CHAPTER TWO:

THE NATURE OF LEGAL REASONING

Prof. Emmanuel Fernando, DPhil

I. INTRODUCTION

The Legal Positivist Theory of Legal Reasoning owes much of its content from H.L.A. Hart as well
as the ideas of Joseph Raz, who introduced the concept of an exclusionary reason, as an
authoritative reason, to augment the theory. Before I discuss, however, the positivist theory itself,
there is a need to examine three characteristics said to be essential to any theory of legal reasoning.

The model of legal reasoning is that of the reasoning done by the judges. They are authoritative in
the sense that their decisions state what the law is. Nonetheless, lawyers reason in the same way.
This is but expected. In actual cases, they are trying to convince the judge to adopt their legal point
of view. Hence, they prepare their pleadings in such a way as to make the judge agree with their
reasoning. Consequently, they argue in a way similar to that of the judge.

Consequently, when I use the term legal reasoning, I include within it judicial reasoning, and I
acknowledge that judicial reasoning actually provides the paradigm of legal reasoning. So I may use
the terms interchangeably as meaning one and the same, ignoring the slight differences between
them.

II. THE THREE REQUISITES TO AN

ADEQUATE THEORY OF LEGAL REASONING

The first two characteristics of a theory of legal reasoning, rationality and universalizability, provide
the foundational requirements of the construction of a theory of legal reasoning as an explication of
the concept 'justice in accordance with law'. The concept is composed of three aspects, 'justice', 'law'
and the relation between them. Furthermore, the concept can be explored from either the natural
law or the legal positivist perspective. The two characteristics articulate and develop the 'justice'
aspect of that concept, and are neutral to the two philosophical perspectives.

The above two claims combined appear paradoxical. After all, I have depicted the naturalist
viewpoint as treating the concept of 'justice in accordance with law' from the perspective of justice.
How can the two characteristics, as articulations of justice, therefore fail to be partial to natural law?
Two related considerations concerning the characteristics dispel the confusion. First, the two
characteristics are intrinsic to any situation involving legal reasoning, even one without law. Since
the two characteristics do not presuppose law as a standard to guide, they can be seen to be
necessary to legal reasoning prior to any philosophical conclusions about the nature of law having
been formed, be they naturalist or positivist. This goes some way towards establishing the neutrality
of the characteristics but in itself is not sufficient. It still leaves open the possibility that the justice
specified is a type that tends towards a naturalist rather than a positivist conception of law and
adjudication. Fortunately this is not so because of the second consideration. The characteristics are
formal rather than substantive requirements.

Being formal characteristics and in requiring that the decision be in terms of an articulated
universalized reason, they failed to indicate what the content of that reason must be, apart from
insisting that it be non-arbitrary. The third requirement, conventionality, goes some way towards
substantiating that content: it must be based on the law. Otherwise plain and simple justice is
rendered, not justice in accordance with law.1 The third requirement therefore is a substantive
characteristic that is focused on ‘law’.

The first characteristic, rationality, requires that a judicial decision in any given case must be
justified in terms of articulated reasons, while the second, universalizability, insists that the
conclusive articulated reason must either be expressed or be capable of being expressed in the form
of a universal norm which subsumes the facts of the case, so as to entail logically the decision.

The two are conceptually related. A reason if it is to be a reason must be universalizable. In

justifying its application in a given instance, it must claim also to apply to any other
indistinguishable instance. Otherwise it simply fails to be a reason or to justify.2 That being so the
two characteristics are nevertheless treated as separate requirements. This is done to emphasize
distinct and equally important aspects of a justifying reason.

In specifying and justifying the first characteristic, two models will be introduced. This will be done
mainly to help demonstrate that rationality is a necessary requirement of legal reasoning but also to
eliminate the two models for being unsuitable as ideal models, having failed to meet the first
requirement. The specified characteristics therefore, perform a dual function, first as a requirement
of an ideal model and secondly as criteria with which to test various proposed ideal models.

A. Rationality

The requirement that a judicial decision be in terms of articulated reasons consists of two aspects.
The first places the emphasis on 'reasons' and the second on 'articulated'. The requirement, in both
its aspects, focuses on and gives substance to the concept of 'justice in accordance with law'.

1. The Decision Must be Based on Reasons.

'Reason' here is used in two senses, the first in an apparently trivial and the second in a more
substantive sense. Actually both senses are important, but the second has greater significance in the
thesis and is the one widely used. Hence when I use 'reason', I mean it in the second sense unless
otherwise indicated. The two senses can be distinguished in terms of the contrasts they make, the
first with causes or motives and the second with arbitrariness.

a. Reason contrasted with motive or cause

That the decision be in terms of reasons makes the first 'trivial' point that legal reasoning is a
justificatory enterprise. This requirement merely reflects the actual legal practice. Courts resolve
disputes and do this on the basis of reasons. Each side to the dispute presents its claim and defends
it by means of arguments, at the same time using argument to show the weakness of the other side's
claim. The court on the basis of these arguments makes its decision, which is again justified by
means of reasons.

The decision therefore is based on reasons, and not on motives or causes. This contrast, though
trivial, is important for it is easy to fall victim to a category mistake. A case may have been decided
because the judge felt pity on the defendant, owed one of the lawyers a favor, belonged to a
particular social class, espoused certain political views, ate something unpalatable for breakfast, etc.,

1
Santos, Sr. v. Court of Appeals, 242 SCRA 407, 409 [1995].
2
See, for example, R. M. Hare, "Universalisability", Proceedings of the Aristotelian Society, LV (1955), p. 297.

39
but that is neither here nor there in the realm of justification. That may explain the court's decision,
not justify it. In philosophical parlance, that belongs to the context of discovery and not of
justification, and models of adjudication are all about justification, not explanation.

b. Reason contrasted with arbitrariness

The second sense in which to take 'reason' is in terms of the contrast with arbitrariness. In this sense,
an arbitrary ground for a decision is strictly speaking not a reason, but it can function as a
justification. It is not a reason because the ground it provides for the decision has no relevant
connection with the decision. Being arbitrary, it fails to be a reason, but it provides a justification,
albeit a poor one, for the decision.

i. Rationale

The sub-requirement that the decision be in terms of reasons, in both senses of 'reason', is justified on
the same ground, that of justice. Only in this way can justice be served. A further ground justifies
the sub-requirement in the second sense, the sense of non-arbitrariness: a decision, which has no
basis in reason or is purely arbitrary is extremely impractical.

The Rationale of Justice

It is only when the decision is based on reasons that justice can be served. Justice presupposes that
one claim in a dispute is stronger than another, is better grounded in reason, has more right or is
more morally sound. Hence failure to resolve the dispute in favor of the claim better grounded in
reason or having more right behind it is to deprive that claim of justice.

Indeed to resort to means other than reason is an admission of defeat; it is to concede that reason in
unable to settle the issue. Since reason cannot provide a solution, why then should the issue be
decided on that basis? This resort to non-reason or arbitrariness may be due to two types of
skepticism, corresponding again to the two senses of reasons.

The skepticism based on denial of free will. The first type of skepticism is based on denial of free will. It
claims that because the will is not free, justification is not possible and is at best a sham enterprise.
Reason can never decide issues, only causes or motives do. It only appears as if the judge or any
decision-maker for that matter is guided by reason, but he is not. The judge or decision-maker
merely provides a rationalization for his decision, which has already been decided for him or caused
beforehand by his physical or psychological make-up, or by social, economic or political factors.

This type of skepticism can be challenged on two grounds: by an objection to the denial of free will
or the presumed connection between the absence of free will and the possibility of justification. I
will not explore these objections. It is too far removed from the concern of this thesis, taking me
into contentious and perhaps perennially unsolvable areas in metaphysics and philosophy.
Moreover, the philosophical literature on the matter is already quite voluminous. Instead I will
simply make two observations.

First, it is a claim refuted by its own argument. If everything were caused and there were no such
thing as justification, then any argument which proves the claim must be an instance of justification.
The argument, in other words, proves the very thing it set out to deny, that justification is possible.
This observation does not render the claim false, only indemonstrable. After all, the claim does not
refute itself; it is the argument if valid which does. It is perfectly possible that the argument not the
claim is the one which is faulty. Being caused, the argument may not be valid and hence fails to be

40
an instance of justification. If so, the claim may actually hold true, but unprovably true. It may still
be the case that the will is not free or that justification is not possible, although that can never be
proved, at least by means of reasoned argument, to be so.

This leads me to the second observation. The first type of skepticism can readily be rejected on
pragmatic grounds. It is too radical a claim, too contrary to our concepts and betrays a defeatist
attitude. In questioning the very possibility of free will and of justification, it renders dubious even
the project of writing this thesis. This is a counterproductive way of going about matters. The only
prudent course, in the absence of any compelling or indeed any reasoned argument, is to assume
instead that justification is possible and to proceed on that basis.

The skepticism based on the denial of rational justification. The second type of skepticism is a skepticism
against 'reason' in the second sense. It assumes that man is free or at least that justification is
possible, but justification in terms of reason is not. In other words, man can resort to reason to guide
his decision but reason fails to cooperate.

This skepticism is again of two kinds, radical and moderate. In the radical version, there is no
rational way of determining which decision is more just, more morally sound, or right. Either no
rational basis exists for claiming whether a consideration is relevant or not, or none exists for
weighing competing considerations. This radical skepticism is a moral skepticism, but it is not
confined to morals. For relevant considerations may include non-moral ones, like prudential,
conventional or legal reasons.

