3104 Legal Philosophy Module 1-3, 7 Cases
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133 Terms
Law
It is the rule of conduct, just, obligatory, formulated by legitimate power for the common observance and benefit.
Marcus Tullius Cicero
According to __________________, law is a natural force, the highest reason, one “implanted in nature, which commands what ought to be done and forbids the opposite. It is the mind and reason of the intelligent man whose natural function is to command right forbid wrongdoing.
Law
According to Marcus Tullius Cicero, _____ is a natural force, the highest reason, one “implanted in nature, which commands what ought to be done and forbids the opposite. It is the mind and reason of the intelligent man whose natural function is to command right forbid wrongdoing.
Marcus Tullius Cicero
He is a Roman Stateman, Lawyer, Scholar, Philosopher, Writer and Academic Skeptic
Thomas Aquinas
He is an Italian Dominican friar and priest, an influential philosopher and theologian.
Thomas Aquinas
According to ___________________, law is a rule and measure of human acts pertaining to reason; in all those things that are inclined to something
reason
According to Thomas Aquinas, law is a rule and measure of human acts pertaining to __________; in all those things that are inclined to something
Law
According to Nilo vs. Court of Appeals, it is a “rule established to guide our actions with no binding effect until it is enacted, thus, it has no application to past times but only to future time.”
Nilo vs. Court of Appeals
According to _________________, law is a “rule established to guide our actions with no binding effect until it is enacted, thus, it has no application to past times but only to future time.”
Lapitan vs. Philippine Charity Sweepstakes Office
What case defined law in its (1) general and abstract sense; and (2) specific and concrete sense?
specific and concrete sense of law
According to Lapitan vs. Philippine Charity Sweepstakes Office, it is “a rule of conduct, just, obligatory formulated by legitimate power for common observance and benefit”
general and abstract sense of law
According to Lapitan vs. Philippine Charity Sweepstakes Office, it is “The science of moral laws founded on the rational nature of man that governs his free activity for the realization of the individual and societal ends of life.”
Philosophy
Philosophia , philos, ‘love’, or philia, ‘friendship’ ‘affection’, affinity for’ ‘attraction toward’.
Philosophy
It seeks to discover the essence, nature and foundation of things as opposed to their appearance. It is the search for the reality and truth of things.
Sophia
According to Pythagoras of Samos, “_________” meant the knowledge of the underlying reasons or causes for things as they appear to us, knowing the reasons why a thing is what it is”
Pythagoras of Samos
According to ________________, “Sophia” meant the knowledge of the underlying reasons or causes for things as they appear to us, knowing the reasons why a thing is what it is”
Pythagoras of Samos
He is a Greek philosopher and mathematician
Robert Browning
He states that “Philosophy is the search for meaning”.
Robert Browning
He is an English poet and playwright.
Fr. Ranhilio Aquino
He is an eminent Filipino legal philosopher. He defined Philosophy as “knowledge of things by their ultimate causes or reasons”
Deeper Understanding, Wisdom
Enumerate the 2 Uses of Philosophy
Legal Philosophy
A systematic study that:
1. seeks to understand the nature and essence of law
2. its definition and elements
3. the sources of its authority
4. its various applications and development
5. its role in society
Analytical Jurisprudence, Normative Jurisprudence
Enumerate the 2 Components of Legal Philosophy
Analytical Jurisprudence
It identifies the fundamental components of law in an effort to describe what it is and what it is not.
Normative Jurisprudence
It investigates both the non-legal norms that shape law and the legal norms that are generated by law as guide to human action.
Teleological or Natural Law Theory, Positivist or Command Theory, Interpretivist or Constructivist Theory, Realist Theory, Critical Theory
Enumerate the 5 Legal Theories
Teleological or Natural Law Theory
This Legal Theory:
“GOING NATURAL”
“Do to others whatever you would like them to do unto you. This is the essence of all that is taught in the law and the prophets” - I Matthew 7-12
According to this legal theory, nature is how people normally behave and are expected to behave and are expected to behave.
Positivist or Command Theory
This Legal Theory:
“THE LAW SAYS SO”
“SO LET IT BE WRITTEN. SO LET IT BE DONE”
They are positive on what the law posits by the authority given to the State or by socially accepted rules.
Interpretivist or Constructivist Theory
This Legal Theory:
“THE SPIRIT OF THE LAW”
“The judge is nothing but the law speaking” - Benjamin Whichcote, Moral and Religious Aphorisms
They point out that the law is more than explicitly adopted rules and has merits and principles that can be interpreted or constructed by the courts to contribute to the growth of law.
Benjamin Whichcote
A proponent of Interpretivist or Constructivist theory who is a Moral and Religious Aphorist stated that: The judge is nothing but the law speaking.
Realist Theory
This Legal Theory:
“GET REAL”
“The Law, wherein, as in a magic mirror, we see reflected, not only our own lives, but the lives of all men that have been! When I think of this majestic theme, my eyes dazzle.” - Olive Wendell Holmes, Jr. Speech to the Suffolk Country Bar
They focus on human realities that are often overlooked by hard law, technicalities, and abstract policies
Olive Wendell Holmes Jr.
