Law, Politics, and Philosophy

Tuguegarao City, Cagayan. Atty. MICHAEL JHON M. TAMAYAO manages this blog. Contact: mjmtamayao@yahoo.com.

Philosophy of Law; Introduction

HEADERLecture 1

PHILOSOPHY OF LAW

 

INTRODUCTION

            Nomenclatural Distinction              

At the outset, a cursory distinction must be made between “Philosophy of Law” and “Legal Philosophy.”

  1. While they both deal with Philosophy and Law, their field of emphasis is different. Philosophy of law is a branch of philosophy, and therefore deals primarily with philosophy. Legal Philosophy is a discipline in law, and therefore deals primarily with law. In other words, their operational base is different – Philosophy of law is within philosophy, whereas Legal Philosophy is within the legal academy.[1]
  2. Consequently, because of the difference in their field of emphasis, it seems that philosophy of law is broader than legal philosophy. Philosophy is an all-encompassing subject that may have as its subject matter anything under the sun; thus the so-called philosophy of X, and philosophy of “law” is just one of the many possible subjects. The philosophical approach is highly abstract and seeks for the ultimate “whys” and “wherefores.” Legal theory deals specifically with how institutions and legal processes are legitimized or justified.
  3. The distinction, however, is never clear. They overlap in terms of subject and themes. And in pursuit of a more academic discussion in a post graduate course, it is becomes unimportant to distinguish philosophy of law and legal philosophy.

Schools of Thought

There are two major contending schools of thought in philosophy of law: Natural Law Theory and Legal Positivism.

  1. From the time of the ancient Greeks until the seventeenth century, natural law was the only legal theory. In brief, natural law understands law as an “ordinance of reason” and “intimately connected to morality;” hence law must be “reasonable” and “just” otherwise it is not law.
  2. Legal positivism came after, generally contending that the law is only a kind of “social technology” which does not necessarily have a moral character. Under this theory, what the law does is regulate the behavior of its subjects and resolves conflict between them.[2] A law exists not for its moral or rational underpinnings but because of the social mechanisms that promulgate it.
  3. Roughly speaking, the two schools of thought differ in their understanding of philosophy of law, in that natural law almost makes philosophy of law as a “branch of moral or ethical philosophy,” while legal positivism takes philosophy of law as the “philosophy of a particular social institution.”[3]

Natural Law

Legal Positivism

Law and morality are intimately connected.

Law and morality are different.

Philosophy of law is a branch of moral philosophy.

Philosophy of law is the philosophy of a particular social institution.

In essence, law is an ordinance of reason.

In essence, law is an institutional construct.

            Questions asked in Philosophy of Law

  1. Logically, the main question asked in philosophy of law is “what is law?” And since it could be answered in various ways, contending schools of thought also emerge from it, as seen above.
  2. Other related questions would be – Is law the same as morality? Is it universal or just man-made? Does it have a specific purpose? Is it for the attainment of justice? Is it for socio-economic and political equality?
  3. From these questions, it could be seen that philosophy of law has a very vast scope. To limit it therefore, emphasis will be placed upon leading theories only (Natural and Legal Positivism).

            Importance of Studying Philosophy of Law

  1. It must be emphasized that the social, moral, and cultural foundations of law, and the theories which inform and account for them, are no less important than the law’s “black letter.”[4] A well-entrenched understanding of the printed provisions of law is impossible without knowing the spirit or philosophy which lies underneath them.
  2. Legal theory has a decisive role to play in defining and defending the values and ideals that sustain our way of life.[5] When laws are threatened of abolition, the defense always takes recourse in philosophy to justify their existence. Laws are at the heart of every legal institution, including the state, so that the latter’s legitimacy is anchored on the philosophical justification of its laws.
  3. Philosophy of law is not among the eight bar subjects. But this does not mean that it is useless in taking the bar exams. Many examinees fail because they lack philosophical aptitude and legal reasoning. In truth, the foundation of all bar subjects is philosophy. Take for example, constitutional law and criminal law:
  4. Constitutional law, which is under political law, is based on critical liberal philosophies enunciated in Article II (Declaration of Principles and State Policies) of the 1987 Philippine Constitution. Understanding the philosophical foundations of political law is necessary to tie up its numerous details.
  5. Criminal law likewise is based on various philosophies and principles. Rationalizing in the bar demands a succinct understanding of how crimes are defined and penalized according their underlying philosophies.
  6. For example, why should penal laws be liberally interpreted in favor of the accused? Justice, which is a principal philosophical concept, explains this, in that the disadvantaged (in this case, the accused) should be given more opportunities than the advantaged (in this case, the State). Thus, the rule of “pro reo,” which provides that the penal laws should always be construed and applied in a manner liberal or lenient to the offender. This rule is constantly repeated as the underlying philosophy in many provisions of the Revised Penal Code.
  7. Philippine criminal law system uses four philosophies depending on the circumstances:

(1) Classical or juristic theory which provides that man, who possesses freedom, is punished for an act or omission willingly, voluntarily, and intelligently performed. Under this philosophy, man should be adjudged or held accountable for wrongful acts so long as free will appears unimpaired,[6] so that if one lacks free will and intelligence, he should not be held criminally liable. This philosophy is so basic it is implied so often in bar exams.

