COMMON LAW VS CIVIL LAW

1. ) Historical Background
The Philippine Legal System is aptly described as a blend of:
1. customary usage and Roman (civil law)
2. as well as Anglo-American (common laws) system.

The civil law- operates in areas such as family relations, property,

succession, contract and criminal law.

Statutes and principles of a common law origin are evident in such areas
as constitutional law, procedure, corporation law, negotiable instruments,
taxation, insurance, labour relations, banking and currency.
In some Southern parts of the islands, Islamic law is observed.

MAIN SOURCES OF PHILIPPINE LAW:

1. Constitution
-is the fundamental law of the land and as such, it is authority of the
highest order against which no other authority can prevail.

2. Statutes
-are intended to supply the details which the Constitution does not
provide for.

3. Treaties and Conventions

-A treaty is drafted and signed by the parties involved. For example if two
countries are at war, they may sign a “peace treaty” to end the war. But
the convention is drafted and executed under an international body such
as United Nations for the issues that affects multiple countries (or
parties)

Ex: Treaty of Conciliation between the Republic of the Philippines and

the United States of America, Nov. 16, 1946
The Republic of the Philippines and the United States of America, being
desirous to strengthen the bonds of amity that bind them together and
also to advance the cause of general peace.

4. Judicial Decisions
Philippine law is also derived from cases.
 • The Civil Code provides that judicial decisions applying to or
interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines.
Only decisions of its Supreme Court establish jurisprudence and are
binding on all other courts. They are also binding to everyone, much like
the laws are made binding.
These decisions assume the same authority as the statutes to which they
apply or interpret until authoritatively abandoned by the Supreme Court.

LOST IN TRANSLATION: ORAL ADVOCACY IN A LAND

WITHOUT BINDING PRECEDENT
SABRINA DEFABRITIIS
ASSOCIATE PROFESSOR OF LEGAL WRITING, SUFFOLK UNIVERSITY LAW
SCHOOL

✓ Be clear, so the audience understands what is being said.

✓ Be interesting, so the audience will want to listen to what is being

said.

✓ Be persuasive, so the audience will agree with what is being said

DIFFERENCE OF CIVIL LAW & COMMON LAW

➢ COMMON LAW COUNTRIES, case law — in the form of published

judicial opinions — is of primary importance

➢ CIVIL LAW SYSTEMS, codified statutes predominate

❖ COMMON LAW as to JUDICIAL DECISIONS

The common law is a law defined in terms of past judicial decisions. The resulting
methodology is such that the common law perpetually is in flux, always in a
process of further becoming, developing, and transforming, as it cloaks itself with
the habits of past decisions, tailored to the lines of the pending situation.
 ❖ COMMON LAW as to JUDICIAL DECISIONS
In a civil law system, judicial decisions are not a source of law

Generally, the exclusive SOURCES OF LAW IN CIVIL LAW jurisdictions are

1. WRITTEN CONSTITUTIONS
2. is a formal document defining the nature of
the constitutional settlement, the rules that govern the political system
and the rights of citizens and governments in a codified form.

3. CODES
A systematic and comprehensive compilation of laws, rules or
regulations, that are consolidated and classified according the subject
matter.

FIVE BASIC CODES

• the civil code,
• the commercial code,
• the code of civil procedure,
• the penal code, and
• the code of criminal procedure

4. SPECIFIC STATUTES OR DECREES

Statute laws are the rules and regulations promulgated by competent
authorities; enactments of legislative bodies (national or local) or they
may be rules and regulations of administrative (departments or bureau)
or judicial agencies. The deliberations of these laws must be consulted.

5. INTERNATIONAL TREATIES
A treaty is an agreement or a contract between two (bilateral) or more
(multilateral) nations or sovereigns, entered into by agents appointed
(generally the Secretary of Foreign Affairs or ambassadors) for the
purpose and duly sanctioned by supreme powers of the respective
countries.

THE ROLE OF JUDGES

as operators of the legal system, is to apply the applicable Code provisions
to the case before them.
This application requires an adherence to existing Code principles, legal
science and scholarly developed doctrine, but far less emphasis, than the
common law, is placed on discretion and interpretation.
 As such, a civil law judge may sometimes find himself in a position where
he is required to resort to a rulemaking method in order to perform his
duty to decide the case.

