Cultural Jurisprudence - University of...

Cultural Jurisprudence

Eric A. San Juan*

I. INTRODUCTION ..................................................................................... 1 II. METHODOLOGY .................................................................................... 3 III. BACKGROUND ...................................................................................... 6

A. Political History ........................................................................... 6

B. Historical Figures ........................................................................11 IV. RHETORICAL STRATEGIES ................................................................... 14

A. Analogize to Classic Categories ................................................. 14

B. Reinterpret the Intent of the Parties ........................................... 15 C. Couch Moral Judgment in Factual Context ............................... 17 D. Assume Natural Organizing Principles ...................................... 21

V. DISCUSSION ........................................................................................ 23 VI. CONCLUSION ...................................................................................... 23

I. INTRODUCTION

As an institution, case law effects a normative restatement of social

fact, ascribing cultural meaning to daily, commonplace events. Through

legally routine techniques of reasoning by analogy, interpretation of intent,

limitation to facts, or even naturalization of ordering principles, the

colonial Supreme Court in Manila reimagined Philippine life. Case-by-

case, the court, police, tax collector, administrative agencies, corporations,

firms, and other institutions of law set new terms of engagement between

parties. Anywhere that a legal regime prevails, lawyers strive to put

clients’ and other parties’ claims into legally cognizable terms. Excluding

some facts as inoperative (even if important to the parties emotionally or

otherwise), these terms stress the value of other facts. This aspect of legal

work constitutes the subject of cultural jurisprudence that this Article

conceptualizes. By analyzing case law as a cultural artifact and drawing

from American courts that had jurisdiction over the Philippine Islands

after the Spanish-American War, this Article extends beyond doctrinal

analysis proper, or even legal history and anthropology, to examine

strategies of rhetoric (i.e. persuasive speech) deployed by these colonial

courts. These courts constituted a judiciary that imposed implicit cultural

assumptions through the neutral rhetoric of liberal legality.1 This Article

* Adjunct Prof. of Law, Georgetown Univ.; Advisory Group Member, Meridian-

180.org, Clarke Program on E. Asian Law & Culture, Cornell Univ.; A.B. Harvard 1987,

J.D. Harvard 1991, M.A. Chicago 1996. Without prejudice, this Article grew out of a

session of the conference of the Amer. Society for Legal History (2001) with Susan

Scafidi (now at Fordham Law School).

1 See ROBERTO MANGABEIRA UNGER, LAW IN MODERN SOCIETY: TOWARD A

CRITICISM OF SOCIAL THEORY 239 (The Free Press, 1976) (discussing the liberal state and

2 Asian-Pacific Law & Policy Journal Vol. 15:1

comprises a case study in cultural jurisprudence that still resonates today

with modern policy debates concerning nation-building overseas.

Little more than a century ago, the Philippine-American War that

ensued when the United States first stepped into the shoes of a Great

Power raised controversy about nation-building overseas. This was

captured contemporaneously by Sen. George Frisbie Hoar (R-Mass.) as

reiterated in a recent historical account:

You have wasted six hundred millions of treasure. You have

sacrificed nearly ten thousand American lives – the flower

of our youth. You have devastated provinces. You have

slain uncounted thousands of the people you desire to

benefit. . . . [y]ou make the American flag in the eyes of a

numerous people the emblem of sacrilege in Christian

churches, and of the burning of human dwellings, and of

the horror of the water torture. . . . [y]our practical

statesmanship has succeeded in converting a people who

three years ago were ready to kiss the hem of the garment

of the American and to welcome him as liberator . . . into

sullen and irreconcilable enemies, possessed of a hatred

which centuries cannot eradicate.2

This controversy resonates with current foreign policy debates that have

implications for the U.S. exportation of the rule of law.3 On one hand, the

rule of law represents the neutral rhetoric of liberal legality, yet on the

other it is the imposition of implicit cultural assumptions. By way of

explanation, in the 1981 Storrs Lectures at Yale Law School, the

influential cultural interpreter Clifford Geertz explained that “the

institutions of law translate between a language of imagination and one of

decision and form thereby a determinate sense of justice.”4 Lawyers may

effectuate this translation through reasoning by analogy, interpretation of

intent, limitation to facts, or other rhetorical tropes of general applicability

that flatten particular people and circumstances into fungible parties and

claims, thereby inserting implicit cultural assumptions. In Philippine-

American history, this legal translation was part of the colonial

government apparatus.5

the rule of law).

2 GREGG JONES, HONOR IN THE DUST: THEODORE ROOSEVELT, WAR IN THE

PHILIPPINES, AND THE RISE AND FALL OF AMERICA’S IMPERIAL DREAM 321 (New Am.

Library, 2012).

3 See Paul D. Carrington, Mandatory Constitutions, 1 BUCERIUS L. REV. 31, 33

(2007).

4 CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE

ANTHROPOLOGY 174 (Basic Books, 1983) (originally presented as Storrs Lectures).

5 See THE FOUCAULT EFFECT: STUDIES IN GOVERNMENTALITY: WITH TWO

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The Article proceeds in Part II with a discussion of the

methodology underlying a cultural approach to jurisprudence, which is

interpretive rather than narrative.6 Part III provides the historical

background for this particular case study, offering an overview of the

period with a focus on relevant historical figures in law, anthropology, and

colonial administration. Part IV contains the raw material of case law for

analysis as to typical rhetorical strategies used in the Philippines. Part V

discusses potential implications of cultural jurisprudence for while this

Article flows from concrete circumstances, its observations are not merely

particularistic. In conclusion, Part VI suggests that future research on other

cases can apply the methodology that this Article employs with respect to

a particular historical period. Potentially, the future subject of the study of

cultural jurisprudence would be not a particular society, but the

mechanism by which law works in any culture.

II. METHODOLOGY

Case law can be utilized in many different manners. Practitioners

and scholars cite case law for the authority of the rules there enshrined.

Legal historians observe the initial emergence and subsequent

disappearance of doctrines over decades of common law.7 Legal

anthropologists see in case law either recognition of local customs or

imposition of external norms.8 This Article adopts a comparative

methodology that is another variant on how to read case law.

As elegantly formulated above, law translates from a language of

imagination to one of decision, forming a determinate sense of justice.9

This Article focuses on the act of translation. Translation gives

governmental decisions a determinate, normative, or nomothetic basis,

resulting in a feeling of justice or at least customary process, even if the

regime is not necessarily democratic or egalitarian. Legal translation

occurs whether the population is characterized by symmetry between an

LECTURES BY AND AN INTERVIEW WITH MICHAEL FOUCAULT 96 (Graham Burchell et al.

eds., 1991) (discussing the complex of institutional and technical mechanisms that

constitute governmental apparatus).

6 CLIFFORD GEERTZ, Thick Description: Toward an Interpretive Theory of

Culture, in THE INTERPRETATION OF CULTURES 3 (Basic Books, 1973) (suggesting a

hermeneutic approach rather than a judicious historical narrative).

7 See, e.g., William J. Novak, The 2010 Randolph W. Thrower Symposium, The

New Deal: From Regulation to Re-Regulation: Law and the Social Control of American

Capitalism, 60 EMORY L.J. 377, 386 & 389 (2010) (asking whether certain “cases reflect

the most important fields of economic development” and explaining that the common law

framework is being replaced by areas governing the nation’s economy).

8 See, e.g., Sally Engle Merry, Legal Pluralism, 22 L. & SOC’Y REV. 869, 872-

73 (1988).

9 GEERTZ, supra note 6, at 174.


educated citizenry and exegete judges – who are first among equals – or

by asymmetry between a disenfranchised populace and an authoritarian

judiciary. In the first case, parties may perceive judges’ or lawyers’

restatement of their complaints as aligning personal facts with social

norms.10

In the second case, subjects may perceive the court as the

executor of a despotic regime. In either case, the institutions of law

perform the conceptual work of translation.

