INTRODUCTION TO LAW - AUFSOL

, M. / Quiambao, T. / Rojo, K.
LAW IN GENERAL:
Law
-

a dynamic force for maintaining social

order and preventing chaos in society; not
a body of static rules to be obeyed but one
that is a dynamic process by which rules
are constantly being adopted and changed
to fit the current problems of our evolving
society.
- binding and enforceable rule in a society
- piece of legislation Executive: execution
and
implementation;
Legislative

enactment; Judiciary resolve actual

cases and controversies; interpretation and
application of laws
- legal system ( legal body or system of
rules: Civil law obligation and sales ;
taxation law)
- -Authority- no one is above the law (ex.
Police or law enforcers)
- -branch of knowledge concerned with
certain rules; a certain kind of law (ex. Law
that is legal)
Characteristics of law:
1. rule of conduct
2. Promulgated by authority
3. Obligatory
4. Of general observance
Common understanding of law
1. Legislation
2. Something laid down and fixed
Ash could be law; foundation; origin of the
word law derived form the norse root lagu
3. A rule something that prescribes;
normative what should be followed by society
(ex. Thou shall not kill)
Minimum requirements of a legal order

1.

2.
3.

Provides for authorization and recognition

of legitimate authority. (law is enforceable
by an authority)
Provides means of resolving disputes
Provides mechanisms for facilitating
interpersonal relationships (new law =
committee; administrative agency)
*Reason of the law: prosperity; peaceful,
social order ,etc
*Philippines Issue: lack of people
enforcing laws

Validity vs. Efficacy

A law can be valid but not effective
Ex. Seatbelt law
Validity of law is Timeless
Exception: when it is repealed
Constitution social contract
-Executive E.O., A.O., Local ordinances
Legislative R.A.
Judiciary one that decides; final and executor;
G.R. No.
*laws must be in accordance with constitution;
Question the constitutionality
Jus Soli law of the place
Jus saguinis Law of the blood (mother; father,
etc.)
CLASSIFICATIONS OF LAW:
1. Natural Law not a legal system but consists of
certain fundamental precepts of life which are
discoverable through divine inspiration and the
use of reason; not by any form of promulgation but
by inward impression upon the human heart and
those rule attained by the light of reason and
understanding.

INTRODUCTION TO LAW - AUFSOL

, M. / Quiambao, T. / Rojo, K.
-the social contract, which is the foundation of
every social order;
- it is innate or within yourself;
- no need for authority to say it is a law;
- resonated even way back even before it is
recognized; even if no one will tell you, you
will do or follow it.
Examples of precepts of natural law:
- Righteousness
- Justice
- Equity
- Fairness
2. Positive Law consists of rules of conduct,
promulgated by competent authority that
regulates human relations.
- strict term: a statute created by the
legislature of the state. (ex. New Civil Code of
the Philippines of 1950)
- Establishes law as a manifestation of political
power - should be an ethnically neutral
instrument.

* GENRAL VS. INDIVIDUAL (scope or content

of the law)
1. General or public law general application
Ex. Constitutional law governs relations
between human beings as citizens of a state
and the governing power.
Criminal law guarantees the coercive power
of the law so that it will be obeyed.
2. Individual or private law regulate the
relations of the members of a community with
one another.
Ex. Civil law purely private ends
Mercantile law regulates special
relations
produced
by
commercial
transactions.

*SUBSTANTIVE VS. PROCEDURAL

Substantive creates a right
Ex. Constitutional law and civil law
Procedural law - merely provides
procedure to enforce private rights.
Ex. Remedial law; rules of court
*MANDATORY VS PERMISSIVE

the

Mandatory have to be complied with,

because they are expressive of public policy
and disobedience is punished either by direct
penalties or by considering an act or contract
void.
Permissive are those which may be deviated
from, if the individual so desires.
Nature of the law
a. Historical View
- appraises law in the context of the common
consciousness of a group of people.
it seeks to answer the questions where did
the law come from and where did they evolve
b. Teological/ Philisophical view
which considers the nature of law in terms of
the moral and rational nature of human
beings.
emphasis on justice and ethics.
- Telos - end
- what is the telos or end of the law
- - Man being naturally good or ethical
c. Analytical or Positivist
- law as a conscious rule and norm of the
state
- what is the distinctive structure and the
content of the law
(ex. Stat con)
d. Functional/ sociological view
- considers the law in terms of the
satisfaction of the conflicting or overlapping

INTRODUCTION TO LAW - AUFSOL

, M. / Quiambao, T. / Rojo, K.
claims, demands and expectations of the
people with the minimum of friction and
waste.
- What is the function of the law answer:
protect the neighbor
e. Realist/ Pragmatic View
- law on the basis on-going experiences of
the people; applied objectively
- Is the law applied objectively?
f. Policy Science View
- considers law in relation to the degree of
success of a community in achieving
certain socio-legal values.
- How does the law relate to the degree of
success of a community in achieving social
legal values?
- achieving equality
ex. Agrarian reform because of greed
g. Marxist- Leninist View
- considers law as the socio-class regulator
expressing the state will raised to the level
of law of the economically dominant class.
- what or who does the law protect is it
labor? Government? Capitalist-type of
government?
LEGAL PLURALISM
Eugen Ehrich (1862-1922)
- austrain jusrist who proposed that law
exists side by side with other factors in
society, which may take into consideration
the prevailing religion, ethics and morality
of the said society.
refer to drawing triangle is not big
enough
facets
in
understanding
law:
religion/ethics/morality;
state;
society
(these are outside the triangle)
You cannot take law in a vacuum.
LAW AND SOCIETY

