Historical School of Jurisprudence/Legal Historicism

Introduction

Jurisprudence is the theory and study of law. It studies the origin and concept of law. Law
has a very complex concept. Its understanding varies from people to people. Everyone has
a different understanding of the law. For instance, a law student and lawyer understand the
law as a solution of every dispute. An ordinary citizen understands the purpose of the law is
to punish them.

The basic tenet of the school is that law in its essence is not something imposed on a
community from above or from without, but is an inherent part of its on-going life, an
emanation of the spirit of the people.1 Historical school of jurisprudence believes that law is
an outcome of a long historical development of the society because it originates from the
social custom, conventions religious principles, economic needs and relations of the people.

Accordingly, the law is the product of the forces and influence of the past. It is based on the
general consciousness of people which started from the very beginning of the society. There
was no person like sovereign for the creation of law. Savigny, Sir Henry Maine and Edmund
Burke are the renowned jurists of this school.

The Concept and Meaning

With the changing needs and nature of persons, the law should be changed. The historical
school follows the concept of man-made laws. ‗Law is formulated for the people and by the
people‘ means that the law should be according to the changing needs of the people. And
everyone understand their own need better than anyone else.

Historical school emerged as a reaction to legal theories propounded by analytical positivists

and the natural law philosophers. This school rejects the ideas of formation of law by judges
and the origin from some divine relevance. It does not attach much importance to the
relation of law to the state but gives importance to the social institutions in which the law
develops itself. While the analytical school pre-supposes the existence of a well-developed
legal system, the historical school concentrates on the evolution of law from the primitive
legal institutions of the ancient communities.2

The task of the historical school is to deal with the general principles governing the origin
and development of law and with influence that affects the law. Historical jurists viewed the

1
Robert E. Rodes, On the Historical School of Jurisprudence, 49 Am. J. Juris. 165 (2004).
2
Friedrich, C. J. The Philosophy of Law in Historical Perspective, 2nd ed. Chicago: University of
Chicago Press, 1963. Ch. 15.

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Historical School of Jurisprudence/Legal Historicism

law, not as principles of morals but principles of customary action.3 They believed that law
has biological growth.

Reasons for the Origin

The Historical School believe that law is made from people according to their changing
needs. Habits and customs are the main sources of the Historical School of Jurisprudence.

The reasons for the emergence of this school are:

1. It came as a reaction to the natural school of law.

While the natural school of law believes that the law is closely associated with the morality
and intention of God, the historical school of Jurisprudence focuses on the formation of law
by people not by some divine origin.

2. It opposes the ideology of the analytical school of jurisprudence.

Analytical school of jurisprudence, also called Austinian School, focuses on the origin of law
the judges, state and legislators. Historical School, on the other hand, laid emphasis on the
formation of law by people through customs and habits, not by the judges and superior
authority.

Role of History in Law Practice and Judicial Decision-Making

One role emerges through the legal doctrine of stare decisis, a key component in a common
law system. It requires a court to consider and follow previous decided cases (precedents)
that sufficiently resemble an instant or current case. As it is sometimes phrased, courts
should treat like cases alike. Stare decisis therefore requires a court to consider history: the
history or tradition of analogous cases. The problem that arises, however, is that the
similarity and dissimilarity between a prior case (or precedent) and a current case is almost
always disputable.4

History also sometimes plays a second role in law practice and judicial decision-making.
Namely, lawyers and judges sometimes invoke historical arguments to support a particular
legal or judicial conclusion. As a general matter, lawyers and judges typically accept certain
types or modes of argument as being legitimate within the legal system. History often plays
a prominent role in constitutional law. Attorneys and judges will assert that historical
evidence reveals that the framers of a constitutional provision intended to achieve some
desired goal.

3
Walton, F. P. "Historical School of Jurisprudence and Transplantations of Law." Journal of
Comparative Legislation & International Law 183 (3rd series, 1927).
4
Thomson Gale, ―Historical School Of Jurisprudence,‖ Encyclopedia of Philosophy, 2016,
https://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-maps/historical-
school-jurisprudence.

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Historical School of Jurisprudence/Legal Historicism

Jurists of the Historical School of Jurisprudence

1. Montesquieu
According to Sir Henry Maine, the first jurist to adopt the historical method of understanding
the legal institution was Montesquieu. He laid the foundation of the historical school in
France. Montesquieu argued that it is irrelevant to discuss whether the law is good or bad
because the law depends on social, political and environmental conditions prevailing in
society.5 Montesquieu concluded that the ―law is the creation of the climate, local situation,
accident or imposture‖.6 He was of the view that law must change according to changing
needs of the society. He did not establish any theory or philosophy of the relation between
the law and society. He suggested that the law should answer the needs of the place and
should change according to time, place and needs of the people.

