Theory of Law Legal Theories

- Component of philosophy of law 1. Natural Law Theory

- Attempts to answer the following questions: 2. Legal Positivism
o What is law? 3. Legal Realism
o What is the nature of law? 4. Legal Formalism
o What justifies law? 5. Constructivism
Legal Theory = Jurisprudence (Case law) 6. Critical Legal Studies
- Legal or juridical reasoning or legal thinking and
justification NATURAL LAW THEORY
- Applied philosophy of law i. Traditional validity of laws tested on the basis of
- Theory of law and legal theories are interrelated higher law reason, morality, divine law (Cicero,
Aquinas, Plato)
Theory of Law a. Cicero law is right reason in agreement with
a. Felipe Sanchez Roman nature universal, application, unchanging and
- Law in general sense: science of moral rules, founded on everlasting
the rational nature of men, which govern his free activity, BAD: Alter the law, abolish, attempt to
for the realization of the individual and social ends, of a repeal
nature both demandable and reciprocal. Some laws are INHERENT and
- Law in specific sense: a rule of conduct, just, obligatory UNIVERSAL
promulgated by the competent authority, for the b. Aquinas
common good of a people or nation, which constitutes Positive laws that are just have the
an obligatory rule of conduct for all its members. power of binding in conscience
b. Thomas Aquinas (Summa Theologica) Just law is one that is consistent with
- Law in an ordinance of reason ordered towards the natural law that is, ordered to the
common good, promulgated by who has the charge of common good
the community. BAD: Deflects the law of nature
- rational standard of conduct REASON is innate to Human law is derived from the
each one law of nature
- Natural Law Theory (God given ability to reason) ii. Modern validity of legal positivists propositions
o Men agree on certain principles of law: genocide a. Lon Fuller (Morality of Law)
is bad Law is the enterprise of subjecting human
c. Hans Kelsen (Pure Theory of Law, 1934; General Theory conduct to the governance of rules
of Law and State, 1945) Law is seen as a guiding principle, a tool,
- Law is an order of human behaviour a means to an end (there should be a
o An order is a system of rules. Law isnt, as it is test/standard)
sometimes said, a rule. GOOD: comply with certain criteria
d. Oliver Wendell Homes Jr. (The Path of the Law) (Internal Morality)
- Law is a systematized prediction Laws must be: General, Promulgated
o No normative value (announced), Should not be retroactive,
o prophecies of how/what the courts will do in Understandable, Not contradictory, Should
fact, and nothing more pretentious, are what I require reasonable conduct, Constant
mean by the law through time, Administered as announced
- On law and morality (Seperability Theory) b. Ronald Dworkin (Lost Empire, Taking Rights
o The bad man theory : the law is what the bad Seriously, Political and Moral Right Theory)
man thinks it is Prediction Theory Laws include not just the norms found in
treaties, customs, constitution, statues, but
General Classifications of Law (Crisolito Pascual) also moral principles that provide the best
1. Jural Law justification
a. Particular Sense specific rule of stature or Arguments for existence of laws but are
court opinion not in the law themselves, still form part of
b. Collective Sense branch of law or system the law
c. Abstract Sense precepts and ideals Observes that the things justified by moral
2. Non-Jural Law principle are socially constructed but the
a. Divine Law justifications themselves are not
b. Natural Law INTERPRETATIVE APPROACH combine
c. Moral Law backward and forward looking elements
d. Physical Law
LEGAL POSITIVISM - American theory of law (O.W. Holmes, Jr.)
Presupposes 2 principles: - Look at more than the legal rules
1. Law is a social fact or convention - realistic look at how judges decide cases
2. There is no necessary connection between law and - Judges are influenced by more than legal rules; decide
morality cases according to how toe facts of the case strike
o SEPERABILITY THESIS: separation between law them
and morality - rationally indeterminate
A. ABSOLUTE POSITIVISM T. Hobbes, J. Bentham, J. Austin - Criticizes Formalism
- Laws are constructed from commands, threats and - Judges may use personal judgement, beliefs, reasoning,
obedience etc.
