E2014 LegHis Reviewer3

I-E | LEGHIS | Dean Pacifico A.
Agabin
SYLLABUS FOR LEGAL HISTORY
Dean Pacific A. Agabin
2009-2010
I. The uses of history in Law

A. Chapter II, ―The Methods of History, Tradition and Sociology‖, in Carelozo, The Nature of the Judicial
Process (1923)
II. Pre-Hispanic custom law

A. Chapter 1, ―Pre-Conquest Society and Custom Law‖, in Fernandez, Custom Law in Pre-Conquest Philippines (1976)
B. Chapter 2, ―Liability‖, Fernandez, supra.
C. Chapter 4, ―Minimum Government‖, Fernandez, supra.
D. Manuel, ―The Evolution of the Concepcio of Property and Land Ownership Among the Manuvu of Central Mindanao,
65 Phil. L.J. 143
E. Chapter 8, ―Crime and Punishment‖, Fernandez, supra.
F. Chapter 9, ―Remedies and Procedure‖, Fernandez, supra.
III. Roman Law and Spanish Colonization

A. Chapter I, ―Ancient Codes‖ In Maine, Ancient Law
B. Chapter II, ―Legal Fictions‖ In Maine, supra.
C. Chapter III, Law of Nature and Equity in Maine, supra.
D. Chapter III, ―The Constitutionalism of Rome and Its Influence‖ in McIlwain,

Constitutionalism: Ancient and Modern (1997)
E. Agabin, ―The Philosophy of the Civil Code‖, 66 Phil. L.J. 1.
F. Lynch, ―Land Rights, Land Laws and Land Usurpation: The Spanish Era‖ 63 Phil. L.J.82
G. Chapter VIII. ―After the Spanish Conquest‖, In Gamboa, Introduction to Philippine Law (1969) August 15
IV. Muslim Law in Southern Philippines

A. Koesnoe, ―From Folk Law Towards Jusrists' Law‖, Vol.1, No.1, ASEAN Law and Society 36 (1986)
B. Mastura, Harmonization of Adat Law vis-a-vis western Law within a Single Polity, ―Vol.1, ASEAN Law and Society 44
(1986)
V. Common Law and Common Concepts

A. Maitland, ―Prologue to the History of English Law‖ (Reprint)
B. Jencks, ―The Development of Teutonic Law‖ (Reprint)
C. Pound, The Spirit of the Common Law (1921)

I-E | LEGHIS | Dean Pacifico A. Agabin
Ch. 1. ―The Feudal Element‖
Ch. 2. ―Puritanism and the Law‖
Ch. 3, ―The Courts and the Crown‖

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Ch. 6, ―The Philosophy of Law in the 19 Century‖
Ch 8, ―Legal Reason‖
VI. Modern Filipino thought of the law

A. Majul, The political and Constitutional Ideas of the Philippine Revolution
Ch III, ―On the Origins, Necessity and Functions of Government
Ch IV, ―On the Obedience to Law‖
Ch VIII, ―The Malolos Congress: Legislative Supremacy v. Temporary Dictatorship
VII. Manifest Destiny and hybridization of Philippine Law

A. Lynch, ―The Legal Bases of Philippine Sovereignty‖, 62 Phil. L.J. 279 (1987)
B. Ch. 6, ―The Politics of Judicial review over Executive Action‖, in Agabin, Unconstitutional Essays, p. 167 (1996)
C. Lynch, ―The Colonial Dichotomy: Attraction and Disenfranchisement:, 63 Phil. L.J. 112 (1988)
D. Case: In re Application of Mac Shoop for admission to practice of law, 41 Phil. 213
E. Fernandez, ―Sixty Years of Philippine Law‖, 35 Phil. L. J. 1389
Chapter II, “The Methods of History, Tradition and Sociology”, in Carelozo, The Nature of the Judicial Process (1923)
 The historical method, also known as the method of evolution, has an effect of making the path of logic clear.
 The directive force of a particular event‘s precedent may be found either in the events that made it what it is, or in some
principles which enable us to say that it is what it ought to be. Development may involve either an investigation of origins or an
effort of pure reason.
 In the development of principles, however, logic may take predominance over history.
 History, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future.
 There are certain matters where there can be no progress without history. For instance, feudal tenure was not conceived by
any lawgiver; history conceived its system.
 Holmes: ―If we consider the law of contract, we find it full of history. The distinctions between debt, covenant and assumpsit
are merely historical. The classification of certain obligations to pay money, imposed by the law irrespective of any bargain as
quasi-contracts, is merely historical. The doctrine of consideration is merely historical. The effect given to a seal is explained
by history alone.‖
 If history and philosophy do not serve to fix the direction of a principle, custom may step in. In these days, at all events, we
look to custom, not so much for the creation of new rules, but for the tests and standards that are to determine how
established rules shall be applied.
 It is not so much in the making of new rules as in the application of old ones that the creative energy of custom most often
manifests itself today. General standards of right and duty are established. Custom must determine whether there has been
adherence or departure.
 A slight extension of custom identifies it with customary morality, the prevailing standard of right conduct, the mores of the
time. This is the point of contact between the method of tradition and the method of sociology. Each method maintains the
interaction between conduct and order, between life and law. Law preserves the moulds, which have taken form and shape
from life.
 When social needs demand one settlement rather that another, there are times when we must bend symmetry, ignore history
and sacrifice custom in the pursuit of larger ends.
 Logic and history and custom have their place. We will shape the law to conform with them when we may; but only within
bounds. The end which law serves, the welfare of society, will dominate them all.
 Sir James Park: ―Our common law system consists in applying to new combinations of circumstances those rules of law which
we derive from legal principles and judicial precedents, and for the sake of attaining uniformity, consistency and certainty, we
must apply those rules when they are not plainly unreasonable and inconvenient to all cases which arise.‖
 Today, every department of law, the social value of a rule has become a test of growing power and importance. In some, the
method of sociology works in harmony with the methods of philosophy or of evolution or of tradition. Those are fields where
logic, coherence and consistency have to be sought as ends.
 For instance, ―liberty‖ is not defined. Its limits are not mapped or charted. Liberty was conceived of at first, as something static
and absolute. But there are meanings approved of the by the people, determined by those who are most affected by the
word‘s presence.
 Property, as well, though immune under the constitution, is subject to regulation.
 Therefore, courts are free in marking the limits of the individual‘s immunities to shape their judgments in accordance with
reason and justice. Their standards, however, must be objective ones.
 There are some rules of private law which have been shaped in their creation by public policy, and this, not merely silently or
in conjunction with other forces, but avowedly, and almost, if not quite, exclusively. These, public policy, as determined by new
conditions, are competent to change.
Chapter 1, “Pre-Conquest Society and Custom Law”, in Fernandez, Custom Law in Pre-Conquest Philippines (1976)
 Custom Law – body of customs and usages dealing with liability in pre-conquest society
o Liability – accountability, responsibility
o For our ancestors, liability is based on fault, with or without intent.
o Custom law consisted of unwritten rules preserved in songs and chants and in the memory of elder persons in the
community who were consulted in connection with disputes requiring adjudication according to their ugali
o There was an assumption that laws were complete and needed no addition or modification
o Datus – executors of the law
 Regional Diversity of Custom Law

o Not one system alone flourished, but many
o Ethnic groups had differences in their language, ways of life
 Regional political communities

o Barangays – minuscule units
o There was no single political organization which administered the system of law on a regional basis
o Government was existing but it was diffused, not centralized
 Diversity within the regional community

o Barangays applied and interpreted the received ugali in divergent ways
o Datu – power was unchallenged and he undertook the functions of the judge, exercising criminal as well as civil
jurisdiction
o Murder and theft were considered public offenses
 General aspects of custom law

o Each region was a political community with a separate system of custom law
o Government was minimal
o There was no specialized machinery of justice
o Absence of mass of legal concepts and standards
 Secular Orientation
o Custom law was distinctly secular
o There was no organized religion in the sense of a church or sect with a particular creed
o Religion was a concern of the family, not the community
 Functions of Custom Law

o It is a primitive system, rudimentary in its precepts and archaic in its procedures
o Task: regulation of the use of force in the resolution of conflicts
 Preservation of the Peace

o Central function of the custom law was to preserve the peace
 Order of Power
o Datu – chief of the barangay
o Distinct roles
 Judge – he undertook the redress of wrongs and the vindication of community interest by proceedings
against malefactors and violators of peace
 Leader – made crucial decisions of war and peace
 Legislator – he legislated matters not dealt with bu custom law
 Order of Labor
o Obligation of Service: two types
 Obligation of the households in the barangay to render services to the chief
 Servitude – imposed for inability to pay a fine or a debt
 Status in Custom Law

o Status was largely dependent on wealth and birth
 Principalia – had the most wealth in the community
 Common households – modest resources
 Dependents or alipin – had little or none
o Illegitimates had no rights
o Women enjoyed substantial equality with their menfolk – they ad the right to own property
Chapter 4, “Minimum Government”, Fernandez, supra.
I. Barangay as Political Community
- barangay consisted of the more or less autonomous households, usually bound by ties of kinship and dominated by the
household of the datu
- territory generally extended to all the lands and water areas under the control of the households belonging to it, which were
regarded as communal and available for use by all the households in the barangays
- Political character derives from the recognition of the authority of the datu
II. Minimal Government
- Government within the barangay was minimal because of:
o household organization was virtually self-sufficient and autonomous

o scarcity of resources
o barangay community did develop specialized machineries of government
- 2 functions generally discharged to the barangay a political organization

o Maintain its existence by resisting and repelling invasion by outside enemies
o Preservation of peace and order within its territory through methods of mediation and conciliation of disputes
o (in better integrated communities) Prevention or redress of wrongs though public authority of the datu
III. No Monopoly of Force
* Efficacy of government in modern states rests on the monopoly of force. Only the government, though duly authorized
agents, can use force to compel obedience or exact compliance.
- Barangay communities cannot establish monopoly because of its primitive organization and resources
- No central authority in the barangay is strong enough to disarm every resident and repel by itself attacks from the outside.
- During emergencies that threatens the community as a whole,
IV. Principle of Self-Help
- In the barangays, it was the custom for each freeman to carry weapons and to use of them for his own protection, or
advancement of his own interests. Under conditions of pre-conquest society, physical prowess and valor in the use of arms
was essential to survival.
- Skill and valor in the use of arms was highly prized and acts of bravery much admired. It was the custom to sing praises of
warriors who died in battle. Such attitude reflect:
o a condition of more or less frequent strife

o essentiality of military preparedness
o realization on the part of all members of the community that each household was entitled to resist or avenge any
provocation or invasion of its rights and that it had the capacity and willingness to do battle; retaliation was an
effective deterrent to unlawful aggression
V. System of Obligation in Barangay
- Barangay consisted of more or less autonomous households, usually bound by the ties of kinship
- Power structure in the shape of a pyramid
o – ―status of subordination of one household to another carried, by well-established custom, reciprocal rights and
duties‖
o Dominant household provides protection, security, and assistance to the households attached to it. Subordinate
household render customary services ti tge dominant household when needed.
 (apex) household of the datu -

 (next to datu‘s household) petty chiefs in the barangay – acknowledged the primacy of the great chief
 freemen (timawas) – attached to the household of a chief
* in smaller barangays – only 1 chief to whom all freemen were subordinate

VI. Status of Datu
- Status of Datu is more akin to that of a chieftain rather than a king. Pre-conquest society did not achieve that degree of
centralization and institunalization of authority which is the characteristic of royalty in its myriad forms.
- Real basis of power was not the office but the person himself. Merit, not title by inheritance was the seal of every new datu‘s
claim to power. Prestige in the community gained only when by his prowess, valor, wealth or wisdom he showed himself able
to provide protection or compel obedience. Custom, it seems did not ordain permanent adherence to any particular datu.
- Authority is charismatic, not traditional
VII. Prerogatives of the Datu
- Veneration and respect

- Customary services
o Services required in the interest of the community as a whole
o Services in the interest of the datu and his household
VIII. The Datu as Captains in War
- Duty of the datu to act as ―barangay‖ captain in war, to plan, direct and lead course of battle
- Can exercise emergency powers over manpower and resources of the barangays
IX. The Datu as Judge, Arbitrator and Mediator
- Adjudicate disputes among households, endeavored to have the parties agree on a settlement
- Generally, took cognizance of such disputes on petition of the aggrieved party for protection from violence, for redress of an
injury, enforcement of a claim such as unpaid debt
X. Datu as Legislator
- Rapid social and economic changes brought by religion (like the penetration of Islam in the South and middle portions of
Luzon, demand for more and more imports from China and other countries of the East, the production of saleable
commodities, including gold and other precious metals), the system of custom laws embodied in the ugali was strained. In
places where these changes were most felt, the existing rules had to undergo corresponding changes.
- Communities where the power of the datu was undisputed, he could legislate freely. In communities where the authority of the
datu was not fully consolidated, resort was probably made to accommodation, through interpretation of custom law.
Manuel, “The Evolution of the Concepcio of Property and Land Ownership Among the Manuvu of Central Mindanao, 65 Phil.
L.J. 143
I. INTRODUCTION
The Manuvu’
1. Geographical, demographic, etc:
Dallag plateau
– situated on the divide splitting Davao City and Cotabato

– it is at the east central part of the territory occupied by the Manuvu‘ people (who in pre-WWII years were in possession of this
vast territory occupying southeaster Bukidnon and Northeaster Cotabato and wester Davao)
* The Manuvu‘ habitat in 1956 was mainly forested, grassland, and clearings or two-thirds virgin forest
* The Manuvu‘ main staples were corn and sweet potato. Carabaos and horses were used in their trading activities, in the raising of the
bridewealth and in the payment of damages in the settlement of wrongs and delicts. The Manuvus‘ were using barkcloth from time
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immemorial until the middle of the 19 century when weaving was introduced, and so also blacksmithing
* They were slash-and-burn agriculturists mainly (in 1956) and they still practiced food gathering activities which may be considered
supplementary ways to the production of the staples they relished.
* They had tree-houses or built a kuta under the house in times of feuding or little wars.
2. Politics and governance
Time Dispute settlement methods Governance

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Before the 20 century Settle disputes mainly by retaliation; eye for Governed by old men, later developing
an eye, tooth for a tooth leaders or bayanis who became
recognized in their respective areas of
influence
After trade goods were Law of damages; though retaliation was Datus; addressed either by their personal
acquired practiced up to recent times names or by prefixing the term datu before
their names
* It became characteristic of the village government to develop a multi-datu system, each village having two or three or more datus
depending on the size of the population
* Traders became effective datus because of the accumulation of wealth as their influence facilitated the settlement of disputes
* The greatp art of Manuvu‘ people became consolidated into a tribal organization after the recent war when Datu Duyan succeeded in
gaining recognition through his knowledge and experience gained during the prewar and occupation years (WWII), his benevolent
policies, and connections with some governmental officials.
II. ORIGIN OF THE CONCEPT OF PROPERTY AND ITS DEVELOPMENT
* In Manuvu‘ language:
 kaddi means my, mine

 kekaw is your, yours
 kandan is their, theirs
* Since language goes to the very origin of culture, this linguistic evidence is of primal import in tracing the origin of the concept of
property (material or non material) as something that can be possessed.
* For example, when someone sees a nest (with birdies and eggs), his first move is to show to the outside world the fact of his
discovery by:
a. cleaning the trees‘ surrounding area or

