Introduction To Law by Rufus B. Rodriguez (2001) PDF

—«
INTRODUCTION
TO
LAW
\
by
RUFUS B: RODRIGUEZ
A.B., M.A., LL.B., LL.M.
Former Commissioner, Bureau of Immigration,
Former Dean, San Sebastian College of Law;
LL.M. (Harlan Fiske Stone Scholar),
Columbia Law School, New York, (1995);
Certificate (with Honors), Parker School
of International & Foreign Law,
Columbia University, New York, (1995);
Fellow, 1993 Academy on American and
International Law, Dallas, Texas, (1993);
M.A. Economics (with High Distinction),
Xavier University, (1984);
17th Place (86%), 1981 Bar Examinations;
LL.B. (Purple Feather Honor Society),
University of the Philippines, (1980);
A.B. Economics (Summa Cum Laude),
De La Salle University, (1975);
: High School (Valedictorian), Xavier University (1971);
Grade School (Valedictorian), Xavier University (1967)
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Dionisio Q. Selma and Fr. Joel Naranjo.
I also thank Fr. Samson Silloriquez, OAR, parish priest of San
Sebastian Parish, who lent me his notes on the process of the for-
mation of Canon Law and Fr. Demetrio Penascoza who gave me a TABLE OF CONTENTS
history of the canon law.
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My gratitude goes also to Atty. Antonio Santos, my classmate,
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present librarian at the UP Law Library and Ms. Marina Satin, San
Sebastian Law Librarian, who lent me most of the materials I
needed for this book. My thanks also to Ms. Luz Pangilinan and Ms.
Janice dela Cruz for typing the manuscript of this book.
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RUFUS B. RODRIGUEZ
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April 01, 2001 seeeneeeeeeseeeee
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1. Natural Law...
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Physical Law
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b. Moral Law.... pveeasdavennveqpecdaueces
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Cc. Divine Law...

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2. Positive Law
Law, its nature “"
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The Historical View ........c.cccccssssseesssesssceeee guseeenanees
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The Teleological or Philosophical View ... eeeneeeneeee
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The Analytical or Positivist View ............
The Functional or Sociological View.........
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The Legal Realist or Pragmatic View... ab eceeeceeeeneee
The Policy Science View .........
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The Marxist-Leninist school.............
PART II. The World’s Legal Systems
The Legal Systems of the World ....... 27
1. The Egyptian Legal System ........... PPPTTT TT

28
2. Mesopotamian Legal System ......... 31
iv
3. Hebrew Legal System,........ccccscsscsssssscseesessessvevesnes 84 5. Leyes de Toro w.ccccccscccsssccssessceseseseees 133
4. Chinese Legal System............. 38 6. Nueva Recopilacion..........ccccceeeeees 134
5. Hindu Legal System ................ j 42 7. Novisima Recopilacion 135
6. Greek Legal System................. CB Sivrenaneswovonannees 46 8. Modern Spanish Codes 136
7. Roman Legal System (Roman Law 51 : laws ........cccccccscccssecesneeeneennn ed nnn
b. —- Colomial 138
b.a. Archaic period..............
Republican period... ananngnenmamuma
oo . neee
7 5253 3 .
The First a.
Philippine Republic; (Malolos) .:****""""*" 140
c. Classical period............ GACTASCUN ecnnpneannooneners 58 4. The American Period «+++s+++++sststersrenerstenenerennnens 144
Celtic Legal System ......... sc m rau tleeiccaaicetaaaah
CaN 65 &@ - Organic LAWS ....cccccccscssessscsssssssssvecsessseseees ,
ODAd
145
Slavic Legal System.......... Sr Teer is 70 b. Pres. McKinley’s Instructions of 1900 ......: : 146
10. Germanic Legal System....... Leones 75 c. The Spooner Amendment of
11, Japanese Legal System 0.00... sssssseecseesneeenseenseess 79 March 2, 1901 .....crrssrsessssseessseeessensnccnne 148
12. Anglo-American Legal System 82 d. The Philippine Bill of 1902... ee . 150
a. Common Law in England ...........ccceceseseeees 82 e. The Philippine-Autonomy Act of 1916 ....... 152
b. Common Law in the United States ............ 97 5: The Philippine Commonwealth Period............... ; 156
13. Catholic (Papal) Legal System and the a. The Tydings-McDuffie Law of 1934 ........... : 156
Canon Law 98 b. The 1935 Philippine Constitution .............. : 157
14. Mohammedan Legal System es 106 c. The 1935 Philippine Constitution
B. The Main Legal Traditions of the World ............. 108 eae ee cae eeeee 7: (161
d. The Government in Exile... 161
The Civil Law Tradition ..........ccccccccccssseeses seseeeeees 109
rial<i
Common Law Tradition 112 6. “ys

The Second Philippine Republic:
The Socialist Tradition re (Japanese Period) .............:. 163
Distinctions between Civil Law and 7. The Third Philippine Republic....s-"" 168
Common Law ......cccccccsscessssscssccscessecscessevsceceee 116
a. Civilian Authority Under President
Osmejia restored Sccwcccedesatevceuccauseccusccsees 168
PART III. The Philippine Legal System
b. The i947 Amendment (Parity Rights) ........ 169
A. History and Sources of Philippine Law ............... ce. The 1973 Constitution ...........ccccccesseeceseeees 169
117
8. Martial Law Period SdbcbcRCETRCSe Woes ceebacedeesecbuccuscecwesenes 170
1. Pre-Spanish Period 0.0.0.0... ccccssssssesecesecessscacssseeseees 117
a. The Maragtas........ce Seaeacg seca weeee a. The Amendments to the 1973
119
b. The Code of Kalantiaw . Constitution ........ cece
ttt 175
c. The Muslim Codes dun
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120
123 9, Provisional Government cecne Nassssesecososeggesscsonssonenoese 177
2. Spanish Period ..........cc.c.ccce+ secesesesessvecsseeseusvesecees 125 10. Fourth Philippine Republic ss-s-rseeersstsereeteete 179
A. Spamish laws ......cccccke ccccccccccccececcsecsececsecceeeeee 125 a. The 1987 Constitution csrsssrrrrrrrsrsteseeeeseeeees 179
1 The Brevarium of Alaric..... ..cccccccsccseee 127 B. The Philippine Legal Tradition .. 184
e — sues 128 1. The In Re Shoop Case ...........cccccscscesssessessesene 184
tL — te i ececceneccccrcscees sabpebeeseesedees 129 2. The Philippine Legal System is a Mixed One
as mlete Fartidas ..............
cess etacecenaeecs 131 but primarily Civil LW oececcccccccccccecccceceee
1” 191
vi‘ vii
PART | — LAW IN GENERAL
A. Law, its role in society.

Law is a dynamic force for maintaining social order and pre-
venting chaos in society. It is difficult to imagine the existence of a
community without law. Lawmakers, courts, and other officials of
the law help to preserve a harmonious society. A basic understand-
ing of the law and the legal process of one’s community promotes a
better understanding of society. Law is not a body of static rules to
be obeyed by all citizens subject to its sanctions. Rather, it is a
dynamic process by which rules are constantly being adopted and
changed to fit the current problems of our evolving society.!
Law embodies the story of a nation’s development through the
centuries. From primitive customs, codes, and practices, the law of
the nation evolves becoming a sophisticated system administered
by highly trained jurists. Our present-day law should not be taken
for granted. It represents years of struggle and thought. To fully
appreciate a nation’s legal process, we need to understand its past.”
B. Law, defined.
1. In its comprehensive sense.
The term “law” in its most comprehensive sense means any
rule of action or norm of conduct applicable to all objects of crea-
tion. It includes all those which necessarily determine the activity
of men, all those which necessarily determine the motions or in-
stincts of brute creatures, and all those which God, before all things,
has imprinted on the whole of nature.
1Grilliot and Schubert, Introduction to Law & The Legal System, Boston,
Houghton Mifflin Company, 1989, p. 1.
Td.
2 INTRODUCTION TO LAW PART I — LAW IN GENERAL 3
The word “law” in the English language is used to refer to community, imposing upon them certain definite patterns of good
both the sum of all legal rules (ius, droit, diritto, derecho, Recht) conduct in regard to their external relationships. Every member, in
and the express rule laid down by legislative authority (lex, loi, other words, is commanded or forbidden to do or not to do certain
legge, ley, Gesetz). things in conformity with the totality of the moral laws of the
community.
2. In its specific sense. Although laws and morals have a common ethical basis — the
social conscience, and a common purpose — the happiness of man,
Law, in its specific sense is a rule of conduct, just, obligatory,
observance the field of morals is more extensive than that of law. Law covers
promulgated by legitimate authority, and of common
only social activities, or the relations of man to his fellowman; but
and benefit.®
the field of morals includes; not only the duties of man to his
The characteristics of law therefore are: 1) it is a rule of con- fellow-being, but also those to himself and to his God. Even among
duct, 2) promulgated by competent authority, 3) obligatory, and 4) our duties to our fellowmen, many are still dictated by morals,
of general observance.* such as those which have a psychological basis, including the du-
ties of assistance and self-sacrifice.®
An example is the New Civil Code of the Philippines. It pre-
scribes rules of conduct governing the private relations between In view of the distinction between law and morals, an act may
one person and another on family matters, property, succession be entirely in conformity with law but contrary to morals; and vice-
and contracts, among others. It was enacted into law in 1950 by versa, conduct may be justifiable from the point of view of morals
the Philippine Congress, the competent authority to promulgate but contrary to law. Law and morals, according to Colin and Capitant
such laws. All Filipino citizens are obliged to follow the rules and are like two concentric circles; it is, however, perhaps more accu-
norms prescribed by the Code. Finally, the Code is applicable to all rate to say that they are like two intersecting circles, with many
Filipinos alike without distinction and therefore of general observ- principles of one of variance with those of the other.’
ance.
It is plain that there is much law that has nothing to do with
morals. That a driver shall keep to the right or left side of the road,
C. Law and Morals. or the traffic laws, have no connection with morals. So, too, is the
question of whether there shall be one, two or three witnesses to a
Morals is the aggregate of all the rules of human conduct
will or deed.
growing out of the collective sense of right and wrong in the com-
munity.® Conversely, what is moral may not be legally demanded: A
witness to a crime may be morally bound to report said crime but
In every community or group of people, certain rules are im-
there is no law punishing said witness if he fails to do so.
posed on the members because in every people united in society
there are wants and demands which are different from one an- The inter-relationship between law and morals is implanted
other. In the interactions between these rules there arises a set of in our New Civil Code. Article 21 provides: “Any person who wil-
standards of what is good or bad, and therefore either enjoined or fully causes loss or injury to another in a manner that is contrary
prohibited. These rules then are applied to the members in the to morals, good customs or public policy shall compensate the lat-
ter for the damage.” When Chairman Jorge C. Bocobo of the Code
Commission was asked whether this proposed article would obliter-
ate the boundary line between morality and law, he replied: “The
31 Sanchez Roman 23.
4Tolentino, Commentaries and Jurisprudence on the Civil Code, Vol. I, Quezon
City, Central Lawbook Publishing, 1985, p. 2.
5Gamboa, An Introduction to Philippine Law, 7th Ed., Quezon City, Central ®Tolentino, op. cit., pp. 2-3.
Lawbook Publishing, 1964, p. 3. Id., p. 8.
answer is that, in the last analysis, every good law draws its breath tial. A custom is merely that which is habitually done in the com-
of life from morals, from those principles which are written with munity. It is distinguished by the element of convention, although
words of fire in the conscience of man.” naturally what is usual is likely to be thought right. Thus, in China,
it is customary to use chopsticks in eating while in the West, knife
Dr. Bocobo found inspiration to bolster his cast of mind and
and fork are preferred, but one method is not regarded as ethically
attitude towards morality from a similar provision in Article 826 of
superior to the other. Nevertheless, the neglect of even such a
the German Civil Code. The appeal of this Code is that: “It does not
customary social rule as that, for instance, which forbids eating
try to teach men in a broad sense, but it emphasizes ethical im-
peas with a knife may have dreadful consequences.!°
peratives. Good faith and fair dealing are to be observed in all
affairs. Breaches of good morals, abuse of rights, and underhanded It is, however not so much custom as “customary law” that
legal transactions are defeated. The code was meant to fit the soci- has troubled jurists. Customs may exist with reference to other
ety of the turn of the century, but through general clauses that matters than social convention, They may govern relations which
leave the making of specific norms to the judges, it could be adapted in the modern world are commonly treated as juridical. In rela-
to new economic, cultural, and socio-political postulates.”® tively advanced communities, the manner of selling a chattel, or
holding land, or collecting a debt may be governed by customs, and
Dr. Bocobo found it necessary to stick to old precepts of law as
we shall see that in the most primitive communities, which have
enshrined in the Institutes of Justinian, which says: “Juris praecepta
no forms of political organization, the whole sphere of social rela-
sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere,”
tions is almost entirely regulated by custom. Primitive “law” is
rendered into English: “The precepts of the law are: To live hon-
customary law par excellence. Its only sanction lies in habit. With
estly, to hurt no one, to give every one his due.” He explained:
advances in political organization, however, customary law begins
“When it is reflected that while codes of law and statutes have
to break down rapidly, or rather its recognition begins to depend
changed from age to age, the conscience of man has remained fixed
upon the sanctions of the political government. The “customs” are
to its ancient moorings, one can not but feel that it is safe and
thus rapidly translated into “law” and thus enter upon a new exist-
salutary to transmute, as far as may be, moral norms into legal
ence. The origin of many rules of law in custom is long remem-
rules, thus imparting to every legal system that enduring quality
bered. Land is still held in England by “the Custom of Kent,” al-
which ought to be one of its superlative attributes.” Thus, as a
though the enforcement of this custom now depends upon enforce-
basic rule of human conduct, Chairman Bocobo provided in Article
ment by the courts. As long as the administration of justice has not
19: “Every person must, in the exercise of his rights and in the
yet been taken over by a professional class, it is easy to maintain
performance of his duties, give everyone his due, and to observe
the illusion that the law is still nothing but custom. The judges
honesty and good faith.”?
seem only to be declaring the popular custom rather than making
law. But long after law has become professionalized, it is common
D. Law and Customs. to continue to speak of customary law; then, however, the term has
become hardly more than a synonym for “unwritten” law."
Custom is another method of regulating human conduct which
presents much the same problem in relation to law as does morals. Mankind has been governed by custom longer than it has
But there is at least one important difference between moral and lived under the reign of law. It is little wonder, then, that many
customary rules. Customs are far less imperative in their force for jurists not only ha ed to see in custom the most fertile source
they do not normally imply ethical evaluations. To fail to distin- of law but have also regarded law itself as the spontaneous expres-
guish law and custom is to confuse the normative with the existen-
\ 8Rivera, The Father of the First Brown Race Civil Code, Quezon City, UP William Seagle, The History of Law, New York, Tudor Publishing Co., 1946,
\ Law Center, 1978, pp. xii-xiii. p. 10 }
Td. ; 1yd., p. 11,
PART I — LAW IN GENERAL 7
6 INTRODUCTION TO LAW
Natural Law can be further subdivided into physical law, moral

sion of the genus of a people, which develops naturally very much
law and divine law.
like language.!”
a) Physical law
E. Law, its general classifications.
In the operation or course of nature, there is uniformity of
Law in its broadest sense can be classified into natural law action or order of sequence. These uniformities and order are so
and positive law. constant that they are completely depended upon with confidence
and belief. These are known as physical laws or laws of physical
1) Natural Law science.
Natural law is not a legal system but consists of certain fun- To this class belong the so-called laws of gravitation and the
damental precepts of life which are discoverable through divine law of chemical combination. For example, two atoms of hydrogen
inspiration and the use of reason. It is a system of rules prescribed and one atom of oxygen if combined will always produce a molecule
by divine inspiration to all men, not by any formal promulgation, of water. They are really but expressions of a certain order in
but by inward impression upon the human heart and those rules nature according to which certain results always follow certain
attained by the light of natural reason and understanding. causes.!4
Natural law originated in ancient Greece. The Greeks per-
ceived the order and regularity pervading the whole of nature with- b) Moral Law
out which there would have been chaos. Heraclitos (540-475 B.C.) Moral law is the totality of social norms regulating human
defined natural law as the natural harmony and order of divergent activity growing out of the collective consciousness or public sense
things and events. of right and wrong of the people. It arises from our conscience and
In Antigone, a drama written by Sophocles (496-406 B.C.), applies to our higher faculties. An example is the rule to do good
King Creon of Treves prohibited Antigone, the sister of Polyneikes, and avoid evil.15
from burying the latter. King Creon had killed Polyneikes, a rebel, These norms set the pattern of good and exemplary conduet or
and ordered his body to rot outside the city walls. Antigone invok- the aggregate ethics of the community. Another example is the
ing the “unmutable unwritten law” or natural law, appealed to norm that spouses must be faithful to each other.
Creon who refused. Antigone nevertheless buried Polyneikes and
she was in turn buried alive upon orders of Creon. c) Divine Law
Plato and Aristotle later on strengthened the natural law The system of rules which God laid down to govern the opera-
theory by providing it with a philosophical foundation. tions of the univers € is called divine law. These rules are according
to the will and com mand of God. Divine law is the law of religious
As Cicero who brought the Greek idea of natural law into the faith and concerns itself with the concept of sin and salvation, of
Roman legal system, puts it: “There is indeed a true law (lex), right
reason, agreeing with nature, diffused among all men, unchanging, death. and life, of the temporal and the eternal. It is the law of
everlasting. . . It is not allowable to alter this law nor to derogate God.
from it, nor it be replaced.” Under the Old Testament, divine law is embodied in the Ten
of the precepts of the natural law are righteous- Commandments. Under the New Testament, divine law is found
Examples
ness, justice, equity and fairness.
14Gamboa, op. cit., p. 4.

‘Paras, Civil Code of the Philippines Annotated, 12th Ed., Vol. I, p. 2.
127d,
16Pascual, op. cit., p. 2.
13Gamboa, op. cit., p. 3, citing De Republica, bk iii, XXII.
not only in the Ten Commandments but also found summarized in Examples of general or public law are: Constitutional Law, or
the Golden Rule which ordains men to love their Creator and that which governs the relations between human beings as citizens
neighbor in the manner prescribed by Jesus Christ.“ of a state and the governing power; and Criminal Law, or that
which guarantees the coercive power of the law so that it will be
Divine Law is the revelation to mankind of eternal law. In the obeyed.
words of Professor Paul J. Glenn: “The Eternal Law is God’s eter-
from eter- Examples of individual or private law are Civil law, or that
nal plan and providence for the universe. God, decreeing
which regulates the relations of individuals with other individuals
nity to create the world for an end (which is Himself) eternally
is from for purely private ends; and Mercantile law, or that which regu-
plans and directs all things toward that end. Thus, there
acts and move- lates the special relations produced by commercial transactions.19
eternity a “plan of Divine Wisdom as director of all
defines the
ments” — and this is The Eternal Law. St. Augustine Positive Law can also be subdivided based on whether it cre-
Eternal Law as the divine reason and will commanding that the
ates a right — substantive law, or merely provides the procedure to
natural order of things be preserved and forbidding that it be dis-
enforce private rights — procedural law. Constitutional law and
turbed. The Eternal Law extends to all acts and movements in the
civil law are examples of substantive law while remedial law, the
universe. Thus, bodies obey the tendencies of their nature and
study of the rules of court, is an example of procedural law.
follow the laws of cohesion, gravity, inertia, etc.; plants grow; ani-
mals follow the guidance of instinct; the earth turns upon its axis; Positive law can likewise be classified as either mandatory, or
the heavenly spheres swing through their mighty orbits; all in permissive. Mandatory laws are those which have to be complied
accordance with the Eternal Law, powerless to reject its influence with, because they are expressive of public policy and disobedience
or to disobey.!® is punished either by direct penalties or by considering an act or
contract void. Permissive laws are those which may be deviated
A subdivision of divine law is canon law, the law of the medi- from, if the individual so desires.2°
eval Roman Catholic Church, which, as revised, is still enforced by
the Catholic Church today.
F. Law, its nature.
2) Positive Law According to former Court of Appeals Justice Crisolito Pascual
Positive law consists of rules of conduct, promulgated by com- the foremost authority on the nature and philosophy of the iaw 7
petent authority that regulate human relations. In its particular the Philippines, the origin, development and function of law may
strict term, positive law means a statute created by the legislature be separated into various schools as follows:
of a State. Example is the New Civil Code of the Philippines of (a) The historical school of jurisprudence which appraises
1950. the law in the context of the common consciousness of a group of
Positive or human law is in turn divided into two main classes people. The question this juristic school seeks to answer is, “Where
in accordance with the scope or content of the law: general or did the law come from and how did it evolve?”
public law, and individual or private law. General or public laws (b) The teleological school of jurisprudence which considers
govern the relations of the individual with the state or community the nature of law in terms of the moral and rational nature of
as a whole. Individual or private laws regulate the relations of the human beings. The question emphasized by this school is, “What is
members of a community with one another. the ¢elos or end of the law?”
"qd,
18Ramirez & Sison, Introduction to Philippine Law, Manila, Philaw Publish- Tolentino, op. cit., pp. 3-4.
ing, p. 5. 20Paras, op. cit., p. 4.
(c) The positive school of jurisprudence which considers the

of growth of a legal system. Historical jurists have tended to regard
law as a conscious rule or norm of the State backed by its authority custom as the foundation upon which the law was originally based.”3
and force. For this juristic school the problem is, “What is the
distinctive structure and content of the law?” This juristic school was founded by Friedrich Karl Von Savigny
(1779-1861), a German jurisprudent and legal historian, who in
(d) The functional school of jurisprudence which considers
1814 published his great work entitled, The Vocation of Our Times
the law in terms of the satisfaction of the conflicting or overlapping
for Legislation and Jurisprudence.**
claims, demands, and expectations of the people with the minimum
of friction and waste. The question which this juristic school raises For the historical jurists, the problem of the nature of the law
is, “How does the law work in weighing the competing individual cannot be understood properly without reference to, or appreciation
and public interests in light of the jural postulates, social interests of, these historico-social conditions in which it has grown. For them,
and national policies? What is the function of the law?” the law could not have thrived except in this environment.
(e) The realist school which takes the law on the basis of the Von Savigny called custom the real producer of sound law.
on-going experience s of the people. This juristic school asks the Law, according to him, is a spontaneous emanation from the life
question, “Is the law verifiable in the practical life of the people?” and spirit of a people.
(f) The policy science school which considers the law in rela- The historical school introduced the philosophy of the Folk-
tion to the degree of success of a community in achieving certain Soul to the concept of the nature of law. The law thus constitutes
socio-legal values. The question this juristic school raises is, “What the soul or spirit of the people which permeates the members of the
is the basis and the limits of an effective global, regional and na- community in common. This folk soul or folk spirit is called the
tional legal orders in relation to the social values?” volksgeist. To put the same thing in another way, the historical
school regards law in direct relationship with the life or national
Another school of thought on the nature of the law is the
development of the people.”
Marxist-Leninist school which considers law as the socio-class regu-
lator expressing the state will raised to the level of law, of the In the words of Sir Henry Sumner Maine, the acknowledged
economically dominant class. It performs a protective function leader of the historical jurisprudence in England, the law is the
against counter-revolutionaries, hooligans and other disruptive ele- product “of the huge mass of opinions, beliefs, superstitions, and
ments. The Marxist-Leninist view was further developed by Evgeny prejudices of a people produced by institutions of human nature
B. Pashukanis, who believes that the economic organization of capi- reacting one upon another.”6
talist society is determined by commodity exchange and that law Having achieved a language, the people began to articulate
constitute a kind of “superstructure” reflecting the economic or- itself by means of opinions, beliefs, longings, usages, traditions,
ganization of society. This school maintains that in the finally idiosyncrasies, arts, customs, and even superstitions. This mass of
achieved state of communism, law and the state will wither away.” oblutiacs constitutes the traditional sources of the jural substance
What does law protect? or materials of the people. In the course of time, these oblutiacs
were expressed in laws, rules and regulations.?’ As Justice Cardozo
1. The Historical View
The historical school or jurisprudence examines the manner
23William Seal Carpenter, Foundations of Modern Jurisprudence, New York,

21pascual, Introduction to Legal Philosophy, Manila, Premium Printing Press, Appleton-Century-Crofts, Inc., 1958, p. 21.
1994, pp. 5-6. . 24Pascual, op. cit., pp. 71-73.
22ygeny B. Pashukanis, Law and Marxism, Great Britain, Pluto Press, 1989, 25Id., op. cit., p. 71.
pp. 12-19. ?8Id., p. 74.
27Id., p. 76.
of the Supreme Court of the United States said, “history built up corruptive tendencies of the physical senses. Thus, unless a person
the system and the law that went with it.28 is guided by the criterion of the absolute good, his moral scruples
would not be tenable and it is very likely that he would end up
In the study of the nature of the law, historical jurisprudence
acting wrongly. Therefore, for Socrates, the master virtue is knowl-
has applied the concept of the foul-soul or diwa of a people. The
edge of the absolute good.®°
volksgeist or diwa of a people provides a means to fathom the legal
history or evolution of the law of the people. Historical evolution Plato utilized a great deal of his master’s thesis. But Plato
serves very well as a guide to Jegal thought. The historical doctrine argued for a rational principle of rectitude and just dealing of men
of the nature of the law is also valuable and significant to policy with one another. Since man is an intelligent and sensible being,
planners and government functionaries. They may draw on the reason provides him with the means or opportunity of discerning
volksgeist or diwa of the people for legal precepts and legal stand- what is right and what is wrong.*! In The Republic, which ap-
ards as well as positive rules of conduct.?9 peared in the most critical period of the Athenean republic, Plato
identified justice as the universal virtue, the single greatest good,
2. The Teleological or Philosophical View and injustice as the universal vice, the single greatest evil. He
considered the law as an instrument of social control with the
The thrust of this school is basically teleological for it views
paramount aim of discovering, maintaining or administering jus-
the law in terms of its basis and fulfillment of its purposes or ends.
tice and morality.32
The influence of natural law philosophy can never be escaped, at
least, insofar as the teleologists are concerned. The teleological Plato’s doctrine is that justice is a part of human virtue and is
view of the nature of law therefore is properly the broad natural therefore synonymous with morality. Justice is at once a part of
law idea. It is based on the emphasis of justice and ethics and human virtue and the bond which joins men together in society. It
closely related to the problem of the ideal end of the law. is an identical quality which makes man good and which makes
him social.34
The philosophers of ancient Greece, who first worked on the
problem of the nature of law, felt the need for an unassailable On the other hand, Aristotle felt that Plato’s rational principle
starting point in the development of their concept of the law. They of rectitude as the solution to the corroding hostility between appe-
believed they had found it in the moral nature or good faith of man. tite and spirit is as extreme as Socrates’ knowledge of the absolute
Thus, to the ancient Greeks, the inquiry was for the relationship of good as the governing rule in human conduct. Thus, while Aristotle
law to justice and ethics which, by them, cannot be ignored. adopted Plato’s rational knowledge, he advanced the idea of fair
equality as the standard of morality and good faith. This is to say
Socrates, Plato and Aristotle were of the belief that man has a
that Aristotle settled for what is fair and equal as the criterion for
basic understanding of right and wrong and that this virtue is
the validity of human conduct.®4
related to the standard or measure of the good.
In his Ethica Nicomachea, Aristotle expounded a narrower
Socrates, in particular, postulated the ethical tenet that no
concept of justice as the core of his legal philosophy. What he did
man is voluntarily bad or evil, notwithstanding that quite often
was to bring Plato’s concept of ethical justice to the level of human
man is ruled by his base appetites resulting in failure to do the
nature or disposition. The core of Aristotle’s idea is that justice
right or avoid the wrong. According to Socrates, one who knows
must be understood in the sense of what is fair and equal. Thus,
that a thing is right or that a thing is good will generally do or
choose to do that thing. It is, however, in the process of realizing
what is right that one often stumbles and falls because of the
307d, pp. 102-103.
311q., pp. 104-105.
821d. p. 105.
28Id., p. 91. 33Carpenter, op. cit., pp. 29-30.
29Td., pp. 94-95. 34Pascual, op. cit., pp. 106-107.
a
for Aristotle, an act is justified if and when it is done with “fair ral necessity, but man discovers the law of nature through his
equality” and thus capable of being done also by others.*° reason. For those creatures who have received the gift of reason
from nature, Cicero remarks, have also received right reason, and
\ Law itself had its end and to Aristotle, it was clear that its
therefore they have also received the gift of law, which is right
\ task was to make men good. This was deduced from his premise reason applied to command and prohibition. And if they have re-
that the state does not exist for the sake of life only, but for the ceived law, they have received justice also. Now, all men have re-
\ sake of the good life. But what is goodness? Everyone agrees, Aris- ceived reason, therefore, all men have received justice.*°
totle says, that the highest good is happiness and well-being. And
he defines happiness as an exercise of the powers of life in accord- Justice is defined by Cicero as that sentiment which assigns
\ ' ance with virtue throughout a whole lifetime.*® to each his own and maintains with generosity and equity human
solidarity and alliance. It has its source in nature and as a matter
\ As regards the Roman influence on the philosophical school, it of fact, we are born for justice..The most foolish notion of all is the
can be said that much of Roman culture was borrowed from the belief that everything is just which is found in the laws of nations.
Greeks. Marcus Tullius Cicero, a Roman lawyer, magistrate, states- A law to the effect that a dictator might put to death with impunity
man, and a jurisprudent of great eminence, learned his law from any citizen he wished, even without a trial, is obviously not a just
Quintus Mucius Scaevola II, a sincere adherent of the Stoic school law. Justice is one; it binds all human society, and is based on one
of philosophy. Cicero absorbed the Greek idea of the universality of law, which is right reason applied to command and prohibition.
\ the natural law and brought it into contact with the Roman legal Whoever does not know this law, whether it has been recorded in
\ system.°?? writing anywhere or not, is without justice.*!
In his De Republica, Cicero postulated the activist idea of law. The Roman lawyers who followed Cicero in the second and
\ While accepting the Greek concept that the law is the product of third centuries of the Christian era did not dwell at length on the
\ reason which is in agreement with the postulates of natural law, meaning of justice. Ulpian, it is true, defined justice as “the fixed
\ Cicero believed that the law exacts duty and compliance by means and perpetual will to give to everyone his due.” This definition was
of commands, not by its reasonableness alone, and prevents wrong- repeated constantly throughout the Middle Ages and was set forth
doing by means of prohibitions. Thus, for Cicero, compulsion is an in the Corpus Juris. Justice regarded at all times as a quality of
essential element of the law.** will or purpose. But it was not until the rise of the Church Fathers
But Cicero did not ignore the role of ethics in the legal order. that justice became identified with the will of God.”
In his De Legibus, Cicero posited the view that man is born for the In his Institutiones, on which much of Justinian’s Institutes of
supreme virtue of justice, for “if they have received the gift of law, Roman Law was based, Gaius, like Cicero, advanced the view that
they have received justice also.” An individual cannot violate his some rules are perennial since they are based on the natural law
own sense of justice.°9 while others are not since they are in derogation or perversion of
True law, he said, “is right reason in agreement with nature; its postulates. For Gaius, only the former comprise the law. In
it is of universal application; unchanging and everlasting; it sum- identifying this aberration in the legal order of a politically organ-
mons to duty by its commands, and averts from wrongdoing by its ized society, Gaius advocated for a continuous effort of removing
prohibitions. Inanimate things are bound to obey this law by natu- harmful and useless r f law. In another way of putting it, laws
must be re- ned by lawmaking bodies every once in a while.
This procedure would then provide the means whereby any abnor-
357d., p. 107.
36Huntington Cairns, Legal Philosophy from Plato to Hegel, Baltimore, The
John Hopkins Press, 1949, p. 96.
37Pascual, op. cit., pp. 109-1 40Carpenter, op. cit., p. 31.
387d,, pp. 110-111. 4ICairns, op. cit., p. 144.
42Carpenter, op. cit., p. 32.
mality in the legal order could be adjusted to comply with the end rational arrangement ‘and distribution of His Divine Providence.
and purpose of the law.** Under this concept, the loyalty of the people to the legal order is
held to be in accordance with the will or command of God, of which
St. Augustine, whose active life came at the close of the fourth the Church was considered as the authoritative interpreter and
century and the beginning of the fifth century, was the most impor- final arbiter.*6
tant of the Church Fathers. His life was spent largely in the town
of Hippo in North Africa, where he became a bishop and struggled St. Thomas Aquinas learned from the Greeks the importance
to advance the Christian religion. It was here that he wrote his of the precepts of the natural law doctrine in the formulation of
City of God, in which he restates from the Christian point of view positive or enacted laws. In his Summa Theologica, St. Thomas
the ancient idea that man is a citizen of two cities, the city of his Aquinas introduced a combination of right reason, on the one hand,
birth and the city of God. Man’s nature is two-fold; he is spirit and and justice and equity, on the other, infusing it with the profound
body, and therefore at once a citizen of this world and of the heav- observation that the first principle of any concept is its governing
enly city.*4 rule of human conduct. Therefore, when he considered the law as
the product of right reason he was moving towards a very high
Justice in the thought of St. Augustine is incomplete if it is estimate of the law. On this idealistic evaluation, St. Thomas
not based upon Christian law as well as the law of nature. What Aquinas believed that the law is an ordinance of right reason for
St. Augustine undoubtedly meant was that justice, while essential the common good and happiness, laid down by him who has the
to bind a people together in a state, cannot be wholly achieved care and welfare of the whole community, and made public by those
where the people do not worship the true God. The importance of in authority to those who are subject to it.47
St. Augustine’s definition of justice lies in the conception of a single
universal order which transcends the state. Both Plato and St. In formulating his legal philosophy, St. Thomas Aquinas ad-
Augustine regarded justice as conformity to order; a society which vanced the proposition that the public welfare or the common hap-
did not maintain order though rules of law was inconceivable to the piness is the first concern of the people since anything concerns a
Greek as well as to the Christian. But Plato conceived man to person to whom the end or purpose belongs. To this end, therefore,
belong to no society wider than the state, and subject to no law the law is ordained for the sake of lawness or the common good and
beyond that of the state. To him, the individual achieves justice happiness. To put it in another way, the happiness and good of the
when he takes his proper place in society. A just man will fulfil! his people should be the first and foremost concern of the law.*8
appointed purpose when he conforms to the rules of the state of
which he is a member. St. Augustine, on the other hand, saw man 3. The Analytical or Positivist View
as a member of a universal and eternal society and subject to its John Austin, the nineteenth-century English moral and legal
universal and eternal law. philosopher who gave the theory of legal positivism its first system-
The rise of Christianity during the twelfth century provided atic statement, argued that legal philosophy Gurisprudence) has
the theological foundation or basis, as supplement to the teleologi- two important but quite different tasks and that a failure to keep
cal or philosophical view, for the concept of the nature of law. these two tasks separately produces both intellectual and moral
confusion. He distinguished between analytical jurisprudence and
The scholastic thinkers, notably St. Thomas Aquinas thought
normative jurisprudence. Analytical jurisprudence is concerned with
of the law as an institution ordained by God. Here, the Greco-
the analysis of the concepts and structures of “law as it is.” Norma-
Roman notion of (impersonal) nature as the ultimate source of laws
tive jurisprudence involves the evaluative criticism of law and thus
was substituted by the power of God who governs all things by the
43Pascual, op. cit., p. 115. 46Pascual, op. cit., p. 115-117.

44Carpenter, op. cit., p. 33. 47Id., pp. 117-119.
41d., p. 34. 487d.
account of law and maintains that all laws are commands, even
represents claims about “law as it ought to be.” That Austin draws when they do not take a form that appears imperative in nature.
this distinction clearly shows that his whole conception of legal
philosophy involves a repudiation of natural law theory. Austin’s What is a command? Austin defines a command in terms of
contributions to normative jurisprudence mainly involve some in- two concepts: (1) signification of desire, and (2) ability to inflict evil
teresting attempts to apply the moral theory of utilitarianism to or harm for the non-satisfaction of a desire. To command people to
legal issues. The contributions for which he is most famous, how- do X is simply this: to express to them my desire that they do X
ever, are in the area of analytical jurisprudence particularly his and to make it clear to them that it is within my power to inflict
theory of the nature of law itself, his analysis of the concept of law. some evil or harm on them if they fail to do X. Austin calls this
(“Law as it is” is called positive law because it is set or posited or threatened and possible evil a sanction. A person so commanded is,
given its position by human authority, hence the name “Legal Posi- according to Austin, bound, obliged, or under a duty to do what is
tivism.”)*9 commanded.*?
The perception of this particular school of jurisprudence about 4, The Functional or Sociological View
the nature of the law is that it is objective, that is to say, con-
sciously made or uttered within the bounds of the different branches Although Charles Louis de Montesquieu (1689-1755) is better
of the government, and therefore, legally authoritative and com- known to students of law as the author of the principle of separa-
manding.*° tion of powers among the co-equal branches of government, he also
discoursed on the development of law in the social environment in
Austin advocated the separation of law and morals. The tel- which it grows, including the morality, manners, politics, and cus-
eologists’ concept that the norms of moral and natural laws are toms of the people. In stressing the relation of law to changing
inherent in the concept of law is disputed by the positivist school.®! social conditions, Montesquieu can be said to have laid down the
The school regards law as the totality of jural rules or princi- foundation of functional jurisprudence.
ples consciously set by men in the state as political superiors, to The sociologist Ludwig Gumplowicz (1838-1909) was among
men as political subjects and enforced by material sanctions. the first to advocate the use of the interests of society in the solu-
The law is something positive, existing as fact or reality, inde- tion of the problems of human relations. Montesquieu had expounded
pendent of the idea of justice and ethics. It is, in other words, the the view that the law is a living thing and that its development is
intimation or expression of the wish of the State to the political interrelated with the social environment in which it grows includ-
subjects regarding their conduct or volition. It is a wish expressed ing the morality, manners, politics, religion, and customs of the
through the different organs of the State. The law is thus the will people. He stressed the relation which law must have to these
of the conscious power of the political State with intent to establish changing societal conditions.**
a rule of conduct, and emanates solely from it. The law in this view The functional school takes for its authoritative starting point
possesses three essential attributes, namely: conscious creation, all the social phenomena or facts in relation to their actual effects
generality, and authoritative enforcement.®2 in the community. For functional jurisprudence, the binding force
Austin’s particular theory is often called “the command theory of law is based on the social interests.
of law” because he makes the concept of command central in his In the ordering of group interests, the emphasis is placed on
what the law actually does in the community or social life, and
having found that, how it can do it better. In the legal ordering, the
49Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law, Boulder, San

Francisco and London, Westview Press, 1990, p. 19.
50Pascual, op. cif., p. 168. 53Murphy and Coleman, op. cit., pp. 19-20.
5lld,, p. 169. 54Pascual, op. cit., pp. 197-198.
527d., pp. 189-191.
21
PART I — LAW IN GENERAL
and “public inter-

ety.” which might be called “ethical interests”;
preponderating factor or value therefore is the welfare of the very a politi cal or organ ized society.®®
ests,” resulting from life in
society ordered. The social welfare should therefore dominate the
highly specialized
promotion of group functions. It is the factor that sets the course, Functional jurisprudence views law as “a a
on in accordance with
direction and extent of the process of attaining social solidarity or (coercive) form of social control, carried
judicial and an adminis-
cohesion.® body of authoritative precepts applied in a
anism for the engi-
trative process.” As such, law is a social mech
On the basis of the functional approach and the continuous g interests. The
neering and adjustment of conflicting or overlappin
conflict of group interests in the community, the law is more than engaged in the process of reconciling, regulat-
norms; it is, in fact, the con- law is continuously
just a self-contained set of abstract claims and de-
ing or settling conflicting or overlapping wants,
tinuous process of balancing or compromising conflicting or collid- er of the social
mands with an eye to secure the maximum numb
ing individual, religious, political, and community interests, whereby And this is ac-
interests with the minimum of friction and waste.
the social welfare or the good of the collective body is achieved with
complished by the applicatior of “social engineering.”
the minimum of social friction.
Dean Roscoe Pound calls the process of balancing or compro- 5. The Legal Realist or Pragmatic View
mising of conflicting interests “social engineering.” The object or The term “legal realism” is used to describe
the experiential
end of social engineering is the social welfare.°® on the traditional as-
or empirical outlook of this juristic school
are those, however,
In 1906, in an address to the American Bar Association on sumptions on law and the legal order. There
This is due to the
“Causes of Popular Dissatisfaction with the Administration of Jus- who prefer the name “pragmatic jurisprudence.”
Charles Pierce, who
tice,” he startled the entire bar with an original, highly critical, influence of the pragmatism of the scientist
am James, wine
and constructive analysis of the American legal system, His ad- first introduced it in 1878, the psychologist Willi
the educator John Dewey.
dress shattered the complacency of many leaders of the bar, jurists brought it forward again in 1898, and
fact that it was
and professors of law, and started a movement in the United States The use of this term is further strengthened by the
who greatl y influ enced the legal
toward what is called “sociological jurisprudence,” which, under the the philosopher William James
s, Jr., one of the foreb ears of
constant leadership of Pound himself, has made enormous head- philosophy of Oliver Wendell Holme
to finall y break with histori-
way and has radically affected, sometimes directly and sometimes this juristic movement, which led him
indirectly, the thinking of American jurists, judges, and lawyers.*? cal jurisprudence.®
implies, takes for
An important part of his own thesis is the “theory of inter- The realistic school, as the term itself well
experience. In considering
ests,” first stated in 1921, that the law must determine between its starting point all of reality or actual
rn is not so much
conflicting sets of interests. Whether that produces justice in any the realist concept of the nature of law, the conce
with particular or sub-
abstract sense is unimportant, for the law must find a way to with legal rules, theories, or categories nor set or
are fixed factors previously
enable people to live together. Some of these interests, Pound points stantial justice because they
out, are protected by the State and thus “rights” arise, but inter- determined.
ests do not always result in rights. Constant reconciliation and pt in terms of
According to the positivists, the central conce
adjustment are necessary between the interests of individuals. And of a rule. H.L.A . Hart (along
which law is to be understood is that
there are other interests also to be taken into consideration: the as Kelse n) adopt s what Ronald
with many earlier positivists such
social interests, or interests “involved in social life in civilized soci- — the view that law is best
Dworkin has called “the mode of rules”
58Id., p. 488.
55]d., pp. 202-203. 59Pascual, op. cit., pp. 207-209.
567d, pp. 204-205. 607d., p. 284.
487.
57Wormser, The Law, New York, Simon and Schuster, 1949, p.
understood as a system of rules. Though this view has a certain

myth that law can be entirely predictable. The law, for Judge Frank,
undeniable appeal to those whose perspective on the law is aca-
consists of judicial decisions in which there can be no certainty,
demic (¢.g., philosophy and law professors), it has often seemed
because a judge’s decisions are the outcome of his entire life his-
misguided to many lawyers, judges, and social scientists doing em-
tory. Prejudices of which the judge may likely be unaware enter
pirical research on legal behavior — all persons whose contact with
the actual workings of legal systems into the making of every opinion. The judge is expected to dispose
is on a day-to-day basis. Ear-
lier in this century, a group of Americans (loosely of litigation, not to formulate rules and principles. The law is there-
led and inspired fore the individual decision and not a system of general rules and
by Justice Oliver Wendell Holmes, Jerome
Frank, and Karl principles. A science of jurisprudence, if it is to exist at all, must be
Llewellyn) developed something of a movement
or school in juris- constructed of other materials than the precedents and principles
prudence called “Legal Realism,”
of the jurists which Judge Frank has consigned to the dustbin.®
Declaring that “the life of the law has not been
logic, it has
been experience,” Holmes ridiculed the idea that 6. The Policy Science View
legal cases are
best understood as the application of rules. If this
were so, then The policy oriented approach in jurisprudence was launched
why do so many cases get litigated (i.e., why don’t
people just apply at Yale University by Professor Harold D. Lasswell and Professor
the rules the way they do in chess?) and why is
it that, in most Myres S. McDougal. They enunciated the general idea of this juris-
cases that do get litigated, the outcome could really
go either way, tic approach in their work, Legal Education and Public Policy: Pro-
something one would not expect for genuinely
rule-governed fessional Training in the Public Interest.§4
behavior? Perhaps, suggested Holmes, this is becaus
e the law is
not a system of rules waiting there in a strongbox Unlike the theories of law heretofore considered, the jurispru-
to be taken out
by judges and mechanically applied to cases as dence of policy science is aimed at the global, regional and national
they arise. The role
of the judge is actually much more discretionary levels of legal orders. The scholars belonging to the policy science
and creative than
this. Since the “rules” allow the judge considerable school of jurisprudence advanced the view that the direct and alter-
free play, he or
she can in fact decide the case in a variety of ways, native solutions to the problem of easing global, regional and na-
and the way
that is in fact adopted will be more of a function tional tensions which affects human relationships must move away
of such factors as
the judge’s psychological temperament, social class, from the value-free approach of legal positivism. It is the view of
and values than
of anything written down and called “rules.” It is time, in short, for this juristic school that the application of social values in the glo-
more realism about the law, here “realism” is under bal, regional and national levels of public orders cannot be ignored.
stood to mean a
scientific examination of why decisions are in fact reached rather By “policy” is meant a settled guideline, strategy or program adopted
than some academic exercise about how decisions could be con- by the legal order. And the term “policy science” means the disci-
structed as logical consequences of rules. Think pline concerned with the formation, clarification and realization of
of the law, said
Holmes, as “prediction of what courts wil] decide social values. The jurisprudence of policy science emphasizes the
,” and base your
predictions of what the courts will decide, said rights to life, liberty, equality, property, education, security, and the
Frank, on a good
psychoanalytic understanding of judicial temperamen free exercise of the mind.
t and not on
some notion of “the rules.”62
This emphasis highlights the fact that in many places, the
Jerome Frank, a leader among the realists, in a brilliant book efforts in behalf of human rights and freedoms have been stifled.
entitled “Law and the Modern Mind” contrasts appearance and The policy science perspective views the law as an instrument for
reality in law. Borrowing from the techniques of psychoanalysis the achievement of the social values which is the professed end of a
and applying these to the law, Judge Frank seeks to banish the democratic policy. As stated previously, the jurisprudence of policy
®1Murphy and Coleman, op. cit., p. 33.

