HISTORICAL PERSPECTIVE

OF LAW

A Legal Philosophy Report

Submitted to:

Atty. Rochelle Dakanay-GalanoProfessor

Respectfully Submitted by:

ANACTA, Virlyn GraceBULLECER, Cazzandhra Mae

DANSAL, Angelica KrystleDELA FUENTE, Rachel Ann

Legal Philosophy1-C

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Table of Contents

a. Historical Perspective as a Starting Point . . . . . . . . . . . . . . . . . . . . 3

b. Historical Element in the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

c. Historical View Limited in Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

d. Nature of the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

i. The Oblutiacs of People. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ii. The Folksoul. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

e. Life of the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

f. Basic Points in Historical Jurisprudence. . . . . . . . . . . . . . . . . . . . . . . 5

i. State and Folksoul. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ii. Law Not Deliberately Made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

g. Similarity of Different Legal Orders. . . . . . . . . . . . . . . . . . . . . . . . . . 6

i. Historical Reason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

ii. Jurisprudential Reason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

h. Value of Historical Perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

i. Introduction to History of Philippine Legal System . . . . . . . . . . . . . . . . 7

j. History of Philippine Legal System. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

i. Pre-Spanish Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

ii. The Spanish Regime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

iii. The American Era and the Commonwealth . . . . . . . . . . . . . . . . . .8

iv. The Japanese Occupation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

v. Period of the Republic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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CHAPTER II: THE HISTORICAL PERSPECTIVE

A. HISTORICAL PERSPECTIVE AS A STARTING POINT

In terms of chronology, the historical school was preceded by the teleogical school of jurisprudence. There are good reasons for starting with the historical approach to the study of the nature of the law. The first is the basis itself of the perspective of the historical school of jurisprudence. The founder of historical school, Freidrich Karl von Savigny postulated that the concept of the soul and spirit of the people provides the sense of beginning and unfolding of the law. The other reason is the renaissance of the natural law theory, which is the cornerstone of the house of teleogical jurisprudence.

Modern jurisprudents have ceased to consider or to pursue the historical perspective as to the nature of the law. However, it is still useful in the evaluation of the legal development of a nation especially its legal history.

B. HISTORICAL ELEMENT IN THE LAW

The presence of the historical element in the law is manifested by at least two important marks: 1) the changes in the social existence of the people, and 2) the progressive conditions of their politico-legal development. These historical facts are unavoidable and are still in progress, although they may not have been uninterrupted. For historical jurisprudence, the law could not have thrived except in this environment.

C. HISTORICAL VIEW LIMITED IN SCOPE

From the observation post of historical jurisprudence, the law is not universal in scope. Law is only national; it is oriented to the time, place and individuality of a particular group of people. The reason for this is that social milieu varies from time to time, from place to place, and from people to people.

D. NATURE OF THE LAW

In the words of Sir Henry Summer Maine, the acknowledged leader of historical jurisprudence in England, the law is the product "of the huge mass of opinions, beliefs, superstitions, and prejudices of a people produced by institutions of human nature reacting upon one another.” But the seedbed of the law given by Maine is not quite adequate to explain the different treasuries of the folksoul and hence, incomplete to contain the jural and nonjural materials of a group of people. Maine explains only the existence of two of the many treasuries of the folksoul.

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1) THE OBLUTIACS OF A PEOPLE

Constituting the folk-soul or folk-mind of a people are their OBLUTIACS, an acronym which, according to Prof. Pascual, means the people's: Opinions, Beliefs, Longings, Usages, Traditions, Idiosyncracies, Arts, Customs, and even Superstitions.

