eS sg PhiLawsophia: Philosophy and Theory of Philippine Law (Revised Edition) NICOLO F. BERNARDO AB, MA. JD. REB. vty Lt Cone itt ng, ag Sel ng i Former Associ, Sip Salas Hemandes & Gatmaitin Juris Doct, Second Hover, Ateneo de Manila University Law School ter of Artin Pilesophy, Suna Cum Laude, University of Sato Tomas Tebtori- Che, The Varsaran, 2006-2007 Men, negra Bar ofthe Philipines, Pilipine Constiuton Associaton, Intersiontl Bar Aseistion ad OSCAR B. BERNARDO BSB. LL REX Book StorePhilippine Copyright 2017 by NICOLO!F, BERNARDO OSCAR B. BERNARDO ISBN 978-971-23-8697-8 ‘No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, repr her printed, mimeographed, typewritten, copied wanctferent electronic devices or in any other form for Hatnbution or sale, without the written permission of {Rosuthorized representative of the publisher except Peictpaccages i books, articles, reviews, legal papers, tra rather oficial proceedings with Proper citation. “Any copy ofthis book without the corresponding number and the authorized signature of either of Tho authors on this page either proceeds from an {legitimate source or is in possession of one who has no authority to dispose of the same. ALLRIGHTS RESERVED BY THE AUTHORS No.__2616 Reprinted: July 2022 Prints by ec inc. m7 PREFACE ‘To question the wisdom ofthe law — the wh sv — the wh, the hows, the what fors, andshe wha fs Tes ae he thee oad cous Leg Thy Se Legal Philosophy, which this book presents in nutshel : Stating with quer on wher signed whe tors dics pec lps oo hal nes pod ved lawn lin peer Trl, esse, enone, ete do An erposton of gl diese ting er oh so ir ch ‘ta le, pein, constant lp! henry 2d practice theory. 5 ‘The major fields of law are introduced in subsequent chapters in relation to their original and dominant philosophical paradigms: Intemational Law ftom the classical proponents ofthe natural law of men; Civil Law, Fam law, and Criminal Law, a8 adopted from codified Canon, Hispanic, and Ro~ rman laws; Political Law as inspired by American and French constiitions and philosophies; Mercantile Law as copied from English-American commercial [stems and eases; Remedial Law based on empirical and inductive methods; find Labor Law arising from Socialist and Communist prosestsm. ‘Chapters are concluded with elated jurisprudence, dissents, and separate “opinions that cite philosophers and professors of jurispmudenee, from ancient ‘opostmodera. Among te highlights are names every philosopher, politician, fad lawyer shouldbe familiar with — Plato, Aristotle, Aquinas the Stoiss the Roman jurists, Grotis, Blackstone, Weber, Smith, Mansfield, Bacon, Hume, Machiavelli, Hobbes, More, Locke, Rousseau, Mil, Thoreau, Wojtyla, Mars Wollstonecraft, Hart, Finnis, Holmes, Dworkin, Foucault, and Rizal, who among Filipino revolutionaries had a well-developed body of philosophis works, This book ends with an eye on the laws ofthe present andthe future thawed on postmodem trends and favored wit indigenous law Phitawsophia is a suggested reading for Philosophy, Legat Manage ment, Political Science, and Law students; guide to lawyers and legislators in thei pursuit of order and right and a refersace for members ofthe Bench in writing ease opinions with a philosophical background of legal principles, To anyone interested in understanding th la, this work seeks to cack those conceptual mysteries and historiography behind the Iyalss, The reader is ‘aie ta joumey through the mental maze that makes up the halls and shall hots that govern every aspect of ou Being; and to put the la wise to the stand “The AuthorsManila from te Chen of Bieeene L Ps ASSOCIATE JUSTICE FOREWORD Since Legal Picsophy i no Pilipine Har sje ts ofen take fe a eas a sujet nthe lw cucu, Unorunately,npleing this subst may Ted {cure thinking in legal sgumenttion without n-deph understanding ofthe law ‘Our frre tawers (and justices) deserve bh the ills and training to reve ec, eguipyed wi wedge eo te evolution oF thot regarding rst {soc expecialyhrogh classe elo who moved the law by thir en. Lesa bsp eoul nly prove wel in wting juspalence with thorough isto isis Hence even the Philippe Jal Academy devotes « Depart yan a tn Jarspadeoce and Lega Phlsophy. [Asa proscribed teat fr ste fl and philosophy this book demysiiok then aba eae, tert aoe Philesophy of Law or Theory of iw by providing reference to actual Philipine avs, sss and eases citing relevant liosopers or jurists and i hore. makes lea philosophy an ish and Engaging ender {mend th autos of this book frit simple and ight presentation of pis inrcinion to major branche nd specializations ofthe lw. Now on ts eis etn, the book fas addtional excrs from relevant jurisprience and extended dscissions tom the development of thought conering commercial lw, sllogism, and invent American jurists ‘Atlas legal philosophy is ot dead. This ook wil stand as a wef ference the witdon ofthe lw boy Cp emrrenre= {CE BIENVENIDO L. REYES fer those who dae to question ~ and answer ASSOCIATE JU)That night God appeared to Solomon and said o him, “Ask for whatever ou want me fo give yo Solomon answered God. “.. Give me wisdom and knowledge, that 1 ‘may lead this people for who sable 1 govern thi gsat people of yours? Then God said to Solomon, “Since ths is your heart's desire and you shave not asked for wealth, possessions or honor nr fr the death of your fencmies, and since you have not asked fora Tong life ut for wisdom and Iinowtedge 10 govern my people over wom 1 have made you king, therefore ritdom and knowledge will be given you. And I wil alse give you wealth, possessions and honor, such as no King who was before you ever had and tne afer you wll hae.” 2Chroniles 1:7-12m, CONTENTS: ‘The Case for Law Legal Wisdom and Counsel Law's Likes and Unlikes Should Lawyers Cast the Philosopher’ Stone? Chapter 1 Case Readings Legal and Philosophical Issues ‘The