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 of law is the philosophy of a

philosophy. 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.

a. Natural Law Theory

All forms of natural law theory subscribe to the Overlap Thesis, which is that there is a necessary relation
between the concepts of law and morality. According to this view, then, the concept of law cannot be fully
articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous,
there are a number of different ways in which it can be interpreted.
The strongest form of the Overlap Thesis underlies the classical naturalism of St. Thomas Aquinas and
William Blackstone. As Blackstone describes the thesis:
This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in
obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are
of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority,
mediately or immediately, from this original (1979, p. 41).
In this passage, Blackstone articulates the two claims that constitute the theoretical core of classical
naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws
derive what force and authority they have from the natural law. On this view, to paraphrase Augustine, an
unjust law is no law at all.

Related to Blackstone's classical naturalism is the neo-naturalism of John Finnis (1980). Finnis believes
that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the
existence conditions for law. According to Finnis (see also Bix, 1996), the classical naturalists were not
concerned with giving a conceptual account of legal validity; rather they were concerned with explaining
the moral force of law: "the principles of natural law explain the obligatory force (in the fullest sense of
"obligation") of positive laws, even when those laws cannot be deduced from those principles" (Finnis 1980,
pp. 23-24). On Finnis's view of the Overlap Thesis, the essential function of law is to provide a justification
for state coercion. Accordingly, an unjust law can be legally valid, but cannot provide an adequate
justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an
unjust law fails to realize the moral ideals implicit in the concept of law. An unjust law, on this view, is legally
binding, but is not fully law.

Lon Fuller (1964) rejects the idea that there are necessary moral constraints on the content of law. On
Fuller's view, law is necessarily subject to a procedural morality consisting of eight principles:
P1: the rules must be expressed in general terms;
P2: the rules must be publicly promulgated;
P3: the rules must be prospective in effect;
P4: the rules must be expressed in understandable terms;
P5: the rules must be consistent with one another;
P6: the rules must not require conduct beyond the powers of the affected parties;
P7: the rules must not be changed so frequently that the subject cannot rely on them; and
P8: the rules must be administered in a manner consistent with their wording.
On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can achieve
law's essential purpose of achieving social order through the use of rules that guide behavior. A system of
rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior because people will not be able
to determine what the rules require. Accordingly, Fuller concludes that his eight principles are "internal" to
law in the sense that they are built into the existence conditions for law: "A total failure in any one of these
eight directions does not simply result in a bad system of law; it results in something that is not properly
called a legal system at all" (1964, p. 39).

b. Legal Positivism
Opposed to all forms of naturalism is legal positivism, which is roughly constituted by three theoretical
commitments: (i) the Social Fact Thesis, (ii) the Conventionality Thesis, and (iii) the Separability Thesis.
The Social Fact Thesis (which is also known as the Pedigree Thesis) asserts that it is a necessary truth
that legal validity is ultimately a function of certain kinds of social facts. The Conventionality
Thesis emphasizes law's conventional nature, claiming that the social facts giving rise to legal validity are
authoritative in virtue of some kind of social convention. The Separability Thesis, at the most general level,
simply denies naturalism's Overlap Thesis; according to the Separability Thesis, there is no conceptual
overlap between the notions of law and morality.

Positivism is from the Latin root positus, which means to posit, postulate, or firmly affix the existence of
something. Legal positivism is a school of jurisprudence whose advocates believe that the only legitimate
sources of law are those written rules, regulations, and principles that have been expressly enacted,
adopted, or recognized by a governmental entity or political institution, including administrative, executive,
legislative, and judicial bodies. The basic question to be asked when talking about this theory is “What is
law?” Is it written? Where does it come from? Legal positivism is a theory which answers these questions.

Legal positivism is the legal philosophy which argues that any and all laws are nothing more and nothing
less than simply the expression of the will of whatever authority created them. Thus, no laws can be
regarded as expressions of higher morality or higher principles to which people can appeal when they
disagree with the laws. It is a view that law is a social construction. The creation of laws is simply an
exercise in brute force and an expression of power, not an attempt to realize any loftier moral or social
goals. Therefore, from a positivist perspective, it can be said that “legal rules or laws are valid not
because they are rooted in moral or natural law, but because they are enacted by legitimate authority and
are accepted by the society as such”.