LegHis Complete Reviewer

8/21/2019 LegHis Complete Reviewer

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C2014|PROF.OWEN LYNCH |LEGALHISTORYREVIEWER | 1

Part Two

Definitions and Theoretical Approaches

Rawls A Theory Of JusticeChapter 1: Justice as Fairness

I. GENERAL OVERVIEW:

This is the introductory chapter of the article by Rawls. Itbegins by describing the role of justice in social cooperation andwith a brief account of the primary subject of justice, the basicstructure of society. The main idea of justice as fairness, -atheory of justice that generalizes and carries to a higherlevel of abstraction the traditional conception of the socialcontract, is presented.

For purposes of clarification and contrast, the classicalutilitarian and intuitionist conceptions of justice as fairness is alsotaken up. The guiding aim of the author is to work out a theory ofjustice that is a viable alternative to these doctrines which havelong dominated the philosophical tradition.

II. SUMMARY:

A. Roles of Justice

Justice the first virtue of social institutions, as truth isof systems of thought. In a just society, the liberties ofequal citizenship are taken as settled; the rights securedby justice are not subject to political bargaining or to thecalculus of social interests

society: although a cooperative venture for mutualadvantage is marked by a conflict as well as an identityof interests

Principles of social justice: provide a way of assigningrights and suties in the basic institutions of societyand define appropriate distribution of benefits andburdens of social cooperation

Men, despite conflicts, agree that institutions are just

when no arbitrary distinctions are made betweenpersons in the assigning of basic rights and duties andwhen the rules determine a proper balance betweencompeting claims to the advantages of social life.

Problems: efficiency, coordination and stability.

B. The Subject of Justice

Primary subject of justice: basic structure of societyor the way in which major social institutionsdistribute fundamental rights and duties anddetermine the division of advantages from socialcooperation.

There are essentially deep inequalities in society and sothe principles of justice regulate the choice of a political

constitution and main elements of economic and socialsystem.

It should be possible to formulate a reasonableconception of justice for the basic structure of societyconceived for the time being as a closed systemisolated from other societies

Conception of justice: proper balance betweencompeting claims

Vs. Conception of justice: set of related principles for

identifying relevant considerations which determine thebalance.

C. The Main Idea of the Theory of Justice

Guiding idea: the principles of justice for the basicstructure of society are the object of the originalagreement

Intuitive idea: Since everyones well being dependsupon a scheme of cooperation without which no onecould have a satisfactory life, the division of advantagesshould be such as to draw forth the willingcooperation of everyone taking part in it, includingthose less well-situated.

Justice as fairness:

a. Interpretation of the initial situation and of theproblem of choice posed there

b. Set of principles which it is argued, would beagreed to.

D. The Original Position and Justification

Concept of Original Position: most philosophically favouredinterpretation of the initial choice situation for the purpose of atheory of justice

E. Classical Utilitarianism

Utilitarianism described: strict classical doctrine; themain idea espoused being that society is rightly orderedand just when its major institutions are arranged as toachieve the greatest net balance of satisfaction summedover all individuals belonging to it

The well being of society is to be construed from thefulfilment of the systems of desires of the manyindividuals who belong to it.

Social justice: principle of rational prudence applied toan aggregative conception of the welfare of the group

F. Some Related Contrasts

In a just society the basic liberties are taken for grantedand the rights secured by justice are not subject topolitical bargaining or to the calculus of social interests.

1. While the contract doctrine accepts our convictionsabout the priority of justice as on the whole sound,utilitarianism seeks to account for them as a sociallyuseful illusion.

2. Whereas the utilitarian extends to society the principle ochoice for one man, justice as fairness, being a contractview, assumes that the principles of social choice, andso the principles of justice, are themselves the object ofan original agreement.

3. Utilitarianism is a theological theory whereas justice asfairness is not. In justice as fairness, persons accept inadvance a principal of equal liberty and they do thiswithout knowledge of their more particular ends.

G. Intuitionism

Intuitionist: maintains that there exist no higher-orderconstructive criteria for determining the proper emphasifor the competing principles of justice. They have twofeatures

o Consist of a plurality of first principles whichmay conflict to give contrary directives inparticular types of cases.

o Include no explicit method, no priority rules, forweighing these principles against one another.

Believes that there must be a complete deprivation ofour judgments of social justice from recognizably ethicaprinciples; attempts to go beyond these principles either


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reduce to triviality or else lead to falsehood andoversimplification.

Gives prominent place to the appeal to our intuitivecapacities unguided by constructive and recognizablyethical criteria; denies that there exists any useful andexplicit solution to the priority problem

H. The Priority Problem

Conception of justice will have to rely on intuition to acertain extent BUT we should do what we can to reduce

the direct appeal to our considered judgments, do whatwe can to formulate explicit principles for the priorityproblem even though the dependence on intuitioncannot be eliminated entirely.

ROLE OF INTUITION OS LIMITED IN SEVERALWAYS

o Principles of justice are those which would bechosen in the original position, they are theoutcome of a certain choice situation. Thus,being rational, persons in the original positionrecognize that they should consider the priorityof these principles.

o We may be able to find principles which can beput in what author called serial or lexical order.

o Dependence on intuition can be reduced byposing more limited questions and bysubstituting prudential for moral judgment.

In addressing the priority problem, the task is that ofreducing and not of eliminating entirely the reliance onintuitive judgments.

2 ways of dealing constructively with the priorityproblem:a. Single overall principleb. Plurality of principles in lexical order

I. Some Remarks about Moral Theory

A conception of justice characterizes our moralsensibility when the everyday judgments we do makeare in accordance with its principles. These principlescan serve as part of the premises of an argument whicharrives at the matching judgments.

In describing our sense of justice, an allowance must bemade for the likelihood that considered judgments aresubject to irregularities and distortions despite the factthat they are rendered under favourable circumstances.

Theory of justice theory of moral sentiments settingout the principles governing our moral powers or oursense of justice.

Rawls, John Chaper IV: Equal LibertyTwo Principles Of Equal Liberty

The first principle of equal liberty (primary standard forconstitutional convention) requires that fundamental liberties ofthe person and the liberty of conscience and freedom of thoughtare protected and the political process as a whole be a justprocedure. The second principle dictates that social andeconomic policies be aimed at maximizing the long-termexpectations of the least advantaged under conditions of fairequality of opportunity, subject to the equal liberties maintained.

1. Three kinds of judgments a citizen has to make:a. He must judge the justice of legislation and

social policies.b. A citizen must decide which constitut ional

arrangements are just for reconciling conflictionopinions of justice. A complete conception ofjustice is not only able to assess laws andpolicies but it can also rank procedures forselecting which political opinion is to beenacted into law.

c. He must ascertain when the enactments of the

majority are to be complied with and when theycan be rejected as no longer binding.

2. THE FOUR-STAGE SEQUENCE (A device forapplying the principles of justice)

Adopt principles of justice then move to a constitutionalconvention.

Decide upon the justice of political forms and choose aconstitution that satisfies the principles of justice and isbest calculated to lead to just and effective legislation.

Design a just procedure by incorporating the liberties of equalcitizenship into the constitution. (i.e. libery of conscience andfreedom of thought, liberty of the person, and equal politicalrights.) Select from among the procedural arrangements oneswhich are most likely to lead to a just and effective legal order.Define an independent standard of the desired outcome.

Legislative Stage. Statues must satisfy not only theprinciples of justice but whatever limits are laid down inthe constitution.

Application of rules to particular cases by judges andadministrators, and the following of rules by citizensgenerally.

3. CONCEPT OF LIBERTYThe general description of liberty: this or that person (or persons)is free (or not free) from this or that constraint (or set of

constraints) to do (or not to do) so and so.

4. EQUAL LIBERTY OF CONSCIENCEWhich principle should be adopted to regulate liberties of citizensin regard to their fundamental, religious, moral and philosophicalinterests?

Principle of paternalism: guide decisions on behalf other sas they would choose for themselves as if they were at theage of reason and deciding rationally.

a. Limited by the common interest in public order andsecurity

b. Limied only when there is a reasonable expectationthat not doing so will damage the public order

5. POLITICAL JUSTICE AND THE CONSTITUTIONa. Political Justice requires that the Constitution

satisfies requirements of equal liberty and is framedto result in a just and effective system of legislation

b. Principle of Equal Participation requires a justconstitution that sets up a form of fair rivalry forpolitical office and authority.

6. RULE OF LAWThe conception of justice becomes the rule of law when appliedto the legal system. A legal system is a coercive order of publicrules addressed to rational persons for the purpose of regulatingtheir conduct and providing the framework for social cooperationPrecepts of Justice Connected to the Rule of Law:


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a. Ought implies can. It must no impose a duty to dowhat cannot be done. It conveys the idea that thosewho enact laws do so in good faith.

b. Similar cases should be treated similarly.c. There is no offense without a law.d. A legal system must make provisions for conducting

orderly trials and hearings to preserve the integrityof judicial process.

