Pee CHAPTERT JURISPRUDENCE, JURAL AND NONJURAL LAWS Nature of Junsprudence A. Proomium 1B. The Problem Stated C. The Diflerent Schools of Surispridence Law in General A Roles of Action B. Orcers of Sentence ©. Classineation 1. Fecal Point of Nendeviation sural Law A Particular Sense B. Collective Sense ©. Abstract Sense 1a) Precepts (2) ideals onjural Law A. Divine Law 10) General Sense (2) Strict Sense : B. Natural Law (0) Historical Background (2) Concept and Precepts {8} Place and Function in the Legal Order (al Justifiestory Use (b) Oppositive Use (Regulatory Use (6) Interpretative Use © Moral Law (2) Moral Order (2) Moral Norms2 7 TT nasa Prcosoriy Ivwooucrton 3 ‘ plines (4) Moral and Social Norms D. Physical Law (0) Nature and attributes (2) Discovered Norms {) Distinguished from Jural Law {4) Distinguished form Divine Law 1. NATURE OF JURISPRUDENCE A. Pronuun “Jurlsprudence which should not be confused with case lax) oF legal theory fas the former is sometimes: called) deals with the generst philosophy of aw, that is tosay the nature and elements ofthe aw. Thequestion ofthe nature ofthe lars concerned with ts derivation, evelopment and thrust. The question ofthe elements ‘ofthe las deals with legal concepts which are material to:the legal ordering of society, namely. state, cover ‘eigaty, legal relations, legal persons, legal facts, and legal things. Jurispradence, then, 18 concemed with the theoretical and tecbnical aspects oflaw as a discl- pliné.! These are precisely the areas where scholars. haje dilfered, giving rise to various schools of thought fon the matter ‘Whilejurispradence orlega)theoryhas been rather unpopular with some members of the bench and bar ‘and sometimes undervalued by the practical minded, ‘teannot be overemphasized that the legal order, that {stosay law and government, depends toagreat extent "ofaning, WL. eating he Lau 24 Valparaiso Universtiy sw Rene 18 omnes... Th ath ef Las, 10 Harvard aw Revie. aon ‘Tegal phiTbSophy Tar T= Waprovement. cannot be galsald elther that lega) concept are developed by Jegal theories. Jurisprudence also furnishes the deep ening perspective fo the study of law. Its important, then, that students of law should fret have a working background and overview ofthe thinking of the diffe ent schools of jurisprudence on the nature oflaw. With this advantage one can. with some amount of self confidence, begin to express or write in the ‘dior, ‘ction and thrust of each school of jurisprudence ‘The aversion toward jurisprudenceisan indication, of a constricted approach to the study af law. Justice Olver Wendell Holmes, Jr. ofthe Supreme Courtof the United States. an influential juniapmadent in his own Fight, strongly advised the stdy of the gfeat phileso- phers and jurisprudents in order “to see how centuries after their passing their ideas have become a practical foree controling the conduct of human beings and how ‘much snore this World is governed even today by them," As an introductoty work, this volume wil Be con= fined to the study of the nature of law through the approaches pursued by the main schools of jurispry dence. As such, twill not dwellen the techniques af the Jaw except when absolutely related to the question of, ‘the nature of law. Neither will itelaborste on the study. ‘of law as a linguistic problem, e.g, inquiry imta the appropriate choice of words to prevent ambiguity of ‘expression, meaning of discourse independent of what the legislators and judges intend to convey, investiga- tion of the meaning carried by legal terms and legal texts. There 1s, of eourse, no question as to the SHtaes, OW. ope 487.4784 ‘one Prnesorine ‘nfiience oflanguage on law since there isa atrong HAE betiveen law as. discipline and language as.a means of ccontgmunication. fier all, lw le # type of language * But the elements of law and the language of law il nnotbe considered here so as not ta confse the primary [purpose af this velume, B, Tir Peosten Stare Ta jurisprudence, we do net spéak of"a law” but of “thelnw" or simply "law". The question lsnotwhatalaw ‘snor what the term law signifies in the collective sense, ‘The answers to these questions wil nat yield the trae picture of the legal order ‘The probes that has continue to preoceupy philosophers and jorapridents aie x stl the sane feston shih Socrates asked his stadents a fond. Jong time ago names, "What isthenatare ofthe lve Much later Cicero raises the companion question, ‘namely, Why iajrepragence wort staying There {sno question thatthe more fandamental terms the rater the eiicultyofanalyingt. And sot iswith the {erm*lay”. There sre varie theories about the cegin, evelopment and Gust ofthe law: eis obvious that ‘would emisieadingtolookt hepresii froma single Dolntofvew ortocopsicerss awholethedllerentviews Expressed on the matte As someone has aptly said, “ay oft eof ngage evans by Lewis Wiigensten.(1680-108)) In hie Teaco Lee Passe generat verbal expences edhe te Or vor a a mets to cere reaty Er Ton respected [rsprocesunel, Coreen ic iangrageere se Ueno 6i tam Guar Review, and aiay ater in hs Word Gonacounes aan te cole argue 98 Ce Western Aegan Re, Svcs oe of ht ela te petals seer limonvenoy + 5 "Were WOU be io prudence Jas pICRINZOUEAT a single view ofthe nature ofthe lw without (aking ato consideration the development introduced by the sther Jariste schools." Tobe in any way adequate, there io heed to orchestrate — ifst may ealled thatthe sounds ofthe diferent schools ofjurisprudence concerning the ature of the law, Only on the basis of a systematic understanding ofthe essence ofthe different theare, rationalizing differences whenever possible. emphasta, ‘ng harmony, making allowances for the areas where ‘hey overlap, and balancing the iéeas that have led to jendue emphasis in one direction or anotier, Taay the hnaturé of the law be fully appreciated, After al Jurisprudence builds upon the achievements of the ppast and careful examination ofhistory is essential to fis development. ‘The impatient may see nothing but confusion in the views held and expressed by the different schools of Jurisprudence on the question ef the nature of the law. Others consider hese perspectivesasrelated aspects of Just one great concept — Law, And these Views should ‘be considered in this light forthe law (to borrow a very pleasing phrase) is indeed a many splendored thing. Like the facets ofa diainond, the different perspectives to the nature ofthe law combine together to ive ita fastinating briliance. ©. Pe Dre Sones or Jemsensoane ‘The varioys schools of juiisprudience see law in. ifferent ights, ‘They have their ovn points of observa. tion. Thus, based on dbiferences in Imagery and Svomsoe, Wil, Sone My Abas Posten, 68 Yate Law Journal, 212,136 . ecu, Paosooiy perspective, the philosophers and jurspridents wis have inquired into the problem of the origin, develop- ‘ment and thrust of the law may be separated into ‘various schools, as follows 3 {a}. The historical schoo! of jurisprudence which appraises the law in the context of the comman con- sclousness of @ group of people. The question this Juristte school seeks to:answer is: Where did the law ‘orp from and how did it evolve? jn(D)- The teleological schoo! offurisprudence which ‘hifks of the nature of the law in terms of the moral and rational nature of humankind, This jurstie school understandsthelawasstriclyconnectedwith — me- rally and naturality. The question emphasized by this Juristle school is: What is the teas ofthe law? (2) The positivist school of jurisprudence which considers the law as a conscious norm of the state bathed by its authority and force. For this Juristic ‘school the jaw is not inherently moral or natural. For this schootofrispradence the problemis: Whatis the distinctive structure and content ofthe law. ~" (@)The fsnetional schoo! of jurisprudence which views the nalure of the law in terms of the jursl ‘postulates, social interesté and national policies of the ‘People. The question which thie juris echool raises 4s: How doee the law work in weighing or adjusting the ‘competing individual and public interests? (2. Thereaistschoolof}usisprudence whieh takes the nature of the law on the Basis ef tie on-going ‘experiences and nter-experiences ofthe people, This Jurfste school asks the question: 3s he law veriable ‘nthe practical fe of the people? Isenooucnen 7 (0. The policy science school of jurisprudence ‘which tocks at the nature of the Jaw in relation to the degree of success of society mn the oreation, clarification, and realization of social values, The question this Jaristic school raisesis: Whats the basisand the imtis ‘of global. regional, and national legal orders in relation to social values? 2. LAW IN GENERAL Generally speaking, the term law" means any rale of action or order of sequence from which “any beings whatsoever either will nit, or cannot, ar ought not to deviates . A. Russ of Acnox ‘Arnule of action isany warrant, instruction, meus- lure, regulation, or decision governing any act, conduct, transaciton, orproceeding, eluding its consequences, A.conspfeucus example ig a trafic regulation promal. {gated inaccordance with 9 eity or municipal ordinance. ‘Another obvious illustration ia statute enacted by the legislature pursuant to its Jegslative powers in the eonsuitstion ‘There are two Important points that should be noted insofar as,rules of action are concerned. First, conductiis included in the definition. Thigis necessary, for in the Tegal order there are certain conduet, ©.9, forbearance, whieh means intentional refraining from, faction, that are-productive of distinct legal effects and consequences, in other words, forbearance 13 fully significant asa positive act. The other points thateven Sraniszon. 7. Jnemerstrorvas Lt. 1. Sesond American ston, Now Yor8 Leck Prosonny ‘UVOUBET FES oT CUGH Wave Wea ana 8 BEE HOTA ‘hey cannot be broke, in the sense that the word 1s ‘used in the vernacular, Even though males of action are repeatedly violaied ar remain unobserved they, never= theless, continue to apply with thelr senetione sm fall free and effect. Legally speaking, though, rules of action may be broken for they are always subject to repeal or amendment by the’ body constitutionally ‘authorized to do 60, or they may be declared null and vold when they are contrary to the constitution, B. Oncens oF Seaustce ‘On the other hand, an order of sequence is any system of arrangement or conseculiveness, or any ‘uniformity of a given group of phenomena. While this ‘category is mainly concerned with physieal nature, it ‘chhnot be gainsald thatan orderof sequenceis also law, ‘sich thet any deviation therefrom results im inconven Iebice. damage, or injury. The numerals. or integers “one 0) to “zer0" (0) constitute a goed example of ath ‘der of sequence. This system of numerical arrange- ‘ment or consecutivess of the positional yalue of num- Bezs cannot be unilaterally varied without harmful ‘ilisequences. An example of a untionmnity of physical sdbure is the pull or drag of gravty. Uniformities of ‘igture ean be harnessed to good use but no human belng can violate or change any order or norm of physical nature without harmfulresults. For one thing: they are immutable for they do not ale with time and place. And, for another thing, Uiey are absolute for they onot depend onthe human willbut operateinexorably admnitingofno exceptions. Thus, arule ofaction dies from an order of sequence in that the former is relative while the later is absolute. | Isrreauenon 8 ©. Cusivienton rom what has been stated, follows that there are four distinct classes of rules of action and orders of sequence, The.frst includes rules of action and orders of sequence which necessarily determine the activities, of human beings. Under the second group are com prised rules of action and orders of sequence which necessarily dcterminethemottonsandeven theinstincts of dumb creatures, The third class embraces rules of action and orders of sequence which necessarily determine the origin and growth of living organisms ‘The remarkable thing about this particular class of rules and orders ts that it governs the development of all orms off. from the simplest to the most complex. ‘And fourth isthe class where rules ofaction and orders fofsequence which necessarilydetermine themoverents ‘snd courses of inantmatebodiesormassesare included, D. Poca, Pair oF Noxwsvarton On the basis of the general conception ofthe term aw" itis noticeable that all ries of action and orders ofsequenceare)ussiveincharacter. Thismeans that concerned mustcease and desist front certain actiitiee or conduct which otherwise would result in some loss, damage, or injury. whether directly or indirectly. ‘There are three types, namely, the “will-not” cat- ‘egory of nondeviation, the “cannot” category of nondeviation, and the ‘ought-not” category of nondeviation, ‘These types of nondeviation are similar ia one obvious respect. But they are different from one an- other.ig "Loca Pinasoreey |The ‘ll ROU Category of nondeviation means that Uigielsa determination to abide with, or avoid vielation of, herutes ofactionand ordersofsequence, Therefore, force earries a connotation of future conformity, Drspective agreement, or eventual compliance, ‘The “cannot” category of nondeviation means that there is no ather way but to"obey or comply with the rules of action and orders of sequence, no matter how miich the desire to act otherwise may be. This 18 indicative ofa present oractual condition af conformity. A problem arises in connection with this category of nondeviation. As stated before, there are rules ofaclion and orders of sequence that have been continuously Violated. Thus, t Would appear inconsistent o eay that such rules and orders “cannot” be violated. To analyze ‘the question further in relation to the problem of the legal ordering af society, how can the institution of penitentiaries be explained ifpersans “cannot” deviate from rules of action and orders of sequence. Perhape. ‘then, the ‘cannot category ofnon-deviation shoule be dropped. Butitis obvious tat thie would befeolharcy. “The “cannot” category of nondeviation ia precisely the force which gives th legalorder the authority ty and ‘Punish lawbreakers. Its signficarice les in thefact that ‘bd’ matter how often or how long rules of action anc ‘fers of sequence are violated their efleacy are not difunished, fet alone changed. Such rules aiid orders ‘continue to exist with all their sanctions in force. It's, therefore, nota question of whether rules of action and ‘fiers of sequence “cannot” be violated or \gnored Dut ‘hat no such violation or disregard ls possible without 1 application of thelr sanctions, Iramopvenos u seems to be ai alternative (0 action. However, the apparent elleralive ie abandoned because #t 19 the better part of prudence to follow or comply with the rules of action and orders of sequence rather than refrain from follng or complying with them. 8. JURAL LAW ‘The term "Taw" in tts jural sense has three distinct senses, namely, the particular, the collective, and the abstract ‘The first and second uses of the term “law” com- prise what has been called"“lawyer's law although this, 's not a happy description. But in jurisprudence, they are better referred to as enacted law. ‘A. Parmicutan Sense ‘The jural term "law" Is used in the partioular sense. when is preceded by the indefinite article viz, alow. Inthis sense, theterm”Taw is used to refer to baias, ley, legge, tex, nomol, fo, and gezetz Ie willbe noted that tn the pirticular sense of the term “law" the reference i 10 @ statute, which is the written enactment of the legislative branch of the government composed of definite provisions for definite situations or states of facts to which certain incentives ‘and/or'sanetions have been. attached as means of enforcement. Incentives or sanctions may assume aif erent forms, A legal incenitve isa stimulus or motive developed through some extraneous influence operat- Ing on the individual members of society. Some exam ples of legal incentives are tax exemptions, tax deduc- ons, government loans, eondonation ofacenued taxes,saan Prnoson Sariction, on the olher hand, is e coercive intervention, fo én eventual punishment annexed fea violation of trulelor regulation. Some examples of legal sanctions: trefine. prisoner desire, less or suspension of ‘eptain legal privileges, assessment of damages, cost and interest. © tn the particular sense, the term “Taw' Js also ‘us to refer to any rule or opinion given by an agency, ofthe state or bya jurist, or by an authorized official of the povernment. In this sense, theterm “lav” refersalso tovany contract of agreement. These covenants are bing in character and so the contracting partes are sail tobesolemmly making law" for hemeclves, provided that such agreements are not contrany to law. social snferest or national poliey.” an example of @ rule or regulation formulated by ‘an agency of the state {s a rule of evil or criminal procedure promulgated by the Supreme Court pursu- ‘ant toss rule-making power. There is no doubt that ealaw, Another example is a regulation Issued by the Central Bank in accordance with its charter and @uly ‘published in the Official Gazette, » government publi ation, While they are not enactments of the legisla- tare, and go not statutes properly so-called, they are novertheless laws ‘An example of an opinion given by a'Jurist ts the “dangerous tendency" rule posited by Justiée George Taste 1906, Coa Cae of te Pipes. Shan Amore Word Atay n PAR Brolytes Associaton GR Ne Lcd: Peopin 9 Que Po Lay GR. No. 1-07D1: Untied ‘Stites aftna, 29 Pn. 18 Ibeooueion . 