Professional Documents
Culture Documents
History Defined
History is a study of past events or an established record.2 The study of history has
oftentimes been overlooked by so many people, associated with the dusty pages of a book, that
seems to immortalize long lost events and dead or dying people; listening to boring and pedant
teachers and be in a challenging disposition of training once tolerance for what most of the youth
think, as an insignificant subject. For many, the word history gives out the sleepy aura that causes
the passively aggressive phrases such as who cares?, so what?, I dont care. However, one
should remember that as students of law it is vital and important to study history, as a factual
document, as a source of reference and of influence. One may have heard of the famous and
overused quotes that say History has a tendency to repeat itself, given this statistically accurate
idea it would be useful and of ones advantage to know, be versed and to learn from history, and
hopefully prevent things to happen or be confidently ready for what might happen again.
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The historical school of thought examines the manner of growth of a legal system. Historical
jurists tend to regard custom as the foundation upon which the law was originally based. 4 It was
developed in the late nineteenth century as an alternative to the neoclassical economic theory and
policy. It was most prominent in Germany and is usually called the German Historical School.
However, there were representatives of this way of thinking elsewhere, most notably in Britain and
the United States.5
The historical school of jurists was founded by Friedrich Karl von Savigny (17791861), a
German jurisprudent and legal historian who published his great work entitled The Vocation of Our
Times for Legislation and Jurisprudence in 1814.6 Its central idea was that a nation's customary law
is its truly living law and that the task of jurisprudence is to uncover this law and describe in
historical studies its social provenience. As in other schools of thought, acceptance of this approach
did not necessarily mean agreement on its theoretical or practical consequences.
For the historical jurists, the problem of the nature of the law cannot be understood properly
without reference to, or appreciation of, these historic-social conditions in which it has grown. For
them, the law could not have thrived except in this environment.
Von Savigny called custom the real producer of sound law. Law, according to him, is a
spontaneous emanation from the life and spirit of a people.7
The historical school introduced the philosophy of the Folk-Soul to the concept of the nature
of law. The law thus constitutes the soul or spirit of the people which permeates the members of the
community in common. This folk soul or folk spirit is called the volksgeist. To put the same thing in
another way, the historical school regards law in direct relationship with the life or national
4
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development of the people. Having achieved a language, the people began to articulate itself by
means of opinions, beliefs, longings, usages, traditions, idiosyncrasies, arts, customs, and even
superstitions. This mass of oblutiacs constitutes the traditional sources of the jural substance or
materials of the people. In the course of time, these oblutiacs were expressed in laws, rules and
regulations. As what Justice Cardozo of the Supreme Court of the United States said: History built
up the system and the law that went with it. In the study of nature of the law, historical
jurisprudence has applied the concept of the foul-soul or diwa of a people. The volksgeist or diwa of
a people provides a means to fathom the legal history or evolution of the law of the people.
Historical evolution serves well as a guide to legal thought but has been subject to many arguments.
The historical doctrine of the nature of the law is also valuable and significant to policy planners and
government functionaries. They may draw on the volksgeist or diwa of the people for legal precepts
and legal standards as well as positive rules of conduct.8
To followers of Savigny, the identification of law with custom and tradition and
the volksgeist, or genius peculiar to a nation or folk, generally meant a rejection of rationalism and
natural law; a rejection of the notion of law as the command of the state or sovereign, and therefore a
disparagement of legislation and codification; and a denial of the possibility of universally valid
rights and duties and of the individual's possession of non-derivable and inalienable rights. In
positive terms, historical jurisprudence identified law with the consciousness, or spirit, of a specific
people. Law is found by the jurist and not made by the state or its organs. Law is a national or
folk and not a political phenomenon; it is a social and not an individual production; like language, it
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cannot be abstracted from a particular people and its genius; it is a historical necessity and not an
expression of will or reason, and therefore it cannot be transplanted.9
In addition to Savigny, the historical school was probably influenced by Johann Gottfried
Herder (17441803) and the romantic notions of folk culture, by the emphasis on tradition in the
work of Edmund Burke (17291797), by the stress on historical continuity in the work of Gustav
Hugo (17641844), and by the Hegelian conception of Spirit. In Germany, the main proponents of
historical jurisprudence were G. F. Puchta, Karl Friedrich Eichhorn, Rudolph von Sohm, and Otto
von Gierke.
In England, the words of Sir Henry Sumner Maine, the acknowledged leader of the historical
jurisprudence in England, the law is the product of the huge mass of opinions, beliefs, superstitions,
and prejudices of a people produced by institutions of human nature reacting one upon another.10
Henry Maine (18221888) was closely identified with the historical school, although there is
no evidence that he was directly influenced by the German thinkers. 11 Modern historical
jurisprudence in England was born with the publication in London of Maine's Ancient Law in 1861,
the year of Savigny's death. Until then historical research in law had been neglected, but from that
time on, the field was assiduously cultivated. In reaction against natural law and under the influence
of Thomas Hobbes, the tendency in England had been to regard law as the command of the state, and
the task of the jurist was conceived as a concern with the analysis of positive law without regard to
historical or ethical considerations. Maine broke with these traditional attitudes. Probably influenced
by Rudolf von Ihering,12 Maine was stimulated to apply the historical method to jurisprudence.
Friedrich, C. J. The Philosophy of Law in Historical Perspective, 2nd ed. Chicago: University of Chicago Press, 1963.
Ch. 15.
10
Supra, note 4.
11
Supra, note 5.
12
Der Geist des rmischen Recht, 3 vols., Leipzig, 18521865.
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Charles Darwin's Origin of Species, published two years before Ancient Law, also probably
influenced Maine.
Maine rejected the natural law, rationalistic, and a priori approaches to the nature of law. In
his Early History of Institutions (London, 1875) he saw a people's law as compounded of opinions,
beliefs, and superstitions produced by institutions and human nature as they affected one another.
Indeed, English common law seemed better to exemplify Savigny's views than did the law of
Germany, which drew heavily on Roman law. But as an Englishman, Maine saw in law more than a
people's customs; he observed and took into account the creative and reforming work of Parliament,
and so he was led to recognize legislation as an instrument of legal growth. And he found that equity
and legal fictions played creative roles in the common law. In these respects he departed radically
from Savigny's monistic approach to law and its sources.13
Maine's comparative historical studies, which took into account diverse legal systems, kept
him from a belief in the mystical uniqueness of a people and its genius and its law; he observed
uniformities as well as differences in different legal orders, and so he was led to suggest that similar
stages of social development may be correlated with similar stages of legal development in different
nations. Maine differed from Savigny also in believing that custom might historically follow an act
of judgment, so that the jurist could be seen to have had a creative role in making the law, even
though he claimed only to have found it. Maine also noted the part played in early societies by the
codification of customary law. In revealing the ideals operative in a society at a particular stage of its
development and in relating them to social conditions, Maine stimulated the development of the use
of the sociological method in jurisprudence. It thus became apparent that just as law cannot be
divorced from history, so, too, it cannot be divorced from philosophy and sociology. Thus, if
Savigny's historical jurisprudence was mainly conservative in import, Maine's work had a
13
Allen, C. K. Law in the Making, 7th ed. Oxford: Clarendon Press, 1964.
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predominantly liberalizing effect. Then too, Maine's work influenced the development of
comparative legal studies.14
Other English scholars associated in varying degree with the historical school of
jurisprudence are James Bryce (18381922), Frederic W. Maitland (18501906), Frederick Pollock
(18451937), and Paul Vinogradoff (18541925). Positivists and naturalists tend to converge in the
area of historical jurisprudence. Historical jurisprudence is marked by judges who consider history,
tradition, and custom when deciding a legal dispute. Strictly speaking, history does not completely
fall within the definition of either positivism or natural law.15 Historical events, like the Civil War,
are not legislative enactments, although they may be the product of governmental policy. Nor do
historical events embody eternal principles of morality, although they may be the product of clashing
moral views. Yet, historical events shape both morality and law. Thus, many positivists and
naturalists find a place for historical jurisprudence in their legal philosophy.
Perhaps the greatness of historical jurisprudence lay in the fact that it provided its own seed
of dissolution; for once it is admitted that law is historically conditioned, it is as impossible to limit
the conception of law to a Volksgeist as to the commands of the sovereign; all forms of social control
and all sources of law emerge as subjects for legitimate consideration and study. 16
14
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POSITIVIST SCHOOL
The Positivist School is a school of jurisprudence whose advocates believe that the only
legitimate sources of law are those written rules, regulations, and principles that have been expressly
enacted, adopted, or recognized by a government body, including administrative, executive,
legislative, and judicial bodies. The Positivist School of Thought sharply separates law and morality.
It is often contrasted with natural law, which is based on the belief that all written laws must follow
universal principles of morality, religion, and justice. Positivists concede that ethical theories of
morality, religion, and justice may include aspirational principles of human conduct. Positivists
however argue that such theories differ from law in that they are unenforceable and therefore should
play no role in the interpretation and application of legislation. Thus, positivists conclude that as
long as a written law has been duly enacted by a branch of government, it must be deemed valid and
binding, regardless of whether it offends anyone's sense of right and wrong. 17
Law as it is that is the positive law which set or posited or given its position by human
authority hence, Legal Positivism. Perception to objectivity that is consciously made or uttered
within the bounds of the different branches of the government; legally authoritative & commanding.
Law to totality of jural rules or principles consciously set by political superiors to political subjects
and enforced by sanctions is the clear catch of what positivism is.
The earliest codified Roman laws were the Jus Civilis, 18which were applicable to Roman
citizens, and the Jus Gentium or the law of nations19, which was applicable to the legal relations of
Roman citizens with aliens ("perigrino") 20 both of which were administered by a "praetor" or a
17
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judge. Emperor Justinian's greatest contribution to the growth of the legal system of the world was
his codification of all Roman laws.
The Romans made law systematic, as in the areas of family, persons, contracts, slavery, etc.
During the Reformation Period, the world saw the rise of Protestant philosophers. Today (modern
period), the world saw the rise of the sociological school, the functional school, and the school of
modern legal realism.21 The Romans indeed had set the tune for the Positivists School of Thought
that Laws are made by the Government and promulgated by them regardless of how rough or lenient
it is.
Yet, the foremost proponents of the Positivist school of thought are John Austin, Hans
Kelsen and Thomas Hobbes. Dura lex, sed lex (The Law may be harsh but it is the Law) 22 expresses
the meat of the positivist school of law. This school of thought developed at Yale, Oxford, and
Cambridge, believes that there is no law unless it is promulgated by the State. Law is written down
and explicit.
Thomas Hobbes
The English philosopher Thomas Hobbes (1588-1679) is best known for his political
thought, and deservedly so. His vision of the world is strikingly original and still relevant to
contemporary politics. His main concern is the problem of social and political order: how human
beings can live together in peace and avoid the danger and fear of civil conflict. He poses stark
alternatives: we should give our obedience to an unaccountable sovereign (a person or group
empowered to decide every social and political issue). Otherwise what awaits us is a state of
21
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nature that closely resembles civil war a situation of universal insecurity, where all have reason to
fear violent death and where rewarding human cooperation is all but impossible.
One controversy has dominated interpretations of Hobbes. Does he see human beings as
purely self-interested or egoistic? Several passages support such a reading, leading some to think
that his political conclusions can be avoided if we adopt a more realistic picture of human nature.
However, most scholars now accept that Hobbes himself had a much more complex view of human
motivation. A major theme below will be why the problems he poses cannot be avoided simply by
taking a less selfish view of human nature.
In his pure theory of law, the focus is on "the law as it is", not on what it ought to be. Law is
objective and precise, not subjective. We should give our obedience to an unaccountable sovereign
(a person or group empowered to decide every social and political issue). Otherwise what awaits us
is a state of nature that closely resembles civil war a situation of universal insecurity, where all
have reason to fear violent death and where rewarding human cooperation is all but impossible.
He makes very strong claims about the proper relation between religion and politics, serious
in insisting that theological disputes should be kept out of politics. The sovereign should determine
the proper forms of religious worship, and citizens never have duties to God that override their duty
to obey political authority. His against scholasticism shapes the presentation of Hobbess own ideas.
He insists that terms be clearly defined and relate to actual concrete experiences.
