Legal History Ultimate Reviewer

7/31/2019 Legal History Ultimate Reviewer

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I-E | LEGHIS | DEAN PACIFICO A. AGABIN

1ST MEETING

Part 1: INTRODUCTION

Justice Cardozo, Methods of the Judicial Process; Lecture II: The Methods of History, Tradition andSociology

1. Logic logical premise is correct in form and substance. Components, and the surest, best formulato answer and reason in law (the Syllogistic law):

a. Major premise lawb. Minor premise - factsc. Conclusion

- advantages:o orderly

o symmetrical

o fulfills the human sentiment for consistency

2. History the progression of events from the part which speaks of the origin of laws. Not onlyilluminate issues of the past, but also of the future. You will know the intent of its creation whichillustrates the use of history in analyzing law.Custom dominant practices of certain group of people in a society which plays a vital role in thedevelopment of law. The custom which becomes a way of living, defines the parameters, reflects

the needs of the people, which in turn is embodied in the laws they seek to implement.3. Sociology

The final cause of law is the welfare of societySocial welfare in adjudication taking the interest of the larger community. The judge will have to

take into account the impact of his decision to the greater society, and not merely to the two parties. That isthe importance of the sociological method.

2 legal systems in the West our system of law is Hybrid, mestizo like the rest of usCommon Law (America, England) Civil Law (Spain, Rome)

1. Inductive reasoning from differentparticulars and arriving at a generalization.

2. Concept of precedent

3. Public law: Constitutional law,administrative law, election law, modern

commercial and financial laws4. Originated from the customs of the people.Only after custom law became obligatoryand mandatory that it became law

1. Deductive start from the general and thenapply the general to a particular example.

2. Same

3. Law on Persons and family, property,succession, commerce, criminal law,

negligence4. Law during the Roman empire was dictatedby the emperor. Major premise (law) wasactually imposed by the emperor on hiscolonial subjects

Part 2: PRE-SPANISH CUSTOM LAW

Chapter One:

Custom law body of customs and usages dealing with liability in pre-conquest society and enforced, orpermitted to be enforced by political authority in the communities concerned.

Chapter Two:

Liability- the principle of collective liability; an individuals social identity lay in his belonging to a group- custom- arising from fault or wrong according to a custom of a community

Forms of liabilitya. An offence ought to be repaid with a similar offenceb. An offense causing a loss to another be repaid by an equal compensation

Concept of corporation arose from idea of collective responsibility. (Common law)


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Barangay is now considered a political unit. When you take up local govt, barangay is basic unit.

3RD MEETING

How come the ancient Romans resort to founding legal fiction?- Flow is stable- This will show the people that the society is also stable and has complete power over their

jurisdiction- Society that is preoccupied with stability is bent on preservation of status quo.- And if society is preoccupied with preservation of status quo then it becomes preserving the old

order and it does not progress so much.- The romans invented legal fiction to make the society stable? Yes. Is it the thesis of Maine? How

would legal fiction preserve the stability of Roman society?o There will be no progress in that kind of society is laws always changes

- Did they not have a Senate for the purpose of amending and revising the law?o Yes they did have. But why would you say that they need not change the law?

- Why did the Romans find it necessary to the law to change the circumstances?- Give us an example of legal fiction?

o Why did the Romans think that legal fiction would give an intonation of stability in the law?

Legal fiction is a tool used by those in power to transform and to change the laws and make it appear thatthe laws have not been changed or transform. This has been done to improve the system and not offend

those who resist change in society.

Why would they want to make it appear that the law is stable?- Men at that time had never shown and desire to change their system.

Why do you think that people in a social order want to preserve the stability of the law and yet they feel thatthe law has to adapt to certain changes in society?

- Change is beneficial, however, people were used in the

How come in any society, people are bent on preserving the statues quo. Law stability in any givensociety.

-People want to maintain the status quo because

- you have to take note what the ruling class is al about.

Any given society will abhor any social revolution. It deals social distruption and so on. They would rather doit by creating fictions and legislation, unless ofcourse that your legislators are bent on making social reform.

Going back to the law, the function is to preserve the stability of any social order. That was the function oflaw in ancient Rome as it is now. That is why in case of a real revolution, there will be radical changes in thelaw. if there is no revolution, the resort, that is equity, legal fiction and legislation.

What did the demise of legal fiction do to Roman Law?For example, concept of Roman citizenship:At first, it was limited to those who were original inhabitants of Rome. Started as a monarchy, became arepublic and became and empire. With respect to citizenship was limited to Roman birth, but later own asthe city of Rome expands into a republic, it included immigrants. Most notable in the early Roman republicare the Greeks. Since the Greeks were more civilized than the Romans, which at that time Hellenic

civilization was already flowered, Greeks were considered Roman citizens. And later when republicexpanded to an Empire, the concept grew further especially those who rendered public service to therepublic, most specially, the soldiers and the generals. You must remember that the Roman republic waspropped up by its military. Strength of a colonizing power is limited to its military arm. And so, we have thefamous Roman legions, so that from the city of Rome, the city expanded all over Italy. All of the conquestswere undertaken by the Roman Legions. Those who rendered public services were considered Romancitizens. You can see how legal fiction of citizenship had so modified the law on citizenship that it enabledthe Roman republic to include even non-Romans as citizens and so having maintained its status asdominant power. This exemplifies how legal fiction can effect significant changes in the development of thelaw so that the law can also adapt itself from changing circumstances. The same is true for us in thepresent. You can see how for instance, you cans spot Philippine citizenship not only to those who are


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natural born, but also those who undergo naturalization. The law is stable is always behind social andeconomic development. It tries to catch up to these developments even though it is always behind. If it failsto do so, it becomes a drag on social progress a negative instead of a positive for social change. Societieswhich are underdeveloped have their laws which are tied up to old notion or to fossilized ideas and even toreligious beliefs. And if law is tied up with old ideas, it becomes a negative factor which deters the progressto any given society. So we could note that in this 3 rd chapter of Maine, he formulates the thesis that if thelaw fixes the rights and obligations of individuals according to their status, somehow that will retire the social

and economic progress and social order. That is why in this study of the caste system in Hindu society, inwhich at the top you have the Brahmins and the religious orders etc, their rights and obligations enumeratedby the law; that society remains stagnant and will not progress. In progressive societies, the law moves fromstatus to contracts. The individuals are free to set into writing their contracts and obligation, it leads toindividual and collective progress. The progressive society, has the law move from status to contract. That isthe principal thesis of the book, but you have to have some basic knowledge of classical history to puttogether these statements.

EquityThe concept of equity revolves around the idea of fairness, or sanctity or morality. As distinguished from thelaw where, in terms of positive law, you would be referring to laws found in books. In what you call laws inblack and white. You must remember that as early as 450 BC, the Romans had already reduced the law tothe 12 Tables (Decemvir). Even by 450 BC, codification was already invented by the Romans. Equity issomething else, although it may not be found in positive law, it is rooted in the concept of justice. TheRoman concept of justice is what is now found in our civil code which is to give every man his due, and to

act in honesty and good faith. These are the 4 concepts of the civil law system and of course, equity is alsorooted in these 4 concepts. Here we have the second mode of changing the law, but the next question isHow would equity manage to change the law? How did it manage to expand in the concept of the law? Howdo you think did the law adapt to certain changes?

Magistrates and praetors settled disputes among the citizens. They utilized the concept of equity in settlinglitigants. The magistrates and praetors are the equivalents of our judiciary today; they interpreted the legallaw and decide in a dispute-to-dispute basis. There are times that they collect from the great jurists likeUlpian etc. There are also lawyers during that time; the most famous of them was Cicero, who used tocriticize the arbitrary and arrogant style of the Caesars in ruling. He was one time exiled due to his orationsagainst the Roman emperor. You can see here that laws manage to move on to adapt the socialcircumstances and we have seen that equity has rendered the praetors and magistrates also managed tocome out with the concept of separate jurisdiction. Later on, with the rise of the common law in England.

