Chapter 1 The Case of Law

CHAPTER 1: THE CASE OF LAW
Friday, 27 September 2019

8:43 AM
I. LEGAL WISDOM AND COUNSEL
 Lawyers and philosophers can be good fellows

Pilosopo Lawyer
Gets around things by argument Gets his client off the hook by wordsmith
BOTH: Offer solace; his wisdom His counsel
 Banality of Evil by Arendt

o Evil ascends when we refuse to act with reason, when we follow orders without thinking,
when we refuse to be human.
 Philosophy vs. Philosophy of Law

Philosophy Philosophy of Law
Love of wisdom Love of the wisdom of the law

o Philosopher-lawyers: learn the whys of the law
II. LAW'S LIKES AND UNLIKE
 Plato to Marx
o Not always been positive about law
o Law constitutionalizes the ills of society, an instrument of the status quo, which complicates
our rather simple life
o Rules are the enemy of creativity and free thinking
 Postmodernists
o Law is a self-aggrandized construct that perpetuates itself by citation after citation of
maxims
If it lives by citation then it dies by non-citation
 Denis Lloyd: summed up the thoughts of philosophers on the question of the necessity of law
relative to the belief on man's true nature
o Ovid and Seneca: if man is basically good, then he can be let alone without law
o Chinese Legists: if naturally vicious, he would need the tempers of law
 If good, he could only make good laws
 Bad; he could only make bad laws
 Scholastic view: man is naturally good but he is an imperfect creature; man-made law can be good
but imperfect
o Friedrich Nietzsche: man law's can be beyond good and evil
 Sui juris (man has his own will and reason) can get by without law but as he deals with other sui
juris, man has to make concessions, an agreements, a social contract. Hence, all societies appear
to have some form of laws, norms, or guidelines, no matter how elemental and with these comes
the need for someone who can keep and elucidate them ie. Lawyer
 Why humans need law?

o Because humans want order
o Seek systematic way of dealing with others and with things
o Laws are binding social rules on doing and undoing
o Price for civilization; the cost of organizing people to ensure the satisfaction of common
needs
o Jean Jacques Rosseau: there is a need for laws to secure man's exercise of freedom and
respect for other's freedom
o Rizal: law can bind us and make the wheels of justice grind slow; you have to speak the
language of courts if you want to be heard even if you are right
 Must law advance to become more complex as society advances?

o Depends on the political tendencies of the law
o Socialist party line is Statism: more state intervention and welfare sytems to have an equal
and stable society and economy
o Republican conservative: argue for deregulation and less and less law
o Herbert Read: a society without law and order is the very negation of society
o Thomas More: a society with few laws as it will be unjust to bind men to have too many
laws to read and are too obscure to be readily understood
o Henry David Thoreau: government is best which governs the least
II. SHOULD LAWYERS CAST THE PHILOSOPHER'S STONE?
 Practice of law can itself be a practice of philosophy

 Jurisprudence
o =case law
o The theory and study of law (Latin; juris and prudentia = prudence of law or practice of the
knowledge of law)
o Supposed to explain the nature, theory, development, and objective of a law
o To know the wisdom behind the law; understand not only the what of the law but the how
and why of it
o John Austin: the knowledge of law as a science, combined with the art or practical habit or
skill of applying it
o Exposition of legal philosophy in a case explains the underlying concept, theory, and
evolution of a legal dispute
 US SCJ Oliver Wendell Holmes and SCJ Reynato Puno: popularized writings and decisions
articulating philosophy and legal theory
o Justice Holmes: advised the study of great philosophers and jurisprudents to understand
how compelling ideas become a controlling force in the development of laws
o CJ Puno: poured scholarship on the legitimacy of laws by tracing legal rational discourses
through Western civilization
 How jurisprudence as legal philosophy will be appreciated weighs heavily on how it is being taught
in law schools
o Lord Chancellor Francis Bacon-father of the inductive scientific method
o Lord John Campbell
o Edmund Burke: founder of modern conservatism
o Jeremy Bentham: founder of modern utilitarianism
o Hugo Grotius: father of modern international law
o Charles Louis Secondat Baron de Montesquie: conceived the 3 divisions of government
o Mohandas K. Gandhi: non-violent resistance
 While it is necessary to pursue the degree of Law to be a lawyer, it is not true that one needs to
take a degree in Philosophy to be a philosopher

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CHAPTER 1: THE CASE OF LAW

Friday, 27 September 2019

I. LEGAL WISDOM AND COUNSEL

 Lawyers and philosophers can be good fellows

BOTH: Offer solace; his wisdom His counsel

 Banality of Evil by Arendt

 Philosophy vs. Philosophy of Law

Love of wisdom Love of the wisdom of the law

II. LAW'S LIKES AND UNLIKE

 Why humans need law?

 Must law advance to become more complex as society advances?

II. SHOULD LAWYERS CAST THE PHILOSOPHER'S STONE?

 Practice of law can itself be a practice of philosophy

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