LPS 3104 Legal Philosophy and Ethical Practice Pre-Midterm Notes PDF

LPS 3104: Legal Philosophy and Ethical Practice Atty. Alajas | Pre-Midterm Notes | 1st Semester MODULE 1: Introduction to Legal Philosophy ➔ Pythagoras of Samos, Greek phil...

LPS 3104: Legal Philosophy and Ethical Practice Atty. Alajas | Pre-Midterm Notes | 1st Semester MODULE 1: Introduction to Legal Philosophy ➔ Pythagoras of Samos, Greek philosopher and mathematician I. The Crazy LAW and I “Sophia” meant the “knowledge of the What is LAW? underlying reasons or causes for things as they appear to us, knowing the reasons why a thing ➔ Rule of conduct, just, obligatory, formulated by is what it is” legitimate power for the common observance and benefit. ➔ Robert Browning, an English poet and playwright. ➔ According to Marcus Tullius Cicero, a Roman Stateman, Lawyer, Scholar, Philosopher, Writer and “Philosophy is the search for meaning”. Academic Skeptics: ➔ Fr. Ranhilio Aquino, Eminent Filipino Legal Philosopher Law is… It is a “knowledge of things by their ultimate causes or reasons” ➔ a natural force, the highest reason, one “implanted in nature, which commands what ought to be done and USES OF PHILOSOPHY forbids the opposite ➔ the mind and reason of the intelligent man whose DEEPER UNDERSTANDING and WISDOM natural function is to command right forbid wrongdoing. II. Legal Philosophy Definition of Thomas Aquinas LEGAL PHILOSOPHY is a systematic study that: 1. seeks to understand the nature and essence of law For Thomas Aquinas, an Italian Dominican friar and priest, an 2. its definition and elements influential philosopher and theologian: 3. the sources of its authority 4. its various applications and development ➔ a rule and measure of human acts pertaining to reason 5. its role in society ➔ in all those things that are inclined to something Definition of Nilo vs. Court of Appeals, 128 SCRA 524 COMPONENTS OF LEGAL PHILOSOPHY ANALYTICAL JURISPRUDENCE — identifies the fundamental LAW is a “rule established to guide our actions with no binding components of law in an effort to describe what it is and what it effect until it is enacted, thus, it has no application to past times is not. but only to future time.” NORMATIVE JURISPRUDENCE — investigates both the Definition of Lapitan vs.Philippine Charity Sweepstakes Office non-legal norms that shape law and the legal norms that are generated by law as guide to human action. ➔ in its general and abstract sense: “The science of moral laws founded on the rational nature of man that II. Legal Theories governs his free activity for the realization of the individual and societal ends of life” 1. The Teleological or Natural Law Theory ➔ in its specific and concrete sense: “it a rule of conduct, 2. The Positivist Theory just, obligatory formulated by legitimate power for 3. The Interpretivist or Constructivist Theory common observance and benefit” 4. The Realist Theory 5. The Critical Theory What is PHILOSOPHY? The Teleological or Natural Law Theory ➔ Philosophia — philos, ‘love’, or philia, ‘friendship’ ‘affection’, affinity for’ ‘attraction toward’. “GOING NATURAL” ➔ It seeks to discover the essence, nature and foundation of things as opposed to their appearance. It is the “Do to others whatever you would like them to do unto you. This is search for the reality and truth of things. the essence of all that is taught in the law and the prophets.  — (I Matthew 7- 12) "Before we come to the individual laws, let us look at the character and nature of law, for fear that, though it must be the According to Natural Law, nature is how people normally standard to which we refer everything, we may now and then be behave and are expected to behave and are expected to led astray by an incorrect use of terms, and forget the rational behave. principles on which our laws must be based...." The Positivist or Command Theory — Cicero, The Laws “THE LAW SAYS SO” I. LAW AS RULES AND PROCESS “SO LET IT BE WRITTEN. SO LET IT BE DONE” A. LAW AS RULES Positivists are positive on what the law posits by the authority Common Misconception of Law? given to the State or by socially accepted rules. ➔ A common misconception of law is it is but a set of The Interpretivist or Constructivist Theory rules and that when dispute arises, all a judge does is find the right rule and apply it mechanically, even “THE SPIRIT OF THE LAW” ruthlessly. This is how formalists regard law. This definition had come under severe criticism. “The judge is nothing but the law speaking” ➔ Some feel it is a reductionistic, i.e. simplistic, way of — Benjamin Whichcote, Moral and Religious Aphorisms looking at law as it fails to take in account the totality and social context of the law. Interpretivist points that the law is more than explicitly adopted ➔ In other words, it looks at law as rules and fails to rules and has merits and principles that can be interpreted or consider the deeper human or social factors why constructed by the courts to contribute to the growth of law. people violate the law, and the impact of the violation on the victim, the larger society as well as the offender. The Realist Theory Another criticism of the law as rules' approach “GET REAL” ➔ Another criticism of the law as rules' approach is it “The Law, wherein, as in a magic mirror, we see reflected, not only merely caters to efficiency e.g. quick disposal of cases our own lives, but the lives of all men that have been! When I think from the court dockets. of this majestic theme, my eyes dazzle.” ➔ That it is dismissive of the other aspects of human — Olive