Kurado V.

Jalandoni

Facts:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The Philippines during Second World War. He was
charged before a military commission convened by the Chief of Staff of the Armed forces of the
Philippines with having unlawfully disregarded and failed to discharge his duties as such command,
permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and
prisoners of the Imperial Japanese Forces in violation of the laws and customs of war”. The said
military commission was empaneled under the authority of Executive Order 68 of the President of the
Philippines.

Kuroda challenged the validity of Executive Order 68. His arguments, were as follows:

(1) Executive Order 68 is illegal on the ground that it violates not only the provisions of our
constitutional law but also our local laws.

(2) Military Commission has no Jurisdiction to try him for acts committed in violation of the Hague
Convention and the Geneva Convention because the Philippines is not a signatory to the first and
signed the second only in 1947 and, therefore, he is charged with “crime” not based on law, national
or international

(3) Hussey and Port have no personality as prosecutors in this case because they are not qualified to
practice law in Philippines in accordance with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty.

Issue/s:

Whether or not Executive Order 68 had violated the provisions of our constitutional law

Discussions:

The provision of Article 2 Sec 3 states that “The Philippines renounces war as an instrument of
national policy, adopts generally accepted principles of international law as part of the law of the
land, and adheres to the policy of peace, equality, justice freedom, cooperation and amity with all
nations”. Every State is, by reason of its membership in the family of nations, bound by the generally
accepted principles of international law, which are considered to be automatically part of its own
laws.

Ruling:

No. The EO 68 did not violate the provisions of our constitutional law. The tribunal has jurisdiction to
try Kuroda. The said EO is in accordance with Art 2 Section 3 of our Constitution. It is in accordance
with generally accepted principles of International law including the hague and Geneva convention,
and other Jurisprudence of the UN.

Philippines may not be a signatory at that time but the rules and regulations both are wholly based
on a generally accoeted rules and regulations of international law.