Legislation

How do you differentiate legislation from legal fiction?Roman society was in theory governed by the senate, which were the elders elected by the ruling families ofRome. The principal function of the senate is to legislate. They also conduct legislative investigations.Starting the fact that the republic evolved into an empire, but in theory it was still engaged in legislating. Inany society, the ruling class always concerned with the preservation of the status quo, the main anchorbeing the law. In any society, you will find out that the bulwark of conservatism is always the law.

Anyway, the senate governed the Roman Empire for so long. It was the peoples senate of Rome (SPQR).In theory, the senate was the ruling body, but with the advent of the Empire, the decrees of the emperorwere also considered law. Anyway, how does legislation differ from equity?

Legislation may be based in equity. How did they find out giving everyone its due, not to injure others, livingin honesty and good faith etc?

According to Maine, how did the concept of equity originate?How did they find out these principles of good faith, honesty and giving everyone its due?

- State should recognize that the role of the individuals in the government (individualism as aphilosophy in the Roman government.)

- The government recognizes that all of its citizens are equal.

Principle of equity arose when Republic began to expand its borders and the citizenry was composed of notonly the original Roman citizens but also aliens who integrated into Rome who were therefore consideredcitizens. Author mentions the fact that concept of equity sprang from Jus Gentium the common customsand traditions of different peoples and races that were accommodated in Rome to become citizens. That


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time in Roman history was already engaged with commercial intercourse with various cities. The differentpeoples of Italy began to infiltrate the borders of the Roman Empire. The common law, and also begins withthe development of international law. When a nation engages in commerce with other countries, somehow,the different customs and traditions of aliens influences that of that country. That is what happened in Rome.Common international law, especially contracts and sales, began to grow and taking into account thecustoms and traditions, the concept of equity was also formed with the evolution. While equity developedvery slowly, legislation was quite open and was transparent because the laws passed by the senate will be

codified by the praetors and the magistrates together with the commentaries. This will be the code of theRoman law in addition to the laws found in the books. So we have therefore the Senate acting as alegislating body, although at that time it also acted as a judge in resolution of important public issues;otherwise private issues will be resolved by praetors and magistrates. There were also upheavals, such asrevolt of plebeians, and soldiers; which gave rise to certain changes in Roman law. There is also the tribuneand the consul which acted to protect the rights of the people in addition, the consul, the tribune, alsopromulgated rules so that opinion of the consul for example will be like the opinion of the presentOmbudsman.

Revolution

Many occurred during the course of the Roman Empire. Not only revolutions, but also assassinations andoutright murder and parricide. The concept of legal fiction not only directly expansion of Roman law; bymeans of legal fiction, the Roman emperors adopted a fiction of adoption which enabled the far sightedRoman emperors to adopt children or individuals whom they thought would make good rulers. If you read

the chronicles of Roman emperors, most of them would be adopted children; like Julius Caesar, MarcusAurelius, Justinian. This fiction of adoption directly contributed to the progressiveness of Roman law. Ofcourse, legislation would later on be codification.

How do we distinguish legislation from codification?Codification is compiling existing laws in a given subject. Example, civil code. Legislation is a piece-by-pieceenactment of a law. The supposed advantage of codification convenience for people interested in lawsespecially law practitioners like magistrates etc.

4TH MEETING

Roman Concept of ConstitutionalismAnd its influence on other laws

- instead of the concept of constitutionalism, the Romans have the principle of state absolutism concept of the state itself as the sole authority

- what do you understand by absolutism in this context? would mean that every pronouncement ofauthority was held to be

The paradox here lies in the fact that in its early history, constitutionalism was identified with the Romanrepublic. You will recall that the republic lasted from 500 BC to 140 BC in its early stage. And then the laterepublic was from 140 BC 31 AD.

And then came the Empire (Principals) 31 AD 476 AD (West) and then from 324AD-1453AD (East). TheRoman contribution was made during the early days of the republic.

From 31 AD (When Augustus Caesar triumphed over the triumvirate), in assuming one man rule, Augustusbecame the first emperor. So he laid the foundations of absolutism which strengthened the hand of themonarchy. The Roman empire had its height here. When a colonizing power like Rome had to coercepeople from 100 nations, emperor must have absolute authority.

He required foreign inhabitants to register themselves for the census. You can see how far reaching thepowers of the emperor at that time. Modern world quoted absolutism from Roman Empire. Aside from theprinciples of absolutism, the Modern World, even the English Common Law was influenced by the Romanrepublic while it was still the republic.

What does the author refer to when he says constitution?


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- source of which all other laws were under a higher law, but not a single legal document. He was nottalking about a constitution as a fundamental law. he refers to all of the laws that were enacted bythe Romans statutes and even jurisprudence and commentaries of the authorities in Roman law.

First principle of constitutionalism is power of the people. Some of us may get the impression that the powerof the people was derived from modern thinkers like Rosseau. They get it as far back as the Greekphilosophers. What seems to be the difference in approach between the Greek and Romans?

- The Romans have representative democracy; Greeks did not give much citation with the delegationof a power to legislate. When you speak of Greek philosophers, what comes to mind? City of Romewas just a Greek polis.

The thinking of the borrowings of the theories comes from the Greek Philosophers. What distinguishes theseancient Greek philosophers from the ancient Romans?

What was Ciceros contribution to the law?- you must remember that Cicero was not only a philosopher, he was also a lawyer and an adherent

of Greek stoicism, a political orator and earned the enmity of Julius Caesar.- Cicero was an advocate of a lot of Greek concepts

Generally the Greek philosophers expounded on the theory of justice. Socrates was an advocate of whatthey call the notion of absolute justice. He thought of men as rational beings and in his mind, the notion offairness and justice is universal in every human being. Resisting state authority, even if the individual feels

that it contradicts justice, and so that was why he was poisoned. He insisted to his students that they havethe right to resist if it is contrary to the idea of justice. Because of his belief the opinion was absolute.

Plato took it up from there and since Plato did not want to poison himself he became more pragmatic thanSocrates. He expounded on a more practical concept of justice. And later, Aristotle refined all of theseconcepts of justice. Since the Roman jurists focus on common law. It was Cicero who advocated that thispower was behind law and that it came from the people.

If it is just usage or tradition or custom, it is not law. There is no assumption of power behind it. So this isone contribution of Cicero to the development of Roman law. In later life, with the emergence of JuliusCaesar as a conquering hero, Cicero noticed that Julius had tendencies to become a dictator that is why thesenators also discerned the authoritarian tendencies. That is why Brutus and Cassius stabbed Julius Caesarstabbed him in March 15, 44BC. He was A colossus walking among us mortals.

There were rumors among the enemies of Caesar, since he was such a womanizer, Brutus was thought as

an illegitimate son of Caesar.

Cicero died in 43 BC. We have the contribution on the nature of law, power, and assumption of law.

Public law deals with individual and the state. Private law deals with relationship between individuals.Distinction is the space given to the individual.How does the author define individualism?

Distinction is based on philosophy of roman individualism which is defined by the author as the freedom ofthe individual from state intervention. Roman Republic: individual is protected against state intervention aslong as his rights are not transferred upon individuals thats why the Romans effected a number of contracts determine the rights and obligations of the contract instead of the republic dictating what the terms of thecontract are. In progressive societies movement is from status to contract instead of the state dictating onthe rights and obligations of an individual according to socioeconomic status, the state allows the individualto determine its relations with another individual through a contract. It is discernible from public and privateso that the individual in the roman republic may depend upon the state for the protection of his rights againstother individuals. Insofar as there is equality among individuals they have to determine their rights andobligations by means of a contract. This is the second state of constitutionalism that the author was talkingabout.

Concept of continuity refers to the stability of the law. in some word given by the author here,continuity in tradition. And again, looking at it from the historical point of view, actually in theory, the Romanslook at this period from 500-1453, as a continuation of the empire. But the impression that most people getis that the Roman Empire was from 500-1453 because the Romans developed the concept of continuity, notonly of the empire but the law (civil law system.) Starting from the time of Julius Caesar in 35 BC, the


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Roman emperor became to be called Caesar. And up to the 1453, the emperor will be called Caesar invarious spellings. In Russian Empire, it is called Czar, a variation of Caesar. You can see how the conceptof continuity runs in the Roman Empire. Now we see a constitution something that is stable and longerlasting, because of this, most of us are averse to charter change.

