Midterms Reviewer | Fr.

Ferrer | existence was brutish, nasty, and

PhiLaw | Block C short
Important Terms to Remember are in bold 12.Hume (EUW) – without law,
CHAPTER 1| IS LAW NECESSARY? government, and coercion, human
1. Doctrine of Anarchism – general society could not exist; law is a
restlessness against all authority natural necessity to man
2. Ideological – something that forms 13.Machiavelli (EUW) – based his
part of our outlook upon the world advice to princes to disregard their
and the relation of man to the world pledges if these conflicted with their
and to society interests
3. Idea of law – ideological in  men are naturally bad and will
character; inevitably affects our not observe their faith towards
general thinking you, so you must, in the same
4. Law (in the view of Man as Evil) – way, not observe yours to them
indispensable restraint upon the 14.Ovid (Metamorphoses) - he said
forces of evil; penal laws needed for that the written law was not needed
progress because there were no people that
5. Law (in the view of Man as Good) oppressed another; conscience was
– government and legal system are their guard
the sources of evil; penal laws needed 15.Seneca (Kingship of the Wise)–
because Man has become corrupted men in their primitive state had no
6. Age of Social Reform – time when notion of private property, but men
people called for the total elimination became avaricious and dissatisfied
of law with the common enjoyment of the
7. Golden Age of Primeval good things of the world. Kingship of
Innocence – time when men lived the wise gave place to tyranny, so
simple, happy, well-ordered lives that men had to create laws which
without the need for any external should control their rulers.
system of legal rules or coercion to  According to Seneca, this
restrain their impulses which were innocence was a result of
wholly unselfish and directed to the ignorance than of virtue
common good of mankind 16.Fall of Man – adopted the notion of
 Aka idyllic primitive scene ‘men are primarily innocent, but
8. Legists (Ancient China) – argued that greed and avarice make them evil’
man was initially evil and they acted  Biblical Account of Paradise
good due to the influence of the – necessity of human law and all
social environment, particularly the its institutions (state, private
teaching of rituals and the restraints property, and slavery), was
of penal laws derived from man’s sinful nature
 A single law, enforced by severe 17.Augustine – State-law and coercion
penalties, is worth more for the were not in themselves sinful but
maintenance of order than all were part of the divine order as a
the words of all the sages means of restraining human vices due
9. Shastra writers (India) – argued to sin
that men are by nature passionate  All legal institutions and state
and covetous; if left to themselves powers are legitimate. Law is a
the world would resemble a devil’s natural necessity to curb man’s
workshop where the logic of fish sinful nature
would reign (big ones would eat the 18.Commonwealth of God’s Elect
little ones) (Augustine)– a mystical society that
10.Bodin (EUW) – original state of man Augustine hoped mankind to achieve
was disorder, force, and violence 19.Aristotle (Change of Emphasis) -
11.Hobbe (EUW) –primitive man was a provided more scientific and
state of perpetual warfare; individual philosophic reflections

