On October 19, 1993, appellant was charged with Bigamy in an Information5 filed by the City
1.
G.R. No. 145226 February 06, 2004
LUCIO MORIGO y CACHO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse the decision1 dated October 21, 1999 of
the Court of Appeals in CA-G.R. CR No. 20700, which affirmed the judgment2 dated August
5, 1996 of the Regional Trial Court (RTC) of Bohol, Branch 4, in Criminal Case No. 8688. The
trial court found herein petitioner Lucio Morigo y Cacho guilty beyond reasonable doubt of
bigamy and sentenced him to a prison term of seven (7) months of prision correccional as
minimum to six (6) years and one (1) day of prision mayor as maximum. Also assailed in this
petition is the resolution3 of the appellate court, dated September 25, 2000, denying Morigo’s
motion for reconsideration.
The facts of this case, as found by the court a quo, are as follows:
Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at
Tagbilaran City, Province of Bohol, for a period of four (4) years (from 1974-1978).
After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other.
In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore.
The former replied and after an exchange of letters, they became sweethearts. In 1986, Lucia
returned to the Philippines but left again for Canada to work there. While in Canada, they
maintained constant communication. In 1990, Lucia came back to the Philippines and
proposed to petition appellant to join her in Canada. Both agreed to get married, thus they
were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar,
Bohol.
On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio
behind. On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition
for divorce against appellant which was granted by the court on January 17, 1992 and to take
effect on February 17, 1992. On October 4, 1992, appellant Lucio Morigo married Maria
Jececha Lumbago at the Virgen sa Barangay Parish, Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint for judicial declaration of nullity of
marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The
complaint seek (sic) among others, the declaration of nullity of accused’s marriage with Lucia,
on the ground that no marriage ceremony actually took place.
Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol.
The petitioner moved for suspension of the arraignment on the ground that the civil case for
judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy
case. His motion was granted, but subsequently denied upon motion for reconsideration by
the prosecution. When arraigned in the bigamy case, which was docketed as Criminal Case
No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued.
On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688,
as follows:
WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y
Cacho guilty beyond reasonable doubt of the crime of Bigamy and sentences him to suffer
the penalty of imprisonment ranging from Seven (7) Months of Prision Correccional as
minimum to Six (6) Years and One (1) Day of Prision Mayor as maximum.
SO ORDERED.
In convicting herein petitioner, the trial court discounted petitioner’s claim that his first
marriage to Lucia was null and void ab initio. Following Domingo v. Court of Appeals, the trial
court ruled that want of a valid marriage ceremony is not a defense in a charge of bigamy.
The parties to a marriage should not be allowed to assume that their marriage is void even if
such be the fact but must first secure a judicial declaration of the nullity of their marriage
before they can be allowed to marry again.
Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur, which
held that the court of a country in which neither of the spouses is domiciled and in which one
or both spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction
to determine the matrimonial status of the parties. As such, a divorce granted by said court is
not entitled to recognition anywhere. Debunking Lucio’s defense of good faith in contracting
the second marriage, the trial court stressed that following People v. Bitdu, everyone is
presumed to know the law, and the fact that one does not know that his act constitutes a
violation of the law does not exempt him from the consequences thereof.
Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR
No. 20700.
Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the
appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring the
marriage between Lucio and Lucia void ab initio since no marriage ceremony actually took
place. No appeal was taken from this decision, which then became final and executory.
On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows:
WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in
toto.
SO ORDERED.
In affirming the assailed judgment of conviction, the appellate court stressed that the
subsequent declaration of nullity of Lucio’s marriage to Lucia in Civil Case No. 6020 could not
acquit Lucio. The reason is that what is sought to be punished by Article 34912 of the
Revised Penal Code is the act of contracting a second marriage before the first marriage had
been dissolved. Hence, the CA held, the fact that the first marriage was void from the
beginning is not a valid defense in a bigamy case.
The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the
Canadian court could not be accorded validity in the Philippines, pursuant to Article 1513 of
the Civil Code and given the fact that it is contrary to public policy in this jurisdiction. Under
Article 1714 of the Civil Code, a declaration of public policy cannot be rendered ineffectual by
a judgment promulgated in a foreign jurisdiction.
Petitioner moved for reconsideration of the appellate court’s decision, contending that the
doctrine in Mendiola v. People, allows mistake upon a difficult question of law (such as the
effect of a foreign divorce decree) to be a basis for good faith.
On September 25, 2000, the appellate court denied the motion for lack of merit. However, the
denial was by a split vote. The ponente of the appellate court’s original decision in CA-G.R.
CR No. 20700, Justice Eugenio S. Labitoria, joined in the opinion prepared by Justice
Bernardo P. Abesamis. The dissent observed that as the first marriage was validly declared
void ab initio, then there was no first marriage to speak of. Since the date of the nullity
retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the
law, never married, he cannot be convicted beyond reasonable doubt of bigamy.
The present petition raises the following issues for our resolution:
A. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE
RULE THAT IN CRIMES PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL
INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE
COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONER’S LACK
OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.
B. WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE
RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.
C. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE
RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE
ACCUSED MUST BE TAKEN INTO ACCOUNT.
To our mind, the primordial issue should be whether or not petitioner committed bigamy and if
so, whether his defense of good faith is valid.
The petitioner submits that he should not be faulted for relying in good faith upon the divorce
decree of the Ontario court. He highlights the fact that he contracted the second marriage
openly and publicly, which a person intent upon bigamy would not be doing. The petitioner
further argues that his lack of criminal intent is material to a conviction or acquittal in the
instant case. The crime of bigamy, just like other felonies punished under the Revised Penal
Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a
complete defense. He stresses that there is a difference between the intent to commit the
crime and the intent to perpetrate the act. Hence, it does not necessarily follow that his
intention to contract a second marriage is tantamount to an intent to commit bigamy.
For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the
instant case is a convenient but flimsy excuse. The Solicitor General relies upon our ruling in
Marbella-Bobis v. Bobis,18 which held that bigamy can be successfully prosecuted provided
all the elements concur, stressing that under Article 4019 of the Family Code, a judicial
declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was
aware of said Article 40 is of no account as everyone is presumed to know the law. The OSG
counters that petitioner’s contention that he was in good faith because he relied on the
divorce decree of the Ontario court is negated by his act of filing Civil Case No. 6020, seeking
a judicial declaration of nullity of his marriage to Lucia.