Moderate skepticism is a more plausible view. It insists only that reason is unable to settle the issue
on certain occasions. The relevant considerations can be determined and even weighed or measured
against each other, but at times reason is unable to tell which side has the greater weight, either
because the sides are too finely balanced or some considerations are incommensurable with each
other. This renders it necessary to decide on a basis other than reason. This kind of skepticism is
not to be confused with another kind, that of legal realism. The latter is not a skepticism about
reason, only about law. It insists that in most if not all cases, law, being uncertain or indeterminate,
fails to dispose of the issue, and hence requires the judge to consult extra-legal considerations for
guidance. These extra-legal considerations may include moral ones or those based on reason.
Hence legal realism is not necessarily skeptical about reason, only about law. A theory of legal
reasoning can be constructed based on this skepticism about law, but since it is not a model based on
a skepticism about reason, the analysis of that theory does not belong to this section but to Part III,
Chapter 16 of this book entitled, The Social Science Theory of Legal Reasoning.

The Rationale of Practicality

Apart from the argument of justice, there is a second justification for the decision being based on
reasons, that of practicality. To see why this is so, consider the rationale for the existence of courts.
Courts respond to society's need for an acceptable mechanism or procedure with which to resolve
disputes. In any society, people interact and inevitably their interests conflict. In many instances,
each side to the conflict feels, not unreasonably, that his claim is the right one; moreover, the
interests involved may be so vital and important that either side may resort to whatever means,
including violence, to secure those interests. There is a need then for a dispute-resolving
mechanism, the courts, if only to minimize violence or prevent that violence from reaching such
proportions as to destroy any possibility of a stable and orderly community existence.

ii. The Random Model

41
However, not just any procedure for resolving disputes will suffice. A procedure, for example which
produces arbitrary and random results like tossing a coin called the random model, is not feasible. It
is not feasible for immediately obvious practical reasons. Not only would it always be worthwhile
for someone to bring a case to court, because then the party with the weaker claim increases his
chances of winning to parity; but it also would always be worthwhile to reopen the claim by
questioning the verdict, since the loser’s chances in the dispute will then be revived. Thus, the court
will not be unnecessarily and unduly be burdened by countless disputes but there would conceivably
be no end or final resolution of these disputes.3

The random model has an opposite undesirable effect. A procedure which yields random results
will not do for those seeking justice. The resolution of the dispute must somehow be acceptable to
those who want only what they believe is rightfully theirs. Otherwise no one, apart from the
unscrupulous, will resort to the courts to have their disputes resolved. They will settle their own
disputes in their own way, either by resorting to violence or by institutionalizing their own
procedure.4 Both recourses defeat the very purpose of having a court and may eventually undermine
the entire legal system itself.

2. The Reasons Must Be Articulated.

The second aspect of the requirement of rationality insists that the justifying reasons must be
articulated. This sub-requirement, which conforms to the way actual adjudication is conducted,
happens to be so for good reason. It too serves the ends of fairness and justice.

a. Actual Judicial Practice and its Statutory Basis

The practice of articulating the reasons for the decision already is an established convention, if not a
statutory requirement, among sophisticated legal systems today. Courts normally justify their
decision in the form of an opinion, which is both a public record of their decision and the basis for it.

Statutory basis for this practice exists in some jurisdictions. In Finland for example, the Code of
Judicial Procedure states: "Every verdict must be based on reasons and on a statute, not on arbitrary
decision, and the main reasons as well as the relevant provisions of law must be clearly written down
on it."5

The requirement in Italy is more elaborately developed, which reflects its importance in its system of
law. Thus, Art. 111 al. 1 of the Constitution states the general principle that every judgment must be
justified by an opinion, whereas code rules specify the opinion's minimum content as "a brief
statement of the factual and legal reasons for a decision". The code rules then proceed to explain at
some length the requirements of minimum content.6

3
J. R. Lucas, The Principles of Politics, 18.
4
Id., 76-77.
5
(Chapter 3, section 24)
6
Art. 132 n. 4 code civ. proc., and Art. 474 n. 4 code crim. proc. Thus, a minimum opinion based on the
constitutional principle encompasses:
"(a) reasoned justification of the judgement of fact, on the basis of proofs and their evaluation; (b)
a reasoned justification on the interpretation of the rule of law governing the case; (c) the
statement and a reasoned justification of the value- judgements underlying the decision about the
facts and the law; (d) a reasonable consistency in the structure of the opinion as a whole."
(Massimo la Torre, Enrico Pattaro and Michele Taruffo, "Statutory Interpretation in Italy",

42
i. The Philippine Experience

Philippine law also places importance on rationality. No less than the first paragraph of Article VIII,
Section 14 of the 1987 Constitution provides: "No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based." Codal provisions
in the Rules of Court then reiterate this constitutional standard and flesh it out for civil and criminal
cases.7 Moreover, Supreme Court Administrative Circular No. 1 dated 28 January 1988, reminds all
judges "to make complete findings of facts in their decisions, and scrutinize closely the legal aspects
of the case in the light of the evidence presented. They should avoid the tendency to generalize and
form conclusions without detailing the facts from which such conclusions are deduced."

The constitutional standard satisfies both sub-requirements of rationality: the first, that the decision
be based on reasons, by insisting that the decision be based on the facts and the law; and the second,
that the reasons be articulated, by requiring that the reasons be clearly and distinctly expressed.

In general, the standard applies to courts of record like the Regional Trial Courts and the
Metropolitan or Municipal Trial Courts, and not to administrative bodies with quasi-judicial
functions like the Department of Labor.8 Moreover, there is a different laxer standard for appealed
cases in appellate courts.

Jurisprudence abounds in elucidation of this standard. For example, the Supreme Court has
described it as a standard where there is no "rigid formula as to the language to be employed", and
where "the discretion of the particular judge . . ., while not unlimited, is necessarily broad".9
Nonetheless, lower court decisions have been held to violate it for being too brief and insufficiently
detailed or particular,10 for being too long and failing to distinguish the significant from the

Interpreting Statutes: A Comparative Study, ed. by D. Neil MacCormick and Robert S. Summers,
Dartmouth Publishing Co., Vermont, U.S.A., 1991, p. 239.)
7
Rule 36, Sec. 1, for example, reads: "A judgment or final order determining the merits of the case shall be in
writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it
is based, signed by him, and filed by the clerk of court." This applies to civil cases. Due to the greater import of a
criminal case and its broader sweep, the requirement as to rationality is understandably more detailed and specific.
Thus Rule 120, Sec. 2 provides:
"Sec. 2. Form and content of judgments.--The judgment must be written in the official
language, personally and directly prepared by the judge and signed by him and shall contain
clearly and distinctly a statement of the facts proved or admitted by the accused and the law upon
which the judgment is based.
"If it is of conviction, the judgment shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or mitigating circumstances
attending the commission thereof, if there are any; (b) the participation of the accused in the
commission of the offense, whether as principal, accomplice or accessory after the fact; (c) the
penalty imposed upon the accused; and (d) the civil liability or damages caused by the wrongful
act to be recovered from the accused by the offended party, if there is any, unless the enforcement
of the civil liability by a separate action has been reserved or waived.
In case of acquittal, unless there is a clear showing that the act from which the civil
liability might arise did not exist, the judgment shall make a finding on the civil liability of the
accused in favor of the offended party."
8
Valladolid v. Inciong, 121 SCRA 205 [1983].
9
Jose v. Santos, 35 SCRA 538, 543 [1970]).
10
See, for example, People v. Banayo (129 SCRA 725, 731 [1984]); People v. Escober (157 SCRA 556-557
[1988]); Nicos Industrial Corporation v. Court of Appeals, 206 SCRA 127 [1992].

43
insignificant,11 for making "conclusions of facts and law arrived at ... without stating the facts which
serve the basis therefor",12 or for failing to express the facts of a case after the court failed to conduct
a searching inquiry to an accused who had pleaded guilty to a capital offense".13 Moreover, there is
nothing wrong if the court makes "a selective finding of facts"; indeed, it is imperative for it to do
so.14 Thus, the necessity of making a finding of facts and of expressing it in the opinion has been
stressed, non-compliance with which has at times been held to constitute reversible error.15

The requirement has been held "to refer only to decisions on the merits and not to orders of the trial
court resolving incidental matters" or interlocutory orders.16 In that regard, an Order dismissing a
complaint not only for lack of jurisdiction but also because of insufficiency of the evidence, is
tantamount to a decision on the merits and is not a mere interlocutory order.17

As previously mentioned, a different, laxer standard, exists for appealed cases. Although the second
paragraph of Sec. 14, Art. VIII of the 1987 Constitution requires that "(n)o petition for review or
motion for reconsideration of a decision of the court shall be refused due course or denied without
stating the legal basis therefor", such 'legal basis' is normally taken in the light of Section 40 of Batas
Pambansa Bilang 129 (B.P. No. 129), or the Judiciary Reorganization Act of 1980, and Sec. 24 of its
Interim Rules and Guidelines,18 which allow for memorandum decisions.

