PHILOSOPHY OF LAW MIDTERM NOTES has instilled it into human minds so as to be known by them

naturally; “good is to be done and pursued, and evil

avoided”; it is “the rational creature’s participation in the
St. Thomas Aquinas and Natural Law eternal law”

 See Summa Theologica  Human Law - “the more particular determinations of certain
matters devised by human reason”; it is meant to “implement
 Aquinas acknowledges that there are four types of laws: natural law.
Eternal, Divine, Natural and Human Law
But before we go to this, Lets take a quick look at his types
 Law in general sense is “a certain rule and measure of acts of Laws, we have: Eternal, Divine, Natural and Human Law. As
wherby a man is induced to act or is retrained from acting” you can clearly recall, Aquinas started with the idea of everything
in this community is governed by the divine reason, which is
 A good law for Aquinas is “an ordinance of reason for the GOD And because God is not human. God therefore is infinite and
common good, made by him who has care of the community, divine reason therefore is timeless. So when we speak of Eternal
and promulgated” Law, it is timeless. Like you remember our discussion about same-
sex marriage case, while truly, probably marriage may develop
The way to understand NATURAL LAW THEORY as you because society also develop, the way we think also develops. But
have learned in your readings is to dissect and analyze the thinking actually, the work of St. Thomas Aquinas, he already mentioned of
of St. Thomas Aquinas because its been the readings of Natural some moral standards as being ABSOLUTE UNCHANGING.
Law theorists. All others.. All other natural Law Theorists are but Although gi-distinguished ni Aquinas that there are things in this
some sort of modifications, improvements of St. Thomas world that do change but there are things that are absolute and he
Aquinas’. But of course, it is not to say that St. Thomas Aquinas is said MORAL STANDARDS are absolute unchanging and this is
the original Natural Law Theorist. In fact, in his works he where he said, because our moral standards have to spring from
mentioned St. Agustine and other saints and thinkers before him. Eternal Law as you have learned from his work, in fact all our
But what made his work special is because he was specific in his Laws must be a reflection of Eternal Law. By the ways, so thats a
analysis of the Law and to the extent that he even by way of Eternal Law for St. Thomas Aquinas.
explaining what Natural Law is he in fact discussed all other types
of Laws in hes work, remember? So he mentioned about Eternal Then you have Divine Law. Well, Eternal Law (idk why he
Law, Divine Law, Natural Law and Human Law by way of trying said eternal law) is specific its just a singular idea of a Law that is
to explain the relationship between these Laws. based on reason as mandated by God. Specific instructions of
God, in relation to specific human endeavor or activity, they have
Okay, so in his SUMMA THEOLOGICA, he started with been translated in some religious books probably lour Old and
of course this observation of what Law is and he said. Basically New Testaments. So, those are the specific instructions of God in
and in general terms. Law is a certain rule and measure of acts relation to specific human conduct or endeavor thats why when
where by man is induced to act or is restrained from acting. And we say Divine Law is actually the will of God as revealed. So, if it
then he said, you know his work, he started with an analysis of the is for example for good reason that we should remain loyal to our
nature of law and then he was trying to suggest that for Law to be spouse like the Old testaments says “thou shall not covet thy
considered Law it must comply with what he thought as the neighbour’s wife” di ba? That’s one specific revelation of God’s
components or elements of Law and this is where he mentioned wish.
about “Law as an Ordinance” after he made an analysis of the
nature of Law he then concluded therefore that Law is an Then Natural Law on the other hand is promulgated by the
ordinance of reasons for the common good made by him who has very fact that God has instilled into human minds so as to be
care of the community and promulgated. known by them naturally and this idea of REASON which is
basically being able to tell what is right and what is wrong is
based on what God has instilled in our mind this ability to doo
good and avoid evil. It is through Natural Law that the essence of
Types of laws according to Aquinas Eternal Law becomes manifest.