Before we delve into petitioner’s defense of good faith and lack of criminal intent, we must
first determine whether all the elements of bigamy are present in this case. In Marbella-Bobis
v. Bobis,20 we laid down the elements of bigamy thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally dissolved, or in case his or her spouse is absent,
the absent spouse has not been judicially declared presumptively dead;
(3) he contracts a subsequent marriage; and
(4) the subsequent marriage would have been valid had it not been for the existence of the
first.
Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R.
CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in Civil Case
No. 6020, to wit:
WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment
of the marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990
in Pilar, Bohol and further directing the Local Civil Registrar of Pilar, Bohol to effect the
cancellation of the marriage contract.
SO ORDERED.
The trial court found that there was no actual marriage ceremony performed between Lucio
and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the
marriage contract by the two, without the presence of a solemnizing officer. The trial court
thus held that the marriage is void ab initio, in accordance with Articles 322 and 423 of the
Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, "This
simply means that there was no marriage to begin with; and that such declaration of nullity
retroacts to the date of the first marriage. In other words, for all intents and purposes,
reckoned from the date of the declaration of the first marriage as void ab initio to the date of
the celebration of the first marriage, the accused was, under the eyes of the law, never
married."24 The records show that no appeal was taken from the decision of the trial court in
Civil Case No. 6020, hence, the decision had long become final and executory.
The first element of bigamy as a crime requires that the accused must have been legally
married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete.
Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage
being declared void ab initio, the two were never married "from the beginning." The contract
of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for
legal purposes, petitioner was not married to Lucia at the time he contracted the marriage
with Maria Jececha. The existence and the validity of the first marriage being an essential
element of the crime of bigamy, it is but logical that a conviction for said offense cannot be
sustained where there is no first marriage to speak of. The petitioner, must, perforce be
acquitted of the instant charge.
The present case is analogous to, but must be distinguished from Mercado v. Tan.25 In the
latter case, the judicial declaration of nullity of the first marriage was likewise obtained after
the second marriage was already celebrated. We held therein that:
A judicial declaration of nullity of a previous marriage is necessary before a subsequent one
can be legally contracted. One who enters into a subsequent marriage without first obtaining
such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is
characterized by statutes as "void."26
It bears stressing though that in Mercado, the first marriage was actually solemnized not just
once, but twice: first before a judge where a marriage certificate was duly issued and then
again six months later before a priest in religious rites. Ostensibly, at least, the first marriage
appeared to have transpired, although later declared void ab initio.
In the instant case, however, no marriage ceremony at all was performed by a duly
authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage
contract on their own. The mere private act of signing a marriage contract bears no
semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act
alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which
petitioner might be held liable for bigamy unless he first secures a judicial declaration of
nullity before he contracts a subsequent marriage.
The law abhors an injustice and the Court is mandated to liberally construe a penal statute in
favor of an accused and weigh every circumstance in favor of the presumption of innocence
to ensure that justice is done. Under the circumstances of the present case, we held that
petitioner has not committed bigamy. Further, we also find that we need not tarry on the issue
of the validity of his defense of good faith or lack of criminal intent, which is now moot and
academic.
WHEREFORE, the instant petition is GRANTED. The assailed decision, dated October 21,
1999 of the Court of Appeals in CA-G.R. CR No. 20700, as well as the resolution of the
appellate court dated September 25, 2000, denying herein petitioner’s motion for
reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is
ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been proven
with moral certainty.
SO ORDERED.
2.
G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial
Court of the National Capital Region Pasay City and RICHARD UPTON respondents.
MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set
aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P,
issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion
for Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972;
that, after the marriage, they established their residence in the Philippines; that they begot
two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were
divorced in Nevada, United States, in 1982; and that petitioner has re-married also in
Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P
of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in
Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking
that petitioner be ordered to render an accounting of that business, and that private
respondent be declared with right to manage the conjugal property. Petitioner moved to
dismiss the case on the ground that the cause of action is barred by previous judgment in the
divorce proceedings before the Nevada Court wherein respondent had acknowledged that he
and petitioner had "no community property" as of June 11, 1982. The Court below denied the
Motion to Dismiss in the mentioned case on the ground that the property involved is located
in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now
the subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject
to appeal. certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this
Court in a certiorari proceeding to exercise its supervisory authority and to correct the error
committed which, in such a case, is equivalent to lack of jurisdiction. Prohibition would then
lie since it would be useless and a waste of time to go ahead with the proceedings. We
consider the petition filed in this case within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged conjugal
property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal
property because of the representation he made in the divorce proceedings before the
American Court that they had no community of property; that the Galleon Shop was not
established through conjugal funds, and that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot
prevail over the prohibitive laws of the Philippines and its declared national policy; that the
acts and declaration of a foreign Court cannot, especially if the same is contrary to public
policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or
relative community property, upon complete separation of property, or upon any other
regime. The pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over
petitioner who appeared in person before the Court during the trial of the case. It also
obtained jurisdiction over private respondent who, giving his address as No. 381 Bush Street,
San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to
agree to the divorce on the ground of incompatibility in the understanding that there were
neither community property nor community obligations. 3 As explicitly stated in the Power of
Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno,
Nevada, to represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer, appear on my
behalf and do an things necessary and proper to represent me, without further contesting,
subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx
There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her husband, in any State of the Union.
What he is contending in this case is that the divorce is not valid and binding in this
jurisdiction, the same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute divorces the same being
considered contrary to our concept of public police and morality. However, aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid
according to their national law. 6 In this case, the divorce in Nevada released private
respondent from the marriage from the standards of American law, under which divorce
dissolves the marriage. As stated by the Federal Supreme Court of the United States in
Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband and
wife, and to free them both from the bond. The marriage tie when thus severed as to one
party, ceases to bind either. A husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides, in the nature of a penalty. that the guilty party
shall not marry again, that party, as well as the other, is still absolutely freed from the bond of
the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner.
