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PREFACE
To question the wisdom of the law — the whys, the hows, the what fors, and the what ifs.
These are the themes of the related courses of Legal Theory and Legal Philosophy, which this
book presents in a nutshell.
Starting with a query on whether society needs law, the authors discuss perennial legal issues
on what makes a good law and law in relation to power, morality, justice, economics, freedom,
and duty. An exposition of legal theories introduces the conflicting answers on the nature and
ends of law, such as natural law, positivism, constructivism, realism, critical legal theory, and
practice theory.
The major fields of law are introduced in subsequent chapters in relation to their original and
dominant philosophical paradigms: International Law from the classical proponents of the
natural law of men; Civil Law, Family Law, and Criminal Law, as adopted from codified
Catholic, Hispanic, and Roman laws; Political Law as inspired by the American and French
constitutions and philosophies; Mercantile Law as copied from the English-American
commercial systems and cases; Remedial Law, based on empirical and inductive methods; and
Labor Law, in response to Socialist and Communist proselytism.
Chapters are concluded with related jurisprudence, dissents, and separate opinions that cite
philosophers and professors of jurisprudence, from ancient to postmodern. Among the highlights
are names every philosopher, politician, and lawyer should be familiar with — Plato, Aristotle,
Aquinas, the Stoics, the Roman jurists, Grotius, Blackstone, Mansfield, Bacon, Hume,
Machiavelli, Hobbes, More, Locke, Rousseau, Mill, Thoreau, Wojtyla, Marx, Wollstonecraft,
Hart, Finnis, Dworkin, and Foucault. This book ends with an eye on the laws of the present and
the future, based on postmodern trends, as flavored by local indigenous law.
PhiLawsophia is a suggested reading for Philosophy, Legal Management, Political Science,
and Law students; a guide to lawyers and legislators in their pursuit of order and right; and a
reference for members of the Bench in writing case opinions with a philosophical background of
legal principles. To anyone interested in understanding the law, this work seeks to crack those
conceptual mysteries behind the legalese. The reader is invited to journey through the mental
maze that makes up the shalls and shall nots that govern every aspect of our being; and to put the
law itself on the stand.
The Authors
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That night God appeared to Solomon and said to him, “Ask for whatever you want me to give
you.”
Solomon answered God, “… Give me wisdom and knowledge, that I may lead this people, for
who is able to govern this great people of yours?”
Then God said to Solomon, “Since this is your heart’s desire and you have not asked for
wealth, possessions or honor, nor for the death of your enemies, and since you have not asked
for a long life but for wisdom and knowledge to govern my people over whom I have made you
king, therefore wisdom and knowledge will be given you. And I will also give you wealth,
possessions and honor, such as no king who was before you ever had and none after you will
have.”
(2 Chronicles 1:7-12)
This work is affectionately dedicated
To my fashionable soulmate, DENI ROSE AFINIDAD-BERNARDO
and to our daughter, SOFIA VIVIENNE
who fill my life with wisdom, passion and purpose
under the law of love of the Sovereign Lawgiver
NICOLO F. BERNARDO
and to all philosopher-lawyers and philosopher-kings.
OSCAR B. BERNARDO
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CONTENTS
I. The Case for Law
Legal Wisdom and Counsel
Law’s Likes and Unlikes
Should Lawyers Cast the Philosopher’s Stone?
Chapter I Case Readings
II. Legal Issues and Theories
The Four Elements
Reason and the Common Good
Promulgation and Authority
Modern Standards for a Rule of Law
Species of Human Law
Main Issues in Law
Law, Authority, and Force
Enforcing Law
Law and Mores
Religious/Sectarian vis-à-vis Secular/Public Morality
Law, Justice, and Equality
Egalitarianism
The Blindfold of Justice
Law on Property and Economics
Private Property
Public Property
Corporate Property
Welfare Economy
Law and Freedom
Freedom with Duty
Laws, Guilt, and Personal Liability
Legal Theories
The Teleological or Natural Law Theory
Finnis on Basic Good
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The Positivist Theory
Legalism
The Hart of the Law
The Interpretivist or Constructivist Theory
The Get-Real Theory
The Critical Theory
The Once-Upon-a-Time Approach
The Functional or Sociological Approach
The Economic Approach
Forms-and-Fundamentals Approach
Practice Theory
Chapter II Case Readings
III. Natural Law and International Law, and The Classic Philosophers
The Nature of Mankind
Phases of Natural Law Theory
Wrestling for Ideal Law
The Republic and Philosopher-Kings
Laws and Preambles
Aristotle on Rational Law
Kinds of Government
The Stoics on Jus Naturale
Aquinas on Natural Inclinations
From Eternal Law to Natural Law
From Natural Law to Human Law
Enlightenment Philosophers on Natural Rights
Natural Law as the Law of Nations
Hugo Grotius
Blackstone’s Commentaries
Jacques Maritain
Chapter III Case Readings
IV. Civil Law: The Roman Jurists
Roman Law: All Codes Lead to Rome
Breaking the Code
On the Nature of Law
The Law on Persons
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Children and Marriage
Guardianship
The Law on Property
The Kinds of Ownership
The Ownership of Animals
Right of Accession
Land Title
Usufructuary
Servitudes
Occupation and Possession
Donation
Wills and Succession
Obligations and Contracts
Special Contracts
Sales
Loan, Mutuum, Deposit, and Pledge
Partnership and Agency
Quasi-Contracts
Delicts and Quasi-Delicts
Actions and Interdicts
Latin Maxims
Chapter IV Case Readings
V. Criminal Law and Family Law: The Christian Philosophers
Aquinas on Crime and Punishment
Restitution and Retribution
Conditions of Criminal Liability
Wojtyla’s Talks about Sex
The Sexual Partner as a Person
Pleasure and Love
The Meaning of Total Self-Giving
Dovetailing of Church and State
Separation of Church and State
Chapter V Case Readings
VI. Lex Mercatoria: From Custom to Law
Mansfield, the “Lord” of Commercial Law
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Philippine Commercial Laws, Copy and Paste
Chapter VI Case Readings
VII. Remedial Law: The Empirical Philosophers
Bacon’s Inductive Jurisprudence
Exhuming the Evidence: Hume’s on Presumptions and Probabilities
Probability and Improbability
Wittgenstein on the Game of Doubt
Chapter VII Case Readings
VIII. Political Law: Reform, Revolution, and Resistance The Neo-Classical Philosophers
Machiavelli: The Breach and the Practice of Politics
Hobbes on Sovereign Immunity
Justifying Authoritarianism
Thomas More on Republicanism and the Family as the Basic Unit of Society
The Familial State
The Rule of Law
Unlocking Inalienable Rights
The People’s Trust
Rousing Man to be Free
The General Will
The “Mill” of Happiness and Liberty
Freedom of Action and Thought
Utilitarianism
Being Useful
Civil Disobedience as a Duty
When Revolution is Right (and Ripe)
Chapter VIII Case Readings
IX. Labor Law: Socialism and Communism
The Red Revolution
Chapter IX Case Readings
X. Everyone “In”: Postmodernism and the Future of Law
Feminism, So She Says
First Wave Feminism
Second Wave Feminism
Third Wave Feminism
Rights of Mother and Child
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Foucault on “Other”
Civilization Makes Mad Hatters
The Prison Makes the Criminal
Engendering the Homosexual Class
Going Green: Philosophy of Ecology
Common, but Differentiated Responsibilities
Polluter Pays Principle
Intergeneration Equity
Precautionary Principle
Transboundary Harm
Sustainable Development
Technology Transfer
Rights of Indigenous People
Law, Quo Vadis?
Chapter X Case Readings
XI. The “X” Factors of Philippine Legal Paradigm
Duty, Interiority, and Community
The Filipino Family
Chapter XI Case Readings
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CHAPTER I
THE CASE FOR LAW
Law is nothing else but the best reason of wise men applied for ages to the transactions and
business of mankind.
— Abraham Lincoln, 16th U.S. President, lawyer
I. LEGAL WISDOM AND COUNSEL
Lawyers and philosophers can be counted among the most misunderstood species.
Shakespeare’s King Lear wishes all lawyers dead, while the film The Devil’s Advocate sees them
damned. “It’s a pyramid with Satan on top,” says Al Pacino on the legal system. Jonathan Swift’s
The Gulliver’s Travels accuses lawyers of being “the most despicable in common conversation”
who “pervert the general reason of mankind.” “Lawyer-liar,” so the pun goes.
Many lawyers are miscreants who supposedly murder the truth, who twist the law, who defend
the scum of society, and who are good in torturing the English language. See how society judges
lawyers as morally compromised, tempted, or hunted beings: from the classic To Kill a
Mockingbird, to John Grisham flicks, to the series The Practice and Suits, to The Exorcism of
Emily Rose.
Meanwhile, the philosopher is the rambling troublemaker, the sage who, unlike the lawyer,
cannot make a penny. Jose Rizal’s Pilosopo Tasyo is a classic mold. The philosopher’s reason —
or loss of reason — is his rule. He can ravage mankind by his thoughts, and laws were often the
end-fruit of his ideologies, if ever he finds a hearing.
In many ways, lawyers and philosophers can be good fellows that one can, or should be, both.
It is no accident that many Philosophy majors eventually take up law and many lawyers craft
their own philosophies. While the pilosopo gets around things by argument, the lawyer gets his
client off the hook by wordsmith. Both offer solace: the philosopher his wisdom, the lawyer his
counsel.
When a philosopher looks into court reports, he or she is not supposed to see dead texts, but
ideas, motives, context, and theories. In the film Hannah Arendt, a biopic of a German-Jewish
philosopher who reported for the New Yorker on the 1961 trial of a Nazi officer Adolf Eichmann,
Arendt introduced to her readers not only the drama of the courtroom, but the concept of
“Banality of Evil.” Evil ascends when we refuse to act with reason, when we follow orders
without thinking, when we refuse to be human.
If “philosophy” (from the Greek philos and sophia) means the “love” of “wisdom,” then
“philosophy of law” is the “love of the wisdom of the law.” A lawyer, therefore, is a lover. He is
a lover of the wisdom of the law. The lawyer-philosopher loves the law so much that he or she
wants to know its inner nature, features, history, and destiny. In return for this love, the lawyer is,
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hopingly, beloved by his clients. While some lawyers may only learn the black-letter rules,
philosopher-lawyers learn the whys of the law.
But, as there are many laws, there are also many thinkers behind the law. In this book, we will
focus on Philippine laws, general theories, and fundamental inquiries. The law itself is subject to
endless probing, such as: Do we need laws? Do we need more, or, less laws? What makes a good
law? A good State? What is justice? How did we arrive at our laws? When can we say that a
right is right? What laws can make us rich? Make us free?
To answer these and more, one has to appeal to one’s better wits and rational jurisprudence,
and this precisely is the role of legal philosophy.
II. LAW’S LIKES AND UNLIKE
He who dethrones the idea of law, bids chaos welcome in its stead.
— Horace Mann, Thoughts
Philosophers themselves have not always been positive about law. Philosophers, from Plato to
Marx, thought law institutionalizes the ills of society, an instrument for the status quo, which
complicates our rather simple life. Rules are the enemy of creativity and free thinking.
In the Gospels, Jesus Christ despised the legalistic Levites and Pharisees and summed up their
thousand laws into two. Postmodernists say that law is just a self-aggrandized construct that
perpetuates itself by citation after citation of maxims. If it lives by citation, it would die by noncitation. Even if we need to live by some crude law, lawyers are held to be unnecessary. John
Lennon, composer of the song “Imagine,” refused to write a song about lawyers. He must have
thought them dispensable in the ideal world.
In his The Idea of Law, Dennis Lloyd summed up the thoughts of philosophers on the question
of the necessity of law relative to the belief on man’s true nature. If man is basically good, as
Ovid and Seneca held, then he can be let alone without law. But if man is naturally vicious, as
the Chinese Legists argue, then he would need the tempers of the law. But then, if man is
intrinsically good, he could only make good laws. Good men make good laws. But if inherently
bad, he could only make bad laws.
Perhaps, man can either be one or the other, and so his laws can be “good” or “bad,”
“necessary” or “unnecessary,” or as Friedrich Nietzsche put it, “beyond good and evil.” The
Scholastic view draws a truce: man is naturally good but he is an imperfect creature. Thus, manmade law can be good but imperfect.
Granting that each man has his own will and reason, he is a sui juris — a law unto himself. He
can arguably get by without law. In solitude, we can live freely without laws. But as he goes on
dealing with other sui juris like himself, man has to make concessions, an agreement to live
under a common rule, a social contract. Thus, all societies appear to have some form of laws,
norms, or guidelines, no matter how elemental, and with these comes the need for someone who
can keep and elucidate them, i.e., some kind of a “lawyer.”
Humans need law because humans want order. We seek a systematic way of dealing with
others and with things. Laws are binding social rules on doing and undoing. From the most
primitive to the most advanced of human communities, there is an elder or an expert in the law,
regardless of whether it is a supernatural, shamanic, or positive law. Having laws, lawyers, and
an eventual socio-legal system seems to be the price for civilization. These are the cost of
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organizing people to ensure the satisfaction of common needs. Principles and conditions have to
be laid down to harmonize family relationships, economic and food-gathering activities, rights
and duties, and relations within and outside communities. As society globalizes, there develops
international law.
Even if we argue from the viewpoint of liberty, such as Jean Jacques Rousseau who taught that
man is naturally autonomous, still, man — against the exigencies of life — may need to be
“forced to be free,” and so there is a need for laws to secure his exercise of freedom and respect
for other’s freedoms. Thus goes for Democrats (a.k.a. Liberals) who advocate for more laws,
taxes, and regulations. The law shall set us free!
Of course, the law can also bind us and make the wheels of justice grind slow, as pointed by
Rizal in his Notes on Morga’s Sucesos de las Islas Filipinas on “cases that last an eternity
handed down from fathers to sons and grandsons.” Even if you are right, you have to speak the
language of the courts if you want to be heard.
As society advances, must law also advance to become more complex and intrusive? The
answer will depend on the political tendencies of the law. The Socialist party-line is “statism”:
more State intervention and welfare systems to have an equal and stable society and economy.
The State, in order to carefully plan society, must through law spread its hold from womb to
tomb. If we expect our politicians to care, then expect ordinances that would care about almost
everything. Meanwhile, a Republican conservative would argue for deregulation and less and
less laws. It’s no to Big Brother. People and entities must be empowered and let alone to flourish
through self-determination and hard work.
We should take heed from Sir Herbert Read: A society without law and order is the very
negation of society. Perhaps, the balancing act is a few, reasonable, and caring laws, a succinct
summation of commandments, away from technical artificialities. In the Utopia, Sir Thomas
More also wrote about a society with few laws, as it will be unjust to bind men to have too many
laws to read that are too obscure to be readily understood. Henry David Thoreau similarly started
his classic On the Duty to Civil Disobedience with the adage “government is best which governs
the least.”
Perhaps, too, we only need a few good lawyers. If Plato wished, as statesman, only the
“philosopher-kings” — the select few who could profound on reasonable laws and the
reasonability of things — then we could well wish for “philosopher-lawyers.”
III. SHOULD LAWYERS CAST THE PHILOSOPHER’S
STONE?
Every good law or case you study was once a dream. Every good law or case you study was
dismissed as impossible or impractical for decades before it was enacted. Give your creative
thoughts free reign, for it is only in the hearts and dreams of people seeking a better world that
true social justice has a chance.
— William “Bill” Quigley, Letter to a Law Student Interested in Social Justice
The practice of law can itself be a practice of philosophy. “Jurisprudence,” often associated
with “case law,” in fact means the theory and study of law. From the Latin juris and prudentia or
the “prudence of law” or “practical knowledge of the law,” jurisprudence is supposed to explain
the nature, theory, development, and objective of a law. It is to know the wisdom behind the law.
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Through jurisprudence, a law earns more credulity and force, as one understands not only the
what of the law, but the how and why of it. John Austin in The Uses and Studies of Jurisprudence
called jurisprudence as “the knowledge of law as a science, combined with the art or practical
habit or skill of applying it.”
What distinguishes an explanation or ratio of a case and an exposition of legal philosophy in a
case is that the latter explains the underlying concepts, theory, and evolution of a legal dispute.
U.S. Supreme Court Justice Oliver Wendell Holmes and Philippine Supreme Court Justice
Reynato S. Puno were among the legal luminaries who popularized writings and decisions
articulating philosophy and legal theory. In his “The Path of Law” (10 Harvard Law Review),
Justice Holmes advised the study of great philosophers and jurisprudents to understand how
compelling ideas become a controlling force in the development of laws. He lamented how some
members of the bench and the bar mechanically pedal the law and undervalue jurisprudence,
when effective legal order depends much on insightful legal philosophy.
Meanwhile, Justice Puno poured scholarship on the legitimacy of laws by tracing legal rational
discourses through Western civilization. Puno’s writings appear in a collection by former
Supreme Court spokesman Jose Midas Marquez titled, The Constitutional Philosophy of
Philippine Jurisprudence: The Writings of Senior Associate Justice Reynato S. Puno.
During the centenary of the Philippine Judiciary in 2001, the Supreme Court also released a
collection titled Supreme Court Decisions as Philosophy, edited by Supreme Court Associate
Justice Abraham Sarmiento. It culled major Supreme Court decisions elucidating on legal
doctrines, especially on political and human rights.
How jurisprudence — as legal philosophy — will be appreciated weighs heavily on how it is
being taught in law schools. Generally, law schools have been requiring Legal Philosophy or
Legal Theory as a course subject or an elective, and universities abroad offer postgraduate
masters and doctors degrees in the Philosophy of Law. Many law students pursue Philosophy or
Political Science as a pre-law course, too. Conversely, Philosophy students take Legal and
Political Philosophy as a major field of study in their undergraduate and postgraduate courses.
It is not incidental that some lawyers have been great progenitors of schools of thought. In
England, there was Lord Chancellor Francis Bacon, the father of the inductive scientific method.
There was also the British lawyer and journalist Lord John Campbell; Edmund Burke, the
founder of modern conservatism; and Jeremy Bentham, the founder of modern utilitarianism. In
France, there was Hugo Grotius, the father of modern international law; and Charles Louis
Secondat Baron de Montesquieu, who conceived the three divisions of government. In the United
States, the Founding Fathers who happened to be lawyers were also political theorists. In India,
there was Mohandas K. Gandhi, known for popularizing non-violent resistance.
In the Philippines, we had Apolinario Mabini, the prime minister of the first Philippine
Republic, referred to as the “Brains of the Revolution”; and Marcelo H. Del Pilar, the
propagandist editor of the La Solidaridad who worked for the Royal Audiencia de Manila, the
highest tribunal in the Philippines during the Spanish period.
While the School of Athens was known for its triumvirate of Socrates, Plato, and Aristotle, the
University of Oxford since the 70’s has revived debates on legal theory with its own triumvirate
professors in law, namely H.L.A Hart (champion of soft positivism), Ronald Dworkin (proconstructivism), and John Finnis (pro-neo-Thomism).
Currently, the Philippine Judicial Academy has devoted a division of continuing legal
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education in philosophy chaired by Fr. Ranhillo Aquino, Dean of the San Beda Graduate School
of Law. Other advocates of legal philosophy in the Philippines include Justice Crisolito Pascual
and Emmanuel Fernando of the University of the Philippines; Justice Jorge Coquia of the
University of Santo Tomas; and Sen. Miriam Defensor-Santiago, who wrote on international law
and the history of philosophy.
While it is necessary to pursue the degree of Law to be a lawyer, it is not true that one needs to
take a degree in Philosophy to be a philosopher. A penetrating decision or argumentation,
streamed with deep analysis, reflection and research, is itself a gem of philosophic intuition. The
latter satisfies the question not just what the law is, but ultimately, why the law must be so. Its
exercise is a commitment not just in theory, but to a meaningful life and a purposeful practice of
law.
CHAPTER I CASE READINGS
A PHILOSOPHER-JURIST ON THE STRUGGLE FOR LAW
PIO DURAN v. SALVADOR ABAD SANTOS
(G.R. No. L-99, November 16, 1945)
PERFECTO, J., dissenting:
At this moment we cannot refrain from repeating the words the outstanding philosopher-jurist
Jhering wrote in his little big book, “The Struggle for Law”:
“ ‘I crave the law.’ In those four words, the poet has described the relation of law in the
subjective, to law in the objective, sense of the term meaning of the struggle for law, in a manner
better than any philosopher of the law could had done it. These four words change Shylock’s
claim into a question of the law of Venice. To what mighty, giant dimensions, does not the weak
man grow, when he speaks these words: It is no longer the Jew demanding his pound of flesh; it
is the law of Venice itself knocking at the door of Justice; for his rights and the law of Venice are
one and the same; they both stand or fall together. And when he finally succumbs under the
weight of the judge’s decision, who wipes out his rights by a shocking piece of pleasantry, when
we see him pursued by bitter scorn, bowed, broken, tottering on his way, who can help feeling
that in him the law of Venice is humbled; that it is not the Jew, Shylock, who moves painfully
away, but the typical figure of the Jew of the middle ages, that pariah of society who cried in
vain for justice? His fate is eminently tragic, not because his rights are him, but because he, a
Jew of the middle ages, has faith in the law — we might say just as if we were a Christian — a
faith in the law firm as a rock which nothing can shake, and which the judge himself feels until
the catastrophe breaks upon him like a thunderclap, dispels the illusion and teaches him that he is
only the despise medieval Jew to whom justice is done by defrauding him.
“The picture of Shylock conjures up another before may mind, the no less historical than
poetical one of Michel Kohlhaas, which Heinrich von Dleist has described in his novel of that
name with all the fascination of truth. Shylock retires from the scene entirely broken down by
grief; his strength is gone and he bows without resistance to the decision of the judge. Not so
Michel Kohlhaas. After every means to obtain his rights, which have been most grievously
violated, has been exhausted; after an act of sinful cabinet — justice has closed the way of
redress to him, and Justice herself in all her representatives, even to the highest, has sided with
injustice, a feeling of infinite woe overpowers him at the contemplation of the outrage that has
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been done him and he exclaims: ‘Better be a dog, if I am to be trampled under foot, than a man’;
and he says: The man who refuses me the protection of the law relegates me to the condition of
the savage of the forest, and puts a club in my hand to defend myself with.” He snatches the
soiled sword out of the hand of such venal Justice and brandishes it in a manner that spreads
consternation far and wide through the country, causes the Sate to shake to its very foundations
and the prince to tremble on his throne. It is not, however, the savage feeling of vengeance that
animates him; he does not turn murderer and brigand, like Karl Moor, who wishes “to make the
cry of revolt resound through all nature to lead into the fight against the race of hyenas, air, earth
and sea,” whose wounded feeling of justice causes him to declare war against all humanity; but it
is a moral idea which urges him forward, the idea that “it is his duty to entire world to consecrate
all his strength to the obtaining of satisfaction and to the guarding of his fellow-citizens against
similar injustice.” To this idea he sacrifices everything, his family’s happiness, the honor of his
name, all his earthly possessions, his blood, and his life; and he carries on no aimless war of
extermination, for he directs it only against the guilty one, and against all those who make
common cause with him. At last, when the hope of obtaining justice dawns upon him, he
voluntarily down his arms; but, as if chosen to illustrate by example to what depth of ignominy
the disregard of law and dishonor could descend at that time, the safe conduct given him, and the
amnesty are violated, and he ends his life on the place of execution. However, before his life is
taken from him justice is done him, and the thought that he has not fought in vain, that he has
restored respect for the law and preserved his dignity as a human being, makes him smile at the
horrors of death: and, reconciled with himself, the world, and God, he gladly and resolutely
follows the executioner. What reflections does not this legal drama suggest: Here is an honest
and good man, filled with love for his family, with a simple, religious disposition, who becomes
an Attila and destroys with fire and sword the cities in which his enemy has taken refuge. And
how is this transformation effected? By the very quality which lifts him morally high above all
his enemies who finally triumph over him; by his high esteem for the law, his faith in its
sacredness, the energy of his genuine, healthy feeling of legal right. The tragedy of his fate lies in
this that his ruin was brought about by the superiority and nobility of his nature, his lofty feeling
of legal right, and his heroic devotion to the ideal law, which made him oblivious to all else and
ready to sacrifice everything for it, in contact with the miserable world of the time in which the
arrogance of the great and powerful was equaled only by the venality and cowardice of the
judges. The crimes which he committed fall much more heavily on the prince, his functionaries
and his judges who forced him out of the way of the law into the way of lawlessness. For no
wrong which man has to endure, no matter how grievous, can at all compare, at least in the eyes
of ingenuous moral feeling, with that which the authority established by God commits when
itself violates the law. Judicial murder is the deadly sin of the law. The guardian and sentinel of
the law is changed into its murderer; the physician strangles his ward. In ancient Rome, the
corrupt judge was punished with death. For the justice which has violated the law there is no
accuser as terrible as the sombre, reproachful form of the criminal made a criminal by his
wounded feeling of legal right — it is its own bloody shadow. The victim of corrupt and partial
justice is driven almost violently out of the way the executor of his own rights, and it not
infrequently happens that, overshooting the mark, he becomes the sworn enemy of society,
robber and a murderer. If, like Michael Kohlhaas, his nature be noble and moral, it may guard
him satisfaction. Here the struggle for law becomes a criminal, and by suffering the penalty of
his crime, a martyr to his feeling of legal right. It is said that the blood of martyrs does not flow
in vain, and the saying may have been true of him. It may be that his warning shadow sufficed
for a long time to make the legal oppression of which he was victim an impossibility.
