Philo of Law Notes

7/23/2019 Philo of Law Notes

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PHILOSOPHY OF LAW

• Questioning the fundamentals we normally take for granted

• In politics: “freedom”, “equality”, “social justic”

• Rembrandts !"# !$% &"I'%(%&"#R( )*+-.: it takes two to philosophi/e and philosophy is a shared search for truth

• 0 philosopher seeks the following:

• 1eeper understanding of concept

• "ow it actually functions in our thoughts and li2es

• %ther ways it might be used

• &ossible dangers of its use• "ow it does or could relate to other key concepts

• &hilosophy is a quest for rational understanding of the most fundamental things3

• &hilosophy raises important questions:

• "ow are we to go about finding answers to all these questions of ours4

• 5an we e2er know really know4

• 0nd e2en if we know, how will we be able to be sure that we know4

• “&hilosophy begins in wonder” )&lato.

• 6arious !itles

• 7urisprudence

• 8rom the 'atin prudencia )prudence, practical knowledge or skill. and juris )law.

• %riginally meant “knowledge of or skill in law”

• 0lso meant “case law” or “body of law built up by the decisions of particular courts”

• 955, 0rticle -:

• “7udicial decisions applying or interpreting the laws and the 5onstitution shall form part of the legal

system of the &hilippines”

• 7udicial decisions are commonly considered as &hilippine 7urisprudence3

• !he study of jurisprudence is not knowing, understanding or analy/ing the law of particularcountry but

in2estigates what is common to systems of law, the shared features of actual legal systems3

• 5ourse in jurisprudence would need to eamine from an eternal perspecti2e and from different eternal

disciplines )historical, anthropological, sociological, psychological, economic, ethical.

• 7urisprudence 2 'egislation

• 7urisprudence concerns the knowledge of law as a science combined with the art or skill of applying

it

• 'egislation is the science of what ought to be done towards making good laws, combined with the art

of doing it3

• 'egal !heory

• 0n aspect of jurisprudence which deals with the question “what is the nature of law4”

•

1eals with “law as it is” )sole concern of legal theory. as opposed to “law as it ought to be” )legislation.• %n ideal law as well as on procedural and substanti2e justice, legal theory should not just be concerned with

law as it is but with law as it ought to be3

• &hilosophy of 'aw

• 8ocuses on questions jurisprudence may regard as peripheral such as inquiry of other legal phenomena

)justice, liberty, punishment.

• Inquires not only on nature of law and other legal phenomena but also the rational consideration of normati2e

issues related to law )like obligation to obey the law, enforcement of morality, the problems of ideal justice,liberty, punishment.

• !he common obser2ation is: the term “philosophy of law” is often used in courses handled by philosophy faculty while

“jurisprudence” or “legal theory” by those in law faculty3

• !he subject is not part of ;ar #ams3

• (tudents are obsessed in passing law school and bar eams3

• (tudying law is knowing what the law says, memori/ing and applying3

• $hat is absent is the reflection, creati2ity and call to genius: a man who sess how all the the law provides leads (or does not

lead) to a more human and humanly ordered society• $hy important4

• In order to determine which problems ha2e already been clarified significantly so that we can build upon a foundation

pro2ided by pre2ious thought3

• !o sketch upon which philosophical ground each particular constribution rests )from which general philosophy it has

emerged.

!H" #$""%S (also &Pre'Socratic Philosophers)

• &hilosophy begins when human beings start trying to understand the world, not through religion but through R#0(%9

• ;egan among early <reeks )+ th, =th, and >th centuries ;5.

• #arliest questions:



• $hat is the world made of4

• $hat holds the world up4

• !HAL"S ? world made of single element ? water

• !hales thought that the earth is floating on water, emerged out of water and is constituted of water

• 9ow, he was right of a single element )all materials ae reducible to energy. but mistakenly supposed this to be water

• AAI*A+"$ , pupil of !hales

• !he earth is not supported by anything at all@ it is a solid object hanging in space and is kept in position by its

equidistance from e2erything else

• "e did not think of earth as globe as it was e2ident to him that we li2e on a flat surface• !he earth remains stationary

• AAI*""S ? pupil of 0naimander

• !he earth was flat and must be held up by something

• H"$A-LI!.S ? pupil of 0naimander

• !wo ideas

• .nity o/ Opposites

• the path up the mountainside and the path down the mountainside are not two different paths

running in opposite directions, they are one and the same paths

• (trife and contradiction are not to be a2oided, they are what come together to make up the world

• "verythin0 is Flu1

• Reality is inherently unstable, e2erything is in flu all the time )e2erything is changing.

• !his idea is true as nothing in this world is permanent, e2erything is changing all the time

• "eraclitus is telling us that we cannot find something stable, change is the law of life, we can ne2er

escape it

• PY!HA#O$AS ? one of his gifts being for mathematics

• $e ha2e to learn &ythagors !heorem at school

• "e introduced the idea of “square” and the “cube” of a number, applying geometrical concepts to arithmetic

• !hought to ha2e in2ented the word “philosophy” and who first applied the word “cosmos” to the uni2erse

• (ome great philosophers are mathematicians )1escartes ? analytic geometry and 'eibni/ ? calculus.

• "OPHA"S , human 2iews of things are human creations including what we take to be our knowledge

• ;y learning more and more, and changing our ideas in the light of what we learn, we may get nearer to the truth but our

ideas remain always ours and there is always an element of guesswork3

• PA$*"I+"S ? there can ne2er ha2e been nothing and therefore it cannot be true to say that e2erything came out of nothing3

#2erything must always ha2e eisted3 8or a similar reason it is not possible for anything to pass into nothing3 !herefore not onlymust e2erything be beginningless and uncreated, it must also be eternal and imperishable3

• "*P"+O-L"S ? e2erything was made up of four different elements that are perennial: earth, water, air and fire

• "e tried to reassert the reality of the e2erAchanging world of sensory eperience and also the plurality of the world

• "e said “#ach man belie2es only his eperience”

• A!O*IS!S )'eucippus and 1emocritus. ? e2erything is made up of atoms that are too small to be seen@ all that eists are atoms

and space

• 0toms themsel2es are uncreated and indestructible

• 0ll change in the uni2erse consists of atoms

• “atom” comes from <reek word meaning “cannot be cut”

• &reA(ocratic philosophers were concerned of the nature o/ the world2 not human nature

• !he most famous of all <reek &hilosophers:

• SO-$A!"S ? $hat matters most is how we ought to li2e )father of moral philosophy.3

• (ocrates basic question: $hat is justice4 $hat is good4 $hat is right4 $hat is just4 If we knew the answers, it would

ha2e a profound effect on the way we li2ed3

• "e established the method of trying to get at truth by persistent questioning3

• "e did not think he knew the answers but he saw noAone else knew them either

• "e established a method known “dialectic” )method of seeking truth by a process of question and answer.

• !his is used particularly in teaching method

• "e asserted that he knew nothing )different from (ophists who presumed to know e2erything.

• (ocrates wrote nothing but he was known through &lato, his pupil

• PLA!O , two worlds )e2erAchanging world presented through senses and another world ? an abstract realm independent of time

and space, accessible only to the intellect.

• "is ideal concept of the (tate )man on a large scale ? perfect organism, a body formed of se2eral organs which together

make its life possible.

• &arallel between the (tate and indi2idual

• Indi2idual )B parts or faculties: reason which dominates, courage which acts, sense which obeys.



• (tate )B classes: wise ? destined to dominate, warriors ? who must defend the social organism, and artisans and farmers

? who must feed it.

• 0s the indi2idual is dominated by reason, so is the (tate by the class which represents precisely wisdom ? the

philosophers

• !he (tate dominates human acti2ity in all its manifestations@ upon it rests the duty to promote good in its e2ery form

• !he power of the (tate is limitless, all comes under the competence and the inter2ention of the (tate

• !his is opposed to Cants 'egal (tate )there are wellAdefined limits on the action of the (tate.

• A$IS!O!L" Aunlike &lato, there is only one world )world we li2e and eperience.

• "e mapped out basic fields of inquiry )now known as logic, physics, political science, economics, psychology,

metaphysics, meteorology, ethics.

• "e also in2ented technical terms )energy, dynamic, induction, demonstration, substance, attribute, essence, property,

accident, category, topic, proposition, and uni2ersal.

• "is /our causes3 material cause, efficient cause, formal cause and final cause

• “Dan is by nature a political animal” A the true purpose of go2ernment is to enable its citi/ens to li2e a full and happy life

• "e hints the distinction between the powers of the (tate )legislati2e, eecuti2e and judicial.

• !he supreme good is happiness

• !he (tate is a necessity, a necessary union directed toward the purpose of perfection of life@ the indi2idual cannot be

properly thought of without the (tate

• !he (tate regulates the life of the citi/ens by means of laws )content of laws is 7ustice, principle of justice is equality

applied in 2arious ways )distributi2e justice, correcti2e justice.$hat follows are -ynics2 Sceptics2 "picureans and Stoics

• !hey are concerned with how a ci2ili/ed man is to li2e in an insecure, unstable and dangerous world

•-YI-S )0ntisthenes and 1iogenes. ? proclaimed that they wanted no go2ernment, no pri2ate property, no marriage and noestablished religion@

• 'i2ing like a dog )the word cynic comes from <reek 4yni4os which means “like a dog”.

• !he difference between true 2alues and false 2alues was the only distinction that mattered )all social con2entions ?

distinctions between yours and mine, public and pri2ate, naked and clothed, raw and cooked ? are nonsense.

• 6irtue is the only good consisting of modesty )wise man has no wants and despises that which ordinary man desire.@ a

forerunner of 5hristianity

• S-"P!I-S )&yrrho ? arguing both ways.

• 8or almost e2erything belie2ed by the people in one place, there semm to be people somewhere else who belie2e the

opposite@ normally the arguments are equally good on both sides

• 0ll we can do is go by things as they appear but appearances are notoriously decepti2e so we should ne2er assume the

truth of one eplanation rather than the other3 !he best thing was to stop worrying and just go with the flow, swim alongwith whate2er customs and practices pre2ail

• !he most famous (ceptic philosopher is +A5I+ H.*"

• !o li2e at all, we ha2e to perpetually to make choices, decisions and this forces us to make judgements about the thingsare, whether we like it or not

• (ince certainty is not a2ailable, we ha2e to make the best assessments we can of the realties we face

• "PI-.$"AS )#picurus.

• Its aim was to liberate the people from fear, not only fear of death but fear of life

• “1eath is nothing to us” A anyone who genuinely grasps that truth is liberated from fear of death

• (ince nonAeistence is our own inescapable destiny, we should make the best of the only life we ha2e@ pleasire is the

only good

• 8or #picurus, man was engaged in a continuous struggle with other men, this struggle is abolished with formation of

(tate@ 'aw is only a pact for the sake of utility and the (tate is the result of an agreement which men could break whenthey failed to find the utility

• S!OI-S )Eeno.

• !here can be no authority higher than reason

• $e are one with nature and there is no higher realm so there can be no questions of our going anywhere “else” when we

die

• !hey concei2ed the ideal of a wise man )must be kept in 2iew by e2ery man because this is imposed on him by right

reason.@ man is by nature a participant in a 'aw which is uni2ersally 2alid

• $O*A 6.$IS!S )5icero.

• 'aw is not the product of choice but is gi2en by nature

• 5icero obser2es that not e2erything which is put down as 'aw is just for in such case e2en the laws of tyrants would be

'aw

*I++L" A#"S

• PA!$IS!I- P"$IO+ )early 5hristian writers: !ertullian, 5lement of 0leandria, %rigen, 'actantius, 0mbrose, (t3 0ugustine.



• 8rom beginnings of 5hristianity to 5harlemagne

• (t3 0ugustine etols the 5hurch and communion of souls in <od as supreme end of man )compared to <reeks which is

(tate.

• #arthly (tate has praiseworthy purpose and itself comes from di2ine will but it is always subordinate to the hea2enly city

)5hurch.

• S-HOLAS!I-IS*

• Redisco2ering and restoration of <reek &hilosophy but studied with dogmatic approach

• $hile conser2ing the dogmatic character, (cholastic &hilosophy tried to de2elop religious dogmas with a rational

analysis

• St !homas A7uinas

• di2ision of laws )B orders of laws: *3 le1 aeterna ? di2ine reason itself which go2erns the world@ 3 le1 naturals ? directly

knowable by men through reason being precisely a participation of the eternal law in the rational creature accroding tohis own nscapacity@ B3 le1 humana , an of man through whichn in2entio mo2ing from principles of natural law oneproceeds to particular applications

• (tate is subordinate to the 5hurch which it must always obey@ a (tate which is in opposition to the 5hurch is not

legitimate

• (tate is a natural product )deri2es from the social nature of man. necessary for the satisfaction of human needs

• Dan e2en though free is considered as a rule subordinate to public power )ecclesiastical or ci2il.3 "e is no longer the

center, author of laws but simply be subject to them3

*O+"$ S-I"-"

• -OP"$I-.S !O "W!O

• icolaus -opernicus )founder of modern astronomy. proposed the idea the sun, not the earth, is the center of our solar system

• #alileo asserted that the earth rotates on its ais and that it re2ol2es round the sun@ all bodies fall at the same 2elocity regardless

of their weight pro2ided they are not interfered with by some other pressure

• ewton worked out the law of gra2itation and demonstrated that it is the force of gra2ity that keeps the planets mo2ing in orbitts

around the sun@ the consequences of his work for philosophy made philosopher to take full account of the new science in thate2ery description of reality had to incorporate in a plausible way the reality re2ealed by science3 0lso any account of the nature of knowledge and on the way it was arri2ed at )its foundations. had to apply to science if it was to command credibility

• *A-HIA5"LLI ? he discusses the arguments for and against the different forms of go2ernment

• "e pointed out that the means is the most efficacious and 2alid for attaining the desired result@ Dachia2ellism in politics

has a bad meaning in the famous formula “the end justifies the means”

• 8O+I ? in e2ery (tate there must be a supreme power which is one and indi2isible@ there is no (tate without so2ereign power

• #ssential characteristics of so2ereignty are a9soluteness and perpetuity )there is no right to rebel against a tyrant and

there is no right on the part of citi/en against the (tate@ freedom is sacrificed to the authority of the (tate.@ so2ereigntyincludes the right to make laws@ he who makes the laws cannot be subjected to them but remains superior to them

• F$A-IS 8A-O , the first to see that scientific knowledge could gi2e men power o2er nature@ the ad2ance of science could be

used to promote human plans and prosperity

• "ow to ad2ance knowledge of the natural world4 8ollow a controlled and systematic procedure

• Introduces the concepts of induction )particular to general. and deduction )general to particular. in disco2ering

scientific law

• !HO*AS HO88"S

• Dan is naturally an egotist who seeks only his own good and is insensible to that of others3 In this state of nature )there

is a permanent state of war between e2ery indi2idual because each one seeks his own ad2antage., the indi2idual right isunlimited3 Dan has to lea2e this state of nature, gi2e up his original right and turn it o2er to the a soverei0n whoimposes laws and establishes what is just and unjust, what is licit and illicit3 !he (tate has unlimited power and nociti/en can claim rights o2er it3

• In "obbes &hilosophy, demand for order is attained but freedom is sacrificed3 5onser2ation is present in man but he

also has compassion for others3

• !he first modern materialst )physical matter is all there is: the uni2erse is corporeal, that is body, e2ery part of body is

likewise body, e2ery part of the uni2erse is body, that which is not body is nothing and consequently nowhere.

