Académique Documents
Professionnel Documents
Culture Documents
(1) Importance of Legal Language and Legal • Procedural rules – orchestrate the
Reasoning Walker, Vern R. (2007) dynamics and timing of the decision-
“Discovering the Logic of Legal Reasoning,” making process.
Legal reasoning – the reasoning involved in • Evidentiary address – issues about the
interpreting constitutions, statutes, and evaluation of evidence, such as the
regulations, in balancing fundamental admissibility of evidence, the legal
principles and policies, in adopting and sufficiency of evidence, and burdens and
modifying legal rules, in applying those rules to standards of proof
cases, in evaluating evidence, and in making
ultimate decisions. Language Evolution and Logic
3 pragmatic dimensions of legal reasoning: • “Thinking like a lawyer” – knowing how to
use legal concepts to formulate those lines
• Our reasoning is action-oriented. of reasoning that are acceptable to lawyers
• It balances the "epistemic objective" of • Logic of legal reasoning – studies the
law against the applicable "non- patterns of legal language that
epistemic objectives.” professionals generally regard as
appropriate
• Legal decision-making occurs in real
time, uses limited resources, and is • Study of legal logic – study of appropriate
usually based on incomplete use of legal language
information.
• Legal language and reasoning are evolving
Three types or areas of legal reasoning:
Friedrich Waismann and the Distinctive
• Rule-based reasoning Logic of Legal Language
2 features: 1) – distinction between prima • Friedrich Waismann developed the idea of
facie case and affirmative defense;; 2) open texture.
possibility of changing the rules themselves
as the result of the reasoning • No concept and no term in any language
can ever be definitively precise
• Evidence Evaluation
• Open texture –not vagueness but rather the
Deciding which evidence is relevant to in eliminable possibility of vagueness for
which issues of facts;; even those terms that appear to be (and
are) maximally precise (non-vague) at any
Evaluating the probative value of the given time
relevant evidence and making findings of
fact based on that evidence and principles • Vagueness vs. open texture:
for the inferential aspects
Vagueness - Actual vagueness
• Second-order reasoning
Open texture - potential vagueness
Process rules allow the decision-making
process to be dynamic, participatory, and • Anti-reductionism in language
interactive, while ensuring that the process
serves the rule of law and the appropriate Legal language might have a logic and a grammar
balance of epistemic and non-epistemic of its own, a logic and a grammar derived from the
objectives. particular functions that law is designed to serve
• The core of Waismann’s idea is the claim language of quantum mechanics is different
that certain uses of language may have from ordinary language.
rules and structures – and not merely
semantics -- that depart from ordinary • Legal language is, in most cases, ordinary
language. language, but that ordinary language,
whether in law or elsewhere, exists subject
• Different natural or ordinary languages to unstated “normal conditions”
have different grammatical, syntactic, or qualifications.
semantic structures.
Philippines v. China, PCA Case No 2013-19,
• Different linguistic communities may have July 12, 2016
not only different meanings but also
different deeper linguistic structures, as with (Note: Focus on the terminologies used like
the languages that treat the prepositional “islands” or “rocks”)
form as something appended by way of
endings to other words rather than by Sr. Associate Justice Antonio T. Carpio,
separate words, “The South China Sea Dispute: Philippine
Sovereign Rights and Jurisdiction,” Ateneo
• Different professional or disciplinary sub- de Naga Law, November 24, 2017.
communities may also have their own
languages, just as different geographic or Core Issue of the SCS dispute:
ethnic or political communities may have
their own languages. • China claims 80% of PH EEZ
• Question of technical language, and of the • Gravest external threat to the PH since
relationship between technical and ordinary WWII
language
Two faces of the SCS dispute:
• Legal language as a potentially or
• Legal: Arbitration Ruling
partly technical language
• Physical: Enforcement of the ruling
• Can law simply change its definitions
to meet changed circumstances, Why does South China Sea matter?
much as Waismann appears to
• China: Economic & military purposes;; to
recommend for many other linguistic
sustain China’s demand for fish (largest in
domains?
the world) & to build a base that will counter
• Law, is different. Law speaks to two attack US missiles
audiences for lawyers and judges
• Philippines: Economic;; extraction of oil,
and directly to citizens
gas, methane hydrates supposed to replace
• The legal system may not possess the for Malampaya gas when it runs out in less
ability to change its definitions in the face of than 10 years
an instance of manifested open texture, as
• United Staters & other foreign countries:
Waismann argued was and must be the
Freedom of overflight and navigation
case for the language of science.