Most important view: to avoid any metaphysical categories that dont relate to physical
realities. Hobbess often mechanical sounding definitions of human nature and human behaviour are
actually important in shaping his moral and political ideas.23
23
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John Austin
John Austin (March 3, 1790 - December 1, 1859) was a noted British jurist and published
books extensively concerning the philosophy of law and jurisprudence. Austin served with the
British Army in Sicily and Malta, but sold his officer's commission to study law. He became a
member of the Barduring 1818. He discontinued his law practice soon after, devoted himself to the
study of law as a science, and became Professor of Jurisprudence in the University of
London (now University College London) 1826-32. Thereafter he served on various Royal
Commissions. His publications had a profound influence on English jurisprudence. They
include The Province of Jurisprudence Determined (1832), and Lectures on Jurisprudence. On
August 24, 1819, Austin married Sarah Taylor, who also became an author, at St. George Colegate,
Norwich.24
The three basic points of Austin's theory of law are that:
John Austin is best known for his work developing the theory of legal positivism. He
attempted to clearly separate moral rules from "positive law." Austin was greatly influenced in
his utilitarian approach to law by Jeremy Bentham.
Austin took a positivist approach to jurisprudence. He viewed the law as commands from a
sovereign that are backed by a threat of sanction. In determining 'a sovereign', Austin recognized it
as one who society obeys habitually. However, Henry Maine in "Early Institutions" proved that in
some Empires of the orient there is nothing to correspond with "determinate superior" or sovereign.
24
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The Theory of Legal Positivism, for Austin is the whole conception of legal philosophy
which involves repudiation of natural law theory. Involve the attempt to apply the moral theory of
utilitarianism to legal issues. Contributions which he is most famous are area of analytical
jurisprudence, theory of the nature of law itself, and analysis of the concept of law. He advocated the
separation of law and morals.
Austins theory can also be called as the command theory of law because
What is command?
Signification of desire
Law is objective, authoritative, commanding, and empirical. It is the expression of the will of
the state. Natural law and moral law do not matter. Law is not a moral concept. It must be free from
metaphysical speculation. It is not made by God but by a superior sovereign. 25
Law is the conscious will and command of the sovereign imposed on the subjects, who are
liable to suffer penalties in case of violation thereof (authoritative enforcement system). 26
Most important view: to avoid any metaphysical categories that dont relate to physical
realities. Hobbess often mechanical sounding definitions of human nature and human.
Hans Kelsen
Hans Kelsen (Oct. 11, 1881, Prague, Bohemia, Austria-Hungary [now in Czech Republic]
April 20, 1973, Berkeley, Calif., U.S.) an Austrian-American legal philosopher, teacher, jurist, and
25
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writer on international law, who formulated a kind of positivism known as the pure theory of law
and has been regarded as one of the most important legal scholars of the 20th century.
According to Kelsen, Law is created by acts of men, not by God. For law to be stable, it must
be based on empirical science, not metaphysics. Law may be prescriptive, authoritative, permissive,
or normative. Law is a positive norm of conduct; hence, it is uniform for all. Coercion and sanctions
enforce law. In his "pure theory of law," Kelsen argued the removal of moral connotations and value
judgments from law, i.e. of all non-legal elements. In his pure theory of law, the focus is on "the law
as it is", not on what it ought to be. Law is objective and precise, not subjective. 27
In Kelsen's pure theory of the law is fairly abstract. Its objective: is knowledge of that which
is essential to law; therefore, the theory does not deal with that which is changing and accidental,
such as ideals of justice. Kelsen believed that law is a science that deals not with the actual events of
the world (what is) but with norms (what ought to be). The legal relation contains the threat of a
sanction from an authority in response to a certain act. The legal norm is a relation of condition and
consequence: if a certain act is done, a certain consequence ought to follow. 28
In this theory a legal system is made of a hierarchy of norms. Each norm is derived from its
superior norm. The ultimate norm from which every legal norm deduces its validity is
the Grundnorm, the highest basic norm. The Grundnorm is not deduced from anything else but is
assumed as an initial hypothesis. A norm is a valid legal norm only because it has been created
according to a definite rule.
The theory is independent of morality. It does not matter which particular Grundnorm is
adopted by a legal order. All that matters is that this basic norm has a minimum effectiveness: it
27
28
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must command a certain amount of obedience, since the effectiveness of the total legal order is
necessary for the validity of its norms. 29
29
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30
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for punishment to be distributed to an individual based on the action undertaken. Thus, every deed
committed with the intention of being so done implies a moral accountability within the human
responsible. This model of thought is of immense help to understanding what actions Kant saw as
necessary for the creation of justice within the real world, since, once again, every individual's
worldview is based upon that individual's own set of experiences. Thus, any judgment by one
individual of another's set of "data" will be subjective and skewed, which perverts any prospect for
objective justice. That is, unless an objective framework such as one of "God, freedom, immortality"
is used to evaluate a deed and not the person responsible, while properly rewarding or punishing the
latter.31
To Kant, man is a moral individual. He is not a chattel. Moral rightness is a matter of
"motives" and legal rightness refers to "external acts." In his Metaphysics of Ethics, Kant wrote,
"Every action is right which in itself, or in the maxim on which it proceeds, is such that it can coexist with the freedom of the will of each and all, according to a universal law." Kant believed that
human rights are not an indenture but are rather intrinsic in man. In a sense, Kant states that law is
based on reason for the common good; that law is universal; and that natural law is inherent in the
heart of men.
31
Immanuel Kant's View of Rational Free Will and Its Implications for Criminal Justice
http://voices.yahoo.com/immanuel-kants-view-rational-free-will-its-436573.html. Retrieved September 23, 2012.
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FUNCTIONAL SCHOOL
Functional School is divulged on the sociological aspect of the community as a whole,
specifically on the operations and effects with regards to the sole interests of society. The core
argument of this school of thought is the common good or the greatest good for the greatest number
or popularly known as social utilitarianism. Functional school also contends that social welfare
should govern especially in setting up group functions. As a result, it would lead the community to
attaining social solidarity or cohesion.
Functional Jurisprudence reckons law as a highly specialized or coercive form of social
control, that law is carried on in accordance with a body of authoritative precepts, and law is applied
in a judicial and an administrative process. There were actually two philosophers behind this school
of thought, Charles Louis de Montesquieu (1689-1755) and Dean Roscoe Pound (1870-1964).
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different concepts of legal system may be traced by the influence brought by the huge governmental
change in his times. He died on February 10, 1755 at the age of 66.
Montesquieus concept of Separation of Powers can be traced back to his discovery on the
three forms of government: Monarchy, Republican, and Despotism. He described monarchy as a
free-form government lead by hereditary figures such as kings and emperors which relies on the
principles on the principles of honor. A republican government is also a free-form government
headed by popularly elected officials which relies on the principle of virtue. Despotism is different
from the latter two in a way that it is an enslaved government headed by a dictator which relies on
the principle of fear. Montesquieus concept of Separation of Powers can be evident in a republican
state, wherein the source of powers lies on the common people and the administrative bodies. The
people, as the sovereign of the state, by election, surrender a part of their sovereignty to a body of
administrative officials which is divided into three branches: legislative, executive, and judiciary
who in turn represent them for the better.32 The legislative branch of the government under a
republican state is responsible on passing laws.33 The judicial branch interprets the law passed by the
legislative branch while the executive branch of the government implements the law. According to
Montesquieu these should be separate from and dependent upon each other so that the influence of
any one power would not be able to exceed that of the other two, either singly or in combination.
As of the 20th century there more or less 76 republican states around the globe including Cuba,
Panama, Portugal, Finland, Russian Republic, Estonia, Georgia, Nigeria, Somalia, South Africa,
Singapore, Sri Lanka, Afghanistan, Third Hellenic Republic, Laos, Zimbabwe, Samoa, and Nepal.
The Philippines is an example of a republican and democratic state by which the government is
32
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divided into three branches while the sovereignty resides in the people. It enjoys the blessing of
democracy by virtue of its constitution34 Section 5, Article II which states that the maintenance of
peace and order, the protection of life, liberty, and property, and promotion of the general welfare
are essential for the enjoyment by all the people of the blessings of democracy.
Montesquieu suggests two ways on how to look at the law. First, Law is a living thing; its
development is interrelated with the social environment in which it grows. Second, Law is an
evolutionary process.
34
Chan Robles Virtual Law Library, Declaration of Principles and State Policies
http://www.chanrobles.com/article2.htm. Retrieved September 23, 2012.
35
Laserna, M. (1998), The Historical School of Legal Philosophy: Its relevance to the Philippines
http://attylaserna.blogspot.com/2007/10/legal-philosophy-historical-school.html. Retrieved September 23, 2012.
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Pound expounded on the thought of the Theory of Social Interest. Under this theory, he
defined interest as a demand, desire, or an expectation which human beings either individually or as
a group seek to achieve. He then categorized interest into three; Individual Interest, Public Interest,
Social Interest. Individual Interest is defined as claims, demands, desires, and expectations that are
purely individualistic nature. Individual interest of personality, for instance, or in domestic relations,
honor, reputation, privacy, belief, opinion, etc. Public Interest on the other hand are those claims,
demands, or desires asserted by individuals involved in or looked at from the standpoint of political
life, particularly life in politically organized society. Moreover, Social Interest is defined as claims,
demands, or desires thought of in terms of social life and generalized as claims of the social group.
The Social Interest Theory or Theory of Interests contends that the law must in any way determine
between conflicting sets of interests. And if in determining it so happens that it does not produce
justice is but unimportant, because the law, essentially, must keep the society intact, thus making it
possible for the people to live in harmony. According to Pound, rights arise, but interests do not
always result in rights. Therefore, there should always reconciliation and adjustment between the
interests of individuals.36
Pound also emphasized on the Social Engineering. This Social Engineering is a process of
balancing or compromising the conflicting interest as aforementioned. He viewed lawyers as the
social engineers who would build a structure of society in such a way as to establish the satisfaction
of the maximum of wants while having the minimum of friction and/or waste. However, if
compromise fails the tools of arbitration, judicial action, purposive legislation, and decisive
executive action must facilitate the society. 37
36
Laserna, M. (1998), The Historical School of Legal Philosophy: Its relevance to the Philippines
http://attylaserna.blogspot.com/2007/10/legal-philosophy-historical-school.html. Retrieved September 23, 2012.
37
Ibid.
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38
39
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40
William M. Wiecek, Liberty Under Law: The Supreme Court in American Life (Baltimore: John Hopkins Univ. Press
1988) 187.
41
Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93
Cornell L. Rev. (2007) 1,2.
42
Virginia A. Hettinger, Stephanie A. Lindquist, & Wendy L. Martinek, Judging on a Collegial Court (Charlottesville,
Va.: Univ. Virginia Press 2006) 30.
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43
William M. Wiecek, Liberty Under Law: The Supreme Court in American Life (Baltimore: John Hopkins Univ. Press
1988) 187.
44
Frank, Law and the Modern Mind
45
Joseph Bingham, What is Law? 11 Mich. L. Rev. 109,113n.32 (1912).
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A 1918 article in the California Law Review, Psychological Study of Judicial Decisions,
stated that every judicial opinion necessarily is the justification of the personal impulses of the
judge, in relation to the situation before him, and that the14 character of these impulses is
determined by the judges life-long series of previous experiences, with their resultant integration in
emotional tones.46 from the word realism itself, what realists earnestly believe and try to argue is
that judges do not mindlessly make expert decisions and court rulings, these judges were once
children playing around with friends, who once had childhood dreams, who have families whom
they love, judges have fears too, they may have strengths and as well as weaknesses, they have
certain values, inherent beliefs and most importantly these people we call judges and look up to,
behind the veil of professionalism and formality, are still fallible people, who, like us, are
susceptible to committing mistakes, capable of blunders and mishaps, in other words they have
emotions, and all of these characteristics of a typical human being, do affect and influence their legal
thinking and court judgments or rulings. Munroe Smith best described and defined this as a science
by saying This is done by the science that is in constant contact with the daily life of the street and
the market. It would perhaps be more accurate to call this the art rather than the science of law.47
Lastly, one of the aims of Legal Realists is to predict the decisions of judges, Our business
is prophecy,48 as Frederick Pollock an English jurisprudent also wrote The object of legal science
is likewise to predict events, the particular kind of events it seeks to predict are the decisions of
courts of justice.49 The bias and peculiar views of the individual judge do certainly exert a
considerable influence over the development of the law. The opinion of the court, in which the
reasons for its judgment is set forth, is a most valuable guide to a knowledge of law on a given
46
Theodore Schroeder, The Psychologic Study of Judicial Decisions, 6 Cal. L. Rev. 89, 93 (1918).
