the
nature of the law brings out clearly the diversity of
emphasis as to the essential attributes of the law.

From the Greco-Roman-AQ,uinian viewpoint. right


reason in relation to justice and equity is the essential
attribute of the law. For this ancient concept, the law
is considered binding because it conforms to the pre-
cepts of the natural law. From the utilitarian point of
observation, the greatest happiness of the greatest
number in the community, in terms of both individual
and social interests, is the important attribute of the
law. In effect. this means that the law is binding
because it is useful. From the modem teleological
analysis, the free willing individual in a changing
society stands out as the essential attribute of the
law.

This diversity of emphasis does not in any way


suggest conf4sion. These attributes complement one
CHAPTER IV PosrrMsr PERSPECTIVE 177
legal systems. In this sense. it is also one of the recent
THE POSITIVIST PERSPECTIVE methods of the science of law. I
24. Seed of Legal Positivism In dealing with mature legal systems. the positivist
25. The Positivist Approach school of jurisprudence. which John Austin (1770-
A Law Not Necessarily a Moral Concept 1859) developed, uses the method of comparative
B. Uncluttered by Metaphysical Speculations analysis. 2 But it is obvious that the analytical
technique is not exclusive with this juristic school.
26. Hobbes-Austin Concept Consequently, the term "analytical jurisprudence" is
27. Legal Positivism not quite appropriate.
28. The Pure Positive Law Response The label "positivistjurisprudence" is preferable. It
A Lausanne Brand emphasizes the perception of this particular school of
B. Vienna Brand jurisprudence that the law is consiously created by the
(1) Purification of Positive Law state. As such, the law is positive, that is to say posited
(2) Normative Legal Order by the authority of the state.
(3) Empirtcal Justice
29. The Law and the State As stated in the previous chapter, the seed of
legal positivism was planted by Socrates. In Plato's
30. The Supreme Political Superior dialogue Crito, Plato recorded that the followers of
31. Essential Attributes of the· Law Socrates sent Crito to help Socrates escape from prison
A Conscious Formulation after he was sentenced to forfeit his life. Socrates
B. Generality refused and told Crito that while he considered the
C. Authoritative Enforcement sentence passed upon him to be unjust and unfair it
was, nevertheless, lawfully rendered and, therefore, he
32. Conflict with the Historical View intended to obey it.
24. SEED OF LEGAL POSITMSM
Analytical jurisprudence, as some are inclined to
label this particular perspective of the nature of the law, 1Pound R., The Scope and Purpose of Sociological Jurispru-
dence 24 Harvard Law Review, 591,594.
is one of the older systems of legal science in the sense 2From 1826 to 1833, John Austin was Professor of Jurispru-
that the beginnings of legal science among Roman dence at the University of London. His LECTURES oNJuR1sPRUDENCE
jurisprudents are to be found in the use of analysis. became the standard for England and the United States. In
But analytical jurisprudence deals also with mature continental Europe, Hans Kelsen, Professor of Civil and Compara-
tive Law at the University of Vienna, later Professor of Political
Science at the University of ·California, produced works on the
analytical or positivist perspective.
178 LEGAL PHILOSOPHY PosrrMsr PERSPECTIVE 179

25. THE POSITIVIST APPROACH out of the laboratory. The legal positivists are per-
suaded that the legal order can exist without conscious
There are two important points underlying the regard for the norms of morality, although the latter's
positivist approach to the problem of the nature of the influence are not completely denied. 5 There are legal
law. They both refer to the recurrent question of the rules that do not measure up to the norms of moral law
separation of law from moral law and from natural law. but they do not. on that account alone, cease to be legal
rules. They continue to command the obedience of the
A LAw NOT NECESSARILY A MoRAL CoNCEPT members of society. ·
The idea of the teleologists that the norms of moral
B. UNCLUTTERED BY METAPHYSICAL SPECULATIONS
and natural laws are inherent in the concept of the
nature of the law is emphatically criticized by the The second characteristic of the positivist
positivist school of jurisprudence. John Austin, in approach to the problem of the nature of the law is that
particular, advocated the separation oflaw from moral it views the issue by way of the empirical sphere of
and natural laws, as follows: reality - the is - rather than the transcendental
sphere of the ideal-the ought. The legal positivists do
With the goodness or badness of the law not hide their disillusionment with the use of the
as tried by the test of utility or by any of the natural law theory in the legal ordering of society. The
various tests which divide the opinions of teleological idea of a supra positive law as the standard
mankind it has no immediate concern. 3 of validity of positive law is criticized as "transcend-
ental nonsense." The reason for this critique is that the
It should be noted that with the use of the
precepts of the natural law are vague, for, indeed. their
adjectival phrase "no immediate concern" John Austin meaning are not shared in common by everybody.
was saying that the law is not necessarily interested in
What the precepts of the natural law mean are matters
or anxious for the norms of morality. Stated differently,
of personal understanding and even discrimination. To
moral considerations do not consciously precede the
be sure, there are conflicting notions about what the
law, although they may indirectly influence it. For precepts of the natural law precisely mean making it
John Austin, the relationship between law and morality very difficult to accept which one is correct. and to
is only accidental, not direct. accept all would simply be self-deception. 6 The posi-
tivist school of jurisprudence has felt all along that it
The principcil thrust, then, of the positivists is to is better to free the concept of law from metaphysical
keep the legal order apart from the perplexities of
ethics,4 just as the physicist would like to keep them
5J enkins, I., The Matchmaker or Toward a Synthesis of Legal
3caims, H .. Legal Theory, 9 Rutgers University Law Review, Idealt~m and Pos itivism. 12 Journa l of Legal Education, 18.
388. Kelsen, H.. The Pure 'Theory ofLaw and Analytical Jurispru-
4 stumph, S., Austin's Theory ofSeparation ofLaw and Morals, d ence, 55 Ha rva rd Law Review, 44, 70.
14 Vanderbilt Law review, 117. 119.
180 LEGAL PHILOSOPHY POSITIVIST PERSPECTIVE 181

speculations. The positivists have thus avoided the owned by everyone of the people, and that which every
study of the nature of the law characterized by the man will have so., no man can say is unjust." 11
ought.
John Austin embedded some ofthe ideas ofThomas
26. HOBBES-AUSTIN CONCEPT Hobbes in his perception of the nature of the law. Like
Hobbes. Austin was also perplexed by the criticisms
While more than a century and a half separate the directed at legislation which did not conform to the
writings of Thomas Hobbes (1588-1679) and John precepts of the natural law. Thus. in Austin's view. it
Austin (1790-1859) they are, nevertheless, recognized is absurd for one to say. as William Blackstone did in his
as the jurisprudents who developed the concept of law Commentaries on the Laws ofEngland. that positive law
in terms of legal positivism. is void if it is not in accordance with the natural law.
Austin strongly felt that Blackstone erred because h e
Thomas Hobbes was irritated by the attacks lev- failed to distinguish the issue of conformity of positive
elled at laws which did not meet the criterion or test of law to the precepts of the natural law from the question
justice. But, according to Hobbes. "before the names of of validity of positive law. For Austin, the issue of
just and unjust can take place. there must be some conformity and the question of validity are two entirely
coercive power to compel men equally to the perform- different problems with different solutions. On this
ance of their covenants . . . and such power there is matter Aus tin emphasized that:
none before the creation of the commonwealth."7
Hobbes. then. posited the idea that it is improbable for What appears pernicious to one person
any statute to be unjust. He explained that "laws are may appear beneficial to another.... To prove
the rules of just and unjust. nothing being reputed by pertinent reasons that positive law is per-
unjust that is not contrary to some law. "8 Thus. for nicious is highly useful because such process
Thomas Hobbes, the "sovereign . . . is not subject to may lead to the a brogation of the pernicious
the laws for having the power to make and repeal laws. law. To incite the public to resistance grounded
he may. when he pleases, free himself from their on clear and definite prospects of good is
s ubjection."9 Stressing the point further. Thomas sometimes beneficial. But to proclaim generally
Hobbes stated that "to the care of the sovereign belongs that all laws which are contrary to the natural
the making of good laws."10 By "good.. laws Hobbes law are void and not to be tolerated is to preach
meant not "just" laws for laws cannot be unjust since anarchy. hostile and pernicious as much to
they are made by the sovereign power. Hobbes concluded the wise and benign rule as to stupid and
that "all that is done by such power is warranted a nd galling tyranny.1 2

7LEVIATIAN, HARVARDCU\SS1cs, 87. P.F. Collier & Sons, New York.


8fbtd., 189. 11 Ibid.. 252.
9Ibld., 190. 12Ausn N, J ., LECTIJRF.s IN JurusmuoENCE, 215. Library of Ideas
lOfbtd.• 191. Edition. J .P. Putnam & Sons, New York.
182 LEGAL PHILOSOPHY PosmVIST PERsPECTrvE 183

John Austin's aversion to the philosophy of the no influence on positive law. Austin. continued Hart.
natural law is based on the view that the ..ought" is cannot even be said to imply that positive law is non-
really non-existent. The actualization or realization of moral.16 Huntington Cairns is similarly minded. Cairns
that which ought to be results only in its own cancella- explained that one can argue that positive law must
tion. conform to moral law and natural law but to say that
positive law is null and void simply because it is
The concern, then. of jurisprudence is to examine contrary to moral law and natural law is foolish and
the question of the nature of the law without cluttering absurd. 17
it up with axiological baggage.13
Thus, in the perspective of positivist jurispru-
27. LEGAL POSITIVISM dence, legal rules can be sound or silly. good or bad. so
long as their silliness or badness is general in scope.
For John Austin. the derivation, development and that is to say such rules affect all persons belonging to
thrust of the law is one thing its merit or demerit a particular class.
another.14 Austin insists. even though impatiently and
rigidly. that there is a clear-cut distinction between law It is at this point that the question of binding force
and morals and between law and natural law, as of positive law arises. If moral considerations do not
follows: consciously precede the law how. then. can it merit
obedience? John Austin made it abundantly clear that
The confusion of them under a common positive law does not exist in a vacuum simply because
name and the consequent tendency to con- of the separation of positive law from moral law and
found law and morals and law and natural law natural law. Positive law has a criterion or test of its
is one prolific source of jargon, darkness and own, namely. the philosophy of legal positivism which
perplexity. By a careful analysis of leading rests on the triune concepts ofsovereign. command and
terms. law is detached from morals and natural sanction. This simply means that any violation of the
law. and the attention of the students of command issued by the supreme political superior is
jurisprudence is confined to the distinction an infraction thereof and subject to sanction.18
and division which relate to law exclusively.15
Herbert A L. Hart agrees with John Austin. Hart, 28. THE PURE POSITIVE LAW RESPONSE
however. pointed out that Austin did not say that the Notwithstanding the logical structure of the
norms of morallaw and the precepts ofnatural law have

l 6HARr, H.AL., THE CoNCEl'f OF LAw. 199-200. Clarendon Press,


13Ausi1N. J .• TI·•E PROVINCE oFJ urusPRUDENCE DETERMIN~;o, 126. Hart London.
Edition. Oxford University Press, London. 17Calms, H .• Legal Theory, 9 Rutgers University Law Review,
14 /bid .. 214. 275.
15/bid.. 371. 181dem.
184 LEGAL PHILOSOPHY PosrrMST PERSPECTIVE 185

philosophy of legal positivism and the explanation of following the intellectual movement away from Roman
its proponents. legal positivism has not avoided Law principles which Frederich Karl von Sa.vigny
the nagging charge that il lacks a sense of moral started, sought the purification of positive law on the
responsibility. Every once in a while. this issue has basis of creative thinking. Ernest Roguin felt very
been revived. In these debates. posilivistjurisprudents strongly that the answer to the problem of the validity
insist ilial nothing is immoral or amoral that is legal. of positive law lies in pure juridical science consistent
But the critics reply that the philosophy of legal posi- with the culture of the people.
tivism has not quite succeeded in separating law from
the norms of moral law and from the precepts of natural A case in point is the controversy that swirled
law. around the codification of the civil laws of the regional
provinces of Germany which was finally completed in
One such debate occurred between Professor 1896 and took effect in 1900 as the German Civil Code.
Richard V. Carpenter and Professor Gerhard 0. W. Prior to the publication of the first draft of the Code in
Mueller in the pages of the Journal of Legal Education, 1887, Frederich Karl von Savigny and Otto von Gierke
published by the Association ofAmerican Law Schools.19 vigorously contended that the application of Roman
Another t.ook place between Professor Herbert A. L. Hart Law principles in the different Germanic provinces for
and Professor Lon L. Fuller in the pages oflhe Harvard nearly 400 years was an unpardonable insult to the
Law Review.20 Lately, Professor McCormach, Profes- German volksgeist Savigny and Gierke felt that the
sor D'Amalo. and Professor Boyle discussed the issue civil laws of the different Germanic provinces had been
once more in Volume 20 of Valparaiso University Law unduly subjected to and unnecessarily enlarged by the
Review. culture and legal traditions of another people. For
Savigny and Gierke, German law should be developed
Thus, certain studies have been made lo reorient on the basis of pure German culture and traditional
the positivist concept of the nature of the law. The legal materials. Another case in point is the controversy
response has taken the form of the "pure positive law" surrounding the codification of the laws of the state of
theory. New York. James C. Carter published a polemic
entitled On the Proposed Codification of our Common
A. LAUSANNI~ BI{AND Law to which David D. Field answered with a pamphlet
entitled A Short Response to a Long Discourse. Carter
Ernst Roguin of the University of Lousanne,
led a successful opposition to the adoption of the
19carpenter, R.. The Problem of Value.Judgements as Norms proposed Civil Code ofSubstantive Law drafted by Field.
ofLaw, 7 JournalofLegaJ Education. 161; Mueller, G ., The Problem In his opposition, Carter utilized a good deal of the
ofValue Judgements as Nom1s of Law: The Answer of a Positivist, 7 arguments of Savigny and Gierke.
Journal of Legal Education, 567; Carpenter. R.. Reply Loa Positivist.
8 JournaJ of LegaJ Education, 185.
B. VIENNA BAAND
20Hart, H .• Posltivism and Lhe Separation of Law and Morals.
71 Harvard Law Review. 593; Fuller. L., Positivism and Fidelity Lo Almost a quarter of a century separates Ernst
Law: A Reply to Professor Hart. 71 Harvard Law Review. 630.

I
LEGAL PHILOSOPHY PosrrMsT PERSPECTIVE 187
186

Roguin·s "pure juridical science" from the ..pure posi tlve The cause, in other words, of the impure positive law is
law" theory of Hans Kelsen (1881-1953) of the Univer- the confusion oflaw with axiological ideas. For Kelsen,
sity ofVienna. Kelsen simply removed from the concept axiological or metaphysical ideas are not legally coer-
oflaw any moral implications. This has surprised many cive. Furthermore, they remain as such even when they
jurisprudents because Kelsen has gone further than are heeded. They do not. therefore. become norms of
Thomas Hobbes and John Austin. While Austin's positive law. The law is simply not pure when cluttered
concept oflegal positivism "has no immediate concern" with axiological norms. Thus. the validity of the norms
for the norms of morality and the precepts of natural of positive law no longer depend on their correspond-
law, Kelsen's concept of "pure positive law" simply encewithethical norms24 or precepts of natural law.25
dropped Austin's qualifying adjective "immediate" and Herein lies the distinction between norms of positive
posited the idea that "the concept of law has no moral law on the one hand and the norms of moral and natural
connotations whatsoever. "21 law on the other. This is what Hans Kelsen means when
he posits the idea that the concept oflaw has no moral
The thrust of Hans Kelsen's pure positive law connotations whatsoever. The law is indeed separate
theory is to understand the nature of the law empiri- from moral law and natural law.
cally. He explains that "the pure positive law theory
considers only human norms, not norms coming from (1) Purification of Positive Law
other superhuman sources" and that "it does not try to In explaining his approach to the problem of
consider the law as the offspring of moral law and purification of positive law, Hans Kelsen emphasized
natural law, as a human child of a divine parent. The that the process is simply an inquiry into the nature
pure positive law theory insists upon a clear distinction of the law as it is, in much the same manner as the
between empirical law and transcendental norms by natural sciences are studied. The universe, for
excluding the latter from its specific concern. Only by instance. is studied as it is and not how it ought to
separating the theory of the law from a philosophy of operate.
justice as well as from sociology is it possible to estab-
lish a specific science of law. "22 Hans Kelsen states that the nature of the law
must be presented empirically, that is to say it must
Thus, for Ha ns Kelsen. there is no reason anymore stand on its own merit without make-up of axiological
to misinterpret the pure positive law by any of the ideas. and that the law must not be politicized because
various tests which divide the opinions of mankind. 23 in the clash of diverse political values it is the law that

21KELSEN. H., THE G ENERAL Tt·tEORY OF Ll\w AND STATE, 5. Harvard


Univer sity Press. Cambridge. 24KELSEN, H .. THE GENERAL THEORY OF Ll\w AND STATE , 5 , 304.
22K~:LSEN, H .• op. cit., xv. H a rvard University Press. Cambridge.
23Kelsen. H ., On the Basic Norm. 47 California Law Review, 25KELSEN. H .• II Ll\w: A CENTURY oF PnocRESS, 231. New York
University Press, New York.
269. 2 74.

I
I
188 LEGAL Pl-ltLOSOPHY PosrrMsr PERSPECTNE 189

is compromised and invariably loses its power as a norms after they have been created by acts of
means of social control. As to the first. Kelsen expounds human will, but it cannot create norms. Only
at some length: in God may reason and will be considered to
coincide: only of God can people believe that
The pure law theory takes into considera- knowing what ought to be is identical with will
tion only the norms created by acts of human that it ought to be. 26
beings, not norms emanating from other su-
perhuman authorities. Therefore. it excludes And concerning the second point that the law must
from the province of jurisprudence any divine be free from the vicissitudes of politics in order to
law, that is law supposed to be created by God guarantee its force, influence and validity in the legal
or godlike entity. Consequently. it excludes ordering of society, Hans Kelsen elucidates:
also the so-called natural law, law which
according to the natural law doctrine is imma- It is the ideal of juridical positivism to
nent in nature. Law - meaning norms preserve the theory of positive law from the
regulating human behaviour - can be im- influence of any political tendency or which
manent in nature only if nature is considered amounts to the same thing from any subjec-
to be a ·lawgiver. To consider nature as a tive judgement of value.27
legislator implies or attributes a will to nature.
This is either an animistic superstition or a (2) Normative Legal Order
theological interpretation of nature based on
the belief that nature is created by God and With this methodology, Hans Kelsen postulates
hence a manifestation of God's absolute good the nature of pure positive law as a hierarchy of non-
will. This is a metaphysical assumption in- contradictory norms finding their force, influence and
compatible with any scientific cognition and validity on the grand, unchallengeable norm.28 nus
hence also with a science of law. means that the nature of law "is not simply a system of
The same objection applies to that coordinated norms of equal level but a hierarchy of
version of the natural law doctrine which norms of different levels. "29 If the law were a system of
pretends to find the just norms of human coordinated norms ofequal level only. e.g. norms ofmoral
conduct in the nature of man, particularly his laws. precepts of the natural law. then, legal norms
reason. Reason is the faculty of cognition. By
our reason we are able to know, to understand
or comprehend a thing which is given as an 2 6 Kelsen, H., What ts the Pure Theory ofLaw?, 34 Tulane Law
Review, 269,274.
object ofcognition. independently ofthis mental 27KELSEN, H., ThE GENERALn-iroRY OF I.Aw AND STATE, 438. Harvard
operation. To set a norm. to prescribe some- University Press, Cambridge.
thing, is a function of will, and human will is 28KELSEN, H., op. cit., 5.
a psychic phenomenon totally different from 2%elsen, H.. What ts the Pure Theory ofLaw?, 34 Tulane Law
human reason. Human reason can know review, 269.

;
190 LEGAL PHILOSOPHY POSITMST PERSPECTIVE 191

would not be positive or jussive and would be hard put is, or something is done" and the sentence "something
to serve as guides to the legal ordering of society. In should.be, or something should be done." Kelsen states
other words, there must be a pedigree of non-contradic- that the first sentence is an "is-statement" while the
tory norms, a chain, as it were, of valid norms in the second sentence is a "should-statement."33 The dis-
legal order. Thus, if for example, a rule or a regulation tinction is basic to the solution of the questions men-
lacks tllis legal lineage, then, it cannot claim a place, tioned above.
let alone a valid one, in the Werarchy of norms.
The is-statement that sometWng is or sometWng is
According to Hans Kelsen, the grand and legally done expresses a simple reason or motive for action.
unchallengeable norm, or simply the grandnorm, "is The should-statement that sometWng should be, or
not the product of free invention nor is it presupposed sometWng should be done, or sometWng should not be
arbitrarily. "30 The grandnorm is conceived by the done is expressive of a different kind of reason for
collective. will, capacity and competence of the people action. It is a tense indicative of a conscientious desire
free from axiological ideas.31 The law, then, is com- to discharge an obligation.
pletely objective for its force, influence and validity no
longer depends on moral law and natural law. Thus, for Take the narrower question why should people pay
Hans Kalsen, the grandnorm and all non-contradictory taxes on time? As stated above, there are two reasons
norms emanating therefrom are all valid, regardless of for complying with the legal norm of paying taxes on
criticisms based on natural law and moral law.32 time. One is simply to act in order to avoid unpleasant
consequences, indicating that the taxpayer will not pay
This brings the purification process of positive law at all if he or she can get away with it. In tWs situation,
to the question of normativeness. Why is the law the motive of the taxpayer is merely to avoid criminal
normative or jussive? To phrase the issue differently, prosecution. The response of the taxpayer that she or
why is the law authoritative and prescriptive in charac- he pays taxes on time because the legal norm commands
ter? To narrow down the question, why should the Wm or her to do so is obviously an is-statement. Here
members of a politically organized society .c onform their the normativeness of the legal norm has evaporated.
conduct and actions to the norms of positive law? And, The other reason for paying taxes on time is to discharge
to specify the issue for illustrative purposes, why should a conscientious obligation. According to Hans Kelsen,
the people pay their taxes on time? the answer to the question why people should pay taxes
on time, to be in any way correct. must be based on a
The answer must deal with the difTerence that should-statement. vtz., the people should pay taxes
Hans Kelsen stressed between the sentence "something on time because the legal norm should be observed or
obeyed. Here, the should-statement (why should the
30iu:tsEN, H., THE PuRE THEORY oF LAw, 2nd Edition, 210. Unl-
versl~ of California Press, Berkeley.
1Ibld.. 202. 33Ke1sen, H., What ts the Pure Theory ofLaw, 34 Tu lance Law
Review, 269-270.
32Ibld., 68.

'
192 LEGAL PHILOSOPHY Posmv1sr PERSPECTIVE 193
people pay taxes on time) is not answered by an is- a legal norm is created may be by any of the means
statement (because the legal rule commands them to do allowed by the grandnorm. When the different branches
so) but by another should-statement (because the of government act, their actions are measures of coer-
people should obey the legal norm). 3 4 There is a cion. 35 There are sanctions or incentives or both
different justification for action, namely, a conscien- annexed to the legal norm. Hans Kelsen states that it
tious desire to discharge an obligation without any is by this very fact and only by this fact that the legal
thought of getting away with anything. norm is distinguished from social norms. 36 If the law
is not considered as a hierarchy of non-contradictory
Thus, in the normative legal order. the jussiveness norms, then the law cannot be perceived as pure and
of a legal norm is not only preserved but its functions positive, that is to say normative or jussive. In this case,
are also clarified. namely, the prescriptive function the law can no longer be differentiated from other social
ordaining persons to give, to do or not to do something: phenomena and the law would no longer be pure and
the authoritative function delegating to persons the positive. 37 Because of the jussive nature of the law the
power to issue rules and regulations implementing members of society are obliged to conduct themselves
some prior legal norm; and the pemlissive function in the manner prescribed, or authorized, or permitted
allowing persons to give. to do or not to do something. by the legal norm. Thus. no further deliberation on the
Thus, when a legal norm ordains (prescriptive function) part of ·the members of society is necessary. They
that a certain action or conduct is prohibited, e.g., should observe or obey the legal norm or otherwise·
trespass to dwelling or property. double jeopardy. then suffer the consequences. This undergirds the philoso-
the legal norm should provide sanctions for its viola- phy of legal positivism and is unquestionably the best
tion. When a legal norm delegates (authoritative defense yet for the positivist theory of the conceptual
function) a certain matter, e.g., issuances by an ad- independence of law from moral and natural laws. 38
ministrative body of rules and regulations. then the
legal norm should provide the force of society to back it Obviously. this concept of a hierarchy of non-
up. And when a legal norm allows (permissive function) contradictory norms create the conditions of peace and
a certain kind of action or conduct. e.g.. self-defense, order. Behavior which adversely affects these condi-
then the legal norm should provide exemption from any tions are dealt with by the force of a politically organized
Ii
sanction. society. If individuals were able to do the very things
that are not prescribed, authorized, or permitted by the
By postulating the concept of the hierarchy of
different levels of norms. Hans Kelsen can be said to
have succeeded in harmonizing the is and the ought in 3 5KELSEN, H ., Tl-rEGENERAL ThEoRYol'LAwANoSTATE, 18. Harvard
his theory of pure positive law. Now, the fact by which University Press. Cambridge.
36KELSEN,H., op. cit., 25.
37KELSEN, H., op.ctL, 26.
34Kelsen. H., On the Baste Norm. 47 California Law Review, 38McCormack, N., Contemporary Legal Philosophy: The Re-
107. discovery of Practical Reason. 10 Journal of Law and Society , l.
194 LEGAL PHILOSOPHY PosITMsr PERSPECTIVE 195

legal order, then the physical conditions of peace and axiological underpinnings to evaluate the soundness of
order would be cancelled. The law would no longer be the legal norm defining what really is due to every
jussive. License or lawlessness would supervene. person. Kelsen was after justice that is "real and
possible."41 And, in relation to the legal ordering of
Thus, the pure positive law of Hans Kelsen is society.justice is real and possible when it ls appropri-
different from Hobbes' and Austin's theory of the ate to the evil which society has a right to avoid in the
nature of the law as the will of the sovereign or first place. 42 Thus, when the legal norm or the sanction
supreme political superior. For Kelsen, Hobbes' and is appropriate or suitable to the problem involved, then
Austin's view is not a juristic concept but a psychologi- justice is real and possible in a way satisfactory to all
cal one. For Hobbes and Austin. compliance with the resulting in social contentment.43
will of the state depends on the feellng of awe and
fear. ·aut for Kelsen, psychological compulsion is not In sum, pure positive law theory is Hans Kelsen's
a specific element of pure positive law.39 There are celebrated contribution to jurisprudence: Even so, it
other norms of conduct which carry t:p.e same kind of has not escaped criticism. Vilhelm Lundstedt, one of
compulsion but they are not legal norms. Kelsen the leading lights of psychological legal realism, feels
posits the view that obedience to legal norms depends that it is "a purely cultivated ideology of the law...44
on the pure fact of coercion and not on any subjective
influence on human behavior.40 29. THE LAW AND THE STATE
In the legal positivism ofThomas Hobbes and John
(3) Empirical Justice Austin, the state is percieved as the·creator and enforcer
Hans Kelsen realized the need for some criterion of the law with the power to inflict evil or pain in case its
to evaluate the soundness of legal norms in the legal desires are disregarded.45 This does not mean that the
ordertng of society. Kelsen felt that the Roman law state can do no wrong in the expression of its will. It
concept of justice, for instance, expressed by Ulpian only means that no right can be claimed against the
as the constant and perpetual wish to give every state which it has not previously accepted. In Hans
person his due will not do for this purpose. The reason Kelsen's pure positive law the personiflcation of the
is that it begs the question what really is that which a state is avoided by considering the state and the law as
person is entitled to. Obviously, even this question has
to be defined by a norm of positive law.
41 KELSEN, H .. WHAT JS JUSTICE?, l.
42rr-
n.r.LSEN, H., op. cit, 51.
Hans Kelsen simply has no place in his philosophy 43Kelsen, H .. The Pure Theory ofLnw and.Analyltcal Jurtspru-
of pure positive law for any concept of justice with dence, 55 Harvard Law review, 45.
44LuNDSrEor, V., LEGAL Tu1NK1NG REvrsEo, 400. Almquist & Wiksell,
39Kelsen, H .• ThePureTheoryofLnwandAnalyttcalJurtspru- Stockholm.
45'Aus11N,J., ThEPRo\IJNCEoFJurusmuoENc EDETERMJNED, 91. Hart
dence. 55 Harvard Law Review. 48-
4%eJsen, H.. op.ctL, 57. Edltlon, Oxford University Press, London.
196 LEGAL PHILOSOPHY POSITIVIST PERSPECTIVE 197

one for the reason that within one nation only one and the excesses in the exercise by the government of t:b~
not two compelling orders can be valid at the same powers delegated to it. But the use of this type of
Ume.46 response is dependent upon the intensity of the
governmental challenge itself.
30. THE SUPREME POLITICAL SUPERIOR
When the challenge is minimal there is no
From the concept of the law advocated by the response just as there can be no response anymore
positivist jurisprudence, the state as the collective legal when the governmental challenge has reached its
association under the rule of the majority47 is the su- maximum intensity. In the former situation. the
preme political superior. As stated above, the doctrine governmental challenge is negligible as to make any
of the non-suabilily of the state sterns from this con- impression on the people enough to excite or arouse
cept.48 their collective sense of antipathy. There is, indeed.
restraint in externalizing the reaction of the people. In
But the exercise of the will of the supreme political the latter situation. the challenge has assumed such
superior by the government is not absolute. When the tremendous proportions that the capacity of the people
exercise of power delegated to the government is a to respond has been stifled. In this event. only with
deliberate and persistent disregard of the will of the outside assistance or intervention may the will and
supreme political superior. then such adverse govern- power to resist be regained. But when the govern-
mental challenge can be blunted. curbed. or even mental challenge is at Us optimum intensity the people
denied by the response fo the majority of the members may act effectively, unless they allow the govern-
of society. mental challenge to proceed unimpeded to its maxi-
mum intensity.
The response may be manjfested in either of two
ways. The first is the peaceable type - the electoral The challenge of the government is deliberately
response which is periodic and set not loo far apart nor ambiguous. that is to say equivocal and euphemistic.
too close either. The other is the uprooting type - the There is no hard and fast rule that can be laid down with
revolutionary response. However. the revolutionary which to measure the intensity of the challenge of the
response is not easily provoked. It can even be stifled government. However, there are some guiding factors.
depending on the people themselves. It arises onlr_ in The evaluation of the governmental challenge is a
a situation of special difficulty for the people which matter that addresses itself to the conscience of the
arouses them to activity in order to check and contain people. The revolutionary response depends, then, on
the combination of the conditions producing or prom-
46Kelsen, H .. The Pure Theory of Law. 51 Law Quarterly ising to produce the best average result of success for
Review, 5 17 , 534. the people.
47s1Nco, v ., Prnur>PINE PoLrnCAI, LAw, 40. Community Publish-
ers, Inc.. Manila. ·
4Bswttzerland General Insurance Co., Ud. u. Republic of the The response to the challenge of the government
Philippines, 32 SCRA 227. cannot be applied by a minority. That would plainly be
198 LEGAL PHILOSOPHY PosrrMsT PERSPECTIVE 199

rebellion. As proposed by John Locke, the application pines are good examples of moral obligations. They fall
of the revolutionary response can be made only by the short of the principle of pacta sunt servanda. There ls
injured majority. if it is to be prornpt, resolute and no cause of action to enforce their performance. How-
effective. Thomas Jefferson echoed John Locke in ever. when they are voluntarily performed they cannot
emphasizing the reality of the revolutionary response be undone anymore even on the claim that there is no
that ..the people cannot be all, and always. well legal consideration for their performance.
informed . . . . The tree of liberty must be refreshed
from time to time with the blood of the patriots and B. GENERALrIY
tyrants. It is its natural manure."49
The rule or norm must not be in the particular
31. ESSENTIAL ATTRIBUTES OF THE LAW form for that would be determinative only of specific
acts. persons. or things. Additionally, it is really
In bringing about the desired conduct from the difficult to lay down particular rules or norms for each
members of a politically organized society, the law has and every particular or specific case. The rule or norm
three essential attributes, namely. conscious creation, must be general, that is to say it must prescribe courses
generality. and authoritative enforcement. of conduct for all members of society or for all in a
particular class.
A CONSCIOUS FORMULATION

As a conscious exercise of authority, the rule C. AUTHORITATIVE ENFORCEMENT

(Austin's term) or norm (Kelsen's term) is separate from As a rule or norm backed by the authority of the
morals. In place of moral or .subjective pressure to state, the law involves a duty to obey. This is the crucial
accept t he exercise of authority, legal positivism substi- characteristic oflegal rules or legal norms. To that end.
tuted the objective legal rule or norm for the same sanctions and/ or incentives are provided, giving those
purpose. A specific rule or norm of human conduct in authority the coercive competence to enforce the
must be articulated before there can be law of any kind. rules or norms within the limits sd by law. Obedience
It would hardly be a rule or norm if it were otherwise. to the rules or norm is required because it is the duty
to obey that survives the command implicit in the rule
The element of conscious formulation of authority or norm. In the event that the command is disregarded,
distinguishes a rule or norm of positive law from a rule then, as stated above, the sanctions are applied or the
or norm of positive morality. This element sets apart a incentives withheld. A sanction is any eventual evil
legal obligation from a moral obligation. In the case of annexed to the rule or norm and may take the form of
a rule or norm of positive morality. there is no conscious some punishment. specific or substituted redress. or
articulation to lay it down as such. The obligations enforced prevention. 50 This is the element that com-
provided in Article 1423 of the Civil Code of the Philip-

50AUSTIN, J., op.cu.. 1107.


49Letter to William Stephen Smith dated November 13. l 787.
200 L~::CAL Pl 111..0SOPI IY
PosrrMsT PEHSPECTrvE 201

pletes the jussive or imperative character of the law. the first or simple concept of liability was based on
Thus. the law is not merely hortatory or advisory. the "duty to buy off the vengeance" of the aggrieved.
person. 5 1 In the old Anglo-Saxon folkway. this simple
32. CONFLICT WITH HISTORICAL VIEW rule on liability was reflected in the aphorism "buy
spear from side or bear it...52 1bis means buy off the
The view that the law is consciously set or formu- vengeance of the aggrieved person or suffer the conse-
lated by the supreme political superior and enforced by . quences. There is a similar Pilipino aphorism: Bilhin aftg
sanctions or incentives or both has led the positivist sWidang ftg hindi na masugatan. Thus. in the begin-
school of jurisprudence to look askance at the historic- ning, a person was liable, in more senses than one, for
al perspective of the law. Fot the positivist school, injuries caused to another. According to Roscoe Pound,
customs and customary modes of decisions are the next step in the development of the concept oflegal
atypical examples of positive law. For the positivists. liability for injuries to persons or things was to set the
the law is simply the conscious creation of the supreme liability in terms of injury caused, no longer in terms of
political superior. the vengeance of the aggrieved person. Thus. the
liability took the form of reparation for the injuries done
From the perspective of legal positivism. the as well as for injuries due to non-performance of the
historical view that the law emanates from the life obligation entered into. This was further refined by
and spirit of the people is ambiguous. especially when drawing a distinction between liability ex contractu and
the element of time is taken into consideration. A legal liability ex quasi delicto.
rule, for example. cannot simply exist before the hap-
pening or occurance of the facts it purports to cover or The point of these illustrations is to show that the
govern. For the positivists. a legal rule is created development of a legal rule or concept is visible even in
consiously after the occurence of the act or event in the retrospect. The obvious way. then. to deal with the
future. conflict is to trace the rule or concept back to its simple
beginning. It is even possible that in the process the
However, the conflict on this particular issue is rule or concept may be found to have been borrowed or
more imaginary than real. This may be eliminated by transplanted from another legal system.
simply tracing a legal rule back to its simple
beginnings. Naturally the gap between the simple This process has been criticized as a very formida-
and the complex is indeed great. For instance, the ble task. But this is neither a logical nor persuasive
modern rule that obligations cannot be assigned reason for not doing so. As a matter of fact. it has
unilaterally existed in the past as~ simple concept that
a promise is strictly a personal relation between the
contracting parties. Another example is the modem
51 PoUND R.. AN INTRODucr10N romE Pi-u wsoP11Y oF LAw, 148. Yale
rule concerning legal liability. It will not. of course. be University Press. New Haven.
found in one broad leap back to the simple character- 521bid.
istics of the people. But it is on good authority that
~
I

202 LEGAL PHILOSOPHY CHAPTERV


already been done. 53 And the alleged difficulty may not
be real after all since the historical view of the relativity
THE FUNCTIONAL PERSPECTIVE
of the law to a particular place and people shows that
there is scarely a modern rule or concept that did not
have its beginnings in the past. Thus, the historical 33. Labels
concept of the volksgeist or diwayan is defensible not 34. Background of Legal Theory
only when general principles of law are concerned but
also when details are involved. 35. Reaction to Idealist and Positivist Perspectives
A. Criticism of Abstract Values
B. Criticism of Legal Positivism
36. Recognition of the Interests of Society
37. Core of Functional Jurisprudence
38. Essential Factor in the Legal Ordering of Society
39. Functional Concept of Law
40. Presentation of Conflicting or Overlapping
Interests
41. Relative Weight of Competing Interests
42. Social Interests and National Policies
A Extra-Legal Factors
B. Types of Interests
C. Means of Securing Private Interests
D. Means of Securing Public Interests
43. Categories of Social Interests
A Social Interest in the General Security
B. Social Interest in the Maintenance and
Protection of Social Institutions
(1) Domestic Institution
(2) Religious Institution
(3) Political Institution
53Evolution ofCriminal Law: Origin ofCommercial Institutions: (4) Economic Institution
The Pledge Idea: Suretyshtp: Interests: Evolution of the Law of
Procedure. Evourr10N Of LAw: SELECT READINGS ON THE ORIGIN
AND DEVELOPMENT Of L~:GAJ, I NSm"lJTIONS. Little Brown and Company.
Boston.
(
l
204 l..EcAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 205

C. Social Interest in the General Morals law seeks to discover the impact or relevance of social
D. Social Interest in the Conservation of Human diversity on the law. Thus, the sociologists hope that
Resources the principles of general sociology may influence legal
E. Social Interest in the Conseivation of Natural rules. concepts and institutions.
Resources
F. Social Interest in the General Health But under this label would, then, fall other schools
G. Social Interest in Human Personality and Dig- of juristic thought for they too have been affected by
nity the principles of general sociology. Of the several pers-
H. Social Interest in the Social Life pectives in jurisprudence considered in this volume.
I. Social Interest in the General Progress four could easily fit under the "sociological" label.
(1) Cultural Progress namely. the positivist school, the modern realist
(2) Moral Progress school. the policy-science school. and the social utili-
(3) Economic Progress tarian school. But these schools of jurisprudence
(4) Political Progress have differing views concerning the nature of the law.
J. Social Interest in the General Aesthetics
It would seem. then. that the nomenclature "func-
44. Adjustment of Conflicting Interests
tional jurisprudence" is better since the fundamental
45. Value of Functional Jurisprudence focus of this juristic school is the analysis of the
characteristic action of the law in the solution of
33. LABELS conflicting wants in terms of the interests of society.
The label "sociological jurisprudence" has been The thrust of this juristic school is to inquire into the
used to identify this particular-juristic school. How- role of the social interests in the adjustment and
ever, this name might be confusing when used to reduction of conflicting claims. demands and expecta-
identify this juristic approach as an autonomous social tions of the people. 2
science or sociology oflaw. The thesis oflegal sociology
34. BACKGROUND OF LEGAL THEORY
is that law must be subject to sociological scrutiny. that
is to say studying the relationship of the law with Although Charles Louis de Montesquieu (1689-
various social phenomena, e.g.. institutions of society. 1755) is better known to students of law as the author
obseivable behavior and functions of human groups. of the principle of separation of powers among the
social trends, power structures. organizations with co-equal branches of government. he also discoursed
bureaucratic make-up. I Differently stated, sociology of on the development of law in the social environment
in which it grows. including the morality. manners,

lPAroN, G.W.• A TExrnooK 1N JurusPRUDENCE, 18, 22. Oxford 2Po UNo, R.. hrrERPRETATioNs oF LEGAL H 1STORY, 47. 156. Harvard
University Press, London. Second Edition; Au.F.N, C., LAw IN ~IE MAKING, University Press. Cambridge; Pound, R.. ASw-veyofSoctallnteres ts,
29. Oxford University Press, London. Fourth Edition. 57 Ha rvard Law Review, 39.
206 LEGAL PHILOSOPHY FuNCTIONAL PERSPECfIVE 207

politics, and customs of the people. 3 In stressing the Gumplowicz, the application of the natural law as a
relation of law to changing social conditions . supra-positive law is not in the best interest of society.9
Montesquieu can be said to have laid down the founda- He stated that there is need to study the conflicting
tion of functional jurisprudence.4 interests of individuals of unequal strength in light of
the interests of society. The interests of society provide
Rudolf von Jhering ( 1818-1892) provided a class- the necessary suggestions and insights for the proper
ification of interests into individual interests from the solutions of the non-postponable problems of the
standpoint of individual life; public interests from the people. However, Gumplowicz's inquiry ended in social
standpoint of the public as a distinctjuristic personal- differentiations resulting in his perception that the
ity: and social interests asserted by society as a whole law is nothing but a means of securing dominion by
for the general welfare. 5 Jhering considered this clas- the stronger class through the use of the power of the
sification of interests to be relevant to his theory of state. 10
social utilitarianism as distinguished from Jeremy
Bentham's concept of individual utilitarianism. Eugene Ehrlich (1862-1922) advanced a socio-
logical concept of the "living law." In the foreword to his
Josef Kohler (1824-1919) emphasized that the book, Ehrlich stated that the development of the law
law is the reflection of the kultur and the jural postu- "lies not in legislation nor in juristic science 11or in
lates emanating therefrom. 6 Kohler posited the idea judicial decisions but in society itself." 11 By this Ehrlich
that society would do well to assume the jural postu- means that the legal order depends on the interests of
lates of the time and place in the legal ordering of society for its support. This is what Ehrlich used in
society. 7 He explained that each group of people seeks distinguishing the law lived by society from John
the kitld of legal order suitable to its kultur. Austin's concept of the law commanded by the state.

Ludvig Gumplowicz (1838-1909) advocated the These ideas gave impetus to the general theory
use of the interests of society in the solution of the of interests which Dean Roscoe Pound of Harvard
problems involving human relationships . 8 For University Law School utilized in developing the
structure of functional jurisprudence. Pound subs-
tituted the single word "civilization" for Joseph Kohler's
"kultur." Pound acknowledged that he borrowed the
~LE EsPRIT DE Lois, Book II, Chapter V, Nugent Translation.
Ehrlich, E .• Montesquieu and Sociological Jurisprudence, 29 concept of "jural postulates of the civilization of the
Harv~ Law Review, 582.
JHERING, R.. LAw AS A MEANS TO AN END, 82. Macmillan &
Company, New York.
6KoHLER, J ., PHILOSOPHY OF LAw, 49. Little Brown Company, 9/bld., 179-180.
Bosto9. 10/btd., 179.
Ibtd .• 4. l lEHRLICH, E., FUNDAMEITTALPRlNc1PLESoFSoc10LOGY AND LAws, 85.
8GUMPL.Owicz, L .• ThE OuruNES OF Soc10LOG1cAJ, JURJSPRUDENCE, 89.
Harvard University Press, Cambridge.
Irving Translation. Paine Whitman Company. New York.
208 LEGAL Pl-llLOSOPHY
FUNCTIONAL PERSPECTIVE 209
time and place" from Kohler.12 Pound likewise recog- B. CRITICISM OF LEGAL Posl'rlVISM
nized the influence of Rudolf von Jhering in the devel-
opment of his theory of interests and their classification Functional jurisprudence has two serious objec-
into individual interests, public interests, and social tions to the philosophy of legal positivism.
interest.1 3
The first deals with the view of the positivists that
35. REACTION TO IDEALIST AND there is no immediate or necessary connection bet-
POSITIVIST PERSPECTIVES ween law and morals. As stated before, this view
means that nothing is immoral that is legal. To the
Functional jurisprudence is a strong reaction to functional school of jurisprudence, this is a very dan-
the idealism of both the historical and teleological gerous idea. Even the qualifying adjectives "immediate"
perspectives of the nature of the law. It is also a dis- and "necessary" do not change the amoral nature of
approbation of the legal positivism of Thomas Hobbes the concept of legal positivism. According to Lon
and John Austin. Fuller, this view is still "an arrogant theory of law"
A. CRmCISM OF ABSTRACT VALUES because of its failure to relate law to morals. Julius
Stone is similarly minded. He stated that the separa-
For functionaljurisprudence. the perspectives of tion of law and morals in the philosophy of legal
the historical and teleological schools ofjurisprudence positivism "belongs neither to any actual society nor to
are impractical in the legal ordering of society. The any actual law. but a critique of law which has no
philosophy of the folksoul tends to stifle and isolate immediate concern for its goodness or badness."16
rather than stimulate and deepen the concept of the
legal order.14 On the other hand. the philosophy of This critique emphasizes the impotence of legal
the natural law is so abstract as to be of any real positivism to cope with the lawlessness of positive law.
value in the adjustment of conflicting or overlapping The critique also focuses attention to the perplexing
wants. especially as a tool in evaluating the question situation where a statute, rule or decision, no matter
of the validity of statutes even when they are not how far apart it may be from morals has to be treated
violative of any constitutional provisions. Roscoe as binding. Take. for instance, the deliberate separa-
Pound emphasized how important it is not to lay down tion of law and morals on the issue of the legalization
dogmatically an abstract scheme of universal law.1 5 of gambling. The carrot offered is a share of the in-
come of the gambling operations for public and private
l 2rouNo, R., IN'n:H1·H~:rA110Ns oF LE0/\1, H 1sToRY. 143. Harvard benefits and improvements. The question was pro-
Unlveif.llty Press. Cambridge. voked by the stand of the Mayor of the City of Manila
3pound, R., A Survey of Social Interests, 57 Harvard Law
Review, l.
to close down all gambling casinos within the city. In
14w~:rnm, M .. I.Aw 1N EcoNoMY AND Soc1E1Y, 67. 1belnsleln and
Shlls Translation. 20th Century Philosophy Serles, Harvard Unl-
verslly Press. Cambridge.
15p0 uN 0 , R.. IN'n:RPHKrA·noNs oF L~:CAL H 1sTORY. 147 . Harvard l 6STONE, J .• THE PRoviNCE AND FUNCTION OF LAw, 61. Associated
University Press, Cambridge. General Publications. Sydney.
LEGAL PHILOSOPHY
FUNCTIONAL PERSPECTIVE 211
210
politically organized society. IS Eugene Ehrlich ex-
a pastoral letter entitled "On the Morality and Immoral-
plained the importance of the relationship of the law
ity of Gambling," the public and the flock were exhorted,
with pragmatic etWcs. He stated that at all times the
for their guidance, that "gambling is lawful on three
center of gravity in the legal order is the interest of
conditions: 1) the stakes must belong to the ones that
society. not the "state norms" meaning legislation and
gamble. 2) there is no fraud involved. and 3) there is for
judicial decisions.
all approximately equal hope of winning and an equal
risk ofloslng." 17 Obviously. only the issue of the legality
36. RECOGNITION OF THE INTERESTS OF
of gambling was addressed. There was no effort at all SOCIETY
to address the moral issue involved. The guidelines hew
strictly to the positivist view that nothing is immoral In view of its reaction to legal philosophies formu-
that is legal. But should not the entire problem be lated in metaphysical and positivist contexts, the
considered in light of the Tenth Commandment which functional school of jurisprudence is drawn to a phi-
says. "thou shalt not covet they neighbor's house; thou losophy of social interests which seeks the adjust-
shalt not covet thy neighbor's wife. or his manservant. ment of conflicting or overlapping wants. that is to say
or his maidservant, or his ass, or anything that is thy claims, demands and expectations, whether asserted
neighbor's." It is clear that to "covet anything that is thy by individuals as such or by the public as such, with
neighbor's" means an inordinate desire or greed to the minimum of friction.
acquire or possess anytWng belonging to another.
notwithstanding the conditions mentioned in the pas- As an assertive individual, a person has a ten-
toral letter. dency to ignore the claims, demands and expect-
ations of others in the satisfaction of her or his own
Gustav Radbruch (1878- 1949) admitted that the wants. But as a rational individual, a person under-
emphasis on legal formality rather than the contents of stands the need to cooperate with the claims, demands
a statute, rule or decision had had a great deal to do and expectations of others in order to realize the
with the fall of Nazism in Hitler's Third Reich during the interests that are held in common. It is noteworthy
first half of the twentieth century. It became very easy that contemporary society is organized along lines
for German officials at that time to use the philosophy which make it difficult for an individual to attend to his
oflegal positivism as a convenient basis or tool to justify or her needs alone. By extension, it is also hard for a
and support Hitler's authoritarian state. group of individuals to exist independently of other
groups. No group of individuals is self-sufficient or
Tue second objection of functional jurisprudence self-contained as to be able to disregard others. Neither
to the philosophy of legal positivism is that it is not in can an individual nor group of individuals remain
touch with pragmatic ethics. that ls to say the social
interests as the highest good in the legal ordering of a
18poUNo. R., INrnooucnoN TO ntE PH1LOSOPHY OF LAw, 99. Yale
University Press, New Haven.
l 7verttas. No. l, February 5.1990. Emphasis supplied.
212 LEGAL PHILOSOPHY FuNc noNAL PERSPECTIVE 213

indifferent to the claims. demands and expectations of ficance would be fruitless. 20 The objective is the reali-
other individuals or groups of individuals without zation and achievement of the interests common to all.
inimical results to all. Thus. the relationships existing
between individual interests. public interests. and so- 37. CORE OF FUNCTIONAL JURISPRUDENCE
cial interests are so vital that social interdependence Certain observable facts in contemporary society
through similar or nearly similar claims. demands and are meaningful in the approach of functional juris-
expectations is well accepted. This is what Roscoe prudence to the problem of the nature of the law.
Pound means when he stated that "the individual needs These are: 1) the enormous amount of human wants.
the force of social control to keep the two sides of his that is to say claims, demands and expectations. 2) the
nature in balance." limited means at the disposal of the state in satisfy-
ing them, 3) the aggressive tendencies of individuals
Robert Hutchins, in commenting on the interac- and groups of individuals in the assertion of their
tion of the interests and purposes of the different wants or in the acquisition of some vantage positions
individuals and groups in the community. stated that for them. 4) the long drawn nature of the resulting
"the functional approach is an effort to follow the law conflicts of interests, and 5) the inability of the
in action. to find out the consequences of legal deci- legal order to fully recognize and satisfy the conflict-
sions on the social interests." 19 This means that the ing or overlapping interests at the same time.
legal order must proceed on the basis of an impartial
consideration of the claims. demands and expect- In view of these facts. the legal order is called upon
ations of the different groups in the community. In to decide which of the conflicting or overlapping inter-
effect. the interaction of the different individual inter- ests would have to be recognized and protected. which
ests and public interests has led functional jurispru- ones would have to be denied. and which ones would
dence to shift the emphasis in the legal order from the have to be postponed. Functional jurisprudence calls
interests of the individual to the interests of society. this process social engineering. To accomplish this
Thus, the drive of functional jurisprudence is to formidable task. it is necessary to identify the jural
return the conception of the law back to its social postulates of civilized society, work out a scheme of
content, from where the positivist school . had social interests on the basis of such jural postulates,
removed it. To put the matter differently'. functional and organize a minimum network of national policies
jurisprudence seeks to deepen the legal order along expressive . indica tive or suggestive of each social in-
the lines of the interests of society. Even John terest. All these - jural postulates of the civilization of
Salmond, a positivist jurisprudent. admitted that law time and pla ce. social interests. and na tlonal policies -
without regard and reference to its societal signi- would. then. s erve as unerring guides to the immediate
purposes of the legal order. thatis to say to the solution,

19ttutchins. R., Legal Education. 4 University of Chicago Law


20S A1.MOND. J .. JumsPnuo~:NcE, 10th Edition. Sweet & Maxwell,
Review, 357. London .

11
214 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 215

adjustment. or compromise of the conflicting or over- tions and legal precepts. It is the task of the
lapping interests. In particular. the legislator would jurist to ascertain and formulate the jural
acquire a clear view of the task of lawmaking, the judge postulates not of all civilizations but the civi-
would have a vivid image in locating. explaining and lization of the time and place ... and to seek
applying legal rules. and the jurist would have a keen to shape the legal materials that have come
sense of creative thinking.21 down to us so that they will express or give
effect to those postulates. 22
Dean Roscoe Pound emphasizes the core of func-
tional jurisprudence in this wise: Roscoe Pound stated that the underlying jural
postulates of a particular civilization are the reason-
Yet important as it is not to lay down able expectations or assumptions of the members of
dogmatically an abstract scheme of universal that society. In effect. they are the minimum require-
law, something more definite than a concep- ments or conditions for the survival of that society.23
tion of maintaining and furthering civilization
is needed for the immediate purpose of juris- Roscoe Pound ascertained and formulated the
prudence and legislation. The judge must jural postulates of civilized society. as follows:
have a more detailed picture in his mind to
guide him in finding legal rules. in interpreting First. in civilized society men must be
them and in applying them to the decision of able to assume that others will commit no
cases. The legislator must have a more detailed intentional aggression upon them. The cor-
picture to guide him in lawmaking. The jurist ollary of this is that one who intentionally
also must have a clear picture whereby to lay injures another is liable for damages unless
out the lines of creative as well as of ordering he can establish a legal privilege of acting as
and systematizing activity. It is well that ju- he did in accordance with some recognized
rist. at least. should recognize that it is but a social or public interest.
picture for use in the time and place and that Second. in civilized society men must be
his mind should be reasonably open with able to assume that they may control for
respect to the possibility of repainting it in beneficial purposes what they have discov-
whole or in part. Still he must have some ered and appropriated for their own use. what
such picture. and will be governed by one they have created by their own labor. and
whether he is aware of it or not .... The civil- what they have acquired under the existing
ization of every time and place has certain social and economic orders.
jural postulates - not rules of law but ideas
of right to be made effective by legal institu- 22PouNo R., op. cit., 147- 148. Ha1vard Univer sity Press.
Cambridge.
21PouNo, R.. INTERPRETATIONS m· LEGAL H1sroRY, 147. Harvard 23PoUND, R., AN lN"mooucnoN m niE P1-11wsor1-1v or LAw, 169- 170,
University Press. Cambridge. 188. Yale University Press, New Haven, Conn.
216 LEGAL PHILOSOPHY
FUNCTIONAL PERSPECrIVE 217

Third, in civilized society men must be Seventh, everyone is entitled to assume


able to assume that those with whom they deal that at least a standard human life will be
in the general intercourse of society will act assured him, not merely equal opportunities
in good faith, and hence. of providing or attaining it, but immediate
(a) will make good reasonable expecta- material satisfaction.
tions which their promises or other conduct
reasonably create, There is another underlying jural postulate that
(b) will carry out their undertakings has emerged for the survival of human life in society,
according to the expectations which the to wit:
moral sentiment of the community attaches Every person is entitled to assume that he
thereto, or she may perceive and feel the pleasures
(c) will restore specifically or by equiva- evoked by the beauty of nature, fine and
lent what comes to them by mistake or unan- performing arts. belles lettres, and music.
ticipated or not fully intended situations
whereby they receive at another's expense As stated before, Roscoe Pound saw that these
what they could not reasonably have ex- jural postulates would be meaningless without a con-
pected to receive in the circumstances. crete scheme of social interests. But if the jural
Fourth, in civilized society men must be postulates and the social interests are to serve as
able to assume that those who are engaged guides in the adjustment of conflicting or overlapping
in some course of conduct will act with due interests in order that the scarce goods and services
care not to cast an unreasonable risk of in- and the means of their distribution may be made to
jury to others. go as far as possible, there must be a minimum net-
work of national policies to give effect to such jural
Fifth, in civilized society men must be postulates and social interests.
able to assume that others who maintain
things likely to get out ofhand or to escape and Roscoe Pound formulated six classes of social
do damage will restrain them or keep them interests. But using the jural postulates as working
within their proper bounds. hypotheses, there are a few more social interests that
yield to identification.
Subsequently, Roscoe Pound advanced two more
jural postulates on the premise that the civilization- 38. ESSENTIAL FACTOR IN THE LEGAL
period is more or less complete. to wit: ORDERING OF SOCIETY

Sixth, everyone is entitled to assume that Functional jurisprudents are dismayed at the
burdens incident to life in society will be borne unimportance paid to thejural postulates. social inter-
by society. ests, and national policies in the social engineering of

:
218 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 219

conflicting or overlapping claims, demands and expec- demands and expectations in terms of the jural
tations. Since the legal order does not operate in postulates, social interests. and national policies
terms of legal concepts alone, functional jurispru- expressive or indicative of such jural postulates and
dence cannot seem to over-emphasize the fact that social interests.
jurists, legislators and executives are not to think
exclusively in terms of legal rights and legal obli- The technique of social engineering is to secure the
gations, important as these jural relations are in the jural postulates. social interests and national policies
legal ordering of society, but more importantly, in light not by absolute judgement but by avoiding the satisfac-
of the jural postulates. social interest and national tion ofone competing interest at the total expense ofthe
policies too. They must be reasonably open to the role other whenever possible. 25 Roscoe Pound expressed it
played by the jural postulates, social interests and as follows:
national policies in the legal order. Together they set But I am skeptical as to the possibility of
the tone and direction of the legal order. an absolute judgement. We are confronted at
this point by a fundamental question of social
39. FUNCTIONAL CONCEPT OF LAW political philosophy. I do not b elieve that the
The functional school of jurisprudence views the jurist has to do more than recognize the
law as a specialized form of social control for the problem and perceive that it is presented t o
solution, adjustment. or, if no better can be done, him as one of securing all social interests as
compromise of conflicting or overlapping claims, de- far as he may. of maintaining harmony among
mands and expectations to secure as much as may be them that is compatible with the securing of
pos"sible the social interests with the minimum of all of them. 26
friction.24
Therefore, whenever possible, a balance. no matter
As stated before, historical jurisprudence weighs how delicate the compromise might be. must be made
the competing wants in terms of the volksgeist or whenever the conflicting or overlapping claims, demands
diwayan. The teleological school of jurisprudence and expectations cannot properly receive simulta-
would rather resolve the conflicting wants on the neous recognition or protection. 27
basis of the precepts of the natural law. The positivist
school of jurisprudence insists that the conflicting The adjustment of conflicting or overlapping
wants be resolved on the basis oflegal positivism. The interests is dictated by two factors: l) preventing or
functional school of jurisprudence is content to minimizing further conflicts. and 2) balancing or com-
resolve, adjust. or compromise the conflicts of claims,
25PoUND, R., INTRODUCTION TO 11-lE PHILOSOPHY OF LAw, 99. Yale
University Press. New Haven.
24pOUND, R., INIBRPRETATIONSOF LEGAL HISTORY. 11 7, 156. Harvard 26/bld., 96.
University Press, Cambridge: AN INTRODUCTION TO 11-lE PH1LOSOPHY OF 2 7 Cf Lagunzad v. Gonzales, 92 SCRA 4 76.
l..Aw, 89. Ya l e University Press, N ew Haven.
220 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 221

promising conflicting interests to guarantee social it in the supra positive law of the teleological school of
equilibrium. The social reality of these factors is that jurisprudence, nor in the folksoul of the historical
the solution reached is more lasting and enduring than school of jurisprudence. In functional jurisprudence,
when one competing interest is allowed to survive the the sanction of social engineering is always in the jural
conflict at the total expense of the other. postulates, the social interests, and the national poli-
cies. In other words, the adjustment of conflicting or
But conflicting or overlapping interests cannot overlapping interests is done at the point where it will
always be compromised. There are situations when serve the jural postulates, implement the social inter-
one interest has to give way to another. Since the ests, and express the national policies.
weights used in the adjudicative scale is simply not
fine enough to accurately balance the conflicting or 40. PRESENTATION OF CONFLICTING
overlapping interests. social engineering requires that OR OVERLAPPING INTERESTS
the surviving interest be recognized only after There are pitfalls that the organs of government
divesting it of its objectionable or unacceptable must guard against at all times in weighing or valuing
aspects. Here lies the genius. of social engineertng. conflicting or overlapping interests. If these dangers
Julius Stone was so convinced of its efficaciousness are not addressed, the legal ordering will suffer.
that he was moved to call it "the judgement of
justice." The responsibility and interest of the state The first is the manner in which the conflicting or
in the exercise of its power of eminent domain provides overlapping interests are presented for adjudication.
a good illustration. To balance the scale accurately. Not every claim, demand or expectation is necessarily
the private property to be sacrificed must be justly classified as either individual or public interest. 28
compensated and only so much thereof that is neces- When conflicting or overlapping wants are presented
sary for the public purposes of the state should be for the purpose of adjustment great care should be
taken. taken in order that claims, demands or expectations
belonging to the same class are not stated or presented
Once an interest is recognized it is then protected in unequal terms or levels. Social engineering requires
by the legal order either as a legal authority, viz.. a that the conflicting or overlapping interests must be
legal claim or a legal power, or as a legal exemption. viz.• stated or presented on the same plane whenever this is
a legal privilege or a legal immunity. The subor- the case. Only through this process would legislative,
dinate interest. on the other hand, responds either as executive and adjudicative decisions be considered
a legal responsibility, viz., a legal duty or a legal liability, reasonable. Otherwise, Dean Pound states that "the
or as a legal debility. viz.. a legal inability or a legal
disability.
28pound, R, A Survey of Socatl Interests. 57 Harvard Law
Thus, the sanction of social engineering is no Review, 1. This paper is a revision of an earlier study made by Pound
longer in the command of the sovereign as the posi- entitled A Theory of Social Interests, 15 Papers and Proceedings of
the American Sociological Society, 16.
tivist school of jurisprudence would have it, neither is
222 LEGAL Pt-IILOSOPHY FuNcnONAL PERSPECTIVE 223

question may be decided in advance by the very act of post-audit of the case after Dr. Peters had been
putting it," which would be disastrous. Pound was also cleared twice by an agency board and when nobody
concerned that when a claim, demand or expectation is appealed therefrom. 30 Dr. Peter's lawyer argued that in
presented as an individual interest and the competing the federal loyalty proceedings, which is a process of
claim. demand or expectation wrongly presented as a trial and condemnation. the constitutional right of
public or social interest. then the statement of the the accused to due process of law was violated be-
question may leave nothing to decide, which would be cause the accused did not see the report of the Federal
equally unfortunate. Bureau of Investigation or confront and cross-examine
the informants against him.31 In a word, the proceed-
A presentation in the proper manner is exem- ings was secret. This contention of the defense
plified in the case of Lochner v. New York.29 Justice counsel is not itself without bias. While it was a
Peckham presented the conflicting individual and proceeding of some sort involving trial and condemn-
public interests involved in the case as follows: ation. it was really a security procedure. The brief for
the government reduced the problem to a calibration
It becomes of great importance to deter-
and balancing of interest between protection of the
mine which shall prevail - the right of the
individual to labor for such time as he may individual interest and the social interest in the area
of national security. Obviously, the government's
choose, or the right of the state to prevent the
statement or presentation of the problem is quite
individual from entering into any contract to
uneven. It was the government's contention that
labor beyond a certain time prescribed by the
"disclosure of . . . confidential sources would not only
state.
imperil the employer's security program but also en-
An example of a biased presentation of conflict- danger the effective functioning of investigative agen-
ing interests is provided in the brief filed by the govern- cies in the espionage and sabotage fields.
ment counsel in the appeal taken to the Supreme
Court of the United States by John Punnet Peters. In cases where an uneven presentation of the
Dr. Peters. senior professor of medicine at Yale Uni- competing interests in made, courts have the responsi-
versity, on detail as a medical consultant to the bility of freeing themselves from such bias. In the
Department of Health, Education and Welfare, was situation considered above. the Court did so by viewing
previously found by the Loyalty Review Board to be a the conflicting interests as the inescapable dilemma
security risk and that his loyalty to the government either to continue in government a person whose
was doubtful. This finding was based on evidence loyalty is reasonably suspect or else reveal publicly the
coming from unsworn witnesses whom Dr. Peters
had no opportunity to confront or cross-examine. The 30Peters v. Hobby, 349 U.S. 331. The Supreme Court reversed
ruling was issued by the Loyalty Review Board on a the Loyalty Review Board on the ground that It exceeded its powers
in initiating further proceedings after a lower agency board Inves-
tigation had cleared the petitioner.
29198 U .S. 45. 31349 U.S. 331.
224 LEGAL PHILOSOPHY
FUNCTIONAL PERSPECTIVE 225
methods by which such disloyalty is detected and the In the perspective of individualist utilitarianism,
names of the persons who may venture their assist- the question deals with the tendency of the prevailing
ance.32 interest to cause either pleasure Uustice) or pain (injus-
tice) to the greatest number in the community. The
The second danger to be guarded against is the problem with this test is the difficulty of calibrating the
simplicity of expediency. It is easier to get things done hedonistic calculus for it is not free from personal
by simply putting a claim, demand or expectation in equation either. In the tradition of social utilitarian-
terms of a social interest when actually it may only ism, the question has to do with the realization of the
involve a competing individual interest or a competing end of the law in terms of social advantage. Thus, the
public interest. or competing individual and public test here is how far the prevailing interest would
interests. Putting it differently, the yaluation of the inure to the advantage ofsociety or fulfill the conditions
conflicting or overlapping interests should be stated of social life. The criticism against this test is the
in terms of what they really are. There should be no difficulty of identifying the point where a competing
upgrading or downgrading. The reason for this ts that interest concurs with the social advantage.
in social engineering the solution, adjustment. or
compromise is keyed to the jural postulates. social In functional jurisprudence, the social interests
interests and national policies with the minimum of are quite important in weighing the relative value of
friction between the competing interests. the competing interests. The tendency of an interest to
promote the scheme of social interests has a higher
41. RELATIVE WEIGHT OF COMPETING value. Thus. interests which are low in the scheme of
INTERESTS social interests naturally receive limited protection
In teleological jurisprudence, the question is how from the legal order. And interests exercised or pur-
far the precepts of the natural law can be served if and sued in defiance or in violation of the social interests
when a competing interest is allowed to survive. As are not recognized at all. This recognizes the fact that
stated before, the difficulty with the axiological test it would be fatal to the legal order if the social
is that it is not free from personal preferences and interests were the ones sacrificed in the adjustment of
even prejudices. competing or overlapping claims, demands and ex-
pectations.