b. cutting a branch and stick it to the ground with the end pointing to the nest (called tuwos in Manuvu‘ language which indiciate
discovery and the prior claim to the ownership of the eggs or birdies.
c. During his absence, any person who ignores the sign below the tree and brings down the birdies or eggs, is by CUSTOM
LAW, guilty of theft.
* From the time the tree is marked and the eggs or birdies are taken down, THERE IS NO ACTUAL POSSESSION, ONLY POTENTIAL
POSSESSION; but even so, ownership attaches right away, for anyone other than the discoverer to take away the eggs or birdies is a
thing and the wrong down has a sanction, the PAYMENT OF DAMAGES.
Case 1 – Panakaw (theft) is committed when a marked beehive is hauled down; inferentially, ownership attaches to beehive the
moment it is marked by the discoverer; and damages are demandable against person who haul it down.
A person caught another in the act of taking his ―potential property‖ can kill the latter.
The right of ownership to the beehive lapses after the day following its discovery; this lapse of the right gives other the opportunity to
haul down the beehive. It is the hauling down of the hive by its discoverer that perfects his right of ownership; in the meantime that two
days have not lapsed he has an inchoate right to the behehive.
Case 2 – Taking the fish from the trap and removing the latter to another place is theft; two fishermen settle the case between
themselves without bloodshed; a gong is offered by the thief and this was acceptable reparation.
* In Manuvu Law, anything that a man makes belongs to him The by-product of any artefact belongs to the owner of the latter.
Case 3 – Hunting dog killed by a trap: owner demands compensation, which is given right away plus the performance of a ritual so that
hunter would be favored by the deity of wild animals once more; greater panavuk (damages) demandable if the presence of traps were
not announced; religion and law.
* The articles they made for defense or offense such as bows and arrows, spears, shields, blowguns, or sharpened bamboo sticks also
become property.
* The charms and bandoliers they perfected were a special kind of property. Some of these charmstones were used by warriors and
hence they were regarded as priceless possessions.
III. LAND OWNERSHIP AMONG THE MANUVU’
* In a state of nomadism, land ownership can develop only in the sense that agricultural peoples have concepts about land. They don
not claim ownership over particular areas they have covered from year to year or from season to another.
* Some element of ownership is obviously lacking, or wanting – possession. In other words, the control over the articles must be
complete, that is, exclusive of any body else‘s control.
* In nomadism of their ancestors, they moved about in circles occupying one place at a time then giving back to the old places to clear
the area once more and plant. When the yield became minimal or poor, they moved to another old place again. No other groups was
supposed to occupy the Manuvu old spots and places. Upon their return, should there be such other band or group, this was
considered an intrusion.
* Because of feuding proclivities of the Manuvu‘ in their law system, there developed among them warriors, some with distinction to
become bahani (a cognrate of the Tagalog term bayani).
* Husbands came from the outside communities or ethnic groups; they were total strangers to the band or village. This leads to adding
male population to the band.
* The apus or old men were the ones who assigned plots or fields to till or area to open while in residence which may be for the duration
of the lives of their parents-in-law. So, as the settlements grew into villages, this was the pattern of land assignment for the reason that
the settlement or village became owned by the band or inhabitants.
* As villagers grew in population, inter-village relationship was unavoidable. According to datus and old inhabitants, inter-village law did
not allow the trespass over the village territory. For example:
a. If a citizen from another village ever attempted to cut rattan from the side of the other village, his bolo could be confiscated
by any villager of the latter
b. A hunter who chased a deer across the stream-boundary incurred trespass, but if he had already disabled the animal
which crossed the stream and this animal was speared to death by another man in the other side, the carcass was divided
equally between the two hunters.
nd
* As the old men came to be called datus in the 2 half of the century, and as the villages grew in population, the village set-up
developed an authority system that was characterized by a number of datus exercising authority over the village – this is called multi-
datu system. It is now the datus who allotted lands to foreigners, those who came from the other villages or ethnic groups.
* Another way of acquiring exclusive ownership of a small portion of land by public declaration – la:w. There were villages who made
canals and built dams across the shallower streams todiver the water into a side hole to convert the same into some kind of fishpond.
Such artificial body of water became exclusive to the builder to use, and this was done by open public declaration.
Case 4 – Datu takes a band of bananas from an old field or kamot belonging to another villager during famine; in the custom law this
act is theft, but apparently owner didn‘t demand damages; instead he gave ―tapuk ta langossa‖ because the theif‘s calf was pierced by
a trap missile and blood had been spilled.
IV. CLASSIFICATION OF MANUVU’ PROPERTY AND OBSERVATIONS
The following are considered property:
1. Everything that a Manuvu gathers or catches from the ground, grass, plants, trees, waters and so on is property
2. Everything that he catches with devices such as traps, hunting gears such as by using bow and arrow, spear, blowgun, etc. is
property
3. Anything that he makes or manufactures
4. Anything that he plants and produces is his own or belongs to his family
5. Animal that he raises, though this is limited to the dog, cat, and chicken. The puppies and kittens soon get portioned among
relatives or friends.
6. Portions of a stream may be owned by la:w and this property can be passed on to heirs; exclusive hunting rights may be so
declared and such declaration is recognized by other villages
7. Land can also be owned by occupancy in pioneer areas or by assignment by the old men of the band or village, and by datus
later.
8. Anything that is received as give is property:
nd
a. A husband wishing to take a 2 wife is likely to court his first wife with gifts to obtain her permission.
b. When people want favors, they give gifts.
c. Irritation, injured feelings, are placated with gifts.
9. Anything acquired by exchange or barter is property.
10. Articles and animals acquired by trading were valuable property.
11. Seizure of property is recognized in the custom law
12. More serious is dakop (the equivalent to Tagalog dakip), where for indebtedness a person in the household may be seized for
failure to live up to a contract. Sometimes the person so seized is made to work; but the intention is to hasten payment.
13. Person captured in ―little wars‖ or seized during raids became property – the practiced slavery:
a. Slaves were made to work
b. The good ones were made husbands and wives
c. The ugly ones were sacrificed in their ceremonies
14. Anything that a person acquires for services done is property
15. Damages are sources of wealth.
16. Some properties acquired in a special way may not be sold or used in certain ways.
17. properties acquired by inheritance involve all kinds of properties.
* The Manuvu concept of property came from the general belief that all things came from Manama, the Manuvu‘ supreme god. While
the fish and wild animals remain in their habitat, they belong to god and his caretakers (diwatas); but the moment they are caught, they
belong to man.
* Terms:
a. impon – articles that are worn on the body

b. butang – household articles
c. tamuk – includes abaca cloth, jewelry such as the kamai‘, gongs animals such as the horse and carabao, and others
* In the family there is separation of property between husband and wife. At marriage the bridewealth was distributed among her
parents and closer relatives; and whatever she acquired during marriage she usually passed it on to her parents.
* The wealth, however, that the father accumulated during his life was either divided equally amongst his children and wife, or the bulk
was endowed to his first born son (this is pusaka‘).
* With land, the pervading concept is DIVINE OWNERSHIP, proceeding to KIN GROUP OWNERSHIP when bands roamed the country
side. Upon permanent settlement became the patter, CORPORATE OWNERSHIP became the rule, and from their INDIVIDUAL or
FAMILY OWNERSHIP.
Chapter 8, “Crime and Punishment”, Fernandez, supra.
- distinction was made between conduct which was harmful to the community itself, and conduct which prejudiced only the
interest of a particular person or household
Features of pre-conquest criminal laws:
1. Protection of secular values

- Religion received virtually no recognition or protection from pre-conquest criminal law.
- Principal prohibitions were concerned with the values of personal security and property.
2. Distinctions according to rank

- Considerable variation was universally practiced in the imposition of penalty, according to the rank of the wrong doer and
the rank of the victim.
- Aristocracy or the ruling class received highly favored treatment under existing law.
- Harshest penalties were imposed if the victim for were a chief. Conversely, if crime is committed by a chief, sanction
imposed was nominal if imposed at all
3. Sanctions preponderantly in the forms of pecuniary fines

- Penalty was most humane and reasonable
o Death was imposed only for universally acknowledged heinous crimes
o Penalty generally consisted of a fine graduated according to the nature of the offense, the gravity of the wrong,
and the rank of the wrong-doer as well as that of the offended party.
- Servitude was imposed in case offender was unable to pay fine
- No resort to torture, harsh labor or incarceration
- Fine was divided between two groups: the aggrieved party or his heirs, and those who undertook the capture and
punishment of the culprit
4. Ancient procedure of self help for capital punishment

- Death sentence was imposed in two ways
o Relatives of the offended party hunt down, capture and kill the culprit
o If the offender was not captured but later surrendered or captured by another party, he will be killed by other
chiefs who intervened
- A man found guilty of murder may evade death penalty if he had the means to pay a heavy fine or if he offered himself as
an alipin and the offer is accepted by the wronged party
Chapter 9, “Remedies and Procedure”, Fernandez, supra.
Development of Judicial System
 At the time of the conquest, three techniques were used to settle disputes: a) mediation and conciliation; b) arbitration; and c)
formal adjudication.
 In transactions among households, intermediaries were employed to a)prevent humiliation and loss of face consequence of
refusal in face-to-face dealings; and b)greatly enhance the chances of a successful transaction.
 These intermediaries were rewarded for successful transactions. Here we see the principle of compensation and reciprocity of
work. For dispute settlements, they become entitled to part of the recovered property.
Religion and Justice
 System of justice in pre-conquest society was deeply rooted in religion. Elements which were clearly of magico-religious
derivation had survived in the crucial aspects of the judicial process.
 Foremost was the oath. Witness testimony was vital. Through the terrors of supernatural retribution, primitive worship lent
substantial assurance of truth to declarations made in the course of litigation, civil as well as criminal.
 Another survival was the trial by ordeal. Its central assumption was that the gods had the power and willingness to intervene in
human affairs for the punishment of the wicked and the protection of the innocent and just. Most of the time accused were
found guilty because they took refusal to undergo the ordeal as an admission of guilt, and a seal of guilt if he was injured
during the ordeal.
Oaths
 Underlying all their oaths taken in connection with litigation, civil and criminal, was the supernatural belief that deities
represented by objects of common experience (sun, moon, etc.) or objects of dread (crocodiles) were enabled, by their
omniscience, to distinguish the true from the false declarations made under oath.
 The function of the oath was t reinforce belief in the declaration to which it relates by invoking some deity as guarantor of its
truth, for which service the affiant delivered or placed his body at the disposal of the deity, to be chastised in case the deity
was made party to a false declaration.
Techniques of Settlement
 In case of a great wrong, within or among barangays, common friends of the warring parties undertook to bring about
reconciliation.
 In case parties are willing to settle the dispute but could not reach an agreement, an impartial person was chosen to
adjudicate.
 Even in cases that have been formally initiated by the aggrieved party, it appears to be part of established procedure that the
chief or the judge should do his best to effect a settlement.
Power of Adjudication
 Barangays were still in varying stages of integration.

 In the barangays where integration has proceeded the farthest, the authority was consolidated in the datu, and adjudication
was his sole responsibility.
 In less integrated barangays, the chief usually shared authority with the old man of the barangay, based on their influence and
knowledge of the established ugali.
Procedure in Contested Cases
 A trial or hearing of the cause is held, consisting of testimony and declarations from both sides. The outcome of the suit was
apparently determined by the weight of evidence as measured by the number of witnesses in favor of the cause.
 Sentence was executed without delayed. In case the losing party resisted, the chief joined the winning party in enforcing the
sentence.
 The proceeds of judgment will be divided into three: a) to the judge or chief; b) the witnesses of the winning party; and c) to the
successful litigant.
Determination of Guilt by Ordeal or Magic
 First, each suspect was required to bring a bundle, whether of cloth or otherwise, in which the stolen article could be hidden.
These bundles would be co-mingled and opened. If the stolen item was in any of the bundles, it would be returned to the
owner and the proceeding would end there.
 If the item wasn‘t there, there were several trials, such as plunging suspects in a river; the first to surface is the guilty party. Or,
a stone has to be retrieved in the middle of boiling pot of water; should a suspect refuse, he was guilty. Or, suspects will be
given candles of equal length and weight, and the first whose candle burns out will be declared guilty.
Composition
 Offenders could pay established fines in gold or jewels. Should they disagree, the datu adjudicated for them.
 Even offenses subjected to vengeance had to be settled by composition. Thus, where the offender succeeding in evading
avenging relatives, and vengeance was not exacted before prescribed time elapsed, or had caused disruption in the barangay,
the relatives have the duty to accept fine in lieu of vengeance.
 In case one was sentenced with death, he could pay a fine in order to live.
Chapter I, “Ancient Codes” In Maine, Ancient Law
Stage 1: Age of Heroic Kingship
When a king decided a dispute by sentence, the judgment was assumed to be the result of direct inspiration. The Themistes, themises,
are the awards divinely dictated to the judge. Kings are spoken of as if they had a store of Themises ready to hand for use; but it
must be distinctly understood that they are not laws, but judgments (or ―dooms‖ in the case of Teutonic law). A true law enjoins in
all the citizens indifferently a number of acts similar in class or kind; and this is exactly the feature of a law which has most deeply
impressed itself on the popular mind, causing the term ―law‖ to be applied to mere uniformities, successions, and similitudes. A
command prescribes only a single act, and it is to commands, therefore, that Themistes are more akin than to laws.
Stage 2: Era of Customary Law
Heroic kingship depended partly on divinely given prerogative, and partly on the possession of super-eminent strength, courage and
wisdom. Gradually, as the impression of the monarch‘s sacredness became weakened, and feeble members occurred in the series of
hereditary kings, the royal power decayed, and at last gave way to the dominion of aristocracies.
The same is true not only for Rome but even for society in the communities of the further Asia. Although this occurred of course at
periods long anterior in point of time to these revolutions of the Italian and Hellenic worlds; but their relative place in civilization appears
to have been exceedingly similar in general character. There is some evidence that the races which were subsequently united under
the Persian monarchy, and those which peopled the peninsula of India, all had the heroic age and then their age of aristocracies.
The difference, however, is that in the East aristocracies became religious, in the West civil or political.
The connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to superhuman dictation still shows
itself here and there in the claim of a divine origin for the body of rules, but the progress of thought no longer permits the solution of
particular disputes to be explained by supposing an extra-human interposition. What the juristical oligarchy now claims is to
monopolize the knowledge of the laws, to have the exclusive possession of the principles by which quarrels are decided. We
have in fact arrived at the epoch of Customary Law.
Stage 3: Era of Codes
The Twelve Tables of Rome are the most famous specimen of the ancient codes. Laws engraven on tables and published to the
people take the place of usages deposited with the recollection of a privileged oligarchy. It must not for a moment be supposed that the
refined considerations now urged in favor of what is called codification had any part or place in the change described above. The
ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing. Though democratic sentiment
may have added to their popularity, the codes were certainly in the main a direct result of the invention of writing. Inscribed
tables were seen to be a better depository of law, and a better security for its accurate preservation, than the memory of a
number of persons however strengthened by habitual exercise.
Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which obtained them, was the
protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and
debasement of the national institutions. But unhappily there is a law of development which ever threatens to operate upon unwritten
usage. The customs are of course obeyed by the multitudes who are incapable of understanding the true ground of their
expediency, and who are therefore left inevitably to invent superstitious reasons for their permanence. A process then
commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable.
Chapter II, “Legal Fictions” In Maine, supra
Law is stable but societies are progressive. The greater or less happiness of people depends on the degree of promptitude with
which the gulf is narrowed. To address this, law is brought into harmony with society through the following instrumentalities (in
historical order, although sometimes two of them are seen operating together): legal fictions, equity, and legislation.
Fictio in old Roman law is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was
not allowed to traverse, such for example, as an averment that the plaintiff was a Roman citizen, when in truth he was a foreigner.
Legal fiction is any assumption which conceals that a rule of law has undergone alteration. Even if its letter remains unchanged,
its operation has been modified.
Examples: English case-law and Roman Responsa Prudentium as both resting on fiction. Fact is that the law in both cases has
been wholly changed but the fiction is that it remains what it always was.
Advantages: Fiction is particularly congenial to the infancy of society. It satisfied the desire for improvement but at the same time
did not offend the superstitious disrelish for change.
Disadvantages: Legal fictions are the greatest of obstacles to symmetrical classification. Problem with legal fiction is the difficulty
in knowing whether the rule which is actually operative should be classed in its true or in its apparent place.
How legal fiction worked in the English courts: In adjudicating cases, English Courts may only apply old principles. Yet the moment the
judgment had been rendered, we see that the new decision has modified the law. A clear addition has been made to the precedents.
Moreover, failing a specific rule already ascertained and fitting the case in hand, the King‘s judges must find and apply the most
reasonable rule they can. Nonetheless, many chose to believe that somewhere, in nubibus (in the clouds), there existed a complete,
coherent, symmetrical body of English law, of an amplitude sufficient to furnish principles which would apply to any conceivable
th
combination of circumstances. Perhaps there is some truth to this as 13 century judges secretly borrowed from Roman and Canon
laws.
How legal fiction worked in Roman law: Responsa Prudentium, or the answers of the learned in law, varied a good deal at different
periods of the Roman jurisprudence. Nonetheless, it was believed that all legal language adjusted itself to the assumption that the text
of the old Code remained unchanged. No one openly admitted that any interpretation of it, however eminent the interpreter, was safe
from revision on appeal to the venerable texts.
Chapter III, Law of Nature and Equity in Maine, supra.
The theory of a set legal principles entitled by their intrinsic superiority to supersede the older law, very early obtained currency both in
the Roman State and in England. Such a body of principles, existing in any system, has in the foregoing chapters been denominated
Equity.
Equity in England
1
The jurisprudence of the Court of Chancery , which bears the name of Equity in England is extremely complex in its texture, and
derives its materials from several heterogenous sources. The early ecclesiastical chancellors contributed to it from the Canon law,
which heavily influenced equity. The Roman law also influenced the ruling of the Court of Chancery. The system which
obtained its ingredients from these various quarters, was greatly controlled in its growth by the necessity imposed on it of conforming
itself to the analogies of the common law but it has always answered the description of a body of comparatively novel legal principles
claiming to override the older jurisprudence of the country on the strength of an intrinsic ethical superiority.
Equity of Rome
1
The High Court of Chancery was the court that developed from the Lord Chancellor's jurisdiction. Unlike the courts of law, which
were rigidly based on formal causes of action, the Lord Chancellor had jurisdiction to determine cases, on behalf of the King,
according to equity or fairness rather than according to the strict letter of the law.
2
In the early Roman republic, the principle of the absolute exclusion of foreigners pervaded the Civil Law no less than the Constitution.
Still, neither the interest nor the security of Rome permitted the foreigner to be outlawed. Moreover, at no period of Roman history was
foreign trade entirely neglected. It was therefore probably half as a measure of police and half in furtherance of commerce that
jurisdiction was first assumed in disputes to which the parties were either foreigners or a native and a foreigner. Nonetheless, Roman
3
lawyers refused to decide the new cases by pure Roman Civil Law or Jus Civile. The expedient to which they resorted was that of
selecting the rules of law common to Rome and to the different Italian communities in which the immigrants were born. In other words,
they set themselves to form a system answering to the primitive and literal meaning of Jus Gentium, that is, Law common to all
Nations.
The circumstances of the origin of the Jus Gentium are probably sufficient safeguard against the mistake of supposing that the Roman
lawyers had any special respect for it. It was the fruit in part of their disdain for all foreign law, and in part of their disinclination to given
the foreigner the advantage of their own indigenous Jus Civile. There did come a time, however, when from an ignoble appendage of
the Jus Civile, the Jus Gentium came to be considered a great though as yet imperfectly developed model to which all law ought as far
as possible to conform. This crisis arrived when the Greek theory of Law of Nature was applied to the practical Roman administration
of the Law common to all Nations.
The Jus Naturale, or Law of Nature, is simply the Just Gentium or Law f Nations seen in the light of a peculiar theory. The difference
between them was entirely historical, and no distinction in essence could ever be established between them.
To live according to nature came to be considered as the end for which man was created, and which the best men were bound to
compass. To live according to nature was to rise above the disorderly habits and gross indulgences of the vulgar to the higher laws of
action which nothing but self-denial and self-command would enable the aspirant to observe. After Nature had become a household
word in the mouths of the Romans, the belief gradually prevailed among the Roman lawyers that the old Jus Gentium was in fact the
lost code of Nature, and that the Praetor in framing an Edictal jurisprudence on the principles of the Jus Gentium was gradually
restoring a type from which law had only departed to deteriorate. The inference from this belief was immediate that it was the Praetor‘s
duty to supersede the Civil Law as much as possible by the Edict to revive as far as might be the institutions by which Nature had
governed man in the primitive state.
What was the exact point of contact between the old Jus Gentium and the Law of Nature? The author believes that they touch and
blend through Equity. Equity in Greek is the principle of equal or proportionate distribution. It is remarkable that the equality of
laws on which the Greek democracies prided themselves had little in common with the equity of the Romans. The first was an equal
administration of civil laws among the citizens; the last implied the applicability of a law, which was not civil law, to a class which did not
necessarily consist of citizens. Equity in Latin is leveling. Perhaps this is the removal of irregularities which went on wherever the
praetorian system was applied to the cases of foreign litigants.
Aside:
Many such as Bentham criticize fictions. Nonetheless the author states that at a particular stage of social progress, fictions are
invaluable expedients for overcoming the rigidity of law, and in fact, without one of them, the Fiction of Adoption which permits the
family tie to be artificially created, it is difficult to understand how society would ever have escaped from its swaddling clothes, and
taken its first steps towards civilization.
Legal Fiction, Equity, Legislation
Equity, the next instrumentality by which the adaptation of law to social wants is carried on, is by that word any body of rules existing by
the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior
sanctity inherent in those principles.
2
The instability of society in ancient Italy, composed as it was in great measure of robber tribes, gave men considerable inducement
to locate themselves in the territory of any community strong enough to protect itself and them from external attack, even though
protection should be purchased at the cost of heavy taxation, political disfranchisement, and much social humiliation.
3
The Romans described their legal system as consisting of two ingredients. All nations who are ruled by laws and customs are
governed partly by their own particular laws, and partly by those laws which are common to all mankind. The law which a people
enacts is called the Civil Law of that people, but that which natural reason appoints for all mankind is called the Law of the Nations.
Unlike legal fiction, equity‘s interference with law is open and avowed. Equity, on the other hand, differs from legislation in that its claim
to authority is grounded not on the prerogative of any external person or body but on the special nature of its principles, to which it
alleged that all law ought to conform. Legislation may be dictated by equity, but then these enactments are indebted for their binding
force to the authority of the legislature and not to that of the principles on which the legislature acted.
Comparison of English and Roman adjudication
English –authority rested on the bench
Roman – authority rested on the bar
The decision of the Roman tribunal, though conclusive in the particular case, had no ulterior authority except such as was given by the
professional repute of the magistrate who happened to be in the office for the time. Properly speaking, there was no institution at Rome
during the republic analogous to the English Bench, the Chambers of Imperial Germany, or the Parliaments of Monarchical France.
There were magistrates indeed but the tenure of magistracies was but for a single year, so that they are much less aptly compared to a
permanent judicature.
Chapter III, “The Constitutionalism of Rome and Its Influence” in McIlwain, Constitutionalism: Ancient and Modern (1997)
Note:
The article tries to elucidate the influence of the Roman constitutionalism to the present common law system of England. Its most
important thesis though is that Roman constitutionalism proposes that power comes from the people rather than the absolute will of the
ruler, as most of the legal scholars have opined before.
All throughout the outline, please bear in mind that the article posits such resultant connection of Roman constitutionalism to English
common law.
Lex - definition
 As per Justinian‘s Institutes, quoting Ulpian, ―a command of the emperor in due form is a lex‖. Earlier writers, Gaius in particular,
that the will of the Emperor duly expressed should receive the obedience owing to a lex. Hence, the will of the Emperor is not lex in
itself, though it must given the full force of a lex (legis habet vigorem). The Emperor himself receive his imperium by virtue of a lex
(per legem)
 Lex, as Gaius says, is what the people orders and has established. Justinian‘s Institutes defined it as ―what the Roman people was
accustomed to establish when initiated by a senatorial magistrate such as a consul‖
 Nothing whatever was said concerning the authority of unwritten law or custom (as what is practiced in England) – lex stands first,
the enactment of the whole people; while the authority of every other form of Roman legislation invariably depends upon its relation
to lex.
 Decrees of the Senate were never leges, but in time came to be accepted in place of lex (legis vicem optinet). Though validity of
such were doubted, the Institutes of Justinian somewhat vaguely say, in the course of time ―it seemed just (aequum) that the
Senate should be consulted‖ in place of the populus, because the latter had become too great in number to meet for purposes of
legislation.
 The constitutional difference and the interrelation of senate and populus were roughly analogous to those existing between a
modern English ―government‖ and an English parliament.
nd
 Constitutions of the Emperor, like decrees of the Senate, has the effect of lex without be such per se. However, by the 2 century
AD, no one doubted the full legal equivalence of such to leges. However, such should not be. The people, and the people alone,
are the source of all law.
Jus publicum and jus privatum
 Public law, as per Justinian‘s Institutes, is only that part of jus ―quod ad statum rei Romanae spectat‖; private law is ―that which
pertains to the utility of individuals‖. Their essence is the same, it‘s in their incidence where the difference lies
 The sole difference between them lies in the fact that private rights affect private individuals exclusively, while all the individual
citizens alike participate in the public.
 The most effective safeguard of the rights of individual against individual was ultimately found in the guarantee of the people to
protect these rights.
 Enactment is termed ―rogation‖, because the rogation contains the exact provision which the people turn into law when they accept
it by their vote.
Strict law v. Equity
 There is probably no other social revolution in recorded history as important, so complete, so continuous over so long a period, as
this evolution traceable step by step in the sources of Roman private law.
 Strict law tends to become a fiction, equity has become the important fact.
 The most fundamental likeness of Roman and British constitutionalism is a likeness resulting from a similarity a similarity of
conditions which made English law a ―common law‖, and made Roman law the law of the Italian peninsula.
 The common law of England is an English jus gentium compounded of many pieces of local custom. In like fashion the jus gentium
of Rome consisted of the legal principles ―common‖ to the Italian states which Rome‘s expansion merged in the Roman judicial
system.
th th
 The legal changes in the 12 and 13 century England and in the later centuries of Roman Republic came to be the work of jurist
rather than of legislators. Both laws hence became ―judge-made‖ laws. One of the most marked characteristics of judge-made laws
was the great abundance of legal fictions since as magistrates cannot change the law, they rather stretched it over to new
circumstances.
 In still earlier periods, when legislative action was infrequent or even unthought of, these judicial fictions were the usual means by
which judges tried to keep the law abreast of the times.
 Convention, like fiction, played a large part in the development of Roman constitutionalism.
Conclusions
1. The true essence of Roman constitutionalism does not lie in those late statements of absolutism. It lies in the older, deeper
principle that the populus, and none but the whole populus, can be the ultimate source of legal authority.
2. Before the Italian Renaissance, at least, the influence of Roman political institution and ideas upon those of the developing
states of western Europe was exercised through the legal compilations of Justinian more than through any other medium,
even such a one as the history or general literature of Rome.
3. The really decisive influence of Rome on later European politics came, not after the Italian Renaissance in the tendency
toward absolutism, but during the middle ages in the reinforcement of constitutionalism.
Law v. Jurisprudence
 Law is the material of jurisprudence, jurisprudence the rationalization of law.
 Christopher Saint-German divided the law of England into ―the law of reason primary and the law of reason secondary‖. It came
from St. Thomas‘ distinction between the ultimate principles of the universal and unchangeable law of nature, on the one hand, and
the specific deductions that men may make from these general principles.
 Additional conclusions:
a. To reach a true conception of the spirit of our constitutional antecedents in the middle ages, the jurisprudence is at least equal
in importance to the mere subject matter of law.
b. Jurisprudence as distinct from that law, is pretty largely Roman in its derivation, though considered in the middle ages
probably not so much specifically Roman as ―common to all mankind.‖
c. Central political principle of this Roman jurisprudence is not, as has to often been assumed, the absolutism of a prince, but the
doctrine that the people is the ultimate source of all legitimate political authority in a state.
 In the king‘s court each decision, it says, is governed by the laws of the realm (legibus regni) and by customs
(consuetudinibus) drawn from reason and long observed
 Immemorial custom is observed as lex, and not without reason; and this is the law which is said to be established
by usage.
Agabin, “The Philosophy of the Civil Code”, 66 Phil. L.J. 1.
I. Roman elements of the Civil Code
A. Introduction
We can point at the philosophy of law by:
1. Tracing the origin of the law to its sources in human nature
2. Connecting the law with the society that evolved it and the circumstances of the time in which it originated
3. Relating the importance of the law under the influence of economic, social and other conditions
4. Pointing out the basic elements of the law
5. Tracing the growth of the law and or distinguishing law from ethics
B. Roman Law Antecedents
• Laws of Spain based on the Roman law but to study Roman law we‘ll find out that it is greatly influenced by the Greek philosophy
• Roman state was composed of hardy tillers of soil. These were peasants and they fashioned their laws according to their lifestyle
• Roman law was but a combination of tribal customs, royal edicts and priestly commands.
• Roman law was lex and jus - command and justice – of man and of the gods
• Theory of injury and liability-injuring one‘s neighbor might make the gods angry and might hit them back and could cause peril to the
community
• Roman law grounded on religion. When law is based mainly on religious rituals, the philosophy of law stagnates.
• We can only know the philosophy of law when it becomes distinguishable from religion, morals, and customs.
• Between salvation and damnation, the Roman tribesmen did not question the rules
• Schulz – Jurists give the impression of a mathematical treatise of rather of a treatise on a law of Nature, however not so generally
applicable as was claimed for the Stoic law of Nature, but one within the framework of Roman legislation and retaining certain
traditional principles and axioms; in short a Roman law of Nature.
• Pound – Roman law-philosophically discovered system of precepts-express nature of things which men ought to conform
• Philosophy of law was not a strong point with the Romans. Roman model for the philosophy maybe represented by:
a. the establishment of bonus paterfamilias as the standard relation for development of private law during the first period
b. Jus Aequum -corresponds to the principle of equity, during the second period
Distinguishing marks of the Roman law
• One distinguishing mark of the Roman law during this period lies in the ABSENCE OF AN ETHICAL ELEMENT. Here was law before
it was married to ethics.
• Paterfamilias (represented absolutism) – patriarch is the absolute monarch in the family over which he had complete control
• SIMPLICITY - In private law, the Romans recognized only 2 forms of human associations
a. Societas
b. Corporation
• There was only one type of communio, one form of property as no distinction was made between real and personal property, one form
of security whether possessory or not.
• In family law- property law of husband and wife are of two kinds:
a. Manus marriage- where the wife had no property
b. Free marriage- Separation of property

