Chapter 12

KINDS OF LAW

GROUP 3
Aclan, Dorothy Jean M.
Areño, Chiles Megan M.
Briones, Dianne M.
De los Santos, DanielleAnne M.
Gaerlan, Shalom Christian A.
Leyble, John Emmanuel A.
Definitions

2 Types of Laws according to Origin: (Thomas Aquinas)

DIVINE LAW
– Law that emanates from God and may be sub-classified into eternal
law and divine positive (or revealed) law.

HUMAN LAW
– Law that emanates from man with the aid of reason.
Definitions

NATURAL LAW
– A priori (pre-existing) principles and rights coming from God (for
theists), reason (for non-theists) or both
– ‘innate rights’ which belong to everyone by nature, independent of all
juridical acts of experience

POSITIVE LAW
– Laws that are promulgated at a particular time, hence, a posteriori
(existing after), although the principles invoked may be a priori.
– ‘acquired’ rights founded upon juridical acts
DIVINE LAW
&
HUMAN LAW
DIVINE LAW

– also known as “eternal law”

– The world is ruled by God and the whole community of the universe is
governed by Divine Reason
– Found only in the mind of God and is essentially unknowable and
unfathomable
– Man gets a glimpse of this law through: a) Human Reason and b)
Divine Revelation
DIVINE LAW

2 Pathways in the Study of God:

1. THEODICY – philosophical study of God using reason;

systematically arranges the content of our knowledge about God
2. THEOLOGY – the study of God through revelation and Holy Books;
sets our knowledge of God as drawn from sources of supernatural
revelation
DIVINE LAW

2 Types of Divine Law:

1. ETERNAL LAW – laws in the very nature of all created things and
implanted at the very moment of their creation by God.
2. DIVINE POSITIVE LAW – laws promulgated by God through his
prophets as found in the various Holy Books.
DIVINE LAW

Eternal Laws Affecting Man:

1. Preservation of Man’s Own Being – man’s inclination to do good
according to the nature he has in common with all substances; self-
preservation is the first law
2. Law of Reproduction and the Education of the Offspring –
man’s inclination to do good according to the nature he has in
common with other animals
3. Law and Inclination to Know God and to Live in Society –
man’s inclination to do good according to the nature of his reason
HUMAN LAW

– According to Aquinas, human laws are creations of the ‘secondary

governors’ to the ‘Chief Governor (God)’
– Human law must conform to eternal law, and it is incumbent upon
the human lawmakers to discover the directives and purpose of the
eternal law
– Since eternal law is the plan of government in the Chief Governor, all
the plans of government in the inferior governors must be derived
from the eternal law

“Laws framed by men are either just or unjust. If they be

just, they have the power of binding in conscience…”
- Thomas Aquinas
NATURAL LAW
&
POSITIVE LAW
NATURAL LAW
“Lex iniusta non est lex” – an unjust law is not a true law

– Natural Law believes that the foundation of what is ‘true’ and ‘good’
law can be accessed through the aid of human reason.
– Foundational Principles of True Law: a) morality and b) justice are
inherent in nature
– has this built-in moral compass that guides the lawmakers in their
attempt to craft laws for the common good
– Aristotle is believed to be the Father of the Natural Law Tradition
– Aristotle believes that natural justice is the mean between two
opposing vices
NATURAL LAW
“Lex iniusta non est lex” – an unjust law is not a true law

– Natural Law govern men in the state of nature, i.e. in the wild or
outside the state of civil society
– They are instinctive
– For Aquinas, natural law is nothing else than the rational creature’s
participation in the eternal law
– In other words, natural law is God’s eternal law applied to man, a law
both received by and existing in man
NATURAL LAW
“Lex iniusta non est lex” – an unjust law is not a true law

2 Principles in Applying Natural Law:

1. Audi Alteram Partem – the right of the person concerned to be

heard, or simply ‘due process’
2. Nemo Judex in causa sua – one should not just a case in which he
himself is interested
NATURAL LAW
“Lex iniusta non est lex” – an unjust law is not a true law

3 Principles of Natural Justice (Ridge v. Baldwin):

1. The right to be heard by an unbiased Tribunal

2. The right to have notice of charges of misconduct
3. The right to be heard in answer to that charge
4. The decision must give its reasons in writing*
NATURAL LAW
“Lex iniusta non est lex” – an unjust law is not a true law

