Friday, July 22, 2022

ITL - TOPIC 1A: Becoming a Lawyer

Sections 1 to 16 of Rule 138 of the Rules of Court - an Outline

The requirements for being a lawyer
Requirement 1: Citizenship, residence, age, moral qualifications
o Citizen of the Philippines - duly authenticated copy of your birth certificate
o Resident of the Philippines
o 21 years of age
o Good moral character - any law professors can execute an affidavit of good
moral character upon graduation, but the law school can deny such certification if
the student had not exhibited such character even if one had passed the
academic requirements
o No charges involving moral turpitude - may be filed or pending before any
court

Requirement 2: Educational qualifications

o Bar subjects:
o Civil law, commercial law, remedial law, criminal law, public and private
international law, political law, labor and social legislation, medical,
taxation and legal ethics.
o Non-bar subjects:
o statutory construction, legal research, practice court, legal counseling, etc.

ITL – TOPIC 2A: The Phenomenon of Law

o What is law?
o A statement of fact, deduced from observation, to the effect that a
particular natural or scientific phenomenon always occurs if certain
conditions are present: the law of gravity; the second law of
thermodynamics.
o A generalization based on a fact or event perceived to be recurrent:
Parkinson’s Law, Murphy’s Law, the Peter Principle.
o A system of rules which a community recognizes as regulating the actions
of its members: positive law.
o Something regarded as having binding force or effect: customs, moral law,
natural law, equity.
o An individual rule as part of a system of law: Law on Sales.
o Two distinct meanings of law:
o Descriptive
 Describes phenomenon, pattern, trends, regularities, in nature and
human conduct; variance from the rule may put to question the
validity of the rule.
  i.e. Physical laws, Sociological laws, Economic laws
o Prescriptive
 Lays down rules for the conduct of human beings. Variance from
the rule does not invalidate the rule.
 i.e. Moral law, natural law, law of reason, customary law,
positive law
 Positive Law = Statutory Law
o Legislated Law; passed down by the institution
established by the Constitution. The Lawyer’s Law or
the law studied in the institution.
o Moral law, natural law, reason, customary law, justice,
social order, are not strictly positive or statutory law.
But the law itself recognizes the relation of these laws
to positive or statutory law. There are a number of
schools of thought on their exact relation to positive
law.
o The School of Jurisprudence
o The Natural Law School a.k.a. Teleological School
 Basic Tenets:
 The is a higher law which serves as a touchstone for the
validity and efficacy of positive law.
 Found in Greek philosophy and literature; Islamic, Jewish
and Christian theologies; generally Western, European
literary traditions.
 Concepts of Universal Law and Universal Rights (i.e. human
rights) are offshoots of this perspective.
o The Historical School
 Basic Tenets:
 Law is inseparable from culture to which it is but a part.
 Eschews “universal law” but insists on “national law” specific
to a country or cultural entity.
 Favors customary law, law of great antiquity, and the
evolutionary development of law.
 “Law is the expression of volkgeist” that is, the spirit of the
people.
o The Sociological School
 Basic Tenets:
 Law is an instrument in the ordering of society.
 The validity and value of law lies in its ability to harmonize
the conflicting interest of various sectors of the society.
 Leading lights: Karl Marx, Max Weber, Roscoe Pound,
Justice Oliver, Wendell Holmes.
 Aims at a scientific approach to legal development.
o Legal Positivism
 Basic Tenets:
  Law should not be subject to any extraneous effect; it should
be an autonomous phenomenon.
 The validity or efficacy of law has nothing to do with justice,
natural law, morality, or culture or its effect on society. Law
must be approached on its own terms.
 Dura lex sed lex, the law may be hard, stupid, unfair, unjust,
even immoral, but it is the law.
 The job of the lawyer is not to be a philosopher, moralist,
theologian, anthropologist or sociologist.
 To the Legal Positivist, the definition of the law is:
o LAW IS A COMMAND OF THE SOVEREIGN
o A Sampling
 Following provisions of the Civil Code of the
Phillipines
 Art. 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
rights recognized by the law.
 Art. 10. In case of doubt in the
interpretation or application of laws, it is
presumed that the law making body
intended right and justice to prevail.
 Art. 11. Customs which are contrary to
law, public policy or public order shall
not be countenanced.
ITL – TOPIC 2B: Bernas on the Elements of the State
o State: Definition and Elements
o State: Montevideo Convention of 1933:
 The State as a person of international law should possess the
following qualifications: a. a permanent population b. a defined
territory c. government d. a capacity to enter into relations with
other states
 Commentators following Montevideo Convention break down the
concept of state into Four (4) Elements:
 People
 Territory
 Sovereignty
 Government
 State vs Nation
 State: a legal concept;
 Nation: a racial concept
 The word state is interchangeable with nation.
 Esmein: “the juridical personification of the nation.”
o Four (4) Elements of a State: People
  People as an element of a state, is a community of persons
sufficient in number and capable of maintaining the continued
existence of the community and held together by a common bond
of law.
 The meaning of the word “people” depends on the context where it
is found.
 Sovereignty “resides in the people and all government authority
emanates from them.”
o Four (4) Elements of a State: Territory
 A definite territory, consisting of land and waters and the air space
above them and the submarine areas below them, is another
essential element of the modern state.
 An entity does not necessarily cease to be a state even if all
its territory has been occupied by a foreign power or if it has
otherwise lost control of its territory temporarily.
 Reagan v. Commissioner of Internal Revenue