7. PRIORITY OF EQUAL LIBERTYIt means that the precedence of the principle of equal liberty over

the second principle of justice. Liberty can be restricted only forthe sake of liberty itself.

The force of justice as fairness arises from two things: therequirement that all inequalities be justified to the leastadvantaged and the priority of liberty.

First Principle: Each person is to have an equal right to themost extensive total system of equal basic libertiescompatible with a similar system of liberty for all.

Priority Rule: The principles of justice can be restricted onlyfor the sake of liberty in two cases (a) a less extensiveliberty must strengthen the total system of liberty shared byall (b) a less than equal liberty must be acceptable to thosecitizens with the lesser ability.

Jurisprudence: Understanding andShaping Law

Reisman and Schreiber

CHAPTER 1Jurisprudence: Is It Relevant?

Legal education reflects the common assumption is thatthe role of lawyers largely involves court-related activities anddisputes which people become embroiled. Facts show though,

that very few lawyers in the United States devote their time tocourts.

This is attributed to the widening variety and ambiguityof the roles and functions of people that are trained as lawyersto the extraordinarily rich variety of commercial and politicalfunctions lawyers must perform.

David Riesman posits that the lawyer is called uponconstantlyxxx to make policy judgments. xxx The agreed aimof legal education is to turn students into better citizens andcommunity leaders. xxx" This reflects a key aspect of politics,which is crafting the future.

Important questions to ask: What are the foci, the

segments of reality that lawyers must look at in order todischarge their functions? And what are the specific skills theyrequire to perform these more comprehensive professional tasksin an efficient and ethical fashion? To what extent is your legaleducation equipping you for these tasks?

Sample Problem:Imagine youre a junior member of a firm and your client

is Suzuki Industries. They want to decide on whether to invest inthe US, particularly in Penntown, Pennsylvania. Material onrelevant laws has been sent to Suzuki headquarters, but nowSuzuki asked you to visit Penntown for a more in depth report.Arriving at Penntown, whom do you ask? What do you ask?Some of the things you must take note of are the individuals,

groups and entities involved in making those critical choices iPenntown which may affect Suzukis prospective operationsyou want to know their behavior, given specific circumstances. Iother words, you need to inventory the actors in Penntowninvolved in decision-making. You must also understand thprocesses involved in decision-making. These are things that arenot found in black-letter law and formal material.

Consider for example, how most decision-making areprobably settled in informal means, like in country clubsbusiness lunches, and so on. Conventional legal research iindispensible, but there will be items, sometimes the mos

important, which cannot be learned by consulting legal textsThus, it is imperative to inventory the actors andprocessesboth formal and informal.

Reisman, A Theory Of Law From ThePolicy Perspective, In Law And Policy 79

(D. Weisstub Ed. 1976)

A Practical Guide to the Law in Context

Sample Problem:Sheikh Ibrahim ibn Fawzi, who owns the little oil state o

Darab on the Persian Gulf, is sending his children abroad fotheir university education. His youngest, Faud, is to be sent to aAmerican school. Though gifted intellectually, Sheikh Ibrahim iconcerned with Fauds social integration. He wants Faud to havehis share of fun, so the idea of a college fraternity appeals to himHe wants to know more about fraternities, particularly Thetfraternity, and so he has hired you to observe. You might contacthe National Theta Society and ask for their documents oincorporation, constitution and by-laws, among other thingsInformation you get from these, however, will not satisfy SheikIbrahim. What you need to know of, are the processes involved idecision/policy-making, in short, you need to know the livinlaw.

Now consider an example, House Regulation 9 prohibitfemales from staying in a resident members room beyond 9p.ma decorous provision in its assumption that properly raised ladieand gentlemen will not engage in sexual relations before 9p.mRegulation 9 was passed by the National Society in 1926 and fine of $10 was set. Over the years, however, the US dollar anTheta morality have depreciated precipitously. Members of Thetregularly entertain their ladies for the night and pay what ijokingly called the shack fee. Therefore, an inquiry into thesocial process is needed.

Summarizing this sort of inquiry, we get the following: Focusing Comprehensively Focusing in Detail on Relevant Features of:

a. The environmentb. The processes of effective power

c. The processes by which legal decisions aremaded. The outcomesin terms of production an

distribution of things, (the burdens andbenefits, or values) that decisions involveincluding effects on the environment.

David Cavers has observed that Law is a problemsolving profession. It is at the point of translating knowledgevalues and ideas into a just and workable plan that the work othe lawyer and legal scholar is likely to be most useful. This soof problem-solving involves: (1) determining what you want tohappen; (2) confirming that it is not likely to happen by itself; (3identifying relevant conditions; (4) clarifying the preferre


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alternative and the methods of achieving it; and (5) calculatingthe steps that can be taken to implement it under those stickyconditions characteristic of the real world.

The basic handbook for making choices involves: Clarifying goals. Describing trends in terms of these goals. Analyzing conditions that affected those trends. Predicting, guestimating if necessary, future trends. Inventing alternatives to achieve the goals.

Practice of law is the practice of problem-solving, foryourself, for your clients, and for the community at large. In DavidRiesmans words, the lawyer will be helping people determinewhat they may and what they should want.

Sample Problem:The Justices Dilemma

Claiming a communist threat, a junta of colonels hasseized control of Nijotas, a small, homogeneous and heretoforedemocratic republic in Latin America. The constitution has beensuspended and Nijotas has been converted into a police state.Leaders of the bar, cooperating with the junta, have drafted anew constitution legitimizing the regime. Even the increasinglyfrequent applications of official terror are being gilded with a

patina of sophisticated legalism.Lopez-Alcalde, Chief Justice of Nijotas, has a deeppersonal commitment to democracy, to legality and to humandignity. He has a worldwide reputation as a jurist and a humanist.The junta has already purged many on the Bench but Lopez hasnot been removed. His reputation is being used to give theregime a degree of legitimacy inside and outside the country.Lopez is well aware of this fact and his commitment to certainideals generates a deep personal conflict.

What are Lopez alternatives?I. Accept the reality of naked power and comply with it in

order to safeguard himself and his dependents.II. Retreat inward and wait for change.III. Continue as Chief Justice in a manner compatible with

safety and a low profile, but seek in each decision

to mitigate the evils of the junta.IV. Go into exile and work against the regime from abroad.V. Soak himself in gasoline and set himself afire on the

steps of the courthouse in protest over the regime.VI. Join the guerrillas in the mountains.

Admissions and Hiring DilemmasArkensota State Law School reserves twenty percent of

the places in each entering class for specified minorities; thatamount is roughly proportional to the percentage of theseminorities in the population at large. Dick White, with an averageof 76 is refused admission, but 30 minority students withaverages below 70, are admitted. In the same vein, faculty hiringpolicy requires that at least 40% of all newly hired facultymembers come from minority groups until they constitute 20% of

the faculty. Jane de la Majorit, who applies, is rejected while aminority member, whose credentials are alleged to be inferior tohers, is hired.

Should the norms and operations of society bestructured to afford Dick and Jane relief or to grant minoritypreferences? Why? If so, is the method being used the bestavailable? If Dick and Jane are entitled to relief, what should itbe?

Important ideas:8. Lawyers should be wary of thinking in terms of yes-no

or of two exclusive options.9. In a democracy, everyone is supposed to participate in

the determination of social goals.

10. As Robert Storey put it succinctly, Builders of the lawwe must have, but somewhere in the profession wmust find those who can perform the services oarchitects of the law

Chapter 2Myths, Multiplicity And Elites:

Appearance And Reality In The Law

A key feature of social systems is the integrality and thseamless symbiosis of controller and controlled. Certaiproblems require that inquiry about legal control distinguish thflow of behavior that makes up group life from those specializedinstitutions that purport to control.

The picture produced by control institutions does nocorrespond, point for point, with the actual flow of behavior othose institutions in the performance of their public function. Iother words, there is a discrepancy between the way, ainstitutions believe, groups ought to act and the actual way odoing things.

Hence, two relevant normative systems arise: (1) tha

which is supposed to apply; and (2) that which is actuallyapplied. Neither should be confused with actual behavior, whichmay be dissimilar from both.

The norm system of the official picture (that which issupposed to apply) may be called the myth system. Parts of provide the appropriate code of conduct for most groumembers; for some, most of it is their normative guide. Howevethere are enough discrepancies between this myth system andthe way things are actually done (that which is actually appliedthat forces the observer to apply another name for the unofficiabut nonetheless effective guidelines for behavior in thosediscrepant sectorsthe operational code. For many actorswithin a given social process, however, only the myth system ilaw; hence operational code activities are perceived as illegal.

