V.

Positivism, Interpretation, Justice, and Punishment (Week 8)

A. Legal Positivism

1. Law as Commands

Legal positivism is a school of thought that emphasizes the conventional nature of law,
separating it from morality. Proponents of legal positivism argue that law is a system of rules
and commands created and enforced by a sovereign authority. John Austin, a prominent
figure in legal positivism, viewed the essence of law as an order backed by threats, where
the sovereign's will is the ultimate source of legal validity. He believed that law does not need
to be moral to be considered valid. Thomas Hobbes, another legal positivist, argued that
laws cannot be unjust because they are established by those with sovereign power. This
perspective, known as legalism, emphasizes strict adherence to the letter of the law without
consideration for moral principles.

2. Law as Social Rules

H.L.A. Hart, a noted legal positivist, expanded on the concept of law by introducing the idea of
law as a system of social rules. Hart recognized the importance of primary rules (rules of
conduct) and secondary rules (rules that govern the creation and application of primary rules).
He argued that legal systems are not simply based on commands but on a complex interplay of
rules accepted and followed by society. Hart also acknowledged the intertwined nature of law
and morality, noting that while they have a common origin, they are distinct concepts.

3. Law as Norms

Hans Kelsen, another influential legal positivist, proposed the "Pure Theory of Law," which
views law as a hierarchical system of norms. Kelsen argued that legal validity derives from a
fundamental norm (Grundnorm), which is the ultimate source of legal authority. Lower-level
norms gain their validity from higher-level norms, creating a pyramid-like structure of legal rules.
Kelsen, like other positivists, aimed to separate legal science from political considerations.

B. Law as Interpretation

1. Statutory Construction

Statutory construction involves interpreting and applying legislation. It requires analyzing the
text of the law, legislative intent, and relevant legal principles to determine its meaning and
application in specific cases. Legal formalism emphasizes strict adherence to the plain
meaning of the law's text. This approach, also known as textualism, prioritizes the literal
interpretation of statutes.

2. Precedence
Precedence plays a crucial role in legal systems that follow the common law tradition. Courts
rely on past decisions (precedents) to guide their rulings in similar cases, ensuring consistency
and predictability in legal decision-making. The doctrine of stare decisis emphasizes adherence
to precedents to maintain legal stability.

3. Judicial Activism

Judicial activism refers to judges' willingness to go beyond the strict interpretation of existing
law to address social or political issues, often by striking down laws or creating new legal
principles. Proponents argue that judges should actively shape the law to promote justice and
address societal needs. Critics argue that judicial activism undermines the separation of powers
by usurping the role of the legislature.

4. Liberalism

Liberalism in law emphasizes individual rights, freedom, and the rule of law. Liberal legal
theorists advocate for legal systems that protect individual liberties from government intrusion
and promote equality and fairness.

5. Law as Integrity

Ronald Dworkin, a prominent legal philosopher, proposed the concept of "law as integrity."
He argued that law is not simply a collection of rules but embodies moral principles that
judges should strive to uphold in their decisions. Dworkin emphasized the role of principles in
legal reasoning, arguing that judges should "interpret" the law to find the best fit with existing
legal principles and ensure coherence and moral consistency in the legal system. He believed
that judges have a duty to decide cases according to rights and principles, even in "hard cases"
where there is no clear precedent. Dworkin saw the law as a "seamless system" where
judges must turn to general principles when specific laws are absent.

C. Rights and Justice

1. Scheme of Jural Relations

Wesley Newcomb Hohfeld developed a scheme of jural relations that categorizes legal
relationships into various categories, including rights, duties, privileges, and powers. This
framework provides a precise way to analyze and understand the legal positions of individuals
and entities in specific situations.

2. Rights Theory

Rights theory examines the nature, scope, and justification of rights. It explores different
conceptions of rights, including natural rights, legal rights, human rights, and moral rights.
Rights theory also investigates the relationship between rights and duties and how rights should
be balanced in cases of conflict.

3. The Concept of "Justice"

Justice is a complex concept that involves notions of fairness, equality, and the distribution of
rights and resources. Different philosophical theories offer various conceptions of justice,
including distributive justice (fair allocation of resources), retributive justice (fair punishment for
wrongdoing), and procedural justice (fair processes for resolving disputes).

4. Utilitarianism

Utilitarianism is a moral philosophy that evaluates actions based on their consequences,

aiming to maximize happiness and minimize suffering. There are two main branches of
utilitarianism:

● Act utilitarianism focuses on the consequences of individual actions.

● Rule utilitarianism considers the consequences of following general rules.
○ Ideal rule utilitarianism seeks to identify rules that, if consistently followed,
would produce the greatest overall happiness.