Theas lecture:
Rule is a general norm mandating or guiding a
conduct or action in a given time of situation it
prescribes what activity should or should not
be carried out in a specified way. (normative)
* Law contains rules: POWER- CONFERRING
RULES
WHICH
ENABLES
CERTAIN
ACTIVITIES TO BE CARRIED OUT WITH SOME
FORM
OF
LEGAL
BACKING
AND
PROTECTION. Ex. Law of contracts.
-A System of Rules is not sufficient by itself to
be an an accurate or adequate account of law.
Law
- is a rule that defines that can or can not be
done.(normative). As opposed to what
does happen (factual).
- Law is a system of rules, which defines
what can or cant be done.
Ex can marry at the age of 18 with consent
(civil law) and if 17 yrs. Old even with
consent cant.
NORMATIVE CULTURE
-

mass of rules in society which governs

conduct
- FORMS OF NORMATIVE CULTURE:
1. Normative system culture specific to
social order and to society. (ex. The way
that we give in to the old people. The way
that we have extended family - 18 yrs old
whether male or female will be kicked out
of the house in USA while in the Phil. It is
not like that)
Normative- laying down standards of
behavior to which we ought to conform if
the rule affects us.
2. Dogma- associotaed or related to religion
ex. After life, one God.

INTRODUCTION TO LAW - AUFSOL

, M. / Quiambao, T. / Rojo, K.
3. Customs- regulates the interaction or what
has been; tradition (ex. Fiestas,x-mas)
-usage or practice common to
many
4. Mores
- idea of morals- associated with morals
which defines acts which are right in
relation to one man to another.(ex. Parent
to physically discipline child strict
parents)
- values and behavior that are accepted by
a particular group, culture
5. Norms are not necessarily legal norms
are distinguished by legal norm from nonlegal norm.
a.) The identification of the
emitter of the norm (where it
came from)
b.) The
nature
of
its
consequences (ex. if it is
penal there will be fines or
imprisonment)
ALLOTT
- noted that a legal system is not necessarily
only obeyed because of the physical force
lurking behind them.
- Law is law bec. It is a law. (ex. Circular
argument- why did you do that? You just
have to follow him bec he said so)
- A good resonate with you; a law should
seem right to a vast majority with people.

contract to him) ex. Employer has

responsibilities towards his employees
- Law is a restriction of rights (ex you can
get marry at the age of 18. You cant marry
less than 18)
- Every law given rights also limits them.
- You might think you are free but actually
you have a lot of impediments to freedom.
Ex. Public freedom
- While a ruler gives commands he is less
free than his subjects.
- Rosseau defines law One way to define
law is to look at the functions it performs in
society.
KARL LLEWELLYN: Law jobs theory
- law - jobs theory it is a general account
of the functions of legal institutions in
social groups of all kinds.
2 main kinds of problem addressed by Law
jobs theory
1. Adjudication of differences means of
resolving the differences (ex. By the
Judiciary, DOJ, Quasi judicial- DOLE)
2. Providing
authority
structureconstituted and recognized
Kinds of law jobs- Judiciary and Congress

ROUSSEAU
-

man is born free yet everywhere he is

chains. One thinks himself to be the
master of others, and yet remains a
greater slave than they (meaning of social

THEAS LECTURE:
LAW JOBS THEORY
every social group has certain basic
needs, w/c are catered for by the social
institution of law by helping ensure that
the group survives as such by
providing for the prevention of
disruptive disputes within the group.
should disputes arise among the members
of the law must provide means of resolving
them.

INTRODUCTION TO LAW - AUFSOL

, M. / Quiambao, T. / Rojo, K.
ROBERT SUMMERS
-Define law : one way to define law is to
look at the functions it performs in society
- same approach with karl llewellyns law
jobs theory
ROBERT SUMMERS 5 TECHNIQUES OF
LAW- Five techniques of law used to
implement social policies:
1. Law is used to remedy grievances
2. Law is used as a penal instrument
3. Use of law as an instrument with which
to promote certain defined activities
4. Use of law for managing various
governmental public benefits (ex.
Education and welfare policies)
5. Use of law to give effect to certain
private arrangements. (ex. Provision of
law on contract oblicon)
JOHN AUSTIN
-

not all laws are commands but procedures

(ex. Tax refunds pay tax first)
- it is a command separate from societyJohn Austin
- Theory of legal positivism
a. The law is command issued by the
sovereign
b. Such commands are backed by threats
of sanctions
c. A sovereign is one who is habitually
obeyed.
HART
- In his book the concept of law social
group must have certain rules which
impose duties upon the members of the
group concerning standards of behavior.
- System of rules - HLA HART
PRIMARY VS. SECONDARY