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 20.Natural Virtue (Aristotle) – Man may regarded as an indispensable
be corrupt, but he is still capable of feature of a free market
development 27.Godwin (Political Justice) - evils of
21.Aquinas (Medieval Catholic Church) – society arose not form corrupt or
state is not a necessary evil but a sinful nature but from the detrimental
natural foundation in the effects of oppressive human
development of human welfare institutions. Voluntary cooperation
 Law as a positive instrument and education would enable all law
- not only a restraint from evil to be abolished
but also a guide to set the path 28.Bakunin and Kropotkin (Russians) –
of social harmony and welfare the state, law, coercion, and private
22.Wistful Primitivism – man’s nature property were the enemies of human
is and remains good, but it is the happiness and welfare
social environment which is  Beneficent role of
responsible for the evils of man’s cooperation – necessary in
condition, and the existence of a human evolution as a principle
regime of law imposed by a force of mutual aid; would replace
from above the coercive community
23.Plato – men of early times were 29.Tolstoy – form of anarchy based on
better than we are and nearer to the the conception of simple Christian
Gods God-inspired life
 Envisioned society as one free 30.Alymer Maude (Life of Tolstoy) –
from all legal rules in which “remove the law, and induce meant
rational (inner) harmony will to believe that no fixed code or seat
prevail as a result of the good of judgement should exist, and the
sense and social impulses of only people who will be able to get on
its members at all decently will be those who, like
 System of Education – the Russian pre-revolutionary
produces adequate rules and peasantry, follow a traditional way of
conditions the population to a life”
state of obedience 31.Marxism – envisaged the overthrow
 The Laws – dialogue by Plato; of the capitalist society by a violent
shows that his vision is more revolution of the oppressed
totalitarian than anarchic proletariat. Law nothing but a
24.Cult of non-violence – appeared as coercive system devised to maintain
a threat to state authority and the privileges of the property-owning
afforded a base for the anarchistic class
doctrines  Interim period (in this
25.Ideology of human progress – revolution) – a paradox where
worldview which rejects the belief in a there is a need for the increase
primitive paradise and looks forward of state activity
to an ever brighter future for mankind 32.Elliot Smith (Human History book)
 Ultimate Social Harmony – if – The evidence is so definite and
man was left on its own to abundant that it becomes a problem
evolve and not interfered with, it of psychological interest to discuss
would achieve this stage why men persist in denying the fact
26.Adam Smith (Theory of Laissez of Man’s innate peacefulness
Faire) - all government and law were  Friction and discord comes as a
in principle evil in so far as they result of the ills of society
constricted or distorted the natural 33.Duality of Human Nature – man
development of economy and of may possess innate goodness, but
society there is also a dynamic side to human
 Strongly favored the use of nature which may be directed to
coercive law for the protection creative or destructive ends
of private property, which it

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 34.Herbert Read – men have always  Traditional Domination –
organized themselves for mutual authority which comes from the
aid, so you can rely on them to personality of the leader may
organize a social economy which will pass onto his successors
ensure the satisfaction of their needs. (Monarchs – charisma is in the
Any dispute can be resolved in a local crown, founders of religion);
basis, no need for a state. charisma becomes
 Crime is largely a reaction to the institutionalized and becomes
institution of private property embodied in certain
 Anarchism – a society without permanent institutions
a ruler. It does not mean a formed largely by traditional
society without law or without usages
order  Legal Domination – under this
CHAPTER 2 | LAW AND FORCE system legitimate domination
35.Anu – god of the sky; issued decrees has become impersonal and
which commanded obedience; the legalistic; a traditional system
very symbol of authority in the of domination will not lack legal
cosmic order; legitimate authority rules
36.Enlil – god of the storm; power of o Circular Argument of LD
compulsion; executes the sentences – laws are legitimate if
of the gods; force they are enacted, and an
37.Moral Obligation – treating enactment is legitimate if it
someone as entitled to your conforms to those rules
obedience (overlords, policemen, which prescribe the
judges); obliged, willingly or procedures to be followed
unwillingly, to obey; voluntary 42.Modern Democratic State – largely
adherence by virtue of intrinsic abandoned charismatic authority in
rightness favor of institutionalized
38.Legitimate Authority – has to be legislature, bureaucracy, and
obeyed because of its very legitimacy judiciary which operate impersonally
39.Monolithic View of Law – legitimate under a legal order which has the
authority and moral obligation can be legitimate use of force; still rests
equated; the king can do no wrong on the belief of its legitimacy, for
40.Social Contract (16th and 17th without it there would be anarchy and
century) – a breach by a ruler of this disorder
contract (ex: the ruler is illegitimate) 43.Bracton (medieval jurist) – the king
as in the case of James the Second ought to be under God and the Law
could be represented as releasing his 44.Present Notion of Authority – rests
subjects from their obligations to on a firm belief in its legitimacy both
yield to his authority in its broadest and legal context
41.Authority or Legitimate 45.Force of Law – counterpart of
Domination (Max Weber) – takes legitimate authority (ex: occupation
three forms: charismatic, traditional, of Nazi forces of European countries);
and legal; analysis of Weber is law in the last resort can be
typological and not explained terms of force alone even
developmental; concerned with without legitimate authority; the force
general tendencies of law seems to be always linked to
 Charismatic Domination – the capability to be enforced by
form of personal ascendancy coercion (policemen, hangman, etc.)
which an individual may acquire  Thrasymacus (in Plato’s
in a particular society; confers Republic) – said that justice is
an indisputable aura of simply the rule of the
legitimacy (Alexander the stronger
Great, Julius Caesar, Napoleon.  Nazi Occupation –
Hitler, Mussolini, Stalin) characterized by force without