Existence in a politically organized society re-


32349 U.S. 331. The Supreme Court of the United States
simply ruled that the action of the Loyalty Review Board, in quires concessions from private and public interests
determining that there was a reasonable doubt as to Peters' loyalty in favor of the greater social interests. A conspicuous
after he had been iwlce cleared by the board, was in excess of its illustration is the usual preference given to the social
delegated jurtscliction since it could deal only with appeals from interest in the stability and solidity of the state over
adverse decisions. But the Court refused to answer Peters' consti- the interest, for instance, of an individual in .h.is prop-
tutional objection on the ground that the Executive Order establish-
ing the Loyalty Review Board was not In issue. erty. This is exemplified by the well-known principle of
226 LEGAL PHILOSOPHY FuNCTIONAL PERSPECfIVE
227
eminent domain. Another illustration, though less interests. and implement the national policies. And it
conspicuous. is the importance of the social interest in is safe to say that even the detractors of "public policy"
the economic progress which strongly sways the bal- did not intend to do away with it simply because it is "a
ancing process in favor of public enterprise to such an very unruly horse." The point is to tame it. According
extent that even damages to other property owners. as to Roscoe Pound, "it is important to recognize what
a result of its operations, would be regarded as non- we are doing in law and why we are doing it ... [and] a
compensable. Functionally speaking, the social first step in this direction must be to ... construct a
interests in the maintainance of economic progress theory of social interest which the courts may use,
supports the rule that railroad companies, for ins- just as in the past they have used the scheme of
tance. are not liable to owners of properties abutting individual interests which we call theories of natural
railroad tracks for noise, vibration and smoke inci- rights." In another work, Pound stated that while
dent to the operation. For the same reason, the conflict "books are full of schemes of natural rights there is
of interests between a property owner and an airport no adequate scheme of public policies."
enterprise is resolved in the latter's favor. 33 but not in
cases of negligent operation of airport facilities and Justice Jose P. Laurel of the Supreme Court of
equipment. 34 Another illustration is the preference the Philippines also directed attention to the reality of
for the social interest in human personality and social interests and public policies in the legal order-
dignity over the enforcement of an agreement where ing of society. In the case of Gabriel v. Monte de
there is claim of servile nature. Piedad, 3 6 Justice Laurel stated that a court in order to
declare a contract void must find that the contract . . .
42. SOCIALINTERESTSAND contravenes some social interest or national policy.
NATIONAL POLICIES Justice Benjamin N. Cardozo of the Supreme Court of
It was Justice Burrough who circulated the idea the United States also asserted that "the analysis of
that the term "public policy" or "national policy" carries social interests and their relative importance is one of
no precise definition and forthwith described it as "a the clues that the lawgiver and the judge must utilize
very unruly horse pursuing us. and when once you in the solution of their problems." And Justice Oliver
get astride it you never know where it will carry Wendell Holmes added the great authority of his
you."35 In functional jurisprudence. the goal is certain. learning when he stated in Vegelahn V. Guntner,37 that
It is to serve the jural postulates. express the social "the true grounds of decisions are consideration of
policy and social advantage, and it is vain to suppose
that solutions can be attained merely by logic and the
33Hunter, R., TheConjlfcttng Interests ofAtrport OwnerNearby general propositions of law which nobody disputes."
Property Owners. 11 Law and Contemporary Problems. 539.
34Untted States v. Causby, 328 U.S . 256, 66 S .Ct. 1062, 90
L.Ed. 1206.
35mchardson v. Mellish. 2 Bing. 229; Story v. First National 3671 Phil. 497.
Bank. 155 Fla. 436, 156 S. 101 . 37167 Mass. 92.
228 LEGAL PHILOSOPHY FUNCTIONAL PERSPFA:TrVE 229
These jurisprudents are in agreement that social choice of the rule applicable to the case, the court
interests are not abstract propositions and that na- stressed the importance of protecting the social inter-
tional policies are not unruly horses. Holmes, Cardozo ests in the general health and held that there was
and Laurel feel strongly that a politically organized indeed an implied warranty.
society must have a jurisprudence of social interests
and national policies to guide the legal ordering of In the De Los Santos case, the administratrix: of
society. It is a mistake to downgrade social interests as the estate of a homesteader sued to recover the home-
mere references to public welfare without any settled stead previously sold to the defendant. The Supreme
meaning or standard to guide legislative, executive and Court was faced with the problem of whether it
adjudicative decisions. 38 Social interests can be of should apply the principle of pari deliclo in view of the
fruitful application in the legal orderi11g of society, and fact that the sale was made. with apparent know-
the latter would be better off if an act or conduct which ledge of its illegality, in favor of the defendant Roman
is against some social interests were not recognized and Catholic Church of Midsayap. which was not un-
enforced. Indeed, courts have not hesitated in declar- aware of the fact that the land was being sold within
ing contracts void, which. though not contrary to ar · the prohibited period of five years following the issu-
existing statute. are regarded as "having anti-social ance of the homestead patent.42 The Court observed
tendencies. "39 that the principle of pari delicto has been applied in
cases where both parties were aware of the illegality
Such a use of the social interest and national of the transaction and that ordinarily suits to recover
policy was demonstrated in Cushing v. Rodman. 40 and would not prosper and the land sold would then
De Los Santos v. Roman Catholic Church of Midsayap4 1 revert to the state by virtue of the provision of Section
124 of the Public Land Law. But the Court doubted
In the Cushing case. the question is whether an the application of the principle of pari delicto. The Court
implied warranty of wholesomeness exists upon food observed that "it is not within the competence of any
served for a consideration or price and for immediate citizen to barter away what public policy seeks to
consumption within the seller's premises, the defect of preserve." Thus, recovery was allowed.
which was not visible. In resolving the problem. the
court found itself put to a hard choice between the However, it should be added that in general
sharp divisions of views on the matter by courts and practice policy makers. courts and government func-
jurists both entitled to respect. But in making the tionaries. in weighing conflicting or overlapping inter-

38People u. Rosenthal. 68 Phil. 328.


42Sec. 118 of the Public Land Law (Commonwealth Act No.
39Lloyd. D .. Law and Public Policy. CURRENT LEGAL PROBLEMS. 141) provides, In part, that the lands acquired under free patent or
Edited by Keeton and Schwarzenberger, 49. Stevens & Sons, homestead shall not be encumbered or alienated within a period of
London. five years from and after the Issuance of the patent or grant except
4082 F.2d. 864. In favor of the Government nor shall they become liable to satisfy
4lc.R. No. L-6088, 50 0.G. 1588. any debt contracted prior to the expiration of said period.
230 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 231

ests, have only made some trite or vague observation policies. From this arises the other presumption that
that a particular interest cannot be recognized and the legislative body intended right and justice to prevail
enforced because it is against public policy- period. in case of doubt in the interpretation or application of
There is really no effort to identify the social interests its enactments. 47
and the national policies involved in the solution,
adjustment, or reconciliation of the competing or But social interests and national policies are also
overlapping interests involved. It is, thus, a very awk- molded by varying influences which lie outside the
ward way of utilizing the social interests and national domain of the law. Social interests do change as
policies relevant to the case. as if they were something economic, political, and legal situations and ideas
to be ashamed of. 43 change even as the community itself changes its con-
cepts and institutions. 48
A. EXTRA-LEGAL FACTORS
B. TYPES OF INTERESTS
Looked at functionally and with an eye to its end.
the law is not self-sufficient. Roscoe Pound believes The conflicting or overlapping claims. demands
that the law cannot be dissociated from pragmatic and expectations of people living in a politically organ-
ethics, that is to say social interests as the highest ized society appear as individual interests or public
good. 44 There is, therefore, need to postulate the ethic- interests.
al factor to the behavior element. Hence, social inter-
ests and national policies abide in the common con- An individual interest. according to Roscoe Pound.
sciousness of what is "naturally and inherently just is a claim, demand. or expectation involved in or looked
and right between man and man ... [giving regard to] at from the standpoint of individual life immediately as
the primary principles of equity and justice and . . . such. Pound classifies individual interests into three
sometimes expressed in the title of social justice...45 groups. namely. interests of personality, domestic in-
This shows not only what the law does but also what terests. and interests of substance. Pound explains
it can do for society.46 Thus, the presumption arises that claims. demands and expectations in personality
that the legislative body intended its enactments to be may either be physical. e.g.• freedom of expression.
in accordance with the social interests and national personal reputation. right to privacy. or it may be
spiritual. e.g.• freedom ofreligion. freedom of worship.
43poUNo R., INTERPRETATIONS OF LEGAL H1sroRY, 167. Cf dissent- Insofar as domestic interests are concerned. Roscoe
ing opinion In Arizona Copper Co. v. Hammer, 250 U.S. 433, 39 S . Pound refers to claims. demands or expectations
Ct. 553, 63 L.Ed. 1058. involved in marriage and family relations. With respect
44poUNo, R., SocIAL CONTROL THROUGH Ll\w, 62. Yale University to interests in substance. Pound held this to mean
Press, New Haven.
claims, demands or expectations which have to do with
:~Sipes v. McGhee, 316 Mich. 614, 25 N.W. 2d 638.
Pound, R.. My PhUosophy of Law in MY Pt-11LOSOPHY OF Ll\w,
Credo of Sixteen American Scholars, 252. Boston Book Company. 4 7 Article 10, Civil Code of the Philippines.
Boston.
48people v. Collins. 9 Cal. App. 623.
232 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 233
economic situations. e.g., property rights, freedom of C. MEANS OF SECURING PRrvATE INTERESTS
industry, freedom of contract.
There are ways and means of protecting indi-
Roscoe Pound explains that public interests are vidual interests.
claims, demands or expectations asserted by the
public as a distinct juristic entity concerning the The first is the postulation of the concept of civil
personality, integrity and continuity of the state. personality. In both natural and moral laws, civil
personality is distinguished from human personality.
Social interests. according to Roscoe Pound, are The former is law given. and, therefore, an artificial or
claims, demands or expectations asserted by the legal attribute of a human being. On the other hand.
entire society as such for the promotion and protection human personality is God given, and, thus, an inde-
of the social welfare. Pound explains that a social lible mark of natura human.a which refers to a person's
interest is asserted de facto as a strong popular ground capacity for moral experience. religious experience,
swell impressed with its immediate urgency."49 Lord intellectual experience, and aesthetic experience. In
Wright agreed by stating that a social interest is the terms of civil personality, a person, for example, is
concern of everybody for it is. as it were, the com- either legitimate or illegitimate. No such distinction
munity conscience. 50 exists in terms of human personality.

On the other hand. a national policy is a basic Civil or legal personality as a concept has two
manifestation, expression. or valuation of some social essential attributes: 1) the fitness to be the subject of
interest. As such, it is called "the policy of the social jural relations, and 2) the faculty of doing or not doing
interest" and is as jussive as the latter. Both social something with definite legal effects and conse-
interest and national policy are barriers to other quences. Without touching on the circumstances
types of interests if and when the latter are irreconcil- affecting civil personality, the legal order attributes
able with the former. Thus. the bottom line is that civil personality to some or to all persons and to certain
individual and. public interests are subject to or institutions or corporations. For the protection of
tested by the social interests and national policies. It individual interests. the attributes of civil personality
follows that social interests and national policies do is extended by the legal order in two different
not mean the mere keeping of the public order, as, directions: 1) pre facto extension of civil personality,
sometimes, they are narrowly interpreted to be. 5l that is to say before the fact of live birth but not
beyond the time of conception, and 2) postfacto ex-
tension of civil personality. that is to say after the fact
49PoUND, R., III Jurus PRUDENCE, 270. West Publishing Co., SL of death.
Paul, Minn.
50LoRD WRIGHT, LEGAL EssAYS AND ADDRESSES, 68.
51 Ferrazzini v. Gzell, 34 Phil. 697, 709. In this connection, The second means of protecting individual inter-
Articles 6, 11, 12 and 1306 of the Civil Code of the Philippines are ests is by conferring upon persons or institutions on
slgnlflcant as to the use of the term national policy. whom civil personality has been attributed certain
234 LEGAL PHILOSOPHY FuNCTIONAL PERSPECTIVE 235
legal authorities, vtz., legal claims and legal powers. as elsewhere in this chapter, the legal order does not
well as certain legal exemptions, viz., legal privileges create these social interests. The social interests have
and legal immunities. been asserted de facto by the jural postulates of the
kultu.r or advancemeqt in the civilization of a parti-
The third is by imposing upon persons or institu- cular society or people. 53 Thus, the legal order finds
tions on whom civil personality has been attributed these interests pressing for recognition and protec-
certain legal responsibilities, viz., legal duties (which tion. The legal order has to deal with them because
are the correlative of legal claims) and legal liabilities they have become the concerns of society.
(which are the correlative of legal powers), as well as
certain legal debilities, viz., legal inabilities (which are There ls no hierarchy of social interests intended
the correlative of legal privileges) and legal disabilities by functional jurisprudence. However, the social
(which are the correlative of legal immunities). 52 interests in the protection of human personality and
dignity has been recognized as indispensable for the
D. MEANS OF SECURING PuBLIC INTERESTS existence of ordered liberty.
There are several identifiable ways in which
The protection of the social interests is a continu-
public interests are secured. First, the conferment of
ing task in the legal order. It is both the right and the
juristic personality on the state and other corpora-
obligation of the legal order to preseive and imple-
tions. Second, the grant of certain rights to the state ment them. 54
and other corporations. Third, the imposition on the
members of society of the correlative obligations
A SocIAL lNTERESf IN THE GENERAL SECURITY
of the rights granted to the state and other corpo-
rations. Fourth, the recognition of certain processes General security has become an object of
for the vindication of the social interests. e.g., the legal human interest, for the sake of humanity itself. In a
power of a citizen or the government to initiate quo politically organized society, there are four aspects of
warranto proce.e ding against another for usurpation social living involved in this particular form of social
of public office, the legal privilege of a person to criti- interest. namely, safety, comfort. order, and peace.
cize public personalities and public acts. and the legal But the concerns in these areas of social living is no
power of the state as parens patri.ae to proceed longer exclusively oriented to the interest in individual
against violators of the social interests.

43. CATEGORIES OF SOCIAL INTERESTS 53PoUNo. R., III JurusmuoENcE, 21, 270. West Publishing Co.,
St. Paul, Minn.
There are presently ten interests that have im- 54nie outline scheme used here is based on the essential
pressed society as a whole of their urgency. As stated features of the survey and analysis of Dean Roscoe Pound. The
other classes of social Interests as well as the enumeration of the
national policies are the sole responsibility of the writer of this
5 2 See pages 395-398, lrifra. volume.
236 LEGAL PHILOSOPI IY FUNCTIONAL PERSPECfIVE 237

security. as advocated by the nineteenth century phi- 6. The policy against acts and practices
losophers and jurisprudents. but in the context of the depriving courts of justice of the jurisdiction and
interest in the general security.55 This is emphasized function ordinarily pertaining to them as well as
by the Supreme Court of the Philippines in the case of the power to enforce their judgments and orders.
Republic of the Philippines v. Baylosis, 56 that it is im-
portant to hold in check those forms of acts and 7. The policy exempting government officials
practices which threaten the social interest in the and functionaries whether of inferior or superior
general security vis-a -vis the assertive tendencies of competence from civil liability for acts done by
individuals to secure dominance for their individual or them in good faith in the performance of their
private interests. official functions and jurisdiction.
8. The policy concerning the provision of
This social interest is thus based on the concern of adequate remedy for injuries suffered as a result
the entire social group against those forms of actions of illegal acts and practices of government func-
and courses of conduct which threaten or are harmful tionaries.
to the comfort. peace, safety. and order of the commu-
9. The policy concerning accessibility to
nity. It is expressed or signified by the following
governmental records under reasonable regula-
national policies:
tions for proper purposes.
1. The policy concerning certainty of laws 10. The policy against acts and practices
and the public knowledge and awareness of them. promotive of or tending to promote speculation and
profiteering in the essential goods of existence or
2 . The policy concerning the establish- staple commodities.
ment and maintenance of impartial courts and
tribunals. 11. The policy concerning the free and unob-
structed access to courts for maintaining or de-
3. The policy concerning uniformity in fending actions or suits.
judicial and administrative processes and the im-
personal and orderly administration of justice. 12. The policy concerning the simplification,
economizing and expediting of the judicial and
4. The policy that no one shall be unlaw-
administrative processes.
fully deprived of life. liberty and property.
13. The policy concerning the prosecution of
5. The policy against acts and practices in offenses either at the initiative of the state or the
violation of the security of transactions and ac- complaining witnesses.
quisitions.
14. The policy concerning the freedom from
55PouNo, R., lllJurusPHUDENCE, 291. West Publishing Company,
arrest of the head of state as well as the freedom
St. Paul Minn. of the members of the legislative body during
56g6 Phil. 461 . their attendance at the sessions.
238 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 239
B. Socw.. INTEREST IN THE MAINTENANCE AND 4. The policy concerning the encouragement and
PROTFX:TION OF SocIAL INsrrrtmONS fostering of congenial family relationships and
The basts of this particular interest is social enlightened separation and divorce proceed-
solidarity. The stability and strength of society depends ings.
on the interaction of the domestic, religious, political. 5. The policy concerning adequate and afford-
and economic institutions. These social institutions able housing for indigents and low income
are the schools where virtues are learned. Without groups.
them, society would fail and disintegrate.
6. The policy concerning the inherent right of
parents in the rearing of their children for
This particular social interest ts based on the family and civic privileges and duties.
concern of the entire social group that the basic insti-
tu tlons of society are secured and fortified against acts 7. The policy concerning the nursing and care of
and practices which threaten their existence and children whose mothers are employed out-
functions. 57 side the home.
8. The policy concerning the prevention of
(1) Dome1tlc In1tltutlons actions or suits by members of the family
The concern of the people in the solidarity of the against one another.
domestic institutions is expressed or indicated by the 9. The policy concerning the freedom of abode or
following national policies: of a reserved area of privacy and of changing
the same.
1. The policy concerning the protection of the
institution of marrtage·and against unreason- IO, The policy concerning the security of houses,
able restraints on marriage as well as different papers, and effects from unreasonable
standards for the parties in marriage. searches and seizures.
2. The policy concerning the free choice and mu- (2) Religious Institution
tual respect and support of those involved in
mai-rtage relations. One of the human faculties is the capacity for
religious experience. Human beings are not self-suffi-
3. The policy concerning the use of natural and cient. They depend on others for certain things in life.
artillctal means of family planning based on But they are uniquely self-conscious. One of the
ethical considerations and practiced with com- projections of this human faculty is the never ending
plete respect for human life. search for relationship with the spiritual power that
accounts for the perfection of the universe. Human
57PoUNo, R., III JurusPRuD~NCE. 296. West Publishing Co., St.
beings recognize a power greater than themselves.
Paul, Minn. This is the essence of human faith. It is this innate
240 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 241
capacity that satisfies the need to be in accord with 7. The policy concerning the cooperation between
such spiritual power, ever bringing them closer to it. the state and the church as free institutions.
8. The policy concerning the mutual or reciprocal
The concern in the stability and solidity of the independence of church and state as well as
religious institution is expressed or manifested by the neutrality of the state or government in purely
following national policies: religious matters.
1. The policy concerning the freedom of everyone 9. The policy against the recognition or establish-
to pay reverence to the object of their worship ment of a religion or state-supported religion or
and to worship in the traditions and practices of anything that could lead to such.
their religion.
10. The policy concerning equal liberty, right and
2. The policy concerning the right to join or not to standing for all religious groups.
join others in an organized religious group or
connection, whether on a national or ecumeni- 11. The policy concerning the freedom of religious
cal level. groups to have and maintain their ministry and
to determine conditions of membership.
3. The policy concerning the right of everyone to
teach and propagate, whether publicly or pri- 12. The policy against acts and practices that pre-
vately. religious beliefs and tenets to every will- scribe and impose what shall be deemed ortho-
ing person for the purpose of persuasion, com- dox in religious doctrine and constrain any-
mitment, and conversion. one to confess by word or by deed belief
therein.
4. The policy concerning the freedom of any reli-
gious group to support it-s activities and services, (3) Political Institution
collect funds and own property for the exclusive
use and conduct of such religious and related The concern in the stability and solidity of the
work. political institution is an ancient interest of people
living in a politically organized society. Aristotle
5. The policy against acts and practices committed characterized human beings as social by nature. They
with intent to destroy. in whole or in part, any cannot live except in the company of others. This
religious group as such, whether by physical they have to do and to enjoy it they have to give up
means or by the prescription or imposition of certain claims, demands and even expectations for the
what shall be deemed orthodox or unorthodox good of all. The realization of the common good is a
in matters of faith. creed. sacraments. and vital function of the legal order. Hegel rationalized
religious practice. this concept in his dialectic process of the family
,. 6. The policy concerning religion as a voluntary (thesis), the civil society (antithesis). and the state
and private trait and not as a means to increase (synthesis). This concern or interest is expressed or
nor diminish civil capacities.
LEGAL PHILOSOPHY
FUNCTIONAL PERSPECTIVE 243
242
indicated by the following national policies: 10. The policy against acts and practices promo-
tive of crime and violation of laws and
1. The policy concerning the maintenance of the loyalties.
national and territorial integrity of the state. 11. The policy concerning the inherent right of
2. The policy concerning the immunity of the state the state to prevent clandestine and conspirato-
in its public and governmental character from rial acts and utterances which are in derog-
actions or suits by private individuals without ation of the general welfare as well as those
its consent. which may bring about the danger of their
occurrence.
3. The policy concerning the extension of aid and
support by the state in the rearing of the youth 12. The policy against acts and practices that de-
for civic consciousness and efficiency. stroy or hinder the maintenance of the balance
of political opposition.
4. The policy concerning the proper and guarded
grant of citizenship. 13. The policy concerning the mutual or reciprocal
independence of church and state as well as the
5. The policy concerning the inclusion of the largest neutrality of the state in purely religious mat-
possible number of the whole citizenry in the ters.
electorate and the dissemination of the impor-
tance of the duty to vote. 14. The policy against acts and practices that pre-
scribe or impose what shall be deemed sound
6. The policy concerning the proper distribution and approved in politics and political doctrine
and separation of powers and functions of gov- and force anyone to believe in them.
ernment and their relative independence from
one another. 15. The policy concerning the security of tenure of
7. The policy concerning the limited and well- the judges of the land with retirement age fixed
defined delegation of legislative power as to by law.
extent. purpose and period.
(4) Economic Institution
8. The policy concerning obedience to the laws of The present-day conditions in civilized society
the country in which a person is actually
present. warrant the recognition given to the economic institu-
tion as separate and distinct from the other forms of
9. The policy against acts and practices tending to social institutions. The responsibility of the legal order
disturb the performance and administration of to develop and implement sound economic goals and
the public duties of public officials and func- programs must be recognized in order to ensure the
tionaries. economic life of the members of society. The concern
in the stability and solidity of the economic institution
244 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 245

is expressed or indicated by the following national 9. The policy against unfair trade and labor prac-
policies: tices leading to intense and ruinous competition.

1. The policy against acts and practices promotive 10. The policy concerning the maintenance of a
of monopoly and the encouragement of free and high employment level.
natural competition.
11. The policy concerning the provision of ade-
2. The policy concerning the adoption of agricul- quate marketing facilities and the proper free-
tural and industrial economic combination dom to market one's products or labor.
geared to consumer preferences and enhanced
quality of life. 12. The policy concerning the privilege to withdraw
3. The policy concerning the maintenance of an from. or to form. assist. or join any professional
orderly market for both public and private secu- association or labor union.
rities and the scientific regulation of both pri-
vate and public credit. 13. The policy concerning the stability, certainty
and security of transactions and acquisitions in
4. The policy concerning reasonable deposit and commercial dealings.
lending rates on the basis of supply and demand
as well as priority and risk involved. 14. The policy concerning provisions for adequate
5. The policy concerning the limited and well- and proper safeguards to avoid inflationary
ordered grant of concessions for the diversifica- trends and jolting deflationary tendencies.
tion and improvement of the economy.
15. The policy concerning the keeping of value of
6. The policy concerning the freedom to choose money steady or approximately steady and
and engage in any profession. employment. against constant adjustments in its worth and
trade, vocation, or craft and to receive adequate value.
remuneration.
7. The policy concerning the freedom to own. hold, 16. The policy concerning provisions for building
use. consume. control. and transfer property and maintaining adequate international
and rights in property. money reserves through increased export
earnings.
8. The policy concerning the freedom to engage in
commercial. business. industrial. and agricul-
17. The policy concerning the orderly development
tural pursuits. except in institutions closely and
of the agricultural economy as well as the
essentially related to the national defense and
development of the manufacturing industry
the public governmental activities. with the raw materials and resources available.

246 "LEGAL PHILOSOPHY FUNCTIONAL PERSPF.CTIVE 247

18. The policy against rules and regulations tending without still having the e~sential counsels and truths
to paralyze business initiative and choice or of moral law to light its path and guide its steps as in the
deny legitimate profit motive. past." General morality or the moral ethics of the
community is a very present fact of social life, although
19. The policy for reasonable hours of work, for just it may not be necessarily the best morality.
compensation and working conditions, and for
the equitable sharing of profits. . Thus. both individual and society have a right to be
20. The policy against acts and practices that pre- protected from obscene or indecent activities and ma-
scribe and impose what shall be deemed valid terials in the different medium of expression.
and correct in economics and force anyone to
accept or rely on them. The terms obscene and indecent are difficult to
define. However, there is a three-pronged standard to
C. SocIAL INTEREST IN THE GENERAL MORALS test whether or not an act or material is obscene or
indecent. Does the act or material depict conduct in a
There are four distinct but co-ordinate dimensions patently offensive way? In other words, is the sole aim
of natura humana (avoiding the ambiguity of the com-
of the act or material to excite the libido or to sustain
mon term "human nature" as weak and depraved on lascivious thoughts and desires. Does the act or
the basis of Augustine's theology of the reality of sin). material lack redeeming social value, that is to say
They are the ca pacity for ethical experience, the capacity unconcerned with socio-moral problems and their so-
for intellectual experience, the capacity for religious lutions? Does the act or material.violate the generally
experience, and the capacity for aesthetic experi-
accepted moral sense of the community?
ence. As a whole, these unique faculties constitute a
person's rational soul which he or she does not share
The third aspect of the standard presents some
with plants and animals. The latter possess only a
problems. One, is the ascertainment of the contempo-
nutritive soul. 58
rary moral sense of the community or society. The
second deals with the question of whose opinion in a
Since a person is considered as an individual pluralistic society or community must be consulted. In
moral unit, then the community or society composed of this connection, is the deciding official entitled to
individual persons is considered as a general moral consider himself or herself as the moral vane of the
unit. Thus, Arnold Toynbee could say that "if it is community or society. If not. what must the deciding
conceivable for a world of human beings to exist in official do to arrive at the answer to the first problem.
which the living higher religions had become extinct it The third has to do with the guiding principles that
would be quite hard to imagine human existence must be considered in the search for the correct solu-
tion.
58AruSfOTIE, PsvcHOLOGY, Book II, UL Creed and Wardman There is a marked divergence of views as to the
Translation, New American Library, New York.
ascertainment of the contemporary moral sense of the
248 LF.GAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 249

community. Indeed, there are two issues involved views of the community. An adjudicating official is not
here: 1) what is meant by the term "moral sense", and even to think that his or her views on the act or material
2) what is meant by the term "community". This is in question reflect the moral sense of the substantial
very real especially in the complex field of consensual portion of the intelligent and virtuous persons in the
behavior, capital punishment, obscenity. community. Rather, the adjudicating official must try
to ascertain what the views of the substantial portion
In the case of Rapoulle v. United States. 59 two in- of the intelligent and virtuous persons of the commu-
fiuential jurisprudents debated the problem of how the nity are on the particular act or material involved.
moral sense of the community or society may be Stated differently. the adjudicating official must as-
ascertained. Learned Hand, writing the majority certain "whether the moral feelings now generally
opinion of the Court of Appeals of the United States, prevalent in the community would be outraged by the
pointed out that since there are no methods of act or behavior or conduct in question, that is to say
deciding the moral sense of the community and a whether it conforms to the generally accepted moral
national vote or public opinion poll in every lawsuit convictions current at the time."62
involving this issue is simply out of the question,
then, the moral sense of the community may be ascer- Jerome Frank (1889-1937), who sat with Learned
tained or interpreted by considering the reaction of Hand in the United States Court of Appeals, dissented
the substantial portion of the intelligent and virtuous on the ground that it should be the attitude of the
persons who would think an act or material to be ethical leaders of the community that should be con-
either morally reprehensible or morally justifiable. 60 sulted in ascertaining the moral sense of the commu-
nity. 63 Frank's dissenting opinion is a reiteration of
This is an echo from Justice Benjamin Cardozo the case of Smith v. CaUfomia, 64 where the Supreme
who stated that it is the "views· of the men and women Court of the United States conceded the point that a
of the community whom the social mind would rank as person charged with obscenity has a right to enlighten
intelligent and virtuous" that should be considered. 61 the court on the contemporary community morality
Thus, to ascertain the contemporary moral sense of through qualified experts on the matter involved. To
the community on a particular act or material in ascertain, then. the ethical tone of the community
question is not for the adjudicating official to under this approach becomes a matter of evidence on
consider his or her own personal outlook or belief on the basis of reliable testimony or reliable information
the matter, nor for the adjudicating official to subs- which the court may gather in any appropriate man-
titute his or her own judgment on the matter for the ner.65

62Posusta u. UnUed States, 285 F.2d 533; RapouUle u. UnUed


59165 F.2d 152.
States, 165 F.2d 153: United States u. Francioso, 164 F.2d 143.
60165 F.2d 153. 63165 F.2d 154.
6lcARDOzo, B., TuE PARADOXES oF LEcAL Sc1ENCE, 37. Columbia 64361 U.S. 147, 4 L.Ed. 2d 205, 80 S.Ct. 2n5.
University Press, New York.
65165 F.2d at 154-155.
250 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 251

To ascertain the social mind, Learned Hand immoral life. He maintained two separate families
stated in the case of Johnston v. United States,66 by two different Chinese women at the same tfn'le
"that it seems to ~s that we are confined to the best and maintained illicit relations on the side with
guess we can make of how the substantial portion of another woman with whom he had several children.
the intelligent and virtuous persons in the com- The trial judge, in ascertaining the contemporary
munity would react to a particular act or material in moral sense of the community on the matter in
question." dispute, unfortunately relied not only on his own
moral outlook .o n the matter but also on his personal
The "best guess" approach in ascertaining the reflection that the situation Yu Singco finds himself
contemporary moral sense of the ·community does not is found elsewhere. In condoning Yu Singco's acts, the
quite agree with philosopher Hemj Bergson. . He trial judge said: ·
posits the view that there should be thoughtful The court, however, believes that such
reflection on what the substantial portion of the intel- love affairs did exist once upon a time when
ligent and virtuous persons in the community feels on the petitioner was still a young married
a particular act or material in question, that is to say man. lhis case is not unusual in life and is
whether it is prurient or not by reason of the effects true in any part of the world.
attributable to it. Thoughtful reflection for Henri
Bergson means enlarging upon the object of percept- But the Supreme Court, speaking through Justice
ion immeasurably,67 that is to say considering the Alejo Labrador, reversed the trU;tl judge. In ascert-
solution in terms of its general acceptance along aining the contemporary moral conviction of the com-
rational and plausible lines. In other words, is the munity on the issue involved in the case, the Court
solution reasonable and believable? They go together held that the conduct of Yu Singco is generally con-
or not at all. Only when the result of reflective in- demned by the moral values of the community as
tuition is both rational and plausible will it gain improper and reproachable. "What constitutes'
general acceptance. proper and irreproachable conduct within the
meaning of the law must be determined by the
In the Philippines, the leading case on the prob- standard of morality prevalent in the country, and
lem is Yu Singco v. Republic of the PhiUppines. 68 In this in turn by the religious beliefs and social
this case, petitioner Yu Singco's application for natu- concepts existing therein. A man and woman living
ralization as a Filipino citizen was vigorously opposed together as husband'and wife, if known to be unmar-
on moral grounds, which in brief is that he led an ried, are in general despised and avoided in society.
even if not considered social outcasts."69
66186 F.2d 588.
678ERGZON, H., CREATIVE EvownoN, 176. Henry Holt and Com-
pany, New York. 69Ibid., See Sy Ttan Lat u. Republic of the PhUtpptnes, 94 Phll.
68c.R No. L-6152. 50 0.G. 104. 836.
252 Lf<::CAL P1 llLOSOl'J IY FUNCTIONl\L Pf<:HSPl'.:CTIVE 253

This approach of the Supreme Court in 1953 person presumably on the ground that the materials
presaged the recent ideas advanced by .Ronald involved were covered by the constitutional guarantee
Dworkin70 and Richard H. Fallow, Jr.71 that the of freedom of expression. Why. then, did he order in
appropriate ethics and principles of morality of his decision the forfeiture of the magazines in favor of
society are its inherent and ingrained values as the government to prevent them from getting into the
reflected by its institutions and traditions. These hands of the public?
immanent values. however, can only be discerned.
according to Henri Bergson. by reflective intuition The sociologists approach to the problem is some-
along rational and plausible lines. Otherwise, they thing else. They make use of sophisticated techniques
would not be reflective of the moral sense or conviction or methods of public opinion research. But this meth-
of the community. 72 odology. even with allowance for potential sampling
errors. cannot. for obvious reasons. be done by the
In People v. Yuson, 73 the accused Yuson was courts for each and every case involving this issue or
charged with offering for sale and selling magazines any other issue for that matter. And even ifthe parties
allegedly offensive to the contemporary morals of the in every particular case were to agree on such an
community. The trial judge observed that Article opinion survey the results would still be unreliable
201 of the Revised Penal Code does not define the because the respondents included in the sampling
term Moffensive to morals". According to the trial judge. group would not have the slightest idea of both the le-
this leaves each individual, including himself, free to gal and metalegal implications of their responses. 74
determine what the term Moffensive to morals" means.
The trial judge stated in his decision that Min my own The social interest in the general morals is based
belief they are not offensive to morals." Herein lies the on the right and concern of the entire community
inconsistency of the judge's approach to the problem. against those forms of acts and practices which are
His solution was not only wrongly based on his own offensive to the contemporary moral standard of the
personal outlook on the materials in question but it community. It is expressed or evidenced by the following
was not also cradled along rational and plausible national policies:
lines. Having found the magazines in question to be
inoffensive to morals. he acquitted the accused 1. The policy against acts and practices promotive
of dishonesty. impropriety and corruption.
7 01..Aws EMPIH~:. Belknap Publishe~. New York. 2. The policy against social and commercial gam-
7 1A Constructionist Coherence Theory of Constitutional Inter- bling whether as a form of recreation or pro-
pretation. 100 Harvard Law Review. 1189. ducer of revenues.
7
2B~:HGSON , H .. Ci-:A·1w~; Evo1.u110N. 176. Henty Holt and Com-
pany, New york.
7 3cnminal Case No. 58 138, Court of First Instance of Manila.
Branch XIII, December 11. 1962. The lower court dismissed the 74schwatz. L .. DITTER."11NING rnE MoRAL SENS~: or TIIE CoMMUNllY,
charge and acquitted the accused. 8Journal ofLegaJ Education, 319.
254 LEGAL Pl-llLOSO~HY FuNCTIONAL PERSPECTIVE 255

3. The policy against acts and practices calculated say self-preservation and self-realization would cease
to excite and sustain immoral thoughts and to be a universal imperative.75 ·
prurient interests. ·
n1e social interest in the conservation of human
4. The policy against acts and practices exploiting resources undergirds the right to human personality
sexual materials which though not obscene and dignity, which keeps humankind from self-
are offered for pecuniary gain. destruction (and humanity is quite aware of this possi-
5. The policy against works wQich express or bility). There is a legal and ethical prohibition against
present something which do not have earnest spoiling. taking and aru::iihilating life. In this connec-
literary. artistic or scientific merit or value. tion, there is a divided view with respect to the impo-
6. The policy concerning the protection and pres- sition of capital punishment. Some hold the view that
ervation of the values of the community. capital punishment should be imposed if it is a deter-
rent to the commission of heinous crimes. otherwise
7. The policy concerning the regulation of private there is no moral justification for it. Whether or not it
recreational enterprises offered to the public. serves to deter the commission of heinous crimes is,
8. ·The policy for the suppression of matters however, a difficult matter to calibrate. The fact is that
tending to harm _mentally and emotionally there are vicious crimes that require a different treat-
ment.76.. '
persons not mature·enough to avoid such mat-
ters.
The social interest in the conservation of human
9. The· policy against acts and practices that resources is thus based on the concern of the entire
exploit illicit sex or sexual immorality. social group against those forms of acts and practices
which impair the human assets of the community. It is
D. SoclAL INTEREST IN THE CONSERVATION OF expressed or demonstrated by the following national
HUMAN REsoURCES policies:
There is a reason for separating human resQurces
from natural resources. Substantially and in .some I. The policy concerning the provisions for mater-
other ways they are not the same. . nity welfare and the welfare of children.
2. The -policy concerning the provision for the
The democratic way of life underscores the worth _reduction of infant mortality. ·
and value of human beings. Corporeal injury. killing.
as well as child abuse and sweatshop labor are grave
problems connected with the social interest in the
75Bl!;ldle u. Peroctch, 274 U.S. 480. 47 S.Ct. 664. 71 L.Ed.
conservation of human resources. Without this 1161. . .
social interest. the right of existence itself, that is to 76See footnote 52, Chapter I. supra. for blbllcal basis of capital .
punishment.
256 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 257

3. The policy concerning the provisions for ade- E. SocIAL INTEREST IN THE CONSERVATION OF
quate facilities for the emotionally ill and men- NATURAL REsouRcES
tally retarded children to help them live to the The natural resources are lar1:d, timber, forest
best of their capacity towards a happy. useful products. water. air, natural gas. fish. game. plants.
existence. wildlife. fertile top soil, pasture, shoreland, liquid min-
4. The policy prohibiting traffic in and illegal use of erals. and solid minerals. These are the versatile
prohibited drugs and providing for treatment. bounty from the natural environment. Ecologists warn
rehabilitation. and after-care of drug addicts that the human species has been disturbing the balance
and victims of drug abuse. of nature and depleting and wasting the scarce re-
sources of existence. But whether in religion, science,
5. The policy concerning the provisions for shel-
economics. or law, the conservation and development
ters and orphanages and the education of of the natural resources do not mean that they should
homeless children and dependents. not be used at all.
6. The policy against child and sweatshop labor
and the elimination of their causes. In the context of this social interest. conservation
7. The policy concerning the provisions for the means the thrifty utilization and prevention of waste of
maintenance of rehabilitation and training the natural bounty as well as its orderly planning and
centers as well as programs for both juvenile proper development so as to maintain biological diver-
and mature delinquents. sity and prevent damage to the fragile ecosystems. The
natural resources do not only add greatly to the na-
8. The policy concerning the provisions for safe- tional wealth but they also afford recreational facilities
guards as well as the means for protection in all so important in present-day life.
kinds of employment.
9. The policy against spoiling. taking, or annihilat- Unwise methods. inadequate knowledge. out-
moded equipment. and poor facilities for the conserva-
ing human life.
tion and development of the natural resources. have
I 0. The policy against acts and practices committed resulted in serious problems. e.g.. forests that have
with intent to destroy. in whole or in part. a become deserts. rich fishing grounds that have be-
national. racial or minority group. as such. come empty. good water that has become polluted.
11 . The policy against acts and practices in deroga- This situation. brought about by a tremendous
tion of the recognized or accepted means of growth in population has had a great deal to do with
outlawing war and aggressions. loss of life, injury to the public health. lowering of
the standard or level of living. and the deterioration of
the general progress.
258 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 259

There are several characteristics of the natural rural areas from foreign or alien control and
resources that make them quite important to the domination.
community: I) they are not inexhaustible yet they 3. The policy concerning the proper management
alone can meet the national and local needs for pro- and development of the natural resources and
duction and consumption, and 2) they can be utilized assets of the community against indiscrim-
and yet conserved for the future. Thus. for instance. in inate use of chemicals.
the case of timber resources there must be some
system of forest management and lumbering. follow- 4. The policy concerning the reclamation of waste
ing scientific methods of producing. cu tung and thin- land.
ning of trees. For another instance. the orderly plan- 5. The policy prohibiting the exploitation and
ning and development of the water Fesources results misuse of the natural resources in relation to
in the establishment and maintenance of hydro- topography. recreation. watershed. and wild-
electric plants to furnish cheap power and ene,rgy to life.
urban and rural areas. mills and factories; in the es-
tablishment of irrigation systems and facilities to ex- 6. The policy concerning the conservation of eco-
pand the food producing areas, improve farm products systems such as old-growth forests. tall grass
and provide for progressive agriculture; and in the prairies. and wetlands .
. establishment of flood control devices. regulating the
flow of rivers and diverting water for storage in artif- 7. The policy concerning the balancing of growth
icial lakes or reservoirs somewhere along the river on the one hand and harvest on the other of the
area in order to prevent and minimize waste. Even natural resources.
these seemingly different or disconnected phases 8. The policy concerning the rejuvenation of air,
are really capable of being integrated or combined rivers. streams, springs. and lakes as well as the
together in a well-planned and coordinated project to orderly development and use of parks, game
achieve all these purposes. refuges. bird sanctuaries. fish farms, and
wildlife areas.
This social interest is thus based on the concern of
the entire social group against those forms of acts and 9. The policy concerning shoreland management
practices that are destructive and ruinous of the to support diversified activities.
resources and patrimony of the people. It ts expressed 10. The policy against unscientific practices and
or manifested by the following national policies: methods of conservation, development. and
use of the natural resources and against faulty
I. The policy concerning public ownership of the and ignorant procedures and manner of train-
natural resources. ing for their conservation, development and
2. The policy concerning the protection of the utilization.
national patrimony whether in the urban or

;
260 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTfVE 261

E. SocIAL INTEREST IN THE GENERAL HEALTH The social interest in the maintenance of the
Roscoe Pound subsumed this interest under the general health is based on the concern of the entire
social interest in the general security. In a certain social group that everyone has a right to the enjoy-
aspect. general health is part of the general security. ment of the highest obtainable health and well-being
However. the interest in the general health can be for the proper functioning of both body and mind.
recognized as a class by itself. The concept of police
power of the state for instance carries a separate and This social interest is expressed or signified by the
explicit reference to public health. following national policies:
1. The policy concerning programs for health
One important observable fact in society is that education and physical fitness as well as pre-
a decline in the health of the people carries with it far ventive medicine and health safeguards
reaching implications for the society. The first of through hygiene and sanitation.
these is the small yield in reserves for sustained and
2. The policy concerning the maintenance and
continued productive labor, both physical and mental.
support of hospitals and psychopathic asylums
The second is the decrease in the capacity for the as well as medical. dental. maternity. charity,
production of goods and services. The third is the day care. and guidance clinics. including
adverse effect on income and the consequent dec- puericulture centers.
rease in the purchasing power of the people and the
lowering of their living standards. The fourth is the 3. The policy concerning the even dispersal of
low morale of the people. This explains why no one hospitals and medical facilities in terms of
has a reason to refuse a tax for the continuation of population distribution and the maintenance of
health and sanitary measures. even when a person is low hospitalization and medical costs.
already immune from certain diseases. 4. The policy concerning the eradication of nutri-
tional deficiencies and provision of the nutri-
It cannot be gainsaid that when the members of tional requirements of the people.
society possess sound physical and mental health
they become more resistant to tensions and propa- 5. The policy concerning the establishment and
ganda which otherwise would be extremely difficult for encouragement of health and medical insur-
those for whom living is a continuous struggle ance organizations with voluntary or pre-paid
complexed by emotional as well as physical fears. membership providing for a sliding scale of
Health, of course, includes sanitation. These are the premiums based on income.
conditions for the social interest in the general health. 6. The policy concerning the regulation of factory
But health and sanitation are not attained by physical and tenement housing and the provision of
education alone. The latter is only complementary to healthful housing facilities at reasonable cost
the more basic policy of education in health. The in stable. well-planned housing centers.
reason for this is that such policy is achieved with
health education, attitudes. and habits.
262 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 263

7. The policy concerning adequate provisions for Aristotle may have been the first to advance the
relief of unemployment and the maintenance of idea of man as a rational being and to place the
a high level of employment. essence of this concept in the specific faculty of
reason in natUTa humana At least. Aristotle believed
8. The policy concerning the maintenance of
that this is not based on the faculty of speech and
specific percentage of shares, payment of
laughter for. according to Aristotle, man shares these
adequate wages, and the provisions for
with other species of living creatures, like parrots and
healthful maximum hours of work for specific
jackals.
kinds of work for certain groups of employees.
laborers, and workers.
This personalistic idealism advanced by Aristotle
9. The policy concerning the establishment and is, of course rejected by Christian theology on the
maintenance ofeducation centers for the training ground that it erases the proper place of human
in basic ideas regarding the improvement of beings as God's creation and that it emphasizes the
living conditions. literacy. and earning capacity presumption of self-sufficiency. both raising the grave
of the people. question of human beings ceasing to be in the image of
10. The policy concerning the provision of approp- God. The concept of imago Dei means a kinship or
riate measures in anticipation and control of affinity which human beings experience whenever they
pestilential and debilitating diseases. obediently reflect in their actions the precepts of God.
In other words. there is no godly image in human
11. The policy concerning the delineation of en- beings when they do not respect and obey the precepts
demic or epidemic areas or zones and the provi- of God. In Chapter 3, verse 18 of his second letter to
sion of appropriate measures of control. the early Christians in Corinth. St. Paul said: "With this
hope in our hearts we are quite frank and open in our
G. Soc1AL INTERF.sr IN HUMAN PERSONALrIY AND D IGNITI' ministry.... For the Lord ... is the Spirit of the new
This social interest is traceable to the view that covenant, and whenever the Spirit of the Lord. men's
humankind alone of living creatures is created imago soul are set free. But all of us who are Christians
Del Whether or not this is a simple confession of have no veils on our faces. but reflect like mirror the
belief is probably beside the point. In any case. glory of God. We are transfigured by the Spirit of the
decent human relations. whenever it has existed. is Lord in ever increasing splendor unto His own image."
the result of the recognition of the value of person-
ality, whether reference is made to the God-given · The social interest. therefore, in the preservation of
human personality or the law-given civil personality. human personality and dignity emphasizes norms of
Indeed, this social interest is both an ethical imper- decent human relations and individual security from
ative and a religious command. despite contrary atti- abusive application of power by private individuals or
tudes obtaining in different times and places. groups of individuals and from the unreasonable ap-
plication of authority by the government. There is an
264 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 265

abundance of historical illustrations where national practices in derogation of human personality and dig-
decay has been the result upon the waning of the nity. It is expressed or demonstrated by the following
esteem for human personality and dignity. Paradoxi- national policies:
cally, the preservation of this social interest is a con-
tinuous struggle. The 4ttest expression for the cause 1. The policy concerning the maintenance of the
of human personality and dignity is found in the Uni- freedom of the individual will from arbitrary
versal Deel.a.ration of Human Rights proclaimed by subjection to the will and control of another.
the United Nations Organization and the European
Convention on the Protection of Human Rights and 2. The policy against admissions of confessions or
Fundamental Freedoms.77 statements secured by means of torture or by
the infliction of coercive pain. promise of favor.
In the Philippine legal order, this.social interest is or threat of injury. whether psychological pun-
expressly recognized in Chapter 2, Preliminary Title, ishment or physical attack.
of the Civil Code. There are several articles in this 3. The policy concerning the maintenance of a
particular title devoted to decent human relations. decent human existence despite legal rest-
According to the Code Commission, the new provi- raints and enforcement of the needs, claims. or
sions were designed "to indicate certain norms that demands of others.
spring from the fountain of good conscience ... basic
principles that are to be observed for the rightful 4. The policy concerning the recognition and
relationship between human beings for the stability of maintenance of fair and reasonable opportuni-
the social order." There is a clear call for every person ties for political, economic~ social, and cultural
to depend on her or his moral nature and good faith endeavor.
in the exercise of rights and in the performance of 5. The policy against acts and practices discour-
obligations. Thus. it is required that every person aging to individual enterprise and initiative.
must respect human personality and dignity and is
under a legal duty to pay damages if they wilfully 6. The policy concerning the preservation. promo-
cause loss or injury to another when the acts are tion. and enjoyment of the basic human rights
derogatory of human personality and dignity even and freedoms.
though said acts may not constitute criminal offenses. 7. The policy concerning the freedom to refuse to
sell one's labor if one decides the market does
This social interest is based on the concern of the not warrant it.
entire social group against those forms of acts and
8. The policy concerning the exercise of privi-
77A brief concise development of the main lines In the history
leges and extension of immunities in conformity
with the realities of human conduct.
of the idea of human dignity (the classicaJ view, the Christian view,
and the renaissance view) is found In BAKER AND HERSCHEL, TI-IE D 1GN11Y 9. The policy concerning the recognition and pro-
OF MAN, Harvard University Press, Ca mbridge.
tection of the interest of an individual in being
Pl IILOSOPHY FUNCTIONAL PERSPECTIVE 267
266 LEGAL

let alone or in the publicity value of his name chance, choice, and opportunity in the political, reli-
or likeness. gious, economic, social, occupational, and cultural
endeavors in the community. For when human
10. The policy concerning the payment of ade- beings living in society enjoy stable existence, that is
quate wages for the kind of work or service to say when every individual is assured of fair
performed or rendered. equality in initiative, choice and determination, then
11. The policy concerning the freedom of chang- they realize sooner than later their rightful places.
ing one's situation, to choose one's job or work, functions and responsibilities in the community.
and of movement in the community. There is . therefore, a social interest in the preservation
of harmonious social relationship among the
12. The policy concerning the recognition of the members of the community.
fact that human beings have minds.
The implication of this social interest is two-fold.
13. The policy concerning the presumption of The first is the right of the people. without discrimina-
innocence until proven guilty. tion, to have a voice and to participate in the formula-
tion of governmental policies and functions. Of this
14. The policy concerning the abolition of milita- right there is no doubt since the people are called
rism, racism and sexism. upon to support these policies morally, physically, and
financially. The second is the reasonable expectation
H. SocIAL INTEREST IN THE SocIAL LIFE
of the people that their optimum social requirements
will be met.
Roscoe Pound does not carry this classification.
But on the basis of the jural postulates there is an This social interest is based on the concern of the
identifiable expectation for social contentment. entire social group against those forms of acts and
practices which adversely affect the stability of exist-
Humans are social beings. They cannot thrive ence and happiness of the people. It is expressed or
in an environment devoid of or lacking in societal represented by the following national policies:
contacts and relations. But the basic factor involved
in the social interest in the maintenance of the social l. The policy concerning the prerogative of the
life is the strong desire for stable existence without people to participate, directly or indirectly. in
which no society can advance or progress. the formulation of government functions. laws
and policies.
However, this demand does not mean the elimina-
tion of the challenges and competitions that are 2. The policy against acts and practices preju-
normal to human existence. And it is the kind of dicial to independent action. thought. and
societal existence amidst challenges and compe- judgment, and to the freedom to protest openly
titions where everyone has a fair and reasonable in accordance with rules established by society.
268 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 269

3. The policy concerning the exemption from vio- I. SocIAL INTEREST IN THE GENERAL PROGRESS
lence, bondage, or forced labor. whether physi- In all societies and disciplines. progress does not
cal or mental, and the freedom from unreason- mean mere change. Not all change is progress. Degen-
able searches and seizures of whatever nature. eration or decadence is also social change but it is by
4. The policy concerning the prosecution ofoffenses no means progress. Therefore, the viability of social
by the state or by the complaining witness. institutions does not rest on their existence alone.
Their vitality depends on their continuous improve-
5. The policy concerning the privacy of communi- ment and. in no small measure. on the development
ca lion and the protection ofofficial and privileged of rational, self-determining members of the commu-
communications. nity. There can hardly be any progress when these
6. The policy concerning precauUonary measures conditions are not present or afforded. Progress does
for the early repression of criminal fecundity not. therefore, take place automatically or in the ordi-
and the improvement of correctional facilities na:ry occurrence of events. It comes and continues with
and services for rehabilitation purposes. some kind of struggle and difficulty.
7. The policy against acts and practices tending to There are historical instances of societies which
oppression or discrimination based on Irrel-
have degenerated because offailure to afford the favoring
evant and immaterial grounds.
conditions of development not only of social institu-
8. The policy concerning the prevention of dis- tions but also of self-determining individuals. If the
crimination in public accommodation and rec- motive behind the move to control or emasculate
reation as well as the outlawing of their potential progress is purely personal or selfish as. for instance,
causes. to propagate personal or group power and control. the
9. The policy against acts and practices prejudicial decadence or disintegration is even more swift. Human
to the maintenance and support of charitable, society, however, is not simply a system like any other,
educational, religious, and eleemosynary insti- but one where there is desire and drive to better the
conditions of living by the immediate application of
tutions.
the fruits of the general progress. Thus, today, the
10. The policy concerning adequate provisions for great strides made in science are being applied for
old-age. sickness. disability. medical. vacation, the betterment of human life. Edmund Burke was
and death benefits as well as severance and emphatic when he stated that a society without
retirement pension. concern and regard for general progress "is without
11. The policy concerning the abolition of sexism, the means of its conservation [and) without such
racism and militarism. means it might even risk the loss of that which it
wished the most to religiously preserve."78

78BuRKE, E .. IV WORKS, 23. Little Brown & Co .. Boston.


