I-E | LEGHIS | Dean Pacifico A. Agabin SYLLABUS FOR LEGAL HISTORY Dean Pacific A.

Agabin 2009-2010

The uses of history in Law A. Chapter II, ―The Methods of History, Tradition and Sociology‖, in Carelozo, The Nature Process (1923)


of the Judicial


Pre-Hispanic custom law A. Chapter 1, ―Pre-Conquest Society and Custom Law‖, in Fernandez, Custom Law in Pre-Conquest Philippines (1976) B. C. Chapter 2, ―Liability‖, Fernandez, supra. Chapter 4, ―Minimum Government‖, Fernandez, supra.

D. Manuel, ―The Evolution of the Concepcio of Property and Land Ownership Among the Manuvu of Central Mindanao, 65 Phil. L.J. 143 E. F. Chapter 8, ―Crime and Punishment‖, Fernandez, supra. Chapter 9, ―Remedies and Procedure‖, Fernandez, supra.

III. Roman Law and Spanish Colonization A. Chapter I, ―Ancient Codes‖ In Maine, Ancient Law B. C. Chapter II, ―Legal Fictions‖ In Maine, supra. Chapter III, Law of Nature and Equity in Maine, supra.

D. Chapter III, ―The Constitutionalism of Rome and Its Influence‖ in McIlwain, Constitutionalism: Ancient and Modern (1997) E. F. G. Agabin, ―The Philosophy of the Civil Code‖, 66 Phil. L.J. 1. Lynch, ―Land Rights, Land Laws and Land Usurpation: The Spanish Era‖ 63 Phil. L.J.82 Chapter VIII. ―After the Spanish Conquest‖, In Gamboa, Introduction to Philippine Law (1969) August 15

IV. Muslim Law in Southern Philippines A. Koesnoe, ―From Folk Law Towards Jusrists' Law‖, Vol.1, No.1, ASEAN Law and Society 36 (1986) B. Mastura, Harmonization of Adat Law vis-a-vis western Law within a Single Polity, ―Vol.1, ASEAN Law and Society 44 (1986)


Common Law and Common Concepts A. Maitland, ―Prologue to the History of English Law‖ (Reprint) B. C. Jencks, ―The Development of Teutonic Law‖ (Reprint) Pound, The Spirit of the Common Law (1921)

I-E | LEGHIS | Dean Pacifico A. Agabin Ch. 1. ―The Feudal Element‖ Ch. 2. ―Puritanism and the Law‖ Ch. 3, ―The Courts and the Crown‖ Ch. 6, ―The Philosophy of Law in the 19 Century‖ Ch 8, ―Legal Reason‖

VI. Modern Filipino thought of the law A. Majul, The political and Constitutional Ideas of the Philippine Revolution Ch III, ―On the Origins, Necessity and Functions of Government Ch IV, ―On the Obedience to Law‖ Ch VIII, ―The Malolos Congress: Legislative Supremacy v. Temporary Dictatorship

VII. Manifest Destiny and hybridization of Philippine Law A. Lynch, ―The Legal Bases of Philippine Sovereignty‖, 62 Phil. L.J. 279 (1987) B. C. D. E. Ch. 6, ―The Politics of Judicial review over Executive Action‖, in Agabin, Unconstitutional Essays, p. 167 (1996) Lynch, ―The Colonial Dichotomy: Attraction and Disenfranchisement:, 63 Phil. L.J. 112 Case: In re Application of Mac Shoop for admission to practice of law, 41 Phil. 213 Fernandez, ―Sixty Years of Philippine Law‖, 35 Phil. L. J. 1389 (1988)

Chapter II, “The Methods of History, Tradition and Sociology”, in Carelozo, The Nature of the Judicial Process (1923)

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The historical method, also known as the method of evolution, has an effect of making the path of logic clear. The directive force of a particular event‘s precedent may be found either in the events that made it what it is, or in some principles which enable us to say that it is what it ought to be. Development may involve either an investigation of origins or an effort of pure reason. In the development of principles, however, logic may take predominance over history. History, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future. There are certain matters where there can be no progress without history. For instance, feudal tenure was not conceived by any lawgiver; history conceived its system. Holmes: ―If we consider the law of contract, we find it full of history. The distinctions between debt, covenant and assumpsit are merely historical. The classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi-contracts, is merely historical. The doctrine of consideration is merely historical. The effect given to a seal is explained by history alone.‖ If history and philosophy do not serve to fix the direction of a principle, custom may step in. In these days, at all events, we look to custom, not so much for the creation of new rules, but for the tests and standards that are to determine how established rules shall be applied. It is not so much in the making of new rules as in the application of old ones that the creative energy of custom most often manifests itself today. General standards of right and duty are established. Custom must determine whether there has been adherence or departure.

I-E | LEGHIS | Dean Pacifico A. Agabin  A slight extension of custom identifies it with customary morality, the prevailing standard of right conduct, the mores of the time. This is the point of contact between the method of tradition and the method of sociology. Each method maintains the interaction between conduct and order, between life and law. Law preserves the moulds, which have taken form and shape from life. When social needs demand one settlement rather that another, there are times when we must bend symmetry, ignore history and sacrifice custom in the pursuit of larger ends. Logic and history and custom have their place. We will shape the law to conform with them when we may; but only within bounds. The end which law serves, the welfare of society, will dominate them all. Sir James Park: ―Our common law system consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents, and for the sake of attaining uniformity, consistency and certainty, we must apply those rules when they are not plainly unreasonable and inconvenient to all cases which arise.‖ Today, every department of law, the social value of a rule has become a test of growing power and importance. In some, the method of sociology works in harmony with the methods of philosophy or of evolution or of tradition. Those are fields where logic, coherence and consistency have to be sought as ends. For instance, ―liberty‖ is not defined. Its limits are not mapped or charted. Liberty was conceived of at first, as something static and absolute. But there are meanings approved of the by the people, determined by those who are most affected by the word‘s presence. Property, as well, though immune under the constitution, is subject to regulation. Therefore, courts are free in marking the limits of the individual‘s immunities to shape their judgments in accordance with reason and justice. Their standards, however, must be objective ones. There are some rules of private law which have been shaped in their creation by public policy, and this, not merely silently or in conjunction with other forces, but avowedly, and almost, if not quite, exclusively. These, public policy, as determined by new conditions, are competent to change.

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Chapter 1, “Pre-Conquest Society and Custom Law”, in Fernandez, Custom Law in Pre-Conquest Philippines (1976)  Custom Law – body of customs and usages dealing with liability in pre-conquest society o Liability – accountability, responsibility o For our ancestors, liability is based on fault, with or without intent. o Custom law consisted of unwritten rules preserved in songs and chants and in the memory of elder persons in the community who were consulted in connection with disputes requiring adjudication according to their ugali o There was an assumption that laws were complete and needed no addition or modification o Datus – executors of the law

Regional Diversity of Custom Law o Not one system alone flourished, but many o Ethnic groups had differences in their language, ways of life Regional political communities o Barangays – minuscule units o There was no single political organization which administered the system of law on a regional basis o Government was existing but it was diffused, not centralized Diversity within the regional community o Barangays applied and interpreted the received ugali in divergent ways o Datu – power was unchallenged and he undertook the functions of the judge, exercising criminal as well as civil jurisdiction o Murder and theft were considered public offenses General aspects of custom law o Each region was a political community with a separate system of custom law o Government was minimal o There was no specialized machinery of justice o Absence of mass of legal concepts and standards Secular Orientation o Custom law was distinctly secular o There was no organized religion in the sense of a church or sect with a particular creed o Religion was a concern of the family, not the community Functions of Custom Law o It is a primitive system, rudimentary in its precepts and archaic in its procedures o Task: regulation of the use of force in the resolution of conflicts

I-E | LEGHIS | Dean Pacifico A. Agabin  

Preservation of the Peace o Central function of the custom law was to preserve the peace Order of Power o Datu – chief of the barangay o Distinct roles  Judge – he undertook the redress of wrongs and the vindication of community interest by proceedings against malefactors and violators of peace  Leader – made crucial decisions of war and peace  Legislator – he legislated matters not dealt with bu custom law Order of Labor o Obligation of Service: two types  Obligation of the households in the barangay to render services to the chief  Servitude – imposed for inability to pay a fine or a debt Status in Custom Law o Status was largely dependent on wealth and birth  Principalia – had the most wealth in the community  Common households – modest resources  Dependents or alipin – had little or none o Illegitimates had no rights o Women enjoyed substantial equality with their menfolk – they ad the right to own property

Chapter 4, “Minimum Government”, Fernandez, supra.

I. Barangay as Political Community


barangay consisted of the more or less autonomous households, usually bound by ties of kinship and dominated by the household of the datu


territory generally extended to all the lands and water areas under the control of the households belonging to it, which were regarded as communal and available for use by all the households in the barangays


Political character derives from the recognition of the authority of the datu

II. Minimal Government


Government within the barangay was minimal because of:

o o o

household organization was virtually self-sufficient and autonomous scarcity of resources barangay community did develop specialized machineries of government


2 functions generally discharged to the barangay a political organization o Maintain its existence by resisting and repelling invasion by outside enemies o Preservation of peace and order within its territory through methods of mediation and conciliation of disputes o (in better integrated communities) Prevention or redress of wrongs though public authority of the datu

I-E | LEGHIS | Dean Pacifico A. Agabin III. No Monopoly of Force

* Efficacy of government in modern states rests on the monopoly of force. Only the government, though duly authorized agents, can use force to compel obedience or exact compliance.


Barangay communities cannot establish monopoly because of its primitive organization and resources No central authority in the barangay is strong enough to disarm every resident and repel by itself attacks from the outside. During emergencies that threatens the community as a whole,

IV. Principle of Self-Help


In the barangays, it was the custom for each freeman to carry weapons and to use of them for his own protection, or advancement of his own interests. Under conditions of pre-conquest society, physical prowess and valor in the use of arms was essential to survival.


Skill and valor in the use of arms was highly prized and acts of bravery much admired. It was the custom to sing praises of warriors who died in battle. Such attitude reflect:

o o o

a condition of more or less frequent strife essentiality of military preparedness realization on the part of all members of the community that each household was entitled to resist or avenge any provocation or invasion of its rights and that it had the capacity and willingness to do battle; retaliation was an effective deterrent to unlawful aggression

V. System of Obligation in Barangay


Barangay consisted of more or less autonomous households, usually bound by the ties of kinship Power structure in the shape of a pyramid – ―status of subordination of one household to another carried, by well-established custom, reciprocal rights and duties‖



Dominant household provides protection, security, and assistance to the households attached to it. Subordinate household render customary services ti tge dominant household when needed.   

(apex) household of the datu (next to datu‘s household) petty chiefs in the barangay – acknowledged the primacy of the great chief freemen (timawas) – attached to the household of a chief * in smaller barangays – only 1 chief to whom all freemen were subordinate

In communities where the authority of the datu was not fully consolidated. The Datu as Captains in War - Duty of the datu to act as ―barangay‖ captain in war. took cognizance of such disputes on petition of the aggrieved party for protection from violence. he could legislate freely. The Datu as Judge. Status of Datu Status of Datu is more akin to that of a chieftain rather than a king. valor. Prestige in the community gained only when by his prowess. endeavored to have the parties agree on a settlement - Generally. Datu as Legislator - Rapid social and economic changes brought by religion (like the penetration of Islam in the South and middle portions of Luzon. direct and lead course of battle - Can exercise emergency powers over manpower and resources of the barangays IX. for redress of an injury.I-E | LEGHIS | Dean Pacifico A. not title by inheritance was the seal of every new datu‘s claim to power. . - Real basis of power was not the office but the person himself. Pre-conquest society did not achieve that degree of centralization and institunalization of authority which is the characteristic of royalty in its myriad forms. not traditional VII. the production of saleable commodities. enforcement of a claim such as unpaid debt X. In places where these changes were most felt. - Communities where the power of the datu was undisputed. Agabin VI. wealth or wisdom he showed himself able to provide protection or compel obedience. to plan. Arbitrator and Mediator - Adjudicate disputes among households. Custom. - Authority is charismatic. Merit. through interpretation of custom law. the system of custom laws embodied in the ugali was strained. including gold and other precious metals). the existing rules had to undergo corresponding changes. it seems did not ordain permanent adherence to any particular datu. Prerogatives of the Datu - Veneration and respect Customary services o Services required in the interest of the community as a whole o Services in the interest of the datu and his household VIII. demand for more and more imports from China and other countries of the East. resort was probably made to accommodation.

* They had tree-houses or built a kuta under the house in times of feuding or little wars. Geographical. eye for an eye. demographic. Agabin Manuel. in the raising of the bridewealth and in the payment of damages in the settlement of wrongs and delicts. though retaliation was practiced up to recent times * It became characteristic of the village government to develop a multi-datu system. L. Carabaos and horses were used in their trading activities. 65 Phil. “The Evolution of the Concepcio of Property and Land Ownership Among the Manuvu of Central Mindanao. later developing leaders or bayanis who became recognized in their respective areas of influence Datus. 2.I-E | LEGHIS | Dean Pacifico A. each village having two or three or more datus depending on the size of the population . and so also blacksmithing * They were slash-and-burn agriculturists mainly (in 1956) and they still practiced food gathering activities which may be considered supplementary ways to the production of the staples they relished. Politics and governance Time Before the 20 century th Dispute settlement methods Settle disputes mainly by retaliation.J. addressed either by their personal names or by prefixing the term datu before their names After trade goods were acquired Law of damages. The Manuvus‘ were using barkcloth from time th immemorial until the middle of the 19 century when weaving was introduced. INTRODUCTION The Manuvu’ 1. tooth for a tooth Governance Governed by old men. and clearings or two-thirds virgin forest * The Manuvu‘ main staples were corn and sweet potato. 143 I. etc: Dallag plateau – – situated on the divide splitting Davao City and Cotabato it is at the east central part of the territory occupied by the Manuvu‘ people (who in pre-WWII years were in possession of this vast territory occupying southeaster Bukidnon and Northeaster Cotabato and wester Davao) * The Manuvu‘ habitat in 1956 was mainly forested. grassland.

in the meantime that two days have not lapsed he has an inchoate right to the behehive. any person who ignores the sign below the tree and brings down the birdies or eggs. c. ownership attaches right away. * For example. when someone sees a nest (with birdies and eggs). The right of ownership to the beehive lapses after the day following its discovery. this lapse of the right gives other the opportunity to haul down the beehive. ownership attaches to beehive the moment it is marked by the discoverer. II. During his absence. mine kekaw is your. b. * From the time the tree is marked and the eggs or birdies are taken down. is by CUSTOM LAW. * In Manuvu Law. anything that a man makes belongs to him The by-product of any artefact belongs to the owner of the latter. A person caught another in the act of taking his ―potential property‖ can kill the latter. cleaning the trees‘ surrounding area or cutting a branch and stick it to the ground with the end pointing to the nest (called tuwos in Manuvu‘ language which indiciate discovery and the prior claim to the ownership of the eggs or birdies. his benevolent policies. but even so. theirs * Since language goes to the very origin of culture. for anyone other than the discoverer to take away the eggs or birdies is a thing and the wrong down has a sanction. . Case 2 – Taking the fish from the trap and removing the latter to another place is theft. his first move is to show to the outside world the fact of his discovery by: a. Agabin * Traders became effective datus because of the accumulation of wealth as their influence facilitated the settlement of disputes * The greatp art of Manuvu‘ people became consolidated into a tribal organization after the recent war when Datu Duyan succeeded in gaining recognition through his knowledge and experience gained during the prewar and occupation years (WWII). ORIGIN OF THE CONCEPT OF PROPERTY AND ITS DEVELOPMENT * In Manuvu‘ language:    kaddi means my. and connections with some governmental officials. It is the hauling down of the hive by its discoverer that perfects his right of ownership. inferentially. THERE IS NO ACTUAL POSSESSION. ONLY POTENTIAL POSSESSION. and damages are demandable against person who haul it down. guilty of theft.I-E | LEGHIS | Dean Pacifico A. yours kandan is their. two fishermen settle the case between themselves without bloodshed. a gong is offered by the thief and this was acceptable reparation. the PAYMENT OF DAMAGES. Case 1 – Panakaw (theft) is committed when a marked beehive is hauled down. this linguistic evidence is of primal import in tracing the origin of the concept of property (material or non material) as something that can be possessed.

Upon their return. When the yield became minimal or poor. So. * Some element of ownership is obviously lacking. or sharpened bamboo sticks also become property. that is. In other words. * In nomadism of their ancestors. as the settlements grew into villages. * The charms and bandoliers they perfected were a special kind of property. this was the pattern of land assignment for the reason that the settlement or village became owned by the band or inhabitants. which is given right away plus the performance of a ritual so that hunter would be favored by the deity of wild animals once more. some with distinction to become bahani (a cognrate of the Tagalog term bayani). shields. this was considered an intrusion. inter-village law did not allow the trespass over the village territory. or wanting – possession. Agabin Case 3 – Hunting dog killed by a trap: owner demands compensation. * Because of feuding proclivities of the Manuvu‘ in their law system. they were total strangers to the band or village. they moved to another old place again. blowguns. exclusive of any body else‘s control. should there be such other band or group. greater panavuk (damages) demandable if the presence of traps were not announced. the control over the articles must be complete. For example: a. According to datus and old inhabitants. inter-village relationship was unavoidable. No other groups was supposed to occupy the Manuvu old spots and places. spears. * As villagers grew in population. * Husbands came from the outside communities or ethnic groups. If a citizen from another village ever attempted to cut rattan from the side of the other village. his bolo could be confiscated by any villager of the latter . III. they moved about in circles occupying one place at a time then giving back to the old places to clear the area once more and plant. there developed among them warriors.I-E | LEGHIS | Dean Pacifico A. They don not claim ownership over particular areas they have covered from year to year or from season to another. religion and law. Some of these charmstones were used by warriors and hence they were regarded as priceless possessions. * The apus or old men were the ones who assigned plots or fields to till or area to open while in residence which may be for the duration of the lives of their parents-in-law. LAND OWNERSHIP AMONG THE MANUVU’ * In a state of nomadism. This leads to adding male population to the band. * The articles they made for defense or offense such as bows and arrows. land ownership can develop only in the sense that agricultural peoples have concepts about land.

