Philo Reviewer
Philo Reviewer
Philo Reviewer
impressions of the most usual or likely Rousseau calls the collective grouping of all
happening. To judge otherwise will require citizens the "sovereign," and claims that it
convincing evidence against common should be considered in many ways to be
experience. As to the controlling law, there like an individual person. While each
is in jurisprudence a rule of deference to individual has a particular will that aims for
precedents.170 his own best interest, the sovereign
expresses the general will that aims for the
Hume suggests that our judgments about common good. The sovereign only has
what is more or less probable are based authority over matters that are of public
solely on repeated experiences. He concern, but in this domain its authority is
cautioned against relying on the notion of absolute: Rousseau recommends the death
causality, questioning even the scientific penalty for those who violate the social
idea of a definite cause leading to a definite contract.
effect. According to Hume, we should not
speak in terms of certainties or necessities, The general will finds its clearest expression
but rather in terms of probabilities or in the general and abstract laws of the state,
improbabilities. The occurrence of an event which are created early in that state's life by
following another event is not a guaranteed an impartial, non-citizen lawgiver. All laws
outcome; it is merely a pattern observed must ensure liberty and equality: beyond
through consistent experiences, establishing that, they may vary depending on local
a connection. A single inconsistency can circumstances.
challenge an event’s coherence which
produces what law calls as reasonable While the sovereign exercises legislative
doubt.171 power by means of the laws, states also need
a government to exercise executive power,
carrying out day-to-day business. There are
3. Concept of Social Contract many different forms of government, but
they can roughly be divided into democracy,
With the famous phrase, "man is born free, aristocracy, and monarchy, depending on
but he is everywhere in chains," Rousseau their size. Monarchy is the strongest form of
asserts that modern states repress the government, and is best suited to large
physical freedom that is our birthright, and populations and hot climates. While
do nothing to secure the civil freedom for different states are suited to different forms
the sake of which we enter into civil society. of government, Rousseau maintains that
Legitimate political authority, he suggests, aristocracies tend to be the most stable.
comes only from a social contract agreed
upon by all citizens for their mutual The government is distinct from the
preservation. sovereign, and the two are almost always in
friction. This friction will ultimately destroy
PHILO REVIEWER | Dean Ulan (2024)
the state, but healthy states can last many views, which emphasize individual rights
centuries before they dissolve. and limited government, set the foundation
The people exercise their sovereignty by for liberal thought and are still a topic of
meeting in regular, periodic assemblies. It is discussion centuries later. This paper
often difficult to persuade all citizens to examines Locke's defense of private
attend these assemblies, but attendance is property, its fundamental ideas, and the
essential to the well-being of the state. When current debates over its applicability.
citizens elect representatives or try to buy
their way out of public service, the general The labor theory of property is central to
will shall not be heard and the state will Locke's argument. He believes that
become endangered. When voting in individuals have a natural right to own the
assemblies, people should not vote for what things they create through their labor.
they want personally, but for what they Unclaimed resources exist in nature and are
believe is the general will. In a healthy state, shared by everyone. When someone works
the results of these votes should approach to cultivate the land, gather resources, or
unanimity. To prove that even large states build on it, they combine their efforts with
can assemble all their citizens, Rousseau the raw materials, changing them into
takes the example of the Roman republic something useful. This act of change
and its comitia. establishes a genuine claim to possession.
For example, by planting crops on
Rousseau recommends the establishment of unclaimed property, a person spends their
a tribunate to mediate between government effort, earning the right to enjoy the products
and sovereign and government and people. of their labor.
