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HISTORICAL

PERSPECTIVE
OF LAW
A Legal Philosophy Report

Submitted to:
Atty. Rochelle Dakanay-Galano

Professor

Respectfully Submitted by:


ANACTA, Virlyn Grace
BULLECER, Cazzandhra Mae
DANSAL, Angelica Krystle
DELA FUENTE, Rachel Ann
Legal Philosophy
1-C

Table of Contents
a. Historical Perspective as a Starting Point . . . . . . . . . . . . . . . . . . . .

b. Historical Element in the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

c. Historical View Limited in Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


d. Nature of the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
i. The Oblutiacs of People. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ii. The Folksoul. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
e. Life of the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
f. Basic Points in Historical Jurisprudence. . . . . . . . . . . . . . . . . . . . . . . 5
i. State and Folksoul. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ii. Law Not Deliberately Made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
g. Similarity of Different Legal Orders. . . . . . . . . . . . . . . . . . . . . . . . . . 6
i. Historical Reason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
ii. Jurisprudential Reason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
h. Value of Historical Perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
i. Introduction to History of Philippine Legal System

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j. History of Philippine Legal
System. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

i. Pre-Spanish Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
ii. The Spanish Regime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
iii. The American Era and the Commonwealth . . . . . . . . . . . . . . . . . .8
iv. The Japanese Occupation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
v. Period of the Republic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CHAPTER II: THE HISTORICAL PERSPECTIVE


A. HISTORICAL PERSPECTIVE AS A STARTING POINT
In terms of chronology, the historical school was preceded by the
teleogical school of jurisprudence. There are good reasons for starting with
the historical approach to the study of the nature of the law. The first is the
basis itself of the perspective of the historical school of jurisprudence. The
founder of historical school, Freidrich Karl von Savigny postulated that the
concept of the soul and spirit of the people provides the sense of beginning
and unfolding of the law. The other reason is the renaissance of the natural
law theory, which is the cornerstone of the house of teleogical jurisprudence.
Modern jurisprudents have ceased to consider or to pursue the
historical perspective as to the nature of the law. However, it is still useful in
the evaluation of the legal development of a nation especially its legal
history.
B. HISTORICAL ELEMENT IN THE LAW
The presence of the historical element in the law is manifested by at
least two important marks: 1) the changes in the social existence of the
people, and 2) the progressive conditions of their politico-legal development.
These historical facts are unavoidable and are still in progress, although they
may not have been uninterrupted. For historical jurisprudence, the law could
not have thrived except in this environment.
C. HISTORICAL VIEW LIMITED IN SCOPE
From the observation post of historical jurisprudence, the law is not
universal in scope. Law is only national; it is oriented to the time, place and
individuality of a particular group of people. The reason for this is that social
milieu varies from time to time, from place to place, and from people to
people.
D. NATURE OF THE LAW
In the words of Sir Henry Summer Maine, the acknowledged leader of
historical jurisprudence in England, the law is the product "of the huge mass
of opinions, beliefs, superstitions, and prejudices of a people produced by
institutions of human nature reacting upon one another. But the seedbed of
the law given by Maine is not quite adequate to explain the different
treasuries of the folksoul and hence, incomplete to contain the jural and
nonjural materials of a group of people. Maine explains only the existence of
two of the many treasuries of the folksoul.