A memorandum decision has been judicially defined as one "rendered by an appellate court ... (that)
incorporates by reference the findings of fact or conclusions contained in the decision, order or
ruling under review."19 The practical need for memorandum decisions is obvious, since in avoiding
the cumbersome reproduction of the decision with the lower court, it enables appellate courts to deal
expeditiously with its enormous case load.20 Yet the courts must guard against the dangers of
abuse of this laxer standard.21

11
People v. Molina, 184 SCRA 597, 598 and 605 [1990].
12
Valdez v. Court of Appeals, 194 SCRA 360, 370 [1991].
13
People v. Dayot, 187 SCRA 637, 645 [1990].
14
People v. Bravo, 227 SCRA 285, 291 [1993]). See also, Braga v. Millora (3 Phil. 458, 465 [1904]);
15
Escober, supra.; see also, Montelibano v. Director of Lands (21 Phil. 449, 451-452, [1912]); Hernandez v.
Colayco (64 SCRA 480, 489-490 [1975]; Alindogan v. Insular Government (15 Phil. 168, 169 [1910]; City of
Manila v. Insular Government (9 Phil. 71, 76 [1907]); Braga v. Millora (3 Phil. 458, 463 [1904]); and Enriquez v.
Enriquez (3 Phil. 746, 748-749 [1904]).
16
See, for example, Soncuya v. Junta Nacional (69 Phil. 602 [1940]); Bacolod Murcia Milling Co. v. Henares (107
Phil. 560 [1960]); Nicos Industrial Corporation v. Court of Appeals, 206 SCRA 127, 132 [1992].
17
Nicos Industrial Corporation v. Court of Appeals, 206 SCRA 127, 133 [1992]
18
Sec. 40 of B.P. No. 129 states: "Every decision or final resolution of a court in appealed cases shall clearly and
distinctly state the findings of fact and the conclusions of law on which it is based, which may be contained in the
decision or final resolution itself, or adopted by reference from those set forth in the decision, order, or resolution
appealed from."; while Sec. 24 of its Interim Rules provides: "The judgment or final resolution of a court in
appealed cases may adopt by reference the findings of fact and conclusions of law contained in the decision or final
order appealed therefrom."
19
Francisco v. Permskul, 173 SCRA 324, 333 [1989].
20
See, for example, Permskul, at p. 330 and 331.
21
Romero v. Court of Appeals (147 SCRA 183, 195 [1987]), for example states that "the authority to adopt by
reference the findings of fact and conclusions of law from those set forth in appealed decisions should be exercised
with caution and prudence, because the tendency would be to follow the line of least resistance by just adopting the
findings and conclusions of the lower court without thoroughly studying the appealed case." Permskul requires that
the findings of fact and conclusions of law adopted by reference in appealed decisions in accordance with B.P. No.
129 must not be by remote reference, but by "direct access to the facts and the law being adopted, which must be

44
There is, furthermore, the decision by means of a minute resolution, which has been held in certain
cases to have sufficiently complied with the constitutional requirement, so long as the "legal basis"
therefor is stated in the resolution.22 The Supreme Court, in fact, disposes of the bulk of its cases in
this manner, as "where a case is patently without merit, where the issues raised are factual in nature,
where the decision appealed from is supported by substantial evidence and is in accord with the facts
of the case and applicable laws, where it is clear from the records that the petition is merely to
forestall the early execution of judgment and for non-compliance with the rules."23

The issuance of a minute resolution does not mean that it was not the result of a thorough
deliberation.24 Thus the substantive rights of the parties are anyway protected. It is warranted by the
pragmatic need to avoid laborious and time-consuming procedures, this being the only practical way
whereby the Supreme Court can act on all cases before it and discharge its constitutional function.25
But this practice "of making minute resolutions and of disposing of cases with simple declarations of
affirmance must be deemed reserved only to the Supreme Court."26

b. Rationale

It is not surprising that this sub-requisite reflects actual judicial practice. It serves justice in two
ways. First it does justice or is fair to the losing party. For "(w)hatever is the court's decision,
necessarily one party is disappointed. Unfortunately, it is a rare litigant who does not feel somehow
offended when he loses; it is human nature to vent his dissatisfaction partly on the hapless arbiter,
whom he may suspect of partiality."27

Respect for the losing litigant therefore demands that he be informed of the reasons why he has lost
the case. He would justifiably be aggrieved if he were not told of the reasons for his defeat. Francisco
v. Permskul makes this very point and adds others:

". . . The purpose (of Sec. 14, Art. VIII of the 1987 Constitution) has always been
the same, viz., to inform the person reading the decision, and especially the parties, of
how it was reached by the court after consideration of the pertinent facts and
examination of the applicable laws.

The parties are entitled to no less than this explanation if only to assure them that the
court rendering the decision actually studied the case before pronouncing its
judgment. But there are more substantial reasons. For one thing, the losing party
must be given an opportunity to analyze the decision so that, if permitted, he may
elevate what he may consider its errors for review by a higher tribunal. For another,
the decision, if well-presented and reasoned, may convince the losing party of its

contained in a statement attached to the decision" (at p. 335), warning, moreover, that "the memorandum decision
should be sparingly used lest it become an addictive excuse for judicial sloth" (at pp. 335-336).
22
Mendoza v. Court of First Instance of Quezon, 51 SCRA 369 [1973])
23
Borromeo v. Court of Appeals, 186 SCRA 1, 5 [1990].
24
Borromeo, supra.
25
Escober, supra.
26
Gindoy v. Tapucar, 75 SCRA 31, 40 [1977].
27
Conde v. Superable, Jr., 29 SCRA 727, 727-728 [1969].

45
 merits and persuade it to accept the verdict in good grace instead of prolonging the
litigation with a useless appeal. . . ."28

But it also serves justice in this second, broader sense. A procedure which requires the reasons to be
articulated promotes more morally sound and just decisions.

". . . decisions with a full exposition of the facts and the law on which they are
based, especially those coming from the Supreme Court, will constitute a valuable
body of case law that can serve as useful references and even as precedents in the
resolution of future controversies.29

These points are best illustrated by means of an analogy with the wise man model.

i. The Wise Man Model

Disputes have not always been resolved by courts with an articulation of reasons. In ancient or
primitive times for example, it was not unusual for a judge to resolve a dispute on the basis of an
intuition or a sense of rightness, whether this was divinely revealed to him or inspired by a mature
wisdom. Moreover, the mere proclamation of his decision would be sufficient o convince not only
the disputants but also the entire community of its inherent justice. So confident and trusting were
they in his wise judgment that to question his decision would have been unthinkable.

This has its parallel in contemporary times:

“In some areas of both life and law, however, institutions are permitted to operate
with full particularity: People converge on the result, but they need offer no reasons
for their decisions. Each decision applies to the case at hand and to that case alone.
People avoid grand theories, but they avoid low-level justifications too. In refusing
to hear a case, for example, the Supreme Court is silent, and its refusal has no
precedent force. In issuing verdicts, juries usually do not give reasons. College
admissions offices produce results but barely justifications. Many teachers do not
offer reasons for grades, at least not in law school. Outcomes are not merely
incompletely theorized; they are not theorized at all. They are based on a special
form of casuistry—judgments unaccompanied by reasons uniting or distinguishing
cases.

Full particularity has diverse sources. A judge may actually have reasons but fail to
give them publicly; people may lack reasons in the sense that they know what they
think should happen without knowing why it should happen; or people on a
multimember institution may be unable to agree with one another about relevant
reasons and hence leave an outcome officially unexplained. In any of these cases,
this approach offers full particularity because by their very nature, reasons are more
abstract than the outcomes they justify. Reasons may therefore apply to cases that
the court, in justifying a particular decision, does not have before it.

28
At p. 327. See also, Gindoy v. Tapucar, 75 SCRA 31, 38 [1977]; Nicos Industrial Corporation v. Court of
Appeals, 206 SCRA 127, 132 [1992].
29
Permskul, at p. 327.

46
 In American law, perhaps the most famous (or infamous) illustration comes from
Justice Potter Stewart: ‘I shall not today attempt further to define the kind material I
understand to be embraced within that shorthand definition of [hard-core
pornography] and perhaps I could never succeed in intelligibly doing so. But I know
it when I see it, and the motion picture involved in this case is not that.’ Consider
also John Dewey’s rendition of ‘the old story of the layman who was appointed to a
position in India where he would have to pass in his official capacity on various
matters in controversies between natives. Upon consulting a legal friend, he was
told to use his common-sense and announce his decisions firmly; in the majority of
cases his natural decision as to what was fair and reasonable would suffice. But his
friend added: “Never try to give reasons, for they will usually be wrong.””30

This model of adjudication based on intuition, referred to as the 'wise man model', unfortunately has
several shortcomings which render it inept at producing just results. This is so, even granting the
existence of such wise men or sages, whether divinely inspired or humanly sensible. The
shortcomings are due essentially to the inevitable unreliability and inherent inaccessibility of
intuitions. Thus, the model is without the means to safeguard itself against its vulnerability towards
error and bias. A wise man, even if honest, may base his decision on a faulty intuition. Moreover,
he may be inconsistent in the use of his intuition, deciding similar cases differently and
distinguishable cases similarly. Furthermore, other judges may have conflicting intuitions about
how to decide cases, and this will correspondingly be reflected in their decisions. Finally, he may
decide cases on the basis of bias, prejudice, whim or caprice and then justify himself by appealing to
the infallibility of his intuitions. In all these instances, no means are available with which to test the
correctness of the decisions. Since its correctness is based on an intuition private and inaccessible,
its wisdom, its justice as well as its absence of bias are forever spared from scrutiny.