The myth systemis different from legal fictions. Legafictions are authoritative statements whose patent falseness isby convention, never exposed. The device of the fiction permitthose charged with making decisions to make existing lawobsolete without changing it. A fiction is consciously false andvirtually all who use the fiction know it for what it is: a device focircumventing a norm that is obsolete. Meanwhile, the mytsystem is not widely appreciated as consciously false; does noexpress values that are obsolete, rather affirms values thacontinue to be important socially and personally.

PRIVATE SYSTEMS OF PUBLIC LAW

The hypothesis is that there are multiple legal systemssuch that within larger, conglomerate groups, all small grouphave their own normative codes. The operational code isdistinct in that is a privatepublic law in systems in which publiclaw is supposed to be public.

Elites in power process are those who have morepower and influence than others. Their assumption is that thebear a mixture of self-service and community service. Bearinspecial responsibilities bring forth the feeling that thesometimes, must take certain liberties. Their purpose is tachieve what is the necessary objective while suppressingpublicization of the means they employed, so as to maintain thmyth system that has been violated in their operations.


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Sample:When President Kennedy authorized the 1961 invasion

of Cuba, one of his advisors wrote a confidential memo to thepresident, advising:

The character and repute of President Kennedyconstitutes one of our greatest national resources. Nothingshould be done to jeopardize this invaluable asset. When liesmust be told, they should be told by subordinate officials. At nopoint should the President be asked to lend himself to the coveroperation. For this reason, there seems to me merit in SecretaryRusks suggestion that someone other than the President makethe final decision and do so in his absencesomeone whosehead can later be placed on the block if things go terribly wrong.

Practices, such as the sample above, change thesystem of public order they are supposed to protect. New meansof justification are often created by the elites who are involved insuch defections. The code is a by-product of social complexity,generated by the increase of social divisions and specializations.All foci of loyalty have, by definition, at least the rudiments of anormative code. Those who specialize in the manipulation ofpower have their operational code. In the power context, theoperational code is a private system of public law.

POPULAR RESPONSES

Elites will find it beneficial to them to conceal theoperational code. This is to avoid other members of the group tobecome disenchanted when they realize the discrepancybetween the myth system and the operational code. Groupcohesion then depends largely on the secrecy with which thecode is practiced.

Legalitymay refer to conclusions drawn by members ofthe community as to the propriety of practices determined bysome method of logical derivation from the myth system. Virtuallyall of the operational code discrepant from the myth system isthus illegal. Lawfulness, in contrast, may refer to the proprietyof practices in terms of their contribution (or lack thereof) to group

integrity and continuity, of which the myth system is part.Conclusions of lawfulness are teleological rather than logical andwill vary according to time, context, and group need.

Illustration:Consider a director of intelligence who asserts he lied to

Congress for the good of the country may, in some contexts, findconsiderable support for his deed. Though virtually no one willsay it was or should be legal, many may say it was right.

Precisely because of the discrepancies between mythsystem and operational code, maintenance of the myth system isa dynamic process requiring ongoing contributions from many.

One response may be the imposition of evils ordeprivations for deviations from the myth system. This is to deterother members from verbalizing their perceptions or deductionsof the mythic quality of the formal normative code.

Another response may come from elites. As waspreviously mentioned, they have a strong incentive to concealactivities of the operational code.

Coercive efforts may also be regularly mounted. This isto police belief in, and behavior in accord with, the myth systemby sanctioning defections from it.

Even with these popular responses, practitioners of theoperational code will often stand together to thwart the efforts othose who uphold the myth system. It is likely that practices othe operational code will nonetheless continue if those whocontrol them conclude that they are necessary for group life.

Sample:A legislature may pass a very open-textured statute to

give increased discretion to those charged with applying it, aftebeing told in executive session that some things just have to bdone and it would be better for all if nothing were said about it.

What is characteristic of the operational code is that it ishared by key members of the control apparatus, that itdeviations from the myth system are selectively tolerated andepend on the contingency, the identities of agents and objectsthe purpose of the act and the probable effects on the largeorganization.

Lex imperfecta(imperfect law, or law without teeth) ioften a conscious elite design for dealing with aggravated mytsystem and operational code discrepancies. As the late AleRose remarked, To put people in law enforcement for thpurpose of non-enforcement is a very big attraction fopoliticians.

A cognate species of lex imperfecta is a lex simulataLex simulata performs a function similar to imperfect law, it is statutory instrument apparently operable, but one that neitheprescribers nor putative target audience ever intended to beapplied. Prototype of this is the Code of Hammurabi. A kecharacteristic of such laws is that they do not have a meaningfulegislative history.

Such laws are legislated to reaffirm on the ideologicalevel that component of the myth, to reassure peripheraconstituent groups of the continuing vigor of the myth. It mereprovides an illusion that the government is doing what it shoulbe doing, but not for influencing pertinent behavior.

Sample:I think one good example would be our very own CARP

and CARPER, or any of our land reform laws for that matteThey were legislated only to appease the most basic cry of thefarmers and landless peoples that the government doesomething about their situation. But in reality, our land reformlaws were never meant to provide for a genuine agrarian reform.

Reisman, A Theory Of Law From ThePolicy Perspective.

In Law And Policy 84-85 (D. WeisstubEd. 1976)

Sample:Consider the example of the fraternity Theta earlie

mentioned. To extend that example, the written code of Thetdoes not condone cheating. Under their written Rules, a membemay be expelled when caught doing such act. Their actual codehowever, reveals a systematic way of cheating maintained astatus quo by members of Theta. When a member exposes thcheating of another, he is in fact conforming to the written code othe University and Theta that disallows cheating, but for his ache is expelled from Theta because he violated the actual code.


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The situation above illustrates how conformity to theoperational code of a group may also render a person subject tosanctions under the newer regime. Put simply, we are allsimultaneously members of different groups, each of which makeconflicting demands.

Most groups, in competition for the loyalties ofindividuals, develop certain allocating principles akin to the rulesof conflicts of law, according to which the pre-eminence ofdifferent groups will be recognized for certain social sectors.Conflicts between demands are often left unresolved; this is

because each group may claim pre-eminence. This proves to bea problem because a member of a particular stratum who feelsthat his law is challenged by the nonconforming behavior ofanother is likely to characterize the behavior as deviant. A moredisengaged observer, however, may identify competing systems,in which pre-eminence is not clearly established in thephenomenal world of the members.

-Owen J. Lynch, Colonial Legacies in a Fragile Republic: AHistory of Philippine Land Law and State Formation withEmphasis on the Early United States Regime (1898-1913), JSDdissertation, Yale Law School (1991): Appendix One,Methodology (Policy Science), pp. I-xv.

Owen Lynch, Methodological OverviewThe dissertation uses policy science as a methodology from aperspective of an anthropological lawyer and spans half acentury but is focused on the Taft era (1900-1913), the key periodof Phil.-land-law innovations. Its divided into 2 parts: Spanish era(249301899) and US occupation (1898-1913).

POLICY SCIENCEIts the methodology used in Prof. Lynchsdissertation.

Definition of law in policy science: process of making decisionsin conformity with the expectations of appropriateness of thosewho are politically relevant; a process of authoritative decision.

Goal of policy science: the promotion of human dignity byproviding a more comprehensive and enlightened understandingof important socio-legal issues.

Policy science identifies the politically relevantparticipants and emphasizes the political elites.The dissertationgoes back to the historical origins and state-created legalprocesses which recognize and grant rights to own and use Phil.Natural resources and is designed to enhance the processes ofpolicy-making.

ANTHROPOLOGICAL LAWYERProf. Lynch is not a legal anthropologist even though

people refer to him as such. He advocates rural peoples holdingundocumented ancestral-domain right and does inquiries into theuse of ethnicity and cultural distinctions to empower tribalpeoples and minorities. He is actually an anthropological lawyer!He focuses on the Phil. state and is interested in the state andcitizenry, which contrasts Phil. Historiography. So, his dissertationreflects a state-centric perspective.

Prof. Lynch came to the Phils. In August 1980 for thefirst time. After staying for 7 years, he still felt as an outsiderwhich he thought was a handicap in his effort to understand Phil.History and culture. He did find it easier disengage and observeintellectually.

LAND TENUREThe dissertation eschews the premise that land tenure

means people can own land or other natural resources. Itemploys the insight of Wesley Newcombe Hohfeld who believed

hat all legal relations are between persons. In short, its not abouthe rights to land, rather the rights to the social status created.This is, he says, is the nature of land ownership in the Phils.

Part Three

Pre-History and Indigenous Culture inthe 21st Century

Culture as HistoryBy: Nick Joaquin

The medium itself is the message, and the message is,metamorphosis.