2) THE FOLKSOUL

The folk-soul is composed of several elements. Each element is a treasury of the national character of the people. Together they form the common consciousness and intelligence of the people. Together they reveal the people's cultural identity.

a) Folklore

This element is composed of the beliefs and traditions of a people. They constitute of the folk learning or folk wisdom (paniniwala). The folklore may survive in the form of epic tales, which are very rare. A good example in the Philippines is the epic of Ibalon, an ancient narrative of the various phases of the early life in the Bicol region during the reign of Handiong. There are others, like the Darangan, notably the Indarapatra, the epic of the Muslims of Lake Lanao; the Biag ni Lam-ang, the epic of the Ilocano region; the Tuwaang of the Bogobos of Davao; the epic of the Bornean colonizers of the Island of Panay, which is recorded in the Maragtas, where Datu Sumakwel's code of laws is found. But a great deal of people’s beliefs and traditions has survived in the form of telling parables (talinghaga) and riddles (bugtong).

b) Folksaying

This element of the folksoul is composed of the opinions xxx, the rural reflections of a people. The folksaying is composed of the proverbial maxims (salawikain) and sentiments (sabi) of the people. Maxims are short pithy statements containing a general doctrine or truth. Sentiments are more or less the settled sense of the people.

c) Folkway

Folkways or kaugalian are rational and widespread habitual courses of actions or practices (ugali) which have been followed and enforced by a group of people. Thus in the early times, folkways provided the first sources of rules. The obligatory nature of the folkways stems from the deep-seated desire of the members of the group to keep the respect and esteem of the group by upholding them. Thus, folkways or kaugalian have become definite norms of activity and conduct.

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d) Folksong

This form of expression of a people's interests and feelings contains their rejoicings (diyuna), lamentations (panaghoy), longings (mithi), and aspirations (adhika).

e) Folkdance

It is possible that they were regarded as religious ceremonies in the beginning. There are appropriate folk dances dedicated tot he people's object of reverence and awe; folkdances which have to do with ceremonials like war or hunting; folkdances connected with celebrations or play like wedding or thanksgiving; folkdances related with work like planting and harvesting; and folkdances which have to do with love and affection like dances of courtship, rejection, or fertility.

f) Folkart

This category, broadly known in Pilipino as sining, is composed of the skill and art peculiar to a people. xxx. To a great extent the first objects were basically utilitarian or symbolic. Later came the objects of beauty and color.

E. LIFE OF THE LAW

For historical jurisprudence, the folksoul became a “storied and documented being,” no longer a theory but a historical being embodying a soul and spirit of the people. From this observation point, the law is considered as “the revelation and development of the national spirit.”

F. BASIC POINTS OF HISTORICAL JURIPRUDENCE

1) STATE AND FOLKSOUL

As human relations progressed from family or clan to community and further to large-scale territory, a sense of national awareness grew among the people, "where the individual, without shedding his narrower relationship with his family and region, became related, and, in certain instances, even subordinated, to the national interests."

Following the above-mentioned pattern of expansion of human relations of the people, the process of keeping peace and order grew apace with it. At the family-clan level, a direct appeal to the head of the family or clan was enough to resolve human conflicts. As progress continued, something like a communal type of dispute resolution mechanism emerged. Eventually, as progress became more complicated, the pattern of dispute resolution and maintenance of peace and order gave way to the more complex machinery of the body politic, i.e., the State with a national government, where the reins of government were placed in the hands of, and

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practiced by, a professional group in the community and where the people were bound by common centers of interests and purposes.

The State is thus considered as the highest expression of the folk-soul or diwa of a people. Indeed, it is the highest national structure erected by the socio-political development of the people. In another way of saying it, the body politic is considered by historical jurisprudence as the final juristic personification of a nation or people.

2) LAW NOT DELIBERATELY MADE

In the view of the historical school, therefore, "the law is not deliberately made by the effort of human reason, but is the product of common conviction, the folk-soul (which) awakens this conviction, and (that) the law is historically determined." In the words of Mr. Justice Cardozo, "history built up the system and the law that went with it." Quoting Dean Pound, Pascual writes:

Reason alone cannot work miracles in legal development nor work wonders in constitution making, decision making, codification, or legislation. The growth of law is a historical process. It does not proceed from the peremptory or arbitrary will or wish of the legislators or judges.

G. SIMILARITY IN DIFFERENT LEGAL ORDERS

Historical jurisprudence to reconcile its concept of the nature of law with phenomenon that in some groups of people there is a similarity in their legal orders.