6. * Another way of acquiring exclusive ownership of a small portion of land by public declaration – la:w. they belong to man. b. 7. the Manuvu‘ supreme god. the village set-up developed an authority system that was characterized by a number of datus exercising authority over the village – this is called multidatu system. exclusive hunting rights may be so declared and such declaration is recognized by other villages Land can also be owned by occupancy in pioneer areas or by assignment by the old men of the band or village. injured feelings. Portions of a stream may be owned by la:w and this property can be passed on to heirs. but if he had already disabled the animal which crossed the stream and this animal was speared to death by another man in the other side. Agabin b. are placated with gifts. waters and so on is property Everything that he catches with devices such as traps. and by datus later. they give gifts. 2. and this was done by open public declaration. 5. CLASSIFICATION OF MANUVU’ PROPERTY AND OBSERVATIONS The following are considered property: 1. 16. When people want favors. * The Manuvu concept of property came from the general belief that all things came from Manama. but the intention is to hasten payment. hunting gears such as by using bow and arrow. 15. grass. The good ones were made husbands and wives c. 8. There were villages who made canals and built dams across the shallower streams todiver the water into a side hole to convert the same into some kind of fishpond. etc. 10. The ugly ones were sacrificed in their ceremonies Anything that a person acquires for services done is property Damages are sources of wealth. spear. A husband wishing to take a 2 wife is likely to court his first wife with gifts to obtain her permission. but the moment they are caught. properties acquired by inheritance involve all kinds of properties. cat. where for indebtedness a person in the household may be seized for failure to live up to a contract. the carcass was divided equally between the two hunters. Sometimes the person so seized is made to work. those who came from the other villages or ethnic groups.I-E | LEGHIS | Dean Pacifico A. A hunter who chased a deer across the stream-boundary incurred trespass. The puppies and kittens soon get portioned among relatives or friends. IV. nd * As the old men came to be called datus in the 2 half of the century. plants. Irritation. Anything acquired by exchange or barter is property. blowgun. they belong to god and his caretakers (diwatas). c. 4. Seizure of property is recognized in the custom law More serious is dakop (the equivalent to Tagalog dakip). instead he gave ―tapuk ta langossa‖ because the theif‘s calf was pierced by a trap missile and blood had been spilled. 3. Articles and animals acquired by trading were valuable property. Such artificial body of water became exclusive to the builder to use. Anything that is received as give is property: nd a. Slaves were made to work b. Some properties acquired in a special way may not be sold or used in certain ways. 12. and as the villages grew in population. trees. and chicken. but apparently owner didn‘t demand damages. It is now the datus who allotted lands to foreigners. 13. Person captured in ―little wars‖ or seized during raids became property – the practiced slavery: a. though this is limited to the dog. Case 4 – Datu takes a band of bananas from an old field or kamot belonging to another villager during famine. in the custom law this act is theft. . While the fish and wild animals remain in their habitat. 14. 17. Everything that a Manuvu gathers or catches from the ground. 11. 9. is property Anything that he makes or manufactures Anything that he plants and produces is his own or belongs to his family Animal that he raises.

or the bulk was endowed to his first born son (this is pusaka‘). jewelry such as the kamai‘. Agabin * Terms: a. Chapter 8. * The wealth. impon – articles that are worn on the body butang – household articles tamuk – includes abaca cloth. if crime is committed by a chief. Sanctions preponderantly in the forms of pecuniary fines Penalty was most humane and reasonable o Death was imposed only for universally acknowledged heinous crimes o Penalty generally consisted of a fine graduated according to the nature of the offense. sanction imposed was nominal if imposed at all 3. gongs animals such as the horse and carabao. and conduct which prejudiced only the interest of a particular person or household Features of pre-conquest criminal laws: 1. “Crime and Punishment”. according to the rank of the wrong doer and the rank of the victim. the gravity of the wrong. Aristocracy or the ruling class received highly favored treatment under existing law. he will be killed by other chiefs who intervened . CORPORATE OWNERSHIP became the rule. capture and kill the culprit o If the offender was not captured but later surrendered or captured by another party. At marriage the bridewealth was distributed among her parents and closer relatives. Upon permanent settlement became the patter. and others * In the family there is separation of property between husband and wife. and those who undertook the capture and punishment of the culprit 4. that the father accumulated during his life was either divided equally amongst his children and wife. and from their INDIVIDUAL or FAMILY OWNERSHIP. Principal prohibitions were concerned with the values of personal security and property. and the rank of the wrong-doer as well as that of the offended party. Ancient procedure of self help for capital punishment Death sentence was imposed in two ways o Relatives of the offended party hunt down. however.I-E | LEGHIS | Dean Pacifico A. Conversely. - distinction was made between conduct which was harmful to the community itself. the pervading concept is DIVINE OWNERSHIP. Servitude was imposed in case offender was unable to pay fine No resort to torture. supra. * With land. Harshest penalties were imposed if the victim for were a chief. proceeding to KIN GROUP OWNERSHIP when bands roamed the country side. b. Distinctions according to rank Considerable variation was universally practiced in the imposition of penalty. Protection of secular values Religion received virtually no recognition or protection from pre-conquest criminal law. 2. and whatever she acquired during marriage she usually passed it on to her parents. Fernandez. c. harsh labor or incarceration Fine was divided between two groups: the aggrieved party or his heirs.

Agabin A man found guilty of murder may evade death penalty if he had the means to pay a heavy fine or if he offered himself as an alipin and the offer is accepted by the wronged party Chapter 9. Oaths   Underlying all their oaths taken in connection with litigation. Through the terrors of supernatural retribution. For dispute settlements. the authority was consolidated in the datu. Religion and Justice    System of justice in pre-conquest society was deeply rooted in religion. and adjudication was his sole responsibility. was the supernatural belief that deities represented by objects of common experience (sun. three techniques were used to settle disputes: a) mediation and conciliation. within or among barangays. Procedure in Contested Cases    A trial or hearing of the cause is held. Foremost was the oath. Development of Judicial System    At the time of the conquest. to distinguish the true from the false declarations made under oath. The proceeds of judgment will be divided into three: a) to the judge or chief. by their omniscience. and a seal of guilt if he was injured during the ordeal. If the stolen item was in any of the bundles. they become entitled to part of the recovered property. intermediaries were employed to a)prevent humiliation and loss of face consequence of refusal in face-to-face dealings. for which service the affiant delivered or placed his body at the disposal of the deity. supra. primitive worship lent substantial assurance of truth to declarations made in the course of litigation. civil and criminal. consisting of testimony and declarations from both sides. The function of the oath was t reinforce belief in the declaration to which it relates by invoking some deity as guarantor of its truth. it appears to be part of established procedure that the chief or the judge should do his best to effect a settlement. Power of Adjudication    Barangays were still in varying stages of integration. based on their influence and knowledge of the established ugali. In case parties are willing to settle the dispute but could not reach an agreement. in which the stolen article could be hidden. common friends of the warring parties undertook to bring about reconciliation. Most of the time accused were found guilty because they took refusal to undergo the ordeal as an admission of guilt. and c) to the successful litigant. In transactions among households. Its central assumption was that the gods had the power and willingness to intervene in human affairs for the punishment of the wicked and the protection of the innocent and just. . the chief joined the winning party in enforcing the sentence. b) the witnesses of the winning party. Here we see the principle of compensation and reciprocity of work.) or objects of dread (crocodiles) were enabled. In case the losing party resisted. Sentence was executed without delayed. whether of cloth or otherwise. b) arbitration. and c) formal adjudication. and b)greatly enhance the chances of a successful transaction. etc. the chief usually shared authority with the old man of the barangay. Witness testimony was vital. an impartial person was chosen to adjudicate. Even in cases that have been formally initiated by the aggrieved party. Another survival was the trial by ordeal.I-E | LEGHIS | Dean Pacifico A. civil as well as criminal. In less integrated barangays. each suspect was required to bring a bundle. These bundles would be co-mingled and opened. it would be returned to the owner and the proceeding would end there. Determination of Guilt by Ordeal or Magic  First. Fernandez. “Remedies and Procedure”. moon. to be chastised in case the deity was made party to a false declaration. The outcome of the suit was apparently determined by the weight of evidence as measured by the number of witnesses in favor of the cause. Elements which were clearly of magico-religious derivation had survived in the crucial aspects of the judicial process. Techniques of Settlement    In case of a great wrong. These intermediaries were rewarded for successful transactions. In the barangays where integration has proceeded the farthest.

I-E | LEGHIS | Dean Pacifico A. themises. Chapter I. The Themistes. Kings are spoken of as if they had a store of Themises ready to hand for use. or had caused disruption in the barangay. But unhappily there is a law of development which ever threatens to operate upon unwritten usage. and feeble members occurred in the series of hereditary kings. In case one was sentenced with death. The same is true not only for Rome but even for society in the communities of the further Asia. but the progress of thought no longer permits the solution of particular disputes to be explained by supposing an extra-human interposition. suspects will be given candles of equal length and weight. and vengeance was not exacted before prescribed time elapsed. We have in fact arrived at the epoch of Customary Law. was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. There is some evidence that the races which were subsequently united under the Persian monarchy. The difference. the royal power decayed. Or. successions. but their relative place in civilization appears to have been exceedingly similar in general character. A command prescribes only a single act. and at last gave way to the dominion of aristocracies. to have the exclusive possession of the principles by which quarrels are decided. . What the juristical oligarchy now claims is to monopolize the knowledge of the laws. should a suspect refuse. It must not for a moment be supposed that the refined considerations now urged in favor of what is called codification had any part or place in the change described above. causing the term ―law‖ to be applied to mere uniformities. Thus. The connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to superhuman dictation still shows itself here and there in the claim of a divine origin for the body of rules. that Themistes are more akin than to laws. and similitudes. A true law enjoins in all the citizens indifferently a number of acts similar in class or kind. all had the heroic age and then their age of aristocracies. courage and wisdom. Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which obtained them. and the first whose candle burns out will be declared guilty. such as plunging suspects in a river. and a better security for its accurate preservation. Inscribed tables were seen to be a better depository of law. Stage 3: Era of Codes The Twelve Tables of Rome are the most famous specimen of the ancient codes. the first to surface is the guilty party. The customs are of course obeyed by the multitudes who are incapable of understanding the true ground of their expediency. the codes were certainly in the main a direct result of the invention of writing. Or. as the impression of the monarch‘s sacredness became weakened. a stone has to be retrieved in the middle of boiling pot of water. therefore. are the awards divinely dictated to the judge. Though democratic sentiment may have added to their popularity. and it is to commands. and who are therefore left inevitably to invent superstitious reasons for their permanence. is that in the East aristocracies became religious. Composition    Offenders could pay established fines in gold or jewels. the relatives have the duty to accept fine in lieu of vengeance. Laws engraven on tables and published to the people take the place of usages deposited with the recollection of a privileged oligarchy. A process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable. the judgment was assumed to be the result of direct inspiration. he was guilty. he could pay a fine in order to live. The ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing. however. and those which peopled the peninsula of India. in the West civil or political. the datu adjudicated for them. but it must be distinctly understood that they are not laws. there were several trials. Ancient Law Stage 1: Age of Heroic Kingship When a king decided a dispute by sentence. where the offender succeeding in evading avenging relatives. than the memory of a number of persons however strengthened by habitual exercise. Even offenses subjected to vengeance had to be settled by composition. Stage 2: Era of Customary Law Heroic kingship depended partly on divinely given prerogative. “Ancient Codes” In Maine. Gradually. but judgments (or ―dooms‖ in the case of Teutonic law). Agabin  If the item wasn‘t there. Should they disagree. and this is exactly the feature of a law which has most deeply impressed itself on the popular mind. Although this occurred of course at periods long anterior in point of time to these revolutions of the Italian and Hellenic worlds. and partly on the possession of super-eminent strength.

Unlike the courts of law. Nonetheless. Moreover. in nubibus (in the clouds). or the answers of the learned in law. when in truth he was a foreigner. Equity of Rome 1 1 The High Court of Chancery was the court that developed from the Lord Chancellor's jurisdiction. of an amplitude sufficient to furnish principles which would apply to any conceivable th combination of circumstances. according to equity or fairness rather than according to the strict letter of the law. its operation has been modified. coherent. Legal fiction is any assumption which conceals that a rule of law has undergone alteration. No one openly admitted that any interpretation of it. Perhaps there is some truth to this as 13 century judges secretly borrowed from Roman and Canon laws. the Lord Chancellor had jurisdiction to determine cases. has in the foregoing chapters been denominated Equity. Chapter III. and derives its materials from several heterogenous sources. Fact is that the law in both cases has been wholly changed but the fiction is that it remains what it always was. . The system which obtained its ingredients from these various quarters. we see that the new decision has modified the law. supra. equity. Equity in England The jurisprudence of the Court of Chancery . supra Law is stable but societies are progressive. A clear addition has been made to the precedents. and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse. It satisfied the desire for improvement but at the same time did not offend the superstitious disrelish for change. however eminent the interpreter. varied a good deal at different periods of the Roman jurisprudence. To address this. The Roman law also influenced the ruling of the Court of Chancery. and legislation. Nonetheless. How legal fiction worked in the English courts: In adjudicating cases. How legal fiction worked in Roman law: Responsa Prudentium. such for example. which heavily influenced equity. the King‘s judges must find and apply the most reasonable rule they can. it was believed that all legal language adjusted itself to the assumption that the text of the old Code remained unchanged. Yet the moment the judgment had been rendered. on behalf of the King. although sometimes two of them are seen operating together): legal fictions. very early obtained currency both in the Roman State and in England. “Legal Fictions” In Maine. many chose to believe that somewhere. Law of Nature and Equity in Maine. Such a body of principles. symmetrical body of English law. failing a specific rule already ascertained and fitting the case in hand. Problem with legal fiction is the difficulty in knowing whether the rule which is actually operative should be classed in its true or in its apparent place. was greatly controlled in its growth by the necessity imposed on it of conforming itself to the analogies of the common law but it has always answered the description of a body of comparatively novel legal principles claiming to override the older jurisprudence of the country on the strength of an intrinsic ethical superiority. existing in any system. English Courts may only apply old principles. which were rigidly based on formal causes of action. was safe from revision on appeal to the venerable texts. The greater or less happiness of people depends on the degree of promptitude with which the gulf is narrowed. there existed a complete. Fictio in old Roman law is properly a term of pleading. which bears the name of Equity in England is extremely complex in its texture. Examples: English case-law and Roman Responsa Prudentium as both resting on fiction. Disadvantages: Legal fictions are the greatest of obstacles to symmetrical classification. as an averment that the plaintiff was a Roman citizen. The theory of a set legal principles entitled by their intrinsic superiority to supersede the older law. Advantages: Fiction is particularly congenial to the infancy of society. The early ecclesiastical chancellors contributed to it from the Canon law. Even if its letter remains unchanged.I-E | LEGHIS | Dean Pacifico A. Agabin Chapter II. law is brought into harmony with society through the following instrumentalities (in historical order.

which was not civil law. and no distinction in essence could ever be established between them. and taken its first steps towards civilization. when from an ignoble appendage of the Jus Civile. Roman 3 lawyers refused to decide the new cases by pure Roman Civil Law or Jus Civile. What was the exact point of contact between the old Jus Gentium and the Law of Nature? The author believes that they touch and blend through Equity. To live according to nature came to be considered as the end for which man was created. and in part of their disinclination to given the foreigner the advantage of their own indigenous Jus Civile. the Jus Gentium came to be considered a great though as yet imperfectly developed model to which all law ought as far as possible to conform. and in fact. Agabin In the early Roman republic. . There did come a time. Nonetheless. All nations who are ruled by laws and customs are governed partly by their own particular laws. the Fiction of Adoption which permits the family tie to be artificially created. Nonetheless the author states that at a particular stage of social progress. is by that word any body of rules existing by the side of the original civil law. Legislation Equity. After Nature had become a household word in the mouths of the Romans. The circumstances of the origin of the Jus Gentium are probably sufficient safeguard against the mistake of supposing that the Roman lawyers had any special respect for it. neither the interest nor the security of Rome permitted the foreigner to be outlawed. The law which a people enacts is called the Civil Law of that people. fictions are invaluable expedients for overcoming the rigidity of law. Aside: Many such as Bentham criticize fictions. Equity in Greek is the principle of equal or proportionate distribution. Law common to all Nations. The difference between them was entirely historical. is simply the Just Gentium or Law f Nations seen in the light of a peculiar theory. political disfranchisement. Moreover. Perhaps this is the removal of irregularities which went on wherever the praetorian system was applied to the cases of foreign litigants. they set themselves to form a system answering to the primitive and literal meaning of Jus Gentium. the belief gradually prevailed among the Roman lawyers that the old Jus Gentium was in fact the lost code of Nature. To live according to nature was to rise above the disorderly habits and gross indulgences of the vulgar to the higher laws of action which nothing but self-denial and self-command would enable the aspirant to observe. 2 The instability of society in ancient Italy. even though protection should be purchased at the cost of heavy taxation. without one of them. to a class which did not necessarily consist of citizens. In other words. and which the best men were bound to compass. founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles. it is difficult to understand how society would ever have escaped from its swaddling clothes.I-E | LEGHIS | Dean Pacifico A. Equity in Latin is leveling. the principle of the absolute exclusion of foreigners pervaded the Civil Law no less than the Constitution. 2 Legal Fiction. It was therefore probably half as a measure of police and half in furtherance of commerce that jurisdiction was first assumed in disputes to which the parties were either foreigners or a native and a foreigner. The first was an equal administration of civil laws among the citizens. and partly by those laws which are common to all mankind. The Jus Naturale. composed as it was in great measure of robber tribes. The inference from this belief was immediate that it was the Praetor‘s duty to supersede the Civil Law as much as possible by the Edict to revive as far as might be the institutions by which Nature had governed man in the primitive state. Equity. Still. or Law of Nature. and that the Praetor in framing an Edictal jurisprudence on the principles of the Jus Gentium was gradually restoring a type from which law had only departed to deteriorate. It is remarkable that the equality of laws on which the Greek democracies prided themselves had little in common with the equity of the Romans. 3 The Romans described their legal system as consisting of two ingredients. It was the fruit in part of their disdain for all foreign law. This crisis arrived when the Greek theory of Law of Nature was applied to the practical Roman administration of the Law common to all Nations. however. that is. gave men considerable inducement to locate themselves in the territory of any community strong enough to protect itself and them from external attack. The expedient to which they resorted was that of selecting the rules of law common to Rome and to the different Italian communities in which the immigrants were born. and much social humiliation. but that which natural reason appoints for all mankind is called the Law of the Nations. the last implied the applicability of a law. at no period of Roman history was foreign trade entirely neglected. the next instrumentality by which the adaptation of law to social wants is carried on.