Introduction

Joaquin started his essay by relating history to culture. We havecome to accustom culture with lofty dicta as literature and artsand quite forgot that we are being shaped by the tools we shapeand the culture is the way of life being impressed on a communitby its technics. For instance, the advent of the printing presspaved for the ear culture to shift to the eye culture, the worshiof literacy, and the vast results are individualism, nationalism, etc

These however are not studied with regard to their original case.He further elaborates our lack of appreciation to the cathedralswe built, the taste in utensil and furniture, folk-art, folk-tale. Thesare all culture concentrated in the literate eye, as compared tothe European literary sense of culture, the rift being ours is one oFOLK culture and theirs PRINT culture. But these are all indanger of being obsolete, given the dawn of technology. Suchshift being an illustration of culture as history, of which point is noon how we use a tool but on how it uses us, to our unknowingtransfiguration.

Tools as Agents of History

McLuhans thesis is his centerpiece. According to McLuhan, thedrama of history is a crude pageant whose inner meaning ismans metamorphosis through the media.

Tools introduced to history recede to the background, upstagedby their effects, and regardless merely as tools, no longer aspowerful agents of history.

Reasons: (a) those who introduced them are already familiarwith these tools and were in no position to gauge the effects opeople for whom they were wondrous novelties; (b) when webegan writing history, we focused on the outrage caused by thintervention in our own history and reject the intervention asnot our own.

Joaquin proposes through McLuhans framework, that weshould shift emphasis from conventional history to the historyof culture, which is a manner of perceiving 1521-1565 as a

time not of the coming of the West to our land, but the comingto our culture of certain tools as the wheel, plow, cement, roadbook, printing press, etc, and how we acted with and reactedto, these tools. In short, to read the period as the epoch of theFilipinos metamorphosis through the media.

Relevance of Tool as Culture as History to the People

If the medium is itself the message, then metamorphosisstarted right with the arrival of the new tools from the West.

Joaquin relates the subsistence economy of the pre-SpanishPhilippines, which transformed into an export economy afterthe introduction of tools


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The technical revolution i.e. the introduction of the PLOW,the drafting of the carabao are the economic factors whichamounted to the change.

Two critiques: (a) the introduction of tools did not affect theFilipino way of life; (b) if it did had effects, then the effects weremore corruptive than helpful

Joaquin defends this through illustrating how painting isaffected by photography. He said that photography corruptedpainting only if painting had continued to do what photographynow can do better, but in reality, it is otherwise.

An introduction of a new media creates a new culturealtogether, not a corruptive force of the existing.

In fact, the Philippines is transformed from the subsistenceculture to the first world economy of modern times as seen inthe galleon trade

Joaquin also points that our lament over the ignorance of ourforefathers are misplaced, because these people are the onewho created the grandiose cathedrals and many other complexstructures we look up as functional beauty during these times.

All these tools brought about the two most notable features ofour new identity (a) a sense of history; (b) a sense ofnational community.

Another thing to note is the lack of chronology of the Filipinosbefore the Christian settlers came. This had vast effect overthe historical sense of ownership of lands, since deeds of

ownership of lands are history in document, while an oraltradition of land ownership (in the case of our ancestors)is mythical ownership.

The plow did not corrupt, it begot the Filipino

The technics, our training in common in new media was whatforged the identity we now term Filipino

This is antithetical to those who believe that Filipinos existeven before the tools came. But according to Joaquin,repugnance will also mean being anti-historical, because wehave not yet reached a Methuselah to antedate the term. Hesaid, we are not fellahin (a peasant or agricultural worker in anArab country).

Joaquin claims that before 1521, we could have been anythingand everything not Filipino; after 1565 we can be nothing butFilipino

He cites Spengler in articulating about the soul of culture beinguntouched by invasion, he says that the course of culture couldbe affected, but not its soul.

There must be a self to have a soul

SPENGLER: When diverse elements fuse into a unit thatbegins to feel itself a culture community, a people, a nation,then a soul has been born, xxx that soul deny it or resist it ortry to change it, these very denials and revolts will onlyadvance the destiny of that identity, as every change will at lastbe found to have merely evolved the identity on a farther plane.

The blame must fall on Asia

If it be true indeed that we were Westernized to the cost of ourAsian soul, then the blame must fall, not on the West, but onAsia.

We say that we were Christianized to our cultural disaster butdo we ever ask why we were not Buddhicized, or Taocized, orHinducized.. to our cultural salvation? We are bypassed by ourAsian neighbors. Mother Asia refused to share her soul withus. And we had to wait for the West to bring us such tools.

Asia disdained to initiate us in the craft and the answercovers the entire mystery of our non-initiation into Asiantechnics when such an initiation, being conducted under Asian

auspices, would have guaranteed us a culture with an Asianaccent.

In terms of civilization, we seem to have gotten none of thebasic media from our Asian neighbors.

Joaquin claims that if the West had not come, we could havebeen portrayed the same way as Samoans, as a small Pacificpocket of paganism, with various Muslim city-states on thecoasts, various kingdoms in the interior, various clan-turfsin the hills, etc.

In culture as history, we get a corrective to history assuperstition, because the culture itself provides the evidencewith which to check and culture double-check the history whenno data are available.

Test on Philippine Prehistoric Culture

There is a total absence of sea in Philippine folklore There is absence of any native tradition on our supposed

voyagings in pre-West Asia Joaquin commented that what the porcelains from China

publicize is not any cultural interplay, but only a lack oftechnology on our part and on the part of the Chinese, anexploitation of that technological ignorance and therefore adesire to maintain it in order to keep us a captive of colonialmarket.

These porcelains are unimportant in our culture as toy totems

The Pre-West Philippines is unknown and unknowing

The attitudes of our neighbors to us are ignorant andindifferent, not when the Spanish epoch dawned, we ceased tobe terra incognita, the sudden change in treatment by Asia isapparent

The West brought us to Asia

It is thanks to the mediation of the West, which brought us intoAsia and vice versa

Asia in general enter our culture only after we had beenopened up by the West; and having been entered, we

proceeded to become more thoroughly Asianized during theearly colonial era in all the previous ages

But we had little such Asian identity because we had littleshare in the progressive culture of Asia

Final Note

Joaquin thinks that we should begin to realize that during thecolonial period, there are two processes: Westernization, andAsianizing.

Joaquin: Culture itself is history

McLuhan: The medium is the message (theory ofmetamorphosis)

Spengler: The method of a science is the science itself (theory

of soul-formation) What is truly Asian, does not necessarily mean, a true Asian

in its stereotypical, typical sense.

Our guilt or shame springs from the confusion of identification,as Joaquin puts it, we cant identify ourselves strictly betweenfish or fowl, between East or West. With these he claims thatwe should take pride in our uniqueness instead rather thanlament it over.

Why isnt it enough to be just Filipino? This attitude springs from a static view of culture, which

breeds the illusion that history can be rejected at will. Wepreferred to measure Philippine culture not by the highest ithas reached but by the lowest it has stayed backward.


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Rejected or not, Joaquin believes that the 16th

and 17th

centuries remain the epoch, meaning the turning point, in ourhistory because then was started the process of the making ofthe Filipino his Westernizing, but also with his Asianizing.

Culture as history being existentialist, its dictum on this wouldprobably be that the epoch that evolved the objects of culture,they being history, affect Filipino everyday living; and thosewho would slight or skip history are trying to edit these objectsfrom Philippine life.

-Perfecto V. Fernandez, Custom Law in Pre-ConquestPhilippines:Chapter One: Pre-conquest Society and Custom Law, pp. 1-19;Chapter Six: Household and Domestic Relations, pp. 74-98;Chapter Seven: Property and Contracts, pp. 99-110;Chapter Nine: Remedies and Procedures, pp. 126-136, UPLaw Center (1976).

CHAPTER 1Pre-Conquest Society and Custom Law

Identification of custom law

Identification of custom law

Custom lawrefers to the body of customs and usages dealingwith liability in preconquest society and enforced, or permitted tobe enforced, by political authority in the communities concerned.

The rules belonging to the system is simplified throughrecognitional rules.

Technique of identification in every brgy during the conquest,custom laws are easily identifiable because of the presence oldpeople knowledgeable of such rules.

There is a need to sift the custom aw rules from the mass ofmaterial and to set them apart for analysis and comparison.Criteria of legality:

1. Normativeness general character prescribing aspecific norm of conduct

2. Existence of sanction by the political communityconcerned.

Regional Diversity of Custom Law

Custom law should NOT be taken to suggest that one system oflaw had prevailed throughout preconquest Philippines. Manyaccounts describe customs and usages of particular ethnicgroups, notwithstanding considerable uniformity of basicconcepts and principles

Regional Political Communities

Barangays extensive political communities of early Filipinos. Itwas an acceptable belief that it was the most extensive politicalcommunities and that no regional government existed.Political community a society where there is prevailingrecognition of cases when the use of force is wrongful, and caseswhen it is priviledged or legitimate; requires compresence of bothLAW and GOVERNMENT operating with respect to the group.