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“In conjuring up this shadows, I have desired to show by a striking example how far the very
man whose sentiment of legal right strongest and most ideal may go astray when the
imperfection of legal institutions refuses him satisfaction. Here the struggle against the law. The
feeling of legal right, left in the lurch by the power which should protect it, itself abandons the
ground of the law and endeavors, by helping itself, to obtain what ignorance, bad will, or
impotence refuse it. And it is not only a few very strong and violent characters, in which the
national feeling of legal right raise its protest against such a condition of things, but this protest is
sometimes repeated by the whole population under certain forms, which according to their object
or to the manner in which the whole people or a definite class look upon them, or apply them,
may be considered as popular substitutes for, and accessories to, the institutions of the state.”
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CHAPTER II
LEGAL ISSUES AND THEORIES
There are seven blunders that human society commits and cause all the violence: wealth
without work, pleasure without conscience, knowledge without character, commerce without
morality, science without humanity, worship without sacrifice, and politics without principles.
— Mohandas Gandhi, Indian nationalist and English barrister
I. THE FOUR ELEMENTS
“Law” connotes binding communal rules — the dos and the don’ts. It has been classified
mainly into jural and non-jural. Jural or human law refers to sanctioned or enacted law such as
statutes, case laws, normative rules, and precepts. Meanwhile, non-jural or meta-legal law is not
anchored on human promulgation, such as divine law, natural law, and physical law.
Divine law proceeds from sacred writings such as the Bible or the Qur’an, backed up by faith.
Natural law, as will be discussed further, is the law of our human nature, based on the demands
of our humanity. Finally, physical law refers to the mechanical laws of the universe. Examples
are the laws of gravity by Galileo, or the Newtonian mechanics, or Einstein’s law of relativity.
Non-jural laws are the concerns of theologians, scientists, and physicists.
The concern of lawyers is jural law, and to the extent of pointing its possible origin and
propriety as a right or duty, also non-jural natural law. It is in this practical sense that we ask,
“What is law?”
A Philippine case answers that “law in its specific and concrete sense is a rule of conduct, just,
obligatory, formulated by legitimate power for common observance and benefit.” (Lapitan v.
Philippine Charity Sweepstakes Office, 60 O.G. 6841; 4 C.A.R. (2s) 704). This is the standard
Classical definition of law, the Sanchez Roman definition that echoes Thomas Aquinas.
In his Summa Theologica (“S.T.”) I-II, Q.90, A.4, Aquinas explained that “law is an ordinance
of reason ordered towards the common good, promulgated by him who has charge of the
community.” The four magic elements being: (1) reasonable ordinance (rationis ordinatio), (2)
for the common good (bonus communis), (3) promulgated, (4) by legitimate authority.
If any of these elements is absent, a “law” is not really a law and need not be observed. Civilist
Justice Edgardo Paras similarly defined positive law as “a reasonable rule of action expressly or
directly promulgated by competent authority for the common good, and usually, but not
necessarily, imposing a sanction in case of disobedience” (Civil Code of the Philippines
Annotated I, 3). Arturo Tolentino also defined law in its “specific sense” (Spanish term “ley”) as
“a rule of conduct, just obligatory, promulgated by legitimate authority, and of common
observance and benefit” (Commentaries and Jurisprudence on the Civil Code of the Philippines
I,1).
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Max Weber’s definition in Law in Economy and Society identifies law as a legitimate order:
“An order will be called law if it is externally guaranteed by the probability that coercion
(physical or psychological), to bring about conformity or avenge violation, and will be applied
by a staff of people holding themselves especially ready for that purpose.”
For Weber, the basic features of law that distinguish it from customs and conventions are: (1)
the duty to comply, (2) due to external actions or threats, (3) by individuals tasked to enforce the
law. In contrast, there is no sense of duty in customary rules of conduct or “usages.”
Conventions, meanwhile, are agreements that parties have a duty to follow in good faith, but
without a corollary punishment when disobeyed. These are often referred to as “soft law.”
The classical elements of law are discussed below.
Reason and the Common Good
The Law . . . is perfection of reason.
— Sir Edward Coke, Institutes: Commentary upon Littleton
Law is a rule of human acts, commanding man to act or refrain from acting (Summa
Theologica [S.T.], I-II, Q.90, A.1). The measure of human acts is human reason, for it is by
reason that we perceive and put order into things. A reasonable law is necessary, useful, clear in
expression, and adapted to place and time (S.T., I-II, Q.95, A.3). The people are moved to follow
the law when it is reasonable. If the law is unreasonable, it would only invite defiance and
dissent.
Principles of basic humanity transformed once purely ethical norms into legal claims.
Tolentino described that law in its general sense (Spanish term “derecho”) as an abstract
“science of moral rules, founded on the rational nature of man, which governs his free activity
for the realization of individual and social ends, of a nature both demandable and reciprocal”
(Commentaries and Jurisprudence on the Civil Code of the Philippines I,1).
This does not mean that all ethical norms should be law, but only those rules concerning man
with his fellow man. After all, as Tolentino argued, the field of morals is more extensive than
law. Aquinas, too, believed that law can only govern external moral conduct, not internal or
private morality. The end is that the law should observe and promote public morality that
concerns the common good.
The common good need not be the utilitarian ethic of “the greatest happiness for the greatest
number.” Rather, it is the good of everyone. It bears the common aspirations of all, not just the
majority. Still, majoritarianism argues that although the majority opinion can be fallible, it is still
the best way to arrive at the most reasonable terms as more heads are better than one; that there is
more intelligence, experience, and wisdom in number. Further, as Aquinas suggested, the
lawmaker should frame the law according to how the subject matter commonly occurs in the
majority of instances. It is not expected that the legislator should assume every single case
possible, but should leave room for exceptions when the law need not be strictly applied (S.T.,
Q.96, A.6).
We should be careful, though, to distinguish popular morality or popular good from the
common public good. A law can be a valid public order — reasonable and fair to all — although
it may be unpopular to many.
Promulgation and Authority
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Some things are easier to legalize than to legitimate.
— Nicolas Chamfort
The final step in the law-making process is its notice to the public. The public should be able
to take notice of the law, whether by publication or by hear yeas as a matter of due process.
Tañada v. Tuvera based on Article 2 of the Civil Code ordains that Philippine laws should
take effect fifteen days after completion of their publication in the Official Gazette or in a
newspaper of general circulation. Once decreed, it is the citizen’s duty to keep abreast of the law
and his ignorance will not excuse him from non-compliance. This requirement is supposed to
address the injustices under President Ferdinand Marcos, who used to issue decrees with short
notice, so that target subjects could be easily put to jail. In the ancient times, Suetonius also
wrote of the tyrant Roman emperor Caligula, who was known for proclaiming laws and taxes
without posting, and if laws were ever posted, notices would be placed in isolated places, or
would be hung up high, or written in excessively small letters, so that no one could read them.
Due promulgation must come from a competent authority, not from some private individual or
public official unauthorized to enact a law. Law must be issued by one who takes charge of the
community, who wields the power to promote the common interest.
Modern Standards for a Rule of Law
In The Morality of Law, Harvard Law professor Lon Fuller enumerated the “Eight Routes of
Failure” for any legal system. Avoiding these pitfalls will ensure the internal or procedural
morality of law, so that there is “reason” in legal ordering. The eight things to check out are:
1. The lack of definitive rules or law, so that disputes have to be decided ad hoc.
2. Failure to publicize or make known to the affected party the rules.
3. Unclear or obscure legislation.
4. Retroactive legislation.
5. Contradictions in the law.
6. Demands that are beyond the power of affected parties to observe.
7. Unstable legislation or frequent changes in the law.
8. Discrepancies between adjudication/administration and legislation.
Meanwhile, in the 2004 Report of the Secretary-General on the Rule of Law and Transitional
Justice in Conflict and Post-Conflict Societies, the UN Secretary General Kofi Annan defined
what constitutes “rule of law” in the modern international arena:
For the United Nations, the rule of law refers to a principle of governance in which all persons,
institutions and entities, public and private, including the State itself, are accountable to laws that
are publicly promulgated, equally enforced and independently adjudicated, and which are
consistent with international human rights norms and standards. It requires, as well, measures to
ensure adherence to the principles of supremacy of law, equality before the law, accountability to
the law, fairness in the application of the law, separation of powers, participation in decisionmaking, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
II. SPECIES OF HUMAN LAW
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Law is made by the winner to preserve victory over the loser.
— Toba Beta, Betelgeuse Incident
As to whether a right or a procedure is given, jural law may be classified into substantive or
remedial. Substantive law establishes rights, duties, and corollary prohibitions. Remedial or
procedural or adjective law prescribes the manner of administering, enforcing, appealing,
amending, and using legal rights and claims.
As to scope, law can also be categorized into public and private law, and further into criminal,
civil, and mercantile law. Public or political law is concerned with the structures of government,
the relationship between the individual and the State. Violation of public order through
punishable acts or omissions is under criminal law. Private law, on one hand, is concerned with
the rules governing the relationship of individuals. If for private ends, it is governed by rules
provided in civil law or the rules of civility such as on property, marriage, succession, contracts,
and torts or private wrongs that result in damages. If dealing with artificial personalities such as
corporations and the management of business, mercantile law regulates commercial transactions.
The civil code system refers to a legal system based on coded laws. Laws are codified through
parliamentary statutes, following the tradition of compiling rules such as the Code of Hammurabi
or the Babylonian Law Code (c. 1772 B.C.) and the Justinian Code or the Roman Law Code (6th
century A.D.). French, Germanic, and Hispanic countries have legal codes based on Roman law
and their national customs.
Meanwhile, the common law system is based on case law or judge-made law that relies on
precedents set by judges in a court case. It is characteristic of English-speaking countries such as
Britain, United States, Canada, Ireland, Australia, and India. The Philippines, which experienced
both Hispanic and American occupations, has a mixed system. Laws are enacted by legislation,
which are interpreted, developed, and applied by the courts, whose decisions are considered part
of the law of the land.
Islamic law or Sharia law (“the way to follow”) is based on the moral precepts of Islam.
Muslim countries such as Saudi Arabia, Iran, and Pakistan are considered “Islamic states” as
they base their law purely or mostly on Sharia; while moderate Muslim countries, such as in the
South East and Turkey, follow a more liberal mixed system of Western and Islamic laws.
Islamic law is derived from four sources: (1) the Qur’an, or the word of God as given to the
prophet Muhammad; (2) the Sunna, or the sayings and acts of Muhammad according to tradition
or hadith; (3) the judicial consensus of Islamic judges (qadis), following the historical consensus,
similar to common law precedents, of religious scholars (ulama); and (4) Analogical reasoning,
used in circumstances not provided in the other sources. An example would be the crime of
sodomy which is punishable with death by stoning, as much as adultery is expressly punished in
the Qur’an. Stones are first thrown by the witnesses, then by the judge, then by the community.
Crimes are also punishable by multiple lashes, or by application of the principle of “an eye for an
eye” (lex talionis), or by amputating the instrument of criminality, such as the hand in theft.
Under a Sharia court, the rules of evidence prioritize oral testimony of at least two witnesses,
preferably by Muslim males. There is no need for a lawyer or a jury. Plaintiffs and defendants
represent themselves. There is no pre-trial, modes of discovery, or cross examination of
witnesses. Forensic and circumstantial evidence are rejected in favor of eyewitnesses.
Islamic law maintained much of Middle Eastern agricultural, rural, and pastoral laws and
practices, akin to Judeo-Christian religious legal systems during the Old Testament times down
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to the Medieval Period.
III. MAIN ISSUES IN LAW
Law, Authority, and Force
Justice, without force, is impotent.
— Blaise Pascal, Pensees
How does one become a legal authority and is authorized to make laws?
According to Max Weber, in Politics as a Vocation, there are three ways how authority
establishes itself in society: charisma, tradition, and law. Weber referred to “charisma,” meaning
“grace” in Greek, as the personal ascendancy that an individual gains in a society through his
passion and determination for a cause or a mission, and his success gives him an aura of
legitimacy. Through skills and persuasion, charismatics exude a mass hypnotic effect. For good
or bad, the list includes the likes of Alexander the Great, Julius Caesar, Napoleon Bonaparte,
Adolf Hitler, and Josef Stalin.
The second form, by tradition, is where the authority from a leader, due to his magnanimity or
extent of influence in a society, is passed on to his successors or heirs. Society has made the
leader its center and identity, and will want to keep him alive through his descendants who
suppose to bear his qualities. Founders are usually given this entitlement and their influences are
institutionalized through forms of monarchies, dynasties, or petty kingdoms.
The third form, through the legal dominion, is impersonal. The officers operate through
institutions, under given terms, periods, and conditions. They have to be professional and not to
personally favor or receive favor from anyone. Laws are legitimate if they are enacted according
to rules of procedure and individual merit.
Enforcing Law
Should law be coercive to be enforceable? Can tough laws spare the rod?
Anarchists think that any form of violence or coercion is wrong and offends morality; that the
only real law must be consensual, which appeals to the conscience and free will of constituents,
not to threats of punishment.
For followers of Confucius, the ingredients to prevent and arrest crimes are not stern
punishments but a sense of shame for misbehavior, cultivation of virtue, education on right and
wrong, respect for authority, and the elderly showing of good examples.
Social contract theorists, meanwhile, think that constraint is necessary and moral, since society
is presumed to have given consent to follow the law in establishing a Constitution and a Big
Brother — the State. Through election and suffrage, citizens are able to renew this consent and to
amend the terms through the representatives they vote for. Anyone who does not wish to follow
the law can opt to leave the State, be a fugitive, and live in a lawless society, if there is any.
Shape up or ship out.
The psychologist Sigmund Freud observed that reward and punishment are needed for
discipline; the way a child needs to be trained, so does society. The machinery of regular
enforcement, police presence, and organized coercion are there to ensure that society can
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effectively pursue its policy, and in the process, direct itself from irrational, unproductive, and
anti-social impulses.
Under international law, states are tempered from using force against each other since every
member of the international community is by principle given equal status and consideration in
domestic policies. States are presumed to be civilized, matured, self-determining, and
independent. Coercion of a whole nation will be problematic since this may entail large-scale
oppression, including innocent citizens who do not have anything to do with their national
policies. For example, the embargo of goods against a belligerent nation will have its primary
impact on its citizens who need the basic services. At the international level, global opinion and
social pressure may be the best means of dissuading a state from its acts, so that respect for its
sovereignty is maintained.
In a developed society, law is followed simply because it is the law. The use of violence is
hardly resorted to. Individuals in their own right are also being considered as sovereign and sui
juris — as objects and not just subjects of law. Individuals can now, under some instances, even
sue against states. The emphasis has become consent, rehabilitation, probation, and settlement,
instead of incarceration and punishment, for transgressing the law.
Law and Mores
“Are you planning to follow a career in Magical Law, Miss Granger?” asked Scrimgeour.
“No, I’m not,” retorted Hermione. “I’m hoping to do some good in the world!”
— J.K. Rowling, Harry Potter and the Deathly Hallows
What is legal is not necessarily moral and what is moral is not necessarily legal. Indeed, a
moral obligation does not establish a juridical or legally enforceable tie. Still, even when there is
no absolute correspondence between law and morality, there is still a relation recognized by law
itself between law and morality. In fact, moral customs are among the sources of law.
According to Tolentino, “laws and morals have a common ethical basis and spring from the
same source — the social conscience.” (Commentaries and Jurisprudence on the Civil Code of
the Philippines I, 3). Citing Colin and Capitant, Tolentino described law and morals as “two
intersecting circles, with many principles in a common zone, and yet with some principles of one
at variance with those of the other.”
Articles 19, 20, and 21 of the Civil Code provide that every person must act with justice (i.e.,
to give everyone his due), observe honesty, and indemnify acts contra bonus mores (through
moral damages). The Code Commission acknowledged that Article 21 addresses victims of
moral wrongs in the face of the impossibility of enumerating all wrongs that can cause damage.
The Code Commission noted: “It may be asked, would not this article obliterate the boundary
line between morality and law?” The Commission replied: “The answer is that, in the last
analysis every good law draws its breadth of life from morals, from those principles which are
written with words of fire in the conscience of man.”
A contractual obligation is considered void when it has an illicit cause. It is illicit if contrary
not just to law, but also to “morals, good customs, public order or public policy” (Art. 1352).
Notice the order — law, then morals, then good customs, then public order or policy. Morals,
“good” customs, and public order remain unenforceable until recognized or taken notice by law,
and violation or non-observance of the law “shall not be excused by disuse, or custom or
practices to the contrary” (Art. 7).
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This preeminence given to law in terms of observance (not necessarily in terms of
metaphysical importance) recalls the Socratic approach in case morals or customs conflict with
the law, the latter being presumed valid and moral. Socrates replied to his friend Crito that it is a
citizen’s duty to persuade the State of the moral error of a law; otherwise, it is his duty to regard
it. Such is why Socrates would rather accept Athens’ verdict of death penalty even if he thought
it was unreasonable, rather than skit the law and encourage lawlessness. He had to accept the
verdict of law, having failed to convince society of its error.
But it would be a different story if a law is patently immoral and irrational, at the expense of
human life and dignity, such as Nazi laws. Laws are made for man, not man for laws. In cases
where the most basic rights of man are violated, civil disobedience would be justified. Although
moral norms and established customs are unenforceable without law, it would also be difficult to
enforce a law that is morally unacceptable. For instance, the case of Roe v. Wade that legalized
abortion in the U.S. remains under constant legal challenge for violating the right to life from
conception.
Harvard Law professor Lon Fuller, author of The Morality of Law, argued that the law has an
“internal and external morality.” It cannot be a one-way imposition since the cooperation of the
citizen is needed. The law has been the citizen’s refuge because it is supposed to protect them
from the most perverted regimes, cruelties, and inhumanities. The people produce law because
they have moral aspirations and duties they want to achieve.
Laws “derive their efficacy from a general acceptance, which in turn rests ultimately on a
perception that they are right and necessary,” Fuller wrote in Positivism and Fidelity to Law: A
Reply to Professor Hart. A deterioration of the morality of society will result into a deterioration
of law, and vice versa. Fuller argued that law practitioners are even subject to a code of ethics
governing their conduct to clients, fellow lawyers, courts, and the public, proof that there are
moral principles and standards to follow even in matters of procedure.
The stirrings of moral reasoning also play an important role in the direction of legal reforms
and in demanding obedience to a law without resorting to punitive and onerous measures. Dennis
Lloyd said that appeals to conscience and civilized morality will eschew the need for force.
Religious/Sectarian vis-à-vis Secular/ Public Morality
By “morality,” there is a distinction between secular morality and religious morality. In states
where there is no separation between Church and State, such as Islamic states and the Vatican,
the law must reflect what is considered moral by the established religion. For instance, as a
concession to the Autonomous Region of Muslim Mindanao, the Code of Muslim Personal Laws
is a form of legislation based on the religious morality of Islam.
For states that follow the non-establishment clause, such as, ideally, the Philippines, a secular
morality known as “public morals” are considerations of the law. It is a morality not based on
religion but on popular ideals, sources of law, and common aspirations as expressed in policies.
Obedience to the law of the state is itself a principle of secular morality.
The term “ethics” is used to refer to secular standards of responsibility and accountability
specific to professional areas of practice, such as “the ethics of business.” Defining ethics, Albert
Schweitzer, in the Civilization and Ethics, wrote: “Ethics, too, are nothing but reverence for life.
That is what gives me the fundamental principle of morality, namely, that good consists in
maintaining, promoting, and enhancing life, and that destroying, injuring, and limiting life are
evil.”
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Another distinction between secular and religious morality is that the former, being public,
concerns itself with public order and affairs, while the latter is also concerned with private
matters and preferences, such as sexuality, and the censorship of ideas and beliefs.
Secular morality is associated with “natural law morality” according to common-held
principles of reason, justice, and equity, deemed as “natural” aspirations of men. The ancient
Greeks put their faith in a rational order of the universe knowable by any rational man, without
need of mysticism or divine revelation.
For naturalist philosophers like Voltaire, a true morality is a universally acceptable morality.
“All sects are different, because they come from men; morality is everywhere the same, because
it comes from God,” Voltaire said. The interpretation of natural law, which was once a province
of religion, has geared more to the explanation of the sciences and rational analysis.
On one hand, religious morality’s ultimate basis is the Word of God as expressed through a
sacred medium, such as the Bible for Christians, the Qur’an for Muslims, the teachings of the
Church for Catholics, and of the Dalai Lama for Buddhists. Earlier societies thought of law as
having a divine or celestial origin, the lawgiver having a prophetic status like Moses or
Muhammad, and rulers possessing a divine right to be kings.
An example of religious morality is the Ten Commandments, such as the commandment to
keep the Sabbath day holy. Of course, some of these commandments are also prohibited by
secular morality, such as the prohibition on killing, false testimony, adultery, and theft.
Religious morality as basis of law can work in theocratic tight-knit societies. But it can
discriminate against other religions and tends to orthodoxy, superstition, or fundamentalism. On
one hand, religious morality has the guarantees of stability, consistency, and internal appeal to
the will or conscience of a person, so that even with the lack of law enforcement, the citizens will
still refrain from doing an act that they believe will invite divine wrath or karmic return.
Some activities prohibited by religious morality, such as artificial contraception for the
Catholic Church, may be approved by secular morality. The reverse can also happen, where an
activity permitted by religious law, such as marrying up to four wives for Muslims, may be
banned by secular morality, like in Muslim Turkey. Public morality can also create new offenses
such as cyber crimes not touched by religious morality.
Since the sources of law include customs, law can be influenced by the majority religion.
When a religious morality is no longer customary though, it will cease to have a bearing on law.
Alternatively, religion may convince the public of the wrongfulness of an act, which must pass
the test of public argumentation and expression so that it can become public secular morality first
and eventually become law. An example of this is the law on human cloning, which started as a
religious conundrum on the right to human individuality and was eventually banned by the
international community. In areas that are both prohibited by secular and religious morality,
standards of conduct are doubly reinforced, and Church and State can find cooperation and
common ground.
Law, Justice, and Equality
All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a nonArab has any superiority over an Arab; also a white has no superiority over black nor a black
has any superiority over white except by piety and good action.
— The Last Sermon of Muhammad (Khutabul Wada)
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The legal system has been symbolized by Lady Justice, the blindfolded lady bearing the scales
in all majesty. The embodiment of law has been Justice itself. But what is justice? Is justice the
same as equality? Must Lady Justice always balance the scales?
When we use the term “just,” giving to the other “what is right and just,” we think of the
propriety and sufficiency of the act, more than its equalizing effect if the situation is not equal in
the first place.
For example, we give a laborer who works for longer hours more wages than one who works
half day. It will be unjust to treat them equally by giving them equal pay. But the basis for the
computation of wages for both full and half-day workers must be a common figure, such as a
per-hour basis. Justice, then, is “equality in proportion,” to render to each what is due (S.T., II-II,
Q.58, A.11). Justice is to give what one deserves according to the same standard, measure, or
formula.
On the basis of the same standard, provisions will not be equal if the circumstances are not
equal, but must be equal if the circumstances are the same. In any case, everyone must be given
the equal opportunity to measure up, sometimes referred to as “legal or formal equality.” The law
is applied equally to all persons without fear or favor. Thus, the same punishment is imposed on
a rich man and a poor man because wealth is not a valid differing standard under the law.
This is where reasonable classification comes in. Everyone classified as belonging to the same
category is to be treated the same way. Like shall be treated alike. Unlike shall be treated unlike.
Things that are fundamentally different cannot be treated the same. Lady Justice cannot be blind
of distinctions. Equality does not have to mean same treatment, but “proportionate treatment.”
If by a reasonable standard, one has to separate the sheep from the goat, one has to treat them
differently, then this will be just. Again, there must be reasonable standard for classification, a
general and necessary rule to qualify or disqualify; otherwise, the classification is
“discriminatory.”
Egalitarianism
The statement “all men are born equal” refers to one’s humanity, meaning, we are all equal in
terms of being human, and the rights pertaining to the fact of being human, regardless of status.
We belong to the same human species and whatever race we are from, we can all interbreed.
This does not mean that all men are born in equal conditions and will live equally. Honors,
incentives, and privileges in life will grace the deserving. Special arrangements, however, may
be made to eliminate or minimize historical or cultural disadvantages resulting from conditions
that we do not have choices, such as gender, being born to poverty, handicaps, race, religion, or
color.
Equality before the law is a universal enfranchisement so that everyone will at least have the
“equal chance” to develop as any other human will do. Life is not fair indeed, but since man,
despite the inequities of life, aspires for fairness and a more just society, he must make equality a
goal (“egalitarianism”).
In his Speech at Springfiled, Abraham Lincoln explained that the Declaration of Independence
was “intended to include all men, but they did not intend to declare all men equal in all respects.”
That “men are created equal” means “equal with certain unalienable rights, among which are life,
liberty, and the pursuit of happiness.” A negro slave may at that time not be equal to the white
man in many respects, Lincoln continued, but “in the right to put into his mouth the bread that
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his own hands have earned, he is the equal of every man.” Thus, “if God gave him little, that
little let him enjoy.”