13 enunciated in the case of People v. Perez? where the Court explained that “there Is a seditious tendency in. the words used which could easily produce disaffection among the people with a disposition to remain loyal to ‘the government and obedient to the laws and tending to ‘lsturb the peace ofthe community arid thesafety ofthe government." For another example of an opinion given bya jurists the “clear and present danger" rule posited by Justice Oliver Wendell Holmes ofthe Supreme Court of the United States n Schenck v. Untied States, and ‘amplified in a series of brillant opinions in Gitow w, New York! Pierce v. United States, and Abrams v United States."9 tn the ease of Schenck v. United States, the defendants mailed circulars charging In very mpassioned langvage that conserption into the U.S. Army was bolh despotic and constitutionally suspect and urged the people to violate the statute. Justice Oliver Wendel Holmes, in his dissent, stated thet "the character of every act depends pon the circumstances in which tt 1s done. .., The question in every case is ‘whether the words are sed in uch eireumstances and are of such a nature as to create a clear and present anger that they wall bring about the substantive evils, that Congress has aright to prevent." Under this test, ‘words or acts are not punished because they are critical of the government since there are no ideas, whether Pap Rn 8, US'S, 9 so. 207-001-2870, 12852 Ug 239 40 9 20s, ¢ Lee Seo 13gap Us. oie, a0 sce 17 eta 1370. 39340 0 a8. In Abrams Usted Sate Justice Holmes (Boa may pain sec at aor tnd are Fabstanve evs natin United Ssescoetitonay may Seek {olpremnt laze supe lo erphaate the changes)a4 Looky Prnosorme trogen a8 YeIGiSUS-PONUCAL SIO gune-tat are immune (rom dispute and reassessment. They are ‘Punished because they have passed the farthest limits dafree expression for the words usee orate done incite ‘people to act unlawfully, which is the very thing that Congress i justifled in preventing.!® Thus, ifthe vords uuged oF the acts done’ are in such elreumstances and aref such a nature as to create a clear (not doubtful) and present (nol zemote) danger to society, ther, such utterances of acts are punishable. ~ \y But although the Holmesian elearsand-present: danger test has survived two world wars already, ithas ‘been the subject of diverse discussions and comments. ‘One view extends the test to.the entire range of el IMberties. The other view believes that the application of this “elcilons phrase” fas this view charscterizes i) ls pot applicable as a formal constitutional test, In-any age, it has-undergone further refinement, notably in ‘cages involving conspiratorial, clandestme and under- snd activities to overthrow the government by force ‘Sid violence, Learned Hand, uniting the decision of the ‘Gouartof Appeals ofthe United Statesin the subsequent ‘cage of United States 8. Dennis took into consideration Ue authority “and reach of the Holmestan clear-and- Prtcent-danger rele, especially on the question of ‘when the danger isto be deemed “present”. Hand Sifted that “in each case couris| mustask whether the gravity of the evil, discounted by ite lmprobabllity ‘Spree. Calforda, 214 U.S. 252,62. 190, 8 4, se: west Magna State Board of Education w Barete. 918 US. 624,685.00 ITB. 67 Ld 1623: Pernakap x Por, S28 U.S, $951, €55.C, 1020, 001.80. 1969; Crow v. Haro. 991 U.S. 387, BrS.cx i210, 01 Led 1548 “eyes 201,202 V75ee nies x Caljona, 274 US. 8874 ‘fast SUcH Invasion ofTree epecch aa ie necessary to ‘avoid the danger.~!® The United States Supreme Court, snore the Dennis case was later brought on appeal, speating thru Chief Justice Fred Vinson, held that the situation with which... Holmes wel concerned [oorel Iitde relation to any substantial threat to the safety of the community. (Holmes) was not confronted with any. situation comparable to the Instant one—the develop” ent of an apparatus designed and dedicated to the ‘overthrow of the government in the context of crisis, after crisis.” The Supreme Court then adapted the endian statement verbatim’ saying, ‘more we cannot expect from words.2° ‘Since the Dennis case, many’ so-called’ second string Commmunistshave been presecuted foradvocating revolution while the Korean, War was gomg on, con straining the courts to the conclusion that the danger fof utmost gravity and likelthood of the danger or evil Jusitied the invasion of the freedom of expression for ‘he purpose of avoiding the danger or evil Forstiltanother example ofan opinion of jurist Js the “no immediate decision” rule in administrative Jaw posited by Justice Antonlo Villareal of | the Supreme Court of the Philippines in the case of avellane o.La Raz ice & Cold Storage Co., Ine There Stwas held that the various motions for postponement amounting toa systematic method of blocking ordelay- Byes r2a 212, Dennis»: Used Stas, $41 US. 474.71'S.Ch, 857, 88 ea. p97 Bi pnced sites Lge, 228 F.24 81; Wellman» Uren Sig 227 F477 Yatens Une Snes 298 F201,16 ,! Lec Paeasoo Irroouenon 7 sg course ofthe hearinygat=nrappt for & cerificate of public convenience wall justify the grail of a provisional permit to operate the public [Eerige applied for, Tae "no immediate deoision™Fule has been applied in subsequent eases, “ n' example of an opinion of 2 jurispradent is a commentary on a particular branch ofl. The suther- ‘ty of an opinion or commentary 1s based on the schdlarship of the commentator. It ts, of course, presumed that courts take inte consideration only the pinionsand commentaries ofhighly qualified persons. ‘An example ofan opinion of an authorized official ‘tte government isa ruling or opinion ofthe Secretary fofvfustlce, As the chief legal officer and legal adviser of the government his opinions are generally followed, ‘especially the exeoutive and administrative branches of he government. . 1 2, Courenve Sense “The word "aw" ts employed ae eoletve or agente term when Het othe rosso” Bae of seeide or poriclar lows Tating to cos subject ‘lle. or when refers tothe lave cbianingin a gven Sofleb. As an example of the ne ofthe word aw rng to he totally of spite Ins rating to. one Eipjetinater ls Cut Law, or Commercial La, oF Raed a, or Crrincl Lau dean vamp of te Tov he (erm law th reference to partielle frm a determinate sures org i Lao of the Pipeties, Pian Taneportaton Company In. w ta, 0. Na. Le ‘5182, abiana nangportation Conparna Oosripa #8 Phil 612, Veqearin n Congeos ee Mant a Storage ine, Cafe No. L31313, “Tie classification of ehacted law in a specific and logical manner Is based on its nature and purpose, taking lnto consideration the character of the jural oF legal relations affected, that ie te say whether such relations are public or private in nature. Therefore there are three divisions: I) Igws defining rights and ‘obligations, 2) laws defining remedies and procedure and 8) laws defining rights and obligations in extra ordinary times, Bach ofthese divisions mayaffect either public or private relations, that is to say publie when the egal rules regulate therelations ofthe state withthe individual members of society and vice-versa, and private when the legal rules affect the relations of Individuals with ene anothen This means that rights and obligations are worthless without the concomitant rules and regulations to protector enforce them. And, ‘of course, there would be no reagon forthe existence of ‘the latter without the former. ‘The first division is righty called substantive aw. Here there are fvo kinds, the substantive private lav and the substantive public law. Under the former are four types: I} the law of persons and family relations, which defines the rights and obligations of persons living io a politically organized society regarding their ‘personal and family relationships, 2) the law ef prop: erty, defining the rights and obligations of persons living in a, pollcally organized soctety in relation to property and property rights, including classes of legal tings and proprietary concessions, 3) the law of obli- gations and contracts, which defines the nature and Source of claim- ‘Their importance ies in the fact that they may become ‘the basis of rules. concepts, and standards. ‘Concepts are general eategories into which specific ceases and things may be classified. When a particular state of facts or particular things are classified under ‘the appropriate concept, then, theralee, principles and standards of that concept become applicable.” Examples are the legal concepts of possession, agency, contract, Intention, consideration, negligence, etc. This element of the law is important because It sets the materials of the law in proper order and symmetry, reducing the mass of rules into manageable size Standards are models or criteria ta test or measure the validity of speciioacts for the purpoce of determin: Ing responsibility in the absence af specific rales, Standardsare more Nexible than either ruleser concepts, making them applicable relatively, that Je to Say according tothe etreumatances of exch and every ease Some examples are thestandarde offair eompettion, aigence (bonae pater familize-and goad falth {bona See ‘The standard of fair competition condemns acts characterized by force, intimidation, decelt, machina tion, or any other unjust, oppressive, or high-handed methods giving rise to a cause of action by the person, ‘who thereby suffers damage % This lenecessary due to a wide varlety of interests In property and business transactions. ‘The essence of fair competition as a Win, 26 27 pauno RTs Task oe Law, 46, raph ant Marshall College Pree, Lancaster Pear2 . Lecas Prnosorier “taniard ies then in giving free and equal opportunity to all im order to make a cholee or decision and other transactions andenterprises or any awful calling with- fal restraint or intervention from anyone other tan for feauses which the law accepts and recognizes. ‘The standard of diligence (bonae pater fomilae is designed to minimize or prevent wrongful ats or omis~ sions 2 Thus, instead of considering te state of ind fof the defendant, iLie a question of what a reasonable person would have dane wader the circumstances Negligence is then simply the absence of diligence. Iinpliettin thie standard ie the imaginary conductof the discreet pater famias of Roman lav.®® When there is ‘no provision of law as to the kind af diligence to be ‘Observed in the performance of obligations, like ex- ‘waordinary dligencein the transportation of goods ané passengers, then the diligence or care ofa good father of a-family is required. The eivil law concept of the Standard of"a good father ofa family” isthe counterpart: ofthe legal standard afthe ‘reasonable man" in Enghish common law. “ke standard of good faith [bona fdef has for its esdence the honest belle in the validiy of one’s right. Jgnarance of a superior clam and absence of intention tboverreach another" Indeed, its ont of the enteria in the observance of rightful relationships between BSpructe 28, Cha Coe of the Pitpines. “aopruce 1173, Cn Coce of te Muippnes. X provides th theater egligensef te abgar constant min of sk Utience uch fe required by ihe acute of te oblften ant ‘anssponde with Ie eeomatanesr the persons of etme tine plce. itcan w. Si $7 Po 808, 12 Beard, Berard 98 Ph 202, Iereobucnow 28 Taaividale and Tar the Sabiliy of oe. (2). rdeats ‘There are (our types of innate ftraditional) and received borrowed) ideals, namely, juristic ideals, eth cal deals, pelitical ideals. and economic ideals, By Juristictdea!s are meant rational theories which may reshape ar change the contents of legal rules and egal precepts. An example, ie the Juristic ideal of ‘ordered liberly” constructed’ by Justice Benjarain Cardozo of the Supreme Court of the United States in the case of Palko ». Connecticut Agcording %0 this, Juristicconstructorideal, ithe rights guaranteed bythe ‘censlilution to the people are valuable ana important but net all of them are of the very essence of a scheme of ordered liberty.” This means that there are certain rights thateanbe-witharawn or abolished andiyet todo soisnottoviolate the principle ofjustice so rootediin the tradition and conscience of our people as to be ranked as fundamentsl-* Some examples are immunity from compulsory sei-incrimination qualified by the need to sive protection against physical or mental torture, the Immunity from prosecution except as a result of 2 Crimine] complaint or criminal information, the mst nity rom double jeapardy qualified by the equal right that a case be free from substantial legal error o ‘anit 19, Sof Cate af he Paiippnes. provides that tay eruon must in te exercises are in the peform see fh ts, ati use, gue eveyone Hr ie and ser Ronesty fd good lath “Sogoa U's stole scr 140,62 ea 266 SGrounu, Melssipe 297 US. 288,86 5CL 46, 80 Led 04: Sie farenoharets 261 US. 108,515.01 380, 78LEC Gre: Herbert Lausiana, 9798-912, 47 $109, 71 LES 370,Be Leos Panosorer ‘unlawfal aequital > Ja different words, These HERS cari be withleld or even removed and stil maintain @ free body polite with ¢ fair and enlightened system of, justice, But those found to be plicit in tne concept of “ordered iberty” are basic a free society. eg. freedom ‘of speech.» freedom of the press.” fee exercise of rellgion.® the right of peaceable assembly,2® the right to oounsel the right to fair vial and condemnation onlthereafter 1 and the right of privacy against intra ‘Siofi*2 ‘The furistle construct or deal of ordered hberty is thins useful in determining whether a particulsr right Suna L,TeNeetfor a a Approach toe Det a Deabigdeoparts, 28 Pitgine Law Journal Th epas tod Rik eo tenon» Lou SOUS. 282 250,575 ton bl Lt I0e8 DeJongrs nga MOOUS. 89. Senisv Sch 206 258.61 LE0 378, 280 Unter Bustos Soha, 1 Yipee v Dao Ch-GR No, 1298, 400.0, Stn Sepek selaesjatn Ameri rss Co. S87 US. 280,66 808 468,60, eStee hearn nnesra 2090.8 087,015.06, 75480. 