6.

Force
First meeting: March 24, 2020
• The motives it relies on for enabling it to produce the effect it
CHAPTER 2 aims at, and the laws or other means which it relies on for
The Command Theory of Law – by Jeremy Bentham bringing those motives into play: such laws may be styled its
corroborative appendages
The law has seven (7) requisites: • These are the other sources why a certain law is passed.
1. Source • When a law is passed, it is not passed as an isolated law; it
• The person whose will is the expression always in relation to other laws. In other words, every positive
• The person who gives the law law has a connection with other laws.

2. Quality of subjects 7. Expression
• The persons and things to which the law may apply • The nature of the signs by which the will whereof it is the
expression may be made known
3. Objects • The actual text of the law
• The acts, as characterized by the circumstances, to which the • Remedial appendages - certain other laws which may
law may apply occasionally come to be subjoined to the principal law in
question; and of which the design is to obviate the mischief that
4. Extent stands connected with any individual act of the number of those
• The generality of the amplitude of its application: that is in which are made offences by it, in a more perfect manner than
respect to the determinateness of the person whose conduct it can be done by the sole efficacy of the subsidiary appendages to
may seek to regulate which it stands indebted for its force
• In other words, the extent is what you call as the general • Law is not only substantive; it also has a remedial aspect. That
principle. is why the Constitution is not self-executory. You need to have a
• A law cannot be a law if it applies universally. A positive law positive law in order to make that happen.
cannot apply universally. Every positive must be applied within
a certain limit or bound. Greatest Happiness Principle

5. Aspects • provides that the greatest happiness is for the greatest number
• The various manners in which the will whereof it is the of people.
expression may apply itself to the acts and circumstances which • According to Bentham, man is governed by two masters,
are its objects namely: pressure and pain. They are called masters because
• Example: JJWA they govern man. Man is but a subject of pleasure and pain.
Source: Congress • In fact, the principal criterion for making a law is no other than
Quality: Filipino citizens; minors to produce the greatest happiness for the greatest number of
Object: crimes committed by minors people.
Extent: within PH territory
Aspects: will expressed; spirit of the law; ratio


Criteria used to measure the greatest happiness for the greatest John Austin’s Legal Theory
number of people:
Austin maintained that legal theory or “general or universal
1. Intensity – concerned with the degree of strength of the pleasure or jurisprudence” is “the science concerned with the exposition of the
pain principles, notions, and distinctions which are common to systems of
2. Duration – concerned with the length of time it is experienced law: understanding by systems of law, the ampler and mature systems
which, by reason of their amplitude and maturity, are pre-eminently
Example: Penal laws for bigamy and adultery
pregnant with instruction.”
X is already married to Y. Masarap naman ma-inlove eh. Pano kaya
kung mag-engage ulit ako sa relationship kahit di ko asawa. Meron Law – the rule laid down for the guidance of an intelligent being by an
naman greatest number of people. Everyone will do it. Therefore, intelligent being having power over his subjects.
pasado sya kay Bentham. Tama ba yun? Would Jeremy Bentham Elements of Law:
agree? Of course not! Bentham will say that the intensity and the 1. Rule laid down for guidance
duration of pleasure will tell you otherwise. Hindi sya sulit. 2. Of an intelligent being
Panandaliang aliw lang sya. So di pa din sya papasa. 3. The intelligent being must have power over his subjects
3. Certainty – concerned with how surely it can be brought about
Law is an ordinance of reason. Its source must be an intelligent being.
4. Proximity – concerned with the nearness in time it is to be
experienced Distinction between natural law and positive law
5. Purity – concerned with the chance it has of not being followed by Natural law – the laws set by God to man is frequently styled the law of
sensations of the opposite kind: that is pains, if it be a pleasure: nature
pleasures, if it be a pain
6. Extent – concerned with the number of persons to whom it extends; Positive law – the source of law is men; set of established rules political
or (in other words) who are affected by it superiors, sovereign and subject

Distinction between Censorial Jurisprudence and Expository Distinction between positive law and positive morality
Jurisprudence Positive law – given or enacted by the sovereign
Censorial Jurisprudence – the science of legislation, which the legislator Sovereign – an independent political entity
engages in criticizing the law so as to formulate better ones. Its concern
is not with what law is but with what it ought to be, and the legislator Notice that the definition of “sovereign” is generic. As long as there is an
independent political entity, it is sovereign.
aims to make the law as it ought to be.
There are also specific laws describing the nature and the relation of the
Expository Jurisprudence – belongs to the province of the judge. He is
sovereign and the subject. Law is basically a relation of the sovereign and
merely to apply the law as it is, and not as it ought to be.
the subjects.
Example: When you criticize a law and say that it should not be a law
Positive morality – human conducts or ethical conducts that do not need
because this must be the law, you are engaged in censorial jurisprudence.
any legislation by the sovereign. Why? Because your conduct is governed
But when you are the judge, you don’t care which law is wrong or correct.
by a set of ethical rules. You don’t need to enact any law in order for your
You simply apply the law as it is or not as it ought to be. This is expository
actions to be governed.
jurisprudence.

Example: Kailangan ba sabihin na dapat lagi kang punctual? Kailangan the command theory of law, there is no necessary connection between
ba mag-enact ang congress ng law para sabihin na kailangan magbigay law and morality. In fact, law and morality are two distinct entities.
ka sa mga nangangailangan? You don’t need any special law for that. Kailangan ba pag-usapan kung ang death penalty, euthanasia, or
In civil law, what is an enforceable obligation? Is a moral obligation an abortion ay moral or immoral? No. Austin doesn’t care. Under positive
enforceable obligation? The answer is no because moral obligation is law theory, it is clear that law is enacted by man, and morality is
under positive morality. something that is given by a supernatural being or by God.
According to Austin, law, in every country or in every context, is an Valid law = if 3 essential elements are present
interplay of positive law and positive morality. The society must be able St. Thomas Aquinas would insist that it is not valid because law has a
to understand law in its positive law sense and in its positive morality supernatural dimension, which is positive law should be consistent to
sense. the divine law. Natural moral law is the bridge between civil law and
Example: Quarantine pass divine law, so there’s always a connection between law and morality. But
LGU: Do not go out without a quarantine pass – example of positive law under command theory of law, there is no bridge or connection.

Mayor of Marikina: We don’t need to have a quarantine pass because in Comments and Criticisms:
this time of crisis, we treat the people of Marikina not as subjects but as 1. It relies on a misleading model of law.
partners in combating the virus. You don’t need to have a quarantine • Austin’s approach seems to be very “simplistic”
pass just for you to realize that going out of your homes will endanger • Gunman example:
yourself and other people – example of positive morality o A person with a gun pokes a gun to another person.
Concept of the sovereign o Supposing there is a bank. Hinoldap yung bangko, may
dalang baril at tinukutukan ng baril ang teller.
