Reviewer for Philosophy of Law

Midterms

*Everything has its own purpose – to act in accordance 5. Argument from Design – God as an ultimate
with its nature being w/c is the end and purpose (telos)

CLASSICAL What law really “ought to be”?

St. Augustine’s (354 A.D.)
- “Ought to be” may mean that law has a standard
Augustine’s philosophy is the belief that only - can find justification outside of legal system
through faith can wisdom be attained; philosophy and
religion is a quest for the same thing, truth, but with the POSITIVIST
former inferior with the latter
1. Empiricism – all knowledge comes from or
Human Law originates in experience
A law or any legal system is justified when it 2. Rationalism – reason is in itself a source of
conforms to a higher system, something divine in nature knowledge
(Reason for appearance of Classical View) 3. Idealism – only the perceptible is real
4. Utilitarianism – aim of action should be the
St. Anselm largest possible balance of pleasure over pain
5. Essentialism – ultimate reality to essence
- Father of scholastic tradition embodied in a thing perceptible to the senses
6. Existentialism
Scholasticism – method w/c employs critical thought in 7. Pragmatism
articulating and defending “dogma” 8. Humanism

Existence of “God”, explained: consider the term Positivist View of Law: rule of conduct, backed by
“God”, we mean something that is nothing is greater can sanctions, to its people for habitual obedience
be thought of
“A God that does not exist is no greater than the - Cannot find justification outside the legal
God that exist.” (Tautological argument) system

St. Thomas Aquinas (1225-1274) 3 Characteristics of Law (Greeks)

1. Nomos – human law
Books: 2. Taxis – arrangement/order
a. Summa Contra Gentiles – deals w/ 3. Physis – laws of nature
philosophical argument on the truth of the
Christian tradition: existence of God, purpose of Classical Positivist
human life, existence of soul, ethics etc. a. Derived from the a. Constitution
b. Summa Theologica – 3 parts: (1) God, creation Divine/Supreme
and human nature, (2) morality, and (3) Christ Being/Divine Law b. Statute
and the sacraments
b. Human law is valid if it c. Justification must
Classical View of Law: Law is an ordinance of reason, conforms to human be w/in the
promulgated by competent authority, for the sake of nature (freedom, system itself
common good rational, goodness)
d. Mala prohibita –
5 Ways to Prove the Existence of God c. Ethics or morality (right do not manifest
from wrong) the human nature
1. Argument from Motion – nothing is permanent of free will
in this world but change (borrowed from d. Telos – purpose of because good
Heraclitus); God as the ultimate mover man is to go back to its faith is not a
2. Argument from Efficient Cause – God as the creator (“God”) defense
efficient cause of everything that exists
3. Argument from Possibility and Necessity – God John Austin
as the one giving “existence”
4. Argument from Gradation of Being – God as the *Law is simply “is” / free floating
source of people’s being and every other *No standard
perfection *No issue on morality or right from wrong

Jae 
 Reviewer for Philosophy of Law
Midterms

Jeremy Bentham “There are hard cases that cannot be addressed.” This
hard cases are the dilemma w/c arises upon the
- Insists that what is good for man is the application of law.
attainment of pleasure & the absence of pain
- What one desire is what always makes one Joseph Raz
happy
- Measure is to promote greatest good for more - Israelian Philosopher
number of people
- Test of contents & basis of law is based on
John Stewart Mill social facts not moral arguments

- Utilitarianism “law is dynamic”/ ”protection of laws” - to remove

- Happiness is what is good for man any inconsistency in the law

Emmanuel Kant “concept of perfection of law” – to revoke/remove all

the inconsistencies
Categorical Imperative – act according to that maxim
by w/c you can, at the same time, will, that it should **There are no hard cases, dilemma arises because of
become a universal law second justification w/c undermines the authority,
- GOLDEN RULE: Do not do unto others what instead of just following the law
you do not want them to do unto you
2 Jurisdiction
- Duty to act 1. First: It is in and the law itself (language of the
- Universal, moral law discovered by reason law)
2. Second: External reasoning or extrinsic aids
Hans Kelsen

“Law, while free floating, it is nevertheless based on a LAW VS. MORALITY

basic norm” H.L.A Hart vs. Lon Fuller

H.L.A. Hart Morality - conformity to ideals of right human conduct

- - Rooted in the nature of man that is capable of
“Concept of Law” knowing what is right from wrong
- Rational because he knows what he is doing
Rule of Recognition: When one recognizes & accepts
the law then we acknowledge that all the criteria of law H.L.A Hart
are present. - expounded the Austinian meaning of the law
In his book Concept of Law, Hart said that law
“When no one obeys the law, then no one recognizes it” is a concept not the application because application is a
different matter.
2 Category of Law
1. Primary Rules – as defined by Austin that law is Lon Fuller
a definitive rule of conduct, promulgated by a - “The Morality of Law”
competent authority, backed by sanctions to its - Law must serve a purpose (opposing Hart’s)
people for habitual obedience - Purpose of Law: “To achieve social order by
2. Secondary Rule: should not counter the primary subjecting conduct to moral rules.”
rules; mere expression of primary - “Failure of the law to comply with moral
principles makes it invalid.”
Dworkin
Grudge Informer Case – encouraging any person or
*Legislation is positivistic entity to help the government in protecting its nation and
*Question of whether or not it is moral, is akin to the to tell the government if anyone cusses on Hitler
application of the law (Germany at the Nazi Era, after WW2)
- Act of the woman in the case is contrary to the
sound conscience and sense of justice of all
decent human beings

Jae 
 Reviewer for Philosophy of Law
Midterms

2 Aspect of Morality

1. Internal - conscience
2. External – moral suggestions

3 Criticisms of Fuller

(Hart said that law is the mere existence not the

application.)

1. When you interpret the law, one should go

outside of the letter of the law in order to know
the meaning, by doing so one is acknowledging
some principle not written in the law.
2. The problem of the penumbra. How one can
interpret the law when the meaning seems
obsolete or inadequate or vague or unclear.
Judges do not interpret only on what the law is,
instead it interprets based on the context or
spirit behind that law.
3. If one follows the Austinian definition of law,
then how one can say that those laws which do
not provide sanctions and are not obeyed by
people is not law.

8 Principles of Law According to the Naturalist

1. Law must be existent not ad hoc

2. Law must be promulgated (publicize)
3. Law must be prospective rather than
retrospective
4. Law shall be clearly stated & comprehensive
5. Law must be consistent w/ each other
6. Law must be possible to be obeyed
7. Law must be constant or relatively long lasting
8. Law must be applied & administered as a state

Absolute minimum content – acknowledgement of a

rule of reason to give justice in the administration of the
law (first criticism)

Jae 