CASE STUDY: KRIPAK CASE

(A.K. Kripak v. Union of India)
NATURAL JUSTICE
In the A.K. Kripak case, the acting Chief Conservator of Forest was part of the
selection Committee to choose a candidate for the post of Chief Conservator, where
the acting Chief Conservator of Forest was himself a candidate for the post. While he
excuse himself from the Selection Committee when his own file (as candidate) was
scrutinized, he remained part of the Selection Committee which looked into the files
of the other candidates. The result: he was chosen for the post. The case went all the
way to the Supreme Court which struck down the decision of the Selection Committee
calling it contrary to the principles of natural justice that no person should
judge a case where he himself is interested.
POSITIVE LAW
also called ‘human law’, ‘civil law’, ‘municipal law’, and written law’

– It is a law valid in a particular state, and this legal authority is the

guiding principle for the knowledge of right in this positive form, i.e.
for the science of positive law.
– Originated from act of human legislation, using reason.
– Being a product of human creation, it includes the element of ‘choice’
and free-will, as well as the freedom to change the law when the need
requires.
– According to Aquinas, general precepts start from the eternal laws of
God, from which the ‘human reason’ needs to ‘proceed to the more
particular determinations of certain matters.’
POSITIVE LAW
also called ‘human law’, ‘civil law’, ‘municipal law’, and written law’

Aquinas Divides Human Law into:

1. Civil Law (Jus Civile) – composed of statutes and customs having
the force of law; largely legislated law
2. Law of Nations (Jus Gentium) – law for non-citizens (foreigner
and subjects); drawn from rules of law common to all nations;
“International Law”
CRIMINAL LAW
&
CIVIL LAW
CRIMINAL LAW

– Deals with acts or omissions committed against the community for

which penalties are imposed by the state.
– Defines what society deems as public wrongs and establishes methods
for their prosecution and punishment.
CRIMINAL LAW

CHARACTERISTICS
– A law, regulation, or ordinance duly enacted by the state prohibits
certain acts.
– A person acts/omits to act in such a way that it breaks the law.
– The act/commission is seen by law and the community as harmful to
society.
– State takes the person to court where the offense is proved according
to the rules of criminal procedure.
CRIMINAL LAW

CLASSIFCIATION
– Economic offenses (e.g. robbery, theft)
– Offenses against the state (e.g. rebellion)
– Offenses against other people (e.g. murder, rape)
– Offenses against one’s self/victimless crimes (illegal gambling, illegal
possession of firearms)
CRIMINAL LAW

ELEMENTS
– Actus reus – the act or omission punishable by law
– Mens rea – intention to commit a crime
– Exception to mens rea --- malum prohibitum (strict liability)
– Causation – the act or omission must have been the cause of the
specific injury complained of.
CRIMINAL LAW

UNIQUE FEATURE
– The expression of the community’s hatred, fear, or contempt for the
convict which alone characterizes physical hardship as punishment.
CIVIL LAW

– Relates to matters between private individuals and institutions.

– Designed to regulate the people’s private relationship.
– Concerned with rights and remedies involving private persons.
COMMON
&
CIVIL LAW
SYSTEMS
COMMON LAW SYSTEM

- “case law or judge-made law”

- Legal principles evolved by judges from custom and precedents of

previous case

- Norman (French) conquest of England in 1066

- Henry II (King of England from 1154)

- Doctrine of Precedent : that in deciding a particular case, the court

must have regarded to the principles laid down in earlier reported
cases on the same or similar points.
CIVIL LAW SYSTEM

- “statute law or continental law system”

- Originated under the Roman Empire and continued in the

Byzantine Empire in 1453

- The first codification was of the Twelve Tables (450 B.C.) and its
final form of codification was of the Justinian (528-34 A.D.)
PHILIPPINE LAW SYSTEM

CIVIL AND COMMON LAW

ROLE OF JUDGES IN
COMMON & CIVIL LAW SYSTEM

– Adversarial System
– Court Procedure under common law
– Judges are like an “umpire”
– The image of impartiality and objectivity
– Such system is adopted by the Philippines
ROLE OF JUDGES IN
COMMON & CIVIL LAW SYSTEM