ACTUALLY, political communities more extensive than thebarangays had existed, since there were large areas or regionsunder the sway of fairly coherent systems of custom law(contrary to the common belief).

Custom law- OBLIGATORY or BINDING in character; it is ahighly integrative force. With custom law, there is a substantialdegree of political unity in a certain area or region. Within thepolitical community, government existed, but it was diffused notcentralized, as evidenced bybarangays.

Diversity Within the Regional Community

The lack of a centralized administration of custom lawfostered its break up as a system, through increasingdivergence in the rules applied. Since there was no centralauthority to overrule innovations, tendency towards steady

differentiation in the rules applied could not be prevented. The emergence of barangays as a political entity, aggravate

by the physical/geographical barriers , also fostered diversityin the custom law of the region. The barangays representeda different or separate jurisdiction administering anindependent system of law.

Barangay Organization

DATU generally functions as the leader of his peers; executedthe laws; mediator; conciliator sometimes has functions of thejudge, and sometimes of the legislator.

General Aspects of Custom Law

Uniformities persist, especially as regards fundamentalprecepts.This is particularly true of the principles governingliability.Common rules are traceable to a common cultural inheritance ofthe preconquest Filipinos reinforced by similar conditions ofenvironment.

Comparison of the early custom law with the present legalsystem in the Philippines:

1. Absence of specialization and the paucity of rules.2. Government was minimal3. No specialized machinery of justice4. No officials performing special functions of policemen o

judge.

5. No compilation of rules6. No distinctions between fundamental law and statute.7. Absence of great mass of legal concepts and standards

Social and Legal Change in the Preconquest Society

Law is the creation and wears the image, of great socialneeds. Law mirrors cultural growth in its principal contours. Icannot stand still but must respond to the dominant needs ointerests generated by the social process. On the otherhand, the growth of law is tied to the possibilities of growth inthe society that it serves.

Legal change, while a necessary concomitant of socialchange, is usually preceded by the latter.

In the preconquest society, acceleration of trade and

commerce was producing disturbing changes; recruitment ofalipin was stimulated since more working hands are neededThere is widespread use and acceptance of precious metallike gold as medium of exchange.

FOUNDATIONS FOR AN EXCHANGE ECONOMY were beinglaid.At the time of conquest, the native communities were undergoingsubtle but RADICAL changes. There existed definite trendstowards territorial expansion, centralization of authority, increasegovernmental activity, and economic specialization. (reflectseconomic changes)

Secular Orientation


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Orientation of custom law was SECULAR.

Political authority was never derived from any religiousleader. DATUs have no religious roles or functions.

Religion in preconquest society was a household affair, aconcern of the family, not the community.

Functions of Custom Law

Custom law should be evaluated in terms of the social need sand how it addressed those needs.

Its greatest task: regulation of use of force in the resolution ofconflicts.Such task is discharged in many ways:

1. It prescribed conditions for legitimate resort to the use offorce.

2. Offers alternative remedies3. Determined who had the authority to resolve conflictsm

and by what means4. Determined the order of labor.

Preservation of the PeaceCustom laws central function: preserve the peace.

1. Creates a system of pecuniary fines and highly rational

proceedings.2. The same remedies were available for different (all)wrongs.

Order of Labor2 types of Obligation of service:

1. Obligations of the households within the brgy.2. Generally economic in origin.

BARANGAYS WERE ECONOMICALLY INDEPENDENT ANDSELF SUFFICIENT.

Households Contrasted with Ancient Hebrew and Romanfamilies

1. Household head was never domineering.

2. Women in our society need not submit to legal inferiority.3. Duties are conjugal when it comes to family issues.EQUALITY between sexes.

Status in Custom Law

Principalia ruling households; wealthiest

Common households modest resources Alipin dependents; have little or none.

Birth or lineage was important, but not decisive. Status of members determined by birth.

Little distinction between legal rights of men and women.GENDER NEUTRAL.

Women had rights to own properties, obtain divorce,remarry, entitled to share of conjugal earnings.

CHAPTER 6HOUSEHOLD AND DOMESTIC

RELATIONS

I. KINSHIP IN PRE-CONQUEST SOCIETY

Kinship is the most important determinant of status in pre-conquest community. Parentage determines his position,prerogatives and obligations. Generally the children succeededhis or her fathers position, rank and estate.

Kinship also determines liability. A crime is imputable to the wholhousehold and retribution can be taken against the whole family.

Kinship also imposed the obligation of vengeance. It is the dutyof the family to hunt for a family members murderer. Kinship canalso sometimes be a mitigating factor i.e. when a family memberkills another family member, the death penalty is not imposed.

Kinship however didnt mean that family members treated eachother different from strangers. As long as you are from a differenhousehold, loans and other property claims were enforced as if

the parties were strangers. This practice is due to the belief thatone has to provide for ones need in the afterlife.

The subordination of the demands of kinship to the interests ofthe household was partly due to the system of multiple kinship.Unlike ancient systems in Europe, bilateral kinship is recognizedA child is related to the fathers relatives as well as the mothers.When either parent dies, the assets are divided among the heirsincluding the family of the couple. In this case, the householdrather than the family endures.

Bilateral kinship was important because it regulated peace andorder in the barangay. Since people are related to both the fatheand the mothers relatives, generally, most households in thebarangay are related by blood. When conflicts arise, bilateralkinship provides for conciliation or at least neutrality.

Consanguinity was supplemented by the presence of thepractices of adoption and blood-compact wherein the adopted orthe blood brother becomes part of the household.

II. THE HOUSEHOLD IN CUSTOM LAW

Custom law largely pertains to relations between householdsrather than individuals. The term household includes thefollowing:

a. The immediate family. (wife and unmarried children)b. Close relatives. (elderly people)c. Married children when they dont have homesteads yet.

d. In some cases, concubines and their children.e. Extended family (alipins and their families)

Evidence shows that the generally, earnings are communal undethe administration of the head. Custom however recognized theright of household members to their own belongings and propertymostly items of personal use or adornment. Even the alipin wereentitled to hold property.

Decisions were naturally made by the head but was alwaysinfluenced by other members of the household especially thespouse and the elder folk.

III. RELIGION AND THE HOUSEHOLD

Religion was primarily a household concern emphasizingancestor worship and propitiation of the dead. The body of widelyheld community beliefs included nature worship, animism and lifeafter death. There were numerous deities in charge of theimportant things in the community. They varied in function, nameauthority, and most of them were good but some evil.

Central to pre-conquest religion was the belief that departedancestors became subordinate deities with powers to ward ofharm and protect the living. The household make up the faithful,the house the temple, and the rituals were often sacrifices to thedeities during times of crisis.


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10| C2014|PROF.OWEN LYNCH |LEGALHISTORYREVIEWER

They also worshipped idols called diwata by the Visayans andanitos by the Tagalogs. Its not surprising that when theSpaniards came, they found little in the way of organized religionpertaining to places of worship, established doctrines, sects orthe presence of a priestly class.

However, it shouldnt be thought that religion was casual for pre-conquest society. Rather, it simply highlights the fact thatreligious practices were household concerns and not communal.

The ceremonies of mourning and burial eased the transition from

this life to the next and were elaborate and costly. To insure thewelcome of the deceased in the spirit world, he was providedwith the best of whatever was needed for his last journey. Muchlike the Egyptian practice, they bury the body with all that theperson will require in the next life.

Consequently, these practices entailed heavy expenses for thehousehold which in turn promulgate the attitude of accumulationand materialism so to speak.

IV. MARRIAGE

Marriage in pre-conquest society was largely a private affair.Regulation was minimal. However, when it comes the propertyarrangements, custom law governs. The groom compensated thebrides household with the loss of the potential revenue broughtabout by the brides work. The gain of the grooms householdshould be offset by the payment to the brides household.

Rank wasnt a bar to marriage. People can marry others ofdifferent rank although usually, people marry within their rank.Kinship also wasnt a bar to marriage. Marriage between firstcousins were common but the sexual taboo of sexual unionbetween members of the same family was still present.

V. BETROTHAL

Marriage were generally agreed upon by the heads of thehouseholds so in some cases, the betrothed were only children.

Betrothal is considered as a solemn undertaking and any partywho breaches it is subject to a fine. People should be carefulregarding what they say regarding marriage. If a man says in adrunken feast that he will mary a girl, not fulfilling this willconsequently render him with a fine.

VI. MARRIAGE GIFTS

As previously said, marriage in pre-conquest society involved thegroom paying the relatives of the bride the compensatory amountof the loss of the brides revenue to the household. This is whythe practice is usually mistaken as the family selling the girl. Thecompensation to the bridges family is calledbigay-caya. Thiscompensation is conditional in the sense that if the bride stopsrendering the service to the grooms household, thebigay-caya

should be returned. Where there are children, the dowry goes tothe children.