REPUBLIC V. SANDIGAN BAYAN

REPUBLIC v. SANDIGANBAYAN, GR No. 104768, 2003-07-21
Facts:
Immediately upon her assumption to office following the successful EDSA Revolution, then
President Corazon C. Aquino issued Executive Order No. 1 ("EO No. 1") creating the Presidential
Commission on Good Government ("PCGG"). EO No. 1 primarily tasked the PCGG to recover all...
ill-gotten wealth of former President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates. EO No. 1 vested the PCGG with the power "(a) to conduct
investigation as may be necessary in order to accomplish and carry out the purposes of this... order"
and the power "(h) to promulgate such rules and regulations as may be necessary to carry out the
purpose of this order." Accordingly, the PCGG, through its then Chairman Jovito R. Salonga, created
an AFP Anti-Graft Board ("AFP Board") tasked to investigate reports of... unexplained wealth and
corrupt practices by AFP personnel, whether in the active service or retired.
. On 27 July 1987, the AFP Board issued a Resolution on its findings and recommendation on the
reported unexplained wealth of
Ramas.
Evidence in the record showed that respondent is the owner of a house and lot located at 15-Yakan
St., La Vista, Quezon City. He is also the owner of a house and lot located in Cebu City. The lot has
an area of 3,327 square meters.
Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army,
stationed at Camp Eldridge, Los Baños, Laguna, disclosed that Elizabeth Dimaano is the mistress of
respondent. That respondent usually goes and stays and sleeps in the alleged house... of Elizabeth
Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives, Elizabeth Dimaano
embraces and kisses respondent. That on February 25, 1986, a person who rode in a car went to
the residence of Elizabeth Dimaano with four (4) attache cases filled with money and... owned by
MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of
income and is supported by respondent for she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military equipment/items
seized in her house on March 3, 1986 without the consent of respondent, he being the Commanding
General of the Philippine Army. It is also impossible for Elizabeth Dimaano to... claim that she owns
the P2,870,000.00 and $50,000 US Dollars for she had no visible source of income.
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379 ("RA
No. 1379") [4] against Ramas.
The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army
until 1986. On the other hand, Dimaano was a confidential agent of the Military Security Unit,
Philippine Army, assigned as a clerk-typist at the office of Ramas from 1 January 1978 to
February 1979. The Amended Complaint further alleged that Ramas "acquired funds, assets and
properties manifestly out of proportion to his salary as an army officer and his other income from
legitimately acquired property by taking undue advantage of his public office and/or... using his
power, authority and influence as such officer of the Armed Forces of the Philippines and as a
subordinate and close associate of the deposed President Ferdinand Marcos."
The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found reasonable
ground to believe that respondents have violated RA No. 1379.[6] The Amended Complaint prayed
for, among others, the forfeiture of respondents' properties,... funds and equipment in favor of the
State.
Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim to
the Amended Complaint. In his Answer, Ramas contended that his property consisted only of a
residential house at La Vista Subdivision, Quezon City, valued at P700,000, which was not out... of
proportion to his salary and other legitimate income. He denied ownership of any mansion in Cebu
City and the cash, communications equipment and other items confiscated from the house of
Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a clerk-
typist in the office of Ramas from January-November 1978 only, Dimaano claimed ownership of the
monies, communications equipment, jewelry and land titles taken from her house by the
Philippine Constabulary raiding team.
After presenting only three witnesses, petitioner asked for a postponement of the trial.
The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly
because of its many postponements. Moreover, petitioner would want the case to revert to its
preliminary stage when in fact the case had long been ready for trial. The Sandiganbayan... ordered
petitioner to prepare for presentation of its additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its inability to present further evidence.
Giving petitioner one more chance to present further evidence or to amend the complaint to conform
to its evidence, the Sandiganbayan reset the trial to 18 May 1990. The
Sandiganbayan, however, hinted that the re-setting was without prejudice to any action that private
respondents might take under the circumstances.
Private respondents then filed their motions to dismiss based on Republic v. Migrino.[9] The Court
held in Migrino that the PCGG does not have jurisdiction to investigate and prosecute military
officers by reason of mere position... held without a showing that they are "subordinates" of former
President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of which
states:
WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without
pronouncement as to costs. The counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry and land titles are ordered...
returned to Elizabeth Dimaano
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint on the following grounds:
(1.)
The actions taken by the PCGG are not in accordance with the rulings of the Supreme Court in Cruz,
Jr. v. Sandiganbayan[10] and Republic v. Migrino[11] which involve the same issues.
(2.)
No previous inquiry similar to preliminary investigations in criminal cases was conducted against
Ramas and Dimaano.
(3.)
The evidence adduced against Ramas does not constitute a prima facie case against him.
(4.)
There was an illegal search and seizure of the items confiscated.
The raiding team seized these items: one baby armalite rifle with two magazines; 40 rounds of 5.56
ammunition; one pistol, caliber .45; communications equipment, cash consisting of
P2,870,000 and US$50,000, jewelry, and land titles.
Issues:
The Issues
PCGG's Jurisdiction to Investigate Private Respondents
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Third Issue: Legality of the Search and Seizure
Ruling:
The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and cause
the filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth under RA No.
1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of
AFP personnel, whether in the active service or retired.[15] The PCGG tasked the AFP Board to
make the necessary recommendations to appropriate government agencies... on the action to be
taken based on its findings.[16] The PCGG gave this task to the AFP Board pursuant to the PCGG's
power under Section 3 of EO No. 1 "to conduct investigation as may be necessary in order to
accomplish and to carry out the purposes of this... order." EO No. 1 gave the PCGG specific
responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:
(a)
The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates, whether located in the Philippines or
abroad, including the takeover and sequestration of all business... enterprises and entities owned or
controlled by them, during his administration, directly or through nominees, by taking undue
advantage of their public office and/ or using their powers, authority, influence, connections or
