Chapter 6

Lex Mercatoria:
From Custom to Law
Lex Mercatoria or Law Merchantwas a body of rules and principles laid
down by medieval merchants to regulate their deals.
- Originated the Written Obligatory, we now refer to as bills
of exchange, checks and promissory notes.
- From a body of customs, lex mercatoria was eventually
encoded into the laws of England through the Statute of
Merchants in 1283 and later in France through the Code
Commercial in 1807.
- Was first published in a book in 1622 by Gerard de Malynes,
titled as the Ancient Law Merchant
- It became part of common law in 1700s as mercantile
customs were cited by Englands Chief Justices Edward Coke
and William Murray.
Fair Courts- a special commercial courts along main trade routes
administered Lex Mercatoria.
William Murray- the first Earl of Mansfield
- Father of English Commercial Law
American courts and commercial codes, also inherited by the Philippine
Commercial laws, incorporated the Jurisprudence of Lord Mansfield in :
- Insurance
- Trademarks
- Partnership
- Common carriers
- Contracts
- Negotiable instruments
Lord Mansfield became Chief Justice of the Kings Bench in 1756
- Taught that any satisfactory system of commercial law must
be in harmony with the recognized mercantile customs of
other civilized nations
mercantile law is not the law of a particular country, but the
law of all nations.
- Sped up judicial system by submission of motions
- Admitted witness to prove the law of merchants and
considered it as a point of law.
- Supported free trade
- Equity should be applied by the courts
- Ruled that the slave trade is unlawful
- Brought forth the duty of uberrima fides- assumption of
good faith

Lord Mansfields Rule an old rule in construction that The declarations of

a father or mother cannot be admitted to bastardize the issue born after
marriage.
Why trading and industrialization did not thrive for the most part of Phil
History?
According to Villanueva, the Phil was not a commercial nation even
before the Spanish came. Most of the written and oral laws of barangays
and ethnic tribe were about family and religious matters, not commercial
engagements. Spanish colonization was essentially a missionary
enterprise. The thrust was the spread of religion. The country then did not
experience a financial system other that deficit spending.
Commercial Statutes were wholesale copies of American Laws including:
-

Corporation Law
Chattel Mortgage Law
Insolvency Law
Negotiable Instruments Law
Warehouse Receipts Law
Insurance Law
Salvage Law
Usury Law
Copyright Law
Law on Monopolies and Combinations
Business Names Law
General Bonded Warehouse Act
Bulk Sales Law
Carriage of Goods by Sea Act
Public Service Act
Securities Act
Law creating the SEC Commission

Chapter 7
Francis Bacon practiced law, served as speaker of the Parliament,
Solicitor General and Lord of Chancellor of Englands Queen Elizabeth I
and King James I.
- Father of Experimental Science
- Is a proponent of Inductive Method that paved way to the
Industrial Age
- Proposed that scientific work should be for charitable
purposes to alleviate mans miseries.
Inductive Method- to justify the use of precedents in common-law
unwritten laws.

-it treats Case repositories as evidence of unwritten

law, from which related cases are applied and logically turned into
principles.
In his Novum Organum, inductive method requires:
- Accumulation of the store of particular empirical
observations in the tabulation.
- Inductively infer lesser axioms
- Inductively infer middle axioms
- Propose most general of notions
Method science and law is similar to scientific method:
- Observe facts
- Record observations
- Amass a body of data
- Perceive the general law at work
- Test hypothesis
- If experiment affirms hypothesis,, arrive into a new law.
Bacon warned Four IDOLS:
Idols of the tribe- referring to illusions of appearances and reliance on our
primitive senses
Idols of the cave- referring to generalization of our limited cave
experience.
Idols of the market- the imperfections coming from the choice of language
and communication
Idols of the theater- flaws of philosophies, theories and speculations.

