legal philosophy 1

Ray John Bangi
I-H
Legal Philosophy
Judge Andres Soriano

Universal justice and how it prevails over universal law

First, let me delimit my scope of the law in the Philippine setting. Ideally I would like to believe that there is no universal law, that the law is relative to the people’s acceptance of such law based on their religious or political beliefs. But as I went through the process of ascertaining how justice prevails over universal law I have come to the realization that I could not ideally believe such. Before going to the universal justice let me first explain my take on the universality of the law.

I used to believe that since there are concepts of law that gives varying definitions of the law, and that one of these concepts is the classical concept, the law is therefore relative to the norms upon which this law is based on. Law on the validity of a marriage subsequent to an existing valid marriage provides that such marriage is unacceptable to Christians, whose norms view such subsequent marriage as a social taboo. On the other had, such is valid to Muslims because their norms dictate that such subsequent marriage is acceptable. Law is based on the religious beliefs of the people because no one religion holds that absolute truth on righteousness and salvation. Moreover, law is relative based on the political inclinations of the subjects: national democrats may view the law in the same way as Locke, Rousseau, or other democratic philosophers view such and; social democrats may view the law the same way Marx, Lenin, and other communists view such.

I have come to the realization that these differences are disorders in the proper sense, which the law endeavors to reconcile in such a way that people espousing these differences may cohabit in a society harmoniously. This can only be done if a concept a concept of order is imposed upon the people by the law that is all encompassing or universal.

The Webster’s Dictionary defines “universal” as general or for everybody; a general proposition, concept, or idea. Moreover, “general” is defined therein as synonymous with the word universal. The established concepts of law are just general ideas on what the law is, these do not provide universal definition of the law and these do not provide for the validity of the law on a certain body politic. The law does not directly get its authority from Marxist or capitalist theories.

In a society, people have concepts of moral right and obligations among each other even without the need of any legislation. This moral rightness, to which the people give habitual obedience, is called customs, and in the book The Concept of Law by H.L.A. Hart, such custom is called primary rules. However, these customs, though habitually obeyed, are not automatically integrated into the body of laws and do not have coercive authority for their enforcement. When conflicts arise between two primary rules, no body or written rules will impose the real and correct primary rule. These are unofficial rules, which in the present reality need more coercive implementation other than the social pressure. It is in this regard that Hart thought that there are secondary rules that transform these rules into law and subsequently be given coercive authority. For a primary rule to become a law it should be recognized as a law through the rule of recognition, which specifies some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.[1]Article VI of the 1987 Constitution provides for the body that will identify these primary rules as part of the law of the land. It further provides the rule of recognizing such primary rule in the form of legislation and sections 25-27 provide for the procedural rules in recognizing such rules as part of the law of the land. These legislated laws are based on the primary rules, the custom, which the Filipino people have accepted.

The foundation of this legal system is based on the doctrine of sovereignty, which asserts that in every human society, where there is law, there is ultimately to be found latent beneath the variety of political forms, in a democracy as much as in an absolute monarchy, this simple relationship between subject rendering habitual obedience and sovereign who renders habitual obedience to no one.[2] The sovereignty is the basis of the acceptance of the law and in this country where the sovereignty resides in the people; the people therefore are the basis of the law. The people are the ones who authored these laws that were merely written by the legislators through the principle of republicanism; therefore, by mere membership in the body politic, the people have the obligation to follow the law, which they themselves authored. The constitution has never distinguished people according to their religion, culture, or political ideologies and therefore such factors will not, in any way, preclude the fact that the law is universal in scope.