$A!IOALIS*

• $"" +"S-A$!"S )in2ented the branch of geometry called analytical geometry.

• !hat I eist is indubitable@ I know with absolute certitude that I am a being which has conscious eperiences (-o0ito

er0o sum ' &I thin42 there/ore I am:)

• $hate2er is presented clearly and distinctly to me as being true ? not by my senses )sensory input is inherently

unreliable. which I already know to decei2e but my mind )ga2e birth to rationalism.

• 8""+I-! SPIO;A )one of great rationalists together with 'eibni/: rationalism is a de2elopment is philosophy that knowledge

of the world can be gained by use of reason alone.



• !here eists one substance he called “1eus si2e natura”

• 0ll that happens in the world is an epression thereof and is absolutely perfect

• "e argued that freedom of speech was necessary in order to secure public order@ “the real disturbers of the peace are

those who, in a free state, seek to curtail the liberty of judgment which they are unable to tyranni/e o2er”

• WILH"L* L"I8I!;<L"I8I;

• 0ll truths are two kinds: truth o/ reasonin0)the truth of the statement can be determined by eamining the statement

without to look outside of it, now called analytic statement. and truth o/ /act)the truth of the statement can bedetermined by eamining the facts, now called “synthetic statement”.

• SA*."L P.F"+O$F

• In his theory of the state, all men were free and equal but ha2ing no guarantee of their rights were liable to be

o2erpowered so they had to submit themesel2es to a so2ereign, to constitute the (tate

• "e distinguishes innate ri0hts)proper to isolated man before he associates with other men. and ac7uired

ri0hts)acquired by man insofar as he belongs to a society, family and to the (tate.

• $I-HA$+ HOO%"$

• "e asserts that by 9atural 'aw, in conformity with 1i2ine 'aw, political power is based upon the consent of the entire

society because no man has by nature the power to command a multitude of men3 If common consent is lacking thepower is illegitimate3

• 6OH *IL!O

• "e sustains liberty of conscience and freedom of press and justifies the killing of a tyrant

"*PI$I-IS*

• Rationalists said that the only reliable knowledge comes from use of reason3

• #mpiricists insisted that information about the world eternal to oursel2es can come to us only through our senses@ the mind

workds in appraising and organi/ing this information and drawing inferences from it and connecting it with other things but theoriginal source of data can only be sensory eperience

• 6OH LO-%" )knowledge eists only by means of sensation and is based on sensation.

• Dan is naturally social@ there does not eist a state of nature without society

• In the state of nature, man has already certain rights )right to personal liberty, right to work, right to property. and what is

lacking is the authority which can guarantee these rights3 !o assure themsel2es of such guarantee, indi2iduals mustrenounce a portion of their natural rights, must consent to certain limitations and this is done by contract

• "e who is in2ested with public authority cannot use it arbitrarily because the authority itself has been confided to him for

the protection of the rights of the indi2iduals3 If he abuses it he 2iolates the contract and the people regain ipso factotheir original so2ereignty3

• !he (tate is not a negation but a reaffirmation, with certain limits of natural liberty which finds therein its guarantee3

• !he go2erned retains their indi2idual rights e2en after the go2ernment has been set up@ so2ereignty ultimately remains

with the people

• "e belie2ed that all human beings ha2e the potential for de2elopment and that the preser2ation of their rights and their

freedoms is the only purpose of go2ernment3

• #"O$#" 8"$%"L"Y

• $hat eists are subjects and their eperiences, there is nothing else3

• "e belie2ed that we percei2e not things but qualities such as colour and that these qualities are relati2e to the percipient3

• +A5I+ H.*"

• 5ertainty, in matters of fact, is not a2ailable to us@ we deal in hopeful probabilites, not in certainties

• 0part from mathematics, we know nothing for certain but we still ha2e to li2e and to li2e is to act@ all actions ha2e to

based in assumptions about reality

• 7ustice is not deri2ed from an original sentiment but from the reflection and calculation of what is useful3 (ociety has a

natural foundation in the human spirit3

• "+*.+ 8.$%"

• Ina de2eloped society, tradition embodies the accumulated wisdom and eperience of many generations, it is likely to be

a more reliable guid to action that any one persons opinion

• #ach generation needs to regard itself not as owning the assets of society but as taking care of them and which it is its

duty to pass on to future generations3

• <o2ernments ha2e to deal with people as they are, unequal in talent, miture of good and bad@ it is not intellectual

brilliance that is called for in go2ernment but sound understanding of people and the ways of the world3

• 6"A'6A-=."S $O.SS"A.

• 7udgments should be based on requirements of felling, not reasons

• B re2 ideas: *3 ci2ili/ation, a bad thing )human beings are corrupted by eperiences in society@ answer4 5hanges in

education )practice and eample.

• 'awAmaking and lawAchanging: all people coming together, deliberating and 2oting

• “'egislators” A charismatic leaders who instincti2ely understood the general will and drafted legislation themsel2es then

persuaded people to accept it )illAinformed, undisciplined and shortAsighted legislati2e body.

• I**A."L %A! )gain knowledge through both eperience and understanding: &"#9%D#90' 2 9%FD#90'.



• “;odily apparatus )= senses, brain and central ner2ous system. ? perception, feeling, memory, thought or whate2er are

apprehended through this but it has limitations )i3e3, photograph and sausages.

• Cnowledge ? anything else )i3e3, thoughts or ideas in brain. may eist but not capable of apprehension or cannot be

registered by eperience or he called “transcendental”

• A$!H.$ S-HOP"HA."$

• "e argued that the empirical world eists for the eperiencing subject only as representation3 !he search for the “thingA

inAitself” behind the representation is futile if we turn our thoughts to the natural world3 ;ut we too are the “thingAinAitself”and it is dual nature that gi2es us the key to the nature of all reality3

•-OF.-IAIS* )Cung 8uAt/u.

• &hilosophical and ethical influence in 5hinese society

• Foundations3 filial piety, respect for tradition and rule “what you do not want done to you, do not do to others”

• 8.++HIS*

• "istorically began at 9orth India, man called (iddhartha <autama attained “enlightenment”, the ultimate truth by which

people are freed from the cycle of rebirth

• > o9le !ruths3 *3 life is inherently unsatisfactory and a burden, eperience of ine2itable suffering@ 3 suffering is caused

by endlessly grabbing at things, grasping, wanting, car2ing@ B3 cessation of suffering can be found through ceasing tocra2e or want@ >3 cessation can be achie2ed by 9oble #ightfold &ath

• *AO ;"+O# )principal re2olutionary thinker in 5hinese 5ommunity &arty.

• (ought to adopt 5ommunism to 5hinese traditions using ruralAbased re2olution

• (et about creating 5ommunist &hilosophy based on reAeducation and “rectification”

• 6OHA #O!!LI"8 FI-H!"

• "e taught that the empirical world is the creation of the knowing mind

• $e act and in doing so we make choices and decisions, and in doing these things we ha2e direct eperience of our own

eistence ? not as objects in the empirical world but was moral agents )responsible for out actions.

• “$hat sort of &hilosophy one chooses depends on what sort of person he is”

• F$I"+$I-H S-H"LLI#

• 8amous for &hilosophy of 9ature: all life was a creation og 9ature which had at one time been a world of lifeless matter3

• Dan is part of 9ature, in him, nature has arri2ed at selfAawareness@ the whole 2ast onAgoing phenomenon of nature has

been a de2elopment towards selfAawareness, therefore the 2ery reason of reality is achie2ed in creati2e art )only in artcan the mind be fully aware of itself.

• #"O$# WILH"L* F$I"+$I-H H"#"L

• 5onceptuali/ed “<eist” A midway between spirit and mind, the ultimate eistenceof being3

• !he historical process that constitutes reality is the de2elopment of the <eist towards selfAawareness and selfA

knowledge, when this state is reached all that eists will be harmoniously at one with itself3 "e called this selAaware oneAness of e2erything “the 0bsolute”, so his philosophy was known as “0bsolute Idealism )compared de2elopment with5hrist and redemption.

• %A$L *A$

• Reality is not a state of affairs but an onAgoing historical process3

• !he key to understanding reality is to understand the nature of historical change3

• "uman beings ha2e to do if they are to li2e at all is to get the means of substinence, they must ha2e the wherewithal to

feed, clothe and house themsel2es and to meet other basic wants3

• &roduction of the means of life becomes a social acti2ity and not an indi2idual one3

• F$I"+$I-H I"!;S-H"

• “<od is dead”

• !here is no <od and we do not ha2e immortal souls3

• 'ife of ours is a largely meaningless business of suffering and stri2ing, dri2en along by an irrational force called “will”3

.!ILI!A$IAS

• 6"$"*Y 8"!HA*

• 7udging each action by its utility )usefulness in bringing about consequences.@ “the greatest good of the greatest

number” as guiding principle3• 6OH S!.A$! *ILL

• Indi2idual should be free to do whate2er he likes so long as he does not bring any significant harm to anyone else

• 0d2ocated equality for women

A*"$I-A P$A#*A!IS!S

• -S P"I$-"

• &ragmatism is a method for ascertaining the meaning of terms )theory of meaning.

• $e acquire knowledge by participating, not spectating )i3e3, learn to dri2e, we gain knowledge from our action as a

participant.

• !his contradicted the 2iew of scientists that knowledge is impersonal and is read from obser2ations3



"IS!"!IALIS*

• SO$" %I"$%"#AA$+ and *A$!I H"I+"##"$

• !he indi2idual finds his own identity a problem and hopes to unco2er the meaning in life through in2estigating the

mystery of his own eistence

• !hrough making choices we create our own li2es

"!Y*OLO#Y

• 5omes from <reek words:• philo )to lo2e.

• sophia )wisdom.

• %riginally meant “lo2e of wisdom”

• ;road sense, wisdom is still the goal of philosophy

• &hilosophy emphasi/es our li2ing desire to understand the world that surrounds us and the world within us

• !hings considered in definition

• (cience

• 5alled a science because the in2estigation is systematic just like other science

• 9atural 'ight of Reason

• &hilosophy in2estigates things using human reason alone )not laboratory instrument or tools or supernatural

re2elation.

• (tudy of all thinfs

• &hilosophy studies human beings, society, religion, language, <od, plants and many more

• Questions almost anything

0ncient and 5ontemporary 0pproaches

• Philosophy is the 4nowled0e (scientia) o/ thin0s 9y their ultimate cause or reasons (per ultimas causes vel rationes)

• (cholastic formation that goes back to 0ristotle

• “$e ha2e said in #thics what the differece is between art and science and other kindred faculties@ but the point of our

present discussion is this, that all men suppose what is called $isdom to deal with the /irst cause and the principle of things” )Detaphysics I, *.

• “8urther, the /inal cause is an end, and that sort of end which is not for the sake of something else, but for whose sake

e2erything else is@ so if there is to be a last term of this sort, the process will not be infinite3” )Detaphysics II, .

• !he task of philosophy of law is to un2eil the 0oal o/ the law and its underlyin0 motives )not moti2es of legislators

primarily but of society that creates laws and sustains them.

• !here are standards by which to determine whether a law should ha2e been passed )“natural law theory” for Dedie2al

philosophers, some “natural justice”.

• 0rticle *G 5i2il 5ode

• “In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended

right and justice to pre2ail3”

• SAL5A-IO v -"!$AL 8A% OF !H" PHILIPPI"S ?>? PHIL @?