The Blindfold of Justice
In A Theory of Justice, John Rawls proposed that we should do a “reflective equilibrium”
whenever we make laws or decisions. We must imagine ourselves, he said, under a “veil of
ignorance” unaware of our place in society. It is Rawl’s version of the blindfold of justice.
Imagine that you are about to be thrown into a life that you do not have a choice. Before the
die is cast, you would wish that chances be maximized for everybody so that in whatever
position or kind of life you might end up into, the worst would still be livable.
This is the “original position.” In making choices, think that you would randomly fit into
anyone’s shoes. This way, you would make it a point that everyone would get a fair chance.
Since you could end up being anyone, you would wish a little of something for everyone.
Because of the original position, you would favor substantial wages, human rights, social
security, and general welfare so that if you become anyone, you could still experience a dignified
life. Rawls’ paradigm is an after-life consequence for reincarnationists, who believe that in the
next life, we would fully experience the very joys and sufferings that we caused others.
For Rawls, those who are naturally talented and advantaged must treat their inborn conditions
as common assets of society. As much as those who are biologically handicapped do not
necessarily deserve their disadvantages, in reverse, those who are talented and wealthy do not
necessarily deserve their advantages and must make efforts to share their luck. Social
cooperation increases standards of living and everyone, including the giver, will be benefitted by
a distribution of happiness. Inequalities are justified only where the less fortunate will be
improved. Institutions exist to correct the inequalities and injustices in the world. A fair society
must be a just social contract between the state and individuals that redistribute goods as
necessary.
Meanwhile, Ronald Dworkin proposed that society must meet the “envy test,” where no
person will envy another based on mere circumstances or lot in life. We will be the sum of our
choices. Whatever differences in life we have will be the result of our own preferences, attitudes,
behaviors, temperaments, or choices, the way auctions are conducted. You can raise the stakes in
an auction, and you can refuse to bet at all, but you will be given a chance nevertheless. Each
person pays the costs of his choices and will have his preferred bundle of goods. This is a just
distributive scheme, but allows inequality based on personal determination and dream.
For Robert Nozick, who developed the “entitlement theory,” people are entitled to the things
they earned, worked for, or produced. They are also entitled to bequeath the same to others, such
as to their families. It is a fact of life that “things do come into the world already attached to
people having entitlements over them,” Nozick argued in Anarchy, State, and Utopia. These
entitlements may not be seized upon even if it is to provide equality of opportunity to others. Just
distribution is met whenever a person has satisfied the legal entitlements to acquire or to be a
transferee of a property, so long it was not stolen, seized, or gained through fraud of others. If a
property was legally acquired, it may not be seized by the government for redistribution.
However, as vast holdings may actually perpetuate inequalities, Nozick at least proposed in
The Examined Life that inheritance taxes may be imposed, without preventing the valid
transferees from using their property as capital for personally earned wealth as their just
entitlement.
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Law on Property and Economics
Communism forgets that life is individual. Capitalism forgets that life is social, and the
kingdom of brotherhood is found neither in the thesis of communism nor the antithesis of
capitalism but in a higher synthesis. It is found in a higher synthesis that combines the truths of
both.
— Martin Luther King Jr., Where Do We Go From Here?
The law can make you a millionaire tomorrow. It can also make you a street rat overnight.
Economic policies, based on laws on property, can drive markets and trade as much as these
can kill industries. Whether or not you are employed right now, or running a successful business,
or making much money, or living the full life, of can be the consequence of commercial laws.
Capitalist countries economically differ from Communist countries, and Protestant states from
the Catholic and Islamic, because people’s ideology, beliefs, and perception on work and money
eventually become law and frame the economic agenda. The values we put into property and
prosperity already spell much difference in economic pursuits.
Max Weber’s The Protestant Ethic and the Spirit of Capitalism argues that the Protestant’s
value for hard work, personal enrichment as a “calling,” and prosperity as a sign of divine favor,
made Protestant states richer; even as religious Catholics made poverty as a vow, with
mendicancy, asceticism, and acts of piety as the highest expressions of holiness. Prayerful
indolence and feudal habits had been substitutes for industry. Weber advised instead that “God
helps those who help themselves.”
Positive and negative attitudes to prosperity and entrepreneurial success, according to
Napoleon Hill’s “mind-power” philosophy, can go a long way to affecting one’s imagination,
energy, persistence, decision-making, and subconscious manifestations of one’s ideas and
dreams. He suggested visualization, meditation, and auto-suggestion as therapeutic means to gain
optimism. As a journalist and law student, Hill started his 20-year research on success principles
from his personal correspondence with rags-to-riches capitalists, including Andrew Carnegie,
John D. Rockefeller, and Thomas Edison, as well as statesmen such as U.S. Pres. Theodore
Roosevelt and Philippine Pres. Manuel Quezon during the latter’s exile in the U.S. Hill’s works
have been revived esoterically by Rhonda Bryne’s The Secret.
Meanwhile, certain industries may not prosper depending on religious beliefs. Muslims only
eat halal food, while the Jews prescribe kosher, and Hindus prefer vegetarian diet. Islamic
banking also prohibits usury or payment of interest and loan penalties. It also disallows business
investments related to pork, alcohol, gambling, and pornography. Islamic rules on transactions
(Fiqh al-Muamalat) are safer for borrowers as they protect against loan sharks and encourage
profit-sharing (Mudharabah) and joint venture (Musharakah) between debtor and creditor. The
Charter of Al-Almanah Islamic Investment Bank of the Philippines details Islamic bank services
available in the country, as an alternative to Western banking and investing.
Private Property
Property can be private, communal or public, and corporate. Private property is considered a
natural right by libertarians and classical philosophers, arguing that humans need to keep goods
for personal consumption and improvement. The drive for profits can lead to new pursuits and
innovations. Without private ownership, there is less reason to venture into a market and less
incentive to be productive because there is nothing more to gain.
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Aristotle said that “property should be private” so that someone can take responsibility to
maintain and develop it. John Locke believed that as God gave us dominion over our bodies, He
gave us dominion over things we put value out of our labor. Although the earth is common to
man, Locke said, what man puts value through his labor becomes his own. As a corollary, what
one does not work for he cannot own. Immanuel Kant also argued that the ability to own can be
an expression of self-determination.
The rights of private ownership, however, can be abused. The right to abuse (jus abutendi) is
in fact a composite right of owning something. A person has the right to use his property and
exclude another from its use (jus utendi), hold possession of the property (jus possidendi), enjoy
its fruits (jus fruendi), acquire its accessions (jus accessiones), recover it (jus vindicandi),
transfer and even destroy it (jus disponendi) as long as he does not harm the property of others.
Abuses may be limited by regulation, in consideration of public interest, with compensation to
the owner if the State has to deprive him of control or profits.
In transfers of ownership, Thomas Aquinas proposed the “just price.” The just price is the
price people are prepared to pay, and the buyer will freely accept, given honest information. This
includes a decent profit, but excludes deception and excessive profiteering, which Aquinas
considered avarice or greed.
Joan Robinson, on one hand, espoused not a fixed price but “price discrimination,” selling the
same product at a different price to different classes of people, according to their buying power.
Sellers must have a lower price to attract more buyers, and an alternative higher price to those
willing to pay extra.
It was the 18th-century French economists called “Physiocrats” who coined the phrase laissez
faire, laissez passer (“leave the individual alone, let commodities circulate freely”). They laid the
foundation for the theories of Scottish economist Adam Smith, who, in The Wealth of Nations,
argued that commercial transactions are legitimately based on self-interest since no one sells or
buys without anything in it for him. Nevertheless, it is for the interest of one’s business to
improve the quality of one’s products at competitive prices. Eventually, self-interest will yield to
quality competitive goods that serve over-all public interest. This is the “invisible hand” of
capitalism where the self-interest to survive in a free and competitive trade eventually serves
public interest.
Smith wrote: “Every individual is continually exerting himself to find out the most
advantageous employment for whatever capital he can command. It is his own advantage indeed,
and not that of society, which he has in view. But the study of own advantage naturally, or rather
necessarily, leads him to that employment which is most advantageous to the society.” The best
judge on how to manage one’s property is the investor himself, not the government, Smith
opined, for he is the expert in his industry and how best to stay in the market and serve public
demand.
Public Property
Meanwhile, communal property refers to things that we use and own in common, such as
natural resources, streets, bridges, parks, river banks, etc., as provided under Article 420 of the
Civil Code. Even in a free market economy, there are things that are not marketable and cannot
be sold, such as public goods or services that must be freely available to all and will be difficult
to be reserved for exclusive use. Adam Smith conceded that the government should provide for
those essential public goods that private individuals or firms will not find profitable since
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everyone can free-ride in their use. Examples are lighthouses, national defense, seaports, or
streetlights. These will be provided by the government through taxation.
In Communist states, private ownership is abolished and one is only entitled to “personal
ownership,” understood as the ownership of goods to satisfy basic needs, which cannot be used
as a capital to produce income. There is instead “public or socialist ownership,” where means of
production are owned either by the State or by a commune, to be disposed according to one’s
needs and to one’s labor or contribution to society. Rights over the land and the means of
production are assigned or entrusted to a community rather than titled to an individual. Goods are
distributed according to the “test of need.” By “need” means something a human being cannot do
without in order to survive, as distinguished from wants or desires that can go unlimited.
Communism has been criticized, though, in what has been described as the “tragedy of the
commons.” When land or property is held in common for general use, a person does not feel
personally accountable or motivated to devote himself and invest his time and effort to it. Taking
care of one’s property is like having your own child. You care more if it is your own. In fact, a
person may be tempted to overexploit or overharvest common property if in the end,
responsibility and liability will be shared by all. If property is not fenced, everyone can foul
everywhere.
Further, properties are themselves limited and cannot be free for all because the growth of a
population, even if controlled, is indefinite. With a complex economy, the government cannot
also take care of everything and will not always be efficient. Finally, lack of property and
personal space can be as disempowering as lack of legal rights, and it will not make much of a
difference who is taking all the property — a private mogul or the State. Friedrich Hayek said
that economic control is State control of the means to all our ends. A government big enough to
give one everything would be strong enough to take everything one has.
Corporate Property
Corporate ownership, on the other hand, reserves the property to an entity, but unlike
Communism or public ownership, the owners are free to expand and use their property and
receive dividends; and unlike private property, no private individual owns the corporate property.
It is the artificial person, the corporation, which owns the property.
Corporate holdings are now the preferred mediums of ownership. Corporations can bring
together the assets and investments of many shareholders to fund multi-million projects that a
single person will not be able to do. Corporate ownership proportionately distributes the profits
based on one’s stock ownership, and insulates shareholders from suits as the corporation has a
separate personality from its stockholders. The corporation will pay the creditors and a
stockholder can have the money equivalent of his shares once he opts out of the company.
Stock ownership of corporations started when merchant ships and voyages in the 1500s had to
be funded by patrons. Investors would capitalize money for the equivalent of a “share in
ownership,” to receive a share of the profits from colonized countries. The most successful was
the British East India Company, whose ships traded spices and tea. Today, it is said that
multinational corporations have become more powerful than states. Unlike the State that has
limited citizenship, one can be a shareholder in a multinational company for a minimum price of
shares.
Corporate ownership, however, has been criticized for creating cartels and monopolies. To
solve “corporate greed,” anti-trust laws have been passed to break monopolies, prohibit mergers,
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reserve government shares, limit management prerogatives and perks, and give incentives to new
players. Still, it appears that certain industries are “natural monopolies,” such as oil refineries,
railways, telecommunication networks, and banks. Given the scale of infrastructure, the limited
operational areas available, and the amount of capital needed, there is a tendency to have only a
few players to survive and surmount the costs for these industries.
John Stuart Mill pointed this out, saying that the need for large capital in a trade or business
limits the competition in that business. Monopolies are not necessarily bad if they can cut the
costs of production given their available capital, large workforce and factories, corporate stability
and experience, and network of production facilities.
Welfare Economy
A middle ground for private, public and corporate ownership is the “social market economy.”
Unlike in Capitalism, it is not a laissez-faire free market; but unlike in Communism, neither does
it forbid a private market. The principle is to “make markets fair.” Industries will remain in
private or corporate ownership but the government will provide public works and basic services
such as social security, health care, pension, education, and measures to prohibit monopolies and
cartels.
Government regulation is needed to stabilize the economy, protect both workers and property
owners, and allow profitable return of investments lest industries close down. The “Nordic
model” of Scandinavian countries follows the social market economy, with generous welfare
systems that ensure a quality of life for all. The Philippine Constitution has also adopted
provisions on welfare programs.
Locke, the champion of property rights, himself advocated the limitation and regulation of
property according to one’s share of labor in the Second Treatise of Civil Government: “The
measure of property nature has been well set by the extent of men’s labour and the conveniences
of life. . . for, in governments, the laws regulate the right of property, and the possession of land
is determined by positive constitutions.”
For Locke, one is entitled to property not to the extent of what his money can buy, but as
much “as man tills, plants, improves, cultivates, and can use the product of, so much is his
property.” This is called as the “homestead principle” or “labor theory of property,” where it is
by the exertion of labor upon natural resources that things become one’s property.
Law and Freedom
A law is valuable, not because it is a law, but because there is right in it.
— Henry Ward Beecher, Life Thoughts
Many of our heroes died in the name of freedom. For them, it is more valuable than mere
existence. For to be human is to be free.
Isaiah Berlin said that freedom is of two kinds: Negative freedom, which is the absence of
external constraints; and positive freedom, which is self-control or rational mastery over one’s
appetites. Negative liberty is the absence of coercive and preventive threats, while positive
liberty is the ability of an individual to be his own master and to do what he thinks best.
True freedom takes into account both permissibility and possibility. Authentic freedom does
not only mean you are allowed, but you are able. Law, in this case, must not only consent or
tolerate but also empower. There is no freedom of action even if nothing stops you from doing
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what you want if you have no control over what you want, especially if you do not have the
means.
“If a man is too poor to afford something on which there is no legal ban — a loaf of bread, a
journey round the world, recourse to the law courts — he is as little free to have it as he would be
if it were forbidden him by law,” Berlin explained in Two Concepts of Liberty.
The degree of freedom the law can provide may vary upon the capacity and responsibility of
persons. For example, a minor or a lunatic will need a guardian, because he cannot really decide
for himself and exercise positive liberty. Negative liberty will be deprived to those who commit
crimes in order to prevent them from harming and violating others’ liberty.
Randolph Mayes said that persons are not ordinary objects but “reasoning objects,” requiring
personal space for self-determination. To interfere with a person’s choice is to interrupt his
reason and his right to self-government and personal autonomy. “Liberalism” teaches that there
should be no compulsion in making choices, whether perceived good or bad, called as the “right
to choose.”
Under this paradigm, choice is a value so we can have alternative plans in life. Law should
only prohibit one from harming others, not even from harming oneself (“harm principle”). There
should be minimal state intervention in the lives of citizens (“libertarianism”). A person has
complete dominion over what he wills for his body, his life, and his property. In other words,
“your life, your choice.”
Freedom with Duty
Totalitarian and authoritarian regimes and on one hand, traditional, and paternalistic
institutions, view liberty as freedom only to do good and fulfill duties. Individualistic, selfinterested, or anti-social behavior must be restrained. For the Chinese, all citizens are “under one
heaven” and liberty must be exercised to promote the good of all.
In Scholasticism, one who commits vice is not really free, but a slave to his passions. As
Aristotle clarified in the Metaphysics, “the free man is he who is his own master.” Freedom is
itself a good, but God gave us free will that we may choose what is right. This is also what Kant
called “moral autonomy,” and what Rousseau referred to as “moral liberty.” Authentic freedom
is the capacity to enjoy the good life, not the opportunity to do evil. The fact that you can choose
to harm yourself means you cannot exercise right judgment and you must be subject to the
control of others.
Man is capable of so much good but also so much evil, and the latter must be checked by law.
Disciplinary law must restrain unnatural, self-destructive, and unproductive desires and impulses.
Social cooperation is needed in a healthy society, and this includes fulfilling social duties for the
good of all, including the personal good of oneself.
The French Revolution had it originally: Liberte! Egalite! Fraternite! Freedom is not any
liberty, but fraternal egalitarian liberty.
Law, Guilt, and Personal Liability
It is better to risk saving a guilty person than to condemn an innocent one.
— Voltaire, Zadig
When is a person guilty? Does it require malice or the mere act or failure to do an act?
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Freedom and responsibility are issues in criminal liability. An element of criminal liability is
voluntariness, also called as “free action.” Since a person will commit or omit as he thinks right,
the presence of malice or good will does not matter much so long as an act is deliberate.
Although bad faith is a factor in aggravating penalties, the road to hell can be paved with good
intentions. Whatever one’s motivation, one must be responsible for what one made or made not
happen willingly.
Deliberation or voluntariness is the key. Aristotle noted that there are two main causes of how
an act becomes involuntary: ignorance and compulsion. Ignorance is lack of knowledge or
awareness of what one is doing or not doing. In compulsion, however, one is forced to do
something he would not have done, such as when a gun is pointed into one’s head.
But is free will just a concept? Are not our actions the result of a conglomeration of physical,
psychological, and social forces not really in our control?
“Determinism” is the theory that all events are caused by antecedent conditions and people do
not have much free will, but are like complex machines subject to various external and internal
stimuli. Mental deficiencies, heredity, hormonal imbalances, psychological lapses, biological
instincts, physical needs, traumas and syndromes, social conditioning, customs and traditions,
parental training, peer influence, environmental conditions, and pass-on political and religious
beliefs, can all “conspire” to make a person commit the perfect crime. As proof, criminal
incidence is prevalent in marginal communities because it is in these areas where people live in
multiple subhuman conditions, who do not have sufficient property, rights, and education to
direct a normal life even if they would want to.
Quantum consciousness says that things are not mechanistic as they are supposed to be, but
there is an element of chance and microcosmic human influence in the turn of events. Human
consciousness can affect the behavior of the smallest particles of matter. Up to what extent we
can influence things consciously or subconsciously, or others can influence ours under quantum
dynamics, is still not clear.
A version of “soft determinism” or “compatibilism” insists that freedom is compatible with
internal and external determinants. The antecedent factors give us alternatives of action and
tendencies but our character elects what we will decide to do. It will be absurd that external
factors will be considered but not one’s personal agency. The blame game never ends. We can
always rise out of our circumstances, especially adults psychologically capable of consent. If we
deny free will, and maintain that freedom is an illusion, then we may as well deny freedom too.
In civil damages, the standard is even “strict liability,” regardless of whether the cause of a
damage is fully deliberate, one is responsible if one has been the proximate cause without which
the damaging event, in the ordinary course of things and with due care, would not arise. Strict
liability prevents defenses and justifications based on still debatable theories of human free will.
For instance, damages may be committed because one is drunk, and while the psychological
effect of drinking is beyond one’s control, one is responsible for getting drunk in the first place.
Injuries may also be due to an accident, but one can be inviting an accident if he has been
negligent or careless.
Criminal punishment, in recent trends, has been reformed to be more rehabilitative instead of
punitive. It recognizes sociological findings that people can be driven to commit criminal acts
given their environment and circumstances. People are responsible but not solely responsible,
and mitigating, aggravating, and special circumstances must always be appreciated.
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III. LEGAL THEORIES
Legal Theory is an inquiry into the nature of law. When law students develop a legal thesis, or
when lawyers, judges, and justices write arguments or opinions, it is important to know from
what theory one is dissecting a question of law. The following are major legal methodologies on
the origin and nature of laws, and how they interplay within the Philippine legal system.
The Teleological or Natural Law Theory
Do to others whatever you would like them to do unto you. This is the essence of all that is
taught in the law and the prophets.
— Jesus Christ, in Matthew 7:12
What is the purpose of life? Does life have a meaning? We humans often ask. We can ask the
same things about law. What is its purpose? For what use? For what end?
The teleological school looks into the principles, purpose, and end (telos) of the law. It goes to
the question of the why of the law. The proponents of this school believe that the law serves a
higher universal order based on a “natural order,” which we can discover through our common
human reason and validated by human experience. Natural law is an example of “normative
jurisprudence,” which evaluates the purposes or norms behind the law. Laws are rules for man to
realize his basic natural goods and when shared, become society’s common good.
According to natural law, nature is how people normally behave and are expected to behave.
Human nature, in particular, is rational. The law is law as long as it pursues the precepts of
reason: reasonableness, justice, equality, and fairness. For instance, the law may be stricken
down for being unreasonable or unjust. The jurist appeals to a higher law, that is, the principles
of rational or moral law in the absence of a law or in the presence of a bad law.
The common-law tradition, based on the classic works of William Blackstone, Lord
Mansfield, Henry de Bracton, and Christopher St. Germain, assimilated natural law. Common
law is based on precedents and recognizes that there are basic legal principles or doctrines of
reason that the courts must follow. St. Germain explained though that instead of using the words
“law of nature,” the English preferred to use “reason” (standard of reasonableness) in appealing
to precepts of natural law.
The civil law tradition similarly trails the codification of natural law principles by Justinian.
The Philippine Civil Code acknowledges the existence of natural rights. Article 19 of the Civil
Code maintains that it is not enough that an act is legal, but “every person must, in the exercise
of his rights and in the performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.” Under constitutional law, courts may not question the wisdom
of the law, which is the role of the legislators, but they may nevertheless declare the law
unconstitutional for not meeting fundamental requisites of a just law, such as reasonableness and
necessity.
Finnis on Basic Goods
Natural Law theory may be old school, but is has certainly not seen its first.
John Finnis, Professor of Law and Legal Philosophy in the Oxford University, has revived and
modified natural law theory in legal circles. Before converting to Catholicism, Finnis was an
atheist who was fond of the analytic philosophy of Bertrand Russell, David Hume, and his
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mentor, H.L.A. Hart.
Finnis argued that there cannot be a value-free, unprincipled discussion of the law. A legal
theorist will in the first place need a principle, a criterion, or a value to adopt as basis for his
assessment or for taking interest in law. Laws have a purpose and a direction. They are rules for
what.
Finnis developed the “central case approach” in evaluating law. The focus (focal meaning) and
center of law are those ideal cases (central cases) where natural rights to basic human goods are
served. They make the important or significant laws. The “central case” is in the fullest sense
true law. Legal systems that deviate from the central case are “peripheral” or “borderline cases.”
Examples are Hitler’s Germany, Stalin’s Russia, and Amin’s Uganda. They proceed from
underdeveloped, primitive, corrupt, or undemocratic legal systems. Their rules are only to some
extent considered law, relative to their distance from the ideal or central case.
In Natural Law and Natural Rights, Finnis wrote that there are seven “basic goods” natural to
man: life, knowledge, play, aesthetic experience, sociability (friendship), practical
reasonableness, and religion (transcendence). These needs or deep human desires are recognized
by anyone with sufficient reason and experience, and thus cannot be eliminated from humanity,
which is why they are “natural.” These “basic” goods generate into “natural rights” and
correlative “natural duties.” These are “natural inclinations” according to human experience; and
thus are empirical, not metaphysical, concepts. This is what is meant by saying that natural rights
are “self-evident” and “non-derogable.”
Besides these seven basic goods are other goods which are either the combination, product, or
realization of the basic goods. Satisfaction of these goods is ideal to integral human fulfillment,
both as individuals and as a community. Laws must at least have primary rules to provide these
goods, ensure the survival of society, and give the people “practical reasonableness” for
compliance. Laws are evaluated according to practical considerations of these worthy
fundamentals.
Natural law’s application on sexual ethics and reproductive technology has ruffled some
feathers. For instance, natural law theorists argue that certain sexual behaviors increase the
likelihood of obtaining sexually transmitted diseases and HIV-AIDS, such as having multiple
partners or men having sex with men (MSM). Thus, laws, while not banning these relations,
must at least favor monogamous heterosexual relationships, following the design of human
biology. Further, nature has provided fertile and infertile cycles for women as part of their
reproductive design. Birth control policies must respect women’s bodies by promoting natural
family planning.
The history of natural law theory, which defines and dominates much of Philippine, common
law, civil law, and international law traditions, will be exhaustively discussed in the next chapter.
The Positivist Theory
So let it be written. So let it be done.
— Pharaoh Rameses, in Cecile B. DeMille’s The Ten Commandments (1956)
In whatever sports, athletes are being trained to take into heart the rules of the game. Players
can be suspected of skirting the rules but the rules themselves are hardly questioned. It is
irrelevant who made the rules, how, and why. The game is tough because of the stringent rules.
The rules themselves make the cut.
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Life itself has rules, and we call them law. We follow the law because it is the law, period.
This is what the positivist school maintains.
Positivists are positive on what the law “posits” by the authority given to the State or by
socially accepted rules. Also known as “the command theory,” positivism highlights obedience
to the content and expression of the law with the adage “dura lex, sed lex” (the law is hard, but
that is the law) and “quod principi placuit legis habet vigorem” (whatever pleases the prince has
the force of law). As our hero, Jose Rizal, said in his essay The Philippines: A Century Hence:
“Law has no skin, reason has no nostrils.”