• Pound – when the law replaced religion as the main regulating agency, the old religiously-sanctioned promise became a formal legal
contract which created a legal duty enforced by the government. Legal symbols replaced the symbols of magic, contracts became
source of obligation. It is the legal form that formed the causa for enforcing the agreement in contracts.
• One common thread of Roman private law, it is the philosophy of individualism.
• ROMAN LAWS OF OWNERSHIP WERE EXTREMELY INDIVIDUALISTIC (SAME WITH SUCCESSION AND OBLIGATION)
• Two principles of Roman law operated to moderate the excessive individualism:
a. Aequitas – practical concession as the directive principle of a progressive legal development which finds itself in opposition to the
strict civil law (departure from the rigidity of the Roman law)
b. Humanitas – contemplated moral, intellectual, education, kindness, goodness, sympathy, and consideration for others; it also
softened the relationship between parent and child
• Corpus Juris Civilis – Code of Justinian enacted Orthodox Christianity into law
• After declaration the Trinity of God and ordering all Christians to submit to the religious leadership of the Roman Church, the Code
embodies the DOCTRINE OF THE CHURCH:
1. legalization of slavery and serfdom
2. the oppression and persecution of heretics and dissenters
3. the preservation of the distinction between classes
4. capital punishment for sexual irregularitites like homosexuality, fornication, adultery, and rape
5. the prohibition against divorce6.inheritance of property through the cognate line in descending order
7. inalienability of the property of the Church
8. attachment of freemen and serfs to the feudal estate
9 .imprisonment for debt
• Code of Justinian differs from earlier codes by its rigid orthodox, its deeper conservatism, and its vengeful severity
II. Spanish Precedents
• 5th century- Visigoths over-ran Spain and they ruled the country until the coming of the Moors (711AD)
• Visigoths were later converted to Christianity
• While the code imposed the rules of evidence and established the principle of equality before the law, applying the law to Romans and
Visigoths alike,
a. it rejected freedom of worship for non-Christian
b. imposed Christianity on all inhabitants
c. sanctioned persection of Jews

Gothic compilations
• 2 tribal customs brought by the Visigoths to Spain
a. system of community property in marriage
b. advancement to heirs
• Early of the 5th century, ALARIC, Goth leader invaded Italy and the heart of the western empire including Spain. This led to the
promulgation of the CODE OF ALARIC which introduced the tribal customs of the barbarians to Roman law.
• This opened the way in Spain for the introduction to Germanic custom law so that when the FIRST GREAT CODE OF SPAIN, FUERO
JUZGO was enacted it contained
3 categories of law
a. Roman law
b. Various German customs
c. Canon of ecclesiastical councils
• In 711 the Moors invaded and occupied most of Spain and lasted twice as long as the Spain Rule over the Phil. This retarded the
development of Spanish law but it did not wipe out the gains in previous eras.
• This was because the conquered Spaniards were governed, in their internal affairs, by their own laws and by their own officials.
• Visigoth-Roman law continued to apply to the Spaniards.
• RECONQUISTA- period where various cities were given or assumed their own codes
• Fuero Juzgo was given to the city of Cordova in 1241.
• After the reconquista, Fernando III began and Alfonso X completed a new system of Spanish law called SIETE PARTIDAS which is
based on law of Spanish Visigoths but patterned after Justinian Institutes. It was ignored for 70 years and in 1338 became law of
Castille and in 1492 by all Spain. At this time Spain felt the need for a common law.
• The Siete Partidas
1. Natural law, usages, customs of Catholic church and religious laws
2. Administrative law
3. Court organization and procedure
4. Family matters and personal relations
5. Obligations and contracts6.succession, intestacy, heirs and guardianship
7. Penal code
C. Philosophy of Law (Medieval Period)

• It was a Philosophy of Compromise (according to Berolzheimer)
• Medieval society was divided into 3 basic orders: a. Religious b. Military c. Workers
• Hierarchical system revolved around the relationship between lord and vassal.
• Vassalage was not a legalistic concept that would approximate a social compact; it was more of an emotional bond between lord and
servant
• The rise of Christianity did have an effect on the Philosophy of law during this period
1. It drew the law closer to theology in the sense that since a personal God governs the world, law is therefore founded on the will and
wisdom of God
2. There arose a legal relationship between the church and state, church above the state
• This was presented clearly in the works of St. Augustine, De Civitate Dei. His contribution was the concept of pax as the regulating
principle which is not peace but that which brings peace.
D. Philosophy of Law (Late Medieval Law)
• There was a slight shift with the partial return of classic philosophical thought with the partial return of classic philosophy in
SCHOLASTICISM.
• Aristotle‘s teachings were studied from a prism of religious dogma and as a result it developed religious dogmas with rational analysis
within the framework of the Catholic faith.
• Legal philosophy culminated in the SUMMA THEOLOGIAE of St. Thomas.
• He distinguished 3 orders of laws:
1. lex aeterna – divine reason which governs the world
2. lex naturalis – natural law which men know through reason
3. lex humana – positive law which is man-made application of the natural law to particular situations
While the Romans used bonus paterfamilias as norm of their system, St. Thomas Aquinas used the average nature of man as the
limitation of legal restraint. He established a penal principle and determined by its application.
• Aquinian definition of JUSTICE:
a. justitia generalis – comprising all earthy virtues
b. justitia particularis
b.1. justitia commutativa-obligation of restitution to prevent unjust enrichment
b.2 justitia distribution-distributive justice which is the application of the proceeds of justice of geometrical proportions
• Spain continued the scholastic philosophy even after the medieval period. In fact, it was the only country which was not influenced by
the renaissance as the term is understood to mean a general detachment from the religious dogmatism of the Middle Ages.
• Revision of laws in Spain (14th century) reflected strong influence of medieval philosophy.
• ORDENAMIENTO DE ALACALA emphasized the spiritual aspect of contracts and practically ignoring the element of form stressed in
the Partidas.
• Lesion in sales was introduced – inadequacy amounting to more than one-half the price. The taking of interest was also prohibited.
• In 1502, the Spanish Cortes promulgated the Leyes de Toro.
• 1567- La Nueva Recopilacion published by Philip II
• 1799-Napoleon Bonaparte came to power in France and promulgated Code of Napoleon in 1805.
• 1899-Civil Code of Spain became the model in a number of European countries (4 books)
III. Philosophy of Innovations in the Present Civil Code
• 53% of our present CC were textually lifted from the Spanish Civil Code of 1889.
• The main philosophical strand of our civil law is the Romano – Germanic element to which were added the concepts and principles of
equity in England and of torts in America.
• Strains between jus civile and the scholastic philosophy reflected in the Code Commssion.
• Our CC enacted the morals of the Catholic religion into law and perpetuated the institutions of Catholicism.
• Overriding philosophy of our CC is that of NATURAL LAW.
• THE PHILOSOPHY OF INDIVIDUALISM THAT CHARACTERIZES THE INNOVATIONS ON OUR CIVIL CODE IS NOT THAT OF
THE OLD ROMAN LAW; IT IS THE INDIVIDUALISM OF AMERICAN COMMON LAW.
• These are the provisions on:
1. independent civil actions, similar to the American law on torts
2. actions for damages for violation of the rights enumerated in the bill of rights or for violation of privacy
• Philosophy of the Anglo-American torts is that private wrongs should be redressed in a private civil action. When this principle shall
have seeped into the general consciousness of our people, there will arise and develop a spirit of individual independence on which,
when all is said and done, popular government rests.
• Family Code – adopted the medieval attitude on marriage as a contract between families, instead of one between individuals.
• In the medieval period, marriage was looked upon, not as the fruit of love and courtship between two individuals, but as a strategy for
a family to obrain military, financial or property alliance with another family.
• It was in this sense that marriage was anti-individualistic in philosophy, and it became a social institution at the level of the extended
family system and feudal bond.
• In property law and Succession – economic individualism. The sovereignty of the property owner and the property rights of the family
are still the basic tenets of our law on property.
• It hardly mentions the social functions or property, expect for provision on easement and servitudes. Its provisions on ownership all
point to possessive individualism.
• In contracts and obligations, Pound mentioned that before it was the enforcement of the promises that was morally binding but later in
the 19th century, with the creation of more wealth and property, men became more interested in freedom to contract than about
enforcement of promises.
• The important institution was a right of free exchange and free contract, deduced from the law of equal freedom as a sort of freedom
of economic motion and locomotion.
• Jurists saw freedom as a civil or political idea realizing itself in a progress from status to contract in which men‘s duties and liabilities
came more and more to flow from willed action instead of from the accident of social position recognized by law.
• Drafters of our CC borrowed from the Spanish Civil Code of 1889 the Roman and the scholastic philo of the law of contracts, bonded it
with the Anglo-American elements of individualism, and produced a hybrid which is recognizable in natural law.
• Individual is the high point in the philosophy of law.
Lynch, “Land Rights, Land Laws and Land Usurpation: The Spanish Era” 63 Phil. L.J. 82
The Legal Landscape
 It was the gradual adoption of the European principle of individual ownership.