5. Economic Analysis of Law

Economic analysis of law applies economic principles to legal issues, examining the costs
and benefits of different legal rules and policies. Richard Posner, a prominent figure in this
field, argues that the goal of law should be to maximize wealth. He contends that efficient
legal rules promote economic growth and overall societal well-being.

6. Justice as Fairness

John Rawls, a renowned political philosopher, developed a theory of "justice as fairness." He

argued that a just society is one that is structured according to principles that would be
chosen by rational individuals in an "original position" where they are unaware of their
social status or other individual characteristics. Rawls's theory emphasizes fairness, equality of
opportunity, and the protection of basic liberties.

D. Crime and Punishment

1. Crime and its Nature

Crime is generally defined as an act or omission that violates the law and is punishable by the
state. The nature of crime involves various elements, including the act itself (actus reus), the
mental state of the offender (mens rea), and causation.

2. Guilt and Innocence

Guilt refers to a finding that a person has committed a crime and is legally responsible for it.
Innocence means that a person is not legally responsible for the crime charged. Determining
guilt or innocence involves evaluating evidence, applying legal standards, and ensuring due
process of law.

3. Justification and Excuse

Justification and excuse are legal defenses that may absolve a person of criminal liability even
if they committed the act in question. Justification defenses, such as self-defense, claim that the
act was not wrongful under the circumstances. Excuse defenses, such as insanity, argue that
the defendant should not be held responsible for their actions due to a lack of criminal intent or
capacity.

4. Theories of Criminal Law and Punishment

Various theories attempt to justify the existence and purpose of criminal law and punishment,
including:

● Retributive theories emphasize punishment as a deserved consequence for

wrongdoing.
● Utilitarian theories focus on the deterrent effects of punishment and its potential to
reduce crime.
● Rehabilitative theories aim to reform offenders and reintegrate them into society.

5. Due Process

Due Process is a fundamental legal principle that guarantees fair treatment and protection of
individual rights in legal proceedings. It ensures that individuals are notified of charges against
them, have an opportunity to be heard, and are protected from arbitrary government action.

6. Death Penalty

The death penalty, or capital punishment, is a controversial issue in criminal justice.

Proponents argue that it is a just punishment for certain heinous crimes and deters future
offenses. Opponents contend that it is cruel and unusual punishment, risks executing innocent
people, and does not effectively deter crime. The death penalty was included as a possible
punishment in the Philippines' Revised Penal Code but has since been abolished and reinstated
several times.

VI. Law, Equality and Society (Week 9)

A. Principles of Equality

● The principle of equality before the law ensures that all citizens are subject to the same
laws and legal processes, regardless of their social status, wealth, or other
characteristics.
● This principle aims to promote fairness and impartiality in the legal system, preventing
arbitrary or discriminatory treatment of individuals.
● Equality of opportunity is another crucial principle, advocating for fair and equal access
to education, employment, and other opportunities regardless of individual background
or circumstances.
 ● This principle seeks to level the playing field and create a more just and equitable
society where individuals can thrive based on their merits and efforts.

B. Right and Equality

● The relationship between right and equality is closely intertwined. Rights are often seen
as essential for ensuring equality, providing individuals with legal protections and
avenues for redress against discrimination or unfair treatment.
● For instance, the Bill of Rights in many constitutions guarantees fundamental rights and
freedoms to all citizens, protecting them from arbitrary government interference and
ensuring equal treatment under the law.
● The Universal Declaration of Human Rights similarly recognizes the inherent dignity and
equal rights of all human beings, providing a global framework for promoting and
protecting human rights and ensuring equality for all.

C. Human Rights

● Human rights are universal, inalienable rights that every individual possesses simply by
virtue of being human.
● They are considered inherent and fundamental, regardless of nationality, ethnicity,
gender, religion, or any other status.
● Human rights encompass a wide range of rights, including civil and political rights (such
as the right to life, liberty, and security of person), economic, social, and cultural rights
(such as the right to education, healthcare, and an adequate standard of living), and the
right to development.

D. Equality before the Law

● Equality before the law is a cornerstone of a just and democratic society.

● It ensures that the law applies equally to everyone, regardless of their position or
background.
● This principle is essential for upholding the rule of law, which holds that all individuals
and institutions are accountable to the same set of laws.
● However, critical legal theory challenges the assumption of equality before the law,
arguing that the legal system often reflects and reinforces existing power structures and
inequalities.

E. Formal Rationalization of Law

● Formal rationalization of law refers to the process of making legal systems more
systematic, rule-based, and predictable.
● This often involves codifying laws, establishing clear procedures, and emphasizing
logical reasoning in legal decision-making.
● Formal rationalization aims to enhance the efficiency, transparency, and objectivity of the
legal system.
 ● Legal positivism, with its emphasis on clear and objective legal rules, can be seen as a
contributing factor to formal rationalization.

