Seven Blunders Committed by Human Society (4) by legitimate authority.

Basic features of law by Weber:

1. Wealth without work
2. Politics without principle 1. Duty to comply
3. Science without humanity 2. Due to external action or threats
4. Commerce without morality 3. By individuals tasked to enforce the law
5. Knowledge without character
Classic Elements of Law
6. Worship without sacrifice
7. Pleasure without conscience 1. Reason and Common Good
2. Promulgation and Authority
Four Elements
Eight Routes of Failure
- Law -binding communal rules; do’s and
don’ts 1. The lack of definitive rules or law, so
1. Classified into: that disputes have to be decided ad hoc
 Jural or human law – 2. Failure to publicize, or make known to
sanctioned or enacted the affected party the rules
law such as statutes, 3. Unclear or obscure legislation
case laws, normative 4. Retroactive legislation
rules, and precepts 5. Contradictions in the law
 Non-jural or meta-legal 6. Demands that are beyond the power of
law – not anchored on affected parties to observe
human promulgation, 7. Unstable legislation or frequent
such as divine law, changes in the law
natural law, and 8. Discrepancies between
physical law adjudication/administration and
2. Divine law – sacred writings legislation
3. Natural law – law of human
Species of Human Law
nature, based on the demands
of our humanity Whether a right or procedure is given:
4. Physical law – mechanical laws
of the universe 1. Substantive – establishes rights, duties,
and corollary prohibitions
Law is a rule of conduct, just, and obligatory, 2. Remedial or procedural or adjective –
formulated by legitimate power for common prescribes the manner of administering,
observance and benefit Lapitan v. Philippine enforcing, appealing, amending, and
Charity Sweepstakes Office, 60 O.G. 6841; 4 using legal rights and claims
C.A.R. (2s) 704)
As to scope:
In his Summa Theologica (“S.T.”) I-II,
Q.90, A.4, Aquinas explained that “law is an 1. Public or political – structures of gvt,
ordinance of reason ordered towards the the relationship between the individual
common good, promulgated by him who has and the State
charge of the community.” The four magic 2. Private – relationship of individuals
elements being: (1) reasonable ordinance 3. Criminal – punishable acts or omissions
(rationis ordinatio), (2) for the common
good (bonus communis), (3) promulgated,
 4. Mercantile – dealing with artificial 2. Knowledge
personalities such as corp and mgt of 3. Play
business 4. Aesthetic experience
5. Sociability (friendship)
Common law – based on case law or judge-
6. Practical Reasonableness
made law that relies on precedents set by
7. Religion (transcendence)
judges in a court case
- Cicero: 3 main components of natural
Islamic law – based on the precepts of Islam law philosophy:

Main Issues in Law True law is right reason in agreement

with nature; it is of universal
1. Law, authority, and Force application, unchanging and
III. Legal Theories everlasting. It is a sin to try to alter this
law, nor is it allowable to attempt to
Legal theory – an inquiry into the nature of law repeal any part of it, and it is
Teleological or Natural Law Theory impossible to abolish it entirely… God
is the author of this law, its
- Purpose rather than the cause promulgator, and its enforcing judge
- Looks into the principles, purpose, and
end of the law
- “Why” of the law The Positivist Theory/Command Theory
- Natural law is an example of normative
jurisprudence (what the law ought to - We follow that law because it is the law
be), which evaluates the purposes or - Highlights obedience to the content and
norms behind the law expression of the law
- According to the natural law: nature is - dura lex sed lex w/c means the law is
how people normally behave and are hard but it is the law
expected to behave - also referred to as conventionalism
- Common law-tradition assimilates w/ - Law is a product of human will, not of
natural law some natural law or divine law
- Common law: based on precedents and - There is no underlying substance,
recognizes that there are basic legal principle, or content that the law must
principles or doctrines of reason that conform. It only be procedurally correct
the courts must follow to be valid
- Civil law tradition: - Analytic jurisprudence: what it is
- John Finnis: there cannot be a value- - Overlap thesis/ought fallacy – confusing
free, unprincipled discussion of the law; what ought with what is
when we make assumptions, willy-nilly, - David Hume: “what the law is” is
about what is good (Wacks) another thing from what the law should
- John Finnis developed the central case be
approach Legalism
- In “Natural Law and Natural Rights”,
Finnis wrote that there 7 basic goods - Thomas Hobbes: laws cannot be unjust
natural to man: since the same are promulgated by
1. Life those with sovereign power
 - Legalism (rule by the law) is the - in crafting a law or deciding a case,
extreme utilitarian form of positivism think of the bad man (the bad man
(rule of law) model)
- Confucianism teaches regard for - “the life of the law has not been logic, it
hierarchy and the bond between the has been experience”
ruler and the subject, which supports
The Critical Theory
legalism
- The law has been the means to
The Hart of the Law (H.L.A Hart)
enshrine and coercively impose the
- Herbert Lionel Adolphous Hart – wishes of the dominant group of
introduced soft positivism institutions
- Law is a system of social rules - Questions the law’s assumptions such
that the people are free and the market
is free
- Associated with the subversives since it
aims to deconstruct the law
The Interpretivist or Constructivist Theory - Offshoots:
- Conceived by Ronald Dworkin - Critical feminist theory; critical race
- Points that the law is more than theory; and postmodernism
explicitly adopted rules, it has merits Study of Law in Relation to Other Fields:
and principles behind them that can be
interpreted or constructed by the 1. The Once-Upon-a-Time Approach
courts - Historical school
- It is rights-based, pro-active - Holds that the law has a past and a
construction of the law, against the “by- progression
the-rule” reading of the law in - Law develops in a gradual and
positivism evolutionary process
- There are two dimensions of legal - Raises the question of how the law
interpretation: originated
1. Formal – logical consistency - Main proponents include:
between principles and past 1. Freidrich Karl von Savigny, a
decisions German jurist who claimed that
2. Substantive – we look for law proceeds from voltgeist
principles that best explain or 2. Henry Summer Maine argued
justify the law that legal institutions must be
studied historically to be
The Get-Real Theory understood
- “pragmatic jurisprudence” – focuses on 3. G.W.F. Hegel theorized that the
human realities that are often overlooked by State is the product of
hard law, technicalities, and abstract policies converging historical forces
- Justin Oliver Wendell Holmes Jr. – 2. The Functional or Sociological
avowed proponent of judicial legal Approach
realism - The law is both a means of social
control and social advancement
- Law as a measure for behavioral 3. Structural – inferring rules from
conformity and social engineering structures and mandates
- Justifies judicial activism and judicial 4. Doctrinal – applying rules
legislation generated by precedent
- The balancing-of-interest test and the 5. Ethical or moral – appealing on
compelling interest test in the ethos or ideals of a
jurisprudence are influenced by the government
sociological school 6. Prudential – according to
exigencies and the calculus of
3. The Economic Approach costs and benefits

- Judge Richard Posner: economic

jurisprudence and consequentialism
- For Posner, the purpose of law is to
increase the balance of happiness
through wealth maximization

4. Forms-and-Fundamentals Approach
- Legal formalism or conceptualism holds
that the law is a strict science governed
by formal axioms, legal principles, and
rules of logic.
- Principle: major premise
- Facts of the case: minor premise
- Holding of the case: conclusion
- Formalism is also referred to as
“textualism” or the “plain meaning”
approach to the law or “originalism” or
the “original meaning” approach to the
Constitution

Practice Theory

- Philip Bobbit identified 6 main

modalities:
1. Historical – used when the
intention is to decipher what
was really meant by the framers
of the law
2. Textual – in looking for what
the law simply declares or
denies and how it can be
interpreted in contemporary
times