 Petitioner disputed that an income tax assessed on him by
the responded on a sale of an automobile transacted Clark
Air Field Base at Pampanga, a United States Military Base,
contented to be outside of Philippine territory. The Court
rejected his claim saying:
 Bases under lease to the American armed forces are not
and cannot be foreign territory
 The principle of auto limitation; giving permission other
nations or states to exercise power/jurisdiction to the territory
of a nation is in itself an exercise of power [by the owner;
more like an owner giving permission to use a property]
o To be asked for permission is indicative to the power
of a sovereignty
 Schooner Exchange v. M’Faddon, 1812 decision.
 All exceptions, therefore, to the full and complete power of a
nation within its own territories, must be traced up to the
consent of the nation itself. They can flow from no other
legitimate source.
 Chief Justice Taney, 1857 decision.
 For undoubtedly every person who is found within the limits
of a government, whether for temporary purposes or as a
resident, is bound by its laws.
 Hyde in his three-volume work on International Law:
 The ground occupied by an embassy is not in fact the
territory of the foreign State to which the premises belong
through possession or ownership. The lawfulness or
unlawfulness of acts there committed is determined by the
territorial sovereign.
o Four (4) Elements of a State: Government
  “That institution or aggregate of institutions by which an
independent society makes and carries out those rules of action
which are necessary to enable men to live in a social state, or
which are imposed upon the people forming that society by those
who possess the power or authority of prescribing them.”
 On a national scale, the term Government of the Philippines refers
to the three great departments; legislative, executive, judiciary.
 Government – the institution through which the state exercises
power
 Administration – consists of the set of people currently running the
institution
 Administration can change without changing the government
or state
 Transition from 1935 to 1973 then to 1987 Constitution
involves changes of the government but not the state
 The transition from President Estrada to President Arroyo
did not involve a change in government but only of
administration
 President Wilson’s enumeration of the constituent function of
government was adopted in Bacani v. NACOCO.
 (1) The keeping of order and providing for the
protection of persons and property from violence and
robbery.
 (2) The fixing of the legal relations between man and
wife and between parents and children.
 (3) The regulation of the holding, transmission, and
interchange of property, and the determination of its
liabilities for debt or for crime.
 (4) The determination of contract rights between
individuals.
 (5) The definition and punishment of crime.
 (6) The administration of justice in civil cases.
 (7) The determination of the political duties, privileges,
and relations of citizens.
 (8) Dealings of the state with foreign powers: the
preservation of the state from external danger or
encroachment and the advancement of its
international interest.
 NACOCO was a corporation with personality distinct from
the government and therefore could not claim the privileges
which flow from sovereignty.
o Four Elements of a State: Sovereignty
 An entity is not a state unless it has competence, within its
own constitutional system, to conduct international relations
with other states, as well as the political, technical and
financial capabilities to do so.
  Section 1, Article II, says: “Sovereignty resides in the people
and all government authority emanates from them.”
 Sovereignty: source of ultimate legal authority
 Legal Sovereignty: supreme power to make laws
 Political Sovereignty: sum total of all the influences in
a state, legal and non-legal, which determine the
course of law
 Sovereign Authority: not directly exercised by the
people, normally delegated by the people to the
government and to the concrete persons in whose
hands the powers of government temporarily reside
o Sovereignty of the people also includes the
concept that government officials have only the
authority given them by law and defined by
law, and such authority continues only with the
consent of the people.
 This is the meaning of the rule of law: a
government of laws and not of men.
ITL: Tri-Partite System of Government
 Legislature:
o Passes laws
o What the law should be?
o Political Question
 Executive:
o Enforces laws
o What the law should be?
o Political Question
 Judiciary:
o Interprets/Applies laws
o What the law is
o Legal Question; justiciable – there has to be a real, actual issue
that is not a political question
 Political Question
o The political question is : What should the law be? This is answered
by determining what laws to pass; is answered by determining the
legislative intent.
o Answers the question on the wisdom of the law
o No limit or constraint as to what laws a legislator may pass as long
as it does not violate the constitution; because the president and
the legislators are elected by the sovereign people.
o Tanada v. Cuenca; G.R. L-10520, Feb 28, 1957:
 Political questions are "those questions which, under the
Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
 authority has been delegated to the Legislature or executive
branch of the Government."
 Legal Question
o The Legal Question is: What is the law? What was the intent of the
legislator in passing the law? It does not question how good, proper
or beneficial the law is. It deals rather with determining, in case of
controversy, the meaning of the law, what did the legislator intend.
 Cases:
 PACU v. Secretary of Education, G.R. No. L-5279, October 31, 1955;
https://lawyerly.ph/juris/view/c342a
 Tan v. Macapagal, G.R. No. L-34161 (Resolution), February 29, 1972;
https://lawyerly.ph/juris/view/c5921
 People v. Vera, G.R. No. 45685, December 22, 1937;
https://lawyerly.ph/juris/view/c1b1e
 Sotto v. Commission on Elections, L-329, April 16, 1946;
https://lawyerly.ph/juris/view/ce1bb
ITL: Western Legal Systems