All these are avoidable in a model of adjudication, which requires the reasons to be articulated.
Thus, by supplying reasons, the judge will eventually minimize the errors in adjudication. He
achieves this in two ways, by helping to improve its over-all quality and to ensure more consistency.
For in articulating his reasons, the judge also clarifies them in his own mind. He is thus rendered
able to assess their soundness and force. Moreover, other members of the community will join in
the process and criticize such reasons, or subject them to scrutiny. Good reasons tend not to be
noticed and subscribed to, while bad ones are exposed or rejected. Consequently, these good
reasons now provide a basis and a guide for deciding not only future cases relevantly similar, but
many other cases besides. This will not only improve the overall quality of adjudication but will
ensure more consistency in the legal system.

The practice of articulating reasons will also discourage bias.

"Like every human being, a judge is subject to the influence of prepossessions and
preferences, at times deeply and intensely felt. Nonetheless, the moment one wears a
judicial robe, his personal likes and dislikes should be brought under judicial control.
His guiding principle should be one of the utmost objectivity. That is the ideal; it
must, as much as possible, be lived up to. Otherwise, he fails in his grave
responsibility; he is recreant to his trust."31

30
Cass Sunstein, Legal Reasoning and Political Conflict, Chicago: 1995, pp. 136-137.
31
Conde v. Superable, Jr., supra., at p. 729 [1969].

47
A reason, which reflects bias conspicuously, belongs to the set of bad reasons, which are to be
rejected by the community. Thus, neither a person’s appearance, sex, social background, race nor
his personal relationship with the judge can normally qualify as a legally relevant reason for the
decision. Only good reasons are relevant and acceptable. And the practice of articulating reasons
will single out these good ones, while the bad reasons, based on bias, will no longer be, if they have
at all been, openly used.

III. UNIVERSALIZABILITY

Under the requirement of universalizability, the justifying reasons are to be articulated or at least
must be capable of being articulated in the form of a universal norm under which the facts of the
case are to be subsumed so as to entail logically the decision. Moreover, this norm is intended to
apply not only to the given case, but also to all cases relevantly similar. This requirement is not alien
to the actual practice of judicial reasoning. It is a weak version of the notions of ratio decidendi and
stare decisis in judicial precedent.

Moreover the requirement has statutory basis. It is reflected in the equal protection clause of the
Constitution.32 Indeed, to decide that this person is to be governed by this universal norm is to make
a commitment as to the future equal and similar treatment of all persons that happen to fall within
the scope of that norm.

A. The Requirement Specified

1. Logical or Conceptual

Although the requirement has statutory basis, it is actually a requirement prior to law, and is
embodied in the very nature of reasoning and of law. As previously pointed out in the beginning of
the chapter, universalizability is a conceptual or logical feature of reasoning in general.33 Hence
universalizability is not a separate requirement, but actually is intrinsic to and follows from the first
requirement of rationality. If a reason applies in this instance, then it must apply in any other
relevantly similar instance. Otherwise it fails to be a reason, or to provide a justification.

Moreover, universalizability is intrinsic to law. Hence, it is a logical feature not just of reasoning in
general, but also of legal reasoning in particular. Indeed, that laws are universal or general has said
to be part of the meaning of law. Thus Fuller posited that because law is a system for subjecting
human conduct to the governance of rules, it has an inner morality and is composed of eight
characteristics necessary to its satisfactory definition, generality being the first.34 Hart, on the other
hand, maintained that law, being the main instrument of social control, must communicate in terms
of general standards of conduct and must predominantly, but not exclusively, refer to classes of
persons, and to classes of acts, things, and circumstances.35 Raz echoed the same sentiment when he
asserted that because law must be capable of guiding the behavior of its subjects, it is sometimes
assumed that the requirement of generality is of the essence of the rule of law. Actually, the making

32
Article III, Sec. 1, 1987 Constitution.
33
supra., fn. 1.
34
Lon L. Fuller, The Morality of Law, New Haven, Yale University Press, rev. ed., 1969, p. 46.
35
H.L.A. Hart, The Concept of Law, Clarendon Press, Oxford, 1961, p. 121.

48
of particular laws (particular legal orders) is not anathema to the rule of law, but it should be guided
by open, stable, clear and general rules.36

a. The Ratio as the Universal Norm

That legal reasoning be universalizable is such an accepted and unquestioned doctrine in legal
reasoning that it needs no justification. It is precisely the rationale behind the requirement that every
decided case must have a ratio decidendi, so that if a judge happened to neglect articulating one, it is
left to later commentators or judges to provide or formulate it. Thus the ratio is inevitably phrased in
the form of a universal or general norm, which is oftentimes referred to as the principle or rule of law
of the case.

This is confirmed by various noted legal authorities. For example, Austin maintained: "It follows
from what has preceded, that law made judicially must be found in the general grounds or must be
found in the general reasons, as detached or abstracted from the specific peculiarities of decided or
resolved cases. ... The general reasons or principles of a judicial decision (as thus abstracted from
the peculiarities of the case) are commonly styled by writers of jurisprudence, the ratio decidendi."37
Wambaugh insisted that "the reason for the decision, the ratio decidendi, must be a general rule
without which the case must have been decided otherwise."38 John Salmon asserted: "A precedent,
therefore is a judicial decision which contains in itself a principle. The underlying principle which
thus forms its authoritative element is often termed the ratio decidendi."39 Prof. Morgan described it
as "those portions of the opinion setting forth the rule of law applied by the court, the application of
which was required for the determination of the issues presented, are to be considered as decision
and as primary authority in later cases in the same jurisdiction."40 Goodhart reasoned that "(t)he
principle of the case is found by taking account (a) of the facts treated by the judge as material, and
(b) his decision based on them."41 Glanville Williams defined the ratio as "the rule of law upon
which the decision is founded."42 Karl Llewellyn pointed out: "The court can decide the particular
dispute only according to the general rule which covers a whole class of like disputes."43 According
to Lord Halsbury: "It may be laid down as a general rule that that part alone of a court of law is
binding upon courts of coordinate jurisdiction and inferior courts which consist of the enunciation of
a reason or principle upon which the question before the court has been really determined. This
underlying principle which forms the only authoritative element of a decision is often termed the
ratio decidendi."44 Professor Montrose suggested that the expression ratio decidendi is used in two
senses either of which is referred to as a 'rule of law'.45 Rupert Cross defined it thus: "The ratio
decidendi of the case is any rule of law expressly or impliedly treated by the judge as a necessary step
in reaching his conclusion, having regard to the line of reasoning adopted by him or a necessary part
of his direction to the jury."46

36
Joseph Raz, "The Rule of Law and its Virtue", in The Authority of Law, Clarendon Press, Oxford, 1979, pp. 214-
216.
37
John Austin, Jurisprudence, 5th ed. 1885, p. 627.
38
Study of Cases, (2d. ed. 1894), pp. 17-18.
39
Jurisprudence (7th ed. 1924), p. 201.
40
The Study of Law (1926), p. 109.
41
"Determining the Ratio Decidendi of the Case, Essays in Jurisprudence and the Common Law, p. 38.
42
Learning the Law (1982, 11th ed.) p. 66.
43
The Bramble Bush, 1941, p. 42.
44
18 Halsbury's Laws of England 210.
45
Montrose, Annual Law Review of Western Australia, 1953, p. 19.
46
Precedent in English Law, 3d. ed. paperback, 1979, p. 76.

49
It is undisputed that every judicial opinion has a ratio; what it actually is or means and how to
extract or formulate it, however, are contentious. Hence, there have been a number of
disagreements concerning what the ratio is or means. Glanville Williams pointed out: "It (the ratio)
may mean either (i.) the rule that the judge who decided the case intended to lay down and apply to
the facts, or (ii.) the rule that a later court concedes him to have had the power to lay down."47
Moreover, Professor Julius Stone argues that there exist "a range of alternative rationes decidendi
competing inter se to govern future situations and as among these, only future decisions will show
which is binding."48 Be that as it may, the undisputed assumption that every judicial opinion
contains a ratio presupposes the indispensability of universalizability as a requirement of
adjudication.

2. Formal not Substantive

The requirement of universalizability is distinct from Prof. Wechsler’s insistence on a principled

neutrality and generality in judicial decision-making, which had sparked a lively debate in American
jurisprudential circles in the late 1950s and early 1960s.49 The requirement's point is conceptual and
formal, while Wechsler's, at least the way it has been interpreted by critics, is substantive.
Universalizability merely makes the trivial claim that the decision be made in terms of reasons. This
entails the reason’s universality and its unavoidable relevance, not just to the instant case, but to
future cases as well. The latter, on the other hand, takes a substantive stand concerning how well
considered the reason must be. How far ahead into the future, or how much of possible future cases,
for example, must the judge look into and consider in framing the universal norm dispositive of the
case with the right level of generality and degree of perspicacity?

Indeed I concede that it is inevitable for the court to imagine possible cases and for the decision to
have effects on future cases. That is merely a consequence of the case being decided on the basis of
reasons. That point is uncontroversial, which Wechsler and his critics should concede. It makes no
statement however as to how well-considered those reasons must be, how much of other cases and
relevant factors should be deliberated upon and how far ahead in to the future the judge must
ponder, which is a matter for debate between Wechler and his critics. Indeed that is the controversy
he has sparked which does not contest but rather presupposes the point I am making.

Hence the requirement of universalizability is merely a formal requirement, and not a substantive
one. It is nothing but the principle of formal justice, or, as earlier mentioned, the equal protection
clause of the Constitution,50 in another guise. In other words, it commits itself to the principle that
like cases are to be decided alike and different cases differently, without necessarily indicating how
the cases are to be decided.