please bear in mind that the article posits such resultant connection of Roman constitutionalism to English common law. is what the people orders and has established. as Gaius says. had no ulterior authority except such as was given by the professional repute of the magistrate who happened to be in the office for the time. but then these enactments are indebted for their binding force to the authority of the legislature and not to that of the principles on which the legislature acted. Constitutionalism: Ancient and Modern (1997) Note: The article tries to elucidate the influence of the Roman constitutionalism to the present common law system of England. . the enactment of the whole people. Though validity of such were doubted. Chapter III. though it must given the full force of a lex (legis habet vigorem). the will of the Emperor is not lex in itself. that the will of the Emperor duly expressed should receive the obedience owing to a lex.I-E | LEGHIS | Dean Pacifico A. so that they are much less aptly compared to a permanent judicature. Agabin Unlike legal fiction. Properly speaking. Justinian‘s Institutes defined it as ―what the Roman people was accustomed to establish when initiated by a senatorial magistrate such as a consul‖ Nothing whatever was said concerning the authority of unwritten law or custom (as what is practiced in England) – lex stands first. the Institutes of Justinian somewhat vaguely say. Equity. or the Parliaments of Monarchical France. as most of the legal scholars have opined before. “The Constitutionalism of Rome and Its Influence” in McIlwain. while the authority of every other form of Roman legislation invariably depends upon its relation to lex. Its most important thesis though is that Roman constitutionalism proposes that power comes from the people rather than the absolute will of the ruler. differs from legislation in that its claim to authority is grounded not on the prerogative of any external person or body but on the special nature of its principles. There were magistrates indeed but the tenure of magistracies was but for a single year. to which it alleged that all law ought to conform.definition  As per Justinian‘s Institutes. Lex .    Decrees of the Senate were never leges. there was no institution at Rome during the republic analogous to the English Bench. quoting Ulpian. Comparison of English and Roman adjudication English –authority rested on the bench Roman – authority rested on the bar The decision of the Roman tribunal. Hence. Legislation may be dictated by equity. though conclusive in the particular case. ―a command of the emperor in due form is a lex‖. in the course of time ―it seemed just (aequum) that the Senate should be consulted‖ in place of the populus. because the latter had become too great in number to meet for purposes of legislation. Earlier writers. All throughout the outline. Gaius in particular. The Emperor himself receive his imperium by virtue of a lex (per legem) Lex. equity‘s interference with law is open and avowed. on the other hand. the Chambers of Imperial Germany. but in time came to be accepted in place of lex (legis vicem optinet).

because the rogation contains the exact provision which the people turn into law when they accept it by their vote. they rather stretched it over to new circumstances. like fiction. th th  The legal changes in the 12 and 13 century England and in the later centuries of Roman Republic came to be the work of jurist rather than of legislators.   Strict law tends to become a fiction.  Convention. and the people alone. However. In like fashion the jus gentium of Rome consisted of the legal principles ―common‖ to the Italian states which Rome‘s expansion merged in the Roman judicial system. However. The most fundamental likeness of Roman and British constitutionalism is a likeness resulting from a similarity a similarity of conditions which made English law a ―common law‖. by the 2 century AD. so continuous over so long a period. Equity  There is probably no other social revolution in recorded history as important. as this evolution traceable step by step in the sources of Roman private law. when legislative action was infrequent or even unthought of. these judicial fictions were the usual means by which judges tried to keep the law abreast of the times. One of the most marked characteristics of judge-made laws was the great abundance of legal fictions since as magistrates cannot change the law. is only that part of jus ―quod ad statum rei Romanae spectat‖. while all the individual citizens alike participate in the public. equity has become the important fact. played a large part in the development of Roman constitutionalism. as per Justinian‘s Institutes. and made Roman law the law of the Italian peninsula. it‘s in their incidence where the difference lies  The sole difference between them lies in the fact that private rights affect private individuals exclusively.I-E | LEGHIS | Dean Pacifico A. so complete.  The most effective safeguard of the rights of individual against individual was ultimately found in the guarantee of the people to protect these rights. like decrees of the Senate. has the effect of lex without be such per se.  Strict law v. Enactment is termed ―rogation‖.  The common law of England is an English jus gentium compounded of many pieces of local custom. Conclusions . The people. Jus publicum and jus privatum  Public law. nd  Constitutions of the Emperor. private law is ―that which pertains to the utility of individuals‖. Their essence is the same. are the source of all law. Agabin  The constitutional difference and the interrelation of senate and populus were roughly analogous to those existing between a modern English ―government‖ and an English parliament. Both laws hence became ―judge-made‖ laws. such should not be.  In still earlier periods. no one doubted the full legal equivalence of such to leges.

2. social and other conditions 4. and this is the law which is said to be established by usage. on the one hand. 3. is governed by the laws of the realm (legibus regni) and by customs (consuetudinibus) drawn from reason and long observed  Immemorial custom is observed as lex. Before the Italian Renaissance. Law v. jurisprudence the rationalization of law. Relating the importance of the law under the influence of economic. L. Central political principle of this Roman jurisprudence is not. the absolutism of a prince. Roman elements of the Civil Code A. even such a one as the history or general literature of Rome. Pointing out the basic elements of the law 5. Introduction We can point at the philosophy of law by: 1. is pretty largely Roman in its derivation. Tracing the origin of the law to its sources in human nature 2. It lies in the older.I-E | LEGHIS | Dean Pacifico A.J.  In the king‘s court each decision. deeper principle that the populus. though considered in the middle ages probably not so much specifically Roman as ―common to all mankind. 1. Jurisprudence   Law is the material of jurisprudence.  Additional conclusions: a. Tracing the growth of the law and or distinguishing law from ethics B. Jurisprudence as distinct from that law. Connecting the law with the society that evolved it and the circumstances of the time in which it originated 3. The really decisive influence of Rome on later European politics came. “The Philosophy of the Civil Code”. To reach a true conception of the spirit of our constitutional antecedents in the middle ages. Agabin. Agabin 1. the influence of Roman political institution and ideas upon those of the developing states of western Europe was exercised through the legal compilations of Justinian more than through any other medium. I. 66 Phil. as has to often been assumed. Christopher Saint-German divided the law of England into ―the law of reason primary and the law of reason secondary‖. The true essence of Roman constitutionalism does not lie in those late statements of absolutism. Thomas‘ distinction between the ultimate principles of the universal and unchangeable law of nature. and the specific deductions that men may make from these general principles. can be the ultimate source of legal authority. not after the Italian Renaissance in the tendency toward absolutism. Roman Law Antecedents • Laws of Spain based on the Roman law but to study Roman law we‘ll find out that it is greatly influenced by the Greek philosophy . but the doctrine that the people is the ultimate source of all legitimate political authority in a state. b. It came from St. and not without reason. it says.‖ c. the jurisprudence is at least equal in importance to the mere subject matter of law. at least. and none but the whole populus. but during the middle ages in the reinforcement of constitutionalism.

the philosophy of law stagnates. one form of property as no distinction was made between real and personal property.property law of husband and wife are of two kinds: a. • Paterfamilias (represented absolutism) – patriarch is the absolute monarch in the family over which he had complete control • SIMPLICITY . When law is based mainly on religious rituals. and customs. • In family law. in short a Roman law of Nature. Roman model for the philosophy maybe represented by: a. the establishment of bonus paterfamilias as the standard relation for development of private law during the first period b. morals. however not so generally applicable as was claimed for the Stoic law of Nature.command and justice – of man and of the gods • Theory of injury and liability-injuring one‘s neighbor might make the gods angry and might hit them back and could cause peril to the community • Roman law grounded on religion. one form of security whether possessory or not.where the wife had no property b. • Roman law was lex and jus .In private law. Jus Aequum -corresponds to the principle of equity.I-E | LEGHIS | Dean Pacifico A. Here was law before it was married to ethics. Agabin • Roman state was composed of hardy tillers of soil. Free marriage. royal edicts and priestly commands. These were peasants and they fashioned their laws according to their lifestyle • Roman law was but a combination of tribal customs. • We can only know the philosophy of law when it becomes distinguishable from religion. the Roman tribesmen did not question the rules • Schulz – Jurists give the impression of a mathematical treatise of rather of a treatise on a law of Nature. Societas b. • Between salvation and damnation. but one within the framework of Roman legislation and retaining certain traditional principles and axioms. • Pound – Roman law-philosophically discovered system of precepts-express nature of things which men ought to conform • Philosophy of law was not a strong point with the Romans.Separation of property . Manus marriage. Corporation • There was only one type of communio. the Romans recognized only 2 forms of human associations a. during the second period Distinguishing marks of the Roman law • One distinguishing mark of the Roman law during this period lies in the ABSENCE OF AN ETHICAL ELEMENT.

it is the philosophy of individualism. Legal symbols replaced the symbols of magic. • One common thread of Roman private law. a.Visigoths over-ran Spain and they ruled the country until the coming of the Moors (711AD) • Visigoths were later converted to Christianity • While the code imposed the rules of evidence and established the principle of equality before the law. attachment of freemen and serfs to the feudal estate 9 . goodness. legalization of slavery and serfdom 2. Agabin • Pound – when the law replaced religion as the main regulating agency. contracts became source of obligation. Humanitas – contemplated moral. the Code embodies the DOCTRINE OF THE CHURCH: 1. • ROMAN LAWS OF OWNERSHIP WERE EXTREMELY INDIVIDUALISTIC (SAME WITH SUCCESSION AND OBLIGATION) • Two principles of Roman law operated to moderate the excessive individualism: a. and rape 5. adultery. capital punishment for sexual irregularitites like homosexuality.I-E | LEGHIS | Dean Pacifico A. and its vengeful severity II. inalienability of the property of the Church 8. Spanish Precedents • 5th century. fornication. Aequitas – practical concession as the directive principle of a progressive legal development which finds itself in opposition to the strict civil law (departure from the rigidity of the Roman law) b. the old religiously-sanctioned promise became a formal legal contract which created a legal duty enforced by the government.inheritance of property through the cognate line in descending order 7. education. kindness. sanctioned persection of Jews . its deeper conservatism. It is the legal form that formed the causa for enforcing the agreement in contracts. the preservation of the distinction between classes 4. the prohibition against divorce6. imposed Christianity on all inhabitants c. sympathy. intellectual.imprisonment for debt • Code of Justinian differs from earlier codes by its rigid orthodox. it rejected freedom of worship for non-Christian b. it also softened the relationship between parent and child • Corpus Juris Civilis – Code of Justinian enacted Orthodox Christianity into law • After declaration the Trinity of God and ordering all Christians to submit to the religious leadership of the Roman Church. the oppression and persecution of heretics and dissenters 3. and consideration for others. applying the law to Romans and Visigoths alike.

FUERO JUZGO was enacted it contained 3 categories of law a. Fernando III began and Alfonso X completed a new system of Spanish law called SIETE PARTIDAS which is based on law of Spanish Visigoths but patterned after Justinian Institutes. At this time Spain felt the need for a common law. This retarded the development of Spanish law but it did not wipe out the gains in previous eras. Family matters and personal relations 5. Canon of ecclesiastical councils • In 711 the Moors invaded and occupied most of Spain and lasted twice as long as the Spain Rule over the Phil.succession. Goth leader invaded Italy and the heart of the western empire including Spain. Court organization and procedure 4. • This was because the conquered Spaniards were governed. • After the reconquista. intestacy. This led to the promulgation of the CODE OF ALARIC which introduced the tribal customs of the barbarians to Roman law. Various German customs c. Obligations and contracts6. system of community property in marriage b. customs of Catholic church and religious laws 2. in their internal affairs. ALARIC. heirs and guardianship 7. It was ignored for 70 years and in 1338 became law of Castille and in 1492 by all Spain. Natural law. Philosophy of Law (Medieval Period) . usages. Administrative law 3. • The Siete Partidas 1. Agabin Gothic compilations • 2 tribal customs brought by the Visigoths to Spain a. • Visigoth-Roman law continued to apply to the Spaniards. • This opened the way in Spain for the introduction to Germanic custom law so that when the FIRST GREAT CODE OF SPAIN.period where various cities were given or assumed their own codes • Fuero Juzgo was given to the city of Cordova in 1241. by their own laws and by their own officials. Penal code C.I-E | LEGHIS | Dean Pacifico A. advancement to heirs • Early of the 5th century. • RECONQUISTA. Roman law b.

De Civitate Dei. Workers • Hierarchical system revolved around the relationship between lord and vassal.I-E | LEGHIS | Dean Pacifico A. it was the only country which was not influenced by the renaissance as the term is understood to mean a general detachment from the religious dogmatism of the Middle Ages. it was more of an emotional bond between lord and servant • The rise of Christianity did have an effect on the Philosophy of law during this period 1.2 justitia distribution-distributive justice which is the application of the proceeds of justice of geometrical proportions • Spain continued the scholastic philosophy even after the medieval period. • Aristotle‘s teachings were studied from a prism of religious dogma and as a result it developed religious dogmas with rational analysis within the framework of the Catholic faith. lex aeterna – divine reason which governs the world 2. church above the state • This was presented clearly in the works of St. Philosophy of Law (Late Medieval Law) • There was a slight shift with the partial return of classic philosophical thought with the partial return of classic philosophy in SCHOLASTICISM. Agabin • It was a Philosophy of Compromise (according to Berolzheimer) • Medieval society was divided into 3 basic orders: a. justitia generalis – comprising all earthy virtues b. It drew the law closer to theology in the sense that since a personal God governs the world. law is therefore founded on the will and wisdom of God 2. lex humana – positive law which is man-made application of the natural law to particular situations While the Romans used bonus paterfamilias as norm of their system. St. His contribution was the concept of pax as the regulating principle which is not peace but that which brings peace. He established a penal principle and determined by its application. Thomas.1. . • Legal philosophy culminated in the SUMMA THEOLOGIAE of St. There arose a legal relationship between the church and state. • Aquinian definition of JUSTICE: a. Military c. • He distinguished 3 orders of laws: 1. D. Thomas Aquinas used the average nature of man as the limitation of legal restraint. Augustine. Religious b. justitia commutativa-obligation of restitution to prevent unjust enrichment b. lex naturalis – natural law which men know through reason 3. justitia particularis b. • Vassalage was not a legalistic concept that would approximate a social compact. In fact.