Characteristics Common Law Civil Law

Major development / origin England Continental Europe

in . .

England, its former Continental Europe and

Influence persists in colonies, and British former colonies of
Commonwealth countries. Continental European
Ex. USA and India. countries. Latin American
Philippines countries, Philippines

Favors legal development Jurisprudence or judge- Statutes, especially codes.

by developed doctrines Relies on treatises by
experts

ITL: Hierarchy of Laws

 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.

o When the courts declared a law to be inconsistent with the

Constitution, the former shall be void and the latter shall govern.

o A more detailed hierarchy might look something like this:

 Constitution
  Is the most powerful law of the land is because only
can the Constitution change when the sovereign does
so

 One can be illegal but not unconstitutional

 Anything that violates the constitution will be rendered

unconstitutional

 All laws are given power by the constitution

 A municipal law is law where the application is limited

to a certain territory; thus, the Philippine Constitution
is considered a municipal law

 International Treaties Conventions

 Laws

 Executive Acts

 Local Ordinances

ITL: Categories of Laws

 Private Laws v. Public Laws

o Private laws: Governs the relations between the members of a

community

 i.e. Commercial/Mercantile Law

o Public laws: Deals with the relation between people and the
government

 i.e. Political Law, Criminal Law

 Codes v. Special Laws

o Codes: A code is a compilation of existing statutes or laws

scientifically arranged, promulgated by legislative authority.

o Special Laws: Are individual statutes that are not intended to be a

comprehensive repository of the rules on a given subject.
 Constitution v. “Ordinary” Statute

o Normally, the term “statute” is used generically to encompass all forms of

statutory law. But in its narrower sense it refers to “ordinary statutes, i.e.,
the laws passed by Congress as distinguished from a constitution which is
the basic law of the land. In our jurisdiction, the constitution is adopted by
a process different from the passage of ordinary statutes.

 Substantive v. Procedural or Remedial Law

o Substantive – establishes rights and imposes obligations, e.g. Civil

law. Criminal law.

o Procedural / Remedial – establishes the process by which the

rights may be enforced, e.g. the Rules of Court.

 Municipal v. International Law

o Municipal law – the law of a nation, “national law” (do not confuse
with municipal or city ordinance).

o International law – the law of nations, i.e. the law between nations.

 Public International Law v. Private International Law

o Public International law, or the Law of nations is truly international

in character. It is the “law among nations”.

o Private International law, or “conflict of laws”, is part of municipal

(national law) and is not international law.