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 legitimate authority; try and exclusively in terms of
force a law into the pattern of a authority to neglect
marginal and exceptional  Coercive View of Law –
situation rather than putting force in the forefront to
comprehend it in its typical and the neglect of authority
characteristic pattern o in less developed societies,
o A society that is coercion tends to take the
temporarily dominated by form of each man helping
sheer force or terror is himself with the aid of his
not a reason for treating kinsfolk to enforce his
law other than it as force rights
incarnate  Law as Flexible – there are
46.Principles of True Morality – any many situations where it may be
force or violence is wrong in itself and fully justifiable and desirable to
a law which rests ultimately on employ the conceptual
violence is against this principle; apparatus of law (mix of anti
violence lies outside the scope of law and coercive) even if features
and is an extraneous element such as ‘ideal’ are absent or at
 Moral Law – rule based not on least present in only an
force but on conscience, or attenuated form
whatever else is appealed to as  Ideal Type of Law (for Weber)
the mainspring of morality; – unified analytical
no system of rules is entitled to construct; utopia; significance
qualify as law unless it is of a purely limiting concept with
subsumed under the rule of which the real situation or action
morality is compared
47.Universal Suffrage and Majority  Legal Science – it is up to legal
Rule – the rule that somewhat science to analyze the
replaced the old social contract conceptual apparatus of law
theory; people obey the law not to find a way to have coercive
because they are constrained to do so relations in international law
by force but because they consent 49.Organized Coercion – experience
or at least acquiesce in its shows that at all levels of society
operation; an individual can, from human law has depended for its
time to time, manifest his adhesion to ultimate efficacy on the degree to
the operative system of which it is backed by organized
government; moves the emphases coercion
from coercive subordination to 50.Relative Anarchy of Feudal
voluntary consent or Society – dependent for its law
acquiescence enforcement largely on kinship
48.Force in International Law – there groups supplemented by the strong
is no international coercive arm of feudal barons
enforcement (there are no 51.Centralized Machinery of a
policemen) but there is a system of Modern State – the authority of the
rules that states agree to be binding law gains much by the availability of
to them; cannot be regarded the machinery of regular
same as the force in national scope (if enforcement
you do, there could be destruction of 52.Psycho-analysis – unconscious
life and property on a vast scale) factors in man’s psychological make-
 National Law – can always in up; powerful aggressive drives which
the last resort enforce its require to be effectively repressed in
decrees against individuals order to subject man to the needs of
 Anti-coercionists – seeks to social discipline
describe the legal process  Freud – aggressive urges could
be repressed and sublimated

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 but not eliminated; civilization Furies pursue him but Orestes was
will always involve a struggle saved by Athene
between social impulses and 62.Ruling Pharaoh of Egypt –
the basic drives towards regarded as the local incarnation of
aggression; insisted on the God on earth
connection between civilized 63.Hebrew Influence – rejected all
society and coercive social systems of polytheism and of divine
order rulers and set up in their place an
53.Model Legal System – comprises unswerving monotheism in which
rules governing the use of God’s will dictated the moral pattern
violence as a mode of enforcing for all mankind
other sections of the system, in 64.Hebrew Prophets – reiterated the
which are laid down rules governing imperative character of God’s law;
the conduct of those subject to that the obligatory character of that law
system upon rulers and people alike;
54.Developed State Law – the use of punishment God would inflict upon
force has become more closely those who disregarded the rules
regulated that it has been pushed 65.Great Prophetic Period (of Hebrew
further in the background Religion) – recorded in OT; Kings
55.Fatal Illusion – force never was or propose but God disposed; no mere
at least has ceased to be an essential kingly decree could prevail against
feature of law the will of Almighty God (Law of
56.Command Theory of Law (John Moses)
Austin)– no rule where a breach 66.God’s Will – declared by the
cannot entail the application of a prophets if they weren’t in the
state force can be regarded as a rule divine scriptures; laws laid down by
of law human rules could and frequently did
CHAPTER 3 | LAW AND MORALS conflict with the divine decrees
57.Divine Lawgiver – as in the case of 67.Man-made Laws – does not stand
the Ten Commandments, the law is validity in the face of divine laws
attributed to the Divine 68.Hebraic View of Divine Law –
58.Divine Inspiration – attributed to equated law with morality for the only
human sources of law to give divine true law was that which embodied the
sanctity to the law decrees of God’s will; law is simply
59.Divine Sanction – gives that aura the moral or religious law which is
of authority which law is able to laid down by God or developed by
command for belief and in the moral divinely inspired human beings
duty to obey the law 69.Calvinism – law and morality are one
60.Ancient Systems of Law – gods and no recognition can be granted to
themselves have directly or indirectly, any laws which are lacking in divine
through human agency, decreed the inspiration; conflict between human
very content of the laws; displayed a law and moral law  treats all valid
rich ingenuity in devising and human laws as nothing but
inflicting penalties of the most expressions of the moral law
appalling kind; for the most part 70.Geneva of Calvin – triumph of rigid
 Ancient societies did not identify orthodoxy imposing its moral tenets
their rulers with gods – clear-cut on every aspect of the life of the
distinction between the divine community
and merely human in the sphere  Counterpart – virtual anarchy
f law of individuals each interpreting
61.Story of Orestes – sufficiently the law according to his own
illustrates the belief in divine moral inspiration (Germany in
intervention for offences against the the early days of Reformation,
laws; to avenge his murdered father Anabaptists)
he kills his mother and lover. Divine