1) THE OBLUTIACS OF A PEOPLE


Constituting the folk-soul or folk-mind of a people are their
OBLUTIACS, an acronym which, according to Prof. Pascual, means the
people's: Opinions, Beliefs, Longings, Usages, Traditions, Idiosyncracies,
Arts, Customs, and even Superstitions.
2) THE FOLKSOUL
The folk-soul is composed of several elements. Each element is a
treasury of the national character of the people. Together they form the
common consciousness and intelligence of the people. Together they reveal
the people's cultural identity.
a) Folklore
This element is composed of the beliefs and traditions of a people.
They constitute of the folk learning or folk wisdom (paniniwala). The
folklore may survive in the form of epic tales, which are very rare. A good
example in the Philippines is the epic of Ibalon, an ancient narrative of the
various phases of the early life in the Bicol region during the reign of
Handiong. There are others, like the Darangan, notably the Indarapatra, the
epic of the Muslims of Lake Lanao; the Biag ni Lam-ang, the epic of the
Ilocano region; the Tuwaang of the Bogobos of Davao; the epic of the
Bornean colonizers of the Island of Panay, which is recorded in the
Maragtas, where Datu Sumakwel's code of laws is found. But a great deal of
peoples beliefs and traditions has survived in the form of telling parables
(talinghaga) and riddles (bugtong).
b) Folksaying
This element of the folksoul is composed of the opinions xxx, the
rural reflections of a people. The folksaying is composed of the proverbial
maxims (salawikain) and sentiments (sabi) of the people. Maxims are short
pithy statements containing a general doctrine or truth. Sentiments are more
or less the settled sense of the people.
c) Folkway
Folkways or kaugalian are rational and widespread habitual courses of
actions or practices (ugali) which have been followed and enforced by a
group of people. Thus in the early times, folkways provided the first sources
of rules. The obligatory nature of the folkways stems from the deep-seated
desire of the members of the group to keep the respect and esteem of the
group by upholding them. Thus, folkways or kaugalian have become definite
norms of activity and conduct.

d) Folksong
This form of expression of a people's interests and feelings contains
their rejoicings (diyuna), lamentations (panaghoy), longings (mithi), and
aspirations (adhika).
e) Folkdance
It is possible that they were regarded as religious ceremonies in the
beginning. There are appropriate folk dances dedicated tot he people's object
of reverence and awe; folkdances which have to do with ceremonials like
war or hunting; folkdances connected with celebrations or play like wedding
or thanksgiving; folkdances related with work like planting and harvesting;
and folkdances which have to do with love and affection like dances of
courtship, rejection, or fertility.
f) Folkart
This category, broadly known in Pilipino as sining, is composed of the
skill and art peculiar to a people. xxx. To a great extent the first objects were
basically utilitarian or symbolic. Later came the objects of beauty and color.
E. LIFE OF THE LAW
For historical jurisprudence, the folksoul became a storied and
documented being, no longer a theory but a historical being embodying a
soul and spirit of the people. From this observation point, the law is
considered as the revelation and development of the national spirit.
F. BASIC POINTS OF HISTORICAL JURIPRUDENCE
1) STATE AND FOLKSOUL
As human relations progressed from family or clan to community and
further to large-scale territory, a sense of national awareness grew among the
people, "where the individual, without shedding his narrower relationship
with his family and region, became related, and, in certain instances, even
subordinated, to the national interests."
Following the above-mentioned pattern of expansion of human
relations of the people, the process of keeping peace and order grew apace
with it. At the family-clan level, a direct appeal to the head of the family or
clan was enough to resolve human conflicts. As progress continued,
something like a communal type of dispute resolution mechanism emerged.
Eventually, as progress became more complicated, the pattern of dispute
resolution and maintenance of peace and order gave way to the more
complex machinery of the body politic, i.e., the State with a national
government, where the reins of government were placed in the hands of, and
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practiced by, a professional group in the community and where the people
were bound by common centers of interests and purposes.
The State is thus considered as the highest expression of the folk-soul
or diwa of a people. Indeed, it is the highest national structure erected by the
socio-political development of the people. In another way of saying it, the
body politic is considered by historical jurisprudence as the final juristic
personification of a nation or people.
2) LAW NOT DELIBERATELY MADE
In the view of the historical school, therefore, "the law is not
deliberately made by the effort of human reason, but is the product of
common conviction, the folk-soul (which) awakens this conviction, and
(that) the law is historically determined." In the words of Mr. Justice
Cardozo, "history built up the system and the law that went with it." Quoting
Dean Pound, Pascual writes:
Reason alone cannot work miracles in legal development nor
work wonders in constitution making, decision making,
codification, or legislation. The growth of law is a historical
process. It does not proceed from the peremptory or arbitrary
will or wish of the legislators or judges.
G. SIMILARITY IN DIFFERENT LEGAL ORDERS
Historical jurisprudence to reconcile its concept of the nature of law with
phenomenon that in some groups of people there is a similarity in their legal
orders.
HISTORICAL REASON
In the process of development of a group of people, many outside factors
or foreign trait-complexes, may have been assimilated by the people.Some
aspects of the foreign legal system may be inconsistent with the oblutiacs of
the people coming under the dominion of another group of people.
JURISPRUDENTIAL REASON
The precepts of justice and fairness, which is permanent and present in
all men everywhere since they are impressed in the human heart and mind,
explains the resemblance or similarity in some aspects of the legal orders of
different principles
Example: the Philippine legal order provides as a general rule that actions
prescribe by lapse of time, which may be different with different peoples
(folkways).

