Vous êtes sur la page 1sur 71

LEGAL HISTORY

Midterms Reviewer
Maam Michelle San Buenaventura-Dy
Bernardino | Castillo | Daliuag | Montemayor | Sumulong | Tamayo | Yamat

I. INDIGENOUS LAW
FERNANDEZ
CHAPTER 1: Pre-Conquest Society and Custom Law

Custom Law - body of customs and usages dealing with liability in pre-conquest society and
enforced by political authority in the communities concerned. It consisted of unwritten rules
preserved in songs and chants and in the memory of elder persons in the community who were
consulted in connection with disputes requiring adjudication according to their ugali.
Widespread belief: Such rules were ordained by a wise and just law-giver of long ago,
and left to the community for its governance
Concept of immutable law - There was an assumption that laws were complete and
needed no addition or modification
Criteria of legality:
(1) Normativeness
(2) Existence of some sanction
Not one system alone flourished, but many
Political community - society where there is prevailing recognition of cases when the use of force
is wrongful, and cases when it is privileged or legitimate
No political organization exercised governmental authority on a regional basis, but custom law
was a highly integrative force. There was a substantial degree of political unity within a definite
area or region. Because law enforcement was undertaken by the barangays or interested
households, the administration of law was highly decentralized. Thus, within the regional political
community, government was existing but it was diffused, not centralized.
Factors leading to DIVERSITY within the regional community, resulting in the development of
sub-systems of custom law:
Faulty recollection,
Inadequacy of inter-communication,
Differences in local conditions
Rise of strong datus in particular barangays
Emergence of the barangay as a political entity
Physical barriers (mountains, forests, seas) and substantial distances between the
villages
Variance in the degree of political integration:
High - The datus authority was consolidated; his power was unchallenged and he
undertook the functions of the judge, exercising criminal as well as civil jurisdiction, and
sometimes functioned as a legislator
Low or partial - The datu functioned only as a leader of his peers; he did not legislate but
merely executed the received law, and acted only as a mediator or conciliator
Grave offenses like murder and theft were considered public offenses and were amenable to
redress by public authority
General aspects of custom law: Government was minimal. There was no specialized machinery
of justice. Also absent were the great mass of legal concepts and standards that make for
graduation and differentiation in liability in our present legal system.
The acceleration of trade and commerce produced disturbing changes. The household was
compelled to produce surplus for trade, subjecting it to serious strains: it stimulated recruitment of
alipin, attended with abuses, disregard for kinship ties and forcible capture of slaves. Equally
important developments were the (1) use of precious metal as medium of exchange, (2) use of
standard weights and measures, and (3) growing appetite for imported goods

1
The orientation of custom law was distinctly secular. The function of religion was a household
affair and not a concern of the community.
Functions of Custom Law: Its task was to regulate of the use of force in the resolution of conflicts.
This was discharged in a number of ways:
Prescribe conditions for legitimate use of force (e.g self-defense, avenge a grievous
wrong)
Diminish vengeance through composition and vindication by public authority
Determine through the order of power to resolve conflicts and by what means
Determine the order of labor in accordance with ones social and economic status
Central function of the custom law was to preserve the peace
Order of Labor: Custom law determined those with the power of command and those under
obligation to serve. The obligation of service was of two types
Obligation of the HHs to render services to the chief
Servitude imposed for inability to pay a fine or a debt
Community of Self-Sufficient HHs: Within each barangay, each HH functioned as the basic social
and economic unit. Its characteristics were (1) economic independency and (2) self-sufficiency.
Unlike Ancient Hebrew and Roman families, the pre-conquest household had no concept of patria
potestas nor recognition of the subjection of women. Custom law stressed parental as well as
conjugal duty and gave firm recognition to the principle of equality between the sexes.This is
likely due to (1) the recognition of bilateral relationship among the early Filipinos, since each child
was related to two kin-groups exercising influence, and (2) the physical environment and
economic organization; any youth who fled his home could survive well in the fruitful forest.
Status was largely dependent on wealth and birth. Illegitimates generally had no rights although
they were assigned a modest share in the inheritance
Once married, women were virtually emancipated. They could own property, conduct business,
trade with their own money, obtain divorce and re-marry.

CHAPTER 2: Liability

1. Household as Subject of Custom Law


The principal subjects of common law were households. Rules mostly applied to the conduct of
individual persons, but when the substance of the rules themselves are considered in relation to
one another, they are rendered coherent and understandable only if taken with respect to
households.
The basis of membership in a barangaythe basis of entitlement to its protectionwas kinship.
An individual was entitled to redress in at least two ways.
Retaliate with his household
Petition the datu (if the aggrieved party belonged to his barangay)
Explanation for the dominant position of the household:
Ancestor worship - essential part of native religion
Rice culture - availability of workhands
Physical force - essential to security and group respect
Social regulation - it was the relationship between groups that were first dealt with by
legal rules, thus, such groups were the original subjects of law
2. Wrongs Imputable to the Household
Principle of collective responsibility - in cases of murder and theft, crime subjected to
composition, serious theft, breaches of agreement, and even for less serious offenses or crimes,
the sanctions were imposed or vengeance was taken against the whole household

2
3. Reciprocity or Compensation (utang)
This reflected their concept of justice and was broader than mere debt.
Three general norms:
An injury, detriment or wrong ought to be repaid with a similar injury/detriment/wrong
Whoever sustains a loss through anothers acts ought to receive an equivalent
compensation
Whoever receives a benefit/advantage/gain ought to repay or return such
4. Lex Talionis
Principle of REVENGE
If the offended household was of greater strength and prestige, the vengeance enacted against
the offenders household was usually greater and out of proportion to the offense
Revenge was not only a privilege but a duty. It was for the spirit that cried for vengeance to be put
to rest.
5. Compensation in Lieu of Revenge
The development of compensation as an alternative to revenge was accelerated by substantial
integration within the barangay. As the datu consolidated his authority, he was increasingly able
to maintain peace and order and to provide justice within his barangay.
Between different barangays, it was the custom for the chiefs of neutral barangays to mediate.
6. Liability Based on Fault
Fault was as essential component of liability. Without the element of fault, liability was reduced
(e.g. accidental killing) This also applied to payments made in connection with divorce; whoever
caused the separation paid a fine.
7. Compensation for Loss or Detriment
In certain cases, liability was imposed for loss/detriment independently of fault or any wrongful
conduct.
A freeman who left his barangay was obliged to make customary payment to his barangay.
Women in each household pay for their keep with services.
In marriage, customary payment was made to the household of the bride for the loss of her
services. Further, panhimuyat, a special amount, was paid to the mother for rearing the bride.
8. Debt
Whoever received, by express agreement or implied, any substantial and material benefit,
advantage or gain had the obligation to return such in equal measure.
Pasanor - where the household of the bride received an extra benefit through an inordinately
large dowry, an obligation arose to make recompense to the bridegrooms household
Where a household paid another mans fine/debt, even without the mans consent, the debt was
thereafter owed to the household as creditor.
9. Extent of Liability of Household
If the debtors assets were insufficient, the creditor was entitled to make alipin of the members of
the debtor household.The greater the unpaid claim, the more householders could be converted to
alipin. The principal however, remained intact no matter how long the servitude may be and only
a payment from the debtor household emancipated the alipin. Where payment was made by a
different household, the debt and corresponding alipin were transferred to it.

CHAPTER 4: Minimum Government

1. Barangay as a political community


Every household (HH) recognizes the authority of the DATU. They acknowledge his power and
the legitimacy of its exercise.

3
LEADERSHIP QUALITIES - Physical strength, prowess in arms, and other personal
endowment
INDEPENDENCE from external control
They have limitations to conquest:
Custom, friendship and kinship among other barangays
Inherent limits due to BARRIERS of distance, natural obstacles, and absence of
communication facilities
Absence of govt machinery to administer the affairs of a territorially expansive
community
Note: Conquest shifted the view on membership from kinship to TERRITORIALITY
e.g. A freeman can move his whole HH to a different brgy and be members there without
serious hindrance.

2. Minimal Government
HH are virtually SELF-SUFFICIENT and AUTONOMOUS
Administration of brgy affairs was a one-man show (DATU)
TWO functions of the brgy:
Resisting and repelling invasion
Preservation of peace and order within its territory

3. No monopoly of force
There was no central authority in the brgy strong enough to disarm every resident and repel, by
itself, attacks from without. -- Parties in dispute generally invoke the intervention of the datu,
otherwise, his authority was not exercised.

4. Principle of SELF-HELP
Custom for each freeman to carry weapons and to use them for his own protection, or
advancement of his own interests.
ESSENTIAL to SURVIVAL which reflects the essentiality of military preparedness at that
time.
SKILL and VALOR in the use of arms was highly prized and BRAVERY was admired.
This leads to RETALIATION which was used as an effective deterrent to unlawful aggression.

5. System of Obligations in the brgy


POWER STRUCTURE (top to bottom):
DATU - great chief
PETTY CHIEFS
FREEMAN/TIMAWAS - HH of which are under a chief
The first 2 are obliged to provide PROTECTION, SECURITY, and ASSISTANCE.
The last group is obliged to provide CUSTOMARY SERVICES
Which was rarely fulfilled due to the abundance of resources and self-sufficiency
(SUBSISTENCE)

6. Status of Datu
Dependent on PERSONAL QUALITIES, not on office or tradition
CHIEFTAIN, not king
Based on MERIT that excludes charisma to gain prestige via:
Prowess

4
Valor
Wealth
Wisdom
One of can provide PROTECTION or COMPEL OBEDIENCE

7. Prerogatives of the datu


The DATU is ENTITLED to:
Veneration and respect
Customary services which he can invoke for either of the two below:
Interest of the community as a whole
Interest of the datu and his HH

8. Datu as CAPTAIN in WAR


He plans, leads, and directs the course of battle
Exercises emergency powers over MANPOWER and RESOURCES of the brgy (since he is a
chieftain, not a king, so he doesnt normally own everything and everyone).

9. Datu as JUDGE, ARBITRATOR, and MEDIATOR


Role as preserver of PEACE
Adjudicates disputes - when parties fail to endeavor to agree on a settlement, there will
be an investigation, and the datu will judge
CONCILIATOR or MEDIATOR when there is conflict with other brgys to prevent war.

10. Datu as LEGISLATOR


Conquest led to the expansion of ECONOMICS which displaced the subsistence economy with
an EXCHANGE economy.
When the power of the datu is consolidated, he can legislate freely to respond to the changes that
brought in new problems (e.g. invasion)
Umalahocan are the mayordomo or stewards who go around town with a bell to announce new
regulations.

CHAPTER 7: Property and Contracts

Underdevelopment of the Law of Property and Contracts:

1. Abundance of resources
a. Since the necessaries of life could be acquired with relative ease, there was little
compulsion to produce and store surpluses.
b. That said, there was little basis for the growth or expansion of commerce, which is the
prime stimulus in the development of property and contract rules.
c. There was no need to spend any gold; they catch the fish they eat, made wine from the
abundant palms, and obtained oil and vinegar from the trees.
d. No one was afflicted with poverty, and they only seek to kill one another considering it a
great triumph to cut off one anothers heads and take captives.
2. Economic organization of the barangay
a. Subsistence economy prevailed, where the household operated on the basis of self-
sufficiency.

5
b. Production was limited to meeting the needs of the household, plus a little surplus to be
traded for the goods which the household could not produce for itself, such as salt in the
case of inland communities, or forest products in the case of the coast dwellers.
c. Since goods were primarily produced for oneself and exchange was only a subsidiary
mode of acquisition, hardly any rules on property and contract developed.
d. Such rules stem from conflicting claims to the same thing asserted by two or more
persons representing antagonistic interests, which are minimal in subsistence societies
because transfers or exchanges were relatively rare.
3. Nature of the exchanges
a. The regular type of exchange involved personal property, mostly consumables which
disappeared after use.
b. Aside from gold and other personal articles, there were few commodities which normally
underwent successive acquisitions by different owners.
c. The exchanges in the barangay were face-to-face transactions completed on the spot.
There were virtually no credit transactions in the ordinary trading activities.
d. Growth in the law of property and contract derives its impetus from transactions involving
future fulfillment. It is the function of property and contract rules to address the natural
insecurity of those who must rely on promises to deliver or to perform. This element was
wanting in pre-conquest society.
e. Trade was conducted on the basis of bater, which was completed right on the spot upon
the exchange of goods or commodities.

Scope of Property:

Property
Used to denote economic goods, but refers more precisely to rights over or in respect to things.
It is purely a creature of law.
In the primitive societies where the hunter or forage consumed what he captured or found, the
rules relative to property rights are confined to simple prohibitions of theft or robbery.
In sedentary societies, we find:
o Economic conditions requiring and bringing about greater complexity in the conception of
property
o Stable household occupying a definite territory for cultivation or other mode of production
o Accumulation of surpluses for exchange
o Trading in goods, both consumable as well as non-consumable
o Varied types of household manufacture, partly for household consumption and partly for
trade
The resulting economic relationships are the matrix for the growth of rules on property.
Barangay society was in the process of transformation, and the stage was being set for the
emergence of property rules:
o Household economy was starting to assume the aspects of entrepreneurial enterprise
o Production of goods was specialized and was oriented to trade or exchange
o Appreciable flow of commerce, both within the country and between riparian communities
and foreign merchants
o Gold and other valuable articles were steadily gaining acceptance as the media of
exchange
o Interest in producers and consumers goods were being developed

6
While the conquest interrupted the commercial evolution of the barangay society, the foundations
of legal development had been laid.
There was clear recognition of property including lands and fisheries.
The classic modes of acquisition in consumables and production of goods were well established;
particularly occupation, inheritance and transfer inter vivos.
Special contracts were recognized, including credit transactions.
There were rules, although rudimentary and scarce, on sale, partnership and loan.

Lands as Property:

The chief objects of private ownership: land, gold, slaves and articles for personal use or
consumption.
In the case of virgin or unoccupied lands, whoever cleared and cultivated it was the recognized
owner and possessor.
The custom was to recognize his occupation as the basis of his title to it; and the land could not
be cultivated or used by another, except on the basis of leave, purchase or inheritance.
In case of boundary disputes between barangays, they resorted to arbitration by the chiefs of
other barangays.
Highly probable that with the establishment of the barangay in a new place or territory, the chief
allocated the arable lands among the various households.
Said lands were the chief source of subsistence and were not sold but passed on to the
descendants of the household head through succession.
In cases of extreme necessity, these lands were disposed of or seized by creditors, leaving the
family without source of support and forcing them to attach themselves to a related household as
alipin.
The lands which they inhabited were divided among the whole barangay, especially the irrigated
portion, and thus each one knew his own.
No one belonging to another barangay would cultivate them unless after purchase or inheritance.
At the time of rice harvest, any individual of any particular barangay, although he may have come
from some other village, if he commences to clear any land, may sow it, and no one can compel
him to abandon it.
There are some villages in which the nobles or maharlikas paid annually to the dato a hundred
gantas of rice. The reason for this was that, at the time of their settlement there, another chief
occupied the lands, which the new chief, upon his arrival, bought with his own gold; and therefore
the members of his barangay paid him for the arable land and he divided it among those whom
he saw fit to reward.

Commerce in Movables:

Growth of commerce
Abundance of resources and fertile land meant production exceeded the needs of the household,
making surpluses in essential commodities available for trade or exchange.
Location of barangays were generally favorable to trade, being on the coast or alongside the
larger rivers and streams.
There are certain articles which a locality, by reason of its geographical situation, could not
produce for itself and which it must obtain from its neighbors.
In a particular island or region, most of the barangays were related by blood, the newer
communities having been usually set up by pioneering families from the older villages.

7
Speaking the common tongue and sharing the same traditions and customs, traders generally
found no barriers as they moved from one barangay to another.

Weights and Measures:

A pair of scales was in general use to measure gold, silver and other precious metals.
For ordinary commodities, such as wax, silk, meat, etc., steelyards were used as standard
weights.
Measures in common use were the caban, ganta and chupa or other equivalents.
For linear measurement, the more common were the arms length, the distance between the tip of
the thumb and the tip of the middle finger fully extended, the width of the hand, etc.

Barter and Sale:

There was an absence of a commonly accepted medium of exchange.


The chief form of trade was by barter.
In more populous regions, a market system was emerging.
Price was usually at a specified weight of gold of a certain fineness.
Price was payable in gold, or other precious articles such as metal bells from China.

Loans:

The practice of lending was widespread and attended of abuses, notably usury and enslavement
of insolvent debtors.
If they lent rice to anyone, one year was allowed for repaying it, since it is something that is
planted. If the loan were not repaid after the first harvest, double the amount was to be paid at the
second; at the third harvest fourfold was due on a unpaid loan, and so on. This was only the
usury among them.
Concerning business loans, repayment was fixed on a date. If he was successful, it was custom
to divide his profits with the lender. In case of financial failure, his obligation was limited to
repayment of the loan, plus the customary interest.
It is usual among the natives to aid one another with money-loans.
If he borrowed the money became insolvent and had no means to pay his debt, he was
considered a slave together with his children who were born during his slavery; those already
born are free.
Reference to bondsmen clearly implies the existence of credit transactions in connection with
loans, generally took the form of sangla.
In the aforementioned transaction, the borrower pledged specific items of property, such as lands
or jewels, turning them over to the borrower of the lender until the loan was repaid.
In case the borrower could not present satisfactory collateral, then a relative or friend stood as
bondsman or surety for him. If the latter was forced to shoulder an unrepaid load, the debtor
rendered services to him.
It might well have been the origin of most of the alipin in barangay society at the time of the
conquest, which the Spaniards considered slaves.

Usury:

Friars considered the collection of interest of any amount was usury and usury was a sin.

8
What to native leaders was a reasonable charge for the use of their property was viewed by friars
a monstrous exaction.
The contracts and negotiations of these natives were generally illegal, each one paying attention
to how he might better his own business and interest.

Partnership:

Required the elements of contribution to a common fund by the parties and sharing in the profits
and losses in proportion to their contributions.
Expenditure for partnership purposes generally bound the partnership, but diversion of
partnership funds to personal purposes, such as gambling or in pursuit of pleasure, rendered the
erring partner personally liable.
When a trader and his goods were seized by residents by a barangay he happened to be passing
through while undertaking partnership business, the partner who remained behind must pay half
of the ransom price demanded for the release of the captured partner.
The system of mandatory ransom did not obligate the partner, upon his release, to either the
partnership or his partner.

CHAPTER 8: Crime and its Punishment

1. Criminal Law in General


- In pre-conquest society, a distinction was made between conduct which was harmful to
the community itself, and conduct which prejudiced only the interest of a particular person
or household.
- Principal features of pre-conquest criminal law.
a. Principal prohibitions were concerned with the values of personal security and
property. Criminal law was secular rather than religious in orientation.
b. Wide distinctions were observed in the imposition of penalty, based on the rank
of the wrong-doer and the rank of the victim.
c. Sanctions were preponderantly in the form of pecuniary fines.
d. In the case of crimes subject to capital punishment, the penalty was the ancient
procedure of self-help.