Munroe Smith, State Statute and Common Law, 2 Pol. Sci. Q. 105,121 (1887)
48
Max Radin, the Theory of Judicial Decisions: Or How Judges think, 11A.B.A.J. 357,362 (1925).
49
Frederick Pollock, The Science of Case Law, reprinted in Frederick Pollock, Jurisprudence and Legal Essays (NY:
St. Martins Press 1961) 170.
47
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proposition, but we cannot obtain a reliable conception of the effect of the decision by merely
reading the opinion. This thorough knowledge is to be acquired only by studying the social and
political environment of the parties and the subject matter of the suit, the present temper of public
opinion and the scope and character of the popular demands, as they bear upon the particular
question at issue.50 Realists suggest that by studying the flow and mood of a judges decisions, an
attorney can predict an outcome of a case.
50
Christopher G. Tiedeman, The Doctrine of Stare Decisis, 3 University L. Rev. 11,19-20 (1896)(emphasis added). Not
surprisingly, given these views, Tiedeman was viewed at the time as something of a skeptic of judging. See Alan H.
Monroe, The Supreme Court and the Constitution, 18 American Pol. Sci. Rev. 737,745 (1924).
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The influence of Karl Marx to the intellectual realm is equal to the same way for explaining
his celebrity status. He was perhaps best known not only as a philosopher but also as a political
activist. The way he thought served as a voice for the masses and an opposition against the rich. He
lived during the Age of Industrialism, a period defined by remarkable technological and individual
innovations. He witnessed the society dramatically changing by comparing it to societies from
centuries ago. New tools and machines were gradually introduced from time to time.
Karl Marx began his road to utopia through human labor. This is an inescapable reality and
there is no other way that life has to be lived. Man has to exert great effort to generate material needs
essential for self-preservation. Each and every one of these people is compelled to work for the
bread that maintains man. As man labors, he transforms the world, civilizations expand, ideas are
shared, and life is dramatically changed. 51 Human presence has thoroughly maximized its presence
to the world. However, the radical transformation of the world does not always have the
consequences that everyone desires, the capitalist system and its laws may for some be indicators of
progress, but sentiments or personal concerns of some are often left implicit, especially an ordinary
man maintaining low or even middle status in the society. 52
51
McLellan 1973 and Wheen 1999 for biographies of Marx, and see Singer 2000 and Wolff 2002 for general
introductions.
52
Roemer, John, 1982, A General Theory of Exploitation and Class, Cambridge Ma.: Harvard University Press.
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The world we live in has scarce resources and men compete for survival, acquisition, and to
make sure these resources are favorable to them. Then, those who gain much becomes exalted as
deserving for the materials that he/she has after long years of schooling or hard work; thus forming
part of what Marx would term as bourgeoisie.53 On the other hand, those who gain less are in
constant struggle that live in the name of survival. They are heavily affected by economic crisis e.g.,
inflation rates, unemployment, etcetera forming part of the proletariats.54 The only way out of the
trap of being a proletariat is tom remake society via revolution into a more fraternity-like community
where everything else is shared, a socialist society. Remaking may be done peacefully or violently.
Marxism is a utopian type of idea. Nevertheless, it is an indubitable truth that there will
always be inequality; however, the idea is not totally isolated but it can be considered a call for the
improvement of the status quo of the poor. Revolution is not necessarily violent intending to go back
to the past and pattern ones living to the primitives. It is only a means to create change and alleviate
or narrow the disparity between the rich and the poor. The law is obliged or is the main instrument
not to remove but reduce this disparity--- such is the principle of social justice.
53
54
Wood, Allen, 1981, Karl Marx, London: Routledge; second edition, 2004.
Marx, Karl, Karl Marx: Selected Writings, 2nd edition, David McLellan (ed.), Oxford: Oxford University Press, 2000.
P a g e | 27
55
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common interest. Helping people make better decisions is the central objective of the policy
sciences, and the fundamental goal is to foster a commonwealth of human dignity for all. 58
In pursuit of this goal, the policy sciences draw on and contribute to all fields of knowledge.
The emphasis is on comprehending problems in context in order to develop recommendations that
are both realistic and desirable.
The policy science school of jurisprudence posits the view that the law can truly be an
instrument of global, regional and national control when it is committed to the complete
achievement to the social values that constitute the professed ends of democratic societies. This
means that the law is an advocacy of consistent, compatible and principled policies, legislation and
decisions on the basis of the social values.59
The School is also centered on the belief that those who study and practice international law
can make a difference in the world. World public order is not simply a function of state power, as
political realists would have it, but of human agency as well. If one takes the time to understand the
problems and to consider them carefully, one can "enhance the quality of both law and public
order.60
58
Ibid.
R. Rodriguez, Introduction to Law, 2001, p. 24.
60
Hathaway, Oona A., The Continuing Influence of the New Haven School (2007). Faculty Scholarship Series. Paper
834. http://digitalcommons.law.yale.edu/fss_papers/834. Retrieved September 23, 2012.
59
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61
A. P. d'Entrves. Natural Law: An Introduction to Legal Philosophy, Hutchinson University Press. 1951.
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animals is the third part of the soul. This part is strictly rational and is called the calculative part. It
allows humans to have intellectual virtues such as reason. 62
St. Thomas described natural law as the participation of man in eternal or divine law thru his
gift of reason. A law which is contrary to divine law is no law at all. A law is obeyed because of the
persuasion of reason (reasonableness test). St. Thomas adopted and Christianised the thoughts of
Aristotle, a great Greek philosopher. The precepts of natural law are inherent in man and are written
by God and reason in his heart, e.g. the quest for justice, dignity, compassion, freedom, truth, love,
equality, and peace. St. Thomas Aquinas confirmed that doing good and avoiding evil is the first rule
from which all others derive. He says that all the order of rules of natural law accords with natural
human inclinations to preserve human life, to reproduce, to educated offspring, to know the truth
about God, to live society, to shun ignorance, and to avoid offending others. 63 St. Thomas
philosophy of law is heavily influenced by the teachings and doctrines of the Roman Catholic
Church. St Thomas Aquinas contributed to jurisprudence through his teachings and belief that justice
and rights spring from natural law rather than human law. Aquinas is credited with having a major
influence on modern human rights theories on law. St. Thomas Aquinas has also drawn distinctions
among eternal law natural law and human law.
We believe that humans in their nature strive to perform good acts, and one of these good
acts is to form society for protection. If we were not born to do these things our original societies
would never have been formed. If these people in those societies were not good to one another these
cities would fall apart. We believe that all humans strive to find out their origins and try to better
62
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understand why we are and what our purpose is that we are to fulfil with our time on earth, but we
would not say it is a call to God though, but instead and understanding of why we are.
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Hegel's Dialectics
One of the earliest forms of employing the dialectical method was the Dialogues of Greek
philosopher Plato in which the author sought to study truth through discussion in the form of
questions and answers. The Greek philosopher, Aristotle, thought of dialectic as the search for the
64
Hegel: Lectures on the History of Philosophy, 18256, three volumes, ed. and trans. Robert F. Brown, Oxford: Oxford
University Press, 20069.
65
Lukcs, Georg, 1975, The Young Hegel, trans. R. Livingston, London: Merlin Press.
66
Hegel's Science of Logic, trans. A. V. Miller, London: Allen and Unwin, 1969.
67
"The Communist Manifesto". (6th ed.) Marx, K., Engels, F., Harvey, D., & Moore, S. (2008).
P a g e | 33
philosophic basis of science, and he frequently used the term as a synonym for the science of logic.
Hegel's aim was to set forth a philosophical system so comprehensive that it would encompass the
ideas of his predecessors and create a conceptual framework in terms of which both the past and
future could be philosophically understood.68 Such an aim would require nothing short of a full
account of reality itself. Thus, Hegel conceived the subject matter of philosophy to be reality as a
whole. This reality, or the total developmental process of everything that is, he referred to as the
Absolute, or Absolute Spirit.
According to Hegel, the task of philosophy is to chart the development of Absolute Spirit.
This involves (1) making clear the internal rational structure of the Absolute; (2) demonstrating the
manner in which the Absolute manifests itself in nature and human history; and (3) explicating the
teleological nature of the Absolute, that is, showing the end or purpose toward which the Absolute is
directed. Hegel, following the ancient Greek philosopher Parmenides, argued that "what is rational
is real and what is real is rational."69 This must be understood in terms of Hegel's further claim that
the Absolute must ultimately be regarded as pure Thought, or Spirit, or Mind, in the process of selfdevelopment. Traditionally, this dimension of Hegel's thought has been analyzed in terms of the
categories of thesis, antithesis, and synthesis.
Although Hegel tended to avoid these terms, they are helpful in understanding his concept of
the dialectic70. The thesis, then, might be an idea or a historical movement. Such an idea or
movement contains within itself incompleteness that gives rise to opposition, or an antithesis, a
68
Neuhouser, Frederick, 2000, Foundations of Hegel's Social Theory: Actualizing Freedom, Cambridge, Mass.: Harvard
University Press.
69
The Encyclopedia Logic: Part 1 of the Encyclopaedia of Philosophical Sciences, trans. T. F. Geraets, W. A. Suchting,
and H. S. Harris, Indianapolis: Hackett, 1991.
70
Phenomenology of Spirit, trans. A. V. Miller, Oxford: Oxford University Press, 1977.
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conflicting idea or movement.71 As a result of the conflict a third point of view arises, a synthesis,
which overcomes the conflict by reconciling at a higher level the truth contained in both the thesis
and antithesis. This synthesis becomes a new thesis that generates another antithesis, giving rise to a
new synthesis, and in such a fashion the process of intellectual or historical development is
continually generated.
Hegel believed that the evolution of ideas occurs through a dialectical process-that is, a
concept gives rise to its opposite, and as a result of this conflict, a new and third view, the synthesis,
arises. This synthesis is at a higher level of truth than the first two views 72. Hegel's work is based on
the idealistic concept of a universal mind that, through evolution, seeks to arrive at the highest level
of self-awareness and freedom. At Nuremberg Hegel worked on his 'Science of Logic', which was
published between 1812 and 1816. The success of this work brought him three offers of
professorships. He taught at Heidelberg for a time and then in 1818 went to the University of Berlin.
Hegelian Dialectics
The purpose of the dialectic method of reasoning is resolution of disagreement through
rational discussion, and, ultimately, the search for truth. One way to proceed the Socratic Method is
to show that a given hypothesis (with other admissions) leads to a contradiction; thus, forcing the
withdrawal of the hypothesis as a candidate for truth. Another dialectical resolution of disagreement
is by denying a presupposition of the contending thesis and antithesis; thereby, proceeding
to sublation (transcendence) to synthesis, a third thesis.73
71
Pippin, Robert B., 2008, Hegel's Practical Philosophy: Rational Agency as Ethical Life, Cambridge: Cambridge
University Press.
72
Hegel's Philosophy of Mind: Being Part Three of the Encyclopedia of Philosophical Sciences, trans. William Wallace,
Oxford: Clarendon Press, 1971.
73
Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H. B. Nisbet, Cambridge: Cambridge University
Press, 1991.
P a g e | 35
It is difficult to explain Hegels Dialectic thinking because it can only be seen in practice. It
is not a "method" or a set of principles, like Aristotle's, which can be simply stated and then applied
to whatever subject-matter one chooses.74
Hegelian Dialectics is summarized as it has two sides of a conflict namely proposition or
counterproposition or otherwise named theses and anti-theses (Thesis as proposition or proved; antithesis as the opposite of thesis or the conflict) and the final result of this is synthesis, which is then
put again into the rigorous cycle of thesis and anti-thesis.75 An example would be my idea is very
good and would be supported and then my idea would then give rise to a counter idea which is the
anti-thesis and though the two ideas will be in conflict there is a time when these two ideas would
give something fruitful or something greater than the two previous ideas and a result would be
synthesis. Synthesis is not a compromise of the two opposing ideas but a combination of the two
ideas.76
Since this Hegelian Dialectic would continue more thesis and anti-thesis would combine and
as Hegel states history would unfold and progress. Basically he has a point. Because through these
endless arguments there would be progress because one idea is not superior than the other. There
must be combination of thesis and anti-thesis for change or progress to take place. Dialectic is
basically a way of teaching people or leading them to a new change of behavior or acceptance of a
new social norm or construct.77
Hegel's dialectic is the tool which manipulates us into a frenzied circular pattern of thought
and action. Every time we fight for or defend against an ideology we are playing a role to the
74
P a g e | 36
advancement of society and the future. The synthetic Hegelian solution to all these conflicts can't be
introduced unless we all take a side that will advance the agenda.