Four Elements Reason and the Common Good Promulgation and Authority Modeen Standards fora Rule of Law Branches of Law Main Issues in Lae Law and Trath Lega Tah, Taw, Authority and Fore Enforcing Law Law and Mores Religious Sectaran visdovs Secula/Public Morality. Law, Justice, and Equality Egalitarianism ‘The Blindfold of asce Law on Property and Economics. Private Property Public Property Coxporate Propet. The Morality of the Free Market. Fair Market Economy Law, Freedom, and Duty Freedom with Duty Law, Guilt, and Personal Liability Chapter H Case Readings Theory of Law Legal Theories ‘Going Natural ~The Teleological or Natural Law TheoryFinis co Going Back o Basis re Lan Sgn So The Foss The. Legals ‘he Ha ofthe Law The Spit Const They et eat The Relist Thea Tov te Ss Qn = Th itl Te sete of sprees The Hora Scho! 1 nom or Scop Sha The Econo Approach Fema nl Ogi eo Price The. oo Chap Case Reading ie Necra Lon rnanaa Cowan tos CO Philosophers. ‘The Nature of Mankind Phases of Natural Law Theory. Wiestling for Ideal Law. “he Republic and Philosopher Kings. Laws and Preambles Aristotle on Rational Law ‘Democracy a5 Best Form of Government. Sylopism and Legal Reasoning The Stois on Jur Natrale Aginas on Natural Inclinations rom Etemal Law to Natural Law From Natural Law to Human Law Enlightenment Philosophers on Natural Rights. Natural Law asthe Law of Nations Hugo Grotus, Blackstone's Commentaries. Jacques Maritain Chaper 1V Case Readings ¥. Cll Law: The Roman Jurists Roman Law: All Codes Lead to Rome Breaking the Code, (nthe Nature of Law. The Law on Persons, Children and Mariage the Law ~ The Interpretvist or 11 18 1s ut ul 1 7 vw Vn. va, Guardianship... The Law on Property ‘The Kinds of Ownership ‘The Ownership of Animals. Right of Accession Usufructary. Servius. ocspaion a Ponesin Will and Succession : Obligations and Contac. Special Contracts Salesian — Loan, Muna, Deposit and Pledge. Partnership and AgENY en Quasi-contracs, Deliets and Quasi-Delicts. Actions and Inert, Latin Maxim Chapter V Case Readings. Criminal Law and Family Law: The Christian Philosophers... ‘Aquinas on Cvame au Panisnen Restitution and Retribution. . Conditions of Criminal Liability Wojtyla's Theology ofthe Body. “The Sexual Partner as a Person Pleasure and Love, The Meaning of Total Sel.Giving Dovetailing Church and State Separation of Church and Site Chapter VI Case Readings. rom Custom to Law Lex Mereato ‘Adam Smith, Father of Evonomics and Capitalism Mansfield, the “Lord” of Commercial Law Philippine Commercial Laws, Copy and Paste ‘Chapter V1 Case Readings Remedial Law: The Empirical Philosophers Bacon's Inductive Jurisprudence [Exhuming the Evidence: Hume's Presumptions and Probat ir rs 13 13 144 146 6 7 7 161 165 168 1s 170 170 m1 m i 174 Ds. 92 196 198 200 209Probebilt ‘Wagensein 00 ts Chapter Vl Case Readings VIX. Pal The Ne Machiavelli ial Law: Reform Revoltion, tt eo casa Philosophers . ‘The Breach ad the Practice of Politics pti ya tn Game of Dot and Resistance Hobbes on Sovereign Immunity ustfying Auto ‘tomas More oo Repoblicanism an ithe Family ts he Basic Unit of Society ‘The Familial State. “The Rule of Law Unlocking Ialienabe Rights “The People’s Trust Rousing Man tbe Free The General Wil ‘The *Mil” of Happiness and Liber Freedom of Action and Thought. Uslitarianism. Being Use nn Civil Disobedience asa Duty ‘When Revolution is Right (and Ripe). Chapter VIX Case Readings ‘The Red Revolution. (Chapter X Cave Readings Feminism and Gender Law First Wave Feminism ‘Second-Wave Feminism Third- Wave Feminism Labor Law; Socialism and Communism Right of Mother and Child Foucault onthe “Other” Ciilization Makes Mad Haters. The Prison Makes the Criminal Engendering the Homosexual Class ving Green: Philosophy of Ecology Common but Differentiated Responsibilities Pollutr Pays Principle Intergenrational Equity Everyone “Int: Post-Modernism and the Future of Law. Pm 2 24 m 24 2 20 m a 235 241 xi. Precautionary Principle ‘Transboundary Ham ‘Sustainable Development Technology Transfer Rights of Indigenous People ‘Star Wars and Space Lav Legal Tendentie§ noone (Chapter XI Case Readings 7 ‘The “X" Factors of Philippine Legal Paradigm, Rizal on Understanding the Cancer of Philippine Society. uty, Interorty, and Community ana ‘The Filipino Family Chapter XI Case Readings es a 2 2 2 278 278 29 2a 2 2s 207 299 300“@ CHAPTER] << THE CASE FOR LAW La sing bt he bs reson of ise men pled or ages he transactions and business of mankind. Z —Alrahum Lncola, 6 US. reser, layer I. LEGAL WISDOM AND ‘COUNSEL. Lawyersand philosophers canbe counted among the most misunderstood species. Shakespeare's King Lear wishes al lawyers dead, while the film The Devil Advocate sees them dammed. “I's a pyramid with Satan on top,” says At Pacing ote legal system lonathan Suits The Grier 's Travels accuse lawyers of beirg “the most despicable in common conversation” who “pervert ‘he general reaton of mankind" “Lawyerlan”"s0 th pn goes. Many lavyers are miscreants who supposedly murder the trath, who twistthe aw, who defend the scum of society, and wh are good in torturing the English language. See how society judges lawyers as morally compromised, tempted, or hunted beings: from the classic To Kill a Mockingbird, 0 John Grisham flicks, tothe series The Practice and Suits, The Exorcism of Emily ose Meanwhile, the philosopher is the rambling troublemaker, the sage who, unlike the lawyer, cannot make a penny Jose Rzal’s Pilsopo Tasyo isa classic mold, The philosopher's reason — of loss of reason — is his rule. He ‘markind by his thoughts and laws were often the end-ruit of his iftever he finds hearing. In many ways, lawyers and philosophers can be good fellows that fone can, or sheuld be, both It is n0 accident that many Philosophy majors ‘eventually take up law and many lawyers erat their own philosophies. While the pifosopo gets around