PHILOSOPHY OF LAW REVIEWER PRELIM Proponent Aristotle

Definition: "Law should be reason without appettite"

Philosophy is the study of the universe that seeks to know the truth and rational "Law gives force to legal contracts"
explanation of anything. "The highest good is happiness and it should be exercised
Philosophy of Law branch of practical philosophy which deals with the wisdom of in accordance to virtue"
law. It studies the nature of law and all the principles that govern its formulation. Aristotle differentiated constitution from laws
Law rule of conduct formulated and made obligatory by legitimate power of the Doctrine Theory of Legislation: law should be made by people who
state. has theoretical knowledge and practical experience, eg.
politicians
When do we resort to force?
Resort to force if the law has failed to persuade people. Democracy final appeal is reason. Thus, law is the
common agreement of the state.
History Criticism
School De Legibus
Proponent Cicero
Legal philosophy started with Socrates, Plato and Aristotle (SPA).
"Law is right reason applied to comman and prohibition"
PHILOSOPHICAL SCHOOLS 3 kinds of laws in the world:
1. Lex Caelestis - it is true law; heavenly law and is the
School Historical School Doctrine right reason.
Proponent Friedrich Carl von Savigny 2. Lex Naturae - law that distinguishes the just and unjust.
"Law is related with the being ang character of the Punishes the wicked and protects the good.
people." (people centered) 3. Lex Vulgus - positive law; crowd's definition of law.
Doctrine "Law is parallel to language and custom because there is Criticism
no moment of absolute rest" School Metaphysic of Morals
"Moving force is the law of inward necessity" Proponent Immanuel Kant
*Juristic Pessimism - law must come from ones instinct. "Morals is validated if it can be established and
Criticism *Law is not merely a manifestation of the past but a comprehended by society as necessary"
preparation of the future "Positive law is codified while moral laws are not codified
School Platonic School but based on experience"
Proponent Plato
External Law - obligatory and is capable of legislation
(objective)
"Law seeks to be the discovery of reality." Maxims - subjective interpretation of an act (subjective)
"Law is public opinion" Doctrine
Categorical Imperative - where the maxim is validated in
"The end of law is to make completely good men" accordance to a Universal Law.
Doctrine A platonic philosopher is one who knows true reality and
the right thing to do. Science of Right - its end is principle of all the laws which is
First to exhibit the general science of law. possible to promulgate by external legislation

State - dominates human activity in all of its manifestation; Universal Principle of Right - every right action should co-
limitless; man on large scale; most perfect unit exist with other right action according to a Universal Law.
Criticism *Plato took the wildest possible view of law. Criticism *The metaphysics of morals was better illustrated by
School Classical Natural Law Rudolph Stammler - notion of community is inherent in
 law. Law is distinct from natural world and that law is a
complete and exclusive system. "Laws proper are commands, laws improper are not
School Philosophy of Right commands"
Proponent Georg Hegel "Law is a rule laid down for the guidance of an intelligent
"The dialectical method - conflict between what is ought being by an intelligent being having power over him"
and what is is resolved by the use of thought"
Doctrine Thesis - existent 4 divisions of law:
Antithesis - conflict 1. Divine Law
Synthesis - resolution 2. Positive Law
Criticism *Too optimistic 3. Positive Moral Law
4. Law Metaphorical or Figurative

School Positivist School - Imperative School / Analytical School Styled Laws - laws set by opinion
Proponent John Austin
Science of Ethics - based on the Divine Law

Doctrine Positive Law - laws existing by position

Difference of Command and Desire: Pain or evil inflicted

during disregard of wish

When there is increase in sanction, there is increase in

obedience

Effectivity of Laws:
Sanction - obligation or duty
Reward - right

Concept of Superiority:
May come from either excellence or might

Science of Legislation - positive law is

Science of Jurisprudence - positve law ought to be
*Law that does not exist as a perfectly proportioned body
of rules.
Criticism *It is difficult for schools to resist setting up an ideal to be a
basis of constructive criticism of law.
*Austin made that law ought to be studied separate from
morals.
 School Positivist School - Pure Theory of Law
Proponent Hans Kelsen

"Relativity of Moral Value"

Social Norm - norm that orders certain behavior of men
toward other men; these are dynamic

Moral Minimum - agreement on an absolute morality such

as peace.

Doctrine Why is there a necessity to separate Morality and Law?

In order to establish an absolutely moral order and only
one absolute justice.
In order to have a basis on the validity of a positive legal
order.

Justification of Law through Morals

Is possible only if a contrast exists between the moral and
legal norm.
*Kelsen based his work on Austin but did not consider law
as a command of the sovereign.
Criticism
*Kelsen's method constrains us and does not give us true
picture of the law
School Positvist School - Utilitarianism
Proponent Jeremy Bentham
"Utility is a property in any object that produces good or
pleasure"
Doctrine "Greatest good or happiness for the greatest number"
"Nature has placed mankind under the governance of two
sovereign masters: PLEASURE AND PAIN"
Criticism