 Eternal Law - the whole community of the universe is Human Law, more particular determinations of certain
governed by God, the “divine reason” who “is not subject to matters devise by human reason and it is meant to implement
time, but is eternal; it is the source of all laws Natural Law. This is because according to St. Thomas Aquinas in
his definition of Law that while it should be based on reason and
 Divine Law - the will of God as “revelation” (God’s word that it is what is instilled on us by God that however should be
revealed); translated into Human Law so that of course there is faces for
enforcement and the demand for compliance of that Law. So we
 Natural Law - “It is promulgated by the very fact that God have Human Law precisely to implement Natural Law.
 its end

For Aquinas, Law is...  The “end” of life is “happiness” or “beatitude”

(1) an rodinance Based on REASON

(2) Of reason It is based on reason which is natural in every individual

because it is instilled by God toevery human being. Now it is
(3) For the common good based on reason so that as a rule LAW must be REASONABLE,
JUST, and USEFUL for achieving its END. You remember the
(4) Promulgated words of Aquinas that everything is towards a particular SOCIAL
END which is happiness or beatitude. So a Law that is not based
(5) By one who has care of the community
on reason, a law that is unjust, a law that is not for the common
If you look at the definition of St. Thomas Aquinas again we good is not based on reason and therefore should NOT be
can actually divide this into several parts. We can begin with for considered Law.
example, for Aquinas Law is an ordinance of reason for the
In your reading of Blackwell you might have encountered
common good promulgated by one who has the care of the
the STRONG and the WEAK reading of St. Thomas Aquinas’
community. So we take a look at the meaning of each components
work. When we say Strong and Weak reading, we are referring to
of Law.
the interpretation of legal theorists on the work of Aquinas. So if
we say, you are interpreting St. Thomas Aquinas’ work on the
matter as under the strong reading then you are saying that Law is
(1) “an ordinance” unjust then it is not a Law, that is actually the thinking also of St.
Augustin, if Law is unjust it is not Law.
 Law therefore is a “command”
But the WEAK reading of the work of St. Thomas Aquinas
 It is not a sugggestion as analyzed by Finnis for example, he would say that, actually it
can be said that because St. Thomas Aquinas also accepted the fact
 Therefore it is binding that there is indeed UNJUST LAWS, so the weak reading of
Aquinas really is that - Law that is unjust is still a Law but you
Why an ORDINANCE? just call it as unjust law.

Because, for Aquinas, Law is a COMMAND, it is not a Okay? It’s different when you say that it is not Law if it is
suggestion. And therefore being a command it is BINDING. So Unjust. Because if it is not a Law then it is not binding. Okay?
even in Naturalism there is still the idea that it is a command And if you say, a Law that is unjust is still a law but it is an unjust
meaning it is something that should be complied with. Okay? So if law then there may still be a coercive power of the law except that
I tell you for example to get a piece of paper and then I’m not it is not legitimate that the state will have to exercise their
saying that if you don’t do there are some consequences then I am coercive power. Because if you based it on the strong reading, the
just therefore suggesting other than saying you get a piece of paper State will not even be allowed or permitted to exercise its coercive
because there is a test and an examination and you have to comply power if the law is unjust because that is not a law in the first
with it otherwise you will fail. So the mandate of that rule is that it place.
is to be complied with. In fact, even in Natural Law, (well don’t
think that this is a command theory) but even in natural law, there So you remember the distinction of the strong and weak
is an idea that “Law is Law if it is BINDING” - to distinguish readings of St. Thomas Aquinas. This is just interpretations of his
therefore Law from all others that do not require compliance. So work. There are thinkers who interpret the words of Aquinas that
that is the meaning of ordinance. way and others the other way.

