CHAPTER 9 POLITICAL LAW:

REFORM, REVOLUTION, AND RESISTANCE THE NEO-CLASSICAL PHILOSOPHERS

The term “right”

-a modern concept 1) brought about by libertarian revolutions 2) inspired by reformist philosophers

who believed in a government by consent such as JOHN LOCKE to the American Founding Fathers and
JEAN JACQUES ROUSSEAU to the French philosophes

Social contract

-the mutual transferring of natural right to the Sovereign

-pact among free men for the public good

-a share of liberty must be given up to protect the rest

-theories about social contract were to replace the diving rights theory that justified the absolutism of
monarchies

i. Signing of the Magna Carta by King John of England

ii. Glorious Revolution in England

iii. French Revolution

iv. American Revolution

v. Philippine Propaganda Movement of ilustrados

England’s King John

-the tyrant king in the legend o Robin Hood

-was forced to sign the Magna Carta or the Great Charter after the revolt of barons who owed money
to pay hefty taxes for the financial support of his failed campaigns

-excommunicated for directing church affairs including the appointment of bishops

-rights chartered:

i. Guarantees against arbitrary punishment

ii. Protection of the church from government interference (developed into separation of
Church and State)

iii. Access to justice by trial of jury

iv. No taxation without consultation

Right to no taxation without consultation

-resurfaced in 1767 when the British Parliament levied taxes on imports of tea which was a valuable
commodity at that time (resulted to The Boston Tea Party revolt)

The Boston Tea Party revolt

-escalated into the Declaration of Independence by American colonies in 1776 after they failed to
convince the British Crown to repeal the act

-authored by Thomas Jefferson

-conceived the elements of a legitimate government based on the affirmation of the natural rights of
man

i. All men are created equal by their Creator with certain inalienable rights (Life, Liberty and
pursuit of Happiness)

ii. To secure these rights, Governments are instituted among Men, deriving their just powers
from the consent of the governed.

iii. Whenever any form of government becomes destructive of these ends, it is the right of the
people to alter or abolish it and to institute new Government

The Malolos Constitution and the 1935 Constitution adopted the American Bill of Rights

“Pilosopo Tasyo”

-a character in Jose Rizal’s Noli Mi Tangere who exposed the critique of the French monarchy and of
the privileges of the Catholic Church

-this character was based upon Jose Rizal’s avid reading of Voltaire’s critique of French monarchy

Principles of Enlightenment philosophers incorporated as articles in Rizal’s proposed Rights of Man

1) Equality of rights

2) Right to property

3) Sovereignty from the people

4) The harm principle

5) Freedom of belief and expression

6) Presumption of innocence

7) Due process

8) Strict but just punishments for the guilty

9) Proportionate taxation

10) Public accountability

11) Separation of powers

12) Security, peace and order

Social Contract Theorists

-do not explain the origin of society through the divine rights of kings or through biblical account of
salvation history

-believe that the fundamentals of society were brought about by convention and agreements, tacit or
explicit, also called as the “social contract”

Niccolo di Bernardo dei Machiavellli (or Machiavelli)

- a classic power pundit

-son of an Italian lawyer

-appointed as diplomat, administrator, and chancellor of the Florentine Republic in 15th century in Italy

-Papal Adviser to Popes Leo X and Clement VII

-said “politics is like a game of chess”

-said “popular governments are still superior to those of princes”

-said “in glory and in goodness the people are far better”

-said “religion is useful in animating the people, in keeping men good, and in shaming the wicked”

-blamed Christianity’s emphasis on the after-life for the fall of Rome

-wrote The Prince

The Prince

-was written for rulers in the making in a very unstable society

Machiavellli tips on how to rule, given the non-ideal conditions of decadence and disintegration

1) If the ruler cannot be good always, he must at least pretend.

2) There are two ways of fighting: one by law, another by force

3) “black night principle”: The leader should himself shower the favors but should delegate the punishments.

4) It is good to be both loved and feared. But if the leader has to choose, better be feared than loved, but not
be hated

5) Punishments should be done all at once so that seldom felt will be less remembered.

6) A ruler must be shrewd and swift to match the inconsistency of the people and the political environment.

7) The end justifies the means.

The Christian standard of behavior

-is a means to securing peace

What Machiavelli did not like was Christianity’s emphasis on:

1) Humility

2) Lowliness

3) Resignation

4) After-life (not included in the enumeration but might be included in the test)

What Machiavelli wanted:

1) Empowered leaders who could bring terror to the crooked

2) Order and rights to the people

3) To clear the way for a strong and virtuous Republic

Singapore’s LEE KUAN YEW owed his leadership style to Machiavelli:

-”Between being loved and being feared, I have always believed Machiavelli was right. If nobody is
afraid of me, I am meaningless.”