2. Protection of Secular Values


- Penal law was, and remains an obvious instrument in the repression and punishment of
sinful conduct in society.
- Acts considered by the dominant religion as sins were punished by law as crimes.
- The religious flavor was almost wholly absent from the penal rules.
- Principal subjects of penal rules:
a. Security of the person
b. Special protection provided the principalia
c. Protection of property from theft
3. Distinctions According to Rank
- Custom law reflected a common sentiment that social position conferred special
privileges in this regard, in particular, virtual sanctity of the person and interests of
members of the ruling elite and reduced liability for wrongs committed by them.
- This follows the general pattern in traditional societies, where the aristocracy or the ruling
class received highly flavored treatment under existing law.

9
4. Sanctions and Penalties
- Death was imposed only for crimes which are universally acknowledged to be heinous,
such as murder and in certain places, incest.
- For the rest, the penalty generally consisted of a fine, graduated according to the nature
of the offense, the gravity of the wrong, and the rank of the wrong-doer as well as that of
the offended party.
5. Execution of Sentence
- When the relatives of the offended party were able to hunt down and capture the culprit,
they killed him.
- If he wasnt captured by the relatives but later surrendered or captured by a third party,
he was killed by other chiefs who had intervened in the case.
6. Murder or Homicide
- General rule: he who killed another must himself suffer death.
- Close relationship between the culprit and victim is considered mitigating such that the
lesser penalty of fine, instead of death was imposed.
- Both parties equal rank, the penalty imposed was death subject upon payment of the
corresponding fine.
- One type of homicide considered heinous and usually subject to death penalty: killing
accomplished through witchcraft, or sorcery or similar practices.
7. Offenses Against Chiefs
- Besides killing a chief, it was a capital offense to slander a chief or to utter abusive or
disrespectful language to him, or to enter his dwelling at night without his consent.
8. Theft
- Penalty for theft was graduated according to the rank of the offender and value of the
property stolen.
- 1st theft: penalty was a fine in money.
- 2nd theft: servitude
- For any subsequent offense: death
9. Insult
- Honor and reputation were primary values in pre-conquest society.
- Insult directed at a chief merited enslavement or death penalty.
10. Other offenses
- Adultery is a private wrong.
- The erring wife is not punished; the penalty was imposed only on the man.
- If a man caught his wife and her paramour in the act of adultery, he was
privileged to kill either or both of them without liability.
- Penalty of death could also be imposed where the wronged husband was a chief
or adultery was had with a concubine of a chief.
- Arson was a serious crime.
- Incest was considered a heinous offense and rigorously punished.

CHAPTER 9: Remedies and Procedure


1. Development of judicial system
1. Development of judicial system
- 3 techniques use for settlement of disputes (at time of conquest)
o Mediation and conciliation
o Arbitration
o Formal adjudication

10
- Use of intermediary for transactions among households because:
o Prevents humiliation when one party refuses face-to-face dealings
o It greatly enhanced chances of successful transaction
- Customary to pay intermediary for his efforts
o For disputes: he is entitled to a share in the amount/property recovered
o Principle of compensation or reciprocity
- (In earlier stages) Arbitrator akin to judge while mediator a champion of one party in the
dispute
- (Later on) Datus became judges but still was compensated as before from the
amount/property recovered or the damages to be received
2. Religion and justice
- System of justice in pre-conquest society deeply rooted in religion, magic and myth
- No documentary or other recorded evidence presented, testimony of witnesses main source
of proof
o To assure the truthfulness of the testimonies they undergo an Oath
o Eg. Tatamaan ni bathala ng kidlat lahat ng kamag-anak ko kung magsabi ako ng hindi
totoo (I think eto yung tinutukoy nilang oath)
- Trial by ordeal determines guilt of accused which is rooted in religion
o Assumption: if you are not guilty, the gods will save you from this test
o But accused is always found guilty because of his refusal to undergo the ordeal
(construed as guilt)
3. Oath
- Deities (represented by sun, moon, stars, etc.) will distinguish true from false declarations
under oath and punish those who lied under oath
- Sangla bond or surety for performance which the oath reinforces by invoking the power of
some deity as the guarantor of truth in the transaction
o Eg. May I be eaten by a crocodile of I failed my promise
4. Techniques of settlement
- Preponderant method: mediation and conciliation accompanied by arbitration for disputes
among and within barangays
- For great wrongs, like killing of chief, common friends of the barangays undertook
reconciliation by compensation of offense determined thru the customary schedule
- Arbitration resolves amounts of compensation, if parties cant agree on this
o These are men from another village with reputation of being fair and just
5. Power of adjudication
- Barangays were in different stages of integration/consolidation of political power
- Farthest: chief adjudicates and settles cases brought to him and enforces his decisions
- Not yet complete: datu shared judicial authority with the old man of barangay
- Where ruling of dominant household not consolidated its authority datu is not the judge,
but merely a mediator or arbitrator
o His authority depended on an agreement where parties submit their case for him to
settle or decide
o But here, preponderant method: submit disputes to old men of barangay to be settled
6. Procedure in contested cases
- Trial will happen when: suit has been instituted but issue not settled despite efforts at
conciliation or mediation
o Testimony and declarations from both sides presented
o Outcome depends on number of witnesses presented

11
Equal number: difference in claim and counterclaim is split
o Sentence: observed and executed without delay
If losing party refused to comply, winning party + judge will enforce judgment,
seized property = amount of award
o Judgement proceed: divided to 3 parts
Chief or judge
Witnesses of winning party
Successful party
Witnesses of losing party receive nothing
- If chief doesnt have full authority of a true judge, he exact oath from each party that they
submit to and accept his judgement
7. Determination of guilt by ordeal or magic
- Earlier and less rational procedures in connection to theft
- Trial by ordeal
o Accused ordered to get a bundle where stolen item is possible to be hidden, bundles
commingled, opened and item was there, returned to owner, case closed
o If opened and item was not there, guilt of parties to be determined:
Accused thrown off in deepest part of river with weights on them, whoever
came out first is the criminal
Refusal to take out a stone in a vessel of boiling water means guilt
Candles were given to accused and whichever candle goes out first is the
guilty party
8. Composition
- Fine paid to aggrieved party, gold or jewels
- Agreement by parties to fix amount and manner of payment
- If parties cant agree, offended party asks aid of datu to adjudicate
- Offenses subject to vengeance had to be settled by composition under certain conditions
o Vengeance by relatives not exacted within a certain period, offended party to accept
fine
o Chiefs act as arbiters to reconcile dispute

Agabin Chapter 1: Indigenous Legal Culture

Who are the Indigenous People__________________________________________________


Indigenes
- indigenous people
- refers to a group of people or homogenous societies identified by
o self ascription and ascription by others
o who have continuously lived as organized community on a communal territory
o possessed and utilized resources of that territory since time immemorial and
o sharing common bonds of language, customs
o who have become historically differentiated from the majority of Filipinos through resistance
- In short: non Christians, live in less accessible areas, retain system of self government, follow a
different way of life from the rest of the Filipinos

Concept of Legal Culture______________________________________________________


According to Adamson Hoebel:

12
- Difference between animal societies and human societies is that animals are instinctual while human
behaviour is learned.
- CULTURE integrated sum of learned behaviour patterns which are manifested and share by
members of societies

Ancient Legal Culture of the Primitive


-started with the unknown which are the terrible acts and fortuitous events caused by supernatural
beings o forces of nature.
-Constant fear of being struck by lightning, etc gave rise to offerings and rituals that became a habit.
After a while, it became customs. And custom became tradition.

-When primitive man began use his brain and began to reason, analyze and distinguish, the development
of legal system began. Why go to war against the whole tribe when you can just kill your only enemy?
-Instead of lex talionis, they asked for an equivalent compensation instead.
Damages compensation for death or injuries

-From Ifugaos POV imposition and sanction is sufficient enough to make reparation for the wrong done
to preserve peace and harmony within the society.
-These Ifugao proceedings required advisors and mediators
-Existence of mediator represented the first step in the development of judicial institutions.
-Headhunting- caused by the wish to avenge
Reconciliation through religious rituals with the help of a middle man led to a custom of peace pacts
between tribes.

Negritos POV compensation had to be given a religious shroud to make it acceptable through
reconcialiation by making sacrifices to a spirit named Manglobar as proposed by a middleman

Evolution of Customs into Law: Stone Age to Agriculture____________________________


Elements of Legal system
1. Norms
2. regularity of enforecement
3. judgement mechanisms
4. enforcement
According to PV Fernandez there must be 2 criteria
1. must be a rule of general character prescribing a soecific norm of conduct
2. sanction imposed by community
a. Positive Sanctions range from pat on back to posthumous enshrinement
b. Negative Sanctions range from raise eyebrows to social ostracism to execution
-When more effective tools were invented, the animals became scarce. They thought of an easier
technique, thus custom of trapping was born and the theory of acquiring property by capture of animals
and humans was applied by virtue of labor as a mode of acquiring property.
-Stone age people realized that captured animals can be domesticated so they just bred them instead of
laying traps often. This led our nomadic ancestors to settle down in one place and become
agriculturists.This practice further led to development of law on property: offspring of animals they own
are also their property

Notions of Property___________________________________________________________

13
1. Occupancy first gave right to an exclusive but temporary enjoyment, and that afterwards, this rights
remained exclusive but became perpetual.
-right to possession is coextensive with his power to keep it
-In Philippines,there were already notions of property rights such as usufruct, tenancy, lease and
assignment of rights
Ownership right to use land. Id one ceases to work, he would lose his claim to ownership bevause the
pland is owned by spirits guarding the land and people are secondary owners or stewards of the land
only.Hereditary succession onheritance to property (ex. Children taking over the cultivation of land after
the death of possessor)

2. Discovery Ex. Ehen a ember of tribe spotted but couldnt reach a beehive on a tree, he can just plant
a twig on the ground pointing to the beehive to lay claim on it

Social Status and Organization__________________________________________________


Nomadic people settled down, families increased in a clan, clan became barangay, barangay evolved in
chiefdoms therefore government became a necessity.
Barangay composed of 30-100 families bound by kinship, governed by a datu
Datu leader, legislator, arbitrator
Chiefdoms loose confederations f chiefs bound by loose ties of personal allegiance to their senior
Primus inter pares called pangulo (leader), kapunoan (most sovereign) , makaporos nga
pangulo (unifying chief)
Basis of power of datu: 1. wealth 2. Number of slaves and subjects 3. reputation for
physical prowess and leadership
Utang either contracated through debt of money at a high rate of interest or debt of gratitude arising
from the datus acts of protection and sharing wealth

Personal and Family Law______________________________________________________


Marriage contracts between families usually made at the young age of the bride and groom
Polygamy tolerated as long as he can afford to support them
Divorce and separation liberal , for incompatibility, neglect or misconduct
Succession legitimate children inherit equally but illegitimate children only inherit from actual parents or
if the legal heirs allow them
- spouses cannot inherit from each other

Foreign Influence in the Formation of Law in the Days of the Barangay__________________


2 important influences:
1. China through trade, obligations and contracts were known and practiced by them
a. concept of credit took place after the exchange of goods and promise to pay the same after a 9 month
waiting period
b. system of weights and measures used in trading
2. India (did not discuss any Indian influences)

Indigenes Concept of Law of Nature_____________________________________________


Among Visayans, law was considered part of the customs and traditions which were considered
reflections of the natural order of things parallel to Roman Law
Kabtangan customs
Kahimtang nature or condition
Social classes were stratified according to status

14
Alagag natural awe of young people to seniors
Hilas reluctance to contradict parents or superiors
Naga hilas ancestor spirit to keep a disrespectful child awake with guilt
Batas degree regulating commerce
Batas-batas tariffs

Penal Law and Procedure _____________________________________________________


Common crimes theft, murder, defamation, withcraft, offenses against the dau and his family, malicious
vandalism
Principal features of Penal Law according to Fernandez:
1. principal prohibitions were concerned with personal security and property
2. wide distinctions in imposition of penalties based on rank of wrongdoer and victim
3. sanctions were in the form of fines
4. for crimes subject to capital punishment, ancient procedure of self help (vengeance) is resorted to
Procedures for the determination of guilt:
1. trial by ordeal
2. public trial
3. trial by combat

Adat of the Lumads___________________________________________________________


Adat unwritten law on proper conduct, right action and procedure
- more sophisticated method of conciliating and mediating between the parties
- Right conduct is not rational but metaphorical in that its contents are formulated in sayings, proverbs
and poems
- a legal system that is an offshoot of their history and environment

Custom Law of the Hispanized Filipinos_________________________________________


Vernon Palmers concept of penetration, merger and interaction of laws refers to the extent by which one
system of law is received and accepted by another

Penetration of Western law into custom law has been shaped by cultural factors such as values, beliefs,
language, social structure, ideology and other forms of behaviour. The pattern of penetration differs from
one place to another according to the degree of urbanization or material culture of the area. The clash of
cultures resulted in the confusion of what law to follow. Gunmar Myrdal branded Ph as a soft state.
Soft state- central government is unable to truly impose the rule of law uniformly

Ex. Rural barangay officials allowed out of court settlements, even for serious crimes, which is prohibited
by the Local Government Code and RPC.
Offenses were also ranked depending on the importance if defending and upholding ones honor.
Defense of ones honor includes providing for ones family, upholding the reputation, defending physical
integrity and acting according to ones position in life.
Compensation depends on values held by members of the community involving factors like social
status, land ownership, religious affiliation and nature of injury.

MANUEL, The Evolution of the Concept of Property and Land Ownership Among the Manuvu of Central
Mindanao

Introduction:

15
The Manuvu
Dallag plateau
o situated on the divide splitting Davao City and Cotabato
o it is at the east central part of the territory occupied by the Manuvu people (who in pre-
WWII years were in possession of this vast territory occupying southeastern Bukidnon
and Northeastern Cotabato and western Davao)
o Their neighbors are the Matigsalug to the northeast, the Bukidnon or Talaandig to the
northwest, the Ilianon to the west, the Bilaan and Tahavawa to the south and the Jangan
or Attaw to the southeast
o The Manuvu habitat in 1956 was mainly forested, grassland, and clearings or two-thirds
virgin forest.
They were slash-and-burn agriculturists mainly (in 1956) and they still practiced food gathering
activities which may be considered supplementary ways to the production of the staples they
relished.
Many of them were trappers, hunters and fishermen; some weavers and small-scale traders.
The largest trading and market center then was Calinan, a municipal district of Davao City, where
manufactured goods, canned food, tools, salted fish, cloth and ready-made clothing were
available.
The Manuvus main staples were corn and sweet potato; rice was produced but the grain was not
enough to last them three months after harvest and they had to depend mainly on corn and sweet
potato the rest of the year.
They did not have knowledge of the plow originally, though they could buy plows in Calinan.
Carabaos and horses were used in their trading activities, in the raising of the bridewealth and in
the payment of damages in the settlement of wrongs and delicts.
The Manuvus were using barkcloth from time immemorial until the middle of the 19th century
when weaving was introduced, and so also blacksmithing.
Gongs also began to be used about this time. The now and arrow, blow-gun, shield, spear and
shot or long blades became their main arms of defense and offense.
They had tree-houses or built a kuta under the house in times of feuding or little wars.
th
Before the 20 century, the Manuvus settled their disputes mainly by retaliation; in other words,
the rule that demands an eye for an eye, a tooth for a tooth.
After trade goods were acquired, the law of retaliation or the spear was replaced slowly by the
law of damages, though the old way was still practiced up to recent times.
The Manuvus progressed towards a settled way of existence from a nomadic to a semi-nomadic,
th
and then eventually to a village life by the 20 century.
th
Villages were governed by old men in the 19 century, later developing leaders or bayanis who
th
became recognized in their respective areas of influence; the datus evolved in the 20 century.
It became characteristic of the village government to develop a multi-datu system, each village
having two or three or more datus depending on the size of the population.
Traders became effective datus because of the accumulation of wealth as their influence
facilitated the settlement of disputes.

The great art of Manuvu people became consolidated into a tribal organization after the recent
war when Datu Duyan succeeded in gaining recognition through his knowledge and experience
gained during the prewar and occupation years, his benevolent policies, and connections with
some governmental officials.

16
Origin of the Concept of Property and Its Development:

The earliest manifestation of the concept of property may be found in the language, for every
language has a pronominal system, which in turn has terminologies indicating possession:
o Kaddi my, mine
o Kekaw your, yours
o Kandan their, theirs
Since language goes to the very origin of culture, this linguistic evidence is of primal import in
tracing the origin of the concept of property (material or non material) as something that can be
possessed.
Antecedent to agriculture was food gathering. An aspect of which was foraging, that is gathering
from the environment food supplies, like picking nuts and fruits with the bare hands, cathging
grubs, insects, and fish, and picking from the bush birds eggs or young, and beehive hauling.
The latter two may be used to illustrate early conceptions of property among the Manuvu. For
example, when a boy locates a nest up a tall tree, his first move is to show to the outside world
the fact of his discovery by:
o Cleaning the trees surrounding area or cutting a branch and sticking it to the ground with
the end pointing to the nest (called tuwos in Manuvu language which indicates discovery
and the prior claim to the ownership of the eggs or birdies)
o During his absence as he goes home and older people are fetched to bring down the
eggs or birdies, any person who ignores the sign below the tree and brings down the
birdies or eggs, is by custom law, guilty of theft
From the time the tree is marked and the eggs or birdies are taken down, there is no actual
possession, only potential possession; but even so, ownership attaches right away, for anyone
other than the discoverer to take away the eggs or birdies is a thing and the wrong done has a
sanction, the payment of damages.
o Case 1 Panakaw (theft) is committed when a marked beehive is hauled down;
inferentially, ownership attaches to beehive the moment it is marked by the discoverer;
and damages are demandable against person who haul it down. A person caught
another in the act of taking his potential property can kill the latter. The right of
ownership to the beehive lapses after the day following its discovery; this lapse of the
right gives other the opportunity to haul down the beehive. It is the hauling down of the
hive by its discoverer that perfects his right of ownership; in the meantime that two days
have not lapsed he has an inchoate right to the beehive. The beehive is smoked out of its
bees, hence, a torch is necessary which needs a fire-maker. Every Manuvu man before
the introduction of matches carried with him a titikom, a fire-maker make of flint and a
piece of iron, and tinder, all of which are kept dry in a water-proof basket container. This
is one of the most valuable possession of the Manuvu man and is dearly prized.
o Case 2 Taking the fish from the trap (like buvu and daliang) and removing the latter to
another place is theft; two fishermen settle the case between themselves without
bloodshed; a gong is offered by the thief and this was acceptable reparation. In Manuvu
Law, anything that a man makes belongs to him. The by-product of any artifact belongs
to the owner of the latter.
o Case 3 Hunting dog killed by a trap (batik, regarded as property of its maker and so
also any animal it catches): owner demands compensation, which is given right away
plus the performance of a ritual so that hunter would be favored by the deity of wild
animals once more; greater panavuk (damages) demandable if the presence of traps
were not announced; religion and law. The articles they made for defense or offense

17
such as bows and arrows, spears, shields, blowguns, or sharpened bamboo sticks also
become property. The charms and bandoliers they perfected were a special kind of
property. Some of these charmstones were used by warriors and hence they were
regarded as priceless possessions.

