LEGAL HISTORY

Course Outline and Classroom Policies

Paolo S. Tamase
ps.tamase@cruzmarcelo.com

Law 115 • A.Y. 2018-2019 (1st Semester)

COURSE OBJECTIVES, COMPONENTS & GRADING POLICIES

1. Course Objective

By the end of the course, the student must have a working critical knowledge of
the historical development of the Philippine legal system, specifically the various
foreign and indigenous influences of Philippine law, and contemporary events
that continue to shape the Philippine legal system and its institutions. The
student must also appreciate how this working knowledge can translate to her
future legal practice and the fulfillment of her impending responsibilities as a
member of the Philippine bar.

2. Course Components

Component Weight
Recitations and classroom component 50%
Midterm examination 25%
Final examination 25%

2.1. Recitation will be conducted at random. A student may be called more than once
in a classroom session. A student who is called but is not present for recitation
will be given a 5.0 for each such instance, conditional upon a valid excuse.
2.2. The classroom component may consist of short quizzes, oral reports, and similar
requirements designed to evaluate each student’s comprehension of the assigned
materials and her preparedness for classroom sessions.
2.3. In lieu of the midterm and final examination requirements, a student may submit
an academic paper on a topic pre-approved by the lecturer. A maximum of two
students may partner for this substitute requirement. The student must express
her intention to avail of this substitute requirement at least one week prior to the
conduct of the midterm examination; the proposal and its approval may follow
after.

3. Attendance and Dropping

3.1. University policies on absences and tardiness will be enforced. Students who
exceed the allowable number of unexcused absences will be dropped from the
course and given a 5.0, pursuant to University rules.
3.2. A premium of 0.25 will be given to a student with perfect attendance, i.e., without
being absent or late in any class session. Absences and tardiness are excused only
for reasons of life and death or for official (i.e., University or College-sanctioned)
reasons.

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4. Target Schedule

SESSION COVERAGE
1 Introduction
2 I.A (Indigenous Law) to I.B. (Islamic Law)
3 II.A.1 (The Roman Law Foundations of Civil Law) to II.A.2
(Spanish Colonization and the Importation of the Civil Law)
4 II.A.3 (Land Rights under Spanish Colonization)
5 II.B.1 (Development of the Common Law) to II.B.2 (U.S.
Colonization and the Importation of Common Law
6 II.B.3 (The Importation of U.S. Political and Constitutional Law)
to II.C (Fusion of the Spanish and American Legal Systems)
7 (Buffer)
8 MIDTERM EXAMINATION
9-10 III.A. (Social Legislation and the Rise of Administrative Law) to
III.B. (Globalization)
11-12 III.C. (Political Dynasties) to III.D. (Martial Law and the
Politicization of the Judiciary)
13 (Buffer)
14 Integration
15 FINAL EXAMINATION

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 COURSE OUTLINE

Required Text: PACIFICO A. AGABIN, MESTIZO: THE STORY OF THE PHILIPPINE LEGAL SYSTEM
(2nd ed., 2016) [hereinafter, “AGABIN”].

 Unless only a particular separate opinion is assigned, students should expect to

be asked on all forms of separate opinions in the cases below.
 Changes to the course outline may be implemented during the semester, with
due notice to the class.

Introduction

Myrna S. Feliciano, Ch. 1: Historical Overview, in THE LEGAL SYSTEM OF THE

PHILIPPINES (2005), available at http://www.aseanlawassociation.org/legal-
phil.html (last accessed 26 May 2016).
Myrna S. Feliciano, Ch. 2: Sources of Law, in THE LEGAL SYSTEM OF THE PHILIPPINES
(2005), available at http://www.aseanlawassociation.org/legal-phil.html (last
accessed 26 May 2016).
AGABIN, Introduction.
In re Shoop, 41 Phil. 213 (1920).

Part I: The Pre-Colonial Philippine Legal System

A. Indigenous Law

AGABIN, Chapter 1: Indigenous Legal Culture.

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
Rubi v. Provincial Board of Mindoro, 39 Phil. 660 (1919).

B. Islamic Law

AGABIN, Chapter 2: The Advent of Islam.

Justin G. Holbrook, Legal Hybridity in the Philippines: Lessons in Legal Pluralism from
Mindanao and the Sulu Archipelago, 18 Tul. J. Int'l & Comp. L. 403 (2009-2010).
Province of North Cotabato v. Government of the Republic of the Philippines Peace
Panel on Ancestral Domain, 568 SCRA 402 (2008) (main op. and Puno, J.,
separate op.).

Part II: Colonial Foundations of the Philippine Legal System

A. Spain and Civil Law

1. The Roman Law Foundations of Civil Law

AGABIN, Chapter 3: The Rise of the Civil Law System.

2. Spanish Colonization and the Importation of the Civil Law

Ruben F. Balane, The Spanish Antecedents of the Philippine Civil Code, 54 PHIL.
L.J. 1 (1979).
AGABIN, Chapter 4: Uncivil Law as a Tool of Spanish Imperialism.

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 OWEN J. LYNCH, COLONIAL LEGACIES IN A FRAGILE REPUBLIC: PHILIPPINE
LAND LAW AND STATE FORMATION (2011) [hereinafter, “LYNCH”],
Chapter 1: Spanish Sovereignty: Legal Bases.
Id., Chapter 2: Madrid and Manila: Secular Spanish Participants.
[Id., Chapter 3: Foreign Influences in the Provinces: Encomenderos, Governors,
Priests and Businessmen.]
[Id., Chapter 4: Native Actors: Collaborators, Entrepreneurs, and Proto-
Nationalists.]