270 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTNE 271

This.social interest is based on the concern of the There are certain favorable conditions for intellec-
ent;ire social group against those forms of acts and tual experience or the attainment of the truth.
practices which threaten or impair the intellectual and namely: 1) an honest. critical and inquiring mind.
moral aspects of the nature of man and the develop- 2) the acceptance of the recognized standard of ·pro-
ment of control over the forces of nature for the satis- priety in order to prevent doubt and expose error. and
faction of human needs. 3) a climate where the freedom to think. read, write.
criticize, reformulate. evaluate, and believe prevails.
The social interest in the general progress appears Without these factors. the natural desire to know can
in four forms, namely, cultural progress, moral progress, be stifled or suppressed. Thus, the interest of society
economic progress. and political progress. in the cultural progress envisages the prevention or
suppression of acts and practices which are restrictive
(1) Cultural Progress or intimidative of the favorable conditions for intellec-
tual experience. In more recognizable terms, there is
The interest in the cultural progress is based on
the rational soul of man, his intellectual and imagina- no room for prior censorship and suppression.
tive capacities. In a different way of stating it, man has
the capacity for intellectual and imaginative experi- The unfavorable climate to cultural progress is
ence. The desire to know and to advance is deep-rooted brought about by governmental intervention as well
in man. Indeed, every known society. however primi- as religious interference. This can be illustrated by
tive, shows this penchant or inclination. Man's intel- means of the problem of academic freedom. 79 This
lectual nature is expressed in the desire to know the freedom is a vital and necessary adjunct to cultural
truth no matter where it may tend or lead, or how progress. but governmental intervention can be per-
popular or unpopular the result may be, or how im- emptory and authoritarian while religious interference
c.;an be creedal and dogmatic. Either way. academic
portant or unimportant the persons are whose
freedom can be jeopardized. Governmental interven-
thoughts and ideas are to be criticized and evaluated.
tion and religious interference. no matter how dearly
The chief concern, therefore. of intellectual capacity
held by their proponents, are not inviolable or sacro-
is the encouragement of arts and letters and academic
sanct matters that they are beyond challenge or argu-
freedom.
ment by the expression of ideas. Otherwise. an error
may go on uncontested. Truth flourishes only in a
Without going into the difficult problem of
climate of free inquiry where error may be exposed.
what truth is. it can be said that falsehood and
deceit concerning the different aspects of life are inju-
rious and fatal to both individual and national exist-
ence, especially when utilized by policymakers and 79ni1s freedom ls guaranteed ln Article IV. Section 5(2) of the
responsible government officials as a means of per- 1987 Constitution In all institutions of higher elamlng. It clearly
suasion or dissuasion. covers both institutional and Individual academic freedoms. IV
Re cord of the Constitutional Conve ntion, 439. September 4. 1986.
272 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 273

However, academic freedom is not an absolute normally imposed on other articles and pro-
right for it is limited by certain factors: 1) contrary social ducts of trade and commerce.
interests or national policies, 2) restraints placed upon
6. The policy concerning the freedom and encour-
researchers and teachers by their own views or beliefs
agement of arts and letters.
that stand in the way ofa free search for and discussion
of the truth. 3) rigid adherence to concepts and ideas 7. The policy concerning the freedom to pursue
that sacriflce human personality and dignity, and pure or basic as well as applied or immediate
4) substantial and imminent danger to society. research in the various disciplines.
8. The policy concerning the freedom to read.
Thus, cultural progress is the improvement and inquire into. and discuss both orthodox and
betterment of the contents of human knowledge and unorthodox but not conspiratorial and obscene
heritage as well as the means for their conservation and subjects and to make expressions or observa-
transmission. The interest in the cultural progress is tions in relation thereto.
expressed by the following national policies:
9. The policy concerning the freedom to analyze.
I. The policy guaranteeing free and open enter- review, test, criticize, reassess, and restate be-
prise in ideas and expressions wherever they liefs. ideas. concepts, and institutions in a cli-
may tend and against acts and practices pro- mate of responsibility and confidence.
motive of or tending to promote monopoly in 10. The policy concerning the freedom from prior
education. censorship or unnecessary restraint, whether
2. The policy concerning the privilege of institu- external· and involuntary or internal and
tions of higher learning to voice all responsible voluntary.
ideas or opinions on all kinds of issues or
questions. (2) Moral Progress

3. The policy against acts and practices which Roscoe Pound does not include the interest in the
destroy or restrict the transmission of the moral progress as part of the social interest in the
learning of the past and certain bodies of knowl- general progress. But the interest in moral progress is
edge which are not false or erroneous. not the same as the social interest in the general
morals. The former is de futuro while the latter is
4. The policy concerning the promotion and en presente. This distinction is explained by the fact
maintenance of museums, archives and librar- that the prevalent or present morality may not neces-
ies containing the widest diversity of views and sarily be the best morality. Hence, the need to recognize
expressions. the social ground swell for moral progress. However,
5. The policy concerning the flow of books, general morals and moral progress complement each
magazines and other cultural and electronic other.
materials free from trade or exchange controls
274 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 275
Moral progress is based on the idea tha t the involved in the raising of moral sights to make
enlightened individual. not customary modes of deci- humankind better.
sions, is the source of moral judgement. There are
jurisprudents who seem to consider morality to be The interest-in the moral progress is expressed or
implicit in the customary criteria of society. Eugene indicated by the following national policies:
Ehrlich, for example. supports this view. BO However,
there are certain observable facts that militate 1. The policy concerning the encouragement and
against this idea. It is known that there are people extension of the application of the more specific
who practice theft but the fact that it is customary moral values.
with them does not necessarily mean that they would
2. The policy against acts and practices which
like the practice to go on or that they view it as permit or are conducive to non-observance of
moral. The victims certainly do not. Then. again. a
responsibilities.
society may condone the mistakes of some of its
members but that does not necessarily mean that the . 3. The policy concerning the freedom to criticize,
community has approved the conduct or the act reassess, and restate custom in light ofrational
involved. and ethical principles.
4. The policy concerning the implementation of
Moral progress is not simply conformity to laws the principle of social (ethical) justice.
either. There are laws which do not meet the test of
morality and there are laws which enforce only mini- 5. The policy concerning the recognition of the
mum standards of morality. Additionally. conformity relation of social values to ethical values.
to such laws would only amount to legality. Thus. 6. The policy against the exploitation of sexual
moral progress goes farther than the adjustment of experience which distorts its true meaning and
human conduct to the customary criteria of society or ·endangers the culture of the people.
mere compliance with its laws. Since this particular
social interest depends to a large degree on the en- 7. The policy against acts and practices that pre-
lightened individual, continuous reflection upon scribe and impose what shall be sound and
ethical principles and recognized standards of correct in morality and coerce anyone to rely
propriety becomes a very important element. This on them.
means the enlargement of moral horizons in the
achievement of higher moral values and standards. (3) Economic Progress
And the home. the church and the school are all The development of human control over the forces
of nature for the satisfaction of human needs is
another condition for a sound and stable society.
80Patge. W.H .• Professor Ehrlich's Czemowics Seminar of Liv- Indeed. this is the case for the maintenance of econo-
ing Law, Proceedings of the Association of America n Law Schools ,' mic progress. But this would hardly move if the
46, 64.
276 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 277

basic freedom of enterprise is not recognized and 2) betterment of the machinery of economic organiza-
implemented. tion and administration.

In the case of Guido v. Rural Progress Administra- The interest in the economic progress is expressed
tion, Bl the Supreme Court of the Phillppines. speak- or indicated by the following national policies:
ing through Justice Jose P. Laurel, held that "hand in 1. The policy concerning the freedom of enterprise
hand with the announced principle . . . that the in the economic institution and in industries
promotion of social justice to insure the well-being and not closely connected to national welfare and
economic security of all the people should be the defense and to public governmental activities.
concern of the state. is a declaration. with which the
former should be reconciled, that the Philippines is a 2. The policy concerning the encouragement of
republican state created to secure to the Filipino new ideas and inventions to provide the means
people the blessings of independence under a regime of satisfying human needs and against unjusti-
ofjustice, liberty and democracy. Democracy, as a way fiable witholding of their uses from the public.
of life enshrined in the constitution. embraces as its 3. The policy concerning the establishment.
necessary components freedom of conscience, free- encouragement and successful operation of
dom of expression, and freedom in the pursuit of banks. both urban and rural. for agricultural,
happiness. Along with these freedoms are included trade, production. or commercial loans.
economic freedom of enterprise within reasonable
bounds and under proper control." 4. The policy supporting a strong broad capital
base by means of pooled financial resources in
There is always a minimum economic freedom an economic situation pressured by a high rate
which must be met otherwise normal relations may not of population increase or by scarcity of money
be enjoyed. Specifically, this means maintenance of supply.
harmonious relations between management and 5. The policy concerning the privilege of capital to
labor and between landholder and tenant, the privi- expand its operation during ordinary times and
lege of property from general and undue confiscation. to pursue control measures to ration it in times
and the freedom generally of private rights from nulll- of disorder.
fication. Economic progress is thus the continuous
satisfaction of the economic requirements of the 6. The pollcy concerning foreign and domestic
people for the enjoyment of a good and happy life. It credit lines for local investment to generate
depends ultimately on two factors: 1) human control income and higher employment level.
over things and over the forces of nature, and 7. The policy concerning adequate governmental
encouragement and limited concessions for the
diversification of the economy.
8lc.R. No. L-2089, 84 Phil. 847.
278 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 279
8. The policy concerning the free use and employ- 16. The policy against acts and practices promo-
ment of property in general and against undue tive of or tending to promote unreasonable
and unreasonable disturbances or restrictions bank rates on advances or excessive taxes
on personal and property rights. upon normal profits. business or industrial
9. The policy concerning adequate provisions for growth, efficiency, ingenuity, good manage-
the production and the free sale. traffic and ment, and public service.
transaction of the goods of existence or staple 17. The national policy on the proper use of taxation
commodities. as a means of equitable redistribution of wealth.
10. The policy concerning the provision for an in- 18. The policy for a well-conceived, logical and
tegrated program of construction and mainte- effective program of market stabilization.
nance of highways. railways. and feeder roads
from producing areas. 19. The policy for an international monetary reserve
in hard currencies to promote commercial trade
and transactions.
11. The policy against governmental ownership and
unregulated control of businesses and indus- 20. The policy concerning the freedom to with-
tries. draw from. form, join, and assist any trade,
commercial, industrial unions and labor asso-
12. The policy concerning the imposition of tempo-
ciations whose purposes do not run counter
rary. selective control measures on the free-
with public security and interest.
enterprise economy. particularly in strategic or
crucial scarce resources for the purpose of 21. The policy concerning the freedom to engage in
preventing low income, production cuts. and collective bargaining and in peaceful and
unemployment. lawful strikes. pickets. and boycotts.
13. The policy concerning liberal depreciation al- 22. The policy concerning raise in wages at a pace
lowances and discount on purchases of new equal or nearly equal to productivity and cost of
equipment in order to stimulate entrepreneurial living.
investment. 23. The policy concerning the efficient role of the
14. The policy against acts and practices destructive government as an impartial third party in
of wholesome competition and promotive of or minimizing and adjusting labor-management
tending to promote monopolistic combination. and landholder-tenant disputes.
15. The policy concerning the maintenance and 24. The policy permitting individual and group
encouragement of domestic as well as foreign economic activities reasonably related to some
commerce and carriage of goods. legitimate wants. claims and demands.
280 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTrvE 281

25. The policy concerning the stability. certainty Political progress is not based solely on the im-
and security in transactions in consonance provement and elaboration of the political and legal
with established standards of fair dealing. machineries. It also deals with the formation. clari-
fication and distribution of social values among the
26. The policy concerning the reasonable use and members of society. To be sure. the government itself
application by the government of tax. credit, is sometimes guilty of withholding some, if not all.
budget. spending. and monetary plans and of the social values from the people. In a democratic
programmes to encourage and strengthen in- society. accurate information concerning the matters
vestment and production in order to create mentioned above is a prerequisite condition for political
employment opportunities. generate income, progress. When this condition prevails, intelligent
and stimulate consumer demands. decision-making is possible.
27. The policy concerning tax cuts for the low-
income groups. levying of taxes that are The interest in the political ·progress is expressed
needed to carry the government on current or indicated by the following national policies:
costs. loosening of extreme credit policies. and
the reduction to government spending during 1. The policy concerning the freedom to participate
economic recessions. and effect changes in the constitution and in
the improvement of laws, policies. and functions
28. The policy concerning the provisions for regu- of government.
latory work on employment yielding sufficient 2. The policy concerning the freedom to criticize
income to meet immediate human needs and openly inefficient and corrupt administration of
comfort. afford some leisure and provide for governmental services as well as public officials
reasonable security against unemployment, in relation to their public acts in a manner
sickness. old age, and death. consistent with truth and decency.
29. The policy concerning manageable budget- 3. The policy against acts and practices encroach-
ary deficits. exchange rates and governmental ing or tending to encroach upon the privilege
price intervention. to state. publish, and read both orthodox and
30. The policy concerning integration of basic unorthodox or popular and unpopular. but not
industrial endeavors for the purposes of conspiratorial and immoral. ideas and opinions.
securing a stable supply of products and meet- 4. The policy concerning the general right of the
ing all relevant necessities. people to accurate and free information and
against acts and practices restricting such right.
(4) Political Progress
5. The policy concerning election or appointment
The democratic way of life is essentially a belief in to any political or constitutional office regard-
a cooperative society of people searching for solutions
to common problems.
1

282 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 283

less of partlcular views on any social or religious 15. The policy concerning reciprocal emigra tion
matter. except in works of a classified nature. programs toward permanent residency.
6. The policy concerning the guarantee to partici-
J. SocIAL forrEREST IN TI-IE GENERAL AEsTHimcs
pate in the electoral process without inter-
position or compulsion and regardless of Roscoe Pound's classification of social interests
religious faith, political and property qualifica- does not include the concern and Interest of society
tions. in the general aesthetics. However. thejural postulates
of civilization have been pressing this particular interest
7. The policy concerning autonomy in local govern-
for recognition. As now protected by the legal order,
ment.
the social interest in general aesthetics refers to the
8. The policy against acts and practices that pre- concern of the people in the pleasures prompted by
scribe and impose what political concepts are the beauty of nature. fine and performing arts, and
correct and force anyone to abide by it. belles lettres.
9. The policy concerning the freedom to withdraw
from. form, join. and assist political and civic One of the unique marks of human personality
groups whose purposes do not contravene public is its capacity for aesthetic experience. This is the
security and interest. capacity of human beings to create art and appreciate
beauty. It is this creative and appreciative abilities
10. The policy against acts and practices promotive that human beings are continuously engaged in.
of or tending to promote falsehood and deceit.
11. The policy concerning the maintenance of integ- There are two aspects of beauty and art. The
rity and ethical standards in public affairs as first ls subjective. 111is aspect considers beauty and
well as devotion to public trust. art as dependent solely on the perception of the artist.
observer or collector. Thus, whether an object or thing
12. The policy concerning the recognition of the is beautiful or artful hinges on perspective or experi-
overriding effectivity of treaties and interna- ence. It is not so much the fidelity in imitation, that
tional compacts made in pursuance of the con- is to say the life-likeness of the art product as it is
stitution regarding proper subjects of interna- the manifestations or expression of an aesthetic experi-
tional negotiations over contrary national laws ence. The subjectivist interpretation of beauty and
and customs. art is, therefore. a relative one. It varies with dillerent
13. The policy concerning the mutual or reciprocal individuals at dilTerent times and different places.
separation of church and state as well as the Thus, for instance. the artistic value of a painting or
neutrality of the state in purely religious matters. art form will not be the same for the classicist. neo-
realist, impressionists, or cubist artists. observers or
14. The policy concerning firmness in political loyalty collectors. In this particular aspect. a thing is beautiful,
and principles. agreeable. or pleasant because there is congruity
284 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 285

between the capacity or demand of the artist. observer Because of these activities, aesthetic consider-
and collector with some external object or thing in ations have come to the fore in the exercise of the
which the capacity for aesthetic experience is realized police power of the state. A thing is or may become
or fulfilled. In different words. an object of art or rela- offensive to the physical senses. However, the exercise
tion of arts is beautiful, agreeable, or pleasant because of police power in this area of social interest must
it carries to fulfilment the aesthetic possibilities and have a substantial relation to the general welfare and
the tendencies of the artist. observer or collector. must be a reasonable measure for the attainment of
the purposes sought to be achieved.
The second aspect of beauty and art is its object-
ive side. It considers beauty and art to inhere in the The social interest in general aesthetics is
external object or thing, that is to say beauty and thus based on the concern of society against those
art are capable of existing by themselves. To put this forms of acts and practices which impair the balance
in another way, there are works, objects. or things of nature and those which hinder aesthetic possibilities
that are sincerely considered and preferred as having and development. It is manifested or evidenced by the
artistic value. But it might be that even this aspect following national policies:
is somehow dependent upon the aesthetic activity or
capacity of the artist. observer or collector insofar as I. The policy concerning the freedom to compose.
the appreciation of the beautiful and the artful is con- write, paint. draw, and design.
cerned. 2. The policy concerning the orderly planning,
development and maintenance of national and
The realization and expression of beauty and art municipal cultural centers, museums, art gal-
is possible through the media of nature (environment), leries, legitimate stages. music and symphony
wood (carving), marble (sculpture), pigment (painting), halls.
rhythm (dance), harmony (music). and language (prose
or poetry). In recent times, there has been a marked 3. The policy concerning the orderly planning.
increase in the use of these media. There has also creation and development of reserves of natural
been a considerable degree of interest in ecology and beauty and pleasure grounds, including the
in the creation of national and municipal reservations natural sceneiy and wildlife therein. as well as
of natural beauty, in the control and regulation of in- arboretums, botanical gardens. zoos, and parks.
artistic, jarring, and obnoxious signboards and :4. The policy concerning the assistance, promotion
shingles, in the enactment of urban, suburban and and patronage of the fine and performing arts.
rural planning and construction of parks. pleasure literature and music.
grounds. scenic spots. and resorts. There is no question
that these are some of the things that should be 5. The policy against acts and practices distracting
accomplished for the expression and realization of the or repugnant to the senses or the mind.
aesthetic nature of human beings.
286 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 287
6. Tue policy against acts and practices destructive and unrealistic at the present time. Hence, next to
of the works or objects or art. literature and the consti tu lional convention, social engineering is better
music. done by the legislative organ in accordance with the
constitu lion.
7. Tue policy concerning the C?reation and main-
tenance of zones and distlicts for purposes of
There are several grounds in support of this
attractive and healthful community planning and
view. One is that the members of the legislative branch
the recognition of planning devices and zoning
of government are periodically elected by the people,
controls.
placing them in a much better position to detennine
8. Tue policy concerning the promotion of aesthetic and declare the precise limits of interests and the
objectives in consideration of public health. balance or compromise to be struck in the adjustment
safety. and morals. of such conflicting interests. 8 2 Another is that social
interests and national policies are sooner realized and
44. ADJUSTMENT OF CONFLICTING fulfilled by the legislative branch of government since
INTERESTS it enjoys the confidence and trust of the entire com-
Since wants. that is to say claims, demands and munity. Thus. "the legislature is in the first instance
expectations are fluid and sometimes technical in char- the judge of what is necessary for the public welfare.
Earnest conflicts of opinion make it especially a ques lion
acter, which then is the agency of the government best
for the legislature and not for the courts."83
qualified to ascertain, assess and adjust the competing
interests prevalent in the community? One thing appears
There is a common thread to these assumptions.
certain in the face of contrary suggestions. Whether
Tue measures formulated by the legislature reflect the
it is this or that agency. social interests and national
will of the community since such measures are based
polices should be used correctly by those who will
either on the people's support or opposition to certain
use them otherwise there would only be hasty and
bad decisions. proposed plans and programs on which they have been
elected. It is possible though that the people's rep-
The first view considers the courts as the proper resentatives may later abandon and even disavow such
plans and programs but that is beside the point.
public agency to perform the task of assessing and
adjusting conflicting or overlapping interests. But it
However. there are instances when the policy as-
is obvious that the courts are not designed nor are
sessment and adjustment made by the legislative body
they well-equipped to do it in a democratic system are not free from lacunae or gaps. And there are
of government since they are not representative
certain areas too where the assessment and adjust-
bodies. The other view considers social engineering
or the determination of what is necessary for the good
of the collective polity as the prerogative and function 82Perez v. Sharp, 108 P.2d 17, 42.
of the people themselves. But this process has already 831..acson v. Roque, 92 Phil. 457
outlived its usefulness and would be too cumbersome
288 LEGAL PHILOSOPHY FUNCTIONAL PERSPECTIVE 2

ment are indistinct or unduly restrtctive. There are and would have enacted if he had been cognizant of
those who believe that in such cases the adjudicative the case in question."85 John Austin stated that it
organ of government may step in to clarify the matter. is difficult to "understand how any person who has
However, the problem is not so much in this connection considered the subject can suppose that society could
as it is in determining which interest outweighs the have possibly gone on if the judge had not legislated.
others. This involves the sensitive problem of judicial or that there is any danger whatever in allowing them
declaration of policy. This is one of the specific areas that power, which they have in fact exercised. to make
which has met the stinging criticism of the Critical up for the negligence or the incapacity of the avowed
Legal Studies Movement. a topic considered in the legislator. That part of the law of every country which
chapter on modem legal realist perspective. was made by the judges has been far better made
than that part which consists of statutes enacted by
While it has been said that courts act on questions the legislators."86
of this nature "by slow degrees and by very short steps
and with as much consistency as courts may be able Justice Holmes. however. believed that judicial
to maintain, "84 it is equally true that determination legislation is not absolute. Holmes. ever the master
and correction of policy is inherently legislative in nature. of the cryptic language. conditionally recognized that
But it has been argued that from Aristotle to Aquinas, "courts do legislate but they do so interstitially. they
to Austin, to Holmes, the answer to this problem has are confined from molar to molecular motion. "87 By
been that courts can also engage in judicial legislation this Holmes meant that courts cannot contradict de-
since the knowledge of the courts, like that of the terminate legislation nor can they articulate new laws
legislative body, comes also from the prevailing or ac- because these actions involve a different process:
cepted sentiments of the people, from experience and molecular to molar motion. Courts can exercise judicial
learning, from research and reading, and from judicial discretion only when there are gaps ·in existing legisla-
reflection. tion, that is to say a law is ambiguous or vague which
for that reason needs filling.
Aristotle was the first to inquire into the question
of judicial legislation when he argued against the futility But while courts may engage in judicial legislation
of freezing the law. Aquinas, on the other hand, held when the legislative assessment or adjustment is
that "conduct is essentially irregular. When, therefore, vague or ambiguous. the concept of judicial legisla-
the law lays down a general rule and therefore a case tion or judicial discretion is not as wide as the power
arises which [is] an exception to the rule, it is then
right ... to rectify the defect by deciding as the lawgiver 85N1coMACHEAN Enucs, 315. Rackham Translation. Harvard
would himself decide if he were present on the occasion University Press, Cambridge.
86LECTURF.S IN JurusrRUDENCE, Lecture 5, note. Cockroft. Inc.,
New York.
84stock u. New York, N.H. & H .R. Co., 177 Mass. 155, 52 87Sou.themPac!ficCompany u.Jensen. 244 U.S., 205, 222, 37
L.R.A 328, 58 N.E. 686. S.Ct. 524, 531, 61 LEd. 1086. 1091.
290 LEGAL PHILOSOPHY FuNcnONAL PERSPECTIVE 291

entrusted by the constitution to the legislative branch yers can consciously fashion the growth and devel-
of government. The legislative intention is always opment of law relating it to existing conditions of the
composed of purpose and essence. Thus, courts must civili7.ation of time and place.
follow the rule of purposive and essential interpret-
ation of statutes which Aristotle also expressed long Thus, the application of legal rules acquires
ago as "the correction of that wherein the law, by reason cogency and indubitability because of the underlying
of its generality, is deficient." And the correction process and justifying reasons which is a better way of coming
involves restraining a statute so as to take in less to grips with the non-postponable problems of the legal
or enlarging it so as to take in more than the words order. To disregard them in the solution of conflicting
or text of the statute indicate. or overlapping interests would be fatal to the realization
of the ends of the law, which is peace and security.
But functional jurisprudence posits the view that
judicial legislation is acceptable only when the process The doctrine of cooperation recognized in criminal
takes into consideration the jural postulates, social law to mean only active. actual, or amrmative action.
interests and national policies. Such policy assess- e.g., the performance of an act intended to help or
ment or adjustment need not be unanimously ap- assist in carrying out a common purpose. provides
proved since public acceptance of such actions would a good illustration. Under this theory of cooperation,
be conditioned by the presence or absence of sharp a person who has in his or her power to prevent harm
disagreement among the members of the assessing to another could very well withhold action and not
body. be perturbed by the consequences of such indillerence.
The plea to reject tr.J.s doctrine as contrary to social
45. VALUE OF FUNCTIONAL JURISPRUDENCE interest is not without basis. The doctrine of coop-
eration must necessarily include cooperation by
The underlying jural postulates of the legal order, omission of that which should have been done in a
the scheme of social interests and the network of national given situation.88 In other words. there is responsibility
policies expressive or indicative thereof are helpful in on the part of a person or group of persons to allow
determining the limits of reasonable adjustment of some crime or harm to be committed or done when
competing interests. it could have been prevented without any danger to
them.89 If this particular illustration is expanded to
When used in this manner especially in new areas
of law there is some degree of assurance that there
will be no vague or ambiguous reference to some social 88cf Article 18 of the Revised Penal code which provides that
interest or national policy. Law as an effective instru- accomplices are those persons who. not beingincluded in Article 17
ment of social control is not then debased but on the (which e numerates the persons who are considered as principals)
cooperate in the execution of the offense by previous or s imulta ne·
contrary exalted and held in respect. Policy makers. ous acts.
legislators. judges. government functionaries, and law- 89People v. Ronda. G. R. No. 1- 1702. 40 O.G. 2063.
292 LEGAL PHILOSOPHY
CHAPTER v1
cover public officials who allow apathy or indifference
to prevail, it is no wonder that the minority groups THE MODERN LEGAL REALIST
in many places live precariously. PERSPECTIVE
Edwin Patterson, who has taught law for over forty
years, said that "over a period of a good many years 46. Labels
I have found Pound's inventory generally illuminating 47. Legal Realism as a Distinct Juristic School
in the drafting of legislation and in predicting trends
of legal development as well as interpreting legal lit- 48. Judicial Legal Realism
erature." A. Intellectual Forbears
(1) Human Law and Human Experiences
Justice Benjamin R Cardozo added the great (2) Separation of Law from Its Sources
weight of his scholarship to the valuable role played B. Constructive Skeptics
by the social interests and national policies in the legal (1) Rule Skeptics
ordering of society. He said, "logic and history. and (2) Fact Skeptics
custom, and utility, and the accepted standards of right (3) Opinion Skeptics
conduct. are the forces which singly or in combination C. Role of Mate1ial Facts
shape the progress of the law. Which of these forces D. Role of E:x-perience and Social Advantage
shall dominate in any case, must depend largely upon E. Role of Metalegal Stimuli
the comparative importance or value of the social ( 1) Fom1alist View
interests that will be thereby promoted or impaired. (2) Modern Realist View
. . . These may enjoin upon the judge the duty of (3) Metalegal Factors
drawing the line at another angle, of staking the path (a) Stimulus Set by the Witnesses
along new courses. of making a new point of departure (b) Stimulus Set by the Lawyers
from which others who come after him will set out (c) Stimulus Set by lhe Judges' Legal
upon their journey. If you ask how he is to know Attitudes and Prejudices
when one interest outweighs another, I can only (d) Stimulus Set by the Judges'
answer that he must get his knowledge just as the Predilections and Preconceptions
legislator gets it, from experience and study and (e) Stimulus Set l>y Historical Events and
reflection: in brief, from life itself. Here, indeed, is Political Precedents
the point of contact between the legislator's work and (f) Stimulus Set by Current Social
his." Values and Economic Postulates
F. 'The Law as the Product of the
Judicial Process
294 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 295

G. Exclusion of Legislative and 51. Psychological Legal Realism


Executive Actions A. Critique .of Judicial Legal Realism
H. The Adjudicative Process as the B. Critique of Legal Ideology
Prime Mover C. Nature of Law
I. The Law and its Purpose D. Basic Jural· 'Relations
49. Social Legal Realism 46. LABELS
A Source of Law
B." End or Purpose of Law The term "modern legal realism" has been used
C. Application of Law to describe the experiential outlook of this school of
jurisprudence on the traditional assumptions on the
50. Critical Legal Realism nature of the legal order.
A Critical Legal Realism Scorned
B. Polemics Against Critical Legal Realism However, there are those who prefer the label
C. Deconstruction ·Of Dominant Liberal Paradigm "pragmatic jurisprudence" to describe the post-meta-
(1) Trashing the Tradition of the physical view of this juristic school. This is due
Dominant Liberal Paradigm .. mainly to the influence of the philosophical move-
(2) Internal Reformulation of the Dominant ment started by Charles S. Pierce who first intro- .
Liberal Paradigm duced the principle of pragmatism in 1878, 1 William
(a) Rationale and Justification for the James who revived it in 1896 in a series of lectures
Censure he delivered before the Philosophy Union of the Uni-
(i) The Rule of Law versity of California,2 and John Dewey who reiterated
(ii) Separation of Governmental it in 1926 in his essays on nature and experience in
Powers experimental logic. Pierce, James and Dewey posited
(iii) Objectivism and Formalism that pragmatism, as a theory of knowledge, is based
(iv) Judicial Activism
(v) Idealistic and Cynical Concepts
of Democracy
(b) Transformation of Liberal Legal 1PRAGMATISM AND PRAGMAT1c1sM, Longmans. Green and Company.
Order New York.
(i) Basic Equality 211-iE W1LL To BELIEVE, Longmans. Green and Company. New
(ii) Democratic Republicanism York; PRAGMATISM: A NEW NAME FOR SoME Ow WAvs m- T111NKING.
Longmans. Green and Company. New York. William James notes
D. Transformative Context of the
that "the principle of pragmatism lay entirely unnoticed by anyone
Post-Liberal Order
for twenty years" until he brought It forward again (JAMES, W.,
( 1) Decentralization of Government PRAGMATISM, 47. Longmans, Green and Company. New York).
(2) Reorganization of Market Economy William James Influenced a great deal the legal philosophy of
(3) Reconstruction of System of Rights Justice Oliver Wendell Holmes.
E. Nature and Function. pf Law
296 LEGAL Pt II LOSO PHY LEGAL REALIST PERSPECTIVE 297

on pure experience which rejects all transcendental the functional philosophy of law.4 For Stone and
principles as well as abstract concepts and ideas. As Bodenheimer, legal realism considers the same fac -
a method of analysis, pragmatism maintains that if tors that functional j urisprudence deals with in the
there is no conceivable practical efTect of a concept or study of the nature of the law.
idea, then there is simply no point in pursuing its
analysis. In other words, the meaning of concepts or Not quite. Unlike functional jurisprudents, the
ideas is to be sought in their practical results. And legal realists are more concerned with the actual
as a method of settling conflicting or overlapping operation of the legal order in terms of the experi-
claims, demands and expectations. pragmatism insists ences and interexperiences of the people in the legal
on examining closely the practical consequences of ordering of society. For this reason, modem legal
the perceived solution. The substance of the influ- realists are not merely advocates of certain tenden-
ence of pragmatism on legal philosophy is that the cies of the functional school of jurisprudence. The
idealistic concepts of the law is impractical for it shuts modem legal realists have a philosophy of law quite
out the experiential factors that make the law throb apart from that of the funcUonal jurisprudents. 5
with life.
Legal realism has many forms. However, a tten-
tion will be focused on Justice Oliver Wendell Holmes'
But the label pragmatism fits only as far as the judicial legal realism. John Dewey's social legal re-
legal theory of this juristic school has turned away alism. Roberto Mangabeira Unger's critical legal re-
from the abstract theories of law. Even the distinc- alism. and Axel Hagerstrom's psychological legal re-
tion drawn by the legal positivists between law and
alism.
morals does not fit the emphasis given by the mod-
em realist jurisprudents on the practical consequences
48. JUDICIAL LEGAL REALISM
of the law in action.
The theory of law styled judicial legal realism is
4 7. LEGAL REALISM AS A DISTINCT characterized by a healthy skepticism for the tradi-
JURISTIC SCHOOL tional perspectives of law. Like the other aspects of
the modem legal realist school of jurisprudence.
Edgar Bodenheimer (1908-1991) views the legal
judicial legal realism doubts the positivist and tran-
realists as the radical wing of the functional school
scendentalist approaches to the problem of the na-
of jurisprudence because of their concept of the nature ture of the law in terms of what it is and what it
of the law. 3 Julius Stone is similarly minded. He
ought to be. respectively. The positivist school of
feels that the realist perspective is but a "gloss" on
jurisprudence is criticized for over-dependence on the

4STONE J., TuE PROVINCE AND FUNCTION OF l.Aw, 414. Associated


3BODENHEIMER, E .• JURISPRUDENCE: ThE PMILOSOPHY AND METI·IOD OF General Publications. Sydney.
l..Aw, 124. Revised Edition. Harvard Unlverslly Press , Cambridge. 5FRANK, J .• LAw AND 111E M oDErm M 1ND, vii. Second Edition .
Brentano·s Inc., New York.
298 LEGAL PHILOSOPHY LEGAL REAusr PERSPECTIVE 299

role of rules in the legal ordering of society. The Two great legal philosophers developed the con-
teleological school of jurisprudence is faulted for its cept of judiciaJ. legal realism and are the acknowl-
over-emphasis on the abstract po~tulates of tbe edged inspirations pf the realist scholars who came
natural law. after them. The first is Justice Oliver Wendell Holmes
of the Supreme Court of the United States. The
The judicial legal realists want a re-examination second is Professor John Chipman Gray, an esteemed
of the problem of the nature of the law in terms of member of the faculty of the School of Law of Harvard
the relation of legal rules and legal facts to the realities University.
of the modern judicial process. · .
1. Human Law and H0man Experience
A. INTELLECTUAL FORBEARS Justice Oliver. Wen~ll Holmes did not conceal
It can be said that it was the English prelate his aversion to the natural law theGry. Justice Holmes
Benjamin Hoadly, Bishop of Bangor, who dropped called the jurisprudents who accept this legal theory
the seed of judicial legal realism in a sermon he as peculiar individuals. 9
delivered in 1717 before a congregation which in-
cluded King George I. Bishop Hoadly boldly asserted Justice Holmes criticized as naive~ the idea that
that "whoever hath an absolute authority to interpret the natural law must be accepted by all on the ground
any written or spoken laws, it is he who is truly the that it is self-evident. IO Justice Holmes felt, and
lawgiver to all intents and purposes, and not the warned his students in the short period of time he
persons who wrote or spoke them. "6 was professor of law at Harvard University, that the
precepts of natural law do not lie on the surface for
Chief Justice John Marshall of the United States they are really concealed and must be dug out and
Supreme Court was probably the first to acknowl- examined.11 And even upon perusal. Justice Holmes
edge in a court decision the concept of judicial legal could not guarante~ their plausibility. He said that
realism. In a seminal decision he wrote for the Court "the ablest and purest of men have differed upon the
in 1803 in the case of Marbury v. Madison,1 Chief subject. The precepts of the natural law are not
Justice Marshall asserted that "it is emphatically the manifest but still need proof and reasoning." Justice
province and duty of the Court to say what the law Holmes was simply saying that the precepts of the
is." One hundred and sixty-one years later, this con- natural law are so abstract that people are led to
cept was reiterated by the same Court in United States
v. Nixon.8
9Holmes, O.W., The Natural Law, 32 Harvard Law Review, 40.
10ttoLMES, COLLECTED LEGAL PAPERS, 312. Harcourt Brace and
6niayer, S., The Origin and Scope of the American Doctrine of Co.. NewYork.
Consttt.utional Law, 7 Haivard Law Review, 129, 152. l lFrank. J .. Mr. Justice Holmes and Non-Euclidtan Legal
7cranch (U.S.) 137. Thinking, 17 Cornell Law Quarterly. 508.
8 418 U.S. 683.
300 LEGAL p, II l..OSOPI [Y LEGAL REALIST P EHSPECTrvE 301

conlradictory results by them. Even the a ttempt of Otherwise. as Jerome Frank explained it. "the law
Rudolf Stammler to submit a compromise theory - itself would ignore legal actuality, make men appear
the natural law with a variable content - wa s se- like angels, and reduce itself to pure geometry with
verely repudiated by JusUce Holmes. S tamrnler's ex- its axioms and corrolaries."18
planation that llie a pplication of th e precepts of llie
natural law in lhe legal ordering of society varies Justice Holmes ' warning was sorely provoked by
with the times did not impress Justice Holmes. In a an earlier dictum of Lord Chief Justice Edward Coke
letter to his youn g friend. Professor John C. H. Wu, 12 of England who stated that "reason is the life of the
who had previously called Justice Holmes' attention law, nay the law is nothing else but reason."19 Justice
to a fresh edition of Rudolf Stammler's book, 13 Justice Holmes conveyed the broader view, as follows:
Holmes dismissed Stamrnler's theory of situational
natural law as yet another attempt "to elaborate the The life of the law has not been logic, it
obvious in scholastic language."14 has been experience. The felt n ecessities of
the times, the prevalent moral and political
In his glittering diction. Justice Holmes stated theories. intentions of public policy avowed
that "the law is not a brooding omnipresence in the or unconscious, even the prejudices which
sky."15 By this Justice Holmes meant that the law judges share with their fellow men, have had
is not a divine parent keeping watch over a human a lot to do than the syllogism in determining
child. In different words, human law is human and the rules by which men should be gov-
should not amount to more than that. Therefore, for erned. 20
Justice Holmes. "the law should address human
experiences - pa st and · present.16 Since law is ·for Justice Holmes pointed in the first sentence his
human beings and about human experiences and credo that the law draws its life from human experi-
interexperiences. Justice Holmes. in exasperation. ence and interexperiences. He th en proceeded with
warned that "the law should nol be considered as a the relevant classification of such experiences and
system of reason. not a deduction from ethical prin- interexperiences in the second sentence. s tressing that
ciples. corrolaries and axioms, or what not." 17 these metalegal realities have had a more profound
effect than logic or reason in determining the rules
and regula tions governing human conduct.
l 2Ho1.M~:s-Wu b :1-!r:Hs , Shiver Collection. Boston. Mass.
13srAMMu-;H, R.. T111-: Tm:oRvm-J us-ncF., Husik1ranslation. New
York.
l 4s1 1rvEH. J .. J usno:0 1JVt:HWENDE1,1, Ho!MES, 186. Boston. Mass. 18Frank, J .. Mr. Justice Holmes and Non -Euclidean Legal
l 5Soulhem Pac ific Company v. J ensen. 244 U.S . 205. 222. 37 Thinking. 17 Cornell Law Quarterly, '572_
S.Ct. 524. 61 L.Ed. 1086. 1094. l 9coKE. E .. I INs1m .1TF..s, Section 21.
16HuHsT, J .. Jt;~mc1-: HoLM ~:s ONLF.Gl\L Tm:OJ{Y, 56. 20HolMES, O .. 1)1ECoMMON LAw. l. Little Hrown and Company.
l 7nw Pat i 1q{the Law. 10 Harvard Law Review. 457 Boston.
302 LEGAL PHILOSOPHY LEGAL REAusr PERSPECTIVE 303

It should be noted that Justice Holmes did not law. Holmes explained:
take issue with the formal role of the major and minor
premises of the syllogism in reaching his credo. He If you really want to know the nature of
emphasized that the pragmatic process of analytical law you must not take it from the point of
experience does not depend entirely on logic as Lord view of the good man who desires to do what
Coke had dogmatically stated it. Even the rational- is expected of him but from the view of the
ists themselves do not analyze or argue exclusively bad man who cares only for the conse-
from logic. For Justice Holmes, the application of quences which such knowledge enables him
the legal rules on the material facts of a case is only to predict what the courts Will do to him.21
the first of two quantities in the equation of legal
realism. The enumeration of the metalegal stimuli The proverbial bad man referred to by Justice
operating in the judicial process mentioned in the Holmes is the person who does not care about the
second sentence of Justice Holmes' jurisprudential morality or naturality of the law but worries a good
credo sees to that. deal about the results of the decision of the court on
his or her interests.
Having placed reasoq and logic in their proper
perspectives, Justice Holmes, then, dwelt on the In a brilliant lecture which Justice Holmes deliv-
pragmatic effects and consequences of the metalegal ered on the occasion of the dedication of Isaac Rich
stimuli on the judges, as follows: Hall at Ashburton Place in Boston, housing the School
of Law of Boston University, Holmes presented his
It is not the wil.l of the sovereign that concept of judicial legal realism, as follows:
makes ... the law but what the judges, by
whom it is enforced, says is his will. The The first thing for a businesslike un-
judges have other motives for decisions, out- derstanding of the matter is to understand
side their own arbitrary Will, besides the its limits, and therefore I think it desirable
command of the sovereign. And whether at once to point out and dispel a confusion
these motives are, or are not, equally compul- between morality and the law, which some-
sary is immatertal if they are sufficiently likely times rises to the height of conscious theory,
to prevail to afford a ground for prediction. and more often and indeed constantly is
making trouble in detail without reaching
Justice Holmes always cautioned his students the point of consciousness. You can see
not to rely on the formalist definition of law as a plainly that a bad man has as much reason
system of legal rules. This, according to Holmes, is as a good one for wishing to avoid an en-
a naive approach to the problem of the nature of the

21Jbld., 317.
304 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 305

counter with the public force, and therefore would somehow be misunderstood. Perhaps his con-
you can see the practical importance of a cern is partly due to the fact that he had articulated
distinction between law and morality. . . . his concept of judicial legal realism in the future
tense. But he remained unperturbed in his quest for
The confusions with which I am dealing certainty and predictability in the legal ordering of
besets confessedly legal conceptions. Take society. Thus, in a letter to Professor John C.H. Wu,
the fundamental question, what constitute Justice Holmes dismissed his critics with the ob-
the law? You will find some textwriters telling servation that their objections to his legal realism
you ... that it is a system of reason, that was based on their use of the term "law" in some
it is a deduction from principles of ethics, or different sense from that in which he used it. 2 3 Lately,
admitted axioms, or what not. ... But if you the j udicial legal realism of Justice Holmes has been
take the view of the bad man we shall find criticized by the scholastic jurisprudents and theolo-
that he does not care two straws for the gians.24 But Holmes' judicial legal realism has de-
axioms or deductions, but that he does want fenders also.25
to know what the courts .. • are likely to do.
in fact. I am much of the same mind. The 2. Separation of the Law from its Sources
prophecies of what the courts will do in fact. Professor John Chipman Gray presented his
and nothing more pretentious, are what I concept of the nature of the law in a series of lee-
mean by the law.22

For Justice Holmes, then, the emphasis is on 23HoLMES-Wu LETIERS. 158. Shiver Collection.
the transitive verb "do".· and in that sense the law 24Lucey, F. , Holmes: Liberal Humanitarian, Believer tn De-
throbs with life and activity not mainly because of mocracy?. 39 George town University Law Journal, 523; Gregg. P.,
The Pragmatism of Mr. Justice Holmes, 31 Georgetown University
logic or reason but more so by human experiences Law Journal. 262; Ford, J ., Fundamentals of Holmes ' Juristic Phi-
and interexperiences. John Dewey echoed this quality losophy, 11 Fordham University Law Review, 255; Lucey, F.,Natural
of the law as "a program for action to be tested in Law and American Legal Realism. 30 Georgetown University Law
action . . . not something that can be judged on a Journal, 493; Lucey F., Jwisprudence and the Future Legal Order.
16 Social Science Review, 211: McKinnon, H .. The Secret ofJustice
purely intellectual basis." Holmes, 36 American Bar Association Journal, 261; Palmer, B ..
Defense Against Leutathan. 32 American Bar Association Journal,
Despite the care that Justice Holmes took in 328; Palmer, B .. Hobbes, Holmes and Hitler, 31 American Bar As-
presenting his concept of the nature of the law in sociation Journal, 569.
25wyzanskJ. F., The Democracy of Justice Oliver Wendell
terms of judicial legal realism he anticipated that it Holmes, 7 Vanderbilt Univers ity Law Review, 311; Howe, M.. The
PoslttuismofMr. Justice Holmes. 64 Harvard Law Review. 529; Hart.
H .. Holmes' Positivism -AnAddendum. 64 Harvard Law Review, 929;
22 Holmes, O.W., ThePathoftheLaw, lOHarvardLaw Review, Fuller L., Reason and Flat Case Law, 59 Harvard Law Review, 376;
457, 459-460. Cf Albert v. CourtofFtrstlnstanceofManUa, 23 SCRA Rodell, F .. Justice Holmes and Hts Hecklers, 60 Yale Law Journal,
948. 620.
306 LEGAL PHILOSOPHY LEGAL REAusr PERSPECIWE 307
tures on Comparative Jurisprudence delivered at of a state lays down as definitive rules of conduct.
Harvard University. Along this Une, Professor Gray stated ..that the law of
the state or of any organized body of men is com-
Professor Gray approached the problem of the posed of the rules which the courts lay down for the
nature of the law by a complete avoidance of the determination of legal rights and duties. "28
transcendental "ought". He emphasized that the law
..is not an ideal concept but something that actually Thus, like Justice Oliver Wendell Holmes, Pro-
exists. It is not that which is in accordance with fessor John Chipman Gray emphasized ..that aforttort
nature, or religion, or morality, it is not that which whoever has the absolute authority not only to in-
ought to be but that which is. "26 terpret the law but to say what the law is, is truly the
lawgiver. "29
But. first, Professor John Chipman Gray clari-
fied the meaning of the term "law" when preceded by Unlike Eugene Ehrlich, who insisted that the
the indefinite article from the meaning which it bears courtroom is not the scene of all human life. 30 and,
when preceded by the definite article. On this Gray then, drew a distinction between legal norms and
stated: norms of decision, 31 Professor Gray said that i(any
differentiation is to be drawn, then the cut should be
Austin, indeed, defines the law as being
made between the law itself and the sources of the
the aggregate of the rules established by
law for it is absurd and nebulous to say that the law
political superiors. and Bentham says that is already present and existing in its sources. The
law, taken indefinitely, is an abstract or point. according to Gray, is which body can say with
collective term, which, when it means any- authority and finality what the law is. Thus, statutes,
thing, can mean neither more nor less than
rules and regulations, like customs and usages, are
the sum total of a number of individual laws
no more than the sources of the law. On this crucial
taken together. But this is not the ordinary point in legal philosophy, Professor Gray stated:
meaning given to the law. A law ordinarily
means a statute passed by the legislature of
While the command that legislative acts
a state. The law is the whole system of rules
must be followed is precise and peremptory.
applied by the courts. 27
the fact is that this rule, in its working. is
almost as indefinite as those which are im-
Professor John Chipman Gray then posited a
philosophy of law in terms of what the judicial organ
28GRAY, J.C .. op. cit., 88. 152.
29GRAY, J .C .. op. cit., 102. 125, 172.
26GRAv, J.C .• THE NAWRE AND SouRCES OF LAw, 84. Second
3~HRLICH, E., FuNoAMENTALPRINc1PLESOFntESoc10LOGvoFLAw, 21.
Edition, MacmUlan & Company, New York.
27GRAY, J .C .. op. cit.. 87-88. Moll Translation, Russell & Russell, New York.
31EHRLICH, E .. op. cit., 10, 41.
308 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 30 9
posed on the courts with reference to the derived by them from other sources, say from
other s ources, for, after all, it is only words former decisions of their own, or from cus-
that the legislature utters. it is for the courts . toms. 33
to say what those words mean. that is, it is
for them to interpret legislative acts. Un- The difference between John Chipman Gray's
doubtedly there are limits upon their power legal realism and John Austin's legal positivism stems
of interpretation but these limits are almost from Austin's failure to distinguish between the law
as undefined as those which govern them in and the sources of the law. Gray felt that the idea
their dealing with the other sources. of law as commands of the state is still open to further
scrutiny since it is the judicial organ of a politically
And this is the reason why legislative organized society that gives the command its true
acts, statutes. are to be dealt with as sources meaning and limits. Indeed. it is the judicial organ
of Law and not as part of the Law itself, why that has the official say as to what is or what is not
they are to be coordinated with the other law therein. The classic illustration of this is the
sources which I have mentioned. It has been different decisions given by courts of different
sometimes said that the law is composed of countries to the statute of frauds so that different
two parts, legislative law and judge-made law. peoples are under different situations. Thus, John
The shape in which a statute is imposed on Chipman Gray said, "no rule or principle which the
the community as a guide for conduct is highest tribunal of a country refuses to follow is law
that statute as interpreted by the courts. in that country."
The courts put life into the dead words of
the statute. 32 · B. CONSTRUCTIVE SKEPTICS

The realism in law of the group of jurispru-


In another part of his work, John Chipman Gray dents influenced by Justice Oliver Wendell Holmes
posited the separation of the law from its sources. In and Professor John Chipman Gray is characterized
this regard Gray said: . by a healthy skepticism about the role of rules,
facts. and judicial opinions in the legal ordering of
The first sources from which courts of society.34
any human society draw the law are the
formal utterances of the legislative organ of
the society. We can conceive of a society
with judicial but no legislative organ. 1ne
courts of such a societv would. follow rules
J . 33Ibid.. 152
34FRANK. J., I..- MEN WERE ANGELS, 276. Harper & Rowe, New
York.

32J.C. GRAY, op.c!t., 124.


310 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 311

(1) Rule Skeptics in the adjudicative process and in the prediction of


what the ocurts will do in fact. the belief that they
The telling critique leveled against the formalist
will yield the correct results or effect greater certainty
approach to the problem of the nature of the law is
in law is to be seriously doubted. For Jerome Frank,
two-fold. First. the rule skeptics question the notion
the administration of justice in the courts deals with
of the legal formalists that legal rules are precise and
complex and changing human experiences. Frank
can be applied easily in any given case. Second, the
explains why the strawman or myth of legal formal-
rule skeptics dispute the claim that legal rules by ism has been detrimental to the study of the problem
themselves dictate the result or decision of a case. If of the nature of the law, as follows:
legal rules are precise and dictate the result of con-
flicting or overlapping interests why do people not The modern mind is a mind free of child-
just apply the legal rules themselves and avoid ex- ish emotional drags, a mature mind. And
pensive court litigations? Why is it that in the ma- law. if it is to meet the needs of modern
jority of court litigations the outcome remains un- civilization must adopt itself to the modern
certain notwithstanding the legal rules? Does tWs mind. It must cease to embody a philoso-
not suggest that indeed the role of the adjudicating phy opposed to change. It must become
official is not merely to open a legal code and apply avowedly pragmatic. To this end there must
mechanically the legal rules found therein? be developed a recognition and elimination
of the carry-over of the childish dread of,
The rule skeptics feel that legal formalism has and respect for, paternal omnipotence: that
shunted to the background the relevant though inar- dread and respect are powerful strongholds
ticulate premises and uncommunicated reactions of of resistance to change. Until we become
those involved in conflicts of interests. namely. the thoroughly cognizant of. and cease to be
parties. the witnesses. the lawyers. the adjudicating controlled by. the image of the father hidden
officials. and even the community itself. 35 away in the authority of the law. we shall
not reach that first step in the civilized
Jerome Frank criticized the slavish reliance on administration of justice. the recognition that
legal rules as a throwback to the childish "father man is not made for the law but that the
complex, "36 that is to say the ominipotence or infal- law is made by and for men. 37
libility of legal rules. While legal rules are important
Thus. for people living in a politically organized
society. it is practical and reasonable to be able to
35Frank. J ., Short of Sickness and Death: A Study of Moral predict or foretell. as best they could either by
Responsibiliy in Legal Criticism, 26 New York University Law
Quarterly Review, 517.
36FW\NK, J .. l...Aw AND 11 1~: MornmN MIND, 5. Sixth Edition.
Brentano's Inc .• New Yor k. 37 Jbid.. 252.
312 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 313

themselves or better yet through the professional help (2) Fact Skeptics
of lawyers, what the adjudicative organ will do or Fact skeptics appreciate the role of appellate
likely do to them when they transgress the right of court decisions in the prediction of what courts will
others or the rules laid down by society for the or- do or likely do in fact. But fact skeptics deplore the
dering of human conduct. For example, should a overemphasis given to appellate court decisions and,
person insist that all his agreements be reduced in consequently, the lack of attention to the actualities
writing? Obviously, the answer is, not all. If this happening in the trial courts. In a different manner
be the case, then which ones? The statute of frauds of saying it, the fact skeptics feel that the major cause
provides that contracts or agreements which should of legal uncertainty is "fact uncertainty. the
be in written form are unenforceable if they are not unknowability before the decision of what the trial
reduced in writing or in some note or memorandum court will find as the facts and the unknowability after
therof and subscribed by the party sought to be the decision of the way in which it found those facts ...39
charged or by his agent and ratified. Oral agree-
ments or contracts which should have been reduced These concerns of the fact skeptics highlight the
in writing to be enforceable by action in court will need for greater accuracy in the fact- finding process
not, therefore. be enforced. It is of no moment, then, in relation to the task of predicting decisions with some
whether the rules contained in the statute of frauds amount of certainty. Indeed, this is not only a criticism
are good for the obligor or bad for the obligee so long of the capability of lawyers and courts but also a clear
as they both know, or have a notion of, what the call to the value of the personal element in the re-
results of their conduct in the premises will be. construction of past events or actual facts.
Jerome Frank agrees with John Chipman Gray Speaking for the United States Court of Appeals
that legal rules are only sources of the law. Legal rules in the case of In Re Fried. 40 Jerome Frank emphasized
tell something about the law but they do not constitute the importance of fact-finding at the trial court level.
the law itself. For the realists, law is what the court The reason for this is that the material facts of a
says it is in the concrete cases. As to past decisions, contested case are elusive past events. They do not
the legal realists make it clear that they are experiential just walk into the courtroom in pairs, one set for
guides to or precedents in the prognostication of future plaintiff and another for the defendant. To find the
actions of the courts. This means that although a good material facts from the mass of past events, courts
deal of cases will be easy and can be disposed of by have to contend with three classes of witnesses: 1)
the application of decisive rules or judicial prece- those who consciously or unconsciously select the
dents, the hard cases will no doubt require a "creative facts from past events, 2) those who are either lying
approach that goes beyond the mere applications of
rules or precedents. "38
39FRANK, J .. Ibid., xii
38FRANK, J .. op.ciL. 66. 40161 F .2d 453. 462.
314 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 315
or are honestly mistaken in narrating their recol- witness stand. There are several devices provided in
lection of past events. and 3) those who interpret the the rules of court which the parties and the judge
facts even when they are testifying about them. The may avail themselves of in determining the question
trial court must. then. decide which of the testi- of the credibility of the witnesses and the probative
monies to rely on as to the facts of a disputed case. value of their testimonies. Cross-examination. for
As a consequence, Jerome Frank stated that "the example, of the trial judge as to how he exercised his
choice of material facts is discretionary. Thus, a trial j or her fact-discretion is simply out of the question.
judge exercises fact-discretion. It, therefore, lies Thus, the decision of the trial judge may be wrong
beyond - is incapturable by - rules and is unruly. although the opinion may make the decision appear
Being unruly, it fs usually unpredictable even before to be right. 43
the lawsuit commences."
Trial court feet-finding is a difficult part of the
And this becomes another source of difficulty in adjudicative process. And being a human process by
the fact-finding process. When a court exercises fact- which an attempt is made to reconstruct "a segment
discretion in a contested case, the facts found by the of an objective past it is necessarily fallible." This
court are no longer objective facts but subjective being so. substantive legal rights may be put in jeo-
facts.41 And the difficulty of whether the subjective pardy when there is a "mis-finding of the objective or
facts correspond to the objective facts is compounded actual facts. that is to say when the trial court in the
when the contested case reaches a higher court for exercise ofits fact-discretion makes a mistake in think-
review inasmuch as the testimonies reaching the ing what the facts are or in choosing the version
appellate court are now contained in a cold, impersonal reported by the witnesses in their testimonies." Simi-
transcript of stenographic notes. As aptly obser1ed by larly, a mistake in the facts will cause an erroneous
Frank, "there is no yardstick for measuring the accu- decision. As Frank realistically puts it:
racy of the findings of the facts by a court in a contested
case"42 because there are no available means of de- This, perhaps, appear more clearly if we
termining whether the trial court is reporting correctly crudely schematize the formal theory of the
what the material facts are while in the process of decisional process. i.e.• the theory that a judi-
exercising its fact-discretion. That question can be cial decision or judgment is the product of a
determined only by knowing what actually went on in "substantive" legal rule applied to the facts
the mind of the judge in the exrecise of fact-discretion. of the case, by saying: Rx F = D. where R
This is not similar to the case of witnesses on the is the rule. F the facts, and the D the decision
or judgement. On that basis, an erroneous
Fwill lead to an erroneous D. As the F consists
41 Frank,
J., Mr. Justice Holmes and Non-Euclidean Legal of the trial court's belief as to what were the
Thtnkt~. 17 Cornell Law Quarterly. 568.
4 Frank, J ., What Courts Do in Fact. 26 11llnols Law
Review. 645. 43Frank, J .. op. cit., 660.
316 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 317

actual past facts. the F and. therefore, the D to say the role and effect of metalegal stimuli on the
will be erroneous if the court reaches its F judicial personality.
by reliance on inaccurate evidence.
A court opinion contains the rationalization of the
No matter how excellent the legal rules decision handed down in a case. The opinion provides
and the social policies they embody, specific the basis for understanding why and how a decision
decisions will go astray, absent competent was arrived at and for evaluating its significance as
fact-finding. Holmes, J ., once said that "the a judicial guideline or precedent in future similar or
only use of the forms is to present their nearly similar cases. 4 5 Thus, decisions of appellate
contents, just as the only use of a pot is to courts are consulted in many instances before trans-
present the beer and infinite meditation upon lating into positive acts the big and even the small
the pot will never give you the beer." All of determinations of conflicting claims. demands and
which, I think, goes to show that our trial expectalions.
courts should assume a large responsibility
for the ascertainment. as near as may be, of There are some troublesome aspects of decision-
the actual facts of litigated disputes. making. There are at least a set of conflicting major
and minor premises for each and every issue presented
In modern realist perspective, the evaluative by the contending parties in a litigation. Additionally.
process assumes a very important role. There is hardly lawyers representing the contending parties invariably
an act or activity that is not related to certain legal manage to present the positions of their respective
facts, that is to say facts which the legal order has clients with citations oflegal rules and legal authorities.
laid down as productive of legal effects and conse- In considering which of these contradictory premises.
quences. As Jerome Frank puts it vividly. many have rules and citations are correct or reliable. appellate
tried to advance theories of law and the legal order courts may and do make mis~kes in the process. Or
and yet they "have no clients to advise . . . who will appellate courts may disregard the briefs or memo-
be disagreeable if it turns out that while the law is randa filed by the parties and depend on their own
clear and predictable, their rights - as determined by researches. Again, in the process, courts may and do
court decisions in lawsuits involving those rights-are make mistakes. When any of these mistakes occur
not."44 the opinions of the appellate courts will not have any
value in future cases. Thus, such opinions will not
(3) Opinion Skeptics even qualify as a source of law. 46
This subject deals with the second equation in-
volved in the concept of judicial legal realism. that is
45-rraynor, R., Badlands in Apellate Courts Realm of Reason.
7 Utah Law Review, 157.
1
44FRANK, J., IF MEN WERE ANGELS, 284. Harper & Row, New 46Saarenpaa, Ahtl, Court Decisions as a Focus of Study, 28
York. Scandinavian Studies In Law, 146.
318 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 319

It is at this point that Justice Holmes' oft repeated himself. "confined from molar to molecular motion ... 50
statement that "every court opinion tends to become Differently stated, courts may exercise judicial discre-
law"47 needs some explanation. Justice Holmes tion pertaining to intersticial matters in the legal rule
should not be understood to mean that everything in question. that is to say to "molecular" rather "molar"
uttered by an appellate court becomes judicial prec- matters. As pointed out in the previous chapter. this
edents. A court's opinion may qualify to that lofty means that even the ratio decidendi of a case may be
position only under certain conditions. Only that part arrived at on the basis of molecular to molar motion,
of the opinion which addresses directly the material e.g.. contravenes existing legislation, misinterprets the
facts and the decisive legal rule to the actual issue or applicable legal rule. Thus, even the ratio decidendi
issues involved in a case can be rightly called the ratio -of a case has no jurisprudential value when it is based
decidendi of the case. Putting the matter somewhat r
on a molecular to molar motion.
differently, all the things expressed outside this narrow
area have no value at all. no matter how rhetorically C. ROLE OF MATERIAL FACTS
necessary they may be in the rationalization or dis- The concept of material facts does not refer to all
position of the issue or issues involved in the case. past acts and events. A trial judge who is himself a
It takes no argument to state that dicta. whether judex fallible witness of the witnesses called to the stand by
or obiter. do not have any value in the disposition of the litigants can only guess or infer who. if there be
the case. 48 The reason is that no court has the any, among the witnesses have accurately testified
authority to hear and decide what is not before it. Thus, about the actual past acts and events. 51 Thus. a court
regardless of kind, dicta is disowned by the ratio may disregard certain facts as irrelevant or im-
decidendl 49 material. What is more, a judge may even include so-
called "facts" which he finds necessary notwithstand-
But opinion skeptics go a step further. The ing that such "facts" may not even be part of the
rationalization of a court even when on the basis of judicial record. This is illustrated in the concu~ring
the material facts. the relevant rule and the actual opinion of Justice Ricardo Paras of the Supreme Court
issue or issues in a case may qualify as judicial prece- _of the Philippines in Peralta v. Director of Prisons. 52
dent only when it is, in the words of Justice Holmes After agreeing with the material facts stated in the
majority opinion. he assumed the "fact" of good behavior
of petitioner Peralta. and said:
47Lochner u. New York. 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed.
937.
48An obUer dictum is an expression of an opinion upon a Prisoners who behave well are almost
matter that has not been raised In a cse. (Abad u. Yance, 95 Phil. always liberated upon the expiration of the
51). On the other hand, a judex dictum is an expression of an
opinion upon a matter argued in court by the parties but is not 50.southem Pacific Company u. Jensen. 244 U .S. 221.
essential to the case. 51 Frank. J. A plea for Lawyer·Schools. 56 Yale Law Journal.
49cardozo, B.. Law and Uterature in JumsPRUDENCE IN Acr10N, 1303.
47. 5 2 75 Phil 285.
320 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 321
minimum penalty fixed in the judgment of of the law. 55 for one can give any conclusion a logical
conviction. or within a reasonable time there- form. 56 The premises must first have to be valid. that
after. In the present case. there being no -is to say based on social advantage57 before a correct
information that the petitioner has acted conclusion can be drawn. It has also been stated that
otherwise. and having served more than double general propositions are not sufficient to decide con-
the period of the minimum penalty that could flicting interests. Not only are they ambiguous, lend-
be imposed upon him, he should be released. ing themselves to either side in almost any cause. but
As this is the effect of the decision of the "they are also obtuse as to be of any use to mere human
majority. I concur in the result. beings." 58
Whether a judge considers certain facts as irrel- The point is that there are human factors involved
evant or assumes the existence of certain "facts" which in the legal ordering of society. These factors are
may not even be in the record of the case. the point unavoidable. especially in the hard cases. And it does
is that the material facts are no more or less than what not matter much that sometimes judicial legal realism
the judge say they are. 53 While there is a Bergsonian may assume a cynical shape. 59 Justice Holmes felt
element of intuition involved here. nevertheless. this that this is excusable as long as considerations ofsocial
is both a recognition of and a concession to the de- advantage are taken into account. This is exemplified
. . _mands of change in order to adjust the legal 0rdering in the case of Buck v. BeU. 60 where the demands of
to those shifts and variations. This means that until _ social advantage. in the form of a critical proposal for
the adjudicative organ has applied the legal rule to the genetic waste. figured prominently. In this case. Justice
material facts distilled from the mass of raw facts and Holmes really let his literary dagger fly.
makes a pronouncement thereon. no law on the matter
can yet be said to exist. The Buck case involved the constitutionality of a
state sterilization statute. The material facts show
D. ROLE OF EXPERIENCE AND SoCIAL ADVANTAGE that a feeble minded woman. an inmate of a mental
It has been pointed out that the law is not the institution. whose own mother was also feeble-
exclusive product of logic. 54 Indeed. law is no longer
-viewed to be a matter of simple deductive process. The
reason for this is that the law is not concluded or ended 55HoLMES. O. W .. Tl-1E CoMMON U..w. l. Little Brown and Company.
on the strength ofa major premise and a minor premise. Boston.
56Holmes. O.W.. The Path ofthe Law. 10 Harvard Law Review.
Justice Holmes warned that logic has not been the life 457. 466.
57Holmes. O.W., op. ci1. 457, 467.
GBFRANK, J., IF M EN WERE ANm:LS, 348. Harper & Row, New
53CARD<>ZO B. GHown1 OF rnE LAw. 52. Yale University Press. York.
New Haven. 59Holmes, O .W., Ideas and Doubts, In Cou.ECTED LEGAL
54Holmes, O .W .. The Path ofthe Law. 10 Harvard Law Review, PAPERSS 307.
457, 465. 0274 U.S. 200, 71 L .Ed. 1000, 47 S.Cl. 584.
322 LEGAL P HILOSOPHY LEGAL REALIST PERSPECTIVE 323

minded, and herself the mother of an illegitimate child only. It causes a great deal of other losses really in
who was also feeble-minded. In his vote upholding terms of human resources. While hemophiliacs and
the validity of the sterilization statute. Justic Holmes imbeciles may have children. it is among them that
insisted that "it is better for all the world if. instead the factor of heredity is great. And if they are en-
of waiting to execute degenerate o1Tsprings for crime couraged to beget children. then human misery would
or to let them starve for their imbecility, society can not be completely eliminated and "the cost in suffering
prevent those who are manifestly unfit from conti- would be established as a perpetual and continuing
nuing their kind. The principle that sustains compul- cost. a kind of overhead of misery. However small the
sary vaccination is broad enough to cover cutting off cost might be per generation, it would increase without
the fallopian tubes. Three generations of imbeciles limit as time went on. We can either pay the fine
are enough." promptly or we can delay or avoid payment altogether
- by paying in another way. " 61
While Holmes' opinion is no more than a reflection
of his principle of social advantage as a basis for Justice Holmes did not stop applying his prin-
solution of particular legal probl.e ms, no natural law ciple of social advantage. It is this principle that kept-....
believer would agree with Holmes for his comparison - him voting in favor of novel forms of social and econo-
of compulsary sterilization with compulsary vaccina- mic legislation so long as they were not constitutionally
tion. Thejurisprudents who believe in the natural law suspect. such as statutes setting minimum wages.
would rather compare mandatory sterilization with maximum hours of work, compulsary insurance for
homicide but not with mandatory vaccination. For the bank deposits. limitations on employment contracts.
naturalist jurisprudents. sterilization means the These, according to an observer. were measures which
mutilation of the human corpus and the destruction in Holmes' private correspondence he would probably
of the human reproductive ca pacity. if not the unifica tive characterize as "social humbug." Thus. regardless of
ability. Therefore, for naturalist jurisprudents, steri- his own feelings or attitudes. ·Justice Holmes feJt that
lization may not be performed even on a feeble-minded if the people wanted to adopt some social or economic
person. The naturalist jurisprudents would further theory other than the prevailing conceptions. that was
argue that this cannot be done even on a feeble- their own business so long as it did not violate the
minded person who has not committed any crime. constitution.