Land Ownership among the Manuvu:

In a state of nomadism, land ownership can develop only in the sense that agricultural peoples
have concepts about land. They do not claim ownership over particular areas they have covered
from year to year or from season to another.
Some element of ownership is obviously lacking, or wanting, and this is possession. In other
words, the control over the articles must be complete, that is, exclusive of anybody elses control.
In nomadism of their ancestors, they moved about in circles occupying one place at a time then
giving back to the old places to clear the area once more and plant. When the yield became
minimal or poor, they moved to another old place again. No other group was supposed to occupy
the Manuvu old spots and places. Upon their return, should there be such other band or group,
this was considered an intrusion.
Because of feuding proclivities of the Manuvu in their law system, there developed among them
warriors, some with distinction to become bahani (a cognate of the Tagalog term bayani).
Husbands came from the outside communities or ethnic groups; they were total strangers to the
band or village. This leads to adding male population to the band.
The apus or old men were the ones who assigned plots or fields to till or area to open while in
residence which may be for the duration of the lives of their parents-in-law. So, as the settlements
grew into villages, this was the pattern of land assignment for the reason that the settlement or
village (ingod) became owned by the band or inhabitants (gangaingoddan).
As villagers grew in population, inter-village relationship was unavoidable. According to datus and
old inhabitants, inter-village law did not allow the trespass over the village territory. For example:
o If a citizen from another village ever attempted to cut rattan from the side of the other
village, his bolo could be confiscated by any villager of the latter
o A hunter who chased a deer across the stream-boundary incurred trespass, but if he had
already disabled the animal which crossed the stream and this animal was speared to
death by another man in the other side, the carcass was divided equally between the two
hunters
As the old men came to be called datus in the 2nd half of the century, and as the villages grew in
population, the village set-up developed an authority system that was characterized by a number
of datus exercising authority over the village this is called multidatu system. It is now the datus
who allotted lands to foreigners, those who came from the other villages or ethnic groups.
Another way of acquiring exclusive ownership of a small portion of land by public declaration is
called la:w in the custom law. There were villages who made canals and built dams across the
shallower streams to divert the water into a side hole to convert the same into some kind of
fishpond. Such artificial body of water became exclusive to the builder to use, and this was done
by open public declaration. Betelnut trees (and dye-yielding trees) are pointed to as landmarks of
land ownership, for these trees are pointed to as landmarks of land ownership because they may
grow up to fifty years. Some Manuvu would point to the graves of their ancestors as evidence of
land ownership, the landgrabbers not even aware of their existence.
o Case 4 Datu takes a band of bananas from an old field or kamot belonging to another
villager during famine; in the custom law this act is theft, but apparently owner didnt

18
demand damages; instead he gave tapuk ta langossa because the thiefs calf was
pierced by a trap missile and blood had been spilled.

Classification of Manuvu Property and Observations:

The following are considered property:


1. Everything that a Manuvu gathers or catches from the ground, grass, plants, trees, waters and so
on
2. Everything that he catches with devices such as traps, hunting gears such as by using bow and
arrow, spear, blowgun, etc.
3. Anything that he makes or manufactures
4. Anything that he makes or manufactures
5. Animal that he raises, though this is limited to the dog, cat, and chicken; the puppies and kittens
soon get portioned among relatives or friends
6. Portions of a stream may be owned by la:w and this property can be passed on to heirs;
exclusive hunting rights may be so declared and such declaration is recognized by other villages
7. Land can also be owned by occupancy in pioneer areas or by assignment by the old men of the
band or village, and by datus later
8. Anything that is received as gift:
a. A husband wishing to take a 2nd wife is likely to court his first wife with gifts to obtain her
permission.
b. When people want favors, they give gifts.
c. Irritation, injured feelings, are placated with gifts.
9. Anything acquired by exchange or barter
10. Articles and animals acquired by trading were valuable property
11. Seizure of property is recognized in the custom law
12. More serious is dakop (the equivalent to Tagalog dakip), where for indebtedness a person in the
household may be seized for failure to live up to a contract; sometimes the person so seized is
made to work, but the intention is to hasten payment
13. Person captured in little wars or seized during raids became property the practiced slavery:
a. Slaves were made to work.
b. The good ones were made husbands and wives.
c. The ugly ones were sacrificed in their ceremonies.
14. Anything that a person acquires for services done
15. Damages are sources of wealth
16. Some properties acquired in a special way may not be sold or used in certain ways
17. Properties acquired by inheritance involve all kinds of properties

The Manuvu concept of property came from the general belief that all things came from Manama,
the Manuvu supreme god. While the fish and wild animals remain in their habitat, they belong to
god and his caretakers (diwatas); but the moment they are caught, they belong to man. When he
hunts, he prays to Timbaong to give him good luck. When the wife has difficulties giving birth,
prayers or rituals are made to the goddess Kairang.
Three terms considered development markers in the evolution of the concept of property among
the Manuvu:
o Impon articles that are worn on the body
o Butang household articles

19
o Tamuk includes abaca cloth, jewelry such as the kamai, gongs, animals such as the
horse and carabao, and others
In the family there is separation of property between husband and wife. At marriage the
bridewealth was distributed among her parents and closer relatives; and whatever she acquired
during marriage she usually passed it on to her parents.
The wealth, however, that the father accumulated during his life was either divided equally
amongst his children and wife, or the bulk was endowed to his first born son (this is pusaka).
With land, the pervading concept is divine ownership, proceeding to kin group ownership when
bands roamed the countryside. Upon permanent settlement became the patter, corporate
ownership became the rule, and from their individual or family ownership.

II. INTRODUCTION TO ISLAMIC LAW


AGABIN
CHAPTER 2: The Advent of Islam

Penetration of Islamic Law


- The Muslim culture is discernible in all of the areas touched by Islam:
(1) The local dialect, Malay, the language of royalty and commerce
(2) The centralized form of government that took the form of sultanates and chiefdoms, achieved
through peace pacts or through marriages of convenience among the ruling families. In the
chiefdom, there was a primus inter pares, a paramount chief who came from the most
prominent or wealthiest family, or who had gained renown for his victories in warfare, but
enjoyed neither monopoly of force nor taxing powers.
(3) Raids against other tribes or neighboring trade using a warship called karakoo, either to
avenge the death of a chief, seize slaves or booty for sale, or to enforce alliances for trade
(4) Superficial penetration in Luzon, limited to the proscription against eating pork, since
missionary activity in Southeast Asia was conducted only by merchants and itinerant Sufi
holy men
Nature of Sharia or Islamic Law
- code of life which rejects the separation of church and state
Historical Background of Muslim Law
1st Period: When the prophet Muhammad was alive and his sayings (Hadith) were compiled
2nd Period: Abu Bakr, his close companion, was chosen to lead the Muslims and united the
rebellious Arab chieftains by force of arms. They took into account the customs and usages of the
various communities that were conquered.
3rd Period: The learned men spread to the various parts of the empire, founding schools. The
community split into the Omnayad and the Abbasid caliphates.
4th Period: Development of Muslim law was led by the great jurists of the Sunni school. The
Abbasid caliphate agreed to a form of SOP: while it would exercise military and political
leadership, it transferred religious authority to the Islamic experts, the ulema, who developed
Sharia into a coherent body of law. They consulted (1) the Koran, (2) the words and deeds of
Muhammad, (3) the conduct of men associated with the Prophet, (4) the use of analogy, or (5)
the consensus of the faithful.
5th Period: The period of jurists who followed the view of the original founders
6th Period: The age of commentators who followed various schools of thought
7th Period: Starts from the abolition of the caliphate in Turkey when Sunni Islam was left with no
recognized head and various countries replaced the Sharia with secular laws in an attempt to
adapt Islam to modern conditions

20
Sharia and Customary Law
Four Foundations of Islamic Law / the roots of law
(1) Koran, the Holy Scripture
(2) Sunnah, the actual practices of the Prophet
(3) Ijma, the consensus of the scholars,
(4) Qiyas, analogical reasoning
Doctrine of simple acceptance - Acceptance of different schools of thought--from various groups
of scholars in different parts of the world and the custom law of the conquered territories--into
holy orthodoxy
Adat - Custom law of the Muslims on PFR, focused on communitarian values
Agama court - religious tribunal presided in theory by the sultan but in practice convoked be a
deputy, the kazi.
They emphasize crimes against chastity. Living-in arrangements was punishable as a crime.
Reproduction is the main object in marriage. Polygamy is allowed because many husbands died
in the battles against infidels, and only under certain conditions: (1) equal companionship and
treatment must be given to each wife, (2) maximum of four wives, (3) only when the wife is
barren, incapable of copulation or if she commits adultery.
Grounds for absolute divorce: (1) incompatibility, (2) infidelity, (3) impotence, (4) forcing the wife
into prostitution, (5) habitual drunkenness, (6) physical violence against the wife, (7)
abandonment
The strict moral standards laid down by Islamic law moderated and tempered the frank, robust,
and wide open attitude towards sex and morals of the pre-Islamic Filipinos.
Penalty imposed on the perpetrator is based on the social status of the complainant.
Muslims divide mankind into two: believers and unbelievers
The Korans protection of human rights are anchored not on individual liberty but on INDIVIDUAL
DUTY geared to the welfare of the community and to enrichment of his communal life.
The Tortuous Path of Sharia
- The implementation of Sharia suffered a setback with the colonization of the country by the
Spaniards and the Americans. The Spaniards aimed to Christianize the country, whereas for the
Americans this meant Protestant evangelization. Although the Americans at first professed
religious freedom, this was later reversed favor of integration. It was only after we gained
independence and under Marcos that the Islamic law was decreed into law, bringing us the dual
legalism we have today.

MASTURA
Harmonization of Adat Law vis-a-vis Western Law Within a Single Polity

1. Intro
Harmonization of adat laws and Western law poses contradictions and confusion
What is adat law? ADAT is..
A right action
An important source of law
Corresponds to the idea of the English custom which are spoken for as having the force
of communal sanction
CUSTOMARY LAW
2. Adat as statements of law
Adat is stated in the proposition WHAT OUGHT TO BE THE LAW in a given case (personal
laws).

21
PD 1083: Code of Muslim Personal Laws of the PH came from adat or customary law.
Here, the cycle of jurisprudence runs full circle with the courts as the means. The rest of
reasonableness of adat laws ends with the courts similar to Anglo-American common law.
3. Conflict of laws situation
Adat laws are NOT law declarations.
Harmonization of personal laws and the general law primarily hinges on legal pluralism.
e.g. Indonesia, Malaysia, Singapore, and Sri Lanka developed legal dualism.
FRAMEWORK for COMPARISON (Dutch experience in Indonesia):
Princple of Equalization of Levels was applied -- adjusting the contents of the colonial
laws with the laws then enforceable.
Legal pluralism resulted to a Trichotomy Rules of Decision in civil cases
First, custom and usage established as having the force of law
Second, religious civil laws as verified in written sources
Third, laws of general application enforced by the govt
The PH has the least experience in dealing with legal pluralism -- the closest consideration of
moral precepts is the EQUITY rule in judicial decisions.
Though the Civil Code has not closed the legal system to adat.
4. Codification or digest
Two important points:
A policy decision was reached to decree and recognize the Muslim legal system as part
of the law of the land, and to codify Muslim personal laws ---> led to Sharia Rules of
Procedure
Restatement of case law to provide adat an adendum form (S.C will lay down its ratio
decidendi)
Civil Code is SUPPLETORY to PD 1083.
Jurisprudence (case law) on the provisions of the Civil Code reveals that customs, whether
Muslims or other tribal Filipinos, have not been exercised by the courts to any great degree.
5. Comparative law studies
Different studies on adat show the ff:
Customary law forms are characteristically family law in nature
Religion (ritual) and customary law appear complementary in establishing jural
relationship
There exists a similarity of range of meanings of the term adat or custom (re: property,
inheritance, and procedure)
Customary land tenure is tied to the lineage and kinship system.
6. Summary
Modern legal systems are susceptible to legal pluralism.
In the PH, the incorporation of adat law into the dynamics of the judicial process is underway.

KOESNOE
FROM FOLK LAW TOWARDS JURISTS LAW

History
Folk law or Adat law in Indonesia has been operating since pre-colonial times as the positive law
of indigenous Indonesians.

22
Jalaludin, 163 A.D.: He mentioned that Adat law was one of the prevailing laws in the kingdom
taken into consideration by judges in settling disputes brought before them. He was of the
opinion that Adat and Adat law in the country are laws that should not be set aside in everyday
life because they are part of life itself. He argued that the Islamic law gave provision for the
application of Adat and Ada law of the country as long as they are not contrary to Islamic law.
Colonial times: status of Adat law as positive law began as a point of criticism.
1928: status as positive law under the national legal order has been settled and officially
recognized as equal to the laws originating from the West such as the codified Dutch laws.

Adat law as folk law (differentiated from Western codified law)


Unwritten law without a specialized body for law making nor pre-existing substantive rules to
follow for practice
Viewed by community members as a set of classifications of everyday conduct; said
classification is not rational but metaphorical statements such as sayings, proverbs and poems.

Structure of Adat law


Toor Haar, 1937: Adat law can only be identified in the decisions of the Adat functionaries in
or outside disputes in close relation with the existing structure bindings and values prevailing in
the community. These said decisions represent only the outskirts of Adat law.
In Adat law, decisions do not stand alone. They are within a structural relationship with other
elements of the law and the values prevailing in the community.
Starting point is the cosmic point of view about human life and the universe. Human life, social
and individual, must always be in harmony with the universe. For this end, man has to live in
conformity with the teachings of nature symbolized by examples of events governed by nature.
The natural events are thereby seen in the Adat as the ultimate, true Adat referred to in folk
theory as Adat Sabena Adat (literal meaning: the Adat of the Adats).
The elaboration where man may have the benefit of finding forms and ways in controlling their
social life in harmony with the universe is the successive Adat (Adat Pusaka Usang).
In the folk concept, this Adat consists of three categories:
o Adat Istiadat (constitutional) covers the sphere of theories, teachings, reflections on
nature and natural events in connection with human life; explained through poems,
sayings, proverbs and the like, giving the ideal picture and the ways in life based on the
teachings of nature
o Adat nan Teradat (institutional) gives accommodations to the sets of human social
conduct in the community; expressed in the sets of Adat institutions called in the folk
terminology the limbago.
o Adat nan Diadatkan (realizational) the concrete and reasonable form of Adat resulting
from the art of knowing the characteristics of the metaphors.
How Adat functionaries translated metaphors into forms and formulations
which will meet the needs in controlling human social conducts:

23
1. The person or functionary concerned must have a noble and reliable
personality, which is obtained only through the fostering of the
feeling of embarrassment (malu: Indonesian) in the individual.
2. The functionary concerned should have a broad experience in
dealing with the Adat in his community. This can only be obtained
by acting for a reasonable time as assistant of the Adat elders in his
community when dealing with concrete Adat cases through
observation, listening and doing.
3. They are guided by operational principles such as the principle of
peaceful social life (kerukanan), principle of properness (kapatutan)
and the principle of harmony in the community (kalarasan). In these
basic principles we discover some detailed principles, namely, the
principle giving meaning to the place, time and situation of the case
(desa, kala, patra: Bali) and the principle of suitability in view of the
stature of the person concerned (empan papan: Javanese), etc.
The main characteristics of the structure of the Adat law in the folksphere are:
o No preexisting substantive rules; the functionaries are guided only the structure and
structural bindings of Adat law.
o The purpose of dispute settlement is to restore the good relations, peace and harmony
between the parties concerned and the community as well. Their decisions must be
exhaustive (tuntas: Javanese).
o The functionaries are fully responsible for rendering a just decision with all their
personalities as guarantee. The finding and giving decision in concrete cases is seen as a
real creative work and is called to give the Gestaltung to the Adat.
o A decision of the functionaries does not imply the discovery and formulation of a certain
substantive rule.
During the pre-war period, State Courts consulted Adat elders in finding the underlying Adat law
governing the problem brought before them, and was subsequently made the legal base for the
Courts decision. Every initiative to support the faith the Courts put in the unwritten substantive
rules of Adat law was encouraged, taking the form of field studies in different parts of Indonesia
and the collection and inventories of Court decisions and their critical studies. The study of Adat
law reached its culmination in the very influential work of Ter Haar.
To summarize:
Folksphere State Court
Structure is composed of the three categories of Adat law was seen as a system of unwritten rules
Adat, consisting of metaphorical typologies and that still needed to be discovered and clarified.
explanations.
Functionaries accomplish a very active creative The idea of applying pre-existing substantive
role in transforming the metaphorical and rules of Adat law was predominant. The Courts
imaginative typologies and expression into a started to discover the still unwritten legal rule,
concrete and reasonable Adat by making use of then applied it through the method of
the Gestaltungslebre. interpretation of legal rules.

24
The work conducted by the functionaries is a real The functionaries were, in principle, subjected to
creative work which requires a high and noble the substantive rules in Adat law. Consequently,
personality with high intellectual and broad they had to respect the rule concerned in their
experience in life, sound knowledge of Adat in practices.
their community and a good view of life.
Each decision applied only to that particular case. Similar cases are to be dealt with in similar ways
Similar cases may be decided differently. Every or constant jurisprudentia (constant court
case possesses its own individuality. decisions).
Final goal of dispute settlement is to restore Final goal of settling disputes is to apply the
harmony and peace between the parties and correct law and realize justice. Hence, every
within the community as well. Court decision only gives answers to claims
forwarded by the parties based on the provision
of the law governing the problem.

HOLBROOK
LEGAL HYBRIDITY IN THE PHILIPPINES: LESSONS IN LEGAL PLURALISM FROM MINDANAO AND
SULU ARCHIPELAGO

Legal Pluralism
- Normative obligations do not always follow political boundaries
- Scholars of legal pluralism have grappled for some time with the nature of ethnic and cultural
associations at the subnational and supranational levels to find a normative balance between
territorial sovereignty, liberal right, and community self-determination.
- People belong to coexistent association with overlapping norms.
- Formal and informal associations based on politics, ethnicity, religion, geography, business,
trade, and common interest constitute norm-generating communities which may instill
behavioral allegiances.
- These communities generate practices and procedures that seek to advance common goals.
- Legal pluralism seeks to provide a framework for managing the hybridity of competing and
overlapping norms.
- Neither possible nor, in many situations, even desirable to solve legal hybridity by the hostile
occupation of one normative scheme over another.
- Legal pluralism seeks to encourage the creation of mechanisms that manage normative conflict.
- Occasions may exist in which national norms prevent countenancing subnational or supranational
norms which are fundamentally in conflict, as in the use of peyote in religious ceremonies, the
right to develop and maintain nuclear arsenals, tolerance of racially motivated hate speech, or the
subjection of national citizenry to international criminal jurisdiction.
- In these cases, territorial sovereigntists may reject hybridity because the firm and coersive
assertion of state power is seen as the only means of securing essential state interest.
- Pluralism recognizes the inevitability of hybridity.
- Pluralism allows competing norms to share the same social space through structure settlements.
- The management of hybridity may invite competitors to critically examine both the source of and
the expression of their own normative obligations.

