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8/13/2019 Legal Philosophy Presentation
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The Historical
Perspective
Legal PhilosophyAtty. Vyva Aguirre
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Historical Perspective as a
Starting Point
Alfafara||Calica||Florido||Padua||Serrano 2Freidrich Karl Von Savigny (1779-1861)
The concept of the soul
and spirit of the people
(diwayan) provides the
sense of beginning andunfolding of the law.
The concept of the
folksoul has lost a gooddeal of its appeal to
many legal philosophers
and jurisprudents.
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Historical Perspective as a
Starting Point
The ideas of soul and spirit are rarely used in the worksof modern philosophers.
All ideas are generally used to mean a high degree of
intelligence which they call minded action. Modern jurisprudents have ceased to consider or to pursue
the historical perspective as to the nature of the law.
Stone feels that the historical perspective of the nature of
the law is only a chapter in the development of law insociety.
It is still useful in the evaluation of the legal development ofa nation especially its legal history.
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Historical Element in Law
Due to the inevitable conflict of wants some kind of
social order evolved in order to settle or harmonize
conflicting or overlapping interests.
Based in some recurring decisions or adjustments of
conflicts of interests.
The precepts defining rules of action were classifies
and with the evolution of some form of governmentserved as the beginning of the legal order.
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Historical Element in Law
The presence of the historical elementin law is thus manifested by at leasttwo important marks:
The changes in social existence of thepeople and
The progressive conditions of theirpolitico-legal development.
Historical Jurisprudence , the law couldnot have thrived except in thisenvironment.
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Historical View Limited in Scope
Peculiar to a group of people.
Accepts the idea that what ispeculiar to a group of people is notnecessarily true for another group of
people.
Each group has its own folksoulpersisting from generation togeneration.
The law is not universal in scope. Itis only national in character that is tosay conservatively oriented to thetime, place and individuality of aparticular group of people.
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Nature of the Law
On the Vocation of Our Times for Legislation andJurisprudence , Savigny vigorously opposed the plan ofProfessor Thibaut to codify the civil laws.
Professor Thibaut cited the successful application of theRoman Law principles in the French Code, Napoleon.
Savigny argued vigorously that Thibautsproposal was anaffront to the German volksgeist.
The law is the product of the huge mass of beliefs, opinion,prejudices and even superstitions of a people produced byinstitutions of human nature reacting one upon another.(Henry Sumner Maine)
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The OBLUTIACS of a People
Language
Opinions, Beliefs, Longings, Usages, Traditions,Idiosyncrasies, Arts, Customs and Superstitions
Reveals the national identity, character and genius of apeople.
Form the common consciousness and intelligence of thepeople
It can be assumed that each group of people has its owncommon consciousness about its national identity andcharacter.
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The Folksoul
Folksoul (Diwayan)
National Identity
Character
Genius of People
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FOLKLORE
Paniniwala
Beliefs and traditions of a group of people
May survive in the form of epic tales (kwentong
bayan)
Also in tales of bravery
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FOLKLORE
Epic Tales:
Ibalon
Biag ni Lam-Ang
Muslims of Lake Lanao
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FOLKSAYING
Kasabihan
From opinions of the people
OPINIONS = stronger than impressions
May be in MAXIMS (sawikain) or SENTIMENTS (sabi)
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FOLKSAYING
MAXIM(sawikain) short or terse statement
containing a general truth or a timeless rule of conduct
SENTIMENT(sabi) settled sense, view or
disposition colored by feeling
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FOLKSAYING
EXAMPLE:
Mabuti na ang mamatay na malinis ang budhi kaysa
mabuhay na parang pusali. Ang pag-aasawa ay di biro, hindi ito kaning mainit na
iluluwa kapag napaso.
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FOLKSAYING
JURAL IN NATURE
Ang mag-asawa sa ari-arian ay iisa.
Could be found in the Family Code
Huwag kang pumasok sa bakiuran nino man ng
huwag kang masakupan
Positive law on ownership
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FOLKWAY
Kaugalian
Common consciousness and national character of the
people
Composed of customs and usage of the people
Customs and usages are widespread ways and
practices
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FOLKWAY
To aid life in the environment which the people have
found themselves.
Enforced by social sanctions which makes it differentfrom habits.
But habits can evolve to customs when they become
rational and widespread.
Has passed the tests of time and crises.
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FOLKWAY
Example:
Ligaw-Tingin (courtship-by-looking)
Pagmamagulangjural in nature; found in the familycode.
Maybahaymay ari ng bahay; management of the
household by the wife.
Bigaypayoadvice from the elders; also in the Familycode.
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Law Not Deliberately Made
The law is not deliberately made by the effort of human will
but is discovered in the common consciousness of the
people.
The growth of legal system is closely related to the growth
and development of people, the expansion of commerce and
trade, as well as the interdependence existing among
different groups of people.
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Law is the product of the national genius or common
consciousness, developed by the steady growth and
development of the people themselves.
Jurisprudents and Jurists
(legal rules, legal principles, legal concepts, and legal
standards)
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Similarity of Different Legal Orders
Historical Reason
Factors in the process in the development of people:
- Political,- Commercial,
- Religion,
- and other types of contacts with people
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Jurisprudential Reason
The precepts of justice and fairness are said to be permanent
and present in all men everywhere since they are impressed
in the human heart and mind.
eg.No one can enrich himself at the expense and misery of
another.
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VALUE OF HISTORICALPERSPECTIVE
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Studying the legal history
through their Oblutiacs
Historical view of nature of the law highlights the rules
and regulations governing human conduct can survive
the tensions of social and political existence. Karl Fredrich von Savigny: this approach avoids
uncertainty and accident in the development of
application of law.
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Demonstration in the
Philippines
Article 10 of Civil Code
sense or trait of the Filipinos in the following sawikain: Ilubog at dagnan man ang katwiran/ ay pilit itong lulutang
Iti linteg isut taklin daguitti nalap-it
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D i i h
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Demonstration in the
Philippines Art. 19- 36 of Civil Code
sense of trait f the Filipinos in the following sawikain:
mahalaga and puring patay/ sa masamang puring buhay
masira man sa pamimilak/ huwag lamang sa
pangungusap.
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D t ti i th
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Demonstration in the
Philippines Art. 198-211 of Civil Code
Art. 216-222 of Civil Code(modified by art. 149 and150 of FC)
Art. 223-251 of Civil Code(covered by Art. 152-162 of
FC)
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Conclusion
sawikain of the people may be utilized as further
guides to adjudicative determination
Courts can be guided by the sawikain whennecessary.
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