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LEGAL HISTORY

Course Outline and Classroom Policies Paolo S. Tamase ps.tamase@cruzmarcelo.com

Law 115 A.Y. 2018-2019 (1 st 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 Midterm examination Final examination

 

50%

25%

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.

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

COURSE OUTLINE

Required Text: PACIFICO A. AGABIN, MESTIZO: THE STORY OF THE PHILIPPINE LEGAL SYSTEM

(2 nd 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.

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,

HISTORY 7 (1907).

SELECT

ESSAYS

IN

ANGLO-AMERICAN

LEGAL

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.

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).

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).