The Teleological Perspective: Greek and Roman

Concept of Justice
BAYLON, BOHOL, BRUTAS

Labels
It views the law in terms of its basis and fulfillment of its purposes or ends.
Philosophical jurisprudence
Teleological jurisprudence - more appropriate

Fundamental point of view:
The law is ordained for the fulfillment of the precepts of the natural law
namely, righteousness, justice fairness and equality
Achievement or realization of these precepts in the legal order is the TELOS of
the law.
Telos - Greek for "end", "purpose", or "goal

Natural Law Basis
Natural Law - the universal discipline of virtue impressed in the heart and
mind of man to guide him in the exercise of his rights, in the performance of his
obligations, in the observance of rules, and in the preservation of order and
unity.
Precepts of natural law: RIGHTEOUSNESS, JUSTICE, EQUITY, AND FAIRNESS

Teleological concept of law is based on natural law.
View: there is a very present bond or relationship existing between positive law and
natural law.
Precepts of the natural law are not considered divisions of the law but its very perfection.
Teleological jurisprudence believes that a good legal order can be deduced from natural
law
law universally valid for all people

Greek Concept
Moral nature and good faith of human beings starting point of the study of nature of law
by Socrates, Plato and Aristotle.
Socrates, Plato, and Aristotle believed that the main condition of life in society is GOOD FAITH
which means human beings have a basic concept of JUSTICE enabling them to distinguish
between right and wrong.
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith. (Civil Code of the
Philippines)


Socrates
Socrates Absolute Justice
Two Principal Considerations:
1. No person is intentionally bad or evil because of the knowledge of justice.
Failure to do what is just is really due to morbid psychological
appetites, mistakes or bad company.
2. Only a temperate person knows himself or herself and thus, able to bring his or
her emotions under control.
Socrates motto: KNOW THYSELF.
The master virtue is knowledge of the absolute good.
Determining criterion whether the consequences of human conduct
is virtuous or vicious
Even in death, he considered that the judges who sentenced him to poison himself, on the
charge of non-conformity, as acting for the good of Athens.

Plato
Platos Rational Justice
All objects and activities yielding to the physical sense are only representations
of, or named after certain ideas by virtue of their relationships to them.
Idea of JUSTICE exists in the mind, even though it is not seen in fact or
performed.
Since man is an intellectual and sensible being, REASON provides him with the
means and opportunity of discerning what is right and what is wrong.
Platos Universal Justice
According to Plato, JUSTICE is
The single greatest good
Totality or harmony of human virtues
Synonymous to morality
Morality
o Healthy and harmony of the soul
o The coalesce of the cardinal virtues (UPRIGHTNESS,
PRUDENCE, TEMPERANCE, and COURAGE)
As opposed to INJUSTICE
The single greatest evil
Totality or harmony of vices
Synonymous to immorality

Aristotle
Aristotles Practical Justice
In Aristotles Ethica Nicomachea provides a narrower concept of justice
Justice must be understood in the sense of what is FAIR and EQUAL.
Aristotles fair equality
Objective of justice: to render as nearly as possible what belongs to every one
according to the rule of law.
Aristotle distinguished:
PROPORTIONAL JUSTICE man receives what is entitled to
whim on the basis of his ability and achievements
NUMERICAL JUSTICE each man is counted for one and one
only
Act is justified if and when it is done with fair equality and thus capable of
being done by others.
Practical Justice sound sense of view of justice so that the good life can be
within reach of human beings not like Socrates and Platos concept
(demanded the kind of moral excellence which is the culmination of all virtues)

Aristotles Particular Justice
Particular Justice rendering as nearly as possible to every person what he/she is
entitled on the basis of what Aristotle called the rule of law
Justice- particular virtue not a universal ingredient in the application of law in society
Justice in its rational and objectively secular conception particular justice
(Calalang vs. Williams definition of social justice)
Rodriguez vs. Tan
The Court held that the emoluments must go to the person who
rendered the service.
o Particular justice which is fair and equal

Roman Concept
Roman jurisprudence subjected it to technical analysis and endorsed it with their
authority and practical genius, unlike the Greeks concept of nature of law which was only
a philosophical speculation.

Cicero
Absorbed the Greek idea of universality of the natural law and brought it into
contact with the Roman legal system.
Principle of utility interest of the ruler and not for the interest of the
governed
According to Ciceros De Republica, law exacts duty and compliance by means
of COMMANDS, not by its reasonableness alone, and prevents wrongdoing by
means of prohibitions.
Definition of justice the sentiment which maintains good human relations by
means of fairness and equality
the force of justice is so great that not even those who live by ill-doing or
crime can manage to exist without some share of justice
Maintained the idealism of the Greeks despite his attempt to pursue empirical
approach in the development of his concept of law.
Conception of justice began to have a definite legal content.

Gaius
Like Cicero, he viewed that some rules are perennial since they are based on
natural laws while others are not since they are derogation or perversion of its
postulates.
Gaius advocated for a continuous effort of removing harmful and useless rules
of law.
Reexamination by the lawmaking bodies every once in a while.
Any abnormality in the legal order could be adjusted to comply with
the end and purpose of the law.









Teleological Perspective vs. Positivist Perspective

Teleological Perspective Positivist Perspective
Natural law based There need not be any moral or ideal criterion for
the validity of law. However it does not mean that
there is a deliberate attempt to forsake the norms of
moral laws or postulates of natural law.
Metaphysical assumptions Free from metaphysical speculations.
Transcendental sphere of reality -
the ought
Empirical sphere of reality - the is
Impressed in every man Cannot be general without some kind of agreement
among men

According to Plato:

Natural law Legal law
Just by nature Just merely by enactment
The ought The is
Perfect idea of law Imperfect representation of law

According to Aristotle:
Natural Justice Legal Justice
Absolute and universal Indifferent and relative
Same force and effect everywhere May be contrary to natural
justice














The Aquinian Concept
(Casilla, Chua, Correa)

With the resurgence of Christianity during the 12
th
and 13
th
centuries,
scholastic thinkers pursued the theological path in the search for the
metamaterial principles which influence the ordering of human
conduct and the administration of the legal process.

St. Thomas Aquinas thought of the law as an institution ordained by
God. The Greco-Roman notion of impersonal nature as the ultimate
source of laws was substituted by the power of God who governs all
things by the rational arrangement and distribution of His divine
providence.

The loyalty of the people to the legal order is held to be in accordance
with the will or command of God, of which the Church was considered
as the authoritative interpreter and final arbiter.

Aquinas wrote: kings must be subject to priests. . . Therefore, as soon
as the ruler falls under sentence of ex-communication for apostacy
from the faith, his subjects are ipso facto absolved from his rule and
from the oath of fealty which bound them to him.

St. Thomas acquired from the Greeks the importance of the precepts of
the natural law doctrine in the formulation of positive or enacted laws,
with which the primacy of a higher law over positive law is the
mainspring of the Thomistic philosophy of law.

St. Thomas Aquinas agreed that man is rational and that he has a
rational and a nutritive soul.

St. Augustine found the sensitive functions as the symbol of mans
generic depravity and corruption and thus man can hope for salvation
only by divine illumination or through the grave of God.

Like Socrates, St. Thomas Aquinas believed in the rational capacity of
man to know the absolute good.

St. Thomas held: reason influenced by sensation is not sufficient to
bring man to a correct understanding of what is right and just. the
use of this kind of reason becomes relativistic or discursive and, thus
often, contradictory.

Man is full of prejudice that even when he claims to be reasonable or
acting rationally, he is frequently guilty of irrational bias. reason
related to the limited nature of the mind is not true to the nature of the
absolute good. This tends to separate law from justice.

St. Thomas reiterated the forgotten idea of the Greeks that sophia or
right reason is the governing idea to bring man to his well-being real
harmony with his social relations.

St. Thomas Aquinas, in his Summa Theologica, introduced a
combination of right reason, on the one hand, and justice and equity, on
the other hand, infusing it with the profound observation that the first
principle of any concept is its governing rule. Moreover, right reason is
the governing rule of human conduct. He believed that the law is an
ordinance of right reason for the common good and happiness.

This concept of the law (jus) should be distinguished from his definition
of a law (lex) as a rule and measure of acts, whereby man is induced to
act or is restrained from acting.

The force of positive law for St. Thomas Aquinas depends a great deal
on the extent of its justice.










Jherenian concept
(DE JESUS)

1. Principle of Purpose
Purpose is the prime mover of law
Choices and decisions are made for a purpose
This is departure from the idea of Benedict de Spinoza
Benedict de Spinoza is a great Dutch philosopher who was raised in the
Jewish community in Holland. He was enormously influenced by Jewish
medieval philosophy and the philosophies of Hobbes and Descartes
According to Spinoza the human will is determined by a cause
Jhering stated that there is no place for physical determinism in the sphere
of human conduct. The philosophical doctrine that every state of affairs,
including every human event, act, and decision is the inevitable consequence
of antecedent states of affairs.
2. Interest in pleasures and an inclination to shun pain
Individual members of the society can proceed to gratify their
interest only as far as the interest of society are not
adversely affected thereby
Example:
New Civil Code Art. 1306
the contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided they are
not contrary to law, morals, good customs, public order or public
policy.
Social Mechanics
Egoistic levers
Refers to incentives addressed to self-interest
Two Kinds:
Non-coercive
Event of reward
Expectations of honor, respect, or income
Event of association
Expectation of acceptance by individuals or society
Coercive
Mechanical lever
Society itself acts in order to master, subdue, or brake an individuals
purpose
E.g. State may send a person to prison in order to prevent him from
further realizing his criminal fecundity
Revised Penal Code punishes attempted crimes
Psychological
Breaking of the individual will or purpose is
done by the person concerned
Altruistic levers
Characterized by kindness and concern for others
The feeling of duty
Certain tasks enjoined on the individual members of
society so that conditions of social living can be realized
E. g. Rule of Mandatory Legal Aid Service for Practicing
Lawyers
The feeling of goodwill
Love of family and love of country
E.g. Solidarity and patriotism
REPUBLIC ACT NO. 8491
AN ACT PRESCRIBING THE CODE OF THE NATIONAL FLAG, ANTHEM, MOTTO,
COAT-OF-ARMS AND OTHER HERALDIC ITEMS AND DEVICES OF THE
PHILIPPINES
REPUBLIC ACT NO. 8491
AN ACT PRESCRIBING THE CODE OF THE NATIONAL FLAG, ANTHEM, MOTTO,
COAT-OF-ARMS AND OTHER HERALDIC ITEMS AND DEVICES OF THE
PHILIPPINES


Value of Utility Supplement
The principles of utilitarian ethics are applicable in legal theory, especially the
development and thrust of the law.













FUNCTIONAL PERSPECTIVE
Eriga, Fragante, Guerrero, Ilagan
Legal Sociology
- Law must be subject to sociological scrutiny
- Studying the relationship of the law with various social phenomena (ex.
Institutions of society, observable behavior and functions of human groups,
and social trends)
- Sociology of law seeks to discover the impact of relevance of social diversity on
the law
Functional Jurisprudence
- Fundamental focus: analysis of the characteristic action of the law in the
solution of conflicting wants in terms of the interests of society
- The thrust of this juristic school is to inquire into the role of the social interests
in the adjustment and reduction of conflicting claims, demands and
expectations of the people.
- Functional jurisprudence is a strong reaction the idealism of both the historical
and teleological perspectives of the nature of the law.
Criticism of Abstract Values
- The perspectives of the historical and teleological schools of jurisprudence are
impractical in the legal ordering of society
- Folksoul: tends to stifle and isolate the concept of the legal order
- Natural Law: so abstract as to be of any real value in the adjustment of
conflicting or overlapping wants
Criticism of Legal Positivism
- 1. Against the view of the positivists that there is no immediate or necessary
connection between law and morals
o This is a very dangerous idea because of the possibility of the
perplexing situation where a statute, rule or decision, no matter how
far apart it may be from morals has to be treated as binging
o The problem should be considered in its totality
o Ex: Legalization of gambling, German officials during WW2
o Gambling is a lawful on three conditions: 1) the stakes must belong
to the ones that gamble, 2) there is no fraud involved, and 3) there is
for all approximately equal hope of winning and an equal risk of
losing. Only the issue of the legality of gambling was addressed.
There was no effort at all to address the moral issue involved.
- 2. It is not in touch with pragmatic ethics, that is to say the social interests as
the highest good in the legal ordering of a politically organized society.

Interests of Society:
- The functional school of jurisprudence is drawn to a philosophy of social
interests which seeks the adjustment of conflicting or overlapping wants, that
is to say claims, demands and expectations, whether asserted by individuals as
such or by the public as such, with the minimum of friction
- Contemporary society is organized along lines which make it difficult for an
individual to attend to his or her needs alone.
- Robert Hutchins: the functional approach is an effort to follow the law in
action, to find out the consequences of legal decisions on the social interests.
- Legal order must proceed on the basis of an impartial consideration of the
claims, demands and expectations of the different groups in the community.
- Shift the emphasis in the legal order from the interests of the individual to the
interests of society.
- The drive of functional jurisprudence is to return the conception of the law
back to its social content.
- John Salmond: law without regard and reference to its societal significance
would be fruitless.

Core of Functional Jurisprudence
- Observable facts in contemporary society:
1. The enormous amount of human wants
2. Limited means at the disposal of the state in satisfying them
3. The aggressive tendencies of individuals in the assertion of their wants or
the acquisition of some vantage positions for them
4. The long drawn nature of the resulting conflicts of interests
5. The inability of the legal order to fully recognize and satisfy the
conflicting or overlapping interests at the same time
- Social engineering
o Legal order is called upon to decide which of the conflicting or
overlapping interests would have to be recognized and protected,
which ones would have to be denied, and which ones would have to
be postponed.
o To accomplish this, it is necessary to identify the jural postulates of
civilized society, work out a scheme of social interests on the basis
of such jural postulates, and organize a minimum network of
national policies expressive, indicative or suggestive of each social
interest.

