Chapter 1 Indigenous Legal Culture

Who are the indigenous people? Refers to group of people who have continuously lived as
organized community with common bonds of language, customs, traditions and other
distinctive cultural traits (ALTHOUGH they do not really fit into one single anthropological
category)

The very clear cut gap that sets them apart from major social and historical trend is that they
are ostracized by larger society

DIFFERENTIATED FROM THE MAJORITY OF THE FILIPINOS through resistance to political social
cultural colonization

The term also includes those who are regarded as indigenous on account of their descent from
population

Americans have defined indigenous as non Christian

This proves that among the distinctive traits of indigenes is the religion

The Early Inhabitants

Based on wave migration theory, early inhabitants traced back to 50,000 years were TABON
men lived in Palawan caves or back to 8000 BC when Negritos came during stone age

Other opinion include 2 million years ago existence of Java man

The wave theory was largely debunked and the believed postulate if that only 2 movements of
people into southeast asia (1) Australoid people (2)Southern mongoloid

The Concept of Legal Culture

The point is that law must be seen in context. The proper context of a legal system is
culture. Culture has a big impact in the development of law because culture shapes a society.
And the law that people legislate and execute is a reaction to the happenings in a society.

Culture is the integrated sum of learned behavior patterns which are manifested and shared
by members of society

Custom- norms of conduct taken together

Legal culture in our ancestors

1. During the stone age, people are afraid of supernatural beings and forces of nature like
volcano eruption and lightning. And they usually pacify these terrible acts with food
offerings and religious rituals.
 2. If a ritual seemed to appease them, they would repeat it. With this, we can say that
REASONING BY ANALOGY has started
3. When primitive man began to think, that started the development of the legal
system(reforms)
4. When he realized the necessity of cooperation with neighbors, they started to think of
alternative ways of compensation(instead of tribal wars and headhunting). The idea of
damages and compensation for death.
5. The existence of advisor or mediator started the development of judicial institutions as
it mirrors what today we call judge. This mediator proposed the idea of reconciliation,
for example, by means of sacrifices to a sprit who soothed angry hearts.
6. The concept of reconciliation led to custom of peace pacts between tribes. For example,
drinking of one sprinkled with each others blood

Evolution of Customs into Law: from the stone age to aggriculture

How does custom become law?

HOEBEL: 4 basic elements of a legal system
1. Norms
2. Regularity of enforcement
3. Judgment mechanism
4. Enforcement(usually with positive or negative sanction)

Or
Prof PV Fernandez
1. It must be a rule of general character presciribing aspecific norm of conduct
2. Ther emust be a form of sanction imposed b the community in case of non observance

Example of a custom that didnt become a law is offering food to god

Example of a custom that became a law: father being head of the family

For such norms to qualify as law, the fundamental requisites is the legitimate use of physical
coercion by a socially authorized agent

When customs change, the new ones take place if it becomes acceptable to the populace,
consciously or subconsciously.

For example, the first wave of Malays took heads but not the second wave that came to the
Philippines

Changes in customs can be explained by how mobile population adjust to every enfvironment,
creatively producing local variation in response to resource opportunities and culture contracts

Hunting
Trapping animals
Domestication
All these three gave birth to laws on property. Traps left in the wild are recognized as property
of the trapper based on the idea that labor is a mode of acquiring property. animal caught in
the trap also belonged to the owner under the theory of capture. Off spring on Animals
become a property .

It was the advent of agriculture that quickly developed the primitive mans notion of property.
Because he settled down in one place, theres a need to have exclusive possession of a piece of
land.

A land becomes a property through occupancy. And the right extends to the power to keep
it.

Pre Spanish Philippines already had a notion of legal postulates or chief function of law.
Wherein for example property rights presupposes the usufruct right, tenacy, and lease.

Legal postulates = generalized statements of tendencies actually operating, of the

presupposition on which a particular civilization is based.

For example, irrigation of rice terraces, evolved a system of water rights which are perpetual
but transferable. Thus, a transfer of rice lands includes rights to water that servesthe field. The
source of water are both common and private property; water flowing from sprigs are available
on priority basis

The concept of private ownership began to replace communal rights. Private property was
chiefly formed by the gradual disntanglement of the separate rights of individuals frim blended
right og the community. As tribe becomes bigger, it needed a central authority to impose
obligation and define rights. The notion of legal possession became a common practice under a
datu who would assign rights to a member of his clan.

(It used to be communal but became private properties)

example: agriculture would make a mark using branch of tree to establish their claim on the
crops grown within the boundaries
MODES OF ACQUISITION of land
(1) Discovery
(2) Occupancy
(3) Labor
Different laws
(1) Mediator or judge
(2) Compensation for damages
(3) Property
(4) System of water rights
(5) Hereditary

The people thought themselves as secondary owners or stewards of land. Worships of Anitos
and diwatas are related to land.Rituals are performed for them in order ot have a good harvest.
At this stage of development, all social and cultural activiites were religious activities as well,
and agriculture had a religious aspect.
Customary law The worshipful attitude towards anitos provided the necessary sanction to
customary law. And so they resorted to recognize claims of ownership of land for fear of
displeasing the gods.

And when the possessor die, it was only natural for the children to take over the use or
cultivation of property. Hereditaty laws

Land was thought to be communal property and not transferable by inheritance. Personal
property could be descened to family members.

When primitive men came out of hunting stage into age of agriculture, he became close to
nature. Environmental law

Social Status and Organization

Men began to form larger communities and government became a necessity. The leader
(pangulo, kapunoan) created the law for the barangay and encrusted custom into tradition and
tradition into law. The relation between chief head and members refined the legal concept of
obligation (utang)

Personal and Family Law

Even before colonization, family is seen as basic unit and marriage was entered by mutual
consent between families rather than by individuals.
Divorce or separation liberal, for incompatibility, neglect
Succession- closly to bloodlines

Foreign influence-mostly from India and China

Concept of contract, barter, commercial relation were learned thru dealing with China
Custom or arrange marriage by middlemen
Shipbuilding was a thirving industry
At the time islam came to the Philippines, there were already full time farmers, craftsmen,
shipwrights, goldsmiths, and fishermen.