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1ST MEETING Part 1: INTRODUCTION Justice Cardozo, Methods of the Judicial Process; Lecture II: The Methods of History, Tradition and Sociology

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Logic logical premise is correct in form and substance. Components, and the surest, best formula to answer and reason in law (the Syllogistic law): a. Major premise law b. Minor premise - facts c. Conclusion advantages: o orderly o symmetrical o fulfills the human sentiment for consistency

History the progression of events from the part which speaks of the origin of laws. Not only illuminate issues of the past, but also of the future. You will know the intent of its creation which illustrates the use of history in analyzing law. Custom dominant practices of certain group of people in a society which plays a vital role in the development of law. The custom which becomes a way of living, defines the parameters, reflects the needs of the people, which in turn is embodied in the laws they seek to implement. 3. Sociology The final cause of law is the welfare of society Social welfare in adjudication taking the interest of the larger community. The judge will have to take into account the impact of his decision to the greater society, and not merely to the two parties. That is the importance of the sociological method. 2 legal systems in the West our system of law is Hybrid, mestizo like the rest of us Common Law (America, England) Civil Law (Spain, Rome) 1. Inductive reasoning from different 1. Deductive start from the general and then particulars and arriving at a generalization. apply the general to a particular example. 2. Concept of precedent 2. Same 3. Public law: Constitutional law, 3. Law on Persons and family, property, administrative law, election law, modern succession, commerce, criminal law, commercial and financial laws negligence 4. Originated from the customs of the people. 4. Law during the Roman empire was dictated Only after custom law became obligatory by the emperor. Major premise (law) was and mandatory that it became law actually imposed by the emperor on his colonial subjects Part 2: PRE-SPANISH CUSTOM LAW Chapter One: Custom law body of customs and usages dealing with liability in pre-conquest society and enforced, or permitted to be enforced by political authority in the communities concerned. Chapter Two: Liability

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the principle of collective liability; an individuals social identity lay in his belonging to a group custom arising from fault or wrong according to a custom of a community

Forms of liability a. An offence ought to be repaid with a similar offence b. An offense causing a loss to another be repaid by an equal compensation Concept of corporation arose from idea of collective responsibility. (Common law)

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Barangay is now considered a political unit. When you take up local govt, barangay is basic unit. 3RD MEETING How come the ancient Romans resort to founding legal fiction? Flow is stable This will show the people that the society is also stable and has complete power over their jurisdiction Society that is preoccupied with stability is bent on preservation of status quo. And if society is preoccupied with preservation of status quo then it becomes preserving the old order and it does not progress so much. The romans invented legal fiction to make the society stable? Yes. Is it the thesis of Maine? How would legal fiction preserve the stability of Roman society? o There will be no progress in that kind of society is laws always changes Did they not have a Senate for the purpose of amending and revising the law? o Yes they did have. But why would you say that they need not change the law? Why did the Romans find it necessary to the law to change the circumstances? Give us an example of legal fiction? o Why did the Romans think that legal fiction would give an intonation of stability in the law? Legal fiction is a tool used by those in power to transform and to change the laws and make it appear that the laws have not been changed or transform. This has been done to improve the system and not offend those who resist change in society. Why would they want to make it appear that the law is stable? Men at that time had never shown and desire to change their system. Why do you think that people in a social order want to preserve the stability of the law and yet they feel that the law has to adapt to certain changes in society? Change is beneficial, however, people were used in the How come in any society, people are bent on preserving the statues quo. Law stability in any given society. -People want to maintain the status quo because you have to take note what the ruling class is al about.

Any given society will abhor any social revolution. It deals social distruption and so on. They would rather do it by creating fictions and legislation, unless ofcourse that your legislators are bent on making social reform. Going back to the law, the function is to preserve the stability of any social order. That was the function of law in ancient Rome as it is now. That is why in case of a real revolution, there will be radical changes in the law. if there is no revolution, the resort, that is equity, legal fiction and legislation. What did the demise of legal fiction do to Roman Law? For example, concept of Roman citizenship: At first, it was limited to those who were original inhabitants of Rome. Started as a monarchy, became a republic and became and empire. With respect to citizenship was limited to Roman birth, but later own as the city of Rome expands into a republic, it included immigrants. Most notable in the early Roman republic are the Greeks. Since the Greeks were more civilized than the Romans, which at that time Hellenic civilization was already flowered, Greeks were considered Roman citizens. And later when republic expanded to an Empire, the concept grew further especially those who rendered public service to the republic, most specially, the soldiers and the generals. You must remember that the Roman republic was propped up by its military. Strength of a colonizing power is limited to its military arm. And so, we have the famous Roman legions, so that from the city of Rome, the city expanded all over Italy. All of the conquests were undertaken by the Roman Legions. Those who rendered public services were considered Roman citizens. You can see how legal fiction of citizenship had so modified the law on citizenship that it enabled the Roman republic to include even non-Romans as citizens and so having maintained its status as dominant power. This exemplifies how legal fiction can effect significant changes in the development of the law so that the law can also adapt itself from changing circumstances. The same is true for us in the present. You can see how for instance, you cans spot Philippine citizenship not only to those who are

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natural born, but also those who undergo naturalization. The law is stable is always behind social and economic development. It tries to catch up to these developments even though it is always behind. If it fails to do so, it becomes a drag on social progress a negative instead of a positive for social change. Societies which are underdeveloped have their laws which are tied up to old notion or to fossilized ideas and even to religious beliefs. And if law is tied up with old ideas, it becomes a negative factor which deters the progress to any given society. So we could note that in this 3rd chapter of Maine, he formulates the thesis that if the law fixes the rights and obligations of individuals according to their status, somehow that will retire the social and economic progress and social order. That is why in this study of the caste system in Hindu society, in which at the top you have the Brahmins and the religious orders etc, their rights and obligations enumerated by the law; that society remains stagnant and will not progress. In progressive societies, the law moves from status to contracts. The individuals are free to set into writing their contracts and obligation, it leads to individual and collective progress. The progressive society, has the law move from status to contract. That is the principal thesis of the book, but you have to have some basic knowledge of classical history to put together these statements. Equity The concept of equity revolves around the idea of fairness, or sanctity or morality. As distinguished from the law where, in terms of positive law, you would be referring to laws found in books. In what you call laws in black and white. You must remember that as early as 450 BC, the Romans had already reduced the law to the 12 Tables (Decemvir). Even by 450 BC, codification was already invented by the Romans. Equity is something else, although it may not be found in positive law, it is rooted in the concept of justice. The Roman concept of justice is what is now found in our civil code which is to give every man his due, and to act in honesty and good faith. These are the 4 concepts of the civil law system and of course, equity is also rooted in these 4 concepts. Here we have the second mode of changing the law, but the next question is How would equity manage to change the law? How did it manage to expand in the concept of the law? How do you think did the law adapt to certain changes? Magistrates and praetors settled disputes among the citizens. They utilized the concept of equity in settling litigants. The magistrates and praetors are the equivalents of our judiciary today; they interpreted the legal law and decide in a dispute-to-dispute basis. There are times that they collect from the great jurists like Ulpian etc. There are also lawyers during that time; the most famous of them was Cicero, who used to criticize the arbitrary and arrogant style of the Caesars in ruling. He was one time exiled due to his orations against the Roman emperor. You can see here that laws manage to move on to adapt the social circumstances and we have seen that equity has rendered the praetors and magistrates also managed to come out with the concept of separate jurisdiction. Later on, with the rise of the common law in England. Legislation How do you differentiate legislation from legal fiction? Roman society was in theory governed by the senate, which were the elders elected by the ruling families of Rome. The principal function of the senate is to legislate. They also conduct legislative investigations. Starting the fact that the republic evolved into an empire, but in theory it was still engaged in legislating. In any society, the ruling class always concerned with the preservation of the status quo, the main anchor being the law. In any society, you will find out that the bulwark of conservatism is always the law. Anyway, the senate governed the Roman Empire for so long. It was the peoples senate of Rome (SPQR). In theory, the senate was the ruling body, but with the advent of the Empire, the decrees of the emperor were also considered law. Anyway, how does legislation differ from equity? Legislation may be based in equity. How did they find out giving everyone its due, not to injure others, living in honesty and good faith etc? According to Maine, how did the concept of equity originate? How did they find out these principles of good faith, honesty and giving everyone its due? State should recognize that the role of the individuals in the government (individualism as a philosophy in the Roman government.) The government recognizes that all of its citizens are equal. Principle of equity arose when Republic began to expand its borders and the citizenry was composed of not only the original Roman citizens but also aliens who integrated into Rome who were therefore considered citizens. Author mentions the fact that concept of equity sprang from Jus Gentium the common customs and traditions of different peoples and races that were accommodated in Rome to become citizens. That