HISTORICAL REASON

In the process of development of a group of people, many outside factors or foreign trait-complexes, may have been assimilated by the people.Some aspects of the foreign legal system may be inconsistent with the oblutiacs of the people coming under the dominion of another group of people.

JURISPRUDENTIAL REASON

The precepts of justice and fairness, which is permanent and present in all men everywhere since they are impressed in the human heart and mind, explains the resemblance or similarity in some aspects of the legal orders of different principles

Example: the Philippine legal order provides as a general rule that actions prescribe by lapse of time, which may be different with different peoples (folkways).

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H. VALUE OF HISTORICAL PERSPECTIVE

To policy makers and government functionaries, legal research is to be oriented to the soul and spirit of the people.

In the Philippines, the CIVIL CODE is partly based on the OBLUTIACS of the Filipino People. In the original draft of the Civil Code of the Philippines, there were provisions intended to supplement Article 9, which provides that no judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. The proposed provisions in the draft provide that if a law does not dissolve a disputed point, the folkway shall govern. In its absence, the folklore or paniniwala of the people on justice and equity shall serve as guides to judicial determination.

Other examples of provisions in the Civil Code which were based on folksoul are:

a. Article 19 to 36 Philippine folkway concerning human relationsb. Absolute Community Property between spouses (Family Code)c. The FAMILY as a social institution (Family Code)d. Concept of Family Home (Family Code)

With or without the modifications the historical doctrine of the nature of the law as the life and spirit of the people is valuable and practicable in the legal ordering of society.

I. INTRODUCTION TO THE HISTORY OF PHILIPPINE LEGAL SYSTEM

The Philippine legal system is aptly described as a blend of customary usage, and Roman (civil law) and Anglo-American (common law) systems. The civil law operates in areas such as family relations, property, succession, contract and criminal law while statutes and principles of common law origin are evident in such areas as constitutional law, procedure, corporation law, negotiable instruments, taxation, insurance, labor relations, banking and currency. In some Southern parts of the islands, Islamic law is observed.

This particular legal system is the result of the immigration of Muslim Malays in the fourteenth century and the subsequent colonization of the islands by Spain and the United States.

J. HISTORICAL BACKGROUND

Philippine legal history and the effects of colonization of other countries to our laws:

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a. Pre-Spanish Period

Historians have shown conclusively that the early Filipinos lived in numerous independent communities called barangays under various native rules which were largely customary and unwritten. Evidence points to the existence of two codes, namely, the Maragtas Code issued by Datu Sumakwel of Panay Island some time between 1200 and 1212 AD and the Penal Code of Kalantiao issued by a datu of that name in 1433.

These customary laws dealt with subjects such as family relations, inheritance, usury, partnerships, loans, property rights, barter and sale, and crime and punishment. Like many ancient societies, trial by ordeal was practiced in the barangay.

b. The Spanish Regime

The arrival of Ferdinand Magellan in the Philippines on 16 March 1521 presaged a new era in the history of Philippine law.

Spanish laws and codes were extended to the Philippines either expressly by royal decrees or by implication through the issuance of special laws for the islands. The most prominent of these laws and codes were the Fuero Juzgo, Fuero Real, Las Siete Partidas, Las Leyes de Toros, Nueva Recopilacion de Las Leyes de Indias, which contained all the laws then in force in the Spanish colonies and the Novisima Recopilacion, which comprised all the laws from the fifteenth century up to 1805.

c. The American Era and the Commonwealth

The end of the Spanish-American War, which was followed by the signing of the Treaty of Paris on 10 December 1898, paved the way for the cession of the Philippines to the United States. Upon the establishment of American sovereignty, the political laws of the Philippines were totally abrogated and Spanish laws, customs and rights of property inconsistent with the US Constitution and with American principles and institutions were superseded. The government operated under different organic laws, namely:

• President MacKinley’s Instructions to the Second Philippine Commission on 07 April 1900;

• the Spooner Amendment of 1901; • the Philippine Bill of 1902; t• he Jones Law of 1916 and • the Tydings-MacDuffie Law of 1934.