(3) For the common good

(2) of reason  Law is not given to just one individual, butt to a

community
 “reason”. Which is the ability to tell what is right and
what is wrong is God-given, hence naturally exists in the  It does not govern a single act, but it is a rule of action
individual for all that are covered by the law

 Law expresses the mind or will of the authority  It is, therefore, general

 Law must be reasonable, just and useful for achieving E2For the COMMON GOOD
 And this is the substantive element also of St. Thomas Morality on the work of St. Thomas , it is not so much of the
Aquinas’ definition. Well, it should be for the common good ethical standard. He said “every human laws has so much of of the
because as you know, Law is not just intended for an Individual nature of law as derived in the law of nature. But in any point
but it is intended for the entire community. And therefore, for him, deflects from the law of nature, it is no longer a law but perversion
Law must be general in application. And because it is general in of the law”
application. It must be promulgated by one who has the care of the
community precisely. But when we say promulgated. Strong reading - is not a law
Weak reading - is still a law but a perverted law

In the strong reading, it is not a law, so the state is not

permitted, and it is legitimate exercise of a coercive power if the
law is to be implemented.
(4) Promulgated
But weak reading, it is still a law but is a perversion of the
 Law must be made known to those for whom it is intended law, then the state is given justification to coerce, to exercise its
to be binding coercive power - but that may not be legitimate as it is exercising
an enforcing an unjust law.
 It must be made public because law is not intended to be
binding only upon an individual You can also encounter this is the work of HLA Hart.

It must be promulgated by one who has the care of the Neo-naturalism of John Finnis
community. Precisely, but when you say promulgated according to
St. Thomas Aquinas because the law is binding it is important that  The essential function of law is to provide a justification for
it will be made known to the governity. That is I think the meaning state coercion;
of being promulgated. It be be known to those whom intended to
be bounded. Therefore, mode applicable to the public.  An unjust law can be legally valid, but it cannot provide an
adequate justification for use of the state coercive power and
(5) By one who has the care of the community is hence not obligatory in the fullest sense;

 The one who hands down the law must have “authority” to  Thus, an unjust law fails to realize the moral ideals implicit
do so, it is important that it in the concept of law.

 The authority must be rightful  An unjust law is legally binding, but is not fully law.

 The authority must act for the common good

By one who has the authority over the subject of the law. It it St. Thomas Aquinas is the classical natural law theory.
imposed, issued and promulgated by one who has the authority
then it is based on St. Thomas Aquinas has considered as a For John Finnis, the essential function of the law is to
component of law, even if it is for the common good, but not provide a justification, meaning, the only question for the validity
promulgated by one who has the authority then is not part of what of law is whether the implementing the law is justiciable or not on
St. Thomas considered as component. the part of the state, and by implementing the law, meaning, the
state exercises it coercive power.
Aquinas & the Overlap Thesis
That is simply based that you don't obey the law then it is justified
“Every human law has just so much of the nature of law as is in imposing penalty - that is the exercise of its coercive power.
derived from the law of nature. But if in any point it deflects from
the law of nature, it is no longer a law but a perversion of law” For John Finnis, that is the ultimate purpose of the law, law is
valid, if its justifies its coercion unlike in the case o St. Thomas
Augustine: “an unjust law is no law at all” Aquinas, law is based on reason.