Thomas Hobbes (sovereign immunity)

-argued in the Leviathan that life was originally “poor, nasty, brutish, and short,” in a primitive state of
war of every man against every man

-lived in Reformation England torn by religious wars and family feuds which explains this worldview
“Fear and I were born twins”

-his perspective pierces into an ugly reality that holds true even today (e.g. The way we guard against
each other, even from our own families, lace our valuables under lock and key)

Why this continuous mistrust and suspicion of the other remain even in our own households?

-Hobbes: it is because we humans are in constant fear of theft, invasion, violence and death.

-due to scarcity of goods and individual vulnerability, everything was up for grabs and everyone can
subdue anyone.

-eventually men made alliances, decided to act collectively and agreed to call into law enforcers as
people wanted to keep themselves safe and peaceful.

-instead of taking the law into their hands, people surrendered their original freedom to the rule of
their rulers

Sovereign

-either be an individual or a group of individuals

-holds the power from the people, the “commonwealth” and not for his own good but to maximize
the interest of all

-this structure runs risk of abuse but according to Hobbes: “-the injustices of a ruler are better than
the injustices under the state if nature”

-in modern times no longer identified with a monarch but with the state itself

-the doctrine of state immunity from suit in the 1987 PH constitution stemmed from this view that
the sovereign is absolute and that there can be no legal right as against the authority that makes the
law on which the right depends

Thomas More (republicanism and the family as the basic unit if society)

-English Chancellor of King Henry VIII

-while also believing in the corrupt “fallen” nature of man, arrived into a different conclusion from
Hobbes

-precisely because man is corruptible, it will be too risky to put all sovereignty into one man’s power
in perpetuity

-one of the first to propose that the Sovereign must be elected by the people so that the electorate
can check and terminate their rulers’ regime for abuses

-believed in Republicanism

-a favorite of Henry VII before he was sentenced for refusing to acknowledge the king as head of the
Church of England to allow him to divorce his wife, Queen Catherine

-More said the ground was sexist: Catherine’s failure to give birth to a male heir

-believed in relative divorce (Philippines: legal separation)

-Catholic patron saint of lawyers

-as a father was affectionate to his son and 3 daughters

-believed in equal education of the sexes

-in his poem “Twelve Properties or Conditions of the Lover,” More outlined the devotion that comes
from public service like a person in love.

-the Sovereign must consider the people as part of his own body

-suggested a government like the Roman Republican Senate, where people could consent on
bestowing and withdrawing sovereignty, and leaders could involve themselves into a free discussion
on the matters of the State

-wrote in Epigram 121: “any man who has command of many men owes his authority to those whom
he commands: he ought to have command not one instant longer than his subjects wish.”

The Familial State

-In “A Treatise on the Passion”, More said that because of the human tendency to err, human beings
have a special need for government
-the first government in a natural society is FAMILY (where we learn the virtues to be exercised in a
larger civil society)

-in his “Utopia”: a LARGE FAMILY is the basic unit of society

-to prevent idlers, family time is structured.

-in his “Latin Poems”, More argued that a good ruler would be like a father to his children, rather than
a master to his subjects (pater familias or due care of a good father of the family)

The Rule of Law

-although no law is perfect, lawlessness would make people rush into every kind of crime

-in “Richard III,” More wrote: “unlimited power has a tendency to weaken good minds, even in the
case of gifted men.”

-in “Utopia,” More advised: “What you cannot turn to the good, you must at least make as littel bad
as you can”

-to prevent the abuse of law-making, there must be few laws but more conventions and regulations,
therefore advancing “less government”

-in “A Dialogue Concerning Heresies,” More argued: “that apart from human law, there is a natural
law written in the human heart that anyone can know by reason for internal guidance”

-one can ignore this law of conscience only for a limited time because violating one’s conscience will
cause grief

-man is free to follow God according to his conscience but it is also his duty to have an “educated
conscience” -- the virtuous training to seek what is good even if this would entail labor, self-correction,
and pain

-in “Utopia,” More argued: “legalizing an unjust act does not make it right”

Auguste Comte

-in his “Course on Positive Philosophy” agreed that “the true social unit is the family”

Inalienable Rights

-Provided under the American Declaration of Independence:

1) To life

2) To liberty

3) Pursuit of happiness

-while Hobbes emphasized the irrational in man, Locke stressed that man has reason and conscience,
which makes him a self-determining free individual