The law is universal and persists as time passes. The authority of the law is not based on the legislators but rather on the will of the sovereign, therefore, as long as the sovereign exists, the law will remain valid, though it may be proven, through time, that it has become absurd. Only when the sovereign changes that the old law will lose its validity. It is enunciated therein in the case of Co Kim Cham v. Valdez and Tan Keh, wherein the Supreme Court ruled that the sovereignty is absolute and is not divested even during war. It is only divested from the people when the people themselves pass such sovereignty to others. When there is war, the exercise of sovereignty is suspended and therefore, the political law of the land is also suspended, but the sovereignty is not ipso facto transferred to the belligerent occupant so the common law of the land will remain valid. The law will, also never lose its validity because it has become inefficient. There is no doctrine of obsolescence [3]articulated in the rule of recognition in the Article VI of the Constitution.

One may argue that the stand I took is absurd because the sovereignty resides on the people and if the people do not accept such the law on account of their beliefs, then the sovereignty does not accept such law. They may have a point but as I have said, mere membership in the body politic will subject the people under the cloth of the law. The law will continue to be valid even if within the group there exists a minority who not only break the rules but refuse to look upon it as the standard either for themselves or others.[4] Dura lex sed lex so did the maxim say, and the law will never take into consideration the views of the people and put the people under its jurisdiction where transgressors will be dealt accordingly. Law brings order and members of the society do not have to conform on the wisdom of the law but still law provides a coercive authority for the attainment of order. Differences of beliefs, morality, and normative rightness are forms of disorders within the society which the law reconciles to provide a general concept of law to be obeyed regardless of these differences.

Justice, on the other hand, provides people should give others what is due. In a society there is a fusion of the paradigm of the people to form a common principle. In this line, personal paradigm of the people will be subordinated to the paradigm of the society. Such accepted paradigm of the society takes priority because it is reflective of the common interest, which by being part of the society; the member is required to embrace. Justice therefore is universal in this sense. In the Thomist tradition of natural law it has been contended that there are certain principles of true morality and justice, discoverable by human reason without the aid of revelation, even if they have divine origin and if man made law conflict with these principles, such man made laws are not valid.[5]

But justice is not always based on what is morally right or wrong. A law will not be just or unjust because of morality alone. There is a presumptive balance among the people in the society. And once this balance is breached, justice will endeavor to retain it. If A kills B by a gunshot because A mocked B’s family, there has been an imbalance between A, who was prejudiced by the superior strength of B on account of his gun. Justice therefore will retain balance by penalizing B for murder even if it will be proven that the shooting should not have occurred had A never mocked B’ family.

Moreover, Justice is relative because it endeavors to treat like cases similarly and different cases differently. If a state university is formed and in its charter it has provided that only students within the poverty line are allowed to enroll in said university, it cannot be said that the charter is unjust for prejudicing the right of the students beyond the poverty line to education. The subjects of the charter are students who do not have the financial capacity to provide for their education and therefore it is only just that free education should be given to them. It will only be unjust if students within the poverty line will only be allowed to enroll in said university if they have graduated from Metro Manila. In this case, injustice will prejudice the students who have graduated outside Metro Manila because they have the right to free education on account of poverty. Such classification should be based on certain standards so as to provide everyone equal protection of the law

When faced with conflict between the needs of justice by an individual and the society, or the needs of one cluster will conflict with that of the other cluster, justice will dictate that in making the law that will work for one and against another, the needs of the adverse party or cluster should first be taken into consideration by the legislature before enacting such law. In this was, no law though adversely affects others, is done arbitrarily to cause injustice. Justice will be applied relative to the circumstances of the subjects.

Justice, therefore, never prevails over the universal law but rather, the universal law serves the ends of justice. What is just depends upon the circumstances of the case and once what is just to parties has been ascertained the universal law will provide for ways to provide or serve the ends of justice.

[1] H.L.A. Hart, The Concept of Law second edition, New York: Oxford University Press Publishing Inc., 1994, p. 94
[2] Ibid p. 50
[3] Ibid p. 103
[4] Ibid p. 57
[5] Crisolito Pascual, Introduction to Legal Philosophy revised edition, Manila: Premium Printing Press, 1994, p. 101