627. ®3Carpenter, op. cit., p. 221.
Pascual, op. cit., pp. 403-404.
science emphasizes the view that the law would be imperfect to the Lenin also saw the social significance of law and legality in
extent that it ignores the social values. The policy oriented ap- the fact that they perform a protective function. In the Soviet Gov-
proach is thus an advocacy of social values.® ernment’s address “To the Population,” which he wrote in 1917,
Lenin speaks not about the struggle against drunkards, hooligans
The policy science school of jurisprudence posits the view that
and counter-revolutionaries in general, but about the need to sup-
the law can truly be an instrument of global, regional and national
press the attempts at anarchy made by these people, about the
control when “it is committed to the complete achievement to the
need for the strictest revolutionary law and order. The struggle
social values that constitute the professed ends of democratic socie-
against counter-revolutionaries, bribe-takers, embezzlers, hooligans
ties. This means that the law is an advocacy of consistent, compat-
and disruptive elements was seen by Lenin as being the struggle
ible and principled policies, legislation and decisions on the basis of
for the strictest socialist legality, so this is why he attached so
the social values. From the perspective then of this juristic school,
much significance to organizing the Soviet judicial system.®
the law is a vital instrument for ordering conduct through the
formation, clarification and realization of the social values where It is quite indicative that Lenin considered the protective func-
“the patterns of authority are conjoined with the patterns of con- tion of law in socialist society in unity with the need for compre-
trol.”66 hensive protection of the democratic rights and freedom of the work-
ing people.
7 The Marxist-Leninist School
The socio-class essence of law also determines its qualities.
From the positions of Marxist-Leninist theory, law is the socio- Since, owing to its class essence, law is called on to be a powerful
class regulator expressing the state will, raised to the level of law, socio-class force, it is characterised by such qualities as: its gener-
of the economically dominant class. This will is conditioned by the ally mandatory normative nature; rigorous formal definitiveness; a
material conditions of the life of this class and consists of a system high degree of state support, including, if necessary, by state coer-
of generally binding, formally definite norms. In accordance with cion. Hence, also, come the important regulatory qualities of law, in
the existing system of norms, a complex of legal means and mecha- particular its universal character, ability to introduce uniformity
nisms for regulation takes shape that is called on to express and into social relations, to be a stabilizing social factor and, at the
ensure the implementation of the interests of the dominant class, same time to achieve, by legal means, the tasks outlined by the
the deep-running requirements of the given social system, its ide- lawmaker and secured in the juridical norms of programes of
als and values.®? behavior.
This strict juridical concept of law is framed from the Marx’s The Marxist-Leninist thought was further developed by So-
and Engel’s concept of law as a class phenomenon and from Lenin’s viet writer, Eugene Pashukanis.
idea of law as a regulator. Moreover, the main thing that expresses
Pashukanis’ theory became known as the Commodity Exchange
and characterizes the features and specifics of law is its class-state
Theory of Law, though it might better have been called the Com-
nature.
modity Exchange Theory of Legal and Moral Duty. The theory was
Lenin connected the very existence of law under socialism built on two pillars of Marxist thought: first, in the organization of
with the fact that “it persists in the capacity of regulator (deter- society the economic factor is paramount; legal and moral princi-
mining factor) in the distribution of products and the allotment of ples and institutions therefore constitute a kind of “superstructure”
labor among the members of society.” reflecting the economic organization of society; second, in the fi-
nally achieved state of communism, law and the state will wither
away.
85Jq., pp. 404-410.
66Iq., pp. 461-462.
®7Sergie Alexeyev, Socialism and Law, Moscow, Progress Publishers, 1990, p.
53. §87d., pp. 11-12.
In its main outlines Pashukanis’ argument was quite simple.

The economic organization of capitalist society is determined by
exchange. It follows therefore that the legal and political institu-
tions of such a society will be permeated with notions derived from
exchange. So in bourgeois criminal law, we find a table of crimes
PART Il — THE WORLD’S LEGAL
with a schedule of appropriate punishments or expiations — a kind SYSTEMS
of price list for misbehavior. In private law, the dominant figure is
that of the legal subject who owes duties, possess rights, and is
granted the legal power to settle his disputes with others by agree-
ment. The legal subject is thus the legal counterpart of the eco-
A. The Legal Systems of the World.
nomic traders. With communism, economic exchange will be abol-
ished, as will all the legal and political conceptions that derive Throughout all times and places in the world’s history, there
from it. In particular, communism will know nothing of legal rights emerged only few peoples who have developed a well-defined, or-
and duties. ganized and continuous body of legal ideas and methods, reaching
the dignity and solidarity of a legal system.
The same analysis was extended to the field of morals. With
achieved communism, morality as it is usually understood (that is, These well-developed legal systems are classified into two:
as the morality of duty) will cease to perform any function. How far first, those/based on certain ethnic, cultural groups of people, and
Pashukanis carried his theory may be seen in his attitude toward second, those based on religion. Among those in the first category
Kant. Kant’s view that we should treat our fellow man as an end, in its chronological order are the Egyptian, Mesopotamian, He-
and not merely as a means, is usually regarded as one of the brew, Chinese, Hindu, Greek, Roman, Celtic, Slavic, Germanic, Japa-
noblest expressions of his philosophy. For Pashukanis, it was merely nese, and Anglo-American. The second category is composed prima-
the reflection of a market economy, for it is only by entering rela- rily of the Catholic (Papal) legal system (or Canon law), and the
tionships of exchange that we are able to make others serve our Mohammedan legal system.
ends at the same time we serve theirs. Indeed, any kind of reci-
Of those in the first category, som@é are gone; some remain.
procity, however, circuitously it may operate through social forms,
The Anglo-American, and the)Roman today cover the greater part
casts men in a dual role, as ends in themselves and as means to
of the world’s population. The Egyptian and the Mesopotamian, the
the ends of others. Since there is no clear stop or breaking point
older ones, have long disappeared. The Hindu survives by toler-
between implicit reciprocity and explicit exchange, Pashukanis ends
ance under another dominant political system. Of the oldest, the
with the conclusion that when communism is finally achieved all
Chinese alone survives in independence.”°
moral duties will disappear.
In the second category, the Catholic or Canon law system still
These views proved too strong (or at least too inconvenient)
exists as the law for the members of the universal Roman Catholic
for Pashukanis’ contemporaries in Stalinist Russia, and he was
Church. The Mohammedan system not only governs the spiritual
liquidated in 1937. In justice to his memory, it should be said that
life of its members but has been incorporated by many Islamic
his theories have strong roots in the teachings of the communist
states into their official legal system.
forefathers. They obviously derived support from the twin doctrines
of the superstructure and of the future withering away of state and
law.69
John Henry Wigmore, A Panorama of the World’s Legal Systems, Vol. 1, St.
Paul, West Publishing Co., 1928, pp. 3-5.
6°Lon L. Fuller, The Morality of Law, London, Yale University Press, 1964, pp.
24-26. 27
28 INTRODUCTION TO LAW PART II — THE WORLD’S LEGAL SYSTEMS 29
1) Egyptian legal system is known to thee like him who is unknown to thee, and him
who is near to... like him who is far... An official who does this
The Egyptian legal system is traced back to beyond 4000 B.C.
then shall flourish greatly in the place.”
Its location at the Valley of the Nile brought it into contact with all
the great primitive race-stocks — as well of Africa as of Asia and “Show forth the fear of thee; let one be afraid of thee, for
Europe; and to all of them were transmitted some of its legal ideas.”! a prince is a prince of whom is afraid. Lo, the true dread of a
According to the Greek historian-traveler Diodorus, Solon, the fa- prince is to do justice.”
mous Greek lawgiver, visited Egypt for the purpose of studying its
laws.”2 Another king, already mentioned, Harmhab, instructed the
judges appointed by him, thus: “You shall not take money from one
From the emergence of the Egyptian legal system till its dis- party and decide without hearing the other; for how could you sit
appearance during the reign of Cleopatra, Egypt had been, through- as judges upon other men’s deeds when one among you is himself
out, a kingdom, in which the monarch was constitutionally the sole committing an offense against justice? The penalty for such an
supreme ruler. He ruled according to law; but he was its autocratic offense shall be death. And I, the king, have decreed this, that the
spokesman. In theory of law, every yard of land belonged to him, laws of Egypt may be bettered and that suitors may not be op-
every man belonged to him, alive’or dead, for none could even be pressed. For I, the king, have in memory the acts of oppression
buried without the king’s assent. All law and all justice proceeded which have been done in the land.”
from him. In the modern way of describing the situation, the pre-
rogative for exercising the judicial, administrative and legislative The oldest court record in the world is found in an Egyptian
functions was vested in the monarch.”? papyrus, preserved in the hieretic script, dating back from 2500
B.C. The record says:
In early Egypt, we find the central royal court in which the
king and his supreme judges administered justice as the focus of “The party Sebekotep alleges that one Usser, now de-
government. The royal court wasicomposed of thirty supreme judges, ceased, father of the other party Thau, made the said Sebekotep
and was presided over by the King’s chief justice who held daily to be guardian of his, the said Usser’s wife and children, and
sitting in the palace as the Pharaoh’s deputy. Originally, the office to that end delivered all his property to the said Sebekotep, to
of prime minister and of chief judge were separate, but soon after, be applied to the use of the said Usser’s family whether or not
and till the end of the kingdom, they were found merged, and the the property increased or decreased. But the party Thau de-
title “chief judge” signified always the king’s chief minister. There nies that his father ever made any such conveyance.”
were provincial courts, presided over by administrative officials,
and were under the Central Court. “If the said Sebekotep produces credible witnesses who
will make oath that the said Usser did in their presence de-
The following extracts from the speech of instructions pur- liver the property on the terms set forth in the said Sebekotep’s
porting to have been pronounced by King Thutmose III as long ago written pleading then the property is to remain in his posses-
as 1500 B.C. in appointing Bekhmire to the post of chief judge over sion. But if he does not produce such witnesses, then none of
the kingdom could well serve as canons of judicial ethics even in the said Usser’s property shall remain in Sebekotep’s posses-
modern times: sion, but shall be delivered to the said Thau, son of Usser.””*
“It is an abomination of god to show partiality. This is The Egyptian king’s philosophy of the scope of his attribute of
the teaching: thou shalt act alike to all, shalt regard him who justice may be gleaned from a passage put in the mouth of Ramses
II, in his great survey or record of the kingdom’s wealth. At one
71Iq,, pp. 11-12.

72Diodorus’ History (Booth Trans; 1814), Vol. 1, p. 72.
Wigmore, op. cit., p. 18. 74Wigmore, op. cit., pp. 32-34.
paragraph in this record, the king recites his achievements as a 2) Mesopotamian legal system
just ruler:
The legal system of Mesopotamia, the land of the two Rivers
“T planted the whole land with trees and green things, — the Euphrates and the Tigris — emerged in history by perhaps
and made the people to dwell in their shade. I made the land 4000 years before Christ. It endured amidst successive waves of
safe, so that a lone woman could go on her way freely, and conquest from east, north, and west, absorbing one after another. It
none would molest her. I rescued the humble from their op- lost its racial independence under the Persians about 500 years
pressors. I made every man safe in his home. I preserved the before Christ, and disappeared under the Greeks, about 100 years
lives of those who sought my court of justice. The people were before Christ. The civilization of Mesopotamia was centered about
well content under my rule.””5 Babylon in the southern portion known as Chaldea and in Assyria
in the north.78
The king was also, in theory, the sole legislator. The earliest
human lawgiver in Egyptian tradition was named Menes (or, Mna); The king was the foundatidn of justice, receiving the law from
his date in history was as early as 3200 B.C. Some of the royal divine guidance. But under King Hammurabi (about 2100 B.C.),
legislators’ names are preserved in fame, for the codes which they his deputized administration of justice passed from the hands of
promulgated. The greatest was Harmhab, who lived about 1100 the royal priest-class, in the temples, to a body of royal secular
B.C.%6 judges, sitting commonly at the great gate and market place of the
city.”?
One of the earliest though not the very first, recorded treaty,
was that entered into between the Egyptian King Ramses II with In the Mesopotamian system, as in the Egyptian and Hebrew,
the Hittite King Hattushilish III about 1272 B.C. Remarkably the king was the lawgiver, who was believed to have received all
enough, it provided for mutual assistance not only in case of exter- the laws of his people from a deity. The sun-god Shamash was the
nal attack but also in case of internal revolutions, and even went so god of Law, whose children were Justice and Right. The first his-
far as to provide for the extradition of political offenders. Its provi- torically known Mesopotamian lawgiver was the Sumerian
sions about extradition reveal the arrival of the Egyptians at the Urukagina of Lagash, who reigned in the first quarter of the third
practical use of some of the standard concepts of modern jurispru- millennium, and another was Gudea the Just, who lived some three
dence.”” centuries later.®°
The native Egyptian legal system passed through many phases The legislation of Babylonia has already been found in large
and survived under several foreign dynasties. But it began to be part. One of the earliest peoples occupying Babylonia was the
undermined in the eighth century before Christ by civil war then Sumerians, a non-Semitic people; and a few years ago, an Ameri-
by conquests of invaders from Assyria, Persia and Greece. Finally, can scholar discovered and deciphered a fragment of one of their
the Roman Caezars arrived to strike the final blow to Egypt’s po- primitive enactments. It is inscribed on a clay tablet 1 1/2 feet
litical independence. Cleopatra was to be the last queen of Eygpt. square, and dates from possibly 2400 years B.C. The characters of
By the defeat of Anthony and Cleopatra at the battle of Actium, this inscription have therefore the solemn impressiveness of being
their dominion was shattered. Roman law and government sup- the oldest code-text in the world yet discovered.®!
planted its native institutions.
But the greatest treasure of Babylonian law is the Code of
Hammurabi. In 1902, a French archaelogical expedition excavating
78Id., pp. 58-63.
Id., pp. 18-15. S°William Seagle, The History of Law, New York, Tudor Publishing Co., 1946,
76]d., p. 17. p. 111.
7Td., pp. 20-21. 8lWigmore, op. cif., pp. 84-86.
32 INTRODUCTION TO LAW PART IT — THE WORLD’S LEGAL SYSTEMS 33
the great mound of Susa unearthed the great pillar — Code of Code of Hammurabi, Sec. 138. — “If a man would put away
Hammurabi, King of Babylon, who reigned in the Land of the Two his wife who has not borne him children, he shall give her money
Rivers about 2100 B.C. Inscribed upon a pillar of black diorite to the amount of her marriage settlement, and he shall make good
almost eight feet high, it contains some three hundred sections. It to her the dowry which she brought from her father’s house, and
dates back about 2100 B.C.®? then he may put her away.”
The Code of Hammurabi is the earliest known national code Code of Assur, Col. 1, Sec. 38. — “If a man puts away his wife,
in the world. It is also textually the most complete and authentic, he shall give her something if he wishes to; if he does not wish to,
as well as the most advanced of ancient codes, reflecting a long he shall not give her anything; she shall go empty out of his house.”
legislative history. The degree of legal maturity represented by the Deuteronomy, Ch. XXIV, Verse 1. — “When a man hath taken
Code of Hammurabi is far greater than that of the far later Hebrew a wife and married her, and it comes to pass that she finds no favor
Covenant Code or of the still later Roman Twelve Tables. Its provi- 4 in his eyes, because he hath found some uncleanness in her, then
sions range over nearly the whole scope of law — crime, family, let him write her a bill of divorcement and give it in her hand, and
property, commerce. The code reflects not only an agricultural but send her out of his house.”84
also a trading economy, legislates on the subjects of carriers, mer-
chants, and agents, and fixes the charges of physicians, The most advanced ideas in commercial law had already been
veterinarians, builders, boatmen, field laborers, artisans, ox-driv- reached in Mesopotamian transactions. We find, as early as King
ers, and shepherds and in other fields deals with the kissing of Hammurabi’s period, a promissory note payable to bearer, dated
married women, over-reaching by female tavern-keepers, theft at ® about 2100 B.C.; it is the oldest negotiable instrument in the world,
fires, fraud by wet-nurses, and the breaking of the horns or the now known to us:
cutting off of the tail of hired oxen.®
“B shekels of silver, at the usual rate of interest, loaned
For tracing the evolution of law, the value of this Babylonian by the Temple of Shamash and by I. Company, to Idin and his
Code is incalculable because about 1920, the discovery of another wife, are payable with interest on sight of the payors at the
partial code (the Code of Assur) dating from the later times of market place to the bearer of this instrument.”®
Assyrian domination in Mesopotamia, about a thousand years after
Hammurabi, enables us now for the first time to compare on a The glories of the Babylonian kingdom made it long pre-emi-
large scale different epochs of Semitic law. And since the full legal nent among neighboring peoples; the famous Hanging Gardens of
records of the Hebrew, another Semitic people, though more primi- Babylon were the theme of amazed contemporary visitors. Some
tive, date some 500 years still later, the parallel comparison of 1500 years after Hammurabi’s day, about 550 B.C. when the He-
institutions in these three adjacent peoples is bound to illuminate brew people were now captive in Babylon (the great judge Daniel
the problems of legal evolution. For example, in Egypt, the wife among them), that the Babylonian King, Nabunahid (as the
might by contract reserve the sole right of divorce; but in these Babylonian records call him), or Belshazzar (as the book of Daniel
three Semitic codes, only the husband could divorce; moreover, by names him), gave a feast, and the mysterious hand came and wrote
the Code of Hammurabi, in the passage here shown, the husband upon the wall. Belshazzar trembled and asked his wise men but
on divorce is bound to restore to the wife her dowry; yet, by the they could not interpret the writing; and then Daniel was brought
Code of Assur, he may give her only as much as he pleases; while in to read it. The fourth word of the handwriting on the wall,
the Hebrew law says nothing of any payment by the husband: interpreted by Daniel at Belshazzar’s Feast, was this: “Peres: Thy
SON kingdom is divided, and given to the Medes and Persians.” And “in
bnatd tne quik frouncl /00 Bc.
827d, 847q. pp. 90-91.

837q., pp. 86-88; Seagle, op. cit., pp. 104, 109 and 111. 85Id., p. 69.
PART II — THE WORLD’S cal SYSTEMS 35
ot
D xf AWW
the king of the First came the Mosaic period, to 300 B.C., including the kings,
that night,” says the chronicle, “was Belshazzar
the prophets, and the judges; then, the classic period, when the
Chaldeans slain.”86
rabbi developed the law; then the Talmud period, when the records
Belshazzar was the last native ruler of Babylonia. He lost his were consolidated; then the medieval and the modern periods.
empire to Cyrus, king of the new Persian nation, Aryans by race, Strictly as a system of law, it ended with thé seeond stage, A.D.
coming from the east. Other new invading races followed; and by a 100, at the replacement of Jewish law in Palestine by Roman rule;
century before Christ, under the Greek conquerors, the Babylonian after that it became mainly local custom, chiefly in ceremonial and
legal system was supplanted. Hammurabi’s pillar-code, and the moral rules.
vast storehouses of legal records, were gradually buried under the
Aryan During this first, or Mosaic period, the Hebrew government
rubble of ages; until, some 2000 years still later, another
was what may be termed a theocracy, wherein the authority and
this time coming from the west, a French explorer, De Morgan,
the power were ascribed to God. Justice was at first personally
chanced upon the pillar-code and bore it away in triumph to the
dispensed by the tribal leader, but as the tribal population multi-
Louvre Museum — the greatest prize of the century for the revela-
plied and political life became more complex, the transition took
tion of legal history.®”
place the personal justice of the tribal leader to an organized hier-
archy of courts. In the book of Exodus, Moses delegated justice to
3) Hebrew legal system
professional judges.®9
Although the next oldest legal systems are the Chinese and
Solomon, the son of David, in all his glory became famous in
the Hindu, the Hebrew system is considered in this chapter, ahead
his days as a royal builder; this date about 900 B.C. But Solomon
of the two, because it naturally follows the Mesopotamian. The
the royal Judge, as a sage skilled in human nature, made his name
early Hebrew civilization was originally nomadic and pastoral, then
for all time a synonym for judicial wisdom. And there were two
agricultural, and only later commercial.
women who lived together and had each a babe, and one babe died,
Both in Egypt and in Babylon, the Hebrew tribes sojourned and its mother exchanged it secretly for the living one, and they
for long periods as a subject people. About 2100 B.C., the patriarch disputed for the living one before Solomon, and he said, “Take a
Abraham saw King Hammurabi as an enemy in battle. Nearly a sword, divide the living child in two, half for each.” And the false
thousand years later, the leader Moses with his brother Aaron, mother said, “So be it.” But the true mother said, “Nay, nay, do not
appeared in the court of Pharaoh (perhaps the great king Rameses slay the child, but give it to her!” And Solomon’s wisdom thus
II, 1300 B.C.) and Aaron, it is recorded, cast down his rod before discovered the true mother and the people saw “that the wisdom of
the Pharaoh and it became a serpent; this was the first miracle by God was in him, to do judgment.”®°
which Moses hoped to soften Pharaoh’s heart, and free the Hebrew
Like the Egyptians and the Mesopotamians before them, the
from their bondage. And it was some six hundred years still later
Hebrews attributed all their law, whatever the period of its origin
that the great Hebrew judge Daniel, when a captive in Babylonia,
or its character as written or unwritten, to some first divine law-
must often have looked upon the code-pillar of Hammurabi, which
giver. To the summit of Mount Sinai, in Arabia, the lofty Pinnacle
at that time still stood on the acropolis of Susa.*®
five thousand feet high from the plains below, Moses is said to have
In Daniel’s time, Hebrew legal history was still in its first gone up to receive from Jehovah the Two Tables of the Law,?! the
stage for the Hebrew legal system developed in five well-defined so-called Ten Commandments. .
stages: AS puh-opwieds Mages
4 Pence. col
eT 4?
SO Sg Sey Piss AY
89Td., pp. 109-110.
86Id., pp. 91-93. %07d., pp. 111-112.
877d. 917d.
887d.
; yor? ow 48 ch
8) & , 1¢
In the Mosaic period comes the Pentateuch, or Five Books, The third period, the Talmudic, from A.D. 200 to A.D. 500, is
made up of narratives and Codes — Genesis, Exodus, Leviticus, formed by the Talmud, ic., Meports of all recorded cases and com-
Numbers and Deuteronomy. The books of the Pentateuch were mentators singg about 300 B.C., digested in two authoritative col-
known as the Torah, or Ancient Law.” lections — the’ Mishnah, or codjfied text, compiled about A.D. 200,
in New Hebrew script, and the Geniara, or commentary, about A.D.
The second, ori assic, law-period is formed by the legal prac- 300-500, compiled in Aramaic script.%” — ,
tice developing between 300 B.C. and A.D. 200. The government g
was in theory still a theocracy, i.e., divine command inspiring the The fourth, a medieval, period of Hebrew law begins at the
rulers.% dispersion of the Jewish nation, which culminated about A.D. 500
and extended over the next thousand years. In this period, learned
By this period, the function of justice had ceased to be a royal rabbi wrote treatises (in Hebrew or Arabic), compiled codes, and
one. The Jewish people came now successively under the suze- thus perpetuated the traditions of the law. One of the most famous
rainty of Persian, Greek, and Roman rulers; but in their internal was Maimonides who lived in Nogth Africa in the 1400’s and wrote
government the supreme authority — religious, social, and politi- numerous works. By this meansAthe common customs of religious
cal; legislative and judiciary —- was vested in a Senate, known and family life and commercial practice were kept alive, though the
finally under the naméd Great Synhedrion (this was a Greek term, race was scattered in many countries¥®
meaning “assembly,” hebraicized as “sanhedrin”; the native He-
brew term was “Bet din hagadol,” or, “high council,” “high court”).
It consisted of seventy-one members, and its most frequent activity the Jewish legal systef we rom A.D. 1600, nationalism in Europe
was that of a Supreme Court. began to amalfamate all races who lived within given territories,
and to emphasize national languages; so the Hebrew language be-
Under the Roman sovereignty, the Jewish people for two cen- came only a secondary one for Jews. During this period, the Tal-
turies preserved the administration of their own law in the main. mud was critically studied and translated into the various national
The ruler Herod was still termed king; and at the inner Court of languages.
the Temple at Jerusalem a stone known as Herod’s Pillar, inscribed
in Greek and Latin, was the symbol of this independence; it warned But even today, the Scroll of the Law, known as Torah, or
intruders of the death penalty for any Gentile who entered the holy precepts of Moses, fixed on two staves and unrolled from right to
spot.% left in ancient fashion, is preserved in every synagogue; and the
Ark of the Law, standing at the altar of the Synagogue, is thus the
But the convulsive political rebellions of the Jews, after the most important treasure in the Sanctuary, because it contains this
time of Jesus, led the Roman Emperor Vespasian to take rigorous the Jew’s most precious possession, the Torah. As it is recorded
revenge. Jerusalem fell, under the assaults of Titus, son of Vespasian that the good King Josiah, when the lost book of the Law was
in A.D. 70. And the soldiers carried away to Rome the sacred Ark of found, went up into the temple with all the people of Jerusalem,
the Law; containing the Scroll of the Law, and the Seven-Branched both small and great, and read in their ears all the words of the
Candlestick, as part of the spoils in Titus’ triumphal procession. book of the covenent — so, still today, on the Sabbath, the Torah is
The Hebrew general was cast headlong from the Tarpeian Rock, solemnly read loud in every part of the land.1©°
pursuant to ancient Roman custom with a vanquished people. He-
Miia. fry Roweted (

brew self-government ended; and their legal system, as such, ceased
to prevail wok Z 3
Santudlirin -
227d, pp. 107-109.
987d, p. 112. 97Id.,p. 117...” — Aadttite. King eau
947d,, p. 118. Fd. p. 123.
°57dq., pp. 115-117. °°Td., pp. 180-132.
1007 q.
(2t2 fe
967g.
Murfue|
e
STA
4) Chinese legal system “Since the dawn of its history, China has believed in the exist-
The third earliest legal system of the world in origin is the ence of a natural order of things, or law of Nature, including all
Chinese, beginning in history before 2500 B.C. Its’unique distinc- parts of the universe and adjusting them harmoniously with one
tion is that it is the only old one th&t has survived continuously to another. This order of Nature was not made; it exists and is its own
date — a period of more than 4000 years; in comparison, the other reason for existence. Humanity is a part of it, and must conform to
living systems of today are but children.1°1 it. And as the elements in this order of nature are interdependent,
whatever affects one element reacts on the others also...
The Chinese are a unique race. They are the world’s greatest
pacifists; they have never gone out to seek by conquest a single “The consequences of this theory in the field of government
acre outside of their native territory. Conversely, they have been and of justice may be readily perceived; here are the most impor-
tant:
patriotically exclusive, and have never willingly admitted stran-
gers into their native land and have absorbed several waves of “This fiatural law does not yield precedence to positive law,
conquest by the Turanian Mongols, Tartars and Manchus. And the i.e., laws répréserting human experience and wisdom. P9Sitive law
reason, in both cases, is that they were entirely contented — con- ought to confine itself to translating the natural law into written
tented with themselves, with their ancestors, with their history, formulas. If this translation is correct, the written law is good and
and with their place in the world. The sturdy survival of the Chi- binding; if the translation is incorrect, i.e., if the prince or the
nese as a people is due to their strong clan and family structure governor in formulating his decrees has misinterpreted the law of
and their consequent conservatism.! nature, the written law is not binding. A Chinese will regard as
About 500 B.C., China had as chief justice one of the world’s binding a rule promulgated to “the edicts from on High” and he ~will
deem himself free to disregard it if he finds it in disaccord with the
wisest men — Confucius. His philosophy, which is not a religion
natural law. The notion will not occur to him that the same act can
but covers the whole range of personal morality and practical poli-
be permissible or forbidden, good or bad, just or unjust, independ-
tics, has now pervaded Chinese life (in spite of the inroads of rival
ently of its intrinsic moral quality and solely because the holder of
systems) for 2400 years. He was born in Kufu, in the province of
political power has so labelled it. Thus, the almost religious respect
Shantung; but spent his life in many provinces as statesman, a
for positive law, marking our Occidental civilizations of Greco-Ro-
philosopher, and ajudge.193
man origin, does not exist in China.”!%
* Confucius’ philosophy rests on a passionate yet rational re-
spect for those conventions which the experience of the past has A marked contrast of the Confucian political philosophy with
Occidental systems is that its fundamental maxim is emphatically
verified. “I,” he said, “ am a transmitter and not a maker for I trust
“a government of men, not law,” the reverse of our own maxim; for
and admire the men of former times.” “Filial piety is the root of all
the Chinese philosophy offgovernment is that a good ruler makes a
good conduct. What is filial piety? It is the skillful carrying out of
happy people] The Master said “Let there be Men, and Government
the wishes of our forefathers.”1
will flourish but without the right men, government decays. There-
A modern legal scholar, George Padeoux, explains the Chinese fore the success of government lies in getting proper men. If you
theory of government and justice which underlies its system of law lead the people correctly, who will dare not to be correct? Hence,
thus: the institutions of a ruler are rooted in his own character and
conduct.” Thus, Chinese political science relies on the wisdom and
Clan— strony Feamily altace. discretion of the ruler rather than on the text of laws,'%®
rhs Wg,p. 141° Con fucins-

1027, chief fuse
1037g,, p. 142. 105Preface to Leang Ki-Tchao, Peking, China Booksellers, Ltd., 1926.
1047d., p. 141. 106Wigmore, op. cit., pp. 145-146.
40 INTRODUCTION TO LAW PART II —- THE WORLD’S LEGAL SYSTEMS 41
It is indeed true that in the centuries just after Confucius After the Burning of the/Books, many vicissitudes of codifica-
(400-200 B.C.), a school of philosophers arose — known as the tion ensued. The Tang dynasty, for example, about A.D. 640 issued
Legists — who repudiated entirely the doctrine of a government of a code of some 500 articles. The Tartar emperor Timur (grandson of
men, in favor of the doctrine of a government of laws. Under the Kublai Khan) about A.D. 1320, promulgated a code of 2500 articles.
Chin and the Han dynasties (about 200 B.C.), for a century or so, But none of the conquerors from the north attempted to alter es-
this philosophy obtained the upper hand, and was effectively prac- sentially the traditional laws and customs of the Chinese. The great
tised by able statesmen of that era. But its dominance was brief. It Tartar ruler, Kublai Khan who conquered China about A.D. 1260,
was but a passing episode. The Confucius principle, congenial as it founded the Yuen dynasty, and established Peking as his capital
is to the racial Chinese nature, was soon once more enthroned in city, proclaimed that “the doctrine of Confucius was a law destined
Chinese government, and firmly maintained that place during the to govern all generations, . . . and all should conform strictly to its
next two thousand years. !07 divine behests; .. . for the state’s laws are constant and invariable,
and must be obeyed as the rule of conduct for all.” The most radical
Another notable consequence of the Confucian philosophy (or
innovation attempted by the all powerful and broad-minded Kublai
Chinese character) is that conciliation and mutual adjustment are
Khan was the introduction (A.D. 1269) of an alphabet, especially
looked upon as ideal elements of justice.!% =
constructed on his order by a Tibetan scholar, to supplant the mul-
Related to this is another marked feature of China’s legal tifarious Chinese ideographs; and the very decree above, confirm-
system — the subordinate part played by the letter of the law, and ing the traditional laws, was promulgated in this alphabet. But
the legislation as such. The|ruler should frame the laws to voice solid Chinese habit and thought was proof against even this change;
the vast sentiments and wants of the people|— not to impose his and after his death its use gradually lapsed.'"!
personal will upon an unwilling people; else there can be no con-
In the ensuing (native) Ming dynasty, about A.D. 1400, the
tentment. minister Young Lo framed a new general code; and on this code was
The dates of the earliest Chinese codes or laws are doubtful. founded that of the next_(eonquering) Manchu dynasty, the Tsing,
The legendary history of China goes back to 2500 B.C. or earlier; some two centuries lated This Ta Tsing Lu Li or Code of Tsing,
but the oldest textually transmitted historical records date from became law about A.D. 1650, and endured until the revolution of
about 1200 B.C. Some beginnings of codes, now lost, are attributed A.D. 1912.22 — cima JO TALMMD - Coe 3 COMMENTPR
to the prior interval. But the earliest code whose text is now extant This work consists, first of a code proper, called Lu, the text of
is that of Chow, about 1100 B.C., said to have been composed by which never changes; and secondly, of the annual edicts and judi-
Tan, Duke of Chow, brother of the founder of the Chow dynasty. cial decisions, called Li, which interpreted the Lu, made them flex-
This code is known as Chow Li, or Regulations of Chow. ible, and adapted them to progress — much like the function of
The Chow Li was sought to be extirpated by the great “Burn- equity alongside the Common Law. There were about four hundred
ing of the Books” in 212 B.C. This was a holocaust, decreed by an and fifty Lu sections, and (in the edition of 1907) about two thou-
erratic ruler, who forbade all invocation of the constituted customs sand Li sections. The page (reading downwards, right to left) shows
of the past and thus aimed to free his own notions of government the Lu, or fixed constitution, printed in the lower space; the judi-
from all conservative criticism. However, the Chow Li was secretly cial rulings are seen above; and the Li, or annual modifications, are
preserved.!!° printed in the middle. Every five or ten years a new edition was
promulgated with these interpretations inserted cumulatively at
the code sections, thus bringing the system up-to-date.
th Gv Ant nals. a Apes,
107Iq., pp. 145-146.
1087d., pp. 184-190. MT. pp. 159-160, pore
109%. p. 158. N27q,, pp. 160-162
107g. pp. 158-159. 1137q.
PART II — THE WORLD’S LEGAL SYSTEMS 43
Buddhism was founded by one man, one of the greatest who

5) Hindu legal system
ever lived — Gautama Buddha — born in Nepal sometime between
During the last 3000 years, India had been entered and domi- 600 and 500 B.C. Buddha’s basic teaching is the compet of Nir-
nated at least six successive times by immigrant alien races — vana, which means roughly the peace of mind and soul that comes
Indo-Aryans, Persians, Greeks, Turks, Mongols, English. After World to man after he has gyercome three cravings@those for riches,
War II, India was granted her independence by England.! sensual enjoyment and hacaoreatity
eS
Of the above-mentioned immigrant alien races, the Persians The active spread of the Buddhist branch dated about .250
and the Greeks only took booty and left no traces. The fourth and B.C. propagated by the edicts of King Asoka — often termed the
the fifth races, the Turks and the Mongols, brought Mohammedan Constantine of Magadha. He promulgated thirty or forty edicts,
law, lived in jeweled magnificence, and developed in India the arts engraved on stone. These edicts were composed in the Magadha
of architecture, sculpture, and painting — the products of luxury script, a script older than Sanskrit; they represent the earliest
and taste. The justice of these Mohammedan emperors was done in extant law record of India. Most of these edicts are short tracts,
the Hall of Audience in their superb palaces; and Diwan-i-Am, or expounding and propagating his system of moral law, or “dhamma,”
Audience Room, at Delhi is known as the “Westminster Hall” of founded on the preaching of some two centuries earlier. This term
Delhi. The palaces of Delhi, Agra, and Fathpur, have been termed “dhamma’” (like “maat” in Egyptian, “fas” in Latin, and “themis” in
“dreams in marble, designed by Titans, and finished by jewelers.” Greek) had a broad inclusive import; it meant “righteousness,” “good
And the Mogul justice, of its kind, though corrupt in some periods form,” “duty,” and as Buddhism developed — the religion embody-
and places, was efficiently dispensed under many of their rulers. ing Asoka’s philosophy of life — the term “dhamma” came to in-
The Emperor Salim had a chain and bell attached to his own room clude the meaning “Law.”!”°
in the palace, so that all who would appeal could reach him run-
The new Buddhist system, carried in the Magadha script used
ning the gauntlet of the palace officials.‘
by King Asoka, penetrated even beyond India, into Burma, Siam,
The English race, the last to enter India, brought unity, lib- Tibet, China, and the East Indian Islands. A Magadha script, in-
erty, and honesf/administration; but English law in India is mainly deed, was found as late as A.D. 1650 in the Philippine Islands,
public law, preservingin private law the various native customs.!!6 used for the Tagalog language.!*!
And so, of those six races of immigrants, the first, the Indo- In India, between A.D. 400 and 700, a complete social and
Aryans, or Hindus, some 3000 years ago in origin, are the only race religious reaction took place. Buddhism was eradicated — as some
that developed a native system of law.!!7 say, by Brahmanistic persecution; but the true cause is not yet
Buddhism agreed upon by scholars. At any rate, though Buddhism has spread
act he Hindu system gave rise to two branches —
and ‘Brahmanism (also called Hinduism) — each of which is both over the entire east coast of Asia, it has virtually disappeared from
India, its original home. After A.D. 800 in India, Brahmanism pre-
religion and law. Buddhism (which simply means “Enlightenment”),
vailed for all Hindus.!2?
though of a later origin, developed earlier than Brahmanism and
spread beyond the borders of India; but it has disappeared centu- Brahmanism, or Hinduism, apparently began in the days of
ries ago from the Indian peninsula. An exile from its home, it the first Aryan invaders as a kind of nature worship; it developed
proceeded then to conquer China. The Brahman branch, for its into what is certainly the most complicated theology known to man-
part, finally came to dominate.''8 kind. It holds that one supreme being, Brahma, exists in several
147g, pp. 211-218. 1197q., Gunther, Inside Asia, pp. 390-391.

157. pp. 213-215. 120Wigmore, op. cit., pp. 224-226.
1167 q.
Wd. p. 227.
1177.
1187,
12d. p. 242,
forms or manifestations and is the universal spirit which pervades course what enables caste to survive unshaken. Nowadays, the
everything.
!28 rule has been somewhat relaxed, but marriages between a Brah-
man, say, and a,Sudra, are extremely rare. Marriage between a
The rights of the Hindu population are still determined mainly
Brahman and afi Untouchable would be unthinkable.!”°
according to the texts and customs of the Hindu legal system, which
traces its origin back for 3000 years, to the‘ancient Aryan invaders Up to the nineteenth century, India was a congerie of hun-
— the contemporaries of Moses, of Confucius, and of Rameses.124 dreds of principalities; in each one ruled independently a mahara-
jah. The justice of the king was in theory personal. It was partly
* The typical law-book of the Brahman-Hindu system is the
‘done by sending judicial officials to go on circuit; but special classes
famoug Laws of Manu, ascribed by tradition to Manu, the primitive
of cases were reserved for the king’s personal hearing and decision
author of this system, a pre-historic deity. This system was copi-
in the Audience Hall. The second hour, or period of the day, was set
ously cultivated, for twenty centuries, by the continuous specula-
apart for his judicial business; and if the modern Hindu passion for
tions of several hundred priestly jurists, who produced thousand of
litigation is a race-inheritance, the hour of royal justice must have
volumes on law. This Hindu Code was a Brahman compilation of Manu, the king;
been a crowded one. As inculeated in the Laws
which was, in point of relative progress of Hindu jurisprudence, a
when he entered the assembly-hall, and took the seat of justice to
recent production. Its date of origin cannot be fixed with certainty,
determine lawsuits, should be accompanied by three Brahmans
but the best opinion is that it was about the beginning of the
learned in the Veda; he was then assured that his justice was
Christian era.!25 or Dharma, says the book of Manu, is
divine; and divine Justice,
Perhaps the most marked peculiarity of this sytem was the like a mighty bull, who, if obstructed or deceived, will avenge him-
4 Brahman-Hindu rules of caste. Even today are found more than self on kings, judges, witnesses or parties alike.'*°
eighteen hundred castes and sub-castes; there are fifty million peo-
The Magadha script of King Asoka, in a more developed form
ple who are untouchable by other individuals. The law-book of
known as Pali, had become the repository of the Buddhist laws of
Manu is founded on the principles of caste.!26
Burma, Ceylon, and Siam; and the laws of those countries came to
* Caste is as old as India. It is the inner citadel of Hinduism. It represent a modified Brahman Buddhist system.'*!
is the institution which makes India unique, the device breaking
The basis of the Malayan civilization for several centuries was
up Indians into fixed categories that has no approximation else-
also the Buddhist-Brahman religion. For in southeastern Sumatra
where in the world. “Every Hindu is born into a caste and his caste colonial kingdom of Sri-
had arisen, about A.D. 700, the Buddhist
determines his religious, social, economic, and domestic life from
Vishaya, whose domains finally extended to the Philippine Islands
the cradle to the grave.” No man may ever leave his caste, except to
(where the tribal name “Visaya” still bears witness to its rem-
be expelled. It is impossible to progress from caste to caste.!27
nants). Later, about A.D. 1300, the kingdom of Madjapahit, origi-
CaS aL nating from a Brahman colony in Java, overthrew the Sri-Vishaya
L Untouchables\ Possibly, the*Untouchables were originally the power, took control of the Philippines, and lasted for about two
Dravidians whom the Aryans wanted to subdue.!28 centuries. The Mohammedan invasion did not begin until this pe-
riod. At the time of the Spanish discovery of the Philippine Islands,
The great, the overwhelming characteristic of the caste sys-
not only were the more advanced tribes using the Hindu syllabaries
tem is that marriage between castes is forbidden. This rule is of
for writing but also their mythology, folklore, politics, customary
law, and general literature had a distinct Indian cast.”
123Gunther, op. cit., p. 391.
1247.
125Seagle, op. cit., p. 123. 1297 q. . a
l26Wigmore, op. cit., p. 244. 130Gunther, op. cit.,.p. 594.
12774. 131Wigmore, op. cit., p. 228.
1287. 1327. pp. 227-228.
6) Greek legal system + splendid shield which Hephaestos made for Achilles in the Trojan
war wherein the parties plead their cause before the assembly of
The earliest written record of Greece is the Iliad, the first and freemen; the chief presides as umpire; then the wise elders, skilled
greatest epic poem of the world, composed by Homer, a poet of in the law, propose various judgments; then the freemen acclaim
supreme genius, probably about 900 B.C. The Iliad recounts the
the best one and thus decide the case.135
peoples and civilization of ancient Greece during the 1300-1200
B.C., now referred to as the Homeric period, and it is from this Athens came to be the most highly developed of the city states.
period down to the absorption of Greece into the Roman system, The organization of justice, and the jurisdiction of the various courts,
about A.D. 300 that the Greek legal system extended. at Athens, changed from time to time, with the political fluctua-
tions between democracy and oligarchy; but its spirit, after the
Of the five earliest legal systems already considered, the Chi- reforms of Solon, and especially at the typical periods of Pericles
neseWwas the only one not founded on religion; in the Egyptian, the (450 B.C.) and of Demosthenes (350 B.C.), was essentially demo-
Mesopotamian, the Hebrew, and the Hindu legal systems, the law cratic, 156
is conceived as revealed and imparted, through the ruler, directly
from God, and therefore is a part of the dictates of religion. The
later Mohammedan system was also of this type. With the Greeks, of cases and different periods. At Athens, the Agora, rent ee ete
in their maturity, is first met a legal system that is secular; i.e., it place, the Areopagus Hill, and the Pnyx Hill were the chief places
is not conceived as a part of religion emanating from a divine of interest for law and politics. Usually, the Assembly meet on the
source. With the Greeks then, and after them the Romans, we hill called Pnyx; it was there that Pericles and other famous
come to secular systems of law.14% statemen, moved the assemblies with their eloquence; and it was
there in the open air, under the warm blue Greek sky, before the
There was never (until Alexander’s time) a single unified Greek massed multitudes every citizen being a legislator, that the great
nation, an empire, under an autocratic ruler. The Greek race emerges art of political oratory was first developed in the world’s history}'*"
into history as a hundred or more local tribes, or clans, or city-
states, each independent, and each based more or less on democ- Another hill, the Areopagu, was sacred to the legend of
racy. The Homeric poems show us the king at the head. He was at Orestes, and in the earlier periog this was the special place for
once the chief priest, the chief judge and the supreme warlord of certain trials for homicide. In the legend, Orestes had deliverately
the tribe. But he did not govern wholly of his own will; he was
guided by a Council of the chief men of the community whom he or Avengers were the prosecutors; jos Degoee fp ical: the Fares
consulted; and the decisions of the Council and King deliberating had frankly declared herself ready to cast the deciding vote in his
together are brought before the Assembly of the whole people. More favor. However, the jurors acquitted him; and Orestes, in gratitude,
then erected a memorial altar to justice; and here met the once
important than either King or Council for the future growth of
Greece was the Assembly of the people, or Agora, out of which supreme tribunal of the Areopagus, °T Senate of One Hundred, as
democracy was to spring. ordained in the goddess Athena’s w °° ds: [This court, majestic, in-
corruptible, the sleepless watcher of ™Y land I set.)88
~ The spirit of Greek justice, in classical times, was not theo-
cratic, as in the earlier Oriental system already described, but was It was on the Areopagus that Paul the Apostle made his memo-
secular; and civic officials, not priests, administered it.154 rable address to the people of Athens, “O men of Athens, God hath
made of one blood all nations that dwell upon the earth.” And it
The earliest specific mention of Greek democratic justice is
found in Homer’s description of one of the scenes depicted on the
1957 d., p. 288.
oy gem
ohn - gamiMhod tani 1367d., p. 319.
1337, pp. 283-284. 1377d., pp. 319-323.
| 1387q.
134Wigmore, op. cit., p. 289.
Polvo S
was before the Court of the Areopagus that the celebrated lawsuit Athenian law and justice had come to turn essentially on the
is said to have been brought, related in the anecdote of the contin- jury system, and it was elaborately organized, in the city’s constitu-
gent fee of Pfotagoras, the teacher of oratory. He made a contract tion. An account of the procedure is given in detail in the text of
with his pupil Evalthus that his fee should be payable when the Aristotle’s monograph on the “Government of Athens,” in a papyrus
young man won his first lawsuit. After a while, the lessons ceased discovered in Egypt and completely reconstructed only in 1903, and
and the teacher pronounced him competent, but the young man published in translation only in 1920.143
insisted that he was not. So the teacher sued. While waiting for About 399 B.C., Socrates was accused of impiety and the cor-
trial, the teacher said to his friends. “I win, either way, for if the ruption of youth. The accusation ran: “Socrates is guilty of crime
judgment is for me, he must pay; but if it is for him, he has won his because he does not believe in the gods recognized by the city, but
first suit and under the contract he must therefore pay.” But the introduces strange supernatural beings; he is also guilty because
young man said to his friends, “I win, either way; for if the judg- he corrupts the youth.” The trial was heard in court of 501 judges,
ment is for me, I am not liable; and if the judgment is against me, I the king-archon presiding, and the old philosopher was found guilty
have not yet won my first suit.” The judges, it is said, were so
by a majority of sixty. According to the practice of Athenian law, it
puzzled by this logical dilemma, but they adjourned the case for a was open to a defendant when he was condemned to propose a
hundred years.129 lighter punishment than that fixed by the accuser, and the judges
The trial method was only an advanced form of the early one were required to choose one of the two sentences. Socrates might
in the tribal assembly, depicted by Homer on the shield. At Athens, have saved his life if he had proposed an adequate penalty, but he
each year @ jury list of six thousand or more names was made up. offered only a small fine, and was consequently condemned by a
For ordinary-Cases, a panel of two hundred and one names (at much larger majority to death. He drank the cup of doom a month
another period, five hundred and one names), drawn by lot, might later, discoursing with his disciples as eagerly as ever till his last
suffice; but for special cases the panel might be as many as one hour.!44
thousand or fifteen hundred or even twenty-five hundred jurymen.'*° Socrates was the expounder (though not the inventor) of the
Under the system instituted by’Solon, as it ultimately devel- great art of cross-examination as a mode of extracting truth; an art
oped, an Athenian trial was entirely in the hands of non-profes- which the philoscphers, in modern times, have misguidely aban-
sionals. The presiding magistrate was selected by lot, the jurors doned to thé lawyers. And even during those thirty days of impris-
were drafted from the whole citizen body, any citizen could be pros- onment that elapsed before the fatal cup of hemlock was handed to
ecutor, and the defendant conducted his own case. !4! him, afid while he sat in chains, conversing with his disciples in
those masterpieces of dialogue transmitted to us by Plato, we find
There were magistrates) who supervised the preliminary pro- him still shrewd and genially wielding that wonderful weapon of
ceedings; but at the trial, thé magistrate was no more than a chair- cross-examination, in discussing the immortality of the human
man of a public assembly. There was no presiding judge, to declare soul,145
the law authoritatively. There was no appeal, in the modern sense.
The citizens were the whole court — judges of law and of fact, The earliest of the Greek communities, known to us in defi-
without control. There was no jury-deliberation. After the evidence nite records, was the large island of Crete, lying in the Mediterra-
and speeches, all filed out, casting their ballots in the verdicturn as nean on the way from Egypt; and here, tradition places the home of
they departed.!”? Minos, the first Greek law-giver. Minos’ date is perhaps 1600 years
before Christ; and the throne on which he sat in the royal palace at
1397q., pp. 319-323.