In cases of emergency, brief dictatorships
may be necessary. The role of the censor's Self-Ownership is a fundamental idea in this
office is to voice public opinion. ideology. Locke contends that everyone
While everyone should be free to observe owns themselves and their labor. By
their personal beliefs in private, Rousseau extension, they naturally own the results of
suggests that the state also require all their effort. This right to one's labor serves
citizens to observe a public religion that as the foundation for the right to private
encourages good citizenship. property derived from that effort. It is a
fundamental right that stems from each
individual's inherent value and is unaffected
4. Second Treatise of Civil Government by society structures.
by John Locke
However, Locke recognized the dangers of
John Locke, a towering figure of the uncontrolled accumulation. He introduced
Enlightenment, addressed the basic topic of the Lockean Proviso, which limits the
private property in his landmark work, The acquisition of private property. He
Second Treatise of Government (1690). His maintained that accumulating property via
PHILO REVIEWER | Dean Ulan (2024)
this will produce more genuine pleasure in as a body politic that mimics the human
the long run. What makes the majority body. The frontispiece to the first edition of
happy, however, mustrespect what may Leviathan, which Hobbes helped design,
please the minority since they also have a portrays the commonwealth as a gigantic
right to be happy. The essence of the law is human form built out of the bodies of its
to punish those who break this right since it citizens, the sovereign as its head. Hobbes
is fundamental for man to seek his own calls this figure the "Leviathan," a word
happiness. The interest of all makes an equal derived from the Hebrew for "sea monster"
claim for the consideration of all. The and the name of a monstrous sea creature
function of law is to legislate for liberty. appearing in the Bible; the image constitutes
Although society may actively promote, the definitive metaphor for Hobbes's perfect
encourage, or give incentives to certain government. His text attempts to prove the
activities that will increase the general necessity of the Leviathan for preserving
happiness index, it must not prohibit those peace and preventing civil war.
that do no real harm or which harm only
those who consent to the activity. A Leviathan is divided into four books: "Of
diversified society may not always Man," "Of Common-wealth," "Of a
guarantee everybody’s version of happiness Christian Common-wealth," and "Of the
but it must at least allow its pursuit. It is the Kingdome of Darknesse." Book I contains
person who knows what is best for himself. the philosophical framework for the entire
If society will allow him to live in a way that text, while the remaining books simply
makes him fulfilled, it might enable him to extend and elaborate the arguments
achieve his potential, to discover new ways presented in the initial chapters.
of doing things, and to leave his mark in the Consequently, Book I is given the most
world. attention in the detailed summaries that
follow. Hobbes begins his text by
considering the elementary motions of
6. Concept of Leviathan by Thomas matter, arguing that every aspect of human
Hobes nature can be deduced from materialist
principles. Hobbes depicts the natural
Leviathan rigorously argues that civil peace condition of mankind--known as the state of
and social unity are best achieved by the nature--as inherently violent and awash with
establishment of a commonwealth through fear. The state of nature is the "war of every
social contract. Hobbes's ideal man against every man," in which people
commonwealth is ruled by a sovereign constantly seek to destroy one another. This
power responsible for protecting the security state is so horrible that human beings
of the commonwealth and granted absolute naturally seek peace, and the best way to
authority to ensure the common defense. In achieve peace is to construct the Leviathan
his introduction, Hobbes describes this through social contract.
commonwealth as an "artificial person" and
PHILO REVIEWER | Dean Ulan (2024)
Book II details the process of erecting the and jurisprudence, and it inspired the
Leviathan, outlines the rights of sovereigns Declaration of the Rights of Man and the
and subjects, and imagines the legislative Constitution of the United States. Under his
and civil mechanics of the commonwealth. model, the political authority of the state is
Book III concerns the compatibility of divided into legislative, executive and
Christian doctrine with Hobbesian judicial powers. He asserted that, to most
philosophy and the religious system of the effectively promote liberty, these three
Leviathan. Book IV engages in debunking powers must be separate and acting
false religious beliefs and arguing that the independently.
political implementation of the Leviathanic
state is necessary to achieve a secure Separation of powers, therefore, refers to the
Christian commonwealth. division of government responsibilities into
distinct branches to limit any one branch
Hobbes's philosophical method in Leviathan from exercising the core functions of
is modeled after a geometric proof, founded another. The intent is to prevent the
upon first principles and established concentration of power and provide for
definitions, and in which each step of checks and balances.
argument makes conclusions based upon the
previous step. Hobbes decided to create a The traditional characterizations of the
philosophical method similar to the powers of the branches of American
geometric proof after meeting Galileo on his government are:
extended travels in Europe during the 1630s.
