MAURICIO, OMAR KAREEM V.

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Legal Philosophy
Atty. L.B. Palicte III
I. Summary of Legal Philosophical Theories and Differentiation
The development of complex statutes and constitutions bring with it
the development a constantly changing perspective towards legislation,
constitutions and statutes in general. More specifically, the rise of political
and legal philosophies grown parallel to the practice, interpretation and
creation of laws such that laws have been deemed just or unjust, moral or
immoral, in light with dominant philosophical and political perspectives of the
time under which particular statutes and constitutions were drafted and
enacted. This claim, of course, is made without prejudice to emphasizing that
legal philosophy is merely a temporal academic enterprise. On the contrary,
the multitude of legal philosophical theories may be seen as moral and
academic perspectives utilized to justify the rightness or wrongness of the
law, or its morality or immorality, or its prudence or impetuousness.
From a historical perspective, it is worthy to recognize that Platos legal
philosophy was one of the first widely recognized legal philosophies. Platos
concept of nomos (basic law) and how only could create a polis, is highly
anchored in his metaphysical philosophy of the World of Forms. Nomos is
merely an image, so to speak, of the idea of Justice that exists perfectly in
the world of forms. Being an imperfect manifestation of a perfect idea, Plato
admits that nomos may, at times, seem contrary to the idea of justice a
natural consequence of its imperfection. In The Republic, Plato adheres that
law is merely a secondary source of governing authority; the perfect ruler
being the philosopher king.
The Thomist philosophical theory, unlike the Platonic legal philosophy,
relies less on the metaphysical notion of the perfect ideas and more on the
perfection of mans unique faculty reason. St. Thomas Aquinas is,
unarguably, among the proponent of the Classical Natural Theory of law
whereby law is deemed to emanate from reason. Such philosophical theory,
therefore, is a derivative of the Aristotelian tradition. The Thomist legal
philosophy differs from the Aristotelian philosophy in that reason is used in
the sense that it is a faulty through which lex aeternas (eternal law). Law,
being a product of reason is, hence, a codification of the eternal law,
discerned by man. The Thomist legal philosophy creates a link between law
and morality; a feature largely disputed by the Hobbesian legal philosophical
theory.
Thomas Hobbes argues that the Classical Natural theory proponed by
Aquinas is highly teleological and regards it as illusory and impractical. His
arguments come mostly from a discernment of the state of affairs where

MAURICIO, OMAR KAREEM V. | 1A

Legal Philosophy
Atty. L.B. Palicte III
many dispute the authority of the Church and the upright pronouncements
of the times leaders. Hobbes, therefore, proceeds to say that the birth of
laws is not due to the product of reason but due to the want and instinct of
men to protect their properties; to protect themselves from the state of
nature. Hobbes defines state of nature as that state where no laws or
government regulates the activity of the people. He posits that such state
would naturally lead to chaos and, thus, the people surrender their absolute
freedom to a government (the Leviathan). From such surrender, rights are
born. Those who surrender their freedom to the government, in return, are
guaranteed that their properties, their rights are secured and protected.
Laws, hence, are intended to regulate the peoples activities to be able to
protect these created rights.
Charles Montesquieus legal philosophy, unlike that of Platos, Aquinas
or Hobbes is highly descriptive rather than prescriptive. He believes that
divine and eternal law, although infallible, are impossible for the human
reason to fully perceive and understand. Positive laws (man-made laws), in
contrast, are highly fallible. Nevertheless, positive laws, as a remedy to its
fallibility ought to be understood and taken in consideration of various
factors such as the people for whom they are framed..., the nature and
principle of each government, ... the climate of each country, the quality of
its soil,. Montesquieus legal philosophy highly consists of the understanding
of social factors to be able to reform laws which apparently create chaos
rather than order.
Jean Jacques Rousseaus legal philosophy, on the other hand, is more
commonly known as the social contract theory. According to this legal
philosophy, laws are created due to the will of the people to maintain
freedom, whereas in the state of nature, man is free but is in danger of being
trampled upon by other men without the guidance of the government.
Although somewhat similar to Hobbesian legal philosophy, Rousseaus
philosophy differs in that it provides for the source of the validity of the laws
by referring to the general will of the people as source of its authority. Hence,
rule and sovereignty is shifted from government to the people in protection
of the latters freedom and civil liberties.
A more critical diversion from the lineage of legal philosophies is
Immanuel Kants Critique of Pure Reason. Kant provides that the concept of
God, freedom, morality are imperceptible. Thus, none may really be
said about them. To this regard, these are social constructs which are part
only of what may be used to determine and enact truly rational laws. One

MAURICIO, OMAR KAREEM V. | 1A

Legal Philosophy
Atty. L.B. Palicte III
highlight of Kants philosophy is that laws ought to be categorical in that they
do not admit of exceptions they must be meted out equally.
Lastly, John Lockes legal philosophy puts punishment as a central
power of the sovereign, assigned by the people. He also provides for the
separation of powers between the branches of government whereby the
legislative is seen as the most authoritative since it is the laws which provide
a mandate to the executive branch to carry out its provisions.

II. Application
1. Scarborough Shoal, Arbitral Tribunal, and UNCLOS
The Scarborough Shoal is clearly a matter of conflict in sovereignty and
the rule of law. Plato explains that laws are, at best, manifestations of perfect
ideas and that its imperfection often leads to conflict with the idea of Justice.
In the same way, the claim of the Philippines to the shoal is highly sketchy
and unsupported by constitutional grant. Kants rational analysis and use of
reason to resolve the situation is also highly applicable. Resolution of the
issue through the Arbitral Tribunal is a highly rational move where laws are
discussed so that sovereignty may be properly established.
2. ARMM and Framework Agreement with the Moro Islamic Liberation Front
(MILF)
The Philippine governments approach in dealing with the MILF through
the Bangsamoro agreement is best seen in Charles Montesquieus legal
philosophy where social factors are highly considered to be able to enforce
changes in laws and statutes. The Bangsamoro agreement takes social
factors into grave consideration, particularly the cultural difference between
practicing Catholics and Muslims. By entering into such agreement, the
government provides for a way to accommodate and settle social differences
and social practices by making the Muslim-Filipinos less dependent on the
national government. Local laws in the region will, therefore, be more suited
to the practices of majority of its locals which are more, or less, related to the
practices of Islam.
3. Cybercrime Prevention Act of 2012 (RA No. 10175)
Cybercrime prevention is a highly punitive act. Although many contest
that it is an invasion of ones privacy and right to freely access the internet,
it is an act which is in consonance with Lockes concept of the States

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Legal Philosophy
Atty. L.B. Palicte III
exercise of punitive actions to regulate citizen activities, especially when
such actions give rise to crimes that infringe on properties (mostly
intellectual) and liberties of others. The Cybercrime act may be deemed as
the states right to curtail freedom insofar as it violates law and so far as it
unduly takes away what properly belongs to another.
4. Freedom of Information Bill
Jean Jacque Rousseaus application of the general will greatly justifies
the enactment of the FOI Bill. It is within the purview and purpose of the said
bill to allow the general public to have access to public documents and other
similar papers which involve transactions by public officials to allow citizens
to assess and monitor dealings in the government. The FOI Bill, when
approved would allow for a more conscious and direct regulation of
government affairs by the public, made manifest through the publics
general will which may be effected through various means such as voting
choice, influence on local legislators or a more active involvement in
governmental affairs such as holding of office or public demonstrations and
mobilization.