The raw material of case law in this Article comes from the

American period in the Philippines (the first half of the twentieth century),

a regime well studied by historians and anthropologists.11

A legal historian

typically would organize the evidence (archival documents) under

common law categories, like torts, contracts or property, to trace the

development of doctrines in the Philippine context.12

A legal

anthropologist characteristically would view the cases as data on racial,

sexual, or socio-economic classifications of the native population,

especially marginal sectors with indigenous law-like functions.13

This

Article differs from these approaches by tracing how the judiciary ordered

its worldview: it produced rhetoric that reconciled constitutional

democracy with a colonizing project.

Lawyers’ everyday rhetorical strategies, such as reasoning by

analogy, interpretation of intent, or limitation to facts, take on a particular

valence in the colonial context. With respect to an earlier formation, the

contemporary socio-legal scholar Max Weber wrote that:

[I]t is obvious that the advance of the trained jurists was

caused by the intrinsic needs of the administration of

justice, especially by the need to rationalize legal

procedure, and by the fact that the jurists possessed that

10

See GEORGE E. MARCUS ET. AL, LIVES IN TRUST: THE FORTUNES OF DYNASTIC

FAMILIES IN LATE TWENTIETH-CENTURY AMERICA 60 (Westview Press, 1992) (describing

the fiduciary as “insider-outsider”).

11 See, e.g., ANTHONY MAY, SOCIAL ENGINEERING IN THE PHILIPPINES: THE

AIMS, EXECUTION, AND IMPACT OF AMERICAN COLONIAL POLICY, 1900-1913

(Greenwood Press, 1980) (exemplifying a historical account of the American period in

the Philippines).

12 See, e.g., WINFRED LEE THOMPSON, THE INTRODUCTION OF AMERICAN LAW

IN THE PHILIPPINES AND PUERTO RICO, 1898-1905 132-33 (Univ. of Ark. Press, 1989)

(discussing criminal law and procedure, civil procedure, commercial law, real property,

wills, guardianships, partnerships, evidence, etc.).

13 See, e.g., MINDIE LAZARUS-BLACK, LEGITIMATE ACTS AND ILLEGAL

ENCOUNTERS: LAW AND SOCIETY IN ANTIGUA AND BARBUDA (Smithsonian Inst. Press,

1994); see also GREG BANKOFF, CRIME, SOCIETY, AND THE STATE IN THE NINETEENTH-

CENTURY PHILIPPINES 12 (Ateneo de Manila Univ. Press, 1996) (“Thus criminal and civil

law, judicial procedures, punishment, personal obligations to the state, and taxation

differed according to whether a person was categorized as Indio, Chinese, Chinese

mestizo, and Spanish or Spanish mestizo.”).

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special capacity which results from specialized professional

training, viz., the capacity to state clearly and

unambiguously the legal issue involved in a complicated

situation.14

Through professional rhetoric, lawyers state what matters. Their normative

restatements reflect legal architecture or consciousness – the background

assumptions that make possible juridical cognoscibility.15

Legal

consciousness refers to common assumptions such that even “actors who

think they disagree profoundly about the substantive issues that matter

would dismiss without a thought (perhaps as ‘not a legal argument’ or as

‘simply missing the point’) an approach appearing to deny them.”16

By

submerging juridically irrelevant views below consciousness, legal

process denies certain possibilities even before an official determination.

Rather than a history of landmark cases, this Article is an

anthropological account of routine rhetorical strategies. Traditionally,

anthropology captures quotidian expressions to create a synchronic

account of culture.17

A focus on legal translation or rhetorical strategies

within archival materials from the Philippine courts resonates with

anthropologists’ observation that “what constitutes the archive itself, what

is excluded from it, what nomenclatures signal at certain times are

themselves internal to, and the very substance of, the cultural politics of

colonial rule.”18

The presentation of case law below constitutes a foray

into the internal substance of the cultural politics of colonial rule. More

recently, socio-legal scholars have observed that mundane documentary

practices structure the conceptions of time, agency, authorship, and

14

MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE

SOCIOLOGY 853 (Guenther Roth & Claus Wittich eds., 1968) (referring specifically to

Roman law scholars from Germany in the 19th Century).

15 MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960:

THE CRISIS OF LEGAL ORTHODOXY 10 (Oxford Univ. Press, 1992).

16 Duncan Kennedy, Toward an Historical Understanding of Legal

Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. IN

L. & SOC. 3, 6 (1980).

17 See A.R. RADCLIFFE-BROWN, STRUCTURE & FUNCTION IN PRIMITIVE SOCIETY

4 (The Free Press, 1952) (discussing “an account of a form of social life as it exists at a

certain time, abstracting as far as possible from changes that may be taking place in its

features”); F. LANDA JOCANO, SULOD SOCIETY: A STUDY IN THE KINSHIP SYSTEM AND

SOCIAL ORGANIZATION OF A MOUNTAIN PEOPLE OF CENTRAL PANAY 8 (Univ. of the Phil.

Press, 1968) (Chicago-trained Philippine anthropologist stating: “The materials upon

which this study is based were obtained through the usual genealogical method and

through noting down kinship terms used in daily life.”); PETER W. REDFIELD, SPACE IN

THE TROPICS: FROM CONVICTS TO ROCKETS IN FRENCH GUIANA 12 (Univ. of Cal. Press,

2000) (observing that “[d]etail makes the everyday convincing”).

18 Frederick Cooper & Ann Laura Stoler, Tensions of Empire: Colonial Control

and Visions of Rule, 16 AM. ETHNOLOGIST 609, 619 (1989).


humanity in which subjects increasingly share the passions and problems

of the professional.19

In sum, everyday rhetoric glosses the common

assumptions facilitating the application of American law to seven

thousand tropical isles. With other tools of social engineering, legal

language was no less a part of the colonial apparatus than the U.S.

warships that had sunk the Spanish fleet in Manila Bay.

III. BACKGROUND

This Part sets forth the context for the case studies that follow.

Colonization – or more properly, the annexation of a dependent territory –

created an asymmetric legal regime.20

The universal sweep of legal

rhetoric would have a particular effect in this period.

A. Political History

In 1856, the United States Supreme Court opined on America’s

colonial power in dicta:

There is certainly no power given by the Constitution to the

Federal Government to establish or maintain colonies

bordering on the United States or at a distance, to be ruled

and governed at its own pleasure; nor to enlarge its

territorial limits in any way, except by admission of a new

State.21

At the time of the Spanish-American War, learned opinion on the

constitutionality of colonization spanned the map. One commentator

editorialized, eerily foreshadowing the future, that “the constitutional

difficulty is all rubbish, as Congress can make laws for territories, or

declare the islands to be held, like Bosnia, as lands ‘in temporary military

occupation’ of the United States.”22

On the other hand, the 1900

Democratic Party declared: “We are unalterably opposed to the seizing or

19

See DOCUMENTS: ARTIFACTS OF MODERN KNOWLEDGE (Annelise Riles ed.,

2006).

20 “‘Dependencies’ or ‘provinces,’ as defined by our courts, are territories

already partially or wholly settled, distinct from the sovereign State, but belonging to it

and subject to the laws and regulations it may prescribe.” CHARLES ALEXANDER

GARDINER, OUR RIGHT TO ACQUIRE AND HOLD FOREIGN TERRITORY: AN ADDRESS

DELIVERED BEFORE THE NEW YORK STATE BAR ASSOCIATION AT ITS ANNUAL MEETING

AT ALBANY, JANUARY 18, 1899 19-20 (Knickerbocker Press, 1899).

