DELOS REYESMITRA

TACLASTORRES

CHAPTER 7 – The Policy Science Perspective, pp 419-486

– Atok Big-Wedge Co. Inc. vs Atok Big-Wedge Mutual Benefit Association

50. The Yale Approach

51. Policy Science Jurisprudence

52. The Policy Process and Problems About Values

53. The Social Value Power

54. The Social Value Knowledge

55. The Social Value “Respect”

56. The Social Value “Income”

57. The Social Value “Safety”

58. The Social Value “Liberty”

59. The Social Value “Equality”

60. The Overarching Social Value

61. Concept of Law

62. Importance of the Policy Science Concept

63. The End in View

Successful mining company since 1931 Established a strong foundation in the

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http://www.chanrobles.com/cralaw/1953marchdecisions.php?id=56

an increase of P0.50 in wages, commutation of sick and vacation leave if not

enjoyed during the year, various privileges, such as free medical care,

medicine, and hospitalization, right to a closed shop, check off, etc., no dismissal without prior just cause and with a prior

investigation, etc.

This is an appeal by certiorari against a decision of the Court of Industrial Relations

On September 4, 1950, a demandwas submitted to petitioner byrespondent union through its officersfor various concessions, amongwhich were:

Declaring that additional compensation representingefficiency bonus should not be included as part of thewage

Making the award effective from September 4, 1950

IT IS AGAINST THESE PORTIONS OF THE DECISION THATTHIS APPEAL IS TAKEN.

Some of the demands, weregranted by the petitioner, and theothers were rejected

After the hearings the respondentcourt rendered a decision, themost important provisions of whichwere those fixing the minimumwage for the laborers at P3.20

On the issue of the wage, itis contended by petitionerthat as the respondentcourt found that the laborerand his family at least needthe amount of P2.58 forfood, this should be thebasis for the determinationof his wage, not what, heactually spends;

that it is not justifiable to fixa wage higher than thatprovided by Republic ActNo. 602; and thatrespondent union made thedemand in accordancewith a pernicious practiceof claiming more after anoriginal demand is granted.

The respondent court found that P2.58 is the minimumamount actually needed by the laborer and his family.That does not mean that it is his actual expense. Aperson’s needs increase as his means increase. This is truenot only as to food but as to everything else - education,clothing, entertainment, etc. The law guarantees thelaborer a fair and just wage. The minimum must be fairand just.

The "minimum wage" can by nomeans imply only the actualminimum. Some margin or leewaymust be provided, over andabove the minimum, to take careof contingencies, such as increaseof prices of commodities andincrease in wants, and to providemeans for a desirableimprovement in his mode of living.Certainly, the amount of P0.22 aday (difference between P2.80fixed and P2.58 actual) is notexcessive for this purpose.

That the P3 minimum wagefixed in the law is still far belowwhat is considered a fair andjust minimum is shown by thefact that this amount is only forthe year after the law takeseffect, as thereafter the lawfixes it at P4.

Frequent demands for increaseare indicative of a healthy spiritof wakefulness to the demandsof a progressing and anincreasingly more expensiveworld.

It is next contended that the efficiency bonus paid thelaborer should have been included in his (minimum) wage, inthe same manner as the value of living quarters. Whether ornot bonus forms part of wages depends upon thecircumstances or conditions for its payment.

If it is an additional compensation which the employerpromised and agreed to give without any conditions imposedfor its payment, such as success of business or greaterproduction or output, then it is part of the wage.

If it is paid only if profits are realized or a certain amount ofproductivity achieved, it can not be considered part of thewages.

In the case at bar, it is not payable to all but to laborers only.It is also paid on the basis of actual production or actual workaccomplished.

If the desired goal of production is not obtained, or theamount of actual work accomplished, the bonus does notaccrue.

It is evident that under the circumstances it is paid only whenthe labor becomes more efficient or more productive. It isonly an inducement for efficiency, a prize therefor, not a partof the wage.

