Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Grand Manner?
DEAN PACIFICO A. AGABIN*
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where he swept the top prizes for debating, oratory, and military
science.17 This bolsters the point of Brillantes that for one skilled
in memorization, in learning by rote since the grades, the 'case
method' in the U.P. College of Law, and in all Philippine law
schools, was the logical, even quite welcome climax to a process of
education....18 But Marcos was not a mere memorizer of codes
and analyzer of cases. He was acute enough to revolt against
prevailing ideas of constitutionalism and morality, even as he
cloaked obsession with power with the mantle of reforming
society. He foisted the banner of New Society on a bewildered
citizenry.
The prescience of Brillantes is revealed in the last
paragraph of the article where he asks questions (and this was in
1968): How will President Marcos perform during his second
term? Will he remain the politician reluctant to offend the
oligarchy, the reactionary elite? Is the thrust of his education now
towards a new Enlightenment? Released from partisan pressures
and commitments, will he not be in a position to serve the nation
truly and sincerely and with the utmost devotion, an independent
Filipino President, a strong President at last of and for the
people?19
The answer to these questions now lies in history. But it is
clear that Marcos did not look at the law as a bad man who cared
only for the consequences of its violation. Nor was he seduced by
the inductive logic behind the case method to overlook the
universal absolutes and principles: he was too clever to be
seduced by simple logic. The fact is that Marcos was a keen
student of history, and he did not care so much about the
Constitution as a document as he knew that it was an imposition
by a colonial power. He was also a keen student of politics, and
he knew that the Constitution could be used to perpetuate him in
Karnow, supra note 8, at 367.
Brillantes, supra note 14.
19 Id.
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good stead, for they give us a good grasp of reality. It is only the
methodology of social science which can validate our social and
political assumptions. If utilized properly, the methodology cuts
through the fig leaf of legal fictions to reveal the revolting realities
in our country today. It is through empirical research that we
pierce the veil of traditional legal rules to see if the
implementation of laws leads to substantial justice, or to injustice.
It is the only social science expertise which can strip our
jurisprudence of its cherished myths adopted from foreign sources
and be brought down to earth in touch with the mores of the
people.
Once we know how laws stand in the way of social reform,
or how far it has lagged behind economic and political
developments, we can propose adjustments to effect social
change. If we see that people empowerment is just an empty
shibboleth, we can propose legal reform aimed at greater
distribution of political power. If we see the effectiveness of
groups against the warlords and vested interests, then knowledge
of the law can be harnessed by non-governmental groups to
access governmental power or to influence the private business
sector. If we see that our form of democracy is backsliding into an
oligarchy, we can take steps to counter this retrograde movement
on the slippery slope.
This approach to the law views it as a multi-disciplinary
phenomenonhistorical, social, economic, political, religious,
psychological, and anthropological. This will not, of course,
merge the study of law with that of the social sciences, for law
does not have that precision of methodology that characterizes the
other social sciences. But it will broaden the study of law so that it
will not be presented as an independent branch of study. Law
will cease to exist in a vacuum; it will be studied with the best
insights that the related behavioral sciences can offer. I believe
that this should form the basic strand of teaching law in the grand
manner, as Holmes puts it.
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Second, the law school must expand beyond mere teaching and
research and go into outreach and extension services. Its faculty
must be endowed with the necessary empirical outlook and
experience which they will transmit to their students. In the
College, the younger members of the faculty have taken to the
field by means of research, advocacy, barangay justice teach-ins,
and organizing.
Whereas the social sciences are concerned with the
behavior of individuals and groups in society, law is concerned
with the control and regulation of human conduct and
promulgation of rules to guide behavior in socially beneficial
ways. The approach of the social sciences is thus different from
that of law.
For example, the clinical method used in the Legal Aid
Program or even the case method of law teaching focuses on the
particulars of a case at hand. On the other hand, the social
sciences focus on the statistics of a class of cases which are in some
important ways similar to a particular case at hand. The law
teacher looks at the trees; the social scientist looks at the forest. It
is easy to guess who will mistake the trees for the forests. This is
probably what Holmes meant by mastery of statistics.
The most popular example of the use of social science data
is the case of Brown v. Board of Education.28 The issue was complex:
Does segregation of public school children solely on the basis of
race deprive them of equal educational opportunities? The U.S.
Supreme Court resorted to psychological data and found that (1)
there are psychological harms to black schoolchildren in a
segregated environment; (2) there are certain intangible factors
which produce superior learning environment in integrated
schools, and (3) public schools play a critical role in contemporary
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society.29
It is always better to test the underlying assumptions of the
laws with the standards of the empirical sciences. As two
psychologists have noted:
Traditionally, the behavioral technology of the law
is laid down in legislation in civil law countries
and
in
precedents
in
common
law
countriesunderlying these rules are assumptions
of how individuals behave and how their behavior
can be regulated. Since these assumptions are
about the behavior of individuals, they are
available
for
empirical
research
and
testingaltogether, however, only scattered and
isolated assumptions of the law are tested, usually
aiming at direct application in the courtroom.30
EMPIRICISM AND SOCIAL VALUES IN LAW
Teaching in the grand manner, of course, does not mean
completely teaching law using social science methods. In the first
place, it cannot be done for two reasons: one, the style and form
of the current national bar examinations would not permit this,
such examinations being a test of the students knowledge of legal
doctrines, and two, it would be inconsistent with the nature of the
law, which cannot be studied totally free from values and morals.
Morals are the source and not necessarily the content of
law. Law is essentially normative, and a study of law delves into
policy considerations behind the law. It cannot be limited by the
S. Siegel, Race, Education, and the Equal Protection Clause in the 1990s, 74 MARQ.
L. REV. 501 (1991).
30 LAWYERS ON PSYCHOLOGY AND PSYCHOLOGISTS ON LAW 8 (P. J. Van Koppen, et
al., eds., 1988).
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M. Galanter, Why the Haves Come Out Ahead, 9 LAW & SOCIETY REV. 95, 124-25
(1974).
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M. Minow, Breaking the Law: Lawyers and Clients in Struggles for Social Change, 52
U. PITTS. L. REV. 723, 750 (1991).
34 R. POUND, AN INTRODUCTION TO PHILOSOPHY OF LAW 29 (1959).
35 JUSTICE OLIVER WENDELL HOLMES: HIS BOOK NOTICES AND UNCOLLECTED LETTERS
AND PAPERS 187-88 (Shriver ed., 1936).
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