Wendell Holmes, Jr. Speech to the Suffolk Country Bar experience; that it does not factor in the relationship of the litigants. Realists focus on human realities that are often overlooked by ➔ That it only gives a superficial treatment of the hard law, technicalities and abstract policies. problems and does not ask the larger causalities why legal issues had arisen in the first place. The Critical Theory William O. Douglas (1898-1980) “LAW OF THE STATUS QUO” ➔ As William O. Douglas (1898-1980) wrote: "[t]he law is “In a capitalist society, individuals are controlled by a pitiless law not a series of calculating machines where definitions usually beyond their comprehension. The alienated human and answers come tumbling out when the right levers specimen is tied to society as a whole by an invisible umbilical are pushed." cord: the law of value.” ➔ Justice Douglas, himself a recipient of life's miseries and deprivations who as a student worked on odd jobs — Che Guevarra, Man and Socialism in Cuba as waiter, janitor, and cherry picker, was quoted to have said: 'I worked among the very, very poor, the migrant This theory explains that the law has been the means to laborers, the Chicanos and the I.W.W's who I saw being enshrine and correctively impose the wishes of the dominant shot at by the police. I saw cruelty and hardness, and group or institutions. my impulse was to be a force in other developments in the law.' MODULE 2: Crash Landing on Law and Its Nature Chapter 2: Nature of Law Anatole France obedience is anchored on man's freedom and free will. Kant calls this law in the sphere of freedom. ➔ Indeed, while the constitution mandates 'equal protection of the laws' this did not prevent 19th century B. GENERALITY French satirist Anatole France from observing that: ➔ The principle of generality sees laws as 'generally’ "[t]he law in its majestic equality forbids the rich as rather than 'particularly' framed. well as the poor to sleep under bridges, to beg in the ➔ The rules mandating cars to stop at a red light or streets, and to steal bread." prohibiting speed beyond a limit applies to all and B. LAW AS PROCESS without exception. The law would not focus on particular drivers, ➔ Law may also be regarded as a process, the rules being driving particular cars under particular merely an aspect of the process. circumstances. ➔ Laws are not just statutes per se but the whole gamut The law applies irregardless of the status of of the life experiences of lawmakers, law enforcers, the driver: young-old, famous- unknown, law breakers or followers as well as lawyers, judges powerful-jobless, or the type of car used: and legal theorists. top-of- the-line or rickety. Under this principle, the law is the law ➔ A legal scholar said that: regardless of particular attendant circumstances. “Law is very like an iceberg; only one-tenth of ➔ Also, from the point of view of generality, decisions on its substance appears above the social surface a legal question are made in advance of the in the explicit form of documents, institutions, circumstances of the application. and professions, while the nine-tenths of its This means one knows in advance' that he substance that supports its visible fragment would have violated the law if he crossed at a leads a sub- aquatic existence, living in the red light or exceeded the maximum speed habits, attitudes, emotions and aspirations of limits. men." ➔ Or, one is presumed to know in advance a statutory rape happens if sex is committed with a girl, say, below ➔ A legal issue may be approached from many angles: 12. The principle of generality is sometimes contrasted historical, psychological, economic or sociological. with that of particularity. ➔ Societal institutions may be involved such as the ➔ In the latter, the police officer for example chooses to family, community, workplace, school or religion. apply the law depending on particular circumstances. ➔ Deep-seated Filipino values of hiya, utang na loob, For example, fining the poor and unknown but pakikipagkapwa, “pakiusap," pakikisama," paggalang, exempting the rich and powerful traffic delicadeza" and "gaba" help define and give meaning violators. to a Filipino's behavior in relation to his dealing with the law. CASE STUDY II. COMMON CHARACTERISTICS OF LAW Frederick Schauer distinguished the particularistic from the generalistic decision maker: A. OBEDIENCE If a police officer stops a driver for unsafe driving, the ➔ The element of obedience is a common characteristic particularistic police officer making a particularistic decision present in all types of law. whether to summon the driver to appear in court would take ➔ The degree or freedom to which a subject may disobey into account the condition of the road, the amount of traffic, the weather, the time of day, the type and condition of the as well as the extent or coverage of the law is what car, the experience and previous driving record of the driver, differentiates the various types of law. the explanation offered by the driver, and perhaps even the ➔ For instance, scientific or "natural" laws involve all ability of the driver to pay the fine. At its extreme, things while human laws are for man alone. The former particularism is about taking everything into account. cannot be violated, hence, the element of freedom or morality is out of the question. They are inviolable. The By contrast, a more general decision-making style would not law of gravity for example. By contrast, the laws of man focus so closely on particular drivers driving particular cars under particular circumstances, but would rather have made involve tab human conduct which may or may not be the decision in advance about an entire category all drivers obeyed. They are potentially violable and their driving all cars under all conditions on a moderately large  "principle of governance" in which all persons, stretch of highway. Whatever real differences might exist among actual drivers, actual cars, actual conditions, and institutions and entities, public or private, including the actual locations would be suppressed in the service of State itself, are "accountable to laws that are: making decisions based on large categories rather than on exceedingly narrow and situation specific facts. 