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time in Roman history was already engaged with commercial intercourse with various cities. The different peoples of Italy began to infiltrate the borders of the Roman Empire. The common law, and also begins with the development of international law. When a nation engages in commerce with other countries, somehow, the different customs and traditions of aliens influences that of that country. That is what happened in Rome. Common international law, especially contracts and sales, began to grow and taking into account the customs and traditions, the concept of equity was also formed with the evolution. While equity developed very slowly, legislation was quite open and was transparent because the laws passed by the senate will be codified by the praetors and the magistrates together with the commentaries. This will be the code of the Roman law in addition to the laws found in the books. So we have therefore the Senate acting as a legislating body, although at that time it also acted as a judge in resolution of important public issues; otherwise private issues will be resolved by praetors and magistrates. There were also upheavals, such as revolt of plebeians, and soldiers; which gave rise to certain changes in Roman law. There is also the tribune and the consul which acted to protect the rights of the people in addition, the consul, the tribune, also promulgated rules so that opinion of the consul for example will be like the opinion of the present Ombudsman. Revolution Many occurred during the course of the Roman Empire. Not only revolutions, but also assassinations and outright murder and parricide. The concept of legal fiction not only directly expansion of Roman law; by means of legal fiction, the Roman emperors adopted a fiction of adoption which enabled the far sighted Roman emperors to adopt children or individuals whom they thought would make good rulers. If you read the chronicles of Roman emperors, most of them would be adopted children; like Julius Caesar, Marcus Aurelius, Justinian. This fiction of adoption directly contributed to the progressiveness of Roman law. Of course, legislation would later on be codification. How do we distinguish legislation from codification? Codification is compiling existing laws in a given subject. Example, civil code. Legislation is a piece-by-piece enactment of a law. The supposed advantage of codification convenience for people interested in laws especially law practitioners like magistrates etc. 4TH MEETING Roman Concept of Constitutionalism And its influence on other laws instead of the concept of constitutionalism, the Romans have the principle of state absolutism concept of the state itself as the sole authority what do you understand by absolutism in this context? would mean that every pronouncement of authority was held to be

The paradox here lies in the fact that in its early history, constitutionalism was identified with the Roman republic. You will recall that the republic lasted from 500 BC to 140 BC in its early stage. And then the late republic was from 140 BC 31 AD. And then came the Empire (Principals) 31 AD 476 AD (West) and then from 324AD-1453AD (East). The Roman contribution was made during the early days of the republic. From 31 AD (When Augustus Caesar triumphed over the triumvirate), in assuming one man rule, Augustus became the first emperor. So he laid the foundations of absolutism which strengthened the hand of the monarchy. The Roman empire had its height here. When a colonizing power like Rome had to coerce people from 100 nations, emperor must have absolute authority. He required foreign inhabitants to register themselves for the census. You can see how far reaching the powers of the emperor at that time. Modern world quoted absolutism from Roman Empire. Aside from the principles of absolutism, the Modern World, even the English Common Law was influenced by the Roman republic while it was still the republic. What does the author refer to when he says constitution?

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source of which all other laws were under a higher law, but not a single legal document. He was not talking about a constitution as a fundamental law. he refers to all of the laws that were enacted by the Romans statutes and even jurisprudence and commentaries of the authorities in Roman law.

First principle of constitutionalism is power of the people. Some of us may get the impression that the power of the people was derived from modern thinkers like Rosseau. They get it as far back as the Greek philosophers. What seems to be the difference in approach between the Greek and Romans? The Romans have representative democracy; Greeks did not give much citation with the delegation of a power to legislate. When you speak of Greek philosophers, what comes to mind? City of Rome was just a Greek polis. The thinking of the borrowings of the theories comes from the Greek Philosophers. What distinguishes these ancient Greek philosophers from the ancient Romans? What was Ciceros contribution to the law? you must remember that Cicero was not only a philosopher, he was also a lawyer and an adherent of Greek stoicism, a political orator and earned the enmity of Julius Caesar. Cicero was an advocate of a lot of Greek concepts Generally the Greek philosophers expounded on the theory of justice. Socrates was an advocate of what they call the notion of absolute justice. He thought of men as rational beings and in his mind, the notion of fairness and justice is universal in every human being. Resisting state authority, even if the individual feels that it contradicts justice, and so that was why he was poisoned. He insisted to his students that they have the right to resist if it is contrary to the idea of justice. Because of his belief the opinion was absolute. Plato took it up from there and since Plato did not want to poison himself he became more pragmatic than Socrates. He expounded on a more practical concept of justice. And later, Aristotle refined all of these concepts of justice. Since the Roman jurists focus on common law. It was Cicero who advocated that this power was behind law and that it came from the people. If it is just usage or tradition or custom, it is not law. There is no assumption of power behind it. So this is one contribution of Cicero to the development of Roman law. In later life, with the emergence of Julius Caesar as a conquering hero, Cicero noticed that Julius had tendencies to become a dictator that is why the senators also discerned the authoritarian tendencies. That is why Brutus and Cassius stabbed Julius Caesar stabbed him in March 15, 44BC. He was A colossus walking among us mortals. There were rumors among the enemies of Caesar, since he was such a womanizer, Brutus was thought as an illegitimate son of Caesar. Cicero died in 43 BC. We have the contribution on the nature of law, power, and assumption of law. Public law deals with individual and the state. Private law deals with relationship between individuals. Distinction is the space given to the individual. How does the author define individualism? Distinction is based on philosophy of roman individualism which is defined by the author as the freedom of the individual from state intervention. Roman Republic: individual is protected against state intervention as long as his rights are not transferred upon individuals thats why the Romans effected a number of contracts determine the rights and obligations of the contract instead of the republic dictating what the terms of the contract are. In progressive societies movement is from status to contract instead of the state dictating on the rights and obligations of an individual according to socioeconomic status, the state allows the individual to determine its relations with another individual through a contract. It is discernible from public and private so that the individual in the roman republic may depend upon the state for the protection of his rights against other individuals. Insofar as there is equality among individuals they have to determine their rights and obligations by means of a contract. This is the second state of constitutionalism that the author was talking about. Concept of continuity refers to the stability of the law. in some word given by the author here, continuity in tradition. And again, looking at it from the historical point of view, actually in theory, the Romans look at this period from 500-1453, as a continuation of the empire. But the impression that most people get is that the Roman Empire was from 500-1453 because the Romans developed the concept of continuity, not only of the empire but the law (civil law system.) Starting from the time of Julius Caesar in 35 BC, the

