LAW:

ITS Meaning and Concepts

Lawyers: What is the law applicable to a given issue?
Philosophy of Law: What is law?
Law- unique socio-political phenomenon, with more or less universal characters that can be
discerned through philosophical analysis.
General jurisprudence-meant to be universal; assumes that law possesses certain features,
and it possesses them by its very nature.
Reasons why the philosophical interest in elucidating the universal characteristics of law
remain to be explained:
1. There is a sheer intellectual interest in understanding such a complex social phenomenon.
2. Law is also a normative social practice which purports to guide human behaviour giving
rise to reasons for action.
3. Law is not the only normative domain. Our culture, morality, religion, social conventions,
etiquette and so on also guide human conduct similar to law.
Philosophy of law as a discipline directly deals with the different definitions and the very
nature of law. It provides a reflection on what is right and ideal. Theories were presented to
explain the nature and concepts of law.
LAW
Comprehensive sense- Law means any rule of action or norm of conduct applicable to all
objects of creation.
Specific sense- Law means a rule of conduct, just, obligatory, promulgated by legitimate
authority and of common observance and benefit.
LAW, MORALS and CUSTOMS
Law is but one of the methods of regulating human conduct. Standards of morality also serve
as social regulators.
Morals- aggregate of all the rules of human conduct growing out of the collective sense of
right and wrong in the community. The field of morals include not only duties of man to his
fellow beings but also to himself and to his God.
An act may be in conformity with law but contrary to morals and vice versa.
What is moral may not be legally demanded.
Morals may be sources of law but morals and laws are two different concepts.
Customs- refer to those that are habitually done in the community. They are far less
imperative in their force than law for they do not normally imply ethical evaluations.
Primitive law is customary law wherein its sanction lies in habit. However, with the advances
of political organization, customary law begins to break down rapidly.
As with morals, customs may be sources of contemporary laws.
LAW and its CONCEPTS
Rule of Conduct- the law mandates what is right and prohibits what is wrong.
-

It serves as a guide to right the conduct of people

It is a form of social control over the behaviour of individuals in a given society.

Objective: The maintenance and preservation of order in society and promotion of

common good.

Just- the law commands respect and observance

-

the law is in accordance with reason

It applies equally to all persons in society

Obligatory- no one is above the law. The law binds the human will
Enacted by a Legitimate Authority- for the law to become binding
- Holds true for positive law as the laws are established and promulgated by competent
authority
- Holds true for natural law as the laws are revealed through reason as established and
promulgated by the Author of nature and imposed upon all men
Common good- the end of law
The law must guide and enable man to reach the perfection of his nature as a free and
rational being not merely as an individual but as a member of a social unit,
- The law seeks to attain collective wants and needs
NATURE OF LAW
Proponen
ts
Historical
View

Interested in the origin of law and its growth and development

Concerned with the causes in the growth and development of law
Custom is a necessary influence to the existence of formal or
positive law
Less concerned to the law as sovereign command and are more
interested in what the people perceive as right or wrong
The law should be available to the collectivity so as to generate an
attitude or general obedience.
Freidrich
Karl Von
Savigny

(Savingy) Custom is the real produce of a sound law. Law is a

spontaneous emanation from the spirit of the people
Volkgeist (folksoul)- the law constitutes the soul or spirit of the
people that permeates the members of the community in common.
Law in direct relationship with life or national development of the
people
Law as having been created on the principles of right and good
The law is always right
The law could be used by political authority as a means of
achieving goal form promoting social justice and the common good
Law is conceived by human reason

Teleologi
cal View

St.
Thomas
Aquinas

Positivist
s
or
Analytica
l View

Basic Concepts

Jeremy

The law is an ordinace of reason for the common good made by him
who has a care for the community and promulgated (Aquinas)
The yardstick for testing the validity of law should be in
accordance with the rule of right and reason for the common good.
Concerned with the creation of an ideal system of law based upon
ethics and justice.
The public welfare or the common happiness is the first concern of
the people. The law is ordained for the sake of the common good
and happiness
Concerned with the examination and analysis of the legal system,
its process and objectives
All laws should be examined to determine whether in their

