LEGAL CHIMERISM IN PHILIPPINE

CONSTITUTIONAL INTERPRETATION
Allan Chester Nadate*
The history of the Philippine legal system typifies the substantive
merging of the civil law and common law traditions as a result of
more than four centuries of colonialism. The admixture has been
generally referred to in legal scholarship as a hybrid legal
tradition, generally effectuated by the Judiciary. While expansive
legal research has been devoted into the character of this
hybridized system, its consequences have been largely unstudied.
Addressing this issue, this Article submits a restatement of this
theory through the novel postulate of legal chimerism.
Chimerism is an asymmetric attribution of interpretive methods,
which fosters indeterminacy in constitution operation as a
consequence of greater judicial discretion in selecting interpretive
methods. Evidently, the application of these processes of
constitutional construction, unique or principal to both civil and
common law traditions, has resulted to arbitrariness and
consequently, indeterminacy in constitutional jurisprudence.
We live under a Constitution,
but the Constitution is what judges say it is.
Charles Evans Hughes1
I. INTRODUCTION
Concordance prefigures in the decision-making process of the courts. In
theory, provided with the same sets of facts, judges caeteris paribus would arrive at
individual decisions in similar manners and with similar ends in mind, such that
individual decisions shall have high inter-rater reliability or inter-judge
agreement.2

* J.D. (2018, expected), University of the Philippines; B.S., College of Nursing,

University of the Philippines (2012); Awardee for Academic Excellence, Vice President Academic
Excellence and Exemplary Leadership Awards (2008); Awardee, Philippine Information Agency
IWAG Awards (2008). This paper was submitted in the course Legal Methods under Prof. Pacifico
Agabin, College of Law, University of the Philippines. The author thanks Professor Agabin for
his commendations.
1 Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in
ADDRESS AND PAPERS OF CHARLES EVANS HUGHES 133, 139 (Robert H. Fuller & Gardner
Richardson eds. 1908).
2 Inter-rater reliability, as a statistical concept, is the degree of agreement among raters.
See MOHAMED M. SHOUKRI, MEASURES OF INTER-OBSERVER AGREEMENT AND RELIABILITY
(2d ed. 2010). The measure is usually used to evaluate the quality of data collection methods.

As applied in Supreme Courts or courts of last resort, individual justices

should presumably decide with high inter-rater reliability and the collegial body
must, as a general rule, settle controversies with minimal dissent. The justices are
expected, through procedural or epistemic mechanisms of jurisprudence, to
arrive at congruent decisions or personal conclusions that proximate the modal
decision.3 Stated technically, in every case or controversy, facts, information, and
data are gathered through similar means, and then filtered through a defined
logical tree or algorithm. At the end of this process of legal analysis is an
unambiguous answer, which every justice ought to arrive at.
The Langdellian theory forwards such juristic knowledge-collecting
processes and analyses. The courts are presumed to be equipped with higher-level
and lower-level principles to arrive at conclusions that perfect the completeness
of the legal system. There is a universal formality that constructs an interpretive
schema. Following this paradigm, the judges demonstrative reasoning then
arrives at the acceptable decision.4
The acceptable decision terminates the decision-making process as a
product of systematic jurisprudence. This system of jurisprudence must not only
make sure that there is good inter-rater reliability among the courts members in
general and the Supreme Court justices in particular, but that the system
concludes to a legal or juridical singularity recognized to be true and credible.5
The quest for concordance in Ronald Dworkins right answer thesis
illustrates this theory,6 as well as Justice Holmes hint of universal law,7 John
Rawls veil of ignorance,8 and Jrgen Habermas ideal speech situation.9 The
determination of the ideal and the only true court decision presupposes that

Inter-rater reliability quantifies the closeness of scores assigned by a pool of raters to the same
study participants. See Kilem Li Gwet, Computing inter-rater reliability and its variance in the presence of
high agreement, 61 BRIT. J. MATH. & STAT. PSYCH. 29, 29 (2008). In this paper, inter-rater reliability,
inter-rater agreement, or concordance is introduced to highlight the theoretical concept of an
optimized method, process or tool of data gathering. Such judicial tools are described to
juxtapose the formal statistical concept with generally accepted judicial and legal goal of
consistency.
3 See generally BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).
4 Thomas C. Grey, Langdells Orthodoxy, 45 U. PITTS. L. REV. 1 (1983). The author thanks
Prof. Maximo Paulino Sison III for this explanation, discussed extensively in his course Legal
History, College of Law, University of the Philippines (2013).
5 The determinacy of the singularity is assumed to be paramount in these theories. Interrater reliability and determinacy are not synonymous, i.e., although the process of arriving at
decisions may be substantively different, the end-decision may be the same. The Langdellian
hypothesis, however, complements the preposition in such that the judicial decision-making
processes must be consistent. See id. The word true here follows Justice Holmes test of the
market of ideas. Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
6 See RONALD DWORKIN, A MATTER OF PRINCIPLE (1985).
7 Oliver Wendell Holmes, The Path of the Law, 110 HARVARD LAW REVIEW 991, 1009
(1997).
8 JOHN RAWLS, A THEORY OF JUSTICE 118 (rev. ed. 1991) (Somehow we must nullify
the effects of specific contingencies which put men at odds and tempt them to exploit social and
natural circumstances to their own advantage. Now in order to do this I assume that the parties
are situated behind a veil of ignorance).
9 See Jrgen Habermas, Wahrheitstheorien, in WIRKLICHKEIT UND REFLEXION 211-265 (H.
Fahrenbach ed. 1973); Jrgen Habermas, Reflections on the linguistic foundations of sociology: The
Christian Gauss Lectures (Princeton University, February-March 1971), in ON THE PRAGMATICS OF
SOCIAL INTERACTION 1-103 (B. Fultner trans. 2001).

the juristic mechanisms in place were formulated to effectuate a goal. This goal,
more often than not, is usually a set of abstract principles with natural law
undertones, such as justice, equity, and autonomy. It is these principles that
judges have the moral authority to reflect upon and integrate in the democratic
and political legal system.10
II. THE STATE OF UNIFORM LEGAL MEANING
The decision-making process is, however, more complex, integrated, and
multivariate. The theoretical reduction of Langdells legal formalism gives way to
legal realism propounded by John Chipman Gray, Oliver Wendell Holmes, and
Karl Llewellyn. Under the realist postulates, the philosophical conjectures of
formalism need to yield to empiricism in formulating a general theory to explain
the court decision-making process. The study of the nature of legal knowledge
has shifted from metaphysics to phenomenology as a whole or the real
experiences in law.11
But as factors affecting the decisions of the Court as a collegiate body
and members of the Court individually have been extensively reviewed, studies
have yielded diverse explanations.12 While the scholarly interest since Herman
Pritchetts seminal work has been so great as to create a discipline in itself, the
attitudinal perspective in explaining judicial decision-making remains inchoate.13

10

See T.R.S. ALLAN, CONSTITUTIONAL JUSTICE: A LIBERAL THEORY OF THE RULE OF

LAW (2001); RAWLS, supra note 8, at 3 (Justice is the first virtue of social institutions, as truth is
of systems of thought. A theory however elegant and economical must be rejected or revised if it
is untrue; likewise laws and institutions no matter how efficient and well arranged must be
reformed or abolished if they are unjust. Each person possesses an inviolability founded on
justice that even the welfare of society as a while cannot override); JOHN RAWLS, POLITICAL
LIBERALISM (1996); T. TULLY, STRANGE MULTIPLICITY: CONSTITUTIONALISM IN AN AGE OF
DIVERSITY 7 (1995) (The question of our age . . . [is] whether a constitution can give recognition
to the legitimate demands of the members of diverse cultures in a manner that renders everyone
their due).
11 Legal realism is [t]he theory that law is based, not on formal rules or principles, but
instead on judicial decisions that should derive from social interests and public policy. BLACKS
LAW DICTIONARY 979 (9th ed. 2009). Compare with, legal formalism. Id., 977. (The theory that
law is a set of rules and principles independent of other political and social institutions). See also
John Bilyeu Oakley, Taking Wright Seriously: Of Judicial Discretion, Jurisprudents, and the Chief Justice, 4
HAST. CONSTL L. Q. 789 (1977) (on a discussion of judicial discretion and the jurisprudential
debate between legal formalism and legal realism); H. L. A. HART, THE CONCEPT OF LAW (2d ed.
1994) (on legal positivism in general).
12 C. HERMAN PRITCHETT, THE ROOSEVELT COURT: A STUDY IN JUDICIAL POLITICS
AND VALUES, 1937-1947 (1948) (arguing that judges decide cases based on their personal policy
preferences rather than legal precedents). See also JEFFREY A. SEGAL & HAROLD J. SPAETH, THE
SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002); Lawrence Baum, What
Judges Want: Judges Goals and Judicial Behavior, 47 POL. RES. Q. 749 (1994); William Mishler &
Reginald S. Sheehan, Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A
Micro-Analytic Perspective, 58 J. POL. 169 (1996) (finding that the impact of public opinion is greatest
among moderate justices who are likely to hold critical swing positions in the Court); Michael
Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New
Empiricism, U. ILL. L. REV. 819 (2002).
13 See FORREST MALTZMAN, JAMES SPRIGGS & PAUL J. WAHLBECK, CRAFTING LAW ON
THE SUPREME COURT: THE COLLEGIAL GAME (2000).