1. An independent political entity (siya ang source ng batas) o If you look at this example, it will satisfy all three
2. Something that is not in a habit of obedience or something that elements of law by Austin.
does not exhibit or show habitual obedience (siya ang § First, there is a desire or will by the sovereign
sinusunod) – for the person to get cash from the bank
3 elements of law under the command theory of law: § Second, there is a threat of punishment to the
subject (teller) if the subject/teller will not
1. There has to be a wish or desire conceived by a rational being follow the desire of the sovereign – the teller
over the subjects will die if he/she does not give the money
2. There has to be an evil to be incurred by the subject, in case the § Third, there is an expression (declaration of
subject not will not comply to the wish of the sovereign holdup). There is a sovereign-subject
3. There has to be an expression or intimation of the wish by words relationship.
or other signs o Now, given that example and given that all elements of
Austin deems it essential to include punishment as an element of the Austin were fulfilled, is that law? Is that still the
command theory of law because without punishment, it cannot be a definition of law?
command. o Kung ganun lang ang definition ng law, parang
nawawala yung concept ng justice.
In natural law theory, there is a necessary connection between law and

morality. Since the law is designed by God, normally, the civil law or

positive law must mirror that law which is ordained by God. But under
2. It confuses the nature of an obligation with law. • There are certain laws that do not have the element of
• Not all obligations can be classified as law. So if the gunman tries punishment or threat.
to poke his gun over the forehead of the teller, the teller may • Examples: wills and successions; property
have a natural obligation, in order to save his or her life, to the • Austin’s definition is incomplete because:
give the money to the gunman. o It has a very strict definition of law;
• But it does not mean that it is law. In other words, all laws are o There are laws which qualify as laws but do not have
obligations, but not all obligations are laws. the element of threat or punishment.
• In the gunman case, what is your source of law there? Yung
criminal? Someone who is acting not in accordance with law 5. Laws should be expressed
may be a source of law, which many legal philosophers find • All laws have to be made known to the public.
absurd. Hindi pwede maging source ka ng isang valid law kung
ang source mismo ay gumagawa ng illegal or invalid act. 6. Limits in the requirement of generality
• Austin made the mistake of requiring that laws be general only
3. Austin deduces law simply as a wish of the sovereign. over acts, and not over persons.
• Naging wish or desire na lang sya, which is very prone to abuse, • This is a mistake. Laws generalize both over persons and over
which can be capricious and whimsical. Siya na lang yung acts.
nasusunod; kung ano yung wish or desire nya, yun na lang. • Ang focus kay Austin yung desire or act. Ano ba talaga yung
• Any desire or intent of the law given over his subjects, coupled gusto mo? Yung gusto lang ng sovereign. Pero kulang yun kasi
with threat of punishment, and expressed or made known is nawawala yung element ng subject. Hindi lang ikaw lagi yung
already law according to Austin. nasusunod. Unless dictator ka.
• But this is too much because law should be more than a wish or
desire of the sovereign. Law must not be capricious and 7. Sovereign
whimsical. t • Law must be made by the sovereign.
• That is why if somebody acts capriciously or whimsically, there • Problem: It presupposes that there is no change in the
is a check and balance mechanism in remedial law that provides sovereign.
a solution to anyone who acts capriciously or whimsically. What • But what if the sovereign is changed? Does it mean that the law
is that mechanism? – Petition for certiorari under Rule 65. also ceases to exist?
• Meron bang ganito kay Austin? Wala. Kay Austin, ang tanong
lang, sino yung makapangyarihan at ano ang gusto mo? May A. The Continuity of Law
subject ka ba? May threat or punishment ka ba? Inexpress mo o If law is the desire or will of the sovereign, then the
ba? Kung oo, law na yan. But in Philippine jurisprudence, that is existence of the law is based on the existence of the
not the case. Many laws were struck down because they were sovereign. The law cannot exist without the existence
exercised capriciously and whimsically or because they did not of the sovereign. Therefore, if you remove the
pass the stringent test. sovereign, there is no law.
o The question now is this: If the sovereign is absent or
4. Evil or Sanction removed, does it mean that there is no law?
• In order for it to be a law, punishment or threat is not an o This seems to be unacceptable because obviously
essential element. meron pa din dapat na masunod. It could be moral laws,
 pero law pa rin yun. Kay Austin, walang moral laws to o In the Philippine legal system, as indeed in many other
speak of. systems, there is such a doctrine as separation of
powers. Power is divided between the executive, the
B. The Persistence of the Law legislative and the judicial branches of government. No
o Do laws become obsolete when they are no longer branch is so superior to the others that it has absolute
observed, or there’s a change in the sovereign? Or do power over them, as Austin’s theory requires.
they remain valid until they are repealed or annulled?
o Under Austin’s theory, they are invalidated upon the E. The Location of the Sovereign
death of the sovereign. Until a new sovereign has been o For Austin, there seems to be a very simplistic way of
recognized who confers validity upon the old law by looking at the sovereign. Sino ba yung nagsasabi ng
either re-enacting it or applying it, this old law is no gusto nya? Kung sino yun, siya yung sovereign.
longer law. o In actuality, there exists extreme difficulty in locating
o Austin’s theory, in other words, cannot account for this the sovereign.
phenomenon: that laws continue to be valid despite the o In other words, Austin tries to give us a very simplistic
death of the sovereign. model where to locate the sovereign.
o In fact, sovereignty and power is distributed, and it is
C. The Limit of the Sovereign’s Power difficult to locate the sovereign or sovereignty. Because
o Under Austin’ theory, the sovereign’s power is absolute, if power is shared among the three branches of
and all legal authority emanates from him. He is government, then obviously sovereignty also resides in
inferior to no one and superior to everyone else. those three.
Consequently, his powers are unlimited in that only he o Austin experienced problems in locating the sovereign
can delimit it. in the United States.
o In actuality, there exist legal limitations on the
sovereign’s power in society. Every sovereign is CHAPTER 3
governed by factors other his own desire or will.
Hans Kelsen
o Example: The people or even the President is governed
by the Constitution. The legislative is restricted by the • Criticized John Austin
powers of the executive and the judiciary. • Positivist
o In other words, there’s no such thing as absolute • Introduced changes in Austin’s theory of law
power/sovereign. • According to Kelsen, Austin’s theory of law is impossible to
contextualize or to attain in reality.
D. The Separability of the Sovereign’s Power • The study of law must be pure, not in describing the source or
o The way Austin portrayed the power of the sovereign is the threat, but knowing how it ought to be applied.
– it is always unitary. • In other words, the focus of Kelsen is the application of the law.
o He portrays the power from the sovereign in a very (on the “how”)
isolated manner in such a way that it cannot be shared, • Austin – engaged in a descriptive process of the law; Kelsen –
and it only resides within the sovereign. engaged in a prescriptive process
o In reality, the sovereign’s power is separate. In fact, it is
shared.
 • The reason why Austin fell into the trap of idealism and his Law is something that is pragmatic. If it works because it is able to
theory cannot be applied in actual context is because his study regulate people’s behavior, then it is a valid law.
of law is descriptive.