Positivism is also referred as “conventionalism.” Law is purely a product of human will, not of
some natural law or divine will. Laws are made out of explicit or implicit agreements, treaties, or
conventions in society, not due to some extra-legal reality like natural rights, divine providence,
etc. although the agreement may mention these concepts. There is no underlying substance,
principle, or content that the law must conform. It need only be procedurally correct to be valid.
While natural law theory is normative jurisprudence for “what the law ought to be” (lex
ferenda), positivism is “analytic jurisprudence” that studies and recognizes law simply for “what
it is” (lex lata). No ifs or buts or referents to judge the law other than the law itself. For
positivists, all the other approaches to law (natural law, sociological, pragmatic) are wrong for
confusing “what ought” with “what is,” which positivists describe as the “overlap thesis” or “isought fallacy.” Until nullified or amended, one cannot dismiss the law based on what it should be
according to some non-legal standards — for being immoral, inefficient, irrational, imprudent, or
impractical. Thus, when lawyers make or unmake legal arguments, they can only cite the law,
and citing the Bible or non-legal authorities will not hold water.
As David Hume expounded, what the law “is” is another thing from what the law “should be.”
One may not feel the moral or practical duty to follow a defective law but still, one has the legal
duty to do so because it is the law. Otherwise, the law will be disobeyed every time one finds a
reason to disagree. Hume argued that we cannot demonstrate on what the law should be, but on
the facts of what the law is (“social fact thesis”). We argue on legal, not moral, issues.
In reply to Hume’s objection that natural, rational, or moral laws cannot be scientifically
postulated, proponents of natural law would answer that human needs can be mapped clinically.
Sociology, biology, and anthropology have provided studies on general human aspirations or
“human nature” for law to consider if it is to be good order at all.
The lawyer Jeremy Bentham, the father or modern utilitarianism, and his student John Austin,
also popularized positivism. Bentham called natural law “nonsense upon stilts,” and
distinguished the “expositors” of the law (those who explain the law for what it really is) from
the “censors” (those who criticize the law in relation to non-legal notions).
Austin, professor of British jurisprudence, held that the relationship between law and morality
is only accidental and that the law is its own criterion. Law ushers its own majesty and command
without need for moral reference. A developed legal system where unqualified allegiance is paid
is a mark of an independent state system. As a separate science, it will be enough to cite the law.
Other proponents of positivism include Hans Kelsen, who wanted to separate “legal science”
from “legal politics,” which evaluates law based on what is politically correct.
Legalism
Another famous positivist is Thomas Hobbes, who thought that laws cannot be unjust because
these are promulgated by one authorized with sovereign power. While positivism is “the rule of
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law,” its extreme utilitarian Hobbesian form — legalism — is “rule by the law,” where there is
no need for precedent, rules of procedure, or processes that the lawmaker himself must abide to.
His acts are, after all, the law. It recalls the words of French monarch King Louis XIV: L’etat
c’est moi (“I am the State”).
Legalism is associated with Chinese political philosophy since the time of Han Fei Zi, the
legal scholar of the first emperor of China, Qin Shi Huangdi, who built the Great Wall and
unified China during the Warring States period. The rulemaker makes or unmakes law as a skill,
art or tactic (“shu”). The State comes first before the individual. Duties before rights. The head of
State commands absolute respect and obedience, a god-like status, to maintain order and keep
“all under Heaven.” Chinese dynasties were maintained for centuries by operating on this
philosophy.
Chinese main philosophy, Confucianism, teaches regard for hierarchy and the bond between
the ruler and the subject, which supports legalism. The coming of Communism, with its strict
adherence to State authorities, was not a bitter pill to swallow for the Chinese, who are already
used to forms of legalist authoritarianism.
The Hart of the Law
Herbert Lionel Adolphous Hart, chair of Jurisprudence at the Oxford University, presented a
different evolution of law, contrary to naturalists who trace human law to natural law, with his
version of “soft positivism” in The Concept of Law.
For Hart, law is a system of “social rules.” Tribal societies, being closely knit and related,
started first with a “regime of primary rules” (rules of conduct) where the sanctions for
misbehaviors were made through indeterminate means of social pressure and conformity.
This regime of unofficial rules has three defects: first, doubts arose as to the precise scope of
the rules as there was no authoritative reference, such as through a declaration or text; second,
the static traditional character of the rules as there were no means to deliberately abrogate
defunct customary rules; and third, the absence of an official and consistent monopoly of
sanctions.
To remedy these flaws, early societies entered a “legal regime” that has three characteristics:
first, the creation of an authoritative list or text of rules written in a document or carved in a
public monument to be recognized as conclusive and valid (“rule of recognition”). This disposes
doubts on whether a rule exists as there is now a written reference to cite or appeal to. Second, a
reference to legislation to make and repeal rules (“rules of change”). Third, a procedure to be
followed to resolve legal disputes (“rules of adjudication”).
The rule of recognition, say, via a Constitution, is its own measure. It is like a standard meter,
which provides the ways for supplying legal validity. The law is valid as long as it satisfies the
criterion of being characterized as law. The law is “open-textured,” or there is room for
discretion only as the law says so.
The positivist approach has been criticized for its tendency to legalism, formalism, and
uncritical obedience to authority, which served dictatorial regimes. For example, during the Nazi
regime, laws were passed to exterminate the Jews, and the Nazis would raise the defense that
they were only following what was then valid official law.
The Interpretivist or Constructivist Theory
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The judge is nothing but the law speaking.
— Benjamin Whichcote, Moral and Religious Aphorisms
What the law means is what the judges of the law would read it to mean.
The interpretivist school, as conceived by Ronald Dworkin — Hart’s nemesis and successor as
chair of Jurisprudence at Oxford — points that the law is more than explicitly adopted rules. It
has merits or principles behind them that can be “interpreted” or “constructed” by the courts. It is
a rights-based, pro-active construction of the law, against the by-the-rule reading of the law in
positivism.
Dworkin provided a middle ground between natural law theory and positivism that adheres to
the existence of rights and the basic principles of courtesy and justice. According to him,
jurisprudence assumes an abstract foundation. Judges disagree about the law because it is not
enough to say what the law says or not (as positivists claim), but there are correctible issues on
what the law should be.
There are two dimensions of legal interpretation: the formal and the substantive. In the formal
dimension, we look for logical consistency between principles and past decisions. In the
substantive dimension, we look for principles that best “explain” or “justify” the law, which is
construed as having a moral rights-based dimension. It is the “integrity of the law” that entitles it
to a claim to our obedience.
A law is not integral when it is not consistent (formal) and when it goes against substantial
rights and principles (substantive). Positivism is wrong since it only requires that the law be
formally recognized or claimed as law, without going into the merits of the law. We do actually
criticize laws based on principles, for being “unreasonable,” “unjust,” “unnecessary,” or
“irrelevant.”
In Taking Rights Seriously, Dworkin stated that since the judge has the duty to reason
according to rights, he has no complete discretion to decide a case. Discretion does not
tantamount to license. In hard cases, judges do create new rules but must still follow principles.
The law is a “seamless system”: in the absence of laws to apply, the judge must turn to general
principles. They cannot “invent.” Even lawyers, to be persuasive, must argue not only from what
the rule says but from principles — standards of rationality, effectiveness, justice, fairness, or a
dimension of morality.
At this point, the interpretivist approach is akin to the teleological approach, but Dworkin
thought principles and rights are not something already laid down by natural law, but something
still to be “constructed” by the adjudication of judges, faced by novel claims to “best
accommodate the community’s common convictions,” which he called the “best fit theory.”
Adjudication is not “fixed” or “objective” but develops according to contemporary standing or
practice. But again, neither is adjudication subjective or relative.
“The particular precedents are analogous to intuitions; the judge tries to reach an
accommodation between these precedents and a set of principles that might justify them and also
justify further decisions that go beyond them,” Dworkin explained. “In the spirit of the
constructive model, [the judge] accepts these precedents as specifications for a principle that he
must construct, out of a sense of responsibility for consistency with what has gone before.”
In Law’s Empire, Dworkin made the analogy of a “Chain Novel,” where each judge, like a
novelist in a team of authors of a series, adds a new chapter to the law, interpreting and
reinterpreting the previous chapters made by former writers, and developing the plot to come out
40
with the best story, without making the characters unrecognizable. The author can be creative
enough but has to preserve the “integrity” of the story. A good judge similarly preserves the
integrity of the law if he follows in seriatim what comes before him and when he can rationalize
the compositions he is entitled to make out of the law.
In other words, there can be an element of “suspense” on what the next case will say on an
issue, but not necessarily “surprise,” since the holding of a case must still pass the standard of
“integrity” and “best fit.”
The Get-Real Theory
The real world is where the monsters are.
— Rick Riordan, The Lightning Thief
Why do even non-lawyers like to watch TV series on Law and Order? Tuning in to Suits,
Criminal Minds, The Practice, Damages, and the local Kung May Katwiran, Ipaglaban Mo?
Perhaps because legal issues and facts, no matter how dull written in the court rollo, narrate the
everyday drama of life people can relate with. In a court case, you have a mystery plot, private
revelations and curiosities, strange personalities, a protagonist and antagonist, supporting actors,
romance or violence, surprises and testimonies, twists of evidence, a walk down memory lane, a
judgment in suspense, a sequel in appeals. These are the recipes that make a good thriller. They
portray the “trials” of life.
The realist school, sometimes labeled as “pragmatic jurisprudence,” focuses on these human
realities that are often overlooked by hard law, technicalities, and abstract policies. It brings
significance into the question of implementation and whether the law reflects practical
experience. It tells the law and law practitioners to get real. For example, that taxes must be
administratively feasible and statutes enforceable. This school raises the question of whether the
law can be verified by experience.
Justice Oliver Wendell Holmes Jr. was an avowed proponent of judicial legal realism. Having
practiced commercial law, he knew the effects of impractical legal regimes against the economy
and the market. He believed that the law should not even be considered as a system of reason, of
ethical principles and axioms, of what not.
Holmes instead argued for “the bad man model.” In crafting a law or deciding a case, always
think from the perspective of the bad man, not the good man. The bad man, at the end of the day,
cares only for the consequences of the law, of what the courts will do to him, and the rest are
irrelevant. Would the law deter the bad man or not?
Holmes explained that nearly every man wants to avoid disobeying the law when confronted
with disagreeable consequences (bad man perspective), but not all would obey the law for its
sake even if without consequences (good man perspective). This is why the point of view of the
bad man is a better way to ensure that everyone will obey.
Law is determined by the actual practices of courts, law officers, and law enforcers; by real
world practice. Human factors and realities are unavoidable in hard cases, and judges must be
able to take these into consideration. Decisions must be based on the judge’s idea of justice,
conditioned by his values, background, and acquaintance with social forces.
In Holmes’ words, “the life of the law has not been logic, it has been experience.” (The
Common Law, 1). As a social Darwinist, he believed that life is a struggle to build a superior
race, rather than a pursuit of ethical humanitarian values.
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The Critical Theory
In a capitalist society, individuals are controlled by a pitiless law usually beyond their
comprehension. The alienated human specimen is tied to society as a whole by an invisible
umbilical cord: the law of value.
— Che Guevarra, Man and Socialism in Cuba
Mendiola, Luneta, and EDSA are familiar spots for militants and activists who continuously
harp on laws and policies. What they are doing is “critical legal theory” in practice.
The main tenet of critical legal theory is that the law has been the means to enshrine and
coercively impose the wishes of the dominant group or institutions. The ruling classes are the
same ones who make the law, judge the law, and execute the law. Governments are of the ruling
people, by the ruling people, and for the ruling people. Since the law serves the status quo,
revolutions and uprisings are necessary.
Critical Legal Theory questions the law’s assumptions, such as the assumption that the people
are free, and that the market is free. Rather, people’s choices and the market’s behavior are
already conditioned by economic, social, ideological, and political forces, or the present
“hegemony.” This theory also exposes the inconsistencies, inhumanities, and imperialism of First
World Western democracies. The clout of the Western superpowers prevents former colonies
from seeing the flaws in their legal systems that are being adopted globally.
Critical legal theory is associated with subversives as it aims for a “deconstruction” of the law
and uses the “hermeneutics of suspicion” to advance marginalized causes. Among the offshoot of
the critical legal theory are “critical feminist theory,” “critical race theory,” and
“postmodernism.”
Marxists and socialists point to the elitist tendencies of the law; that law’s judgments and
values serve the dominant paradigm, while disregarding the real conditions of the people. Law is
a form of class rule and control. In the polemic Communist Manifesto, Marx wrote: “Your
jurisprudence is but the will of your class made into a law for all, a will whose essential character
and direction are determined by the economic conditions of your class.”
In The Critical Legal Studies Movement, Roberto Mangabeira Unger challenged societies to
rethink their ideas of rights and emancipation and to continuously imagine, envision, and
experiment with structural arrangements, with the goal of creating more opportunities for more
people.
Meanwhile, law can be studied in relation to other fields such as history, sociology,
economics, and logic, thus the historical, sociological, economic, and formalist schools of
interpretation below:
The Once-Upon-a-Time Approach
It usually takes a hundred years to make a law, and then, after it has done its work, it usually
takes a hundred years to get rid of it.
— Henry Ward Beecher, Proverbs from Plymouth Pulpit
The law is not simply made; it is in the making. It rolls a story struck in real events.
The historical school holds that the law has a past and a progression. It develops in a gradual
and evolutionary process and cannot be separated from its national or indigenous character —
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from clannish rules, to folk beliefs, to landmark events that shaped a nation. The historic school
raises the question of how the law originated. Reading the law is not enough. One should also
read the historic struggles and the national profile or identity that colored the law.
Law operates in a specific language, impressed by cultural beliefs, traditions, customs,
temperaments, and the common experiences and consciousness (geist) of a people. The sources
of law will then include epics, folklores, religion, and political developments that provide a
window on the sentiments, archetypes, and pass-on ideals.
The law is therefore the product of a national genius. For example, the existence of the lupon
and the barangay in our legal system can only be understood with reference to their historicity.
The same with our indigenous cultural communities on their pre-Hispanic claim for ancestral
domain.
The main proponents of this school include Freidrich Karl von Savigny, a German jurist, who
claimed that the law proceeds from a voltgeist. Law unfolds from the spirit of the people. Law is
written and updated as the people evolve.
Sir Henry Sumner Maine also argued that legal institutions must be studied historically to be
understood. Legal history shows patterns of evolution recurring in different times in similar
circumstances, such as repetitive occurrences of feudalism. In Ancient Law, he contended that
progress in society is a movement from an emphasis on birth, family, or caste status to a system
based on merits and terms of contract.
Meanwhile, G.W.F. Hegel theorized that the State is the product of converging historical
forces (the dialectics of thesis and anti-thesis merging into a synthesis) going towards an
Absolute Point where freedom will finally be realized. Why is freedom the must of history?
Because man’s reason and free will, Hegel said, seek independent thinking, self-reliance, and
personal liberty. History is an unfolding of this. It is the story of man’s inevitable march to
freedom.
The historical approach has inspired nationalist policies, but its tendency to an exclusivist love
for one’s country has also been criticized for stirring xenophobia, ethnic cleansing,
discrimination on immigrants, racial superiority, separatist movements, and opposition to
globalization.
The Functional or Sociological Approach
There must exist a paradigm, a practical model for social change that includes an
understanding of ways to transform consciousness that are linked to efforts to transform
structures.
— Bell Hooks, Killing Rage: Ending Racism
The law is both a means of social control and social advancement. The sociological school
looks into law as a measure for behavioral conformity and social engineering. Ideally, it should
balance the diverse interests and institutions of society and promote progressive national policies.
The theory is called “functional” by analogy to biology, where every cell has different functions
to maintain a healthy organism so that each one’s different pursuits are good to the whole
society.
This approach justifies “judicial activism” and “judicial legislation” and is related to the
Realist Theory. As opposed to positivist formalism, functional “instrumentalism” justifies
creativity in decision-making beyond the original intent of the law, if this will serve good public
43
policy, human rights, and social interests.
The main proponents of this school are: (1) William James, who taught of law as a means to
satisfy needs; (2) Charles Louis Baron de Montesquieu, who said that the law must adapt to
shifting social conditions; (3) R. Von Jhering, who saw the law as a method of ordering society
composed of competing interests. Legal rules must be used to resolve and harmonize, rather than
provoke or exacerbate conflict; (4) Roscoe Pound, who maintained that a coherent society must
have a pattern of culture that determines its ideology; (5) Max Weber, who made a typology of
law into rational (logical/scientific) and irrational (emotional, superstitious). Weber criticized the
institutionalization and bureaucratization of laws that have become unresponsive to concrete
situations; (6) Roberto Mangeira Unger who held that law must have a cultural context to support
it; and (7) Eugen Ehrlich, who said that legal norm must follow actual social norms and be a
“living law.”
For Pound, in An Introduction to the Philosophy of Law, law is an institution to satisfy social
wants, by ordering human conduct through a politically organized society with a systematic and
orderly application of force. The purpose of the law is not to impose a particular sector’s will
upon others, but to integrate groups by reconciling, mediating, and controlling different interests.
Competing interests are essential to a dynamic society.
Today, the function of settling conflicting interests and developing the law has been given to
conciliators and the courts. The “balancing-of-interest test” and “the compelling interest test” in
jurisprudence are influenced by the sociological school. This approach recognizes that there are
overlapping and competing values and demands among the individual and institutions, such as
organizations, communities, movements, social classes, religions, and families. A definitive
public policy must be adopted but particular interests may not be ignored or denied due process.
Society must survive and adapt to the times by being responsive to an increasingly
heterogeneous and pluralistic society. For instance, Philippine legislative committees are
expected to hear “interest groups” before passing laws. The sociological approach has been used
to recognize and advance the rights and interests of marginal groups, mainly the bill of rights of
the underprivileged, over the power wielded by the State.
The Economic Approach
It’s the economy, stupid!
— Bill Clinton’s 1992 presidential campaign slogan
Judge Richard Posner took the lead in “economic jurisprudence” and “consequentialism.” For
him, the purpose of law is to increase the balance of happiness in society through “wealth
maximization.” In Problems of Jurisprudence, Posner explained that wealth maximization is the
sum of all tangible and intangible goods and services, including the value of rights. “Make
everyone affected by them better off, or at least no worse off,” he said. Wealth maximization is
an ethic of productivity and social cooperation. Good laws bear the imprint of economic analysis.
Law appropriately takes its cue from economics and plays a larger role in modern legal
systems. Posner cited Holmes in The Path of Law for saying that “every lawyer ought to seek an
understanding of economics.” Lawyers operate the current political economy and are “called on
to consider and weigh the ends of legislation, the means of attaining them, and the cost.” In
everything the people have to give up something else, and public policy must analyze the
advantage people gain against what they may lose.
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Still, Posner admitted that some things do not even have a price, such as freedom. Wealth,
however, still plays a role because people who live in wealthier societies enjoy more freedom
and quality of life. Posner cited as example the case of South over North Korea, of Argentina
over Cuba, and of Japan over Southeast Asia.
Forms-and-Fundamentals Approach
Form ever follows function. This is the law.
— Louis Sullivan, The Tall Office Building Artistically Considered
Legal formalism or conceptualism holds that the law is a strict science governed by formal
axioms, legal principles, and rules of logic. The rules or principles serve as the major premise,
the facts of the case as the minor premise, and the holding of the case as the conclusion. Since
abstract principles of the law may be deciphered from the form or text of the law itself, only legal
experts or those with formal legal training can best interpret the law.
Formalism is also referred to as “textualism” or the “plain meaning” approach to the law and
“originalism” or the “original meaning” approach to the Constitution. Judges need only use the
rules of analytic thinking in applying the law to a particular case. “Originalism” further considers
the “original intent” of the drafters, or the “original meaning” based on what reasonable persons
at the time the law was written declare the law to mean in its “initial framework.” When the
meaning of the law is not clear, the Court may call the assistance of an amicus curiae, an expert
of the law, to expose the real intent of the law.
Formalism adheres to ethical constraints on a judge from deciding or opining on what the law
should be or should mean other than what the law says or does not say. It is incidental to the
separation of powers of the three branches of government, where only Congress is supposed to
make laws, while the Judiciary only applies the law to the case in dispute, and the Executive
implements the law. Originalism says that judges should only “interpret,” not “construct.”
Critics of formalism and originalism say that they are “inert,” considering only the letter but
not the spirit of the law, inimical to the concept of an evolving “living constitution” or a “living
law.” Much as the Bible has its fundamentalist interpreters, so the Constitution has its literalists.
Formalism is a by-the-book approach best demanded from certain elements of the legal system
who may abuse their discretionary powers, including administrative agents who may issue
rulings contrary to statutes, or judges who are tasked to apply the law on facts presented. A judge
may not agree on the morality of the law on the grounds provided, or on the propriety of
penalties, but he or she is tasked to follow the law. A government agent may wish to bypass the
law for being dysfunctional, but it will still be illegal to do so. It is up to the lawmakers to
question the wisdom of the law or to change the law, not the judge or the implementing agent.
The positivist Jeremy Bentham espoused formalism. A contemporary advocate of originalism
is U.S. Supreme Court Justice Antonin Scalia, a Republican Conservative famous for his antics.
He wrote scathing dissents on landmark cases that declared unconstitutional state laws banning
abortion, when nothing in the U.S. Constitution speaks about abortion. Scalia cited the preamble
of the U.S. Constitution, where rights were intended to apply not only to generations born, but to
future generations as well. In the express words of the preamble: “to ourselves and to our
posterity.”
Practice Theory
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It’s a free-for-all, after all.
Philip Bobbit, in Constitutional Interpretation, wrote that the different approaches to law, or
modalities, have their own uses. One should know how and when to use them in making
arguments. The modalities are neither true or false, right or wrong, but expressions of what is
true, which must be mastered in legal practice.
Bobbit identified six main modalities. First is the historical, which must be used when the
intention is to decipher what was really meant by the framers of the law. Second is the textual, in
looking for what the law simply declares or denies and how it can be interpreted in contemporary
times. Third is structural, inferring rules from structures and mandates. Fourth is doctrinal,
applying rules generated by precedent. Fifth is ethical or moral, appealing on the ethos or ideals
of a government (teleological). Finally, prudential or according to exigencies and the calculus of
costs and benefits.
Bobbit admitted that each modality has been preferred to advance a certain ideology and that
some people only acknowledge a particular approach to the law, most sensitively, to the
Constitution. But these modes are no more than instruments to make an argument.
The adoption of a particular mode leads to a different outcome or case opinion. Each mode has
its own “grammar” and its own “logic.” As much as we have different languages that are
expressions of our various modalities in life, there are different methods of evaluating the law.
We choose a particular approach based on our sensibilities and motivations. This requires
individual decisions because the modalities do result in conflicting decisions; and for a judge, his
conscience and choice can spell the difference.
CHAPTER II CASE READINGS
PHILOSOPHERS ON LAW AND ACADEMIC FREEDOM
FELIXBERTO C. STA. MARIA v. SALVADOR P. LOPEZ, ET AL.
(G.R. No. L-30773, February 18, 1970)
CASTRO, J., concurring:
xxx
But the respect due the integrity of the individual is by no means antithetical to the interests of
society. On the contrary, one reinforces the other, as the philosopher Reinhold Niebuhr has so
beautifully brought out in his book, “The Children of Light and the Children of Darkness.”
While bourgeois democracy, with its enshrining of the individual at the center stage of society,
has now generally been replaced by a new social consciousness, its emphasis on liberty
nevertheless contains an element of validity that transcends its excessive individualism. Perhaps
it would be closer to the truth to say that the community requires liberty as much as does the
individual and the individual requires community more than bourgeois thought comprehended.
As Dr. Niebuhr explains:
The man who searches after both meaning and fulfillments beyond the ambiguous fulfillments
and frustrations of history exists in a height of spirit which no historical process can completely
contain. This height is not irrelevant to the life of the community, because new richness and a
higher possibility of justice come to the community from this height of awareness. But the height
is destroyed by any community which seeks prematurely to cut off this pinnacle of individuality
46
in the interest of the community’s peace and order.
And what was the community interest involved here? If it was that of the community of
students who massed in front of the University administration building, then it was obviously in
their interest that the strike continued until the respondent Lopez yielded to their demand. If, on
the other hand, it was that of the community of students who very much wanted to attend classes
but were prevented from doing so, or that of the community of professors and other scholars who
could not get inside the classrooms because they were barred by the demonstrating students, then
the protection of their rights is to be found in some solution of a police character and not in the
summary removal of the petitioner. The issue would always thus narrow down to the vindication
of a principle: the rational solution of any controversy.
Of more than passing relevance are these sentiments articulated by Dr. Sidney Hook of the
Department of Philosophy of the New York University, a thoughtful commentator on the
contemporary university scene: “Due process in the academic community is reliant upon the
process of nationality it cannot be the same as due process in the political community as far as
the mechanisms of determining the outcome of rational activity. For what controls the nature and
direction of due process in the academic community is derived from its educational goal — the
effective pursuit, discovery, publication, and teaching of the truth. In the political community all
men are equal as citizens not only as participants in, and contributors to, the political process, but
as voters and decision-makers on the primary level. Not so in the academic community. What
qualifies a man to enjoy equal human or political rights does not qualify him to teach equally
with others or even to study equally on every level. There is an authoritative, not authoritarian,
aspect of the process of teaching and learning that depends not upon the person or power of the
teacher, but upon the authority of his knowledge, the cogency of his method, the scope and depth
of his experience. But whatever the differences in the power of making decisions flowing from
legitimate differences in educational authority, there is an equality of learners, whether of
teachers or students, in the rational processes by which knowledge is won, methods developed,
and experience enriched.”