Primary rule
basic law
impose duties, obligations on
individuals
- are substantive rules that give you rights
and duties
1. criminal, civil, laws of contract, real
property, and torts
Secondary rule
- procedural which sets rules and methods
employed to obtain ones right, in
particular, how the courts are conducted
- supports the primary rule in developed and
complex societies
- PROCEDURAL
1. rule of recognition( who is the proper
authority)
to remedy the problem that there will
be no settled procedure for resolving
doubts as to the nature and authority of
an apparently legal rule. ( ex.
Constitution)
2.rule of change
to remedy the problem that there
will be no means of changing the
rules in accordance with changes
in the circumstances of the social
group. (ex. Ammendments and
repeals)
3. rule of adjudication
- provides for officials (judges) to decide
disputes authoritatively.
- To remedy the problem that the primary
rules will be inefficiently administered
because their enforcement will be through
diffuse social pressures within the group.
(ex. Rules of court MTC, RTC)
- Hart: a law can not be considered a law forever
RONALD DWORKIN

INTRODUCTION TO LAW - AUFSOL

, M. / Quiambao, T. / Rojo, K.

inheritance
DURA LEX SED LEX ; VERBA LEGIS

HOLMES
The life of the law has not been logic; it
has been experience... The law embodies the
story of a nation's development through many
centuries, and it cannot be dealt with as if it
contained only the axioms and corollaries of a
book of mathematics.
- The law itself may not change but its
interpretation has
- The law is not very clear
MAX WEBER
3 types of authority/ identification of
authority:
1.

2.

3.
-

EMILE DURKHEIM
-

What keeps society together?

If law were suddenly relaxed,it is unlikely
that society would immediately plunge into
chaos and disorder(personal discipline)

Emile Durkheims study of 2 contracting

societies
1.
Simple,
technologically
underdeveloped

identical
interests of the whole; same jobs
and goals you either conform or
get out; use repressive law;
Gemeinschaft - give a little take
a little

Personal
characteristics

charismatic leader; his personal

and individual characteristic
Traditional authority always been of
authority
ex.
Monarchy,
tribal
communities such as elders in tribal
communities; obedience to the leader
or regime

2.

Advanced
societies
use
compensatory laws (object is not
to punish but to solve grievances
by trying to restore the aggrieved
person to the position he or she
was in prior to the dispute);
different jobs not towards the
same
goal;
maybe
interdependent; winner takes it all
attitude or compromise.
gesellschaft- winner take all
Function of law: dispute settlement 1.
Gemeinschaft and gesellschaft

Bureaucratic/rational-legal

through rules and procedures ex. Elections

Most societies have elements of more than
1 type
Who determines authority? (summers and
Llewellyn) Studies in various disciplines
show that a legal order must provide:
recognition of legitimate authority (ex. You
dont know who to follow), means of
resolving disputes, mechanisms for
facilitating interpersonal relationships ex.
Verbal obligation; no rules on marriage
(basic judicial system)

PARSONS
consensus view of society
society is a system that maintains social
stability and order
FERNANDEZ

Man is fundamental and has a natural

propensity to achieve the good life

INTRODUCTION TO LAW - AUFSOL

, M. / Quiambao, T. / Rojo, K.
-

No man can secure this for himself (you

want something more_
- Society springs up as a necessity
- The individual joins a portion of his power
with that of his neighbors
- Society, through law, confers security as to
life
- The constitution does not protect us from
deprivation of life, liberty, or property
- Only, it requires due process before we
can be so deprived
COMMIT YOURSELF TO SOCIETY
- changing nature of the law such as:
+ laws on motor vehicles
+intellectual property
+nationalization policies of the govt ex
grace poe
+ laws of adoption
+laws of trade ex. ASEAN
-LAW IS NEVER STATIC
-LAW CAN ONLY BE UNDERSTOOD IN
TERMS OF THE SOCIETY IT WORKS IN.
INTERPRETAION OF LAWS VARIES
KELSEN
Just as the essence of the community
constituted by law is most clearly revealed
when their existence is in question, so it is
that the significance of the basic norm
becomes especially clear when a legal
system, instead of being changed by legal
means is replaced by revolutionary means
(ex. People power = revolutionary
government)
-

understand the essence of the law when

someone tries to change it
WHY DO WE OBEY THE LAW?

+ fear of punishment
+ belief that the expected action is the
proper one
+ acceptance of authority
-Under ARTICLE 3 OF THE CIVIL CODE:
IGNORANCE OF THE LAW EXCUSES NO ONE
FROM COMPLIANCE THEREWITH- a society
can survive
LAW AND MORALITY
- a societys code of morality
MORALITY
- early philosophers believed that human
law was derived from divine law
- since gods law constituted the absolute
criterion of good and evil, human law was
then beyond criticism ex 10
commandments
- morality is relatve
ST. THOMAS AQUINAS
-

the criterion by which to determine what is

good from what is evil is the criterion of
reasonableness. inner voice
2 kinds of liability
1. general conditions2 proposition under the general
principle: a.) the holds only liable only
the actual wrong doer b.)
blameworthiness a persons liability
will depend on whether the person
maybe said to be morally blameworthy