The last question raised in the appeal is the grant of the increase from September 4, 1950, the date of the presentation of the original demand, instead of from April 5, 1951, the date of the amended demand. The decision states:

Both parties agreed that any award should be retroactive to the date of the presentation of the demands, which is September 4, 1950.

The terms of the stipulation are clearly against petitioner’s contention. There being no question as to its (agreement) existence, the same must be given force and effect.

THE PETITION IS HEREBY DISMISSED, WITH COSTS.

THE YALE

APPROACH

The policy orientedapproach in jurisprudencewas launched at YaleUniversity by ProfessorHarold D. Lasswell (1902-1974) and Professor Myres S.McDougal (1906-1975)when the nations of theworld were involved in thesecond world war.

THE YALE

APPROACH

The jurisprudence of policy science is aimed atthe global, regional, and national levels of legalorders.

It addresses the same age-old issue of war, andpeace, turmoil and security.

HERACLITUS OF EPHESUS (540-476 B.C.):“…the major problem of human society is

to combine that degree of liberty without whichliberty becomes license.”

CALALANG v. WILLIAMS, the Supreme Court stated:“…liberty is a blessing without with life is a

misery; but liberty should not be made to prevailover authority because then society will fall intoanarchy and neither should authority be made toprevail over liberty because then the individual willfall into slavery.”

THE YALE

APPROACH

The direct and alternative solutions to the problemof easing global, regional and national tensionswhich affects human relationships must moveaway from the value-free approach of legalpositivism.

Further, legal realism is unequal to the vastchanges occurring in the world today whichthreaten the dislocation of social values.

The policy science approach relates to thepredicament in which the world finds itself inpresent.

The plight in which the world finds itself in presentaffirms that we simply cannot afford to have war.

THE YALE

APPROACH

S.C. Nothrop (1883-1969), philosopher and teacherat Yale, advance several factors to emphasize theurgency of a new jurisprudence for free societies:

1) The fission of the atomic nucleus and proliferation ofatomic weapons,

2) The shift of the political and geophysical focus of theworld towards Asia and the East, and

3) The inescapable connection between national,regional and global problems and the equallyunavoidable fact that these problems have taken thecharacter of an ideological struggle betweensocialism and democracy.

THE YALE

APPROACH

Two other factors should be mentioned, namely:

the general abuse or disregard of human rightsand freedoms, and

the need for peaceful procedures ofcompetitions without compromising basic socialvalues.

ALL THE AFOREMENTIONED FACTORS LEND REALITY TOTHE PROPOSITION THAT HUMANKIND HAS TO PUT INORDER ITS RELATIONSHIPS WELL OR FACEDESTRUCTION.

THE YALE

APPROACH

Historian Arnold Toynbeeexplains the paradox of thestruggle between socialism anddemocracy:

After the means of improvingthe conditions of humanexistence by the technology ofthe Western civilization, the Westitself failed to do anythingsubstantial in sharing equitablywith the Third World the blessingsof social and economic justice.

A settled guideline, strategy of program adopted by the

legal order.

The discipline concerned with the formation, clarification

and realization of social values.

Policy science jurisprudence is characterized by several

features:

♣ Universities are the traditional training grounds of policy

planners, policy makers, and government officials.

♣ The emphasis given to these courses cannot respond

positively to the vital needs of the present day life.

♣ The realization of policy oriented approach to the

study is hindered by the failure to relate social values to

legal education.

♣ Apathy towards social values explains the tendency ofgovernments to view the rights of human beings as

hindrances to the exercise of governmental powers.

♠ The value-free approach of legal positivism to the

study of the nature of law is a dangerous view.

♠ The idea suggests that there need not be any moral

criterion for the validity of laws since, for legal positivists,

there is nothing immoral that is legal.♠ PSJ believes that these theories of law are incapable of

solving the needs of present systems of public order.

♠ The exercise of governmental powers has been

creeping into once private areas.

♠ PSJ posits that something more than the positivist and

realist theories of law is necessary.

♦ Policy science approach is a movement away from

the “slogans, doctrines and structures of despotism”

towards the “symbols and practice of a free society.”

♦ It emphasizes the right to life, liberty, equality, property,education, security and the free exercise of the mind.

