Law and Jurisprudence Flashcards
Define Jurisprudence or legal theory
It deals with the general philosophy of law, that is to say the nature and elements of the law.
It is concerned with the theoretical and technical aspects of law as a discipline.
Question of the nature of law
It is concerned with its derivation, development and thrust.
Question of the elements of the law
It deals with legal concepts which are material to the legal ordering of society.
Different schools of jurisprudence
Historical, teleological, positivist, functional, realist, policy science
Define Historical School of Jurisprudence
It appraises the law in the context of the common consciousness of a group of people.
Define Teleological School of Jurisprudence
It thinks of the nature of the law in terms of the moral and rational nature if humankind.
The question that Historical School of Jurisprudence seeks to answer is:
Where did the law come from and how did it evolve?
The question that Teleological School of Jurisprudence seeks to answer is:
What is the telos of the law?
Define Positivist School of Jurisprudence
It considers the law as a conscious norm of the state backed by its authority and force.
The question that Positivist School of Jurisprudence seeks to answer is:
What is the distinctive structure and content of the law?
Define Functional School of Jurisprudence
It views the nature of the law in terms of the jural postulates, social interest and national policies of the people.
The question that Functional School of Jurisprudence seeks to answer is:
How does the law work in weighing or adjusting the competing individual and public interests?
The question that Realist School of Jurisprudence seeks to answer is:
Is the law verifiable in the practical life of the people?
Define Realist School of Jurisprudence
It takes the nature if the law on the basis of the on-going experiences and inter-experiences of the people.
Define Policy Science School of Jurisprudence
It looks at the nature of the law in relation to the degree of success of society in the creation, clarification, and realization of social values.
The question that Policy Science School of Jurisprudence seeks to answer is:
What is the basis and the limits of global, regional and national legal orders and relation to social values?
Definition of Law (Lapitan vs. PCSO; Sanchez Roman; Arturo Tolentino)
Law in its specific and concrete sense is a rule of conduct, just, obligatory, formulated by legitimate power for common observance and benefit.
Definition of Law (Edgardo Paras)
A reasonable rule of action expressly or directly promulgated by competent authority for the common good, and usually, but not necessarily, imposing a sanction in case of civil disobedience.
Definition of Law (Aquinas, Summa Theologica, Q.90, A.4)
The definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community and promulgated.
Definition of Law (Max Weber, Law in Economy and Society)
An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, and will be applied by staff of people holding themselves especially ready for that purpose.
4 Elements in Aquinas’ Definition of Law
- Ordinance of reason
- For the common good
- Promulgated
- Legitimate Authority
Basic Features of Law According to Weber
- The duty to comply
- Due to external actions or threats
- By individuals tasked to enforce the law
The Recurring Element
- Coercion by a legitimate authority
- You would rather not follow but it is required
- Fear of material consequences
Definition of Law (applicable to other fields)
Any rule of action or order of sequence from which any beings whatsoever either will not, or cannot, or ought not to deviate.
Define Rule of Action and give example
It is any warrant, instruction, measure, regulation, or decision governing any act, conduct, transaction, or proceeding, including its consequences. Traffic regulation promulgated in accordance with a city or municipal ordinance.
Define Order of Sequence
It is any system of arrangement or consecutiveness, or any uniformity of a given group of phenomena.
Difference of Rule of Action and Order of Sequence
A Rule of Action differs from Order of Sequence in that the former is relative while the latter is absolute.
Classifications of Rule of Action and Order of Sequence
- Determine the activities of human being
- Determine the motions and even the instincts of dumb creature
- Determine the origin and growth of living organism
- Determine the movements and courses of inanimate bodies or masses
Types of nondeviation
- will-not
- cannot
- ought-not
Define Will-not
There is a determination to abide with or avoid violation, the rules of action and orders of sequence.
Define Cannot
There is no other way but to obey or comply with the rules of action and orders of sequence, no matter how much the desire to act otherwise may be.
Define Ought-not