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Roman emperor became to be called Caesar. And up to the 1453, the emperor will be called Caesar in various spellings. In Russian Empire, it is called Czar, a variation of Caesar. You can see how the concept of continuity runs in the Roman Empire. Now we see a constitution something that is stable and longer lasting, because of this, most of us are averse to charter change. Author calls it balancing of authority against liberty. The senate was the supreme power. Senate vs. the tribune and the magistrates. The magistrates moderated the laws passed by the Senate. the magistrates created the concept of equity. According to the author this lead to the law making by the judges or judicial legislation. The judicial legislation means that the magistrates and the praetors applied the law enacted by the senate in such a way that it will render justice to every individual, so that the law will be an instrument of justice in individual instances, and that is their concept of equity. Ultimately, their judgments led to judicial legislation that we know in the modern world. How did the magistrates create the concept of equity? in the specific case where the mother found it necessary to abort in order to save her life, the judge will not uphold the abortion law application of the law in a specific case where enmity dictates that person in similar circumstances. How was it possible that these aspects of constitutionalism were passed on to this generation? After the fall of the Roman Empire in 476 AD, there came the historians call the dark ages. The republic has fallen as early as 31 AD. Its a wonder how these aspects of Roman law were passed on to modern times. When the western part of RE fell to the Barbarians, Medieval Period (Dark Ages after fall of Rome) 1. Early 5th 10th century

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Late 10th-15th century

Catholic Church was already well established during that time. It dictated by Constantine the great in 324 AD. Everyone under the empire was forced to become Christians. When Rome was overran by barbarians, they were also eventually converted. They (barbarians) conquered a superior civilization. They recognized the authority of the pope. The power vacuum in the west is filled up by the pope as a substitute to the power vacated by the emperor. In the east, in Constantinople, RE was still flower. In 323 AD, Constantine the Great transferred the capital from Rome to Constantinople. Even if he had transferred the seat of power, he assigned one of his sons to remain in Rome. There became 2 capitals of the Roman Empire (323-476). West was sacked by the barbarians in 476, and after that Constantinople became the only capital. In the West, barbarians were converted to Christianity, propped up by the barbarian emperors. That explains why the pope remained in power, because the barbarian kings were converted. The conversion was not total, but was done in an number of kings. What happened when the barbarian kings were ruling the empire? The west entered into the age of feudalism. A general of the Roman legion, who managed to conquer a territory, was awarded the title of latifundia a bountiful estate, like the Philippine hacienda. The latifundia was greater since it may involve an entire country. Ex. Whole of Spain was to be awarded to Julius Caesar. When the West was overrun, these latifundias came to be defended by the generals. It was the time when knighthood began to flower. The master of a feudal estate was a king in his own right, and had soldiers led by knights. The residents of these latifundias were already Catholics, so they recognized the pope but the lord in the estate is the lord or the baron. All of these aspects of constitutionalism were completely eroded because there was no central power to guarantee. Central power was already based at Constantinople, and there was no greater authority in the west.

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How did these aspects of Roman constitutionalism survive in that ages and got carried over to modern times? From the 5th to 10th was really a dark age for W. Europe because the conquering barbarians burned the books, the churches and other structures for remnants of Romans, until they were tamed by the pope and they were converted to Christianity. During the medieval ages, the Catholic church had built monasteries busied themselves copying and translating the various laws enacted by the Romans, as well as the commentaries of the jurists. That is one important role played by the Catholic Church in the preservation of Greek and Roman civilization. With respect to Roman law, we can thank the Church for the glossators (monks working in monasteries who have preserved the books of roman law as well at the commentaries and translated them into various languages). That explains why all of these were preserved; it is to mention the fact that the eastern empire was still alive. In the case of Justinian, he promulgated the institutes of Justinian in 539 AD. He was not only a far sighted law giver, but also a good general. He was able to reconquer the west for 12 years and introduced the institutes of Justinian. He mounted a campaign against the Barbarian Kings, and was able to recapture Rome and assigned his son to be emperor in the west. During that 12 year period, they were able to spread the text of Roman law. that explains the durability of the Roman laws even in the west. By the time the barbarian kings were converted to Christianity, they were tolerant enough to allow the Christians to retain their own laws which consisted of nothing but Roman law. In Spain even if the Visigoths were able to conquer, the roman civil law system thrived in the west because of the efforts and victory of Justinian in the west even for just 12 years. When Spain was conquered by the Moors, Spain was the colony for 700 years, from 711-1400s. Even the Moors were liberal enough to keep their faith as well as the Roman law system. In the dark ages, the glossators, priests and barbarians all contributed to the preservation of the Roman law system. Of course, conquerors also inherited the absolutism of the empire. Its just that it was unfortunate that they were converted to Catholicism. Factors that influenced the development of the Roman law: 1. Aequitas 2. Humanitas humanity (kindness, generosity) From 700 to 500 BC, Rome was just a Greek Polis. Aside from that, what other fucktorS influenced the development of Roman law? Patria Potestas father was so powerful, he literally has his children under his disposal. It was abandoned after individualism flowered. Roman law, in the beginning, was draconian, and harsh. They were in the beginning, tillers of the soil. Education in humanities means getting educated in subjects like lit, music, fine arts, and so on. That is why all of you are required liberal education, because that will make you more humane before you come to the college of law. Law is a very narrow and strict discipline. It is like putting on blinders, but you have to have a broad understanding of humanity before you become a lawyer. Greeks and Romans emphasized on an education in humanities so they will be familiar with Hellenic culture. 5TH MEETING Spain 1. 2. Roman colony until 500AD or earlier. Western Romans were completely overrun by barbarians at 476AD. Visigoths overran Spain from about 500 AD. The Visigoths constituted a large part of population of Spain introduced their own customs and traditions. Carried with them the Germanic laws or the Laws of the Barbarians Implement the laws that govern their own place at that time. How did that affect the legal system? predominantly Roman. When Visogoths came, they realized that even if they were superior in arms, they conquered a more advanced civilization. They introduced: a. Legis barbaroro customs of the Visigoths. These barbarians respected the existing legal system, and so they allowed the Spanish to retain their own legal system. But they introduced innovations. b. Fuero Jusgo consisted of essentially Roman legal system, the customary law of the Visigoths and the Canon law the three existing legal systems under the Visigoths. One notable introduction made by the Visigoths was to legalize intermarriage between Visigoths and Spanish. As observed by Maine, the

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4. 5.

intermarriage between races stimulates the vigor of a race, and they introduced the conjugal property system between husband and wife. The rest of fuero Jusgo however, were made up by bigger concepts borrowed from the Roman system. As this point, they (Visigoths) were tolerant enough and introduced the system of legal pluralism merely a system where ethnic or cultural groups are allowed to retain their legal system which they have developed. Its like what we have now Xtians were governed by law, Muslims are governed by Islamic Law. that is what happened in Spain the Visigoths were governed by customary laws, Roman citizens were governed by the Roman civilian system, and later on, the Muslims were governed by Muslim law. What were the salient provisions? law was well advanced for its time. Defined the implementing rules in succession etc. c. Law on Persons must have lived at least 10 days for to be recognized. Citizen cannot marry a slave, deacon, priest, persons who has been a victim of sexual crime. d. Laws on Property they introduced the idea of succession, while before that they introduced the conjugal ownership. Influence of Christianity on the provisions of Fuero Jusgo? Visigoths were converted. Marriage law no live-in arrangement, fornication was a crime (sexual relationship bet. Unmarried couples), marriage was insisted upon the Church not only to preserve the morals of the people, but to emphasize the role of the Church in regulating the lives of couples and also the entire population. Priest is vested the power to unite couples, legitimization of children (children born out of wedlock considered as illegitimate, and are condemned by the church), baptism, laws against crime vs. chastity. Illustrate the influence of Christian system to civil law. With respect to succession, dont you think that the Christian religion influenced the devt of civil law? Civil Law Common Law