Author calls it balancing of authority against liberty. The senate was the supreme power. Senate vs.the tribune and the magistrates. The magistrates moderated the laws passed by the Senate. the magistrates

created the concept of equity. According to the author this lead to the law making by the judges or judiciallegislation.

The judicial legislation means that the magistrates and the praetors applied the law enacted by the senate insuch a way that it will render justice to every individual, so that the law will be an instrument of justice inindividual instances, and that is their concept of equity. Ultimately, their judgments led to judicial legislationthat we know in the modern world.

How did the magistrates create the concept of equity?- in the specific case where the mother found it necessary to abort in order to save her life, the judge

will not uphold the abortion law application of the law in a specific case where enmity dictates thatperson in similar circumstances.

How was it possible that these aspects of constitutionalism were passed on to this generation?- After the fall of the Roman Empire in 476 AD, there came the historians call the dark ages. The

republic has fallen as early as 31 AD. Its a wonder how these aspects of Roman law were passedon to modern times.

When the western part of RE fell to the Barbarians,

Medieval Period (Dark Ages after fall of Rome)

1. Early 5th 10th century

2. Late 10th-15th century

Catholic Church was already well established during that time. It dictated by Constantine the great in 324AD. Everyone under the empire was forced to become Christians. When Rome was overran by barbarians,they were also eventually converted. They (barbarians) conquered a superior civilization. They recognizedthe authority of the pope. The power vacuum in the west is filled up by the pope as a substitute to the powervacated by the emperor. In the east, in Constantinople, RE was still flower.

In 323 AD, Constantine the Great transferred the capital from Rome to Constantinople. Even if he hadtransferred the seat of power, he assigned one of his sons to remain in Rome. There became 2 capitals ofthe Roman Empire (323-476). West was sacked by the barbarians in 476, and after that Constantinoplebecame the only capital.

In the West, barbarians were converted to Christianity, propped up by the barbarian emperors. That explainswhy the pope remained in power, because the barbarian kings were converted. The conversion was nottotal, but was done in an number of kings.

What happened when the barbarian kings were ruling the empire? The west entered into the age offeudalism.

A general of the Roman legion, who managed to conquer a territory, was awarded the title of latifundia abountiful estate, like the Philippine hacienda. The latifundia was greater since it may involve an entire

country. Ex. Whole of Spain was to be awarded to Julius Caesar. When the West was overrun, theselatifundias came to be defended by the generals. It was the time when knighthood began to flower. Themaster of a feudal estate was a king in his own right, and had soldiers led by knights. The residents of theselatifundias were already Catholics, so they recognized the pope but the lord in the estate is the lord or thebaron.

All of these aspects of constitutionalism were completely eroded because there was no central power toguarantee. Central power was already based at Constantinople, and there was no greater authority in thewest.


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How did these aspects of Roman constitutionalism survive in that ages and got carried over to moderntimes?From the 5th to 10th was really a dark age for W. Europe because the conquering barbarians burned thebooks, the churches and other structures for remnants of Romans, until they were tamed by the pope andthey were converted to Christianity.

During the medieval ages, the Catholic church had built monasteries busied themselves copying and

translating the various laws enacted by the Romans, as well as the commentaries of the jurists. That is oneimportant role played by the Catholic Church in the preservation of Greek and Roman civilization. Withrespect to Roman law, we can thank the Church for the glossators (monks working in monasteries who havepreserved the books of roman law as well at the commentaries and translated them into various languages).That explains why all of these were preserved; it is to mention the fact that the eastern empire was still alive.In the case of Justinian, he promulgated the institutes of Justinian in 539 AD. He was not only a far sightedlaw giver, but also a good general. He was able to reconquer the west for 12 years and introduced theinstitutes of Justinian. He mounted a campaign against the Barbarian Kings, and was able to recaptureRome and assigned his son to be emperor in the west. During that 12 year period, they were able to spreadthe text of Roman law. that explains the durability of the Roman laws even in the west. By the time thebarbarian kings were converted to Christianity, they were tolerant enough to allow the Christians to retaintheir own laws which consisted of nothing but Roman law. In Spain even if the Visigoths were able toconquer, the roman civil law system thrived in the west because of the efforts and victory of Justinian in thewest even for just 12 years. When Spain was conquered by the Moors, Spain was the colony for 700 years,from 711-1400s. Even the Moors were liberal enough to keep their faith as well as the Roman law system.

In the dark ages, the glossators, priests and barbarians all contributed to the preservation of the Roman lawsystem. Of course, conquerors also inherited the absolutism of the empire. Its just that it was unfortunatethat they were converted to Catholicism.

Factors that influenced the development of the Roman law:1. Aequitas2. Humanitas humanity (kindness, generosity)

From 700 to 500 BC, Rome was just a Greek Polis. Aside from that, what other fucktorS influenced thedevelopment of Roman law?

- Patria Potestas father was so powerful, he literally has his children under his disposal. It wasabandoned after individualism flowered.

Roman law, in the beginning, was draconian, and harsh. They were in the beginning, tillers of the soil.Education in humanities means getting educated in subjects like lit, music, fine arts, and so on. That is why

all of you are required liberal education, because that will make you more humane before you come to thecollege of law. Law is a very narrow and strict discipline. It is like putting on blinders, but you have to have abroad understanding of humanity before you become a lawyer.

Greeks and Romans emphasized on an education in humanities so they will be familiar with Hellenic culture.

5TH MEETING

Spain1. Roman colony until 500AD or earlier. Western Romans were completely overrun by barbarians at

476AD.2. Visigoths overran Spain from about 500 AD. The Visigoths constituted a large part of population

of Spain introduced their own customs and traditions.

Carried with them the Germanic laws or the Laws of the Barbarians

Implement the laws that govern their own place at that time. How did that affect the legal system? predominantly Roman. When Visogoths came,

they realized that even if they were superior in arms, they conquered a more advancedcivilization. They introduced:

a. Legis barbaroro customs of the Visigoths. These barbarians respected theexisting legal system, and so they allowed the Spanish to retain their own legalsystem. But they introduced innovations.

b. Fuero Jusgo consisted of essentially Roman legal system, the customary lawof the Visigoths and the Canon law the three existing legal systems underthe Visigoths. One notable introduction made by the Visigoths was to legalizeintermarriage between Visigoths and Spanish. As observed by Maine, the


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intermarriage between races stimulates the vigor of a race, and theyintroduced the conjugal property system between husband and wife. The restof fuero Jusgo however, were made up by bigger concepts borrowed from theRoman system. As this point, they (Visigoths) were tolerant enough andintroduced the system of legal pluralism merely a system where ethnic orcultural groups are allowed to retain their legal system which they havedeveloped. Its like what we have now Xtians were governed by law, Muslims

are governed by Islamic Law. that is what happened in Spain the Visigothswere governed by customary laws, Roman citizens were governed by theRoman civilian system, and later on, the Muslims were governed by Muslimlaw. What were the salient provisions? law was well advanced for its time.Defined the implementing rules in succession etc.

c. Law on Persons must have lived at least 10 days for to be recognized.Citizen cannot marry a slave, deacon, priest, persons who has been a victim ofsexual crime.

d. Laws on Property they introduced the idea of succession, while before thatthey introduced the conjugal ownership.

3. Influence of Christianity on the provisions of Fuero Jusgo? Visigoths were converted. Marriagelaw no live-in arrangement, fornication was a crime (sexual relationship bet. Unmarried couples),marriage was insisted upon the Church not only to preserve the morals of the people, but toemphasize the role of the Church in regulating the lives of couples and also the entire population.Priest is vested the power to unite couples, legitimization of children (children born out of wedlock

considered as illegitimate, and are condemned by the church), baptism, laws against crime vs.chastity. Illustrate the influence of Christian system to civil law. With respect to succession, dontyou think that the Christian religion influenced the devt of civil law?