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 71.Scriptures – can be full of doubts  Plato’s Crito – Socrates
and obscurities; needs to be explains to his companion why,
authoritatively interpreted if they though his condemnation may
are to be treated as legislative in have been unjust, he must abide
character still by the state’s decision and
72.Hebraic Approach to Moral Law – would be acting wrongly by
stressed the irrational and mystical trying to escape the penalty;
elements of faith; God’s ways were concept of dura lex sed lex
mysterious and not fully o Trying to escape the law
understandable by man, but man would be tantamount to
must submit lovingly to the divine trying to destroy the laws
will even if it passes understanding;  Highest Unwritten Law – live
appeals to the very according to the laws;
incomprehensibility of the universe obedience to the law itself is a
as a justification for resort to faith principle of highest morality
alone (Credo quia absurdum)  Moral Law (Greek sense) –
73.Greek form of Faith – rational order independent of state law where
of the universe governed by t can be shown that a particular
intelligible laws ascertainable by decree of the state may be
rational investigation; both the shown to be immoral or unjust
physical and the moral order of the (unconstitutional??); moral law
world were based on rational does not override the law of the
principles state as far as the individual
 Secret Orphic rites and citizen is concerned
Phytagoreanism – mystical o Law of God – still requires
and irrational elements in both obedience even to an
Greek religion and philosophy unjust law
 Fate – played a mysterious role 74.Identity of Law and Morality
in cosmic and human affairs, (Plato) – only when the state
deciding human destiny in an itself embodied the idea of the
inscrutable fashion (Oedipus) good could the life of the individual
 Man’s reason – shared in the properly be sacrificed to the state
rational nature of the universe 75.Difference of Hebrew and Greek
 Human reason (in the moral Faith – Hebrew says human law is to
sphere) – entails the idea of a be obeyed only when it corresponds
moral law of a rational kind; with divine law; Greek says that
derived from the fact that man’s human law may conflict with moral
reason must necessarily accept law but citizens must still obey the
the rational solution as the law of his state
moral or true one 76.Philosophy of Hegel – the individual
 Test of Rationality – since the is treated as submerged in the higher
universe is ordered rationally, reality of the state; state itself
reason must also accept rules of represents the very embodiment of
rationality morality; state is not open to the
 No higher law of reason – persuasion of an individual citizen
man-made law is not affected by 77.Democrats and Anti-Totalitarian –
divine law; human law while recognizing the moral duty to
possessed an autonomous obey the law, greater emphasis is
position in society placed on the limitations of this
 Moral obligation to State – doctrine in those cases where
unlike Hebrews, Greeks said that morality was in conflict with the
a person has to the moral provisions of positive law
obligation to obey the law  While law and morality occupy
even if it is wrong or immoral much ground in common, there
is no necessary coincidence