Civil Rights
-rights that would not otherwise exist without the promulgation of laws brought about by the social
contract

-should protect and supplement Natural Rights through written laws

John Locke

-tabula rasa or human mind is a blank canvas

-there are universal natural laws not because human beings have innate ideas or knowledge of these
since human minds are blank canvasses

-proposed that the legislative, executive and federative powers must be separated in a “tripartite
system” to obtain a balance of power

-opted for a parliamentary form of government, majority rule and popular representation

Doctrine of non-delegation

-sovereign power cannot be transferred to those whom the people did not entrust this power

JEAN JACQUES ROUSSEAU

-conceived man to be originally good and free in his idea of the “noble savage” (application in the
presumption of innocence)

-most famous for saying in his “The Social Contract”: “man as born free but everywhere he is in chains”
(meaning man is fundamentally good, but society can bind and condemn people in unjust ways, yet
society itself can make man free again)

-believed that the natural instincts of a child are good but are eventually repressed by society’s
artificial constructions, leading to alienation, falsehood and hypocrisy

-in “Emile,” proposed that child be educated to cultivate, not repress his self-expression through
sympathy and love in a familial rather than in a school environment (home schooling)

-more than an education of intellect, there should be an education of the senses

The General Will

-in Rousseau’s “The Social Contract”: each individual is considered part of the whole society, the
collective body. It is a moral body where citizens share in the sovereign power

-social contract is there to enhance man’s freedom and this is realized through democratic institution
that allow people to vote

-social contract creates a new corporate entity endowed with a “general will” as an outcome of a
democratic process

-the general will should come from all to apply to all (it is important that legislators and citizens have
shared values and identity of interest)

-the general will is not the will of all or the will of the majority, but the common interest expressed
through laws
JOHN STUART MILL (The “mill” of happiness and liberty)

-member of the English parliament who wrote in “On Liberty,”: “the only purpose for which power
can be rightly exercised over any member of a civilized community, against his will, is to prevent harm
to others (HARM PRINCIPLE)

-man is free to pursue his happiness as long as he does not harm others

-had nervous breakdown for too much study

-became the second husband of the feminist Harriet Taylor Mill and grandfather of the
Nobel-laureate, mathematician-philosopher Betrand Russell

Freedom of Action and Thought

-Mill said: “that a person cannot rightfully be compelled to do or forbear because it will be better for
him to do so, because it will make him happier, because, in the opinions of others, to do so would be
wise or even right”

-the contrary is involuntary servitude

-freedom of action must be distinguished from freedom of thought: whereas one’s actions can be
interfered with if a person becomes a nuisance to others, he is free to believe at his own cost
whatever he wants to believe

-freedom of thought loses its immunity from law under circumstances when the form of expression
has become “a positive instigation to a mischievous act”

Utilitarianism

-is the philosophy of pursuing pleasure and avoiding pain, for the “greatest happiness of the greatest
number”

-Mill’s version considers the kind or quality of pleasure and not just its quantity or intensity (quality
over quantity)

-”the pleasures of a swine are not the happiness of a man”

-utility must be grounded on permanent and progressive interests and virtues of man

-by “right” means something that society has an obligation to protect under a general utility. In terms
of quantity, the law must prefer what gives happiness to the most; and in terms of quality, the
satisfaction of man’s higher faculties is preferable

-Mill: “men lose their high aspiration as they lose their intellectual tastes, because they have not time
and opportunity for indulging them”

-the essence of law: to punish those who break this right since it is fundamental for man to seek his
own happiness

Being Useful

-Mill claimed that once an obligation is assigned to a person, he can be punished for a “breach of
duty”
-Mill defined duty as :a thing which may be exacted from a person, as one exacts a debt

-without this imperative duty, society must bear with any “constructive injury” that a person may
happenstance create in exercising his liberties, in favor of the greater good of human freedom

-a perfect obligation: one with a correlative right that can be demanded by others

-an imperfect obligation: has no corresponding right but a mere beneficence or generosity that one is
not bound to practice

-LEGAL PATERNALISM: against Mill’s theory; views that laws can be justified if they prevent a person
from harming himself

CIVIL DISOBEDIENCE AS A DUTY

-HENRY DAVID THOREAU: advocated civil disobedience not only as a right but as duty to pro-actively
change an oppressive system (e.g. people power revolution”

-the feminist Emma Goldman called Thoreau as “the greatest American anarchist”

When Revolution is Right (and Ripe)

-Thoreau: “the right to refuse allegiance to, and resist, the government, when its tyranny or its
inefficiency are great and unendurable

-to successfully resist the government, the individual must make himself self-sufficient and less
dependent on government provisions.