15 tte Pega 13 3 ‘Ween Renandex Ga-G R No. 1)26R, 480.6, 1080 nett rd 388.78 a ‘ipoy vu 4 Ph 01: rate» Unvesnyof ealo 2E9 iS 248 Sea 8 St. 197,208, 79 LEH 948 {Bernas Pete: OAM: Dodane Crepe supra Se nen ny pan: Oars Bees 37 Pal age ‘hapten algae 65 Fi. 72; Wiens ler 905 U8. ariseestk a Sa Ee, 285 Fouel Alabama 287 05-49.95, Sieg rriec ase mannan : Epon dod anon 76 Pi. 748: Blane» Une zat is s4i,saSt Hot, 7OLE. 97; Pores, ed ‘Soi Zor us. ses, a8 sick 12, Led 208 Sots chen, Terug at wach. oe sea, oo “5 tr cotan 9s, 2,098.01 1350 988s. 1782 usin. Unto iin 90008. 862: 88 Sc 1256, SOLE 1900: ‘ire. cout Piet Istanes 4 89; Utd Scr Reyes ‘aha a. Tpropuenon 25 ‘ofa parson ling in a pollucally organized society is absolute or.not. It was applled in Malinski v. New York#3 where Justice Felly Frankfurter stated that the due process of law. principle has a “potency different Irom and independent of the specific provisions con tained in the Bil of Rights” because “there are some safeguards which though enumerated in the Bil of Rights arenct essential othemaintenance of fairand ‘enlightened system of justice while others are at the very base ofa free society thatthe protection af the due process of law principle wil ie even when euch rights fre omitted in the Bil of Righte.” By ethical ideals or corstructs are meant rational theories or syntheses of moral responsibility and de- cent individual and group behavior where the aim is toward higher moral grounds, In particular, ethteal ‘deals or constructs refer to what human conduct and, expectations shouldbe. They areimportantas potential sources of legal rules avid legal standards. An example 1é the etcal deal of loving one’s neighbor set by Jesus ‘Christ. This ethical construct may well be the basis of the tort rule that a person must not cause damage or injury towards another by taking reasonable care to avoid acts that wil likely cause damage or injury which ‘can reasonably be foreseen. Another example 1s the ethical ideal that no one can enrich cneself at the expense of another. In property Jaw, it is embodied in the mule thet everyone who acquires or eames into possession of samething at the expense of another ‘without just oF legal ground must return the same. 48226 U5. A01, SOL. 1029, 68 8.ct_781 ‘8pguce 22, Co Code tke Paiippnes2. F LecaL Prose ‘By poltial deals oF constructs are meant rational sheories or syntheses for the fuller direction of the ppolitial processes and for the maintenance of the [Beneral welfare and secusity of the people. An example fp the political ieeal of ur. mot corunun constructed Dy ‘Jean Jteques Rousseau The concept of the general will 4s the counterpoise of the decision of any group in soclely and ie directed toward the general welfare. Rousseau posited the idea that the general wil resides in the people. Since the genera) willis directed toward the Gommon good, then, itis always Just and should prevail for the voice ofthe people is indeed the voice of God"** Thus, the fanction of the legal orders to bring all Farticular porposes, Intentions, choices, and ‘etefminations to conform to the general wil. This political construct envisages the surrender ofa portion Of the autonomy of the-people far the good of the Collégive whole, i return for the protection of the rights which they have retained. This politcal ideal has Influenced the development ofthe concept of popular or reciprocal eoverelgnty. Tt was utilized tn Pavesich v, ‘New England LfeInsurance Company *® Inthe Povesich age. thecpurt stated that “the individualsursenders to Ssocieey many rights and privileges which he would be fee to exercise ina stale ofnature, in exchange for the Denefite whieh he receives as a member of society. But Ines not presumed to surrender all those sights, and the public has no more right, without his consent, to invade the domain of those rights which itis necessarlly tobe presumed he has reserved than he has to violate ‘the valid regulations of the organized government un- derwhich he lives,” Rousseau's politica) ideal was also "Spat J Downe oh Pore Beak, 258,255,290, vesnans Library Eaton New Yore "F8i2a Gs 18, £0'S. 68,00 LRA. 101. emooucrion| 27 TIE EBT SETTER, FTRTOR REPS RE Supreme Court he Philippines sated that over fignty is “derive frre the wil of the people Oy the peopleandior the peoples representative government {hough whch they have agreed to exeretse the powers and discharge the duttes of their sovereignty for the common good andvelfare In so agreeing. tic eizens have selmi underiaken to arrener some af ett private rights and interests swhich were eneulated (0 Eonfic wih the higher rights and larger interests ofthe people as a whole, rprenented by government thus Established by themeehies.~ remo 1955.45, 25... 59, 49 L.E4. 997. Justice Holmes ‘quote ergs “hieaneeceedea upon anecopomictasnn ie lelsce re theory thee site show sion emus fee Chunty dos i siete i sbeeagutearatenetee oes with that they would desi stay farther an ong before ‘ang up iy find Bat stzsngy beers that sy agreement has Hothing td ota teh ot ratty to embaaytelr opinion fn Iie le seta ty various desitons of thie Cou tha site onattisos and ute ine may eeglat if assy wayesohich "we inghttninkinjueous sewhieh. interfere natn tbelioesy28 ecu, Prtosor Since pained wacenAanGy, SARIN WAIN We caseat WEST (Coast Hotel v Parish 4. NONJURAL LAW -Ficim what hao been stated, there are Jews in the Joral sense just as there are laws in the nonjural sense ‘Since there is no word which expresses the opposite of Sjural” and no better term has heen proposed, the Father snelegant “nonjural” se weed, as one writer pus to identify awe in the metalegal sense. Thus, the nonjural sense there Is a distinction between the con- notations ofthe term “law” in such branches oflearning fg theology, metaphysics, ethics, and physies. There are, therefore, four Kinds of nenjural law, namely, ‘divine law, natural law, moral law, and physteal law. Bo Danwe Liv Sirus type of nenjural Jaw §9 understood In two senipe, the general and thé strict epee ettog nae Soyo amen seeensesrarte ne Severna bonnie nests Ba Novaceatimett coment Surat nee rae mi argc a oy Snmiscnureenamescn Eigen coerce a Gis toetarttes Mareen ats Ee ie aes ett aere og ate spreitshicermetaten leg ccen Sehtauahsvioerincerrs Sub aaie eats eee Sig ieeepeee a ten een Bestscetelaee ests saree ES cas noceracn Ibrmonueron Paes General Sence Broadly speaking, divine laws the entire system of perfection which Gad, im Hie infinite wisdom, has, imprinted in the whole of nature to govern ita opera. tions. The ancient Roman jurisprudente foray cae 1 Jus dvinasm We are told that there are thousands of galaxtee in the universe, every which one occupying an Jmmense expanse in both time and space. Tae Milky Way alone, the southern edge of which is seen ona clear night, has been measured from edge to edge at about 300,000 light years. The solar system, of which the planet Earth i but one of nine known pianets orbiting the sun. is only a grain of sand, ae te were, at. the southern edge of te Milky Way. While the grandnature of the cosmos seems to be beyond the human mind, ‘ough its tremendous contents and dimensions are litle by litle plereed with the inctruments ane tec! niques of selence, there is no question of its whole- ness as the psalmist of long ago testified: “the heavens declare the glory of God: ana the firmament sheweth his handy work." (2) strict Sense. In-this connotation, divine law means the law of religous faith which concems itself wath the concepts. ‘of sin and salvation. of death and lf, of the temporal snd the spinitual. 1 is generally agreed thal im this sense, divine Jaw is revealed by God to humankind ‘rough various means of revelation, such ae vision, ‘mystic dream, and deep religious experience. Specinx Lermooucrion 31 ‘AS the law of religous faith, the precepis of aivine lw ate embodied in the sacred writings of the various religions, Aa this is known in all Christendom, divine Tavrisfound in the Old and the New Testaments of the Bible.n the Old Testament, divine law ts embodied in the Ten Commandments It Is writen that Moses, the reat Hebrew leader and prophet, received the Ten Commandments from God om Mount Sinai, in the ‘wilderness of the,Sinal peninsula. These Command ‘ments which are the epitome of man’s duties toward God and his neighbor, are the religious laws believed to ‘have been formally given by God through Moses.®* ‘Although these Commandinents are religious in ‘ature they have at the same ume tremendous secular ‘Slenificance. It is aificult to conceive of any clime or country which has net been influenced by the Ten Commandments, Indeed, many of tne Gemocraticideas fowettheirinepiraiion tothe Ten Commandments and to the teachings of Jesus Christ in-interpreting these Comimandments ‘The first three Commandments are_ purely reli lots. But the Balance carry social, ethical, and exo- hnoniie implications as wel. “The first Commandment, having to do,with the ‘unity af God making possible the onehoed ef human. Ind is religious. The second Cotninandment wh.ch ‘prohibits any kind ofidelatry se also religious in nature. FH eategortealy forbids the worship of other gods. The ‘third Commandment which probibits profaning in any ‘the naine of God i, of course, religious because it Implements the idea of God given im the first two ‘CommandmentarSiniee tr logical that the narse of God should nat be taken Ugly The fourth Commandment which enjoins the set- tung aside of one day of rest in every seven for the worship of God and for the welfare of human life 1s not only religious but also social. This may rightly be the basie ofthe democratic cancest ofsocial legislation very well exemplified by the Blue Sunday Law and the Bight Hour Labor Law. Work and activity are quite necessary Dut se is pencatc rest not only for worship of Ged and spiritual development but also or rest and relaxation, ‘Thus. a person may find renewed spiritual strength and physleal development. both of which make for Ine Abundant. life, The filth Commandment, eealing with honor due parentsby enjoining respect, cbedience and loyalty to ther, isnot only religious but also social and ethical. There 2 definite emphasis hereon the author ity of parents and the respansibilty of chsldren. The respect, obedience and loyalty that children owe their payents foster the indispensable spark of family alec: ‘ion and filial piety, which have become the bases of the democratic concept of love and layalty to the mation, ‘The sixth Commandment which recognizes the infinite ‘worth of humman life and dignity ane the prohibition of laking them is both religious and social. There 1s = definite order prohibiting the destruction of a fellow human being physically or ethervse. Without this right to existence self preservation and séll-realization would cease (o be universal imperatives, This Com mandment, has became, the basis of the democratic approach to social ving. Certainly ities behind partot criminal justice. Sine toss Code mates useofcaptta punishment (dis 2iea2, 14234917, 25; Leveus 217,21: Numbers 36.1623) fr |S conimanded tht “or your iebleos God wit surely requirea Lzcas Puosovirr Irmooucren 33 “The STENT COMTI wT ely pros habits profaning in any way the sacred covenant of marriage mot only religious but alsosacia. Again, one ray say that it represents basic aspect ofthe las of persons and family relations: And itis also the basis of theethfoalinsistehce upon monogamous and generally permanent marital relationship, The ttle ofthe people Jn the stability and solidity of the domestic institution IRourely Inve inthe stegrty afte farniy. The eight Comipandmnent which probiits stealing is Yeligious ‘bur ithav also social as wells economic implications. "Thies the basis of the rit to held and enjoy one’s property nat, ofcourse, strictly for ownershipsake 25 it fe aj me sake of service and stewardship. The ninth Cosaizandament which fas to do with the arong in ficted on another by ging false whiness and une founded testimony against any person in court oF tlsesbere fs religious as well a8 social. Grea injustices recs whoerer shed te boot of man by man shalhis bled SERRE sae on acum tga (Genes 2-8. The Sestipennylonecommutabe ombers05 The puniscent Seeiee efor only fr Reove eres olor ry esse IR Naren astaceInaee. te pong cache eres cold etn wth complteconheence nat the raron EeSsetny pote cenitentoretnous eres voeadiy ak ‘Shegesishgent ef purging ee fom the mst of he peoples Seer uc eeouph nn becomes fatting oe 2 Pe Se comat a nunaed eabnes aa sil eels 6 10- Sie hea the patecephertencher is saying that capital otidhert et deren tn hat there iso eer ect Fernete hess crimes tan capital panibaent. in ue New ‘Feeata re pena of eain a conned dezus Chr, poke Teafucueud S042, 257, 2059: Mare: 1-1: Lake 827, SeaNet St Feu epee and helogian, alo refed tothe death pemity acsefie poses 28 26:25 288-12, 2617-8] atrmed Pecuchin psu he leter eo the ary Chifatiane in Rome iRmiar' Sirs) Jesus Gnaseered othe Monte Law of 960 rest ONT AE TORT a Ing witnesses van the hat pegury lw Be eat Commandment deslvtth peed and vvetoceness desintety pris the longing for things one cannot geby horent means ete, set na cconom fRrnature Being an inward sutfecive lech con "easily destroy peace of mind thereby confusing or ‘erping the Sear of values of The person harboring ‘such greed. r oe In ths New Testament, vine law i found in bod the Ten Commandments sd in the teachings of asue Chris The later a ound in Ms iterpetatons ofthe acca mone tate en att tmecrarest ttre tamer SITUS Sacra ae ea Tesi trcmtn et omy tae orgie aieranaemeah menses engl aticeearg teaapea eeagrs eee mewn aanieuececs © Bettiegtenta iemeblaechhinare ree Siecoh at eect onoories an eae Eels adenine mar eeoa Lemus Puosonse econo 98 Oe TeSTaen CoRRaRETRENTS ae welras ree TET Yeligious and ethical insights that He presched. Fis fresh ethico-religlous insights are stated and Mlus~ {rated in Fils incomparable Sermor.on the Mount.* The teachings of Jesus Christ are epitomized tn-His Great ‘Commandant which ordains all persons (0 love God and one another In the manner preseribed by Jesus Christ, imself In brief tfone is imbued ‘with this kind ofoveit is inconcefvable how he or she could even: think of violating any of the Commandments. “the teachngsofuesus Christ arealso contained in iis interpretations of the.Old Testament Command sents. Fer example, the third Commandment whieh pprobibite profariing thename of Godor takangHis name Frvain is ntempreted to neiude the prohibition against ‘Sweating and cursing ® Thus, te use of divine names Sndhoat necessity, seriousness and reverence, and any altitude of ireverence and flppancy toward God be- Speals of disobedience to this Commandment. The thith Commandment, for another example, which pro- ‘hibits king so that one may escape God's judgment of Geath;was interpreted to Include anger without cavice Gnd:fatiore to reconojle diferences.