2. Specific conditions- it depends of

particular offenses ex. Theft intent to
deprive, unlawful taking ex. Pick pocket
vs. robbery- intent to deprive, unlawful
taking, it attended by force, violence,
intimidation

INTRODUCTION TO LAW - AUFSOL

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all requisites must be met otherwise you
wont be held liable

most people think of morality in

terms of sex and violence.
Cases: *drug abuse and hazing

FULLER
FULLERS PROCEDURAL RULES:
1. Rules are in place
2. Rules known to all affected
3. No retroactive effect
4. Understandable
5. Consistent
6. Not impossible
7. Not changed frequently
8. Coincides with administration
Procedural need to comply with procedures
(notice to the parties)
- prior notice, hearing, and documentation
DUE PROCESS; you can be deprived but not
without due process. (Fernandez)
Substantive: they tell you what you need to comply
with.
- comply with simple rules

*R. vs. BROWN

Facts: 6 appellants were convicted of a no. of
offenses under the offenses against the person
(ACT 1861) (homosexual; acts of sadomasochistic violence; videotaped)
Issue: Whether the law should interfere in the
private affairs of adults who consent to certain
sexual practices
-consent
-Private morality
Held: It is not in the public interest that people
should try to cause or should cause each other
bodily harm for no good reason which breed and
glorify cruelty.
Dissent: Lord Mustille: Consent valid defense
Lord Devlin: the limits of tolerance( or rather the
boundaries of socially acceptable behavior)
change. ; public debate; believed that it was an
unacceptable to distinguish public and private
immorality; society should use law to no such
thing as private immorality

FINNIS
(they are not good because they are taught
morally good)

JOEL FEINBERG

FINNIS BASIC PRINCIPLES:

- knowledge
- play
- aesthetic experience
- sociability
- practical reasonableness
- religion
Morality
- How it affects law
Not all natural; it also involves
humans as well

- Utilitarian concept of ethics an actual

philosophy in which the happiness of the greatest
no. of people in the society is considered the
greatest good.
(it cannot offend you if you dont see it)
- if a private item is determined by threat of
punishment to actually search; ex. Doing in
the backyard 1:10 impossiblity to be caught
- Private immoralities are deterred by
punishment. (must find the wrongdoers but
impossible because you do it in your private
abode)

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RONALD DWORKIN
- moral convictions may be enforced by
CRIMINAL LAW.
- (it most be so offensive that we can get
into a consensus; ex. MURDER)
- not liking it will not make it illegal
- MORALITY IS RELATIVE:
depends on society according to
your society (ex. Divorce: legal in
US; illegal in the Phils.)
changes overtime- ex. 2015:
divorce is legal in other states;
LGBT can marry US)
RPC Art. 333 Adultery and Art. 334
Concubinage
Adultery married woman; has an affair with
sexual intercourse
Concubinage man brings mistress in conjugal
dwelling; sexual intercourse scandalous
circumstance; cohabitate elsewhere
When a female gets pregnant, do you know the
mother? YES.
REASON FOR A HARSHER LAW FOR
ADULTERY: female gets pregnant: mother =
knows who the father is; while in the case of the
father = cannot determine whether it is his.
- Also, to protect the family unit.
Some cases:
-Conjoined twins: Murder with intent although
doctors have the duty to save Jody, they must also
respect the life of Mary.
(The case went to the high court which ordered
that the separation should go ahead, and then
quickly on to the court of appeal, where judges
said they had been faced with an agonising
decision.

In the end they came down in favour of Jodie's

right to life. "Mary has always been fated for early
death," said the senior judge, Lord Justice Ward.
"Though Mary has the right to life she has little
right to be alive.
"She is alive only because, to put it bluntly but
nonetheless accurately, she sucks the lifeblood of
Jodie and her parasitic living will soon be the
cause of Jodie ceasing to live.)
- On Censorship
-MTRCB PG; R- kids cannot see it
-Obscenity black and videos beforebasic guidelines: whether the average of
contemporary person; whether the word depicts
unapplicable; lacks serious literacy (what is ok
and not?)
Caveat:
- Some actions are illegal, though not
immoral
- Ex. Driving without a seatbelt
- Some actions are immoral, though not illegal
Ex. Premarital sex of single ladies
1987 constitution:
ARTICLE 2, Sec. 6: Separation of Church and
State shall be inviolable (it is untouchable)
Government should not engage itself in the affairs
of the church.
Ex. RH LAW; no tax for churches
Church can criticize the state; it should provide
moral guidance
State
1. Do not show preference for any religion
2. Cannot appoint army chaplain
3. Public Schools
CIVIL CODE : ARTICLE: 19, 20, 21

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-

refer to moral values; catch-all provisions

in the civil code because the congress
knows all of the possible craziness.
Breach of promise to marry = 1.
Humiliation; 2. Expenses; 3 Virginity