(2) Positivist or Realistic Theory which provides that man is inherently good but his acts or behavior may be conditioned by his environment. Because of his upbringing, social environment and associations he may become socially ill or an offender. Thus, under this philosophy penal laws are meant to “reform” and the penalties are considered “corrective or curative.” Jails are reformatories and penalties are imposed after an examination of the circumstances of the offender. Unlike the classical theory which emphasizes on the offense itself, positivistic theory emphasizes on the offender and not on the offense.

(3) Ecclectic (or mixed) Philosophy which combines good features of classical and positivist theories. As contended by many legal theorists, the classical theory should be applied to heinous crimes, whereas the positivist should be applied to socio-economic crimes. The Philippines generally adapts the eclectic philosophy

(4) Utilitarian Theory which is based on the maxim “greatest happiness for the greatest number of people.” The fundamental idea behind this philosophy is that the primary function of punishment in criminal law is to protect the society from potential and actual wrongdoers.

            Approaches in Legal Theory

There are two approaches in explaining law: descriptive and normative.[7]

  1. Descriptive legal theory seeks to explain what the law is, and why, and its consequences.[8] It is about the facts of law. It has three principal types:
  2. “Doctrinal” which seeks to elucidate a case based on an “underlying theory”;
  3. “Explanatory” which seeks to explain why the law is as it is; and
  4. “Consequential” which seeks to discuss the consequences of a certain set of rules.
  5. Normative legal theory is concerned with what the law “ought to be.”[9] It is about legal values. As such, it is closely associated with moral and political theories.
  6. It is important to note however that there is no rigid delineation between the two. Often, one approach leads to another. Utilitarian normative theory, for example, needs a descriptive account of the consequences of rules, and vice versa.