21 Scott v. Sanford, 60 U.S. 393, 446 (1856).

22 The Fate of the Philippines (1898), reprinted in A TREATY OF PEACE

BETWEEN THE U.S. AND SPAIN WITH ACCOMPANYING PAPERS 348 (Gov’t Printing Office,

1899); see also Christopher Columbus Langdell, The Status of Our New Territories, 12

HARV. L. REV. 365 (1899); Abbott Lawrence Lowell, The Status of Our New Possessions

– A Third View, 13 HARV. L. REV. 155 (1899).

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purchasing of distant islands to be governed outside the Constitution and

whose people can never become citizens.”23

Possession of the Philippines after the War with Spain presented a

novel challenge for American law because “there was no existing rule of

law which could be used to deal with annexation,” so “the doctrine of

territoriality evolved out of the numerous experiences the nation faced as

it grew both politically and emotionally.”24

In 1901, the landmark Insular

Cases – which settled disputes on the international status of the Philippine

Islands, a Spanish cession territory along with Puerto Rico – became a

Supreme Court vehicle for the principle that the several islands, while not

States of the Federal union, could be treated as domestic for tariff

purposes.25

This was perhaps the biggest contribution to American

colonialism in the Philippines of the school of conceptual rationalization,

before a more realist school of thought succeeded.

In the Philippine-American War from 1899 to 1902, which cost as

many as a million casualties, American expansionist ideologies triumphed

over the Philippine revolutionary republic.26

At the beginning of the war,

President William McKinley’s administration established a military

government on the archipelago under the Secretary of War. Yet, even

though colonial jurisdiction began as military conquest, the President

stated on April 7, 1900 that a civil administration would take over as soon

as possible.27

On July 4, 1901, General Arthur MacArthur fulfilled the

president’s statement and transferred control to William Howard Taft, the

first of a series of civil governors.

The Governor’s Philippine Commission wielded executive and

legislative powers, and administered judicial appointments. In 1908, Taft,

now promoted from Philippine Governor to U.S. Secretary of War,

explained:

What should be emphasized in the statement of our national

policy is that we wish to prepare the Filipinos for popular

self-government. This is plain from Mr. McKinley’s letter

of instructions and all of his utterances. It was not at all

23

JULIUS W. PRATT, AMERICA’S COLONIAL EXPERIMENT: HOW THE UNITED

STATES GAINED, GOVERNED, AND IN PART GAVE AWAY A COLONIAL EMPIRE 79 (Prentice

Hall, 1950).

24 JAMES EDWARD KERR, THE INSULAR CASES: THE ROLE OF THE JUDICIARY IN

AMERICAN EXPANSIONISM 3 (Kennikat Press, 1982).

25 See De Lima v. Bidwell, 182 U.S. 1, 200 (1901); Dooley v. United States, 182

U.S. 222, 235 (1901); Downes v. Bidwell, 182 U.S. 244, 287 (1901).

26 See Luzviminda Francisco, The Philippine-American War, in THE PHILIPPINES

READER 8, 19 (Daniel B. Schirmer & Stephen Rosskamm Shalom eds., 1987).

27 See PRATT, supra note 23, at 197 (discussing instructions from War Secretary

Elihu Root to Taft & 2nd

Philippine Commission).


within his purpose or that of Congress which made his

letter a part of the law of the land that we were merely to

await the organization of a Philippine oligarchy or

aristocracy competent to administer the government and

then turn the islands over to it.28

Ironically, democratic ideals justified colonial rule.

In 1909, during reconstruction of the war-ravaged archipelago,

Justice Oliver Wendell Holmes, Jr. contrasted the Native American

experience with that of the Filipinos:

Whatever consideration may have been shown to the North

American Indians, the dominant purpose of the whites in

America was to occupy the land . . . our first objective in

the internal administration of the islands is to do justice to

the natives, not to exploit their country for private gain.29

In 1912, the Democratic Party revisited the international and insular

factors that had precipitated the colonial conquest, stating:

We favor an immediate declaration of the Nation’s purpose

to recognize the independence of the Philippine Islands as

soon as a stable government can be established, such

independence to be guaranteed by us until the

neutralization of the islands can be secured by treaty with

other powers.30

Some thirteen years after the Spanish-American War, the colonial status of

the Philippines still depended on the decisions of world powers as much as

the current stability of its own insular order. Retrospectively, the

Democrats’ dedication to independent government and their wariness of

conquering territory still resonates today in similar foreign policy

debates.31

Throughout the archipelago, Filipinos began to fill the ranks of the

government staff, mostly at the lower levels. By October of 1913,

28

Id. at 299.

29 Cariño v. Insular Gov’t of the Phil. Islands, 212 U.S. 449, 458 (1909); see also

Vicente L. Rafael, White Love: Surveillance and Nationalist Resistance in the U.S.

Colonization of the Philippines, in CULTURES OF U.S. IMPERIALISM 185 (Amy Kaplan &

Donald E. Pease eds., 1993). The Court’s position on the insular territories was of such

import to Theodore Roosevelt that, prior to nominating Holmes, the President at a secret

1902 meeting confirmed that, as a Justice, he would not accord to the overseas subjects

the rights of States. See G. EDWARD WHITE, OLIVER WENDELL HOLMES, JR. 66 (Oxford

Univ. Press, 2006).

30 PRATT, supra note 23, at 203.

31 See NIALL FERGUSON, COLOSSUS: THE PRICE OF AMERICA’S EMPIRE 51, 154

(Penguin Press, 2004).

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Filipinos in the government numbered 3 of the 7 Supreme Court justices, 3

of the 5 land court judges, 12 of the 24 trial judges, and 100 percent of the

justices of the peace and governors of the so-called Christian provinces, as

well as 71 percent of the classified civil service and 92 percent of the

schoolteachers.32

On August 29, 1916, Congress reiterated “the purpose of the

people of the United States to withdraw their sovereignty over the

Philippine Islands and to recognize their independence as soon as a stable

government can be established therein,” retrospectively asserting that “it

was never the intention of the people of the United States in the incipiency

of the War with Spain to make it a war of conquest or for territorial

aggrandizement.”33

Now that war had pacified the populace, the stage was

set for the rule of law.

In the same year, the U.S. Congress established a bicameral

legislature in the Philippines to be elected by Filipinos, more and more of

who were becoming enfranchised.34

The Philippine Islands were

represented in the U.S. Congress by two commissioners who resided in

Washington, D.C. but had no vote. The U.S. President and Congress had

ultimate veto or annulment power over acts of the new Philippine

legislature.35

Thus, the U.S. government organized the Philippine

government in its own image.

On the Philippine Islands, during the first decade of the twentieth

century, the U.S. organized a judicial system under which “for the first

time the Filipino without money or influence could hope for justice in the

courts.”36

U.S. objectives for the judiciary were consistent with the

impulse to liberate the native population from Spanish corruption.

The intrinsic nature of the new Philippine government and its

relationship to the U.S. became a question for the new judiciary. In 1918,

in the opinion of one member of the Philippine Supreme Court:

The Government of the Philippine Islands is not that of

either a State or Territory of the United States, but is a

complete government organism, outside the constitutional

relations which unite the States and Territories into the

Union. The Filipino people enjoy practical self-

government . . . Sovereignty, therefore, in so far as the

Philippines is concerned still resides in the United States,

32

See PRATT, supra note 23, at 202; see also Conrado Benitez, The Supreme

Court of the Philippine Islands, 2 PHIL. L.J. 1 (1915).