4. Civil Law5. Common Law

Third historical stage of Spanish history- Greater part of Spain was conquered by the Moors in 711 AD. 1492. Held as a colony, they

called it Andalusia.- Retarded the development of the Spanish law, although it did not wipe out the gains of the previous

era. Aside from retarding the development of the civil law, common law system common to alltribes living in Spain at that time. You must dissafuse your mind that when Spain was conquered bythe Moors, they lagged behind in cultural development Spain prospered in fields of arts andscience. In fact, in 1000 AD, the center of local commerce in the west is Cordova. In the West,there were 3 centers Cordova, Constantinople and Baghdad. Greater part of Spain was Islamic, it

was only in 1492.- Most advanced civilization is Islamic Civilization. But what happened to civil law system? there

had been a radical change in the system since it was before predominantly Christian, and when theMuslim arrived, they integrated Islamic ideas. Dont you think it was logical to impose Islamicreligion? they did not, Christianity was the predominant belief at that time and they would havedifficulty integrating their beliefs. While they tolerated the Christian religion in Spain, theyencouraged the growth of Islam by imposing taxes on properties of Catholic Church and byselecting only Muslims as governors and mayors, confiscating the estates of the Church anddistributing it to the slaves. And of course, since the Muslims colonized Spain for 700 years, anumber of Spaniards were converted. With respect to law, they adopted legal pluralism which wasinvented by the Goths. Spanish Christians were allowed to keep the civilian system and Muslimspracticed their Sharia, and this system of legal pluralism is important in order to prevent anywholesale violence and intimidation on the part of colonizing tribe or nation. So in respect to civillaw system, the Moors allowed them to keep legal system. At this time in spain, they producedanother great code the Siete Partidas.

o Siete Partidas essentially civil law. Compilation of law, treaties and jurisprudence. Itrefers to natural law (came about based on reason) and also deals with court procedures.

o Compare Fuero with Siete? not much differences concerning both, but in Siete, adoption

was recognized while in the former it was not considered. Because the latter was madeunder a civilization which had been more advanced. During the time of the Visigoths,OBLICON were mostly consensual, while in the Moors, it was more formalized. Simplerload, common now to the other. Under the latter there were:

Real Contracts deposits, pledge Consensual Contracts sale, lease property

o Are these contracts still in our law? yes


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o Moors have not changed much it still did not provide more rights to the wife. Had thewife been given more rights to the wife? during Visigoths, no right for wife, while underthe Moors, wife was given at least a change to inherit property.

o Under persons and marriage age of puberty was defined as age of marriage, same as

time of Visigoths. Age of majority was 15, now it was puberty.o Men are prohibited to marry older women older women might practice more power?

Women grow old faster than men?

o Ignorance of law is a defense for servant, soldier or woman.o Medieval period

Early 500-800 AD

Late 800-1300 ADo Western Roman Empire, after invaded, disintegrated into small pieces of land and this

gave rise to the feudal system. The generals of the Roman legion became lords of themanor they have small fiefdoms where they exercised absolute power. They were theones who laid down the law. No Roman legion from central authority called the Pope inRome. The power vacuum left by the moving of the capital from Rome to Constantinoplewas only partially filled by the Pope. Although he was able to influence barbarians, it onlybecame effective when there became a union bet. Church and State. But that union, statewas the dominant power. Emperors in eastern part insisted that clergy should be undertheir power. It was at that time that the religious orders managed to exercise power underthe control of the king, or the emperor. In the east, there was fusion bet. Church and

State. In west, feudalism portions of former Roman empire in the west, the lord was thelaw on himself. To illustrate the power, he exercised the droit de seignor the right of thelord of the manor to have the first night with the bride. The civil law system was erodedduring the early Medieval period, and you can understand that from the role of theCatholic monasteries in preserving the books, laws, and commentaries under the civil lawsystem and translating them into Latin. IT was only in the east, in 539 AD that the code ofJustinian was preserved and exercised in the part of their empire. Even the Church wasdivided into two Catholic and Orthodox. In West, there were Small kingdoms, around800 AD however, there arose in Germany and France the Holy Roman Empire, whichdefended the ramparts of Christianity against Muslims. Founded by Charlemagne, he wasable to resist the advancement of Muslim invaders in France. It happened in 732 AD. Theempire was neither holy, nor Roman nor an empire. Nonetheless, the king and the otherCaesars in the area were able to unite to resist the onslaught of Islam. Otherwise, wholeof Europe would have been Islamic. It was only in Eastern Europe that the Muslims wereable to penetrate coming from the Middle East.

Fourth Part of Spanish history- Ferdinand and Isabella marries and unite their kingdoms of Leon and Castille, respectively, and

launched the Reconquista. The combined forces were able to drive the Moors back to Africa. Thislong colonization of Spain by the Moors accounts for the enduring antagonism. When Spaniardscolonized the Philippines 35 years later, they were surprised to find Moors in the South. Theywere actually native Malays converted by Abubakar. Spaniards looked at Moors in indignation, andso we have the Moro Moro supposed to degrade the Muslims in the South.

- What happened to Spanish law after the Reconquista?o Revised the Fuero Juzgo and the 7 Partidas

Land Rights. Land Laws and Land Usurpation in Spanish EraBy Owen Lynch

Here you can see the contrast of perspective between the Philippine concept of ownership and that of theSpaniards. The natives conceived of holding the land individually. Land ownership is conceptualized ascommunal. Natives could not think of owning land themselves, they thought that it was the individual who isowned by the land. It was outrageous to them that a piece of paper holds the ownership to the land. And thisis completely opposite to those in the West. Since the Spaniards were supposedly missionaries, they weremore tolerant. Spanish officials were supposed to protect the right of the indigenous people Spanishofficials were not supposed to live near the land without their intention of owning it. Under what title did theSpaniards claim the Philippines? We go back to Roman law, the modes of acquiring property. They


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claimed ownership by virtue of discovery. The land owned by the natives it was only by a small part ofPhilippine territory. Spaniards, after coming to the Philippines, felt the need to formalize land ownership.

Outstanding Spanish soldiers were given parcels of land as a reward.How did the Maura law seek to protect Filipino-owned lands? for a law to really achieve its purpose, first itmust be understood by the people who are subject to it. They must know how to go about submitting a proofof ownership. People at that time dint know Spanish. They didnt have the capacity to formally obtain

ownership of their land, they couldnt specifically A law which was intended to benefit the subject peoplemay instead work to their disadvantage. Some countrymen took advantage of their understanding of the lawand registered not only their lands but others as well. This explains why many people are landless. Irony isthat the Maura law was extended to protect ownership for the native people. It ended up being used tooppress.

6TH MEETING

1. Roman Law 496 ADBreviary of Alaric 6th -13th Century ADFuero Juzgo, Fuero Real 711AD Moors

2. Siete Partidas 13th-16th CenturyLeyes de Toro 1492 Spain Reconquered

1521

3. Compilacion 16th-19th CenturyLas Leyes de Indios

4. Marriages Civil Code 20th CenturyCommerce Penal Code Modern PeriodWatersMaura Law

1. Public Law

Constitutional Law

Administrative Law

Criminal Law

Procedure2. Private Law

Civil code

Commercial Code

Transportation

Philippines Under Americans1. 1898-1900 (Military)

General Orders (GO)o No. 58 instituted in civil marriage. Wants to draw the line between Political and

Religious affairs. Actually a political statement to underline the differencebetween Spanish and American concepts of governance

o No. _8 Code of Criminal Procedure.2. 1901-1906

Military government of Arthur McArthur gave way to the civilian government headed byWilliam Howard Taft

Judicial system that was put up was patterned after the US System

In Philippine Supreme Court, 3 Filipinos and 4 Americans

Taft was surprised with the extent of corruption in the judiciary3. 1907-19164. 1916-1935


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Sources of Muslim Law1. Shariah2. Adat Law

7TH MEETING

Difference between Islamic and Philippine law

Two Sources of Islamic Law1. Adat Law2. Personal Law

Order of importanceA. Shariah Law

1. Quran2. Interpretations of the Prophet (Muhammad)3. Consensus of the ulamas - equivalent to commentaries in civil law. interpretations of legal

scholars under the civilian system.4. Concept of analogy equivalent of stare decisis