Functional concept of law
- The functional school of jurisprudence would rather resolve conflicts of
interests not by absolute judgment, that is to say by avoiding the satisfaction of
one competing interest at the total expense of the other whenever possible.
- Law as a specialized form of social control for the solution, adjustment, or, if no
better can be done, compromise of conflicting or overlapping claims, demands
and expectations to secure as much as may be possible the social interests with
the minimum of friction.
- Whenever possible, a balance, no matter how delicate the compromise might
be, must be made whenever the conflicting or overlapping claims, demands
and expectations cannot properly receive simultaneous recognition or
protection.
- The adjustment of conflicting or overlapping interests is dictated by two
factors: 1) preventing or minimizing further conflicts, and 2) balancing or
compromising conflicting interests to guarantee social equilibrium.
- The social reality of these factors is that the solution reached is more lasting
and enduring than when one competing interest is allowed to survive the
conflict at the total expense of the other. But conflicting or overlapping
interests cannot always be compromised. There are situations when one
interest has to give way to another. Social engineering requires that the
surviving interest be recognized only after divesting it of its objectionable or
unacceptable aspects. (Example: Eminent Domain)
- Once an interest is recognized it is then protected by the legal order. The
subordinate interest, on the other hand, responds either as a legal
responsibility or as a legal disability.
Presentation of Conflicting or Overlapping Interests
- There are pitfalls which the organs of government must guard against at all
times in the process of weighing or valuing conflicting or overlapping interests
1. Mind the manner in which the conflicting or overlapping interests are
present for adjudication.
o When conflicting or overlapping wants are presented for the
purpose of adjustment great care should be taken in order that
claims, demands or expectations belonging to the same class are not
stated or presented in unequal terms or levels.
o The question may be decided in advance by the very act of putting it
2. Mind the simplicity of expediency
o It is easier to get things done by simply putting a claim, demand or
expectation in terms of social interest when actually it may only
involve a competing individual interest
o The valuation of the conflicting or overlapping interests should be
stated in terms of what they really are
SOCIAL INTERESTS AND NATIONAL POLICIES
GOAL of Functional Perspective
Serve the Jural postulates and express the social interests. Incorporate these
Social Interests in the formulation of the Law.
HOW to attain the goal
Roscoe Pound: Construct a theory of social interests which the courts may
use, just as in the past they have used the scheme of individual interests which
we call theories of natural rights.
WAYS to attain the goal (Secure and Protect)
Public and Individual Interests
Social interests
National policies
Definition of the Functional Perspective
1. Justice Cordozo: The analysis of the social interests and their relative
importance is one the clues that the lawgiver and the judge must utilize in the
solution of their problems.
- Always changing, evolving, and improving for the betterment of
society.
- Not absolute unlike the other schools of jurisprudence.
2. Justice Holmes: That the true grounds of decisions are consideration of policy
and social advantage, and it is vain to suppose that solutions can be attained
merely by logic and the general propositions of law which nobody
disputes.
- Not abstract, based on the ideas people, not on the state, or Supreme
Being.
- Example: Positivist State as Supreme Power
All believed that a politically organized society must have a jurisprudence of social
interests and national policies to guide the legal ordering of society.
MECHANICISMS OF THE FUNCTIONAL PERSPECTIVE (Roscoe Pound)
The law cannot be dissociated from pragmatic ethics, that is to say that social
interests are of the highest good
There is no hierarchy of the social interests because it is relative always
changing
Unlike the Positivists top of the scale is the grand norm as declared by the state
PROBLEM: How do we determine the social interests in which the law may be
formulated? What is more important or beneficial to society?
1. Individual interests: Is a claim, demand or expectation involved or looked at
from a stand point of individual life.
- Interests of personality freedom of expression, right to privacy
- Domestic interests family relations
- Interests of substance deals with economic situations
2. Public interests: Claims, demands, or expectations asserted by the public as a
distinct juristic entity concerning the personality, integrity and continuity of
the state.
3. Social Interest: The claims, demands, or expectations asserted by the ENTIRE
society as such for the promotion and protection of the social welfare.
- Individual interests + Public interests = Social Interest
- Compromise, strike a balance between the two (2) interests
4. National Policy: The basic manifestation, expression, or valuation of some
social interest
- This is to test the social interest if it is fit for society
How do we secure the private and public interests?
1. Individual interests
i. Civil or legal personality
- The fitness to be the subject of jural relations
- The faculty of doing or not doing something with definite
legal consequences
Extended by the legal order in
- Pre-facto before the fact of birth
- Post-facto after the fact of death
ii. By conferring upon persons or institutions on whom civil
personality has been attributed by the legal authorities
iii. Imposing upon persons or institutions on whom civil personality has
been attributed certain legal responsibilities.
2. Public interests
i. The conferment of juristic personality on the state and other
corporations
ii. The grant of certain rights to the state and other corporations
iii. The imposition on the members of the society of the correlative
obligations of the rights granted to state and other corporations
iv. Recognition of certain processes for the vindication of the social
interests
PROTECTION OF SOCIAL INTERESTS
They are the main drivers of this system and it is the task of the legal order to
continually protect them
1. Social interest in General Security
i. Four aspects of social living involved: SAFETY, COMFORT, ORDER, and PEACE
ii. The task is to enact laws/policies that protect these four (4) essential aspects
- Bill of rights
- Proper publication of the law
2. Protection of institutions
i. The stability of society depends on the interaction of the DOMESTIC,
RELIGIOUS, POLITICAL, and ECONOMIC institutions.
ii. Laws enacted should protect these interests:
Domestic Protection of Family Relations and of self
i. Family Code marriages, property relations of spouses, parental
authority
ii. 1987 Constitution unlawful searches and seizures
Religious - Capacity for religious experiences, relationship with a
spiritual being
i. 1987 Constitution Article III, Section 5.
Political - Stability of the political institutions
i. 1987 Constitution non-suability of the state, delegation of powers,
and the separation of church and state
Economic - Secure the economic life/welfare of society
i. Property rights, the labor code
ii. 1987 Constitution guarantee to form unions
Social Interest in General Morals
-based on the right and concern of the entire community against those forms or acts and
practices which are offensive to the contemporary moral standard of the community.
Both individual and society have a right to be protected from obscene or indecent
activities/materials
Three-pronged standard to test whether or not an act or material is obscene or indecent:
1) Does the act or material depict conduct in a patently offensive way?
2) Does the act or material lack redeeming social value (unconcerned with socio-
moral problems and their solutions)?
3) Does the act or material violate the generally accepted moral sense of the
community?
How will the moral sense of the community or society be ascertained?
Learned Hand (1872-1961) and Justice Benjamin Cardozo (1870-1938) considering the
reaction of the substantial portion of the intelligent and virtuous persons who would
think an act or material is either morally reprehensible or morally justifiable.
Thus, to ascertain the contemporary moral sense of the community regarding a particular
act or material is not for the adjudicating official to substitute his/her own personal
outlook or belief in the matter.
Jerome Frank (1889-1937) it should be the attitude of the ethical leaders of the
community that should be consulted in ascertaining the moral sense of the community.
best guess approach- confined to the best guess adjudicating officials can make on how
the substantial portion of the intelligent and virtuous persons in the community would
react to a particular act or material in question
Henri Bergson (1859-1941)- dissented the best guess approach. There should be
thoughtful reflection on what the substantial portion of the intelligent/virtuous persons
in the community would feel on a particular act or material in question.
Case: Yu Singco v. Republic of the Philippines G.R. No. L-6162 June 29, 1953
Facts: Yu Singco applied for naturalization as a Filipino Citizen but was opposed on the
ground that he led an immoral life. He maintained two families with two different women
while having illicit relations at the same time with another woman whom he had several
children.
The Trial Judge relied on his own moral outlook and own personal reflection in the
situation. The Court believes that such love affairs did exist once upon a time when the
petitioner was still a young married man, this is not unusual in life
The Supreme Court reversed the decision and held that the conduct of Yu Singco is
generally condemned by the moral values of the community as improper and
reproachable.
Ruling was made in accordance to the ideas of Ronald Dworkin and Richard Fallow Jr.
that appropriate ethics and principles of morality of society are its inherent and ingrained
values reflected by its institutions and traditions.
Social Interest in the Conservation of Human Resources
-based on the concern of the entire social group against those forms of acts and practices
which impair the human assets of the community.
Social Interest in the Conservation of Natural Resources
-based on the concern of the entire social group against those forms of acts that are
destructive and ruinous of the resources of the people.
conservation- thrifty utilization and prevention of waste of the natural bounty as well
as its orderly planning and proper development so as to maintain biological diversity and
prevent damage to the fragile ecosystem.
Several Characteristics of natural resources the make them quite important:
1) they are not inexhaustible yet they alone can meet the national and local needs
for production and consumption.
2) They can be utilized and yet conserved for the future.
Social Interest in the General Health
-based on the concern of the entire social group that everyone has a right to the
enjoyment of the highest obtainable health and well-being for the proper functioning of
both body and mind.
A decline in the health of people carries with it far reaching implications:
1) small yield in reserves for sustained and productive labor (physical and mental)
2) decrease in the capacity for production of goods and services
3) adverse effect on income and decrease in purchasing power and lower living standards
4) low morale of the people
Social Interest in Human Personality and Dignity
-based on the concern of the entire social group against those forms of acts and practices
in derogation of human personality and dignity.
SOCIAL INTEREST IN THE GENERAL PROGRESS
In all societies and disciplines, progress does not mean mere change. Not all change is
progress (ex. degeneration, decadence)
The vitality depends on their continuous improvement and, in no small measure, on the
development of rational, self-determining members of the community. There are
historical instances of societies which have degenerated because of failure to afford the
favoring conditions of development not only of social institutions but also of self-
determining individuals.
Edmund Burke stated that a society without concern and regard for general progress is
without the means it might even risk the loss of that which it wished the most to
religiously preserve.
SOCIAL INTEREST is based on the concern of the entire social group against those forms
of acts and practices which threaten or impair the intellectual and moral aspects of the
nature of man and the development of control over the forces of nature for the
satisfaction of human needs.
SOCIAL INTEREST IN THE GENERAL PROGRESS APPEARS IN FOUR FORMS:
1. Cultural Progress
It is based on the rational soul of man, his intellectual and
imaginative capacity.
Mans intellectual nature is expressed in the desire to know the
truth no matter where it may tend or lead, or how popular or
unpopular the result may be, or how important or unimportant the
persons are whose thoughts and ideas are to be criticized or
evaluated without this, falsehood and deceit concerning life are
injurious and fatal to all.
-The chief concern, therefore, of intellectual capacity is the
encouragement of arts and letters and academic freedom.

Conditions for intellectual experience or the attainment of the truth:
1. An honest, critical and inquiring mind
2. The acceptance of the recognize standard of propriety in order to prevent
doubt and expose error
3. A climate where the freedom to think, read, write, criticize, reformulate,
evaluate and believe prevails.
`
The unfavorable climate to cultural progress is brought about by
governmental intervention as well as religious interference. This can
be illustrated by means of the problem of academic freedom which
can be jeopardized. This freedom is a vital and necessary adjunct to
cultural progress, however is not an absolute right.
CULTURAL PROGRESS is the improvement and betterment of the contents of human
knowledge and heritage as well as the means for their conservations and transmission.
2. Moral Progress
For Roscoe Pound, interest in moral progress is not the same as the
social interest in the general morals. This distinction is explained by
the fact that the present morality may not necessarily be the best
morality.
MORAL PROGRESS is based on the idea that the enlightened individual, not customary
modes of decisions, is the source of moral judgment. There are jurisprudents who seem
to consider morality to be implicit in the customary criteria of society.
It is not simply conformity to laws either. There are laws which do
not meet the test of morality and there are laws which enforce only
minimum standards of morality. Continuous reflection upon ethical
principles and recognized standards of propriety becomes its very
important element.
3. Economic Progress
ECONOMIC PROGRESS is the development of human control over the forces of nature for
the satisfaction of human need or is the continuous satisfaction of the economic
requirements of the people for the enjoyment of good and happy life.
Guido v. Rural Progress Administration the Supreme Court of the Philippines,
speaking through Justice Jose P. Laurel, held that hand in hand with the announced
principlethat the promotion of social justice to insure the well-being and economic
security of all the people should be the concern of the state, is a declaration, with which
the former should be reconciled, that the Philippines is a republican state created to
secure to the Filipino people the blessings of independence under a regime of justice,
liberty and democracy. Democracy, as way of life enshrined in the constitution, embraces
as its necessary components freedom of conscience, freedom of expression, and freedom
in the pursuit of happiness. Along with these freedoms are included economic freedom of
enterprise within reasonable bounds and under proper control.
There is always a minimum economic freedom which must be met
otherwise normal relations may not be enjoyed.
Economic Progress is thus it depends ultimately on two factors:
1. Human control over things and over the forces of nature
2. Betterment of the machinery of economic organization and administration.
4. Political Progress
POLITICAL PROGRESS is not based on the improvement and elaboration of the political
and legal machineries. It also deals with the formation, clarification and distribution of
social values among the members of the society. In a democratic society, accurate
information concerning the matters mentioned above is a prerequisite condition for
political progress. When this condition prevails, intelligent decision-making is possible.
SOCIAL INTEREST IN THE GENERAL AESTHETICS
Roscoe Pounds classification of social interest does not include the
concern and interest of society in the general aesthetics. As now
protected by the legal order, the social interest in general aesthetics
refers to the concern of the people in the pleasures prompted by the
beauty of nature, fine and performing arts, and belles letters.
One of the unique marks of human personality is its capacity for
aesthetics experience. This is the capacity of human beings to create
art and appreciate beauty.
Two aspects of beauty and art:
1. Subjective this aspect considers beauty and art dependent solely on the
perception of the artist, observer or collector. It varies with different
individuals at the different times and different place. An object of art or
relation of arts is beautiful, agreeable, or pleasant because it carries to
fulfillment the aesthetic possibilities and the tendencies of the artist, observer
or collector.
2. Objective- it considers beauty and art to inhere in the external object or thing,
that is to say beauty and art are capable of existing by themselves. There are
works, objects, or things that are sincerely considered and preferred as having
artistic value.

The realization and expression of beauty and art is possible
through the media of nature (environment), wood (carving),
marble (sculpture), pigment (painting), rhythm (dance),
harmony (music), and language (prose or poetry).
Aesthetics considerations have come to the fore in the exercise
of the police power of the state. The exercise of police power in
this area of social interest must have substantial relation to the
general welfare and must be a reasonable measure for the
attainment of the purpose sought to be achieved.
The social interest in the general aesthetics is thus based on
the concern of society against those forms of acts and practices
which impair the balance of nature and those which hinder
aesthetics possibilities and development.
ADJUSTMENT OF CONFLICTING INTERESTS
Since human wants, demands and expectations are fluid and sometimes technical in
character, which agency of the government best qualified to ascertain?
The first view considers the courts as the proper public agency to perform the
task of assessing and adjusting conflicting or overlapping interests.
The other view considers the social engineering of the determination of what is
necessary for the good of the collective polity as the prerogative and function
of the people themselves but this is unrealistic at the present time. Grounds in
support of this view:

1. Election of members of the legislative branch to determine the precise
limit of interest and balance or compromise to be struck in the
adjustment of such conflicting parties and also, social interest and
national policies are sooner realized and fulfilled by them since it enjoys
the confidence and trust of the entire community.
2. Courts have also engaged in judicial legislation in correcting or clearing
indistinct or unduly restrictive policy statement. The defense is that
knowledge of courts is like of the legislative body, comes also from the
prevailing or accepted sentiments of the people, from experience and
learning, from research and reading, and from juridical reflection
The legislative intention is always composed of purpose and essence. Thus,
courts must follow the rule of purposive and essential interpretation of
statutes which Aristotle also expressed long ago as the correction of that
wherein the law, by reason of its generality, is deficient. And the correction
process involves restraining a statute so as to take in less or enlarging it so as
to take in more than the words or texts of the statute indicate.
But functional jurisprudence posits the view that judicial legislation is acceptable only
when the process takes into consideration the jural postulates, social interests and
national policies.
VALUE OF FUNCTIONAL JURISPRUDENCE
The underlying jural postulates of the legal order, the scheme of social
interests and the network of national policies expressive or indicative thereof
are helpful in determining the limits of reasonable adjustment of competing
interests.