Exhuming the Evidence: Humes Presumptions and

Probabilities
List of Disputable Presumptions in Rule 131 of the Rules of Evidence
-

That a person intends the ordinary consequences of his

voluntary act
That a persons takes ordinary care of his concerns
That official duty has been regularly performed
That private transactions have been fair and regular
That ordinary course of business has been followed
That a thing once proven to exist continues as long as usual
with the things of that nature
That the law has been obeyed

Why these presumptions?

Because there are events that are more likely, probable,

customary, or regular in occurrence, although not necessarily and always
true. As such, these are only presumptions.
Why do we favor probabilities?
It is based on custom, that is, what we became accustomed based
on the evidence of past experience.
PROBABILITY and IMPROBABILITY
Anything and everything can happen against things we consider
customary. What we consider as causal events are mere habitual
occurrence or sequence of events and the sequence can always change.
There is always a chance that something else can happen, but the
frequency of something happening in the past affects our judgment of it
happening again.
We cannot speak of certainties or necessities, only probabilities
(chances are) or improbabilities (chances are not) . X does not have to
follow Y.; X is only more or less likely to follow Y because of REPEATED
EXPERIENCE, which is no guarantee.
Wittgenstein on the Game of Doubt
The criterion of common sense and healthy human understanding
are relevant in justifying what the Rules of Evidence refers to as
CONCLUSIVE PRESUMPTIONS.
Hinge Proposition doubts and suspicions on common-sense matter are
motivated.
If one really has a reason to doubt, then it must be
hinged on something else he already assumes on somehow certain.
Groundless Doubt- doubt on something that one has no good reason to
doubt.
Why does one doubts?
One doubts because he wants to advance a proposition he is
already certain of.
The presence of reasonable doubt means there is a crack in the evidence.
Certainty -we cannot just investigate everything, and for the that reason
we are forced to rest content with assumptions.
If you are not certain of any fact, you cannot be certain of the
meaning of your words either.

If you tried to doubt everything you would not get as far as

doubting anything.
The game of doubting itself presupposes certainty.

Chapter 8
Political Law:
Reform, Revolution, and Resistance
The Neo Classical Philosophers
Right- is a modern concept, brought about by libertarian revolutions and
inspired by reformist philosophers who believed in a government by
consent.
Social Contract- the fundamentals of society were brought about by
convention and agreements, tacit or explicit.
-Theories of social contract were to replace the divine rights theory
that justified the absolutism of monarchies.
Events that Inspired by the writings of the Enlightenment
Philosophers:
Signing of Magna Carta by King John of England
Glorious Revolution in England
French Revolution
American Revolution
Philippine Propaganda Movement
Niccolo di Bernardo Dei Machiavelli- son of Italian lawyer
- Was appointed administrator and chancellor of the
Florentine Republic in 15th Century Italy
Machiavellis Tips on How to Rule:
1) If the ruler cannot be good always, he must at least pretend
2) There are 2 ways of fighting: one by law, another by force
3) The leader should himself shower the favors but should delegate the
punishments

4) It is good to be loved and feared. But if the leader has to choose,

better be feared than loved, but not be hated
5) Punishments should be done all at once so that seldom felt will be
less remembered.
6) A ruler must be shrewd and swift to match the inconsistency of the
people and the political environment
7) If the ruler succeeds, the people are his. If he fails, they turn against
him.
Thomas Hobbes on Sovereign Immunity
Sovereign will either be an individual or a group of individuals. He holds
power from the people, the commonwealth, not for his own good, but to
maximize the interest of all.
This structure runs the risk of abuse but for Hobbes, the injustices of a
ruler are better than the injustices under the state of nature. Better the
abuses of one than the abuses of everyone against everyone.
Thomas More on Republicanism and the Family as the Basic Unity
of Society
A Familial State
In A Treatise on the Passion, More said because of the human tendency to
err, human beings have a special need for government.
Family- the first government in the natural society, where as free beings,
we are ordered to love and cafe for others.
In Utopia, a large family is the basic unit of society.
In Latin poems, a good ruler would be like a father to his children, rather
than a master to his subjects.
i
Pater familias- due care of a good father of the family.
Educated Conscience- the virtuous training to seek what is good even if
this will entail lanor and pain
Mores Advocacies for a Representative Government:
1) Rule of law
2) Belief in a higher moral law
3) Family values at the heart of a good governments
John Locke
Tabula rasa- the human mind is a blank canvas