But realist jurisprudents. like biologists, argue Some of the best exposition of Holmes' theory of
that while it may be difficult to get rid of genetic waste social advantage are found in his judicial opinions. In
entirely it is to the advantage of society and even Vegelahn v. Guntner,6 2 Justice Holr:nes predicted the
humane to diminish it as much and as quickly as
possible. Otherwise. there would be no end to human
6lHARo1N, NAnJRE AND MAN's FATE, 189. Jonathan Cape & Co.,
misery. A lethal gene does away with human waste London.
or suffering in a single stroke. But a sublethal gene 62 44 N.E. 1077
unfortunately diminishes mental and physical h ealth
LEGAL REALIST PERSPECTIVE 325
324 LEGAL Pl·IILOSOPI IY

movement away from the early policy of condemning decide whether a particular social welfare legislation
peaceful picketing as an illegal labor concerted activ- is constitutional or sound economic policy. For Justice
ity. 63 He said: · Holmes. the lawmaking body should be free to
choose between the competing principles. Consider
The true ground of decision are consid- the language Holmes used in this case in expressing
erations of social advantage. and it is vain to and applying his concept of social advantage:
suppose that solutions can be attained merely The case is decided upon an economic
by logic and general propositions oflaw which theory [advocating that the state should
nobody disputes. Propositions as to public allow free market without interference from
policy rarely are unanimously accepted, and the state] which a large pp.rt of the country
still more rarely. if ever. are capable of un- does not entertain. ~fit were a question of
answerable proof. They require a special whether I agreed with that theory, I should
training to enable anyone even to form an desire to study it further and long before
intelligent opinion about them. making up my mind. But ... I strongly believe
that my agreement or disagreement has
In thecaseofLochnerv. New York,64JusticeHolmes nothing to do with the right of a majority to
expresed the basis of his theory of social advantage. embody their opinion in law. It is settled by
There he stated that a "constitution . . . is made for various decisions of this court that state con-
fundamentally dilTeringviews." Echoing Justice Holmes. stitutions and state laws may regulate life in
Learned Hand said that "a constitution is a great many ways which ... we might think inju-
historical compromise and not a set of durable prin- dicious. or ... which interfere with the liberty
ciples." to contract. Sunday laws and usury laws are
ancient examples. A modern one is the
In the Lochner case, a statute, prohibited bakery prohibition of lotteries. The liberty of the
employees from working more than ten hours a day. citizen to do as he likes so long as he does
The petitioners were caught in the middle of two com- not interfere with the liberty of others to do
peting general principles. namely. the right of the the same ... is interfered with by ... every
government to enact statutes protecting the health, state or murlicipal institution which takes his
safety and welfare of the people on the one hand, and money for purposes thought desirable. whether
the freedom of individual persons to enter into con- he likes it or not. The 14th Amendment does
tracts concerning their own labor. on the other hand. not enact Mr. Herbert Spencer's Social Statics
In his stirring dissent. Justice Holmes said that general [advocating the idea that every person is free
propositions or competing market theories do not to do which he or she wills, provided it does
not infringe on the equal freedom of another] .
. . . The decision sustaining an eight-hour law
63People v. Fisher, 14 Wend. 10.
64198 U .S. 45. 25 S.Ct. 539. 49 L.Ed. 737.
for miners is still recent. Some of these laws

11
326 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 327
embody convictions or prejudices which judges no doubts of your premises or your power
are likely to share. Some may not. But a and want a certain result with all your heart
constitution is not intended to embody a you naturally express your wishes in law and
particular economic theory. whether of pater- sweep away all opposition. To allow oppo-
nalism and the organized rela lion of the cilizen sition by speech seems to indicate that you
to the slate or laissez faire. It is made for think the speech impotent. as when a man
people of fundamenlally diITering views. and says that he has squared the circle, or that
the accident of our finding certain opinions you do not care wholeheartedly for the result,
natural and familiar, or novel and even or that you doubt either your power or your
shocking. ought not to conclude our judg- premises. But when men have realized that
ment upon the question whether statutes time has upset many fighting faiths, they
embodying them conflict with the consti tu tion may come to believe even more than they
of the United States. believe the very foundations of their own
conduct that the ultimate good desired is
In the case of American Banana Company v. United better reached by free trade in ideas - that
Fruit Company. 65 Justice Holmes expressed his realist the best test of truth is the power of the
view of the law as the expression of the social force thought to get itself accepted in the compe-
and experience upon human activity in a politically tition of the market and that truth is the only
organized society. There he declared: ground upon which their wishes safely can
Law is a statement of the circumstances be carried out. That at any r.ate is the theory
in which the public force will be brought to of our Constitution. It is an experiment. Every
bear upon men through the courts. 66 year. if not every day. we have to wager our
salvation upon some prophecy based upon
In Abrams v. United States. 67 Justice Holmes imperfect knowledge. While that experiment
articulated even more his theory of social advantage is part of our system. I think that we should
and the current considerations of policy as a lever in be eternally vigilant against attempts to
the modem judicial process. He was skeptical too check the expression of opinions that we
about man's ability to discern absolute truths. He said: loathe and believe to be fraught with death.
unless they so imminently threaten imme-
Persecution for the expression of opin- diate interference with the lawful and press-
ions seems to me perfecUy logical. If you have ing purposes of the law that an immediate
cneck is required to save the country. I regret
652 . that I cannot put into more impressive words
13 U.S. 356. 53 L.Ed. 826.
6 6Seventeen years later he reiterated this view In his letter my belief that in their conviction. the defend-
to Dr. John C.H. Wu. HOLMES-Wu L ETTF;RS, 157. Shriver Collection, ants were deprived of their rights under the
Boston. Constitution of the United States.
67250 U.S. 616, 40 S .Ct. 17. 65 L.Ed. 1173.
328 LEGAL Pr-nwsoPHY LEGAL REAL1sr PERSPECTIVE 329

And In his vivid opinion filed in n-uax v. Carrigan. 68 judgement of the hard cases. It cannot be gainsaid
Justice Holmes again expressed his realist view that that metalegal factors have a considerable effect on,
the life of the law has not been logic but human even as legal rules play their part in, the judicial
experience in terms of social advantage. He said: process. even regardless of the circumstances that the
facts involved are similar or nearly similar.
There is nothing that I more deprecate
than the use of the Fourteenth Amendment (1) Formalist Concept
beyond the absolute compulsion of its w?rds The formalist concept of the judicial process is
to prevent the making of social experiments characteristic of the positivist perspective of the nature
that an important part of the community of the law. Legal formalism is criticized as a simplifi-
desires, in the insulated chambers afforded
cation of legal reasoning. In this rigid model. the
by the several states. even though the ex- decisive legal rule serves as the major premise. the
periments may seem futile or even abnoxious material facts constitute the minor premise. and the
to me and to those whose judgement I most decision is reached strictly by deductive reasoning. In
respect. other words, decisions are said to inevitably follow on
the basis of stare decisis.
E. ROLE OF MATALEGAL STIMULI

When Justice Holmes expressed his striking con- (2) Modern Realist Concept
cept of law as the "prophesies of what the courts will To the modern legal realists. the formalist concept
do in fact and nothing more pretentious", and when of the adjudicative process is nothing but "mechanica1"
John Chipman Gray articulated his telling analysis
jurisprudence. Justice Holmes, in particular, con-
that "the law is the whole system of rules applied by
demned this "black and white" approach as simplistic
the courts and that a law or a statute is only a source
and warned that in the adjudicative process "what the
of the law", they opened a broad field of jurisprudent-
courts will do in fact is not achieved only by the
ial investigation. Justice Holmes and Professor Gray
interaction ofthe rules on the facts. "69 The law. explained
posited t.he idea that rather than examine what the
Justice Holmes, "is more rational and more civilized
courts say. it is better to investigate what they really when every rule it contains is referred articulately and
do or what they will do in fact. Thus, attention is definitely to an end which it serves. and when the
focused on the empirical factors which underlie the
grounds for desiring that end are stated or are ready
judicial process. Stress is given to the predictory use
to be statd in words."70 Here Holmes was positing the
of court decisions in light of the influence exerted, in
a fairly uniform manner. by certain metalegal factors
on the adjudicating officials, whenever they sit in 69American Banana Company u. United Fruit Company. 213
U.S. 356, 58 L.Ed. 826.
70Holmes. O.W., The Path ofthe Law, 10 Harvard Law Review,
68257 U.S. 312. 42 S .Ct. 124, 66 L.Ed. 254. 457, 467. Justice Holmes gave some Illustrations of mistakes as
a result of the formal legal approach.
330 LEGAL PHILOSOPHY LEGAL REAL1sr PERSPECTIVE 331

view that there are certain metalegal stimuli at work cases. e.g.• where the applicable rule or rules appear
in the adjudicative process. In different words. the indeterminate: wbere a prior decision is to be reversed,
application of rules on the material facts of a case is modified, or discarded: where a prior decision is likely
but one of two quantities in the equation of legal to be established apart from legislation; or where a rule
realism. Since the law, explained Justice Holmes, "is or principle stands to be ignored. Thus, courts have
the statement of the circumstances in which the public divided and will continue to divide in deciding conflict-
force will be brought to bear upon men through the . ing or overlapping interests even when the same legal
courts, "71 then, added Justice Benjamin N. Cordozo rule is applied to the same or nearly similar facts.
of the United States Supreme Court, "no system of Indeed, courts have viewed or may view a problem one
living law can be evolved only by the interaction of rules way at one time and in a different way at another time.
on the facts and no judge of a high court worthy of
his office will view the function of his office so nar- If an illustration is necessary. take the question
rowly. "72 of whether the right of free expression, that is to say
speech and press, can be suppressed or not.
Justice Holmes' credo is repeated here to empha-
size the role of metalegal stimuli in the judicial process: In 1923, this issue reached the Supreme Court
of the Philippines in the leading case of People v. Perez. 7 4
The life of the law has not been logic, it With three Justices dissenting, the majority. speaking
has been experience. The felt necessities of through Justice George Malcolm, held that the words
the times, the prevalent moral and political used by the accused Perez in maligning the American
theories, intentions of public policy avowed chief executive in the person of General Leonard Wood
or unconscious, even the prejudices which can he suppressed because of their dangerous ten-
judges share with their fellow men. have had dency. The words used were more than a shape of
a good deal to do than the syllogism in de- speech for there was "a seditious tendency in the words
termining the rules by which men should be used. which could easily produce disaffection among
govemed. 7 3 the people with a disposition to remain loyal to the
government and obedient to the laws. . . . Perez made
The role of the metalegal stimuli in the judicial a statement . . . which tended to instigate others to
process is especially true in the adjudication of the hard cabal and ... to disturb the peace of the community
and the safety and order of the government." This view
was reiterated in the cases of People v. Feleo75 and
People v. Nabong. 76
71American Banana Company v. United Fruit Company, 213
U.S. 356, 58 L.Ed. 826. Emphasis supplied.
72cARDOzo, B.. TllE NATUHE or 111E Juo1c 1AL PnocESS, 19. Yale
7 475 Phil. 599.
University Press, New Haven. Emphasis supplied.
73HoLM1;:s, 0., THE CoMMON LAW, l. Little Brown & Com- 7557 Phil. 451.
76 57 Phil. 455 .
pany. Boston.
332 LEGAL PHILOSOPl-N LEGAL REALIST PERSPECTIVE 333
A quarter of a century later. the same question illegal methods other than those provided by the
was again raised in the Supreme Court in the case constitution in order to repress the evils which press
of Primicias v. Fugoso. 77 In the meanwhile, that is to upon their minds."
say by 1946, the composition of the Supreme Court
had changed from a colonial court to a national court. Six years after the Espuelas case, the Supreme
Jn the Primicias case. Mayor Valeriano Fugoso of the Court was again called upon to rule on the same issue
city of Manila refused to issue a permit to the in the case of American Bible Society v. City ofManila. 79
Coalesced Minority Parties to hold a public meeting While the problem in this case pertained to the free
for the purpose of petitioning the government for a exercise and ertjoyment of religious profession and
redress of grievances. The mayor feared that the religious worship, the Court was afforded with
speeches to be delivered by this defeated group might another opportunity to deal with the problem of
undermine the faith and confidence of the people in whether the right of free expression can be supp-
their government and thus breach the peace and dis- ressed or not. An ordinance of the city required the
rupt public order. In refusing to see merit in this plaintiff, who is engaged in translating. distributing
contention. the Supreme Court. speaking through and selling bibles and other religious literature in the
Justice Felissimo Feria. discarded the dangerous-ten- Philippines. to secure a permit and pay certain license
dency rule of the previous cases and adopted the fees. In ruling that the city ordinance cannot be
Holmesian clear-and-present-danger rule and held applied to the plaintiff. the Court held that to require
that "fear of serious injury cannot alone justify sup- the plaintiff to secure a permit and pay license fee
pression of free speech and assembly [and] to justify would impair its full exercise and enjoyment of
suppression of free speech there must be a reasonable religious information.BO And so. once again, the
ground to believe that the danger apprehended is Supreme Court moved away from the dangerous-ten-
imminent [and] that the evil to be prevented is a serious dency rule, holding that if this freedom could be
one." restrained, such restraint could be justified. like other
,, restraints on freedom of expression, only when there
Three years later. the same problem was once is a clear and present danger of the substantive evil
more raised in the Supreme Court in the case of which the state has a right to prevent.
Espuelas v. People.78 By a 6-to-3 vote, the Court,
speaking through Justice Cesar Bengzon. discarded Six months later. in the case of Cabansag v.
the clear-and-present-danger rule and returned to the Fernandez. 81 the Supreme Court. in an unprecedented
dangerous-tendency rule, holding that "the language
used tends to stir up general discontent to the pitch
of illegal courses. inducing the people to resort to 79101 Phil. 386.
801n Wilmar u. Vincent, 454 U.S. 269, it was held that religious
freedom Including worship and the exercise thereof are forms of
77so Phil. 11. speech and association protected by the constitution.
78go Phil. 524. 81102 Phil. 152.
334 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 335
move, made use at the same time of the dangerous- difference between the legal rules and the same rules
tendency rule and the clear-and-present-danger rule. tested in action, just as there is a good deal of
It is to be noted that it has long been regarded in difference between the facts parading before the trial
constitutional law that these rules are quite distinct courts and the facts found by the courts. No study
from each other. in jurisprudence can afford to disregard the metalegal
factors in the ordering ofhuman conduct and experience.
In view of these contrasting decisions, what, then, Undoubtedly. for the judicial legal realists. there is a
is the law on the issue of whether freedom of speech human equation in the life and process of the law.
and press can be suppressed or not?
Legal rules and material facts constitute only one
John Chipman Gray, in dealing with a similar of two quantities that make up the law. The second
question on the role of the metalegal stimuli in the quantity is composed of the metalegal stimuli which
judicial process, puts it strikingly this way: play a silent but no less important role in the judicial
process. They provide not only the means for creative
Take an instance from the constitutional thinking but also the setting and justification for the
law ofthe United States. suppose ChiefJustice play and action of what Holmes called "experience and
Marshall had been as ardent a democrat (or social advantage."
republican, as it was then called) as he was
a federalist. Suppose. instead ofhatingThomas However.judicial discretion and metalegal stimuli
Jefferson and loving the United States Bank.
Marshall had hated the United States Bank do not actually come to play in all types of cases. There
and loved Thomas Jefferson, how different are problems involving human activities which do not
would be the law under which we are living provoke the exercise of judicial discretion. If. for
today. 82 example. a will, other than a holographic will, is
presented for probate. having the attestation of only
I ~ Commenting on a similar predicament. Jerome one witness. then Article 805 of the Civil Code of the
Frank, in the tradition of Holmes and Gray aptly stated Philippines. which requires at least three credible
that the answer would have varied according to the attesting witnesses. will have to come into full appli-
date when the question was asked. the composition cation. The result would be the denial of the will which
of the Court. and the shifting opinions of its members. in all other respects is valid. Prediction in this class
of cases as to what the ocurts will do in fact is easy.
The point for the modem realist approach is fuat
there are indeed certain unavoidable metalegal (3) Metalegal Factors
factors operating on the judicial personality of the Examination of the metalegal factors affecting the
adjudicating officials. There is simply a great deal of judicial process is not merely a matter of curiosity. It
is a serious jurisprudential issue. Judicial legal realism
82FRANK, J., op. cit .. 226. investigates the conflicts of interests in light of their
336 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 337

setting. is part of wisdom." It is not surprising that a judge in


arriving at a decision in the hard and important cases
This is where the functional perspective and the should be influenced or aided by metalegal factors.
modern legal realist perspective differ from each other.83 Their importance in the adjudicative process lies in
Functional jurisprudence insists that courts are to think the reality that decisional behavior is very likely to be
in terms of the jural postulates, the social interests affected by them. obscurely or articulately. uncon-
derived therefrom. and the national policies expressive sciously or avowedly. Thomas Reed Powell feels that
or indicative of such social interests. In emphasizing these metalegal factors may even result in illogical and
the interest of society, functional jurisprudence is criti- paradoxical ("vagaries" and "varieties" Powell respectively
cized by modem legal realists for virtually disregard- calls them) approaches to decisions in the hard cases.86
ing the metalegal factors that unavoldably affect the
judicial process. 84 Even personal values and attitudes It should not be a cause of wonderment. then, that
of judges influence their legal interpretations and ac- a judge will act or decide first and justify his or her act
tions. There is need to deal even with the general and or decision afterwards. Since all persons are more or
legal education, economic status, social and religious less partisan, then, "emotions, great or small, compel
background, legal and political views. intellectual the judge to choose his side. . . . When that choice is
inclinations, and temperamental traits of judges. It made, historical events. social and economic facts,
would be very difficult for judges to get away from judicial precedents, and legal philosophy are
certain factors which their training and habits have marshalled and emphasized in such a way as to
become parts of their lives. Indeed, "ignorance, prejudice, bolster the judge's viewpoint. "87
accidents of experience, favor, indolence, corruption,
have had a good deal to do with law and how the law In People of the Philippines v. Judge Eusebio
.' works in the community."85 As living, willing human Lopez,88 the Supreme Court of the Philippines, speaking
beings judges cannot emancipate themselves from through Justice Gregorio Perfecto, recognized the role
such factors. of metalegal stimuli in the judicial process:
There cannot be any question that the
Metalegal factors affecting judicial personality are reglementary mandate [of Rule 124, Section 1)
not undue matters. that is to say they are not derogatory that ]ustice shall be impartially administered"
of the judicial functions unless. of coUPSe, they are implies that those who are called to administer
immoral. As Jerome Frank puts it, "to recognize them
t
83Frank, J. What Courts Dot~ Fact, 26 Illinois Law Review,
645. 655. 86PowEu., T .. VAGARIES AND VARIETIES IN CoNSTmJJlONAL INTERPRE-
84FRANK, J .. IF MEN Wt.:ru: ANGELS, 100. Harper and Row. New TATION. Columbia University Press, New York.
York. 87POLL.OCH, n-u: BRANDIES REAOf; R, 83. Oceana Publications, New
8~u.YN, K.. TI1E BRAMBIE Bus11, 91. Oceana Press Publica- York.
Uons. Inc .• New York. 88 78 Phil. 286.
338 LEGAL p, llLOSOPI IY LEGAL REALIST PERSPECTIVE 339

it must act freely from all factors that may "partiality" be defmed to mean the total ab-
impair their impartiality. Bias is one of them. sence of preconceptions in the mind of the
It deprives the person shackled by it of the judge, then no one has ever had a fair trial and
opportunity to have a clear view of the pending no one ever will. The human mind, even in
issue so as to form a sound judgment and of infancy. is no blank piece of paper. We are
the freedom of choice between right and wrong born with predispositions: and the process of
in a given litigation. education, formal and informal. creates atti-
tudes in all men which affect them in judging
However. not all bias is harmful. No judge
is required lo be free from all.kinds of prejudice. situations, attitudes which precede reasoning
in particular instances and which. therefore.
To make that requirement is to attempt an
by defmition, are prejudices. Without acquired
impossibility. No son of a woman is free from
slants. preconceptions. life could not go on.
all prejudice. It is impossible to fmd a person
Every habit constitutes a prejudgment: were
who can be absolutely impartial on everything.
those prejudgments which we call habits
All judges have their prejudices. Each and
absent in any person. were he obliged to treat
everyone of the Supreme Court entertains some
every event as an unprecedented crisis pre-
kind of prejudice. whether polllical. moral,
sentinga whollynewproblem, hewouldgomad.
religious. artistic. economic, legal. or otherwise.
Interests. points of view. preferences, are the
Each one of us is the child of our past personal
essence of living. Only death yields dispas-
experiences. surroundings. education, train-
sionateness, for such dispassionateness sig-
ing. associations. and each one of these tends
nifies utter indifference. To Uve is to have a
lo create some kind of prejudice.
vocation, and to have a vocation is to have an
ethics or scheme of values. and to have a point
In the clearest expression yel of the modem realist
of view is to have prejudice or bias. . . . An
thinking on the role of the metalegal stimuli in thejudging
'open mind,· in the sense of a mind containing
11 process. which is quoted al length. Jerome Frank.
no preconceptions whatever, would be a mind
speaking for the Court of Appeals of the United States
incapable of learning anything. would be that
in the case of In Re J.P. Linahan.89 said:
of an utterly emotionless human being, cor-
responding roughly to the psychiatrist's de-
Democracy must. indeed fail unless our
scription of the feeble-minded. More directly
courts lry cases fairly. and there can be no fair
to the point. every human society has a
trial before a judge lacking in impartiality and
multitude of established attitudes. unques-
dlsinlere3ledness. If. however. "bias" and

89 138 F. 2nd 650. The case involved U1e question of whether


entertain a fundamentally false notion of the prejudice which dis-
the Judge had ·~e n biased. 1ne Cowi ru led th<" 1 ·the appellants qualifies a Judicial officer.•
340 LEGAL P1 llLOSOPHY LEGAL REALIST PEHSPE:CTIVE 341
tioned postulates. Cosmically. they may seem machine. . . . The j udge's decision turns often
parochial prejudices, but many of them rep- on what he believes to be the facts of the case.
resent the community's most cherished values As a fact-finder, he is himself a witness - a
and ideals. Such social preconceptions, the witness of the witnesses: he should, therefore,
value judgments which members of any given learn to avoid the errors which because of
society take for granted and use as the un- prejudice often affects those witnesses.
spoken axioms of thinking, find their way into
that society's legal system, become what has Jerome Frank felt that it is foolish to look down on
been termed the valuation system of the law. or be ashamed of an otherwise natural or human elem-
The judge of our society owes a duty to act in ent in the judicial process. There is really no reason
accordance with those basic predilections in- why there should be any pretense to be other than a
hering in our legal system (although. of course, human being. Frank explained:
he has the right at times, to urge that some
of them be modified or abandoned). The stand- They have put the best things to the most
ard of dispassionateness obviously does not evil uses. But that personal element, whether
require the judge to rid himself of the un- one likes it or not. is an inherent part of the
conscious influence of such social attitudes. decisional process under any form of gov-
ernment. It is, therefore, folly to conceal its
In addition to those acquired social value presence in the workings of courts in a democ-
judgments. every judge, however. unavoidably racy. To conceal it, indeed, is to ensure that
has many idiosyncratic 'leanings of the mind,' it operates at its worst surreptitiously. . . .
uniquely personal prejudices, which may in- Here, as elsehwere, we must distinguish the
terfere with his fairness at a trial. He may be desirable and the possible. The wise course
stimulated by unconscious sympathies for, or is openly to acknowledge the personal element.
antipathies to. some of the witnesses. lawyers and then to do whatever can practically be done
or parties in a case before him. . . . In Exparie to get rid of its evils and to bring about its
Chase, 43 Ala. 303, Judge Peters said .... constructive uses. For the rest. we shall have
trifles, however ridiculous, cease to be trifles to put up with it, however bad, as we do with
when they may interfere with a safe admin- ineradicable sickness and death.90
istration of the law. Frankly. to recognize the
existence of such prejudices is the better part The role of the metalegal stimuli further explains
of wisdom... . Much harm is done by the myth why legal journals and law reviews have a somewhat
that merely by putting on a black robe and dillerent task to perform everytime a new member of an
taking the oath of office as a judge, a man ceases
to be human and strips himself of all predi- 9
lections, becomes a passionless thinking ~HANK, J .. Modem andAncientLegalPragmatism: John Dewey
/I & Company v. Aristotle, 25 Notre Dame Lawyer, 207, 491.
342 LEGAL P1 llLOSOPI !Y LEGAL REALIST PERSPECTrvE 343
appellate court is appointed. Indeed. one of the points and significant in the judicial process. But there seems
that should be considered in the elevation of a person to be no way by which the honesty of the witnesses can
to a high ju dicial position is a complacent mind because be ascertained by the judges. Indeed, judges have
this is a dangerous mind. disregarded portions of testimonies yet give credence
to the portions thereof which they believe to be
The meta.legal factors that may stimulate a j udge consistent with the facts. But the facts are precisely
are those set by the witnesses. by the lawyers, by the the matter in dispute. Thus, even when the witnesses
judge's legal attitudes and prejudices, by the judge's have falsified their testimonies on some particular
predilections and preconceptions. by historical events matters. it does not necessarily follow that their entire
and political precedents, and by current economic testimonies are discredited. Judges may and do credit
postulates and social values. those portions of the testimonies of witnesses which they
deem worthy of belief. 92 In the case of In Re Fried 93
The first two and last two metalegal stimuli are Jerome Frank. speaking for the United States Court of
environmental in character. Ajudge is surrounded by Appeals. stated in this regard that "in each lawsuit that
them. The two middle metalegal stimuli make up the choice of what is deemed reliable testimony depends
personal element and are predispositional in character. upon the unique reaction of a particular trial judge to
A judge has them even when he or she is not holding the particular witnesses in a particular case."
court or deciding cases.
And so it is that a witness may be trusted implicitly
(a) Stimulus Set by the Witnesses or be considered honest by one Judge and be treated
a rascal by another. The fact. then, that a party has
It has been said that the witnesses in court con-
witnesses is not the important thing but whether the
stitute the axis on which the decision of the judge may
turn.9 1 judge will believe those witnesses. In judicial legal
realism. the truth may not always come out. and
neither is there any assurance that the judge will
The oral testimony is one of the means u Ulized by
believe the witnesses even when they tell the truth.
the contending parties in the litigation of conl1icting
Perhaps there should be training of some kind for
interests. The stimulus set by the witnesses on the
trial judges in the behavioral sciences or allow the use
judge is principally the result of their statements, ges-
of the tools of behavioral science in order to help them
tures. manners. moods. hesitation. embarrassment.
in the evaluation of the testimonies of witnesses.
grtmices. Indeed, the "tongue of the witness is not the
only organ for conveying testimony." The demeanor of
The reality of this type of stimulus on the judicial
the witnesses while on the witness stand is revealing
personality is recognized in a rule of evidence which

9loavtdson.J .. Tesl imonialCapactly, 39Boston University Law


92peopfe v. Molillos, 24 SCRA 133.
,, Review. 172.
93 16 1 F .2d 453, 462.
l •

344 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 345

gives great weight to the findings of judges on the girl would charge a man of rape, as a face-saving device
credibility of the witnesses who have appeared before rather than admit that she willingly submitted to the
them. Thus, unless there is a flagrant violation, appel- act. Thus, a judge may make a mistake on his or her
late courts do not disturb the trial judge's findings on hunch or guess and yet proceed to decide the fate of
the matter of credibility of witnesses. a life or integrity that hangs on the balance.

If this were the only matter involved in this parti- (b) Stimulus Set by the Lawyers
cular metalegal factor, then the task of the courts would The metalegal stimulus set by lawyers are
not be difficult. But something more than the witness' generally in two directions. One has to do with pro-
credibility in terms of whether he is a rascal or not is fessional reputation and the other with professional
involved. As pointed earlier, Jerome Frank skillfully bearing.
draws attention to the fact that there is a great deal of
uncertainty concerning the capacity of a witness to With regards to professional reputation, two areas
observe the facts or events clearly, to remember them are further involved. The first is the lawyer's sincerity
with some degree of accuracy, to make known their and inclination for the "right" and "fair" cases. The other
memories in a coherent manner. Frank stated that "the is the intrinsic validity of the lawyer's theory of a case,
witnesses, being human, may make mistakes in their his arguments on the law and the material facts in-
original observation of the facts, in their memories of volved.
what they thus observed, or at the trial in their reports
of their memories. Some witnesses delibertaly lie. many Concerning the influence of professional bearing.
others are biased, and, because of bias. unconsciously it can be said that this stems more from the lawyer's
distort their stories. Trial judges who are themselves respect and regard for his own responsibilities as an
merely fallible human witnesses of the witnesses must officer of the court. However. they are very rarely taken
guess who accurately testified about the actual past into account. A judge will try her or his best to overlook
facts."94 Ajudge cannot afford to make a mistake by them, for as long as this can be done. without exposing
• allowing too much latitude to a lawyer in testing the the court to embarrassment and public ridicule. In the
credibility of a witness in terms of the latter's motives event that they have to be considered, judges try to do
or partisan attitude as to amount to a psychiatric inquiry so without affecting the merits of the controversy by
into the unconscious drives of a witness testifying in considering such violations directly with the lawyer
court. When it gets to this point, the problem of the himself in the form of contempt citation or suspension.
right of privacy versus the need to get at the truth from the practice of law. In case of suspension a higher
arises.95 It is not difficult to see, then, why an unmarried court usually takes a hand, for this is.generally a ground
for disbarment proceedings.
94Frank. A Pfeafor Lawyer-schools, 56 Yale Law Journal. 1303. (c) Stimulus Set by the Judge's Legal Attitudes
95ttafflnger. Psychtatrlc Evaluation of the Mentally Abnormal
Witness, 59 Yale Law Journal, 1324. and Prejudices
If I
346 LEGAL PHJLOSOPJ IY LEGAL REALIST PERSPECTIVE 347

Legal attitudes and prejudices affect judicial per- Justice Gregorio Perfecto's predilection for human
sonality. This metalegal stimulus does not mean par- rights is well-known in the Philippines. It is an area
tiality nor distortion of the 1.hinking of a judge. It should where he was deeply outspoken all too clearly reflecting
not be considered as a prepossession of any sort under his legal sympathy for the protection of civil rights and
which anyone or anything is already prejudged. The liberties. regardless of whether or not over-protection is
legal attitudes of a judge are really the sum of his or error. Indeed, Justice Perfecto considered it his lofty
her inclination or bent on lhe matter in dispute. It is duly and responsibility to uphold human rights against
not abnormal for a judge to have such mental stale or claims of legislative supremacy and adverse govern-
disposition, nor is it unnatural that a judge will have mental action. He was unusually sensitive to issues in-
them. Indeed a judge is not any less amenable to other volving human rights.
kinds of atuludes than any of lhe members of society.
Putting on a judicial robe does not place a halo over the In the Supreme Court of the United States. Justice
judge's head. Jerome Frank explained it clearly that Frank Murphy had a similar predilection. During his
to recognize lhis melalegal stimulus is part of wisdom. ten years in the court he established himself as the most
consistent defender and eloquent advocate of human
(d) Stimulus Set by the Judge's Predilections rights. Said he in one case: "If this Court is to err in
and Preconceptions evaluating claims lhat freedom of speech, freedom of
the press. and freedom of religion have been invaded,
This type of metalegal stimulus appears in two far better that it errs in being overprotective of these
forms, namely. the judge's legal sympathies and legal precious rights."98 Justice Murphy cast only one vote
antipathies. against human rights and this occurred in the famed
Gobitis case99 but twice repented it in the equally
Legal sympathies are strong likings which arise famous OpelikalOO and BamettelOl cases. No wonder
from a judge's community of experience. education. Jerome Frank called Justice Murphy a civil liberties
interests. and even temperament. It is not irregular that Justice.102
a judge should sympathize wilh a cause which is nearest
his or her own views. Sometimes lhe answer to a grave The Opelika case involved the sale of religious
or important question may depend on judicial predi-
lections and preconceptions.96 Indeed. Chief Justice
Earl Warren of lhe Supreme Court of the United Slates 98Jones v. City of Opelika. 316 US. 584, 623, 86 L.Ed. 1691.
"views his role as 'sterrtng the law' rather than being 1715, 62 S . Ct. 1231. 1251.
steered by it. "97 99Minerswille School District v. Gobitis, 310 U.S. 586, 60 S.Ct.
l 0 l 0, 84 L.Ed. 1375.
1 OOSee n. 99, s upra.
1 Ol West Virginia S taie Board ofEducation v. Barnette, 310 U.S.
96Illinois ex rel McCollum v. Board of Education, 333 U.S. 203, 624, 63 S. Cl.. 1178, 87 L.Ed., 1628.
238, 92 L. Ed. 649. 672, 68 S. Ct. 461. 478. 102Frank, J., Justice Murphy: The Goals Attempted, 58 Yale
97""'--
J "'""· June 25, 1956, p. 15.
Law Journal, 1.
"'
348 Lf'::CAL Pl llLOSOPI IY LEGAL REALIST PERSPECTIVE 349

tracts and pamphlets by the Jehovah's Wilnesses. theory moving him to say "that jurists who believe in
Justice Stanley Reed who penned the majority opinion. the natural law seem to be in that naive state of mind
characterized this activity as more of a commercial that accepts what has been familiar and accepted by
transaction than an exercise of religious freedom. The them and their neighbors as something that must be
majority felt that the activity involved solicitation of accepted by all men everywhere." 103
contributions and. hence. money-making. requiring
payment of a license tax. Justice Frank Murphy filed To repeat for emphasis what Jerome Frank said,
a vigorous dissent. After emphasizing that lhe solicitation "the mind of a judge is plainly not a blank sheet of paper.
of money was made without thought of gain but only It is a store of legal sympathies and legal antipathies
in exchange for religious literature to defray the evan- acquired in the process of maturing and education."
gelist's expenses to sustain him in his ilenerant ministry, But these metalegal stimuli come into operation only
Justice Murphy repudiated the earlier position he took because certain issues strike familiar notes thereby
in the Gobitis case by saying that "the holding of the setting the judicial tone that distinguishes a judge as
Court sanctions a device which in our opinion sup- to whether he is a conservative or a liberal. This explains
pressed or tends to suppress the free exercise ofreligious also why judges issue dissenting and concurring
practice by a minority group." By further admitting that opinions in court decisions.
lhe Gobitis case "was also wrongly decided" Murphy
asked for a more realistic examination of the decision (e) Stimulus Set by Historical Events and
laid down in that case. In lheBamettecase, whichfmally PoUtical Precedents
overruled lhe Gobilis decision. Justice Murphy filed a The metalegal stimuli set by historical events and
concurring opinion where he said. in overturning his own political precedents. while generally transient are. none-
vote in the Gobitis case. that "official compulsion to affirm theless. decisive in the judicial process. This is specially
what is contrary to one's religious belief is the antithesis true in the great constitutional questions. e.g., delegation
of freedom of worship which was achieved in this country of legislative power. vested rights. due process of law.
only after what Jefferson characterized as the 'severest equal protection of the law. civil liberties.
contest in which I have ever been engaged."'
An illustration of the struggle that goes on in the
Legal antiphathies, on the other hand. are settled judging process in which this particular metalegal
aversions or dislikes for certain legal or political theories factor played a decisive role is furnished by the re-
or ideas. Again, it is not inconceivable that a judge nowned Gobitis case. The Supreme Court of the United
should oppose or dislike those that are farthest from States. in an 8-to- l decision, ruled that school au-
his own convictions or consider propositions or values thorities could lawfully require the traditional flag salute.
from the social class with which he identifies. An ex-
ample is the antipathy of Justice Greogorio Perfecto to
capital punishment. Also familiar is the antipathy of
103Holmes, O.W., 'The Natural Law, 31 Harvard Law Review,
Justice Oliver Wendell Holmes to the natural law 40.
350 L EGAL P HILOSOPHY LEGAL REALIST P ERS PECTIVE 51
regardless of honest and conscienlious objecUons that Supreme Court, Professor Stone stated that "all human
to salute the flag and recite the pledge of loyalty a nd experience teaches us that a moral issue cannot be
allegiance to the Republic for which the flag stands is suppressed or settled by making its supporters mar-
an affront to one's religious cons cience and freedom. The tyrs." 104 It is noteworthy that Justice Stone's dissent
majority. speaking through Jus tice Felix Frankfurter. in the Gobiiies case also begins with an appeal to the
stated the core of thetr pos ition by saying that "the lesson of human experience. He said, "history teaches
question remains whether school children. like the us that there have been few infringement of personal
Gobitis children. must be excused from conduct liberty by the state .... which have not been dtrected
requtred of a ll the other children in the promotion of as they are now at politically helpless minorities." 105
na tiona l cohesion. We are dealing with a n interest
inferior to none in the hierarchy oflegal values. National In retrospect. it is not difficult to see where the
unity is the basis of national security. The ultimate philosophy of the Gobiti.s decision was later overturned
founda tion of a free society is the binding tie of cohesive by the same jurists who were faced with a similar set
sentiment. The fla g is the symbol of our national unity, of material facts and the same rules of constitutional
transcending all internal differences, however large, law that they had encountered in the first flag salute
within the fra m ewok of the constitution." Thus, in this case. While it was forged in the name of national unity
case. the interests in national unity and s ecurity wer e and security at a time when the nation was faced with
used to justify the requtrement of flag salute even to the a clear and present danger, it was done at the expense
point of compulsion. on the theory that national security or suppression of the free exercise and enjoyment of
a nd unity demanded certain sacrifices of individual religious worship by coercing the Gobitis children to
rights. including possibly religious freedom. express something or follow an a ct which they did not
honestly and sincerely believed in. The coercion took
The matter involved in the Gobiti.s case was not new the form of criminal prosecution and. upon conviction.
at all to Justice Felix Frankfurter. When Justice Frank- imprisonment of the parents of children of school age
furter was still professor of law at Harvard University, who refuse to send thetr children to school. There was
• he had already express ed his views on the matter. In a dtrect affront on their integrity as human beings.
a memora ndum prepared by Professor Frankfurter for amounting to an invasion of "the sphere of intellect and
Newton D. Baker. Secre ta ry of Wa r of the United spirit. .. And compulsion to make them do unwillingly
States. Professor Frankfurter articula ted his belief that what they did not conscientiously believed in as an
"conscientious objectors ... who s ta nd in uncompro- article of their faith is a technique that has always b een
mising oppos ition to comba tant or non-comba tant
s ervice s hould be convicted a nd confined ." In the Gobi.tis
case. only Jus tice (la ter Chief Jus Uce) Harlan F. Stone l04 The Conscientious Objectors. 21 Columbia Univers ity
dissented . And his dissent was unders tandable. The Quarte r~. 270.
10 3 10 U.S. a t 6 04. Up to this point. this a lso serves as an
matter Involved in the case was not n ew to Jus tice Stone illus tra tion of the metaJegaJ s Umulus set by the Judge's pred ilections
either. In a pa per publis hed before his elevaUon to the a nd preconceptions.
352 LEGAL P1111..0SOPI IY LEGAL REA.LIST PERSPECTIVE 353
considered constitutionally suspecl. lation of the Belgians. withdrew to the beaches ofDunkirk
on May 28. for a desperate evacuation across the channel
Where then can the explanation be found that the to England. which continued for five days. enO.ing on
Gobitis decision was a mistake. Perhaps in the meta- June 3. the very day the decision of the Supreme Court
legal stimulus that simply moved the members of the was promulgated.
Court to arrive at such a decision. That this seems to
be the case may be gleaned from the reference made The Gobitis claim to religious freedom and its
by Justice Felix Frankfurter. who wrote the majority exercise simply collided with the interest of a nation
view. to the "time of emergency" that enveloped the first already deeply involved in the Second World War. The
case from beginning to end and from the marked hesi- American way of life itself was at stake in the outcome
tancy and uncertainty of the Court in stating that re- of such "time of emergency." The stakes were indeed
ligious freedom may be sacrificed at the altar of national high. The "time and circumstances" were precarious for
security and unity. the Allied cause and one can see it reflected right in the
fust paragraph of the decision prepared by Justice
The "time of emergency" referred to was the crisis Frankfurter. That the "times of emergency" played a far
in which the free world found itself during the middle greater metalegal role than is admitted in the decision
of 1940. About two weeks before April 25. 1940, when is supported by Justice Frankfurter's letter. dated May
the case was argued before the Supreme Court, the 27. 1940. to Justice Stone. the lone dissenter. the day
mighty German armies had completed their blitzkrieg after the news of the debacle of the Belgian armies and
and occupation of Denmark and had began the invasion a week before the release of the decision on June 3. In
of Norway by means of sea and air-borne divisions. that letter. Justice Frankfurter tried to justify the
Hardly a week after April 25, the Germans broke position taken by the majority. He said: "It seems to me
Norwegian resistance driving Kiilg Haakon VII and his that we do not trench on an undebatable territory of
government to London. 1\vo weeks after the oral ar- libertarian immunity to permit the school authorities a
guments in court. that is on May 10. the victorious judgment as to the effect of this exemption in the
• German armies began the invasion of Belgium. the particular setting of our time and circumstances. "106
Netherlands. and Luxemburg, driving west to the English
Channel at Abbeville. cutting ofT the British and Belgian The majority decision came as a shock and was
armies in the North from the bulk of the French armies widely and sharply criticized. Soon the members of the
in the South. And on May 26, only a week before June Supreme Court who had participated in the case began
3, the date when the decision was promulgated. the to have misgivings. Thus when Jones v. Opelika reached
Belgian armies discouraged. disorganized and without the Supreme Court, Justices Black. Douglas. · and
supplies. were ordered by King Leopold III to cease
fighting. resulting in the fall of France to the enemy after
close to half a million soldiers of the British and French 106 Emphasis supplied. 1ne full text of the letter Is In MASON,
AT.. SocuRJ1Y n -1ooucH FREEDOM. 217-220. Cornell University Press.
armies. hopelessly exposed in the North by the capitu-
ifl, Ithaca. New York.
354 LEGAL PHILOSOPHY LEGAL REALIST P1<:RSPECTfVE 355

Murphy dissented stating that they had become con- Upon the vertly of this assumption depends our
vinced that the Gobitis case "was wrongly decided." answer in this case.
Together with Justice Stone. there were now four National unity as an end .... is not in
members of the 9-man Court who no longer supported question. The problem is whether under our
the Gobitis decision. a precarious balance in favor of Constitution compulsion as here employed is
Justice Frankfurter. When Justice Wiley B. Rutledge a permissible means of its achievement.
replaced Justice James F. Brynes after the latter's Struggles to coerce uniformity of senti-
retirement. Justice Frankfurter lost his edge because ment in support of some end thought essential
Justice Rutledge joined the four dissenters. Now form- to their time and country have been waged by
ing the majority they overruled the Gobitis case in the many good as well as by evil men. Nationalism
second flag salute case of West Virginia State Board of is a relatively recent phenomenon but at other
Education v. Bamette.107 This time Justice Frankfurter times and places the ends [varied].
was on the dissenting side. The majority held that an Probably no deeper division of our people could
attempt to restrict religious liberty. that is to say freedom proceed from any provocation than from finding
of worship can be justified only by showing that there it necessary to choose what doctrine and whose
is a clear. not doubtful. and present. not remote. danger programs public educational officials shall
to the state which the state may lawfully protect. Once compel youth to unite in embracing. Ultimate
the danger to the state was over and the exigencies of futility of such attempts to compel coherence
national unity and security seemed less exigent. even is the lesson of every such effort. . . . Those
assuming that the Jehovah's Witnesses had an ob- who begin coercive elimination of dissent soon
jectively wrong conscience on the significance of taking find themselves exterminating dissenters.
a flag salute, the Court reasoned that the "clear and Compulsory unification of opinions achieves
present danger" rule is just as applicable where the only the unanimity of the graveyard. . . .
government compels affrrmance of a belief as where it
seeks to suppress one. In overturning the Gobitis The case is made difficult not because the
• decision. the new majority concluded: principles of its decision are obscure but be-
cause the flag involved is our own. Neverthe-
Lastly. and this is the very heart of the less. we apply the limitations of the constitution
Gobitis opinion. it reasons that national unity with no fear that freedom to be intellectually
is the basis of national security that the au- and spiritually diverse or even contrary will
thorities have the right to select appropriate disintegrate the social organization. To believe
means for its attainment and hence reaches that patriotism will not flourish if patriotic
the conclusion that such compulsory measures ceremonies are voluntary and spontaneous
towards 'national unity' are constitutional. instead of a compulsory routine is to make an
unflattering estimate of the appeal of our
institutions to free minds. We can have inlel-
107319 U.S. 624, 87 L.Ed. 1638, 63 S.Ct. 1178.
II I
356 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTTVE 357
lectual individualism and rich cultural diver- Revised Penal Code, which requires that a person de-
sities . . . only at the price of occasional ec- tained for some legal ground must be delivered to the
centricity and abnormal attitudes. When they proper judicial authorities within a period of six hours.
are so harmless to others or to the state as those Insofar as political prisoners were concerned. this was
we deal with here. the price is not too great. extended to a period not exceeding six months from
But freedom to dilfer is not ·limited to things their formal delivery to the Commonwealth Govern-
that do not matter much. 1bat would be a mere ment by the Commander-in-Chief of the United Stated
shadow of freedom. The test of its substance Armed Forces in the Far East. It was the legislative
is the right to differ as to things that touch the sense that six months would just about enable the
heart of the existing order. Government to fulfill its responsibility regarding the
custody and prosecution of this type of prisoners. As
If there is any fixed star in our constitu-
a matter of fact. the statute in question was enacted in
tional constellation. it is that no official high
the interest of national security in order to deal with the
or petty. can prescribe what shall be orthodox
hundreds of Filipino citizens who had turned trait-ors
in politics, nationalism. religion, or other
by giving aid. comfort and sustenance to the Japanese
matters of opinion or force citizens to confess
Forces. The time and circumstances of the case show
by word or act their faith therein. . . .
that it was barely a year after the return of the Allied
We think the action of the local authorities Armies to the Philippines and that the fighting in the
in compelling the flag salute and pledge Pacific zone was still at its height. The Supreme Court
transcends constitutional limitations on their was not simply prepared to rule that the period of six
power and invades the sphere of intellect and months was unreasonable, although the disparity be-
spirit which it is the purpose of the amendment tween six hours and six months could not have been
to our Constitution to reserve from all official lost to the members of the Court. especially the fact
controI. 108 that the period of six months could only be tolled from
and after the formal delivery of the prisoners by the
A Philippine illustration where the historico-politi- Commander-in-Chief of the United States Armed Forces
cal setting had a quickening effect is the case of Laurel in the Far East. It is interesting to note that Justice
v. Misa.109 Anastacio Laurel demanded his release from Gregorio Perfecto. in filing a strong dissent. was affected
the Bilibid Prisons on the ground that Section 19 of by the same metalegal factor but felt that the inter-
Commonwealth Act No. 682. which created the defunct pretation of the majority "sanctions acts of public officials
People's Court was unconstitutional. The said pro- that deprive and continue to deprive the political
vision suspended the effects of Article 125 of the prisoners concerned of their personal liberty without due
or any legal process of law."

108 319 U.S. at 640-642. See Gerona v. Secretary ofEducation, (/} Stimulus Set by Current Social Values
C .R No. 13954, 57 0.C. 820, 106 Phil. 2. and Economic Postulales
10976 Phil. 37.
""
358 LEGAL P1 ULOSOPHY LEGAL REALIST PERSPECTNE 359
By and large, the important cases that reach the Shoshone Indians need not be paid for the lands which
courts are concerned with or related to socio-economic the white men took away from them on the theory that
questions. In controversies of this nature, the decisional primitive human beings did not have any sense of private
behavior of a judge may be influenced by his or her social property nor any idea of what ownership is all about.
or economic outlook. Judges are human beings and
they cannot isolate themselves from current social values The dissenters, Justices William Douglas, Frank
and economic postulates. Murphy, Felix Frankfurter, and Owen Roberts. stronglly
disagreed with the majority interpretation of the treaty.
A good illustration of a socio-economic perception They keenly observed that, unlike the United States.
which is shared by many is the notion of property Indian Chief Pokatello had had no legal counsel at his
relationship developed from early commonality to the elbowwhen the treaty was drafted. The dissenters stated
present-day concept of private ownership. This is well that the Shoshone Indians did not lose to the railroad
illustrated in the case of Northern Bands of Shoshone companies and land developers. they lost in the fine
Indians v. United States, I Io where dilfering effects on web of legal niceties contained in the treaty. The dis-
the members of the Court of this metalegal stimulus senters held that the land in question belonged to the
resulted in differing interpretation of the Box Elder Shoshone Indians on the principle that he who comes
Treaty of 1863 between the Shoshone Indians and the to the abode of another and bargains for free transit of
United States. The Shoshone Indians brought suit a right of way across the land on which the latter lives
under this treary to recover the value of some fill.teen and which he proclaims to be his own recognizes his
million acres of their land. The majority opinion claim over it.
prepared by Justice Stanley Reed held that under
the terms and circumstances of the treaty Shoshone F. THE LAw As TIIE PRODUCT OF Tl-IE
Indians could not recover because the treaty did not JUDICIAL PROCESS
recognize the Shoshone Indians as having tiUe to the
In the philosophy of judicial legal realism. the ratio
land they claim. All that the the United States bound
• herself to do under the treaty was to pay the amount
decidendi of a case acquires an important character and
function. As the product of legal reasoning. the ratio
of $5.000.00 annually in exchange for the undertaking
decidendi becomes a vital factor in the prognostication
of the Shoshone Indians not to waylay stage-coaches
of the result of other similar or nearly similar cases. But
and molest their passengers, destroy telegraph poles and
it bears repeating that this is true only so long as the
railroad tracks. The concurring opinions of Justices
judicial elaboration is done "interstitially, that is to say
Robert Jackson and Hugo Black said that this is a
confined within the molar to molecular motion." To put
socio-economic, not a legal. problem because the
Justice Holmes' rule of thumb differently. if there are
Shoshone Indians did not even have a word in their
no interstices or lacuna in the statute or rule under
vocabulary for the concept of property relationship. The
consideration in which the molar to molecular motion
can play or operate, then. there is simply no place for
.. .. I I0324 U.S. 335. 65 S. Ct. 690. 89 L. Ed. 985. judicial elaboration. Simply put. courts cannotjudicially
LEGAL REALIST PERSPECTIVE 361
360 LEGAL PHILOSOPHY

The exclusion rests on the fact that in the adjustments


legislate, in this situation, in a wholesale manner.
of conflicting or overlapping interests and purposes the
ultimate authority in the interpretation and application
In the face of the warning that nothing about the
of legal rules is the judicial organ. As John Chipman
law should be reduced to a mathematical formula, let Gray puts it. statutes enacted by the legislature and the
it be so presented if only to clarify the judicial legal real-
orders issued by the executive department are only
ist view of the nature of the modern judicial process,
sources of law. This means that all agencies of the
as follows:
government engaged in decision-making form part of the
OR x mF) x (mlS xjP) =L adjudicative organ. regardless of their political or
governmental classification. This would include the chief
The first quantity is a modification of the formalist
executive when engaged in extradition cases. for in-
concept of the judicial process. with the qualification of
stance. It would also include the legislative body when
the raw fact (rF) into material facts. The symbol UR)
engaged in cases involving impeachment and legislative
in the first quantity represents "jural rules" while the
contempt proceedings.
symbol (mF) represents "material facts" as distinguished
from "raw facts." This is to say that not all the rF go
H . 11-IE ADJUDICATIVE PROCESS AS Tl-IE PRIME MOVER
into the adjudicative process. To be sure. only the mF
does or should. And the "material facts" are not only In judicial legal realism, the process that controls
nor necessarily the actual facts but include also the the activities of individuals or groups of individuals in
circumstances relied upon or even assumed by the a politically organized society is the law uttered by the
j udge in reaching his or her conclusion. A court lacks courts. This business-like concept of the nature of the
the authority to lay down a binding rule of law on facts law is a recognition of the reality of the force exerted
which are not before it. As such. "facts" become im- by the adjudicative organ in the determination of con-
portant in the determination of the dispositive portion flicting activities. Until the adjudicative body applies the
of the decision and the underlying principle of the case legal rules. says John Chipman Gray, there is yet no
II
which alone can be precedent in future cases. law. The law, therefore, to repeat Justice Holmes. is
the force brought to bear upon the members of the
In the second quantity, the symbol (mlS), which community through the instrumentality of the adjudi-
represents the "metalegal stimuli," in turn affects the calive organ. 111
other symbol UP). which corresponds to the "judicial
personality... I. T11E LAw AND rrs PURPOSE

While the realist school ofjurisprudence has placed


G. EXCLUSION OF TllE Lr::CISU\TIVE AND
the emphasis on the judicial process it has nonetheless
EXECUTIVE FUNCTIONS
considered the adminis tra Uon of justice as the end of
Unlike the positivist concept of the nature of the
law. judicial legal realism excludes the legislative and l l l1-10LMES. c LLEC.:11': 0 L P.GAL PAPEr<S . 1667 .
.. the executive organs as producing agencies of the law.
362 LWAL Pl 111...0SOPI fY LWAL REALISf PERSPECTIVE 363

the law. But it considers a different kind of justice. ll Unusually enough. it is on the philosophy of
is not the concept of justice espoused by the teleo- education of John Dewey (1859-1952) that social legal
logical school bul a kind of justice thal is equaled with realism is based. Dewey held that knowledge is a part
legalily. Tilis is what Lord Wright had in mind when of life-experience involving the "intercourse of a living
he staled: "I am not afraid lo be accused of sloppiness being with his physical and social environment." Stated
of thought when I say that the guiding principle of a differently, learning becomes effective and adequate to
judge in deciding cases is lo do justice, that is, justice the necessities of life only when it is coordinated with
according to law, but still jusUce."112 Since it is pre- experience. As Dewey puts it, "learning by doing and
sumably seldom that an injustice occurs in the choice participation." This is an echo of David Hume's idea
by ajudge of the applicable legal rule. then the injustice that knowledge is derived from experiential observa-
arises on account of the difficulty encountered by the tion.115
courts in making their .fmdings of the material facts. In
such a case. the legal rule applied "is not really, but only On this basis, John Dewey advanced the view that
seemingly. operative and the ideal or value [which the "the life of the law is the social experience of the people
legal rule] expresses is fruslraled.113 For the modern and tested and guided by social experience."116 As
realist approach, the teleological definition of law in Dewey explained it, the law cannot be understood
terms of axiological values is, therefore, untenable for apart from its social environment but must profit from
there is an implicit allempl lo cancel the existence of social experience in the development of concepts, rules
some rules that are unjust or unequal in the naturalist and regulations. 117
sense. In the modern realist jurisprudence, a legal rule
is not necessarily "just" merely because the legislative Thus. John Dewey's excursus into the study of the
or the executive organ has promulgated il. But il does nature of the law as a "through and through social
not cease to control human actions merely because it phe!lomenon" covers three distinct yet related issues.
happens to be invalid as lesled by the "eternal verities" namely the source of law, the end and purpose of law,
of teleological jurisprudence. Il continues lo be a rule and the application of law.
of action for as long as it enjoys recognition. This
accounts for the facl that the phrase "unjust law" has A. SouRcE OF LAw
a definite meaning for the members of the com-
Like other realists. John Dewey broke with the
munity.114

49. SOCIAL LEGAL REALISM l 15HuME, D .• ThEA11sE ON HuMAN NAruRE. 273. Selby-Biggs
Edition. Oxford University Press, London.
116 Dewey. J., Logical Method and Law, 10 Cornell Quarterly.
l l2i11~: Ftmnu-: ov COMMON LAw. 114. 17. 26.
l l 3Frank. A Plea for Lawyer..SChaols. 50 Yale Law Journal l l 7Patterson. E., in his JumsPRUDENCE, MEN AND IDEAS or LAw,
1324. 466. observed that ~a slightly later generation of Wliters on juris-
l 14pATON. A ·n.: xmooK 1r; Jumsi•1um~:N 1·:. 75 Oxford University prudence w as influenced by John Dewey. -
Press. London .
••
364 LEGAL Pt IILOSOPHY LEGAL REALIST PERSPECTIVE 365

natural law theory in the delermination of the ultimate as well as its validity must depend on some axiological
source of law. Dewey disagreed with the natural law or non-empirical criterion. In other words. the matter
jurtsprudents who insist that "unless a source higher of the end or purpose of the law would be outside the
and more fixed than that of experience can be found. domain of the experiences of the people.
there is no sure ground for any genuinely philosophic
valuation of law as it actually exists."118 For Dewey, This is not the case at all. For John Dewey the
this idea is not supported by practical experience. test still lies in the people's experience. On this point.
Dewey made it clear that the law ..is a program of action
John Dewey posited the view that the law is the to be tested in action ... not something that can be
product of the "on-going human activities and judged . . . . on a purely intellectual basis. . . . The
interactlvities." 119 Thus. the phenon:ienon of human life of the law is the social experience of the people and
activities and interactlvities strikes down any notion tested also by their social experience." Human activities
about the source of law outside the structure of and interactivities are on-going and as such "they are
society itself. For Dewey the source of law is the social not closed and completely ended social facts." The conse-
experience of the people. not some transcendental con- quences of human activities and interactivities provide
cept. since all that the people can appreciate well are the basis for the collective decision that they are to be
their own experiences. This has a subdued color of maintained either intact or changed.120 The end or
Savigny's volksgeist for the idea of social experience as purpose of the law is the deliberate achievement of social
the source of the law refers ·to the customs and usages contentment.121 And for John Dewey. social con-
of the people. These are the continuing human activities tentment is "the satisfaction which comes when the
and human interactivities. To put this in another way. dominant active tendencies are made interests in the
a group of people recognizes and accepts the desirable maintenance and propagation of the things that make
human activities (customs) enriched by the desirable life worth living." 122 Upon these conditions. the other
human interactivities (usages). members of society can and should be happy since
regard for "the happiness of others means regard for
B. END OR PURPOSE OF L\w those conditions and objects which permits others freely
to exercise their own initiative, reflection and choice. "123
Some writers claim that John Dewey faced a di-
The end or purpose of the law. thus. remains social in
chotomy of sorts insofar as the end of the law is
nature for it is found in the society of the individual
concerned. Specifically. the critique is that if the law
members that compose it as a whole.
is the product of the activities and interactivities of the
people. then the standard for judging the end of the law
120DEWEY & TuITS, ETH1cs, 302. Henry Holt & Co., New York.
121 Loe. cit.
118/btd.. 74. 122Loe. cit.
l 19oewey, J ., Logical Met.hod and Law, 10 Cornell Law
123Loe. cu. Emphasis by Dewey.
Quarterly. 74.
'
366 Lf':CAL PHILOSOPHY LEGAL REALIST PERSPECfIVE 367

C. APPLICATION OF LAw Since its launching. this jurisprudential movement has


won adherents in France,126 in Germany,127 in
Until law is set into operation "in the field modify-
Canada, 128 in England where the First Critical Legal
ing and/ or maintaining human activities as going
Conference was held there in 1981 at the University of
concerns" there can be no law in the real sense. accord-
Kent. 129 and in the Philippines where critical legal
ing to John Dewey. On the basis of this condition, the
realism was introduced in 1988 as part of the course
law becomes an instrument of social control. Implicit
in Legal Theory in the College of Law of the University
in this concept is the use or threat of sanctions for the
of the Phillppines. 130 The challenge of critical legal
attainment of the social ends. Thus. in postulating the
scholarship to the tradition of the dominant liberal
social aspect of the application of the law. Dewey said
paradigm has reached the precincts of the academe.131
that "what is called application is not something that
For the Critical Legal Studies Movement. the task of a
happens after a rule or statute is laid down but is a
good law school is to provide a legal education that frees
necessary part of them; such a necessary part indeed
the mind of professors and students alike from the
that in given cases we can judge what the law is as a
grips of the dominant liberal paradigm and deligitimizes
matter of fact only by telling how it operates and what
its effects are in and upon human activities that are going
on."124 126 Journes. J.. The Crisis of Marxism and Critical Legal
Studies: A View .from France, 10 International Journal of Social
50. CRITICAL LEGAL REALISM Law, 2.
127 A BriefRejoinder to the Discussion on Critical Legal Studies,
The Critical Legal Studies Movement was formally z.eitschrill fur Rechtzoiziologls. 126; The Conference on Critical Legal
Thought at Haus Blemendal, Washington. and Lee University Law
organized at the First Conference on Critical Legal Review, 411.
Studies held in May of 1977 at the University of 12833 McGI11 University Law Journal, 189; 18 Ottawa Univer-
Wisconsin. Since its organization, books on critical sity Law Review, 89.
120. ..
~wruG1ff, A, Soc1AUSM n -1EoR1ES AND PHAcncES. Ox.ford Uni-
legal realism have been published. A variety of topics
versity Press, London; Hunt, A, TheTheoryofCrilicalLegalStudies,
in both public and private law have been the subject 6 Ox.ford
of critical legal analysis. In addition, a remarkable 130 University Journal of Legal
. Studies. 1.
In some law schools, the name of the course ts Jwis-
stream of articles. essays. studies. and notes on prudence.
critical legal realism has found print in leading publi- 13lunger, R.M., The Critical Legal Studies Movement. 96
Harvard Law Review, 667-670. In U1e University of the Philippines
cations. law journals and philosophical reviews.125 College of Law, the interest shown by the students In critical legal
realism Is ev1dent by their heightened participation in classroom
124 Dewey. My Philosophy of Law In Mv PH1wsor1 rv or I.Aw. 77. discussion. Similar experiences have been reported by Professor Mark
Boston Law Book Co., Boston. Emphasis by Dewey. Kelman of Stanford University Law School and Professor Owen M.
125 Kennedy. D. and Klare. K.. A Bibliography of Critical Legal F1ss of Yale University Law School. Professor Kelman writes of the
Studies. 94 Yale Law Journal, 461; Abel. R., Law Without Politics: comments and questions raised by his students which have aided
Legal Aid Under Advanced Capitalism: 32 University of California him ln developing a course on Critical Legal Studies at Stanford
Law Review, 474; Freeman. A. and Mensch. 8 .. Editors. Confe rence University. (A Gu1DE ro CR111CAL LEGAL Sruo1ES, v. Harvard University
on Critical Legal Studies. Buffalo Law School. New York State Press, Cambridge). Professor Flss states that ~the critical legal studies
University. movement continues to hold sway in the academe. As far as I can
368 LECA[, P1 llLOSOPI IY
LEGAL REALIST P1:-:RSPECTfVE 369
the improper and illicit tie between law and politics.132
Critical legal realism has gained intellectual recognition claimed by the critical legal realists lo the modem school
no matter how grudgingly given. oflegal realism "is a grasp at legitimacy." 134 Comel West.
Professor of Religion at Princeton University. brands
A. CRITICAL LEGAL Sci 101.ARs1 ur ScoRNED
critical legal realists as "the academic left sub-cul-
lure. "135 While Professor West fmds many of the criti-
The leading guru and inspiration of the Critical cisms leveled by critical legal realists against the tradition
Legal Studies Movement is Professor Roberto of the dominant liberal paradigm persuasive. he stales
Mangabelra Unger of Harvard University Law School. that he has "not fully understood their animosity and
The critical legal scholars belonging lo this surprisingly hostility toward liberalism displayed in much of their
compelling and provocative movement consider their writlngs."136 Notwithstanding this denunciations. there
jurisprudence as particularly close lo the modem school is no question as to the ineluclability of critical legal
of legal realism. realism.

