I TOOK my choir on a concert pilgrimage of Naga City — we were hosted by Adan Botor, my classmate in Maryhurst Seminary, who is now a successful lawyer and the father of lovely children, two of whom are lawyers, Agnes and Dominic. With Adan, they helped organize the concert we presented in honor of Ina, Our Lady of Peñafrancia. The next month, September, is special to her.
Adan and I were students at Maryhurst Seminary, and we both agreed that except for a few CICM priests who dared to be affectionate and caring, the rest were as cold and as depressing as a Flemish winter. One though was particularly fond of us, and we hold his memory dearly — and he was not a priest but a lay brother, Armand Laminneur.
In between practices and the different meals we took together, Adan and I reminisced on our days as students of philosophy of Francis Gevers who was some kind of legend to us impressionable youths at the time. He was undoubtedly brilliant. His extant writings more than attest to his intellectual acuity. He wrote prodigious notes that were actually tomes. We called them folla (leaves) in those days. Adan told me that his experience at introducing philosophy into the courtroom has often been infelicitous. Judges, he says, seem to be annoyed about philosophical issues being raised.
In respect to philosophy, the law is paradoxical, for while it is a thoroughly pragmatic construct, it provides stabilizing rules that frame the myriad relations that can exist between two or more persons, or between the person and more complex constructs like the State. Whether "x is y" is a proposition of law is determined by two criteria: coherence between the proposition and issue and other propositions indubitably accepted as law; and the pragmatic test asks if the questioned proposition is workable, practicable,
The fact, however, is that the law makes many philosophical assumptions. Both the laws on marriage as well as the law on obligations assume that the human person is self-possessed that he can bind himself through agreements and thus assume obligations that he voluntarily takes upon himself. The law on property assumes that the resources of earth can be owned — and passed on to one's heirs by the fictive institutions of testate or intestate succession. Criminal and tort law assume that a person can be held to answer for his actions — and these areas of law go so far as to carve out exceptions, once more based on the supposed judicial capacity to apprehend degrees of responsibility and liability. Political law assumes the ontological supremacy of the State that bestows on it power over the individual human person.
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It is true of course that in run-of-the-mill litigation, hardly any lawyer will raise philosophical issues — and neither is it appropriate to do so, and in the burgeoning dockets of our courts, one can understand why a judge knits his brows and his nostrils flare when the lawyer brings into the courtroom arguments that he thinks may be charming lines from the Dialogues of Plato, the Posterior Analytics of Aristotle or the Analects of Confucius. But even if trial courts confine themselves to black-letter law, the philosophical assumptions remain, and unexamined assumptions can be most treacherous pitfalls for the unwary.
It is the legislature that must deal with the philosophy of the law when it crafts legislation and provides reasons for legislative proposals. I seriously wonder though how much philosophy one will find in the explanatory notes that accompany bills or even in the declaration of policy that one should find enshrined in the law. And the dearth of philosophical examination that accompanies the birthing of the law obviously finds its way into the hermeneutics of legal propositions. One cannot read more than will be found in the text of the law. In fact, contemporary legal hermeneutics resolves the question of the vagaries of legislative intent by the principle: Intent is found in the text of the law.
But law has to do with rights and once one takes up the issue of rights, the question of justice must perforce be asked. While some would reduce the kingdom of rights to what is provided for by law, shall claims be considered vacuous that, though plainly reasonable, cannot be pinned on any constitutional or statutory provision? While it may be tempting to reject claims to rights that do not find any guarantee in positive law, there remains the difference between the law's facticity — the fact that it is promulgated and enforced as law — and its validity, i.e., its reasonability, its worthiness of adherence, its rational worth.
When, in the past, I chaired the Department of Jurisprudence and Legal Philosophy of the Philippine Judicial Academy, I saw to the inclusion of a lecture on "Justice as the End of Judging" within the orientation course of newly appointed judges — because it cannot be taken that it is clear to all, lawyers and judges included, what justice is. If courts hold themselves out as institutions for the administration of justice and lawyers enjoy the privilege of being officers of the court, should they not indulge in the philosophical conversation and discourse that should make clear what justice is and what its demands are?