PHILAWSOPHIA: Philosophy and Theory of Philippine Law

Nicolo F. Bernardo & Oscar B. Bernardo Reason and the Common Good
2017 Edition
University of San Agustin – College of Law 2023 Common good: it promotes the good of everyone towards achieving personal
perfection.
CHAPTER 2
According to Aquinas, the end of the law should observe and promote public morality
I. THE FOUR ELEMENTS that concerns the common good.

Law: connotes binding communal rules — the dos and the don’ts. The common good is realized through a democratic participation or consideration of
 Jural or human law: refers to sanctioned or enacted law such as statutes, all members of society. It considers all stakeholders’ interests, special conditions, and
case laws, normative rules, and precepts. integral development.
 Non-jural or meta-legal law: not anchored on human promulgation, such as
divine law, natural law, and physical law. Promulgation and Authority
o Divine law: proceeds from sacred writings such as the Bible or the
Qur’an, backed up by faith. Copies of the law must be accessible to the public to avoid misunderstanding its
o Natural law: the law of our human nature, based on the demands of contents. Law must be issued by one who takes charge of the community, who
wields the power to promote common interest.
our humanity.
o Physical law: refers to the mechanical laws of the universe. Ex. laws
Modern Standards for a Rule of Law
of gravity by Galileo, Newtonian mechanics, Einstein’s law of
relativity. 1. A principle of governance in which all persons, institutions and entities, public
and private, including the State itself
St. Thomas Aquinas defined law is an ordinance of reason ordered towards the 2. Accountable to laws that are publicly promulgated
common good, promulgated by him who has charge of the community. 3. Equally enforced and independently adjudicated, and which are consistent with
international human rights norms and standards.
The four elements of Law: 4. Requires measures to ensure adherence to the principles of supremacy of law
(1) reasonable ordinance 5. Equality before the law
(2) for the common good 6. Accountability to the law
(3) promulgated 7. Fairness in the application of the law
(4) by legitimate authority 8. Separation of powers
9. Participation in decision making, legal certainty
10. Avoidance of arbitrariness and procedural and
Basic features of law that distinguish it from customs and conventions according 11. Legal transparency
to Max Weber:
(1) the duty to comply,
(2) due to external actions or threats,
(3) by individuals tasked to enforce the law.

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 a. Legal Truth
b. Enforcing Law
II. BRANCHES OF LAW c. Religious/Sectarian vis a vis Secular/Public Morality
d. Egalitarianism
Jural law may be classified into substantive or remedial. e. The Blindfold of Justice
 Substantive law: establishes rights, duties, and corollary prohibitions. f. Private Property
 Remedial or procedural or adjective law: prescribes the manner of g. Public Property
administering, enforcing, appealing, amending, and using legal rights and h. Corporate Property
claims. i. The Morality of the Free Market
j. Fair Market Economy
The Scope of Law k. Freedom with Duty

 Public or political law: concerned with the structures of government, the Law and Truth
relationship between the individual and the State.
 Criminal law: violation of public order through punishable acts or When witnesses are swearing before the court, the law is presuming that:
omissions. 1. There is truth or actual state of things.
 Private law: concerned with the rules governing the relationship of 2. Witnesses are obliged to tell or abide by it.
individuals.
 Civil law: rules of civility such as on property, marriage, succession, The Schools of Thought on Truth
contracts, and torts or private wrongs that result in damages.
 Mercantile law: regulates commercial transactions. Relativists: Truth is relative, subjective, perspectival, and limited by what the person
personally experienced or gained knowledge of.
Faulty memory, the limits of our senses (hallucination, nighttime), lack of sanity or
Civil Code System: refers to a legal system based on coded laws.
objectivity and framing of questions and answers may affect a person’s testimony.
Ex: the Code of Hammurabi, Roman Law Code
Objectivists: There is an external reality or objective truth independent to what a
Common Law System: based on case law or judge-made law that relies on
person thinks, feels, or believes in and this can be discovered by the proper use of the
precedents set by judges in a court case.
senses and reason.
The Philippines, which experienced both Hispanic and American occupations, has a
Legal Truth or Judicial truth: truth that is supported by legally admissible evidence
mixed system.
in a judicial proceeding. Legal judgments on facts are not necessarily the substantive
truth or complete, actual truth of what occurred.
III. MAIN ISSUES IN LAW

The main issues in Law are the following:1

1
It is only an interpretation of the editor regarding the issues in Law that were addressed in the
book. It is up to the reader to read the book in full. Law, Authority, and Force