♦ Policy oriented approach abhors the constant abuse

of human rights despite the statements that deny it in

state constitutions.

♦ Whenever there is denial of human rights, the

institutions connected with anarchy and despotism

become stronger and dominant.

♦ Free election becomes mere “ceremonial plebiscites”

♦ Freedom of expression yields to “discussions directed

by a monopoly of government and party”

♦ Political party system gives way to “leaderliolatry”

♦ Consequently, the state assumes the “socialization of

all functions”

♥ Law is an instrument for the achievement of social values.

♥ Laws would be imperfect if they ignore social values.

♥ PSJ moves away from the isolationism characteristic of

national legal systems.

♥ The effects of a country upon the rest of the world and

vice versa is a top-level factor in the pursuit of solving

national, regional and global problems.

♥ PSJ seeks the universal identification of social values:

promotion, recognition, and enjoyment of all persons

everywhere.

♥ PSJ also takes into account the recognition of the matters

that divide nations or tend to create tension among

them.

♥ The need is for a universal climate of peaceful and

transparent procedures where governments and their

leader operate under the guidance of basic social values.

♥ The eradication of war itself is still one of the primary

functions of a state.

♥ HENCE, WHEN THE UNIVERSAL IDENTIFICATION AND RECOGNITION OF

THE BASIC SOCIAL VALUES SHALL HAVE BEEN ACCOMPLISHED, THEN

THE INTEREST OF STATES IN WAR WILL DISAPPEAR.

The problems of preference and basis of choice arise. Inturn, these problems raise the issue of whether there are

some human desires that are always and everywhere

better than others.

The task of reassessing the worthfulness of human desires

in light of their meaning and importance to society in the

face of the changing experiences of the people.

≈ Must produce consistent, compatible and

principled results

≈ Develop programs and strategies to achieve this

objective

≈ Preparation of options or alternatives especially

when there is variance between strategies and

programs

These social values “embrace the

whole of our present-day

democratic preferences for a

peaceful world corresponding asthey do to the actual desires of the

people.

For PSJ, this social value must be

considered in terms of forms of

authority and facts of social control.

Refers to the distribution of the

exercise of the social value “power”

in a politically organized society.

1) Government

2) Pressure Organizations

3) Private Business Enterprises

4) Cultural Organizations

Well known in constitutional science as popular sovereignty

and the control-power of the people.

1) Making and changing the fundamental law of the

land

2) Making and changing laws and decisions

3) Holding periodic fee elections by means of the secret

ballot and not by block voting

4) Providing real access to political offices

5) Freedom to criticize public personalities and public

acts in a manner consistent with truth and decency

6) Holding all government officials accountable and

responsible for misconduct in office

7) Freedom to express, read, formulate, and publish both

orthodox or popular and unorthodox or unpopular

ideas and opinions

As social value, “power” has a two-fold meaning. Each is

indispensable to the other for without one the other would

be meaningless.

1. THE CAPACITY TO SECURE AND MAINTAIN FUNDAMENTAL

HUMAN RIGHTS. Emphasizes the struggle to secure the

recognition of the primal human rights.

2. THE COMPETENCE TO MAKE DECISIONS WITHOUT ANY

UNDUE INTERFERENCE FROM ANY GROUP OR FORM OF

AUTHORITY. Recognizes the reality that at the present time there

are private groups which, on the basis of their particular types of

patriotism or interest, have a great deal to do in the formation or

defeat of national policies and objectives.

As a social value knowledge has two basic

purposes to wit:

a) To dispel understandingb) To eradicate ignorance

Means widespread understanding among peoples of

difficult cultures and backgrounds

Freedom in pursuit of truth

The maintenance of the right to think and the right of

private judgment

In which the social value of knowledge has two distinct

meanings to wit:

a. It signifies the emancipation of the masses through

education and the ever increasing training and

instruction at all levels according to talent and

ambition.

≈ The state has the right to regulate,

supervise and aid the education of adults andchildren for his duties, responsibilities and human

relations.