And on the rule of reason in a liberal educational regimen, Professor Hook gives us pause with
his incisive observations: “In a liberal educational regimen, everything is subject to the rule of
reason, and all are equals as questioners and participants. Whoever interferes with academic due
process either by violence or threat of violence places himself outside the academic community,
and incurs the sanctions appropriate to the gravity of his offenses from censure to suspension to
expulsion. The peculiar deficiency of the ritualistic liberal educational establishments is the
failure to meet violations of rational due process with appropriate sanctions or to meet them in a
timely and intelligent manner. There is a tendency to close an eye to expressions of lawless
behavior on the part of students who, in the name of freedom, deprive their fellow students of the
freedom to pursue their fell studies. It is as if the liberal administration sought to appease the
challenge to its continued existence by treating such incidents as if they had never happened. . . .
There is no panacea that can be applied to all situations. It is not a question of a hard line or a
soft line, but of an intelligent line. It is easy to give advice from hindsight, to be wise and
cocksure after the event. But it is always helpful for the faculty to promulgate in advance fair
guidelines for action, so that students will know what to expect. In general, no negotiations
should be conducted under the threat of coercion, or when administrators or faculty are held
captive.”
PHILOSOPHERS ON LAW AND JUSTICE
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JORGE B. VARGAS v. EMILIO RILLORAZA, ET AL.
(G.R. No. L-1612, February 26, 1948)
PERFECTO, J., concurring:
According to Cicero “in justice the brilliance of virtue is greater, and from her they receive
their name just men” (De Offic. 1., 1, tit. de Justitia); and Saint Thomas Aquinas maintains that
“justice excels all other moral virtues” and “it is the most excellent among all other virtues”
(Summa Theologica, Second Part, Cuestion XVIII, Article XII.)
Although the psuedo-progressives of new pattern, those intellectual renegades who spurn the
wisdom of the ages, may not relish it, we have to quote from Aristotle that “justice seems to be
the most excellent virtue, and that neither the afternoon star nor the morning star inspires more
admiration than her” (Ethics, 1. 5. c. 1), as “the greatest virtue as necessarily those which are
more useful to others, because virtue is a beneficient faculty” (Rhetor. 1, 1, c.9). After all, those
who look farther in the past will see better the future. Who can pull the farther back the string of
a bow, he will send the arrow farther. Robert Maynard Hutchins, President of the University of
Chicago, one of the institutions which greatly contributed to the development of the atomic
bomb, in the 1945 edition of his book “The High Learning in America” could not avoid invoking
several times the authority of the Stagirite. The Pleiad of great physicists who are responsible for
ushering of the Atomic Energy Era, the most revolutionary in the history of humanity —
Becquerel, Curie, Hertz, Einstein, Bohr, Smyth, Rutherford, Meitner, Oppenheimer, and many
others — themselves admitted that the ideas of Democritus and Aristotle on matter, on energy,
on the elements of universe, expressed centuries before Christ, the philosopher’s stone of the
medieval alchemists, and the ideas of Galileo and Newton are direct progenitors and inspirers of
the present concepts on matter and energy as the different expressions of the same thing and
which permitted the discovery of that wonderful microcosmos where the constellations of
electrons, protons, neutrons, deuterons, photons, alpha, beta, and gamma rays, and other radiant
particles in play, offering to man the mastery it never had on physical nature with the harnessing
of the basic forces of universe.
There are thoughts and ideas bequeathed to us by great thinkers which remain fresh and young
through the ages and centuries, like the flesh of the wooly mammoth, buried in Russian tundras,
which today can still be eaten, although the beasts died in the pre-historic darkness of remote
antiquity. Those are the thoughts and ideas insufflated with the vitality of eternal truth. They
spring from the minds of the geniuses with which Nature, once in a while, blesses certain epochs,
to be the intellectual leaders of mankind for all time.
The ignorants and retrogrades will never understand it; but it is a fact that in the summit of his
glorious career, Justice Holmes, the greatest Judge of modern times, continued reading Aristotle.
To free themselves from the sorrows they feel with the surrounding market of vulgarity, where
pygmys and riffraffs dominate, great minds seek enjoyment in the company of their kind. Eagles
will not be happy in the society of flies and mosquitoes. That explains the calibre of the friends
Rizal had in Europe.
All these may sound esoteric to the unfortunate class of morons or mental degenerates. We
cannot help it. Our words are addressed to persons with normal understanding.
HEGEL AND THE SPIRIT OF STATUTES
WILLIAM F. PERALTA v. THE DIRECTOR OF PRISONS
(G.R. No. L-49, November 12, 1945)
48
PERFECTO, J., concurring:
XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE RIGHT, TO
IMMEDIATE RELEASE
After showing the absolute nullity of the judicial process under which petitioner has been
convicted to suffer the penalty of life imprisonment, the inevitable consequence is that he is
entitled, as a matter of absolute right, to be immediately released, so that he can once again enjoy
a life of freedom, which is the natural boon to law-abiding residents of our country, and of which
he was unjustly deprived through means most abhorrent to human conscience.
We must not hesitate for one moment to do our duty in this case. The sooner we comply with
it, the better. The process and judgement under which petitioner has been convicted and is now
undergoing an unjust imprisonment, is one of the hateful vestiges left in our country by the moral
savagery of a people spiritually perverted and debased. The seriousness of this matter cannot be
viewed with insouciance. We must not lose time to wipe out such vestiges if we must protect
ourselves against their poisonous effects in our political, social, and cultural patrimony.
We must erase those vestiges if we want to keep immune from all germs of decay the
democratic institutions which are the pride of our people and country, under which we are
enjoying the blessings of freedom and with which we hope to assure the well-being and
happiness of the unending generations who will succeed us in the enjoyment of the treasures
accumulated by a bountiful nature in this Pearl of the Orient.
If we allow such vestiges to remain we are afraid that some historian may write about
Philippine democracy, Philippine race, and Philippine culture, what, on ancient art, Hegel said in
the “Phenomenology of the Spirit,” according to Kohler, the greatest work of genius that the
nineteenth century has produced:
The statues set up are corpses in stone, whence the animating soul has flown; while the hymns
of praise are words from which all belief has gone. The tables of the gods are bereft of spiritual
food and drink, and from his games and festivals, man no more receives the joyful sense of his
unity with the Divine Being. The works of the muse lack the force and energy of the Spirit which
derived the certainty and assurance of itself just from the crushing ruin of goods and men. They
are themselves now just what they are for us — beautiful fruit broken off the tree, a kindly fate
has passed on those works to us, as a maiden might offer such fruit off tree. It is not their actual
life as they exist, that is given us, not the tree that bore them, not the earth and the elements,
which constituted their substance, nor the climate that determined their constitutive character,
nor the change of seasons which controlled the process of their growth. So, too, it is not their
living world that fate preserves and gives us with those works of ancient art, not the spring and
summer of that ethical life in which they bloomed and ripened, but the veiled remembrance alone
of this reality.
Our sense of national self-preservation compels us, as an imperative duty, not only to restore
immediately the petitioner to his personal liberty, but, all possible means, to obliterate even the
memory of the inquisitorial summary procedure depicted in the present case.
Such procedure exhibits either inversion, retroversion, subversion, or perversion of elemental
human concepts. It ignores completely and debases the high purposes of a judicial procedure. It
represents a hylistic ideology which proclaims the supremacy of the state force over fundamental
human rights. We must never allow the neck of our people to be haltered by the lethal string of
that ideology. It is a virus that must be eliminated before it produces the logical disaster. Such
49
ideology is a cancerous excrescence that must be sheared, completely extirpated, from the live
tissues of our body politic, if the same must be saved.
We cannot understand how any one can justify the summary process in question under the
principles embodied in our Constitution. To profess attachment to those principles and, at the
same time, to accept and justify such kind of criminal miscarriage of justice, is just sheer
hypocrisy. It is a repetition of what Seneca did when, after preaching moral virtues, justified
without any compunction the act of Nero, the sanguinary Roman Emperor, of murdering in cold
blood his own mother. It is reproducing the crooked mentality of Torquemada, who, upon the
pretext of combating and persecuting heresy to save souls from hell, conceived the diabolical
idea of condemning their victims to an advanced version of hell in this life, and among those
who suffered under the same spirit of intolerance and bigotry which was its very essence are
counted some of the greatest human characters, such as Galileo, Giordano Bruno, and Girolamo
Savonarola. That procedure might find justification in the thick heads of the Avars, Huns,
Vandals, and Teutons, or in the stratified mentality of Japanese cullions, but not in a healthy
mind of a cultured person of modern times. To allow any vestige any vestige of such procedure
to remain is tantamount to reviving the situation during which our citizens endured sleepless
nights in constant fear of the hobnail terror stalking in the darkness, when their personal security
and their life were hanging by the thin of chance.
We wish a way could be found to free completely our people of the sense of shame, which
they cannot help feeling, engendered by members of our race who justified such abhorrent
summary procedure and allowed themselves to become a party to the execution of a scheme only
acceptable to the undeveloped mentalities of the dark ages. It is a shame that makes our blood
boil when we think that countrymen of Father Gomez, of Rizal, of Mabini, could accept
procedures representing the brutal ideology which is the very opposite of the humane, lofty, and
dignified ideology that placed said heroes and martyrs among the purest and noblest specimens
that humanity produced in all countries, in all time, for all ones and light years to come.
It is with joy and pride that we agree with all our brethren in unanimously granting petitioner
the redress he seeks in his petition.
H.L.A. HART ON LAW AND MORALITY
ALEJANDRO ESTRADA v. SOLEDAD ESCRITOR
(A.M. No. P-02-1651, August 4, 2003)
VITUG, J., separate opinion:
xxx
The Common Origin of Morality and the Law
That law and morals are closely intertwined is a traditionally held belief. One school of
thought even go as far as calling a law without morality as not law at all; but naked power, and
that human beings not only have a legal, but also the moral obligation to obey the law. It
suggests that where law clashes with morality, it can impose no obligation, moral or otherwise,
upon anyone to obey it; one may actually be morally bound to disobey such law. The ancient role
held by the Christian Church as being the ruler of both spiritual and temporal affairs of men has
laid that groundwork for the impression. The Judaic-Christian God is thought to be the source of
both law and morality and man has come to know of His law and morals through the human
50
soul, the human conscience and the human mind. With the rise of the secular state in the 16th
and 17th centuries and the corresponding decline in the authority of the Church, legal thinkers
such as Pufendorf, Vattel, and Burlamaqui would establish legal systems based on scientific
principles deduced from the nature of men and things, that would guide the behavior of the
metaphysical man in directions that promote political order and assure a measure of protected
individual dignity. Such treatises on natural law have offered model political systems based on
scientific principles logically deduced from the nature of man and the nature of things, serving to
give a kind of scientific legitimacy to the newly formed nation states emerging in the 17th and
18th centuries under human sovereigns. Not surprisingly, sovereigns of that era promulgated
natural law codes consisting of religious commandments, quasi-human moral values and civic
virtues all couched in the language of legal proscriptions proclaimed and enforced by secular
states. Human conduct condemned by God’s law and forbidden by the sovereign’s law would be
said to be morally, as well as legally, reprehensible or malum in se.
As the law of the state became inexorably intertwined with higher moral law, based on both
divine law and the law of nature, so, also, human law was seen to carry the moral authority of
both. Jurisprudential ramifications could hardly be contained.
In the last 19th century, legal reformers have consciously inculcated moral concepts such as
fault, intent, and extenuating circumstances into both civil and criminal law. Law and morals
have been drawn closer together so that legal accountability, more accurately than not, would
likewise reflect moral culpability. Vestiges of these reforms are still enshrined in our laws. In the
Revised Penal Code, for example, mitigating, extenuating or aggravating circumstances that may
either decrease or increase the penalties to be meted on an offender are all based on the moral
attributes of the crime and the criminal.
The academic polemic
With the emergence of the secular state, the greatest contribution of liberals to the issue is not
the discovery of a pre-existing, necessary distinction between law and morality; rather, it is their
attempt at separation, the building of the wall to separate law from morality, whose coincidence
is sublimely monstrous. Liberals attempt to divorce law from morality by characteristically
adhering to some form of “harm” principle: public authority may justly use law as coercive
factor only to prevent harm to non-consenting third parties. More specifically, the main
distinguishing feature of liberalism is its opposition to morals law or the legal interference up to
and including (sometimes) prohibition of putatively “victimless” immoralities such as sodomy,
prostitution, fornication, recreational drug use, suicide and euthanasia. Liberals argue that moral
laws are, in principle, unjust.
This surge of liberalism has set the trend in the courts to adopt a neutral and disinterested stand
in cases involving moral issues, often at the expense of obscuring the values which society seeks
to enforce through its moral laws. This matter brings to mind the case of Grisworld v.
Connecticut where the U.S. Supreme Court, despite a presupposition that contraception is always
wrong, nevertheless, has invalidated that state’s anti-contraceptive law. In so deciding, the U.S.
Supreme Court has not met head-on the issue of whether the use of contraception is immoral but
instead has struck down the law as being invalid on the ground of marital privacy. Should
Grisworld then be taken to sanction a moral right to do a moral wrong?
Into the Twentieth Century: the Devlin-Hart Debate
On September 1957 in England, the Committee on Homosexual Offenses and Prostitution
51
chaired by Sir John Wolfenden has recommended in its report to the British Parliament that
homosexual behavior between two consenting adults in private should no longer be a criminal
offense. The thesis holds that it is not the duty of the law to concern itself with immorality as
such. The report has proposed to resolve questions of the legitimacy of legally enforcing moral
obligations by distinguishing immoralities that implicate public interests from immoralities that
are merely private. The Wolfenden Report would spark an academic debate that persists to this
day.
Patrick Devlin, then a High Court judge, has argued at the British Academy’s 1959
Maccabaean Lecture that it would be a mistake to posit a private sphere of immorality into which
the law ought not to venture. Devlin’s legal moralism hinges on the theory that moral offenses
insofar as they affect common good are fit subjects for legislation. Whether behavior, private or
public may affect common good in such a manner that endanger the fabric of society and should
thus be suppressed by law is a question of fact, which can be answered only after a full
consideration of the conditions prevailing in a given society. To Devlin, morals are not merely a
matter of private judgment; society should be in a position to enforce its moral standards as a
means of self-preservation, “whatever its morality happens to be.” Devlin would thus become
the forerunner of ethical relativism which suggests that there is no “right” and “wrong” in any
absolute sense, that right or wrong depend entirely on the culture in which one happens to live.
Devlin then would tolerate individual freedom only as far as possible and as long as it is
consistent with the integrity of society. Hence, while privacy is respected, it may be forfeited
where one person injures another.
H.L.A. Hart refutes Devlin’s suggestion that immorality, even if private, can be likened to
treason, against which it is permissible for society to take steps to preserve itself. Hart sees
Devlin’s view of people living in a single society as having common moral foundation as overly
simplistic. To Hart, societies have always been diverse. With the rise of democracy, society
could more accurately be called a collectivity of ideas and attitudes, an assemblage or gathering
of people who live together and work together and govern themselves collectively in spite of the
great diversities that divide them. Hart places emphasis on the right to privacy and freedom of
action which ought to be protected and should be interfered with only when private behavior
ceases to be private and becomes a menace to the public or to some part of the public. One may
deduce from Hart’s arguments that private consensual moral offenses should not be legally
prohibited because of the difficulties in enforcing such laws and the near impossibility of
detecting most offenses without an unconscionable invasion of privacy.
Hart criticizes attempts to impose the morality of the majority on a few. Justification for
punishment especially when applied to conduct not harmful to others represents a value to be
pursued at the cost of human suffering, the bare expression of moral condemnation and treats the
infliction of suffering as a uniquely appropriate mode of expression. The idea that we may
punish offenders against a moral code not to prevent harm but simply as a means of venting or
expressing moral condemnation is uncomfortably close to human sacrifice as a form of religious
worship. To Hart, Vox populi does not necessarily translate to Vox Dei. Hart particularly singles
out laws aimed at enforcing sexual morality as oppressive — “Laws designed to enforce sexual
morality to the extent that they interfere with certain forms of sexual expression and restrict the
sexual outlet that may be available, impose an acute form of suffering upon those who are thus
deprived of the only outlet available to them.” Such laws and the coercive measures that may be
used to enforce them “may create misery of quite a special degree. All restraints then must be
justified by strong reasons.” Quoting John Stuart Mill in his essay “On Liberty”, Hart expounds
52
— “The only purpose for which power can rightfully be exercised over any member of a
civilized community against his will is to prevent harm to others. His own good, either physical
or moral is not a sufficient warrant. He cannot be rightfully compelled to do or forbear because it
will be better for him to do so, because it will make him happier, because in the opinion of
others, to do so would be wise or right.”
Arriving at an Acceptable Middle Ground
But Hart is not without his critics, among them being Robert P. George. George acknowledges
that laws per se cannot make men moral; laws can only succeed in commanding outward
conformity to moral rules but cannot compel internal acts of reason. Such an instance would be a
law requiring all people to contribute to the charities. While fear of sanctions would force one to
make such contribution, the same does not necessarily make him charitable. George, however,
contends that laws can be utilized to make men moral by: (1) preventing further self-corruption,
(2) preventing bad example (3) helping to preserve the moral ecology and (4) educating people
about right and wrong. Thus, to him, moral laws punishing victimless sexual immoralities, for
example, proceed from the conviction that the acts are truly wrong and that they damage the
characters of the people who perform them, block the path to virtue, and in specific ways offend
against the common good. George cites Aristotle who, centuries ago, had long anticipated but
criticized and firmly rejected the doctrine of mainstream contemporary liberalism, namely the
belief that the law should merely be a guarantor of men’s rights against another — instead of
being, as it should be, a rule of life such as will make the members of the polis good and just.
Robert George submits, and I agree, that while morality cannot be legislated, laws can help
make men moral by creating a “moral ecology” and profoundly affecting notions in society about
what is morally acceptable, forbidden and required. People shape their own lives and often treat
others very differently in the light of these notions. The point is, “a good moral ecology benefits
people by encouraging and supporting their efforts to be good, a bad moral ecology harms people
by offering them opportunities and inducements to do things that are wicked.” To illustrate, the
decision of U.S. Supreme Court in Brown v. Topeka Board of Education in 1954 and of the Civil
Rights Act of 1964 has primarily been responsible in changing society’s perception on forced
segregation or interracial marriage.
It might then be deduced that moral laws are justified when they (1) seek to preserve the moral
value upheld by society and (2) when the morality enforced in a certain case, is true and correct.
It is within these standards that the provision against “immorality” in the Administrative Code
must be examined to the extent that such standards can apply to the facts and circumstances in
the instant case before the Court. As a rule then, moral laws are justified only to the extent that
they directly or indirectly serve to protect the interests of the larger society. It is only where their
rigid application would serve to obliterate the value which society seeks to uphold, or defeat the
purpose for which they are enacted, would a departure be justified.
HOLMES ON LAW AND EXPERIENCE
JOEL G. MIRANDA v. ANTONIO M. ABAYA and the COMMISSION ON ELECTIONS
(G.R. No. 136351, July 28, 1999)
PANGANIBAN, J., dissenting:
I appreciate the scholarly disquisition of the majority led by my distinguished brother, Justice
Jose A. R. Melo, explaining the difference between the “disqualification” of a candidate and the
53
“cancellation” of his certificate of candidacy. The majority holds that, under Section 77 of the
Omnibus Election Code, there are only three instances in which a candidate may be
“substituted,” and these are “death, withdrawal or disqualification” of such candidate. Inasmuch
as the certificate of candidacy of petitioner’s father, Jose “Pempe” Miranda, was merely
“cancelled,” he could not be legally substituted by reason of the rule on statutory construction,
expressio unius est exclusio alterius.
I agree that there is some legal logic in this conclusion. However, as the eminent Justice Oliver
Wendell Holmes Jr. has aptly said, “The life of the law has not been logic; it has been
experience.” With due respect, may I point out that the problem with the majority’s position is
that it totally scuttles the result of the election for the position of mayor and, instead,
unceremoniously installs the elected vice mayor to the said position.
There is no doubt that the petitioner was the people’s choice for mayor. He garnered the
highest number of votes in the election for mayor of the City of Santiago. Why should this Court,
in the name of hairsplitting logic, obliterate the popular will and impose upon the electorate a
person whom nobody voted for the position of mayor? Experience and common sense rebel
against this proposition.
HOLMES ON PLAIN CONSTRUCTION
CO KIM CHAM (alias CO KIM CHAM) v. EUSEBIO VALDEZ TAN KEH and ARSENIO P.
DIZON
(G.R. No. L-5, September 17, 1945)
PERFECTO, J., dissenting:
The October Proclamation is written in such a way that it is impossible to make a mistake as to
the intention of its author.
Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of the
United States, the following:
When the words in their literal sense have a plain meaning, courts must be very cautious in
allowing their imagination to give them a different one. Guild v. Walter, 182 Mass., 225, 226
(1902)
Upon questions of construction when arbitrary rule is involved, it is always more important to
consider the words and the circumstances than even strong analogies decisions. The successive
neglect of a series of small distinctions, in the effort to follow precedent, is very liable to end in
perverting instruments from their plain meaning. In no other branch of the law (trusts) is so much
discretion required in dealing with authority. . . . There is a strong presumption in favor of giving
them words their natural meaning, and against reading them as if they said something else, which
they are not fitted to express. (Merrill v. Preston, 135 Mass., 451, 455 [1883]).
When the words of an instrument are free from ambiguity and doubt, and express plainly,
clearly and distinctly the sense of the framer, there is no occasion to resort to other means of
interpretation. It is not allowable to interpret what needs no interpretation.
Very strong expression have been used by the courts to emphasize the principle that they are
to derive their knowledge of the legislative intention from the words or language of the statute
itself which the legislature has used to express it. The language of a statute is its most natural
guide. We are not liberty to imagine an intent and bind the letter to the intent.
54
HOLMES ON LAWYER’S OATH TO CLIENTS
TEODORO REGALA, ET AL. v. SANDIGANBAYAN
(G.R. No. 105938, September 20, 1996)
KAPUNAN, J.:
The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege
and lawyer’s loyalty to his client is evident in the duration of the protection, which exists not
only during the relationship, but extends even after the termination of the relationship.
Such are the unrelenting duties required by lawyers vis-à-vis their clients because the law,
which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes, “. . . is an
exacting goddess, demanding of her votaries in intellectual and moral discipline.” The Court, no
less, is not prepared to accept respondents’ position without denigrating the noble profession that
is lawyering, so extolled by Justice Holmes in this wise:
Every calling is great when greatly pursued. But what other gives such scope to realize the
spontaneous energy of one’s soul? In what other does one plunge so deep in the stream of life —
so share its passions its battles, its despair, its triumphs, both as witness and actor? . . . But that is
not all. What a subject is this in which we are united — this abstraction called the Law, wherein
as in a magic mirror, we see reflected, not only in our lives, but the lives of all men that have
been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our
mistress, we who are here know that she is a mistress only to be won with sustained and lonely
passion — only to be won by straining all the faculties by which man is likened to God.
We have no choice but to uphold petitioners’ right not to reveal the identity of their clients
under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant
case clearly fall within recognized exceptions to the rule that the client’s name is not privileged
information.
HOLMES ON PUBLIC OVER PRIVATE INTEREST
CIPRIANO P. PRIMICIAS v. VALERIANO FUGOSO
(G.R. No. L-1800, January 27, 1948)
HILADO, J., dissenting:
In other words, when the use of public streets or places is involved, public convenience, public
safety and public order take precedence over even particular civil rights. For if the citizen
asserting the civil right were to override the right of the general public to the use of such streets
or places, just because it is guaranteed by the constitution, it would be hard to conceive how
upon the same principle that citizen be prevented from using the private property of his neighbor
for the exercise of the asserted right. The constitution, in guaranteeing the right of peaceful
assembly and petition, the right of free speech, etc., does not guarantee their exercise upon public
places, any more than upon private premises, without government regulation in both cases, of the
owners’ consent in the second..
In Davis v. Commonwealth, 167 U. S. 43, 42 Law. Ed., 71, 72, the United States Supreme
Court, in affirming the decision of the Supreme Judicial Court of Massachusetts written by
Justice Oliver Wendell Holmes, then of the latter tribunal, quoted from said decision as follows:.
“. . . As representatives of the public it (legislature) may and does excercise control over the
55
use which the public may make of such places (public parks and streets), and it may and does
delegate more or less of such control to the city or town immediately concerned. For the
legislature absolutely or conditionally to forbid public speaking in a highway or public park is no
more an infringement of the rights of the member of the public than for the owner of a private
house to forbid it in his house. When no proprietary right interferes the legislature may end the
right of the public to enter upon the public place by putting an end to the dedication to public
uses. So it may take the lesser step of limiting the public use to certain purposes. See Dill. Mun.
Corp. secs. 393, 407, 651, 656, 666; Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234, 243, 244
(6 Am. Rep. 70). . ..”.
