Legal Philosophy

Topics: Law, Jurisprudence, Natural law Pages: 3 (612 words) Published: February 19, 2013
Legal Philosophy
Positive Law

Law as the Sovereign’s Command – John Austin
* the subject of jurisprudence is positive law
* law set by political superiors to political inferiors

Command – a significance of desire
In commands, unlike in other significations of desire, the one commanding has the power to inflict evil or harm upon the one commanded, once the command is ignored.

Command and Duty are correlative terms (parang games lang, haha!) * wherever a duty lies, a command has been signified
* whenever a command is signified, a duty is being imposed

Law is a command which obliges a person or persons, and obliges generally to acts or forbearances of a class.

Sovereign is that individual or determinate group of individuals * toward whom the bulk of the society has a habit of obedience and * who in turn not habitually obedient to anyone else

The Path of the Law – Justice Oliver W. Holmes, Jr.
(Published in Harvard Law Review)
* popularly called the Bad Man or Prediction Theory of Law * If one wish to know what the laws of society are, one must approach the question from the perspective of a bad man. * The bad man does not give two straws for morality but he, no less than the good man, wishes to avoid an encounter with the law. When he asks his lawyer whether some contemplated action is legal, what he wants to know is how public power is going to affect him. In answering this question, the lawyer’s job is one of prediction.

LEGAL DUTY is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court – and so of a legal right.

* There is a “true law” discoverable by “right reason” * Knowledge of law is shared by all persons

JUSTICE is the supreme virtue because it is the foundation of social solidarity.

De Ligibus, Book I, Chapter X-XIII
* Men are born for justice, based not upon men’s...
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