He would have no standing to sue in the case below as petitioner's husband entitled to
exercise control over conjugal assets. As he is bound by the Decision of his own country's
Court, which validly exercised jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation before said Court from asserting his right
over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations under
Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to private respondent. The
latter should not continue to be one of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if the ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss
the Complaint filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
3.
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one party is later naturalized as a
foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the
Filipino spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling on
this apparently novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of
the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated
July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein
respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned
Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family
Code and by reason of the divorce decree obtained against him by his American wife, the
petitioner is given the capacity to remarry under the Philippine Law.
IT IS SO ORDERED.
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United
Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with
a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, Cipriano’s wife left for the United States bringing along their son Kristoffer. A few
years later, Cipriano discovered that his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree
and then married a certain Innocent Stanley. She, Stanley and her child by him currently live
at 5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking
Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the
petition, the court granted the same. The Republic, herein petitioner, through the Office of the
Solicitor General (OSG), sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE
FAMILY CODE4
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the
instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated
between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a
petition for annulment or for legal separation. Furthermore, the OSG argues there is no law
that governs respondent’s situation. The OSG posits that this is a matter of legislation and not
of judicial determination.6
For his part, respondent admits that Article 26 is not directly applicable to his case but insists
that when his naturalized alien wife obtained a divorce decree which capacitated her to
remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the
Constitution.7
At the outset, we note that the petition for authority to remarry filed before the trial court
actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of
the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petition—Any person interested under a deed, will, contract or other
written instrument, or whose rights are affected by a statute, executive order or regulation,
ordinance, or other governmental regulation may, before breach or violation thereof, bring an
action in the appropriate Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties, thereunder.
The requisites of a petition for declaratory relief are: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose interests are adverse; (3)
that the party seeking the relief has a legal interest in the controversy; and (4) that the issue
is ripe for judicial determination.8
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two
Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner
representing the State asserts its duty to protect the institution of marriage while respondent,
a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for
relief, has legal interest in the controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries, litigation ensues and puts into
question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code
apply to the case of respondent? Necessarily, we must dwell on how this provision had come
about in the first place, and what was the intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209,
otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26
thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No.
227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A
second paragraph was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis
supplied)
On its face, the foregoing provision does not appear to govern the situation presented by the
case at hand. It seems to apply only to cases where at the time of the celebration of the
marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at
the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the
wife was naturalized as an American citizen and subsequently obtained a divorce granting
her capacity to remarry, and indeed she remarried an American citizen while residing in the
U.S.A.
Noteworthy, in the Report of the Public Hearings on the Family Code, the Catholic Bishops’
Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of
Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who
divorce them abroad. These spouses who are divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens.
For those whose foreign spouses validly divorce them abroad will also be considered to be
validly divorced here and can re-marry. We propose that this be deleted and made into law
only after more widespread consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code
Revision Committee, is to avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino
spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr.10 The Van Dorn case involved a marriage between a Filipino citizen and a
foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is
valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under
Philippine law.
Does the same principle apply to a case where at the time of the celebration of the marriage,
the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by
naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In
Quita, the parties were, as in this case, Filipino citizens when they got married. The wife
became a naturalized American citizen in 1954 and obtained a divorce in the same year. The
Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized
foreign spouse is no longer married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we hold
that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at
the time of the celebration of the marriage were Filipino citizens, but later on, one of them
becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse
should likewise be allowed to remarry as if the other party were a foreigner at the time of the
solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice.
Where the interpretation of a statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the legislature, it should be construed
according to its spirit and reason, disregarding as far as necessary the letter of the law. A
statute may therefore be extended to cases not within the literal meaning of its terms, so long
as they come within its spirit or intent.
If we are to give meaning to the legislative intent to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no
longer married to the Filipino spouse, then the instant case must be deemed as coming within
the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of Paragraph 2 of
Article 26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a
foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien
spouse capacitating the latter to remarry.
In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a
valid marriage that has been celebrated between her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry.
Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in
this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSG’s theory that the proper remedy of the Filipino spouse
is to file either a petition for annulment or a petition for legal separation. Annulment would be
a long and tedious process, and in this particular case, not even feasible, considering that the
marriage of the parties appears to have all the badges of validity. On the other hand, legal
separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the
legally separated Filipino spouse would still remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted by
respondent concerning the divorce decree and the naturalization of respondent’s wife. It is
settled rule that one who alleges a fact has the burden of proving it and mere allegation is not
evidence.
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife
was naturalized as an American citizen. Likewise, before a foreign divorce decree can be
recognized by our own courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it.14 Such foreign law must also be
proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws
must be alleged and proved.15 Furthermore, respondent must also show that the divorce
decree allows his former wife to remarry as specifically required in Article 26. Otherwise,
there would be no evidence sufficient to declare that he is capacitated to enter into another
marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family
Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino
citizen, who has been divorced by a spouse who had acquired foreign citizenship and
remarried, also to remarry. However, considering that in the present petition there is no
sufficient evidence submitted and on record, we are unable to declare, based on
respondent’s bare allegations that his wife, who was naturalized as an American citizen, had
obtained a divorce decree and had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be made properly upon respondent’s
submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed
Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court
of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
Drake's List of The Most Common Logical Fallacies
1. AD HOMINEM
This translates as “to the man” and refers to any attacks on the person advancing the
argument, rather than on the validity of the evidence or logic. It’s is one thing to say that I
don’t agree with you, but it’s another thing to say that I don’t like you, and you are wrong
because I don't like you; evil people often make valid claims, and good people often make
invalid claims, so separate the claim from the person. Like the emotional appeal, the validity
of an argument has utterly nothing to do with the character of those presenting it. Ad
hominem attacks are the meat and potatoes of political campaigns, but this is because we
are, in fact, debating over who to vote for. Once the votes have been cast, however, we do
well to focus on the logic and evidence, not those speaking the argument.
"Saddam can't have WMD's because George Bush said he does, and he's a liar."
"Saddam must have WMD's because the UN can't find them."
"Who cares if the French oppose invading Iraq; they haven't won a war in centuries!"