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 most perverted regimes, cruelties, and inhumanities. The people produce law
Ways the Authority Establishes Itself in Society: because they have moral aspirations and duties they want to achieve.
1. Charisma: the personal ascendancy that an individual gains in a society
through his passion and determination for a cause or a mission, and his Religious/Sectarian vis a vis Secular/Public Morality
success gives him an aura of legitimacy.
2. Tradition: is where the authority from a leader, due to his magnanimity or Secular morality or public morals: a morality not based on religion but on popular
extent of influence in a society, is passed on to his successors or heirs. ideals, sources of law, and common aspirations as expressed in policies. Obedience to
3. Law: lawyers should act professionally and personally favor or receive favor the law of the state is itself a principle of secular morality.
from anyone. Laws are legitimate if they are enacted according to rules of
procedure and individual merit. Religious morality: the ultimate basis is the Word of God as expressed through a
sacred medium, such as the Bible for Christians, the Qur’an for Muslims, the
Enforcing Law teachings of the Church for Catholics, and of the Dalai Lama for Buddhists.

Anarchist: any form of violence or coercion is wrong and offends morality. The only Law, Justice, and Equality
real law must be consensual, which appeals to the conscience and free will of
constituents, not to threats of punishment. Justice
 equality in proportion
Confucian Followers: the ingredients to prevent and arrest crimes are not stern  to render to each what is due
punishments but a sense of shame for misbehavior, cultivation of virtue, education on  to give what one deserves according to the same standard, measure, or
right and wrong, respect for authority, and the elderly showing good examples. formula.

Social Contract Theorists: think that constraint is necessary and moral, since society Legal or formal equality: everyone must be given equal opportunity to measure up.
is presumed to have given consent to follow the law in establishing a Constitution The law is applied equally to all persons without fear or favor.
and the State. Ex. The same punishment is imposed on a rich man and a poor man because
wealth is not a valid differing standard under the law.
Law and Mores2
Doctrine of Reasonable Classification: acknowledging that not all individuals or
Moral customs are among the sources of law. situations can be treated identically. It recognizes that differential treatment may be
warranted to address specific concerns and cater to diverse needs within society.
According to Tolentino, “laws and morals have a common ethical basis and spring
from the same source — the social conscience.”
Equality does not have to mean same treatment, but “proportionate treatment.”
According to Harvard Law professor Lon Fuller, author of The Morality of Law, the Ex. one has to separate the sheep from the goat, one has to treat them
law has been the citizen’s refuge because it is supposed to protect them from the differently, then this will be just.

2
Mores are the customs, norms, and behaviors that are acceptable to a society or social group.

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Egalitarianism: the doctrine that all people are equal and deserve equal rights and People are entitled to the things they earned, worked for, or produced. They are also
opportunities. entitled to give the same to others, such as to their families. These entitlements may
not be seized upon even if it is to provide equality of opportunity to others. Just
Equality before the law is a universal enfranchisement so that everyone will at least distribution is met whenever a person has satisfied the legal entitlements to acquire or
have the “equal chance” to develop as any other human will do. Life is not fair to be a transferee of a property, so long it was not stolen, seized, or gained through
indeed, but since man, despite the inequities of life, aspires for fairness and a more fraud of others. If a property was legally acquired, it may not be seized by the
just society, he must make equality a goal (“egalitarianism”). government for redistribution.

The Blindfold of Justice Law on Property and Economics

John Rawls’ Veil of Ignorance Max Weber’s argues that Protestants value hard work, individual justification,
personal enrichment, multiplication of resources, and prosperity as sign of divine
People must imagine themselves under a “veil of ignorance” unaware of their place favor made Protestant States economically richer; even as religious Catholics made
in society. The veil of ignorance is a thought experiment that test ideas for fairness. poverty as a vow, with mendicancy, asceticism, and acts od piety as the highest
Behind the veil of ignorance, no one knows who they are. They lack clues as to their expressions of holiness.
class, their privileges, their disadvantages, or even their personality.
For Weber, Catholicism tends to prayerful indolence, self-abnegation, and feudal
It means that in making choices, we must think that we would randomly fit into habits. Individual and communal enfranchisement had to defer to frailocratic interests
anyone’s shoes. This way, we would make it a point that everyone would get a fair and expenditures to fund pompous rituals and grandiose churches.
chance. Since we could end up being anyone, we would wish a little something for
everyone. However, the Catholic Social Teachings have taken a distributive socialist ethic,
emphasizing works of charity, justice missions, and principles like preferential option
Ronald Dworkin’s Envy Test for the poor, solidarity, universal distribution of goods, collective good and
economizing good.
Dworkin proposes that society must meet the “envy test,” where no person will envy
another based on mere circumstances or lot in life. We will be the sum of our choices. The Catholic Catholicism teaches that the rights, needs and relationships of man
Each person pays the costs of his choices and will have his preferred bundle of goods. cannot be reduced into the Capitalist and Communist point of view. Reasonable
This is a just distributive scheme, but allows inequality based on personal regulation of the market place in view of the common good, hierarchy of values, and
determination and dream. respect for rights are commended . Productive work is also a duty and should be a
source of dignity.