B. Adat not considered part of Islamic Law. Only applies here in Southeast Asia. Incorporated Islamic

law

Codification of personal laws Code of Muslim (PD 1083)Code of Procedure

Christians marrying Muslims, what law would apply?- male is a Muslim and female is Christian, then it is the Muslim personal code which will govern their

relationship and ownership- if a Christian male marries female Muslim, our civil code will apply- because of the patriarchal system of law that we have, the important differences are

o Muslim code tolerates polygamy, unlike our civil code, which insists only on monogamy. If

a Muslim male has two or more wives, then under the Quran, he is supposed to treat themequally a very expensive proposition. It is the financial aspect that discouragespolygamy among Muslims, but it is allowed. This practice among Muslims, aside from ofcourse, the psychological factor was born out of historical factors the Muslim warriors

who lost their lives in battle are comforted by the fact that their widows or their femalerelative will be taken care of the other male warriors who survived the battle. And so,under the tenets of the Quran, the basic philosophy is communitarianism. And if you readthe precepts of the Qumran, you will find out the teachings of Mohammed there are muchmore compassionate and more conscious of the social obligations of the Muslim, thatswhy its a much more kindly religion, and of course, the Muslims are not afraid ofsacrificing their life for the sake of their religion or for the sake of their community. It haseffects on the tenets of their religion and their emphasis on human compassion andcollective consciousness. In male Muslims for instance, embarking on a suicide mission,are comforted by the fact that their relatives will be taken cared of by their elders. Not tomention the fact that the people committing suicide missions are assured of place inheaven and 77 virgins waiting for them portrayal of Islamic heaven.

o The Quran have this individual rights, Mohammed writing such long before the MagnaCarta was signed religious freedom, freedom of speech, etc. but more than that, it

emphasizes on economic and social rights such as the right to have food, clothing andshelter, for Muslims to have the basic necessities in life. In that sense, the Quran is muchmore wholistic and much more advanced looking and much more compassionate than theChristian bible. You will for instance note that Mohammed was able to built and army, andwhat he did was release the slaves and free them from their masters. That is unlike theChristian community which tolerated slavery for a while. That is how Islam spread. It is afighting faith and it is much more communitarian in outlook. Even if the Muslim religionbegan much later than Christianity, taking off only around 622 AD when Mohammedembarked on Hegira to Medina. Christianity was already a full-blown religion even in theMiddle East. In fact, there were already churches in Arabia when Mohammed startedteaching. Islam as a religion is much more aggressive and military than Christianity.


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- Fundamental law of Sharia is the Quran which has its drawbacks as a system because it retardsthe growth of the law. It is compared to the time when Roman law was wedded to Christianity, thatthe banners of Christian religion were the bedrock of the Civilian system. The law flourished afterthe divorce with religion. In Islam, since there is no separation, Islamic legal system has sincestagnated compared to the existing systems of civilian and common law. It is confined solely in

those written in the Quran. Theocratic countries like Iran use the Quran as their fundamental law.The split between the Muslims erupt because some people interpret the Quran literally and othersmore loosely. There is the division of the Sunnis and the Shiites.

- Mohammed the prophet professes kinship with the elderly teachings of the Jewish religion; in facthe traces his roots to Moses. It was angel Gabriel who personally dictated the words of the Quranto him.

- Even Mohammed acknowledges Jesus Christ as one of the prophets. That is the common root ofIslamic and Christian belief. Nonetheless, the Muslims and the Christians have not been able to gettogether and is warring since. That is the history of a lot of places in the world. That is why the badblood between Spaniards and Muslims is enduring Spaniards were colonized by Muslims for 700years. When Spain threw off the shackles, Spaniards were also surprised that the Muslims werealso here in the Philippines. Enmity between Muslims and Christians has been inherited by theFilipinos.

- By the time Islam has been introduced in the Philippines, it was already in decline. The Islamicreligion spread like wild fire in Middle East and even Europe, after a century, around 711 AD, the

Muslims were able to conquer the southern part of Europe. It was only in 1492 AD that Spain wasable to reconquer the whole of Spain from the Moors. The other groups of Muslims in the OttomanEmpire were able to jump from the other side of the Middle East, were able to conquer the easternpart of the Roman Empire. They changed the name of Constantinople to Istanbul. Turkey used tobe the part of Greece.

- In 1000 AD, which was the height of Islamic civilization, the center of wealth, trade and commercewas the Spanish city of Cordova. Cordova is the equivalent of what we call New York in the year2000. It was the wealthiest city together with the city of Baghdad, and of course there wasConstantinople. These three were the three principal cities in the year 1000. At that time,Constantinople was lorded over by the Greeks. Islamic Civilization has flowered in Spain -mathematics, sciences and arts.

- We can see therefore how these conflicts in civilization affected the development of the law. Youhave to recognize Islamic law as one of the worlds great legal system, except that in the advent ofindustrialization, mercantilism and imperialism, that explains the repercussions.

Roman law and other systems:1. Leges Barbarorum

- Basic difference between civilian and leges Leges Barbarorum were the laws of thebarbarians. The term barbarians were used by Romans to denote people who were assaultingthe Empire from outside. These include the Angles, the Saxons, and the Gauls etc. They arenow the tower of Western Civilization.

- No idea of codification, these were initially based on custom law, like what our forefathers didbefore the coming of the Spaniards. It was only when the barbarians got to contact with theRoman civilization that they were introduced to codification. It was only later that their lawswere codified. Custom law springs from the spirit of the people. It is seldom that it is dictatedby the king. Law is just a natural law drawing from the habits and customs of the people, and itis only later that they learned about codification. It was only later when they conquered themore civilized Romans that they started codifying their laws.

- That is the only notable difference between the Civilian and Common law systems. This legesbarbarorum borrowed the practice of codification from the Romans, and they also borrowedsome aspects of Roman law that they thought will be accepted by their own people.

- How was is imposed on the colonized people? there was a Roman empire in the West, and aRoman Empire in the East. It was the west that was overrun. The Visigoths overran Spain;Germanic tribes overran Germany, Huns Hungary, and Franks Gaul etc. The West wasgoverned by other Leges Barbarorum.

Norman Conquest happened in 1066. This was the conquest of England by William the Conqueror theDuke of Normandy. He crossed the Strait and conquered the greater part of England and imposed hisversion of the Leges Barbarorum when it was already codified. That explains why the English legal termscontain French words. When William conquered England, he imposed laws from the French and the people


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in England had to adapt to French terms. That is why lawyers use repetitive terms such as null and void,one word is French and the other is English. They used both English and French to be understood, and thepractice was carried over to the colonies.

Aside from the system of law, what other system arrived at this period? There was the Roman Empire inEast and West. West was completely overran, while the East was thriving.

2. The Canon Law

When the West was overran by the barbarians in 476 AD, the Pope was in the Vatican. Since there was apower vacuum here, there was a need for some authority in the Western Empire. It was the Pope who wasinstrumental in filling the vacuum because he was able to convert the barbarians. And so, he had influencein the barbarian kings. Eventually his power grew and grew and it became dominant, more powerful than thekings. The influence of the Pope until about 1500s, was political. The Church was dominant over the pettykingdoms, not to mention feudal fiefdoms. The compressed religious sect became the persecutor. The Popealso became the legislator, and he began legislating for the supernatural.

Why was Canon law legislative of the supernatural?

According to Canon law, law is something that is beyond the control of humans. The point I amdriving at here, is that how Canon law was able to develop beside Roman law? Ostracized from the church a punishment in the ecclesiastical legislation of the Pope.

Covered: Religious Matters- Use of Latin in Mass- Prohibition of marriage of priests

And as the pope acquired power, he began legislating for the whole Christian population:- Marriage- Baptism- Divorce- Art. 36 of the Civil Code was derived from Canon law papal legislation- Dividing the world like an apple Pope Alexander VIs papal bull dividing the world between Spain

and Portugal. He being a Spaniard, he divided the world in favor of Spain.o Pope Alexander VI had seven mistresses and had children with them, but he was not

ousted from the papacy.