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 between the dictates of law and 3) Autonomy of both spheres –
morality neither can resolve questions of
78.Relation of Law to Morals – validity save its own sphere; aka
sometimes described as a Venn legal positivism; pragmatic
Diagram; misleading insofar as it view of moral law (utility,
suggests that where there is common expedience, tradition, or social
ground between the two there is a custom)
kind of identity 83.Wolfenden Committee – urged that
 Law of Murder – it may the offense of homosexual
concern prohibitions rooted in relations between consenting
common morality, but it might male adults in private should be
be different to what the law and removed from the statute book
morality would regard as 84.Libertarian Approach (John Stuart
amounting to murder Mill) – the law should not intervene in
o Practical Expediency – matters of private moral conduct
laws are justified to more than necessary to preserve
distinguish public order and to protect citizens
79.Moral Codes – supplement the force against what is injurious or
of the law which equally forbids them; offensive
largely presupposes the existence of 85.The Error of Jurisprudence – failure
a legal system underlying its to give expression to the moral
precepts; plays an important role in standards of the community will
establishing the authority of the weaken the moral authority of the law
law and ensuring obedience to it 86.Moral Standards – set by the
80.Authentic Path of Morality – ordinary reasonable man which is
higher ethical attitude the man or woman in the jury box or
81.Divergence between Law and the ‘man on the Clapham
Morals – law may reflect popular omnibus’
morality though the latter is slowly 87.Divorce Act of 1969 – sole ground
being made to yield to a more refined was to be the irretrievable break-
or humanitarian approach; new down of the marriage
moral duties may come to be 88.Genera Uniformity of Result – one
recognized and translated to legal of the aims of legal process is to
duties achieve as much as possible
 Counterpoint – law will abstain if uniformity in cases of similar kind;
more social evil may be created society is provided with a more
than prevented in its subtle and sophisticated means
intervention of bringing the law into contact with
82.Three Attitudes to the Divergency the needs of current morality
(b/w morals and law)  This instead of relying on the
1) Law and morals must ordinary reasonable man
necessarily coincide – moral 89.Ladies’ Directory Case (English
law dictates the actual content Case) – law should be directly related
of human law; morality is itself to conventionally established
merely what the law lays down standards of morality
o Thomas Hobbes –  Facts – publisher of a booklet
morality is really nothing giving information as to the
more than obeying the law, addresses and numbers of
so that an unjust law is a prostitutes was held guilty of
contradiction in terms conspiring to corrupt public
2) Both enjoy a realm of their morals
own – but moral law is still  Held – conviction upheld by the
higher law and thus provides a House of Lords; judges as the
touchstone for the validity custodian of public morals
of merely man-made law

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 and its duty to preserve the 92.Natural World (Early Civs) – no
moral welfare of the state distinction between natural world and
 Judicial Legislation – judge the world of human beings and
created a new offense not human affairs; nature is both inferior
previously punished by law; and subject to the gods
against public morals daw kasi 93.Gods and supernatural spirits
90.Elimination of Moral Judgements (Early Civs) – direct the powers and
from Criminal Law – concentrates forces governing everything in the
on achieving its social purposes; universe – including man and the
protect society and reform the conduct of his affairs on earth
prisoner rather than establishing the 94.Decree of the gods or their reps
guilt and degree of moral (Early Civs) – treated the same as
responsibility; not enough to find a natural laws
man ‘guilty’ just because he falls 95.Nature (Early Civs) – how things or
within the scope as defined by law peoples may normally be expected to
 Does not mean that if a be or behave but the
convicted person was regarded gods/supernatural powers are the
as incapable of benefiting from ones looked to for true
punishment, he would explanations of the events both
automatically have to be divine and human
released 96.Chinese – did not arrive at the notion
o Still detained if against of fixed physical laws of nature
public morals governing the universe; relied on the
 Ultimate Release of Prisoner idea of harmony as a governing
– depends w/n he will constitute principle; never succeeded in
a danger to the public developing a scientific outlook on the
 Barbra Wootton – the concept Western pattern
of responsibility could be  Harmony – not to be attained
allowed gradually to wither by natural or positive law;
away justice and harmony could be
91.Three Vital Respects in which preserved if the appropriate
Morality Impinges upon Law ritual and customary
1) Guilt in criminal law is linked observances were followed
with the idea of moral  Western pattern –
responsibility; morals reinforce presupposes the acceptance of
the authority of the law pre-ordained causal laws
2) Responsibility in law is treated 97.God – can be conceived as a divine
as excluding the possibility of lawgiver who has on the one hand
guilt if there exists a laid down the fixed order of the
circumstance of excuse which physical universe and on the other
makes the accuses not morally provided the laws to govern human
implicated (proof beyond affairs
reasonable doubt) 98.Scientific Approach to Nature
o Raison d’ etre (aka mens (Greek pre-Socratic philosophers)
rea) – responsibility of a – main objective was to explore the
crime entails a certain world of nature in order to find
mental element some principle or principles governing
3) Deciding upon the punishment the universe which would explain its
to be inflicted; by eliminating structure and functioning
the idea of moral responsibility  aka philosophic speculation
for a crime a more rational form or scientific investigation
of sentencing policy can operate  Power of Human Reason –
CHAPTER 4 | NATURAL LAW AND used to understand the world
NATURAL RIGHTS instead of just using gods