2. AFFIRMING THE CONSEQUENT
This is a fairly difficult fallacy to understand or spot. It is categorical in nature and, essentially,
means reversing an argument, or putting the cart before the horse, meaning reversing or
confusing the general category with the specific/sub-category. Note that in this fallacy the
premises/reasons are actually correct or valid; the error is found between the premises and
conclusion. Usually, the error occurs because we incorrectly assume that the Premise was a
sufficient condition, when in fact it was only a necessary condition (one of many conditions)
necessary to prove the conclusion.
Fallacy Ex:
Premise: Ducks are birds.
Premise: Ducks swim in the water.
Premise: Chickens are birds.
False Conclusion: Chickens swim in the water.
(Affirming The Consequent Fallacy: not all birds swim in water; swimming is neither a
necessary or sufficient condition to be the thing "bird")
Fallacy Ex:
Premise: You loved The Matrix.
Premise: Keanu Reaves is in The Matrix
Premise: Keanu Reaves is in Speed.
Conclusion: You must love Speed.
(Affirming The Consequent Fallacy: you may have like The Matrix even if you don't like
Keanu Reaves, or in spite of the fact that he was in it, or maybe you liked him in it but hate
him in everything else etc.)
Fallacy Ex:
Premise: Obama wants nationalized health care.
Premise: The Nazis had nationalized health care.
Conclusion: Nationalized health care will make us all Nazis!
Affirming The Consequent Fallacy: "nationalized health care" is not a sufficient reason to
define the category of Nazism, any more than does "swims in water" defines the category
"birds". In fact, with the exception of the USA, every country that fought against the Nazis
now has nationalized health care.)
Editor's note: Obama does not, in fact, want to "nationalize healthcare".
3. ARGUMENT FROM AUTHORITY
This is the flip side of the ad hominem; in this case, the argument is advanced because of
those advancing it. But arguments from authority carry little weight: the history of human kind
is consistent in one fact: the frequency of human error.
Sometimes fallacious arguments from authority are obvious because they are arguments
from false authorities. Supermodels who push cosmetics or pro athletes pushing home loans
or even sports equipment are likely false authorities: first, we don’t know the supermodel or
athlete uses the product at all (odds are not), and second we can assume that the
supermodel is beautiful without the product and the pro athlete was successful without the
equipment…and that millionaire athletes probably don’t need the kind of home loan you
would.
The creationism vs. evolution debate is especially flush with false authorities like Kent Hovind
and others who freely lecture publicly on false diplomas and credentials. This is also true
with most conspiracy theory debates, such as those surrounding the Kennedy assassination,
Big Foot, the Apollo Moon Landing Hoax etc.
To a degree, we also do well to differentiate between the different definitions of “authority”.
Authority can mean either power or knowledge. In the case of knowledge, we often find we
must trust people to help us make sense of the vast and complex array of knowledge
surrounding an issue – we do well, for example, in courtroom trials to consult psychologists
and forensic authorities etc., or to consult with trained meteorologists, geologists, physicists,
chemists etc. when debating global warming etc. – but we should view these people as
resources for understanding the logic and evidence, rather than as those given the final say
concerning the issue.
Fallacy Ex: “The administration must know where the WMDs are or they wouldn’t have sent
American troops into look for them.” (note, this is also a non sequitur)
Fallacy Ex: "Saddam must have WMD's; the president wouldn't lie to us." (note, this is also an
either/or fallacy; not all incorrect assertions are lies)
Fallacy Ex: “It happens not to be the area where weapons of mass destruction were
dispersed. We know where they are. They're in the area around Tikrit and Baghdad and east,
west, south and north somewhat.”—Rumsfeld, May 30, 03
4. ARGUMENT FROM IGNORANCE OR NON-TESTABLE HYPOTHESIS
This is the fallacy that that which has not been proven false must or is likely to be true;
however, the fallacy usually applies to concepts that haven’t yet been adequately tested or
are beyond the realm of proof. Our legal system protects us from this fallacy under the
presumption of innocence guideline – “innocent until proven guilty”. Religious beliefs are
founded on this "fallacy", but remember that a religious belief is, by definition, based on faith,
rather than empirical proof or mathematical logic; that's what the phrase "leap of faith" refers
to.
5. BAND WAGON
The basic fallacy of democracy: that popular ideas are necessarily right.
Of course in democracies like America popularity does play a certain degree in determining
“right”, so it’s worth keeping in mind that America and most Western democracies are
constitutional democracies, which means the political system deliberately checks and
balances mob rule with codified principles like individual liberty and equality. Obvious
examples of once popular moral and legal positions include race based slavery, legal
cocaine, American women not being allowed to vote until 1920, prohibition (1920-1933) etc.
Fallacy Ex: "C'mon, dude, everybody's doin' it."
6. BEGGING THE QUESTION OR CIRCULAR ARGUMENT
This is basically repeating the claim and never providing support for the premises, or, in other
words, repeating the same argument over and over again. Often, dogmatic thinkers don’t
even realize this is a fallacy.
Fallacy Ex: “Gay marriage is just plain wrong.”
Fallacy Ex: “Drugs are just plain bad.”
Fallacy Ex: “I can’t believe people eat dog. That’s just plain gross. Why? Because it’s a dog,
of course. How could someone eat a dog?”
Fallacy Ex: “Obviously logging causes severe environmental damage. You don’t have to be a
scientist to see that; just go out and look at a clear cut and there it is: no trees.”
7. DOGMATISM
The unwillingness to even consider the opponent’s argument. The assumption that even
when many, perhaps millions, of other people believe otherwise, only you can be correct.
This is closely related to the Either/Or fallacy as it’s based on the usually false assumption
that competing theories or perspectives cannot co-exist within single systems. The
assumption that those who disagree with you are “biased”, while you are “objective”.
More broadly, the over application of a theory at the expense of discussing the actual issue,
specific incidence or evidence at hand; the assertion that one’s position is so correct that one
should not even examine the evidence to the contrary. For example, the assumption that the
economic theory of capitalism explains moral choices; or the assumption that socialism is
morally wrong, even though you attend a public university; the assumption that welfare is
wrong and all those who partake in it are lazy (even though you accept federal financial aid or
would accept state aid in the case of a catastrophic accident or injury); the argument that
drugs are morally wrong and drug addicts should all be locked up or even executed (although
you drink alcohol and coffee and take Ritalin and your grandmother uses anti-depressants
and you are grateful your alcoholic uncle was cured via AA); the assumption that all animals
should be treated humanely (although you respect indigenous cultures that subsist on seal
meat); the assumption that because nature is holy, all logging is morally wrong; the
assumption that democratic republics are the best form of government for all people; and on
and on and on….