One of the best-known works of Montesquieu was his book ‗The Spirit of laws‘. In this book,
he represents his beliefs in political Enlightenment ideas and suggests how the laws are
required to modify according to the needs of people and society.

2. Friedrich Karl von Savigny

Savigny is a prominent German jurist, who has been the main exponent of this historical
interpretation of the law and is regarded as the father of the Historical school. He argued
that the coherent nature of the legal system is usually due to the failure to understand its
history and origin. According to him, the law is ―a product of times the germ of which like
the germ of State, exists in the nature of men as being made for society and which develops
from this germ various forms, according to the environing the influences which play upon
it.‖7

In later works, Savigny was to use the term Volksgeist, spirit of the people,8 generally
meant a rejection of rationalism and natural law; a rejection of the notion of law as the
command of the state or sovereign, and therefore a disparagement of legislation and

5
―Historical School of Jurisprudence,‖ Legal Bites: Law and Beyond, September 18, 2018,
https://www.legalbites.in/historical-school-jurisprudence/.
6
See, supra, note 5.
7
Frederick Charles von Savigny, Of the Vocation of our Age for Legislation and Jurisprudence,tr.
Abraham Hayward (London, Littlewood, 1831; repr. Birminghom, Legal Classics Library, 986), 24. The
translation is from the 1828 German edition. The first edition appeared in 1814.
8
Friedrich Karl von Savigny, System des heutigen Rbmischen Rechts, vol. 1 (Berlin, Viet, 1840), 14. It
appears that the term was first used in law by Puchta in 1828. Georg Friedrich Puchta,
DasGewohnheitsrecht,ErsterTeil (Barmstadt:Wissenschaftliche Buchgesellschaft, 1965)(1828), 138.
Before that, it had been used in philosophy by Hegel. G. W. F. Hegel, Vorlesungen Uber die
Philosophie der Weltgeschichte, ed. K.H. Ilting et al. (Berlin: Felix Meiner Verlag, 1996) (1822-23),
318. For the earlier development of the concept, see Nathan Rotenstreich, "Volksgeist," 4 Dictionary of
the History of Ideas, 490 at 491-3 (New York: Scribner, 1974).

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Historical School of Jurisprudence/Legal Historicism

codification. He believes that the law cannot be borrowed from outside. The main source of
law is the consciousness of the people.

3. Sir Henry Maine

In England Henry Maine (1822–1888) was closely identified with the historical school. As an
Englishman, Maine saw in law more than a people's customs; he observed and took into
account the creative and reforming work of Parliament, and so he was led to recognize
legislation as an instrument of legal growth.9 He found that equity and legal fictions played
creative roles in the common law. In these respects, he departed radically from Savigny's
monistic approach to law and its sources.

Maine differed from Savigny also in believing that custom might historically follow an act of
judgment, so that the jurist could be seen to have had a creative role in making the law,
even though he claimed only to have found it. Maine‘s deep knowledge of early society
resulted in his emphasis on man‘s deep instincts, emotions and habits in historical
development. According to Maine, law can be understood as a late stage in a slow-evolving
pattern of growth. He believes that there are three stages in legal development in early
societies — the laws are made on the commands of the rulers; law as custom upheld by
judgments; and, law as code.10

In revealing the ideals operative in a society at a particular stage of its development and in
relating them to social conditions, Maine stimulated the development of the use of the
sociological method in jurisprudence. It thus became apparent that just as law cannot be
divorced from history, so, too, it cannot be divorced from philosophy and sociology.11 Thus,
if Savigny's historical jurisprudence was mainly conservative in import, Maine's work had a
predominantly liberalizing effect. Then too, Maine's work influenced the development of
comparative legal studies.

9
Thomson Gale, supra, note 4.

10
Saurav Bhola, ―Historical School of Jurisprudence,‖ Pleaders, 2016,
https://blog.ipleaders.in/historical-school-of-jurisprudence/amp/.
11
Thomson Gale, supra, note 4.