H. VALUE OF HISTORICAL PERSPECTIVE


To policy makers and government functionaries, legal research is to be
oriented to the soul and spirit of the people.
In the Philippines, the CIVIL CODE is partly based on the OBLUTIACS
of the Filipino People. In the original draft of the Civil Code of the
Philippines, there were provisions intended to supplement Article 9, which
provides that no judge or court shall decline to render judgment by reason of
the silence, obscurity or insufficiency of the laws. The proposed provisions
in the draft provide that if a law does not dissolve a disputed point, the
folkway shall govern. In its absence, the folklore or paniniwala of the people
on justice and equity shall serve as guides to judicial determination.
Other examples of provisions in the Civil Code which were based on
folksoul are:
a.
b.
c.
d.

Article 19 to 36 Philippine folkway concerning human relations


Absolute Community Property between spouses (Family Code)
The FAMILY as a social institution (Family Code)
Concept of Family Home (Family Code)

With or without the modifications the historical doctrine of the nature


of the law as the life and spirit of the people is valuable and practicable in
the legal ordering of society.
I. INTRODUCTION TO THE HISTORY OF PHILIPPINE LEGAL
SYSTEM
The Philippine legal system is aptly described as a blend of customary
usage, and Roman (civil law) and Anglo-American (common law) systems.
The civil law operates in areas such as family relations, property, succession,
contract and criminal law while statutes and principles of common law
origin are evident in such areas as constitutional law, procedure, corporation
law, negotiable instruments, taxation, insurance, labor relations, banking and
currency. In some Southern parts of the islands, Islamic law is observed.
This particular legal system is the result of the immigration of Muslim
Malays in the fourteenth century and the subsequent colonization of the
islands by Spain and the United States.
J. HISTORICAL BACKGROUND
Philippine legal history and the effects of colonization of other
countries to our laws:

a. Pre-Spanish Period
Historians have shown conclusively that the early Filipinos lived in
numerous independent communities called barangays under various native
rules which were largely customary and unwritten. Evidence points to the
existence of two codes, namely, the Maragtas Code issued by Datu
Sumakwel of Panay Island some time between 1200 and 1212 AD and the
Penal Code of Kalantiao issued by a datu of that name in 1433.
These customary laws dealt with subjects such as family relations,
inheritance, usury, partnerships, loans, property rights, barter and sale, and
crime and punishment. Like many ancient societies, trial by ordeal was
practiced in the barangay.
b. The Spanish Regime
The arrival of Ferdinand Magellan in the Philippines on 16 March
1521 presaged a new era in the history of Philippine law.
Spanish laws and codes were extended to the Philippines either
expressly by royal decrees or by implication through the issuance of special
laws for the islands. The most prominent of these laws and codes were the
Fuero Juzgo, Fuero Real, Las Siete Partidas, Las Leyes de Toros, Nueva
Recopilacion de Las Leyes de Indias, which contained all the laws then in
force in the Spanish colonies and the Novisima Recopilacion, which
comprised all the laws from the fifteenth century up to 1805.
c. The American Era and the Commonwealth
The end of the Spanish-American War, which was followed by the
signing of the Treaty of Paris on 10 December 1898, paved the way for the
cession of the Philippines to the United States. Upon the establishment of
American sovereignty, the political laws of the Philippines were totally
abrogated and Spanish laws, customs and rights of property inconsistent
with the US Constitution and with American principles and institutions were
superseded. The government operated under different organic laws, namely:

President MacKinleys Instructions to the Second Philippine


Commission on 07 April 1900;
the Spooner Amendment of 1901;
the Philippine Bill of 1902; t
he Jones Law of 1916 and
the Tydings-MacDuffie Law of 1934.