1. publicly promulgated 2. equally enforced 3. independently adjudicated, and C. PROMULGATION 4. consistent with international human rights norms and standards." Aquinas' Treatise on Law Rule of law also requires adherence to the following legal In Aquinas' Treatise on Law, a question was asked whether principles: promulgation is essential to law. He said it is essential, and refuted the three objections which argued as that promulgation 1. supremacy of law, i.e. the rule of law is higher than any is not essential to law. person's discretion or will; 2. accountability to the law, i.e. one is liable to be called The objections raise three points: on or to render an account before the law; 3. fairness in the application of the law; a) natural law which has the character of law needs no 4. separation of powers; promulgation; 5. participation in decision making; b) law's force affects not only those to whom the law is 6. legal certainty; directly promulgated but also those who were not 7. avoidance of arbitrariness; and parties to its promulgation, e.g. a foreigners in the 8. procedural and legal transparency." Philippines are subject to Philippine penal laws even though they were not present when the same were CASE STUDY promulgated; and c) the force of the law extends to the future and binds Comparison between poor and excellent legal systems those unborn at the time the law was promulgated. This is a hypothetical case study of two systems. Note that Aquinas replied that: the comparison does not only refer to a country but to any organization governed by rules such as a club, association, a) "natural law is promulgated." He reasoned that its school, or business organization. "promulgation" can be gleaned from the fact that God instilled natural law "into the man's mind" so that this natural law can be "known by him naturally;" POOR EXCELLENT b) those who are not present during the law's 1. Rules are not clear, or are 1. Rules are clear. The rules promulgation are bound to observe the law in that they ambiguous. This means are simply and clearly can be notified by others of the law after it was cases are decided ad hoc, written such as there could promulgated; and or on a case to case basis. be no doubt what they c) the "durability of written characters" ensures that laws mean. may be "continually promulgated even to the future. Aquinas then quotes Isidore (Etym. v.3; ii.10) that "lex 2. The rules are not made 2. The rules are made (law) is derived from legere (to read) because it is known to those affected by available to those affected written." them. The lawmakers and by them. administrators made sure D. THE RULE OF LAW every person affected understood the rules. ➔ The "rule of law" is an established legal principle which posits that whenever a legal issue presents itself, it 3. Retroactive laws are 3. No retroactive law, must be decided by applying the accepted principles used in an abusive sense, to unless for the ben- efit of of law. suit the personal whims of the accused or those ➔ In so doing, the will and personal "discretion" of the officials. already convicted. judge is set aside, and he must apply the known principles of law according to the will of the legislator 4. Rules cannot be 4. Rules can be understood. ➔ According to the report of UN Secretary-General Kofi understood — as Annan to the UN Security Council, "rule of law" is a  1. There is no binding law that applies to all countries. on to when it begins, who 2. There is no "world congress" legislating laws for are or are not affected, mankind." what acts are covered and 3. There is no "world executive" to enforce inter- oft dem the like. national law in case of violation." 4. A law is not "true law" if the parties are free to POOR EXCELLENT disregard it and if it cannot be enforced. 5. Rules contradict one 5. Rules are consistent and Article 2(7), otherwise known as the non-interference another. support one another. clause of the U.N. Charter, gives each member state of the United Nations the right not to be intervened in its 6. Rules require acts which 6. Rules only require domestic affairs. This is otherwise called the "non- are difficult or beyond those affected what they intervention" or "non-interference" clause of the U.N. normal compliance. can normally achieve. Charter." 7. Rules are changed so 7. Rules generally remain The proponents who argue that international law is true law often - it is difficult to constant. argue that: follow which one is the latest. 1. Applicability to all countries is not a require- ment for a rule to be considered as law. 8. There is a gap between 8. The rules are uniformly 2. A world congress and executive are not essential the rule (law) as such and observed by the components in the definition of law. the implementing lawmakers, department 3. International customary norms and treaties do have regulations heads, regional directors, binding effects. A country that flagrantly violates its (administration). local officials and the international obligations risks retaliatory action from police. the community of nations around the world. 