- Command by a commander with no command by - Legal reasoning is not independent from moral and
another political considerations
- Laws are handed down by a sovereign backed by - Lawyers and judges are not logicians and
threats of law mathematicians. The life of the law has not been logic, it
- The sovereign is a person or group who enjoys the has been experience.
habitual obedience of most others but doesnt habitually - Favoring Judicial Activism judges based their
obey anyone else (Leslie Green) decisions on their personal and political consideration
- MOST civil laws are adopting to legal positivism: the law rather than the law
is harsh, but it is the law - Legal rules and reasons figure simply as post hoc
B. NOT ABSOLUTE POSITIVISM rationalization for decisions reached on the basis of non-
a. H.L.A. Hart legal considerations.
o Doesnt subscribe to the absolute positivist of o WHAT the decision should be, already known
law first hand: ESTRADA v. ARROYO
o Law is really fixed and posited LEGAL FORMALISM
o Contrary to absolute, he doesnt believe that - A positivist theory of law, it focuses on the role of judges
laws are but commands from a sovereign. Laws that they must be constrained in interpreting and
consist of laws, including practices and customs. applying the law. (THEORY OF LEGAL JUSTIFICATION)
Some laws arent coercively inforced. (Sanction- - For a formalist, a law is already the product of normative
Free laws) policy consideration in the formation of the law. Hence a
o Legal systems are composed of PRIMARY rules judge should not say what the law should be but should
and SECONDARY rules confine itself to what the law is.
o Wrong for the absolutists to say that laws are o Assumes that whenever the law is enacted,
always backed by threat or punishment assume that all possible outcomes have already
o PRIMARY RULE applicable to all been considered
o SECONDARY RULE applicable to law makers - Justice Scalia: most mindless form is formalist. Rule of
Adhering to both primary and law is about form. Government of laws and not of men.
secondary makes it a law CONSTRUCTIVISM (research more)
b. Hans Kelsen - Judges decide not because it is what the law mandates,
o Claims that while laws were posited there but because it is what tis required by some standards of
were presuppositions to laws that made them morality
valid (by validity, Kelsen refers to Acceptability CRITICAL LEGAL STUDIES
of laws by the governed) - Advocates believe in the inadequacy of law or
o Hierarchy of norms beginning from the basic emptiness of the law; that statues and case law cannot
norm where all other norms are related to each definitely determine the outcome of the case (legal
other indeterminacy)
o PROBLEM OF ABSOLUTE POSITIVIST no - Seeing rights as correlative (every entitlement of right
assurance that laws are right because basically a is limited by the competing rights of others)
command, there could be a mistake in creating it - Liberal ideals of freedom cant be actually be realized in a
o SUPREMIST CONSTITUTIONAL POWER legal regime and that efforts to realize them will only
result in doctrines that will always remain debatable
regardless of the goodness of the law, if it
- Law hasnt served its purpose
contradicts the constitution, it is void
- Grant of property right (in instrumentalism) simply
o Problem of listening to morality: whose standard
confers power over others = coercion of consent
of morality = POSITIVISTS says that laws should
- Ex. Marx Theory, Feminism, LGBT Law is politics
not be related to morality
c. Emmanuel Kant
o Men can never be secure against violence from
another

WHAT JUSTIFIES LAW?

LEGAL REALISM (SKEPTICISM)
 - Why do we obey laws? - Basic principles that regulate the coercive institutions
- What is the reason? should be ones that the reasonable members can agree
- What binds us that we obey the law? to
- Why does the law exist? - The liberal state must commit itself to the ideal of public
1. Is it the Content of the command? reason
2. Is it the nature of the source of the command? - John Rawls argues that the liberal principle of political
3. Is it the process of making or issuing the command? legitimacy requires that coercive institutions be so
JUSTIFICATION OF POLITICAL AUTHORITIES structured that they accord with the reasonable views of
- Anarchists questioned the justification of the coercive the members of the society. As long as they do so, they
power of state have the right to impose duties on their members (Rawls:
o According to them, we can conduct ourselves Political Liberalism)
without rules because knowing what is right and - Citizens do not have to agree on everything but only on
wrong is already inherent in us those principles that apply to the basic structure of
o CONSENT as basis of obedience but cannot be society
achieved by all DEMOCRATIC THEORY
o PLURALISM - When there are disagreements among persons about
CONSENT THEORY political authority is legitimate only if it has how to structure their shared world together and it is
the consent of those who are subject to its command important to structure that world together, the way to
A. Social Contract Theory choose the shared aspects of society is by means of a
1. Thomas Hobbes Leviathan decision making process that is fair to the interests and
o Society is warlike, we need rules or absolute opinions of each of the members
authority - When an outcome is democratically chosen and some
2. Locke people disagree with the outcome, as some inevitably
o State of nature is peaceful but property rights will, they still have a duty to go along with the decision
arent secure so there will be conflicts because otherwise they would be treating the others
o Matters where we cannot agree on, surrender a unfairly
part of our freedom to higher authority - Majority Rules
(LIMITED AUTHORITY) HABERMAS THEORY
3. Rousseau - The only law that counts as legitimate is one that could
o Authority is the general will, popular sovereignty be rationally accepted by all citizens in a discursive
is inalienable, cannot be transferred process of opinion-and will-formation (procedural
o Same state of nature with Locke conditions for national will-formation)
o General will Theory - Legitimacy of law = system of rights that mediates two