Doctrine of Non Delegation- the legislative cannot transfer the power

of making laws to any other hands. For it being but a delegated power
from the people, they, who have it, cannot pass it over to others,
Jean- Jeacques Rousseau, in his The Social Contract opined that
man was born free but everywhere he is in chains. By this, he meant
that man is fundamentally good, but society can bind and condemn
people in unjust ways, yet society itself can make man free again.
Presumptions of innocence- puts the burden on society to prove the
guilt of an accused.
John Stuart Mill- member of the English Parliament
Harm Principle
The only purpose for which power can be rightly exercised over any
member of a civilized community, against his will, is to prevent harm to
others. He meant that, man is free to pursue happiness as long as he does
not harm others.
Utilitarianism- is the philosophy of pursuing pleasure and avoiding pain,
for the greatest happiness of the greatest numbers.
Mill claimed that once an obligation is assigned to a person, such as being
a family man, a soldier, a government official, or a debtor, he can be
punished for a breach of duty
Duty- as a thing which may be exacted from a person, as one acts a debt.
Without this exact and clear imperative duty, society must bear with any
constructive injury that a person may happenstance create in
exercising his liberties, in favor of the greater good of human freedom.
Perfect obligation- is one with a correlative right that can be demanded
by others.
Imperfect obligation has no corresponding right but a mere
beneficence or generosity that one is not bound to practice,
Thoreau
When does a revolution become a right?
It is the right to refuse allegiance to and to resist, the
government, when its tyranny or its inefficiency are great and
endurable.

Real Progress is the succession of governments from absolute to limited

monarchy, then from limited monarchy to democracy, then from
democracy to organizing the rights of every man from which the State
derives its authority.
Chapter 9
Labor law: Socialism And Communism
Labor rights
Minimum wage pay
Working hours
Leave benefits
Rest periods
Security of tenure
Collective bargaining
Infamous Communist and Socialist
Karl Marx
Josef Stalin
Vladimir Lenin
Mao Tse Tung
Fidel Castro
In a capitalist economy, private ownership is unregulated which
encourages hoarding and overproduction of goods.
-it maintains that labor rights and economic reform can be achieved
in a democratic process without resorting to Communism.
Superstructures of Established Politics, law, art literature and
religion
The system of reducing worker into a dispensable raw material, a
tool for production whose personal worth had been reduced into an
exchange value so that everyone had become nothing but a paid worker,
controlled by the bourgeoisie
Socialism is the conversion of private to public property, the first phase
of Communism.
A revolution is an Insurrection, an act of violence by which one class
overthrows another.
How does Marx define Religion?

Religion is the opium of the people that prevents him from confronting
his miseries in exchange for an imaginary after-life that he cannot even be
sure of.
Characteristics of Red Holocaust
Class liquidation
Confiscation of property and farmland
Social reengineering
Greatest recorded massacre
Death camps
Genocides
Famines
Communist revolutions combined death toll between 85 million and 100
million
Occurred in former Soviet Union under Stalin, China under, Mao Tse tung,,
Cambodia under Khmer Rouge
Henry Ford- an American Entrepreneur.
Contributions:
8 hours a day, five days a week work week
making his car affordable to the masses
sharing the profits to his workers who received double the minimum wage

