READINGS IN LEGAL PHILOSOPHY AND

THEORY

CHAPTER 1
INTRODUCTORY CHAPTER

DEFINITION, NATURE AND FUNCTION

Philosophy is taken from the Greek words, Philos and Logos, which
means “love of wisdom”.

Philosophy is the study of the universe that seeks to know the truth and
rational explanation of anything.

Philosophy of Law is that branch of philosophy which deals with the

wisdom of law. It studies the nature of law with particular reference to
the origin and end of law, and all the principles that govern its
formulation. It is part of practical philosophy.

The object of philosophy of law is the study of law in universal sense, as

law can also be studied as to its particular points in which the object is
Juridical Science or Jurisprudence.

Parts of the system of Juridical Science are:

1. Public Law
2. Private Law

Parts of Public Law are:

1. Constitutional Law
2. Administrative Law
3. Penal Law
4. Procedural Law
5. International Law

Parts of Private Law are:

1. Civil Law
2. Commercial Law
 3. Those that govern relationships among individuals or juridical
entities.

Juridical Science can only inform the people of the law among certain
people in a given period, answering only the uestion of what is
established by law of a certain system (quid juris). Philosophy of law,
however, transcends the competence of each individual juridical science.
It considers the essential elements which are common to all juridical
systems (Kant).

According to Giorgio del Vecchio, Philosophy of Law “is the course of

study which defined law in its logical universality, seeks its origins and
general characteristics of its historical development and evaluates it
according to the ideal of justice drawn from pure reason.

FUNCTION OF PHILOSOPHY OF LAW

Philosophy of law is a quest of law which appeals to reason to obtain

justice.

One function of philosophy therefore is to formulate law that is

reasonably acceptable to the people to whom it is addressed. Philosophy
of law therefore is opposed to tyranny.

The practical function of philosophy is that it teaches and prepares for

the positive recognition of the juridical ideal.

CHAPTER II
HISTORY OF PHILOSOPHY OF LAW
Every branch of knowledge is better understood by knowing its history.
History of Philosophy is a means of study and research which helps in
the acquisition of regarding knowledge philosophies advocated by
different philosophers in the past. It is a study of how philosophers
meditated upon the problems of law and justice.

Philosophy in the past has been intermingled with Theology, Morals, and
Politics.

THE PHILOSOPHY OF ANCIENT GREECE

The general history of Legal Philosophy started with the ancient Greek
philosophers Socrates, Plato, and Aristotle.

In the 15th century, the Sophists denied the existence of absolute justice.
Law to them is relative. Plato in his Dialogue disputed the Sophists.

Socrates (469-399 BC) believed in a higher justice for the validity of

which it is necessary that there is a positive sanction or a written
formulation. Obedience to the law of the state is a duty. Socrates in this
way gave the first indication of the idealistic philosophical system.

Plato (427-347 BC), a disciple of Socrates, in his two dialogues, The

Republic and The Laws, presented the ideal concept of the State as “the
most perfect unit”. The State dominates all human activity and must
promote good in any form. Justice is achieved through the harmonious
relation between the various parts of the State.

Aristotle (384-322 BC), a disciple of Plato, in his Nichomachean Ethics,

said that all supreme good is happiness, the product of virtue. The State
regulates the lives of the citizens by means of laws. The content of laws
is justice as is applied in various ways.

Kinds of justice according to Aristotle:

1. Distributive justice – applied in giving honors and respects
2. Connective and equalizing or called rectifying justice – applied to
voluntary contractual relationship.

THE ANCIENT ROMAN JURISTS

The Roman excelled the codification of law but the philosophical basis
derived from the Greeks.
Cicero said that law is not a product of choice but is given by nature.
There is eternal law which is an expression of universal reason. Equity
and natural law are factors in an ideal law.

The contribution of the Romans to jurisprudence is the formulation of

codes, putting together in a systematic form the rules and practices.

THE PHILOSOPHY OF THE MEDIEVAL ERA – THE INFLUENCE OF

CHRISTIANITY

Christianity as an advocate of liberty, equality, and the unity of the

human family through divine law became a challenge to the established
political order.

The influence of Christianity later became profound upon politics and

jurisprudence. Modifying the Greek and Latin philosophies that the
individual’s supreme mission is to be a good citizen of the State,
Christianity said that the good goal of the individual is not only on civil
life but eternal happiness which can be obtained through submission to
the Divine will.

The Church asserts itself as an autonomous authority above the State.

The State is concerned only to earthly things while the Church, with
those that are eternal.

THE RENAISSANCE

The Renaissance, a rebirth that started in the 14th century, came about
to overcome the long period of excessive dogmatism. In Renaissance,
autonomy and freedom of investigation were awakened. The discovery of
the New World and the invention of printing press permitted the
propagation of new ideas. The Religious Reformation resulted in the
withdrawal of religious leaders from the authority of the Church.

Accepting Aristotle’s theory of being good in political society, law is

something that is presented by reason not by revelation. Natural, moral
law world exists even if there is no God.

CHAPTER III
 HISTORICAL SCHOOL

SAVIGNY, OF THE VOCATION OF OUR AGE FOR

LEGISLATION AND JURISPRUDENCE

ORIGIN OF POSITIVE LAW

The law will be found to have already particular faculties and tendencies
of an individual people, inseparably united in nature, and only wearing
the semblance of distinct attributes to our view. That which binds them
into one whole is the common conviction of the people, the kindred
consciousness of an inward necessity.

For law, as for language, there is no moment of absolute rest; it is

subject to the same movement and development as every other popular
tendency; and this very development remains under the same law of
inward necessity, as in its earliest stages. Law grows with growth, and
strengthens with the strength of the people, and finally dies away as the
nation loses its nationality.

With progress of civilization, national tendencies become more and more

distinct… law perfects its language, takes a scientific direction, and as
formerly it existed in the consciousness of the community, it now
devolves upon the jurists, who thus, in this respect, represent the
community.

LAWS AND LAW BOOKS

Requisites of a really good code:

Young nations, it is true, have the clearest perception of their law, but
their codes are defective in language and logical skill, and they generally
incapable of expressing what is best, so that they frequently produce no
individual image...

COMMENTS BY PATON ON SAVIGNY

In opposition to the pure science of law, the historical school considered

law in direct relationship to the life of the community and thus laid the
foundation on which the modern sociological school has built.

How did law came to be? Law evolved, as did language, by a slow
process and, and just as language is a peculiar product of a nation’s
genius, so is the law. The source of the law is not the command of the
sovereign, not even the habits of the community, but the instinctive
sense of right possessed by every race.

Such is the approach of the historical school, and it naturally led to a

distrust of any deliberate attempt to reform the law. Legislation can
succeed only if it is in harmony with the internal convictions of the race
to which it is addressed.