LAW AND ECONOMICS

The logic of law and economics:
Economics is the most advanced of the social
sciences, and the legal system contains many
parallels to and overlaps with, the systems that
economics have studied successfully Judge
Richard A. Posner, 1989
* All of us, no matter what age, statute, and so on,
we already encounter economics.
ECONOMICS provides a normative standard for
evaluating law and policy; Laws are instruments
for achieving social goals, and economics predicts
the effects of policies on efficiency.
(you can use economics in passing a law)
- changing the legal relations governing society:
ECONOMICS AS A TOOL
- Economics provide systematic measures to
evaluate behavior.
PRISONERS DILEMMA: *form of Game Theory
In the traditional version of the game, the police
have arrested two suspects and are interrogating
them in separate rooms. Each can either confess,
thereby implicating the other, or keep silent. No
matter what the other suspect does, each can
improve his own position by confessing. If the
other confesses, then one had better do the same
to avoid the especially harsh sentence that awaits
a recalcitrant holdout. If the other keeps silent,
then one can obtain the favorable treatment
accorded a states witness by confessing. Thus,
confession is the dominant strategy for each. But
when both confess, the outcome is worse for both
than when both keep silent

see notes for details

GAME THEORY:
- Science of strategy; It attempts to determine
mathematically and logically the actions that
players should take to secure the best outcomes
for themselves in a wide array of games. The
games it studies range from chess to child rearing
and from tennis to takeovers. But the games all
share the common feature of interdependence.
That is, the outcome for each participant depends
on the choices (strategies) of all. In so-called zerosum games the interests of the players conflict
totally, so that one persons gain always is
anothers loss. More typical are games with the
potential for either mutual gain (positive sum) or
mutual harm (negative sum), as well as some
conflict.
- surpasses intuition, just as science
surpasses common sense.
COASE THEOREM:
- A legal and economic theory that affirms that
where there are complete competitive markets
with no transactions costs, an efficient set of
inputs and outputs to and from production-optimal
distribution will be selected, regardless of how
property rights are divided. - Coase theorem
asserts that when property rights are involved,
parties naturally gravitate toward the most efficient
and mutually beneficial outcome.
analysis suggest that the intervention of law and
the allocation of legal duties and rights to
compensation would not affect the final outcome.
Consider a factory, whose smoke causes
damage to the laundry hung outdoors by 5
residents:
Eliminate problem: 1. Smoke screen = 150
2. electric dryer = 50 each resident on their
own

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Cost of damages: RESIDENTS (75 per

resident )* 5 = 375
Cost of solution: Smoke screen = 150 (all-in)
electric dryer = 50 each resident = 250
-

Cheaper solution is to install a smoke

screen
If the residents have a better right the
factory will shell out the money

But, if the factory has a better right, the

residents will have to shell out to achieve
clean air

They will not necessarily come up with the

best solution, depending on transaction
costs.

Political Economy politicians are motivated by

personal interest
- public officials are motivated by subjective
interests.
Policy Analysis rejects the general idea:
*is a systematic evaluation of the technical and
political implications of alternatives proposed to
solve public problems. Policy analysis refers to
both the process of assessing policies or
programs, and the product of that analysis.
- those who win have greater power.
- policy questions: (kapag naiiba na yung mga
gusto, not in line na sa goal)

SOLE PROPRIETORSHIP vs. CORPORATION

-

ACCORDING TO PROPONENTS OF THE

STUDY OF LAW:
Common law legal rules are in fact
efficient.
Legal rules ought to be efficient.
Legal processes select for efficient rules
Individuals respond to legal rules
economically
Common law doctrines promote efficiency
PARETO THEOREM:
- equality; you can make someone better off
without making someone worse off.
POLICY ANALYSIS VS. POLITICAL ECONOMY
-

both strands adopt the assumption that

each individual seeks to maximize their
preferences.

The corporation allows individuals an alterego to suit their business interests.

Sole proprietorship individual;
Advantage: easy to set-up, Sole control of
the company
Disadvantage: no funds to expand; limited
life/ resources; unlimited liabilities.
(ex. Neighborhood sari-sari store)

Role of the Government:

Government intervention is seen in periods
marked by highly intrusive laws.
Other periods are of lassiez-faire, with the
government playing a passive role.
LAW AND PROPERTY
Things to consider:
Property: Implicit unequal distribution is prevalent.
Generally not equal. There is a disparity between
the ruling class and other people.
Property rights are related to wealth.

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equal distribution among social classes is

permanent but not equal in fact.
Durkheim: hereditary transmission of property
- few are allowed to accumulate property via
succession. (advantageous to children)
*in the case of Singapore they cannot
acquire real property ; hereditary transmission
is not allowed (to give everyone the chance to
acquire properties; the disparity between the
rich and poor)
THINGS TO CONSIDER:
- each type of property has developed a
fairly specific classification
a. personal property things seen and
carried around
b. real property land: REGISTRY OF
DEEDS
c. chooses-in-action intangibles but has
monetary value; INTELLECTUAL
PROPERTY OFFICE (ex. Patent,
Copyright, stocks and trademark)
PROPERTY RIGHTS That legal right which is
separate from the thing which is the object of that
right.
-Legal right: Property Ownership; Property
in Possession (the difference is seen in the lease
agreement)
Ex. Rentals: A owns; B is renting = A has rights of
ownership, B has rights of possession.
Thus, several legal relationships may arise
between the property right and the property
object.
KARL RENNER:
Private property entitles power and domination.
-Money determines power
WHY PROPERTY MATTERS?