In judicial politics, this attitudinal model focuses on the individual level of

judges, presuming that decision-makers personal values determine, to a
significant degree, the direction of votes cast within judicial institutions. In other
words, a judges political preferences, which are believed to be shaped by
various background experiences and social characteristics, are seen largely to
explain the behavior of the appellate court judge.14 The attitudinal perspective,
however, is far from inceptive and evidence continues to be sought at how judges
and the supreme courts further national policies and support legal realism.15
The divergence in the decisions among justices in a court of last resort
points to the operation of the attitudinal model in such courts and given that
judicial backgrounds are essentially individualistic and particular, the juristic
singularity is undermined to give way to the attitudinal instance. The extent of
this individual inclination is, however, in theory attenuated by the formal state
policies. Set state policies, in other words, give unity in interpretation.
Nonetheless, this circumstance does not preclude a policys subjection to the
moral concurrence of the judge or justice.16
Consequentially, where justices disagree in both moral standards,
jurisprudence shifts in every instance wherein personal prejudging is utilized and
given sufficient vote.17 The impact of arbitrary jurisprudence in the courts risks
neutralizing the juristic determinacy that serves as a hallmark of effective legal
systems.18
The semantic character of supreme charters or constitutions further
complicates interpretation. The primacy of constitutions as the supreme law of

14 Melinda Gann Hall & Paul Brace, Order in the Courts: A Neo-Institutional Approach to
Judicial Consensus, 42 WEST. POL. Q. 391, 391 (1989).
15 See Mark Tushnet, The Politics of Constitutional Law, in THE POLITICS OF
CONSTITUTIONAL LAW: A PROGRESSIVE CRITIQUE 219-235 (David Karyis ed. 1990); PETER
IRONS, A PEOPLES HISTORY OF THE SUPREME COURT: THE MEN AND WOMEN WHOSE CAUSES
AND DECISIONS HAVE SHAPED OUR CONSTITUTION 395-408 (1999).
16 In American constitutional law, the civil rights movement and New Deal have been
particularly well-documented and researched in light of judicial decisions affirming or rejecting
national policies. See, for example, Jack Balkin, Wrong Day it was Decided: Lochner and
Constitutional Historicism, 85 B. U. L. REV. 677 (2005); Cass Sunstein, Constitutionalism After the New
Deal, 101 HARV. L. R. 421 (1987).
17 The thought experiment of Fuller is demonstrable of this thesis. See Lon Fuller, The
Case of the Speluncean Explorers, 62 HARV. L. REV. 616 (1949). Moral assents are also observable in
Philippine case law. See People v. Caruncho Jr., G.R. No. L-57804, Jan. 23, 1984; Imbong v.
Ochoa, G.R. No. 204819, Apr. 8, 2014. In the Philippine setting, flip-flopping decisions have
been particularly discussed. See League of Philippine Cities v. Commission on Elections, G.R.
No. 176951, June 28, 2011 (Sereno, J., dissenting).
18 This juristic determinacy is a necessity according to Lon Fuller, such that
contradictions in the law, unstable legislation, and ad hoc or inconsistent adjudication are routes
for failure in any legal system. See LON FULLER, THE MORALITY OF LAW (2d ed. 1969). See also
Colleen Murphy, Lon Fuller and the Moral Value of the Rule of Law, 24 L. & PHILO. 239, 240-241
(2005) (Laws must be generalspecifying rules prohibiting or permitting behavior of certain
kinds. Laws should be widely promulgated, or publicly accessible . . . Laws should be prospective
. . . Laws must be clear . . . Laws must be non-contradictory . . . Laws must not ask the
impossible. . . . Nor should laws change frequently; the demands laws make on citizens should
remain relatively constant. Finally, there should be congruence between what written statute
declare and how officials enforce those statutes); Jeremy Waldron, Why Law Efficacy, Freedom, or
Fidelity?, 13 L. & PHILO. 259 (1994).

the land has an effect of aggravating the problem,19 by expanding judicial

discretion in effectuating words and discovering the meaning of those words.20
That the concept of constitutionalism or the rule of law even precludes
constitutional reform reflects a precarious nature of knowledge within the sphere
of constitutional meaning.21
The breadth of constitutional law interpretation as a product of sociology
further complicates the search for constitutional truths or stability.22 And since
the Supreme Courts or constitutional courts, in nations where judicial review are
accepted, are generally composed of executive-appointed magistrates and are not
completely free of political color, the possible spectrum of interpretation itself
becomes wider.23 Laurence Tribes discourse on constitutional interpretation, for
example, provides six modes of interpretation and [n]o one mode of
interpretation can claim always to take priority or to be necessarily decisive.24
This juristic indeterminacy is thus especially prominent in constitutional
law, corollary to the power of judicial review. Since Marbury v. Madison25, judicial
review in the United States has been entrenched and no one offers any sustained
argument that the exercise of judicial review is improper.26 The debate, rather, is
over the appropriate means of interpreting the Constitution. It is to this
interpretation that indeterminacy prevails. The history of judicial review in
American constitutional jurisprudence has revealed distinct constitutional
indeterminacy.27
As amply reflected by Barry Friedman,
For most of the nations early history, countermajoritarian criticism was
more likely if there was a perception that judges were imposing their

19 See interpretations and applications in Vanhornes Lessee v. Dorrance, 2 U.S. 304, 308
(1795); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 316 (1819); Ex parte Siebold, 100 U. S.,
371, 394 (1879); Adkins v. Childrens Hospital, 261 U. S. 525, 544 (1923); Biraogo v. The
Philippine Truth Commission of 2010, G.R. No. 192935, 637 SCRA 78, 137-138, Dec. 7, 2010.
20 Judicial review is based on the legal foundations of a written Constitution. See Texas v.
White, 74 U.S. 700, 700, 721 (1868); Fairbank v. United States, 181 U.S. 283, 285-286 (1901);
Muller v. Oregon, 208 U.S. 412, 412 (1908).
21 Dante B. Gatmaytan, Can Constitutionalism Constraint Constitutional Change?, 3
NORTHWESTERN INTERDISCIPLINARY L. REV. 22, 22, 25-27 (2010).
22 Michael C. Dorf, The Undead Constitution, 125 HARV. L. REV. 2011 (2012).
23 See supra note 12 and accompanying text. See also Myrna S. Feliciano, Ethics, Integrity,
and Judicial AccountabilityThe Philippine Experience, in 19 ASIA PACIFIC JOURNAL FORUM 206
(2009); Allan Chester Nadate, Jelson Valdoz & John Dominic Zafe, Perspectives of Judicial
Independence in the Philippine Politico-Ethical Nomos, www.academia.edu/6449682 (Mar. 2014).
24 LAWRENCE TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 30, 32 (2000 ed.); see also
PACIFICO AGABIN, THE POLITICAL SUPREME COURT (2012).
25 5 U.S. (1 Cranch) 137, 137 (1803). (It is emphatically the duty of the Judicial
Department to say what the law is. Those who apply the rule to particular cases must, of
necessity, expound and interpret the rule. If two laws conflict with each other, the Court must
decide on the operation of each. If courts are to regard the Constitution, and the Constitution is
superior to an ordinary act of the legislature, the Constitution, and not such ordinary act, must
govern the case to which they both apply).
26 Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to
Judicial Supremacy, 73 N. Y. U. L. REV. 333 (1998), citing Steven L. Winter, An Upside/Down View of
the Countermajoritarian Difficulty, 69 TEX. L. REV. 1881, 1924 (1991).
27 Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian
Difficulty, Part Five, 112 YALE L. J. 153, 171 (2002).

own values rather than adhering to some fixed understanding of what

the Constitution required. During the controversies of 1800, for
example, the claim was that judges partisan political views were driving
them away from settled constitutional meaning. Throughout the Lochner
era the claim was that class bias and laissez-faire economic views were
causing judges to disregard the true meaning of the Constitution. By
1940, however, the bubble had burst on the idea that the Constitution
had one true meaning. Indeed, the widespread acceptance of judicial
supremacy was all the more interesting in light of equally widespread
understanding that there was a lack of determinacy to constitutional
adjudication, thus permitting the Justices broad discretion. Krocks
1940 article continued, This satisfaction exists with full knowledge of
the fact that the Constitution is merely what a majority of the justices
say it is.
Throughout the period of the Warren Court there was general
consensus that the Supreme Court enjoyed great flexibility in
interpreting the Constitution, and that the idea of any one correct
interpretation was elusive. While discussing how the Court had been
demythologized, Professor Lloyd Wells stated that after 1937 the
notion of a fixed constitution and of judges controlled by an objective,
external entity called law was examined and rejected by an ever
increasing number of scholars, teachers, publicists, and other opinion
leaders whose function it is to interpret the Court to the public at
large. Even toward the end of the Warren Court, conservative
commentators such as James J. Kilpatrick would acknowledge (bowing
to reality, if not altogether happy about it) that [t]he Constitution . . . is
what the judges say it is.28

As with Friedmans analysis, a fixed understanding of what the

Constitution require[s] predicates every decision-making process wherein the
Constitution is interpreted. And this determination of the executable mandates of
the provisions of the Constitution, however, is remarkably an internal judicial
affair. Such determination is nonetheless made more cogent in the principle that
justices are guided by principles such as statutory construction, rules that exist to
retain the Constitutions vitality over time.29
Constitutional construction is meant to discover what the Constitution
requires in a faithful, consistent, precise, and standardized manner. The
inexplicably various ways by which to read the Constitution . . . does not serve
to weaken the law but only to explain it more fully. . . . Modes of interpretation
are means however intricate of explicating [the] subject and substance.30
Equally important in the determination of Constitutional meaning are
previous conclusions on constitutional interpretation arrived by the Court. These
precedents both complement and reify constitutional jurisprudence to the effect
of law. 31 Insofar as the Court remains faithful to precedents, juristic determinacy

28

Id., 171-172 (citations omitted). Compare, Hughes, supra note 1.