Bentham

enforcement they would promote the greatest happiness of the

greatest number of people in society. (Bentham)
Greatest happiness principle- measure of the value of the law
Jurisprudence- used to analyze and censure the law
Usefulness of law is to be measured in terms of their effectiveness,
enforcement and result of their application (Bentham)

John
Austin

Law is a sovereign command from superior to inferior, enforced upon

those people who do not obey. (Austin)
Austin is an advocate of positive law
Somewhere in a political society, legal power must be in some person
or persons who are accustomed to obey. (Bentham in agreement with
Austin)
What is important is the element of power and authority of the law
The nature of the law is that it is objective
Command theory of law-the law is the totality of jural rules and
principles consciously set by men in the state as political superiors, to
men as political subjects and enforced by material sanctions
Essential attributes of law: conscious creation, generality and
authoritative enforcement

Function
al View

Roscoe
Pound

Realist
view

Justice
Oliver
Wendell
Holmes
Jr.

Emphasizes what the law does and how it functions

Gives primary importance of the functions of the judicial system
which is expected to settle the conflicting interests of men
Interprets the law as one possessing policy value essential in
attaining mens maximum wants with a minimum of social conflicts
Law as a result of what the judiciary or an administrative institution
does to balance competing interests in the society that they will be
able to enjoy equality of a legal justice (social engineering)
Law as a living thing
Development of law is interrelated with the social environment in
which it grows
Social phenomena of facts in relation to their actual effects in the
community
The binding force of law is based on social interests
Law should be treated as social mechanism for the engineering and
adjustment of conflicting interests
Law is continuously engaged in the process of reconciling and of
settling conflicting wants, claims and demands
Goal: To secure a maximum number of social interest with
the minimum of friction and waste
Whether or not the law is verifiable in the practical life of
the people
Starting point: All of reality or actual experience
In inquiring what the law is about, one must seek to define law as
the prediction of what legal officials do. (Holmes)
Interested in empirical examination as examination of how law in
fact is operated in specified legal systems.
The life of the law has not been logic, it has bee experienced.
(Holmes)
Legal cases are best understood as the application of rules
(Holmes)
The law is the individuals decision and not a system of general
rules and principles as there can be no certainty in the judges
decisions.

Policy
Science
View

Professor
Harold D.
Laswell
and
Professor
Myrer S.
McDouga
l

Views law in the context of the basis and limits of effective global,
regional and national legal orders in relation to social values.
The law can truly be an instrument of global, national and regional
control when it is committed to the complete achievement of the
social values that constitute the professed ends of democratic
societies.
Law is an advocacy of consistent, compatible and principled
policies, legislation and decisions on the basis of social values.

MarxistLeninist
View

Evegny
V.
Pashuka
nis

The law is a vital instrument for ordering conduct through the

formation, clarification and realization of the social values where
the patterns of authority are conjoined with the patterns of control.
What does the law protect?
Considers a socio-class regulator expressing that the state shall be
raised to the level of law, of the economically dominant class.
The economic organization of society is determined by commodity
exchange and that the law constitutes a superstructure reflecting
the economic organization of society.
In the finally achieved state of communism, law and the state will
whither away.