The Cold War

Power struggle between the allies of Capitalist Britain and Us (phils) vs.
Communist Russia and China
Social Legislation
The aim of Social Legislation is Social Justice defined as neither
communism, nor depotism, nor atomism, nor anarchy, but the
humanization of laws and the equalization of social and economic forces.
Welfare-State Capitalism- It favors the provision of basic services and
regulation of industries but not complete control/ prohibition, or on the
other hand, Laissez-faire deregulation.
Worker- Control Capitalism- an alternative where workers, not the
state, will partly own the means of production by obtaining significant
shares.
Chapter 10

Everyone In: The postmodernism and the future of Law

The trend of law, in a more globalized, multicultural and diverse society, is
to get everyone feel they belong to society and to empower all citizens
regardless of status in the name of EQUALITY.
Postmodernism stress relativism and respect for opinions, values,
expressions, chance, difference and change, in contrast with modernism
Modernism emphasizes universalism, uniformity, purpose, form,
hierarchy, categories, structure and order.
The Darwinist modernist ideal of an evolved creature was the white
male caucasian or the Aryan Race. Where lesser evolved
humans would have to be exterminated so they do not perpetuate.
20th century is referred to as the century of women

Platos feminist workThe three Waves

First-wave Feminism (early 20th century)
- Or The suffragettes gained ground for political (to vote
and to be voted), domestic, and labor equality.
-

The first feminist were the Temperance and abolitionist

movements who called for prohibition of liquor, gambling,
and prostitution during the roaring 20s to stop the spread
of sexual diseases, the philandering of husbands, women
trafficking, the breakdown of families, and general moral
decay.

Saw women as morally superior to men and are thus

needed for cleaner politics.

Fought for property and custody rights and rights of women

of color

Maternalism was another term for earl feminist, which

exalts a womans capacity to care and nurture and to

advocate for child and maternal welfare, including maternal

leave benefits.
The Suffragettes, who revived the pro-life feminism
Susan B. Anthony
Alice Paul
Elizabeth Cady Santon
Second-Wave Feminism (began in the 1960s, continued into the 80s)
-

Womenss Lib
Pro-choice feminism
Collaborated with the Left and rehashed the movement into
a class struggle against men and patriarchal.
Believe that while we are born into a sex, which is a
biological given, gender, sexuality and sexual orientation
are cultural and can be constructed where ultimately, there
are no essential difference between women and men.
Emphasized social equality and reproductive
autonomy through the right of free love
Began to question the need for men, marriage and family,
rallying for divorce and lesbian households
Resisted the reproductive role by encouraging access to
contraception, sterilization and even abortion.
Parodied beauty pageants that reduced women into objects
of male fantasy
Objected to in vitro fertilization and surrogate motherhood
that reduce women into eggs and womb donors
They are also against pornography where men are
portrayed as dominant and women become mere sperm
receptors.

Leftwing Pro-choice feminists

Simone de Beauvoir
Emma Goldman
Kate Millet
Betty Freidan
Third- Wave Feminism (began in the 90s)
-

Emphasizes female empowerment

Girl-power feminism
Dropped the man-hate, male v female rhetoric that
women are victims
Celebrates female culture, girl style, celebrity women,
female sexuality, female social/ cyber networking, and
unique female experiences of pregnancy and motherhood

Maintain that there is no essential difference between the

sexes (egalitarian feminism)
Value differences and diversity among sexes and among
women themselves
Differences are turned into sources of identity
Recognizes scientific studies that point to fundamental
biological, psychological, and emotional differences
between men and women

Proponents of third-wave feminism

Camille Paglia
Rene Densfield
Julia Kristeva
Germaine Greer
Rights of Mother and Child
The States Commitment in the Constitution and to the UN Committee on
the Elimination of All Forms of Discrimination Against Women (CEDAW)
Women in Development and Nation Building Act of 1992
Anti-Rape Law of 1997
Anti-Violence Against Women and their Children Act of 2004
Solo Parents Act of 2000
Magna Carta of Women in 2009
Responsible Parenthood and Reproductive Health Act of 2012