DANTE B. GATMAYTAN, LEGAL METHODS ESSENTIALS 42 (2012), citing Laurence H.
Tribe, Approaches to Constitutional Analysis, in AMERICAN CONSTITUTIONAL LAW (1988).
30 Id.
31 See Friedman, supra note 27, at 185-190 (on a discussion of Brown v. Board of
Education, 347 U.S. 483 (1954), declaring that racial segregation in schools is unconstitutional,
overturning the previous separate but equal interpretation); at 203-206 (on a discussion of
29

is preserved as an integral component of the rule of law,32 such that [t]he rule of
law depends in large part on adherence to the doctrine of stare decisis,33 for as the
Court quipped in Planned Parenthood v. Cassey, Liberty finds no refuge in a
jurisprudence of doubt.34
In the determination of constitutional meaning, the flaws of both
methods are easily exploited within the scope of an attitudinal model during
decision-making. The jurisprudence of doubt easily manifests, such that
statutory construction, while paramount, remains complicated and convoluted35
and canons of statutory construction may mirror anti-canons of equal
applicability.36
Precedents are also problematic: If precedent drives Court decisions, as
many in political science and law maintained, then why did various Justices in
interpreting the same legal provisions consistently reach different conclusions on
important questions of the day?37 Legal realism, in this light, eventually leads to
the conclusion that rules based on precedent [are] little more than smokescreens
behind which judges hide their values.38
The fulcrum of common law interpretation further strengthens the
attitudinal model through the emphases on principles and morality and weakens
juristic determinacy by judicial moral relativism.39 The fact remains that judges

American Supreme Courts decision in Engel v. Vitale, 370 U.S. 421 (1962), initiating strict
neutrality in the interpretation of the non-establishment clause).
32 Jeremy Waldron, Stare Decisis and the Rule of Law: A Layered Approach, 111 MICH. L.
REV. 1, 31 (2012) (First, the rule of law generates a distinctive perspective on stare decisis . . . But
it might be true the other way around: the justification of stare decisis might depend to a large
extent on the rule of law. . . . And second, if the justification of stare decisis does not depend on
the rule of law, it is best to understand the impact of rule-of-law principles on stare decisis in
layers).
33 Welch v. Texas Department of Highways & Public Transportation, 483 U.S. 468, 47879 (1987).
34 505 U.S. 833, 844 (1992).
35 See Yule Kim & George Costello, Statutory Interpretation: General Principles and Recent
Trends, United States Congressional Research Service Report for Congress (Aug. 2008),
http://www.fas.org/sgp/crs/misc/97-589.pdf (In analyzing a statutes text, the Court is guided
by the basic principle that a statute should be read as a harmonious whole, with its separate parts
being interpreted within their broader statutory context in a manner that furthers statutory
purpose. The various canons of interpretation and presumptions as to substantive results are
usually subordinated to interpretations that further a clearly expressed congressional purpose. The
Court frequently relies on canons of construction to draw inferences about the meaning of
statutory language).
36 Karl N. Llewellyn, Remarks on the Theory of Appellate Decisions and the Rules of Canons
About How Statutes are to be Construed, 3 VAND. L. REV. 395, 401 (1950).
37 Lee Epstein, Jack Knight & Andrew D. Martin, The Political (Science) Context of Judging,
47 S. L. U. L. J. 783, 787 (2003).
38 Id. See also Lawrence C. Marshall, The Canons of Statutory Construction and Judicial
Constraints: A Response to Macey and Miller, 45 VAND. L. REV. 673, 674 (1992) (highlighting judicial
relativism or the false notions that all judges share the normative view that in interpreting statute
the judges natural desire to implement the best public policy should trump the effort to discern
congressional intent or purpose through canons and other devices and the public, the
Congress, and the legal community would tolerate courts whose statutory interpretation decisions
make no effort to tie their results back to the statute at issue).
39 PATRICK DEVLIN, THE JUDGE 177 (1979) (Historically, [common law] is made quite
differently from the Continental code [civil law or Romanesque law]. The code precedes
judgments; the common law follows them. The code articulates in chapters, sections, and

can opt out of the decisional framework provided by the canons simply by
deciding a particular case without invoking a canon of construction. Instead of
using canons, a judge could decide a case on the basis of precedent, or by
reasoning by analogy . . . or on grounds such as public policy, intrinsic fairness,
economic efficiency, or wealth maximization.40
In fact, as judicial creations, the canons can be understood best as
devices that were designed to serve the self-interest of their inventorsthe
judiciary,
Thus, at least to some extent, the use of the canons can be viewed as
manifestations of the fact that judges are agents of the people, and as
with any agency relationship, agency costs arise due to the inability of
the principals to monitor and control their agents. [While] canons can
be used to serve judicial interestssometimes at the expense of
aggregate social welfare . . . not all invocations of the canons are
antithetical to social interests. Often judges self-interested use of the
canons is perfectly consistent with societys interests.41

Societys interests are, however, not necessarily determinate or articulate

and in events wherein popular constitutionalism falls silent, the Court, following
the positivist logic, is free to discern the hidden majoritarian or utilitarian
interests.42
The consistency dilemma creates both tautology and vicious cycle.
Wherein popular sentiments furthering indeterminate social interests are
unknown or neutral, arbitrary jurisprudence is borne to legitimize or advance
incipient interests.43 In fact, this observation has resulted into the Selection
Hypothesis, a novel theory on court decision-making that supplements the
attitudinal model.44

paragraphs the rules in accordance with which judgments are given. The common law on the
other hand is inarticulate until it is expressed in a judgment. Where the code governs, it is the
judges duty to ascertain the law from the words which the code uses. Where the common law
governs, the judge, in what is now the forgotten past, decided the case in accordance with
morality and custom and later judges followed his decision. They did not do so by construing the
words of his judgment. They looked for the reason which had made him decide the case the way
he did, the ratio decidendi as it came to be called. Thus it was the principle of the case, not the
words, which went into the common law).
40 Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial
Preferences, 45 VAND. L. REV. 647, 649 (1992).
41 Id. (Emphasis supplied). Compare, Marshall, supra note 27.
42 Russell Hardin, Liberalism, Constitutionalism, and Democracy, 1 CHIN. PUBLIC AFFAIRS Q.
255, 266 (2005) ([C]onstitutions are essentially weak devices. They can coordinate us if we can
coordinate ourselves, and probably not otherwise. Democracy is an even weaker device, because
we cannot make it work in any grand sense and we cannot be sure whether its results match
popular views, which are generally inarticulate, so inarticulate as to suggest that there may be no
popular view).
43 See, e.g., Scott Barclay & Shauna Fisher, Cause Lawyers in the First Wave of Same Sex
Marriage Litigation, in CAUSE LAWYERS AND SOCIAL MOVEMENTS 84-97 (2006).
44 Jeff Yates & Elizabeth Coggins, The Intersection of Judicial Attitudes and Litigant Selection
Theories:
Explaining
U.S.
Supreme
Court
Decision
Making
(Jan.
2009),
http://works.bepress.com/jeff_yates/3 (Selection Hypothesis posits that court outcomes are
largely driven by the litigants' strategic choices in the selection of cases for formal dispute or
adjudication -- forward thinking litigants settle cases where potential judicial outcomes are readily
discernable (e.g. judicial attitudes are known) the strategic case sorting process affect the

The integrated theories explicate the discretionary power of the judge and
the litigant on the resolution of the case, which further dissolve determinability.45
In constitutional law, when the use of canons of statutory construction and
precedents are expansive and unrestrained, the decisions arising from the
judgment ripples with effects of constitutional proportions. The Court, as a
pragmatic adjudicator becomes the shaper and predictor of the future.46
III. FOUNDATIONS OF DILEMMA
This dilemma of juristic indeterminacy is not at all unique to American
law and jurisprudence, particularly in respect to constitutional law. The processes
of legal transplantation have embedded juristic indeterminacy in the Philippine
constitutional jurisprudence through similar mechanisms. The history of the
Philippine legal system points to the imposition of not only the American
constitutional framework and institutions, but also their limitations and failures.
The earlier imposition of the Spanish civil tradition, while influential in Filipino
private law, has been diluted by the Anglo-American common law tradition.
Nevertheless, the civil law tradition contributes to the same effect of
juristic indeterminacy in Philippine constitutional law principally through
institutional limitations and pervasive sociolegal ideology, such as the judicial
respect of jurisconsults or commentaries to statutory codes. This
contemporaneity of the two transplanted colonial legal systems, with little
recourse to autochthonous law, is striking. In the words of Owen Lynch, Jr., To
an astonishing degree, the highly centralized Philippine national legal system
continues to utilize and reinforce legal structures and concepts first imposed
during the Spanish and North American colonial regimes.47
This mixed or hybrid legal traditions in the Philippine legal system
increase the opportunity for arbitrary jurisprudence by arming the judge and
justice with the interpretive tools of both legal systems.

influence of judge ideology or attitudes on judicial outcomes). See also George L. Priest &
Benjamin Klein, The Selection of Disputes for Litigation, 13 J. L. STUD. 1, 4 (1984) ([P]otential litigants
form rational estimates of the likely decision).
45 See Maureen Armour, Rethinking Judicial Discretion: Sanctions and the Conundrum of the Close
Case, 50 S. M. U. L. REV. 493, 504-505 (1997) (differentiating between a principled decisionmaking paradigm in judicial decision-making and a pragmatic adjudication paradigm, the
former is more restrictively traditional and formalistic view of the legitimate exercise of judicial
power and the latter, a more expansive view); P.S. Atiyah, From Principles to Pragmatism: Changes in
the Function of Judicial Process and the Law, 65 IOWA L. REV. 1249 (1980).
46 Marie A. Failinger, Against Idols: The Court as a Symbol-Making or Rhetorical Institution, 8 J.
CONSTL L. 367, 375-77 (2006).
47 Owen J. Lynch, Jr., The Philippine Indigenous Law Collection: An Introduction and Preliminary
Bibliography, 58 PHIL. L. J. 457, 457 (1983).