LAW: CLASSIFICATION AND SOURCES

General Classification
Jural Law
Particular Sense
-law refers to statute i.e. enactments
of the legislative branch of the
government. Statutes consists of its
purpose, specific provisions on specific
situation with incentives as well as
penalties
-could also refer to rules, regulations
and
opinions
of
government
instrumentalities and agencies
Collective Sense
- refers to the bulk of specific or
particular laws relating to one
subject matter or when it relates to
laws obtaining in a given society.
E.g. Penal laws, laws of the Republic of
the Philippines

Nonjural Law
Natural Law
-considered as the ultimate source of every
type of law
-a system of rules prescribed by divine inspiration
to all men not to any formal promulgation but by
an inward impression upon the human heart and
those rules attained by the light of natural reason
and understanding

Divine Law
-rule governing things as it exists in God the ruler
of the universe.
-law of religious faith and concerns itself with the
concept of sin and salvation, of life and death, of
the temporal and the eternal.
Cannon law- the law of the medieval
Roman Catholic Church which remains to
be enforced by the Vatican

Abstract Sense

Moral Law

-when it is mentioned without

reference to a definite article
preceding it or when it is preceded by
the definite article.

-that set of rules which establishes what is

right and wrong as dictated by the human
conscience and as inspired by the Eternal
law.

-defined as the totality of social norms regulating

the human activity growing out of the collective
consciousness or public sense of right and wrong
of the people
-arises from conscience and applies to out higher
faculties
Physical Law
-The universal rule of action governing the
conduct and movement of things which are nonfree and material.
-Laws of physical science
-Maintains that there is uniformity of action or
order of sequence in the course of nature.
E.g. laws of gravitation
Aquinas Classification
1.
2.
3.
4.

Eternal law-Gods plan for the universe

Natural law- part of eternal law in which humans participate by their reason
Divine law- Gods direct revelation to humankind through the scriptures
Human law-particular determinations of certain matters arrived at through the use of
reason from the general precepts of the natural law.

Traditional Classification
Public and Private law- are substantive law as they refer to the substance of rights and
obligations
Public Law
Concerns the government, the rights and
obligations of a citizen vis-a-vis the
government and the relationship among
nations
Constitutional law

Private Law
Concerned with the rights and obligations of
individuals with other persons and entities and
claims that may be pursued in instances of
injury among person, property and reputation
as well as breach of a valid obligation
Tort Law

-the basic charter of a nation that defines

the powers of government and the rights of
its people.
-includes
the
constitution
and
the
interpretations made by the highest court of
the land
Administrative law
-are the issuances and regulations of a
department under the executive branch for
effective implementation of the law
germane to the department
Criminal law

-an obligation that arises due to an action of a

person who causes injury or wrong upon
another
-tort is generally unintentional

-defines offenses that cause harm upon

-covers the rights and obligations of individuals

Property Law
- Deals on ownership and use of real or
personal property
- Governs
disposal,
lease
and
encumbrances of property.
Contract and Business Law

society as well as penalties for commission

International law
-concerned with the relationship among
nations, international trade and disputes
including war and its conduct

or entities that enter into contracts such as

partnership, insurance, negotiable instruments
law and transportation
Contract- considered as law between parties
Corporation law
-provides for the establishment and operation
of companies registered under SEC
-defines the rights and obligations of
stockholders, board of directors and officers
Inheritance Law
-governs the transfer of property upon the
death of the owner
-specifies the rights of successors and
requirements for a valid will
Family Law
-consists of provisions defining the relationship
between spouses, parents and children,
marriage, annulment and legal separation

Sources of Law
Constitution and
Administrative
Rules
Constitution-the basic
charter of the nation
-defines the form of
government, the
functions of the
branches and reflects
the belief of the people
Administrative rules
-issuances of specific
offices of government
for
their
effective
implementation
and
statutes

Legislative
Statutes

Judicial
Precedents

Customary
Practices

Laws are generally

passed
by
an
assembly,
either
Congress
or
Parliament,
whose
members are elected
directly by qualified
citizens

Decisions
of
the
courts on matters
raised
for
adjudication

These are accepted

norms
of
a
community of people
based on customs
and traditions

In certain instances,
the highest court
decides
on
the
constitutionality of a
statute
and
promulgates
final
judgment
on
questions of law