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 99.Rationalism (Greeks) – the idea  Purpose of Man – social or
that the universe is governed by political being
intelligible laws capable of being  Law – factual approach which
grasped by the human mind; it should starts primarily from man’s
be possible to determine rational behavior
principles to govern man’s conduct  Natural Justice – common to
both as an individual and in society all men; justified slavery
100. Laws (Greeks) – mere matter of because some men are slaves
conventional arrangement and by nature
there is nothing in nature which lays 103. Stoic Philosophy – universality
down what these laws should contain; of human nature and the
nature in man is just instinct brotherhood of man; reason as
101. Idealist Philosophy (Plato) – the essential characteristic of
direct experience of our senses is no humanity
more than a shadow world, a pale  Universal Law of Nature –
reflection of the reality which lies in ascertainable by reason,
the realm of absolutes beyond the touchstone for determining the
ken of immediate sense- justice of man-made laws
impressions  Polis – law of a man’s city; local
 Nature – ideal expressing the and conventional rules
fundamental aspiration of man if  Cosmopolis – law of the
his full potentialities are universal city; regarded as
reached purely rational law
 Perfect Realm – may be  Jus gentium (Stoic) – common
achieved through education in law applicable to all mankind
philosophy 104. Roman Imperium – allowed the
 Justice – absolute which can be spread of Stoicism, jus gentium
apprehended only by the and the universal faith of
philosopher and can be fully Christianity
realized only in an ideal state 105. Judaic view of Law – law
ruled by philosopher-kings; Plato represented God’s will on earth; law is
did not conceive the higher supremely good
idea of justice as a form of law 106. Early Christian view of Law –
decreed by nature and where earthly laws were mere evil arising
man-made law was subordinate out of man’s sinfulness derived from
 Law and Government – rigid the Fall of Man
and inflexible kind; law as purely 107. The City of God (Augustine) –
an ideal standard to be reached equated the platonic concept of ideal
by reason, revelation, justice with the conception of the City
intuition of God on earth when Christian
102. Naturalism (Aristotle) – rejected justice will at last reign supreme
idealist philosophy; relied on  Without justice, what is a state
observation and experience; but a robber-band?
limited to Greek city-state  Justice – part of divine law laid
 Nature – the capacity for down by God to govern mankind
development inherent in as long as our sinful earthly
particular things; the way man existence continues
behaves by reason of his  Natural Law – equated with
psycho-physical make-up divine law; miraculously
 Telos – end or purpose of a revealed; ascertainable by
thing reason; imposed by God through
 Justice – might be either the head of the Church
conventional (varying form 108. Pope – vicar of God; invested with
state-to-state) or natural the power to expound and interpret
(common to all mankind)

