It seems to me important to stress to young aspirants wishing to enter the legal profession that “law and economics” are clearly just as closely conjoined as “law and justice” or “law and order.”  Law cannot be divorced from the principles that undergird our concepts of economics.  For instance, success in law practice owes much to the understanding of the fundamental principle of supply and demand.

That’s why there is folk wisdom in the observation that in a town with only one lawyer, the lawyer will starve.  But if there are two or three lawyers in a given town, all will prosper.  The supply of disputes will determine the demand for advocates, and vice versa.  The presence of possible advocates for many litigants ensure that neighbors (not just rich taipans) will have access to ample professional services by available lawyers pro and con.  Think it over, and see why a one-lawyer town is less litigious and perhaps more peaceful than our typical towns.

But, in actual fact, the time has come when the shortage of practicing lawyers are actually felt in some areas of our country.  In my home province, there was a time when lawyers were the ones waiting for the judge to arrive so trial of cases could start.  I understand the situation is now reversed: the judges in some municipal courts have to patiently wait for the counsels of parties because lawyers are so few and they come from distant places.  If trial could not be held in the morning, because the lawyers are engaged elsewhere, the concerned court will set the hearing in the afternoon and wait for lawyers to come, even if already late.

Even more noteworthy, the judiciary has lots of vacant salas.  Why?  One reason is that in certain towns or districts, there are no available applicants seriously interested to be considered by the JBC [Judicial and Bar Council].  Sometimes, the JBC will publish names of applicants for one sala and repeat them as available for other salas, just so the JBC can comply with the 3-applicants per sala rule when JBC submits nominees to the O.P. for her actual appointment.  So there you are—there are not enough lawyers to go around, so how can we solve the 29% vacancy problem in lower courts?

Tomorrow, over one thousand new lawyers will take their oath.  But if the Court were more strict, as it had been in the past, and less compassionate as it was before, the number could have been much less.  The passing grade in some subjects had to be adjusted (by 5%) to avoid further critical shortage of—not just imported rice—but home-grown lawyers.  We averted such crisis this year—but what about next year?  Laugh if you may, but it is no longer funny.  You may need lots of luck.

If there is any progressive development in the bar (IBP as well as PBA), it is the increase in the number of lady barristers (which is also to say female law students).

In the Supreme Court, when I started there ten years ago, there was only 1 lady Justice.  Now there are 5 ladies out of 15 members.  The number actually reached 6, until Madam Justice Angelina Sandoval-Gutierrez retired a few months ago.  When ladies will reach 7 in Court, then we will have a true numerical and gender balance of Associate Justices, leaving only the Chief’s post for contention.

Last but not least, I do hope to alert you about a development in jurisprudence or legal theory, which could be dismaying to say the least, until properly counter-acted.  I refer to what has been referred to as the indeterminacy thesis.

It has been said that many (American) law students, even in their first year, already get a sinking feeling when they ask themselves:  “Does the law actually make any difference to the way cases are decided?”  In later years, they encounter the abovecited thesis, as if in reply to their doubts: “The laws have nothing to do with how cases come out.  They are just window dressing that skillful lawyers and judges can manipulate to justify any decision they please.”

Stated another way, the strong indeterminacy thesis claims that in every possible case, any possible outcome is legally correct.  Or, in a more extended way, the strong indeterminate thesis says: “In any set of facts about actions and events that could be processed as a legal case, any possible outcome—consisting of a decision, order, and opinion—will be legally correct.”

That’s why some practitioners say, knowing what the judge had for breakfast is more important than knowing precedents.

Mind you, this debate on the indeterminacy of law has been going on for several years, presumably since 1980’s, among professors of foreign law schools who are in the forefront of current jurisprudence, legal theory, or legal philosophy.  I have asked a previous law dean here if the indeterminacy theory has been taken up in Diliman.  It seems not yet current here.  But I say the sentiment here among us about the law is not unknown.  There are critics who say the Supreme Court is right even if in several given cases our decision is wrong.  The Court’s decision, some say, is not final because it is infallible but it is infallible because it is final.  Of course, nobody yet has opined here that “the law does not constrain judicial decision.” Or that, “any result in any legal dispute can be justified as the legally correct outcome.”

If your reflections have reached this far concerning the law, I say you can be in very progressive company.  As Prof. Lawrence B. Solum, in the University of Chicago Law Review, calls it, this is the “indeterminacy crisis” of the law for critical law students, which I think is as real as the rice crisis for rice gourmet eaters.  But he also identifies the source of the crisis and the criticism, which is the Western (or) “liberal conception of the rule of law” that scholars say “serves to mystify and legitimate the legal system and thereby obscure the real issues behind individual cases as well as the real nature of the legal system.  According to critical scholars, legal discourse conceals and reinforces relations of domination.”

What, then, can we do in the face of legal indeterminacy?  Well, my view is far from radical.  But let’s all go to the root of mystification of law and see how law can stand by itself, without being obscured, to be applied without traces of domination such as colonialism, elitism, racism, or other issues that defeat freedom and equality, justice, and democracy.

For lawyers and law students, however, the severe implications of legal indeterminacy claims may be mitigated by our knowledge that (a)  our courts of law are also courts of equity; and (b)  the rule of law is actually a rule of reason, not  a rule by law imposed by the dominant class, past or present, as a substitute of naked force.

In practical terms, in day to day practice and in decision-making, the indeterminacy of law should call into play a methodical exhaustion of our conception of justice by reason and compassion even to the extent of running empty of alternatives.

As Prof. David Schmidtz of the University of Arizona tells us in his book, Elements of Justice: “We should keep in mind that the basic concept of justice often is determinate enough that we can see what is just without needing to appeal to other goals and values.”

Suffice it then that we know that while law which is indeterminate may not constrain our judgment, surely the demands of justice—which is quite determinate—will surely move each of us, as lawyers or judges, to proclaim what is due a person in a given situation, what is fair, and what is mutually satisfactory, hence what is in principle truly just.  Doing justice, even to the extent of exhaustion or running empty is, simply said, our ineluctable duty.