A. The Transit of Spanish Colonialism

It bears no need to explain that the histories of the Filipino are starved of
self-identification and autonomy and replete with mis-identification and
subjugation.
The nation, composed of more than 7,000 islands, saw the establishment
of multiple sultanates, rhajanates, countries and nations, dynasties,
confederations, and tribes without a recognizable communitarianism during the
pre-colonial era. Up north is the Kingdom of Tondo, a thalassocracy founded in
Manila Bay. Down south are the Kingdom of Butuan and the Sultanates of Sulu,
Maguindanao, and Lanao. And in the Visayas stood the Rajahnate of Cebu and
the Confederation of Madja-as in Aklan. Although commerce is active among
them, the sovereignties were not embedded in a greater sociopolitical structure.48
The era since the discovery of the Spanish throne of the island of
Homonhon ushered a recognizable form of Filipino statism. The conversion of
Rajah Humabon of Cebu into catholicized Carlos was prefatory to what would
become Spains imperialism by sword and cross throughout the country.49 When
Ferdinand Magellan died in the Battle of Mactan, Trinidad and Victoria would sail
to return to Spain. The next Spanish expeditions, conquistadors Ruy Lopez de
Villalobos, Miguel Lopez de Legaspi, and Juan de Salcedo would initiate a
consolidation of the islands and contiguous realms within islands. By the end of
the campaigns, the Philippines became a Spanish colony.
The colonialism meant the foundation of a government in the islands and
consequentially, the organization of a rule of law that fits the policy regime. At
the conquest of the Philippines by Magellan and his predecessors, the Leyes de
Toro were in force in Spain. When Legaspi established in these Islands the
Spanish dominion (years 1565-1572), the Nueva Recopilacin promulgated in 1567
was in force in Spain. In said 16th century, efforts were made in Spain to compile
the Spanish Colonial laws during the reigns of Charles V and his son Philip II.
Finally in the next century in 1680, Charles II promulgated the Recopilacin de las
Leyes de Indias which was made then the law in the Philippines, as well as in the
other Spanish colonies.50
Throughout the Spanish colonial venture, Spanish laws would be
extended or adopted to the Philippine Islands as legal precedents or suppletory
laws. Alongside the ongoing foment of Philippine revolution, Spain has extended
more of its laws in the Islands, as the Spanish law of Waters in 1873, the Spanish
Penal Code in 1886, the Code of Commerce in 1888, and the Spanish Civil Code

48 See AMER M. BARA-ACAL & ABDULMAJID J. ASTIH, MUSLIM LAW ON PERSONAL

STATUS IN THE PHILIPPINES (1998); JOHN LEDDY PHELAN, THE HISPANIZATION OF THE
PHILIPPINES: SPANISH AIMS AND FILIPINO RESPONSES, 1565-1700 (2010); VICENTE L. RAFAEL,
CONTRACTING COLONIALISM: TRANSLATION AND CHRISTIAN CONVERSION IN TAGALOG
SOCIETY UNDER EARLY SPANISH RULE (1993); ONOFRE D. CORPUZ, 1 THE ROOTS OF THE
FILIPINO NATION (1989); TRIUMPH OF MORO DIPLOMACY: THE MAGUINDANAO SULTANATE IN
THE 17TH CENTURY (1989); WILLIAM HENRY SCOTT, BARANGAY: SIXTEENTH-CENTURY
PHILIPPINE CULTURE AND SOCIETY (1997).
49 See generally Owen Lynch, Jr., The Legal Bases of Philippine Colonial Sovereignty, 62 PHIL. L.
J. 279 (1987).
50 Aurelio C. Ramos, The Roman Law in the Philippines, 9 PHIL. L. J. 185, 187 (1930).

10

in 1889. Enactments of these laws would be made besides special laws

occasionally promulgated.51
By the close of the 19th century, the Spanish Regime in the Philippines
would witness the statism forces that have brought about the civil law tradition.52
As the French Revolution rejected continental Europes jus commune, the
Philippine revolutionary forces formed a Constitution as a glorification of the
nation state.53 And as the Spanish dominion in the world weakened, the Old
World saw the rise of New World imperialism, one wherein the Philippines,
which had then established its First Republic, would be caught along.
B. The Rise of the American Empire
The sinking of USS Maine in the Havana Harbor ignited American
intervention against Spain and completed the fall of the Spanish regime in the
Philippine islands. After the destruction of the ship, newspaper publishers Hearst
and Pulitzer transformed New York media into a theater for sensationalism,
describing the atrocities of the Spanish kingdom over the islands.54
The American press treated readers to daily fare on the subject of
reconcentration. No account was too gruesome. . . . Stories of Cuban slaughter
comforted Americans not only by giving them solace in others misery but also
by reinforcing a familiar stereotype of the cruel, lascivious, and lazy Spaniard,
historically the key antithesis to the humane, restrained, and industrious AngloSaxon, whose burden it was to save humanity.55 The pictures were furnished, as
well as the war.56
Eager to emancipate, America pushed with war under a Messianic guise
to free Cuba from the Spanish plague, which would be reechoed across the
Pacific. As an American commentator argued,
Despite the general belief that the acquisition of the almighty dollar is
the height of our ambition, the aims of all American military
expeditions, throughout our entire history, have been absolutely
altruisticalways for the elevation of the down-trodden or the relief of
the victims of former tyranny. We have constantly endeavored to create

51

Id., 187-88.
See JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO
THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 27-33 (2d ed. 1985).
53 See Teodoro M. Kalaw, The Constitutional Plan of the Philippine Revolution, 1 PHIL. L. J. 204
(1914).
54 JOHN LAWRENCE TONE, WAR AND GENOCIDE IN CUBA, 1985-1898 218-22 (2006).
(Lurid accounts of reconcentration, combined with lower newspaper prices, more photographs,
and flashier typefaces, allowed Pulitzer to increase subscriptions to the [New York] World from
400,000 in 1895 to 822,804 in 1898. William Randolph Hearst employed the same techniques and
stories to raise the circulation of his New York Journal even more dramatically).
55 Id., 218. (Citations omitted).
56 Hearst was quoted, You furnish the pictures and Ill furnish the war when a Cubabased correspondent said, Everything is quiet. There is no trouble here. There will be no war. I
wish to return. See JAMES CREELMAN, ON THE GREAT HIGHWAY: THE WANDERINGS AND
ADVENTURES OF A SPECIAL CORRESPONDENT 177-178 (1901); OLIVER CARLSON & ERNEST
SUTHERLAND BATES, HEARST: LORD OF SAN SIMEON 97 (936).
52

11

self-respecting, self-supporting citizens, capable of appreciating liberty,

and of intelligently exercising that greatest of all blessings, selfgovernment.57

This blessing of self-government is cogent in the contemporary American

debate. In the words of Justice Wilfley, If we succeed in carrying these great
forces of American liberty and American justice to the Philippines, though it
requires a century to do so, our labors will have rewarded a thousand fold.58 The
same statements, ruminations on the legacy of American liberty and American
justice [which will descend] to posterity along with Hebrew faith, Greek art, and
Roman law, as one of the most precious heritages of mankind,59 have been
complemented by the popular and popularly acceptable rhetoric on Spanish
ignominy.
Believing in the bane of Spanish colonialism, America pursued their own,
that the presence of evil must be quashed by the New Evangel of Western
civilization.60 The dichotomy between the good and bad masters eventually
became a stronger rallying point towards the annexation of the islands than the
benevolent American gifts.
The black legend of Spain, inherited from the victims of Spanish
hegemony in the sixteenth and seventeenth centuries, held that
Spaniards suffered from fiery temperaments, fanaticism, laziness,
inconstancy, and an excess in bloodlust. As the Spanish empire
crumbled, Spain became the quintessential dying nation, in Lord
Salisburys memorable phrase. She became even more capricious and
dangerous, like an aging lion that has not yet admitted it is no longer
the alpha male of the pride.61

American politicians thereafter perfected Columbias image as the bringer

of hope upon the enslaved legions of the Spanish crown. American Senator
Albert Beveridge chanted the anthem in The March of the Flag62 and consummated
warmongering with national pride.
His became the voice of democracy and the bungle call that enchanted
and inspired the America that just ended its Civil War. Politicians joined the rally
to annex the Philippines. And in their mission of civilization, America joined

57 Louis Livingston Seaman, The Problem of the Philippines, 30 ANN. AM. ACAD. POL. &
SOC. SCI. 130-134, 130 (1907). This statement would be belied by Western ethnocentrism rhetoric.
Id., 132-33 (To suppose that from the low-bred Filipino there could be evolved in a single
generation one worthy or competent to exercise self-government, is to defy every law of
anthropology and natural selection, and to indulge in the wildest optimism . . . Is the African or
Malay savage so infinitely the intellectual superior of the Caucasian, that he can emerge from his
savagery into this sphere of civilization, and attain this rich inheritance in a single decade?).
58 L. R. Wilfley, Our Duty to the Philippines, 10 YALE L. J. 309, 314 (1901).
59 Id., 313.
60 See W. A. Pfeffer, A Republic in the Philippines, 168 N. AM. REV. 310, 310-320 (1899) (Is
it too much to add that to Anglo-Americans is given the work of spreading the Gospel of good
will to men through commerce and Christianity, and thus carrying on the work of replenishing
the earth and subduing it?).
61 TONE, supra note 54, at 218. (Citations omitted.)
62 Albert J. Beveridge, The March of the Flag, Speech opening the Indiana Republican
Campaign at Tomlinson Hall, Indianapolis, September 16, 1898, in THE MEANING OF THE TIMES
AND OTHER SPEECHES 47-57 (1908).