History of Muslim Law in the Philippines

25
Arrival of Islam in the Philippines
- Islam spread through the southern Philippines through trade and marriage rather than conquest,
mering almost organically with existing customary law.
- Prior to the coming of islam
- Bangsa (barangay)
- Bangsa chieftains (datus) held certain rights in land on the basis of ancestral association
and exercised local and provincial authority.
- With the arrival of islam,
- Principle sultanates functioned like mini-states
- Governments possess both administrative and judicial powers.
- Agama courts applied Moro customary law (adat), as well as sharia law.
- Every community is welcome to adopt its own personal law.
- Islam taught the modern world the real difference between the law of the land and the personal
law
- Precolonial muslims possessed the right to divorce, remarry, ad share conjugal earning and child
custody when separated.
- The North was predominantly Christian.
Colonialism, Conflict and Customary Law
- When the spaniards came, the Muslims fought back.
- Muslims were driven down to Mindanao.
- Christianization accompanied colonization.
- 300 years of Spanish colonization created the fire from which a common Moro identity was
forged.
- Muslim Problem is the result of centuries-old inquities and misunderstanding cause by Western
colonization.
- Moros in the South were able to resist significant Spanish encroachments
- The Muslims of the Southern Philippines still retained considerable religious and political
independence.
- The United States initially adopted a policy of legal hybridity in the southern Philippines.
- Formal treaty in 1899 with the sultan of sulu the Americans promised not to interfere in
Sulu religion, law, and commerce in exchange of the sultans acknowledgment of
United States sovereignty.
- Moroland = Muslim South
- 1935 Constitution
- No recognition of Muslim laws
- Marriage = tolerance not recognition because theres a 20 year window.
- Non recognition lead to armed conflict which culminated in a massacre.
- MNLF was born
- Martial law to address the conflict
Tripoli Agreement
Reforms:
- Extension of the the law recognizing marriages performed in accordance with Muslim
rites.
- Creation of a Presidential Task Force for the Reconstruction and Development of
Mindanao, which was tasked with drafting a code of Muslim Filipino Law.
- The MNLF realized that Marcos had no real intention of granting the Regional Autonomous
Government the autonomy promised in the accord.
- Sporadic fighting continued.

26
- MILF was born.

Presidential Decree 1083


- Covers 6 substantial legal areas:
1. Marriage, divorce, and parental authority
2. Wills and estates
3. Establishment and structure of sharia courts
4. Muslim holidays
5. Transfer of real and personal property
6. Conversion to islam.
- 3 general objectives:
a. Recognized the legal system of the Mulsims in the Philippines as part of the law of the
land
b. Codifies Muslim personal laws
c. Provide for an effective administration and enforcement of Muslim personal law among
Muslims
- Sharia courts may consider other Muslim law not embodied in PD 1083
- Sharis courts will draw from the standard work of Islamic jurisprudence

Jurisdiction:
- Personal jurisdiction
- Exclusive jurisdiction
Purpose of mandatory jurisdiction: to prevent forum-shopping
Conflicts:
- Marriage: polygamy and divorce
- When in conflict, PD 1083 will apply
- PD 1083 specifically provides a religious based exemption to prosecution under the
criminal code.
- Significance: recognize the competing normative values held by Muslim Filipinos.
Sharia Court System
- 51 circuit (lower) courts and 5 district (upper) courts.
- The circuit courts have limited subject matter jurisdiction: marriage, divorce, and disposition of
communal property.
- District court judges must also be a member of IBP and learned in Islamic law and jurisprudence.
- Circuit court judges need not be a member of IBP but must be a natural born citizen, at least 25
years, and passed an examination in the Sharia and Islamic jurisprudence (fiqh)
- MILF continued to actively oppose the Philippine governments assertion of authority.
- Sharia courts = fake Islamic court
- MILF has been accused of bypassing the sharis acourts and applying their own version of
Islamic law, including capital punishment.
- Problem of sharia judges: safety

The Autonomous Region in Muslim Mindanao


- Sen. Benigno Aquino was the first to inform the PH Senate about the Jabidah Massacre
- Met with the MNLF leadership in Damascus
- People Power Coup
- Kindled the hopes of filipino muslims
- Creation of an autonomous Muslim region.

27
- Article X of the 1987 Constitution.
- Philippine Congress to enact an organic act that
a. Defined the structure of the autonomous regions executive and legislative branches
b. Provided for special courts with personal, family, and property law jurisdiction consistent
with the provisions of this Constitution and national laws.
- ARMM shall remain an integral and inseparable part of the national territory of the Republic of
the Philippines
- In case of conflict between the Muslim Code and the Tribal Code, the national law shall apply
- Sulu, tawi tawi, Maguindanao, and Lanao del Sur -- voted to join the ARMM
- Muslim leaders squandered monies, failed to attract foreign investment, and engaged in integral
disagreement and rivalries.
- ARMM leaders criticize the government for failing to grant the full autonomy promised.
- ARMM remits 60 percent of its revenue and gets only 10 percent back.

Toward a Pluralist Resolution of Conflict


- Justice JBL Reyes commented on the need for a pluralistic approach of legal hybridity in the
Philippines.
Need for a thorough study of the legal rules of islamic law. Without endangering
national unity. Legal co-existence
- Pragmatism appears to be the central driving force
- Four mechanisms for managing legal hybridity:
a. Dialectical discourse
- Involves a continuing conversation between normative communities
- Competing communities practice mutual accommodation by allowing the norms
of the other to influence their own normative interpretations.
- Examples:
- Supranational level: European Court of Human Rights
- PH example: Bondagjy vs Bondagjy
indeed , what determines the fitness of any parent is the
ability to see the physical, educational, social and moral welfare
of the children
Sharia judge: Ms. Artadis moral depravity under
Muslim law.
b. Margins of appreciation
- Acknowledges the need for a hierarchal legal supervisor to retain oversight
authority while providing space for legal variation in implementing supervisory
norms.
- Elements of the margins of appreciation doctrine are embodied in both the 1987
Constitution and PD 1083 which require the government to consider the rights of
indigenous communities in formulating and implementing national policies.
- Tampar vs Usman
- the Supreme Court considered whether a sharia circuit courts dismissal
of a case on the basis of yamin, or holy oath, taken by the defendant
violated general principles of due process.
- The plaintiffs claimed the defendant, Mr. Usman, had forged their
signatures on a deed of sale for a parcel of real property.
c. Jurisdictional redundancy

28
- arises when multiple communities possess jurisdictional authority over the same
actors.
- Because of this overlap, system actors face a number of legal conundrums,
including conflicting normative obligations, choice of forum, and uncertainty as to
final resolution of the ultimate issue.
d. Limited autonomy regimes
- The purpose of such regimes is to mediate conflict by endowing minority
populations with some measure of shared state power.

Progress through Pluralism


- The 1987 Constitution explicitly endorses pluralist considerations in the development and
implementation of state policies.

Lessons in managing legal hybridity theough a pluralist methodology


1. conflict arising from entrenched legal hybridity is unlikely to be solved through either
sovereigntism or universalism
2. Pluralisms structured framework for resolving hybridity, though messy, at least appears no
messier than an unstructured framework in which overlapping norms are expressed informally.
3. A pluralist approach may lead to a normative cross-flow in which competing communities are
mutually enriched, enhancing the value of the social space they share.
4. Well constructed frameworks for engaging in dialectical discourse and applying margins of
appreciation can effectively manage competing normative obligations.
5. Pluralist mechanisms provide a means of managing legal hybridity for those willing to ascribe to
pluralist values, but are less useful elsewhere.
6. The effectiveness of pluralist mechanisms is diminished greatly when they are employed
insincerely or deployed inadequately.

III. ROMAN LAW


AGABIN
CHAPTER 3: THE RISE OF THE CIVIL LAW SYSTEM

Roman elements of the civilian system


- Roman law , as far back as Institutes of Justinian, is the basis of Spanish law, which is the
basis of our civil code
- Early roman law influenced by Greek stoic philosophy
Early Roman law intertwined with religion
- Roman state initially composed of peasants which fashioned their law to their simple
lifestyle
- Primitive government elective king, council of nobles, general assembly of people
- King administers war and religion, proposes the laws
- Laws are debated in the senate, ratified by a majority of votes in 30 parishes in the city
- Marriage laws are ascribed to Romulus (founder of Rome)
- Civil law balances the rights of 7 classes of citizens, observance of contracts, and
punishment of crimes
- Law was both lex and jus, command and justice; law is a relation between man and man
and man and the gods; law and punishment designed to restore peace
- Crime was a disturbance of that relation, pax deorum or peace of the gods

29
- Priests shaped the law to suit their religious needs and decided what is wrong and right,
- Where law is based mainly on religious rituals, the law stagnates. The process of thought
freezes by fear of eternal damnation, substance is filled with oaths and rituals, which caused
little leeway for independent thought
- When law becomes distinguishable from religion, it develops
Laws and symbols
- Early forms of roman law used signs and gestures to symbolize certain transactions
- Transactions resemble a pantomime, which requires gestures or forms for the validity of a
contract causing lengthy and intricate ceremonies
- Contracts and conveyances involves families and organized companies of men not of single
individuals
The family as a basic unit
- Rights were attainable with respect to family, not to individuals
- Family is ruled by the highest living ascendant whose authority is called patria potestas
- Unusual power of fathers over members of the family
o Power of life and death over the children
o Uncontrolled physical chastisement
o He could give a wife to his son
o Divorce his children or wife
o Transfer them to another for adoption
o Or sell them
- Perpetual tutelage of Roman women, continues to be subject to male authority even after
she gets married
Marriage and divorce
- 3 modes of marriage
o Religious marriage or conferratio/conferreation
Full of symbols
o Civil marriage or coemption
Husband bought wife (as young as 12) with 3 pcs of copper
o Lower form or usus, women passed to husband as a daughter
- Wife is defined as a chattel, which can be returned within one year or divorced on the
flimsiest reasons
- Separation is declared by a word, sign, message, letter, or the mandate of a freedman
- Condemned incestuous marriages
- Allowed concubine, and child born out of this could be legitimated if concubine and father
were to marry and child can inherit
- Illegitimate children entitled only to name and status of mother
- Guardianship over male children lasted only til age of majority (at 14 y/o), but women are
forever under guardianship
Testate and intestate succession
- Descended from mancipium, primitive form of conveyance
- The will is one of several ways of transferring the representation of the household to a new
head
- Order of intestate succession:
o Direct descendants not emancipated
o Nearest agnate
o Members of the house bearing the same name when descended from the deceaseds
family

30
o No part of the inheritance was given to any relative identified with the deceased
through female descent
- Mancipi concept governing contract affected the development of property laws when the
praetors devised the concept of nec mancipi
- Res mancipi and res nec mancipi division of property to movables and immovable
- Res mancipi all things easily known individually, great value, highly appreciated (land,
slaves, work animals commodities of prime value to an agricultural society)
- Mancipium mode of conveyance/transfer
- Nec mancipi needed only actual transfer or delivery, not full ceremonies of mancipi
Evolution of contract
- Mancipi transaction where property was transferred and this severed contracts from
conveyances
- ^ this led to classification of contracts to verbal, literal, real and consensual
- Verbal go thru certain words, then reduced into stipulation or Q&A
- Literal - entry in ledger
- Real delivery of thing
- Consensual specified as agency, partnership, sale, letting and hiring
- Nexum contract and conveyance blended; formalities much more important than
agreement itself
- Stipulation simplified ceremonial
- Literal formalities waived if proof can be supplied from the observances of Roman
household
- Real moral duty is recognized
- Consensual mental attitude of parties solely regarded
Concept of obligation
- Law of obligation or of contract and delict had most extensive influence on foreign law
- obligation bond or chain that joins together persons in consequence of certain acts
o Implies right to have a debt paid and the duty to pay it
- vinculum juris legal chain which binds the parties together
- xolutio payment, only this can break legal chain
- Contract convention or pact coupled with obligation
- 2 divisions:
o Natural obligations person deliberately bound himself to an engagement
o Civil obligations
- Other sources of obligations
o Quasi-contracts not contracts, convention/agreement is missing
Eg. Payment by mistake obligation on the receiver to refund
o Quasi-delict
Acquisition of property
- Original right to property
o By discovery
o Capture
o Prior occupancy
o Possession
- Modes of acquiring property
o Mancipium delivery of thing in the presence of witnesses and public official
o in jure cession solemn delivery before a praetor
o adjudication partition made by a judge

31
o lex determined by twelve tables
o usucapio by prescription
- division by romans
o movables
o immovable
- essential aspect of property
o the object
o the web of social relations establishes a limiting and defined relationship between
persons and objects
- romans recognized that a persons control over property is relative, this can be limited by
law, custom, and other forms of restraint by society
- sic utere tuo ut alienum non laedas no one should make evil use of his own property
Crime and punishment
- Penal law law of wrongs/torts not of crimes
- Injured thru ordinary civil action and recovers compensation/damages against wrongdoer
- Theft or furtum heads twelve tables list of civil wrongdoings
- Other torts all of which give rise to obligation to pay money
o Assault, robbery, Trespass, Libel, Slander, Homicide and minor injuries
- Crimes according to religious code violative of divine command
o Adultery, sacrilege, murder
- Bills of pains and penalties punishment to crimes committed against the state
- For ordinary crimes, like theft, penalties is based on the value of thing stolen and status of
the offender
- Bodies to try crimes
o Initially, legislative assemblies presided over by the king
o Later, commission or single commissioner
o Standing commission for specific crimes (parricide, murder, violent injury)
- Quastro perpetua anti graft court to recover money misappropriated by the governor-
general
o Members selected from particular class of judges to officiate
Philosophy of early Roman law
- Law conceived as a philosophically discovered system of principles which express the
nature of things to which man ought to conform is conduct
- Law of nature that which nature has taught all living beings not only men (basta anything
related to nature)
o Stimulus to progress in the development of romans legal system
- Alluvion soil which the river added to your land
- Positive law or man-made law
- Stoics where roman law borrowed its concept of individual rights, theory of penology, rules
of administration and fidelity o duty
- Bonus pater familias (good father of the family) standard relation for development of
private law during the first period
- Jus aequum principle of equity during the second period
- Characteristics of a good legal system simple, symmetrical, intelligible
- distinguishing mark of roman law
o Absence of ethical element - law is what is decided by the people of Rome at the
request of the senatorial magistrates, such as a consul
o Simplicity reflective of stoic philosophy it borrowed from Greece

32
- Private law: 2 form of human association
o Societas and
o the corporation
- communion community of heirs, patrons, etc
- no distinction bet real and personal property
- contracts for work and labor and for hire and lease in one contract
- one form of security possessory/not
- property law between husband and wife
o manus marriage wife has no property
o free marriage separation of property
- when law replaced religion as the main regulating agency, the old oath became a formal
legal contract which created a legal duty enforced by the government
- legal symbols replaced symbols and magic
- contract became a source of obligation
- private law: philosophy of individualism = freedom from state interference
o roman laws of ownership extremely individualistic
- 2 principles of roman law:
o aequitas (equity) practical concession as the directive principle of a progressive
legal development which finds itself in opposition to the strict civil law
o humanitas contemplated moral and intellectual education, kindness, goodness,
sympathy, consideration for others
husbands usucapio was abolished
sale of the wife = delict
community of property recognized
wife could succeed estate of the husband

MAINE
CHAPTER VIII: EARLY HISTORY OF PROPERTY
Maine Chapter VIII: The Early History of Property

Natural modes of Acquisition:


I. Occupancy taking possession of a property not owned by anyone with the view of acquiring it for
oneself
Res nullius refers to things which have not or have never had an owner
-Have not = abandoned movables, deserted lands, enemy property
-Have never had = wild animals, fishes, wild fowl, jewel, newly discovered lands

Roman principle of Occupancy is the souce of all modern International Law on the subject of Capture in
War and of acquisitions of sovereign rights in newly discovered countries
Capture in War rests on the assumption that communities are remitted to a state of nature by outbreak
of hostilities, and that the institution of private proerty falls into abeyance
- the goods of an enemy is looked at as nobods property and therefore capable of being acquired by
st
the 1 occupant
- In applying this to the discovery of a new country, the greatest uncertainties are the extent of the
territory and the nature of the acts necessary to complete the assumption of sovereign possession
According to Savigny with respect to Roman Law, all property is founded on adverse possession riped
by prescription.
-Roman coneption of ownership involves 3 elements:

33
1. Possession
2. Adverseness of Possession holding exclusivel against the world
3. Prescription period of time the adverse of possession has uninterruptedly
continued
-Occupantcy is not part of ancient law but a development of modern jurisprudence
-Presumption used to justify occupancy: Everything ought to have an owner all valuable things are
naturally subjects pf an exclusive enjoyment
-Properties were not owned per individual, but of families composed of patriarchal model Joint
ownership is the archaic institution
Internal arrangement of within the patriarchal groups in Indo-Europeans:
Highlands clans dole out food to the heads of households daily
Austrian and Turkish provinces distribute the total yearly produce once a year
-As to contracts and conveyances, the transaction does not involve single individuals but organized
companies of men, requiring a variety of symbolic acts intended to impress the business in the emort of
all who take part in it and in the presence of inordinate number of witnesses. The entire solemnities must
be completed or else the conveyance is null

-The history of Roman Property Law is he history of assimilation of Res Mancipi to Res Nec Mancipi
-things that are important to them are those they use regularly
-Res Mancipi includes those that they use in agricultural labour such as horses and oxen. The
mode of conveyance by which they were transferred was called a Mancipium or Mancipation which
required foral ceremonies
-Res Nec Mancipi includes jewel, and considered inferior kinds of property as compared to Res
Mancipi and they thought that it is immensely inconvenient to conduct mancpation for conveyance
therefore it nly involved simple methods of transfery and recovery

Usucapion Prescription or rule that commodities which had been uninterruptedly possesses for a
certain period became the property of the possessor. (If you possess it for at ost 2 years, its already
yours.)
-should be done in good faith
-Defective title can be cured by Usucapion

Roman V English contrivances


Roman: jurists sought to prevent complications by substitutiong a mode of transfer necessarily
impeachable
English: object is to remove complications already introduces in the title

II. Possession physical detention + intention to keep it as ones own


The Patrician burgers whi had become tenants of the greatest part of public domain at nominal rents were
mere possessors but they are possessors intendin to keep their land against all comers
They contended that time and undisturbed enjoyment has ripened their holding of the lands and it would
be unjust to eject them for the purpose of redistributing domain

Possesory Interdicts - The only legal remedies tenants could avail if ejected or threathened with
disturbances
- summary processes of Roman Law which were either expressly devisedy the Praetorfor their
protection
- moulded into a shape fitted for trial of conflicting claims to dsputed possessions

34
-
Legal Tribunals have also powerfully assisted to shape and modify conceptions of proprietary right by
means of the distinction between Law and Equity
Equitable property (in England) is simply property held under the jurisdictiob of the Court of
Chancery

Leading characteristic of the feudal conception is its recognition of a double proprietorship, the superior
ownership of the loard of the fief consiting with the inferior property or estate of the tenant
This proprietary right led to a generalised distribution of rights over property
1. Quiritatiian legal
2. Bonitarian equitable
Emphyteusis example of a double ownership involves lords and fiefs
Rights of tenant:
1. When ejected, he was allowed to reinstate himself by Real Action
2. disrinctive badge of proprietary right
3. protected from disturbance by the author of his lease so long as the canon or quit rent was
ounctually paid

Rights of owner:
1. power of re entry on non payment of rent
2. right of pre emption case of sale
3. certain control over the mode of cultivation

Example: Roman State was the landlord but the soldiers cultivated it without disturbance as long as they
held themselves ready to be called out for military purposes. (basically they paid in service)