Besides the bigay-caya, the groom also gives panhimuyat whichis given to the brides mother in recognition of her effort to rearand train her daughter. Another gift, called thepasoso is given tothe woman who nursed the bride.

In the situation where the bigay-caya exceeds the customaryamount, the brides household is obligated to make a return giftcalled a pasonor.

VII. MARRIAGE CEREMONY

Marriage is deemed celebrated when the dowry is paid and thebride is delivered to the grooms household. The degree ofextravagance was determined by the parties rank. The climax ofthe ceremony was the announcement before the gathered throngof people once the couple has eaten from one plate drunk fromthe same cup. (the marriage ceremony is detailed in the readingsbut arent too important or relevant, digesting it would simply bethe same as copying it)

VIII. HUSBAND AND WIFE

Concubinage was fairly widespread but the general rule was thatonly the legitimate wife took charge of the household and itsaffairs. Among the wealthy Visayans, two or more wives wereallowed. Polygamy was not usually done except in cases wherethe wife couldnt bear a child.

While a daughter remains unmarried, she is under parentalauthority and cant old property unless she is the head of thehousehold. The general property regime governing couples isconjugal partnership of gains but when an investment was madesolely by a single party, the gains were exclusive.

A double standard exists regarding chastity. Concubinagecommitted by the husband was not punished but adultery by thewife is sanctioned. It is deemed the right of the husband to kill thwife and her paramour if he caught them in the act.

IX. SEPARATION AND DIVORCE

Recognizing the consensual nature of marriage, separation anddivorce is allowed especially when there are valid reasons. Theparty causing the separation was subject to the economicsanctions. Upon the separation of the spouses, the property isdivided between the spouses in equal shares.

X. PARENT AND CHILD

The continuity of the household demanded procreation and thebirth of children whose interests were accorded full protection. To

conserve the resource of the household, only legitimate childrenwere entitled to succeed. Regardless of the number of marriagesa man might make, all children born of such marriages areentitled to inherit. It is not the custom to disinherit anyone as longas he or she is of legitimate birth.

Children remained under parental authority until they came ofage. Males can be emancipated before marriage. Womenremained under parental authority until they marry. If the couplemarries at a tender age, they live under the brides householduntil they come of age. Illegitimate and adulterous childrenremains under the mother s parental authority.

XI. SUCCESSION AND INHERTICANCE

Custom law in pre-conquest society extended not only to materiaestate but embraced as well status and political office.

In the case of the chief or dominant household, the successorbecame not only the head but also the datu. First preferencewent to the eldest son, followed by the next and so on accordingto age. In case there were no male children, the daughterssucceeded and in the absence of daughters, the nearest relativesucceeded.

Generally, illegitimates had lesser successional rights. Spuriousor adulterous children generally had no inheritance but they werestill given property by the legitimate descendants or by will. An


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exception is when a father pays the fine of an illegitimate child hehad with another free woman, the child becomes legitimate.

The order of succession gives preference to hose in thehousehold, then kinfolk in other household. Succession firstpertains to the children, then to the brothers and sisters, then toother relatives or kin.

Kinship was strictly observed in the devolution of inheritedproperty. Generally, a husband or wife do not inherit from eachother. If the couple doesnt have children, the estate goes to his

or her own relatives.

Custom law before didnt consider ascendants as preferred heirs.This is because by the time that they had married and hadestablished separate households, the needs of their ownhouseholds would be preferred.

Among the Tagalogs, illegitimates born of concubines, wereentitled by custom to a share in the estate of their father at therate of half of the share of a legitimate child. Among legitimateheirs, the estate was divided in equal shares.

XII. ADOPTION

Because of the natural fertility of women, adoption wasnt asimportant as it was in the ancient law of Rome. Sources are silentregarding the formalities and ceremonies of adoption. Theadopted gains the right to inherit. The right to inherit is apparentlypersonal because it if the adopted dies before the adopter, theright extinguishes.

CHAPTER 7PROPERTY and CONTRACTS

Underdevelopment of Property and Contract Rules

The law of contracts was the least developed in pre-conquestcustom law.

Reasons:1. Abundance of resources meet the requirement of brgylife.

2. Economic organization of barangay society (selfsufficiency)

3. Nature of the exchanges that occurred barternofurther expectation on the parties; protection ofproperties not needed.

Scope of Property

Rights over things are purely a creature of law. Man acquiredthings first before they acquire property (things becomeproperty when they gain right over it)

Society was in a process of transformation. It is starting to

assume the aspects of entrepreneurial enterprise. While the conquest interrupted the commercial evolution in a

barangay society, the foundations of legal development hadalready been laid. There were rules on sale, partnership andloan, although very SCARCE.

Lands as Property

Chief objects of private ownership land, gold, slaves andarticles for personal use or consumption.

Unoccupied lands- whoever cleared and cultivate it wasrecognized as the owner and possessor. These are not soldbut rather are passed to the descendants throughsuccession, although seizure of lands by creditors oremergency selling of lands do happen.

Commerce in MovablesFactors of Growth of commerce :

1. Abundant resources and fertile lands productionexceeds the needs. Surpluses are sold.

2. Location of the barangays were generally favorable totrade.

Weights and Measures

Availability of weights and measures in most regionsevidences intense commercial activity.

Measure of quantity caban; ganta; chupa; Linear measurement: arms length; width of the hand;

etc.

Barter and Sale not for market economy. Subsistence economy - Absence of a standard medium

of exchange. In some regions, market system is emerging. Prices are

fixed at a specific weight of gold.

LOANS

Commercial growth- indicated by prevalence of loans. Practice of lending was widespread and attended with

abuses.

Sangla a spreading form of loan.

USURY

General view: Practice of usury was condemned.

However such view was only the reflection of theCatholic Church stand. They considered usury as a sin.

What to the native leaders was a reasonable charge forthe use of their property was quite viewed by the friarsnegatively.

PARTNERSHIP usual form of business association;contribution to a common fund by the parties andsharing the profits and losses in proportion to theircontributions.

System of mandatory ransom if a partner was seizedor captured while undertaking partnership business,partner remaining behind must pay half the ransomprice demanded for release.

Treated as just one of the risks in business.

__oOo__

CHAPTER 9REMEDIES AND PROCEDURE

I. DEVELOPMENT OF JUDICIAL SYSTEM

At the time of conquest, three techniques were in use for thesettlement or resolution of disputes:

a. Mediation and conciliationb. Arbitrationc. Formal adjudication

In household relations, the established usage was to dealthrough an intermediary. This is because:

a. Use of a third party prevented the humiliation and loss oface

b. An intermediary greatly enhanced the chances of asuccessful transaction

Where an intermediary is used, it is customary to reward him incase his efforts were met with success. Sometimes, the mediato


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is entitled to a share in the amount or property recovered inconsequence of his intervention.

A mediator serves actually as a champion of one party. Byplacing his own resources on the side of the claimant, he made itimpracticable for the other side to resist by force and thereforepaved the way to peaceful settlement or compromise. Soon, thearbitrator became more akin to a judge. Later on, the rulinghouseholds acquired overwhelming power, and their authoritywas consolidated and the datus adjudicated claims as truejudges. This practice was an outgrowth of the principle of

reciprocity.

II. RELIGION AND JUSTICE

The system of justice in pre-conquest society was deeply rootedin religion, magic and myth. There was established a highlyrational procedure featuring stages now found in our remediallaw.

The foremost of which is the oath. At that time, due totechonological constraints, testimonies were crucial as they werealmost always the sole source of proof. Religion plays its part assupernatural retribution facilitated the telling of truth.

There was also trial by ordeal. This obviously is rooted in religionas the belief that gods will intervene and have a hand inpunishing the wicked and protecting the innocent.

III. OATHS

Underlying all oaths taken in connection with litigation, civil andcriminal was the supernatural belief in deities and their powers topunish those who have falsely sworn.

This is applicable in the practice of sanglaas it corresponds toabond or surety for performance. The function of the oath was toreinforce belief in the declaration to which it relates by invokingsome deity as the guarantor of its truth wherein the affiant is to bechastised in case the deity was made party to a false declaration.

IV. TECHNIQUES OF SETTLEMENT

Owing to the looseness of political organization in pre-conquestsociety, the preponderant method of settling disputes and wrongswas through mediation and conciliation, accompanied byarbitration.

In case some great wrong is done, common friends of thewarring parties undertook to bring about a reconciliation. Thisusually took the form of composition of the offense, throughpayment by the offender of a sum determined in accordance withthe customary schedule.