®° Here Jesus *885, anew vt ich pS. Jon. Jenn Crt Tis sangabmmarcments fat ye love ane anaer ae 1 have loved you ‘heae ie words in Creek tha ca be ranted ro he ‘ugpah word "ove Onein efor which means remantcove. The [edie pio which sane broil or ilove This meaning ‘SSijeesebatn word like pitnaheophy or padsiphi, Te third {Epaeeofuch mean eserves pao’ ad consi eit reaerastum iwhorn bestowed. one at gives (hls cum presse that to whch the therhasto right. tthe Der Ghinglorerceaié tn Jesus Christ Thtathe signa mot Sfesgerd oe in ‘Chilstis drawing a contrast between the outward act of kalling, which a judge ean pass sentence upon, and the inward thought of destroying a fellow human being ‘which God alone can judge: For still another example, the seventh Commandment which definitely pranibits adultery and concubinage was interpreted to mean not only actual vielation of the Commandment but also Includes any unholy desire of the flesh °7 Thus, obedi= lence is something that goes beyond overt observance for itis equally clear that sin may be commatted in the mind even belore itis translated into outward acts, The plain teaching of Jesus Christi that itis not necessary to commit actual violation of any aw to really violate it A mere desire to violate the law 1s tantamount to ‘raneigressing it . In the Islami tradition, divine law ss embodied in ‘the Quran as well as in the sunna and hadith of Muhammed. The Quran #8 regarded by traditional Mislim belief ag the very word of Gad revealed ta Muhammed through the archangel Gabriel There are certain similarities berween the Christian Bible and the Muslim Quran. Not very many know that a Muslim cannétremaing me Muslim ithe or she did not believe Jn Moses and Christ, although the Quran places Christ ‘m-the status of @ prophet. The substantial point of difference betveen the Muslim and Christian traditions: is the formers inability to accept the doctrine of the ‘Trinity and the Sonship of Jesus Christ culminating In His crucifixion. Islamic tradition has st that someone clse took Christ's place on the eross at Calvary, A coniplete consideration of divine law properly belongs to theology. 7 See 28. Sina w37-28‘sea. Prosar Irernoouecrion 37 Raa Dav Gite thinkers long. ago laid the basis of the etassigal theory of the natural law and developed ils ‘spe characteristics asa dlecipline But the concept of thetatral law id not originally mean the senee ‘whic is now generally understood, although thas remaljed al along metaphystea! eoacept. © Historical Background “ ‘Thenaturaiow theary hs had e onghstery. But only highlight need be copadered to getit nta proper perspective. fuller examination of the subject prope Erly belongs io metaphysics.» ‘The eomeept of natural law appeared in ancient Greece. IL. developed in connection with the order and regularity pervading the whole of nature without which. the cosmos would be plunged into chaos. Thus, beginnings of the concept of natural law was inter: ‘wined with the notion of the law of nature in accord: ance with which everything happens as they should.®* Im this sense, Herachtus (§40-475 B.C) referred to natural lew ae the rations) harmony and order of divergent things and events, including human. + relations, "Ean expanaioncf he natal iw ery en chs te vewpoint i ound ne Onwerty oer Dame Neral Law lege sere pudievane to restos the mca f ‘trl th parte emphases ecbing ‘resang problems found inthe Sauthem Metada Unvesy oe Sa 0. Rar JE and Scwonmo Moe P-Scnene ‘aise 201; Cambrtge Unversity Press London OPROCTES USAUS H.C J SCTER THE aati inhis plays performed inthe theatre, which atthat time ‘enjoyed quite a degree of freedom of expression. In his, ‘yogic drama entitied Antigone. Sophocles consid ered natural law as a “higher lew" enjoying. primacy over human conduct and order. In this drama, Crean, sing of Thebes, forbede the burial of Polyneties wham Creon had killed inbattle. Creon considered Polyneiiees, a rebel and ordered his body to rot outside the walls of thecily, Antigone, che ister ofPolyneikes, pleaded with CCreon to allow her to buy her brother. In making her fpgeal, Antigone made an impassioned tnveeation of the “immutable unwritten law” and the “irefragable law ordained from above.” Antigone’s anguished ap- ‘peal fled to move Creon who insisted that aa king his (Geeree stands. Antigone defied Creon’s camamand and performed the funeral service for her brother. For this, Antigone was buried alive. Ik was Plato [497-970 B.C.) who straightened the ‘way for Uie development of the natural law as a isei= pline to which human conduct and relationships Imnist conform in order to realize both the individual ‘and common govd, Plato drew a dividing line between lie ideal natural law, which he characterized by the “ought, and its defiled representation, which he delin- cated bj the is" 8! Thus, Plato emphasized the contrast. ‘between the naturaland the representationalconceptof Justice, “Stated cifferently, Plato distin-guished be- ‘ween what is just by natural law and what is just by positive law. Pian acts, 258, Blot aan, F.C. Cllr, Mee York Stpuno he Raraun S806 8346 Bloomin, Se fra Ugierty Press London “thyeradluanl entre c Pete's ding ne Soe Chap tert on Ratna ose,Lena Pinson Ibrrooucnon 38 ‘ristatle G84 SOE. [gave nclearer distinction between natural justice and legal justice ® Anstotle iferentiated between falr equallty—perfect justice— land what sdue and proper—smperfectjustice.°* Citing ‘Sophgcles, Aristotle posited the idea thatthe former Is, binding everywnere even in the absencecf communica tion oreontact amang different peoples Sascontrasted ‘with the latter which cannat be general without some ind.of agreement Thus, for Aristolle, what is due ‘and proper may sometimes be contrary to what Is fair ‘and equal? {At the time of the Stotes, the Roman world was beginning towane. Asa result, there was an apparent tendency for rulers and governments to daft away from Javiful procedures toward arbitrary courses of action, In thismileau, the Stolesattracted quite alangemumber ‘of fallowers principally due to thelr ethical philosophy ‘of eqiality A familiar maxim of the Stes: All men. fre equal by divine right since all men are of divine brigin. ‘This is an eeho from Cleanthes’ Hymn to Zeus: “For'we are God's offeprings and alone of living crea: ‘ures possess a vaice whieh fs the image ofreason, and SryromeA. 1, Ross Tanto, Osdndntereity Press antag Biya. 30.19. 3S. fejebarEnce 7. Roe Tansbiten. Oxon Presson, “stent. 36 Roe ‘ransaton, Ord Uneray Press, ‘ont, Wil Blackstone expresses te ue vew by taing Ueeugaiuat tow s binding slimes and places Comers nib Lae or Enon 1th Editon, Oxerd Uneroy Press. Ye Borne oud by 20 (3602708. He taut nt Ss ee sited Porn ben. es Beneraly TE UGUOT God a ave eal ae HUGH VEIN aS monarelt for each man is a divine spark of the eivine reason.” Their outlook on life was characterized by mental fortitude, discipline, and serenity in meeting uncertainties and difficulties. Surveying the worsens ‘ng conditions of life and order m the eivl socteties in. the waning period of Roman rule, the Stoies turned their attention to the regularity end uniformity of nature. Its abiding characteristic provided the Stotes ‘with the Idea ofa durable, well-ordered society. Thus, the Stoics posited their great teaching of iving consist ently with nature. Pul éiflerently, to gain a iife of discipline and ealmness one must live naturally — to live and move according to nature. For the Stofes then Jnuman conduct mustbe brought in agreement with the abiding character of nature. It wes Fplctetus (50-125 A.D)},#8 later Greek ‘Stole philosopher and contemporary of St. Paul, whe fenhaneed the metaphysical significance of natural law fon the basis of his aversion to matenalism. He advo ‘ented the freedom of the himan will from material TS tet ye i he ee Pe a ee es ee Brest deep erent eae a ae Pon cee ee Sarpedeey bake tara pecsorat arora ree etn sactien Pomc ipeien iat Seesostntracete Me ietasl celta recede Bienen ster geptr mc’ freee Sager ane ge inet Os te ot ae. ec0, aca, Prnvoscene Triage. For Epictetus, no one Wea slave whose willis ree foo false and self traits which are the things tha frustrate the fulfilment of the natural in human beings He believed that the moral nature and good faith of human belngs are defeated by dependence on ‘atesal things: On the basis of this metamatertal~ {ste perspective, Epictetus viewed the natural law as a ‘seipline engraved, as itwere, in Use heart and mind of ‘humgn beings, Having attached the natural Inw (0 the moral nature of huxnan beings, Uhe natura law became the partlipation of humankind in the divine law, Thus, natural lay. became the core of human pereonality and dignity enabling a person to act with Fighteousness and justice ‘St. Paul, apostle and theologian, deepened the ‘Greck concept of the naturel law. In his leter to the ‘atly, Christians in Rome, he epoke of persons "who haveno knowledge ofthe law act in accordance with it by thelight of ature, they show that they have the law pthemselves for they demonstrate tieeffects ofthe lavr operaling in their own hearts, their own conscience Chdorse he existence of guy law, for there is somne- thing.which condemns or commends their actions.“7 ‘St Paul rejected the ‘cea of conscience guided by customs and superstitions. He stressed conscience gulted by loveand reason atthe same time emphasized thesteallty that there are people who act according 9 plural law even though they may have no idea about owas Ru, St piiopher. anita esame neil sf Topycowsts |, 19,18. Older Trandaten, Harvard ugly Pane, Cambie ‘Titans 2-18 28, PopaTrensition, The Macraon copay. New Yrk Ieoouenon | a ‘THE FESWOH Te CHISTES What Wale SORERTERCE FORTE BY love convince them of the righteousness of commend able actions, This is St, Paul's concept of enlightened tcansciener a8 judgment oF choice rooted in the heart fand mind of man, This is an eche from the prophet deremiah. one of the. greatest figures in the Old ‘Testament, Jeremish preached the unusual ides that the only rea religion fe the religion of the heart and that relighuls eaerifecs should be deprecated. He, then, ‘spoke of the covenant of God: “I wil put my Law inta their minds andvmiteitin their hearts."7? Butitwae St, Paul's concept of the enlightened conseience that ex posed the impersonal, that is to Say apartness-from. God abstractions of the Stoie doctrine ‘Augustine in turn echoed St, Paul when he ex [pressed theview that good faith is present in all human being, rot excluding the perverted and the depraved, without regard to race, ereed'and station in fe. Thus, ‘Augustine concluded that no ene ean really plead Sgnorance of the natural law because his innate good faith and moral nature are never silenced.” (2) Concept and Precepts Since the natural las said toe present in and binding on al persons at all mes its precepts have ‘been considered as continuing, proteetive principles Ghat hold for every Human society notwithstanding Ailfeences in ethical conceptions of expressing them outwardly. ‘The Universal Declaration of Human Rights." and the European Convention on Human 72 seers 31.58 reust Af, Augusie' Phosaphisa! Teoryofla, 26 re ame Lsuger 288, 7Rvewmeoe ores Une Werans_ (1946-1840), 545-557coe Taghig 7 are ponited dat as tie Woden expression OF viewg,of many aliferent nations of widely diffenng, social. and political ideas and philogophies. These agresmhents ‘are not the result of political agitation, propaganda or rhetoric but of the preserice in all hnumian beings ofthe precepts of the natural law. Lean, Frivosomy From all that have been slated‘above, the concept of Wie natural law may be staied ag the universal Giscipline of virtue impreased inthe heat nd mind et Jaman beings fo gulde them in the exercise of thele THgM, in the performance of their obligations, in the dbservance of rules, and in the preservation of peace fd uniy.‘The essential matters of the natural law concept are embodied in this definition, namely, the ‘scope of naturol lao which is universal, the character of natural law which le a ecipine of vrtie, the reuafin of natural law to humankind sohieh ts ‘ts tmpigsionin therhearts and minds, and the Uirus of afi law whieh fs to guide human beings In thelr et and utterances, ‘The precepts of natural law are righteousness, sJostée, equality, and faimess, Righteousness Is the ‘virhié of doing that whieh is right. Justice'is the aitibute of administering that'whieh is just among persons. Falmess is the: quality of béing honest, Egyalily s the character of being impartial. (HB hanercan ournal of international La, 26-9. us Dparroouerion 43 S18} am tir the Legal Order ‘The natural favr has been utilized to justify, ope pose, regulate, or interpret human actions and con duct” (a) Justificatory Use ‘The natural law has beeh used co warrant some legal innovation, orto support some claim to authority, or simply to vindicate one’s side ofan issue or personal conviction, In Roman times, for example, the praetors peregrint made use of the natural law theory to hasten the development and application of the jus gentium to the foreigners in the Roman empire in lieu of the older jus cintle whiels was applied by the praetors urbani to Roman citizens only. The praetors peregrin developed Tegal concepts based on principles of faimess ard equity which theY appled to all conquered peoples with (ifferent social ana legal practices. A distinctive mark ff the jus gentium Is bora fades and Sntention of the parties to. contrat rather than the mere words used, ‘The natural law theary was also used to warrant the acceptance of certain innovations im the law of nations. Alberto Gentil (also known as Gentiles), Jago. dde Groct {also known as Grotius) and Pulendorf used the'natural law theory as a broad basis for their respective works dealing with the bocy ofrles govern ‘ng the relations of sovereign states and entities which are endowed with Intemational personality. all three TBpcone, Rey herccuc To Lesa Histone. 148, Harveed very Pre, Carrtgea boa. Pvososier Iermopucrton 48 PUD ICETS CAEN OE WOU PUNE Tre TUTE Jeremy Bentham was later to call i public inter national law. “erotts, in parteular, well realieed that states woul not tolerate, et alone accept, any syetem of law based on the positive legal system af any one county. He;therefore, used what to him, were principles that could besjustified by the precepts of the natural Jaw. ‘Upon these principles, Gratius but the structure of rules dealing with the relstions of states with one another. In connection with this particular use of the preoipts of the natural law an influential modern publicist” stated that the present “search, for a sepa Tate'baos for intemiationa} law ts not ony tllogical but sotily harmful" With the revival of learning iA Europe during {hel thand 12th centuries, the natal law theory was lsd by Jurists-theologians to justify the claim of the Roshish Church to temporal powers. About three cen~ {urles later, Martin Luther also utilized the natural law concept In his drive to modify and purify the older (Church order and, later on, toadvance and suppor. the Protestant Reformation, which coatrbuted greatly to the rapid rise of nationalism in Europe, In Inter juristic growth, the natural law theory played an outstanding justifieatory role. Jeremy Begtham, for instance, rationalized his ¥eforms in ‘Fremarc C. enon Lt, 9.711. Appston Ces torr Git ew Yor release Aivercano propos a Aferent basa for ne satogal lin soak ene Te New Pourngen chee i Macan a Co- Sew Yor nights aoe oe a TOral Taw Wieey VORLOCRS oe lused It 9s the basis of his philosophy of natural rights which he posited as inalienable, John Locke also used the natural law to justly and warrant the people's withdrawal of governmental power whenever the gov ernment persistently and deliberately fale or outs the ‘wil! of the people. Locke staies that if sovereignty residesinand remains with the people, then they would have both the righLand the obligation to withdraw their combined support either by means of the peaceful lectoral response or. as e last resort, By the neble hough ‘uprooting revolutionary response. In more recent times, the natural law theary gave powerful support for the Nuremberg concept of "crimes against humanity" and for the Declaration of Human Rights of the United Nations Organization. and just a few years beck, the natural Jaw was utilized to jastiy the BDSA evolution in the Philippines which erystalized the idea of people power. ‘The natural law theory has also-been utilized to justly innovations in the legal system. For instance, in ‘the Philippines the Code Commission placed the pre cepts of “justice and equity above strict legalism oF form” inproviding rules concerning such legal concepts as quietingoftile, reformation ofinetruments,estop pe! trusts, and natural obligations.7° “With respect to the concept of natural obligations, the Code Commission made use of the natural law. a6 ddd the ancient Roman jurisprudents in tempering the severity ofthe jus cule, to warrant the incorporation of ‘79rapoe ov ms Coot Comoe on re Pres Crm Coe ‘ie Panes 28. Borenu oF Pang Mal,46 ‘Leen Prosorte eosueToN fF bigutons~trr-the-tega-sy embodied in Book V ofthe Civil Code of the Philippines, ‘Tie Il thereof s, with the exception of article 1427, ‘a istinetly new set of rules "not unequivocally recog- hlzsd as euch" im the Civil Code of Spain, wich was applied in the Philippines up to 1949, Tide I! divided ‘obligations from the standpoint of the natural taw into Civil and natural obligations, The first provision states that eb obligations give rise to legal right that such obligations be performed while natural obligations, not being:based on positive law but on the natural lav. espetially on the precept of equity, donot giverise to 2 rightjof action to enforee the performance of stich ‘obligations but should they be full voluntarily by the obligor, chen the obligee can retain what has bees delniered orrendered.