relationship.
(b)
The investigation of such cases of graft and corruption as the President may assign to the
Commission from time to time.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt
practices of AFP personnel who fall under either of the two categories mentioned in Section 2 of EO
No. 1. These are: (1) AFP personnel who have accumulated ill-gotten wealth during the...
administration of former President Marcos by being the latter's immediate family, relative,
subordinate or close associate, taking undue advantage of their public office or using their powers,
influence x x x;[17] or (2) AFP personnel involved in other... cases of graft and corruption provided
the President assigns their cases to the PCGG.[18]
Petitioner, however, does not claim that the President assigned Ramas' case to the PCGG.
Therefore, Ramas' case should fall under the first category of AFP personnel before the PCGG
could exercise its jurisdiction over him. Petitioner argues that Ramas was undoubtedly a...
subordinate of former President Marcos because of his position as the Commanding General of the
Philippine Army. Petitioner claims that Ramas' position enabled him to receive orders directly from
his commander-in-chief, undeniably making him a subordinate of former President
Marcos.
We hold that Ramas was not a "subordinate" of former President Marcos in the sense contemplated
under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a "subordinate" as this term
is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association with former
President Marcos. Migrino discussed this issue in this... wise:
A close reading of EO No. 1 and related executive orders will readily show what is contemplated
within the term `subordinate.' The Whereas Clauses of EO No. 1 express the urgent need to recover
the ill-gotten wealth amassed by former President Ferdinand E. Marcos,... his immediate family,
relatives, and close associates both here and abroad.
EO No. 2 freezes `all assets and properties in the Philippines in which former President Marcos
and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation.'
Applying the rule in statutory construction known as ejusdem generis that is-
`[W]here general words follow an enumeration of persons or things by words of a particular and
specific meaning, such general words are not to be construed in their widest extent, but are to be
held as applying only to persons or things of the same kind or class as... those specifically
mentioned
T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one who enjoys a close association with
former President Marcos and/or his wife, similar to the immediate family member, relative, and close
associate in EO No. 1 and the close relative, business associate,... dummy, agent, or nominee in EO
No. 2.
There must be a prima facie showing that the respondent unlawfully accumulated wealth by virtue of
his close... association or relation with former Pres. Marcos and/or his wife.
Ramas' position alone as Commanding General of the Philippine Army with the rank of Major
General[19] does not suffice to make him a "subordinate" of former President Marcos for purposes
of EO No. 1 and its amendments. The PCGG has to provide a prima... facie showing that Ramas
was a close associate of former President Marcos, in the same manner that business associates,
dummies, agents or nominees of former President Marcos were close to him. Such close association
is manifested either by Ramas' complicity with former
President Marcos in the accumulation of ill-gotten wealth by the deposed President or by former
President Marcos' acquiescence in Ramas' own accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioner's attempt to differentiate the instant case from Migrino does not convince us. Petitioner
argues that unlike in Migrino, the AFP Board Resolution in the instant case states that the AFP
Board conducted the investigation pursuant to EO Nos.
1, 2, 14 and 14-A in relation to RA No. 1379. Petitioner asserts that there is a presumption that the
PCGG was acting within its jurisdiction of investigating crony-related cases of graft and corruption
and that Ramas was truly a subordinate of the former President. However, the... same AFP Board
Resolution belies this contention. Although the Resolution begins with such statement, it ends with
the following recommendation:
V.
RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for
violation of RA 3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices Act" and
RA 1379, as amended, otherwise known as "The Act for the Forfeiture of Unlawfully
Acquired Property."[20]
Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos.
1, 2, 14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and 1379
without any relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1... and its
amendments proves fatal to petitioner's case. EO No. 1 created the PCGG for a specific and limited
purpose, and necessarily its powers must be construed to address such specific and limited
purpose.
Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that the
properties Ramas allegedly owned were accumulated by him in his capacity as a "subordinate" of
his commander-in-chief. Petitioner merely enumerated the properties Ramas allegedly owned... and
suggested that these properties were disproportionate to his salary and other legitimate income
without showing that Ramas amassed them because of his close association with former President
Marcos. Petitioner, in fact, admits that the AFP Board resolution does... not contain a finding that
Ramas accumulated his wealth because of his close association with former President Marcos
Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-gotten
wealth was accumulated by a "subordinate" of former President Marcos that vests jurisdiction on
PCGG. EO No. 1[22] clearly premises the creation... of the PCGG on the urgent need to recover all
ill-gotten wealth amassed by former President Marcos, his immediate family, relatives, subordinates
and close associates. Therefore, to say that such omission was not fatal is clearly contrary to the
intent behind the creation of the
PCGG.
However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling under the
foregoing categories, require a previous authority of the President for the respondent PCGG to
investigate and prosecute in accordance with Section 2 (b) of Executive Order
No. 1. Otherwise, jurisdiction over such cases is vested in the Ombudsman and other duly
authorized investigating agencies such as the provincial and city prosecutors, their assistants, the
Chief State Prosecutor and his assistants and the state prosecutors. (Emphasis... supplied)
The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture
petitions not falling under EO No. 1 and its amendments. The preliminary investigation of
unexplained wealth amassed on or before 25 February 1986 falls under the jurisdiction of the
Ombudsman, while the authority to file the corresponding forfeiture petition rests with the Solicitor
General.
After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the
absence of a prima facie finding that Ramas was a "subordinate" of former President Marcos. The
petition for forfeiture filed with the Sandiganbayan should be... dismissed for lack of authority by the
PCGG to investigate respondents since there is no prima facie showing that EO No. 1 and its
amendments apply to respondents. The AFP Board Resolution and even the Amended Complaint
state that there are violations of RA Nos. 3019 and

