III.

Law and Morality

Despite the different theories aimed, to do away with morality, intrinsicality of values, in
the understanding of Law, morality remains a necessity in the opposition of totalitarian theories
of modern governance particularly in the aspect of Human Rights.
- The premise of equality
o Christian Tradition: equality of all men regardless of race, belief, economic and
social standing.
o Spinoza, Leibnitz: Natural Law as the foundation of ethic and morality.
- Balance between sovereign power and individual rights
o Natural law establishes individual rights that government cannot dispense with.
- The purpose of government and the rights that exist even before the Constitution.
- Bill of Rights
- Even with the movement from the Divine to Secularism, a sense of Morality is still
established.

A. Moral Foundations of Law p. 131

1. Legal Moralism – the law is used to coerce society to a moral behavior.

Legal moralism is a theory of jurisprudence and ethics that argues that it is permissible for
the state to legislate and enforce morality to some extent. This means that certain
behaviors or actions can be prohibited or required by law based on moral grounds, even if
they do not directly harm or infringe upon the rights of others. Legal moralism suggests that
the law can and should be used to promote a particular moral code or set of values within
society.

Critics of legal moralism argue against the idea of the state imposing specific moral beliefs
on individuals, especially in pluralistic societies where there are diverse moral and religious
viewpoints. They contend that individuals should have the freedom to make their own
moral choices as long as they do not harm others or infringe upon their rights.

The debate over legal moralism often revolves around issues such as drug use, gambling,
prostitution, homosexuality, and other controversial moral topics. Some argue that these
activities should be criminalized because they are morally wrong, while others believe that
individuals should have the autonomy to engage in these activities without legal
intervention, as long as they do not harm others.

2. Utilitarianism
- Moral goodness is based on the concept of the greatest happiness to the greatest
number.
- (Individual Utilitarianism) Jeremy Bentham (1748-1832) was a British philosopher, jurist,
and social reformer who is best known for his development of utilitarianism, a moral
and ethical theory. Utilitarianism suggests that the right course of action is the one that
maximizes overall happiness or pleasure while minimizing suffering or pain. Bentham
 believed that ethical decisions should be based on a rational consideration of the
consequences of our actions and the well-being of all sentient beings.
Key aspects of Bentham's utilitarian philosophy include:
o The Principle of Utility: Bentham's central idea was that the morality of an action
is determined by the amount of pleasure it produces and the amount of pain it
prevents for all affected individuals. He referred to this as the "greatest
happiness principle" or the "principle of utility."
o Hedonistic Calculus: Bentham proposed a method to quantify pleasure and pain
in order to make rational decisions. He suggested that one should consider seven
factors when evaluating an action: intensity, duration, certainty or uncertainty,
propinquity or remoteness, fecundity (likelihood of leading to more pleasure or
pain), purity (likelihood of not producing opposite effects), and extent (number
of people affected).
o Felicific Calculus: Bentham used this term to describe the process of calculating
the total happiness or pleasure produced by an action using the hedonistic
calculus. The goal was to maximize the overall happiness of the greatest number
of people.
o Universalism: Bentham's utilitarianism is impartial and universal, meaning it
considers the interests of all individuals equally, regardless of their status, class,
or other characteristics.
Social Reforms: Bentham applied his utilitarian principles to advocate for various social
and legal reforms, including prison reform, animal welfare, and individual freedoms.
Act vs. Rule Utilitarianism: While Bentham focused primarily on act utilitarianism
(evaluating each action individually), his ideas later influenced the development of rule
utilitarianism, which considers the consequences of adopting certain rules or principles
as opposed to evaluating individual actions.
Laissez faire Utilitarianism: hands-off policy that will lead to greater happiness for all.
- Those rights which have not been surrendered to the State is the Bill of Rights- Justice
David Nitafan.
- (Social Utilitarianism) Rudolf Von Jhering
- Rudolf von Jhering (1818-1892) was a prominent German jurist and legal philosopher.
He is best known for his contributions to the field of law and his influential theories on
the nature and purpose of law.
Jhering's most significant work is his book "Der Kampf ums Recht" (The Struggle for
Law), published in 1872. In this work, he argued that law is not merely a collection of
abstract principles but rather a product of social struggle and conflict. He believed that
the purpose of law is to promote justice and social harmony by resolving conflicts and
protecting the rights of individuals.
One of Jhering's key ideas was the concept of the "Will to Law" (Der Wille zum Recht).
According to this theory, individuals and society, as a whole, have an inherent desire for
justice and order, which drives the development and evolution of legal systems. Jhering
emphasized that law should adapt and respond to the changing needs and values of
society to remain effective.
3. Deontological Theory/Nonconsequentialist
- Deon: Duty
- That obligation that is not motivated by consequence but only by a sense of duty.