®2 As such, they may nolonger be recovered or undone evert on the allegation that they were given or done without any corisideration 5 [) —_Opposttive Use “The problem heres not ed much with the relations oftnhvuals to indivichaals ag iis with the relations of sndiifdualsto government. To putitin another way, the Pris Cote Commieston stated that othe specifi eases knayeleblpationeYeognited iy the propoee Cll Cade, here {Snbeat but ep duty ta peronm or pay. ba the person thus Pelco payngieals hati good consienese should comp ‘Sahhioncafhing which batedon eral ands Ely Trot nr dealing, nator stise thee ae afar al, the ‘ud foundations o¢ab pontive ev. -_. Theessece, therfore ‘Sree sujet str ei te tat te aura fe nakral ae Se nell 2 squltye Memorandum of ne Code Corission, 20 Uapege Journal 0, ‘lini rs 1160 ofthe Cr Code Span ‘2p 128, Gh Code ef te Priprnes other aura obigeiora are ae forth in Ales 1424 to 0 a ibe Gi Cae ofthe Plippines. ARLES FEVERS" ME CEG WT Tay Yarranta person orgroupolperaons insetiaingto0 Arle not necessary forthe sale el dicobsdignee bet to emphasize the fact that bind obedience to gover. ‘ental authortty tent good ete. Pound pts sia Asiriking manner. Since the Iw ie erent rae lowe its ot atl surpesing tats person may respect the lnw and yet object to o oppose a parucular stata. This io @ problem. Legal potinsts td matural aw autherente do nat es eye-oaye on thls issue: Bul tis disagreement only pote into sharper focus the etdgue agaiet the satura aw ineory Ordinarily, the Astural law does net, advocate aisobedience to a bad statute, order or decision, Even this kind of aw has to be obeyed, The natural law does not release a person from the duty to obey such a statute, order or decision, But obedience in this case is Pot premised on the [act that they arelawe but because disobedience would in itself.be in derogation of the natural law. And the proponents ef the natural lew Uheory cannot seem to overemphasize the ea that the natural aw does not countenance blind obedience. For them, “nonviolent noneooperation with evil is as much ‘adutyas is cooperation with good.” Since a statute that 4s contrary to the precepts ofthe natural law is looked down as deceased, then, it becomes the right as well as the chity of the people or.the individusl concerned to reveal and protest such statute, order or decision 8° ‘The American Bar Association, through its Committee fon State and Federal Taxation, has advocated this ec petTane RT Seance, 12, Wert Publishing Company Banco. W eccuenov v0 Rewime Jumeminecr, Harper a Brow, Ne Yorke Sg48. Loa. Posen irrooucron 49 x onecte ie umeyuisocnlly delared that the precepts of the natu lay are iniatons to which aoe showt be Stnjeet!™ (3 Regulatory Use ‘Juriaprudents who are natural law devotees go furthér than the philosopher concerning the regulatory Lise of the natural law Its not fonclfal to state thet there are statutes ‘which are unjust, unfair and unequal even when they ‘are not constitutionally suspect. Too often statutes or regulations of this kind are observed simply because they exist. While this may be confusing, especially to ‘the upinitiated, courts have applied the precepts of the natural lawin deterring the vay of such statutes, (or regulations, ‘Phe regulatory use ofthe natural law fs rooted in tnconcient mantle njusta none tev™ on te deka tf cleeo and Thoms Aquinas, Cletro advocated the {dea hata pleceofleglaion wouldbelresfrom protest only if st were enacted “naturally.” For Cicero, the natal law has detntely this function because "i Is fot allowable to deviate fom the natural law. nor ean {tbe sliered or abrogated, Nether ean the people be relessel from thls law elther by the State or By the themselves." Thomes Aquinas, on Die otber and, posited the idea tat “every law enacted by the he Mora sue 27 Ted 0 : Sige PPaenacs, Sacre Won, 6, University of Phisdepnia Press ade "Bebe nerves Booc I, Chat. & can oye tne character Taw Wo IRE Extent Dat iets derived from the natural law."2° Obviously. any Statute or regulation that is incompatible with the precepts of the natural Iau is a corruption of the lew. ‘Thus, Inthe hands oflegel philosophers who believe in the natural law theory, a statute or regulation Is null fend void when is contrary to the suprapasitive law even when tts not inconsistent with the eperpositive norms of the constitution, ‘Tiere are two grounds advanced by those who favor the regulatory use of the natural law. ‘The first is that no statute can violate the precepts of the natural law without producing an adverse reac- tion from the people, For the natural law scholars, i is Unthinkable that the people would heve ylelded oF entrusted to thelr representatives in the lawmaking body the power to enaet statutes which would be Contrary to the precepts ef the natural law. The classic ‘suthorities clted in support of thisargumentare Gaivin’s Case.*! Bonhams Case." and Savage's Case.% In Calvin's Case, Lord Chief Justice Edward Coke used :the natura} law in denying the claim of King James thai after the unification of the erowns of England and Scotland he was above the Parliamentand not subject to its enactments. Ia Dr. Bonham's Case, Lord Coke struck down an act of Parliaznent which 82mm Treason, Part 198, Fatheré of the Engish ominlean Provnce Translation. Bume, Oates, & Washers, A Coke Rep. 1,77 Begl-Rep.$77. Court ings Bench 995 Coke Rep. 119.77 Engh Rep. 640, Court of the Rings ben Bes coe Rep 18,77 Bh ep 897, Cou eps50 Loan Prnosoriy ernopuenon | 51 AUDIOP ZENE” PESACH ETERS AT WHE RGF Collegeof Physteians, a London corporation, to lcense ‘phystelans topractice medieine, to prosecute before the oliege self any person practising medicine without @ eens and to impose a fine half of which accrued to Hoel. Said Lord Cake: ‘The cendors cannot be judges, ministers, ard partes: judges to give sentence or judg” ign; ministers to make summons, and par- Les ta have the motety of the forfeiture or ne, fla aliqis non debet esse Judex in propia Gqusa, imo iniguim est aliguem suac ret esse Jidicer: and one cannot be judge and attor- ‘hey lorany ofthe parties... And itappears bb our books that in many eases the common Taw wil control the act of Parliament when an act of Pacliament is against common right and rtason, or repugnant or impossible to be per~ formed, and ‘sometimes achidge them to be luterly vol: for common law wall contzol i, and adjudge uch an act to be void." i-Savage's Case, Lord Chief vustice Hobart de- clared that an act of Parliament made against natural equity. . - 3s vold in itself for jura naturae sunt one tabla et toges tegurn. "= ‘The influence of Lords Chief Justices Coke and Hobart Is quite marked. Justice Green ef the Supreme Court of Tennessee stated in an early case that “the lavanaking power of the people (e vested in the lesiela 4 refuaton tthe regulatory useuttuenaturattante found \nPlunctts De Bonhams Careandvudl vin, 40 Hara Uaertene, 20 Tre andi follows that the legislature may Go anything ‘within the legitimate scope of legislation... Bul there are certain limits to the exercise of legislative power whieh have been recogoized from the earliest times “These are the elernal principles of justice and equity Which no govemment has a right to disregard, It does not follow, therefore, that because there is na restric= tion in the constitution prohibiting particular act of ‘the legislature that such act se constitutional. Some acts, although not expressly forbidden, may be against the plain and obvious dictates ofreacon, and, says Lord Coke. void."9 Chief Justice Chase of the Supreme Courtofthe United States, taviriting the decisios in the License Taxeases, appealed tothe natural law. He sai that"thereare, undoubtedly; fundamental principles of ‘morality and juste which ro legisiature leat liberty to ‘isregatd."% So did Chief Justice Hosmer of the Su preme Court af Connecticut in Goshen Stonington. #7 Indisposingof the issue of whether aretroactive statute may be held void even though there was no constitu tional prohibition against such Kind of statute, Chief Justice Hosmer sai Showld there exist... 9 case of direct infraction of vested rights too palpable to be ‘questioned and too unjust to admit ofvindica tion, J could not avoid considering st a3 @ lolation of the soclal compact, and within the ‘eantral of the juditary. I, for example, a law js passed without any cause to deprive a person of his property or to subject him to Spank ef'Stateu, Comper, 2 Yet. 59, 6: 24 Am. Des. 617, 321 285 wat. 1u.s) 062, 408, 8 L827, 0, 74 Gone. 208,52s [Lenai Punosori Isooucrion 53 TR pTSOAATER WH-WOUR Hat AUTO AT legality and who would aid in earsying it into ‘tect. ‘ustce Harlan of the Supreme Court ofthe United ‘States frankly admitted that "the courts have rarely, if fever: felt themselves so restrained by technical rules ‘hat they could not find some remedy censistent with the law or acts, whether done by the goverment or individwal person, that violated natura justice or were hostile to.the fundamental principles devised for the protection of the essential rights 22 ‘Thus, Professor Carleton Kemp Allen, a proponent ofthe natural law theory, could state vith come amount ‘ofassurance that “all law rst postulate sorne kind of ‘common denominator of just instinet in the coma ‘ny: There s na meaning in any legal eystem unless this foundation exists... Itneeds ne subtle delecties twdemonstrate that there isin man atleast an elemen tary perception of justice . . . which no law dare Dagrandy transgresa."> ‘Perhaps inno other country has the regulatory vse ‘of tie naturallaw been more pronounced than in Gerinany during the first decade after World War It Duntng that period, jurtspradential thinking in Germany ‘underwent a basic change characterized Uy a revival of ‘heiatural law theory. This is explained by the fact thst Gentian jurisprudents were eager to show their oppo: slian' to. the philosophy of legal positivism, having 8Sidonnochela Bdge Compeny v. United Stoes, 216 US, 177,392, 908.01 S66. $4 La 435, THEN 303.4 ation, Cnr Univer Press, tendon. Seed GAL The qualip of Conscience in their app alien of positive Iaw of dubious legality daring Hier’ ‘hire Rejch, Thus, within Ove months after te Allied Control Council assumed full atnerty throughout Ger any, a decision reflecting the revival of the natural lay theory was promulgated by the “Amtsgerieht ‘Wiesbaden. ® ‘In another case, which entered on the problem of whether the Nazi goverment sequired Droperty rights on goods and things secured under a Statute countenancing discriminatory treatment of Jews sand whether the plaintiff a Jew, could legally claimn for restitution ef-the properties of her dead parents from the defendant who had purchased them at public auction, the eourt ruled that “according to natural Jaw there exist human rights which are immune even from, fn infingement by state legisiation. These rights are $0 immanent of man that their abolition would constitute the destruction of the spiritual and moral nature of man. One ofthese rights is terightof property... The state can never tolally deny man or group of men whe have done no wrong the right to possess private prop. erty. Therefora, the laws confiscating Jewish property are incompatible with natural law and were vere the very moment they were promulgated, "10! ‘To summarize theirs argument, ttisnot possible, then, that the people would have yielded or entrusted power to their fepresentatives to enact statutes which ‘would be in violation of common right and reason," 0dGauned \, Constiona eveooment in eshuar Gor inn gp Vegi Roe 102pp Burhans Case. Coke Rep. 112,77 Rng ep. 648, ‘Coun othe Kings Benetme Leta Puesomiat Iiroouenon 55 itraiy whe Tmamutabie principles of Justice and equity." or would be “ineonestent with Tiglteousness and laieness," “or would “abolish Tights 0 immanent of man, to# ‘Thenatural aw devotees advance another ground ‘osustatn their argument that couris can hele statutes, ‘and regulations null and void even when they are not contrary to the constitution. Iti contended that the people themselves may have expressed thelr preference for the precepts of the natural layin their constitution ‘mestablishing the state. In the Philippines, te pream- Dles of the 1905, 1973 and 1987 constitutions have Deen cited to support this claim. although natural law Scholars concede thatthe preamble ofa constitaton Is hortalory and does not directly bestow rights they, Rovertheless, insist that the preamble cannot be simply ignored for it announces a ¢otial creed laying Bown:the type of governance that wlll promote the purposes and ends orwhich the constitution isordained by thepeeple. ‘The preamble to he 1835 constitution provides as folowss ‘The Filipino people, imploring the ald of Divine: Providence in order to establish a government that shall embody thesr ideals, Sonserve and develop the patrimony of the nation, .promote the general welfare, and 1O8roweta Albapa 270.8. 45,7718. 188, 835,00 65. 'Osneta Costa. cess 6? Ph C28 108 supra 208rotony v. Ruz 8 Pi. 201, cng Bold v, Roberts 175 U8, 201,208. Ch 191. LBA, 188 Secure to themselves and thelr posterity the blessings of independence under a regime of Justice, liberty and democracy, do ordain and promulgate this Constivition,°” Im the 1973 constitution. the preamble was,com: posed in Unis wise: We the sovereign Filipine people, implar Ing the aid of Divine Providence, in order to, cstablish « government that shall embody our ‘deals, promote the general welfare, conserve and develop the patrimony of our nation, and secure to ourseives and our posterity the blessings of democracy under a regime of Julie, peace, liberty and equally, do ordain ‘and promulgate this canatitulion. ‘The preamble ofthe 1887 constitution provides as follows: ‘We the sovereign Fuipino people tmplor- ng the aid of mighty God in order to build 2 Just snd humane society and establish a ‘government that shall embody our ideals and Sspirations, promote the common goed, con serve and develop our patrimony, end eseure to ourselves and our posterity the blessings of 107 De a Casta». Cieafas. 6? Pi. 66. The tem Teuatiy® which appeared inte pelminary dao! he peambictotie 1585 ansition snd tatee approved 8 the Cons uta! Convestion. fee ceed in the nel copy ofthe presrble. The Camention| Deleredthat heen which the lerm'equally” alga wesaiendy bodied in the tet “cemocraey” Ait, Foe ce We Punuroee Const 114. The tamers of the 1970 ab 1987 consttauons deeded oretumn the tan -equaliy” tothe preaBB Leow. Pnieeorine ‘independence and-democracy wader the rale ‘sflaw and aregime of truth, justice, freedom, Jove, equality, and peace do ordain and ‘promulgate this canstitution ‘The proponents ofthe naturallaw contend thatthe legaorder established by the sovereign people in thelr constitutions basedoa the precepts ofthenatwral law, {There are two eases in the Philippines of some slgaifieanceln theregulatory use othe naturallaw. In Rutter. Esteban, © the Supreme Courtstruck down a Statute with the application of the natura lw natwith ‘standing the Court’ inital finding that the statate in ‘question was not untonstitutional. Thirty years after the. Ruifer case, in Luna v, Intermediate Appeliate Coutt.