Pursuant to the Tydings-MacDuffie Law, a Commonwealth government was to be established for a transitional period of ten years before independence could be granted. Likewise, it granted to the Filipinos a right to formulate their own Constitution. In due course, a constitution was

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approved on 8 February 1935 which was signed by US President Franklin D Roosevelt on 23 March 1935 and ratified at a plebiscite held on 14 May 1935, voters went to the polls to elect the first set of executive and legislative officials led by President Manuel L. Quezon and Vice-President Sergio Osmeña.

d. The Japanese Occupation

On 08 December 1941, the Philippines was invaded by Japanese forces and was occupied until 1944. during the three-year military rule, a 1943 Constitution was drafted and ratified by a special national convention of the Kapisanan sa Paglilingkod ng Bagong Pilipinas (KALIBAPI),6 which led to the establishment of the short-lived Japanese-sponsored republic headed by President Jose P Laurel.

During the Japanese occupation, the Commonwealth, then in exile, functioned in Washington DC from 13 May 1942 to 03 October 1944 until its re-establishment in Manila on 28 February 1945 by President Sergio Osmeña.

After the liberation of the Philippines, the Filipinos picked up where they had left off before the holocaust. The period of reconstruction and rehabilitation began. Efforts were also made at continuing the program which constituted a part of the transition preparatory to complete in- dependence from the United States of America.

e. Period of the Republic

In fulfillment of her promise to grant Philippine independence, the United States proclaimed the Philippines a sovereign state on the historic morning of July 4, 1946. With this came new responsibilities for the Filipinos.

The first decade since the proclamation of Philippine independence saw three Presidents with varied temperaments. President Manuel A. Roxas, who had the honor of being the last President of the Common- wealth and the first President of the Republic, dedicated his administration to the task of laying the foundations of the republican institutions and the independent existence of the country. The program of rehabilitation and reconstruction did not becloud the concern for social and economic reforms, and even legal development. When President Elpidio Quirino succeeded President Roxas, after the latter's untimely death, the former continued the program of his predecessor.

A radical change came about with the election of President Ramon Magsaysay. Great emphasis was given to the rights of the common "tao" to the effect that "he who has less in life should have more in law."

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Except for the sudden resurgence of nationalism, especially during the administration of President Carlos P. Garcia, the second decade of the Republic has been merely a continuation of the basic programs of the previous administrations. It is, however, significant to note that under the administration of President Diosdado Macapagal, there was an attempt to revise some aspects of our semi-feudal legal system in order to fit the program of agro-industrial development for the country. Economic and social developments were also brought about with the ideas expressed by Filipino thinkers as basis. With the inauguration of President, Ferdinand E. Marcos, there has been a focus on national greatness, drawing inspiration from the monumental grandeur of the nation's heroic past.

The1973 Constitution of the Republic of the Philippines, promulgated after Marcos' declaration of martial law, provides for a parliamentary form of government.

Presidential Proclamation No. 3, popularly known as the 1986Provisional Freedom Constitution,was the most far reaching set of amendments to the 1973 constitution that it was almost a constitution in its own right. However, it is really a large set of amendments which superseded and abolished certain provisions from the constitution. It granted the President certain powers to remove officials from office, reorganize the government and hold a new constitutional convention to draft a new constitution

Following the EDSA People Power Revolution that removed President Ferdinand E.Marcos from office, the new President, Corazon C. Aquino issued Proclamation No.3 and the adoption of a provisional constitution that would prepare for the next constitution which became the 1987 Constitution.

Sources: Pascual, Crisólito. Introduction to Legal Philosophy. Tenth ed. Quezon: U.P. Law Center, 2003. Balbastro, Arturo E.. “Philippine Legal Philosophy”. Fellowship in Jurisprudence .NEC·ICA U.P. Faculty Development Program.

Websites: http://aboutphilippines.ph/filer/phil_history-of-law.pdf

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