When used in this manner especially in new areas of law there is some degree
of assurance that there will be no vague or ambiguous reference to some social
interest or national policy.
Doctrine of cooperation- a person who has in his or her power to prevent harm to
another could very well withhold action and not be perturbed by the consequence of such
indifference. It must include cooperation by omission of that which should have been
done in a given situation. In other words, there is responsibility on the part of a person or
group of persons to allow some crime or harm to be committed or done when it could
have been prevented without any danger to them.













































LEGAL REALISM, AN OVERVIEW

(E.V. LORETO, 1-G)

I. LABELS
The term Modern Legal Realism describes the experiential outlook of this
perspective
Experiential: Derived from experience of the people
Not based on metaphysical speculations or morality
However, there are those who prefer the term Pragmatic Jurisprudence
Aptly describes the post-metaphysical view of this juristic school
What is pragmatism?
Pragmatism posits that the meaning of concepts and ideas are to be sought
in their practical results
As a theory of knowledge: is based on pure experience which rejects all
transcendental principles as well as abstract concepts and ideas
As a method of analysis: If there is no conceivable practical effect of a concept
or idea, then there is no point in pursuing its analysis
As a method of settling disputes: insists of examining closely the practical
consequences of the proposed solution
Influence of pragmatism on legal realism:
-Legal realism states that: The idealistic concepts of law are impractical, for shutting
down the experiential factors which make the law throb with life (living law vs. a
lifeless or futile law)
But, according to Pascual:
The label pragmatism fits only so far as it has turned away to abstract theories;
Does not fit the emphasis given by the modern realist jurisprudents on the practical
consequences of the law in action (the importance of human experiences in
formulating rules governing human conduct)

II. LEGAL REALISM, AS A WHOLE
The essential tenet of legal realism is that all law is made by human beings and, thus,
is subject to human frailties and imperfections.
Laws made by men are: 1) idiosyncratic or faulty; 2) imperfect; 3) changes based on
collective belief (i.e., not rigid)
THUS: Written laws, in themselves, are not perfect and should not be the sole basis
of legal order (as opposed to positivism)
Made by men: The legal realist perspective approaches the problem of the nature of
the law by a complete avoidance of the transcendental ought. The law is not an
ideal concept but something that actually exists. It is not that which is in
accordance with nature, or religion, or morality. (Grey, J.C.)
Source: The law derives its life from human experiences and inexperiences
"The life of the law has not been logic; it has been experience. The felt necessities of
the times, the prevalent moral and political theories, intentions of public policy
avowed or unconscious, even the prejudices which judges share with their fellow
men, have had a lot to do than the syllogism in determining the rules by which men
should be governed Justice Holmes
2 points: 1) Experience as a source of law; and 2) Metalegal realities as having
more profound effect than logic, in governing human conduct
According to Judicial Legal Realism: The law is what the Courts say it is.
Vs. Positivism: Congressional acts are not law but are a source of law. The idea of
law as commands of the state is still open to further scrutiny since it is the judicial
organ that gives the command its true meaning and limits.
Such are to be based on Experience and Metalegal realities: felt necessities of the
times, the prevalent moral and political theories, intentions of public policy avowed
or unconscious, even the prejudices which judges share with their fellow men
How does legal realism differ from Formalism?
Formalism = defined by strict adherence to rules : (F x R = D)
Legal realists: While legal rules are important, they do not by themselves dictate the
result or decision of a case. Rule skeptics, under a legal realism perspective,
question the notion that legal rules are precise and can be applied easily in a given
case.
Holmes: This process is mechanical and simplistic. What the courts will do in fact
(living law) is not achieved only by the interaction of the rules on the facts.
Basis: Experience and Metalegal realities
Metalegal realities: The SC entertains some kind of prejudice,
whether political, moral..Each one of us is the child of our past
personal experiences, surroundings, education.. Justice Perfecto
Metalegal factors, are not to be shunned. If impartiality is to mean total absence of
preconceptions in the mind of the judge, then no one has ever had a fair trial and no
one ever will.
For the judge may not base solely his decisions on rigid rules as applied to facts of
the case; for rules made by men are imperfect.
The judge has the duty to act in accordance with those basic predelictions (based on
societal preconceptions; shared values of society) although he has the right at times
to urge that some of them be abandoned or modified
Therefore, the following ideas characterize legal realism:
1. Laws are made by men and should be free from metaphysical speculation.
2. Law is not a moral concept.
3. Laws are not rigid, but dynamic.
4. Rather than be based solely on fixed and rigid rules, laws are to be based on
collective experiences of the people. (since all that people can appreciate well are
their own experiences - Dewey)

III. AS A DISTINCT SCHOOL OF THOUGHT
Vis--vis Functionalism:
---For Bodenheimer and Stone, legal realism considers the same factors that
functionalism deals with
Bodenheimer: legal realism as the radical wing of functionalism
Stone: legal realism as a gloss of functionalism
But according to the author:
Unlike the functional jurisprudents, the legal realists are more concerned with the
operation of the legal order in terms of experiences (and inexperiences) of the
people in the legal ordering of society
E.g., Legal realists criticize functionalists for virtually disregarding the metalegal
factors that unavoidably affect the judicial process.
Functionalism, an overview:
It focuses on the question: "Will this law work?" Law is thus seen as one of
experience as well.
It focuses on the "operation and effects" of law in relation to the interests of
society. The "interests of society (individual, public, social) not the folk-soul or the
pressures from the powerful elite, is the source of law.
The main factors that define the law are expediency and the convenience of society.
Since not all social conflicts can be compromised, some interests must give in. The
greatest good for the greatest number, or "social utilitarianism," is the main
guidepost of the functional school. Law is pragmatic and dynamic.


SOCIAL LEGAL REALISM

Legal realism has many forms. However, this report will focus on John Deweys
Social Legal Realism

I. WHO IS JOHN DEWEY?
Philosopher, psychologist, educational reformer
An important early developer of the philosophy of pragmatism and one of the
founders of functional psychology (considers mental life and behavior in terms of
active adaptation to the person's environment)

II. SOCIAL LEGAL REALISM, AN OVERVIEW
Based on John Deweys philosophy of education learning by doing (experiential
learning)
Dewey: knowledge is part of life-experience involving the intercourse of a living
being with his physical and social environment
Learning becomes effective when coordinated with experience
John Deweys Philosophy an echo of Humes idea that knowledge is derived from
experiential observation
For Hume, all knowledge is derived from observation, that is to say, from
sense experience
Those are not sourced from sense experience must be committed to
flames, for it can contain nothing but sophistry and illusion.
The life of the law is the social experience of the people and tested and guided by
the social experience
The law cannot be understood apart from its social environment but must
profit from social experience in the development of concepts, rules and
regulations
E.g., As opposed to positivism, what governs the people must always be
rooted to the peoples experiences
Law is a through and through social phenomenon

SOURCE OF LAW, ACCORDING TO SOCIAL LEGAL REALISM
Vs. Natural law, on the ultimate source of law:
Dewey disagreed with the idea that unless a source higher and more fixed than
experience can be found, the is no sure ground for any genuinely philosophic
valuation of law as it actually exists
For Dewey, this is not supported by practical experience
Natural law was the law above the law. It is a theory founded on the philosophical
and legal belief that all humans are governed by basic innate laws, or laws of nature.
Legal Realism is founded on the belief that man makes up his own law. Instead of
consulting universal principles, man consults his own needs, wants, and agendas, or
the changing norms of the society in which he lives.
Dewey posited that law is the product of on-going human activities and
interactivities
The source of law is the social experience of the people, not some transcendental
concept, since all that people can appreciate well are their own experiences
What does this mean - Law as a product of activities and interactivities:
A group of people recognizes and accepts the desirable human activities
(customs) enriched by the desirable human interactivities (usages)
This is similar to Savignys volksgeist, for the idea of social experience as the
source of the law refers to the customs and usages of the people
Savigny states that law is not made by a committee of draughtsmen, but
that it grows from a peoples experience and character. It is what he
describes as a common feeling of inner necessity
The true nature of law is to be found in customary law
More on Savignys Volkgeist:
He opposed codification of civil laws of the various Germanic provinces
on the basis of principles of Roman law; he insisted that the use of
traditional legal materials of a people is the better approach to the task of
codification and lawmaking rather than the use of an alien legal system

END OR PURPOSE OF LAW
(FROM THE SOCIAL LEGAL REALIST PERSPECTIVE)
NICOLE ALORA JULIAN
1F

End or Purpose of Law:
Other critiques: If the law is the produce of the activities and interactivities of
the people, then the standard for judging the end or purpose of the law as well
as its validity must depend on some anxiological or non-empirical criterion
Dewey
The Law is a program of action to be tested in action
The life of the law is the social experience of the people and tested
also by their social experience
The end or purpose of the law I the deliberate achievement of social
contentment
The end or purpose of the law, thus, remains social in nature for it is found in
the society of the individual members that compose it as a whole.


APPLICATION OF LAW
(FROM THE SOCIAL LEGAL REALIST PERSPECTIVE)
SAMANTHA B. MABANGLO
1F

LAW
Until law is set into operation in the field modifying and/or maintaining human
activities as going concerns, there can be no law in real sense
Law becomes an instrument of social control
The use of sanctions for the attainment of social ends
APPLICATION
It is not something that happens after a rule or statute is laid down but is a
necessary part of them
necessary part - that in a given case we can judge what the law is as a matter
of fact only by telling how it operates and what its effects are in and upon
human activities that are going on
























































































LEGAL FORMALISM
[Manalo. Mapanao.Marcos]

Overview
Formalism is a school of thought in law and jurisprudence which assumes that
the law is a system of rules that can determine the outcome of any case, without
reference to external norms.

A Brief History
English jurist Sir Edward Coke was among the first to popularize the
formalistic approach to law in Anglo-American history. He believed that the COMMON
LAW was "the peculiar science of judges"; that it represented the "artificial perfection of
reason" obtained through "long study, observation, and experience." Coke also believed
that only lawyers, judges, and others trained in the law could fully comprehend and apply
this highest method of reasoning.
Christopher Columbus Langdell invigorated Coke's jurisprudence of artificial
reason in the United States during the second half of the 19th century. He compared the
study of law to the study of science, and suggested that law school classrooms were the
laboratories of jurisprudence. Judicial reasoning, Langdell believed, parallels the
reasoning used in geometric proofs. He urged professors of law to classify and arrange
legal principles much as a taxonomist organizes plant and animal life. Langdell articulated
what has remained the orthodox school of thought in U.S. jurisprudence throughout the
20th century.
Since the early 1970s, Professor Ronald Dworkin has been the foremost
advocate of the formalist approach with some subtle variations. He maintains that law is
best explained as a rational and cohesive system of principles that judges must apply with
integrity. The principle of integrity requires that judges provide equal treatment to all
litigants presenting legal claims that cannot honestly be distinguished.

Formalism, Defined
Also known as conceptualism which treats law like a math or science
Legal formalism is a legal positivist view in philosophy of law and
jurisprudence. While Jeremy Bentham's legal positivism can be seen as appertaining to
the legislature, legal formalism appertains to the Judge; that is, formalism does not (as
positivists do) suggest that the substantive justice of a law is irrelevant, but rather, that in
a democracy, that is a question for the legislature to address, not the Judge
Formalists believe that a judge identifies the relevant legal principles, applies
them to the facts of a case, and logically deduces a rule that will govern the outcome of
the dispute.
The most obvious characteristic of legal formalism is the purported separation
of legal reasoning (or "application" of norms to facts) from normative or policy
considerations. Legal formalists argue that judges and other public officials should be
constrained in their interpretation of legal texts, suggesting that investing the judiciary
with the power to say what the law should be, rather than confining them to expositing
what the law does say, violates the separation of powers.
It is a "theory that law is a set of rules and principles independent of other
political and social institutions.
Lawrence Solum's Legal Theory Lexicon describes Formalism as:
"[A] commitment to a set of ideas that more or less includes the following:
1. The law consists of rules.
2. Legal rules can be meaningful.
3. Legal rules can be applied to particular facts.
4. Some actions accord with meaningful legal rules; other actions do not.
5. The standard for what constitutes following a rule vel non can be publicly knowable
and the focus of intersubjective agreement."

Formalism vs Legal Instrumentalism/Realism
Legal instrumentalism is one of the ideas that are strongly associated with
American legal realismthe great movement in legal thought that is usually associated
with Oliver Wendell Holmes, Jr.
Most instrumentalists would agree on the idea that legal rules should be
interpreted in light of their purposes. When applying the letter of the law would
undermine its purpose, then the rule should be interpreted so that it does not apply. And
likewise, if the spirit of the law would be served by its application, then judges should
give the rule an expansive interpretation. Some instrumentalists may go beyond this, and
argue that judges should sometimes nullify statutes that are bad policy or create judge-
made rules, when that would serve the ends of good policymaking.
Legal formalists counter that giving judges authority to change the law to serve
their own ideas about good policy undermines the rule of law. This tension is especially
interesting in Common Law traditions, i.e. those that, like the English, US, Indian or Israeli
systems, depend on judicial precedent to determine the law.

In Summary
It is characteristic of the positivist perspective of the nature of the law. It is
criticized as a simplification of legal reasoning. In this rigid model, the decisive legal rule
serves as the major premise, the material facts constitute the minor premise, and the
decision is reached strictly by deductive reasoning. In other words, decisions are said to
inevitably follow the basis of stare decisis.

















JASON IVLER y AGUILAR
vs
HON.MARIA ROWENA MODESTO-SAN
PEDRO, and EVANGELINE PASCUAL
G.R. No. 172716 November 17, 2010

Facts:
Following a vehicular collision in August 2004, Ivler was charged before the MeTC of
Pasig City with two separate offenses:
(1) Reckless Imprudence Resulting in Slight Physical Injuries for injuries
sustained by respondent Evangeline L. Ponce; and (Criminal Case No. 82367)
(2) Reckless Imprudence Resulting in Homicide and Damage to Property for
the death of respondent Ponces husband Nestor C. Ponce and damage to the spouses
Ponces vehicle (Criminal Case No. 82366)
On 2004, petitioner pleaded guilty to the charge on the first delict and was
meted out the penalty of public censure. Invoking this conviction, petitioner
moved to quash the Information for the second delict for placing him in
jeopardy of second punishment for the same offense of reckless
imprudence.
The MeTC refused quashal, finding no identity of offenses in the two cases.
The petitioner elevated the matter to the RTC of Pasig City in a petition for
certiorari (SCA No. 2803) while Ivler sought from the MeTC the suspension of
proceedings in the 2
nd
criminal case, including the arraignment, invoking SCA
as a prejudicial question.
Without acting on petitioners motion, the MeTC proceeded with the
arraignment and, because of petitioners absence, cancelled his bail and
ordered his arrest.
RTC dismissed the certiorari because of his forfeiture of standing to maintain it
arising from his non-appearance at the arraignment in the 2
nd
charge. Thus
without reaching the merits of SCA, it affirmed the MeTCs decision.
THE PETITION
Petitioner denies absconding. His appeal before the RTC was a SCA seeking a
pre-trial brief, not a post-trial appeal of a judgment of conviction.
Argues that his constitutional right not to be placed twice in jeopardy of
punishment for the same offense bars his prosecution in Criminal Case No.
82366 (Sec. 21, Art. 3 of the 1987 Consti.)
Ponce: No reason to disturb the RTCs decision forfeiting Ivlers standing to
maintain his petition in the SCA
On the merits, she holds that light offenses (e.g. slight physical injuries) cannot
be complexed under Art.48 of the RPC with grave or less grave felonies (e.g.
homicide)
Hence, prosecution was obliged to separate the charge in CC 82366 for the
slight physical injuries from CC 82367 for the homicide and damage to
property
Issues:
(1) Whether petitioner forfeited his standing to seek relief from his petition for
certiorari when the MeTC ordered his arrest following his non-appearance at
the arraignment in Reckless Imprudence Resulting in Slight Physical Injuries
for injuries sustained by respondent; and
(2) Whether petitioners constitutional right under the Double Jeopardy Clause
bars further proceedings in Reckless Imprudence Resulting in Homicide and
Damage to Property for the death of respondent Ponces husband.
Ruling:
(1) Petioners non-appearance at the arraignment in CC 82367 did not divest him
of personality to maintain the petition in SCA 2803
Under Sec 21, Rule 114 of the Revised Rules of Criminal Procedure,
the defendants absence merely renders his bondsman potentially
liable on its bond; the defendant retains his standing and, should he
fail to surrender, will be tried in absentia and could be convicted or
acquitted. Indeed, the 30-day period granted to the bondsman to
produce the accused underscores the fact that mere non-appearance
does not ipso facto convert the accuseds status to that of a fugitive
without standing
(2) Petitioners Conviction in Criminal Case No. 82367 Bars his Prosecution in
Criminal Case No. 82366
Reckless Imprudence is a Single Crime, its Consequences on Persons
and Property are Material Only to Determine the Penalty
Prior Conviction or Acquittal of Reckless Imprudence Bars
Subsequent Prosecution for the Same Quasi-Offense
Art 365 Imprudence and Negligence
Reclkless imprudence is a single quasi-offesnse
by itself and not merely a means to commit
other crimes such that conviction or acquittal
of such quasi-offense bars subsequent
prosecution for the same quasi offense,
regardless of its various resulting acts.
People v Belga (1957), Yap v Lutero
(1959), People v Narvas (1960),
People v Silva (1962), People v
Macabuhay (1966), People v Buan
(1968), Buerano v CA (1982), People
v City of Manila (1983)
Article 48 Does not Apply to Acts Penalized Under Article 365 of the
Revised Penal Code


PEOPLE vs. WEBB, et.al.
G.R. No. 176864 Dec. 14, 2010
Abad, J.

