Monday, November 6, 2017

Why judges must do philosophy

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Why judges must do philosophy
posted November 06, 2017 at 06:11 am 

At some time in the past, legal philosophy was part of the curriculum of law students—and was gradually eased out for more “practical” subjects. By “practical” was meant more of the “how to” stuff with which the law student’s program of study brims over: how to draft contracts, how to get persons released who have been unlawfully detained, how to get corporations to cut on taxes, how to apply for a franchise, etc. And when both the Supreme Court, by an administrative order, and the Legislature, through a statute brought the Philippine Judicial Academy into existence, while there was established a Department of Jurisprudence and Legal Philosophy—that I have chaired since—it was never a favored subject among judges who almost always and invariably demand more sessions on remedial law: how to—how to rule on objections, how to deal with motions, how to pen decisions.

In the Old Testament, when Moses spent most of his day resolving the interminable disputes of his querulous people, he was advised to select “sagely men” who would be judges over them. That exacting criterion—wisdom—continued to be expected of those who sit on the Bench in judgment over others, obviously a very high bar. For in Aristotle’s reckoning of what he called “the intellectual virtues,” wisdom ranked even higher than science. “Scientia” meant that you knew a thing through its causes. But “sapientia” demanded that you knew the ultimate causes of things.

But judges in fact are called upon to do a lot of philosophizing, and it starts with the very way they treat the text of the law. Are they to read the provisions of the Constitution or of the Civil Code in the manner persons of average intelligent understood them at the time they were crafted, or as the words stand, or as they ought to apply to our very fluid, often radically different circumstances? There are many maxims the judge can always invoke, but these maxims are by no means consistent nor coherent and many contradict each other. And so a judge must make a philosophical choice of the canons of interpretation that he applies. And as in most things, a critically recognized philosophy is to be preferred to one that is operative but unrecognized and uncriticized.

While it is not difficult to recognize highly philosophically charged issues that the Supreme Court is frequently called upon to resolve—when does human life begin, what are the parameters of that privacy that befit the human person, are rights owed only to positive law such that they do not exist absent a positive provision guaranteeing them—judges in lower courts must also wrestle with philosophical issues. Do you penalize a person under the provisions of B.P. 22 when he issues a bad check in order to pay someone who has blackmailed him, or in discharge of an unconscionable interest? To what ends is the law applied? “Dura lex sed lex” is no magic formula that resolves every knotty issue for there is the invincible conviction that somehow, all law must be “ordo rationis,” an ordinance of reason!

When a provision of law is ambiguous—either textually or in its application—then it must be presumed that the Legislature intended “right” and “justice” to prevail. But these are two extremely nettlesome problems. What is a right? How does one know that a person makes a valid and enforceable claim to a right? Does one go the way of positivism? And what are the demands of justice?

Somehow, when Philippine law incorporated the American doctrine of “binding precedent” we traded in the thoughtfulness that often accompanies the European tradition of “doctrine” that will be found in the writings of jurists and publicists who are cited with great deference bordering on reverence by Spanish, French and Italian lawyers and legal scholars. For sometime, Manressa meant a lot to the Philippine legal scholar. And Tolentino cited Ruggiero, Capetant, Castan and others in his masterful treatise on the civil code. Alas, those days of thoughtfulness seem to be behind us now, as the overriding passion of the law student—and the judge—is to get his hand on the latest pronouncement of the Supreme Court hardly ever bothering to distinguish between “ratio decidendi” and “obiter dictum”. It seems to be enough that one can quote a paragraph, a line, even a phrase, and then cite the correct G.R. number and its date to clinch a convincing argument.

In the belief that we can and should do better—and that our judges can approximate that wisdom demanded of all of all judges—philosophy remains and should remain an important part of the judicial curriculum.

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