The contribution of the historical school to the problem of the boundaries

of jurisprudence is that law cannot be understood without an
appreciation of the social milieu in which it has developed. The slow
evolution of law was stressed and its intimate connection with the
particular characteristics of a people.

But in Savigny’s particular presentation there were exaggerations of

which the historical method must be freed if it is to play its true part:

1. Some customs are not based on an instinctive sense of right in the

community as a whole but on the interests of a strong minority,
e,g, slavery.
2. While some rules may devlop almost unconsciously, others are the
result of conscious effort. Law has been used to plan the future
deliberately and not merely to express and order the results of past
growth.
3. The creative work of the judge and jurist was treated too lightly.
The life of a people may supply the rough material, but the judge
must hew the block and make precise the form of law.
4. Imitation plays a greater part than the historical school would
admit.
5. Savigny encouraged what Pound has termed as “juristic
pessimism”- legislation must accord with the instinctive sense of
right or it was doomed to failure. Hence conscious law reform was
to be discouraged.

CHAPTER IV
SEMINAL CONCEPTS (Philosophical Approach)
 THE REPUBLIC
By Plato

CLASSICAL NATURAL LAW

According to Plato, when judgment of society takes the form of a public

decision of the state, it has the name law.

According to Socrates, public opinion is true opinion, and true opinion

is discovery of reality. He therefore concludes that law seeks to be the
discovery of reality, or more precisely, it is the true reality with respect to
the administration of the state.

Law may not always achieve its ideal of discovering true reality, still,
Socrates adds, no society believes that that just can really be unjust.
Whoever fails to reach reality, fails it find the law. Those who know
always accept the same views; they will not write differently at different
times on different matters. If we see some persons anywhere doing this,
we can say that they have no knowledge; and if they are mistaken in
what they describe as law, then that law is mere appearance and ought
not be accepted to be asserting a distinction between principles and
rules.

Plato offers another definition of law as the opportionment of reason.

Reason is apprehension of reality. So what did Plato mean by reality?

Plato once tentatively defined reality as power, by which he meant that

anything has real existence if it has inherent in it the power of being
affected or of affecting others, no matter how small.

Plato asserted that law was the discovery of true reality, appearing to
mean that the moral value of law increases as it approximates the ideal
law which exists in the world is reality.

Plato puts forward the theory that law is an instrument of social control
and thus suggests the problem of the end of law. He held that the end of
law was to produce men who were “completely good”. He therefore
rejected laws that did not incline to the end, asserting that a bad law is a
no law.

Was Plato hostile to law? Plato of the Republic preferred the adaptable
intelligence of the all-wise autocrat to the impersonality of the rule of
law. Heknew well the simple truth, as the trial of Socrates had shown
him, that the debating method of the courtroom, as distinguish from
cross-examination, was perhaps the least likely to lead to the discovery
of truth.

However, in the Laws and Statesman, Plato realized that on this earth
benevolent dictatorship was a counsel of perfection and that he would
better propose a solution which had a possibility of realization: society
should fall back upon law as second-best. He asserted that fixed laws
are to be preferred to the personal administration of the unscientific
ruler which is the type society usually receives.

For Plato, there was not a man among us whose natural equipment
enabled him both to see what was good for men as members of the
community, and on seeing it, always to be both able and willing to act for
the best. As Acton puts it, “all power corrupts and absolute power
corrupts absolutely”.

Law the generality of it could not always do justice to particular cases.

The State for Plato is a man on large scale. It is a whole form of various
individuals and solidly built, as body is formed of several organs, which
together make its life possible. Both in the individual and in the State,
there must reign that harmony which is obtained through virtue.
Justice is the virtue par excellence, insofar as it consists in a
harmonic relation between the various parts of a whole.

Three parts or faculties exist in the soul of the individual:

1. Reason which dominates
2. Courage which acts
3. sense which obeys

Similarly, in the State three classes are distinguished:

1. The wise to dominate
2. Warriors to depend the social organisms
3. Artisans and farmers who must feed it.

The cause of participation in and submission of the individual to the

State is the lack of autarchy, the imperfection of the individual, his
insufficient by himself.

For Plato, it is only the State which is a perfect being and sufficient unto
itself, and which absorbs and dominates all. The State, therefore,
dominates human activity in all its manifestations. Upon its rest the
duty to promote good in its every form. The power of the State is
limitless. To render stronger and closer-knit the political organization,
Plato suppresses social entities which are intermediate between the
individual and the State. By Plato, at any rate, the personality of man is
not adequately recognized.

These briefly are the principal concepts formulated by Plato in the

Dialogue, Republic. The Dialogue Laws, composed later, when Plato was
seventy, has character different preceding one, because it does not trace
out a pure ideal, but considers instead historical reality, and there
appear often an admirable sense of practical experience.

In the Dialogue Laws, Plato shows a greater respect for individual

personality, always, however, that of free men only. Family and property
are conserved, no longer sacrificed to the sort of Statism, as in Republic.
The authority of the State however remains nevertheless very great and
overpowering.

Plato criticizes both monarchy and democracy, and proposes a sort of

synthesis, a mixed government. Just like in Sparta, aside from two
kings, there were the Senate and the Ephors.

COMMENTS ON PLATO BY CAIRNS, THE REPUBLIC

How much Plato owed to his predecessors?

From Solon: Happiness of the state depended upon the faithful

observance of sound laws, and that it was the duty of the good citizen to
see that such laws were made.

From Herodutos: Law is the master.

From Pindar: Law is the lord of all.

ARISTOTLE’S POLITICS
Classical Natural Law

In the Platonic Minos, his definitions of law are partial. They are always
relative to the problem before him, and the aspect of law which they
emphasize constantly shifts in order to permit different consequences to
be drawn.
In the Rhetoric to Alexander, it is pointed out that in a democracy the
final appeal is to reason. A self-governing community is directed along
the best path by its public law, and so as king, as the embodied of
reason, guides along the path of their advantage those who are subject to
this rule.

In a clumsy attempt to bring the two ideas together, law then is defined
as the common consent of the community, regulating action of every
kind.

And later, in the same treatise, law is defined as the common agreement
of the state enjoining in writing how men are to act in various matters.

Aristotle agreed with Plato that legislation should teach virtue.

Goodness, in men, he thought, could be secured if their lives were
regulated by a certain intelligence, and by a right system, invested with
adequate sanctions. He therefore suggests that, in a general sense, the
la itself is a kind of contract, so that whoever disregards or repudiates a
contract is repudiating the law itself. Aristotle however said that law was
much more than a contract. He pointed out that if the state did not pay
attention to virtue, the community became merely an alliance.

Aristotle developed a distinction between “constitution” and “laws”:

Constitution – the organization of offices in a state, and determines what

is to be the governing body, and what is the end of each community.

Laws – are the rules according to which the magistrates should

administer the state, and proceed the offenders.