FACTS:
Sometime in June 1991, Estrellita Vizconde and her daughters Carmela and Jennifer were
brutally murdered in their home in Paraaque. In an intense investigation, a group of
suspects were initially arrested by the police, but were eventually discharged due to
suspicions of frame up. In 1995, The National Bureau of Investigation announced the
resolution of the crime as they presented Jessica Alfaro as a star witness who pointed at
the respondents, Webb et.al. as the main culprits. She also included police officer Biong as
an accessory to the crime. Relying on Alfaros testimony, information for rape with
homicide was filed by the public prosecutors against appellants, on which the Regional
Trial Court of Paraaque City took over the case. With Alfaros detailed narration of the
events of the crime, the court found her testimony credible, noting that her delivery are
spontaneous and straightforward. In January 2000, trial court rendered judgment finding
the respondents guilty as charged, imposing them the penalty of reclusion perpetua while
Biong, as an accessory to the crime, was given an indeterminate prison term. On appeal,
the Court of Appeals affirmed the trial courts decision, with only some modifications. A
motion for reconsideration on the same court was also denied, hence the present appeal
on the Supreme Court.
On April 20, 2010, the Court granted the request of Webb to submit the semen specimen
taken from Carmelas cadaver on DNA analysis, believing it is under the safekeeping of
the NBI. The NBI, however, denied that the specimen is under their custody and that it
was turned over to the trial court. The trial court on the other hand, denied the claim that
the specimen was under their care. This prompted Webb to file an urgent motion to
acquit denying Webb of his right to due process.

ISSUE(s):
1) Whether Webb was indeed denied of due process on the premise that the
semen specimen was lost under the care of the government and must immediately be
acquitted?

2) Whether Alfaros testimony is entitled to belief?

3) Whether Webbs evidences are proven sufficient enough to rebut Alfaros
testimony?

HELD:
1) No. Webb is not entitled to acquittal for failure to produce the semen specimen at such
stage. Due process does not require the State to preserve the semen specimen although it
might be useful to the accused unless the latter is able to show bad faith on the part of the
prosecution or the police (Arizona vs. Youngblood). Further, during the previous appeals
made on the appellate court, respondents expressed lack of interest in having a DNA test
done; and so the State cannot be deemed put on reasonable notice that it may be required
to be produced the said specimen for some future time.

2) No. Alfaros testimony was found doubtful. Her story lacks sense or suffers from
inherent inconsistencies. Testified by Atty. Sacaguing, he claimed that Alfaro was an asset
of the NBI since 1994. It is possible for Alfaro to lie even with such intricate details, given
that she practically lived in the NBI office. She claimed that she know someone who
knows about the massacre. But when she cannot present that someone, she said that she
might as well assume the role of her informant. Alfraro never refuted such testimony.

3) Yes. Among the accused, it was Webb who presented the strongest alibi. For alibi to be
credible and established it must be positive, clear, and documented. It must show that it
was physically impossible for him to be at the scene of the crime. Webb was able to
establish his alibis credibility with his documents. It is impossible for Webb, despite his
so called power and connections, to fix a foreign airlines passenger manifest. Webbs
departure and arrival in the country were all confirmed and authenticated by the Office of
the US Attorney General and the State Department.


LOUIS "BAROK" C. BIRAOGO vs. THE PHILIPPINE TRUTH COMMISSION OF 2010
G.R. No. 192935 December 7, 2010
REP. EDCEL C. LAGMAN, et al. vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.
and DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B.
ABAD
G.R. No. 193036
Mendoza, J
Facts:
For consideration before the Court are two consolidated cases
5
both of which essentially
assail the validity and constitutionality of Executive Order No. 1, dated July 30, 2010,
entitled "Creating the Philippine Truth Commission of 2010."
The first case is a special civil action for prohibition instituted by petitioner Louis Biraogo
(Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1
for being violative of the legislative power of Congress under Section 1, Article VI of the
Constitution
6
as it usurps the constitutional authority of the legislature to create a public
office and to appropriate funds therefor.
7

The second case, is a special civil action for certiorari and prohibition filed by petitioners
as incumbent members of the House of Representatives. .
President Aquino found a need for a special body to investigate reported cases of graft
and corruption allegedly committed during the previous administration. Thus, at the
dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission).
PTC is a mere ad hoc body formed under the Office of the President with the primary task
to investigate reports of graft and corruption committed by third-level public officers and
employees, their co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and recommendations to the
President, Congress and the Ombudsman.
Truth commissions have been described as bodies that share the following
characteristics: (1) they examine only past events; (2) they investigate patterns of abuse
committed over a period of time, as opposed to a particular event; (3) they are temporary
bodies that finish their work with the submission of a report containing conclusions and
recommendations; and (4) they are officially sanctioned, authorized or empowered by
the State.


Issues:
Whether or not Executive Order No. 1 violates the equal protection clause?
Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
Held:
Executive Order No. 1 should be struck down as violative of the equal protection clause.
The clear mandate of the envisioned truth commission is to investigate and find out the
truth "concerning the reported cases of graft and corruption during the previous
administration"only. The intent to single out the previous administration is plain, patent
and manifest. Mention of it has been made in at least three portions of the questioned
executive order
No matter how noble and worthy of admiration the purpose of an act, but if the means to
be employed in accomplishing it is simply irreconcilable with constitutional parameters,
then it cannot still be allowed. The Court cannot just turn a blind eye and simply let it
pass. It will continue to uphold the Constitution and its enshrined principles.
Perhaps a revision of the executive issuance so as to include the earlier past
administrations would allow it to pass the test of reasonableness and not be an affront to
the Constitution. Of all the branches of the government, it is the judiciary which is the
most interested in knowing the truth and so it will not allow itself to be a hindrance or
obstacle to its attainment. It must, however, be emphasized that the search for the truth
must be within constitutional bounds for "ours is still a government of laws and not of
men."

References:
4 http://www.worldlingo.com/ma/enwiki/en/Legal_formalism
4 http://law.jrank.org/pages/7913/Jurisprudence-Formalism.html
4 http://legaltheorylexicon.blogspot.com/2005/05/legal-theory-lexicon-043-
formalism-and.html


















































Topic: American Legal Realism
Mendiola, Mercado, Moner, Montevirgen, Pamatmat

JUDICIAL LEGAL REALISM
E -the realism in law is characterized by a healthy scepticism for the traditional
perspectives of law.
E about the role of rules, facts, and judicial opinions in the legal ordering of
society.
E Positivist and teleological
E Positivist-overdependence on the role of rules in the legal ordering of society
E Teleological- over-emphasis on the abstract postulates of natural law
E Legal Realists
E Re-examination of the problem of the nature of the law in terms of the relation
of legal rules and legal facts to the realities of the judicial process.
E What is skepticism?
E It is a method of suspended judgement, a systematic doubt
A. Intellectual Forbears(?)
E whoever hath absolute authority o interpret any written or spoken laws, it is
he who is truly the lawgiver to all intents and purposes, and not the persons
who wrote or spoke them
E Benjamin Hoadly, Bishop of Bangor.- dropped the seed
E It is emphatically the province and duty of the court to say what the law is
E 2 legal philosophers developed the concept of legal realism
Justice Oliver Wendell Holmes
Professor John Chipman Gray
E Chief Justicce Marshall
I. Human Law and Human Experiences
Criticized that natural law must be accepted by all because it is self-evident
Precept of Natural Law are so abstract that people are led to contradictory results by
them.
The concept of situational natural law is also rejected
the law is not a brooding omnipresence in the sky-Holmes
man is not made for the law but that the law is made by man and for men- Jerome Frank
E Justice Holmes
E Jerome Frank

The life of the law has not been logic, it has been experience
E The law draws its life from human experience and inter-experiences.
E The meta-legal realities had more effect than logic or reason
E It is not the will of the sovereign that makes the law but what the judges, by
whom it is enforced, says is his will. The judges have other motives for their
decisions, outside their own arbitrary will, besides the command of the
sovereign....
The Good Man or The Bad Man?
E If you really want to know the nature of the law you must not take it from the
point of view of the good man who desires to do what is expected of him but
from the view of the bad man who cares only for the consequences which such
knowledge enables him to predict what the courts will do to him.
Law vs. Morality
E Law has been defined as the a system of reason, deduction from principles of
ethics, or admitted axioms etc.
E But taking the view of the bad man he wants to know what the courts are likely
to do in fact.
E The prophecies of what the courts will do in fact, and nothing more
pretentious are what i mean by the law- Justice Holmes
E II. Separation of the law from its sources
E The law
E is not an ideal concept but something that actually exists. It is not that which
is in accordance with nature, or religion, or morality, it is not that which ought
to be but hat which is.- Professor Gray
Austin and Bentham
E Austin-law is the aggregate of the rules established by the political superiors
E Bentham-is an abstract or collective term; neither more or less than the
number of individual laws taken together
E Ordinary- means a statute passed by the legislature of a state
E The law is the whole system of rules applied by the courts
E that the law of the state or of any organized body of men is composed of the
rules which the courts law down for the determination of legal rights and
duties
E Statutes, rules and regulations, like customs and usages, are no more than the
sources of the law.
E Those are merely words that the legislature utters and it is up to courts to
interpret them.
E We can conceive of a society with judicial but no legislative organ. The courts
of such a society would follow rules derived by them from other sources, say
from former decisions of their own, or from customs.
E Difference between Gray and Austin
Austin failed to distinguish between the law and the sources of the law.
The idea of law as commands of the state is still open to further scrutiny since it is the
judicial organ of a politically organized society that gives he command its true meaning
and limits.
Judicial organ has the official say as to what is or what is not law therein.
E example
E Should a person insist that all agreements be reduced in writing?
E No! But the statute of frauds provides the contracts or agreements which
should be in written form are unenforceable if not reduced in writing.
E The statute of frauds
E When the law requires that the contract be in a certain form to be enforceable.
E Contracts which must appear in writing (I.S.D.A.)
Interest in contracts of loan, agreements regarding payment (art.
1956)
Sale of a piece of land or any interest therein through an agent (art.
1874)
Donation of personal property whose value exceeds five hundred
pesos ( art. 748)
Antichresis ( art. 2134)
E Must appear in a public document:
Donation of immovable properties
Partnerships where immovable property or real rights are
contributed to the common fund
Acts and contracts which have for their object the creation,
transmission, modification or extinguishment of real rights over
immovable property, sales of real property or of an interest therein
(art. 1358 no.1)
The cession, repudiation or renunciation of hereditary rights or of
those of the conjugal partnership of gains (art. 1358 no.2)
The power to administer property, or any other power which has for
its object an act appearing or which should appear in a public
document or should prejudice a third person (art 1358 no.3)
The cession of actions or rights proceeding from an act
appearing in a public document ( art. 1358 no.4)
E Must be registered
Chattel mortgages (art. 2140)
Sale/transfer of large cattle (cattle registration act)
The effect if not in the proper form?
the contract is unenforceable
CONSTRUCTIVE SKEPTICS
Characterized by a healthy skepticism about the role of :
1. Rules;
2. Facts;
3. Judicial Opinions;
In the legal ordering of society.
Jerome Frank(US Court of Appeals), Leader
1. Rule Skeptics
The critique leveled against the formalist approach to the problem of the
nature of law is two fold:
1. They questioned the notion of legal formalists that legal rules
can BE applied easily in any given case.
2. They dispute the claim that legal rules by themselves dictate the
result of a case.
The rule skeptics feel that legal formalism has shunted to the background the
relevant though inarticulate premises and uncommunicated reactions of those
involved in conflicts of interests namely, the parties, the witnesses , the
lawyers, the adjucating officials, and even the community itself.
Administration of Justice in the courts deals with complex and changing human
experience.
First step in the civilized administration of Justice: Man is not made for the law
but the law is made for man. -Jerome Frank
Legal rules are only sources of the law.
Legal rules tell something about the law but they do not constitute the law
itself.
Law is what the court says it is in concrete cases.
As to past decisions, legal realists make it clear that they are experimental
guides to for future actions of the courts.
Although some cases will be easy and can be disposed of by the application of
decisive rules or judicial precedents. The hard cases will no doubt require
creative approach that goes beyond mere applications of rules or precedents.
2. Fact Skeptics
Major cause of legal uncertainty is fact uncertainty.
There is a need for greater accuracy in the fact finding process in relation to
the task of predicting decisions with some amount of certainty.
There is no yardstick for measuring the accuracy of the findings of the facts by
a court in a contested case.
R x F = D
R = Rule
F = Facts
D= Decision
Thus, Erroneous F = Erroneous D
No matter how excellent the legal rules and the social policies they embody,
specific decisions will go astray, absent the competent fact finding.
The trial court should assume a large responsibility for the ascertainment as
near as may be, of the facts of litigated disputes.
3. Opinion Skeptics
A court opinion contains rationalization of the decision handed down in a case.
The opinion provides the basis for understanding why and how a decision was
arrived at and for evaluating its significance as a judicial guideline or
precedent in future similar or nearly similar cases.
Courts may and do make mistakes, when these mistakes occur, the opinion of
appellate courts will not even qualify as a source of law.
Every court opinion tends to become a law
Justice Holmes
Only that part of the opinion which addresses directly the
material facts and the decisive legal rules relevant to the
actual issue or issues. (ratio decidendi)
Courts may exercise judicial discretion when there are interstices or lacuna in
the statute in question to be filled.
ROLE OF MATERIAL FACTS
Material facts do not refer to all past acts and events.
Presented facts may be considered irrelevant
unrecorded facts may be considered
Peralta vs. Director of Prisons
Assumed the fact of good behavior of petitioner simply because
there was nothing to the contrary in the record of the case.
ROLE OF EXPERIENCE AND SOCIAL ADVANTAGE
Law is not the exclusive product of logic.
Justice Holmes concluded that logic has not been the life of the law,
for one can give any conclusion a logical form.
Buck vs. Bell
The issue involved is the constitutionality of a state sterilization
statute
Legal Realist: social advantage
Naturalist: social equality
Lochner vs. New Tork:
Issue: WON the enactment of the Bakeshop Act
constituted a legitimate exercise of police power
Held: No, it was not a legitimate exercise of police power
because the 14
th
Amendment protected the individuals
right to make a contract in relation to his business
(Justice Peckham)
Justice Holmes (dissent): the decision was based upon an
economic theory which a large part of the country does
not entertain. . . A constitution is not
intended to embody a particular economic theory . . .
ROLE OF METALEGAL STIMULI
Justice Holmes: (concept of law as) prophecies of what the courts will do in
fact and nothing more pretentious
Professor John Chipman Gray: the law is the whole system of rules applied by
the courts and that a law or a stature is only a source of the law
Formalist Concept: decisions are based on the doctrine of stare decisis
Realist Concept: decisions should be based on material facts of a case and not
just on jurisprudence
Justice Holmes: the felt necessities of the times, the prevalent
moral and political theories, intentions of public policy avowed or
unconscious, even the prejudices which judges share with their
fellow men, have had a good deal to do than the syllogism in
determining the rules by which men should be governed.
Courts may view a problem one way at one time and in a different
view in another time.
The point of the realist approach is that there are certain
unavoidable metalegal factors operating on the judicial personality
of the adjudicating officials.
Legal rules and material facts constitute only one of two quantities
that make up the law. The second quantity is composed of metalegal
stimuli.
METALEGAL FACTORS
Metalegal factors unavoidably affect the judicial process
Personal values and attitudes of judges influence their legal interpretations
and actions
Decisional behavior is very likely to be affected by them, obscurely or
articulately, unconsciously or avowedly
AS STATED Y JUSTICE GREGORIO PERFECTO:
Not all bias is harmful. No judge is required to be free from all kinds of prejudice.
To make the that requirement is to attempt an impossibility. . . . All judges have
prejudices. Each and everyone of the Supreme Court entertains some kind of
prejudice, whether political, moral, religious, artistic, economic, legal or otherwise.
Men are born with predispositions: and the process of education, formal or
informal, creates attitudes in all men which affect them in judging situations,
attitudes which precede reasoning in particular instances and which,
therefore, by definition, are prejudices
By putting on a black robe and taking the oath as a judge, a man ceases to be
human and strips himself of all predilections, becomes a passionless thinking
machine
METALEGAL FACTORS WHICH ARE ENVIRONMENTAL IN CHARACTER:
1. Stimulus set by the witnesses
2. Stimulus set by the lawyers
3. Stimulus set by historical events and political precedents
4. Stimulus set by social values and economic postulates
METALEGAL FACTORS WHICH ARE PERSONAL IN NATURE:
1. Stimulus set by the judges legal attitudes and prejudices
2. Stimulus set by the judges predilections and preconceptions
STIMULUS SET BY THE WITNESSES
Testimonies of the witnesses constitute the axis on which the decision of the
judge may turn
tongue of the witness is not the only organ for conveying testimony, gestures,
manners, moods, hesitations and grimaces are taken into consideration
A witness may be considered honest by one judge and be treated rascal by
another
STIMULUS SET BY LAWYERS
Professional Reputaion
- lawyers sincerity and inclination for the right and fair cases
- intrinsic validity of the lawyers theory of a case, his arguments on
the law and the material facts involved
O Professional Bearing stems from the lawyers respect and regard for his own
responsibilities as an officer of the court.
STIMULUS SET BY THE JUDGES LEGAL ATTITUDES AND PREJUDICES
Legal attitudes and prejudices affect judicial personality
The sum his inclination or bent on the matter in dispute
It is normal even for a judge to have a mental state or disposition
STIMULUS SET BY THE JUDGES PREDILECTIONS AND PRECONCEPTIONS
1. Judges legal sympathies
These are strong likings which arise fro a judges community of experience,
education, interests and even temperament.
It is likely that a judge might sympathize with a cause which is nearest to his
own views.
2. Judges legal antipathies
These are settled aversions or dislikes for certain legal or political theories or
ideas.
It is likely that a judge might oppose those that are farthest from his own
convictions or consider propositions or values from the social class which he
identifies.
Metalegal factors
(e) stimulus set by historical events and political precedents
- While generally transient are decisive in the judicial process
- Delegation of legislative over, vested rigths, due process of law, equal
protection of the law, civil liberties
Minersville School District vs. Gobitis, 310 US 586
Issue: whether the school children, like the Gobitis children, must be excused
in the promotion of national cohesion
Held: In a nearly unanimous decision of 8-1, the Court held that school
authorities could lawfully require traditional flag salute, regardless of honest
and conscientious objections that to salute the flag and recite the pledge of
loyalty and allegiance to the Republic for which the flag stands is an affront to
ones religious conscience and freedom
Minersville School District vs. Gobitis
Metalegal stilumulus set by historical and political precedents that simply
moved the justices to arrive at such a decision
this may be gleaned from the reference made by Justice Frankfurter to the
time of emergency that enveloped this case from beginning to end and from
the uncertainty of the Court in stating that religious freedom may be sacrificed
at the expense of national security and unity
Time of Emergency World War II
Time of Emergency World War II
The Gobitis claim to religious freedom and its exercise simply collided with the
interest of a nation already deeply involved in the 2nd World War. The
American way of life itself was at stake, the stakes were indeed high, in the
outcome of such time of emergency
The times of emergency played a far greater metalegal role than is admitted
in the decision is supported by Justice Frankfurters letter, dated may 27, 1940,
to Justice Stone on the day after the news of the defeat of the Belgian armies
and a week before the release of the decision on June 3
Soon members of the SC who participated in the case began to have
misgivings
Jones vs Opelika 316 US 584
West Virginia State Board of Education vs Barnette 319 US 624
Marcos vs Manglapus 178 SCRA 760
Petitioners in this case at bar raise thair inherent right as citizens of the
Philippine to return to their country of birth but also the protection of the
circumstances is in complaince with this bound duty. In the absence of a clear
showing that she acted with arbitrariness or with grave abuse of discretion in
arriving at this decision, the Court will not enjoin the implementation of this
decision
Stimulus Set by Current Social Values and Economic Postulates
By and largem the important cases that reach the courts are related to socio-
economic questions
The decisional behavior of a judge may be influenced by his o her social or
economic outlook
E.g. The notion of Property Relationshi
Northern Bands of Shoshone Indians vs. United States 324 US 335
SC held: (Justice Reed) under the terms and circustances of the Box Elder
Treaty of 1863 Shoshone Indians could not recover because the treaty did not
recognize the Shoshone Indians as having title to the land they claim
The US was only bound under the treaty to pay the amound of
$5,000 annually in exchange for the undertaking of the Shoshone
Indians
Northern Bands of Shoshone Indians vs. United States 324 US 335
Concurring (Justices Jackson Black)
this is a socio-economic, not a legal, problem because the Shoshone Indians did
not even have a word in their vocabulary for the concept of property relationship
Dissenting (Justices Murphy, Douglas, Frankfurter, Roberts)
unlike the US, the Inidan Chief Pokatello had had no legal counsel at his elbow
when the treaty was drafted
F. THE LAW AS THE PRODUCT OF JUDICIAL PROCESS
Mathematical formula: only to clarify the judicial legal realist view of the nature of the
judicial process
(jR x mF) x (mlS x jP) = L
jR jural rules
mF material facts; modification of the formalist concept of the judicial process, with the
qualification of the raw fact (rF) into material facts
F. The Law as the Product of Judicial Process
mlS metalegal stimuli in turn affects the jP
jP juridical personality
G. EXCLUSION OF THE LEGISLATIVE AND EXECUTIVE FUNCTIONS
Judicial legal realism excludes the legislative and the executive organs as
producing agencies of the law
John Chipman Gray
H. THE AJUDICATIVE PROCESS AS THE PRIME MOVER
In the judicial legal realism, the process that contros the activities of the
individuals or groups of individuals in a politically organized society is the law
uttered by the courts
I. THE LAW AND ITS PURPOSE
Realist school of jurisprudence has placed the emphasis on the judicial process,
it has nonetheless considered the administration of justice as the end of the
law






















