33 Philippine Autonomy Act, ch. 416, 39 Stat. 545 (1916).

34 See id. § 1.

35 PRATT, supra note 23, at 164-65.

36 Id. at 201.


i.e. the people of the United States are the depository of this

ultimate sovereignty.37

Here was an articulation of notions of autonomy and self-determination in

the context of the Philippine colony. According to the Justice, the Filipinos

had autonomy in the form of “practical self-government,” apparently

referring to self-determination in insular affairs. However, any such self-

determination was subject to the sovereign will of the people—not of the

Philippines—but of the United States. This circumlocution stands out as a

rhetorical reconciliation of colonial dependency and American democracy

(doublespeak, so to say). Ironically, the democratic will of the American

people seemed bolstered by their sovereign power over the oceanic

dependency. The irony did not escape a dissenter in a subsequent

proceeding, who commented, “It would, indeed, be strange were the

United States to leave as a legacy to this new democracy of the Orient, the

false doctrine that the rule of the people is compatible with the existence

of an executive office whose incumbent is vested with ‘inherent’ powers

beyond their control.”38

Nonetheless, terms like “practical self-

government” reconciled democracy and colonization. Democracy was a

legacy to be left to a colony.

In this way, the Orient served as a stage on which to play out

debates over American theories of government. Thus, the Philippines

played a classic colonial role as a testing ground for American legal

principles. Specifically, the Philippine court tested the extent of sovereign

power – juxtaposed with government by the people, where “the people”

apparently referred at least as much to the Americans as it did to the

Filipinos.

The overall experiment with sovereign power related to a debate

about the nature of civilized government. A landmark case rose from the

Philippine Islands to the United States Supreme Court when the insular tax

collector exacted an amount from a Barcelona company importing tobacco

from Manila because it used a Parisian insurer not licensed in the

Philippines. Former Governor Taft, now elevated to the bench of Chief

Justice in Washington, D.C., struck down the collection, holding that “a

state is forbidden to deprive a person of his liberty without due process of

law, it may not compel anyone within its jurisdiction to pay tribute to it for

contracts or money paid to secure the benefit of contracts made and to be

performed outside of the state.”39

The Great Dissenter, Justice Holmes,

famously responded: “Taxes are what we pay for civilized society,

37

In re Dick, 38 PHIL. REP. 41, 142 (S.C., Apr. 15, 1918) (Malcolm, J.

dissenting).

38 In re Dick, 38 PHIL. REP. 225, 250 (1918) (Fisher, J. dissenting).

39 Compañía Gen. de Tabacos de Filipinas v. Collector of Internal Revenue, 275

U.S. 87, 94-95 (1927).

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including the chance to insure. A penalty on the other hand is intended

altogether to prevent the thing punished. It readily may be seen that a State

may tax things that under the Constitution as interpreted it cannot

prevent.”40

This debate over the difference between a tax and a penalty still

rages today.41

Moreover, Holmes’ assertion of civilized standards between

Barcelona, Paris, and Manila underscores the emerging U.S. role as a

Great Power.

B. Historical Figures

As political scientists have explained, a colony may constitute an

imagined community through which officials from the mother country

circulate.42

Taft’s career path illustrated this circulation. Similarly,

numerous other officials left a paper trail regarding their circulation

including Dean C. Worcester, a Michigan biologist who served as a

Philippine Commissioner between 1898 and 1913.43

His secretary, James

A. LeRoy, also related an account of their Pacific assay.44

The lawyer

Charles Burke Elliott served as an associate justice and Secretary of

Commerce & Police of the Philippines.45

A so-called Boston Brahmin who

also identified himself as a Filipino patriot, William Cameron Forbes

preceded the former as Commissioner of Commerce & Police and

ultimately acceded to the office of Governor-General.46

Another voyager

40

Id. at 100.

41 See Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2594 (2012).

42 See BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE

ORIGIN AND SPREAD OF NATIONALISM 53 (Verso, 2nd ed., 2006) (“To see how

administrative units could, over time, come to be conceived as fatherlands . . . one has to

look at . . . the ‘journey’ . . . as a meaning-creating experience”).

43 DEAN WORCESTER, THE PHILIPPINES PAST AND PRESENT [1914] (Macmillan

Co., 1930). Biographical notes are available at Dean C. Worcester Papers 1835-1915,

UNIV. OF MICH. LIBRARY (Feb. 13, 2013), http://www.lib.umich.edu/special-collections-

library/dean-c-worcester-papers-1834-1915.

44 1 JAMES A. LEROY, THE AMERICANS IN THE PHILIPPINES: A HISTORY OF THE

CONQUEST AND FIRST YEARS OF OCCUPATION WITH AN INTRODUCTORY ACCOUNT OF THE

SPANISH RULE (Houghton Mifflin Co., 1914). Biographical notes are available at James

A. LeRoy Papers, 1893-1944, UNIV. OF MICH. BENTLEY HISTORICAL LIBRARY,

http://quod.lib.umich.edu/b/bhlead/umich-bhl-851677?rgn=main;view=text.

45 See CHARLES BURKE ELLIOTT, THE PHILIPPINES TO THE END OF THE

COMMISSION GOVERNMENT: A STUDY IN TROPICAL DEMOCRACY (Bobbs-Merrill Co.,

1917) (listing his government positions on the title page); CHARLES BURKE ELLIOTT, THE

PHILIPPINES TO THE END OF THE MILITARY REGIME: AMERICA OVERSEAS (Bobbs-Merrill

Co., 1917).

46 W. CAMERON FORBES, THE PHILIPPINE ISLANDS (Houghton Mifflin Co.,

1928). In 1904-08, Forbes was Commissioner of Commerce & Police; 1909-13,

Governor-General. Biographical notes are available at W. Cameron Forbes Papers, 1904-

1946, LIBRARY OF CONGRESS,


hailing from Michigan was Joseph Ralston Hayden, an Ann Arbor political

scientist who served as Vice-Governor and Secretary of Public Instruction

from 1933 to 1935.47

These colonial careerists embodied the intersection

of natural and social scientists, which included lawyers, who could

translate from a language of imagination to one of decision.

Among these men, three historical figures were associated with

concepts of law and anthropology in the Philippines during America’s

“direct” rule – that is, before the establishment of Philippine

commonwealth status in 1935. George A. Malcolm, a Michigan Law

graduate, served as a clerk in Manila, went on to organize the College of

Law at the University of the Philippines, and ultimately became an

associate justice of the Supreme Court.48

David P. Barrows, the first

anthropology PhD graduate of the University of Chicago, headed the

Bureau of Non-Christian Tribes and the Board of Education. In deciding

on the status of “wild tribes” in a landmark case, Justice Malcolm cited

“no less an authority than Dr. David P. Barrows.”49

Malcolm’s citation

reflects the colonial professionals’ respect for each other. While the

exemplary careers of Malcolm and Barrows represent professional paths

for attorney and anthropologist, the practical work of Roy Franklin Barton

presents an intriguing intersection of law and anthropology, discussed at

some length below.

While not a professional attorney or anthropologist, Roy Franklin

Barton published a massive corpus of data which he accumulated as a

schoolteacher and administrator in the mountains of Northern Luzon.50

According to an anthropologist’s retrospective account, Barton’s

http://findingaids.loc.gov/db/search/xq/searchMfer02.xq?_id=loc.mss.eadmss.ms010058

&_faSection=overview&_faSubsection=did&_dmdid=.

47 JOSEPH RALSTON HAYDEN, THE PHILIPPINES: A STUDY IN NATIONAL

DEVELOPMENT (Macmillan Co., 1942). Biographical notes are available at Joseph

Ralston Hayden Papers, 1899-1945, UNIV. OF MICH. BENTLEY HISTORICAL LIBRARY,

http://quod.lib.umich.edu/b/bhlead/umich-bhl-2011165?rgn=main;view=text.

48 GEORGE A. MALCOLM, AMERICAN COLONIAL CAREERIST: HALF A CENTURY

OF OFFICIAL LIFE AND PERSONAL EXPERIENCE IN THE PHILIPPINES AND PUERTO RICO

(Christopher Pub. House, 1957). Malcolm was on the bench in 1917-35. Biographical

notes are available at George A. Malcom Papers, 1896-1965 (UNIV. OF MICH. BENTLEY

HISTORICAL LIBRARY, http://quod.lib.umich.edu/b/bhlead/umich-bhl-

851764?rgn=main;view=text.