4. Virtue Jurisprudence p. 134

- Justice for Plato: Universal Virtue/Injustice Universal Vice
o Justice is the harmony of all human virtues, synonymous with morality.
o Cardinal virtues: uprightness, prudence, temperance, courage
- Virtue vs Vice for Aristotle
o Most virtues fall on the mean. “Virtus stat in medio”
- Christian Virtues: faith hope and charity
- Alasdaire MacIntyre
o a prominent Scottish philosopher, born on January 12, 1929. He is known for his
contributions to moral and political philosophy, particularly in the areas of ethics
and virtue theory.
o Some of his most well-known works include:
o "After Virtue" (1981): In this influential book, MacIntyre examines the history of
moral philosophy and argues for a return to virtue ethics as a better approach to
understanding morality.
o "Whose Justice? Which Rationality?" (1988): MacIntyre explores different
rationalities and traditions of thought and discusses the challenges of moral
disagreement in pluralistic societies. To him, the answer is found in the
understanding of a society’s history and culture.
o "Three Rival Versions of Moral Inquiry: Encyclopaedia, Genealogy, and Tradition"
(1990): This book presents three distinct approaches to moral inquiry and
investigates the conflicting perspectives they offer.
o Encyclopedic Approach: The encyclopedic approach to moral inquiry treats
morality as a set of universal and objective principles that can be discovered
through reason and applied universally to all situations and cultures. Proponents
of this approach believe in the existence of a single, overarching moral
framework that can guide ethical decision-making.
o Genealogical Approach: The genealogical approach, inspired by the work of
Friedrich Nietzsche and Michel Foucault, challenges the idea of universal moral
principles. Instead, it investigates the historical and cultural contexts in which
moral concepts and values emerge. Genealogy seeks to understand the
contingent and often conflicting origins of moral beliefs, emphasizing the
diversity of moral traditions and practices across different societies.
o Traditional Approach: The traditional approach to moral inquiry emphasizes the
importance of communal practices, virtues, and narratives within specific
cultural or religious traditions. Morality, according to this view, is embedded in
the customs, stories, and shared values of a particular community. Tradition
provides the framework within which moral questions are addressed and ethical
decisions are made.
 o Secular and Religious Morality
- Separation of Church and State.
o History of Religion in State affairs: From the Bible to Church History and other
cultures.
- Limits to Religious Freedom: the limit is in the exercise of belief. This can be regulated.
- Estrada vs. Escritor. 408 SCRA 1 (2003)
o 3 theories on the application of religious clauses
o Strict Separationist: to protect the state from the Church
o Strict Neutrality: State neither favors nor opposed. The State tolerates the
practice of religion.
 The danger of a de facto voiding of religious expression in the free
exercise clause. “Secularity may lead to a passive or active hostility
towards religion?
o Benevolent Neutrality or Accomodation. P. 143
 Recognize the right to believe as a right.
 Not to promote religion but to recognize the role religion plays in society.
 A launching pad with which to approach a situation, not an automatic
exemption.
 Sincerity of religious beliefs (authentic existence of religious
teachings)
 Compelling State interest (lack thereof)
o Including proof that the law is least intrusive means
possible.
 State and public morality is not affected.
 This is current stance of Philippine Jurisprudence.
 To be deprived of this righ,t State must articulate in specific terms, the
State interest in preventing the exercise of one’s religion, which must be
compelling, and endangering paramount interests. (Covid Lockdown)
 This interest must outweigh the free exercise claim and cannot be
abstract and symbolic.
 Can the State impose “Divorce in a State made up of Catholics?”.
 Allows minority religions not to be discriminated as protected in the Bill
of Rights.
 The cross on CCLEX
- Unchangingly immoral vs. Fringes of Morality.
o Circumstances of time, person, and place are considered.
 Living together without marriage.
 Single pregnancies
 Marijuana
 Proposals on Adultery.
 Divorce
 5. Freedom of Expression p. 171
- One of the top positions in the hierarchy of civil liberties.
o Freedom from censorship
o All forms of Expression

- Limits are placed by tests

o Clear and present danger
o Balancing interest test
o Causal connection between the FE and the feared consequence.
- Unprotected speech
o Lewd and obscene
o Insulting or fighting words
o Libelous language
- Chavez vs Gonzales
o Freedom of the Press
 Dangerous tendency doctrine
The Dangerous Tendency Doctrine, in the context of freedom of speech, refers to a legal
principle that allows restrictions on speech if the speech has the potential to lead to harmful
actions, even if the harm is not immediate or certain. In some jurisdictions, this doctrine has
been applied to limit or regulate certain types of speech that are considered dangerous, such as
speech that may incite violence, public disorder, or discrimination.

However, the application of the Dangerous Tendency Doctrine in the realm of freedom of
speech is highly controversial and raises significant concerns about censorship and the
protection of fundamental rights. The balance between protecting public safety and preserving
the freedom of speech is a complex issue that legal systems grapple with.
 Balancing interests test
The "Balancing Interest Doctrine" refers to the legal principle used to balance conflicting
interests, such as protecting freedom of speech and maintaining public order or protecting
individual rights. In the context of freedom of speech, this doctrine recognizes that while
freedom of speech is a fundamental right, there are situations where other competing
interests, such as national security, public safety, or the protection of individual rights, may
justify limitations on speech.