HOLMES ON VAGUENESS OF LAW
JOSEPH EJERCITO ESTRADA v. SANDIGANBAYAN
(G.R. No. 148560, November 19, 2001)
BELLOSILLO, J.:
Where, therefore, the ambiguity is not latent and the legislative intention is discoverable with
the aid of the canons of construction, the void for vagueness doctrine has no application.
In Connally v. General Constr. Co. the test of vagueness was formulated as follows:
[A] statute which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law.
Holmes’s test was that of the viewpoint of the bad man. In The Path of the Law, Holmes said:
If you want to know the law and nothing else, you must look at it as a bad man, who cares
only for the material consequences which such knowledge enables him to predict, not as a good
one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer
sanctions of conscience.
Whether from the point of view of a man of common intelligence or from that of a bad man,
there can be no mistaking the meaning of the Anti-Plunder Law as applied to petitioner.
xxx
The application of mitigating and extenuating circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of
plunder since the degree of responsibility of the offender is determined by his criminal intent. It
is true that §2 refers to “any person who participates with the said public officers in the
commission of an offense contributing to the crime of plunder.” There is no reason to believe,
however, that it does not apply as well to the public officer as principal in the crime. As Justice
Holmes said: “We agree to all the generalities about not supplying criminal laws with what they
omit, but there is no canon against using common sense in construing laws as saying what they
obviously mean.”
DWORKIN ON LEGAL PRINCIPLES
PAULINO and LUCENA PADUA v. GREGORIO ROBLES and BAY TAXI CAB
(G.R. No. L-40486, August 29, 1975)
FERNANDO, J., concurring:
56
The clarity and lucidity with which Justice Castro spelled out the decisive issue and how to
resolve it to achieve the desirable goal of moral justice in adjudication compels concurrence. I do
so. What is more, there is to my mind a distinct advance in the juridical frontiers in the mode in
which the novel question raised was settled. If the trend manifest in the view taken by the Court
would thereafter be followed, then the protective ramparts the law throws ground victims of
vehicular accidents, unfortunately of rather frequent occurrence here, will be further
strengthened. That dissipates whatever doubts I may have originally felt in view of certain
traditional procedural concepts about the correctness of the decision reached. It is true this is one
of those hard cases which, if an old law is to be believed, may result in bad law. It need not be
so, of course, as pointed out with great persuasiveness in the 1971 inaugural lecture at Oxford
given by Professor Ronald Dworkin, the successor in the chair of jurisprudence to one of the
most eminent men in the field H.L.A. Hart.
The more accurate way of viewing the matter is that whenever there is an apparent gap in the
law and settled principles of adjudication may not clearly indicate the answer, then a judge may
rely either on an argument of policy or an argument of principle, the former having kinship with
the sociological school of jurisprudence and the latter with the analytical. As I hope I may be
able to indicate in this brief concurrence, the decision reached by us is in consonance with either
approach. With the natural law thinking manifest in the opinion of the Court, witness its stress on
moral justice, I am comforted by the reflection that the procedural barrier is not insurmountable,
the decision reached deriving support from the viewpoint of law as logic, justice, or social
control.
JOHN FINNIS AND CONTEMPORARY NATURAL LAW PHILOSOPHY
REPUBLIC OF THE PHILIPPINES v. SANDIGANBAYAN, MAJOR GENERAL JOSEPHUS.
RAMAS and ELIZABETH DIMAANO
(G.R. No. 104768, July 21, 2003)
PUNO, J., separate opinion:
[Aquinas’ traditional natural law theory has been advocated, recast and restated by other
scholars up to the contemporary period. But clearly, what has had a pervading and lasting impact
on the Western philosophy of law and government, particularly on that of the United States of
America which heavily influenced the Philippine system of government and constitution, is the
modern natural law theory.]
Footnote 39: An important restatement was made by John Finnis who wrote Natural Law and
Natural Rights published in 1980. He reinterpreted Aquinas whom he says has been much
misunderstood. He argues that the normative conclusions of natural law are not derived from
observations of human or any other nature but are based on a reflective grasp of what is selfevidently good for human beings. “The basic forms of good grasped by practical understanding
are what is good for human beings with the nature they have.” The following are basic goods:
life (and health), knowledge, play, aesthetic experience, sociability (friendship), practical
reasonableness, and religion. (Bix, B., supra, pp. 228-229.) He claims that Aquinas considered
that practical reasoning began “not by understanding this nature from the outside . . . by way of
psychological, anthropological or metaphysical observations and judgments defining human
nature, but by experiencing one’s nature . . . from the inside, in the form of one’s inclinations.”
(Freeman, M.D.A. Lloyd’s Introduction to Jurisprudence [1996], p. 84, citing J. Finnis, Natural
Law and Natural Rights [1980], p. 34.)
57
Lon Fuller also adopted a natural law analysis of law and wrote that there is a test that a law
must pass before something could be properly called law. Unlike traditional natural law theories,
however, the test he applies pertains to function rather than moral content. He identified eight
requirements for a law to be called law, viz: “(1) laws should be general; (2) they should be
promulgated, that citizens might know the standards to which they are being held; (3) retroactive
rule-making and application should be minimized; (4) laws should be understandable; (5) they
should not be contradictory; (6) laws should not require conduct beyond the abilities of those
affected; (7) they should remain relatively constant through time; and (8) there should be a
congruence between the laws as announced and their actual administration.” He referred to his
theory as “a procedural, as distinguished from a substantive natural law.” (Bix, B., supra, pp.
231-232.)
Ronald Dworkin also occasionally refers to his approach as a natural law theory. Dworkin
postulates that along with rules, legal systems also contain principles. Quite different from rules,
principles do not act in an all-or-nothing way. Rather principles have “weight”, favoring one
result or another. There can be principles favoring contrary results on a single legal question.
Examples of these principles are “one should not be able to profit from one’s wrong” and “one is
held to intend all the foreseeable consequences of one’s actions.” These legal principles are
moral propositions that are grounded (exemplified, quoted or somehow supported by) on past
official acts such as text of statutes, judicial decisions, or constitutions. Thus, in “landmark”
judicial decisions where the outcome appears to be contrary to the relevant precedent, courts still
hold that they were following the “real meaning” or “true spirit” of the law; or judges cite
principles as the justification for modifying, creating exceptions in, or overturning legal rules.
(Bix, B., supra, pp. 234-235.)
58
CHAPTER III
NATURAL LAW, INTERNATIONAL LAW,
AND THE CLASSIC PHILOSOPHERS
Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by
the same means, warmed and cooled by the same winter and summer?
If you prick us, do we not bleed?
If you tickle us, do we not laugh?
If you poison us, do we not die?
And if you wrong us, shall we not revenge?
— William Shakespeare, The Merchant of Venice, Act 3, Scene 1
I. THE NATURE OF MANKIND
“Law is a product of social life, and is a creation of human nature,” wrote by Tolentino in his
Commentaries and Jurisprudence on the Civil Code of the Philippines I.
Ancient Greek philosophers believed that all men have a common nature that separates us
from other species — our ability to reason. In contemporary lingo, humans have selfconsciousness, endowed with the ability to reflect and analyze experience, to investigate and to
innovate, and to look for the causes, purposes, and reasons for things. The Golden Rule of all
religions, “to do to others what you want others done unto you” makes sense because we humans
share a common nature, an intelligent nature. We are homo sapiens, the thinking man.
This does not mean that a non-thinking individual, or an irrational person, or a human being
who does not yet have the spark of consciousness (unborn babies, infants) or who ceased to be
conscious (in a state of coma or a person asleep), does not possess a rational nature. One may not
be engaged in any rational activity at all, but it is inherent in bearing the human genome to have
the potential for rational conscious activity, given the right conditions.
Psychoanalysts like Carl Jung, the founder of analytical psychology said that rationality is not
the only thing humans share in common. We also have a “collective unconscious” in our dream
state and altered states, based on quantum entanglement and non-biological forces of physics,
which explain the similarity of cultural archetypes and psychic phenomena.
Still, rationality frames how we should act in our conscious states to function well. Human
beings reason on what is right and wrong, fair and inappropriate, making equity a precept of
reason. Human beings seek self-preservation and perpetuation, and unlike animals that merely
breed, humans form families and educate their children until they become adults. Human beings
have developed sophisticated language and advanced forms of communication too. Furthermore,
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humans organize into societies as political animals, which give rise to political institutions.
Human beings do not only seek pleasure in sex, but human consciousness make love possible.
As thinking, self-reflective creatures, we humans have our own identities, and with these come
our liberty to express and be ourselves. Finally, our minds think in structures. We want order in
society, and thus we need the rule of laws.
Phases of Natural Law Theory
Natural law theory has undergone distinct developments. First is its Classical Phase by ancient
Greek and Roman philosophers who believed that human reason is common among men and
along with this, the common precepts of right law and equity. Examples are Plato and Aristotle’s
works on virtue ethics, called “virtue jurisprudence.” Another is the Antigone by Sophocles.
In Antigone, King Creon made it illegal to bury traitors, whose bodies should instead be
exposed to beasts. Antigone, in defiance, buried her brother Polyneices. She was arrested, but
made a defense that it is but natural for men to bury their loved ones. Antigone appealed to an
unwritten law higher than the law of men, as recalled in the Separate Opinion of Justice Reynato
Puno in Republic of the Philippines v. Sandiganbayan, et al. (G.R. No. 104768, July 21, 2003).
In Oedipus Rex, Sophocles again referred to these higher laws known to reason: “laws that in the
highest heaven had their birth, neither did the race of mortal men create them, nor shall oblivion
ever put them to sleep.”
Next came the Scholastic Phase that taught that natural law is man’s participation with eternal
law. It was called “Thomism” in reference to the philosophy of St. Thomas Aquinas, as adopted
by the Catholic Church.
Third is the Enlightenment or Modern Phase that used natural law as a basis for natural rights
and duties. Immanuel Kant reformulated the Golden Rule into the “categorical imperative” of
always acting the way one would like his act to be the universal rule, also called as “deontology.”
Fourth is the International Law Phase in reference to general principles of law and
international rights, a common law for all nations of men. Hugo Grotius, Francisco de Vitoria,
and Francisco Suarez set the stage for reformulating natural law as the law of all men. Notably,
Article 38 of the Statute of the International Court of Justice includes “general principles of law
recognized by civilized nations” among the five sources of international law.
In the Philippines, the Civil Code Commission made use of natural law to warrant the
incorporation of “natural obligations.” In the Memorandum of the Code Commission (20
Lawyers Journal 460), the Commission stated that “equity, morality, fair dealing, natural justice
— these are after all, the abiding foundations of all positive law…The essence, therefore, of the
subject matter (Title III) is that the foundation is natural law as well as equity.”
Although there are debates on the precise details of human nature, which may go unresolved
because humans are by nature dynamic and evolving, some things remain fundamental to
surviving with dignity as a homo sapiens. In law, this refers to our common goals to seek justice,
to do what is right, to live in peace, harmony, and freedom, and to seek the truth. We share the
same blueprint of human genes. We can morally figure out the things that can go right and wrong
to human sustenance, progress and development.
While postmodernists such as Jean Paul-Sartre dismiss presumptions of “human nature,”
“human reason” and “human morality,” they still speak of “human conditions,” “human wishes,”
“human desires,” “human aggregates” and “human events.” Both naturalists and postmodernists
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can at least agree that human beings share “common experiences,” from which arise common
aspirations and desires that can be the basis of shared points and common rule.
II. WRESTLING FOR IDEAL LAW
Behold, I teach you the Superman. The Superman is the meaning of the earth.
— Friedrich Nietzche, Thus Spake Zarathustra
Ralph Waldo Emerson once said, “All philosophy is a footnote to Plato.” Much of
Westernized philosophical traditions root back to the Greeks, but two figures tower: Aristotle,
the father of many sciences; and his mentor, the philosopher-wrestler Plato.
As a young man, Plato was interested in politics. His original name was “Aristocles,” and for
his broad shoulder plates was renamed “Plato(n)” by his wrestling coach Ariston of Argos. It was
in his time that Athens, the first democracy, achieved its golden age and flourished in all fields of
learning. But Plato also witnessed Athens’ transition to oligarchy, and was disillusioned with its
politics after it sentenced his teacher, Socrates.
Plato used his mentor Socrates as a mouthpiece in his writings, such as in his earlier work on
the ideal regime, The Republic. Significantly, the “Socratic method” of dialogues or questionand-answer dialectic has been the preferred formula of teaching in law schools in the United
States and in the Philippines, to decipher if the student really understands what the law is saying
and if he or she can stand debates and cross examination.
Plato was referring to his mentor when he wrote the Allegory of the Cave, which illustrates
people who all their life lived in their own caves and watched only their shadows. These people
would disbelieve anyone able to escape from the cave to bear news of the light, as what Athens
did to the enlightened Socrates.
Plato traveled to Egypt, whose stable government fascinated him. He then went to Sicily and
befriended Dion, the son-in-law of Dionysius I, the city’s dictator. Plato tried to tutor and
influence Dion and Dionysius to adopt his ideal government. But the experiment failed, the two
relatives became enemies, and eventually Dion was killed. Plato had to revise many of his ideas
into his more mature work, The Laws.
There are, therefore, two phases in Plato’s legal philosophy: The Republic and The Laws. Both
works, however, have compelling propositions carried into modern-day governments.
The Republic and Philosopher-Kings
The Republic envisions a Statist type of regime ruled by a benevolent dictator — an educated
philosopher-king. A contemporary example would be the successful city-state of Singapore,
which rose to prosperity through the stern reforms of its feared but beloved dictator, Lee Kwan
Yew. Plato is often credited for utopian forms of government, where the State plans society
according to ideals, an idea embraced by Fascism and Communism alike. Plato stressed a World
of Ideas, with justice in its purest form, different from the phenomenal world. Ours is only a
shadow of the perfect world, like in the Christian dichotomy of heaven and earth. The role of the
ruler is to get society close to the perfect form.
Natural law, for Plato, is not the law of the common man, but the law of the ideal man. The
ideal man, much like our modern concept of the Super Man, does not exist, and yet we have a
common idea of what a perfect man should be and this should be the goal of law.
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The idealism of law has been associated with Plato. For instance, we craft marriage laws
because we want an ideal family, not just any family. Our political Constitution is meant to build
an ideal government. We dream of the ideal romance, the ideal politics, the ideal version of
ourselves. For if we are to base our legal expectations on the actual state of things, we may not
improve at all, or to get into higher standards of living.
Born from an aristocratic family, Plato approved of stratifying society into classes, just like in
the movie Divergent. But the basis would not be wealth, race, or gender, but education on justice,
goodness, and virtue. The State is hierarchically composed of the noble ruler (its head), the
warrior (the heart) and the workers (the stomach). The best state is run by the wisest. “The noble
should rule over the ignoble” and one’s level of education is supposed to determine one’s social
class.
An enlightened leadership, not laws, is what is necessary. The dictatorship of the philosopher
is justified since not everyone can be expected to be reasonable and capable of self-governance.
But the dictator himself must exude virtue and is not allowed to hoard private property.
Everything will be owned in common; child-bearing will be communal; fealty shall belong to the
State; and free expression in music and literature will be banned so that only beneficial
knowledge may be inculcated. Marxism and Stalinism later applied these ideas of Plato.
Laws and Preambles
But will the people choose to be ruled by philosophers in the first place? Or is this just a
philosophical fantasy?
Given that the government of philosophers may not always be feasible, The Laws stresses
instead the rule of law as a substitute to the rule of the philosopher. Reasoned thought must be
embodied in laws, and laws must have a preface so each citizen can understand the reason behind
the law. The need for preambles and explanatory notes, as found in proposed bills and
constitutions, goes back to Plato.
In The Laws, Plato conceived a more diplomatic state, whose laws appeal to people’s reason
and rational discourse. Punishment is not necessary, provided that through successful education
and socialization, the people have been predisposed to observe what the State contemplates as
right via rational persuasion. Again, laws have to be preceded by preambles to convince the
people of the rightness of their provisions.
Of course, it would be too much to expect that everyone will follow the reason of the law.
Those who are resistant will have to undergo both “instruction” and “constraint.” Only at this
time will correction happen, not only through education but through coercion. As much as a
diseased part of a body will need to be mutilated lest it infects the whole, capital punishment may
be imposed to protect the State from its vicious members. First, as a warning against injustice.
And second, to free the State from scoundrels. “The legislator should prescribe the death penalty
in such cases…but in no case whatsoever,” (862-3) Plato suggested. Our Philippine Constitution
operates on this same principle, where the death penalty shall not be imposed except for
compelling reasons as determined by legislators.
III. ARISTOTLE ON RATIONAL LAW
Reason is the life of the law, nay the common law is nothing else but reason.
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— Sir Edward Coke, Institutes: Commentary upon Littleton
Aristotle, the Father of Biology, is also regarded as the Father of Natural Law, having
articulated the existence of natural justice or natural right (dikaion physikon). He was the student
of Plato and the tutor of Alexander the Great, whose Hellenic empire spread the Greek
civilization and tested Aristotle’s thought that because men have a common nature, common
laws could work. Towering statues in stone of this classic philosopher and his mentor Plato hail
atop the Main Building (first and third statues left of the Tria Haec facing España Boulevard) of
the University of Santo Tomas in Manila, the oldest existing university in Asia where Philippine
bar exams are being held.
Aristotle observed that human beings have a rational nature that must be followed as a matter
of law. Although there are “particular or conventional laws” suited to each culture and times,
there is a “common law,” a “natural law,” a “general justice” by which men can objectively
judge whether certain laws serve their being human. Natural law must not be confused with
animalistic biologism because man as a moral creature has advanced from primitivity. The best
political system is supposed to cultivate human nature.
In the Nicomachean Ethics, Aristotle said that happiness is the final goal or end (telos) of all
of man’s pursuits. As much as people seek different goods, so do they have different views of
what can make them happy. But while people have different functions and interests in life, they
have a common function — reasoning — that separates them from other species.
To live well — to excel or flourish — is to function well. Reason makes us perceive what is
excessive, pursue a balanced life, and to seek what is appropriate, fair, just, and right; in other
words, the “golden mean” of living. Virtue is the practice of reason. A happy person has the
disposition (hexis) to virtue (arete); being a man of “character” (ethos), of moderation.
The law bids us to do the acts of a balanced and temperate man. “Virtue jurisprudence” would
thus ask the question: “Is this what a virtuous lawyer would do?” “Would a virtuous judge
agree?”
The Filipino hero, Jose Rizal, copied Aristotle in his Los Viajes article: “Virtue lies in the
middle ground.” Tolentino also followed the Aristotelian view that the purpose of law is
“happiness, which cannot exist for man, except through a permanent and stable equilibrium
between human personalities” (Commentaries and Jurisprudence on the Civil Code of the
Philippines I, 3).
In his Politics, Aristotle said that man, being a social animal, needs to live in a community.
Man’s first association is the family, then the neighborhood village, then the polis or city-state.
All these institutions are natural since no man is self-sufficient. Man is given the faculty of
language because he needs to socialize effectively.
Kinds of Government
Aristotle distinguished six types of constitutions. The first three are monarchy (one-man rule),
aristocracy (rule of few good men), and polity (rule of men with equal merits). Their worst forms
are the last three: tyranny, oligarchy, and radical democracy. Polity or democracy is the most
stable since monarchy risks the intemperance of its leader, while rivalries and infighting hound
an aristocracy. The aim of a good state is “the good life,” with the middle class as the basis of
progress. Democracies are more secure when there is a large number of empowered middle class
than when a population is divided into the extremes of poor and rich. Both the rich and the poor
classes have the tendency to inequity.
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A good government establishes a political law that conforms with rational principles of right
and equity. There must be a constitution (politeia) that provides general rules and guidelines on
the administration of the State. But for the particulars of the organization of offices, the
contingencies of life, and for settlement of future disputes, laws (nomos) must be promulgated.
When there is a grey area in the law, equity (epikeia) must be resorted to properly apply and
interpret the law. Interestingly, the Philippine Supreme Court has appealed to equity whenever
the law or a contract is silent or inadequate. “Lest it be forgotten, our courts are courts of both
law and equity” (DPWH v. Ronaldo Quiwa, et al., G.R. No. 183444, February 8, 2012). Article
10 of the New Civil Code also provides that “in case of doubt in the interpretation or application
of laws, it is presumed that the lawmaking body intended right and justice to prevail.”
III. THE STOICS ON JUS NATURALE
The good of the people is the greatest law.
— Marcus Tullius Cicero, writer, politician, and Roman orator
With the spread of the Roman Empire, natural law theory again became a practical solution to
justify laws that would be made universal. Applicable to both Roman citizens and gentiles, these
are jus gentium founded on jus naturale. The proponents were the Stoics who believed that there
is a “true law” discoverable by “right reason” and shared by all persons.
The contribution of the Stoics to natural law philosophy is its emphasis on the equality of all
men, governed by the same law. God is everywhere and everyone has a “divine spark.” The
Stoics believed that whatever one’s status in life, whether as a wealthy and powerful man like the
Stoic emperor Marcus Aurelius, or a slave like the Stoic Epictetus, one can find happiness in
doing what is good.
The term “stoic” has been identified with “apathy” because for Stoics, suppressing emotions
and sensitivity to pleasure or pain are needed to clear the mind of what is really good. Things
pleasurable are not necessarily good, and painful events are not necessarily evil. Even if one is
suffering, one can and must still pursue a life of goodness.
Nature has few necessities, as the Stoic Seneca advised. The State experiences want when its
citizens wish unlimited artifices or luxuries, instead of being satisfied with provisions of nature
that are enough for human needs.
Another Stoic philosopher, Marcus Tullius Cicero, was a Roman statesman, lawyer, orator,
consul, and constitutionalist. Thomas Jefferson described Cicero as “the father of eloquence and
philosophy.” John Adams praised him for being “the greatest statesman and philosopher united
in the same character.”
In De Legibus, Cicero wrote that “we are born for Justice, and that right is based, not upon
men’s opinions, but upon Nature.” Law “ought to be a reformer of vice and an incentive to
virtue.” Even though men have different beliefs and beset by numerous superstitions, Cicero
observed that men experience the same troubles, joys, desires, and fears. The same things
stimulate the senses. And although we may differ in our choice of words and in our language, we
express the same sentiments. We may have different cultures, but we recognize the same virtues.
Cicero asked: “But what nation does not love courtesy, kindliness, gratitude, and remembrance
of favors restored? What people do not hate and despise the haughty, the wicked, the cruel, and
the ungrateful? In as much as these prove to us that the whole human race is bound together in
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unity, it follows…that knowledge of the principles of right living is what makes men better”
(Book I, Chapters X-XIII).
By “law” inheres the idea of what is just and true. Unjust statutes are no more than “the rules
of a band of robbers in an assembly.” As much as the prescription of poison cannot be called as
“doctor’s prescription,” Cicero argued that neither can a statute be called “law” if it is irrational,
destructive, and unjust. For it is an ancient and natural standard for human laws to inflict
punishment upon the wicked and to defend and protect the good. In The Commonwealth, Cicero
stressed that the man who rejects natural law is denying his rational nature, his “better self.”
IV. AQUINAS ON NATURAL INCLINATIONS
How can the human machine — this strange, lovable, complex machine called Man, with its
mortal body, and its eternal soul — be made to function well? The answer is also simple: follow
the instructions of its Maker. Unless this is done, the human machine will become a futile,
senseless object, utterly incapable of fulfilling its destiny. These instructions from the Maker —
we call the Law.”
— Justice Edgardo Paras, Civil Code of the Philippines Annotated, Vol. I
From Eternal Law to Natural Law
According to Thomas Aquinas, the universe is governed by Divine Reason through an eternal
law. Everything that is part of the universe partakes of the eternal law. The eternal law particular
to humans is called “natural law.” By the nature of man, he will know what he ought to be and
ought to do.
Aquinas’ philosophy, in the words of Joseph Glanvil, is “Aristotle sainted.” Thanks to Islamic
commentators like Averroes, Aquinas was able to get hold of the works of Aristotle and adopt its
natural philosophy to Christian doctrine in his five-volume work, Summa Theologica.
What differentiates Aquinas from Aristotle and the secular philosophers of natural law is his
argument for the necessity of divine law, or law coming from divine revelation. While natural
law is enough to guide man to his “natural ends,” divine law is needed for him to realize his
“supernatural ends.” Because of the uncertainty of human reason and the variety of philosophies,
Aquinas argued that God has to reveal his true nature through sacred inspiration and
interventions in history. Human law and justice are also not always effective or correct, so there
must be a divine law to which people can ultimately appeal to.
Under the same God, man has natural equality with his fellow man. We can discern how our
interior conscience can convict us, for there is a judge who supervises our interior acts even if no
one sees. Those who do not recognize divine law still has natural law in their human nature. We
have a natural ability to tell right from wrong. St. Paul was referring to natural law when he said
that “when the Gentiles, who have not the law, do by nature those things that are of the law;
these having not the law are a law to themselves” (Romans 2:14).
In Question 94 of the Summa, Aquinas explained that the precepts of natural law refer to five
natural inclinations. Our primary inclination is to do good and avoid evil; by good, meaning that
which helps sustain our being, towards self-preservation, which is the secondary inclination. The
third natural inclination is to perpetuate ourselves, which is why we have sexual instincts that are
meant for procreation. Yet even if lust is natural, so are shame and self-restraint, and the exercise
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of reason to control sexual passions. The fourth is to live in community with other men, in
families, groups, and societies. The fifth is to use our reason and will, that is, to know the truth
and to make our own decisions.