NATURAL LAW THEORY

            Origin of the Natural Law

  1. The term “natural law” is misleading. At the outset, it must be made clear that it does not refer to the physical laws of nature. Natural law theory originated from ancient Greece as a moral theory, which tackles the all-important issue of the “good or happy life.” Evidently, it seeks to explain the nature of morality and not of law. The question, therefore, is how did it become a theory of law?
  2. During the time of the Greeks, they consider morality as field separate and distinct from religion. For them, a person can be moral even if he does not believe in God. This is possible by means of reason. Man is capable of thinking, and it is by using his reason that he comes to understand what is right from what is wrong. He knows, for instance, that killing is wrong because it is unreasonable and not because God says so. A person therefore learns to act rightly through his faculty of reason.
  3. Since acting rightly necessarily includes others, as one’s act affects another, individual morality includes politics. Knowing how to act rightly necessarily involves how to deal rightly with one’s fellow men. Inasmuch as a moral theory involves a rule of conduct, it may also be construed as law in the broad sense. It is along this line that the moral theory developed into a theory of law.
  4. Aristotle was among the first thinkers who embarked on the Natural Law Theory. The bridge between “individual morality” and “social life” is encapsulated in his assertion, “man by nature is a political animal.” This means that it is ingrained in each person the natural tendency to live in a community because it is only in a community that he becomes truly human – he becomes civilized, educated, and truly rational. Outside the city (polis) he is just an animal.
  5. Also according to Aristotle, man is a rational animal, meaning aside from his “animality” he also has “rationality,” which puts him over and beyond other animals. Part therefore of the nature of man is his “reason.” In other words, it is natural for man to reason out. It is along this context that a moral theory, which is based on reason, is said to be a natural theory. When one says, “there is something unnatural about this,” what he means is there is something unreasonable about the thing. So if one acts irrationally, it also means he is acting unnaturally. It could therefore be said that the essence of law under the natural law theory is its rationality.
  6. At this juncture, the connection of the following concepts must be clear: morality – reason – law. Morality demands reason. Reason determines the conduct of man. The dictates of morality and reason constitute a norm of conduct. Morality and reason are the bases of law.
  7. It was said earlier that ethics leads to politics. In fact, the ethical treatise of Aristotle was a preamble to his political treatise. The pursuit of the good life requires a determination of the ideal society or government. Nowadays, “natural law” is generally taken to mean only that part of the original moral theory which explains the way that the law, narrowly construed, operates as part of a broader moral life of individuals.[10] Political institutions, like the states, are legitimized or justified by the moral theory from which they were drawn. Using the political institution theorized by Plato (teacher of Aristotle), for instance, the rulers must be wise and morally upright. Their authority depends on how they embody the political criteria of wisdom and morality.
  8. Rome carried on the Greek and Hellenistic philosophical tradition, but it was faced with the problem of relativism, which rejected universal standards. In the ancient world, Rome was the melting pot of all cultures, beliefs, and races, somewhat analogous to the United States now. Relativism was particularly dangerous to the Romans because it could prevent them from formulating workable rules which would uniformly govern everyone within their vast empire. The varied customs and practices of particular cultures must be replaced by laws recognizing universal or common nature.[11] The natural law theory as it developed in Rome sought to explain the common nature of man which is the basis of morality or natural law.
  9. The dominant philosophical school in ancient Rome was Stoicism. The stoics emphasized on the importance of the performance of one’s duty and accorded primacy to reason. According to them, a person should concern himself only of the things that are within his power, i.e. only the activities of his soul. He cannot control all other things. Thus, to be rational simply means to perform one’s duties conscientiously and virtuously because he cannot do otherwise.
  10. What resulted from this philosophical activity was the jus gentium, which was a legal order meant to apply to all persons throughout the Roman Empire. At first, the jus gentium was applied to foreigners or second class citizens, then eventually it became a superior legal order or universal application. The rise of jus gentium into a superior law was caused by the need to provide a universal standard of justice.
  11. Critical to understand under the natural law theory, as expounded by the Stoics, is the Latin maxim “lex injusta non est lex” or “an unjust law is not a law.” If, for example, the Philippine Congress passes a statute that orders the taking of all farmlands without need of paying the landowners, then such statute would provide no law at all. It must be pointed out clearly, that an unjust law (or one that deviates from the principles of morality or natural law) is not even a “bad law” but rather, it is not a law at all. Natural lawyers are not just evaluating the morality of the law. For them, if a law is immoral it is not law at all.         
  12.          Positivist thinkers are particularly critical at this Latin maxim. They distinguish law from morality. They argue that an immoral law, as long as it was passed validly by the Legislature, is still a law, even though it is a bad law. For them, a law may be wicked or harsh, but just the same it must be followed because it is still the law. This does not mean that the positivist lawyers are not critical about the morality of the law. Jeremy Bentham, for instance, a positivist, was a social reformer, who attacked “bad” laws. Take note, however, that what he attacked was the “wickedness” of laws and not the “validity” of the laws.
  13. Hence, the principal goal of natural lawyers is to establish the connection of law and morality. The intimate connection of the two should support their claim that an immoral law is not a law at all. It must be emphasized that as a natural lawyer one does not just evaluate the morality of a law because even the positivists do it. What a natural lawyer does is to establish the necessary connection of law and morality so that when a norm is immoral, he could prove that it is not a law itself.

[1] See William Edmundson, Introduction, “The Blackwell Guide to the Philosophy of Law and Legal Theory” (ed. by Golding and Edmunson) Blackwell Publishing (2005), p. 1.

[2] Jurisprudence and Legal Theory, University of London External Programme, p. 61.

[3] See ibid.

[4] Raymond Wacks, Philosophy of Law: A Very Short Introduction, Oxford University Press (2006), p. xiv.

[5] Ibid, p. xvi.

[6] People v. Genosa, September, 2000

[7] As to how law should be understood, it may be natural or positivist. But as to the manner of studying it, it may be descriptive or normative. Natural law theory and positivist theory use the two approaches.        

[8] Wacks, Ibid.

[9] Ibid.

[10] Jurisprudence and Legal Theory, University of London External Programme, p. 62-63.

[11] See Ibid.

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This entry was posted on August 17, 2014 by in Uncategorized and tagged .

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Tuguegarao City, Cagayan Atty. MICHAEL JHON M. TAMAYAO manages this blog. He is currently starting his private law practice. Contact: mjmtamayao@yahoo.com; Tel. No. 09353343739. PROFILE: Atty. Tamayao is currently teaching law, philosophy and social sciences at the Cagayan State University. He finished his Bachelor of Arts in Philosophy degree at the Faculty of Philosophy, University of Santo Tomas and graduated in 2005, garnering the highest academic honors in that Academic Year. He pursued Licentiate in Philosophy and Master of Arts in Philosophy degrees at the same university, completing them both in 2007. In 2009, he took up Bachelor of Laws and Letter at the Cagayan State University, where he also teaches. He passed the 2013 bar exams, and now currently taking up Master of Laws and Letters at the San Beda Graduate School of Law.

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