Critical Legal Studies Movement
(Critical Legal Realism)
Ong, Rabara, Rodriguez, Sacro

Sacro, Marielle Kriza T. (1F)

Beginnings
In the early 1960s, many of the founding member of CLS participated in social
activism
Most of the CLS scholars had been involved with the civil rights movement, Vietnam
protests, and the political and cultural challenges to authority
These events: contradict the assumption that American law was fundamentally just;
instead law seemed to favor the wealthy and the powerful

CLS defined
Seeks to fundamentally alter law exposing it as not a rational system of
accumulated wisdom but an ideology that supports and makes possible an unjust political
system
A revolutionary movement that challenges and seeks to overturn accepted norms and
standards in legal theory and practice exposes what it sees as its flaws
It is also a critique directed against the dominant liberal paradigm

The Law for CLS scholars
Proponents of this theory believe that logic and structure attributed to the law grew
out of the power relationships of the society.
The law exists to support the interests of the party or class that forms it
It is merely a collection of beliefs and prejudices that legitimize the injustices of
society
The wealthy and the powerful use the law as a means for oppression in order to
maintain their place in the social hierarchy
Leftist politics?
The law, in CLS scholarship, is a tool used by the establishment to maintain its power
and domination over an unequal status quo.
It is openly a movement of leftist politics which seeks to subvert the philosophical and
political authority of what is sees as unjust social system
It advances a theoretical and practical project of reconstruction of the LAW and
SOCIETY itself

Basic idea:
LAW IS POLITICS AND IS NOT VALUE FREE
HENCE, the CLS movement want to overturn the hierarchical structures of domination
in the modern society
Many of the scholars have focused on the LAW as a tool in achieving this goal.

Flaws in liberal theory and practice
CLS scholars argue that judicial objectivity is impossible because political
neutrality or philosophical objectivity cannot exist.
It strips the judiciary of its supposedly disinterested role in society
Accdg to Hutchinson (a CLS theorist):
The judicial emperor, clothed and coifed in appropriately legitimate and voguish garb by
the scholarly rag trade, chooses and acts to protect and preserve the propertied interest of
vested power
Dissatisfaction with liberalism
CLS scholars have a common dissatisfaction with the established legal and political
order and particularly for the liberalism that they see as the dominant political ideology.
WHY? Because liberalism describes the world according to categories:
Subjective-objective, male-female, public-private, self-other, individual-community, etc
CLS avers that these categories creates an ideology which furthers the interest of the
ruling class

It also decries the individualism which is fostered by liberalism
Hence, they call for a communal rather than individual values
They particularly object to capitalism as an economic system, and they see liberalism
as capitalisms greatest defender
MARXISM
Marxism defined
An ideology in which class struggle as a central element in the analysis of social
change
It is the anti-thesis of capitalism which is an ideology/economic system based on the
private ownership of the means of production and distribution of goods
A system in which the dominant feature is public ownership of the means of
production, distribution and exchange.
The society is the history of CLASS STRUGGLES
HISTORICAL MATERIALISM:
In order for human beings to sustain life, he should produce and reproduce the things
needed for survival
Thus, in order to carry out production and exchange, people have to enter into varied
social relations Production relations
BUT, human beings do not do the same work. Hence, division of labor and some people
live from the work of others by owning the means of production
Division of labor eventually resulted to division of classes
ERGO, the emergence of the Bourgeois and the Proletariat

Class struggles Capitalism
Capitalism, as the current dominant form of economic management, leads to the
continued gaining of benefits of the bourgeoisie at the expense of the proletariat
According to Marx, because of this continuous cycle of exploitation of workers, the
wrath of the workers towards the capitalists will increase. Proletariats will then revolt
against the capitalists and private property will be abolished.
Bourgeois concept of law and state
Their concept of law is but the will of the dominant elite erected into legislation,
Its essential character and direction are determined by material and economic conditions
of the existence of the dominant class
Marx sees the state as a set of institutions which maintain the capitalist system of
holding private property, for the punishment of those considered to be threats of the
established order, and for the coercion of the proletariat to wok in the service of the
capitalists. The state is nothing else but this domination and exploitation regularized and
systematized.
Marxs critique of liberalism
Marxism has demonstrated that liberalism is only a historical phase in the evolution of
the capitalist system and alternates with periods of severe reaction
Liberal regimes: growth of capitalist economy
COMMUNISM: eradication of the dominant class and abolition of private property
Marx championed the eradication of the dominant liberal bourgeois society and its
substitution by the socialist society expressing the interests and aspirations of the
proletariat
In the Communist Manifesto, Marx describes this as an egalitarian society wherein classes
do not exist. There will be no more class divisions since the means of production would
no longer be owned by a particular group.
The state, which is a former weapon of class oppression would then be replaced by a
rational structure of economic and social cooperation and integration (the commune).


Rodriguez, Francia Romlina (1F)

DECONSTRUCTION in Critical Legal Realism
- It is the technique of:
1) Tight analysis of the traditions of the dominant liberal paradigm
2) Reformation of the traditions of the dominant liberal paradigm
*Delegitimation the technique of unmasking the illicit tie between law and politics.
1. Tight Analysis/Trashing of the Traditions of the Dominant Liberal
Paradigm
Traditions ideas, beliefs, attitudes and propensities.
1. The contemporary social order is a free society for there is individual
initiative to undertake any business or enterprise.
The contemporary social order may be a free society, but it is not really a just
society.
Why? Social divisions and Economic hierarchies.
2. The underlying economic thrust of the contemporary social order in the
control, production, distribution and exchange of goods and credit is based on
free competitive conditions.
It is characterized by exploitative, individualistic and possessive propensities.
How? Through the subtle use of power and resources to eliminate
competitive conditions and create monopolies and cartels.
Roscoe Pound
Identified the error and sophistry of the dominant liberal paradigm as the
economic interpretation of the law imposed on society by the dominant liberal
class in furtherance, consciously or unconsciously, of its own interests.
Errors
Dominant Liberal Paradigm Social order structured in the form of CLASS
STRUGGLE.
Legal Positivism Will of the dominant social class on the basis of its own
interests.
Roberto Unger
Agrees with Pound that the dominant liberal paradigm reveal its class essence.
Mark Tushnet
Assessed that the dominant liberal social order indeed seeks the maximization
of its own interests and advantages.
Results of ERRONEOUS TRADITION by the Dominant Liberal Paradigm
1. The State organization of the dominant liberal class.
2. The Law instrument of alienation and oppression.
3. The Social Structure divided and hierarchied determined by irrelevant
inequalities.
2. Internal Reformation/Reformulation of the Dominant Liberal
Paradigm
How?
- a) Rationale and Justification for the Censure
- b) Transformation of the Liberal Legal Order
a) Rationale and Justification for the Censure:
To expose the erroneous traditions of the DLP
To open up its elitist discourse, agenda and practice which are hiding behind
jural constructs and categories which were posited by their authors to nurture
the law as an effective neutral means of social control.
*These jural constructs and categories have been abused and misinterpreted in the
dominant liberal paradigm.
Jural Constructs and Categories of the Legal Order in Philippine
Jurisprudence
(1) Rule of Law
(2) Separation of Governmental Powers
(3) Judicial Activism
(4) Popular and Liberal Concepts of Democracy
(1) THE RULE OF LAW
Aristotle the rule of law is preferable to that of a single person vs. Plato
the administration of a politically organized society by a philosopher king is
preferable.
Law is master + government is slave = situation is full of promise and men
enjoy all the blessings that the gods shower on a state.
Regnum reign and sovereignty
A government of laws and not of men.
It would be unwise for citizens to allow anyone to run the affairs of the
government without first strictly laying down the standards and limitations of
the exercise of governmental actions.
(1) THE RULE OF LAW
In its pure form:
- Limitation on the exercise of political power and economic
authority.
X License for arbitrary exercise of authority.
Purpose: To protect and insulate the people from the arbitrary will and subjective
decisions of those who exercise the prerogatives of power and wealth.
(1) RULE OF LAW
? Who is bound to obey and respect the law?
- EVERYBODY, including the government.
When the government, public officials and private individuals adhere to the normative
principle of the rule of law, the effectiveness of the law as a neutral instrument of social
control is indeed demonstrated.
Analysis of the Critical Legal Realists:
In the modern society, the rule of law has become a means of oppression.
The DLP has managed to conceal the struggle of the disadvantaged class to
obtain the benefits of basic equality promised by the constitution.
The DLP considers the rule of law as largely an inconvenience, a myth to be
winked at if not openly mocked whenever it stands in the way of a mission, a
project, or a program.
The rule of law in the hands of the DLP has not been used for the
empowerment of the people.
The rule of law has become another ideological and rhetorical ruse by which
the elite coteries within society transmit false consciousness to the already
disadvantaged segment of society.
The rule of law has been used by the dominant liberal paradigm to mask its
propensity to protect itself by preventing drastic changes in the form of
government and in the institution of private property both real and personal.
Carino v. Insular Government
FACTS: Plaintiff Carino filed a petition seeking the inscription in his name of some 146
hectares of land situated in the City of Baguio. He inherited this land from his ancestors
(Igorot). The Govt of the Philippine Islands then opposed the petition on the ground that
the land, being agricultural, was intended for public and military purposes of the
Government of the United States. The Supreme Court of the Philippine Islands
disregarded the petitioners evidence of immemorial occupation and use of the land in
question. The Court characterized the Igorot tribe to which the plaintiff and his ancestors
belong as uncivilized, implying that the Igorots have had no concept or idea of private
property, let alone the concept of ownership. Aside from these material facts, the plaintiff
and his ancestors were in possession of the land; held the land for more than fifty years;
lived on the land and devoted parts of it to agriculture and other parts to pasturage of
their animals; recognized by the Igorot people as possessors of the land according to their
customs and traditions. The SC of the Philippine Islands, through Justice Willard, ruled
that mere possesion of the land did not give plaintiff Carino title to it and that it cannot be
conclusively presumed that after a lapse of any number of years the Spanish Crown had
granted legal title to plaintiff. It was further held that the presumption of ownership
based on immemorial occupation and use could not be sustained because such a
presumption of fact is incompatible with the surrounding circumstances of the case,
namely, failure of the Igorot people to convert to the Christian religion, the failure of the
uncivilized Igorot people to take advantage of Spanish legislation which were issued from
time to time allowing them to obtain title over their lands.
ISSUE: Whether or not the decision of the SC of the Philippine Islands is in accordance
with the normative principle of the rule of law.
HELD: The Supreme Court of the US reversed the SC of the Philippine Islands. Justice
Holmes said it does not follow that as against uncivilized and savage tribes the rule of
law could then be ignored so that their country could be exploited for private gain. There
is no sufficient reason for denying that the principle of the rule of law was recognized in
the Philippine Islands and concluded that this requires the registration of the land in
question in the name of the plaintiff.
Lying v. Northwest Indian Cemetery Protective Association
FACTS: A project was awarded to a land developer for the construction of a road system
and harvesting of timber on the ancestral lands of three American Indian Tribes which
they consider to be sacred grounds. Notwithstanding the devastating effect upon the
cultural heritage and freedom of religion of the American Indian tribes, the development
project was upheld on the ground that there is no principle in the American constitution
that could justify the claim of the three Indian tribes.
ISSUE: Whether or not the American Indian tribes may claim protection with respect to
their cultural heritage and religious beliefs and on the basis of the normative principle of
the rule of law,
HELD: The Court said that the project in question did not create a hindrance on the
freedom of the three American Indian tribes to exercise their religion and religious
beliefs. Simply put, the development project did not penalize the exercise of religion of
the three American Indian tribes nor did it coerce them, directly or indirectly, to act
contrary to the sanctity of their ancestral lands or to their religious beliefs. On this basis,
the Court ruled that the claim of the three American Indian tribes cannot be afforded the
protection of the rule of law.
*In comparison to the decision of the SC of the Philippine Islands in the Carino case, there
was failure to apply the transforming norms of the rule of law to the profit motive of the
land developer.
*Evident in the criminal justice system.
(2) SEPARATION OF GOVERNMENTAL POWERS
Purposive Elements:
- To safeguard liberty by preventing the concentration of
governmental authority in a single person or body of persons.
- To ensure efficiency in the performance of governmental functions.
- To fix responsibility and accountability in the exercise of such
functions.
(2) SEPARATION OF GOVERNMENTAL POWERS
To the Critical Legal Scholars:
It has become the means to power and wealth by the dominant
liberal class.
The tendencies of the DLC to get as many of its members and
symphathizers appointed or elected to the different branches of the
government.
Eg. Political accommodations, shifting alliances, explanded franchises, big business in
government positions, interlocking directorships in goccs, economic trade-offs, ignored
or tolerated monopolies and cartels, exempted businesses from foreign investment laws,
political patronage, profit sharing.
JUDICIAL ACTIVISM
Rabara, Mario

Otherwise known as judicial legislation.
Courts have taken liberties with the statutory text either by:
Creating different rules or policies not fairly found or
implied in the statute.
Contradicting existing rules or policies and substituting
their own judgments for those of the elected legislators.
JUDICIAL ACTIVISM
Justice Oliver Wendell Holmes
courts legislate interstitially; they are confined from molar to molecular
motion.
While judicial activism cannot be avoided, nevertheless, such activity is proper only
when there are interstices or gaps in the text of the statute under question.