3. Rationale

47
Williams, id., p. 75.
48
Stone, Legal Systems and Lawyer's Reasonings, p. 274.
49
H. Wechsler, ‘Toward Neutral Principles of Constitutional Law’, Harvard Law Review 73, (1959), 1. See also the
symposium of judicial reasoning in S. Hook, ed., Law and Philosophy, particularly the articles of E. Levi, ‘The
Nature of Judicial Reasoning’, 263-281, P. Freund, ‘An Analysis of Judicial Reasoning’, 282-289, H. Wechsler,
‘The Nature of Judicial Reasoning ‘, 290-300, and L. Henkin, ‘”Neutral Principles” and Future Case’, 301-309.
50
Bernard Williams, "The Idea of Equality", in Peter Laslett and W. G. Runciman, eds., Philosophy, Politics and
Society, Series II (Oxford, Basil Blackwell, 1962). Peter Westen, "The Empty Idea of Equality"; also Speaking of
Equality (Princeton, Princeton University Press, 1990), pp. 110-131. Michigan Law Review, vol. 81, no. 3, 1983.
See Anthony D'Amato "Is Equality a Totally Empty Idea", for an opposite view, Chemerisky.

50
Being formal, universalizability may be characterized as an empty requirement but its consequential
merit should not be underestimated. For it provides a minimum standard of justice. A disputant
will consider himself unjustly treated if a decision in a former case concerning a situation
indistinguishable from his, was arrived at favorably for his counterpart, while the decision in the
present case comes out unfavorably for him.

There is thus no doubt as to the moral value of this formal requirement. It helps avoid the
phenomenon of special pleading, or the propensity of an individual to make an exception for himself
when considering the moral correctness of a given course of action. In other words, it allows him to
assess the circumstances of the moral situation more clearly and rationally so as to arrive at a fair
and impartial decision.

Thus, impartiality is intrinsic to it. Special or unique considerations (particularly biased ones
referred to earlier) ought not to have any bearing on the decision, unless they themselves are ready to
be applied to similar situations, i.e. unless they are ready to be universalized. This thought is aptly
encapsulated in the dictum that the law is no respecter of persons; it applies to friend or foe alike, to
strong or weak, to rich or poor. Judgment is to be rendered strictly in accordance with the
considerations acknowledged relevant to the case.

Finally, there is a third merit to the decision being justified on the basis of a universal legal norm. It
provides guidance. By deciding a case this way, it announces beforehand that all relevantly similar
cases ought to be decided in the same way.

"Precedents are helpful in deciding cases when they are on all fours or at least
substantially identical with previous litigations. Argumentum a simili valet in legi.
Earlier decisions are guideposts that can lead us in the right direction as we tread the
highways and byways of the law in the search for truth and justice. These
pronouncements represent the wisdom of the past. They are the voice of vanished
judges talking to the future. Except where there is a need to reverse them because of
an emergent viewpoint or an altered situation, they urge us strongly that, indeed, the
trodden path is best."51

Apart from the above, there are many other advantages to clear guidance. Perhaps the most
important one is that it informs the individual of what to expect from the law, which allows him to
plan his affairs adequately. In Chapter VII, these other advantages will be further explored.

4. An illustration

As mentioned earlier, universalizability reflects actual judicial practice. It is the custom of judges to
express their opinions in subsumptive or universal form. If this is not immediately evident in their
writing, the opinion can be recast to reveal the subsumption.52 The major premise is in the form of a
51
Rosales v. Court of First Instance, 154 SCRA 153, 159 [1987].
52
This appears to be the case with respect to two recent Philippine Supreme Court decisions, Alonzo v. Intermediate
Appellate Court (150 SCRA 259 [1987]) and Marcos v. Manglapus, 177 SCRA 668 [1989]. The opinions
themselves contained pronouncements which appeared to dispense with the universalizability requirement. Thus,
Alonzo held: "In fact and this should be clearly stressed, we ourselves are not abandoning the Conejero and Butte
doctrines. What we are doing is adopting an exception to the general rule, in view of the particular circumstances
of the case." Marcos was even more explicit: "This case is unique. It should not create a precedent, for the case of
a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the
country and within the short space of three years seeks to return, is in a class by itself." See my discussion of the

51
universal legal norm, which consists of two parts, the descriptive and the prescriptive part. The first
part indicates the scope of the norm, which in turn includes (i.) the person or persons governed by
the norm; (ii.) the type of behavior involved; and (iii.) the conditions under which the norm applies.
The second part states what ought to or may be done, i.e. whether the type of behavior governed by
the norm is prohibited, required, permitted, and so on.53

As an example, take the complex legal norm, "All persons who smoke in public places in Marikina
City shall be fined." This actually consists of two related norms, the first directed to citizens and the
second to officials. Referring to the descriptive part of the first norm, (i.) all persons are governed by
the norm, (ii.) the act of smoking is the type of behavior involved, and (iii.) the situation of being in a
public place in Marikina the condition of application. The prescriptive part is a prohibition.
Referring to the descriptive part of the second norm, (i.) the appropriate officials are the persons
governed, (ii.) the act of fining the type of behavior involved, and (iii.) the situation of a person
shown to have been smoking, the condition of application. The prescriptive part is a requirement on
the appropriate official concerned, in this context the policeman or the court, to apprehend and fine
the person who violated the norm.54

The minor premises include the relevant facts of the case. Assume that Mang Jose smoked a
cigarette in Marikina City Hall. The decision in the case is that Mang Jose shall be fined, and this
follows as a result of the logical subsumption of the minor premise under the major premise.

The structure of the argument can be rendered in explicit final form as follows:

Major premise: All persons are prohibited from smoking in public places in
Marikina City and if they are found to have done so, they
shall be fined.

Minor premise: Mang Jose smoked a cigarette at the Marikina City Hall,
which is a public place in Marikina City.

Decision: Mang Jose is fined.

In summary, the requirements of rationality and universalizability are both formal requirements, and
hence devoid of content. Rationality insists merely that the justification for the decision be
articulated. Universalizability demands that the articulated reason be in universal form. The
content of the reason is left unspecified. In the next chapter, conventionality is introduced which
goes some way towards filling out some of that content.

IV. CONVENTIONALITY

Conventionality requires that the articulated reason, which subsumes the facts of the case as well as
the decision itself, must be grounded on the social sources of law, or for ease of exposition, on
source law. This entails three claims, none of which is truly controversial. Nonetheless all will be
explained and defended in this subsection. The first is the central claim, which contains the essence

matter in a paper entitled "Universalizability and Philippine Jurisprudence", The Paideia Archive,
http://www.bu.edu/wcp/Papers/Law/LawFern.htm, a paper which was delivered in the Philosophy of Law Division
of the Twentieth World Congress of Philosophy, held in Boston, Massachusetts, from August 10-15.
53
G. H. Von Wright, Norm and Action, Ch. 5.
54
Not all prescriptions to officials are mandatory; some are permissive.

52
of the requirement of conventionality. It insists that the source law provide the grounds for
identifying the content of adjudication (and of law). The next two claims are merely subsidiary and
complete the requirement. The second asserts that source law can be identified, and the third
indicates the variety of ways in which the content of adjudication and of law may be grounded on
source law.

The essence of the requirement of conventionality is illuminatingly captured in a recent Philippine

Supreme Court decision involving the custody of a minor, where the Court gratefully acknowledged
the existence of a guiding convention, so that resort to one's sense of justice was rendered
superfluous: "Happily, unlike King Solomon, we need not merely rely on a 'wise and understanding
heart,' for there is man's law to guide us and that is, the Family Code."55

By the sources of law, I mean what Prof. Raz defines as social sources. What these sources are, their
identity is not controversial and is discussed in the second claim. Natural lawyers and legal
positivists alike take them to be legislative statute, judicial precedent and custom. Prof. Raz has
advanced that by means of them the law's existence or validity is determined and its content
identified. This is an extreme claim, called the sources thesis, and the content of law so identified is
called source law.56 I do not make this claim, nor do I have to. But I make use of it, in advancing
the central claim of the requirement on conventionality.

This central claim, hardly controversial and much less so than the sources thesis, nonetheless
requires justification. It insists that the content of adjudication and necessarily also of law must be
grounded on source law. This is a claim much weaker than the social thesis. Whereas the latter
defines source law as the law, that is takes as law whatever can be identified from the sources purely
by means of social fact without resort to moral argument, the former insists only that the content of
law and adjudication be grounded on, and not be equivalent to, source law.

What may cause controversy about this central claim concerns how much of the content of law and
of adjudication should be grounded on source law. Do the social sources comprise all of the sources
or do there exist other considerations not grounded on the social sources which must be treated also
as sources, i.e., must be taken into account in specifying the content of law and of adjudication?
Whereas legal positivists are united that the social sources comprise all the sources, some natural
law advocates deny this, insisting instead on the existence of these other considerations which,
although non-social, are to them just as much sources of law.

The orientation of this claim is positivist, although some natural lawyers may find nothing
disagreeable about it. It affirms the conventional character of law, that law is the result of human
will and endeavor, the product of manmade institutions created specifically for the purpose of
making law. It stops short however from defining law purely in terms of convention or of social
sources. This is so for two reasons. First, the thesis is about legal reasoning and not about law, and
it is fundamental to the approach of this thesis that precise definitions of law are not necessary to
constructing ideal theories of legal reasoning. This point the next two paragraphs explain and the
entire chapter develops. Secondly, and this is in relation to the third claim, I do not want to make
conventionality too strong a requirement such that it immediately rules out as undesirable some
otherwise viable models of adjudication. There are still the fourth and fifth characteristics to
consider.