1379. Thus, the PCGG should have recommended Ramas' case to the Ombudsman who
has jurisdiction to conduct the preliminary investigation of ordinary unexplained wealth and
graft cases.

Petitioner's argument that private respondents have waived any defect in the filing of the forfeiture
petition by submitting their respective Answers with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in the
first place.
Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the
preliminary investigation. The Ombudsman may still conduct the proper preliminary investigation for
violation of RA No. 1379, and if warranted, the Solicitor General may file the... forfeiture petition with
the Sandiganbayan.[32] The right of the State to forfeit unexplained wealth under RA No. 1379 is not
subject to prescription, laches or estoppel.[33]
Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner has
only itself to blame for non-completion of the presentation of its evidence. First, this case has been
pending for four years before the Sandiganbayan dismissed it. Petitioner... filed its Amended
Complaint on 11 August 1987, and only began to present its evidence on 17 April 1989. Petitioner
had almost two years to prepare its evidence. However, despite this sufficient time, petitioner still
delayed the presentation of the rest of its evidence by filing... numerous motions for postponements
and extensions. Even before the date set for the presentation of its evidence, petitioner filed, on 13
April 1989, a Motion for Leave to Amend the Complaint.
The Sandiganbayan overlooked petitioner's... delays and yet petitioner ended the long-string of
delays with the filing of a Re-Amended Complaint, which would only prolong even more the
disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to
dismiss the case since the PCGG has no jurisdiction to investigate and prosecute the case against
private respondents. This alone would have been sufficient... legal basis for the Sandiganbayan to
dismiss the forfeiture case against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of the
presentation of petitioner's evidence.
Petitioner wants the Court to take judicial notice that the raiding team conducted the search and
seizure "on March 3, 1986 or five days after the successful EDSA revolution."[39] Petitioner argues
that a revolutionary government was operative at that time... by virtue of Proclamation No. 1
announcing that President Aquino and Vice President Laurel were "taking power in the name and by
the will of the Filipino people."[40] Petitioner asserts that the revolutionary government effectively
withheld the operation of... the 1973 Constitution which guaranteed private respondents'
exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only
beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner contends that
all rights under the Bill of Rights had already reverted to its embryonic... stage at the time of the
search. Therefore, the government may confiscate the monies and items taken from Dimaano and
use the same in evidence against her since at the time of their seizure, private respondents did not
enjoy any constitutio
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President Aquino's
Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was "done in defiance of the
provisions of the 1973 Constitution."[41] The resulting government was indisputably a revolutionary
government bound by no constitution or legal limitations except treaty obligations that the
revolutionary government, as the de jure government in the Philippines, assumed under
international... law.
The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights of
the 1973 Constitution during the interregnum, that is, after the actual and effective take-over of
power by the revolutionary government following the... cessation of resistance by loyalist forces up
to 24 March 1986 (immediately before the adoption of the Provisional Constitution); and (2) whether
the protection accorded to individuals under the International Covenant on Civil and Political Rights
("Covenant") and the
Universal Declaration of Human Rights ("Declaration") remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum.
However, we rule that the protection accorded to individuals under the Covenant and the Declaration
remained in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary government were the supreme
law because no constitution limited the extent and scope of such directives and orders. With the
abrogation of the 1973 Constitution by the successful revolution, there was no... municipal law
higher than the directives and orders of the revolutionary government. Thus, during the interregnum,
a person could not invoke any exclusionary right under a Bill of Rights because there was neither a
constitution nor a Bill of Rights during the interregnum
To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum
would render void all sequestration orders issued by the Philippine Commission on Good
Government ("PCGG") before the adoption of the Freedom Constitution. The sequestration... orders,
which direct the freezing and even the take-over of private property by mere executive issuance
without judicial action, would violate the due process and search and seizure clauses of the Bill of
Rights.
During the interregnum, the government in power was concededly a revolutionary government
bound by no constitution. No one could validly question the sequestration orders as violative of the
Bill of Rights because there was no Bill of Rights during the interregnum. However, upon... the
adoption of the Freedom Constitution, the sequestered companies assailed the sequestration orders
as contrary to the Bill of Rights of the Freedom Constitution.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum,
absent a constitutional provision excepting sequestration orders from such Bill of Rights, would
clearly render all sequestration orders void during the interregnum.
Nevertheless, even during the interregnum the Filipino people continued to enjoy, under the
Covenant and the Declaration, almost the same rights found in the Bill of Rights of the 1973
Constitution.
The revolutionary government, after installing itself as the de jure government, assumed
responsibility for the State's good faith compliance with the Covenant to which the Philippines is a
signatory. Article 2(1) of the Covenant requires each signatory State "to respect... and to ensure to
all individuals within its territory and subject to its jurisdiction the rights[45] recognized in the present
Covenant." Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure
that "[n]o one shall be... subjected to arbitrary or unlawful interference with his privacy, family, home
or correspondence."
The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that "[n]o
one shall be arbitrarily deprived of his property."
The revolutionary government did not repudiate the Covenant or the Declaration during the
interregnum. Whether the revolutionary government could have repudiated all its obligations under
the Covenant or the Declaration is another matter and is not the issue here.
Suffice it to... say that the Court considers the Declaration as part of customary international law,
and that Filipinos as human beings are proper subjects of the rules of international law laid down in
the Covenant. The fact is the revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the State's good faith compliance with
its treaty obligations under international law.
uring the interregnum when no constitution or Bill of Rights existed, directives and orders issued by
government officers were valid so long as these officers did not exceed the authority granted them
by the revolutionary government.
However, the Constabulary raiding team seized items not included in the warrant. As admitted by
petitioner's witnesses, the raiding team confiscated items not included in the warrant, thus:
It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies,
communications equipment, jewelry and land titles that the raiding team confiscated.
The seizure of these items was therefore void, and unless these items are contraband per se,[53]
and they are not, they must be returned to the person from whom the raiding seized them.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the
Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037, remanding the
records of this case to the Ombudsman for such appropriate action as the evidence may... warrant,
and referring this case to the Commissioner of the Bureau of Internal Revenue for a determination of
any tax liability of respondent Elizabeth Dimaano, are AFFIRMED.