To the extent his works have survived, it is clear that Aristotle did not
reach any final definition of law. He saw the inherent complexity of legal
phenomena, and he found no single description of it could embrace its
manifold aspects.

• Aristotle thought of law as a rule of conduct for the individual

• Stressed the ideal reason, the doctrine that legal precepts should
have some basis in intelligibility and not be the mere expression of
arbitrariness, force, or custom
• Presented law as a contract
• Distinguished law from constitution and defined as the rules in
accordance with which court determine cases
• Pointed out law as a form of order.
Law itself, like everything in the Aristotleian system has its end and to
Aristotle it was very clear that its task was to make men good. And to
Aristotle, the highest good is happiness or well-being.

Aristotle defined happiness as an exercise of the powers of life in

accordance with the virtue throughout the whole life-time. Happiness
takes its origin in virtue, it issues in pleasure, and material good-fortune
is its ordinary equipment.

Aristotle’s definitions satisfy the Platonic conditions for a happy life, but
as a juristic formula it has several defects:
• The tasks of law can no more can be caught within the net of a
single formula than its numerous and contradictory aspects can be
confined within the limits of one definition.
• The idea of the end of law is that it breaks down as it is put into
practice.

Aristotle held that the law has no power to command obedience except of
that habit.

Education also assists in making obedience to law second nature to the

citizens.

In the doctrine of the categories, conduct comes under the heading of

Quality. Virtue is a Quality and Aristotle assumes that the category has
four divisions: habits, or tendencies to do a thing; capacities for doing a
thing; feelings, passions and emotions prompting us to do a thing; and
external form or shape.

Habituation is the only method of acquiring that settled tendency to do

acts of a certain kind.

THEORY OF LEGISLATION

Aristotle’s normative view of the law is clearly apparent in his theory of

legislation. That law prescribes certain conduct: that conduct of a brave
man; that of a template man; that of a gentleman, and so with all the
other virtues and vices, prescribing some actions and prohibiting others.

Plato held that legislation should be so framed that it could be

incorporated in a manual of instruction for the young.

Lagislation is a branch of political science.

Collections of laws and constitutions may be serviceable to students
capable of studying them critically and judging what measures are
valuable or the reverse, and what kind of institutions are suited to what
national characteristics. But those who examine such compilation
without possessing a trained faculty cannot be capable of judging them
correctly, unless, indeed, by accident, though they may very likely
sharpen their political intelligence.

Aristotle laid down a series of principles to control and guide the

legislative process:

• The legislators he believed were from middle class--- ought to have

his eyes directed to two points – the people and the country.

• Legislator’s state must have a political life, a life of intercourse

with other states

• A legislator must make sure that the nation’s arms should be

such as enable it to meet its foes in its on territory.

• The legislator must pay attention to the foreign relations of the

state

• The legislator should not make conquest the aim of the state.

Cicero’s principal thesis is that Law is not a product of choice, but is

given by nature. According to him, Law is noted based on arbitrary
opinion, but there is a natural, immutable and necessary “just” as is
proved by testimony taken from the very conscience of man.

Besides this jus naturale, there exists jus gentium observed by all people
which serves as a basis for their mutual relations because it based upon
their common needs. And there is jus civile, that which is in force for
each people in particular.

There is therefore a law of nature, immutable, not artificially made but

already existing, inborn. It is a uniform law, not subject to change by
the action of men.

THE ROMAN JURISTS

CICERO – DE LEGIBUS
Law is the highest reason implanted in nature. It is the mind and reason
and mind of an intelligent man, the standard by which Justice and
Injustice are measured.

Reason when perfected is rightly called wisdom.

Those creatures who have received the gift of reason from Nature have
also received right reasons, and therefore they have also received the gift
of Law, which is right reason applied to command and prohibition. And
if they have received Law, they have received Justice also.

COMMENTS ON CICERO BY CAIRNS

Cicero maintains that nothing can be nobler than the law of the state.
Law is the bond of the society, and the state may be defined as an
association or partnership in law. If a state has no law, it cannot be
considered a state at all.

KANT’S THE PHILOSOPHY OF LAW

PROLEGOMENA
LAW AND ETHICS
General Introduction to the Metaphysics of Morals

Laws of morality is not drawn from observation of oneself or of our

animal nature, nor from perception of the course of the world in regard
to what happens, or how men act. But Reason commands how we ought
to act, even although no example of such action were to be found; nor
does Reason give any regard to the Advantage which may accrue to us by
acting , and which Experience could alone actually show.

GENERAL DIVISIONS OF THE METAPHYSICS OF MORAL

GENERAL PRELIMINARY CONCEPTIONS DEFINED

Nature and Positive Laws – Obligatory Laws for which an external

Legislation is possible, are called generally External Laws. Those
External Laws, the obligatories of which can be recognized by Reason a
priori without an external Legislation, are called Natural Laws. Those
Laws, again, which are not obligatory without actual External
Legislation, are called Positive Laws.

Maxims – The Principle which makes a certain action a Duty, is a

Practical Law. The Rule of the Agent or Actor, which he forms as a
Principle for himself on subjective grounds, is called his Maxim.

The Categorical Imperative – The Categorical Imperative only expresses

generally what constitutes Obligation. It may be rendered by the
following formula: “ Act according to a Maxim which can be adopted at
the same time as a Universal Law”.

INTRODUCTION TO THE SCIENCE OF RIGHT

General Definitions and Divisions

A. WHAT THE SCIENCE OF RIGHT IS?

The Science of Right has for its object the Principles of all the Laws
which it is possible to promulgate by external legislation…

B. WHAT IS RIGHT?

All this may remain entirely hidden even from the practical Jurist until
he abandon his empirical principles for a time, and search in the pure
Reason for the sources of such judgments, in order to lay a real
foundation for actual positive Legislation.

The conception of Right:

1. External and practical relation of one Person to another, in so far
as they can have influence upon each other, immediately or
immediately, by their Actions as facts.
2. The relation of his free action to the freedom of action of the other.
3. In this reciprocal relation of voluntary actions, conception of Right
does not take into consideration the matter the act of Will in so far
as the end which any one may have in view in willing it, is
concerned.

Right, therefore, comprehends the whole of the conditions under which

the voluntary actions of any one Person can be harmonized in reality
with the voluntary actions of every other Person, according to a universal
Law of Freedom.

C. UNIVERSAL PRINCIPLE OF RIGHT

“Every Action is right which in itself, or in the maxim on which it

proceeds, is such that
it can co-exist along with the Freedom of the Will of each and all in
action, according to a universal Law".

Or it can be expressed as “Act externally in such manner that the free

exercise of thy Will may be able to co-exist with the Freedom of all
others, according to universal Law.”

D. RIGHT IS CONJOINED WITH THE TITLE OR AUTHORITY TO

COMPEL

Everything that is wrong is a hindrance of the freedom, according to

universal Laws; and Compulsion or Constraint of any kind is a
hindrance or resistance made to Freedom.

