INTRODUCTION TO LAW by RUFUS B? RODRIGUEZ AB, M.A., LL.B., LLY Former Commissioner, Bureau of Immigration; Former Dean, San Sebastian Colleze of Law; LL.M, (Harlan Fiske Stone Scholar), Columbia Law School, New York, (1995); Certificate (with Honors), Parker School of International & Foreign Law, Columbia University, New York, (1995} Fellow, 1993 Academy on American and In:ernational Law, Dallas, Texas, (1993); MA. Economies (with High Distinction), Xavier University, (1984), 17th Place (86%), 1981 Bar Examinations; LLB. (Purple Feather Honor Society), University of the Philippines, (1980); AB. Economies (Summa Cum Laude), De La Salle University, (19% High School (Valedictorian), Xavier University (1971) Grade School (Valedictorian), Xavier University (1967) shed & Distributed by Book Store 256 Nieanor Reyes, Sr. St Tel Hos, 73608-67 »735-13-68 1977 CM, Recto Avenue Nos. 735-55:27 = 735-55-34 PhilippinesV. Larlar, Rector and Fr. Manuel Lipardo, Procurator, which hosted my several stays in finalizing the manuscript of this book and the Recoletos Formation Center in Quezon City through its Rector, Fr. Dionisio Q Selma and Fr. Joel Naranjo Lalso thank Fr. Samson Silloriquez, OAR, parish priest of San Sebastian Parish, who lent me his notes on the process of the for- mation of Canon Law and Fr. Demetrio Penascoza who gave me a history of the canon law, My gratitude goes also to Atty. Antonio Santos, my classmate, present librarian at the UP Law Library and Ms. Marina Satin, San Sebastian Law Librarian, who lent me most of the materials T needed for this book. My thanks also to Ms. Luz Pangilinan and Ms. Janice dela Cruz for typing the manuscript of this book. RUFUS B. RODRIGUEZ April 01, 2001 Manila TABLE OF CONTENTS Preface. Part I. Law In General A. Law, its role in society B. Law, defined 1) _ In its comprehensive sense 2) In its specific sense Law and Morals Law and Customs Law, its general classifications 1. Natural Law b. Moral Law ¢. Divine Law 2. Positive Law F, Law, its nature. 1. The Historical View 2. The Teleological or Philosophical View 3. The Analytical or Positivist View 4. The Functional or Sociological View. 5. The Legal Realist or Pragmatic View 6, The Policy Science View 7. The Marxist-Leninist school PART I. The World’s Legal Systems A. The Legal Systems of the World. 1. The Egyptian Legal System 2. Mesopotamian Legal System 21 24 a7 28 31Hebrew Legal System... Chinese Legal System.. Hindu Legal System Greck Legal System... Roman Legal System (Roman Law) a. Archaie period... b. Republican period... ¢. Classical period 8. Celtic Legal System 9. Slavie Legal System 10. Germanic Legal System. 11. Japanese Legal System... 12. Anglo-American Legal System ... a, Common Law in England b. Common Law in the United States 18. Catholic (Papal) Legal System and the Canon Law ... 14, Mohammedan Legal System oh ‘The Main Legal Traditions of the World ‘The Civil Law Tradition Common Law Tradition ‘The Socialist Tradition Distinctions between Civil Law and ‘Common Law .. PART IIL The Philippine Legal System History and Sources of Philippine Law ... 1. Pre-Spanish Period... a, The Maragtas... b. The Code of Kalantiaw . ©. The Muslim Codes 2. Spanish Period a. Spanish laws... 1. ‘The Brevarium of Alarie 2. Fuero Juzgo 3. 4, Fuero Real... Las Siete Partidas 34 38 42 46 51 65 70 % 79 82 82 97 98 108 108 109 12 14 116 7 17 9 120 123 125 125 127 128, 129 131 9 10. Leyes de Toro .. Nueva Recopilacion Novisima Recopilacion ‘Modern Spanish Codes... b. Colonial laws... ‘The First Philippine Republic (Malolos) ... The American Period a. Organic Laws w... b, Pres. McKinley's Instructions of 1900 .... c. The Spooner Amendment of March 2, 1901 ... ‘The Philippine Bill of 1902. e. The Philippine-Autonomy Act of 1916 The Philippine Commonwealth Period... a. The Tydings-McDutffie Law of 1934 b. The 1935 Philippine Constitution €. The 1935 Philippine Constitution with Amendments). 4. The Government in Exile..... The Second Philippine Republic (Japanese Period) The Third Philippine Republic. a. Civilian Authority Under President Osmefia restored b. The 1947 Amendment (Parity Right. ¢, The 1973 Constitution Martial Law Period. a. The Amendments to the 1973 Constitution srr Provisional Government Fourth Philippine Republic a, The 1987 Constitution ... The Philippine Legal Tradition... L 2, ‘The In Re Shoop Case ‘The Philippine Legal System is a Mixed One but primarily Civil Law... even 133 134 135 136 138 140 144 145 46 148 150 152 156 156 157 161 161 163 168 168 169 169 170 115 7 179 179 184 184 191PART | — LAW IN GENERAL A. Law, its role in society. Law is a dynamic force for maintaining social order and pre- venting chaos in society. It is difficult to imagine the existence of a community without law. Lawmakers, courts, and other officials of the law help to preserve a harmonious society. A basic understand- ing of the law and the legal process of one’s community promotes better understanding of society. Law is not a body of static rules to be obeyed by all citizens subject to its sanctions. Rather, it