49 Rubi v. The Provincial Bd. of Mindoro, 39 PHIL. REP. 660, 693 (S.C., Mar. 7,

1919).

50 See FREDERICK L. WERNSTEDT & JOSEPH E. SPENCER, THE PHILIPPINE ISLAND

WORLD: A PHYSICAL, CULTURAL, AND REGIONAL GEOGRAPHY 312-13 (Univ. of Cal.

Press, 1967) (describing Luzon as the largest island in the Philippine archipelago,

containing about half the country’s population and the capital, Quezon City, within Metro

Manila, as well as, in the north, mountains that are home to the Ifugao and other Igorot

tribes).

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“contribution to legal realism is in the tradition of the greatest writers on

law from Justices Holmes[,] and Cardozo to Karl Llewellyn, Malinowski,

and their successors.”51

Juxtaposing Malcolm’s jurisprudence with

Barrows’ implementation of laws and Barton’s discovery of law among

tribes without states can help to trace the transformations in American

legal consciousness that developed during the early twentieth century.

A practical ethnologist, Barton advanced a legalized perception of

highland tribes among whom head-hunting was endemic. He contended

that their peace-pact was an indigenous institution of state-like authority.52

Barton’s sympathetic characterization was met with disagreement by

distinguished contemporary anthropologists Alfred Kroeber and Paul

Radin.53

Discursively, Barton’s discovery of legality among Igorots would

render them susceptible to governance: “Governor Walter A. Hale . . .

perceived the genius of several Kalinga institutions, fortified them, and

gave them a field wherever they could be useful.”54

Here, legal

anthropology celebrated colonial administration.

In pertinent part, Barton’s work revealed inconsistencies in the

application of categories. For example, he relentlessly digested Ifugao

cases into Anglo-American categories, characterizing cases under

contracts, torts, crimes, or the like, even though these were not native

Ifugao concepts. Barton finessed the absence of state instrumentality

within the tribe by the use of descriptive terms for parties based on the

situation: “Sometimes a creditor and a numerous and powerful following

of kinsmen descend upon a debtor’s house as unwelcome guests, consume

his stores of food, and force his hospitality until appeased by the payment

of the debt.”55

However, characterization of such forced hospitality as

debt-collection fails to do justice to Barton’s extensive ethnographic

fluency and neglects the socio-cultural implications of mobilizing

kinsmen. There is a misfit between the social fact of mobilizing kin –

persons tied by consanguinity or affinity – and the legal theory of debt-

collection, referring to equally bargaining parties in a contractual

exchange.

51

JOAN VINCENT, ANTHROPOLOGY AND POLITICS: VISIONS, TRADITIONS, AND

TRENDS 146 (Univ. of Ariz. Press, 1990).

52 See ROY FRANKLIN BARTON, THE KALINGAS: THEIR INSTITUTIONS AND

CUSTOM LAW 225 (Univ. of Chi. Press, 1949).

53 Even at the time, Barton’s interpretations, although based on primary research,

were not universally accepted by anthropologists. See A.L. Kroeber, Roy Franklin

Barton, 1883-1947, 51 AM. ANTHROPOLOGIST 91 (1949); JOAN VINCENT,

ANTHROPOLOGY AND POLITICS: VISIONS, TRADITIONS, AND TRENDS 140 (Univ. of Ariz.

Press, 1990).

54 BARTON, supra note 52, at 147.

55 ROY FRANKLIN BARTON, IFUGAO LAW 96 (Univ. of Cal. Press, 1969).


When confronted with facts similar to those which Barton

characterized as debt-collection under customary tribal law, Justice

Malcolm had a contrary opinion:

[I]t is not permissible to take the law into one’s own hands,

and to seize the property of a third person without being

authorized to do so, and entirely disregard the authorities

whose duty it is to settle disagreements between private

individuals and to give each one that which is his due, in

accordance with the law.56

In this way, ideas about law and custom in the Philippine Islands

constituted a live debate, memorialized in case law.

IV. RHETORICAL STRATEGIES

This Part delves into the case law that constitutes the core of legal

translation, to use the term introduced by Geertz above. Salient in this

corpus was the portfolio of rhetorical strategies deployed by Michigan

alumni and other colonial professionals who followed schools of thought

from North America into the Philippine factual context. Accordingly, this

Part is organized by tropes: reasoning by analogy, interpretation of intent,

limitation to facts, and assumption of natural order.57

These descriptive

tropes are representative rather than exhaustive. As a Philippine legal

scholar recently observed, “[j]urisprudence is replete with unexamined

causal claims that may not withstand more rigorous inquiry.”58

Here,

inquiry reveals the translating effect of lawyering in the social context.

Translation, in this social sense, occurs even if it is not part of the

professional consciousness of attorneys as they proceed with their

business of applying rules and regulations to recognized classifications of

parties.

A. Analogize to Classic Categories

A fundamental tool of legal reasoning is analogy, by which a court

may assimilate instant facts under pre-existing precedent. However, the

aptness of an analogy may become a matter of contestation. In Philippine

56

United States v. Villa Abrille, 36 PHIL. REP. 807, 808-09 (S.C., Aug. 29, 1917)

(quoting United States v. Vega, 2 PHIL. REP. 167 (1903)).

57 See STEFAN H. KRIEGER, Legal Reasoning, in OXFORD GUIDE TO AMERICAN

LAW 503 (Kermit Hall ed., 2002); Guyora Binder, The Rhetoric of Motive and Intent, 6

BUFF. CRIM. L. REV. 1 (2002); Michael R. Smith, Linguistic Hooks: Overcoming

Adverse Cognitive Stock Structures in Statutory Interpretation, 8 LEGAL COMM. &

RHETORIC 1, 2 (2011) (discussing “mismatch between the relevant statutory term and the

present facts”); Charles de Secondat Montesquieu, On the Laws in Their Relation with

the Nature of the Terrain, in SPIRIT OF THE LAWS 285 (Cambridge Univ. Press, 1989).

58 Marvic M.V.F. Leonen, Can the Law Survive as an Autonomous Academic

Discipline?, UNIV. OF THE PHIL. FORUM, Nov. – Dec. 2006, at 3.

2013 San Juan 15

history, analogy reflected layers of cultural assumptions. For example,

Justice Malcolm found time on the bench to scold a village gossip, called

an intriguera, saying: “Shrews must be tamed in the modern Philippines

just as they were in the lines of Shakespeare.”59

As an American man, the

Justice referenced a figure from the English Renaissance for this

Philippine woman, who was locally denominated by the term intriguera, a

descriptive term harking back to the Spanish colonial period. By the

relatively minor detail of re-characterizing a party from an intriguera to a

“shrew,” Justice Malcolm began the work of conceptual assimilation.60

The shrew in the words of the classic playwright came from a language of

imagination, which the court translated into one of decision.

B. Reinterpret the Intent of the Parties

Early twentieth-century American jurisprudence contains a shift

from individualism to paternalism.61

While this shift played out on the

U.S. mainland, the overseas territory offered a provincial version. One

strategic motif appeared as reinterpretation of the intent of the parties.

For example, while rhetorically vindicating an individual, the

Philippine Supreme Court intervened in the terms of a sale of land. On

April 29, 1915, a landowner named Juan Rubiato e Isles, seeking cash,

sold property worth 26,000 pesos (comprising 8 parcels with 2,500

coconut trees, in the barrio of Rizal, municipality of Nagcarlan, province

of Laguna) for 800 pesos, retaining possession, for a rent of 120 pesos per

quarter, with a pacto de retro (right of repurchase).62

Rubiato took the 800

pesos, but failed to pay any rent. A year later, the buyer, Hilaria Aguilar of

Manila, sued to enforce the terms of the sale.