COMMENTS BY PATON ON KANT

To define law we must distinguish between form and matter. Form is

being the complex
of universally valid principles presupposed in any legal judgment; Matter
is the changing world of social experience which those principles
construe legally.

Rodulf Stammler regards Philosophy of Law as the “theory of those

propositions about law which have universal validity”.

According to Stammler, law belongs to the realm which chooses end and
determines Mean; that law is the notion of purpose. It exists to bind
together the community. Since by definition law exists to harmonize the
purposes of individuals, law itself strives
towards justice. The fundamental basis of law and of just law are,
therefore, the same.

Law exists to coordinate, it can operate only by unifying all possible acts
of men.
These principles of just law are based on the doctrines of respect and of
participation.

Points of Stammler’s Theory on Law:

1. Law can exist only if actual society exists.
2. The realm of law and the natural world are distinct.
3. Most systems do assume that law is complete and exclusive
system in itself.

HEGEL’S THE PHILOSOPHY OF RIGHT

Hegel believed that philosophy possessed a logic or method of its own,

one that was peculiar to itself, and which constituted philosophy’s own
kind of scientific proof. This was the dialectic method, which proceeds
through the development of concept. It is the process by which from the
first member of the triad, say Being, a second element, Nothing, is
deduced. This is possible because Being in its completely abstract form,
devoid of all qualities is, Nothing. But we are able to at this point to
perceive the presence of the member of the triad, Becoming. In fact we
are forced to take this step according to Hegel because unless we do so,
we are asserting the paradoxical proposition that Being and Nothing are
the same – that a thing is both is in and is not. We must therefore
search for what Hegel calls the unity of opposites. In the present case it
is found in Becoming; a thing both is and is not when it becomes.

Rational is actual and actual is rational.

So far as jurisprudence is concerned with the truth is nothing new.

Philosphy’s problem is to isolate those truths and to exhibit their logical
necessity.

The laws of nature are given and their measure is outside man.

Positive law, on the contrary is posited, it originates with man.

We cannot know the truth through the method of either intuitionalism or

subjectivism. Philosophy’s concern is with the rational. This means that
it is an effort to apprehend the actual.
 CHAPTER V
AUSTIN, THE PROVINCE OF JURISPRUDENCE
DETERMINED

Laws proper, or properly so called are commands; laws which are not
commands are laws improper or properly so called. Laws properly so
called, with laws improper by so called, may be aptly divided into the
four following kinds:
1. The divine laws, or the laws of God: that is to say, the laws which are
set by God to his human creatures.
2. Positive Laws: that is to say, laws which are simply and strictly so
called, and which form the appropriate matter of general and
particular jurisprudence.
3. Positive morality, rules of positive morality, or positive moral rules.
4. Laws metaphorical or figurative, or merely metaphorical or figurative.

• The divine laws and positive laws are laws properly so called.
• Of positive moral rules, some are laws properly so called, but other
laws are improper. Positive moral rules may be styled laws or rules
set or imposed by opinion: for they are merely opinions or sentiments
held or felt by men in regard to human conduct.
• A law metaphorical or figurative and a law imperative and proper are
allied by analogy merely; and the analogy by which they are allied is
slender or remote.

Consequently, positive laws (the appropriate matter of jurisprudence) are

related in the way of resemblance, or by close or remote analogies to the
following objects: the laws of God; positive morality which are set by
opinion; and to laws metaphorical or laws merely metaphorical.

In the six lectures, Austin distinguished positive laws from the

enumerated other kinds, and considered as a whole, “the province of
jurisprudence determined.” It is accomplished through the following:
1. He determined the essence or the nature which is common to all laws
that are laws properly so called. And,
2. Determined the respective characters of the four several kinds into
which laws may be aptly divided.

Having suggested the principal purpose, Austin indicated the following

topic:
1. He determined the essence or nature which is common to all laws
that laws properly so called.

Determining the essence or nature of a law imperative and proper,

Austin determined implicitly the essence of nature of a command. By
commands, Austin implied: “sanction” or “enforcement of obedience”;
“duty” or “obligation”; “superior and inferior.”

2. He determined the characters or marks by which the laws of God are

distinguished from other laws.

Austin divided the laws, and other commands of the Deity, into two
kinds:
1. The revealed or express
2. Unrevealed or tacit

According to Austin, the divine law is the measure or test of positive law
and morality: Or law and morality, in so far as they are what they ought
to be, conform, or are not repugnant, to the law of God.

Since, then, the nature of the index to the tacit command of the Deity is
an all-important object of the science of legislation, it is a fit and
important object of the kindred science of jurisprudence.

Austin distributed laws or rules into two classes:

1. Laws properly so called, with such improper laws as are closely
analogous to the proper;
2. Improper laws which are remotely analogous to the proper and
which, therefore, laws metaphorical or figurative.

Laws proper with much improper laws as are closely analogous to the
proper are under three classes:
1. Properly so called the laws of God
2. Properly so called the positive laws
3. Properly so called, with the laws improperly so called, positive
morality or positive moral rules.

Positive moral rules distinguishing characters:

1. Laws or rules set by men to men as are not armed with legal
sanctions;
2. Laws or rules as are not positive laws, or are not appropriate matter
for general or particular jurisprudence.

Determining the characters of positive laws, determines implicitly the

notion of sovereignty, with the implied or correlative notion of
independent political society. Every positive law or every law simply and
strictly so called is set by a sovereign person, or a sovereign body of
persons, to a member or members of the independent political society
wherein that person or body is sovereign supreme.

A law, in the most general and comprehensive acceptation in which the

term, in its literal meaning, is employed, may be said to be a rule laid
down for the guidance of an intelligent being by an intelligent being
having power over him.

Without extension by metaphor or analogy, the term law embraces the

following objects:
1. Laws set by God to his human creatures; and
2. Laws set by men to men.

The whole or a portion of the laws set by God to men is frequently styled
the law of nature, or natural law. But rejecting the appelation Law of
Nature as ambiguous and misleading, Austin named those laws or rules
the Divine Law or the law of God.

Of the laws or rules set by men to men, some are established by

superiors, sovereign and subject: by person exercising supreme and
subordinate government, in independent nations, or independent
political societies.

As contradistinguished to natural law, or to the law of nature , the

aggregate of the rules, established by political superiors, is frequently
styled positive law.

Closely analogous to human laws of this second class, are a set of

objects frequently but improperly termed laws, being rules set and
enforced by mere opinions or sentiment held or felt by an indeterminate
body of men in regard to human conduct. Austin denoted them by the
term positive morality. The name morality severs them from positive law,
while the epithet positive disjoins them from the law of God.