F. Marxist Approach to Law

● The Marxist approach to law views law as a tool of class domination.

● According to this perspective, the legal system reflects and serves the interests of the
ruling class, perpetuating economic and social inequalities.
● Marxists argue that law is used to maintain the status quo, protect private property, and
suppress challenges to capitalist exploitation.
● They see law as inherently biased in favor of the powerful, and advocate for
revolutionary change to create a more egalitarian society.

G. Communicative Action and Law (Jürgen Habermas)

● Jürgen Habermas, a prominent social theorist, developed the concept of

communicative action, which emphasizes the role of rational discourse and
consensus-building in social interactions.
● Habermas applied this concept to law, arguing that law should be based on open and
inclusive dialogue aimed at reaching shared understandings and achieving social
integration.
● He believed that legitimate laws are those that emerge from a process of free and
equal communication, where all affected parties have a voice and can participate in
shaping the rules that govern them.

H. Foucault's Critique of Liberalism and Law

● Michel Foucault, a French philosopher and social theorist, offered a critical perspective
on liberalism and law.
● He argued that power is not simply located in the state or government but is
dispersed throughout society, operating through various institutions and
practices, including law.
● Foucault saw law as a mechanism of social control, shaping individuals' behavior and
reinforcing existing power relations.
● He was particularly critical of the concept of legal rationality, arguing that it often masks
the exercise of power and serves to legitimize dominant ideologies.

I. Labor Law, Socialism and Communism

● Labor law encompasses legal rules and regulations that govern the relationship
between employers and employees, covering issues such as wages, working conditions,
and labor unions.
● Socialist and communist ideologies generally advocate for greater worker rights and
protections, emphasizing collective bargaining, social welfare programs, and worker
ownership of the means of production.
 ● They see labor law as a crucial tool for achieving economic justice and reducing
exploitation of workers.
● China's legal system, with its history of legalist authoritarianism, has been influenced by
Confucian principles of hierarchy and obedience to authority.
● The arrival of communism, with its emphasis on state authority, was not a drastic shift for
a society accustomed to strong central control.

These are a few key points about the intersection of law, equality, and society. The relationship
between these concepts is multifaceted and continues to be debated and analyzed by legal
scholars and social theorists. Understanding these connections is crucial for promoting a just
and equitable society where all individuals have equal opportunities to thrive and exercise their
rights.

Here's a summary of Law and Government topics based on your provided readings:

A. Rudiments of a Government

A government is the agency or instrumentality through which the will of the state is
formulated, expressed, and realized. In a democracy like the Philippines, sovereignty resides
in the people, as understood in its constitutional meaning. The government's functions in the
Philippines are distributed to three independent, co-ordinate departments: the legislative, the
executive, and the judicial.

B. Doctrine of Parens Patriae

Parens patriae refers to the inherent power and authority of the state, acting through the
legislature, to provide protection to persons and property of those non sui juris, such as minors,
insane and incompetent persons. The government, as parens patriae, is under the obligation to
minimize the risk of harm to those who, because of their minority, are yet unable to take care of
themselves fully.

C. Classification of Government

Governments are classified as either de jure or de facto. A de jure government has a rightful title
but no power or control, either because the same has been withdrawn from it, or because the
same has not yet actually entered into the exercise thereof. A de facto government has no legal
title but exercises the powers of a de jure government. Several kinds of de facto governments
exist, including those established by force or by the voice of a majority, and those that maintain
itself by arms against the will of the rightful legal government.
D. Inherent Powers of a State

A state has three inherent powers: police power, power of eminent domain, and power of
taxation. These are inherent powers because they precede constitutions; they are necessary in
order for the state to survive and perpetuate its existence. These powers are exercised by the
State for the general welfare of society.

E. Sovereignty

Sovereignty resides in the people of the Philippines. It is the supreme and uncontrollable power
inherent in a State by which that State is governed. While traditionally considered absolute at
the domestic level, sovereignty is subject to restrictions and limitations voluntarily agreed to by
the Philippines, expressly or implicitly, as a member of the family of nations.

F. Legitimacy

While the sources do not directly define legitimacy, they discuss instances where the legitimacy
of a government has been challenged, particularly in the context of revolutionary transitions of
power. The legitimacy of the Aquino government following the EDSA Revolution was confirmed
by the recognition of the international community and the swearing-in of Supreme Court justices
under President Aquino.

G. Machiavelli's influence on political law and legal philosophy

The sources do not contain information on Machiavelli's direct influence on political law and
legal philosophy.