• 5ourt treated the petition for declaratory relief as one for mandamus considering the gra2e injustice that would

result in the interpretation of a banking law3

• 5rime of rape committed by a foreign tourist against a 8ilipino minor and the eecution of the final judgment in

the ci2il case for damages on the tourists dollar deposit with a local bank, the 5ourt declared (ection **B of 5entral ;ank 5ircular 9o3 H+G, eempting foreing currency deposits from attachment, garnishment or anyother order of process of any court, inapplica9le due to the peculiar circumstances of the case3

• !he court held that “injustice would result especially to a citi/en aggrie2ed by a foreign guest like accused 3 3 3 “

that would “negate 0rticle *G of the 5i2il 5ode which pro2ides that in case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body inteded right and justice to pre2ail3”

• !he 5ourt therefore required respondents 5entral ;ank of the &hilippines, the local bank, and the accused to

comply with the writ of eecution issued in the ci2il case for damages and to release the dollar deposit of theaccused to satisfy the judgment3

• A*A!A v 6.+#" A.6"$O A* O $!6'?'@B2 S"P!"*8"$ CD E@

• 0t issue is the sentence of respondent judge finding the accused guilty beyond reasonable doubt of the lesser

offense of 0ttempted "omicide and not "omicide as charged3

• 7udge asserted that he relied on (ec3 , Rule **+ of the *H-= Re2ised Rules of 5riminal &rocedure, as

amended, which allows an accused indi2idual ? with the consent of the offended party ? to plead guilty to alesser offense, regardless of whether or not sich offsense is necessarily included in the crime charged, or iscogni/able by a court of lesser jurisdiction3

• (upreme 5ourt decided:

• (ection , Rule **+ of the *H-= Re2ised Rules of 5riminal &rocedure, as amended, allows the

accused in a criminal case to plead guilty :to a lesser offense regardless of whether or not it isnecessarily included in the crime charged3” !he fact of death of the 2ictim for which the accused



Rodrigo Fmpad was criminall liable, cannot 9y simple lo0ic and plain common sense 9ereconciled with the plea o/ 0uilty to the lower o//ense of attempted homicide3 !he crime of homicide as defined in 0rticle >H of the Re2ised &enal 5ode necessarily produces death@ attemptedhomicide does not3 5oncededly, hiatus in the law eists in the case before us, which could either lead to a misapprehension of (ection of Rule **+ or to outright confusion3

• "owe2er, the law is not entirely bereft of solutions in such cases3 In instances where a literal

application o/ a provision o/ law would lead to inustice or to a result so directly in oppositionwith the dictates o/ lo0ic and everyday common sense as to 9e unconsciona9le2 the 5i2il5ode admonishes judges to take principles of right and justice at heart3 Incase of doubt the intent is

to promote right and justice3 Fiat justicia ruat coelum. (tated differently, when a pro2ision of law issilent or ambiguous, judges ought to in2oke a solution responsi2e to the 2ehement urge of conscience3

• !hese are fundamental tenets of law3 In the case at bench, the fact of the 2ictims death, a clear

negation of frustrated or attempted homicide, ou0ht to have alerted the judge not only to a possiblyinconsistent result but to an injustice3 !he failure to recigni/e such principles so cardinal to our bodyof laws amounts to ignorance of the law and reflects respondent judges lack of prudence, if notcompetence, in the performance of his duties3

• $hile it is true, as respondent judge contends, that he merely applied the rule to the letter, the

palpably incongruous result ou0ht to have 9een a &red /la0: alertin0 him o/ the possi9ility o/ inustice !he death of an indentified indi2idual, the gra2amen of the charge against the defendantin the criminal case, cannot and should not be ignored in fa2or of a more epedient plea of either attempted or frustrated homicide3 $e ha2e held before that if the law is so elementary, not to know itor to act as if one does not know it, constitutes gross ignorance of the law3

•

atural Law !heory v Le0al Positivism• atural law: some laws depend for their “authority” on the logical relationship in which they stand to moral

standards )pre2ailing dominant theory in &hil ? predominantly Roman 5atholic country: cosmic justice or karma.

• 5icero: “whoe2er is disobedient is fleeing from himself and denying his human nature, and by reason

of this 2ery fact he will suffer the worst penalties, e2en if he escapes what is commonly calledpunishment”

• 5riticisms:

• 5oncept of cosmic justice or karma is contrary to e2idence@ due to free choices and

actions of man3

• 1a2id "ume: moral judgments are not true and they cannot be deri2ed from factual

premises alone3

• In order to attain justice and order in the world, there is a need for a di2ine plan or measure )(t3

!homas 0quinas calls it le aeterna@ impersonal forces of nature in (toic philosophy like 9atureitself.

•

Doral law as justice )0ristotle called in uni2ersal justice.@ justice also called righteousness3• Le0al Positivism: there is no instrinsic connection between law and morality )separable concepts.@ law is a

2alid law despite its lack of morality3

• #manates from the insight that law is a product of human endea2or or human will )compared to

natural law that law is product of reason ? not necessarily human reason but may be by <od or bynature.

• !as4 o/ philosophy is provide a person with &map: that 0ives coherence to his activities and that ma4es o/ human li/e a

meanin0/ul whole

• $hile science is effecti2e and efficient, it can be inhuman

• !here still remains the search for the “humanum”, the 2ision of being “fully human, fully ali2e”

• Philosophy is the endeavor o/ uncoverin0 the &meanin0: o/ phenomena

• In 5rim 'aw, the con2ict only sees the harshness of law@ complainant will see the law as 2indication: Is there anything

else more than these4

• (tatute, rule or order must conform to the 5onstitution: what is this phenomenon called “constitution”4

• 1e2elopment of 5onstitutionalism )D3 5urtis, !"# <R#0! &%'I!I50' !"#%RI#(3 6ol3 *.

• $hile thinkers were concerned of order, they were eager to put limits on state authority• !he idea of restriction by law by constitutionalism was de2eloped by 5oke, "arrington, "ooker and 'ocke

• 5oke

• 9either the Cing nor the &arliament was superior to the law

• 9o man shall imprisoned ecept by die process of the common law, the nati2e, #nglish law

• (&o person should 9e deprived o/ li/e2 li9erty2 or property without due process o/

law:2 5%9(!I!F!I%9, 0R!I5'# III, (#5!I%9 *.

• "arrington

• <o2ernment is the empire of laws and not of men

• &!he #overnment o/ the Philippine Islands is essentially a #overnment o/ laws and

not o/ men: )In Re: Dulloch 1ick, <3R3 9o3 *B-+, *+ 0pril *H*-, B- &hil3 >*.



• !he kind of law fiing the balance in lands is called 0grarian”

• "ooker

• !he ruler must act in the public interest and obser2e law

• 'aws might be changed but only by the “authors themsel2es”, not by indi2idual or group opposition

• 'ocke

• 5onsent is the basis of political power

• !he function of the state was limited to stated purposes

• &ower was held in trust and go2ernment ought to be dissol2ed if it was not ser2ing the purpose for

which it has been established

• Rebellion was justified but only after a long train of abuses, not o2er e2ery little mismanagement

• !he supreme power cannot take from any man part of his property without his consent

• !he legislati2e cannot transfer the power of making laws to any other hands for it being but a

delegated power from the people, they who ha2e it cannot pass it o2er to others

• !hey are to go2ern by promulgated laws, not to be 2aried in particular cases but to ha2e one rule for

rich or poor

• 'aws ought to be designed for no other end ultimately but the good of the people

• !hey must not raised taes on the property of the people without the consent of the people

• "ermeneutics apply )science of interpreting tets.@ calls for “dialoguing” )the law as well as its readers and interpreters

must speak alike.

• 5alls for deconstruction of pseudoAknowledge so that the richness of symbol and metaphor may truly emerge

• #ample: 5oncept of 9onA(uability of (tate

• A!O v Sps $A*OS2 #$ O E@>GC2 F"8$.A$Y C?2 CGEE

• Respondents disco2ered that a portion of their land in ;aguio 5ity was being used as part of the runway and

running shoulder of the 'oakan 0irport being operated by 0!%3

• Respondents agreed after negotiations to con2ey the affected portion by deed of sale to the 0!% inconsideration of the amount of &-,*=G3GG3 "owe2er, the 0!% failed to pay despite repeated 2erbal andwritten demands3 "ence an action for collection was filed and the defense is nonAsuability of state3

• Is the defense tenable4 9o, because it is an agency of the (tate engaged in an enterprise that is far from

being the (tates eclusi2e prerogati2e3

• &ractical considerations dictate the establishment of an immunity from suit in fa2or of the (tate3 %therwise,

and the (tate is suable at the instance of e2ery other indi2idual, 0overnment service may 9e severelyo9structed and pu9lic sa/ety endan0ered 9ecause o/ the num9er o/ suits that the State has to de/enda0ainst (e2eral justifications ha2e been offered to support the adoption of the doctrine in the &hilippines, butthat offered in &ro2idence $ashington Insurance 5o3 2 Republic of the &hilippines is “the most acceptableeplanation,” according to 8ather ;ernas, a recogni/ed commentator on 5onstitutional 'aw, to wit:

• “J0K continued adherence to the doctrine of nonAsuability is not to be deplored for as against the

incon2enience that may be caused pri2ate parties, the loss of go2ernmental efficiency and theobstacle to the performance of its multifarious functions are far greater if such a fundamentalprinciple were abandoned and the a2ailability of judicial remedy were not thus restricted3 $ith the

well known propensity on the part of our people to go to court, at the least pro2ocation, the loss o/ time and ener0y re7uired to de/end a0aist law suits2 in the absence of such a basic principle thatconstitutes such an effecti2e obstacle, could 2ery well be imagined3”

• Analytic tradition

• to descri9e that which is o9served through a logical account@ task of rendering a logical account of terms in law are to

be used

• %n “so2ereignty” )used in 5%9(!I!F!I%9, 0R!I5'# **, (#5!I%9 *.:

• “ (o2ereignty resides in the people and all go2ernment authority emanates from them3”

• In SAI+A+ v -O*"L"-2 D? S-$A ???2 (5 said A “!his is the concept of popular so2ereignty3 It

means that the constitutional legislator, namely, the people, is so2ereign3”

• "ow to do a logical account4 0merican political law, the belief in the “so2ereignty” of the people is a

cornerstone of the body politic3 -hishold v #eor0ia3

• “!o the 5onstitution of the Fnited (tates the term “so2ereign” is totally unknown3 !here is but one

place where it could ha2e been used with propriety3 ;ut, e2en in that place it would not, perhaps,ha2e comported with the delicacy of those who ordained and established that 5onstitution3 !heymight ha2e announced themsel2es “so2eAreign” people of the Fnited (tates: ;ut, serenely consciousof the fact, they a2oided the ostentatious declaration3”

• %n “mens rea”

• $hen the law requires that the offenders “intend to kill”, the judge should be prepared to render her

“measurement theory”, the 2erifiable indicia that will allow her to arri2e at a conclusion about the presence or absence of “intent”

• 8"$A+IO 5 -A2 "! AL2 #$ O L'>>?'B2 *A$-H ?G2 EE

• &etitioner )ladyAlawyer., formerly an election registrar of 5%D#'#5 whose job was field work, was

charged after her retirement from the ser2ice, with falsification of public documents for allegedlyha2ing made it appear in her daily time records that she was not absent from office when in fact shewas at the 5ourt of 8irst Instance of &angasinan attending to her cases3



• &etitioner admitted in all candor her appeareances in said court, claiming among other things that

she is not under strict obligation to submit a time record and that she did not reflect her appearancesin court in said record as they were for few minute duration only apart from the fact that she has astanding authority gi2en by the 5%D#'#5 to act as de oficio counsel3

• 58I rendered a decision finding her guilty as charged which was affirmed by the 5ourt of 0ppeals3

• (upreme 5ourt decision:

• “for a con2iction of the offense of falsification of public or official documents, defined and

penali/ed under 0rticle **, paragraph > of the Re2ised &enal 5ode, the requisiteelements thereof must be clearly established, namely: *. the offender makes in a

document /alse statements in a narration of facts@ . he has legal obligation to disclosethe truth of the facts narrated by him@ B. the facts narrated by him are absolutely false, and>. the per2ersion of truth in the narration of facts was made with the wron0/ul intent of injuring a third person

• attendant /acts and circumstances in the instat case no criminal intent to commit the

crime with which she is charged can be imputed against the petitioner

• If petitioner filled up her daily time record for the si days in question making it appear that

she attended her office from -:GG am to *:GG noon and from *:GG pm to =:GG pm, there ismore than color of truth in the entry made3 It is not shown that she did not report first toher office as #lection Registar of Rosales, &angasinan, before going to the courtroom justtwo meters away3

• &etitioner thus likened her appearance to going out for the usual coffee breaks3 !he

comparison is not e2en apt, for during the while she appeared in court, she was renderingser2ice more, if not wholly, for the public good, than just for her own wellAbeing as whenshe goes out for snack during the coffeeAbreak period3 !he court being only two meters

away from her office, she did not e2en ha2e to go so far as when one goes out for snack3• $hat is more, e2erytime she appeared in court, she surely must ha2e made this fact

officialy of record in the court proceedings, something which is not done with lea2ing theoffice room for coffee breaks3

• In fine, the entries in petitioners daily time records were not a9solutely /alse !he

alleged false entry may be said to ha2e a color of truth, not a downright and willfulfalsehood which alone would constitute falsification as a crime3

• !he e2ident purpose of requiring go2ernment employees to keep a time record is to show

their attendance in office to work and to be paid accordingly3 5loesely, adhering to thepolicy of no workAno pay, a daily time record is primarily, if not solely, intended to pre2entdamage or loss to the go2ernment as would result in instances where it pays an employeefor no work done3

• It is not criminally falsified if it does not per2ert its a2owed purpose as when it does not

cause dama0e to the go2ernment

• 5ILLA$"AL 5 P"OPL"2 #$ O E@EC@2 F"8$.A$Y E2 CGEC

• !he public outrage o2er the death of 'eonardo “'enny” 6illa ? the 2ictim in this case ? on *G

8ebruary EE led to a 2ery strong clamor to put an end to ha/ing3

• !his widespread condemnation prompted 5ongress to enact a special law, which became effecti2e

in E@, that would criminali/e ha/ing3 !he intent of the law was to discourage members frommaking ha/ing a requirement for joining their sorority, fraternity, organi/ation or association3Doreo2er, thelaw was meant to counteract the eculpatory implications of “consent” and “initialinnocent act” in the conduct of initiation rites by making the mere act of ha/ing punishable or malaprohibita3

• (upreme 5ourt decision:

• Re2ised &enal 5ode belongs to the classical school of thought3 !he classical theory

posits that a human person is essentially a moral creature with an absolute free will tochoose between good and e2il3 It asserts that one should only be adjudged or heldaccountable for wrongful acts so long as free will appears unimpaired3 !he basic postulateof the classical penal system is that humans are rational and calculating beings who guide

their actions with reference to the principles of pleasure and pain3 !hey refrain fromcriminal acts if threatened with punishment sufficient to cancel the hope of possible gain or ad2antage in committing the crime3 "ere, criminal liability is thus based on the free willand moral blame of the actor3 !he identity o/ mens rea ? defined as a guilty mind, aguilty or wrongful purpose or criminal intent ? is the predominant consideration !hus, itis not enough to do what the law prohibits3 In order for an intentional felony to eist, it isnecessary that the act be committed by means of dolo or “malice”