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 the law of God; even Kings were 113. Social Contract (John Locke) –
required to recognize this power the power of the government was
109. Scholasticism (Aquinas) – conceded only on trust by the people
rejected the earlier notion that law to the rules, an infringement will be
and government were rooted in sin the end of the trust and entitled the
and therefore necessarily imperfect; people to re-assume their
truth based on logic and deductive authority
reasoning but their grounds are 114. United States Constitution –
given by beliefs of Christian theology essentially a natural-law document
 Divine Law (highest law) – setting out the fundamental authority
could only be known through of the people and their natural rights;
divine revelation first time an actual machinery
 Natural Law – wholly rational protecting rights was brought to law
and could be understood and  Natural rights – could be the
interpreted by the light of subject of legal guarantees and
unaided human reason that these could be adjudicated
 Human Law (lowest law) – upon like any other rights and
tasked in filling in the gaps duties of secular law; rights are
left by natural law; develops the superior over any legislation
natural law rules (law of the since they are in the constitution
land based on natural law) 115. General Will (Rousseau) –
 Nature – not rigid; natural law conferred absolute and
destructible and could be inalienable authority on the people as
replaced to meet changed a whole; general will was the sole
conditions and unfettered legal authority in
110. Secular Revolution – Golden the state; any ruler could be removed
Age of the Law of Nature; by general will
emphasis placed on the rational  Rousseauism – became an
character of natural law; reason is instrument of totalitarianism;
shared by all mankind; bore fruit in they would just say that they
the United States and France represented the general will
 Grotius – said that natural law 116. Catholic Theories of Natural
would still apply even if God did Law (Modern Approach) – still take
not exist the form laid down by Aquinas; neo-
 System of Natural Law – can Thomism; idealist view of nature
be rationally constructed and 117. Philosophical Theories of
universally valid (ex: French Natural Law (Modern Approach) –
Civil Code of 1804) neo-Kantism; categorical
 Human Law – should give imperative that we should always
effect to natural law; in case of act so that our norm of conduct might
conflict natural law still be translated into a universal law;
prevailed idealist view of nature
 Edward Coke (English CJ) –  Stammler and del Vecchio –
common law could treat a strove to deduce by logical
statute as void if it was contrary principles a fabric of actual
to reason rules which they hold to be
111. Marsilio of Padua (Middle Ages) – implicit in Kant’s universal law
argued from natural-law premises in 118. Sociological Theories of Natural
favor of democracy not only in the Law (Modern Approach) – adopts a
state but even in the Catholic Church more factual approach; attempt to
112. Post-Renaissance – man apply the scientific methods to
possessed certain fundamental identify human drives
rights in a state of nature; he takes 119. Trials of Nuremburg and the
these rights over to society and is Eichmann Trial– are people
protected by natural law responsible for the crimes they

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 commit when it was valid in the laws 127. Hume – rejected natural law;
of their own state; is there a higher there are two realms of human
law which could punish those acts inquiry
 Customary International Law  Norms – what is actually the
– developed from the trials of case; can be treated as either
Nuremburg (same definition as true or false
from consti btw)  Normative – what ought to be
120. New irrationalism – arose out of the case; we cannot ever
the reaction to the rationalistic and demonstrate what ought to be
scientific empiricism of the 18th and from what actually is the case;
19th century just because capital punishment
 Nietzsche – doubted the whole is allowed it doesn’t mean that it
fabric of traditional morality and ought to be
wished to transform morals into  Human Law – characteristic of
the cult of the superman being normative since it lays
 Tolstoyism – repudiated all law down rules of conduct rather
and government in favor of a than stating facts; different from
personal vision of the duties moral norms because it calls
if primitive Christianity for a certain measure of
121. The Magic Mountain (Thomas regularity of observance
Mann) – the overwhelming  Moral Rule – may still be held
development of anti-rational to be valid even if it is never or
ideologies gave the urge for natural scarcely ever observed
law to re-assert itself  Natural Law (for Hume) –
122. Bill of Human Rights – one of the became more like a mere
most fruitful developments of Natural pretentious name for moral
Law rules
123. Duty of Judges – interpret the  The Passions – what is sought
actual constitution and not their own in the ends or aims of human
conception of some higher system of life which were determined by
law the desires of mankind; human
124. Natural Justice (English Law) – passions create moral norms
they may set aside a decision of a  Categorical Imperative (Kant)
domestic tribunal if the decision is – was an attempt to answer
contrary to natural justice; may Hume; however, this was not
refuse foreign judgement on this provable, and it also failed to
account provide an effective test for the
125. Higher System of Justice actual solution of particular
(International Sphere) – now more problems
than ever needed because of many 128. Utilitarianism (Jeremy
conflicting systems of law and Bentham) – greatest utility (what
competing nations all trying to assert served to increase human happiness)
their individual needs and claims; for the greatest number; behavior of
 Inter-planetary travel – mankind was dominated by the
stresses the imperative need for influence of pain and pleasure
some rational way of developing  One man’s happiness was equal
an international society and worth to another
standard  Law (for Bentham) – could only
 International Law – primitive be properly understood if it was
compared to other legal systems treated as an autonomous
CHAPTER 5 | LEGAL POSITIVISM field of study free from all
126. Positivist approach – epicurean issues of morals, religion, and
school of thought the like; no questions whether a
legal rule is good or bad, just or
unjust; existing law should be