Pursuant to the Tydings-MacDuffie Law, a Commonwealth


government was to be established for a transitional period of ten years
before independence could be granted. Likewise, it granted to the Filipinos a
right to formulate their own Constitution. In due course, a constitution was
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approved on 8 February 1935 which was signed by US President Franklin D


Roosevelt on 23 March 1935 and ratified at a plebiscite held on 14 May
1935, voters went to the polls to elect the first set of executive and
legislative officials led by President Manuel L. Quezon and Vice-President
Sergio Osmea.
d. The Japanese Occupation
On 08 December 1941, the Philippines was invaded by Japanese
forces and was occupied until 1944. during the three-year military rule, a
1943 Constitution was drafted and ratified by a special national convention
of the Kapisanan sa Paglilingkod ng Bagong Pilipinas (KALIBAPI),6 which
led to the establishment of the short-lived Japanese-sponsored republic
headed by President Jose P Laurel.
During the Japanese occupation, the Commonwealth, then in exile,
functioned in Washington DC from 13 May 1942 to 03 October 1944 until
its re-establishment in Manila on 28 February 1945 by President Sergio
Osmea.
After the liberation of the Philippines, the Filipinos picked up where
they had left off before the holocaust. The period of reconstruction and
rehabilitation began. Efforts were also made at continuing the program
which constituted a part of the transition preparatory to complete independence from the United States of America.
e. Period of the Republic
In fulfillment of her promise to grant Philippine independence, the
United States proclaimed the Philippines a sovereign state on the historic
morning of July 4, 1946. With this came new responsibilities for the
Filipinos.
The first decade since the proclamation of Philippine independence
saw three Presidents with varied temperaments. President Manuel A. Roxas,
who had the honor of being the last President of the Common- wealth and
the first President of the Republic, dedicated his administration to the task of
laying the foundations of the republican institutions and the independent
existence of the country. The program of rehabilitation and reconstruction
did not becloud the concern for social and economic reforms, and even legal
development. When President Elpidio Quirino succeeded President Roxas,
after the latter's untimely death, the former continued the program of his
predecessor.
A radical change came about with the election of President Ramon
Magsaysay. Great emphasis was given to the rights of the common "tao" to
the effect that "he who has less in life should have more in law."

Except for the sudden resurgence of nationalism, especially during the


administration of President Carlos P. Garcia, the second decade of the
Republic has been merely a continuation of the basic programs of the
previous administrations. It is, however, significant to note that under the
administration of President Diosdado Macapagal, there was an attempt to
revise some aspects of our semi-feudal legal system in order to fit the
program of agro-industrial development for the country. Economic and
social developments were also brought about with the ideas expressed by
Filipino thinkers as basis. With the inauguration of President, Ferdinand E.
Marcos, there has been a focus on national greatness, drawing inspiration
from the monumental grandeur of the nation's heroic past.
The1973 Constitution of the Republic of the Philippines, promulgated
after Marcos' declaration of martial law, provides for a parliamentary form
of government.
Presidential Proclamation No. 3, popularly known as the
1986Provisional Freedom Constitution,was the most far reaching set of
amendments to the 1973 constitution that it was almost a constitution in its
own right. However, it is really a large set of amendments which superseded
and abolished certain provisions from the constitution. It granted the
President certain powers to remove officials from office, reorganize the
government and hold a new constitutional convention to draft a new
constitution
Following the EDSA People Power Revolution that removed
President Ferdinand E.Marcos from office, the new President, Corazon C.
Aquino issued Proclamation No.3 and the adoption of a provisional
constitution that would prepare for the next constitution which became the
1987 Constitution.

Sources:
Pascual,Crislito.IntroductiontoLegalPhilosophy.Tenthed.Quezon:U.P.
LawCenter,2003.
Balbastro, Arturo E.. Philippine Legal Philosophy. Fellowship in
Jurisprudence .NECICA U.P. Faculty Development Program.
Websites:
http://aboutphilippines.ph/filer/phil_history-of-law.pdf

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