War is not an option
• Different disciplinary languages might have
different logics and different structures as • Our Constitution prohibits [aggressive]
well as (some) different meanings, is that war.
the very nature of law and legal decision-
• We do not have the military means to
making makes the language of the law as
wage war against China
different from ordinary language as the
Real and practical option for the Philippines: shall be in writing
• Talk with china while taking effective personally and directly prepared by the
measures to fortify the arbitral ruling judge
• Talk with China on the COC, on the stating clearly and distinctly the facts
Code for Unplanned Encounters at Sea and the law on which it is based
(CUES) for naval and coast guard
vessels, on conservation of fish stocks, signed by him
on preservation of the marine
environment, on how our fishermen can and filed with the clerk of the court.
fish in Scarborough Shoal, and on
safety at sea. There are many other (3) Rule 120, sec. 2
things to talk with China on the South
China Sea even if China refuses to Section 2. Contents of the judgment:
discuss the arbitral ruling.
If the judgment is of conviction, it shall state:
• File an action for damages against
(1) the legal qualification of the offense
China
constituted by the acts committed by the
• Raise this interest in the United Nations accused and the aggravating or
general assembly by sponsoring a mitigating circumstances which attended
resolution its commission;;
Strong political will is the key: (2) the participation of the accused in
the offense, whether as principal,
• There must first be a strong political will accomplice, or accessory after the fact;;
on the part of our government to
advance our interest. (3) the penalty imposed upon the
accused;; and
• Third party states have started to show
their support. (4) the civil liability or damages caused
by his wrongful act or omission to be
• We won the legal aspect of this battle;; recovered from the accused by the
we have to assert our right or else we offended party, if there is any, unless
will lose it through the Doctrine of the enforcement of the civil liability by a
Acquisition separate civil action has been reserved
or waived.
A. Legal Basis
In case the judgment is of acquittal, it shall
(1) Constitution, Art. VIII, sec. 14
state:
No decision shall be rendered by any court 1) whether the evidence of the
without expressing therein clearly and distinctly prosecution absolutely failed to
the facts and the law on which it is based. prove the guilt of the accused;; or
2) merely failed to prove his guilt
(2) Rule 36, sec. 1
beyond reasonable doubt.
Section 1. Rendition of judgments and final In either case, the judgment shall determine if
orders. — A judgment or final order: the act or omission from which the civil liability
might arise did not exist. (2a)
determining the merits of the case
(4) SC Administrative Circular No. 1 dated 13, 1997
Jan. 28, 1988
FACTS: Marcelino Bugarin was found guilty of
IMPLEMENTATION OF SEC. 12, ART. XVIII four counts of consummated rape and one
OF THE 1987 CONSTITUTION count of attempted rape. He assailed the trial
court’s decision on the ground that the decision
5. Decision-Writing: does not state the facts and law upon which it
was based.