• !he presence of an initial malicious intent to commit a felony is thus a 2ital ingredient in

establishing the commission of the intentional felony of homicide3 ;eing mala in se, thefelony of homicide requires the eistence of malice or dolo immediately before or simultaneously with the infliction of injuries3 Intent to kill ? or animus interficendi ? cannotand should not 9e in/ereed, unless there is proff beyond reasonable doubt of such intent3

• 8raternity initiation rites ? does not automatically amount to the absence of malicious intent



or dolus malus3 If it is pro2en beyond reasonable doubt that the perpetrators wereequipped with a guilty mind ? whether or not there is a contetual background or factualpremise ? they are still criminally liable for intentional felony3

• 0s regards 6illareal and 1i/on, the 50 modified the 1ecision of the trial court and found

that the two accused had the anumus interficendi or intent to kill 'enny 6illa, not merely toinflict physical injuries on him3 It justified its finding of homicide against 1i/on by holdingthat he had apparently been motivated 9y ill will while beating up 6illa3 1i/on keptrepeating that his fathers parking space had been stolen by the 2ictim@s father3 0s to6illareal, the court said that the accused suspected the family of ;ien2enido Darque/, one

of the neophytes, to ha2e had a hand in the death of 6illareals brother3 !he 50 then ruledas follows:

• “!he two had their own aes to grind against 6illa and Darque/3 It was 2ery clear

that they acted with e2il and criminal intent3 !he e2idence on this matter isunrebutted and so for the death of 6illa, appellants 1i/on and 6illareal must andshould face the consequence of their acts3 3 3 “

• “full appreciation of the contet in which the supposed utterances were made”

• !he foregoing testimony of witness Darque/ re2eals a glaring mistake of substantial

proportion on the part of the 50 ? it mistoo4 the utterances o/ +ion /or those o/ 5illareal3 (uch inaccuracy cannot be tolerated, especially because it was the 50s primarybasis for finding that 6illareal had the intent to kill 'enny 6illa, thereby making 6illarealguilty of the intentional felony of homicide3 !o repeat, according to ;ien2enido Darque/stestimony, as reproduced abo2e3 It was 1i/on who uttered both “accusations” against 6illaand Darque/, 6illareal had no participation whatso2er in the specific threats referred to bythe 503 It was “;oyet 1i/on JwhoK stepped on JDarque/sK thigh”@ and who told witness

Darque/, “)I.to, yung pamilya nito ay pinapatay yung kapatid ko3” It was also 1i/on who jumped on 6illas thights while saying, “)!.his guy, his father stole the parking space of myfather3” $ith the testimony clarified, we find that the 50 had no basis for concluding theeistence of intent to kill based solely thereon3

• (5 agreed with the (olicitor <eneral that the ill moti2es attributed by the 50 to 1i/on and

6illareal were “baseless3” since the statements of the accused were “just part of thepsychological initiation calculated to instill fear on the part of the neophytes”@ that “JtKhere isno element of truth in it as testified by ;ien2enido Darque/”@ and that the “harsh wordsuttered by &etitioner and 6illareal are part of tradition concurred and accepted by all thefraternity members during their initiation rites3

• 0s to the eistence of anumus interficendi on the part of 1i/on, we refer to the entire

/actual milieu and conte1tual premise of the incident to fully appreciate and understandthe testimony of witness Darque/

• 1i/ons way of inflicting psychological pressure was through hurling makeAbelie2e

accusations at the initiates3 "e concocted the fictitious stories, so that he could “justify”

gi2ing the neophytes harder blows, all in the contet of fraternity initiation and role playing3#2en one of the neophytes admitted that the accusations were untrue and madeAup3

• $e cannot sustain the 50 in finding the accused 1i/on guilty of homicide under 0rticle >H

of the Re2ised &enal 5ode on the basis of the eistence of intent to kill3 Animusinter/icendi cannot and should not 9e in/erred unless there is proo/ 9eyondreasona9le dou9t o/ such intent Instead, we adopt and reinstate the finding of the trialcourt in part, insofar as it ruled that none of the fraternity members had the specific intentto kill 'enny 6illa3

WHA! IS LAWJ

• “#ssentialist”

• %ne that captures the true nature or essence of that which is being defined

• 0ristotle defined “man” as “rational being” for in rationality lies the true nature of manhood which distinguishes man from

all other beings in uni2erse

•%ne is not defining but eplaining what a group or class of things is in terms of its essence

• (tipulati2e

• &urpose is the linguistic one of enabling the reader to know when to use the word correctly and the criterion for logical

correctness is confined to the linguistic world3

• "owe2er, there is no logical criterion for correctness )a stipulation is nothing but a proposal or recommendation to use a

word in a certain way@ no rightness or wrongness about the definition because the definer creates the standard by whichcorrectness is to be judged.

• 'eical definition

• 5alled a “reporti2e” or “dictionary” definition

• !he kind of definition found in the dictionary and all it does is merely to report the actual usage of the word

• 0 definition is good or correct leical definition if it truly reflects how people in general actually use the word defined

• $hat a philosopher is looking for



• 0 philosopher, when conducting logical inquiry, is not looking for essentialist, stipulati2e or leical definition of law

• "e is in search of a definition which partakes of characteristics from all three but is in some sense more than just a

definition

• 5onceptual analysis of law

• 0 logical analysis of the concept “law”

• It seeks to find out what does or does not /ollow /rom2 what is or is not lo0ically presupposed 9y and what is or

what is not compati9le with the concept )'%<I50' 5'0RI8I50!I%9 %8 !"# 5%95#&!.

• #L&'I50!I%9 ? way to achie2e logical clarification when some sort of definition is achie2ed

• "ow is eplication done4

• "1amine the concept ? by looking at ordinary usage, how people actually use the term “law” while

communicating with other people )conceptual analysis using leical definitions.

• Puri/ication and re/inement ? since ordinary usage may be 2ague, ambigous or inconsistent or

e2en misleading, philosopher needs to go beyond the e2idence of ordinary usage and makesproposal as to how to regard the concept)affinity with stipulati2e definitions.

• Philosophical pulement ? it is not actually a definition that conceptual philosophy is after but

description of a special kind, of how we use words to pro2ide a deeper understanding of the world )ina way like an essentialist definition trying to capture the essence of reality.

%I+S OF LAW

• +escriptive laws

• merely describe uniformities or regularities in the world or nature

• merely a statement of how e2ents regularly do happen

• such laws cannot be 2iolated@ law may be amended to take account the anomaly and arri2e at more accurate description

of phenomena being described

• #3 (cientific laws )mere epressions of uniformities of science.@ #ternal 'aw of (t3 !homas 0quinas )mandates order

and harmony in entire uni2erse.

• Prescriptive laws

• do not describe but prescribe a type of beha2ior which is supposed to be obeyed

• require the doin0 or a9stainin0 /rom certain actions

• may be 2iolated@ if 2iolated, this does not mean that the law has been incorrectly formulated thus requiring amendment@

2iolator is subject to some for of sanction

• Cind of prescripti2e law which is concern of philosophy of law is positive law)known as municipal law. ? law of the state3

Regulates transactions between cti/ens, ci2il liability and criminal liability, prescribes remedies for wrongs and proper procedure for complaining and setting up defenses, required to be studied in law schools

• Positive Law

• Cinds and senses of positi2e law:

• 'aw in particular sense

• %ne specific law )law on rape.

• 'aw in generic sense )collection of laws or law embodying all criminal laws.

• 'aw in crimes against chastity )law on rape, adultery, concubinage, acts of lasci2iousness,

seduction, corruption of minors, white sla2e trade, abduction.

• 'aw as system of norms )embodies all laws, criminal, ci2il, commercial, procedural and of state

• 'aw in comprehensi2e sense

• 8ocus is not what law is but what law does or how it functions as agency of social control

instituted to meet the demands of society

• 0s such, law includes a great number of phenomena besides rules or norms such as

principles, standards, doctrines, processes and institutions

• 'aw is a working process and 2ital institution which has many links to and 2aried

fundamental roles of differing significance to play in society

+IFF"$"! F"A!.$"S OF LAW

• -icero ? the law be based on “right reason in accordance with nature”

• St !homas A7uinas ? law is an ordinance of reason for the common good promulgated by him who has authority

• Loc4e ? law is a product of a social contract preser2ing natural rights

• Austin , law is the general command of the so2ereign

• Savi0ny ? law is the product of the common consciousness or spirit of the people

• "hrlic , law is the inner order of human associations

%I+S OF L"#AL !H"O$I"S



• atural Law !heories

• %riginates to classical <reeks@ (ocrates, &lato, 0ristotle subscribed to it who were influenced by &ythagoras, "eraclitus

or &aremenides

• !here is an instrinsic, essential or conceptual connection or link between law and morality@ morality pro2ides the key to

the proper understanding of law

• 8or classical <reeks, the connection was in terms of 2alidity: positi2e law must conform to an objecti2e uni2esal morality

to be 2alid@ dictum A “an unjust law is not law” )(t3 0ugustine.

• -ommon Law !heory

• 0 2ariation of the 5lassical 9atural law !heory as it was postulated that the 5ommon 'aw was the embodimentof 7ustice or 9atural law

• &hilippines was classified as common law country:

• “0 sur2ey of recent cases in the &hilippine Reports, and praticularly those of the last few years,

shows an increasing reliance upon #nglish and 0merican authorities in the formation of what may betermed a &hilippine 5ommon 'aw, as supplemental to the statute law of this jurisdiction” )In Re(hoop, >* &hil3 *B.

• -lassical atural $i0hts !heory

• Its champion is 7ohn 'ocke and F3(3 5onstitution)natural rights theory is said to be the justification for

0merican Re2olution and guiding spirit with which the F( 5onstitution was drafted, particularly the 8irst !en 0mendments.

• Fnder this theory, any purported law 2iolati2e of natural right is in2alid or 2oid regardless of whether the right

has been constitutionally recogni/ed or not

• Procedural or *ethodolo0ical atural !heory

• adopted by 'on 8uller

• 'aw must satisfy eight procedural requirements in order to be 2alid which would then require law to ha2e aninternal morality

• <eneral

• &romulgated )published.

• &rospecti2e )nonAretroacti2e.

• Intelligible

• 'ogically consistent

• (uch as to require only the possible

• Relati2ely constant o2er time

• 0pplied as state

• -onstructive or 6urisprudential atural Law

• 0dopted by Ronald 1workin

• !he legal enterprise is constructi2e in the sense that law is being constantly interpreted and applied to satisfy

two requirements, that o/ /it and o/ soundness

• !he soundness criterion )which mandates that we must interpret the law in its best moral light. pro2ides law its

moral quality

• eo'!homists

• 7ohn 8innis, Dichael Doorem and Robert george

• Dodified the 2iews of (t3 !homas 0quinas and made them upAtoAdate

• 0dopted some 2iews of the doctrines of positi2ism )i3e3, law is authoritati2e and eclusionary. and rendered

5lassical 9atural 'aw !heory more plausible and acceptable

• Le0al Positivism

• &ro2ides the simplest eplanation of what law is ? law is a command, a hierarchy of norms, union of primary or

secondary rules, a social fact

• 0 product of human endea2or or human will

• #ncapsulated in the Roman maim: whate2er pleases the prince has the force of law”

• !o be 2alid, a law must simply follow the prescribed proper procedures for the enactment of law

• 'aw need not fulfill any kind of moral content to be 2alid

• Social Science !heories

• 'aw as product of human endea2or which has no essential connection to morality

• In contrast to positi2ism, it studies law as social phenomenon

• In describing law, it adapts an eternal or third person perspecti2e

• 'aw is seen merely as set of predictions and not as normati2e judgments which are to be obeyed or complied with)this

perspecti2e fails to capture laws binding character.

• $adical or -ritical !heories

• Radical theories include Darist 'egal !heory of Carl Dar, 8riedrich #ngels, 'enin and &ashukanis

• 'aw is percei2ed as nothing but representing the interests of the moneyed or propertied class in society

• 6iolence ? an eternal act characteri/ed by the use of physical force ) a0a9o v O9ad2 -5'B?EB2 Fe9 2 E2 cited in

*O$"OKS LAW +I-!IOA$Y 9y F8 *O$"O2 CGGG "+)

• $A CBC2 S"- ?3

• “ 0s used in this 0ct, )a. “6iolence against women and their children” refers to any act or a series of acts



commited by any person against a woman who is his wife ”

• 0rrest ? the taking of a person into custody in order that he may be bound to answer for the commission of an offense )$evised

$ules o/ -riminal Procedure2 $ule EE?2 Sec E+e/inition o/ ArrestMN Sanche v +emetriou2 >B S-A+ E@C2 CCD S-$A B?D2cited in *O$"OKS LAW +I-!IOA$Y)

• $A ?>>2 S"- > (4)3

• “Initial 5ontact $ith the 5hild” refers to the apprehension or taking into custody of a child in conflict with the

law by law enforcement officers or pri2ate citi/ens3 It includes the time when the child alleged to be in conflictwith the law recei2es a subpoena under (ection B)b. of Rule ** of the Re2ised Rules of 5riminal &rocedure

”

!H" ""+ FO$ PHILOSOPHY

• 'aw is not a selfAcontained discipline )answers to problems cannot be found internally, so resort to philosphy.

• 'awyer must be knowledgeable not just in law but also in logic )logical consistency and reasoning.

• Dore insightful understanding of legal problems )truth, meaning, 2alidity, right, duty, sanction, coercion, responsibility, intent,

moti2e, crime, punishment, tort, property, ownership, possession.

PHILOSOPHY -I!"+ I LAWS

• "O CG2 A$! E?

• 0rticle *-B3 0 person of age and in possession of full ci2il capacity and legal rights may adopt, pro2ided he is in a

position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family3%nly minors may be adopted, ecept in the cases when the adoption of a person of majority age is allowed in this !itle3In addition, the adopter must be at least siteen years older than the person to be adopted, unless the adopter is the parent

by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted3 )a, #% H* and &1 +GB.• !he interests and welfare of the child are of primary and paramount consideration in determining whether or not to set

aside a decree of adoption3

• “!he philosophy behind adoption statutes is to promote the welfare of the child3 0ccordingly, the modern trend is to

encourage adoption and e2ery reasonable intendment should be sustained to promate that objecti2e3” )&aulina (antos2s <regoria 0ran/anso, <3R3 9o3 'AB--, 8ebruary -, *H++.

