Mestizo:

The Story of the Philippine Legal System

Pacifico A. Agabin
Chapter 1: Indigenous Legal Culture

I. Who are the Indigenous People?
a. Defined by a recent law (RA 8371) as referring to a group of people or
homogenous societies identified by self-ascription or ascription by others
who have continuously lived as organized community on communally
bounded and defined territory, and have, under a claim of ownership since
time immemorial, occupied and utilized such territories, sharing common
bonds of language, customs, traditions, and other distinctive cultural traits
who have, through resistance to political, social, and cultural inroads of
colonization, non-indigenous religion and cultures, become historically
differentiated from the majority of Filipinos.
b. Also included are people who are considered indigenous on account of their
descent from the populations which inhabited the country at the time of
conquest or colonization, who have been displaced from their traditional
domains or have resettled outside their ancestral domains.
c. Distinction that sets indigenous people apart from regular Filipinos: non-
Christians who live in less accessible, marginal and mostly upland areas who
are self-governed and do not rely on the central administration, and who
follow ways of life that are perceived as different from the rest of the
population.
d. According to one scholar, our indigenous people do not really fit into a
singular category (some have centralized governments, some are not; some
are wet-rice agriculturists, some are shifting cultivators, etc.), but a clear-cut
gap sets them apart from the major social and historical trends, and are
ostracized by the larger society.
II. The Early Inhabitants
a. Tabon Cave men: earliest inhabitants of the country according to Dr. Robert
Fox; live in caves in Palawan as early as 50,000 years ago
i. Under wave migration theory, reached the Philippines through land
bridges from Borneo
b. Other scientists: first settlers are the Aetas or Negritos who came around
8,000 BC during the Stone Age;
c. Between 1,000 BC and 500 AD, Malays came over from Malaysia
i. Sri-Vijaya (the great Malay empire based in Sumatra) colonized the
Philippines as they found their capital in Cambodia
ii. Balangay: boats used by the Malays to come to the Philippines
iii. Malays settled down at river-mouths, founding a river-based society
d. Dr. F. Landa Jocano (Filipino anthropologist): earliest ancestor was the Java
Man (believed to have existed in the island of Java 2 million years ago)
 e. Wave migration theory largely debunked; only two movements of people in
Southeast Asia: Australoid people (ex. Negritos), then Southern Mongoloid
people (5,000 or 6,000 years ago)
III. The Concept of Legal Culture
a. E. Adamson Hoebel: Law must have its proper frame of reference, so the
proper study of law requires a look at society and culture at large to
determine its place within the total social structure
i. Distinction between human and animal societies: animal behavior is
instinctual while human behavior is learned
ii. Culture is learned behavior in the aggregate; integrated sum of
behavior patterns which are manifested and shared by members of a
society
b. Tabon cave men (50,000 BC, Stone Age): ancient legal culture is no different
from that of other groups in the region
c. The greatest fear of the primitive man was the unknown. The unknown were
terrible acts and fortuitous events caused by supernatural beings or the
forces of nature. Man sought to propitiate these supernatural beings with
offerings of food or animals, with religious rituals or loud incantations.
d. From offerings and rituals sprang norms of conduct called custom. The
rituals, if effective, would be repeated and would become a habit, until they
become custom, then tradition.
e. Basic patterns of ritual response to repeated deviations (homicide, theft,
adultery, etc.) began to emerge; method of reasoning by analogy emerged.
i. Maine: Prohibitions and ordinances were made to apply to all acts of
the same class, because a man who is afraid of the anger of the gods
for doing one thing will avoid doing another thing remotely like it.
f. Primitive man either feared or revered the forces of nature (nature is the
great unknown; could cause untold calamities of plentiful harvests).
i. Adored objects of nature as they consider them something to be
respected animism.
ii. They attributed local spirits to objects of nature. When these spirits
took human form, the early concepts of law and justice became
linked to the gods. Soon, certain gods were considered specific
guardians of law (places of jurisdiction were dedicates, invoked when
violation of certain norms occurred, etc.)
g. Primitive man started to use his brain and started to reason, analyze,
distinguish started the development of the legal system (Stone Ages
version of law reform).
i. The primitive mind started to doubt the premises of some accepted
customs and traditions (ex. Why go to war with the whole tribe when
you can just kill your enemy?)