5.1 All Presiding Judges must observe
scrupulously the periods prescribed in HELD: The requirement that the decisions of
Art. VIII, Sec. 15 of the Constitution. courts must be in writing and that they must set
forth clearly and distinctly the facts and the law
5.2 All judges are reminded that the on which they are based serves many
Supreme Court has applied the "Res functions. It is intended, among other things, to
Ipsa Loquitur" rule in the removal of inform the parties of the reason or reasons for
judges even without any formal the decision so that if any of them appeals, he
investigation whenever a decision, on its can point out to the appellate court the findings
face, indicates gross incompetence or of facts or the rulings on points of law with
gross ignorance of the law or gross which he disagrees. More than that, the
misconduct. requirement is an assurance to the parties that,
in reaching judgment, the judge did so through
5.3 Judges should make complete
the processes of legal reasoning. It is, thus, a
findings of facts in their decision, and
safeguard against the impetuosity of the judge,
scrutinize closely the legal aspects of
preventing him from deciding by ipse dexit.
the case in the light of the evidence
Vouchsafed neither the sword nor the purse by
presented. They should avoid the
the Constitution but nonetheless vested with
tendency to "generalize and to form
the sovereign prerogative of passing judgment
conclusion without detailing the facts
on the life, liberty or property of his fellowmen,
from which such conclusions are
the judge must ultimately depend on the power
deduced."
of reason for sustained public confidence in the
(5) Code of Judicial Conduct, Canon 3 – justness of his decision. The decision of the
3.01 and 3.02 trial court in this case disrespects the judicial
function.
CANON 3
Yao v. Court of Appeals, G.R. No. 132428,
A JUDGE SHOULD PERFORM OFFICIAL October 24, 2000
DUTIES HONESTLY, AND WITH
IMPARTIALITY AND DILIGENCE
ADJUDICATIVE RESPONSIBILITIES Velarde v. SJS, G.R. No. 159357, April 28,
2004
RULE 3.01 - A judge shall be faithful to the law
and maintain professional competence. FACTS: SJS, a registered political party,
sought the interpretation of several
RULE 3.02 - In every case, a judge shall constitutional provisions, specifically on the
endeavor diligently to ascertain the facts and separation of church and state;; and a
the applicable law unswayed by partisan declaratory judgment on the constitutionality of
interests, public opinion or fear of criticism. the acts of religious leaders endorsing a
candidate for an elective office, or urging or
(6) Due Process and Fair Play requiring the members of their flock to vote for
a specified candidate. In its Decision, the trial
People v. Bugarin, G.R. No. 110817-22, June court failed to include a dispositive portion.
HELD: A decision that does not conform to the • Subjective method
form and substance required by the o the version of the facts accepted
Constitution and the law is void and deemed by the judge is simply narrated
legally inexistent. To be valid, decisions should without explaining what the
comply with the form, the procedure and the parties’ versions are
substantive requirements laid out in the • In criminal cases, it is better to present
Constitution, the Rules of Court and relevant both the version of the prosecution and
circulars/orders of the Supreme Court. that of the defense, in the interest of
fairness and due process.
Dispositive part of the decision or order is the • In appealed civil cases, the opposing
investitive or controlling factor that determines sets of facts no longer need to be
and settles the rights of the parties and the presented.
questions presented therein, notwithstanding
the existence of statements or declaration in
the body of said order that may be confusing. 3. Issues or Assignment of Errors
Where there is a conflict between the
dispositive part and the opinion, the former • Both factual and legal issues should be
must prevail over the latter on the theory that stated.
the dispositive portion is the final order while
the opinion is merely a statement ordering
nothing. 4. The Court’s Ruling
It is likewise demanded by the due process • Contains a full discussion of the specific
clause of the Constitution. The parties to a errors or issues raised in the complaint,
litigation should be informed of how it was petition or appeal, as the case may be;;
decided, with an explanation of the factual and as well as of other issues the court
legal reasons that led to the conclusions of the deems essential to a just disposition of
court. The court cannot simply say that the case.
judgment is rendered in favor of X and against
Y and just leave it at that without any
justification whatsoever for its action. 5. The Disposition or Dispositive Portion
• Violates Article XII Sec 2 of the 1987
Constitution:
ISSUE: Whether or not RA 7942 is • The Concom did not mean to tie the hands of
constitutional the President and restrict the latter only to
agreements on rigid financial and technical
HELD: (Panganiban’s ponencia) assistance and nothing else.