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Historical School of Jurisprudence/Legal Historicism

ARTICLE XII
NATIONAL ECONOMY AND PATRIMONY

Section 7. Save in cases of hereditary succession, no private lands shall be transferred or

conveyed except to individuals, corporations, or associations qualified to acquire or hold
lands of the public domain.12

Section 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will encourage the formation and
operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national
jurisdiction and in accordance with its national goals and priorities.13

Section 11. No franchise, certificate, or any other form of authorization for the operation of
a public utility shall be granted except to citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines, at least sixty per centum of whose
capital is owned by such citizens; nor shall such franchise, certificate, or authorization be
exclusive in character or for a longer period than fifty years. Neither shall any such
franchise or right be granted except under the condition that it shall be subject to
amendment, alteration, or repeal by the Congress when the common good so requires. The
State shall encourage equity participation in public utilities by the general public. The
participation of foreign investors in the governing body of any public utility enterprise shall
be limited to their proportionate share in its capital, and all the executive and managing
officers of such corporation or association must be citizens of the Philippines.14

Section 14. (2) The practice of all professions in the Philippines shall be limited to Filipino
citizens, save in cases prescribed by law.15

12
Official Gazette of the Republic of the Philippines, accessed July 12, 2019,
https://www.officialgazette.gov.ph/constitutions/the-1987-constitution-of-the-republic-of-the-
philippines/the-1987-constitution-of-the-republic-of-the-philippines-article-xiv/

13
Official Gazette, supra, note 12.
14
Official Gazette, supra, note 12.
15
Official Gazette, supra, note 12.

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Historical School of Jurisprudence/Legal Historicism

ARTICLE XIV
EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS

Section 4. (2) Educational institutions, other than those established by religious groups
and mission boards, shall be owned solely by citizens of the Philippines or corporations or
associations at least sixty per centum of the capital of which is owned by such citizens. The
Congress may, however, require increased Filipino equity participation in all educational
institutions.

The control and administration of educational institutions shall be vested in citizens of the
Philippines.

No educational institution shall be established exclusively for aliens and no group of aliens
shall comprise more than one-third of the enrollment in any school. The provisions of this
subsection shall not apply to schools established for foreign diplomatic personnel and their
dependents and, unless otherwise provided by law, for other foreign temporary residents. 16

Case Laws

1. Luzon Stevedoring Corporation v. Anti-dummy Board

G.R. No. L-2694. August 18, 1972

FACTS

Plaintiff-appellant Luzon Stevedoring Corporation appealed on February 25, 1966 from the
decision of the Court of First Instance of Manila dated February 3, 1966 and holding that
under the provision of Section 16 (a) of the Public Service Act or Commonwealth Act No.
146 in relation to Section 2-A of the Anti-Dummy Law or Commonwealth Act No. 108, as
amended by Republic Act No. 134, a public utility corporation "is prohibited from keeping
non-American aliens in its employ", copy of which it received on February 5, 1966.

On March 13, 1963, plaintiff-appellant filed a complaint for declaratory relief alleging among
others that it has nine (9) non-American aliens under its employ since long before the
decision on March 31, 1962 in G.R. No. L-24850, entitled "Macario King, et al. vs. Pedro S.
Hernaez, etc., et al.", which ruled that aliens other than Americans may not be employed in
whatever capacity in any retail business in the Philippines.

On April 5, 1963, the defendant-appellee, through the Solicitor General, filed its answer and
interposed therein the special defenses that the complaint states no cause of action; that
according to the opinion of the Secretary of Justice, plaintiff-appellant cannot employ non-
American aliens in accordance with Section 2-A of the Anti-Dummy Law; and that plaintiff-

16
Official Gazette, supra, note 12.

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Historical School of Jurisprudence/Legal Historicism

appellant, having in its employ nine (9) non-American aliens since before 1962, had already
violated Section 2-A of Commonwealth Act No. 108, as amended by Republic Act No. 134, in
relation to Section 16(a) of Commonwealth Act No. 146 and Section 8 of Article XIV of the
Constitution, and therefore cannot avail of a petition for declaratory relief for the
determination of its rights or duties under the aforementioned laws and constitutional
provision.

On October 8, 1965, the plaintiff-appellant, assisted by their respective counsels, prayed for
judgment based on facts that plaintiff Luzon Stevedoring Corporation is a public utility
corporation organized and existing under the laws of the Philippines; Pursuant to Section
16(a) of our Public Service Act, public utility corporations, such as plaintiff, may be
organized provided that at least 60% of the subscribed or paid-up capital stock thereof
belongs entirely to citizens of the Philippines or of the United States, and the remaining
40% of the said subscribed or paid-up capital stock may belong to non-American aliens.