things by argument, the lawyer gets his clint of the hook by wordsnith Both offer solace: the philosopher his wisdom, the lawyer- cae eam ha coco ea Sree ene chan HE r-pilsophy” (om the Greek pilos and sophia) means the “yer we ae te “ ee catechol eee eel reeer ea ape ea etnee oe Orca ene eee sh ee ee oe Pert iper ee eres meen cnr Se eee ‘To answer those and more, one as fo appeal to one's better wits and ‘atonal jurisprudence, and this precisely isthe role of legal philosophy, IL LAW'S LIKES AND UNLIKES ewho dethrone the idea of la, bids chaos welcome int stead. Horace Mann, hours Philosophers themseves have not always been pesitive about lav Pilesoper, fom Plo to Marx, thought law insttutionalizes the il of society, sustains he status quo, and complicates our rather simple lie. Rus ‘zt cnemy of rainy. and fie-thnking. Maybe we ean get by wits In the Gospels, Jesus Christ despised the legalistic and hypoctival Levies and Pers and summed up ther thousand nw it 0. Imodemiss sy thatthe aw is just elagrandized construct that perpets isci'y clan afer cation of maxims. I it lives by citation, it would de [Bizeniation loc the lw, period. Even if we need to live by some cr wor are held o be unecessary. John Lennon, composer of the sik 11 Phtewsephi: Pip ad Theory of Philippine Law retin Si mht thom dispensable in th ideal world, nce pee nono ela ee a ae Se Sarctgee ene {oul be let alone without law. But ifman is natraly veees athe Chines agitate be would nes he empeliheluBathe a n intrinsically good, e could only make good lays. Good men make yond nge Bui are bad, Cel ake Ba eee Ferhaps man can iter be oe ote ter nd si vaca be god cx “bad “heer” "usc or Feith Nahe fe “tejond god andi” The Scolistvew daws ates mune lly spore ‘he is an imperfect creature. Thus, man-made law be ood tuk aed The ict tnt es betee ts dens oC Goal plato tn can ca wt neoate egal es, Got snd el ate ioe cr of cae oe “pence or ack a.gond ing sh eh iso ed ne, es afer — amplimoalp cn sre e707 wie ES soso ive Gly with les. Br ao man goes on dealing with oer sulfur Uke Neel beso congas Woes ICTY Conmen 1 afont eonpas nak ecard etn frm ee ‘norms, OF Guidelines, no matter how elemental; and the need for someone who aa a cg ie oe aman el lay bec umas ware esha set way tego ch nesting Lies smc orev tnlundang Asta nyo tone ou coe sly cop Siaodankenain cmap ak aeeeeameckoenats Beaten ote mera pic sea hn wh pues Tite or asanes one uly ble ou nine ovat Teateouha pom ove let at pri has ob sla rperinyauatrpsrseaninsys tach ay From tt ot pnt wh mos sdedo ma communi ture cme tne eo an ep nth lw, gp of ther fascist poste Ie Hivig te lnc socio-legal system seem tobe the price oC ilization. These are the costs of eo ensure the saisacton of common needs. Principles and ‘organizing cadiions have tobe laid downto harmonize family relationships, con00ic -wthin_and fod To atering tien igh ies, a abide cmmis As sce Hols te lo develops he need or te canefr aw 13seiree on ii RO. SJ cy a ‘naturally autonomous, still, man — ape Pascale ol ol ng ea Ie te tape ee ise * Democrats (also known a8 Liberals) who, witha, teres. Thus goes uations. The law ei aortas, xe, and eglations The aw salle Rousseau who tue cone, avs cn sso bind ws and make the wheels f justice Suewsos de las Islas Filipinas on “cases that lastan_stemity handed dowy i asune and gnsns Even ine 1 MLO aso speak ge eee the coure in der to getjusce served. society advanes, must law also become more complex oe i a at reece Soi parle is “Statism: more State intervention ay Denar Si gle sockets economy. The Sak li Sy ony must trogh iw spread is old fom wen aera tne expec cu pois to cae, then expect ordinances that would caseout amon everything. Meanwhile, a Republican Conservative anda ftevanan would eu forderepuation and less and less laws. I sno to Bi Brother People and ents must be empowered and let alone to flourish through sel. dtermination,inividual bert, and hard work, ‘We should ake heed fom Sir Herbert Read: A society without law od rr is the very negation of society. Perhaps, the balancing ati fe, ‘Rnonable and caring laws a sesinct summation of commandment aay fromtccnc eats, Inte Utopia, Sir Thomas More also wrote about {soit with ew laws ait would be unjust bind men to have too many laws toread tht reo obsure tobe understood. Laws shouldbe understandable to sakcoldrs and not only to lawyers. ary Dasid Thoreau silly started his cass On the Duty 1 Chil Disobedience withthe adage “goverment is best which govems the least” ‘The Republicans point this ot, “big governments make small citizens." Too ‘many reultins cura initiative, innovation, and flexibility. More power ‘rom goverment regulators breed epportunty for bueauerati corruption and delay in services. A goverment is erated to prevent harm and ensure te exes of rights, ot frit to cause interference Peaps, to, we only need a few good lawyers. If Plato wished, as statesman, only the "philosopher-kings" —the select few who could profound ‘on reasonable laws andthe reasonability of things — then we could well wish for “philosopher lawyers.” 