Observing that the conclusions derived by The legislative branch is responsible
geometry are indisputable because each of for enacting the laws of the state and
constituent steps is indisputable in itself, appropriating the money necessary to
Hobbes attempted to work out a similarly operate the government.
irrefutable philosophy in his writing of The executive branch is responsible
Leviathan. for implementing and administering
the public policy enacted and funded
by the legislative branch.
7. Philosopher who introduced Separation The judicial branch is responsible for
of Powers - Charles de Montesquieu interpreting the constitution and laws
and applying their interpretations to
The term "trias politica" or "separation of controversies brought before it.
powers" was coined by Charles-Louis de
Secondat, baron de La Brède et de Forty state constitutions specify that
Montesquieu, an 18th century French social government be divided into three branches:
and political philosopher. His publication, legislative, executive and judicial. California
Spirit of the Laws , is considered one of the illustrates this approach; "The powers of
great works in the history of political theory state government are legislative, executive,
PHILO REVIEWER | Dean Ulan (2024)
and judicial. Persons charged with the domination in the modern society and many
exercise of one power may not exercise of them have focused on the law as a tool in
either of the others except as permitted by achieving this goal. CLS is also a
this Constitution." membership organization that seeks to
advance its own cause and that of its
While separation of powers is key to the members. CLS was officially started in 1977
workings of American government, no at the conference at the University of
democratic system exists with an absolute Wisconsin-Madison, but its roots extend
separation of powers or an absolute lack of back to 1960 when many of its founding
separation of powers. Governmental powers members participated in social activism
and responsibilities intentionally overlap; surrounding the Civil Rights movement and
they are too complex and interrelated to be the Vietnam War.
neatly compartmentalized. As a result, there
is an inherent measure of competition and Many CLS scholars entered law school in
conflict among the branches of government. those years and began to apply the ideas,
Throughout American history, there also has theories, and philosophies of post modernity
been an ebb and flow of preeminence among (intellectual movements of the last half of
the governmental branches. Such the twentieth century) to the study of law.
experiences suggest that where power They borrowed from such diverse fields as
resides is part of an evolutionary process. social theory, political philosophy,
economics, and literary theory. Since then
CLS has steadily grown in influence and
8. Critical Legal Theory permanently changed the landscape of legal
theory. Among noted CLS theorists are
Critical Legal Theory Critical legal studies Roberto Mangabeira Unger, Robert W.
(CLS) is a theory that challenges and Gordon, Morton J. Horwitz, Duncan
overturns accepted norms and standards in Kennedy, and Katharine A. MacKinnon.
legal theory and practice. Proponents of this Although CLS has been largely a U.S.
theory believe that logic and structure movement, it was influenced to a great
attributed to the law grow out of the power extent by European philosophers, such as
relationships of the society. The law exists to nineteenth-century German social theorists
support the interests of the party or class that Karl Marx, Friedrich Engels, and Max
forms it and is merely a collection of beliefs Weber; Max Horkheimer and Herbert
and prejudices that legitimize the injustices Marcuse of the Frankfurt school of German
of society. The wealthy and the powerful use social philosophy; the Italian marxist
the law as an instrument for oppression in Antonio Gramsci; and poststructuralist
order to maintain their place in hierarchy. French thinkers Michel Foucault and
The basic idea of CLS is that the law is Jacques Derrida, representing respectively
politics and it is not neutral or value free. the fields of history and literary theory. CLS
Many in the CLS movement want to has borrowed heavily from Legal Realism,
overturn the hierarchical structures of
PHILO REVIEWER | Dean Ulan (2024)
the school of legal thought that flourished in which provide the best constructive
the 1920s and 1930s. interpretation of the community’s legal
practice.