He argued that in acapitalist system,

property is transformed from a mere title to
dispose of material objects into a title to
dominate.
(Private property entitles power and
domination; Money determines power)
According to Renner the so-called freedom
to contract or freedom to negotiate are
illusory.
The worker only chooses his master, he
has no choice as to whether or not he
wants to work.
Employee has actually no choice
but to accept whatever means/
terms the employer will give.
Employee will do anything without
regards to the terms of contract.
The employee cannot say no to
anybody.

Argument vs. Renner

- There is now an effective separation
between ownership of property and its
effective control.
- The managers, not the property owners
exercise real power (real power = decision
of day-to-day transactions)
(ex. Shareholders controlling shares)
Real Property Original basis of wealth
- immovable, permanent and virtually
indestructible.
- Citizens of other countries are not allowed
to own real property in the Philippines.
o 60% Filipino-owned in
corporation and real property
(Philippines relies on the land registration system)
Intellectual Property Constitutionally protected.

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The Philippines joined WIPO in 1980 (for

copyright, trademark, patent)
- Copyright right of something that can be
copied. Ex. Music, movie, books
- Trademark mark of a trade.
- Ex. Jollibee - Every single part of it
(letterings, colors, bee) ; logo
- Patent innovation; novel idea; you must
create something that nobody thought of
before. (with expiration; after it expires it
can be used by other persons)
Exception: COCA-COLA no patent and
copyright.
Intellectual Property: Kantor-Navarro Agreement
(1993)
- to delist the Philippines from the priority
watch list/ blacklist of countries covered by
the Super 301 list under the United States
Trade Act.
Example: Philippines vs. U.S. blacklisted of
several companies because of greenhills.
(1995) To have special courts to hear
Intellectual Property cases.
(1997) R.A. 8293, The Intellectual Property
Code of the Philippines was enacted and
made effective on January 1, 1998
For education purposes:
Fair use- only a portion is copied
Other laws governing property:
- pre-nuptil agreements
- Absolute Community of Property
- Legislations regarding forest, mining,
fishery resources, clean air, Solid Waste
management, etc.
Recent Problems:
- digital technology : ex. Video-taping; fileharing
- the internet: right to privacy ( ex. Cyberbullying); evidence

CARP ( Comprehensive Agrarian Reform

Program)
- the agricultural land is given to those who
actually work for it; (5 hectares per person
is allowed; which can be passed down to
your heirs) 6% payment only.
- issues of CARP: not all land is ideal in all
plots; cooperative-owned)
LEGAL SYSTEM OF THE WORLD:
Classifications:
- Ethnic or cultural per country (focus on
greek and roman laws):
Greek highly organized society;
Roman Laws up to now latin terms
- no more society that strictly
follows it, study: survived; reworded.
- Religious preferences Catholic legal
system; Mohammedan
ETHNIC OR CULTURAL
1.
-

Egyptian legal system:

monarch: Supreme Ruler
Oldest court record dating to 2500 B.C.
Treaties: between King Ramses II with the
Hittie king Hattushilish III for mutual
assistance in external attacks as well as
internal revolts.
Provided for extradition of political
offenders
Now gone; Disappeared when the Romans
defeated Queen Cleopatra in the battle of
Actium

2. Mesopotamian legal System:

- King foundation of justice, receiving law
from divine guidance.

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Oldest code text discovered; a legislation

of Babylon
- Code of Hammurabi; a king of Babylon
was inscribed on a pillar of black diorite
about 8 ft. high.
o A national code of a legislation;
actual code
o Scope: crimes, family relations,
property (property law) , commerce
(commercial law) (scope of code of
Hammurabi)
- King Hammurabi- PN which is the oldest
negotiable instrument
- now gone; disappeared under greek rule around
10 B.C.
3. Ethnic ; Hebrew
-

Their civilization was originally nomadic &

pastoral, then agricultura, and only later
commercial
Developed in 5 well defined stages
(LEGAL SYSTEMS)
1. Mosaic period, a theocracy(authority &
power derived from God), pertinent
people: King Solomon (2 women and 1
baby the wisdom of God is with him to
do judgment), Moses (10
commandments), Pentateuch (5 books
known as the Torah or ancient law
Genesis, Exodus, leviticus, numbers
and deuteronomy
2. Classic Sanhedrin( senate other
name is the Great Synhedrion but acts
like the Supreme court)
3. Talmudic the Talmud (compilations of
reports of all recorded cases and
commentators 1. Mishna codified text
2. Gemara- commentaries)
4. Medieval treaties and compiled
codes are made by the rabbi