JUDICIAL ACTIVISM
based on molecular to molar motion
CONDEMNABLE on several grounds:
1. it reflects only the personal or collective prejudices of the judges on what the
legal rule should be;
2. it is an arrogant claim by a few unelected judges of veto power over legislation;
3. the legislators who are the representatives of the people are politically
accountable to them, not the judges with an almost lifetime tenure, are the
ones to make, modify, change, or repeal legislation;
4. courts should have no advantage over elected legislators and the former are to
put into effect legislation regardless of their disagreement with the wisdom of
the legislation, except when it is unconstitutional;
5. legislative facts and assessment of policy questions are entirely different from
judicial facts and consideration of actual cases; and
6. courts have no moral and legal bases to create or contradict rules or policies
merely on advisability.
JUDICIAL ACTIVISM
The indeterminacy of laws enacted by the legislature appears in two forms:
First, when they are vague.
Second, when they provide inconclusive guidance as to how persons
are to act in the performance of their obligations or in the exercise
of their rights.
JUDICIAL ACTIVISM
Judicial policy-making dulls the cutting edge of pure analytical reasoning.
Analytical reasoning is replaced by political reasoning whenever courts engage
in judicial policy-making.
When the emphasis on determinate rules are diminished in the adjudicative
process the result is NOT LAW BUT POLITICS.
POPULAR AND LIBERAL CONCEPT OF DEMOCRACY
The critique against the idealistic version of democracy is that it is awash with
inapt hope on and misplaced confidence in the majoritarian rule and the
theory of the consent of the governed.
For Critical Legal Scholars, this may appear to be democratic in form but not in
substance.
IDEALISTIC AND CYNICAL CONCEPTS OF DEMOCRACY
The critique against the cynical type of democracy is that the dominant liberal
paradigm has virtually gained control of the government as well as the
monopoly of the financial, production, commercial, and monetary
involvements of the country.
The dominant liberal class would argue that it has occurred only after hard,
rugged competition.

TRANSFORMATION OF THE
LIBERAL LEGAL ORDER

TRANSFORMATION OF THE LIBERAL
LEGAL ORDER
two basic means for transforming the liberal legal order dominated by avid
capitalism:
1) the norm of positive equality; and
2) the norm of democratic republicanism.
POSITIVE EQUALITY
traceable to Aristotle, who posited the concept of fair equality as a jural
postulate of natural law.
It has become the basis for the distribution of the social and material goods of
society depending upon individual effort and merit.
POSITIVE EQUALITY
NOT HYPOTHETICAL BUT CATEGORICAL
EGALITARIANISM. - Justice Jose P. Laurel
DIMENSIONS OF POSITIVE EQUALITY:

1) equality of opportunity;
2) equality before the law;
3) equality between values given and received;
4) the equable sharing of social and material goods on the basis of efforts exerted in their
production

DEMOCRATIC REPUBLICANISM
underscores the proper relationship that should exist between the legal order
and society in general.
defines the essential features of the social organization as well as the
individual rights and entitlements that the government must protect come
what may.

DEMOCRATIC REPUBLICANISM
NOT BE ONLY REPUBLICANIZED
established and organized for the purpose of deconstructing the
liberal order
BUT ALSO DEMOCRATIZED
eradication of social divisions and hierarchies and the return to the
people of their right to rule.
TRANSFORMATIVE CONTENT OF POST-
LIBERAL ORDER
(Ong, Ruth)
Roberto Mangabeira Unger
(b. 1947, Rio de Janeiro) is a Brazilian contemporary social theorist, politician, and law
professor at Harvard Law School.
He is the Harvard Law School's only South American faculty member.
He was associated with the Critical Legal Studies movement for a brief period in the late
1970s and early 1980s, although Unger has set forth his own criticisms of some of the
central ideas that emerged out of this movement, in particular the indeterminacy debate
in legal theory, which Unger calls the "radicalization of indeterminacy" in his own
writings.
Accdg. to Roberto Unger
Two considerations that must be taken into account in the conceptualization of the
transformed socio-legal order:

1) The post-liberal socio-legal order must not fall hostage to any faction therein; and
2) The transformed socio-legal order must always be alert for opportunities to eliminate
divisions and hierarchies in society.

Three transformative contexts:
1) The decentralization of government;
2) the reorganization of the market economy; and
3) the reconstruction of the system of rights

DECENTRALIZATION OF GOVERNMENT
ELEMENTS:
1) Accountability
2) devolution
3) effective and efficient decision-making
4) responsible and accountable party government




REORGANIZATION OF THE MARKET ECONOMY

divisible portions of the social capital
Two constraints:
- Possibility
- Rapid population
RECONSTRUCTION OF THE SYSTEM OF RIGHTS

In the post-liberal socio-legal order, new concepts of rights are introduced. These are:
1) The resistance right;
2) the destabilization right;
3) the solidarity right, and
4) the market right.

resistance right

- gives every individual persons authority to strive against and be able to repel
interferences with their vital security in the social and economic areas of life.

- Insures a form of immunity from the constant struggles of politics
destabilization right

- It is the extension of the equal protection of law principle in constitutional law
- Accdg. To Unger, this right insures that institutions do not accumulate power
that may insulate them from challenge and accountability.

solidarity right
- gives every individual members of the society the right to establish areas of
reliance among themselves.

market right
- establishes the limits of the claims which a person or group of persons may
make against capital available in society.
- enables every member of the society to question concentration of concessions
of natural resources in one individual or group of individuals.
- gives a person the conditional and provisional claim to the divisible portions
of the social capital established by the state.

NATURE AND FUNCTION OF THE LAW

- Accdg. To Unger, critical legal realism views the law as an instrument to
redeem the people from social divisions and hierarchies.
- Critical legal realism is an advocacy of the law law as a neutral and objective
means of social control with emphasis on its liberating function.










































































SCANDINAVIAN LEGAL REALISM

A largely instrumental and empirical approach to law developed in the first half of the
20th century in the USA (American legal realism) and Scandinavia (Scandinavian legal
realism). It rejects the view that law is a determinate body of doctrine or that precedents
and statutes determine the outcome of legal disputes. Although the critical legal studies
(CLS) movement is often described as its heir, the two movements have little in common
apart from their critical approach; in important respects, CLS extends well beyond the
skepticism of its alleged progenitor.

Legal Realism is?

Legal realism is not concerned with what the law should be, rather what
it is. A legal realist would react to the situation you describe by saying that the
law IS: when this officer pulls over a speeder whose son is having a life-
threatening seizure, he will escort them to the hospital prior to issuing a
citation.

Positivists argue that the law can be separated from morality. They believe that
laws are laws because they are put in effect by people with the authority to do
so. There is not necessarily an ethical component. The part of example where
the officer issues a citation at the hospital would probably interest a positivist.

Doesn't Legal Realism have facets of both Natural Law and Positivism in it?

Yes and no. It has aspects apparently reminiscent of legal positivism and
natural law, but it rejects both those positions. It rejects legal positivism because it
minimizes the importance of what is posited in precedents and statute books. And it
rejects natural law because it makes no claim that morality is the governing criterion for
laws. Morality is of course one factor upon which judges can make their decisions (just as
it is one factor upon which parliaments can base their legislation) but it is by no means
the only such factor.

What is the difference between Legal realism and Critical Legal Theory?

Legal realism is a family of theories about the nature of law developed in the
first half of the 20th century in the United States (American Legal Realism) and
Scandinavia (Scandinavian Legal Realism). The essential tenet of legal realism
is that all law is made by human beings and, thus, is subject to human foibles,
frailties and imperfections.

Critical legal studies refers to a movement in legal thought that applied
methods similar to those of critical theory (the Frankfurt School) to law. The
abbreviations "CLS" and "Crit" are sometimes used to refer to the movement
and its adherents. Overly simplified, Crit postulates notions such as: Law is
simply politics. Legal language is a false discourse that helps perpetuate
hierarchies: Man over women, rich over poor, majorities over minorities.


What is American Legal Realism?

According to ALR, "the law is a prediction of what a court will do" or "the law is
whatever the court says it is in that present occasion."


SCANDINAVIAN LEGAL REALISM

Scandinavian realism. Scandinavian legal realism, like American realism, regards law as
an empirical fact. However, American realists treated law as a kind of behavior of a
certain social group, consisting of people professionally preoccupied with resolving
conflicts; Scandinavian realists, on the other hand, searched for the essence of legal
phenomena in the psychological reactions of individuals. Hence such concepts as
law or obligation are regarded by Scandinavian realism as psychological facts.
The father of this school, Hgerstrm, deems valueless all ideas and concepts that are not
developed within the context of what is real. Therefore, the world of norms and rules
propounded by natural law, or by legal positivism is unacceptable. Concepts such as
law, obligation and validity are purely metaphysical without a reference to empirical
facts. They make sense only if we associate them with concrete emotions or psychological
reactions caused by the use of such notions. Lundstedt and Ross are among other
representatives of the Scandinavian school.

Scandinavian Jurisprudents

1. Axel Hagerstrom (1868-1939)
2. Vilhelm Lundstedt (1882-1955)
3. Karl Olivecrona (1893-1963)
4. Alf Ross (1894-1974)

From his understanding of what constituted reality, Hgerstrm found out that not
only traditional but also contemporary jurisprudence was full of ideas, which did not
correspond to reality. Put differently, jurisprudence was full of metaphysics. This was, he
argued, a nuisance. The metaphysics should be weeded out. Concepts like state, rights
and validity are examples of metaphysical concepts that are useless in scientific thinking.
Hgerstrm also argued that value judgement e.g. that something is good, bad, right and
wrong etc. are illusory, they are rather expressions of emotions given by a subject
regarding and object. Hence, a statement that claims something to be morally right or
wrong is only an illusory statement. By consequence, naturalist claims about a natural
law as something that objectively can be determined becomes undermined (Strmberg
1989, p. 65f).

In his criticism of the legal science, Hgerstrm also argued against ideas
advocated by Legal positivism, especially the idea that positive law, ontologically
speaking, could be understood as an expression of the will of the state and that rights and
legal obligations are constituted by legal rules, understood as commands from the state.
The state is a social construction, nothing more, nothing less. It does not have a will, nor
does it administer any commands. Moreover, the theory of law as an expression of the
will of the state is also undermined by the fact that the organisation of the state is
determined by legal rules. Nor can legal rules be an expression of the will of the
individuals in power. Obligations and rules of action are also social constructions and
they cannot come into existence by pure actions of will. Legal rules are rules of action.
The fact that legal rules to a great extent are decisive for human action cannot be
understood as if obligations are created by a, within the rules existing, will. It is rather a
complicated psychological process (including the will, can and understand of the
agents) that makes the legal rules effective (Baaz 1999, 2002, 2008, forthcoming 2010).

In this process/mechanism, notwithstanding, the agents apprehension of
rights and obligations plays a crucial role (Strmberg 1989 pp. 66f). If one follows
Hgerstrm and denotes statements regarding individual (natural) rights as
metaphysical statements, as statements that cannot be determined true or false, this
should not be understood as an automatic denial of the existence of the right. The
opposite, namely that individual human beings does not have e.g. a natural right to life, is
also a metaphysical statement, neither true nor false. Hence, from being a theoretical
value nihilist does not follow moral indifference, on the contrary. The logical consequence
of Hgerstrms position is that in situations in which moral values compete, rather than
arguing in favour of a specific opinion, one should instead argue in favour of tolerance
and moderation. Hgerstrm noted that the natural law position on IL resulted in
unnecessary antagonism between states and obstructed rational and reasonable
agreements between them (Strmberg 1989, pp. 68f).

Hgerstms disciple, Wilhelm Lundstedt (1882-1955), became famous for, on
the one hand, his criticism of IL, which he regarded a discipline inundated with natural
law relics and pious hopes, and, on the other hand his view on the public welfare. In the
intellectual wake of Hgerstrm and Lundstedt worked Karl Olivecrona and Alf Ross.
Olivecrona argued that instead of understanding the legal rules as an expression of the
will of the state, they should be understood as independent imperatives, or, in other
words, as commands without any commander. By the same token, Ross argued that the
binding force of legal rules should be understood as social psychological phenomenon,
influenced by society as well as self-interest (Baaz 2009b, Bring and Mahmoudi 2007, p.
30).

Critique of Judicial Legal Realism

According to Alf Ross, the perceptions of Holmes, Gray and Frank that the law
is indefinable w/o dealing with the environment and predispositional metalegal factors
operating in the judicial process suffers from the failure to separate the issue of validity
from the question of reality in the judicial process. The point raised by Ross is that
there is over-reliance on the role of the metalegal stimuli in the judicial process
and overemphasis on the vicissitudes of fact-finding in the courts.

Critique of Legal Ideology

According to Lundstedt, the insistence of legal realism on certainty and
predictability in the legal order, commendable though it may be, is relatively less
problematic than the danger posed by legal ideology. The peril to be avoided in legal
ideology is that its intellectual patterns are abstract and vague. In other words, legal
ideology does not have a fix meaning but depends on the preference of its
proponents and interpreters.
Olivecrona adds that the propensity to objectivize values in the analysis of
the nature of the law and its component system of jural relations gives the wrong
impression that such values have real basis when there is none.

Nature of Law

Lundstedt states that the legal activities that is to say legislation, execution of
statutes, and adjudication of cases are essential to the social order, and to assure the legal
ordering of society the law and its component jural relations must be based on the
felling for justice prevalent and current within society. This is different from the
concept of justice propounded by the natural law philosophers which indicates or points
to the one and only solution.

Thus, for phychological legal realism, the law and its component system of
jural relations are real because they are social facts. The evaluation is no longer left
to axiological criteria but to the feeling of what is good for the society. However, the
judgment of value involved is problematic.

Lundstedt explains that the feeling for what is good for society is not an
abstract criterion but a fact of conscious behavior since it is psychologically real.
Olivecrona adds that the reality of law and jural relations as social facts is based on the
general human feeling that what is good for society is paramount. As Olivecrona puts it,
laws involved behavioral patterns since they deal basically with the exercise of
rights and the performance of obligations.