When applying the Balancing Interest Doctrine, courts typically weigh the importance of the
speech in question against the potential harm it may cause or the conflicting interests it may
impact. The idea is to strike a balance between the protection of free expression and the need
to maintain social harmony and protect other important rights and values.

This balancing act often involves considering factors such as:

a. The Nature of the Speech: Courts assess the nature of the speech involved,
distinguishing between political speech, artistic expression, commercial speech, and
 other forms of communication. Political speech, which is at the core of the First
Amendment protections in the United States, often receives the highest level of
protection.

b. The Context: The context in which the speech occurs is crucial. For example, speech that
incites immediate violence or poses an imminent threat to public safety is afforded less
protection than speech that is merely offensive or controversial.

c. The Government's Interest: Courts consider the government's interest in regulating the
speech. If there is a compelling governmental interest, such as protecting national
security or public safety, restrictions on speech might be deemed justifiable.

d. Proportionality: Courts assess whether the restriction on speech is proportional to the

harm it seeks to prevent. Overly broad or vague restrictions are often seen as
unconstitutional because they may unnecessarily limit protected speech.

e. Less Restrictive Means: Courts consider whether there are less restrictive means
available to achieve the government's interest. If there are alternative ways to achieve
the same goal without limiting speech, the restriction may be deemed unjustified.
 Clear and present danger rule
According to the clear and present danger rule, speech can be restricted if it presents a clear
and present danger to national security or public safety. In other words, if the speech is likely to
incite or produce harmful actions, such as violence or public disorder, it can be limited or
prohibited, even if it does not create an immediate or imminent danger. The key consideration
is whether the speech poses a substantial risk that harm will occur as a result.

However, it's important to note that the application of the clear and present danger doctrine
requires a careful balancing act between protecting free speech and safeguarding public
interests. To be constitutional, restrictions on speech under this doctrine must meet several
criteria:

a. Clarity: The government must demonstrate that the danger posed by the speech is clear
and present, meaning it is both likely and immediate.

b. Imminence: The harm that the speech aims to incite or produce must be imminent,
indicating that it is about to happen soon.

c. Proportionality: The restriction on speech must be proportionate to the potential harm

it seeks to prevent. It cannot be overly broad or suppress more speech than necessary
to address the danger.

d. Less Restrictive Means: If there are less restrictive means available to achieve the same
goal without limiting speech, those alternatives should be considered and, if practical,
implemented.
It's worth noting that the clear and present danger test is not a rigid formula; its application can
vary based on the specific circumstances of each case. Courts consider the context, content,
and likely impact of the speech when determining whether the clear and present danger
standard has been met.

o Freedom of the press is Government accountability

o 4 aspects of Freedom of the press
 Freedom from prior restraint
 Freedom from punishment subsequent to publication
 Freedom of access to information
 Freedom of circulation
o Content-Neutral and Content-Based Regulations.
 CN regulated by substantial government interest
 CB regulated by clear and present danger rule.
o Privileged communications is implicit in the FP.
o Dichotomy between Print media and Broadcast media
 Broadcast media pervasive, occupies a frequency, accessible to children.
 Print media is limitations to obscenity, and clear present danger while
broadcast media has greater regulation.
 Clear and present danger test limitations for all content-based media
without distinction
o Chilling Effect Principle
 The intervention of authority in giving warnings against FP.
 Liberty to know, to utter and to argue freely according to conscience.

6. Obscenity and Pornography p. 188

- Obscenity is something offensive to chastity, decency or delicacy
- Indecency is an act against good behavior and a just delicacy.
- “to deprave or corrupt those whose minds are open to such immoral influences and into
whose hands a publication or other article charged may fall.”
- “which shocks the ordinary and common sense of men as an indecency.”
o The element of subjectivity and circustances.
o The aggregate sense of community.
- Pita vs. Court of Appeals
o “immoral” literature falls under the ambit of FE, therefore, Clear and Present
test applies.
o Obscenity tests must be applied.
o If it is not for art’s sake but for commercial purposes only… not entitled to any
Constitutional protection.
o Artistic element is an additional factor. Contemporary community standards
apply.
  “what is the judgment of the aggregate sense of the community reached
by the publication or other matter; what is the reasonable effect on the
sense of decency, purity, and chastity of society extending to the family?”

Cases:
Estrada vs. Escritor (A.M. No. P-02-1651)

Leus vs. St. Scholastica’s College Westgrove (GR No. 187226, January 28, 2015)

Pita vs. CA (G.R. No. 80806 October 5, 1989)

Chavez vs. Gonzales (GR. No. 168338; February 15, 2008)