ii. An eye for an eye, a tooth for a tooth adopted. Primitive man started
rejecting the idea of overbreadth, or overkill. Alternatives to tribal
 wars and headhunting: equivalent compensation gave birth to the
idea of damages (compensation for death or injuries).
iii. Fernandez on Ifugao research: Ifugao system of justice is an evolved
alternative to lex talionis, through a public determination of the truth
concerning an alleged wrong participated in by the community, and
buying off the vengeance due.
iv. Hoebel and Barton: procedure among the Ifugaos (except for
homicide cases calling for direct blood revenge) requires the use of a
go-between acting as an advisor or mediator.
v. Idea of mediation not easy for Stone Age ancestors: human thirst for
revenge insatiable.
1. Ancient Filipinos believed that the spirit of a dead ancestor
would not rest until his killing is avenged by a relative.
2. Idea of damages had to be made palatable by shrouding them
in religion to make it acceptable to the whole tribe.
3. Headhunting for revenge minimized by intercession of a
middleman who proposed reconciliation by offering to a god
called Manglobar who soothed angry hearts. (Ifugao example:
intervention of gods in the vindication of the innocent and the
exposure and condemnation of wrongdoing, through
repentance by acknowledgement of guilt, of stipulated
reparation, and reconciliation through healing rituals).
vi. The practice of reconciliation led to the custom of peace pacts
between the heads of tribes.
IV. Evolution of Customs into Law: From the Stone Age to Agriculture
a. Replacement of old customs with new ones and the evolution of custom into
law came slowly.
b. Hoebels 4 basic elements of a legal system:
i. Norms
ii. Regularity of enforcement
iii. Judgement mechanisms
iv. Enforcement
c. Fernandez suggests two criteria proposed by legal anthropologists:
i. Must be a rule of general character prescribing a specific norm of
conduct
ii. There must be some form of sanction imposed by the community in
case the norm is not observed
d. Fernandez says that with regards to the second requirement, since the
ancient society did not codify their laws, the test was met where a right or a
privilege was recognized, or some duty or liability imposed, or a particular
proceeding or other exercise of public authority authorized.
i. In some instances, sanctions may have been acknowledged by the
ancients to only be imposed by the gods or spirits they worshipped or
feared.
 e. Hoebel: Sanctions for violations of norms may either be positive or negative.
f. For norms to qualify as law, the fundamental requisite is the legitimate use
of physical coercion by a socially authorized agent.
g. As customs change and new ones take their place, the replacement may
acquire general characteristics if it becomes acceptable to the populace
i. Hoebel: Cultures are never static and in the course of time may
produce results which if compressed into a short span of time would
be unacceptable to the members of a given society.
ii. The measure of consistency between basic postulates and the specific
behavior patterns will be the measure of integration of the culture.
iii. William Henry Scott: Pre-hispanic Filipino culture is a vigorous and
mobile population adjusting to every environment in the archipelago,
creatively producing local variations in response to resources,
opportunities and culture contacts, able to trade and raid, feed, and
defend themselves.
iv. Example of headhunting:
1. Stone age aborigines began to fashion tools out of stone and
wood for killing game, but animals become scarce, so custom
for catching animals in their lairs instead of hunting them all
over the forest was started. The custom spread to other
members of the tribe. The custom of trapping came with the
tradition of hunting.
2. Labor, invention, as a mode of acquiring property: traps left in
the wild or nets left in the river are the exclusive property of
the trapper.
3. Theory of capture as a mode of acquiring property: Fish and
animals caught in the net belonged to the owner of the trap.
4. Theory of acquiring property by capture also applied to
humans, as our indigenes engaged in raiding adjacent
settlements to capture slaves and brides.
5. From hunting to trapping came domestication and agriculture,
which led our ancestors to settle in one place led to the
development of the law on property (offspring of their
animals also their property).