• “Prescriptive” – study of law on its application
• The purpose of the study of law for Kelsen is to know the subject
and how the law should be applied by from the sovereign to the
subjects – “politics”
• You need to study politics. There are dynamics in government
and in law that you need to understand in order for you to study
the law.
• Can you be a good lawyer by simply reading books or
memorizing legal provisions? No, you will not learn that way
even if you pass the bar. You must know how the law works.
Methodology of Kelsen
• Consisted in comparing all phenomena which go under the
name law and searching for common characteristics of these
phenomena so as to arrive at an adequate definition of law.
• Inverted Pyramid Structure – know the different laws first and
out of that laws extract definitions, elements, or characteristics
common to all laws in order for you to arrive at the pure theory
of law.
• Extract all common elements to come up with the essential
requisites to define what law is
Pure theory of law is a science and cannot question moral concerns or
issues because science cannot answer questions of morality.
1) Law has an element of coercion.
• The law operates based on coercion/threats.
• The reason why people follow the law is because they are scared
of punishments (not out of good will)
Law and justice are two different concepts – a legal philosopher must
only concern himself with law.
When you study law, stop asking yourself what justice is or what
constitutes a just society or what is moral or just because these are all
bewitchments of language. He agrees with Wittgenstein by saying, don’t
think, but look for multiple relationships or similarities or multifarious
relationships between laws.
Second meeting: March 31, 2020 • The Pure Theory of Law restricts itself to a structural analysis of
Hans Kelsen positive law based on a comparative study of the social orders
which actually existed in history under the name law.
• proponent of the pure theory of law • Kelsen studied history the legal system in different countries
• Kelsen wanted to eliminate from law alien concepts or elements and described the source of law regardless if the law is moral or
such as morality or the social sciences. He wanted the law to be not.
pure.
The Sociology or History of Law vs. The Pure Theory of Law
• Wittgenstein wanted to have a language that is verifiable,
falsifiable, or that has correspondence to a particular fact. The • Sociology of law or history of law deals with the different
use of language has to be purely factual. complexities of the law.
• Kelsen shared that view of Wittgenstein by saying that by the • Sociology and history are social sciences that deal with various
study of the theory of law should also be pure, and certain factors governing human conducts.
elements must be eliminated from it – the element of morality • Morality is in the study of the sociology or history of law.
and social sciences. (Notice that this is in direct contradiction to • The approach one should take in the study of law is based only
the natural school of thought of St. Thomas Aquinas where law on the pure theory of law.
and morality have connection) • The Pure Theory of Law says that law is a valid set of norms
Methodology of Hans Kelsen created by acts of human beings.
• There is no necessary connection between “law and God” and
• He attempts to answer what and how the law is and not how the “law and morality” because everything is created by human
law ought to be. In other words, he is engaged in a descriptive beings.
study of the law; he only wants to describe it and how it • It is even wrong to combine the study of justice in the study of
operates. law because the study of justice is a dirt or an impurity in the
• He eliminated morality because once you deal with morality, theory of law.
you are asking how or what the law should be. • The study of justice should be separated from the study of law
• The law can only become pure if you are engaged in the because if you are going to study justice, you are going to ask
descriptive study of law. yourself prescriptive questions (what is the ethical thing to do?).
Definition of a Pure Theory of Law If you combine justice with the study of law, you begin to think
that there is such thing as a prescriptive studying of the law.
• According to Kelsen, the problem with legal philosophers is this: Therefore, it makes the study of the law impure, and in order to
they do not agree with one another, and they do not who among keep that purity of the law, you need to eliminate the study of
them has the better view because they are fooled to believe that justice and morality.
there is such a thing as how the law should be. Once the legal
• There’s no need to ask, “what is justice” like Plato did or “what
philosopher engages in how the law should be, questions what
is moral?” like Aquinas did. What you need to do is to simply
the law should be, or engages in a descriptive school of look at the source of the law, which is a creation of human
reasoning, eventually that philosophy will fall because in every beings, then describe it.
context, each culture has its own prescription/norm how to
address the law.


The Connection of Justice to the Study of Law • Coercion is the ability of the law to compel a certain person to
• Kelsen attempts to separate justice from the study of law act in a certain way.
because it is an impurity. If you study justice, you are beginning • Law assumes that coercion is an essential element of law; it does
to ask yourself of prescriptive questions. so because a careful examination of the social orders termed
• To study justice based on a descriptive manner, point to a “law” in the history of mankind shows that these social orders,
particular fact. “Justice is applying the law that humans created in spite of their great differences, culture, context, and history,
based on the facts of the case.” present one common element, an element of great importance
in social life: they all prescribe coercive acts as sanctions.
• Justice has been defined in a very positivist way in a sense that
• It’s like a banana. If you peel the skin of the banana, you
justice is now verifiable, falsifiable and corresponds to a
particular fact. eliminate history, the source, the context, and the person giving
o Is it an application of the law? the order. The only thing that remains is coercion.
o Is that particular law created by acts of human beings? • Question: If there is coercion, does it mean that law is correct?
o Is the judgment or application of the law based on facts Kelsen said that it is not important to ask this question because
governing the case? legal philosophy should not be concerned with the prescriptive
§ If yes, then justice is served. way of analyzing things but only the descriptive one.
• Kelsen agreed with the Philosophical Investigation of
Kelsen’s methodology consisted in comparing all phenomena which go Wittgenstein. He said that law and justice are two different
under the name law and searching for a common characteristic among concepts. Wittgenstein believed that there are no such things as
all these phenomena so as to arrive at an adequate definition of law, essences but only family resemblances.
which captures it in its essence and distinguishes it from other similar
phenomena. Legal Norm

According to Kelsen, “A theory of law must begin by defining its object • According to Kelsen, the study of law should be descriptive.
matter. To arrive at a definition of law, it is convenient to start from the o Prescriptive – what the law should be
usage of language, that is, to determine the meaning of the word law o Descriptive – what the law is
diritto. Our task will be to examine whether the social phenomena • Even though Kelsen was simply describing the law, why does
described by these words have common characteristics by which they the law appear to be prescriptive? (This is what legal norm
may be distinguished from similar phenomena, and whether these means)
characteristics are significant enough to serve as elements for a concept • A legal norm is a rule whose meaning is that something ought to
of social-scientific cognition.” be done. (Tagilid daw is Kelsen dito)
• Critics of Kelsen said that although Kelsen wanted to be a purist
In other words, the “object matter” refers to the verifiable things such as: in the study of law by eliminating the element of being
(1) Source of law (Congress, individual, etc.) and (2) Mode of law
prescriptive, it seems unclear because the law itself (the way it
(Constitution, Command, etc.)
is written) is very prescriptive. You cannot really separate the
Legal Orders element of the law being descriptive and being prescriptive.
• Once you hypothesize that the common element of all legal
• Kelsen noticed that the different social orders in different times
systems is the coercive power of the law, isn’t it that coercion
have a certain pattern or legal orders.
already makes the law prescriptive?
• There is a common element in all legal orders – the element of
coercion – regardless of the type of the government, source of • The mere fact that Kelsen told us that the common element of
law, etc. all legal system is coercion, it cannot be descriptive because
 there is a coercive element. Once you include a coercive element legal norm lose its validity if it is only exceptionally not effective
in a law, it always becomes prescriptive. in single cases.