• 8P CC2 S"- E

• (ection *3 5hecks without (ufficient 8unds ? 0ny person who makes or draws and issues any check to apply on account

or for 2alue, knowing at the time of issue that he does not ha2e sufficient funds in or credit with the drawee bank for thepayment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would ha2e been dishonored for the same reason had not the drawer, without any 2alidreason, ordered the bank to stop payment, shall be punished by imprisonment o/ not less than thirty days 9ut notmore than one (E) year or 9y a /ine o/ not less than 9ut not more than dou9le the amount o/ the chec4 which /ineshall in no case e1ceed two hundred thousand pesos2 or 9oth such /ine and imprisonment at the discretion o/ the court

•5A-A v -A2 ?@ PHIL ED

• &etitioners were con2icted of ;& which pro2ides for alternati2e penalties of fine or imprisonment or both fine

and imprisonment

• (5 deleted the prison sentence imposed upon petitioners and instead ordered them only to pay a fine

equi2alent to double the amount of the check

• (5 held:

• &etitioners are /irst'time o//enders !hey are Filipino entrepreneurs who presumably contribute to

the national economy3 0pparently, they brought this appeal, 9elievin0 in all 0ood /aith2 althou0hmista4enly2 that they had not committed a 2iolation of ;& ;lg 3 %therwise, they could simply ha2eaccepted the judgment of the trial court and applied for probation to e2ad prison term3 It would bestser2e the ends of criminal justice if in fiing the penalty within the range of discretion allowed by par3*, the same philosophy underlying the Indeterminate Sentece Law is obser2ed namely that of redeemin0 valua9le human material and preventin0 unnecessary deprivation o/ personalli9erty and economic use/ulness with due re0ard to the protection o/ the social order

• 0 fine double the amount of the check in2ol2ed would best ser2e the ends of criminal justice3

•

-I5IL -O+" OF !H" PHIL2 A$! D• 0R!I5'# HH3 'egitimate children and their descendants succeed the parents and other ascendants, withoud distinction

as to se or age, and e2en if they should come from different marriages3

• !he philosophy underlying this article is that a personKs love descends /irst to his children and 0randchildren 9e/ore

it ascends to his parents and therea/ter spreads amon0 his collateral relatives It is also supposed that one o/ hispurposes in ac7uirin0 properties is to leave them eventually to his children as a token of his lo2e for them and as apro2ision for their continued care e2en after he is gone from this earth )Dauricio (ayson 2s 5ourt of 0ppeals, <3R3 9os3-H>A=, 7anuary B, *HH.

• $A >C>2 Sec C?3

• &rinciple of estoppel does not operate against the go2ernment for neglect or omission of its officials tasked to collect

taes3



• !aes are the lifeblood of the <o2ernment and their prompt and certain a2ailability are imperious need3 Fpon taation

depends the <o2ernments ability to ser2e the people for whose benefit taes are collected3 !o safeguard such interest,neglect or omission of go2ernment officials entrusted with the collection of taes should not be allowed to bring harm or detriment to the people, in the same manner as pri2ate persons may be made to suffer indi2idually on account of hinsnegligence, the presumption being that they take good care of their personal affair3 !his should not hold true togo2ernment officials with respect to matters not of their own personal concern3 !his is the philosophy behind the0overnmentKs e1ception as a general rule, /rom the operation o/ the principle o/ estoppel )6era, et al3 2s38ernande/, et al3, <3R3 9o3 'AB*B*+>, Darch BG, *HH@ 0tlas 5onsolidated Dining M 1e2t 5orp 2s 5ommissioner of Internal Re2enue, <3R3 9o3 'AB+G**, 7an , *H-*.

• $A >C>2 Sec CE3• (ection *- Injunction not 02ailable to Restrain 5ollection of !a ? 9o court shall ha2e the authority to grant an

injunction to restrain the collection of any national internal re2enue ta, fee or charge imposed by this 5ode3

• ED $ules o/ Procedure2 $ule DG2 Sec E

• (ection * $ho may institute proceedings, and when ? (ubject to the pro2isions of the net succeeding section, a

person deprived o/ the possession of any land or building by force, intimidation, threat, strategy, or stealth or a lessor,2endor, 2endee or other person against whom the possession of any land or building is unlawfully withheld after theepiration or termination of the right to hold possession, by 2irtue of any contract, epress or implied, or the legalrepresentati2es or assigns of any such lessor, 2endor, 2endee, or other person, may, at any time within one year after such unlawful depri2ation or withholding of possession, bring an action in the proper Dunicipal !rial 5ourt against theperson or persons unlawfully withholding or depri2ing of poessession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs3

• (upreme 5ourt:

• &etitioner should not trifle with the summary nature of an ejectment suit by the simple epedient of asserting

someone elses ownership o2er the leased property3 !he proceedings are “only intended to pro2ide an

epeditious means of protecting actual possession or right to possession of property3 !itle is not in2ol2ed”• !he distinction between a sumarry action of ejectment and a plenary action for reco2ery of possession andNor

ownership of the land is settled in our jurisprudence3” !he underlying philosophy behind the former “is toprevent 9reach o/ peace and criminal disorder and to compel: parties out o/ possession to respect andresort to the law alone in order to obtain what they claim are theirs3 &etitioner is necessarily in prior lawfulpossession of the property, but his possession e2entually becomes unlawful upon termination or epiration of his right to possess3” "is prior physical possession of the leased property does not automatically entitle him tocontinue in its possession and does not gi2e him “a better right to the property”

• $A ?>B proscri9in0 the imposition o/ death penalty in relation to $P-2 Art DE

• 0rt * <raduated scales ? In the cases in which the law prescribes a penalty lower or higher by one or more degrees

than another gi2en penalty, the rules prescribed in article +* shall be obser2ed in graduating such penalty3

• !he courts, in applying such lower or higher penalty, shall obser2e the following graduated scales:

• (50'# 9%3 *

• 1eath

• Reclusion perpetua

• Reclusion temporal

• &rision mayor

• &rision correcional

• 0rresto mayor

• 1estierro

• 0rresto menor

• &ublic )sic.

• 8ine

• People v 8on2 #$ o EBB>GE2 Oct ?G2 CGGB3

• !he maimum term of reclusion temporal in the sentence imposed on appellant by the 5ourt of 0ppeals for the

two counts of attempted rape3 !he sentence was prescribed by the appellate court prior to the enactment of Republic 0ct 9o3 HB>+ which ended the imposition of the death penalty in the &hilippines3 !he proimateconcern as to appellant is whether his penalty for attempted qualified rape, which under the penal law shouldbe two degrees lower than that of consummated qualified rape, should be computed from death or reclusionperpetua, the critical question is whether Rep 0ct 9o3 HB>+ intended to delete the word “death” as epresslypro2ided for in the graduated scale of penaltties under 0rticle *3

• (upreme 5ourt:

• It is also a wellAknown rule of legal hermeneutics that penal or criminal laws are strictly construed

against the state and liberally in fa2or of the accused3 I/ the lan0ua0e o/ the law were am9i0ous2the court will lean more stron0ly in /avor o/ the de/endant than it would if the statute wereremedial as a means of effecting substantial justice3 !he law is tender in /avor o/ the ri0hts o/ anindividual It is this philosophy of caution before the (tate may depri2e a person of life or libertythat animates one of the must fundamental principles in our ;ill of Rights, that e2ery person ispresume innocent until pro2en guilty3

• P+ E@G (now $A DEBG)

• Catarungang &ambarangay 'aw

• 0lso known as “barangay justice” )mediation, concilation and arbitration.

• A7uino v Aure2 #$ o E@?@BD2 Fe9 E2 CGG3



• (upreme 5ourt:

• !he barangay justice system was established primarily as a means of easing up the congestion of

cases in the judicial courts3 !his could be accomplished through a proceeding before the barangaycourts which, according to the conceptor of the system, the late 5hief 7ustice 8red Rui/ 5astro, isessentially arbitration in character, and to make it truly effecti2e, it should also be compulsory3 $iththis primary objecti2e of the barangay justice system in mind, it would be wholly in keeping with theunderlying philosophy of &residential 1ecree 9o3 *=G-, otherwise known as the Catarungang&ambarangay 'aw, and the policy behind it would be better ser2ed i/ an out'o/'court settlement o/ the case is reached voluntarily 9y the parties

• -oncepcion v -ourt o/ Appeals2 ?E Phil G (CGGG)• (upreme 5ourt:

• !he philosophy behind 0rticle + underscores the necessity for its inclusion in our ci2il law3 !he

5ode 5ommission stressed in no uncertain terms that the human personality must 9e e1alted!he sacredness of human personality is a concomitant consideration of e2ery plan for humanamelioration3 !he touchstone of e2ery system of law of the culture and ci2ili/ation of e2ery country, ishow far it dignifies man3 If the statutes, insufficicently protect a person from being unjustly humiliated,in sohrt, if human personality is not ealted ? then the laws are indeed defecti2e3 !hus, under thisarticle, the rights of persons are amply protected, and damages are pro2ided for 2iolations of persons dignity, personality, pri2acy and peace of mind3

• $es 6udicata ED $ules o/ -ivil Procedure2 $ule C2 Sec ?

• (ection B %ne (uit for a (ingle 5ause of 0ction ? 0 party may not institute more than one suit for a single cause of

action3

• +apar v 8iascan2 et al2 #$ o E>EG2 Septem9er CD2 CGG>3

• (upreme 5ourt:

• L the difference in ofrm and nature of the two actions is immateral and is not a reason for

eemption from the effects of res judicata3 !he philosophy behind this rule prohi9its the parties/rom liti0atin0 the same issue more than once $hen a right or fact has been judicially tried anddetermined by a court of competent jurisdiction or an opportunity for such trial has been gi2en, the

judgment of the court, as long as it remains unre2ersed, should be conclusi2e upon the parties andthose in pri2ity with them3 $hate2er has once been irre2ocably established as the controlling legalprinciple is an earlier final judgment continues to be the law of the case between the same parties inanother suit as long as the facts on which such decision was predicated continue to be the facts of the dispute before the court3

APP$OA-H"S !O PHILOSOPHY

• Analytic approach

• 5onceptual analysis is the method used )logical analysis of the concept, i3e3, what is law4.

• 5oncept need to be clarified first before addressing normati2e issues

• #3 9ormati2e issue: moral obligation to obey the law

• before adequate resolution of the problem, the meanings of “moral”, “obligation”, obedience” and “law” need to be

defined and adequately understood

• $hy4

• "ow the word or concept was in the beginning used by ordinary person in its e2eryday sense )this way, the

philosopher would be able to )a. analy/e and determine if the philosophical conclusion generated from thepremises logically follow, )b. how these problems arose, and )c. ensure that the precise issue or problem isaddressed

• (uccessful communication is better ensure and the foundation for a constructi2e debate is laid

• 02oiding philosophical error and confusion

• 02oiding unwarranted normati2e or substanti2e conclusions through persuasi2e definitions )some words ha2e

the effect of producing either fa2orable or unfa2orable reactions on the part of hearer or reader ? called as“emoti2e meaning” by (te2enson.

• #3 “freedom”, “democracy” and “culture” e2oke fa2orable reaction while “2iolence”, “fascism”, and

“tyranny” e2oke unfa2orable ones

• #3 “democracy” has fa2orable emoti2e meaning

• 0 Darist may make use of this and define true democracy as kind of go2ernment which isgo2erned by the masses in the form of dictatorship of the proletariat )this o2erlookscountry and no procedures are instituted to determine what the people or the masses wantwhich are supposed to be features of a democracy3

• #3 “2iolence” has unfa2orable emoti2e meaning

• ewton #arver3 2iolence as some sort of 2iolation of a persons rights to autonomy and

to dignity )o2ert 2 co2ert 2iolence.

• +ictionary3 unlawful eercise of physical force

• #ffects: *3 definition pro2okes unfa2orable reactions, would automatically result in

condemnation of certain acts, this pre2ents a more through eamination of the nature of the act to determine whether it is indeed condemnable@ 3 blurs the distinction

• -ate0orical and Historical Approach



• > 5aregories )natural law theories, legal positi2ism, social science and radical theories.@ proper understanding of the

many issues in philosophy of law cannot be fully understood unless situated within its jurisprudential category

• %nce categori/edm historical background and setting come in

• aturalist'Positivist +e9ate

• !hey represent two main schools of jurisprudential thought

• !hese two are grounded on most basic insights into the nature of law: law as product o/ reason )from which arises the

rationalist tradition in philosophy of law as eemplified by natural law theory. and law as product o/ human will)2oluntarist tradition championed by legal positi2ism.

• +etached Internal Point o/ 5iew

• &hilosopher must understand from the point of 2iew of the participant )lawyers shoes.

• Internal perspecti2e pro2ides an insight into the nature of the phenomena

• Dartian 2isitng the earth eample

$"L"5A-"

• For lawyers<aspirin0 lawyers

• ;etter lawyer

• #nhance skills and deepen understanding of law )analysis.

• ;etter human being

• ;etter rational understanding of certain normati2e issues and making rational choice in2ol2ing these issues

L"#AL PHILOSOPHY A+ !H" -O.$!S

• 6usti/ia9ility

• $hether a matter is for the courts to pass upon or not is something that the courts must first pass upon3

• Francisco v House o/ $ep (#$ o EBGCBE2 ovem9er EG2 CGG?) and consolidated cases

• (eparate %pinion )0/cuna, 73.:

• 0s to the jurisdication of this 5ourt, and whether the issue presents a political question that may not be del2ed

into by the 5ourt, it is necessary to loo4 into the structure and essence o/ our system o/ 0overnmentunder the -onstitution

• !he starting principle is that the &hilippines is a democratic and republican (tate and that so2ereignty resides

in the people and all go2erned authority emanates from them )0rticle II, (ection *.