 Crown lands comprised all areas not used or occupied by the natives. Private estates owned by Spanish citizens and friar
orders were also established by royal grants later on.
 The colonial government was bedeviled throughout its existence with confusion and unrest over land rights. The legal
significance of land registration, for instance, was never resolved.
 The regime did not levy land taxes, hence there was no systematic records of agricultural lands.
Customary Rights
 King Philip expressly forbade occupation of lands occupied by the natives. Alienation of communal property was illegal; only
individually held rights were alienable.
 The Spaniards only documented individually owned lands. The indigenous people had not means to secure documentation for
their lands, and in turn, the absence of legal machinery for documenting the communal rights facilitated the ever-expanding
pattern of land usurpation.
Crown Lands/Terrenos Realengos
 Royal lands were those not occupied by natives. They symbolized the largesse which the crown and authorized subordinates
could bestow on those deemed to be deserving.
 Individuals could pass on their rights to legitimate heirs but sales were prescribed without the consent of the Audiencia‘s fiscal.
In addition, title to terrenos baldos or abandoned crown lands, was to be reverted to the crown should they not be cultivated
within two years.
Royal Grants
 Most common grant, usually given to soldiers or colonial officials for their meritorious service.
 Almost 208 concessionares were made between 1571 and 1676, using the standards utilized in Mexico.
o Estancia para Ganado mayor = large estate intended for cattle ranching.
o Estancia para Ganado menor = only ¾ as large and was meant for grazing of horses and smaller farm animals
o Caballeria was only 68 hectares while a Cabalita or peonia was half as large, and finally, pedazo, for smaller and
irregular plots of land.
 The issuing of grants were discontinued when, due to the rapacious conduct of economienderos and the failure to cultivate the
lands given through grants caused food shortage in the Manila-based areas.
 Many mortgaged their farm lands to friars. Only the religious orders provided a stable exogenous element in terms of land
allocations an usage. This stability allowed the orders to expand their right over prime agricultural lands.
 Taking up after the Spaniards, the commoditization of land rights commenced as local native elites began to secure
individually documented rights to agricultural lands in southern Luzon and coastal areas in the north and Visayas.
Church Estates
 Ecclesiastical lands became the largest single item of Spanish-owned latifunda after the ban on religious order owning lands
was lifted.
 By loaning tools and seeds for crops to farmer –tenants, as well as casas de reservas (exemption from forced labor), friar
estates soon had numerous tenants, making the friar estates the largest source of income for the orders.
 It is very likely that friar lands acquired illegally outnumbered the ones legally acquired.
Ancestral Domain: Usurpation and Response

 The collusion of the principalia, who were vital conduits in the colonial system, and the friars caused the formation of
inalienable village lands as parts of a feudal-like organization.
 The surrounding lands often bore the brunt of the expansions of friar estates. The owners of usurped lands often resisted. The
complaints soon began piling up in Madrid.
 In response, several actions were instituted to investigate and fix the problem. The audiencia in the Philippines was pitted
against the friars and the papal nuncio. It was a tug-of-war, when changing audiencias sided with friars and restored them the
lands. More often than not, oidiers bowed to the friars.
The Rise of Mono-Cropping and Production Intermediaries
 The Royal Decree of 1754 declared that indigenes need not have documentary evidence of ownership. Proof of ancient
possession was enough. However, usurpation persisted.
 Some governors-general were not sympathetic to indigenous land rights. Basco was on such official. He supported numerous
projects geared towards agricultural intensification, primarily by the issuance of monopoly licenses for the cultivation of coffee,
spices, indigo, tobacco and other crops.
 Though immediately profitable, few natives benefited. As a corollary, the rise of highway robbery and outlawry.
 Hacienderos could not possibly till the lands themselves, so they took outside help, leasing portions of the haciendas to fixed
rate tenants who rented them out to sharecroppers.
The Penultimate Century

th
 In the 19 Century, there were four classes of estate proprietors: 1) The religious orders; 2) about 12 Spanish entrepreneurs;
3) the principal mestizos and Indians who were the body of farming (who had a lot of clout); and 4) all other natives.
 There was a rise in production intermediaries correlated by absentee ownership
 Landless laborers also appeared. The larger owners of estates lived in opulence while the tenants, in squalor. This was
especially apparent in Negros.
 The penultimate century was characterized by the opening of cultivation of large forested plains in Central Luzon and Western
Visayas. They were soon overtaken by large haciendas.
Pacto de Retroventa
 In tagalog, ―sanglang-bili‖ or usurious mortgage.

 Privately used, unused land was held as collateral to a money lender. When the debtor was unable to pay for the loan plus
interest, the lender got to keep the land, paying only for a third of its worth.
 This caused a problem because mortgagers soon became piled up, causing confusion as to who was mortgaging which land.
Land Registration
 In the absence of a scheme, or bureaucratic structures to implement it, many owners and prospective owners began to have
their property notarized.
 There were several ineffective efforts for land registration in the course of Spain‘s colonial government. In 1880, limits were
imposed on the measure of land one could acquire. By 1883, thousands of expedientes (registration petitions) have been filed.
Delays were common. By 1884, they registration process became decentralized. By 1888, the process was considered a
failure.
 The people clamored for better process of legalizing their claim to their lands.
The Maura Law of 1954
 The last land act enacted by the Spanish Empire.

 Art. IV provided that, should lands not be adjusted before the enactment of the Law, the lands would be reverted to the State.
 From the perspective of the masses, the importance of the Maura Law did not emanate from the benefits received. Instead, it
theoretically empowered the colonial government to deny legal recognition of customary property rights.
 Demonstrated the colonial regime‘s insensitivity to the plight and potentials of the masses.
A Revolutionary Denouement
th
 Two years after the Maura Law was enacted, the Empire began to crumble. Landowning elites prospered during the 19
century and were able to send their sons to schools abroad, springing forth the Ilustrado class, who attempted reform.
 Their efforts fell short, however, it found impact on the masses who began to revolt against the Empire. One of the principal
causes of rural discontent was the inequitable allocation of legal rights to arable land resources.
 When eventually the revolution won, and the Malolos Convention happened, nothing much changed. The Convention was
dominated by the rich and landed principalia of the foregone Spanish colonial regime. The issue of land claims remained in
favor of those who possessed them, causing tensions to rise between the conservative elites and the progressive masses.
Chapter VIII. “After the Spanish Conquest”, In Gamboa, Introduction to Philippine Law (1969)
Expansion of Spanish Colonies
 Started in South America – this explains why most countries there adopted Spanish
o Spain also underwent several revolutions
 Laws of Spain became beneficial also to the Filipinos however they were not properly implemented in the Philippines because
of reasons like ignorance of the natives
1. Roman Law -496 AD
2. 7 Partidas
3. 3. Compilation – Leyes de Indios
4. Marriage, Commerce, Water
5. Maura Law – required survey of all land ownership, registration of sales and transfer of land ownership
FIRST PERIOD: (1898 – 1900)
Public law
 Constitutional law
 Administrative law
 Criminal law
 Rules of procedure
Private law – deals with relationships among individuals
 Civil code
 Commercial code
 Transportation law
When the Americans came, the laws maintained by American jurists were most of the laws under private law. In public law, criminal law
was maintained but some of the areas in public law were abrogated such as Constitutional law and Procedural law. The Americans
decided to retain the Penal code because they found out that the crimes that operated in the Spanish law were more or less common
with their common law.
Philippine Common Law was brought by the Americans to the Philippines. It had the characteristics of American common law in such a
way that certain ideals and precedents were based according to how cases were derived but the basis of these cases the Spanish
statute laws.
Before the Philippine Commission was established, it was a Military Government (1898 – 1900) and the laws were in form of General
Orders
General Merit – Instituted General Order 68 - Codified Marriage laws including Civil Marriage to delineate Church from State.
SECOND PERIOD: (1901 – 1906)
Philippine Commission – made the Philippines a Parliamentary form of Government
The Philippine Commission was a body appointed by the President of the United States to exercise legislative and limited executive
powers in the Philippines. It was first appointed by President William McKinley in 1901. Beginning in 1907, it acted as the upper house
of a bicameral legislature, with the elected Philippine Assembly acting as lower house. The Jones Act of 1916 created an elected
Philippine Senate to replace the Philippine Commission.
Governor General was the Executive

The Taft Commission, also known as Second Philippine Commission, was established by United States President William McKinley
on March 16, 1900. The Commission was the legislature of the Philippines, then known as the Philippine Islands under the sovereign
control of the United States during the Philippine-American War. After the passage of the Philippine Organic Act in 1902, the
Commission functioned as the one House of a bicameral legislature until it was supplanted in 1916 by an elected legislature established
in 1916 by the Philippine Autonomy Act. William Howard Taft was the first head of the Philippine Commission, a post he filled between
March 16, 1900 and September 1, 1901. Taft then succeeded himself as commission head, while concurrently serving as Civil
Governor until January 31, 1904. The Philippine Commission was subsequently headed by a number of persons, but is often mentioned
informally and collectively as the "Taft Commission".
Judicial System
They put up trials courts. Taft was surprised with the extent of corruption in the Judiciary so he wrote a letter to a friend saying
that you can count with your fingers the number of honest Filipino judges. That‘s why he recruited lawyers in the US. He said that
Filipino judges could not be trusted to be impartial. This also explained why the jurist system was not extended to the Philippines
THIRD PERIOD: (1907 – 1916)
1907 National Assembly was created. It performed law making functions but the Philippine Commission still operated and served as the
Upper House.
Factors that led to the Philippine Common Law
 Commissioners borrowed American Statutes which had to be interpreted in line with the US interpretation.
 Appointment of American judges simply because Taft did not trust Filipino judges. These American judges interpreted Spanish
Civil Code in the way it was interpreted by the American jurists since they were not familiar with the way
 Development in commerce, transportation, communication made by scientific and technological advances which opened us to
modernized commercial code.
Mastura, Harmonization of Adat Law vis-a-vis western Law within a Single Polity, “Vol. 1, ASEAN Law and Society 44 (1986)
I. Introduction:
- Subject of law harmonization is full of pitfalls, if not contradictions. Confusion may arise in matching adapt, as a concept of
law, with the Western Law.
- Adat generally as a source of Law corresponds to he idea of the English ―customs‖ which are spoke of as having the force
of communal sanction. These are legal maxims developed from the legal consciousness of the community
II. Adat as Statement of Law
- ―ought proposition‖ –> one of the fundamental concepts to which Adat centers;
o ―what ought to be the law‖ in a given case as against Western law‘s ―what the law is‖
- Procedural means to Establishment validity of ―ought‖ propositions

o In the context of evidentiary law
 Art 11 (Civil Code) – Custom which are contrary to law, public order or public policy shall not be
countenanced
 Art 12 (Civil Code) – A Custom must be proved as fact, according to the rules of evidence
 PD No. 1803 ―Code of Muslim Personal Laws of the Philippines‖
 Art 5. Proof of Muslim law and ada – Muslim law and ada not embodied in this Code shall be
proven in evidence as a fact. No ― ada‖ which is contrary to the Constitution of the Philippines,
this Code, Muslim law public order, public policy or public interest shall be given any legal
effect
 1973 Constitution of the Philippines Art XV – The state shall consider the customs, traditions, beliefs,
and interest of national cultural communities in the formulation and implementation of state policies
o Administering by court
 Art 8 (Civil Code) – Judicial decisions applying or interpreting the laws of the Constitution shall form a
part of the legal system of the Philippines
 Art 9 (Civil Code) – No judge or court shall decline to render judgment by reason the silence, obscurity
or insufficiency (of the law)
III. Conflict of Law Situation
- Problem of harmonization
o Conflict of laws situation context –

 In actual cases of fac-to-face conflict, the rules of statutory construction does seem to be helpful
because adapt laws are not law declarations
 Private international law does not provide much criteria for conflict resolution as when adapt and
religious law do not complement each other with Western Law
o Political question which hinges of legal pluralism
- Approaches used by other countries with regard to legal pluralism:
o Indonesia, (where Azy Ignacio grew up) – used the ―Principle of Equalization of Levels‖ between Western and
adapt. This principle is the means of adjusting the contents of the colonial laws with the laws then enforceable
o The British who ruled Malaya, Ceylon, and India used ―Trichoomy Rules of Decision‖
 First – custom and usage established as having the force of law
 Second – religious civil laws as verified in written sources
 Third – laws of general application enforced by the government
IV. Codification or Digest
- Codification and digest indicate composite nature of adapt. 2 important notes:

o A policy decision was reached to decree and recognize the Muslim legal system as part of the law of the land,
and to codify Muslim personal laws on practically Westerized legal forms. As a legal consequence, it has
formalized the judicial process and the Supreme Court has had to promulgate a Shari‘a Rules of Procedure
o The Statutory form was confined to the Muslim family law including succession, but adat structure has retained
its traditional forms. A kind of restatement of case law will inevitably provide adapt an addendum form as when
the Supreme Court has to lay its ratio decidendi with principles of adat
V. Comparative Law Studies
- Diwan of Sulu; and the Luwaran of Maguindanao – comparative study of adat and Muslim law. Texts promulgated by
th th
Sultanates in the 18 Century and updated towards the turn of the 19 Century. The Moro codex were administered by
the Kadis and Panglimas in Mindanao, Sulu, and Palawan regions.
o Classification – Malay adat temenggong with reference to the patrilineal kingship system in Southern Phil
- Ifugao Law (1919)

- Tiruray Justice (1970)
- Manuvu (1973)
- Custom law of Pre-conquest Philippines (1976)
Note: There is an obvious scope of adat complilation:
o Customary law forms are characteristically family law in nature

