INTRODUCTION TO LAW Ramil F.

De Jesus Introduction In its widest and most comprehensive sense, the term law means any rule of action or any system of uniformity. Thus, law in general, determines not only the activities of men as rational beings but also the movements or motions of all objects of creation, whether animate or inanimate.1 It includes all laws, whether they refer to state law, physical law, divine law and others. In strict legal sense, law is defined as a rule of conduct, just and obligatory, laid down by legitimate authority for the common observance and benefits.2 Objectives 1. To provide an overview of the general division of law; 2. To enumerate and discuss different law in each division; 3. To enumerate the characteristics of law; and 4. To discuss the necessity of law.

Discussions There are two major divisions or group of law. Those laws which are promulgated by the State and its subdivisions called jural laws and those which are not promulgated by the State or the non-jural laws. The strict definition of law refers to the jural laws. Non-Jural Laws Eternal or Divine Law is the wisdom of Gods reason as it directs and commands every action and movement. In general sense, is the entire system of perfection which God, in his infinite wisdom, has imprinted in the whole of nature
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De Leon, Hector S., The Law on Obligations and Contracts. 2008 Suarez, Rolando A. Introduction to Law. 1995 citing Sanchez Roman.

to govern its operations and all that there is in it. In its strict sense, is the law of the religious faith which concerns itself with the concept of sin and salvation, of life and death, of the temporal and the eternal. It is formally promulgated by God and revealed through the various means of divine revelations, such as vision, mystic dreams or deep religious experience.3 Different religions have their own divine law embodied in their own religious or holy book or testament. The Christians have the Ten

Commandments in the Holy Bible. Hindus have the Vedas in the four book of knowledge. The Buddhist have the Scriptures in the Three Baskets of Wisdom. The divine law of the Mohammedans is contained in the Quoran. Natural Law may be then defined as the divine inspiration in mans sense of justice and fairness, and righteousness, not by divine revelation or formal promulgation, but by internal dictates of reason alone. (De Leon, Hector S., The Law on Obligations and Contracts. 2008). Divine law and Natural law is not the same in the sense that Divine Law is promulgated through revelations while Natural Law is not promulgated but is a product of internal dictates of reason. Moral Law is the system or totality of desirable experience of the people in moral responsibility borne of the collective consciousness of public sense of roght or wrong for the control and supervision of the activities and manners of the people in respect of one another. (Escoses, Adelardo . Lecture Notes on Philosophy of Law. 2012). The laymans definition of what is moral pertains to excellence of character or disposition. It relates to the distinction between right and wrong; virtue and vice; ethical praise or blame. Moral law refers to the body of

requirements in conformity to which virtuous action consists. Applied to persons,

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Escoses, Adelardo . Lecture Notes on Philosophy of Law. 2012

it is conformity to the rules of morality, being virtuous with regards to moral conduct.( Oxford Universal Dictionary, Vol. 2, p. 1280 as cited in .M. No. P-021651, dissenting opinion of J. Ynares-Santiago) When we talk of moral law, we are speaking of the totality of the norms of good and right conduct growing out of collective sense of right and wrong of every community. At a very comparatively early stage of their existence human beings learned it was good for the welfare of the group that the privilege to determine what is right and what is wrong was not left to each member of the group. The mores or ways of life were then evolved which were always considered right and correct, and obedience to them was demanded by the group. As distinguished from state law, there is no definite sanctions(punishment imposed by laws like imprisonment and /or payment of fines or damages) for violation of purely moral law. If a member of the community disregards the moral norms, a spontaneous social rection is produced in the form of public displeasure, contempt or even indignation. If on the otherhand, there is conformity to the moral norms, there is created spontaneous social response which may be on the form of public pleasure , approval or even joy. (C. Pascual, The Nature and Element of Law, 1954, as quoted by De Leon). Physical Laws are the physical behaviors and phenomena that human beings and dumb creatures sense and feel. They are imperative because they are fixed and unbreakable. They are regular because there is no break in their sequence or constancy once they are set into motion. The norms of physical law are the generalized propositions or statements of observed phenomena concerning order and regularity in the happening of certain events. Since physical lawis imperative and regular, the norms of physical law can be reduced and worked out in a mathematical formula. Jural Laws