Third historical stage of Spanish history Greater part of Spain was conquered by the Moors in 711 AD. 1492. Held as a colony, they called it Andalusia. Retarded the development of the Spanish law, although it did not wipe out the gains of the previous era. Aside from retarding the development of the civil law, common law system common to all tribes living in Spain at that time. You must dissafuse your mind that when Spain was conquered by the Moors, they lagged behind in cultural development Spain prospered in fields of arts and science. In fact, in 1000 AD, the center of local commerce in the west is Cordova. In the West, there were 3 centers Cordova, Constantinople and Baghdad. Greater part of Spain was Islamic, it was only in 1492. Most advanced civilization is Islamic Civilization. But what happened to civil law system? there had been a radical change in the system since it was before predominantly Christian, and when the Muslim arrived, they integrated Islamic ideas. Dont you think it was logical to impose Islamic religion? they did not, Christianity was the predominant belief at that time and they would have difficulty integrating their beliefs. While they tolerated the Christian religion in Spain, they encouraged the growth of Islam by imposing taxes on properties of Catholic Church and by selecting only Muslims as governors and mayors, confiscating the estates of the Church and distributing it to the slaves. And of course, since the Muslims colonized Spain for 700 years, a number of Spaniards were converted. With respect to law, they adopted legal pluralism which was invented by the Goths. Spanish Christians were allowed to keep the civilian system and Muslims practiced their Sharia, and this system of legal pluralism is important in order to prevent any wholesale violence and intimidation on the part of colonizing tribe or nation. So in respect to civil law system, the Moors allowed them to keep legal system. At this time in spain, they produced another great code the Siete Partidas. o Siete Partidas essentially civil law. Compilation of law, treaties and jurisprudence. It refers to natural law (came about based on reason) and also deals with court procedures. o Compare Fuero with Siete? not much differences concerning both, but in Siete, adoption was recognized while in the former it was not considered. Because the latter was made under a civilization which had been more advanced. During the time of the Visigoths, OBLICON were mostly consensual, while in the Moors, it was more formalized. Simpler load, common now to the other. Under the latter there were: Real Contracts deposits, pledge Consensual Contracts sale, lease property o Are these contracts still in our law? yes

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o o o o o

Moors have not changed much it still did not provide more rights to the wife. Had the wife been given more rights to the wife? during Visigoths, no right for wife, while under the Moors, wife was given at least a change to inherit property. Under persons and marriage age of puberty was defined as age of marriage, same as time of Visigoths. Age of majority was 15, now it was puberty. Men are prohibited to marry older women older women might practice more power? Women grow old faster than men? Ignorance of law is a defense for servant, soldier or woman. Medieval period Early 500-800 AD Late 800-1300 AD Western Roman Empire, after invaded, disintegrated into small pieces of land and this gave rise to the feudal system. The generals of the Roman legion became lords of the manor they have small fiefdoms where they exercised absolute power. They were the ones who laid down the law. No Roman legion from central authority called the Pope in Rome. The power vacuum left by the moving of the capital from Rome to Constantinople was only partially filled by the Pope. Although he was able to influence barbarians, it only became effective when there became a union bet. Church and State. But that union, state was the dominant power. Emperors in eastern part insisted that clergy should be under their power. It was at that time that the religious orders managed to exercise power under the control of the king, or the emperor. In the east, there was fusion bet. Church and State. In west, feudalism portions of former Roman empire in the west, the lord was the law on himself. To illustrate the power, he exercised the droit de seignor the right of the lord of the manor to have the first night with the bride. The civil law system was eroded during the early Medieval period, and you can understand that from the role of the Catholic monasteries in preserving the books, laws, and commentaries under the civil law system and translating them into Latin. IT was only in the east, in 539 AD that the code of Justinian was preserved and exercised in the part of their empire. Even the Church was divided into two Catholic and Orthodox. In West, there were Small kingdoms, around 800 AD however, there arose in Germany and France the Holy Roman Empire, which defended the ramparts of Christianity against Muslims. Founded by Charlemagne, he was able to resist the advancement of Muslim invaders in France. It happened in 732 AD. The empire was neither holy, nor Roman nor an empire. Nonetheless, the king and the other Caesars in the area were able to unite to resist the onslaught of Islam. Otherwise, whole of Europe would have been Islamic. It was only in Eastern Europe that the Muslims were able to penetrate coming from the Middle East.

Fourth Part of Spanish history Ferdinand and Isabella marries and unite their kingdoms of Leon and Castille, respectively, and launched the Reconquista. The combined forces were able to drive the Moors back to Africa. This long colonization of Spain by the Moors accounts for the enduring antagonism. When Spaniards colonized the Philippines 35 years later, they were surprised to find Moors in the South. They were actually native Malays converted by Abubakar. Spaniards looked at Moors in indignation, and so we have the Moro Moro supposed to degrade the Muslims in the South. What happened to Spanish law after the Reconquista? o Revised the Fuero Juzgo and the 7 Partidas Land Rights. Land Laws and Land Usurpation in Spanish Era By Owen Lynch Here you can see the contrast of perspective between the Philippine concept of ownership and that of the Spaniards. The natives conceived of holding the land individually. Land ownership is conceptualized as communal. Natives could not think of owning land themselves, they thought that it was the individual who is owned by the land. It was outrageous to them that a piece of paper holds the ownership to the land. And this is completely opposite to those in the West. Since the Spaniards were supposedly missionaries, they were more tolerant. Spanish officials were supposed to protect the right of the indigenous people Spanish officials were not supposed to live near the land without their intention of owning it. Under what title did the Spaniards claim the Philippines? We go back to Roman law, the modes of acquiring property. They

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claimed ownership by virtue of discovery. The land owned by the natives it was only by a small part of Philippine territory. Spaniards, after coming to the Philippines, felt the need to formalize land ownership. Outstanding Spanish soldiers were given parcels of land as a reward. How did the Maura law seek to protect Filipino-owned lands? for a law to really achieve its purpose, first it must be understood by the people who are subject to it. They must know how to go about submitting a proof of ownership. People at that time dint know Spanish. They didnt have the capacity to formally obtain ownership of their land, they couldnt specifically A law which was intended to benefit the subject people may instead work to their disadvantage. Some countrymen took advantage of their understanding of the law and registered not only their lands but others as well. This explains why many people are landless. Irony is that the Maura law was extended to protect ownership for the native people. It ended up being used to oppress. 6TH MEETING 1. Roman Law 496 AD Breviary of Alaric Fuero Juzgo, Fuero Real Siete Partidas Leyes de Toro 6th -13th Century AD 711AD Moors 13th-16th Century 1492 Spain Reconquered 1521 16th-19th Century

2.

3. 4.

Compilacion Las Leyes de Indios Marriages Commerce Waters Maura Law Civil Code Penal Code

20th Century Modern Period

1.

2.