Similarly, the Islamic scholar Averroes, in his treatise Justice and Jihad, referred to the five
maqasid or higher intents of the Islamic sharia to protect religion, life, property, offspring, and
reason, which are goals or purposes obvious to man. Another Islamic scholar, Al-Ghazali,
referred to these as “basic goods” for the benefit or interest of all (“maslaha”).
From Natural Law to Human Law
Natural law is a general guide with which human law must fill in the details and the gaps
through statutes. Natural law, as a general law of right, does not change because human nature
stays the same. If human nature will change, then man will no longer be the same species. What
changes are the application of natural law to particular cases, and the observance and articulation
of it, in human law.
For example, the principles of natural reason like the doctrine of self-defense do not change,
but the legal application and expression do. Change in human conditions, human errors or
corrections, customs, habits, and passions can make the human order of things to vary. Human
law is rightly changed as long as conductive to the common weal. Furthermore, what is legal can
be dispensed with in exceptional emergency cases, for “necessity knows no law” (S.T., I-II, Q.
96, A.6).
It is, however, important that there must be clear evidence of the benefit to be derived, or there
is extreme urgency, before departing from a law that has long been considered right and just and
has been part of custom. Without the sense of necessity or urgency, the binding power of the law
can be diminished by the prevailing custom. Yet human law can also be a manifestation of a new
custom. “Accordingly,” Aquinas said, “custom has the force of law, abolishes law, and is the
interpreter of law” (S.T., Q. 97, A.3). Custom is a source of law.
The immediate effect of law is to bring upon its subjects something to obey, or a duty. As a
corollary, it gives a right or the moral power to do things. Aquinas explained that right can be
two things: natural right or positive right. Natural rights are those that each man must give to
another man out of equality. Meanwhile, a positive right is borne by agreement, either by private
agreement among individuals, or by public agreement, by the ruler and the community.
Another Dominican, Francisco de Vitoria, revolutionized the concept of natural law into a
universality of rights. Since all humans share the same nature, no group of people has dominion
over another because “in the beginning, everything was common to all.” Vitoria, a founding
member of the School of Salamanca, questioned European colonialism and the Spanish
conquests of indigenous Americans as a violation of equal rights to life and liberty.
Contemplating the works of Aquinas, the Jesuit Francisco Suarez also questioned the “divine
right” of kings where a ruler is only accountable to God. Suarez argued that no man-made law
can override natural rights to life and liberty.
V. ENLIGHTENMENT PHILOSOPHERS ON NATURAL
RIGHTS
Natural rights are those which always appertain to man in the right of his existence.
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— Thomas Paine, The Rights of Man
During the Age of Science, much of the theological and metaphysical interpretations of natural
law had been abandoned, and there was renewed interest in the promise of human reason. The
revolutionary air was about the fundamental rights of man in his original state of nature and how
civil society must protect the trust of securing the natural rights of all. Natural law’s emphasis
from duties and restrictions was turned into a language of rights.
The French and American revolutionaries, the Illuminatis, the Freemasons, the Philippine
ilustrados, and the neo-Thomists developed the concept of natural rights and liberties (see
chapter on Political Law). The concept of natural rights as evident and common to man has been
adopted in the United States Declaration of Independence, the Constitution of the United States,
and the French Revolution’s Declaration of the Rights of Man and of the Citizen.
“Declarationism” insists that the Declaration of Independence is a natural law document that
should guide American Jurisprudence.
Human rights are rights that flow from human nature, from the demands and dignity of being
human, and therefore should be given to every human being. The difference between positivist
theory and natural law theory is that the former believes that rights are conventional, borne from
deliberate positive acts of rulers and subjects, whereas for the latter, rights are natural and
inherent.
Under natural law, natural rights do not need to be created but only need to be “recognized” or
“declared.” Society is a contract with natural rights as part of the terms. For example, the right to
life and the right to property may not be abolished by state legislation, because it is in the nature
of man to seek his survival and to secure possessions necessary to his well-being. Civil society
must exist to create civil rights that will secure, not abdicate, natural rights.
The emphasis on reason and rationality as the only absolutes in life, described as
“objectivism,” was revived by Ayn Rand, author of Atlas Shrugged. It provided relief for those
who believe in a conservative social organization based on the rational nature of man, without
the religious underpinnings.
VI. NATURAL LAW AS THE LAW OF NATIONS
There is but one law for all, namely, that law which governs all law, the law of our Creator,
the law of humanity, justice, equity — the law of nature and of nations.
— Edmund Burke, speech on Impeachment of Warren Hastings, May 28, 1794
Hugo Grotius
Hugo Grotius, the Dutch jurist who wrote The Law on War and Peace (De Jure Belli ac
Pacis), made natural law the basis for a “law of nations.” It earned him the title “Father of
International Law.” According to Grotius, man desires to live with his own kind, in a society that
is peaceful and organized.
Because of our natural sociability, we are impelled to do good not only for ourselves but for
others. If animals are driven by their blind appetites to do good to their offspring and to their
fellow species, what more human beings who are gifted with a faculty to socialize through
speech. Grotius observed that even children, before their trainings begun, already have a natural
disposition to do good to others.
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Our need for good relations with others is the basis of law. “For the very nature of man which,
even if we had no lack of anything, would lead us into mutual relations of society, is the mother
of the law of nature,” Grotius said. It is the law of nature to abide by pacts mutually consented
and entered into in good faith, and thus, among states, treaties must similarly be honored (pacta
sunt servanda) on the basis that humanity have things in common that makes citizens of all
nations equal.
There is the obligation to fulfill promises, making good a loss incurred through one’s fault,
and inflict penalties to those who do wrong to others. By mutual consent, too, it has become
possible for certain laws to originate among many or all states of men. The laws had in view the
advantage not of select states but the great society of states following “the law of nations.”
In any event, states may not take away the natural right to life and property of individuals.
Liberty is the power that we have over ourselves. A person would have a freedom to act without
constraints once his rights are violated.
Blackstone’s Commentaries
For Sir William Blackstone, in his Commentaries on the Laws of England, natural laws are
eternal immutable laws of good and evil that the Creator enabled our reason to discern. “That we
should live honestly, hurt nobody, and render to every one his due; to which these three general
precepts Justice has reduced the whole doctrine of the law”(Commentaries I) Blackstone said.
Man has natural duties, and there are those that we regard as wrong in themselves (mala in se),
wherein man is bound by conscience; and those that are wrong only because they were forbidden
(mala prohibita) where other than the penalty, violation does not bring guilt.
Under the “declaratory theory of precedent,” the judges do not create but only “declare,”
expound, or lay down the existence of a custom, and expresses commonly shared values.
Common law is the “accumulated wisdom of the ages.” The judge is “a living oracle” of the law
who gives witness to it.
The rule that natural reason has dictated to all men is the law of nations (quod vero naturalis
ratio inter omnes homines constituit, id apud omnes gentis custoditur vocatur que jus gentium).
The law of nations cannot be dictated by any particular State, or by any man, but depends
entirely upon the rules of natural law on the equality of men and mutuality of contracts, treaties,
leagues, and agreements.
Jacques Maritain
The law of nations is now known as “international law.” Its first universal document is
grounded on natural law theory, as the Universal Declaration of Human Rights was drafted by a
Catholic neo-Thomist and natural law ethicist Jacques Maritain. All subsequent UN documents
will carry the language of declaring rights applicable to “every person,” “every human being.”
For Maritain, natural imperatives are known through “connaturality” or our direct
acquaintance with human experience. International law developed from an understanding that
there are universal aspirations common to humanity, demandable everywhere as a matter of right
and must be made available to everyone. These are rights inherent to being human to which no
State can exempt itself, and violations of which will be regarded as crimes against humanity and
against the interest of the international community.
In The Rights of Men and Natural Law, Maritain argued that “the common good of society is
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their communion in the good life; it is therefore common to the whole and to the parts, which are
in themselves wholes, since the very notion of person means totality…it implies and demands the
recognition of the fundamental rights of the person and the rights of the family…of persons to
live as persons, and to their freedom of expansion or autonomy.”
Significantly, the Nazi officers during the Nuremberg trial were convicted based on natural
law, on crimes against humanity, even if this goes against the doctrine of nulla crimen sine lege
where there is no crime when there is no state law punishing it. Preceding the Nuremberg trial
was the Philippine case of Yamashita v. Styer (G.R. No. L-12, December 19, 1945), where the
Japanese General Tomoyuki Yamashita was persecuted for the invasion of the Philippines during
World War II. One of the arguments proffered by Justice Perfecto in his concurring opinion is
based on natural law. Yamashita might not be answerable under Philippine law but he was under
the universal law of mankind.
Jus cogens, meaning “compelling law,” is the term given to international norms that are
considered peremptory and from which no derogation is allowed under any circumstances.
Declarations of international human rights use terms such as “essential,” “universal,”
“inviolable,” and “inherent,” rooted in the belief in natural rights.
An exposition of the development of natural law and its importance in universal human rights
was made by former Chief Justice Puno in his separate opinion in Republic v. Sandiganbayan
(G.R. 194768, July 21, 2003). Natural law operates in the absence of an applicable positive law
or when there is a bad law.
The endorsement of jus naturale by the Roman emperors, and its codification into law, will be
the highlights of the next exposition on the tradition of civil law.
CHAPTER III CASE READINGS
ON THE HISTORY OF NATURAL LAW AND NATURAL RIGHTS
REPUBLIC OF THE PHILIPPINES v. SANDIGANBAYAN, ET AL.
(G.R. No. 104768, July 21, 2003)
PUNO, J., separate opinion:
It is my considered view that under this same natural law, private respondent Dimaano has a
right against unreasonable search and seizure and to exclude evidence obtained as a consequence
of such illegal act. To explain my thesis, I will first lay down the relevant law before applying it
to the facts of the case at bar. Tracking down the elusive law that will govern the case at bar will
take us to the labyrinths of philosophy and history. To be sure, the difficulty of the case at bar
lies less in the application of the law, but more in finding the applicable law. I shall take up the
challenge even if the route takes negotiating, but without trespassing, on political and religious
thickets.
II. Natural Law and Natural Rights
As early as the Greek civilization, man has alluded to a higher, natural standard or law to
which a state and its laws must conform. Sophocles unmistakably articulates this in his poignant
literary piece, Antigone. In this mid-fifth century Athenian tragedy, a civil war divided two
brothers, one died defending Thebes, and the other, Polyneices, died attacking it. The king
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forbade Polyneices’ burial, commanding instead that his body be left to be devoured by beasts.
But according to Greek religious ideas, only a burial — even a token one with a handful of earth
— could give repose to his soul. Moved by piety, Polyneices’ sister, Antigone, disobeyed the
command of the king and buried the body. She was arrested. Brought before the king who asks
her if she knew of his command and why she disobeyed, Antigone replies:
“. . .These laws were not ordained of Zeus,
And she who sits enthroned with gods below,
Justice, enacted not these human laws.
Nor did I deem that thou, a mortal man,
Couldst by a breath annul and override
The immutable unwritten laws of heaven.
They were not born today nor yesterday;
They die not; and none knoweth whence they sprang.”
Antigone was condemned to be buried alive for violating the order of the king.
Aristotle also wrote in his Nicomachean Ethics: “Of political justice part is natural, part legal
— natural, that which everywhere has the same force and does not exist by people’s thinking this
or that; legal, that which is originally indifferent, but when it has been laid down is not
indifferent, e.g. that a prisoner’s ransom shall be mina, or that a goat and not two sheep shall be
sacrificed, and again all the laws that are passed for particular cases, . . .” Aristotle states that
“(p)articular law is that which each community lays down and applies to its own members: this is
partly written and partly unwritten. Universal law is the law of Nature. For there really is, as
every one to some extent divines, a natural justice and injustice that is binding on all men, even
on those who have no association or covenant with each other. It is this that Sophocles’ Antigone
clearly means when she says that the burial of Polyneices was a just act in spite of the
prohibition: she means that it was just by nature.”
Later, the Roman orator Cicero wrote of natural law in the first century B.C. in this wise:
“True law is right reason in agreement with nature; it is of universal application, unchanging
and everlasting; it summons to duty by its commands, and averts from wrongdoing by its
prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though
neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to
attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed
from its obligations by senate or people, and we need not look outside ourselves for an
expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or
different laws now and in the future, but one eternal and unchangeable law will be valid for all
nations and at all times, and there will be one master and ruler, that is, God, over us all, for he is
the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing
from himself and denying his human nature, and by reason of this very fact he will suffer the
worst penalties, even if he escapes what is commonly considered punishment.”
This allusion to an eternal, higher, and universal natural law continues from classical antiquity
to this day. The face of natural law, however, has changed throughout the classical, medieval,
modern, and contemporary periods of history.
In the medieval times, shortly after 1139, Gratian published the Decretum Gratiani, a
collection and reconciliation of the canon laws in force, which distinguished between divine or
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natural law and human law. Similar to the writings of the earliest Church Fathers, he related this
natural law to the Decalogue and to Christ’s commandment of love of one’s neighbor. “The law
of nature is that which is contained in the Law and the Gospel, by which everyone is commanded
to do unto others as he would wish to be done unto him, and is prohibited from doing unto others
that which he would be unwilling to be done unto himself.” This natural law precedes in time
and rank all things, such that statutes whether ecclesiastical or secular, if contrary to law, were to
be held null and void.
The following century saw a shift from a natural law concept that was revelation-centered to a
concept related to man’s reason and what was discoverable by it, under the influence of
Aristotle’s writings which were coming to be known in the West. William of Auxerre
acknowledged the human capacity to recognize good and evil and God’s will, and made reason
the criterion of natural law. Natural law was thus id quod ius natural dicitur quod naturalis ratio
sine omni deliberatione aut sine magna dictat esse faciendum or “that which natural reason,
without much or even any need of reflection, tells us what we must do.” Similarly, Alexander of
Hales saw human reason as the basis for recognizing natural law and St. Bonaventure wrote that
what natural reason commands is called the natural law. By the thirteenth century, natural law
was understood as the law of right reason, coinciding with the biblical law but not derived from
it.
Of all the medieval philosophers, the Italian St. Thomas Aquinas is indisputably regarded as
the most important proponent of traditional natural law theory. He created a comprehensive and
organized synthesis of the natural law theory which rests on both the classical (in particular,
Aristotelian philosophy) and Christian foundation, i.e., on reason and revelation. His version of
the natural law theory rests on his vision of the universe as governed by a single, self-consistent
and overarching system of law under the direction and authority of God as the supreme lawgiver
and judge. Aquinas defined law as “an ordinance of reason for the common good, made by him
who has care of the community, and promulgated.” There are four kinds of laws in his natural
law theory: eternal, natural, human, and divine.
First, eternal law. To Aquinas, a law is a dictate of practical reason (which provides practical
directions on how one ought to act as opposed to “speculative reason” which provides
propositional knowledge of the way things are) emanating from the ruler who governs a perfect
community. Presupposing that Divine Providence rules the universe, and Divine Providence
governs by divine reason, then the rational guidance of things in God the Ruler of the universe
has the nature of a law. And since the divine reason’s conception of things is not subject to time
but is eternal, this kind of law is called eternal law. In other words, eternal law is that law which
is a “dictate” of God’s reason. It is the external aspect of God’s perfect wisdom, or His wisdom
applied to His creation. Eternal law consists of those principles of action that God implanted in
creation to enable each thing to perform its proper function in the overall order of the universe.
The proper function of a thing determines what is good and bad for it: the good consists of
performing its function while the bad consists of failing to perform it.
Second, natural law. This consists of principles of eternal law which are specific to human
beings as rational creatures. Aquinas explains that law, as a rule and measure, can be in a person
in two ways: in one way, it can be in him that rules and measures; and in another way, in that
which is ruled and measured since a thing is ruled and measured in so far as it partakes of the
rule or measure. Thus, since all things governed by Divine Providence are regulated and
measured by the eternal law, then all things partake of or participate to a certain extent in the
eternal law; they receive from it certain inclinations towards their proper actions and ends. Being
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rational, however, the participation of a human being in the Divine Providence, is most excellent
because he participates in providence itself, providing for himself and others. He participates in
eternal reason itself and through this, he possesses a natural inclination to right action and right
end. This participation of the rational creature in the eternal law is called natural law. Hence, the
psalmist says: “The light of Thy countenance, O Lord, is signed upon us, thus implying that the
light of natural reason, by which we discern what is good and what is evil, which is the function
of the natural law, is nothing else than an imprint on us of the Divine light. It is therefore evident
that the natural law is nothing else than the rational creature’s participation in the eternal law.” In
a few words, the “natural law is a rule of reason, promulgated by God in man’s nature, whereby
man can discern how he should act.”
Through natural reason, we are able to distinguish between right and wrong; through free will,
we are able to choose what is right. When we do so, we participate more fully in the eternal law
rather than being merely led blindly to our proper end. We are able to choose that end and make
our compliance with eternal law an act of self-direction. In this manner, the law becomes in us a
rule and measure and no longer a rule and measure imposed from an external source. The
question that comes to the fore then is what is this end to which natural law directs rational
creatures?
The first self-evident principle of natural law is that “good is to be pursued and done, and evil
is to be avoided. All other precepts of the natural law are based upon this, so that whatever the
practical reason naturally apprehends as man’s good (or evil) belongs to the precept of the
natural law as something to be done or avoided.” Because good is to be sought and evil avoided,
and good is that which is in accord with the nature of a given creature or the performance of a
creature’s proper function, then the important question to answer is what is human nature or the
proper function of man. Those to which man has a natural inclination are naturally apprehended
by reason as good and must thus be pursued, while their opposites are evil which must be
avoided. Aquinas identifies the basic inclinations of man as follows:
“1. To seek the good, including his highest good, which is eternal happiness with God.
2. To preserve himself in existence.
3. To preserve the species — that is, to unite sexually.
4. To live in community with other men.
5. To use his intellect and will — that is, to know the truth and to make his own decision.”
As living creatures, we have an interest in self-preservation; as animals, in procreation; and as
rational creatures, in living in society and exercising our intellectual and spiritual capacities in
the pursuit of knowledge.” God put these inclinations in human nature to help man achieve his
final end of eternal happiness. With an understanding of these inclinations in our human nature,
we can determine by practical reason what is good for us and what is bad. In this sense, natural
law is an ordinance of reason. Proceeding from these inclinations, we can apply the natural law
by deduction, thus: good should be done; this action is good; this action should therefore be
done. Concretely, it is good for humans to live peaceably with one another in society, thus this
dictates the prohibition of actions such as killing and stealing that harm society.
From the precepts of natural law, human reason needs to proceed to the more particular
determinations or specialized regulations to declare what is required in particular cases
considering society’s specific circumstances. These particular determinations, arrived at by
human reason, are called human laws (Aquinas’ positive law). They are necessary to clarify the
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demands of natural law. Aquinas identifies two ways by which something may be derived from
natural law: first, like in science, demonstrated conclusions are drawn from principles; and
second, as in the arts, general forms are particularized as to details like the craftsman determining
the general form of a house to a particular shape. Thus, according to Aquinas, some things are
derived from natural law by way of conclusion (such as “one must not kill” may be derived as a
conclusion from the principle that “one should do harm to no man”) while some are derived by
way of determination (such as the law of nature has it that the evildoer should be punished, but
that he be punished in this or that way is not directly by natural law but is a derived
determination of it). Aquinas says that both these modes of derivation are found in the human
law. But those things derived as a conclusion are contained in human law not as emanating
therefrom exclusively, but having some force also from the natural law. But those things which
are derived in the second manner have no other force than that of human law.
Finally, there is divine law which is given by God, i.e., the Old Testament and the New
Testament. This is necessary to direct human life for four reasons. First, through law, man is
directed to proper actions towards his proper end. This end, which is eternal happiness and
salvation, is not proportionate to his natural human power, making it necessary for him to be
directed not just by natural and human law but by divinely given law. Secondly, because of
uncertainty in human judgment, different people form different judgments on human acts,
resulting in different and even contrary laws. So that man may know for certain what he ought to
do and avoid, it was necessary for man to be directed in his proper acts by a God-given law for it
is certain that such law cannot err. Thirdly, human law can only judge the external actions of
persons. However, perfection of virtue consists in man conducting himself right in both his
external acts and in his interior motives. The divine law thus supervenes to see and judge both
dimensions. Fourthly, because human law cannot punish or forbid all evils, since in aiming to do
away with all evils it would do away with many good things and would hinder the advancement
of the common good necessary for human development, divine law is needed. For example, if
human law forbade backbiting gossip, in order to enforce such a law, privacy and trust that is
necessary between spouses and friends would be severely restricted. Because the price paid to
enforce the law would outweigh the benefits, gossiping ought to be left to God to be judged and
punished. Thus, with divine law, no evil would remain unforbidden and unpunished.
Aquinas’ traditional natural law theory has been advocated, recast and restated by other
scholars up to the contemporary period. But clearly, what has had a pervading and lasting impact
on the Western philosophy of law and government, particularly on that of the United States of
America which heavily influenced the Philippine system of government and constitution, is the
modern natural law theory.
In the traditional natural law theory, among which was Aquinas’, the emphasis was placed on
moral duties of man — both rulers and subjects — rather than on rights of the individual citizen.
Nevertheless, from this medieval theoretical background developed modern natural law theories
associated with the gradual development in Europe of modern secular territorial state. These
theories increasingly veered away from medieval theological trappings and gave particular
emphasis to the individual and his natural rights.
One far-reaching school of thought on natural rights emerged with the political philosophy of
the English man, John Locke. In the traditional natural law theory such as Aquinas’, the
monarchy was not altogether disfavored because as Aquinas says, “the rule of one man is more
useful than the rule of the many” to achieve “the unity of peace.” Quite different from Aquinas,
Locke emphasized that in any form of government, “ultimate sovereignty rested in the people
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and all legitimate government was based on the consent of the governed.” His political theory
was used to justify resistance to Charles II over the right of succession to the English throne and
the Whig Revolution of 1688–1689 by which James II was dethroned and replaced by William
and Mary under terms which weakened the power of the crown and strengthened the power of
the Parliament.
Locke explained his political theory in his major work, Second Treatise of Government,
originally published in 1690, where he adopted the modern view that human beings enjoyed
natural rights in the state of nature, before the formation of civil or political society. In this state
of nature, it is self-evident that all persons are naturally in a “state of perfect freedom to order
their actions, and dispose of their possessions and persons, as they think fit, within the bounds of
the law of nature, without asking leave or depending upon the will of any other man.” Likewise,
in the state of nature, it was self-evident that all persons were in a state of equality, “wherein all
the power and jurisdiction is reciprocal, no one having more than another; there being nothing
more evident, than that creatures of the same species and rank, promiscuously born to all the
same advantages of nature, and the use of the same faculties, should also be equal one amongst
another without subordination or subjection . . .” Locke quickly added, however, that though all
persons are in a state of liberty, it is not a state of license for the “state of nature has a law of
nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind,
who will but consult it, that being all equal and independent, no one ought to harm another in his
life health, liberty, or possessions. . .” Locke also alludes to an “omnipotent, and infinitely wise
maker” whose “workmanship they (mankind) are, made to last during his (the maker’s) . .
.pleasure.” In other words, through reason, with which human beings arrive at the law of nature
prescribing certain moral conduct, each person can realize that he has a natural right and duty to
ensure his own survival and well-being in the world and a related duty to respect the same right
in others, and preserve mankind. Through reason, human beings are capable of recognizing the
need to treat others as free, independent and equal as all individuals are equally concerned with
ensuring their own lives, liberties and properties. In this state of nature, the execution of the law
of nature is placed in the hands of every individual who has a right to punish transgressors of the
law of nature to an extent that will hinder its violation. It may be gathered from Locke’s political
theory that the rights to life, health, liberty and property are natural rights, hence each individual
has a right to be free from violent death, from arbitrary restrictions of his person and from theft
of his property. In addition, every individual has a natural right to defend oneself from and
punish those who violate the law of nature.
But although the state of nature is somewhat of an Eden before the fall, there are two harsh
“inconveniences” in it, as Locke puts them, which adversely affect the exercise of natural rights.
First, natural law being an unwritten code of moral conduct, it might sometimes be ignored if the
personal interests of certain individuals are involved. Second, without any written laws, and
without any established judges or magistrates, persons may be judges in their own cases and selflove might make them partial to their side. On the other hand, ill nature, passion and revenge
might make them too harsh to the other side. Hence, “nothing but confusion and disorder will
follow.” These circumstances make it necessary to establish and enter a civil society by mutual
agreement among the people in the state of nature, i.e., based on a social contract founded on
trust and consent. Locke writes:
“The only way whereby any one divests himself of his natural liberty, and puts on the bonds of
civil society, is by agreeing with other men to join and unite into a community for their
comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their
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properties (used in the broad sense, referring to life, liberty and property) and a greater security
against any, that are not of it.”
This collective agreement then culminated in the establishment of a civil government.