PROBLEM in CONSENT THEORY related tensions: 1) Between PRIVATE and PUBLIC
- How to determine if there really is consent (tacit vs. autonomy, 2) Between basic rights and popular
express) (Is silence consent?) sovereignty. But these rights must be justified and made
- When is consent given and how? legitimate through a Legislative Procedure that is based
- How does the giving of consent legitimize political on the principle of popular sovereignty
authority (necessary condition)
- Locke said consent is given in the hypothetical state of
nature
INSTRUMENTALIST THEORY
- Authoritative directives should be based on reasons
which already independently apply to the subjects of the
directives and are relevant to their action in the
circumstances covered by the directive
- According to Raz, what should guide government
decisions about what commands to give subjects is what
the subjects already have reason to do
- A law that takes place of reason becomes legitimate and
binding
ASSOCIATIVE OBLIGATIONS THEORY
- A political society can have legitimate authority even if it
is not a voluntary association and even if there is
disagreement on many political principles (DWORKIN)
- Models: Family, Friendship
- Dworkin argues that legitimate political authority arises
as a consequence of the acquisition on the part of
members of a political society of obligations to obey the
rules of a genuine associative community
REASONABLE CONSENSUS THEORY
KINDS OF LAWS POLITICAL LAW branch of public law which deals with the
CLASSIFICATION OF LAW organization and operations of the government organs of the state
1. Natural Law and defines the relations of the state with the inhabitants of the
- Authority from God territory
- Superior to other laws - Consists of: Consti I and II, Administration Law, Law on
- Binding upon the whole world and in all countries Public Officers and Election Laws, Public International
A. Physical Law universal law of action that governs the Law
conduct and movement of things which are non-free and CRIMINAL LAW branch of law which defines offenses and
material specify the corresponding penalties thereof
B. Moral Law set of rules establishes what is right and TAXATION branch of law which deals with the imposition and
wrong as dictated by human conscience engraved in us collection of taxes
C. Divine Law CIVIL LAW branch of law which every particular nation or state
a. Divine Positive Law 10 Commandments has established peculiarly for itself. This law concerns with civil or
b. Divine Human Positive Law commandments of private rights and remedies, as contrasted to criminal law
the church - Consists of: Persons and Family Relations, Property,
2. HUMAN POSITIVE LAW Obligations and Contracts, Succession, Sales, Credit
- Man-made laws Transactions, Agency, Trust and Partnership, Torts and
- Promulgated or indirectly by human for the common Damages, Transportation Law
good LABOR LAWS branch of law which deals with the relationship
A. According to Force and Effect: between the employer and the employee, as well as the working
a. Mandatory and/or Prohibitory Law those conditions, wages, fringe benefits, grievances, and association of
which have to be complied with, because they employees
are expressive of public policy: disobedience is COMMERCIAL LAWS body of law that applies to the rights,
punished either by direct penalties or by relations, and conduct or persons and business engaged in
considering an act or contract void commerce, merchandising and trade
b. Permissive or Supplmentary Laws those which - Consists of: Corporation Law, Negotiable Instruments Law
may be deviated from, if the individual so REMEDIAL LAW refers to the means and methods of selling the
desires courts in motion, making facts known to them and effectuating
B. According to the scope or content of the law their judgements
a. Public Law governs the relations of the - Consists of: Civil Procedure, Criminal Procedure, Evidence
individual with the state or ruler or community and Special Proceedings
as a whole (Criminal, Political, Taxation Law)
b. Private Law regulates the relations of the
members of a community with one another
(Civil, Labor, Commercial Law)
C. According to whether a right is given or merely the
procedure for enforcement is laid down:
a. Substantive Law establishes rights and duties
b. Remedial Law procedural or adjective law;
manner of enforcing legal rights and claims
HOW TO FIND SOURCES - Can be invaluable aids to researcher, since it can provide
- WHERE-WHO-WHEN-WHAT Approach a springboard for beginning a research project. At this
1. Where to go? stage the researcher may consult secondary sources:
- Personal books, office/institutional library, government 1. To obtain background information and an overview of an
office involved unfamiliar subject area;
2. To whom one may turn to? 2. To obtain citations to primary authorities to launch the
- Librarian, colleague, professor, consultant, lecturer, research;
superior, assistant, government employee 3. To suggest further issues or analytic approaches to the
3. Information may come through participation in problem
- Seminars, synopsia, convocations, conventions, round B. BY SOURCE law books are now generally classified
table dialogues, conferences likewise into primary source and secondary source
4. Information may be in any of the following types of legal materials
materials i. Primary Source the official publications of the
- Textbooks, digests, journals, dictionaries, encyclopedias, government or any of its agencies
newspaper digests, legal forms, citators, law reports, - Different from classification as to authority (content) as it
audio/video cassette, text of law, briefs and memoranda deals here on who or what is the source of the legal
A. BY AUTHORITY material, not content
- Books may be of primary authority or secondary - Ex: Official Gazette, Philippine Reports, looseleaf copies
authority depending on their content. The law itself is the of courts decisions, Journal of the Batasang Pambansa,
subject. Proceeding of the Constitutional Convention, as officially
i. Primary Authority mandatory or imperative; printed
primary authority is found in direct legislation and - What makes a source primary?