IT IS THE INDIVIDUALISM OF AMERICAN COMMON LAW. • THE PHILOSOPHY OF INDIVIDUALISM THAT CHARACTERIZES THE INNOVATIONS ON OUR CIVIL CODE IS NOT THAT OF THE OLD ROMAN LAW. men became more interested in freedom to contract than about enforcement of promises. • Our CC enacted the morals of the Catholic religion into law and perpetuated the institutions of Catholicism. marriage was looked upon. and it became a social institution at the level of the extended family system and feudal bond. independent civil actions. The taking of interest was also prohibited. • Family Code – adopted the medieval attitude on marriage as a contract between families. • Strains between jus civile and the scholastic philosophy reflected in the Code Commssion. similar to the American law on torts 2. financial or property alliance with another family. Pound mentioned that before it was the enforcement of the promises that was morally binding but later in the 19th century. when all is said and done.La Nueva Recopilacion published by Philip II • 1799-Napoleon Bonaparte came to power in France and promulgated Code of Napoleon in 1805. actions for damages for violation of the rights enumerated in the bill of rights or for violation of privacy • Philosophy of the Anglo-American torts is that private wrongs should be redressed in a private civil action. • In the medieval period. • The main philosophical strand of our civil law is the Romano – Germanic element to which were added the concepts and principles of equity in England and of torts in America. • Lesion in sales was introduced – inadequacy amounting to more than one-half the price. Philosophy of Innovations in the Present Civil Code • 53% of our present CC were textually lifted from the Spanish Civil Code of 1889. not as the fruit of love and courtship between two individuals. popular government rests. there will arise and develop a spirit of individual independence on which. When this principle shall have seeped into the general consciousness of our people. with the creation of more wealth and property. • 1567. Agabin • Revision of laws in Spain (14th century) reflected strong influence of medieval philosophy. but as a strategy for a family to obrain military. • These are the provisions on: 1. • In property law and Succession – economic individualism. • It hardly mentions the social functions or property. Its provisions on ownership all point to possessive individualism. . • In contracts and obligations.I-E | LEGHIS | Dean Pacifico A. The sovereignty of the property owner and the property rights of the family are still the basic tenets of our law on property. • 1899-Civil Code of Spain became the model in a number of European countries (4 books) III. • It was in this sense that marriage was anti-individualistic in philosophy. • In 1502. the Spanish Cortes promulgated the Leyes de Toro. instead of one between individuals. • Overriding philosophy of our CC is that of NATURAL LAW. • ORDENAMIENTO DE ALACALA emphasized the spiritual aspect of contracts and practically ignoring the element of form stressed in the Partidas. expect for provision on easement and servitudes.

the absence of legal machinery for documenting the communal rights facilitated the ever-expanding pattern of land usurpation. due to the rapacious conduct of economienderos and the failure to cultivate the lands given through grants caused food shortage in the Manila-based areas. was never resolved. Royal Grants   Most common grant. o Estancia para Ganado menor = only ¾ as large and was meant for grazing of horses and smaller farm animals o Caballeria was only 68 hectares while a Cabalita or peonia was half as large. • Individual is the high point in the philosophy of law. Agabin • The important institution was a right of free exchange and free contract. Many mortgaged their farm lands to friars. The Spaniards only documented individually owned lands.I-E | LEGHIS | Dean Pacifico A. and finally. 82 The Legal Landscape     It was the gradual adoption of the European principle of individual ownership. Taking up after the Spaniards. It is very likely that friar lands acquired illegally outnumbered the ones legally acquired. and produced a hybrid which is recognizable in natural law. making the friar estates the largest source of income for the orders. Crown lands comprised all areas not used or occupied by the natives. The legal significance of land registration. hence there was no systematic records of agricultural lands. “Land Rights. In addition. was to be reverted to the crown should they not be cultivated within two years. This stability allowed the orders to expand their right over prime agricultural lands. and in turn. usually given to soldiers or colonial officials for their meritorious service. Private estates owned by Spanish citizens and friar orders were also established by royal grants later on. bonded it with the Anglo-American elements of individualism. Ancestral Domain: Usurpation and Response . Crown Lands/Terrenos Realengos   Royal lands were those not occupied by natives. Lynch. pedazo. They symbolized the largesse which the crown and authorized subordinates could bestow on those deemed to be deserving. as well as casas de reservas (exemption from forced labor). Only the religious orders provided a stable exogenous element in terms of land allocations an usage. the commoditization of land rights commenced as local native elites began to secure individually documented rights to agricultural lands in southern Luzon and coastal areas in the north and Visayas. • Jurists saw freedom as a civil or political idea realizing itself in a progress from status to contract in which men‘s duties and liabilities came more and more to flow from willed action instead of from the accident of social position recognized by law. L. Alienation of communal property was illegal. The regime did not levy land taxes. title to terrenos baldos or abandoned crown lands. Customary Rights   King Philip expressly forbade occupation of lands occupied by the natives. friar estates soon had numerous tenants. The indigenous people had not means to secure documentation for their lands. only individually held rights were alienable. Almost 208 concessionares were made between 1571 and 1676. The colonial government was bedeviled throughout its existence with confusion and unrest over land rights. o Estancia para Ganado mayor = large estate intended for cattle ranching.    Church Estates    Ecclesiastical lands became the largest single item of Spanish-owned latifunda after the ban on religious order owning lands was lifted. for smaller and irregular plots of land. for instance. using the standards utilized in Mexico. By loaning tools and seeds for crops to farmer –tenants. • Drafters of our CC borrowed from the Spanish Civil Code of 1889 the Roman and the scholastic philo of the law of contracts. Land Laws and Land Usurpation: The Spanish Era” 63 Phil. Individuals could pass on their rights to legitimate heirs but sales were prescribed without the consent of the Audiencia‘s fiscal.J. The issuing of grants were discontinued when. deduced from the law of equal freedom as a sort of freedom of economic motion and locomotion.

causing tensions to rise between the conservative elites and the progressive masses. ―sanglang-bili‖ or usurious mortgage. usurpation persisted. The Penultimate Century     In the 19 Century. thousands of expedientes (registration petitions) have been filed. the importance of the Maura Law did not emanate from the benefits received. In 1880. when changing audiencias sided with friars and restored them the lands. By 1888. who were vital conduits in the colonial system. the process was considered a failure. The Rise of Mono-Cropping and Production Intermediaries     The Royal Decree of 1754 declared that indigenes need not have documentary evidence of ownership. The people clamored for better process of legalizing their claim to their lands. nothing much changed. oidiers bowed to the friars. Some governors-general were not sympathetic to indigenous land rights. The owners of usurped lands often resisted. in squalor. Art. th . paying only for a third of its worth. or bureaucratic structures to implement it. This caused a problem because mortgagers soon became piled up. who attempted reform. It was a tug-of-war. The Convention was dominated by the rich and landed principalia of the foregone Spanish colonial regime. few natives benefited. One of the principal causes of rural discontent was the inequitable allocation of legal rights to arable land resources. several actions were instituted to investigate and fix the problem. the lands would be reverted to the State. By 1883. The surrounding lands often bore the brunt of the expansions of friar estates. Instead. Hacienderos could not possibly till the lands themselves. springing forth the Ilustrado class. The issue of land claims remained in favor of those who possessed them. however. and the friars caused the formation of inalienable village lands as parts of a feudal-like organization. There were several ineffective efforts for land registration in the course of Spain‘s colonial government. The larger owners of estates lived in opulence while the tenants. A Revolutionary Denouement    Two years after the Maura Law was enacted. leasing portions of the haciendas to fixed rate tenants who rented them out to sharecroppers. unused land was held as collateral to a money lender. causing confusion as to who was mortgaging which land. Their efforts fell short. Land Registration   In the absence of a scheme. This was especially apparent in Negros. More often than not. tobacco and other crops. many owners and prospective owners began to have their property notarized. so they took outside help. there were four classes of estate proprietors: 1) The religious orders. and the Malolos Convention happened. There was a rise in production intermediaries correlated by absentee ownership Landless laborers also appeared. As a corollary. 2) about 12 Spanish entrepreneurs. the rise of highway robbery and outlawry. primarily by the issuance of monopoly licenses for the cultivation of coffee. When eventually the revolution won. In response. However. the lender got to keep the land. 3) the principal mestizos and Indians who were the body of farming (who had a lot of clout). Basco was on such official. From the perspective of the masses. Delays were common.  The Maura Law of 1954     The last land act enacted by the Spanish Empire. it theoretically empowered the colonial government to deny legal recognition of customary property rights. indigo. and 4) all other natives. should lands not be adjusted before the enactment of the Law. Proof of ancient possession was enough. He supported numerous projects geared towards agricultural intensification. they registration process became decentralized. The audiencia in the Philippines was pitted against the friars and the papal nuncio. limits were imposed on the measure of land one could acquire. Demonstrated the colonial regime‘s insensitivity to the plight and potentials of the masses. By 1884. When the debtor was unable to pay for the loan plus interest. spices. Agabin    The collusion of the principalia. The complaints soon began piling up in Madrid.I-E | LEGHIS | Dean Pacifico A. Privately used. IV provided that. Though immediately profitable. th Pacto de Retroventa    In tagalog. it found impact on the masses who began to revolt against the Empire. Landowning elites prospered during the 19 century and were able to send their sons to schools abroad. the Empire began to crumble. They were soon overtaken by large haciendas. The penultimate century was characterized by the opening of cultivation of large forested plains in Central Luzon and Western Visayas.

criminal law was maintained but some of the areas in public law were abrogated such as Constitutional law and Procedural law. It had the characteristics of American common law in such a way that certain ideals and precedents were based according to how cases were derived but the basis of these cases the Spanish statute laws. Philippine Common Law was brought by the Americans to the Philippines.I-E | LEGHIS | Dean Pacifico A. In Gamboa. Agabin Chapter VIII. Commerce. SECOND PERIOD: (1901 – 1906) Philippine Commission – made the Philippines a Parliamentary form of Government The Philippine Commission was a body appointed by the President of the United States to exercise legislative and limited executive powers in the Philippines. 5. the laws maintained by American jurists were most of the laws under private law. Water Maura Law – required survey of all land ownership. Before the Philippine Commission was established. it acted as the upper house of a bicameral legislature. with the elected Philippine Assembly acting as lower house. Beginning in 1907. It was first appointed by President William McKinley in 1901. Law (1969) Started in South America – this explains why most countries there adopted Spanish o Spain also underwent several revolutions Laws of Spain became beneficial also to the Filipinos however they were not properly implemented in the Philippines because of reasons like ignorance of the natives Roman Law -496 AD 7 Partidas 3. registration of sales and transfer of land ownership FIRST PERIOD: (1898 – 1900) Public law     Constitutional law Administrative law Criminal law Rules of procedure Private law – deals with relationships among individuals    Civil code Commercial code Transportation law When the Americans came.Codified Marriage laws including Civil Marriage to delineate Church from State. The Americans decided to retain the Penal code because they found out that the crimes that operated in the Spanish law were more or less common with their common law. Governor General was the Executive . The Jones Act of 1916 created an elected Philippine Senate to replace the Philippine Commission. Compilation – Leyes de Indios Marriage. “After the Spanish Conquest”. 3. 2. Introduction to Philippine Expansion of Spanish Colonies   1. 4. In public law. it was a Military Government (1898 – 1900) and the laws were in form of General Orders General Merit – Instituted General Order 68 .

Adat as Statement of Law - ―ought proposition‖ –> one of the fundamental concepts to which Adat centers. Harmonization of Adat Law vis-a-vis western Law within a Single Polity. This also explained why the jurist system was not extended to the Philippines THIRD PERIOD: (1907 – 1916) 1907 National Assembly was created. He said that Filipino judges could not be trusted to be impartial. transportation. The Commission was the legislature of the Philippines. Introduction: - Subject of law harmonization is full of pitfalls. These American judges interpreted Spanish Civil Code in the way it was interpreted by the American jurists since they were not familiar with the way Development in commerce. Agabin The Taft Commission. “Vol. if not contradictions. then known as the Philippine Islands under the sovereign control of the United States during the Philippine-American War. 1900 and September 1. a post he filled between March 16. the Commission functioned as the one House of a bicameral legislature until it was supplanted in 1916 by an elected legislature established in 1916 by the Philippine Autonomy Act. 1803 ―Code of Muslim Personal Laws of the Philippines‖ - . William Howard Taft was the first head of the Philippine Commission. Confusion may arise in matching adapt. Mastura. The Philippine Commission was subsequently headed by a number of persons. Judicial System They put up trials courts. It performed law making functions but the Philippine Commission still operated and served as the Upper House. also known as Second Philippine Commission. but is often mentioned informally and collectively as the "Taft Commission". Appointment of American judges simply because Taft did not trust Filipino judges. ASEAN Law and Society 44 (1986) I. communication made by scientific and technological advances which opened us to modernized commercial code. public order or public policy shall not be countenanced  Art 12 (Civil Code) – A Custom must be proved as fact. according to the rules of evidence  PD No. 1900. was established by United States President William McKinley on March 16. while concurrently serving as Civil Governor until January 31. That‘s why he recruited lawyers in the US. Factors that led to the Philippine Common Law    Commissioners borrowed American Statutes which had to be interpreted in line with the US interpretation. 1. Taft then succeeded himself as commission head. as a concept of law. 1904. o ―what ought to be the law‖ in a given case as against Western law‘s ―what the law is‖ Procedural means to Establishment validity of ―ought‖ propositions o In the context of evidentiary law  Art 11 (Civil Code) – Custom which are contrary to law. with the Western Law. Taft was surprised with the extent of corruption in the Judiciary so he wrote a letter to a friend saying that you can count with your fingers the number of honest Filipino judges. After the passage of the Philippine Organic Act in 1902. These are legal maxims developed from the legal consciousness of the community - II. Adat generally as a source of Law corresponds to he idea of the English ―customs‖ which are spoke of as having the force of communal sanction.I-E | LEGHIS | Dean Pacifico A. 1901.

The Moro codex were administered by the Kadis and Panglimas in Mindanao. traditions. Codification or Digest - Codification and digest indicate composite nature of adapt. beliefs. (where Azy Ignacio grew up) – used the ―Principle of Equalization of Levels‖ between Western and adapt. . Conflict of Law Situation - Problem of harmonization Conflict of laws situation context –  In actual cases of fac-to-face conflict. and India used ―Trichoomy Rules of Decision‖  First – custom and usage established as having the force of law  Second – religious civil laws as verified in written sources  Third – laws of general application enforced by the government o o IV. Texts promulgated by th th Sultanates in the 18 Century and updated towards the turn of the 19 Century.I-E | LEGHIS | Dean Pacifico A. but adat structure has retained its traditional forms. it has formalized the judicial process and the Supreme Court has had to promulgate a Shari‘a Rules of Procedure o The Statutory form was confined to the Muslim family law including succession. and Palawan regions. this Code. Muslim law public order. Sulu. 2 important notes: o A policy decision was reached to decree and recognize the Muslim legal system as part of the law of the land. and to codify Muslim personal laws on practically Westerized legal forms. public policy or public interest shall be given any legal effect 1973 Constitution of the Philippines Art XV – The state shall consider the customs. Proof of Muslim law and ada – Muslim law and ada not embodied in this Code shall be proven in evidence as a fact. and interest of national cultural communities in the formulation and implementation of state policies   o Administering by court  Art 8 (Civil Code) – Judicial decisions applying or interpreting the laws of the Constitution shall form a part of the legal system of the Philippines  Art 9 (Civil Code) – No judge or court shall decline to render judgment by reason the silence. A kind of restatement of case law will inevitably provide adapt an addendum form as when the Supreme Court has to lay its ratio decidendi with principles of adat V. Agabin Art 5. As a legal consequence. Ceylon. No ― ada‖ which is contrary to the Constitution of the Philippines. Comparative Law Studies - Diwan of Sulu. and the Luwaran of Maguindanao – comparative study of adat and Muslim law. obscurity or insufficiency (of the law) III. This principle is the means of adjusting the contents of the colonial laws with the laws then enforceable The British who ruled Malaya. the rules of statutory construction does seem to be helpful because adapt laws are not law declarations  Private international law does not provide much criteria for conflict resolution as when adapt and religious law do not complement each other with Western Law o o Political question which hinges of legal pluralism - Approaches used by other countries with regard to legal pluralism: Indonesia.

Peter had delivered to the Romans. after a few years it became the only lawful religion Known as the Century of Ecclesiastical Councils. the bishop of Rome was becoming a legislator. made in the East instead of the West 400 AD – Christianity became a lawful religion (313). “Prologue to the History of English Law” (Reprint) 300 AD – the constitutions of the emperors appeared as the only active source of law collections of Codex Gregorianus and Codex Hermogenianus were unofficially made.I-E | LEGHIS | Dean Pacifico A. The amalgamation of the Philippine legal system between Western law sources and Muslim law sources as well as adapt laws is another major case study in law reform and legal education. perhaps a more important legislator than the emperor. In 380 Theodosius himself commanded that all people should follow not just the religion Christ has brought to the world. 5 Century – Issuance of statute-books. The historical relation of adapt and Muslim law with the Western legal System was held controversial in some points. Agabin o Classification – Malay adat temenggong with reference to the patrilineal kingship system in Southern Phil - Ifugao Law (1919) Tiruray Justice (1970) Manuvu (1973) Custom law of Pre-conquest Philippines (1976) Note: There is an obvious scope of adat complilation: o o o Customary law forms are characteristically family law in nature Religion (ritual) and customary law appear complementary in establishing the jural relationship There exists similarity of range of meaning of the term adat or custom which cut across the Western sub-division of law of property. with the claim that they were. as a concept of law. was taken for granted by civil jurists for judicial reasons - A movement in the development if Philippine law is underway to incorporate adapt into the dynamics of the judicial process. but also the religion that St. It was necessary for the state to protest that criminal jurisdiction was still in its hands.‖ Maitland. Summary of points - The humanity in adapt has been downplayed in legal anthropology by framing it under the label ‗primitive law‘. Knowledge of personal laws cannot be confined to statutory forms which explains why elements of legal pluralism subsist in Southeast Asia. The church was demanding independence of the state and even dominance over the state: the church may command and the state must obey. in fact. most notably that of Theodosius II and Euric the West Goth th . Adat. inheritancem and procedure VI. these have perished though.

some post. one little scrap of Papinian and an abridged version of the Institutes of Gaius. Scandinavian laws that are not written until the 13 century will often give us what is more archaic than anything that comes th th from the Gaul of the 5 or the Britain of the 7 . there seems little doubt that the core of th the Lex Burgundionum was issued by King Gundobad (474-516) in the last years of the 5 century. Dionysio-Hadrana was sent by Pope Hadrian to Charles the Great in 774. In 528. Lastly. It was no ―code‖ in our modern sense of the term. The main work that he did for the coming centuries lies in the Digest. Far more comprehensive and far more important was the Breviary of Alaric or Lex Romana Visigothorum. It helped to spread abroad the notion that the popes can declare. Then again. Books of ecclesiastical law. Soon the Visigothic became a Spanish kingdom. it struck deep root in Gaul.book when he was slain in battle by the Franks. There were many Romani as well as many barbari for whom their kings could legislate. published it in 506 as a statute book. It is thought nowadays that this ―interpretation‖ and the sorry version of Gaiuxs represent. The barbarian kings had been issuing law books for their Roman subjects. not Gothic barbarism. he ruled Spain and a large part of southern Gaul. for example. for the more part of a criminal kind. a few from the Gregorianus and Hermogenianus. On the other hand. and nothing distinctively Christian. He was a conquering king. are said to be verbose and futile imitations of Romand codes.Theodisian constitutions. Some version of it may have been the book of canons which Archbishop Theodore produced at the Council of Hertford in 673. that of Egica (687-701). were being compiled. Justinian began the work which gives him his fame in legal history. Hence the Lex Romana Burgundionum (seems to be the law-book that Gundobad promised to his Roman subjects) and the Lex Romana Visgothorum. Like other Germanic folk-laws. bloody laws against heretics. Zeno at Byzantium. some of the Sententiae of Paulus. very little of the ancient treasure of wisdom would have reached modern times. On the other tlhand. was to be enough. Euric‘s son. By virtue of the Norman Conquest. but degenerate Roman science. and thus to contract the sphere of secular jurisprudence. * But Euric laws are sufficient to remind us that the order of date among these Leges Barbarorum is very different form the order of th barbarity. He was an expert chronologist and constructed the Dionysian cycle. he had issued a considerable body of law. he was collecting also some of the letters (decretaal letters they will be called) that had issued by the popes from Siricius onwards (384-498). The West Goth‘s power was declining. of conciliar and papal law. Lex Salica was deprived of its claim to be the oldest extant statement of Germanic custom with the discovery of fragments of th th the laws of the Euric the West Goth. it consists largely of a tariff of offences and atonement. if not the only. The greater part of these texts was equipped with a running commentary (interpretatio) which attempted to give their upshot in a more intelligible form. Rules have been taken from the three Roman codices. It was finished in 534. Agabin Theodosian code was an official collection of imperial statues beginning with those of Constantine I. from the current abridgements of imperial constitutions and from the works of Gaius and Paulus. There it was abrogated by Reckessuinth when he issued a code for all his subjects of every race. Alaric II. even if they cannot take. 6 Century – Century of Justinian The barbarians had been writing down their customs.I-E | LEGHIS | Dean Pacifico A. Collectio Dionysiara made its way in the West. one emperor. It was only a more or less methodic collection of modern statutes. Odovacer had ruled as patrician and king. Their later law books: Reckessuinth (652-672). Also it contained many things that the barbarians had better not have read. His laws were not nearly as barbarous. Euric the West Goth (circa 470 – 475) published a large law book. about the year 500 there was in Rome a monk of Scythian birth who was labouring upon the foundations of the Corpus Iuris Canonuci. It became the principal. the East Goths were still masters of Italy. Alaric issued his statute. Nothing heathen in it. that of Erwig (682). representative of Roman law in the expansive realm of the Franks. It contained large excerpts from the Theodisian Codex. th - - - - . law for the universal church. The great Theodoric had reigned for more than thirty years (493-526). Already Rome had been sacked by the West Goths. In 476. among the Romani of his realm it was to supplant all older books. He called himself Dionysius Exiguus. It comes out between the 5 and 6 century. It‘s thought that the main part of Lex Ribuaria is older than 596. It was issued in 438 with the consent of Valentinian III who was reigning in the West. he had tried to fuse Italians and Goths into one nation. He had been conquered by the East Goths. - * The West Goths wandered across Europe were veneered by Roman civilization. He was collecting and translating the canons of eastern councils. it‘s one of the ancestors of English Law. the Edictum Theodorici. while Tribonian was busy upon Digest. they were founding a kingdom in southern Gaul and were soon to have a statute-book of their own.