\@ the Supreme Court set aside a wit of exeou ion of a final judgment with the use of naturel law akthough the Court had ruled thatthe wat of eceeution, was legally issued Im thease of Rutter, Esteban, the issue inyelved ‘he valiatyofRepublicact No. $42, otherwise known as the Debt Moratortum Law. The statute embodied sth some modifications Bxecullve Orders Noo. 25 and 32, fscued on November 18, 1944 and March 10, 1945, reshectively. The pertinent provision of Section 2 of the staflte in question is as fellows: Alldebts and other monetary ebligations “payable by private parties satin the Philip- ‘ines originally Incurred or contracted befor= December 1941, and still eraining unpald ‘eles aa Iemonucron . 87 ‘any provision oF provisions in the contract ‘ereaiing the sameorin any subsequent agree- ment affecting such obligations to the con: ‘rary notuathstanding, shall not be due and dernandable for period af eight (8) years from, and after the settlement of the war damage ‘claim of the debtors by the United States: Philippines War Damage’ Commission, with= ‘out prejudice. however, toany voluntary agree: ment which the interested parties may enter into effect after the approval ofthis ct forthe settlement of said obligations, Royal Ruiter argued tial defendant Placido Esteban ‘cannot hide behind the Debt Moratorium Law because ‘he said statute wasuncenstitutional Because impaired Esteban’s contractual obligation with him. Rutter ‘showed that Bsicban's obligation was embodied in & [pre-war contract which Esteban promived (0 seltle on fr before August 27, 1943. Relying on the decision im Community Investment and Finance Corporation Garcta,}8defendant Esteban argued that the statute in question was constitutional because t was a valld an Justiled exereise ofthepolice powerat the state operating 1n thetraaitionalsrea of publiewellare, more spectieslly ‘in safeguarding the vital economic interest of society its credit structure. In support ofthis apecial defense, and ta comply-with Section 2 of the Debt Moratorium, Law, Esteban placed on record a certified true copy of his war damage claim No. 031125, which he had Bled with the United States-Philippines War Damage Commission, The claim amounted to P47,050.72 whieh he sustained during the war. Esteban also put in evidence the certificate of award showing that of the 1105 pau 28.88 ‘Lean. Puosonier 5 ‘718.34 awarded tshima only TO thereo? ‘was paid by the commission. The Court faund that Estelan’s obligation with Rutter was a pre-war debt remitining unpaie. While the Court conceded that the statute in question impaired the obligation of Esteban to Rutter, the Court, however. ageeed withthe former thatthe debt moratorium law was nevertheless “a valid exercise of the police power of the state for the general syelisre." The Court ruled that ehe statute im question, ‘as constitutional ‘Normally, this would have been theend ofthe case, ‘and of Rutter too! But the Supreme Court did not rest ‘on the question of constitutionality ofthe debt morato- ‘iumlaw. In searching the problem further, the Court proceeded to inquire into the naturality of Rulter's lain} against Ssteban via the suprapositive approach and:toncluded that the debt moratorium law was, neveitheless, null and void as jadged bythe precepts of the patra law. “Ae full Court, speaking through Justice Felix Baulista-Angelo, polnted that the peried suspending payinent ofa prewar debt, dating as far basi ax 1941. ‘wad:funreasonable and oppressive.” Continuing, the Court held that even though “the purpose of Congress fs plausible, and showld be commended” the relict acchrded to pre-war debtors was nevertheless, unjust ‘and inequitable to thetr creditors who were practically Jeflat the mercy of the debtors. The hope fthe creditors to get paid was extremely remote, ‘The Court Identifed two fects which made t con- elude thatthe statute question, whale constitutional, ‘was" unreasonable and oppressive." The rs that the seillement of the war damage claims fled with the Tr Iemoaverion 58 RRS Sates PRB Wa DETTE COMTTOT vas not only unesrain but aloo preci) mh Sepended entirely on the Uied Sins Cngrese whl ‘ay or ay not sppropmate the mnt esesony So Cover the balance athe approved mnount svardes to theclaimant na word te eg year period posted in Section 2 of Rep At No. S42 could nok eves tle inven of te provision that prewar Jobe oh hot be due and semanatie fora pened of ent tp Years frm and afer he sterner te ar demge Gains ofthe dettar by te United Slate Panes War Damage Commission The other se Ue the debtors were not ren requires to pay intercet cary the operation ofthe moratorium Z ‘Tins, the Courtheld that “the hope ofthe creditors lo effect collection becomes extremely remote” aiid while the state “may postpone the enforcement of the obligation fon the basis of its police power! it cannot Gestroy the obligation by making the remedy futle "The Court in effect was saying thal an adequate remedy should have becn provided in the statute the prin Pleof ub injuria bi remectum. In the end. the Suprere Court held Republic Act No. 342 null ang vata notwith, standing its initial ruling that the atatute in question was constitutional. In doing'so, the Supreme Court made an unmistakable appeal to the precepts of the natural law. Said the Court on this point: ‘And consistent with what we believe tobe the only comrse dictated by justice. falmess ‘and righteousness we feel that the only way ‘open to us under the present circumstances is to declare that Uie continued operation and enforcement of Republic Act No. 242 at the present time is unreasonable arid oppressive,Leu. Prmasorir Dberoouenon 6, i GUT WGK Be POLS GET A IANS TONGA nd, therefore, the same showld be declared {null and voId and without effect. ‘To tie legal positivists it Is unthinkable that an otherwise constitutional statute could stil be nullified and voided. But itis clear that the Court expunged the ». stahate in question from the statute books, The Court ‘emphatically held that the samse|Republic Act No. 342] should be declared ma and void and without effect. ‘The side question is whether the Supreme Court could not have anived at the same recult by the ‘application of same superpositive law doctrine. €.g. substantive due process, without having to rule an otherwise eonstitutional statute mull and void on ihe Dass ofthe suprapositive precepts of the natural law ‘The Fecord of the case daes not showthat the case was, ‘analyzed on this basis. But ifthe Court had done eo it ‘would have entaled a contradiction in approach, Thus, ‘the Court ise said thatthe only way open to it was to declare an otherwise constitutional statute nul) and vold on the basis of the eupraposiive precepts of the natural law Aeite raercse una. emedate Appetite cai imoied a confit betwen postive ean ‘gl law Juste etc. Mahasian, who Ted a Gleeting opinion srnghy charged the maj ot roeneny sictachung stove inseuagede awl oeecuton, whit vas leglytsved tote: sre fal got vaving te penal uot of Teyeared hl on te anf hat ne eal toe Setilous concep faerang the end ease. "The material facts chow that peutioner Luna had ‘an legitimate daughter, respondent. Maria Lourdes, ‘She tharvied er éonrespardent Salumbides and they begot Shirley. About four months after Shirley's birth, the respondents gave Shirley to the ehildlese petition fers wha were blest with considerable means, The pett- oners doted on Shiley apd brought her up ae their very own according to thei ife style. When Shirley was bout five yeara old, the petitioners deciced to go on a pleasure tmp abroad, They asked the respondents for their written consent in order to seoure a travel isa for ‘Shinley. The respondents refused and the petitioners had to proceed with thelr travel plans without Shirley. whom they left with the respoiidents while.they were away. Upon the return ofthe petitioners, the respond ents refused to give Shirley back to che petitioners. And, thereafter. the respondents ne fonger took the child t the petitioners nat even fora visit A potition forhabeas corpus filed by the petitioners sn theciower court sueseeded and they were awarded custody of the dild. But this decision was reversed by the Intermediate Appellate Court.A'petition fled by the petitioners in the Supreme Court failed. Upon finality of ‘he judgment, the case was remanded to the trial court Jor execution ofjudgment. This was vigorously opposed by the petitioners on the ground thal supervening events and circumstances, namely, the subsequent emotional, payehological, and physiological distur ‘bances sulered by Shirley (who by this time was nine years old), would inake the executlon of the judgment Prejudicial 20 the welfare. and best interest of the ‘chilg. The ‘ylal court scheduled a hearing on the matter. It was during this stage ofthe proceeding that Shirley manifested in court that her own parents were cruel to her, that'she did not believe that they Feally loved her, and that ifshe were foreed ta stay with them she would either escape or kill herself. A psychologist4 Leow Pmesori ner TrgIngSs: SaIey as Indeed grownmoreembittered, cautious, anddistrastful of her pw parent, and that Shirley weuld Be very ‘unhappy she wereorderedto tay wiinthem. Even so. ‘etal Judge dented petitoners' motion and isoued the writ of exceutlon. The pelluoners fled with the Intermediate Appalate Court @ petition. or certerart and prohibiuon with preliminary injunction asking thet the writ of excculion be stayed permanendy. This was denied and the petdonere went to Ove Supreme {Couet for vei Jysice Hermogenes Concepsion, speaking forthe ‘Supreme Court, did not deny the positive law on the ‘ministerial function ofa lower court in the execution of ‘judgment of a higher court. But the Cou felt that it could still brush aside the legal rule on exeeution of Judgment wher necessary to prevent injustice. In Unis ‘case, the Supreme Court held that there were indeed supervening events and eircumstances justifying the Gancellation of the valid writ of execution. In brushing fside she positire law on execution of judgment, es {ody 8f children, and parental authority, the Supreme Courtnade an unmistckable appeal tothe precepts of ‘he natural Jaw. Itis noteworthy that even Justice Makastar adimit- ‘ted tris dissenting opinion that the poaitive lew on. parent-child relationship "ean be disturbed for strong, ‘and compelling reasens but only upon a dear showing of either gross misconduct or unfitness en the part of the pients, or other extraordinary circumstances and events affecting the welfare of the child." But its this “extragrdinary circumstances and events” that the ‘majority opinion precisely used in striking down an ‘otherijse legal writ of execution of a final judgment of the court. The Supreme Court held that there are & Ineoouereas 63 TT COR PRET Tor perma staying the Writ of execution issued by the lower court ‘The Supreme Court held thatthe implementation o! the judgment ordering the eustody ofthe child in fevor of the parents would be.prejudiisl, unjust, unfair, and inequitable” to the child and would "cause irreparable damage to the welfare and best interest ofthe child, Justice: Concepeion stressed one final point in Pursuing the court's appeal to the postulates of the patural law. Justice Concepcion emphasized Shirley's ‘maniestation made in the tris} court thet she would either escape from her parents or even bull hersell Should she be forced to stay wlth them, which she rolterated twice in wating to the members of the Su preme Court. For Justlee Concepeion, Shitley’s man! festation “may appear empty to same but what ff the treat is for real!” ‘The lege! positiists, however, advance certain reagons for disagreeing with the regulatory use of the aturallaw. The frst isthat thenattrallawisnot apart of the legal system. It is merely “the virgin gold of the ‘ine... unlike pesitivelart whieh is eased, reduced to order. and putin the shape of rules, the eain in the ‘int, vith its value ascertained and fered." Thus, to ‘eat the natural Jaw olherwise would make ft antago nistic (o the sovereign power of the collective bedy politic. Whether a statuée can be set aside ag null and void by means of the natural law precepts is a policy ‘matter which falls within the exclusive competence of the body politic. Unless there isan unmistakable policy expression on the matter in the constitution with clear snd proper parameters, courts may not use it nthe Danco Magett, 26 Tes App. 285ad . Leon Prsceoniy Tegal ordering of society “The sepond ground is that te natural law has no place tt politically organized society where there is ne Paftieins established religion." Itmakesa great deal Ef difference which body ina politically organized Society/hae the power to discover and apply the natural law, Not only doesit have the hazard ofspeculativeness Dut ithas slso the added danger of discounting the “ttustion that ne society i large enough to contain 70 ‘competing foreee without serious consequences on the people themselves. “ethic ertcam against te regulatory wa ofthe satuellnwisthatit eathetical toa goodiegl erder. For stoped of ts attroct tapings, aavences the tana hat epslatve enactments canbe ejadeed tee Eau bytneconstnton Second erenifeosetatonal but alegely bad orev, by the natural lw. When cts cet oases Benue a ren erogaton of clearly matked consttional bounta- ch Cutsem nese paacaprined an teecpnsee bythe people emacs mth consi Sin mut wha sorts Geciar statutes sa vegltsons tl ant youd on te ground tna hey are gaint te ator! am, ouch courts consi en exe views ies as towhat te precepts cf ntralinw ean, solunger the meaning othe conto. nao lng. Sut actully orate polices whieh tm awelkordered Seeley. i the prerogative and responsiblity of the Srersign boty" pole rigated to ther legislative ‘i 2parrescon, BIN Law a Narva Rc, 4 Sow era Mejnocat Unversity Studies tn Junepradenee, SMU Press Sater! Irnoaveren 5. ‘vepreventatives Thus, when Courls mvalidate slat ‘utes on the basis ofthe precepts ofthe natural law, they ‘embark on a juciclal phulesophy unlimited by any fied Standard. And if courts are able tado this, then, they ‘could also bring to test and invalidate even the prov sions ofthe constitution by meansolthe preceptsof the nalurel lai. AS one writer said, “itis not inconceivable ‘iat this could end im a judictal coup d'etat” Followed fo its logical conclusion, courts ean decide which statutes are in accordance with the natural law and ‘which are not, regardless ofthe Issue of constitutions! tty. This, no doubt, poses a grave danger for constitu tional democracy. ‘Avery early isappribation ofthe rigulatory use of the natural law appears in the decision penned by ‘Justice Iredell of the United States Supreme Court in the eeminal case of Calder v, Bull! unfortunately known only to studests of law for the parameters of an ex post jacto law. But in the said ease, Justice Iredell also expressed the Court's view that Its true that some speculative juriats haveheld that legislative act against natural Jaw mastitselfbe void, but eannet think that under a democratic system off government any court ef Justice would possess a posver to be within the intention of the legislature. For an lls. ‘ration, Jet us take.a statute enabling testators 0 pass their properties to thelr heir or legaices ai deat, No doubt it is the Intention of the legislature