In which the social value of knowledge has two distinct

meanings to wit:

b. The cognition and appreciation of how democratic

ways and processes work and the ways for it to

continue to work better.

≈ Men cannot simply remain loyal to

democratic ideas and processes without the

cognition that these are capable of making themfree.

There are four tendential functions of knowledge to wit:

1) Cultural Progress

2) Moral Progress

3) Political Progress

4) Economic Progress

“Beyond the voting and arguing relations involved in the making of policy lie many other zones

of human contact in which the dignity of the individual is involved. Human beings are respected,

in the present sense of the word, when they are taken into consideration by all with whom they

come in contact in spheres of life beyond the making of collective decisions.”

A. REGARD FOR LIFE AND LAMB – the free and unharmed

possession of the complete body.

B. REGARD FOR HUMAN PERSONALITY

1) Positive Phase

Freedom from any kind of discrimination on grounds of race,

sex, language, religion, political persuasion, or property

status.

This is meant that they have a great deal to do with the amount

or degree of respect a person may bestow on or expect from

another.

B. REGARD FOR HUMAN PERSONALITY

2) Negative Phase

Individual initiative, choice and determination arerestricted or interfered with. (e.g. outlawing subversive

organization)

As much as possible, respect for human right and

freedoms should be always restored.

1) The implementation of this social value is a very seriousproblem confronting every society, especially the

developing ones

2) It is involved in the interest of society in the dignity and

worth of the individual

THESE TWO POINTS HIGHLIGHT THE FACT THAT INSUFFICIENCY

OF INCOME DULLS A PERSON’S DESIRE FOR OTHER VALUES.

In the context of public interest:

► Economic betterment of the people

► Adequate provisions for a high employment level

► Freedom to unionize and bargain collectively

► Efficient methods of production and wise consumption

of goods and services

► Rising of the plane of living

Strives for a more equitable sharing of surplus revenue or

profit.

POSITIVE STEPS TO REALIZE FREEDOM FROM WANT:

Labor unionization

Collective bargaining

Having equitable share in the surplus revenue or profit

∆ Freedom to sell one’s own goods and services in the best market

∆ Freedom to refuse to sell them should the market not

warrant it

∆ Higher wages

∆ Fewer hours of work

∆ Better working conditions

∆ Fair measure of job security

Adequate measures should be provided in order to

counteract or remove such forms of acts and practices

promoting waste and squander of the natural resources of

the community.

RATIONALE:

→ The social value “income” as the wealth that provide

the community with the means of sustaining its economy

which, provide for the satisfaction of human wants.

→ The natural resources of a country is not inexhaustible

SOCIAL ANACHRONISM. Those living or existing just

above the bare level of subsistence where human

needs for food, clothing and shelter alone are met

to enjoy a happy life.

● Savings

According to the court, “the minimum amount

actually needed by a laborer and his family can by no

means imply only the actual minimum, as some margin or

leeway must be provided, over and above the minimum,

to take care of contingencies, such as increase of prices

of commodities and increase in wants, and to provide

means for a desirable improvement in his mode of living.”

● Minimum incomeProvisions for the means to meet both the

immediate necessities and the immediate comforts.

Simple measures:

Street lighting

Widening and maintenance of roads

Installation of traffic signs

Complex measures:

National constabulary forces

Municipal police forces

Measures for the protection of life and property from

fire and other destructive phenomena.

To be safe from danger, injury and disease.

Reduction of infant mortality

Control of pestilence such as cholera, smallpox,

influenza and dysentery

Control of debilitating diseases like arteriosclerosis,

cancer, tuberculosis, rheumatism, poliomyelitis, and

leprosy

Maintenance and support of hospitals, psychopathic

asylums, medical and health clinics, and puericulture

centers

EDUCATION IN HEALTH - attitudes and habits of healthful

living.

Maintenance and efficient functioning of quarantine

service to prevent the outbreak of pestilential and

debilitating diseases

Delineation of endemic zones as well as areas

receptive to disease or disease-bearing insects

Maintenance and purification of water supply

Development of general fitness

Regulation of tenement and factory buildings

To sum it up: Health education would result to reduction,

control, maintenance, delineation, development and

regulation in their positive forms.