Roman law was in Rome itself only the personal law of the Romani. true that one of Justinian‘s successors. The impulse of Roman example soon wore out. The fourteen years are critical in legal history. the West. 600) had left him little to do. who from the first. for example. in the temporal power of the papacy and in an Italy never united until our own day. All was at stake in Italy. as they spread over Gaul. but perhaps the price was not too high. Justinian had taught Pope Vigilius. Agabin We are told nowadays that in the Orient. especially in the schools at Berytus. the Frankish system of personal law find a new field. but Lombard law prevailed between Roman and Lombard. Rome was captured and recaptured. It also sees in the dooms of Ine the beginning of written law in Wessex. their rulers were at pains to supply them with books of Roman law suitable to an age which would bear none but the shortest of law-books. statute law for the renewed empire. loved not the emperor. The struggle with the East Goths was raging. true that the year 800 is still far off. It is doubtful whether the Salian Franks made from the first any similar concession to the provincials whom they subdued. It would seem that among the Lombards. A little later. North of the Alps the current Roman law regarded Alaric‘s Lex as its chief authority. if he loathed the Lombard.‖ It was as system of racial laws. was there steadily progressive legislation. will pay Rome a twelve days‘ visit (663) and rob it of ornaments that Vandals have spared. The Roman empire centred in New Rome has just strength enough to hand back to Old Rome the guardianship of her heathen jurisprudence. As the Frankish realm expanded. During the centuries Pope Gregory the Great (590-604) is one of the westerns whose use of the Digest can be proved. its aspirations seem to be satisfied.‖ They are also. the Romani were suffered to settle their own disputes by their own rules. True that there is the dwindling exarchate in Italy. and. In a famous. as we have seen. unless discoveries have yet to be made. the Swabians have their Lex Alamannorum. customary law which paid - - - - - . Bishop Agobard of Lyons has said that often five men would be walking or sitting together and each of them would own a different law. was not the law of a district. Constantine. The Swabian. It also sees in the beginning of written law the Lombards. the unenacted law. In Italy. It has been recalled from the Institutes the boast that Africa had been reclaimed. has no concern. or. if we except some districts of southern Italy. nor could transient success in Spain secure a western home for the law-books of Byzantium. the Goths were exterminated or expelled. then Code and Digest were Kaiscrrccht. there expanded with it a wonderful ―system of personal laws. Meanwhile. he lived Alamannic law (legem vivere). In time Justinian stands as far from the jurists whose opinions he collects as we stand from the Coke or even from Fitzherbert. If the Ottos and Henries were the successors of Augustus. The Lex Salica. the classical jurisprudence had taken a new lease of life. but with what we must call Greco-Roman jurisprudence. Grimwald (668). Liutprand (713-35). New resolves are mixed up with statements of old custom in this Leges Barbarorum. with the Ecloga of Leo the Isaurian and the Basilica of Leo the Wise. The bishop of Rome did not mean to be the head of a department. One of the immediate results of this many-sided event was that Roman law ceased to be the territorial law of any part of the lands that had become subject to the so-called Roman Emperor. now ―enucleated‖ (as Justinian says) in a small compass. it is accounted to be one of the best statements of ancient German usages. It is only the Karolingian age that written law appears among the northern and eastern folks of Germany. despite their savagery. The ius. and this he did by the pragmatic sanction pro petitione Vigilii (554). At length the emperor was victorious (552). the renovatio imperii was to have a very different effect. Justinian‘s Institutes and Code and Julian‘s epitome of the Novels were known. Little was at stake there for Africa was doomed to the Saraceans. 700). Ine (circ. seem to show something that is like a genius for law. lived under his Almannic law. which was a bright spot in a dark world. Only two of ―heptarchic‖ kingdoms leave us law. the Vigilius of the pragmatic sanction that in the Byzantine system the church must be a department of the state. But some centuries were to pass before this history would be evolved. it was law of a race. But everywhere the law administered among the Romani seems to have been in the main a traditional. and the Bavarians their Lex Baiuwariorum. Justinian could now enforce his laws in Italy. and some others made by Wihtraed. Statutes appear as the civilized form of law. always retaining their own Lex Salica. if exaggerated sentence. A few years afterwards (800) a novel Roman empire was established. In ―Augustin‘s day. Thus fermentation begins and the result is bewildering. A system of personal laws implies rules by which a ―conflict of laws‖ may be appeased. the first Germanic laws that were written in a Germanic tongue. Only among the Lombards. but. 796) legislated. in 643 Rothari published his edict. they allowed to the conquered races the right that they claimed for themselves. there the Kentish series ends. bequeathes no dooms.‖ about the year 600.I-E | LEGHIS | Dean Pacifico A. About the year 1900 Alfred speaks as though Offa (circ. So Roman law was the law of the Romani. AEthelbert (circ. The century which ends in 700 sees some additions made to the Kentish laws by Hlothaer and Eadric. and yet other centuries before it would practically mould the law of Germany. However. Even Northumbria. He was to be the true lord of Rome. though we have been reason to believe that Offa the Mercian (ob. and of late years many of the international or intertribal rules of the Frankish realm have been recovered. as an expressive phrase tells us. Kent and Wessex. In the future. wherever he might be. the Lombards were training themselves to be the interpreters and in some sort the heirs of the Roman prudentes. and Justinian. and then loses forever the power of legislating for the West. It was natural then that the Romani should live their old law. 800). when Charles the Great vanquished Desiderius and made himself king of the Lombards. By developing their own ancient rules. ceased to grow three hundred years ago. The occidental world has paid heavily for Code and Digest in the destruction of the Gothic kingdom. He sent Augustin to England. Constantine IV. and Aistulf (755) added to the edict of Rothari. When once a race has its Lex. they suffer Justinian‘s books to obtain a lodgement in the West. Ratchis (746). and someone may sometimes have opened a copy of the Digest. Ethelbert of Kent set in writing the dooms of his folk ―in Roman fashion.

In it starts the history of modern conveyancing. three other books containing wouldbe. The false decretals are elaborate mosaics made up out of phrases from the bible. The clergy had long been striving to place themselves beyond the reach of the state‘s tribunals. the age which closely centres round the year 800. bishop of Chartres (ob. cin romisches Vulgarrecht. Someone who called himself a deacon of the church of Mainz and gave his name as Benedict. though materials are not wanting. begins just when it has come to its end upon the Continent. To connect this new order with the old. are so arranged as to establish a few great principles: the grandeur and superhuman origin of ecclesiastical power. A superstructure of capitularies might be reared. and its victories were closely connected with those of feudalism. Though his realm fell asunder. they are not of a strictly legal kind. they are the forged capitularies of Benedict the Levite and the false decretals of the Pseudo-Isidore. nor statements of law. of racial laws. Peter. perhaps it was saved by feudalism. Burchard. 636). Long it was questionable whether the western world would not be overwhelmed by Northmen and Saracens and Magyars. Those fratricidal wars were beginning. He has been sought as far west as le Mans. though this is not so prominent. and the agony was long. influenced perhaps by the example of Charles the Great. the churches were united. he seems to have tried to personate Isidore of Seville. His work seems to have found general acceptance. and. it has been known as the Hispana or Isidoriana. Closely connected with this fraud was another. bishop of Worms (1012-1023). to make the world of ―the classical feudalism‖ grow out of the world of the folk-laws is a task which is being slowly accomplished by skilful hands. Another celebrated collection seems to have taken shape in the Spain of the seventh century. now swollen by the Isidorian forgeries. the supremacy of the bishop of Rome. Cnut had published in England a body of laws which. they are not laws. but still Charles the Great had been supreme over all persons and in all causes. and Ivo. It was heard that in the day of Mercia‘s greatness Offa (ob. the West Goth‘s Roman law-book. feudalism was triumphant. Above all (and this is the burden of the song). That England produces no formulary books. but the Lex of a folk was not easily alterable. They and many others prepared the way for Gratian. Then out of depth of the ninth century emerged a book which was to give law to mankind for a long time to com. but it is difficult. but suspicion hangs thickest over the church of Reins. there was a good deal of definite legislation: much more than there was to be in the bad time that was coming. no accusation can be brought against a bishop so long as he is despoiled of his see: Spoliatus episcopus ante omnia debet restitui. and on a grand scale. but into it there had been foisted. The age of the capitularies . but neither did our forefathers talk low Latin. the Frankish monarchy was going to wreck and ruin. what might well be called a system of personal laws. The Hispana made it sway into France. Historians of French and German law find that a well-marked period is thrust upon them. The compiler called himself Isidorus Mercator. taking up new matter into itself. The age of capitularies begins with Alfred. but false. and it seems to have already comprised some spurious documents before it came to the hands of the most illustrious of all forgers. It became always more lawyerly in form and texture as it appropriated sentences from the Roman law-books and made itself the law of the only courts to which the clergy would yield obedience. the fathers. Among the many compilers of manuals of church law three are especially famous: Regino. The king or emperor issued capitularies (capitula). still rolled from diocese to diocese. which had the same bent as the decretals concocted by the Pseudo-Isidore. Many guesses have been made as to his name and time and home. Abbot of St. The age of the folk-laws and the capitularies. which Ansegis had published. but all these materials. and against the secular power. It was. against the metropolitans. genuine canons. Germany and France were coming to the birth. which stood to pure Roman law in the same relation as that in which the vulgar Latin or Romance that people talked stood to the literary language. capitularies. The legal products which are to be characteristic of this unhappy age are not genuine laws. They were rapidly evolving law which was in course of time to be the written law of universal and theocratic monarchy.‖ such as those which in considerable numbers compiled in Frankland. The French historian will tell us that the last capitularies which bear the character of general laws are issued by Carloman II in 884. If we compared it with the Frankish. some sixty decretals professing to come from the very earliest successors of St. 1117). the sacrosanctity of the persons and the property of bishops. and events were deciding that the church should also have a Code and abundant Novels. Isidore of Seville (ob. is one of the many signs that even this low Roman law had no home here. These are not the only. Sacerdotalism was also triumphant.‖ they can restore. nor law-books. besides other forgeries. abbot of Prum (906-915). Episcopal rights are to be maintained against the chorepiscopi. And now for the greater part of the Continent comes the time when ecclesiastical law is the only sort of law that is visibly growing. The dramatic struggle between Henry II and Becket has a long Frankish prologue. Some concessions had been won from the Merovingians.I-E | LEGHIS | Dean Pacifico A. the maker of the church‘s Digest. one picturesque element would be wanting. and that the first legislative ordonnance is issued by Louis VII in 1155. wherever collected. no books of ―precedents in conveyancing. but they are the most famous manifestations of the lying spirit which had seized the Frankish clergy. must be called a handsome code. The mass. had published laws. Strangely different is our English history. if regard be had to its date. Agabin little heed to written texts. They are compelled rapidly to pass through several centuries to a new point of view. for William the Conqueror and Henry I take up the tale. Its core was the Hispana. for. and in some sort it never ends. whose Origines served as an encyclopaedia of jurisprudence and all other sciences.796). In 1827 Ansegis. The Anglo Saxon ―land-book‖ is of Italian origin. During the golden age of the Frankish supremacy. At the date of the Norman Conquest the flow of these edicts was becoming rapid. genuine decretals. added to the four books of capitularies. In the British India of today we may see. though it shows that many capitularies were speedily forgotten and that much of the Karolingian legislation had failed to produce a permanent effect. there was none to legislate. ―the Frankish time. - - - - - - - - - . and united by a principle that claimed a divine origin. for without sufficient warrant it has been attributed to that St. Wandrille collected some of the capitularies into four books. The Isidorian forgeries were soon accepted at Rome. Not a few of the rules and ideas which were generally prevalent in the West had their source in this low Roman law. The stream of capitularies ceased to flow.

The ecclesiastical law – the pope became the substitute for the military power of the Emperor. It was a science of civil rights to be found in the human heathen Digest. the new learning found a small. and in which. there were many Franks and Swabians who transmitted their law from father to son. In England. “The Development of Teutonic Law” (Reprint) Teutonic tribes did not impose their own customary laws in their conquered empire? They also allowed Roman law to govern. a legislating kingship. a law-school had arisen. o It is somewhat difficult to see how migratory groups would arrive at the notion of a lex terra. Because of the marriage between the Church and the state effected when barbarians overran western Europe. the Roman texts gave their powerful aid to the centripetal and monarchical forces. still had the I. much governed kingdom. and before the 11 century was at end. The pope became the governing power during this time. Also there was no need in England for that reconstitution de l’unite nationale which fills a large space in schemes of French history. ordained that Roman law should be once more the territorial law of the city of Rome. Rome was completely overrun in 476 AD. These are merely compilation of customary laws of the Germans. He was soon regarded as the founder of the school which was teaching Roman law to an intently listening world. they may not know anything about compilation. etc. th Then at Pavia. counted for little in France or in England. in the first half of the 11 century. In 1076 the Digest was cited in the judgment of a Tuscan court. and after the schism between Western and . because the civilian system was devised by the Roman emperors to govern colonies which they conquered. The west. the doctrine that the Roman law was a subsidiary common law for all mankind (lex omnium generalis) was gaining ground among them but still the law upon which they worked was the old Germanic law of the Lombard race. From out this school came Lanfranc. - - Jencks. He left copies of his code in the Western world. though after a wide interval. th The influence of reviving Roman law is not ignored. The ―conflicts of laws‖ seems to have favoured the growth of a mediating and instructed jurisprudence. its share of men‘s attention. for good and ill. Civilian system is a law of places while the leges barbarorum is a law of peoples. Irnerius was teaching at Bologna. It was based on custom law (the common practices of the people of a certain tribe). they learned the benefits of codification. The theoretical continuity or ―translation‖ of the empire. Besides Lombards and Romani. the emperor whom Cnut saw crowned. Agabin Capitularies or statutes which enact territorial law came from Karolingian emperors and from Karolingian kings of Italy. Leges Barbarorum – customary laws of the Teutonic tribes. unless they were to change their customs with each migrations o Lex Ribuara for example says that… ―(accused) shall answer according to the law of the place where he was born… (and) shall bear the loss not according to Ribuarian law but according to his own law‖ They realized that the people they conquered were more civilized than they were so they let the Romans practice their own laws and this explains the sustainability of the civilian law. which secured for Justinian‘s books their hold upon Italy. A lay science claimed its rights. the pope became a power of his own when the emperor‘s power waned in the west. So Canon Law governed only the supernatural is not accurate. and. Then. In 1038 Conrad II. Codes: o Code of Alaric o Fuero Jusgo. In the Western Roman Empire. Lombardy was the country in which the principle of personal law struck its deepest roots. co-existing with the laws of the Germanic tribes. When they came to contact with the Romans. well conquered. The civil law system was therefore preserved even in the west. Civil law system – 552 AD. The heads of the school were often employed as royal justices (indices palatini).I-E | LEGHIS | Dean Pacifico A. and then from the Ottos and later German kings. about 1100. In the case of the leges. emperor of the East. These Lombardists knew their Institutes. o II. Justinian. a strong. which was overrun by Germanic tribes. This can be explained in terms of historical events. was able to conquer West and able to impose his laws. The monarchy of theology over the intellectual world was disputed. were the ordinary people you see in Western Europe. It was long before the old question Qua lege vivis? lost its importance. III. It is said that he had a predecessor at Bologna. In it men were endeavouring to systematize by gloss and comment the ancient Lombard statutes of Rothari and his successors. Since they were barbarians from the point of view of the Romans. upon Germany also. however. there are many tribes which overran Western Europe. one Pepo by name.