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These precepts are but guiding principles that aim to develop and lead the purpose of the
laws of the land. Without these, the jural law of the land might be, and could be, an object of weak
sense of performance for the three divisions of the government.
On the other side of the coin, Non-Jural Law consists of four types of laws: Divine, Natural,
Moral and Physical. Divine law refers to the laws of religious faith which concerns itself with the
concepts such as sin, salvation, life, and death among others, and could also mean to the entire
system of rules perfected by God. It carries tremendous secular, social, economical and ethical
significance, hence its importance in the society. A concrete example is The Ten Commandments
which is considered with high regard in the Philippines, being a nation consisting of 90% Catholics,
which has secular, social, economical and ethical purposes.
The divine law may not be formulated by men but are universally recognized as right and
must be followed. Natural Law is stated as the universal discipline of virtue impressed in the heart
and mind of humans to guide them in the exercise of their rights, in the performance of their
obligations, in the observance of rules, and in the preservation of peace and unity. Moral laws are
moral norms that arose from the collective experiences of people in a society. Through trial and
error, people have come to form standards of what is socially acceptable and ethical or not. Moral
norms are positive and peremptory. They are not relative, advisory or customary because they are
not subject to passing desires. Because if they are, then some wrong would be considered right in
other areas. Moral law is different from Divine and Natural law because while Moral law is also
concerned with what is good and right, it is not necessarily concerned with religious faith because
some persons are not religious but still, they are moral and ethical.
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Physical law or Law of Nature, because of its imperativeness and regularity, are considered
not jural since norms found in the physical law can be worked out in mathematical equations. It is
always fixed and unbreakable.
We cannot deny the fact that all nations legal systems, including ours the Philippines,
consist of both jural and non-jural laws. Islamic countries (including some Muslim areas &
autonomous regions in the country) might be practicing law on sharia of which their jural law is
based and basically regulates their non-jural Divine law on Muslim principles, thereby exercising
both jural and non-jural at the same time by intertwining laws of their land and laws of religion. Still,
it connotes a separation between jural and non-jural laws through the natural law that are basically
exemplified in scientific, mathematical and analytical studies.
Here in the Philippines and in our society where we have opened our eyes since the colonial
occupation of the Spaniards, we cannot deny it as well that the uprise of the Church has given
impetus to a strong solidarity that the Roman Catholicism cannot be taken away from our mentality
as one Philippine nation. Even if the principle of the separation of the State and the Church should
be strictly eyed upon, when the Church speaks, the Filipinos hear. The Church has so much impact
in our society that even common Filipinos could not resist to uphold the teachings of the Church
than protecting the legal rules of the land, even in passing bills that the Church contravenes. Clearly,
there is but an imbalance between Jural and Non-Jural Laws here in our society.
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GREEK LAW
About thousands of years ago, Greek polis was superior. Social organization tends to be
simple and equal above all, access of every individual to the communitys material goods was
shared. Greed and over-indulgence were absent despite the privilege because members thought were
grounded on the sense for kinship and communion.80
Later on, men began to use hand tools to cultivate plants and domesticate animals.
Technology developed at this era because men started to make surplus materials to generate
commodities needed for self-preservation. Life then became easier compared to the hunting and
gathering society because assistance from objects derived from nature was already at hand. Tools
were either introduced from the own tribe or from neighboring tribes. Thus, communication to
organized groups outside of ones community also started.81
Greek law grouped those who were skilled in handling and producing these tools. They were
given more importance and their influence spread rapidly to societies below of them in terms of
advancement. Amidst the advantage of the few, people still worked without inferiority to each other.
Resources were shared. They worked in mutual trust and assigned particular tasks to every member
of the community; this is commonly called specialization. Citizens of the polis produced goods not
for the sake of profit, but for the common-good.82
Today, the tools produced became more complex, vastly produced more efficiently than
before. It permitted for more land to be farmed by fewer people giving way to the Agrarian societies;
as a result, societies did not have to follow nomadic lives, wandering about in search of food or to
escape floods and droughts. They began to settle in a permanent land that enabled them to plow even
greater food supplies. However, profit maximization had now become a primary goal especially
80
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those who owned lands. Land owners or feudal lords began to compete from these battles were
forced to lease appealing work. Wealth also became hereditary concentrated on the hands of few.
Some people accumulated much over time, while others accumulated less. Thus inequality began. 83
Greek law is a standard of our present law. Leaders can never anymore turn back time to
pattern his society to the Greek polis but they can still learn a lesson from the past a lesson that
will use law as a means to administer the common-good.84
83
84
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85
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philosophy. Thus, in Rome the Roman government basically outweighs parental authority of parents
over their own children. 88
It was only in 6th century AD when emperor Justinian I ruled over the Byzantine Empire in
the east did Rome began to publish a comprehensive code of laws, known as the Corpus Juris
Civilis, also known as the Justinian Code.
Emperor Justinian
Flavius Anicius Justinianus, nephew of Justin I89, who was born in Tauresium and was
known as Sabbatius is the son of a Slavonic peasant. When his uncle died in 527, Justinian, who was
already holding the chief power in the state, was crowned along with his wife, Theodora. 90
During Justinian's reign, he was able to restore the Roman Empire to its ancient limits.91
With memories of the old Rome, he set himself, and achieved the task of reviving their glory
through military triumphs, legal work, ecclesiastical organization, and architectural activity.
Dominating all is the policy of restoring the empire, great, powerful, and united. 92 It was as legislator
that Justinian gained his fame. He collected and codified all the principal imperial statues, and added
new ones that gave his people even more rights. He called this body of law the Code. 93
88
Roman Empire Code of Civil Law. http://www.quaqua.org/romanempire.htm. Retrieved October 19, 2012.
Byzantine emperor (518-527); Predecessor of the great emperor Justinian.
90
Emperor Justinian http://www.historyguide.org/ancient/justinian.html. Retrieved October 19, 2012.
91
Ibid.
92
Justinian I http://www.historyguide.org/ancient/justinian.html. Retrieved October 19, 2012.
93
Emperor Justinian http://www.historyguide.org/ancient/justinian.html. Retrieved October 19, 2012.
89
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Code of Justinian
The Code of Justinian was a collection of imperial constitutions compiled, by order of
Emperor Justinian, by a commission, and promulgated AD 529. It comprised twelve books and was
the first of the four compilations of law which make up the Corpus Juris Civilis.94
The Code was divided into four parts. The Codex, by which all previous imperial enactments
were repealed, was published in 529. The writings of the jurists were next published as the Digest of
533. Finally, there appeared in the same year, the Institutiones, a systematic and elementary treatise
on the law. In later years, Justinian promulgated several new laws, known as the Novellae. The
Institutes, Digest, Code and Novels together comprise what is known as the Corpus Juris Civilis,
the Body of Civil Law.95 The Code covers two types of law: first, the unwritten laws based on
customs and usage; second, the written laws such as edict of the Emperor, edicts of the magistrates,
and commentary by legal experts. The areas of law in the Justinian Code are public law law for the
government, and private law - law for individuals composed of Natural Law, Law of Nations, and
Civil Law.96
The Code was considered the code to be comprehensive and unified, and forbade further
development of legal precedent through judicial rulings or scholarly commentary. Justinian's
approach precluded judicial expansion of civil rights, curtailed a check against executive power, and
permitted differential treatment of similarly-situated defendants by discouraging judicial reference to
precedent.97
94
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The person has the right to know his wrong act or what he is being accused of, and he also has the
right to know the penalties being attached to it. In Canon Law, the person or the offender should
consent to the action freely. And, if the offender is insane he/she cannot receive a penalty.
Penalties
The Canon Law provides for two different types of penalties: expiatory and medicinal. An
expiatory type of penalty deter offenders, to restore right order and to repair the harm caused to the
community (in Daly, 2009, p. 2). Medicinal penalty, on the other hand, aims to reform the
offender. This includes suspension, and excommunication. Some penalties not classified are those
penalties after death. A prominent example is refusal to bury the offender from a Catholic Church.
Most often than not, these offenders are members of the mafia, or with the IRA bombers.
Prescription
The Canon Law also has prescription in imposing or declaring penalties. Prescription is
defined as a statute of limitation on pursuing a criminal action to impose or declare a penalty after a
certain period of time (in Daly, 2009, p. 2). Crimes in canon law have 3 years prescription.
P a g e | 47
would be Ephesians 5:5-7 which avows that, no immoral or impure or greedy person,that is, an
idolater, has any inheritance in the kingdom of Christ and of God. Let no one deceive you with
empty arguments, for because of these things the wrath of God is coming upon the disobedient. So
do not be associated with them. For you were once darkness, but now you are light in the Lord. Live
as children of light. Likewise, the passage from Ephesians tells us that those evildoers will never
enter the Kingdom of the Lord.
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Origin
The law of England dates back to the Anglo-Saxon era in which the Roman Empire brought
law and order into the country and lasted more than 600 years. Its origins are the legal concepts of
the Anglo-Saxon invasions. The victory of William the Conqueror, a Norman, ended Anglo-Saxon
rule. It did not, however, end Anglo-Saxon law. William combined Anglo-Saxon law with Norman
law. After 1066 of the Norman Conquest, the New Rulers didnt try to impose the legal system on
Anglo-Saxon England. The combination of Anglo-Saxon and Norman law emerged as English
common law. It developed as custom and precedent rather than by written code.99
When William the Conqueror vanquished England in 1066, English law was a loose
collection of decentralized customs, traditions, and rules followed by the Anglians and Saxons,
among others.100 The Norman conquest of England introduced a number of legal concepts and
institutions from Norman law into the English system.
98
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William established an aula regia, or royal court, with a chief justiciary, as he was called, to
represent the king; and out of this aula regia, in course of time, grew the Courts of King's Bench,
Common Pleas, and Exchequer, well known to the later history of English Law. 101
The royal judges of Henry II, and of succeeding reigns, evolved the Common Law from the
procedure of the King's central courts the Court of King's Bench, the Exchequer, and the Court of
Common Pleas. The Court of Common Pleas was responsible for hearing civil cases between
commoners. The Court of King's Bench was responsible for trying civil and criminal cases and
became the highest court of appeal in the nation. The Court of the Exchequer handled the financial
affairs of the nation and had exclusive jurisdiction over cases involving unpaid taxes.
Emergence
The crafting of English Common Law began in the reign of Henry II. Henry II had foreign
legal learning and instituted fundamental legal reform in England. Henry II laid the groundwork for
the common-law method of deciding cases, whereby judges make decisions in accordance with other
decisions they have rendered in similar matters. The royal system of justice was governed by a
single set of legal rules and principles, which was applied evenhandedly to litigants presenting
claims to the monarch's justices.
In 1154, Henry II institutionalized common law by creating a unified court system
common to the country through incorporating and elevating local custom to the national level,
ending local control, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn
on oath to investigate criminal accusations and civil claims. Judges of the realm went on regular
journeys throughout the country bringing the King's justice to every citizen. Their aim was that there
101
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should be a common system of law throughout the land, hence the laws became known as the
common law.102
It was under Henry II that judges were for the first time sent on circuits, hearing pleas in
the major places they visited and taking over the work of the local courts. In time, the decisions of
the judges were written down. As the decisions of these courts came to be recorded and published,
so the practice developed where past decisions (precedents) would be cited in argument before the
courts and would be regarded as being of persuasive authority. These practices developed into the
common law of England, the law which was available throughout the realm.
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Advantages:
1) Equity As the precedents are followed in all cases, all people are treated equally. The
same legal principles are applied to all people irrespective of their position or wealth or
power. This system of following precedents which has already been set previously, brings
equity and fairness.
2.) Expedient As these decisions are based on previous judgments, it is more convenient
to follow this process through. The process is easier and more practical as there are no fixed,
lengthy rules but real situations that have already been resolved.
3) Efficient As there is already a basis on which the judgment will be passed, the judicial
process becomes faster. There is certain efficiency in the process as compared to what the
procedure would be like in comparison with a system that did not follow the precedent based
system. Also, these decisions are based on a precedent; thus, have a stronger basis.
Disadvantages:
1) Perpetuation of bad decisions There is the drawback that once a decision has been
made, if there is no change and the same decision is followed again, a bad decision will be
continually valid. Common law systems are all about following precedents so changes take a
long time to happen. In the meantime, a bad decision continues to be upheld.