41 Patani Phir hia Php and They of Php Law MIL SHOULD LAWYERS Cast TH PHILOSOPHER'S STONE? "Ts the stone tha wl tal your lea i gol toe an your lead no god And when you have go the ‘isopher 04 ln longer compa of the bad tn Benjamin Franklin, Poor chan Amare Although nether a lawyer nor a juris, Jose Rial in Cha Jurist, Jose Rizal in Chapter 83 of his ‘Noll Me Tangere notes how lawyers should in time develop their own legal philosophy fo persuasively sir change. "New lawyers form themscives into ‘ew molds of the philosophy of Law. Some begin to shine ami the mists that surround our cours and presage a change inthe march of time,” speaks Rizal through the character Plosopo Tasyo, Indeed, the prastce of law ean and should itselfb_ a pursuit of pilos. “tarpradenc" fen astlsted wih sea.” at Ey the ey and std of From the Latin ars and prada ote “rade of n= r"pactcal knowledge ofthe a.” jurispodence ls supposd explain he ratial nature, thoy, development and objective of aw. John Astin in The Uses and Studies of aropraden calle jrisadecens“he know lee flaw 8 scence, combined with tea or pactial abit or il of applying “ie study ofthe principles, noon and dntions common to vans eg systems and forming analogies or Hees by which sch systems are siiea”™ “The sty of jurisprudence makes us know te wisdom behind he law's romlgation. A la eas more ereduliy, as one understands not only the Wha ofthe a, ut the how and yo nat the only way to undertand tela isto plough hough case aw hat Jeveliped downs itrrcing ot spplyingthe law, The fist American lawyer president, John Adams, appressed “aw as polis, aw as philosopty, an law as jurisprudence” wrote US Associate size Sandra Day O'Connor in erica’ Lanner President: From Lae fice Oval Office. In Dean Rall Agin's columa “Too Many Layer, ‘ot Enough urs! Rapler Setember 1, 2016) e explained the origin of -nw andthe ia syste fo the juris pilosoprs fod Sustinan's famed Cor ais Css id no necessity ours inthe 6h century AD when e fist promulgate afer he a onred the complain fal extant las and egal tors. Hwa thr te Middle Ages when th univers of Pod, Bologna Paris and ahers that dete te inlet countyside wok i up as a silsion of Gutessentl Roman thinking onthe lw I was rss who made he Ciapes fourth and the result of tee disputations wee Weates, opuscule,pandeas and tom.ence ~ of je found stony te wok of sade i 0 ing Soy wt ow pritoes Slowly, lawyer es a eo ore pl ese sour of yah en ei natok te hohe frsousan es Anetta mater hal someting ye 2s en nd 0 on rather inate asi ft the Sate the Iteration Cree oe ne ca ie wings of PUB ra tere ira ga pues mY har distinguishes an explanation of case and an expesition of pill ate liter farther expats the underlying cones, tat rar alan fa eal disput. The jurist philosopher-lawyer treats a ie one, not ta to make money. For a student of law, legal philosophy [Brea fm foundsion to understand the principles of law. Fong abou he x0 Sea bu the moral of he tory and resolution behind an sue he Jab devin shuld be recalled despite difring facts and cs “Eh how theterelae to principles of truth, justice, public morality, and te common good US Supreme Court Justice Oliver Wendell Holmes and Philippae suprene Cou Justice Reyna S. Puno were among the legal lminais cho popularized writings and decisions aniculaing philosophy and lea theory In his “The Path of Law" (70 Harvard Law Review), Justice Holmes vised the study of eet philosophers and urspradents to understand how Compelling ideas Become a cotoling force inthe development of laws. He lamer how somemembers ofthe bench and the bar mechanically pedal the lnw and undervalue jurisprudence, when effective legal order depends much an insight ga pilosopby. Mean, Jstice Puno poured scholarship on the legitimacy of avs by tracing legal anal discourses of Wester civilization. Puno's writings appeared ina collin by former Supreme Court spokesman Jose Mids Marquez tied The Constitutional Philosophy of Philippine Jurisprudence: The Writing of Senior Associate Justice Reynato S. Puno. Ding te certeary fhe Philppne Judiciary in 2001, the Supe Coa al lionel Saree Conn ection a Philos cliy Sra Cr asec ste Ataris, le ene Cor dns cating on galore, especially o pate and human rights. agin gems How jurisprudence —as egal pilosophy — will be appreciated weighs legal philosophy — will be apprecia easily 08 how ts eng agin schools. General, law schools ie ™ requiring Legal Philosophy or Legal Theory asa course subject ora 61 Phtemepie: Phy on hoy of pine Law ec ln yas nee men ei ea ee Peer eee i ut eters her Prerieenpep papery rien’ prta rey, th Pippa dial Academy as devo Department on Jrinprudcner amd Legal Pinoy cae y the juris Fr Ras Mn Dean of the San eda Graduate School of Law. Other adhe Fico pitesopy athe Pipi olde Josie Cro Paseal an Pest Fema ofthe Unies otc Pips: ie ge Coa Of te Univeaty of Sao Tomas, Dean Anono La Vita of th ASCO Sena of Goverment: an Sen. Mian DefensorSantiago who wt 08 erat tw and he bs of pose ‘Wil its necessary 1 pas he degree of Law 10 be aes it pot a tht one nods ok dee Piso 0B posse A a etelon or agumenaton, seul with dep aa reton coer esc a gem af piso inn, The ater satis the sae Sh ai bu aly, hy the lw st 0siets they ut 1 8 Meaning Hey raf Taw Such isthe pilsopher’s stone that can tum geht ® ight living, onder, and governance, ful past re gol, bunt prized rules o ee A SUILOSOPHERSJURIST ON THE STRUGGLE FoR tay P10 DURAN ». SALVADOR ABAD SANTOS, {G: No, 1-98, November 16, 1948) PERFECTO, 2, dissenting: [Aihis moment we canotrefain ffom repeating the words the catstingpilowpherjust Ihering wrote inhi ile big book, "The Stragule Law cravethe nha fou words the poet has described the reli of law nthe subjoctve,t aw in the objective seme ‘ote em meaning ofthe strug for lav, ia manner bet has tay philosopher of he law could had date i. These four words change Stocks claim ito a question ofthe la of Venice, To ‘nh mighty ita dimensions, doesnot the weak man grow, when Tapas hse wens Ii wo longe the Jew dung bls pow cfs ts the nw of Venice sel knocking a the door of laste for ists andthe lw of Venice are one andthe same; they tot snd or fll together. And when be Sally soccumbs under the weight ofthe judge's decision, who wipes ou his rights by a Shoding piece of pleasant, when we se him pursed by biter Scan, bowed, broken, tering on his way, who can help feeling ttt him te law of Venice humbled that ti not the dew. Sick, who moves painfully away, bt the typical figure of the ‘eof the mide ges, hat parah of society who ered in vain or juke? Hifi eminently apc not beause highs ae him, bat ecu a ew of the mid ages, has uit nthe law — we nigh ny just as if we were a Chrisian a fit in the lawfirm as rock wich nothing can shake, and which the judge himself feels ‘athe eastropbe breaks up hin like a thunderlap, dispels the sion andteaces him tat he is only the despise medieval Seto wham jus is done by defrauding him" Te picture of Shylock conjures yp nother before may ting th 0 es historical than pote one of Michel Kohthas hich Hic Yon Diet has described in his novel ofthat name idl the fascinsion of tuth. Shylock retires om the scene atl broken down by gre: his strength is gone and he bows of Phe Lve Setanta nhs mires Shomer geen eos Pere eben lente Sioa mntior tetera teeters ferme treme peepee Tosa soee ecm eee ne ee ie ie mies ooze eee ee earner re Cie fortow 19seanineetcaaatearetiasitad aa br ful was equaled only by the - coma i reso ny yn Site goto rn athe rede ecient seo ow ke aay ras al eee ae Bae ree th a rouge ae eee ata eae ee octal oietacenay ares at face bean the pysiciansanges his ward In ancient Rome, the corrupt judge eee iresiaetenaeaiche aera Serr eityiiecnscibcey oe ep aamnmiid (Scat eecaony tanaka Sencteuepet upetaeenener ae aceincmmenn gr aera cena | earn melo p ieysace creraqgrarir iene tame ec eaiencmernieines ersceerennainen ee j canetrcipe segment nrs a caeaeatogeassncheiatetere “in conjring wp this shadows, Lave desired to show by a sziking example how fr the very man whose sentiment of legal ‘ght srongst and most ideal may go astray when the imperfection of ezal inion tefuses him satisfaction, Here the struggle ais the lm. The feling of lea ight, ein the Tuch by the wer which sbould protect it itself abandons the ground ofthe lay and endeavors, by helping ise, to obtain what ignorance, bad will or impotence reise And itis not only afew very tong 1d olen characters, in which the national feeling of legal right rise is protest agains sch a condition of things, but this pots is sumtimes repeated bythe whole population under ceri forms, hich scoring to thei object of fo the manner in which the hole pope oa definite class look upon them, or apply them, uy be considered as popular subsites fr, and accessories 1a, te insta of the ste. 10h Paosapi Ps Pha Php ont Thy Philippine Lane ZY CHAPTER I \e LEGAL & PHILOSOPHICAL ISSUES There are seven blunders that man society commit and atl he ile: wealth without work. pleasure without conscience, knvedse sith! chaser fommerce wthou morality, slence without bumaniy, worship wide sass, ond poles without pricpes. —Mokanda Gandhi, nda ations an English aise I. THE FOUR ELEMENTS, ‘What is aw? ‘connote binding communal rules — the dos snd the don of social order, Law has been classified primarily into jurl and nour. ural o ‘human law refers to sanctioned or enacted Iw such a states, ese las, omative rules, and precepts. Meanwtile, non Law are rules not anchored or premised on human promulgation, such as divine law rata land physical lw. Divine law proceeds fiom sacred writings such a the Bible or the Quran, sustained by eigious fot, Natural la, as wl be cscussd further, isthe law of our human nature, based onthe demands of our humanity: Finally. physical law refers tothe mechanical laws ofthe universe. Examples are the laws af gravity by Galileo, or the Newtonian mechanics or Einstein’ law ‘of relativity. Now-jural laws are the concerns of theoogios, scientists, and physicists. “The concern of lawyers is jal law, and to the exter of pointing the nn jural natural fa. tis in tis practical sense that source ofa right or du weask, “Whats law “ ic and concrete sense i @ |A Philippine case defines “law in its spi 5 rule of conduct, just, obligatory, formulated by legitimate power for commo Lega hoop tnes {11aa eg ae ne - sica (*ST.) 1ll, Q90, AA, Aquinas is Soma Theologica ST." as 1s Some fresno tvarl the cormen pe Fn mtn enone Ine” te pe a i ssa = coe at ere a int cpt ses ore cae kd ty “ce a ee ee that “hw i 30 ulated by bi feng: (1) reason (bonus com Max Weber's definition in Law in Economy and Socety ides tw as aleyitimategrder “An order wil be called lave if ts externally guar ty the probability that coercion (physical or psychological), to bring abo conformity oravenge violation, and willbe applied by a staff of people holding themselves especialy ready for tat purpose.” For Weber, the basic features of law that distinguish it fom customs and conventions are: (1) the dty to comply; (2) due to external actions or threats (6) by individuals tasked to enforce the law. In contrast, there is no sense o duty in customary rules of conduct or “usages.” Ci 3s, meanwhile tue agreements that parties have a duty to follow in good faith, but witb corollary punishment when disobeyed. These are often referred to a8 “st laws For Jose Rizal, Anicle & of his Rights of Man states that law shat be “srily and evidemly necessary.” one that is “previously made sl promulgated, od correctly applied: The classical elements ofthe prevailing definition of law by jurists at discussed below 12L_Patomaphi Pap ond Tyo Plpin Law Reason and the Common Good The Law. pefectonofrcson —Sir Edward Coke, sts: Commentary upon Linton Ua cf na cag ma nn om sing Sin hes [ST 1 Oot) Temes ofan a Funan fry en ate pce a tr ‘Aresoabl laf neces, moral sn, clr n expression and dpe tine dine 71 919) Tepe eed lan ‘Seniesa twdca ne aes ences of bic hmanty aed pa il me ino te cin. Tac eed atu ae ses pa tamara aan ee fra aed nb Site ofan, hich ovens esti enon na tslvosalen fen bol deme ed ope onsen tnd on he Ct oi ofthe Pps Los oa ae icin nl mn wifey on mth le ‘This does not mean that all ethical o reasonable norms should become laws, but only those rus concerning man in relation to his fellow men, Ae all Token sich edo ass oes ‘Aquinas, to, believed tht law can only govern extra moral conduct, ‘ot internal or private morality The end is thatthe law should observe and rome sal, There isa grey area ‘on consensual acts between individuals (im pevate contracts, confidential agreements, or sexual relaienships) as they involve another person and may ‘ot be strictly “itera,” “personal,” and private." Thus, consensual acts like incest, prostitution, and adultery, may be subjected to regulation in favor of harmony and healt procreation that the public has interest. tnppincs foc the ras aunber" Rar she goa of everyone tow achieving penal precio. I bars the common aspiraons ofall, ot just the majority rte auoriy I is based on the principle of equal digi o all tonave a quality of if. The common goo is realized tough a demecratc ftiipation of onsiceion ofall members of society” considers all Sakeholders interes special conditions, and itera development Sill, majoritasianim argues that although the majority opinion can be lie itl ets fave the ts eso tore heads are better than one; ha thee is more ineligsnce, experience, and ‘wisdom in number, Futhe as Aquinas suggested, the lawmaker should frame Leal Princes (13Secs He ee eee hen exe rm apn (ST. 098.4) “ jistingush popular mors octet tr Pamthough it may be unpopular to many. ona ly as good Pong csi mori promulgation and Authority some things easier eal tan 0 eat. Nicola Cane < on sep inthe lw-aking oes oie tthe pubis, The patito le tte seo he i by some kind adertie Pa oon in some jracons, by hear year Cony eae ee Caps ofthe aw must be accesible 10 the publ fo ey ‘ndesnding ts cones In preHspnic Pipi, Rizal's annotation on Morz's Saou deta es Pipa sate that te enforcement of la by a confoeten Sects wren based on printed or writen law but eixtomany en LS fy alton constency snd harmony: “The force of aw at {Rian ona pic f pape butt ts engraved in the memory of tae {evn tn made if they know since thee ender age, iti in armen ‘er cosoms sd above allt sbi.” Tuhada » Twera, based on Anicle 2 of the Civil Code, ordains th Philippine laws should take effect 1S day’ ater completion of their publicize inthe Oficial Gazet rin a newspaper of general circulation unless others provided. Once dcred, it isthe citizen's duty to keep abreast ofthe lw ant his ignorance will ot excuse him from non-compliance. This requirements supposed to addres the injustices under President Ferdinand Marcos, who wed to issue decrees wih hort notice, so that target subjects could be easily ptto jal Inthe ancient times, Suetonius also wrote of the tyrant Roman emer Caligula, who was known for proclaiming laws and taxes without posting. and iflaws were ever posted, notives would be placed in isolated places, or woul be hung up high, or writen in excessively small letters, so that no one could read them, Due promulgation must come from a competent authority, not from oe Private individual or publi official unauthorized vo enact a law. Law mus ‘sued by one who takes charge of the community, who wields the powet Promote the common intrest UL Ponape: Phimapy an Theo of Philp Low Modern Standards for a Rule of Law tn The Morality of av Mac In Th Moai ofa. Hara La prose Lon Faller enumerate ig Rave of ae’ ry em Asie ls wiles he itera pce moriy oe so ee a inl orig The i ings check cae a eH 1. Theeck. oF law, so Pe sc law, so that disputes have 1 be Failure to publicize or make known to the affected party the rules; Unclear or obscure legislation; Retroctve legislation; ‘Contradiction i the tw; Demands that ae teyond he poner of aed paris to sere; ‘Unstable eatin o equetchngs inthe a and Discrepancies between adation/dmiistration and egisiatin. In the 2004 Report ofthe Seretan-General on the Rule of Law and Trastona Justice in Confit and Post Confer Socctcs, the UN Sectary General Kofi Annan defined what constitutes “rue of law” in the modern inermatonl arena For the United Nations, th ef refer ta grains of _govsmanse in which all persons, suns and eal, public and ‘vat, including the Ste il, ae-agsusiable to lows ta publicly promulgated cul enforced and independently aja and which are consistent wih iteration! human rights norms aod Standards Irequies, as well, measures to ensure adherence 1 the inci of supremacy ofan equaity before tela, account {othe La, fairness inthe application ofthe lav, separation of power, participation in devsion-making, egal certainty, avoidance of vbiterinss and procera ad legal transparency. I BRANCHES OF LAW Law is male by the wie topreserne itary over he ser = Toba et, telus cen The law can get very technical. An understanding of major tems and divisions of law is necessary to map ou the diferent fields, concerns, and aspects of lv.EL in subset corollary pot ‘he manne ofa rights andi tons. Rem riministering ene a een aoa ae is constrand the Ste. Vilation of public order through punta ines sui eriminal ew. Private Tem 09 02 andi concen os eC of ndae ot rae ine eB ein i i tale cy es ie goenel ne Eo oust eo Pte ee ee og ae lee eee a ST ES, Saas talows eee La et ef ionmanb rte ans ano le Ser eam Law Ote(eheoet Ca ee rigais eee ie il coon ai eee pee eve a aa min vicisorcae, Se ee aa tase apeiased eat tae a erat iecnel tt opel ty be mr ot Islanie law o Sharia law (“the way to follow”) is based on the ma preceps of Islam. Muslim countries such as Saudi Arabia, Iran, and Paka tre consiered “Islamic States” a8 they base their law purely or most Siaria, while moderate Muslim countries, such as in the South East a! Turkey, flow a more liberal mixed system of Western and Islamic laws sacl is derived from four sources: (1) the Quran, or the wort! ‘God as given othe prophet Muhammad; (2) the Suana, or the sayings a ‘of Mulianmad according to waitin or hadith; (3) the judicial consesis |slamic ues (gad), following the historical consensus, similar o coast law preefens, of religious scholars (ulama); and (4) Analogical resale ‘sed in cicumstances not provided in the other sources. An example WA! ee in of omy hich ips wi tly exe punked me Qo Se ain much sco. tony ee eS i ron paishblby mull lates oy arptcaienn ga Nd ie. tein