The law imposed by the lord of the ma nor used relationships as the foundations – like relationships between king and lord. The peculiar character of the Fief led up to the famous doctrine of ―judgment by peers‖ (judicum per pares) The law of the Fief is the law of the court th th th In the 9 and 10 century. Mercantile law Trade and commerce. The lord of the manor became the seignor. social and historical factors. They developed their own law. There was a king. there arose the Holy Roman Empire which was founded by Charles Martel in the 8 century in Germany. It is limited only to a smaller area and with respect to method. and were stimulated into sudden activity by the crusades. it was only limited to parts of Germany and France. it was the same method as the civilians system – it is a law imposed from above to the subjects. The two primary tribes that settled England are the Angles and the Saxons. not to mention the fact that there were bishops and friars copying and preserving the civil code of Justinian Priest or a bishop – he mentioned forgers. The Pope himself began to legislate. the relations among parties is based on the status of the parties. in general. landlords and slaves who were only rooted to the land. Arose from the transactions between merchants. The lord of the manor 2. but in some cases these barons still owed allegiance to a king or emperor who happen to be the biggest power at that time. affect the . the lord of the manor had to impose his own law living in his domain. th th In the 10 and 11 centuries however. This is somewhat different from the three other legal systems. even for the here and now.I-E | LEGHIS | Dean Pacifico A. peasants. Development of Law in England The English is one of the Germanic tribes. who falsified ethics so that they can impose their will on the Christian population of Western Europe. Different system of laws developed as a result of economic. This development is the Norman Conquest which was led by William the Conqueror. They have their own leges barbarorum. This gave more power to the local warlords. Because of that need that the feudal system developed. It was German and was not an empire. Agabin Eastern Christianity. Normans. the freemen 4. the author mentions a development in English history which affected the common law of England. the nobles 3. and other tribes. The rest are traveling salesmen. and the feudal lords at that time owed their allegiance to the king. parent and child and etcetera. revived with th the better conditions of the 11 century. It was neither holy nor Roman. Under the feudal law. the slaves Feudal law had to impose rights and obligations based on the status of each individual. This explains why titles of reference books coming from Civil law and Common law are different. or baron or whatever title. V. It stratified the people inside the manor into: 1. the common law is founded on the leges barbarorum of the Anglo-Saxons. - IV. The pope and the bishops and the friars legislated. their transactions and they have certain practices that became customary and it developed into law. And so that led to the development of the feudal system. they did not belong to any feudal landholding. There were petty fiefdoms and the lord of the manor. Canon law does not govern only the supernatural. It is only the farmers. wherever they go. It is the same way they legislated for the native population. Feudal law – arose as the law because of the breakup of the Roman empire where the hordes of barbarians took over and they split the Western part into so many different parts that the Roman citizens had to seek protection from the remaining generals of the legions who were given latifundias. Because there was no central power. master and servant. Priests and bishops were not governed by the feudal law. And so. almost extince in the Dark Ages which followed the downfall of the Karolingan Empire. It expanded under the emperor Charlemagne or Carlo Magno.

And this explains why the common law system is also a mixture of civilian influence and the common law. Agabin legal system of places which they conquered. There is then a reciprocal rights and duties of lord and man. While the basis was strict law. It converted the law of England into a lex terrae. according to the writer. when common law was in its formative era. some duty of one to the other (as in the case of a mortgagor and mortgagee. 4) the contests between the courts and the crown in the 17 th century. 2) the feudal law. yet they brought with them elements of the Civil law system. and 2) it has a tendency to affix duties and liabilities independently of the will of those bound (consideration of relations rather than legal transactions as the basis of legal consequences). Roman Law. was the feudal relationship. the French were still considered barbarians. or common law. two theories merged in English common law: the relationship of king and subject and as a corollary. law and the state that prevailed in the formative period in which the English common law was made over for the people by the American Courts. We cannot say therefore that Common law is completely free of civilian elements. At the time that William the Conqueror crossed the English Channel to colonize England. the primary social and legal institution of its time. This Norman conquering happened in 1066. Common Law is the law of the court Norman Conquest strengthened the position of the Crown in England – the creation of a charter as a general law Pound.      The Courts and the Crown Along with the doctrine of judicial precedent and trial by jury. 5) 18 century political ideas. English Law. which was extremely individualist in nature. a true local law. 3) Puritanism. William the Conqueror was the duke of Normandy. There are two characteristics in legal tradition: 1) it is characterized by extreme individualism (individual rights of social righteousness). 2. Common law is once more pervasive because the barbaric tribes in England were not as united and they held to compile customary practices and that‘s why they called it Common Law. or the Magna Carta or the jural duties of a king to his tenants) th In the 18 century. the doctrine of supremacy of law is one of the three distinctively characteristic institutions of the Anglo-American legal system. 6) the conditions of pioneer or agricultural communities in America in the first half of the th 19 century.I-E | LEGHIS | Dean Pacifico A. Common law has countered every element that could have superseded it: French Law. Even more significant is the legislative development by which duties and liabilities are imposed on the employer in the relation of employer and employee. is the Anglo-American legal tradition. but what he was relative to his rights against his lord and the rights of his lord against him as tenant. or as he is likely to put it. it became the natural rights of man deduced from social compact. The conquest of England introduced civilian influence to the legal system of the English. because of the nature of the relation is deemed to call for it. There are seven factors that contributed to shape American Common Law: 1) An original substratum of Germanic legal th institutions and jural ideas. The Spirit of the Common Law (1921) The Feudal Element     The most tenacious legal system. not because he has so willed. German Law. and 7) the philosophical ideas with respect to justice. . and in the th 12 Century. Effects of Norman Conquest: 1. not because he is at fault. Feudal law has always tempered the individualism of American law. which regarded men not with what they had undertaken. 3. The common law judge tends to seek for some relation between parties.

insisting that the judges were but the delegates of the king.I-E | LEGHIS | Dean Pacifico A. and this conception was handed down to the modern world in the law books of Justinian. which ran back of all states and of all human authority. th . and he wielded something very like our modern police power. No temporal act. 7 In the middle of the 16 century. which law is an art which requires long study and experience before that a man can attain to the cognizance of it…the King not ought not to be under any man but under God and the law” At this the king was much offended and Coke was eventually removed. men sought to set up a benevolent guardian of social interests. had the power to command the citizens. wherefore the king might do himself. on the other hand. Thus arose in the Byzantine period the conception of a sovereign in whom all the law-making and all the coercive powers of organized political society are concentrated. It conceived that those who wielded authority should be held to account for the conformity of their acts to that law. In other words. Feudalism: The king during the time of feudalism was charged with the duty of protecting public and social interests. unencumbered by many rules. can make the king parson without the assent of the head of the church. In place of the magistrate limited by law and held to walk strictly in the paths fixed by the custom of the realm. Naturally the royal power of protecting social interests soon came in conflict with such maxims. but by the artificial reason and judgment of the law. To this Coke answered on behalf of the judges. must be disregarded. they turned to offhand administrative tribunals (Courts of Equity such as the Court of Chancery) in which the relations of individuals with each other and with the state were adjusted summarily according to the notions for the time being of an administrative officer as to what the general interest or good conscience demanded. But this power was limited on every side by the maxims of common law and the bounds set by the law of the land. it can be traced to the feudal idea of the relation of king and subject and the reciprocal rights and duties involved 4 therein. and even acts of parliament. who should have power to do freely whatever in his judgment protection of those interests might involve. there was a fundamental law. and causes which concern the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason. they said. it is a doctrine that the sovereign and all the agencies thereof are bound to act upon principles. restrained by formal procedure and deciding according to fixed principles. A valiant fight against the movement for administrative 7 8 absolutism was waged by the common law courts. what he left usually to these delegates. Later the emperor had delegated to the magistrate both these powers. “that God had endowed his Majesty with excellent science and great endowments of nature. lawyers began to complain that the common law was being set aside. it goes back to a fundamental notion of Germanic law 5 - Philosophically. dividing temporal power from spiritual power. The magistrate. However. and in the end courts prevailed over the crown . Agabin The Doctrine of the Supremacy of Law is based on the following: Juristically. Historically. 5 History of the Idea of Sovereignty Roman Polity: Power of making laws was in the populous Romanus. if they ran counter to this fundamental law. 6 An event illustrating this contest between the Courts and the Crown The Archbishop of Canterbury wanted King James I to have the royal prerogative to adjudicate cases. 4 It is probable that the further extension of the legal doctrine of supremacy of law has its juristic origin in the medieval conception of the distinction between temporal and spiritual jurisdiction. but his Majesty was not learned in the laws of his realm of England. the Doctrine of the Supremacy of Law only became definitely established as a result of the contests between the courts th th 6 and the crown under the Tudors and Stuarts in the 16 and 17 centuries . in place of deliberate judicial tribunals. Germanic Polity: The Germanic conception was that the king was under God and the law. when it seemed best to him.

whenever the royal will for the time being and for the cause in hand was ascertained. rather than an arbitrary exercise of conscience there was no reason why it needed its own courts. The courts had but to ascertain and give effect to its will no matter what the terms of the fundamental law. It became a doctrine that it was the function of the common law and of common-law courts to stand between the individual and oppressive action by the state. Chapter VI: The Philosophy of the Law in the Nineteenth Century Evolution of Law Stage 1: In its beginnings law is a means toward the peacable ordering of society. it was conceived. Law of the Sovereign versus Natural Law The author predicts that we will be assured that the supremacy of law. 19 Century: The center of political gravity had shifted to the majority or more often the plurality of the electorate. So today (essay published in 1921). Stage 2: Age of the Strict Law In this stage. The law of the US and the law of Continental Europe were liberalized and modernized in the 17 and 18 centuries. . where it comes and where it derives its force. To them. Equity's primacy in England was later enshrined in the Judicature Acts of the 1870s. Accordingly the chief end sought is certainty. upheld the use of the common injunction and concluded that in the event of any conflict between the common law and the equity. while absolute theories of law as a mere expression of the popular will are current in political thinking. It stands beside religion and morality as one of the regulative agencies by which men are restrained and the social interest in general security is protected. expressions of the popular will for the time being. 18 Century: The center of political gravity had shifted to the legislature. The rules of law are wholly inelastic and inflexible. not by exercise of the will of any sovereign. not merely laws. an expression of reason applied to the relations of man with man and of man with the state. to be governed accordingly. and survival of ideas from primitive law when deliberate deviation from sacred texts and settled customs was held impious and dangerous. a return to juridical idealism is in progress. that the courts were set up and the law existed to guard individual interests against the encroachments of state and of society. Once equity became a body of law. fear of arbitrary exercise of the power of state assistance to individual victims of wrong. but by a juristic doctrine that all legal institutions and all legal rules were to be measured by reason and that nothing could stand in law that could not maintain itself in reason. Stage 3: Age of Liberalization (Age of Equity or Natural Law) th th th th th 8 From Wikipedia: Sir Francis. Therefore. by authority of King James I. but law. established by the common law against Tudor and Stuart is not to disappear. voting at a given election. equity would prevail. which also served to fuse the courts of equity and the common law (although emphatically not the systems themselves) into one unified court system. We may be confident that we shall have. The Courts Changing Enemies: From Crown to Legislature to Majority 17 Century: Those who thought of the king as the guardian of social interests and wished to give him arbitrary power. were enraged to see the sovereign tied down by antiquated legal bonds discovered by lawyers in such musty and dusty parchments as Magna Carta. The judges were but delegates of the people to do justice. law has prevailed as the regulative agency of society and the state has prevailed as the organ of social control. namely. Also the law is highly formal. the will of the king was the criterion of law and it was the duty of the courts. At this point. not by legislation. Agabin What effect did this contest have on the common-law tradition? Its spirit became individualist. they were delegates of the majority or plurality that stood for the whole in wielding general governmental powers. two causes operate to produce a rigid system. since the judges were but the king‘s delegates to administer justice. that he might use it benevolently in the general interest.I-E | LEGHIS | Dean Pacifico A. Thus the strict law is indifferent to the moral aspects of conduct. This contest between courts and people was a conflict of juristic theory with political theory as to what law is.

individual rights and justice as the realization of individual rights were put above state and society as state and society existed only to protect. there comes to be a body of law yet liberalized by the conceptions developed by equity or natural law. At the end of the eighteenth century transition from the stage of 10 equity or natural law was complete. In their view the end of law was to secure the widest possible liberty. It is found deduction from a metaphysical principle. in that it sought to achieve the impossible and to make what cannot be made. 10 In the common-law world. as we have seen elsewhere. Metaphysical School   Source of law: The ideal law was found not made. They held that the living organs of law were doctrinal writing and judicial decision. Second. a movement in which law is thought of as emanating from the sovereign and the ideas of command of state or of the general will becomes paramount. This was not so much a period of growth as one of adaption. justice meant securing freedom of will to everyone so far as consistent with all other wills. coincided with an epoch-making change in the philosophy of law. On Legislation: Hence. it was actually a period of stability. Historical School  Source of law: The ideal law was found not made. The completion of this rigidifying process. With all its appearance of growth. there is a legislative movement in which rights are thought of as the product of the human will. ethical solution of controversies and enforcement of duties. To insure security it insists upon property and contract as fundamental ideas. Agabin The watchword of the stage of strict law was certainty. In this movement.   3. so that there would be no rights without the social organization and no justice or law but for the political organization. which had been going on for more than a century. expressed in the first instance in its traditional rules of law made itself felt in a gradual development by molding those rules to the conditions of the present. as the outgrowth of a social contract. and in common with the maturity of law everywhere is comparable to the stage of strict law. the maturity of law again insists strongly upon certainty and in this respect is comparable in many ways to the stage of strict law. . The historical jurist denied that law was a product of conscious or determinate will. As a result of the stiffening process. but instead was a period in which received materials were worked over into better form and were developed into a consistent legal system. to be attained through reason. To insure equality. it was not a creative period. equity had crystallized so that the principles of equity were almost as fixed and uniform as the rules of the common law and bills of rights in America were codifying the natural rights of man. This excess of margin for discretion is corrected by a gradual fixing of rules and consequent stiffening of the legal system. Stage 4: Maturity of Law The endeavor to make law and morals coincide and to reach an ethical solution of each particular controversy gives too wide a scope to 9 judicial discretion so that at first the administration of justice in the stage of equity too personal and too uncertain . The permanent contributions of this stage of legal evolution are the conception of good faith and moral conduct. th th th 2. First there is purely juristic movement proceeding upon the conception that law is reason in which the ideas of right and justice are made paramount. whereby the life of a people. The watchword of this stage is morality or some phrase of ethical import such as equity and good conscience. On Law: To Kant. 19 Century Five types of philosophy of law in the 19 century are of significance: 1. 9 Utilitarians This is also one of the reasons behind the conflict between the king (Courts of Equity) and the common-law courts. they doubted the efficacy of legislation.I-E | LEGHIS | Dean Pacifico A. Two movements are represented in 18 century juristic thought. On Law: Law is the body of rules which determine the bounds within which the activities of each individual are secured a free opportunity. It is found by historical study. The theory of natural law had done its work of liberalization and modernization and had become for the time an agency of stabilization.

Imposition of limitations upon the power of an owner to dispose property: A husband earns one hundred dollars in wages and is about to assign this product of his toil to a loan shark. 11 The historical school said legislation was an evil because it attempted to do what could not be done. He vacillated between utility in the sense of the greatest happiness of the individual and in the sense of the greatest happiness of the greatest number. the wife‘s under a social interest in the security of domestic institutions. In effect his conception of the end of the law was the same as that of the metaphysical school – to secure the maximum of abstract individual self-assertion. 11  4. Mechanical Sociologists  Like the historical jurist. On Legislation: The historical school denied any function to the legislator. The mechanical sociologist substituted physical laws. Jeremy Bentham.‖ The husband‘s claim is to be subsumed under a social interest in the security of acquisitions. Positivists  The positivists jurists sought to find laws of morals and laws of legal and social evolution analogous to gravitation. A New Stage of Development: The Socialization of Law This stemmed from the problem that while individual claims and wants and desires are infinite. and sought to related these changes to changes undergone by society itself. while only by some compromise of conflicting claims which imposes such a limitation may we secure the human dignity of the employees and enable them to live human lives in a civilized society. From the 17 century until our own day it has been the promotion of a maximum individual self-assertion. The legislature forbade this. For all practical purposes the result was the same. the chiefest of social institutions. in its successive changes. The author then gives several examples of the changes in the way we approach law: 1. thought of the universe as governed by mathematical mechanical laws.  5. of that which serves for the happiness of the greatest numbers should be used as the measure of the conduct of each. espoused that a criterion of the greatest good of the greatest number possible. 2. The positivist economic interpretation denied all function to the jurist. ―You shall not exercise this incident of your ownership of this claim for wages unless your wife is willing to join in this assignment. namely to make law consciously. the mechanical sociologist looked at law in its evolution.I-E | LEGHIS | Dean Pacifico A. .-) In the beginnings of law this end was simply a peaceable ordering. The legislature steps in and says to him. and they expected to find these laws through observation and experience. Rise of limitations upon freedom of contract: A mining company paid wages in orders of a company store. the material means of satisfying them are finite. Chapter VIII: Legal Reason Let us Recall… . In Roman law and the Middle ages it was the maintenance of the th social status quo. The historical jurist found metaphysical laws behind these changes. Nonetheless. a positivist philosopher. Agabin  The founder of the utilitarians. it is no infringement of the human dignity and no considerable interference with the full human life of the operator to say to him that he shall pay wages only in cash. Comte. conservation of energy and the like. and the question was whether the statute forbidding it and enacting that persons employing more than a certain number of employees should pay wages in cash was an arbitrary interference with free contract. The utilitarians said it was evil because that government best that left men most free to work out their own happiness. On Legislation: Legislation. except in emergencies and for certain incidental purposes was an evil. and hence of moral and social phenomena as governed.