How did the Roman law system influence the development of the Canon law?Was there an intermingling of concepts between Canon and Civil law systems?

Yes. Christianity was adopted as state religion in 334 AD. And then, there was the following by thePope on several Roman law concepts. For instance, the concept of free will in Canon law which wasborrowed from the Roman law concept. There was also intermingling between these two systems. Theauthor describes one historical development which guaranteed the imposition of proposition of the CorpusJuris Civilis by Justinian.

Where did these copies of the laws come from?It was through the digests of Roman laws. There was also a period in history where emperor Justinianaround 500 AD, he made his legal scholars collect writings in Roman law. He was legislating for the East.The author here mentions development which mentions imposition of Corpus Juris Civilis not only in east butin the west.

Justinian was not only a great legislator but also a great general. He led a crusade to capture the western

part of the empire. He was able to stay in the west for 14 years. It was during this 14 year period, startingfrom 562 AD that he imposed his Corpus Juris Civilis in the west. That is how the CJC was introduced in thewest, that is despite the fact that the west was overran by the Goths. The importation of the civil code fromthe east to west was assured. During that time, the barbarians were already converted to Christianity.

8TH MEETING

Teutonic tribes imposed their own customary laws in their conquered empire?- They also allowed roman law to govern, co-existing with the laws of the Germanic tribes.


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In the Western Roman Empire, which was overrun by Germanic tribes, were the ordinary people you see inWestern Europe. Rome was completely overrun in 476 AD. The west, however, still had the

I. Civil law system 552 AD. Justinian, emperor of the East, was able to conquer West and able toimpose his laws. He left copies of his code in the Western world. The civil law system was thereforepreserved even in the west.

II. Leges Barbarorum customary laws of the Teutonic tribes.

- Difference with civilian law? it was based on custom law (the common practices of thepeople of a certain tribe). Since they were barbarians from the point of view of the Romans,they may not know anything about compilation.

- These are merely compilation of customary laws of the Germans. When they came to contactwith the Romans, they learned the benefits of codification.

- Codes:o Code of Alarico Fuero Jusgo, etc.

- Other differences? Civilian system is a law of places while the leges barbarorum is a law ofpeoples. This can be explained in terms of historical events, because the civilian system wasdevised by the Roman emperors to govern colonies which they conquered. In the case of theleges, there are many tribes which overran Western Europe.

- They realized that the people they conquered were more civilized than they were so they letthe Romans practice their own laws and this explains the sustainability of the civilian law.

What other systems existed during the Early Medieval period?- Probably from 5th to the 10th centuries.

III. The ecclesiastical law the pope became the substitute for the military power of the Emperor. SoCanon Law governed only the supernatural is not accurate. The pope became the governing powerduring this time.

- How do we characterize canon law? because of the marriage between the Church and thestate effected when barbarians overran western Europe, the pope became a power of his ownwhen the emperors power waned in the west. The Pope himself began to legislate, not tomention the fact that there were bishops and friars copying and preserving the civil code ofJustinian.

- Priest or a bishop he mentioned forgers, who falsified ethics so that they can impose theirwill on the Christian population of western Europe. These falsified ethics reached farawayPhilippines as a colony of Spain.

- Canon law does not govern only the supernatural. The pope and the bishops and the friarslegislated, even for the here and now. It is the same way they legislated for the nativepopulation.

IV. Feudal law arose as the law because of the breakup of the Roman empire where the hordes ofbarbarians took over and they split the Western part into so many different parts that the Romancitizens had to seek protection from the remaining generals of the legions who were given latifundias.Because of that need that the feudal system developed. This gave more power to the local warlords.The lord of the manor became the seignor. Because there was no central power, the lord of themanor had to impose his own law living in his domain. And so that led to the development of thefeudal system. This is somewhat different from the three other legal systems.

- How does it differ from the three other systems? It is limited only to a smaller area and withrespect to method, it was the same method as the civilians system it is a law impose fromabove to the subjects.

- There were petty fiefdoms and the lord of the manor, or baron or whatever title, but in somecases these barons still owed allegiance to a king or emperor who happen to be the biggest

power at that time. In the 9th and 10th century, there arose the Holy Roman Empire which wasfounded by Charles Martel in the 8 th century in Germany. It expanded under the emperorCharlemagne or Carlo Magno. It was neither holy nor Roman. It was German and was not anempire, it was only limited to parts of Germany and France. There was a king, and the feudallords at that time owed their allegiance to the king.

Civil law as Rosco Pound sees it is based on transactions, while the feudal law is based on relationships.This means that in the civilian system will look into the contract as implementor of the law and looks at theconsequences of that contract as that which imposes the will of the two parties. Under the feudal law, therelations among parties is based on the status of the parties. It stratified the people inside the manor into:


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1. The lord of the manor2. the nobles3. the freemen4. the slaves

Feudal law had to impose rights and obligations based on the status of each individual. The law imposed bythe lord of the manor used relationships as the foundations like relationships between king and lord,master and servant, parent and child and etcetera. This explains why titles of reference books coming from

Civil law and Common law are different.

Any other legal system which developed?

V. Mercantile law arose from the transactions between merchants. It is only the farmers, peasants,landlords and slaves who were only rooted to the land. The rest are traveling salesmen, they did notbelong to any feudal landholding. They developed their own law, their transactions and they havecertain practices that became customary and it developed into law.

Priests and bishops were not governed by the feudal law. Different system of laws developed as a result ofeconomic, social and historical factors.Development of Law in England

The English is one of the Germanic tribes. The two primary tribes that settled England are the Angles andthe Saxons. They have their own leges barbarorum. And so, in general, the common law is founded on the

leges barbarorum of the Anglo-Saxons, and other tribes. In the 10 th and 11th centuries however, the authormentions a development in English history which affected the common law of England. This development isthe Norman Conquest which was led by William the Conqueror. Normans, wherever they go, affect the legalsystem of places which they conquered. This Norman conquering happened in 1066. William the Conquerorwas the duke of Normandy.

At the t ime that William the Conqueror crossed the English Channel to colonize England, the French werestill considered barbarians, yet they brought with them elements of the Civil law system. We cannot saytherefore that Common law is completely free of civilian elements. The conquest of England introducedcivilian influence to the legal system of the English. And this explains why the common law system is also amixture of civilian influence and the common law. Common law is once more pervasive because thebarbaric tribes in England were not as united and they held to compile customary practices and thats whythey called it Common Law.

How did the English kings get to standardize the common law in the whole country?

Common law common to the whole country.

Individualism? the author states that individualism here pertains to individual rights. Law will tend to protectindividual liberty and privacy also.

How did feudalism influence the development of the Common law? Its focus is that of the relation betweenthe lord and the vassals. It tends to the individual rights pertaining to that of greater society.

Trial by peers. If a tenant is on trial, he has his own peers as members of his own jury.

How did feudal law influence the development of law in America?

Individualism this was a period which established a new nation were riding on what we would sayresentment from their mother country.Right to bear arms in the US? They have a protected right to carry arms. In this arm, they can defendthemselves to protect their individual self.Rights of individuals which cannot be touched. The progressive societies movement of law is from statusto contracts.

Status borrowed from the feudal system. And this moves to contract. Thus, the author Pound agrees withthe generalization of Maine. Observation of Henry Maine applies only in classical period because in Romeyou have to recall that there is a peculiar brand of individualism. Initially, we recall that the rights of people inold Roman law is dependent on the status of the person. It is fixed not by agreement, but by law. but as theroman social order expanded and developed, then the state allowed the individuals to fix their rights andobligations by contract instead of by law. That made Maine arrive to that conclusion that the law moves from


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status to contracts, thinking that individuals, by fixing their own rights and obligations are better fit theirinterests.

Insofar as modern American society is concerned, societies become more complex as they developeconomically and culturally, and the population expands. The movement of the law is simply reversed fromcontract to status. That is the protection of servant from master, labor law, protection of wife from husband.The law steps in to protect the weaker party by social or economic status. If the weaker party is to depend

on a contract and he or she has no negotiating power he or she will be in a losing end.