Philosophy of Law

Sources:
 Philawsophia: Philosophy and Theory of Philippine Law by Bernardo, N. and Bernardo, O.
 The Case of the Speluncean Explorers
 Kuroda v Jalandoni G.R. No. L-2662
 Public v Sandiganbayan G.R. No. 104768

Notes:

If man is truly good, as Ovid and Seneca held, 

 then he could be let alone without law. 
 He could only make good laws
if man is naturally vicious, as the Chinese Legists argue, 
 then he would need the tempers of the law.
 He could only make bad laws
If man is potentially good but he is an imperfect creature
 Man made laws can be good but imperfect.

What is Sui Juris?

    Granting a man has his own will and reason, he is a sui juris - A law unto himself. He can get alone
without law. 

Social Contract
    Man has to deal with other sui juris like himself. He has to make concessions, an agreement to live
under a common rule, a social contract.

What is Law?
“Law” connotes the binding rules - the dos and the don'ts of social order.
 It is a rule of conduct
o It serves as a guide for an individual in relation to his community
 It must be just
o It should be morally right
 It must be obligatory
o It should be enforced with penalties
 Laws must be prescribed by legitimate authority
 Laws must be ordained for the common benefit
 o It should be made for the majority

What is Jurisprudence?
    From the latin word juris and prudentia, it means the “prudence of law” or “practical knowledge of
law”

Branches of Law
 Jural Law/Human Law - sanctioned or enacted laws
o Statutes
o Case laws
o Normative rules
o precepts
 Non-Jural Law - rules not anchored or premised on human promulgation
o Divine law
 Proceeds from sacred writings such as the Bible or the Qur’an, sustained by
religious fate
o Natural law
 Law of our human nature, based on the demands of our humanity
o Physical law
 Refers to the mechanical laws of the universe

Classifications in terms of right or procedure

 Jural law may be classified into substantive or remedial.
 Substantive law establishes rights, duties, and corollary prohibitions
 Remedial or procedural or adjective law prescribes the manner of administering,
enforcing, appealing amending, and using legal rights and claims.

Classification in terms of scope

 Public or Political Law is concerned with the structures of government, and the
relationship between individual and state.
 Private Law is concerned with the rules of governing the relationship of individuals
 Criminal Law is concerned with public order, its violations  and punishable acts or
omissions
 Civil Law is concerned with the rules of civility; property, marriage, succession, contracts, and
torts or private wrongs.
 Mercantile Law is concerned with the regulation of commercial transactions in the management
of business
   
Promulgation and Authority
    The final step of law-making process is its notice to the public. The public should be able to
take notice of the law by some kind of advertisement, whether by publication or, in some
jurisdictions by hear yeas (“oyez”) of public crier.
    Article 2 of the Civil Code.

What is the Rule of Law?

    It refers to a principle of governance in which all persons, institutions and entities, public and
private, including the State itself, are accountable to laws that are publicly promulgated,
equally enforced and independently adjudicated, and which are consistent with international
human rights norms and standards.
    Requirements:
 Measures to ensure adherence
  Equality before the law
 Accountability to the law
 Fairness in the application
 Separation of powers
 Participation in decision making
 Legal certainty
 Avoidance of arbitrariness 
 Procedural and legal transparency

What is the civil code system?

    It refers to a legal system based on coded law. Laws are codified through parliamentary
statutes.
    Followed by:
 Code of Hammurabi
 Babylonian Law Code
 The Justinian Code or the Roman Law Code

What is the common law system?

    Is based on case law or judge-made law that relies on precedents set by judges in court
case.
    Followed by:
 Britain
 United States
 Canada
 Ireland
 Australia
 India

The Philippines, which experienced both Hispanic and American occupations, has a mixed
system. Laws are enacted by legislation, which are interpreted, developed, and applied by the
courts, whose decisions are considered part of the law of the land.

What is Islamic Law or Sharia Law?

    Sharia Law (“the way to follow”) is based on the moral precepts of Islam. It is derived from
four sources:
 The Qur’an - the word of God as given to the prophet Muhammad
 The Sunna - the sayings and acs of Muhammad according to tradition or hadith
 The judicial consensus of Islamic Judges(qadis)
 Analogical reasoning used in circumstances not provided in the other sources

Law and Truth

    In requiring the witnesses to subscribe and swear on the truthfulness or veracity of their
statements. The law is presuming that:
 There is a truth or actual state of things
 Witnesses are obliged to tell or abide by it
The law recognised the value of truth-telling, or at least, truth-seeking to implement what is
proper, just, and right.
Relativists - the truth is relative, subjective, perspectival, and limited by what the person(the
witness) personally experienced or gained knowledge of. 
Objectivists - there is an external reality or objective truth independent of what a person thinks,
feels, or believes in and this can be discovered by the proper use of the senses and reason. If a
reason or explanation cannot be verified, then it is a mere rationalization or excuse.