8. EITHER/OR OR BLACK/WHITE, FALSE DILEMMA, OR EXCLUDED MIDDLE FALLACY
This fallacy simply paints an issue as one between two extremes with no possible room for
middle ground or nuance or compromise. It is closely related to the straw man fallacy, which
essentially paints one side, instead of both, as so extreme no can agree with it.
Fallacy Ex: “You either support George Bush or you support the terrorists.”
Fallacy Ex: “You either for me or your against me.”
Fallacy Ex: “She loves me; she loves me not.”
Fallacy Ex: “You’re a German Christian? So was Hitler. You must hate Jews.”
Fallacy Ex: “You don’t support the Israeli occupation of Palestine? You must be an anti-
Semite.”
Fallacy Ex: “You support the existence of an Israeli state? You must support the occupation
of Palestine.”
9. EMOTIONAL APPEALS
When it comes to determining the validity or factuality of a claim, any attempt to sway an
argument via emotion, rather than the quality of the logic or evidence, can be considered a
fallacy. This includes in some but not all cases the fallacy argument from adverse
consequences, or “scare tactic”; bad things will happen to us if you do not agree with my
argument. However, if one is arguing over whether or not bad things will occur, this is no
longer a fallacy.
10. FALLACY OF EXCLUSION
This is related to the Hasty Generalization, and refers to focusing attention on one group’s
behavior and assuming that behavior is unique to that group; yet, in fact, the behavior is
common to many groups. Contrast with Hasty Generalization linked here.
The best example I’ve ever seen was in a letter to the Argonaut editor a few years back, the
week after Halloween. The letter’s author complained that fraternities deserved their bad
reputations because while wandering around Greek row Halloween night he saw three
different “frat boys” puking. However, one might argue that had he wandered around just
about any other place kids of this age gathered on Halloween, he’d have seen the same
amount of puke.
Ex: An actual friend of mine wrote this a few years ago in response to a drunk driving fatality
newspaper story, in Nashville. In this case, the drunk driver was an illegal alien and the
victim was a US Citizen. "Oh my god, this has got to stop! How much is too much? Why are
these people [illegal aliens] allowed to live in our country?" At first I agreed: yes, drunk
drivers who kill people should themselves be put to death! Then I realized he was referring to
illegal aliens, as if that was the cause of most, or even many, drunk driving fatalities.
Fallacy Ex: I'd never live in NYC; it's way too dangerous! (Indeed many people are murdered
in cities, so cities appear to have a high murder rate (number of murders per capita) Yet,
there are many people in NYC, so in fact the murder rate is lower in NYC than in many small
towns.)
Fallacy Ex: Women can't drive! (If you examine the driving habits of women, you will observe
that women are poor drivers. Yet if you were to examine the driving habits of both women
and men, you’d learn that men are far more likely to get into accidents.
11. FAULTY ANALOGY
Our language functions through comparisons, and it is common and useful to argue the
validity of one point by comparing it to another, but often the comparison suggests that two
thing are more alike than they really are.
Fallacy Ex: "If we legalize gay marriage, next we'll legalize marriage between men and their
pets."
Fallacy Ex: "Iraq is another quagmire, just like Vietnam."
Fallacy Ex: "Feminazi."
Fallacy Ex: “Meat is murder.”
12. HASTY GENERALIZATION, MISUNDERSTANDING STATISTICS OR NON-
REPRESENTATIVE SAMPLE
This normally involves mistaking a small incidence for a larger trend.
Racism is the most obvious example, especially when exposure to other races or groups is
filtered thru the media, and so you have only seen a very small percentage of the actual
group and what you’ve seen has been careful chosen rather than due to random chance.
Ex: If you grow up in the very white state of Idaho and only see Blacks on TV, you are likely
to think that most Black men are athletes, gangster rappers or comedians.
Ex: Fishing and hunting also frequently trick us into this fallacy; you get a hit on your first cast
and assume you’ve found the perfect spot and the ideal lure, only to sit there getting skunked
for the next hour.
Ex: Most complain about how badly women drive, and if one examines the driving habits of
women one finds that indeed they do get in many accidents. However, they get in fewer
accidents than men.
Ex: Assuming you are likely to be shot if you visit NYC, when, in fact, fewer people are
murdered, per capita, in NYC than in most rural American small towns.
Ex: You are thinking of your old high school friend, Biff, and the phone rings and it’s him. You
conclude the two of you are magically connected.
Occam’s Razor: Random Coincidence. You’ve eliminated the literally thousands of hours that
you’ve thought of your hundreds of friends when not a single one of them called you.
13. MORAL EQUIVALENCY
The implication that two moral issues carry the same weight or are essentially similar.
Ex: Equating the treatment of animals with the treatment of human beings.
Ex: Equating acts of war with murder.
Ex: Equating gay marriage with legalizing pedophilia.
Ex: Equating being a wage slave with actual slavery.
Ex: Equating all acts of war with terrorism.
14. NON SEQUITUR
Non sequitur translates as “it does not follow,” meaning that the conclusion does not follow
the premises (usually because of a faulty Implicit Reason/Assumption/Warrant). In other
words the non sequitur means there is a logical gap between the premises or evidence and
the conclusion. The non sequitur is a broad, categorical term, and so there are many different
types of non sequitur fallacies, including post hoc, hasty generalization, slippery slope,
affirming the consequent and simply faulty assumption or warrant.
Fallacy Ex: “If you loved me you’d buy me this car.”
Fallacy Ex: “If you loved me, you’d sleep with me.”
Fallacy Ex: “I can’t believe you don’t like Speed; you loved Matrix and Keanu Reaves is in
Speed.”
Fallacy: it does not follow that all Matrix lovers love Speed; the error is that one may love
Matrix in spite of the fact that Keanu was in it (this is an Affirming The Consequent fallacy).