is a dynamic process by which rules are constantly being adopted and changed to fit the current problems of our evolving society. Law embodies the story of a nation’s development through the centuries. From primitive customs, codes, and practices, the law of the nation evolves becoming a sophisticated system administered by highly trained jurists. Our present-day law should not be taken for granted. It represents years of struggle and thought. To fully appreciate a nation’s legal process, we need 1 understand its past.? B. Law, defined. Lok comprehensive sense. The term “law” in its most comprehensive sense means any rule of action or norm of conduct applicable to all objects of crea- tion. It includes all those which necessarily determine the activity of men, all those which necessarily determine the motions or stincts of brute creatures, and all those which God, before all things, has imprinted on the whole of nature. ‘Grillo. and Schubert, Introduction to Law & The Legal System, Boston, Houghton Mifflin Company, 1989, p. 1 td2 INTRODUCTION TO LAW ‘The word “law” in the English language is used to refer to both the sum of all legal rules (ius, droit, diritto, derecho, Recht) and the express rule laid down by legislative authority (lex, loi, legge, ley, Gesetz). 2. In its specific sense. Law, in its specific sense is a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit? ‘The characteristics of law therefore are: 1) it is a rule of con Guct, 2) promulgated by competent authority, 3) obligatory, and 4) of general observance.* ‘An example is the New Civil Code of the Philippines. It pre: scribes rules of conduct governing the private relations between ‘one person and another on family matters, property, succession and contracts, among others. It was enacted into law in 1950 by the Philippine Congress, the competent authority to promulgate such laws, All Filipino citizens are obliged to follow the rules and norms prescribed by the Code. Finally, the Code is applicable to all Filipinos alike without distinction and therefore of general observ- C. Law and Morals. Morals is the aggregate of all the rules of human conduct growing out of the collective sense of right and wrong in the com- munity? In every community or group of people, certain rules are im- posed on the members because in every people united in society there are wants and demands which are different from one an- other. In the interactions between these rules there arises a set of standards of what is good or bad, and therefore either enjoined or prohibited. These rules then are applied to the members in the 91 Sancher Roman 23. ‘folentino, Commentaries and Jurisprudence on the Civil Code, Vol. 1, Quezon City, Central Lawbook Publishing, 1985, p. 2 "Gamboa, An Introduction to Philippine Laue, 7th Ba,, Quezon City, Central Lawbook Publishing, 1964, p. 3 PART 1— LAW IN GENERAL 8 community, imposing upon them certain definite patterns of good conduct in regard to their external relationships. Every member, in other words, is commanded or forbidden to do or not to do certain things in conformity with the totality of the moral laws of the community. Although laws and morals have a common ethical basis — the social conscience, and a common purpose — the happiness of man, the field of morals is more extensive than that of law. Law covers only social activities, or the relations of man to his fellowman; but the field of morals includes, not only the duties of man to his fellow-being, but also those to himself and to his God. Even among our duties to our fellowmen, many are still dictated by morals, such as those which have a psychological basis, including the du- ties of assistance and eelf-sacrifice.® In view of the distinetion between law and morals, an act may be entirely in conformity with law but contrary to morals; and vice~ versa, conduct may be justifiable from the point of view of morals but contrary to law. Law and morals, according to Colin and Capitant are like two concentric circles; it is, however, perhaps more accu- rate to say that they are like two intersecting circles, with many principles of one of variance with those of the other It is plain that there is much law that has nothing to do with morals. That a driver shall keep to the right or left side of the road, or the traffic laws, have no connection with morals, So, too, is the question of whether there shall be one, two or three witnesses to a wil or deed, Conversely, what is moral may not be legally demanded. A witness to a crime may be morally bound to report said crime but there is no law punishing said witness if he fails to do so. ‘The inter-relationship between law and morals is implanted in our New Civil Code. Article 21 provides: “Any person who wil fully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the lat ter for the damage.” When Chairman Jorge C. Bocobo of the Code Commission was asked whether this proposed article would obliter- ate the boundary line between morality and law, he replied: “The Potentino, op cit, pp. 2-8. Id, p.