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Friedrich Karl von Savigny



During the time the conduct of the people was governed by nothing more than the different categories of the folk soul.

rationale: rationale: great deal of the peoples obluatics

(beliefs, longings, usages, traditions, idiosyncracies, arts, customs and even superstitious) have moral suasion and significance. significance. In the course of time they were express in rules and regulation. regulation.

During the development of the life and culture of the people a great many of them were either discarded or improved. improved. Those that have survived the interaction of human relations and institutions and have permeated the people in common eventually solidified into the volksrecht or kautusan. kautusan. Thus, for historical juriprudents, the folk soul became no longer a metaphysical theory or idea, but a storied and documented being, A historical and natural reality embodying the will and spirit (geist or diwa) of a people. people.

For historical school of jurisprudence the law is considered as a revelation and development of the national spirit. This spirit. means, of course, that the law is regarded as having a certain historical justification since it is in direct relation to the national life and development of the people. people. However this does not necessarily mean that the spirit of nationalism is an important aspect of the doctrine of the historical school as to the nature of the law. law. For while it is akin to that of patriotism in that it thrives upon the normal attachment of a person to his homeland, there is always the danger that it may become idolatrous worship of the nation as if were divine. divine.

BASIC FOCI OF THE HISTORICAL JURISPRUDENCE In the framework of the historical view of the nature of the law, two important points stand out . 1. The state is regarded as the highest expression or personification of the volkgeist or diwa of the people. people. 2. The law is found and not deliberately made. made.

Relationship that existed among the people. 1. Vertical or personal relationship

- Existed in the family or clan. This was clan. due to the fact that the earliest form of social living is family

2. Communal type of relationship

- Several family groups formed temporary alliances for certain purposes : to ward off some common danger, to pursue some common interest, or to perform some common ritual obligation. obligation. - The relationship naturally tended toward common interest.

As Justice Cardozo of the Supreme Court of United States said history built up the system and the law that went with it. it. Historical jurisprudence posits the idea that the law cannot be realized in the individual but only in the species. species. Law is the common consciousness, developed by the steady growth and development of the people themselves. themselves. Its meaning and implications in the community are handled by specialized group of individuals versed and skilled in the law. law.

1. Jurisprudents . Jurists 3. Legislator

The first two groups follow the evolution and progress of the folkfolk-soul by legal historical research. This means that the object of research. legal research is oriented to the obloatics of the people. people. All the three groups are engaged in the formulation of the technical legal precepts, viz., legal rules, legal principles, legal viz. concepts, and legal standards. standards. As a whole, these specialist become the agency or the instrumentality of the people for the articulation and communication of the law. law.


Historical jurisprudence is confronted with the task of reconciling its concept of the nature of the law with the phenomenon that in some groups of people there is a marked or discernable degree of degree of similarity and sometimes even uniformity in some legal orders. This reconciliation is necessary because historical jurisprudence posits the view that the law is exclusive to a particular group of people. In solving the problem, there is need to consider separately the historical and the jurisprudential reasons.

A. Historical Reason
A community or society of men which has advanced up the ladder of socio-political development cannot be pure, racially or otherwise. For in the process of development of a people many factors or, as the anthropologist would put it, many traitcomplexes have been assimilated by the people.

B. Jurisprudential Reason
The precepts of justice and fairness are said to be permanent in all men everywhere since they are said to be impressed or implanted in the human heart and mind. Furthermore, they are supposed to be basic or identical for all peoples. The precepts of justice and fairness ought therefore to explain the resemblance or similarity in some aspects of the legal orders of different peoples.

VALUE OF THE HISTORICAL DOCTRINE OF THE LAW 1. The organic connection of the law with the life and spirit of the people emphasizes the view that for law there is no absolute cessation. The law is therefore, subject to the same changes and varieties that happen or occur to the other aspects of the life of a people. 2. Historical evolution serves very well as a guide to legal thought . Thus, comparative study of the legal institutions in order to discover their similarities and differences, for their own good, is traceable to historical jurisprudence. jurisprudence. 3. The historical doctrine of the nature of the law is also valuable and significant to policy planners and government functionaries. 4. The historical view of the nature of the law highlights the point that rules and regulations governing human conduct can better survive the tensions of social and political existence and when they are in accordance with the kindred consciousness and conviction of the people to whom such rules and regulation are, after all addressed. addressed. Confirmatory provisions in the Civil Code which cited the historical view of the nature of the law. law.

Article 10 CC
In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. prevail. - This is the legal expression for the profound sense of, and love for, righteousness and justice of the people. This national sense or trait people. is treasured in the following sawikain or sabi of the people: people: 1. Ilubog man at dagnan ang katwiran/ ay pilit itong lulutang ( Right though sunk and weighted / Will nevertheless rise to the surface.) surface. 2. Iti linted isut taklin daguiti nalap-it. nalap-it. ( Right is the bulwark of the weak)

Articles 19 through 36 CC
- Express the Pilipino folkway concerning human relations, about which we hear so much about today. - basic principle that are to be observed form the rightful relationship between human beings and for the stability of social order. order. - The underlying theme of these articles is that every person must act with justice, give everyone his due and observe honesty and good faith in the exercise of their rights and in the performance of their obligations. obligations. - This sense of trait is indicated in the following sawikain or sabi of the people: people:
1. Mahalaga ang puring patay / Sa masamang puring buhay. buhay. (It is better to be dead with honor/ than to be alive in dishonor.) dishonor. 2. Masira man sa pamimilak/ huwag lamang sa pangungusap. pangungusap. (It is better that riches are lost/ than to break one word.) word.

Articles 198 through 211

- Has historical view on the nature of the law on the system of absolute community of property between spouses. It is the system that is spouses. traditional with the Filipino people and in consonance with their diwa. diwa. - It is nearer to the ideal of family unity and is more in harmony with the traditional oneness of the Pilipino family. family.

Articles 216 through 222

- Has something to do with the treatment of the family as a domestic institution. institution. - Reflects the soul and spirit of the Pilipino people on family solidarity. It solidarity. contains also the Pilipino folkway of the family home as a symbol of filial love and cherished memories

Articles 252 through 254

- Depicts the Pilipino folkway of the family council, serving as an advisory body with an overriding influence in family matters. matters.

Article 9
No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (6) laws. - The proposed provisions in the draft provide that if the provisions of the law do not solve a disputed point or matter in litigation, the folkways shall govern. govern. - In its absence, the folklore or paniniwala of the people on justice and equity may serve as guides to judicial determination. determination. - And in the further event that the point at issue in the litigation remains unsettled then the folk-saying or sawikain of the people folkmay be utilized as further guides to adjudicative determination. determination. From the foregoing provisions of the law it indicates that with or without modifications the historical doctrine of the nature of the law, as the life and spirit of the people, is valuable and practicable in the legal ordering. ordering.