o Religion (ritual) and customary law appear complementary in establishing the jural relationship
o There exists similarity of range of meaning of the term adat or custom which cut across the Western sub-division
of law of property, inheritancem and procedure
VI. Summary of points
- The humanity in adapt has been downplayed in legal anthropology by framing it under the label ‗primitive law‘. Adat, as a
concept of law, was taken for granted by civil jurists for judicial reasons
- A movement in the development if Philippine law is underway to incorporate adapt into the dynamics of the judicial
process. The historical relation of adapt and Muslim law with the Western legal System was held controversial in some
points. Knowledge of personal laws cannot be confined to statutory forms which explains why elements of legal pluralism
subsist in Southeast Asia. The amalgamation of the Philippine legal system between Western law sources and Muslim
law sources as well as adapt laws is another major case study in law reform and legal education.‖
Maitland, “Prologue to the History of English Law” (Reprint)
300 AD –
- the constitutions of the emperors appeared as the only active source of law
- collections of Codex Gregorianus and Codex Hermogenianus were unofficially made; these have perished though, with the
claim that they were, in fact, made in the East instead of the West
400 AD –
- Christianity became a lawful religion (313); after a few years it became the only lawful religion
- Known as the Century of Ecclesiastical Councils; the bishop of Rome was becoming a legislator, perhaps a more important
legislator than the emperor.
- In 380 Theodosius himself commanded that all people should follow not just the religion Christ has brought to the world, but
also the religion that St. Peter had delivered to the Romans.
- It was necessary for the state to protest that criminal jurisdiction was still in its hands. The church was demanding
independence of the state and even dominance over the state: the church may command and the state must obey.
th
5 Century –
- Issuance of statute-books, most notably that of Theodosius II and Euric the West Goth
- Theodosian code was an official collection of imperial statues beginning with those of Constantine I. It was issued in 438 with
the consent of Valentinian III who was reigning in the West. It was no ―code‖ in our modern sense of the term. It was only a
more or less methodic collection of modern statutes. Also it contained many things that the barbarians had better not have
read; bloody laws against heretics, for example.
- Already Rome had been sacked by the West Goths; they were founding a kingdom in southern Gaul and were soon to have a
statute-book of their own.
- Euric the West Goth (circa 470 – 475) published a large law book. He was a conquering king; he ruled Spain and a large part
of southern Gaul. His laws were not nearly as barbarous.
* The West Goths wandered across Europe were veneered by Roman civilization. Their later law books: Reckessuinth (652-672), that
of Erwig (682), that of Egica (687-701), are said to be verbose and futile imitations of Romand codes.
* But Euric laws are sufficient to remind us that the order of date among these Leges Barbarorum is very different form the order of
th
barbarity. Scandinavian laws that are not written until the 13 century will often give us what is more archaic than anything that comes
th th
from the Gaul of the 5 or the Britain of the 7 .
th
6 Century –
- Century of Justinian
- The barbarians had been writing down their customs. The barbarian kings had been issuing law books for their Roman
subjects. Books of ecclesiastical law, of conciliar and papal law, were being compiled.
- Lex Salica was deprived of its claim to be the oldest extant statement of Germanic custom with the discovery of fragments of
th th
the laws of the Euric the West Goth. It comes out between the 5 and 6 century. Nothing heathen in it, and nothing
distinctively Christian. Like other Germanic folk-laws, it consists largely of a tariff of offences and atonement. By virtue of the
Norman Conquest, it‘s one of the ancestors of English Law.
- It‘s thought that the main part of Lex Ribuaria is older than 596. On the other tlhand, there seems little doubt that the core of
th
the Lex Burgundionum was issued by King Gundobad (474-516) in the last years of the 5 century.
- There were many Romani as well as many barbari for whom their kings could legislate. Hence the Lex Romana Burgundionum
(seems to be the law-book that Gundobad promised to his Roman subjects) and the Lex Romana Visgothorum.
- Rules have been taken from the three Roman codices, from the current abridgements of imperial constitutions and from the
works of Gaius and Paulus.
- Far more comprehensive and far more important was the Breviary of Alaric or Lex Romana Visigothorum. Euric‘s son, Alaric II,
published it in
506 as a statute book; among the Romani of his realm it was to supplant all older books. It contained large excerpts from the
Theodisian Codex, a few from the Gregorianus and Hermogenianus, some post- Theodisian constitutions, some of the
Sententiae of Paulus, one little scrap of Papinian and an abridged version of the Institutes of Gaius. The greater part of these
texts was equipped with a running commentary (interpretatio) which attempted to give their upshot in a more intelligible form.
It is thought nowadays that this ―interpretation‖ and the sorry version of Gaiuxs represent, not Gothic barbarism, but
degenerate Roman science.
- The West Goth‘s power was declining. Alaric issued his statute- book when he was slain in battle by the Franks. Soon the
Visigothic became a Spanish kingdom. There it was abrogated by Reckessuinth when he issued a code for all his subjects of
every race. On the other hand, it struck deep root in Gaul. It became the principal, if not the only, representative of Roman law
in the expansive realm of the Franks.
- Then again, while Tribonian was busy upon Digest, the East Goths were still masters of Italy.
- In 476, one emperor, Zeno at Byzantium, was to be enough. Odovacer had ruled as patrician and king. He had been
conquered by the East Goths.
- The great Theodoric had reigned for more than thirty years (493-526); he had tried to fuse Italians and Goths into one nation;
he had issued a considerable body of law, the Edictum Theodorici, for the more part of a criminal kind.
- Lastly, about the year 500 there was in Rome a monk of Scythian birth who was labouring upon the foundations of the Corpus
Iuris Canonuci. He called himself Dionysius Exiguus. He was an expert chronologist and constructed the Dionysian cycle. He
was collecting and translating the canons of eastern councils; he was collecting also some of the letters (decretaal letters they
will be called) that had issued by the popes from Siricius onwards (384-498).
- Collectio Dionysiara made its way in the West. Some version of it may have been the book of canons which Archbishop
Theodore produced at the Council of Hertford in 673.
- Dionysio-Hadrana was sent by Pope Hadrian to Charles the Great in 774. It helped to spread abroad the notion that the
popes can declare, even if they cannot take, law for the universal church, and thus to contract the sphere of secular
jurisprudence.
- In 528, Justinian began the work which gives him his fame in legal history. It was finished in 534. The main work that he did for
the coming centuries lies in the Digest, very little of the ancient treasure of wisdom would have reached modern times;
- We are told nowadays that in the Orient, the classical jurisprudence had taken a new lease of life, especially in the schools at
Berytus.
- The ius, the unenacted law, ceased to grow three hundred years ago. In time Justinian stands as far from the jurists whose
opinions he collects as we stand from the Coke or even from Fitzherbert.
- It has been recalled from the Institutes the boast that Africa had been reclaimed. Little was at stake there for Africa was
doomed to the Saraceans; nor could transient success in Spain secure a western home for the law-books of Byzantium. All
was at stake in Italy.
- The struggle with the East Goths was raging; Rome was captured and recaptured. At length the emperor was victorious (552),
the Goths were exterminated or expelled. Justinian could now enforce his laws in Italy, and this he did by the pragmatic
sanction pro petitione Vigilii (554).
- The fourteen years are critical in legal history; they suffer Justinian‘s books to obtain a lodgement in the West. The occidental
world has paid heavily for Code and Digest in the destruction of the Gothic kingdom, in the temporal power of the papacy and
in an Italy never united until our own day; but perhaps the price was not too high.
- The Roman empire centred in New Rome has just strength enough to hand back to Old Rome the guardianship of her
heathen jurisprudence, now ―enucleated‖ (as Justinian says) in a small compass, and then loses forever the power of
legislating for the West.
- True that there is the dwindling exarchate in Italy; true that the year 800 is still far off; true that one of Justinian‘s successors,
Constantine IV, will pay Rome a twelve days‘ visit (663) and rob it of ornaments that Vandals have spared; but with what we
must call Greco-Roman jurisprudence, with the Ecloga of Leo the Isaurian and the Basilica of Leo the Wise, the West, if we
except some districts of southern Italy, has no concern. He was to be the true lord of Rome, if he loathed the Lombard, loved
not the emperor.
- Justinian had taught Pope Vigilius, the Vigilius of the pragmatic sanction that in the Byzantine system the church must be a
department of the state. The bishop of Rome did not mean to be the head of a department.
- During the centuries Pope Gregory the Great (590-604) is one of the westerns whose use of the Digest can be proved. He
sent Augustin to England. In ―Augustin‘s day,‖ about the year 600, Ethelbert of Kent set in writing the dooms of his folk ―in
Roman fashion.‖ They are also, unless discoveries have yet to be made, the first Germanic laws that were written in a
Germanic tongue.
- Statutes appear as the civilized form of law. Thus fermentation begins and the result is bewildering. New resolves are mixed
up with statements of old custom in this Leges Barbarorum.
- The century which ends in 700 sees some additions made to the Kentish laws by Hlothaer and Eadric, and some others made
by Wihtraed; there the Kentish series ends. It also sees in the dooms of Ine the beginning of written law in Wessex. It also
sees in the beginning of written law the Lombards, in 643 Rothari published his edict; it is accounted to be one of the best
statements of ancient German usages. A little later, the Swabians have their Lex Alamannorum, and the Bavarians their Lex
Baiuwariorum.
- It is only the Karolingian age that written law appears among the northern and eastern folks of Germany.
- Only two of ―heptarchic‖ kingdoms leave us law, Kent and Wessex, though we have been reason to believe that Offa the
Mercian (ob. 796) legislated. Even Northumbria, which was a bright spot in a dark world, bequeathes no dooms. The impulse
of Roman example soon wore out. When once a race has its Lex, its aspirations seem to be satisfied.
- About the year 1900 Alfred speaks as though Offa (circ. 800), Ine (circ. 700), AEthelbert (circ. 600) had left him little to do.
- Only among the Lombards, who from the first, despite their savagery, seem to show something that is like a genius for law,
was there steadily progressive legislation.
- Grimwald (668), Liutprand (713-35), Ratchis (746), and Aistulf (755) added to the edict of Rothari. By developing their own
ancient rules, the Lombards were training themselves to be the interpreters and in some sort the heirs of the Roman
prudentes.
- As the Frankish realm expanded, there expanded with it a wonderful ―system of personal laws.‖ It was as system of racial
laws. The Lex Salica, for example, was not the law of a district; it was law of a race. The Swabian, wherever he might be, lived
under his Almannic law, or, as an expressive phrase tells us, he lived Alamannic law (legem vivere). So Roman law was the
law of the Romani. In a famous, if exaggerated sentence, Bishop Agobard of Lyons has said that often five men would be
walking or sitting together and each of them would own a different law. It was natural then that the Romani should live their
old law, and, as we have seen, their rulers were at pains to supply them with books of Roman law suitable to an age which
would bear none but the shortest of law-books. It is doubtful whether the Salian Franks made from the first any similar
concession to the provincials whom they subdued; but, as they spread over Gaul, always retaining their own Lex Salica, they
allowed to the conquered races the right that they claimed for themselves. It would seem that among the Lombards, the
Romani were suffered to settle their own disputes by their own rules, but Lombard law prevailed between Roman and
Lombard. However, when Charles the Great vanquished Desiderius and made himself king of the Lombards, the Frankish
system of personal law find a new field.
- A few years afterwards (800) a novel Roman empire was established. One of the immediate results of this many-sided event
was that Roman law ceased to be the territorial law of any part of the lands that had become subject to the so-called Roman
Emperor. In the future, the renovatio imperii was to have a very different effect. If the Ottos and Henries were the successors
of Augustus, Constantine, and Justinian, then Code and Digest were Kaiscrrccht, statute law for the renewed empire. But
some centuries were to pass before this history would be evolved, and yet other centuries before it would practically mould the
law of Germany. Meanwhile, Roman law was in Rome itself only the personal law of the Romani.
- A system of personal laws implies rules by which a ―conflict of laws‖ may be appeased, and of late years many of the
international or intertribal rules of the Frankish realm have been recovered.
- North of the Alps the current Roman law regarded Alaric‘s Lex as its chief authority. In Italy, Justinian‘s Institutes and Code
and Julian‘s epitome of the Novels were known, and someone may sometimes have opened a copy of the Digest. But
everywhere the law administered among the Romani seems to have been in the main a traditional, customary law which paid
little heed to written texts. It was, cin romisches Vulgarrecht, which stood to pure Roman law in the same relation as that in
which the vulgar Latin or Romance that people talked stood to the literary language. Not a few of the rules and ideas which
were generally prevalent in the West had their source in this low Roman law. In it starts the history of modern conveyancing.
- The Anglo Saxon ―land-book‖ is of Italian origin. That England produces no formulary books, no books of ―precedents in
conveyancing,‖ such as those which in considerable numbers compiled in Frankland, is one of the many signs that even this
low Roman law had no home here; but neither did our forefathers talk low Latin.
- In the British India of today we may see, and on a grand scale, what might well be called a system of personal laws, of racial
laws. If we compared it with the Frankish, one picturesque element would be wanting.
- During the golden age of the Frankish supremacy, the age which closely centres round the year 800, there was a good deal of
definite legislation: much more than there was to be in the bad time that was coming. The king or emperor issued capitularies
(capitula). A superstructure of capitularies might be reared, but the Lex of a folk was not easily alterable.
- In 1827 Ansegis, Abbot of St. Wandrille collected some of the capitularies into four books. His work seems to have found
general acceptance, though it shows that many capitularies were speedily forgotten and that much of the Karolingian
legislation had failed to produce a permanent effect. Those fratricidal wars were beginning. The legal products which are to be
characteristic of this unhappy age are not genuine laws; they are the forged capitularies of Benedict the Levite and the false
decretals of the Pseudo-Isidore.
- Another celebrated collection seems to have taken shape in the Spain of the seventh century; it has been known as the
Hispana or Isidoriana, for without sufficient warrant it has been attributed to that St. Isidore of Seville (ob. 636), whose Origines
served as an encyclopaedia of jurisprudence and all other sciences. The Hispana made it sway into France, and it seems to
have already comprised some spurious documents before it came to the hands of the most illustrious of all forgers.
- Then out of depth of the ninth century emerged a book which was to give law to mankind for a long time to com. Its core was
the Hispana; but into it there had been foisted, besides other forgeries, some sixty decretals professing to come from the very
earliest successors of St. Peter. The compiler called himself Isidorus Mercator; he seems to have tried to personate Isidore of
Seville. Many guesses have been made as to his name and time and home. He has been sought as far west as le Mans, but
suspicion hangs thickest over the church of Reins. The false decretals are elaborate mosaics made up out of phrases from
the bible, the fathers, genuine canons, genuine decretals, the West Goth‘s Roman law-book; but all these materials, wherever
collected, are so arranged as to establish a few great principles: the grandeur and superhuman origin of ecclesiastical power,
the sacrosanctity of the persons and the property of bishops, and, though this is not so prominent, the supremacy of the
bishop of Rome. Episcopal rights are to be maintained against the chorepiscopi, against the metropolitans, and against the
secular power. Above all (and this is the burden of the song), no accusation can be brought against a bishop so long as he is
despoiled of his see: Spoliatus episcopus ante omnia debet restitui.
- Closely connected with this fraud was another. Someone who called himself a deacon of the church of Mainz and gave his
name as Benedict, added to the four books of capitularies, which Ansegis had published, three other books containing would-
be, but false, capitularies, which had the same bent as the decretals concocted by the Pseudo-Isidore. These are not the only,
but they are the most famous manifestations of the lying spirit which had seized the Frankish clergy. The Isidorian forgeries
were soon accepted at Rome.
- And now for the greater part of the Continent comes the time when ecclesiastical law is the only sort of law that is visibly
growing. The stream of capitularies ceased to flow; there was none to legislate; the Frankish monarchy was going to wreck
and ruin; feudalism was triumphant. Sacerdotalism was also triumphant, and its victories were closely connected with those of
feudalism. The clergy had long been striving to place themselves beyond the reach of the state‘s tribunals. The dramatic
struggle between Henry II and Becket has a long Frankish prologue. Some concessions had been won from the
Merovingians; but still Charles the Great had been supreme over all persons and in all causes. Though his realm fell asunder,
the churches were united, and united by a principle that claimed a divine origin. They were rapidly evolving law which was in
course of time to be the written law of universal and theocratic monarchy.
- The mass, now swollen by the Isidorian forgeries, still rolled from diocese to diocese, taking up new matter into itself. It
became always more lawyerly in form and texture as it appropriated sentences from the Roman law-books and made itself the
law of the only courts to which the clergy would yield obedience.
- Among the many compilers of manuals of church law three are especially famous: Regino, abbot of Prum (906-915);
Burchard, bishop of Worms (1012-1023); and Ivo, bishop of Chartres (ob. 1117). They and many others prepared the way for
Gratian, the maker of the church‘s Digest, and events were deciding that the church should also have a Code and abundant
Novels. At the date of the Norman Conquest the flow of these edicts was becoming rapid.
- Historians of French and German law find that a well-marked period is thrust upon them. The age of the folk-laws and the
capitularies, ―the Frankish time,‖ they can restore. They are compelled rapidly to pass through several centuries to a new
point of view. To connect this new order with the old, to make the world of ―the classical feudalism‖ grow out of the world of
the folk-laws is a task which is being slowly accomplished by skilful hands; but it is difficult, for, though materials are not
wanting, they are not of a strictly legal kind; they are not laws, nor law-books, nor statements of law.
- The French historian will tell us that the last capitularies which bear the character of general laws are issued by Carloman II in
884, and that the first legislative ordonnance is issued by Louis VII in 1155. Germany and France were coming to the birth,
and the agony was long. Long it was questionable whether the western world would not be overwhelmed by Northmen and
Saracens and Magyars, perhaps it was saved by feudalism.
- Strangely different is our English history. The age of the capitularies , begins just when it has come to its end upon the
Continent. It was heard that in the day of Mercia‘s greatness Offa (ob.796), influenced perhaps by the example of Charles the
Great, had published laws.
- The age of capitularies begins with Alfred, and in some sort it never ends, for William the Conqueror and Henry I take up the
tale.
- Cnut had published in England a body of laws which, if regard be had to its date, must be called a handsome code.
- Capitularies or statutes which enact territorial law came from Karolingian emperors and from Karolingian kings of Italy, and
then from the Ottos and later German kings.
- Lombardy was the country in which the principle of personal law struck its deepest roots. Besides Lombards and Romani,
there were many Franks and Swabians who transmitted their law from father to son. It was long before the old question Qua
lege vivis? lost its importance. The ―conflicts of laws‖ seems to have favoured the growth of a mediating and instructed
jurisprudence.
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- Then at Pavia, in the first half of the 11 century, a law-school had arisen. In it men were endeavouring to systematize by
gloss and comment the ancient Lombard statutes of Rothari and his successors. The heads of the school were often
employed as royal justices (indices palatini). From out this school came Lanfranc.
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- The influence of reviving Roman law is not ignored. These Lombardists knew their Institutes, and before the 11 century was
at end, the doctrine that the Roman law was a subsidiary common law for all mankind (lex omnium generalis) was gaining
ground among them but still the law upon which they worked was the old Germanic law of the Lombard race.
- In 1038 Conrad II, the emperor whom Cnut saw crowned, ordained that Roman law should be once more the territorial law of
the city of Rome.
- In 1076 the Digest was cited in the judgment of a Tuscan court. Then, about 1100, Irnerius was teaching at Bologna. It is said
that he had a predecessor at Bologna, one Pepo by name. He was soon regarded as the founder of the school which was
teaching Roman law to an intently listening world.
- The monarchy of theology over the intellectual world was disputed. A lay science claimed its rights, its share of men‘s
attention. It was a science of civil rights to be found in the human heathen Digest.
- The theoretical continuity or ―translation‖ of the empire, which secured for Justinian‘s books their hold upon Italy, and, though
after a wide interval, upon Germany also, counted for little in France or in England. Also there was no need in England for that
reconstitution de l’unite nationale which fills a large space in schemes of French history, and in which, for good and ill, the
Roman texts gave their powerful aid to the centripetal and monarchical forces.
- In England, the new learning found a small, well conquered, much governed kingdom, a strong, a legislating kingship.
Jencks, “The Development of Teutonic Law” (Reprint)
Teutonic tribes did not impose their own customary laws in their conquered empire?
- They also allowed Roman law to govern, co-existing with the laws of the Germanic tribes.
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. 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.
II. Leges Barbarorum – customary laws of the Teutonic tribes.