He said in his speech to the Suffolk Country Bar: “The Law, wherein, as in a magic mirror, we see reflected, not only our own lives, but the lives of all men that have been! When I think of this majestic theme, my eyes dazzle.”
Critical Theory
This Legal Theory:
“LAW OF THE STATUS QUO”
“In a capitalist society, individuals are controlled by a pitiless law usually beyond their comprehension. The alienated human specimen is tied to society as a whole by an invisible umbilical cord: the law of value.” - Che Guevarra, Man and Socialism in Cuba
This theory explains that the law has been the means to enshrine and correctively impose the wishes of the dominant group or institutions.
Che Guevarra
He is a Man and Socialism in Cuba that states: “In a capitalist society, individuals are controlled by a pitiless law usually beyond their comprehension. The alienated human specimen is tied to society as a whole by an invisible umbilical cord: the law of value.”
Law as rules
A common misconception of law is it is but a set of rules and that when dispute arises, all a judge does is find the right rule and apply it mechanically, even ruthlessly. This is how formalists regard law. This definition had come under severe criticism. Some feel it is a reductionistic, i.e. simplistic, way of looking at law as it fails to take into account the totality and social context of the law.
Law as rules
Another criticism of the ____________ approach is it merely caters to efficiency e.g. quick disposal of cases from the court dockets. That it is dismissive of the other aspects of human experience; that it does not factor in the relationship of the litigants.
Reductionistic
Law as rules is viewed as ____________ which means: simplistic, way of looking at law as it fails to take into account the totality and social context of the law.
William O. Douglas
According to ______________, the law is not a series of calculating machines where definitions and answers come tumbling out when the right levers are pushed. He, himself a recipient of life's miseries and deprivations who as a student worked on odd jobs as waiter, janitor, and cherry picker, was quoted to have said: “I worked among the very, very poor, the migrant laborers, the Chicanos and the I.W.W's who I saw being shot at by the police. I saw cruelty and hardness, and my impulse was to be a force in other developments in the law.”
Anatole France
Indeed, while the constitution mandates 'equal protection of the laws' this did not prevent 19th century French satirist _______________ from observing that: the law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
Law as process
Law may also be regarded as a ________, the rules being merely an aspect of the _______. Laws are not just statutes per se but the whole gamut of the life experiences of lawmakers, law enforcers, law breakers or followers of law and lawyers, judges and legal theorists.
Law as process
“Law is very like an iceberg; only one-tenth of its substance appears above the social surface in the explicit form of documents, institutions, and professions, while the nine-tenths of its substance that supports its visible fragment leads a sub-aquatic existence, living in the habits, attitudes, emotions and aspirations of men.”
Societal institutions
Under Law as process, what do you call the following: the family, community, workplace, school or religion.
Obedience, Generality, Promulgation, Rule of Law
Enumerate the 4 Common Characteristics of Law
Obedience
The element of ___________ is a common characteristic present in all types of law. The degree or freedom to which a subject may disobey as well as the extent or coverage of the law is what differentiates the various types of law.
Generality
The principle of __________ sees laws as ‘generally’ rather than ‘particularly’ framed. Under this principle, the law is the law regardless of particulat attendat circumstances.
particularity
The principle of generality is sometimes contrasted with that of _____________.
Frederick Schauer
Case study in the Reading Material: Who distinguished the particularistic from the generalistic decision maker?
particularistic
Case study in the Reading Material: If a police officer stops a driver for unsafe driving, this police officer making a decision whether to summon the driver to appear in court would take into account the condition of the road, the amount of traffic, the weather, the time of day, the type and condition of the car, the experience and previous driving record of the driver, the explanation offered by the driver, and perhaps even the ability of the driver to pay the fine. At its extreme, this decision-making style is about taking everything into account.
generalistic
Case study in the Reading Material: By contrast, this decision-making style would not focus so closely on particular drivers driving particular cars under particular circumstances, but would rather have made the decision in advance about an entire category. Sll drivers driving all cars under all conditions on a moderately large stretch of highway. Whatever real differences might exist among actual drivers, actual cars, actual conditions, and actual locations would be suppressed in the service of making decisions based on large categories rather than on exceedingly narrow and situation specific facts.
Promulgation
In Aquinas’ Treatise on Law, a question was asked whether this characteristic is essential to law. He said it is essential, and refuted the three objections which argued that this charateristic of law is not essential to law.
rule of law
It is an established legal principle which posits that whenever a legal issue presents itself, it must be decided by applying the established principles of law. In so doing, the will and personal "discretion" of the judge is set aside, and he is must apply the known principles of law according to the will of the legislator.
principle of governance
According to the report of UN Secretary-General Kofi Annan to the UN Security Council, "rule of law" is a "______________" in which all persons, institutions and entities, public or private, including the State itself, are "accountable to laws
Kofi Annan
According to the report of UN Secretary-General ___________ to the UN Security Council, "rule of law" is a "principle of governance" in which all persons, institutions and entities, public or private, including the State itself, are "accountable to laws.”
