Law is not an adequate system of rules

Normative – Mass of rulesNormative System – Culture specific to what is believedDogma – What is believed to be proper or trueCustoms – ex. FiestaMores – Rights which are just

Norms- Not necessarily are legal- Identification of norm emitter ex. Revised Penal Code- Natue of consequence ex. Jail, TRO

Allott - Legal system is not necessarily only obeyed because of the physical force lurking

behind them- “Law is law because it is a law” This is a circular argument and because I said soRousseau- “Man is born free yet everywhere he is in chains One thinks of himself to

be the master of others yet remains a greater slave than they.” – Social Contractex1. A boss who is called boss and his orders are followed, but in turn heNeeds to take care of his employees

2. While a ruler gives commands, he is less free than his subject

According to Oliver Wendell Holmes- Answer to Dworkin “Life of the law has not been logic but experience.”

3 Types of Authority (Max Weber)1. Personal Characteristics – ex. Celebrities2. Traditional Authority – ex. Elders, Dynasties3. Bureaucratic – Set of rules, ex. Election

Who determines Authority?1. Recognition of Authority – ex. 3 Branches of Gov’t2. Means of resolving disputes – ex. Judiciary3. Mechanism for Interpersonal Relationships – ex. Oblicon

LAW AND SOCIETY

Emile Durkheim – Different Morals of People- Social Cohesion1. Simple, technologically undeveloped – whole group acts toward a common goal

aim, moral and legal code. Deviance? Then repressive laws are sanctioned.2. Advanced – Group become more complex and needs change. Compensatory rules

where object is not to punish but solve grievances and restore aggrieved Continuing Relationship – Same is true with damage paid to people aggravated to returnthem to status quo

In the primitive society- People do not need each other- They are repressive

Karl LlewellynLaw-Jobs Theory – Every group has a basic need which are catered for by thesocial institution of law

Robert Summers’ 5 Techniques of Law1. Remedy Grievance2. Penal Instrument3. Promote Certain Activities4. Manage Public Benefits5. Private Arrangements

Austin - Law as commands of the sovereign bodyProblem Very many rules of law do not “command” us to do things

Hart - Certain rules which impose duties upon its members concerningstandard of behavior.

1. Primary Rules – contain basic criminal law rules - Substantive, meat of the law

2. Secondary Rules – In a complex society, the primary rules will give way to secondary rules – Procedural, Descriptive1. Rules of Recognition – Who is authority?2. Rules of Change – What should be done to change?

Ex. Rules of Court3. Rules of Adjudication – Whose judge will decide and

what court?Problem Too simplified. More complex scheme required

Dworkin – Principles (guidelines) differ from rule (all-or-nothing)

Marx – Proletariat possess the labor power while bourgeoisies orcapitalists own the capital

LAW AND MORALITY Morality-Derived from divine law accdg. To early Philosophers-God’s law constituted absolute criterion of good and evil, human law was beyond criticism- is relative and changes overtime

Not everything related to law is related to moralsEx. Seatbelt law – illegal but not immoral Telling lies outside of court – Immoral but not illegal

St. Thomas Aquinas- Law should be reasonable- It’s okay to create many laws as long as reasonable

Morality is about sex and violence

Lord Patrick Devlin-Maccabaean Lecture in Jurisprudence, British Academy, 1959 March 18-Believed that it was unacceptable to distinguish between public and private morality-Society destroys itself from within

Joel Feinberg-1971 Oberlin Colloquium in PhilosophyUtilitarian concept in Ethics

1. No difference with public and private morality2. No way to find out private morality3. No need because no person is offended4. No complaint, no one gets hurt

5. Don’t punish if it is private

Lon Fuller-7 Requirements of a Legal System- Nazi legal system is inconsistent with values

Finnis- Basic Values

1987 Consti, Art. II, Sec. 6- -Separation of Church and State shall be inviolable- -Church can meddle, gov’t cant

LAW AND ECONOMY

Laissez-Faire- Free trade- Freedom from state intervention- Still regulating- Gov’t sits back and ensure economy is running smooth

1. Price Ceiling –certain rebates for those who buy, in turn economy is affectedEx. Gasoline and fuel2. Price Floor – ex. Minimum Wage

Judge Richard A. Posner (1989)- Economic is the most advanced of the social sciences, and the legal system

contains many parallelsto and overlaps with- Economics provde normative standard for evaluating law and policy

Sin Tax – When moral persuasion doesn’t work, hit the wallet- Ths law dissuades

Game Theory- Based on assuming behavior of competitors- Know the outcome of the law- In leading people to different scenario, what is efficient outcome?- Economics has provided a mathematically precise scientific theory to predict the

Effects of legal sanctions on behavior- Make decisions which apply best to youEx. Jollibee vs. McDonalds’ where Jollibee assumes how much that Mcdo cheeseburgerswill price next