• It is impossible to take the approach of studying the law using o “In single cases” – it is only an exception
Kelsen’s purist approach. • There is an important relation between validity and efficacy.
• Kelsen was guilty of the same mistake as Austin in claiming that While an individual legal norm may be valid and not efficacious,
all norms are coercive. (gunman theory) it is considered to be valid only on the condition that it belongs
to a system of norms, to an order which, on the whole is
Validity and Efficacy
efficacious.
• According to Kelsen, there is a difference between validity and • Take, for example, President Estrada, who was deposed by
efficacy of law. (Memorize this!) means of the second people power revolution. Despite that, he
• The validity of law means that the legal norms are binding; the may still maintain that he is legally the President and he is
efficacy or effectiveness of law means that men actually behave correct from a strictly legal perspective. His ouster was done
in accordance with the legal norms. extra-legally or extra-constitutionally. However, were he to
• Validity refers to legal norms that are binding. We do things issue some Presidential Decrees, they would have no force and
because we follow legal norms. We accept that a particular effect. This is because the legal system which he governs or
behavior is valid. heads and claims to be valid is no longer efficacious. The people
o Example: Bawal pumatay have acquiesced into recognizing Gloria Macapagal-Arroyo as
• Validity is different from efficacy. the valid President who replaced him. The legal system under
• Efficacy is fact that the norm is actually applied or obeyed. President Arroyo now efficacious, it is only her government or
• Example: administration which can validly issue Presidential Decrees.
o Norm – bawal pumatay • Example: Imagine that the People Power Revolution was not
o Efficacy – tingnan ang batas kung nasusunod o hindi. successful. What will happen to those who oppose President
Effective ba ang batas na bawal pumatay? Marcos? Of course, they will be prosecuted by the same
• Efficacy is a fact, but a legal norm is not a fact. You will know that Constitution that they were trying to violate. People Power was
a norm is binding because of the facts that you see in the real not one of the modes to remove the Chief Executive. What
world. happened during People Power? The people who ousted Marcos
• May a law be valid but not effective? We all know that stealing is cannot be prosecuted anymore. Why? Because they have
prohibited. But why are Filipinos corrupt? This means that the already rendered the 1973 Constitution invalid. It’s not
Anti-Graft and Corrupt Practices Act is not effective. Yung ang efficacious anymore.
efficacy. Validity goes to the heart of the law, while efficacy is the • What if the 1973 Constitution was not eliminated? Would you
fact whether the law is being followed or obeyed by the people. still have a President Cory or a President Ramos? No. Even if
• According to Kelsen, the law may be valid despite the law being there is a question on the efficacy, the 1973 Constitution is still
inefficacious. Hindi porket lahat nagnanakaw eh hindi na valid. It is still the legal norm.
binding yung law na bawal magnakaw. • Efficacy is a sine qua non of validity. Therefore, all laws must be
• A legal order does not lose its validity when a single legal norm efficacious for it to be valid, but not all laws are valid.
loses its effectiveness. (Remember this!) • What does “not all laws are valid” mean? Go back to the concept
• A legal order is regarded as valid, if its norms are by and large of language games. Are European laws binding to Filipinos? No,
effective (that is, actually applied and obeyed). Nor does a single because laws are territorial in nature. Laws have a jurisdictional
element. It depends on the context that one belongs to.
 • Are all laws efficacious? Yes. change because of the culture and history of each nation, and
• All laws are efficacious because people in that state are Kelsen would call that as the dynamic legal order.
following the law, but because of culture and context, not all • Example: Saudi Arabia and PH
laws are valid to all people. Laws are valid only to the people o Dynamic legal order: Death penalty is legal in Saudi but
governed by the law but not as to other citizens outside of the not in the PH
jurisdiction of the country promulgating the law. o Static legal order: life is precious
The Static and Dynamic Legal Orders The Basic Norm
• Legal orders (in every country) are composed of static and • The legal theory in the Philippines is obviously a dynamic one.
dynamic orders. • In a dynamic system of norms, the reason for the validity of a
• Static type – those that are universal in nature; wherever you go, norm is a higher norm.
laws have certain similarities. • For every dynamic system of norms, it has its own sprit of the
• Wittgenstein’s family resemblances – Although you have law (ratio decidendi) which is the source of the validity of the
different language games, you can still communicate because law.
you have shared experiences in the middle (Venn Diagram). • Every norm is derived from another norm.
• According to Kelsen, those overlaps are called static legal • Pyramid of norms: The top/apex of the pyramid is the
orders. In any country you go, there are same laws that you can Constitution; all of the dynamic norms should not run contrary
find. to the Constitution.
• Example: “Do not kill.” Even if you are in the PH or abroad, killing • Disini vs. Disini – The SC said that there were some provisions of
is like a family resemblance. In all legal systems, these crimes the Cyber Libel Law that were superfluous.
(murder, rape, etc.) are prohibited. • The validity of each norm can also be traced back to a higher
• However, every legal system is an interplay of a static legal norm until it reaches the basic norm.
order and a dynamic legal order. • All norms whose validity may be traced back to one and the
• Dynamic type – governed by the positive acts of people which same basic norm form a system of norms or an order.
are manmade. • Example:
• This is a rule that stipulates how the general and individual
norms of the order based on the basic norm ought to be created. Constitution
• Example:
o Children cannot be punished – static Local Goverment
o Child Abuse Laws – dynamic Code
• In every country, even if there are family resemblances or a
shared static law, it differs because of people’s culture (dynamic City Ordinance
legal order).
• Example: Prostitution is allowed in Netherlands but not in the
Basic Norm as Transcendental-Logical Presupposition
Philippines
• Even if every country agrees to a particular set of rules which • Kelsen’s approach seems to be very factual: just pinpoint the
we call as the static legal order (e.g. killing is bad), the source and that’s it.
application of the static legal order in every country will already • However, there seems to be an element of transcendentalism or
an element of believing in something that is not factual.
 • Illustration: Smoking ban in barangays demonstrated but is ‘assumed’ or ‘postulated’ or is a
o Kelsen – point the provision granting it (local ‘hypothesis’.
government code) then point the source of this power • Hart’s analysis of a social rule stressed more emphatically this
(Constitution) etc. connection between law and the legal system and society.
• Remember the first cause argument of St. Thomas Aquinas • Hart faulted Kelsen for focusing too much on the content of laws
• Kelsen is engaged in a cause and effect relationship. He is trying and neglecting the circumstances that concern the making and
to lead us to the cause and effect relationship of the law which origin of laws. Apart from belittling the social character of law,
has a source which is the cause of that law and that law is also this focus on content, Hart argued, led to false conclusions on the
an effect of another law, etc. unity of national and international law.
• Critics of Kelsen say that as much as Kelsen wanted to have a • Hart said that the more you include factors (the sociology and
pure theory of law, his reasoning is not the reasoning of a history of law), the more you will be given a holistic picture of
positivist. His logic is the logic of St. Thomas Aquinas. the law.