CHAPTER IX: THE EARLY HISTORY OF CONTRACT


The society of our day is mainly distinguished from that of preceding generations by the
largeness of the sphere which is occupied in it by Contract
Old law fixed a mans social position irreversibly at his birth (modern law allows him to create it for
himself by convention)
Legislation has nearly confessed its inability to keep pace with the activity of man in discovery, in
invention, and in the manipulation of accumulated wealth
Most have an almost instinctive reluctance to admitting that good faith and trust in our fellows are
more widely diffused than of old, or that there is anything in contemporary manner which parallels
the loyalty of the antique world.
But the very character of these frauds shows clearly that before they became possible, the moral
obligations of which they are the breach must have been more than proportionately developed
Morality has advanced from a very rude to a highly refined conception from viewing the rights of
property as exclusively sacred to looking upon the rights growing out of the mere unilateral
reposal of confidence as entitled to the protection of the penal law
Contracts in History
o Views of roman lawyers was inconsistent with the true history of moral and legal progress
Juris gentium plighted faith of the contracting parties was only material ingredient
Antiquity only capable of being understood through the present

35
o Persians are pointed out as the traits of primitive innocence which have been gradually obliterated by
civilization
o Social Contract or Compact
Jurisprudence was attributed to a uniform source
Theory that all law had its origin in contract
Insistence on social compact as historical fact
Our own generation has gotten rid of these erroneous theories
o The point which before all others has to be apprehended in the constitution of primitive societies is that
the individual creates for himself few or no rights, and few or no duties
o Rules are derived from the place he is born and were created by the household of which he forms part
(family)
No trustworthy primitive record can be read without perceiving that the habit of mind which
induces us to make good a promise is as yet imperfectly developed
o Formalities are not only of equal importance with the promise itself; they are of greater importance
o Jurisprudence applies to conditions of the mind under which particular verbal assent appears to be
transferred to the words and gestures accompanying performance
o Mental engagement isolates itself amid the technicalities and gradually becomes sole ingredient on
which the interest of the jurisconsult is concentrated
Conveyance and contract
Forms are only retained so far as they are guarantees of authenticity and securities for caution
and deliberation
Contracts are absorbed in pacts
Roman law
o nexum and the parties were nexi connected by a strong bond or chains
o every transaction with the copper and the balance
o An ancient legal conception corresponds to not one but several modern conceptions
subordinate conceptions gradually disengage themselves
o Power is discriminated both in word and conception according to object over which it exerted
o Dominium exercised over material commodities or slaves
o Potestas over free persons
o Mancipium over a wife if it is still manus
o One solemn ceremonial for all solemn transactions
o Transaction with copper and balance when intended to have for its office the transfer of
property is known as mancipation
Transformation
Power over children was the root of the old conception of power
Will was at first simple conveyance of property
Contracts first showed themselves through the nexum being put to a new use and obtained
recognition as distinct transactions
Whether it became a contract depended on whether the law annexed an obligation to it (contract
was a pact plus obligation)
Roman Obligations
Obligation bond or chain with which the law joins together persons or groups of person in
consequence of voluntary acts
Pact does not draw itself to the obligation it is the law which annexes it in the plentitude of its
power
Law bound parties together, and the chain could only be undone by process called solution
(payment)

36
Classification of contracts
o Verbal -most ancient, effected by means of stipulation (Q and A)
o Literal formal act was an entry of the sum due where it could be ascertained on the debit
side of the ledger
o Real obligation from the delivery of the thing; great advance in ethical conceptions;
performance of one side is allowed to impose a legal duty on the other on ethical grounds
o Consensual no formalities are required to create them out of the pact; obligation annexed at
once to the consensus (mutual assent of the parties)
Each class was named from certain formalities which were required over and above the mere
agreement
Consensus is the final and crowning ingredient in the convention, and it is the special
characteristic of agreements falling under sales, partnership, agency and hiring (that is to say, as
soon as the assent of the parties has supplied this ingredient, there is at once a contract)
The consensus draws with it the obligation performing the exact functions which are discharged
In roman life most important of all contracts are the four styled consensual this led romans to
relieve transactions from technical incumbrance and to abstain as much as possible from
clogging the most efficient springs of social movement.
Consensual contract were limited in number, but it cannot be doubted that they constituted the
stage in the history of contract law from which all modern conceptions of contract took their start
Natural and Civil Obligations
Natural obligation person full of intellectual maturity had deliberately bound himself by
engagement even though through some technical impediment he was devoid of the formal
capacity for making a valid contract
Nothing but a contract could be the foundation of an action, but a mere pact or convention could
be the basis of a plea
A claim arising out of a valid contract could be rebutted by proving a counter agreement which
had never got beyond the state of a simple convention
The revolution of the ancient law of contract was consummated when the praetor of some one
year announced in his edict that he would grant equitable actions upon pacts which had never
been matured at all into contracts, provided only that the pacts in question had been founded on
a consideration
March of Ideas from one great landmark to another
Nexum contract and conveyance are blended; formalities which accompany the agreement are
even more important than the agreement itself
Stipulation simplified form of the older ceremonial
Literal contract all formalities are waived, if proof of the agreement can be supplied from the
rigid observances of the Roman Household
Real contract a moral duty is recognized; If you join in partial performance of an engagement
you are forbidden from repudiating it on account of defects in form
Consensual contract mental attitude of the contractors is solely regarded, external
circumstances have no title except as evidence of the undertaking
Legal thought in the Roman Empire
Can only use Roman law up to a certain point to represent progress of other systems of
jurisprudence
Theory of natural law exclusively Roman
Most extensive influence of Roman law on foreign subjects of inquiry has been on the law of
obligations, contract and delicts
Quasi Contract and Social Compact

37
Phraseology of Roman contract law had been largely drawn upon to describe that reciprocity of
rights and duties which men had always conceived as existing between sovereigns and subjects
Later Moral Philosophy
Like all great subjects of modern thought, law was originally incorporated wit theology
The science of moral theology was constructed by taking principles of the church and using
language and methods of jurisprudence for the expression and expansion
2 great schools of thought:
(1) Casuists in spiritual communion with the roman catholic church
(2)
Legal science is a Roman creation, and the problem of free will arises when we contemplate a
metaphysical conception under a legal aspect
Problem of free will was theological before it became philosophical
Jurisprudence has made itself out of theology
Contract Law and Feudalism
True archaic communities are held together not by express rules but by sentiment or instinct
But early Feudal communities were bound together by contract
Empire bequeathed to modern society the legal conception that if the customs and institutions of
barbarians have one characteristic more striking that another it is their extreme uniformity

CHAPTER X: EARLY HISTORY OF DELICT AND CRIME

The civil part of the law has trifling dimensions compared with criminal law. The more archaic the
code, the fuller is its penal legislation, due to habitual violence in the community.
The Law of Persons, which is actually the Law of Status, was subjected to Paternal Power. There
was also hardly a Law of Property and Inheritance as goods devolved within the family. But the
greatest gap in ancient civil law was the absence of Contract.
All civilised systems agree in drawing a distinction between offences against the State (Crimes)
or Community and offences against the Individual (Wrongs or Torts). The penal law of ancient
communities is not the law of Crimes; it is the law of Wrongs.
There were laws punishing sins and laws punishing torts.
Sin - offense against God
Tort - offense against ones neighbor
Crime - an act involving such high issues that the State, instead of leaving its cognizance to the
civil tribunal or the religious court, directed a special law against the perpetrator. Every indictment
took the form of a bill of pains and penalties, naming the criminal and prescribing his punishment.
Through its tribunals, the proceedings were a close imitation of the series of acts which were
likely to be gone through in the private life of a person. The most ancient judicial proceeding
known is the Legis Actio Sacramenti of the Romans, described as ceremonial:
Sacramentum (a pledge or bond) - a sum of money deposited in a legal procedure to affirm that
both parties to the litigation were acting in good faith
The reward to the judges was a much larger amount than the Sacramentum
In settling the damages to be awarded, they took as their guide the measure of vengeance likely
to be exacted by an aggrieved person under the circumstances of the case. For example, the
penalties imposed on Theft differed depending on whether it was Manifest or Non-Manifest.
Manifest Thief - caught within the house in which he had been pilfering , or who was taen
while making off to a place of safety with the stolen goods; either put to death (if a slave)
or made bondsman of the owner of the property (if a freeman). This was later changed to
payment of fourfold the value hed stolen

38
Non-Manifest Thief - detected under any other circumstances than those described;
made to refund double the value hed stolen
The Romans confined their experiments to the penal law, and did not, like the Athenians,
construct popular courts with a civil as well as a criminal jurisdiction. The Comitia (a legal
assembly of the people) delegated its criminal jurisdiction to a Qustia or Commission. A
Qustia was only appointed to try a particular offender, but nothing prevented two or three
Qustiones sitting at the same time.
The primitive history of criminal law divides itself therefore into four stages.
(1) 1st Stage: The commonwealth itself interposed directly to avenge itself on the author of
the Crime which it had suffered. Each indictment was a bill of pains and penalties
(2) 2nd Stage: When the multiplicity of crimes compels the legislature to delegate its powers
to particular Quaestiones or Commissions, each of which is deputed to investigate a
particular accusation, and to punish the particular offender.
(3) 3rd Stage: When the legislature, instead of waiting for the alleged commission of a crime
as the occasion of appointing a Quaestio, periodically nominates Commissioners, on the
chance of certain classes of crimes being committed, and in the expectation that they will
be perpetrated.
(4) 4th Stage: When the Quaestiones become permanent Benches or Chambers
Singularities of the Roman Criminal System
Proscriptions - frightful revolutionary intervals during which all law was formally
suspended because the community was displeased by the disappearance of the
punishment of death
Extreme multiplicity of the Roman criminal tribunals
Capricious and anomalous classification of crimes
The theory of criminal justice began with the belief that it was the business of the collective
community to avenge its own wrongs by its own hand; and it ended in the doctrine that the
chastisement of crimes belonged in an especial manner to the Sovereign as representative and
mandatory of its people. The new view differed from the old one chiefly in the air of awfulness and
majesty which the guardianship of justice appeared to throw around the person of the Sovereign.
The development of criminal law was universally hastened by two causes, (1) the memory of the
Roman empire and (2) the influence of the Church

IV. CIVIL LAW AS IMPORTED INTO THE PHILIPPINES

AGABIN
Chapter 4: Uncivil Law as a Tool of Spanish Imperialism

[This Chapter talks about the development of the civilian legal system which was the perfect tool for
Spanish imperialism. The Code of Napoleon of 1805 was the main influence of the Spanish Civil Code of
1889. The SCC was brought here by royal decree].

Influence of Christianity

5th century: The Visigoths invaders who took over old Rome, invaded Spain.
5th-8th century: They brought a number of Roman institutions that were borrowed from old Rome.
Then they coverted to orthodox Christianity. The bishops and the priests became the chief power in the
state, and they promulgated laws that were the most competent but least tolerant of the barbarian codes.
- Imposed the rules of evidence and the principle of equality

39
- Rejected the freedom of worship of non-Christians and imposed Christianity to all
- MARRIAGE was the most affected by the Christian principles.

Gothic compilations

The Code of Alaric in 506 introduced the tribal customs of the barbarians (Germanic custom law) to
Roman law. This influenced:
- Fuero Juzgo: the first great code of Spain which was a mix of Roman law, German customs, and
canons of ecclesiastical customs

*In 711, the Moors invaded and occupied Spain which retarded the development of Spanish law.

Sietes Partidas of the 15th century was started by Fernando III and completed by Alfonso X. This was a
new system of Spanish law based on the law of Spanish Visigoths but patterned after Justinians
Institutes. This was to preserve the status quo and served the function of developing a COMMON LAW
for all of the principal cities of Spain.. It was divided into 7 parts.

Philosophy of Law (Medieval Period)


- FEUDAL COMMUNITIES led to a rigidly organized close hierarchy.
- Society was divided into various classes and orders. There were three depending on
function:
- The religious
- The military
- The workers
- The hierarchical system revolved around the relationship between LORD and VASSAL.
- Vassalage was not a legal concept that would approximate social compact, but rather, it
was an emotional bond between lord and servant.
- Rise of Christianity affected law. Shown in St. Augustines De Civitate Dei which represented
the view of theocracy:
- It drew the law closer to theology (law is founded on the will and wisdom of God)
- Legal relationship between church and state (Church asserting itself above the state)

Philosophy of Law (Late Medieval Period)


- 9th to 15th century saw the rise of ecclesiastical law or the CANON LAW. The Pope legislated on
matters not only spiritual but also temporal.
- The canon law was followed along side civil law and local law. In some places, it became the law
of the land.
- The legal philosophy at this time culminated in the Summa Theologiae of St. Thomas Aquinas.
Where in there were three orders of laws:
- Divine law (lex aeterna): governs the world
- Natural law (lex naturalis): men know thru reason
- Positive law (lex humana): man-made application of the natural law to particular
situations.
- Aquinian definitions of justice is borrowed from Roman law.
- Justitia generalis (all earthly virtues)
- Justitia particularis
- Justitia commutativa (to prevent unjust enrichment)
- Justitia distributiva (distributive justice; geometrical proportions)

40
- Spains version of the Renaissance was the renaissance of scholasticism.
- Elaboration on the Thomastic doctrines, especially natural law.
- In 1789, promulgation of the Code Napoleon in 1805.
- Deviates from the philosophy of the Corpus Juris Civilis.
- Enunciating in general terms the modern principles like freedom from contract,
civil marriage and divorce, and equality of men.
- Consists of FIVE codes: Civil, Criminal, Commercial, Civil Procedure, and Criminal
Procedure.
- The Civil Code became the model for legal reform in Spain.
- In 1889, the Civil Code of Spain was promulgated and was extended to the PH by royal decree.

Innovations in the Present Civil Code (of the PH)


- It enacted morals of the Catholic religion into law and perpetuated the institutions of Catholicism.
- Overriding philosophy is NATURAL LAW.
- Positive law according to St. Thomas (from whence the moral orientation of our Civil
Code is based) ---> Follows the dictates of natural law and must be founded upon justice,
should be in harmony with morality, concordant with the natural order, adapted wot what
is feasible, and considerate of local customs and traditions.
- The philosophy of individualism (based on American common law) upholds self-fulfillment and
self-assertion.
- Provisions on independent civil action and actions for damages for violation of rights in
the Bill of Rights.
- Family Code
- (on MARRIAGE) adopted the medieval outlook on (1) marriage as a contract between
families instead of between individuals. There is also the view of marriage as a (2)
special contract.
- (1) Provisions on parental consent and parental advice.
- (2) Social values over individual consent; the participation of priests (clerical
supervision)
- PROPERTY LAW and SUCCESSION is based on feudalism.
- PRINCIPLES of TRANSFER for VALUE was imported from American law.
- Provisions on CONTRACT and OBLIGATIONS grounded on natural law philosophy of the West.

BOCOBO
On the General Nature of the Civil Code

I. ON THE GENERAL NATURE OF THE CIVIL CODE


Civil Code: Next to the constitution, it is the most vital and the most far-reaching law governing private
rights.

We are governed by Spanish Law. Filipino people had no voice in its approval and promulgation due to:

1. Inherent and traditional conservatism of the legal profession, which is generally reluctant to break
away from precedents and established systems.
2. The principle of international law that upon the change of sovereignty, the body of laws continues
to be in force unless and until modified in some way or another by the new sovereign power.
3. The narrow horizon of the legal profession in the Philippines, which, for lack of knowledge of
other legal systems, considered the Spanish Civil Code the very best in the world.

41
4. Work of codification undertaken by the code commissions and code committees before the last
war was not sufficiently persistent to give the task such as would have insured the submission of
the legislature of a complete draft of a Civil Code of the Philippines.
5. Inferiority complex in the mental make-up of our people. Unjustified fear that civil code by Filipino
jurists would not be as good as the Spanish.
Pres. Roxas (1947) created Code Commission to revise all existing substantive laws of the Philippines
and of codifying them in conformity with the customs, traditions and idiosyncrasies of the Filipino people
and with modern trends in legislation and the progressive principle of law.

Two Great systems of law in the modern world:

1. Roman Law
i. Codification of civil law in accordance with the Code Napoleon (e.g. Spanish Civil Code)
ii. Led by the German Civil Code (e.g. Swiss Civil Code)
2. English Common Law
New Civil Code of the Philippines:

General structure: Napoleonic type


Basis :Spanish Civil Code (but innovations are 43%)
Provisions have been adapted from France, Argentina, Mexico and Louisiana
Much derived from principles of English Common Law such as equity jurisprudence and
independent civil actions
Few principles from German Civil Code (before Hitler regime)
While we are influenced by Western Civilization, we are beneficiary of great heritage of law which
had its origin in Rome
Any code that departs from the native customs is injurious and artificial

Reforms of the new Civil Code:

1. Elevation of moral principles into positive law under certain conditions


2. Strengthening of democracy as a way of life
3. Introduction of equity jurisprudence as found in English and American legal systems
4. Liberalization of womens rights
5. Implementation of social justice
6. Elevation of Filipino customs into law
7. Exaltation of personality
Expounding each:

1. Elevation of moral principles into positive law under certain conditions


Art.21 Any person who willfully causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage

- This law refers to transgression of morals, good customs or public policy not to any
violation of any statute or positive law
- From German Law: Legislative cannot foresee all wrongs that cause damage to another
person there should be an all-embracing clause that will provide remedy in all such
unforeseen situations.

42
Ex: If a man should seduce a girl who is 18 y/o or over, under the old civil code, there was no
remedy for the aggrieved girl because, accdg. To Penal code, seduction can be committed only
upon a girl under 18. However, under the new Civil Code, seduction is a wrongful act that is a
clear violation of the moral law and of good customs, indemnity for the girl may be awarded by
the courts.

2. Strengthening of democracy as a way of life


- new provisions:
a. Education of children. Art. 358. Every parent and every person holding substitute
parental authority shall see to it that rights of the child are respected and his duties
complied with, and by precept and example, imbue child with high-mindedness, love
of country, veneration for the national heroes, fidelity to democracy as a way of life
and attachment to the ideal of permanent world peace.
Parent to child: fidelity to democracy as a way of life which is the strongest guaranty
for the continuance of popular government.

b. Accdg, to Art. 32, any public officer or employee or any private indiv who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
rights and liberties of another person (e.g. freedom of speech, of press, from illegal
detention and the right to be secure against unreasonable searches) shall be liable
for damages.
Old Code : person illegally arrested/ victimized had to go to prosecuting atty. If atty is
under political influence/undue pressure and refuse to bring criminal action,
aggrieved had no recourse.

New code: Citizen may bring an independent civil action to obtain damages
regardless of attitude of the fiscal

3. Introduction of equity
- Defects of Spanish civil code : strict legalism
- By adoption of system of equity, Phil. Law enriched by new civil code and became more
pliable and adaptable, in order to forestall any injustice that comes from unconscionable
rigidity and injustice legalism of Spanish code.

a. Reformation of instruments- equitable remedy. Court orders written contract be reformed or


corrected so as to express true intention of parties.
Ex. A deed purporting to be a contract sale with pacto de retro is, in most cases, really a
mortgage because the real intention of the parties is that the land is merely given as a security for
a loan but the deed is worded as a sale with right of repurchase.
- Under new civil code: seller who is really mortgager masy ask the court to order
correction or reformation of deed so that it will be reworded as mortgage
b. Doctrine of trust one of principal features of equity jurisprudence in England and America
Ex. A,B and C purchase a piece of land, each contributing 1/3 of cost. However, they agreed that
title reg to A.
- Old civil code: no remedy for other two if A should renounce agreement and claim that
land was his only.
- New : under Art. 1475 : B and C may bring action to force A to recognize the trust
c. Old: Penalty in contract could not be reduced even if it was iniquitous (immoral) or
unconscionable (unacceptable), unless partial or irregular performance.