Coarse Theory1. Depends on who law protects2. Transaction cost3. You have to know outcome of the law- Even there is logical and obvious, such option is not the one exactly to be followed

Ex.1. Consider a factory whose smoke causes damage to the laundry hung outdoorby 5 residents2. $150 to put smoke screen on factory of $50 each or buy dryer for a total of

$250

According to proponent- Common law legal rules are efficient- Legal rules ought to be efficient- Legal Processes select for efficient rules- Individuals respond to legal rules economically- Common law doctrine promote efficiency

Pareto-efficiency – if no one can be better off w/o makingsomeone worse off

Sole Proprietorship vs. Corporation-Corp allows individual an alter-ego-You can allow to pierce corporate veil

Role of Government- Highly intrusive laws- Plays passive at laissez-faire- Lessen crime; build more jails or build visible police force- Improve quality students; fund the school or subsidize family

LAW AND PROPERTY

Why property matters?- Property rights related to wealth

Karl Renner-argued that in a capitalist system, property is transformed from mere title to title to dominate- The worker only chooses his master, he has no choice as to whether or not he wants to workCounterargument to Renner-There is now an effective separation between ownership of property and its effective controls-Managers, not owners, exercise real power

Types of Property1. Tangible

A. Property Right - Legal Right is separate from the thing which is the object of the right - Thus, several legal relationship may arise between the property right and property object - Ownership is a bundle of rightsB. Real Property - Foreigners not allowed to own properties in Phil.

Exceptions1. Inheritance2. Used to be Filipino Citizen3. Thru corporation with a 40% less share

- PH relies on land registration system

Sole Corporation

Advantages -sole control-ease of setup-few rules

-unlimited life-limited liability-easy to raise funds-ease of ownership transfer

Disadvantages -limited resources-owner dies, businessDies-unlimited liability-difficult to raise funds-difficulty to transferpartnership

-many regulations(SEC, DTI, others)-Difficulty ofsetting up

2. Intangible RightA.Intellectual Property Rights- constitutionally protected- Phil. Joined WIPO in 1980(World Intellectual Property Org.)

Types:1. Copyright – anything one can copy2.Trademark – Mark of the trade, logosex. Coca-Cola, Acer, etc.3. Patent – innovation, formula

1993 – Kantro-Navarro Agreement removing Phil. From blacklist

1995 – Special Courts designated to hear cases involving intellectual property rights

1997 – RA 8293, the IP Code of the Philippines was enacted and made effective on Jan. 1, 1998

Laws governing property-Pre-nups or ante-nuptial agreements- ACP or conjugal property with few exceptions- Legislations re: forests, mining, fishery resources, clean air, solid waste management, etc.

Recent problems1. Digital Technology

- Videotaping ex. case against Sony allowing piracy- File-sharing

2. Internet- eLibel- eCommerce- Right to privacy- Evidence

LEGAL SYSTEMS OF THE WORLD- Ethnic or cultural- Religious

1. Egyptian Legal System - Began in 4000 BC- Monarch was supreme ruler- Oldest Court record found in papyrus in 2500 BC- Earliest recorded treaty is Hittite- Disappeared after Romans defeated Cleopatra at the Battle of Actium

2. Mesopotamian Legal System - 4000 BC- King was foundation of justice- Code of Hammurabi – oldest treaty discovered- Inscribed in 8 ft. pillar of black diorite- Contained 300 sections (earliest known national code)- Contained crime, family, property and commerce- Oldest negotiable instrument is promissory note- Ended under Greeks I 100 BC

3. Hebrew Legal System - Nomadic and pastoral agricultural and commercial- Developed 5 well-defiend stages

A. Mosaic – theocracy and authority ascribed by God. Replaced leader with hierarchy of courts- Ten Commandments, Genesis, Exodus, Leviticus, Numbers, Deuteronomy

B. Classic – Senate is supreme authority. 71 members of SC

C. Talmudic – compilation of all reports of recorded cases Mishna – codified texts Gemura – Commentary

D. Medieval – Rabbi wrote treaties and compiled codes thus preserving traditions of laws

E. Modern Jewish – Talmud was critically studied and translated to various national languages. Scroll of Law (torah)

F. AD 1600 – Nationalism in Europe forced the Hebrew language to become only a secondary one for the Jews.

4. Chinese Legal System - Oldest surviving legal system- Never conquered another territory- Have strong clan and family structure

-Confucius – Chief justice of morality and practical politics

- believed in a government of men, not law - Good ruler makes happy people. - Ta-Tsing-Lu-Li or Code of Ching became law on 1650 until 1912- Lu is proper code and never changes- Li is flexible and adapted to progress - Annual edicts and judicial decisions - Commentaries on the Lu

