LEGAL PHILOSOPHY

HISTORICAL PERSPECTIVE Atty. V. Aguirre

Rosa Cecilia K. Alfafara Sarah Joyce R. Calica Chedelle Fatima C. Florido Marie Rojan S. Padua Martha Rose C. Serrano BLOCK G01

Historical Perspective as a Starting Point The ideas of soul and spirit are rarely used in the works of modern philosophers. All ideas are generally used to mean a high degree of intelligence, which they call minded action. Modern jurisprudents have ceased to consider or to pursue the historical perspective as to the nature of the law. Stone feels that the historical perspective of the nature of the law is only a chapter in the development of law in society. It is still useful in the evaluation of the legal development of a nation especially its legal history. Historical Element in Law Due to the inevitable conflict of wants some kind of social order evolved in order to settle or harmonize conflicting or overlapping interests. Based in some recurring decisions or adjustments of conflicts of interests. The precepts defining rules of action were classifies and with the evolution of some form of government served as the beginning of the legal orer. The presence of the historical element in law is thus manifested by at least two important marks: The changes in social existence of the people and The progressive conditions of their politico-legal development. Historical Jurisprudence, the law could not have thrived except in this environment. Historical View Limited in Scope Peculiar to a group of people. Accepts the idea that what is peculiar to a group of people is not necessarily true for another group of people. Each group has its own folksoul persisting from generation to generation. The law is not universal in scope. It is only national in character that is to say conservatively oriented to the time, place and individuality of a particular group of people.

Nature of the Law On the Vocation of Our Times for Legislation and Jurisprudence , Savigny vigorously opposed the plan of Professor Thibaut to codify the civil laws. Professor Thibaut cited the successful application of the Roman Law principles in the French Code, Napoleon. Savigny argued vigorously that Thibauts proposal was an affront to the German volksgeist. The law is the product of the huge mass of beliefs, opinion, prejudices and even superstitions of a people produced by institutions of human nature reacting one upon another. (Henry Sumner Maine) The OBLUTIACS of a People Language Opinions, Beliefs, Longings, Usages, Traditions, Idiosyncrasies, Arts, Customs and Superstitions Reveals the national identity, character and genius of a people. Form the common consciousness and intelligence of the people It can be assumed that each group of people has its own common consciousness about its national identity and character. The Folksoul Folksoul (Diwayan) National Identity Character Genius of People FOLKLORE Paniniwala Beliefs and traditions of a group of people May survive in the form of epic tales (kwentong bayan) Also in tales of bravery

 Epic Tales: Ibalon Biag ni Lam-Ang Muslims of Lake Lanao FOLKSAYING Kasabihan From opinions of the people OPINIONS = stronger than impressions May be in MAXIMS (sawikain) or SENTIMENTS (sabi) MAXIM (sawikain) short or terse statement containing a general truth or a timeless rule of conduct SENTIMENT (sabi) settled sense, view or disposition colored by feeling EXAMPLE: Mabuti na ang mamatay na malinis ang budhi kaysa mabuhay na parang pusali. Ang pag-aasawa ay di biro, hindi ito kaning mainit na iluluwa kapag napaso. JURAL IN NATURE Ang mag-asawa sa ari-arian ay iisa. Could be found in the Family Code Huwag kang pumasok sa bakiuran nino man ng huwag kang masakupan Positive law on ownership FOLKWAY Kaugalian Common consciousness and national character of the people Composed of customs and usage of the people Customs and usages are widespread ways and practices

 To aid life in the environment which the people have found themselves. Enforced by social sanctions which makes it different from habits. But habits can evolve to customs when they become rational and widespread. Has passed the tests of time and crises. Example: Ligaw-Tingin (courtship-by-looking) Pagmamagulang jural in nature; found in the family code. Maybahay may ari ng bahay; management of the household by the wife. Bigaypayo advice from the elders; also in the Family code.

Law Not Deliberately Made The law is not deliberately made by the effort of human will but is discovered in the common consciousness of the people. Historical jurisprudence has remained unperturbed in its view that reason alone cannot work miracles in legal development nor work wonders in constitution making, codifications, and legislation. Thus, the growth of law is an evolutionary process. The growth of legal system is closely related to the growth and development of people, the expansion of commerce and trade, as well as the interdependence existing among different groups of people. As Justice Benjamin Cardozo said, History built up the system and the law went with it. Historical jurisprudence posits the idea that since the law cannot be realized in the individual but only in the species, then the law is the product of the national genius or common consciousness, developed by the steady growth and development of the people themselves. Jurisprudents and jurists are known to be the men of law. They follow the evolution and progress of the folksoul by legal historical research. They are engaged in the formulations of the technical legal precepts (ie. legal rules, legal principles, legal concepts, and legal standards). These specialists become the agency and communication of the law.

Similarity of Different Legal Orders Historical Reason In the process of development of a group of people, many outside factors or foreign traitcomplexes may have been assimilated by the people. Political, commercial, religious, and other types of contacts with other group of people have had a great deal to do with the resulting similarity or even uniformity in the legal orders of different people. These outside contacts also explain the phenomenon that some aspects of a foreign legal system are inconsistent with the oblutiacs of people under the dominion of another group. Jurisprudential Reason The precepts of justice and fairness are said to be permanent and present in all men everywhere since they are impressed in the human heart and mind. An example of this is the principle, No one can enrich himself at the expense and misery of another.

Value of Historical Perspective

The study of oblutiacs requires a method that understands its development; that is through historical perspective. The purpose of applying the historical perspective, in oblutiacs, mainly covers the underlying reason behind the rules and regulations emanating from human conduct. Due to the constant practice of people, human conduct, laws are created and promulgated. To give a brief demonstration if the Value of Historical Perspective, this part of the discussion provides how the concept of human conduct has been established in the Philippine Laws. The provisions in the Civil Code are concrete application of the Filipino customs. Some of these provisions are as follows: Article 10 of the Civil Code This article provides a manifestation that Filipinos human conduct is to promote justice for all. It can be found in the sawikain, Ilubog at dagnan man ang katwiran/ ay pilit itong lulutang, that it has been a long practice of the Filipinos to seek justice for all before the concept of justice has been provided in the Philippine laws. Articles 216-222 ((modified by art. 149 and 150 of FC) These articles provide the custom of the Filipinos that portrays the family as an important basic unit of a community.

Thus, as the Philippine customs are transformed in to the Philippine law, the Courts may use this as an instrument of guidance when necessary.