12

European powers across the Atlantic in their scrambling for colonies,

protectorates, and spheres of influence fittingly depicted in the famous caricature,
En Chine Le gteau des Rois et... des Empereurs.
So went the triumphal oration of Senator Beveridge,
Distance and oceans are no longer arguments. The fact that all the
territory our fathers bought and seized is contiguous is no longer
argument. In 1819 Florida was further from New York than Porto Rico
is from Chicago to-day; Texas further from Washington in 1845 than
Hawaii is from Boston in 1898; California more inaccessible in 1847
than the Philippines are now . . . The ocean does not separate us from
the lands of our duty and desirethe ocean to join us, a river never to
be dredged, a canal never to be repaired. Steam joins us; electricity joins
usthe very elements are in league with our destiny. Cuba not
contiguous! Porto Rico not contiguous! Hawaii and the Philippines not
contiguous! Our navy will make them contiguous . . . American speed,
American guns, American heart and brain and nerve will keep them
contiguous forever.63

But there are also those who want to haul down the flag. The political
pluralism in America brought about discordance in sentiments towards Philippine
annexation. Much of these critiques, however, revolve around prevailing Western
ethnocentrism.
In the words of Senator G. G. Vest, The idea of conferring American
citizenship upon the half civilized, piratical, muck-running inhabitants of two
thousand islands, seven thousand miles distant, in another hemisphere, and creating
a State of the Union from such materials, is so absurd and indefensible that the
expansionists are driven to the necessity of advocating the colonial system of
Europe, against which the American Colonies revolted when its application to them
was attempted by the King of England,64
Let us listen to that lofty resolution of Congress declaring the war with
Spain to be waged, not for conquest, but for humanity and the
liberation of Cuba from Spanish despotism; and then let us hear with
impatient disgust those who are shouting against hauling down the
flag, which they would dishonor and degrade by violating this solemn
pledge.
Let the flag of our Republic not be hauled down, but brought back
to congenial soil where it will wave over freemen, instead of floating

63

Id., 49-52.
G.G. Vest, Objections to Annexing the Philippines, 168 N. AM. REV. 112-120, 112 (1899).
Vest also provided for an account of constitutional jurisprudence against Americas colonialist
ambitions ([T]here is certainly no power given by the Constitution to the Federal Government
to establish or maintain colonies bordering on the United States or at a distance, to be ruled and
governed at its own pleasure, or to enlarge its territorial limits in any way, except by the admission
of new states, Vest, supra, at 114, citing Dred Scott v. Sanford, 60 U.S. 393, 446 (1857) 446; id.,
115, citing Loughborough v. Blake, 18 U.S. 317 (1820); The National Bank v. County of Yankton,
101 U.S. 129 (1880); Thomson v. Utah, 170 U.S. 343 (1898); The American Publishing Company
v. Fisher, 166 U.S. 464 (1897); Crandall v. Nevada, 73 U.S. 35 (1868).
64

13

above conquered islands in another hemisphere and ten million halfbarbarians bought for two dollars each.65

At the end of the debate, the capitalist interests won over racist derision
and the Philippine Islands would see the dominion of America. Ironically, the
Spanish-American War redolent of emancipation rhetoric became the
legitimization for Philippine subjugation. The Treaty of Paris of 1898 ended the
Spanish-American war only to affirm Americas beliefs of national greatness,
racial supremacy, commercial prosperity, military security, and territorial
expansion66 and clothed with the altruistic vision (or disillusion), acquired
Puerto Rico, Guam, and the Philippines as colonies. Cuba, meanwhile, gained its
independence.
The Treaty signaled the end of the Spanish Empire in the Americas and
the Pacific islands. The concession, signed on December 10, 1898, became a
concession that by virtue of Article III, Spain cede[d] to the United States the
archipelago known as the Philippine Islands [at] the sum of twenty million
dollars67
The Treaty marked the age of the United States as a world power and
domed the ceded territories upon the shadows of the American eagle. Indeed,
the period between 1898 and 1902 was a turning point in the development of
America as a world power. It was the birth of an empire and the emergence of
the United States as a paramount world power. America at last was recognized
and accorded as status of a colonial power, the same stature given to Germany,
France, Great Britain, Russia and Japan, the ruling imperial powers of the
period.68
C. Legal Chimerism and the Scope of Integration
The death of the Spanish sovereignty over the Philippines did not revive
the Philippines as a nation. The Castilian lion merely died and the American eagle
put up its eyrie upon the deserted den.69
As has been exclaimed, No sadder, no more shameful page has ever
been written in American history than that which [has been] written in the
Philippine islands. The United States, the land of freedom and justice, mowing
down the Filipinos by thousands, because they wish to be free and independent

65

Id., 120.
RENATO PERDON, FOOTNOTES TO PHILIPPINE HISTORY 59 (2010).
67 Treaty of Paris of 1898, 30 Stat. 1754, Dec. 10, 1898.
68 PERDON, supra note 66, at 55.
69 Legal chimerism here is inspired by the metaphor of Justice Jose P. Laurel, [The]
cross-breeding of the Castilian lion and the American eagle had resulted in the evil birth of a
phenomenal creature. JOSE P. LAUREL, ASSERTIVE NATIONALISM 80 (1931), quoted in Cesar
Lapuz Villanueva, Comparative Study of the Judicial Role and its Effect on the Theory on Judicial Precedents in
the Philippine Hybrid Legal Systems, 65 PHIL. L. J. 42, 42-43 (1990). The term chimera, describing
an imaginary monster compounded of incongruous parts, fits Justice Laurels metaphor. The
admixture of Spanish and Anglo-American law in the Philippines is not symmetric as the term
hybrid connotes. See infra, Part III-C and Part IV. The term chimera is arguably more
accurate.
66

14

themselves! The United States, which righteously went to war with Spain to
liberate Cuba, actually taking the place of Spain in shooting down a people who
have suddenly, from being patriots and lovers of liberty, become to us rebels
and traitors, because they decline to have the shackles of our sovereignty thrown
without ceremony upon their wrists!70
The Malolos Constitution that embodied the ideal of the Republic of the
Philippines was stripped of its authority as America claimed its purchase.71
Consequentially, the civil legal tradition of Spain had to accommodate to the
common law brought by America and due to the usurping of sovereignty, the
political and constitutional laws were entirely abrogated. As summarized by the
Filipino legal luminary, Jorge Bocobo,
The Civil Code has suffered modifications by the publication of the
Code of Civil Procedure which introduced new rules of guardianship,
administration of decedents estates, evidence and prescription. Those
parts of the Mercantile Code relating to sociedades annimas, commercial
papers, insolvency and prescription have been replaced by Act No.
1459, the Negotiable Instruments Law, the Insolvency Law, and the
Code of Civil Procedure, respectively, all of which originate from the
American law. As for the Spanish Penal Code, the Commission has
passed many Acts on crimes, according to American models. Our
entire adjective law is likewise drawn from American sources. Political
law is, of course, also patterned after American standards.72

The changes in mercantile law are compelled by necessity, much like

other legal transplantations, in view of the deep-seated economic relations
which are naturally begotten by the political connection between the mother
country [America] and the colony. In other aspects of law such as procedural
laws and rules on evidence, the reformation was due to the American models
superiority and the changes in administration of justice.73
The administration of justice under Spanish Royal Decrees was reformed
by General Orders 21, 29, and 47 and Act No. 136 to mirror that of the
American judicial system.74 Accordingly, the judge-made law or common law,
gained foothold in the unorganized territory. The decision of the Philippine
Supreme Court in In Re Shoop75 affirms this status of American common law in
the Philippine legal system.
IV. HYBRIDIZATION AND THE ROLE OF JURISPRUDENCE
In In Re Shoop, Justice George Malcolm answered a controversy he
propounded years before regarding the status of the Philippine territory: From a

70

The Conquest of the Philippines, 61 THE ADVOCATE OF PEACE (1984-1920) 54-56 (1899).
See Allan Chester Nadate, Failures of Philippine Constitutional Transplantation,
www.academia.edu/4761328 (2013) (discussing milestones on Philippine constitutional
transplantation and the resulting legal irritation).
72 Jorge Bocobo, Civil Law under the American Flag, 1 PHIL. L. J. 284, 302 (1915).
73 Id., 302-304.
74 See In re Shoop, 41 Phil. 213 (Nov. 29, 1920).
75 Id.
71

