HISTORICAL PERSPECTIVE OF

PHILIPPINE LAW

Summary
Report L12
Group 1

Prepared By:

Arimas, Noemi B.
Barredo, Quennie G.
Berja, Hennie MarieT.

Submitted to:
Atty. John Noah Red
Professor
A. HISTORICAL PERSPECTIVE AS A STARTING POINT

Reasons Why to Start the Study of the Nature of the Law with the Historical Approach:

1. The basis itself of the perspective of the historical school of jurisprudence

 Volksgeist – the concept of the soul and spirit of the people (diwayan) provides the sense of
beginning and unfolding of the law according to Freidrich Karl von Savigny;

2. The renaissance of the natural law theory – cornerstone of the house of teleological
jurisprudence.
 The concept of Folksoul – the ideas of “soul” and “spirit” are now rarely used in the works of
modern philosophers. It used to mean a high degree of intelligence or “minded action”.

3. It is useful in the evaluation of the legal development of a nation, especially its legal history.

B. HISTORICAL ELEMENT IN THE LAW

The presence of the historical element in the law is thus manifested by at least two important
marks:
1) The changes in the social existence of the people, and
2) The progressive conditions of their politico-legal development.
 These historical facts are unavoidable and are still in progress, although they may not have
been uninterrupted. For historical jurisprudence, the law could not have thrived except in this
socio-political environment.
C. HISTORICAL VIEW LIMITED IN SCOPE
Reasons:
1. That what is peculiar to a group of people is not necessarily true for another group of people.
2. Each group of people has its own folksoul persisting from generation to generation.
3. The law is not universal in scope, only national. It is conservatively oriented to the time,
place, and individuality of a particular group of people.

D. NATURE OF THE LAW

According to Sir Henry Summer Maine, the acknowledged leader of historical

jurisprudence in England:

“The law is the product of the huge mass of opinions, beliefs, superstitions, and
prejudices of a people produced by institutions of human nature reacting upon one
another.”

However, it was considered as not quite adequate to explain the different treasuries of
the folksoul and, hence, incomplete to contain the jural and nonjural materials of a group of
people. It fails to take into account the other vital aspects of the national character and genius
of people.
D.1) THE OBLUTIACS OF A PEOPLE

Opinions, Beliefs, Longings, Usages, Traditions, Idiosyncracies, Arts, Customs and Superstitions.

Human beings are well equipped with language as a means of communicating their
perceptions to others and that they articulate themselves by means of their OBLUTIACS. It reveals
the national identity, character, and genius of the people. Together they form the common
consciousness and intelligence of the people. This hypothesis tried to explain about the emergence of
the volksgeist or diwayan.

D.2) THE FOLKSOUL

 It is composed of several elements.

 Each element is a treasury of the national identity, character, and genius of the people and
distinct from one another.
 Together they form the common consciousness and intelligence of the people.
 Together they reveal the people's cultural identity.

KINDS OF FOLKSOUL

(1) Folklore

In this treasury are deposited the beliefs and traditions of a group of people. It
constitutes the folk learning or folk wisdom (paniniwala) handed down from generation to
generation. The folklore may survive in the form of epic tales regarding the bravery and
sacrifices of the people and their heroes.

But a great deal of people’s beliefs and traditions appear in the form of telling
parables (talinghaga) and riddles (bugtong) which were based from the experiences and
experiments of the people. The beliefs and traditions have been called lore – the learning of
the people.

(2) Folksaying

It composed of the opinions of the people. They are expressions or announcements of

orders and policies which the members of the community are expected to follow.

They appear in the form of proverbial maxims (salawikain) and sentiments (sabi)
containing the social feelings of the people. It is either social or jural in nature.

Maxim - is a short or terse statement containing a general truth or a timeless rule of

conduct.
Sentiment – is a settled sense, view or disposition colored by feeling.

Non-Jural (Social) Examples:

- "Pag-aasawa'y di biro/ Kanin bagang isusubo't iluluwa kung mapaso."

- "Mabuti na ang mamaLay na malinis ang budhi/ Kaysa mabuhay na parang
pusali."
- "Kung mainit ang kalan/ Huwag hipuin ng di na masaktan."
 Jural Examples:
- "Ang mag-asawa sa ariarian ay iisa."
- "Huwag kang pumasok sa bakuran nino man nang huwag kang masakupan."
- "Daig ng maagap ang masipag."

(3) Folkways

Composed of customs and usages of the people which make them reliable expression
of the folksoul. Customs and usages are widespread ways and practices evolving from the
reactions of the people to the same demands, challenges, and situations.

Use to aid the life of the people in the environment; It provided the first sources of
law. It resolved the peace and order issues; It passed the tests of time and crisis and became
the definitive norms of activity and conduct. There are many jural folkways that have been
incorporated in the positive law of the Philippines.

Examples: pagmamagulang, lupon sanggunian, maybahay, bigay-kaya, bigaypayo

(4) Folksong

 Reflects the musical expressions innate to a people.

 This form of expression of a people's interests and feelings contains their rejoicings
(diyuna), lamentations (panaghoy), longings (mithi), and aspirations (adhika).
 They set to indigenous and distinctive tunes (himig).
 They are passed to succeeding generations, hence, may undergo changes.

(5) Folkdance

 It included the dances indigenous or unique to the people and are performed to folk music
either singly or group.

 It is a rhythmic and patterned succession of bodily movements with their own distinctive
meaning and significance.

 It depicts the diverse influences on and adaptations to the life of a people, such as, their
idiosyncracies and superstitions.

 It is full of vital folk quality and connected with rituals, festivals, ceremonies, or simple
frolics.

Two (2) characteristics:

- Significance or translation attached to them;
- They are not for happy occasions alone but even for grim and difficult times.
 (6) Folkart

It includes skills peculiar to people applied to the creation or fabrication of objects of

art or objects of utility. It flourishes only when there are plenty of materials upon which it can
be applied.

 Objects of skill or ingenuity - by adapting natural things to human use

 Objects of beauty and color

E. LIFE OF THE LAW

During the course of time many opinions, beliefs, usages, traditions, and customs
were either discarded or improved. Those that survived the interactions of human
relationships and institutions and have permeated the people in common eventually
solidified into the volkrecht or kautusan.

The organic connection of the law with the life and spirit of the people emphasizes
the phenomenon that for law there is no moment of absolute cessation; The law is subject to
the same changes that happen to the other aspects of the life of the people.

While the law grows with the development of the people, the law can die too
with the demise of the nation through the loss of the nation’s individuality.

F. BASIC POINTS OF HISTORICAL JURISPRUDENCE

In the framework of the historical view as to the nature of the law, two important
points stand out. First, the state is regarded as the highest expression or personification of
the law. Second, the law is found and not deliberately made.

F.1) State and Folksoul

STAGES OF DEVELOPMENT OF SOCIAL AND POLITICAL PROGRESS OF PEOPLE:

 First relationship among people was a vertical or personal one and it existed in the family
and clan.

 Broadened into a horizontal or communal type of relationship wherein several groups formed
alliances for certain purpose.

 Then it combined and merged into a large-scale territorial relationship wherein people
reached their ultimate national development attaining a more complete structure for the
satisfaction of the common life, otherwise, known as the State.

The State is considered as the highest expression of the folksoul. Indeed, it is the
highest national structure erected by the socio-political development of the people. Putting the
point in another way, the body politic is considered by historical jurisprudence as the final
juristic personification of people.

F.2) Law Not Deliberately Made

 The law is not deliberately made by the effort of human will but is discovered in the
common consciousness of the people. Thus, historical jurisprudence posits the idea that since
the law; cannot be realized in the individual but only in the species; then the law is the
product of the national genius or common consciousness, developed by the steady growth
and development of the people themselves. But while the law lives in the common
consciousness of the people, its meaning and impact on the community are handled by a
specialized group of individuals versed and skilled in the law. These are the men of law-
jurisprudents and jurists.

G. SIMILARITY OR DIFFERENT LEGAL ORDERS

Historical jurisprudence is confronted with the task of reconciling its concept of the
nature of law with the phenomenon that in some groups of people there is a similarity in their
legal orders. The reasons as follows:

G.1) Historical Reason

In the process of development of a group of people, many outside factors or

foreign trait-complexes, may have been assimilated by the people. The political,
commercial, religious and other types of contacts with other group of people are some
of the reasons that resulted to the similarity or uniformity in the legal orders of
different peoples. It explains the inconsistencies of foreign legal system in reference
to the oblutiacs of the people coming under the dominion of another group of people
which need a considerable degree of imposition. The outside and unacceptable
provisions of the foreign law were abolished.

Example:
When the Civil Code of the Philippines was instituted in 1949, certain
provisions of the Civil Code of Spain touching on dote, censos, usos, and habitacion,
which were inconsistent with the oblutiacs of the Filipinos, were abolished.

G.2) Jurisprudential Reason

The precepts of justice and fairness, which is permanent and present in all men
everywhere since they are impressed in the human heart and mind and considered to
be basic or identical for all peoples, explains the resemblance or similarity in some
aspects of the legal orders of different peoples. The concept of a regular and
progressive development of the law should also explain the similarity or uniformity
of different legal systems.
Different peoples may have particular legal rules, more or less similar, for the
resolution of the unjust and unequal situation referred to.

Example:
 The Philippine legal order provides, as a general rule that actions prescribe by
the mere lapse of time fixed by law. Thus, in the secondary application of first
principles the similarity in, or uniformity of, some aspects of the legal orders of
different peoples is still explainable.

H. VALUE OF HISTORICAL PERSPECTIVE

To policy makers and government functionaries, legal research is to be oriented to the

soul and spirit of the people. The historical view of the nature of the law highlights the point
that rules and regulations governing human conduct can better survive the tensions of social
and political existence when they are in accordance with the kindred consciousness and
convictions of the people to whom such rules and regulations are, after all, addressed. That
with or without modifications the historical doctrine of the nature of the law as the life and
spirit of the people is valuable and practicable in the legal ordering of society.

Several confirmatory provisions in the Civil Code of the Philippines:

o Article 10 of the Civil Code of the Philippines provides for the presumption that the
lawmaking body intended right and justice to prevail whenever it enacts a statute. This is
a jural expression of the profound sense of, and love for, righteousness and justice of the
people.
 Ilubog at dagnan man ang katwiran/ Ay pilit itong lulutang. (Right though sunk and
weighted/ will nevertheless rise to the surface.)

o Articles 19 through 36 of the Civil Code express the Filipino folkway concerning human
relations. They are basic principles that are to be observed for the rightful relationship
between human beings and for the stability of the social order.
o
 Mahalaga ang puring patay/Sa masamang puring buhay. (It is better to be dead with
honor/ than to be alive in dishonor)
 Masira man sa pamimilak/Huwag lamang sa pangungusap. (It is better that riches are
lost/ than to break one’s word)

o Articles 198 through 211 of the Civil Code of the Philippines: It is nearer to the ideal of
family unity and is more in harmony with the traditional oneness of the Filipino family.