“There is no truth” is contradictory because the statement itself if the truth

Fact of Case - is the “truth” which is verified with an independent observation

Opinions - the “truth” of the matter is based on subjectivities
Non-facts - “truth” that cannot be verified and is only relying on personal taste or views
depending on personal aesthetic culture.
Expert Opinions - opinion that is more informed, well-analyzed, and consistent with reality due
to familiarity or specialty in the field of inquiry.

Legal Truth
    If science has its own method of determining the truth, law has established its rules of
evidence.

What is evidence?
    Evidence is defined as the means, sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact. For evidence to be admissible, it must be:
 Relevant to the issue
 Not excluded by law
What may be declared as true is only the “legal truth” or “judicial truth”. Hence, legal
judgements on facts are not necessarily the “substantive truth” or complete, actual truth of
what occurred.

Law, Authority, and Force

There are three ways of how authority establishes itself in society:
 Charisma - grace in greek, as the personal ascendancy that an individual gains
in a society through passion and determination for a cause or mission, and his
success gave him an aura of legitimacy
 Tradition - the authority from a leader is passed on to his successor or heirs.
 Law - through legal dominion, is impersonal. The officers operate through
institutions, under given terms, periods, and conditions.

Should law be Enforced?

Anarchists - think that any form of violence or coercion is wrong and offends morality. The only
real law must be consensual.

Confucius - the ingredients to prevent and arrest crimes are not stern punishments but a sense
of shame for misbehavior, cultivation of virtue, education on right and wrong, respect for
authority, and the elderly showing good examples.

Social Contract Theorists - think that constraint is necessary and moral, since society is
presumed to have given consent to follow the law in establishing a Constitution and the state. 

How do we enforce international law?

 Under international law, states are tempered from using force against each other since
every member of the international community is by principle given equal status and
consideration on domestic policies. States are presumed to be civilized, matured, self
determining, and independent.
States have a natural tendency towards order. Thus, international is a true law but not in
a traditional sense. It does not need enforcement.

Who is the Father of International Law?

    It is thought that Hugo Grotius was not the first to formulate the international society
doctrine, but he was one of the first to define expressly the idea of one society of states,
governed not by force or warfare but by actual laws and mutual agreement to enforce those
laws. 

Law and Mores

    What is legal is not necessarily moral and what is moral is not necessarily legal. Still, even
when there is no absolute correspondence between law and morality, there is still a relation
recognized by law itself between law and morals.
    In criminal law, there are crimes that are considered mala in se, or those offenses that are
prohibited because they are considered wrong themselves.

Morality
    Religious Morality - followed by states where there is no separation between Church and
State (
 the law must reflect what is considered moral and established religion.
 Concerns itself with public order and affairs and private matters and preferences
    Secular Morality / Public Morals - followed by states where there is separation between
Church and State
 It is morality based on popular ideals, sources of law, and common aspirations.
 Concerns itself with public order and affairs only
 Associated with natural law morality according to common-held principles of
reason, justice, and equity, deemed as “natural” aspirations of men

What is ethics?
    It refers to the secular standards of responsibility and accountability specific to professional
areas of practice.

Law, Justice, and Equality

What is Justice?
    Justice is “equality in proportion” to render to each what is due. The propriety and
sufficiency of the act, more than its equalizing effect if the situation is not equal in the first
place. 

What is Legal or Formal Equality?

Everyone must be given equal opportunity to measure up to the law.

Doctrine of Reasonable Classification

    Things that are fundamentally different cannot be treated the same. Lady Justice cannot be
blind of distinction. Quality does not have to mean the same treatment but “proportional
treatment”
Egalitarianism
    All men are created equal refers to one’s humanity, meaning, we are all equal in terms of
being human, and the rights and duties arising from the fact of being human, regardless of
status.

What is the original position?

    Under the veil of ignorance, we are unaware of our place in society. You would assume that
you would fit into anyone’s shoes.

Legal Theory
    It refers to a topology of discourses about the origin, purpose, and character of law. It
evaluates and prescribes how a body of conduct becomes the norm, rules, or obtains binding
effect.

Theory of a case
    It refers to the principles, claims, or grounds under which a litigant proceeds.

Natural Law Theory

    The natural law theory or teleological theory believe that the law serves a higher universal
order or “natural order”, which we can discover through our common human reason, needs, and
aspirations and validated by human experience.
    Natural law is an example of “normative jurisprudence”, which evaluates the purposes or
norms behind the law. Law are rules for man to realize his basic natural goods and when
shared, become society’s common good.