– Inquisitorial System
– Judges take the role of an “inquirer”
– Court Procedure tends to be informal
– Judges also acts in an active role to bring the parties into settlement
– Under Chinese Traditional Law, Judges act as a “mediator”
ROLE OF JUDGES IN THE
PHILIPPINES
– In the Philippines, Adversarial System
is adopted.
– Sometimes, Judges are given the
mandate to act as “Mediators” but the
responsibility to try the case is passed on
to another judge (“pairing judge”)
– The reason is to avoid jeopardizing
neutrality and impartiality
CHAPTER 13
LEGAL
PHILOSOPHY
SCHOOLS OF
THOUGHT

NATURAL LAW THEORY

NATURAL LAW THEORY

- Essence of law is morality and justice.

- There is no separation between law and
morality (Overlap thesis).
- The principles of what is good and fair can be
found within the nature itself, and they can
be accessed through human reason.
- Law should be based on reason, on those
rules and principles which are obvious to
every natural being as the right or the
“natural” thing to do.
NATURAL LAW THEORY

– “Ius Naturae” or also known as natural right

or natural justice.
– Believes in the equality of all people before
the law.
– Hearing Rule
– Rule against bias rule

The idea originated from Plato and

Aristotle. Socrates also believed in its
existence
NATURAL LAW THEORY

OVERLAP THESIS
 No separation between law and morality.
 It is not enough that a rule is sanctioned by
the State, it must be morally justified as
well.
 Expressed in the writings of St. Thomas
Aquinas and Sir William Blackstone
NATURAL LAW THEORY

SIR WILLIAM BLACKSTONE

“This law of nature, being coeval with
mankind and dictated by God himself,
is of course superior in obligation to any
other. It is binding over all the globe, in
all countries and at all times: no human
laws are in validity if contrary to this;
and such of them are valid derive all
their force, and all their authority,
mediately or immediately, from this
original.”
NATURAL LAW THEORY

ARGUMENTS FOR NATURAL ARGUMENTS AGAINST

LAW NATURAL LAW
 People will not become willing  Philosophical foundation for
participants to immorality and anarchism would be provided.
oppression in the guise of doing  To test every law against
“legal” act which is enforcing individual conscience is to pave
unjust laws. way for chaos.
 Enforcers’ on an unjust law
cannot take over or invoke the
defense that their act is legally
sanctioned. After all, unjust law
is not a true law.
NATURAL LAW THEORY

POSITIVIST VIEW OF LAW

 There is no law beyond that made by humans.
 In sharp contrast to natural law is the positivist view of law, which
developed in 19th century with the rise of colonization by powerful
states over weaker states. Colonization was done with little regard for
religious principles or an what was morally right. Colonial powers
justified their actions through various legal theories aligned with the
positivist philosophy.
 After the two world wars of the 20th century , a resurgence of the
natural law principles occurred evidenced by the adoption of various
laws, declarations and treaties in line with the basic tenets and
principles of natural law.
NATURAL LAW THEORY

SOPHOCLES’ ANTIGONE
(Antigone and Oedipus at Colonus)
– Antigone was the daughter of
Oedipus. She chose to bury her rebel
brother Polynices against the laws of
Theban king Creon, and for defiance
she was imprisoned in cave.
– Antigone relied on the “supreme
law” as her source of justice when
she chosen to bury and perform last
rites in her rebel brother Polynices.
For that she violated the laws of the
King forbidding the burial of rebel to
the crown. Antigone thus followed
the “higher law.”
NATURAL LAW THEORY

ARTICLE 21, NEW CIVIL CODE

“Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damages.”