But some critics have taken to task the legitimacy B. POLEMICS AGAINST CRITICAL LEGAL REALISM
of the jurisprudence of the Critical Legal Studies Move-
The legal realism of this jurisprudential movement
ment. A few examples will suffice. Richard A Posner
of the United Slates Court of Appeals and Senior is a critique directed against the discourse. agenda ai:id
Lecturer at the University of Chicago Law School does practices of the "dominant liberal paradigm . .. such
not hide his disdain for critical legal scholarship. Pos- as the ways in which the language of impartiality.
ner contends that the critical legal scholars are the objective due process. and value-free procedures which
"illegitimate descendants of the modem legal realist hide and conceal partisan operations of power and elite
forms of social victimizalion."137
school ofjurisprudence."133 G. Edward White. Professor
of Lawal the UniversityofVirginia. states that the kinship
The scholarship of the Critical Legal Studies Move-
ment has naturally incurred the hostility and ire of the
tell ... the student Interest In the movement remains strong and
intense .... I believe students eve1ywhere feel a social affinity to l 34Whlte, C .E .. The Inevitability of Critical Legal Studies, 36
critical legal studies." The Law Regained, 74 Cornell University Law Stanford Law Review, 649. 650.
Review. 245. 135 West. C.. Brendan Brown Lectures: Reassessing the Critical
132 Unger. R.M .. op. cit.., 667. Legal Studies Movement, 34 Loyola University Law Review. 265, 269.
l 33Posner. R. The Jurisprudence of Skepticism. 86 Michigan 270.
Law Review, 827. 829. Posner Is a leading figure of the moderate 136-rhe use of the terms "dominant liberal tradition" and
Law and Society Movement. In his book tiUed EcoNoMrc ANALvsrs oF "dominant liberal paradigm" does not refer to the familiar classifi-
LAw (2d edition). Posner studies the possibilities for the law of the cation of persons and ideas as "liberal" or "conservative."
principles of economics and how to think like an economist about 137west. c .. op. cit.. 265, 269-270.
legal rules. At present, some of the leading law schools In the United l 38Ewald. W.. Unger's PhUosophy: A Critical Legal Study, 97
States have professors of economics on their faculties applying Yale Law Journal. 665; Carrington. P.. Of Law and the River, 34
principles of economics In analyzing and predicting the economic Journal of Legal Education, 227; Critique and Construction: A Sym-
effects of legal concepts and rules. posium on Roberto Unger's Works, Robin W. Lovin and Michael J.
• Perry. Editors. Cambridge University Press .
370 LEGAL P1111..0SOPI IY LEGAL REALIST PERSPECTIVE 371

defenders of the dominant liberal paradigm.138 Ronald But unlike the crttical social realism of Karl Marx.
Dworkin. one of the leading supporters of the dominant the crttical legal realism of Roberto Unger is not leftist
liberal paradigm, dismisses the thrusts of critical legal oriented. Unger. himself. has repeatedly slated that his
scholarship as "spectacular and even embarrassing "social theory is an alternative to Marxism" 142 and that
failures."139 Some of the defenders of the dominant it is not a reaffrrrnation but a staunch denial of the
liberal paradigm have gone as far as branding critical bourgeois agenda of social divisions and economic
legal scholarship as but another form of radical social- hierarchies.143 Thus. critical legal realism is the counter
ism,140 no different from the critical social realism of image of the uprooting Marxist program of revolution-
Karl Marx (1818- 1883). Marx championed the eradi- ary change of the dominant liberal society in general and
cation of the dominant liberal bourgeois society and its the dominant liberal legal order in particular.
substitution by the socialist society expressing the
interests and aspirations of all the toiling classes. As C. DECONSTRUCT ION OF DOMINANf LIBERAL PARADIGM
stated by Karl Marx, "the bourgeois concept of law is In the hands of the critical legal realists.
but the will of the dominant elite erected into legislation, deconstruction is the technique of: 1) slinging analysis
a will whose essential character and direction are deter- of the traditions, that is lo say the ideas, beliefs. alti-
mined by material and economic conditions of the tudes. and propensities of the dominant liberal para-
existence of the dominant class."141 digm, and 2) reformation of the traditions of the domi-
nant liberal paradigm through the presentation of the
Actually. the only common denominator of the rationale or justification for the censure and the oITer
critical social realism of Karl Marx and the critical legal of alternative soluUons.144 Deconstruction is distin-
realism of Roberto Mangabeira Unger is their guished from delegitimation which is the technique of
disenchanmenl with: 1) the elitist tendencies of the unmasking the illicit tie between law and politics.
dominant liberal paradigm, 2) the concealed intentions
and judgments behind legal concepts and ideas which (1) Trashing the Traditions of the
the dominant liberal paradigm has managed lo include, Dominant Uberal Paradigm
directly or indirectly. into the legal order. and 3) the
belief that the system of distribution of the rnate1ial and The ideas. beliefs, attitudes. and propensities of the
social goods is just and in the best interest of the dominant liberal paradigm, which the Critical Legal
people. and, therefore. inviolable.

139DwoHKrN. R.. L\w's EMPt1{)<;, 274. Ha1Yard University Press. 142UNGEtl. R. FAJ.SE NocESSnY; A.\,'TI-NECr;;ssrmruAN SoctAI. Tll~:or<Y
Cambrid§e. tN 111r:: S1mv1cE or RAJ)tCAJ. Dr.MOCRACY, I.
14 Ewald, W .. Unger's Philosophy: A Critical Legal Study, 97 143 Unger, R., The Crit ical Legal Studies Mouement. 96
Yale Law Journal, 733, 741 -753. Harvard Law Review, 566, 665-666.
141111ECoMMUNrsr MANwr-:sTo, Part II, 47. Possony, S.T.. Editor, 144-rhe process of internal reformation is also known as the
Chicago Press Co., Chicago; MAHXtSM AND L\w. Bierne. B. and Quinney. deviationlst process due to deviation from the traditions of the
R . Editors. Chicago Press Co .. Chira~o. contemporary liberal social order.
372 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 373

Studies Movement intensely dislikes. can be summed for existence in terms of economics and operations of
up into: 1) the contemporary social order is a free society the dilTerent forces, including law, involved in such
for there is individual initiative to undertake any busi- struggle. Pound was also referring to the philosophy
ness or enterprise. and 2) the underlying economic thrust of legal positivism which is determined by the will of
of the contemporary social order in the control, pro- the dominant social class on the basis of its own in-
duction, distribution. and exchange of goods and credit terests.147 However, Roscoe Pound did not elaborate
is based on free competitive conditions. on this particular critique of the contemporary liberal
social order. He was engrossed in the development of
Insofar as the first tradition maintained by the his philosophy of jural postulates and social interests
dominant liberal paradigm is concerned, the critical as the underlying basis of a new way of thinking about
legal realists say that while the contemporary social the problem of the nature of the law.
order may be a free society it is not really a just society
for it is characterized by widening social divisions and Roberto Unger undoubtedly read Roscoe Pound and
sharpening economic hierarchies. As to the second agrees that the traditions of the dominant liberal para-
tradition nortured by the dominant liberal paradigm, digm reveal its class essence.148 Mark V. Tushnet.
the reality pointed out by the critical legal realists is that Professor of Law at Georgetown University Law Center.
it is characterized by exploitative, individualistic and adds his assessment that the dominant liberal social
possessive propensities through the subtle use of order indeed seeks the maximization of its own interests
power and resources to eliminate competitive conditions and advantages.149
and create monopolies and cartels.145
For critical legal realism, the results of this erro-
Roscoe Pound saw the fallacy of the contemporary neous traditions maintained by the dominant liberal
social order more that fifty years before the organization paradigm are: 1) the state has become the organization
of the Critical Legal Studies Movement in 1977. In the of the dominant liberal class. 2) the law has become the
Storrs Lectures delivered by Pound in 1921 at Yale rationalizing instrument of alienation and oppression
University, he identified this error and sophistry of the yielding concessions only when absolutely necessary in
dominant liberal paradigm as "the economic interpre- order to avoid protests and contradictions. and 3) the
tation of the law imposed on society by the dominant social structure has become so divided and hierarchied
liberal class in furtherance, consciously or uncon- that status and position therein are determined by
sciously. of its own interests."146 Pound was referring irrelevant inequalities. ISO
to the mistake of the dominant liberal paradigm of 147pOUNO. R., Op. CU., 67.
structuring the social order in the form of class struggle 148UNGEH, R, op. cU. 67.
149-rusHNET, M., REo. W111TE ANO BwE: A C1m1CAL ANA1-vs1s oF
145UNGER. R. TI·IE CRITICAL LEGAL Sn101F.s MoVEMEN"r, 112-113, CoNs}¥BoNAL LAW, 8. Harvard University Press. Cambridge.
Harvard University Press. Cambridge. Johnson, C.. Do You Sincerely Want to be a Radical?, 36
146PoUND, R., AN lmT<0DUCJ10N ro rnE P1-11LOSOP11Y OF LAw, 66. Yale Stanford Law Review, 147; Schwartz, L .. With Cun and Camera
University Press. New Haven. 'Through Darkest CLS-Land, 36 Standford Law Review, 413.
374 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 375

(2) Internal Reformation of the (I) The Rule of Law


Dominant liberal Paradigm
The prestine. form of this jural construct is trace-
Critical legal scholarship has not left its stinging able to Aristotle. In reacting to Plato's premise that the
analysis of the dominant liberal paradigm at the first administration of a politically organized society by a
stage of the deconstruction process. Otherwise, critical philosopher-king is preferable, Aristotle argued that "the
legal scholarship would not have succeeded in shaking rule of law is preferable to that of a single person."152
the foundations of the contemporary liberal social order.
In the Aristotlean context, the noun "rule" in the
(a) Rationale and Justification for the Censure phrase "the rule oflaw" is best understood with regnum.
In critical legal scholarship, the rationale and meaning reign and sovereignty of the law.153 This
justification for trashing the dominant liberal para- normative principle means that conduct must conform
to the formal and impartial norms and values of the law
digm is to expose its erroneous traditions and to open
suggested by the phrase " a government of laws and not
up its elitist discourse. agenda and practice hiding
of men." And, according to Artistotle, the moral. political
behind jural constructs and categories which were
and economic corruption of a society begins the very
posited by their authors precisely to norture the law as
moment the normative principle of the rule of law is
an effective neutral means of social control. These jural
abused or eroded. It does not make any dillerence
constructs and categories have been abused or misin-
whether the ruler of leader is generous or compass-
terpreted through subtle and sophisticated ways by the
ionate. What matters a great deal is that the hierar-
dominant liberal paradigm to give them dillerent casts
chies of power and wealth are materialistic values and
and meanings in furtherance of its own interests.
difficult to handle even for a philosopher-king, let alone
a person in authority who takes advantage of uninten-
However, not all the subjects addressed by the
ded consequences of governmental actions. Power and
Critical Legal Studies Movement will be considered here.
wealth are tempting and easily abused. Thus, Aristotle
The list is quite formidable.151 Only some of the more
felt that it would be unwise indeed for the citizens to
important jural constructs and categories of the legal
allow anyone to run the affairs of law and government
order which are relevant to the central problem of the
without first strictly laying down the standards and
nature oflawwill be taken up in the context of Philippine
limitations of the exercise of governmental actions.
jurisprudence, namely, the rule of law, separation of
governmental powers. majoritarian rule, positive equal-
In its pure form. then. the rule oflaw is not a license
ity, checks and balances. rights and obligations, consent
for extemporaneous and arbitrary exercise of authority
of the governed, equal protection of the law. judicial
but a limitation on the far reaching exercise of political
activism. and free enterprise.
,,
'
152Ai~sTOTLE. THE PoLrncs. lll, l6, 3. Jowett Translation.
151 See note 125, supra. Clarendon Press. Oxford.
153 Jbid., III, 16, 5.
376 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 377

power and economic authority. The purposive element. already disadvantaged segment of society." 156 Thus, for
therefore, of this normative principle is to protect and critical legal realism. the normative principle of lhe rule
insulate the people from the arbitrary will and subject- of law has been used by the dominant liberal para-
ive decisions of those who exercise the preroga lives of digm to mask its propensity to protect itself by prevent-
power and wealth. Thus, everybody. including the ing drastic changes in the form of government and in
government. is duty bound to obey and respect the law the institution of private property both real and per-
by allowing it to reign. When the government. public sonaJ.157
officials and private individuals adhere to the normative
principle of the rule of law, the effectiveness of the law This stinging analysis by critical legal realism is
as a neutral instrument of social control is indeed vividly illustrated in Carifto v. Insular Government 158 and
demonstrated.154 · in Lying v. Northwest Indian Cemetery Protective Asso-
ciation. 159
But in contemporary liberal society. the principle
of the rule of law has become an empty mechanism for In the Caritta case. the plainliff filed a petition
the protection of the people. It has become a means seeking the inscription in his name of some 146 hectares
of oppression. As seen by critical legal realists. the of land situated in the City of Baguio. Plainliff Cariii.o
dominant liberal paradigm has managed to conceal inherited this big tract of land from his ancestors. The
the struggle of the disadvantaged class to obtain the Government of the Philippine Islands opposed the pe-
benefits of positive equality promised by the consti- tition on the ground that the land. being agricul-
tution. To be in any way candid about it. the dominant tural.160 was intended for public and military pur-
liberal paradigm considers "the rule of law as largely an poses of the Government of the United States.161 The
inconvenience. a myth to be winked at if not openly Supreme Court of the Philippine Islands disregarded
mocked whenever it stands in the way of a mission. a the petitioner's evidence of immemorial occupation and
project. or a program."155 For the critical legal realists. use of the land in question. The Court characterized
the normative principle of the rule of law in the hands the Igorot tribe. to which the plaintiff and his ancestors
of the dominant liberal paradigm has not been used belong, as uncivilized, 162 thereby strongly implying
for the empowerment of the people. The normative
principle of the "rule of law has become another ideo- 156Belloti, RA. The Rule ofLaw and the Critical Legal Studies
logical and rhetorical ruse by which the elite coteries Movement. 24 University of Weslem Ontaiio Law Review. 67.
within society transmit false consciousness to the 157A reply to the critique that the nonnative principle of the
rule of law has become a mask to hide the privileged status of the
dominant liberal tradition is found in AUMAN, A. CH.mCAL L1·:GAL Snm1~;s:
A Lmr.RAL Cm11guE. Princeton University Pres.s, New Jersey.
l 54Lewts, J., Survey ofJurisprudence, 20 Ottawa Law Review, 1587 Phil. 132; 212 U.S. 449.
648. 159108 S. Ct. 1319. 1326.
155-lnbe. L., Reuisiling the Rule ofLaw. 64 New York University l 607 Phil. 132: J 33.
Law Review, 726. l6142 Phil. 935, 936.
1627 Phil. 132. 134.
378 LECAL Pl llLOSOPHY LECAL REALIST PERSPECTIVE 379
that the Igorots have had no concept or idea of private Clearly, there was lack of judicial will to relate the
property. let alone the concept of ownership. Despite rights of this "uncivilized" tribe, in general. and the
the material facts that the plainWf and his ancestors plaintill, in particular, to the protective function of the
were. as far back as memory goes, in the possession normative principle of the rule of law. There was not
of the land; that they also held the land for more than only failure "to do justice to the natives but also (ex-
fifty years prior to the Treaty of Paris of April 11. 1899 ploitation) of their country for private gain."167
where Spain ceded the Philippine Islands to the United
States; that they lived on the land and devoted parts The Supreme Court of the United States where the
thereof to agriculture and the other parts to pasturage case was further elevated reversed the Supreme Court
of their animals: and that they were recognized by the of the Philippine Islands. While it is true that the plainWT
Igorot people as possessors of the land according to failed to present any documentary evidence of title to
their customs and traditions, 163 the Supreme Court. the land in question. except an informacion possessoria
speaking through Justice Charles A Willard. ruled that issued to him in 1901, it is evident that Spain had
mere possession of the land did not give plaintiff embodied in her earliest decrees the concept of universal
Cariflo title to it and that it cannot be conclusively feudal overlordship where all·lands. including the colo-
presumed that after a lapse of any number of years nies. belong to the Spanish Crown, a theory indicative
the Spanish Crown had granted legal title to the plain- of her general attitude towards conquered peoples and
tUJ.164 On the basis of this ruling. the Supreme Court lands that they are "not entitled to the same treatment
held that the presumption of ownership based on accorded to those in the same zone of civili7-ation with
immemorial occupation and use could not be sustained her."168 This theory of feudal-overlordship provoked
because such a presumption of fact is incompatible Justice Holmes to indignation. "It does not follow." said
with the surrounding circumstances of the case. namely. Justice Holmes. "that as against uncivilized and savage
failure of the Igorot people to convert to the Christian tribes the rule of law could then be ignored so that their
religion, 165 the failure of the uncivilized Igorot people to country could be exploited for private gain." 169 espec-
take advantage of Spanish legislation which were ially in light of the fact that Spain had previously rec-
issued from lime to time allowing them to obtain title ognized in the Royal Cedula of October 15. 1754 that
over their lands.166 ancient possession of lands could give valid title by
prescription even against the Crown.170 Thus, the
16342 Phil. 935, 936, 937. Supreme Court of the United States ruled that there is
1647 Phil. 132, 139. no sufficient reason for denying that the principle of the
1657 Phil. 132, 134. How this circumstance was relevant to rule of law was recognized in the Philippine Islands, I 71
the Issue of lrrunemo1ial occupation and use was not clear In the
decision.
1667 Phil.132, 134, 137-139. Historically, when lands marked 16742 Phil. 935, 940.
for governmental use Is resisted by the aborigines the euphemistic 16842 Phil. 935. 939.
procedure used by colonizers Is to enact decrees or legislation with 16942 Phil. 935. 939.
stringent requirements and thereafter force the natives to file their 17042 Phil. 935, 942.
applications for tiUes to the lands they claim. 17142 Phil. 935, 943.
380 LEGAL PHILOSOPHY LEGAL REAL1sr PERSPEC1WE 381

and concluded that this requires the registration of the law that was invoked againSt the native American Indians
land in question in the name of the plaintiff.172 was a version that has no memory and no soul." 173

In the Lying case. a project was awarded to a land Even in the area of permissible contest. the inter-
developer for the construction of a road system and action of law. on the one hand, and the hierarchies of
harvesting of timber on the ancestral lands of three power and wealth. on the other. is more often than not
American Indian tribes which they consider to be sacred resolved in favor of the dominant liberal paradigm. This
grounds. Notwithstanding the devastating effect upon is very real, for example. in the criminal justice system.
the cultural heritage and freedom of religion of the Thus. for the critical legal scholars, the Aristotlean
American Indian tribes. the development project was concept of the rule of law has been misinterpreted by
upheld on the ground that there is no principle in the the dominant liberal paradigm as a means of making
constitution that could justify the claim of the three people believe that the contemporary liberal socio-legal
American Indian tribes. By this the Court was saying order is fair and impartial. And so any resultant dis-
that the project in question did not create a hindrance advantage is debonairly dismissed by the dontlnant
on the freedom of the three American Indian tribes to liberal paradigm to be due to individual deficiencies. In
exercise their religion and religious beliefs. Simply put. a word. the law has not reigned really. the dominant
the development project did not penalize the exercise of liberal paradigm has.
religion of the three Amertcan Indian tribes nor did it
coerce them. directly or indirectly. to act contrary to the (ii} Separation of Governmental Powers
sanctity of their ancestral lands or to their religious This subject is an issue of structure involving fun-
belie1S. On this basis. the Court ruled that the claim damental division of governmental powers. As a ju-
of the three Amertcan Indian tribes cannot be afforded risprudential problem. it involves much more than a
the protection of the rule of law. question of checks and balances on the exercise of
governmental powers. It is concerned largely with the
As in the decision of the Supreme Court of the direct and indirect confrontation of core or basic interests
Philippine Islands in the Cari.Tio case. there was also and functions between the legislative and executive
failure in the decision of the United States Supreme branches of government. This means assertions of
Court in the Lying case to relate the prestine form of executive power vis-a-vis the legislative power and vice-
the rule of law to the cultural heritage and religious versa.
beliefs and practices of the disadvantaged groups. Here
there was failure to apply the transforming norm of the
rule of law to the profit motive of the land developer.
Thus. a respectedjulisprudent was moved to permissible 173 Trtbe, L.H., op. cit.,128-129. lnlsAmerlcan case has some
, ,, value to Philippine jurtsprudence and case law in view of the fact
' anger when he stated that "the version of the rule of that there are also mlnortty trtbes scattered In different parts of
the Philippines with their own respective cullures and religious beliefs
and practices.
17242 Phil. 935, 944.
382 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 383

Montesquieu advanced the intellectual construct of checked and balanced has been masked in the sensitive
divided powers of goverunent into legislative, executive areas of the legal order, e.g.. political accommodations,
and adjudicative in order for each and every branch of shifting alliances, expanded franchises. big business in
goverrunent to be able to effectively check and balance goverrunent positions. interlocking directorships in
one another.174 The purposive elements of this principle goverrunent-owned and -controlled corporations, eco-
are to safeguard liberty by preventing the concentration nomic trade-offs. ignored or tolerated monopolies and
of goverrunental authority in a single person or body of cartels. exempted businesses from foreign investment
persons, to ensure efficiency in the performance of laws. political patronage, profit sharing.175
goverrunental functions, and to fix responsibility and
accountability in the exercise of such functions. (iii) Objectivism and Formalism

To the critical legal scholars. 't he principle of The dominant liberal paradigm has subtly utilized
separation of goverrunental powers and functions has the techniques of objectivism and formalism to mask its
maintenance of the status quo.
been obscured by the fact that to a great extent the
different branches of goverrunent have become the
The objectivism of the dominant liberal paradigm
means to power and wealth of the dominant liberal
attacked by the Critical Legal Studies Movement is not
class. In different words, "the legal order has become
the cognizable extrinsicality of legal concepts and legal
politicized to such an extent that goverrunental powers
rules. There is nothing the matter with stressing
are no longer separated, they are not even shared." This
ts evident in the manner in which the assigned functions objective reality. What the critical legal scholars have
of the different branches of goverrunent are either assaulted is the liberal view that the contemporary
legal order. including the built-in institutional struc-
performed or thwarted. It is also observable in the
tures that undergird it. is already sufficient to sustain
propensity of the dominant liberal class to get as many
society, and. therefore, no reason exists to change or
of its members and symphathizers appointed or
to complain about u.176
elected to the dillerent branches and offices of the
goverrunent. This phenomenon ensures the revolving
On the other hand, the formalism assailed by the
door practice where high goverrunent officials return to critical legal scholars is not so much the application of
the dominant liberal class after a few years of govern- legal rules on the facts involved in a conflict of interests
ment service and continue to influence and dominate as it is the assumption that the legal order is non-
goverrune.n tal policies. partisan in the adjustment of conflicting interests.
Thus, the classic construct of Montesquieu of a
goverrunent of separated powers and functions properly
l 75uNm::R. R.. T\-iECw·nCAL LEGAL SrurnES MoVJo::~n::NT, 33. Harvard
University Press. Cambridge.
174-riiE SP11~T OF 111E LAws. 149-152. Nugent Translation. l 76unger, R., The Criltcal Legal Studies Movement. 96 Harvard
Harvard University Press. Cambridge. Law Review, 565, 568.
384 LEGAL PlllLOSOPllY LEGAL REAusr PERSPECTIVE 385

With regard to over-dependence on legal rules. the mlnate. Courts have taken liberties with the statutory
dominant liberal paradigm assumes that legal reasoning. text either by creating dilierent rules or policies not fairly
on the basis oflegal rules, is delermlnate and credible.177 found or implied in the statute or by contradicting
CrtUcal legal scholars insist that this is not quite the existing rules or policies and substituting their own
case. In fact. legal reasoning can enduce or elicit judgments for those of the elected legislators. Critical
believable justification for any result.178 Legal reasoning legal scholars are deeply concerned about the dangers
has become internally conflicted and complicated be- of illegitimate decisions. For the critical legal scholars,
cause of contrasting interpretations of legal rules, let judicial activism is nothing but a euphemism for avoiding
alone contradictory statements of facts. the principle of separation of governmental powers.

The troublesome part of liberal formalism is that The authority of Justice Oliver Wendell Holmes is
it is possible lo find convincing ways to make legal even cited to support judicial activism. But Justice
reasoning acceptable. In Roberto Unger' succinct dicUon. Holmes did not posit the concept of judicial discretion
"experience has shown the disquieting sense of being in absolute terms. Holmes knew better. He guardedly
able to argue too well or too easily for t.oo many conflicting stated that while. "courts legislate interstitially; they are
solutions and because everything can be defended. confined from molar to molecular motion." 180 But, as
nothing can."179 By this Unger means that due to the slated earlier. this metaphor is obviously not an unquali-
internal contradictions of legal reasoning skillful judges fied endorsement ofjudicial elaboration. Justice Holmes
and lawyers are able lo advance plausible justification precisely stated that while judicial discretion cannot
for either side of a question and even support il with perhaps be avoided. nevertheless. the creative role of the
judicial citations. depending on which solution or result courts has no reason to move when there are no gaps
they choose lo uphold. Or. worse. one can even rea- in the statute. Plainly. Justice Holmes comparative
sonably draw opposite conclusions from the same legal imagery means that while courts can make law in-
rule. terstitially they cannot make law in a wholesale manner.
In other words, courts cannot enlarge the scope of a
(iv) Judicial Activism statute or rule to include matters which are beyond its
text or import.
Conventional wisdom recognizes judicial discretion.
otherwise known as judicial legislation. Whal outrages
Judicial activism based on molecular to molar
the critical legal scholars is the abuse by the courts of
motion is condemnable on several grounds: I) it reflects
the text of statutes which are not otherwise indeler-
only the personal or collective prejudices of the judges
on what the statute or rule should be. 2) it is an arro-
gant claim by a few unelected judges of a veto power
• 771dem
l 78Kennedy, D., Legal Education as 7ratning for Hierarchy.
David o~·s PoLmCS m· LAw. 47. lBOSouthemPac!{icRallroodCompany v.Jensen. 244 U .S. 205,
l 79unger. R., The Critical Legal Studtes Movement, 96 222, 37 S.Ct. 524, 531.
Harvam Law Review.
386 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 387

over legislation. 3) lhe legislators who are the representa- edent.184 This step provides the elected l gislalors the
tives of the people and politically accountable lo them, opportunity lo directly address the problem raised in the
nol lhe judges with an almost life-time tenure, are the court's dicta. In some such way, the policy-planning
ones lo make. modify. or change legislation. 4) courts and policy-making bodies can properly work out the
have no advantage over elected legislators and the former solution.185
are lo apply a statute or rule regardless of their
disagreement with its wisdom. 5) legislative facts and Critical legal scholars have another bone to pick
assessment of policy questions are entirely dilferent from in this regard. They cannot seem to overemphasize the
judicial facts and consideration of actual cases. and 6) point that judicial policy-making dulls the cutting edge
courts have no basis to create or contradict a statute of pure analytical reasoning. Putting the point in
or rule merely on advisability. another way. analytical reasoning is replaced by political
reasoning whenever courts engage in judicial policy-
'The indeterminacy of a statute or rule appears in making.186 In the diction of a constructive skeptic of
two forms. First. when a statute or rule is obscure or another era in jurisprudence. "when the emphasis on
vague. Second. when a statute or rule provides in- determinate rules are diminished in the adjudicative
conclusive guidance as to how rights are to be exercised process the result is not law but polilics."187
or how obligations are lo be performed.181 Even in these
cases. critical legal realism admonish the courts to Whether it is this or the other bone. for critical legal
preceed with utmost caution because lhe exercise of scholars judicial elaboration is nothing but a theory of
judicial discretion even in the permissible interstitial problem solving. It does not explain and clear up the
area is inseparable from the broader issue of separation actual issue or issues involved in a case. While a
of governmental powers and functions. The specific "decision" is rendered the. larger issue of the validity of
commentary is that il is the better part of wisdom to the exercise of judicial elaboration in an area reserved
"send ou l warning signals through dicta or similar lo lhe legislative .branch of government remains un-
devices."182 The reason for this cautious approach is resolved. And like a sleeping dog, the broader question
that dicta. whether judex dicta or obiter dicta are of validity is ready to bile again when aroused . Thus.
h armless for they are disowned by the ratio decidendL l 83 for the Critical Legal Studies Movement. judicial
For this reason. dicta do not qualify as judicial prec-

l84Abad v. Yance. 95Phil. 5i. An obiter dictum is an expression


181 F1schel. R, Some Realism About Critical Legal Studies. 41 of an opinion on a matter which has not been raised in the case.
University of Miami Law Review, 505. a
Ajudex dictum is an expression of an opinion on melter argued
182Branhizer. D.R.. Prophets, Priests and Power Blockers: by op~osig counsels but not essential to the disposition of the c,ase.
TI1ree Ftndamenta l Roles ofJudges and Legal Scholars. 50 Pittsburg 85\Vhite R., Prom Realism to Critical Legal Studies. 40
Law review. 145. Southwestern Legal Journal, 819.
183cardozo. 1:3 .. Law and Uterature in JuHJsl'HlJDENo: 1N Ac110N, l86Klare. K., The Politics, iv.
47. l87Frank. J .. What Courts Do in Fact. 20 Illinois Lw Review,
761. 778.
388 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 389

activism is an abdication of judicial neutrality and is clear. But in the case of Insular Life Assurance
what may even be worse, a conceahnent of the real Employees Association v. Insular Life Assurance Com-
grounds for the so-called decision. It, then, becomes pany Ud., 192 the Supreme Court proceeded to mask the
a mask to hide illegitimate adjudication of cases.188 In legal rule on the claim that "significant changes have
different words. the exercise of judicial activism from supervened as to the method of awarding backwages."
molecular to molar motion becomes a cover for the Instead of computing the amount of backwages from
interjection of the court's preferences.189 one determinate point in time provided in the legal rule
(date of withholding compensation) to another deter-
A Philippine case study will suffice to put this minate point in time also provided in the legal rule (date
particular concern of critical legal realism into focus. ofactual reinstatement). the Court in the case of Mercury
Drug Company v. Court of IndustTial Relattonsl93 fixed
In the field oflabor relations law,190 the determin- the amount to "a just and reasonable level of back-
ate legal rule on the question of reinstatement of dis- wages" without qualification. that is to say unaffected
crirninatorily dismissed employees is found inArticle 279 by wage increases or other economic benefits received
of the Labor Code of the Philippines. The only statutory in the meanwhile by the other employees who have
remedial step provided in the statute in order to remedy remained on their jobs. and without deduction. that is
or erase the unjust or discriminatory dismissal and to to say of income which the discriminatorily dismissed
punish the offending employer is reinstatement of the employees may have received from other jobs during the
employee, without loss of seniority rights. and payment period of discriminatory dismissal. What the Court
of backwages computed from the time compensation meant by "significant changes that have supervened as
was withheld up to the time of actual reinstatement.191 to the method of awarding backwages" and just and
reasonable level of backwages" were not made clear in
There is nothing indeterminate in this legal rule that the decisions. At any rate. they cannot prevail over lhe
needs judicial elaboration. The statutory remedial step legislative policy on the computation of the amount of
backwages expressly and clearly provided in Article 279
of the Labor Code of the Philippines.
188-rushnet. M., Fol.lowing the Rules Laid Down: A Critique of Four months after the Mercury Drug Company
Interpretation and Neutral Principles, 96 Harvard Law Review. 781;
Langille B.. Revolution Without Foundation: The Grammar of case. the Supreme Court. in the case of Feali University
Skepticism and Law, 33 McGill Law Journal, 465. Club v. Feati Universily. 194 abandoned the fluid judicial
189smtth, S., Law Without Mind. 88Michigan Law Review, 104. policy of "just and reasonable level of backwages" to be
190Prior to March 2. 1989 when Republic Act No. 6715 was awarded to discriminatorily dismissed employees. In its
approved.
19lu is of course another matter if the employee decides to
quit his Job after the issuance of the order of reinstatement. In this 19276
event separation pay Is In order. The Important point In labor relations SCRA 62.
law Is that the statutory remedial step had been taken and U1e right 19356 SCRA 694.
19458 SCRA 395.
signal sent to the employer ~roup.
390 L EGAL PHILOSOPHY LE.CAL REALIST PEI{Sf'l~CTIVE 391

stead. lhe Courl pul in place a dilTerenl judicial policy by lhe litigants is precisely the burden of decision-
fixing lhe said amount "lo a sum equivalent lo three making. 11le existence of a heavy docket is beside the
years employment without qualification and deduc- poinl. The focus is not merely lo gel things done by
tion." Realizing the rigidity of this judicial policy. the the m ere a pplication of a judicial formula regardless of
Supreme Court. in lhe case of Luzon Stevedoring whal is actually due the employees and workers bul lo
Corporation v. Court. of Industrial Relat.ions. 195 put in cons ider lhe cases on their respective merits no maller
pla ce yet another judicial policy fixing the amount of how difficult the task may be.
backwages ...flot to exceed the equivalent of three years
without qualifictaion and deduction. regardless of the As lo the third ground. all that need lo b e said is
actual period of dismissal. 196 The reasons given by the
n lhal il fails lo La ke inlo account what may be an even
Supreme Court for this lalesl judicia l policy are: 1) il worse possibility. nol entirely remote, thal insensitive
avoids loss of lime on the parl of lhe discriminalorily a nd uncaring employers may lake advantage of the
dismissed employees in preparing their evidence in economic plight of illegally or discriminalely dismissed
support of their claims. 2) il avoids loss of time on the employe~s a n9 workers, a nd willingly pay an amount
parl of the courl in appreciating the mass of evidence not exceeding three years (which could be less) in
which the liUga nls may have submilled. and 3) il backwages even lhough lhey may be responsible in facl
prolecls lhe employees discrimina lorily dismissed from for more.
accepling unconsciona bly low exlrajudicial settlement
of their cla ims for backwages. Since lhe perceived justification for the judicial°
policy on payment of backwages not exceeding three
As lo the first ground. it is nol really lhe concern years exerts no independent acceptability or applica-
of the Court. except when resorted lo as a dila tory lactic bility. lhen lhe judicial policy does not make any dif-
(which lhe Court is nol without power lo deal wilh). thal ference a nd has indeed become a judicial fallacy. The
lhe clairnants spend a good deal of lime in preparing allempl lo legilimize the judicia l policy in question
their evidence in support of their claims for back- trenches on lhe propriety and even wisdom of lhe
wages. Thal cannot be helryed. if thal is whal il lakes determinate period of lime laid down by Article 279 of
for them lo prevail in the litigation. Whal is important the Labor Code. lhal is from the da le of wiU1holding of
is for lhe unjustly or discrimina torily dismissed em - wages up lo the da le of actua l reinstatement of lhe
ployees and workers lo receive wha l are du e them employees and workers. In insis ting on its judicial
\ mder lhe la w. policy. U1e Supreme Court has ignored its own ruling
ex--prcsscd earlier in Tafrada v. Cuen co. 197 lha t lhe
Insofar as the second ground is concerned. il is norma Live principl or se paration or governme nta l
enough lo say lhal sorting oul the evidence presented pow rs is viola ted eve1ylime courts act in judgment of
0

lhe wis dom of Lhe action of a co-equa l branch of govern-


l956 l SCHA 154.
l 96pASCUAL. C.. LABOR RELATI O['.;S LAw. 155. Second E dition.
Premium, Press. Manila. 197 103 SC H.A 10 5 1. OlsPn "·Nebraska. 3 13 U .S. 236.
392 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 393

ment. To put this in another awy. the Court which is No. 6715 has a retroactive effect. the Court continued
short of technical knowledge or information in a difficult to apply its judicial policy before201 and even after
area of socio-economic policy "needlessly embarked on March 2. 1989 when Republic Act No. 6715, amending
an amateur's voyage"l98 in determining what sound Article 279 of the Labor Code of the Philippines was
economic policy is. Determination of socio-economic approved. 202
policies. e.g.. changes in the method of awarding
backwages to illegally or discriminatorily dismissed (v) Popular and Uberal Concepts of Democracy
employees and workers. properly belongs to the legis- The stinging critique against the type of democracy
lative body. This. Congress did with the enactment of advocated by the dominant liberal paradigm is that the
Republic Act No. 6715 amending Article 279 of the dominant liberal class is able to make its own prefer-
Labor Code. Congress brushed aside the judicial ences prevail therein. Thus. in this exploitative situation.
policies enunciated by the Supreme Court. Congress
sent an unmistakable signal to the Court that employ- Relations Commission. 190 SCRA 347, the Supreme Court began
ees and workers who are unjustly or discrirninatorily taking notice of Republic Act No .. 6715 but contradicted the Briad
dismissed from their employment shall be entitled to Agro ruling that Republic Act No. 6715 has a retroactive effect.
"full". not partial. payment of their backwages from the 201 Insular Life Assurance Employees Association v. Insular Life
Assurance Company. Ud., 76 SCRA 58; DurabUt Recapping Plant
time of withholding of compensation up to the time of
Company v. National Labor Relations Commission. 152 SCRA 328;
actual reinstatement. In effect. this legislative policy also D.M. Consunjt v . .Pucan. 159 SCRA 1051; Sy Chie Junk Shop v.
repudiated the vague "significant changes that have Federacion Obrero, 161 SCRA 143; Lepanto Consolidated v. Olegario.
supervened in the method of awarding backwages" 162 SCRA 513; JabaUas v. Construction Development Company of
to illegally dismissed employees. The amendatory the PhUipptnes. 165 SCRA 716.
legislation plainly provides that backwages even beyond 202Mariners Polytechnique School v. Leogard.e, 171 SCRA 597;
PhUtpplne National Company v. Leogard.e. l 71 SCRA 27; RIG Con-
the 3 -year compensation perioq fixed by the Supreme struction Company v. Amoqutz, 177 SCRA 151; Coca Cola (PhUtpptnesJ
Court must now be paid in "full" by the offending Inc. v. National Labor Relations Commtssion. 180 SCRA 651; Tan v.
employer .199 National Labor Relations Commission. 183 SCRA651 ; Medalo v. Court
of Appeals, 185 SCRA 80; Royal Undergarment Corporation of the
Philippines v. Court of Industrial Relations, 186 SCRA 278; BenUo
But notwithstanding the Supreme Court's own Morales v. National Labor Relations Commission. 200 SCRA 766. In
ruling in Briad Agro v. De la Cema 2oo that .Republic Act Santos v. National Labor Relations Commission. 154 SCRA 166.
decided on Spetember 21, 1989. the Supreme Court held that
employees who have been illegally dismissed are enUUed not only
l98Unued States v. Flores-Rodrigue-.l. 239 F.2d 405, 412 (con- to reinstatement to their former positions but also lo the payment
currin_fu8plnlon of J erome Frank). ofbackwages corresponding to the period from their illegal dismissal
Republic Act No. 6715. however, failed to address the up to the time of their actual reinstatement. And, yet. In succeeding
question of Interim income from other sources during the period of decisions, the Court returned to its judicial policy limiting payment
descrtminatmy dismissal as well as the Issue of the amount equivalent of backwages not to exceed the equivalent of three years. In the
to the period of.deliberate delay in filing the claim for backwages case of Salaw v. National Labor Relations Commission. 202 SCHA
and lh&r,:rtod used in looking for available suitable employment. 7, the Court reiterated the decision In the Santos case. However.
2 179 SCRA 270. In Sealand Services, Inc. v. National Labor the matter remains lo be seen.
394 LEGAL PHILOSOPJIY LEGAL REAusr PERSPECTNE 395
individual efforts to contribute to the welfare of society On the other hand, the critique against the cynical
seem pointless. type of democracy is that the dominant liberal para-
digm has virtually gained control of the government as
On the other hand. the critique against the ideal- well as the monopoly of the financial. production. com-
istic version of democracy is that it is awash with inapt mercial, and monetary involvements of the country.203
hope on and misplaced confidence in the majoritarian The reply of the dominant liberal class is that this has
rule and the theory of the consent of the governed. occurred only after hard, rugged competition. Critical
Abuses of the will of the majority and the exploitation legal scholarship trash this defense of entitlement as
of the consent of the governed are not uncommon. In self-serving. While it is conceded that there is still
the case of the principle of the rule of the majority. competition, the fact remains that the contest is still
practically no heed is paid lo the varying claims. among the elites themselves. the rest becoming social
demands and expectations of the people. In the case victims. In different words, the rugged competition
of the principle of the consent of the governed critical breeds oligopoly in the making of crucial decisions
legal scholarship agrees only with its basic premise: effectively controlling production. marketing and dis-
consent is necessary because nobody really has an tribution of certain goods and services. or cartelization
a priori right or claim lo govern anybody. The problem of prices by limiting output of goods and services
arises in the exploitative use and application of this through production quotas. The ultimate prize of
principle. The dominant liberal paradigm has managed power and wealth is great. like running the affairs of
to make the people believe that the idea of the consent government and reaping the concommitant economic,
of the governed involves nothing more than periodic political. social, and legal advantages. As Roberto Unger
elections to or rotations in offices at the different levels puts it, the elite who shrewedly seeks the support of the
of government. Moreover. it has been made to appear people through the electoral process and other estab-
that these activities are all that is needed for the survival lished representative institutions may just stop doing
of law and order. For the critical legal scholars. this so,204 especially when the domination of the socio-legal
may appear to be democratic in form but not in sub- order has reached its maximum intensity. When this
stance. The fact of the matter is that political parties situation is reached. the dominant liberal paradigm
are more often than not mere coalitions of elite groups becomes even more insulated from effective public
interested in having themselves and their representatives accountability.
and supporters elected or appointed lo important public
and private offices and associations. Thus. for critical (b) Transformation of the
legal realism. both the intellectual constructs of Uberal Legal Order
majoritarian rule and consent of the governed have been
There are two important means for the transforma-
subtly manipulated by the dominant liberal paradigm
to mask social divisions and material hierarchies it has
imposed on society. 203unger, R.M., The Critical Legal Studies Movement, 96
Harvard Law Review, 589.
2041bid, 581.
396 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 397

lion of the liberal legal order. namely. the norm of forming norm of basic equality is not so much the
basic equality. and the norm of democratic republican- production of social and material goods as it is the fair
ism. 205 and equable distribution thereof on the basis of indi-
vidual effort and merit so that none should be wanting.
(i) Basic Equality For critical legal realism. this transforming norm is the
best constitutional security not only against social and
The transforming norm of basic equality is not a material divisions but also againSt the dichotomy of
new intellectual construct for the melioration of the legal relations in terms of the places occupied by indi-
socio-legal order. It is traceable to Aristotle. He posited viduals in the social structure. 209 It is all a matter of
the concept of fair equality (epekei.a) as ajural postulate honestly implementing the transforming norm of basic
of natural law. Aristotle strongly felt that full equality equality promised in the constitution. The rationale is
could ruin social life. Thus. the premise for the dis- that the transforming norm of basic equality tilts the
tribution of the social and material goods of society is enviable objects of human desires on the side of the
fair equality, depending. naturally. upon individual disadvantaged class in society. In the charming post-
effort and merit. 206 liberal society. there is indeed social. political. economic.
educational. and legal equality.210
Justice Jose P. Laurel of the Supreme Court of the
Philippines echoed Aristotle in Guido v. Rural Progress Critical legal scholarship warns though that to the
Administratwn207 and Republic of the Philippines v.
extent that the contemporary liberal order fails to deal
Baylosis. 208 In these cases. Justice Laurel stated that with the struggle for basic equality. then. the legal
basic equality is not hypothetical but categorical egali- order. in the words of Unger. "sinks into desperate self-
tarianism. As a transforming norm. Justice Laurel saw concern and denial of commitment." This means that
nothing guileful in its dimensions or components when the legal order distances itself from the legiti-
namely. equality of opportunity. equality before the law. mate claims. demands and expectations of the people.
equality between values given and received, and the
equable sharing of social and material goods on the
basis of efforts exerted in their production.
209Johnson, c .. Do You Sincere ly Want to be a Radical? 36
Stanford Law Review, 359. During the almost four centuries of
In relation to the contemporary liberal socio-legal Spanish domination of the Philippines, the underclass were exploited
order. critical legal scholars emphasize that the trans- and subjected to the hierarchies of power and wealth by the dalgos.
hljosdalgos and Ulustrados. The situation did not Improve under
the American regime of nearly half a century. Al the present time.
social divisions and hierarchies still exist principally through the
205Bauman, R.A, The Communitarian View of Critical Legal tradiUun of the dominant liberal paradign of avid property holding
Studies. 33 McGill University Law Review, 295. 346. and progerty protection. .
206AmsT01LE, THE Pou11cs, V, 2. Ross Translation, Oxford 21 Alexander, L. and Schwarschild. M.. Uberalism. Ne uLralily
Universitv Press. London. and Equality of We lfare vs. Equality of Resources, 16 Philosophlcal
20784 Phil. 847. and Public AJTairs, 85.
20896 Phil. 461.
LEGAL REALIST Pt;RSl'ECTIVE 399
398 LEGAL Pl llLOSOPI IY

then, it becomes concealed and denies its basic com- tcle II, Section 1. of both the 1935 and 1973 constitu-
mitment as an instrument in balancing the conllicting tions declares the principle that the Philippines is a
or overlapping wants and interests of the different republican stale. This pronouncement was deepened
sectors of society. considerably in Article II. Section 1. of the 1987 con-
stitution which declared as a national policy that the
(ii) Democratic RepubUcanism
Philippines is a "democratic and republican stale." A
member of the 1986 Constitutional Convention
The transformation of the contemporary liberal thought thal there was something wrong with the
legal order can also be achieved by the guiding principle syntax of this national policy and. forthwith, state~ that
of democratic republicanism. This vision underscores the new policy declaration could be excused as a
the proper relationship that should exist between pardonable redundancy."
society and the legal order. that is to .s ay lhe essential
features of the social organi7..a.tion as well as the basic In critical legal scholarship. the policy declaration
rights and entitlements of the people which must be in the 1987 constitution is nol mere use of more words
protected by the government al all cost. 211 This means than is needed to convey the critical legal concept of
lhal the post-liberal polity musl nol only be democratic republicanism. To put this in a different
republicanized, lhal is lo say established and organized way. a republican form of legal order can be democ-
by lhe citizens in their conslilution. but il musl also be ratic when the supreme power of governance is reposed
democratized. thal is lo say social division and economic in the people. or it can be elitist when said power is
hierarchies musl be eradicated and universal suffrage, possessed by or concentrated in a select portion of the
genuine representative institutions and freedom of people. Democratic republicanism is a distinct intel-
expression including the benefits of the print and lectual construct for the transformation of the domi-
electronic media lo make such freedom po~sible and nant liberal paradigm which merely entrusts policy and
worthwhile musl be guaranteed. ·Thus, in the posl-liberal tt•213
politics to "an aristocratic and corporatlst groups.
society envisioned by critical legal realism governmental giving rise lo selfish management of law and govern-
powers can be exercised harmoniously wilh the en- ment.
joyment oflhe basic rights and entillemenls of lhe people.
The framers of the 1987 constitution made it
ll is noleworlhy lo consider and learn from the abundantly clear in Article II. Section 1. of the 1978
Philippine experience in relieving lhe tensions ex.isling constitution and in their deliberations on lhe maller
between social liberalism and true democracy. 2 12 Art- that they were motivated by two special considerations
in positing lhis new policy declaration. First. they
211 Unger, R. The Crtltcal 1.Rgal Studies Movement. 96 Haivard wanted lo make a very clear and firm slalemenl in the
Law Revlew. 520-521. · .
212r111e word "democracy· was coined by the Greek historian
Herodutus by combining demos, which means the people, with 213unger. R.M .. The Critical Legal Studies Movement, 96
kmll•ln. which mea ns to rnle. In the original setting. then, democracy Harvard Law Review, 567-568.
means the rnle of the people.
400 LEGAL PHILOSOPHY LEGAL REALIST PERSPECT!VE 401

constitution of the manifestations of a republican The first has to do with the concept of economic
state. 214 Second, they also wanted to repudiate the justice. that is to say equitable di1Tusion of surplus
contemporary elitist paradigm and its control over the revenue or profit for the benefit of both labor and
social, political, economic, and legal facts of society.215 capital. Article II, Section 6, of the 1973 constitution
contains an express policy declaration that the slate
Could this promising policy declaration in the 1987 shall equitably distribute profit between labor and
constitution and the intentions behind it be taken as capital as a means of promoting social justice.
the harbinger of the charming vision of the proponents
of the post-liberal society? In light of the express policy Tue term "profit" refers to surplus revenue. This
declaration and the professed intentions behind it, are needs a brief explanation. The amount of labor ex-
there positive provisions in the 1987 constitution pended in the production of goods and services to cover
suporting and effectuating the deconstruction of the the wages of employees and laborers is called "necessary
dominant liberal paradigm? labor." Thus. the value of the products created by
necessary labor plus the costs of the fixed and constant
Unfortunately for the vision of a transformed liberal entrepreneurial investment. e.g.• cost of capital inventory
society, the records of the 1986 Constitutional Conven- spread over a definite period of time, raw mate:r:ials,
tion fail to show any familiarity with the philosophy of interests payments. power charges. is the "necessary
critical legal realism. What is evident in the record is value" of the said products. The worth. U1en, of the
the clash of special interest-groups represented in the products created beyond "necessary value" is "surplus
constitutional convention. Ironically, those who crave revenue." This. plainly speaking. is profit.
for the changes were the ones who let the opportunity
slip by. And those committed to sanctify contemporary Tue categorical policy of equitable distribution of
social liberalism in the constitu.tion were the ones who profit as a means of promoting social justice provided
managed to blunt the expressed desire to do away in the 1973 constitution was completely eliminated in
with the traditions of the dominant liberal paradigm. the 1987 constitution. Unlike Section 6 of Article II of
They simply waited for the opportune time and once the 1973 constitution. Section 2 of Article XIII of the
again succeeded in writing and even strengthening 1987 constitution simply equated the promotion of
their own hidden agenda of social divisions and econo- social justice with a mere commitment to make avail-
mic hierarchies in the 1987 constitution. able economic opportunity based on initiative and self-
reliance. Obviously. the categorical mandate to equi-
One or two examples will suffice. tably distribute "surplus revenue" or profil between
labor and capital as a means of promoting social
justice provided in the 1973 conslilulion is a good deal
more than U1e promise to provide economic opportu-
2 14Rr.com >.s OF nr~~ 1986 C0Ns1T1V110NAL CoNVENllON, Volume IV, nity as a means of promoting social justice provided in
650, 683, September 16, 1986. the 1987 constitution.
· 21 5lbid., Volume IV, 752. 766-69, September 18, 1986.
"
402 LEGAL Pl IILOSOPHY LEGAL REALIST PERSPECTIVE 403

Neither can it be claimed thal the recognition of mentioned in Section 1 of Article XIII of the 1987 con-
the share of labor in the "surplus revenue" or profit stitution refers to the national patrimony or national
expressed in Section 3 of Article XIII of the 1987 con- assets, e.g.. disposable public lands. national income,
stltu Uon is the same as the categorical mandate of natural resources. This type of wealth the state must
Section 6 of Article II of the 1973 constitution to equi- diffuse equitably to all citizens in order to reduce eco-
tably distribute profit as a means of promoting social nomic inequality.
justice. Nor is the declaration in Section 3 of Article
XIII of the 1987 constitution the same as the policy Thus, the framers of the 1987 constitution cannot
declaration contained in Section 6 of Article II of the be said to have benefited from the guiding light of
1973 constitution. The former merely states that the democratic republicanism as a means of transforming
workers and laborers who helped in the creation of the the contemporary liberal society. They failed in their
fruits of production shall be entitled to a just share of professed deconstruction of the dominant liberal
such fruits. But what precisely is the meaning of paradigm. In a word, Section l of Article II of the 1987
created fruits to which labor has a share? This is all constitution declaring the Philippines a democratic and
veiy vague. Does it refer to the "necessary value" of republican state remains a · hallow proclamation in-
the fruits of production? If it is. then. there is nothing deed.216
lo which labor can further share in. The cost of
"necessaiy labor" plus the cost of constant capital D. 'IRANSFORMATIVE CONTENT OF

investment is the "necessary value" of the fruits of POST-LIBERAL ORDER

production. It cannot be overemphasized that there To the critique that the vision of the post-liberal
is not even a hint in the declaration contained in order has no place in reality, the Critical Legal Studies
Section 3 of Article XIII of the 1987 constitution of Movement takes courage and comfort in the thought
"surplus revenue." This is where labor should have a that people have kept on visionizing as they have done
just share. in the past. And all is not waste. It is amazing how
centuries after their passing a good many of their ideas
Section l of Article XIII of the 1987 constitution have prevailed even today.
mandates Congress to enact laws that would reduce
economic inequalities by dilfuctng wealth. Again this There is no detailed blueprint of the structure of
is nowhere near the mandate of Section 6 of Article II the post-liberal order. It is wiser not to repeat the errors
of the 1973 constitution to equitably diffuse "surplus of the past.217 The details are better left to each society
revenue" or profit. In fact. they refer to two veiy different
concepts. Section 1 of Article XIII of the 1987 consti- 2 l 6nie other example Is discussed In the section dealing with
tution by no means refer to the wealth of the capitalist. the reconstruction of the system of rights on pages 408-413, infra.
Even this kind of property enjoys the constitutional 217West, C .. Reassessing the Critical Legal Studies Movement,
34 Loyola University Law Review. 265, 266; Tushnet, M.. CriJ.tcalLegal
protection of due process of law. This kind of property
Studies: An Introdudton to Us Origin and Underpinnings, 36 Journal
does not refer lo "surplus revenue" or profit. The "wealth" of Legal Education, 505, 510.
404 LEGAL PHILOSOPHY LEGAL REAusr PERSPECTIVE 405

for consideration depending upon their social temper The resolution should include several elements.
and particular needs. But Roberto Unger feels strongly First. the branches of government, regardless of
that the conceptualization of the transformed socio- number. should themselves be designed to be account-
legal order must take into account two prime consid- able to the people.22l Tiiis step goes a long way in
erations: 1) the post-liberal socio-legal order must not deconstructing the elitist concept of governmental
fall hostage to any faction therein,218 and 2) the trans- authority. In a different way of putting it, real check
formed socio-legal order must always be alert for op- on the exercise of governmental powers is hardly
portunities to eliminate social divisions and economic present in the ctontemporary system of checks and
hierarchies in society.219 To avoid the first and realize balances. The different branches of government as well
the second. Unger proposes, among others. the de- as their support agencies are not really subject to
centralization of government. reorganization of the popular accountability. In the dominant liberal para-
market economy, and the reformation of the system of digm there is no kratein in demos.
rights. 220 These transformative contexts can be
adopted seriatim if they cannot all be implemented at Second, there should be greater dispersal of gov-
the same time. ernmental powers. functions and resources down to the
regional level of society.222 This means devolution of
(1) Decentralization of Government legislative and executive authority. It should include
empowerment of the people to propose constitutional
In the established version of most forms of govern- amendments and legislation, approve or reject in whole
ment. two factors stand out. namely. the avid com- or in part statutes passed by the legislature upon a
petition for social and material goods, and the extem- certain percentage of the vote of all citizens. and recall
poraneous and irresponsible uses of governmental of officials who have abused their offices. With this grant
powers. These problems are traceable to the fact that of authority, both national and local governments can
the very devices for restraining avid competition and co-exist and, in this way. the national government cannot
unjustified exercise of powers, e.g., due process of law, become too strong for its own good. However, the
checks and balances. also tend to cause impasse or devolution of regional initiative must be subject to
standstill in the implementation of such devices. For constitutional approval in order to preserve the unity
the critical legal realists, the legal ordering of society and peaceful existence of the state. ·
has been hampered by too much check and too little
balance in the execution of programs. projects and This transformative context is not contrary to the
activities, especially in the exercise of executive power social interest in the general security. After all, the
vis-a-vis use and practice of legislative power. regional political units are the real fort where expert-