There are numerous applications of the term law, which rest upon a
slender analogy and are merely metaphorical or figurative. Such is the
case when we talk of laws observed by the lower animals; of laws
regulating the growth or decay of vegetables… etc. For where intelligence
is not, or where it is too bounded to take the name of reason, there is not
the will which law can work on, or which duty can incite or restrain.

Every law or rule (taken with the largest signification which can be given
to the term properly) is a command.
A command is distinguished from other significations of desire by
purpose of the party commanding to inflict an evil or pain in case the
desire be disregarded. If you cannot or will not harm me in case I comply
not with your wish, the expression of your wish is not a command,
although you utter your wish in imperative phrase.

Being liable to evil from if I comply not with you’re a wish which you
signify, I am bound or obliged by your command, or I lie under a duty to
obey it.

Command and duty are, therefore correlative terms: the meaning

denoted by each being implied or supposed by the other.

The evil which will probably be incurred in case a command be disobeyed

or in case a duty be broken is frequently called sanction, or an
enforcement of obedience.

By some celebrated writers (by Locke, bentham, and Paley), the term
sanction, or enforcement of obedience, is applied to conditional good as
well as to conditional evil: to reward as well as to conditional
punishment. However, Austin disagreed with this, according to him, if a
law hold out a reward as an inducement to do some act, an eventual
right is conferred, and not an obligation imposed, upon those who shall
act accordingly.

From what has been premised, the ideas or notions comprehended by

the term command are:
1. A wish or desire conceived by a rational being, that another rational
being shall do or forbear.
2. An evil to proceed from the former, and incurred by the latter, in case
the latter comply not with the wish.
3. An expression or intimation of the wish by words or other signs.

It also appears then that command, duty, and sanction are inseparably
connected terms.

Commands are of two species: laws or rules.

Most of the laws which are established by political superiors, or most of

the laws which are simply and strictly so called, oblige generally the
members of the political community, or oblige generally persons of a
class. To frame a system of duties for every individual of the community,
were simply impossible.
Superiority is defined by Austin as signifying might: the power of affecting
others with evil or pain, and of forcing them, through fear of that evil, to
fashion their conduct to one’s wishes.

The might or superiority of God, is simple and absolute. But in all or

most cases of human superiority, the relation of superior and inferior,
and the relation of inferior and superior are reciprocal. The party who is
the superior as viewed from one aspect, is the inferior as viewed from
another.

There are other objects improperly termed laws (not being command)
which yet may properly be included within the province of jurisprudence:

1. Acts on the part of legislatures to explain positive law – working no

change in the actual duties of the governed, but simply declaring
what those duties are.
2. Laws to repeal laws, and to release from existing duties. In so far as
they release from duties imposed by existing laws, they are not
commands, but revocations of commands.
3. Imperfect laws, or laws of imperfect obligation. A law which wants a
sanction, and which, therefore, is not binding.

COMMENTS BY PATON ON JOHN AUSTIN’S IMPERATIVE

SCHOOL

Paton discussed Austin’s views under three heads: (a) the basis of
jurisprudence, (b) the method of jurisprudence, (c) the relation of laws
and ethics.

THE BASIS OF JURISPRUDENCE

Austin’s broad approach to law was to regard it as a command of the

sovereign. Positive laws is a general rule of conduct laid down by a
political superior to a political inferior. The notion of command requires
that there must be a determinate person to issue the command, and that
there is an implied threat of a sanction if the command is not obeyed.
Austin’s aim was to separate positive law sharply from such social rules
as those custom and morality. The emphasis on command achieved this
end, for the rules of etiquette are not laid down by a definite person.
But, if the law of each country is based on commands of the sovereign
person (or body of persons) in that country, on what is jurisprudence to
be based? As each sovereign may command what he wishes, will not
there be the utmost diversity between the legal systems? Is there any
element of identity on which general science can be based?

Austin did not deal clearly on this problem. He assumed, without any
real investigation, that certain principles, notions, and distinctions were
common to all systems of law. Some notions were universal because it
was impossible coherently to construct a legal system without using
them, e.g. the terms duty, right, injury, punishment, and redress.

Analysis reveals Austin’s foundation to be rather unstable:

Firstly, it is clear that there are no universal rules of law.

Secondly, there are few concepts which are common to all legal systems,
and if we confine our analysis to such as we think are universal, we run
to dangers: 1. If further research shows that there are no concepts
which are common to all systems, then there is no basis for general
jurisprudence at all; 2. Even if a few notions are proved to be universal,
they form somewhat narrow basis for a science of law.

The solution of the problem is that, although there are few rules of law
that are universal, yet there may be universal principles of
jurisprudence. The assumption of jurisprudence is that in all
communities which reach a certain stage of development there springs
up a social machinery which we call law. Jurisprudence is not primarily
interested in cataloguing uniformities, nor in discovering rules which all
nations accept. Its task is to study the nature of law, the nature of legal
institutions, the development of both law and legal institutions and their
relationship to society. Jurisprudence is founded on the attempt, not to
find universal principles of law, but to construct a science which will
explain the relationship between law, its concepts, and the life of society.
Austin did not analyse this problem acutely.

THE METHOD OF JURISPRUDENCE

Austin believed that the chief tool of jurisprudence was analysis. Today,
however, it is increasingly recognized that, useful as analysis may be, it
will not suffice to answer all the problems of jurisprudence. Some of the
imperative school seem to proceed on the tacit assumption that all legal
problems can be answered by analysis of the rules that exist and by
deductions from them. Exaggerated positivism ignores the fact that law
develops not by logic alone, but by drawing new values from the life of
the community and by gradually reshaping the rules so that they accord
with the standards of today. We cannot always convict a dissenting
minority in the House of Lords of an error in logic – what is frequently
decisive is the judge’s view of the purpose that law should achieve.

What is here st6ressed is only that the analytic system based on Austin’s
teaching did not make sufficient allowance for the creative element in law
and tended to magnify the static character of legal rules.

LAW AND ETHICS

Austin distinguished jurisprudence, the science of the law from the

science of legislation which he based on the principle of utility. But we
can see today that even the most positive member of the analytical
school did not succeed in separating the law that is from ideal elements.
Analysts treated law as a coherent system based on certain fundamental
principles from which particular rules may be deduced. Naturally, no
system of law is perfectly self-consistent, but any rule that could not be
fitted into the analyst’s framework was dubbed an historical accident or
logical anomaly which (it was predicted) would soon disappear. But the
analysts assumed that logical self consistency was the sole end of the
law. Clearly, law does not exist for the sake of consistency, for many a
rule that is theoritically anomalous is based on sound views of public
policy.

Thus, criticism of the analytical school emphasizes two very significant

truths for jurisprudence:
1. The law that is does not exist as a perfectly proportioned body of rules
deduced from a few leading principles. The social pressures of the past
have led to many convenient anomalies being adopted. Hence any
attempt to reconcile the rules on logical ground easily develops into a
study not of the law that is but of the law that should be, if logic were to
prevail.
2. It is extraordinarily difficult for any school to resist setting up an ideal
which can be made the basis for constructive criticism of the law. The
influence of their work was such, however, that their insistence that
lawyers should be concerned with law that is, combined with the dogma
that judges do not make law, led to a wasteful argument about whether
or nor judges do make law when ion fact judges do make law.