55
SCRA
56J. Raz, 'Legal Positivism and the Sources of Law', The Authority of Law, Oxford: Clarendon Press, 1979, pp. 39-
40.

53
A theory of legal reasoning is part of a complete theory of law. In fact it is that aspect of legal theory
which concerns itself with the law's content. As a result, legal theorists develop their theory of legal
reasoning on the basis of legal theory, and rightly so. It does not follow from this however that any
proposed ideal theory of legal reasoning cannot be constructed independently of a full-fledged theory
of law. After all, as will be made obvious later in the thesis, it is possible for a theory of legal
reasoning to be compatible with several theories of law, or for that matter for the same model to be a
model of both a positivist and a naturalist theory of law. Indeed, were this not possible, a proposed
theory of legal reasoning would be acceptable only to those who share the same theory of law.
When I claim therefore that a theory of legal reasoning is to be developed on the basis of legal
theory, I did not advance that the former must be justified ultimately in terms of the latter such that a
full-fledged theory of law is required. I claimed only that some results in legal theory are relevant to
adjudication and that the very same arguments used to justify a theory of law may be used to justify
a proposed theory of legal reasoning. Hence only some theorizing about law, and not a complete
theory of law, is necessitated in constructing a theory of legal reasoning.

I also did not mean to imply when characterizing legal reasoning in terms of the problem of the law's
content that the law's content comprises all of legal reasoning’s content. Legal reasoning is, more
accurately, about finding the correct answers to legal questions, and is not necessarily limited to
specifying the law's content. If the answer to a legal question can be found within the law’s content,
then it automatically is the correct answer to the legal question or forms part of legal reasoning’s
content. That simply is justice in accordance with law. But this relation proceeds only one way.
Although the content of law is automatically the content of legal reasoning, the converse relation
does not hold. The correct answer to a legal dispute, in other words, is not necessarily part of the
law's content. For the content of legal reasoning may go beyond the content of the law, depending
on the theory of the law which is espoused. It depends, in other words, on how much content is to
be ascribed to the law or, to put it in the perspective of this subsection, and in particular of the third
claim, how the content of law is grounded on or derived from the sources, if indeed all its content is
so derived.

This brings me to the second claim which, in a sense, is presupposed by the first. But since it is
subsidiary to and also partly dependent on the first, the second claim is discussed later. To explain
the first and central claim fully, it must be shown what source law is all about and whether it can
indeed be specified from the sources. The second claim sets out to do this. It entails first that the
sources of law be shown to be social sources, that is identifiable by means only of social fact, and
that from these sources, which are nothing but legislative statute, judicial precedent and custom, the
law's existence can be determined and content identified by the same means, purely by social fact
without resort to moral argument.

Finally there is the third claim. This claim does not so much depend on the first claim, but develops
it. It indicates the variety of ways in which the content of law and of adjudication may be grounded
on the source law, of which being identical to it presents only one possibility. This claim is weak
and is consistent with some natural law views. It is possible, in other words, for the content of law
which is grounded on the sources necessarily to be a moral one. For the requirement does not
specify precisely how that content is to be grounded on the sources. The manner of derivation, in
other words, may be such as to require the law to have a moral content.

The third claim specifies therefore the different types of derivations from source law to the content of
both law and legal reasoning. Some of them are purely positivist derivations while others are
compatible with natural law theories. Only one type of natural law model, to be specified later, is
eliminated by this requirement. Conventionality and the first two requirements are not sufficient to

54
determine which among the promising naturalist and positivist models are ultimately viable or not.
It takes two more requirements of the proposed model to achieve that.

A. The First or Central Claim

The central claim of the requirement of conventionality is that the content of both law and
adjudication be grounded on source law. In other words, if a certain content is not somehow
traceable back to or derivable from the sources, in a rather 'loose' sense of 'traceable' or 'derivable'
which will be explicated by the third claim, then such content cannot be considered as part of law or
of adjudication.

This claim, although not truly controversial, being weak and compatible with various theories of law
including naturalist theories, still requires justification. It makes presuppositions about the nature of
law and of jurisprudence. These presuppositions will be explored and developed in providing the
justification for the central claim. But this will mainly be in the form of general remarks, sufficient
only to justify the claim, as there is no need for a full-fledged theory about law.

The ingredients for the justification of the central claim are as follows. That the content both of law
and of adjudication must be grounded on the sources of law is the consequence only of shared,
uncontroversial truths about the law.

That the law has sources is a result of its social and institutional character. It is a truism that law
tells men how to behave or consists of standards that guide their actions. And it is part of the
function of adjudicative institutions to pick out these standards in applying the law. This is as true
for primitive societies as well as for sophisticated ones. In primitive societies, the courts in resolving
a dispute may conclude that these standards are to be found in custom or a shared morality. In
more sophisticated ones where greater emphasis is placed on spelling out these standards for clearer
and more effective guidance, the courts turn to the pronouncements of law-making and law-applying
institutions, like themselves, for his guidance. Hence, however primitive or sophisticated the law (so
long as society is governed by it), the courts know where to look to find law or know how to identify
the sources from which the legal standards applicable to the case are derived.

B. The Second Claim

The sources are identified in terms of the practice of the courts. An outsider looking in at the court's
behavior can observe a judicial practice or custom. From an external perspective therefore, a rule or
rules can be formulated describing it. From the internal perspective on the other hand, the attitude
of the courts that the practice ought to be complied with can be discerned. The ingredients that
transform a practice into a binding rule are thus in place.57 Some sort of rule of recognition can be
formulated,58 one which may be used to identify by means of social fact the sources with which the
law's existence is determined and content identified, as well as for determining the law's existence
and for identifying the law's content.

1. The Sources of Law

For a source of law to be a social source, three criteria need to be met. The source, first of all, must
itself be capable of being identified purely by social fact. The source must be capable, secondly, of

57
Hart, The Concept of Law, Oxford: Clarendon Press, 1961, pp. 79-88.
58
Ibid., p. 92

55
determining the existence and, thirdly, of identifying the content of law by the same means. In the
previous section, while justifying the central claim, I have already indicated how sources in general
meet the first criteria. It remains in this section to specify in detail how each source satisfies all three
criteria.

It does not follow, however, that I am committed to the sources thesis, that the source law or the law
thus determined from the sources defines the law. Rather I am committed to the requirement of
conventionality. This does not mean that all law is source law, only that the content of law and of
adjudication must be grounded on source law. Hence it still is necessary to specify source law.

a. Legislative statute

Legislative statute represents a readily identifiable source. If a law-making body exists, courts are
under a duly to apply the statutes it enacts and this is reflected in their practice.

As to the legal existence or validity of any statute, this too can be seen to be determined by social
facts, i.e. by the facts that establish the statute's compliance with certain prescribed procedures
governing enactment. This is as true for ordinary legislation as for the constitution, which, in
countries like the United States and the Philippines, enjoys a special prominence in that it is
embodied separately in a single written document and insulated from easy or frequent change by
requiring a cumbersome procedure for its amendment.

The existence of evaluative legal standards governing the law's validity does not affect the claim that
the validity of law is determined purely by social fact. The due process clause, for example, found in
both U.S. and Philippine constitutions is an evaluative standard. It has been given a sweeping
interpretation in both American and Philippine courts so as to invalidate legislation deemed to be
violative of an individual's fundamental rights. Such an evaluative standard, being identified by
social fact, remains part of the law. That part of its content which can be identified non-evaluatively
is law. Only the evaluative considerations involved in applying that standard is not law. One must
distinguish, in other words, between the process of applying that standard which involves evaluative
reasoning and its actual application which is a matter of social fact. Hence, social fact alone
determines the validity of statutes tested against this standard. Prior to the test, the statute is
presumptively valid and it is so by virtue of social fact, the fact of previous legislative enactment. If
declared either constitutional or unconstitutional by the court for having met or failed to meet the
due process standard, the statute's validity or invalidity is again due to a social fact, the decision of
the said court. Hence the existence of such standards does not refute the claim that the second
criteria can be meet.

As to the third criteria, statutes in contrast with the other sources are more susceptible to non-
evaluative interpretation. This is primarily because they are in fixed verbal form. And since they are
general in scope, prospective in application, and intended to apply to all within their ambit, they are
often the product of very careful draftsmanship which provide clear guidance. Still, it is often argued
that the complete meaning of statutes may not be capable of determination without lapsing into
moral argument. Firstly, the statutes itself may contain morally loaded or evaluative terms.
Moreover, interpretation may proceed in a variety of ways, and if the chosen means of interpretation
is not itself evaluative, the choice between the means may be dictated by moral considerations. A
statute, after all, is not always interpreted solely by the plain meaning of its terms, since that is at
times taken as providing inadequate or even mistaken evidence of the legislators' intention. On the
contrary, it may be claimed that the legislator's 'true' or complete intention is reflected not simply in
the wording of the statute but also in the secondary evidence like the records of parliamentary
debates, the social and historical context or a legislator's unofficial remarks, etc. Consequently, the

56
statute may be construed in terms of a specific actual intention (the records indicate that the
legislators actually had his particular instance in mind), an assumed one (although the legislators did
not actually have this in mind, they would have included it within the statute's scope simply because
it is so very similar to those things they had in mind) or a general one based on the purpose or goal
the statute was intended to achieve. All of these approaches to interpretation involve going beyond
the wording or plain meaning of the statute, and necessitate moral argument.