218unger, R.M.. The Critical Legal Studies Movement, 96 221 Ibid., 593.
Haiva rd Law Review, 588. 222rdem
219lbtd., 500.
220Ibid., 586.
406 LEGAL PHILOSOPHY LEGAL REAL1sr PERSPECTIVE 407
ments in democratic republicanism are put to the test. 223 barrassed by the mechanisms of monopolization and
Moreover. experiments at the regional level are relatively cartelization. Moreover, economic control resides in the
free from the domination of the majoritarian rule since hands of mega-business with interlocking satellite
it is the consensus-process that is more the measure businesses and other forms of economic ventures. In
of agreement at the regional level. Such a political the contemporary market economy. it is the dominant
exercise does not generally suffer from political frustra- liberal group that has open and unlimited access to the
tion so often encountered at the national leveI.224 capital funds. Thus, the medium- and small-scale
enterprises become dependent to a large extent on big
The third step involves the quick and clear reso- business. The result is that medium- and small-scale
lutions of conflicting or overlapping interests among the businesses have virtually no access to public and private
branches of government. The evolutionary or gradualist resources which threaten their viability. 226 This be-
type of decision-making is not workable. This is not comes a hindrance to the realization of the interest of
as startling as one might suppose it is. As pointed out society in the economic progress. 227 The legal order
earlier, this is one of the indicia of the flawed liberal which merely pays lip service to the principle of equality
polity. of opportunity will remain a divided and hierarchied
society.
The fourth step in the decentralization of govern-
ment is concerned with the party in power. In the post- For the critical legal scholars. the reorganization
liberal society. the party in office will not only take charge of the market economy means the equitable assign-
of the governmental machinery but will also seive as ment of ..the more or less absolute claims to the divis-
the program council of government. 225 In practical ible portions of the social capital to guarantee a constant
terms. this means responsible, accountable party flow of new enterprise in the market economy.228 By
government where politics is not insulated from public "divisible portions of the social capital" Roberto Unger
scrutiny and where governmental positions and offices means a public rotating capital fund established by the
are not considered as personal entitlements or state to be periodically shared at reasonable interest
hereditaments. rates. 229 The fact behind this proposal is the lack of
adequate working capital for the medium- and small-
(2) Reorganization of the Market Economy scale enterprises.
In th.e established version of the economy under-
There are two constraints for the success of the
l}ring the dominant liberal paradigm, the system is em-
reorganization of the market economy. One is the

223Frug. G., 'The CUy as a Legal Concept. 93 Harvard Law


Review. 1059. 1145, 1151. 226Ibid.. 594.
224 Jbid., 1072. 2271dem
225unger, R.M.. Tite Crilical Legal Studies Movement, 96 228 Ibid.. 593,596.
Haxvard Law Review, 594. 229Ide m
408 LEGAL. PHILOSOPHY LEGAL. REALIST PERSPECTTVE 409

possibility. nol entirely remote, of lhe merger of al paradigm as its discretionary area of enjoyment. The
domestic entrepreneurs inlo another hierarchy of underclass. then, becomes exceedingly dependent on
rrtarkel organization. The other is lhe rapid population the market mechanism of the dominant liberal
growth which puls a severe and continuing strain on class. 2 32 Putting it rather inelegantly. the rich becomes
lhe economy and natural resources. If these concerns richer and the poor poorer. To the critical legal scholars.
are not properly addressed. then lhe market economy the existing system of economic liberalism is a mask
will become depressed. If. on the other hand. they are to cover the hold of the dominant liberal paradigm on
properly· attended then the threat to the social interest the economic order.
in the economic progress would be reduced. Thus, the
shibboleth "free competition" would no longer be a mask The Philippine experience insofar as property
for favored deals and accomodations between govern- protection is concerned is quite revealing. In the 1935
ment and big business or between government and and 1973 constitutions, the reference to property was
favored parties.230 plainly and unmistakably in the nature of individual
right against its taking. The familiar provision is that
(3) Reconstruction of the . System of Rights no person shall be deprived of property without due
process . of law. Thus, the government and private
The Critical Legal Studies Movement . views the· individuals cannot take away property without prior
contemporary system of rights and obligations as in- compliance with both· substantial and procedural due
adequate in eliminating social divisions and economic process. The 1987 constitution has taken the reference
hierarchies. Critical legal scholars explain· that contem- to property to another dimension. from protection of
porary liberal .c oncept of rights and obligations is dominion in property to protection of interest in value.
based on elitist co~ditions of avid property holding Frorri the perspective of critical legal realism, this is elitist
stabilized by power and wealth. These are the con- economic liberalism. 233
ditions thal make il easy for the dominant liberal
paradigm lo victimize the people. As Unger puls it, these The Critical Legal Studies Movement is of the view
conditions have been nurtured by the dominant liberal that the contemporary system of rights is not sufficient
paradigm "as ils zone of free will which neither the to resist the influence of the dominant liberal paradigm.
government nor. private individual~ may invade. 231 The In the vision of a post-liberal socio-legal order. newer
dominant liberaf paradigm defends this economic turf rights have to be instituted to overcome social divisions
against any interference m: J,nfringemenl. · and hierarchies.234 Jbese new entitlements are called
Thus, the concept of "right" and ils correlative
concept of "obligation" are viewed by the dominant liber-
232.zmN, N .. ThE CoNSPIW\CY OF 111~: I.Aw IN 111E Ru1F. OF I.Aw, 87,
WolJT, R .. Editor. Simon and Shuster. New York.
230Ibid.. 504.
2 33unger. RM., The CrUical Le9al Studies Movement, 96
231 /btd .. 597. Anum. M .. _W~: How 1l11s ThUTit, 137. 139. Harvard Law Review. 599.
234 lbid.. 599. 600.
Macmlllan Press. New York.
410 LEGAL PHILOSOPI IY LEGAL REALIST PERSPECTIVE 411

"resistance right." "destabili7..ation right." "solidarity The other function of the equal protection of law prin-
right." and "market right." ciple is to prevent the government itself "from estab-
lisWng or reinforcing collective disadvantages posing a
"Resistance right" gives individual persons author- great danger to the legal order, "238 e.g.. block voting
ity to strive against and be able to repel interferences whereby certain persons are made to count for more
with their vital security inthe social and economic areas than one to the prejudice of the broader sector.239;
of life. Unlike political and civil rights. resistance right
has been neglected even though this type of right For critical legal realism, the equal protection of
insures a form of immunity from the constant , the law principle is simply not adequate to protect
struggles of politics. In the serious political process and individuals against collective tyranny. The principle of
social experimentation to secure property rights and equal protection of law is not enough to destabilize any
political power. it is the vital security of the individual one institution or segment of society falling under "the
that is often sacrificed. Tilis type of right "gives the heels of its own interests and opinions. "240 By this
individual the fundamental sense of safety that Roberto Unger means that the generality-correcting
enables him to accept a broadened practice of task of the equal protection clause is not enough to dis-
collective conflict without feeling his vital security rupt established institutions that have contributed to
endangered. "235 Roberto Unger warns that if "a person social divisions and economic hierarchies that the
lacks this assurance. the institutionalized contro- constitution wants precisely to avoid. This type of right ·
versies and reinventions of social life will quickly be- insures that institutions do not accumulate power that
come intolerable for him, and he will see each as a may insulate them from challeng~ and accountability.
threat to himself."236 Under the dominant liberal paradigm with solicitude
and tendency for avid property holding and protection, '
"Destabili.7..ation right" is the extension of the equal even the accountable branches of government may fall .
protection of law principle in constitutional law. The under the control of entrenched segments or institu-
equal protection of law principle was posited to bar tions and. thus. fail to protect the people.
discriminatory legislation against individuals.237 The
reason for this principle is that discriminatory legis- The problem is compounded when the collective.
lation violates human dignity. Some well known ex- disadvantage becomes pervasive that the state itself is ·
amples are ex post pacto laws. bills of attainder. reli- unable to correct the problem by normal political
gious test for the exercise of civil and political rights.
238unger. R. The Critical Legal Studies Movement. 96 Hruvard
235Jbid.. 600. Law Review. 603.
236UNGF.:R. R. FA1.sF; N~::o:ssnY: Aml-NEO:SSrTAl~AN Soc1AL Tt1EOHY
239unger calls this the "generality-correcting task" of the equal
IN lllE S~:IWJCE OF' RADICAL DEMOCRACY,514. protection clause.
237unger calls this the ·gener.ility-requlring task" of the equal 240unger. R. TheCrilfcalLegalStudiesMovement. 96 Hruvard
protection clause. · Law Review, 605.
412 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTIVE 413

means.241 Here the collective disadvantage of a government is not also primed to discharge this awesome
segment of society finds itself denied of the "substance responsibility because it cannot avoid "censorial
of citizenship and rightholdlng... The result is that the superpolitics."245
segment concerned becomes socially and politically
isolated and defeated. and the oppression itself ~Solidarity right" gives every individual members of
insulated from public opinion and challenge. An society the right to establish areas of reliance among
example is mass compulsory relocation of persons based themselves. The objective is to exact the performance
solely on race. religion, or class. regardless of citizenship of responsibilities in order to enjoy along with others
and open courts. the unified life of society. 246

For Roberto Unger. destabilization right provides "Market right" establishes the claim which every
the people an opportunity to revise the rigidities of niember of society may make against available social
existing legal order where consolidated property rights capital established by the state and enables every
and freedom of contract reside at the very center.242 member of society to question concentration of con-
In other words, destabili7..ation right corrects the col- cessions of natural resources in one individual or group
lective disadvantage by prohibiting the state from of individuals. 247 This right is not the same as the
becoming a party to the oppression and obliging the claim on the traditional capital resources controlled
government to distrupt the exercise of authority which and enjoyed by the dominant liberal class and its
had become insulated from democratic conflict. 243 allies.248
According to Unger, the implementation of the
destabili7..ation right needs a separate branch of gov- F.° FUNCTION OF LAW
ernment whose members are directly elected by the Critical legal realism has shaken the foundation of
people. It should be constitutionally empowered to the central ideas of contemporary liberal legal
exercise and discharge this duty to break down arrange- thought. 249 It has unleashed an intense challenge to
ments. interests, and institutions which have succeeded the traditions of the dominant liberal paradigm. Critical
in entrenching themselves.244 The judicial branch of legal realism has been successsful in undermining the
government is not the ideal institution to assume this liberal interpretation of law and government. And there
important task because adjudicating officials are not is agreement among proponents and opponents alike
subject to electoral control. The judicial branch of

2 41 Ibid.. 604-606.
245Ibid. 613.
242UNGEH. R. Fru.sE Noc~:ssm: ANTI-NEcF.SSrrARJAN Soc:1AL THEORY 246/bld.. 600.
247/dem
IN THE SERVICE m· RAJ)ICAJ, DEMOCAACY, 27.
243unger. R. The Cri11cal Legal Studies Mouement. 96 Hruvard 248/btd.. 599.
Law Review. 612. 613-614. 249Russell. J., The Cri1tcal Legal Studies Challenge t.o Contem-
porary Mainstream Legal PhUosophy. 18 Ottawa Law Review, l.
2 44 Ibid.. 614.
414 LEGAL PHILOSOPHY LEGAL REALIST PERSPECT!VE 415

that critical legal realism is "the most extensive and printed volumes containing articles, essays. studies. and
influential critique of liberalism in recent memory. "250 notes wWch have been published annually since 1957
under the title Scandinavian Studies in Law. From their
To avoid misunderstanding, Roberto Unger empha- works wWch have been translated into the English
sized that critical legal realism is a staunch advocate language an overview of psychological legal realism can
of another conception of law. one wWch Wghlights the be made. 252
desirable relation of law to society in general.251 As
Unger puts it. critical legal realism views the law. as an A. CRITIQUE OF JUDICIAL LEGAL REALISM
instrument to redeem the people from social divisions According to Alf Ross. the perceptions of Holmes,
and economic hierarcWes. Critical legal realism is. in Gray and Frank that the law is indefmable without
a different way of putting it. an advocacy of the law as dealing with the environmental and predispositional
a neutral and objective means of social control with metalegal factors operating in the judicial process suffers
emphasis on its liberating function. Only when the law from the failure to separate the issue of validity from
is neutral and maintains Us neutrality in the inevitable the question of reality in the judicial process.253 The
conflict of claims. demands and expectations can point raised by Ross is that there is over-reliance on
everyone in society accept it as a means of social control the role of the metalegal stimuli in the judicial process
and feel safe and secure from illegitimate divisions and and overemphasis on the vicissitudes of fact-fmding in
WerarcWes. the courts. For Ross, then. Holmes, Gray and Frank
did not quite acWeve the realism in law that they had
51. PSYCHOLOGICAL LEGAL REALISM sought. 254
Psychological legal realism is an approach to the
study of the nature of the law and is pursued by a small B. CRITIQUE OF LEGAL IDEOLOGY
but vigorous group of Scandinavian jurisprudents. Vilhelm Lundstedt. however. complimented the
Among those who paved the way were Axel Hagerstrom legal realists for their efforts "to free themselves from
( 1868- 1939), the acknowledged founder of psycho- all prejudices of legal ideology based on abstract
logical legal realism, Vilhelm Lundstedt (1882- 1955), values."255 For Lundstedt. legal ideology may appear
Karl Olivecrona (1893- 1963) and Alf Ross (1894-1974).
The Scandinavian legal realists have written on a wide
range of subjects. Aside from books, there are now 37
252A bibliography is found in Orfield, L .• A Survey of
Scandinavian Legal Philosophy.1956 Wisconsin Law Review. 448,
585.
250Levenson, S.. Escaping Liberalism: Easier Said than Done. 253Ross. A, ON mE LAw ANO JusncE, 280. Elnar Muskgaard.
96 Harvard Law Review. 1466; Stick. J., Can Nihilism be Pragmatic?, Copenha;!en.
100 Harvard Law Review 322: Ackerman. B.. Law in the Activist 254Ross. A., TowARO A REA1.1S11c JuRJsPRUOENCE. 11. Elnar
State, 92 Yale Law Journal. 1083. MuskJlaard, Copenhagen. ·
251 Unger, R. TI1e Cri1.ica l Legal Studies Movement, 96 Harvard 2551...uNDSTEDT, V ., LEGAL Tu1NKJNG REvlsEo, 9. 16. Almquist &
Law Review. 563. Wiksell. Stockholm.
41.6 LEGAL PHILOSOPHY LEGAL REA.LIST PERSPECTIVE 417

in several forms, e.g.. the theory of natural law. the meaningless. The reason. according to the Scandi-
theory of social interests secured by the legal order with navian legal realists, is that the adjectives "just" or
the .minimum of friction, the theory of the ·c onsent of "unjust" do not suggest any known quality of a statute
the governed to the will of the supreme political or rule for, indeed, when a statute or rule is adjudged
superior. 256 According to Lundstedt. the insistence of as either "just" or "unjust" it is nothing but an express-
legal realism on certainty and predictability in the legal ion of a"person's own opinion or preference that he or
order, commendable though it may be. is relatively less she likes or dislikes a statute or rule. And the idea
problematic than the danger posed by legal ideology. of s~urtng all social interests over and above indivi-
dual and public interests even with the minimum of
· The peril to be avoided in legal ideology is that its friction is still ideological,261 even though expressed in
intellectual patterns · are abstract and vague. Axel a· somewhat unusual way. 262 As to the concept of the
Hagerstorm feels that legal ideology .;is nothing but a binding force of law based on the consent of the gov-
private state of mind."257 In other words. legal ideology erned to the will of the supreme political superior this
does not have a fixed meaning but depends on the remains verbal magic or contradiction in terms. For
preferences of its proponents and interpreters. Vilhelm if the existence of the legal order is based on the consent
Lundstedt points to the hazard pf imparting objective of the governed, then, it follows ineluctably that the
existence to subjective ideas·and notions and to do so withdrawal of the ·c onsent would mean the cancel-
is "to engage in monstrous contradiction, "258 or what lation of the legal order itself.
R W.M. Dias and G.B.J.. Hughes call "word-magic in
law. "259 Karl Olivecrona adds that the propensity to C. NATURE OF LA.w
objectlvize abstract values in the analysis of the nature The psychological legal realism of the Scandin-
of the law and its component system of jural relations avianjurisprudents is best expressed byVilhelm Lund-
gives the wrong impression that such values .have real stedt. He states that legal activities; that is to say
basis when there is none.260 legislation, execution of statutes, and adjudication of
cases are essential to the social order, and to assure
Thus, to characterize a statute or rule as "just" the legal ordering of society the law and its component
or "unjust" in terms of the natural law theory. is jural relations must be based on the "feeling for justice
prevalent and current withiil society."263 This is dilferent
from the concept of justice propounded by the natural ·
256Jbld.. 394, 395.
law philosophers264 which indicates or points to "the
257HAm:RSTI«>M. A . INQUIRIES.INfO 111~: NATI.IRE OF LAw AND Moiw.s.
328. Almquist & Wi.k,sell. Stockhohn.
258Lundstedt, V .• Tile Relation Between Law and Equity, 25
Tulane Law Review, 59. · 261WNDSTEITT, V ., Op.Cit., 346-347.
25901AS, R.W.M. and Hucm:s, G.B.J., JurusrRUDENCE, 468, 262 Jbid.. 351.
BuHeIWorth & Company. London. 263 Jbid.. 159.
260oJivecrona. K. . ScANrnNAVIAN Snm1~:s 1N LAw. 127. 264Jbid.. 136. 138, 159, 178.
418 LEGAL Pl-llWSOPHY LEGAL REALIST PERSPECTrvE 419

one and only solution. "265 Vilhelm Lundstedt explains reality of law and jural relations as social facts is based
that this appreciative perception of that which is good on the general human feeling that what is good for
for society does not point to just one and only solution society is paramount. As Olivecrona puts it, laws
of the problem. 266 Thus. for Lundstedt, the feeling for involve behavior patterns since they deal basically with
the good of society is the substance that gives meaning the exercise of rights and the performance of oblig-
to the legal ordering of society.267 ations. Indeed. ihe purpose or thrust of the law is to
influence human behavior. Thus. for the Scandi-
Thus, for psychological legal realism, the law and navian legal realists, the legal ordering should be on
its component system of jural relations are real be- the psychological mode, that is to say on the basis of
cause they are social facts. 268 The evaluation, then, the feeling for what is good for society.
of the law and jural relations is no longer left to axio-
logical criteria but to the feeling of what is good for Since the law is a means of influencing and regu-
society. The law and its component system of jural lating human behavior it follows that the binding force
relations are thus open to public. not private, evalu- of the law is no longer on the illusory idea of the consent
ation.269 of the governed. For the Scandinavian legal realists
the jussiveness of the law is found on the fact that it
But a problem arises in this regard. It appears that is binding psychologically. This is observable in the
the analysis is still based on word-magic. For if the unremitting impulses and pressures which drive the
law and jural relations are social facts open to public individual members of society to act or not to act with
evaluation on the basis of the feeling for what is good a feeling for what is good for society.
for society. then there is still a judgment of value in-
volved. Alf Ross describes this psychological compulsion
to obey the law as ~a general behavior feeling and
Vilhelm Lundstedt explains that the feeling for attitude of complying with and respecting the existing
what is good for society is not an abstract criterion but order of things." In a dillrenet manner of saying it.
a fact of conscious behavior since it is psychologically these psychological pressures and impulses lead to
real.270 Karl Olivecrona adds his perception that the regularity of behavior to comply with the law as well
as the rights and obligations flowing fromjural relations.
The obligatory na~ure of the law, then. becomes ac-
265Ibid., l 71. ceptable to society malting enforcement thereof largely
2 66Jbld., 137.
267 Ibid.. 140,149.
unnecessary yet obtaining the desired results.
2680uvECHONA, K., LAw /IS FACr, 6-7. Oxford University Press.
London; HAGEHSTI~M. A. INgu1wES wro THE NA1URE OF LAw AND Morw.s, Thus, for psychological legal realism. it is rather
328. Almquist & Wiksell, Stockholm; Lundstedt. V., 1he Relation surprising that the legal positivists could view the law
of Law· and Equity. 25 Tulane Law Review, 59. as the will of the supreme political superior based on
269LuNosn:1rr. V .• op. cu.., 136; 0UVECHONA, K. op. ciL, 7 .
270Lundstedt, V .. 1he Relation of Law and Equity. 25 Tulane
the imaginary consent of the governed and still claim
Law Review. 65. that its jurisprudence is positive or real.
420 LECAL PHILOSOPHY LECAL REALIST PERSPECTIVE 421

D. JuRAL RELATIONS then, is under a legal inability to assert his or her legal
claim. The other example is the exemption from re-
The jural relation - right: obligation - is the basic sponsibility for what could be a case of liability but for
jural relationship of individuals to other individuals and the existence of a legal immunity. The serous in this
of individuals to the state. This jural relation represent case is under a legal disability to assert his or her legal
the ultimate connection to which all legal facts, legal power.
things, and legal persons are reduced. ·
But the Scandinavian legal realists question the
In the Philippines, there is an express reference assertion thatjural relations exist due to the guarantee
to jural relations although not presented with particu- of legal enforcement by the courts.272 The plausibility
larity. The Civil Code of the Philippines defines juri- of the critique becomes vivid when one begins to
dical capacity as the fitness to be the subject of legal objectlvize or identify that which is called a "right" or
relations and is inherent in every legal person and is that which is called an "obligation" with some actual
lost only through death. 271 In psychological legal re- situation.
alism. when a person enjoys a "right" someone, some-
where, sometime has the burden of the correlative "oblig- To highlight this problem, Axel Hagerstrom provides
ation". But no person can have both poles of a jural an encompassing example: the legal concept of own-
relationship because "right" and "obligation" are jural ership. The perception of ownership is that it is recog-
opposites. nized by law and protected in court. It is here that the
trouble begins. First. the guaranteed "right" is obviously
Jurisprudents who have written on the subject not truly inviolate. To the argument that there is
agree that there are four typ~s of jural relations, to wit: nothing to recognize and protect unless ownership is
(1) the claim-duty relation violated. Hagerstrom stated with confidence that if this
(2) the power-liability relation is so, then, the very existence of the "right" is in real
(3) the privilege-inability relation trouble when the facts supporting ownership are not
(4) the immunity-disabilil}'. relation proven in court or the case is dismissed due to tech-
nical legal rules on prescription of actions. 273 Dillerently
There are those who contend that there are only stated, the protection guaranteed by the stale is no
two types of jural relations, namely, the claim-duty promise of security at all. And even if the action has
relation and the power-Uability relation. But there is not prescribed and the facts of ownership proved in
need to make allowance for exemptions. The privilege- court, the decision of the court is not identifiable with
tnability relation and the immunity-disability relation
take care of this need. An example is the exemption
from responsibility for what could be a breach of legal 272LuNosTEDT. V., LEGAL T111NK1NG REv1SEo, 80. AJmquist &
duty but for the existence of a legal privilege. The serous, Wiksell, Stockholm.
2731-IAGEHS'll«>M, A. INQUIHJ ES INTO ni~: N1mmE m· l.Aw AND Mrnw.s,
271Article 37, Civil Ccxle of the· Philippines. 318. Almquist & Wiksell. Stockholm.
422 LEGAL PHILOSOPHY LEGAL REALIST PERSPECTNE 423

the owner's "light" over a thing. The reason, according Thus. for the Scandinavian legal realists, the
to Hagerstrom, is that in the evaluative process the conventional concepts of "light" and "obligation" are
court expresses only the idea of the "light" but not the verbal magic. 277
existence of the "light."
Scaridinavian legal realism emphasizes the need
Second, the guarantee "refers only to the legally to explain jural relations in some way other than the
Iisk-free possibilities to the owner of acting at will as usual reasons. The reason, for example, given by the
to the thing owned or under possession."274 As Vilhelm positivist jurlsprudents to explain the existence of jural
Lundstedt explains it, this positional advantage of the relations is based on commands, that is to say legal
owner is nothing but a consequence of the guarantee rules. In the case of ownership, the command prohibits
by the state of the owner's possession for it is not the interference with the owner's possession of a thing
"light" itself.275 In other words, the guarantee of legal under pain of certain sanctions. Scandinavian legal
protection is not absolute but conditional. The legal realists point out that this is word-magic for there can
protection guaranteed by the state "will lend the owner be lights and obligations even without legal rules and
of the thing no assistance to see that his possession sanctions. If a person, for example, lends a sum of
thereof is kept inviolate or unimpaired. "276 By this, money to another person which is due and demandable
Lundstedt means that the court will intervene only when on a day certain, the lender acquires a claim on that
the owner or possessor of the thing is disposessed there- day and the debtor falls under a duty to pay. regard-
of, or when damage is done to the thing. less of the legal command and the acts of the parties
involved. For the Scandinavian legal realists. it is not
With regard to the concept of "obligation" the cri- the legal rule that prescribes the "light" or the "ob-
tique follows the same line of inquiry. The attempt to ligation." This is crucial from the psychological point
objectivize or identify the "obligation" with the sanction of view for the fact remains that the command refers
provided in the legal rule in case the obligor fails to only to the "light" or the "obligation."
comply with her or his prestation to do or to forbear
something is unrealistic. For the Scandinavian legal The social utilitarians, on the other hand, explain
realists, the existence of the "obligation" is not based the existence ofjural relations by objectivizing the "light"
on the application of the threatened sanction. It is as the kernel and the legal rule as the protective shell.
obvious that there are persons under some kind of Vilhelm Lundstedt, in particular, criticizes this
obligation faced with the threat of sanction and yet have objectivization as inherently weak. He states that once
elected to bear the sanction. the protective shell is broken, in some such ways
mentioned above, then the kernel would be no different
from a thiefs relation to the goods he has stolen. To
274Lundstedt. V., The Relation Between Law and Equity, 25
Tulane Law Review, 59, 61.
2751dem 277LuNDSTEITT, V., LEGAL Tu1NKING &"VISED, 84. Almquist & Wiksell,
2761dem Stockholm.
424 LEGAL PHII..OSOPHY LEGAL REALIST PERSPECTIVE 425

put the matter differently, there is really no protection natural obligations are more compelling than the civil
to keep the "right" inviolate. Once the protective shell obligations, yet it is the latter that enjoys the recognition
is broken, then the kernel is exposed and withers and and protection of the law. . The Code Commission,
the "right" loses its substance and becomes an empty however, admits the role of psychological realism in this
word indeed.278 situation. According to the Code Commission, a person
"performing or paying [the natural obligations men-
Thus, for the Scandinavian legal realists, jural tioned in Articles 1424 to 1430, except Article 1427)
relations must be analyed on the basis of psychological feels that in good conscience he should comply with
realism. In the case of "right" and its correlative "ob- his undertaking. "282
ligation," their reality must. respectively, be based on
the feeling of ascertaining a position of advantage and
the feeling of complying with the prestation consti-
tuting the undertaking.279 The reality then in jural
relations is what Karl Olivecrona calls "the psychological
connection" between rights. namely, authorities (claims
and powers) and exemptions (privileges and immunities)
and their correlative obligations, namely, responsibilities
(duties and liabilities) and debilities (inabilities and
disabilities). 280

The .critique of Scandinavian legal realism calls for


a re-orientation of the concept of jural relations along
the observable lines of psychological realism. One, for
example, would be the removal of the distinction drawn
in Article 1423 of the Civil Code of the Philippines
between civil and natural obligations. In the so-called
natural obligations, the legal protection was deliber-
ately withdrawn on grounds which have nothing to do
with their correlative rights, a very unpsychological
situation indeed.281 One would think that the

278LuND51'EUI', V., LEGAL Tu1NK1NG REvisEo, 80-82. Almquist &


Wiksell Stockholm.
279ScAN01NAVIAN Sruo1ES IN U.w, 147. Almquist & Wlksell.
Stockholm.
280Jbid.. 147. 282Memorandum of the Code Commission. 20 Lawyers Journal
281 LlJNDSTED, V., op. cit., 85. 460. Emphasis supplied.
CHAPTER VII POLICY ScIENCE PERSPECTIVE 427

B. Particular Aspect
THE POLICY SCIENCE ( 1) Immediate Necessities
PERSPECTIVE (2) Immediate Comforts
59. The Social Value "Safety"
52. The Yale Approach A Public Protection
B. Public Health
53. Policy Science Jurisprudence C. Social Security
A Reaction to Apathy Towards Social Values D. Peace and Order
B. Movement Away from Ontological
Jurisprudence 60. The Social Value "Liberty"
C. Emphasis on Human Rights A Relative Nature
D. Movement for the Universal Recognition of B. Purposive Affirmation
Social Values C. Forms
D. Tension or Problem Area
54. The Policy Process and Problems About Values E. Constituent Parts
55. The Social Value ..Power" (1) Personal Liberty
A Forms of Authority and Facts of Control (2) Religious Liberty
B. Aspects and Referents (3) Civil Liberty
(4) Political Liberty
56. The Social Value ..Knowledge" (5) Economic Liberty
A Purposive Forms
(6) National Liberty
(1) General Aspect
F. Paradoxes of Effective Liberty
(2) Particular Aspect
B. Tendential Functions 61. The Social Value "Equality"
A Negative Aspect
57. The Social Value ..Respect"
(1) Jural Inequality
A Regard for Life and Limb
(2) Invalid View of Equality
B. Regard for Human Personality
B. Positive Aspect
(1) Positive Phase
C. Constituent Parts
(2) Negative Phase (I) Equality and Balance Before the Law
58. The Social Value ..Income" (a) Simple Type
A General Aspect (b) Distributive Type
(I) Freedom from Want (2) Equality and Balance of Opportunity
(2) Conservation of Natural Resources (3) Equality and Balance of Rights and
Freedoms
(4) Equality and Balance of Political Value
428 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 429

62. The Overarching Social Value global, regional and national levels of legal orders.2
The problem addressed by the policy science school
63. Concept of Law of jurisprudence is the same age-old issue of war and
64. Importance of the Policy Science Concept peace. turmoil and security. Heraclitus (540-476 B.C.)
65. End in View
of Ephesus aptly stated some 2,500 years ago that
"the major problem of human society is to combine
52. THE YALE APPROACH that degree of liberty without which liberty becomes
license." In Calalang v. Williams, 3 the Supreme Court
The policy oriented approach in jurisprudence of the Philippines viewed the problem in the context
was launched at Yale University by Professor Harold of Heraclitus. The Court stated that "liberty is a
D. Lasswell (1902-1974) and Professor Myres S. blessing without which life is a misery; but liberty
McDougal (1906-) when the nations of the world were should not be made to prevail over authority because
involved in a bitter second world war. I then society will fall into anarchy and neither should
authority be made to prevail over liberty because
Unlike the theories of law heretofore considered, then the individual will fall into slavery."
the jurisprudence of policy science is aimed at the
The scholars belonging to the policy science
l Lasswell and McDougal enunciated the general concept of school of jurisprudence advance the view that the
this juristic school in their seminal study entitled Legal Education direct and alternative solutions to the problem of
and Public Pol.icy: Professional Training in the Public Interest. 52
Yale Law Journal, 203-295. For further d evelopment and appll-
easing global, regional and national tensions which
caUon: Lasswell, H .. The Interrrelations of World Organization and affects human relationships must move away from the
Society, 55 Yale La.w Journal, 889; McDougal, M., The Law School value-free approach of legal positivism. They also feel
of the Future: From Legal Realism to.Policy Science in the World strongly that legal realism is unequal to the vast
Community, 56 Yale Law Journal, 134 5; McDougal, M. and changes occurring in the world today which threaten
Leighton, J., The Rights of M a n in the World Community: Consti-
tutional lllustons uersus Rational Action, 59 Yale Law Journal, the dislocation of social values. It is the view of this
60; McDougal, M.• The Role of Law in World Politics, 20 Missi- juristic school that the application of social values in
ssippi Law Journal, 253; McDougal, M.. The Comparative Study the global. regional and national levels of public orders
of Law for Policy Purpose: Value Clarification as an Ins trument of cannot be ignored.
Democratic World Orde r, 61 Ya le Law Journal. 917; LA.sswEIL, H .
AND McDoucAL M.. TI-tE JURISPRUDENCE OF A FREE Soc1ETY; Sruo1ES IN
U..w, Sc1ENCE AND PouCY, Yale Univers ity Press, New Haven: Bebr, What gives credence to the policy science app-
W ., Intemattonal Protection of Human Rights and Freedoms, 29 roach to the problem of the nature of the law is its
Philippine Law Journal, 311 -34 3; McDouga l, M. and Feliciano, F.,
International Coercion and World Public Order: The General Prin-
ciples ofthe Law ofWar, 67 Ya le Law Journal, 771 -845; McDougal, 2McDouga l, M. and Lasswell, H., The Identification and
M. and Feliciano, F., Legal Regulation of Re sort to International Appraisal of Diuerse Systems of Public Order. 53 In ThE S1RATEGY
Coercion. AggressiorJ, and Self-Defe nse in Policy Pe rspective , 68 Ya le OF WoRLO ORDER, Vol. II, Falk, R. and Mendlovltz, S., Editors. World
.Law Journal, 1057; Lasswe ll, H . and McDougal, M ., Crite ria for Law Fund, New York.
a Theory A~ut Law, 44 Southern Ca lifornia Law Revie w, 362. 370 Phil. 726.
430 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 431

relevance to the predicament in which the world finds free societies: 1) the fission of the atomic nucleus and
itself. And the plight is not merely a conjecture but proliferation of atomic weapons, 2) the shift of the
"an affirmation that we simply cannot afford to have political and geophysical focus of the world towards
war...4 This concern explains the call for a fresh pers- Asia and the East. and 3) the inescapable connection
pective of the law and its role in the realization of the between national, regional and global problems and
human quest for peace, order and security. 5 the equally unavoidable fact that these problems
have taken the character of an ideological struggle
Filmer S.C. Northrop (1883-1969), philosopher between socialism and democracy. 6 Two other factors
and teacher at Yale University, advance several factors should be mentioned, namely, the general abuse or
to emphasize the urgency of a new jurisprudence for disregard of human rights and freedoms, and the need
for peaceful procedures of competitions without com-
promising basic social values. All these factors lend
stark reality to the proposition that humankind has
4REusc1·1LEtN, J., JumsPHUDENCE- IT's .AMEmCAN PROPHE1S, 349. to put in order its relationships well or face destruct-
Bobbs-Merrill Company. Indianapolis.
51n an article published in 17 Lawyers Journal. 1 (1952) ion.
entitled On the Need for the Study of the Natw-e and Elements of
the Law and Its Essential Role in the Community (a portion of which Historian Arnold Toynbee explains the paradox of
has been revised a little for this foootnote), I stated in connection the struggle between socialism and democracy. Elab-
with the matter given in the text the following:
There seems to be two vital forces that can clear up the
orating on this in his monumental opus, 7 Toynbee
tensions existing in the world today ... the forces of religion and
the law. . . . It is a rather sad commentary to make that human-
kind seems to h~ve forsaken the law as an instrument of social a definite share in the solution of the problem of war and peace.
control in its attempt to seek peac~. security and happiness. . . . All these do not mean that the force of religion Is not enough.
Public persons have declared that the solution of the problem of The point Is that religion Is not practised by enough people . . .
war and peace Is a spiritual one. This Is what General Douglas There has been englect of the potentialities of the la w as a means
MacArthur said on the occasion that marked the end of fighting to an end. The desire and drive of legal educaiton to emphasize
in World War II. Other persons In practically all walks of life have the bread and butter courses have had a great deal to do with
declared the same thing. Of course, there is nothing the matter this dangerous tendency. This Is precisely the reason for the
with this. But the fact is that even in countries where religion Jurisprudential position taken by the policy science school of
Is still a force. not all policy planners. policy makers and respons- Jurisprudence. . . . The future leaders should be trained early
ible government functionaries are familiar with spiritual precepts on In their careers In the reality that the Jaw Is a great deal more
and examples. The situation Is obvious In countries where than rules, symbols, or common sense only. and that It has a
religion has been disregarded or wiped out entirely. Thus, the definite role and function In the national, regional and global levels
goal of universal peace and security seems to be attainable more of legal orders.
6 Northrop. F.S.C .. Jw-tsprudence tn the Law School Currtcu-
through a cognition of the law . . . as a means of solving the
world-wide problem of the need for generosity of spirit, the need lum, 1 Journal of Legal Education. 482. A synthesis of Ideologies
for raising the level of world Ideas, and the desire for lasting as a basis of world understanding Is found In ThE MEETING oF EASr
AND W EST:. Macmillan and Company. New York.
peace and security. The point is that the institution of education, 7TOYNBEE, A.. A SruoY OF HrsroRY. Oxford University Press,
particularly the legal one. has not been equal ... to the opportunity
of training the future leaders In the knowledge that the law has London.
432 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTrvE 433
keenly observed that after the means of improving the ively to the vital needs of present-day life in Ma worlq
conditions of human existence by the technology of of cumulative crises and increasing violence. "9 The
Western civilization the West itself failed to do any- realization of the policy oriented approach to the study
thing substantial in sharing equitably with the Third of the nature and function of law is hindered by the
World the blessings of social and economic justice. failure to relate social values to legal education. To
According to Toynbee's interpretation of history, it was some extent the apathy towards social values ex-
this great failure of democratic civilization that pro- plains the tendency of governments to view the rights
vided socialism with the opportunity to use the same of human beings as hindrances to the exercise of
democratic concept of social and economic justice to governmental powers. This indifference toward social
appeal to all types of persons everywhere in its quest values also accounts for the big and small problems
to discredit democracy. that occur in the relationships of individuals to indi-
viduals and individuals to the government.IO
53. POLICY SCIENCE JURISPRUDENCE
B. MOVEMENT AWAY FROM 0NOLOGICAL JURISPRUDENCE
In some such setting was the Yale approach
launched with a jurisprudence called "policy science." Policy science jurisprudence insists that the
value-free approach of legal positivism to the study of
By "policy" is meant a settled guideline. strategy the nature of the law is a dangerous view. The idea
or program adopted by the legal order. And the term that there are no moral principles that consciously
Mpolicy science" means the discipline concerned with precede the law suggests that there need not be any
the formation, clarification and realization of social moral criterion for its validity Since, after all, the
values. 8 legal positivists say that there is nothing immoral
that is legal.
Policy science jurispruden·ce is characterized by
several features. On the other hand, the concept of judicial legal
realsim that statutes. rules and ordinances are no
A. REACTION TO APATHY TOWARDS SocIAL VALUES more than sources of the law and that the law is what
the courts will do or likely do in fact stands on shaky
There is no question that universities are by their ground. It is destructive of the grand divisions of
very nature the traditional training grounds of policy governmental powers and functions.
planners, policy makers and government officials.
The emphasis, then. given to bread and butter courses
in the law schools. for example. cannot respond posit- 91n the Philippines, It was only after the end of World War
II that a course In Jurisprudence was Included In the law cur-
riculum. Indeed, In some law schools this course has even been
removed.
8 Pascual, C., Policy Function of the Law: Value Creation. lOMcDougal and Leighton. The Rights of Man in the World
Clarijlcatlon and Realization, 29 Philippine Law Journal. 421. Community: Constitutional Illusions Versus RationalAction, 59 Yale
Law Journal, l 08.
434 LEGAL P1-11LOSOPJ-IY POLICY ScIENCE PERSPECTIVE 435
For policy science jurisprudence, these ontologi- of despotism" towards the "symbols and practices of
cal concepts of the nature of law are of no help in the a free society. "13 Putting it differently. the jurispru-
reduction of national, regional and global tensions. dence of policy science emphasizes the rights to life,
Lasswell and McDougal cannot seem to everempha- liberty. equality, property. education, security, and the
size their critique that both judicial legal realism and free exercise of the mind.
legal positivism are "myopic concerns which fail to
focus upon newer and, n many instances. more ef- This emphasis highlights the fact that in many
fective forms of organizations and alternative methods places the efforts in behalf of human rights and free-
offormulating and implementing public policy." 11 Policy doms have been stilled. Even though it has been
science jurisprudence believes that these theories of stated before. it bears repeating that one of the factors
law are incapable of solving the needs and require- that underlie the policy oriented approach is its ab-
ments of present-day systems of public order. It has horrence for the constant abuse of huma n rights des -
become more so, now that the exercise of govern- pite their formal statements in state constitutions and
mental powers and functions has been creeping into discourses of govenrment officials and priva te indi-
once private areas. Indeed. it is notable that the viduals. Indeed. whenever there is a profound recession
"social and legal functions of control are developing in fundamental human rights the institutions con-
both in predictable and, more often than not, nected with anarchy and despotism have become
unforseeable fields or directions."12 Here. as it is in stronger and dominant.1 4 In this situation, free elec-
the traditional areas of governmental activity, alter- tions becomes mere "ceremonial plebiscites," freedom
native methods of formulating and implementing of expression yields to "discussions directed by a
policies are as important as principal solutions. To monopoly of government and party," political party
realize, therefore, the quest for peace and security, system gives way to "leaderliolatry," and consequently.
which humanity seeks for its own sake. the policy the state assumes the "socialization of all functions." 15
science school of jurisprudence posits the view that
something more than the positivist and realist D. MOVEMENT FOR THE UNIVERSAL
theories of law is necessary. REcoCNITION OF SocIAL v ALU ES
The policy science perspective views the law as an
c. EMPHASIS ON HUMAN RICI-ITS instrument for the achievement of the social values
The policy science approach is likewise a move- which is the professed thrust of the law. As stated
ment away from the "slogans. doctrines and structures

13Lasswell a nd McDougal. Legal Education and Public


11 Lasswell, H. and McDougal. M.. op cit., 205. Policy: Professional Training in the Public Interest, 52 Yale Law
l 2McDougal, M., The Law School of the Future: From Legal Journal. 207.
. I
~
Realism to Policy Science in the World Community, 56 Yale Law 14 Jbld., 207.
Journal, 1345.
15Jbld.. 207-208.
436 LEGAL PHILOSOPHY POLICY SctENCE PERSPECTIVE 437
previously, thejurtsprudence of policy science empha- where governments and their leaders operate openly
sizes the view that the law would be imperfect to the under the guidance of the basic social values.
extent that it ignores the social values. The policy
ortented approach ls thus an advocacy of social values. The policy science school of jurisprudence
underscores the need for the eventual identification
In this respect. the direction of the jurisprudence of basic social values in the legal orders of all societies.
of policy science is away from isolationism character- This would not only insure "peaceful competitive pro-
istic of national legal systems. But the effects of a · cedures" but also work towards a climate of coop-
country upon the rest of the world and vice versa is eration in a situation rendered complex by the factors
a top-level factor in the pursuit of solving national, mentioned earlier in this chapter. The real state.
regional and global problems. Thus. "how a state therefore, in the policy ortented approach, is one in
controls its people and its resources, how it organizes which the legal ordering expresses. embraces and
and manages its institutions of social and legal maintains the social values and is in harmony with
controls, how it formulates, operates and controls the good and happiness of all humankind.17
political parties. pressure groups and private asso-
ciations. may affect vitally the practice of other states Thus, the policy science approach ls a jurispru-
on these matters and their willingness to provide dence of survival of humanity through the universal
adequate measures of cooperation."16 identification and recognition of the social values.
This ls a long and hard road to travel. It envisages,
Policy science jurisprudence, therefore, seeks the in the last analysis, the eradication of war itself
universal identification of the social values. that ls which. for some writers, is still one of the primary
to say their promotion, recognition and enjoyment by functions of a st:ate.18 But when the universal iden-
all persons everywhere. This program takes into ac- tification and recognition of the basic social values
count also the recognition of the matters that divide
or tend to divide nations or to create tensions among
them. Indeed. in the policy oriented perspective, there l 7Bebr. International Protection of Human Rights and Free-
ls no jusltication for a parochial ethos, no room for doms, 29 Philippine Law Journal, 31 I. 319.
18nie other Is the interest of the state In law and order.
selfish and narrow nationalism. nor reason for a big
In the latest application of policy science Juiisprudence on the
state (much less a small one) to be superior to the problem of ·community control ofinternatlonal coercion,· McDoug-
human community. The need is for a truly universal al and Feliciano submit the ·urgent need for rational Inquiry Into
climate of peaceful and transparent procedures the potentialities and limitations of our lnhertted prtnciples and
procedures for controlling violence between people and for the
Invention and establishments of more effective alternatives In
principles and procedures. This urge nt need - not far removed.
tf at all, from that of s imple survival - when considered In relation
16 McDougal, M.. The Comparative Study of Law for Policy to the rtslng demands of peoples a ll over the world, whatever the
Purposes: Value Clarijlcation as an Instrument of Democratic perspectives of their rules. for the securtty of all their values
World Order, 61 Yale Law J ournal, 917.
438 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 439

shall have been accomplished, then the interest of is value clarification. By this is meant the task of
the state in war will disappear. This is the same hard reassessing the worthfulness of human desires in
road that the social evil of slavery followed. There was light of their meaning and importance to society in the
even a time when slavery was thought not to violate face of the changing experiences of the people. And
the freedom of the slaves. But that perception lost a human desire is important and meaningful when it
favor when people realized that slavery was thoroughly has intrinsic value. that is to say desired and trea-
incongruous with the God-given human personality. sured for its own sake.
John Wesley, for one, abhorred it as ..inconsistent
with any degree of natural justice, utterly inconsistent The third step in the policy process is the imple-
with mercy and incompatible with any claim to mentation of those desires which have become social
godliness."19 values. This objective involves two aspects. As stated
earlier. the implementation must produce consistent.
54. THE POLICY PROCESS AND PROBLEMS compatible and principled results. Of course. there
ABOUT VALUES is need to develop programs and strategies to achieve
The first step in the policy process is value crea- this objective. Then, comes the preparation of options
tion. One hard fact involved in this process is that or alternatives especially when there is variance be-
the legal order is not in a position to recognize all tween strategies and programs to achieve the social
human desires at the same time. Indeed, some may values.
not even gain legal recognition. Thus, the problems
In view of the salient features of policy science
of preference and basis of choice arise. In tum, these
jurisprudence and the fact that "any other categori-
problems raise the issue of whether there are some
zation which offers operational indices in terms of the
human desires that are always and everywhere better
than others. concrete demands of individual human beings will
serve equally as well,"20 the basic social values are:
1) power, 2) knowledge. 3) respect. 4) income. 5) safety
But their formation and articulation by and
and health, 6) liberty. and 7) equality. These social
through the structures and instruments of authority
valu es .. embrace the whole of our present-day demo-
may not agree or correspond with each other. The
cratic preferences for a peaceful world corresponding
policy process. then, moves to the second step. which
as they do to the actual desires of the people." It is
noteworthy that the policy science school of juris-
prudence considers these social values as instru-
by peaceful procedures free from coercion and viole nce, confront
students of international law with unparalleled cha llenge and
mental in the creation. clarification and implementa-
opportunity." International Coercion and World Public Order: The tion of other human desires.
General Principles of the Law of War, 67 Yale Law Journal, 771 -
772.
19rHE WoRKSoFJoHNWESLEY, xi, 59. 1bomasJackson, Editor.
20 McDougal. M., Law as a Process of Decis ion: A Policy
Z.Ondervan Publishing Co., Grand Rapids, Michigan. Oriented Approach to Legal Study. l Natural Law Forum, 53.
440 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 441

55. THE SOCIAL VALUE .. POWER" But behind these forms of authority are the
"facts of control." Policy science jurisprudence points
As a social value, "power" is more than just the that the facts of control must be true not only in
authority exercised by government and public name, that is to say in the formal principles laid down
officials. It does not relate either to the narrower inter- in the constitution but in actuality as well. Chief
ests and prejudices of some elitist groups in society.21 among these are: 1) making and changing the fun-
If "power" meant no more than these, then, it would damental law of the land. 2) making and changing
not have any intrinsic value and plainly would not be laws and decisions, 3) holding periodic free elections
desirable. by means of the secret ballot and not by block voting.
4) providing real access to political offices, 5) freedom
For policy science jurisprudence. the social value to criticize public personalities and pubilc acts in a
"power" must be considered in terms offorms of author- manner consistent with truth and decency, 6) holding
ity and facts of social control. 22 all government officials accountable and responsible
for misconduct in office, and 7) freedom to express.
A FORMS OF AtrrHORITY AND FACTS OF CONTROL read, formulate, and publish both orthodox or popular
The term "forms of authority" refers to the distri- and unorthodox or unpopular ideas and opinions.
bution of the exercise of the social value "power" in
a politically organized society. B. AsPECTS AND REFERENTS

As a social value, "power" has a two-fold meaning.


First is the government. whether national or Each is indispensable to the other for without one the
local. Then comes the pressure organizations in the other would be meaningless.
community, whether political parties, religious
groups. professional associations, business enter- The first aspect refers to the capacity to secure
prises, civic or cultural groups, labor unions. They and maintain fundamental human rights. The
are all imbued with the primary objective of influenc- second aspect deals with the competence to make
ing the will of the people. And it makes a big differ- decisions without any undue interference from any
ence when there is free competition among and within group or form of authority.
these organizations. The presence o( this factor
provides the balance necessary to equalize the com- The first aspect emphasizes the struggle to secure
petition for the people's support. the recognition of the primal human rights. The fact
that these basic rights exist is not a sufficient char-
21 Poust, J., The Concept of Norm: Towards a Better acterization ofa democratic polity. It cannot be gainsaid
Understanding of Content. Authority and Constitutional Choice, that these rights may also exist under the reign of a
53 Temple Law Quarterly. 226. benevolent despot. What completes the characteriza-
22 Lasswell, H., and McDougal, M.. Legal Education and Public
.. Policy: Professional Training tn the Publ ic Interest, 52 Yale Law
tion of a democratic legal order is the second conno-
Journal, 221. tation of this social value. Its dilution even when
442 LECAL PHILOSOPHY POLICY ScrENCE PERSPECTIVE 443

gradual is an indicium lhal inlolerance has sel upon plained that human beings take delight in it for its
lhe communily. own sake. As rational beings. they naturally seek
knowledge or enlightenment. Human beings have a
The second aspecl recognizes the reality lhat al right. then, to the normal development of their mental
the presenl time lhere are private groups which, on faculties.
lhe basis of their particular types of patriotism or
interest. have a great deal lo do in the formation or This is . echoed in lhe jurisprudence of policy
defeat of national policies and objectives. An example science in the proposition that "one of the basic
illustrates this point. In some societies lhere may be manifestations of deference lo human beings is to
a consensus for the establishment of responsible give full weight to the fact that they have minds. "2 4
parenthood program in lhe face of unremitting popu- Ignorance, then. is nothing more than lack of enlight-
lation and economic pressures. Bu( lhere may be a enment. It prevails when the free use and enjoyment
determined opposition lo it, making responsible par- of knowledge are not preserved. In a world of rapid
enlhood programs virtually impossible. The national technological development. a community cannot
economy and the quality of life can never catch up with simply exist half-enlightened and half-ignorant. In
a galloping popula lion rise and an ever increasing size such a situation general progress would suffer and
of the unemployed labor force. political democracy would have little chance of
survival.
These aspects of the social value "power" high-
light lhe inalienable prerogative of the people over The possibilities of the development of mental
lhese forms of authority. When lhe term "democracy" and physical skills are in themselves varied and wide.
was minted by Herodutus from lhe words demos and However, the means for this purpose have been
kraLein his contextual idea w.as a legal ordering of limited. The private sector provides part of the
)' society in which the people themselves preserved means for development of mental and physical skills
power. It is inalienable because no one can sacrifice. within the framework provided by the slate. Even so.
even if it were in favor of the government. an arbit- provisions for education must go farther and the
rary aulhority over lhe people inasmuch as it would state must assume the responsibility of providing
not only be unnatural but also undesirable. formal and continuing means for intellectual develop-
ment. It cannot be gainsaid that the people are in a
56. THE SOCIAL VALUE "KNOWLEDGE .. much better position to contribute to the general
progress when opportunities for formal and non-
Very long ago. Aristotle observed that "all men by formal education are made available to them.
nature desire to have knowledge."23 Aristotle ex-

241.,asswell and McDougal. Legal Education and Public Policy:


23Ai{JsTcrn.J<:. M~;rAP11Ys1cs. Book I. l . Creed a nd Wardman Professional n-alning in the Public Interest, 52 Yale Law Journal.
lranslallon. New American Library, New York. 225.
444 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTNE 445

A PURPOSNE FORMS First, it signifies the emancipation of the mind


through education and instruction at all levels accord-
As a social value, "knowledge" has two basic
purposes. One is to dispel misunderstanding. The ing to talent and ambition.
other is to eradicate ignorance. These purposive
aspects of "knowledge" should go hand in hand, or In this sense, the state has the right to regulate.
they do not go at all. They are, respectively. the general supervise and aid in the education of children and
adult for civic duties. responsibilities of citizenship,
and the particular aspects of this social value.
character education. and the moral needs of the
human personality. This emphasis is quite neces-
(1) General Aspect
sary because hand in hand with the problem of the
In general, "knowledge" means widespread un- removal or substantial reduction of illiteracy is the
derstanding among peoples of different cultures and problem of training and educating the literates
backgrounds. In this aspect. "knowledge" involves themselves to react intelligently in behalf of good
freedom in the pursuit of truth wherever it may end human relationship. Today. there seems to be so
or tend. Truth is not only instrumental in the pro- much illiteracy in human relationship notwith-
motion of widespread understanding but also indis- standing the fact that ordinary illiteracy has been
pensable to the preservation of the natural and primal reduced greatly. Sociologists agree that social
rights ofhuman beings. Falsehood, disinformation and imbecility apparently ranks high in most literate
thought control used as means of persuasion and countries today.
dissuasion would be injurious and fatal to both indi-
vidual and national development. History is replete The other essence of the particular meaning of
with illustrations of societies or regimes which have this social value is the cognition and appreciation of
faded away because of thought control, a favorite how democratic ways and processes work, and
means of perpetuating misunderstanding. having found how they work, how they can be con-
tinued to work better. It cannot be gainsaid that
This aspect of the social value "knowledge" leads freedom and knowledge are related values. The one
to one very important point, that is the maintenance is the condition of the other. The members of society
of the right to think and the right to private judg- cannot simply remain loyal to democratic ideas and
ment. It is only when persons are allowed or given processes without the cognition that these are
every opportu11ity to think and decide for themselves capable of making them free25 in such a way as to
that there is freedom of thought and freedom from make these ideas and processes available for the
thought control. development of the general welfare or the good of
the collective body. Thus. controlled education. that
(2) Particular Aspect
. In the particular sense. "knowledge" as a social
value has two distinct meanings. 25/bid, 225-226.
446 LEGAL PHILOSOPHY POLICY Sc:IENCE PERSPECTIVE 447
is to say regimented training or deliberate restriction including the recognition of the value and worth of the
of certain bodies of knowledge which are not false or individual in society.
erroneous, has no place in a truly democratic polity.
In the area of political progress are the follow-
B. TENDENTIAL FUNCTIONS ing: 1) provisions for clarification and enlargement
of social values in the legal order. 2) dissemination of
When the social value "knowledge" is translated
free and accurate information and the prevention of
in the context of the relevant public interests, it refers
acts and practices promotive of or tending to promote
to the maintenance of the general progress. that is to
say cultural progress, moral progress, political progress. falsehood. disinformation and deceit as means of
and economic progress. pursuasion and dissuasion. and 3) maintenance of
integrity and ethical standards in public affairs as
well as devotion to public trust and recognition of the
There are at least three tendential functions of
right to freely express views on public matters and
this social value in each of the specific areas of prog-
ress mentioned above. affairs.

In the area of economic progress are the follow-


In the area of cultural progress are the following:
ing: 1) comprehension of the means to control the
1) promotion of education and learning, encourage-
forces of nature for the satisfaction of human needs
ment of inventions and new ideas to provide the means
through science and betterment of the machinery of
of satisfying human needs and wants, 2) pursuit of
economic organization and administration, 2) recog-
pure or basic as well as applied or immediate re-
nition of the role of established standards of fair
searches and studies. inquiry into all kinds of sub-
dealing in the stability, certainty and security of
jects or ideas and to make scholarly expressions and
transactions. and 3) recognition of the unwholesome
observations relating to the subject matter, and 3)
effects of excessive taxes upon normal profits. business
preservation and sharing of certain bodies of learning
growth or ingenuity, and good management.
which are not false or erroneous and the promotion
and maintenance of archives and libraries containing 57. THE SOCIAL VALUE .. RESPECT"
the widest diversity of views and expressions possible.
As a social value. "respect" means regard for life
In the area of moral progress are the following: and esteem for the dignity and worth of human per-
1) development of higher morality. that is to say not sonality. This value should be enjoyed by the mem-
simply conformity to laws and customs but the achieve- bers of society not because they belong to a particular
ment of larger and higher moral values and putting religious persuasion, or to a particular class, or hold
them into practice, 2) provisions for opportunity and a particular status or rank. but because they are
means to read. analyze and reassess beliefs. ideas and simply human beings. The philosophy of policy
.. institutions. and 3) to criticize and restate custom in science on the social value "respect" is accurately
light of rational principle of social (ethical) justice stated in these words: "Beyond the voting and arguing
448 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 449

relations involved in the making of policy lie many other the grounds just mentioned is unfair.
zones of human contact in which the dignity of the
individual is involved. Human beings are respected, In this phase. "respect" works as well in the area
in the present sense of the word, when they are taken of interpersonal and intergroup relationships. The
into consideration by all with whom they come in indicia of sex, age. birth, ethnic group, economic class,
contact in spheres of life beyond the making of rank, position, religion. political affiliation, fraternal
collective decisions. "26 connection, business, profession, income, residence,
race. educational attairunent, and honors are inevita-
A REGARD FOR LIFE AND LIMB ble because of the very nature of the social make-up.
By this is meant that they have a great deal to do with
In particular, the concern for life and limb means
.. the free and unharmed possession of the complete
the amount or degree of respect a person may bestow
on or expect from another. This situation is especially
body. As such, this concern carries with it the ex-
true in a "small, tightly-organized and tradition-bound
emption from attack, whether homicidal or simple neighborhood (which) may hedge the zone of indivi-
bodily harm. the immunity from servitude and from dual expression within narrow limits. "28
cruel and unusual punishment. and the privilege of
unhindered locomotion.
A rather vigorous statement of this aspect ap-
peared in the case of Caunca v. Salazar. 29 Speaking
B. REGARD FOR HUMAN PERSONALITY
through Justice Gregorio Perfecto, the Supreme
Insofar as dignity and worth of human person- ; Court of the Philippines warned that the "fortunes of
ality is concerned, "respect" may take either a positive business cannot be controlled by controlling a fun-
or negative form. damental human freedom. Human dignity is not a
merchandize appropriate for commercial barter or
(1) Positive Phase business bargains. Fundamental freedoms are
beyond the province of commerce or any other
The esteem for human personality is in its
business enterprise .. . . Human dignity and human
positive phase when there is freedom from any kind
freedoms are essentially spiritual, notwithstanding
of discrimination on grounds of race. sex. language, their material manifestation in the external world."
religion, political persuasion, or property status. In
other words, there is equal opportunity for every Some of the acts and practices which are in
individual to secure expression for his or her person- derogation of the social value "respect." in the sense
ality, talent. and ability, regardless of grounds irrel- just mentioned, are: 1) prying into the privacy of
evant to capacity. 27 Discrimination solely on any of another's residence. 2) meddling wilh or disturbing the

.. 2 6 Ibid.. 223. 281dem.