• Kelsen wanted to make it appear that he is a purist thinker and • The pure theory suffers from the defects of my imaginary pure
that he thinks in terms of facts, but the way he presented theory of imperatives, for it concentrates too exclusively on the
philosophy is using the reasoning of the naturalist philosophers, contents of laws and pays too little attention to circumstances
particularly the reasoning of St. Thomas Aquinas. that concern the making and origin of laws.
• Critics of Kelsen would say that it is impossible to proceed to an • Kelsen’s commitment to purity and logical rigor led him to
infinite number of sources of law. Therefore, there has to be the another misconception, his theory that a law as it was ordinarily
first source of law. This is what you call as the transcendental understood as duty-imposing was an incomplete law.
logical presupposition. • Law, to him, was an indirect system of guidance: it does not tell
• Transcendental - It is not anymore factual. subjects what to do.
• Logical - You cannot proceed to an infinite number of sources of • Kelsen was a slave to his theory. Because of his obsession and
law. Therefore, there has to be the first source of law. insistence on its purity and logical rigor, he was blind to the
• Presupposition – It is an exercise of the ordinance of reason. You social nature of law and was compelled to arrive at disturbing
do not see it, but it does not mean that it does not exist. conclusions which obscure and distort, rather than clarify and
• Even if Kelsen wanted to be a purist, he eventually went back to illuminate.
metaphysics. • According to Hart, law is a union of primary and secondary
rules. (Remember this!)
Criticisms: Metaphysics cannot be eliminated. It presupposes that the
• The way to study the law must be in the linguistic-analytic
validity of law is based on another law. Kelsen’s theory is based only on
method of philosophy.
presupposition. (1:22:00)
o “linguistic-analytic method” – study the law based on
H.L.A Hart language
• According to Hart, Kelsen wasn’t able to overcome the problem • The answers to questions like “what is the state?”, “what is the
with the sources of law, and therefore, he resorted to law?”, “what is right” will give you a complete understanding of
metaphysics. He is guilty like the natural philosophers. law.
• Law is not a presupposed study of facts but should be seen as a • Hart wanted to have a definition of the concepts that are going
fact. (verification, falsification, correspondence) to be used in the philosophy of law. (1:35:00)
• The legal validity of other rules of the system can be • *Listen to the last 5 mins of the audio*
demonstrated by reference to it, its own validity cannot be
Third meeting: April 14, 2020 o Descriptive Sociology – knowing how the law operates
in particular contexts in the society.
Law as the Union of Primary and Secondary Rules
• Hart made it clear that his aim has been to further the
H.L.A Hart understanding of law, coercion, and morality as different but
• The method of Hart is the linguistic tradition. related social phenomena.
• Why “linguistic tradition?” Because the manner of • Contrary to the previous philosophers who tried to eradicate or
philosophizing of Hart in his theory is a clarification of concepts remove morality in the study of law, Hart believes that these
in language. concepts of law, coercion, and morality are all interconnected.
One cannot exist without the other.
Methodology • In other words, Hart is proposing a holistic study of law. Law
• Hart’s methodology can be divided into a theory of definition cannot be studied independently without studying coercion and
and a theory of law. morality.
• It’s like a coin; it has two sides. You cannot separate one from • Although the study of law is a legal activity, it is also a moral one.
the other. • “What is law?” – According to Hart, even if we confine our
• The methodology is a theory of definition by asking the meaning attention to the legal theory of the past 150 years and neglect
of certain concepts and the theory of law. Out of those classical and medieval speculations about the nature of law,
definitions, there comes now a theory of law. there will always be a societal or non-verifiable definition that
• He developed both topics and his methodology, just like his will come in.
version of legal positivism. • In other words, as much as legal philosophers want to define law
purely as it is, without having any influence of morality or
A. Theory of Definition
sociology, that definition will always be incomplete or
• Hart first introduced his theory of definitions in his inaugural insufficient without taking into consideration the study of
lecture as Holder of the Chair of Jurisprudence at Oxford in his sociology and how the law is applied in certain contexts.
article entitled: “Definition and Theory in Jurisprudence.” • According to Hart, the study of law is complex because there are
• In this article, he started to ask questions such as, ‘What is a many human factors that need to be considered. The law is not
State?’, ‘What is the law?’, ‘What is a right?’ and so on. just about provisions or application of legal principles. The law
• The philosophy is about an inquiry of language. is also about the history, culture, and ethics of a particular
society.
Legal Right
There are recurrent themes regarding the question of the nature of law,
(1) There has to be an existence of a legal system.
and it is the resolution to these themes which provides the key to the
(2) There has to be rule or rules in that system, obliging the person
answer to the question.
to do or not to do a certain act.
(3) The obligation is a made by law dependent on the choice of the 1. The first issue is connected with the concept of obligation.
person authorized to act in his behalf or on another’s behalf. o An obligation is a defining characteristic of law.
o Laws are obligations in its simplest sense.
B. Legal Theory
o All laws are obligatory.
• The legal theory of Hart is a combination of conceptual analysis o An obligation is a necessary characteristic of a law.
and descriptive sociology. o Law, in its simplest sense, is an obligation.
o Conceptual analysis – defining words

 2. The next recurring issue is the issue of obligation. • Example: In the Philippines, you are supposed to respect your
o Hart believes that the gunman theory is insufficient. If parents and grandparents; you either kiss them or nagmamano
all orders from the gunman will be considered law, then kayo. If there is someone who violates this norm or standard of
it seems as if law is merely capricious or whimsical. behavior, it seems as if the person is not following the rules in
o Hart said that it may be obligatory, it may be coercive, Philippine culture. There is no particular threat for punishment,
and the person to whom to gun is pointed at should but there are rules in every context.
follow, but it doesn’t mean that what the gunman is • Laws are rules themselves, but laws have threats for
saying is considered a law. punishment.
o Hart believed that not all obligations can be considered • Although rules vary in terms of culture or country, there are
law. There may be obligations, but a law cannot arise laws that are universal. Law is a combination of these various
from violent coercion. rules.
o Morality comes into play. Why? Because morality is the • Examples of rules: Dapat magpaalam bago manghiram, dapat
balance between obligatory force and coercion so that maging tapat sa kapwa
the obligation becomes acceptable to society. • Example of laws: provision of law for theft, provision of law for
o Going back to the example, Hart believed that the estafa
pronouncements of the gunman cannot be considered • Civil law is a product of socio-cultural rules that a culture has in
law because morality is not playing its role. Thus, the every country.
commands of the gunman are not considered law. • If you will study the natural state of man, you will already see
o Once the legal scholars start to think about justice, they rules even in the absence of civil law.
are already engaged in a moral conversation. • Example: During the pre-Hispanic time, there were different
o Justice and morality are inseparable, just as law and barangays, and there is no unified law, but each barangay was
morals share a common ground and a common following its own set of rules that may be different compared to
understanding of rights and duties. another barangay.
o The moment you ask yourself, ‘what is justice’, that is
• In the natural state of man, even without civil law, there are
already a discussion of morality.
already rules in place because rules are products of reason.
o Hart proceeded to ask, ‘If we allow the study of law by
Dahil nag-iisip ang tao, nagkakaroon na siya ng sariling
not taking into consideration morality, is it possible
mekanismo para magkaroon ng kaayusan ang kanyang lipunan.
that an unjust law be considered a law to begin with?’