For example: a judge may be required to formulate

concepts in cases where the Code refers the judge to use his
judgment.

STYLE OF REASONING:
- In the common law the dominant style of reasoning is inductive:
courts interpret and synthesize earlier court decisions to create general
legal principles and then apply those principles to the facts of the case
before them.

They do the same when applying statutes.1

Accordingly, the common law advocate must focus on fact patterns.

-In the civil law the dominant style of reasoning is deductive: courts
apply general legal principals to specific situations by reasoning with
guidance from scholars

CIVL CODE

Article 8. Judicial decisions applying or interpreting the laws or the

Constitution shall form a part of the legal system of the Philippines. (n)
2. ) Municipal Law

REPUBLIC ACT NO. 386

AN ACT TO ORDAIN AND INSTITUTE THE CIVIL CODE OF THE

PHILIPPINES

PRELIMINARY TITLE

CHAPTER 1
Effect and Application of Laws

Article 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such publication. (1a)

Article 3. Ignorance of the law excuses no one from compliance therewith. (2)

Article 4. Laws shall have no retroactive effect, unless the contrary is provided.
(3)

Article 5. Acts executed against the provisions of mandatory or prohibitory

laws shall be void, except when the law itself authorizes their validity. (4a)

Article 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a third person
with a right recognized by law. (4a)

Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to the
contrary.

When the courts declared a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only

when they are not contrary to the laws or the Constitution. (5a)

Article 8. Judicial decisions applying or interpreting the laws or the

Constitution shall form a part of the legal system of the Philippines. (n)
Article 9. No judge or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the laws. (6)

Article 10. In case of doubt in the interpretation or application of laws, it is

presumed that the lawmaking body intended right and justice to prevail. (n)

Article 11. Customs which are contrary to law, public order or public policy
shall not be countenanced. (n)

Article 12. A custom must be proved as a fact, according to the rules of

evidence. (n)

Article 13. When the laws speak of years, months, days or nights, it shall be
understood that years are of three hundred sixty-five days each; months, of
thirty days; days, of twenty-four hours; and nights from sunset to sunrise.

If months are designated by their name, they shall be computed by the number
of days which they respectively have.

In computing a period, the first day shall be excluded, and the last day
included. (7a)

Article 14. Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in the Philippine territory, subject to the
principles of public international law and to treaty stipulations. (8a)

Article 15. Laws relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad. (9a)

Article 16. Real property as well as personal property is subject to the law of
the country where it is stipulated.

However, intestate and testamentary successions, both with respect to the

order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein said property
may be found. (10a)

Article 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country. (11a)

Article 18. In matters which are governed by the Code of Commerce and
special laws, their deficiency shall be supplied by the provisions of this Code.
(16a)

ARTICLE VI
THE LEGISLATIVE DEPARTMENT

Section 26.

1. Every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof.
2. No bill passed by either House shall become a law unless it has passed
three readings on separate days, and printed copies thereof in its final
form have been distributed to its Members three days before its passage,
except when the President certifies to the necessity of its immediate
enactment to meet a public calamity or emergency. Upon the last reading
of a bill, no amendment thereto shall be allowed, and the vote thereon
shall be taken immediately thereafter, and the yeas and nays entered in
the Journal.

Section 27.

1. Every bill passed by the Congress shall, before it becomes a law, be

presented to the President. If he approves the same he shall sign it;
otherwise, he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at large in its
Journal and proceed to reconsider it. If, after such reconsideration, two-
thirds of all the Members of such House shall agree to pass the bill, it
shall be sent, together with the objections, to the other House by which it
shall likewise be reconsidered, and if approved by two-thirds of all the
Members of that House, it shall become a law. In all such cases, the
votes of each House shall be determined by yeas or nays, and the names
of the Members voting for or against shall be entered in its Journal. The
 President shall communicate his veto of any bill to the House where it
originated within thirty days after the date of receipt thereof, otherwise, it
shall become a law as if he had signed it.
2. The President shall have the power to veto any particular item or items in
an appropriation, revenue, or tariff bill, but the veto shall not affect the
item or items to which he does not object.