• 0s a republican (tate, the so2ereign powers of the people are for the most part eercised through

representati2es and not directly, ecept in the cases of suffrage, referenda and initiati2es3

• It is my 2iew that when the 5onstitution not only gi2es or allocates the power to one 1epartment, or branch of

go2ernment, be it solely or eclusi2ely, but also, at the same time, or together with the grant or allocation,speci/ically provides certain limits to its e1ercise2 then this 5ourt, belonging to the 1epartment called uponunder the 5onstitution to interpret its pro2isions, has the jurisdiction to do so3

• 0nd, in fact, this jurisdiction of the 5ourt is not so much of power as a duty, as clearly set forth in 0rticle 6III,(ection * of the 5onstitution:

• “(ection *3 !he judicial poer shall be 2ested in one (upreme 5ourt and in such lower courts as may

be established by law3”

• 7udicial power includes !"# 1F!O of the courts of justice to settle actual contro2ersies in2ol2ing rights which

are legally demandable and enforceable, and to determine whether or not there has been a gra2e abuse of discretion amounting to lack or ecess of jurisdiction on the part of any branch or instrumentality of the<o2ernment3

• !his function of the 5ourt is a necessary element not only of the system of checks and balances, but also of a

wor4a9le and livin0 -onstitution3 8or absent an agency or organ that can rule with finality, as to what theterms of the 5onstitution mean, there will 9e uncertainty i/ not chaos in 0overnance, i3e3, no go2ernance atall3 !his is what the noted writer on legal systems, &rof3 "3'303 "art, calls the need for a Rule of Recognition inany legal system, without which that sytem cannot sur2i2e and dies )"0R!, !"# 5%95#&! %8 '0$, H, **-.3

• 8rom as far back as 0ngara 2 #lectoral 5ommission, +B &hil *BH )*HB+., it has been recogni/ed that this is not

the supremacy of the 5ourt3 It is the supremacy o/ the -onstitution and o/ the soverei0n Filipino peoplewho ordained and promulgated it3

• 6usticia9ility

• 7usticiability limits the reach of judicial power )what is not justiciable is beyond the pro2ince of the courts.

• Is (5 at liberty to decide which questions it would like to rule on4

• 1epends on constitutionally imposed limits on powers conferred upon political bodies )where there are no

constitutional standards )i3e3, purely policy matters, there is nothing to take judicial cogni/ance of. 9ut it is /or the courts to determine whether the issues fall on the side of justiciability or of nonAjusticiability3

• Francisco v House o/ $ep case )(eparate %pinion of 0/cuna, 7.:

• &roceeding, then, to do our duty of construing the 5onstitution in a matter of profound necessity, we are called

upon to rule whether the second complaint of impeachment is in accord with 0rticle LI, (ec3 B)=. of the5onstitution, which states:



“9o impeachment proceedings shall be initiated against the same official more than once within a periodof one year3”

• I say it is not3

• !he purpose of this pro2ision is twoAfold: to pre2ent undue or too frequent harassment@ and ). to allow the

legislature to do its principal task, legislation3

• I earlier ad2erted to the placement of the power of impeachment, not in the 0rticles on go2ernment powers, but

in the 0rticle on accountability3 !his indicates that such power is not essentially le0islative in character2 andis not primarily intended as a check by the 'egislati2e 1epartment on the other branches3 Its main purpose, atleast under our 5onstitution, is to achieve accounta9ility2 but this is to be done without detriment to the

0overnment power o/ le0islation under 0rticle 6I3

• 0 second complaint is not fore2er barred, but only temporarily so, or until 7une of GG>, to /orestall disruption

o/ the principal tas4 o/ le0islative wor4 0s it is, without casting aspersions on coAequal 1epartments butstressing only the fact that all the 1epartments ha2e so much to do and so little time to do it, the nationalbudget is yet to be appro2ed3 !he rationale of the 5onstitution pro2ision is, thus, e2ident3

• Power o/ 6udicial $eview

• “!he power of judicial re2iew is a sword that must be unsheathed with restraint3 !o ensure this, certain

justiciability doctrines mus be complied with as a prerequisite for the 5ourts eercise of its awesome power todeclare the act of a coAequal branch in2alid for being unconstitutional3 !hese doctrines are important as theyare intertwined with the principle of separation of powers3 !hey help define the judicial role@ they determinewhen it is appropriate for courts to re2iew )a legal issue. and when it is necessary to defer to the other branches of go2ernment” )#alicto v H" 8eni0no Simeon - A7uino III2 et al2 #$ o E?D2 Fe9ruaryC2 CGEC2 5%R%90, 573, separate opinion.

• standing and mottness are among the justiciability doctrines

• Paul $icoeur ' &!he Act o/ 6ud0in0: 6.S!I-IA8ILI!Y

• “amenability to the act of judging” by the institution of the courts

• 7ustificability is “confining” because an issue is resol2ed by reference to specific set of norms called “laws”

• > conditions: )*. eistence of written law@ ). presence of institutional framework@ )B. inter2ention of qualified,

competent and independent persons who are charged with judging@ )>. course of action constituted by the trialor judicial process where the pronounsement of judgment constitutes the endpoint

• $hat does justiciability do4

• (alutary reminder to judges and community that it is the “force of law” that brings the debate between

contending parties to an end

• &referred alternati2e to the brute force that law was crafted to curb

• Institutionali/ation of distributi2e justice

• 1istributi2e justice is sanctioned by the 5onstitution, 0rticle LII, (ection +:

• “!he use of property bears a social fuction, and all economic agents shall contribute to the

common good3 Indi2iduals and pri2ate groups, including corporations, cooperati2es, andsimilar collecti2e organi/ations, shall ha2e the right to own, establish and operate

economic enterprises, subject to the duty of the (tate to promote distri9utive ustice andto intervene when the common 0ood so demands:

• PL+! 5 !-2 EG S-$A DED

• &'1! challenged the grant of interconnection order by 9!5 in fa2or of another company,

saying that “the 9!5 is not empowered to compel such a pri2ate raid on &'1!s legitimateincome arising out of its gigantic in2estment@” that “it is not public interest, but purely apri2ate and selfish interest which will be ser2ed by an interconnection under #!5Is terms@”and that “to compel &'1! to interconnect merely to gi2e 2iability to a prospecti2ecompetitor, which cannot stand on its own feet, cannot be justified in the name of a nonAeistent public need”

• (upreme 5ourt:

• !he interconnection which has been required of &'1! is a form of

&intervention: with property ri0hts dictated by “the objecti2e of go2ernment topromote the rapid epansion of telecommunications ser2ices in all areas of the&hilippines, 3 3 3 to maimi/e the use of telecommunications facilities a2ailable, 3 33 in recognition of the 2ital role of communications in nation building 3 3 3 and toensure that all users of the public telecommunications ser2ice ha2e access to allother users of the ser2ice where2er they may be within the &hilippines at anacceptable standard of ser2ice and at reasonable cost” )1%!5 5ircular 9o3 HGA>-.3 Fndoubtedly, the encompassing objecti2e is the common 0ood

• &recarious about option of adjudication ? when there is unreliability or incompetence ? 2iolent confrontation is

difficult to resist

• 7usticiability addresses injustice )hea2y burden on court and judge. for its finality is “recognition”

• $hen court decides, winning and losing parties alike recogni/e the rule by which the outcome is reached

• Fsefulness of concept of justiciability is closely linked with I9!#<RI!O %8 7F1<#, R0!I%90'I!O %8 '#<0'

(O(!#D, and 5%D&#!#95# and 5R#1I;I'I!O %8 7F1I5I0' I9(!I!F!I%9(

• 0ct of judging makes possible the maintenance of balance: too close an encounter )disorderly and 2iolent

conflict. and too distant a dealing )ignorance, hate and scorn.



8"LI"F

• &hilippine law 2oids contracts that run contrary to morals

• 0rt3 *B= 5ontracts without cause, or with unlawful cause, produce no effect whate2er3 !he cause is unlawful if it is

contrary to law2 morals2 0ood customs2 pu9lic order or pu9lic policy

• 0rt3 *>GH the following contracts are ineistent and 2oid from the beginning:

• !hose whose cause, object or purpose is contrary to law2 morals2 0ood customs2 pu9lic order or pu9lic

policyN• 0rt3 GB= )no compromise on ci2il status, 2alidity of marriage or legal separation, any ground for legal separation, future

support, jurisdiction of courts and future legitime.

• Placewell International Services -orp v -amote2 #$ o EBD?2 CB 6une CGGB

• (5 held that the subsequently eecuted side agreement of an o2erseas contract worker with the foreign employer is

2oid, simply because it is against our eisting laws, morals and public policy

• !he subsequent agreement cannot supersede the terms of the standard employment contract appro2ed by the &%#0 as

R0 9o3 -GH, commonly known as the Digrant $orkers 0ct of *HH=, epressly prohibits the substitution or alteratio, tothe prejudice of the worker, of employment contracts already appro2ed and 2erified by 1%'# from the time of the actualsigning thereof by the parties up to and including the period of the epiration of the same, without the appro2al of 1%'#3

• -alimlim'-anullas v Hon Fortun2 etc2 et al CE> Phil @? (E>)

• (5 held that the contract of sale was null and 2oid for being contrary to morals and public policy3 !he sale was made by

a husband in fa2or of a concubine after he had abandoned his family and left the conjugal home where his wife andchildren li2ed and from whence they deri2ed their support3 !he sale was sub2ersi2e of the stability of the family, a basicsocial institution which public policy cherishes and protects3

• 0ctions contrary to morals are grounds for award of damages3

• 0rticle *: any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs, or publicpolicy shall compensate the latter for the damage

• Sandeas v Sps I0nacio2 #$ o E@@G??2 +ecem9er E2 CGGD

• (5 held that the act of 0lice and Rosita in fraudulently encashing the subject checj to the prejudice of respondents is

certainly a 2iolation of law as well as of the public policy that no one should put the law into his own hands3

• 5i2il ser2ants liable for conduct offensi2e to morality

• "cu9e'8adel v 8adel, BBH &hil3 =*G, =*- )*HH., (5 suspended a court employee for one year for ha2ing illicit relations

with another woman not his wife by whom he begot a child, citing Rule LI6, (ection B )o. of the 5i2il (er2ice Rules andapplicable rulings, that immorality is considered a gra2e offense and is punished by suspension for si months and oneday to one year for the first offense and, for the second offense, by dismissal3

• ;a0uirre v -astillo, >>+ &hil3 -+*, -+ )GGB., (5 reiterated the defintion of immoral conduct as such conduct which

is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of thecommunity3

• "strada v "scritor

•

7udicial philosophi/ing ? judgment demonstrated in penumbral cases )cases not considered by creators of law ?legislature.

• Respondent )court employee. was estranged from her husband and li2ing with a married man, likewise estranged from

his wife3

• (he asked her church )religious sect known as the 7eho2ahs $itness and the $atch !ower and ;ible !ract (ociety. to

pass upon their union and the church ga2e its consent and appro2al3

• Insofat as the congregation is concerned, there is nothing immoral about the conjugal arrangement between #scritor and

Quilapio and they remain members in good standing in the congregation3

• 8or 7eho2ahs $itnesses, the 1eclaration of &ledging 8aithfulness” allows members of the congregation who ha2e been

abandoned by their spouses to enter into marital relations3 !he 1eclration thus makes the resulting union moral andbinding within the congregation all o2er the world ecept in countries where di2orce is allowed3

• (upreme 5ourt:

• Fnder the 9enevolent'neutrality theory2 the principle underlying the 8irst 0mendment is that freedom to carry

out ones duties to a (upreme ;eing is an inalienable right, not one dependent on the grace of legislature3Religious freedom is seen as a substanti2e right and not merely a pri2ilege against discriminatory legislation3$ith religion looked upon with bene2olence and not hostility, bene2olent neutrality allows accommodation o/ reli0ion under certain circumstances

• Admin -ode and -ivil Service Laws )immoral conduct is actionable. 2 $eli0ious norms and /reedom o/ reli0ion)her conjugal

arrangement does not constitute disgraceful and immoral conduct.

• $hat is this morality4

• !he morality referred to in the law is pu9lic and necessarily secular , not religious as the dissent of Dr3 7ustice

5arpio holds3 “Religious teachings as epressed in public debate may influence the ci2il public order butpublic moral disputes may be resol2ed only on grounds articulable in secular terms3”

• %therwise, if go2ernment relies upon religious beliefs in formulating public policies and morals, the resulting

policies and morals would require conformity to what some might regard as religious programs or agenda3 !henon'9elievers would there/ore 9e compelled to conform to a standard of conduct buttressed by a religiousbelief, i3e3, to a “compelled religion,” anathema to religious freedom3



• 'ikewise, if go2ernment based its actions upon religious beliefs, it would tacitly approve or endorse that

9elie/ and thereby also tacitly disapprove contrary reli0ious or non'reli0ious views that would not supportthe policy3 0s a result, go2ernment will not pro2ide full religious freedom for all its citi/ens, or e2en make itappear that those whose beliefs are disappro2ed are secondAclass citi/ens3

• In other words, go2ernment action, including its proscription of immorality as epressed in criminal law like

concubinage, must ha2e a secular purpose3 !hat is, the go2ernment proscribes this conduct because it is“detrimental (or dan0erous) to those conditions upon which depend the e1istence and pro0ress o/ human society: and not because the conduct is proscribed by the beliefs of one religion or the other3

0lthough admittedly, moral judgments based on religion might ha2e a compellin0 in/luence on thoseengaged in public deliberations o2er what actions would be considered a moral disapprobation punishable bylaw3

• Fnderying the compellin0 state interest test is the notion that free eercise is a fundemental right and that

laws burdening it should be subject to strict scrutiny3

• 0pplying the strict scrutinyAcompelling state interest test which is most in line with the bene2olent neutralityA

accommodation approach, (5 dismissed the administrati2e case3

• ReAreading the law and deconstruction

• ReAreading the law is deconstructing it to eplore the unread, the unfamiliar3

• Oposa v Factoran on locus standi: accepted reading of the rules would ha2e denied the children any standing outright

but 57 1a2idce 2entured into the unfamiliar, the mo2ing force of all deconstruction

• $hat is the accepted rule4

• Funa v 5illar2 #$ o ECDE2 April C>2 CGEC

• 0s a general rule, a petitioner must ha2e the necessary personality or standing )locus standi. before

a court will recogni/e the issues presented3

• 5iting I;& 2 Eamora, locus standi was defined as:• a personal and substantial interest in the case such that the party has sustained or will

sustain a direct injury as a result of the go2ernment act that is being challeged3 !he term“interest” means a material interest, an interest in issue affected by the decree, asdistinguished from mere interest in the question in2ol2ed, or a mere incidental interest3”

• Oposa v Factoran , the unfamiliar

• “!his case, howe2er, has a special and no2el element3 &etitioners minors assert that they represent

their generation as well as generations yet unborn3 $e find no difficulty in ruling that they can, for themsel2es, for others of their generation and for the succeeding generations, file a class suit3 !heir personality to sue in behalf of the succeeding generations can only be 9ased on the concept o/ inter0enerational responsi9ility inso/ar as the ri0ht to a 9alanced and health/ul ecolo0y isconcerned (uch a right, as hereinafter epounded, considers the “rhythm and harmony of nature3”9ature means the created world in its entirety3

• %posa 2 8actoran on legal right in2ol2ed or a legal wrong committed

• (upreme 5ourt:

• !he complaint focuses on one specific fundamental legal right ? the right to a balanced

and healthful ecology which, for the first time in our nations constitutional history, issolemnly incorporated in the fundamental law )citing (ection *+, 0rticle II of the *H-5onstitution.