Overlapped - law and morality are related, sometimes law is So an unjust law can actually be legally valid, meaning it justifies
judge on the basis of acceptability, validity and legitimacy on the state’s coercion but it cannot provide for the adequate justification
basis of its moral standard. for the use of the coercive power and therefore, not obligatory in
the fullest sense. Mae be obligatory, it exist as a law but the sense,
To St. Thomas Aquinas, it was not morality, as we know it is an unjust law, then there is no justification for the exercise for
today, which is morally similar to ethical standard but when you the exercise of coercive power but of course, the state can exercise
say morally under the natural law theory, it is simply based on coercive power, because it is still a law than the rest.
natural law which is REASON.
The law may be harsh but it is the law At first, legal positivvism existed because it wanted to deny
= the law may be harsh in applying to you and under certain the relationship between law and morality. Remember what John
circumstances surrounding your case but it still a law nonetheless. Austin said that Command theory “the exercise of law is one
thing, its merit or the merit is anotheer thing, whether it be or be
An unjust law is legally binding but not fully a law. This is not if one inquiry, whether it be or not conformable to an assume
actually an expression of the weak reading of natural law, that is standard is also different....”
John Finnis interpreting the work of St. Thomas Aquinas.
So lahi ang pag think of law sa binding sa legitimate law,
John Finnis & Naturalism: different sad whether it conforms to some assumer moral standard
(Utilitarianism)
The term “law” ... Refer primariy to rules made, in accordance
with regulative legal rules, by a determinate and effective John Austin’s Command Theory
authority (itself identified and, standardly, constituted as an
institution by legal rules) for a ‘complete’ community, and - laws are command of the sovereign - one who is not a
buttressed by sanctions in accordance with the rule-guided subject to a control or any other sovereign power.
stipulations of adjudicative institutions, this ensemble of rules and
institutions being directed to reasonably resolving any of the This is his ideal of relationship between morality and law
community’s coordination problems (and to ratifying, toleratin, and even HLA Hart., it exposes separability when he said it is with
regulating, or overriding co-ordination solutions from any other no sense that necessary truth that laws reproduce or satisfies
institutions or sources of norms) for the common good of that certain demands of morality though in fact they are often done so.
community (Finnis 1980, 276)
oIt is not necessary that law is substantively advances some
principles of morality.
o That legal positivism is all about; morality is not a test of
Why is john Finnis theory/thinking still considered part of natural the validity, acceptability or efficacy of the law.
law? o Note: that legal positivism DEVELOPS. In the past where
society thought of kings, monarchs as absolute rulers. Thus,
- it is because what he said about the law that in the end, it should the idea of command theory persisted but not long. In the
still be for the common good of the community. mid of 20th century where democracy started to flourished
and states began to think differently because of civilization.
Legal Positivism As a result of some liberalist thinkers from Montesquieu ,
Rousseau, john locked think also the development of how
 Law is a matter of what has been “posited”
they think of what is law. That law shouldn’t be thought
 Denies “Overlap Thesis” of Naturalism simply as one as in doubt. Their are other aspect of society
that should be considered in order to test the validity of law
 John Austin’s Comman Theory” (influenced by Jeremy and this is where modern positivist theorist started to
Bentham and Thomas Hobbes): “laws are commands of the include in the determination of the validity of laws other
sovereign:, “combined with a willingness and ability to than the fact that it is handed down by the sovereign.
impose and evil if that wish is not complied with”
Consideration such as ; “ how the a law is to be implemented?
 John Austin’s “Separability Thesis”: “The existence of law is How the law is promulgated?
one thing; its merit or demerit is another. Whether it be or be
not is one enquiry; whether it be or be not conformable to an Legal Positivism
assumed standard, is a different enquiry”
 By mid-20th century, command theory lost its influence on
 H.L.A Hart on the Separability Thesis: “It is in no sense a modern legal theorists: Hans Kelsen, H.L.A Hart, and Joseph
necessary truth that laws reproduce or satisfy certain Raz;
demands of morality, though in fact they have often done so”
 Hans Kelsen’s Basic Norm Theory: “Law is not, as it is
(Hart 1994, 185-186).
sometimes said, a rule. It is a set of rules having the kind of
Legal Positivism - law is rather rather of what has been unity we understand by a system.: (1945); the reason for the
posited, what has been ordered. Law is law because it is what has validity of a norm must always be another norm (i.e.,
been ordered, it is enacted, directed to govern, it is fixed. Thatt “presuppose” the basic norm).
what makes a law a law, the mere fact that is is fixed, posted and
ordered.  H.LA Hart: the validity of a legal system is a social rule that
exists only because it is being “practiced” (see Hart’s source
That is basically the thinking of the Command Theory of determining “rule of recognition)
John Austin.
 can only eat twice and only the king and queen and
children will eat thrice. WHAT can you test the validity
 Hart disagrees with Austin in that Austin’s theory refers only of this primary rules?) Remember, in a primitive state
to what Hart called “primary rules” there’s NO. But in modern society that rule can be
assailed as discriminatory, unfair and unjust (basis is the
 But, modern legal systems are actually a union of “primary secondary rules).
rules” and “secondary rules” (rules of recognition, rules od o According to hart in a modern society laws are made
change, and rules of adjudication) that make primary rules more effective and to be more effective there must be a
effective. secondary rule (“rules about the rules”.) rules that tell
how primary rules to be implemented and to be observe.
o It’s a new development in positivism because while
Hans Kelsen’s Basic Norm Theory: Austin, Bentham, Thomas Hobbes and even
Blackstone thought of rules a pertaining to primary
oIt is not necessary that law is substantively advances some rules under the command theory that it develop
principles of morality. something else which refer to the work of Hans
o That legal positivism is all about; morality is not a test of Kelsen basic Norm and HLS Hart primary and
the validity, acceptability or efficacy of the law. secondary rules.
o Note: that legal positivism DEVELOPS. In the past where
society thought of kings, monarchs as absolute rulers. Thus, Lon Fuller & Procedural Naturalism
the idea of command theory persisted but not long. In the
 The only formula that might be called a definition of Law
mid of 20th century where democracy started to flourished
offered in these writings is by now thoroughly familiar: law
and states began to think differently because of civilization.
is the enterprise of subjecting human conduct to the
As a result of some liberalist thinkers from Montesquieu ,
governance of rules. Unlike most modern theories of of law,
Rousseau, john locked think also the development of how
this view treats law as an activity and regards a legal system
they think of what is law. That law shouldn’t be thought
as the product of a sustained puposive effort (Fuller 1964,
simply as one as in doubt. Their are other aspect of society
106)
that should be considered in order to test the validity of law
and this is where modern positivist theorist started to include  To the extent that a definition of law can be given, then, it
in the determination of the validity of laws other than the must include the idea that law’s essential function is to
fact that it is handed down by the sovereign. “achieve [social] order through subjecting people’s conduct
to the guidance of general rules by which they may
Consideration such as ; “ how the a law is to be implemented?
themselves orient their behavior” (Fuller 1965, 657)
How the law is promulgated?
“Atty. Didn’t expound this”
H.L.A Hart: the validity of a legal system is social rule that
exists only because it is being “practice”