- 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.
- 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.
o It is somewhat difficult to see how migratory groups would arrive at the notion of a lex terra, unless they were to
change their customs with each migrations
o Lex Ribuara for example says that… ―(accused) shall answer according to the law of the place where he was
born… (and) shall bear the loss not according to Ribuarian law but according to his own law‖
- 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.
o
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.
- 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 emperor‘s power waned in the west, and after the schism between Western and
Eastern Christianity. 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.
- 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.
IV. 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.
- 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
imposed 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.
- The peculiar character of the Fief led up to the famous doctrine of ―judgment by peers‖ (judicum per pares)
- The law of the Fief is the law of the court
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In the 9 and 10 century, there arose the Holy Roman Empire which was founded by Charles Martel in the 8 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.
Under the feudal law, the relations among parties is based on the status of the parties. It stratified the people inside the manor into:
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 ma nor 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.
V. Mercantile law
- Trade and commerce, almost extince in the Dark Ages which followed the downfall of the Karolingan Empire, revived with
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the better conditions of the 11 century, and were stimulated into sudden activity by the crusades.
- 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.
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In the 10 and 11 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 that‘s why they called it Common Law.
Effects of Norman Conquest:
1. It converted the law of England into a lex terrae, a true local law.
2. Common Law is the law of the court
3. Norman Conquest strengthened the position of the Crown in England – the creation of a charter as a general law
Pound, The Spirit of the Common Law (1921)
The Feudal Element
 The most tenacious legal system, according to the writer, is the Anglo-American legal tradition, or common law.
 Common law has countered every element that could have superseded it: French Law, German Law, English Law, and in the
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12 Century, Roman Law.
 There are two characteristics in legal tradition: 1) it is characterized by extreme individualism (individual rights of social
righteousness); and 2) it has a tendency to affix duties and liabilities independently of the will of those bound (consideration of
relations rather than legal transactions as the basis of legal consequences).
 There are seven factors that contributed to shape American Common Law: 1) An original substratum of Germanic legal
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institutions and jural ideas; 2) the feudal law; 3) Puritanism; 4) the contests between the courts and the crown in the 17
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century; 5) 18 century political ideas; 6) the conditions of pioneer or agricultural communities in America in the first half of the
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19 century; and 7) the philosophical ideas with respect to justice, law and the state that prevailed in the formative period in
which the English common law was made over for the people by the American Courts.
 Feudal law has always tempered the individualism of American law.
 While the basis was strict law, which was extremely individualist in nature, the primary social and legal institution of its time,
when common law was in its formative era, was the feudal relationship, which regarded men not with what they had
undertaken, but what he was relative to his rights against his lord and the rights of his lord against him as tenant.
 The common law judge tends to seek for some relation between parties, or as he is likely to put it, some duty of one to the
other (as in the case of a mortgagor and mortgagee; or the Magna Carta or the jural duties of a king to his tenants)

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In the 18 century, two theories merged in English common law: the relationship of king and subject and as a corollary, it
became the natural rights of man deduced from social compact. There is then a reciprocal rights and duties of lord and man.
 Even more significant is the legislative development by which duties and liabilities are imposed on the employer in the relation
of employer and employee, not because he has so willed, not because he is at fault, because of the nature of the relation is
deemed to call for it.
The Courts and the Crown
Along with the doctrine of judicial precedent and trial by jury, the doctrine of supremacy of law is one of the three distinctively
characteristic institutions of the Anglo-American legal system.
The Doctrine of the Supremacy of Law is based on the following:
- Juristically, it can be traced to the feudal idea of the relation of king and subject and the reciprocal rights and duties involved
4
therein.
5
- Historically, it goes back to a fundamental notion of Germanic law
- Philosophically, it is a doctrine that the sovereign and all the agencies thereof are bound to act upon principles.
However, the Doctrine of the Supremacy of Law only became definitely established as a result of the contests between the courts
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and the crown under the Tudors and Stuarts in the 16 and 17 centuries . A valiant fight against the movement for administrative
7 8
absolutism was waged by the common law courts, and in the end courts prevailed over the crown .
4
It is probable that the further extension of the legal doctrine of supremacy of law has its juristic origin in the medieval conception
of the distinction between temporal and spiritual jurisdiction. No temporal act, they said, can make the king parson without the
assent of the head of the church. In other words, there was a fundamental law, dividing temporal power from spiritual power,
which ran back of all states and of all human authority, and even acts of parliament, if they ran counter to this fundamental law,
must be disregarded.
5
History of the Idea of Sovereignty
Roman Polity: Power of making laws was in the populous Romanus. The magistrate, on the other hand, had the power to command
the citizens. Later the emperor had delegated to the magistrate both these powers. Thus arose in the Byzantine period the
conception of a sovereign in whom all the law-making and all the coercive powers of organized political society are concentrated,
and this conception was handed down to the modern world in the law books of Justinian.
Germanic Polity: The Germanic conception was that the king was under God and the law. It conceived that those who wielded
authority should be held to account for the conformity of their acts to that law.
Feudalism: The king during the time of feudalism was charged with the duty of protecting public and social interests, and he wielded
something very like our modern police power. But this power was limited on every side by the maxims of common law and the
bounds set by the law of the land. Naturally the royal power of protecting social interests soon came in conflict with such maxims.
6
An event illustrating this contest between the Courts and the Crown
The Archbishop of Canterbury wanted King James I to have the royal prerogative to adjudicate cases, insisting that the judges were
but the delegates of the king, wherefore the king might do himself, when it seemed best to him, what he left usually to these
delegates. To this Coke answered on behalf of the judges, “that God had endowed his Majesty with excellent science and great
endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life or
inheritance or goods or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of
the law, which law is an art which requires long study and experience before that a man can attain to the cognizance of it…the King
not ought not to be under any man but under God and the law” At this the king was much offended and Coke was eventually
removed.
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In the middle of the 16 century, lawyers began to complain that the common law was being set aside. In place of the magistrate
limited by law and held to walk strictly in the paths fixed by the custom of the realm, men sought to set up a benevolent guardian of
social interests, who should have power to do freely whatever in his judgment protection of those interests might involve; in place
of deliberate judicial tribunals, restrained by formal procedure and deciding according to fixed principles, they turned to offhand
administrative tribunals (Courts of Equity such as the Court of Chancery) in which the relations of individuals with each other and
with the state were adjusted summarily according to the notions for the time being of an administrative officer as to what the
general interest or good conscience demanded, unencumbered by many rules.
What effect did this contest have on the common-law tradition? Its spirit became individualist. It became a doctrine that it was the
function of the common law and of common-law courts to stand between the individual and oppressive action by the state; that the
courts were set up and the law existed to guard individual interests against the encroachments of state and of society.
The Courts Changing Enemies: From Crown to Legislature to Majority

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17 Century: Those who thought of the king as the guardian of social interests and wished to give him arbitrary power, that he might
use it benevolently in the general interest, were enraged to see the sovereign tied down by antiquated legal bonds discovered by
lawyers in such musty and dusty parchments as Magna Carta. To them, the will of the king was the criterion of law and it was the duty
of the courts, whenever the royal will for the time being and for the cause in hand was ascertained, to be governed accordingly, since
the judges were but the king‘s delegates to administer justice.
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18 Century: The center of political gravity had shifted to the legislature. The courts had but to ascertain and give effect to its will no
matter what the terms of the fundamental law.
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19 Century: The center of political gravity had shifted to the majority or more often the plurality of the electorate, voting at a given
election. The judges were but delegates of the people to do justice. Therefore, it was conceived, they were delegates of the majority or
plurality that stood for the whole in wielding general governmental powers. This contest between courts and people was a conflict of
juristic theory with political theory as to what law is, where it comes and where it derives its force.
Law of the Sovereign versus Natural Law
The author predicts that we will be assured that the supremacy of law, established by the common law against Tudor and Stuart is not
to disappear. We may be confident that we shall have, not merely laws, expressions of the popular will for the time being, but
law, an expression of reason applied to the relations of man with man and of man with the state.
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The law of the US and the law of Continental Europe were liberalized and modernized in the 17 and 18 centuries, not by legislation,
not by exercise of the will of any sovereign, but by a juristic doctrine that all legal institutions and all legal rules were to be measured by
reason and that nothing could stand in law that could not maintain itself in reason. So today (essay published in 1921), while absolute
theories of law as a mere expression of the popular will are current in political thinking, a return to juridical idealism is in progress.
Chapter VI: The Philosophy of the Law in the Nineteenth Century
Evolution of Law
Stage 1:
In its beginnings law is a means toward the peacable ordering of society. It stands beside religion and morality as one of the regulative
agencies by which men are restrained and the social interest in general security is protected.
Stage 2: Age of the Strict Law
In this stage, law has prevailed as the regulative agency of society and the state has prevailed as the organ of social control. At this
point, two causes operate to produce a rigid system, namely, fear of arbitrary exercise of the power of state assistance to individual
victims of wrong, and survival of ideas from primitive law when deliberate deviation from sacred texts and settled customs was held
impious and dangerous. Accordingly the chief end sought is certainty. The rules of law are wholly inelastic and inflexible. Also the
law is highly formal. Thus the strict law is indifferent to the moral aspects of conduct.
Stage 3: Age of Liberalization (Age of Equity or Natural Law)
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From Wikipedia: Sir Francis, by authority of King James I, upheld the use of the common injunction and concluded that in the event
of any conflict between the common law and the equity, equity would prevail. Equity's primacy in England was later enshrined in the
Judicature Acts of the 1870s, which also served to fuse the courts of equity and the common law (although emphatically not the
systems themselves) into one unified court system. Once equity became a body of law, rather than an arbitrary exercise of
conscience there was no reason why it needed its own courts.
The watchword of the stage of strict law was certainty. The watchword of this stage is morality or some phrase of ethical import such
as equity and good conscience. The permanent contributions of this stage of legal evolution are the conception of good faith and moral
conduct, to be attained through reason, ethical solution of controversies and enforcement of duties.
Stage 4: Maturity of Law
The endeavor to make law and morals coincide and to reach an ethical solution of each particular controversy gives too wide a scope to
9
judicial discretion so that at first the administration of justice in the stage of equity too personal and too uncertain . This excess of
margin for discretion is corrected by a gradual fixing of rules and consequent stiffening of the legal system. As a result of the stiffening
process, there comes to be a body of law yet liberalized by the conceptions developed by equity or natural law. To insure equality, the
maturity of law again insists strongly upon certainty and in this respect is comparable in many ways to the stage of strict law. To insure
security it insists upon property and contract as fundamental ideas. At the end of the eighteenth century transition from the stage of
10
equity or natural law was complete.
The completion of this rigidifying process, which had been going on for more than a century, coincided with an epoch-making change
in the philosophy of law. The theory of natural law had done its work of liberalization and modernization and had become for the time
an agency of stabilization. With all its appearance of growth, it was actually a period of stability, and in common with the maturity of law
everywhere is comparable to the stage of strict law. This was not so much a period of growth as one of adaption; it was not a creative
period, but instead was a period in which received materials were worked over into better form and were developed into a consistent
legal system.
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Two movements are represented in 18 century juristic thought. First there is purely juristic movement proceeding upon the
conception that law is reason in which the ideas of right and justice are made paramount. In this movement, as we have seen
elsewhere, individual rights and justice as the realization of individual rights were put above state and society as state and
society existed only to protect. Second, there is a legislative movement in which rights are thought of as the product of the
human will, as the outgrowth of a social contract, so that there would be no rights without the social organization and no justice or law
but for the political organization; a movement in which law is thought of as emanating from the sovereign and the ideas of command of
state or of the general will becomes paramount.
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19 Century
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Five types of philosophy of law in the 19 century are of significance:
1. Metaphysical School
 Source of law: The ideal law was found not made. It is found deduction from a metaphysical principle.
 On Law: To Kant, justice meant securing freedom of will to everyone so far as consistent with all other wills. In their
view the end of law was to secure the widest possible liberty.
2. Historical School
 Source of law: The ideal law was found not made. It is found by historical study. The historical jurist denied that law
was a product of conscious or determinate will.
 On Law: Law is the body of rules which determine the bounds within which the activities of each individual are
secured a free opportunity.
 On Legislation: Hence, they doubted the efficacy of legislation, in that it sought to achieve the impossible and to make
what cannot be made. They held that the living organs of law were doctrinal writing and judicial decision, whereby
the life of a people, expressed in the first instance in its traditional rules of law made itself felt in a gradual
development by molding those rules to the conditions of the present.
3. Utilitarians
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This is also one of the reasons behind the conflict between the king (Courts of Equity) and the common-law courts.
10
In the common-law world, equity had crystallized so that the principles of equity were almost as fixed and uniform as the rules of
the common law and bills of rights in America were codifying the natural rights of man.
 The founder of the utilitarians, Jeremy Bentham, espoused that a criterion of the greatest good of the greatest
number possible, of that which serves for the happiness of the greatest numbers should be used as the measure of
the conduct of each. He vacillated between utility in the sense of the greatest happiness of the individual and in the
sense of the greatest happiness of the greatest number. In effect his conception of the end of the law was the same
as that of the metaphysical school – to secure the maximum of abstract individual self-assertion.

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On Legislation: Legislation, except in emergencies and for certain incidental purposes was an evil.
4. Positivists
 The positivists jurists sought to find laws of morals and laws of legal and social evolution analogous to gravitation,
conservation of energy and the like, and they expected to find these laws through observation and experience.
Comte, a positivist philosopher, thought of the universe as governed by mathematical mechanical laws, and hence of
moral and social phenomena as governed.
 On Legislation: The historical school denied any function to the legislator. The positivist economic interpretation
denied all function to the jurist.
5. Mechanical Sociologists
 Like the historical jurist, the mechanical sociologist looked at law in its evolution, in its successive changes, and
sought to related these changes to changes undergone by society itself. The historical jurist found metaphysical laws
behind these changes. The mechanical sociologist substituted physical laws. For all practical purposes the result
was the same.
Chapter VIII: Legal Reason
Let us Recall… ;-)
In the beginnings of law this end was simply a peaceable ordering. In Roman law and the Middle ages it was the maintenance of the
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social status quo. From the 17 century until our own day it has been the promotion of a maximum individual self-assertion.
A New Stage of Development: The Socialization of Law
This stemmed from the problem that while individual claims and wants and desires are infinite, the material means of satisfying them
are finite.
The author then gives several examples of the changes in the way we approach law:
1. Rise of limitations upon freedom of contract: A mining company paid wages in orders of a company store. The legislature
forbade this, and the question was whether the statute forbidding it and enacting that persons employing more than a certain
number of employees should pay wages in cash was an arbitrary interference with free contract. Nonetheless, it is no
infringement of the human dignity and no considerable interference with the full human life of the operator to say to him that he
shall pay wages only in cash, while only by some compromise of conflicting claims which imposes such a limitation may we
secure the human dignity of the employees and enable them to live human lives in a civilized society.
2. Imposition of limitations upon the power of an owner to dispose property: A husband earns one hundred dollars in wages and
is about to assign this product of his toil to a loan shark. The legislature steps in and says to him, ―You shall not exercise this
incident of your ownership of this claim for wages unless your wife is willing to join in this assignment.‖ The husband‘s claim is
to be subsumed under a social interest in the security of acquisitions, the wife‘s under a social interest in the security of
domestic institutions, the chiefest of social institutions.
11
The historical school said legislation was an evil because it attempted to do what could not be done, namely to make law
consciously. The utilitarians said it was evil because that government best that left men most free to work out their own happiness.
Legal Reason
 The process of judicial lawmaking consisted in development of the materials of the common-law tradition and of the new premises
provided – the ―artificial reason and judgment of the law‖
 Judicial activity must be directed consciously or unconsciously to some end. In the beginnings of law this end was simply a
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peaceable ordering. In Roman law and in the Middle Ages it was the maintenance of the social status quo. From the 17 century
until our own day it has been the promotion of a maximum of individual self-assertion.

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What does the law stand for? In contrast with the 19 century, now there is an age of socialization of law as it appears to put the
emphasis upon social interests; upon the demands or claims or desires involved in social life rather than upon the qualities of the
abstract man in vacuo or upon the freedom of will of the isolated individual.
 Let us say that the change consists in thinking not of an abstract harmonizing of human wills but of a concrete securing or realizing
of human interests.
 We may think of the task of the legal order as one of precluding friction and eliminating waste; as one of the conserving the goods
of existence in order to make them go as far as possible, and of precluding friction and eliminating waste in the human use and
enjoyment of them, so that where each may not have all that he claims, he may at least have all that is possible. Put in this way,
we are seeking to secure as much of human claims and desires – that is as much of the whole scheme of interests – as possible,
with the least sacrifice of such interests.

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8 phenomena in American law:
o Growth of limitations on the use of property, of limitations on exercise of the incidents of ownership:
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 19 century – simply one of the right of the owner and of the right of his neighbour. For the end of law was taken
to be a maximum of self-assertion by each, limited only by the possibility of a life self-assertion by all.
 Now – there is a social interest in the security of acquisitions, on which our economic order rests, and a social
interest in the individual life. But that security of acquisitions is satisfied by use of property for the satisfaction of
wants of the owner which are consistent with social life; or at least it is not seriously impaired by so limiting it in
order to give effect to other wants which are consistent with social life.
 Hence the social interest does not extend to exercise of individual faculties for anti-social purposes of gratifying
malice.
o The rise of limitations upon freedom of contract:
 In 1886, a mining company paid wages in orders on a company store. The legislature forbade this, and the
question was whether the statue forbidding it and enacting that persons employing more than a certain number
of employees should pay wages in cash was an arbitrary interference with free contract. If we took the abstract
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individualism that was 19 century: The legislative restriction does not promote a maximum of free individual
self-assertion but on the contrary restrains such self-assertion and does not do this in order that others may have
a like freedom of self-assertion.
 But suppose we think in terms of the interest of society in the individual moral and social life, the interest of
society in the human life of the individuals therein. It is no infringement of the human dignity and no considerable
interference with the full human life of the operator to say to him that he shall pay wages only in cash, while only
by some compromise of conflicting claims which imposes such a limitation may we secure the human dignity of
the employees and enable them to live human lives in a civilized society.
 William James, as a principle of ethical philosophy: ―since all demands conjointly cannot be satisfied in this poor
world,‖ our aim should be ―to satisfy as many as we can with the least sacrifice of other demands.‖
 Tried by a social-utilitarian criterion of securing as many interests or as much of interest as we may with the least
sacrifice of other interests, the restriction upon free contract is justified, and the courts of today have come to that
conclusion.
o Imposition of limitations upon the power of an owner to dispose of property.
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 The 19 century would have thought at once of an abstract free man of full age and sound mind, possessed of a
claim for wages as part of his substance.
 Looking at the standpoint of the social interest, individual interests must be subsumed under the security of
domestic institutions, the chiefest of social institutions. The infringement of the general security of acquisitions
involved in such a restriction is negligible.
o Limitations upon the power of creditors to exact satisfaction which have become so common and were denounced so
extravagantly by courts when first they were enacted
 Certain recent changes in judicial and legislative attitude:
o To impose liability in the absence of fault – if we think on the one hand of the security of acquisitions and the
individual life of the owner, with its incident of free exercise of his faculties by owning a car, and on the other hand of
the general security of life and limb, and ask what rule will secure the most with the least sacrifice.
o Change of res communes and res nullius into res publicae
 Res combomunes – incapable of ownership by any one and their use was said to be common to all, we had
come to think rather of individual rights of using these things and of the persons in whom these rights
resided.
 Res nullius – no one owned them for the time being, but anyone who took possession of them intending to
make them his own might become owner by so doing
 Res publicae – owned by the state in trust for the people
 The jurisprudence of today catalogues or inventories individual claims, individual wants, individual desires, as did the
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jurisprudence of the 19 century:
o However, the former doesn‘t stop there, it goes to ask: What claims, what demands are involved in the existence of
the society in which these individual demands are put forward; how far may these individual demands be put in terms
of those social interest or identified with them, and when so subsumed under social interests, in so far as they may be
so treated, what will give the fullest effect to those social interests with the least sacrifice?
o Rudolf von Jhering – first to insist the interests which the legal order secures rather than the legal rights by which it
secures them.
 Law begins by granting remedies; by allowing actions. In time we generalize from these actions and perceive rights behind
them.