2 71dem. 29c .R. No. L -2690.
450 LEGAL. PHILOSOPHY POLICY Sc1~::NCE PERSPECT[VE 451

privale life or family relations of another. 3) intriguing of crisis may be given. A subversive organization or
to cause another lo be alienaled from his friends. and party may be outlawed or dissolved. Elections may
4) vexing or humiliating another on accounl of his be deferred. Limited censorship may be imposed.
religious beliefs. lowly slalion in life. place of birth. Police surveillance may be instiluted. Bul an illus-
physical defect. or other personal condition. 30 lralion of disrespect which is invalid even in times of
national crisis is lhe compulsory expulsion of all
Thus. such policy functions which have lo do American citizens of Japanese anceslry. regardless of
wilh the prolection and lraining of orphans. depen- loyally. from the Pacific Coast area of the Uniled States
dents and defeclives; the mainlenance of a free school soon afler the bombing of Pearl Harbor on December
syslem al least al the primary and secondary levels, 7, 1941. The round-up and internment program un-
the outlawing of war and other means designed to der Executive Order No. 9066 was carried out by Lieut.
encourage acts and praclices intended lo deslroy. in General John L. DeWill, Commanding General of the
whole or in part. minority groups should receive U.S. West Coast Command. General Dewitt did not
recognition. encouragemenl and supporl. conceal his hatred toward Americans of Japanese an-
cestry. At a congressional hearing. he said. "A Jap
(2) Negative Phase
is a Jap. There is no such lhing as a loyal Japanese.
They belong to an enemy." The Report of the Presi-
The concern for the dignily and worlh of human dent's Committee on Civil Rights noted that about
personality is in its negative phase when individual 120,000 men. women. and children were ordered
inilialive. choice and delermination are reslricled or away from the Pacific Coast and delained in relocation
inlerfered wilh. 31 In this form. the degree of respecl centers farther into the interior without any sorl of
for human personalily and dignily may vary depend- hearing. at a time when the courts were functioning. 32
ing upon the parlicular siluation or condition in which In the case of Korematsu v. United States. 33 the
a given communily may find ilself. Bul in times of Courl held that restrictions on individual rights. inilia-
national peril. emergency. or dislress. individual Uve. choice and determination should never be opp-
righls. inilialive and delerminalion may be resl- ressive if it is to be valid. It characterized the wartime
ricled. However. in policy science jurisprudence. the relocation program as a resort to racism in a ll its
reslriclions during crilical periods does nol mean
oblileralion of lhe social value "respecl." In another
way of pulling il. reslriclions musl be based on slricl 3 2 see Report, 30. U.S. Government P1inting Office. Wash-
consideralion and judgmenl of lhe social interesls. ington D.C. Several cases reached the Supreme Court of the
United States in connection with this wartime relocation program,
Some obvious instances of valid restriclion in limes
viz .. Hirabayashi v. United Slates. 320 U.S. 81. 63 S.Ct. 1375. 87
L.Ed. 1774; Yasui v. United States. 320 U.S. 115, 63 S.Ct. 1392,
97 L.Ed. 1793; Kore malsu v. United Stales. 323 U.S. 214. 65 S.Ct.
30Arllcle 26. Civil Code of the Philippines. 193. 89 L.Ed. 194; Ex Parle Milsuyc Endo. 323 U.S. 293, 65 S.Ct.
.. 31Lasswell and McDougal. Legal Education and Public Policy :
Professional n ·ainlng In the Public Interest. 52 Yal e Law Journal.
208. 89 L.Ed. 243.
33323 U.S. 214 . 6 5 S.Ct. 193. 89 L.Ed. 194 .
223.
452 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTfVE 453
unsavory setting, depriving all those corning wifuin A. GENERAL AsPECT
the scope of the military order of the Commanding
General of the U.S. West Coast Command of the equal In its general form, this social value denotes free-
protection of the law. Forty-six years later. in 1988, dom from want and the conservation of the natural
the U.S. Congress voted to pay compensation of$20,000 resources.
to each relocation survivor.
Translated in the context of the public interest
involved, it means the economic betterment of the
But restrictions should not outlive their useful-
people. adequate provisions for a high employment
ness even in times of crisis. As much and as soon
level. freedom to unionize and bargain collectively,
as possible, the normal area and intensity of 'respect'
efficient methods of production and wise consumpt-
for human rights, initiative, choice, and determin-
ion of goods and services. and raising of the plane of
ation should be restored. For instance, a grant of
living.
emergency powers to the Chief Executive should be
repealed after the end of actual fighting and not after
(1) Freedom from Want
the state of war has been legally termianted, e.g., upon
the ratification of a peace treaty, which may occur In fuis general form, there are certain trends
five, ten, or even twenty years after the last bullet which, at first glance, may appear as parts of a class-
had been fired. This would at least put an end to the conscious movement. In reality they are not. These
detrimental practice of government by executive tendencies strive mainly for a more equitable sharing
orders which cut across matters as sensitive as policy of surplus revenue or profit. Labor unionization and
functions. services, and social values. collective bargaining are examples of the positive steps
to realize freedom from want. A corollary is the free-
58. THE SOCIAL VALUE .. INCOME" dom to sell one's own goods and services in the best
market or the freedom to refuse to sell them should
The importance of this social value, which in-
the market not warrant it, except to be idle.
cludes savings. cannot be overemphasized. In the first
place, the implementation of fuis social value is a very
For the group of people for whom freedom from
serious problem confronting every society. especially
the developing ones. In the second place, it is involved want is a challenge, its realization takes the material
forms of higher wages, fewer hours of work, better
in the interest of society in the dignity and worth of
working conditions. and a fair measure of job security.
the individual. These two points highlight the fact
These are some of the means affording the people to
that insufficiency of income dulls a person's desire for
have an equitable share in the surplus revenue or
other values, including concern for democratic prin-
profit.
ciples.
(2) Conservation of Natural Resources
Under this connotation, adequate measures
454 LEGAL PHILOSOPHY POLICY Sc!ENCE PERSPECTIVE 455
should be provided in order to counteract or remove (2) Immediate Comforts
such forms of acts and practices promotive of waste
and squander of the natural resources of the commu- The improvement of the mode of living where the
nity. immediate comforts are considered is a valid human
desire, 34
There is a cogent reason for enlarging the social
value "income" to include the conservation of the natural This is the point where savings takes added sig-
resources. These are the wealth that provide the nificance. Without it the natural desire for the im-
community with the means of sustaining its economy mediate comforts cannot be met. In the case of Atok-
which. in tum. provide for the satisfaction of human Big Wedge Mining Co.. Inc. v. Atok-Big Wedge Mutual
wants. Besides. the natural resources of a country Bene.fit Association, 35 the Supreme Court of the Phil-
are not inexhaustible. ippines recognized the importance of savings as a part
of the social value "income". According to the Court,
There is another point involved in the general "the minimum amount actually needed by a laborer
and his family can by no means imply only the actual
aspect of the social value "income" that has a great
minimum. as some margin or leeway must be provided,
deal to do with economic development. It is related
over and above the minimum. to take care of con-
to capital and its use. In ordinary times. the area where
tingencies. such as increase of prices of commodities
capital can operate should be expanded but in times
and increase in wants. and to provide means for a
ofemergency or in critical periods the privilege ofcapital
desirable improvement in his mode of living."
to pursue stringent measures to ration itself should
also be recognized.
Thus. the term "minimum income" should mean
B. PARTICULAR AsPECT
provisions for the means to meet both the immediate
necessities and the immediate comforts.
In particular, the social value "income" embraces
the minimal substance of the immediate necessities 59. THE SOCIAL VALUE "SAFETY"
and comforts of life.
The social interest in the maintenance of the
general security would be a chimera unless the social
(1) Immediate Necessities
value "safety" is recognized and widely shared. There
Living or existing just above the bare level of is a natural desire to be safe from danger, injury and
subsistence where human needs for food, clothing and disease. It is only when the members of a community
shelter - his immediate necessities - alone are met
to enjoy a happy life is a social anachronism. There
34Lasswell and McDougal, Legal Education and Public Policy:
is no question that other needs to enjoy a happy life
Professional Training in the Public Interest. 52 Yale Law Journal,
have to be met and provided . for. 232.
35g2 Phil. 754.
456 LEGAL PHILOSOPHY POLICY Sc1ENCE PERSPECTIVE 457

feel safe and secure that they are peaceful and happy. efficient functioning of quarantine service to prevent
So closely related to the happiness of the people is this the outbreak of pestilential and debilitating diseases;
social value that the former cannot be without it. delineation of endemic zones as well as areas receptive
Indeed, the one is the condition of the other. to disease or disease-bearing insects carried in air
traffic: maintenance and purificaiton of water supply;
The social value "safety" represents or signifies development of general fitness; regulation of tenement
·public protection. public h ealth. social security. and and factory buildings.
peace and order.
C. Soc IAL SEc uRrIY

A. Punuc PROTECTION
The measures for social security should take into
This specific aspect of "safety" has a wide and account aid for the unemployed and fmancial assist-
varied range. from the simplest to the complex. ance for the aged. These may be in the nature of
provisions for unemployment benefits. fringe benefits.
The simple measures of public protection may and old-age pensions or annuities on a reasonable rate
take such forms as street lighting, widening and main- of contribution.
tenance of roads. installation of traffic signs, and the
like. The complex measures may take the form of D. PEACE AND ORDER

national constabulary forces. municipal police forces. The measures taken for peace and order are
measures for the protection of life and property from channeled in two directions. First. the eradication of
fire and other destructive phenomena. friction and conflict. Second, the promulgation of
specific rules with definite incentives and/ or sanc-
B. Punuc H EALTH tions for the purpose of certainty in the determin-
In the matter of public health. the important ation of the extent and limits of the conduct of every
thing is education in health and not physical educ- person in the community. In this way. everyone can
ation merely. The former involves attitudes and habits act and expect others to act within the limits of the
of hef\lthful living. rules laid down by the legal order.

The measures pursued in this regard are in the 60. THE SOCIAL VALUE .. LIBERTY"
direction of reduction of infant mortality; control of As a social value, "liberty" has undergone quite
pestilence such as cholera. smallpox. influenza. and a transforma lion.
dysentery: control of debilitating diseases like arterio-
sclerosis. cancer. tuberculosis, rheumatism. polio- At the time when the intellectual construct of
myeliUes. and leprosy; maintenance and support of "due process of law" was considered to m ean merely
hospitals. psychopatic asylums. medical and health the guaranty of the procedural rights of the indiv-
clinics. and puericulture centers; maintenance and idual. that is to say restricted in applica tion to pro-
458 LEGAL PHILOSOPHY POLICY Scl ENCE PERSPECTIVE 459

cedure in the courts. 36 "liberty" was understood in a A. RELATIVE NATURE

physical context to mean security from restraints. In As a social value, "liberty" is not unrestricted. As
this sense, it was understood to mean personal liberty mentioned above. it does not mean the absence of all
or freedom of the body form external physical com- bonds and restraints. 39 In the case of Rubi v. Provincial
pulsion. 37 Board,40 it was held that "liberty" cannot be "dwarfed
into mere freedom from physical restraint of the person
When the re-evaluation of the due process of law of the citizen, but is deemd to embrace the right of
concept took place, "liberty" was invested with a man to enjoy the faculties with which he has been
substantive significance. 38 It was taken as a positive endowed by his Creator subject only to such restraints
qualification on governmental excesses in the exercise as are necessary for the common welfare."
It of the power of taxation, the power of eminent domain,
and the police power. With this additional significance, This is so because the conditions that create and
"liberty" moved away from the essentially negative sustain it are the very limits or modifiers that keep
aspect towards the broader idea of individual activity it from degenerating into license. 4 1 License. then. is
qualified only by the condition that the equal liberty nothing but doing the very things that are prohibited
of others are not unnecessarily interfered with. from being done. Differently stated, it is the negation
of lawness. Thus. in a situation where license or law-
lessness prevails only those with ways and means of
helping themselves will feel total absence of restraints
361n Dartmouth College v. Woodward, 4 Wheaton (U.S. 518, or inhibitions. The rest of society would naturally be
4 L.Ed. 629) due process of law means "the general law which reduced to subjugation to the will of the few. Histori-
hears before It condemns, which proceeds upon inquiry and
renders judgments only after trial. The meaning Is that every cally, whatever is inadmirable in human existence is
citizen shall hold his life. liberty. property. a nd immunities under the handiwork of license.
the protection of the general rules which govern society. Every-
thing which may pass under the form of an enactment is not B. PURPOSIVE AFFI RMATION
therefore to be considered the law of the land.· In the case of
Den v. Hoboken Land and Improvement Company. 18 Howard The social value "liberty" is manifested in the
(U.S. 272. 15 L. Ed. 372) the Supreme Court of the United States ability of a person to do the things which are essential
stated that "the words due proces sof law· were undoubtedly
to realize his or her conscience. oportunities and
intended to convey the same meaning as the words ·by the law
of land' In the Magna Carta. Lord Coke In his commentary on interests. This needs the affirmation of society if it
these words says they mean due process of law. The constitution
which has been adopted by the several states before the federal
constitution. following the language of the great charter more
closely. generally contained the words, "but by the judgments of 39chicago B & Q RaUroad Company v. McGuire, 219 U.S. 549,
h is peers or the law of the land.· 565. 55 L.Ed. 328. 337, 31 S.Ct. 259; West C<XIst Hotel v. Parrish.
37SJNco V .. Pt-11urP1NE POLIT ICAL LAw. 76. Tenth Edition. 300 U.S. 379, 81 L. Ed. 703, 57 S.Ct. 578.
Community Publis hers. Inc.. Manila. 4039 Phil. 660.
38oavidson v. New Orleans. 96 U.S. 77. 24 L.Ed. 703. 41 Rubi v. Provincial B<XIrd, 39 Phil. 660.
460 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTfVE 461

is to serve as a weapon against oppression and tyranny. frequently at a very serious disadvantage when faced
Thus, "liberty" is placed in jeopardy whenever arbitrary with the authority and force of the government or
and nullifying restraints are imposed upon society by influential groups. There is a better way of handling
the government or by influential groups. When this or eradicating tensions between individual and gov-
happens, all other rights become meaningless. ernment and that is to strike a balance no matter how
delicate the equilibrium might be.
C. FORMS
However, it must be stated that while the govern-
The social value "liberty" may take on an active
ment can destroy social values when it decides to
or a passive mode.
disregard them, the government is nonetheless essen-
tial to their maintenance, augmentation. and even
In its active mode. "liberty" means legal authority.
preservation. As Chief Justice Charles Evans Hughes
•I which may either be a legal claim or a legal power.
of the United States Supreme Court puts it. the liberties
In its passive mode, it means legal exemption. which
"guaranteed by the constitution, imply the existence
may either be a legal immunity or a legal privilege. But
of an organized society maintaining public order with-
whether "liberty" is in the active or passive phase. it
out which liberty itself would be lost in the excesses
is an area of human endeavor into which the govern-
of unrestrained abuses. "42 In his message to Cong-
ment can neither encorach upon or permit undue
ress on July 4, 1861, Abraham Lincoln phrased the
intrusion from any group. It cannot be unduly re-
problem very well when he said: "Must government
stricted or limited since it is quite easy for the gov- of necessity be too strong for the liberties of its own
ernment or any other group to regard this and other people. or too weak too maintain its own existence?"43
social values as unnecessary interferences in the exercise Therefore. the balance to strive for is to consider the
of their respective functions and powers. government as an organ committed to the protection
of the social values. But when the government turns
D. TENSION OR PROIJLEM AREA
against the social values. it takes on the garb of statism
The social value "liberty". together with the social and then totalitarianism.
values "respect" and "equality". form the problem-area
in the legal ordering of society. They get involved in E. CoNsTirUENT PARTS
the relationships of the individual to the government. From the standpoint of human existence, this
Quite often conflicts arise between individual rights social value has certain constituent parts. namely.
and the claim of the government to national security.
Obviously. it is not always safe to let the latter survive
at the total expense of the former. Unrestricted or 42cax u. New Hampshire. 312 U .S. 569, 574, 85 L.Ed. 1052,
unreasonable interferences by the government or by 61 S.Ct. 762.
influential groups can destroy these social values. This 435 MESSAGES AND PAPERS OF 11-IE PRE.s10ENTS, 1113, 2 L .Ed. 2d
1204; Dayton u. Dulles, 357 U.S. 144, 78 S.Ct. 1127, 2 L.Ed. 2d
is especially the case for minority groups. They are 1221.
462 L~::CAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 463
personal liberty. religious liberty. civil liberty. political of travel. this too is an element of citizenship and a
liberty, economic liberty. and national liberty. They part of equality of opportunity. Among those included
are distinct. though coordinate. parts of the whole. in this particular aspect of personal liberty are the
privilege of self-defense and the immunity from arbit-
(1) Personal Liberty rary arrest.
The concept of personal liberty has moved a long
(2) Rellgious Liberty
way from the zero-point of s lavery. In such low state
of existence there is complete subjugation of personal Religious liberty grew out of the opposing cliams
freedom. of ecclesiastical and civil authorities for power and
loyalty of the people. The respective provinces and
At the present time. personal liberty embodies limits of church and state in this conflict of interests
certain aspects. have been aptly stated a long time ago: "Render unto
Caesar the things that are Caesar's and unto God the
First. is the freedom of a person in coming and things that are God's."46 One encouraging result is
going from one place to another. 44 Indeed. freedom that ever since Jesus Christ uttered this words both
of movement is an element of citizenship and a portion church and state have accepted the principles of
of equality of opportunity. But there is an identifiable religious tolerance and religious liberty.
paradox even in this improved condition or situation.
Despite the human achievement along this line and Religious intolerance is the establishment of a
the recognition given by some that it is even a natural state church or a state religion. Religious tolerance
right, 45 there is still a noticeable attempt to prevent means that the state should not enact laws endorsing
or deny the enjoyment of this right on unethical or or aiding one religion or another nor enact laws
illegal grounds, e.g., political nonconformity. Of supporting all religions in general. On the other hand,
course, the obvious exceptions are the prohibition of religious liberty is the free exercise of religious belief.
travelling to particular geographic places because of This means tha.t the state should not influence or
war or imminent danger thereof. actual national compel any person from joining or not joining a church
emergency, or legal restraints placed on persons. e.g.. or religion. nor free any person from professing belief
parole. bail. or unbelief in any church or religion. nor punish any
person for entertaining or professing religious belief.
The second aspect of personal liberty deals with nor levy taxes to support any religious institution or
the security of the body from injuries. Like the liberty activity. nor participate openly or secretly in lhe affairs
of any religious group.47
44Kent u. Dulles, 357 U.S. 116. 78 S. CL 1113. 2 L.Ed. 2d
1204; Dayton u. Dulles, 357 U.S. 144. 78 S. Ct. 1127. 2 L.Ed. 2d 46Mark 12:17.
1221. . 47 Everson u. Board of Education. 330 U.S. 1. 67 S. Ct. 504.
45&hactman u. Dulles. 225 F . 2d 938. 91 L.Ed. 711; McCollum v. Board of Education. 333 U.S. 203. 68
464 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 465
The sum of all these is that the state should a free society.49 But the guarantee of freedom of
remain clearly neutral not just among religions but conscience is for conscience sake only, that is to say
also between believers and non-believers. It is at this for religious scruples, nothing more. This is the reason
point that the principles involved suddenly become why it is related to the personal freedom to think and
blurred. If there is liberty for both believers and non- to judge.
believers. then, it is inexplicable indeed that non-
believers could claim the right to prohibit the mention And this, too, is the reason why freedom of
of God. Jesus Christ or the Holy Spirit everywhere. conscience is not absolute. 5o It can be restricted in
order to prevent grave and immediate danger to national
Religious liberty is the product of a rich and fruit- interest which the state has a right to protect. 51 So
ful experience in which persons of differing faiths are long as a particular creed or practice does not pose
able to live peacefully with one another. The lesson a grave and immediate danger to the national interest,
gained from religious tolerance and religious liberty is neither the government nor any other group in the
maintenance of the basic principle of the separation community can inquire into and pass judgment upon
of church and state. it notwithstanding the fact that it may seem to many
as strange or odd. 52 But the practices of polygamy
Religious liberty embodies three distinct but and free sex, for examples, cannot claim protection
related aspects: 1) freedom of conscience, 2) freedom from intervention despite the claim that they are in
of worship. and 3) freedom of religion. 48 conformity with deeply held religious tenets. These
practices are inimical to the social interests in the
Freedom of conscience is essentially freedom of general morals and moral progress, besides the fact
religious thought and belief. It includes individual that they are not just religious scruples.
autonomy in the determination or choice of religious
faith or creed as well as the freedom to join or not to Freedom of worship, on the other hand, means
join, or to withdraw or not to withdraw from any the unhindred acts of public (corporate) and private
connection and work of a religious group. Freedom (individual) worship, of preaching and teaching, of
of conscience is indispensable for the preservation of publishing and circulating religious literature, and of
upholding religious beliefs by means of personal
S. Ct. 461, 92 L.Ed. 649; 7.orach u. Clauson, 343 U.S. 306, 72 S.Ct.
697, 96 S.Ed. 954. The Malolos Constitution of January 30, 1899 49ctrourd u. United States, 328 U.S. 61, 66 S. Ct. 820, 90
provides also that the state recognizes the freedom and equality L.Ed. 108; Speiser u. RandalL 357 U.S. 513, 78 S. Ct. 1332, 2
of religious worship as well as the separation of church and state. L.Ed. 2nd 1460.
President William McKinley's Instructions to the Philippine Com· 50west Virginia State Board of Education u. Barnette, 319
mission of 1900 provided that the separation of church and state U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Thomas u. Collins, 325
shall be real. entire and absolute. U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430.
480wEN G ., FA111-1 AND F REEDOM, 21 PFCC, Manilla; Cantwell 5lrdem.
u. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L.Ed. 1213. 52Reynolds u. United States, 98 ll.S. 145, 26 L.Ed. 244.
466 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 467
presence, gifts and services. 5 3 This particular aspect religious creed and faith in all forms of expression to
of religious liberty involves the right of everyone to every willing person for the purpose of persuasion.
worship freely in his or her own way or in the tradition commitment and conversion. As such, it includes also
and practices of his or her own religious group. But the exemption from acts and practices committed to
the right to render public or private religious reverence destroy, in whole or in part, any religious group or
or homage does not involve the use of the organs, sect as such. whether by physical means or by pre-
instruments or properties of the government. Like scription or imposition of what shall be deemed or-
freedom of conscience. freedom of worship can be thodox or correct in matters of faith, ceremonies and
restricted to prevent grave and immediate danger to practices. Thus, permeating freedom of religion is the
the national interest which the state has a right to principle of legal equality of all religious groups. This
protect.54 Child labor laws can validly regulate the means the equal treatment of and equal opportunity
activities of children for their own welfare even over for all religious groups. Merely because a religious
the claims of their parents that they are in the exercise group or sect is disagreeably contentious, or aggressive,
of their freedom to worship. 55 A religious group can or noisy is not a ground to deprive it of freedom of
be compelled to submit to vaccination over their appeal religion. 57
to their freedom to worship. But children in public
schools cannot be compelled to salute a flag or recite (3) Civil Liberty
a pledge of allegiance where such practices partake Civil liberty, as the third coordinate of the social
of or has religious significance. 56 These practices trench value "liberty', is broader in scope than the other
already on the freedom of conscience. types. It embraces fundamental exemptions and
immunities which have to do with property. marriage,
Freedom of religion means the autonomy of a family, and education. They are secured and safe-
religious group to determine its creed, ritual, polity, guarded in constitutions for the enjoyment of the
disciplinary rules and regulations. to organize local people. It is noteworthy that they are "considered
churches, parishes, and congregations, to operate and fundamental not because they are enshrined in the
conduct its activities and services, and to carry constitution but rather they are guaranteed and
protected there because they are fundamental." And
they are fundamental because they are personally
53Prince v. Massachussetts, 321 U .S. 174, 64 S. Ct. 438, 88
and presently enjoyed by human beings as an
L.Ed. 645; Murdock v. Pennsylvania, 319 U.S. 109, 63 S. Ct. 870, essential part of their dignity. According to an acute
87 L.Ed. 1292. authority on civil liberty, human rights partake the
54west Virginia State BoardofEducattonv. Barnette, 319 U.S. nature of written guarantees to protect the indivi-
624. 63 S.Ct. 1178. 87 L.Ed., 1678; Thomas v. Collins, 325 U.S.
516. 65 S. Ct. 315, 89 L. Ed., 430.
55Prince v. Massachussetts. 321 U.S. 174. 64 S.Ct. 438, 88
L.Ed. 645.
56cerona v. Secretary of Education, l 00 Phil. 2. 57Cantipell v. Connecticut, 310 U .S. 256. 310.
468 LEGAL PHILOSOPHY POLICY Sc!ENCE PERSPECTIVE 469

dual from the challenge of the political will or wish opinion. But assuming that this is possible, it ts
of the government itself. 58 likewise likely that by the time all the information are
in. public opinion when finally articulated may no
(4) Political Liberty longer be relevant or that it may have become acade-
mic. Thus, the freedom to discuss openly public
The minimum content of political liberty is the
questions and to publish and read both orthodox and
right of the citizens of an organized civil society to
unorthodox or popular and unpopular ideas. opinions
influence and participate in the management and
and matters are related to or connected with political
operation of public affairs and political processes. Its liberty.
enjoyment depends a great deal on the physical con-
dition of peace and order.
On another plane is the extensive and · wide-
spread sharing of governmental authority in the com-
Intimately connected with political liberty are
munity. This is a healthy sign that the legal order.
certain authorities and exemptions: 1) the privilege of
that is to say law and government is democratic in form
citizenship, 2) the claim to a free and genuine suff-
and substance. This would mean that the electorate
rage, 3) the claim to peaceful assembly and association.
must include not only both male and female but also
4) the power of petitioning the government for the
the largest possible percentage of the entire citizenry.
redress of grievances, 5) the power of addressing public
The interests and purposes of all are then better safe-
authorities on matters connected with the political
guarded in this climate of political liberty. Thus. it
process and opera lion of public affairs, 6) the claim is of the utmost importance that political liberty and
to equal access to public office, 7) the claim to free
its concommitant rights are liberally and equitably
and accurate information, and 8) the claim to the shared in the community.
proper disposition of the public funds.
(5) Economic Liberty
Political liberty insures at least a two-party system
which is quite necessary to maintain a balance of This type of liberty is related to the second aspect
political power. The citizens are. in turn, obliged to of personal liberty. In other words. personal liberty
take active part in public affairs. to inform and does not only mean freedom from bodily harm but also
express themselves as much as possible upon public the enjoyment of economic justice.
questions. Public opinion should, therefore. be free.
that is to say based on accurate information. But this The economic activities of a person can be sub-
may be difficult since it is very unlikely that all the sumed in two main parts, namely. product.ion and
facts ever will be in before the formation of public consumption. Exchange and distribution of goods and
services are involved in these activities. Production
is the creation of goods and services for the satis-
58FHAENKEL, 0 .. Ou1{ C 1v1L L111E1<m:s. 61. Viking Press, New faction of human wants. On th~ other hand, consump-
York. tion is the process by which services and goods are
470 LEGAL PHILOSOPHY POLICY Sc!ENCE PERSPECTIVE 471

used in the satisfaction of human wants. Thus, econo- money steady or approximately steady and against
mic liberty means essentially two tWngs: 1) the privi- constant adjustments in its worth or value.
lege of choosing and preparing for and engaging in any
profession. business, industry, employment. trade, or These national policies point to the fact that
vocation, and 2) the privilege of acquiring, holding, practicable advantages and benefits can be enjoyed by
using, consuming, controlling, or transferring services, everyone, whether producer or user.
property. or goods of existence. In other words, econo-
mic liberty means the freedom as a producer or user (6) National Liberty
in a competitive system without interference from the It is not unimaginable that there can be national
government beyond regulations wWch are necessary liberty even in a community that is not independent
to keep the economy in balance and order. of outside control or dominion. But since a dependency
•• has always been considered the monopoly of a domi-
There are certain national policies that are nant state. national liberty has always been the prime
essential to the enjoyment of economic liberty. concern of a dependent people. But this particular
social value does not necessarily mean absolute in-
Among the national policies under the first dependence nor ultra nationalism. The myth of
aspect are the policy against acts and practices pro- complete independence grew out of the influence of
motive of monopoly and destructive or preventive of the concept of absolutistic sovereignty wWch itself
free and natural competition: the policy concerning the was nurtured in the context of the political and social
freedom to market one's products or services and the conditions of the times in wWch it was posited. Both
provision for adequate marketing facilities: the policy gained rapid ascendancy during the rise of extreme
concerning the freedom to form, join, or assist pro- nationalism in continental Europe on the strength of
fessional or labor associations or unions as well as the writings of Bodin, Hobbes, Rousseau, Kant, Hegel,
industrial or business organizations: and the policy and Austin.
concerning provisions for the construction and
maintenance of Wghways. railways and feeder roads In the jurisprudence of policy science, the
from producing areas. absolutistic patterns of sovereignty and independence
are considered as anachronistic. It appears that no
Among the national policies under the second nation or people today is or can be completely and
aspect of economic liberty are the policy concerning absolutely independent, however great or strong it
the stability, certainty. and security in transactions might be. The very fact ofco-existence alone presupposes
and acquisitions in consonance with established some kind or degree of dependence.
standards of fair dealing; the policy concerning pro-
visions for adequate and proper safeguards to avoid Thus, another pattern is insisting for recog-
inflationary trend or jolting deflationary tendency; nition. It views sovereignty and independence as
and the policy concerning the keeping of the value of relatively unimportant. In the jurisprudence of policy
472 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 473
science these are sublimated to the need for lasting The other paradox is found in governmental
peace and security. This means the toning down of support of this social value. Even when the govern-
the national ego. Thus, each particular state is ex- ment is not its enemy, governmental support has not
pected to offer what is needful for the world good been adequate. In the case of In Re Parazo, 59 the
and give up absolutistic ideas of sovereignty and in- Supreme Court of the Philippines aptly discoursed that
dependence for the lasting peace and security of hu- when the government itself is involved in controversies
mankind. This concept is a recognition and valid- concerning this social value it is very likely that it will
ation of the proposition that the entire human com- consider human liberties as undue restrictions and
munity takes precedence over national communities interferences in the exercise of governmental powers
in matters related to international or regional peace and functions.
,. and security.
Repeated and serious violations of this social
In policy science jurisprudence, therefore, na- value are symptomatic of a deteriorating legal order.
tional liberty comes with a two-fold meaning. First Since adhoc solutions cannot very well cope with the
autonomy or the right of determining and establish- problems of violations of human liberties, then
ing the form of government which the people considers planned solutions must deal with the reality of the
best in safeguarding its values and rights. Second, conditions or situations obtaining in the community.
the task of discharging properly its external obliga- The planned solution must point to the creation and
tions and contributing to the maintenance of lasting fostering of the conditions where human liberties will
peace and security. thrive and the elimination of conditions where they are
imperiled. The conditions where they are often se-
F. PARADOXES OF EFFECTIVE LIBERTY riously violated are economic insecurity, moral deg-
There is a seeming contradiction in the recog- radation, violence, and wars. While these are not
nition given to the social value "liberty." It is still permanent conditions or situations, nonetheless. they
actually necessary even in the legal systems where this are the conditions where this social value can
social value exists to resist encroachment and intru- shrivel and die. These withering conditions can be
sion upon it not only by government action but by eliminated by preserving the interest of society in the
private restraints as well. It is a fact that despite its dignity and worth of human personality. and the
inclusion in the catalogue of rights in constitutions interest of society in the general progress. These
and avowals in the decisions of higher courts, violations interests are manifested or expressed by national
are notoriously frequent and serious even in normal policies and as such can be implemented specifically.
(and especially in abnormal) times. Indeed, the
guaranties of "liberty" are the results of the difficult The conditions under which human liberties will
and painful struggle against exercise of the powers of likely thrive and grow are peace and order. social
government and of private pressure groups.
5982 Phil. 230.
474 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 475
security and financial stability. These conditions can ience of present-day societies. This as well as the
be fostered by sharing as widely and as equitably as idea that a person is sufficient by himself or her-
possible with all the members of the community the self are the criticisms against the Stoic idea of
means of economic betterment and the eradication of equality.
conflicts as well as the causes of friction. They need
to be shared in this manner because the success of The doctrine that all persons are created equal
any task depends greatly on the things which are can be understood better by considering what it is not
done together by the people. The causes of friction and, thereafter what it is.
and conflict cannot be eradicated by individual or
isolated group action. It is better done by or through A NEGATIVE AsPECT

.. collective participation in action. In the first place, equality is not absolute simi-
larity. Among the natural differences are race. sex,
61. THE SOCIAL VALUE "EQUALITY"
status. energy. ability, aptitude. These dissimilar-
'Ihe concept of equality is traceable to the cosmo- ities are not something to be afraid or ashamed of.
politan outlook of the Stoic formula of equality of The same traditional and orthodox version of human
individuals, nationalities and races. This is based on creation also accounts for the basic of dilferences -
the maxim of the Stoics that "all men are equal by sex: So God created man in His own image. in the
divine right since all men are of divine origin," This image of God created He him: male and female created
is an echo from Cleanthes' Hymn to Zeus: "For we are He them. 61 The German theologian Emil Brunner
also thy offspring and alone of living creatures stated that the concepts of equality and inequality
possess· a voice which is the image of reason, and in come from the same source.62 Thus. equality is not
the sight of God a slave is of as much value as a the obliteration of the natural inequalities of persons.
monarch for each is a divine spark of the divine It would be tragic otherwise.
reason." St. Paul also appealed to the Stoic concept
of equality in his statement made before the Council In the second place, equality is not an assur-
of Aerophagus in Athens: "For in Him we live and ance that everyone shall. as a matter of fact. be the
.move and have our being as certain also of your poets same in all relations. It does not mean a system of
have said that we are also thy offspring."60 strict parity of property. nor an exact identity of social
status, that is to say educational attainment, honors,
The Stoic reference to the idea that all persons functions, and standing.
are of divine origin is a presumption that they are the
epitome of the divine in their own little worlds. But
this is not self-evident for it is not clearly the exper-
6 1 oenests 1:27.
62BRUNNER, E .. Jusn cE AND n-rE Soc!AL ORDER. 40 Harper & Row.
60The Acts of the Apostles 17:28. New York.
476 LEGAL PHILOSOPHY POLICY Sc1ENCE PERSPECTIVE 477
(1) Jural Inequality the observation that neither the university president
Differences or inequalities are jural when they are nor a custodial worker of the university would be
happy if they were made to live in the same housing
material and relevant to the legal ordering. Thus,
equality can be realized even when inequalities are compound. If "equality" is taken to mean the obliter-
considered proVided they are jural in nature. It would ation of all educational. proprietary. aesthetical, or
be a mistake to think that every inequality or dispar- volitional distinctions and differences. then the equal-
ity can be resolved. There is no need to insofar as izing process would mean the levelllng of all down to
certain inequalities are concerned. If the inequality the lowest rung. The obvious result would be a plane
is material or relevant to the legal ordering of society, of inferiority, and, worse, ultimate decadence. If any
then the principle of equality is not violated. In this levelling is to be pursued at all, it should be up-
context. both inequality and equality are equally ward. In different words. the process should involve
equal. Thus, relevant inequality in status, such as substantial mitigation or removal of irrelevant or
that which exists between married and unmarried immaterial inequalities.
persons, is recognized by the legal order. Among
other relevant and material inequalities enjoying the B. POSITIVE AsPECT

recognition of the legal order are the inequality exist- The question is not whether the social value
ing between parents and children, minors and persons "equality" is completely attainable. The point is that
of legal age, insane persons and persons with sound this social value is worth striving for in the areas or
and disposing minds, wards and guardians. 63 parts where they are attainable.

(2) Invalid View of Equality In the policy science approach, the doctrine that
The clamor for absolute equality stems from the "all men are equal" means that each person's well-being
false and incorrect perception that equality means and happiness is as secure and inviolate as that of
similarity of all in matters of social relationships. every other person. In these areas. equality is quite
While strictu sensu this is not altogether an impossi- decisive in the sense that everyone has a rightful
bility, nevertheless. it is fraught with much danger claim to equal treatment and protection of the law.
for both the individual and society. There is verity in regardless of any inconsequential and insignificant
disparity. Thus. any classification or restriction. no
matter how slight. based on irrelevant disparity will
be unsound. If allowed. such classification or restrict-
631:'-.
r 1<1EDMAN. W., LEGAL TMEoRY. 2nd Edition, 43. Stevens & ion would only result in resentment on the part of the
Sons. London. An exhaustive treatment of the relationship bet- aggrieved party and ultimately create tensions in the
ween equality and Justice Is found In Westen. P., The Empty Idea
of Equality, 95 Harvard Law Review, 537; Greenewalt, K., How legal ordering of society. This ca1~ reach a critical point
Empty is the Idea of Equality?, 83 Columbia Law Review, 1167; and cut off the community away from free forms of
Westen, P., To Lure the Taratula from· its Hole: A Response, 83 government.
Columbia Law Review, 1186.
478 LEGAL PHILOSOPHY POL.ICY SclENCE PERSPECTIVE 479
C. CoNS1ITUENT PARTS silver platter but also directed attention to the propo-
One of the modern trends in the analysis of the sition that equality as to each person's well being and
concept of equality is that advanced by John Rawls happiness is a valid principle of social living. These
(1921-). He advocates two underlying principles. are the rights which the members of a politically
First, the equal right of everyone to the total system organized society have, regardless of whether they are
of basic liberty. Simply put, there can be no equality alike or unalike.
without liberty. Second, fair equality in opportun-
(1) Equality and Balance Before the Law
ities to offices and positions in order to heighten the
chances of those with lesser chance or opening. 64 The In this type of equality, all individuals have a
thrust of these principles is the equitable sharing of rightful and lawful expectation to the same treat-
social goods (e.g.• respect. honor) as well as material ment and protection of laws without regard to persons
goods (e.g., necessities, immediate comforts) "to the involved. Conversely putting it, all individuals owe
greatest possible of the least favored."65 equal obedience to the laws. Thus, no person is above
the law as to be exempt from its requirements. or
This Rawlsian concept was presaged by two beneath the law as to be deprived of its protection.
leading Philippine cases, namely. Guido v. Rural
Progress Administration. 66 and Republic of the Philip- To give an adequate characterization of this
pines v. Baylosis. 67 In these cases, the Supreme constituent part of "equality" regard must be given to
Court of the Philippines. speaking through Justice the simple and the distributive types.
Jose P. Laurel. expressly referred to the positive
aspect of the social value "equality." According to (a) Simple type
Justice Laurel, what social justice and the consti- There is still equality and balance before the law
tution do guaranty "are equality of opportunity, even when disparities with regards to race, sex, lan-
equality of political rights. equality before the law, guage. religion, nationality. property, and other
equality between values given and received. and the grounds not affording a proper basis for distinctions
equitable sharing of the social and material goods between individuals, classes. or groups are involved.
on the basis of efforts exerted in their production." The reason is simple. These grounds are immaterial
The Court not only emphasized that the constituent and irrelevant to the legal ordering of society. This is
parts of the social value "equality" do not come on a known as the simple type of equality and balance
before the law.

64RAWLS, J .. A 1\1EORY oFJusncE. 302. Oxford University Press, Actual inequalities on the basis of sex concern-
London. ing, for instance, the exercise of suffrage, are imma-
65Jbtd.,303. terial and irrelevant. So are the actual inequalities
6684 Phil. 847. on the basis of color or religion concerning. for ex-
6796 Phil. 461.
480 LEGAL Pl-llLOSOPHY POLICY ScIENCE PERSPECTIVE 481

ample, employment opportunities. In the famous anti- Thus. the recognition and enforcement of restric-
segreation cases,68 the immateriality of racial inequal- tive conditions. requisites, devices, and covenants
ity in separating white and black children in public running with municipal zoning, segregation in em-
schools was upheld not.withstanding the fact that the ployment. travel, public amusement areas based
facilities in the segregated schools for whites and solely on grounds of race, language, religion, nation-
blacks are the same. The anti-segregation decision ality, or previous conditions of servitude, are some of
ruled that the "separate but equal" formula in public the acts and practices which illustrate inequality and
education has no place in the community and sepa- imbalance before the law. 72
rate educational facilities based solely on race is
unequal. 69 These cases vindicated the stirring dissent (b) Distributive Type
of Justice Harlan in Plessy v. Ferguson, 7 0 where he
The second is the distributive type of equality and
wrote: "Our constitution is color blind. and neither
balance before the law. This means apportion-
knows nor tolerates classes among citizens. . . . The
ment of benefits and burdens that can be shared
thin disguise of equal accommodations . . . . will not
among the members of society. Here the law cannot
mislead anyone. or atone for the wrong this day
set aside or disregard relevant inequalities. They
done."
have to be recognized otherwise the equalization proc-
ess itself will be unjust and wicked. as when the
The simple type of inequality has no bearing at political burdens and benefits are distributed alike,
all in the legal ordering of society because the matter or the rich and the poor are taxed equally. As stated
deals with what is due to everyone, something which above, there is also equality even in inequality when
is theirs by right. As stated in Smith Bell and Company it is essential and relevant to the legal ordering of
v. Natividad. 71 the vital point implicit in the simple
society.
type of equality is the treatment of human beings as
equals especially since they can in fact be so treated For a simple example. assume that a crop failure
despite their actual inequalities in physical conditions in rice has occurred and rationing of this staple com-
and circumstances. modity has become necessary. It is very likely that.
for lack of time to study the problem in detail. the
68Brown v. Board of Education (5 cases), 347 U.S. 483, 74 system of distribution was made on the basis of one
S.Ct. 686, 98 L.Ed. 873. sack of rice per family every four weeks. This, no
69-ibe Court followed the basic philosophy In the Brown doubt, is an equal distribution but it is an unfair one.
case In subsequent cases Involving segregation at public beaches Equal shares may not be equitable shares. Indeed.
and public playgrounds (Mayor of Baltimore City v. Dawson, 350
U.S. 877, 76 S.Ct. 133, 100 L. Ed. 774) at municipally operated
this system gives one family all it needs for a given
golf courses (Holmes v. Altlanta, 350 U.S. 879, 76 S.Ct. 141, 100
L.Ed. 776) culminating In a unanimous decision In Copper v.
Aaron, 358 U.S. 1. 78 S. Ct. 1401, 3· L.Ed. 2d. 5. 72Frank and Munro, The Original Understanding of ·Equal
70163 U.S. 537, 16 S . Ct. 1138, 41 L.Ed. 256. Protection of the Laws.· 50 Columbia Law Review. 167.
7140 Phil. 146.
482 LECAL Pl llLOSOPHY POLICY ScIENCE PERSPECTIVE 483

period of time and another family a fraction only of to prior to the passage of the statute. 7 5 The first con-
what it needs. Sooner than later the system will fail dition is based on the actual inequality between the
because relevant inequalities in the sizes of families aborigines and the people in the lowlands. This was
and the needs of each individual members of each taken by the Court as essential and relevant to the
family have been disregarded. Once relevant inequali- classification made in the statute. stating that "the
ties and needs are established, the bigger families with classification rests on real and substantial. not merely
laborers performing heavy and exhausting work will imaginary or whimsical. distinctions. It is . . . based
have to receive bigger rations. There is no question upon . . . the degree of civilization and culture. . . .
that there is still equality and balance before the law This distinction ... was intended to meet the peculiar
for all in this solution. They will all end up equally conditions existing in the non-Christian tribes."
satisfied although they are treated differently.
The second condition of tolerable or allowable
Thus. measures and enactments containing dis- inequality in the legal ordering is also met in this case.
crimination or inequality may be tolerated or allowed The statute in question is not limited in its application
in society if the basis of the classification is reason- to conditions existing at the time of its enactment.
able. Discrimination is not arbitrary and capricious The statutory regulation was intended to apply for as
as held in People v. Vera. 73 and People v. Cayat. 74 long as those conditions exist. Said the Court, "[T)he
if it fulfills four conditions: I) when it is based on civilization of a people is a slow process and that hand
real and substantial distinctions. 2) when it is not in hand with it must go measures of protection and
limited to existing conditions only. 3) when it is ger- security." As to the third condition. the statute is
mane and relevant to the accomplishment of some germane and relevant to a valid purpose. The pro-
valid public purpose. and 4) when it applies equally hibition is undoubtedly designed "to ensure peace and
to all the members of the same class slated for order in and among the native tribes [for whom drink-
special treatment. This equality in inequality is well ing liquor other than the native wine) have often
illustrated in the Cayat case where the validity of Act resulted in crimes. thereby hampering the steps taken
No. 1639 was assailed on the ground that it was a to raise their level of life." The fourth condition is also
denial of the equal protection of the law. The statute satisfied because the statutory regulation applies to
made it a punishable o1Tense for any aborigine to all the members of the same class. Although the
buy. receive. possess. or drink any ardent spirits. regulation may entail some difficulty in its application
ale. beer. wine. or intoxicating liquors of any kind. to the native tribes by reason of their degree of
;
other than the so-called native wines which the culture this is not an argument against equality of
members of such tribes have accustomed themselves application.

7365 Phil 120. 75niis seems to suggest that the native wines are milder
7 4 68 Phil. 12 than the prohibited liquor.
484 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTIVE 485
(2) Equality and Balance of Opportunity But even these affirmative policies and actions
Inequalities of chance and condition negate have not escaped criticisms. They have been attacked
equality and balance of opportunity to enjoy the on two principal grounds: I) they are unfair and
enviable objects of human desire. But this dimen- unjust in themselves because they are condusive to
sion of the social value "equality" does not mean reverse discrimination, and 2) they are contrary to the
equivalence of differences in opportunity. As stated constitutional principle of equal protection of the law.
earlier, when the differences are relevant to the legal
ordering of society such differences are applicable. The yardstick of individual merit as a means of
Otherwise, the levelling process would be down- effective expression of equality and balance of oppor-
ward and not upward. Equality and balance of op- tunity calls for the elimination of interferences on or
portunity mean equal condition and equal access to hindrances to individual initiative and determination
the effective expression of individual merit toward on the basis of the compelling social interest and
success or even failure. social values. There are cogent reasons behind this
proposition. One. the members of the community
But what is the meaning of equal conditions and are able to realize sooner than later their responsib-
equal access. The social realities complicate the race ilities. Two, the criticisms levelled against affirmative
for the good life. It is not the same for example. for policies and actions are met.
the rich and the poor. With regards to the former,
the latter is handicapped and burdened by dis- (3) Equality and Balance of Rights and
crimination, prejudice. hostility, or lack of economic Freedoms
means. They are not able to compete eqt..:ally with the Human dignity is the basis of this particular aspect
former, e.g., inequalities in getting an education or of the social value "equality." As stated in another
employment, renting a room, buying a house, or chapter, this type of equality stems from the philo-
engaging in business. These social realities have sophico-theological conviction that all persons are
been addressed by means of affirmative policies and created imago Dei. In view of this. it is generally per-
actions. e.g., permitting aliens lawfully and uncon- ceived that every human being is endowed with
ditionally admitted in a country to earn a living except certain primal or original rights and fredoms. These
in areas indispensable or sensitive to the national rights and freedoms are not concessions of the gov-
security,76 educational programs, special training ernment to the people. They can, indeed. be asserted
courses, hiring quotas for minority groups. balancing against the government at any time.
01 of gender initiatives.
The primal rights are: 1) the right to life, liberty.
security, and property. 2) the right to religion. 3) the
right to education and free exercise of the mind, 4) the
76Truax u. Raich. 239 U .S. 33. 60 L.Ed. 131: Takahashi u. right to free expression. and 5) the right to peaceably
Ftsh and Game Commission, 334 U .S. 410, 92 L.Ed. 1472. assemble for the redress of grievances.
486 LEGAL PHILOSOPHY POLICY ScIENCE PERSPECTTVE 487
The right to life refers to the right of persons that The right to religion deals with the right of human
their bodies and souls are not to become the property beings to believe in God and to trust religious tenets
of anyone. nor of any political. religious or social and teachings. Faith is simply complete confidence
system. Thus. the right to life means the justification in God and His revelations. As the writer of the Letter
to live it and no one has any power or license to take to the Hebrews puts it, to have faith is to be sure of
or despoil it. Under this primal right is included the the things we hope for. to be certain of the things
corollary right of planned family and parenthood, we cannot see. 77 It is not failh when based on any
whether through natural or artificial methods. except insight of reason.
abortion.
The rtght to education has to do with the right
The right to liberty deals with the right of persons of human beings to the adequate development of the
to the enjoyment of their legal authortties and legal mind. As stated earlier, all persons by nature have
immunities. Thus, it is a common interest to counter a desire to learn. "One of the basic manifestations of
injustice and tyranny and the evil forces that go with deference to human beings is to give full weight to the
them. fact that they have minds."78 The enviable objects of
human desire will likely elude a generally uncouth
The light to security and pursuit of happiness society. Culture and. hence. progress stem from the
has to do with the right of human beings to the free exercise of the mind.
realization of safety. well-being. and graceful attitudes.
The right to free expression refers to the right of
The right to property refers to the right of human human beings to make known their opinions. beliefs.
beings to a state of freedom through possessions. No or feelings as well as to the means of guaranteeing
person can really be free without property. A person such right. This is subject to the clear-and-present-
cannot act freely when he or she has nothing at his danger rule.
or her disposal. In such a situation. a person will be
under some kind of restraint or control by others. But The right of peaceable assembly deals with the
this right entails the obligation of faithful steward- right of human beings to secure a place and an
ship of possessions. This is relevant to the concept audience to test the worth or value of ideas or to meet
of abuse of property. This right does not exist in the with others to share their problems and seek for
system of collective ownership. Here there is no solutions.
feeling of freedom through possession because there
is no personal initiative. A person in such a system
will likely work only to meet his or her immediate needs 77 Hebrews 11:1 .
knowing that he or she will have no freedom of disposal 78Lasswell and McDougal. Legal Education and Public
over things produced beyond his or her needs. Policy: Professional Training in the Public Interest. 52 Yale Law
Journal, 225.
488 LEGAL PHILOSOPHY POLICY &!ENCE PERSPECTIVE 489
The equalization and balancing of all these rtghls In the case of Yick Wo v. Hopkins,82 the Supreme
cannot be accomplished by indiscriminate imposition Court of the United States in even s tronger terms
of irrelevant inequalities. Nor can equality and balance indicted the indiscriminate imposition of inequal-
in the enjoyment of these rights occur if such rights ities that are irrelevant and immaterial to the legal
are granted to certain persons lo the prejudice of ordering attempted in the statute involved in this
others. 79 case. An ordinance of San Francisco, California. re-
quired all persons wishing to establish laundries in
These points are well illustrated in the case of wooden houses to secure a permit. The ordinance
People v. Vera. 80 The Supreme Court of the Philip- gave the official power to give or withhold the permit
pines. in striking down the Probation Law81 as a denial not only as to places but even as to persons in-
of equality and balance before the law and of volved. There was evidence that the ordinance was in
equality and balance of rights and freedoms. held fact directed against the Chinese in San Francisco.
that "the resultant inequality may be said to flow from Said the Court: "Though the law itself be fair on its
the [fact that] one province may appropriate the face and impartial in appearance, yet if it is applied
necessary funds to defray the salary of a probation and administered by public authorities with an evil
officer. while another province may refuse or fail to do eye and an unequal hand. so as practically to make
so. In such a case. the Probation Act would be in unjust and illegal discrimination between persons in
operation in the former province but not in the latter. similar circumstances. material to their rights. the
This means that. a person coming within the purview denial of equal justice is still within the prohibition
of the law would be able lo enjoy the benefits of of the Constitution."
probation in one province while another person simi-
larly sllualed in another province would be denied (4) Equality and Balance of Political Value
those same benefits. Clearly.· this is obnoxious in-
This aspect of the social value "equality" means
equality."
that every individual must count for one and only one
in political participation without regard lo person. This
is the familiar one-on-one principle. No hedonistic
79shelley v. Kraemer, 334 U.S. I. 99 L.Ed. 1161. 68 S.Ct. calculation need enter in the measurement of the
386; Sweatt v. Painter. 339 U.S. 629, 94 L.Ed. 1114. 70 S. Ct. political value of an individual. One individual's polit-
848; McLaurtn v. Oklahoma State Regents. 339 U .S. 637, 94 L .Ed.
ical value should be counted no more and no less
1149. 70 S.Ct. 851. The trend In these cases was evident as
early as Missouri Ex. Rel. Caines v. Canada,305 U .S. 338. 59 S.Ct. than that of another. Otherwise, there can be no real
232, 83 L.Ed. 208 where the Supreme Court of the United freedom of lhe will from arbitrary subjugation to the
States held that the State of Missouri could not depend on the will of another. For if there be persons that could count
case of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138. 41 L.Ed. for more or less than others. there would no longer
256. The Caines case was followed by Sepuel v . Board of Regents.
332 U.S. 631. 68 S.Ct. 299, 92 L.Ed: 247.
8065 Phil. 56.
81Act No. 4221. 82 118 U.S. 356. 6 S. Ct. 1064, 30 L.Ed. 220.
490 LEGAL P1-11LOSOPHY POLICY ScIENCE PERSPECTIVE 491

be any assurance that individuals would be able to 62. THE OVERARCHING VALUE
enjoy their rights and freedoms.83 It is not easy to calibrate the most important social
value. While all social values are desirable, it is
There are ways by which an individual i::nay be nonetheless true that different individuals. being
made to count for more or less than what they are really ruled by heterogeneous interests and diverse pur-
worth in political value. poses, may not cherish with the same intensity the
same values at the same time or all the time. But it
The first may be called the direct means. Inclu- seems that almost everyone desires one social value
ded in this are, for examples: 1) the imposition of more than the others all the time. And it is a fact that
property or religrous qualifications in the exercise of this particular social value is also the first one to be
suffrage, and 2) the holding of controlled and dis- singled out for derogation or destruction whenever a
honest elections. It cannot be denied that no matter person becomes consumed with ambition and power.
how slight a qualification or requirement may be there Indeed. dictators have seen to it that this particular
will always be those who cannot meet it. No matter social value is the first to be denied the people. It is
how slight it may be it will be contrary to the equal- the stock argument of dictators that the security of
17...ation in value of the largest possible percentage of the state cannot be realized in a climate where respect
the citizenry in the electorate or body of voters. Inclu- for human personality and dignity prevails. Of course.
ded in the second subclass is the so-called "negative people learn too late that as the social value "respect"
vote-system" where the rabid followers and cam- goes so go the rest.
paigners of an opposing party are bought or taken
somewhere else so that they cannot participate in Thus, esteem for human personality and dignity
meetings, join political campaigns. or cast their votes. is the overarching social value. Where it is taken into
account all other social values are easier to attain and
The second way by which certain persons may be are then widely and equitably shared among the people.
made to count for more or less than what they are Conversely. where the social value "respect" is not
really worth in political value may be called the considered at all the other social values are difficult
indirect way. Included in this are: 1) the method or to attain.
system of intimidation or instilling fear. 2) the tech-

.
nique of suggestion or admonition of physical 63. CONCEPT OF LAW
violence. 3) the act of violence itself. and 4) the sys-
, tem of block-voting. The policy science school of jurisprudence posits
the view that the law can truly be an instrument of
global, regional and national control when "it is com-
mitted to the complete achievement of the social
values that constitute the professed ends of democ-

83Mandes v. Samonte, 49 Phil. 284.


492 LEGAL PHILOSOPI IY POLICY ScIENCE PERSPECTIVE 493

ratic societies. "84 This means that the law is an ad- tant. though, for policy science. jurisprudence is the
vocacy of consistent, compatible and · principled value-orientedness of the law.
policies. legislation and decisions on the basis of the
social values. From the perspective, then, of this juris- 64. IMPORTANCE OF THE POLICY
tic school the law is a vital instrument for ordering SCIENCE CONCEPT
conduct through the formation. clarification and re- In functional jurisprudence attention is directed
alization of the social values where "the patterns of to certain realities in the legal order of contemporary
authority are conjoined with the patterns of society. One of these realities is the inevitable con-
control. "85 This means that decisions or solutions flict of claims. demands and expectations. While an
for the legal ordering of society can be authoritative individual or groups of individuals seek to obtain a
and controlling only on the basis of the social values. position of advantage for their own interests it is a fact
II Where decisions or solutions are authoritative but that the legal order is unable to recognize all of
not controlling. then there is no law but only pretense. them at the same time. The conflicting or overlapping
and where decisions or solutions are controlling but interests has to be balanced because only those in-
not authoritative. then there is no law but only naked terests that are the result of compromise are really
power. 8 6
lasting.
This is an important contribution to legal philoso- In policy science jurisprudence. the conflict of
phy. For under this concept, statutes not in agree- claims, demands and expectations is also true in the
ment with the social values are neither authoritative regional and global levels. For policy science juris-
nor controlling, in much the same manner as the prudence, the approach to these conflicts is also based
naturalist jurisprudents view statutes which are on the social values. But the application of the social
contrary to the precepts of the natural law to be no values is not simply a matter of sincerity. A policy
law at all. But the policy science view of the nature planner, policy maker, or government functionary may
of law by no means implies that the knowledge and also be sincere in making or pursuing a bad decision.
certainty achieved by science has already been In policy science jurisprudence, a bad decision is
achieved in law. This may not even be possible simply one that is not in accordance with the social
because the law deals with relative and variable values. 87
factors. e.g .• purpose. duty. interest. What is impor-
65. END IN VIEW

I

84Lasswell. H. and McDougal, M ., Legal Education and Public


The goal towards which humankind has been
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r

TABLE OF CASES TABLE OF CASES 517


[References are to Pages]
c
A Cabansag v. Fernandez. 333
Abad v. Yance. 318, 387 Cafeteria Employees Union v. Angelos, 132
Ablaza TransporaUon Co., Inc. v. Ocampo, 16 Calalang v. Williams. 429
Abrams v. United Sta tes, 13, 326 Calder v. Bull, 65
Adamson v. California, 129 Cantwell v. Connectic ut. 464, 467
Aglipay v. Ruiz, 24. 54 Carino v. Ins ular Government, 377
Albert v. Court of First Instance of Rizal, 304 Carlson v. California. 131
Alvarez v. Court of First Instance Manila. 25 Carpenters and Joiners Union v. Ritter's Cafe. 132
American Banana Compa nyv. United Fruits Company. Caunca v. Salazar. 449
326. 329,330 Chicago B & Q R. Co. v. McGuire, 459
American Bible Society v. Cily of Manila, 333 Coca (Philippin es) Inc. v. National Labor Relations
American Communications Association v. Douds. 170 Commission. 393
Arizona Copper v. Hammer, 230 Commercia l Pictures v. Regents. 134
Atok-Big Wedge Mining Co .. Inc. v. Atok-big Wedge Consunji v. Pucan, 393
Mutual Benefit Association, 455 Cox v. New Hampshire, 461
Cooper v. Aaron, 480
B Craig v. Harney. 14
Cushing v. Rodman, 228
Bank of State v. Cooper. 51
Bernardo v. Bernardo. 23 D
Biddle v. Perovich. 255
Biflan Transporation Co .. Inc. v. Prieto. 16 D.M. Consuiiji v. Pucan. 393
Blackmer v. United States. 24 Dartmouth College v. Woodward. 458
Bonham's Case. 49, 53 Davidson v. New Orleans. 458
Bradfield v. Roberts. 54 Davis v. United States. 25
Briad v. Dela Cerna, 393 Dayton v. Dulles. 461, 462
Bridges v. California, 14 De Jonge v. Oregon. 24
Brown v. Board of Educa tion. 480 De La Costa v. Cleofas. 54, 55
Brown v. Mississippi. 23 Delos S a n tos v. Roman Catholic Church of Midsayap.
Buck v. Bell. 321 228, 229
Building Service Employees International Union v. Den v. Hoboken Land and Improvement Company, 458
Gazzam, 133 Dennis v. United States. 15, 161 , 169. 173
Burstyn v. Wilson. 134 Dorchy v. Kansas. 133
Dr. Bonham's Case, 49
Duncan v. Mage tte. 63
518 LEGAL PHILOSOPHY TABLE OF CASES 519
Dura built Recapping Plant v. Nationa l Labor Relations I
Commission. 393
Illinois ex rel. McCollum v. Board of Education. 346
In Re Fried, 313, 343
E
In Re J .P. Linahan. 338
Espuelas v. People. 332 In Re Leefer's Eslate. 166
Everson v. Board of Education, 463 In Re Parazo, 473
Ex Parle Chase. 340 Insular Life Employees Association v. Insular Life In-
Ex Parle Endo, 451 surance Co .. Inc .. 370. 389. 393
International Brotherhood of Teamsters v. Hanke, 132.
F 133
Feati University Club v . Feati University. 389 International Brolherhood of Teamslers v. Vogt. Inc ..
132
Federal Power Commission v. National Gas Pipeline
Co. , 65
Ferrazzini v. Gzell. 232 J
Jaballas v. Construction Developmenl Company of the
G Philippines. 393
Javellana v. La Paz Ice & Cold Storage Co .. 15
Gabriel v. Monte de Pieded. 227
Johnston v. United Stales. 249
Galvin's Case. 49
Jones v. City of Opelika . 347
Gerona v. Secretary of Education. 356, 466
Giboney v. Empire Storage and Ice Company. 132
K
Girouard v. United Stales. 465
Gillow v. New York. 13 Kent v. Dulles. 462
Goshen v. S tonington, 51 Korematsu v. United Slates. 451
Grosjean v. American Press Co .. 24. 134
Guido v. Rural Progress Administration. 276, 386. 4 78 L
Lacson v. Roque. 287
H
Lagunsad v. Gonzales. 219
Hamilton v. University of California, 24 Laurel v. Misa. 357
Herbert v. Louisiana. 23 Lepa nto Consolida ted v. Olegario. 393
Herndon v. Lowry. 24 License Tax Cases. 51
Hirobayashi v. United Slates. 451 Lochner v. New York. 27. 222 , 318, 324
Holden v. Ha rdy. 27 Luna v. Intermedia te Appellate Court. 56, 60
Holmes v. Atlanta. 480 Luzon Stevedoring Corporation v. Court of Industrial
Hughes v. S uperior Co urt of California. 133. 134 Rela tions. 390
520 LECAL PHILOSOPHY TABLE OF CASES 521
Lyingv. Northwest Ind ian Cemetery ProtecUveAssocia- Pan American World Airways v. PAA Employees' Asso-
Uon, 377 ciation, 12
Paraiso v. United States. 24
M Pasusta v. United States. 249
Malinski v. New York. 25 Pavesich v. New England Life Insurance Co.. 26
Mandes v. Samonle. 490 Pennekamp v. Florida. 14
Marbury v. Madison. 298 People v. Abad Santos, 24
Mariners Polytechnique Schools v. Leogarda. 393 People v. Cayat. 482
Marshall v. Industrial Commission. 69 People v. Collins. 231
Mayor of Baltimore City v. Dawson. 480 People v. Dava. 24
McColl um v. Board of Education. 346. 463 People v. Feleo. 331
McLaurin v. Okla homa State Regents, 488 People v. Fernandez. 24
People v. Fischer, 324
Medalo v. Court of Appeals. 393
People v. Holgado. 23
MercuryDrugCompanyv. Court oflndustrial Relations,
People v. Lopez. 337
389
Metropolita n Service v. Paredes. 27 People v. Molillos . 243
Milk Wagon Drivers Union v. Meadowmoor. 132 People v. Nabong. 33 1
People v. Navarro, 169
Minersville School District v. Gobolis. 347
People v. Perez. 13, 331
Missouri ex. re. Gaines v. Canada. 488
People v. Que Po Lay. 12
Mononga h ela Bridge Co. v. United States, 52
Morales v. National Labor Relations Commission. 393 People v. Ronda, 291
Mortera v. Court of Indus tria l Relations, 132 People v. Rosenthal. 228
Murdock v. Pennsylvania. People v. Vera, 482, 488
People v. Yuson. 252
N
People v. Sharp. 287
Peralta v. Director. 319
Near v. Minneso ta. 24 Perez v. Sharp, 237
Northern Bands of Shoshone Indians v. United States. Peters v. Central Labor Council, 133
358 Peters v. Hobby, 233
Philippine Associa lion of Free Labor Unions v. Cloribel,
0 132
Olsen v. Nebraska. 3 11 Philippine National Company v. Leogarda. 393
Picart v. Smith, 22
p Pierce v. United States. 13
Planas v. Gil, 24
Palko v. Connecticut. 23 Plessy v. Ferguson. 480
522 LEGAL PHILOSOPHY TABLE OF CASES 523

Plumbers Union v. Graham, 134 Speiser v. Randall, 465
Powell v. Alabama, 24, 54 Stack v. New York. 288
Prirnicias v. Fugoso. 24, 332 Story v. First National Bank. 226
Prince v. Massachussets. 466 Sweatt v. Painter. 488
Switzerland General Insurance Co .. Ltd. v. Republic of
R the Philippines. 196
Sy Chie Junk Shop v. Federacion Obrero. 293
Rapouille v. United States. 248. 249
Sy Tien Lai v. Republic, 251
Republic of the Philippines v. Baylosis, 236, 396, 478
Reynolds v. United States, 465.
T
Richardson v. Mellish, 226
RIG Construction Company v. Arroquiz, 393 Takahasi v. Fish and Game Commission. 484
Riggs v. Palmer. 68 Tan v. National Labor Relations Commission. 393
Rodriguez v. Tan, 114 Taflada v. Cuenco. 391
Royal Undergarments Corporation v. Court oflndustrial Thomas v. Collins. 134, 465
Relations. 393 Thornhill v. Alabama. 131. 133
Rubi v. ProVincial Board. 459 Traux v. Carrigan. 328
Rutter v. Esteban, 56, 60 Truax v. Raich. 484
1\vining v. New Jersey, 129
s
u
Salaw v.. National Labor Relations Commission. 393
Santos v. National Labor Relations Commission, 393 United Stales v. Ballard. 24
Savage's Case, 49, 50 United States v. Bustos. 24
Schactman v. Dulles, 452 United Slates v. Causby. 226
Schenck v. United States, 13, 131 United States v. Dennis. 14. 15, 161. 169
Sealand v. National Labor Relations Commission, 393 United States v. Flores. 392
Scott v. McNeal, 24 United Stales v. Franciosa. 249
Seen v. Tile Layers Protection Union. 132 United States v. Holmes, 118
Shelley v. Kraemer, 488 United States v. Lighfoot. 15
Sipes v. McGhee. 230 United States v. Molina. 12
Sipuel v. Board of Regents. 488 United Slates v. Nixon. 298
Smith v. California, 349 United Slates v. Paramount Pictures. 134
Smith Bell v. Natividad. 480 United States v. Perfecto. 24
Snyder v. Massachus s els. 23 United States v. Reyes. 25
Southern Pacific Company v. Jensen, 289, 300, 319,
385
524 LEGAL PHILOSOPHY BIBLIOGRAPHICAL INDEX*
I· [References are to Pages]
v
Vegelahn v. Guntner, 227 -A-
Veneracion v. Ice Plant. 16
Allen, C.K.
w indigenous law, 80
use of natural law. 52
Wellman v. United States, 15 .
West Coast Hotel Co. v. Parrish. 28, 459 Americana. J.
West Virginia State Board of Education v. Barnette, 14, new basis for international law. 44
347,354, 465 Angelo, F.B. (J)
Whitney v. California, 14 regulatory use of natural law. 58
Williams v. Kaiser. 24
Wilmar v. Vinc.e nt. 333 Aquinas, St. Thomas
Wolf v. Colorado. 25 absolute authority of the Romish Church. 122
application of legal principles, 129
y basis of natural law precepts. 136
capability of human reason. 124
Yassui v. United States. 451 changes in subsequent application of law. 129
Yates v. United States. 15 christianization of the Stoic concept of law. 122
Yick Wo v. Hopkins. 129. 489 church authority. 122
Yu Singco v. Republic, 250 concept oflaw, 122, 125, 126
distinction betweenjus and lex, 126
z ethicaljusUce, 126
Zorach v. Clauson. 464 flexibility in the application of law, 129
free will . 123
human reason. 124
immuta bility or law. 129
iniluence of metamaterial principles in the social
order, 122, 123
judicial legisla tion. 288
juristic justice. 126. 127
jus divinum. 124

'"The Initials (J) and (C .J .) indica te appellate court poslUon.