2) Difficulties when precedent is absent Judgments are made on the basis of precedent and
when there is no precedent, the system comes to a standstill/stop.104
Contribution
English common law is regarded as England's greatest gift to mankind. Besides the system of
104
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judicial precedents, other characteristics of common law are trial by jury and the doctrine of the
supremacy of the law.
The trial-by-jury system employed by Henry II, though only an embryonic form, reflected
society's growing understanding that verdicts based on personal knowledge of a dispute were more
reliable.105
On the other hand, supremacy of the law meant that not even the King was above the law;
today it means that acts of governmental agencies and ministers can be challenged in the courts.
105
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MAGNA CARTA
The Magna Carta, or Great Charter, was arguably the most significant early influence on
the extensive historical process that led to the rule of constitutional law today in the Englishspeaking world.106 Regarded as one of the most famous documents in the history and the foundation
of English civil liberty, it also stands as the historic prototype of later declarations of human freedom
in various lands.107
The Magna Carta was signed during the reign of King John of England at Runnymede on
June 15, 1215. The main purpose of the document was to limit the power of the King and required
him to recognize certain rights of the people, respect certain legal procedures, and accept that his
will could be bound by the law.
106
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Anjou. In 1202, John's nephew, Arthur of Brittany, was murdered. Many in Brittany believed that
John was responsible for his murder and they rebelled against John.109
109
Ibid.
Magna Carta http://www.historylearningsite.co.uk/magna_carta.htm. Retrieved September 23, 2012.
111
Ibid.
112
Ibid.
110
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In 1214, John continued to suffer military defeats in an attempt to recover the lost territories
in France. He returned to London and demanded more taxes from the people but the barons were no
longer listening. They rebelled against the Kings power. They captured London but were not able to
defeat the King entirely. Both parties were open to negotiations which later led into the signing of
the Magna Carta.113
Magna Carta
John was forced to sign the Magna Carta at Runnymede in 1215. This guaranteed the people
of England rights that the king could not go back on. 114 The Magna Carta was a list of rights. Most
rights were already law. The Magna Carta restated them so there would be no confusion. The Magna
Carta added new rights. One of the new rights was that nobles could keep watch over the king. They
could seize his castles if he did not keep his word.115
The Great Charter can be divided into sections. After an opening chapter guaranteeing the
rights of the Church, the next 15 chapters were provisions designed to curb the king's exploitation of
loopholes in feudal custom: limiting scutages and relief payments, and banning the abuses of
privilege common in wardship. A further ten chapters dealt with finances, and another important
block confirmed people's rights under the Common Law. 116
Most of the clauses of the Magna Carta deal with Englands legal system. Magna Carta
promised laws that were good and fair. It states that everyone shall have access to courts and that
113
Ibid.
King John http://www.historylearningsite.co.uk/king_john.htm. Retrieved September 23, 2012.
115
King John & the Magna Carta http://medievaleurope.mrdonn.org/magnacarta.html. Retrieved September 23, 2012.
116
Mike Ibeji, King John and the Magna Carta
http://www.bbc.co.uk/history/british/middle_ages/magna_01.shtml#two. Retrieved September 23, 2012.
114
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costs and money should not be an issue if someone wanted to take a problem to the law courts. It
also provides for due process for all prior to conviction.117
In 1216, John tried to go back on the Magna Carta but this only provoked the barons into
declaring war on him. By 1216, John was ill. During the war, he suffered from dysentery. He also
lost all of his treasure when he tried to take a shortcut across a stretch of water in the Wash,
Lincolnshire. As the tide rose faster than he expected, his baggage train was engulfed. Just a few
days later, John died and was succeeded by his son, Henry III. 118
The Magna Carta only lasted for three months but its contribution the development of the
modern democracy is invaluable. The Magna Carta was a crucial turning point in the struggle to
establish freedom.119
The Magna Carta provides for the protection of the people against the abuses of the king
during the medieval times. Four points can be pointed out: 1) The Church - The Church was to be
free from royal interference, especially in the election of bishops; 2) Taxes - No taxes except the
regular feudal dues were to be levied, except by the consent of the Great Council, or Parliament; 3)
The right to due process which led to Trial by Jury; and, 4) Weights and Measures - All weights and
measures to be kept uniform throughout the realm.120
The Magna Carta is said to be the foundation of English civil liberties. It influenced the
development of the common law and other constitutional documents, including the United States
Constitution.121 It laid down the basis for the rights of the people which the government must
respect, and if violated, proper retribution shall be given.
117
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Our Constitution is patterned from that of the United States Constitution, being a former
colony of the latter. Perhaps, our version of the Magna Carta is the Bill of Rights found in our
Constitution. The Bill of Rights provides for the inviolable rights of the people and imposes the
limitations on the government as means of securing those rights.
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The United States developed their legal system from the English common-law tradition,
which employs the principle that a courts decision or a case should be consistent with previous
judicial decisions. This is in abidance with precedents which is a Philosophy of stare decisis (to
stand by things that have been settled). Principles of law, once established, are considered
authoritative in all subsequent similar cases. Precedents, however, is more of a rule of a thumb than a
strict command, it must constantly be weighed as to what Justice Oliver Wendell Holmes would say
as the the felt necessities of time. In the Philippines, we also adhere to the doctrine for reasons of
stability in the law but they are not authoritative. As cited in the case of Tan Chong vs Sec. of Labor,
79 Phil, 249):
Of course, when a case has been decided erroneously, such an error must not be
perpetuated by blind obedience to the doctrine of stare decisis. No matter how sound
a doctrine may be, and no matter how long it has been followed thru the years, still if
found to be contrary to law, it must be abandoned. The principle of stare decisis does
n ot and should not apply when there is a conflict between the precedent and the
law.122
American Legal System is responsive to public opinions. Thus, in order to involve the public
in judicial decisions, Courts and the accused are given the discretion to resort to a jury trial. The
system involves at least ordinary citizens but not more than twenty-four members tasked to render
decisions in cases involving public concerns---mostly criminal cases. Ordinary citizens are
summoned and refusal for invalid reasons is not allowed for attendance is a civic duty. Protection
122
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and security among the participants (jurors) from the litigants or anyone is assured utilizing the
governments resources. Such is called judicial statesmanship i.e., courts rendering decisions not
based solely on law but also public opinions. 123 In the Philippine setting, our Judiciary is strictly
objective in rendering legal decisions; however, when the Philippine law is silent when it encounters
a different factual situation, a judge MUST give a decision even if he does not know what laws
provided that it must be in harmony with the general interest, order, morals, and public policy e.g.,
decisions of foreign and local cases, opinions of highly qualified writers and professors, rules on
statutory construction, etcetera (Chua Jan vs. Bernas, 34 Phil 631). 124
Another feature of the power of the United States Courts which influenced legal systems in
world (including the Philippine Legal System) is the exercise of judicial review.--- the voiding of a
legislative or executive action on the grounds that it conflicts the Constitution. Judicial review laid
its origin in the case of Marbury vs Madison (1803), in which the Supreme Court declared an act of
Congress unconstitutional. In the so-called American system of judicial review, all judges can
evaluate the applicability of the Constitutional Law to particular cases that can declare ordinary law
invalid when it violates the Supreme Law of the land enforcing the idea of constitutional supremacy
also defined by our Philippine jurisprudence:
If the law on contract violates any norm of the Constitution, that law on contract
whether promulgated by the legislative or by the executive branch or entered into by
private persons is null and void without any force and effect. Thus, since the
Constitution is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract.125
123
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In the United States, where the doctrine of judicial review and employment of a jury system
is accepted, the person who disagrees may say that the law is somehow contrary to the Constitution
that is therefore not valid law. Thus, the executive must be barred from enforcement. This is a
feature of the SEPARATION of POWERS or the CHECK and BALANCES. Members of the
Judiciary, being co-equal part of the tripartite division of government is granted independence to
formulate its own rules of proceeding to properly function in a democratic state.
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CODE OF HAMMURABI
The Code of Hammurabi is the oldest set of laws to have ever existed and quite possibly the
most remarkable and influential creation of its time. The king and chief priest of Babylonia from
1792-1750 B.C. Hammurabi greatly developed his empire prior to focusing his energies toward
attaining wealth and justice for his people.
Hammurabi created the code to protect all classes of the Babylonian society, including
women and slaves. He sought protection of the weak from the powerful and the poor from the rich.
The carving on the stone on which the code is written depicts Hammurabi receiving the divine laws
from the sun god, the god most often associated with justice. This stone was unearthed by French
archaeologist in Iraq in 1901-1902. The black diorite rock is 2.4 m high and has been broken into
three pieces.126
Hammurabis code consists of 44 columns of text, 28 paragraphs of which contain the actual
code. There are 282 laws that may have amended common Babylonian law instead of defining it.
The law describes regulations for legal procedure, fixes rates on services performed in most
branches of commerce and describes property rights, personal injury and penalties for false
testimony and accusations. It does not have any laws in relation to religion. 127
The Code of Hammurabi is an important in all of Babylon because it permits men, women,
slaves and other people to read and understand the laws that governed their lives. It is a one of a kind
law in that laws of other civilizations were not written down, meaning it could be manipulated in a
way that rulers would deem it would suit their own selfish needs and interests for their respective
societies. The code does not permit for vigilante justice, although it does follow the practice of an
eye for an eye. It does, however, demand a trial by judges. It also extols acts of peace and justice
126
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that are done during Hammurabis rule. It signifies mans rise above ignorance and barbarism
toward the peaceful and just societies still pursued today, going beyond the emergence of justice in
the minds of men. In the words of Hammurabi as carved on the stone: Let any oppressed man who
has a cause come into the presence of my statue as king of justice, and have the inscription on my
stele read out, and here my precious words, that my stele may make the case clear to him; may he
understand his cause, and may his heart be set at ease.128
128
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CODE OF KALANTIAO
In general, a rule of being or of conduct, established by an authority
able to enforce its will; a controlling regulation; the mode or order
according to which an agent or a power acts.129
The law is said to be present in every developed society also it augment the said societal
development by setting rules on trade, peace and order and the rights of every free man. 130 The set of
rules or the law mushroomed to captivated the flow of demands of a growing community, 131 the
evolution of the law can be traced from the ten commandments of Moses, where in the Christians
were asked to obey the rules of God in return of a ticket to heaven, on the purely political and social
side, we have the132 code of Hammurabi which is a 1780 B.C creation, the code was said to be a
combination of Egyptian, Persian and Greek influences. It was created to address the needs of the
society during that time, specifically to curb the barbaric acts of the people. And the Justinian code
or133 Corupus Iurus Civilis or the Justinian Code, was the result of Emperor Justinian's desire that
existing Roman law be collected into a simple and clear system of laws, or "code." Tribonian, a legal
minister under Justinian, lead a group of scholars in a 14-month effort to codify existing Roman law.
The result was the first Justinian Code, completed in 529. This code was later expanded to include
Justinian's own laws, as well as two additional books on areas of the law. In 534, the Justinian Code,
made up of the Code, the Digest, and the Institutes, was completed. These are among the first light to
129
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glow amongst the many legal developments on the western part of the globe and believed to be the
foundation of all legal system.
History books with topics on Philippine history only tackle the Malolos constitution, the
1935 constitution the 1973 constitution, the freedom constitution during martial law and the present
1987 constitution but little had been known about the Code of Kalantiao being the forerunners of the
legal system in the Philippines. Like the western civilization, the Philippines never came in late as to
legal evolution.134 The country was even the first who gain its independence July 4, 1946 from
foreign control in Asia.
Long before the Spaniards came and spread Catholisism and western living in the
Philippines, the native Filipinos had already evolved their own rules of behavior based on their
customs, traditions and beliefs. Two of these are now part of our historical heritage - the Maragtas
Code, drafted in 1250 A.D. and the Code of Kalantiao, believe to have been written in 1443 A.D.
The origin of the Code of Kalantiao is shrouded in myth and legend. It is said that Aklan, one of the
three kingdoms of ancient Panay, was once ruled by Datu Bendahara Kalantiao, a descendant of the
10 migrant datus who fled from a cruel ruler in Borneo to settle in Aklan in 1212 A.D. Being a wise
and just ruler, Kalantiao saw fit to codify the penal laws of his kingdom. In 1838, Fr. Jose Maria
Pavon put into manuscript from the stories and legends he collected in Negros Occidental. Included
in this collection was the Code of Kalantiao which, Pavon claimed, was contained in a document
found in 1614 in the possession of a local chieftain in the island of Panay.
The code is legendary and found in the book Maragtas. Jose E. Marco in 1913 wrote about it
when he published a historical review of the island of Negros in the Spansh language journal,
Renacimiento Filipino.
