I took my choir on a concert pilgrimage to Naga City – we were greeted by Adan Botor, my classmate at Maryhurst Seminary, who is now a successful lawyer and the father of lovely children, two of whom are lawyers , Agnes and Dominic. Together with Adan, they helped organize the concert we presented in honor of Ina, Our Lady of Peñafrancia. The following month, September, is special for her.
Adan and I were students at Maryhurst Seminary, and we both agreed that except for a few CICM priests who dared to be loving and caring, the others were as cold and depressing as a Flemish winter. One of them particularly loved us, and we hold on to his memory — and he was not a priest but a lay brother, Armand Laminneur.
Between the practices and the different meals we had together, Adan and I reminisced about our days as philosophy students of Francis Gevers who was something of a legend for us impressionable youngsters at the time. He was unquestionably brilliant. His extant writings do more than attest to his intellectual acumen. He wrote prodigious notes which were in fact tomes. They were called folla (leaves) at the time. Adan told me that his experience bringing philosophy into the courtroom has often been unfortunate. Judges, he says, seem annoyed by the philosophical questions raised.
As far as philosophy is concerned, law is paradoxical, because while it is a deeply pragmatic construct, it provides stabilizing rules that frame the myriad of relationships that can exist between two or more people, or between the person and more complex like the state. Whether “x is y” is a proposition of law is determined by two criteria: the consistency between the proposition and the problem and other propositions undoubtedly accepted as law; and the pragmatic test asks whether the proposition in question is feasible, practicable,
The fact, however, is that the law makes many philosophical assumptions. Both the laws on marriage and the law on obligations assume that the human person is master of himself, that he can commit himself by agreements and therefore assume obligations that he assumes voluntarily. Property law assumes that the resources of the land can be owned – and passed on to heirs through the fictitious institutions of will or intestate succession. Criminal law and tort assume that a person can be held liable for their actions – and these areas of law go so far as to provide exceptions, again based on the assumed judicial ability to apprehend degrees of liability. and responsibility. Political law assumes the ontological supremacy of the State, which confers upon it power over the individual human person.
It is of course true that in ordinary litigation hardly any lawyer will raise philosophical questions – nor is it appropriate to do so, and in the burgeoning roles of our courts it is understandable why a judge his eyebrows knit and his nostrils widen as the lawyer brings into the courtroom what he thinks are charming lines from Plato’s Dialogues, Aristotle’s Later Analytics or Confucius’ Analects. But even if trial courts limit themselves to the law of the black letter, philosophical assumptions remain, and unexamined assumptions can be the most treacherous traps for the unwary.
It is the legislature that must take the legal philosophy into account when drafting legislation and motivating legislative proposals. But I seriously wonder to what extent we will find philosophy in the explanatory notes that accompany the bills or even in the policy statement that we should find embedded in the law. And the lack of philosophical examination that accompanies the birth of law is evidently found in the hermeneutics of legal propositions. One cannot read more than what one will find in the text of the law. In fact, contemporary legal hermeneutics resolves the question of the vagaries of legislative intention by the principle: the intention is found in the text of the law.
But the right has to do with the rights and once we address the question of rights, we must necessarily ask ourselves the question of justice. While some would reduce the realm of rights to what is provided for by law, should we consider as vain claims which, although quite reasonable, cannot be pinned on any constitutional or legislative provision? While it may be tempting to reject claims of rights that find no guarantee in positive law, there remains the difference between the facticity of the law — the fact that it is enacted and applied as law — and its validity, i. that is to say, its reasonableness, its merit of adhesion, its rational value.
When in the past I chaired the Jurisprudence and Legal Philosophy Department of the Judicial Academy of the Philippines, I ensured that a lecture on “Justice as the End of Judgment” was included in the course guidance for newly appointed judges – because it cannot be clear to everyone, including lawyers and judges, what justice is. If courts present themselves as institutions for the administration of justice and lawyers enjoy the privilege of being officers of the court, should they not engage in philosophical conversation and discourse that should clarify what is justice and what are its requirements?