In case parties are willing to settle a dispute but could not agree

on a specific issue, this was resolved through arbitration. Animpartial person is chosen generally from another village. Menwith reputations of being fair are usually chosen.

Even when the aggrieved party is the one who initiated the suit,it is part of the chiefs procedure to try to effect a settlement.

V. POWER OF ADJUDICATION

Barangays in different regions of the country were at the time ofconquest, naturally in different stages of integration. In someadvanced barangays, we find that the task of adjudicationpertained solely to the chief. In other communities not soadvanced, the datu shared the authority with the old man of the

barangay. Still in others, the datu merely acts as mediator orarbitrator. In cases like these, it is customary that the old men ofthe barangay who decides according to prevailing customs.

VI. PROCEDURE IN CONTESTED CASES

When the controversy is not settled despite efforts at mediation, trail or hearing of the cause was held. The first step is for thechief to get an oath from both parties. The trial simply consistedof testimonies and declarations from both sides. After both sidesare heard, judgment was made and sentences pronounced

accordingly.

The outcome heavily relies on the weight of the evidence asmeasured by the number of witnesses in favor of the cause.Where both parties were equal, the difference of the claim andcounterclaim if any was split.

The sentence, whatever it may be, is executed without delay. Thchief or judge with the winning party enforces it sometimes withthe use of force. The proceeds from the judgment is then splitinto three. One part going to the judge or chief, another part tothe witnesses, and another to the successful litigant.

VII. DETERMINATION OF GUILT BY ORDEAL OR MAGIC

At the time of conquest, there were also less rational proceduresspecially in cases of theft. One of them was trial by ordeal.Several suspects were required to bring un a bundle of clothwherein the stolen article can be hidden. They are jumbled andopened, and if the stolen article is present, the case is dismissedIf the item is still not there, they are subjected to different tasks.One of which is the first person to come out of the river for air isdeclared the criminal. Another is the person who refuses to puthis hand into pot filled with boiling water is held liable for thepenalty. Lastly, the person whose candle first burns out isdeclared the criminal.

VIII. COMPOSITION

For most offenses, the customary mode of redress wascomposition. The offender pays the established fine may it begold or jewels. In case the parties could not agree, the datucomes in who adjudicates and compels payment.

Even some offenses subject to vengeance had to be settled bycomposition. When the offending party successfully evades thevengeance of the offended party, the offended party is forced toaccept a fine in lieu of vengeance.

This is reasonable because if vengeance is dragged on, it willdisturb the peace and order of the community for a long time.Furthermore, the passage of time removes the justification ofvengeance due to fury and blood-lust. When the vengeancedrags on, the datu intervenes and arbitrates and fixes a fine.

In some cases wherein the death penalty is imposed, the guiltyparty can sometimes pay to get out of the sentence, in effectbuying off the community.

Part Four

The Mythical Regalian Doctrine

Chapter 1Spanish Sovereignty: The Legal Bases

Owen Lynch


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1415 Portugal initiated European colonial expansionism byseizing the Muslim port-city of Cueta on the African side of theGibraltar Straits.1456 Pope Calixto III gave papal blessing s to previous andprospective Portuguese acquisitions of territories.1492 Christopher Columbus entered into a commercial contractwith Los Reyes Catolicos, Ferdinand and Isabella. This is ajourney across the Atlantic Ocean.

The contract gave no heed to the prior understandingbetween Portugal and the pope. Spain only invoked domestic lawto legitimize its colonial claims. But for fear that the Portuguese

might decide to occupy the islands discovered by Spain byinvoking papal briefs, Spain decided to legitimize theirexpeditions. Because the Spanish Crown enjoyed considerableleverage at the Vatican it was able to gain the support of thePope. Pope Alexander VI was Spanish-born and was indebted toSpain for the appointment of his sixteen year old son asarchbishop of Valencia.

Declaration of Alexander: Papal Bulls1. Inter Caetera Grant discovered territories to Spanish

envoys provided that the place is inhabited. (Spain not

satisfied because it was a private communication not

public)

2. Eximiae Devotionis Granted the Spanish Crown the

same rights given to kings of Portugal. But was with aproviso that the inhabitants and dwellers will be

instructed the Catholic faith.

3. Piis Fidelium Licensed the missionaries and

empowered Ferdinand to select them.

4. Another Bull also named Inter Caetera Laid the

foundation for the Treaty of Tordesillias. Divided the

world into two. Dudum Siquidem laid the rule that Spain

gains all territories discovered by sailing West;

Praecelsae laid the rule that Portugal gains territories

discovered by sailing East.

Magellan and the Islas de San Lazaro

Magellan, an experienced Portuguese mariner securedthe patronage of the Spanish king Charles I for a daring effort toreach Moluccas by sailing around the southern tip of the newworld. But strangely, instead of going directly to Moluccas itchanged course and reached the Philippines. March 17, 1521,they reached the shores of Samar and named the unexploredarchipelago Islas de San Lazaro and the island of Samar wasreferred as Felipinas later during Villalobos expedition. The firstmass in the Philippines was held in Limasawa on March 31,1521. In that afternoon a wooden cross was planted atop anearby hill. It symbolizes the papal right to proselytize.

Contrary to the prevailing Regalian Doctrine, neither thepope, the Spanish King, nor Magellan purported to usurpunilaterally all of the customary property rights, or even thesovereign rights, of the natives.

Sovereignty and the Alexandrian DeclarationNearly thirty years elapsed between the discovery of

the Americas and Magellans arrival in the Pacific archipelago. Bythe time Miguel de Legazpi arrived in 1565, Spain had alreadygarnered a considerable degree of experience in themanagement and exploitation of its overseas possession. KingPhilip II wanted to prevent any repeat of the brutal conquests ofMexico and Peru. Dominican theologian and renowned humanist,Francisco de Vitoria said that non-Christian leaders must beobeyed by their subjects even Christians subjects provided thatthe leaders do not violate natural law. This view was inspired byThomas Aquinas: Temporal rule emanates from nature and thedictates of nature are universal. Vitoria said that natives rights

over their properties could not be usurped. This view of Vitoriaclashed with the Alexandrian Declaration. Vitoria argued that thepope only has dominion over Christian or Catholics and thuscannot use the bulls to legitimize rule over non Christianareas/people.

The Manila Synod of 1582First phase of Spanish occupation was notable for harsh

treatment inflicted by soldiers and colonial officials. The mostserious abuses were caused by encomenderos. Spaniardswould provoke incidents and thus provide themselves with an

excuse for making a just war. Second phase was heralded bythe arrival of the first Bishop of Manila, Domingo de Salazar.

In 1582, an ecclesiastical synod was convened inManila to address the problem of tribute collection of theencomenderos and to formulate a novel theory upon which Spainwould stake its legal claim to sovereignty over the archipelago.The synod said that the claim can be justified by arguing thatproviding military protection of converts against their paganneighbours is needed. Also the synod also justified Spanishoccupation by claiming that Filipinos are culturally inferior, andthe Spaniards are there to give Filipinos Civilization andChristianity. Through baptism, the natives were deemed tobecome subjects of the popes spiritual sovereignty whileremaining subjects of their own local leaders. But the crown isable to promulgate rules to protect the rights of spiritual rights ofnative Christians.

Sovereignty and ConsentPhilip decreed on February 8, 1597 that the consent of

the natives to Castilian sovereignty should be secured. So thefirst plebiscite in the archipelago was held. According to Spanishaccounts, the result was overwhelmingly favourable. Nativecollaborators voluntarily and solemnly chose the king as theirsovereign and natural lord. But the plebiscite participants ofcourse did not speak for everyone. There are still a lot ofinhabitants in the archipelago not reached by the Spaniards. Onlythe coastal populations of Luzon and the Visayas had beenChristianized. The rugged terrain plays a role in this isolation.Other areas of the Philippines was subjugated through the use o

force such as steam powered gunboats and other vastly superiorweapons. But Igorot resistance proved to be frustrating to theSpaniards. Spain technically never acquired full sovereignty overthe entire archipelago. Regions inhabited by unconsentingpeoples retained their sovereign rights.

Spanish Sovereignty and International LawAt the time Spain ceded its Philippine rights to the

United States in 1898 the prevailing international theory was thatan area inhabited by people not permanently united for politicalaction was deemed territorium nullius (empty territory). But thiswas an ambiguous term which could mean lands totally vacant opeople or merely not inhabited by peoples possessing thosereligions and customs that Europeans recognized as equal totheir own.

In actuality, the Philippines was not an empty territorybecause local governments such as barangays and sultanates inMindanao is already existing. But when Spain ceded thearchipelago, there was never any need to invoke these theories.The Spanish was just assumed to be valid. Thus, the US doesnot need to prove that Philippines was then territorium nullius.The U.S. Relied on the international character of the cession andclaimed sovereignty over the entire archipelago, including theterritories which fell under the jurisdiction of Muslim sultans andprincipalities.