What are the comparison and contrast between American Realism and
Scandinavian Realism?

American realists believed that individuals had limited capacity in decision
making because of their limited position in the world. This can be compared to American
romanticists who believed in how individuals could accomplish as much as they wanted,
and American naturalists who believed individuals had no free will whatsoever.
Effectively, this place American realists in a sort of moderate position.

Scandinavian realism, on the other hand, is a legal school of thought which refers to how
empirical evidence should guide the law, not metaphysical ideas. Effectively, this made
them positivists because they did not generally carry a gloomy viewpoint of the world
although they also did not believe in substantial power being allocated to the human will
and spirit (to the point that the opposed personal property).

CASE:

Primitivo Ansay, etc. et.al.
v. The Board of Directors of the National Development Company, et.al.

Appellants filed a complaint praying for a 20% Christmas bonus. Appellees filed a
motion to dismiss. CFC ruled that petitioners have no cause of action to secure such
bonus.

A bonus is an act of liberality.
The court has no power to compel a party to comply with a moral obligation.

Appellants filed a motion for reconsideration but was denied, hence this appeal.
Appellants contend that there exists a cause of action in their complaint.

Issue:
Whether or not the company is obliged to give 20% bonus since the claim of the
appellants rests on moral grounds or what is defined by law as natural obligation

Held:
Natural Obligations are those based on equity and natural law, which are not enforceable
by means of court action, but which after voluntary fulfillment by the obligor, authorize
the retention by the obligee of what has been delivered or rendered by reason thereof.
These refer to obligations without sanction, susceptible of voluntary performance, but
not through compulsion by legal means.

Case Analysis:
Scandinavian Legal Realism views the law as the means of regulating human behavior
based on the feeling for what is best for the social welfare. They believe that legal
ideology has no place in the conception of the law and its component jural relations. The
conventional concepts of right and obligation are verbal magic.




















































POLICY SCIENCE
(Sy, Tago, Tanael)

The Yale Approach
Policy oriented approach was launched at Yale University by Prof. Harold
Lasswell and Prof. Myres McDougal
Purpose: to move away from the value-free approach of legal positivism
LEGAL POSITIVISM
Law is a complete set of norms and rules of action which excludes from its
specific concerns value creation, clarification and realization.
POLICY SCIENCE
Law is adequate if it does not take into account the goal values and policy
guidelines to which the society is committed.
View:
Application of social values in the global, regional and national levels of public
orders cannot be ignored.
Social values - certain qualities and beliefs that are shared within a specific
culture or group of people. These traits can be religious, economic, political,
etc.
- The standards by which one operates or understands as an everyday
function.
What is policy science?
Discipline concerned with the formation, clarification and realization of social
values.
Policy Science Jurisprudence
Law is an instrument of SOCIAL ORDERING

Four Salient Features:
1. Reaction to apathy towards social values:
- The realization of the policy oriented approach to the study of the nature
and function of law is hindered by the failure to relate social values to
legal education.
2. Movement away from ontological jurisprudence
- Value-free approach of legal positivism to the study of the nature of the
law is a dangerous view.
- Policy science jurisprudence posits the view that something more than
the positivists and realist theories of law is necessary.
3. Emphasis on human rights
- Emphasizes the right to life, liberty, equality, property, education,
security, and the free exercise of the mind.

- Movement away from the slogans, doctrines and structures of depotism
towards the symbols and practices of a free society.


4. Movement for the universal recognition of social values
- Policy science jurisprudence seeks the universal identification of the
social values, that is to say their promotion, recognition and enjoyment by
all persons everywhere.
- Survival of humanity through the universal identification and recognition
of the social values.
Policy process
1. Value CREATION;
- Recognize human desires
2. Value CLARIFICATION;
- Task of reassessing the worthfulness of human desires in light of their
meaning and importance to the society
3. IMPLEMENTATION of social values.

BASIC SOCIAL VALUES:
THE SOCIAL VALUE POWER
A political mechanism for the good of the society which reflects the will and
choice of the people as a whole and not just that of the leader.
Must be considered in terms of:
Forms of authority and facts of social control:
Distribution of the exercise of the social value power in a politically
organized society.
1. Government
2. Pressure organizations
3. Private Business Enterprises
4. Cultural Organizations
Aspects and Referents
Power has a two-fold meaning or aspects:
1. The capacity to secure and maintain fundamental human rights.
2. Competence to make decisions without any undue interference from any group
or form of authority.
Social Value KNOWLEDGE
A. Purposive Norms: (2 basic purposes)
1. To dispel misunderstanding; and
2. To eradicate ignorance.
(1) General aspect:
Means the widespread understanding among peoples of different
cultures and backgrounds.
Freedom in pursuit of truth. (falsehood and disinformation is
injurious and fatal to both the individual and national development)
Maintenance of the right to think and the right to private judgment.
(2) Particular aspect: (2 distinct meanings)
1. Signifies the emancipation (liberation) of the mind through
education and instruction at all levels according to talent and
ambition.
2. Cognition and appreciation of how democratic ways and
processes work, and having found how they work, how they can
be continued to work better.
B. Tendential functions
There are three tendential functions of KNOWLEDGE for each
general progress:
1. Cultural progress
2. Moral progress
3. Political progress
4. Economic progress
THE SOCIAL VALUE RESPECT
Regard for life and esteem for the dignity and worth of human personality.
A. Regard for life and limb
- Free and unharmed possession of the complete body.
B. Regard for Human Personality
(1) Positive Phase:
- Freedom from any kind of discrimination
- Equal opportunity
(1) Negative Phase:
- individual initiative, choice and determination are restricted or
interfered with.
As much as possible, respect for human right and freedoms should be
always restored.
THE SOCIAL VALUE INCOME
It means the economic betterment of the people, adequate provision for a high
employment level, freedom to unionize and bargain collectively, efficient
method of production and wise consumption of goods and services, and raising
of the plane of living
Social value Income denotes:
1. Freedom from Want
2. Conservation of natural resources
Freedom from Want
Equitable sharing of surplus revenue or profit:
Collective bargaining and labor unionization

Conservation of Natural Resources
Natural resources are the wealth that provide community with the means of
sustaining its economy and in turn provide for the satisfaction of human wants.
THE SOCIAL VALUE SAFETY
Represents and signifies public protection, pubic health, social security and
peace and order.
A. Public Protection
- Simple and Complex measure of public protection.
B. Public Health
The important thing is education in health which involves attitudes
and habits of healthful living.
C. Social Security
The measures of social security should take into account aid for the
unemployed and financial assistance for the aged.
D. Peace and Order
- Peace and Order are channeled in two directions:
1. Eradication of friction and conflict
2. Promulgation of specific rules.
THE SOCIAL VALUE LIBERTY
In the physical context, liberty means security from restraints or
freedom of the body from external physical compulsion
Due process of Law
It was taken as a positive qualification on governmental excesses in
the exercise of the power of taxation, the power of eminent domain,
and the police power.
From the standpoint of human existence, the social value Liberty has a certain
constituent parts, namely;
- Personal liberty, religious liberty, civil liberty, political liberty, economic
liberty and national liberty.
A. Personal Liberty
- There are two aspects of personal liberty, namely;
Freedom of a person in coming and going from one place to another.
Security of the body from injuries
B. Religious liberty
Separation of church and state
Religious tolerance- the state should not enact laws endorsing or
aiding one religion or another nor enact laws supporting all
religions in general.


C. Civil Liberty

Embraces fundamental exemptions and immunities which have to
do with property, marriage, family and education.
They are secured and safeguarded in constitution for the
enjoyment of the people.
D. Political Liberty
The right of the citizens of an organized civil society to influence and
participate in the management and operation of pubic affairs and
political process.
E. Economic Liberty
- Two main parts of economic liberty:
Production is the creation of goods and services for the
satisfaction of human wants.
Consumption is the process by which services and goods are used
in the satisfaction of human wants.
- Economic liberty means:
The privilege of choosing and preparing for and engaging in any
profession, business, industry, employment, trade or vocation.
The privilege of acquiring, holding, using, consuming, controlling or
transferring services, property, or goods of existence.
F. National Liberty
Autonomy or right of determining and establishing the form of
government which the people considers best in safeguarding its
values and rights.
The task of discharging properly its external obligations and
contributing to the maintenance of lasting peace and security.

THE SOCIAL VALUE EQUALITY
Negative aspect:
- Equality is not absolute similarity. Among the natural differences are
race, sex, satus, energy, ability and aptitude.
- Equality is not an assurance that everyone shall, as a matter of fact, be the
same in all relations.
1.) Jural inequality
- Differences or inequalities are jural when they are material and relevant to
the legal ordering.
- Equality can be realized even when inequalities are considered provided
they are jural in nature.
- If inequality is material or relevant t the legal ordering of society, then the
principle of equality is not violated.

2.) Invalid view of equality
- The clamor for absolute equality stems from the false and incorrect
perception that equality means similarity of all in matters of social
relationship.
- If equality is take to mean the obliteration of all educational, proprietary,
aesthetical, or volitional distinctions and differences, then the equalizing
process would mean the levelling of all down to the lowest rung. If there
should be leveling, it should be upwards not downwards.
Positive aspect:
- All men are equal means that each persons well-being and happiness is
as secure and inviolate as that of every other person.
- Equality is quite decisive in the sense that everyone has a rightful claim to
equal treatment and protection of the law regardless of any
inconsequential and insignificant disparity.
CONSTITUENT PARTS
- John Rawls
- Two underlying principles of equality
First, The equal right of everyone to the total system of basic liberty.
Second, Fair equality in opportunities to offices and positions in order to
heighten the chances of those with lesser chance or opening.

These principles were applied in the cases of Guido vs Rural Progress Administration and
Republic of the Philippines vs Baylosis
Social justice and the constitution do guaranty are equality of opportunity,
equality of political rights, equality before the law, equality between values
given and received, and the equitable sharing of the social and material goods
on the basis of efforts exerted in their production.
1.) Equality and Balance Before the Law
- All individuals have a rightful and lawful expectation to the same treatment
and protection of laws without regard to persons involved.
A.) Simple type
There is still equality and balance before the law even when disparities
affording a proper basis for distinction are involved.

Brown vs Board of Education
- Racial inequalities in separating white and black children in public
schools is immaterial notwithstanding the fact that the facilities in the
segregated schools for whites and blacks are the same.

B.) Distributive Type
Apportionment of benefits and burdens that can be shared among the
members of society. Here the law cannot set aside or disregard relevant
inequalities.
Measures and enactments containing discrimination or inequality may be
tolerated or allowed in society if the basis of the classification is reasonable.

People vs Vera
- There is no violation of the equal protection clause when:
a.) there is substantial distinction;
b.) it is germane to the purpose of the law;
c.) it is not confined in existing conditons; and
d.) it is applied to all members of the same class.
2.) Equality and Balance of Opportunity
- This means equal condition and equal access to the effective expression of
individual merit toward success or even failure.
3.) Equality and Balance of Rights and Freedoms
- Human dignity is the basis of this particular aspect of the social value
equality.
- The primal rights are: 1.) the right to life, liberty, security, and property, 2.)
the right to religion, 3.) the right to education and free exercise of the
mind, 4.) the right to free expression, and 5.) the right to peaceably
assemble for the redress of grievances.
- The equalization and balancing of all these rights canot be accomplished by
indiscriminate imposition of irrelevant inequalities. Nor can equality
and balance in the enjoyment of these rights occur if such right are
granted to certain person to the prejudice of others.

People vs. Vera
The probation act being applicable only to certain provinces while another
person similarly situated in another province would be denied of the same
benefits.

Yick Wo vs. Hopkins
A law requiring receipts to have a translation from Chinese characters to the
English language is invalid for it is only directed against the Chinese in San
Francisco.

4.) Equality and Balance of Political Value
- This means that every individual must count for one and only one in
political participation without regard to person.
- One individuals political value should be counted no more and no less than
that of another.
- If there be persons that could count for more or less than others, there would
no longer be any assurance that individuals would be able to enjoy their rights
and freedoms























































































CRIMINAL LAW THEORY
(VIllarin, Anzo)

I. INTRODUCTION: WHAT IS CRIMINAL LAW?

As this paper scrutinizes the legal philosophy behind criminal law, it is imperative
to know first the definition of criminal law.

An on-line legal dictionary defines criminal law as body of rules and statutes that
defines conduct prohibited by the government because it threatens and harms
public safety and welfare and that establishes punishment to be imposed for the
commission of such acts.
1


According to Sutherland, The criminal law is a body of specific rules regarding
human conduct which have been promulgated by political authority, which apply
uniformly to all members of the classes to which the rules refer, and which are
enforced by punishment administered by the state
2
.

While the most popular definition in the study of our own Revised Penal Code
states that criminal law is the branch or division of law which defines crimes,
treats of their nature and provides for their punishment.
3


Note that the common denominator of the above definitions is the word
punishment, which is the most important concept in criminal law. In fact, it is the
very essence and the distinguishing factor in defining said branch of law. Unless
there be a particular provision in the penal code or special penal law that defines
and punishes the act, even if it be socially or morally wrong, no criminal liability is
incurred by its commission.
4
Thus the saying that there is no crime to speak of
when there is no law that punishes it.







II. THE THEORY OF CRIMINAL LAW

Now that we have defined criminal law, this paper will now dwell on the different
theories and the justification of punishment in criminal law. This part will address
the difficult question of Why Punish? This will also tackle the principal theories
of criminalization and the circumstances in which the criminal law should or

1
http://legal-dictionary.thefreedictionary.com/Criminal+Law
2
Sutherland, E. H. et. al., Principles of Criminology1992, General Hall,
page 4
3
Reyes, L. B. The Revised Penal Code, 2008, page 1
4
U.S. vs. Taylor, 28 Phil. 599, 604
should not be used to prohibit conduct. That is, there will be a presentation of the
analytical theorists (or those who seek to explain the concept of criminal law and
other concept) as well as the normative theorists (or those who seek an account
on not just what a criminal law is, but what it ought to be and whether it ought to
be at all).
5


A. Criminal Law and its Nature

i. John Stuart Mill and the Harm Principle

As a disciple of Jeremy Bentham, John Stuart Mill was a utilitarian
and based his ethical views on whatever is the greatest good of
society.

Thus, it follows that Mills principal tenet on harm principle, which
emerged in the nineteenth century and which has become an
influential role in criminal law, is that the only purpose for which
power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others
6


Mill, being a liberalist, argued that the principle of liberty requires
that the only acceptable reason for criminalizing behavior is that it
causes harm to others. Thus the criminal law should not be used to
control non-harm behavior or to prevent a person from harming
themselves.
7



5
Moore, M.S. (1993), Act and Crime, Oxford: Oxford University Press
6
Mill, J.S. (1859), On Liberty, London: Parker
7
Ashworth, A.J. (2006), Principles of Criminal Law (5
th
Edition), Oxford:
Oxford University Press
This so-called harm principle, whilst founded upon and respects the
individual freedom and autonomy, also aims to address the principal
concerns of the state.

However, the downside of this theory is on the question of what
constitutes harm to others? Does this only pertain to bodily injury?
Or would this embrace personal injury such as libel or slander? It
may be that what some people think as harmful to them may just
be mere trivialities to others. Hence, with such broad and
unrestricted concept, the harm principle proves to be controversial
and notoriously difficult to apply. It is also said that the harm
principle fails to set a tight constraints on the scope of the criminal
law.
8


The other problem with the harm principle is that it mainly focuses
on individual harm rather than harm to the community. Hence, this
implies that where there is no direct harm to humans, state
intervention is not justified. This precludes the use of criminal law
to address non-anthropocentric issues such as environmental
degradation and animal cruelty.


ii. Joel Feinberg and the Offense Principle

Because of the loophole in Mills harm principle, Joel Feinberg
proposed the Offense Principle, which is a broader concept of
harm that encompasses a setback to a persons interest and permits
prohibitions which are necessary to prevent serious offense to other
persons.