• But as society progresses, people deemed it necessary to posit
o Hart made a critique of John Austin’s theory of the law
or write a common rule, and in order to bind people of this rule,
being the command of the sovereign backed by the
there has to be threats or punishments, and this is now what you
threat of punishment.
call as law.
o According to Hart, the reason why the context or
culture should be taken into consideration is that law is Theory of Leviathan by Thomas Hobbes
composed of two rules: the primary and secondary • Hobbes envisioned of the Leviathan or the powerful monster
legal rules. which he calls the state.
Rules • In order to preserve their own right, people would rather give a
portion of to it to someone or something that is greater than
• Rules are standard norms or behavior with or without a threat
them so that the rest of the members of the class will bind
for punishment.
themselves not to get others’ share because if they do, that
 person to whom they have surrendered their share to will Characteristics of Social Rules:
punish them.
1. There must exist such a convergence of behavior of the majority.
• Suppose there are 10 members in a group. They all have o It focuses on the number of people doing the act.
chocolates. In the natural state of things, they respect each o Habit is personal. Each of us has his or her own habit. For
person’s chocolate. What if matakaw yung isa? There is already example, my habit is to pray before sleeping.
a certain rule, but these rules are not sufficient, and therefore, o However, if that habit is practiced by the majority as a
law is needed. The rule, from the natural state of things, standard form of behavior, it has already attained the status
transformed into law because there is a threat or punishment. of a rule.
• Laws are created by men out of their natural state. How was law 2. There has to be the standard of good reason for behaving in
created? Para hindi mag-agawan sa chocolate, you will accordance with the rule.
surrender a part of your piece/freedom to someone greater o It focuses not on the people but on the act itself, whether the
than you or a juridical entity which is called the state so that the act may be universal.
state will regulate the members’ actions or behavior. If any o Good reason – the product of logic out of universal standard
member will do the opposite or will try to harm any fellow form of behavior.
member of the state, the members themselves have empowered o If all people will do this particular act, will it promote the
the state to punish that particular member who violates the rule. common good? If the answer is yes, then it is a rule.
• There was an evolution from the natural state of things; the o Suppose that in a society, more than 50% are murders.
rules became law because there was already threat or Therefore, the act of killing has become a standard behavior
punishment. of the majority. However, what if all people kill? Will this
• All laws are rules. Rules have obligatory force, and all laws have promote the common good of the society?
obligatory force. However, not all rules are laws because not all o There is no good reason to legitimize theft or robbery in a
rules have coercive or obligatory force. society.
• The reason why the law exists is that there is a recognition of 3. There must exist an internal aspect.
the insufficiency of the rules. o It focuses on the very person who wishes to be bound by the
• If society will only be governed by rules, chaos and anarchy will rule.
surely happen because rules are not sufficient to govern human o Internal aspect – the critical, reflective attitude of the
conduct because rules have no punitive or coercive factors. person.
Social Rules o Do you feel you have a moral obligation to do this particular
act?
• A rule is a product of habit. o If all characteristics are present, then that is a rule.
• A habit is a repeated action of a society. o Notice that the characteristic of a rule does not include
• This habit becomes a rule after a few years of practice. coercion, threat, or punishment.
• However, not all habits are rules.
Primary Rules
• Habit → Rule → Law
• The mistake of legal philosophers is studying law purely as it is, • Primary rules impose duties.
not taking into consideration the history of the law itself and not • Primary rules impose actions involving physical movements of
accepting that the law is a product of societal rules and contexts. people.
• Primary rules require actions of human beings to do or not to do
certain acts.
 • Example: All substantive laws are primary rules. grave abuse of discretion amounting to lack or excess of
o Family code and civil code are primary rules because jurisdiction.
they require you to do a certain act. o It enables you to check whether an order or a ruling of
o Criminal law and special penal laws restrict or govern a court or any quasi-judicial body is legal by going back
human actions not to do things. to substantive law.
o Ang Ladlad vs. Comelec – LGBT group, Ang Ladlad,
Secondary Rules
wanted to formalize a party-list representation.
• Secondary rules are parasitic primary rules. Comelec (part of the executive branch that exercises
o Parasitic – dependent on primary rules. quasi-judicial functions) disapproved the legalization
• Secondary rules also confer powers, public or private, how of Ang Ladlad to participate in the elections because
primary rules are enforced. according to Comelec, the LGBT community exhibits
• Examples: Rules in procedure indecent and inappropriate behavior for it to join as a
• Secondary rules govern the procedural methods by which political party in Congress. Ang Ladlad moved for a
primary rules are enforced, prosecuted, and followed. motion for reconsideration and argued that they should
• There can be no remedial law without substantive law. be allowed to run as a political party because they are
• If you will study the law only based on primary rules, there will also a sectoral group of the society. Comelec, in its
be no system as to how these primary rules are to be enforced. decision, quoted provisions in the Bible and Qur’an
For example, all men are presumed to be innocent unless proven about immoral doctrines allegedly committed by the
guilty (substantive law). There has to be trial before conviction. members of the LGBT. Ang Ladlad filed a petition for
But what happens if there’s no procedure? Hart will say it will certiorari with the SC. The SC ruled that Ang Ladlad
be chaotic. Because there are no secondary rules that tell you should be allowed to run because they are indeed
how to preserve or conduct the primary rules. underrepresented, and there are certain rights that
need protection.
Three Secondary or Remedial Rules: o Substantive basis of the Court – The Constitutional
1. The rule of recognition provision on freedom of expression (substantive law)
2. The rule of change o Mechanism in order to be reasoned out – Petition for
3. The rule of adjudication Certiorari (procedural tool)
o It checks whether a policy is still in accordance with the
Rule of Recognition
substantive law.
• Provides that any member of the society may check to discover
Rule of Change
what the primary rules of the society are
• Also known as the rule of verification of validity - Verify the • States that primary rules or substantive laws may be amended
source of the primary rule or changed
o Example: Petition for Certiorari (Rule 65) – Procedural • This is why substantive laws may be repealed.
remedy which allows you to trace the validity of the Rule of Adjudication
exercise of an order or decision to a substantive law
o It is used when any court or government body that • Provides that the society might determine when a rule has been
exercises judicial or quasi-judicial function commits a violated and prescribe a remedy
• The courts interpret the law and determine whether a rule has
been violated by members of the society.
Criticisms of Hart’s Theory of Law aspect as an element of a social rule, people will choose based
on their own interpretative inclination.