-for Thoreau: “real progress is the succession of governments from absolute to limited monarchy,
then from limited monarchy to democracy, then form democracy to organizing the rights of every
man from which the State derives authority”

CHAPTER 10 LABOR LAW:

SOCIALISM AND COMMUNISM

-socialism (social justice)

-communism (everything is a commune)

-with the rise of the factory ethic in the 19th century, the situation of workers, including women and
children, was to work for endless hours in unsafe plants or farms in hand-to mouth existence:

1. Industries competed for capital with maximum returns and minimum costs to employer

2. Work was unregulated, mechanical, and slavish

3. Labor was too cheap that workers could not even afford the very products they produced
Karl Marx

-father of Communism

-a Jewish outcast whose 7 children did not survive to adulthood due to poverty

-made a living from journalism

-in “Communist Manifesto,” Marx wrote about the rising “specter of Communism”

-inverse relation of supply and demand: the more the laborer works, the more harvests, the more
yield, the more supply available, the less value for his output which he does not even own and has no
means to own

-in earlier times, everyone is responsible for producing just what his family needs (food, shelter, etc)
within the tribal system of common ownership over natural resources. But as SOCIETIES FORMED,
people began to SPECIALIZE in their skills, engaging BARGAINS AND BARTERS, and GAINING CONTROL
of particular trades and ownership. A PERSON’S JOB OR SKILL also began to determine the way one
lives, dresses, eats, and socializes, CREATING THE FORMATION OF SOCIAL CLASSES, along with its
discriminations, entitlements, and opportunities for exploitation.

-once, people valued workers for their craft, vital to community’s survival and workers found personal
worth in their labor. As labor became specialized, the worker became a MERE COG in the system.

A perfect society: is a return to social ownership (Socialism) through nationalization of economic

resources (land, etc)

VLADIMIR LENIN

-wrote The State and Revolution

-Socialism, which is the conversion of private to public property, is just the first phase of communism

-in a COMMUN, common ownership would obliterate entitlements and difference of classes and
there would eventually be no need for the State or for laws as the people imbibe the rule that “from
each according to his ability, to each according to his needs”

-believed that the proletariat revolution must spread to all nations to finally overthrow the allied
colonizers and their capitalist economies (this dream was realized with the formation of the United
Soviet Socialist Republics)

The Red Revolution

-for Marx, man must reclaim his greatest virtues from the gods and idols of society

-working man: must be dignified, exalted and glorified and not the man in the palaces or in the
heavens

-Religion: opium of the people that prevents him from confronting his miseries in exchange for an
imaginary after-life that he cannot even be sure of.

-Marx’s influence brought the ouster of monarchies and the religious elites

-the spiraling excesses of Communist revolution produced recorded massacres, death camps,
genocides and famines know as the “Red Holocaust”
-what made Communism unappealing to Socialist sympathizers: endorsement of violence and
disregard for life and property

-Socialists argue that Capitalism has inherent politico-economic flaws:

1) Conspicuous consumption

2) Exploitation of the workers

3) Individualism

4) Monopolies

5) Licentious abuse of freedoms and rights

6) Increasing inequalities in wealth

7) Perpetuation of dynasties

8) Fascism

9) Industrial pollution and environmental degradation

10) Loss of sense of communalism and nationalism

-Capitalism inevitably widens the gap between rich and poor and eliminates any middle class. Its
facade of prosperity creates a BUBBLE ECONOMY, characterized by:

1) Price inflation

2) Uncontrolled money supply

3) Credit expansion

4) Overspending

5) Overconfidence in stocks,

6) Reckless investments

which bursts to market crashes and recessions, such as the Great Depression in the US.

-world views have been divided into Socialist “Left,” the free-market “Right,” and the “Middle”
welfare nations

-aim of social legislation: social justice defined in the case of Calalang v. Williams: “neither
communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the
equalization of social and economic forces by state so that justice in its rational and objectivgely
secular conception may at least be approximated”

-Social Market Economy:provides social policies and insurance and planned market economy

-The balanced economic formula:FAIR-MARKET CAPITALISM AND/OR WELFARE CAPITALISM which

favors the provision of basic services and regulation of industries to secure quality of life for all but
not complete State control.

-Worker-Control Capitalism: workers, not the State, will partly own the means of production by
obtaining significant shares; thus making workers industrial partners in a profit-driven business

-Dependency theory: developmental aides should also be negotiated with caution as these have
strings attached, including open policies favorable to the free entry of the investor’s goods and
maintaining poorer countries dependent on their products
PRINCIPLES UNDER CHAPTER 9