134
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Lack of historical significance - There is simply no written or pictorial documents from that
time in Philippine history. There are no documents from other countries that mention the great Datu
Kalantiao, either. There is also no evidence that Philippine culture ever spawned such barbaric set of
laws.
Lack of evidence for Kalantiaos existence - In almost 400 year of documented Philippine
historyfrom Magellans arrival in 1521 until the second decade of the 20th centuryno such
legend was ever recorded. Digno Alba, an Aklanon historian, was once asked by another historian,
William H. Scott, to ask the locals of Aklan if they know of legends or folklores pertaining to the
said Datu, and found nothing about him.
Lack of documentary source - Scott eventually traced the ultimate origin of Kalantiao back
to a single person, Jose E. Marco of Pontevedra, Negros Occidental, who definitely did not live in
the 1400s. he claimed to have discovered the Pavon documents that contained information about the
said code. Las Antiguas Leyendes de la Isla de Negros, a two volume leather bound work, was one
of the five manuscripts donated by Marco to the Philippine Library and Museum. This document
was supposedly written by a Friar Jose Maria Pavon in 1838 and 1839. For several decades, Marco
didnt explain, at least in writing, where he got Friar Pavons manuscripts, but it seems that he had a
ready explanation to tell privately. The anthropologist and historian Henry Otley Beyer related this
story to his colleague, Mauro Garcia, in the early 1950s. As the story goes, Pavon was the priest in
the town of Himamaylan, Negros, in the 1840s. When that town was looted during the revolution in
1899, Marcos father was among some looters who had stolen what they thought was a chest of
coins or jewelry, but when it was accidentally dropped in the river it became so heavy that they
realized it was full of papers, which were apparently the Pavon documents. However, if this story
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was true, Marco would have had to explain why he didnt mention about it when he wrote his
review.135
The provision of the Code of Kalantiao was said to have a penal character, however, some
noted that the penalties imposed therein are brutal and inhuman. Penalties like to be fed in crocodiles
and to be hanged in a tree for offenses like singing during night time and the head master is
disturbed in their rests. Also, the code emphasized respect to the tribes leader for according to the
code discourtesy to the tribe master will be punished with amputation of the parts of the body to
death. It may be said that the Code of Kalantiao is fictitious and in want of a solid basis to stand
recognition in the field of history and in the legal parlance, nevertheless it serves as a foundation to
be referred on pertaining to the Philippine legal history.
135
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136
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laws and the realm are seen as divine commands.140 During this time, justice was dispensed by the
tribal leader but this eventually led to an organized hierarchy of courts. 141
In the Mosaic Period comes the Pentateuch or Five Books, which is also known as the Torah,
or Ancient Law. The Torah is the first part of the Jewish bible. It is the central and most important
document of Judaism and has been used by Jews through the ages. The term Torah is sometimes
used in a more general sense to incorporate Judaism's written and oral law.142
Moses is the key figure in Jewish history, described as the greatest of all the prophets. He
was the person believed to receive not just the Ten Commandments but the entire Torah the Law
of Moses given on Mt Sinai.
The Five Books of Moses include narrative material beginning with the creation and
continuing until the arrival of the Jewish people in Israel after forty years in the desert. Interwoven
with the narrative is the Divine law, which consists of 613 commandments covering such matters as
principles of justice, complex provisions for the poor, loving-kindness in human relations, the legal
obligations of rulers, rituals for repentance, the observance of festivals and much more. 143
The Mosaic Law can be broken into three broad segments: the moral law or the Ten
Commandments the part of the law that governed the moral life giving guidance to Israel in
principles of right and wrong in relation to God and man; the judgments or the social law the part
of the law that governed Israel in her secular, social, political, and economic life; and, the ordinances
or the ceremonial law the religious portion of law which guided and provided for Israel in her
worship and spiritual relationship and fellowship with God.
140
Ibid.
Exodus 18:2526. The Holy Bible, King James Version.
142
BBC (2009). The Torah http://www.bbc.co.uk/religion/religions/judaism/texts/torah.shtml. Retrieved October 4,
2012.
143
Pellach, P.J. (2006). Moses http://www.ijs.org.au/Moses-and-the-Exodus/default.aspx. Retrieved October 4, 2012.
141
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The Classic Period is the period when the rabbi developed the law and the function of justice
had ceased to be a royal one. The Hebrews were under the suzerainty of Persian, Greek, and Roman
rulers, but in their internal government the supreme authority religious, social and political;
legislative and judiciary was vested in a Senate, known under the name Great Sanhedrion
(assembly, hebraicized as sanhedrin), which consisted of 71 members.144
The Talmudic Period was from A.D. 200 to A.D. 500. The Talmud is the body of Jewish
civil and ceremonial law and legend comprising the Mishnah (codified text) and the Gemara
(commentaries). These are reports of all recorded cases and comments since about 300 B.C. 145
The Medieval Period began at the dispersion of the Jewish nation. The learned rabbi wrote
treatises and compiled codes and thus perpetuated the traditions of the law. One of the most famous
was Maimonides who lived in North Africa in 1400s and wrote numerous works. By these means,
the common customs of religious and family life and commercial practice were kept alive, though
the race was scattered in many countries.146
The Modern Period started from 1600 A.D., where nationalism in Europe began to
amalgamate all races that lived within given territories, and to emphasize national languages, so the
Hebrew language became only a secondary one for Jews. During this period, the Talmud was
critically studied and translated into the various national languages. Even today, the Scroll of the
Law, known as the Torah, is preserved in every synagogue. 147
144
William Seagle, The History of Law, New York, Tudor Publishing Co., 1946, p. 94.
Ibid, p. 117.
146
Ibid, p. 123.
147
Ibid, pp. 130132.
145
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Criticism
It has been contended that the laws of the Bible are harsh and unreasonable. Also, some
contend that the Old Testament does not actually set forth a series of judicial or civil laws that a
simple reading of Exodus or Deuteronomy will show that there is no place where a set of laws
148
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constituting a legal civil code is to be found. Rather, social, personal, civil, familial, and
ceremonial laws are found all mixed up together.149
149
Jordan, J (1999). Calvinism and The Judicial Law of Moses. Retrieved from
http://www.reformed.org/ethics/index.html?mainframe=/ethics/Jordan_judicial_laws_Moses.html. Retrieved October 4,
2012.
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150
Muslim or Islamic law, both civil and criminal justice as well as regulating individual conduct both personal and
moral. (http://www.duhaime.org/LegalDictionary/S/ShariaLaw.aspx)
151
Sharia law within Sunni Islam: A brief Introduction http://www.religioustolerance.org/islsharia.htm. Retrieved
September 26, 2012.
152
Schacht, Joseph, An Introduction to Islamic Law, (Oxford: Clarendon Press, 1964), page 1
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Under Sharia, Islam and government are fused together; thus, championing theocracy.153
Religious texts are laws and are enforced such that the elected or selected head of state has ultimate
decision-making power invested in a single head whose rule represents God and operates under
Quran and practices of the Prophet. So thorough is the integration of the justice system and the
Church such that under Sharia, courts are essentially religious courts; judges are usually local
Mosque officials154. It purports to regulate public and private life through a concept of lawful and
unlawful actions classified as obligatory, prohibited, recommended, repugnant and permissible.
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Historically, Islamic extremism could be traced back to an era as early as the Prophet
Muhammad in the 7th century. The Prophets call for conversion or Dawah to Islam on his peers, his
withdrawal or Taksir from them because they rejected his call, and his struggle or Jihad 157 to
subjugate them and to effect change became the model of extremists in their modern-day war against
perceived enemies. Dawah-Taksir-Jihad concept is being used by extremist Islamic groups in
waging revolutionary struggles.
A prominent portion of the history of Islamism is also given to the rise of Wahhabism 158 in
Saudi Arabia in the 18th century through the efforts of Muhammad ibn Abd al-Wahhab who
popularized the term fundamental in his writings. Also, the 1979 Iranian Revolution of Ayatollah
Khomeini159 has paved the way for the dissolution of the US-backed Iranian government and the
establishment of the Islamic Republic of Iran, the only one in the Muslim world. Moreover, the
Russo-Afghan War in the 1980s has become an inspiration for the Mujahideen or participants in the
Jihad because they were able to prove that they could defeat a superpower like the USSR. .
The fall of the Ottoman Empire was perceived to have marginalized Islam; secularism,
which is marked by materialism and the erosion of Islamic morality or values and of which the US is
the chief manipulator; poverty, which some Islamic revolutionaries blame on secular or anti-Islamic
governments; and, the Palestinian conflict involving US support for Israel in Palestinian territory and
the presence of US troops in Saudi Arabia, both Muslim holy lands, which extremists view as
conspiracy of US and Israel to invade Muslim sacred lands. The US invasion of Afghanistan and
157
A tenet of Islamic law to adherents, with the reward of eternal life in Paradise, if they promote and exhort the word of
Muhammad and the Koran to others, and not necessarily excluding the use of violence.
(http://www.duhaime.org/LegalDictionary/J/Jihad.aspx)
158
A reform movement that began 200 years ago to rid Islamic societies of cultural practices and interpretation that had
been acquired over the centuries. (http://www.globalsecurity.org/military/world/gulf/wahhabi.htm)
159
Ayatollah Khomeini (1900-1989) http://www.bbc.co.uk/history/historic_figures/khomeini_ayatollah.shtml.
Retrieved September 26, 2012.
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Iraq intensified the desire of Osama bin Laden and Al-Qaeda to retaliate against US and its
perceived allies.
In the 1900s, prominent theorists played significantly in the development of Islamic
extremism: Hassan al-Banna (founder of the Islamic Brotherhood in Egypt), Abdul Maududi
(favorite author of the late Hashim Salamat), extremist activist Sayyed Qutb (writer of the book
Milestones in 1964, considered as the first manual of Islamic political militancy), and Hassan alTurabi (who predicted that Islam would eventually challenge the hegemony of the west) - the
ideological forerunners of Osama bin Laden.
Jihad Fisabilillah or struggle in the way of God against physical and spiritual oppression is
the cornerstone of Islamic extremism and imposes Jihad as a personal and collective obligation of all
Muslims against an external enemy who threaten Islam.
Extremist Islamization takes place when the use of violence or force in the formation of an
Islamic society. It is done to support and/or launch Jihad Fisabilillah. There are two kinds of Jihad;
namely, the greater Jihad and the lesser Jihad. The greater Jihad is a struggle with oneself to master
ones sensual desires and overcome sinfulness, while lesser Jihad is a struggle against an external
aggressor to protect Islam and its adherents. The concept becomes extremist when lesser Jihad is
considered as obligatory upon Muslims because the world is divided into the world of Islam and the
world of war, which are always in conflict and because there is a need to liberate humanity from the
immorality of materialism and secularism. 160
Islamic extremism has spawned a global Islamic revolution that is being waged by armed
extremist groups and supported by non-armed extremist organizations for the establishment of
Islamic states. It is carried out by armed Islamic groups or by non-armed Islamic organizations that
160
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have been formed or manipulated for this purpose. This is done among the recruits and potential
supporters of these groups and is accomplished in a Muslim community, gathering, Mosque (Islamic
church) or Madrasah (Islamic school).
Fisabilillah. Bombing, assassination, kidnapping-for-ransom, and robbery are some of the tactics
resorted to in waging Jihad usually against non-Muslim targets.
Conclusion
Islamic extremism aims to re-establish the Islamic fundamentalist order. Extremist Islam is
being driven by religious fanaticism. Muslim extremists believe that they can attain their objective
in any way because God is on their side, and nothing is impossible with God. Islamic extremism is
the product of history and theory unique to the Muslim world. Extremist Islamization is the starting
point because it is the indoctrination on the principles of Islamic extremism. Jihad Fisabilillah is the
armed struggle for the cause of God that is waged to realize the objective of Islamic extremism.
This objective is the establishment of an Islamic state or government, which is based on Islamic law
that comes from the Quran and the practices of Prophet Mohammad.
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161
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The Bill of Rights is an integral part of the Philippine Constitution so as to avoid chaos and
wars in society. It brings about fairness between the privileged and the underprivileged. As stated by
the Supreme Court in the case of People vs. Tudtud, the Bill of Rights is the bedrock of
constitutional government. If people are stripped naked of their rights as human beings, democracy
cannot survive and government becomes meaningless. The Supreme Court further stressed that the
Bill of Rights occupies a position of primacy in the fundamental law way above the articles on
governmental power.162 To put it simply, the Bill of Rights is an important part of the Constitution
and it should not be amended, revised nor repealed.