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 evaluated by the standard of  Painting – a science that should
utility without any pressure be pursued as an inquire into
 Expository Law – what the law the laws of nature
is 135. Science of Positive Law
 Censorial Jurisprudence – (Austin) – only positive law (what
what the law ought to be actually is, or man-made law) is the
 Legal Duty – does not cease to appropriate subject of law as a matter
be one just because the citizen of science; law as a self-contained
is persuaded of the moral body of rules
iniquity of the duty; whether he  Persuaded that there was
chooses to comply is a sufficient in common in the
question of his conscience conceptual framework of all
o They can condemn the law legal systems to justify a
as immoral, but law general jurisprudence where
remains valid general validity is attained;
129. Hobbes – whatever the law limited to the more developed
decrees is synonymous with morality legal systems
130. Positivists – attacked natural law 136. Conceptual Approach to Legal
because it gave sanctity to laws Systems (Austin) – analyzes only
which could prevent law reform fundamental concepts and their
131. Duty of the Judge (positivist structures; answers to legal problems
aproach) – judge is appointed and can be arrived at by working out the
paid to apply municipal law, logical implications of legal
regardless of their belief principles; judiciary can regard itself
 Natural Law – judge should as isolated to all questions of policy;
refuse to apply the unjust laws operates on second-order facts
as being valid  Criticism of Conceptual
132. Positivism (Comte) – largely Approach – any developments
derived from philosophic attitudes of law will be disregarded
which were part of the climate of the because it does not conform to
period; adequqate knowledge could the previous structure; it
be attained only by employing the diminishes the law-creating
scientific method of investigating functions of the courts
reality; no validity to prior knowledge  Second-order facts – rules of
 Three developments in the law as contained in statutes,
approach to the world - recorded cases, and law-books
Religious Approach to the World associated with given legal
 Meta-physical Approach  systems
Positivist  First-order facts – actual
 Science of Sociology – whole behavior of judges and others in
of man’s social activities might relation to the complex legal
be viewed in the light of rules
scientific principles  Sociologist Jurist – law is not a
 Comte, however, eventually static but a dynamic and
favored unsupported a priori developing body of doctrine
asserts – contrary to this entire 137. Positivist Legal Theory or
life’s work Rationalist Approach (In present
133. Realist Art – attempt to create a time) – disbelief in the possibility of
new type of fiction based on scientific finding an absolute standard or norm
investigation outside the legal system itself; clear
134. John Constable – realist painter; understanding of human social
endeavored by the direct study of problems can be attained by keeping
nature to transfer to his canvases a the questions of legal validity and
truly realist and scientific moral worth distinct
interpretation of what he beheld

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  Positivist (in present time) –
usually adopts a relativist
approach to moral values; but if
some moral values was
demonstrably of universal
validity then man-made law may
be subordinated
o does not deny that rational
arguments may be applied
to the moral evaluation of
law in favor of law reform
and moral progress
 Modern Criticism to
Positivism – it gives ground for
a totalitarian who bends laws in
the guise of legal authority;
moral values do exist and can
be demonstrated to exist
 Counter-argument – legal
positivists are not moral-less;
it does not mean that since the
court is concerned with what the
law is and not what the law
ought to be that these judges or
lawyers don’t have moral
attachments
138. Universal Norms – human nature
is everywhere and at all times pretty
much the same; deep down is a
fundamental core of moral rules
139. Modern Existentialists – reject
reason in favor of the inner liberty of
the individual as the source of true
morality

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