V. Notions of Property
a. Advent of agriculture led to the development of primitive mans notions of
property
i. Occupying a piece of land grants ownership to man and his family of
that piece of land property through occupancy.
ii. Mans right to possession is coextensive with his power to keep his
property man has to be strong enough to drive away people who
coveted his property.
 iii. Situation occurred at the time when man was a lone hunter, but
when tribes formed, there came authorities to impose obligations
and define rights to property.
iv. Property can more properly be seen as a creation of an order from an
authority who possesses the power to enforce his decrees and
decisions.
v. By the time our ancestors started staking claims on land or animals,
they were already living in a community of families, a barangay, a
tribe.
b. By the time the Spaniards arrived in the Philippines, there was already a
notion of property as a bundle of rights.
i. Our primitive ancestors developed legal postulates generalized
statements of the tendencies actually operating, of the
presuppositions on which a particular civilization is based.
ii. Hoebel: A chief function of law is selecting norms for legal support
that are in line with the basic postulates of the culture in which the
law system is set.
iii. Henry Maine: Private property was formed by the gradual
disentanglement of the separate rights of individuals from the
blended rights of the community.
1. Legal possession became a common practice under a datu
who would assign rights to a member of his clan.
2. Concept of private ownership began to replace communal
rights.
iv. Ownership is understood as the right to use the land. If one ceased
to work, he would lose his claim to ownership.
1. This is because people only consider themselves as secondary
owners, as the true ownership belongs to the spirits guarding
the land Filipinos worshipped a variety of spirits, deities and
anitos called diwatas. All social and cultural activities were
also religious activities.
2. Worship of spirits from Hindu religion, as Visayas and Sulu
were once part of the Madjapahit empire from 1100-1300.
3. Spirits and gods were thought to be generally benevolent, but
can also cause calamities and misfortune if not given proper
respect. This worshipful attitude towards the anitos provided
the necessary sanction to customary law, which led the
members of the tribe to recognize claims of ownership for
fear of displeasing the gods.
v. Example is the Banaue Rice Terraces:
1. Irrigated fields on the rice terraces are accepted as private
property (it should be noted that this land belongs to the
family as a unit and not to an individual). Lands cannot be sold
without the full approval of the family, and only in dire
 necessity. Lands and other articles of value are generally
handed down to the next generation (Barton).
2. Ifugaos claim to the rice terraces is human labor.
3. The claim is made acceptable by the claimants invocation of
religion: it is only in the rice terraces that they produce
swidden rice, which is essential in religious ceremonies.
vi. Among the Tagalogs, while arable land is controlled by the datu,
hillside swiddens can be worked by a resident.
1. Upon the death of the possessor or the tiller of the land, it
was natural for children to take over the use or cultivation of
the property from which comes the notion of hereditary
succession or inheritance of property.
2. While the land is thought to be communal property and not
transferable by inheritance, the right to cultivate could be
passed on to the other members of the family. Personal
property, on the other hand, can be passed down to family
members.
vii. Our pre-hispanic ancestors also laid claim to personal property on the
basis of discovery.
1. Ex. Putting a twig under a beehive to signify someones claim
to it.
viii. When primitive man came out of the hunting stage, he became closer
to nature. From environmental customs (worshipping of the sun and
other stars, offering of food to crocodiles, etc.) gave rise to
environmental law.
VI. Social Status and Organization
a. The law began to change rapidly with the settling of the nomadic tribe to
become agriculturists and pastoralists.
b. With the notion of private property there developed concepts of power and
social status, personal relation, worship of gods and tribal warfare.
i. Women were relegated to the category of property with the division
of labor in agriculture.
c. Men formed larger communities, because agriculture can produce more food
to support a larger population.
i. Family -> clan -> barangay -> chiefdom (loose confederation of datus)
-> tribe -> community
ii. With the formation of these larger units came the necessity for a
government
d. Barangay was composed of 30-100 families bound by kinship, governed by a
datu who functions as a leader, legislator, arbitrator.
e. Chiefdoms are loose confederations of datus bound by loose ties of personal
allegiance to a senior among them (pangulo, kapunoan, makaporos nga
pangulo).
 i. Power of the datu depended on his wealth, the number of his
subjects and slaves, his reputation for physical prowess and
leadership
ii. Datu assisted by a chief minister, a steward, tribute collectors, a
sheriff, a town crier, and a retinue of slaves
iii. The datu received tributes from his subjects, and his vassals rendered
services.
iv. Datu decreed laws for the community, mediated and arbitrated
disputes, and assigned fishing and hunting rights to his vassals.
v. The datu is the equivalent of the lord of the manor in feudal Europe.
vi. The datu creates the law for the barangay which encrusted custom
into tradition and tradition into law.
f. The barangay government refined the legal concept of obligation (utang).