• There is a confusion between primary and secondary rules. The
• In the Philippines, everyone may say that graft and corruption
definitions of primary and secondary rules are unclear.
is valid law. The provisions on graft and corrupt may be a
• Dworkin said that Hart’s theory is insufficient because it does
convergence of behavior of the majority, there may be a good
not explain all aspects of law. He stipulates that Hart failed to
reason for behaving it, but once internal aspect comes in, people
incorporate principles into his description of what law is.
will choose not to obey it because they would rather be
• Dworkin specifically attacked the rules of recognition. He
individualistic and not to follow the law in order to enrich
quoted the case of Daniel vs. White & Sons and Tabard. In this
themselves rather than be bound by the law.
case, plaintiffs purchased a drink labeled as lemonade from Mrs.
• Dworkin says that the problem of the theory of Hart is that when
Tabard and became ill. It was discovered that the illness was
he included internal aspect as an element, it gives room for
caused by the consumption of the lemonade (contaminated by
subjective and individualistic interpretation of the law. If Hart’s
an acid). Plaintiffs sued for damages. Dworkin said that there
theory is correct, there is no more need for litigation because the
was an application of substantive and procedural laws. In that
law will be applied as is. The reason why litigation still exists is
court, the judge argued that the case fell under the laws
because there is a debate as to the internal aspect of the law in
concerning sales, and the defendant was guilty and should pay
which people refuse to be bound by the law that they have
the damages. The judge followed the rule specified. Hence, the
violated and justified and their own violation for the same.
law was applied.

• According to Dworkin, however, some cases do not always seem
to fall so clearly under the law. The problem of Hart is that he
establishes that everything is so clear, that there are values that
may be invoked a moral or social duty in the application of the
law. Dworkin argues that the law, in fact, is largely complete and
has no need of any moral grounds or factors. Dworkin
eliminates morality and the sociology of the law.
• Dworkin says that the problem of the theory of Hart is that
moral principles are taking into consideration in Hart’s theory,
but these moral principles are often wrong even to the extent
that certain crimes are acceptable if one’s moral principles are
incorrect or skewed enough.
• The third characteristic of a rule (internal aspect), according to
Dworkin, is problematic because it leaves efficacy or the validity
of the law in a purely individualistic manner. The reality is that
man chooses which law he wants or does not want to follow.
• Hart presupposes that all human beings, given his characteristic
of rules, will be kind enough to allow themselves to be bound by
the rules in order to follow the law. But Dworkin found out that
element of internal aspect makes efficacy a purely
individualistic manner. The reality is, if you will include internal
Fourth meeting: April 21, 2020 • Social positivists say that law is merely an application of fact.
H.L.A Hart There is a distinction between law and morality. The legal
philosopher has simply to apply the law in a case. Dworkin,
• Philosopher of law who made a critique about John Austin’s however, rejects positivism’s social fact thesis on the ground
theory, that law is the command of the sovereign backed by the that some legal standards of authority cannot be explained by
threat of punishment. Hart disagreed with it. According to Hart, social facts. There is always some kind of subjectivity from the
just because a person has a gun or has threats, it does not judge in interpreting the law.
necessarily mean that whatever he or she says is already • The point of Dworkin is that there are certain things that come
considered as law. into play in deciding legal problems. The law may be clear;
• Hart distinguished primary and secondary rules. however, legal standards cannot totally be explained in terms of
o Primary rules are rules that govern human conduct social facts.
(e.g. substantive laws). • In deciding hard cases, for example, the judge will always invoke
o Secondary rules are procedural rules or methods by moral principles that Dworkin believes do not derive their legal
which primary rules are enforced and prosecuted (e.g. authority from the social criteria of legality according to Hart’s
criminal procedure, Rule 65, civil procedure, etc.). theory of recognition. You can never be a purist in deciding hard
• Hart specifically enumerates 3 secondary rules: cases because you will always invoke moral principles, which
o Rule of recognition – rule by which any member of the are based not on law but on the society that you are in, the way
society may check to discover what the primary rules of you were raised by your parents, your personal circumstances,
the society are etc.
o Rule of change – rule by which existing primary rules • Nevertheless, since judges are bound to consider the principles
might be created, altered, or deleted when relevant, they still apply the law. However, prior to their
o Rule of adjudication – rule by which the society might application of the law they have considered first their moral
determine whether the rule has been violated and principles.
prescribe a remedy; vested on courts • Dworkin concludes that if we treat principles as law, we must
Dworkin reject the positivist’s first tenet that the law of a community is
distinguished from other social standards by some test in the
• Critique of Hart’s legal positivism form of a master rule.
• The primary attack of Dworkin is in the rule of recognition of • People may want to be bound by law, but it does not necessarily
Hart. Remember that according to Hart, there is what you call as mean that they follow whatever law they have in society
the rule of recognition which is not merely an internal aspect but because there are certain, internal and personal factors that
the willingness of an individual to be bound by certain rules or come into play.
law. The criticism is that if there is such rule, it seems that it is • Dworkin believes that adjudication is and should be
very individualistic method of applying the law. interpretative. Judges should decide cases by interpreting
• Dworkin, as a critique of Hart, said that you cannot really political structure of their community or by trying to find the
separate morality and law. He denies that there can be any best justification they can find. When judges decide on cases,
generic theory of the existence and content of law. He also they do not simply apply the provision of immediately; they
denies that local theories of particular systems are achievable justify what happens or what are the effects of the application of
(i.e. every judge or lawyer will always have a recourse to his or a particular law in society as a whole.
her moral merits).
• For example, in the case of Marcos vs. Manglapus, President may establish for himself, for example, a rough
Marcos was already in Hawaii after his escape from the threshold of fit which any interpretation of data must
Malacañang. In Hawaii, he learned that anytime soon, he would meet in order to be acceptable on the dimension of fit.
die because of lupus. Therefore, he wanted to die in the PH. He After knowing the laws, good customs, or public policy
then invoked his right to travel in order to go back. Was he of the society where the judge is in, he has a model in
allowed by the government? No. The SC said that at that point of his mind. He will just check if the facts are acceptable to
time, PH society was still so fragile that his return can start the dimensions of the fit. If those facts are acceptable to
another revolution and class division. This is an application of him or the facts match the model he has in his mind,
Dworkin’s theory. If you follow the concept of Hart, there are then suppose that if more than one interpretation of
constitutional provisions about liberty of abode and the right to some of the law meets his threshold, then the choice
travel. Marcos tried to go back to his country because of these among these should be made not through further and
provisions. However, despite of these constitutional provisions, precise comparisons but by choosing the interpretation
the Court interpreted the best justification they can find and which is substantively better – that is which promotes
principles of political morality and for the structure of the PH as the political ideals he thinks is correct.
a whole. • According to Dworkin, the legal authority of a binding principle
• Two elements of successful interpretation: derives from the contribution it makes to the best moral
o A successful interpretation happens when it justifies justification for society’s legal practices considered as a whole.
the particular practices of a particular society. Thus, a legal principle contributes to a justification if and only if
§ This interpretation must fit with those it satisfies two conditions: first, the principle coheres with
practices in a sense that it coheres with existing legal materials; and second, the principle is the most
existing legal materials defining the practices. morally attractive standard that satisfies the judge.