that the heirs or legatees instituted ih avillor testament shout hhave the property transferred to them as soon as oostble. But whatifan helr kills the testator to prevent the latter from revoking the vall and enter into his Inheritance sooner. The testator is dead, the will Is in due form. Obviously, an heir who lil the testator to ‘set the wil or festament in operation while within the 118s est corectitetsgenerater nae qua pantdefet B. Haaoos ew Cosrmcren so ttc rims, 62 West Publshing Go St Paul Mine+68 Leos. Prnosortr Iberpuemon 68 ‘etter of Wie wtate is hat, Roweves, wip Re SphiCor purpose"? ‘This situation could never have been the intention and puxpose of the legislatore.!1® ‘The second use ofthe natural law theory in stata: tory construction or interpretation arises wien a par ticular situation or condition apparently not within the ‘words ofa statute je nonetheless within tsessence and purpose. This is signified in the equally familiar ole of statutory interpretation that thingwhichis within the Intention of the makers ofa stetute is as much within the statute as if it were within the leter. To sustrate. Jet us assume that @ statute was passed grenting ‘compensation to any parent or child who at the time of an ensployee's injury Is dependent on the earings of ‘such employee. it was no doubt the fitention or pur= ‘pose of the legislature in enacting each a statute to lessen as much and as quiekdy a8 possible the impact ‘and hardship of the death of or injury tothe breadwin= nner. fi was also the intention of the legislature to establish a rule whereby unwed mothers, for instance, fare made the legitimate parents and heirs of their, Assues, The mother of an Mlegitimate son whe died or ‘was Injured in the course of employment. while apparently not within the words of the statute—since ‘Une common acceptance ofthe word "parent ia denotive Wiggs v Petme, 115 NY. 508, 29.188, 8p the Raps ease, the Court stste ta tg comand in the Beeston no work sali te dane son theca od {tghng the command aratonal iterpecation funded or tage ‘penis design Intent ara purpse) rented ned et ‘tanotpromtscworisclacersty, chat orbenevolenceon at OF legitimate velationship—s, aa doubt, within the spirit or puspose ofthe statute? ‘Thus, statutes have been restrained or extended by the application of natural law. . Mora Li ‘This tg the third type of nonjural law. It is not similar to divine law of to natural lave. Moret order ‘At some eatly stage of its extatence. a group of ‘people learned that the determination of what behavior ‘is good or bad and what conduct is commendable or cefisurable was not le to each individual member of ‘the group. twas early recognized that ifeach person ‘were sllowed to form such a standard! according ta her for his own individual perception ‘or understanding disorder would soon follow, Thus, the people began te Yecognize and secept the same reasonable and desi, able. conclusions growing out of the same collie experiences. Undoubicdly, this entailed a great eal of waste but each successful experience was also pres ‘served along with others. These were considered good fand exemplary and, hence, obedience to them wes Gemanded by the group itself. In some stich masiner ‘certain moral attitudes became the predominant order of the communal life and herlzontal solidarity (2) Moral Norms ‘Moral norms are patterns of good and exemplary MOwarstt, Insel Commietn, $42, 400.178 NE,70 Lesa, Paosorier ‘conduch which get the thoral tone oF feeling of the community. They determine what conduct o behavior ay ormay not bellowed or What acts may or may not be done. They are the aggregate ethics ef the comma ait Mot) nerins are applied by presentbing or spos ing upgh the merabera of the communtty certain def. thte palterns of behavior. People obey or avoid trans [pressing meral norms because ofcogent psychological And material factors ® When moral norms are disze~ garded or disobeyed there is 2 spontancous social . Feprobetion. The soeial cengure may take the form of publi¢ abandonment or ostraciem, or some form of Eetaal punishment. On the other hand, social appro- ations manifested without constraints when there is conforinity with moral norms, The sosisl commends tion may be in Bie form of publi preferment, puble fcinowledgment, public endorsement, orsome form 0! sotual reward ‘oral norms are positive and peremptory. AN example is the moral norin that spouses must be fitful to each other. [e15 inconceivable hat this particular orm, based at once on the precept of good nd sight concuet, wil be changed or retarded elther how or in the future, Moral norms are not zelative, ‘advisory, or customary Because they are not subject {0 passing desires oF opinions.11 If stealing and 220 user ets another ype of anton veh Mesa ss vey ee a cle the ese sanction” Tis mean the Solon bee raped one woe spe eee tb 4S cnee Te Ba a Lege Eauclen, 28 America Bar Sesion Jornal $28 Inmoouenion n gambling are customary to a group of people. would that make greed and covetousness right or good? (3) Moral Law and Other Disetptines Viewed froth this observation post, moral law may bbe said to resemble divine law aid natural law. But ‘moral jaw 58 not exactly similar to thet, Divine law in the strict sense is the law of Feligious Faith, Mora} law, ‘while also concerned with the precepts of geodand right conduct as the basis of ts arms, ls not necessarily concerned with the law of religious faith, For a person may not be religious and Stil be ethical. And while ‘moral law appears to be akin tothe natural law in that ‘hey apply equally toll persons everywhere yet the two Glsciplines are not precisely Identical, Moral law te ethical In foundation while the natural law is strictly ‘metephysical ‘More! iw alffers also from physical law. Thelatter, which will be digeussed'in the next subsection, is the totality of untformities and orders of sequence which ‘combine together to govern physical phenomena, And ‘moral law differs from juraliaw insofar as enforcement, fe concerned. While jural law 1s enforeeable in the courts, moral law is enforeed only by indefinite author- ity for there are np courts in which itis administered as euch, But a8 already stated it does not lack effective sanctions, (4) Moral and Social Norms Moral norms are distinguished from eocial norms, In every people united in some form of society there are \wanls, thal stosay expectations, claimsand demands, Which are naturally different from one another; In the Interaction ofthese diferent wants there arises certast,m Loa. Panesoriy ‘Sobeptablg conventions oF customary practices, Thus, social norms deal with objective conduct only. ‘Porthermore, they are really a matter of unpredictable times, ckle usages and changing eircamstances. The facts that actual valuations in social vingare diverse atdiffefant times and places. For example the Dumagat ‘women inthe highlands of the Province of Rizal in the Philippines and the women of the Island of Bali in Indonesia have, been going about thelr dally tasks devoid af clothing above the waist. This pass unnoticed ‘ma society still abstuated tot. It does not give rise 10 rurieit thoughts and actions. ‘Social rules may even vary with each ethnte group ofa particular class of people, ‘What's socially allowed ‘mone part ofa country may not be so in another part of the same country. The practice of polygamy tn the ‘Muslimjareasin the Philippinesis aconvenientilustra ‘on, Under Muslim persons and family relations la. ‘a Muslin man can have as many as four wives, provided that: Ihe bas filed a wnitien notice of is intention with the court where hig family resides, and 9) the bueband can give all his wives equal companionship and support them and their dependent children ac: cording to his sovial standing. Under the Muslim Law (Sharia) found in the Qur'an and the Hadith of Muhafimad, the admissible grounds for taking an- otheriife are infertility. msanity, physical disabihity. or refusal of the present wile or vives to have sexual ‘elation with the husband. Sola rates may even change fo the same ethnic troup at the same place at diferent tines. What is Eccially prescribed at one time may be proserbed at another ime JamesJean aptly stated that"vrtucsand ‘oes have frequently changed places as Ife moves 73 ‘ages. 77 Social rules may prohibit some {hing at one time and permit it at another time and vice versa. The Dumagatand Balinese wornen atthe present lime, either through outside contact or efforts of vell- sinus miseionaries, are beginning to put on something Sbove their waists. In time, they will have completely ‘changed their outlook on what they belleve to be ‘socially permitted regarding apparel A complete sudy 6f moral law properly belongs to ethics, D. Presical Law ‘This Is the fourth type af nonjural law. Ie also known as the law of nature. But the use of this term is Somewhat ambiguous for it also denotes of refers to ther types of nan)ural law. Nature and.attsibutes In the flawless course and operation of the physical world, there are crders of sequence and uni- form relations between. things and objects. These are the physical phenomena that both human beings and ‘Sumb creatures feel and sense. As a whole, they are Jxnown ae physical law. These wniformities and orders fof sequence are gonstant and regular so much so that they are completely depended upon with confidence and belie. “The characteristic lements or attributes of physt- “cal laware imperativeness and regularity, Physical laws are imperative because they are fixed and unbreakable, 122mg Praseonies 110, Sinan and Shaster Publishing Hire, New orkmw Leon. Phivesoety Forinstance. a personjunpingout orawindow wnt, ‘by huzasell alone, land an the roof of the building. It is feed thal he wil fall to the ground, Or, for ancther example: two-atoms af hydrogen and one atom of oxygen Jn chemical combination will always form a molecule ofwater, ora molecule of heavy water if were {10 atoms of heavy hydrogen and one atom of oxygen. Physical lawearealsoregular because theres no break 1m theig sequence or constancy. The person in the example given above cannot after jumping out of the window arrest his fall or suspend himself in mid-air somewhere between the window sil and the ground, Neither will two atoms of hydrogen and one atom of ‘owygen chemically unite to form a molecule other then 2) Disc: Physicallaw should netherbe confused norequated with the norris of physical law as these are stated by thelr discoverers, The latter are merely generatzed descriptions of abserved facts. To tlustrate, the phys cal lasof gravity contained in the Newtonian system ‘and the physical law of eleetromagnetism contained in the Binsteinian ayetem, im whieh all motions are ex- planed:by the law of universal gravitation and electro- magnetism, are not physical laws prescribed by Isane Newton and Abert Einstein, respectively. To be sure, these physical laws have been in existence from thevery beginning, Particles have been, and wsllcantinue tobe, held wether by-nuclear forces to form, atoms. And toms have been, and will continue tobe, held together byelestical forces toformmolecules. And larger bodies have been, and willeontinueto be, held together chiefly by gravitation. Newton and Binstcin merely discovered the maus operandi of these physical laws and formu- lated the statements ofthese primordial or fundamen- fed Norms Inenogueneie , 78 tet forces oF nstove: Duero THE ROMS of Physical awasstated by thelr discoverers are generalize Dropositions or statements of observed phencmens concerning erdér and regularity in the happening of certain natural or physical events, (3) Distinguished from Jural Law Since physica law Is imperative and regular, ts norms can be euced and orkid out inmaticratcl equations. Tis is something that cannot be proper dane In case of the norms of Jurl law boeeuse Sach norms are either preseniptors of proscipions. Be. Stes the oe raw ep for tt fain "ipch human voiton or wil wile the norme ef ar cal lawy operate mevitably independent ofthe human ‘wl ts the element of human valton or the wil ‘obey or dlacbey that ls variable and indefinite tm the legaloréeringfacommuity An individual quteotten overacts oF forears in eomplying with tome Tegal preseription orprohtition, moter less clearly defines (4) Distinguished from Divine Law Physical law is not exactly divine law. Physica! law may, however, be considered divine in the sense that it fs ordained by God forthe course and operation of the cosmos or universe. To put the matter differently, divine law in the genera sensets similar to physieal law! But this sas far as the similarity goes, for divine layin the slit sense Is not the same as physteal law. The former s the law of religious faitTHE HISTORICAL PERSPECTIVE fist Peepecive a a Starting Pmt ‘stra Bement in the Law Historical View Limited in Scope Nature fhe Law Dh 'THe Oblast People B Tae Pansout ty Folore 1) Faltsoying “Gatos {3 Folcong (5 Patdnnee (8) Paar 98. afe ofthe Law 10. Basic Points of Historical Jurisprudence AL Slate and Folksoul B. Law Not Delberately Made 11. Siinilanty of Different Legal Orders A Historical Reason B. Jurisprdentia) Reason, 12, Value af Historical Perspective |, 8: HISTORICAL PERSPECTIVE AS “ASTARTING POINT, Although ihe historical school of jurisprudence f= preceded by the teleological schoo! of jurispradence, there are good reasons for starting with the historical ‘approich to the study of the nature of the law, * 8 ‘The frst isthe baste ttstf of te perepectve of the historical school of jurisprudence, Freidrich Karl ven Savigny 1779-1861]! held thatthe law proceeds from the votksgetst. For Savigny, the concept of the eoul and spirit of the people (diwayar) provides the sene of beginning and unfolding of the law ‘The other reason is the renaissance of the natural Jaw theory. which is the comerstone of the house of {eleological jurisprudence. The concept of the natural law has again attracted the altention-of legal philoso- phers and jurisprudents.? Conversely, the concept of ‘he falksul has Jost a good deal ofits appeal to many. legal philosophers and jurisprudents.> ‘The ideas of ‘soul” and “epinit” are now rarely used in the works of modern philosophers, iat all, these deasare generally used to mean a high degree of inteligence, whieh they. call “minded action Indeed, modern Jurisprudents hnave ceased to consider or t9 pursue the historical perspective asto thenature ofthelaw, Professor Julius ‘Stone. fr example, has even abandoned the category of historical urispradence in his work.+ Stone feels that the historical perspective ofthe natureof the laws only. a chapter in the development of law in.society.® How: TGeman satan, juneprudent and fet rector of the Unie of Bein, a Pr. Te MovenentTosardNatralLaioJurispracence, 49 aseneo Untaaty law dournal, 1; Fauna, Ree The Res @f Returgl aun 17 Nee Basse Layee 29, ‘Spront” SE. de. records that in a published readings in rmader piosephy there wo menion at allt the eoneept el the Faouit Baas Paces ot Guar Prasucntss Garden Gly Puts Haning Co, New York bacon Funchon of Law, asocited General Publ stings, Lely Spang. Asta. Bi 388-0078 Lec Patasoeie Husronea: Persrecrve 9 ‘Grek. Hig by no means suggested hat the historical view cf the nature of the law hee lot ite valle too. Its til sell in the evaltion ofthe legal development of @ ration especialy its legal history.