A slippery slope argument, for example, is non sequitur because it does not follow that
legalizing one thing (gay marriage, medicinal marijuana) would inevitably, necessarily or likely
lead to legalizing other things (polygamy, or recreational marijuana use).
15. POST HOC OR FAULTY CAUSALITY, OR CORRELATION VS. CAUSATION
Post hoc is the shortened version of “post hoc ergo propter hoc”, which translates as “after
this, therefore because of this”. In other words, the fallacy confuses correlation for causation,
or mistakenly claiming that one thing caused another to happen since they happen in
sequence.
Correlation simply refers to two things happening at the same time, or one thing commonly
happening before another thing happens; in other words, the frequency with which one thing
occurs corresponds with the frequency with which another occurs. Causation of course
means that the one thing occurring causes the other to occur. Post hoc refers mistaking
correlation for causation. The flaw in the argument is that often a third cause exists, which is
causing both to occur frequently, or perhaps the flaw is simply that both things commonly
occur regardless of each other.
There are a couple key points to understand about this fallacy:
First, the fallacy only occurs when both things (reasons, premises) have actually occurred;
therefore, the fallacy doesn’t apply to the future or to debates over whether or not one thing
actually occurred. For example, in order to claim that the green-house gasses-global-
warming argument is post hoc, you must first agree that a) there is a spike in greenhouse
gasses, and b) global warming is actually occurring.
Second, most often the fallacy occurs because of a third element that is responsible for
causing both of the other elements. So, look for a “third cause”.
Third, reasonable skepticism reveals this to be an incredibly common fallacy in both everyday
arguments and in very formal, influential, widely believed, often “scientific arguments”. For
instance, most people recover from their colds a couple days after they take cold medication.
But, of course, most people recover from their colds if they take no cold medication
whatsoever. Many people get rich when they pray for wealth, but many people who never
pray also get rich, and many people who pray to get rich stay poor; also, what about people
who pray to other gods and get rich?
The danger rests in the degree of skepticism; extreme skepticism will reveal all arguments
post hoc, and, in fact, this is the standard argument of most defense lawyers and traditionally
all industries when it comes to questions such as cigarettes and lung cancer, safety glass in
automobiles, seat belts in automobiles, air bags in automobiles, causes of air pollution,
effects of pollution on health and so on; normally scientists prove within a reasonable doubt
causation decades before the public and those responsible for the cause stop crying post
hoc. Current, continuing debates over post hoc include pretty much every scientific argument
that intersects with either faith (evolution, AIDS), industry (global warming) or economic
interests.
(NPR On The Media 5 minute discussion of this fallacy and flu vaccinations)
Fallacy Ex: Drinkers are more likely than non-drinkers to get lung cancer, suggesting drinking
causes lung cancer. (It turns out there is a strong correlation between consuming alcohol
and developing lung cancer. The post hoc fallacy would be asserting that alcohol
consumption causes lung cancer; the actual reason is that people who drink more also tend
to smoke, or smoke more, than non drinkers.)
Ex: Many claim that marijuana is a “gateway drug” because those who have smoked
marijuana are more likely than those who haven’t to go on to try other drugs. The post hoc
fallacy would be asserting that marijuana use leads to increased use of other drugs; the more
logical explanation is that those who are willing to try one drug are obviously also willing to try
other drugs: the cause – willingness to try or use drugs – must necessarily exist before one
tries pot; otherwise, you wouldn’t try it in the first place.
16. RED HERRING
This generally refers to changing the subject mid-debate, so that we start arguing about a
tangential topic rather than the real or original issue.
Ex: We start debating the evidence supporting evolutionary theory, but you bring up the fact
that believing this theory is depressing.
Ex: We start debating the evidence supporting global warming, but you bring up the fact that
believing this theory is depressing...or that Al Gore has a big house and flies on jets a lot.
17. SEMANTICS OR EQUIVOCATION (ALSO, SPLITTING HAIRS, PLAYING WITH
WORDS, OR USING LEGALISMS)
Using the inherent ambiguity of language to distract from the actual ideas or issues, or
deliberately rephrasing the opposing argument incorrectly, and then addressing that
rephrasing.
Fallacy Ex: "No man of woman born" can kill Macbeth (Macduff, who does kill Macbeth, was
caesarian)
Bill Clinton attempted to use this fallacy (with disastrous results!) when he denied having
"sex" with Monica Lewinski. His defense was based on the "fact" that both the law and
Webster's dictionary have a very limited definition of "sex".
Jim Leher: You had no sexual relationship with this young woman?
President Clinton: There is not a sexual relationship. That is accurate.” January 21, 1998
“But I want to say one thing to the American people. I want you to listen to me. I'm going to
say this again. I did not have sexual relations with that woman, Miss Lewinsky. I never told
anybody to lie, not a single time; never.” – Bill Clinton, January 26, 1998
"I have never had sexual relations with Monica Lewinsky." – Bill Clinton, Federal Deposition
Q "Did you have sex with Ms. Lewinski."
A "I never had sex with that woman [Ms. Lewinski]." – Bill Clinton
18. SLIPPERY SLOPE
Arguing from the perspective that one change inevitably will lead to another.
Ex: "If we legalize gay marriage, next people will want to legalize polygamy." (also false
analogy)
Ex: “Why stop at $7.25 an hour? Why not raise the minimum wage to $15 or $20 an hour?
For that matter, why not mandate the price of housing? ... If we believe Congress has the
power to raise minimum wages, where do we go next?” -- Bill Sali, Argonaut, 2/13/07
Ex: “The inevitable result of handgun control is the government seizure of all guns.”
Ex: "What we see in El Salvador is an attempt to destabilize the entire region and eventually
move chaos and anarchy toward the American border." Ronald Reagan, May 9, 1984
Ex: "Death Panels" In response to the House bill to reform healthcare, Rep. John Boehner
said: "With three states having legalized physician-assisted suicide, this provision could
create a slippery slope for a more permissive environment for euthanasia, mercy-killing and
physician-assisted suicide because it does not clearly exclude counseling about the
supposed benefits of killing oneself." Ex: "Death Panels":
The Democrats promise that a government health care system will reduce the cost of health
care, but as the economist Thomas Sowell has pointed out, government health care will not
reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they
ration care? The sick, the elderly, and the disabled, of course. The America I know and love
is not one in which my parents or my baby with Down Syndrome will have to stand in front of
Obama's "death panel" so his bureaucrats can decide, based on a subjective judgment of
their "level of productivity in society," whether they are worthy of health care. Such a system
is downright evil.