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In the 19 century, all theories of law were individualist. The purpose of law was held to be a harmonizing of
individual wills in such a way as to leave to each the greatest possible scope for free action.
 When Jhering came in, there came a social theory of law. Jhering taught that the law was something created by
society, through which the individual found a means of securing his interests, so far as society recognized them
 Jhering‘s work is of enduring value for legal science. The older juristic theory of law as a means to individual liberty of law as a
means to individual liberty and of laws as limitations upon individual wills to secure individual liberty, divorced the jurist from
the actual life of society.
 As of the end of the last century, American judges insisted upon a legal theory of equality of rights and liberty of contract in the
face of notorious social and economic facts. On the other hand, the conception of law as a means towards social ends, the
doctrine that law exists to secure interests, social, public and individual, requires the jurist to keept in touch with life.
 The function of legal history comes to be one of illustrating how rules and principles have met concrete situations in
the past and of enabling us to judge how we may deal with such situations in the present rather than one of
furnishing self-sufficient premises from which rules are to be obtained by rigid deduction.
 Three features of social utilitarianism that are significant for our task of shaping the materials of the common-law
tradition to meet the purposes of today and of tomorrow:
o the light it throws on legal history
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 19 century focused on individualism – this is not the essence of law.
 In certain times, even then, individual rights have been infringed for the good of the society.
o from a social-utilitarian standpoint the history of law is a record of continually wider recognition and more
efficacious securing of social interests
 Hippodamus of Miletus, 3-fold classification of law – general security is the only interest taken into account
and only the simplest phases of that interest are redarded:
1. Insult
2. Injury
3. Homicide
 Institutes of Justinian – general security conceived more widely, the security of acquisitions is recognized as
such, and a social interest in the general morals is added:
1. To live honourably
2. Not to injure another
3. To give to each his own
 Bacon, the general security is conceived narrowly in terms of individual substance and of individual
personality in the two simple forms of life and reputation:
1. To secure us in property
2. To secure us in life
3. To secure us in our reputations
 Bentham
1. To provide substinence
2. To maintain security
3. To promote abundance
4. To favour equality
 If we look only at social interests, we may see that the legal order endeavours to give effect to at least 6
groups of claims or demands involved in the existence of civilized society:
1. The general security – the claim or want of civilized society to be secure from those acts or courses
of conduct that threaten its existence. This includes
o Peace and order, the first interest to receive legal recognition
o The general health ,
o The security of acquisitions
o The security of transactions
2. Security of social institutions – the claim or want of civilized society to be secure from those acts or
courses of conduct which threaten or impede the functioning of its fundamental institutions,
domestic, religious, and political
3. Conservation of social resources – the claim or want of civilized society that the natural media of
civilized human existence and means of satisfying human wants in such a society shall not be
wasted and shall be used and enjoyed in a manner consistent with the widest and most beneficial
application of them to human purposes. In the crowded world of today the law is constantly taking
account of it and the jus abutendi as an incident of ownership is becoming obsolete
4. General morals – the claim or want of civilized society to be secure against those acts and courses
of conduct which run counter to the moral sentiment of the general body of those who live therein
for the time being.
5. Interest in general progress – the claim or want of civilized society to be secure against those acts
and courses of conduct that interfere with economic, political and cultural progress and the claim
that so far as possible individual conduct to be so shaped as to conduce to these forms of
progress.
6. Social interest in the individual human life – the claim or want of civilized society that each
individual therein be able to live a human life according to the standards of the society, and to be
secure against those acts and courses of conduct which interfere with the possibility of each
individual‘s living such a life.
o the legal reason of today looks at social interests not in terms of abstract claims of abstract human beings.
 In the past century law was studied from within. The jurists today are studying it from without.
 Where the last century prepared for legislation by study of other legislation analytically, they insist on
sociological study in connection with legal study in preparation for legislation.
o In a transition from the mechanical lawmaking of the past century to rational lawmaking, not the least problem is to
discover a rational mode of advising the court of facts of which it is supposed to take judicial notice.
Majul, The political and Constitutional Ideas of the Philippine Revolution
Ch III, “On the Origins, Necessity and Functions of Government
I. Function of the Institution of Authority or Government in Maintaining Freedom and Producing Order in Society
Mabini
 Society was a system of relations between various individuals who originally associated in order to satisfy their multiply needs
by the mutual exchange of their individual products
 His theory may be interpreted as a technique to illustrate that Spain used both force and guile in attempting to establish her
sovereignty over the Philippines and that the US was following Spain‘s footsteps
 The right to the products of one‘s labor was a natural right; therefore the loss of this right involved a loss of freedom
 Mabini argued for the necessity of an authority in the person of an executive - Election into power of a man who is believed by
society to be the one most able to direct them and who will be charge with the protection of freedom…
 He suggested an agency that would serve not only to check a possible tyranny but also as a representative of the people, see
to it that the power of the elected leader is used in accordance with the decides of the people
 Mabini laid down a theoretical basis for the distinction of at least two powers of government: the executive and the legislative.
The executive was always a person with power derived from the people. The legislative organ was composed of a group of
persons whose function was to see to it that this power was used in accordance with the mandate of the people
 Notion of a judiciary as a power that determined the kind of punishment for evil in society
 The purpose of Authority was both to order the community by the use of coercion in the elimination of disruptive elements and
to construct a better planned society
Jacinto
 Necessity of authority or government in order that society achieves what it believes to be for its good
 He always believed in the necessity of government to serve the aims of society
 He has a notion of a ―congress‖ elected by the people which, besides being a law-making body, would also serve as a form of
intermediary between the people and the governor
 Government – institution by which a group of men were charged with the political administration of society
II. Welfare of the People as an aim of government
 Rizal, Jacinto and Mabini all asserted that man had a certain intrinsic value and possessed certain intellectual and moral
capacities
 Freedom was the necessary condition for this uninterrupted development. It is a natural right
 State viewed as a society where there was a recognition of certain natural rights among men, and where a government existed
whose function was to protect those rights
 Welfare of people equivalent to the satisfaction of the desires of a people, in order to fulfill the one and to satisfy the other –
satisfaction of the aspirations of the people
A. Aspirations during the propaganda period
1. Rizal
 Asked Spain to recognize that the right to life is inherent in every individual like the right to liberty and light
 His demand that government should allow man his personal dignity meant in effect that he should never be used as a tool by
the colonial powers for their own selfish interests
 The absence of freedom was identical with a state of tyranny
 In Noli:
o The Spanish government had to provide for greater personal security for the people and develop a better system for
the administration of justice
o The abuses and power of the armed forces had to be curtailed
o Government was asked to better the economic and educational status of the people
o Priests were to be given better opportunities to hold parishes from which the friars were to be excluded
 Philippines should be represented in the Spanish Cortes and the administration of the country be revamped
 Secularization of parishes encouragement of primary education without any intervention on the part of the friars
 Freedom of press and freedom of religion
 Rizal believed that governments are established for the welfare of the people. To this purpose they have to follow the
suggestions of the citizens, who are the ones best qualified to understand their own needs
 He did not believe that there should be direct consultation with the masses, but rather with the educated elite
2. Del Pilar
 To entreat from Spain a condition in the Philippines where there are rights guaranteeing the security of the individual and the
recognition that men are possessed of the element of responsibility and where one‘s conscience is inviolable
 All civil and religious institutions be subject to the prescriptions of the law and to the demands of Morality
3. Lopez-Jaena
 With the granting of more political rights for Filipinos, the Philippines would become a progressive and more useful to Spain
 He demanded was the liberty of conscience and association instead of religious communities that humiliated the spirit
 Security of the individual meant the absence of arbitrary arrest and protection from the abuses of Guardia Civil
 There must be an identity between the interests of the Spanish government in the Philippines with those of the Filipino people,
and that the failure to satisfy these aspirations was the actual cause of antagonism between government and people
B. Aspirations of the Katipunan
1. Isabelo de los Reyes
 Katipunan had three objectives: political social and moral

o Separation from Spain if political rights were not granted
o Encourage mutual help among the members
o Work for the greater education of the people and the lessening of religious fanaticism in the country
 Katipunan wished to perfect the race by a good and vigorous education and by the possession of a good political institution
 Since the Katipunan began as a movement where the majority of the members belonged to the uneducated masses, they
must have looked toward the intellectual leadership of the propaganda
 Designed for an immigiate end: to ensure a unity among Filipinos within a highly secretive organization in order to assure
eventual emancipation from Spain
2. Jacinto
 Contented himself with stating that the object of the government is the people and the security and welfare of the people must
be the aim of all its acts and laws
C. Hong Kong Junta
 Composed of exiled Filipinos and sympathizers

 Freedoms of thought, press, association and religion
 Right to property was also to be recognized
 Guardia Civil was to be suppressed
 The people were also to participate to a greater extent in the election of government officials and were to be consulted on
taxes
 Church was to be under the control of Filipino hierarchy
D. Mabini‘s concept of the functions of government
1. Personal security and the greatest number of liberties

2. the maximum satisfaction of economic wants
3. best possible education
 Proposed constitutional program

o Bill of rights and educational provisions demonstrate an attempt to put into practice some of the theoretical ideas as
to the three functions
o Provided for protection of the individual from arbitrary arrest and unlawful detention
o Capital punishment for civil cases were not allowed
o Freedom of thought, press, association, religion, choice of profession
o Petition the highest governmental authorities for redress
 Education was responsibility of the state. Free elementary education
Ch IV, “On the Obedience to Law”
 Government was expected to work directly to make men good. Since men by nature possessed a moral personality,
government should not impede the development of this personality.
 It was clear to both Jacinto and Mabini that without law neither morality nor order could exist in society.
1. The Ideas of Jacinto and Mabini Concerning ―Obedience to Law‖.
 Jacinto wrote that law was to be obeyed insofar as it was an expression of the popular will and not simply the will of those
individual men in control of administrative functions—clearly not the laws they were living in under the Spanish regime.
 Mabini considered the possibility that government might not live up to the purpose for which it had been instituted. In such a
case, when laws might not be just, and government may be abusing its power, the interests of government may become
opposed to those of the members of society.
 Both assert that ultimately all governmental power originated from the people. Jacinto made the justification that all forces of
production reside in the people.
 Rizal, on the other hand, said that any government whose power did not come from the people was a government imposing
itself upon the people.
 Mabini said that as regards taxes, all taxes imposed without the consent (or intervention) of the people who have to pay them,
are unjust.
 Mabini maintained that one of the functions of government was to balance the different interests that may be found n the
various institutions within the State. This fear was clearly rooted on two experiences in Filipino History: 1) the Spanish
government either sided with or took the part of the friars in conflicts with the people; and 2) the existence of a privileged
group, the cacique class in Filipino society.
2. Attitude toward the Cacique
 Cacique= the powerful class in society that were the closest to the Spanish regime and held the forces of production (land and
capital).
 During the revolution, the cacique class was believed to have been antagonistic towards the masses; some writers
erroneously thought they were disappearing—a case of wishful thinking.
 However, by virtue of their economic position and social pre-eminence, they were needed by the Revolutionary Government to
provide help in the resistance against the American army.
 Though their patriotism was unquestionable, they clearly sought economic and political power. The Malolos Constitution was
designed to put the country under the control of the ―intellectual oligarchy‖.
3. Notion of a ―Moral Government‖
 The demand that government should express the popular will and have the consent of the governed, and should, therefore,
never pervert the purposes for which it was established for the benefit of a privileged class in society.
 Another demand is that government had to obey the laws and not act on deceit but do everything it had promised the people.
 Success in government was to a large extent based on its adherence or adjustment to the tenets of natural law.
 It may be suggested that to Mabini, a moral government essentially meant a government guided by natural law.
4. Mabini‘s Second Notion of Freedom
 In a civil society, freedom consisted in obeying the laws, provided that government was legitimate in the sense that it
expressed the will of the people, as opposed to freedom in a state of society without government, where freedom was doing
what is right. In obeying laws reflecting the will of the people, it was obedience to oneself.
 Whereas Mabini asserted that obedience to authority was obedience to oneself, and Jacinto asserted that obedience to
authority was obedience to the will of the people, in the final analysis they both expressed the same principle. This is held: the
obedience to the will of the people is held to be equivalent to obedience to oneself or one‘s reason.
5. Attempts to Let the People Have active participation n Government. Basis for the Legitimacy of Aguinaldo‘s Authority.
The electoral system aimed at the creation of a Revolutionary Congress that could serve as a visible sanction for the government.
Mabini: the strength of a democracy lay at the municipal level.
 Elections were held this way: communities in towns were gathered and made to elect a chief (jefe de pueblo) and the
headman of each barrio, then three others: 1) office of police and internal order; 2) justice and civil registry; and 3) taxes and
property. These officials became the popular assembly. The chiefs then consulted their popular assemblies and then cast
votes for the provincial chief (jefe de provincia) and three councilors who held the same functions of the municipal councilors.
The chiefs then elected Representatives for the Revolutionary Congress.
 Aguinaldo, however, was not elected by the Revolutionary Congress. He was merely recognized as the leader of the
Katipunan at the Tejeros Convention, which effectively transformed the Katipunan into a revolutionary government. Since then,
no one seriously questioned his leadership.
 The need for a single individual to take the role of leadership may reflect ingrained habits of the Filipino people due to their
exposure to only one form of government, that is, the Spanish government.
 Presumably, the majority of the inhabitants of the areas governed by the revolutionary government supported said
government, suggesting that they did give their consent to a government which they always considered their own.
6. Evaluation of Mabini‘s System for Local Government
 It gave the people a relatively greater amount of participation in government that they could ever have dreamt of during the
Spanish regime.
 It was precisely to prevent the voters from being controlled by a few of the leading citizens in a town that Mabini and other
dedicated men undertook to educate their countrymen along political lines by mean of articles, pamphlets, and oratory.
 The government used the method of putting electoral commissioners in towns during elections to prevent caciques from
manipulating results. However, these commissioners were military men and were most likely loyal to Aguinaldo and his
regime.
 Filipinos for the first time had come to feel that they had their own government, and they could run to it for redress on any
wrong done to them.
 Mabini‘s electoral system may be viewed as an attempt to establish a government that had the consent of the people. The
major justification of revolution was based on the absence of this morality in government.
Ch VIII, “The Malolos Congress: Legislative Supremacy v. Temporary Dictatorship
Introduction
 09.15.1898: Revolutionary Congress was inaugurated in Malolos, Bulacan

 …after ratification of independence of the Philippines on 06.12.1898 Congress immediately drafted a constitution for a future
republican system of government
 MABINI: Congress had no power to draft a constitution – Congress consultative body, not Constituting body
 CALDERON: Congress had power to draft and promulgate a constitution
 …Congress was not satisfied in remaining a mere consultative body – Aguinaldo led to recognize that Congress had the
power of promulgating the fundamental laws of the land
 …Calderon‘s draft was accepted and approved, except for amended on Church and State
 …Mabini devised amendments but was rejected almost in toto
Why Compromise? Adopt “temporary provisions”
 to prevent serious split in Congress