• If they are now eplicitly mentioned in the fundamental charter, it is because of the well'

/ounded /ear o/ its /ramers that unless the rights to a balanced and healthful ecology andto health are mandated as state policies by the 5onstitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preser2e thefirst and protect and ad2ance and second, the day would not 9e too /ar whel all elsewould 9e lost not only /or the present 0eneration2 9ut also /or those to come ?generations which stand to inherit nothing but parched earth incapable of sustaining life3

• %posa 2 8actoran on nonAimpairment of contracts clasue3

• (upreme 5ourt: 5iting 9ebia 2 9ew Oork in &hilippine 0merican 'ife Insurance 5o3 2 0uditor

<eneral:

• Fnder our form of go2ernment the use of property and the making of contracts are

normally matters of pri2ate and not of publoc concern3 !he general rule is that both shallbe free of go2ernmental interference3 ;ut neither property rights not contract rights areabsolute@ for 0overnment cannot e1ist i/ the citien may at will use his property to thedetriment o/ his /ellows2 or e1ercise his /reedom o/ contract to wor4 them harm#qually fundamental with the pri2ate right is that of the public to regulate it in the commoninterest3”

• 7ustice: !he Indeconstructible that summons deconstruction

• Salvacion v -entral 8an4 o/ the Philippines3

• “In our predisposition to disco2er the “original intent” of a statute, courts become the unfeeling pillars

of the status quo3 'ittle do we reali/e that statutes or e2en constitutions are bundles of compromisesthrown our way by their framers3 Fnless we eercise 2igilance, the statute may already be out of tune and irrele2ant to our day3” )!orres, 73, ponente.



• If Carens sad fate had happened to anybodys own kind, it would be difficult for him to fathom how

the incentive /or /orei0n currency deposit could 9e more important that his childKs ri0hts tosaid award o/ dama0esN in this case, the 2ictims claim for damages from this alien who had thegall to wrong a child of tender years of a country where he is a mere 2isitor3 !his further illustratesthe flaw in the questioned pro2isions3

• It is worth mentioning that R0 9o3 +>+ was enacted in *H-B or at a time when the countrys

economy was in a shambles@ when foreign in2estments were minimal and presumably, this was thereason why said statute was enacted3 ;ut the realities of the present times show that the country hasreco2ered economically@ and e2en if not, the questioned law still denies those entitled to due processof law for being unreasonable and oppressi2e3 !he intention o/ the 7uestioned law may 9e 0oodwhen enacted !he law /ailed to anticipate the ini7uitous e//ects producin0 outri0ht inusticeand ine7uality such as the case before us3

• 0mbiguity resol2ed through the application of the 5i2il 5ode

• In fine, the application o/ the law depends on the e1tent o/ its ustice #2entually, if we rule that

the questioned (ection **B of 5entral ;ank 5ircular 9o3 H+G which eempts from attachment,garnishment, or any other order or process of any court, legislati2e body, go2ernment agency or anyadministrati2e body whatsoe2er, is applicable to a foreign transient, inustice would result speciallyto a citi/en aggrie2ed by a foreign guest like accused <reg ;artelli3 !his would negate 0rticle *G of the 9ew 5i2il 5ode which pro2ides that “in case of doubt in the interpretation or application of laws, itis presumed that the lawmaking body intended right and justice to pre2ail3 L (imply stated, whenthe statute is silent or ambiguous, this is one of those fundamental solutions that would respond tothe 2ehement urge of conscience3 )&adilla 2s &adilla, > &hil B.

• 7ustice is not found in the written tet3

• It will be the achie2ement of a judge in each instance who must, precisely because he endea2ors to do justice,

.'W$I!"2 $"'W$I!"2 +"F"$ and +IFF"$ the written tet of the law3

• 'aw is deconstructed so that justice is done )refers not only to law reform or jurisprudential re2ersal but how a

ud0e must loo4 each litigant who stands before him in e2ery single case and do him ustice)

$OL"S OF A$"AS OF LAW

• Fornier v -O*"L"-

• Respondent Ronald 0llan Celly &oe, also known as 8ernando &oe, 7r3 )hereinafter 8&7., filed his certificate of candidacy

for the position of &redident of R&, indicating therein that, among other things, he is a naturalAbron 8ilipino citi/en, bornon 0ugust G, *HBH in the 5ity of Danila3

• &etitioner 8ornier initiated a petition before 5%D#'#5 to disqualify 8&7 and to deny due course or to cancel his

certificate of candidacy on the ground that he made a material misrepresentation in his certificate of candidacy byclaiming to be a naturalAborn 8ilipino citi/en when in truth, according to 8ornier, his parents were foreigners3

• 5%D#'#5 dismissed the petition3 DR was also denied3

• !he (5 dismissed the petition in <3R3 9o3 *+*->3

• In ruling that 8&7 is a naturalAborn 8ilipino citi/en, the (5 referred to the *HB= 5onstitution, which was the fundamental

law pre2ailing on the day, month and year of birth of 8&7, which confers citi/enship to all persons whose fathers are8ilipino citi/ens regardless of whether such children are legitimate or illegitimate3

• (upreme 5ourt: Re2iew of concept of citi/enship

• &erharps, the earliest understanding of citi/enship was that gi2en by 0ristotle, who, sometime in B-> to B

;353, described the “citi/en” to refer to a man who shared in the administration o/ ustice and in theholdin0 o/ an o//ice 0ristotle saw its significance if only to determine the constituency of the “(tate”, which hedescribed as being composed of such persons who would be adequate in number to achie2e a selfAsufficienteistence3 !he concept grew to include one who would 9oth 0overn and 9e 0overned, for whichqualifications like autonomy, judgment and loyalty could be epected3 5iti/enship was seen to deal with rightsand entitlements, on the one hand, and with concomitant obligations, on the other3 In its ideal setting, a citi/enwas acti2e in public life and fundamentally willing to submit his pri2ate interests to the general interest of society3

• !he concept of citi/enship had undergone changes o2er the centuries3 In the *- th century, the concept was

limited, by the large, to civil citienship, which established the rights necessary to indi2idual freedom, such asrights to property, personal liberty and justice3 Its meaning epanded during the *H th century to include politicalcitienship2 which encomapssed the right to participate in the eercise of political power3 !he G th century sawthe net stage of the de2elopment of social citienship2 which laid emphasis on the right of the citi/en toeconomic wellAbeing and social security3 !he idea of citi/enship has gained epression in the modern welfarestate as it so de2eloped in $estern #urope3 0n ongoing and final stage of de2elopment, in keeping with therapudly shrinking global 2illage, might well be the internationaliation o/ citienship

'ocal setting: (panish to present

• !here was no such term as “&hilippine citi/ens” during the (panish regime but “subjects of (pain” or “(panish

subjects”3 In church records, the nati2es were called indios, denoting a low regard for the inhabitants of thearchipelago3 (panish laws on citi/enship became highly codified during the *H th century but their sheer number made it difficult to point to one comprehensi2e law3 ot all o/ these citienship laws o/ Spain2 however2



were made to apply to the Philippine Islands ecept for those eplicitly etended by Royal 1ecrees3

• !he year *-H- was another turning point in &hilippine history3 0lready in the state of decline as a superpower,

(pain was foced to so cede her sole colony in the #ast to an upcoming world pwer, the Fnited (tates3 0naccepted principle of international law dictated that a change in so2ereignty, while resulting in an aborgation of all political laws then in force would ha2e no effect on ci2il laws, which would remain 2irtually intact3

• !he !reaty of &aris was entered into an *G 1ecember *-H- between (pain and the F(3 Fnder 0rticle IL of the

treaty, the ci2il rights and political status of the native inha9itants of the territories ceded to the Fnited (tateswould 9e determined 9y its -on0ress

• Fpon the ratification of the treaty, and pending legislation by the Fnited (tates 5ongress on the subject, the

native inha9itants of the &hilippines ceased to be (panish subjects3 0lthough they did not become 0mericanciti/ens, they, howe2er, also ceased to be “aliens” under 0merican laws and were thus issued passportsdescribing them to be citi/ens of the &hilippines entitled to the protection of the united (tates3

• !he term &citiens o/ the Philippine Islands: appeared for the first time in the &hilippine ;ill of *HG, also

commonly referred to as the &hilippine %rganic 0ct of *HG, the first comprehensi2e legislation of the5ongress of the Fnited (tates on the &hilippines3

• Fnder the organic act, a &citien o/ the Philippines: was one who was an inhabitant of the &hilippines, and a

(panish subject on the **th day of 0pril *-HH3 !he term “inhabitant” was taken to include *. a nati2eAborninhabitant, . an inhabitant who was a nati2e of &eninsular (pain, and B. an inhabitant who obtained (panishpapers on or before ** 0pril *-HH3

• 5ontro2ersy arose on the status of children born in the &hilippines from ** 0pril *-HH to G* 7uly *HG, during

which period no citi/enship law was etant in the &hilippines3 $eight was gi2en to the 2iew, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as theprinciple of territoriality, operati2e in the F( and #ngland, go2erned those born in the &hilippine 0rchipelago

within that period3• $ith the adoption of the &hilippine ;ill of *HG, the concept of “&hilippine citi/ens” had for the first time

crystalli/ed3 !he word “8ilipino” was used by $illiam "3 !aft, the first 5i2il <o2ernor <eneral in the &hilippineswhen he initially made mention of it in his slogan, “!he &hilippines for the 8ilipinos3” In *H*+, the &hilippine

0utonomy 0ct, also known as the 7ones 'aw restated 2irtually the pro2isions of the &hilippine ;ill of *HG, asso amended by the 0ct of 5ongress in *H*3

• Fnder the 7ones 'aw, a nati2eAborn inhabitant of the &hilippines was deemed to 9e a citien of the

&hilippines as of ** 0pril *-HH if he was *. a subject of (pain on ** 0pril *-HH, . residing in the &hilippines onsaid date, and B. since that date, not a citi/en of some other country3

• $hile there was, at one brief time, di2ergent 2iews on whether or not jus soli was a mode of acquiring

citi/enship, the *HB= 5onstitution brought to an end to any such link with common law, by adopting, once andfor all, jus sanguinis or blood relationship as being the basis of 8ilipino citi/enship3

• *HB= 5onstitution

• (ection *, 0rticle III, *HB= 5onstitution3 !he following are citi/ens of the &hilippines A

• !hose who are citi/ens of the &hilippine Islands at the time of the adoption of this

5onstitution

• !hose born in the &hilippines Islands of foreign parents who, before the adoption of this

5onstitution, had been elected to public office in the &hilippine Islands3

• !hose whose fathers or mothers are citi/ens of the &hilippines

• !hose whose mothers are citi/ens of the &hilippines and upon reaching the age of

majority, elect &hilippine citi/enship3

• !hose who are naturali/ed in accordance with law3

• !he *H- 5onstitution generally adopted the pro2ision of the *HB 5onstitution, ecept for subsection )B.

thereof that aimed to correct the irregular situation generated by the questionable pro2iso in the *HB=5onstitution

• !he following are citi/ens of the &hilippines:

• !hose who are citi/ens of the &hilippines at the time of the adoption of this 5onstitution

• !hose whose fathers or mothers are citi/ens of the &hilippines

• !hose born before 7anuary *, *HB of 8ilipino mothers, who elect &hilippine citi/enship

upon reaching the age of majority@ and

• !hose who are naturali/ed in accordance with law3

8&7 5ase• (ection , 0rticle 6II, of the *H- 5onstitution epresses:

• “9o person may be elected &resident unless he is a naturalAborn citi/en of the &hilippines, a registered 2oter,

able to read and write, at least forty years of age on the day of the election, and a resident of the &hilippinesfor at least ten years immediately preceding such election3”

• !he term “naturalAborn citi/ens”, is defined to include “those who are citi/ens of the &hilippines from birth without ha2ing

to perform any act to acquire or pefect their &hilippine citi/enship3”

• !he date, month and year of birth of 8&7 appeared to be G 0ugust *HBH during the regime of the *HB= 5onstitution3

!hrough its history, four modes of acquiring citi/enship ? naturali/ation, just soli, res judicata and jus sanguinis ? hadbeen in 2ogue3 %nly two, i3e3, just soli and jus sanguinis could qualify a person to being a “naturalAborn” citi/en of the&hilippines3 7us soli, per Roa 2s 5ollector of 5ustoms )*H*., did not last long3 $ith the adoption of the *HB=5onstitution and the re2ersal of Roa in !an 5hong 2s (ecretary of 'abor )*H>., jus sanguinis or blood relationship



would now become the primary basis of citi/enship by birth3

&roof of &aternity and 8iliation Fnder 5i2il 'aw

• &etitioner submits, in any casem that in establishing filiation )relationship or ci2il status of the father to the child. of an

illegitimate child, 8&7 e2idently being an illegitimate son according to petitioner, the mandatory rules under ci2il law mustbe used3

• Fnder the 5i2il 5ode of (pain, which was in force in the &hilippines from G- 1ecember *--H up until the day prior to BG