The analytical positivists still affirm the Austinian belief that:

• Law can and ought to be made the subject of study separately from
morals;
 • Can be seen as a system of rules with a logic of its own capable of
more satisfactory elucidation;
• The methods of linguistic analysis pursued by the philosophers can
be employed in jurisprudence to clear up many puzzles which have
troubled legal theorists, and to produce clearer thinking for lawyers
generally.

KELSEN’s PURE THEORY OF LAW

LAW AND NATURE

LAW AS A PART OF MORALS

What is the relationship of law and morals? This question has two
meanings: One, what is the relationship between the two? The other,
what ought it be?

The first question is sometimes answered by saying that law by its very
nature is moral, which means that the behavior commanded or
prohibited by legal norms is also commanded or prohibited by the moral
norms. Furthermore, that if a social order commands a behavior
prohibited by morals or prohibits a behavior commanded by morals, this
order is not law, because it is not just.

The question is also answered, however, by stating that the law may, but
need not be moral, although the postulate is admitted that the law ought
to be moral, which means: just.

If the question of the relationship between the law and morals is

understood as a question concerning the content of law and not as a
question concerning its form; if it is said that law according to its nature
has a moral content or constitutes a moral value; then one asserts by
these statements that law is valid within the sphere of morals, that the
legal order is part of the moral order, that law is moral and therefore by
its nature just.

RELATIVITY OF MORAL VALUE

But if an absolute value in general and an absolute moral value in

particular is rejected from the point of view of scientific cognition,
because an absolute value can be assumed only on the basis of religious
faith in the absolute and transcendent authority of a deity; if one grants
that under different circumstances different behavior may be considered
good or evil, just or unjust, and nothing has to be considered good or
evil, just or unjust, under all possible circumstances; if in short, one
acknowledges that moral values are only relative: then, the assertion
that social norms must have a moral content, must be just in order to
qualify as a law, can only mean that these norms must contain
something common to all possible moral systems, as systems of justice.

In view of extraordinary heterogeneity, however, no element common to

the contents of the various moral orders is detectable.

All moral orders have only one thing in common: that they are social
norms, that is norms, norms that order a certain behavior of men –
directly or indirectly – toward other men. All possible moral systems
have in common their form, the “ought”: they prescribe something, they
have normative character. Morally good is that which conforms with the
social norm that prescribes a certain human behavior; morally evil that
which is opposed to such a norm. The relative moral value is established
by a social norm that men ought to behave in a certain way.

Under these presuppositions the statement “law is moral by nature” does

not mean that law has a certain content, but that it is norm – namely a
social norm that men ought to behave in a certain way. Then, in these
relative sense, every law is moral: every law constitutes a – relative –
moral value. And this means: The question about the relationship
between law and morals is not a question about the content of the law,
but one about its form.

The law constitutes a value precisely by the fact that it is a norm; it

constitutes the legal value, which is a (relative) moral value; which
merely means that the law is a norm.

SEPARATION OF LEGAL AND MORAL ORDERS

If it is assumed that law is moral by nature, then, presupposing an

absolute moral value, it is meaningless to demand that the law ought to
be moral. Such a postulate is meaningful only if the legal norms does
not depend on their conformity with the moral order.

It is paramount and cannot be emphasized enough to understand that

not only one moral order exists, but many different and even conflicting
ones; and that above all, the judgement of what is morally good or evil,
morally justifiable or unjustifiable, is subject to continuous change, as is
the law, and that a legal order that at the time of its validity may have
conformed with the postulates of the moral order then prevalent, may
still be judged to be immoral today.

The thesis rejected by Pure Theory of Law:

• That law by its nature must be moral and that immoral social order is
not a legal order, presupposes an absolute moral order, that is, one
valid at all times and places. Otherwise it would not be possible to
evaluate a positive social order by a fixed standard of right and wrong,
independent of time and place.
• In its actual application by the science of law prevailing in a certain
legal community, this thesis amounts to an uncritical justification of
the national coercive order that constitutes this community. The
dubious standard of an absolute morality is applied only to the
coercive order of other nations. From the point of view of science of
law it must be rejected because it is not the task of this science to
justify the law by absolute or relative morals; but to know and
describe it.

COMMENTS BY PATON ON THE PURE SCIENCE OF LAW

Kelsen wishes to free the law from the metaphysical mist with which it
has been covered at all times by the speculations on justice or by the
doctrine of ius naturae. He desires to create a pure science of law,
stripped of all irrelevant material, and to separate jurisprudence from the
social sciences as rigorously as did as the analysts. So the jurists, if he
is to be scientific, must study the legal rules abstracted from all social
conditions. Kelsen refuses to define law as a command, for that
introduces subjective and political considerations and he wishes his
science to be truly objective.

Kelsen wishes to separate the realm of jurisprudence from the natural

sciences. The latter deals with cause and effect. Law on the other hand
does not attempt to describe but rather to prescribe certain rules, to lay
down standards of action which men ought to follow.

For Kelsen, we cannot adopt the easy method of defining law:

• The modern tendency to regulate so many of the affairs of the private
citizen means that the sphere of law is daily increasing.
• Justice is not a satisfactory concept for a science of pure law, as
‘justice is irrational ideal’ – that is, it cannot be clearly defined by
reason. Justice for many rules may be unjust, but they do not
therefore cease to be law.
The law does not state what actually does happen, but lays down what
ought to happen; yet if the legal order is to be effective, it must secure a
certain measure of acceptance.

The sphere of jurisprudence, then, is a study of the nature of this

hierarchy of norms, validity of each norm depending on its being laid
down in accordance with a superior norm until we reach the final norm
which imposes an obligation on a particular individual.

It is difficult to appreciate the significance of Kelsen’s work until the

application of theory is understood, but for the present we are concerned
only with the bearing of his theory on the problem of the boundaries of
jurisprudence. His claim that he has created an impartial and universal
science is justified, but we are not left with the dry bones of the law
deprived of the flesh and blood which give them life. Kelsen is not alone
in his disgust at ‘politics masquerading as jurisprudence’.

Kelsen is correct in showing that law is a weapon that may be used to

effect many end.

Kelsen’s work is also valuable in its emphasis that in executing the

norms of law the judge has much discretion – it is impossible for any
general rule to provide for all contingencies, and the general rules must
be made precise by those who have the duty of applying them. But, in
order to maintain the air of impartiality, Kelsen regards as outside the
scope of jurisprudence all discussion of natural law, and all the
examination of the sources whence the judge draws his rules when there
is no authority in point. This leaves the science of law very ‘pure’, but
deprives it of all interesting contact with life itself. To exclude the whole
of sociology and of ethics leaves jurisprudence but a mental exercise in
abstract notions.