Measures:

Aid for the unemployed

Financial assistance for the aged

Arising from the provisions for unemployment benefits,

fringe benefits, and old-age pensions or annuities on a

reasonable rate of contribution.

Measures:

Eradication of friction and conflict

Promulgation of specific rules with definite incentives

and/or sanctions for the purpose of certainty in the

determination of the extent and limits of the conduct

of every person in the community.

DUE PROCESS OF LAW (1) – The guaranty of the

procedural rights of the individual

Liberty – security from restraints. Freedom of the body

from external physical compulsion

DUE PROCESS OF LAW (2) – Re-evaluated

Liberty – positive qualification on governmental

excesses in the exercise of the power of taxation, the

power of eminent domain, and the police power

Liberty - deemed to embrace the right of man to enjoy the

faculties with which he has been endowed by his creator

subject only to such restraints as are necessary for the

common welfare.

Liberty- manifested in the ability of a person to do the

things which are essential to realize his or her conscience,

opportunities and interests. This needs the affirmation of

society if it is to serve as a weapon against oppression and

tyranny.

• Active mode

Liberty - legal authority, which may either be legal claim

or a legal power.

• Passive mode

Liberty - legal exemption, which may either be a legal

immunity or a legal privilege

The social value “liberty”, together with the social values

“respect” and “equality” get involved in the relationships of

the individual to the government, thus forming the

problem-area in the legal ordering of society. Quite often,

conflicts arise between individual rights and the claim of

the government to national security.

ASPECTS OF PERSONAL LIBERTY:

Freedom of a person in coming and going from one

place to another-exceptions: political nonconformity

(war, imminent danger, actual national emergency,

legal restraints placed on persons)

The security of the body from injuries-privilege of self-

defense and arbitrary arrest

The free exercise of religious belief. The state

should remain clearly neutral not just among religions but

also between believers and non-believers.

ASPECTS OF RELIGIOUS LIBERTY:A. FREEDOM OF CONSCIENCE - freedom of thought and belief,

individual autonomy in the determination or choice of religious

faith or creed as well as the freedom to join or not, or to withdraw

or not from any connection and work of a religious group.

B. FREEDOM OF WORSHIP - the unhindered acts of public (corporate)

and private (individual) worship, of preaching and teaching, of

publishing and circulating religious literature, and of upholding

religious beliefs by means of personal presence, gifts and services.

The right of everyone to worship freely in his own way or in the

tradition and practices of his own religious group.

C. FREEDOM OF RELIGION - autonomy of a religious group to

determine its creed, ritual, polity, disciplinary rules and regulations,

to organize local churches, parishes, and congregations, to

operate and conduct its activities and services, and to carry

religious creed and faith in all forms of expression to every willing

person for the purpose of persuasion, commitment and conversion.

It embraces fundamental exemptions and

immunities which have to do with property, marriage, family

and education. They are secured and safeguarded in

constitutions for the enjoyment of the people.

Minimum content:

The right of the citizens of an organized civil

society to influence and participate in the management and

operation of public affairs and political processes. Its

enjoyment depends a great deal on the physical condition

of peace and order.

► The privilege of citizenship

► The claim to be free and genuine suffrage

► The claim to peaceful assembly and association► The power of petitioning the government for the

redress of grievances

► The power of addressing public authorities on

matters connected with the political process and

operation of public affairs

► The claim to equal access to public office

► The claim to free and accurate information

► The claim to the proper disposition of the public

funds

Two main parts of the economic activities of a person:

PRODUCTION - the creation of goods and services

for the satisfaction of human wants

CONSUMPTION - the process by which services and

goods are used in the satisfaction of human wants

The privilege of choosing and preparing for and

engaging in any profession, business, industry,

employment, trade, or vocation

The privilege of acquiring, holding, using,

consuming, controlling, or transferring services,property or goods of existence.

In other words, it is the freedom as a producer or user in

a competitive system without interference from the

government beyond regulations which are necessaryto keep the economy in balance and order.