5. Hindu Legal system Two Branches1. Buddhism

- enlightenment- propagated by 30-40 edicts engraved in stone of King Asoka- most of the edicts expounded and promulgated his system of moral law or dhammma

2. Brahmanism – Hinduism, most applied -nature worship -Brahma, supreme being

- Law book of Manu – law book of Brahman Hindu System- Brahman Rules of Caste – determines religious, social, economic and domestic life- Untouchables – Marriage between caste is forbidden- India had hundreds of principalities- Maharajah was rules of each

6. Greek Legal System - Secular system of law- Polis same as barangay (Polis where politics was derived)- Polis (8th century BC) was the unification of various communities- Solon (6th century BC) or congressman is a statesman and lawmaker- Great art of oratory (cross-examination) developed- Socrates was known for the art of cross-examination as mode of extracting

truth- Founded the first college (Plato) named the Academy- Phillip of Macedon united city and states- Assembly of People (Agora) King consulted this assembly- Most popular contribution is jury court- King is the head Chief justice and warlord of tribes

7. Roman Legal System - Considered most lasting and pervading- embraced public, sacred, private and customary laws- What survives today is limited to private law on property, torts, contacts- called Civil LawThree PeriodsA. Archaic (Infancy)

- Aristocratic controlled by senate- Knowledge of law is limited to sacerdotes publicii (royal class)- Twelve Tables

B. Republic (Youth)- Citizenship in Rome was considered membership in privileged class- Ius civile – Roman to Roman- Ius gentium – Roman to other nation- Ius gentium is superior- Ius gentium invoked to meet cases- Ius aequum- University of Bologna, Italy started to teach Corpus Iuris Civilis- Augustus Caesar gave impt. Opinions to jurists

C. Classical- imperial period became autocratic- Jurist became official advisers and prepared statutes- Justinian Code became Napoleon Code- Corpus Juris had four works:

1. Codex2. Digesta or Pandectae3.Institutiones4.Novellae

8. Celtic Legal System - Druids ruled in fear, there was bloodshed and legal sacrifices- Druids known as Brehons- Code of Howell The Good (Hyvreithu Huvel Dda) replaced Justinian Code

9. Slavic Legal System - Everybody owns everything- Russian, Serb, Bohemian (Czech) and the Polish- Rules established by men who have control of the power and which are

enforced against the recalcitrant by the lash ,prison and murder- After centuries of discontent, the March Revolution- Civil Code of Russia is different among any other country (Communism)

- Property is not important

10. Germanic Legal System -Secular- Four stages:A. Prehistoric period of the VikingsB. Long period of Goth migrationC. AD 800 to 1400D. Last period of 1400 AD-Thor is god of Law-Forsete is god of justice-Law gave great attention to securing justice

11. Japanese Legal System - 17 Maxims of Shotoku – code of political and social morality- military state- Tokugawa Legal system-Satsumas and Choshus combined and abolished Shogunate and resurrected emperor as supreme ruler- Meiji, or Mutsushito, a boy who became emperor and known as the great Meiji Restoration

12. Anglo-American Legal System

Common Law in England (Angle Land)- local courts applied customs as rules-827 AD, Egbert of Wessex became ruler of Angleland-William, Duke of Normandy, foundations for customs made-King was last resort to justice-Common law evolved and Kinf created court of chancery to provide relief for equity- System of Equity1. He who comes to Equity must come with clean hands2. Equity will not suffer a wrong to be w/o remedy3. Delay defeats Equity4. Equity looks to the intent rather than the form

Equity – equality, what sounds rightCommon Law (civil law) – codified, if no law, no relief

Common Law in United States-13 colonies-under control of England-1776 independence-1788 constitution of Federalism-All derived common law of England except Louisiana-John Marshall, CJ from 1801-1835, 1st to proclaim doctrine of judicial supremacy

13. Catholic Papal Legal System and Canon Law -Canon Law affects Catholicism and Mohammedan-Canon Law is Church Law-Protestant reformation resulted in Canon law no longer recognized as law of Christian life-Pope Pius X created a commission of cardinals and scholars

-Canon Law affects Catholic penalties-Canon Law resembles secular law- Tametsi – Marriage Law- Canon Lawyers not usually secular lawyers

14. Mohammedan Legal System- Founded by Mohammed in Mecca- Muslims were sole vehicle of the world active in intellectual and arts

during 800-1200, the dark ages of Christianity in Europe- Dogma is theory while moral is practice- Morals are divided into 4 points:

1. Alms2. Prayer3. Pilgrimage to Mecca4. Fasting

Sources of Islamic Law:1. Koran is word of God written by Mohammed the prophet2. Sayings and conduct of Mohammed as preserved in traditions3. Treaties of jurists

-