3. Land Rights under Spanish Colonization

LYNCH, Chapter 5: Emergence of the Documented Property Regime (1565-1745).

Id., Chapter 6: Agricultural Intensification and the Theoretical Extinguishment of
Ancestral Rights (1745-1898).

Post-Colonial Reintroduction of Native Land Rights

Cariño v. Insular Government, 8 Phil. 150 (1907).

Cariño v. Insular Government, 212 U.S. 449 (1909).
Ma. Lourdes Aranal-Sereno & Roan Libarios, The Interface Between National
Land Law and Kalinga Land Law, 58 PHIL. L.J. 420 (1983).
Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128
(2000) (main op. and Puno, J., separate op.).

B. The United States, Common Law, and Fusion of Legal Systems

1. Development of the Common Law

Joseph Dainow, The Civil Law and the Common Law: Some Points of Comparison, 15(3)
AM. J. COMP. L. 419 (1967).
Frederic William Maitland, A Prologue to the History of English Law, in ASSOCIATION OF
AMERICAN LAW SCHOOLS, SELECT ESSAYS IN ANGLO-AMERICAN LEGAL
HISTORY 7 (1907).
ROSCOE POUND, THE SPIRIT OF THE COMMON LAW 1-84 (1921), ch. 1-3.
AGABIN, Chapter 5: The Common Law: Uncommon Tool of Colonialism.

2. U.S. Colonization and the Importation of Common Law

AGABIN, Chapter 6: American Culture, Constitutionalism, and the Common Law.

3. The Importation of U.S. Political and Constitutional Law

LYNCH, Chapter 8: Transition: Colonialism and the U.S. Constitution.

LYNCH, Chapter 9: Distant Overseers: U.S. Based Participants and the Organic Act of 1902.
United States v. Kepner, 1 Phil. 519 (1902); 1 Phil. 727 (1903).
Kepner v. United States, 195 U.S. 100 (1904).
Dorr v. United States, 195 U.S. 138 (1904).

C. Fusion of the Spanish and American Legal Systems

AGABIN, Chapter 7: Conquest and Penetration: Birth of the Mestizo.

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Part III: Contemporary Issues in the Development of the
Philippine Legal System and Philippine Legal Institutions

A. Social Legislation and the Rise of Administrative Law

AGABIN, Chapter 8: The Rise of the Welfare State and the Recognition of Economic, Social
and Cultural Rights.
Id., Chapter 10: A Constitution of Positive Liberty.

B. Globalization

AGABIN, Chapter 12: Globalization: Back to the Future.

Perfecto V. Fernandez, The Emergent World Federal System and its Implications for
International Law, 53 PHIL. L.J. (1978).

International Law, In General

CONST. art. II, sec. 2.

CONST. art. VII, sec. 21.
Dag Hammarskjold, International Law and the United Nations, Address delivered
before the Association of the Bar of the City of New York (Sept. 15, 1955),
available at 30 PHIL. L.J. 555 (1955).
[Mark Richard D. Evidente, The Interaction of Domestic and International Law: The
Doctrine of Incorporation in Philippine Practice, 78 PHIL. L.J. 396 (2004).]
Kuroda v. Jalandoni, 83 Phil. 171 (1949).

Influence of International Law in Specific Fields

Republic v. Sandiganbayan, 407 SCRA 10 (2003).

Garcia v. Drilon, 699 SCRA 352 (2013).
Korea Technologies Co., Ltd. v. Lerma, 542 SCRA 1 (2008).
Poe-Llamanzares v. Commission on Elections, 786 SCRA 1 (2016) (main op. and
Carpio, J., dissenting).

C. Political Dynasties

LYNCH, Chapter 12: Insular Actors: Subordinate Officials and Politicians.

SHEILA CORONEL, ET AL., THE RULEMAKERS: HOW THE WEALTHY AND WELL-BORN
DOMINATE CONGRESS 10-21, 36-43, 45-55, 70-95 (2004).
CONST. art. II, sec. 26.
[Belgica v. Ochoa, 710 SCRA 1, 134 (2013).]

D. Martial Law and the Politicization of the Judiciary

AGABIN, Chapter 9: Martial Law as an Instrument: Filipino Style.

Arno V. Sanidad, Façade Democracy: Martial Law and the Myth of Democracy, 54 PHIL.
L.J. 313 (1979).
AGABIN, Chapter 11: Judicial Review and the Judicialization of Politics
Skarlit C. Labastilla, Dealing with Mutant Judicial Power: The Supreme Court and its
Political Jurisdiction, 84 PHIL. L.J. 2 (2009).

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 MARITES DAÑGUILAN VITUG, SHADOW OF DOUBT: PROBING THE SUPREME COURT 17-
34, 87-120 (2010).
MARITES DAÑGUILAN VITUG, HOUR BEFORE DAWN, 33-41, 221-267 (2012).
Dante Gatmaytan, Politicisation and Judicial Accountability in the Philippines, 87 PHIL.
L.J. 21 (2012).
Republic v. Sereno, G.R. No. 237428, 11 May 2018 (main op. and Caguioa, J.,
dissenting).

Integration

Paolo S. Tamase, Guilty by Reasonable Doubt and Counterfactual Innocence: Asymmetric

Appeals in Philippine Double Jeopardy Law, 90 PHIL. L.J. 401 (2016).
Dante B. Gatmaytan, Scholarship and Subversion, 88 PHIL. L.J. 662 (2014).