– It was intended to fill the countless gaps in the statutes which leave
so many victims of wrongs helpless.
– It vouchsafed adequate legal remedy for that untold number of moral
wrongs which it is impossible for human foresight to provide for
specifically in the statutes.
CHAPTER 14
LEGAL
PHILOSOPHY
SCHOOLS OF
THOUGHT

LEGAL POSITIVISM
LEGAL POSITIVISM

LEGAL POSITIVISM
- Also known as “classical legal thought” which regards a law’s validity
in terms of social convention

LAW & POLITICS

- “Law is a political tool; it is politics” – means that all law is politics,
although not all politics is law
- Both politics and law involve making decisions affecting the social
relations of their constituents
LEGAL POSITIVISM

ARGUMENTS FOR LEGAL POSITIVISM

SEPARABILITY THESIS IS-OUGHT THESIS

 Legal positivists argue that law  Legal positivists say that law is
and morality are separate. law even though it is immoral.
They look at the natural law as
 Separability Thesis – posits that confusing between the law’s
there is no necessary connection meaning requirement and its
between law and ethics. compliance requirement
 Morality is neither an element
nor a component of law.
LEGAL POSITIVISM

ARGUMENTS AGAINST LEGAL POSITIVISM

- Natural law theorists argue that it is absurd to obey law qual law
(obey law just because it is the law) as there is nothing to justify such
act or obedience.
- In addition, they argue that legal positivism does not solve the
problem of punishing hard-core criminals who invoke the defense of
obeying an unjust law
LEGAL POSITIVISM

AUSTIN’S COMMAND THEORY OF LAW

- Laws are commands from a sovereign backed by the threat of

punishment. Sanction may come from parliament, the court, or any
one with authority.
- In order to interpret a legal system, one must first identify a
sovereign, or a person or persons who habitually obey no one, whose
commands are habitually obeyed.

“Not all laws are coercive. People in most cases choose to

obey the law even though they know there are no sanctions –
internal aspect of obedience”
- H.L.A. Hart’s Criticism
LEGAL POSITIVISM

H.L.A. Hart’s Rule of Recognition

- Argues that subjects or citizens voluntarily obey the laws of the land
because they accept as valid the rule-making institution’s claim to the
exercise of authority.

Dworkin’s Theory of Adjudication

- Considered the middle ground between natural law and legal
positivism. Law is nothing more than a “rule”, judges must use only
one standard in deciding a case.
- He believes that law is a “seamless system” – if judges cannot find
applicable rules, they can turn to principles of other legal standards
for answers.
LEGAL POSITIVISM

RULES vs. PRINCIPLES

RULES PRINCIPLES
 “All or nothing” choice.  They represent various norms
and values in society.
 They are not weighed or
 They make up the community’s
balanced. moral fabric.
 Either a rule applies to a case or  When two principles conflict
not. such as whether to regulate
curriculum or go for academic
 Generally, legal positivists are
freedom, the judge has to weight
rule bound.
and balance various principles.
LEGAL POSITIVISM

SOFT POSITIVISM vs. HARD POSITIVISM

SOFT POSITIVISM HARD POSITIVISM

 Incorporationism – theoretically  Denies that a legal system can
possible for a society to put in incorporate moral constraints to
morality checks or moral make a law legal.
considerations  J. Raz believes that a law’s
validity does not depend on
 Law may still be considered law moral arguments but can always
even if society puts in an be traced back to its source,
additional criteria such as the legitimacy of its
proponents and promulgators –
called the Source Thesis
CHAPTER 15
LEGAL
PHILOSOPHY
SCHOOLS OF
THOUGHT

LEGAL REALISM
LEGAL REALISM

LEGAL REALISM
- the core belief is since law was created by man
- it is also subject to human imperfections, eccentricities, weaknesses and foibles.
- is “indeterminate”
- For Justice Benjamin Cardozo, it allows one to “predict” that a rule of conduct wil
be enforced by the courts if the authority of that rule is challenged.

JUDICIAL LEGISLATION
- whereby the latitude of judges to interpret that law gives them the power to
define, even “create” the law.
LEGAL REALISM

INSTRUMENTALISM
- is a philosophic position that laws, principles and ideas are “tools” or
“instruments” in resolving the puzzles of life in order to create
possibilities for human experience.
LEGAL INSTRUMENTALISM
- looks at law beyond the text or legislative intent;
- believes that in the interpretation of the law there should be freedom
and creativity given to the judges
- this theory is justified in order to assure that the law serves the
higher purposes of good public policy and social interests.
LEGAL REALISM

NATURAL LAW AND LEGAL REALISM

– Legal realism differs from natural law in that the former does not
bother itself with questions like what should be the law or what ought
to be the law, but merely describes the law as is
LEGAL REALISM