It must fit with good customs, morals, and o The principle of coherence – provides that the
public policy of every society. application of the law is coherent with existing
§ A judge or lawyer does not need to go to the materials or the existing law.
exact provisions of law; one must only examine o The principle is the most morally attractive
the present context. standard that satisfies the judge – Is it acceptable to
§ According to Dworkin, the reason why there is society? Going back to the case of Marcos vs. Manglapus,
no definition for concepts such as good to allow the President to go back to the PH is not the
customs, morals, and public policy is that they morally attractive standard thing to do.
are always changing. • Dworkin believed that the correct legal principle is the one that
§ For example, the chopping of one’s head may makes the law the moral best it can be.
be contrary to the public policy or good • Dworkin expands the scope of a constructivist view beyond
customs of Filipinos, but it is allowed in Saudi adjudication to encompass the realm of legal theory.
Arabia precisely because both countries have
Conversational Interpretation vs. Artistic Interpretation
different societal contexts. Is this a valid law?
Yes, if it is allowed based on the culture of the • The task of interpreting social practice is more like artistic
people. interpretation.
o Dworkin argues that a judge should strive to interpret
a case roughly the following way: A thoughtful judge
 • Judicial legislation – when a court applies a provision not What is Law?
considered a law; when the court itself legislates. (Remember • Law is interpretative – The law is whatever follows from a
that power to legislate is vested in Congress)
constructive interpretation of the institutional history (morals,
• Dworkin’s theory leads to judicial legislation or artistic good customs, public policy) of the legal system.
interpretation • Some judges or justices hold on to their moral principles even if
• Lower courts are engaged in conversational interpretation people will believe that their moral principles are wrong.
• Conversational interpretation – there is merely a parroting of • One will interpret the law and the facts based on his own
the law, by quoting what has already been said or established by analytic lens coming from his own context.
a higher judicial authority (ex: if a lower court reasons that this
• Fairness is the exchange of people who are interpreting the law
is supposed to be the law because of a particular jurisprudence) in order to arrive at the most reasonable answer.
• Artistic/creative interpretation – the job of the SC to interpret
the law based on the facts; no judicial precedent Right Answer Thesis
• Both interpretations are present in our legal system: • Suppose the legislature has passed a statute stipulating that
o Lower Courts – conversational interpretation sacrilegious contracts shall be invalid. The community is divided
o Supreme Court – artistic interpretation as to whether a contract signed on a Sunday is sacrilegious. Tam
• Judges are not totally free to interpret the law. They have and Tim have signed a contract on a Sunday. Tam now sues Tim
freedom, but there are still boundaries for them to apply the law. to enforce the terms of the contract whose validity Tim contests.
General Theory of Law Does the judge have to look for the right answer on the question
of whether Tom’s contract is valid even though the community
• The point of every general theory of law is to interpret a very is deeply divided about the right answer? Is it more realistic to
complex set of related social practices that are created by people say that there is simply no right answer to the question?
as an entity distinct from them. • Although there is a general theory of law (that sacrilegious
• The job of the justices or the court is to remove unnecessary contracts are invalid), but because of the subjective
facts in order to arrive at the issue of the case. interpretation of the parties (one has a different religion), the
• General theories must be abstract because they aim to interpret meaning of the word ‘sacrilegious’ is different compared to the
the main point and structure of legal practice (ex: criminal law) interpretation of others.
• A judge may easily use them in his or her decision • How will you resolve the issue? Is it by mere application of the
• Dworkin: “What made you use that general theory of law?” law? Dworkin says NO. The answer lies not in the law. Once you
• Judges know the general theories of law, but the question is, how factor in the predilections of people, it becomes ambiguous
will you know which law to apply to make a decision? Why is it because there are different interpretations of a sacrilegious
that justices have concurring or separate opinions? This is a contract.
proof that laws are not static. • The answer is not in the law itself. The answer will lie to the
• There are factors that make the judges or justices use the authorities of the law (justices) with regard to their
general theories of law in order to justify a decision. interpretation of a sacrilegious contract.
• Dworkin rejects not only positivism social fact thesis that laws • In voting or deciding cases, we follow the rule of the majority,
are mere facts that you simply apply them but also its but it does not mean that their interpretation is right.
underlying presuppositions about legal theory. • Principle of incommensurability

Joseph Raz justifications involving so many things just so you can achieve a
verifiable fact.
• Intellectual successor of Hart
• He argues that we are justified in subjecting our will and Detached Legal Statement
judgement to another when: • A statement of law of what legal rights and duties people have,
(1) We are more likely to do the right thing by doing so than we not a statement about people’s beliefs, attitudes, or actions
are by deciding for ourselves; above the law
(2) This is not a matter for which there are special reasons • According to Raz, the interpretation of ‘internal rules’ is
making it important that we decide for ourselves. incorrect. The problem with Dworkin is that he interpreted
Illustration: (Reasons for following an authority) Why do you internal rules as if everything is just about the personal taste of
follow the rules of San Beda? an individual. However, not all internal rules are personal bias.
(1) You follow it out of convenience (there’s no need to think There are those which are called ‘detached legal statement.’
because there’s already an authority that gives you a • Lawyers do not commit themselves to such beliefs when acting
pattern of behavior) in a professional capacity. When they give advice, it doesn’t
(2) You have personal reasons for following the authority (you necessarily mean that they believe (100%) in the advice that
want to graduate) they are giving. The advice they give is based on the legal rights
and duties of people.
• Raz treats our concept of law as something unique. He says that
our concept of law is influx (nagbabago) and could influence the • We can never eliminate normative rules in legal philosophy.
concept of law of future generations. • A practicing lawyer can give legal advice, but that advice may be
independent of what he or she believes in. It is their duty to
3 Objectives to Conceptual Definition (According to Brian Bix) separate their personal bias in the application of the law.
“Conceptual Definition” – asking the meaning of a word External Statements
1. They can be an attempt to track and explain linguistic usage; • Statements about other people’s practices and actions, attitudes
2. They can be an attempt to discover the significance of a concept and beliefs concerning the law
hidden in our practices and intuitions;
3. They can impose moral or qualitative criteria which must be met Internal Statements
before (___) shall be applied • Those applying the law, using it as a standard by which to
The philosopher should pay attention to the usage of language by looking evaluate, guide or criticize behavior
at verifiable facts. Law could even be an accident of style, but there’s only 4 Aspects of a Complete Theory of Legal System
one pragmatic interpretation of the law.
1. The problem of existence to furnish criteria to determine the
Example: The Decisions of the Courts are mere accidents of style. But in truth or falsity of such statements (i.e. there must exist an actual
reality, there is already a decision (e.g. to let an accused go out of prison). legal system – verifiable and falsifiable)
Another example: You want to go to a school activity. Ang dami pang 2. The problem of identity (criteria of membership)
sinasabi sa parents (may additional grade, required ni dean, etc). In 3. The problem of structure (patterns or regulations among law)
reality, the only reason why you want to attend the activity is – andun si 4. The problem of content (comments)
crush! You are constrained to make a whole lot of excuses or