Phases of Natural Law Theory

    The Natural law theory has undergone distinct developments.
 The Classical Phase by ancient Greek and Roman philosophers
o Believes that human reason is common among men and along with this,
the common precepts of right law and equity.
o Virtue Jurisprudence - is the set of theories of law related to virtue ethics.
By making the aretaic turn in legal theory, virtue jurisprudence focuses on
the importance of character and human excellence or virtue to questions
about the nature of law, the content of the law, and judging.
o Antigone
 Scholastic Phase
o Taught that natural law is man’s participation with eternal law.
o Thomism
 Enlightenment or Modern Phase
o Used natural law as a basis for natural rights and duties
 International Law Phase
o In reference to general principles of law and international rights; a
common law for mankind

Who is the Father of Natural Law?

    Aristotle is regarded as the Father of Natural Law for having articulated the existence of
natural justice and natural rights(dikaion physikon).

Basic goods natural to man, by John Finnis

  Life
 Knowledge
 Play
 Aesthetic experience
 Sociability (friendship)
 Practical reasonableness
 Spirituality/Religion
LEGAL THEORIES
- Positivist
- Interpretivist/Constructivist
- Realist
- Critical

Positivist Theory
    Also known as the “command theory”or “conventionalism”, positivism highlights obedience to
the content and expression of the law Dura lex, sed lex (the law is hard, but that is the law) and
quod principi placuit legis habet vigorem(whatever pleases the prince has the force of law).
    Positivism is an example of “analytic jurisprudence” that studies and recognizes law simply
for (what it is) lex lata. No ifs or buts or referents to judge the law other than the law itself.
    Legalism is the extreme utilitarian Hobbesian form of positivism. The lawmaker has no need
for precedent, rules of procedure, or processes since his acts are, after all, the law.
    Absolutism vests public power in a person or group of persons, unhampered by any other
rule or tradition, institution, or body.

Interpretivist or Constructivist Theory

     It points that the law is more than explicitly adopted rules. It has its merits or principles that
can be “interpreted” or “constructed” by the courts to contribute the growth of law. It is rights-
based, pro-active construction of the law, against the by-the-rule reading of the law of
positivism.
   
Dimensions of legal interpretation:
 Formal dimension
o Look for logical consistency between principles and past decisions
 Substantive dimension
o Look for principles that best explain or justify the law, which is construed as
having a moral rights-based dimension. 

Realist Theory
    Sometimes labeled as “pragmatic jurisprudence” focuses on these human realities that are
often overlooked by hard law, technicalities, and abstract policies. It brings significance into the
question of implementation and whether the law reflects practical experience.

The Critical Theory

    It questions the law’s assumptions, such as the assumption that the people are free, and that
the market is free. Rather, people’s choices and the market’s behavior are already conditioned
by economic, social, ideological, and political forces, or the present “hegemony”.
    The critical theory is associated with subversives as it aims for a “deconstruction” of the law
and uses the “hermeneutics of suspicion” against legal presumptions, and doctrines to
advance marginalized causes. 
Consequentialism
    the class of normative ethical theories holding that the consequences of one's conduct are
the ultimate basis for any judgment about the rightness or wrongness of that conduct

Schools of Jurisprudence
    The study and growth of law is not solipsistic but should be pursued and enriched in relation
to institutions and non-legal fields and disciplines such as:
 Historical School
o The law is not simply made; it is in the making.
o The historical school holds that the law has a past and a progression.
o Law operates in a specific language, impressed by cultural beliefs, Atraditions,
customs, temperaments, and the common experiences and consciousness
(geist) of people.
o The law is therefore the product of a national genius
 Functional or Sociological School
o The law is both a means of social control and progress
o The sociological school looks into law as a social phenomenon, as a measure of
social trends and reengineering.
 Economic Approach
o The purpose of law is to increase the balance of happiness in society through
wealth maximization
 “Wealth Maximization”- Ethic of Productivity and social cooperation
 Wealth plays a vital role in wealthier societies as they are more
empowered and enjoy more freedom and quality of life
 Formalist and Originalist School
o Legal formalism or conceptualism holds that the law is a strict science governed
by formal axioms, legal principles, and rules of logic.
o Textualism –“plain meaning approach” is committed to a set of rules or
principles in relation to the application of legal concepts fixed at the time of the
law’s creation.
o Originalism –“Original meaning Approach” is the approach in relation to the
interpretation of the constitution. 
o It considers the original intent of the drafters, or the original meaning based on
what reasonable persons at the time the law was written to declare the law to
mean in its initial framework.
o It adheres to judicial restraint that constrains a judge from deciding or opening on
what the law should be or should mean other that what the law says or does not
say.