Again this does not refute the social thesis. Source law as defined is confined to the content of the
statute, which can be identified non-evaluatively. That apart of a legal standard, in other words,
which has been successfully communicated non-evaluatively is law. This does not mean however
that the judge is not to employ any of the above-mentioned evaluative methods in identifying the
source law. That is again to confuse the process of judicial or legal reasoning with its product, the
law. Nor does it mean that whatever has been expressed in away that requires no evaluation for
determination of its meaning is law. The law in this case has been successful in communicating its
meaning non-evaluatively. That includes all content which allows itself to be identified without
resort to moral argument, even if the same content may be communicated by other means.

b. Judicial precedent

Courts adhere to the practice of judicial precedent, that is of binding themselves to the decisions of
previous courts. Hence, precedent is a source of law. Moreover, social facts alone determine
whether a decision is such that a future court is bound by it. Is the decision, for example, arrived at
in accordance with correct procedures, the outcome of an official case, delivered by an authoritative
court, etc.? Finally, the identification of what exactly is binding in a decision (otherwise known as
the ratio), although open to conflicting interpretation can be achieved solely by a consideration of
social facts. As to these three issues therefore, precedent as a source is just like legislative statute; it
can be treated as a social source.

However specifying the content of precedent involves more leeway in interpretation than specifying
the content of a statute, and hence a greater likelihood for evaluative considerations to figure in the
interpretation exists. For there is neither a fixed verbal formulation of the ratio nor is there a single
agreed-upon method for determining it. Moreover, insofar as the ratio serves the function not only
of supplying the reason for the decision but also of applying to all relevantly similar future cases, the
ratio always appears subject either to a narrowing or a widening as future cases arise. Since the
possible fluctuation in the ratio's scope often depends on analogical reasoning which involves choice
as to what similarities ought to be taken as relevant or not, considerations of moral relevance appear
unavoidable. This fluctuation in scope has also led to some startling views concerning the ratio.
One of the more plausible ones, Prof. Stone's, claims that far from there being a single ratio attached
to a given decision, there exist "a range of alternative rationes decidendi competing inter se to govern
future situations and as among these, only future decisions will show which is binding".59

The fact that determining the scope of the ratio involves a wide latitude in interpretation and the
inevitable use of moral argument in analogical reasoning should not detract from the more
conventional view of there being a single ratio subject to the effects of distinguishing and overruling.
A version of this has been articulated by Prof. Raz to describe the practice of judicial precedent in
England.60 The ratio is simply the reason for the decision, what the court in its opinion "can be said

59
J. Stone, Legal Systems and Lawyer's Reasonings, 274.
60
'Law and Value in Adjudication', The Theory of Law, 1180-209.

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to have held a presented itself as holding".61 That encapsulates what is binding in the decision and is
to be used to determine what has been successfully communicated by the court non-evaluatively.
Hence the content of precedent can be determined purely by social fact.

This notion of the single ratio is able to account for the phenomena of the latitude in interpretation
and the use of analogical reasoning without jeopardizing the social thesis. Latitude in interpretation
is inevitable in a method which allows the ratio to be subject to distinguishing and overruling. Hence
the ratio of a given case is gradually modified and even reformulated as it is applied to future cases.
This does not disputes that a single ratio exists by virtue of a social fact, the judicial decision, whose
content can be identified by social fact. The ratio can be put, as it often is and as commentators like
to do, in the form of a rule which provides guidance in future cases, prescribing that under certain
conditions a certain decision should result.

The use of analogical reasoning is seen in a different light when the existence of a single ratio is
acknowledged. No longer is adjudication an instance of pure analogy, that is a matter of comparing
the earlier with the later case, with the court enjoying unbounded freedom to select exactly which
factors in the earlier case are to be considered relevant to the later case. With the ratio the court has
already determined beforehand which factors are taken to be relevant. Thus it is only when these
relevant factors are not shared by the later case, that situation when the ratio is to be extended and
not to be applied or distinguished (not in its 'tame' form),62 that analogical reasoning is resorted to.
In this situation, the rationale for the ratio of the earlier case is considered to determine whether the
similarities have sufficient moral relevance to decide the two cases similarly.

Hence the role of analogical reasoning is not as pervasive as earlier believed. But this does not mean
that moral argument is not involved in judicial precedent, even in cases of applying the ratio. For the
underlying rationale of the ratio is considered when determining its scope. Moral argument
therefore is part of the reasoning process in judicial precedent, and indeed it ought to be part. But
this does not defeat the social thesis. The process of reasoning and its product, the law, again should
not be confused. Only that aspect of the ratio which can be identified without resort to moral
argument is law.

c. Custom

Custom (or even a shared morality) share, with statute and precedent, the same answers to the three
issues. First, custom as a source is identified by social facts, the judicial practice. This may happen
in two ways, either directly and implicitly or derivatively and explicitly. The former is precisely the
way that the practice identified both statute and precedent as a source. The courts' practice might be
constantly to cite custom as a reason for deciding a case with the effect that a binding rule or
obligation to apply custom is general. This obligation may only be general and cannot be limited.
Since primitive societies lack legislatures, appeal to custom may be pervasive and the obligation
created general. On the other hand, if the obligation is limited, i.e. the judicial practice is to appeal
to custom only in specified areas of the law this would actually be an instance of derivative
identification. Precedent, rather than custom, is the source. Explicit and derivative identification,
on the other hand, needs the intercession of either statute or precedent. The Swiss Civil Code, for

61
Raz, 'Law, Morality and Authority', The Monist, 68 (1985), p. 313.
62
Raz, 'Law and value in Adjudication', The Authority of Law, Oxford: Clarendon Press, 1979, p. 185.

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example, cites custom as a source when "no prescription is contained in the law".63 Similarly, a
binding rule or principle found in precedent may explicitly declare custom to be a source.

Secondly, the existence of a custom (or a shared moral rule can be determined by observing the
behavior of members of society. Admittedly, mere convergence of behavior is not sufficient to
establish the bindingness of a customary rule. Something more is needed for the rule to create an
obligation. Since the analysis applied as to the existence of a judicial custom is based on the analysis
of custom in general, this can be used to show when a customary rules becomes binding. But the
fact that a customary rule binds members of society does not automatically mean that it binds courts.
These hold only if a general obligation for courts to apply custom exist. The previous paragraph has
demonstrated this is possible.

The difficulties in interpreting the customary rule include an additional obstacle not found either in
statute or precedent. Unlike statute but like precedent, the customary rule may not be in any fixed
verbal form; but unlike both statute and precedent, it may not be in any form at all. This does not
mean that the rule does not exist. It might be called an implicit rule; it exists and it binds even if
unarticulated.64 Members of society behave in conformity to it and behave as if an explicit rule
required such behavior. Moreover, if pressed, they very same members may be able to articulate
rough versions of the rule, although no authoritative version of it may exist. This added difficulty in
interpretation creates an extra opportunity for moral considerations to be consulted.

But this does mean that the content of customary rules cannot be determined purely by social fact.
Members of society would exhibit agreement in most cases when a certain instance falls under the
ambit of a rule or not. This is done without resort to moral argument. Admittedly, there are the
penumbral or problematic cases, when it is debatable whether the cases falls within or outside the
ambit of the rule, and appeal to moral considerations is required to settle the issue. That simply
belongs outside the law or is not source law, and does not deny that the rule has a content, which
can be identified purely by social fact.

d. Morality

Is morality a source? I argue that it is not. This answer can best be appreciated by analyzing in turn
the two types of obligation attached to applying morality, whether general or limited, together with
the two ways of identifying morality as a source, whether derivative or direct. Since this exhausts all
the possibilities, an argument showing there to be no case in which morality can be considered a
source, establishes the point.

Take a general obligation first. This may be created derivatively, e.g. a statute requiring all cases to
be decided justly or morally is enacted, or directly, e.g. a judicial practice of constantly appealing to
morality exists. In the case of the former, morality is not the true source since it is derivative, but the
statute is. In the latter, the justice rendered is no longer justice in accordance with law but justice
plain and simple. No external guidance is provided, just the judge's personal view of what is just or
moral. Morality cannot be considered a social source in this general sense.

63
The appropriate provisions reads: "This law is applicable to all problems for which it contains a rule explicitly or
by interpretation. If no prescription is contained in the law, the judge shall decide according to custom and, where
this too is lacking, according to the rule which he would establish were he a legislator."
64
M. Black, 'The Analysis of Rules', Models and Metaphors: Statutes in Language and Philosophy, 100.

59
I am left with limited obligation. Take derivative identification first. It appears as if morality ought
to be taken as a source if it has been explicitly incorporated into a statute or a precedent. For just
like these sources, its existence can be determined by social fact. This occurs quite often; statute and
precedent are replete with moral standards, like the due process clause in the U.S. and Philippine
Constitutions as interpreted by the courts, the standards of a good father of the family or of the
humane and reasonable man, the prohibition against cruel and unusual punishments, to mention but
a few. The argument goes that if statute and precedent are sources, then why not also the morality
explicitly incorporated in them. The simple counter to this argument is that since morality is merely
incorporated and thus derivative, it cannot be the source. Rather, it is the incorporator, either statute
or precedent, which is the source and not morality.