0ugust *H=G when the 5i2il 5ode of the &hilippines took effect, acknowledgmenet was required to establish filiation or paternity3 0cknowledgment was either judicial )compulsory. or 2oluntary3 7udicial or compulsory acknowledgment waspossible only if done during the lifetime of the putati2e parent@ 2oluntary acknowledgment could only be had in a recordof birth, a will, or a public document3

• In order that the birth certificate could then be util/ied to pro2e 2oluntary acknowledgment of filiation or paternity, the

certificate was required to be signed or sworn to by the father3

• In the birth certificate of respondent 8&7, presented by both parties, nowhere in the document was the signature of 0llan

83 &oe found3 !here being no will apparently eecuted, or at least shown to ha2e been eecuted, by decedent 0llan 83&oe, the only other proof of 2oluntary recognition remained to be “some other public document”

• It should be apparent that the growing trend to liberali/e the acknowledgement of recognition of illegitimate children is an

attempt to break away from the traditional idea of keeping well apart legitimate and nonAlegitimate relationships withinthe family in fa2or of the greater interest and welfare of the child3 !he pro2isions are intended to merely go2ern theprivate and personal a//airs o/ the /amily !here is little, if any, to indicate that the legitimate or illegitimate ci2il statusof the indi2idual would affect his political rights or, in general, his relationship to the (tate3 $hile, indeed, pro2isions on“citi/enship” could be found in the 5i2il 5ode, such pro2isions must be taken in the contet or pri2ate relations, thedomain of ci2il law@ particularly A

• 5i2il 'aw is that branch of law which has for its double purpose the organi/ation of the family and the

regulation of property3 It has thus JbeenK defined as the mass of precepts which determine and regulate the

relations of assistance, authority and obedience among member of a family, and those which eist amongmembers of a society for the protection of pri2ate interests3”

• !he rele2ance of “citi/enship” or “nationality” to 5i2il 'aw is best eemplified in 0rticle *= of the 5i2il 5ode, stating that A

• 'aws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding

upon citi/ens of the &hilippines, e2en though li2ing abroad” A

• that eplains the need to incorporate in the code a reiteration of the 5onstitutional pro2isions on citi/enship3

(imilarly, citi/enship is significant in ci2il relationships found in different parts of the 5i2il 5ode, such as onsuccessional ri0hts and /amily relations In adoption, for instance, an adopted child would be consideredthe child of his adopti2e parents and accorded the same rights as their legitimate child but such legal fictione1tended only to de/ine his ri0hts under civil law and not his political status3

• 5i2il law pro2isions point to an ab2ious bias against illegitimacy3 !his discriminatory attitude may be traced to the

(panish family and property laws, which, while defining proprietary and successional rights of members of the family,pro2ided distinctions in the rights of legitimate and illegitimate children3 In the monarchial setAup of old (pain, thedistribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep thesebloodlines uncontaminated by foreign blood was paramount3

•!hese distinctions between legitimacy and illegitimacy were codified in the (panish 5i2il 5ode, and the in2idiousdiscrimination sur2i2ed when the (panish 5i2il 5ode became the primary source of our own 5i2il 5ode3 (uch distinction,howe2er, remains and should remain only in the sphere o/ civil law and not unduly imped or impin0e on thedomain o/ political law

• !he proof of filiation or paternity for purposes of determining his citi/enship status should thus be deemed independent

from and not inetricably tied up with that prescribed for ci2il law purposes3 !he 5i2il 5ode or 8amily 5ode pro2isions onproof of filiation or paternity, although good law, do not have preclusive e//ects on matters alien to personal and familyrelations3 !he ordinary rules on e2idence could well and should go2ern3

• !hus, the duly notari/ed declaration made by Ruby Celley Dangahas, sister of ;essie Celley &oe submitted as #hibit

G before the 5%D#'#5, might be accepted to pro2e the facts of 0llan 83 &oe, recogni/ing his own paternal relationshipwith 8&7, i3e3, li2ing together with ;essie Celly and his children )including respondent 8&7. in one house, and as onefamily )citing Section ?2 $ule E?G2 of the Rules of 5ourt on act or declaration a9out pedi0reeN pedigree includesrelationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, andthe names of the relati2es3 It embraces also facts of family history intimately connected with pedigree.

W$I!I#S OF S"IO$ ASSO-IA!" 6.S!I-" $"A!O S P.O , !H" -OS!I!.!IOAL PHILOSOPHY OF PHILIPPI"6.$ISP$.+"-" 8Y 6OS" *I+A P *A$=."; CGG@

• 6udicial $estraint2 6udicial Activism and the -oordinacy !heory o/ -onstitutional Interpretation

• Francisco v House or $ep (CGG?)3

• 7udicial restraint assumes a setting of a go2ernment that is democratic and republican in character3 $ithin this

democratic and republic framework, both the apostles of judicial restraint and the disciples of judicial acti2ismagree that go2ernment cannot act beyond the outer limits demarcated by constitutional boundaries withoutbecoming subhect to judicial inter2ention3 !he issue that splits them is the location of those limits3

• !he antagonism between judicial restraint and judicial acti2ism is a2oided by the coordinacy theory of

constitutional interpretation3 !his coordinacy theory 0ives room /or udicial restraint without allowin0 the udiciary to a9dicate its constitutionally mandated duty to interpret the constitution 5oordinacy theoryrests on the premise that within the constitutional system, each branch of go2ernment has an independent



obligation to interpret the 5onstitution3 !his obligation is rooted on the system of separation of powers3)(eparate %pinion, &uno, 73.

• .r0in0 the -ourts to 9e Pro'Active

• I8P v ;amora (CGGG)3

• It is now history that the improper reliance by the 5ourt on the political question doctrine eroded the peoples

faith in its capacity to check abuses committed by the then #ecuti2e in the eercise of his commanderAinAchief powers, particularly 2iolations against human rights3 !he re/usal o/ courts to 9e pro'active in the eercise of its checking power dro2e the people to the streets to resort to etralegal remedies3 !hey ga2e birth to #1(03)(eparate %pinion, &uno, 73.

• Li9eraliin0 +iscovery and +eposition Procedure to "spouse a Pro'Active -ourt• People v We99 (E)3

• !he liberali/ation of the rules of disco2ery in criminal procedure in the F( while slow was unabated3

• In the case of the &hilippines, the mo2e towards a more liberal disco2ery and deposition procedure in criminal

cases is e2en slower but its march, likewise, appears ineorable3 !here can be no stepping back for the *H-5onstitution has gone to the etent of constitutionali/ing basic rights of the accused whuch has not been donein the Fnited (tates3 $ith this new orientation of the 5onstitution, this 5ourt itself has taken steps to liberali/eour rules of criminal procedure3 !hus, (ection *, Rule **- of our *H-= Rules on 5riminal &rocedure for the firsttime ordered the holding of preAtrial when the accused and the cousel agree3 !he fruitful epreience of courtsholding preAtrial in criminal cases has impelled requests that our rules be further amended to make itmandatory3 !hus, too, this 5ourt has gi2en an epansi2e interpretation of the right of an accused to disco2eryprocedure3

• Fpon assumption of office, our present 5hief 7ustice 2owed to ha2e a court that is pro'active2 a stance that

will surely promote rights more than authority3 I am sure such a stance will quicken mo2es to liberali/e further our rules on criminal procedure on the matter of disco2ery and deposition taking as to strenghthen the

constiuttional right to due process of an accused )5oncurring %pinion, &uno, 73.• Pro'active 9ut always neutral

• !ecson v -O*"L"-

• $hile there is a need for the 5ourt to be at times proAacti2e, it must always remain neutral

• 7ustice &uno argued that the delay in the resolution of the issue of whether respondent &oe is qualified to run

for the presidency should be a2oided as this will prejudice his candidacy and fa2or his political opponents3

• In light of these erudite opinions of our amici curiae, it is daylight clear that 8ornier is not only wrong with his

facts but also wrong with his law3 5onsidering that petitioner is wrong both with his facts and the law, the 5ourthas no option but to dismiss the petition at bar which espouses nothing but errors3 !his 5ourt will becompoundin0 the wron0s committed by petitioner 8ornier with another wron0 if it remands the petition atbar to the 5%D#'#53 0 remand means a new round of litigation in the 5%D#'#5 when its proceedings ha2elong been closed and terminated3 )(eparate %pinion, &uno, 73.

• !his court is also a court o/ e7uity

• $epu9lic v L$- (E@)

• 0s this 5ourt is not only a court of law but also of equity, we hold that fairness requires that pri2ate respondent

be allowed possession of not more than &+G million of the le2ied properties3• Remand means petitioner will be gifted with another chance to prove /acts which he has /ailed to prove

9e/ore Remand means the petitioner will be gi2en the e1tra'ordinary privile0e of correcting his erroneousunderstanding of the law on who are naturalAborn 8ilipino citi/ens3 !hese are fa2ors which cannot be etendedto a litigant without shattering the 5ourts stance of political neutrality !he 5ourt must be abo2e politics for inthe temples of justice, we do not follow any political god3 )(eparate %pinion, &uno, 73.

• “In the meanwhile, no e2asion, much less defiance, is allowable3 It is bad enough if the parties would be

minded to do so3 It is infinitely worse if the offender, as was the case here, was a judge of the 5ourt of 8irstInstance3 It would make a moc4ery o/ the le0al order i/ one li4e respondent ud0e2 precisely called uponto assure respect /or le0al processes2 would act otherwise !o say that he has been recreant to his trustis to put it mildly3 8or the contumacious conduct manifested by him has a much more corrosi2e effect in thepublic mind3” )citing Reliance &rocoma, Inc3 2 &hilA0sia !obacco 5orporation.

• !he supreme court is also a court o/ /irst instance

• A0an v Phil International Air !ermianls2 Inc (CGG?)

• (5 can always assume jurisdiction o2er a case in the first instance if necessitated by the circumstances3

• !he rule on hierarch of courts will not also pre2ent this 5ourt from assuming jurisdiction o2er the cases at bar3!he said rule may be relaed when the redress desired cannot be obtained in the appropriate courts or whereeceptional and compelling circumstances justify a2ailment of a remedy within and calling for the eercise of this 5ourts primary jurisdiction3

• It is easy to discern that eceptional circumstances eist in the cases at bar that call for the relaation of the

rule3 ;oth petitioners and respondents agree that these cases are of transcendental importance as theyin2ol2e the construction and operation of the countrys premier international airport3 Dore2er, the crucial issuessubmitted for resolution are of /irst impression and they entail the proper le0al interpretation o/ 4eyprovisions o/ the -onstitution2 the 8O! Law and its Implementin0 $ules and $e0ulations !hus,considering the nature of the conto2ersy before the 5ourt, procedural bars may be lowered to gi2e way for thespeedy disposition of the instant cases3

• It is also the 9usiness o/ the court to shield the innocent ri0ht /rom the start



• $o9erts2 6r v -A (EB)

• It must be stressed, howe2er, that in these eceptional cases, the 5ourt took the etraordinary step of

annulling findings of probable cause either to pre2ent the misuse of the strong arm of the law or to protect theorderly administration of justice3 !he constitutional duty o/ this -ourt in criminal liti0ations is not only toac7uit the innocent a/ter trial 9ut to insulate2 /rom the start2 the innocent /rom un/ounded char0es 8or the 5ourt is aware of the strains of a criminal accusation and the stresses of litigation which should not besuffered by the clearly innocent3 )1issenting %pinion, &uno, 73.

• !he filing of an unfounded criminal information in court eposes the innocent to se2ere distress especially

when the crime is not bailable3 #2en an acquittal of the innocent will not fully bleach the dark and deep stainsleft by a baseless accussation for reputation once tarnished remains transihed for a long length of time3 !heepense to establish innocence may also be prohibiti2e and can be more punishing especially to the poor andthe powerless3 Innocence ought to be enough and the business of this 5ourt is to shield the innocent /romsenseless suits ri0ht /rom the start

• $espectin0 the hierarchy o/ courts

• 5illa/lor v 6ud0e Amaton0 (CGGG)

• Respondent judge ought to know his place in the judicial ladder3 Inferior courts must be modest enough to

consciously reali/e the position that they occupy in the interrelation and operation of the integrated judicialsystem of the nation3 %ccupying as he does a court much lower in rank than the 5ourt of 0ppeals, respondent

judge owes respect to the latter and should2 o/ necessity2 de/er to the orders o/ the hi0her court !heappellate jurisdiction of a higher court would be rendered meaningless if a lower court may, with impunity,disregard and disobey it3

• “3 3 3)!.he settled rule is that an order from the bench issue by a court acting within its jurisdiction is entitled to

respect3 It may come from a municipal or city court, or one of the net higher rank as that occupied by

respondent judge or the 5ourt of 0ppeals, as did happen here3 !his -ourt does not have to 9e the source$hat cannot be ignored is that it would 9e productive o/ con/usion i/ the parties could ust disre0ardwhat has 9een so ordained !he appropriate procedure always is for the matter as thus decreed by anytribunal to be taken up an appeal3 $here as did happen here, the 5ourt of 0ppeals had spoken, the judge of the court of first instance was bound by what it said3 If there is room for disagreement, a reconsideration canbe sought, or the matter can be taken up, whene2er appropriate to this 5ourt3” )citing Reliiance &rocoma, Inc32 &hilA0sia !obacco 5orporation.

• “!o paraphrase 7ustice ;randeis, a go2ernment of laws demands that pu9lic o//icials o9serve scrupulously

orders emanatin0 /rom tri9unals vested with competence 8or the public looks up to them3 8or good or for ill, what they do sets the eample3 +isrespect /or the law is conta0ious If the judge does not obser2e

judicial norms, he is to all intents and purposes just as much a lawAbeaker3 "is conduct breeds contempt for the rule of law3 It may ultimately lead to anarchy3 !his may be to conjure too etreme an e2il3 It may be so, butwhere the obser2ance of judicial decorum is concerned, more specifically the requirement of strict conformityto an order of an appellate tribunal, e2en the slightest infraction is not to be tolerated3 %bsta principiis shouldbe the rule3” )citing Reliance &rocoma, Inc3 2 &hilA0sia !obacco 5orporation.

Philo of Law Notes

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