Now, let’s have more jurists!


It was a record high for the Bar Examinations.  It has been repeatedly asked since the release of the results why there was a radical departure from the 12 percent to 35 percent usual passing rate for Bar Examinees.

As a matter both of logic and of educational measurement, the following are plausible answers: First, the students this year were more clever than their predecessors. Second, the examination questions were easier. Third, the tests were more scientifically constructed and more pedagogically sound.  I find that question legitimate—and the answer, whatever it might be, worth pursuing, because if the sharp improvement in results is attributable to tests that are more soundly constructed, then, by all means, the trend should continue.  

But not all lawyers are happy, and the reason is obvious.  For a long time now, the legal profession has been considered the privileged enclave of the few who muster the Bar Examination, no matter that a good number make it through sheer happenstance.  I have had a good number of students who hardly ever gave a correct answer in class but slithered their way through the Bar.  And so, we now are awash in lawyers in this country, and while Shakespeare would have preferred to kill some of them, I am happy rather that one more reason for delays in the disposition of cases has been addressed: The dearth of lawyers actively involved in litigation.  I found however insufferable arrogance the raised eyebrows of the deans of Manila’s so-called leading law schools about this year’s top-notchers.  It seems to be the tacit assumption that the top positions are reserved for Manila graduates, with a sprinkling tolerable every now and then, from the provinces!

But I think we should have more jurists.  And—to repeat a point I made in the past—a jurist need not be a lawyer.  The concerns are different, as are the methods and the goals of the study.  The lawyer is formed and trained to take up one side of a legal dispute over legally demandable rights and to defend a client’s interests according to the dynamics of the adversarial process.  The jurist is a scientist who investigates the law as a scientist does the object of his science.  It is the jurist who tells us the provenance of the law, the principles behind it.  It is the jurist who criticizes its assumptions, discusses its hermeneutics and relates it to social order and the goal of a coherent society.  It is the jurist who examines the moral problem of justice in relation not the positivity of the law.  For a lawyer, every law, unless declared void by the Supreme Court, is valid.  For the jurist, the facticity of the law is no guarantee of its validity—the latter, being a matter of rational consensus!

There are analogies in other disciplines.  The present Chair-Designate of the governing board of the Cagayan State University, Dr. Lillian de las Llagas, is a highly trained medical entomologist-epidemiologist and parasitologist.  She has been engaged in high-level research on dengue, among other projects.  She is not a physician.  She does not hold herself out to the public as engaged in the art as well as the science of dealing with patients in their illnesses and treating or curing them.  She is engaged rather in the scientific study of the very things that physicians treat and cure.  She has the intelligence, the skill, the scientific acumen and the time to engage in the examination of those recondite scientific questions for which medical practitioners have neither time nor expertise.   It is a like distinction you have between a lawyer and a jurist.  And we need jurists now.

We need jurists because lawyers can agree about the provisions of the law but will wonder about how the discrepant provisions should be read together, and how all of them make up the framework of an ordered society.  The recent tiff between the House of Representative and the Court of Appeals is a good example—a stand-off that prompted the Chief Justice and the Presiding Justice of the Court of Appeals to issue an unprecedented joint statement.  This is a departure from the Chief Justice’s position at the beginning of her term: that the High Court speaks through its decisions and resolutions.  And so the matter must have been serious enough to warrant such a departure.

I am also told that the committee that has worked on an amended Code of Crimes is done with is drafting labors, and is ready to submit its handiwork to Congress.  But my issue is more fundamental.  If it is a matter of re-defining crimes, increasing penalties for some offenses, decreasing them for others, then there is really not that much progress made.  I have called attention to the fact that our congested jails and the brutal fact that no one ever becomes a better person by serving time should spur us to the re-examination of penal theory, the ends of punishment, the nature of punishment and the process of penalty.  In fact, even calls for the restoration of the death penalty and spirited opposition to the proposals raise the same issue.  But this is a task not for lawyers but for jurists, and the mistake, it seems, has been relying on lawyers—prosecutors mainly—to do the job.  It is jurists who should have been tasked or, at least, consulted.

Recently, the Graduate School of Law of San Beda College granted its first “Doctor of Juridical Science” degree to Prof. Jeremy Gatdula of the University of Asia and the Pacific.  He had earlier done his Master of Laws studies at the University of Cambridge.  His doctoral dissertation addressed the challenging if testy relation between natural law, the Constitution and the Supreme Court.  When retired Chief Justice Reynato Puno opened the proceedings by commending Prof. Gatdula for having written “substantial work,” Justice Vitug interjected, with obvious praise for Jemy, that the Chief Justice’s characterization was “an understatement.”  It was a great work—not only in the number of pages it covered (which really does not matter that much) but more in the depth and difficulty of the subject dealt with. But that is what it takes to be a scientist of the law—not merely one who reviews black-letter provisions in relation to a client’s plaint or demand.  It is not, to be sure, a “practical work”: Neither bench book, nor reviewer, and the law student who hopes to find some sort of quick guide to the law will not have much use of it.  But it is exactly the kind of critical examination that a scientist produces and that the evolution of the legal system calls for.

Ever since the Enlightenment, and its decline owing to its failure to deliver on its exaggerated claims and also after humanity saw the dark side of the virtual idolatry of reason, there have been attempts to re-think the role of science.  One thing remains certain: We cannot, without serious threat to our own humanity and to the future of human cultural evolution, do without it.  And we need it everywhere—even, I should say especially, in what relates to the law!

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