43
New (Art. 1229) : Even if no performance, penalty may be reduced by courts if it is iniquitous or
unconscionable.
Ex: Spouse A owes B P5000 payable in 3mos, with penal clause to the effect that for every
month of delay of payment after depth shall become due, debtor shall pay penalty of P500. Such
a penal clause would be subject to revision by the courts which will reduce the penalty to a
reasonable amount.

4. Liberalization of Womens Right


Old: Women classified among minors and insane person bec she cant enter into contract
in certain cases without husband consent
New: legally emancipated married women. Art. 39. A married woman 21 years of age or
over is qualified for all acts of civil life except in cases specified by law.
1 exception : Married women needs consent of husband if she accepts diamond ring from
stranger.
With regard to admin of conjugal partnership:
Old: husband free to dispose of conj. Part. Prop w/out consent of wife
New: Cannot dispose without wifes consent

Old: husband abused power as admin of conj part, wife no remedy. He was able to
donate any to his querida.
New (Art. 167.) :In case of abuse of power of administration of conj part prop by
husband, courts on petition of wife may provide for a receivership or administration by the
wife or separation of prop.

5. Implementation of social justice


- To raise poor to a level of dignity so that they could claim their God-given rights as
human beings made in the image of God, and at the same time, to have an equal
opportunity to enjoy the good things in life, provided of course that they are willing to
work.
- Provision in new civil code
Art. 1702: In case of doubt, all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living of the laborer.
Art. 1703: No contract which practically amounts to involuntary servitude,
under any guise whatsoever shall be valid
Art. 1707: The laborers wages shall be a lien on the goods manufactured or
work done.
Ex. Suppose that in a shoe factory the owner or manager should refuse or fail to
pay the wages in due time. The laborers may, through a court action, have the
shoes attached and sold by the sheriff for the payment of wages. Such claim of
the laborers is a lien on the shoes.

- Art. 24 (should be one of the strongest bulwarks of social justice) : In all contractual,
property or other relations, when one of the parties is at a disadv on account of his moral
dependence, ignorance, indigence, mental weakness, tender age or other handicap, the
court must be vigilant for his protection.
- Art. 25: Thoughtless extravagance in expenses for pleasure or display during a period of
acute public want or emergency may be stopped by order of the courts at the instance of
any government or private charitable institution.

44
6. Elevation of Filipino Customs
- best law is that which derived from customs
- New civil code consecrated some of our indigenous customs:
a. Women are exalted to a high level in the family, especially in management of
conjugal property
b. Administration of childs property by parents has been restored
c. Grandparents must be consulted by all members of family on all important family
questions (Art. 312). Substitute parental authority is exercised by grandparents and
the oldest brother or sister (Art. 311).
d. Instead of father only as before, father and mother jointly exercise parental
authority(Art. 311)
7. The Human Personality is exalted
- Supreme aim: protection of human dignity
- Provisions:
Art. 26. Independent Civil action for damages against any who disturbs
private life of another, or who vexes or humiliates another on account of the
latters religious beliefs, lowly station in life, place of birth, physical defect, or
other personal condition.
Art 33 which also grants independent civil action for damages in case of
defamation or physical injuries
Art 2217 which grants moral damages to the plaintiff in many cases such as
illegal detention, physical injury, defamation, or adultery.
Old: does not recognize moral damages on technical ground that they
cannot be pecuniary ascertained.
New: allows moral damages which compensate the victim for mental
anguish, moral shock or social humiliation.

II. THE NEW CIVIL CODE: HISTORY AND GENERAL NATURE

What we need id fewer but better laws.

The more corrupt the republic, the more laws.

BASIC REFORMS

1. The supremacy of justice over legalism


2. Creation of certain civil actions, similar to the American torts, independent from criminal
prosecution.
3. Strengthening of democracy as a way of life
4. Introduction of equity jurisprudence as found in English and American legal systems
5. Liberalization of womens rights
6. Consolidation of the family
7. Implementation of social justice
8. Elevation of Filipino customs into law
9. Exaltation of personality
STRUCTURE OF THE NEW CIVIL CODE

4 books:(like Spanish Civil Code)

45
I. Persons
II. Property, Ownership and its Modifications
III. Different Modes of Acquiring Ownership
IV. Obligations and Contracts
*** only change: Prescription has been transferred from IV to III because prescription is one of the
modes of acquiring ownership.

French Civil Code: I. Persons, II. Property and Modifications of Ownership, III. Modes of Acquiring
and Transmitting Ownership ( in here also: Successions, Donations and Contracts)

Swiss Civil Code: Introduction. 4 Parts: Persons, Family, Inheritance, Things and Concluding Title.
Separate Code of Obligations.

German Civil Code: 5 books: 1 ( General Part with 7 sections devoted to different subjects such as
capacity of persons, validity of jurists acts, prescription of actions and self-help. 2: Obligations.
3:Things and Real Rights, 4: Family law, 5: Wills and Successions.

SALIENT REFORMS IN NEW CIVIL CODE

1. Supremacy of Justice over Legalism


-General principles:
On violation of morals. Art 21: Any person who willfully causes loos or injury to
another in a manner that is contrary to morals, good customs or public policy shall
compensate the latter for damage.
- No violation of any positive law. It is sufficient that: (i) the act is willful, (ii) Injury to
another is caused (iii) there is violation of morals, good customs, or public policy.
On right conduct. Art 19: Every person must, in the exercise of his rights and in the
performance of his duties, give everyone his due, ad observe honesty and good faith.
- Precepts of law: To live honestly, to hurt no one, to give everyone his due.
- Revive ancient method of stating fundamental principles in lawmaking
- Declaration of policy: guide the courts in the interpretation of new law
- Every judge or justice know that in doubtful questions of law: a recurrence of first
principles often furnishes the right solution.
On presumption of right and justice. Art. 10: In case of doubt in interpretation and
application of laws, it is presumed that the law making body intended right and justice to
prevail.
- Sets aside any attempt to construe or apply laws in such a way as to defeat right
and justice.
- Congress omitted Art. 10 on draft : When there is no law clearly applicable to
the point of issue, or if the law is doubtful, ambiguous or conflicting and previous
judicial decisions do not throw light upon the question, the general or local
custom shall govern. In the absence thereof, the judge shall apply the rule which
he believes the lawmaking body would lay down, but he should be guided by the
general principles of right and justice.
On unjust enrichment. Art 22: Every person who through an act of performance by
another, or any other means, acquires or comes into possession of something at the
expense of the latter without just or legal ground, shall return the same to him.
- No one should unjustly enrich himself at the expense of the another
Natural Obligations

46
- Art. 1423: Obligations are civil or natural. Civil obligations give a right of action
to compel their performance. Natural Obligations, not being based on positive
law but on equity and natural law, do not grant a right of action to enforce their
performance, but after voluntary fulfillment by the obligor, they authorize the
retention of what has been delivered or rendered thereof.
Illustrations of Natural Obligations:

- Art. 1424: When a right to sue upon civil obligation has lapsed by extinctive
prescription, the obligor who voluntarily performs the contract cannot recover
what he has delivered or the value of the service he has rendered.
- Art. 1428: When, after an action to enforce a civil obligation has failed, the
defendant voluntarily performs the obligation, he cannot demand return of what
he has delivered or the payment of the value of the service he has rendered.
- Art. 1429: When a testate or intestate heir voluntarily pays a debt of the
decedent exceeding the value of the property which he received by will or by law
of intestacy from the estate of the deceased, the payment is valid and cannot be
rescinded by the payer.
2. Independent Civil Action
- Similar to American torts, independent from criminal prosecution
- New kind of civil action, known as torts in American law and adapted in new Civil Code:
Defamation, Fraud and Physical Injuries
- Art. 33: In cases of defamation, fraud and physical injuries, a civil action for
damages, entirely separate and distinct from the criminal action, may be brought
by the injured party. Such civil action shall proceed independently of criminal
prosecution, and shall require only a preponderance of evidence.
Under Penal Code: punished as crimes
Old: in the criminal cases, if accuse was acquitted, civil liability was also
extinguished
New: these actions are independent from any criminal liability or prosecution.
These torts require only preponderance of evidence. There need not be any
proof beyond reasonable doubt.
Violation of Constitutional Rights
- Art. 32: Any public officer or employee or any private individual who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of
the rights and liberties of another person shall be liable for damages:
(1) Freedom of Religion
(2) Freedom of Speech
(3) Freedom to write for the press or maintain a periodical publication
(4) Freedom for arbitrary or illegal detention
(5) Freedom of suffrage
(6) The right against deprivation of property without due process of law
(7) The right to a just compensation when private property is taken for public
use
(8) The right to the equal protection of the laws
(9) The right to be secure in ones person, house, papers, and effects against
unreasonable searches and seizures
(10) The liberty of abode and of changing the same
(11) The privacy of communication and correspondence

47
(12) The right to become a member of associations or societies for purpose not
contrary to the law.
(13) The right to take part in a peaceable assembly to petition the government for
redress of grievances
(14) The right to be free from involuntarily servitude in any form
(15) The right of the accused against excessive ball
(16) The right of accused to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses on his behalf.
(17) Freedom from being compelled to be a witness against ones self, or from
being forced to confess guilt, of form being induced by a promise of
immunity or reward to make such confession, except when the person
confessing becomes a State witness.
(18) Freedom form excessive fines, or cruel and unusual punishment, unless the
same, is imposed or inflicted in accordance with a statute which has not
been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
- In any of the case mentioned, whether or not the defendants act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages, regardless of any action
or inaction of the fiscal.
- This independent civil action may be proved by a preponderance of evidence.
- This provision is designed to protect the citizens from abuse of power by peace
and other public officers or from negligence or malfeasance on the part of
prosecuting attorneys.
Acquittal in the absence of proof beyond reasonable doubt
- Art. 29: When the accused in a criminal prosecution is acquitted on the ground
that his guilt has not been proved beyond reasonable doubt, a civil action for
damages for the same act or omission may be instituted. Such action requires
only a preponderance of evidence. Upon motion of the defendant, the court may
require the plaintiff to file a bond to answer for damages in case the complainant
should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable
doubt, the court shall so declare. In the absence of any declaration to that effect,
it may be inferred from the text of the decision whether or not the acquittal is due
to that ground.

Refusal or failure to perform official duty


- Art. 27: Any person suffering material or moral loss because a public servant
or employee refuses or neglects, without just cause, to perform his official duty
may file an action for damages and other relief against the latter, without
prejudice to any disciplinary action that may be taken.
This article to put an end to pabagsak system whereby many
government employees delay the performance of their official duties until some
gift or bribe is offered them. In this case, the aggrieved citizen has a right to
bring action for damages.
Refusal or failure to institute criminal proceedings

48
- Art 35: When a person, claiming to be injured by a criminal offense, charges
another with the same, for which no independent civil action is granted in this
Code or any special law, but the justice of the peace finds no reasonable
grounds to believe that a crime has been committed, or the prosecuting attorney
refuses or fails to institute criminal proceedings, the complainant may bring a
civil action for damages against the alleged offender. Such a civil action may be
supported by a preponderance of evidence. Upon the defendants motion, the
court may require the plaintiff to file a bond to indemnify the defendant in case
the complaint should be found to be malicious.
If during the pendency of the civil action, information should be
presented by the prosecuting attorney, the civil action shall be suspended until
the termination of the criminal proceedings.
This article refers to all cases in which civil code gives an independent
civil action. It concerns all criminal cases, except those in which the civil code
gives an independent civil action, such as defamation, fraud, physical injuries
and violation of constitutional rights.
Meaning: If that justice of the peace or prosecuting attorney finds that no
crime can be proved and therefore, the case should be dismissed, the aggrieved
party may nevertheless bring a civil action for damages against the alleged
offender, which action may he supported by a preponderance of evidence.

III. WOMENS RIGHT AND FAMILY SOLIDARITY

I. LIBERALIZATION OF MARRIED WOMENS RIGHTS


1. Emancipation of Married Women.
Old: Married woman limited legal capacity
New: liberalized the rules concerning married womens rights.
- Art.39, paragraph 2: A married woman, twenty-one years of age or over, is qualified
for all acts of civil life, except in cases specified by the law.
- Art. 114 (married woman needs the consent of her husband) :The wife cannot,
without consent, acquire any property by gratuitous title except from her ascendants,
descendants, parents-in-law, and collateral relations within the fourth degree.
2. Profession of Business
Old: Wife could not engage in any business without the husbands express or implied
consent.
New:
- Art. 117: The wife may exercise any profession or occupation or engage in
business
The husband may object provided: (1) His income is sufficient for the family,
according to its social standing (2) His opposition is founded on serious and valid
grounds
In case of disagreement on this question, the parents and grandparents
as well as the family council, if any, shall be consulted. If no agreement is still
arrived at, the court will decide whatever may be proper and in the best interest
of the family.

49
Ex: The wife should not become the business partner of another man where the
nature of the business requires that they should travel together out in the
provinces.
3. Alienation of Real Property
- Art. 166: husband cannot alienate or encumber any real property of the conjugal
partnership without the wifes consent. If she refuses unreasonably to give her
consent, the court may compel her to grant the same.
Ex: The husband should want to sell a piece of land of the conjugal partnership
because he intends to donate the price to his sweet querida or bright plumed
kulasisi, the wifes refusal to give consent would be quite reasonable.

4. Abuse of Administration
- Art. 167: In case of abuse of powers of administration of the conjugal partnership
property by the husband, the courts, on petition of the wife, may provide for a
receivership, or administration by the wife, or separation of property.
Old: The wife could not interfere with the administration of the conjugal partnership
by the husband during the existence of the marriage.
New: Authorizes the wife to ask the court for receivership, or separation of property,
or administration by the wife.
5. Abandonment
- Art. 178, (3): If the husband has abandoned the wife without just cause for at least
one year, she may petition the court for a receivership, or administration by her of the
conjugal partnership property, or separation of property.
6. Administration of the Partnership by the Wife
- Art. 168: The wife may, by express authority of the husband embodied in a public
instrument, administer the conjugal partnership property.
Ex: In other families, the wife looks after the cultivation of the lands and manages
the store owned by the family, while the husband enjoys himself playing hocus-
pocus in politics.
7. Complete separation of property between husband and wife
- Art 212 provides that the future spouses may agree in the marriage settlements that
their property relations during marriage shall be based upon the system of complete
separation of property.
New: authorizes and regulates the system of complete separation of property
8. Affairs of the Household
- Art. 115 the wife manages the affairs of the household.
9. Joint Parental Authority
Old: father alone exercised parental authority
New (Art.311): The father and mother jointly exercise parental authority over
their legitimate children who are not emancipated. In case of disagreement,
the fathers decision shall prevail, unless there is a judicial order to the contrary.
10. Investigation of Paternity
- Art. 283: investigation of paternity is allowed and any proof, admissible under the
general principles of evidence, may be presented to show paternity.
11. Custody of a Baby

50
- Art. 363: No mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measure.

II. SOLIDARITY OF THE FAMILY


1. Family as foundation of society.
Art. 216: The family is a basic social institution which public policy cherishes and
protects.
Art.218: No custom, practice, or agreement which is destructive of the familyshall be
recognized or given any effect.
Art 219: Mutual aid, bothmoral and material, shall be rendered among members of
the same family.
Art 221 which specifically outlaws certain agreements. The following shall be no void
and of no effect:
- Any contract for personal separation between husband and wife
- Every extra-judicial agreement, during marriage, for the dissolution of the
conjugal partnership of gains or of the absolute community of property between
husband and wife.
- Every collusion to obtain a decree of legal separation, or of annulment of
marriage.
- Any simulated alienation of property with intent to deprive the compulsory heirs
of their legitime.

2. Need of Compromise
Art 222: No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been made,
but that the same have failed, subject to the limitations in Art. 2035.
To minimize the deterious social effect of lawsuits between members of the same
family.
Art 98: In every case the court must take steps, before granting the legal separation,
toward the reconciliation of the spouse, and must be fully satisfied that such
reconciliation is highly improbable.
Art 2268:Suits between members of the same family which are pending at the time
this Code goes into effect shall be suspended under such terms as the court may
determine, in order that a compromise may be earnestly sought, or, in case of legal
separation proceedings for the purpose of effecting, if possible, a reconciliation.
3. Judicial Intervention in Family Matters
Art 116: When one of the spouses neglects his or her duties to the conjugal union or
brings danger, dishonor or material injury upon the other, the injured party may apply
to the court for relief. The court may counsel the offender to comply with his/her
duties, and take such measures as may be proper.
4. The Family Home
2 purpose: (1) To exempt family home from execution, forced sale or attachment, save in
a few cases
(2) To require the consent the majority of the family before the person
constituting the family home may dissolve the same, or to require judicial approval in
case the family home is sold, alienated or encumbered.

51
Old: Only kind of home which was exempted from execution was that whose value did
not exceed P300
New:A family home consisting of land and house may be established, provided it is worth
not more than P30,000 in chartered cities, or P20,000 elsewhere.

- A family home is exempt from execution, forced sale or attachment except for
(1) Non-payment of taxes
(2) In satisfaction of a judgment on a debt secured by a mortgage constituted on the
immovable before or after the establishment of the family home.
- If family home is extra-judicially created, though recorded in Registry of Property,
family home is exempt from seizure, except:
(1) For non-payment of taxes
(2) For debts incurred before the declaration was recorded in the Registry of
Property
(3) For debts secured by mortgages on the premises before or after such record of
declaration
(4) For debts due to laborers, mechanics, architects, builders, materialman and
others who have rendered service or furnished material for the construction of
the building.
Art. 234 (compulsory establishment of a family home) :When there is a danger that
a person obliged to give support may lose his or her fortune because of grave
mismanagement or on account of riotous living, his or her spouse, if any, and a
majority of those entitled to be supported by him or by her may petition the CFI for
the creation of the family home.
5. The Family Council
Old: there was a family council, but its powers were limited to matters regarding
guardianship
New:Art 252: shall advise the court, the spouses, the parents, guardians and the
family on important family questions.
6. Grandparents
Art 312: Grandparents shall be consulted by all members of the family on all
important family questions
7. Divorce
Original draft of the new code: Commission recommended continuation of absolute
divorce on the same ground laid down by the old divorce law, namely adultery on the
part of the wife and concubinage on part of the husband.
However, original draft proposed revival of relative divorce with one ground: adultery
on the part of either spouse.
Abolished absolute divorce and authorized only relative divorce or legal
separation, but added a new ground, namely, an attempt by one spouse
against the life of the other.
Code committee: Original draft on divorce be restores in amendment to the new
Civil code.