• RA 7942 is UNCONSTITUTIONAL • The Constitution would have to be a living
document that would answer the needs of
the nation well into the future. Thus, the (3) Manifest Dynamic
Obergefell v. Hodges,
unerring emphasis on flexibility and No. 14-556, June 26, 2015, 576 U.S. ___
adaptability. (2015),
• Constitutions are designed to meet not
only the vagaries of contemporary FACTS: Groups of same-sex couples sued
events. They should be interpreted to cover their relevant state agencies in Ohio, Michigan,
even future and unknown circumstances. It Kentucky, and Tennessee to challenge the
is to the credit of its drafters that a constitutionality of those states' bans on same-
Constitution can withstand the assaults of sex marriage or refusal to recognize legal
bigots and infidels but at the same time same-sex marriages that occurred in
bend with the refreshing winds of change jurisdictions that provided for such marriages.
necessitated by unfolding events
HELD: Due Process Clause of the Fourteenth
Edwards v A.G Canada [1930] AC 123, 1 Amendment guarantees the right to marry as
DLR 98 [PC] (Canada). one of the fundamental liberties it protects, and
that analysis applies to same-sex couples in
FACTS: The appellants brought the case the same manner as it does to opposite-sex
before the court to have the SCC rule that couples.
based on s.24 women could be considered
candidates for the Senate. The first decision Judicial precedent has held that the right to
was that women were excluded from the marry is a fundamental liberty because it is
meaning of “persons.” inherent to the concept of individual autonomy,
it protects the most intimate association
ISSUE: Do the words “qualified persons” in s. between two people, it safeguards children and
24 of the BNA Act 1867 include women? And families by according legal recognition to
therefore are women eligible to be called and building a home and raising children, and it has
become members of the senate? historically been recognized as the keystone of
social order.
HELD:The use of the word “persons” on s.24
includes both males and females. Therefore Because there are no differences between a
women are eligible to be summoned to and same-sex union and an opposite-sex union
become members of the Senate. with respect to these principles, the exclusion
of same-sex couples from the right to marry
RATIO: When determining the meaning of a violates the Due Process Clause of the
particular word in an Act of Parliament you Fourteenth Amendment.
must consider:
C. Role of Lawyers
The external evidence derived from extraneous
circumstances such as previous legislation and (1) UN Basic Principles on the Role of
decided cases and the internal evidence
Lawyers
derived from the Act itself
Adopted by the Eighth United Nations Congress on the
The BNA act planted in Canada a living tree Prevention of Crime and the Treatment of Offenders,
capable of growth and expansion within its Havana, Cuba, 27 August to 7 September 1990
natural limits. (paragraph 44) – Constitution
should be given a large and liberal • Access to lawyers and legal services
meaning.
• Special safeguards in criminal justice
Ambiguous language should be constructed in matters
favor of inclusion
• Qualifications and training • Judges should exercise their contempt
powers for correction and preservation, not
• Duties and responsibilities for retaliation or vindication.
• The court must utilize, to the fullest extent,
• Guarantees for the functioning of soundness and clarity of reasoning, and
lawyers must not appear to have been swayed by
momentary fits of temper.
• Freedom of expression and association
(3) “To dare where even justices fear to
• Professional associations of lawyers tread.”
• Disciplinary Proceedings • “to dare when even angels fear to tread”
(2) Sereno, J. (Dissenting Opinion), A.M. No. • To have no hesitation in tackling a
10-10-4-SC, March 8, 2011 situation that even the wisest of judges
(justices) would avoid
FACTS: 37 members of the faculty of the
University of the Philippines College of Law
published a statement on the allegations of
plagiarism and misrepresentation relative to
the Court’s decision in Vinuya v. Executive
Secretary. Essentially, the faculty of the UP
College of Law, headed by its dean, Atty.
Marvic M.V.F. Leonen, calls for the resignation
of Justice Del Castillo in the face of allegations
of plagiarism in his work.
SERENO’s DISSENT: