Professional Documents
Culture Documents
CONSTITUTIONAL INTERPRETATION
Allan Chester Nadate*
The history of the Philippine legal system typifies the substantive
merging of the civil law and common law traditions as a result of
more than four centuries of colonialism. The admixture has been
generally referred to in legal scholarship as a hybrid legal
tradition, generally effectuated by the Judiciary. While expansive
legal research has been devoted into the character of this
hybridized system, its consequences have been largely unstudied.
Addressing this issue, this Article submits a restatement of this
theory through the novel postulate of legal chimerism.
Chimerism is an asymmetric attribution of interpretive methods,
which fosters indeterminacy in constitution operation as a
consequence of greater judicial discretion in selecting interpretive
methods. Evidently, the application of these processes of
constitutional construction, unique or principal to both civil and
common law traditions, has resulted to arbitrariness and
consequently, indeterminacy in constitutional jurisprudence.
We live under a Constitution,
but the Constitution is what judges say it is.
Charles Evans Hughes1
I. INTRODUCTION
Concordance prefigures in the decision-making process of the courts. In
theory, provided with the same sets of facts, judges caeteris paribus would arrive at
individual decisions in similar manners and with similar ends in mind, such that
individual decisions shall have high inter-rater reliability or inter-judge
agreement.2
Inter-rater reliability quantifies the closeness of scores assigned by a pool of raters to the same
study participants. See Kilem Li Gwet, Computing inter-rater reliability and its variance in the presence of
high agreement, 61 BRIT. J. MATH. & STAT. PSYCH. 29, 29 (2008). In this paper, inter-rater reliability,
inter-rater agreement, or concordance is introduced to highlight the theoretical concept of an
optimized method, process or tool of data gathering. Such judicial tools are described to
juxtapose the formal statistical concept with generally accepted judicial and legal goal of
consistency.
3 See generally BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).
4 Thomas C. Grey, Langdells Orthodoxy, 45 U. PITTS. L. REV. 1 (1983). The author thanks
Prof. Maximo Paulino Sison III for this explanation, discussed extensively in his course Legal
History, College of Law, University of the Philippines (2013).
5 The determinacy of the singularity is assumed to be paramount in these theories. Interrater reliability and determinacy are not synonymous, i.e., although the process of arriving at
decisions may be substantively different, the end-decision may be the same. The Langdellian
hypothesis, however, complements the preposition in such that the judicial decision-making
processes must be consistent. See id. The word true here follows Justice Holmes test of the
market of ideas. Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
6 See RONALD DWORKIN, A MATTER OF PRINCIPLE (1985).
7 Oliver Wendell Holmes, The Path of the Law, 110 HARVARD LAW REVIEW 991, 1009
(1997).
8 JOHN RAWLS, A THEORY OF JUSTICE 118 (rev. ed. 1991) (Somehow we must nullify
the effects of specific contingencies which put men at odds and tempt them to exploit social and
natural circumstances to their own advantage. Now in order to do this I assume that the parties
are situated behind a veil of ignorance).
9 See Jrgen Habermas, Wahrheitstheorien, in WIRKLICHKEIT UND REFLEXION 211-265 (H.
Fahrenbach ed. 1973); Jrgen Habermas, Reflections on the linguistic foundations of sociology: The
Christian Gauss Lectures (Princeton University, February-March 1971), in ON THE PRAGMATICS OF
SOCIAL INTERACTION 1-103 (B. Fultner trans. 2001).
the juristic mechanisms in place were formulated to effectuate a goal. This goal,
more often than not, is usually a set of abstract principles with natural law
undertones, such as justice, equity, and autonomy. It is these principles that
judges have the moral authority to reflect upon and integrate in the democratic
and political legal system.10
II. THE STATE OF UNIFORM LEGAL MEANING
The decision-making process is, however, more complex, integrated, and
multivariate. The theoretical reduction of Langdells legal formalism gives way to
legal realism propounded by John Chipman Gray, Oliver Wendell Holmes, and
Karl Llewellyn. Under the realist postulates, the philosophical conjectures of
formalism need to yield to empiricism in formulating a general theory to explain
the court decision-making process. The study of the nature of legal knowledge
has shifted from metaphysics to phenomenology as a whole or the real
experiences in law.11
But as factors affecting the decisions of the Court as a collegiate body
and members of the Court individually have been extensively reviewed, studies
have yielded diverse explanations.12 While the scholarly interest since Herman
Pritchetts seminal work has been so great as to create a discipline in itself, the
attitudinal perspective in explaining judicial decision-making remains inchoate.13
10
14 Melinda Gann Hall & Paul Brace, Order in the Courts: A Neo-Institutional Approach to
Judicial Consensus, 42 WEST. POL. Q. 391, 391 (1989).
15 See Mark Tushnet, The Politics of Constitutional Law, in THE POLITICS OF
CONSTITUTIONAL LAW: A PROGRESSIVE CRITIQUE 219-235 (David Karyis ed. 1990); PETER
IRONS, A PEOPLES HISTORY OF THE SUPREME COURT: THE MEN AND WOMEN WHOSE CAUSES
AND DECISIONS HAVE SHAPED OUR CONSTITUTION 395-408 (1999).
16 In American constitutional law, the civil rights movement and New Deal have been
particularly well-documented and researched in light of judicial decisions affirming or rejecting
national policies. See, for example, Jack Balkin, Wrong Day it was Decided: Lochner and
Constitutional Historicism, 85 B. U. L. REV. 677 (2005); Cass Sunstein, Constitutionalism After the New
Deal, 101 HARV. L. R. 421 (1987).
17 The thought experiment of Fuller is demonstrable of this thesis. See Lon Fuller, The
Case of the Speluncean Explorers, 62 HARV. L. REV. 616 (1949). Moral assents are also observable in
Philippine case law. See People v. Caruncho Jr., G.R. No. L-57804, Jan. 23, 1984; Imbong v.
Ochoa, G.R. No. 204819, Apr. 8, 2014. In the Philippine setting, flip-flopping decisions have
been particularly discussed. See League of Philippine Cities v. Commission on Elections, G.R.
No. 176951, June 28, 2011 (Sereno, J., dissenting).
18 This juristic determinacy is a necessity according to Lon Fuller, such that
contradictions in the law, unstable legislation, and ad hoc or inconsistent adjudication are routes
for failure in any legal system. See LON FULLER, THE MORALITY OF LAW (2d ed. 1969). See also
Colleen Murphy, Lon Fuller and the Moral Value of the Rule of Law, 24 L. & PHILO. 239, 240-241
(2005) (Laws must be generalspecifying rules prohibiting or permitting behavior of certain
kinds. Laws should be widely promulgated, or publicly accessible . . . Laws should be prospective
. . . Laws must be clear . . . Laws must be non-contradictory . . . Laws must not ask the
impossible. . . . Nor should laws change frequently; the demands laws make on citizens should
remain relatively constant. Finally, there should be congruence between what written statute
declare and how officials enforce those statutes); Jeremy Waldron, Why Law Efficacy, Freedom, or
Fidelity?, 13 L. & PHILO. 259 (1994).
19 See interpretations and applications in Vanhornes Lessee v. Dorrance, 2 U.S. 304, 308
(1795); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 316 (1819); Ex parte Siebold, 100 U. S.,
371, 394 (1879); Adkins v. Childrens Hospital, 261 U. S. 525, 544 (1923); Biraogo v. The
Philippine Truth Commission of 2010, G.R. No. 192935, 637 SCRA 78, 137-138, Dec. 7, 2010.
20 Judicial review is based on the legal foundations of a written Constitution. See Texas v.
White, 74 U.S. 700, 700, 721 (1868); Fairbank v. United States, 181 U.S. 283, 285-286 (1901);
Muller v. Oregon, 208 U.S. 412, 412 (1908).
21 Dante B. Gatmaytan, Can Constitutionalism Constraint Constitutional Change?, 3
NORTHWESTERN INTERDISCIPLINARY L. REV. 22, 22, 25-27 (2010).
22 Michael C. Dorf, The Undead Constitution, 125 HARV. L. REV. 2011 (2012).
23 See supra note 12 and accompanying text. See also Myrna S. Feliciano, Ethics, Integrity,
and Judicial AccountabilityThe Philippine Experience, in 19 ASIA PACIFIC JOURNAL FORUM 206
(2009); Allan Chester Nadate, Jelson Valdoz & John Dominic Zafe, Perspectives of Judicial
Independence in the Philippine Politico-Ethical Nomos, www.academia.edu/6449682 (Mar. 2014).
24 LAWRENCE TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 30, 32 (2000 ed.); see also
PACIFICO AGABIN, THE POLITICAL SUPREME COURT (2012).
25 5 U.S. (1 Cranch) 137, 137 (1803). (It is emphatically the duty of the Judicial
Department to say what the law is. Those who apply the rule to particular cases must, of
necessity, expound and interpret the rule. If two laws conflict with each other, the Court must
decide on the operation of each. If courts are to regard the Constitution, and the Constitution is
superior to an ordinary act of the legislature, the Constitution, and not such ordinary act, must
govern the case to which they both apply).
26 Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to
Judicial Supremacy, 73 N. Y. U. L. REV. 333 (1998), citing Steven L. Winter, An Upside/Down View of
the Countermajoritarian Difficulty, 69 TEX. L. REV. 1881, 1924 (1991).
27 Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian
Difficulty, Part Five, 112 YALE L. J. 153, 171 (2002).
28
is preserved as an integral component of the rule of law,32 such that [t]he rule of
law depends in large part on adherence to the doctrine of stare decisis,33 for as the
Court quipped in Planned Parenthood v. Cassey, Liberty finds no refuge in a
jurisprudence of doubt.34
In the determination of constitutional meaning, the flaws of both
methods are easily exploited within the scope of an attitudinal model during
decision-making. The jurisprudence of doubt easily manifests, such that
statutory construction, while paramount, remains complicated and convoluted35
and canons of statutory construction may mirror anti-canons of equal
applicability.36
Precedents are also problematic: If precedent drives Court decisions, as
many in political science and law maintained, then why did various Justices in
interpreting the same legal provisions consistently reach different conclusions on
important questions of the day?37 Legal realism, in this light, eventually leads to
the conclusion that rules based on precedent [are] little more than smokescreens
behind which judges hide their values.38
The fulcrum of common law interpretation further strengthens the
attitudinal model through the emphases on principles and morality and weakens
juristic determinacy by judicial moral relativism.39 The fact remains that judges
American Supreme Courts decision in Engel v. Vitale, 370 U.S. 421 (1962), initiating strict
neutrality in the interpretation of the non-establishment clause).
32 Jeremy Waldron, Stare Decisis and the Rule of Law: A Layered Approach, 111 MICH. L.
REV. 1, 31 (2012) (First, the rule of law generates a distinctive perspective on stare decisis . . . But
it might be true the other way around: the justification of stare decisis might depend to a large
extent on the rule of law. . . . And second, if the justification of stare decisis does not depend on
the rule of law, it is best to understand the impact of rule-of-law principles on stare decisis in
layers).
33 Welch v. Texas Department of Highways & Public Transportation, 483 U.S. 468, 47879 (1987).
34 505 U.S. 833, 844 (1992).
35 See Yule Kim & George Costello, Statutory Interpretation: General Principles and Recent
Trends, United States Congressional Research Service Report for Congress (Aug. 2008),
http://www.fas.org/sgp/crs/misc/97-589.pdf (In analyzing a statutes text, the Court is guided
by the basic principle that a statute should be read as a harmonious whole, with its separate parts
being interpreted within their broader statutory context in a manner that furthers statutory
purpose. The various canons of interpretation and presumptions as to substantive results are
usually subordinated to interpretations that further a clearly expressed congressional purpose. The
Court frequently relies on canons of construction to draw inferences about the meaning of
statutory language).
36 Karl N. Llewellyn, Remarks on the Theory of Appellate Decisions and the Rules of Canons
About How Statutes are to be Construed, 3 VAND. L. REV. 395, 401 (1950).
37 Lee Epstein, Jack Knight & Andrew D. Martin, The Political (Science) Context of Judging,
47 S. L. U. L. J. 783, 787 (2003).
38 Id. See also Lawrence C. Marshall, The Canons of Statutory Construction and Judicial
Constraints: A Response to Macey and Miller, 45 VAND. L. REV. 673, 674 (1992) (highlighting judicial
relativism or the false notions that all judges share the normative view that in interpreting statute
the judges natural desire to implement the best public policy should trump the effort to discern
congressional intent or purpose through canons and other devices and the public, the
Congress, and the legal community would tolerate courts whose statutory interpretation decisions
make no effort to tie their results back to the statute at issue).
39 PATRICK DEVLIN, THE JUDGE 177 (1979) (Historically, [common law] is made quite
differently from the Continental code [civil law or Romanesque law]. The code precedes
judgments; the common law follows them. The code articulates in chapters, sections, and
can opt out of the decisional framework provided by the canons simply by
deciding a particular case without invoking a canon of construction. Instead of
using canons, a judge could decide a case on the basis of precedent, or by
reasoning by analogy . . . or on grounds such as public policy, intrinsic fairness,
economic efficiency, or wealth maximization.40
In fact, as judicial creations, the canons can be understood best as
devices that were designed to serve the self-interest of their inventorsthe
judiciary,
Thus, at least to some extent, the use of the canons can be viewed as
manifestations of the fact that judges are agents of the people, and as
with any agency relationship, agency costs arise due to the inability of
the principals to monitor and control their agents. [While] canons can
be used to serve judicial interestssometimes at the expense of
aggregate social welfare . . . not all invocations of the canons are
antithetical to social interests. Often judges self-interested use of the
canons is perfectly consistent with societys interests.41
paragraphs the rules in accordance with which judgments are given. The common law on the
other hand is inarticulate until it is expressed in a judgment. Where the code governs, it is the
judges duty to ascertain the law from the words which the code uses. Where the common law
governs, the judge, in what is now the forgotten past, decided the case in accordance with
morality and custom and later judges followed his decision. They did not do so by construing the
words of his judgment. They looked for the reason which had made him decide the case the way
he did, the ratio decidendi as it came to be called. Thus it was the principle of the case, not the
words, which went into the common law).
40 Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial
Preferences, 45 VAND. L. REV. 647, 649 (1992).
41 Id. (Emphasis supplied). Compare, Marshall, supra note 27.
42 Russell Hardin, Liberalism, Constitutionalism, and Democracy, 1 CHIN. PUBLIC AFFAIRS Q.
255, 266 (2005) ([C]onstitutions are essentially weak devices. They can coordinate us if we can
coordinate ourselves, and probably not otherwise. Democracy is an even weaker device, because
we cannot make it work in any grand sense and we cannot be sure whether its results match
popular views, which are generally inarticulate, so inarticulate as to suggest that there may be no
popular view).
43 See, e.g., Scott Barclay & Shauna Fisher, Cause Lawyers in the First Wave of Same Sex
Marriage Litigation, in CAUSE LAWYERS AND SOCIAL MOVEMENTS 84-97 (2006).
44 Jeff Yates & Elizabeth Coggins, The Intersection of Judicial Attitudes and Litigant Selection
Theories:
Explaining
U.S.
Supreme
Court
Decision
Making
(Jan.
2009),
http://works.bepress.com/jeff_yates/3 (Selection Hypothesis posits that court outcomes are
largely driven by the litigants' strategic choices in the selection of cases for formal dispute or
adjudication -- forward thinking litigants settle cases where potential judicial outcomes are readily
discernable (e.g. judicial attitudes are known) the strategic case sorting process affect the
The integrated theories explicate the discretionary power of the judge and
the litigant on the resolution of the case, which further dissolve determinability.45
In constitutional law, when the use of canons of statutory construction and
precedents are expansive and unrestrained, the decisions arising from the
judgment ripples with effects of constitutional proportions. The Court, as a
pragmatic adjudicator becomes the shaper and predictor of the future.46
III. FOUNDATIONS OF DILEMMA
This dilemma of juristic indeterminacy is not at all unique to American
law and jurisprudence, particularly in respect to constitutional law. The processes
of legal transplantation have embedded juristic indeterminacy in the Philippine
constitutional jurisprudence through similar mechanisms. The history of the
Philippine legal system points to the imposition of not only the American
constitutional framework and institutions, but also their limitations and failures.
The earlier imposition of the Spanish civil tradition, while influential in Filipino
private law, has been diluted by the Anglo-American common law tradition.
Nevertheless, the civil law tradition contributes to the same effect of
juristic indeterminacy in Philippine constitutional law principally through
institutional limitations and pervasive sociolegal ideology, such as the judicial
respect of jurisconsults or commentaries to statutory codes. This
contemporaneity of the two transplanted colonial legal systems, with little
recourse to autochthonous law, is striking. In the words of Owen Lynch, Jr., To
an astonishing degree, the highly centralized Philippine national legal system
continues to utilize and reinforce legal structures and concepts first imposed
during the Spanish and North American colonial regimes.47
This mixed or hybrid legal traditions in the Philippine legal system
increase the opportunity for arbitrary jurisprudence by arming the judge and
justice with the interpretive tools of both legal systems.
influence of judge ideology or attitudes on judicial outcomes). See also George L. Priest &
Benjamin Klein, The Selection of Disputes for Litigation, 13 J. L. STUD. 1, 4 (1984) ([P]otential litigants
form rational estimates of the likely decision).
45 See Maureen Armour, Rethinking Judicial Discretion: Sanctions and the Conundrum of the Close
Case, 50 S. M. U. L. REV. 493, 504-505 (1997) (differentiating between a principled decisionmaking paradigm in judicial decision-making and a pragmatic adjudication paradigm, the
former is more restrictively traditional and formalistic view of the legitimate exercise of judicial
power and the latter, a more expansive view); P.S. Atiyah, From Principles to Pragmatism: Changes in
the Function of Judicial Process and the Law, 65 IOWA L. REV. 1249 (1980).
46 Marie A. Failinger, Against Idols: The Court as a Symbol-Making or Rhetorical Institution, 8 J.
CONSTL L. 367, 375-77 (2006).
47 Owen J. Lynch, Jr., The Philippine Indigenous Law Collection: An Introduction and Preliminary
Bibliography, 58 PHIL. L. J. 457, 457 (1983).
10
51
Id., 187-88.
See JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO
THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 27-33 (2d ed. 1985).
53 See Teodoro M. Kalaw, The Constitutional Plan of the Philippine Revolution, 1 PHIL. L. J. 204
(1914).
54 JOHN LAWRENCE TONE, WAR AND GENOCIDE IN CUBA, 1985-1898 218-22 (2006).
(Lurid accounts of reconcentration, combined with lower newspaper prices, more photographs,
and flashier typefaces, allowed Pulitzer to increase subscriptions to the [New York] World from
400,000 in 1895 to 822,804 in 1898. William Randolph Hearst employed the same techniques and
stories to raise the circulation of his New York Journal even more dramatically).
55 Id., 218. (Citations omitted).
56 Hearst was quoted, You furnish the pictures and Ill furnish the war when a Cubabased correspondent said, Everything is quiet. There is no trouble here. There will be no war. I
wish to return. See JAMES CREELMAN, ON THE GREAT HIGHWAY: THE WANDERINGS AND
ADVENTURES OF A SPECIAL CORRESPONDENT 177-178 (1901); OLIVER CARLSON & ERNEST
SUTHERLAND BATES, HEARST: LORD OF SAN SIMEON 97 (936).
52
11
57 Louis Livingston Seaman, The Problem of the Philippines, 30 ANN. AM. ACAD. POL. &
SOC. SCI. 130-134, 130 (1907). This statement would be belied by Western ethnocentrism rhetoric.
Id., 132-33 (To suppose that from the low-bred Filipino there could be evolved in a single
generation one worthy or competent to exercise self-government, is to defy every law of
anthropology and natural selection, and to indulge in the wildest optimism . . . Is the African or
Malay savage so infinitely the intellectual superior of the Caucasian, that he can emerge from his
savagery into this sphere of civilization, and attain this rich inheritance in a single decade?).
58 L. R. Wilfley, Our Duty to the Philippines, 10 YALE L. J. 309, 314 (1901).
59 Id., 313.
60 See W. A. Pfeffer, A Republic in the Philippines, 168 N. AM. REV. 310, 310-320 (1899) (Is
it too much to add that to Anglo-Americans is given the work of spreading the Gospel of good
will to men through commerce and Christianity, and thus carrying on the work of replenishing
the earth and subduing it?).
61 TONE, supra note 54, at 218. (Citations omitted.)
62 Albert J. Beveridge, The March of the Flag, Speech opening the Indiana Republican
Campaign at Tomlinson Hall, Indianapolis, September 16, 1898, in THE MEANING OF THE TIMES
AND OTHER SPEECHES 47-57 (1908).
12
But there are also those who want to haul down the flag. The political
pluralism in America brought about discordance in sentiments towards Philippine
annexation. Much of these critiques, however, revolve around prevailing Western
ethnocentrism.
In the words of Senator G. G. Vest, The idea of conferring American
citizenship upon the half civilized, piratical, muck-running inhabitants of two
thousand islands, seven thousand miles distant, in another hemisphere, and creating
a State of the Union from such materials, is so absurd and indefensible that the
expansionists are driven to the necessity of advocating the colonial system of
Europe, against which the American Colonies revolted when its application to them
was attempted by the King of England,64
Let us listen to that lofty resolution of Congress declaring the war with
Spain to be waged, not for conquest, but for humanity and the
liberation of Cuba from Spanish despotism; and then let us hear with
impatient disgust those who are shouting against hauling down the
flag, which they would dishonor and degrade by violating this solemn
pledge.
Let the flag of our Republic not be hauled down, but brought back
to congenial soil where it will wave over freemen, instead of floating
63
Id., 49-52.
G.G. Vest, Objections to Annexing the Philippines, 168 N. AM. REV. 112-120, 112 (1899).
Vest also provided for an account of constitutional jurisprudence against Americas colonialist
ambitions ([T]here is certainly no power given by the Constitution to the Federal Government
to establish or maintain colonies bordering on the United States or at a distance, to be ruled and
governed at its own pleasure, or to enlarge its territorial limits in any way, except by the admission
of new states, Vest, supra, at 114, citing Dred Scott v. Sanford, 60 U.S. 393, 446 (1857) 446; id.,
115, citing Loughborough v. Blake, 18 U.S. 317 (1820); The National Bank v. County of Yankton,
101 U.S. 129 (1880); Thomson v. Utah, 170 U.S. 343 (1898); The American Publishing Company
v. Fisher, 166 U.S. 464 (1897); Crandall v. Nevada, 73 U.S. 35 (1868).
64
13
above conquered islands in another hemisphere and ten million halfbarbarians bought for two dollars each.65
At the end of the debate, the capitalist interests won over racist derision
and the Philippine Islands would see the dominion of America. Ironically, the
Spanish-American War redolent of emancipation rhetoric became the
legitimization for Philippine subjugation. The Treaty of Paris of 1898 ended the
Spanish-American war only to affirm Americas beliefs of national greatness,
racial supremacy, commercial prosperity, military security, and territorial
expansion66 and clothed with the altruistic vision (or disillusion), acquired
Puerto Rico, Guam, and the Philippines as colonies. Cuba, meanwhile, gained its
independence.
The Treaty signaled the end of the Spanish Empire in the Americas and
the Pacific islands. The concession, signed on December 10, 1898, became a
concession that by virtue of Article III, Spain cede[d] to the United States the
archipelago known as the Philippine Islands [at] the sum of twenty million
dollars67
The Treaty marked the age of the United States as a world power and
domed the ceded territories upon the shadows of the American eagle. Indeed,
the period between 1898 and 1902 was a turning point in the development of
America as a world power. It was the birth of an empire and the emergence of
the United States as a paramount world power. America at last was recognized
and accorded as status of a colonial power, the same stature given to Germany,
France, Great Britain, Russia and Japan, the ruling imperial powers of the
period.68
C. Legal Chimerism and the Scope of Integration
The death of the Spanish sovereignty over the Philippines did not revive
the Philippines as a nation. The Castilian lion merely died and the American eagle
put up its eyrie upon the deserted den.69
As has been exclaimed, No sadder, no more shameful page has ever
been written in American history than that which [has been] written in the
Philippine islands. The United States, the land of freedom and justice, mowing
down the Filipinos by thousands, because they wish to be free and independent
65
Id., 120.
RENATO PERDON, FOOTNOTES TO PHILIPPINE HISTORY 59 (2010).
67 Treaty of Paris of 1898, 30 Stat. 1754, Dec. 10, 1898.
68 PERDON, supra note 66, at 55.
69 Legal chimerism here is inspired by the metaphor of Justice Jose P. Laurel, [The]
cross-breeding of the Castilian lion and the American eagle had resulted in the evil birth of a
phenomenal creature. JOSE P. LAUREL, ASSERTIVE NATIONALISM 80 (1931), quoted in Cesar
Lapuz Villanueva, Comparative Study of the Judicial Role and its Effect on the Theory on Judicial Precedents in
the Philippine Hybrid Legal Systems, 65 PHIL. L. J. 42, 42-43 (1990). The term chimera, describing
an imaginary monster compounded of incongruous parts, fits Justice Laurels metaphor. The
admixture of Spanish and Anglo-American law in the Philippines is not symmetric as the term
hybrid connotes. See infra, Part III-C and Part IV. The term chimera is arguably more
accurate.
66
14
themselves! The United States, which righteously went to war with Spain to
liberate Cuba, actually taking the place of Spain in shooting down a people who
have suddenly, from being patriots and lovers of liberty, become to us rebels
and traitors, because they decline to have the shackles of our sovereignty thrown
without ceremony upon their wrists!70
The Malolos Constitution that embodied the ideal of the Republic of the
Philippines was stripped of its authority as America claimed its purchase.71
Consequentially, the civil legal tradition of Spain had to accommodate to the
common law brought by America and due to the usurping of sovereignty, the
political and constitutional laws were entirely abrogated. As summarized by the
Filipino legal luminary, Jorge Bocobo,
The Civil Code has suffered modifications by the publication of the
Code of Civil Procedure which introduced new rules of guardianship,
administration of decedents estates, evidence and prescription. Those
parts of the Mercantile Code relating to sociedades annimas, commercial
papers, insolvency and prescription have been replaced by Act No.
1459, the Negotiable Instruments Law, the Insolvency Law, and the
Code of Civil Procedure, respectively, all of which originate from the
American law. As for the Spanish Penal Code, the Commission has
passed many Acts on crimes, according to American models. Our
entire adjective law is likewise drawn from American sources. Political
law is, of course, also patterned after American standards.72
70
The Conquest of the Philippines, 61 THE ADVOCATE OF PEACE (1984-1920) 54-56 (1899).
See Allan Chester Nadate, Failures of Philippine Constitutional Transplantation,
www.academia.edu/4761328 (2013) (discussing milestones on Philippine constitutional
transplantation and the resulting legal irritation).
72 Jorge Bocobo, Civil Law under the American Flag, 1 PHIL. L. J. 284, 302 (1915).
73 Id., 302-304.
74 See In re Shoop, 41 Phil. 213 (Nov. 29, 1920).
75 Id.
71
15
76
George A. Malcolm, The Status of the Philippines, 14 MICH. L. REV. 529, 549 (1916).
In re Shoop, 41 Phil. 213 (Nov. 29, 1920).
78 Id. The Court concluded, among others, that: In interpreting and applying the bulk of
the written laws of this jurisdiction, and in rendering its decision in cases not covered by the letter
of the written law, this court relies upon the theories and precedents of Anglo- American cases,
subject to the limited exception of those instances where the remnants of the Spanish written law
present well-defined civil law theories and of the few cases where such precedents are
inconsistent with local customs and institutions and The jurisprudence of this jurisdiction is
based upon the English Common Law in its present day form of Anglo-American Common Law
to an almost exclusive extent.
79 See OLIVER WENDELL HOLMES, THE COMMON LAW 1 (1881). (The life of the law
has not been logic; it has been experience. The felt necessities of the time, the prevalent moral
and political theories, intuitions of public policy, avowed or unconscious, even the prejudices
which judges share with their fellow-men, have had a good deal more to do than the syllogism in
determining the rules by which men should be governed).
80 For example, in common law crimes, see OLIVER WENDELL HOLMES, THE COMMON
LAW 135 (1881) (Paulo J.S. Pereira & Diego M. Beltran eds., 2011) (While the facts are
77
16
uncertain, as they are still only motives for decision upon the law,grounds for legislation, so to
speak,the judges may ascertain them in any way which satisfies their conscience).
81 Gunther Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up
in New Divergencies, 61 M. L. REV. 11 (1998). See Melquiades J. Gamboa, The Meeting of the Roman
Law and the Common Law in the Philippines, 49 PHIL. L. J. 304 (1974).
82 Charles S. Lobingier, Blending Legal Systems in the Philippines, 21 L. Q. REV. 401, 401-402
(1905) ([T]he Siete Partidas form to-day a sort of a common law for the Philippines. This is a
model of concise, comprehensive, and systematic codification).
83 Villanueva, supra note 69, at 54-55.
84 See MERRYMAN, supra note 52, at 55.
17
85
18
The exegetic method emphasizes respect for the will of the legislator,
wherein obscurity of the law must be resolved through the examination of the
legislative history or travaux prparatoire: If the legislative history is confused, or
the law is too old, the judge will look at other considerations and use . . .
teleological interpretation method. This approach is mostly used by the highest
courts, the Cour de cassation and the Conseil dEtat.
Descending from the French Code of Napoleon, the Spanish civil
tradition, on the other hand, provides for the methods of interpretation by which
judges must adhere to. In modern Spain, the guideline for statutory construction
is provided by the 1889 Spanish Civil Code, as amended, which must be applied
consistently with the principles of the Spanish Constitution; the international law
which has been expressly accepted by Spain; and the decisions by the two highest
courts (the Tribunal Supremo and the Tribunal Constitucional).92
In addition, Spanish courts may also invoke legal maxims or aphorisms in
order to support their decisions.93 Statutory construction is thus codified in the
Spanish Civil Code. Article 3(1) of the Code provides that
88
See H. MAZEAUD, J. MAZEAUD & FRANOIS CHABAS, LEONS DE DROIT CIVIL (2d
ed. 2000), cited in Claire M. Germain, Approaches to Statutory Interpretation and Legislative History in
France, 13 DUKE J. COMP. & INTL L. 195, 196 (2003).
89 Germain, supra, note 88 at 196, citing Civil Code (France), art. 4, reprinted in GEORGE A.
BERMANN ET AL., FRENCH LAW 4-10 (1998).
90 Id. (More modern civil-law codes contain such provision.)
91 Id., 196-197.
92 Victor M. Gonzalez Ruiz, Unravelling the language of the law in Spanish courts, 18 IBRICA
93, 95 (2009).
93 Id., at 94.
19
Las normas se interpretarn segn el sentido propio de sus palabras, en relacin con
el contexto, los antecedentes histricos y legislativos, y la realidad social del tiempo en
que han de ser aplicadas, atendiendo fundamentalmente al espritu y finalidad de
aquellas.94
94 Civil Code (Spain), art. 3(1), reprinted in CIVIL CODE (Ministrio de Justicia trans. 2009)
(Rules shall be construed according to the proper meaning of their wording and in connection
with the context, with their historical and legislative background and with the social reality of the
time in which they are to be applied, mainly attending to their spirit and purpose).
95 Id., art. 4(1) (Where the relevant rules fail to contemplate a specific case, but do
regulate another similar one in which the same ratio is perceived, the latter rule shall be applied by
analogy).
96 Gonzales Ruiz, supra note 92, at 96. ([S]ubsection [sic] 3(1) does not express a
straightforward rule of construction, but refers to several (potentially contradictory) elements
which must be taken into account at interpreting the law. These elements are the following:
grammatical . . . logical . . . systematic . . . historical . . . social . . . and purposive).
97 Id., 102, citing M. SEGURA ORTEGA, SOBRE LA INTERPRETACIN DEL DERECHO
(2003).
98 See Nuno Garoupa, Fernando Gomez-Pomar & Veronica Grembi, Judging under
Political Pressure: An Empirical Analysis of Constitutional Review Voting in the Spanish Constitutional Court,
29 J. L., ECON. & ORG. (2013).
20
99
21
102 Germain, supra note 88, at 199. See also FRANOIS GNY, 1 MTHODE
DINTERPRTATION ET SOURCES DU DROIT PRIV FRANAISE (2d ed. 1919); JEAN CARBONNIER,
DROIT CIVIL 177 (12th ed. 1979). See also Victoria F. Nourse & Jane S. Schacter, The Politics of
Legislative Drafting: A Congressional Case Study, 77 N. Y. U. L. REV. 575, 578 (2002) ([T]here may be
important institutional differences between the judicial and legislative branches when it comes to
the values that shape the drafting processdifferences we characterize in terms of interpretive
versus constitutive virtues).
103 See, e.g., MERRYMAN, supra note 52, at 48-55.
104 Ezra R. Thayer, Judicial Legislation: Its Legitimate Function in the Development of the Common
Law, 5 HARV. L. REV. 172, 173 (1891).
105 Id., 199.
106 Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of
Statutes, 54 WM. & MARY L. REV. 753, 757 (2013).
107 Id. (By embracing legislative history circa 1940, judges were taking up a source of
which the bureaucracy was a privileged producer and usera development integral to judges
larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a
statist tool of interpretation).
22
and now enjoy ascendancy among judges and legal scholars. Insofar as it can be
quantified, one study found that reliance on the canons in the Supreme Courts
majority opinions has experienced a dramatic uptick in the past decade, from
below 30% to above 40%.108
They form a body of interpretive common law, strengthened by
precedents, that legitimizes sources and methods of legal reasoning, with the
legislative intent in mind.109 While legislative history plays a prominent function in
the quest of discovery for the Congress (or the Framers, in terms of the
Constitution), canon and the precedential value figure as essentially where
purposive interpretation is sought and statist exceptionalism, stagnancy, and
exclusionism are avoided.110
The observance of the doctrine of precedent in Anglo-American
jurisprudence should, in theory, guarantee the uniformity of judicial decisions,
which civil law statutory construction fails to pragmatically or effectively
address.111 As to judicial discretion, common law judges traditionally have
inherent equitable powers: they can mold the result in the case to the
requirements of the facts, bend the rule where necessary to achieve substantial
justice, and interpret and reinterpret in order to make the law respond to social
change. These powers are not seen as threats to certainty in law; indeed certainty
is to be achieved through the doctrine of stare decisis, itself a judicial doctrine. The
difficulties of rationalizing the demand for certainty and the justice of the
individual case thus become problems for solution by the judges themselves.112
With the engraftment of American law, statutory and constitutional
interpretation is dominated by common law principles, which along the
framework of equity becomes inherently discretionary,
The characteristic method of the common law is, as we have seen, to
work along from case to case, dealing with each one as it arises, and
disclaiming any intention of framing a general rule. However it may be
in other cases, the court will say, on these facts the law is clear. It is
common to see extremes at which the law is clear, while the line at
which they divide remains obscure until determined by the gradual
convergence of the cases. By the slow course of decision just so much
law is developed as society requires, and no more; and later generations
are left free to fill in the gaps in accordance with their own notions, as
little hampered as may be by those of an earlier age. In the process of
reconciling and adjusting the authorities, and extracting from them the
principle for which they stand, there is a constant tendency to mould it
into a form which corresponds with the later conceptions of justice and
expediency, and which, though consistent with the actual result of the
earlier cases, may be quite foreign to the ideas of those who decided
them. The growth of the law, as it is sometimes said, is rational rather
108 Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 GEORGETOWN . J.
344-345 (2010). (Citations omitted).
109 Id., 346; Kim & Costello, supra note 35 and accompanying text.
110 See Parrillo, supra note 101.
111 Gonzales Ruiz, supra note 92, at 105 (For the moment, to rely on the proper
meaning of words as a primary method of construction of legal texts constitutes an approach
to statutory interpretation which seems neither pragmatic nor effective).
112 MERRYMAN, supra note 44, at 51.
23
113
24
VI. CONCLUSION
The historical context of the Philippine legal system reveals the
interaction of the two great legal systems of the world, with different modes of
inquiry into the nature of constitutional text and meaning.
With the arguably polar epistemic characters of the civil law and common
law, the Philippine legal chimera or hybrid that has resulted from this postcolonial synthesis has incorporated a wider discretion than what the two systems
individually and normatively prescribes. The Philippine Supreme Court,
consequently, dispenses its constitutional mandates and duties armed as a
Superjudiciary,120 especially in light of the 1987 Philippine Constitution.121
But as the Court itself has echoed, With great power comes great
responsibility.122 Whether the Court, in exercise of its awesome powers shall
maintain the clarity, certitude, uniformity, predictability, and reliability of the
Charter remains to be seen.123 The hovering and pernicious presence of
indeterminacy in the law of the Justices threatens to trump the legitimacy of the
very constitutional order.124
As the Court make[s] the hammer fall, and heavily where the acts of
[government] departments, or of any public official betray the peoples will in the
Constitution,125 then and there shall the dread or confidence of the Filipino
people be resolved. The language of the Law, for now, anticipates the articulation
of its lawness beyond proclivities or dictum.126
120
See generally PACIFICO A. AGABIN, MESTIZO: THE STORY OF THE PHILIPPINE LEGAL
SYSTEM (2011).
121 The present Philippine Constitution has vested upon the Supreme Court a more
expansive power of certiorari, see CONST., art. VIII, 1 (The judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law. Judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government). See Francisco v. House of Representatives, G.R. No.
160261, 460 Phil. 830, Nov. 10, 2003; Gutierrez v. House of Representatives Committee on
Justice, G.R. No. 193459, Feb. 15, 2011; Belgica v. Ochoa, G.R. No. 208566, Nov. 19, 2013. See
also, Nadate, supra note 71 (forwarding redemptive constitutionalism as a theory of Philippine
constitutional law).
122 Province of Rizal v. Executive Secretary, G.R. No. 129546, Dec. 13, 2005.
123 See Antonin Scalia, The Rule of Law as a Law of Rules, 56 UNIVERSITY OF CHICAGO
LAW REVIEW 1175, 1179 (1989) (Even in simpler times uncertainty has been regarded as
incompatible with the Rule of Law. Rudimentary justice requires that those subject to the law
must have the means of knowing what it prescribes. Predictability, or as Llewellyn put it,
reckonability,is a needful characteristic of any law worthy of the name.).
124 See League of Cities of the Philippines v. Commission on Elections, supra note 17
(Sereno, J., dissenting) ([T]he pendulum swing of the Courts decisions has yielded unpredictability
in the judicial decision-making process and has spawned untold consequences upon the publics
confidence in the enduring stability of the rule of law in our jurisdiction).
125 Association of Small Landowners in the Philippines, Inc., v. Secretary of Agrarian
Reform, G.R. No. 78742, 175 SCRA 343, 365, July 14, 1989; Osmea v. Commission on
Elections, G.R. No. 100318, July 30, 1991.
126 See HART, supra note 11, at 1-17; James G. March, Sociological Jurisprudence Revisited, A
Review (More or Less) of Max Gluckman, 8 STAN. L. REV. 499, 511 (1956); JOSEPH RAZ, PRACTICAL
REASON AND NORMS 170 (2d ed. 1990) (The problem of the normativity of law is the problem
of explaining the use of normative language in describing the law or legal situations).
25