At trial, Laguna’s Court of First Instance construed the pacto de

retro to be not a sale with right of repurchase, but a mortgage, such that

the 800 pesos was a loan secured by the property, and the rent amounted to

usurious interest of 60 percent – when the statutory interest rate was six

percent. In other words, even though Rubiato was a responsible adult,

married landowner, sui juris, who had availed himself of the professional

assistance of a solicitor (procurador judicial Manuel Gonzalez Vila of the

nearby municipality of San Pablo) to represent his interest in the pacto de

retro, the law implied a mortgage. Simply put, trial Judge Manuel Camus

decided that the terms of the sale were something other than what the

individual parties had agreed.

59

United States v. Tolosa, 37 PHIL. REP. 166, 168 (S.C., Nov. 19, 1917).

60 Cf. KRISTIN L. HOGANSON, FIGHTING FOR AMERICAN MANHOOD: HOW

GENDER POLITICS PROVOKED THE SPANISH-AMERICAN AND PHILIPPINE-AMERICAN WARS

(Yale Univ. Press, 1998) (raising questions about gender in Philippine-American history).

61 See HORWITZ, supra note 15, at 4 (discussing “individualist premises” that

became “increasingly anachronistic”).

62 Aguilar v. Rubiato & Gonzalez Vila, 40 PHIL. REP. 570 (S.C., Dec. 9, 1919).


On appeal, Justice Malcolm agreed. Speaking for the Supreme

Court, he said, “the inadequacy of the price which Vila obtained for the

eight parcels of land belonging to Rubiato is so great that the mind revolts

at it.”63

The mind to which Malcolm referred must have been his own, for

Rubiato had agreed to the price.64

An individualist judge would reason that

800 pesos of liquidity must have been worth the eight parcels to Rubiato.

The individual whom the court contemplated was not Rubiato, but

someone exhibiting the natural tendencies of mankind. Justice Malcolm

continued, “[t]he members of this court after most particular and cautious

consideration, having in view all the facts and all the natural tendencies of

mankind, consider that Rubiato is only responsible to the plaintiff for the

loan of ₱800.”65

The court substituted its own version of the “natural” man

for the actual party, Rubiato – consistent with the overarching ideals of

sociological jurisprudence at the time.66

Yet the court’s decisions to save individuals from themselves were

not uncontroversial, even among the judiciary. For example, the Supreme

Court overturned an order below where the defendants, after losing their

trial, failed to file their appeal (or request an extension to do so) within the

ten-day period provided by the applicable rule of civil procedure.67

The

reason for their tardiness, baldly put, was that their lawyer, A.S.

Crossfield, forgot. On behalf of his clients, Attorney Crossfield boldly

requested and obtained a nunc pro tunc order from Manila’s lower court

Judge Campbell, enabling him to file the appeal after the filing period had

expired.68

The Supreme Court, however, dismissed the appeal. Speaking

through Justice Fisher, the court upheld a strict construction of the ten-day

rule, quashing Crossfield’s bill of exceptions. Justice Malcolm was so

disturbed by the trial court’s retroactive order that had enabled Crossfield

to disregard the filing rule that Malcolm wrote a separate, concurring

opinion, to “protest against . . . usurpation of legislative power tending to

the prolongation of judicial proceedings.”69

In other words, Judge

Campbell should not have authorized the circumvention of the civil code

63

Id. at 573.

64 Cf. Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94

YALE L.J. 997 (1985) (latter-day critique of unconscionability in contract law).

65 Aguilar v. Rubiato & Gonzalez Vila, 40 PHIL. REP. 570, 574 (S.C., Dec. 9,

1919).

66 See generally BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS

(Yale Univ. Press, 1921) (social jurisprudence).

67 See Lim v. Singian & Soler, 37 PHIL. REP. 817 (Mar. 15, 1918).

68 Perhaps his influential reputation at the Manila bar, where he had formerly

been a judge, helped Mr. Crossfield to circumvent the procedural limitation.

69 Lim, 37 PHIL. REP. at 825.

2013 San Juan 17

provision, which was passed to promote court efficiency; another value of

sociological jurisprudence.

C. Couch Moral Judgment in Factual Context

The American period in the Philippines coincided with an

intellectual shift from a nineteenth-century positivist theory of objective,

mechanical or physical nature, to a more modern, moral view of worldly

events; paralleled in law by a shift from conceptual to sociological

jurisprudence.70

A series of cases illustrate an insular aspect of this shift

retrospectively. At the time, the Justices rationalized their decisions as

justified by the facts of each case.

The global extent of the challenge to conceptual jurisprudence is

memorialized in certain opinions of Justice Malcolm. In his first term on

the bench, he expressly brought sociological jurisprudence to the

Philippine Supreme Court. In United States v. Estapia,71

the majority of

the court acquitted the defendants of violating a statutory prohibition on

cockfighting. Even as this may have been a quotidian practice, it formed a

suitable case for a sociological announcement.

The majority found the defendants had staged an impromptu

cockfight under a mango tree in the province of Bohol, agreeing to share

in eating the losing fowl. Accordingly, the majority held that particular

cockfight was not of the type contemplated by the prohibition on

cockfights – which was a gambling event orchestrated in a cockpit

(gallera).

Justice Malcolm dissented. He attacked the distinction between a

cockfight under a tree and one in a cockpit as conceptualist: “The

majority decision discovers some peculiar sanctity in nature’s canopy as

opposed to a covering of nipa [i.e. fibers from a nipa plant] suitably

‘prepared’.”72

Alternatively, Malcolm argued for a realist interpretation of

the statute, to consider “what is for some the sole reason for law and is for

all progressive thinkers an aspect never to be neglected, the sociological

foundation of jurisprudence.”73

In Malcolm’s opinion, the deciding factor

was that “[c]ockfighting is detrimental to public morality . . . [i]t disturbs

the balance of society.”74

For this early realist, the balance of society hung

on a minor bet. Consequently, Malcolm would have upheld the conviction.

Moreover, Justice Malcolm concluded with a sweeping

announcement of sociological jurisprudence: “In the resolution of all

70

See HORWITZ, supra note 15, at 205 (discussing an “assault on conceptualism

by Progressives”).

71 United States v. Estapia, 37 PHIL. REP. 17 (S.C., Oct. 19, 1917).

72 Id. at 29 (Malcolm, J. dissenting).

73 Id. at 28.

74 Id. at 28.


questions, I begin with these queries: What is for the best interest of the

Filipino people? How under the law can the progress of the Philippine

Islands be advanced?”75

Estapia exemplifies the shift from conceptual to

sociological jurisprudence, between majority and dissenting opinions. At

the same time, Estapia shows how a local practice like cockfighting can

become the vehicle for a contemporaneous epistemological contest within

a branch of the Government, namely the high court.76

The epistemological contest continued when the court confronted

the nature of causation in the context of a car accident. While not a

historical event, the crash was a disturbance for the parties and a rhetorical

opportunity for the court.

On December 12, 1912, on Carlatan Bridge in San Fernando,

Amado Picart was riding a pony, when he was approached head on by

Frank Smith, Jr. driving an automobile at ten to twelve miles per hour.77

“[P]erturbed by the novelty of the apparition or the rapidity of the

approach,” Picart moved his mount to the right, not having enough time to

move left (the side of the road to which a traveler customarily should have

moved).78

The car properly moved to its left side, and finally swerved

because the pony failed to move to its left. The car struck the pony’s leg,

throwing off its rider; and ultimately the pony died of its injury. Picart

sought damages for the pony, medical expenses, and ruined clothes.

Speaking through Justice Street, the author of a learned treatise on

legal liability,79

the court analyzed the facts to assign responsibility for

causing the tort. Notwithstanding Picart’s improper position on the right

side of the road, the court applied the common-law rule that negligence

attaches to the tortfeasor with the “last fair chance” to avoid harm.80

The

court found that, when the pony did not move out of the way, the car

should have moved to its right.