ISSUE

Whether or not the prohibition against the employment of non-American aliens in public
utility corporations refers only to business, right, franchise or privilege which is completely
nationalized.

RULING

No. The policy or purpose of the amendatory law, Republic Act No. 134, in inserting Clause
3 in Section 2-A of Commonwealth Act No. 108, as amended by Commonwealth Act No.
421, was to plug all loopholes that may be utilized by designing foreigners to circumvent the
nationalization laws of the country, regardless of whether such laws provide for complete or
only partial nationalization of the right, franchise, privilege, property or business covered
thereby. Explained on House Bill No. 1027, the existing law is full of loopholes, and the
penalties provided for therein are not severe enough. Persons who aid, assist, or abet in the
evasion of the provisions of the Constitution and of our laws by citizens of the Philippines or
of the United States who permit the use of their name or citizenship in the enjoyment of a
right, franchise, or privilege which is granted only to such citizens, are not penalized under
existing laws. There is also no penalty imposed on persons who assist, aid or abet in the
evasion of the provisions of the Constitution and of our laws requiring the ownership of a
certain per centum of the capital of a corporation or association for the enjoyment of certain
rights, franchises, or privileges. No provision in the existing law orders the deportation of
aliens, who, abusing the hospitality of the country where they reside, violate our
nationalization laws.

2. Cruz v. Secretary of DENR

G.R. No. L-26094. December 6, 2000

FACTS

Petitioners Isagani Cruz and Cesar Europa filed a suit for prohibition and mandamus as
citizen and taxpayers, assailing the constitutionality of certain provisions of Republic Act No.

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Historical School of Jurisprudence/Legal Historicism

8371, otherwise known as the Indigenous People‘s Rights Act of 1997 (IPRA) and its
implementing rules and regulations (IRR). The petitioners assail certain provisions of the
IPRA and its IRR on the ground that these amount to an unlawful deprivation of the State‘s
ownership over lands of public domain as well as minerals and other natural resources
therein, in violation of the regalian doctrine embodied in section 2, Article XII of the
Constitution.

ISSUE

Whether or not the provisions of IPRA contravene the Constitution?

RULING

No. The provisions of IPRA do not contravene the Constitution. Examining the IPRA, there is
nothing in the law that grants to the ICC/IPs ownership over the natural resources within
their ancestral domain. Ownership over the natural resources in the ancestral domains
remains with the State and the rights granted by the IPRA to the ICCs/IPs over the natural
resources in their ancestral domains merely gives them, as owners and occupants of the
land on which the resources are found the right to small scale utilization of these resources,
and at the same time, a priority in their large scale development and exploitation.

Additionally, ancestral lands and ancestral domains are not part of the lands of the public
domain. They are private lands and belong to the ICCs/IPs by native title, which is a
concept of private land title that existed irrespective of any royal grant from the State.
However, the right of ownership and possession by the ICCs/IPs of their ancestral domains
is a limited form of ownership and does not include the right to alienate the same.

Separate Opinions

Justice Puno
A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled
"On the Uses and Disadvantages of History for Life." Expounding on Nietzsche's essay,
Judge Richard Posner17 wrote:18

"Law is the most historically oriented, or if you like the most backward-looking, the most
'past-dependent,' of the professions. It venerates tradition, precedent, pedigree, ritual,
custom, ancient practices, ancient texts, archaic terminology, maturity, wisdom, seniority,
gerontocracy, and interpretation conceived of as a method of recovering history. It is
suspicious of innovation, discontinuities, 'paradigm shifts,' and the energy and brashness of
youth. These ingrained attitudes are obstacles to anyone who wants to re-orient law in a
more pragmatic direction. But, by the same token, pragmatic jurisprudence must come to
terms with history."

17
Chief Judge, US Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law
School.
18
The University of Chicago Law Review, Vol. 67, Summer 2000, No. 3, p. 573.