In December 1902, Pope Leo XII promulgated theapostolic constitution Quae Mari Sinico. The Constitutionterminated any remaining privileges still enjoyed by the Spanishfriars who remained in the colony after 1898. It also rescinded th


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Declaration of Alexander and thereby formally extinguished thelast legal remnant of Spanish sovereignty in the Philippines.

Part Five

The Spanish Era Colonial Government

Chapter 2: Madrid and Manila SecularSpanish Participants

Owen Lynch

An Insular Overview- Instead of focusing on colonizing the Philippine Islands,

greater priority for Spain was to ward off other potentialEuropean predators and make money from the galleon trade,the land, and the labor of the natives.

- (Note: Why was Philippine Colonialism peripheral to Spain?Its far.)

- During the Spanish regime, the number of full-bloodedSpaniards never reached that many. In 1604, there were1,200 and by 1842, the count reached only 1,500 plus 3,500insulares (pure-blooded Spaniards born in the Philippines).Most Spaniards lived in Manila except for priests.

- This made the Spaniards rely on indigenous institutions andleaders. Since there were few Spanish personnel, the legal

impact (right to determine and enforce substantive policies) ofthe Spaniards on the native communities was muted.However, the Spaniards collected tributu(taxes mostly paidin kind) from the natives, Chinese, and Chinese mestizos.Though they also collected duties on exports and imports,anchorage fees, government monopolies and soldgovernment properties, the regime was subsidized by asituado(allowance) from the viceroyalty of New Spain(Mexico).

- After the British occupation in Manila, Madrid appreciated thePhilippines arable land resources more which led to the risein monocropping and production for export. Also, there wasshorter travel time and lower transportation costs betweenEurope and the Pacific after the opening of the Suez Canal in1869.

Castilian/ Spanish Monarchy- Four objectives of the Spanish Crown for the Philippine

colony:a. to break the Portugese spice trade monopoly;b. to establish and maintain direct contacts with China

and Japan;c. to take advantage of the economic

possibilities/benefits inherent in every colonization;d. to Christianize the inhabitants of the archipelago.

- An elaborate system of laws was made which were designedto protect the natives from injustices by the Spanish citizensand to enhance the colonys self-sufficiency and eventualprofitability.

- Charles Cunninghams 1919 legal history entitled TheAudiencia in the Spanish Colonies as Illustrated by theAudiencia of Manila said that the colonial legal machinerywas impressive because of its failure to effect deliberatelythe division of powers.

- 1sttwo centuries promote agribusiness or resource-

extraction endeavours- Bourbon monarchy in 1700 redefine culture as that which

leads to happiness here and now, and place economicdevelopment on a scientific basis expansion ofmonocropping and an intensified competition for arableresources.

- Political developments were felt in Manila so some formallyeducated native elites awoke from their state of

contemplative acquiescence in which up to that time theyhad accepted the established system, and which until thenhad appeared to be eternal and immutable.

Council of the Indies/ Overseas Ministry- Established in 1542- Undifferentiated executive, legislative, and judicial powers- Fourteen high-level officials and a large number of

functionaries (political conduits)- Until 1812, internally contradictory legal framework with

official positions, courts, central and municipal governments

and other government institutions created for the colony.- Until Mexican independence in 1820, the Philippines was

treated as a Mexican province - autonomous branch of theviceroyalty of New Spain (Mexico). However, laws enacted inMadrid in response to developments in Mexico had little todo with the Philippines. This led to an impairment oflegislative responsibility in the colony which retarded anddiscouraged the progress of the government and gave thecolonial laws the effect of detachment from the actualconditions they were meant to remedy.

- Abolished in 1812- In 1863, the Ministerio de Ultramar (Overseas Ministry)

assumed primary jurisdiction and had the power to removeand appoint all important officials in the colony. The ministerwas assisted by the Consejo de Filipinas (Council of thePhilippines) which was created in 1870. Membership in thecouncil was limited to individuals who had served in thePhilippines at least two years in a senior administrativecapacity.

- The first codification of colonial laws promulgated by theCrown and the crown was completed in Mexico during 1545and given royal sanction in 1548.

- 1stmajore, empire-wide codification of the Laws of the

Indies, El Recopilacion de Leyes de los Reynos de losIndios, approved in May 18, 1680, published in 1756, 1774,1791, and 1841, made to regulate the various colonialregimes in Spains vast empire but it had manycontradictions.

- Additional laws in Siete Partidas, a 13thcentury compilation

made under the orders of King Alphonso X of Castile.

Governors/ Captains-General- Due to the distance from Madrid and the usual two year

length of time needed to communicate, colonial officials hada greater degree of discretion and autonomy than expresslyprovided for so the office was easily exploited.

- The Philippine office of the Governor/Captain-General wascreated in 1567. Official title was Governor, Captain-Generaand President of the Royal Audiencia until 1861. In 1874,title became Governor-General. He is the personalrepresentative of the Crown. His direct superior was theviceroy of New Spain (Mexico). He could consult with theviceroy which was good since the viceroy was incharge ofthe annual subsidy (situado). Despite the supervisory and

financial leverage, the Philippine colony was largelyindependent of the viceroy.

- The selection of the governor was made personally by theking from a list of names submitted by the Council of theIndies. Mostly military men with no Philippine experience soas not to allow them to develop close intimacies andpersonal relationships.

- Edward Bourne in his historical introduction to Blair andRobertsons compilation, said that the colony constituted akingdom which was placed under the charge of a governorand captain-general whose powers were truly royal andlimited only by the check imposed by the SC (the Audiencia)and by the ordeal of the residencia.


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- The governor was responsible for: (1) civilian administrationincluding appointment of local officials not assigned byMadrid; (2) collecting revenues, establishing governmentmonopolies, and nominating encomenderos; (3) vicepatronof the church with the right to select people for ecclesiasticalpositions below that of the bishop; (4) captain-general andchief of the Army and Navy with legal right to invoke armedmight against those who challenged or resisted the colonialregime; (5) can suspend the effectivity of laws from Madrid(power of cumplase I obey but t do not follow. Hard toappeal to the king due to the lengthy delays.); (6) right to

allot boletas or tickets which entitled cargo space on theAcapulco-bound galleon; (7) president of the audiencia withthe power to control the actual function of the colonyshighest judicial body and the authority to determine thejudicial, governmental, military, or ecclesiastical character ofa particular dispute and then assign it to the proper tribunalor department so he was the supreme arbiter

- The residencia is a judicial examination or trial at the end ofan officials term of office which serves as a primary restraintagainst abuse but he designated judges and participated inthe meeting. Any governor threatened by a potentiallynegative report knew that he would have to use a certainpercentage of his profits to bribe his way out of the colony.

Real Audiencia of Manila/ Oideres- Audiencias were established as a means to relieve colonial

governors of judicial duties and thereby check their allegedexcesses.

- Established on May 5, 1583- Governor was president. Four other oideres (member of the

tribunal who investigated and decided the outcome ofdisputes and performed other judicial and administrativefunctions.)

- They were referred to as fiscal, prosecuting on behalf of theCrown and defending its interests in all cases tried beforethe audiencia, obliged to serve as el protector de losIndios.

- It could promulgate real acuerdos of royal resolutions,referred to as decrees and regarded as authoritative

domestic legislation which was compiled and referred to asthe autos acordados/ judicial agreements.- Charged (1) to always take great care to be informed of the

crimes and abuses which are committed against the Indians;(2) to monitor provincial bureaucrats so that they will not beremiss in their duties appoints visitador sent on aninspection tour of various local governments.

- The audiencia tended to regard their appointments(visitador) as commissions to engage in profitable venturesand business undertakings.

- The only effective limitation on the governors power was thelegal requirement that there should always be at least oneoider of royal appointment.

- A royal cedula on January 30, 1855 established uniformrules and procedures.

- In 1861, it was divested of its executive and administrativefunctions and became simply the supreme court of thearchipelago.

- On January 5, 1981, an organic law of judicial power in thecolonies beyond the sea was made.

The Philippine Bureaucracy- Official appointments, and the right to any emolument were

considered as grants of royal favour or mercedes, sold to thehighest bidder so the position was viewed as a privateinvestment

- 1784 Intendencia de Ejerto (Intendancy of the Army) and theSuperintendencia de Hacienda (Superintendant of Finance)

financial management was removed from governor toindependent government organization.

- Confusion of functions and duplication of administrativepowers.

- Civil registry offices were set up in each municipalitypursuant to Royal Order No. 250 of December 3, 1861.

- Roman Catholic Church in the Philippines was officiallyintegrated in 1861 as a component of the Department ofGrace and Justice.

- CFIs were created in 1860 and local justice of the peacecourts were made in 189

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