How Laws Are Changed

By Court Decisions

By legislation

-In
common
law
countries, judges may
change the laws by
expanding
or
overruling precedents

Legislature has the

power to amend,
repeal or pass a new
law

Decisions of judges of
the lower court are
subject to the review

By administrative
action
Government
departments issues
rules
and
regulations
which
can be subject to
amendments, repeal
or replacement

By direct action of
the people
The people directly
participates in the
law-making
process
through mechanisms
such as referendum,
plebiscite
and
initiative

by the highest court

- If the interpretation
of a law by the court is
not to the liking of the
government, then the
legislative body may
change the law
HISTORY OF LAW
Prehistoric Times- the earliest laws were customary laws i.e. laws that became established by
custom and were handed down orally from one generation to the next.
Early Laws in the East
4000 BC, Egypt- the appearance of an organized court system marked the beginning of legal
history
- The word of the king was law
- Palaces were the centers of law with judges administering justice
- The Egyptian legal system endured until Egypt was conquered by Rome in the 1 st BC
1850 BC-earliest known legal decision was found in a clay tablet of the murder of a temple
employee by three men.
Code of Hammurabi- the most complete collection of Babylonian law
- Hamurrabi (reigned from 1792-1750 BC) reorganized the administration of justice and
established an order arrangement of written laws.
- Based on earlier collections o f Sumerian and Akkadian regulations
- Consists of 282 provisions on family, labor, personal property, real estate, trade and
business
1000 to 400 BC- Hebrew people of the Middle East assembled their religious and social laws
into a code
- The Law of Moses contained in the Ten Commandments
1280 to 880 BC, India- Laws of Manu
- The laws were written in compilation of known legal rules passed from generation to
generation
- Formed the basis of the caste system
500 BC- China developed its own laws based on the teachings of Confucius
Ancient Greece
621 BC- Draco drew up Athenss first law code. It provided for harsh punishments.
590 BC-Council of Athens appointed Solon to reform the code to make it more humane.
- Solon initiated changes in the lawmaking body through assemblies composed of elected
representatives (basis of the democratic form of government)
Ancient Roman Law
Early Roman Times
450 BC- Laws of the Twelve Tables
- First Roman law code to set down the chief customary laws of the Romans
376 BC- Praetors were designated to make amendments to the law through edicts
27 BC-Roman emperor could make changes in the law

Juris prudentes were tasked to interpret the laws

Two applied set of laws: jus civile governed the Roman citizens and jus gentium applied
to peoples conquered by the empire

Late Roman Times

212 AD- Jus civile became the law of the entire empire including the conquered peoples who
became citizens except slaves
533 AD- Emperor Justinian I organized all laws of the empire into the Justinian Code or Corpus
Juris Civilis
The Middle Ages
Eastern Byzantine Roman Empire enforced the Justinian Code
Canon laws were written by monks and clergy
800 AD- feudalism was adopted giving powers to individual lords or kings without control
from the central government
1100 AD-University of Bologna trained law students on Roman law applying its principles to
Germanic and feudal customs
1300s- faculties of law developed further the legal systems in Western Europe
1200s- England adopted a legal system (common law system)
- This system is based on the doctrine of stare decisis
1100s- English kings established a nationwide system of royal courts and a separate system
of equity (based on the principles of moral justice)
The First Modern Law Codes and Other Developments
1500s- royal absolutism and growing nationalism saw the rise of strong central governments.
- The foundation of the legal systems which is referred to as codification movement came
about.
French Revolution of 1789- the rise of Napoleon Bonaparte to power.
1804- the Code Civil or the Code Napoleon was adopted which blended the principles of
Roman law, French customs and democratic principles.
- Code Civil became the model for other national codes of the conquered nations
Colonies under the British empire adopted the common law system (Australia, Canada,
India, Malaysia and New Zealand)
Legal systems of the Philippines, Mexico and South American nations are influenced by the
civil law system