® 6. HISTORICAL ELEMENT IN THE LAW. ta commonplace that people have lived together fas & group, whatever the reason and wherever the place, But due to the mevitable canflict of wants some king ofsocial order evolved in order to set or hatro- nize conflicting or overlapping interests It fg not easy to say how this social erder was established. It is very probable that it was based on Some réeurring decisions or adjustments afeoncts of {nterests. in some much manner. the ways off ofthe ppeoplemere developed and passed an from generation to genetation. In ume; a body of precepts crystallized, “The preceots definngrules ofacuionwere classified and “ith theevolution of some orm ofgovernment served as ‘the beginning of the legal order. ‘The advances in the ‘oval dtd politica} ie of the people continued until the ppeopledeveloped intoa body politic, weldrd together by ‘comimeti centers ofinterests and purpodes towhieh the ‘people'Submilled themselves with one accord ‘The presenée of the historical element in the law 4s thus manifested bj at least two important marks: 3) the changes in the social existence of the peaple. and 12} the progressive conditions of their politico legal Gevelofinent. These historical facts are unaveidable ‘and are sill In progress, although they may not have ror example, Execute Ores No, 27 (104) whieh created Cote Comuision, ‘been unintermapted. Thus, for the historieal school of Jurisprudence, the nature of the law and is con ‘commitant problems cannot be understood without reference to, or appreciation of, the socio-political phenomenon in which the lw has grown, For histor cal jurisprudence, the law could not have thrived ‘except in this environment. ‘7, HISTORICAL VIEW LIMITED TN SCOPE For historical jurisprudence, the law, lke a people's language, manners and other social character- Istics, is pecultsr toa group of people. It is indigenous. fs the flora and fauna of the country of that people.” ‘Thus, historteal jurisprudence accepts the idea that what is peculiar toa group of people is not necessary true for another group ofpeople.® Each group of people has ite own folksoul persisting frem generation te generation.® From this observation post, then. of historieal Jurisprudence the law is not universs] in ‘scope. It Is only national in character, that Is to say ‘conservatively oriented tothe time, place and indivi. ality of a particular group of people. 8, NATURE OF THE LAW Karl Freidrich von Savigny enunciated historical Jurispridence in his work entitled On the Vocation of (Our Times for Legislation and Jurisprudence. In this publication. Savighy vigorously epposed the plan of Taiutn, CH, Low wre Moe, 44, Fourth Baton, Oxford UUnweghy Presa dandon Scns le, Ove Voomov or Our TwesronLzosin a2 Samii. Re, Fundamental erences Madr Jute donee, 21 Mleigan Low Reon, 646 "0 . ‘Lease Pastogomnr ‘rofesdér Anton Breirch Justine Thibaut to codify the ‘il laws of the various Germanie provinces an the basisofthe prineiplesofRoman Law. Professor Thibaut ‘advanced his propocal in an article entitled On the Necessity of a Common’ Law for All Germany, In this ‘work, Professor Thibaut elted the suecesefsl applica: ton of the Roman Lave principles in the French Cade Mapoleon. Thibaut fet strongly that the French expe- rence could also happen in the codification of the civil laws of the diferent Germanic provinces. In this famous debate,10 Savigay argued vigorously that ‘Thibaut’s proposal was an affront to the German olksgelst. Savigny insisted that the tise of the tad ‘onal legal materials ofa people isthe better approach. to the task of coification and lawmaking rather than the use of an alien legal system. Inidetermining the derivation of tfc law, Savigny ireofed attention towacd its seecbed.-In the words of Henry Sumner Maine (1822-1888), the acknowledged Jeadetof historia jurisprudence tn England, “the law fe the’produet of the huge mass of beliefs, opinions, prejudices, and even superstitions ofa people produced by tnstintions of human nature reacting one upon snother-"!? But the seeded of the law given by Maine ‘snot uite adequate to explain the diferent treasuries ofthe folkeoul and, henee, incomplete to cantain the jucal and nonjural materials of a group of people. In ther words, i falls to take into account the other vital, aspects of the national character and genlus of a peoples Indeed, Maine explains only the existence of two ofthe many treasuries ofthe folksout 1Wiman, KM Histor! Scho Agabnt Cofaten, 27 erga dour ef Conparaive Law, “we tS Han Heron or Isao, SED. Henry Hole eco Nea Yen Hisroment Pessreorve ar ‘A. Te Onuunacs or « Peome hte moman Deings have the estin’ faculty form ideas snd concept, they needed lng a8 a mneuns of communiesting thelr pesceptons to pers For this human beings age well Squiped. And hs ehicved inguage tty began to arcuate theme Setveo by mense 8 Oe opisons, belt ngage, Sages, atone Wiosyntacse, rt easoms oe Supersitons. This huge mass of chluzcs reveal the atonal iden, character and gentue ot people ‘Together they form the commen eonselousness sd Intetigents of the people 1Lis not easy to say when the national character and intelligence ofa group of people frst emerged and under what conditions they Nourished. All that can be done sn Uhis regard is to have a feel for this paint in the people's existence and evaluate ite significance on the legal order. This, ofcourse, isnoteapable ofimmediate proof. But it ean be assumed that each group of people has its own common consetousnese about its nadonal identity and character. For hletorieal jurisprudence this hypothests brings some degres of coherence into an olherwise gray area about the emergence of ihe bolksgeist or alwoayan. B. The Fousou, ‘The folksoul (Aiuayan! fs composed of several elements, each element a treasury of the national Ideniity. character and gentus ofa people. While these elements belong to the folksoul they are distinct from) ‘one another.a2 () Folktore In Gils treasury are deposited the beliefs and Uraditions of @ group af people, These belief and Uraditiche, which are unrelated to belles lettres, consti- tute the fol learning or folk wisdom handed down from _generatfon togeneration in substantially thesameform, ‘and cohtent. It is the national confidence and faith ‘which the people needed for their common welfare and survival. That fs why beliefs and tracitions have been, called lore~ the leacring ofthe people: This element of te foligoulss carried by Naine Jeavingjusttheee in his classification Folklore may survive in the form of epic tales. A ‘good exernple in the Philippines 4s the epte of baion, ‘hich isan ancient tale of the Bicolon region during the reign of Handon, It tells of the emergence of the Bicolanos from seattered groups fo an agricultural community where a mode of system of governance was practiced. Therearecther examples, Ukethe Indirapatra ‘whieh i the epic tale ofthe Muslims of Lake Lanse: the Biag riLarang, the epic tale ofthe locano region: the ‘Tuwaang of the Bagobos of Davao: the Maragias of Paninipay Pan-ay] where Datu Sumaimel’s cade of Jas is found antedating the English Magna Carta by almost a century and showing the aptitude forlaw and order of the people who ected in Panay. In'this treasury of the folksoul is alo forind the tales of bravery ana sacrifices of the people and their heroes, This is the reason why a group af people fs Indeed characteriaed, among other distinctsons, by a commarality of herees. ‘Buta great deal of a people's beliefs and traditions ‘eppear in the form of parables (talhaga) and riddles Uisrofica, Pesseecrve 8 (bugtons), which are draw from the experiences and experiments of the people that have been accepted to De ‘good for theif welfare. An example of an old belief (pantwala) about the poner of an idea or thought 1s ‘expresged in the following bugtong:. “Walang pintong pinasukan figunit nakapasokedin sa kaloob-ogbar.” A free translation is: Nodoor was there for ito enter but ‘somehow straightinsideitdid getin.” Anotherexaraple ofan old tradstion (pantiweaia) about the authority of the chieftain or head of a barangay is strikingly expressed as follows: “Ang pafg-ulo ay nasa sa tbabaw at latin ‘ig bates.” “Transfated it means that the head or chieftain ts bath above and under the mules and regt- ladons of the people. 2) Foikeaying This treasury of the folksoul is composed of the ‘opinions of the people. ‘These apinions are stronger than meré.impressions. They are expressions or an nouncements of orders and policies whien the mer bers of the community are expected to follow. ‘The opinions ofthe people may appear in the form ‘of maxims and sentiments. maxim iss short or terse staterrient containing general ruth or a ineless rule of conduct, A sentiment is a settled sense. view or disposition colored by feeling, This clement of the folksoul is carried by Maine leaving just two in his classification, Fotksayings are ether soctal or jural in nature, ‘Those that are social in character inchade, homely admonitions. advices about practical living, instruc Hons im good manners, and moral statements. There are many Filipino maxims (sawtkain) and sentiments (sab0 containing the social feelings of the people. Oneea Lesh Prosar Js: “Mabutt na arg mamatay na malinis eng budhi/ Kaysa mabuhay na parang pusall” A free translation Ig: lis better todie with a lean conscience chan tolive ‘in corruption. another exampleof a maxim containing the social feeling of the people s: “Pag-aasawa'y dt bire/ Karin bagang isusubo't tulsa kung mapaso.” A direct tranelation is: Marriage is a serious ep to take/ This notlike taking food which one ean drop when it bums the mouth, Sill another example is; “Kumindat ‘sa dit.” ‘Tanslated st means to wink in the dark. Sinée darkmess hides all gestures, this aphorism signt- fies the fuliily of certain efforts or uselessness of certain actions. For still another example. “Maglubic hg buhafigin.” Translated it means making rope out of send. Since this is an impossible task to do, this ‘sentimentemphasizes the height of futle struggle. One last example expressive ofthe social sentiment of the people ge "Kung matntt arg kalan /Huwag hipuin rg dt tna masgictan.” Itmeans aveiding situations that may ‘be harsnial ‘These are folksayings that are jural in nature, An example is: “Aig mag-asawa sa ariarian ay tsa. Freely translated it says that husband and wifehaveno separate property. It contains a consclous.policy of ‘absolute community of property.12 This system of [property relationship between spouses 1s now embod. 4ed in the positive law of the Phiippines.}® Another ‘example of a folksaying which 1s jural in nature ts: “Huiweg kang pumasok sa bakuraninoman Ag huwag kang masaleupan.” Translated it says do not enter the premises of another if you do not wish to be under hie gayay arm Cove Cows ene Poste Cm Ct ‘re ype 8, Bureau of Png aril Wises 105 wo 21, Ci Code ofthe Fhipnes: Chapter ‘rue Fam Cod fine Papp, Hisromca. Pesseeorve 85, ‘control. This s afolksaying that has been expressed in positive law dealing with the ownership ofa landowner ‘of the fruits naturally falling from the reee belonging to fan adjacent landowner.‘* It is also expressed in positive law in the form of @ right to demand that the branches of a tree extending or spreading aver one's property, garden oryard be cut eff and ifit be the roots (of a neighboring tree snthin his progerty the right to cut tem off himsell® Another example of a folksaying whieh is jural in nature ts: “Daig ig maagep arg masipag.” Freely translated it says that a busy person. ‘s nothing compared toone who immediately takes care offs interests. This finds expression in positive law in the provision that when the same movable property is sole to different persons the ownership thereof vests in the venéee who first takes possession in good faith. If i be immovable property, then ownership thereof is ‘acquired by the vendee who n good faith first recorded the sale in the registy of deeds where the property 1s situated, But if there js no registration, then the property goes to the vendee who in goad faith was first tn possession, and in tts:absence to the vendee who presents the oldest ttle acquired in good faith.10 (3) Fotkway ‘This is the third treasury.of the common con sotousness and rational character ofa people, Accord {ng to Professor Georg Predrich Puchta (1798-1846), a tlistingulshed stucent of Savigny, Zollovays are com posed ofeustems and sages of the people which make them reliable expressions of the follecul? ‘anil 6, Chl Code of he Patines Spoil 640, Cell Cade of he Palippines, 2earucle 1544, Con Code of the Pipes Vnvewa, .. Ootngs of Junarmogice. 9B. Hastie Trans ion, Eaieborough Press Linco,Customs and usages are widespread ways and practices which have evolved openlyeut ofthe reactions of the peopl to the same demands, challenges and ‘situations. The first uses of folkways were to aid en the environment in which the people have found them= ‘selves. They were enforced by social sanctions. Itis at this point that lollways afer from habits. There arene ‘sanctions to enforce habits even though they may arise ‘oul of the reactions of individuals to reeurring chal- Jenges and needs. Of course, If habits are both ‘widespread and rational, then, they may become cus tomany with the people ‘Thue, floras, ike flkesyings provided the frst sources fo the lw Mary questions and problems invoking pesceandorder inthe commanty were sove8 fn tebans ofthe follways. Since they exst ina soctal Contest. tee compslaie natore is aceable to theie soci significance nd inhuence in tie communtiy, To put ihe in another way, dhe obligatory nature ofthe Entogys stems from the deep-seated desite of the Inenilers ofthe sommunity to keep the respect and ices of the emmmunity By uphelling te feieays. “hon, may be aia that Ce sanstonestasies to te fningysare both intenal an extemal. Feiwaye ave fase phased the tests fie an esi. And isd to thisphenorenon that they have survived as exlinoe hon of activity and conduet. This weasury of tbe foggy is ot inches fn Maine's clasiseation here are many storied Filipino folkways twaigatan. Like flksayings, fbvays are social in snatuze while others are jursl Of the former, ene that has survived to the present day lgauseegin, which, diretly translated, Is courtship bylooking, It is ‘gusint and romantic practice (aga especially tn the ‘isroma, Persrecrvs 87 ruralareas. At this stage ofthe courtship, theman does nottalkcatallwith the gle, His eyes, however, follow her ‘every move. Almost from the beginning, the girl (s ‘gpnscious of this romantic interest but she, too, does ‘Rot talk with hum, although she may return glance for ‘ance. The suit becomes formal when the man calls on the gir in the presence of her parents or guardian, ‘There are many folkways that have been Incorporated the positivelaw of the Philippines. Oniy a few can be considered here to serve as illustrations, Oné Is the fotkway of pagmamaguiane. Roughly translated this means parenthood. This refers to the exereise of Joint parental authority over the common, children of the parents. This folkway Is expreased in positive law in the Philippines.1® This is quite different from the provision af the Cyvil Code of Spain which was applied in the Philippines unt 1949. Under Spanish Jw, parental authority is exercised by the father and in this default by the mother. Another folkway is the tupon ‘sanggunitan. This advisory body exercises a great deal finfltence over matters invelving the family. Until the effectivity of the Family Codeof the Philippines in 1987, this body was expressly recognized in the Civil Code of the Philippines.!® Another folkway Js the system of maybahay, The word maybahay i contraction of te phrase “may ariig bahay.” Not vesy long ago, when husband introduces his wife we someone he says, “Sly fg aking maybahay.” There is no equivalent word in English for riqybahay, This follway pertains to the ‘Saale 311, Chl Code of the Phipps 19pruetes 252-254, Cl Code ofthe Piiplnes88 7 Lean Pravosorty “management of the household affairs by hewife. This - folkway yas also expressedin Philippine postive law 20 Another follovay is the Tagalog bigay-kaya. the locang:sab-ong, the Visayan bugay. ‘This foliway Is &

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