For the end of law was taken to be a maximum of self-assertion by each. If we took the abstract th individualism that was 19 century: The legislative restriction does not promote a maximum of free individual self-assertion but on the contrary restrains such self-assertion and does not do this in order that others may have a like freedom of self-assertion. we are seeking to secure as much of human claims and desires – that is as much of the whole scheme of interests – as possible. with its incident of free exercise of his faculties by owning a car. or at least it is not seriously impaired by so limiting it in order to give effect to other wants which are consistent with social life. From the 17 century until our own day it has been the promotion of a maximum of individual self-assertion. Let us say that the change consists in thinking not of an abstract harmonizing of human wills but of a concrete securing or realizing of human interests. and a social interest in the individual life. now there is an age of socialization of law as it appears to put the emphasis upon social interests. Agabin Legal Reason   The process of judicial lawmaking consisted in development of the materials of the common-law tradition and of the new premises provided – the ―artificial reason and judgment of the law‖ Judicial activity must be directed consciously or unconsciously to some end. th 8 phenomena in American law: o Growth of limitations on the use of property. th  The 19 century would have thought at once of an abstract free man of full age and sound mind. o The rise of limitations upon freedom of contract:  In 1886.  But suppose we think in terms of the interest of society in the individual moral and social life. It is no infringement of the human dignity and no considerable interference with the full human life of the operator to say to him that he shall pay wages only in cash. and the courts of today have come to that conclusion. We may think of the task of the legal order as one of precluding friction and eliminating waste. In the beginnings of law this end was simply a th peaceable ordering. and of precluding friction and eliminating waste in the human use and enjoyment of them. The legislature forbade this. while only by some compromise of conflicting claims which imposes such a limitation may we secure the human dignity of the employees and enable them to live human lives in a civilized society. o Change of res communes and res nullius into res publicae     .I-E | LEGHIS | Dean Pacifico A. o Limitations upon the power of creditors to exact satisfaction which have become so common and were denounced so extravagantly by courts when first they were enacted  Certain recent changes in judicial and legislative attitude: o To impose liability in the absence of fault – if we think on the one hand of the security of acquisitions and the individual life of the owner. limited only by the possibility of a life self-assertion by all. of limitations on exercise of the incidents of ownership: th  19 century – simply one of the right of the owner and of the right of his neighbour. as one of the conserving the goods of existence in order to make them go as far as possible. and ask what rule will secure the most with the least sacrifice. th What does the law stand for? In contrast with the 19 century. upon the demands or claims or desires involved in social life rather than upon the qualities of the abstract man in vacuo or upon the freedom of will of the isolated individual. the restriction upon free contract is justified.  Now – there is a social interest in the security of acquisitions. individual interests must be subsumed under the security of domestic institutions. he may at least have all that is possible. the interest of society in the human life of the individuals therein. o Imposition of limitations upon the power of an owner to dispose of property. the chiefest of social institutions. a mining company paid wages in orders on a company store.  William James.  Looking at the standpoint of the social interest.‖  Tried by a social-utilitarian criterion of securing as many interests or as much of interest as we may with the least sacrifice of other interests. on which our economic order rests. possessed of a claim for wages as part of his substance.‖ our aim should be ―to satisfy as many as we can with the least sacrifice of other demands. and on the other hand of the general security of life and limb. Put in this way. and the question was whether the statue forbidding it and enacting that persons employing more than a certain number of employees should pay wages in cash was an arbitrary interference with free contract. But that security of acquisitions is satisfied by use of property for the satisfaction of wants of the owner which are consistent with social life. so that where each may not have all that he claims. In Roman law and in the Middle Ages it was the maintenance of the social status quo. with the least sacrifice of such interests. The infringement of the general security of acquisitions involved in such a restriction is negligible.  Hence the social interest does not extend to exercise of individual faculties for anti-social purposes of gratifying malice. as a principle of ethical philosophy: ―since all demands conjointly cannot be satisfied in this poor world.

To promote abundance 4. even then. what will give the fullest effect to those social interests with the least sacrifice? o Rudolf von Jhering – first to insist the interests which the legal order secures rather than the legal rights by which it secures them. divorced the jurist from the actual life of society. the security of acquisitions is recognized as such. individual wants. Agabin Res combomunes – incapable of ownership by any one and their use was said to be common to all. To favour equality  If we look only at social interests. by allowing actions. Not to injure another 3. o from a social-utilitarian standpoint the history of law is a record of continually wider recognition and more efficacious securing of social interests  Hippodamus of Miletus. there came a social theory of law. To secure us in property 2. what demands are involved in the existence of the society in which these individual demands are put forward. individual rights have been infringed for the good of the society. Law begins by granting remedies. To secure us in our reputations  Bentham 1. To secure us in life 3. the conception of law as a means towards social ends. in so far as they may be so treated. and when so subsumed under social interests. To provide substinence 2. th In the 19 century.  Res nullius – no one owned them for the time being. To give to each his own  Bacon. public and individual. The function of legal history comes to be one of illustrating how rules and principles have met concrete situations in the past and of enabling us to judge how we may deal with such situations in the present rather than one of furnishing self-sufficient premises from which rules are to be obtained by rigid deduction. To maintain security 3. On the other hand. Jhering taught that the law was something created by society. so far as society recognized them Jhering‘s work is of enduring value for legal science. Injury 3. 3-fold classification of law – general security is the only interest taken into account and only the simplest phases of that interest are redarded: 1. the former doesn‘t stop there. the general security is conceived narrowly in terms of individual substance and of individual personality in the two simple forms of life and reputation: 1. To live honourably 2. but anyone who took possession of them intending to make them his own might become owner by so doing  Res publicae – owned by the state in trust for the people The jurisprudence of today catalogues or inventories individual claims. and a social interest in the general morals is added: 1. we had come to think rather of individual rights of using these things and of the persons in whom these rights resided. Homicide  Institutes of Justinian – general security conceived more widely. American judges insisted upon a legal theory of equality of rights and liberty of contract in the face of notorious social and economic facts. as did the th jurisprudence of the 19 century: o However. Insult 2. In time we generalize from these actions and perceive rights behind them. Three features of social utilitarianism that are significant for our task of shaping the materials of the common-law tradition to meet the purposes of today and of tomorrow: o the light it throws on legal history th  19 century focused on individualism – this is not the essence of law. requires the jurist to keept in touch with life. When Jhering came in. As of the end of the last century. The older juristic theory of law as a means to individual liberty of law as a means to individual liberty and of laws as limitations upon individual wills to secure individual liberty. it goes to ask: What claims. social. we may see that the legal order endeavours to give effect to at least 6 groups of claims or demands involved in the existence of civilized society:          . through which the individual found a means of securing his interests. The purpose of law was held to be a harmonizing of individual wills in such a way as to leave to each the greatest possible scope for free action. individual desires.  In certain times. all theories of law were individualist. how far may these individual demands be put in terms of those social interest or identified with them. the doctrine that law exists to secure interests.I-E | LEGHIS | Dean Pacifico A.

Necessity and Functions of Government I. 5. not the least problem is to discover a rational mode of advising the court of facts of which it is supposed to take judicial notice. This includes o Peace and order. The jurists today are studying it from without.  In the past century law was studied from within. therefore the loss of this right involved a loss of freedom Mabini argued for the necessity of an authority in the person of an executive . religious.I-E | LEGHIS | Dean Pacifico A.Election into power of a man who is believed by society to be the one most able to direct them and who will be charge with the protection of freedom… He suggested an agency that would serve not only to check a possible tyranny but also as a representative of the people. In a transition from the mechanical lawmaking of the past century to rational lawmaking. domestic. o The security of acquisitions o The security of transactions 2. Conservation of social resources – the claim or want of civilized society that the natural media of civilized human existence and means of satisfying human wants in such a society shall not be wasted and shall be used and enjoyed in a manner consistent with the widest and most beneficial application of them to human purposes. Interest in general progress – the claim or want of civilized society to be secure against those acts and courses of conduct that interfere with economic. The political and Constitutional Ideas of the Philippine Revolution Ch III. and to be secure against those acts and courses of conduct which interfere with the possibility of each individual‘s living such a life.  Where the last century prepared for legislation by study of other legislation analytically. the legal reason of today looks at social interests not in terms of abstract claims of abstract human beings. o o Majul. and political 3. In the crowded world of today the law is constantly taking account of it and the jus abutendi as an incident of ownership is becoming obsolete 4. 6. “On the Origins. The executive was always a person with power derived from the people. they insist on sociological study in connection with legal study in preparation for legislation. Social interest in the individual human life – the claim or want of civilized society that each individual therein be able to live a human life according to the standards of the society. General morals – the claim or want of civilized society to be secure against those acts and courses of conduct which run counter to the moral sentiment of the general body of those who live therein for the time being. Function of the Institution of Authority or Government in Maintaining Freedom and Producing Order in Society Mabini         Society was a system of relations between various individuals who originally associated in order to satisfy their multiply needs by the mutual exchange of their individual products His theory may be interpreted as a technique to illustrate that Spain used both force and guile in attempting to establish her sovereignty over the Philippines and that the US was following Spain‘s footsteps The right to the products of one‘s labor was a natural right. Security of social institutions – the claim or want of civilized society to be secure from those acts or courses of conduct which threaten or impede the functioning of its fundamental institutions. political and cultural progress and the claim that so far as possible individual conduct to be so shaped as to conduce to these forms of progress. see to it that the power of the elected leader is used in accordance with the decides of the people Mabini laid down a theoretical basis for the distinction of at least two powers of government: the executive and the legislative. Agabin The general security – the claim or want of civilized society to be secure from those acts or courses of conduct that threaten its existence. The legislative organ was composed of a group of persons whose function was to see to it that this power was used in accordance with the mandate of the people Notion of a judiciary as a power that determined the kind of punishment for evil in society The purpose of Authority was both to order the community by the use of coercion in the elimination of disruptive elements and to construct a better planned society . the first interest to receive legal recognition o The general health . 1.

and where a government existed whose function was to protect those rights Welfare of people equivalent to the satisfaction of the desires of a people. Agabin Jacinto     Necessity of authority or government in order that society achieves what it believes to be for its good He always believed in the necessity of government to serve the aims of society He has a notion of a ―congress‖ elected by the people which. Welfare of the People as an aim of government     Rizal. Aspirations during the propaganda period 1. the Philippines would become a progressive and more useful to Spain .I-E | LEGHIS | Dean Pacifico A. in order to fulfill the one and to satisfy the other – satisfaction of the aspirations of the people A. Lopez-Jaena  With the granting of more political rights for Filipinos. would also serve as a form of intermediary between the people and the governor Government – institution by which a group of men were charged with the political administration of society II. but rather with the educated elite 2. Jacinto and Mabini all asserted that man had a certain intrinsic value and possessed certain intellectual and moral capacities Freedom was the necessary condition for this uninterrupted development. Rizal          Asked Spain to recognize that the right to life is inherent in every individual like the right to liberty and light His demand that government should allow man his personal dignity meant in effect that he should never be used as a tool by the colonial powers for their own selfish interests The absence of freedom was identical with a state of tyranny In Noli: o The Spanish government had to provide for greater personal security for the people and develop a better system for the administration of justice o The abuses and power of the armed forces had to be curtailed o Government was asked to better the economic and educational status of the people o Priests were to be given better opportunities to hold parishes from which the friars were to be excluded Philippines should be represented in the Spanish Cortes and the administration of the country be revamped Secularization of parishes encouragement of primary education without any intervention on the part of the friars Freedom of press and freedom of religion Rizal believed that governments are established for the welfare of the people. who are the ones best qualified to understand their own needs He did not believe that there should be direct consultation with the masses. besides being a law-making body. Del Pilar   To entreat from Spain a condition in the Philippines where there are rights guaranteeing the security of the individual and the recognition that men are possessed of the element of responsibility and where one‘s conscience is inviolable All civil and religious institutions be subject to the prescriptions of the law and to the demands of Morality 3. It is a natural right State viewed as a society where there was a recognition of certain natural rights among men. To this purpose they have to follow the suggestions of the citizens.

2. press.I-E | LEGHIS | Dean Pacifico A. choice of profession o Petition the highest governmental authorities for redress . Hong Kong Junta       Composed of exiled Filipinos and sympathizers Freedoms of thought. Isabelo de los Reyes     Katipunan had three objectives: political social and moral o Separation from Spain if political rights were not granted o Encourage mutual help among the members o Work for the greater education of the people and the lessening of religious fanaticism in the country Katipunan wished to perfect the race by a good and vigorous education and by the possession of a good political institution Since the Katipunan began as a movement where the majority of the members belonged to the uneducated masses. Mabini‘s concept of the functions of government 1. Agabin    He demanded was the liberty of conscience and association instead of religious communities that humiliated the spirit Security of the individual meant the absence of arbitrary arrest and protection from the abuses of Guardia Civil There must be an identity between the interests of the Spanish government in the Philippines with those of the Filipino people. Jacinto  Contented himself with stating that the object of the government is the people and the security and welfare of the people must be the aim of all its acts and laws C. press. Aspirations of the Katipunan 1. association and religion Right to property was also to be recognized Guardia Civil was to be suppressed The people were also to participate to a greater extent in the election of government officials and were to be consulted on taxes Church was to be under the control of Filipino hierarchy D.  Personal security and the greatest number of liberties the maximum satisfaction of economic wants best possible education Proposed constitutional program o Bill of rights and educational provisions demonstrate an attempt to put into practice some of the theoretical ideas as to the three functions o Provided for protection of the individual from arbitrary arrest and unlawful detention o Capital punishment for civil cases were not allowed o Freedom of thought. they must have looked toward the intellectual leadership of the propaganda Designed for an immigiate end: to ensure a unity among Filipinos within a highly secretive organization in order to assure eventual emancipation from Spain 2. religion. association. and that the failure to satisfy these aspirations was the actual cause of antagonism between government and people B. 3.

 Elections were held this way: communities in towns were gathered and made to elect a chief (jefe de pueblo) and the headman of each barrio. Attempts to Let the People Have active participation n Government. 5. where freedom was doing what is right. and should. Mabini said that as regards taxes. Rizal. In such a case. Since men by nature possessed a moral personality. Mabini considered the possibility that government might not live up to the purpose for which it had been instituted. provided that government was legitimate in the sense that it expressed the will of the people. 4. and government may be abusing its power. The Ideas of Jacinto and Mabini Concerning ―Obedience to Law‖. freedom consisted in obeying the laws. the cacique class in Filipino society. never pervert the purposes for which it was established for the benefit of a privileged class in society. This is held: the obedience to the will of the people is held to be equivalent to obedience to oneself or one‘s reason. some writers erroneously thought they were disappearing—a case of wishful thinking. said that any government whose power did not come from the people was a government imposing itself upon the people. Notion of a ―Moral Government‖     The demand that government should express the popular will and have the consent of the governed. Mabini: the strength of a democracy lay at the municipal level. However. Jacinto made the justification that all forces of production reside in the people. all taxes imposed without the consent (or intervention) of the people who have to pay them. on the other hand. 1. The electoral system aimed at the creation of a Revolutionary Congress that could serve as a visible sanction for the government. It was clear to both Jacinto and Mabini that without law neither morality nor order could exist in society. then three others: 1) office of police and internal order. The Malolos Constitution was designed to put the country under the control of the ―intellectual oligarchy‖. and 2) the existence of a privileged group.I-E | LEGHIS | Dean Pacifico A. “On the Obedience to Law”   Government was expected to work directly to make men good. Mabini‘s Second Notion of Freedom   In a civil society. Success in government was to a large extent based on its adherence or adjustment to the tenets of natural law. Basis for the Legitimacy of Aguinaldo‘s Authority. they were needed by the Revolutionary Government to provide help in the resistance against the American army. are unjust.       Jacinto wrote that law was to be obeyed insofar as it was an expression of the popular will and not simply the will of those individual men in control of administrative functions—clearly not the laws they were living in under the Spanish regime. by virtue of their economic position and social pre-eminence. government should not impede the development of this personality. Though their patriotism was unquestionable. therefore. Free elementary education Ch IV. in the final analysis they both expressed the same principle. In obeying laws reflecting the will of the people. the interests of government may become opposed to those of the members of society. Another demand is that government had to obey the laws and not act on deceit but do everything it had promised the people. 2. as opposed to freedom in a state of society without government. a moral government essentially meant a government guided by natural law. Both assert that ultimately all governmental power originated from the people. Mabini maintained that one of the functions of government was to balance the different interests that may be found n the various institutions within the State. The chiefs then consulted their popular assemblies and then cast . when laws might not be just. and 3) taxes and property. Agabin  Education was responsibility of the state. the cacique class was believed to have been antagonistic towards the masses. they clearly sought economic and political power. During the revolution. and Jacinto asserted that obedience to authority was obedience to the will of the people. 3. it was obedience to oneself. Attitude toward the Cacique     Cacique= the powerful class in society that were the closest to the Spanish regime and held the forces of production (land and capital). Whereas Mabini asserted that obedience to authority was obedience to oneself. It may be suggested that to Mabini. 2) justice and civil registry. This fear was clearly rooted on two experiences in Filipino History: 1) the Spanish government either sided with or took the part of the friars in conflicts with the people. These officials became the popular assembly.