162
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LEGISLATIVE PROCESS
The legislative power, by virtue of the 1987 constitution is vested on the legislative branch of
the Philippines. They are basically tasked in legislations, in which resulting laws are known as
legislative enactments.
There are three types of legislation.163
Bills These are general measures that may become laws if passed.
Joint Resolutions Like the bill, these have the same effect as laws when passed. However,
they first need to be approved by both houses and signed by the president.
Concurrent Resolutions These are bills designated by the Senate, which are used in matters
affecting the operations of the senate. The poses importance in fixing the time of
adjournment of a Congress and to express the sense of Congress on an issue.
Simple Resolutions Unlike the concurrent resolutions, these only deal with matters that are
within the privilege of one house of Congress. They are similar to the concurrent resolutions
in a way that they do not have the effect of a law and is used to call for a congressional action
on an issue affecting national interest.
163
1987 Constitution of the Republic of the Philippines .Chan Robles Virtual Library.
http://www.chanrobles.com/article6.htm#.UIN16aPJchA. Retrieved October 6, 2012.
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The bill may originate from the house of the representative or the senate. During the
preliminary procedure, the senate can introduce the bill by request or proposal and is filed in the
Office of the Secretary, where it is given a corresponding number and calendared for the First
Reading. During the First Reading, only the title, bill number, and authors name is read on the floor.
After the first reading, the senate president refers the bill to the right committee who acts as the
little legislatures. By virtue of Section 29, Rule XI of the Rules of the Senate the committee may
dispose the bill, approve or reject legislation without amendments, or report favorably without
recommendation. If the committee submits the bill with unfavorable reports, the bill shall be
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transmitted to the archives of the senate. However, if the committee approves the bill with favorable
reports, the bill will proceed to the Committee on Rules for Second Reading. 165
During the second reading, the author of the bill will deliver sponsorship speech on the floor.
Senators also engage in debate and interpellation to scrutinize the pros and cons of the bill. In the
same stage, the committee and the senators can also propose some amendments. Once done, the
senators will vote on the second reading of the version of the bill. If the bill is approved, is then
calendared for third reading.
During the third reading, printed copies of the bills final version will be distributed to the
senators. This time, only the title of the bill is read on the floor before a nominal voting is held. The
senators by a vote of two-thirds shall approve the bill and refer it back to the House of
Representatives. In the House of Representatives, the bill shall undergo another three readings. By a
concurrence of two-thirds vote, the bill shall be referred back to the Senate for its final version.
Should there be any conflicts with the bill; a Bicameral Conference Committee is called to
reconcile conflicting provisions. After the bill is duly approved by both chambers, it is submitted to
president for approval.
Under the law, there are three ways in which a bill can become a law. First, if the president
signs it. Second, if the president vetoes the bill, it shall be returned to the house where it originated
with the presidents objections recorded in the Journal. After the amendments, the bill can become a
law by a vote of two-thirds. Third, if the president does not communicate his veto power 30 days
after the date of receipt, the bill shall become a law as if he had signed it.
Presidential Proclamations
165
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The president can issue proclamations using Presidents Ordinance Power. Presidential
Proclamations are acts of the President fixing a date or declaring a statute or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made
to depend. In short, presidents define situations or conditions on situations that become legal or
economic truth. These orders carry the same force of law as executive orders the difference
between the two is that Executive Orders are aimed at those inside government while Proclamations
are aimed at those outside government. According to Agpalo, because Publications involve public
interest, requirement for publication applies.
Presidential proclamations are often dismissed as a practical presidential tool for policy
making because of the perception of proclamations as largely ceremonial or symbolic in nature.
They are used ceremonially and symbolically by presidents to honor a group/person or situation or to
call attention to certain issues or events. The best exam for this is Proclamation No. 460, s. 2012,
Declaring National Days of Mourning over the Passing of Secretary Jesse M. Robredo from 21
August 2012 to the Date of his Interment.166
166
Ibid.
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THE JUDICIARY
Branch of government in which judicial power is vested. The principal work of any judiciary
is the adjudication of disputes or controversies. Regulations govern what parties are allowed before a
judicial assembly, or court, what evidence will be admitted, what trial procedure will be followed,
and what types of judgments may be rendered.167
In a democracy, the judiciary is the final bulwark of liberty. It defends and guards the poor
and the weak against oppression and/or domination by the wealthy and/or the influential. It protects
the right to life, property, and the pursuit of happiness against the tyranny of violence, or abusive
offensive power, or such deceitful, fraudulent, unscrupulous ambitions.168
This branch of
government is tasked with ensuring equal justice under law. It usually consists of a court of final
appeal, or the constitutional court, and the lower courts of the state.
In the Philippines, the judicial court system vests its judicial power to the existing courts of
the land that is systematically divided into four levels: the Supreme Court, the National Court of
Appeals, the local and regional trial courts, and the informal local system for arbitrating or mediating
certain disputes outside the formal court system (Fig. 1).
The Supreme Court is considered as the highest judicial body of the land. It is composed of
one Chief Justice, who acts as head, and fourteen associate justices.
aforementioned court are put into position through an appointment by the President of the state on
the recommendation of the Judicial Bar and Council. Further, members of the Supreme Court are
able to serve until the age of 70 unless removed by impeachment. 169 Powers vested in the Supreme
Court include: exercising original jurisdiction over cases affecting ambassadors or other public
figures; changing, reviewing, reversing, or modifying an appeal for certiorari; changing of venue of
167
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trial to avoid injustice; appointing of all officials of other courts; and, giving disciplinary actions to
judges or members of the lower courts.
The Court of Appeals, Regional, Metropolitan, Municipal and Municipal Circuit Courts, and
the special courts such as the Tax Appeals, the Sandigang Bayan and the office of the Ombudsman
comprise the lower courts.170 These courts are also of great importance in the judicial branch of
government. These courts are given the duty to settle actual controversies involving rights, which
are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.171 They are also given the authority to hear and decide cases
between persons, legal entities and/or government agencies through the process of trial to ensure a
peaceful settlement, and to determine the innocence or guilt of a person charged with a crime or
violation of the law. Also, with judicial power, the abovementioned courts have the control to
enforce or void statutes when disputes arise over their scope or constitutionality.
One court of the land that is also worth mentioning is Shari'ah court system. This court
system is a Muslim Court that exercises Islamic Laws with jurisdiction over domestic and
contractual relations among Muslim citizens.
170
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The Presidential Decree No. 1508, later repealed by Republic Act 7160, created the
Katarungang Pambarangay or the Lupong Tagapamayapa and it established a system of amicably
settling disputes at the barangay level. This system of amicable settlement of dispute aims to
promote the speedy administration of justice by easing the congestion of court dockets. The Court
does not take cognizance of cases filed if they are not filed first with the Katarungang
Pambarangay.174
The Philippine Mediation Center was organized pursuant to Supreme Court en banc
Resolution A.M. No. 01-10-5-SC-PHILJA, dated October 16, 2001, and in line with the objectives
of the Action Program for Judicial Reforms (APJR) to decongest court dockets, among others, the
Court prescribed guidelines in institutionalizing and implementing the mediation program in the
Philippines.175
Republic Act No. 9285 institutionalized the use of an alternative dispute resolution system. 176
"Alternative Dispute Resolution System" means any process or procedure used to resolve a dispute
or controversy, other than by adjudication of a presiding judge of a court or an officer of a
government agency, in which a neutral third party participates to assist in the resolution of issues,
which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any
combination thereof.177 The ADR serves to promote the speedy and impartial administration of
justice and unclog the court dockets (Fig. 2).
On September 9, 2008, the Supreme Court promulgated the Rule of Procedure for Small
Claims in A.M. 08-9-7-SC. The Rule for small claims cases dispenses with ordinary rules of civil
procedure and evidence such as strict pleading requirements and formal discovery measures.
174
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Disputes are resolved quickly and inexpensively, while lawyers are not allowed during hearings.
Most important of all, small claims courts are mandated to decide cases after just one hearing. 178
The Judicial System of the Philippines, and perhaps of other countries, at present, is
unconditionally committed to its battle cry of principled and just polices and upright governance.
This branch of government firmly stands to grounds that its over-all national plan of action cannot
but have as its keystone and priority mission, none other than consistent, reliable, dependable,
serious, functional, effective and operative justice system all over the country. And the rest of what
is fundamentally good, right and fair for the Philippines and the Filipinos, basically follow as a
substance of course.
Figure 1.
178
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Figure 2.
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EXECUTIVE DEPARTMENT
The Executive Power shall be vested in the President of the Philippines.179
The president personifies Philippine government for many Filipino. People expect the
president to act decisively and effectively in managing crisis and enforce control within the state.
This has been classified as the executive power in administering laws, which means carrying them
into practical operation and enforcing their due observance.180 Such power is provided by the
Constitution in line of the tripartite division of government we adhere to. However, the great power
vested to the President is not immediately handed to anyone who desires such position. The process
by which the Philippines selects its chief executive undergoes national election aimed chiefly of
granting the Filipino people a larger say in choosing the President that has to pass specific
qualifications; such as:
1) A natural-born citizen of the Philippines,
2) A registered voter;
3) Able to read and write;
4) At least 40 years of age on the day of the election (not proclamation or assumption of
office) for President;
5) A resident of the Philippines for at least ten (10) years immediately preceding such
election.
Moreover, it is discretionary for a constitutionally created agency (i.e., COMELEC) to limit
the number of candidates. To use a term from the ruling of Pamatong vs. COMELEC, admitted
candidates are only those who have political machineries to wage a national campaign.
179
180
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Once elected as president, there are numerous works that need to be done. President does not
solitarily do the tasks; he can delegate it to the Cabinet member (granted by his power to appoint).
The appointees consist of the secretaries of the executive department and others the president may
designate, including ambassadors, other public ministers and consuls, subject to confirmation by the
Commission of Appointments. The Cabinet is an important figure in any administration. Their first
responsibility is to carry out the Presidents instruction or executive orders as a means of enforcing
the law. Despite the importance of the Cabinet members, they also pose a problem especially in
control. As what the American President Harry Truman said pertaining to his subordinates; I cannot
even see all of these men, let alone actually study what they are doing. Thus, it can pave way for
some appointees to act on their own personal interests leading to evil of corruption. Nevertheless,
they are vital to the government and public must be vigilant in their government.
Aside from the power to appoint, there are other constitutionally vested powers to the
president such as:
1. Presidential Pardons: Constitution grants the President the power to grant reprieves and pardons
for any reason. The celebrated case was President Arroyos pardon to former President Estrada
and the present President Aquinos blanket pardon to the Magdalo Group.
2. Veto Power: The Presidents most powerful weapon in dealing with Congress. The veto is an act
of the president to reject a legislative act or a passed law. To veto a bill passed by the Congress,
the President sends to Congress a veto message specifying reasons for not signing it. Positively
for Congress, it can still pass the law over the Presidents opposition by the two-thirds vote of
both houses (overriding power of Congress).
3. Enter into treaties: Entering into treaty is the power of the president to express diplomatic
recognition by entering into compact between two or more states, including international
P a g e | 90
organizations (United Nations, UNICEF, and etcetera). The treaty made is still subject to at least
two-thirds of the members of the Senate. Once consent is received, treaty entered becomes
legally binding in our courts and to the other country who is part of the treaty---this is in
abidance to the international law principle of pacta sunt servanta.
4. War-making power: Constitutionally, declaration of war is solely for the Congress but the
President may be authorized by the former for a limited period of time. Constitutionally,
Congress declares war but it is a fact that only the president has the facilities to engage war. It is
also important to be clear that the war contemplated is a defensive war, not aggressive following
the express constitutional state principle, The Philippines renounces war as an instrument of
national policy.181 To quote St. Thomas Aquinas, such is considered a just war.
5. Declare Martial Law: Martial Law is treated negatively and inculcated fear among Filipinos as a
result of the Marcos regime. Nevertheless, it is still granted by the Constitution only that it is
limited of not more than sixty days and subject to review of the Supreme Court. The justification
for martial law is to suppress lawless violence, invasions, or rebellion. It may be evil for some
but it is necessary in some circumstances.