o A law is a valid if it is in fact socially practiced. Lon Fuller “Internal Morality” of law
According to hart the first rule on the secondary rule A system of rules must satisfy the following principles;
means that if you have a law/rule you must be able to (P1) The rules must be expressed in general terms;
recognize where it came from. (P2) The rules must be publicly promulgated;
o The modern interpretation of Hart’s work can also mean (P3) The rules must e prospective in effect;
under the theory of recognition. (i.e think a specific rule (P4) The rules must be expressed in understandable
and think why should law be published? Because law as terms;
basic practiced need to be published for its effectivity. (P5) The rules must be consistent wit one another;
Article 2 CC) (P6) The rules must not require conduct beyond the
powers of the affected parties;
Hart disagrees with Austin:
o According to Hart, Austin has made a mistake in (P7) The rules must not be changed so frequently that the
oversimplifying his idea of a rule. If you think a rule that subject cannot rely on them; and
is something ordered to be done backed by threat of (P8) The rules must be administered in a manner
force/evil then this means as primary rules. If law is consistent with their wording
simply referring to primary rules then it is only
prescribing of what is actually governing a primitive o Lon Fuller work is something naturalism. The neo-
state. naturalism of John Finnis and positivism.
o Primitive state/society has only primary rules. (i.e in o Some author would say that Lon Fuller’s work is more
Primary rules: ordered all inhabitants of his territory on positivism. But Lon fuller itself clarified that his
 standard of the validity of law have nothing to do with
the substance but only in the procedure.
o The internal morality of law is considered as the
principles in order to have a valid system or rules.
o That rules must be expressed in general terms….(refer to
the principles of the internal morality of law of Lon
Fuller.)

Lon Fuller’s “Internal Morality” of law does nor

ental substantive morality of law

“What I have called the internal morality of

law is… a procedural version of natural law.. {in
the sense that it is} concerned, not with the
substantive aims of legal rules, but with the ways in
which a system of rules for governing human
conduct must be constructed and administered if it is
to be efficacious and at the same time remain what it
purports to be” (Fuller 1964, 96-97)