5. From AD 1600- around the time were

certain countries tried to expand their
territories
- time started when nationalism in Europe
prospered
- forced the Jews to relocate
4. Chinese Legal System
- Oldest surviving system
- Confusianism Confucius, 500 B.C.
Chief justice
You are only as
good as those who
are under you.
- positive law should confine itself to
translating the natural law into written form.
- Code of Tsing Tsa Tsing Lu Li - 1650
o Li annual edicts and decisions;
procedural
o Lu text which never changes;
code proper; substantive
- Greatest pacifist, why?
o They have never yet attempted to
conquer another territory
Chinese- strong clan and family structure
5. Hindu Legal System:
- India dominated at least 6 successive times by
immigrant alien races.
- only the Indo-Aryan (Hindu) developed a native
system of law.
- 2 branches: Buddhism Gautama Buddha
- Enlightenment
- goal: Nirvana peace of
mind and soul that comes to man after he has
overcome three cravings: riches, sensual
enjoyment, immorality
Brahmanism/ Hinduism Laws of
Manu law-book of Brahma-Hindu
- predominant in india
- Manu author of the system; also a prehistoric deity

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Caste- system- division of classes:
Royals; priests; scholars;
tradesmen; untouchables (cannot
marry one from another class; does
not mingle with the other class)
o Caste system determines his
religious social economic and
domestic life from cradle to grave
Hindu Code compilation progress of
hindu jurisprudence.
o

6. Greek Legal System

- Developed a secular system of law
- 8th century B.C. establishment of the polis barangay
- 6th Century B.C.
- Solon Congressman; Law-maker
- one of his first acts was to repeal all the
legislations of Dracon, except the laws relating to
manslaughter;
-instituted the greek art of ORATORY
system means cross-examination
- to think on your own feet.
- Jury system; prosecution by a people
th
- 5 and 4th Century B.C. politics
- Socrates Founded The Academy;
Socratic Method (Q&A) practiced it on
Plato.
- Plato Republic ideal system
- Aristotle attended the school of
Socrates with Plato
-

Philip of Macedon father of Alexander

the Great
System of justice, but no system of law;
reactive style of justice

7. Roman Legal System:

- considered the most lasting and pervading
influence.

- an aristocratic nation controlled by the senate.

- knowledge of the law limited to sacerdotis publicii
ARCHAIC PERIOD - 12 tables written code of
laws whose key principles were:
- the household was the key institution;
(men and husband - as head; eldest son
takes over when father dies the females
are under the guardianship of the males)
- marriage was an institution for the
perpetuation of the family
- civil law marriage gave the husband
manus (power) over the wife and children
were subject to patria
- civil law gave the husband manus
- the rights exercised by the pater familias
included dominion over things, powers
over members of the family, and
administration of SACRA
- Pater familias was authorized to designate
through testament a person to succeed
him as heir. (males only)

under Table IV (12 tables) : Monsters or

deformed children may be put to death.
Paternal power over children during their
life to imposition.

REPUBLIC PERIOD: YOUTH

- At the peek of its conquest, Rome (empire)
encompassed all nations
- Republic to manage from a centralized source
later law was initially developed through Jurists
- later, Emperor Agustus Caesar (Caesar
was a politician and general of the
late Roman republic, who greatly
extended the Roman empire before
seizing power and making himself
dictator of Rome, paving the way for
the imperial system.)

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- ius or jus means leagal system or right or law.
Roman juristis use it to include all commands of
morality of law.
- Jus Civile native law of the Romans;
our law amongst ourselves;
Civil law of Romans
- Jus Gentium foreign law; set of rules
were put in place to govern relationships
with, and between non-romans
- For non-Romans, their disputes were settled
through their own laws.
- later, recognizing the superiority of the jus
gentium, the ius civile was broadened to embrace
many of the fundamental principles common to
legal systems of the nations under Rome.
- When Roman Citizens invoked ius gentium for
cases in which the ius civile provided no remedy
or an inadequate one, the new law came to be
referred to as JUS AEQUUM.
- Jus Aequum equity; not set in stone;
general principles; the one who provoked is the
one who pays (depends on the situation)
- The Roman Law which has survived is limited to
private law Tort, property, contracts, etc. Thus,
earning the name CIVIL LAW.
- Thus, when the Spanish and portugese
conquerors introduced legal systems to their
colonies, they brought with them what remains of
Roman Law CIVIL LAW
- When the other Universities picked it up. Roman
law became common in Continental Europe.
(At the end of the 11th Century, the University of
Bologna in Italy, started teaching the CORPUS
JURIS CIVILIS)

CLASSICAL PERIOD
- The imperial government became more
autocratic
- JURISTS became official advisers

If the jurists would not reach a consensus

on a question of law, resort to majority
opinion, if the jurists are still divided , then
the judge on the case will exercise his
discretion.
- Legal education became important, as it
became a requirement for government
employment.
- The JUSTINIAN CODIFICATION is
confident as the most significant _____ in
the history of Roman law
CORPUS JURIS CIVILIS; CIVILIS
JUSTINIAN:
A. Institutes of Justinian official elementary
textbook on Roman law for law students;
Institutes of Gauis
B. Digests Pandects; excerpts from the
works on classical Roman Law by 39 jurists.
C. Codex Constitutionem all imperial
enactments; 10 books (codification); with
repeal of all ordinances excluded. (Their
Constitutional (public) law; Civil law)
D. Novellae Constitutiones Post Codican
- Novels new imperial ordinances or
statutes issued after the revised codex; addendum
(Succession; Religious and Ecclesiastical law)
8. Celtic Legal System Druidism religion which
acknowledges a god that delighted in bloodshed,
believed in the immortality of the soul; inculcates
the concept of danger and deah; influenced the
government; power and minds of the people
supplied imperfection of laws.
- Druids are priests who are powerful enchanters
- left nothing written.
9. Slavic System notable nations in Slavic legal
history are the: Russian, Serb, Bohemian and the
Polish.
- Tolstoy rules established