Jural laws are those promulgated by the state and its political subdivision. It is sometimes called state law, positive law. It is the entire body of law duly promulgated and non-observance will usually result to sanctions provided for in its enactment. The fields of state law are different from those of divine law, natural law and moral law. State law does not concern itself with the violations of the latter rules of action unless they also constitute violations of its command. A full examination of divine law properly belongs to the field of philosophical theology; of natural law to metaphysics; of moral law to ethics; and of physical law to physical science or physics.(M.J. Gamboa as cited by De Leon). Jural laws in its particular or specific sense refers to statute which is a written enactment of the legislature of a State composed of definite provisions for definite situations or state of facts to which certain definite incentives and/or sanctions are attached as a means of enforcement. In its loose term, it refers to any rule, or regulation, or opinion duly formulated or adapted by responsible persons learned in law, an authorized official, or any agency of the State. In its, collective or aggregate sense, it refers to the gross or bulk of specific or particular laws relating to one subject or coming from a determinate source or origin. (Escoses, Adelardo . Lecture Notes on Philosophy of Law. 2012) Characteristics of Law (Jural law) The characteristics of law (in its specific sense) are: a. It is a rule of conduct. Law tells us what shall be done and what shall not be done. As a rule of human conduct, law take cognizance of external acts only; b. It is obligatory. Law is considered a positive command imposing a duty to obey and involving sanction which forse obedience;

c. It is promulgated by legitimate authority. In a democratic country, like the Philippines, the legitimate or competent authority isn the legislkature. Under the Constitution, laws called statutes are enacted by Congress which is the name of the legislative branch of our government; local government units are also empowered to enact ordinances which have binding force of laws; and d. It is of common observance and benefit. Law is intended by man to serve man. It regulates the relations of men to maintain harmony in society and to make order and co-existence possible. Law must, therefore, be observed by all for the benefit of all.( De Leon, Hector S., The Law on Obligations and Contracts. 2008) Laws must have the four characteristics in order to effective. Absence of one characteristic may be a ground for non-observance. It will no longer be a positive law if it fails to meet the four characteristics mentioned above. Sources of Law The following are the sources of law: a. Constitution. It is the fundamental law of the land. The supreme and highest law, all other law or regulations must not contravene the provisions of the Constitution. Any laws that violate the provisions of the Constitution may be declared invalid in appropriate proceedings. b. Legislation. Statutes enacted by the legislative authority of the State. The legislative power is vested in the Congress of the Philippines (the House of Representatives and the Senate). But during the early years of martial law, the old Congress was dissolved and legislative power was vested to the President of the Philippines. This is why we have the Presidential Decrees enacted by the President of the Philippines. When the Batasang Pambansa was organized, legislative power was restored to the

legislature but the President retains his power to issues decrees in the exigency of the situations and or emergencies. Today, legislative power is back in the hands of the Congress of the Philippines as prescribed by the Constitution. c. Administrative or executive orders, regulations, and rulings. They are those issued by administrative officials under legislative authority or by administrative agencies clothed with quasi-legislative functions.

Administrative rules and regulations are intended to clarify or explain the law and carry into effects its provisions. Administrative acts are valid only when they are not contrary to laws and Constitution.( Art. 7, Civil Code as cited by De Leon). When an administrative agency promulgates rules and regulations, it makes a new law with the force and effect of a valid law. Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, partake of the nature of a statute. This is so because statutes are usually couched in general terms, after expressing the policy, purposes, objectives, remedies and sanctions intended by the legislature. The details and the manner of carrying out the law are often times left to the administrative agency entrusted with its enforcement. In this sense, it has been said that rules and regulations are the product of a delegated power to create new or additional legal provisions that have the effect of law.( ictorias Milling Co., Inc. vs. Social Security Commission, 114 Phil. 555 (1962), as cited in Freedom from Debt Coalition v. Energy Regulatory Commission, G.R. No. 161113, 15 June 2004) d. Jurisprudence. This means that decisions or principles enunciated by a competent Court , particularly the Supreme Court on a question of law serves as guide to be followed by inferior courts on cases with the same issues. Judicial decisions applying or interpreting the laws or the