Private Property: a right in which humans need to keep goods for personal
consumption and improvement.
Robert Nozick’s Entitlement Theory
The problem with private property is that it is susceptible to deception and excessive
profiteering, which Aquinas considered as avarice or greed.

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 provide public works and ensure basic services such as social security, health care,
Public Property: refers to things that we use and own in common, such as public works, pension, basic education, and measures to prohibit monopolies and
natural resources, streets, bridges, parks, river banks, etc. cartel that prevent free playing field in services.

The “tragedy of the commons” is the problem with public property. It provides that Law Freedom, and Duty
common properties collapse due to overuse as individual users inevitably use public
properties according to their self- interest. People does not feel personally Kinds of Freedom
accountable or motivated to devote himself to take care a property because it is held 1. Negative Freedom: absence of external constraints
in common for general use. 2. Positive Freedom: self-control or rational mastery over one’s appetites.

Corporate Property: reserves the property to an entity, but unlike Communism or Kinds of Liberty
public ownership, the owners are free to expand and use their property and receive 1. Negative Liberty: freedom from coercive and preventive threats.
dividends; and unlike private property, no private individual owns the corporate 2. Positive Liberty: ability of an individual to control his circumstances.
property. It is the artificial person, the corporation, which owns the property.
Liberalism teaches that there should be no compulsion in making choices, whether
The problem in corporate property is the rise of multinational corporations that have perceived good or bad, called as the “right to choose.”
become more powerful than the State. It is also criticized for creating cartels and
monopolies such as oil refineries, railways, telecommunication networks, and banks. A person has complete dominion over what he wills for his body, his life, and his
property (libertarianism). In other words, “your life, your choice.”
The Morality of the Free Market
Freedom with Duty
The free market calls for voluntary transactions between individuals choosing to pay
value for value. The money one pays is proof of the value or service one give to the Authentic freedom is the capacity to enjoy a good life and fulfill one’s potential and
person so that the buyer and seller are better off with an agreed just price. not the opportunity to do harm, whether to others or oneself. Each person has rights.
However, rights must be balanced with duties and vice versa. The duties of people
Ways the Government Compromises Free Market must complement their bill of rights. Rights, when not exercised properly, are
1. Free subsidies are anti worker and anti-poor if the recipient does not learn the considered renounced, thus the justification for curtailing the liberty of criminal
value and need for work. offenders through imprisonment. As the movie Spiderman puts it, “with great power
2. Over reliance on government and other’s generosity hinders a person to grow come with great responsibility.”
and prosper.
3. Government’s intervention to keep prices low may actually hurt poor
producers.
4. Artificial cheapening of the price of products make doubt the quality of
products.
Fair Market Economy: This principle aims to make markets free and fair.
Industries will remain in private or corporate ownership, but the government will Law, Guilt, and Personal Liability

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Whatever one’s motivation, one must be responsible for what one made or made not
happen willingly.

Aristotle’s Causes of How an Act Becomes Involuntary

 Ignorance: is lack of knowledge or awareness of what one is doing or not
doing.
 Compulsion: one is forced to do something he would not have done, such as
when a gun is pointed at one’s head.
 Insanity: defective mental faculties.

Determinism: the theory that all events are caused by antecedent conditions and
people do not have much free will but are like complex machines subject to various
external and internal stimuli.

Quantum consciousness: things are not mechanistic as they are supposed to be, but
there is an element of chance and microcosmic human influence in the turn of events.

Soft determinism or compatibilism: insists that freedom is compatible with

internal and external determinants.

People can be driven to commit criminal acts given their environment and
circumstances. People are responsible but not solely responsible, and mitigating,
aggravating, and special circumstances must always be appreciated.