Like CLS scholars, legal realists rebelled
against accepted legal theories of the day Law as integrity states that the law must
and urged more attention to the social speak with one voice, so judges must
context of the law. CLS includes several assume that the law is structured on coherent
subgroups with fundamentally different, principles about justice, fairness and
even contradictory, views: feminist legal procedural due process, and that in all fresh
theory, which examines the role of gender in cases which comes before them, judges must
the law; critical race theory (CRT), which is enforce these so as to make each person’s
concerned with the role of race in the law; situation fair and just by the same standard –
postmodernism, a critique of the law that is to say, treat everyone equally.
influenced by developments in literary Integrity is both a legislative and an
theory; and a subcategory that emphasizes adjudicative principle. Legislative principle
political economy and the economic context requires law makers to try to make the laws
of legal decisions and issues. a. Roberto morally coherent. Lawmakers are required
Unger: Hegemony, Deconstruction, and to ask the assumption that integrity is a
Hermeneutics of Suspicion. distinct ideals of politics, for politics, and
honors politics. If it fits these dimensions,
then adjudicative principles is ready to
9. Interpretivist Approach - Interpretivist begin.
or Constructivist Theory. Robert
Dworkin: Interpretivist Approach and
the “Best Fit Theory” 10. Lord Mansfields’s Principle of
Commercial Law
Ronald Dworkin: Interpretivist Approach
and “Best Fit Theory” Key to Ronald Lord Mansfield, who became Chief Justice
Dworkin’s Constructive Interpretation of of the King’s Bench in 1756, taught that any
legal practice is the conception of Law as satisfactory system of commercial law must
Integrity. Law as integrity holds a vision for be in harmony with the recognized
judges which states that as far as possible mercantile customs of other civilized
judges should identify legal rights and duties nations. As a natural law theorist, he said
on the assumption that they were all created that “mercantile law is not the law of a
by the community as an entity, and that they particular country, but the law of all
express the community’s conception of nations.”
justice and fairness. According to law as
integrity, proposition of law are true if they Mansfield sped up the judicial system by the
figure in or follow from the principles of submission of motions. He also admitted
justice, fairness and procedural due process,
PHILO REVIEWER | Dean Ulan (2024)
witnesses to prove the law of merchants, and Loardet v. Johnson (1778), an unreported
considered it as a point of law. case, where he said that an inventor must
specify the compositions of his gunpowder
In Carter v. Boehm (1766, 3 Burr 1905), to disclose the procedure as he would direct
Mansfield brought forth the duty of an artist: “The inventor has the benefit
uberrima fides (assumption of good faith) to during the term, and the public has the
an insurance claimant. In the case, Governor benefit after.” Meanwhile, Mansfield’s
Carter of Fort Marlborough, despite Somersett’s Case (1772, 20 State Tr 1) ruled
knowing that the fort cannot resist attack that the slave trade is unlawful and that “the
from European settlers, filed for insurance black must be discharged.” Mansfield also
claim from Boehm when the fort was taken formulated the “Lord Mansfield’s Rule,” an
by the French. Mansfield denied the old rule in construction that “the
insurance claim, saying: Insurance is a declarations of a father or mother cannot
contract based upon speculation. The special be admitted to bastardize the issue born after
facts, upon which the contingent chance is to marriage.” Today, this has meant the
be computed, lie most commonly in the presumption of a husband’s paternity of a
knowledge of the insured only; the child born within a marriage.