Rule of Law
It is:
publicly promulgated
equally enforced
independently adjudicated, and
consistent with international human rights norms and standards.
legal principles
Rule of law also requires adherence to the following ______________: supremacy of law; accountability to the law; fairness in the application of the law; separation of powers; participation in decision making; legal certainty; avoidance of arbitrariness; and procedural and legal transparency.
Supremacy of law
This concept means that the rule of law is higher than any person’s discretion or will
Accountability to the law
This concept means that one is liable to be called on or to render an account before the law
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules are not clear, or are ambiguous. This means cases are decided ad hoc, or on a case to case basis.
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules are clear. The rules are simply and clearly written such as there could be no doubt what they mean.
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: The rules are not made available to those affected by them.
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: The rules are made known to those affected by them. The lawmakers and administrators made sure every person affected understood the rules.
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Retroactive laws are used in an abusive sense, to suit the personal whims of officials.
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: No retroactive law, unless for the benefit of the accused or those already convicted.
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules cannot be understood— as to when it begins, who are or are not affected, what acts are covered and the like.
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules are understood clearly.
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules contradict one another.
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules are consistent and support one another.
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules require acts which are difficult or beyond normal compliance.
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules only require those affected what they can normally achieve.
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules are changed so often—it is difficult to follow which one is the latest.
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Rules generally remain constant.
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: There is a gap between the rule (law) as such and the implementing regulations (administration).
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: The rules are uniformly observed by the lawmakers, department heads, regional directors, local officials and the police.
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Appellate steps unclear.
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Appellate steps and other grievance mechanism is clearly spelled out.
Poor legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: Penalty is draconian and unreasonable.
Excellent legal system
Determine whether this is a Poor or Excellent Legal System based on the Case Study of the Reading: The penalty is commensurate with the offense.
International Law
It is that branch of law that governs relationships between countries and other multinational ‘actors’ e.g. agencies and organizations, at the international level.
International Law
Its purpose is for nation-states to maintain peaceful and productive relationships among each other. It relies on agreement or consensus from among its member states.
world constitution nor world legislature
At present, there is neither a ‘______________' nor '______________' from which a binding world law could be enacted.
not true law
If law is a rule of conduct which a community considers as 'binding upon its members,' then some argue that international law is _______________.
International law is not true law
In this view of International Law:
There is no binding law that applies to all countries;
There is no “world congress” legislating laws for mankind;
There is no “world executive” to enforce international law in case of violation.
If the parties are free to disregard it and if it cannot be enforced.
Article 38(1) of the Statute of the International Court of Justice
This document enumerates what are now generally accepted as the “sources” of international law.
International conventions (treaties)
A source of International Law: “expressly recognized by the contesting states;”
International custom
A source of International Law: “evidence of a general practice accepted as law;”
General principles of law
A source of International Law: “recognized by civilized nations,”
Judicial decisions and teachings
A source of International Law: “subsidiary means for the determination of the rules of law.”
Primary sources
Determine whether it is Primary OR Subsidiary/Secondary Sources of International Law: treaties and customs
Subsidiary/secondary sources
Determine whether it is Primary OR Subsidiary/Secondary Sources of International Law: judicial decisions and juristic writings of authorities in the field
Universal Declaration of Human Rights
The United Nations does not legislate. At best it articulates international norms (e.g. ________________________) or encourages member countries to enter into conventions (treaties) that binds the signatory countries.
United Nations
At best, this international institution articulates international norms (e.g. Universal Declaration of Human Rights) or encourages member countries to enter into conventions (treaties) that bind the signatory countries.
Article 42 of the UN Charter
This document states that the UN Security Council may mobilize armed forces only in cases of threats to peace, breach of peace and acts of aggression.
International law is true law
In this view of International Law:
Applicability to all countries is not a requirement for a rule to be considered as law;
A world congress and executive are not essential components in the definition of law;
International customary norms and treaties do have binding effects.
non-interference clause
Article 2(7), otherwise known as the __________________ of the U.N. Charter, gives each member state of the United Nations the right not to be intervened in its domestic affairs.
reciprocity
Obedience of international law by member states is based on the principle of ____________.
Principle of reciprocity
This means a nation obeys because it wants other nations to do the same, and it wants to be seen as a ‘law-abiding"‘ country by other nations.
True
TRUE OR FALSE: In practice, however, no sovereign state can be forced to obey international law without its consent or willingness to do so.
Chapter 7
An exception is found in __________ of the United Nation Charter which grants the Security Council coercive power with respect to threats to the peace, breaches of peace and acts of aggression. Enforcement may be done through diplomatic, economic, or military sanctions to enforce international decisions.
Chapter 6
___________ of the United Nations Charter also outlines the means used for peaceful settlement of disputes. These include the use of good offices, mediation and fact-finding.
Adolf Eichmann
On May 11, 1960, Israeli agents kidnapped Argentina citizen _______________ from Argentine territory. Israel’s act was unilateral, and failed to comply with international or national (Argentine) due process laws. A clear violation of international law, it sparked protests from many states.