“The Malolos Congress: Legislative Supremacy v. Strong Legislative Power Why republican charter? modern and progressive constitution was needed to achieve recognition of the independence of the Philippines by other nation Social system Political traditions of the Filipinos Very Powerful Legislature: salient feature in the Malolos Consti *PRESIDENT: mere symbol/figurehead Directly responsible to Congress: All official acts had to be countersigned by a secretary of the cabinet -elected by the Congress. the majority of the inhabitants of the areas governed by the revolutionary government supported said government. and they could run to it for redress on any wrong done to them. pamphlets. which effectively transformed the Katipunan into a revolutionary government. suggesting that they did give their consent to a government which they always considered their own. Presumably. Temporary Dictatorship Introduction        09.1899: Malolos Consti officially announced Issue in approaches to structure of Philippine Government: Constitutionalists – Calderon Absolutists – Mabini Issue after adoption of Calderon’s draft: WON the provisions of Consti were adequate to secure gains of the Revolution Calderon’s Support of a Consti. Bulacan …after ratification of independence of the Philippines on 06.1898 Congress immediately drafted a constitution for a future republican system of government MABINI: Congress had no power to draft a constitution – Congress consultative body.1898: Revolutionary Congress was inaugurated in Malolos.21. It was precisely to prevent the voters from being controlled by a few of the leading citizens in a town that Mabini and other dedicated men undertook to educate their countrymen along political lines by mean of articles.I-E | LEGHIS | Dean Pacifico A.15.    6. Filipinos for the first time had come to feel that they had their own government. which had power to impeach him -    . the Spanish government. not Constituting body CALDERON: Congress had power to draft and promulgate a constitution …Congress was not satisfied in remaining a mere consultative body – Aguinaldo led to recognize that Congress had the power of promulgating the fundamental laws of the land …Calderon‘s draft was accepted and approved. The major justification of revolution was based on the absence of this morality in government. However. no one seriously questioned his leadership. Since then. was not elected by the Revolutionary Congress. Evaluation of Mabini‘s System for Local Government      It gave the people a relatively greater amount of participation in government that they could ever have dreamt of during the Spanish regime. The need for a single individual to take the role of leadership may reflect ingrained habits of the Filipino people due to their exposure to only one form of government. and oratory. Aguinaldo. these commissioners were military men and were most likely loyal to Aguinaldo and his regime. except for amended on Church and State …Mabini devised amendments but was rejected almost in toto Why Compromise? Adopt “temporary provisions”         to prevent serious split in Congress necessity for the factions to join in fear of an outbreak of hostilities with US troops 01. The government used the method of putting electoral commissioners in towns during elections to prevent caciques from manipulating results. however. The chiefs then elected Representatives for the Revolutionary Congress. Mabini‘s electoral system may be viewed as an attempt to establish a government that had the consent of the people. He was merely recognized as the leader of the Katipunan at the Tejeros Convention. that is.12. Agabin votes for the provincial chief (jefe de provincia) and three councilors who held the same functions of the municipal councilors. Ch VIII.

not a constituting assembly …Revolutionary Congress created to secure a greater popular support for Aguinaldo and to advise and help him in the prosecution of the Revolution …formation served primarily as a visible sanction for Aguinaldo‘s leadership …Mabini was the author of the Decree defining the functions of the Revolutionary Congress!!! *he opposed Congress‘ creation of COnsti because proposed constitution aimed to make Congress supreme in all matters of government and reduce function of Aguinaldo as mere figurehead *country was unprepared for proposed constitution because of the possible outbreak of hostilities with American troops which demanded concentration of three divisions of power in the same hands *When Mabini recognized that Congress would soon promulgate the Constitution. *during start of war with US and evidence of abuses of civilian population by Filipino soldiers existed. suspension. weak exec might have not existed ~Mabini also feared military might get out of hand so he wanted to vest greater powers on Aguinaldo. so he would be in a better position to curb the abuses of his subordinates and followers – and there would also be an ilustrado (like himself) guiding and advising Aguinaldo ~so both Calderon and Mabini feared the military *Why Calderon might have believed in control of “intellectual oligarchy”: Rizal‘s tradition that only the ilustrados knew what was good and beneficial for the people. delays accompanying passing of law by an unwieldy assembly could not be afforded: fast and efficient promulgation and execution of laws is needed! >Strengthening the executive: so that abuses of the civilian by the military might be avoided or curbed *Mabini believed that ―Democracy should be based on a municipal foundation‖ (provincial government): so even if he wanted to increase the power of the central government.23. and dissolution of Congress except in concurrence with Congress or Permanent Commission *JUDICIARY: controlled by congress -Congress appointed SC Chief Justice and Procurator-General = had power to try them in cases of high crimes *PERMANENT COMMITTEE: (Title VI. …he even said that his secretaries (including Mabini) would resign because if the Congress promulgates the COnsti. reforms to be beneficial had to come “from above” for those “from below” were “irregular and uncertain” e. Agabin         -cannot declare convocation.g. being supreme military chief. even veto them. Arts 54-55) -composed of 7 members of the congress. Art. he tried to convince Aguinaldo to use his powers as President of Revolutionary Government – Art 24 of Decree of 06. Defense of Strong Chief Executive *technical ground: Congress is just a consultative body.1989 (which also defined functions of the revolutionary congress): President could explain to congress why certain acts of Congress should not be carried out. and would have to remain the chief executive of the Philippines for an indefinite time – if not then a strong congress v. 75) Why Calderon Favored a Strong Legislature: It was designed to serve as a counter force to the growing strength of the military element in the Philippines.I-E | LEGHIS | Dean Pacifico A. Art. he urged for a military dictatorship to repress the abuses of the military (not to subjugate the town people) * LEADER CURB ABUSES OF SUBORDINATES …PROBLEM: what would prevent the supreme chief from abusing his own powers? Mabini: Public Opinion is the answer!                 . the SC Chief Justice would temporarily assume presidency until election of new President *Why unicameral system of legislature:  there were not enough men in the country competent to fill both houses  there were no conflicting interests in the country to justify existence of more than one house (united in desire for independence) – Calderon did not think that at the time of peace there would possibly be conflicts among the ilustrados ruling the country *ilustrados have different economic backgrounds – conflicts among them could arise *many of them belonged to the cacique class – conflicts with peasants would be inevitable Mabini’s Opposition to the Consti. it would censure the secretaries and Congress would be more powerful than Aguinaldo *in time of war.          …Calderon was convinced that bulk of the military forces were ignorant …many persons who belonged to the humbler strata of society were members of Katipunan …Calderon preferred that the intelligent congress dominate the ignorant military – did not want to see the military predominate in the affairs of the country …Aguinaldo not from ilustrado group. SC Chief Justice. he advised council of government that some amount of power should be allowed to the provincial councils in order that the abuses to which the armed forces gives rise should in some manner be contained. when President dies or resigns. 44) – intended to watch the actions of high government officials (President. cabinet/council of government) *CABINET: directly responsible to Congress (title IX. elected by them -during recess: assumed all the powers of the Congress + adopt emergency measures -served as Court of Justice: can try President of the Republic and other high officials believed to have committed high treason (Title V.

I-E | LEGHIS | Dean Pacifico A. Agabin         Critical Public Opinion: this opinion could serve as a moderating influence on the actions of the dictator. division of powers based on origin and electoral responsibility) .. 99 and 101 strengthened executive power .. strong executive temporary for wartime (1. judiciary – but not hierarchichal. did not have direct popular sanction) ~Mabini‘s General Theory similar to Calderon‘s: predominance of legislative power of government over executive and judiciary for peacetime. the state theoretical grounds On veto powers: violated principle and fundamental basis of constitutionalism (division and absolute separation of attributes of powers of society) …division of powers not checks and balances: system for the specialization of definite functions – based on different origins of powers …THE CONGRESS (whose members were elected by the people and thus represent the people) SHOULD BE MORE POWERFUL THAN THE EXECUTIVE OR JUDICIARY (elected by Congress. supremacy of legislative over exec.disagreed with the adoption of a constitution “static” or permanent in character since /it was a time of revolution fraught with unpredictable changes/ and therefore viable constitution should be adopted to accommodate to the conditions of the times and place …should prepare the people for a perfect constitution which should be applied at the advent of peace and not at the time of war *2 aspects/parts of the Constitution: Fundamental: certain fundamental principles that referred to individual rights (Bill of Rights?) and moral aims of a revolution (independence. Aguinaldo Critique of Mabini on… Separation of Church and State: could alienate some of the supporters Bill of Rights: could not be fully maintained in practice since country under predominance of military element *Mabini qualified “absolutist” for arguing for a strong politico-military dictatorship only as a temporary expediency..29. aggrandizement temporary. exist only during lifetime of individual th *on Second Veto Power (7 amendment): extensive and omnipotent …labors of Congress would result into sterility *on Power vested on the government to arrest any member of Congress believed to have acted against the security of the th State (4 Amendment): the president could easily declare the Congress as conspirators vs. contains the specific objections of the Committee -asserted that proposed amendments objectionable on 2 GENERAL GROUNDS: strengthening Executive in the person of the President resulted in corresponding weakening of the legislative power > despotism > Philippines would be subject to an autocrat and a tyrant …individual/ dynasty could aggrandize a people. actually a ―Constitutionalist‖ because he was a firm believer of the constitution . but this would ONLY BE EXPECTED FROM THE ILUSTRADOS and not from the MASSES WHO WERE IMBUED WITH A CULT OF LEADERSHIP that they avoid questioning the actions of their leaders – i. republican principles) – irrepealable Accessory: administrative technique that would serve in securing and maintaining of the moral aims of the revolution and individual rights – MUST CHANGE ACCORDING TO THE CONDITIONS AND NEEDS OF TIME AND CIRCUMSTANCE Proposed Amendments of Mabini            11.but Mabini’s group was strong: led congress to add “Temporary Articles” to the proposed COnsti (compromise between Calderon and Mabini groups) Arts..1898: Congress approved the Consti and was sent to Aguinaldo for approval …Mabini urged Aguinaldo not to sign it and INTRODUCED 12 PROPOSED AMENDMENTS PRESIDENT could ASSUME LEGISLATIVE POWERS when Congress not in session President has a second VETO POWER (exclusive to the president) on any act of Congress if either internal or external security of the country was endangered PRESIDENT COULD DISSOLVE THE CONGRESS without consent of the latter when (a)congress hostile towards council of government and (b)the circumstances of the nation were grave CURTAIL POWERS OF THE PERMANENT COMMISSION in favor of the council of government limited Permanent commission to PROTECTION OF THE CONSTI WHILE CONGRESS NOT IN SESSION Permanent Commission could CALL CONGRESS AS COURT OF JUSTICE Permanent Commission to CARRY OUT FUNCTIONS ASSIGNED TO IT BY CONGRESS SUSPENSION OF SEPARATION OF CHURCH AND STATE Emphasis that all amendments were PROVISIONAL AND TRANSITORY in character Dictamen of Calderon             -authored by Calderon. 2.e.

23. 7. 9: no person subject to ARBIRTRARY ARREST AND DETENTION.// decrees communicated to Permanent Commission or Congress Art 101: sort of veto power of President (can return law to congress. central government could intervene Prevent provincial and municipal corporations from exceeding their powers Determine taxing powers Intervention: Schurman commission describes it as of Spanish methods of government. based on a reason involving the security of state) Right to petition cannot be suspended: reflected attitude of hope among Filipinos that a paternalistic system.1898 decree consistent with this …even if local and provincial elections provided.10. Agabin    Art. congress would not act on it for 1 year) rd Art 100: temporary suspension of separation of Church and State (3 proposed amendment of Mabini) General Support of a Strong Government                *Filipinos looked forward to government to make the good life possible for them *Filipinos used to strong government: o nature of highly centralized form of Spanish government o existence of normally strong Gov-Gen directly representing the Spanish King …Aguinaldo‘s dictatorship. government was a positive agent to redress grievances . c. 13: case of forcible entry > right to demand responsibilities which ensue Art.9. 10: right of domicile Art. in accordance with law. procedures for arrest and detention required. 15: person detained/imprisoned WITHOUT JUDICIAL PROCEDURES should be DISCHARGED on his petition or of any other Filipino Art.I-E | LEGHIS | Dean Pacifico A. 16 and 17: no person could be deprived of property except by virtue of judicial sentence Art 18: no taxes imposed upon people unless decided upon by legally authorized popular corporations/congress Art 19: Freedom to exercise political and civil rights Art. communication and association Art 5: freedom of religious worship Art 28: did not limit rights to the ones written in the consti Art 30 Arts 7.11 and 20 may be suspended (a. on pretext that country had been converted into a huge Katipunan so the latter was not a secret society anymore The Bill of Rights of the Malolos COnstitution                        -most elaborate document expressing deepest aspirations of the Filipinos -testimony to the principle: Government was to maintain freedom in a society where law prevailed -reveals why revolution was launched -30% of Consti text *Arts. 14: no Filipino could be prosecuted/sentenced except by a competent judge/tribunal and in accordance with law ( DUE PROCESS CLAUSE?) Art. 11: no person compelled to change his residence except by law Art. b. *Art. Filipinos ―conditioned‖ to government‘s intervention in their affairs …desire for strong government: government w/c needed great powers to give the people benefits they never had before *fear/general distrust of a strong chief executive among Filipinos: evident in the efforts of the Committee on Constitution to have a strong legislature – FEAR OF ILUSTRADOS OF THE LEADERSHIP OF THE MASSES ~Calderon and Mabini agreed on: a STRONG CENTRAL GOVERNMENT ELIMINATION OF DEPOTISM *Trend towards strong centralized government: desire to have a national Church controlled by government at some extent dissolution by Aguinaldo of Katipunan and declaring it illegal. 99: Provided in part that /during the struggle for independence /the government could issue decrees/ on questions or difficulties not provided by law. 30: prohibits government to banish Filipino away from country ~demonstrates lawmakers at Malolos conditioned by experiences of the past Art 12: freedom of correspondence Art 13: detention/search of correspondence to be done in accordance to law and should be justified Art. 8. 25: freedom to change residence Art. 06.8. 20: freedom of speech. temporary suspension.

it was officially interpreted that Spaniards may claim lands beyond the treaty line provided they were discovered by sailing west. Philip also ordered that indigenes be informed that there were no designs on their persons or property. however the ilustrados took away the leadership away from them (with Mabini as exception) Lynch. and the complaints by the friars ensued. over inhabited territories. Magellan and the Islas de San Lazaro Magellan was an experienced Portuguese mariner who secured the patronage of the Spanish king. even if ilustrados instilled republican and constitutional programs in consti. from the arrival of Legazpi until 1581. the Portuguese zone was east. . rather he changed course when he reached the latitude of Luzon and headed straight for the Philippines and on March 17. Agabin Actual Exercise of the Rights during the revolution     *Hard to judge merits of Bill of Rights because only within a month after it went into effect. masses find it difficult to understand the new concepts fielded to them: Democracy Republic – no idea what it is to be a citizen of a republic *The revolution begun with the masses. let alone ownership. Nonetheless. press freedom) *Bill of rights taken very seriously by the revolutionary leaders for it is the only thing they could offer the Filipino people for their support for the government’s preservation The role of the “ilustrado” in the revolution            *Malolos Consti showed what most educated segment of the population wanted as the form of their own government *Educated segment gained control of Congress and command greater say in governmental affairs *Aguinaldo had loyalty of the bulk of the revolutionary soldiers and was relatively successful in the early days of the revolution against Spain …the educated class were afraid of the upheaval but when they saw that it was gaining success. The most serious abuses were caused by encomenderos. 279 (1987) THE SPANISH FOUNDATION Declaration of Alexander VI The Declaration of Alexander VI became the basis for the Treaty of Tordesillas which sliced the world in two. was notable for the harsh treatment inflicted by soldiers and colonial officials on indigenous peoples.I-E | LEGHIS | Dean Pacifico A. However. war broke out *Republic did not survive for more than 10 months *Bill of Rights of Malolos Consti made explicit some of the ―rights‖ already exercised during days of the Revolutionary Government (redress. The Manila Synod of 1582 The first phase of the Spanish occupation. 62 Phil. Charles I. and consequently in running the government. he needs the support of the educated class *members of the Malolos Congress may be presumed to be sincere in their republican and constitutional programs for they were products of the liberal ideas *However. L. they joined the revolution: motivated by (a) patriotic principles.J. He dispatched Legazpi and ordered him to pacify the Philippine archipelago bloodlessly. (b) ties of consanguinity *Educated men had no intention of being governed by the leaders of the masses and was in fact aiming to grab the leadership of the revolution (oportunista!) but Filipinos put high premium on education so the masses included them in their ranks *Aguinaldo realized that in order for him to succeed in the revolution. reached the shores of Samar island. 1521. he strangely did not veer west in search of the Moluccas. The Spanish zone of exploration was west of the Atlantic line. Magellan and his men referred to the still relatively unexplored archipelago as the Islas de San Lazaro. for a daring effort to reach the Moluccas from the west by sailing around the southern tip of the New World. Sovereignty and the Alexandrian Declaration It was interpreted by King Philip that the papal bulls (Alexandrian Declarations) could not have entailed any grant of political dominion. “The Legal Bases of Philippine Sovereignty”.

Sovereignty and Consent A plebiscite was held where the precocious native collaborators ―voluntarily‖ and ―solemnly‖ chose the king as their sovereign and natural lord. The Treaty of Paris went no further than to give its consent to the acquisition of the Philippines. . Ostensibly a response to Spanish abuses being inflicted on the Cuban people. It was simply assumed that the Spanish cession was valid and that it applied to all parts of the colony. Purchase. the US government declared war against Spain. therefore. Spanish sovereignty over the archipelago was ceded to the US in 1898. all rights secured under the cession of Spain. In many parts of the islands. and assert their determination. to transfer said government. upon terms which shall be reasonable and just. jurisdiction or control over said islands.I-E | LEGHIS | Dean Pacifico A. of course. Colonial Preludes On April 25. it was specific in denying Filipinos any status as US citizens. Conversely. Therefore. The US disclaimed any disposition or intention to exercise permanent sovereignty. The Treaty of Paris The Church wanted to ensure that any transfer of sovereignty over the Philippines would be by purchase and not conquest. This action did not necessarily imply any commitment to hold the island permanently. regions inhabited by unconsenting peoples retained their sovereign rights. 1898. the declaration of war soon spurred developments in the Philippine colony. Purchase of sovereignty would be accompanied by an implied duty to respect property rights which had been recognized and documented by previous sovereign. Agabin The second phase of the occupation was heralded by the arrival of the first Bishop of Manila. The Philippines was bought from Spain for US $20M. enduring and occasionally successful. and to thereupon leave the government and control of the islands to their people. In fact. They emphasized that Castilian sovereignty in the Indies flowed from the commitment to preach the Gospel to the infidels and to provide military protection of converts against their pagan neighbours. resistance to colonial imposition was widespread. Spain technically never acquired full sovereignty over the entire archipelago. The plebiscite participants. did not speak for everyone. would be better safeguard legal titles to the friar estates and other church holdings. The synod participants were willing to justify the Spanish usurpation on the basis of the indegene‘s supposed cultural inferiority. when a stable and independent government shall have been erected therein entitled on the judgment of the government of the US to recognition as such.

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