Health care by definition involves life and death decisions. Human rights and human dignity
must be at the center of any health care discussion. [Sarah Palin Facebook post, 8/7/09]
(The actual Bill his here. Skip to page 428 or "find: 1233")
19. STRAW MAN
One side of the argument is presented as so extreme that no one will agree with it. Often this
is done by referring to the exception, rather than the rule, and inferring that the exception is
the rule.
Fallacy Ex: “We either leave right now or we’re never going to get there.” “All PETA
supporters support the bombing or destruction of laboratories.” “If you surrender your
freedoms, the terrorists have already won. You don’t want that, do you?” “Hitler supported
gun control, you know.”
20. WEASEL WORDS OR GLITTERING GENERALITY
This is the use of words so broadly defined – such as “love” or “freedom” or “rights” or
“patriotism” etc. etc. – as to become essentially meaningless; no one, and I do mean no one,
on this planet, does not value love, freedom, or rights, and most everyone is a patriot of one
kind or another. It’s the “one kind or another” nature of these words that makes them
essentially pointless: they mean something different to everyone, and so their use in an
argument frequently means nothing. “Love”, for example, refers to both sexual passion and
the nature of God or divine virtue.
Technically, their use is probably not a fallacy, but their use tends to move an argument no
where while inciting deep emotional responses. Thus, they are rhetorically useful and
logically distracting.
The current glittering generality is “terrorism” or “terrorist” as it first clearly refers to something
most people abhor and second is used so broadly it actually applies to any act of war. This
renders those involved in the “war on terror” (itself a misnomer) as themselves “terrorists”. In
the case of this word, however, the fallacy is likely equivocation; the word has been rendered
semantically useless by having been so often misused.
Other current glittering generalities include “protecting marriage”, and “pro choice” or “pro
life”.
21. FAILING OCCAM'S RAZOR
Occam’s Razor is the scientific principle that the simplest of any given hypotheses is likely to
be the right one.
Fallacy Ex: You don’t keep up on your homework and start a paper the night before it’s due.
When it’s returned to you it has a C- grade. You conclude the grade reflects the teacher’s
ignorance or personal dislike for you.
Occam’s Razor: The paper was poorly written.
Fallacy Ex: Every guy you meet at the bar and take home turns out to use you for a night and
then dump you. You conclude all men are losers.
Occam’s Razor: Men assume, and thus dump, any woman skanky enough to take them
home from a bar.
Fallacy Ex: You drink five beers and climb behind the wheel of your father’s Ford Explorer.
When you slide off the road and roll it you blame him for not telling you the tires where worn
and letting you drive a tippy SUV, because everyone knows you can hold your beer.
Occam’s Razor: You were drunk, idiot.
Fallacy Ex: You are thinking of your best friend, Rufus, when the phone rings and it’s Rufus!
You conclude the two of you are magically connected.
Occam’s Razor: Random Coincidence. You think of your best friend dozens if not hundreds
of times a day; he calls you a couple times a day. The odds of him calling you once or twice a
day at least once in awhile are pretty good.
Fallacy Ex: You are thinking of your old high school friend, Biff, and the phone rings and it’s
Biff! You conclude the two of you are magically connected.
Occam’s Razor: Random Coincidence. You’ve eliminated the literally thousands of hours that
you’ve thought of your hundreds of friends when not a single one of them called you.
Fallacy Ex: You drive downtown breakfast. You start thinking of your best friend, Skipper.
You park the car and walk over to the Breakfast Club. There’s Skipper! You conclude that the
two of you are magically connected!
Occam’s Razor: The act of driving requires us to process infinite amounts of (mostly visual)
information while attending to other elements of the act, so we unconsciously see much more
than we are aware of. You probably saw Skipper out of the corner of your eye, also, friends
tend to go to the same place. Also, where else would you go for breakfast in Moscow?
STARE DECISIS
[Latin, Let the decision stand.]
The Latin term stare decisis refers to the doctrine of precedent, which obliges judges to make
certain court decisions according to previous rulings made by a higher court in the same type
of case. The purpose of stare decisis is to promote consistent, predictable rulings on cases of
similar nature. While prior decisions often become precedent in the U.S., adherence is not
absolute. To explore this concept, consider the following stare decisis definition.
Definition of Stare Decisis
Pronounced
ster-ē-di-ˈsī-səs
Noun: A legal doctrine in which a decision previously reached by a court is used as authority
in all future cases that are based on the same basic circumstances or facts.
The policy of courts to abide by or adhere to principles established by decisions in earlier
cases.
In the United States and England, the Common Law has traditionally adhered to the
precedents of earlier cases as sources of law. This principle, known as stare decisis,
distinguishes the common law from civil-law systems, which give great weight to codes of
laws and the opinions of scholars explaining them. Under stare decisis, once a court has
answered a question, the same question in other cases must elicit the same response from
the same court or lower courts in that jurisdiction. For stare decisis to be effective, each
jurisdiction must have one highest court to declare what the law is in a precedent-setting
case. The U.S. Supreme Court and the state supreme courts serve as precedential bodies,
resolving conflicting interpretations of law or dealing with issues of first impression. Whatever
these courts decide becomes judicial precedent.
RES JUDICATA
Res judicata (RJ) or res iudicata, also known as claim preclusion, is the Latin term for "a
matter [already] judged", and refers to either of two concepts: in both civil law and common
law legal systems, a case in which there has been a final judgment and is no longer subject
to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of a case on
same issues between the same parties. In this latter usage, the term is synonymous with
"issue preclusion".
In the case of res judicata, the matter cannot be raised again, either in the same court or in a
different court. A court will use res judicata to deny reconsideration of a matter.
The doctrine of res judicata is a method of preventing injustice to the parties of a case
supposedly finished, but perhaps also or mostly a way of avoiding unnecessary waste of
resources in the court system. Res judicata does not merely prevent future judgments from
contradicting earlier ones, but also prevents litigants from multiplying judgments, and
confusion.