M0Id., pp. 291-292. 1437 q,, pp. 293-294,
141Ydq. M4Bury, op. cit., p. 565.
14274, \45Wigmore, op. cit., pp. 292-293.
Knossos, 3500 years ago, can now be seen by the traveler replaced seems to be that though the Greeks had a system of justice, it can
in its original spot. Minos, in Greek mythology, received his laws hardly be said that they had a system oflaw — in the Roman and
from Zeus, and later plays the part of one of the three judges of the modern sense of the term. They constructed no codes. They
souls in Hades.!46 reported no reasoned decisions. They wrote“no doctrinal treaties.
They developed architects, philosophers, sculptors, and painters
Among the lawgivers of the 7th century, the most well known
but no professional judges or jurists. Their one juridical contribu-
were Dracon and Solon the wise.
tion, the popular jury-court, took a form most susceptible to ca-
In Athens 621 B.C., Dracon was appointed an extraordinary price, and essentially incompatible with any science of law. They
legislator (Thesmothetes), and empowered to codify and rectify the lavished their wealth on temples (witness the temples of Olympia);
existing law. We know only the provisions of that part of his crimi- but not, as the Romans did, on courthouses.!49
nal law which dealt with the shedding of blood for these provisions
Alexander’s vast empire left surviving it no permanent monu-
were not altered by subsequent legislation. In later times, it was
thought that Dracon revealed to the Athenians how harsh their ment of Greek law. Even the ruins of the Parthenon are still zeal-
laws were, and his name became proverbial for a severe lawgiver. ously studjéd and measured by modern architects, Every scene of
An Athenian orator won credit for his epigram that Dracon’s laws areek tragedy, and every school of Greek philosophy, must be fa-
miliar td modern masters in those fields. But the resurrected texts.”
were written not in ink but in blood. This idea arose from the fact
of Roman law are still perused by thousands of students in every
that certain small offenses, such as stealing cabbage, were pun-
country as the ultimate source of a large part of the world’s law
ished by death. A broader view, however, of Dracon’s code will modify
today. And Greek law more interests only the historian and the
this view. He drew careful distinctions between murder and vari-
ous kinds of accidental or justifiable manslaughter. '4” Philologist.'5° baat MWNG helo - caged yA
The name of Solon, the legislator (who lived about 600 B.C.) is 7) Roman Legal System (Roman Law)
forever associated with the laws of Athens. Solen typifies the thor-
In its broad sense, Roman law refers to the entire legal order
ough democratization of Athenian law and justice. About 594 B.C.,
of the Roman state, from the time of the Republic to the Roman
Solon was solicited to undertake the work of reform. He definitely
Empire, covering a period of almost a thousand years. In this sense,
undertook the task and was elected archon (regent) with extraordi-
Roman law embraces public law, sacred law, private law and cus-
nary legislative powers. One of Solon’s first acts was to repeal all
tomary law.
the legislation of Dracon, except the laws relating to manslaughter.
His own laws were inscribed on wooden tables set in revolving Frequently, Roman law is taken in a more restricted sense as
frames called axones, which were numbered, and the laws were the mature or developed system, as described in the Corpus Juris
quoted by the number of the azon. These tablets were kept in the of Justinian. In this sense, Roman law means the private law gov-
Public Hall. But copies were made on stone pillars, called in the old erning private rights, interests, and transactions, excluding the
Attic tongue Kyrbeis, and kept in the Portico of the King. Every public law of Rome. It is in this sense that Roman law is also
citizen was required to take on oath that he would obey these laws; known, as Civil Law.
and it was ordered that the laws were to remain in force for a
The development of Roman law can be divided into three peri-
hundred years. !48 ods namely:
Looking back over the Greek records, and comparing them
a. The Archaic period, or period of, Infancy — from the found-
with those of the people that preceded and followed, the truth ing of Rome to the Twelve Tables (451 B.C.).
ee Plats - Aacon
M8]d,,p. 337. ~ Ryu L~ a be
l47Bury, op. cit., p. 172. M497d., pp. 858-361
M8Wigmore, op. cit., p. 342 oluwtid
1507q.
Je the
b. The Republican"period, or period*of Youth — from the Boni Mores were rules that flowed from good morals and us-
Twelve Tables to the founding of the Empire (451-30 B.C.). ages. In the ¢ra of strict law, they were not enforced in Jus. But the
key concepts in Boni Mores provided the basis of the system of
c. Maturity period’and Old Age, or Classical period — from Roman Equity. By and large, a heavy preponderance of ius hono-
the founding of Empire to the death of Justinian (30 B.C.-A.D. rarium (Praetorian law) was influenced by or the outcome of Boni
565). Mores.
a. Archaic Period Jus was the law proper. It consisted of rules made binding by
custom and tradition. While the rules of Fas were of divine origin,
In this period, law was closely connected with religion. In the rules of Jus were fashioned by human society itself. In the
origin, it proceeded from the divine will. Law then was found or archaic period, Jus was largely unwritten. The written or enacted
received, not made, by men. In actual content, however, the rules rules consisted chiefly of the leges regiae, or laws laid down by the
consisted of customs and traditions. These customs and traditions kings. These dealt largely with sacred matters. Jus»provided the
were given expression by the college of pontiffs, who had exclusive core ‘around which the Roman legal system developed. Later, as
custody over the law. This assured stability. On the other hand, the Roman society became more complex and secular, the more explicit
iaw was unwritten. This permitted its adaptation to the changing agencies of legal development fostered its growth, specifically
conditions of Roman society, according to the ideas of its custodian. through enactment, interpretation and codification.
At the same time, such leeway infimterpyetation opened the door to
abuses and injustices. We have noticed“earlier the demand of the b. Republican period
‘plebeians for publication of the law, which led to the enactment of In terms of the developing content of Roman law, this period
the Twelve Tables. At this stage, formal enactment played very was marked by a very high level of legal creativity. In the ealier
little part in the development of private law. Theweges\regiae were part of this period, the,ius,civile.of Rome. was dominant. Later, the
confined largely to public administration. conquest of Latium then all of Italy, and the subjugation of many
Early Roman law consisted of customs, including quasi-reli- parts of the Mediterranean area, forced the development and infu-
gious regulations, which had behind them the combined forces of sion of a new element into Roman law. With many subject peoples
religion and tradition. This is generally called the ius quiritium, under the rule of Rome, an entirely new set of rules had to be
Principal divisions were (1)ius publicum, or the Roman constitu- fashioned to govern their relationships, not only with Romans but
tion, (2) ius sacrum or ius divinum, i.e., pertaining to sacred rites, also among the different peoples. This was the“fus gentium. In the
and (8% ius privatum, or rules affecting private rights. For a long latter stage of the Republican period, thetus»civile was broadened
time, Roman law was unwritten. Knowledge of the law pertained to embrace many fundamental legal principles common to the legal
exclusively to the/sacerdotes publici. (state priests), particularly the systems of the nations under Rome. Key legal ideas were intro-
college of pontiffs. In this capacity, they were known as custodes duced and developed which later shaped the rules fashioned in the
legis. period of maturity.
Apart from custom and tradition, religion and morals played During the early Republic, the sources of law were: (1) cus-
a great part in shaping Roman law. These elements may be dis- toms and traditions, (2) interpretation thereof (responsa) by the
cussed under the following concepts: (1) that of religion, Fas; (2) pontifices, and (3) enactments of the assemblies.
that of morals, Boni Mores; and (3) that of custom and tradition,
In 452 B.C., the decemviri legibus scribundis was instituted
Jus. and conferred with exclusive and supreme power in the State. Its
Rules that flowed frotal Fas were mandates of divine origin. chief purpose was to compile a complete code of laws. The commis-
These were deemed directed not so much to individuals as to all sion, headed by Appius Claudius, consisted of patricians. As soon
men and nations. Thus, they were on a higher plane and had a as the commission entered its task, all the regular magistrates
greater range than merely human law.
They
retired. Each decemvir administered the government for a day. 4, Edict — enactment of the Praetor (the chief magistrate)
drew up a code of laws, which was approv ed by the senate and by
then publish ed on ten tables of Jus civile applied only to Roman citizens-As the Roman State
the comitia centuriata. These were
its work of codific ation after expanded through conquest and alliances, there came under the
wood. The commission then continu ed
authority of Rome many peoples who were not Roman citizens. To
a change of membership, with five plebeians given seats, but their the extent that they belonged to an autonomous community, such
later work was rejected, In 449 B.C., the decemviri gave up the as many Italian towns, their disputes were settled through their
reigns of government, and the consular system was restored. The
own laws. But where they belonged to different communities, a
consuls drew up two tables of laws, which were then approved and problem arose. Their disputes could not be decided according to the
published. The ten tables of the decemvirs plus these later two jus_civile, nor by the magistrates administering the civil law. To
constituted the Twelve Tables, the first Roman Code. meet demands for justice of the Italian communities, the office of
With the adoption of the Twelve Tables, the basic elements or Praetor Peregrinus was established. He was not a magistrate, ini-
principles of Jus Civile came to be written. J tially at least, since he administered no system of law. He was, in
fact, an arbitrator.
y Under the Twelve Tables, the key principles were: (1) The
familia or household as the key institution. Its welfare and conti- Three classes of disputes went before the Praetor Peregrinus:
nuity was the responsibility of the head. Correspondingly, he en- Oa }those involving Romans and foreigners, (2)those involving for-
joyed’nanus with respect to the entire household; (2 arriage was eigners or different communities, and-87 those involving foreigners
purpose,
an institution for the perpetuation of the familia. For this of the same community but residing in Rome. As an expedient way
it must be fustae nuptiae, or civil marriage, Le., according to jus of settling disputes, the Praetor applied those principles common to
civile; (3)"Civil law marriage gave ghe husband manus over the the local legal systems throughout Italy. This led in time to the
wife, and the children subject to the*patria potestas; (4VWhere no development of a common system throughout Italian law. When
children were born to the marriage, children were introduced into the Praetor issued his Edictum Peregrinum, along the same lines
the familia through adoptio. This was done by the Comitia or by as the Edictum Urbanum, he embodied in it those principles of law
mancipation; (5YThe aggregate of rights exercised by the paterfa- and modes of procedure which were common to the several commu-
milias constituted the patrimonium. These included administra- nities.
n
tion of the sacra, powers over the members of the familia, dominio
In the provinces, a similar development took place. The pro-
over things belonging to the household; (6)/The paterfamilias was
to designate a person to succeed him as his heir, insti- vincial governors (propraetors, proconsuls or praesides) performed
authorized
the same function as the Praetor Peregrinum in resolving disputes
tuted through the testamentum; (7 Upon the death of the paterfa-
involving provincials of the different cities or between provincials
milias, those under power became Sui juris, and succeeded to the
and Romans. Common elements and principles were abstracted
patrimonium as sui heredes. Those with defective competence among
ed daughter, infant son and a son from the rules obtaining in the several communities and were em-
them such as the widow, unmarri ip(Ni Qrors Norsh
nl
underage came une tele oe er Sacka- bodied in a provincial edict (Edictum,Provinciale),
At the middle ant late Republic stage, the sources of law "4 Jus gentium came to be applied to the whole body of supple-
mentary law thus developed. Its elements were (1)the common law
were:
of the Italian communities and (2) the common law of the provin-
1. Leges — enactments of the Comitia Centuriata (one of cial communities. :
the assemblies of the whole Roman people)
These two systems were at first totally separate and distinct
2. Plebiscita — enactments of the Concilium Plebis (the
both in origin and application. But the superior features of the jus
assembly of the plebeians) gentium came to be recognized. Slowly, the principles of jus gen-
3. Senatus Consulta — enactments of the Senate, which tium came to be absorved in the jus civile. The agency of incorpora-
had acquired the force of law by custom and usage tion was the Praetor. He introduced many of its concepts and prin-
INTRODUCTION TO LAW | PART II — THE WORLD’S LEGAL SYSTEMS 57
56
ciples into his own edict. Whenever the technicalities, rigidities dictates of reason, Equity was made to serve two functions. First, it
and other defects of the jus civile could lead to unjust results, the was a standard for evaluating positive law, exposing its limitations
equitable principles of jus gentium readily came to hand. Soon, and defects. Second, it provided a system of supplementary justice,
even Roman citizens themselves began invoking jus gentium to by providing remedies where the law was deficient, harsh or un-
meet cases for which jus civile provided no remedy or was other- { just.
wise defective. It came to be referred to as jus aequum or aequitas. 1. The emphasis on general principles as a basis for resolv-
In time, a large part of the jus gentium came to be absorbed in ing specific legal problems led to the development of general con-
jus civile through Edict. When the edict became perpetual, the jus cepts and precepts which gave Roman law in its period of maturity
gentium embodied in it became a constituent of the Roman law. the character of a scientific or universal code. These are seen in
Thus, jus civile in its extended or general sense had two distin- their definitions and maxims.
guishable and essential components: (4) those rules derived from
| a. No one should be enriched through ariother’s disad-
the old jus civile, and @) those derived from the jus gentium. This
vantage or injury (Pomponius).
blend of law and equity was gradually refined into one system of
jurisprudence administered by the same set of tribunals. b. What is ours cannot be transferred to another with-
This idea of natural law influenced the further development out an act of our own (Pomponius).
of Roman law in several directions. It provided a higher standard c. No one can transfer a greater right than he himself
by which the ius civile could be criticized and towards which it
possesses (Ulpian).
could develop. Hence, the ius civile was more easily purged of its
archaic, rigid and cumbersome features. On the other hand, the d. They are not defrauded who know and consent
concept of natural law gave ius gentium the status of a law higher (Ulpian).
than the ius civile. Jus gentium came to be regarded, not as gen-
eral positive law, but as reflecting the universal principles inherent e. He is free from blame who knows but cannot pre-
in the nature of man. Hence, iusgentium came to be identified vent (Paulus).
with jussnatwrale. The result was belief in the superiority of the
praetorian law, which incorporated the ius gentium over the tradi- 2. They laid down the foundations for jurisprudence in their
tional ius civile. Through imperial legislation and juristic interpre- preception of the relations between law and morality. Law is founded
tation, Roman Law was gradually purged of the technical and cum- upon morality, but the two are distinct. They have common rules,
but insofar as a rule is legal, it is only because it has the sanction
brous doctrines of the ius civile and assimilated more and more the
of public authority. Thus, they provided the criteria for defining the
ius gentium.
province of jurisprudence.
A third impact of jus naturale on Roman Law was the shift in
the conception ofquity. We have earlier noted that the more gen- 38. Through the concept of ratio legis or ratio juris, they
eral precepts of ius gentium, by virtue of their universality, were developed equitable rules of interpretation.
collectively referred to as jus equum or equitas. In this sense, Big= a Incase of conflict, the spirit prevails over the letter
wityewas but a division of positive law, designating its more pro-
of the law.
found or broader precepts. But with the identification of ius gen-
tium with jus naturale, the concept of Equity underwent a qualita- %. Where a law is susceptible of various interpreta-
tive change. The original praetorian¢Bquity, which was a part of tions, that interpretation will be preferred which will occasion
positive law, gave way to the Natural@quity of the jurists, which the least injury.
summed the standards of justice dictated by reason. Thus,@quity
x Where a law leads to an unjust result, it must be
came to be divorced from Law, and henceforth, equitable rules were
interpreted with reference to rules of a similar character.
distinct from legal rules. Being founded on natural justice and the
9. Jus Novum (new law) consisted of the constitutions of

the emperors.
4. Rules on restrictive and extensive interpretation to
attain just results. The jus vetus were compiled into an earlier code (codex vetus)
published in 529. Thereafter, Justinian commissioned several works
4. Through indirect legislation via ius respondendi, and
which bécame part of the Corpus Juris Civilis, as follows:
through their influence on the legislation of the emperors, they
developed many general precepts and principles of law. Codex Constitutionem — codification of all imperial
enactments (constitutiones) into ten books with repeal of all ordi-
ce. Classical Period nances excluded.
During the classical period, the sources of law were: Revised Codex — Collection of imperial ordinances or
1. Imperial constitutions, chiefly in the form of rescripts constitutiones from Hadrian to Justinian numbering 4,662 divided
into twelve books. 2
and edicts. WU - feligm of fiab AMMdevs
2. Responsa prudentium, pursuant to lex de responsis 4 Digest (Pandects) — Collection of excerpts from the works
prudentum, or the law of citations. By this, all the works of Papinian, on classical Roman law by 39 jurists. The final work consisted of
Paulus, Ulpian, Modestinus and Gaius, and these only, were de- 9,123 extracts arranged into fifty books under various titles accord-
clared to have legal authority. ing to subject matter. It was published as an imperial statute in
A.D. 533.
3. Codes promulgated by imperial authority.
J. Institutes of Justinian — official elementary textbook on
Three classes of Codes were produced: (1)’Pre-Justianian Codes Roman law for students in law, based chiefly on the Institutes of
of the East; (2) The Roman Codes of the West; (3) the Justinian
Gaius.
Code.
A Novellae Constitutiones post codicem — new imperial
Among the Codes in the East which preceded Justinian’s were: ordinances or statutes issued after the revised Codex dealing with
(a) codex Gregorianus, (b) codex Hermogenianus, and (c) codex various subjects and altering the law on many points.
Theodosianus. The first two were made by private persons and were
never made official. The third code, however, was framed by author- The Corpus Juris Civilis of Justinian therefore consists of the
listed: (1) Godex»constitutionem; (2) Digesta or
ity of the emperor Theodosius and enacted as law in A.D. 438. The four works above
Theodosian code had great historical importance, first, because it is Pandectae; (3) Institutiones; and (4)\Novellae.
a fruitful source of the legislation of early Christian emperors, and After the gradual collapse of Roman rule in the west, about
second, because it was made the basis for the codification of Roman A.D. 500, and its replacement by the rule of Goths, Franks, and
law by the German conquerors following the fall of Rome. Lombards, the conquered peoples of Italy, Gaul, and Spain had
Following the fall of Rome, the German kings ordered the been left to live according to their own Romanized customs. But
compilation of Roman laws for the benefit of their Roman subjects Roman legal science had been buried, apparently forever.'5!
A) Ediettm Theodorici, published in A.D. 500, which was made X€ For five centuries the Roman empire had been a ruin and
binding on Ostrogoths as well as Romans; (a Lex Romana
Justinian’s lawbooks had long been unknown or unstudied. Sud- LS
Visigothorum or the Brevarium Alaricianum, which\was published denly in the 1100’s, the city of Bologna became the center of one of
in A.D. 506 and made effective in southern Gaul an the whole of
the greatest intellectual phenomena recorded in European history
Spain; and (%) and the Lex Romana Burgundionum, which was
—- the resurrection of Justinian’s law-texts. Those resurrected books
published in 517 and governed Burgundy.
forma Laws Cbd Lay
The law of the Empire at the time of Justinian had two parts:
of leges, senatus consulta, 151Wigmore, op. cit., p. 1021, Lav tbed rewadlid
1. Jus vetus (old law) consisted
and writings of jurists especially those with jus respondendi. 1. os titaty Linh He guudiakt Apne
Ao Dignk
were destined once more to impress the Roman legal system not These commentators besides lecturing in the law schools, had
only in Europe but far beyond it.15? a large and lucrative practice in giving opinions. Their peculiar
status can best be understood from the story of Shakespeare’s Portia;
A young genius named Irnerius, about A.D. 1100, was revered
Portia is called into court by the party to give an opinion, which is
by his successors as the founder of the new learning, and that he taken as the ground of decision by the judge, and yet the jurist
began to lecture on Justinian’s Code and Digest.!*? ree a fee from the party. Searching for a brief illustration of
In this great movement, Irnerius’ role was to exalt the: pure theSe opinions, one comes upon Bartolus’ opinion on the wine-sell-
science of the newly resurrected Roman texts. He and his immedi- ing statute; which seems to reveal that clients were as ingenious
ate successors, known as glossators, descanted on these texts with then as now in evading a sumptuary law:
glosses, or explanations.4 “A city statute provided that no one should sell wine at retail,
The glossators who followed Irnerius were the so-called Four under a penalty. But a certain dealer used to sell to a customer a
Doctors, Bulgarus,Martinus,dacobus and/Hugo. Then came 4zzo, cask or two casks or a barrel ef wine, and so on to other customers,
who was called in his day “master of the masters of law”; he was so and then the buyers took delivery in flask and jugs of various sizes.
authoritative that the popular phrase ran: “Chi non ha Azzo (You The question is whether the seller has incurred the penalty. As to
prepare, the jurist’s robe you’ll never wear).” The last and most this, it must be understood that some measures and weights in
famous of the glossators was Accursius, whose gloss supplanted common use are termed gross or large, others are termed retail or
those of all his predecessors and even the text ofJustinian. Of his small; see the law of measures; ... . and those measures have to be
gloss it was said: “Quidquid non agnoscit glossa nec agnoscit curia inspected by the custom of the city; see the law of sales. .
(The law is what is contained in the gloss).”
. . Now, in the said laws, a barrel is gross measure while
Up to this time, the Justinian books had been studied as pure bottles, flasks, etc., are termed retail measure. Hence, a person
science, much as Kant’s Philosophy or Mill’s Logic might be studied selling by the barrel is not selling at retail. And the fact that this
today. But after two centuries of this, a new type of jurist arose, party measured it out to his customers in retail quantities is imma-
destined to apply this pure science to the legal practice of the day. terial; for the statute speaks only of the sale.
These men were known as Practicians, or Commentators. They
gave opinions on Jaw-classes and wrote independent treatises. These “So say and advise.
commentaries were in style a marked advance on the glosses or “I, Bartolome of Sassoferato, doctor of both laws, and have
marginal notes. These men now for the first time applied the an- signed in testimony thereof and affixed my seal.”!°"
cient principles of the Roman texts to the Germanic and feudal
customs. Roman law began to be transformed into Italian law.!55 During the 1200’s, 1300’s, and 1400’s the thousands of foreign
students had gone back North and West carrying the new advanced
The commentators were also called the Bartolists after the ideas of Roman Law. Italian doctors were invited abroad. Faculties
greatest of them Bartolus, of Sassoferrato, who first lectured at of law sprang up in Spain, France, Germany, and the Netherlands.!°
Bologna at the age of twenty and achieved the most extraordinary
celebrity, although he died in 1357 at the age of forty-three. He Meanwhile, by the third century after Irnerius, Italy’s star of
wrote commentaries on all the titles of the Digest, and it was leadership in Roman law was waning. In the 1500, the primacy in
commonly said that “nemo iurista nisi sit Bartolista (No one is a Roman legal scholarship passed to France; in the 1700’s to Hol-
jurist who is not a Bartolist).”!°6 land; in the 1800’s to Germany; for as political, intellectual, and
commercial influence pushed gradually west and north the centre
1527d., pp. 982-983.
1537d., ‘pp. 983, 985. ;
547d. pp. 991-994. RE
l5Wigmore, op. cit., p. 994. | 1857Wigmore, op. cit., p. 996.
‘56Seagle, op. cit., pp. 167-168. 1587d., pp. 1007-1008.
on
of European forces, so also the primacy in Roman law studies gradu- man Empire; one-half of its judges must be princes, but one-half
ally shifted, from century to century, through four centuries." must be doctors of the new Roman law.!©2
In France, the great name was Cujas. Roman law had in German legal learning in Roman law culminated with Savigny
France by the 1500’s become the fashionable study for the nobility. and Windscheid and Von Ihering in the 1800’s. The development
At some courses, four thousand hearers are said to have attended had-been slow; for, naturally, the pure Germanic rules of the north
— incredible as this may sound. New and improved methods of were slower to yield to the new Roman influence than the institu-
research and exposition had been devised, and Cujas was their tions of Italy and south France and Spain, which were already half
6°
greatest exponent. Roman or more.!63
By the 1700’s, the primacy had passed northwards to the Neth- This great task of nationalizing the law was first achieved in
erlands. Of the Senate Hall at Leiden University, the German his- France in the early 1800’s but only after three centuries of effort.
torian Niebuhr has said, “No locality in Europe is so memorable in Charles Dumoulin, a fiery patriotic lawyer of the 1500’s had al-
the history of science.” Hugo Grotius was learned in Roman law, ready dreamed of a single code for France. His dream of a national
though he left his imperishable mark on international law; his code was premature. But in the next century, about A.D. 1665, a
work on the Law of War and Peace, appearing in 1627, was placed partial success was achieved by that great minister of Louis XIV,
on the Index Expurgatorious by the Pope (though recently taken Jean Baptiste Colbert, a man of Scotch ancestry. Louis XIV aspired
off), yet it became the Bible of lawyers. But in the Roman law field to be known as the Justinian of France, and Colbert was his
the Netherlands at this time, under the scholarship of men like Tribonian.!64
Noodt, devised new methods. The “methodus Noodti,” oftener termed In the next century, the 1700’s however, this task was brought
the “elegant method” now became more fashionable than the “mos nearer by Robert Pothier. Pothier was professor at Orleans, but
Gallicus” of France.'6+ also served for fifty years on the bench. During the last twelve
But by the 1800’s, the primacy in Roman law studies passed years of his life, this extraordinary man wrote a comprehensive
to Germany. As early as A.D. 1500, the new Roman Law science series of twenty-six separate treatises, covering the whole civil law.1&
had made its way into the German faculties, and was knocking at The codification of the civil law of France was the achieve-
the doors of the courts. Hundreds of law students had gone to the ment of the Revolution. The jurist Cambaceres, in 1796, afterwards
law schools of Italy and of France during the 1200’s, 1300’s and Second Consul and Minister of Justice under Napoleon, was the
1400’s; for example, a single noble family of Germany in the 1400's prime mover, with a draft for a national code, at the very opening
sent seven of its scions to Italy for a doctor’s degree in law. These of the Revolution. But dissensions blocked his plan. It remained for
men, trained in the new legal science came back and spread its the quieter period of the Consulate to resume the labors of codifica-
gospels. They took service with princes, and gave clear advice in tion. Napoleon, now First Consul, dreamed like Frederick of being
the political struggles. They founded law schools; the first German a great lawgiver. The time seemed propitious. The excesses of the
faculty of law was organized at Heidelberg in A.D. 1498, four cen-
Revolution had been curbed; yet its more permanent achievements
turies after Irnerius; and others followed shortly. Soon these doc- remained to be embodied in the form of a civil code. After four
tors of law were made judges by the princes. The German emperor years of legislative labor, the Civil Code was proclaimed on March
encouraged their Roman law because it was imperialistic and in
21, 1804 under the title, Code Civil des Francais.1®
A.D. 1495, he established the Chamber of Justice of the Holy Ro-
1627d., pp. 1015-1016.

16374. pp. 1018-1019.
159Jd., p. 1008. 16474. pp. 1022-1024.
1607. 157d, pp. 1024-1027.
161fq¢., pp. 1009-1011. 166Seagle, op. cit., p. 284.
The title of the Code Civil was changed to Code Napoleon in against it by the two leading contemporary authorities in Spain,
1807. The original title was restored in 1816, reconferred in 1851, Sanchez Roman and Clemente de Diego, in their treatises.!”°
and again withdrawn in 1870. The present title is simple Code
There are two standard commentaries (commentarios) on the
Civil.167 civil code, possibly of equal value. Manresa, a justice of the Su-
The Code Civil was a model of representative political method. preme Court and a member of the Code Commission, has published
The entire bench and bar of France took part: scores of professional a 12 volume edition with the collaboration of various lawyers.
meetings were held, hundreds of reports were filled; the drafts Scaevola’s “Civil Code” is an even more extensive commentary. It
were debated in successive stages in various legislative bodies. The embraces 24 volumes and 2 supplements, the latter dealing with
printed proceedin gs on the codes fill forty volumes. Napoleon, who certain special topics.!7!
was then thirty-two dominated the debates on the draft of the code Roman private law, as modified by national or local family
in the Council of State and prepared himself for the occasion by customs or land customs and hy modern legislation, survived in
reading law-books. In his later days, as a captive at St. Helena, he substantially all the European countries which formed part either
said: My glory is not to have won forty battles; for Waterloo’s defeat of the ancient or of the medieval Roman Empire. Its many strong-
will destroy the memory of as many victories. But what nothing holds in Western Europe are Italy, Spain, Portugal, France, Swit-
will destroy, what will live eternally, is my Civil Code. 188 zerland, Germany (including the German and Slavonic parts of the
The Code Civil is a neatly arranged, systematic work. It has a Austor Hungarian Monarchy), Holland and Belgium, From Spain
very short preliminary title, which is the remains on an entire book or Portugal it has passed to Mexico, Central America, South America,
of six titles embodying doctrinal opinions or philosophical asser- Cuba, Puerto Rico, and the Philippines. From France or Holland, it
tions in the original draft. Then followed by the three books of the has passed to the Canadian provinces of Quebec, to Louisiana,
code dealing with the law of persons, property, and obligations. The Ceylon, Mauritius, British Guiana, South Africa, French Africa,
greatest praise has been bestowed on the Code Civil for the preci- and the Dutch and French East Indies. From Germany, it has
sion, clearness, and simplicity of its language. Finally, the code passed to German Africa. To these areas must be added, in Western
purported to be a complete statement of the civil law and was to Europe, Scotland which, since the establishment of Court of Ses-
abrogate entirely all the pre-existing legal systems. I know nothing sion in 1532 has built up its law out of Roman canon-law materi-
of civil law, said Bugnet, one of its early expounders, I only teach als. As outlying provinces, more or less closely connected with the
the Code Napoleon.!®© system of Roman private law, may be mentioned Greece, Servia,
Bulgaria, Romania, Russia, Poland, the Scandinavian countries and
The Spanish Civil Code was promulgated on July 24, 1889. Its Japan.!72
general plan was not unlike that of the Code of Napoleon. Mr.
Leve, a French judge, writing in 1890, declared it to be a more 8) Celtic legal system
scientific book than the Code Napoleon. Of course its compilers had
the advantage of about a hundred years of discussion and commen- The/@elts (or Kelts) were a great nation, possibly the descend-
tary in Continental Europe on these subjects, to say nothing of ants of the prehistoric glacial people, who about 600 B.C. invaded
similar work that had been done in the three Americas. It is inter- Gaul — what is now France and Belgium — and the islands of
esting to note that two eminent foreigners, Judge Leve and Judge Great Britain — Scotland, England and Wales, and Ireland.
Lobinger compliment it highly, whereas severe criticism is levelled Vercingetorix, the famed Gallic leader was the physical type of the
170Howe, Studies Civ. L. (2d Ed., 1905), pp. 143, 145.

167d. 171Palmer, Guide to Law and Literature of Spain (Washington, 1915), pp. 36,
38, 41, 40, 42, 49.
1687 d., p. 286.
172Taylor (Hannis), “The Jurisprudence of Latin America,” Va. L.J., pp. 3, 4.
169Wigmore, op. cit., pp. 1027-1031.
long,
ruling class among the Celts — tall, light-complexioned, with
reddish or yellow hair.!”8 Caezar tells us the Druids as professional dispensers of jus-
tice: “Among the Gauls, the Druids decide almost all disputes, both
One of the most momentous days in all European history was public and private. If any crime is committed or violence done or
the
the autumn morning in the 52 B.C. when Vercingetorix and any dispute arises over inheritance or land-boundaries, they are
Julius Caezar. After the Roman con-
united Gauls surrendered to the ones who render judgment, and fix the compensation ‘and the
is,
quest and the Germanic conquests five centuries later, that penalty.”!
entire Celtic race had been subjuga ted
about A.D. 700, almost the
four as “brehons” from
and either extinguished or absorbed. There remained only *r,gD ruid jurists, in Ireland, were known
small areas where it survive d in isolate d and primiti ve purity — “breth,” a judgment. These Brehons were the repositories of the
Wales, Ireland, upper Scotland and Britanny.!74 customary law. When they spoke in the assembly, their judgments
were implicity obeyed. The Druids’ power lay, not in physical or
The history of the Celtic legal system falls naturally into three political force, but in their influence as priests of religion and magic;
Britain,
periods. The first, to Julius Caezar’s conquest of Gaul and for the imaginative Celtic race has always been most susceptible to
to about A.D.
is the period of political independence. The second, the supernatural, and especially to religion. The judgments of the
the Celtic legal
1500, is the period of the surviing branches of Druids were enforced by their own magic powers; they excommuni-
final
system, the Welsh and the Irish. The third period sees the cated the disobedient, and their solemn curse was the deepest dread
dissolution of these two.!”® of the Celts.17
The authentic history of the Celts commences with the First The influence of the Druids over the minds of the people,
of
Roman invasion. They were hopelessly divided into a number which made it easy for them to conjoin civil authority with the
which were constan tly at war with
small independent sovereignties sacerdotal, in the end led to the destruction of the Druidical sys-
Dru-
each other. The religion then in vogue was the religion of the tem; for the Romans found no other way of securing their con-
ed every depart ment of the govern ment;
ids, whose influence pervad quests over any of the Celtic nations than by exterminating the
imper-
and by its power over the minds of the people, supplied the Druids. Augustus, Tiberius and Claudius, a few years after the
The priests, who called themselves Druids, were
fection of laws. Conquest, in the first century A.D., not only suppressed the reli-
of
supposed to be powerful enchanters. They were the real masters gion of the Druids but exterminated the entire fraternity itself.
chiefs, or kings, were mainly their lead-
the early Celts; the tribal Thus, disappeared, with the Druid class, the Celtic legal system in
ers in battle.!”6 Gaul and Britain.!®°
it
Druidism ackowledged a god that delighted in bloodshed; The second period is the period of the surviving branches of
the contem pt
taught of the immortality of the soul, and inculcated the Celtic System namely the Irish and the Welsh. Of these two
in
of danger and death. The Druids located their places of worship branches, the Irish was the earliest recorded and most fully devel-
immens e
the midst of groves of great trees and built temples of oped.
n
stones open to the sky. The worship of the Druids includedhuma
sacrifice. They possessed considerable admi nistrative powerfo
r they In the first period, or Heroic Age, pagan Druidism still flour-
kept the people in constant terror of them. Fragments of some of ished and the law is transmitted only by memory of the Brehon
the Druidical temples and altars are still remaining at Stoneh
enge judges. In the second period comes Christianity, and the formula-
on Salisbury Plain, and another at Kitscoty House in Kent.!77 tion of the written rules of law, through the efforts of St. Pathric, a
missionary who was a Celt by birth but a Roman citizen, who came
op. cit., p. 30.

——T?3[andone,
174Wigmore, op. cit., pp. 660-661.
175] d,, p. 657.
\"6[d,, pp. 665-667. 178Wigmore, op. cit., p. 662.
177Landone, op. cit., pp. 59-60. 1797q., pp. 667-669.
1807q., p. 669.
68 INTRODUCTION TO LAW PART IT — THE WORLD'S LEGAL SYSTEMS 69
to Ireland about A.D. 430. In the third period, the Danish and the In the meantime, however, in 1215, had come the Magna Carta
Norman invasions gradually paralyzed all political progress, but to save for a while the ancient laws of Wales; for Llewellyn the
the Brehon jurists continue to practice their law. In the fourth Great had joined the English barons in their successful struggle
period, the political ruin of Ireland is followed by the disappear- against King John and as his reward, chapter fifty-six of the Magna
ance of Brehon law.!8! Carta provided that Llewellyn’s son, who had been held by John as
As to the other surviving branch, The Welsh Code was not a hostage, should be given back, and that disputes over land held
written down until about A.D. 900, some five hundred years later in Wales should be decided by the law of Wales.
than St. Pathric’s day in Ireland?‘King Howel, the Good, after whom And so for a while, Welsh law was preserved for Wales. But by
the code is named, convened an assembly of all the chieftains, seventy years later, a far different king from the weak King John
bishops, and jurists, to record the ancient customs. This Code of had resumed the task of subduing Wales. Edward I, the great or-
Howel the Good, or “Hyvreithu Huvel Dda” was then preserved in ganizer, was building around Wales a ring of powerful castles,
three copies. !82 whence he could muster his armed forces. In the year 1284, after
This code was first written down long before Justinian’s books crushing the power of Llewellyn, the Great’s grandson (another
were revived in Italy, and it seems purely Celtic, from beginning to Llwellyn, and an equally courageous Welsh leader), Edward I called
end. And yet, one of the evidence of subtle wide influence of the in English parliament at one of these great castles, Rhuddan; and
revived Roman law of the 1100’s is that in some mysterious way there was enacted the statute of Rhuddan, 12 Edward I, which
(presumably at a later revision) the famous phrase of Justinian’s made Wales an appendage of the English crown, and forever ended
opening chapter (which is found also borrowed in Bracton and in the political independence of the Welsh.
early Slavic books) is here found embedded, word for word, in the
Welsh language, in the middle of Book XVI (c. XX, par. 23), “Three Its final extinction was the work of the Tudor Dynasty. In
things the law enjoys upon all: to live honestly; to cause no vexa- 1535, the statute of 26 Henry VIII, chapter 25, uniting Wales com-
tion or harm to another; and to render to every one his due.”!®8 pletely to England, declared that “in order to extirpate all and
singular the sinister usages and customs of Wales,” hereafter “the
The Third Period saw the dissolution of the Celtic System.
laws, ordinances, and customs of this realm of England, forever,
These two branches of the Celtic system, after a gradual decline,
and none other laws, ordinances or statutes, shall be had, practised
perished within a century of each other. In both cases, the end
and executed in the said country or dominion of Wales and every
came by force of conquest.
part thereof.”
The Welsh was the first to end. For two centuries after the
Norman conquest of England the Welsh held out in their moun- The same century, the 1500’s that witnessed the formal ex-
tains and valleys of the west coast. In the late 1100’s, came Llewellyn tinction of the Celtic legal system in Wales saw the like struggle
the Great, the best ruling mind that had ever arisen in Wales; he is drawing to a close in Ireland.
still their national hero. He made a last effort. to unite the Celtic Under Henry II and John, some Norman-English law had
tribal factions of his people, by establishing a national council, been brought over to Ireland by the invaders.
which he summoned at Aberdovey, in one of the picturesque valleys
of the coast. Under Henry VIII and Elizabeth, the physical conquest and
colonization of Ireland proceeded pace. But its law remained, in
name at least, till the next century. Finally, in 1618, James I called
an Irish parliament, and this body went through the form of de-
claring the Brehon law abolished. English law was substituted,
1817q., pp. 669-671. and an English courthouse was later built — the Four Courts — in
1827q. pp. 700-702. Dublin.
1837 q,
PART Ii — THE WORLD’S LEGAL SYSTEMS 71
his fierce vassals — later known as “boyars,” and famous in Rus-

9) Slavic legal system
sian folklore — organized the Slavic people. These Germanics, how-
The four principal Slavic nations that stand out most indi- ever, were essentially traders; and the earliest document of Rus-
vidually and compactly in legal history are the Russian, the Serb, sian history is a treaty of commerce between Oleg and Greek Em-
the Bohemian (or Czech) and the Polish.®4 peror at Constantinople. Their chief trade was in slaves. 188
The original home of the Slavic race seems to have been in the Meanwhile, under Duke Vladimir, about A.D. 1000, the Rus-
dreary marsh-lands of Galicia. But the Bohemians and the Poles sians accepted Christianity from the Greek missionaries coming
wandered thence west and north, while the Russ and the Serbs from Constantinople. The Greek alphabet was now adapted by the
spread east and south.!® missionaries to the language of the Slavs, who had no books and no
alphabet of their own but only a few crude runes, or word-symbols;
The legal evolution of Russia falls into four stages: first, the
and thence, forward the Greca-Roman religion, morals, and law
establishment beginning in the 9th century of a ruling»class of
dominated in Russian life.189
independent princes possessing all the land and controlling the
people on the land; the next, the submergence of the country, in the The first traditional lawgiver is Yaroslav, the Just, son of
18th century, by the Mongol conquerors»whose influence gave a Vladimir; he lived about A.D. 1200. This Code of Yaroslav was
new direction to government; then, the emergence, in the 16th called “Russian Truth” (“Pravda Russkaya”); and it was really
century, of the absolute rule of the Mosecewatsars and the final drafted or inspired by the Greek ecclesiastics, for the information
enserfment of the mass of people; and, lastly, the passing of the old of the church courts. It represents a mixture of Germanic, Slavic,
order and the establishment of communismsine!917. The legal his- and Roman-Greek elements. It was modeled on the Roman-Greek
tory of Russia during the first three stages is perhaps correctly law-books of Constantinople; and the Greek church had already for
reflected by Tolstoy’s definition: “Rules established by men, who three centuries been modifying the native Slav customs in family
have control of organized power and which are enforced against the and property relations.!%
recalcitrant by the lash, prison, and even murder.”!*6
In the thirteenth century, the Mongols swept in and over-
The people who were to be known as Russians lived originally whelmed Russia. Mongol rule introduced and enforced for two hun-
in scattered communities in clearings in the forests which covered dred years the idea of a state controlled by one prince who obtained
most of the region west of the Urals and stretched from the Arctic his authority from a single outside power — in this case, the Mon-
to the plains of north of the Black Sea. These people lived a com- gol Khan.!9!
munal life and maintained themselves by hunting, fishing, bee cul-
In the 1400’s, the Mongol empire was breaking up and the
ture, and very primitive agriculture. They offered no resistance to
many Russian chieftains were consolidated into an independent
the North invaders of thirteenth century who became their rulers.
kingdom under the Moscow prince Ivan III, known ever since as
These were bands of bold Germanic landrovers from Scandinavia.
Ivan the Great. Ivan III, by marrying the daughter of the last
This period represents primitive legislation and the foundation of
Greek emperor, made Russia the heir to the Greek Imperial tradi-
numerous separate principalities in Kief, Novgorod, Moscow, and
tions. Ivan III began the vast fortress-city and palace of the Kremlin,
187
elsewhere. which was thereafter to be the centre of Russian traditions of gov-
Oleg, the Wise, was the greatest of these early Northmen. The ernment and justice; and this second period now sees the establish-
second in time, he became master of Kief in the southwest. He and ment of political unity and a centralized feudalism.1!92
1887¢.,
189Tq., p. 770.
18474. p. 736. 1907d., pp. 770-772.
1857 q.
191Pratt and Moore, Russia, A Short History (1947), pp. 18-19.
1867q,, Seagle, op. cit., p. 4. 192Wigmore, op. cit., p. 772.
187Jd., pp. 768-770.
from a window in the less than thirty thousand laws and decrees were on record. So
In the Kremlin was the pal ace, and
a rope hung down, with a basket at the Peter appointed a codifying commission in the year 1700.1%
corner of the Throne Boom
and read the
end, and each the prihce might draw up the basket Ten successive code-commissions, one after another, appointed
petitions of grievance from his subjects . Even as late as the day of by six successive Tsars, each commission sitting for years at a time,
Peter the Great, A.D. 1700, it was still the popular custom to go to and deliberating through one hundred and twenty five years in all
the Kremlin walls,
the Cathedral of the Archangels, a church within without reaching a result. The report of the tenth commission,
on the tombs the petitions
containing tombs of the Tsars, and place dating about 1815, brought forth materials for a draft code; but got
read them; for he once he
of grievance and the Tsar would go and no further. No finished code or compilation ever matured.19%”
a court of justice there.1% Meantime, however, the sixth of these ten abortive commis-
IV (the
The title of Tsar, or Caesar, was first assumed by Ivan sions did attract wide notice throughout Europe in 1767-1774. It
on
Terrible), about A.D. 1550, and his strong character served to fix was appointed by Catherine #, the German-born wife of Peter’s
al absolu tism.
Russia util modern times the principle of person grandson, who had read the latest books of Beccaria, Montesquieu,
n the
Ivan was the Tsar who built the Cathedral of St. Basil, withi and other philosophers and reformers of the west. The Code As-
the world’s archit ecture ,
Kremlin wall, the most bizarre edifice in sembly had begun as a parade; it ended as a parody.!%8
He led the natio®
and a fitting memorial of his bizarre character. A real legal system arrived for Russia fifty years later under
with a crude co e
ably in its external troubles; and his name goes the wise and conscientious Emperor Nicholas I. He was inspired by
have debased an
of A.D. 1550. But his domestic government must his chancellor Michael Speransky. Speransky had started as a pro-
the founder of the
stifled all conceptions of law and justice. He was fessor of mathematics; he ended as one of the greatest legislative
ever after, and vio-
bureau of secret police, which cursed Russia geniuses of the century. It was his ambition to create a complete
lated all fundamentals of justice.1% legal system for Russia; and though he suffered long delays, and
A new era for Russia dawned under the Tsar Alexis, a con- even exile, he triumphed finally. In 1826, the new Emperor Nicholas
There had indeed
structive mind, who reigned from A.D. 1645. authorized him to assemble a commission of jurists. They first
whic h funct ioned also as a
been a Duma, or king’s privy council, spent four years in collecting and printing all the materials since
e an indep endent King’s
Supreme Court, and might have becom Alexis’ Code of 1659, in choronological order — making forty-seven
been an occasi onal Zemsky
Bench, as in England. And there had volumes, thirty-one thousand laws in all. They then proceeded to
have becom e a perma-
Sobor, or national assembly, which might digest these laws into a veritable code. The task occupied six years
nd. But these embryo
nent representative Parliament, as in Engla in all, and it is recorded that the Tsar Nicholas personally attended
institutions failed to mature.!® fe ne meeting and that every final draft was verified by
Peter I (1689- hini/“Syvod
Tsar Alexis was suceeded by his remarkable son
Zakonof” or “collection of laws,” was the name of the
this time, the administra- code. It was in fifteen books, containing forty-two thousand arti-
1725), usually called Peter the Great. At cles, and went into force on January 1, 1835; and every ten years or
nts courts, by
tion of justice was largely done in the local peasa so thereafter the intervening new annual laws were interpolated at
and morality. By the
unlearned magistrates, on the basis of custom the proper place and a new edition printed.1%
, the most pressing
time of Peter the Great, in the early 1700’s
of the ever-increasing
internal problem had become the codification For a thousand years miseries and oppressions were endured
and local codes which had accumu- by the Russian people, and the accumulated discontents of centu-
mass of decrees, regulations,
period 1600-1800, no
lated in the wide Russian territories. In the
1967... pp. 787-789.

1977q.
1937. 1987.
1947q., pp. 773-775. 197d, pp. 794-795.

195]¢., pp. 785-786.
INTRODUCTION TO LAW PART II — THE WORLD’S LEGAL SYSTEMS 75
74
ries resulted in the March revolution of 1917. They killed their tsar dent of the Presidium of the Supreme Council. There is a Supreme
and all the members of his immediate family as well as many Court and a Ministry of Justice. But the administration of justice
princes, grand dukes, army officers, landowners, and government presents a dark picture. Many people considered dangerous to the
officials. The Kerensky provisional government of the intelligentsia state never saw a court or prison; they were seized, examined, and
took charge. However, it was overthrown by the Bolsheviks who sentenced in secret by the GPU, the secret police organization.2%
eventually gained a mastery over Russia and established a commu- The Civil Code of Soviet Russia, adopted in 1922 is the only
nist government? civil code in the world that is fundamentally different from any
In 1918, a Constitution was drawn up defining the Russian other. The very existence of a civil code in Soviet Russia is some-
system of government, with the soviets (or council) of workers’ and thing of an anomaly, and is explained only by the fact that the
soldiers’ deputies as its basis. By 1935, the Soviets felt that their X abolition of private property is not yet complete. The form of the
new society was sufficiently established so that their old constitu- Soviet Civil Code bears a striking semblance of other civil codes so
tion was not adequate. Consequently, a commission was appointed far as the number and titles of its books are concerned. But a closer
to amend the constitution in order to provide “the further democra- examination shows that the form has been largely emptied of con-
tization of the electoral system” and “the more precise definition of tents, a circumstance that testified to the small importance of prop-
the social-economic basis of the constitution.” A new constitution erty in the Soviet System. There are only 435 sections in the Soviet
was finally adopted in December 1936.?°" Civil Code, including the provisions on family law.?°4
What kind of government did the Constitution of 1936 pro- The most dramatic developments of the last seven years saw
vide? There are three most essential facts about it. First, it is the break-up of the Soviet empire and of the Soviet Union itself.
designed to guarantee the socialist economy, whereas most other Socialist law is being abandoned and free enterprise is gradually
governments in the world aim to guarantee the continuation of being restored.
capitalism. It was written into the constitution that citizens are
duty-bound to safeguard public socialist property. Just what did 10) Germanic legal system ~
this mean to the individual Soviet citizen? Could he own anything? The Germanic legal system falls into four stages. First was
Yes, he could own anything except a factory or shop or farm on
the prehistoric period of the Vikings, the sea-rovers of the North,
which he would hire other people to work for him. He could own his and the Goths; the landrovers of the East, when they stayed in
house and all his personal belongings. He could have a vegetable their northern and eastern homes up to A.D. 200. comes the
garden, a cow, and chickens for his own use. He could even own
long period of Goth migration south and west.and their establish-
some machinery — for instance, woodworking tools with which he ment in the provinces of the Roman empire, ending with the forma-
might make furniture for his use or to sell to others. But he could tion of the great Germanic empire under Charlemagne in A.D. 900.
not hire anyone to help him. In other words, the socialization is The third period was from A.D. 800 to 1400 claguggterized by the
applied only to what are called the basic means of production.? fusion of races and later by the localization of the law. The system
The Bolsheviks do not believe in what they call a “division of entered its last period about A.D. 1400 when it underwent trans-
powers” in their government. The Supreme Council not only is the formation by Roman and Papal law.
legislative authority but is also supreme in executive and judicial Germanic justice, as it emerges into history, is purely secular.
matters, because it appoints the cabinet and the supreme court. There was indeed a god or two, called sometimes Thor, sometimes
~—~fhe-man sometimes referred to as the Soviet President is the presi- Forsete Thor, as god of Law and Order, Forsete, as god of Jus-
tice.
200Pratt and Moore, op. cit., pp. 94-100

2Ud., p. 196. 208%q., pp. 213-214.
20274. ~———__24Seagle, op. cit., 295
But the justice of the whole tribe, as in primitive Greece and The Franks, or freemen, the tribes of Germans who succeeded
Rome, was democratic. The settlement of disputes between clans, in establishing themselves in Gaul, adopted a system of laws known
was done at the assembly of the people, the Al-ting, where all the as the Lex Salica, or Code of the Salic Franks, which was formu-
free men, armed, meet periodically, by a lunar calendar. The as- lated in the fifth century. It is the first of a series of a dozen such
sembly, or Ting, in Scandinavia took place in the open air, in a Germanic tribal codes officially compiled by royal order.2%
wooded valley, called Tingvallir, near an eminence, called the
Logberg, or Hill of Laws. This Hill of Laws was crowned with a The chief difference between the Roman and the Salic laws is
huge pillar, the Tingstone, and surrounded with stone benches for found in the attitude toward individual rights and toward slavery.
the chiefs and the bards. From this eminence, the voice of the The Roman laws were designed for the good of the state as a whole,
while the laws of the Teutons gave great attention to securing
Lawmen could be heard from afar.?°5
justice for the individual. Even slaves were to some extent consid-
At these Courts on the Hill of Laws, the parties to a dispute, ered, for they were permitted tq live in their own houses and only a
having duly summoned their opponents, pleaded their cause before portion of i earning or produce went to their masters.21°
the assembly. Then one or more of the Law-speakers, venerable or
clever men, like Nyal or Snorri, famed for their knowledge of the The Code, or Edict, of the Lombards, about A.D. 650, who
technicalities of procedure and of the tribal traditions, propounded finally settled in Northern Italy, was the nearest of kin to that of
the Saxons, who settled in England; and strangely enough, the
a decision; then the assembly, by their shouts, or with clash of
sword on shield, approved or disapproved the proposals of the law-
potent modern idea of a trust, in Anglican Law, has been traced to
a peculiar expedient first seen in Lombard law. Lanfrane, the prime
speakers for, as Tacitus tells us, the most steemed sort of applause
was the clash of weapons.2 minister of William the Conqueror was by birth of Lombard, who in
his youth was recorded in the Lombard chronicles as a famous
For centuries, the Goths of the east had been making booty- scholar in that law; and it was probably that early learning which
excursions into Roman regions. But about A.D. 300 and extending enable him later to grasp readily the related Saxon law, and gained
to A.D. 700, the entire race, retiring before the repeated invasions him equal fame in England in some notable lawsuits over the
of fierce Asiatic hordes, migrated west and south, in a series of church’s rights on Saxon soil.2!!
great treks, into what is now Germany, France, Netherlands, Bel-
gium, England, Scotland,
In Spain, by the second century of West-Gothic rule, about
Switzerland, Spain, Portugal, and Italy.
A.D. 650, the laws of the two peoples, Goths and Romans, were
They intermarried with the original Romanized Celts, absorbing or
absorbed into Roman civilization.27 amalgamated in a single compilation, the Forum Judicum, or (in
Spanish) Fuero Juzgo. The Fuero Juzgo continued to be quoted in
Here they met a softened climate, an easier subsistence, an Spanish courts in the 1800’s.2!2
intellectual religion, and a literature. They now displaced Roman
rule, establishing their own political system, and preserving their The eighth century finds Charlemagne master of the Ger-
own legal traditions. By the time of Charlemagne, A.D. 800, West- manic world — a great organizer and civilizer, instituting the first
ern Europe was one Germanic empire. In Spain, Northern Italy, official system of written education for his people in their new life,
and Southern France, a greater element of Roman institutions of revising the earlier codes of the various peoples under him, and
course persisted locally. But the general method of government was adapting the old democratic popular assembly to the difficult role
Germanic.2°8 of a council or parliament in what was now a royal autocracy.
Charlemagne’s parliament still met in the open air, in old Ger-
Sr
205Wigmore, op. cit., pp. 817-819. 209Fd., pp. 835-836.

2067,
210Landone, Civilization, an Appreciation, Vol. III, pp. 44-45.
207Td., pp. 838-839. 211Wigmore, op. cit., pp. 836, 837.
208Fgp 221d. p, 838.
a
a
manic style. One of Charlemagne’s first parliamentary decrees, called

7 capitularies,” established a system of sending his personal envoys ae The subtle bookish law
of Justinian, revived since A.D
on circuit to inspect the course of justice, “adjustitias faciendas”, 1€ universities, and the
efficient edure
and this method of his served later to develop the Anglican institu- courts devise
‘ d by able adminihistrators, o arch
popular Y
cus
gra
dua
igai
lly
iean
su eilanted
tion of trial by jury.2!8
Mic
toms, . the sim
:
ple rules of them,
;
of the Ger and the =a
manic system,216 roced a
=
But Charlemagne’s temporary empire had soon broke up into aes
hundreds of fragments; aa ae ee
and we find ourselves in the presence of a ae ee Maximillian, who
thousand local law-books. Each feudal lord had the power of jus- ession was filled
that he was the successor
Caezars 2 establishsheed the > I imperial o f
tice; the powers differed only in degree — the high, the middle, and i Chamber ai of Ju
court of appealal, e stice, ce ag
the low (as the phrase ran); the high justice along having the , and provide d that
should always one -ha lf of i
its csixe
power to impose the death penalty, In the words of one of the local \ be learned doctors of j
was
\ setting on the power of the new Roman ai| t
books of customary law: “the baron has all manner of jurisdiction the old G 7ermanmie
Ones in Germany, their "aihoe
ic “sc se ffen,” or lay-
in his territory, and the king cannot proclaim his command in the last
stronghold and the doom
baron’s land without the baron’s consent. Each region therefore ermanic legal system was of the 3
sealed 217
administered, developed, and recorded it’s own local laws and cus- _
11) Japanese legal system
toms independently, in local codes.2!4
The fourth and last period of the Germanic system — that is, au a tie first period of Jap
anese legal history (A.D,
from A.D. 1400 onward — is a period of transformation by Roman = -
= — constructive pronouncemen 600-1200)
Shichi t of law (A.D. 604)
and Papal law. The pure Germanic race (and this includes, of course, Kempo or Seventeen Max
ee Soren ims : Of the roypei al
the Northmen, the Anglo-Saxons, the Lombards, the Teutons, and afterwards known as a
prince-
= aintly sevaty for Shotoku Taishi (or Put
the Franks, who have helped build six or seven modern nations) his leadership in Buddhi as
mi (or, Master Prince of sm, and as ‘Poxote-
was not ordinarily inventive, socially or politically. At the end of the Law) for his leadershi
p in justice.218
seven centuries from the Salic Code, and after ample contact with atth e PO see macy of Shotok
Latin Literary stimulus, they had developed nothing better than : u, however like the
nts of he the Hebrews, é are ess Ten Com
the Mirroro of Sazony, whose still crude style we have seen; and yet — Ss entiall y not rules of law,
sey of a and social morality, Politi but ¢ ;
in a similar period of seven hundred years, the Romans had pro- consolidation of the new cal ly, the y fot edh ad.
gressed from the crude Twelve Tables to the imperishable science power, Socially, they rep territories und er a sin
i gle roy: I
resented the adoption
of Gaius and Ulpian.?15 indeed many of the passpas of Ga
ages 5 are recogni : :
And so the Germanic system, in its fourth period disappears, some of the Confucian Sages,?19 Bnvzable as literal copies from
by transfusion into another and new one. What happened was that, = eeeStart of the second period
alongside of it, for three centuries past or more, there had been nage oe of Japanese history from
be = an account of the growth
growing up three other legal systems — the Maritime law, the of great
and the implacable quarrels
universal Church law, and the-universal Roman law — all of them war was virtually con between th iv
tinuous : The rule of
independent of any race or territory. The last two were the most palace in the
he capital was finaally the int
i ellectual nee
extensive and influential. And learned doctors of Roman and Canon l] shattered by the
the rich military" barons, grow; seine
» wh who had been investee ed wit
law now took the place of the shrewd old Germanic “schoeffen” on the newly settled outlyi idh es large ae
fiefs j
ng territories. These bar
ons wea
—————
LK
2167 q.
2137 q,
217fd., pp. 862-863,
2147, pp. 879-841 18Aston, Nihongi, Chronicles of Japan from the Earliest Times
215%q., pp. 861-862 29%¢, to A.D. 697.
quired a semi-independence; and their clan-wars fostered rival am- sive domains a model of administration for the fiefs of the greater
bitions which succeeded in supplanting the palace rule. In the 1100's, semi-independent barons. The nation henceforth, for nearly three
a radical transformation took place. The palace intellectuals lost centuries, enjoyed a complete peace, internal and external, unpar-
their power. The national sovereignty was nominally left in the alleled in any European tountry.?24
person of the Emperor of Kyoto, the western capital; but the com- The Tokugawa Supreme Court of Yedo was given a federal
plete political power was now vested in a Regency, based on mili- original jurisdiction, for suits between parties from different prov-
tary feudal tenure, and located in the East at Kamakura. Thus, the inces; a certain confirmatory jurisdition was reserved for death
second period began.?2° sentences imposed on a vassal in the baron’s court for political
The first typical figure of this period is Minamoto Yoritomo, offenses; the baron’s judges, on cases within their own provinces,
who caused himself to be named Military Regent (Shogun) in A.D. often consulted the Tokugawa Court with a view to uniformity of
1192. A great administrator, he consolidated the new centralized law; and “in all matters” (says an edict of A.D. 1635) “the example
feudalism at Kamakura on the east coast; and as part of his gov- set by the laws of Yedo is to be followed in all the provinces.”225
ernment, he created the Monjusho, or Office of Inquiry and Deci- The Tokugawa legal system developed by native genius dur-
sion, essentially a court of justice.2”1 ing the third period might in the local course of events have pro-
Yoritomo was succeeded in A.D. 1225 by Hojo Yasutoki, who duced more distinctive fruits of independence. But at this juncture
ordained that the first fifteen days of each month be given up to international history diverted its destiny.226
justice; a bell was hung at the portal of the court (according to the The year 1853 marked the start of the fourth period of Japa-
old custom); and when a suitor struck it, his petition was at once
nese legal history when the long international seclusion of Japan
attended to; judgments were announced on the 10th, 20th, and
was broken. Commodore Perry came with his American fleet and
30th days of the month.?”2 demanded rights of trading. Other nations followed. In these trea-
s‘.
After a few years of experience with the new government, a ties the Japanese gladly conceded to the foreign nations the power
political code was promulgated in A.D, 1232 — the celebrated Jo- and duty of extra-territoriality, i.e, jurisdiction over the foreign
Yei Shikimoku, or Ordinance of the period Jo Yei. These were the nationals, as the price for refusing general rights of settlement
first laws promulgated in the Japanese syllabic writing (alongside throughout the land. Meanwhile, the powerful semi-independent
an)
of the Chinese ideographs). This ordinance, in fifty paragraphs, barons seized the opportunity to rebel, denouncing the Regency for
al contained the embryo of a new legal growth. Its main purpose was its subservience to the foreign nations. Two great families or clans,
to regulate the new military-feudal regime; and it contained few the Satsumas and Choshus, which had long been rivals of the
rules touching private rights.228 Tokugawa, combined to establish a new order. They abolished the
Shogunate, and resurrected the emperor as the supreme embodi-
The first great figure in the third period (1600-1850) is that of ment of power. Conveniently, a new emperor had just ascended to
the victorious Regent, Tokugawa Iyeyasu, in the early 1600's. Un- the throne and he was a boy, Mutsuhito; in 1868 he was reinstated
der the Tokugawa dynasty of the Regency (A.D. 1603-1868), the to authority and signed a Charter oath. This event — Mutushito
nation reached a permanent state of political equilibrium, economic became known as Meiji — was the great Meiji Restoration” a cardi-
prosperity and social quiet — comparable to that of France under nal event in history.227
Louis XIV. The Tokugawa Regency provided within its own exten-
220Wigmore, op. cit., p. 474. 2247d., pp. 480-481.

221Td., p. 475. 225d. pp. 481-482.
2227 261d, pp. 519-520.
2231d., pp. 475-476. 227Gunther, op. cit., p. 27.
82 INTRODUCTION TO LAW PART It — THE WORLD’S LEGAL SYSTEMS 83
inAasg came with the written constitution; Count Ito, its

¢
the year 827, when Egbert, King of Wessex, became the ruler of the
inspirer and draftsman, ranks as Japan’s greatest stateman of the entire country which received the name of Angelcyn, or Angleland,
last generation.?2° a term derived from the Angles. From this name, the modern name
England is in turn derived.?*2
Until its defeat in World War I], $ooan had for at least a
thousand years been a military state. In practice, if not in theory, In 1016, the wars that for many years had been going’on with
the army had always been the state itself — a totalitarian state — the Danes resulted in the Danish conquest of the Islands, and: Cnut
obsessed by what it conceived as a divine and imperial mission to established there the Danish sovereignty which continued till 1042.
conquer East Asia.?29 Cnut married Emman, the widow of Ethelred II, the former King of
the Anglo-Saxons. Upon the death of Cnut in 1035, his sons
Following its unconditional surrender to the Allies’ might in
Hardicanute and Harold, who-were also sons of Emma, shared the
1945, Japan has been placed under the supervision of an adminis-
Kingdom of England, but Harold’s death in 1040, left Hardicanute
trative commission set up by the Allies with the end in view, among
the sole ruler. He, however, died in 1042, and Edward, the son of
others, of democratizing Japan. The Emperor has, however, been
Emma by her former husband, Ethelred II, an Anglo-Saxon, be-
allowed to remain, as the symbolic head of the nation.”8°
came king. This Edward, by reason of his piety, is known in Eng-
Rising from the ruins of the second world war, Japan at present lish history as Edward the Confessor. Previous to the death of
is one of the economic powers of the world. Cnut, Edward had been living in exile in Normandy, and had been
brought up in the court of his cousin, the Norman duke. It is
12) Anglo-American Legal System obvious, therefore, that Edward was the product of Norman ideas
and Norman influences.?33
a. Common Law in England
In 1066, Edward died without issue. He was succeeded by his
History first dawned on England with its invasion in 55 B.C.
wife’s brother, Harold. The claim of Harold was disputed by William,
by the Romans, who found it inhabited by a Celtic people known as
Duke of Normandy, and the Norman leader landed in Sussex with
Britons. For nearly four hundred years, from A.D. 43, Britain was
an army of sixty thousand men. In the battle of Hastings that
a Roman province.??!
followed, October 14, 1066, Harold, the last of the Anglo-Saxon
The Roman legions withdrew about A.D. 410, leaving the Brit- kings, after a long and stubborn combat, was defeated and killed,
ons weak and broken in spirit; and in the middle of the century, William becoming the master of England.254
about A.D. 440, certain Teutonic tribes, the Saxons, the Angles, and
x What William found in England was a loosely organized com-
the Jutes, dwelling on the North Sea and the Baltic, invaded the
munity less advanced in culture than the Normandy he had Ilcft.
country, and for a century, these barbarians carried on their wars
The English state was hardly more than in embryo, and the execu-
of conquest against the Britons. They drove the Britons from the
tive or sanctioning power was but weakly developed. There were no
more fertile parts of the country and established their own settle-
distinct judicial tribunals, and no single system of law existed.235
ments therein. The towns built by the Romans were destroyed, and
large tracts of land were left barren and desolate. Gradually, the At the head of the nation was the king (cyning). However, he
various groups of the Teutonic conquerors separated into seven or was really only the ord of a number of petty principalities.
eight different states, each having its own chief. Bitter rivalries The countr. § divided into shires, which in many cases were all
and contests continued, however, between these states until about that was left of ancient tribal units, governed by chieftains who
287d. p. 521. 232Tq

229Td., p. 524. 2337)
2307, 2347
231Taswell-Langmead, English Constitutional History (7th Ed., 1911), pp. 1-2. 235Radin, Anglo-American Legal History, pp. 26-27
and order. To this end, the closest advisers of the monarch — the
had taken the title of ealdorman, which after the Danish Conquest
“curia regis,” or “King’sycouncil,” as it was called — encouraged,
had been displaced by that of earl (Danish jarl).”°*
over a period of time, the establishment of three,separate royal
The foundations of the Common Law were laid during the
courts which sat at Westminster. These were:
reign of William of Normandy (1066-1086). However, it was during
the times of Henry 1'(1100-1135) that the formative period of the (i) the Court of Exchequer, which as the name implies was
CommonLaw may be said to have been ushered in. This period, mainly concerned with cases affecting the royal revenue, but which
which extends, roughly, to the close of the reign of Edward I (1272- also had a limited civil jurisdiction;
1307), Saw the evolution of the royal courts whose judgments be-
(ii) the Court of King’s.Bench, which taking its name from
gan to build up the Common Law, and the growth of procedure the original concept of the monarch sitting with his judges “in
charac terized by use of system of writs, the introduction of dtiquest
banco” -— on the bench — at!Westminster, dealt with both civil and
as a'mode of trial, the beginning of written)pleadings andyadyocacy. criminal cases in which the King had an interest; and
Events no less of decisive importance which transpired during this
the Court of Common Pleas, which was established to
stage of Anglo-American legal history were the formulation of the Gii)
Charter of 1215 in the plains of Runnymede, the first glimmering hear civil cases brought by one individual against another.?%9
of equity law, and a number of powerful circumstances without Prior to the Norman Conquest, the local courts had applied
which the growth of the Common Law would not have been possi- customs:as)the.rules, but the customs varied in different localities,
ble.287 Jrbirs AM NCAMLGHAL O fis Ber Cé
and there was no body of custom common to all of England. There-
The task of doing justice and maintaining peace was still the after, the king’s judges in administering justice professed to apply
king’s personal and characteristic function. Where he was, justice to “Customofithe;Realm.” Out of the many divergent pre-existing
might be demanded. But if the demands were frequent and numer- customs, the king’s judges built up a uniform,system,of law .en-
ous, he did not hear them himself. They would necessarily be as- forced throughout the kingdom, and because its administration was
signed to such members of the Curia as had shown a special apti- general rather, than, local, the term “Common!Law” was applied to
tude or a special fitness for this task. The king’s duty of doing it during the reign of Edward I, thisyproper noun meaning the body
justice between subject and subject was thus in part performed by of law enforced’ in Exchequer, Common. Pleas and King’s; Bench.
sending commissions of justices on tour (iter, eyre) throughout the The'Common Law is; therefore, the creation of royalofficials in the
country. The itinerant judges so demonstrated the need of their exercise of authority derived from the king.?*°
services as to cause a demand for the creationvof aypermanent With the evolution of the royal courts, they naturally began to
justice Court. This was establighed in 1178. It was to sit perma- encroach on the business of the local courts — those of the hun-
nently at Westminster and to be constantly available for hearing dreds and the shires — and to abscrb all the judicial business of
“clamoes’ of the realm, the actions between subject and subject. the kingdom with the exception of trivial and inconsequential cases.
On questions of great difficulty, it was to refer to the king for The method by which litigation was drawn into royal tribunals was
decision by him and the wiser men of the kingdom, the Curia the issuance, at someone’s instance, of a royal mandate commonly
Regis 258
called a ‘writ: The characteristic of a writ was that it was an order
Following the Norman Conquest, succeeding monarchs soon in the king’s name either to the sheriff to bring a person before the
court, venire facias, or to-summon such persons, summoneas, or
realised that besides the need for strong national government there
was also a need for the development of a system of national law else it was an order to the party accused or complained against to
Py 4/ ; 3, 6 f kx Mieaih pf. 5
LI GEM ttn rgbel he Cle. fuste ed A, /
ced - ted iat hiv Asgtt tA ald per :
Nees POPMANNA He VRS 239Keith Eddy, The English Legal System, London, Sweet & Maxwell, 1987,
2367q., pp. 27-30.
237Wigmore, op. cit., pp. 1054-1056. yf, ein pp. 170-171.
238Radin, op. cit., pp. 93-94. ¥ ul a 247d. p. 161, 345.
riatth.bato~ Sto Ger e4

appear. By the issuance of writs, each manufactured for a particu- official directly, and in this way Chancery became a recognized
lar case, causes were drawn to the royal courts.241 forum for the relief of litigants and the correction of legal abuses.
The new tribunal continued to advance toward greater independ-
Notwithstanding the development of the common-law courts, ence, and during the reign of Edward III (1327-1337) the court
the king was still the great reservoir of justice for the entire king- came to sit regularly at’ Westminster for hearing causes. By the
dom, and petitions were not infrequently addressed to him seeking end of the reign of Henry V (1413-1422), the purely formative pe-
relief either against, or independently of, the ordinary courts. Dur- riod was over, and Chancery,.was one of the established courts of
ing the reign of Edward I (1272-1307), the number of variety of the realm.?44
these petitions became so great that an ordinance was issued di-
recting the Chancellor to deal with the greater number of them. The Chancellor, being an ecclesiastic and versed in the Roman
This was the starting point of the equitable jurisdiction of the Law, never hesitated to draw from it such principles as would
Chancellor, whence developed that immense body of rules) known enable him to deal fairly and conscientiously (ex aequo et bono)
as equity.242 with the case submitted to him. The broad, general principles of
the Roman Law enabled the successive Chancellors to find therein
By the year 1300, the Common Law_.had acquired a definite remedies to meet in many matters the needs of those who had no
concept, and by the first half of the seventeenth century, we find it remedy at Common Law.
too fully established to be overcome by the invasion of the Roman
Law through the teachings of Vacarius (1143), and the works of Having once begun to remedy the wrongs brought about by
Glanvil (1189) known as “Tractatus,” and Bracton (1252) known as the rigidity and technicality of the Common Law system, Equity
“De Legibus Angliae.” During this period, the judicial system was soon found itself establishing a jurisdiction over matters where the
further developed with the institution of the Court Admiralty, and Common Law had failed, and continued to fail’to recognize legal
the Court of Chancery. Of special importance is the latter court, as rights and duties. The law relating to trusts, for example, was
it is the source of equity law, which, according to a renowned Eng- entirely based on decisions of the Court of Chancery. Nonetheless,
lish legal historian, saved the common law.248 Equity was always a “gloss” on the Common Law; it always pre-
sumed the existence of the Common Law and simply supplemented i
The system of equity began during the reign of Edward I it where necessary. That it continued to exist for some five centu-
when petitions to the king were referred to the Chancellor. These ries is an indication of the unchanging nature of English legal
petitions were the result of the inability, and to a limited extent the institutions, as well as of the important contribution which equity
unwillingness, of the common-law courts to entertain and give re- made to the development of English law. 245
lief in every case, and thus meet all the requirements of justice. Rea
The common-law courts were at this time limited very strictly in as rN (a) Examples of new rights. sigs whole ot the _ of i
their jurisdiction. Certain forms of action were in use, but unless a \) \y which was to become an important aspect of property law owed its
person’s wrong was of such a nature that one of these actions J Wd existence entirely to the willingness of Equity to recognize and
applied to it, the courts were powerless to grant a remedy. These Ke enforge- the obligation of a trustee to a beneficiary.
forms of action were neither comprehensive nor flexible; and many . ~Bapity accepted the use of the mor tgaxe as a method of bor-
suitors, after they had been refused justice when they applied for it rowing money against the security of real property, when the Com-
to the courts, would at last appeal to the king, in his character of mon Law took a literal view of the obligation undertaken by the
fountain of justice, for relief. In time, the custom of referring them borrower. It introduced the “equity of redémption” to enable a bor-
to the Chancellor led to the addressing of such petitions to that rower to retain the property Which-was-the security for the loan,
241g 244Pomeroy, Equity Jurisprudence, 3rd Ed., sec. 2, p. 34; Burdick, op. cit., pp.
242Wigmore, op. cit., p. 1060. 78-80.
243Wigmore, op. cit., pp. 1071-1072. 245 ddy, op. cit., pp. 174-175.
even where there was default under the strict terms of the mort- emphasize the ways in which Equity can be seen to be related to,
Gr deed. but to be different from Common Law.“
% (b) Examples of new remoies- At Common Law, the only ® As a result of its supplemental role, it became possible over
vremedy
4 for breach of contract was d mee). a money payment as the years for an observer to point to certain characteristics of Eq-
Ir
‘ compensation for the loss suffered. Rquity realized that in some uity. These became so well known as to be called the maxims of
) cases, damages was not an adequate remedy and _therefore, pro-
\
Equity. Among the most famous are:
ceeded to introduce the equitable remedies! Or injunetipn and spe-
cific performance. An injunction is used to prévent“a party-fram
0H)1 He who comes to Equity must come with clean hands;
acting-in breach of his legal obligations; a deeree*of specific = 2. Equity will not suffer a wrong to be without remedy;
ie ao.
toketaing » is used to order a party to carry out his side of a contract.
3. Delay defeats Equity; and
Any
‘These fTemedies mean that a party to a contract cannot just decide
21ge—
to break it and pay damages. fonds — Matis ETO TKO 4, Equity looks to the intent rather than to the forn).
ei
Other equitable remedies are the déclaratory order or judg- The maxims emphasize that Equity, being based in its origins
ment; the right to have a deed corrected by the process known as on fairness and natural justice, attempted to maintain this ap-
rectification; and the right_te-yescind (withdraw from) a contract. proach throughout its later history Certainly, the judges retained
The willingness of Equity to intervene where fraudwas" proved, their personal discretion so that equitable remedies were not, and
and its preparedness to deal with detailed accounts in the law of are not, obtainable of right.24”
trusts and the administration of estates also gained its wide juris-
Not without opposition, however, did the Court of Chancery
diction. The appointment of a receiver is another solution to the
maintain its jurisdiction. The Common Law courts were very jeal-
problem of the management of certain financial matters, and was ous of the growing influence and popularity of their great rival, and
introduced by Equity. a struggle often bitter was carried on between them for over two
(c) Examples of Siaeaeka res. In contrast to the Common hundred years. Each at times refused to recognize the authority of
Law attitudes, Equity favored a RES of approach. Consequently the other. The lawyers trained in the Inns of Courts had little
it was prepared by a *guibpoen}: to order witnesses to attend, to respect for the Chancery practitioners who were educated in the
tJ
3 have them examined and ¢ross- ciated orally, to require relevant Civil Law taught in the universities of Oxford and Cambridge.?48
documents to be produced, known as Diseoveryyof Documents, to The Court of Chancery finally triumphed, however, in the
insist on rélévant questions being answered,
by the use of*Inter- reign of James I (1603-1625) when the king upheld the power of
rogatories, and to have the case heard in) English, where the Com- Chancery to prevent by injunction the enforcement of a judgment
mon Law for centuries used Latin. In the event of a failure to obtained in a Common Law court. In the years that have since
comply with an ordeh_Bquity was prépared to impose immediate ensued, the principles of equity as they have become more widely
sanctions for this contempt 6f court. understood have been adopted in many courts of law since they
Another classification sometimes employed is to define the have been found more just and practical than the rules of Common
jurisdiction of Equity as exclusive, concurrent and ‘auxiliary. In the Law. Equitable theories and principles have also been incorporated
exclusive jurisdiction sense, Equity recognized actions, as in trusts in many modern statutes.?49
and mortgages, where the Common Law would provide no remedy;
in the conceurrentijurisdiction sense, Equity would add to the rem-
edies provided by the Common Law, as by the introduction of the
-injunction and the decree of specific performance; in the auxiliary 2467. pp. 175-176.
jumsdiction sense, Equity employed a more flexible procedure than 247%d., p. 176.
248Pomeroy, op. cit., pp. 78-80.
the Common Law. It will be seen that these three terms simply 2497,
@ The Supreme Court of Judicature Aets (1873-1875) reorgan- appeal for persons convicted and sentenced in indictable criminal
ized the existing court structures completely, and in the process cases. A further appeal in matters of general public importance lay
formally brought together the Common Law courts and the Courta to the House of Lords. The Court of Criminal Appeal became the
of Chancery, In the Supreme Court of Judiéature set up by the Court of Appeal (Criminal Division) by the Criminal Appeal Act of
Acts, the three original royal courts became three Divisions of the 1966.
new High Court of Justice, the Court of Chaneery which adminis-
tered Equity became the fourth Division, i.e., the Chancery Divi- The role of the Queen’s Bench Divisional Court in ruling on
sion of the High Court, and a fifth Division, dealing with those points of law arising by way of case stated in summary criminal
matters not within Common Law or Equity, namely Probate, Di-
cases was amended by the Administration of Justice Act of 1960.
vorce, and Admiralty, completed the new arrangement. By Order in This Act enabled an appeal in a case of general public importance
Council in 1880, the three royal courts were merged to form the to be taken to the House of Lords if the divisional court grants a
Queen’s Bench Division, thus leaving the three Divisions of the certificate to that effect and leave is obtained from the divisional
High Court — Queen Bench, Chanchery and P¥ébate, Divorce and court or the appeal committee of the House of Lords.
Admiralty — which were then to remain unchanged for 90 years.25° The court structure for trying indictable criminal cases was
The Judicature Acts (1873-1875) placed on a statutory basis substantially changed by the Courts of Quarter Sessions and As-
the old rule that where Common Law and Equity conflict, Equity sizes and replaced them with a court called the Crown Court. The
shall prevail. At the same time, it gave power to all the courts to Crown Court was to be organized on a six circuit basis so as to
administer the principles of Common Law and Equity and to grant achieve a much needed flexibility to lead to the prompt trial of
the remedies of both, as circumstances in a case demanded. Conse- indictable criminal cases (and High Court civil actions too).
quently, the old conflict no longer arises, although Common Law The Administration of Justice Act of 1970 created a Family
and Equity principles still ons Hel ily mun pid
Division of the High Court and amended the jurisdiction of the
By bringing the two systemis together administratively, and Queen’s Bench and Chancery Divisions redistributing the functions
allowing the High Court judge to exercise the principles proce. of the former Probate Divorce and Admiralty Division. One novel
dures and remedies of Common Law and Equity in a single case in change in appeal provisions was the introduction by the Adminis-
the one court, it seemed to many people that the two systems had tration of Justice Act of 1969 of a possible “leap-frog” appeal from
fom merged. That this was somewhat superficial is borne out by the the High Court to the House of Lords, bypassing the Court of
exclusive jurisdictions left to the Queen’s Bench and Chancery Di- Appeal. However, the procedure was made subject to stringent con-
visions. In practice, the work formerly done by the Court of Chan- ditions which in practice limit its use.”
cery is exactly that dealt with in the Chancery Division; equally it It will be remembered that in the 13th century, the barons
has its own judges selected from those barristers practising at the forced from the hands of King John the Charter of 1215, which
Chancery bar. A Chancery case remains something quite unlike a contained the provision: “No freeman shall be taken and impris-
Common Law case, and the same can be said of the procedure.?51 oned or disseized or exiled or in any way destroyed, nor shall we go
upon him nor send upon him except by the lawful judgment of his
The whole of the legislation has now been consolidated in the peers and by the law of the land.”?**
Supreme Court Act 1981.
This provision was seized upon in the 1600’s during a struggle
In 1907 the Criminal Appeal Act established the Court of against the crown, chiefly by that legal giant Sir Edward Coke, as
of
Criminal Appeal to provide for the first time a general right result of which the Charter to which the term “Magna Carta” is
250 ddy, op. cit., p. 177 252]. pp. 178-179.

251fd., pp. 177-178. 253Seagle, History of Law, pp. 210-211
now applied, has since existed in a sublimated form as a symbol of nevertheless refers from time to time to its principles, and fre-
civil liberties.254 quently cites Bracton as an authority, unconscious, doubtless, that
he was thereby citing Roman Law, Coke’s own knowledged of the
Magna Carta, as it has lived in the popular imagination, owes
a great deal to the transforming historical talent of Sir Edward Civil Law being very slight.?°8
Coke, the overshadowing legal figure of his time (1552-1633). He There were, however, other great names in the legal literature
was Attorney-General of England from 1594 to 1606, Chief Justice of this same period. They are Francis Bacon (1561-1626), John
of the Common Pleas from 1606 to 1613, and Lord Chief Justice of Selden (1584-1654), and Matthew Hale (1609-1676).
the King’s Bench from 1613 to 1616. The authority of Coke’s writ-
ings was
One of the most illustrious of England’s great names, ‘Bacon
so great that for many purposes, his statements are a
point of departure for the Common Law from the seventeenth cen- became Lord Chancellor in 1618. He was great both as a jurist and
tury on. He created for later generations not only the “myth of as a philosopher. He was a profound student of Roman Law, and he
Magna Carta” but the myth of the Common Law as a complete urged Queen Elizabeth to codify English law, holding up to her the
system “locked in the breasts of the judges,” who by a mystical but illustrious example of Justinian who codified Roman laws “from
not specified process declare the law without making it.255 infinite volumes and much repugnancy into one competent and
uniform corps of laws.”259
While the twelfth century had Glanvil’s “Tractatus,” and the
thirteenth century, Bracton’s “De Legibus Angliae,” the fifteenth Celebrated both as a lawyer and a statesman, John Selden
century for its part had Littleton’s famous treatise “On Tenures,” was one of the greatest legal scholars that England or any other
country ever produced. He was a voluminous writer on many sub-
and the seventeenth century, Coke’s great work known as “The his other
jects. In 1635, he published his Mare Clausum. Among
Institutes,” both of which are considered as the third and fourth
important legal works are Dissertatio and Fletam (1647), or ‘A
landmarks, respectively, of English legal history.5°
Commentary on English law,” and his work on “The Law of Nature
In his book, Littleton classified and examined all forms of and of Nations” (1640). His writings show a profound knowledge
landholding, put logic and order into their complication and with not only of Roman Law but also of International Law.?©°
particular zest noted the subleties and the difference in the rela-
Justly remembered in history as one of the greatest and wis-
tions involved. It is a technical book, unintelligible to persons not
est judges that ever sat upon the English bench, Matthew Hale
members of a highly trained profession, and one may add that the
was educated at Oxford and at Lincoln’s Inn. In 1653, he was
members of that profession were extremely proud of the
db, appointed by Oliver Cromwell judge of the common bench. Upon
unintelligibility of their language.?57
the restoration of Charles II, he was appointed baron of the excheq-
Coke wrote his great work “The Institutes,” a term taken from uer (1660), and Lord:Chief Justice in 1671. He was the author of
the Roman Law writers although Coke was bitterly opposed to the two celebrated works, “The History of the Common Law’. . . Hale,
Civil Law and to the Court of Chancery, in four books. The “First while contending that “neither the Canon Law nor the Civil Law
Institute” is a commentary upon Littleton’s Tenures, otherwise have any obligation.as laws within'the kingdom” save to the extent
known as “Coke on Littleton.” The “Second Institute” deals with that they have “been received and admitted by us,” yetyacknowl-
various ancient English statutes; the “Third (published in 1644 edges the influence of the Civil Law in various courts of England
after Coke’s death) with Crimes; and the “Fourth” with the juris- other than the courts of Common Law.”6!
diction of courts. Despite his evident contempt for Roman Law, he
*8Burdick, op. cit., pp. 83-84.

254Tq 259. ord Campbell, Lives of the Lord Chancellors, Vol. 2, Chaps. 5, 6.
255Radin, op. cit., pp. 285-286. 260Great Turists of the World Cont. Leg. History Series, Baston, 1914, Vol. 2, p.
*56Burdick, op. cit., pp. 82-83. 114, et seq.
*57Radin, op. cit., pp. 283-284. 261Burdick, op. cit., pp. 84-85.
In the meantime, there had been taking place an event of tion of the Law Merchant into the Common Law; (c) the establish-
decisive importance to the destiny of the Common Law — the ri- ment of stare decisis as a definite rule; (d) the appearance of law
valry between it and the Roman or Civil Law, which set in during reports; (e) the reorganization of the judicial system; (f) procedural
the fourteenth century. The great flood of the Civil Law had been developments; (g) the organization of the law practitioners into a
gradually overwhelming Germanic law elsewhere in Western Eu- dual system; (h) the appearance of other great legal figures who
rope after A.D. 1200, and in England, the Tudors attempted to exercised a great influence in the development of the Common
establish the Roman Law officially.26* Nevertheless, the» Common Law; (i) the cosmopolitanization and expansion of this system; and
Law» did*not»succumb; it asserted its supremacy in the realm of (j) the beginning of the codification movement.266
England. Why? The answer to this is found mainly in two ideas —
This period saw the establishment of the sovereignty of Par-
national patriotism and.a strong legal profession practising a uni-
liament vis-a-vis the crown, with the House of Commons emerging
fied common law.2®
as the dominant institution_of the nation. The sovereignty of Par-
Legal patriotism is typified in Fortescue and Coke. These men liament had as its necessary corollary the subordination of the king
patriotically championed the native legal system. The spread of the and the removal of his interference with the ordinary law of the
/
Roman law on the Continent in the 1440’s to 1500’s was associated land as administered by the common-law courts. Only parliament
with the imperial plans of Charles V and the Papacy’s claims of might now alter existing law by its process of amendment. This is
ra)
universal jurisdiction; and so the same political patriotism which indeed the whole sum and substance of the doctrine of “the su-
supported Henry VIII’s break with the Papal system was matched premacy of law,” or “the rule of law.” Technically expressed, it is the
by a legal patriotism which inspired a devotion to the English legal doctrine that judges in ordinary legal proceedings may pass on the
system.?64 legal validity of the acts of the king’s ministers and servants, who
might not plead as a defense a royal command.26”
Ours | In the other Germanic regions, on the Continent, there was as
yet, no. legal profession, no law schools, and no unified common law. The one institution of English law which has on the whole
In England, this same period found English law already long uni- worked most satisfactorily in favor of an accused is the famous writ
C | fied, and technically studied and taught by a strong professional of habeas corpus. The writ was used under Edward I to get a
fraternity. The Inns of Court were the fortress from which an army defendant before the court. In the fifteenth century, it was used to
Vows | of professional devotees fought stubbornly in defense of English bring a litigant from an inferior court to a royal court and later as
law.765 one of the instruments in the rivalry between the Common Law
4 The period from the seventeenth to the nineteenth century
courts and Chancery.268
witnessed the full flowering of the Common Law and the beginning Finally, toward the end of Elizabeth’s reign, Deas corpus
of its career as one of the great world systems of law. The chief began to be used as we now know it, to determine the validity of an
legal events of this period are: (a) such epoch-making constitu- arrest by persons claiming to act by public authority, and it thus
tional developments as the inauguration of the sovereignty of Par- became, as it has ever since been, the chief means of protecting
liament and its transformation into a democratic body, theestab- personal liberty, the “highest remedy in law,” as Selden said, “for
lishment of the doctrines of the supremacy of the law, independ- any man that is imprisoned.”2°9
ence of the judiciary and inviolability of civil liberties and the
Out of the habit of citing precedents which the king’s judges
development of the famous writ of habeas corpus; (b) the incorpora-
had been following since the formative period of the Common Law
262Radin, op. cit., pp. 115-116. 266Radin, pp. 17-21, 62-63.

263Wigmore, op. cit., pp. 1090-1091. 267Seagle, op. cit., pp. 217-218.
2641q. pp. 1077-1078. 268Radin, op. cit., p. 233.
26574. pp. 1080-1084, 1090. 2697p
| Copa witwor us:
Aupsnclatice
|
— ite
96 ( St" INTRODUCTION TO LAW = @ttrr PART Il — THE WORLD’S LEGAL SYSTEMS 97
Ane Ay — PAW Cyr.
WW eo aR Gages —
there was evolved, in the eighteenth ea the doctrine of stare In the meantime, ‘by the #700's the English colonial
empire
decisis, which is supposed to be the Basis upon which the whole had begun. English ecommerce had become cosmopolitan
. The con-
Alavorate structure of the Common Law has been built.?’° ditions were ripe for expansion of the law. Thus, as
the English
colonies in America grew into commonwealths,
The Common Law as a system/of'precedents is supposed to go tem, following them, expanded and was adopte
the Aiiglican sys-
back to the Year Books which ended in 1535, and became Reports. their needs.274
d and adapted to
The first reports were those of Dyer (1537), which continued the
Year Book tradition. These were followed by Edmund Plowden’s b) Common Law in the United States
Commentaries and, later, Coke’s Reports. From the Restoration
(1660) on, reports multiplied. Generally, they were published = Previous to 1776, the inhabited portion of the territory now
commercial enterprises, and frequently were of extremely poor qual- occupied by the United States was divided into thirteen colonies,
ity. With the publication of Burrows Reports in 1765, containing all of which were under the governmental! control of Englan
d. In
cases from 1756 on, we have a new era. Burrows Reports for the the fateful year of 1774, a Continental Congress, as
representa-
first time gives us a headnote, and separate the statement of facts, tives of the people of the colonies, declared their indepe
ndence,?75
the argument of counsel and the decision with its supporting opin- The Common Law had followed the English colonies.
ion.?71 The set-
tlers from England had esteemed it, throughout their
colonial con-
The most shining name in the eighteenth century is William
-
| ~ mi
dition, to be their birth right as English subjects,

J and their safest
Murray, Earl’of Mansfield. Lord Chief Justice of the King’s co rule of conduct. And when the colonies renounced their
allegiance
for thirty-two years (1756-1788), who is enshrined in English lega to the British government and passed into states, the
law became
¢
history as the fotinder of the Commercial Law of England, He com- the fundamental jurisprudence of the states so far
wy as it was adapted
pleted the work of Holt in the incorporation of the Law Merchant to their several conditions. At present, with the exception of the
in the Common Law. Lérd Mansfield was a Scotchman, learned in state of Louisiana, the system of jurisprudence that
now prevails
Roman Law, and his great ability enabled him to mould and influ- in the American states is that which has been
derived from the
ence in the interests of justice and equity many principles now Common Law of England.276
accepted as English Law which, however, involved many questions In this connection, a decisive factor in the survival of the
unsettled by prior decisions.?” Common law in America was the influence of Blackstone’s Com-
On June 23, 1753, appeared the epoch-making announcement mentaries, which became a sort of gospel upon the law for all
of a course of lectures on the Law of England at Oxford University Amercian judges, lawyers, and law students. No other law
book
by Sir William Blackstone, Mansfield’s protégé, then a young man ever occupied an equal place in the respect and veneration of thou-
thirty years old. It is a notable fact that he was the first lecturer on sands of law readers on this side of the Atlantic, 277
English Law in the history of that renowned seat of learning, Civil
The first, and perhaps the greatest, name in the judicia
or Roman law having been the only law previously taught at either l his-
tory of the United States is that of John Marshall, Chiéf Justice
Oxford or Cambridge. A few years later (1716), the full lectures the United States Supreme Court from 1801 to 1835. He was
of
were published — a four-volume treatise called “C ommentaries on the
first to proclaim the doctrine of judicial supremacy, which
the Laws of England,” the last great landmark of the Sera raised
the U.S. Supreme Court from weakness to strength, from
and perhaps the most celebrated legal textbook ever written.” public
contempt to awe.
270Black’s Law of Judicial Precedents, p. 184. 2747. pp. 1098-1102.

271Radin, op. cit., pp. 317-319. 275Smith, Elementary Law, pp. 27-28.
272Burdick, op. cit., pp. 76-77. 276Wigmore, op. cit., pp. 1094-1098.
273Wigmore, op. cit., p. 1094; Seagle, op. cit., p. 176-177.
2777.
Marshall’s contemporary, Joseph Story, owehis import tics were employed in all the departments of secular government,
ance
more to his writing than to his judicial decisionalth and they alone conducted all public measures and state negotia-
ough these
are many and noteworthy. He was a prolific writepf textbo tions, which, of course, they directed to the great objects of advanc-
oks. He
wrote on the American Constitution, on Bailme ing the interests of the church, and establishing the paramount
rs on Agency, on
Equity Jurisdiction and on Conflict of LawsOn the last
subject, he authority of the Holy See.282
really created a new terminology. In manyf them he deliberately
Pope Nicholas I (A.D. 859) proclaimed to the whole world his
— sometimes necessarily — relied as muclpn civilia
ns as on Com- paramount judgment in appeal from the sentences of all spiritual
mon-Law sources.2”8 judicatories; his power of assembling councils of the Church, and of
and later regulating it by the canons of those councils; the right of exercising
James Kent, Chief Judge of the Supreme Court
after his
his authority by legates in all the kingdoms of Europe, and the
Chancellor of the state of New York, lectured on law
control of the Pope over all princes and governors.?83
retirement and in 1826 brought out his lectures as Commentaries
on American Law. The book was at once successful, and exercised a The contentions between the Imperial and Papal powers make
profound influence.?”° a distinguished figure during the tenth, eleventh, and twelfth cen-
turies. From the time that Otho the Great (A.D. 961) received the
j it will hardly be questioned that
the figure Cider Went ee is the
Imperial crown from the Pope, the Emperors were considered as
ai a He was
the great iberal on the bench, usually in the minority, but of vast the temporal, the Popes as the spiritual, heads of Christendom, as
authority pa among those who most vigorously opposed his views, though the Christians of all states and countries were included in
The most influential American book on legal history or philosophy one grand republic. The contest began between Henry IV, Emperor
of Germany, and Pope Gregory VII. The latter sought to raise the
is the Common Law by Oliver Wendell Holmes, whose theories and spiritual above the temporal authority in all the states of Europe.
constructions were extensively accepted in England as well as in
The same contest went on under a succession of popes and emper-
the United States.?7°° ors, but ended commonly in favour of the former. Frederic I
(Barbarossa), the second monarch of the Suabian dynasty, a prince
13)Catholic (Papal) Legal System and the Canon Law of high spirit, after an indignant denial of the supremacy of Alex-
The sway of the Christian church was at the zenith in the ander III, and a refusal of the customary homage, was at length
centuries A.D. 800-1200. The popes had begun to acquire a tempo- compelled to kiss his feet, and appease his holiness by a large
ral authority under Pepin le Bref andCharlemagne, from the dona- cession of territory. Pope Celestinus, at eighty-six years of age,
tions of territory made by those prin€®, and they were now gradu- kicked off the Imperial crown of Henry VI, while doing homage on
ally extending spiritual jurisidiction®VeT all the Christian king- his knees, but made amends for this insolence by the gift of Naples
doms.?8! and Sicily, from which Henry had expelled the Normans. The suc-
ceeding Popes rose on the pretentions of their predecessors, till at
While the Church was thus gradually extending its influence, length Innocent III, in the beginning of the thirteenth century,
and its head arrogating the control over sovereign princes, these, established the powers of the Popedom on a settled basis, a positive
by a singular interchange of character, seem in those ages to have acknowledgment of the papal supremacy, or the right principalitier
fixed their chief attention on spiritual concerns. Kings, dukes, and et finaliter to confer the imperial crown.?4
counts, neglecting their temporal duties, shut themselves up in
cloisters, aid spent their lives in prayers and penances. Ecclesias-
————__
278Radin, op. cit., p. 273.

KL
282Tyther’s Elements of General History (1855), p. 185.

291d. p. 274, 2837. p. 184.
280Td,, pp. 306-307. 2847. pp. 202-203.
281d, pp. 935-936.
>
The Decretum of Gratian, creator of Canon law, was an inde- penalties that neither the proudest monarch nor the sumblest a
pendent system. The legislation and decisions of the Popes, after ant could escape; and it was administered by a supreme world-
accumulating for seven centuries in thousands of separate decrees, judge responsible to no earthly superior for his actions. 287
rescripts, bulls, and council-resolutions, were first systematically
Not the least of the characteristic and imposing products of
digested in the so-called Decretum of Gratian — a private compila- the medieval Church was the gigantic fabric of the canon law. It is
tion made about A.D. 1140, by an obscure monk, named Gratian, at embodied in a series of collections containing enactments of coun-
the University of Bologna. Twice in history the growth of the papal cils and papal decretals, beginning with the collection of Gratian in
supreme jurisdiction received a powerful impulse from literature; the twelfth century and ending with the decretals of John XXII, in
the first impulse was given by the forged Decretals of Isidore, in the fourteenth century. The canon law became the legal buttress of
the 800’s; and now it took place a second time, in this Decretum, — the Beet theocracy and remained the ruling code till the Reforma-
one of the great textbooks which by appearing at the right time tion.
and the right place, becomes, universally revered as equal to law.
Gratian’s huge labors of search and sorting brought clarity out of The science of canon law looks back to Gratian as its father,
chaos, and now first made these materials available for ready ref- and Bologna was the chief centre for its study. Although works on
erence by all. The Decretum virtually created Canon (or papal) law the subjects were produced in other lands, Italy, through her uni-
as an independent system. Exalting the papal authority, it met versities, was far in the lead in-their production till late in the
papal favor. The Emperors were favoring the then recently resur- fifteenth century.?89
rected imperial law of Rome and so the Pope, in their rivalry with Under the Roman state, the religious laws — the jus sacrum,
the Emperors, welcomed the strong legal support found in the De- Jus pontificium — were not a distinct body of legislation. In the
cretum.?85 Christian Church, the conception of a distinct and superior divine
Canon law now began to be taught in the newly arisen univer- law existed from the beginning. The formulation of a written code |
sities, (alongside of the Roman law of Justinian; and the degree of followed the meeting of Christian synods and their regulations. As |
J.U.D. (Guris utriusque doctor”) came into use as signifying a mas- the jurisdiction of the hierarchy and the institution of the medieval y
ter who had compassed both branches of law. The tombs of these papacy were developed, this legislation came to include civil obliga- Wf
doctors of Canon law show that their fame equalled that of the tions and all civil penalties except the death penalty. The Church
other branch. One of the most eminent, Johannes Andreae, a pro- encroached more and more upon the jurisdiction of the civil court.29°
fessor at the University of Bologna, in the early 1300’s was so well- Gratian’s work was preceded by the Penitential Books and a
beloved in Bologna that when the University by an ordinance for- number of imperfect collections of ecclesiastical decisions, the chief !
bade any member of the University to become godfather to any of which were, two books of synodal cases by Regino d. 915, the
family of Bologna citizens, it made a special exception in favor of collections of Burchard, bishop of Worms d. 1025, Anselm of Lucca i
Andreae and all his descendants forever.78° d. 1086, Cardinal Deusdedit about 1087, and Ivo of Chartres d.
In the time of Pope Innocent III (A.D. 1198), the Roman church 1117. The pseudo-Isidorian decretals also belong to this class and '"
claimed and possessed supreme temporal political power over the they were much used, especially by Burchard.2%1
entire Christian world. Rome was once more the mistress of Eu-
rope, and kings were its vassals. Its clergy were immune from the
criminal justice of the state. Its legislation covered the whole of
ies. existence from the cradle to the grave; it was upheld by
287Id., pp. 953-954.
iD Schaff, History of the Christian Church, Michigan, Eerdmans Pub-
lishing, 1907, pp. 764-765.
891d. p, 765.
285Wigmore, op. cit., pp. 942-944. 290
28674. pp. 942-944. 2911d pp. 765-766.
The work of Gratian superseded these earlier compilations, that the human race is governed by two principles, natural law and
k on ca customs. Then a number of questions are propounded such as what
being the monumental wor
and it enjoys the honor of an Ital ian by oe * is law, what are customs, what kinds of law there are, what is
nsian monk, and
law. Gratian, a Camaldule time es natural law, civil law, and the law of nations?293
Felix, Bologna, at the same
taught at the convent of St. ae
law in the wee “ Gratian’s volume was soon found to require supplement. The
Irnerius was teaching civil s his gre
is biogra two centuries following its appearance were most fruitful in papal
ce
i
lif ve been handed down, fis 35° fs Oreinal title, A Concordan decrees, especially in the pontificates of Alexander III, Innocent III
has giv en
tia canonum discordantium, and Gregory IX. These centuries also witnessed the Lateran and
of Differing Canons, concordan The wor
of Decrees.
title, Decretum, the Book other important councils. The deliverances of popes and synods
way to the simple ual in its
and at once became the man made subsequently to the age of Gratian, were called Gaiuemantee
was a legal encyclopedia, ser pe-
of the Lombard, Gratian s con or fugitives. Five compilations, called “the old compilations,” were
department, as the Sentences was not ¢ 7"
theology. This recognition made from 1191 to 1226. The third of these issued by authority of
rary, became the manual of any.
sanction, for it never received Innocent III and containing his decretals, was sent by that pontiff
to formal, papal, or synodal com men tat ors , the first
again by learned to the University of Bologna to be included in its course of instruc-
was issued again and ors and com -
ls, Paucapalea. These edit tion. This compilation was the first book of canon law having papal
being one of Gratian’s pupi ts The , 0 official Rom
rists.
ssaaris
Hoss
an
5 mists
were called Sum ists or Glo sanction.294
ators
l com mis sio n of thirty-five members
BeAtisn Was prepared y a papa
and issued by Gregory XIII in 1582. Gregory declared the text to be The demand for a complete collection of these materials in-
forever authoritative, but he did not pronounce upon the contents duced Gregory IX, to commit the task of gathering them into a
of Gratian’s work.?% single volume to his chaplain Raymund de Pennaforte. The work
usually called Decretales Gregorii IX, was finished and sent to Paris
Gratian’s aim was to produce a work in which all real or and Bologna in 1234 with the direction that it be used for purposes
ns in ie
ween customs and regulatio of instruction, and in the trial of cases. The preparation of other
apparent contradictions bet he secured by
oved or explained. This compilations was strictly forbidden. Gregory’s collection comprises
in the Church should be rem nt, say ing s of
called the dicta Gratia
exclusion and by comments,
185 titles and 1871 decretals and follows the five-fold division of
t, in one
ided into three parts. The firs Bernard of Pavia’s work.295
Gratian. The Decretum is div the sou rces of
or distinctiones, treats of
hundred and one sections the aut hority A new collection called the Sixth book, liber sextus — or, as by
mode of their convention,
canon law, councils and the elec tion and English writers, the Sext — was issued by the authority of Boniface
of the Roman pontiff, the
of decretals, the election lega tes, the VI, 1298, and carried the collections of Gratian and Gregory IX
papal prerogative, papal
consecration of bishops, the d topi cs. The into Boniface’s reign. In 1314, Clement V issued another Paileccions
ical celibacy, and kindre
ordination of the clergy, cler me which included his own decretals and the decrees of the council of
or causae, discusses different
second, in thirty-six sections of bis hop s an Vienne and was called the Seventh Book, liber septimus, or the
the ordination and trial
tions of procedure, such as chur ch pe oF Clementines. In 1317, John XXII, officially sent
ion, simony, clerical and Clement’s collec-
the lower clergy, excommunicat d part is de- tion to the universities of Bologna and Paris. Subsequent to the
ic and penance. The thir
erty, marriage, heresy, mag tissm m and
¢ t the con- publication of the Clementines, twenty of John’s own decretals were
sacraments of the euchararisist and bapapti
p ‘he e-
sdoten de ; «churches. ithe scholastic method is pursued. A stat added. In 1500, John Chappuis, in an edition of the liber sextus
ment is made and objections, if any, are then formally refuted by and the Clementines, added the decretals of John and seventy-one
citation of synodal acts and testimony of the Fathers, popes, and
other churchmen. The first distinction opens with the statement
2937, pp. 766- 767
294Td., pp. 767-768.
251d. p. 768,
104
of other popes. This series of collections, namely, Gratian’s Decre- of the canon law, the one representing the effrontery
of an infallible
tum, Gregory IX’s Decretales, the Sext, the Clementines, and the pope, the other the intolerable arrogance of a human lawgiver ii
Extravagantes of John XXII, constitutes the official body of canon matters of religion, and both destructive of the liberty
of the indi-
law — corpus juris canonici — and was published in the edition of vidual. Even in the Catholic world its enactments
have skit la ely
Gregory XIII.?%° superseded by the canons of the council of Trent, the
papal deercial,
issued since, and the concordats between Cathol
The canon law attempted the task of legislating in detail for ic princes and tis
papal see. By virtue of his official infallibility,
all phases of human life — clerical, ecclesiastical, social, domestic the pope Sas at any
time supersede them by decisions and dispensations
— from the cradle to the grave by the sacramental decisions of the of his own.
priesthood. It invaded the realm of the common law and threat- _In the Council Church at Trent, a city in the Tyrolean Alps
ened to completely set it aside. The Church had not only its own (which has now become Italian territory 0n¢e more) took place, in
code and its specifically religious penalties, but also its own pris- A.D. 1545, the last really Universal Chutch Council ever destined
to assemble. It was attended by over three hundred bishops, am-
ons.297
bassadors, cardinals, and other delegates. The great Titian made a
The canon law also gave its sanction to the devilish principle painting of it, which now hangs in the Louvre. The deliberations of
of ecclesiastical compulsion, declaring that physical force is to be the Council of Trent, with the adjournments, covered eighteen years
used to coerce ecclesiastical dissidents. It justified wars against the and its legislation ranged over the whole system of Canon law. But
enemies of religion and the persecution of heretics.?%° by the time this Council ended, the Protestant seceders had broken
As the thirteenth century ended, the principles of patriotic the church’s universal power. The national secular law in each
nationality and legislative independence were rising and growing coMntNy, of Europe was thenceforth to become supreme and exclu-
stronger throughout the west of Europe. This movement dates no- sive.
tably from the time of Louis IX (known as St. Louis), king of France, The temporal jurisdiction of the papal courts was in time
famous for his personal interest in dispensing justice, and often abolished by the various national legislatures. In France, this took
depicted in that role. And in England, the same rise of nationalism place by a series of statutes, beginning in the 1400’s and culminat-
and unified legislation is marked by the reign of Edward I, about ing in a statute of the Revolutionary Assembly in 1790, which
A.D. 1300; Edward, for his vigorous constructive influence on Eng- abolished the church courts. But in England, the break and come
lish national legislation, has been given the epithet (hardly appro- suddenly and completely, by a group of statutes, in A.D. 1532-1534,
priate) of “the English Justinian.” And so by the time of Luther of — measures framed and demanded by King Henry Viit, but fully
Knox, and of Calvin in the 1500's, the Universal Church was no supported by popular opinion. One statute forbade a ‘eals from
longer a universal power.” 299 English soil to the justice of the Pope; anothor statute Made the
The legalistic tyranny became too heavy for the enlightened English church master of its own legislation, but subject to the
conscience of Europe to bear, as was the case with the ceremonial king’s approval; and a third declared the king t0 be “the only su-
law in the days of the Apostles, against which Peter protested at preme in earth of the church of England.” The @Dtire papal juris-
the council of Jerusalem and Paul in his Epistles. The Reformers diction was transferred to the national courts.
raised their voices in protest against it. Into the same flames which By the close of the nineteenth century, the huge mass of papal
consumed the papal bull at Wittenberg, 1520»Luther threw a copy church-law stood in need of a thorough restatement. During the
seven centuries since the Decretum and the Decretalia, thousand
of ordinances of supplementary legislation had accumulated; man-
296]d., p. 768.
297Id., pp. 768-769. Pie
2987d., pp. 769-770. 3800S chaff, op. cit., p. 770.
Lis:
299Wigmore, op. cit., pp. 400-401. 301Wigmore, op. cit., p. 401.
fin Ww Nit LA
ners and customs had changed; the temporal jurisdiction of the on revelation. The religion of Islam frankly accepted the Hebrew
Pope had ended; new world-wide spiritual areas had been added, traditions of reverence for Moses and Abraham, as well as the
much of the laws were obsolete; and much of the remainder was mission of Jesus of Nazareth; and Mohammed claimed no more
difficult to trace through the seven centuries ofrecords) than to be their successor as a new Apostle of God. The central
A Commission was therefore appointed, in 1904, by Pope Pius thought in the teaching of Mahomet is that “there is no God but
X. Its vast labors, which included consultation with clerical au- the true God and Mahomet is his prophet.”3%
thorities all over the world, had Cardinal Gasparri at the head of Mohammed’s creed represented, for the Arabs, the moral and
the commission, and were completed in twelve years; and on May monotheistic reform of an idolatrous people. Beginning with a pro-
27, 1917, was promulgated by Pope Benedict XV the Codex Juris test against orthodox Arab beliefs, Mohammed was at first perse-
Canonici. This work, unlike the old Corpus Juris Canonici (with its cuted, like the prophets of other new faiths; so he and his followers
Decretrum, Decretalia, and Supplements), is not a compilation, but seceded to Medina, the city thence forward revered for his memory,
a genuine codification — one of the modern world’s greatest mas- where now two hundred thousand pilgrims come annually to renew
terpieces of composition. Its text is in lucid latin — the only near- their devotion. But after the rapid success of the new faith in
universal language.°°? converting the entire Arab people, its headquarters were trans-
It was not long after the Second World War that there was a ferred to Mecca, the age-old centre of Arab traditions. Mahomet’s
very strong feeling both in scholarly circles and especially amongst entire early propaganda was one of persuasion; but after his ar-
pastors of souls, that there was a need to bring the 1917 Code up to rival in Medina he preached the sword not only for defense but for
date and to adapt it to the changed circumstances of the world. the spread of the faith. His cry was: War against infidels — “Con-
Pope John XXIII on January 25, 1959, when announcing the Sec- version or death.”86
ond Vatican Council, clearly appreciated that after the conclusion It must be remembered, to appreciate the achievements of the
of the Council, a revision of the Code would be essential. In 1977, Muslim legal system, that in those four centuries from A.D. 800 to
Pope Paul VI said that the new Code must prove to be an instru- 1200, often call the Dark Ages of Christian Europe, the Arabs or
ment most finely adapted to the life of the Church. On January 25, Saracens were almost the sole vehicle of the world’s active intellec-
1983, Pope John Paul II promulgated the present Code of Canon tual and artistic progress (outside of eastern Asia).°°7
Law as it has been compiled and reviewed to have the force of laws
for the whole Latin Church.3°4 The sources of Islamic law are, three: firstly, the Koran oD
—
word of God, as written down by Mohammed; secondly, the sayings
14) Mohammedan legal system and, conduct, of, Mohammed, as preserved in tradition;thirdly, the
treaties of jurists, elaborately developing from those fundamentals
The Mohammedan legal system is based on a militant religion the legal rules applicable to all the affairs of life.°°8
— Islam — founded about A.D. 600 by Mohammed (or Mahomet),
the best mind of his age, a native of Mecca, the holy city of Arabia. The legal system of Islam, is founded on the Koran. The Ko-
The term “Mohammedanism” is not used by its believers. The cor- ran contains all the revelations of Mahomet. The literal meaning of
rect term for that faith is “Islam” meaning “submission to one the word is “the book which ought to be read.” There are one
God.” Islam, aspired to be a comprehensive system of human life hundred and fourteen divisions or chapters. The book is somewhat
and social order — religion, morality, politics, and law, all founded shorter than the New Testament. The contents are varied. There
are civil laws and social provisions, and promises regarding future
(\, |
[ Mina
JOG hE
302Wigmore, pp. 963-965. 305Wigmore, op. cit., pp. 536-537.
3037d., pp. 965-968. 306. andone, Civilization, an Appreciation, Vol. II, p. 78. — fr ie \
304The Code of Canon Law, London, Collins Lithurgical Publications, 1983, 307Wigmore, op. cit., pp. 538-540. _ Al iA ‘
pp. XV-Xxill. 3087 d., p. 545. Las y
Tl seu \
f
reward and sonishmen the law, or “shariah” is a part of the recently in general decline, these native elements are on the as-
religion, not a separate thing. To the true Muslim, all other laws cendancy in some parts of the world. This is particularly true of
are but temporary and human.2°9 Islamic countries.?!8
But there is little law in the Koran. Hence, the second great
1. The Civil Law Tradition
source of Islamic law is found in the acts and sayings of Moham-
med himself. These anecdotes represent Mohammed’s philosophy The origins of The Civil Law can be traced back to the Twelve
of life, and justice and a whole body of law was gradually built up Tables of the Republic of Rome in the 5th century B.C. In its ori-
from them.??° gins, it is the law of the city of Rome the law applied to a citizen (in
Latin, civis) of Rome as opposed to the law applied to a non-citizen.
An elaborate system of legal theory was by A.D. 902, well-
The expression “civil law,” in Latin ius civilis, literally means the
organized by scores of jurists all the way from Samarkand to Cor-
law of the citizens of Rome.?!4
doba. This is the third source of Islamic law. 31!
In Roman Law, “civil law” or tus civile, primarily designated
The earliest legal treatise now textually extant is that of Zaid
those parts of the Roman law whose applicability was restricted to
Ibn Ali; it was composed for the Arabs of the Yemen (southern
citizens of Rome. The parts of Roman law which were also applica-
Arabia), before the great separation into Sunnites and Shiites. Its
ble to foreigners were termed ius gentium.3
text dates from about A.D. 760; the chief manuscript from about
A.D. 1650; but it was only rediscovered in 1911, in the Ambrosian After the fall of the Western Roman Empire (A.D. 476), the
Library at Milan. It is authenticated (in Arabic fashion) by a chain so-called barbarians brought their law to Rome, and although Ro-
of certificates, handed down for nearly 1000 years by successive man law continued to apply to the Romans, the Germanic influence
disciples as copyists, verifying the words of the early master. The grew quickly and the law became more and more a mixture of
vast body of Islamic learning consists entirely of works by jurists, Germanic and Roman law. This would later be known as the vul-
not of government code and statutes.?!2 garized Roman law. This law had very little in common with the
classical Roman law. Canon law, the law of the Catholic Church,
was the only Western legal system that kept intact many elements
B. The Main Legal Traditions of the World of the Roman law. However, in 529-34, the Eastern Roman Em-
Most Western comparativists distinguish three large groups peror Justinian published Corpus Iuris Civilis, an articulation and
of legal systems — civil law, common law and socialist law. Almost reformulation of Roman law. The Justinian Code and accompany-
every legal system presently in existence has at least some charac- ing compendia remained in force in Byzantium until and even after
teristics affiliating it, with one or several of these three groups, the fifteenth-century conquest by the Ottoman Turks.!6
each of which is characterized by features of European original. At the end of the eleventh century, the University of Bologna
But it should be pointed out immediately that this trichotomous in Italy started teaching Roman law, more specifically the Corpus
scheme of classification, though useful as a rough orientation, does Iuris Civilis. This was at first a purely intellectual endeavor since
not exhaust the rich variety of laws one finds in the modern world. Roman law was no longer the law anywhere in Western Europe.
Especially in Asia and Africa, there are several legal systems which, This marked the beginning of what would later be known as the
although in some ways connected with one or more of the principal
groups, retain important elements of non-European origin. Until
Meged Sp CN L Wis PULL 313Schlesinger, et al., Comparative Law, New York, The Foundation Press,
1985 (5th Ed.), p. 311.
3097d., p. 543. _ - ul if 3\4Hanigsberg, U.S. Legal Methods and Problems, Vol. 1, New York, 1994, p.
ee
3107d., p. 549. ql feck Ae a4. ) 28.
3117d., p. 552. 315Watson, the Making of the Civil Law, p. 2. hud AS MM GEN [oy
Va a
3127, Le
316Hanigsberg, op. cit., ». 28.
/ e
qu chi
cu Yu
oO AWboy ©feta
Chi
Aner “ Me
“ PiA 0
cui wie bt hogs
resurgence of Roman law. Soon other Western European universi- and Portuguese conquerors introduced legal systems rooted in the
ties followed Bologna’s lead and after a few centuries, the Roman civil law; most of the nineteenth and twentieth century codes, though
law was received almost everywhere in continental Europe. It be- adopted after emancipation, continued this tradition by following
came the ius commune (the “common law”) of continental Europe.*!" European models. The legal systems of Latin America thus are
generally classified as belonging to the civil law orbit. Their funda-
The Roman law actually “received” was in fact limited to what
mental civil law character has been judicially noticed by courts in
we call “private law” (property, torts, contracts, etc.). That is why
the United States.328
interestingly, civilian jurists refer to what we call private law sim-
ply as “the civil law” (persons, property and obligations).18 Yet, the common law (especially as reflected in the U.S. Con-
stitution) has had a considerable impact on Latin American legal
The two main civil law models are the French Civil Code which
systems, primarily in the area of public law. The notions of due
dates back to 1804 and the German Civil Code of 1896. Napoleon process and habeas corpus, for..example, have been incorporated
brought the French Code wherever he and his armies travelled. The into the constitutions and statutes of a number of Latin American
French model influenced the Latin countries both in Europe and in
nations. Even in the field of private law, it seems that common law
America (Central and South America, Louisiana and Quebec). It has
influences are not lacking, and in fact are growing of late, spear-
also influenced former French, Spanish and Dutch colonies in Africa, headed by the relatively recent adoption of the express trust in a
the Middle East and Asia.*!9 The Civil Law tradition strongly influ- number of Central and South American countries.°24
enced the Philippines which was a colony of Spain.
The same mixed character of law in a large portion of the
The German model influenced the Austrian and Swiss Codes
Western Hemisphere is evident to an even greater extent in Puerto
as well as many Eastern European countries before the Soviet
Rico as well as in Louisiana and Quebec, often referred to as civil
occupation. German law was likewise received in Japan and in law enclaves in the common law world. Of the two last mentioned
Korea.°2° jurisdictions, perhaps Quebec has better resisted the encroachment
By way of broad initial generalization it can be said that the of the common law although much of the commercial laws of the
whole of continental Europe (with the possible exception of Scandi- province, codified as well as uncodified, reflects English influence.
navia) and the countries of continental South and Central America Even Louisiana, laboring under the decadence of the French lan-
(with the possible exception of Nicaragua and Guyana) are looked guage and the impact of a federal system, still maintains a civil
upon as the core of the civil law jurisdictions.°?! law flavor in juridical method as well as in legal substance.325
It should also be noted that those who seek to classify legal The civil law, even though it has its core areas in continental
systems, frequently pay exclusive attention to the area of private Europe and Latin America, has spread into many parts of Asia and
law. The classificatory schemes thus produced are apt to be unin- Africa. Japan, having adopted the main structure of the German
formative or misleading regarding the character of a nation’s pub- code system more than eighty years ago, subsequently felt a meas-
lic law.322 ure of common law influence following World War II. It remains
true, nevertheless, that a German-trained member of the legal pro-
The point made in the preceding paragraph is well illustrated fession encounters much less difficulty in comprehending Japanese
by the legal systems of continental Latin America. The Spanish legal materials than a lawyer brought up in the common law; in
| — Aw 5 40U¢rol f this sense, Japan is still a civil law country. The same is true of
Jo cratorr South Korea. German law also influenced the legal system of pre-
SSS lr | .
afd,
a1ep —~ wouag ef f Nivt
pr WO fuel A)
3197, : ie
32074. Ao CA : ae 3237,
®21Schlesinger, op. cit.,p. 311. . A Vit fz : Cotes XL 847d, p. 316.

827d, p, 315. 8257,
112 INTRODUCTION TO LAW PART II — THE WORLD'S LEGAL SYSTEMS 113
communist China, and this German influence remains clearly no- Out of the many divergent pre-existing customs, the king’s
ticeable in the basic codes of the Republic of China (Taiwan).°26 judges built up a unform system of law enforced throughout the
kingdom, and because its administration was general rather than
2. Common Law Tradition local, the term “Common Law” was applied to it during the reign of
Edward I, this proper noun meaning King’s Bench. The Common
Although Roman law was greatly received by Continental Eu- Law is therefore, the creation of royal officials in the exercise of
rope in the Middle Ages, the fact remains that the English Com- authority derived from the king.
mon Law developed independently and is a legal system of its own,
not based on Roman Canon Law. At the time when the Roman The common law has its source in previous court divisions.
Canon Law began to expand over the Continent, the English Mon- The main traditional source of the common law is therefore not
archy, and the English Monarchy alone, had organized a perma- legislation but cases. When the common law evolved into an unfair
nent system of central courts at Westminster whose judges used to set of rigid and formal procedural rules, the subjects petitioned the
apply English statutes and feudal customs and to follow their own King. With so many petitioners, the King created the Court of
precedents. As a result, Roman Law, as Van Caeneghem has put it, Chancery which could grant a discretionary relief “in equity” to
in a sense came to England too late.?2” correct the common Jaw. The decision of this court gave birth to a
body of law called equity which is also based on previous decisions.
Also we have seen that the Continental rulers in the course of As before noted, the system of equity began during the reign of
the thirteenth, fourteenth and fifteenth centuries began to appoint Edward I when petitions to the king were referred to the Chancel-
university-trained lawyers to their courts. However, in England, lor. These petitions were the result of the inability, and to a limited
Edward I organized a training for the judges of his courts which extent, the unwillingness of the common law courts to entertain
was independent of the law schools of Oxford and Cambridge. The and give relief in every case, and thus meet all the requirements of
English lawyer, consequently, was not a lawyer trained at universi- justice.
ties; he was educated at the inns of court and the court itself.
English lawyers as a professional group were separated from the Not without opposition, however, did the Court of Chancery
juristae of the universities and developed their professional knowl- maintain its jurisdiction. The common law courts were very jealous
edge on different lines.328 of the growing influence and popularity of their great rival, and a
struggle often bitter was carried on between them for over two
The foundations of the Common Law were laid during the hundred years. Each at times refused to recognize the authority of
reign of William of Normandy (1066-1086). However, it was during the other. The lawyers trained in the Inns of Courts had little
the times of Henry I (1100-1135) that the formative period of the respect for the Chancery practitioners who were educated in the
Common Law may be said to have been ushered in. This period Civil Law taught in the universities of Oxford and Cambridge.
which extends roughly to the close of the reign of Edward I (1272-
1307) saw the evolution of the royal courts whose judgments began The Court of Chancery finally triumphed, however, in the
to build up the Common Law. reign of James I (1603-1625) when the king upheld the power of
Chancery to prevent by injunction the enforcement of a judgment
William the Conqueror, had earlier established royal courts at obtained in a common law court. Both law and equity are part of
Westminster. Their limited jurisdiction eventually expanded easing what is called the common law tradition.*%°
out the local courts then existing. The decisions of the royal courts
became the law common to the whole kingdom, the common law.®9 The British Empire brought the common law to all continents.
Se
The United States, Australia, English, Canada and New Zealand
where English settlers became the majority, adopted the common
261d, p. 322.
327Schlesinger, op. cit., p. 264.
3281d_, pp. 264-265. :
329Hanigsberg, Supra Note 13, pp. 26-27 —__"Id. p. 27
PART IJ — THE WORLD’S LEGAL SYSTEMS 115
law tradition. The common law orbit may be considered roughly as refers to legal systems of those states that have socialized the
co-extensive with the English speaking world. means of production, expanded the role of the state or state-affili-
ated organizations in all spheres of social life, established a “van-
The United States imposed parts of the common law on its guard party,” and adopted Marxism as their official ideology.3*4
entrusted territories such as the Philippines. Even today in Africa
Clearly then, the conventional trichotomy-common law, civil
and Asia, former British colonies, such as India, continue to apply
law,
, socialist law. rests on classificato ie BS -
the common law.33! ., ry criteria that are not cory
sistently) applied.
: If one were consist * , SHE
_ ently to use the criterion 0
The strong influence of the common law in the Asian and economic, social and political faundam ditalaof tke s PAESTE
African parts of the British Commonwealth, though originally im- cialist law would have to be: contraste atals fins ol RAL Orin geof
. .
ported during a period of occupation or colonization, generally has
persisted after the end of that period. It appears, indeed, that upon ing from private owner ship of productive capital, a limited role 1;¢
government in ‘ society, and similar considerations.
Conversely, to
gaining independence most of the former colonial countries, tend- one were consistently t, apphPdassificitucy cetera serkains
ing to modernize their law in the interest of economic development, technical-legal factors, juribdietions generally classed BST sabiest”
swept out some of the customary and religious elements and could hardly qualify as a distinctive third group on the same plane
strengthened the Western or Western-influenced components of their with common and civil law. In fact, because countries that call
legal systems. Among other examples, one might cite India’s abolli- themselves socialist appeared mostly in areas of the world that
tion of the caste system, and the ambitious attempt made by the used to belong to the civil law orbit (like Russia), a lawyer trained
same country to modernize and “codify the customary law pertain- in civil law finds, at the level of legal form, much that is familiar to
ing to family relations and family property. The newly independent him in communist systems; many legal concepts are recognizable;
Commonwealth nations, moreover, invariably face fundamental prob- techniques of using legal materials are similar, and so are ways of
lems of constitutional law.°? drafting codes, structuring procedural institutions, and the like.335
The American impact upon the law of the Philippines has co a: socialist legal systems also has its oe ene
been strong and apparently lasting. Japan, essentially a civil law periphery. 12¢ 1%mer
includes the Soviet Union, the
sabes i
‘ies (Albania
country, in many ways shows the strong American influence of the saw Pact nations . 44 ¢ ore
post-war period, especially in its judicial organization and its con- and Yugoslavia) which are additional Be of tfiat £220 A mong Asian
stitutional and administrative law. Common law institutions, such nations, the People’s Republic of China, Kampuchea, Mongolia,
as habeas corpus, have been superimposed also on the legal order North Korea and Vietnam are usually included in the core group;
of South Korea, another civil law country.**3 so is one country in the Western Hemisphere — Cuba.**°
The most dramatic developments of the last seven years stem
8. The Socialist Tradition
from the break-up of the Soviet empire and of the Soviet Union
The contrast between common and civil law mainly draws on itself, the democratization of Eastern Europe and the unification of
divergent ways of handling legal materials, organizing the law, Germany. Along with other changes, “socialist law” is being aban-
making arguments, structuring the legal process, and similar fac- doned by most of the countries in which it formerly prevailed. This
tors of a legal-technical nature. When we extend the comparison to in turn raises the question of whether it makes sense to continue to
socialist law, the focus changes: now the emphasis is on features divide the world’s legal systems into three major groups: civil law,
related to extra-juridical factors, such as the socio-economic organi- common law, and socialist law.38"
zation, political structure and ideology. The label “socialist law”
3348chlesinger, op. cit., p. 812.

3357d,, pp. 312-313.
s31Y¢, 336g, pp. 311-312.
332Schlesinger, op. cit., p. 318. 337§chlesinger, Comparative Law (1994 Supplement), p. 68.
3331p. 319.
4, Distinctions between civil law and common law

In civil law countries, the primary source of law is legislation
through codes and statutes, while in common law, first and fore-
most, cases are usually considered the primary source of law. PART Ill — THE PHILIPPINE
Legislation as a source of law has been likened to a proverb, LEGAL SYSTEM
case law to a parable. There is something to these old characteriza-
tions. Legislation is general from its inception and in its original
statement. A legislative precept is a prescribed general rule, one
expressed as such in authoritative form by the lawmaking body
A. HISTORY AND SOURCES OF PHILIPPINE LAW
which is then applied to a particular case. By contrast, case law is
made up of rules inferred from decisions in past cases. The move- As a basis for the treatment of the sources of the laws in force
ment is from particular to general. in the Philippines, the legal history of this country may be divided
into ten periods. They are: (1) the pre-Spanish period; (2) the Span-
Secondly, in civil law countries, emphasis in deciding cases is
ish period; (3) First Philippine Republic (Malolos), (4) the American
given to general concepts, principles and doctrines of law. These
period; (5) The Philippine Commonwealth; (6) Second Philippine
concepts or doctrines are cumulative writings of law professors and
Republic (Japanese period); (7) Third Philippine Republic (1946);
legal experts on what the law is or should be after considering
(8) Martial Law Period; (9) Provisional Government Period; and
statutory or codal provisions which only gave broad guidelines for
(10) Fourth Philippine Republic.
the solution of actual cases. These law professors and legal experts
play an important role in defining the law. The first period comprises the centuries before 1521. The sec-
ond period begins from 1521, the year Magellan planted the sword
In common law countries, case law which are rules gathered
and the cross on Philippine soil, to 1898, covering nearly three and
from previous decisions are applied to decide cases. The judge get
a half centuries. The third period is the short-lived Malolos Repub-
most of the prestige, not the law professor.
lic. The fourth period comprises the years covered by the American
regime, from 1898, the year Admiral George Dewey defeated in
Manila Bay the Spanish fleet under Admiral R. Montojo, to 1941.
The fifth period is the Commonwealth period still under the United
States. The sixth period is the Japanese occupation. The seventh
period began with the inauguration of the Third Philippine Repub-
lic on July 4, 1946, up to the declaration of Martial law on Septem-
ber 21, 1972. The eighth pericd is the Martial Law period where
Congress was abolished and laws were promulgated through presi-
dential decrees. The ninth period was the provisional revolutionary
government of President Corazon Aquino. The tenth period is the
period commencing on February 7, 1987 when the 1987 Constitu-
tion was ratified and a new Congress was elected, up to the present.
1. PRE-SPANISH PERIOD
Philippine society during the pre-Spanish time was divided
into four classes: the nobles, the freemen, the dependents, and the
117
PART II — THE PHILIPPINE LEGAL SYSTEM 119
slaves. The nobles, consisting of the chiefs and their families, wielded
tremendous influence in the barangay and enjoyed rights that were a. The Maragtas —
not usually enjoyed by the other members of society. Next to the
The earliest known code of the Philippines is the Maragtas.
nobles were the freemen. They were composed of freemen and like-
“Maragtas,” a corrupted Visayan word, means “Great Country” or
wise of dependents who had earned their freedom.
“Great People.” It was promulgated by Datu Sumakwel of Panay
The dependents were those that were doing service to the about A.D. 1200. according to Guillermo Santiago-Cuino; in A.D.
chief or the freemen in payment of some debt. A dependent ac- 1212 according to Jose Soncuya; and in the middle of the 13th
quired his low status in society by inheritance, by failing to pay his century according to Beyer,?°9
debt, by purchase, or by committing a crime for which he was duly
The provisions of the Maragtas are as follows:
sentenced. The slaves were those that were captured in battle,
temporarily held by the conquering community. It must be noted, I. Deliberate refusal to work in the fields or to plant any-
however, that the lines drawn between the classes were not hard; thing for daily subsistence is one of the gravest of mortal sins
any member of the social classes could go up or down the social which deserves a severe punishment.
ladder depending upon the attendant circumstances.°8
a. The lazy one shall be detained and sold to the rich
The barangay was the unit of government and consisted of to serve as a slave and to learn the lesson of service and the
from thirty to 100 families. The Tagalog word barangay was de- work in the house and in the fields.
rived from the Malay balangay, a boat, which transported them to
b. Later, when he has been trained for the work and
these shores. Each barangay was independent and was ruled by a
he loves it, he shall be returned to his family and he shall no
chieftain (datu). He had wide powers for he exercised all the func-
longer be considered as belonging to the inferior class, but as
tions of government. He was the executive, the legislator, and the
a freeman who has been regenerated to live by the fruits of
judge. He was, naturally, the supreme commander in times of war.
his labor.
The source of laws during the Pre-Spanish period was the
c. If much later, it is found out that he has not re-
early customs and practices of the inhabitants of these islands.
formed in every way and he wastes his time in idleness, he
These laws were either customary or written. Customary laws were
shall be ejected again by the community and sent to the woods.
handed down orally from generation to generation and constituted
He shall not be allowed to associate with rest of the commu-
the bulk of the laws of the barangay. The written laws were those
nity because he is a bad example.
that the chieftain and his elders promulgated from time to time as
necessity arose. Only a few of the written laws, among them the II. Robbery of any sort shall be punished severely. The fin-
Maragtas Code, Code of Kalantiaw and the Muslim laws, have ger of the thief shall be cut.
come down to the present because many of them were destroyed by
III. Only those who can support a family or several families
the early Spanish missionaries and many more destroyed by the
can get married more than once and have as many children as they
elements.
can.
Although there have been scholarly researches that have come
a. The poor family can not have more than 2 children
out with the conclusion that both the Maragtas Code and the Code
because it can not support and bring up properly in the com-
of Kalantiaw are hoaxes, others still continue to believe in the munity a greater number of children.
existence of said Codes.
b. The children who can not be supported by their
parents shall be killed and thrown into the river.
38®Teodoro A. Agoncillo, History of the Filipino People, Quezon City, R.P. Garcia
Publishing Co., 1977, p. 22. 33°Jarencio, Philippine Legal History, Manila, Central Book Supply, 1964, p.
120 INTRODUCTION TO LAW PART III — THE PHILIPPINE LEGAL SYSTEM 121
IV. If aman had had a child by a woman and runs away THIRD ORDER
from her, his child by this woman shall be killed because it is
difficult for a woman without a husband to support a child. Obey ye; let no one have women that are very young; nor more
than he can support; nor be given to excessive lust. He who does
a. The parents of the woman shall disinherit her. not comply with or obey and observe this order shall be condemned
b. The village authorities shall look for the man and to swim for three hours for the first time and for the second time he
when they catch him and he still refused to marry her, he shall be lacerated with thorns.
shall be executed before the child of the woman he has aban-
doned. Father and child shall be buried in the same tomb.3“
FOURTH ORDER
b. The Code of Kalantiaw — Observe and obey ye; jet no gne disturb the
quiet of the graves,
The Code of Kalantiaw was written in the year 1433 A.D. by when passing by the Caves and trees where they are, give respect
to them. Who‘ does not ;
Kalantiaw, the third Chief of Panay. It was promulgated two centu- observe this order shall be killed by ants o
be beaten with thorns until hefdie. y r
ries after the Maragtas. “Kalantiaw” is a transposition of the word
“Lakan” meaning “Great Chief,” and “Tiaw,” a proper name, mean-
ing “solon or wise man.” Sometimes Kalantiaw is written Kalantiao.
FIFTH ORDER
The Code of Kalantiaw contains eighteen (18) sugo or orders.*41
Ye shall obey;
Its provisions are as follows: he who makes exchange of food, let it always be done
+n accord
ance with his word. He who does not comply shall be
beaten for one pour: he whor
CODE OF KALANTIAW ane day to the our;
a epeats the offense shall be exposed for
FIRST ORDER
Ye shall not kill; neither shall ye steal; neither shall ye do harm to SIXTH ORDER
the aged, lest ye incur the danger of death. All those who infringe Ye shall be obliged to revere sites that are held in respect, such as
this order shall be condemned to death by being drowned with
those trees of recognized worth and other sites. He who fails to
stones in the river or in boiling water.
comply shall pay with one month’s work in gold or money.
SECOND ORDER
SEVENTH ORDER
Ye shall obey; let all your debts with the chief be met punctually. They shall be put to death;,, .
Who shall not obey shall receive for the first one hundred lashes. If une *he who kills trees or valuable appear-
ances; he who shoots aITOW, at night at old men and women: he
the debt is large he shall be condemned to thrust his hand thrice who enters the house of the chief.;: :
into boiling water. For the second time, he shall be condemned to sharks or streaks crocodiles.
witho ission:
ut permission; and he who
be beaten to death.
EIGHTH ORDER
Slavery for one year shall be suffered by those who steal away
———_—_— women of the chiefs, keep ill-tempered dogs that bite the Chiefs
340Id., pp. 5-7 and burn the fields of others.
84d p, 7.
PART III — THE PHILIPPINE LEGAL SYSTEM 123
FIFTEENTH ORDER
NINTH ORDER
Concerning beliefs and superstitions; they shall be beaten; those
All these shall be beaten for 2 days; who sing while traveling at who injure or kill the young of Manul or white monkeys.
night; who sing like birds known as Manaul; who tears documents
belonging to the Chiefs; who tells malicious lies; and who mock the SIXTEENTH ORDER
dead.
The fingers of the following will be cut off; those who break the
idols of wood and clay in their Alongus (altars) and temples; those
TENTH ORDER who destroy the daggers of the priestess used for sacrificing pigs or
break their drinking jars.
It is an obligation to every mother to teach matters pertaining to
lust secretly to her daughters and prepare them for motherhood.
Let not men be cruel or harm their wives when they catch them in SEVENTEENTH ORDER
adultery. He who shall disobey this order will be killed by being cut
Those who shall be put to death; who profane sites where idols are
to pieces or thrown to the crocodiles.
kept and where the sacred things pertaining to their gods and
Chiefs are found. He who performs his necessities in these places
ELEVENTH ORDER shall be burnt.
They shall be burned; those who by their strength or cunning have

EIGHTEENTH ORDER
mocked at or escape punishment or who have killed young boys; or
try to steal away the wives of the old men Cadorang. Those who disobey the above orders if they are Chiefs; they shall
be put to death being stoned and crushed; and if they are old men,
TWELFTH ORDER they shall be placed in the rivers to be eaten by sharks and
crododiles.
They shall be drowned; all those slaves who interfere with their Done in the year 1433 A.D.
superiors or their owners or master; all those who abuse them-
selves through their lust; those who destroy their anitos by break-
ing them or throwing them down. Calantiao
Third Chief of Panay?
THIRTEENTH ORDER
c. The Muslim Codes —
They shall be exposed to the ants for half day; those who kill black The Moslem influence in the juridical development of the Phil-
cats during a new moon, or steal anything from the Chiefs and old ippines came from the Indonesian group by way of the Sulu Archi-
men, however small it may be. pelago and the Basilan Island. In Mindanao and Palawan, the
influence was contained. The Mohammedans who came to the Phil-
ippines possessed no codes or compilation of their customary laws
FOURTEENTH ORDER
although they had with them some written social rules and regula-
They shall be made slaves for life; those who have beautiful daugh-
ters and refuse to marry them off to the sons of the Chiefs and hide
3427d., pp. 7-13
them in bad faith.
124 INTRODUCTION TO LAW y PART II] — THE PHILIPPINE LEGAL SYSTEM 125
tions based on the precepts of the Koran. Just like the Spanish Was promulgated with the general com of all the datus,
conquistadores who brought along with them their friars, the Mos- Panglimas, and subordinate officers of the state.°4
lem invaders brought along with them their interpreters of the
When the Spaniards conquered the Philippines, they did no
Koran.
succeed to subdue the Muslims so that their efforts to impose their
There are five principal sources of the Moslem legal norms. legal system on them failed entirely. Even to this day, our govern-
The first of these is the Koran and the ethics growing out of its ment has to consider the moral and legal norms of the Moham-
interpretations. Second is the so-called traditions of Islam. This medan Filipinos. On Feb. 4, 1977, the Code of Muslim Personal
tradition is called the sunna, which means the unwritten law. This Laws was promulgated under P.D. No. 1083. This decree ordained
tradition is taken from the acts and words of instructions of the a code recognizing the system of Filipino Muslim Laws, codifying
prophet Mohammed. The Third is the kiyas or the deductions based these laws and providing for an effective administration and en-
on decisions in similar or analogous cases or situations. This is forcement of said laws among Muslims.
arrived at by the application of analogy, which is the etymological 7
meaning of the word “kiyas.” The fourth is the idjma or the general 2. SPANISH PERIOD
usages of the community based on the common consciousness, re-
gardless of the written rules growing out of the interpretations of After Magellan’s “discovery” of the Philippines on March 16,
the Koran and the sunna. The fifth is the hadiths which are opin- 1521, Spanish rule was established in the Philippines by 1565. The
ions given by the prophet Mohammed. “civilization” brought by the Spanish warriors and priests meant
the introduction of Spanish laws to the Philippines.
The elements of the Mohammedan system outlined above con-
eS stitutes the foundation of the Mohammedan jurisprudence, called There were two kinds of laws which were enforced by Spain in
\ fikh, which means intelligence or knowledge. the Philippines during its colonial rule. The first consists of laws of
Spain governing Spanish citizens which were extended to the Phil-
The Modammedan conquerors of Mindanao and Sulu estab- ippines by means of royal decrees; and the second comprises a body
w foxm;of government planned on lines similar to those of laws specifically enacted in Spain to specially govern the colo-
i ealipha ecm, adopted written codes of law for guid- nies.
ance in the adimjnistration of the state. The Mindanao Moros had
the “Luwaran,” othefWRe known as the laws of Maguindanao. The a. Spanish Laws
term “Luwaran” ” or “selected.” The laws that are
are selections from old Arabic law and Spain made applicable to the Philippines her own laws. To
translated for the guidance and information of understand the legal system introduced by the Spaniards in the
the Mindanao datus, judges, and pandi. o were not well-versed Philippines, we must first know the system of laws in Spain in the~
in Arabic. The Mindanao copies of thertLanwean’ do not give dates 16th century and their antecedents.
at all and nobody seems to know when this code was made. It is The first major settlers of Spain were the Iberians, about
said that it was prepared by the Mindanao judges sometime ago whom little is known, but historians tell us that they were prob-
but none of these judges is wp ye ‘ 343 ably related to the ancient Assyrians and Chaldeans and came to
2 0
Suh
Sy
Spain from Asia through Northern Africa. About twelve or thirteen
The other Moro code whié almost at the
Ora cag time with the “Luwaran” w the : Ce
centuries before Christ, the Celts — a people of Indo-European
This code was
a guide for the proper execution of the d°d in by stock — crossed the Pyrennees from France and occupied what is
in accordance
with the law and rules of the st te. It{was now modern Galicia and Portugal. Intermarriage between the Ibe-
al] and
3447d., p. 15
I
126 NTRODUCTION TO LAW PART III — THE PHILIPPINE LEGAL SYSTEM 127
rians and the Celts eventually produced a mixed race called the infantry legions. These Visigoths under Alaric pursued their erratic
Celtiberians.34° course, through northern Italy, the Po valley, down the Italian boot
to sack and plunder Rome itself in 410 A.D., then up again to
The rise of the Phoenician city of Carthage in North Africa southern France and Spain to settle there, confining the Suevians
brought the Iberian peninsula under Carthaginian influence, but to the west and northwest, displacing the Vandals who crossed over
not domination. The original interests of Carthage in the peninsula to Northern Africa.247
were silver and commerce, but by the middle of the third century
before Christ, conquest of Iberia became essential to Carthage, for Thus did Spain become a Visigothic kingdom. In 416, the
across the Mediterranean, another city, called Rome, was also ex- Visigoths established their capital in Barcelona; then in Toulouse,
panding, and rival expansionist ambitions inevitably brought these France; and eventually in Toledo.
two great cities into bloody and terrible confrontations known to
historians as the three Punic Wars. In 236 B.C. just six years after 1, The Brevarium of Alaric
the first of these wars, Hamilcar Barca of Carthage led his armies The Visigoths reduced to ‘written form the customary laws
into Spain and founded the city which to this day bears his name, which they had brought with them and produced the Codex Eurici
Barcelona. Hasdrubal, his son-in-law, who succeeded him upon his after the emperor Euric (467-485).°48
death on the battlefield, established his capital at Cartagena (so
called because the Romans referred to it as Carthago Nova). This Code of Euric, though promulgated by the conquering
Hasdrubal’s successor was Hamilcar’s son — Hannibal — undoubt- sovereign, was not intended to be general law for all the inhabit-
edly the greatest Carthaginian general of all. Hannibal’s military ants of Visigothic Spain; rather, it was meant to apply only to the
exploits are well-known. But in the end, Rome was the stronger conquerors. It was, in other words, personal, rather than territo-
city, and in 210 B.C., the great Roman general, Publius Cornelius rial, law. The subjugated Romanized inhabitants remained outside
Scipio, captured the city of Cartagena, pushed the Carthaginians its pale, these subject people being governed, with a good deal of
across the sea back to North Africa, and earned for himself the confusion, by whatever remaining traces of Roman law still re-
name Scipio Africanus. Carthage itself was at last destroyed, and mained among them — until Euric’s son, Alaric II, decided to do
Spain passed on to Roman sovereignty.°“® something about it.349
For the next six and half centuries, Spain was Roman terri- Alaric II formed a commission of Visigothic scholars with the
tory, indeed one of the most important Roman colonies. To Roman mission of formulating a body of laws for the conquered subjects,
Spain came the Vandals, the Alans, and the Suevians, occupying on the basis of known Roman law.®5°
Galicia and the southern regions, leaving however the greater part This compilation, which was otherwise known as the
of the land under Roman sway. But in the fifth century, the trickle Brevarium of Alaric, and the result of the labor and study of the
became a flood, pushed forward by pressure from a new and terri- commission, is a compilation of Gothic and Hispano-Roman law
ble presence in the North; the Huns, thundering from across the which had not become outmoded. The Roman element that went
barren wastes of central Asia, to pillage and conquer and destroy. into the code were the novels of the emperors Thoedosious II,
Not even the tall, robust Nordic warriors were a match to these Valentian ITI, Martian, Majoran, and Paulus, sixteen books of the
fierce barbarians. The East Goths were overwhelmed and brought Theodosian code,the Institutes of Gaius, five books of the Sen-
under subjection; the West Goths (Visigoths) fled southward across tences of Paulus, thirteen titles of the Gregorian code, two titles of
the Danube, and at Adrianople, their cavalry crushed the Roman
347Id., pp. 3-4.

345Balane, The Spanish Antecedents of the Philippine Civil Code, Quezon City, 348Rauchhaupt, Sources of Spanish Law, Heidelberg, 1923.
Law Center, 1979, p. 2. 349Balane, op. cit., pp. 6-7.
UP.
3467q_, pp. 2-3. 350d, p, 7.
128 INTRODUCTION TO LAW PART II] — THE PHILIPPINE LEGAL SYSTEM 129
the Hermogenian code, and a fragment of the Responsa of of two titles and contains some academic remarks on the aims of
Papinian.**! the compilation and on the general characteristics of law and legis-
After the code was approved and promuigated by Alaric II, it lation. Book II is composed of five titles and treats of the nature
remained in force officially for more than one hundred and fifty and binding force of the compilation. It also treats of the nature of
years, during which time the original text was expanded by the the administration of justice, procedure, evidence, and the validity
addition of certain fragments from Ulpianus and Modestinus.25? of written documents. Book III is composed of six titles and deals
entirely with the law of marriage which was placed under the
2. Fuero Juzgo exclusive jurisdiction of the ecclesiastical authority. Book IV is com-
posed of five titles and concerns the degree of relationship, inherit-
It will be recalled that in the course of the Germanic invasion ance, succession, and guardianship. Book V is composed of seven
of southern and western Europe in the fifth century, Spain was titles and covers the regulation of ecclesiastical properties, dona-
overrun by the Visigoths. The invaders brought with them their tions, sales, loans, deposits, mortgages, and other modes of credit
own law, known as the lex Visigothorum more specifically the Code transactions. Book VI is composed of five titles and treats of crime,
of Euric to govern the conquering Visigoths. The Brevarium of Alaric, punishment and torture. Book VII is composed of six titles and
on the other hand, governed the conquered subjects. One thing now treats of other crimes and misdemeanors. andethe method of the
was left to be done — the harmonious resolution of the unwieldy application of sanctions ¢ PeHeral.* oe 4s composed of six
system of legislacion doble. The obvious solution was the adoption titles and covers attackdes and regu i P ® ‘titles to property. Book
of a law that would be common to both the Visigoths and the IX is composed of three ticomposed os er
Hispano-Romans. And indeed, the time was ripe for this undertak-
military offenses,
and. asvdusposhook K real proper | ose and covers land
ing, considering the increasing social interaction between, as well subjects. Book
as the religious unity of, conqueror and conquered.*®8 XI and Book XII are composed of = fs ther related
variety of subjects, such as blasphemy, each and cover a great
About A.D. 650, the law of the two peoples were amalgamated agricultural matters, police, ete. overseas trade, clemency,
in a single compilation, which came to be known as Fuero Juzgo.
(“Fuero” being the Castillian term for a general code of laws.) It
In A.D. 711, the Moors under Tarik conquered Spain. Roderic,
was law for all Spain, binding both the conquering Germans and
the Visigothic King fell. Spain became first an emirate under the
the vanquished Hispano-Romans.”*54
Omay-yad caliphate of Damascus and later into an independent
£t
It contained twelve books divided into fifty-four titles com- emirate.

&
prising 559 laws, and presented the characteristics of a general

In 718 started the piecemeal reconquest of Spain from the
body of laws. It dealt, among other things, with judicial procedure,
Moors in Asturias. Later, the Moors withdraw from Galicia and
marriage, divorce, succession, matters pertaining to the Church,
Leon. In the 800’s, the Basques of Navarre established an inde-
donations, debts and pledges, criminal offenses, slaves, physicians,
foreign merchants, judicial conduct in the administration of justice, pendent kingdom. In the 900’s, the kingdom of Castille arose.
heretics, Jews, etc.355 In 1085, Toledo was liberated and soon after, Valencia was
The introductory title is of a constitutional character giving in captured. In 1164, Aragon and Cataluna were united as a single
outline form the election and duties of the king. Book I is composed kingdom called the Kingdom of Aragon. In 1230, Castile and Leon
were united into one kingdom, called the kingdom of Castile.
3. Fuero Real
__35!Rauchhaupt-op. cit.
3527.
In 1254-1255 came the first Code of Alfonso X, the King of
353Balane, op. cit., p. 10.
354Francisco, Legal History (East Publishing, Manila, 1951), p. 449 Castille: the Fuero Real. One motive which impelled him to take
385qh this action was the desire to unify the laws in force in order to meet
13¢ INTRODUCTION TO LAW
the advancing unity of the provinces which were being reconquered

one after another from Moslem domination (which started in A.D. These are some of the features of the Fuero Real. It was not a
711). code of general application, as shown by the fact that it was made
applicable as primary law in only some specified towns and there
The Fuero Real consisted of four books divided into seventy
only one at a time — like Aguillar de Campoo, Sahagun, Valladolid,
two titles containing five hundred fifty-five laws. It treated public
Burgos. What appears, therefore, is that this Code was primary
law from both the spiritual and secular points of view. It also estab-
law in some towns (i.e., those which had no special fuero) and only
lished rules for the regulation of domestic relations, property rights,
suppletory law in those towns which had a special fuero. The Fuero
wills, descent, administration, etc. There are some provisions re-
Real was at one and the same time a step forward and a cause of
quiring general observance of the precepts of the established reli-
gion which emphasized the role of the church in the process to
greater diversity and confusion.*°"
national unification. Some of the noteworthy civil law features of
4. Las Siete Partidas ,
the Code are:
The last and most celebrated of Alfonso X’s Codes was the
A. General provisions: Siete Partidas. A renewed compilation of Alfonso X, recognized as
(1) Ignorance of the law is not allowed as an excuse. the Justinian of Spanish jurisprudence, Siete Partidas were taken
largely from the Roman laws, and were fundamental in the law of
(2) Custom is not recognized as a source of law. Spain and her colonies.
B. The Law of persons and family: generally accepted view, the work of compil-
According to the
(1) Civil personality is acquired by anyone who is bap- ing the Partidas was begun in 1265. However, it did not receive
tized, irrespective of length of life — a marked de- official sanction after its completion. This was promulgated only in
parture from the 10-day requirement of the Fuero 1348 during the reign of Alfonso XI.
Juzgo. the sources which entered into its
The compilation mentions
C. The law of property: formation; namely, the natural and international law concepts of
Roman jurists, the canon law of the Decretum of Gratian, the di-
(1) Accesion natural is recognized and regulated — gests and code of Justinian, the opinions of the glossators and
something not provided for either by the Fuero Juzgo decretists of Canon and Roman law, the law of Gothic-Spanish
or local laws. The instances of accession natural origin, and the native laws or those of pure Spanish origin.
were: a) formation of islands (borrowed from the
Roman law); b) change of river course (giving own- It was divided into seven parts, each commencing with one of
ership of the abandoned bed to the owners of the the letters of its author’s name, Alfonso, and had one hundred and
adjacent lands proportionately — this is the same eighty-two titles comprising two thousand four hundred and sev-
rule in the Spanish Civil Code and is different from enty-nine laws.
ours); The First Partida embraced twenty-four titles, and treated in
D ‘The law of obligations and contracts: the first two of the natural law, and the laws of usages and cus-
toms, and in the remaining twenty-two, of the Holy Catholic faith,
i (1) The following contracts are regulated: sale, barter, religious doctrines and canonical laws. In it may be seen the ex-
lease, loan (both mutuum and commodatum), de- traordinary power exercised by the Pope and clergy of this period.
posit, pledge, donations, guaranty, and negotiorum
gestio.2°6
356Balane, op. cit., pp. 22-23.

357Id,, pp. 23-24,
rn
The Second Partida comprised thirty-one titles on public law, promulgated. This was in the reign of Alfonso XI, great grandson of
the first eleven of which treated of the prerogatives of the crown, Alfonso X. And even when the Partidas were finally decreed into
duties of the monarch to his family, officers and subjects, and reli- law, they were given only a lowly supplementary effect, after the
gious observances, the next nine of the duties of the people towards decrees of the Cortes, the Fuero Real, and the local fueros. This
the sovereign, and the remaining titles of military captives and suppletory role of the Partidas was again provided in the subse-
ransoms, public education, professors, organization of studies, etc. quent Laws of Toro. Centuries later, the order of preference or
prelation was once more laid down in Book III, Title Il, Law III of
The Third Partida treated, under thirty-two titles, first of
the Novisima Recopilacion, relegating the Partidas to a still lower
Justice and the benefits of its wise administration, the next twenty-
position of preference — after the Novisima and the Nueva, after
seven treated of the judicial organization and rules of possession
the Fuero Real, the Fuero Viejo, the Fuero Juzgo, and the local
and servitudes. Nearly all its provisions were Roman Law.
fueros.59
The Fourth Partida was divided into twenty-seven titles and
The Partidas were heralded as the most wonderful production
was dedicated to civil law, principally on family relations, while the the Las Siete Partidas
of the Spanish jurists. In the Philippines,
last seven considered feudalism, relations between lord and vassal,
have been quoted by the Supreme Court in its decisions.
and a dissertation on friendship which had little logical sequence
with that which preceded it. On October 19, 1469, Ferdinand of Aragon married Isabela of
Castile making possible the political unification of Spain, after a
The Fifth Partida comprised fifteen titles taken from the Ro-
long’ war of reconquest against the Moors.
man civil law on the subjects of obligations and contracts, includ-
ing loans, deposits, commodatum, sales, partnerships, mortgages In 1542, they defeated the Moors and reconquered Granada,
and pledges. the last remnant of Moorish rule. The vanquished Moorish Chief
Boabdil glanced at Granada for the last time, his eyes brimming
The Sixth Partida, under nineteen titles, continued the sub-
with tears. His wife Aixa scorned him: “Weep like a woman for
ject of civil legislation, the first fifteen treating of testaments, codi-
what you could not defend like a man.” The reconquest had been
cils, of heirs, successions, executors, intestates and partitions, and
completed.
the last four, of minors, orphans, tutorships, curators, etc.
The Seventh Partida treated of penal legislation under thirty- 5. Leyes de Toro
four titles, with a termination explaining the meaning of certain ler, Successor by right was her old-
In 1504, Isabela died and
words and rules. While defective in some particulars, this Partida ©" Ja Loca. But Juana la Loca,
est surviving child JU@™*
ina
is considered as the most advanced legislation of the times on crimi- propietaria tile, and in 1505 the
nal laws.358 mad oh not, was Re summoned at Tet renner
Castilian Cortes was Ferdinand’s eit Sete procdaia; m e ; Queen and
It is very probable that Alfonso intended the Partidas to be a to ratify her father gency. This Cortes
e of legislation passed by previous Cortes —
truly general law in his kingdom, to supplant the Fuero Juzgo, the also published a piec
1502, which had hithert not been promul-
Fuero Real and the local fueros, although it has been conjectured that of Toledo — in
that he might merely have intended the code as an encyclopedic gated. It was the promulgating Cortes that gave this law its name
treatise. Whatever his intentions may have been, however, the fact — the Leyes de Toro.
that for more than eight decades, the Partidas did not acquire the
The lawyers who were members of Cortez who met at Toledo
force of law. It was not until the Ordenamiento de Alcala de Henares,
in 1502, had requested the king to order a systematic codification
passed by the Cortes of that name in 1348 that the Partidas were
|
359Balane, op. cit., pp. 26-27

—s ee
*8Francisco, op. cit., pp. 450-451. 3607 d., p. 31.
unify the diverse strands of the Fuero Real, the Partidas, the Ordi-
nance of Montalvo, the Laws of Toro, and the other laws; it also
of all the laws in force. The work was done by a Commission com-
contained royal decrees and legislative enactments up to the time
posed of Galindez de Carvajal, Juan Lopez de Rubios, and the
of its preparation. It was composed of nine books in 214 titles and
bishops of Cuenca, Zapata, Mojica, Tello, and Santiago.*®!
3,391 laws; it is the fifth book which deals with civil law and a few
The Code had eighty three different laws placed one after features are noteworthy.
another. It treats of the sources of law, inheritance, succession,
marriage, criminal law, civil procedure, criminal procedure, per- Examples:
sons and family relations, etc. Unlike the previous compilations,
(1) Husbands, at least 18 years of age, could administer their
the Leyes de Toro had full binding authority and remained in force
property and that of their wives.
until the appearance of the modern codes. When the Nueva
Recopilacion and the Novisima Recopilacion were promulgated later (2) All assets existing at the time of the dissolution of the
on, all the provisions of the Leyes de Toro were included.°? marriage were presumed conjugal.364
If the purpose of this compilation, however, was to clarify the
6. Nueva Recopilacion
state of the law, it was a dismal failure. Its organization was sloppy,
The beginning of the sixteenth century ushered in the period its integration inadequate, its explanations unclear. Worst of all, it
of renaissance and of great colonial expansion. It was several years retained the Order of Prelation of the Ordinance of Alcala and the
after the promulgation of the Leyes de Toro that the idea of compil- Laws of Toro and therefore, did not repeal the earlier laws.365
ing the varied laws and compilations and abrogating at the same
time all provisions which have fallen into desuetude had taken 7. Novisima Recopilacion
hold of the legal minds of the country. There were two reasons for
Towards the end of the 18th century (1798), Charles IV, wish-
this tendency. The first was the fact that the Leyes de Toro, while
ing something to be done about the legal situation, commissioned
the best so far promulgated, only resolved the most controversial
Juan de la Reguera Valdelomar, a jurist, to revise the Nueva
questions. The second was the continuing prosperity and the rising
Recopilacion. The work was submitted to the King in 1802, and on
standards of living which required the enactment of new measures
15 July 1805, it was promulgated under the title: “Novisima
to cope with the changing times. Accordingly, several petitions were
Recopilacion de las Leyes de Espana.” It was structured along the
addressed to Charles V who saw the need and granted the peti-
same lines as the Nueva, consisting of 12 books with 340 titles and
tions.°63 4,020 laws. The civil law portion is found in Book X with 24 titles.
The first'of these codes was completed in 1562. After some
Worth mentioning among the provisions are:
further revision, Philip II, who had in the meantime succeeded
Charles V, sanctioned the compilation in 1567. Philip II, seeing the 1) a provision renewing a lease for one year if no notice to
great and urgent need for law reform, commissioned a minister of vacate had been given prior to expiry date;
his Council, named Bartolome Lopez de Arrieta, and, upon this
2) the prohibition of subleases;
man’s death, another jurist, Bartolome Atienza, to undertake this
difficult task. On 14 March 1567, the resultant compilation was 3) the adoption, as the law on marriage, of the Tridentine
promulgated by His Majesty under the title “Nueva Recopilacion de decree on this subject;
las Leyes de Espana.” This new code sought to incorporate and
364Balane, op. cit., pp. 33-34.

361Pascual, op. cit. (Note 6), pp. 124-125. 3657 d., p. 34.
367d. p, 125.
363g, pp. 125-126.
INTRODUCTION TO LAW PART III — THE PHILIPPINE LEGAL SYSTEM 137
136
of boys was not until 1870 that a systematic penal code was promulgated.
4) the requirement of paternal consent to mannaee
io). This code was later amended in 1876. This Penal
below 25 years and girls below 23 (requisito necesar Code was ex-
tended to the Philippines by royal decree in 1887.
The important feature of this compilation was its Peers
ity.
over all existing compilations, including the fueros of the nobi c. The Codes of Civil and Criminal Procedure
tic compila-
The Novisima Recopilacion, however was not a systema
on of antiqua ted and obso- The Code of Civil Procedure was published in 1855 while the
tion. It suffered greatly from the inclusi
of those which were still in inte. Code of Criminal Procedure was published in 1879. The final step
lete laws and from the omission
rapid y in the codification of Spanish law took place in 1889 with the publi-
The code suffered much from these defects, consequently,
lost much of its use. However, to save it from total oblivion, it
was cation of the Civil Code. They were extended to the Philippines in
promulgated as a secondary source of law.
1888. .
d. Civil Code ry
8. Modern Spanish Codes
On 8 May 1851, the Commission submitted a draft of a Civil
In 1811, the Cortez assembled at Cadiz passed a resolution
ofai Code, divided into a preliminary title and 3 books, containing a
providing for the steps to be undertaken for the codification
proced ura total of 1,992 articles. The first book was
the laws in force in Spain concerning civil, penal and on Persons; the second,
of five eminent Jupisponsuit on Property and Ownership; and the third, on the Modes of Acquir-
matters. In 1813, a code commission
e’ : ing Ownership. (Contracts were given as one of such modes.) Dis-
was appointed. The work was begun immediately and continy
finished . satisfaction with this draft, as well as deep-seated opposition from
through the nineteenth century before all the codes were
the regions, again caused the project to be pigeonholed.367
a. Codigo de Comercio On 2 February 1880, another royal decree called for codifica-
pub- tion, and this time the composition of the Code Commission was
The first of these was Codigo de Comercio which was
d after the French Code of trans-regional, with members representing Cataluna, Aragon,
lished in 1830. This code was modele
of the Court of Bilbao of 17 37 Galizia, Navarre, and the other regions. Working on the Project of
Commerce of 1807 and on the decrees
revised on several occasions, one in 1760, another in 1851 as a point of departure, the Commission held conferences and
which was
1769, and the last one in 1787. In 1819, it was augmented by the hearings and exerted efforts to reconcile the laws of the different
IN
Cortez which met at Cadiz. In 1827, it was revised and became the fueros. In 1881, a proyecto de Bases — an outline of bases for
provisional code of commerce of Spain. It remained in provisional fundamental points — was submitted to the Senate, and in 1881,
operation for nearly two years until 1830 when, as Codigo de the draft of the first two books — on persons and on property. The
Comercio, it finally took effect. This code was extended to the Phil- work, however, was suspended again, owing to some unfavorable
political developments. But momentum had been gained, and three
ippines by royal decree on December 1, 1888.
years later, the Minister of Justice presented a proposed ley de
Penal law
Bases — fundamental points on which the Civil Code was to be
b.
based, totalling 27 in number — to the Cortes, which, however, due
con-
The criminal law of Spain was first codified in 1822 and to irresolution and its dissolution, failed to decree it into law. But
was replace d by the Penal Code of of 1848. It
tinued in force until it on 11 May 1888, it became law by royal fiat. The draft of the Code
was patterned after the French Penal Code of 1810. Largely on the having been completed by the Code Commission, a royal decree of 6
efforts of Pacheco, this code was superceded by the Penal Code of October 1888 ordained the publication thereof. On 11 February
1850 which was merely a revised version of the previous ones. It 1889, it was decreed that the new Code would take effect on 1 May
367Balane, op. cit., p. 40.

3667. pp. 35-36.
the definitive
of that year, but it was actually on 24 July 1889 that
Code.36
text of the Code was promulgated. Spain had a Civil 6. Decretos or impor ¢antresolutions or laws of general char-
although acter of the king which are pyjrted and published.?”°
This code was based primarily on the Code Napoleon
and some of its provis ions dis-
the defects of the latter were remedied 7. Cartas Abiertas or circulars directed to all without
on the provis ions of prior com-
improved. The code was also based tinction.
pilations.
The first real effort towards the compilation of colonial laws
g to
The Civil Code, with the exception of the portion relatin was the one undertaken by Juan de Ovando. In his honor the
in 1889.
marriage was extended to the Philippines by royal decree compilation was called the Codigo Ovandino. It was also known as
the Recopilacion de las Indias which Philip II, for whom the Philip-
b. Colonial laws pines was named, promulgated in a royal decree in 1570 and sent
In governing the colonies, the king was assisted first
by the to the different viceroys and audencias to be carried into effect. The
Cas@ de Contratacion, or Board of Trade, established in 1503 and compilation is divided into several books and treats of the temporal
o de and spiritual governments of the colonies, of the administration of
headquartered in Seville, and then, from 1524, by the Consej
Indies. The of navigation and com-
las Indias, the Royal and Supreme Council of the
justice, of the natives, of real property,
s, “had suprem e jurisdiction merce, of mines, etc.?”"
Consejo, composed chiefly of lawyer
ultima tely] over all the colo-
[i.e., supreme, but subject to the King In 1624, the Council of the Indies itself took a hand in the
viceroy s and govern ors were
nies; all the laws and ordinances of matter of the compilation of colonja] Jaws by instructing Antonio de
to frame laws.” Thus, the
subject to its approval, and it had power Leon Pinelo to make one. Pinelo wigely omitted the repealed laws
run
government, as well as the various affairs of the colonies, was and abstracted those still in force to reduce the bulk of the work.
or governor, but subject to a vast assortment of years of diligent work, he submitted a draft to the Coun-
by the viceroy After ten
— variously called cedulas, decretos, resoluciones, cil of the Indies, but it was not made ready until 1677 due to
decrees
by the King of time
ordenamientos, reglamentos, pragmaticas, etc. — issued numerous additions and revisions occasioned by the length
or by the Consejo in his name.3 necessary to compile it. In 1680, it was approved by a royal decree
The laws governing the colonies were enacted in Spain
and and went into effect in the colonigs as the Recopilacion de Leyes de
transmitted in any of the following forms: los Reinos de las Indias. It was composed of nine books, divided
into two hundred eighteeen titles consisting of 6,377 laws. Among
1. Cedulas or royal decrees emanating from superior tribu- other things, it contains provisions on public law, ethics, laws for
nals in the name and by authority of the king. the government of colonies concerning political, military, religious,
2. Ordenamientos or orders emanating from the king but and fiscal administration. Concerning ecclesiastical law, there are
provisions which governed the church and the state and divided
different from cedulas or royal decrees merely in form.
the colonies into archbishoprics, bishoprics and parishes. Concern-
3. Reglamentos or written instructions issued by competent ing political administration, the colonies were divided into vice-
authority. royalties, audencias, provinces of the royal treasury (provincias de
4. Resoluciones or opinions given by a superior authority
on oficiales de la hacienda real), provincial military governments
(adelantados), government districts (gobernaciones), high magis-
matters referred for decisions.
tracies (alcadias mayores), low magistracies (corrigimientos), sim-
5. Autos Accordalos or judicial decisions or sentences. ple magistracies (alcadias ordinarios y de hermandad), and mu-
nicipal districts (consejos). The provisions on ethics deal with the
3687 q.
369Balane, op. cit., p. 37 370Pascual, op. cit. (Note 6), pp. 114-115
371Jd., p. 115.
140 INTRODUCTION TO LAW PART LI] — THE PHILIPPINE LEGAL SYSTEM 141
rules regulating righ and just conduct and the relation among the On January 21, 1899, following formal passage by Congress the
natives and the Spaniards.372 day previous, President Aguinaldo promulgated the Constitution,
and ordered that it should be “kept, complied with, and executed in
all its parts because it is the sovereign will of the Filipino people.”
3. THE FIRST PHILIPPINE REPUBLIC (MALOLOS) was forwarded by Aguinaldo to General
A copy of the Constitution
The Malolos Constitution took its name from the capital town Otis, the Military Governor, with the comment that the people
of the Filipino revolutionary government located in the province of “have adopted the form of government most compatible with their
Bulacan. The background of this Constitution is found in the cen- aspirations.”
turies of Spanish rules over the Philippines, insurrections, first Like the American and other modern constitutions, the Malolos
against the authority of Spain “her bad government,” and later Constitution was not a new creation. Prior constitutional projects
against the assumption of sovereignty by the United States, and in the Philippines had a molding influence. The Cartilla and the
the gradually increasing sense of nationality which nourished in — the charter and code of laws and morals
Sanggunian-Hukuman
the blood of martyrdom, grew into a common and ardent desire for drawn up by Emilio Jacinto (1896); the provi-
of the Katipunan,
independence.
sional Constitution of Biak-na-Bato (1897), modeled after a revolu-
A dictatorial government was first established by a proclama- tionary Constitution of Cuba, prepared by Isabelo Artacho and Felix
tion of Aguinaldo, promulgated on May 24, 1898. Such a govern- Ferrer; the constitution for the island of Luzon promulgated on
ment, according to the proclamation, was “to be administered by April 17, 1898 by Gen. Francisco Macabulos; the provisional Con-
decrees promulgated upon my responsibility solely,” until the Phil- stitution of Mariano Ponce prepared in Hongkong in April 1898
ippines shall be “completely conquered and able to form a constitu- upon orders of General Aguinaldo, following Spanish Constitutions;
tional convention and to elect a president and a cabinet in whose the Constitutional Program of the Philippine Republic drafted by
favor, “I will duly resign the authority.” One month later, the Apolinario Mabini which was submitted to the revolutionary gov-
dicatatorial government gave way to the revolutionary Government, ernment in Cavite on June 6, 1898; and the autonomy projects of
with Aguinaldo as President. The objects of the revolutionary Gov- Paterno (1898) — all were to evolve into the Malolos Constitution.
ernment, according to the proclamation providing for its temporary
The preamble of the Malolos Constitution reads: “We, the rep-
Constitution, were “to struggle for the independence of the Philip-
resentatives of the Filipino people, lawfully convened, in order to
pines, until all nations, including Spain, shall expressly recognize
establish justice, provide for common defense, promote the general
. and to prepare the country for the establishment of a real repub-
welfare, and insure the benefits of liberty, imploring the aid of the
ic.
Sovereign Legislator of the Universe for the attainment of these
Pursuant to the organic decree of June 23, 1898, made ends, have voted, decreed, and sanctioned the following political
effec-
tive by decrees of September 4 and 10 of the same year, the revolu- Constitution.”
tionary Congress convened in the church of Barasoain near Malolos,
The Charter then organizes a Filipino state called the Philip-
Bulacan, on September 15, 1898. Eighty-five deputies, some elected
pine Republic, sovereignty residing exclusively in the people. The
and some appointed, responded to the summons. Pedro A. Paterno
national and individual rights of Filipinos and aliens are next speci-
was elected President, Benito Legarda as Vice President, and
fied. These provisions are in the main literal copies of articles of
Gregorio Araneta and Pablo Ocampo as Secretaries. The rules of
the Spanish Constitution. The Bill/of Rights includes religious lib-
the Spanish Cortes, slightly modified, were temporarily adopted.
erty; freedom from arbitrary arrest and imprisonment, a provision
Congress approved the Constitution on November 29, and was like that of Spain; recognition of what amounts to the writ of ha-
immediately transmitted to General Aguinaldo for promulgation. beas corpus; sanctity of domicile; prohibition of unreasonable
searches and seizures; right to choose one’s domicile; inviolability
of correspondence; prohibition of criminal prosecutions unless in a
3727, pp. 116-117. competent court and according to law; protection of private prop-
erty, reserving to the government the right of eminent domain; The President was given the power to command the army and
nye
Yy
inhibition against the payment of any tax not legally prescribed; navy, and to declare war and ratify treaties, with the previou
ohne
s
freedom of speech and press; right to form associations; right to consent of the Assembly. He had the following prerogatives: (1)
WIS
to
Prewmypane
petition; permission to establish educational institutions; compul- confer military and civil employment according to the laws;
fo agua }
(2) to
bp
.
sory and free popular education; right of expatriation; prohibition appoint the Secretaries of the Government; (3) to direct the
diplo-
of trial under special laws or by special tribunals; prohibition against matic and commercial
IS/
relations with other countries; (4) to see that
WD
laws of primogeniture and the entailing of property; prohibition of speedy and complete justice was administered in the entire
terri-
acceptance of titles of honor or nobility from foreign nations with- tory; (5) to pardon offenders; (6) to preside over national ceremo-
Wy
out authorization of the government, and of the granting of such nies and to receive foreign diplomatic representatives.
“) YY».
A
honors by the Republic. The Constitution also provides (Article 28)
Y
3
We The functions of the éxecutive department are to be performed
(e
De
that “the enumeration of the rights granted in this title does not
imply the prohibition of any others not expressly stated.” by the council of the government, composed of a Preside
nt and
Yo Ax
seven Secretaries. The seven portfolios are: Foreign Affairs,
Wie jan
wo
Inte-
Every Filipino has the obligation of defending the country and rior, Finance, War and Navy, Public Instruction, Public
Communi-
u“ mY;
contributing to the expenses of the state.
wave
cations and Works, and Agriculture, Industry, and
Commerce, The
Secretaries are made jointly responsible to the Assembly
A government is established which was expected to be popu- for the
(Vo
wo
general policy of the government, and individually respons

lar, representative, and responsible, exercised by three independ- ible for
their personal acts. An important duty of the cabinet
lynabenyh
ent powers called the legislative, the executive, and the judicial. is that of
payuwyyY
+}
annually presenting a budget to the Assembly. It is to be presumed

yy
Profiting from prior experience, the church and the state were made
4
that such a plan would evolve into responsible government.

Mig
separate.
h
x
~~
The judicial power was vested in one Supreme Court of Jus-
ef"
f
y= The legislature under the Malolos Constitution was Gnicam-

wa ‘
~- -<eral. It was called the assembly of representatives. The members tice and in the other courts to be created by law. The member
fe
ship,
4 “were to be elected for a term of four years. Secretaries of the govern- organization, and other attributes of the courts were to
be gov-
hi
erned by the special laws. The President of the Supreme Court

nt
Dayar yy
ment were to be given seats in the Assembly. Sessions were to be of
ad
Justice and the Solicitor-General were to be appointed by
ane
2 ¥annual, for a period of at least 3 months. Bills could be introduced the Na-
yg
tional Assembly in concurrence with the President of the Republi

‘
a either by the President of the Republic c

or by a member of the Assem-
of the Secretaries of the government. They should be absolut
<hbly. No bill could become a law unless passed by the Assembly, with ely
sy
8
independent from the legislative and executive departments.
=
\
at least one-fourth of the total number of members present. The As- They
Maan
MII
are given the power to apply the laws in civil and criminal
sembly was to have general legislative powers; in other words, it could cases, in
Wan
the name of the Nation. One system of law is to be establi
pass any law unless prohibited in the Constitution. shed
weo
throughout the Republic for all citizens.
hy
The Assembly would have the right to select its own officers.
wii
However, the central and all pervading idea of the Constitu-

wy
ni v‘
It would have the power to censure and interpellate. It would have
ca
tion was to insure the predominance of the legislature.
the power to impeach the President, the cabinet members, the This is
o/b
explained by Calderon in the following word: “While I proclai

Chief Justice of the Supreme Court, and the Solicitor-General. A med
the principle of the separation of powers, I conferred upon
permanent commission of seven, elected by the Assembly, was to sit the
legislative such ample powers in the Constitution that in reality
while the Assembly was not in session. it
had the power of supervision over the executive and
The executive power was vested in the President of the Re- v —) judicial
branches; and in order to make this supervision more effectiv
e, in
public who should exercise it through his Secretaries. He was to be imitation of the Constitution of Costa Rica, I established what is
elected by an absolute majority of the assembly and special repre- known as the permanent commission, i. €., 2 committee compos
ed of
sentatives assembled in constituent assembly. His term was four members of Congress who are to assum €é all the powers of the same
years, and he could be re-elected. No vice president is provided for. while not in session, with sufficient powers to adopt any urgent
INTRODUCTION TO LAW PART III — THE PHILIPPINE LEGAL SYSTEM 145
144
in a word, it can be said that the To help relieve the tension between the Americans and the
measures in case of emergency;
omnimodo) Filipinos, President McKinley sent a peace commission to the Phil-
Congress of the Republic was the supreme power (poder
ippines. The Commission, which was led by Jacob Gould Schurman,
in the whole nation.” included Major-General Elwell Otis, Rear Admiral George: Dewey,
Constitution was the first republican constitu- Charles Denby, and Dean C. Worcester. The group was supposed to
The Malolos
tion consist-
tion in Asia. It was framed by a revolutionary conven investigate conditions in the islands and make recommendations to
pines of the time. The
ing of some of the ablest men in the Philip the president. The commission was also directed to ease the peace-
d it included 40 lawyers, 16 physicians, 5 phar- ful extension of American sovereignty throughout the Philippines
CGenerass bal famed 1 an 1 Pri€—. The Congress consisted in part
of delegates elected under the AUSPi¢gs of the revolutionary govern- and to secure the protection of the life and property of the inhabit-
ants.
ment, Other delegates were appointa py General Emilio Aguinaldo
due to dis- The commission arrived in. Manila on March 4, 1899, and
to represent provinces which could not be represented made America’s plans for the Philippines known to the people.
tance, war conditions, or other reasons. They spoke of American’s humanitarian purpose in liberating the
Filipinos from Spanish tyranny and the ideal of political self-rule
4. THE AMERICAN PERIOD through the blessings of liberty. They promised the people that
Admiral Dewey’s victory over the Spanish armada in Manila America would promote their welfare through the guarantee of
Bay, followed by the capture of Manila by the American forces and their civil rights, protection against exploitation, improvement of
the formal ratification of the treaty of peace with Spain transfer- public works and communications on the islands, and establish-
ring Spanish sovereignty over the Philippines to the United States, ment of an honest civil service and a fair system of taxation.
marked the inception of American constitutional history in the Phil-
In January 1900, after several months of observation, the
ippines. Schurman Commission returned to the United States. In its report
General Aguinaldo, President of the newly formed Philippine to the president, it pointed out that American withdrawal from the
Republic was not prepared to accept American sovereignty. The Philippines would result in anarchy. Although Schurman went away
Filipino rebels felt the Americans had betrayed them, and they thoroughly convinced of the sincerity of the Filipinos’ desire for
were prepared to fight the new imperial power occupying their independence, he felt that in view of their political inexperience
land as vigorously as they had fought the previous one, On Febru- and educational backwardness, they were not ready for self-gov-
ary 4, 1899, an American army private on patrol near the San Juan ernment on a national scale. However, the Commission recom-
Bridge shot and killed a Filipino soldier crossing into American mended the establishment of civil government under American con-
lines. Thus began the Philippine-American War which was to last trol, self-government on the local level, and the introduction of free
public education throughout the nation.
three years.
The Filipino rebels were outgunned and outmanned by the A second Philippine Commission, headed by William Howard
American forces. Rebel strongholds were rapidly taken by the Ameri- Taft, was appointed by President McKinley on March 13, 1900. The
cans, Aguinaldo was forced to move his government several times, other members of the group were Dean C. Worcester, Henry C. Ide,
and he finally went into hiding where he remained undiscovered Luke E. Wright, and Bernard Moses. The commission was author-
for more than a year. The rebels adopted the tactics of guerilla ized by the President to aid in the work of transferring the govern-
warfare — quick attacks by small bands of men — directed from ment of the Philippines from the military to civil authorities.
their refuge in the mountains of Luzon. Guerilla districts were
organized all over the country; each district was under the com- a. Organic Laws
mand of a general officer, who communicated with the others Under the American system of law and government, the con-
stitution of a territory under the direct control of the federal gov-
through a system of codes and couriers.

civil government was initiated by the appointment of the Taft com-
mission to which civil authority was to be gradually transferred.
ernment is known as an organic law. Usually it is an enactment of On September 1, 1900, the authority to exercise, subject to the
Congress. Chief Justice Waite of the United States Supreme Court approval of the President, “that part of the military power of the
said: President in the Philippine Islands which is legislative in its char-
acter” was transferred from the military government to the Com-
“The organic law. of a Territory takes the place of a constitu-
mission, to be exercised under such rules and regulations as should
tion poithenendameptal law. of the local government. It is obliga-
ne territorial authorities; but Cong be prescribed by the Secretary of War, until such time as complete
preme, and for the powers of this depa ress is su-
rtment, its soueneinent civil government should be established, or Congress otherwise pro-
authority has all the powers of the vided.
people of the United States
except such as has been expressly or
by implication reserved in the
prohibitions of the Constitution.” The legislative power was vested in a unicameral body called
(National
Yankton, 101 U.S. 129, 132; US. v. Bull, 15 Phil. 7) Bank v Country of the Philippine Commission. Its legislative authority includes “the
an making of rules and orders have the effect of law for the raising of
revenue by taxes, customs duties, and imposts; the appropriation
Previous to the enactment of any organic law by Congress, the
of govern- and expenditure of public funds of the Islands; the establishment
President of the United States may provide a system
of an educational system to secure an efficient civil service; the
ment for a territory newly acquired through conquest or treaty. He
organization and establishment of courts; the organization and es-
may legally do so by virtue of his arm powers, he being the Com-
forces. His orders and instruc- tablishment of municipal and departamental governments, and all
mander-in-Chief of the American
other matters of a civil nature which the military governor is now
tions for the administration of the territory also come under the
nlA
competent to provide by rules or orders of a legislative character.”

class of organic laws.
principal organ. This grant of legislative power to the Commission was to be
The of the 1935 Co’ c laws of the Raa previous to the
he President’s Inst ruc- exercised in conformity with certain declared general principles,
Q adoption he Second ppj] 2Stitution wer
1900; the and subject to certain specific restrictions for the protection of indi-
j
snd ippine, Commission of April 7,
Amendment adopted vidual rights. The Commission were to bear in mind that the gov-
gress of July 1, 1902, otherwise calle ernment to be instituted was “not for our satisfaction or for the
d the hilippine Bill; and the
Act of Congress of August 29, 1916, expression of our theoretical views, but for the happiness, peace,
IN
otherwise designated as the

Philippine Autonomy Act or the ones and prosperity of the people of the Philippine Islands, and the
Law. Some of the acts of
Congress embodied provisions of statu measures adopted should be made to conform to their customs,
tes of the Philippine legisla-
ture expressly or by mere reference. their habits, and even their prejudices, to their fullest extent con-
By this form of Sonigisasional
reenactment, the said provisions beca sistent with the accomplishment of the indispensable requisites of
me part of the Philippine
just and effective government.”
organic laws.
® b. Pres, McKinley’s Instructions of The specific restrictions upon the legislative power were found
April 1900 in the declarations that “no person shall be deprived of life, liberty,
For the guidance of the Taft comm or property without due process of law; that private property shall
ission, the President of the
‘ United States had issued his Instruct not be taken for public use without just compensation; that in all
ions of April 1900. The legis-
lative power conferred these Instruct criminal prosecutions, the accused shall enjoy the right to a speedy
ion 8 upon the Commission
included, among others, the organiz ation and public trial, to be informed of the nature and cause of the
and establishment of courts
and the organization and establishmen accusation, to be confronted with the witnesses against him, to
t of municipal and de part-
have compulsory process for obtaining witnesses in his favor, and
mental governments. to have the assistance of counsel for his defense; that excessive bail
inley desired to transform the military
President into a shall not be required, nor excessive fines imposed, nor cruel and
rapidly as conditions would permit. After
civil governmeny, , Schurman full
Commission, the organization of
investigation by
148 INTRODUCTION TO LAW PART II — THE PHILIPPINE LEGAL SYSTEM 149
unusual punishment inflicted; that no person shall be put twice in This measure put an end to the military government over the
jeopardy for the same offense or be compelled in any criminal case greater portion of the Archipelago. It gave the President authority
to be a witness against himself; that the right to be secure against to establish a truly civil government. He was to do so no longer in
unreasonable searches and seizures shall not be violated; that nei- his capacity as military commander but in his civil capacity as
ther slavery nor involuntary servitude shall exist except as a pun- President of the United States.
ishment for crime; that no bill of attainder or ex-post facto law shall
be passed, that no law shall be passed abridging the freedom of President McKinley did not change the form of government
speech or of the press or of the rights of the people to peaceably established by him under his war powers; but in June 1901, exer-
assemble and petition the Government for a redress of grievances; cising the civil authority conferred upon him by the Spooner Amend-
that no Jaw shall be made respecting an establishment of religion ment, he created the office of Civil Governor to take effect on July 4
or prohibiting the free exercise thereof, and that the free exercise
of the same year, and the executive power exercised previously by
and enjoyment of religious profession and worship the military governor, was transferred to that official.
without dis-
crimination or preference shall forever be allowed.” The order of the President of June 21, 1901, appointing a civil
Pres. McKinley’s Instructions were issued under the war pow- governor is as follows:
ers of the President of the United States which are so vast as to
“On and after the 4th day of July, 1901, until it shall be
include not only purely executive but also legislative and judicial otherwise ordered, the President of the Philippine Commis-
functions of government to be exercised within any territory under sion will exercise the executive authority in all civil affairs in
the control of the American military forces. The Instructions organ- the government of the Philippine Islands heretofore exercised
ized a government for the Philippines, quasi-civil in form in the in such affairs by the Military Governor of the Philippines,
sense that its administration was placed in the hands of civilians.
and to that end the Hon. William H. Taft, President of said
This government took over the control of most of the country from Commission, is hereby appointed Civil Governor of the Philip-
the hands of the army authorities who were then in charge of the pine Islands. Such executive authority will be exercised _un-
military occupation. The principal organ of administration and leg- to the Philippine
der, and in conformity to, the instruction,
islation was known as the Philippine Commission. The military Commissioners, dated April 7, 1900, ang subject to the ap-
basis of this government came to an end when the Congress of the proval and control of the Secretary of War of the United States.”
United States assumed full control over the Philippines by passing
the Spooner Amendment in 1901. Soon afterwards, President McKinley created four executive
departments (Interior, Commerce and Police, Finance and Justice)
@) c. The Spooner Amendment of March 2, 1901 and the office of Vieg-Governor, On June 11 1901, the Philippine
Commission enacted Act hacia oe established a new judiciary
The first action of the U.S. Congress asserting its right to courts of first
in the Philippines consisting of a Supreme Court,
govern the Philippines was expressed in the Spooner Amendment,
which
instance and justice of the peace courts. The Spanish Audiencia
was in the form of a rider to the Army Appropriations Bill
passed by Congress on March 2, 1901. This amendment provided: and courts of first instance were abolished but the justice of the
peace courts created by the Military Governor in 1898 were al-
“All military, civil, and judicial powers necessary to gov- lowed to continue.
ern the Philippine Islands acquired from Spain by the treaties The Spooner amendment did not change the form of the gov-
concluded at Paris on December 10, 1898 and at Washington ernment which had been established by the President under his
on November 7, 1900 shall, until otherwise provided by Con- war powers but-it.didmake a fundamental change in respect to the
gress, be vested in such manner as the President of the United legal au thority exercised hy the President in this country. From
States direct, for the establishment of civil government, and legally speaking, dates the commencement
this time (July 4, 190
for maintaining protecting the inhabitants of said Islands in of civil government (Severino y, Governor-General, 16 Phil. 366,
free enjoyment of their liberty, property, and religion.” 382 [1910]). The Government of the Philippines continued in that
PART IIT — THE PHILIPPINE LEGAL SYSTEM 151
form until Congress assumed full control by the enactment of the

Act of July 1, 1902, otherwise called the Philippine Bill of 1902. Sergio Osmena was
the delegates were a he iii the Assembly,
a) d. The Philippine Bill of 1902 office in the Spanish Kent a oe nt pp of
Malolos government andidmjee ~ levaelution army 0
The Act of Congress of July 1, 1902, or the Philippine Bill, General Aguinaldo. —
was an act temporarily to provide for the administration of civil
government in the Philippine Islands, It did not establish
The legislature held annual sessions for a period of
a new
form of government for the Islands but simply accepted the exist- not more than 90 days. The Civil Governor was empowered to call
ing government as organized by the President through his execu- it in special session at any time for general legislation or for action
tive orders and the Instructions of April 7, 1900. The Philippine on such specific subjects as he might designate. No special session
Bill, however, provided for the calling of a popular assembly, to be could continue longer than 30 days exclusive of Sundays.
designated as the Philippine Assembly, after complete peace should The Assembly was the judge of the elections, returns, and
RR
have been established in the Islands and two years should have qualification of its members. A majority constituted a quorum to do
elapsed from the competition and publication of a census, in case business, but a smaller number could adjourn from day to day and
y Vib
such condition of general peace with recognition of the authority of be authorized to compel the attendance of absent members. It had
the United States should continue in the Christian provinces. the power to choose its Speaker and other officers and to fix their
salaries as well as those of its members; to determine the rules of
After the Philippine Commission certified on September 18,
its proceedings; to punish its members for disorderly behavior; and
1902 to the U.S. President that the insurrection in the Philippines
with the concurrence of two-thirds, to expel a member. It was re-
— 2p
had ceased and the census was competed on March 28, 1905, the
quired to keep a journal of its proceedings and to publish the same,
elections for seats in the Philippine Assembly were held on July 30,
and to enter on the journal the yeas and nays of members on any
1907.
question, upon the demand of one-fifth of the members present.
r ie
The Philippine Assembly was convened on October 16, 1907,

There shall be chosen by the Legislature two Resident Com-
which together with the Philippine Commission, formed the Philip-
missioners to the U.S. who shall be entitled to an official recogni-
pine Legislature invested with the authority to legislate for all
ag Lb heoueppg
tion as such by all departments in the U.S.

parts of the Philippines outside of the non-Christian provinces.
Over those inhabited by them, the Commission was the sole legis- The civil governor, vice-governor, members of the Philippine
lative body. A large portion of the Philippine Bill, however, was Commission and heads of Executive Departments were appointed
devoted to the regulation and control of public lands, mining, for- by the President with the consent of the Senate of the United
ests, commerce, franchises, and municipal bonds. The Philippines States.
had been completely under the control of Congress since the pas- The judicial power was vested in the Supreme Court, in the
sage of this Act.
courts of first instance, and in the municipal courts. The Chief
The Philippine Bill likewise extended to the Islands the guar- Justice and associate justices of the Supreme Court were appointed
antees of the Bill of Rights of the U.S. Constitution (see Sec. 5). by the President of the United States by and with the advice and
consent.of the Senate. The First Chief Justice was Cayetano S.
Until 1907, legislative power was vested in the Philippine Arellano. The judges of the Courts of First Instance were-appointed
Commission, the members of which continued to be appointed by by the Civil Governor, by and with the advice and consent of the
the President of the United States. From 1907, it was vested in a Philippine Commission. They enjoyed no security of tenure because
bicameral legislature consisting of the Commission and the Philip- they can be removed at the discretion of the Civil Governor.
pine Assembly. The Assembly was composed of 81 members elected
by the Filipino people for a term of two years. The Supreme Court of the United States had jurisdiction to
review, reverse, modify, or affirm the final judgments and decrees
of the Supreme Court of the Philippines in all actions, cases, causes, is that an Act of the Philippine Legislature which has not been
and proceedings in which the Constitution or any statute, treaty, expressly disapproved by Congress is valid, unless the subject mat-
title, right, or privilege of the United States was involved; or in ter has been covered by Congressional legislation, or its enactment
cases in which the value in controversy was more than $25,000; or forbidden by some provision of the Organic law. The legislative
in cases in which the title or possession of real estate exceeding power of the Philippine Government is granted in general terms
$25,000 was involved or brought in question. subject to specific limitations (Gasper v. Molina, 5 Phil. 197 [1905]:
U.S. v. Bull, 15 Phil 7 [1910]; In re: Guarifia, 24 Phil. 37 [1913]:
Although American political laws are necessarily extended to US. v, Limsiongco, 41 Phil. 94 [1920]).
American territory, the Constitution of the United States does not
apply in its entirety to an unincorporated territory ex propio vigore. The legislature was bicameral. The state was composed of 24
Its extension to such territory can only take place by an express act members representing 12 senatorial districts. With the exception of
Dirty
of Congress. In the case of the Philippines, Congress not only re- two who were appointed by the Governor-General to represent the
frained from taking that step but also expressly announced that non-Christian tribes, they were all elected by the people for a term
of six years. With the exception of nine who were appointed
vee op er fo
the Constitution and laws of the United States are not in force in by the
the Islands. This action was accomplished by providing in section 1 Governor-General to represent the non-Christian tribes, the other
of July 1, 1902, that section 1891 of the 81 members of the House of Representatives were elected by the
of the Act of Congress
people for a term of three years.
Revised Statutes of 1898 shall not apply to the Philippines.
The Philippine Legislature was inaugurated on October 16,
Section 1891 reads as follows: “The Constitution and laws of
1916 with Manuel L. Quezon as Senate President and Sergio
the United States, which are not locally inapplicable, shall have
the same force and effect within all the organized territories, and
Osmefia as Speaker of the House.
- wi
in every territory hereafter organized, as elsewhere within the All its acts affecting immigration, currency, coinage, or tariff,
United States.” as well as those amendatory to the tariff of the Philippines and
those with reference to lands of the public domain, timber and
A
BY e. The Philippine Autonomy Act of 1916 mining required the approval of the President of the United States
aayytVlwt
before they became laws.

The Philippine Autonomy or Jones Law passed by Congress
wv
on August 29, 1916, superseded the Spooner Amendment of 1901 Each chamber was the sole judge of the elections, returns
—_
and the Philippine Bill of 1902 as the chief organic act of the and qualifications of its members. It was authorized to determing
Philippines. It remained as such until November 15, 1935, when the rules of its proceedings, punish its members for disorderly
the Commonwealth of the Philippines was inaugurated. This act behavior, and with the concurrence of two-thirds, expel an elective
xo
more nearly resembled a constitution in form and content than any member; to elect its officers; and to determine the annual compen-
of the former organic laws of the Philippines. It contained a pream- sation of its members. A majority of the members constituted a
ble; a bill of rights; provisions defining the organization and powers quorum to do business, but a smaller number could meet and ad-
>
>
of the several departments of the government, and their limita- ae from day to day and compel the attendance of absent mem-
tions; provisions defining the electorate; and miscellaneous provi- ers.
sions on finance, franchises, and salaries of important officials. {t held annual regular sessions which could not continue longer
“Y
The Jones law grants general legislative power except as oth- than 100 days. It could be called in special session at any time by
erwise provided therein to the Philippine Legislature. Even before the Governor-General for general legislation or for action on such
its approval, it was held that the Philippine Legislature has practi- specific subjects as he might designate, said special session not to
cally the same powers in the Philippine Islands within the sphere continue longer than 30 days.
in which it may operate as the Congress of the United States The senators and representatives were in all cases except trea-
(Chanco v. Imperial, 34 Phil. 329 [1916]). The rule judicially stated son, felony and breach of the peace, privileged from arrest during
their attendance at the sessions of their respective houses and
SLY
ya fe
through the Secretaries of Departments, or other proper agency,
when going to and returning from the same, for any speech or
hens
according to law.” ( ph
debate in either house, they could not be questioned in any other
OP
place. The Philippine Autonomy Act of 1916 is generally considered
to have provided for a real separation of powers. It allocates the
vaprech
The law also provided for the selection of two Resident Com- executive, legislative and judicial powers among separate and inde-
missioners to the United States by the Legislature for a term of the
yy
pendent branches of government.
three years.
The Governor-General had a veto power over the enactments
Nmap
The supreme executive power was vested in the Governor- of the legislature; the legislature could withhold consent to execu-
UA General. He was appointed by the President by and with the advice
+on
tive appointments and create or abolish executive departments;
and consent of the Senate of the United States. He held his office and the judiciary had the power of judicial review.
on
at the pleasure of the President and until his successor was chosen
run
rAYO?
eh
~and qualified. In practice however, the American Governor-General was the

supreme authority. If his veto is overruled by the legislature and
He had the power to appoint, by and with the advice and
2?
rz%
he still would not accept it, he can transmit the bill to the Presi-
consent of the Philippine Senate: (1) such officers as were then
7 ofLF}
>
dent of the United States who may approve or disapprove it. Also
ypsye wig VAM = Sap ar toe 89 Vr
appointed by the Governor-General; (2) the heads of executive de-

wy
¢
fy i
unlike the provisions of the Philippine Bill of 1902, in suspadine

partments and judges of the courts of first instance, and (3) those the privilege of the writ of habeas corpus or proclaiming martial
wey
whom he might thereafter be authorized by law to appoint.

eg
law, he no longer needed the concurrence of the legislature.

He had general supervision and control of all the departments
The Philippine Autonomy Law also provided for the appoint-
ph7mMae
and bureaus of the government of the Philippines. He was Com- ment ofa Vice-Governor by the U.S. President and who shall be the
Atopy Wed?
mander-in-Chief of all locally created armed forces and Militia. He Head_of the Department of Public Instruction.
was vested with the exclusive power to grant pardons and reprieves o—\
and to remit fines and forfeitures. He had the power to veto any Asjunder the Philippine Bill of 1902, the judicial power was
legislation enacted by the legislature. The Governor-General was vestedin the Supreme Court, the courts of first instance, and jus-
responsible for the faithful execution of the laws of the Philippines tice of the peace and municipal courts; the chief justice and associ-
and of the United States operative in the Philippines. Whenever it ate justices were appointed by the President of the United States
became necessary, he might call upon the commanders of the mili- by and with the advice and consent of the Senate; the judges of the
tary and naval forces of the United States in the Islands, or sum- courts of first instance were appointed by the Governor-General, by
mon the posse comitatus, or call out the Militia or other locally and with the advice and consent of the Philippine Senate. The
created armed forces, to prevent or suppress lawless violence, inva- \% justices of the peace were appointed by the Governor-General with
invasion ors | the advice and consent of the Senate. The Supreme Court of the
imminent danger thereof, when the public safety requires it, he} United States had the same power of review as in the Philippine
cor- |
had the power to suspend the privilege of the writ of habeas Bill of 1902.
pus, or place the country or any part thereof under martial law. With the promise of independence under the Act, the efforts of
The authority of the Governor-General is made secure by the Filipino leaders were directed toward convincing the U.S. govern-
important proviso “that all executive functions of Government must ment that the government established in the Islands was in full
be directly under the Governor-General or within one of the execu- command of the country and that the Filipinos could now run it
tive departments under the supervision and control of the Gover- themselves.
nor-General.” By the Administrative Code, “the Governor-General,
Philippine missions were sent to Washington, D.C. to work for
as Chief Executive of the Islands, is charged with the executive a law granting Philippine Independence. In 1931, Senator Sergio
control of the Philippine Government, to be exercised in person or Osmefia, and Speaker Manuel Roxas headed a mission which se-
cured the Hare-Hawes Cutting Act promising Philippine Independ- United States had direct participation in many of its governmental
ence after ten years. But the Philippine Legislature, under the affairs. The Supreme Court of the United States continued to exer-
leadership of Manuel L. Quezon, rejected the Act, in a move that cise final jurisdiction over important cases decided by the courts of
was more politically motivated rather than the merits of the Act, the Commonwealth. A sort of general supervisor over Philippine
After its rejection, Quezon headed another mission to Washington, Affairs was placed by the United States in the Commonwealth, his
D.C. in 1933 which secured the Tydings-McDuffie Law. title being that of High Commissioner.In Washington D.C., the
Philippines was represented by a Resident Commissioner who has
given a seat in the House of Representatives of the United States
5. THE PHILIPPINE COMMONWEALTH PERIOD ;
but without the right to vote. KK yuA» ily K
a. The Tydings-McDuffie Law of 1934
b. The 1935 Philippine Constitution
The Philippine Independence Act, otherwise known as the
The Constitutional Convention was inaugurated on July 30,
Tydings-McDuffie Law, was signed by U.S. President Franklin D.
1934. Of the 202 delegates, 142 were lawyers. Wenceslao Vinzon of
Roosevelt on March 24, 1934, and unanimously approved on May
Camarines Norte was the youngest at barely 25 years old. Presi-
1, 1934, by the Philippine Legislature on behalf of the Filipino
dent Manuel L. Quezon, then President of the Philippine Senate,
people. It provided for the relinquishment of American sovereignty
opened the Convention. Jose P. Laurel, delegate for Batangas, was
over the Philippines upon the expiration of a transition period of
thereupon nominated and proclaimed the provisional chairman.
ten years during which the archipelago was to be under the regime
After expressing his deep appreciation for the honor of his election,
of an all-Filipino Commonwealth government established in ac-
Delegate Laurel opened the Convention for the nomination and
cordance with a constitution which the Filipinos were authorized to
election of the permanent presiding officer. Claro M. Recto, also of
frame through a convention of delegates.
Batangas, was nominated and elected President.
This new organic law repeals all previous organic laws for the
Philippines effective on the inauguration of the Commonwealth After considering the reports submitted to it by the other
government. In its Section 15, it provides, among other things, the
thirty-nine committees on the Constitution, the Sponsorship Com-
following: mittee of eighty-seven members formulated and submitted to the
Convention a draft of the Constitution. The Sponsorship Commit-
4
“The government of the Commonwealth of the Philippine tee being too large a body to act expeditiously, on October 9, 1934,
Islands shall be deemed successor to the present government it named a Sub-Committee of seven, to prepare a draft of the Con-
of the Philippine Islands and of all the rights and obligations stitution. The members of this Sub-Committee were delegates
thereof. Except as otherwise provided in this Act, all laws or Filemon Sotto, Manuel Roxas, V. Singson Encarnacion, Manuel C.
parts of laws relating to the present government of the Philip- Briones, Norberto Romualdez, Conrado Benitez, and Miguel
pine Islands and its administration are hereby repealed as of Cuaderno. The Sub-Committee of seven submitted to the Conven-
date of the inauguration of the government of the Common- tion a draft of the Constitution on October 20, 1934. The Conven-
wealth of the Philippine Islands.” tion approved the draft on January 31, 1935, with amendments.
The exception indicated in this section refers, among other The draft of the Constitution as revised and recasted by the
matters, to the jurisdiction of the Supreme Court of the United Committee on Style was finally approved by the Convention at
States and the limitations on the bonded indebtedness of the Phil- about 6:15 p.m. on February 8, 1935, with 177 delegates voting in
ippine government. These subjects are still governed by the provi- favor, one dissenting, and 22 absent. The convention took six months
sions of the Jones Law until Congress provides otherwise. to draft and approve the Constitution.
The United States retained direct supervision and control over The proposed Constitution, together with the Ordinance ap-
the foreign affairs of the Commonwealth. The President of the pended thereto, was submitted to President Franklin D. Roosevelt
on March 18, 1935. Five days later, President Roosevelt made the The 1935 Constitution of the Philippines includes more than
following certification to the Governor-General of the Philippines: the substantive contents above enumerated. Opening with a pre-
amble, it is made up of seventeen articles and ends with an ordi-
“The Tydings-McDuffie Independence Law provided that
nance appended thereto. In chronological order, the various articles
after the President of the United States had certified that the
are: Article I..-The National Territory; Article I. Declaration of
Constitution, with the Ordinance appended thereto, conformed
Principles; Article II. Bill of Rights; Article IV. Citizenship; Article
with the provisions of said law, it should be submitted to the
V. Suffrage; Article VI.Legislative Department; Article VII. Execu-
qualified voters of the Philippines for ratification or rejection
tive Department; Article VIII. Judicial Department; Article IX. Im-
at an election to be held within four months after the date of
peachment; Article X, General Auditing Office; Article XI. Civil
such certification, on a date to be fixed by the Philippine
Service; Article XII: Conservation and Utilization of Natural Re-
Legislature.”
sources; Article XIII. General Provisions; Article XIV. Amendments;
The plebiscite was held on May 14, 1935, and the Filipinos, by Article XV. Transitory Provisions; Article XVI. Special Provisions
an overwhelming majority, (1,213,046 votes in favor and only 44,963 Effective Upon the Proclamation of the Independence of the Philip-
against) voted for ratification, thus manifesting their desire for pines; and Article XVII. The Commonwealth and the Republic.
independence. The election returns were transmitted to and can- By the New Constitution of the Philippines ratified by the
vassed by the Philippine Legislature in special session. The result Filipino people in May 14, 1935, the"Philippine» Legislature was
of the election was certified by the Governor-General. The certifica- abolished and superseded by the "National Assembly. This was a
tion included a statement of the votes cast, and a copy of the
unicameral body. It was the legislative authority of the Philippine
Constitution of the Philippines with the Ordinance appended thereto.
government from November 15, 1935 until the last days of 1941.
The 1935 Constitution provides for the establishment of a
The constructive innovations, besides the establishment of a
government that, in the language of the preamble, shall embody
unicameral assembly and the provisions for a strong executive and
the ideals of the Filipino people, conserve and develop the patri-
an independent judiciary are: (1) the éréation of a non-partisan
mony of the nation, promote the general welfare, and secure to
electoral Commission to decide all contests relating to the elec-
them and their posterity the blessings of independence under a
tions, returns and qualifications of the members of the National
regime of justice, liberty, and democracy. The constitution also pro- Assembly; (2) the establishment of a permanent and independent
vides for a republican form of government, follows the principle of Civil Service; and (3) the establishment of a General Auditing Of-
the separation of powers, and contains a bill of rights. It guaran- fice under the direction and control of an independent Aluditor-
tees freedom of speech, freedom of the press, and freedom of reli-
gion. In most of its main features, it is modeled after the Constitu- General.
tion of the United States which was characterized by William Pitt, Among the precepts embodying important liberal principles
that eminent English statesman, as “the wonder and admiration of and socialistic tendencies may be mentioned: (1) the outlawing of
all future generations and the model for all future constitutions,” war as an instrument of national policy and the adoption of the
and by Gladstone, another English statesman of renown, as “the generally accepted principles of international law as part of the law
most wonderful work ever struck off at a given time by the brain of the nation; (2) the training of the youth for civic efficiency and in
and purpose of men.” the fundamental duties of citizenship; (3) the right of the state to
J A good written constitution has the following substantive con- intervene in private affairs in the interest of publie peace and
tents: (1) provisions relating to the ofganization, form, and func- social justice to insure the well-being and economic security of all
tions of the government, including the relations of said government the people; (4) the nationalization of the natural resources and
with individuals; (2) provisions enume rating theleivil/and political public utilities; (5) limitations upon private ownership of agricul-
rights of the people, designated as the bill of rights; and (8)’provi- tural lands; (6) the encouragement of small landholdings by giving
sions relative to the manner of adoptin g amendments to the consti- the National Assembly authority, upon payment of just compensa-
tution. tion, to expropriate lands to be subdivided into small lots and con-
160 INTRODUCTION TO LAW PART III — THE PHILIPPINE LEGAL SYSTEM
161
veyed at cost to individuals; (7) the right of the state, in the inter- dent of the United States on November 15, 1935,
on which date the
est of national welfare and defense, to establish and operate indus- Government of the Commonwealth was inaugurated.
tries and means of transportation and communication and upon
The reins of government with the exception of its currenc
payment of just compensation, to transfer to public ownership utili- y
and foreign relations were now completely in the hands
ties and other private enterprises to be operated by the govern- of the
Filipinos. The government just launched, Quezon declared
ment; (8) the duty of the state to afford the necessary protection to in his
inaugural address, was only “a means
labor, especially to working women and minors, and to regulate the to an end. It is an instru-
relations between landowner and tenant, and between labor and mentality placed in our hands to prepare ourselves fully
for the
in industry and in agriculture. Finally, to gain economic responsibilities of complete independence.” NV ily
capital
and social fortitude, the Constitution authorizes the delegation of
legislative authority to the President in connection with the fixing c. The 1935 Philippine Constitution (With Amend-
of tariff rates, import or export quotas, and tonnage and wharfage ments)
dues, and the promulgation of rules and regulations to carry out a In 1940, the Constitution was amended. Firstly, the National
declared national policy in case of emergency. Assembly was abolished and in its placetas@ongréss of the Philip-
pines was created to begin operating after the elections in Novem-
x The outstanding features of the 1935 Constitution of the Phil-
ippines, namely, a republican government, with a bill of rights, an ber 1941. This body is a bicameral legislature, consisting ofa Sen-
assertive National Assembly, a strong Executive and an independ- ate and a House of Representatives. Secondly, the term of office of
ent Judiciary, and the inclusion of precepts embodying certain lib- the President and Vice-President was decreased from six
to four
eral principles and socialistic tendencies, form the groundwork upon years with reelection for the President provided to total
number of
which the Filipino nation, during the ten years transition period, years he served in office did not exceed eight consecutive years
will undertake to build the structure of a free and independent Thirdly, an independent Commission on Elections was
created. .
Philippines. These amendments were introduced under Resolution No.
38
Section 4 of the Philippine Independence Act contains, among approved on September 15, 1939, as amended by Resolu
tion No.
others, the following provision: 73. They were adopted on April 11, 1940 by the Second
National
Assembly. On June 18, 1940, these amendments were ratifie
d by
“***When the election of the officers provided for under tne eer and the U.S. President approved them on Decem
ber 2,
the constitution has been held and the results determined,
the Governor-General of the Philippine islands shall certify
In 1947, the constitution was again amended. The amend-
the results of the election of the President of the United States,
ment allowed citizens of the United States and busines
who shall thereupon issue a proclamation announcing the re- s enter-
prises owned or controlled by such citizens’ equal rights
sults of the election, and upon the issuance of such proclama- in the
disposition, exploitation, development and utilization of natural re-
tion by the President, the existing Philippine Government shall
sources and the operation of public utilities in the country. This
terminate and the new government shall enter upon its rights, so
called thesParity Rights” amendment was introduced
privileges, powers, and duties, as provided under the constitu- by a Joint
Resolution adopted by the First Congress on September
tion.***” 18 1946
and approved by the people on March 11, 1947.
In the elections held in September 1935, Manuel L. Quezon
won effortlessly over his aging opponents, Gen. Emilio Aguinaldo d. The Government in Exile
and Bishop Gregorio Aglipay; Sergio Osmefia won the vice-presi- On December 7,7, 1941 the Ja panese launched a surprisi e at-
dency. tack on the US. military base at Pearl Harbor, Hawaii. The anxi-
The proclamation announcing the results of the election of the ety and confusion caused in the Philippines by the news of Pearl
officers provided for under the Constitution was issued by the Presi- Harbor’s bombardment had hardly died down when flocks of Japa-
from there to Del Monte to wait for transportation to take them to

nese planes roared over the islands to drop their deadly bomb Australia. On March 26, a flight of bombers took off for Australia
cargo. with Quezon and a party of seventeen.
Davao was bombed twice on December 8, 1941. Military in- Quezon’s term would have expired in 1943 (a total of eight
stallations in Camp John Hay in Baguio were also attacked. Al- years from 1935 under the 1940 amendment) but it was extended
most simultaneously, Iba, Tarlac, and Tuguegarao were bombarded. by the U.S. Congress. Quezon died in Washington D.C. on August
But Clark Field in Central Luzon and Nichols Field near Manila 1, 1944, while the war was still going on and Vice-President Osmefa
were to suffer the most damage. succeeded to the Presidency.
In the meantime, Japanese troops had landed in Batanes on
December 8 and captured the Basco Airport without meeting so 6. THE SECOND PHILIPPINE REPUBLIC (JAPANESE
much as token resistance. The same day, the Japanese landed in
Davao. Japanese ground troops later moved into Vigan, Aparri, and
PERIOD)
Laoag, capturing the airfields there. With the surrender of these On January 2, 1942, the Imperial Japanese Forces occupied
three areas, the Japanese gained complete control over Northern the City of Manila, and on the next day their Commander-in-Chief
od
Luzon. proclaimed “the Military Administration under martial law over

the districts occupied by the Army.” In said proclamation, it was
On the 2nd and 3rd of January 1942, truckloads of soldiers
also provided that “so far as the Military Administration permits,
entered Manila through Rizal Avenue and Blumentritt Street in
all the laws now in force in the Commonwealth, as well as execu-
the north.
tive and judicial institutions, shall continue to be effective for the
After their successful occupation of Manila, Japanese troops time being as in the past,” and “all public officials shall remain in
proceeded to Olongapo. Later, they seized the American fort in their present posts and carry on faithfully their duties as before.
Subic Bay and continued their march towards Bataan. The USAFFE A civil government or central administrative organization un-
in Bataan put up a heroic resistance. But the Filipino troops were der the name of “Philippine Executive Commission” was organized
inexperienced — many were ill, and all were tired and starving. by Order No. 1 issued on January 238, 1942, by the Commander-in-
They had no air cover, and after three months of unrelenting land Chief of the Japanese forces in the Philippines, and Jorge B. Vargas,
and air attack by the tough Japanese troops, Bataan fell on April 9, who was appointed Chairman thereof, was instructed to proceed to
1942. Less than a month later, on May 6, 1942, the weary USAFFE the immediate coordination of the existing central administrative
troops, which had sought refuge in the fortress of Corregidor, sur-
organs and of judicial courts, based upon what had existed thereto-
rendered to the Japanese.
fore, with the approval of the said Commander-in-Chief, who was
MacArthur had taken the Philippine government with him to to exercise jurisdiction over judicial courts.
Corregidor on December 24, 1941, Quezon and Osmejia, whose first
terms expired on December 30, 1941, were sworn in for their sec- ganiealr ed 1B 2s,.28 beadaet fhe, central gadministeativeyos0
ond terms as President and Vice-President on the same day. and February 5, 1942 respectively, in which the Supreme Court,
On March 12, 1942, General MacArthur with his family and Court of Appeals, Courts of First Instance, and the justices of the
staff arrived at Cagayan de Oro by PT Boat from Corregidor. They peace and municipal courts under the Commonwealth were contin-
were put in quarters at the Del Monte compound in Bukidnon ued with the same jurisdiction, in conformity with the instructions
pending the arrival of bombers to transport them to Australia. given to the said Chairman by the Commander-in-Chief of the J. apa-
Gen. MacArthur and his party left Mindanao by bomber on March nese Forces in the Philippi i F
20, 1942, concermmg >. the latter’s Order No. 3 of Febru-
18.
a ippine Executive Con? asic principles to be observed by the
On March 20, 1942, President Quezon with a party of seven-
tive and judicial powers... 1 CX€reising legislative, execu-
‘Section 1 of said Order
teen arrived in Misamis; they were taken to Dansalan, Lanao and provided that
“activities of the administrative organs angidicial courts in the pointments are by the Constitution vested in the Chief Executive
Philippines shal] be based upon the isting statutes, orders, ordi- but also, with the advice of his Cabinet, ambassadors, diplomatic
nances and customs.” ministers and consuls, these diplomatic representatives not being
The 1943 Constitution of the Republic of the Philippines dur- provided in past fundamental laws.
ing the Japanese Occupation was drafted by the Preparatory Com- 4. The Constitution also provides for a Council of State to
mission for Philippine Independence headed by Jose P. Laurel. It advise the President on matters of national policy, the members of
was finally reported by the PCPI and ratified unanimously on Sep- which, not to exceed twenty in number, are to be selected from
tember 7, 1943, by the 108 Kalibapi delegates to the special gen- among citizens who may have rendered distinguished service to
eral assembly called for the purpose. the Nation.
In view of the prevailing national emergency, certain features 5. Under the Commonwealth Constitution, the Congress
which in normal times would have been readily adopted were not shall, with the concurrence of two-thirds of all the members of each
embodied in the Constitution, such as: 1) the article on universal House, have the sole power to declare war; but under the 1943
suffrage or the holding of popular elections; (2) certain provisions Constitution, the President, with the concurrence of two-thirds of
on bill of rights which were found in the Commonwealth Constitu- all the members of the National Assembly, shall have the power to
tion, such as (a) the prohibition against a bill of attainder, and (b) declare war, make peace, and with the concurrence of the majority
the provisions regarding criminal procedure; (3) certain provisions of all its members, conclude treaties.
of the article on citizenship; and (4) those creating the Commission
on Appointments and the Commission 6. When the National Assembly is not in session, the Presi-
on Elections.
dent, may, in cases of urgent necessity, promulgate rules and ordi-
The innovations of the 1943 Constitution as compared to past nances which shall have the force and effect of law until disap-
organic laws are: proved by the National Assembly at its next regular session.
1. The 1943 Constitution is transitory in character and is
meant only for the duration of the war. After the emergency, the b. As to the Legislative a dnicameral legisla-
prov
be
Filipino people will have the opportunity, through their duly au- 7. The 1943 C tional Assembly¥des for by the Speaker, to
thorized representatives, to frame another Constitution. ture known as the Na ncial governors headed mayors as members
composed of the provi and city
2. While both the Commonwealth Constitution and the 1943
fundamental law implore the aid of Divine Providence, in the pre- ex-officio and of the delegates to be elected every three years, one
from each every province and chartered city.
amble, the latter not only embodies the people’s ideals and aspira-
tions mentioned in the former but goes one step further by pro-
claiming our independence and making patent the desire of the the independence of the judi-
“8 Ante the Judiciary mandates ae
Filipinos to “lead a free national existence” and “to contribute to become the repository of
ciary. The Supreme Court has ee _
the creation of a world order based on peace, liberty and moral onal Assembly is no uo
malting power, and the Nati l s reg:
ya g the rurule
ar ‘e
justice.”
“
be ring oror supplementin

~~
;
repe
the power of ‘rep aling, alte
eali
7
ms
n to the
:
procedure, and the

and admi ssio
a) As to the Executive: ing esding practice
3. Under the Constitution, broad and centralized powers practice of law in the Philippines. The age requirement for the
are vested in the President, including full authority to exercise the retirement of members of the Supreme Court has been abolished. A
coercive powers of the state for its preservation. The President’s unanimous vote of all the members of the Supreme Court is now
power of appointment has been enhanced, for he shall appoint not necessary before a law, executive order, ordinance, or regulation
only Ministers and Vice Ministers and other officials whose ap- may be declared unconstitutional.
166 INTRODUCTION TO LAW PART UI — THE PHILIPPINE LEGAL SYSTEM 167
d. As to Impeachment: “This constitution has been prepared by Filipinos for Filipi-

nos; and I know it is not the intention or the purpose of Japan to
9. The power to impeach the President and the Justices of
prepare a Constitution and impose it upon the Filipino people; that
the Supreme Court is retained as a constitutional safeguard, the
if Japan is sincere in her purpose, as I believe she is, in granting
National Assembly being charged with the sole power to impeach, the Filipinos true and real independence, Japan should permit the
while in the Supreme Court is lodged the power to try impeach- Filipinos to adopt a constitution that is responsive to their needs,
ments. to their traditions, to their ideals, to their history, to their idiosyn-
crasies, and to their aspirations.”
e. As to Bill of Rights, Suffrage and General Provisions:
. have told you my reason for voting for
10. One transcendental feature of the Constitution is the ‘Be that n: may,it ~ 3
as itfirst, means " hich 8 can run a govern-
this Constitutio : y
greater importance it attached to the duties and obligations of a ;. [tis ortunity that we must seize.
citizen than to his rights and privileges. Especially in times of har is eeethat ‘for ne ta find out what
Sesecond
The it is
ourselve :
PP Soe
national emergency, a citizen should only be entitled to the enjoy- Japan is really going do as regards the independence of the
ment of relative and not absolute rights. Thus, under the new Philippines once the Republic of the Philippines is established. And
Constitution, “it is the duty of every citizen to render personal the Constitution is an instrumentality for setting up that inde-
military and civil service as may be required by law, to pay taxes pendence. And the third reason is: if we should find the independ-
and public charges, and to engage in a useful calling, occupation or ence so established not only complete and absolute but also real
profession.” and substantial; if we should find that our people are happy under
thi ra -
11. The 1943 Constitution safeguards individual rights. Life, is Constitution and under gur RYDSRVeTAment; if we should find
liberty or property may not be taken without due process of law. Japan's intentions of this ConstitutionS S°@Ume, sincere and no-
The obligation of contracts shall not be impaired. Freedom of reli- ble, then approval bli of the Phili ine Would have given us, the
gion, of speech and of the press, and the right of the people peace- Filipinos, our Repu’ © & “© ppm.”
ably to assemble and petition the government for redress of griev- The delegates to the :
tember 20, 1943. The firs National Assembly were elected on Sep-
ances are recognized and respected, subject to such limitations as .t session of the First National Assembly
may be imposed by law in the interest of peace, morals, health, was held on September ;
Speaker of the Assembly. 25, 1943. Benigno Aquino was elected
safety or public security. Gane : “Jose P. Laurel was elected President of
12. The adoption of Tagalog as the National Language and the New Republic.
the provision for free elementary instruction, in lieu of free pri- On October 14, 1943, the so-called Republic of the Philippines
mary instruction in the past, and the emphasis now being given to was inaugurated, but no substantial change was effected thereby
national education, personal and collective discipline, civic conscious- in the organization and jurisdiction of the different courts that
ness and vocational skill are other important innovations of the functioned during the Philippine Executive Commission, and in the
Constitution. laws they administered and enforced.
In a speech delivered by Jose P. Laurel on September 7, 1943, On October 23, 1944, a few days after the historic landing in
he said: “I will not say that this Constitution is an instrument that Leyte, General Douglas MacArthur issued a proclamation to the
can be placed side by side with the best written constitutions of the People of the Philippines which declared:
world,... I shall not point to the Constitution as a constitution that
“1. That the Government of the Commonwealth of the Phil-
can stand the test of logic, of symmetry, of logical arrangement... ippines is, subject to the supreme authority of the Government of
But I will say that it is the best constitution that we could prepare the United States, the sole and only government having legal and
or fashion under the circumstances and realities that confront us valid jurisdiction over the people in areas of the Philippines free of
during these days.” enemy occupation and control;
“2 That the laws now existing on the statute books of the b. The 1947 Amendment (Parity Rights)
Commonwealth of the Philippines and the regulations promulgated The Philippine Trade Act of 1946, or the Bell Trade Act, which
pursuant thereto are in full force and effect and legally binding was passed by the U.S. Congress on April 30, 1946 proposed to
upon the people in areas of the Philippines, free of enemy occupa-
allow the entry of Philippine articles into the United States free of
tion and control; and ordinary customs duties until July 3, 1954 and thereafter subject
“3 That all laws, regulations and processes of any other to progressively increasing duties until July 3, 1974 on condition,
government in the Philippines other than that of the said Com- among others, that similar privileges be extended to United States
monwealth are null and void and without legal effect in areas of articles. It likewise provided that the disposition, exploitation, de-
the Philippines free of enemy occupation and control.” velopment, and utilization of all natural resources of the Philip-
pines, and the operation of.public utilities, shall, if open to any
On February 3, 1945, the City of Manila was partially liber- person, be open to citizens of the United States and to all forms of
ated and on February 27, 1945, General MacArthur, on behalf of business enterprise owned or controlled, directly or indirectly, by
the Government of the United States, solemnly declared “the full the United States citizens. It also required the President of the
powers and responsibilities under the Constitution restored to the United States and the President of the Philippines to enter into an
Commonwealth whose seat is here reestablished as provided by executive agreement embodying the provisions of the Act.
law.”
On July 3, 1946, the Philippine Congress passed C.A. No. 733
accepting the proposed executive agreement and authorizing the
7. THE THIRD PHILIPPINE REPUBLIC President to take steps to implement it. The following day, where
Philippine Independence was proclaimed, U.S. Commissioner Pal
a. Civilian Authority Under President Osmena Re-
McNutt and President Roxas signed the agreement.
stored
Pursuant to the executive agreement, R.A. No. 73 was en-
On February 27, 1945, General MacArthur turned over the
acted calling a plebiscite on March 11, 1947 to approve an amend-
Malacanang Palace to President Osmeiia, who started to gradually ment to the 1935 Constitution opening the U.S. citizens and busi-
restore civilian authority and normalcy over the entire country. ness enterprises the right to the disposition, exploitation, develop-
Meanwhile, the US Congress had decided that Philippine elec- ment and utilization of the country’s natural resources and the
tions should be held not later than April 20, 1946 and that the new operation of public utilities on terms of equality with Philippine
president should take office not later than May 28, 1946. citizens. The people ratified the amendment in the form of an ordi-
nance to the 1935 Constitution. Aw
was
On June 9, 1945, the pre-war Congress convened and Roxas
elected Senate President in December 1945, Roxas left the
al)
ce. The 1973 Constitution
Nacionalista Party and organized the Liberal Party setting the
In the early sixties, there was a clamor for the revision of the
stage for the first NP-LP Political fight.
1935 Constitution in view of the doubts expressed as to its ad-
The election for members of Congress, the Presidency and equacy for the solution of grave problems of state, primarily in the
Vice-Presidency were held on April 23, 1946. This election saw the socio-economic sphere.
participation of the Democratic Alliance, a new element in Philip-
The feeling in many quarters was that changes were neces-
pine Politics.
sary to make it more responsive to the needs of the times. Such
In this very hotly contested election, Roxas won by a slim thinking grew stronger with the years. It acquired momentum.
majority of only 203,396 votes over Osmefia while Quirino won by
Republic Act No. 6132 was approved on August 24, 1970, pur-
an even smaller margin of 110,482 votes over Rodriguez, Sr.
suant to the provisions of which the election of non-partisan del-
egates to said Convention was held on November 10, 1970, and the
the setting of guidelines for the conduct of the same, the prescrip-
1971 Constitutional Convention began to perform its functions on
tion of the ballots to be used and the question to be answered by
June 1, 1971 at the Manila Hotel.
the voters, and the appropriation of public funds for the purpose
The Constitutional Convention elected former President Carlos are, by the Constitution, lodged exclusively in Congress and that
P. Garcia as its President on June 11, 1971. Unfortunately, he died there is no proper submission to the people of said proposed Consti-
three days later. His successor was another former President, tution set for January 15, 1973, there being no freedom of speech,
Diosdado Macapagal. Dr. Sotero H. Laurel was elected President press and assembly, and there being no sufficient time to inform
Pro Tempore. The temporary Presiding Officer was the eldest del- the people of the contents thereof.
egate, former speaker Antonio de las Alas of Batangas with former
Senator Juan Liwag of Nueva Ecija as temporary chairman. Two Other substantially identical actions were filed by Pablo C.
outstanding jurists, former Supreme Court Justices Jesus Barrera Sanidad, Gerardo Roxas, Sedfrey Ordofiez, Vidal Tan, Jose W. Diokno
and Jose Ma. Paredes were among the members. and Benigno “Ninoy“ Aquino, ‘and others.
On August 21, 1971, the Liberal Party rally at Plaza Miranda In these cases, the respondents were required to file their
was bombed injuring the party’s senatorial candidates and other answers not later than 12:00 (o’clock) noon of Saturday, December
persons. President Marcos then suspended the privilege of the writ 16, 1972. Said cases were also set for hearing and partly heard on
of habeas corpus. In Lansang v. Garcia, 42 SCRA 448, this suspen- Monday, December 18, 1972, at 9:30 a.m. The hearing was contin-
sion was challenged in the Supreme Court. However, the Court, ued on December 19, 1972. At the conclusion of the hearing, on
while setting aside the government’s political question argument, that date, the parties in all of the aforementioned cases were given
upheld the validity of the suspension. On January 11, 1972, after a short period of time within which to submit their notes on the
the S.C. decision, the President lifted the suspension of the privi- points they desire to stress. Said notes were filed on different dates
lege of the writ of habeas corpus. between December 21, 1972 and January 4, 1973.
On December 17, 1972, the President had issued an order
8. MARTIAL LAW PERIOD temporarily suspending the effects of Proclamation No. 1081, for
While the Convention was in session on September 21, 1972,
the purpose of free and open debate on the proposed Constitution.
the President issued Proclamation No. 1081 placing the entire Phil- On December 23, the President announced the postponement of
ippines under Martial Law. On November 29, 1972, the Convention the plebiscite for the ratification or rejection of the proposed Con-
approved its Proposed Constitution of the Republic of the Philip- stitution. No formal action to this effect was taken until January 7,
pines. The next day, November 30, 1972, the President of the Phil- 1973 when General Order No. 20 was issued, directing that the
ippines issued Presidential Decree No. 73, submitting to the Fili- plebiscite scheduled to be held on January 15, 1973 be postponed
pino people for ratification or rejection the Constitution of the Re- until further notice. Said General Order No. 20, moreover, sus-
public of the Philippines proposed by the 1971 Constitutional Con- pended the cases in the Supreme Court.
vention, and appropriating funds therefor, as well as setting the
In the afternoon of January 12, 1973, some petitioners filed
plebiscite for said ratification or rejection of the proposed Constitu-
an urgent motion, praying that said case be decided as soon as
tion on January 15, 1973.
possible, preferably not later than January 15, 1973. It was alleged
On December 7, 1972, Charito Planas filed a petition with the in said motion, inter alia:
Supreme Court, against the Commission on Elections and others to
“xxx
enjoin said respondents or their agents from implementing Presi-
dential Decree No. 73, in any manner, until further orders of the 6. That the President subsequently announced the issuance
court, upon the grounds, inter alia, that said Presidential Decree of Presidential Decree No. 86 organizing the so-called Citizens As-
has no force and effect as law because the calling of such plebiscite, semblies, to be consulted on certain public questions;
172 INTRODUCTION TO LAW PART IIT — THE PHILIPPINE LEGAL SYSTEM 173
7. That thereafter, it was later announced that “the Assem- noon, above petitioners filed a supplemental motion for the issu-
blies will be asked if they favor or oppose — ance of a restaining order and inclusion of additional respondents.
“[1] The New Society; On the same date — January 15, 1973 — the court passed a
“[2] Reforms instituted under Martial Law; resolution requiring the respondents to file an answer to the said
motion not later than 4 p.m., Tuesday, January 16, 1973, and set-
“[3] The holding of a plebiscite on the proposed Consti- ting the motion for hearing in January 17, 1973, at 9:30 a.m. While
tution and when, temporarily suspending the effects of Proc- the case was being heard, on the date last mentioned, at noontime,
lamation No. 1081 for purposes of free and open debate on the the Secretary of Justice called on Chief Justice Roberto Concepcion
proposed Constitution. and said that, upon instructions of the President, he, the Secretary
“[4] The opening of the regular session slated on Janu- of Justice was delivering to him a copy of Proclamation No. 1102
ary 22 in accordance with the existing Constitution despite which had just been signed by the President. Thereupon, the Chief
Martial Justice returned to the Session Hall and announced to the Court,
Law.”
the parties and the public there present that the President had,
SAGL
XXX according to information conveyed by the Secretary of Justice, signed