15

negative standpoint the Philippines occupy a relation to the United States

different from that of other non-contiguous territory; not a foreign country; not
sovereign or semi-sovereign; not a State or an organized, incorporated territory;
not a part of the United States in a domestic sense; not under the Constitution,
except as it operates on the President and Congress; and not a colony. The
Filipinos are neither aliens, subjects, nor citizens of the United States.76 What
the Philippines is an unorganized territory of the United States, under a civil
government established by the Congress.77
More than the question of territoriality, however, In Re Shoop pronounced
a clear declaration of the existence of Philippine Common Law,
The fact that prolific use of Anglo-American authorities is made in the
decisions of this court, combined with the fact that the available
sources for study and reference on legal theories are mostly AngloAmerican, present a practical situation at this moment from which this
court can draw but one conclusion, namely, that there has been
developed, and will continue, a common law in the jurisprudence of
this jurisdiction (which for purposes of distinction may be properly be
termed a Philippine Common Law), based on the English Common
Law in its present day form of an Anglo-American Common Law,
which common law is effective in all of the subjects of law in this
jurisdiction in so far as it does not conflict with the express language of
the written law or with the local customs and institutions.78

Philippine common law, however, is in a strict sense, not the common

law that Justice Holmes wrote about.79 Where the life of the law is experience and
not logic, common law provides the judge the avenues to accomplish the ends of
law as a lesson of history. Philippine common law, on the other hand, defers to
the legislature for the reification of experience and impresses upon the judge the
assumption that the judiciary must decide more logically than experientially (and
even more, more than teleologically).
The increasing infiltration of common law principles into the Philippine
jurisprudence amalgamated with civil law to attenuate the full extent of judicial
legislation found in common law through civil law institutional constraints.80 The

76

George A. Malcolm, The Status of the Philippines, 14 MICH. L. REV. 529, 549 (1916).
In re Shoop, 41 Phil. 213 (Nov. 29, 1920).
78 Id. The Court concluded, among others, that: In interpreting and applying the bulk of
the written laws of this jurisdiction, and in rendering its decision in cases not covered by the letter
of the written law, this court relies upon the theories and precedents of Anglo- American cases,
subject to the limited exception of those instances where the remnants of the Spanish written law
present well-defined civil law theories and of the few cases where such precedents are
inconsistent with local customs and institutions and The jurisprudence of this jurisdiction is
based upon the English Common Law in its present day form of Anglo-American Common Law
to an almost exclusive extent.
79 See OLIVER WENDELL HOLMES, THE COMMON LAW 1 (1881). (The life of the law
has not been logic; it has been experience. The felt necessities of the time, the prevalent moral
and political theories, intuitions of public policy, avowed or unconscious, even the prejudices
which judges share with their fellow-men, have had a good deal more to do than the syllogism in
determining the rules by which men should be governed).
80 For example, in common law crimes, see OLIVER WENDELL HOLMES, THE COMMON
LAW 135 (1881) (Paulo J.S. Pereira & Diego M. Beltran eds., 2011) (While the facts are
77

16

civil law tradition, upon colonial Americas imposition, survived to a significant

degree to enact a Teubnerian legal irritation,81
At first the prejudice against everything Spanish suggested the complete
uprooting of th[e] judicial system. But a close acquaintance disclosed
that it was not wholly badthat in fact it contained very much that was
good, and that its greatest defect lay not so much in the substance of
the laws themselves as in the mode of, and provisions for, their
execution. In other words, the weak part of Spanish jurisprudence is,
and always has been, its remedial lawthe department which deals with
remedies and procedure in obtaining them, rather than the substantive
law, which deals with rights in the abstract.82

Due to the survival of civil law institutions and this heterogeneity of

American legal transplantation in the Filipino legal milieu, the juristic landscape
displays a spectrum in interpretation. In the aspect of private law, governed for
example by the Civil Code and Family Code, the Spanish precedents direct and
guide in the exposition of the law. In respect to public law, the civil tradition is
more limited and American jurisprudence is more intrinsic. The distinction is
made more cogent by judicial decisions, which are manifestly inclined to follow
the American process, which after all had redefined the administration of justice
from the flawed Spanish system.
In the judicial process, expectedly, civil law standards are remanded to the
backwaters of Philippine judicial instruments. This civil law tradition finds
expression in Philippine case-law when the Supreme Court itself directs the court
to be cautious in overruling legislative judgments; holding that it is the sworn
duty of judges: to apply the law without fear or favor, to follow its mandate not
tamper with it. The courts cannot adopt a policy different from that of the law,
since what the law grants, the courts cannot take away; and for so long as the
laws do not violate any constitutional provisions, the courts can merely interpret
and apply them regardless of whether or not they are wise or salutary, and if such
laws turn out to be unwise or detrimental, remedy should be sought with the
legislature.83 But predictably, the Americanized judicial system can revert to the
common law tradition when civil law constraints prove too unmanageable, or
when the civil tradition opposes common laws teleological orientation towards
equity.
This merging and interaction of the two legal systems with their different
emphases on certainty and the different roles of judges84 have resulted into an
incomplete semblance of common law in the Philippines,

uncertain, as they are still only motives for decision upon the law,grounds for legislation, so to
speak,the judges may ascertain them in any way which satisfies their conscience).
81 Gunther Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up
in New Divergencies, 61 M. L. REV. 11 (1998). See Melquiades J. Gamboa, The Meeting of the Roman
Law and the Common Law in the Philippines, 49 PHIL. L. J. 304 (1974).
82 Charles S. Lobingier, Blending Legal Systems in the Philippines, 21 L. Q. REV. 401, 401-402
(1905) ([T]he Siete Partidas form to-day a sort of a common law for the Philippines. This is a
model of concise, comprehensive, and systematic codification).
83 Villanueva, supra note 69, at 54-55.
84 See MERRYMAN, supra note 52, at 55.

17

[A]lthough many common law provisions and principles are being

literally grafted on the law tree of the Philippines, the case law method
of adjudication, which is a condition sine qua non of the common law
system, is not adopted. The doctrine of stare decisis does not obtain here
in the same sense that it obtains in common law countries. Precedent is
only evidence of the law and not the law itself. Consequently, the
Philippine legal system is not likely to be a common law system in the
strict sense.85

But wherein common law judicial legislation has been weakened in

Philippine jurisprudence, the doctrines of stare decisis remain a sacred and strong
juristic institution that the Court adheres to, at least, purportedly and admittingly.
And since the form of Filipino stare decisis merely approaches that of strictly
common law nations, the application of the doctrine fluctuates towards
purposive support. In the same manner, the civil law tradition with its emphasis
on intent becomes tools towards interpretive ends or personal prejudging.
V. DIVERGENCE IN INTERPRETIVE ENDS
Written law translates both concrete and abstract conceptions and
principles of positive law into the limitations of words, phrases, and sentences.
Themselves results of the optimization of legal order, constitutions, statutes, and
codes exist to legitimize the social contract among the states, societies, and
persons. The language in law, in this respect, forms the medium by which a language
of law is manifested and recognized.86
With the constraints of language succinctly concluded by Wittgenstein87,
the need to ascertain meaning and discover the definitive language (or spirit) of
the law arises. Towards this determination, various tools and processes are
utilized. In conventional republicanism and democracy wherein the separation of
powers defines law making to the legislature, the function of interpretation
generally channels through the judiciary. Rules of statutory construction, or the
interpretation of laws, therefore are used in both civil law and common law
traditions as potent tool of the judge in different ends.
The exposition of contemporary civilian systems (by which Philippine
civil law is based from), apart from the American system, reveals mechanisms
that effectuate judicial discretion and juristic indeterminacy.

85

MELQUIADES GAMBOA, AN INTRODUCTION TO PHILIPPINE LAW 77 (7d., 1969).

See FULLER, supra note 17 and accompanying text.
87 LUDWIG WITTGENSTEIN, TRACTACUS LOGICO-PHILOSOPHICUS 7 (1921) (Wovon
man nicht sprechen kann, darber muss man schweigen). [Whereof one cannot speak, thereof one must
leave over to silence.]
86

18

A. Judicial Limbo in French and Spanish Civil Law

In contemporary French law, the primacy of codes and statutes in the
legal system has resulted into the codification of rules of interpretation.88 Judges,
likewise, are compelled by law to settle controversies despite the inherent
difficulties in applying the law to cases at hand. In France, a judge has both the
power and the obligation to interpret statutes in the basis of Article 4 of the Civil
Code, which states that a judge who refuses to come to a judgment, under the
pretext of the silence, obscurity, or insufficiency of the law, may be prosecuted
on the basis of a denial of justice.89
Despite this positive duty, due to the early development of the French
civil tradition, French codes contain no provisions on the methods of
interpretation,90
It has therefore been up to judges to find ways to interpret statutes, and
to scholarly commentators to expound on the various methods. The
major methods of interpretation under different classifications are
exegetic and teleological The exegetic method makes use of
legislative history. The teleological methodlooks at the social
objective of the statute.91