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Brief Introduction
“Philosophy of Law” WHAT ARE THE 2 KINDS OF LAW?
1. Descriptive Law – merely describes uniformities or regularities in the
- Also called “jurisprudence” world or in nature; May NOT be violated (i.e scientific laws)
- branch of Philosophy that investigates the nature of law, especially in its 2. Prescriptive Law – prescribe a type of behavior which is supposed to
relation to human values, attitudes, practices, and political communities. be obeyed; may not be violated.
Traditionally, philosophy of law proceeds by articulating and defending
propositions about law that are general and abstract. -- i.e. that are true not ➢ 5 SCHOOLS OF JURISPRUDENCE
of a specific legal system at a particular time, but of all legal system in the 1.) Naturalism – Law and morality are not separate, that an unjust law is
present or perhaps of all laws at all times. Philosophy of law often aims to not a true law and that law must reflect the eternal verities of justice
distinguish law from other systems of norms, such as morality or other and fairness.
social conventions. 2.) Positivism – Believes that law and morality should be separate, and
• Philosophy of law comes from the Greek word “philos” and that law is valid if it is validly posited by lawful government or
“Sophia” which means the love of wisdom. authority. Law is something ‘posited’ or made in accordance to
• Philosophy of law is the love of the wisdom of the law. socially accepted rules.
➢ LAW is a rule of conduct, recognized by custom or formal enactment 3.) Realism – Law is determined by “real world practice” and experience.
which a community considers as binding upon its members. Law is what lawmakers, judges, lawyers, business people and society
“do with it”
➢ LEGAL PHILOSOPHY is a systematic study that seeks to understand
4.) Formalism – Law is a strict science governed by a formal axioms and
the:
principles which are used by judges, using rules of logic, in deciding
a. Nature and essence of law; and determining the outcome of a case. The rules and procedures
b. Its definition and elements; used in deciding cases are not to be found externally but within the
c. The sources of its authority; system of elaborated rules themselves.
d. Its various applications & developments; 5.) Critical Legal Studies – Law is but an expression of the policy goals
e. Its role in the society of whoever happens to be, as that particular moment of history, the
dominant social group. People consented to the interests of the
WHAT IS THE DIFFERENCE BETWEEN A PHILOSOPHER & A “dominant class” not because they were forced or ordered to do, but
LAWYER? the dominant class had organized a society using hegemony.
- A philosopher is interested in abstract and ideal law, while a lawyer is
interested in concrete and existing law.

WHY MUST A LAW STUDENT STUDY PHILOSOPHY?

1.) To be a better lawyer
2.) To be a better human being
3.) To define the nature of law to apply it in everyday life

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Chapter 1 (Bernardo and Bernardo)
III. Should lawyers cast the Philosopher’s stone?
I. Philosophy and Lawyers
Lawyers can be counted among the most misunderstood species. The practice of law an itself be a practice of philosophy.
Many lawyers are miscreants who supposedly murder the truth, who twit the law, “Jurisprudence,” often associated with “case law,” in fact means the theory and
who defend the sum of society, and who are good in torturing the English language. study of law. From the Latin juris and prudentia or the “prudence of law” or
See how society judges lawyers as morally compromised, tempted, or hunted “practical knowledge of the law,” jurisprudence is supposed to explain the nature,
beings. theory and development, and objective of a law. It is to know the wisdom behind
the law. Through jurisprudence, a law earns more credulity and force, as one
Philosophers on the other hand is the rumbling troublemaker, the sage understand not only the what of the law, but the how and why of it.
who unlike the lawyer cannot make a penny.
What distinguishes an explanation or ratio of a case and an
Though they are quite different, both of them find solace from one exposition of legal philosophy in a case is that the latter explain the underlying
another, the philosopher his wisdom and the lawyer his counsel. concepts, theory, and evolution of a legal dispute.

If philosophy then means love of wisdom, then philosophy of law is

the love of the wisdom of the law. A lawyer therefore is a lover. He is a lover of the
wisdom of the law.

II. Likes and Unlikes of the Law

Postmodernists say that law is just a self-aggrandized construct that
perpetuates itself by citation after citation of maxims. If it lives by citation, it would
die by non-citation. Even if we need to live with some crude law, lawyers are held
to be unnecessary.

Human needs law because they need order. We seek a systematic way
of dealing with other things. Laws are binding social rules on doing and undoing.
Laws serves this function of transforming our acts into a matter of record, matter of
publicity settled facts binding to third parties.

As society advances, must law also advance to become more complex and
intrusive?
The answer will depend on the political tendencies of the law. The
Socialist party-line is “statism”: more State intervention and welfare systems to
have an equal and stable society and economy. The state, in order to carefully plan
society, must through law spread its hold from womb to tomb.

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