judicial decisions o Published by the issuing agency itself or official
o Examples: books of primary authority are official repository
authentic repositories of legislation and courts o All three branches of government create law.
decisions; administrative rules and regulations o EXECUTIVE in charge of administrative
adopted pursuant to law, have the force and agencies, responsible for rules and regulations
effect of the law, and for that reason, constitute o LEGISLATIVE creating new laws known
primary authority variously as statutes, acts, codes, ordinances, or
o EFFECT: Binding upon courts laws that dictate how people must behave in
a. Mandatory Primary Authority law created by various situations. We have these to tell us the
the jurisdiction in which the law operates penalties for criminal conduct and statutes to
b. Persuasive Mandatory Authority law created tell us how to probate a will. Republic Acts are in
by other jurisdictions but which have persuasive Official Gazette published by National Printing
value to our courts (esp when there are no Office.
Philippine authorities available) The local level, city or town also create
ii. Secondary Authority is at best persuasive but not laws: Ordinances to govern the people
really authority at all o JUDICIAL creates case law precedent. These
- Examples: indexes to authority, like case digests and decisions resolve real disputes between parties.
encyclopaedias and the means, like citators, for The resolution is often written, and the written
appraising the value of authority; Commentaries of legal result then forms a new precedent that can be
experts and test and treatise writers used whenever a similar situation arises
- The opinion of the Secretary of Justice is secondary SC decisions are in Philippine Reports
authority. It is generally binding upon the executive Advance SC Decisions and OG also
department and is persuasive upon the courts (selective)
- Opinions of SEC, BSP are also secondary ii. Secondary Source unofficial publications of private
- Books of secondary authority are those where the publishers or institutions. They are not the official
primary authority is commented on, criticized or sources of the law, nor are they authorized to be
explained. They include books of search, books of index, official publishers
textbooks, treatise, and legal periodical articles - Commercially published or those not published by
- EFFECT AND USE: government agencies or instrumentalities
o Doesnt have to be followed. A court is free to - Are secondary sources essential? Yes to speed up the
accept or reject any secondary authority process of locating, and enhancing the understanding of
o Often used to help a researcher gain access to the primary source materials which are the objective of
primary authority, as the secondary law research effort
frequently addresses issues that were raised by - Ex: Case Law the Supreme Court Reports Annotated;
primary law and refers to and cites this law. May Philippine Law and Jurisprudence; Statute Philippine
be accepted where there is little primary law on Annotated Laws
the subject. - With advent of IT, electronic or digitized sources are
popular sources because:
o Updated information is readily available
 o Search engines facilitate research STATUTORY LAWS
o No complete and update manually published - Because of civil law orientation, most important source of
search tools for statute and case law Philippine Law is statutory law
- In case of conflict between the printed and electronic - Is the positive law, express, written and promulgated by
sources, the printed version from issuing government the legislative body
agency prevails - It embraces PDs (Marcos) and EOs (Cory) as they
RULES TO APPLY? possessed legislative power
- Locate mandatory primary authority - Common law v. statutory law
- If non-existent, alternative is find relevant persuasive o If statutory law is clear, common law may not
mandatory authority apply
- In the absence of primary authorities, secondary source o If statutory law is unclear, common law may
may be cited. So SCRA is so popular because there is no apply
updated primary source. Publication of Phil. Reports TERMINATION
ceased in 1960s and was only revived in 1982. - Laws are repealed expressly or impliedly by another
How to classify sources published in newspapers? statute. Implied repeals however are not favoured.