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Historical School of Jurisprudence/Legal Historicism

The IPRA law DID NOT VIOLATE the Regalian Theory

1. These lands claimed by the IPs have long been theirs BY VIRTUE OF NATITVE TITLE ;
they have lived there even before the Spanish colonization. ―Native title refers to ICCs/Ips‘
pre conquest rights to lands and domains held under a claim of private ownership as far
back as memory reaches. These lands are deemed never to have been public lands and are
indisputable presumed to have been held that way since before the Spanish Conquest.‖

2. AND Native Title is an Exception to the Regalian Doctrine: … Oh Cho vs Director of

Lands: ―This exception would be any land that should have been in the possession of an
occupant and of his predecessors-in-interest since time immemorial‖

3. Native Titles provide a different Type of Private Ownership

―Sec. 5. Indigenous concept of ownership. --- Indigenous concept of ownership sustains the
view that ancestral domains and all resources found therein shall serve as the material
bases of their cultural integrity. The indigenous concept of ownership generally holds that
ancestral domains are the ICCs/Ips private but community property which belongs to all
generations and therefore cannot be sold, disposed or destroyed. It likewise covers
sustainable traditional resource rights.‖

4. It complies the Regalian Doctrine: Natural Sources within ancestral domains are not
owned by the IPs.

The IPs claims are limited to ―lands, bodies of water traditionally and actually occupied by
ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements
made by them at any time within the domains;‖

IPRA did not mention that the IPs also own all the other natural resources found within the
ancestral domains.

When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical
concepts into the Philippine legal system which appear to collide with settled constitutional
and jural precepts on state ownership of land and other natural resources. The sense and
subtleties of this law cannot be appreciated without considering its distinct sociology and the
labyrinths of its history. This Opinion attempts to interpret IPRA by discovering its soul
shrouded by the mist of our history. After all, the IPRA was enacted by Congress not only to
fulfill the constitutional mandate of protecting the indigenous cultural communities' right to
their ancestral land but more importantly, to correct a grave historical injustice to our
indigenous people.

Justice Kapunan
1. The provisions of the IPRA (specifically Sections 3, paragraphs (a) and (b), 5, 6, 7, and 8
affirming the ownership by the indigenous peoples of their ancestral lands and domains by
virtue of native title do not diminish the State‘s ownership of lands of the public domain,
because said ancestral lands and domains are considered as private land, and never to have

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Historical School of Jurisprudence/Legal Historicism

been part of the public domain, following the doctrine laid down in Cariño vs. Insular
Government;19

2. The constitutional provision vesting ownership over minerals, mineral lands and other
natural resources in the State is not violated by Sections 3, 5, 7, 56, 57, 58 and 59 of the
IPRA which grant certain rights to the indigenous peoples over the natural resources found
within the ancestral domains, e.g., to benefit from and share in the profits from the
allocation and utilization of the same, as well as priority rights in the harvesting, extraction,
development or exploitation thereof. The State retains full control over the exploration,
development and utilization of natural resources even with the grant of said rights to the
indigenous peoples, through the imposition of requirements and conditions for the utilization
of natural resources under existing laws, such as the Small-Scale Mining Act of 199120 and
the Philippine Mining Act of 1995.21 Moreover, the rights granted to indigenous peoples for
the utilization of natural resources within their ancestral domains merely amplify what has
been earlier granted to them under the aforesaid laws;

3. While the IPRA recognizes the rights of indigenous peoples with regard to their ancestral
lands and domains, it also protects the vested rights of persons, whether indigenous or non-
indigenous peoples, who may have acquired rights of ownership lands or rights to explore
and exploit natural resources within the ancestral lands and domains;22

4. The Due Process Clause of the Constitution is not violated by the provisions (Sections 40,
51-54, 62, 63, 65 and 66) of the IPRA which, among others, establish the composition of
the NCIP, and prescribe the application of customary law in certain disputes involving
indigenous peoples. The fact the NCIP is composed wholly of indigenous peoples does not
mean that it is incapable of being impartial. Moreover, the use of customary laws is
sanctioned by paragraph 2, Section 5 of Article XII of the Constitution; and
5. The provision of the Implementing Rules characterizing the NCIP as an independent
agency under the Office of the President does not infringe upon the President‘s power of
control under Section 17, Article VII of the Constitution, since said provision as well as
Section 40 of the IPRA expressly places the NCIP under the Office of the President, and
therefore under the President‘s control and supervision with respect to its administrative
functions. However, insofar as the decisions of the NCIP in the exercise of its quasi-judicial
powers are concerned, the same are reviewable by the Court of Appeals, like those of the
NLRC and the SEC.

3. Roy III v. Herbosa

G.R. No. 207246. November 22, 2016

19
41 Phil. 935, 212 U.S. 449, 53 L Ed. 594 (1909).
20
R.A. 7076.
21
R.A. 7942
22
Section 56, R.A. 8371.