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- The Civil Code of the Soviet Russia , adopted in
1922
- This is due to the relative unimportance of
property in the Soviet system.
10. Germanic Legal System Purely secular.
Their gods included THOR the god of law
- As compared to Roman laws, Germanic laws
gave great attention to serving justice for the
individual. Even slaves were allowed to live in their
own house, and to retain a certain portion of their
earnings.
- democratic settlement of disputes, done within
an assembly.
11. Japanese Legal System
The 17 maxims of SHOTOKU are not really
rules of law but they are principles to live by; a
short code (not codified) of political and social
cooperation
- In 1853 Japans international seclusion was
broken.
- The barons denounced the government for
cooperating with foreigners
- 1889 unwritten consitution
- Japan was a military state
- In an attempt to rule Asia, it had tried to invade
its neighboring countries.
- At that time, China maintained a tenuous control
over Menchuria.
12. Anglo-American Legal System
- A. Common Law- from customs and traditions;
Only the king had the power to do something;
based on previous judicial decisions
- Angle Land = England
- William Duke of Normandy became master
of England
- Prior to the Norman Conquest :Custom is the
rule, in which those common customs form part of
the law of the land; it is general

- The time, the country was divided; king has setup his different courts to settle disputes
- Out of the many diverging customs, the kings
judges build a uniform system of law enforced
throughout the kingdom COMMON LAW
- As common law is rigid and formal in order to
grant relief, resorted to equity.
- Equity found itself establishing jurisdiction over
matters where the common law failed.
Ex. Under Common Law, the only remedy
for breach of contract was damages, but under
equity, the remedies of injunction and specific
performance were found.
-The most famous maxim of Equity:
1. He who comes in equity must come with clean
hands;
2. Equity will not suffer a wrong to be without
remedy (for every wrong there is a way to make it
right);
3. Delay defeats Equity;
4. Equity looks to the intent rather than the form.
(laws on speedy trial)
-

Both law and equity are part of what is now

called the COMMON LAW TRADITION.
Equity prevails.

COMMON LAW VS. CIVIL LAW

Common law principle of Stare Decisis, when it
is not found in the code look at previous
decisions.; equity
- U.S. common law origins
- most states observe common law
practices except Louisiana Roman Law tradition
- John Marshall Chief Justice from 18011835; was the first to proclaim the DOCTRINE OF
JUDICIAL SUPREMACY (interpretation of the
constitution)

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Civil Law there is a written law about it.
RELIGIOUS SYSTEM:
1. Catholic
- Canon law of the Roman Catholic Church began
to develop alongside Roman belief indigenous law
in Europe, after the end of Roman Empire
retreat of ancient Roman Law.
- It attempted to legislate in detail for all phases of
human life (clerical, ecclesiastical, social,
domestic) from the cradle to grave.
POPE considered to be more powerful
than kings as he is the one who advices
them.
- It had its own penalties and prisons
- In 1917, the Council of Trent responded to the
issue raised by Protestant reform ( 1 king wanted
to divorce his wife, Catholics did not allow, so he
shifted to Protestantism)
- The most important ______________, dealt with
marriage law
- On Jan. 25, 1993, Pope John Paul II
promulgated the present Code of Canon Law,
which has the force of law for the whole latin
church.
- canon law courts own courts; subject to
catholic practices (canon lawyers practice this
field)
2. Mohammedan
- this legal system was founded in A.D. 600 by
Mohammed (or Mohamet)
- It is notable that in A.D. 800 1200 was
considered the Dark Ages of Christian Europe. At
that time, therefore, the Arabs were the sole
vehicle of the worlds active intellectual and artistic
progress. (Outside of Eastern Asia)

Islam Submission of God

3 sources:
1. Koran word of God; written down by
Mohammed
2. Sunrah Sayings and conduct of Mohammed
3. Treaties of Jurists developed from those
fundamentals the legal rules applicable to all
affairs of life.
The law or Shariah is part of the religion and not
separate.
COMMON LAW previous decisions form part of
the law of the land
CIVIL LAW written law
SOCIALIST LAW Everybody is equal whatever
services and goods are to be divided equally.
- Nobody will have more than the others;
- They have socialized means of production
and give the state and expanded role;
Sources of Law:
1. Primary
1.1 Statutory
- Constitution
- Treaties
-Statutes
- Administrative Orders, regulations,
Ordinances
1.2 Case Law stare decisis
2. Secondary supplementary sources of law
1. Case digests
2. Treatises and Textbooks
3. Bar Reviewer
4. Legal Periodicals
5. Encyclopedia
6. Law Dictionary

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