Two-fold meaning:

♪ Autonomy or right of determining and establishing

the form of government which people considersbest in safeguarding its values and rights.

♪ The task of discharging properly its external

obligations and contributing to the maintenance of

lasting peace and security.

♫ The concept of equality is traceable to the cosmopolitan

outlook of Stoic formula of equality of individuals,

nationalities, and races.

♫ Based on the maxim of Stoics that “all men are equal by

divine right since all men are of divine origin.”

♫ Cleanthes’ Hymn of Zeus, “for we are also thy offspring

and alone of living creatures possess a voice which is the

image of reason, and in the sight of God a slave is of

much value as a monarch for each is divine spark of

divine reason.”

♫ According to Apostle Paul, “for Him we live and move

and have our being as certain also of your poets have

said that we are also thy offspring.”

1. Jural Inequality

2. Invalid View of Equality

1. Equality and Balance Before the Law

a. Simple Type

b. Distributive Type

2. Equality and Balance of Opportunity

3. Equality and Balance of Rights and Freedoms

4. Equality and Balance of Political Value

Equality is not absolute similarity and among its

natural difference are race, sex, status, energy,

ability and aptitude. The German theologian Emil

Brunner come from the same source. Thus, equalityis not obliteration of the natural inequalities of

persons.

Equality is not an assurance that everyone shall, as a

matter of fact, be the same in all relations. It does

not mean a system of strict parity of property, nor anexact identity of social status, that is to say

educational attainment, honors, functions, and

standing.

Difference or inequality are jural when they are

material and relevant to legal ordering. Thus,

equality can be realized even when inequalities are

considered provided they are jural in nature.

If the inequality is material or relevant to the legal

ordering of the society then the principle of equality

is not violated.

e.g. Married and unmarried, parents and children,

minors and persons of legal age.

The clamor for absolute equality stems from the false and

incorrect perception that equality means similarity of all in

matters of social relationships. In strictu sensu this is not altogether

an impossibility, nevertheless, it is fraught with much danger for

both individual and society.

If equality is taken to mean obliteration of all educational,

proprietary, aesthetical or volitional distinctions and differences,

then the equalizing process would mean the levelling of all down

to the lowest rung.

If any levelling is to be pursued at all, it should involve substantial

mitigation or removal of irrelevant or immaterial inequalities.

The point is that social value is worth striving for in the areas

or parts where they are attainable.

The policy science approach, the doctrine that “all men

are equal” men that each person’s well being every other

person. In these areas, equality is quite decisive in the

sense that everyone has a rightful claim to equal

treatment and protection of the law, regardless of any

inconsequential and insignificant disparity.

All individuals have a rightful and lawful expectation to the

same treatment and protection and laws without regard

to persons involved.

No person is above the law as to be exempt from its

requirements, or beneath the law as to be deprived of its

protection.

☻The equality and balance before the law even when

disparities with regards to race, sex, language, religion,

nationality, property, and other grounds not affording aproper basis for distinctions between individuals, classes, or

groups are involved.

☻This means apportionment of benefits and burdens that

can be shared among the members of the society. The

law cannot set aside or disregard relevant inequalities.

☻There is equality even in inequality when it is essential and

relevant to the legal ordering of society.

Equal condition and equal access to the effective

expression of individual merit toward success or even

failure.

Criticisms:

1. They are unfair and unjust in themselves because they

conducive to reverse discrimination and

2. They are contrary to the constitutional principle ofequal protection of law.

Human Dignity is the basis of this particular aspect of

social value “equality.” It is perceived that every

human being is endowed with certain primal ororiginal rights and freedoms. These rights and

freedoms are not concessions of the government to

the people. They can, indeed, be asserted against

the government at any time.

That every individual must count for one and

only one in political participation without

regard to person.

The esteem of human personality and dignity is

the overarching social values are easier to

attain and are then widely and equitably share

among people. The social value of “respect” is

not considered at all the other social values are

difficult to attain.

It is an instrument of global, regional and

national control when “it is committed to the

complete achievement of the social values

that constitute the professed ends of

democratic societies.”