Public Law Constitutional Law Administrative Law Criminal Law Procedure Private Law Civil code Commercial Code Transportation

Philippines Under Americans 1. 1898-1900 (Military) General Orders (GO) o No. 58 instituted in civil marriage. Wants to draw the line between Political and Religious affairs. Actually a political statement to underline the difference between Spanish and American concepts of governance o No. _8 Code of Criminal Procedure. 2. 1901-1906 Military government of Arthur McArthur gave way to the civilian government headed by William Howard Taft Judicial system that was put up was patterned after the US System In Philippine Supreme Court, 3 Filipinos and 4 Americans Taft was surprised with the extent of corruption in the judiciary 3. 1907-1916 4. 1916-1935

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Sources of Muslim Law 1. Shariah 2. Adat Law 7TH MEETING Difference between Islamic and Philippine law Two Sources of Islamic Law 1. Adat Law 2. Personal Law Order of importance A. Shariah Law 1. Quran 2. Interpretations of the Prophet (Muhammad) 3. Consensus of the ulamas - equivalent to commentaries in civil law. interpretations of legal scholars under the civilian system. 4. Concept of analogy equivalent of stare decisis B. Adat not considered part of Islamic Law. Only applies here in Southeast Asia. Incorporated Islamic law Codification of personal laws Code of Muslim (PD 1083) Code of Procedure Christians marrying Muslims, what law would apply? male is a Muslim and female is Christian, then it is the Muslim personal code which will govern their relationship and ownership if a Christian male marries female Muslim, our civil code will apply because of the patriarchal system of law that we have, the important differences are o Muslim code tolerates polygamy, unlike our civil code, which insists only on monogamy. If a Muslim male has two or more wives, then under the Quran, he is supposed to treat them equally a very expensive proposition. It is the financial aspect that discourages polygamy among Muslims, but it is allowed. This practice among Muslims, aside from of course, the psychological factor was born out of historical factors the Muslim warriors who lost their lives in battle are comforted by the fact that their widows or their female relative will be taken care of the other male warriors who survived the battle. And so, under the tenets of the Quran, the basic philosophy is communitarianism. And if you read the precepts of the Qumran, you will find out the teachings of Mohammed there are much more compassionate and more conscious of the social obligations of the Muslim, thats why its a much more kindly religion, and of course, the Muslims are not afraid of sacrificing their life for the sake of their religion or for the sake of their community. It has effects on the tenets of their religion and their emphasis on human compassion and collective consciousness. In male Muslims for instance, embarking on a suicide mission, are comforted by the fact that their relatives will be taken cared of by their elders. Not to mention the fact that the people committing suicide missions are assured of place in heaven and 77 virgins waiting for them portrayal of Islamic heaven. o The Quran have this individual rights, Mohammed writing such long before the Magna Carta was signed religious freedom, freedom of speech, etc. but more than that, it emphasizes on economic and social rights such as the right to have food, clothing and shelter, for Muslims to have the basic necessities in life. In that sense, the Quran is much more wholistic and much more advanced looking and much more compassionate than the Christian bible. You will for instance note that Mohammed was able to built and army, and what he did was release the slaves and free them from their masters. That is unlike the Christian community which tolerated slavery for a while. That is how Islam spread. It is a fighting faith and it is much more communitarian in outlook. Even if the Muslim religion began much later than Christianity, taking off only around 622 AD when Mohammed embarked on Hegira to Medina. Christianity was already a full-blown religion even in the Middle East. In fact, there were already churches in Arabia when Mohammed started teaching. Islam as a religion is much more aggressive and military than Christianity.

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Fundamental law of Sharia is the Quran which has its drawbacks as a system because it retards the growth of the law. It is compared to the time when Roman law was wedded to Christianity, that the banners of Christian religion were the bedrock of the Civilian system. The law flourished after the divorce with religion. In Islam, since there is no separation, Islamic legal system has since stagnated compared to the existing systems of civilian and common law. It is confined solely in those written in the Quran. Theocratic countries like Iran use the Quran as their fundamental law. The split between the Muslims erupt because some people interpret the Quran literally and others more loosely. There is the division of the Sunnis and the Shiites. Mohammed the prophet professes kinship with the elderly teachings of the Jewish religion; in fact he traces his roots to Moses. It was angel Gabriel who personally dictated the words of the Quran to him. Even Mohammed acknowledges Jesus Christ as one of the prophets. That is the common root of Islamic and Christian belief. Nonetheless, the Muslims and the Christians have not been able to get together and is warring since. That is the history of a lot of places in the world. That is why the bad blood between Spaniards and Muslims is enduring Spaniards were colonized by Muslims for 700 years. When Spain threw off the shackles, Spaniards were also surprised that the Muslims were also here in the Philippines. Enmity between Muslims and Christians has been inherited by the Filipinos. By the time Islam has been introduced in the Philippines, it was already in decline. The Islamic religion spread like wild fire in Middle East and even Europe, after a century, around 711 AD, the Muslims were able to conquer the southern part of Europe. It was only in 1492 AD that Spain was able to reconquer the whole of Spain from the Moors. The other groups of Muslims in the Ottoman Empire were able to jump from the other side of the Middle East, were able to conquer the eastern part of the Roman Empire. They changed the name of Constantinople to Istanbul. Turkey used to be the part of Greece. In 1000 AD, which was the height of Islamic civilization, the center of wealth, trade and commerce was the Spanish city of Cordova. Cordova is the equivalent of what we call New York in the year 2000. It was the wealthiest city together with the city of Baghdad, and of course there was Constantinople. These three were the three principal cities in the year 1000. At that time, Constantinople was lorded over by the Greeks. Islamic Civilization has flowered in Spain mathematics, sciences and arts. We can see therefore how these conflicts in civilization affected the development of the law. You have to recognize Islamic law as one of the worlds great legal system, except that in the advent of industrialization, mercantilism and imperialism, that explains the repercussions.

Roman law and other systems: 1. Leges Barbarorum Basic difference between civilian and leges Leges Barbarorum were the laws of the barbarians. The term barbarians were used by Romans to denote people who were assaulting the Empire from outside. These include the Angles, the Saxons, and the Gauls etc. They are now the tower of Western Civilization. No idea of codification, these were initially based on custom law, like what our forefathers did before the coming of the Spaniards. It was only when the barbarians got to contact with the Roman civilization that they were introduced to codification. It was only later that their laws were codified. Custom law springs from the spirit of the people. It is seldom that it is dictated by the king. Law is just a natural law drawing from the habits and customs of the people, and it is only later that they learned about codification. It was only later when they conquered the more civilized Romans that they started codifying their laws. That is the only notable difference between the Civilian and Common law systems. This leges barbarorum borrowed the practice of codification from the Romans, and they also borrowed some aspects of Roman law that they thought will be accepted by their own people. How was is imposed on the colonized people? there was a Roman empire in the West, and a Roman Empire in the East. It was the west that was overrun. The Visigoths overran Spain; Germanic tribes overran Germany, Huns Hungary, and Franks Gaul etc. The West was governed by other Leges Barbarorum. Norman Conquest happened in 1066. This was the conquest of England by William the Conqueror the Duke of Normandy. He crossed the Strait and conquered the greater part of England and imposed his version of the Leges Barbarorum when it was already codified. That explains why the English legal terms contain French words. When William conquered England, he imposed laws from the French and the people

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in England had to adapt to French terms. That is why lawyers use repetitive terms such as null and void, one word is French and the other is English. They used both English and French to be understood, and the practice was carried over to the colonies. Aside from the system of law, what other system arrived at this period? There was the Roman Empire in East and West. West was completely overran, while the East was thriving. 2. The Canon Law