6. Executive Privilege: The right of the president and executive officials to keep confidential
information from other branches of government (including the Congress), and even to the public
is allowed under the Constitution. The exposure of internal executive operations may obstruct the
presidents ability to conduct negotiations with foreign governments or it may jeopardize
national security and military operations. Although there are plausible criticisms that executive
privilege may be used to conceal anomalies. Citing the case of the former NEDA Secretary Neri,
the public was eager to compel his testimony regarding the ZTE deal. In response, he invoked
181
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executive privilege. For some, it was concealment of corrupt activities; nevertheless, the
Constitution allows it provided that it outweighs public interest.
Other powers include the capacity to enter executive agreements, budgetary power,
impoundment, and to contract and guarantee foreign loans.
It is unclear whether executive power grants the president any powers that are not specified
in the Constitution or given to the president by Congress. In other words, does the grant of
executive power gives the presidents constitutional authority to act as it deem necessary beyond
the specified Constitution or specified in laws passed by Congress? Although this question has never
been fully resolved, there is a historical example where the president has taken an expansive view of
power citing the case of Marcos vs. Manglapus:
The President, upon whom executive power is vested, has unstated residual
powers, which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in
the article on the Executive Department and in scattered provisions of the
Constitution.182
The president has the right to keep the country from going to hell quoting former American
President Harry Truman. Means that are beyond the Constitution or laws passed by Congress are
allowed in so that it is intended for the common-good. Thus, the president can indeed keep away the
country from going to hell.
Filipino people venerates and expects much from the executive or the president as the
representative of the whole nation, great power is given but blame rushes when such power is
182
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misused. Therein lies an irony in the executive office---the power rests on a popular base; however,
it vanishes when public support declines such as what happened in the previous EDSA Revolutions.
As a Filipino citizen, it is important to trust the executive and consent to its operations.
Constitutions intent in establishing the executive department is in abidance with mans entry into
the social contract; more so, good administrators have nothing to fear that EDSA Revolution will
happen again if it uses its powers appropriately.
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PUBLIC ACCOUNTABILITY
A public office is a public trust.
Nowhere
in
the
Constitution
is
the
grand
principle
of
the separation
of
powers through checks and balances in a tripartite government more clearly defined as a geological
formation than in 1987 Article XI Accountability of Public Officers . For here is described
the sole and exclusive judicial power of the Congress over constitutional officers.183
Section 1, Article XI of the 1987 Constitution provides that Public office is a public trust.
Public officers and employees must, at all times, be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead
modest lives.
The first section of this article sums up the high sense of idealism that is expected of every
officer of the government. The notion of public trust connotes accountability. The provisions of this
article are designed to exact accountability from public officers. 184
The succeeding provisions provide for the process and grounds of impeachment, the creation
of the Sandiganbayan which shall have jurisdiction over criminal and civil cases involving graft and
corrupt practices,185 institution of the office of the Ombudsman, its powers, functions and duties, the
provisions on ill-gotten wealth and the mandate for the disclosure of assets, liabilities and net worth.
Jorge Bocobo186 is of the opinion that the Philippine Senate is the Supreme Court of public
accountability when he said note that the Congress has no impeachable officers. All senators and
congressmen are directly accountable to the people through regular elections and the Justice system.
183
Dean Jorge Bocobo, The Philippine Senate IS the Supreme Court of Public Accountability
http://philippinecommentary.blogspot.com/2008/02/senate-impeachment-court-is-supreme.html. Retrieved Sept. 28,
2012.
184
Bernas, Joaquin. The 1987 Constitution of the Republic of the Philippines: A Commentary. Manila: Rex Book Store,
Inc. 2009, p. 1159.
186
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Impeachment is unique. It is the only legal weapon provided by the Constitution for the enforced
removal of a President by the people acting through their Congress. Impeachment is a judicial power
and process exercised by the political branch of the government, the Congress, which is the only
department without any impeachable officers. Impeachment is the closest thing to a jury system that
we have. In impeachment the people themselves become the jury through the senator-judges. Unlike
the secret processes of deliberation in the Judiciary (which is called judicial privilege), impeachment
is a nationally televised affair. Impeachment is the sole and exclusive jurisdiction of the Congress,
no particle of which is shared with either the judiciary or the executive branch. 187
Nowhere is the principle of separation of powers made clearer than here because here the
judicial function of initiating and deciding with complete finality, a case of impeachment, is seen to
be the sole and exclusive power of the Congress. The Supreme Court does not even have the power
of judicial review over such a decision of the Senate Impeachment Court. Not even the powers of
executive clemency can touch the verdict in any case of impeachment. It is crystal clear that
whenever it is convened, the Senate Impeachment Court is the Supreme Court of Public
Accountability.188
The Sandiganbayan's mission is to give life and meaning to the constitutional precept that a
public office is a public trust and to impress upon public officers and employees that they are at all
times accountable to the people with their duty to serve with the highest degree of responsibility,
integrity, loyalty and efficiency. It carries out this objective by conducting expeditious trials of
187
Jorge Bocobo, The Philippine Senate IS the Supreme Court of Public Accountability, retrieved from
http://philippinecommentary.blogspot.com/2008/02/senate-impeachment-court-is-supreme.html. Retrieved September
28, 2012.
188
Ibid.
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criminal and civil cases involving offenses committed by public officers and employees, including
those employed in government-owned or controlled corporations.189
The framers of the 1987 Constitution envisioned the Ombudsman as an official critic who
studies the laws, procedures and practices in government, a mobilizer who ensures that the steady
flow of services is accorded the citizens, and a watchdog who looks at the general and specific
performance of all government officials and employees (cf. Journal No. 40, July 26, 1986, p. 432).
To further strengthen and insulate the Office of the Ombudsman from politics and pressure forces,
the Constitution made it a fiscally autonomous body (cf. Sec. 14, Art. XI, 1987 Constitution),
independent from any other branch of government, and headed by an Ombudsman with a fixed term
of seven years, who could be removed from office only by way of impeachment (cf. Sec. 2, Art. XI,
1987 Constitution). The Ombudsman and his Deputies enjoy the rank of Chairman and members,
respectively, of a Constitutional Commission whose appointments require no Congressional
confirmation (cf. Secs. 9 and 10, Art. XI, 1987 Constitution).190
The clear intent is to give full and unimpeded play to the exercise by said Office of its
extraordinary range of oversight and investigative authority over the actions of all public officials
and employees, offices and agencies. Not only can it investigate on its own or on complaint any
official act or omission that appears to be illegal, unjust, improper or inefficient; it can prod officials
into performing or expediting any act or duty required by law; stop, prevent and control any abuse or
impropriety in the performance of such duties; require the submission of documents relative to
contracts, disbursements, and financial transactions of government officials for the purpose of
ferreting out any irregularities therein (cf. Sec. 13, Art. XI, 1987 Constitution). The conferment of
189
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this extensive authority is prefaced in the Constitution with the bestowal upon the Ombudsman and
his deputies of the appealing title of "Protectors of the People" (cf. Sec. 12, Art. XI).
Section 17 of Article XI mandates the disclosure of SALN. SALN stands for Statement of
Assets, Liabilities, and Net Worth. It is a declaration of assets (i.e., land, vehicles, etc) and liabilities
(i.e., loans, debts, etc), including business and financial interests, of an official/employee, of his or
her spouse, and of his or her unmarried children under 18 years old still living in their
parents' households. The submission of a SALN is required by law under Article XI Section 17 of
the 1987 Constitution and Section 8 of Republic Act No. 6713, the Code of Conduct and Ethical
Standards for Public Officials and Employees. It includes a waiver authorizing the Ombudsman or
his authorized representatives to attain documents that may show assets, liabilities, net worth,
business interests, and financial connections from all appropriate government agencies.
All public officials and employees, whether regular or under temporary status, are required to
file a SALN.
A public officer or employee shall, upon assumption of office and as often thereafter as may
be required by law, submit a declaration under oath of his assets, liabilities, and net worth.
In the case of the President, the Vice-President, the Members of the Cabinet, the Congress,
the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of
the armed forces with general or flag rank, the declaration shall be disclosed to the public in the
manner provided by law.191
As expressed by Justice Malcolm in Cornejo v. Gabriel,192 the basic idea of government in
the Philippines is that of a representative government, the officers being mere agents and not rulers
of the people, one where no one man or set of men has a proprietary or contractual right to an office,
191
192
P a g e | 97
but where every officer accepts office pursuant to the provisions of law and holds the office as a trust
for the people whom he represents.
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Manuel Laserna, Jr., Philippine Legal Profession: History http://attylaserna.blogspot.com/2007/10/philippine-legalprofession-brief.html. Retrieved October 11, 2012.
194
Ibid.
195
Ibid.
196
I. Cortes, Legal Education in a Changing Society, p. 43.
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of Laws). This resulted in a dramatic decrease in law enrollment in 1960. For instance, at the
University of the Philippines, from an enrollment of 196 students in 1959, it dropped to 28 in
1960.197
The University of the Philippines started the law aptitude test and interview by a screening
committee as requirements for entry into its College of Law. In the 1960s to the 1980s the 4-year
Law Course (Ll.B.) was made up of 122 units which emphasize the bar subjects listed in Sec. 6, Rule
138 of the Rules of Court: Civil Law, Criminal Law, Remedial Law, Legal Ethics and Legal Forms,
Commercial Law, Political Law, Tax Law, Labor Law, Public Corporation and Public Officers, and
International Law. The course included non-bar subjects: Legal History, Legal Bibliography,
Statutory Construction, Jurisprudence, Trial Techniques, Thesis and Legal Research, Legal
Medicine, and Practice Court.
The sources of Philippine legal education are (a) Spain, which gave it the Roman Civil Law
and the Canon Law, (b) the United States, which gave it the English Common Law, and (c)
Indonesia (thru the Majapahit Empire and the Shri Visaya Empire), which gave it the Islamic
Law.198
197
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social commitment, selection of law students, quality of law schools, the law faculty, and the law
curriculum, mandatory legal apprenticeship, and continuing legal education. 200
It must be noted that it is the Supreme Court and not the Legal Education Board that
prepares, adopts, approves and implements the rule on mandatory continuing legal education
(MCLE)201, pursuant to the constitutional powers of the Supreme Court under Article VIII of the
1987 Philippine Constitution.
Conclusion
Certain sectors of society began to urge the Filipinization of the law (curriculum, textbooks,
laws, court decisions). In other countries the popularization of their laws in their own native tongues
was a normal rule of society, such as, for instance, in Indonesia where its national language, Bahasa
Indonesia, is the official medium of instruction in law schools, and where "the enshrinement of
customary law is part of the legal system".
In the words of former Supreme Court Justice Irene Cortez, who once served as the dean of
the UP College of Law: "Where law is written and taught in a foreign language, it becomes more
esoteric, its concepts more difficult to assimilate and retain. If it is difficult for those who undergo
the professional training for lawyers, it would be even more difficult for the ordinary citizen. There
are those of us in the Philippines who have begun to give serious thought to using our own language
in legal education.
More than 80 percent of the law faculty members are part-time teachers. They are underpaid
even in a highly subsidized state university such as the University of the Philippines. Indeed, those
who embrace teaching as a career takes the vow of poverty.
200
201
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Despite the financial constraints, a law teacher plays a noble and important role in the
training of future lawyers. The law teachers to be effective must endeavor for deeper understanding
of the law, through research and reflection. Through critical study, they also identify emerging
trends and areas for reform and contribute towards making law an instrument of social development.
Law teachers have principally assumed the critical and predictive functions in the legal profession.
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FINAL THOUGHTS
There are diverse school of thoughts and technical procedures when men speak of law.
Nevertheless, the primary goal of all these ideas is to bring human justice and regulate actions.
Everyone then must obey and adhere to it for it is said to serve the common good. Legal framework,
thus, is in the service of humanity, and this often makes possible the construction of moral and
political instructions of what one has to do. Citizens, as legal subjects cannot refuse the obligations
imposed by the law by being passive and defiant. Man cannot be content in justifying actions at his
own will without considering others. It is fundamental to such institutions to govern it and its
citizens.
The law departs from subjectivity and man cannot resort to actions by a yardstick of selfreference. It is important to know that man (as a subject of Laws) is situated in a dichotomized
world. A world of two realities where one is regulated by systematized objective laws. The other is
through daily experiences. Thus, the concept of legal systems, albeit its probity, being regulatory,
and its aim in bringing human justice, is not at all enclosed to these strict practices and is always
open to possible changes in order to meet the demands of time. It starts with
thinking/philosophizing on daily experiences, dialogues, and acting upon thoughts in a collective
manner. The law is not stagnant but dynamic. Philosophy or the power of THINKING is a catalyst
for continuing progress to pull the law out from the ivory tower and make it relevant to the common
tao.
-END-