This is deemed to be an expanded notion of harm because it
comprehends conduct which causes indirect or remote harm to
others. An example of this is criminal regulation of obscene
publications because such publications cause harm, though
indirectly, by increasing the likelihood of sexual assault and
perpetuating discrimination against women.
9


Accordingly, Feinbergs offense principle arises because of the need
to augment the harm principle. As Feinberg himself stated: "It is
always a good reason in support of a proposed criminal prohibition
that it would probably be an effective way of preventing serious
offense (as opposed to injury or harm) to persons other than the
actor, and that it is probably a necessary means to that end".


8
Holtug, N. (2002), The Harm Principle, Ethical Theory and Moral
Practice 5: 357
9
Supra.
By "offense," Feinberg intends a subjective and objective element:
the former consisting of experiences of an unpleasant mental state
(for example, shame, disgust, anxiety, embarrassment); while the
latter consisting of the existence of a wrongful cause of such a
mental state.
10



iii. Judge Lord Delvin and Legal Moralism

The alternative to criminal law as prevention and deterrence of
crime is the idea that criminal law should punish only behavior
which is morally wrong. On this view, Judge Lord Delvin argued that
the function of criminal law is to punish conduct which threatens or
undermines the common morality.
11


Devlins own view came to be called legal moralism because of the
belief that one legitimate use of the criminal law is to enforce the
moral values of the community, even if these values have little or
nothing to do with the kinds of harm that Mill had in mind.
12


But the difficulty in this belief of common morality is that in a
modern cultural society such as ours, it is difficult to discover a
shared moral position within the community on many issues, like
abortion, pornography and violence against women.



For a legal moralist, a crime is an immoral act, and accordingly that
all and only immoral acts ought to be punished. They believe not
only on the notion that every crime is in some way an immoral act,
or that it tends to produce an immoral act, but also that there are no
immoral acts that should go unpunished.
13

However, if this is the case then there is one class of crime which
appears to pose a problem with this theory, namely the crimes of
mala prohibita. These are acts which are in themselves, not criminal
but are only made criminal by the legislature. This is in contrary to
mala in se, which are crimes that are wrongful from their nature and

10
Feinberg, J. (1985), Harm to Others, New York: Oxford University Press
11
Supra
12
Murphy, J., Legal Moralism and Retribution Revisited
13
Crime: Definition Non Positivist Approach
http://law.jrank.org/pages/778/Crime-Definition-Nonpositivist-
approaches.html
are inherently immoral as to call for the unanimous condemnation
of society.
The legal moralists has difficulty with the distinction between the
afore-cited classes of crimes, because they seem to regard all crimes
as mala in se or immoral act that justifies prohibiting it under the
criminal law.
Some offenses certainly do have a moral dimension (such as crimes
mala in se). But at the same time, there are a great many offenses
which do not have a moral purpose such as offences dealing with
motor traffic and environmental matters (which pertain to crimes
mala prohibita).
14

To solve this problem, legal moralists sometimes claim that the acts
they prohibit are instrumentally related to an act or state of affairs
that is mala in se. For example, while it is not immoral to drive on
the left rather than on the right, it is immoral to impose grave risk of
injury on one's fellows. In this way, the legal moralist explains the
law mandating driving on the left, in the United States, or on the
right, in Britain, as a necessary prohibition in order to avoid the
truly immoral act of plowing into cars coming in the opposite
direction.




iv. Gerald Dworkin and Legal Paternalism

The eighteenth century Philosopher and Legislator, Jeremy Bentham
divided all laws into three: (1) laws designed to protect you from
harm caused by other people; (2) laws designed to protect you from
harm caused by yourself; and (3) laws requiring you to help and
assist others. Among these three, Bentham was of the opinion that
only number one is legitimate. The second kind is what we call the
good Samaritan law. Whereas, the third kind is called paternal
legislation and the view that such laws are legitimate and ought to
be passed is called legal paternalism.

Legal paternalism is the view that the law should sometimes require
people to act against their will and for their own good, as a
protection from the undesirable consequences of their own actions.
Accordingly, the State should protect its citizens, not only against
harm inflicted on them by other citizens but also against harm

14
Supra.
which they might inflict on themselves. Such act is comparable to a
kind father who protects his children against harm and danger.
15

As Gerald Dworkin, a proponent of Legal Paternalism, describes it, a
paternalist interference is an "interference with a person's liberty of
action justified by reasons referring exclusively to the welfare, good,
happiness, needs, interests or values of the person being coerced".
16

However, the above views are opposed by the Libertarians,
believing that people should absorb the consequences of their own
actions and that in any case the State has no right to legislate what
people should do as long as their actions harm no one else.

15
Hospers, J., Libertarianism and Legal Paternalism, The Journal of
Libertarian Studies, 1980
16
Dworkin, J. (1972), "Paternalism," The Monist, vol. 56, pp. 64-84.
In response to this, Dworkin maintains that the attainment of said
basic goods can legitimately be promoted in certain circumstances
as there are paternalistic legislations to which fully rational
individuals would agree.

B. Criminal Law and its Rational Basis: Justification of Punishment

In general, the following are the main purposes by which punishment in
criminal law may be justified:

1) As a Retribution

Accordingly, punishment is imposed to effect retribution or revenge
to the wrong doer. This is also deemed as the classical theory, the
basis of which is mans free will to choose between good and evil,
that is why more stress is placed upon the result of the felonious act
than upon the criminal himself.
17
This theory sees people as
rational. If they know that punishment is swift, certain, just, and
sufficiently severe, they will decide to obey rather than violate the
law.
18


This theory may also be regarded as the doctrine of legal revenge or
vindication by punishing the wrong-doer merely for the sake of
punishment. It is to let the wrong-doer pay back for his wrong doing
and to make him suffer even if no benefit result thereby to himself
or to the society. This theory is said to look to the past rather than to
the future and took its roots from mans natural impulse of revenge.
19


However, in view of the on-going humanization of laws nowadays,
the society is now gearing away from such theory in criminal
penology. True, there is a saying that an eye for an eye but as
Mahatma Gandhi said: an eye for an eye would turn the whole
world blind.


2) As Prevention and Deterrence

Another view is that punishment is a must for a) Prevention to
restrain the wrong-doer physically, so as to make it impossible for

17
Supra.
18
http://www.cstl-hhs.semo.edu/cveneziano/DETER1.ppt
19
Kadish, S.H. et. al, Criminal Law and its Processes Cases and
Materials, Third Edition, page 2
him to commit further crimes and b) Deterrence to deter others
from similarly violating the law. As such, it is deemed that
punishment is vital to the protection of the society.

Under this theory, penal laws are justified to prevent a man of
dangerous criminal tendencies to be in a position where he can give
indulgence to such propensities and contemplates a scenario
wherein if there is danger that a defendant may again commit crime,
the society should restrain his liberty.
20

But Jeremy Bentham argued that the only way for criminal law to be
an effective deterrent of crimes is that there must be proportionality
between the crime and the punishment. This means that serious
crimes must carry with them serious punishments. He argued that
the level of punishment must be equal to the level of harm inflicted
by the defendant. He concluded that if the costs of punishment
outweighed the benefits of crime, then the criminal, as a rational and
self-interested being, would make the rational decision to desist its
commission.
The problem with the idea of criminal law as deterrence is that we
do not live in a world of rational individuals. There are studies and
researches which suggest that social circumstances or biological
factors may have a causal connection with crime and that crime is
not determined but rather is an outcome of individual choice.

Accordingly, the empirical evidence does not support the view that
the criminal law has much deterrent value.
21




3) As a Reformation

This theory believes that man is not born a criminal but is
occasionally subdued by a strange and morbid phenomenon which
constrains him to do wrong contrary to his volition. This theory goes
beyond the retributive penalty and recognizes the redeemable good
in the accused. Hence, penalty is imposed for preventive and
corrective purposes.
22
The positivist theory states that the basis for
criminal liability is the sum total of the social and economic
phenomena to which the offense is expressed, and the adoption of

20
Ibid.
21
Norrie, A. Crime, Reason and History - A Critical Introduction to
Criminal Law (1993)

22
Supra.
the aspects of the theory is exemplified by the indeterminate
sentence law.
23

This is considered as the most recent and the most humane of all
theories and based on the principle of reforming the legal offenders
through individual treatment a product of the changing nature of
the modern society.
The reformative techniques are also said to be closely connected
with the deterrence principle by claiming that through punishment,
an offender recognizes his guilt and would wish to change. The
formal condemnation by society involved in punishment was
thought to be an important means of bring about that recognition.
Similarly, punishment of offenders may serve as epiphany for others
that crime is wrong and that they would reform themselves before
they actually commit a crime.
Furthermore, this theory of rehabilitation is more usually associated
with treatment of the offender. Under this theory, offenders are
perceived to be ill and in need of a cure. Thus, majority of
criminologists see punishment as a means of educating the offender.
This has been the ideal and the most popular theory in recent
years.
24


III. HISTORY OF CRIMINAL LAW IN THE PHILIPPINES
The Philippine legal system was a hybrid, reflecting the country's cultural and
colonial history. The system combined elements of Roman civil law from Spain,
Anglo-American common law introduced by the United States, and the
customary systems used by minorities. In the Muslim areas of the south, Islamic
law was employed. This particular legal system is the result of the immigration
of Muslim Malays in the 14
th
Century and the subsequent colonization of the
islands by Spain and the United States.
When the Spanish Colonizers conquered the Philippines, spanish laws and codes
were extended to the Philippines either expressly by royal decrees or by
implication through the issuance of special laws for the islands. The most
prominent of these laws and codes were the Fuero Juzgo, Fuero Real, Las Siete

23
De Joya vs. The Jail Warden of Batangas City, 417 SCRA 636
24
Dutta, S. Theories of Punishment A Socio Legal View.
http://www.legalserviceindia.com/articles/pun_theo.htm

Partidas, Las Leyes de Toros, Nueva Recopilacion de las Leyes de Indias, which
contained all the laws then in force in the Spanish colonies and the Novisima
Recopilacion, which comprised all the laws from 15
th
century up to 1805.
25


At the end of Spanish rule in the Philippines, the following codes and special
laws were in force in the country: the Codigo Penal de 1870 which was extended
to the islands in 1887; the Lay Provisional para la Aplicaciones de las
Disposiciones del Codigo Penal en las Islas Filipinas in 1888; the Ley de
Enjuiciamiento Criminal (Code of Criminal Procedure of 1872; which was
extended in 1888.)
26


The Spanish Codigo Penal was made applicable and extended to the Philippines
by Royal Decree of 1870. This was replaced with the old Penal Code which took
effect on July 14, 1887, and was in force up to December 31, 1931.
27
In the case
of U.S. vs. Tamparong, the Supreme Court traced the history of the old Penal
Code as follows: The royal order dated December 17, 1886, directed the
execution of the royal decree of September 4, 1884, wherein it was ordered that
the Penal Code in force in the Peninsula, as amended in accordance with the
recommendations of the code committee, be published and applied in the
Philippines Islands.
28
This law was effective in the Philippines until the American
colonization of the Philippines. It was only amended, under Act. No. 3815, with
the enactment of the Revised Penal Code of the Philippines.

The Code is called Revised Penal Code, because the Committee which was
created by Administrative Order no. 94 of the Department of Justice, dated
October 18, 1927, composed of Anacleto Diaz, as chairman, and Quintin Paredes,
Guillermo Guevara, Alex Reyes and Mariano H. De Joya, as members, was
instructed to revise the old Penal Code, taking into consideration the existing
coditions, the special penal laws and the rulings laid down by the Supreme
Court. The Committee did not undertake the codification of all penal laws in the
Philippines. What the committee did was merely revise the old Penal Code and
to include in the draft the other penal laws relating to it.
29


The Revised Penal Code was approved on December 8, 1930. It took effect on
January 1, 1932. The Revised Penal Code set forth the basic principles affecting
criminal liability, established a system of penalties, and defined classes of crimes.
It consists of two books, namely: Book 1 and Book II. Book one consists of two
parts: (a) basic principles affecting criminal liability (Arts. 1-20), and (b) the
provisions on penalties including criminal and civil liability (Arts. 21-113). In

25
M. Gamboa An Introduction to Philippine Law (7
th
edn, 1969) pp 69-
70
26
Ibid., p 71.
27
L. Reyes The Revised Penal Code (18
th
edn, 2008) p 22.
28
31 Phil. 321, 323
29
L. Reyes The Revised Penal Code (18
th
edn, 2008) p 22.
Book Two are defined felonies with the corresponding penalties, classified and
grouped under fourteen different titles (Arts. 114-365).
30


30
Ibid., p 23.
IV. RELATION OF LEGAL PRINCIPLES TO THE REVISED PENAL CODE
In our Revised Penal Code, one may find various applications of the different
theories on the nature of criminal law, as well as its purpose. This section aims to
present the provisions of our Revised Penal Code which show the relation of
each principle.
Under Mills harm principle, this can be shown in the RPC provisions punishing
crimes against persons such as parricide (Article 246), murder (Artcile 248)
and homicide (Article 249), punishable with capital punishments like reclusion
temporal, reclusion perpetua, or death, as amended by R.A. No. 7659. These
crimes require the element of intent to kill or to harm another. In connection to
the harm principle, the latter states that in order to criminalize such act, an act
must cause harm to others.
Whilst the above focuses on act directly causes harm to others, Feinbergs
offense principle includes as well indirect or remote conduct of human so long
that it causes harm to others. Under the Revised Penal Code, crimes such as
grave scandals (Article 200) and immoral doctrines, obscene publications and
exhibitions, and indecent shows (Article 201) are punishable though these do
not directly and physically harm another, but are nevertheless prohibited
because of being offensive to chastity, decency or delicacy.
31

The test of obscenity under the RPC is that, so long as the matter is to deprave or
corrupt those whose minds are open to such immoral influences, and whether or
not such act shocks the ordinary and common sense of men as indecency, then
the matter would be charged as obscene. Such test is reflective of Feinbergs

31
U.S. vs. Kottinger, 45 Phil. 352
subjective element of harm, which consists in the experience of an unpleasant
mental state such as shame, disgust, anxiety, embarrassment, etc.
32

Legal moralism considers criminal laws paramount purpose is the enforcement
of the moral values of the community. This principle believes that only actions
that are morally wrong should be punished, and as how Delvin puts it, the
function of criminal law is to reprimand conduct which threatens or undermines
the common morality. However, this principle admits that because of the
different cultures of societies, it is difficult to determine what are those acts
considered moral or immoral as shared by different societies. In the Philippines,
the Revised Penal Code prohibits crimes like abortion (Articles 256-259),
adultery (Article 333), concubinage (Artcile 334), and the like because they are
considered offensive to morality, the first because of the element of killing, and
the latter as a violation of the marital vow. However, other countries do not
prohibit those acts simply because they do not consider them immoral. This is
what Delvin said that the concept of morality varies on the societys view of what
is moral and what is not.

Legal paternalism somewhat contradicts with the harm principle. The former
believes that the State should also protect its citizens against harm which they
might inflict on themselves, and not only against those harm inflicted on them by
other people. Dworkin argues that interference with persons liberty is
sometimes necessary for the persons own welfare, good, happiness etc. This
interference could be seen on the number of provisions and prohibitions laid
under the Revised Penal Code which protect not only the welfare of the society
as a whole, but also the life, heath and safety of the person committing those
crimes. Examples of these laws are Articles 190-193 of the RPC Title V, on crimes
relative to opium and other prohibited drugs. These crimes are punishable
because of the risk and danger against the health of the people, so as the State
also punishes mere possession, transport and manufacture.
In terms of the purpose of criminal law, RPC is said to be based on the principles
of the old or classical school, that is, it is on the belief that the purpose of penalty
is retribution. It deemed that man is essentially a moral creature with an
absolute free will to choose between good and evil. Hence, RPC is endeavored to
establish a mechanical and direct proportion between crime and penalty,
thereby placing more stress on the act rather than the person committing the
act.

32
Supra.
However, it is to be noted that there are some views that RPC has also
positivistic tendencies or the reformation approach. It also focuses on the man
and his predicament rather than the crime as manifested by the provisions on
mitigating or justifying circumstances, Indeterminate Sentence Law and Juvenile
Delinquent Act.
33



































33
Reyes, L. The Revised Penal Code. 2008. page 23