When the West was overran by the barbarians in 476 AD, the Pope was in the Vatican. Since there was a power vacuum here, there was a need for some authority in the Western Empire. It was the Pope who was instrumental in filling the vacuum because he was able to convert the barbarians. And so, he had influence in the barbarian kings. Eventually his power grew and grew and it became dominant, more powerful than the kings. The influence of the Pope until about 1500s, was political. The Church was dominant over the petty kingdoms, not to mention feudal fiefdoms. The compressed religious sect became the persecutor. The Pope also became the legislator, and he began legislating for the supernatural. Why was Canon law legislative of the supernatural? According to Canon law, law is something that is beyond the control of humans. The point I am driving at here, is that how Canon law was able to develop beside Roman law? Ostracized from the church a punishment in the ecclesiastical legislation of the Pope. Covered: Religious Matters Use of Latin in Mass Prohibition of marriage of priests And as the pope acquired power, he began legislating for the whole Christian population: Marriage Baptism Divorce Art. 36 of the Civil Code was derived from Canon law papal legislation Dividing the world like an apple Pope Alexander VIs papal bull dividing the world between Spain and Portugal. He being a Spaniard, he divided the world in favor of Spain. o Pope Alexander VI had seven mistresses and had children with them, but he was not ousted from the papacy. How did the Roman law system influence the development of the Canon law? Was there an intermingling of concepts between Canon and Civil law systems? Yes. Christianity was adopted as state religion in 334 AD. And then, there was the following by the Pope on several Roman law concepts. For instance, the concept of free will in Canon law which was borrowed from the Roman law concept. There was also intermingling between these two systems. The author describes one historical development which guaranteed the imposition of proposition of the Corpus Juris Civilis by Justinian. Where did these copies of the laws come from? It was through the digests of Roman laws. There was also a period in history where emperor Justinian around 500 AD, he made his legal scholars collect writings in Roman law. He was legislating for the East. The author here mentions development which mentions imposition of Corpus Juris Civilis not only in east but in the west. Justinian was not only a great legislator but also a great general. He led a crusade to capture the western part of the empire. He was able to stay in the west for 14 years. It was during this 14 year period, starting from 562 AD that he imposed his Corpus Juris Civilis in the west. That is how the CJC was introduced in the west, that is despite the fact that the west was overran by the Goths. The importation of the civil code from the east to west was assured. During that time, the barbarians were already converted to Christianity. 8TH MEETING Teutonic tribes imposed their own customary laws in their conquered empire? They also allowed roman law to govern, co-existing with the laws of the Germanic tribes.

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In the Western Roman Empire, which was overrun by Germanic tribes, were the ordinary people you see in Western Europe. Rome was completely overrun in 476 AD. The west, however, still had the I. II. Civil law system 552 AD. Justinian, emperor of the East, was able to conquer West and able to impose his laws. He left copies of his code in the Western world. The civil law system was therefore preserved even in the west. Leges Barbarorum customary laws of the Teutonic tribes. Difference with civilian law? it was based on custom law (the common practices of the people of a certain tribe). Since they were barbarians from the point of view of the Romans, they may not know anything about compilation. These are merely compilation of customary laws of the Germans. When they came to contact with the Romans, they learned the benefits of codification. Codes: o Code of Alaric o Fuero Jusgo, etc. Other differences? Civilian system is a law of places while the leges barbarorum is a law of peoples. This can be explained in terms of historical events, because the civilian system was devised by the Roman emperors to govern colonies which they conquered. In the case of the leges, there are many tribes which overran Western Europe. They realized that the people they conquered were more civilized than they were so they let the Romans practice their own laws and this explains the sustainability of the civilian law.

What other systems existed during the Early Medieval period? - Probably from 5th to the 10th centuries. III. The ecclesiastical law the pope became the substitute for the military power of the Emperor. So Canon Law governed only the supernatural is not accurate. The pope became the governing power during this time. How do we characterize canon law? because of the marriage between the Church and the state effected when barbarians overran western Europe, the pope became a power of his own when the emperors power waned in the west. The Pope himself began to legislate, not to mention the fact that there were bishops and friars copying and preserving the civil code of Justinian. Priest or a bishop he mentioned forgers, who falsified ethics so that they can impose their will on the Christian population of western Europe. These falsified ethics reached faraway Philippines as a colony of Spain. Canon law does not govern only the supernatural. The pope and the bishops and the friars legislated, even for the here and now. It is the same way they legislated for the native population. Feudal law arose as the law because of the breakup of the Roman empire where the hordes of barbarians took over and they split the Western part into so many different parts that the Roman citizens had to seek protection from the remaining generals of the legions who were given latifundias. Because of that need that the feudal system developed. This gave more power to the local warlords. The lord of the manor became the seignor. Because there was no central power, the lord of the manor had to impose his own law living in his domain. And so that led to the development of the feudal system. This is somewhat different from the three other legal systems. How does it differ from the three other systems? It is limited only to a smaller area and with respect to method, it was the same method as the civilians system it is a law impose from above to the subjects. - There were petty fiefdoms and the lord of the manor, or baron or whatever title, but in some cases these barons still owed allegiance to a king or emperor who happen to be the biggest power at that time. In the 9th and 10th century, there arose the Holy Roman Empire which was founded by Charles Martel in the 8th century in Germany. It expanded under the emperor Charlemagne or Carlo Magno. It was neither holy nor Roman. It was German and was not an empire, it was only limited to parts of Germany and France. There was a king, and the feudal lords at that time owed their allegiance to the king.

IV.

Civil law as Rosco Pound sees it is based on transactions, while the feudal law is based on relationships. This means that in the civilian system will look into the contract as implementor of the law and looks at the consequences of that contract as that which imposes the will of the two parties. Under the feudal law, the relations among parties is based on the status of the parties. It stratified the people inside the manor into:

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1. The lord of the manor 2. the nobles 3. the freemen 4. the slaves Feudal law had to impose rights and obligations based on the status of each individual. The law imposed by the lord of the manor used relationships as the foundations like relationships between king and lord, master and servant, parent and child and etcetera. This explains why titles of reference books coming from Civil law and Common law are different. Any other legal system which developed? V. Mercantile law arose from the transactions between merchants. It is only the farmers, peasants, landlords and slaves who were only rooted to the land. The rest are traveling salesmen, they did not belong to any feudal landholding. They developed their own law, their transactions and they have certain practices that became customary and it developed into law.

Priests and bishops were not governed by the feudal law. Different system of laws developed as a result of economic, social and historical factors. Development of Law in England The English is one of the Germanic tribes. The two primary tribes that settled England are the Angles and the Saxons. They have their own leges barbarorum. And so, in general, the common law is founded on the leges barbarorum of the Anglo-Saxons, and other tribes. In the 10th and 11th centuries however, the author mentions a development in English history which affected the common law of England. This development is the Norman Conquest which was led by William the Conqueror. Normans, wherever they go, affect the legal system of places which they conquered. This Norman conquering happened in 1066. William the Conqueror was the duke of Normandy. At the time that William the Conqueror crossed the English Channel to colonize England, the French were still considered barbarians, yet they brought with them elements of the Civil law system. We cannot say therefore that Common law is completely free of civilian elements. The conquest of England introduced civilian influence to the legal system of the English. And this explains why the common law system is also a mixture of civilian influence and the common law. Common law is once more pervasive because the barbaric tribes in England were not as united and they held to compile customary practices and thats why they called it Common Law. How did the English kings get to standardize the common law in the whole country? Common law common to the whole country. Individualism? the author states that individualism here pertains to individual rights. Law will tend to protect individual liberty and privacy also. How did feudalism influence the development of the Common law? Its focus is that of the relation between the lord and the vassals. It tends to the individual rights pertaining to that of greater society. Trial by peers. If a tenant is on trial, he has his own peers as members of his own jury. How did feudal law influence the development of law in America? Individualism this was a period which established a new nation were riding on what we would say resentment from their mother country. Right to bear arms in the US? They have a protected right to carry arms. In this arm, they can defend themselves to protect their individual self. Rights of individuals which cannot be touched. The progressive societies movement of law is from status to contracts. Status borrowed from the feudal system. And this moves to contract. Thus, the author Pound agrees with the generalization of Maine. Observation of Henry Maine applies only in classical period because in Rome you have to recall that there is a peculiar brand of individualism. Initially, we recall that the rights of people in old Roman law is dependent on the status of the person. It is fixed not by agreement, but by law. but as the roman social order expanded and developed, then the state allowed the individuals to fix their rights and obligations by contract instead of by law. That made Maine arrive to that conclusion that the law moves from