IV. THE PHILOSOPHY OF SOME REFORMS INTRODUCED BY THE CIVIL CODE

52
1.) Damages in cases of intentional injury when the act, though not against positive law, is contrary
to morals, good customs or public policy
a. Article 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
i. There is no positive law that has been violated, but there are three requisites:
damage, the act must have been willful and that it must be contrary to good
morals, good customs or public policy.
ii. Every good law draws its breath of life from morals, from those principles which
are written with words of fire in the conscience of man.
iii. The moral law and the law of the State have the same object and purpose, and
together they govern human aims and conduct, which constitute human society
itself.
iv. The effect of the innovation in Article 21 is to give relief for every intentional
wrong which causes damage, even if no statute has been violated.
v. Public policy was added to the provision, though not found in its origin, Article
826 of the German Civil Code. This is because it is of supreme concern in to any
country. If a man in defiance of a declared policy of the State causes loss or
damage to another, he should pay indemnity, though his act is not contrary to a
statute.
2.) Independent civil actions
a. Article 33, authorizing an independent civil action for defamation, fraud or physical
injuries. These actions correspond, respectively, to the Anglo-American torts called libel
or slander, deceit, and assault and battery.
b. Article 32, which creates a civil action, separate and distinct from the criminal action, in
case of violation of individual liberties guaranteed by the Constitution, such as freedom of
religion, speech, and of the press, freedom from illegal detention, freedom from
unreasonable searches, freedom of suffrage, etc.
c. Article 26, which establishes a separate civil action to protect ones privacy and private
life, etc.
d. Article 27, which gives a right of independent civil action against a public servant or
employee who refused or neglects, without just cause, to perform his official duty.
e. Article 34, which creates a civil suit against a policeman who refuses or fails to render
aid to any person in case of danger to life or property.
Reasons why an independent civil action should be allowed in the five instances mentioned:

1. Conviction in a criminal case requires proof beyond reasonable doubt, while in a civil
case, preponderance of evidence is enough on which to base judgment for the plaintiff.
Under the old law, the aggrieved party was precluded from subsequently suing for
damages in a civil case.
2. Not infrequently, the Fiscal under political pressure or other undue influence, would not
start criminal proceedings. Or he might have been too busy with other cases. So the new
Code assured the injured person an opportunity to prove his case by a preponderance of
evidence in a civil case, and thus obtain relief.
3. People have been habituated to rely on the public prosecutor to obtain justice. This has
smothered civic spirit, self-reliance and individual initiative. We should educate our
people to vindicate their rights in a civil rather than in a criminal action, and thus assert
their individual rights, so they do not have to depend on the Fiscal.

53
Quasi-delict:

f. Article 2177. Responsibility for fault or negligence under the preceding article is entirely
separate and distinct from the civil liability arising from negligence under the Penal Code.
But the plaintiff cannot recover damaged twice for the same act or omission of the
defendant.
Separate civil actions:

g. Article 29. When the accused in a criminal prosecution is acquitted on the ground that
his guilt has not been proved beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires only a preponderance of
evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond
to answer for damages in case the complaint should be found to be malicious. If in a
criminal case the judgment of acquittal is based upon reasonable doubt, the court shall
so declare. In the absence of any declaration to that effect, it may be inferred from the
text of the decision whether or not the acquittal is due to that ground.
h. Article 35. When a person, claiming to be injured by a criminal offense, charges another
with the same, for which no independent civil action is granted in this Code or any special
law, but the justice of the peace finds no reasonable grounds to believe that a crime has
been committed, or the prosecuting attorney refuses or fails to institute criminal
proceedings, the complaint may bring a civil action for damages against the alleged
offender. Such civil action may be supported by a preponderance of evidence. Upon the
defendant's motion, the court may require the plaintiff to file a bond to indemnify the
defendant in case the complaint should be found to be malicious. If during the pendency
of the civil action, an information should be presented by the prosecuting attorney, the
civil action shall be suspended until the termination of the criminal proceedings.

3.) Strengthening of democracy


a. Article 358. Every parent and every person holding substitute parental authority shall see
to it that the rights of the child are respected and his duties complied with, and shall
particularly, by precept and example, imbue the child with highmindedness, love of
country, veneration for the national heroes, fidelity to democracy as a way of life, and
attachment to the ideal of permanent world peace.
b. Article 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;

54
(12) The right to become a member of associations or societies for purposes not
contrary to law;
(13) The right to take part in a peaceable assembly to petition the government for
redress of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from
being forced to confess guilt, or from being induced by a promise of immunity or
reward to make such confession, except when the person confessing becomes a
State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the
same is imposed or inflicted in accordance with a statute which has not been
judicially declared unconstitutional; and
(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely
separate and distinct civil action for damages, and for other relief. Such civil action shall proceed
independently of any criminal prosecution (if the latter be instituted), and mat be proved by a
preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or
omission constitutes a violation of the Penal Code or other penal statute.

4.) Implementation of social justice


a. Article 24. In all contractual, property or other relations, when one of the parties is at a
disadvantage on account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be vigilant for his protection.
b. Article 1700. The relations between capital and labor are not merely contractual. They
are so impressed with public interest that labor contracts must yield to the common good.
Therefore, such contracts are subject to the special laws on labor unions, collective
bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor
and similar subjects.
c. Article 1701. Neither capital nor labor shall act oppressively against the other, or impair
the interest or convenience of the public.
d. Article 1702. In case of doubt, all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for the laborer.
e. Article 1703. No contract which practically amounts to involuntary servitude, under any
guise whatsoever, shall be valid.
f. Articles 1689 to 1699, intended to protect househelpers.
The mainspring of the principle of social justice is to remove mans inhumanity to man. All sound
and just legislation must be based on love of mankind.

55
5.) Supremacy of equity and justice as against technicality and legalism
The Code Commission introduced the following principles of equity jurisprudence found in the
English and American system:
1. Reformation of instruments. (Articles 476 1359 1369)
2. Quieting of title. (Article 476 481)
3. Implied trusts. (Articles 1447 1457)
4. Recovery upon substantial performance of a contract. (Article 1234)
5. Recovery in case of unjust enrichment. (Article 22)
6. Reduction of contractual penalty if it is iniquitous or unconscionable. (Article 1229)

V. THE INDEPENDENT CIVIL ACTION UNDER THE NEW CIVIL CODE

The motivation that impelled the Code Commission in taking a bold and forward step of creating
independent and separate civil actions:

1.) Compelling urge for justice, which should be at the very foundation of every law or decision.
The end sought in the criminal case is repression or punishment of the offense against the
State, while the purpose of the civil action is indemnity for private and individual loss. It is
therefore a grievous injustice to make the private indemnity depend upon the outcome of the
criminal case, which requires a higher degree of proof, that is, evidence beyond reasonable
doubt.
2.) To foster that spirit of rugged individualism, which is the very life and soul of democracy in
England and America. When an Englishman or an American is unlawfully arrested, or is
injured through anothers negligence, he usually goes to his own lawyer in order that a civil
action for damages may be filed. The victim does not rely on the criminal action because
what he wants is indemnity for damages suffered. In this way, they have developed self-
reliance and do not have to depend on the attitude of the prosecuting attorney who may be
too busy, or may be mistaken in his opinion, or in a few cases, he may not have enough
courage to file a criminal action.

LYNCH
CHAPTER 3: FOREIGN INFLUENCES IN THE PROVINCES: ENCOMENDEROS, GOVERORS,
PRIESTS, AND BUSINESSMEN

Encomenderos
- A type of crown grant given to reward and induce individuals during Spains war of recovery of
territory
- Possessed a royal grant to collect tributu (tribute) from natives
- Function:
- Maintain law and order within his jurisdiction,
- protect the people from their enemies,
- come to their aid in their necessities
- Provide them with opportunity to learn the Christian faith
- Fight with the friars: Augustinian friars were moved to make vigorous denunciations of the
injustices which arose from the tribute collection which helped prompt the convocation of the
ecclesiastical synod in Manila during 1582
- Result:

56
- tribute was not to be paid in scarce commodities,
- children not to be compelled to pay the tribute of a dead father,
- Encomenderos not to trade with the natives or employ their labor unless a just price or
wage was paid
- How the problem was decided by the crown:
- Compromise
- An ordinance was issued that sanctioned the collection of tributes in
encomiendas lacking religious instructions
- of the assessed tribute was to be left and freely surrendered to the Indians
- This fund was used mainly to finance, at the governors discretion, health care
and other charities on behalf of native peoples.

Provincial officials/Alcaldes Mayor and Corregidores


- Usually appointed officers
- Corregidores = military
- They exercised executive, judicial, and military functions in their respective areas.
- Charged with ensuring that colonial laws were implemented.
- Empowered to utilize armed force within their jurisdiction.
- Possessed supervisory responsibilities, over more local level officials
- Abuse: alcalde to receive the produce at a ruinously low valuation which was then reported to
Manila authorities, the difference being the illicit profit made.
- Important changes
1. Requirement to be alcalde tightened
- Criteria for ranking provincial governments according to size or amount of
revenues paid into the colonial officers, and for ranking provincial leaders on the
basis of official seniority.
- Qualifications for becoming an alcalde also became more stringent and included
the requirement that every alcalde should be a lawyer or have at least 2 years
experience in a law office
- Further narrowed qualification: lawyer/judges who had served as a lieutenant-
governor
2. Separation of Judicial Power
- Office of Civil Governor was created and the powers and duties of the three
Manila alcaldes were limited to the administration of justice.
- Similar restraints were imposed on the provincial alcaldes mayors.
- Transformed the alcaldes into judges of the Courts of First Instance.
3. Separation of Judicial and Executive functions in the provincial governments was
completed
- Justice of the peace with civil and criminal jurisdiction to be established in all
provincial capitals
4. Establishment of the guardia civil
- The guardia civil had jurisdiction over violation of colonial laws and municipal
ordinances.
- Could make arrests on mere suspicion, confessions were often induced by
torture, and many prisoners were killed.

Ecclesiastical Officials
- Jurisdictional conflicts arose between church authorities and the secular colonial officials

57
- In response of the shortages of priests, the Crown encouraged the training of native clergies
- Most native priests were trained to serve in positions subordinate to the foreign clergy.
- Accounts of the performance of the 18th century indio and mestizo clergies were often negative.
- Formal education opened the eyes of many native and mestizo seminarians to the buses which
characterized Spanish colonialism.
- At the instigation of Spanish friars, three native priests, Jose Burgos, Mariano Gomez, and
Jacinto Zamora, were labeled as leaders of the uprising.
- Filipino nationalism emerged on that fateful morning.

LYNCH: CH 4: NATIVE ACTORS COLLABORATORS, ENTREPRENEURS, AND PROTO-


NATIONALISTS
Principalia
- native/mestizo elite
- a pool of local leaders from which colonial officers appointed gobernadorcillos and cabezas
de barangay
- intermediaries between the indios and their colonial overlords
- collects taxes, direct labor gangs, leading native troop contingents
- until 1786, membership is inherited by sons of traditional leaders, others thru successful full
term as gobernadorcillos and cabezas de barangay
- drew their primary legitimacy from within their respective communities
- after 1786, membership conditioned on collaboration with the colonists
o only leading members of the community can participate in local election of native
officials
o principal anyone of means, not just inherited
- reduccion or resettlement natives living in compact and accessible areas
- Municipal Reform Decree of 1847 membership in principalia legally limited to present and
former municipal and barrio officials
- Unimplemented municipal law of May 1893 expanded definition of principalia included all
men who pay at least P50 in land taxes, decorated personnel, teachers, and Captain of
Cuadrillos or rural guards
Municipal Leaders/Gobernadorcillos (petty governor)
- Highest colonial office for natives and Chinese mestizos
- Gobernadorcillos subordinate of their alcaldes
o Agent of the principalia (governing the corporation of the pueblo)
- Chief native representatives of the colonial regime
- Municipal finances were centralized and administered by the alcaldes
- Legislation did not materially affect the basis or functions of municipal government
o The decrees were pointless efforts
- Once selected, person was obliged to serve
o Reason for declining: old age, ill-health, extreme poverty
- No local official is removed without the permission of the Audencia
- Spanish rule in the PH: indirect from municipal level down
- Election after 1847 happens evert April 1
o Meeting of all members of principalia in the municipal hall
4 categories
Incumbent gobernadorcillos and cabezas
Former gobernadorcillos
Former cabezas in position for at least 10 years

58
Other former officeholders
o Sorteo or casting of lots
Selection of 12 people, along with current gobernadorcillos would elect/re-elect
the next mayor
Electors picked by lot, 6 ex- gobernadorcillos & ex- cabezas, 6 from incumbent
cabezas within the municipal parameter
o Qualifications: required to read, write, and speak Spanish, ex- cabezas or ex-teniente
mayor/deputy gobernadorcillos
st nd rd
o Written ballots for 1 & 2 choice, sometimes even 3
o Oral votes for 4 other municipal officials: deputy mayor, chief of police, superintendent
of fields who kept watch over boundaries of cultivated land, superintendent of
livestock who looked after the branding of livestock
- Primary responsibility of gobernadorcillos collecting tribute
o Exempted from payment of tribute and other taxes
o Exempted from forced labor
o Entitled to .5% of total tribute collection but often kept more
o Liable for shortcomings in collections
Punishment: Imprisonment and confiscation of property
- Primary reason for office: personal enrichment and status
- Used priests to interpret and implement colonial laws
o because most native officials are not proficient in Spanish
o priests interpret laws that would best promote religious than temporal interests
- used quasi-official directorillo or papelista for paperwork
- Municipal (Maura) Law council of 12 electors chosen by principalia, parish priest, and
outgoing gobernadorcillo
o To elect the gobernadorcillo (later renamed to municipal-captain) and 4 lieutenants
Comprise a tribunal sharing powers with the council
- Municipal government empowered to levy own tax for its maintenance
Barrio Leaders/cabezas de Barangay
- Leader of a barrio (average size = 30 families)
- Primary responsibility: collect taxes, kept 1.5% of total collection
o Did not receive salaries
o Post bond or security for shortage of tax collection
o During incumbency, wives and eldest sons exempted from tribute
- Abolished hereditary succession in favor of elections by the principalia
- The decision to rely on Spaniard-approved individuals in office eroded the communal
solidarity within the village, institutionalized the transfer of allegiance by local elites to colonial
regime
o Instead of deflecting Spanish intentions, local elites increasingly reflected them
o Reinforces by decree saying that important barrio officials must read, write, and speak
Spanish
Chinese/Chinese-Mestizos
- Merchants from Fukien province trading with communities even before the Spaniards arrived
- The arrival provided new opportunities
- Expulsion orders Chinese outnumbered Spaniards by 20:1
o Designed to limit size of Chinese community to 6,000
o Helped hold down population to 20K, half were in the Manila area

59
o Initially, segregation of non-Catholic Chinese which enabled many ethnic Chinese to
retain separate cultural identity
Ensured to contain the threat the posed by their numbers
Promotion of conversion of Chinese
Incentive to convert live away from watch of Manila Spaniards
Encourage Chinese to marry locals
Many Chinese assimilated into native cultures
Offspring identified with the PH and Spain, not China
Cultural assimilation direction toward hispanized Philippine culture,
not pure indio culture
- Most important social phenomenon: rise of the Chinese mestizo
o Repealed expulsion law to enable full-blooded Chinese to return to countryside and
urban centers
rd
o Created 3 tribute paying class for the growing mestizo Chinese
Provincial and municipal elites
- 3 native social classes
o Landed aristocracy
o Middle class
o Peasant class
- 4 categories to identify who wielded more power and influence
o Provincial elites most influential
Competed for mid-level positions
Employment in insular bureaucracy thru appointment need backing of
influential sponsor and some educational attainment
Medicine or civil law
politics of patronage
o Municipal elites
o Urban aristocracies most influential
o Urban middle sectors
Los ilustrados
- Learned young native-mestizo men most from Luzon and urban areas in visayas
- Formally educated at university level (preferably abroad)
- Exposed to some western thought and materialism
- Jose rizal, graciano lopez jaena, marcelo h del pilar
o Became lobbyists for reform within the colonial regime
o complete assimilation of Filipino and Spaniard, the former enjoying the rights
guaranteed to him as a Spanish citizen
o Spaniards in PH elected delegates which came too late to join in the proceedings of
the Spanish Cortez
- Reform campaign was a substantial failure because ultimately, Spain refuse to grant equal
rights to indios and mestizos
- They stirred up nationalist sentiments among the masses by focusing on friar abuses

Lynch Chapter 5: Emergence of the Documented Property Regime

Legal Landscape_____________________________________________________________
No European government asserted that Indians had no claim at all to their lands, they just questioned the
sort of title and political jurisdiction native rulers possessed.

60
Principle of Individual Ownership
-primary innovation introduced by Spaniards
- land can be exclusively owned by individuals
2 types of private property rights:
1. Customary rights predicated on usage and possession
2. Crown lands comprised all areas not used or occupied by the natives
Maura Law withdrew th privilege to register rights
Land laws disconnected, complicated, confused mass because the Spanish government kept no
systematic records of agricultural lands and a fire destroyed the main repository of documents for
property rights.
No records bec: Taxes were not levied on land but on people (tribute), produce (vandala), income
(industrial) and buildings (urbana) instead
When the tribute was abolished, a graduated pol tax or cedula personal replaced it. Cedula personal is a
certificate of identification possessed by every Christian.
Those unable to pay taxes were subjected to forced labor or polo.

Customary Rights____________________________________________________________
-Customary rights landed property originated mainly through the right of occupation by the possessor
and his rendering the land productive
-Communal customary rights were considered inalienable because of the absence of legal machinery for
documenting community based property rights which resulted to the illegal usurpation by Spaniards,
natives and Chinese Meztiso elites.

Emperor Don Carlos ordered that all laws which are in favour of the Indians should be executed
notwithstanding appeal including Ordinance 8 which prohibited he taking of native propertied,
farms, livestock and fruits unless the sales and ransoms are done voluntarily and entirely free.
King Phillip II emphasized that land apportioned among colonists should not include the private
property of Indians and for the Spaniards to establish themselves somewhat distant from the
districts and locations of Indian settlements
Manuel Bernalez claimed that native land rights, based on tradition and deposition of witnesses,
prompted controversy in litigation thus he obliged all people to acquire official documentation of
their ownership for both private and communal properties. This effectively converted indigenes to
squatters

Crown Lands/Terrenos Realengos _____________________________________________


Crown lands lands that are not owned pursuant to customary laws belong to the Crown

Various modes were established for granting rights to royal lands


1. Titulo real through royal grant
2. Titulos de concesion especial or extraordinario based on special, documented grants awarded on
the discretion of the governor
3. Titulos gratuito awarded to settlers and some natives through apportionment

*the grant does not give real ownership, only the right to use and the right to fruits because the lands may
revert back to the Crown

61
-Individuals could pass on their rights to legitimate heirs but sales were proscribed without the consent of
the audencias fiscal

Royal Grants________________________________________________________________
-Grants were made on behalf of soldiers, colonial officials, ordinary Spanish citizens, and native leaders
-titulos de concesion especial o extraordinario were the most common royal grant given to soldiers and
other colonel officials or subjects because of meritorious service
-most lands covered by royal grants are within or near Manila
-main native beneficiary of royal grants are Kapampangan because of their loyalty

Why were royal grants discontinued?