Practice Theory
    In Constitutional Interpretation, the different approaches to law, or modalities, have their own
uses. There are six main modalities:
 Historical
o Which must be used when the intention is to decipher what was really
meant by the framers of the law
 Textual
o In looking for what the law simply declares or denies and how it can be
interpreted in contemporary times.
 Structural
o Inferring rules from structures and mandates
  Doctrinal
o Applying rules generated by precedent
 Ethical or moral
o Appealing on the ethos or ideals of a government (teleological)
 Prudential
o According to exigencies and the calculus of costs and benefits

CHAPTER IV
Ideal Law   
Plato’s The Republic
    The ideal regime of Plato, envisions a Stasist type of regime ruled by a benevolent dictator
(an educated philosopher-king).
    Natural Law for plato is not the law of the common man or the popular law of the majority, but
the law of the ideal man. The ideal man does not exist, and yet we have a common idea of what
a perfect man should be and this should be the goal of law.
    Plato believed in the stratifying society into classes. But the basis would not be wealth, race,
or gender, but education on justice, goodness, and virtue.
 The noble ruler(the head)
 The warrior(the heart)
 The workers(the stomach)
   
Plato’s The Laws
But the government of philosophers may not always be feasible. The rule of law is a
substitute to the rule of the philosopher. In the laws, Plato conceived a more diplomatic state,
whose laws appeal to people's reason and rational discourse. 
Punishment is not necessary provided that through successful education and
socialization, the people have predisposed to observe what the state contemplates as right via
rational persuasion
For people who do not follow, they will have to undergo both “instruction” and
“constraint”. 
For those with wrongdoings, they will be mutilated from the society. Capital punishment
may be imposed to protect the state from its vicious members
 First punishment is a warning against injustice
 Second is to free the State from scoundrels (death penalty in cases determined
by legislators)
    The Philippine Constitution operates in the same principle.
Aristotle’s Rational Law
    Aristotle observed that human beings have a rational nature that must be followed as a
matter of law. Natural law must not be confused with animalistic biologism because man, as a
moral creature, has advanced from primitivity.
    The best political system is supposed to cultivate human nature. The law bids us to do the
acts of a balanced and temperate man, of someone we admire would do in the
circumstances(Jesus Test: Would Jesus do it?).

Types of Constitution
 Monarchy - one man rule
 Aristocracy - rule of few good men
 Polity - rule of men with equal merits
 Tyranny- oppressive ruling
 Oligarchy- Small group of people ruling
  Radical Democracy-

Aristotle and Democracy

    Polity and Democracy is the most stable since monarchy risks the intemperance of its leader,
while rivalries and infighting hound on aristocracy. 
    Democracies are more secure when there is a large number of empowered middle class than
when a population is divided into extremes of poor and rich.
    A good government establishes a political law that conforms with rational principles of right
and equity. There must be a Constitution(politeia) that provides general rules and guidelines
on the administration of the State. For future disputes, contingencies, laws(nomos) must be
promulgated
    When there is a grey area in the law, equity(espikeia) must be resorted to properly apply and
interpret the law.

Categorical Reasoning
    It involves three univocal or unequivocal terms and three judgements with logical necessity.
Terms:
 Minor term
o The subject term in a conclusion
 Major term
o The predicate term in a conclusion
 Middle term
o The common term that connects the major and minor terms not found in the
conclusion but only in the premises
Judgements
 Major Premise
o The first inference given in am argument amd is a general statement
 Minor Premise
o The particular statement or inference leading to a conclusion
 Conclusion
o The proposition being supported or affirmed by the premises.
Hypothetical Reasoning
It refers to compound propositions implying each other. Hypothetical reasoning and
questions(if-when) are objectionable in direct and cross-examinations for being “speculative”
except when the witness is an expert on the field of inquiry   

Syllogism
    A syllogism is valid and true when the conclusion follows necessarily from true premises. The
rules of a valid syllogism are:
 A negative premise - that makes a negative conclusion
 Middle term - should be universal or always true
 Three univocal terms  - with two of the three terms appearing by pairs per
inference
 The conclusion - must not be greater than the premises.

Conditional Syllogism
    One cause (consequent) is based on the condition that the other (antecedent) is true, forming
an “if-then” clause
 It must be the property of the antecedent to produce the consequent
 If the antecedent is true, the consequent is true
  If the antecedent is false, the consequent is doubtful
 If the consequent is false, the antecedent is false
 If the consequent is true, the antecedent is doubtful

Disjunctive Syllogism
    One statement is true between alternatives, thus their disjunction, forming an “either-or”
clause
 The two alternatives must be contradictory or mutually exclusive
 If one is true, the other is false
 If one is false, the other is true

Conjunctive Syllogism
    We deny the simultaneous possibility of two alternatives, in a “not-and-both” form, like in a
statement: “I cannot be both here and there”
 The logical contrary rule, both cannot be true at the same time.
 If one turns out to be false, the other may be true or not (like in defenses of alibi)

The Stoics on Jus Naturale

    Natural law theory became a practical solution to justify laws that would be made universal.
These are jus gentium founded on jus naturale.
    The Stoics believed that there is a “true law” discoverable by “right reason” and shared and
enforceable against all persons. There is an emphasis on the equality of all men governed by
the same law.
    The term “stoic” has been identified with “apathy” because stoics suppress pleasure or pain
to clear the mind for what is really good.

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