9. Appellate steps unclear. 9. Appellate steps and Principle of Reciprocity other grievance mechanism is clearly spelled out. Basis of enforcement: 10. Penalty is draconian and 10. The penalty is Obedience of international law by member states is based on unreasonable. commensurate with the the principle of reciprocity. offense. ➔ This means a nation obeys because it wants other nations to do the same, and it wants to be seen as a ‘law-abiding’ country by other nations. E. IS INTERNATIONAL LAW, TRUE LAW? ➔ In practice, however, no sovereign state can be forced to obey international law without its consent or International Law willingness to do so. ➔ This is so because there is no international executive, ➔ The branch of law that governs relationships between or world police force to execute international countries and other multinational actors’ e.g. agencies decisions, even those of the International Court of and organizations, at the international level. Justice, an agency of the United Nations. ➔ Its purpose is for nation-states to maintain peaceful An exception is found in Chapter VII of the United Nation and productive relationships among each other. Charter which grants the Security Council coercive power with ➔ International law relies on agreement or consensus respect to threats to the peace, breaches of peace and acts of from among its member states. aggression." Enforcement may be done through diplomatic, ➔ At present, there is neither a 'world constitution' nor economic or military sanctions to enforce international 'world legislature' from which a binding world law decisions. could be enacted." Chapter VI of the United Nations Charter also outlines the If 'law' is a rule of conduct which a community considers as means used for peaceful settlement of disputes. These include binding upon its members,' then some argue that international the use of good offices, mediation and fact-finding. law is not true law. They cite the following reasons:  Definition of Aristotle CASE STUDY Adolf Eichmann Case ➔ “The middle ground between ideal or absolute justice on one hand and human or legal justice on the other”. On May 11, 1960, Israeli agents kidnapped Argentina citizen ➔ He said that the nature of the equitable is to give a Adolf Eichmanns from Argentine territory. Israel's act was correction of the law where it is defective owing to its unilateral, and failed to Das comply with international or universality. national (Argentine) due process laws. A clear violation of international law, it sparked protests from many states. EQUITABLE PRINCIPLES IN INTERNATIONAL Although Israel apologized to Argentina, it insisted that ENVIRONMENTAL LAW Eichmann must face charges for crimes against humanity for his role in administrating the Dachau concentration camp and a. Common but Differentiated Responsibilities in managing the deportation of the Jews to the extermination camps. For Israel, Eichmann is answerable to a higher moral ➔ This principle is an offshoot of the concept that the law in his active role in the Holocaust. Is it all right to violate world is a common heritage of mankind, thus, States international and Argentine national laws in order to answer have common responsibility towards its protection. to a higher law? Is it all right to take any law for that matter in ➔ The protection and preservation of the earth’s one's hands? biodiversity is an example of mankind’s common concern. Should Israel have refrained from kidnapping Eichmann, or ➔ However, due to differences in each State’s followed Argentine and International legal processes? contribution to the global environmental problems as well as differences in their economic and technical MODULE 3: Introduction to Legal Philosophy capabilities, their contributions need not be the same. I. JUSTICE b. Sustainable Development ➔ It is the constant and perpetual will to give everyone ➔ This assesses or quantifies development in relation to his due. its long-range impact on both the local and wider environment. “The State shall promote social justice in all phases of national ➔ A kind of development that meets the needs of the development”. (Section 10 Article II, Philippine Constitution) present without compromising the ability of future Calalang v. Williams, 70 Phil 726 ( 1940) generations to meet their own needs. c. Intergenerational Equity “It is neither communism, nor despotism nor atomism, nor anarchy, but the humanization of laws and the equalization of ➔ This principle believes that humanity must hold the social and economic forces by the State so that justice in its natural and cultural environment of the Earth in rational and objectively secular conception may at least be common, both with other members of the present approximated.” generation and with other generations, past and future. II. WISDOM Intragenerational Equity ➔ “The true function of law is to produce men who are ➔ Mandates that the equitable or prudent use of natural “completely good”, a prerequisite to wisdom. Laws that resources for the benefit of other peoples, or nations do not incline to this end are not laws. A bad law is no within the same generation. law.” (Plato) III. EQUITY ➔ Black’s Law Dictionary defines equity as the ‘recourse to principles of justice to correct or supplement the law as applied to particular circumstances.