The exegetic method emphasizes respect for the will of the legislator,
wherein obscurity of the law must be resolved through the examination of the
legislative history or travaux prparatoire: If the legislative history is confused, or
the law is too old, the judge will look at other considerations and use . . .
teleological interpretation method. This approach is mostly used by the highest
courts, the Cour de cassation and the Conseil dEtat.
Descending from the French Code of Napoleon, the Spanish civil
tradition, on the other hand, provides for the methods of interpretation by which
judges must adhere to. In modern Spain, the guideline for statutory construction
is provided by the 1889 Spanish Civil Code, as amended, which must be applied
consistently with the principles of the Spanish Constitution; the international law
which has been expressly accepted by Spain; and the decisions by the two highest
courts (the Tribunal Supremo and the Tribunal Constitucional).92
In addition, Spanish courts may also invoke legal maxims or aphorisms in
order to support their decisions.93 Statutory construction is thus codified in the
Spanish Civil Code. Article 3(1) of the Code provides that

88

See H. MAZEAUD, J. MAZEAUD & FRANOIS CHABAS, LEONS DE DROIT CIVIL (2d
ed. 2000), cited in Claire M. Germain, Approaches to Statutory Interpretation and Legislative History in
France, 13 DUKE J. COMP. & INTL L. 195, 196 (2003).
89 Germain, supra, note 88 at 196, citing Civil Code (France), art. 4, reprinted in GEORGE A.
BERMANN ET AL., FRENCH LAW 4-10 (1998).
90 Id. (More modern civil-law codes contain such provision.)
91 Id., 196-197.
92 Victor M. Gonzalez Ruiz, Unravelling the language of the law in Spanish courts, 18 IBRICA
93, 95 (2009).
93 Id., at 94.

19

Las normas se interpretarn segn el sentido propio de sus palabras, en relacin con
el contexto, los antecedentes histricos y legislativos, y la realidad social del tiempo en
que han de ser aplicadas, atendiendo fundamentalmente al espritu y finalidad de
aquellas.94

The subsequent section offers other interpretive principles,

Artculo 4(1). Proceder la aplicacin analgica de las normas cuando stas no
contemplen un supuesto especfico, pero regulen otro semejante entre los que se aprecie
identidad de razn.95

The civil tradition, however, does not define statutory construction in

clear-cut terms. Article 3(1) et seq. are rather vague statements and reinforce
juristic indeterminacy through the multiple modes of interpretation allowed:96 It
could be said that the determining factor in court decisions is the will of the
judge, who, depending on the result he wishes to arrive at, employs the method
of construction which better leads him to it.97
The same indeterminacy is observed in Spanish constitutional
jurisprudence, interpreting the 1978 Spanish Constitution. The attitudinal model
is seen to be prominent in the decisions, affected by the advancement of
ideological goals. Party politics matter for how constitutional judges vote in
constitutional review cases, although this influence presents itself in different and
complex ways.98
In constitutional jurisprudence, civil law tradition may, however, create
limitations to the discretion of the Court in constitutional cases. More
prominently,
[There are] limitations as to how much ideological goals can be
advanced by individual constitutional judges in Spain. Judges have a
degree of dissent aversion, which can be justified for different reasons,
including the additional work that dissenting requires, the difficulties of
collegial relationships, or their detrimental effects on the workplace.
One immediate restriction is the nature of the case; the extent to which
there is no discretion according to the Constitution. The second
constraint is the civil law background that traditionally favors
consensus and dislikes dissent in the bench. There is inevitably some

94 Civil Code (Spain), art. 3(1), reprinted in CIVIL CODE (Ministrio de Justicia trans. 2009)
(Rules shall be construed according to the proper meaning of their wording and in connection
with the context, with their historical and legislative background and with the social reality of the
time in which they are to be applied, mainly attending to their spirit and purpose).
95 Id., art. 4(1) (Where the relevant rules fail to contemplate a specific case, but do
regulate another similar one in which the same ratio is perceived, the latter rule shall be applied by
analogy).
96 Gonzales Ruiz, supra note 92, at 96. ([S]ubsection [sic] 3(1) does not express a
straightforward rule of construction, but refers to several (potentially contradictory) elements
which must be taken into account at interpreting the law. These elements are the following:
grammatical . . . logical . . . systematic . . . historical . . . social . . . and purposive).
97 Id., 102, citing M. SEGURA ORTEGA, SOBRE LA INTERPRETACIN DEL DERECHO
(2003).
98 See Nuno Garoupa, Fernando Gomez-Pomar & Veronica Grembi, Judging under
Political Pressure: An Empirical Analysis of Constitutional Review Voting in the Spanish Constitutional Court,
29 J. L., ECON. & ORG. (2013).

20

pressure for consensus emerging from the ways of judicial demeanor in

the civil law tradition; dissent hinders perceived legitimacy. The more
complex limitation is derived from the interaction with other courts.
Excessive political or ideological division in the Court reduces the
prestige of the Constitutional Court vis--vis other courts, and therefore
diminishes the influence of constitutional judges over the judicial ranks
and, ultimately, the legal system overall.99

B. Legal Realism in Civil Law Construction

Civil law traditions have seen a shift in the role of the judge in statutory
construction. The apparent trend in judicial power characterizes the acceptance
of a teleological interpretation over the strictness or in a broader sense, legal
realism over legal formalism. Phrased differently, why worry about consulting
legislative history to track the will of a legislator who is gone?
Faced with an obscurity or gap in the law, a judge must become a
legislator and be concerned about social needs, the ideals of the
moment, comparative law, plus history, which will show institutional
evolution. The movement [of Franois Gny on this method of
interpretation] spread to other countries, such as Germany (Freies Recht).
In Switzerland, it inspired the language in article 1 of the Swiss Civil
Code of 1907, which expressly gives large powers to the judge when
neither the law or custom resolve the questions raised in the litigation.
The judge should decide in accordance with the rule he would establish as a
legislator.100

The statutory construction wherein legislative history is central also

exposes jurisprudence to a significant degree of indeterminacy. The interpretation
of records over the deliberations of the legislators over a statute may be subject
to arbitrariness. In the American Supreme Court, for example, legislative history
as a tool for interpretation, while uncontroversial and common in the 1980s, has
seen an interpretive revolution through Justice Antonin Scalia and his textualist
assertions.
The legislative history of a law, warned Scalia and his allies, was a devils
playground: it contained a huge number of assertions about the acts meaning,
and those assertions were so contradictory and so easily inserted by manipulative
politicians or lobbyists, that willful judges could always find support for whatever
personal preferences they wish to impose.101 These vulnerabilities of legislative

99

Id. (Citations omitted).

Germain, supra note 88, at 198-199. (Emphasis supplied; citations omitted).
101 Nicholas R. Parrillo, Leviathan and Interpretative Revolution: The Administrative State, the
Judiciary, and the Rise of Legislative History, 1800-1950, 123 YALE L. J. 266, 269 (2013). Compare, David
S. Law & David Zaring, Law versus Ideology: The Supreme Court and the Use of Legislative History, 51
WILLIAM & MARY LAW REVIEW 1653, 1659 (2010) (The decline is more likely attributable to the
overall rightward shift in the composition of the Court, for which no single Justice can be
assigned either credit or blame. Liberal Justices who were inherently predisposed to use legislative
history have, on the whole, been replaced by conservative Justices who are not. Controlling for
such factors as the ideology of each Justice, we found no evidence that Justice Scalia has
influenced the legislative history usage of other members of the Court).
100

21

history have reverted statutory construction to the rhetoric of judicial legislation.

Starting as an interpreter, the judge will become a legislator.102
The judge as legislator rhetoric rings familiar and the concept refers more
commonly to the common law system, by which civil law tradition is oft
dichotomized:103 A body of customary rules, such as the common law, is
brought within the definition by the maxim that what the sovereign permits he
commands. The judge who administers the common law is regarded as the
sovereigns agent, with a delegated power of oblique legislation. He has authority
to legislate as properly judging, and thus to convert into law the custom, which
until so recognized is, in the disrespectful language of a critic of Austin, relegated
to the limbo of positive morality,104
Judicial legislation is a necessary element in the development of the
common law. This is a consequence, in the first place, of our judicial
machinery and our mode of treating previous decisions; and secondly,
and especially, of the shape in which facts present themselves. In the
reasoning process by which the various combinations of facts are
analyzed and the law applied to them, there is necessarily growth and
development, and this occurs also to some extent in statute law.105

C. Precedents as Statutory Construction

The legal landscape in American common law aggravates the
indeterminacy of statutory construction. While theoretically the Congress may
legislate interpretive methodology such as that in civil law jurisdictions, courts
and scholars continue to resist the notion that legislatures can control these
interpretive rules.106
Statutory construction, therefore, allows for significant doctrinal and
theoretical interventions in the part of the Judiciary, transforming statutory
construction as some kind of judge-made law.107
The judge-made law on canons of construction have started since at least
1584, when Lord Coke laid out rules for the sure and true interpretation of
all statutes in general in Heydons Case. The canons were echoed by Blackstone

102 Germain, supra note 88, at 199. See also FRANOIS GNY, 1 MTHODE
DINTERPRTATION ET SOURCES DU DROIT PRIV FRANAISE (2d ed. 1919); JEAN CARBONNIER,
DROIT CIVIL 177 (12th ed. 1979). See also Victoria F. Nourse & Jane S. Schacter, The Politics of
Legislative Drafting: A Congressional Case Study, 77 N. Y. U. L. REV. 575, 578 (2002) ([T]here may be

important institutional differences between the judicial and legislative branches when it comes to
the values that shape the drafting processdifferences we characterize in terms of interpretive
versus constitutive virtues).
103 See, e.g., MERRYMAN, supra note 52, at 48-55.
104 Ezra R. Thayer, Judicial Legislation: Its Legitimate Function in the Development of the Common
Law, 5 HARV. L. REV. 172, 173 (1891).
105 Id., 199.
106 Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of
Statutes, 54 WM. & MARY L. REV. 753, 757 (2013).
107 Id. (By embracing legislative history circa 1940, judges were taking up a source of
which the bureaucracy was a privileged producer and usera development integral to judges
larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a
statist tool of interpretation).