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Historical School of Jurisprudence/Legal Historicism

FACTS

On June 28, 2011, the Court issued the Gamboa Decision,... that the term "capital" in
Section 11, Article XII of the 1987 Constitution refers only to shares of stock entitled to vote
in the election of directors, and thus in the present case only to common shares, and not to
the total outstanding capital stock (common and non-voting preferred shares). The Gamboa
Decision attained finality on October 18, 2012, and Entry of Judgment was thereafter issued
on December 11, 2012. On May 20, 2013, the SEC, through respondent Chairperson
Teresita J. Herbosa, issued SEC-MC No. 8

Section 2. All covered corporations shall, at all times, observe the constitutional or statutory
ownership requirement. For purposes of determining compliance therewith, the required
percentage of Filipino ownership shall be applied to BOTH (a) the total number of
outstanding shares of stock entitled to vote in the election of directors; AND (b) the total
number of outstanding shares of stock, whether or not entitled to vote in the election of
directors.

On June 10, 2013, petitioner Roy, as a lawyer and taxpayer, filed the Petition,[15] assailing
the validity of SEC-MC No. 8 for not conforming to the letter and spirit of the Gamboa
Decision and Resolution and for having been issued by the SEC with grave abuse of
discretion.

ISSUE

Whether or not the SEC gravely abused its discretion in issuing SEC-MC No. 8 in light of the
Gamboa Decision and Gamboa Resolution.

RULING

SEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction
when it issued SEC-MC No. 8. To the contrary, the Court finds SEC-MC No. 8 to have been
issued in fealty to the Gamboa Decision and Resolution.

The Gamboa Resolution

Foreign Investments Act of 1991 (FIA)

Gamboa Resolution put to rest the Court's interpretation of the term "capital." Full beneficial
ownership of stocks, coupled with appropriate voting rights is essential. The Court reiterates
and confirms the interpretation that the term "capital" in Section 11, Article XII of the 1987
Constitution refers to shares with voting rights, as well as with full beneficial ownership.

Section 2 of SEC-MC No. 8 clearly incorporates the Voting Control Test or the controlling
interest requirement. In fact, Section 2 goes beyond requiring a 60-40 ratio in favor of
Filipino nationals in the voting stocks; it moreover requires the 60-40 percentage ownership
in the total number of outstanding shares of stock, whether voting or not. The SEC

11
Historical School of Jurisprudence/Legal Historicism

formulated SEC-MC No. 8 to adhere to the Court's unambiguous pronouncement that "[f]ull
beneficial ownership of 60 percent of the outstanding capital stock, coupled with 60 percent
of the voting rights is required."[79] Clearly, SEC-MC No. 8 cannot be said to have been
issued with grave abuse of discretion

While SEC-MC No. 8 does not expressly mention the Beneficial Ownership Test or full
beneficial ownership of stocks requirement in the FIA, this will not, as it does not, render it
invalid meaning, it does not follow that the SEC will not apply this test in determining
whether the shares claimed to be owned by Philippine nationals are Filipino, i.e., are held by
them by mere title or in full beneficial ownership. To be sure, the SEC takes its guiding
lights also from the FIA and its implementing rules, the Securities Regulation Code

Conclusion

Historical School of Jurisprudence describes the origin of law. This school argues that the
law was found not made. The main source of law is Kings Judgment, Customs and habits.
Jurists like Montesquieu, Savigny, and Sir Henry Maine are the supporter of the Historical
School of Jurisprudence. According to Sir Henry Maine, Montesquieu was the first jurist of
Historical school. Sir Henry Maine was the jurist of English Historical School. He was more
logical and accepts the concept of Codification and legislation. Savigny was the father of
Historical school. He argued that Law is like language and have a national character. Law is
not universal.

Despite the criticisms, Savigny‘s legal theory marked the beginning of the modern
jurisprudence. His theory of Volksgeist interpreted jurisprudence in terms of people‘s will as
it laid greater emphasis on the relation of law and society. And this theory came as a revolt
against the 18th-century natural law theory and analytical positivism.

The essence of Savigny‘s Volksgeist theory was that a nation‘s legal system is greatly
influenced by the historical culture and traditions of the people and the growth of law is to
be located in their popular acceptance. Savigny‘s approach to law gave birth to comparative
jurisprudence which has been accepted as one of the most important branches of legal
studies in modern times.

12