Kelsen’s methods does not even even give us a true picture of law, for
jurisprudence must go beyond the formal hierarchy of norms to study
the social forces that create law. The doctrine of natural law has
certainly been abused, but is jurisprudence therefore to ignore the whole
question of ethics?

The pure science of law is narrow one, and it must be complemented by

other and broader approaches.
 CHAPTER VI
THE FUNCTIONAL SCHOOL

THE SCOPE AND PURPOSE OF SOCIOLOGICAL JURISPRUDENCE

By Roscoe Pound

SCHOOLS OF JURISTS AND METHODS OF JURISPRUDENCE

It has been possible to divide the jurists into three principal groups:

1. Philosophical School
1.1. 18th Century Law-of-Nature School;
1.2. Metaphysical School – during the first half of 19th century; and,
1.3. Social-Philosophical School – the Neo-Hegelians seems to have
the most fruitful program
2. Historical School
2.1. German Historical School; and
2.2. English Historical School
3. Analytical School

Instead of a further variation of one of the old creeds, a wholly new creed
is framing, may be styled the: Sociological School.

1. ANALYTICAL JURISPRUDENCE

The analytical jurists pursues a comparative study of the purposes,

methods and ideas common to developed systems of law by analysis of
such systems and of their doctrines and institutions in their matured
forms.

• “Putting differences” and “taking of diversities”

Hence, it is appropriate to a developed system only.

In its crudest form, this is expressed in Austin’s dogma that a law is a

command.

The kernel of it is that law “is a product of conscious and increasingly

determinate human will.”
The Analytical School characteristics may be said to be:

1. They consider developed system only;

2. They regard the law as made consciously by lawgivers, legislative or
judicial;
3. They see chiefly the force and constraint behind legal orders;
4. For them the typical law is a statute;
5. Their philosophical views are usually utilitarian or teleological.

2. HISTORICAL JURISPRUDENCE

In opposition to the analytical jurist, the historical jurist and

philosophical jurist agree that law is found, not made.

They deny that law is a product of a conscious or determinate human

will. They hold that the living organs of law are doctrinal writing and
judicial decision, whereby the life of a people, expressed in the first
instance in its traditional rules of law, makes itself felt in a gradual
development by molding those rules to the conditions of the present.

Hence, the historical jurists may be characterized thus:

1. They consider the past rather than the present of the law;
2. They regard the law as something that is not and in the long run
cannot be made consciously;
3. They see chiefly the social pressure behind legal rules;
4. Their type of law is custom;
5. As a rule, their philosophical view have been Hegelian.

3. PHILOSOPHICAL JURISPRUDENCE

The philosophical jurist studies the philosophical and ethical bases of

law, legal systems, and particular doctrines and institutions, and
criticizes them with respect to such bases.

In comparison with the analytical and historical jurists, the philosophical

jurists---

1. Are more apt to consider the ideal future of law than its past or
present;
2. Believe that when law is found, its principles may, and as a matter of
expediency, should be stated definitely and in certain form;
3. Look at the ethical and moral bases of rules rather than at its
sanction;
4. Have no necessary preference for any particular form of law;
5. Hold very diverse philosophical views.

4. RISE OF A SOCIOLOGICAL SCHOOL – THE SOCIAL

PHILOSOPHICAL SCHOOL

The first movement in the new direction was from the then dominant
historical school in Germany.

1. THE POSITIVES – THE MECHANICAL STAGE

Like the historical jurist, the first type of sociologist looked at law in its
evolution, in its successive changes, and sought to relate these changes
to the changes undergone by the society itself.

A later form of what is essentially the same type of juristic sociology is to

be seen in attempt to state all jural experience solely in terms of
economics. The doctrine has been set forth in its most extreme form in
America:

“Law is the resultant of forces which arises from the struggle for
existence among men.”

“The dominant class will shape the law to favor themselves…”

The earlier type of sociological jurist’ service was in twofold:

1. Displacing the individualist starting-point by insisting upon the

importance of the group, of the class, of the “compact plurality”;
2. Compelling us to relate the law more critically to other social
phenomena.

2. THE BIOLOGICAL STAGE

Darwin had made evolution the central idea in scientific thought.

The jurists were attractted by the conception of natural selection: the end
of law is to give free play in an orderly and regulated manner to the
elimination of the unfit, to further selection by a well-ordered social
struggle for existence.
3. THE PSYCHOLOGICAL STAGE

Three influences combined to turn the attention of sociological jurists

towards psychology:

1. Study of group personality and group will, leading to a psychological

movement in legal and political philosophy;
2. The complete change in method in the social sciences which resulted
from Ward’s thesis that “psychic forces are as real as physical forces…”;
and,
3. Tarde’s demonstration of the extent to which imitation is a factor in
development of legal institutions.

4. THE STAGE OF UNIFICATION

At the very end of the last century sociologists were coming to see that no
one of the methods worked out was the whole of sociology. A few years
later, Ward enumerated twelve “leading sociological conceptions or
unitary principles” each of which had been “put forward with large
claims to being in and of itself the science of sociology.”

THE PRESENT STATUS OF SOCIOLOGICAL JURISPRUDENCE

Sociological jurists today insists upon six points:

1. Study of the actual social effects of legal institutions and legal

doctrines;

2. Sociological study in connection with legal study in preparation for

legislation…. But it is not enough to compare the laws themselves. It is
much more important to study their social operation and the effects
which they produce, if any, when put in action;

3. Study of the means of making legal rules effective;

4. A means toward the end last considered is a sociological legal

history;

5. The importance of reasonable and just solutions of individual

causes, too often sacrificed in the immediate past to the attempt to
bring about an impossible degree of certainty;
6. Make effort more effective in achieving the purpose of law.

Comparing sociological jurists with insists of the other schools we may

say:

1. They look more to the working of the law than to its abstract content;
2. They regard law as a social institution which may be improved by
intelligent human effort;
3. They lay stress upon the social purposes which law subserves rather
than upon sanction;
4. They urge that legal precepts are to be regarded as guides to result
which are socially just and less as inflexible molds; and
5. Their philosophical views are very diverse.

COMMENTS BY PATON ON THE FUNCTIONAL SCHOOL

• The fundamental tenet of this school is that when we cannot

understand what a thing is unless we study what it does.

• What attitude should jurisprudence take to the question of the values

that direct the development of law? Kelsen would retain the scientific
method. But Pound considers that they must be analyzed thoroughly
in order to understand legal development. For Pound, law is also a
process of balancing conflicting interests and securing the
satisfaction of the maximum of wants with the minimum of friction.