What are the differences between the civilian and common law systems?- Common law system is based on the relationship among people.- Civil law is based on transactions among people duties and rights of individuals are bound by

contracts. Contracts are means to ensure the rights and means of the parties. When you usethe word transactions, we have to verify Roman law which is based essentially to transactions.

- Common law is largely based on the customs - those are the traditions, rules that were beingpracticed by the people in different areas they were put together in once system.

- Civil law is based on a compilation or codification of standard laws that have been developedovertime.

- This is a very important difference insofar as the philosophy of law is concerned becauseunder the civilian system, the philosophy of the law seems to be a command from a superior toan inferior. If inferior disobeys, he is penalized.

- Under the common law system, the laws are supposed to be a discovered of the customs and

traditions of the people.- Civil law is based on the legislation of the judges while the common law is based on case law

or decisions which have been made to be binding on subsequent cases. In other words,common law is judge-made. The law is discovered by judges while adjudicating cases. Civilianlaw is made by legislators.

- Therefore, we have what the author describes as a continuing dispute with respect tocodification. Codification is really a product of legislators. It is also possible that laws laid downby judges can be codified but it is more of a re-statement.

- In common law, previous decisions are binding to the subsequent cases which have similarsituations to those of the previous ones. In the civil law system, since the law is fixed, it can betranslated in different manners depending on the situation at hand. In common law, theprinciple of stare decisis, in the civilian system it is not particularly stated, but decisions of theCA and trial courts are not considered binding precedents.

- In the common law, the development is faster than that of the civil law system it developslargely inside the courtroom. In the civil law system, it is very difficult to create new laws or

repeal old laws, and in this sense it develops slower than the common law. This is with respectto approach depending on logic. The common law system utilizes inductive logic. Inductivelogic moves from specific instances. The civil law is deductive from general to specific.

Philosophy of Individualism

Insofar as the Puritans are concerned they interpret the tenets of their religion, they put the big importance inthe teachings of their church.They are Purists. This is a branch of the Protestant religion where they believe in the literal meaning of everyword in the bible. When the puritans assumed power in England in the Cromwell rebellion, they enforcedtheir beliefs on the English people. When the monarchy is restored, they are persecuted by the peoplebecause the people were chafed in their strict interpretation of the Bible. They were the ones who chartedthe Mayflower and they were the ones founding the colonies of the US. They started the tradition of Puristsand individualists. They want the laws to be viewed to what it is said in the Bible. There is this phenomenonin American law called strict law.

9TH MEETING

The Philosophy of LawPound

Purposes of law:


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1. Primitive Stage geared towards the natural law, to preserve peace and order. People during thattime; to make sure that individuals in tribe will maintain his physical integrity he will not be harmedor killed, so law developed when the idea of an eye for an eye, had to be substituted. Centralorganization or a power which is capable of maintaining peace and order is either the datu inPhilippine society, head of tribe, king or sultan. One development in the primitive stage of the lawfor the advancement of primitive law is the idea ofcompensation, or what we now know asdamages, to take the place of revenge. Without compensation, and if society had to rely on an eye

for an eye, you will not be able to maintain peace and order.2. Stage of Antiquity stability, or what we know as the preservation of status quo. Status quo does

not refer only to stratification of people (upper, middle, lower class). Preservation of status quomeans preservation of stability of society by protecting the rights of property and honoring ofpromises or contracts of individuals. In this stage of laws development, ancient societies werefixated with preserving the status quo and the classical example is ancient Rome. Law was appliedstrictly, without deviations even in worthy instances. Thats why in Latin, we have maxim of Duralex sed lex the law is hard but that is the law.

3. Liberalization generally focused on the development of equity. Equity usually refers to personalelement of law as distinguished in its general aspect. This gave rise to pitting law with morals aswell as the individualization of law. Justice will be achieved in individual complex cases.

4. Maturity of Law combination of antiquity and liberalization. Maturity would protect individualrights. The primary stage in the maturity of law would be the rights of property, contract etc.maturity is centered on the core philosophy of individualism, and this explains why the law is so

solicitous of individual rights.

5. Socialization of law concept of legal justice of Immanuel Kant. Problem was how to reconcileexternal complaints and the goal of the people to maximize their individual rights. The best examplewould be the concept of social justice. Socialization of the law is a reaction against theindividualism of the previous period. It is the development of the law to moderate individual right sinfavor of the rights of the whole community, or what we now call the general welfare of society.Sociological theory of the law example, the concept of property, which was the object ofprotection at the age of maturity, under which he can use it to whatever means he wants, but now,we have moderated the rights to property, there is a restraint to the person to abuse his propertyeven if nobody is directly injured. We realized that a property owned by a person is held by him intrust. There is in the Constitution the concept ofstewardship of property. We no longer placeemphasis on ownership, so a person is merely a steward of his property which he could pass onnot only to his heirs but also to society as a whole. A piece of huge agrarian land which is too bigcan be subject to agrarian reform. The socialization of the law uses the law for the purpose of

social engineering. The state uses the law to make the life of people in the community much morehumane, and fulfilling so he can become a good member of society. That is the stage which we aresupposed to be in right now. The stage of socialization is the stage where the law takes intoaccount individual inequalities, members of the social order. Another illustrative principle is whatthe author calls the development of liability without fault

Schools of Law:

1. Analytical law is made as a command. Example, civil law and Roman law2. Historical concerned with the growth of law. the laws is not made, but discovered.3. Utilitarian concerned with the happiness of the greatest number (the majority). The criterion of the

greatest good of the greatest number possible.4. Sociological deals with social interest, the welfare of society.

Concept of property has evolved from ownership to stewardship. This is advancement so far as the

philosophy of law is concerned. Individualism of the common law thinks in terms of the abstract individual.Concept of individualism is composed of two core foundations:

1. property rights2. Contract rights limitations in the rights to acquire such contracts were placed to protect the

weaker contracting party. In marriage for example, division of property should be conjugal or atleast the weaker party (wife) should have a share in the division of property. Also, there is theconcept of marital rape so that now, there is a mutual concept, even if the woman is the wife. Inmanagement and labor relations, we have a labor code to protect employees.

According to the author, he has seen the diminution of such rights as a result of the development of the law.


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The author traces the development of the law from individualism to socialization of law. With the advent ofmass democracy and the social and technological developments, the weaker must be protected. This thinksof the individual as concrete, there are certain inequalities. As concrete human beings, the application of thelaw would be more on the equity.

In Philippine society for example, in looking at people in the concrete reality, statisticians recorded that wehave a class:

A 2%B 10%C 20%D and E 68%

There is a difference in looking at the individual in abstract and in concrete terms. Because of this, lawmakers think of individuals in the concrete reality, not in the abstract.

Ideas of the Philippine RevolutionMajul

Idea of government be more individualistic in its thrust or is it more socialized?

Individualism1. Constituent functions like preservation of peace and order, or protection of property, or

defense of the state2. Ministerial functions additional functions in a welfare state, like protection of environment

or provision of education, or housing or land reform.

9TH MEETING

Filipino thinkers thoughts on government(Schools of Thought)

1. Members of the propaganda movement government that promotes welfare of the people

People should have a certain freedom to give them the opportunity to develop or improve\

Welfare of the people in terms of assimilation of the Spanish government? freedom ofpress and of religion, secularization

With respect to independence from Spain? not total independence but more of an

improvement on how the government was being administrated. Improvements proposedi. Certain political reforms to be extendedii. Right to educationiii. Filipinos should be consulted on matters of state

Freedoms which they were asking for like in press and religion? Why were they insistingon those freedoms? Are their newspapers, like La Solidaridad already sign of freedom of

press? such papers did not have wide readership as they were not published in theIslands.

Were there other religions? People were worshipping as Catholics, are they not free to do

so? Were there Muslims in the propaganda movement (None)? Liberty of

conscience. Was the government prosecuting them for their religious movement? Thepropaganda movement was pushing for secularization (Filipinos in Church government?).Although there were Filipinos in the Church, they were only limited to lower posts in theChurch hierarchy.