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status to contracts, thinking that individuals, by fixing their own rights and obligations are better fit their interests. Insofar as modern American society is concerned, societies become more complex as they develop economically and culturally, and the population expands. The movement of the law is simply reversed from contract to status. That is the protection of servant from master, labor law, protection of wife from husband. The law steps in to protect the weaker party by social or economic status. If the weaker party is to depend on a contract and he or she has no negotiating power he or she will be in a losing end. What are the differences between the civilian and common law systems? Common law system is based on the relationship among people. Civil law is based on transactions among people duties and rights of individuals are bound by contracts. Contracts are means to ensure the rights and means of the parties. When you use the word transactions, we have to verify Roman law which is based essentially to transactions. Common law is largely based on the customs - those are the traditions, rules that were being practiced by the people in different areas they were put together in once system. Civil law is based on a compilation or codification of standard laws that have been developed overtime. This is a very important difference insofar as the philosophy of law is concerned because under the civilian system, the philosophy of the law seems to be a command from a superior to an inferior. If inferior disobeys, he is penalized. Under the common law system, the laws are supposed to be a discovered of the customs and traditions of the people. Civil law is based on the legislation of the judges while the common law is based on case law or decisions which have been made to be binding on subsequent cases. In other words, common law is judge-made. The law is discovered by judges while adjudicating cases. Civilian law is made by legislators. Therefore, we have what the author describes as a continuing dispute with respect to codification. Codification is really a product of legislators. It is also possible that laws laid down by judges can be codified but it is more of a re-statement. In common law, previous decisions are binding to the subsequent cases which have similar situations to those of the previous ones. In the civil law system, since the law is fixed, it can be translated in different manners depending on the situation at hand. In common law, the principle of stare decisis, in the civilian system it is not particularly stated, but decisions of the CA and trial courts are not considered binding precedents. In the common law, the development is faster than that of the civil law system it develops largely inside the courtroom. In the civil law system, it is very difficult to create new laws or repeal old laws, and in this sense it develops slower than the common law. This is with respect to approach depending on logic. The common law system utilizes inductive logic. Inductive logic moves from specific instances. The civil law is deductive from general to specific. Philosophy of Individualism Insofar as the Puritans are concerned they interpret the tenets of their religion, they put the big importance in the teachings of their church. They are Purists. This is a branch of the Protestant religion where they believe in the literal meaning of every word in the bible. When the puritans assumed power in England in the Cromwell rebellion, they enforced their beliefs on the English people. When the monarchy is restored, they are persecuted by the people because the people were chafed in their strict interpretation of the Bible. They were the ones who charted the Mayflower and they were the ones founding the colonies of the US. They started the tradition of Purists and individualists. They want the laws to be viewed to what it is said in the Bible. There is this phenomenon in American law called strict law. 9TH MEETING The Philosophy of Law Pound Purposes of law:

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1.

2.

3. 4.

5.

Primitive Stage geared towards the natural law, to preserve peace and order. People during that time; to make sure that individuals in tribe will maintain his physical integrity he will not be harmed or killed, so law developed when the idea of an eye for an eye, had to be substituted. Central organization or a power which is capable of maintaining peace and order is either the datu in Philippine society, head of tribe, king or sultan. One development in the primitive stage of the law for the advancement of primitive law is the idea of compensation, or what we now know as damages, to take the place of revenge. Without compensation, and if society had to rely on an eye for an eye, you will not be able to maintain peace and order. Stage of Antiquity stability, or what we know as the preservation of status quo. Status quo does not refer only to stratification of people (upper, middle, lower class). Preservation of status quo means preservation of stability of society by protecting the rights of property and honoring of promises or contracts of individuals. In this stage of laws development, ancient societies were fixated with preserving the status quo and the classical example is ancient Rome. Law was applied strictly, without deviations even in worthy instances. Thats why in Latin, we have maxim of Dura lex sed lex the law is hard but that is the law. Liberalization generally focused on the development of equity. Equity usually refers to personal element of law as distinguished in its general aspect. This gave rise to pitting law with morals as well as the individualization of law. Justice will be achieved in individual complex cases. Maturity of Law combination of antiquity and liberalization. Maturity would protect individual rights. The primary stage in the maturity of law would be the rights of property, contract etc. maturity is centered on the core philosophy of individualism, and this explains why the law is so solicitous of individual rights. Socialization of law concept of legal justice of Immanuel Kant. Problem was how to reconcile external complaints and the goal of the people to maximize their individual rights. The best example would be the concept of social justice. Socialization of the law is a reaction against the individualism of the previous period. It is the development of the law to moderate individual right sin favor of the rights of the whole community, or what we now call the general welfare of society. Sociological theory of the law example, the concept of property, which was the object of protection at the age of maturity, under which he can use it to whatever means he wants, but now, we have moderated the rights to property, there is a restraint to the person to abuse his property even if nobody is directly injured. We realized that a property owned by a person is held by him in trust. There is in the Constitution the concept of stewardship of property. We no longer place emphasis on ownership, so a person is merely a steward of his property which he could pass on not only to his heirs but also to society as a whole. A piece of huge agrarian land which is too big can be subject to agrarian reform. The socialization of the law uses the law for the purpose of social engineering. The state uses the law to make the life of people in the community much more humane, and fulfilling so he can become a good member of society. That is the stage which we are supposed to be in right now. The stage of socialization is the stage where the law takes into account individual inequalities, members of the social order. Another illustrative principle is what the author calls the development of liability without fault

Schools of Law: 1. 2. 3. 4. Analytical law is made as a command. Example, civil law and Roman law Historical concerned with the growth of law. the laws is not made, but discovered. Utilitarian concerned with the happiness of the greatest number (the majority). The criterion of the greatest good of the greatest number possible. Sociological deals with social interest, the welfare of society.

Concept of property has evolved from ownership to stewardship. This is advancement so far as the philosophy of law is concerned. Individualism of the common law thinks in terms of the abstract individual. Concept of individualism is composed of two core foundations: 1. property rights 2. Contract rights limitations in the rights to acquire such contracts were placed to protect the weaker contracting party. In marriage for example, division of property should be conjugal or at least the weaker party (wife) should have a share in the division of property. Also, there is the concept of marital rape so that now, there is a mutual concept, even if the woman is the wife. In management and labor relations, we have a labor code to protect employees. According to the author, he has seen the diminution of such rights as a result of the development of the law.

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The author traces the development of the law from individualism to socialization of law. With the advent of mass democracy and the social and technological developments, the weaker must be protected. This thinks of the individual as concrete, there are certain inequalities. As concrete human beings, the application of the law would be more on the equity. In Philippine society for example, in looking at people in the concrete reality, statisticians recorded that we have a class: A 2% B 10% C 20% D and E 68% There is a difference in looking at the individual in abstract and in concrete terms. Because of this, law makers think of individuals in the concrete reality, not in the abstract. Ideas of the Philippine Revolution Majul Idea of government be more individualistic in its thrust or is it more socialized? Individualism 1. 2. 9TH MEETING Filipino thinkers thoughts on government (Schools of Thought) 1. Members of the propaganda movement government that promotes welfare of the people People should have a certain freedom to give them the opportunity to develop or improve\ Welfare of the people in terms of assimilation of the Spanish government? freedom of press and of religion, secularization Constituent functions like preservation of peace and order, or protection of property, or defense of the state Ministerial functions additional functions in a welfare state, like protection of environment or provision of education, or housing or land reform.