 necessity for the factions to join in fear of an outbreak of hostilities with US troops
 01.21.1899: Malolos Consti officially announced
 Issue in approaches to structure of Philippine Government:
 Constitutionalists – Calderon
 Absolutists – Mabini
 Issue after adoption of Calderon’s draft: WON the provisions of Consti were adequate to secure gains of the Revolution
 Calderon’s Support of a Consti; Strong Legislative Power
Why republican charter?
- modern and progressive constitution was needed to achieve recognition of the independence of the Philippines by
other nation
- Social system
- Political traditions of the Filipinos
 Very Powerful Legislature: salient feature in the Malolos Consti
 *PRESIDENT: mere symbol/figurehead
- Directly responsible to Congress: All official acts had to be countersigned by a secretary of the cabinet
 -elected by the Congress, which had power to impeach him
 -cannot declare convocation, suspension, and dissolution of Congress except in concurrence with Congress or Permanent
Commission
 *JUDICIARY: controlled by congress
 -Congress appointed SC Chief Justice and Procurator-General = had power to try them in cases of high crimes
 *PERMANENT COMMITTEE: (Title VI, Arts 54-55)
 -composed of 7 members of the congress, elected by them
 -during recess: assumed all the powers of the Congress + adopt emergency measures
 -served as Court of Justice: can try President of the Republic and other high officials believed to have committed high treason
(Title V, Art. 44) – intended to watch the actions of high government officials (President, SC Chief Justice, cabinet/council of
government)
 *CABINET: directly responsible to Congress (title IX, Art. 75)
Why Calderon Favored a Strong Legislature: It was designed to serve as a counter force to the growing strength of the
military element in the Philippines.
 …Calderon was convinced that bulk of the military forces were ignorant
 …many persons who belonged to the humbler strata of society were members of Katipunan
 …Calderon preferred that the intelligent congress dominate the ignorant military – did not want to see the military predominate
in the affairs of the country
 …Aguinaldo not from ilustrado group, and would have to remain the chief executive of the Philippines for an indefinite time – if
not then a strong congress v. weak exec might have not existed
 ~Mabini also feared military might get out of hand so he wanted to vest greater powers on Aguinaldo, being supreme military
chief, so he would be in a better position to curb the abuses of his subordinates and followers – and there would also be an
ilustrado (like himself) guiding and advising Aguinaldo
 ~so both Calderon and Mabini feared the military
 *Why Calderon might have believed in control of “intellectual oligarchy”: Rizal‘s tradition that only the ilustrados knew
what was good and beneficial for the people; reforms to be beneficial had to come “from above” for those “from below” were
“irregular and uncertain”
 e.g. when President dies or resigns, the SC Chief Justice would temporarily assume presidency until election of new President
 *Why unicameral system of legislature:
 there were not enough men in the country competent to fill both houses
 there were no conflicting interests in the country to justify existence of more than one house (united in desire
for independence)
– Calderon did not think that at the time of peace there would possibly be conflicts among the
ilustrados ruling the country
 *ilustrados have different economic backgrounds – conflicts among them could arise
 *many of them belonged to the cacique class – conflicts with peasants would be inevitable
 Mabini’s Opposition to the Consti, Defense of Strong Chief Executive
 *technical ground: Congress is just a consultative body, not a constituting assembly
 …Revolutionary Congress created to secure a greater popular support for Aguinaldo and to advise and help him in the
prosecution of the Revolution
 …formation served primarily as a visible sanction for Aguinaldo‘s leadership
 …Mabini was the author of the Decree defining the functions of the Revolutionary Congress!!!
 *he opposed Congress‘ creation of COnsti because proposed constitution aimed to make Congress supreme in all matters of
government and reduce function of Aguinaldo as mere figurehead
 *country was unprepared for proposed constitution because of the possible outbreak of hostilities with American troops which
demanded concentration of three divisions of power in the same hands
 *When Mabini recognized that Congress would soon promulgate the Constitution, he tried to convince Aguinaldo to use his
powers as President of Revolutionary Government – Art 24 of Decree of 06.23.1989 (which also defined functions of the
revolutionary congress): President could explain to congress why certain acts of Congress should not be carried out, even
veto them.
 …he even said that his secretaries (including Mabini) would resign because if the Congress promulgates the COnsti, it would
censure the secretaries and Congress would be more powerful than Aguinaldo
 *in time of war, delays accompanying passing of law by an unwieldy assembly could not be afforded: fast and efficient
promulgation and execution of laws is needed!
 >Strengthening the executive: so that abuses of the civilian by the military might be avoided or curbed
 *Mabini believed that ―Democracy should be based on a municipal foundation‖ (provincial government): so even if he
wanted to increase the power of the central government, he advised council of government that some amount of power should
be allowed to the provincial councils in order that the abuses to which the armed forces gives rise should in some manner be
contained.
 *during start of war with US and evidence of abuses of civilian population by Filipino soldiers existed, he urged for a military
dictatorship to repress the abuses of the military (not to subjugate the town people) * LEADER CURB ABUSES OF SUBORDINATES
 …PROBLEM: what would prevent the supreme chief from abusing his own powers? Mabini: Public Opinion is the answer!
 Critical Public Opinion: this opinion could serve as a moderating influence on the actions of the dictator, but this would ONLY
BE EXPECTED FROM THE ILUSTRADOS and not from the MASSES WHO WERE IMBUED WITH A CULT OF LEADERSHIP that they avoid
questioning the actions of their leaders – i.e. Aguinaldo
 Critique of Mabini on…
 Separation of Church and State: could alienate some of the supporters
 Bill of Rights: could not be fully maintained in practice since country under predominance of military element
 *Mabini qualified “absolutist” for arguing for a strong politico-military dictatorship only as a temporary expediency,
actually a ―Constitutionalist‖ because he was a firm believer of the constitution
 ...disagreed with the adoption of a constitution “static” or permanent in character since /it was a time of revolution fraught with
unpredictable changes/ and therefore viable constitution should be adopted to accommodate to the conditions of the times and
place
 …should prepare the people for a perfect constitution which should be applied at the advent of peace and not at the time of
war
 *2 aspects/parts of the Constitution:
- Fundamental: certain fundamental principles that referred to individual rights (Bill of Rights?) and moral aims of a
revolution (independence, republican principles) – irrepealable
- Accessory: administrative technique that would serve in securing and maintaining of the moral aims of the revolution
and individual rights – MUST CHANGE ACCORDING TO THE CONDITIONS AND NEEDS OF TIME AND CIRCUMSTANCE
Proposed Amendments of Mabini
 11.29.1898: Congress approved the Consti and was sent to Aguinaldo for approval
 …Mabini urged Aguinaldo not to sign it and INTRODUCED 12 PROPOSED AMENDMENTS
 PRESIDENT could ASSUME LEGISLATIVE POWERS when Congress not in session
 President has a second VETO POWER (exclusive to the president) on any act of Congress if either internal or external security of
the country was endangered
 PRESIDENT COULD DISSOLVE THE CONGRESS without consent of the latter when (a)congress hostile towards council of government
and (b)the circumstances of the nation were grave
 CURTAIL POWERS OF THE PERMANENT COMMISSION in favor of the council of government
 limited Permanent commission to PROTECTION OF THE CONSTI WHILE CONGRESS NOT IN SESSION
 Permanent Commission could CALL CONGRESS AS COURT OF JUSTICE
 Permanent Commission to CARRY OUT FUNCTIONS ASSIGNED TO IT BY CONGRESS
 SUSPENSION OF SEPARATION OF CHURCH AND STATE
 Emphasis that all amendments were PROVISIONAL AND TRANSITORY in character
Dictamen of Calderon
 -authored by Calderon, contains the specific objections of the Committee

 -asserted that proposed amendments objectionable on 2 GENERAL GROUNDS:
- strengthening Executive in the person of the President resulted in corresponding weakening of the
legislative power > despotism > Philippines would be subject to an autocrat and a tyrant
 …individual/ dynasty could aggrandize a people, aggrandizement temporary, exist only during lifetime of individual

th
*on Second Veto Power (7 amendment): extensive and omnipotent
 …labors of Congress would result into sterility
 *on Power vested on the government to arrest any member of Congress believed to have acted against the security of the
th
State (4 Amendment): the president could easily declare the Congress as conspirators vs. the state
- theoretical grounds
 On veto powers: violated principle and fundamental basis of constitutionalism (division and absolute separation of attributes of
powers of society)
 …division of powers not checks and balances: system for the specialization of definite functions – based on different origins of
powers
 …THE CONGRESS (whose members were elected by the people and thus represent the people) SHOULD BE MORE POWERFUL THAN
THE EXECUTIVE OR JUDICIARY (elected by Congress, did not have direct popular sanction)
 ~Mabini‘s General Theory similar to Calderon‘s: predominance of legislative power of government over executive and judiciary
for peacetime, strong executive temporary for wartime (1. supremacy of legislative over exec, judiciary – but not hierarchichal;
2. division of powers based on origin and electoral responsibility)
 ...but Mabini’s group was strong: led congress to add “Temporary Articles” to the proposed COnsti (compromise
between Calderon and Mabini groups)
 Arts. 99 and 101 strengthened executive power
 Art. 99: Provided in part that /during the struggle for independence /the government could issue decrees/ on questions or
difficulties not provided by law.// decrees communicated to Permanent Commission or Congress
 Art 101: sort of veto power of President (can return law to congress, congress would not act on it for 1 year)

rd
Art 100: temporary suspension of separation of Church and State (3 proposed amendment of Mabini)
General Support of a Strong Government
 *Filipinos looked forward to government to make the good life possible for them
 *Filipinos used to strong government:
o nature of highly centralized form of Spanish government
o existence of normally strong Gov-Gen directly representing the Spanish King
 …Aguinaldo‘s dictatorship, 06.23.1898 decree consistent with this
 …even if local and provincial elections provided, central government could intervene
 Prevent provincial and municipal corporations from exceeding their powers
 Determine taxing powers
 Intervention: Schurman commission describes it as of Spanish methods of government, Filipinos ―conditioned‖ to
government‘s intervention in their affairs
 …desire for strong government: government w/c needed great powers to give the people benefits they never had before
 *fear/general distrust of a strong chief executive among Filipinos: evident in the efforts of the Committee on Constitution to
have a strong legislature – FEAR OF ILUSTRADOS OF THE LEADERSHIP OF THE MASSES
 ~Calderon and Mabini agreed on:
 a STRONG CENTRAL GOVERNMENT
 ELIMINATION OF DEPOTISM
 *Trend towards strong centralized government:
 desire to have a national Church controlled by government at some extent
 dissolution by Aguinaldo of Katipunan and declaring it illegal, on pretext that country had been converted into a huge
Katipunan so the latter was not a secret society anymore
The Bill of Rights of the Malolos COnstitution
 -most elaborate document expressing deepest aspirations of the Filipinos

 -testimony to the principle: Government was to maintain freedom in a society where law prevailed
 -reveals why revolution was launched
 -30% of Consti text
 *Arts. 7, 8, 9: no person subject to ARBIRTRARY ARREST AND DETENTION, procedures for arrest and detention required.
 *Art. 14: no Filipino could be prosecuted/sentenced except by a competent judge/tribunal and in accordance with law ( DUE
PROCESS CLAUSE?)
 Art. 15: person detained/imprisoned WITHOUT JUDICIAL PROCEDURES should be DISCHARGED on his petition or of any other
Filipino
 Art. 10: right of domicile
 Art. 13: case of forcible entry > right to demand responsibilities which ensue
 Art. 11: no person compelled to change his residence except by law
 Art. 25: freedom to change residence
 Art. 30: prohibits government to banish Filipino away from country
 ~demonstrates lawmakers at Malolos conditioned by experiences of the past
 Art 12: freedom of correspondence
 Art 13: detention/search of correspondence to be done in accordance to law and should be justified
 Art. 16 and 17: no person could be deprived of property except by virtue of judicial sentence
 Art 18: no taxes imposed upon people unless decided upon by legally authorized popular corporations/congress
 Art 19: Freedom to exercise political and civil rights
 Art. 20: freedom of speech, communication and association
 Art 5: freedom of religious worship
 Art 28: did not limit rights to the ones written in the consti
 Art 30 Arts 7,8,9,10,11 and 20 may be suspended (a. in accordance with law; b. temporary suspension; c. based on a reason
involving the security of state)
 Right to petition cannot be suspended: reflected attitude of hope among Filipinos that a paternalistic system, government was
a positive agent to redress grievances
Actual Exercise of the Rights during the revolution
 *Hard to judge merits of Bill of Rights because only within a month after it went into effect, war broke out
 *Republic did not survive for more than 10 months
 *Bill of Rights of Malolos Consti made explicit some of the ―rights‖ already exercised during days of the Revolutionary
Government (redress, press freedom)
 *Bill of rights taken very seriously by the revolutionary leaders for it is the only thing they could offer the Filipino people for
their support for the government’s preservation
The role of the “ilustrado” in the revolution
 *Malolos Consti showed what most educated segment of the population wanted as the form of their own government
 *Educated segment gained control of Congress and command greater say in governmental affairs
 *Aguinaldo had loyalty of the bulk of the revolutionary soldiers and was relatively successful in the early days of the revolution
against Spain
 …the educated class were afraid of the upheaval but when they saw that it was gaining success, they joined the revolution:
motivated by (a) patriotic principles, (b) ties of consanguinity
 *Educated men had no intention of being governed by the leaders of the masses and was in fact aiming to grab the leadership
of the revolution (oportunista!) but Filipinos put high premium on education so the masses included them in their ranks
 *Aguinaldo realized that in order for him to succeed in the revolution, and consequently in running the government, he needs
the support of the educated class
 *members of the Malolos Congress may be presumed to be sincere in their republican and constitutional programs for they
were products of the liberal ideas
 *However, even if ilustrados instilled republican and constitutional programs in consti, masses find it difficult to understand the
new concepts fielded to them:
 Democracy
 Republic – no idea what it is to be a citizen of a republic
 *The revolution begun with the masses, however the ilustrados took away the leadership away from them (with Mabini as
exception)
Lynch, “The Legal Bases of Philippine Sovereignty”, 62 Phil. L.J. 279 (1987)
THE SPANISH FOUNDATION
Declaration of Alexander VI
The Declaration of Alexander VI became the basis for the Treaty of Tordesillas which sliced the world in two. The Spanish zone of
exploration was west of the Atlantic line, the Portuguese zone was east.
Nonetheless, it was officially interpreted that Spaniards may claim lands beyond the treaty line provided they were discovered by sailing
west.
Magellan and the Islas de San Lazaro
Magellan was an experienced Portuguese mariner who secured the patronage of the Spanish king, Charles I, for a daring effort to
reach the Moluccas from the west by sailing around the southern tip of the New World. However, he strangely did not veer west in
search of the Moluccas, rather he changed course when he reached the latitude of Luzon and headed straight for the Philippines and
on March 17, 1521, reached the shores of Samar island. Magellan and his men referred to the still relatively unexplored archipelago as
the Islas de San Lazaro.
Sovereignty and the Alexandrian Declaration
It was interpreted by King Philip that the papal bulls (Alexandrian Declarations) could not have entailed any grant of political dominion,
let alone ownership, over inhabited territories. He dispatched Legazpi and ordered him to pacify the Philippine archipelago bloodlessly.
Philip also ordered that indigenes be informed that there were no designs on their persons or property.
The Manila Synod of 1582
The first phase of the Spanish occupation, from the arrival of Legazpi until 1581, was notable for the harsh treatment inflicted by
soldiers and colonial officials on indigenous peoples, and the complaints by the friars ensued. The most serious abuses were caused
by encomenderos.
The second phase of the occupation was heralded by the arrival of the first Bishop of Manila. They emphasized that Castilian
sovereignty in the Indies flowed from the commitment to preach the Gospel to the infidels and to provide military protection of converts
against their pagan neighbours. The synod participants were willing to justify the Spanish usurpation on the basis of the indegene‘s
supposed cultural inferiority.
Sovereignty and Consent
A plebiscite was held where the precocious native collaborators ―voluntarily‖ and ―solemnly‖ chose the king as their sovereign and
natural lord. The plebiscite participants, of course, did not speak for everyone. In many parts of the islands, resistance to colonial
imposition was widespread, enduring and occasionally successful. Therefore, Spain technically never acquired full sovereignty over
the entire archipelago. Conversely, regions inhabited by unconsenting peoples retained their sovereign rights. Spanish sovereignty
over the archipelago was ceded to the US in 1898. It was simply assumed that the Spanish cession was valid and that it applied to all
parts of the colony.
Colonial Preludes
On April 25, 1898, the US government declared war against Spain. Ostensibly a response to Spanish abuses being inflicted on the
Cuban people, the declaration of war soon spurred developments in the Philippine colony.
The Treaty of Paris
The Church wanted to ensure that any transfer of sovereignty over the Philippines would be by purchase and not conquest. Purchase
of sovereignty would be accompanied by an implied duty to respect property rights which had been recognized and documented by
previous sovereign. Purchase, therefore, would be better safeguard legal titles to the friar estates and other church holdings. The
Philippines was bought from Spain for US $20M.
The Treaty of Paris went no further than to give its consent to the acquisition of the Philippines. This action did not necessarily imply
any commitment to hold the island permanently. In fact, it was specific in denying Filipinos any status as US citizens. The US
disclaimed any disposition or intention to exercise permanent sovereignty, jurisdiction or control over said islands, and assert their
determination, when a stable and independent government shall have been erected therein entitled on the judgment of the government
of the US to recognition as such, to transfer said government, upon terms which shall be reasonable and just, all rights secured under
the cession of Spain, and to thereupon leave the government and control of the islands to their people.

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I-E | LEGHIS | Dean Pacifico A.

SYLLABUS FOR LEGAL HISTORY

Dean Pacific A. Agabin

I. The uses of history in Law

II. Pre-Hispanic custom law

B. Chapter 2, ―Liability‖, Fernandez, supra.

C. Chapter 4, ―Minimum Government‖, Fernandez, supra.

E. Chapter 8, ―Crime and Punishment‖, Fernandez, supra.

F. Chapter 9, ―Remedies and Procedure‖, Fernandez, supra.

III. Roman Law and Spanish Colonization

B. Chapter II, ―Legal Fictions‖ In Maine, supra.

C. Chapter III, Law of Nature and Equity in Maine, supra.

D. Chapter III, ―The Constitutionalism of Rome and Its Influence‖ in McIlwain,

E. Agabin, ―The Philosophy of the Civil Code‖, 66 Phil. L.J. 1.

IV. Muslim Law in Southern Philippines

V. Common Law and Common Concepts

B. Jencks, ―The Development of Teutonic Law‖ (Reprint)

C. Pound, The Spirit of the Common Law (1921)

Ch. 1. ―The Feudal Element‖

Ch. 2. ―Puritanism and the Law‖

Ch. 3, ―The Courts and the Crown‖

VI. Modern Filipino thought of the law

Ch III, ―On the Origins, Necessity and Functions of Government

Ch IV, ―On the Obedience to Law‖

Ch VIII, ―The Malolos Congress: Legislative Supremacy v. Temporary Dictatorship

VII. Manifest Destiny and hybridization of Philippine Law

E. Fernandez, ―Sixty Years of Philippine Law‖, 35 Phil. L. J. 1389

 Regional Diversity of Custom Law

 Regional political communities

 Diversity within the regional community

 General aspects of custom law

 Functions of Custom Law

 Preservation of the Peace

 Status in Custom Law

Chapter 4, “Minimum Government”, Fernandez, supra.

I. Barangay as Political Community

II. Minimal Government

- Government within the barangay was minimal because of:

o household organization was virtually self-sufficient and autonomous

- 2 functions generally discharged to the barangay a political organization

III. No Monopoly of Force

IV. Principle of Self-Help

o a condition of more or less frequent strife

V. System of Obligation in Barangay

 (apex) household of the datu -

* in smaller barangays – only 1 chief to whom all freemen were subordinate

VI. Status of Datu

- Authority is charismatic, not traditional

VII. Prerogatives of the Datu

- Veneration and respect

VIII. The Datu as Captains in War

IX. The Datu as Judge, Arbitrator and Mediator

1. Geographical, demographic, etc:

– situated on the divide splitting Davao City and Cotabato

2. Politics and governance

Time Dispute settlement methods Governance

II. ORIGIN OF THE CONCEPT OF PROPERTY AND ITS DEVELOPMENT

 kaddi means my, mine

a. cleaning the trees‘ surrounding area or

III. LAND OWNERSHIP AMONG THE MANUVU’

IV. CLASSIFICATION OF MANUVU’ PROPERTY AND OBSERVATIONS

The following are considered property:

a. impon – articles that are worn on the body