- Newspaper publication of laws is primary - Laws may also collapse into insignificance if they are
o EO 200, s 1987 laws take effect after 15 days temporary acts or the subject matter has become
after publication in OG or newspaper; if conflict obsolete or reason for legislation ceases to exist
arises, OG prevails - Basic canon of statutory construction that when the
- Reports and Publications in compliance with law or rule reason of the law ceases, the law itself ceases: The
are also primary (Publication of Complaint; publication of reason of law is its soul
notice of settlement of estate) - Laws may be declared unconstitutional by courts. In SC,
- Reports (not primary as they are hearsay) majority vote will suffice but the court has to sit en banc.
C. BY CHARACTER Vote has to be concurrence of majority of justices who
- Classification of law books may be: 1) Statute books; 2) took part in deliberations on issues and voted theron.
case books or law reports, such as court reports and - Laws are presumed valid and constitutional until they are
decisions; 3) search books or law finders or finding tools, expressly nullified
which include encyclopedias, digests, citators, legal forms EFFECTIVITY
and books of index - NCC, Art. 2: laws take effect within 15 days from their
On law finder/finding tools: date of publication in the Official Gazette unless the law
- No up-to-date law finders themselves provide otherwise
- Finding tools do not persuade - EO 200, amending Art. 2 allowed publication in a
- Are not primary or persuasive authorities newspaper of general circulation
- Only means for locating sources - Filing with the Office of the National Administrative
- Ex. SCRA Quick Index-Digest; PHILJURIS; LEX LIBRIS Registrar of UP Law Center is required in the
Citator a citation index of legal resources. Given a reference of Administrative Code of 1987
legal decision, a citatory allows the researcher to find newer RETROACTIVITY
documents which cite the original document and thus to - Laws are not generally retroactive unless the laws
reconstruct the judicial history of cases and statutes themselves provide for their retroactivity except those
Ex. Dizons Philippine Citations (1937), Paras, Philippine which will violate the following: 1) impairment of
Citations, Shepards Citation to various US federal and state contracts; 2) ex post facto laws; 3) implementation may
reports be arbitrary or harsh
Why use a citator? CLASSIFICATION
- To find a parallel citation - Constitution
- To find direct history (such as subsequent reversal on - Treaties
appeal) - Statutes Proper
o Cases include prior and subsequent history - Municipal Legislation
o Statutes include reversal, amendment, or - Subordinate Legislation
pending legislation - Legislative Rules
- To find primary and secondary sources on a particular - Court Rules
narrow topic Classification of Case Law
o To find negative treatment (such as your case A. Case Law Proper
has been overruled or your statute having been - Decisions of Supreme Court
amended) - Decisions of Court of Appeals, Sandiganbayan, RTCs,
o To find positive treatment (such as another case MTCCs
agreeing with the analysis in yours) B. Subordinate Case Law
- Decisions of Commissions and Boards
- Rulings of Admin Officers
- Opinions of Office of President, Secretary of Justive, Sol.
General, Legal Officers of Government agencies
PARTS OF CASE
1. TITLE
- First word: Last name of Plaintiff (person who brought
the lawsuit)
- Second word: last name of Defendant (person against
whom the lawsuit has been brought)
- If multiple plaintiffs and defendants, only one name will
be used in the official title of the case
2. Citation
- Volume number | Name of Book | Page Number
- Ex. 1 Phil 1
3. Synopsis
- Means the summary
- Useful in research, you can usually tell after reading only
that paragraph whether you are interested in that case or
not, however, it shouldnt be cited
- Who writes? Not the ponente but editors like court
reports
4. Headnote/Syllabus
- Bullet points of each point of law that is found in the case
- Very useful for researching, but shouldnt be used as
precedent
- Who writes? Editors like court reporters
5. Case History (then the names of all attorneys and whom
they are appearing for and finally the name of the justice
who is actually writing the opinion)
6. Opinion/Ruling
- Facts of the case come first, followed by the discussion of
the law, application of the facts to the law, the holding.
- Depends on the author
7. Holding/Ruling
8. Concurring Opinion/Dissenting Opinion
- Concurring opinion: written by a justice who agrees with
the outcome but with a different reasoning
- Dissenting opinion: written by a justice who disagree with
the majority as to the outcome
Opinion/Ratio Decidendi very ruling of the court; reasons or
conclusions of the court. The reasoning of the court to arrive at
the disposition of the case. This constitutes judicial precedent.
Decision/Fallo is the disposition of the case placed usually at the
very end of the decision, otherwise called the dispositive portion
of the judgement. (Also called judgement)
Per curiam rendered by a court as a whole
Through Ponente decision is written by a writer
(ponente), member of the court chosen to write the
decision (ponencia)
Obiter Dictum an incidental statement not necessary to the
resolution of the controversy before the court