CHAPTER VII
THE REALIST SCHOOL

THE PATH OF THE LAW

By Oliver Wendel Holmes

When we study law we are not studying a mystery but a well-known

profession. We are studying what we shall want in order to appear
before judges, or to advise people in such a way as to keep them out of
court.

The means of the study are body of reports, of treatise, and of statutes.
A legal duty so called is nothing but a prediction that if a man does or
omits certain things he will be made to suffer in this or that way by
judgment of the court.

If you want to know the law and nothing else, you must look at it as a
bad man, who cares only for the material consequence which such
knowledge enables him to predict, not as a good one, who finds his
reasons for conduct.

Nowhere is the confusion between legal and moral ideas more manifest
that in the law of contract. The duty to keep contract at common law
means a prediction that you must pay damages if you do not keep it. If
you omit a tort, you are liable to pay a compensatory sum.

COMMENTS ON THE REALIST SCHOOL BY PATON

The realists defined law not as a set of logical propositions but in terms
of official action.

Until a court has passed on certain facts, some realists argued, there is
no law in the subject yet in existence, for the opinion of lawyers is only a
guess as to what the courts will decide. Since law is define in terms of
official action (and not of the rules which should guide action), it follows
that any force that will influence the judge in reaching the decision is a
fit subject for jurisprudence.

Law can have a little weight in legal evolution. Society is always

changing, moral judgments are developing, and the law therefore is in a
state of flux.

Realists insisted that to know what a thing is one must see what it does;
that rules of law must be assessed by reference to their consequences.

Perhaps the most immediate and most important influence of American

legal realism was upon legal education. The concentration about the
problems to be solved rather than upon the formal and authoritative
explanations of how they had been, or ought to be, solved, changed the
whole nature of legal education.

Those changes brought decline among law students in their

understanding and appreciation of the internal discipline and coherence
of systems of law viewed as rules and principles.
 COMMENTS BY JEROME FRANK, WHAT COURTS DO IN FACT

How then a judge arrive at his decision? He does so by a “hunch” as to

what is fair and just or wise or expedient.

According to Frank:

1. Specific enforceable decisions in concrete cases are of the essence of

the lawyer’s work;

2. Specific decisions are the result of the judges’ hunches;

3. To predict or bring about decisions, one should know about what

produces judicial hunches;

4. The so-called legal rules and principles are some of many hunch
producers;

5. Whatever may be the stimuli to the making of those hunches, may

loosely describe the judge’s personality;

6. Neither the background stimuli nor the congeries labelled “judge’s

personality” are stated or statable in terms of the conventional legal
rules and principles;

7. The failure to recognize the composite nature of this hunch and the
artificial breaking up of the decisional process into “rules” and “facts”
accounts in part for the delusion of the formalist as the exclusive
value of the “rules.”

8. The formalist errs also in overlooking that circumstance that it is

impossible to predict what cases will be “contested” and the subjective
nature of the “facts” of a “contested” case and the resulting
unchangeability of the judge’s statement of those “facts.”

9. The formalist conveniently neglects the jury.

CHAPTER VIII
THE COMMUNIST THEORY
KARL MARX

Marx’s ideas, particularly the prospect of inevitable liberation of the

working classes from bondage and oppression through revolutionary
action made a strong impression on Russian radicals.

LENIN ON MARX

Marx’s teaching is complete and harmonious, providing men with a

consistent view of the universe, which we cannot be reconciled with any
superstition, any defence of bourgeois oppression.

The three components of Marxism are:

1. The philosophy of Marxism is materialism. Provided the humanity,

1 and especially the working class, with a powerful instrument of
knowledge.

2. Marx devoted all the greater attention to the study of economic order,
having recognized that it is the foundation upon which the political
superstructure is erected, i.e. capitalist society. The doctrine of
surplus value is the cornerstone of the economic theory of Marx.

3. After the overthrow of serfdom, freedom signified a new system of

oppression and exploitation of toilers. Marx answered this with the
doctrine of the class struggle, to enlighten and organize for the
struggle, from the power capable of sweeping away the old and
establishing the new.

CHAPTER IX

THE POLICY SCIENCE SCHOOL LEGAL EDUCATION

AND PUBLIC POLICY: PROFESSIONAL TRAINING IN
THE PUBLIC INTEREST
By Harold D. Lasswell and
Myres S. Mcdougal

The reform of legal education must become more ever more urgent in a
revolutionary world of cumulative crises and increasing violence.
Adequate training must therefore include experiences that aide the
developing lawyer to acquire certain skills of thought:

1. Goal thinking – to promote the major value of democratic society and

to reduce the number of moral mavericks who do not share
democratic preferences;

2. Trend-thinking – this considers the shape of things to come orient

himself correctly in contemporary trends and future probabilities.

3. Scientific-thinking – to build up scientific knowledge.

COMMENTS BY CRISOLITO PASCUAL ON THE POLICY SCIENCE OF

SCHOOL OF JURISPRUDENCE AND ITS THEORY OF THE NATURE
OF LAW

The goal of the law is the creation of a world community conceived in

mutual respect, understanding and rectitude, where the different
representative social values or desirable objects of human desires are
widely and equitably shared. The law becomes meaningful only when
considered as the vehicle or machinery to realize the end in view.

CHAPTER X
NATURAL LAW
ST. THOMAS AQUINAS, THE SUMMA THEOLOGICA

Law is a rule and measure of acts, whereby man is induced to act or is

restrained from acting.

The rule and measure of human acts is the reason. Reason has its
power of moving from the will.

Every act of reason and will in us is based on that which is according to

nature for every act of reasoning is based on principles that are known
naturally.

Justice has its source in nature; thence certain things came into custom
by reason of their utility; afterwards these things which emanated from
nature and were approved by custom, were sanctioned by fear and
reverence for the law.

In temporal law there is nothing just and lawful, but what man has
drawn from the eternal law.

First precept of law: “Good is to be done and ensued, and evil is to be

avoided.”

Any point deflecting from the law of nature, it is no longer a law but a
perversion of law.

COMMENTS BY JACQUES MARITAIN ON ST. THOMAS AQUINAS

St. Thomas succeeded in constructing a philosophical and theological

wisdom so elevated in immateriality that it is really free of every
particularization of race or environment. His metaphysical principles
were based upon objective reality.

FOR A REVIVAL OF NATURAL LAW DOCTRINE IN PHILIPPINE

JURISPRUDENCE
By J0rge R. Coquia

There has been a sudden increase of law schools, but a meager few have
ever attempted seriously what legal philosophy they should stress to
students. One of the causes is the confusion that there have been many
different approaches to what proper end of law is.

There is no denying of the fact that in each attempt to enunciate a new

philosophy of law, human experience has led to insoluble difficulties and
to inescapable inadequacies. The ideological conflicts in our times have
forced the return to the natural law way of thinking thus giving truth to
what Gilson once said that “the natural law buries its own undertakers.”