Separation of Church and State? At that time there was none, and was there anything

wrong with that? heads of the parishes were usually Spanish friars, and such priestshave upper hand in the administration of government.

They wanted Filipino priests to have the same influence as the Spanish friars.

They wanted to achieve and environment that is similar to that in mainland Spain.

They want to have Filipino members in the Spanish parliament

Why do you think did they not advocate independence? there were fears that if grantedindependence, there might be sectors of society which may usurp powers, which theymeant to be the Caciques the economic elite given favors by the Spanish elite. If


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Filipinos were to be granted complete independence, power will be concentrated to theCaciques, and even when there was no complete independence, this class of people arealready very powerful. They recognized that the Filipinos were unprepared to governthemselves. They also recognized that the educated members should be consented, notthe general, uneducated public.

2. Katipuneros

The governance or authority could emanate from the people, or to set up a governmentwith the consent of the people

Mabinis version of governmenti. Governments power should emanate from peopleii. Freedom is obedience of the people to a government of the peopleiii. Enumerated powers for the three branches

iv. Also wanted reforms like propaganda movement, instead of complete

independence? he was also asking for independence

Were they aware of the same problems posed by the Cacique class or the need toeducate the masses so that they will be prepared for democratic participation?

Ideal law? consistent with the principles of a government of the people which respectsthe right of all people and provide protections

Gamble in trusting the inherent wisdom of the people, which he recognized as a bitunprepared. (Mabini)

i. Trust coupled with the assertion that they could educate the masses themselvesii. Among all political thinkers, it was Mabini whose thoughts on law and

government which were more advanced. For example, he advocated a wider rolefor the government to include even the ministerial functions.

iii. He was advocating for a welfare state because as is clear from the discussion,he was thinking in terms of fulfillment of economic wants of the people. Even forpolitical identity, he wanted independence. In that sense, he was more forwardlooking than members of the Propaganda Movement, who simply wantedrepresentation in the Cortez and the moderation of influence of Spanish friars ingovernmental policy

iv. He was visionary, thinking in terms of education of the people. he knew very wellthat masses needed to be educated also. He knew that most people were poorand without property

v. With respect to law, like all the others who were political thinkers of therevolution, as coming from the will of the people. ministerial functions likeeconomic needs and educational needs of the people were already foreseen byMabini, which is now the thrust of our present constitution

vi. Form of government? was more inclined to the presidential form, therevolution was more of a preparation for a better government. With respect toseparation of powers, it was for the long term. He accepted the pragmatic needof expediency in government with a threat of foreign invasion looming.

Malolos Congress

Happened during the time of Aguinaldo, organized to function as a consultative body

It was convened to formally declare the independence of the Philippines from Spanish rule

What happened to the Spanish colonial government? The Spaniards were being defeatedalready by the revolutionaries and one of the most debated, Americans were also fighting againstthe Spaniards.

Object behind the convening of the Malolos Congress? congress first organized as aconsultative body.

Why do you think Aguinaldo found it necessary?

Aguinaldo was not part of the illustrados, who had at that time, a monopoly of the laws and werevery influential.

Mabini says that we need a dictatorship to run the government during the independence in order tocope with certain occurrences. It would be more expedient.

Conflict with respect to constitution of 1899? there was conflict between Mabini group andCalderon group. It was about the strengthening of the powers of the legislative being the position ofCalderon


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With respect to political and religious freedom, they were more in the position of separation ofChurch and State.

With respect to the form of government? Malolos convention espoused a unicameral form.

Mabini proposed a strong presidency during the time of the revolution, a strong executive to befollowed by the people.

Other provisions?

There was a conflict between the illustrados and the military government insofar as someprovisions of the constitution are concerned. Any such conflict?

o The illustrados were aiming for a strong legislative and giving more power to the congressand reducing the power of the president, and that power is to be limited to a fewereducated ones. Only educated people have the capacity to run government

o On the other hand, the military side want a stronger executive because, first of all,

Aguinaldo was recognized by more people.o Illustrados would produce laws which could protect their interest, while the military

government want more equality for more opportunities.

Was the Malolos constitution amended or modified?

Malolos was composed mostly of lawyers. They could make laws to perpetuate themselves in power. Theywere so strong a force that they pressured Aguinaldo to dismiss Mabini as head of cabinet.

Lawyers often manage to land themselves on top of all the rest. As you can see in Philippine history, whenAguinaldo was defeated, it was the illustrado group who formed the cabinet of the American CivilGovernment. When the Japanese conquered the islands, illustrado group still managed to stay on top. Afterindependence was granted, the Cacique class took power, and in industrialization, they merely shifter theirproperties from agricultural to industrial properties.Colonial Bases for American Colonization

Spain legitimized sovereignty by religious novel theory they wanted to spread the faith. And therewas a stable international law theory

In latter part of Spanish colonization, there were problems in Spains management of its colonies.Spain was losing advantage and power. Seeing this, US took advantage.

In the US, the most important issue were the tariffs on the sugar. They claim that the US wantedSpain to let go of Cuba, mainly for economic gain for the US.

Cause of Spanish-American War in Cuba, the precipitating factor was the blow-up of battleship

Maine anchored in Havana. It was destroyed under mysterious circumstances all sailors were offboard the ship and the explosive used was so strong and could only come only from theAmericans armory. Nonetheless, US blames Spain.

What were the economic interests involved with the decision to colonize the Philippines?o Sugar was very expensive in US, and the Philippines was a main sugar making territory

o There was competition between US and Spain. US wanted to prove itself and how itdemocratizes nations that in a way is called freeing people from abuses.

When a country wants to colonize, they always manage to find moral justification for suchannexation.

o Americans announced to the whole world that they wanted to introduce democracy in thePhilippines

Author talks about the ideology of Republican party of McKinley, as well as the vested interests thatare instrumental to pushing McKinley to colonize the Philippines.

o Sugar trust sugar cane in US is a budding industry. One of the supporters of McKinleywere big business tycoons in the sugar industry. He was pressured by Heber Meyer. Heparticularly wanted the US to gain sovereignty in Cuba, and McKinley was torn betweentwo issues: his supporters to gain, and public opinion of the Americans not to become acolonizer.

o Even those who opposed colonization of the Philippines had economic reasons:

They did not want to colonize any country, as a former colony themselves, whichwas merely a sugar-coat for the economic agenda

Getting the Philippines was to take power from Spain, gain a sugar-makingindustry, and a strategic location, China being an economic and military rival.

Espoused by the beet sugar industry in the South, since cane sugar will becomea competition against them


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At that time, McKinley decided that they would free the Philippines from abuses by Spain. The twocountries had an agreement (Treaty of Paris) wherein Spain sold the Philippines to the US; andorganized a mock-war between the two in the Philippines so that Spain could save face.

Salient provisions of the Treaty of Paris:o The US is to pay $20 Million. Agabin puns that we were sold at $2 a head.o Spain was to surrender in a mere few hours of fighting with the Americans

o The US would finally take over the Philippines, particularly the center of government in

Luzon, and for the US to have military presence in Manila. After that, the US began to reform and establish government in the Philippines by importing people

and government officials to serve as the leaders that would control the government at that time

They did not want Filipinos to think that they had full control, so Filipinos were encouraged toparticipate in government activity

Americans constituted a military government headed by Gen. A. McArthur, which lasted from 1899-1900. In 1901, the military government was supplanted by the civil government headed by WH Taft.

Other legal bases mentioned by the author:o With respect to US congress, the Philippines was considered a territory. That is why it was

first placed under military governmento Philippines was an issue in political campaign in 1900s, in the presidential race between

McKinley and Jennings. McKinley was re-elected, and in that basis, the Americansconcluded that the people approved of the colonization. Several months after his election,however, McKinley was assassinated and was succeeded by his VP, Teddy Roosevelt.

Philippines was considered as an ideal tolling station on the way to mainland Asia. There wereforward looking militarists in the State department who foresaw that China was to be the rival of theUS, and if so, the Philippines was an ideal take off station for ships and planes.

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