H. The concept of "sovereign immunity"

The doctrine of sovereign immunity states that a state may not be sued without its consent. This
principle has evolved into a restrictive doctrine under which distinctions have risen and properly
govern acts jure imperii (acts of sovereignty or governmental acts) and acts jure gestionis
(commercial activities). State immunity extends only to acts jure imperii. The practical
justification for the doctrine is the principle that “there can be no legal right against the authority
which makes the law on which the right depends.”

I. Inalienable rights

Natural law theory posits that human beings possess inalienable rights by virtue of being
human. These rights are not granted by the state, but are inherent in human nature. The
concept of inalienable rights forms the theoretical basis of the Bills of Rights in modern
constitutional governments.

J. Freedom of action and thought

Freedom of action and thought is closely linked to the concepts of individual liberty and freedom
emphasized in natural law theory. This freedom is also reflected in constitutional guarantees of
religious freedom, free speech and a free press. However, individual freedom may be limited by
the needs of society and the common good. In a capitalist society, Critical Legal Theory argues
that freedom of action and thought is often limited by existing power structures and economic
forces.

K. Required Readings Insights

● Aquino (2020) emphasizes the structure of the Philippine legal system, outlining the
three branches of government and their functions. It also discusses the inherent
powers of the state, including police power, eminent domain, and taxation.
● Bernardo & Bernardo (2017) explores different schools of jurisprudence, including
natural law, legal positivism, interpretivism, critical legal studies, the historical school, the
sociological school, the realist school, and the economic school. It also touches on
formalism/originalism and practice theory. The authors present these schools not as
competing ideologies, but as different “modalities” with their own strengths and
weaknesses. The text offers rich discussion on the relationship between law and morality
and highlights the challenges of applying different legal theories in specific cases. The
Bill of Rights is specifically mentioned as having origins in natural law.
● Wacks (2014) provides a succinct overview of key legal philosophical concepts, focusing
on the theories of prominent legal philosophers within the European legal tradition. It
highlights the tension between law as an instrument of social change and the
challenges of interpreting law in socio-political, moral, and economic contexts. The
book is structured around key jurisprudential debates such as natural law vs. legal
positivism and the role of interpretative theories.

Here's a response based on the information available in the provided sources:

VIII. Critical Legal Theory, Postmodernism and the Future of Law (Week 11)

A. Critical Legal Studies

Critical legal theory challenges the law's assumptions and the idea that law is neutral and
objective. It argues that the law has been used to enshrine and impose the wishes of the
dominant group or institutions. Governments are seen as representing the interests of the
ruling class, and revolutions and uprisings are considered necessary to challenge the status
quo. Critical legal theory proponents question assumptions about freedom in society and the
market, arguing that choices and behavior are already conditioned by economic, social,
ideological, and political forces.

Roberto Mangabeira Unger, a figure in the Critical Legal Studies Movement, challenged
societies to rethink their understanding of rights and emancipation and experiment with different
structural arrangements to create more opportunities for more people. He advocates moving
beyond prevailing cultural and ideological norms and the dominance of specific groups to allow
for a plurality of values.

B. Postmodern Legal Theory

Postmodern legal theory, as an offshoot of critical legal theory, further deconstructs traditional
legal concepts. Postmodernism in law aims to understand law beyond traditional legal
frameworks by incorporating individual experiences and perspectives, questioning the
universality and objectivity of legal principles. Wacks notes that postmodern legal theory sees
the lack of fixed legal components as reducing law's purpose to mere political debates and
argues that the contradictions inherent in legal doctrines make them unreliable. Postmodern
legal theory proposes that law's marginal purpose should be controlled by factors outside of the
law itself.

C. Feminist Legal Theory

Feminist legal theory, another offshoot of critical legal theory, examines the law from a gender
perspective, analyzing how legal systems perpetuate gender inequality. It advocates for legal
reforms to promote gender equality and challenge patriarchal norms embedded in legal
structures. The sources do not elaborate on the specific types of feminist legal theory you listed
(liberal, radical, postmodern, and difference feminism).

D. Critical Race Theory

Critical race theory, also an offshoot of critical legal theory, focuses on the intersection of race
and law. It examines how legal systems perpetuate racial inequality and advocate for legal
changes to address racial discrimination and promote racial justice.

E. Foucault on “Other”

The sources do not provide specific information on Foucault's concept of "Other." However, his
work, as described in Wacks, examines how power structures and disciplinary techniques are
used to control and marginalize certain groups in society. Foucault's analysis of power dynamics
might be relevant in understanding the concept of "Other" as it relates to the marginalization and
exclusion of individuals or groups who do not conform to societal norms.

F. Legal Philosophy on Ecology

The sources do not contain specific discussions about the legal philosophy on ecology or the
principles you listed (common but differentiated responsibilities, polluter pays principle,
intergenerational equity, precautionary principle, transboundary harm, rights of indigenous
people).