-Those awarded with royal grants failed to cultivate agricultural and grazing lands which
contributed to food shortage in Manila

Church Estates_______________________________________________________________
-Initially there was a royal prohibition against and ownership by religious institutions but because of
Bishop Salazar, it was revoked.
-Ecclesiastical estares became the largest land apportionments
-Primary modes of acquisition wich were usually illegal and initated by the native leaders: 1. purchase
2. donation

Ancestral Domains___________________________________________________________
Audencia responsible for seeing that customary property rights were respected and that possession of
illegally sold and donated lands were returned to the rightful owners
- unsuccessful

Illegal conveyances were conducted by traditional tagalong leaders, meanwhile friar estates continued to
expand
Reports on flagrant abuses prompted the decree of a royal cedula instructing to investigate on the said
abuses. Juan de Sierra ordered friars to produce proof of their ownership but the friars did refused until
he was replaced by
Juan Ozaeta y Oro which repudiated Sierras actions and made peace with the firars

Why didnt the Spaniards just permitted the deprivation of lands of the natives:
1. threats imposed to peace and order
2. tributes constituted an important source of revenue thus total deprivation woul affect the financial
viability of the colony

CHAPTER SIX: Agricultural Intensification and the theoretical Extinguishment of Ancestral Domain
Rights

Rise of Mono cropping and Production Intermediaries


Bourbon Kings of Spain were eager to make the colonial endeavors economically profitable, hence they
placed less emphasis on religious proselytization and protection of native land rights
Royal Decree of 1974 outlined various modes for acquiring and conveying land rights within Spanish
colonies

62
o Justified long and continuous possession was sufficient basis for recognition of native
ownership.
o Indigenes need not possess documentary titles in order for their land rights to be
recognized Proof of ancient possession was sufficient
o Decree was ineffective and illegal usurpations of ancestra domains continued
In the same year the ordinance of Roan was enacted great importance to the state that the Indians
have the necessary lands
o Territory of native reductions and villages became communal
o Expressly prohibited sale of customarily held lands unless permission was secured
Subsequent governors were not sympathetic to native land rights focused on economic and agricultural
development
o Gov Gen Basco y Vargas concentrated on developing natural resources of the country
and attempted to implant principles that would favorably affect agriculture and industry
o Basco published a general economic development plan designed to stimulate and
encourage private enterprise through agricultural intensification of the issuance of
monopoly licenses for coffee, spices, indigo, tobacco and other crops
o Tobacco was immediately profitable. Sugar contributed to the regimes growing
prosperity
o Although developments boded well for the regime, few natives benefited.
o The Commercial export economy encouraged by Basco was crucial for the appearance
of rural estates. It foreshadowed an increase in the concentration of landownership and
sharecroppers
o Hacenderos, a new breed of large landowners, could not manage estates without
outside help. They leased a portion of their estates to the inquilines(fixed-rent tenants)
who then sublet the land to kasamas (sharecroppers)
o Land allocation was pernicious to the people who actually worked on the land
o Overall, progress in export-oriented agriculture was sporadic
o Subsistence farming was displaced by production for foreign markets, and control over
resources was concentrated in the hands of a few
Penultimate Century
Four distinct classes of estate proprietors
o Religious most considerable
o Spanish Entrepreneurs largely limited to trade and financing
1
o Principal Mestizos and Indians (caciques ) real body of farming proprietors
o All other natives
The economic clout of the mestizos became so pronounced that one believed that they would take over
half of the colony
Many land rights acquired by mestizos were at the expense of traditional indigenous elites
2 new phenomena:
o Emergence of production intermediaries correlated with an even more common
incidence of absentee ownership no longer had personal contact with tenants
o Landless Laborer
Negros Hacenderos reaped enormous profits and many large landowners led opulent lifestyles while their
tenants lived in squalor

1
Cacuquismo orginally referred to traditional native leaders in Haiti, Spanish officials extended it to native leaders. Soon
became synonymous with municipal and provincial landowners

63
When global market for sugar shrunk, hacenderos severed ties with tenants and began to employ day
workers
Century was also characterized by the opening up for cultivation of large forested plains in Central Luzon
and Western Visayas
th
Throughout the 19 century prominent families devoted a large portion of their energies to the
accumulation of agricultural propertiesthis led to the wholesale dispossession of village populations
o Modus operandi: took advantage of inderdicto de despojo (summary deprivation) by
which they would present false claims based on fake documents, then bribed and
coerced witnesses and judges
Pacto De Retroventa
Pacto De Retroventa primary means by which owners-cultivators lost their land during the last century.
It was a usurious mortgage interest rates varied from 12-24%
Privately owned, undocumented land rights were used as collateral for loans of less value
Cash starved mortgagors were frequently unable to pay back the money loaned, plus interest, in a timely
fashion
Colonial government passed a law against the use of pacto by chinese and chinese mestizos in 1768
Basco later condemned the use of pacto
By 1866 effects of pacto were profound, and it later became a major headache to Spanish judicial
officialdom because mortgages were piled on top of each other that it became impossible to determine
who actually had the rights in question
Pacto was later given an official sanction in the civil code of 1889 a pacto was deemed to last for only 4-
10 years. If money loaned was not paid, the lender acquired ownership as collateral.
Land Registration
Land registration was considered a prerequisite for capital investment and the rapid expansion of
agricultural production for commercial export
Many owners and would-be owners had begun to have their property transactions notarized
Early efforts were motivated by desire to secure the rights of creditors whose loans were guaranteed by
land
1563 king ordered than an office of escribania de cabildo be established in Spanish colonies to register
all appointments in municipal councils
1804 A mortgage office was established in Manila
1838 A royal order required all public documents pertaining to land be registered in the contaduria
Mortgage registration generated little political opposition since it posed no threat to elite interests
ensured that investment was protected
But the church and other sectors of the elite opposed comprehensive land registration and the issuance
of documentary titles based on mere possession
Royal decree of 1880 heralded modern land registration imposed limits on the size of lands that could
be acquired by purchase or composicion (limits were 1000 hectares on arid lands, 500 hectares on lands
with trees, and 100 hectares on irrigable lands)
All registrations made by the directorate of civil administration was recorded in a compilation referred to
as the Tomas de Razon and published in the Gaceta de Manila
Registration petitions were referred to as expedients
o First category areas < 10 hectares, handled in municipal level by juntas local
o Second category areas between 10 and 50 hectares, fell under provincial boards of
royal land adjustments
o Third category all applications > 50 hectares, forestry department retained jurisdiction
o Scheme was hampered by a shortage of licensed surveyors, employed unlicensed ones
who were dishonest and incompetent

64
o Spanish government later recognized that the registration processes were not working
limited jurisdiction of provincial boards to <30 hectares
o People later abandoned efforts for registration and contented themselves with just
staying on the land (simple squatters)
Native and mestizo elites continued to lobby for more efficient means to document their claims so they
could use land as collateral successful when registration offices were set up in several pueblos in the
1890s
1893- Spanish mortgage law became effective in the Philippines, should have been called registration law
since its primary purpose was to establish a new system of registration which guarantees the stability of
ownership and possession
o provided for comprehensive registration of all existing rights and possessory
claims
o owners who lacked recorded title of ownership could register during an
incripcion de informacion posesoria (record of possessory information) by a
nearby court of first instance or municipal court (inscripcion was a record of
possession)
Maura Law
o Uneven Spanish impact, abuses by colonial officials, absence of effective notice, illiteracy, and lack of
money kept most people unaware of, and without access to registration/documentary processes
o Maura Lawlast official attempt to address disarray in the documented property regime by imposing a
registration deadline
o Maura Law was the last law pertaining to land enacted by the Spanish regime to insure to the natives the
necessary land for cultivation in accordance with traditional usages
o Those whose applications for possessory information titles were pending were given one year to secure
documentation
o The Maura law theoretically empowered the colonial regime to deny legal recognition of customary
property rights. The immediate effect was to disenfranchise several million rural farmers
o Demonstrated the colonys insensitivity to the plight of the natives

V. COMMON LAW AND COMMON CONCEPTS

Agabin Chapter 5: The Common Law: Uncommon tool of Colonialism

Nature of Common Law


Most uncommon tool for colonialism because the system is supposed to spring from the spirit of
the people; it is not an imposition from above, but an emanation from the subjects who are
governed by it.
English law owes much of its stability and flexibility to the fact that the state has not attempted to
arrogate to itself the role of exclusive lawmaker (In contrast to Roman Law, which is
authoritatively imposed)
According to Pound, common law is a mode of judicial thinking, a mode of treating legal problems
rather than a fixed body of definite rules.
Common law is a body of judge-made law based on the good sense of judges who can discern
justice on a case-to-case basis.
Its main reasoning tool is inductive logic, in contrast with the civilian system that uses deductive
logic.
Origins of Common Law

65
Wigmore divides the story of Common law into 3 periods
1st period: building of common law
2nd period: rejected roman law
3rd period: expansion and cosmopolitanization of the system
But, start with a brief survey of the settlers who overran England after the fall of the mighty
Roman empire in the west --These were the angles, saxons, danes, and norsemen.
SImilarities between the history of ancient Filipinos and Anglo-saxons:
Both reached the country by travelling in shallow draft keels. When they arrived they
were pure heathens worshipping deities and ancestor spirits.
Organized in tribes and could not understand the other's language
Adept at fishing and sea-craft but also knew a lot about rearing cattle and primitive
agriculture
Later colonized by foreign powers from the European continent
Most obvious similarity from these parallels is the growth of law from custom and tradition
Source of primitive law is strikingly similar between England and the Philippines
It started with the fear of the supernatural -- the law of natural man is supernatural law. From
these ceremonies grew customs, and later traditions.
When England was colonized by a monarch from the continent, he was the one who
systematized their legal system and centralized their administration of justice. The Normans were
less civilized (no written laws) but they were wise enough to let the English keep their own laws.
The Normans also introduced one institution which the Spaniards also imposed: the feudal
system, which became the foundation of our system of colonial government.
Difference in the imposition of feudalism: In England, tribalism trumped feudalism. In the PH,
feudalism overwhelmed the tribalism of the Filipinos.
Another similarity was the introduction of Christianity. For the English, Christianity was re-
introduced after the barbarians that invaded had been converted. The influence of the Church
began to make itself felt in the making of laws.
Another similarity was that the law imposed on subjects was expressed in a foreign language and
administered by colonizers. For the English, it was french laws. For the PH, the influence of Islam
was far reaching.

The rise of property rights under Feudalism


In both PH and England feudalism became the basis of land rights.
With the demise of the Roman empire and the decline of the Frankish kingdom, feudalism
became the dominant political ideology and social system in the west. It was a military system
that gave land as a reward, and it represented the privatization of power.
Hence, public laws took on a patrimonial character, and customs became the object of
transactions.
The lord derived his power from the authority of a distant king and from his possession of land
Most important symbol of power: the boundary marker, the barrier, and Salic law (penalized the
removal of a boundary marker with amputation of an arm)
2 well-marked effects: (1) stamped law as a local institution and (2) gave rise to judgment by
peers.
Normans introduced medieval concept of feudalism (so complete that the rights of feudal lords
was seen more as the right of property rather than rulership). Feudalism by William the conqueror
attained sufficient uniformity to give rise to a doctrine which formed part of the common law. The
place of feudalism as a factor in the development of common law was made secure.

66
The Influence of Common Law
Canon law was unlawful law for the early Christian societies had an illegal, if not criminal purpose
When the Roman empire fell the manipulative popes stepped into the vacuum of power after they
succeeded converting heathens to christians
Canon law was a revelation of the will of God as expressed by the popes and councils. This
gave the popes and councils moral and political influence over caesars and feudal barons.
Power of the popes over barbarians was so great that they later purported not only to discover
the law but also make the law themselves.
The sweeping acceptance of decrees, statutes, and codes was such that some bishops resorted
to fraud and forgery to acquire power. (ex. Hispana)
By the 12th and 13th century, the church had grown big enough to dominate the power of the
barbarian kings. It was the papacy that led to the Norman conquest of England in 1066.
It was pope that helped secure crown for King William, which he had to faithfully redeem and
which led to the rapid development of canon law in England.

Development of the Law Merchant


Law merchant was founded in Roman law
Development of sea routes opened up avenues for the development of customary law of
international trade
Merchant class insisted on universal rules to protect them from arbitrary treatment by national
tribunals
Refused to visit foreign town unless there was a court merchant to administer the law

Legislation by Parliament
Legislation started from the practice of kings giving instructions to their judges who would roam
the countryside and institute new methods of procedure
Magna Carta--oldest statute; formulation of duties in their jural relation of the king to his tenants in
the age of feudalism
Making of statutes came with the establishment of parliament
Zest of Norman rulers for centralized administration gave rise to the profession of law in the early
1300s

The English concept of equity


Equity as a remedy against draconian enforcement of law
Roman law adopted this concept to mitigate the harshness of the law, emphasizing spirit rather
than the letter of a general law.
Roman law welded concept of equity to insure fairness of transactions among various peoples in
its empire
English law followed the same course in the development of the common law--they welded old
local customs in a document called a writ
Statute of Westminster--authorized chancellor to extend the scope of the law by making new writs
in like cases on the model of the old
By the end of the century, England had 2 court systems: law and equity courts
Equity is much more than a set of remedies to correct injustices of the common law. It embodies
the universal principles derived from natural law.

Common Law importation into the US


Route taken by common law in US deviated slightly from that in England

67
England: old world with deep seated political traditions US: open frontier and tabula rasa
England: enjoyed spoils of the restoration of the monarchy US: refuge of political and
religious dissenters
7 factors which have contributed to shape American common law
Original substratum of Ancient germanic justice was purely secular and democratic
Germanic legal institutions In the first stage, consisted largely of precise formulas and astute
and jural ideas wranglings over procedure
Originally had no laws but when driven to other European
countries during repeated invasions they discovered intellectual
religion and arts, which reduced their laws into writing

Feudal Law Roman version: one sided


German version: reciprocal, relation of protection and subjection
In US law, idea is a generalization by the analogy of the relation of
lord and tenant

Puritanism Members of calvinist sect who broke away from the church
following the reformation
Shared the calvinist insistence on morality in accordance with
what they believed to be the purity of the primitive Christians
Emphasized individual responsibility before God (ultra-
individualism)

Contests between the Contests gave rise to the supremacy of the law
court and the crown Rejected idea that the will of the sovereign is the law
Kings great power came with great responsibility
Recognized rights of man against powers of government

Conditions of pioneer 3 problems in the administration of justice


communities in America in To receive the English common law, or to find a basis for legal
the first half of the 19th development somewhere else
To decentralize the administration of justice to every mans door
century
Devise a criminal law and criminal procedure sufficient to deal
with the criminal
There was also an opposition to scientific law

Philosophical ideas with American law is a product of the 19th century, and it is the
respect to justice, law and historical and the analytical methods which are the methods of the
the state centurys jurisprudence
Not a creative period but a period of adaptation to mold a better
developed legal system
Period required analysis rather than philosophy
2 movements in juristic thought
Purely juristic movement-- law is reason in which the
ideas of right and justice are paramount
Legislative movements --rights are the product of human
will and are an outgrowth of the social contract
2 growing and formative periods of Anglo-saxon law
Classical common law period
Period of legal development

All but one of these factors made strongly for individualism (feudalism tempered the individualism
of law)

68
Maitland, Prologue to the History of English Law.

YEAR 200
- Roman jurisprudence reached its zenith, and eventually, certain religious societies,
congregations, of non-conformists, have been developing law, and internal law. These were
considered UNLAWFUL LAW (these societies had an illegal, or criminal purpose).
- There were developing systems of constitutional and governmental law, a system of punitive law
(where in the offender will be excommunicated from religious rites)

[before the year 300, Roman law was put on hold and the only source of law would be the constitutions of
the emperors.]

YEAR 300
- Christianity became a lawful religion. The heretics were punished. It is the century of the
ecclesiastical councils.
- The bishop of Rome was becoming a legislator (possibly more prominent that the emperor).
- Theology became jurisprudence.

YEAR 400
- Two statute books:
- Theodosian Code by Theodosius II
- A collection of imperial statues from Constantine I
- Not well designed and cannot be considered a code in the modern sense of the
term. It had a lot of bloody laws against the heretics.
- By Euric the West Goth (Germanic law and imitations of Roman codes)
- Lex Salica: old extant statement of Germanic custom; rude and primitive; not
distinctly heathen nor Christianity
- Free from Roman taint
- One of the ancestors of English law
- Lex Ribuaria: a modernized edition of the Salica, showing the influence of the
clergy and of Roman law.
- Lex Romana Burgundionum (issued by King Gundobad and published y
Eurics son)
- Lex Romanana Visigothorum (issed by King Gundobad and published by
Eurics son)

[The West Goths power was declining]

YEAR 500
- Dionysius Exigus was a monk of Scythian birth who collected and translated the canons of
eastern councils. He also collected letters issued by the popes.
- In 528, Justinian began his work that led to the Digest that had one of the greatest impact on
legal history.

YEAR 600
- Ethelbert of Kent had the desire to have written laws. The barbarous race was brought into
contact with Rome.

69
- Statutes appears as a civilized form of law in the Leges Barbarorum.

YEAR 700
- The Frankish realm expanded bringing with it its system of personal laws. It is a system of
racial laws. People had different laws they abide by.
- Roman law ceased to be the territorial law, and law was reduced to the level of a personal or
racial law. This led to a conflict of laws.
- During the golden age of Frankish supremacy, there was a good deal of defintie legislation. The
or emperor issued CAPITULARIES (capitula) where in he laid down his commands upon all his
subjects as part of territorial laws. However, a change in the law of one of the folks would require
that folks consent.

YEAR 800
- Forgeries emerged. These are the false decretals which are elaborate mosaics made up out of
phrases from the bible, the fathers, genuine canons, genuine decretals, the West Goths Roman
law-book, etc. There were two very prominent compilers:
- Isidorus Mercato (impersonated Isidore of Seville)
- Benedict (who added four books of capitularies)
- The Isidorian forgeries were accepted in Rome.
- At this time, ecclesiastical law was the only sort of law that was visibly growing.
- The stream of capitularies ceased to flow, then came FEUDALISM.
Note: The dark ages was marked by a period where in no one legislates (the diplomatic
age) and this stand still was remedied or saved by feudalism.

- However, England was lagging behind. When the rest of the continent was under feudalism, the
age of capitularies was only beginning in England (with the rule of Alfred). Why the divergence
from continental history?
- England was small
- It can be governed by uniform law
- It seems to invite general legislation
- The kingship of England will preserve its unity
- The Northernment (The Normans) were so victorious in their absolute conquest that the
citizens rather than fighting, focused their attention to creating and establishing laws.
- Ecclesiatical law was not as powerful since the church could not rely on forgeries in
England.

[More stuff happened and eventually Then in Italy...]

> In 1038, Conrad II ordained that Roman law should be once more the territorial law of the city of Rome.
> In 1100, Irnerious was teaching in Bologna. He had a predecessor, Pepo.
- Pepo became the founder of the law school which was teaching Roman law to an intently
listening world.
- The monarchy of theology was disputed
- Science claimed its rights, it was a science of civil life.
> Transient but all-important was the influence of the Bologna of Irenius and Gratiian upon the form, and
the substance of English law.

70

Vous aimerez peut-être aussi