Finally, assume limited obligation is combined with direct identification. This is not possible. For
this means that a binding judicial practice of appealing to moral considerations exists in certain
specified areas of the law. If so, the same conclusion arrived at when considering limited, directly
identified custom holds; this is nothing but precedent. Hence, a limited obligation to apply morality
cannot be direct; rather it must be derivative. In no case can morality be considered a source.

C. The Third Claim

The requirement of conventionality is not a strong requirement. It fails to commit me to any specific
thesis about the content of law or to any specific model of adjudication based on such a thesis. In
fact, I will demonstrate in this section how four different theses, three of which are borrowed from
Prof. Raz,65 satisfy conventionality. These four theses correspond to four different ways, in other
words, in which the content of law can be derived from the social sources. Models of adjudication
based on them indicate how the content of adjudication is also derived solely from social sources,
morality being one of its sources, it fails to satisfy conventionality.

This chapter does not attempt to determine which among the four theses is the best or correct
characterization of law. Undoubtedly, each thesis can be defended and justified by substantive
argument, in the same way that the Sources Thesis was justified in the previous section. But this
work focuses on adjudication rather than law, and there is no need to decide the legal issue. The
adjudicative issue, on the other hand, needs to be and will be settled, but not in this chapter. This
will be done in the various chapters dealing with theories of legal reasoning, such as Chapter VIII on
positivist legal reasoning, Chapter XIV on naturalist legal reasoning, Chapter XVIII on Social
Science Theories of Legal Reasoning, and Chapter XXIII on Radical Theories of Legal Reasoning.

The debate between positivist and naturalist models of adjudication will partly be discussed here and
actually awaits Chapter VIII and Chapter XIV. Theories are positivist or naturalist depending on
the thesis about law upon which it is based. It does not follow from this that one theory cannot be a
theory of more than one thesis about law. Hence it is possible for the same theory in the sense of
having the same content to be built on both a naturalist and a positivist thesis. Conversely, it is not
the case that only one theory corresponds to each thesis. A thesis about the law's content and
theories of legal reasoning based on it are not connected in that strict way. Of this more will be said
in the chapters on legal reasoning mentioned above. It is necessary only at this stage to show how
different theses about law satisfy or fail to satisfy the third requirement, and how theories of legal
reasoning which satisfy conventionality can be constructed from the theses.

65
'Law, Authority and Morality' The Monist, 68 (1985), pp. 295-96.

60
The four theses are the Sources Thesis, the Incorporation Thesis, the Coherence Thesis and the
Purposive Thesis. The first three owe themselves to Raz's classification, while the fourth finds its
best exposition in Fuller's works.66 The first two are positivist theses, while the latter two are
naturalist. Brief mention will also be made of classical natural law theory to show how it is
incompatible with conventionality. Allow me therefore to proceed with an exposition of the four
different ways in which the contents of law and of adjudication can be derived from the social
sources, and how the content of classical natural law cannot be so derived.

A model of adjudication which subscribes to the Sources Thesis distinguishes between the content of
law and the content of the rest of adjudication. Compared to the other theses about law, the content
of law under the Sources Thesis is the most limited in scope. Its content is nothing but source law,
or law which is identified purely by social fact without resort to moral argument. How this
identification is done has already been quite extensively and elaborately explained. The rest of the
content is not determined by means of such a specific method. Although the remaining content still
is grounded on the sources, the precise manner of derivation is left to the discretion of the court.
The court, now appealing to moral argument, is duty-bound to arrive at the morally best resolution
of the case based on source law. Hence it may avail of any of the other ways in which content can
be derived from the sources, and may choose from among any of the three theses or indeed from
others how the content is to be derived.

A model of adjudication based on the Incorporation thesis67 also distinguishes between the content
of law and the content of the rest of adjudication. The content of its law extends more widely. It
includes source law and whatever is entailed by source law. Hence, whenever a moral standard has
been incorporated in a source, say statute or precedent, that standard and whatever it entails
becomes part of law. Since moral argument is required to deduce that content, it is not part of
source law. But the content of law under the incorporation thesis is not extensive enough to
incorporate all the content of adjudication. That remaining content again may be determined in a
variety of ways, in the same way that the content of models of adjudication based on sources thesis
may be variously determined.

Models based on the sources thesis and the incorporation thesis are positivist models. That is
obvious with regards to the Sources thesis, since the content of source law is identified without resort
to moral argument. Although moral argument is needed to determine some of the content of law
under the incorporation thesis, a model based on it is still a positivist one. The resulting moral
content of law is not a necessary feature of the law, since it depends on the incorporation of certain
moral standards in one of the sources, before it becomes part of the law.

The Coherence Thesis insists that the content of law consists of source law together with the morally
soundest coherent justification of source law. A model of adjudication which subscribes to it
therefore does not distinguish between the content of law and of adjudication. To it, they are co-
extensive. The content of law in other words is nothing but the content of the correct resolution of
the case, determined in terms of the morally soundest coherent justification of source law. Hence,

66 See, for example, 'Positivism and Fidelity to Law', Harvard Law Review, 71 (1958) pp. 661-69; The Morality of
Law, pp. 81-91, pp. 224-232; Anatomy of the Law, pp. 511-16.
67
See, for example, P. Soper, 'Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute' Michigan
Law Review, 75 (1977), pp. 511-16; D. Lyons, 'Principles, Positivism and Legal Theory', Yale Law Journal, 87
(1977), pp. 424-26; and J. Coleman, 'Negative and Positive Positivism', Journal of Legal studies, 11 (1982), pp. 139-
64.

61
law is a seamless web. The law's content extends and expands in accordance with coherence so that
no gaps are left, i.e., such that every case which requires resolution is covered by the law.

The Purposive Thesis claims that the content of law consists of source law together with the content
deducible from the law's purposes. This means that the content of every individual law, a set of
laws, and of the entire legal system is co-extensive with the law's purposes along those various levels.
The purpose may be explicit or implicit. Hence it does not have to coincide with the authority's
intentions, as is normally the case in made or enacted law; nor does it have to be explicitly
expressed. It may be implicit or understood from the context or situation like in customary law.
This distinguishes it from the incorporation thesis which includes as law only the content of moral
standards explicitly incorporated in source law.

It has more in common with the coherence thesis, but there are differences. Like the Coherence
Thesis, the content of its law is co-extensive with the content of adjudication and hence there are no
gaps in the law. This is because every case can be resolved by means of resorting to purposes and
the resolution of competing purposes, be they the purposes of an individual law, of a set of laws, or
even of the entire legal system. It is distinguished from the Coherence Thesis in two ways. First, it
asserts that the content of an individual law or even a set of laws is not so tied. In the case of
coherence law, the purpose of the law provides only one of the moral reasons which are to be
considered in constructing the morally soundest justification of the law. Secondly it is not as
committed to coherence as the Coherence Thesis is. It is only when a body of laws can be said to
have some dominant or ruling purpose purposes that coherence is subscribed to. Otherwise it is
possible under the purposive thesis for a compromise between competing purposes to occur in a way
that does not manifest coherence.

Needless to say, models based on the Coherence and Purposive Theses are naturalist models. Their
moral content is not merely a contingent but a necessary feature of law. The former claims that the
morally soundest justification of source law is an intrinsic part of the law, while the latter insists that
the law's purposes are automatically law.

The content of a type of natural law associated with classical natural law is not derivable from the
sources. This type of natural law is defined in terms of two characteristics, the commitment to the
existence of a moral order or reality, and a claimed connection between the moral and the legal
order. That connection is a necessary one, and is often expressed in terms of the dictum "an unjust
law is not law". The connection need not be a necessary one for the legal theory to be a natural law
theory, only for it to be one of this type.

The second characteristic is sufficient for the requirement of conventionality to be violated. In other
words, natural law theories which posses the second and not necessarily for the first characteristic
already fail the test of conventionality. When a necessary connection is required to exist between
the moral and the legal order, morality is taken as a general source. Every putative law must first be
tested against morality before it can be accepted as valid. It does not matter whether the morality
subscribed to is in terms of a moral reality or not. It may, for example, merely be a conventional or
a personal morality, but morality is still a general source.

Only the second characteristic is sufficient for the requirement to be violated. A legal theorist may
be committed to a moral order or reality, and still subscribe to thesis about law which meets the third
requirement. For example, an adherent of the incorporation thesis may determine the content of
legal standards expressed in moral terms by means of a theory of meaning committed to moral
kinds. In this instance, morality is taken only as a derivative source. The ultimate source is one of

62
the social sources, statute or precedent, which contains the moral standard. For that matter, even an
adherent of natural law like Prof. Finnis who is not a naturalist in the usual sense, adheres to a thesis
about law which meets conventionality. Although he subscribes to the existence of some sort of
moral reality, in terms of seven self-evident, basic goods, he is not committed to the existence of a
necessary connection between the moral and the legal order. Consequently a law may be valid, even
if unjust. He only claims that legal systems with just laws provide the focal meaning of law, and
unjust legal systems are its peripheral meaning. His thesis about law, though a natural law theory,
satisfies the requirement of conventionality.68

IV. CONCLUSION

The first three characteristics have been specified. This brings me to an analysis of formal models of
adjudication to be conducted in the next chapter, before I tackle the legal positivist theory of legal
reasoning to be done next.

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REFERENCES

Fernando, Emmanuel Q., Legal Theory, Legal Reasoning, and Philippine Jurisprudence, to be published
by U.P. Law Center.

68
J. Finnis, Natural Law and Natural Rights, 276-277.

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