Constitution shall form part of the legal system(Art.8, Civil Code). Although jurisprudence is in strict sense not law, it is deemed part of the legal system and will have a force in the interpretation of the law. This is the principle of Stare Decisis, which is observed and adhered to by the Philippine legal system. Jurisprudence, in our system of government, cannot be considered as an independent source of law; it cannot create law. While it is true that judicial decisions which apply or interpret the Constitution or the laws are part of the legal system of the Philippines, still they are not laws. Judicial decisions, though not laws, are nonetheless evidence of what the laws mean, and it is for this reason that they are part of the legal system of the Philippines. Judicial decisions of the Supreme Court assume the same authority as the statute itself.( Columbia Pictures, et al. vs. Court of Appeals, et al., G.R. No. 110318, August 28, 1996). This doctrine of adherence to precedents or stare decisis was applied by the English courts and was later adopted by the United States. Associate Justice (now Chief Justice) Reynato S. Punos discussion on the historical development of this legal principle in his dissenting opinion in Lambino v. Commission on Elections(G. R. No. 174153, October 25, 2006 as cited in Ting v. Ting, G.R. No. 166562) is enlightening:
The latin phrase stare decisis et non quieta movere means stand by the thing and do not disturb the calm. The doctrine started with the English Courts. Blackstone observed that at the beginning of the 18th century, it is an established rule to abide by former precedents where the same points come again in litigation. As the rule evolved, early limits to its application were recognized: (1) it would not be followed if it were plainly unreasonable; (2) where courts of equal authority developed conflicting decisions; and, (3) the binding force of the decision was the actual principle or principles necessary for the decision; not the words or reasoning used to reach the decision. The doctrine migrated to the United States. It was recognized by the framers of the U.S. Constitution. According to Hamilton, strict rules and precedents are

8 necessary to prevent arbitrary discretion in the courts. Madison agreed but stressed that x x x once the precedent ventures into the realm of altering or repealing the law, it should be rejected. Prof. Consovoy well noted that Hamilton and Madison disagree about the countervailing policy considerations that would allow a judge to abandon a precedent. He added that their ideas reveal a deep internal conflict between the concreteness required by the rule of law and the flexibility demanded in error correction. It is this internal conflict that the Supreme Court has attempted to deal with for over two centuries. Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare decisis developed its own life in the United States. Two strains of stare decisis have been isolated by legal scholars. The first, known as vertical stare decisis deals with the duty of lower courts to apply the decisions of the higher courts to cases involving the same facts. The second, known as horizontal stare decisis requires that high courts must follow its own precedents. Prof. Consovoy correctly observes that vertical stare decisis has been viewed as an obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not a command. Indeed, stare decisis is not one of the precepts set in stone in our Constitution. It is also instructive to distinguish the two kinds of horizontal stare decisis constitutional stare decisis and statutory stare decisis. Constitutional stare decisis involves judicial interpretations of the Constitution while statutory stare decisis involves interpretations of statutes. The distinction is important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still holds sway today. In soothing prose, Brandeis stated: Stare decisis is not . . . a universal and inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or departed from, is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. In the same vein, the venerable Justice Frankfurter opined: the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it. In contrast, the application of stare decisis on judicial interpretation of statutes is more inflexible. As Justice Stevens explains: after a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself. This stance reflects both respect for Congress' role and the need to preserve the courts' limited resources. In general, courts follow the stare decisis rule for an ensemble of reasons, viz.: (1) it legitimizes judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability. Contrariwise, courts refuse to be bound by the stare decisis rule where (1) its application perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social and political understandings; (3) it leaves the power to overturn bad

9 constitutional law solely in the hands of Congress; and, (4) activist judges can dictate the policy for future courts while judges that respect stare decisis are stuck agreeing with them. In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and reversed its decisions in 192 cases. The most famous of these reversals is Brown v. Board of Education which junked Plessy v. Ferguson's separate but equal doctrine. Plessy upheld as constitutional a state law requirement that races be segregated on public transportation. In Brown, the U.S. Supreme Court, unanimously held that separate . . . is inherently unequal. Thus, by freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans from the chains of inequality. In the Philippine setting, this Court has likewise refused to be straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal Association, Inc. v. Ramos, we reversed our original ruling that certain provisions of the Mining Law are unconstitutional. Similarly, in Secretary of Justice v. Lantion, we overturned our first ruling and held, on motion for reconsideration, that a private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. An examination of decisions on stare decisis in major countries will show that courts are agreed on the factors that should be considered before overturning prior rulings. These are workability, reliance, intervening developments in the law and changes in fact. In addition, courts put in the balance the following determinants: closeness of the voting, age of the prior decision and its merits. The leading case in deciding whether a court should follow the stare decisis rule in constitutional litigations is Planned Parenthood v. Casey. It established a 4-pronged test. The court should (1) determine whether the rule has proved to be intolerable simply in defying practical workability; (2) consider whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (3) determine whether related principles of law have so far developed as to have the old rule no more than a remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be seen differently, as to have robbed the old rule of significant application or justification

e. Custom. Custom have the force of law when they are acknowledged and approved by society through long and uninterrupted usage. In the Philippines, there are several requisites before the court considers custom.

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Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.] On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] (cited in Yao Kee v. Sy-Gonzales et al.,1988).