When vassals need money or provisions, they contract a debt at a high rate
of interest. Another form was utang na loob or debt of gratitude.
VII. Personal and Family Law
a. Before colonization, the family was the basic unit.
i. Father and mother addressed with respect and affection.
b. Marriage was by mutual consent, although these contracts between families
rather than individuals.
i. Contracts made when the bride or groom are still children, or before
they are born.
ii. Bugay bride price paid by the grooms parents to seal the bargain
(among Visayans)
iii. Polygamy was tolerated; men can take 2 or 3 wives if they could
afford it.
iv. Divorce or separation was liberal: for incompatibility, neglect, or
misconduct.
c. All legitimate children inherited in equal shares from the property of the
parents.
i. If the father has two or more wives, the child inherited what
belonged to the mother.
d. Succession hewed closely to the bloodline.
i. Illegitimate children only inherited at the pleasure of the legal heirs.
VIII. Foreign Influence in the Formation of Laws in the Days of the Barangay.
a. Two important foreign influences: China and India
i. China: gave up the Stone Age custom of capturing women for their
mates and adopted the custom of arranging marriage by middlemen
or by parents
1. In the southern part of the country, people got to know the
concept of an implied contract because a marriage carried
with it two implied conditions:
a. Groom to render service to the girls family
b. Payment of a dowry
 2. Ancient Filipinos traded with neighboring countries; with the
Chinese, Javanese, other Malays in the south.
3. Concepts of obligations and contracts and other advanced
forms were known and practiced by our forefathers.
4. Commercial credit: barter with the Chinese (some products
took long to gather)
a. Sanglay: comes from the Chinese words chang and
lai meaning to regularly come; itinerants could be
trusted to keep commercial contracts from one trading
season to the next.
5. Concepts of sales, credit, weights and measurements are
known
a. Laguna copperplate: quitclaim of a datu
IX. INDIGENES' CONCEPT OF LAW OF NATURE
a. Ancient Visayans considered law as part of their customs and traditions, at
which these customs and traditions were considered reflections of the
natural order of things - "Kabtangan" means customs - "Kahintang" means
nature or condition - Both "Kabtangan" and "Kahintang" were derived from
"Butang" which means to put something in its place
b. Social Classes stratified according to status and was part of the natural order
of things
c. Custom preceded law, as examples: - "Alagag" means the natural awe felt by
younger people in the presence of seniors - "Hilas" means reluctance to
contradict parents or superiors - "Naga kahilas" means that an ancestor spirit
is keeping a disrespectful child awake with a guilty conscience >The customs
are distinguished from positive law like: - "Batas" means decree regulating
commerce - " Batas- batas" means tariffs
X. PENAL LAW AND PROCEDURE
a. >Fernandez listed the principal features of penal laws:
i. principal prohibitions were concerned with the values of personal
security and property
ii. wide distinctions were observed in the imposition of penalty based on
the rank of the wrongdoerand the rank of the victim
iii. the sanctions were in the form of fines
iv. in crimes subject to capital punishment, the ancient procedure of self-
help was resorted to which resulted in vengeance
b. Procedure for determination of guilt:
i. trial by ordeal - resorted to only in contested criminal cases i.e.
putting suspects in deepest part of river and those that come out first
was considered the culprit
ii. public trial, or
 iii. trial by combat
XI. ADAT OF THE LUMADS
a. Adat is the unwritten law on proper conduct, right action and procedure
i. "what ought to be the law in a given case?"
ii. classification of right conduct is not rational but metaphorical
iii. its contents are formulated in sayings, proverbs and poems
XII. CUSTOM LAW OF THE HISPANIZED FILIPINOS
a. > Pattern of Penetration of Western Law into custom law differs from one
place to another according to the degree of urbanization or the material
culture of the area
i. - due to diverse cultural traditions of Filipinos
b. >Ranks of offenses depend on their value system, i.e. on the importance of
defending and upholding one's honor
c. > In measuring amount of fines and damages, it depends on the values held
by the members of the community like social status, land, ownership,
religious affiliation, and nature of injury of the aggrieved party
i. - example: loss of life vs. loss of virginity
ii. - loss of life is measurable on basis of medical expenses and loss of
earnings (involves physical injury)
iii. - loss of virginity, and even adultery, cannot be compensated
(involves loss of honor)