With respect to independence from Spain? not total independence but more of an improvement on how the government was being administrated. Improvements proposed i. Certain political reforms to be extended ii. Right to education iii. Filipinos should be consulted on matters of state Freedoms which they were asking for like in press and religion? Why were they insisting on those freedoms? Are their newspapers, like La Solidaridad already sign of freedom of press? such papers did not have wide readership as they were not published in the Islands. Were there other religions? People were worshipping as Catholics, are they not free to do so? Were there Muslims in the propaganda movement (None)? Liberty of conscience. Was the government prosecuting them for their religious movement? The propaganda movement was pushing for secularization (Filipinos in Church government?). Although there were Filipinos in the Church, they were only limited to lower posts in the Church hierarchy. Separation of Church and State? At that time there was none, and was there anything wrong with that? heads of the parishes were usually Spanish friars, and such priests have upper hand in the administration of government. They wanted Filipino priests to have the same influence as the Spanish friars. They wanted to achieve and environment that is similar to that in mainland Spain. They want to have Filipino members in the Spanish parliament Why do you think did they not advocate independence? there were fears that if granted independence, there might be sectors of society which may usurp powers, which they meant to be the Caciques the economic elite given favors by the Spanish elite. If

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Filipinos were to be granted complete independence, power will be concentrated to the Caciques, and even when there was no complete independence, this class of people are already very powerful. They recognized that the Filipinos were unprepared to govern themselves. They also recognized that the educated members should be consented, not the general, uneducated public. 2. Katipuneros The governance or authority could emanate from the people, or to set up a government with the consent of the people Mabinis version of government i. Governments power should emanate from people ii. Freedom is obedience of the people to a government of the people iii. Enumerated powers for the three branches iv. Also wanted reforms like propaganda movement, instead of complete independence? he was also asking for independence Were they aware of the same problems posed by the Cacique class or the need to educate the masses so that they will be prepared for democratic participation?

Ideal law? consistent with the principles of a government of the people which respects the right of all people and provide protections Gamble in trusting the inherent wisdom of the people, which he recognized as a bit unprepared. (Mabini) i. Trust coupled with the assertion that they could educate the masses themselves ii. Among all political thinkers, it was Mabini whose thoughts on law and government which were more advanced. For example, he advocated a wider role for the government to include even the ministerial functions. iii. He was advocating for a welfare state because as is clear from the discussion, he was thinking in terms of fulfillment of economic wants of the people. Even for political identity, he wanted independence. In that sense, he was more forward looking than members of the Propaganda Movement, who simply wanted representation in the Cortez and the moderation of influence of Spanish friars in governmental policy iv. He was visionary, thinking in terms of education of the people. he knew very well that masses needed to be educated also. He knew that most people were poor and without property v. With respect to law, like all the others who were political thinkers of the revolution, as coming from the will of the people. ministerial functions like economic needs and educational needs of the people were already foreseen by Mabini, which is now the thrust of our present constitution vi. Form of government? was more inclined to the presidential form, the revolution was more of a preparation for a better government. With respect to separation of powers, it was for the long term. He accepted the pragmatic need of expediency in government with a threat of foreign invasion looming.

Malolos Congress Happened during the time of Aguinaldo, organized to function as a consultative body It was convened to formally declare the independence of the Philippines from Spanish rule

What happened to the Spanish colonial government? The Spaniards were being defeated already by the revolutionaries and one of the most debated, Americans were also fighting against the Spaniards. Object behind the convening of the Malolos Congress? congress first organized as a consultative body. Why do you think Aguinaldo found it necessary? Aguinaldo was not part of the illustrados, who had at that time, a monopoly of the laws and were very influential. Mabini says that we need a dictatorship to run the government during the independence in order to cope with certain occurrences. It would be more expedient. Conflict with respect to constitution of 1899? there was conflict between Mabini group and Calderon group. It was about the strengthening of the powers of the legislative being the position of Calderon

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With respect to political and religious freedom, they were more in the position of separation of Church and State. With respect to the form of government? Malolos convention espoused a unicameral form. Mabini proposed a strong presidency during the time of the revolution, a strong executive to be followed by the people. Other provisions? There was a conflict between the illustrados and the military government insofar as some provisions of the constitution are concerned. Any such conflict? o The illustrados were aiming for a strong legislative and giving more power to the congress and reducing the power of the president, and that power is to be limited to a fewer educated ones. Only educated people have the capacity to run government o On the other hand, the military side want a stronger executive because, first of all, Aguinaldo was recognized by more people. o Illustrados would produce laws which could protect their interest, while the military government want more equality for more opportunities. Was the Malolos constitution amended or modified?

Malolos was composed mostly of lawyers. They could make laws to perpetuate themselves in power. They were so strong a force that they pressured Aguinaldo to dismiss Mabini as head of cabinet. Lawyers often manage to land themselves on top of all the rest. As you can see in Philippine history, when Aguinaldo was defeated, it was the illustrado group who formed the cabinet of the American Civil Government. When the Japanese conquered the islands, illustrado group still managed to stay on top. After independence was granted, the Cacique class took power, and in industrialization, they merely shifter their properties from agricultural to industrial properties. Colonial Bases for American Colonization Spain legitimized sovereignty by religious novel theory they wanted to spread the faith. And there was a stable international law theory In latter part of Spanish colonization, there were problems in Spains management of its colonies. Spain was losing advantage and power. Seeing this, US took advantage. In the US, the most important issue were the tariffs on the sugar. They claim that the US wanted Spain to let go of Cuba, mainly for economic gain for the US. Cause of Spanish-American War in Cuba, the precipitating factor was the blow-up of battleship Maine anchored in Havana. It was destroyed under mysterious circumstances all sailors were off board the ship and the explosive used was so strong and could only come only from the Americans armory. Nonetheless, US blames Spain. What were the economic interests involved with the decision to colonize the Philippines? o Sugar was very expensive in US, and the Philippines was a main sugar making territory o There was competition between US and Spain. US wanted to prove itself and how it democratizes nations that in a way is called freeing people from abuses. When a country wants to colonize, they always manage to find moral justification for such annexation. o Americans announced to the whole world that they wanted to introduce democracy in the Philippines Author talks about the ideology of Republican party of McKinley, as well as the vested interests that are instrumental to pushing McKinley to colonize the Philippines. o Sugar trust sugar cane in US is a budding industry. One of the supporters of McKinley were big business tycoons in the sugar industry. He was pressured by Heber Meyer. He particularly wanted the US to gain sovereignty in Cuba, and McKinley was torn between two issues: his supporters to gain, and public opinion of the Americans not to become a colonizer. o Even those who opposed colonization of the Philippines had economic reasons: They did not want to colonize any country, as a former colony themselves, which was merely a sugar-coat for the economic agenda Getting the Philippines was to take power from Spain, gain a sugar-making industry, and a strategic location, China being an economic and military rival. Espoused by the beet sugar industry in the South, since cane sugar will become a competition against them

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At that time, McKinley decided that they would free the Philippines from abuses by Spain. The two countries had an agreement (Treaty of Paris) wherein Spain sold the Philippines to the US; and organized a mock-war between the two in the Philippines so that Spain could save face. Salient provisions of the Treaty of Paris: o The US is to pay $20 Million. Agabin puns that we were sold at $2 a head. o Spain was to surrender in a mere few hours of fighting with the Americans o The US would finally take over the Philippines, particularly the center of government in Luzon, and for the US to have military presence in Manila. After that, the US began to reform and establish government in the Philippines by importing people and government officials to serve as the leaders that would control the government at that time They did not want Filipinos to think that they had full control, so Filipinos were encouraged to participate in government activity Americans constituted a military government headed by Gen. A. McArthur, which lasted from 18991900. In 1901, the military government was supplanted by the civil government headed by WH Taft. Other legal bases mentioned by the author: o With respect to US congress, the Philippines was considered a territory. That is why it was first placed under military government o Philippines was an issue in political campaign in 1900s, in the presidential race between McKinley and Jennings. McKinley was re-elected, and in that basis, the Americans concluded that the people approved of the colonization. Several months after his election, however, McKinley was assassinated and was succeeded by his VP, Teddy Roosevelt. Philippines was considered as an ideal tolling station on the way to mainland Asia. There were forward looking militarists in the State department who foresaw that China was to be the rival of the US, and if so, the Philippines was an ideal take off station for ships and planes.