underwriter trusts to his representation and
proceeds upon the confidence that he does Lon Fuller, in Positivism and Fidelity to
not keep back any circumstance to his Law: A Reply to Professor Hart, criticized
knowledge...Good faith forbids either party the recent positivist and formalist approach
by concealing what he privately knows, to to commercial law and its belated
draw the other into a bargain from his counterrevolution against Mansfield’s
ignorance of that fact, and his believing the application of natural law principles of
contrary. equity. Referrals to arbitration courts and
arbitration clauses are proof that even
Mansfield supported free trade, as he was commercial contracts cannot be reduced to
steeped into ancient Greek and Roman mechanistic, matter-of-form activities. “The
trading history and writers such as Cicero matter has reached a stage approaching
and Xenophon. Influenced by their natural crisis as commercial cases are increasingly
law principles, he believed that equity being taken to arbitration,” Fuller wrote.
should be applied by the courts. In Luke v. “The chief reason for this development is
Lyde (1759, 2 Burr 882), he made merchant that arbitrators are willing to take into
sails pay for freight lost at sea, citing the account the needs of commerce and ordinary
Roman Pandects, arguing that a carrier is in standards of commercial fairness.”
the nature of an insurer.
the opinion is wrong, refuting it will allow 13. John Rawls Theory of Justice
people to better understand their own
opinions. Liberty of action is desirable for In A Theory of Justice, John Rawls
parallel reasons. The nonconformist may be proposed that we should do a “reflective
correct, or she may have a way of life that equilibrium” whenever we make laws or
best suits her needs, if not anybody else's. decisions. He argued that we must imagine
Additionally, these nonconformists ourselves, under a “veil of ignorance”
challenge social complacency, and keep unaware of our place in society. This theory,
society from stagnating. conveys the idea that the principles of
justice are agreed to an initial position that is
Mill's argument proceeds in five chapters. In fair provided that our inviolability is
his first chapter, Mill provides a brief founded on this fundamental virtue. In this
overview of the meaning of liberty. He also sense, Rawls asserted that in making
introduces his basic argument in favor of choices, think that you would randomly fit
respecting liberty, to the degree it does not into anyone’s shoes.219 This way, you
harm anybody else. His next two chapters would make it a point that everyone would
detail why liberty of opinion and liberty of get a fair chance. Since you could end up
action are so valuable. His fourth chapter being anyone, you would wish a little of
discusses the appropriate level of authority something for everyone. This is the “original
that society should have over the individual. position”.
His fifth chapter looks at particular
examples and applications of the theory, to It is a general accord of the society on the
clarify the meaning of his claims. establishment of rules and principles that
will govern them and deemed to be accepted
by all. Such processes are acknowledged by
Mill's essay has been criticized for being
the majority, if not all, of the people base on
overly vague about the limits of liberty, for
the predominant systematic theory which is
placing too much of an emphasis on the
utilitarianism. However, it was challenged
individual, and for not making a useful
by the Justice as Fairness theory of John
distinction between actions that only harm
Rawls arguing tha minorities should have
oneself, and actions that harm others. That
not sacrificed their life for the sake of the
said, the essay does provide an impassioned
majority.
defense of nonconformity as a positive good
for society, and an equally impassioned The essence of this theory is for us to
reminder that no one can be completely sure understand that justice should be distributed
that his or her way of life is the best or the fairly regardless of our conditions and
only way to live. personal qualities. In other words, justice
must not favor a certain group of people
only by considering their identity but rather,
it must be enjoyed by all and without
PHILO REVIEWER | Dean Ulan (2024)
and the New Testament that is the teachings according to the customs of that state or city.
of Jesus. Although there are some teachings For instance, Natural law urges the
in the Divine law which are unpunishable, preservation of a person’s life, if translated
those who disobey will be left to God to be to human law, the Philippines has laws
judged and punished. Thus, the purpose of governing automobile traffic which will
divine law is for no evil would remain prevent accidents. Human law also provides
unforbidden and unpunished. for sanctions and punishments to individuals
that threaten to harm others such as the
NATURAL LAW crime of murder or theft.
Natural law is the guiding tool of human
beings. It is “natural law” because it is the
use of reason in navigating their lives as
rational beings created by God. In this way
humans can participate in the eternal law.
HUMAN LAW
That is natural law can be applied to all
humans while human law varies with the
time, place and circumstances.
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