Res Judicata
[Latin, A thing adjudged.] A rule that a final judgment on the merits by a court having
jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or
that could have been litigated in that suit.
Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the reason" or
"the rationale for the decision". The ratio decidendi is "the point in a case that determines the
judgement" or "the principle that the case establishes". the rule of law on which a judicial
decision is based.
In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of
legal reasoning within a judgment on which the outcome of the case depends.
It is a legal phrase which refers to the legal, moral, political and social principles used by a
court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio
decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the
doctrine of stare decisis. Certain courts are able to overrule decisions of a court of coordinate
jurisdiction—however, out of interests of judicial comity, they generally try to follow coordinate
rationes.
The process of determining the ratio decidendi is a correctly thought analysis of what the
court actually decided—essentially, based on the legal points about which the parties in the
case actually fought. All other statements about the law in the text of a court opinion—all
pronouncements that do not form a part of the court's rulings on the issues actually decided
in that particular case (whether they are correct statements of law or not)—are obiter dicta,
and are not rules for which that particular case stands.
‘THE RULE IN A DECISION’. This is a crucial part of the understanding of the way in which
the common law works. Once a system has been adopted of binding PRECEDENT, it has to
be discovered what it is in the previous decision that binds the court later in time. While it is
sometimes possible to peruse the opinion of the judge to find the rule, this is not by any
means a reliable way of discovering the rule in the case. The soundest general method is to
discover the material facts of the case, determine what the decision was and then to draw the
proposition that most closely marries the material facts to the actual decision. It is difficult
enough to do this with a single opinion but very much harder with multiple opinions such as
come from the Court of Appeal, the Inner House and the House of Lords. Sometimes it is
said to be impossible to form a ratio of general application. Anything that is said that is not
part of the ratio is said to be an OBITER DICTUM.
Rule of Law Definition: That individuals, persons and government shall submit to, obey and
be regulated by law, and not arbitrary action by an individual or a group of individuals.
Related Terms: Judicial Independence, Anarchy, Democracy, Law. A government of law and
not of men.
OBITER DICTUM 10. A precedent can be binding without a ratio.
11. When the ratio cannot be determined, later courts may not be bound.
Obiter dictum (usually used in the plural, obiter dicta) is Latin phrase meaning "by the way", 12. Not all cases must have a ratio.
that is, a remark in a judgment that is "said in passing". It is a concept derived from English 13. Unstated assumptions are not the ratio.
common law, whereby a judgment comprises only two elements: ratio decidendi and obiter
dicta. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta
are persuasive only. THE RULES OF OBITER DICTA

A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the 1. Generally, obiter dictum is not binding;
case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law a. Except, the High Court’s ‘seriously considered dicta’ is binding.
issues, are obiter dicta. Obiter dicta (often simply dicta, or obiter) are remarks or observations 2. Obiter dictum is persuasive
made by a judge that, although included in the body of the court's opinion, do not form a a. However, obiter dicta can have different degrees of weight.
necessary part of the court's decision. In a court opinion, obiter dicta include, but are not
limited to, words "introduced by way of illustration, or analogy or argument".[2] Unlike ratio
decidendi, obiter dicta are not the subject of the judicial decision, even if they happen to be THE DESCRIPTIVE-PRESCRIPTIVE DISTINCTION
correct statements of law. The so-called Wambaugh's Inversion Test provides that to
determine whether a judicial statement is ratio or obiter, you should invert the argument, that Before we get into the actual law, we will first examine the distinction between Descriptive
is to say, ask whether the decision would have been different, had the statement been ratio decidendi and Prescriptive ratio decidendi. The essence of the distinction is that the
omitted. If so, the statement is crucial and is ratio; whereas if it is not crucial, it is obiter. descriptive ratio is the ratio from the original case and the prescriptive ratio is how the ratio
may be applied to a future case. I give credit to Professor Julius Stone for expounding this
If a court rules that it lacks jurisdiction to hear a case (or dismisses the case on a distinction in his article, The Ratio of the Ratio Decidendi
technicality), but still goes on to offer opinions on the merits of the case, such opinions may
constitute obiter dicta. Other instances of obiter dicta may occur where a judge makes an DESCRIPTIVE RATIO DECIDENDI
aside to provide context for the opinion, or makes a thorough exploration of a relevant area of
law. If a judge, by way of illumination, provides a hypothetical example, this would be obiter Ratio decidendi is Latin for ‘the reason for deciding.’ This ‘reason’ is not 1) the facts of the
even if relevant because it would not be on the facts of the case. case, 2) the law that the case applies, or 3), the orders of the case. Instead, it’s the
‘necessary step’ that the judge needed to resolve the case.
THE RULES OF THE RATIO DECIDENDI
PRESCRIPTIVE RATIO DECIDENDI
1. Must be a necessary step to the conclusion.
2. Must be directly related to the issue. There is a logical dichotomy between the descriptive ratio decidendi and the prescriptive ratio
3. Must come from disputes of law, not disputes of fact. decidendi. We may be able to identify the ratio in the precedent case but it is not possible to
4. Must be argued in Court. directly apply it to a future case. Reason being, the precedent case and the future case will
5. The facts of the precedent case shape the level of generality. never be precisely identical. There will always be distinctions between the two. What is the
6. The later courts decide the level of generality. probability that identical facts in the past will occur in the future? Very slim. Thus, there needs
7. When a precedent has multiple reasons, all reasons are binding. to be a level of generality.
8. The ratio can come in multiple forms:
The ratio decidendi (the reason for deciding) is the legal reasoning upon which the decision in
a. Common law rules;
a particular case is based and may be used by judges in future cases when confronted with
b. Interpretation of statute;
similar facts. Unlike the ratio decidendi, the obiter dicta (singular obiter dictum) are
c. Interpretation of the common law rules.
observations made by the judge on a matter of law. The obiter dicta are not essential for the
9. Where there are multiple judges:
decision, and are therefore not part of the binding precedent established by the case, but
a. The majority of judges must agree to be binding.
may be persuasive.
b. If the judges have different reasons, find essential areas of agreement.
c. If the majority of judges agree on the order but do not agree on the reasons,
cannot discard the precedent.
d. Cannot construct a ratio by the aggregation of various elements of separate
reasons.