hr Tite el at rinse pa til ety tsa eatin a Tee es sols o ences Te ean ne ee mete ust iev manus rrecs eae es pci tsp ls te ch, aya talecrae © Me Cni pn es MAIN ISSUES IN LAW ‘The 1987 Constitution starts with a Preamble that invoduces the following endeared principles: We, the sovereign Filipino people, imploring the aid of Almighty God, inorder to build just and humane society and establish a Govern ‘ment that shall embody or ideals and wpitations, proms the common ood, conserve and develop our patrimony, and secure t9 ourselves and ‘our posterity the blessings of independence and demexracy under the rule of law and a regime of ruth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constiaton Based on these precepts, itis therefore indispensable 19 begin with 1 discourse on law in relation to th, authentic freedom, jstice, equality, propetypatrimony, the forelule of law, and other moral aspirations thst inspire, diet, and serve the spit of our charter and the rest of our laws, Law and Truth (Que et eras? (What i rth?) — Poo Pleo Jesus Cris ia ewig, John 1838 ‘When witnesses stand before th cout, they are asked to tke an oath otel the truth and nothing but the uth.” I they deliberately stat falsehood, they willbe ible fr pes In equring witnesses to subscrike and swear on the truthfulness or veracity of ther statements, the lw is presuming that (1) there is a truth or actual state of things and 2) witnesses are oblige to tell eat Poop ames [17izes te value of taheling, oa ic Tie dh og or at ple wba PES secking know Ya we i «case long toto oP POS of a complainant and a respond witnesses ent atoning camps and tll CODIFY stories, Fay toil the truth the COU hast determing ash parties cannot be both tru. Both pars oc is ell te sine » zenaisbut oe version will AVE Oe aimed yn seat eee a a et es) pret tl eet nF Ester one ay is eovethoae A ght tebe tie tre version of ts. Faulty memory, he mis 2 ee fy oc ees sara ste paral tf gestions and answers m3 recs inte our window to realty, object state that he an exeoul reality or objestive truth independent of what a person thik, ene peeves i and this ean be discovered by the Proper use of the sess aa ease Our ses and reason give us opportunity to test or vey ein tice ia suposed reason or explanation cannot be verified, then ity se rnionaistion or excuse. I is contradictory to state that “theres re teens such statement ie tel claiming to be true. Rather, cline tht ca be pial or imprecise but this can be corrected or supplemented independent cbseration,coroboration, or verification. isu, peso may lee an hk hat he wa ib scan el the worl ound an thi independent oer iS er was “uh Ite “ut af the cme” th Smee nse then we ace aking of opine ‘hg cnt eerie sa eng nat lying on pero tree pening on psa este clie These ate nde Stat ein pont oy hat beauty inthe xe fhe ele” ‘Sins asome poral te, pspetvo ith. is there obcias Sats wince aed abot pion, presumption, hog¥on a= Sethe tet of hier extiony fe his oer exper Pe Isoelee f wat apeed ot what ior ber inerpetation oP abou tile ore an exe However lative personal taste can be its still not accurate to sta ‘oe opinion i s god as another” or “one belie or philosophy ii ‘heer Some opinions are expert opinions due to familiarity oF pec ‘person afield of inquiry Some opinions are more informed, wells ‘nd consstnt with realty Some legal opinions of justices are more ine UWL Pop: Pop ad Theo of Php Law ite lw or jurispraden tha ancter opinion, hence it camot be sid that the maori, concuting, and dissenting opinions are equally Seteasbic oe elif oF ath systems are also jut tx od crn a Leash Icke hs iso med of inl oervaon lav hasnt oha eh bevenlncl sands efevienes ee mon feo expeines and eon, heat gh an ans (cs a fe) an "et bt nl Set evidens inte atay ee Rule 128 ofthe Revised Rules of Evidence defines “esdence” as “ihe means sanctioned by these rls, of ascenaining ina judi proceding the sth respecting a matter of fact.” For evidence tobe adminis k mast) relevant to the issue, such as elements to be proven, and (2) not exeled by haw. termining the wut, that is, through Since the Rules of Evidence doesnot admit certain evidence (evidence ‘not marked, authenticated, of ientified, hearsay evidence, enidence obtained fiomillegal searches), ses presumptions (innocence ofthe accused, regulary ‘of public acs), provides difering weight and sufficiency of evidence (beyond reasonable doubt for riminal eases, preponderance of evidence for civil ase substan evidence for administrative eases, probable cause for preliminary ‘investigation, and requires the conduct of «al, what may declared as te only the “legal truth” or “Judicial truth” orth supported by leally !dmissble evidence ina judicial proceding. By choosing eatin procedures for establishing evidence, the lw limited itself on what it may pronounce ab tre. Hence, legal judgments on facts are not necessarily te “substantive ‘truth or complete, actual tut of what occured ‘The same happens in scenes or any study of resarch, A chosen ‘methodology limits what may be admited as relevant and tree For example, in choosing the scientific or clnial method, science rules out occurences that cannot be controlled or placed into contol groups. Hence, science cannot be expected to prove God and spirits becaute these are not chservable inthe laboratory The effects of God or paranormal forces can be observed but i would be preposterous to say that these entities can be sientfialy tested through experiment Why does the Rules of Evidence exclude certain evidence that will ‘otherwise provide the complete or actual fats the way we accumulate reports? The reason is because certain sources of evidence are unrdiable oF i not the best evidence available (original copies), or unfair to the ther party (oot Subjected to trial or crost-examinaion), oc tainted with ilgal methods too fore not foolpro ous