said Proclamation No. 1102, earlier that morning. Thereupon, the
9. That the voting by the so-called Citizens Assemblies was
writer read Proclamation No. 1102 which was of the following tenor:
announced to take place during the period from January 10 to
January 15, 1973; “NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in me
XXX
vested by the Constitution, do hereby certify and proclaim
10. That on January 11, 1978, it was reported that six ques- that the Constitution proposed by the nineteen hundred and
tions would be submitted to the so-called Citizens Assemblies: seventy-one (1971) Constitutional Convention has been rati-
fied by an overwhelming majority of all the votes cast by the
“[1] Do you approve of the Citizens Assemblies as the
members of all the barangays (Citizens Assemblies) through-
basis of popular government to decide issues of national inter-
out the Philippines, and has thereby come into effect.
N/
ests?
Because of the Proclamation, the court dismissed the several
“{2] Do you approve of the new Constitution?
petitions questioning the validity of the Decree calling a plebiscite,
“[3] Do you want a plebiscite to be called to ratify the on the ground of mootness (Planas v. COMELEC, 49 SCRA 105).
new Constitution?
Three days thereafter, Josue Javellana filed with the Supreme
“[4] Do you want the elections to be held in November Court a petition against the Executive Secretary and the Secretar-
1973 in accordance with the provisions of the 1935 Constitu- ies of National Defense, Justice, and Finance to restrain these
tion? officials from implementing any of the provisions of what he termed
“the proposed constitution” not found in the 1935 charter. Petitions
“[5] If the elections would not be held, when do you of a similar character were filed on January 23, 1973, on February
want the next elections to be called? 3, 1973, and on February 12, 1973. All of the above cases were then
“{6] Do you want martial law to continue?” heard morning and afternoon from February 12 to February 16.
The main defense of the Solicitor-General as counsel for the gov-
The next day, January 13, 1973, which was a Saturday, the ernment was that the question raised was political rather than
court issued a resolution requiring the respondents to comment on judicial and therefore beyond the competence of the Supreme Court.
said urgent manifestation, not later than Tuesday noon, January He further argued that even if the Court had the power to decide
16, 1973. Prior thereto, or on January 15, 1973, shortly before the issue, still there was a valid ratification or at the very least an
PART UI — THE PHILIPPINE LEGAL SYSTEM
175
acquiescence on the part of the people. The cases were deemed important devices for assessing public reaction to presidential ac-
submitted on March 21, 1973, and ten days later, they were de- tions.
cided in a single resolution disposing of the five cases.
In lieu of the interim National Assembly, the President exer-
While the Chief Justice Concepcion dissented, he penned the cised lawmaking powers with the aid of the Batasang Bayan. The
opinion for the Court. He made clear that six justices considered Batasang Bayan was convened by President Marcos on September
2 2)
the question judicial rather than political and that ratification was 21, 1976. It was a quasi-legislative machinery set up in compliance
not in accordance with the procedure prescribed by Article XV of with the mandate expressed in the referendum of July 1973. It
the 1935 Constitution. Nonetheless, with the two of the six jus-
vay ale
served as a forum for discussing policies and programs of the crisis
tices, Justice Makalintal and Justice Castro being of the belief that government. It also functioned as a mechanism for evaluating poli-
while the interpretation of the constitution is judicial, whether or
Ihee
cies and programs of local government units, like the barangay and
not it should be deemed in effect because of the popular acquies- the sangguniang bayan.
f?
cence is political, the result was that there were only four votes for
giving due course to such petitions. The Batasang Bayan was composed of members of the cabinet
SOLIDIS
and officers with cabinet rank; members of the Executive Commit-
Accordingly, Chief Justice Concepcion, in the dispositive por- tee of the Katipunan ng mga Sanggunian; one representative each
tion of the opinion for the Court, announced that “by virtue of the from the 13 regions of the country and the President as presiding
majority of six (6) votes of Justices Makalintal, Castro, Barredo, officer, It was given certain powers to approximate a working par-
Makasiar, Antonio and Esquerra with the four (4) dissenting votes liament, on the belief that the Batasang Bayan would be the appro-
of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, priate legislative transition to the interim Batasang Pambansa.
We)
all the aforementioned case are hereby dismissed. This being the
vote of the majority, there is no further judicial obstacle to the new a. The Amendments to the 1973 Constitution
Constitution being considered
Pp
in force and effect.” (Javellana v.
Executive Secretary, 50 SCRA 30) On October 16-17, 1976, in a referendum — plebiscite, seven
hyp
9 MA NAS
(7) amendments to the 1973 Constitution as proposed under Presi-
Following a referendum held on July 27-28, 1973, President dential Decree No. 1033 were ratified by the people. Among the
/;
Marcos, on December 30, 1973 reported that 90.61% of the voters amendments were the granting of concurrent lawmaking powers to
agreed to his continued tenure of the presidency even after
_
the the President which the latter exercised even after the lifting of
R70
mandatory expiration of his term under the 1935 Constitution, and
2
martial law in 1981; the creation of an Interim Batasang Pambansa;
had voted for the continuation of Martial Law. This vote was de- and making the incumbent President the regular President and
‘a4
uf
clared to be reaffirmed by 87.52% of the voters in the February 27- regular Prime Minister.
6
hays YD
28, 1975 referendum.
Irony)
The amendments would create a 120-member Batasang
Senator Aquino and several other prominent Filipinos imme- Pambansa, a People’s Assembly, consisting of elected regional mem-
diately petitioned the Supreme Court, challenging the lawmaking bers on a proportional basis, together with members of the present
powers of President Marcos on the grounds that since December Cabinet: this Batasang Pambansa would have the same power as
30, 1973, he had ceased to be the lawful President of the Philip- the Interim National Assembly that had been proposed to replace
pines. The consensus of the Court — i.e, the summary by Chief the Congress of the 1935 Constitution. The power to ratify treaties
Justice Makalintal of the individual opinions of the Justices — by a simple majority was withdrawn from both the new and the old
unequivocally affirmed the transitory provisions of the 1973 Con- interim legislatures.
stitution, even though they combined in the President all the pow-
ers of the executive and legislative branches of government. There In the December 17, 1977 Referendum, the question was:
was some doubt whether referenda held under Martial Law could “Do you vote that President Ferdinand E. Marcos continue
be more than consultative, but the Justices held that they were in
office as incumbent President and Prime Minister after the or-
ganization of the Interim Batasang Pambansa, as provided for in the Fourth Philippine Republic was inaugurated amidst elaborate
Amendment No. 3 of the 1976 amendments to the Constitution?” preparations at the Quirino Grandstand in Luneta.
The results nationwide were: 20,062,782 voted yes, while 2,104,209 Pursuant to Batas Pambansa Blg. 222, elections were called
voted no. on May 17, 1982 to elect the barangay officials consisting of the
On February 7, 1978, President Marcos signed Presidential Punong Barangay (Barangay Captain) and the six Kagawads
Decree 1296 or the Revised Election Code of 1978, which provided (Barangay Councilmen).
for the holding of elections for members of the Interim Batasang
In 1983, an event occurred that would change the course of
Pambansa (IBP). Representation to the IBP was by region. history of the country, plunging it into deep economic quagmire
On December 22, 1979, the Batasang Pambansa enacted Batas and irreversible political instability. On August 21, 1983 Filipino
Pambansa Blg. 51, “An Act Providing for the Elective or Appointive opposition leader Benigno “Ninoy” Aquino was shot to death at the
Positions in Various Local Governments and For Other Purposes” Manila International Airport ahd his alleged assassin immediately
laying the groundworks for the January 30, 1980 local elections. killed by soldiers as he returned from three years exile in the
United States.
|
In the plebiscite held simultaneously with the January 30,
1980 local elections, the amendment making 70 years as the retire- In the fourth plebiscite held on January 27, 1984, the amend-
ment age for members of the judiciary under Batas Pambansa Blg. ments ratified by the people were the following:
54, was approved by the people. 1) apportioning the members of the Batasang Pambansa
Responding to the popular clamor for President Marcos to ee the provinces, cities, and metropolitan Manila or its dis-
submit to elections having been in power for more than 15 years ricts;
already (1965-1981), he proposed certain amendments to the 1973 2) providing for an ordinance to be appended to the Consti-
Constitution for the establishment of a modified parliamentary sys- tution containing such apportionment;
tem paving the way for presidential elections.
3) establishing a different mode of presidential succession
In the third plebiscite held on April 7, 1981, the following by creating the office of Vice-President and abolishing the Execu-
amendments were likewise ratified by the people: tive Committee;
1) establishing a modified parliamentary form of govern- 4) allowing the “grant” of lands of the public domain to
ment; qualified citizens;
2) instituting electoral reforms; and 5) providing that at least a majority of the members of the
3) permitting natural-born citizens who have lost their citi- cabinet who are heads of ministries shall come from the elected
zenship to be transferees of private land, for use by them as resi- representatives of the Batasang Pambansa; and
dence. 6) providing for urban land reform and social housing pro-
The approval of the proposed amendments to the Constitution gram.
paved the way for the setting of the Presidential elections in June Elections for 183 elective seats in the 200-member Batasang
16, 1981. Because of the boycott by the opposition, Marcos was Pambansa were held on May 7, 1984. The new legislature con-
faced with no credible opponent. The Nacionalista Party put up vened on July 23, 1984.
Gen. Alejo Santos as the opponent of Marcos. Marcos easily beat
Santos and won a six years term as President.
9. PROVISIONAL GOVERNMENT
On January 17, 1982, after almost 10 years of martial rule,
In November 1985, President Marcos called for special “snap”
President Marcos proclaimed the termination of Martial Law and
presidential elections. Corazon Aquino challenged President Marcos
the restoration of normal republican government. On January 30th,
Other provisions, such as Article IT (Decl

for the presidency and elections were held on February 7, 1986. On i inci
and State Policies), Article VII (The Pretid
February 15, 1986, the Batasang Pambansa, in the exercise of pow- iatiwatiicte x ee
ciary), Article XI (Local Governments), Articl
ers given by the 1973 Constitution, proclaimed Ferdinand Marcos e XII (The Constitu-
tional Commissions), Article XIIT (Accou
President amid strong opposition and widespread protest. ntability of Public Offic-
ers), Article XIV (The National Economy
and Patrimony of the
On February 22, 1986, Minister of National Defense Juan Nation), Article XV (General Provisions) were adopte
d insofar as
Ponce Enrile holed himself in the DND Headquarters at Camp they were not inconsistent with the provisions
of the Proclamation
Aguinaldo and revolted against President Marcos. General Fidel V. while Articles VIII (Batasang Pai bansa), IX (The Prime
Minister
Ramos, then Vice-Chief of Staff later joined Enrile. Both of them and the Cabinet), XVI (Amendments), and XVII (Transitory Provi-
placed their support and recognition to Corazon C. Aquino. sions) were deemed superseded.
The Enrile-Ramos forces were supported by hundreds of thou- Under the Provisional Constitution, all the existi
ng laws, de-
sands of unarmed civilians who surrounded the two military camps crees, executive orders, proclamations, letter
s of instructions and
to prevent the Marcos military from getting Enrile and Ramos. other executive issuances not inconsistent with
this Proclamation
Other military elements soon switched their support to Enrile and were to remain operative until amended, modified
or repealed by
Ramos. the President or the regular legislative body
to be established un-
der a new Constitution. The President conti
On February 25, 1986, Corazon C. Aquino was proclaimed nued to exercise legis-
lative power.
first woman President of the Philippines in simple rites held at the =
Club Filipino and was immediately sworn in by Senior Associate Pursuant to Article V of the Provisional Constitution, a Con-
Justice of the Supreme Court Claudio Teehankee. In the evening of stitutional Commission was convened under Proclamation No. 9
the same day, President Marcos left the country. composed of 48 members with the task of drafting a constitution in
as short a period as may be consistent with the need to hasten the
President Aquino abolished the Batasang Pambansa and de- return of normal constitutional government.”
clared a revolutionary government.
When Corazon C. Aquino took her oath of office as President 10. FOURTH PHILIPPINE REPUBLIC
on February 25, 1986, Proclamation No. 1 was issued wherein she
futy “his ye
declared that she and her Vice-President were “taking power in the a. The 1987 Constitution ARAM 12
name and by the will of the Filipino people” on the basis of clear
The so-called People Power of February 1986 instal
sovereign will of the people expressed in the election of February 7, led a new
government under Corazon C. Aquino as President
1986. The new government came into power not in accordance with of the Republic
of the Philippines. On March 25, 1986, she issued
the procedure outlined in the 1973 Constitution but as explicitly Proclamation
No. 3 promulgating a provisional constitution during
stated in the preamble of Proclamation No. 3 which stated that a period of
transition to a New Constitution. On April 28, 1986, Proclamation
“the new government was installed through a direct exercise of the No. 9 was issued calling for a new draft Constitution
power of the Filipino power assisted by units of the New Armed and creating
the Constitutional Commission on 1986.
Forces of the Philippines” and that this “heroic action of the people
was done in defiance of the provisions of the 1973 Constitution, as Forty-eight members of the Commission were appointed
and
amended.” the Commission held continuous plenary session in
the National
oe Center (Batasan) Bldg. from June 2 to October 15,
The Provisional Constitution otherwise known as the Free-
dom Constitution adopted in toto the provisions of Article I (Na-
tional Territory), Article III (Citizenship), Article IV (Bill of Rights), The discussions and debates of the 48 members focuse
d on the
Article V (Duties and Obligations of Citizens), and Article VI (Suf- proposed articles of the Constitution contained in commit
tee re-
frage) of the 1973 Constitution, as amended. ports submitted for consideration on the floor. The 17
committees
180 INTRODUCTION TO LAW PART III — THE PHILIPPINE LEGAL SYSTEM J81
deliberated on resolutions filed by the commissioners taking into Constitution were deleted, the Philippines is not prevented to pur-
consideration the views of the public. sue its claims over Sabah and other territories under International
Law.
The 1987 Constitution took effect on February 2, 1987 after
the COMELEC proclaimed on February 7, 1987 that 16,605,425 The Philippines is not only declared to be a republican State
voted “yes” and 4,949,901 voted “No” with 209,461 abstaining and but it is also now referred to as a democratic State. Civilian au-
therefore the Constitution war ratified by an affirmative vote of thority is, at all times, supreme over the military and that the
76.29%. Armed Forces of the Philippines is the “protector of the people and
the State” and that “its goal is to secure the sovereignty of the
The 1987 Constitution framed a stronger and more detailed State and the integrity of the national territory.
Bill of Rights and enhanced the rigor of checks and balances against
the abuse of governmental powers. Under the 1987 Constitution, the Philippines adopts and pur-
sues a policy of freedom from nuciear weapons in its territory.
Cecilia Mufioz Palma, President of the 1986 Constitutional
Commission describes the 1987 Constitution, to wit: Non-governmental, community-based or sectoral organizations
(NGOs) are encouraged by the Constitution to promote the welfare
“This is a nationalist Constitution which prohibits for-
of the Nation.
eign military bases beyond 1991, except under certain condi-
tions, and which outlaws the stationing of nuclear weapons on As to the rights of the accused, any person under investiga-
our soil. It carries the mandate for social justice, including tion for the commission of an offense shall have the right to be
land reform and labor rights, beyond the limits of previous informed of his right to remain silent and to have competent and
constitutions. It empowers the people to amend the Constitu- independent counsel preferably of his own choice. If the person
tion and to pass their own laws, if desired. It devolves the cannot afford the services of counsel, he must be provided with one.
powers of imperial Manila to the provinces and cities in the These rights cannot be waived except in writing and in the pres-
hinterland in a clear reversal of the colonial policy of ence of counsel.
overcentralization. It raises family solidarity to the level of a
The 1987 Constitution also expressly prohibits torture, force,
constitutional policy. It demilitarizes the police. By restricting
martial law powers, the Constitution has made this draconian which vitiate his free will. Secret apy other places, Sai hep egused
option unattractive for any government. municado, or other similar forms of detention are likewise prohib-
ited. Penal and civil sanctions for violation of the aforementioned
The Constitution has attempted to institutionalize peo-
rules as well as compensation to and rehabilitation of victims of
ple power by providing for the right of people’s organizations
to be consulted at all levels of decision-making. It built into torture or similar practices, and their families may be provided for
the electoral process a party-list system capable of seating the by law.
representatives of marginalized groups in Congress, begin- The 1987 Constitution creates a bicameral legislature, the
ning with appointed sectoral representatives.” Senate as upper House composed of 24 Senators elected at large
and the House of Representatives as the Lower House composed of
The Preamble of the 1987 Constitution aims to “secure to not more than 250 members unless otherwise provided by law who
ourselves and our posterity the blessings of independence and de- are elected from legislative districts and those who, as provided by
mocracy under the rule of law and regime of truth, justice, free- law are elected through a party-list system.
dom, love, equality, and peace. The provisions of the national terri-
tory provides that which comprises the Philippine Archipelago, “with The executive power is vested in the President of the Philip-
all the islands and waters embraced therein and all other territo- pines. There shall also be an elected Vice-President who may be
ries over which the Philippines has sovereignty and jurisdiction.” appointed as a member of the Cabinet without need of confirma-
Although the words “historic rights and legal title” in the 1973 tion. The President who is elected at large is given a six-year term
clobnenct utr CoA Coe CSE AA Gtins'} Hijet _ ADL OMG
£ at
without reelection. No Vice-President shall serve for more than two The judicial power shall be vested in one Supreme Court and
successive terms. in such lower courts as may be established by law.
The President shall be the Commander-in-Chief of all armed Judicial power includes the duty of the courts of justice to
forces of the Philippines and whenever it becomes necessary, he settle actual controversies involving rights which are legally de-
may call out such armed forces to prevent or suppress lawless mandable and enforceable, and to determine whether or not there
violence, invasion or rebellion. In case of invasion or rebellion, when has been a grave abuse of discretion amounting to lack or excess of
the public safety requires it, he may, for a period not exceeding jurisdiction on the part of any branch or intrumentality of the
sixty days, suspend the privilege of the writ of habeas corpus or Government.
place the Philippines or any part thereof under martial law. Within
The Constitutional Commissions, which shall be independent,
forty-eight hours from the proclamation of martial law or the sus-
are the Civil Service Commission, the Commission on Elections,
pension of the privilege of the writ of habeas corpus, the President
and the Commission on Audit.
shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its The territorial and political subdivisions of the Republic of the
members in regular or special session, may revoke such proclama- Philippines are the provinces, cities, municipalities, and barangays.
tion or suspension, which revocation shail not be set aside by the There shall be autonomous regions in Muslim Mindanao and the
President. Upon the initiative of the President, the Congress may, Cordilleras as hereinafter provided.
in the same manner, extend such proclamation or suspension for a Each local government unit shall have the power to create its
period to be determined by the Congress, if the invasion or rebel- own sources of revenues and to levy taxes, fees and charges subject
lion shall persist and public safety requires it. to such guidelines and limitations as the Congress may provide,
The Congress, if not in session, within twenty-four hours fol- consistent with the basic policy of local autonomy. Such taxes, fees
lowing such proclamation or suspension, shall convene in accord- and charges shall accrue exclusively to the local government.
ance with its rules without need of a call. There shall be created autonomous regions in Muslim
The Supreme Court may review, in an appropriate proceeding Mindanao and in the Cordilleras consisting of provinces, cities,
filed by any citizen, the sufficiency of the factual basis of the proc- municipalities, and geographical areas sharing common and dis-
lamation of martial law or the suspension of the privilege of the tinctive historical and cultural heritage, economic and social struc-
tures, and other relevant characteristics within the framework of
writ or the extension thereof, and must promulgate its decision
the Constitution and the national sovereignty as well as territorial
thereon within thirty days from its filing.
integrity of the Republic of the Philippines. The Congress shall
A state of martial law does not suspend the operation of the enact an organic act for each autonomous region.
Constitution, nor supplant the functioning of the civil courts or
The goals of the national economy are a more equitable distri-
legislative assemblies, nor authorize the conferment of jurisdiction
bution of opportunities, income, and wealth; a sustained increase
on military courts and agencies over civilians where civil courts are
in the amount of goods and services produced by the nation for the
able to function, nor autonomatically suspend the privilege of the
benefit of the people; and an expanding productivity as the key to
writ of habeas corpus.
raising the quality of life for all, especially the underprivileged.
The suspension of the privilege of the writ of habeas corpus The State shall promote industrialization and full employ-
shall apply only to persons judicially charged for rebellion or offenses ment based on sound agricultural development and agrarian re-
inherent in or directly connected with invasion. During the suspen- form, through industries that make full and efficient use of human
sion of the privilege of the writ, any person thus arrested or de- and natural resources, and which are competitive in both domestic
tained shall be judicially charged within three days, otherwise, he and foreign markets. However, the State shall protect Filipino en-
shall be released. terprises against unfair foreign competition and trade practices.
The ratification of the new Constitution paved the way for the The rule in New York permits admission without examination
holding of elections for both the Senate and the House of Repre- in the following cases, inter alia:
sentatives. The elections were held on May 11, 1987.
“<xx
In February 1988, elections for local officials were held through-
out the country. In May 1992, national elections were held. Fidel V. “2. Any person admitted to practice and has practiced
Ramos was elected President together with Joseph “Erap” Estrada five years in another country whose jurisprudence is based on
the principles of the English Common Law.”
as Vice-President. A new era had dawned in Philippine politics.
In May 1998, the nation overwhelmingly elected Joseph “Erap” Issue: Whether the New York rule as it exists established a
Ejercito Estrada as President and Gloria Macapagal-Arroyo as Vice principle of comity. Corollarily, the question is whether the juris-
President. prudence in the Philippine Islands is based on the English Com-
mon Law.
On January 20, 2001, Gloria Macapagal-Arroyo was given her
oath of office as President of the Philippines by Chief Justice Hilario Ruling: A survey of recent cases in the Philippine Reports,
Davide after the so-called “People Power 2” and President Estrada and particularly those of the last few years, shows an increasing
left Malacafiang. reliance upon English and American authorities in the formation of
what may be termed a Philippine Common Law, as supplemental
to the statute law of this jurisdiction. An analysis will show that a
B. THE PHILIPPINE LEGAL TRADITION great preponderance of the jurisprudence of this jurisdiction is based
The Philippine Supreme Court in 1920 pronounced that by upow Anglo-American case law precedents — exclusively in apply-
the change of sovereignty in the Philippines from Spain to the ing those statutory laws which have been enacted since the change
United States, over the years from 1898 to 1920, through the en- of sovereignty and which conform more or less to American stat-
actment of new laws and the judicial system’s reliance on English utes, and — to a large extent in applying and expanding the rem-
and American cases, the Spanish civil law influence was supplanted nants of the Spanish codes and written laws.
by Anglo-American common law. It ruled that the jurisprudence of Introductory to analyzing what Spanish written laws remain
the Philippines (in 1920) was already based upon English common in force today, we will consider in a general way those Spanish
law in the form of Anglo-American common law. laws which were in force at the time of the change of sovereignty.
Spanish law became highly codified during the nineteenth
1. The In Re Shoop Case century. All of the laws of Spain were, however, not made applica-
ble to the Philippine Islands; only those which were effective here
IN RE SHOOP
were extended by royal decree. The chief codes of Spain made effec-
41 Phil. 213
tive in the Philippines were as follows:
November 29, 1920
Malcolm, J. Penal Code 1887
Code of Commerce 1888
Facts: Max Shoop, a lawyer in the State of New York, U.S.A.
applied for admission to practice law without examination in the Ley Provisional, Code of Criminal
Philippine Islands. The Rules for admission in the Philippines, Procedure, and Code of Civil
effective July 1, 1920, allowed admission without examination of
Procedure 1888
an American Attorney provided his state by comity confers the
same privilege to Philippine lawyers. Civil Code 1889
INTRODUCTION TO LAW PART II] — THE PHILIPPINE LEGAL SYSTEM 187
186
(Except portion relating to to which resort is to be had are the customs of the particular place
marriage, thus reviving a where the case arises; the customs of one locality in Spain having
portion of Marriage Law no effect on the application of law in another place (1 Manresa, pp.
of 1870) 77-79; Civil Code, Art. 6; Code of Commerce, Art. 2). Accordingly,
1870
the Spanish customary law could not have any force here. The law
Marriage Law cannot be migratory. Manresa does not define what is
or custom
Mortgage Law 1889 meant by “general principles of law,“ but from his discussion under
Railway Laws 1875 and 1877 article 6 of the Civil Code, it appears how far from a case law
system is Spanish jurisprudence. He formulates the rule that courts
Law of Waters 1866 law; second, by the customs of the
are governed: first, by written
place; third, by judicial decision; and fourth, by general principles
decisions should
In addition to these, there were certain special laws having of law. In fact, in urging that resort to judicial
limited application: Las Siete Partidas; Las Leyes de Toro; Leyes come before resort to general principles of law, Manresa rather
de la Indias; La Novisima Recopilacion; Mining Law; Notarial Law; implies that the practice of the courts is the contrary.
Spanish Military Code; and the Copyright Law. English Common Law is quite a different conception. While it
The foregoing were written laws which, by change of sover- grew out of the early Anglo-Saxon customs, it came in time to be a
eignty, acquired the force of statute law in the Philippine Islands. case law of binding force which controlled custom. In fact, it be-
There was no properly called Common Law or Case Law of
Spain came so binding that it was found necessary, in order to effect
to accompany and amplify these statutes, although there were, of justice in particular cases, to establish the Court of Chancery, which
course, the customs of the people of the Islands, which constitu
ted, became the court of equity. The English Common Law recognizes
in so far as it does not conflict with the well-settled
in a sense, unwritten law. Spanish jurisprudence does not recog- custom only
nize the principle of stare decisis; consequently, there could be
no principles of that law. Under Spanish system, on the other hand,
sense analogo us to the English or America n when the written law is silent, before considering precedents in the
Common Law in any
Common Law. Article 6 of the Civil Code provides : cases, the court is governed by the customs of the locality at the
time.
“When there is no law exactly applicable to the point in
Consequently, by the change of sovereignty there was no body
controversy, the customs of the place shall be observed, and in
of case law or common law of Spain which could be considered as
the absence thereof, the general principles of law.”
existing in connection with the written law retained in force in
In order to determine the general principles of law “judicial these Islands. The only amplification of that written law was the
decisions cannot be resorted to” x x x (2 Derecho Civil of Sanchez local customs of the people of the Islands. This is particularly true
Roman, pp. 79-81; 1 Manresa, p. 80). A lower court of Spain is at of Spanish decisions rendered since the change of sovereignty, which
liberty to disregard the decisions of a higher court. This is the do not preclude the local courts from exercising an independent
general continental rule (Holland's Jurisprudence, 11th Ed., pp. 68- judgment.
is still the basis of Spanish Common Law, for
70). “The Partidas The Spanish statute law, as amplified by Spanish commentar-
the more recent compilations are chiefly founded on it and cases ies but without a background of Spanish precedent or case law, was
which cannot be decided either by these compilations or by the by the change of sovereignty, severed from Spanish jurisprudence
local fueros must be decided by the provisions of the Partidas.” (IV and made effective in this jurisdiction to the same extent as if
Dunham, History of Spain, p. 109.) Congress had enacted new laws for the Philippines, modelled upon
The Partidas is a code law and cannot in any proper sense be those same Spanish statutes. This retention of the local private law
was merely in accordance with the principles of International Law
considered as Common Law. It specifically provided, however, for
in that regard. However, by the mere fact of the change of sover-
recourse to customs when the written law was silent. The customs
eignty, all portions of that statute law which might be termed po- Even the Spanish Civil Code has been largely modified as will
litical law were abrogated immediately by the change of sover- appear from the table in the note below.
eignty. Also, all Spanish laws, customs, and rights of property in-
consistent with the Constitution and American principles and in-
stitutions were thereupon superseded. (Sanchez v. U.S., 216 U.S. Civil Code
167).
Book and Title Subjects Status By what law affected.
We will give a brief anaysis of the further extent to which the
Spanish statute law has been repealed and cut down since the Book I
change of sovereignty. The table in the note below illustrates the Preliminary 1. General rules for Modified Act No. 2711.
the application of
situation in a general way. laws
Title I 2. Citizenship Repealed By change of sover-
Subject of new Order or Act Spanish law affected Extent 2 eignty; Acts of Con-
legislation gress, July 1, 1902,
Aug. 29, 1916; Act No.
1. Judiciary G.O. No. 21, 29,47 Judicial system under Superseded. 2927
and Act No. 136 Spanish Royal Decrees
Title II 3. Status of persons, Slightly modified Code of Civil Proce-
2. Marriage Law G.O. No. 68 Marriage Law, 1870 Modified. natural or judicial dure
3. Criminal G.O. No. 58 Code of Criminal Substantially Title III 4. Domicile In force
Procedure Procedure and Ley
superseded. Title IV 5. Marriage Never in force in Philip- See Marriage Law,
. Provisional
4. Civil Procedure Act No. 190 Code of Civil Procedure — do —
pine Islands 1870; G.O. No. 68; Act
No. 2710
5. Crimes Various Acts of Pe- Modified Title V 6. Paternity and Slightly modified Code of Civil Proce-
nal Code Philippine filiation dure
Commission and
Title VI 7. Support In force
Legislature
6. Divorce Law Title VII 8. Parental Modified — do —
Act No. 2710 Civil Code Sections applicable authority (with
superseded. regard to persons
7. Real Estate Titles Act No, 496 — do — Modified. and property of
8. Real and Chattel Acts Nos. 496 and Mortgage Law and — do — children)
Mortgages 1508 Civil Code 9. Adoption Repealed — do —
9. Corporation Law Act No. 1459 Railway Laws — do — Repealed — do —
Title VIII 10. Absence
Bankruptcy and Act No. 1956 — do —
Title IX 11. Guardianship Repealed
Insolvency Law
Title X 12. Family council — do — — do —
Negotiable Instru- Act No. 2031
ment Title XI 13. Emancipation and Modified Code of Civil Proce-
majority dure; Act No, 1891
Warehouse Act No. 2137 Code of Commerce Substantially
Receipts Law Title XII 14, Registry of civil | Never in force in Philip- See G.O. No. 68 and
superseded. status pine Islands Act No. 2711
Public Utilities Act No. 2307
Law Book II
Insurance Law Act No. 2427
Salvage Law Act No. 2616 Titles I-IIT 15. Property, Slightly modified Code of Civil Proce-
ownership, and dure
10. Usury law Act No. 2655
its modifications
Mining Law Act of Congress, Leyes de Minas —do—
July 1, 1902
11. Irrigation Act Act No. 2152 Law of Waters Modified.
12. Administrative Act No. 2711 Notarial Law, political At present, the bulk of Statute law is derivative from Anglo-
Code and Municipal Law;
Incidentally super-
American sources; derivative within the sense of having been cop-
Penal Code
seded ied, and in the sense of having been enacted by Congress or by
13. Public Land Act Nos. 926 and Civil Code Superseded; affected. virtue of its authority. This court has repeatedly held that in deal-
Sections Law. 2874
ing with the cases which arise under such statute law, the court
will be governed by the Anglo-American cases in construction and have developed a Philippine Common Law or case law based al-
application (U.S. v. De Guzman, 30 Phil. 416 at p. 419; US. v. most exclusively, except where conflicting with local customs and
Cuna, 12 Phil. 241; Cerezo v. Atlantic, Gulf & Pacific Co., 33 Phil. institutions, upon Anglo-American Common Law. The Philippine
245, 428, 429). Common Law supplements and amplifies our statute law.
To illustrate more clearly the scope of the use of Anglo-Ameri- /This court can draw but one conclusion, namely, that there
can cases in this connection, a brief analysis of some of the more has been developed, and will continue, a common law in the juris-
recent decisions of this court is advisable. In all of them, Anglo- prudence of this jurisdiction (which for purposes of distinction may
American decisions and authorities are used and relied upon to a properly be termed a Philippine Common Law), based upon the
greater or lesser degree. Although in many cases, the use is by way English Common Law in its present day form of an Anglo-Ameri-
of dictum, nevertheless, the net result is the building up of a very can Common Law, which cornmon law is effective in all of the
substantial elaboration of Anglo-American case law. subjects of law in this jurisdiction in so far as it does not conflict
From these more recent and typical cases, it appears how with the express language of the written law or with the local
broad is the scope of the use of Anglo-American authorities and customs and institutions.
precedents in the field of law subjects affected by American derived
Therefore, The jurisprudence of this jurisdiction is based upon
legislation. In the application of those statutes in the many cases
the English Common Law in its present day form of Anglo-Ameri-
which come before the court, there is bound to be developed a
can Common Law to an almost exclusive extent. By virtue of the
substantial common law. There is no question that this exists. We
foregoing, the New York rule, given a reasonable interpretation,
are merely concerned with its extent and source.
permits conferring privileges on attorneys admitted to practice in
In addition to the subjects covered above, there is a wide field the Philippine Islands similar to those privileges accorded by the
of use of Anglo-American cases in the interpretation and applica- rule of this court.
tion of the remnants of the Spanish statutes.
Accordingly, the supporting papers filed by the applicant in
To illustrate the scope of the use of Anglo-American cases in this case showing to the satisfaction of the court his qualifications
connection with the remaining Spanish statutes, a brief analysis of as an attorney-at-law, his petition is hereby granted and he is
the more recent cases under a few of the principal subjects will be admitted to the practice of law in the Philippine Islands.
appropriate. Frequently, in these cases referenced to Anglo-Ameri-
can precedents is for the purpose of showing that Spanish law and
2. The Philippine Legal System is a mixed one but
the Anglo-American law is the same, and frequently it is for the
purpose of ampliying or extending the Spanish statutes. In most primarily civil law
cases, it is for the purpose of applying those statutes to the particu- In spite of the above case, the Philippine legal system has
lar case before the court; but whatever the use, the fact remains been generally considered to be a mixed one which is primarily
that through the influence of these cases, a broad exposition of civil law. This civil law tradition was handed down by Spain during
American case law is made. its colonization of the country from 1521 to 1898. However, it was
The foregoing two groups of cases in combination, under the also influenced by the common law during the American rule from
subjects covered by Spanish statutes and those under the subjects 1898 to 1946.
covered by American-Philippine legislation and effected by the The strongest civil law influence by Spain on the Philippines
change of sovereignty, show conclusively that Anglo-American case is in the fields of private law and criminal law. The New Civil Code
law has entered practically every one of the leading subjects in the of the Philippines of 1950 updated the old Spanish Civil Code of
field of law, and in the large majority of such subjects has formed 1889 which was made applicable in the Philippines. The Spanish
the sole basis for the guidance of this court in developing the local Civil Code is greatly influenced by the Code Napoleon (French
jurisprudence. The practical result is that the past twenty years Civil Code) which in turn was based on Roman Law.
Our Revised Penal Code of 1932 is based on the Spanish and abroad have continued to consider our tradition to be a mixed
Penal Code of 1887, which took effect in the Philippines on July 14, one but primarily of civil law tradition. Noted U.P. Professor and
1887 and was in force up to December 31, 1931. legal researcher Juan F. Rivera states:
On the other hand, the commercial laws of the Philippines are “Thus, the defunct Roxas Code Commission, through its
adoptions of American laws. Chairman, the late Dr. Jorge Bocobo, has left to us a Civil
/.
Our present Corporation Code of the Philippines of 1980 up-
Code which may be characterized in a certain sense as a blend
of the first legal family (famille juridique) known as Romano-
dates and revises the Corporation Law (Act 1459) of 1906, a general
Germanic and the second legal family known as Common Law.
law authorizing the creation of corporations in the Philippines. The
Professor Rene David classifies “Philippine law” as a “mixed
evident purpose of the Philippine Commission in enacting Act 1459
system” which cannot be annexed to either the first or the
was to introduce the American Corporation into the Philippine Is-
second legal family, because it embodies both Romano-Ger-
lands as the standard commercial entity and to hasten the day when
manic and Common Law elements.3"6
the sociedad anonima of the Spanish law would be obsolete. The stat-
ute (Act 1459) is a sort of codification of American corporate laws.3”° Senator Vicente Francisco in his speech at the Francisco Law
Instruments Law which was enacted as Act School on April 22, 1951 said, “The jurisprudence of our country
OurNegotiable
2031 on February 3, 1911 is a verbatim reproduction of the Uni- has followed the general pattern of our culture, and is a unique
hybrid of the European and the Anglo-Saxon disciplines and tradi-
form Negotiable Instruments Law of the United States, approved
tions. Despite recent reforms and revisions, our civil and commer-
by the National Conference of Commissioners of Uniform States
Laws in 1896. It was adopted and followed by all the states in the cial law is predominantly Spanish in substance, and our political
union, at times with modifications. this statute was in turn pat- and constitutional law profoundly American in inspiration. The body
terned after the English Bill of Exchange Act passed by Parliament of our statutes is derived from the European school but our proce-
in 1882, the first codification of the law on negotiable paper.?"4 dure, except for such unimportable features as the jury system, has
been patterned on American practices and rules,”377
Also, thé/Ansurance Code of the Philippines of 1978 is based
on the Insurance Act of July 1, 1914 which was taken verbatim The late Justice J.B.L. Reyes in answer to a question on the
from the insurance law of California, except Chapter V thereof, influence of the civil law and common law on the Philippine Legal
which was taken largely from the insurance law of New York.3”° system said:
In the field of political law, the 1935 Philippine Constitution “There is not very much of a difference between the two
(later revised in 1973, then 1987) which took effect during Ameri- because, after all, every legal system is for justice and equity,
can rule was greatly influenced by the political precepts underlying except that each takes a different route. In civil law, the legis-
the U.S. Constitution and US Supreme Court decisions on constitu- lators state the maxims; in the common law, it is by prec-
tional issues. edents. However, in the long run, the purpose is the same to
achieve justice by the rule of law. Civil law is not as flexible as
Another important influence of Common Law is the doctrine the common law. In our history it is more influential than
of stare decisis or rule of precedent. common law.”
To reiterate, although in the case of In re Shoop, the Philip-
— 000 —
pine Supreme Court was of the position that the Philippine legal
tradition in 1920 was based on common law, legal luminaries here S76Rivera, op. cit., p. xvi, citing David and Brierly, Major Legal Systems in
the
World Today (1968), London: Steven & Sons, at page 62 where it is stated:
“Spanish
colonization brought the Philippines into the Romano-Germanic legal family. Fifty
years of occu on by the United States of America has nevertheless intro uced
373A sbayani, Commercial Laws of the Philippines, Vol. III, p. 7. new elements, making Philippine law a mixed system.”
374Campos, Jr. and Lopez-Campos, Negotiable Instruments Law, p. 6. 3”7Adeva, Introduction to Philippine Law, Manila, Emmanuel Educational
315 Asbayani, Commercial Laws of the Philippines, Vol. II, p. 4. Distributor, 1953, p. 8.

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Published & Distributed by

April 01, 2001 seeeneeeeeeseeeee

Cc. Divine Law...

Law, its nature “"

PART II. The World’s Legal Systems

The Legal Systems of the World ....... 27

1. The Egyptian Legal System ........... PPPTTT TT

Common Law Tradition 112 6. “ys

A. Law, its role in society.

Natural Law can be further subdivided into physical law, moral

14Gamboa, op. cit., p. 4.

(c) The positive school of jurisprudence which considers the

The historical school or jurisprudence examines the manner

23William Seal Carpenter, Foundations of Modern Jurisprudence, New York,

43Pascual, op. cit., p. 115. 46Pascual, op. cit., p. 115-117.

49Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law, Boulder, San

and “public inter-

understood as a system of rules. Though this view has a certain

®1Murphy and Coleman, op. cit., p. 33.

In its main outlines Pashukanis’ argument was quite simple.

71Iq,, pp. 11-12.

78Id., pp. 58-63.

827d, 847q. pp. 90-91.

Miia. fry Roweted (

rhs Wg,p. 141° Con fucins-

Buddhism was founded by one man, one of the greatest who

147g, pp. 211-218. 1197q., Gunther, Inside Asia, pp. 390-391.

1957 d., p. 288.

1397q., pp. 319-323.

underage came une tele oe er Sacka- bodied in a provincial edict (Edictum,Provinciale),

9. Jus Novum (new law) consisted of the constitutions of

1627d., pp. 1015-1016.

170Howe, Studies Civ. L. (2d Ed., 1905), pp. 143, 145.

op. cit., p. 30.

his fierce vassals — later known as “boyars,” and famous in Rus-

1967... pp. 787-789.

1947q., pp. 773-775. 197d, pp. 794-795.

200Pratt and Moore, op. cit., pp. 94-100

205Wigmore, op. cit., pp. 817-819. 209Fd., pp. 835-836.

manic style. One of Charlemagne’s first parliamentary decrees, called

220Wigmore, op. cit., p. 474. 2247d., pp. 480-481.

inAasg came with the written constitution; Count Ito, its

287d. p. 521. 232Tq

riatth.bato~ Sto Ger e4

250 ddy, op. cit., p. 177 252]. pp. 178-179.

*8Burdick, op. cit., pp. 83-84.

262Radin, op. cit., pp. 115-116. 266Radin, pp. 17-21, 62-63.

dition, to be their birth right as English subjects,

270Black’s Law of Judicial Precedents, p. 184. 2747. pp. 1098-1102.

278Radin, op. cit., p. 273.

282Tyther’s Elements of General History (1855), p. 185.

100 INTRODUCTION TO LAW PART II — THE WORLD’S LEGAL SYSTEMS 101

®21Schlesinger, op. cit.,p. 311. . A Vit fz : Cotes XL 847d, p. 316.

3348chlesinger, op. cit., p. 812.

4, Distinctions between civil law and common law

They shall be burned; those who by their strength or cunning have

347Id., pp. 3-4.

It contained twelve books divided into fifty-four titles com- emirate.