22

and now enjoy ascendancy among judges and legal scholars. Insofar as it can be
quantified, one study found that reliance on the canons in the Supreme Courts
majority opinions has experienced a dramatic uptick in the past decade, from
below 30% to above 40%.108
They form a body of interpretive common law, strengthened by
precedents, that legitimizes sources and methods of legal reasoning, with the
legislative intent in mind.109 While legislative history plays a prominent function in
the quest of discovery for the Congress (or the Framers, in terms of the
Constitution), canon and the precedential value figure as essentially where
purposive interpretation is sought and statist exceptionalism, stagnancy, and
exclusionism are avoided.110
The observance of the doctrine of precedent in Anglo-American
jurisprudence should, in theory, guarantee the uniformity of judicial decisions,
which civil law statutory construction fails to pragmatically or effectively
address.111 As to judicial discretion, common law judges traditionally have
inherent equitable powers: they can mold the result in the case to the
requirements of the facts, bend the rule where necessary to achieve substantial
justice, and interpret and reinterpret in order to make the law respond to social
change. These powers are not seen as threats to certainty in law; indeed certainty
is to be achieved through the doctrine of stare decisis, itself a judicial doctrine. The
difficulties of rationalizing the demand for certainty and the justice of the
individual case thus become problems for solution by the judges themselves.112
With the engraftment of American law, statutory and constitutional
interpretation is dominated by common law principles, which along the
framework of equity becomes inherently discretionary,
The characteristic method of the common law is, as we have seen, to
work along from case to case, dealing with each one as it arises, and
disclaiming any intention of framing a general rule. However it may be
in other cases, the court will say, on these facts the law is clear. It is
common to see extremes at which the law is clear, while the line at
which they divide remains obscure until determined by the gradual
convergence of the cases. By the slow course of decision just so much
law is developed as society requires, and no more; and later generations
are left free to fill in the gaps in accordance with their own notions, as
little hampered as may be by those of an earlier age. In the process of
reconciling and adjusting the authorities, and extracting from them the
principle for which they stand, there is a constant tendency to mould it
into a form which corresponds with the later conceptions of justice and
expediency, and which, though consistent with the actual result of the
earlier cases, may be quite foreign to the ideas of those who decided
them. The growth of the law, as it is sometimes said, is rational rather

108 Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 GEORGETOWN . J.
344-345 (2010). (Citations omitted).
109 Id., 346; Kim & Costello, supra note 35 and accompanying text.
110 See Parrillo, supra note 101.
111 Gonzales Ruiz, supra note 92, at 105 (For the moment, to rely on the proper
meaning of words as a primary method of construction of legal texts constitutes an approach
to statutory interpretation which seems neither pragmatic nor effective).
112 MERRYMAN, supra note 44, at 51.

23

than logical. This so-called flexibility of the common law is most

important, and goes far to explain the success with which it has adapted
itself to changing conditions of society.113

The common law judiciary that preceded the federalist conception of

American government has resulted to confusion as to the role of the judge and
the legislature by which the extant separations of power doctrine in American
constitutional tradition demands:114 Even when a reform seems most plainly
desirable, the conditions under which the judge works often make it preferable
that the change should come from the legislature. One step by the court unless
followed up can cause nothing but confusion; and the fact that the actual
decision alone is binding makes it often doubtful how far a later court will
continue the course upon which its predecessor has entered. Whether such a
course should be begun depends on all the circumstances of the case. The only
sure guides are common sense, and a knowledge of the law which is founded
upon a knowledge of its history.115
The purpose of the common law tradition towards social desirability, for
example, has created a grand irony of stare decisis116 wherein precedent tends to
be a principle of policy as opposed to an inexorable command.117 The
modern doctrine of stare decisis is essentially indeterminate. The various factors
that drive the doctrine are largely devoid of independent meaning or predictive
force. Fairly or not, this weakness exposes the Court to criticism for appearing
results-oriented in its application of stare decisis.118
The dilemma is further magnified by the foundational system of the
doctrine of precedent,
It is not just the legislative and executive branches that rely on Supreme
Court precedent. It is also the judiciary, including the Supreme Court
itself. This reliance leads to the creation of doctrinal structures in which
one precedent builds on another that builds on another. If a
foundational precedentone on which many others dependwere to
be overruled, an entire structure could waver or topple, upsetting
settled expectations and creating widespread uncertainty about the state
of the law.119

113

Thayer, supra note 104, at 190.

Anthony DAmato, Judicial Legislation, 1 CARDOZO L. REV. 63, 63 (1979) (It is unjust
in the broadest view of our legal system for judges to legislate, even if they confine their
legislation to the narrowest limits in the closest of cases). For the confusion on the term judicial
legislation, see James L. Magrish, Judicial Legislation, by Fred V. Cahill, 28 IND. L. J. 282, 283 (1953)
(Let us examine the various meanings of judicial legislation. The words may imply a wrongful
exercise of the courts of a power constitutionally assigned only to the legislature, thus charging a
usurpation by the judiciary. The charge of usurpation assumes that the judge can ascertain when
his action is within the limits of the proper exercise of the judicial function and when his action
would infringe on the legislative function. Judicial legislation also may be applied to a courts
activity in praise of what the court has done and said).
115 Thayer, supra note 104, at 201.
116 Randy J. Kozel, Stare Decisis as Judicial Doctrine, 67 WASH. & LEE L. REV. 411, 411
(2010).
117 Id., at 414, citing Helving v. Hallock, 309 U.S. 106, 119 (1994).
118 Id., 414, 416-25.
119 Id., 459.
114

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VI. CONCLUSION
The historical context of the Philippine legal system reveals the
interaction of the two great legal systems of the world, with different modes of
inquiry into the nature of constitutional text and meaning.
With the arguably polar epistemic characters of the civil law and common
law, the Philippine legal chimera or hybrid that has resulted from this postcolonial synthesis has incorporated a wider discretion than what the two systems
individually and normatively prescribes. The Philippine Supreme Court,
consequently, dispenses its constitutional mandates and duties armed as a
Superjudiciary,120 especially in light of the 1987 Philippine Constitution.121
But as the Court itself has echoed, With great power comes great
responsibility.122 Whether the Court, in exercise of its awesome powers shall
maintain the clarity, certitude, uniformity, predictability, and reliability of the
Charter remains to be seen.123 The hovering and pernicious presence of
indeterminacy in the law of the Justices threatens to trump the legitimacy of the
very constitutional order.124
As the Court make[s] the hammer fall, and heavily where the acts of
[government] departments, or of any public official betray the peoples will in the
Constitution,125 then and there shall the dread or confidence of the Filipino
people be resolved. The language of the Law, for now, anticipates the articulation
of its lawness beyond proclivities or dictum.126

120

See generally PACIFICO A. AGABIN, MESTIZO: THE STORY OF THE PHILIPPINE LEGAL
SYSTEM (2011).
121 The present Philippine Constitution has vested upon the Supreme Court a more
expansive power of certiorari, see CONST., art. VIII, 1 (The judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law. Judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government). See Francisco v. House of Representatives, G.R. No.
160261, 460 Phil. 830, Nov. 10, 2003; Gutierrez v. House of Representatives Committee on
Justice, G.R. No. 193459, Feb. 15, 2011; Belgica v. Ochoa, G.R. No. 208566, Nov. 19, 2013. See
also, Nadate, supra note 71 (forwarding redemptive constitutionalism as a theory of Philippine
constitutional law).
122 Province of Rizal v. Executive Secretary, G.R. No. 129546, Dec. 13, 2005.
123 See Antonin Scalia, The Rule of Law as a Law of Rules, 56 UNIVERSITY OF CHICAGO
LAW REVIEW 1175, 1179 (1989) (Even in simpler times uncertainty has been regarded as
incompatible with the Rule of Law. Rudimentary justice requires that those subject to the law
must have the means of knowing what it prescribes. Predictability, or as Llewellyn put it,
reckonability,is a needful characteristic of any law worthy of the name.).
124 See League of Cities of the Philippines v. Commission on Elections, supra note 17
(Sereno, J., dissenting) ([T]he pendulum swing of the Courts decisions has yielded unpredictability
in the judicial decision-making process and has spawned untold consequences upon the publics
confidence in the enduring stability of the rule of law in our jurisdiction).
125 Association of Small Landowners in the Philippines, Inc., v. Secretary of Agrarian
Reform, G.R. No. 78742, 175 SCRA 343, 365, July 14, 1989; Osmea v. Commission on
Elections, G.R. No. 100318, July 30, 1991.
126 See HART, supra note 11, at 1-17; James G. March, Sociological Jurisprudence Revisited, A
Review (More or Less) of Max Gluckman, 8 STAN. L. REV. 499, 511 (1956); JOSEPH RAZ, PRACTICAL
REASON AND NORMS 170 (2d ed. 1990) (The problem of the normativity of law is the problem
of explaining the use of normative language in describing the law or legal situations).

25