wee”) ani there of sou, ct ofthe tons He) & cae Cece of ie, bet OP Seprive oreo Law Autry and Force thu ce, impotent dace a Pes Py sprit wetter sw 906 do? ane eine wy Ps ora Pt vu ne, aaa sn oa meaning grace” in Greek, asthe Personal sey Sil aon min a ec ‘Soceremain mimeo tin Tn a a dr, and Josef Stalin. Ordinarily, charismatic or ny tase i Wl Bee roast rere aan ee ee oat afickewee sane! aw ine Se aay ee aren. ey mae ri i il rere na egmasietotae eet cena sea Cae son nook hg! Sead Cuma cpus tah an nade hon rum prods and condo ee een ee cine ae ‘Enforcing Law ‘Should law be coercive to be enforceable rod? ‘The force ofl ssid tobe characteristic ofa true law. Both nati sd pits etait must be some form of rule or commando reaming big, or working earnest. There is dispute that unmerited wealth (G-gouen wealth, wealth Bequeathed because of aristocracy, political dys ‘or floracy) shouldbe redistributed, but how about carn weal? Should ‘we steal from the rch to feed the poor? Here, egalitarian policy may punish the Agent and reward the indolent, It promotes mendicaney (whois given free ‘subsidies from taxpayers’ money) atthe expense of hard Work. Redistbatng the rewards of success lke a teacher elloating the grades of an A student to make him more “equal” with C students, or penalizing the A student with higher clas des o lass assignment for having hgh grades. [AS vast holdings may actually perpetuate underserved or neared ‘wealth, Nozck atleast proposed in The Examined Life that inheritance taxes ‘may be limitedly imposed, without preventing the vali ansferees fom using their property as capital for personally earned wealth For capitalists, redistribution of goods should be made not by free Aistribution of propery or land to equalize economic status. Redisribution can ‘be made through mutual exchange of goods by consent though commercial ‘contracts. A person parts with his goods in exchange fr anothers spre ‘money/surplus goods 80 that both are better off andthe excess of each onesis, I sine cv nets and capacity Bs a i sa Siar an mom . Iso be acount unio atsme oi my abo SUNETOAN ge con a ear cre S00 Atha sey a nanan ah Mecano bd nein gt NEMS. A Work woul wl be cme moe (deca ad ans mayer iced wat es oul oly elarze his tax hai eo) be oe a enw SDS OF EPS ine ing rode Nope stead eNOUTBS CA ets ro need ot be pelized heavily 5 they i, il Y Ac etemy nanan profile busines et pe eg et can ao “ put refi from bardening people's income (income tax) and yal een Law on Property and Economics Comma oe tet fe nial. Cpiaisn oes th if ed ead aber be ce Geom ne nan of roe hr cen Ils fod ihe cn rer = Marin Liter King, here Do eGo Fomine “The law can make you millionaire romorrow. It can also make yu street at overnight. Economic polices, based on laws on property, can drive markets ol trade as moch as these cn kill industries. Whether or not you ae empl! righ now, or ruming a successful business, or making much money, oly the fil ife, canbe the consequence of commercial laws Capitalist counties economically differ from Communist countries ol Protestant states fom the Catholic and Islamic, beeause people's diy iteology, belief, and perespton on work and money eventually become it and frame the economic agenda. The values we put ino the pursuit of prope ‘and prosperity aleady spell much difference on economit pursuits Max Weber's The Protestant Ethic and the Spirit of Capitalism thet Fees’ vale for hard work, indviual juntietion per éorichment, multiplication of resources, and prosperity as sign of divine five made Protestant States economically richer; even as religious Catholics mi 301 Pnsphi: Psy and Teo Philp Lae chien ad ete ial wd man E umeclacgeemcnn ineaemon aholc counties in general and Since Webet, Protestantism has been identified with industrial evelopment, proposing entrepreneurship as the soltion to the bondage of poverty and the means io multiply talents and resources. The God News was ‘tended to redeem the peopl fom poverty, foe God's Kingdom to come on cath sis in heaven. Crit of Weber tat that his analysis of Catholicism particulary applies to Hispanic and French Catholicism. Haan Catholicism Aitferently ushered the Renaissance, the birth of universities, high art and calle, and the emergence of the frst banks, foreign exchange, and bond ‘markets. Protestant colonies are sida be opulent because their poo indigenous populations were displaced to give space for White ster (displacement Alapore eolnizaion) This i i cone w Caholc elie ward ‘ssimilation and intermarriage with the native population. Oficial Catholic socal teachings have taken distributive socialist thi, emphasizing works f charity, justice misions, an principles like "preferemiah ‘option fo the poor” “solidariy” “universal destination of goods,” “collective 00d,” and “economizing good.” While modern popes have supported a fee and competitive make, they have citcized “consumerism” o an orientation towards excessive surphs,of valuing «person for “having” than “being” “The good of persons and not jst profits should be considered. The Catholic Catechism teaches thatthe rights, needs, and relationships of man cannot be reduced entirely into economic and market factors (Capitalism), or solely by ‘enralized planning (Communism)- Reasonable regulation ofthe marketplace in view ofthe common good, hierarchy of values, nd respect for rights are commended. Praietive work fs alsoa duty and should be a source of dignity Positive and negative attudes to prosperity and entrepreneurial sucess, according 10 Napoleon H's “mind-power” philosophy, can go a lone ‘way to affecting. one's imagination, energy, persistence, decision-making, land subconscious manifestations of ones ideas and dreams. He sugsssted Visualization, mediation, and auto-suggeston as therapeutic means to gain ‘Optimism, As a journalist and law student, Hill tate his 20-year research