Philosophy of Law Pointers PDF

Philosophy of Law Research of Atty. Bernardo M. Luceres Pointers: 1. Define philosophy of law. Philosophy of Law (also called jurisprudence), branch of philosophy that investigates the nature of law, especially in its relation to human values, attitudes, pract...

Philosophy of Law Research of Atty. Bernardo M. Luceres Pointers: 1. Define philosophy of law. Philosophy of Law (also called jurisprudence), branch of philosophy that investigates the nature of law, especially in its relation to human values, attitudes, practices, and political communities. Traditionally, philosophy of law proceeds by articulating and defending propositions about law that are general and abstract x x x. Philosophy of law often aims to distinguish law from other systems of norms, such as morality (see ethics) or other social conventions. 2. What is the oldest law? Explain this law. Oldest law. The Code of Ur-Nammu (c. 2100-2050 BCE) is the oldest extant (existing, present, living) law code in the world. “Ur-Nammu” presenting himself as the father of his people, encouraged his subjects to think of themselves as one family and of his laws as the rules of a home. Punishments, except for capital offenses, took the form of fines in the same way a child might be deprived of a favorite pastime or toy for misbehaving. Ur-Nammu issued the code with the understanding that his people knew how to treat each other with respect and a fine for lapses would serve as a reminder. 3. What is the second oldest law? Explain this. Second oldest law. The Code of Hammurabi was a set of 282 laws inscribed in stone by the Babylonian king Hammurabi (r. 1795-1750 BCE) who conquered and then ruled ancient Mesopotamia (now Iraq). The laws address business contracts and proper prices for goods as well as family and criminal law. Every crime inscribed on the stele is followed by the punishment to be inflicted. No one could claim they were ignorant of the law as the over seven-foot-tall stele was erected publicly. At the top, it was engraved with an image of Shamash, the god of justice, handing the laws to Hammurabi and the following text makes clear that these are laws of the gods, not arbitrary rules created by mortals. 4. Write the Golden rule, the Silver rule, and the Bronze rule. 5. Sharia stands for what? Sharia stands for Islamic or sacred law. It is an Arabic word meaning “the way” or “the path to water.”  6. Law is necessarily subject to a procedural morality consisting of eight principles. What are these 8 principles? 1. the rules must be expressed in general terms; 2. the rules must be publicly promulgated; 3. the rules must be prospective in effect; 4. the rules must be expressed in understandable terms; 5. the rules must be consistent with one another; 6. the rules must not require conduct beyond the powers of the affected parties; 7. the rules must not be changed so frequently that the subject cannot rely on them; and 8. the rules must be administered in a manner consistent with their wording. 7. Write the three (3) types of secondary rules that mark the transition from primitive forms of law to full-blown legal systems. (1) the rule of recognition, which “specif[ies] some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” (Hart 1994, p. 92); (2) the rule of change, which enables a society to add, remove, and modify valid rules; and (3) the rule of adjudication, which provides a mechanism for determining whether a valid rule has been violated. In Hart's view, then, every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal validity that include provisions for making, changing and adjudicating law. (Hart 1994, p. 107). 8. Discuss the Legal Moralism Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society’s collective moral judgments even when those behaviors do not result in physical or psychological harm to others (to legislate against same-sex marriage),. According to this view, a person’s freedom can legitimately be restricted simply because it conflicts with society’s collective morality; thus, legal moralism implies that it is permissible for the state to use its coercive power to enforce society’s collective morality. 9. What is the separation of the Church and the State? The government cannot establish a national religion funded by the taxpayers. 9a. What is the constitutional basis for that? SECTION 6. The separation of Church and State shall be inviolable. (Article II, Section 6 Phil Consti.  SECTION 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. (Article III, Section 5, Phil. Consti). 9b. What is the philosophy of the above provisions? Ans. 1. A society should not be forced to worship the God of one particular religion, which is to create a theocracy as to compare it to democracy. 2. To protect religions from government interference or discrimination. “Religion is a matter which lies solely between man and his/her God, [and] he/she owes account to none other for his faith or his worship.” 3. “Rebellion to Tyrants is Obedience to God.” Q. What may be your basis to support the position of allowing same sex marriage? A. The PREAMBLE. We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution. Love and equality. Different people have different loves. If this love is not respected the principle of equality is desecrated. A. No mentions in the Constitution particularly in Article XV – “The Family” prohibiting the union of same sex. The Constitution is the fundamental law of the land. The meaning of marriage in the Family Code can be redefined. ARTICLE XV The Family SECTION 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. SECTION 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. SECTION 3. The State shall defend: (1) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; (2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development; (3) The right of the family to a family living wage and income; and (4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them. SECTION 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security. Justifications for punishment typically take five forms: (1) retributive; (2) deterrence; (3) preventive; (4) rehabilitative; and (5) restitutionary. 1. According to the retributive justification, what justifies punishing a person is that she committed an offense that deserves the punishment. On this view, it is morally appropriate that a person who has committed a wrongful act should suffer in proportion to the magnitude of her wrongdoing. 2. According to the deterrence justification, punishment of a wrongdoer is justified by the socially beneficial effects that it has on other persons. On this view, punishment deters wrongdoing by persons who would otherwise commit wrongful acts. The problem with the deterrence theory is that it justifies punishment of one person on the strength of the effects that it has on other persons. The idea that it is permissible to deliberately inflict discomfort on one person because doing so may have beneficial effects on the behavior of other persons appears inconsistent with the Kantian principle that it is wrong to use people as mere means. 3. The preventive justification argues that incarcerating a person for wrongful acts is justified insofar as it prevents that person from committing wrongful acts against society during the period of incarceration. 4. The rehabilitative justification argues that punishment is justified in virtue of the effect that it has on the moral character of the offender. Each of these justifications suffers from the same flaw: prevention of crime and rehabilitation of the offender can be achieved without the deliberate infliction of discomfort that constitutes punishment. For example, prevention of crime might require detaining the offender, but it does not require detention in an environment that is as unpleasant as those typically found in prisons. 5. The restitutionary justification focuses on the effect of the offender’s wrongful act on the victim. Other theories of punishment conceptualize the wrongful act as an offense against society; the restitutionary theory sees wrongdoing as an offense against the victim. Thus, on this view, the principal purpose of punishment must be to make the victim whole to the extent that this can be done: “The point is not that the offender deserves to suffer; it is rather that the offended party desires compensation” (Barnett 1977, p. 289). Accordingly, a criminal convicted of wrongdoing should be sentenced to compensate her victim in proportion to the victim’s loss. The problem with the restitutionary theory is that it fails to distinguish between compensation and punishment. Compensatory objectives focus on the victim, while punitive objectives focus on the offender.