Nevertheless, the court used objective rhetoric to justify its

decision, awarding two hundred pesos (then worth $100) to Picart, on the

basis of physical causation – rather than proper behavior as a traveler on

the road. The court concluded: “It is enough to say that the negligence of

the defendant was in this case the immediate and determining cause of the

75

Id. at 29.

76 Cf. CLIFFORD GEERTZ, Deep Play: Notes on a Balinese Cockfight, in LOCAL

KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (Basic Books, 1983)

(anthropological precedent for cockfighting as a theoretical vehicle).

77 See Picart v. Smith, 37 PHIL. REP. 809 (S.C., Mar. 15, 1918).

78 Id. at 811.

79 See THOMAS ATKINS STREET, FOUNDATIONS OF LEGAL LIABILITY: A

PRESENTATION OF THE THEORY AND DEVELOPMENT OF THE COMMON LAW (Edward

Thompson Co., 1906) (cited in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928)).

80 Picart, 37 PHIL. REP. at 814.

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accident and that the antecedent negligence of the plaintiff was a more

remote factor in the case.”81

In settling the dispute from Carlatan Bridge,

Picart v. Smith was consistent with objective theories of causation then

current (although changing) in American jurisprudence.82

Additionally,

Picart reflected the capacity of a colonial court to characterize principles

of the physical world, not just civil order.

Even as the court couched its reasoning in physics, the Justices

were not without sympathy for the pony rider bewildered by the onset of

the automobile – “the novelty of the apparition.”83

In this case, the court’s

adoption of the mechanical laws of nature (here, objective causation) as a

dispositive tort rule, and its sympathy for the rider bewildered by new

technology led to the same result: a finding of fault in the motorist.

Yet objective causation and ordinary expectations of technology

and behavior need not coincide. Justice Street’s sympathetic

characterization of the plaintiff’s viewpoint might suggest a possibility of

an alternative basis for assigning fault: transgression of ordinary

expectations. Such a suggestion of possibility within the court’s

argumentative characterization of facts would have been consistent with

an emerging sociological or realist impulse in American jurisprudence at

the time. It was prudent for the Philippine court to rest its decision on

mechanical causation; yet the court did not miss the opportunity to express

sympathy for a bewildered Filipino rider. While its rhetoric remained

mechanistic, the court’s sympathy seems to have been moved by social

facts.

A contemporaneous case shows how the court could shift to a

cutting-edge theory of causation given a suitable factual context. In the

case of a homicide styled United States v. Abiog and Abiog, three brothers,

identified as V, M and L, were cleaning a caua (kettle) in a field.84

A man

approached, engaged them in conversation, and insulted them. Enraged, V

went into their nearby house, where he got a revolver. When V came back

outside, M attempted to take the gun away from V, but was shot dead in

the scuffle. Then V shot the man who had provoked the fight. Finally, L,

using a bolo, attacked the man. The man died, and the court was left to

adjudicate the culpability of V and L.

The court struggled with the prevailing Anglo-American rule,

which the court found stated by, inter alia, a nineteenth-century Illinois

precedent:85

“If two or more are acting independently, and the actual

perpetrator of the homicide cannot be identified, all must be acquitted,

81

Id. at 815.

82 See, e.g. HORWITZ, supra note 15, at 33-64 (objective causation).

83 Picart, 37 PHIL. REP. at 811.

84 United States v. Abiog, 37 PHIL. REP. 137 (S.C., Nov. 13, 1917).

85 Campbell v. People, 16 Ill. 17, 19 (1854).


although it is certain that one of them was guilty.”86

To apply this

prevailing rule would mean to acquit the Abiog brothers of a heinous

killing. This the court would not do. Instead, Justice Street offered the

reasoning that “[i]t is sufficient that each should contribute materially to

the death” in order to punish both defendants.”87

Yet the court, speaking through Justice Malcolm, reached further,

rejecting outright the Anglo-American rule. The “territorial” status of the

Philippine Islands turned into an opportunity to reformulate the law in a

proto-realist fashion. First, Justice Malcolm limited the force of the Anglo-

American rule in the Islands to mere influence by saying, “the principles

of the Anglo American Common Law are for the Philippines, just as they

were for the State of Louisiana and just as the English common law was

for the United States, of far-reaching influence.”88

Next, in an excrescence

of colonial imagination, Justice Malcolm announced the existence of a

theretofore unknown “Philippine common law”: “What we really have, if

we were not too modest to claim it, is a Philippine common law influenced

by the English and American common law, the derecho comun of Spain,

and the customary law of the Islands and builded on a case law of

precedents.”89

Finally, Justice Malcolm banished conceptual

jurisprudence, in the form of the prevailing “technicality,” from his

imagined jurisdiction: “Into this Philippine common law, we can properly

refuse to take a rule which would estop other courses of reasoning and

which, because of a lack of legal ingenuity, would permit men guilty of

homicide to escape on a technicality.”90

Praising its own legal ingenuity,

the court found both Abiog brothers guilty, increasing the sentence of each

brother under the Penal Code from eight to twelve years imprisonment.

Justice Malcolm’s decision in Abiog constitutes an illocutionary

announcement of American judicial politics. Even as he proclaimed

autonomy from Anglo-American doctrine, Justice Malcolm asserted his

jurisdiction to contribute to and thus alter not merely the insular rules of

the Philippines, but the American common law as well. Just as the state of

Louisiana may enforce distinct rules while remaining an American state,

so could the Philippine territory assert differences within the American

federation.91

86

Abiog, 37 PHIL. REP. at 140.

87 Id. at 147 (Street, J. concurring).

88 Id. at 141.

89 Id.

90 Id.

91 See BLACK’S LAW DICTIONARY 254 (West Publishing Co., 5th ed. 1979). For

example, Louisiana applies rules of community property (inherited from the former

French and Spanish regimes in Baton Rouge), which are not recognized in Illinois or

states settled primarily by the British. Nonetheless, it is not the case that Louisiana law is

not American law. Instead, Louisiana applies a rule observed by a minority of states

2013 San Juan 21

Couched in Justice Malcolm’s grand colonial rhetoric92

was a legal

ingenuity that solved a problem with which American courts would

wrestle for a generation, specifically the causation of torts.93

Justice

Malcolm had anticipated the shift from a mechanistic notion of cause to a

realist one, using the remoteness of his colonial outpost to loosen the ties

of prevailing doctrine. Nevertheless, the decision was justified by the facts

of the case.

D. Assume Natural Organizing Principles

Congruent with plenary jurisdiction, the Philippine Supreme Court

had occasion to opine on everything from flora to fauna in the biologically

exotic region. The question of proper categorization of natural creatures

arose when fish-pond cultivators sought the tax exemption granted to

agriculture. Again, a relatively routine case contained rhetorical strategies

that translated from a language of social context – here farming – to one of

decision, or effective injunction of the tax collector.

This case presented the question of whether fish were agricultural

products for the purpose of a tax exemption for agriculture.94

Specifically,

the question was whether fish grown in pesquerias, ponds for growing

semillas into algae-eating bangus, were agricultural products. The answer

had revenue implications in the thousands of pesos.

Writing for the court, Justice Malcolm asked the question of social

reality: “Waiving all the technical definitions, does the ordinary man when

he speaks of agriculture and farming think of a farmer as a fisherman, and

when he speaks of fisheries does he think of a fisherman as a farmer?”95

On behalf of the ordinary man, Justice Malcolm concluded that fish were

(including the major economies of California, Texas and Florida), while Illinois enforces

a majority rule. Similarly, Justice Malcolm had the jurisdiction to announce a minority

rule in Abiog – which rule has since been adopted by the majority of States. In

anthropological terms, Justice Malcolm exploited the overlapping hierarchy of

jurisdictions in the American federal system, that constitutes a “segmentary” system, to

introduce an advance in legal doctrine. See Marshall D. Sahlins, The Segmentary

Lineage: An Organization of Predatory Expansion, 63 AM. ANTHROPOLOGIST 322 (1961)

(describing segmentary system).