LEGAL FORMALISM
- follows the highly syllogistic form of legal reasoning. There is much
emphasis on the formal rules of logic to arrive at a decision or holding
of the case.
LEGAL REALISM
- reasons that legal formalism greatly undercuts the authority of judges
to decide a case. A case is much more complex and nuanced than a
simplistic if mechanical application of the syllogistic rules of formal
logic.
LEGAL REALISM

DISCRETION THESIS
- judges unwittingly make “new law” in deciding disputes in the sense
that a judge is often influenced by his political, religious or moral
convictions and not strictly by legal considerations;
- judges’ decisions are often influenced by their personal beliefs and
ideological upbringing.

DWORKIN’S THEORY OF ADJUDICATION

- judges, in deciding cases, do not limit themselves to strictly legalistic
principles
LEGAL REALISM

DISCRETION THESIS DWORKIN’S THEORY OF

 It believes that judges are often ADJUDICATION
influenced by their personal  In adjudicating disputes, judges
convictions are quite free to explore and use
the larger society’s principles,
norms and values in decision-
making
LEGAL REALISM

PREDICTION THEORY OF LAW

- espoused by U.S. Supreme Court Justice Oliver Wendell Holmes Jr., it
follows a behaviorist conception of law.
- Holmes discarded the other definitions of law and posited instead that
law is nothing but the prediction of how the courts will behave. “What
I mean by the law are prophecies of what the courts will do in fact, and
nothing more pretentious…”
- Holmes believes that law should be written from the viewpoint of the
“bad man”, since he is the one most interested in avoiding prison time
and all sorts of punishment. He has no interest in the idealized
principles of morality, but how to escape the penalty.
LEGAL REALISM

JUDICIAL LEGISLATION
Judicial legislation is frowned upon as inimical to the constitution, yet some
form of judicial discretion is given to the court under Art. 9 of the Civil Code
which provides that : “[n]o judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the law”

In another case, while the law then applicable under the old Civil Code does
not provide for reimbursement to the wife, the Supreme Court ruled that the
wife should be “paid” for the “value of the old buildings” which were her
paraphernal or separate property, and which were demolished to pave way
for the construction of a new building that ultimately benefited the spouses’
conjugal property.
LEGAL REALISM

CASE STUDY: ESTRELLA ALFON and THE FIRST OBSCENITY TRIAL IN

THE PHILIPPINES
– Estrella Alfon, considered one of the best writers of Philippine Literature,
published in 1955 the “Fairy Tale for the City” which is about the seduction of a
young girl by a married man. For the story, Alfon stood trial was found guilty of
“obscenity” and sentenced to pay a fine of P300.00. The trial dragged on for 2
years. On the prosecution side were the Catholic Women’s League and Holy Name
Society who condemned the story as “immoral”
– In legal realism, the society’s influence on the direction and outcome of law is just
as important as the influences law would have on society. Perhaps for modern day
readers, there is nothing ‘immoral’ or ‘dirty’ about ‘breast,’ which is mentioned
once in the story. Clearly, Alfon was a victim of her time. Society’s and the court’s
definition of ‘obscenity’ unfortunately does not go far beyond ‘breast’ and press!’ In
what may be Alfon’s ‘poetic justice,’ she was eventually formally pardoned by
President Garcia, himself a vernacular poet and writer of renown.
LEGAL REALISM

CASE STUDY: PAUL HOPKINSON’S FLAG BURNING

CASE IN NEW ZEALAND
– Hopkinson, a Wellington school teacher, burned the Flag of New Zealand
as part of protest in Parliament grounds at the New Zealand
Government’s hosting of the Prime Minister of Australia, against the
background of Australia’s support of the U.S. in its war in Iraq.
Hopkinson was initially convicted under Flags, Emblems, and Names
Protection Act 1981. On his appeal, his conviction was overturned on the
grounds that the law had to be read consistently with the right to freedom
of expression under the Bill of Rights.
– This meant that his actions were not unlawful because the word
dishonour in Flags, Emblems, and Names Protection Act 1981 had many
shades of meaning, and when the least restrictive meaning of that word
was adopted Hopkinson’s actions did not meet that standard.