526 LEGAL PHILOSOPHY BmuocRAPHICAL INDEX 527
justice. 126 interpretation of laws. 67
laws derived from natural law, 48 judicial legisla lion, 288
metamaterial principle affecting the legal order. justice in relation to social conditions. 113
122. 123 justice. 113
natural law. 123 legal justice. 38
nutritive soul. 123 natural and positive law, 38
precepts of the natural law. 123. 125 natural justice. 38
primacy of the natural law. 123 numerical justice, 113
public welfare. 128 nutritive soul, 246
rational soul. 123 124 perfect and imperfect justice. 38
regulatory use of natural law. 48 positive equality. 396
right reason. 125 practical justice. 112
secular justice, 124, 127 pres tine form of rule of law. 375. 376
self-determination. 128 problem of the nature of law. 106, 107
separation of ethical justice from secular justice. proportional justice, 113
129 rational faculty of man. 114, 395
sophia, 125 rule of law. 375
use of natural law. 48 sound sense view of justice. 112
validity of legislation. 125 starting point in the study of the nature of law. 106
Aristippus Augustine.St.
coarse type of hedonism. 146 controversy with Pelagius. 123
Aristotle human depravity. 123, 124
basis of human nature. 263 moral nature and good faith of man, 41
concept of higher law, 38 reality of sin. 246
condition of social life. 107 Austin, J.
corruption of social order, 325 accidental relation of law and morality, 179
critique of absolute and rational type ofjustice, 112 aversion to n a tural law theory. 182
desire for knowledge. 442 binding force of positive law. 183
dilTerence between proportional and numerical types criterion of positive law. 183
of justice. 113 difference between law and morals. 182
distinction between natural and legal types of jus- distinction between law and natural law. 181. 182
tice. 33 law not necessarily a moral concept. 178
epielceia, 112, 174 legal positivism. 183
good faith, 107, 113 separation of law and morals. 178. 182
gregarious nature of man. 156 validity of positive law. 181
528 LEGAL PHILOSOPHY BIBLIOGRAPHICAL INDEX 529

-B- Borrough, R. (J)


indeterminacy of public policy. 226
Barker, E.
Brunner, E.
folksoul, 91
equality and inequality, 475
Bentel, W.
Burke, E.
critique of relativity of concepts, 170
social interest in the general progress. 269
Bentham, J.
criterion of moral goodness, 147 -c-
critique of natural law. 147·
Cairns, H.
ends of the law, 155
validity of positive law. 153
equality. 162
forces at work in the social order, 149 Cardozo, B. (J)
individual rights not surrendered to the state. 148 ascertainment of general morals. 248
individualist utilitarianism. 148 historical development of law. 46
measure of social utility of acts. 149, 154, 155 interaction of rules on facts. 334
public international law. 44 juristic ideal of ordered liberty. 23. 24
reduction of injustice. 155 metalegal stimuli in the judicial process, 330
reforms in English law. 44. 45 moral views of intelligent and virtuous persons. 248
regime of pleasures and pains, 150, 151 use of social interests. 237, 292
sovereignty. 128 Castberg. F.
test of good legislation. 154 historicity of law, 96
use of natural law. 44
Cavanaugh, J .
Bergson. H. foundation of jurisprudence. 3
intuitive perception, 250, 252
meaning of intuition. 250 Chase. S . (C .J.)
use of natural law. 51
Black. H. (J)
use of natural law. 129 Chrysippus
organizer of Zeno's teachings, 39
Blackstone. W.
su~remacy of natural law. 147 Cicero, M.T.
compulsion and obedience in law. 116, 117
Bocobo. J. (J) concept of justice. 117
trait of justice. 101 force of justice. 11 7
Bodenheimer. F. human destiny, 117
perception of legal realists. 296 importance of the study of jurisprudence. 4
530 LEGAL PHILOSOPHY BIBLIOGRAPHICAL INDEX 531

modera le form of hedonism, 146 -E-


nature and function of law, 117
Ehrlich, E.
principle of utility. 116
courts not the scene of a ll human life, 306
prudence. 118, 120
customary morality. 274
regulatory use of natural law, 48
development of la w, 207
Roman law influence on Greek concept of law, 116
interest of society. 207
Cleanlhes law and pragma tic ethics. 211
principle of equality. 39, 474 living law. 207
Coke, Lord (C.J.) Epictetus
logic and law, 301, 302 defeat of the natural good, 40
process of analysis. 302 free will, 40
reason as the life of the law, 301 metamaterialism. 40
use of natural law, 49. 50 natural law as a discipline, 40
Conception. H. (J) Epicurus
positive law and natural law, 62, 63 aesthetic hedonism. 145
repose of mind. 145
-D-
-F-
Dewey. J.
application of law. 366 Fallow, R.H.
end of law. 365 general morality, 252
life of the law. 363
Fraenkel, 0.
nature of law. 366
civil liberties and governmental challenge, 467
pragmatism. 295
social legal realism. 363 Frank, J.
source of law, 364 ascertainment of general morals, 249
community moral sense. 249
Dias, R. W. M.
equation of formal judicial process. 314, 315
word-magic in law. 416
exercise of fact -discretion. 314
Drake, J. fact skeptics, 313
illustration of representational idea of law, 110 folly of concealing role or metalegal stimuli, 341
importance of facl -Ilnding a l trial court level, 313
Dworkin, R.
judicial mind. 349
moral ethos of society. 252
lack of means lo measure accuracy of trial courtfact-
view of critical legal realism, 370
finding. 3 15
532 LEGAL PHILOSOPHY B IBLIOGRAPHICAL IN DEX 533
metalegal stimuli, 337, 338, 341 Glanville. J.
myth of legal formalism. 310. 311 notion about Aquinas, 123
rule skeptics, 310
slavish reliance on legal rules, 310 Gray. J.C.
sources of law. 313 avoidance of transcendental ought. 306
stimulus set by witnesses. 343 difference between "a law" and "the law," 306
subjective facts. 314 judicial legal realism. 308, 309
legal realism and legal positivism. 309
Frankfurter. F. (J) nature of law, 306. 328, 361
conscientious bbj ectors. 351. role of metalegal stimuli, 334
potency of due process of law. 25 sources of law, 307, 308. 361
stimulus set by historical events and political
precendents, 350, 352 Green, T. (J)
use of natural law, 50
Friedman. W.
Kant's accomplishment for jurisprudence, 142 Groot. J . (Grotius)
use of individualist utilitarianism. 148 use of natural law, 43, 44
Gumplowicz, L.
Frost. S. E. Jr.
fading of philosophy or the folksoul, 77 critique of natural law, 207
interests of society. 206
Fuller. L. social differenliation. 207
critique oflegal positivism. 209
-H-
-G-
Hagerstrom. A.
Gaius fallacy of objecUvizing "righ t", 421, 422
jus civile, 121 legal ideology. 41 7
jus naturale. 121 problem with the existence of rights. 421
legal cleansing. 121
Hand. L.
Gentile. A. ascertainment of general morals. 248
use of natural law. 43 best guess approach. 249
Gierke, 0. grave and probable danger rule, 14, 15
opposition to Roman la w principles. 185 meaning of present danger. 15
nature of constitution. 324
Gladstone. W. (C.J.)
natural law, 35 Harlan. F. (J)
inequality of separa te-but-equal formula, 480
use of natu ra l law. 52
534 LEGAL PHILOSOPHY BIBLIOGRAPHICAL INDEX 535
Hart. H.L.A. equation of judicial l gal realism. 302
separation of law a nd morals. 183 grounds of decisions. 227
Hegel. G. W. F. harmful speech. 131
actualization of concepts. 163 humanity of law. 300
dialectic idealism. 162. 163. 165 judicial legal realism. 301
folkmind. 164 judicial legislation, 289. 385
national conviction. 164 jurisprudence. study of. 3
nature of law, 162 law and human experience, 301, 330
principle of idenlilkation. 1.62. 163 law and logic, 320. 328
purpose of dialectic pattern. 163 law and the bad-man theory, 303
rationalization of the common good, 24 legal premises and social advantage, 321
synthesis of family and society, 164 life of the law. 301. 320
metalegal stimuli and the judicial process. 301, 302
Heraclitus molar to molecular motion. 318. 319, 360, 385
natural law. 36 national policy. 227
problem wilh human society. 429 natural law precepts. 299
Herodutus nature of conslitulion. 324
democracy as the rule of the people, 400 realist concept of th e nature of law, 301. 304, 328
rol~ of the syllogism in the judicial process. 302
Hoadley. B. social advantage. 227, 321, 323, 325, 326
seed of judicial legal realism. 298 study of great philosophers and jurisprudents, 3
true lawgiver. 298 study of jurisprudence, 3
Hobart, Lord (C.J.) theory of the "good man, .. 303
use of natural law. 50 validity of legal premises. 321
Hobbes. T. Hook, S.
improbability of a statute lo be unjust. 130. 180 changing conditions of limes. 168
legal positivism. 130 primary desires in la w, 168
Holmes. O.W. (J) Hosmer. H. (J)
approach to the study of the nature of law, 302 use of natural law. 51
aversion ·to natural law theory. 299. 349 Hughes, C. E. (C.J.)
broader view of the realist concept of law. 301 government and social values, 461
clear and present danger rule. 13, 14, 15
critique of formalist concept of law. 302 Hughes, G. B. J.
cynical shape of legal realism. 321 word-magic in la w, 416
economic ideal of freedom of contract. 27
536 LEGAL PHILOSOPHY BIBLIOGRAPHICAL INDEX 537

Hume, D. fulfillment of the law and the prophets. 33


concept of public benefit. 123 Golden Rule. 143
experiential knowledge, 136 Great Commandment. 34
fair equality. 17 4 interpretation of the Ten Commandments. 34
interest of the state. 174 religious liberty. 463
justice, 173, 174 Sermon on the Mount. 34
public benefit. 173 Jhering. R. von
sense experience. 136 altruistic social levers. 159. 160
theory of knowledge, 363 classes of interests. 206
Hutchins. R. classi!lcalion of purposes. 162
consequences of judicial decisions on the social creator of the law. 157
interests, 212 disagreement with individualist utilitarianism. 155
interaction of interests. 212 egoistic levers. 159
moral norms. 70 individual and social interests. 156. 159
law of purpose. 157
-1- physical determinism. 157
social mechanics. 159
Iredell, T. (J) social utilitarianism. 157, 158
critique of regulatory use of natural law. 65
11 -K-
-J-
Kant. I.
James, W. accomplishment for jurisprudence. 142
pragmatism as a new way of thinking. 295 applicalion of principle of rightness. 136. 143
Jean, J. a posteriori knowledge. 136
interchange of virtues and vices. 72 a priori knowledge. 136. 140
basis for theory of law, 144
Jefferson. T. capacity of the human mind. 135
revolutionary response. 198 categorical imperative. 138. 141. 142
Jeremiah concept of reality. 135
religion of the heart. 41 conduct of lying. 140
uselessness of religious sacrifices. 41 critique of Hume's observalional knowledge. 136
faculties of human consciousness. 137
JESUS CHRIST
foundation of precepts or na tural la w. 137. 139
capital punishment. 32, 33
key in solving problem of the nature oflaw. 136. 137
divine law. 30, 34
key to solution of metaphysical problems . 135. 136
ethical ideal of brotherly love, 25
538 LEGAL PHILOSOPHY BIBUOCRAPHICAL INDEX 539

knowledge d erived from menlal cognilion, 137 Lasswell, H. D.


practical applicalion of pure knowledge. 135 concept of one world state. 494
precepls of the natural la w. 139, 144 critique of judicial legal realism, 434
principle of rightness. 137. 138, 139 critique of legal positivism. 434
right conduct. 140. 141 deference du e to human beings. 443. 487
sense experience. 138. 139 forms of authority, 440
telos of Lhe legal order, 137 human dignity. 450
theory of law. 144 immediate comforts-, 455
transcendenlal philosophy. 135. 146 interference vv-ith human dignity. 450
nature of law. 492
Kelsen, H.
policy science approach. 434
avoidance of personification of the state, 195
professed ends of democratic societies. 491. 492
concept of law. 187
world state and social values. 494
empiricaljus lice. 195
grandnorm. 190 Laurel. J.P. (J)
hierarchy of non-contradictory norms. 189 positive equality. 396. 478
Kant's accomplishment of jurisprudence. 142, 195 reality of socia l interests in the legal order. 227
normative legal order. 189 J social justice. 276
obedience to legal norms. 194
preservation of positive la w from politics. 189
/ Lincoln. A.
process of puriflca lion of concept oflaw, 187, 190
pure positive law concept. 186
reorientalion oflegal positiyism, 184
f government and s ocial values, 461
Lloyd, D.
anti-social tendencies, 228
separation of law and morals. 186. 187 Locke. J.
social. contentment. 195 basis of natural rights, 45
supreme poli lical superior. 196 revolutiona ry response to government abuses. 198
Kohler. J . J use of natural law. 45
withdrawa l of people's s upport from government. 45
ch anging conditions of limes. 168
ideal Lendencics of legal concepts . 169 Lundstedt. V.
Jura! postulales . 2 06 basis of legal ordering of society, 417
law and c ultu re. 206 critique of pure positive la w. 195
existence of rights, 321, 424
-L- feeling for justice. 417, 4 18
Labrador. A. (J) legal activities. 4 17
meaning of contemporary moral ethos, 251 legal ideology. 416
legal protection of right. 422
540 LEGAL PHILOSOPHY BIBLIOGRAPHICAL INDEX 541

objectivizing subjective ideas. 416 McDougal, M.


psychologica l legal realism, 417 achievement .o f social values in law. 437
social welfare. 418 bad decision. 493
Luther. M. concept of world slate, 494
use of na lural law, 44 critique of judicial legal realism, 434
critique of legal positivism, 434
Lysias deference to human beings, 443, 487
laws and lhe lawma kers, 100 direction of policy science jurisprudence, 437
exercise of governmental powers, 434, 436
-M- facts of control. 440
Maine. H.S. free sociely. 436
classification of p eople's jural materials, 80 human personality, 450
derivation of the law. 80 immediate comforts, 455
nature of law. 492
Makasiar, F. V. (C.J.) patterns of control, 492
positive law a nd na tural law, 60. 62 policy oriented approach. 434
Malcolm, G. (J) universal identification of social values. 436, 437
dangerous tendency rule, 13 Monstesquieu, C.L.
Marshall, J. (C .J.) foundation of functional jurisprudence, 205
judicial legal rea lis m. 298 law and social environment, 205
principle of separation of governmental powers.
Matthews, F. (J) 205
sovereignly. 128
Morris. C.
Marx. K. difference between Golden rule and categorical impe-
conllicl in contemporary liberal society. 165 ratives. 144
critical socia l realis m. 370
dialectic m a terialis m. 165 Morrison. W.L.
disench a ntment with domina nt liberal society. 370 history and jurisprudence. 5
eradication of liberal bourgeois social order, 370 Murphy, F. (J)
Mauricio. L. predeliclion for human rights. 347. 348
condition for doub le j eopardy. 24
-N-
Maurier. S.
satiric s an ction of mora l law. 70 Northrop. F. S. C.
factors emphasizing new jurisprudence. 430
542 LEGAL PHILOSOPHY BIBLIOGRAPHICAL INDEX 543
-0- Peckman, F. (J)
presentation of compe ling interests. 222
Olivecrona, K.
behavior patterns in law, 419 Pelagius
objeclivizing abstract values in law. 416 denial of doctrine of original sin, 123. 124
psychological connection in law., 424 Perfecto. G. (J)
reality of law as social fact. 419 capital punishment. 349
reality of jural relations. 424 human dignity, 449
Ortiz, F. metalegal stimuli. 337
revival of natural law theory. 77 predeliction for human rights. 347
Pierce, C. S .
-P-
pragmatism. 295
Paras, R. (C.J.) Plato
judicial facts, 319 basis for expedient and practical theory of law, 145,
Pascual. C. (J) 146
meaning of policy. 432 concept of justice. 110
policy science study of nature of law, 430 condition or social life. 107
seedbed of law, 81 critique or might as virtue. 107
development or natural law concept. 37, 38
Paton, G.W.
device for preserva lion of social peace. 111
fulfillment in law of the natural precepts, 106
dimensions or reality. 109
Patterson E. distinction between natural. and representational
opposition to regulatory use of natural law, 64 concepts of juslice. 37
use of .social interests. 292 doctrine of utilitarianism. 145
expedient theory of law. 145. 146
Paul, St.
foundations of philosphy. 149
capital punishment. 32. 33
good faith. 107
conscience guided by love and reason. 40
hierarchy of reality. I 09. 135
deepening of the natural law concept, 40
ideas, 110
enlightened conscience, 41
justice as the high est type of virtue. 107
imago Dei. 263
meaning or ideas. 109. 110
principle of equality. 39
natural la w as a discipline, 38
rejection of conscience guided by superstition and
peace and order. 111
custom, 40
prac tical theory or la w, 145
statement before the Council of Areopagus. 39
problem of the na ture of law, 106, 107
544 LEGAL PHILOSOPHY BIBLIOGRAPHICAL IN DEX

rationaljuslice. llO. lll. ll2 taming national poli ·1 ·s . 227


rectitude. 113 uses of natural law th ory. 43
starling point in the study of the nature of the law,
106
Powell, T.R.
metalegal stimuli. 337
Posner. R. A.
question as to the legitimacy of critical legal realism. Probert. W.
language and law, 3. 4
368
opposition to critical legal studies. 368 Puchta. G. F.
elements of folkway. 85
Pound, R.
absolute judgement, 219 PufTendorf. S.
assertion of social interests. 232, 234 use of natural law. 43
aberration of the liberal legal order. 372
background of functional jurisprudence. 207 -R-
core of functional jurisprudence. 213 Radbruch, C.
classification of individual interests. 231 form and content oflaw. 210
classification of public interests. 232 over-dependence on legal formalism. 220
classification of social interests. 234
critique of the folksoul. 95 Rawls, J.
doubt about Lhe idea of absolute judgement. 219 concept of equality. 478
fallacy of economic interpretation of law, Roguin, E.
jural postulates. 215. 217 pure juridical science. 185
juristic pessimism. 95 purification of positive law, 186
nationalism nol an important aspect of folksoul. 91
nature of law. 218 Ross. A.
objection Lo a law. 20, 47 critique of judicial legal realism. 415
pragma lie ethics. 230 psychological compulsion to obey law, 419
presentation of con1licling interests. 221 Rousseau. J . J.
principles dis tinguished from rules. 21 political ideal of the common weal. 26
protection of social institutions. 238 surrender of part of people's autonomy to the state,
respect for the law. 20. 47 26
revival of the natural law theory. 77
Rutherford, T.
skepticism about absolute judgement. 219
general meaning of law, 7
social engineering. 162. 219 . 220
types of legal non-deviation. 7
social interdependence. 212.
social interests. 217. 227. 232
546 LEGAL PHILOSOPHY BIBLIOGRAPHICAL INDEX 547

-s- Sophocles
Saarenpas. A. natural law. 37
opinion skeptics, 317 Spencer. H.
Salmond, J. . social statics. 28
law and its societal significance, 212, 213 Spinoza. B.
Savigny. K. F. von physical determinism. 157
death of law. 100 Stammler. R.
development of law, 77, 92 critique of Romanjurisprudents. 115
nature of law. 79 natural law with a variable content, 300
opposition of Roman law as basis for codification of relative justice. 171
civil laws of Germany. 80, 185 validity of human acts. 143
origin of law. 77
Stone. H. F. (C. J .)
programme of historical jurisprudence. 79
metalegal stimuli in the judicial prncess. 351
use of tradilional jural materials. 79. 80
voUcsgeisL, 79. 80 Stone, J.
abandonment of historical jurisprudence. 77
Schopenhauer. F.
judgement of justice, 220
principle of the will lo live. 146
legal realism and functional jurisprudence. 269,
Schwatz. L. 297
It
opinion sampling on community morals. 253 objection to legal positivism. 209
• perceptions of legal realists. 296
Socrates
absolute justice. 108, 112 value of social engineering. 220
causes of injustice. 108 Stumph. S.R.
concept of justice, 108, 111 separation of law and morals. 179
condition of social life, 107
considerations in the siudy of justice. 108 -T-
distinction between episleme and doxa. 108
Thibaut. A. F.
good faith. 107
codillcation of German civil laws on the basis of
knowledge of justice. 108
Roman law. 80
love of justice. 108
moral nature of man. 108 Tonybee. A. J .
nature of temperate person. 108 failure of Western civilization to pro.tect democracy.
problem of the nature of law. 4 246
seed of legal positivism. 171 general morality. 236
starling point in the study of the nature oflaw. 106
548 LEGAL PHILOSOPHY BIBLIOGRAPHICAL IN DEX 54
Traynor, R. Vinogradoff. P.
evaluating signiilcance of decisions as judicial pre- existence and d ev lopm nl of th · s la t . 04
cedents. 317 Vinson, F. (C. J .)
Tribe. L. background of clear a nd pres en t danger rule. 15
soulless concept of the rule oflaw. 381 relative na lure of clear a nd present danger rule. 171
relativity of all concepts . 170
Tushnet. M. threat lo community sa fely. 15
assessment of dominant liberal class. 373
Vishinsky. V.
Twining, W. L. law power. 167
jurisprudence as a discipline. 2
-W-
-U-
Warren. R. (C.J.)
Ulpian steering the la w. 34 7
concept ofjuslices. 127
Wesley. J.
Unger. R. M. eradication of evil of slavery. 438
critical legal realism. 44
critical social theory not leftist oriented. 371 West, C.
critique of liberal formalism. 384 scholars hip of crilical legal r ealism. 369
disenchantment with dominant liberal paradigm• . White. E .
370 question as to legitimacy of critica l legal realism.
generality-correcting Lask of the equal protection 368
clause, 411
Williams. G.
generality-requiring task of the equal protection
role of la n guage in law. 4
clause. 411
internal conrladiclions of legal reasoning, 384 Wittgenstein. L.
post-liberal social order. 404 language a nd Ia w . 4
public rotating fund. 408 Wright. Lord
zone of economic free will. 408
community cons cien ce. 23 2
socia l inler es ls . 232
-V-
Vecchio, G. -z-
Kant's accomplishment for jurisprudence, 142 Zeno
Villareal. A. (J) stoicis m. 38
no immediate decision rule. 15, 16
SUBJECT INDEX SUBJECT INDEX 551
(References are to Pages]
dHTerence with the Golden Concepts
Analytical Jurisprudence Rule, 144 see Legal Concepts
-A- ethical ought, 139. 140
see Positivist Jurisprudence Conduct
Abstract Law relationship with human
A Posteriori Knowledge consciousness. 140 forbearance. 8
composltlon. 19
meaning. 136 meaning. 140, 141 rule of action, 7
phUologlcal referents, 20
usage. 20 A Priori Knowledge Censorship Conference on Critical Legal
meaning. 136 meaning, 271 Studies
Absolute Judgment
national policy, 273 organization, 366
inconsistency with social Axlologic~l Criteria
engineering. 219 removal from concept of pure Check and Balance Conscience
positive.law, 186 Impasse In application, 404 enlightened type, 40,41
Absolute Justice
based on superstition or
ethical basis, 108 Civil Liberty
-B- custom, 40
moral excellence. 112 scope. 467
see Justice Bad Man Theory in Law reason for constitutional Conservation of Natural
see Rational Justice judicial legal realism, 303 guarantee, 467 Resources
concept. 259
Absolute Knowledge Basic Equality Civil Personality
eptsteme. 108 see Equality attributes, 233 Constructive Skeptics
distinguished from doxa. 108 distinguished from human realism in Jaw, 309
Beliefs personality. 233, 262 see Fact Skeptics
Academic Freedom Oblutiacs, 81
p,Jstfacto extension, 233 see Opinion Skeptics
adjunct to cultural progress.
pre facto extension, 233 see Rule Skeptics
271 -C-
authoritarian intervention. protection of individual Contemporary Liberal Legal
271 Capital Punishment interest, 233 Order
,, limitations, 272 biblical basis, 30 see Human Personality undesirable conditions,
religious Interference, heinous crimes, 30 372
Clear and Present Danager Rule
unfavorable climate, principle of forfeiture of life, background, 13
30 Critical Legal Realism
Adjective Law diverse reaction, 14 aberration of contemporary
kinds, 18 Case Law harmful speech, 131 liberal legal order. 372
relation to jurisprudence, 2 meaning, 13, 14 abuse of rule oflaw by liberal
Agape see Grave and Probable legal order, 376
redemptive love, 34 Categorical Egalitarianism Danger Rule analytical reasoning, 387
basic equality. 396
Altrulsllc Social Levers Code Commission basic equality, 396
see Equality
benevolent motives, 160 natural law theory, 45 bourgeois societies. 370
kinds, 160 Categorical Imperative check and balance. 404
a priori principle, 139 Collective Disadvantage collective disadvantage. 412
American Bar Association application in the legal order, corrective measure, 412 consent of the governed, 394
use of the natural Jaw theory. 138, 143 meaning, 412 contemporary liberal order,
47 criterion ofiight conduct. 140 372
Comprehensive Knowledge
critical social realism, 370
see Absolute Knowledge
critique of cynical type of
democracy. 395
552 LEGAL PHILOSOPHY SUBJECT INDEX 553
critique of idealist type of rule of law, 384, 475 Dicta Economic Interpretation of Law
democracy, 394 separation of governmental disowned by ratio decidendl. Imposed by dominant elitist
critique ofjudiclal legislation, powers. 388 318 class. 372
385 similarity between critical types, 318
decentralization of govern- legal realism and critical see Judex Dictwn Economic Liberty
ment, 404 social realism, 370 see Obiter Dictum meaning, 469
deconstruction of con tempo- socialist concept of law, 370 see Ratio Decidendt related to personal liberty.
rary liberal class, solidarity rights, 413 470
democratic republicanism, task of law schools, 367 Diligence
meaning. 21 Economic Progress
372 trashing dominant liberal factors, 276
denial of bourgeois liberal paradigm, 372 Divine Law freedom of enterprise, 276
order, 373 capital punishment, 32 national policies, 277
destabilization right. 410 Critical Legal Studies Movement
organization, 366 general sense, 29
disenchantment with doml- law of religious faith, 29, 30 Egoistic Social Levers
nant liberal paradigm. spread, 367 types, 159
Muslim tradition, 35
370 Cri tlcal Social Realism New Testament. 34 Elements of Law
dominant liberal paradigm, concept of law, 370 Old Testament, 30 concepts involved, 2
373 eradication of bourgeois lib- strict sense. 29
economic liberalism. 373 eral legal order, 370 see Jus Divinum Eminent Domain
elltlst concept of law, 370 see Ten Commandments social engineering, 220, 226
hostility of dominant liberal -D-
Dlwayan Empirical Justice
class. 370
Deconstruction see Folksoul meaning 42, 194. 195
judicial activism. 385
distinguished from deligiti- social contentment, 195
legitimacy questioned, 368 Domestic Institution
liberating function oflaw. 414 matlon, 371 Epiekeia
meaning, 371 national policies, 238
,, majoritarian rule, 394
Dominant Liberal Paradigm
fair equality. 112
market economy, 407 Deligltlmation sound sense of justice, 112
market rights, 413 meaning, 371 characteristics, 372
nature of law. 414 deconstruction, 371 Equality
not leftist oriented, 371 Democracy aspects, 475, 477
critique of idealist type. 393 Doxa balance before the law, 479
objections to critical legal distlngusied .from epistime,
realism, 370 critique of cynical type, 395 balance of opportunity, 484
types, 314 168 balance of rights and free-
objectivlsm, 383
orientation. 370 Due Process of Law doms, 485
Democratic Republicanism categorical egalitarianism,
organization of critical legal meaning. 398 impasse in implementation.
studies movement, 366 405 396
post-liberal social order, 403 concept, 396
political reasoning, 337 transforming dominant
post-liberal society, 403 constituent parts, 478
liberal social order, 398 -E-
reconstruction of system of distributive type, 481
rights, 408 Destabilization Right Economic Ideals downward levelling. 4 77
reorganization of market collective disadvantage, 414 concept. 29 equ a lizing pro~ess. 485
economy, 407 concept, 410 human dignity, 485
Economic Institution
resistance rights, 410 counterpart of equal protec- jural Inequality, 476
national policies. 243
revolving door concept. 382, tlon of law clause, 414 means of transforming doml-
nant liberal order, 396
383
554 LEGAL PHILOSOPHY SUBJECT INDEX 555
negative type. 475 elusive past events, 314 nature of the state. 92 aversion to teleological per-
positive aspect. 4 77 overemphasis on appellate obluttacs, 81 spective, 208
primal rights, 485 court decisions. 313 origin of law, 77 background of legal theory.
simple type, 479 trial court fact-finding. 313. value. 100 205
Stoic flavor. 474 314 see His tori cal Jurisprudence characterlsllcs. 200, 209
types of witnesses, 313 classification ofinterests. 206
Equal Protection of Law Folkway concept of law, 218
counterpart ofdestabilization Fairness composition. 85 consequence of decisions on
right. 411 meaning, 42 development, 86 social interests. 210, 212
Inadequate against collective distinguished from habits. 86
Fair Compe tition critique of teleological per--
tyranny, 44 enforcement. 86 spective, 208
concept. 21 nature, 86
Equality and Balance.-of Oppor- fundamental focus. 205
Fol kart source of law, 86 historical perspective crlU-
tunlty
affirmative policies. 484. composition, 90 Forbearance cized, 208
485 development. 91 meaning. 8 Inadequacy of natural law,
complicating aspects. 484 objects, 90 208
freedom of movement. 462 Formalism judicial legislation, 214
Folkdance see Legal Fom1alism
meaning. 484 characteristics, 89, 90 labels, 204
personal liberty, 463 nature. 89 Freedom of Conscience national policies. 213
limitation, 465 objection to legal positivism,
Ethical Constructs Folklore 209
religious scruples. 465
see Ethical Ideals beliefs and traditions. 82 philosophy ofsocial interests,
scope. 464
Ethical Ideals composition, 82 211
survival. 82 Freedom of Expression pragmatic ethics, 210
concept, 25
unrelated to belles-lettres, 82 clandestine expressions, 131 role of social Interests, 213
Ethical Relativity evaluative tests. 132. 133 shift in emphasis, 212
Ideal tendencies of legal Folksaylng not absolute, 487
composition, 83 social engineering. 213, 220
concepts, 168 peaceful picketing, 131 solcal interdependence. 212
relative justice. 168 nature, 83
stronger than Impressions, Freedom of Religion technique of adjusting con-
relallvltyofall concepts, 168 Ilicting interests. 219
84 legal equality of all religious
types, 83 groups. 466 use of social interests. 207
-F- value. 290
meaning. 466
Fact Discretion Folksong see Social Engineering
compos ition, 89 Freedom of Worship see Sociology of Law
excercise. 316
loca l accent. -89 meaning. 465
lack of means to measure
nature, 89 valid restrictions. 466 -G-
accuracy. 316. 317
Folksoul Functional Jurisprudence Gambling
Fact Skeplics
d evelopment of law, 77 adjustment of conflicting in- legalization, 210
cause of erroneous decis ions,
elements. 81 terests. 286 Tenth Commandment. 210
315
emergence. 80, 81 amoral nature of legal posi-
cause of legal uncertainly. General Ae&lhetics
historical reality. 91 tivlsm. 209
313 aspects. 210
los s of inlluence in jurlspru- approach to the problem of
correspondence ofsubjective basis, 285
· dence. 77 the nature of law. 6
facts lo objective facts. 314 ecological demands, 284
nature of law. 91

11
556 LECAL PHILOSOPHY SUBJECT INDEX 557
human capacity for aesthet- see Political Progress bas is of social interest. 264
ics, 283 Hedonism distinguis hed from civil per-
media, 284 General Security calculus of pains and pleas- sonalHy. 233, 246, 262
national policies. 285 aspects. 236 ures. 145 Interferences, 450
objective aspect, 284 basis of social interst. 236 coarse form, 14 6 na lional policies, 264
police power, 284 distinguished from individual moderate form. 145 religious basis, 262
social interest. 283 security, 235 utilitarianism, 147 social Interest, 262, 263
subjective aspect. 283 minimum content. 236 see Civil Personality
Heinous Crimes
national policies, 236
General Health principle of forfeiture of life, Human Resources
basis of social Interest. 261 General Will 32 basis of interest, 255
effects of decline Ln public concept. 26 emphasis, 254
Hierarchy of Reality national policies. 255
health, 260
Golden Rule see Reality social interest. 254
national policies, 261
physical conditions, 260 distinguished from categori-
Historical Jurisprudence Human Will
social interest. 260 cal Imperative, 143
approach to problem of the freedom from material things.
Good Faith nature or law, 6. 19 40
General Morals
concept, 23 bas is of legal theo1y. 80
ascertainment, 247, 248
condition of life in society, founder, 77 -1-
basis as a social Interest. 253
107 growth of the law. 79, 92
best guess approach, 249,
historical elemen t in law, 78, Ideals
250 Good-Man Theory 79 component of law, 20
Intuitive approach, 250 In legal realism, 303 historical solidarity, 93 types. 23
meaning, 253
Government law not universa l in scope,
national policies, 253 Ideal Tendency
characterislic of revolution- 80
not necessarily the best mo- ethical relativity. 168
ary response, 196. 197 nature of law, 91
rality, 247 primary desires. 168
electoral response to govern- obluliacs. 81
reflective ii'rtuilion, 250
mental challenge, 196 programme, 79 Imago Dei
social interest. 246 starting point in the study of concept, 262
General Progress Grand norm the nature of law, 77 human dignity, 262
basis of social interest, 270 concept. 190 state as the pe rsonification
objectivity, 190 of the folksoul. 92 Incentives
conditions, 269
cullural progress, 270 value. 100 meaning. 11
Grave and Probable Danger Rule measure of coercion, 196
difference with moral concept. 14, .15 vertical solidarity, 92
progress, 273 see Clear and Present Dan- Income
Human Consciousness
economic progress. 275 ger Rule aspects. 453, 454
facullies, 137. 146
forms, 270 conservation of natural re-
moral progress. 273 Great Commandment Human Freedom sources. 453
political progress, 273 concept. 34 Eplctetean conce pt. 39, 40 freedom from want, 453
social interest. 269 epitome of Christ's teachings, general form. 4 52
social value knowledge, 442 34 Human Nature
immecllale comforts. 455
viability of social institutions. reality of s in. 24 6
immecllale necessities, 454
269 -H- see Natura Hunwna
minimum, 455
see Cultural Progress
see Economic Progress Hard Cases Human Personality particular form, 454
see Moral Progress meaning. 315
11
558 LEGAL PHILOSOPHY SUBJECT INDEX 559
public interest context, 453 defende rs, 305 veto power over legislation, role in I.he I gal order, 213
savings. 455 detractors, 305 286 task ofjurisprudents. 214
social value, 452 equation of judic ia l legal re-
a lism, 360 Judicial Neutrality Jura! Relations
Individual Interests abdication, 388 basic type, 420
fact' skeplics, 313
meaning. 231 basis for analysis, 424
humanity of law, 300 Judicial Personality
protection, 233 critique by psychological le-
inte llectu al forbears, 298 metalegal stimuli, 319, 320, gal realists. 421
.Individualists Utilitarianism law not a syste m of reason. 346 objectivization 421
concept, 148 301
Judicial Policy Making reorientation of concept of
hedonisllc calculus. 149 life of the la w, 301 legal relations, 424
melalegal stimuli, 328 see Judicial Legislation
Intolerance types , 420
nature of law, 304, 360 Judicial Precedents
see Religious Libe rty rule s ke ptics, 310 Jurisprudence
conditions, 318, 323
Intuition seed of legal theory. 298 aversion to. 2. 3
acceptance by the public. 250 skeptic ism about trad!Uonal Judicial Process concerns. 2
distinguished from bes t theories of law. 299 formalist concept. 329 importance, 3
guess . 250 use of the te1m law, 305 hard cases, 315 schools. 6
meaning. 250 role of syllogis m. 302 scope of study. 2
Judicia l Legis lation metalegal stimuli. 330
reflective, 250 abdication of judicial neu - modern realist concept. 329 Juristic Ideals
trality, 388 concept. 23
-J- Jura! Inequality
abuse of detem1inate statu-
concept. 476 Jus Civile
Jud.ex Dictum tory text. 385
see Equality application,43
definition. 318 Aquinas· view, 288
u se of natural law, 43
disowned by the ratio Aris totle's view, 288 Jura! Law
dedde ndi, 318 avoidance of separation of abstract sense, 19 Jus Dlvinum
,. powers, 385 collective sense. 16 general sense. 29
Judicial Acllvis m c1ilique, 385, 386 known only to God. 124
particular sense. 11
see Judicial Legislation Cla nger of illegitimate deci-
s ion. 385 Jura! Postula tes Jus Gen!ium
Judicia l Coup d'Eta l application. 43
effect on analytical reason- basis, 214
possibility, 65 dis tinctive mark, 43
ing, 387 catalog, 215
Judicia l Discre tion exercise, 386 concrete scheme of social system of universal princi-
see Judicial Legis lation Holmes' view, 289 interes ts. 21 7 ples. 43. 44
inde terminacy of legal rules. guides to legal ordering. 213, Jus tice
Judicial Legal Realism
386 214.215. 217 absolute sense, 108
basis of reexaminalion of meaning, 214
concept of law, 299 mas k for molecular to molar empirical se nse, 112
molion.385 net work of na tion al policies. ethical virtue, 126
characteristics, 297 217
concept of law. 304 molar to molecular motion, fair equa lity. 112
385 not rules of la w, 214 feeling for wha t is best for
cons tructive s keptics, 309 pos t pone men t of recognition
critique of lega l pos itivism. molecular lo molar motion, s ociety, 130
384 of int erests. 2 13 juris tic norm. 126
297 principle of right. 214
critique of na tura l law. 298 objection lo use of dicta, 386 legal jus tice, 38
politica l reasoning. 390 reasona ble expecta tion of meaning. 4 2
defec t oflegQJ forma lis m, 302, society, 2 15
310 theo1y of problem solving. 387

11
560 LEGAL PHILOSOPHY SUBJECT INDEX 561
natural, 38 lex injusta non est lex. 48 distinguished from law of Legal Positivism
numerical, 113 pacta sunt servanda. 49 causality. 157 basis, 183
principal consideration, 108 ubi injuria ubi remedium. 59 external fulfillment. 158 characteristics, 178, 179
proportional, 113 volunte non fll injuria, 112 chargeofamorality. 184, 209
rational. 109 Legal Antipathies distinction between law and
relation to prudence. 118 Law meaning. 349 morals. 178, 188
see Absolute JusUce abstract sense. 19 essential attributes of law,
Legal Attitudes
see Practical Justice adjective. 18 198
rnetalegal factor in the judi-
see Rational Justice agreements. 12 evaluation of competing In-
cial process. 246
application. 129 terests. 194
-K- classification. 1 7 Legal Cleansing grandnorm, 190
collective sense. 16 meaning. I 21 normativeness of law, 189,
Knowledge compulsive element. 116 191
a posteriori. 135 Legal Concept
concept.. 122. 124. 126 nurtured by dominant lib-
apriori. 135, 136
elements of law, 2
demise, 92, 100 eral class, 373
derivation from mental cog- meaning. 21
development. 77 opposition to natural law, 60,
nition. 137 role lh the legal order. 21
divine, 29 65
functions. 446 economic interpretation, 372 Legal Facts pure positive law theory. 183
ignorance. 443 expedient theory, 145 meaning. 314, 315 seed, 177
lack of enlightenment. 443 formalist concept. 329 separation of law and mor-
purposive aspect. 444 general meaning. 7 Legal Formalism
concept. 329, 384 als. 178
relation to general progress. histo1ical element. 78 stale, 196
44_3, 446 ideals. 23 critique. 310, 384
face ts. 329 sovereign. command and
right to private judgment, 444 Immutability. 129 sanction, 183
social imbecility. 445 Indigenous. 80 naivete. 302
social value, 442. 444 jural, 11 Legu 1 Ideology Legal Precepts
,. see Episteme liberating function. 414 bs trnct Ideas. 415, 416. 4 I 7 concept. 20
link with language. 4. 66 b SI<' myth lnjurisprudence, legal concepts, 21
-L- moral. 69 II J • legal principles, 21
natural, 36, 123 legal standards. 21
Lacunae Lc-gnl l1H·1·11llv ·s
nonjural. 28 Legal Principles
judicial legislation. 385 uw 11 1li11(. I I , 12
nom1a live nature. 189 application. 129
legislative enactments, 66
order of sequence. 8 Leg d Olljc·c llv l:1111 concept. 21
Laissez-faire Theo1y particular sense, I I t 'OI 11 ·rp (, ' Ill: I
meaning. 28 physical, 73 <· dllq111•, ' Ill. I
Legal Realist Perspective
points of nondeviation, 9 approach to problem of the
Latin Maxims Legal 01 cl1•1 nature of law, 6
practica l theory. I 45
a equilas est coTTeclio legis c·1·1d1 11 tlw1111 , ' '1 distinct juristic school, 297
remedial, 18
genera liter lalae qua parli l111p1 11Vt 1111 111 , I labels. 295
rule of action. 7
deficit. 68 special. 19 llll' Hllilll' , 'I mctalegal stimuli In the judi-
cons tans el pe1petua volunlas cial process, 335
substantive, I 7 Leg. 1 Phll11 .111il1y
ius suum cuiqui lribuere. typ ·s. 297
type of la nguage. 9 av1·1 11111 111 lli1 1'1 111 llt 11
127 1·t· ons truclive Skeptics
juranaturae sunl immutabilia ii ( j I '
lllltidt
Law of Purpose 11· C 1 ll ical Legal Realism
el leges Legum, 50 study ol I.1 v, ''
concept of "for a", 157 t 1• 1'1 .11rm, li m
562 LEGAL PHILOSOPHY SUBJECT INDEX 563
see Psychological Legal Re- constituent parts, 461 predlspositional types. 342 -N-
alism economic type, 469 role In the judicial process.
see Social Legal Realism 334
Natlonal Liberty
forms. 460
types, 342 myth of absolute Independ-
governmental interference,
Legal Reasoning ence, 471 ~
460
critique , 387 Metamaterialism new concept, 4 71
national type, 471
meaning. 40 policy science viewpoint, 4 72
Legal Rules personal type, 462
toning down of national ego,
indctermin:H:y, 386 polilical type, 468 Modern Legal Realism
472
meaning. 20 procedural type. 458, 459 label, 295
religious type. see Legal Realist Perspective National Polley
Legal Sanction substantive aspect, formation. 230. 231
meaning, 12 Molar to Molecular Motion meaning. 232
-M-
judicial activism, 304. 340,
Legal Sociology 385 Natura Humana
thesis, 204 Majorilarian Rule dimensions, 233, 24q
see Sociology of Law abuse, 394 Molecular to Molar Motion distinguished from human
grounds for condemnation, nature, 233, 246, 262
Legal Standards Markel Economy 386
application. 21 essense. 262
access lo social capital. 407 illegal judicial activities .. 385
function. 21 human personality, 233, 262
Interests in economic
meaning, 21 progress, 408 Moral Law
Natural Law
reorganization. 407, 408 binding nature, 69 classical theory, 36
Legal Sympathies dlfTerent from divine law. 71
meaning. 346 concept. 36, 42
Market Right distinguished from social
metalegal factor in the judi- essential matters. 42
concept. 413 norms. 71
cial process. 346 function In the legal order,
social capital. 413 ethical foundation. 69 43
Legal Theo1y genesis, 69 ground for regulatory use,
Material Facts
scope. 2 nonjural in nature, 69 44,54
distinguished from raw facts,
see Jurisprudence norms ofhuman conduct. 70
319 higher law, 38
similarity with divine law. 71 historical background, 36
Legislation meaning. 320
indeterminacy, 386 Moral Norms interpretative use. 66
Mechanical Jurisprudence characteristics. 70 justificatory use, 43
see Judicial Legislation see Legal Fonnalism nature, 69 judicial coup d'etat, 65
Lex Injusta non est Lex Meliorism social approbation. 70 man's partlcip·1tlon in divine
see Lalin Maxims concept, 111 social reprobation, 70 law. 40
Liberal Formalism ethical principle, 111 appositive u~~. 46
critique, 319 Metalegal Stimuli Moral Progress precepts, 42 106, 121. 124,
Liberal Legal Order effect on the Judiclal process, basis, 274 125, 137, 139, 142
deconslruc:t ion. 372 334 distinguished from general regulatory us'.!, 48
transformation, 396 environmental types, 342 morals. 273 renaissance, 77
influence on lhe judicial national policies. 275
Liberty Natural Obligations
personality. 330 role ofenlightened individual,
acllve form. 460 based on natural law, 45
modern realist concept. 336, 171
civil type , 467 338 social Interest. 273 Natural Resources
conditions for stability, 4 73, not undue matlers. 336, 341 basis as a soclallnterest, 258
474
564 LECAL PHILOSOPHY SuDJECT INDEX 565
charactertsllcs, 258 Old Testament tests for validity, 132 crlllqu · of 1 gal p ltlvl m,
conservation, 257 divine law, 30 433
ecological quesllon, 257 Ten Commandments, 30 Personal Liberty dlrcct1011 oflnquli:y, 435. 437
kinds, 257 aspects, 462, 463 equa lity, 474
Opinion Skeptics denial of right, 462
national policies. 258 factors underlying policy
court opinions as sources of freedom of movement, 462 oriented approach, 432
social Interest. 257
law, 318 natural right, 462 goal. 435, 493
Nature of Law judicial precedent. 318 zero point of slave1y, 462 income. 452
questions Involved, 2, 4 molar to molecular motion, knowledge, 442
319 Philosophy of Law
Necessary Labor relation to Jurisprudence, 2 liberty, 457
molecular to molar motion, nature of law, 491
meaning, 401 319 Physical Determinism policy, 432
Necessary Value ratio decidendl. 318 meaning, 157 policy process, 438
meaning, 401 trouble&ome aspects of deci- relation to human conduct, power, 440
sion making. 31 7 157 problem, 429
Negligence
concept. 22 Ordered Liberty Physical ~aw respect, 447
application, 24 characteristics, 73 safety, 455
New Testament jurtsllc ideal. 23 modus operandi, 7 4 social values, 439
divine law. 30 nonjural nature, 73 thrust. 428. 436
Great Commandment, 34 Orders of Sequence universal identification of
orders of sequence, 73
Sermon on the Mount, 34 absoluteness. 4 social values, 436
similarity with divine law, 75
characteristics, 4. 73 see Policy Process
No Immediate Decision Rule classification, 9 Polley
juristic opinion, 15 disllnguished from rules of meaning, 432 Political Ideals
meaning, 16 action, 9 meaning. 26
Immutability, 8 Policy Process
Nonjural Law Implementation of social Political Insutullons
types, 28 meaning. 8 national policies, 242
points of nondevlatlon, 9 values, 439
value clarification. 438, 439 stability, 241
Normative Legal Order uniformilyofphysical nature.
meaning. 189 8 Policy Science Political Liberty
violations, 8 direction of study. 436 balance of political power,
-0- 468
Orthodox Socialism s tudy of social values, 435
minimum content. 468
Obiter Dictum disenchantment with liberal Polley Science Juris prudence physical condition, 468
definition, 318 social order, 370 advocacy ofsocial values, 436 public opinion, 468
disowned by the ratio eradication of bourgeois so- alternative methods of for- Political Progress
decidendl. 318 ciety. 370 mulating policies, 434 accurate information, 281
Oblutiacs approach to study of the na- basis, 281
importance In legal histoi:y. -P- ture of law, 7, 429 cond illons. 281
81 Peaceful Picketing basic social values, 439 national policies, 281
meaning. 81 characteristics . 432, 433 social value, 280
freedom of speech. 131
seedbed of the folksoul. 81 concerns, 429, 430
means of communicating Populis t Democracy
source ofjural and non-jural critique of judicial legal real-
facts of a labor dispute, crit ique , 393
materials, 81 ism, 433. 434
131
566 LEGAL P1 llLOSOPHY SuOJECT INDEX 567
Pornography reorganization of market Principle of Rightness nature of law, 417, 419
hardcore, 254 economy, 407 application in the legal order, reality of law, 418. 419
137, 143 values objecllvize in law, 416
Positive Law Power free will, 138
binding force, 183 aspects, 441 meaning, 137 Public Law
distinction between law and concept as a social value, 440 types, 17
precepts of natural law, 137,
morals, 178, 182 facts of control, 440 138 Pure Positive Law Theory
validity. 181 forms of authority, 440
empirical justice, 194
Principles
Positivist Jurisprudence Pracllcal Justice legal lineage, 140
see Legal Principles
analytical technique, 177 epiekeia, 112 normative nature oflaw, 189
approach to the problem of meaning, 112, 113 Prior Censorship purification process, 189
the nature of law, 6 numerical, 113 see Censorship reorientation of legal positiv-
aversion to natural law proportional, 113 is m, 184
Private Law separation of law from axi-
theory, 178, 182 sound sense concept, 112
types, 17 ological positivism, 184
binding nature of Jaw, 183 see Absolute Justice
characteristics, 178, 179 see Justice Profit types, 184, 185
charge of amorality, 183 see Rallonal Justice see Surplus Revenue
Pure Profits
concept of law, 6, 183
Pragmatic Ethics Protestant Refonnation see Surplus Revenue
criterion of legality,
critique of teleological con- meaning. 211, 230 rise of nationalism. 44
use of natural law, 44 -Q-
cept of law, 179 Pragmatic Jurisprudence
decentralization of govern- label, 295 Prudence Quran
ment. 404 see Legal Realist Perspective meaning, 118 divine law, 35
distinction between law and legal application. 118 similarities with the Bible,
morals, 182 Pragmallsm 35
relation to jus tice, 118. 119
exercise of governmental influence on legal philoso-
powers, 193, 196 phy, 296 Public Interests -R-
Irrelevance of metaphysical means of settling conflicts of classes, 232
concepts, 182 interests, 296 meaning, 232 Ratio Decidendi
labels, 177 method of analysis, 296 fun ction. 360
rejeclion of abstract concepts. Psychological Legal Realism meaning, 318
seed of legal posillvlsm, 177 basis of legal order, 417
separation of law and mor- 296 molar lo molecular motion,
theo1y of knowledge, 296 bindingforceoflaw, 418, 419 360
als, 178 critique of abstract values,
supreme political superior, molecular to molar motion,
Precepts 415
176 319
component of law, 20 critique ofjuclicia l legal real-
see Legal PoslUvism scope, 20 ism, 415
see Pure Positive Law Rational Justice
types, 20 critique of social e ngineer- concept, 109, 111
Post-Liberal Social Order ing. 4 19 effect of meliorism , 111
Principle of Forfeiture of Life
decentralization of govern- founder. 414 see Absolute Justice
concept, 33
ment, 404 juralrelations. 418, 423, 424 see Justice
prime considerations, 404 Principle of Iden lily legal ac tivities, 41 7
reconstruction of system of meaning, 168 legal ideology. 416, 4 l 7 Rational Soul
rights. 408 purpose, 163 merit of judicial legal real- fulfilled reality. 11 5
ism . 415
568 LEGAL P1 JJLOSOPl-IY SUBJECT INDEX 569
Realist Jurisprudence Respect Rules of Action Separalion of Powers
approach to lhe study of the aspects, 448 classification, 7 judicial legislation, 381, 385
nature of law, 7 derogatory acts, 449 distinguished from orders of jurisprudential problem, 381
see Legal Realist Perspective interference, 450 sequence, 8 masking of principle. 382,
meaning, 447 meaning, 7 383
Reality negative phase, 450 points of nondevialion, 9 politization oflegal order, 382
concept. 135 policy functions , 450 repeal, 8 purpose, 382
types. 119 posilive phase. 448 sanctions,8 revolving door practice, 382
Reconstrucllon of System of violallons, 8
Revolution Sermon on the Mount
Rights peaceable type. 196 capital punishment, 33
destabilization right. 410 -S-
rebellion, 197 Golden Rule. 143
inadequacy of contemporary
uprooling type. 196 Safety
system. 408 aspects, 456 Social Advantage
market right. 413 Revolving Door Practice attainment. 323, 325
peace and order. 457
resistance right. 410 meaning. 382 protection. 456 concept, 320
solidarity right. 413 public health, 456 role in decision-making. 324
Right Reason
social security, 457 validity of premises, 320
Religious Ins titution meaning. 125
essence ofreliglous faith. 239 norm of conduct. 125 Social Capital
Sanctions
national policies, 239 precepts of natural law. 125 distinguished from other
definition, 12
sophla, 125 capital resources, 413
Religious Interference measures of coercion, 192
meaning. 407, 408
nature, 271 Righteousness satiric type. 70
meaning. 42 Social Engineering
Religious Intoleran ce Scandinavian Studies in Law
publications, 415 factors, 219
non-separa tion of church and Rule judicial action, 214
state. 463 see Lega l Rules
Schools of Jurisprudence judgment of justice, 220
Religious Libe rty Rule of Law differences in perspeclives. 6 objective, 219
aspects. 464 abuse by libe ral legal order. presentation of conflicting
Sense Experience interests, 221. 222
background, 463 375. 377 a posteriori knowledge. 135
biblical basis. 463. 464 meaning. 375 process. 213
construclion of concepts
blurred aspec t. 464 prestine form, 114, 375 sanctions. 221
through observalion, .135, skeplicism about absolute
freedom of conscie nce, 464 purposive element. 376
136
freedom of religion , 466 regnum. 376 judgment, 219
experiential knowledge, 136 technique, 213, 219
freedom of wors hip. 465
Rule Skeptics see Social Mechanics
intole rance. 463 Separate But Equal Fomrnla
civilized administration of
slate ne utrality. 464 Iniquitous nature, 480
jus tice , 311 Social Inslitulions
critique of legal formalism. bas is of social Interests, 238
Religious Tolerance Separallon of Church and Slate classes, 238, 239, 241. 243
310
stale ne utrality. 4 63 anti-establishment clause. national policies. 238, 240,
myth ofinfalliabililyofrules.
463 242, .244
Remedial Law 310, 311 biblical basis. 463
types. 18 rules as sources of law. 312 reciprocal nature. 463 Social Interests
slavis h reliance on legal rules. stale neutrality. 464 agency for adjustment of
Resis tance Righ t 3 11. 384
concept. 4 IO conflicting Interests, 286
570 LEGAL PHILOSOPHY SUBJECT INDEX l>71

assertion, 232 Social Ulilitarianism Statutes I b ·ls, lOG


essence, 2~2 basic principles, 155, 157 tmprobabllityofbeing unjus t, n tur ll~w.106
formation, 231 interests of society. 162 180 precepts of natural law. l 0
guides to legal ordering. 213 law of purpose, 157 prudence andjustlc . 118.
Statutory Construction 119
meaning. 232 realization of individual in- use of natural law, 67 telos, 6, 105
protection, 220, 235 terests, 158
reality. 227 social levers, 159, 160 Statutory Text theological supplement, 122
use, 227. 228 see Utilitarianism abuse, 385 sophia. 125
Social Legal Reallsm Social Values Stoics Ten Commandments
application of law. 366 achievement, 435 outlook on life, 38 capital punishment, 32
development of th'e law, 363 basic types, 439 philosophy. 39 epitome of duties to God, 30
disagreement with natural implementation, 439 interpretations by Jesus
law theory. 364
end of law, 365
universal identification, 436,
437
. Study of Jurisprudence
aversion. 3
Christ, 30, 34
nature, 30
life of the law, 363 Substantive. Law secular significance, 30
source of law, 364 Sociological Jurisprudence
types. 17 1Tanscendental Idealism
see Functional Jurispru-
Social Levers dence Supreme Polillcal Superior categorical imperative, 138
types, 159 concept, 196 meaning. 135
Sociology of Law princi pie of rightness, 137
Social Life governmental challenge, 196
thesis, 204
basis of social interest, 268 Surplus Labor -U-
desire for stable existence, Solidarity Rights
meaning, 40 l
269 concept. 264 Utilitarianism
essence, 268 Surplus Revenue a pplica lion in the legal order,
Sophia
expectation of social con- equitable distribution, 401 153
see Right Reason
tentment. 266 meaning. 401 coarse form, 146
fair equality, 269 So4l critique of transcendental
System of Rights
implication, 269 types, 115 idealism, 146
avid property protection, 408
national policies, 269 see Folksoul foundation, 146
reconstruction, 408
social interes ts . 266 Sound Sense Justice hedonistic calculus. 145
-T- individualist utilitarianism,
Social Mechanics. 160 meaning. 112
147
altruistic levers, 159 Sove reignly Teleological Jurisprudence legislation, 153
egoistic levers, 159 nature, 128 approach to problem of the meaning. 139, 140
meaning, 159 nature of law. 6 measure of.utility, 149
see Social Engineering Special Law basis, 106 moderate form, 145
types. 19 completeness of the legal or- social utilitarianism, 155
Social Norms Standards der, 106 stages. 147
distinguished from moral see Legal Standards ethical relativity. 168 theory of good, 146
norms, 71 good faith as condition oflife, see Individualist Utilitarian-
relative nature. 72 Stale 107 ism
scope. 72 interest in law and order, 437 justice, 108, 109, 111 see Sooial Utilitarianism
interest in war, 437, 438
Social Statics policy science concept. 438
theory. 28

1/
572 LECJ\L PHILOSOPHY

-V- Will lo Live


desire lo overcome pain, 146
Volksgeist
see Folksoul -Y-
-W- Yale Approach
see Polley Science Jurispru-
Word Magic dence
objectivlzing abstract values.
416

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