92 This alludes to the contemporaneous “grand style,” characterizing the

transition from conceptualism led by Justice Holmes.

93 See Summers v. Tice, 199 P. 2d 1 (Cal. 1948). Thirty-one years later, a major

American court would reach a conclusion similar to that in Abiog. In 1948, in what was

to be hailed as a landmark decision, the Supreme Court of California, another former

Spanish state, held that where two hunters shot their guns, accidentally blinding a third

person, both gunmen were liable for the injury, notwithstanding indeterminacy of

"proximate cause" in a positivist sense.

94 See Molina v. Rafferty, 37 PHIL. REP. 545 (S.C., Feb. 1, 1918).

95 Id. at 554.


not agricultural products. Justice Malcolm qualified his opinion by citing

the authority of American appointed officials who had defined Philippine

agriculture: “The first Internal Revenue Law (Act. No. 1189) was enacted

by the Philippine Commission. It is plain that the Commissioners must

have had in mind agriculture as known to them in the United States.”96

Accordingly, fisheries were not eligible for the agricultural tax-exemption.

Before a 180-degree reversal of opinion, the court re-heard the

case with two justices not present at the original hearing.97

On behalf of

this second panel, the aptly named Justice Fisher reformulated the

question: “[T]he inquiry is not whether fish in general constitute an

agricultural product, but whether fish artificially grown and fed in

confinement are to be so regarded.”98

Justice Fisher likened the fish,

which fed on rooted algae (and were therefore apparently akin to other

products of the earth), to swine, domestic pigeons, and planted bacauan

trees – all agricultural products. Upon this latter inquiry, Justice Fisher

concluded that fish were agricultural products, and therefore exempt for

tax purposes.

Insisting upon his original opinion, Justice Malcolm dissented. His

dissent highlighted the arbitrariness of the judges’ conceptions: “This case

well illustrates how on the same facts, the same law, and the same

authorities, judges can arrive at diametrically opposed conclusions.”99

Here Justice Malcolm offered a frankly realistic assessment of the

judiciary’s decision making process.

A dissent in appellate composition may be comparable to an

epilogue in literary form. A dissent is an optional epilogue that completes

the structure of the opinion by constituting the binary opposite of the

majority decision, assuming the same facts and rules. By issuing both

majority and dissenting opinions, the court circumscribed the universe of

debate, underscoring its own authority to identify the relevant facts and

rules, which were the underlying assumption of legal consciousness.

While this case arose in a tax context, it incidentally contains

information about how the law – arbitrarily – could categorize the

biological world; through the legislators’ enactment of the revenue statute,

implemented by the tax collector, and interpreted by the courts. Such

categorization of flora and fauna was perhaps more insidious a colonizing

project than explicit governance of civil society. The court’s reversal

called attention to the arbitrary quality of its conclusions, where neither

fish nor fowl could object. While an assumption of natural production

96

Id. at 556.

97 See Molina v. Rafferty, 38 PHIL. REP. 167 (S.C., Apr. 4, 1918).

98 Id. at 173.

99 Id. at 175 (Malcolm, J. dissenting).

2013 San Juan 23

could justify either result, the rhetoric itself fortified the authority of the

court.

V. DISCUSSION

By reading case law for traces of rhetorical practices at the time,

this Article views jurisprudence as a normative restatement of social fact

that ascribes cultural meaning to past events. The judiciary gave American

officials an opportunity to characterize insular events. At the same time,

case law from the Philippine Reports presented above captured the process

by which events significant in the lives of the parties were reduced to

everyday proceedings in the lives of officers of the court (i.e.

routinization). Thus, this Article concerns both extraordinary and

quotidian aspects of colonial life.

First, jurists in the Philippines made assumptions about nature and

morality that extended beyond a strictly legal interpretation while reducing

Philippine culture to local color. In other words, the application of colonial

rule consisted not only of governmental determinations, but more totally

of natural and moral propositions. Second, jurists deployed rhetoric,

championing modern individualism in a paradoxically paternalist way. In

sum, jurists wove a colonizing project into the very fabric of legal rhetoric.

This subtle project extended beyond governance to culture in a holistic

sense.

Finally, the cases presented above show traces of an often forgotten

aspect of American legal history – that is, how various schools of thought

played out in a colony. The Philippines were a site of social engineering;

the aims of which would have dove-tailed with contemporaneous

American theories of sociological jurisprudence and then legal realism.

The court’s sympathy for the pony rider bewildered by the appearance of

the automobile or the “ordinary” man’s view of new farming techniques

were various examples of early twentieth-century judicial notice of social

reality. Whether American legality could sustain itself in the face of

Filipino reality remained to be resolved in a later phase of the imperial

experiment beyond the scope of this Article.

VI. CONCLUSION

Through routine techniques of reasoning by analogy, interpretation

of intent, limitation to facts, and even naturalization of ordering principles,

the Supreme Court in Manila reimagined Philippine life. The judiciary

was a refined branch of Government, following in the wake of the armed

branch which had forcibly subjugated the populace, yet no less an

effective part of the colonial apparatus. As noted above, historians have

estimated that the Philippine-American War took a toll of as many as a

million Filipino casualties.100

Assuming the fact of conquest, what remains

within the scope of this Article is the cultural mechanism of legal

100

See Francisco, supra note 26, at 19.


translation in the aftermath of war.101

This mechanism turned out to be

essentially the same as that in peacetime.

The colonial context calls attention to the nuanced, subconscious,

or even insidious effect of legal translation. In rhetorical strategies

deployed case-by-case, the court, police, tax collector, administrative

agencies, corporations, firms, and other institutions of law, set the terms of

engagement between parties – who were either colonized or colonizing

people. In some cases, the question could be the villagers’ right to play a

customary game. In others, the issue was culpability for homicide. The

plenary jurisdiction of the Supreme Court created a totalizing conceptual

authority.

All of this took place in an insular territory, with ripple effects in

the U.S. capital, which had appellate review over the Philippine

jurisdiction, which in turn styled itself as judicially independent within the

American federation. In Washington, D.C. the work of legal translation

occupied the greatest minds of the time, with Justice Taft, who had

launched his career on the colonial circuit, wrangling with Justice Holmes

over the distinction between a penalty and a tax in the Philippines.

Bringing Philippine appeals up to the North American bar gave them an

importance that raises the point that legal restatement of social fact is not

an inherently asymmetric exercise. While legal translation occurred in the

colonial context, it was also the subject of the contest of wits between U.S.

Supreme Court justices, who would have had Olympic proportions with

respect to a Filipino case.

Anywhere that a legal regime prevails, lawyers strive to put

clients’ and other parties’ claims into legally cognizable terms. This legal

work constitutes the subject of cultural jurisprudence that this Article

names, bringing it into consciousness as such. The bar, categorically

assuming the distinct existence of fact and law, naturalizes cultural

translation within the rhetoric of professionalism. An attorney’s

authoritative restatement of their claims can have an affirmative, almost

therapeutic, effect on some clients.

In conclusion, the rhetorical strategies of law endemic throughout

civilizations are as effective as they are subconscious. By comparatively

articulating these techniques, cultural jurisprudence can have an analytic

impact on case law of all sorts, whether from a particular historical period

or a more current context.

101

See, e.g., FERGUSON, supra note 31, at 1-29; THOMPSON, supra note 12, at

132-22; DANIEL BOONE SCHIRMER, REPUBLIC OR EMPIRE: AMERICAN RESISTANCE TO THE

PHILIPPINE WAR (Schenkman Publishing Co., 1972).

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