Three important consequences of Locke’s theory on the origin of civil government and its
significance to the natural rights of individual subjects should be noted. First, since it was the
precariousness of the individual’s enjoyment of his natural and equal right to life, liberty, and
property that justified the establishment of civil government, then the “central, overriding
purpose of civil government was to protect and preserve the individual’s natural rights. For just
as the formation by individuals of civil or political society had arisen from their desire to ‘unite
for the mutual Preservation of their Lives, Liberties and Estates, which I (Locke) call by the
general name, Property,’ so, too, did the same motive underlie — in the second stage of the
social contract — their collective decision to institute civil government.” Locke thus maintains,
again using the term “property” in the broad sense, that, “(t)he great and chief end, therefore, of
men’s uniting into common-wealths, and putting themselves under government, is the
preservation of their property.” Secondly, the central purpose that has brought a civil government
into existence, i.e., the protection of the individual’s natural rights, sets firm limits on the
political authority of the civil government. A government that violates the natural rights of its
subjects has betrayed their trust, vested in it when it was first established, thereby undermining
its own authority and losing its claim to the subjects’ obedience. Third and finally, individual
subjects have a right of last resort to collectively resist or rebel against and overthrow a
government that has failed to discharge its duty of protecting the people’s natural rights and has
instead abused its powers by acting in an arbitrary or tyrannical manner. The overthrow of
government, however, does not lead to dissolution of civil society which came into being before
the establishment of civil government.
Locke’s ideas, along with other modern natural law and natural rights theories, have had a
profound impact on American political and legal thought. American law professor Philip
Hamburger observes that American natural law scholars generally agree “that natural law
consisted of reasoning about humans in the state of nature (or absence of government)” and tend
“to emphasize that they were reasoning from the equal freedom of humans and the need of
humans to preserve themselves.” As individuals are equally free, they did not have the right to
infringe the equal rights of others; even self-preservation typically required individuals to
cooperate so as to avoid doing unto others what they would not have others do unto them. With
Locke’s theory of natural law as foundation, these American scholars agree on the well-known
analysis of how individuals preserved their liberty by forming government, i.e., that in order to
address the insecurity and precariousness of one’s life, liberty and property in the state of nature,
individuals, in accordance with the principle of self-preservation, gave up a portion of their
natural liberty to civil government to enable it “to preserve the residue.” “People must cede to
[government] some of their natural rights, in order to vest it with powers.” That individuals “give
up a part of their natural rights to secure the rest” in the modern natural law sense is said to be
“an old hackneyed and well known principle” thus:
“That Man, on entering into civil society, of necessity, sacrifices a part of his natural liberty,
has been pretty universally taken for granted by writers on government. They seem, in general,
not to have admitted a doubt of the truth of the proposition. One feels as though it was treading
on forbidden ground, to attempt a refutation of what has been advanced by a Locke, a Bacari[a],
and some other writers and statesmen.”
But, while Locke’s theory showed the necessity of civil society and government, it was careful
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to assert and protect the individual’s rights against government invasion, thus implying a theory
of limited government that both restricted the role of the state to protect the individual’s
fundamental natural rights to life, liberty, and property and prohibited the state, on moral
grounds, from violating those rights. The natural rights theory, which is the characteristic
American interpretation of natural law, serves as the foundation of the well-entrenched concept
of limited government in the United States. It provides the theoretical basis of the formulation of
limits on political authority vis-à-vis the superior right of the individual which the government
should preserve.
Locke’s ideas undoubtedly influenced Thomas Jefferson, the eminent statesman and
“philosopher of the (American) revolution and of the first constitutional order which free men
were permitted to establish.” Jefferson espoused Locke’s theory that man is free in the state of
nature. But while Locke limited the authority of the state with the doctrine of natural rights,
Jefferson’s originality was in his use of this doctrine as basis for a fundamental law or
constitution established by the people. To obviate the danger that the government would limit
natural liberty more than necessary to afford protection to the governed, thereby becoming a
threat to the very natural liberty it was designed to protect, people had to stipulate in their
constitution which natural rights they sacrificed and which not, as it was important for them to
retain those portions of their natural liberty that were inalienable, that facilitated the preservation
of freedom, or that simply did not need to be sacrificed. Two ideas are therefore fundamental in
the constitution: one is the regulation of the form of government and the other, the securing of
the liberties of the people. Thus, the American Constitution may be understood as comprising
three elements. First, it creates the structure and authority of a republican form of government;
second, it provides a division of powers among the different parts of the national government and
the checks and balances of these powers; and third, it inhibits government’s power vis-à-vis the
rights of individuals, rights existent and potential, patent and latent. These three parts have one
prime objective: to uphold the liberty of the people.
But while the constitution guarantees and protects the fundamental rights of the people, it
should be stressed that it does not create them. As held by many of the American Revolution
patriots, “liberties do not result from charters; charters rather are in the nature of declarations of
pre-existing rights.” John Adams, one of the patriots, claimed that natural rights are founded “in
the frame of human nature, rooted in the constitution of the intellect and moral world.” Thus, it is
said of natural rights vis-à-vis the constitution:
“. . . (t)hey exist before constitutions and independently of them. Constitutions enumerate
such rights and provide against their deprivation or infringement, but do not create them.
It is supposed that all power, all rights, and all authority are vested in the people before they form
or adopt a constitution. By such an instrument, they create a government, and define and limit the
powers which the constitution is to secure and the government respect. But they do not thereby
invest the citizens of the commonwealth with any natural rights that they did not before possess.”
(emphasis supplied)
A constitution is described as follows:
“A Constitution is not the beginning of a community, nor the origin of private rights; it is not
the fountain of law, nor the incipient state of government; it is not the cause, but consequence, of
personal and political freedom; it grants no rights to the people, but is the creature of their power,
the instrument of their convenience. Designed for their protection in the enjoyment of the
rights and powers which they possessed before the Constitution was made, it is but the
framework of the political government, and necessarily based upon the preexisting condition of
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laws, rights, habits and modes of thought. There is nothing primitive in it; it is all derived from a
known source. It presupposes an organized society, law, order, propriety, personal freedom, a
love of political liberty, and enough of cultivated intelligence to know how to guard against the
encroachments of tyranny.” (emphasis supplied)
That Locke’s modern natural law and rights theory was influential to those who framed and
ratified the United States constitution and served as its theoretical foundation is undeniable. In a
letter in which George Washington formally submitted the Constitution to Congress in
September 1787, he spoke of the difficulties of drafting the document in words borrowed from
the standard eighteenth-century natural rights analysis:
“Individuals entering into society, must give up a share of liberty to preserve the rest.
The magnitude of the sacrifice must depend as well on situation and circumstance, as on the
object to be obtained. It is at all times difficult to draw with precision the line between those
rights which must be surrendered, and those which may be reserved . . . .” (emphasis supplied)
Natural law is thus to be understood not as a residual source of constitutional rights but
instead, as the reasoning that implied the necessity to sacrifice natural liberty to government in a
written constitution. Natural law and natural rights were concepts that explained and justified
written constitutions.
With the establishment of civil government and a constitution, there arises a conceptual
distinction between natural rights and civil rights, difficult though to define their scope and
delineation. It has been proposed that natural rights are those rights that “appertain to man in
right of his existence.” These were fundamental rights endowed by God upon human beings, “all
those rights of acting as an individual for his own comfort and happiness, which are not injurious
to the natural rights of others.” On the other hand, civil rights are those that “appertain to man in
right of his being a member of society.” These rights, however, are derived from the natural
rights of individuals since:
“Man did not enter into society to become worse off than he was before, nor to have fewer
rights than he had before, but to have those rights better secured. His natural rights are the
foundation of all his rights.”
Civil rights, in this sense, were those natural rights — particularly rights to security and
protection – which by themselves, individuals could not safeguard, rather requiring the collective
support of civil society and government. Thus, it is said:
“Every civil right has for its foundation, some natural right preexisting in the individual, but to
the enjoyment of which his individual power is not, in all cases, sufficiently competent.”
The distinction between natural and civil rights is “between that class of natural rights which
man retains after entering into society, and those which he throws into the common stock as a
member of society.” The natural rights retained by the individuals after entering civil society
were “all the intellectual rights, or rights of the mind,” i.e., the rights to freedom of thought, to
freedom of religious belief and to freedom of expression in its various forms. The individual
could exercise these rights without government assistance, but government has the role of
protecting these natural rights from interference by others and of desisting from itself infringing
such rights. Government should also enable individuals to exercise more effectively the natural
rights they had exchanged for civil rights — like the rights to security and protection — when
they entered into civil society.
American natural law scholars in the 1780s and early 1790s occasionally specified which
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rights were natural and which were not. On the Lockean assumption that the state of nature was
a condition in which all humans were equally free from subjugation to one another and had no
common superior, American scholars tended to agree that natural liberty was the freedom of
individuals in the state of nature. Natural rights were understood to be simply a portion of this
undifferentiated natural liberty and were often broadly categorized as the rights to life, liberty,
and property; or life, liberty and the pursuit of happiness. More specifically, they identified as
natural rights the free exercise of religion, freedom of conscience, freedom of speech and press,
right to self-defense, right to bear arms, right to assemble and right to one’s reputation. In
contrast, certain other rights, such as habeas corpus and jury rights, do not exist in the state of
nature, but exist only under the laws of civil government or the constitution because they are
essential for restraining government. They are called civil rights not only in the sense that they
are protected by constitutions or other laws, but also in the sense that they are acquired rights
which can only exist under civil government.
In his Constitutional Law, Black states that natural rights may be used to describe those rights
which belong to man by virtue of his nature and depend upon his personality. “His existence as
an individual human being, clothed with certain attributes, invested with certain capacities,
adapted to certain kind of life, and possessing a certain moral and physical nature, entitles him,
without the aid of law, to such rights as are necessary to enable him to continue his existence,
develop his faculties, pursue and achieve his destiny.” An example of a natural right is the right
to life. In an organized society, natural rights must be protected by law, “and although they owe
to the law neither their existence nor their sacredness, yet they are effective only when
recognized and sanctioned by law.” Civil rights include natural rights as they are taken into the
sphere of law. However, there are civil rights which are not natural rights such as the right of
trial by jury. This right is not founded in the nature of man, nor does it depend on personality, but
it falls under the definition of civil rights which are the rights secured by the constitution to all its
citizens or inhabitants not connected with the organization or administration of government
which belong to the domain of political rights. “Natural rights are the same all the world over,
though they may not be given the fullest recognition under all governments. Civil rights which
are not natural rights will vary in different states or countries.”
From the foregoing definitions and distinctions, we can gather that the inclusions in and
exclusions from the scope of natural rights and civil rights are not well-defined. This is
understandable because these definitions are derived from the nature of man which, in its
profundity, depth, and fluidity, cannot simply and completely be grasped and categorized. Thus,
phrases such as “rights appertain(ing) to man in right of his existence”, or “rights which are a
portion of man’s undifferentiated natural liberty, broadly categorized as the rights to life, liberty,
and property; or life, liberty and the pursuit of happiness”, or “rights that belong to man by virtue
of his nature and depend upon his personality” serve as guideposts in identifying a natural right.
Nevertheless, although the definitions of natural right and civil right are not uniform and exact,
we can derive from the foregoing definitions that natural rights exist prior to constitutions, and
may be contained in and guaranteed by them. Once these natural rights enter the constitutional or
statutory sphere, they likewise acquire the character of civil rights in the broad sense (as opposed
to civil rights distinguished from political rights), without being stripped of their nature as natural
rights. There are, however, civil rights which are not natural rights but are merely created and
protected by the constitution or other law such as the right to a jury trial.
Long after Locke conceived of his ideas of natural rights, civil society, and civil government,
his concept of natural rights continued to flourish in the modern and contemporary period. About
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a hundred years after the Treatise of Government, Locke’s natural law and rights theory was
restated by the eighteenth-century political thinker and activist, Thomas Paine. He wrote his
classic text, The Rights of Man, Part 1 where he argued that the central purpose of all
governments was to protect the natural and imprescriptible rights of man. Citing the 1789 French
Declaration of the Rights of Man and of Citizens, Paine identified these rights as the right to
liberty, property, security and resistance of oppression. All other civil and political rights — such
as to limits on government, to freedom to choose a government, to freedom of speech, and to fair
taxation — were derived from those fundamental natural rights.
Paine inspired and actively assisted the American Revolution and defended the French
Revolution. His views were echoed by the authors of the American and the French declarations
that accompanied these democratic revolutions. The American Declaration of Independence of
July 4, 1776, the revolutionary manifesto of the thirteen newly-independent states of America
that were formerly colonies of Britain, reads:
“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed
by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the
Pursuit of Happiness. That to secure these Rights, Governments are instituted among Men,
deriving their just Powers from the Consent of the Governed, that whenever any Form of
Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish
it, and to institute new Government, laying its Foundation on such Principles, and organizing its
Powers in such Form as to them shall seem most likely to effect their Safety and Happiness.”
(emphasis supplied)
His phrase “rights of man” was used in the 1789 French Declaration of the Rights of Man and
of Citizens, proclaimed by the French Constituent Assembly in August 1789, viz:
“The representatives of the French people, constituted in a National Assembly, considering
that ignorance, oblivion or contempt of the Rights of Man are the only causes of public
misfortunes and of the corruption of governments, have resolved to lay down in a solemn
Declaration, the natural, inalienable and sacred Rights of Man, in order that this Declaration,
being always before all the members of the Social Body, should constantly remind them of their
Rights and their Duties. . .” (emphasis supplied)
Thereafter, the phrase “rights of man” gradually replaced “natural rights” in the latter period of
the eighteenth century, thus removing the theological assumptions of medieval natural law
theories. After the American and French Revolutions, the doctrine of the rights of man became
embodied not only in succinct declarations of rights, but also in new constitutions which
emphasized the need to uphold the natural rights of the individual citizen against other
individuals and particularly against the state itself.
Considerable criticism was, however, hurled against natural law and natural rights theories,
especially by the logical positivist thinkers, as these theories were not empirically verifiable.
Nevertheless, the concept of natural rights or rights of man regained force and influence in the
1940s because of the growing awareness of the wide scale violation of such rights perpetrated by
the Nazi dictatorship in Germany. The British leader Winston Churchill and the American leader
Franklin Roosevelt stated in the preface of their Atlantic Charter in 1942 that “complete victory
over their enemies is essential to decent life, liberty, independence and religious freedom, and to
preserve human rights and justice, in their own land as well as in other lands.” (emphasis
supplied) This time, natural right was recast in the idea of “human rights” which belong to every
human being by virtue of his or her humanity. The idea superseded the traditional concept of
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rights based on notions of God-given natural law and of social contract. Instead, the refurbished
idea of “human rights” was based on the assumption that each individual person was entitled to
an equal degree of respect as a human being.
With this historical backdrop, the United Nations Organization published in 1948 its Universal
Declaration of Human Rights (UDHR) as a systematic attempt to secure universal recognition of
a whole gamut of human rights. The Declaration affirmed the importance of civil and political
rights such as the rights to life, liberty, property; equality before the law; privacy; a fair trial;
freedom of speech and assembly, of movement, of religion, of participation in government
directly or indirectly; the right to political asylum, and the absolute right not to be tortured. Aside
from these, but more controversially, it affirmed the importance of social and economic rights.
The UDHR is not a treaty and its provisions are not binding law, but it is a compromise of
conflicting ideological, philosophical, political, economic, social and juridical ideas which
resulted from the collective effort of 58 states on matters generally considered desirable and
imperative. It may be viewed as a “blending (of) the deepest convictions and ideals of different
civilizations into one universal expression of faith in the rights of man.”
On December 16, 1966, the United Nations General Assembly adopted the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on
Civil and Political Rights (ICCPR) and the Optional Protocol to the Civil and Political Rights
providing for the mechanism of checking state compliance to the international human rights
instruments such as through a reportorial requirement among governments. These treaties
entered into force on March 23, 1976 and are binding as international law upon governments
subscribing to them. Although admittedly, there will be differences in interpreting particular
statements of rights and freedoms in these United Nations instruments “in the light of varied
cultures and historical traditions, the basis of the covenants is a common agreement on the
fundamental objective of the dignity and worth of the human person. Such agreement is implied
in adherence to the (United Nations) Charter and corresponds to the universal urge for freedom
and dignity which strives for expression, despite varying degrees of culture and civilization and
despite the countervailing forces of repression and authoritarianism.”
Human rights and fundamental freedoms were affirmed by the United Nations Organization in
the different instruments embodying these rights not just as a solemn protest against the Nazifascist method of government, but also as a recognition that the “security of individual rights,
like the security of national rights, was a necessary requisite to a peaceful and stable world
order.” Moskowitz wrote:
“The legitimate concern of the world community with human rights and fundamental
freedoms stems in large part from the close relation they bear to the peace and stability of the
world. World War II and its antecedents, as well as contemporary events, clearly demonstrate the
peril inherent in the doctrine which accepts the state as the sole arbiter in questions pertaining to
the rights and freedoms of the citizen. The absolute power exercised by a government over its
citizens is not only a source of disorder in the international community; it can no longer be
accepted as the only guaranty of orderly social existence at home. But orderly social existence is
ultimately a matter which rests in the hands of the citizen. Unless the citizen can assert his
human rights and fundamental freedoms against his own government under the protection of the
international community, he remains at the mercy of the superior power.”
Similar to natural rights and civil rights, human rights as the refurbished idea of natural right
in the 1940s, eludes definition. The usual definition that it is the right which inheres in persons
from the fact of their humanity seemingly begs the question. Without doubt, there are certain
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rights and freedoms so fundamental as to be inherent and natural such as the integrity of the
person and equality of persons before the law which should be guaranteed by all constitutions of
all civilized countries and effectively protected by their laws. It is nearly universally agreed that
some of those rights are religious toleration, a general right to dissent, and freedom from
arbitrary punishment. It is not necessarily the case, however, that what the law guarantees as a
human right in one country should also be guaranteed by law in all other countries. Some human
rights might be considered fundamental in some countries, but not in others. For example, trial
by jury which we have earlier cited as an example of a civil right which is not a natural right, is a
basic human right in the United States protected by its constitution, but not so in Philippine
jurisdiction. Similar to natural rights, the definition of human rights is derived from human
nature, thus understandably not exact. The definition that it is a “right which inheres in persons
from the fact of their humanity”, however, can serve as a guideline to identify human rights. It
seems though that the concept of human rights is broadest as it encompasses a human person’s
natural rights (e.g, religious freedom) and civil rights created by law (e.g. right to trial by jury).
In sum, natural law and natural rights are not relic theories for academic discussion, but have
had considerable application and influence. Natural law and natural rights theories have played
an important role in the Declaration of Independence, the Abolition (anti-slavery) movement,
and parts of the modern Civil Rights movement. In charging Nazi and Japanese leaders with
“crimes against humanity” at the end of the Second World War, Allied tribunals in 1945 invoked
the traditional concept of natural law to override the defense that those charged had only been
obeying the laws of the regimes they served. Likewise, natural law, albeit called by another name
such as “substantive due process” which is grounded on reason and fairness, has served as legal
standard for international law, centuries of development in the English common law, and certain
aspects of American constitutional law. In controversies involving the Bill of Rights, the natural
law standards of “reasonableness” and “fairness” or “justified on balance” are used. Questions
such as these are common: “Does this form of government involvement with religion endanger
religious liberty in a way that seems unfair to some group? Does permitting this restriction on
speech open the door to government abuse of political opponents? Does this police investigative
practice interfere with citizens’ legitimate interests in privacy and security?” Undeniably, natural
law and natural rights theories have carved their niche in the legal and political arena.
III. Natural Law and Natural Rights in Philippine Cases and the Constitution
A. Traces of Natural Law and Natural Rights Theory in Supreme Court Cases
Although the natural law and natural rights foundation is not articulated, some Philippine
cases have made reference to natural law and rights without raising controversy. For example, in
People v. Asas, the Court admonished courts to consider cautiously an admission or confession
of guilt especially when it is alleged to have been obtained by intimidation and force. The Court
said: “(w)ithal, aversion of man against forced self-affliction is a matter of Natural Law.” In
People v. Agbot, we did not uphold lack of instruction as an excuse for killing because we
recognized the “offense of taking one’s life being forbidden by natural law and therefore within
instinctive knowledge and feeling of every human being not deprived of reason.” In Mobil Oil
Philippines, Inc. v. Diocares, et al., Chief Justice Fernando acknowledged the influence of
natural law in stressing that the element of a promise is the basis of contracts. In Manila
Memorial Park Cemetery, Inc. v. Court of Appeals, et al., the Court invoked the doctrine of
estoppel which we have repeatedly pronounced is predicated on, and has its origin in equity,
which broadly defined, is justice according to natural law. In Yu Con v. Ipil, et al., we
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recognized the application of natural law in maritime commerce.
The Court has also identified in several cases certain natural rights such as the right to liberty,
the right of expatriation, the right of parents over their children which provides basis for a
parent’s visitorial rights over his illegitimate children, and the right to the fruits of one’s industry.
SOCRATES AND PLATO ON ACADEMIC FREEDOM
ATENEO DE MANILA UNIVERSITY, ET AL. v. HON. IGNACIO CAPULONG , ET AL.
(G.R. No. 99327, May 27, 1993)
ROMERO, J.:
xxx
At this juncture, it would be meet to recall the essential freedoms subsumed by Justice Felix
Frankfurter in the term “academic freedom” cited in the case of Sweezy v. New Hampshire, thus:
(1) who may teach: (2) what may be taught; (3) how it shall be taught; and (4) who may be
admitted to study.
Socrates, the “first of the great moralists of Greece,” proud to claim the title “gadfly of the
State” has deservedly earned for himself a respected place in the annals of history as a martyr to
the cause of free intellectual inquiry. To Plato, this great teacher of his was the “best, the most
sensible, and the most sensible, and the most just man of his age.” In 399 B.C., he willingly
quaffed the goblet of hemlock as punishment for alleged “corruption” of the youth of Athens. He
describes in his own words how this charge of “corruption,” the forerunner of the concept of
academic freedom, came about:
Young men of the richer classes, who have not much to do, come about me of their own
accord: they like to heart the pretenders examined, and they often imitate me, and examine others
themselves; there are plenty of person, as they soon discover, who think that they know
something, but really know little or nothing; and then those who are examined by them instead of
being angry with themselves are angry with me. This confounded Socrates, they say; this
villainous misleader of youth. And then if somebody asks them, Why, what evil does he practice
or teach? they do not know, and cannot tell; but in order that they may not appear to be at a loss,
they repeat the ready-made charges which are used against all philosophers about teaching things
up in the clouds and under the earth, and having no gods, and making the worse appear the better
cause; for they do not like to confess that their pretense of knowledge has been detected —
which is the truth; and as they are numerous and ambitious and energetic, and are all in battle
array and have persuasive tongues, they have filled your ears with their loud and inveterate
calumnies.
Since Socrates, numberless individuals of the same heroic mold have similarly defied the
stifling strictures of authority, whether State, Church, or various interest groups, to be able to
give free rein to their ideas. Particularly odious were the insidious and blatant attempts at thought
control during the time of the Inquisition until even the Medieval universities, renowned as
intellectual centers in Europe, gradually lost their autonomy.
In time, such noble strivings, gathering libertarian encrustations along the way, were gradually
crystallized in the cluster of freedoms which awaited the champions and martyrs of the dawning
modern age. This was exemplified by the professors of the new German universities in the 16th
and 17th centuries such as the Universities of Leiden (1554), Helmstatdt (1574) and Heidelberg
(1652). The movement back to freedom of inquiry gained adherents among the exponents of
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fundamental human rights of the 19th and 20th centuries. “Academic freedom”, the term as it
evolved to describe the emerging rights related to intellectual liberty, has traditionally been
associated with freedom of thought, speech, expression and the press; in other words, with the
right of individuals in university communities, such as professors, researchers and
administrators, to investigate, pursue, discuss and, in the immortal words of Socrates, “to follow
the argument wherever it may lead,” free from internal and external interference or pressure.
ANCIENT PHILOSOPHERS ON THE LAW OF NATIONS
TOMOYUKI YAMASHITA v. WILHELM D. STYER
(G.R. No. L-129, December 19, 1945)
PERFECTO, J., concurring and dissenting:
xxx
4. IN ANCIENT GREECE AND ROME
Many of the basic ideas which prevail today in the customs and usages of nations and became
part of the international law emerged from the human mind centuries before the Christian Era.
Such is the idea that prisoners of war are entitled to humane treatment, that treasons of war
should be discountenanced, and that belligerents must abstain from causing harm to noncombatants.
On his return to Peloponnesus in 427 B. C., Alcibiades touched at Mayonnesus and there slew
most of the captives taken on his voyage. According to Thucydides, the Samian exiles
remonstrated with him for putting to the death prisoners who have not been in open hostilities
against him.
The same historian narrates that the year before, the Mytileneans of Lesbos revolted from
Athens, but they were obliged to capitulate in the following year to Paches, who dispatched to
Athens over a thousand prisoners. Their disposal provoked discussion in the Athenian assembly.
At the instigation of Cleon, the demagogue and the former opponent of Pericles, an order was
issued to slaughter not only the men who arrived in Athens, but the entire made population of
Mytilene that was of military age, and to enslave the women and children. The execution of the
order was delayed, and another assembly was called. There an amendment of Theodotus was
carried, and the previous order countermanded.
The Roman treatment of prisoners was less rigorous than the Greek. As stated by Virgilius,
“the Roman policy from the first was, on the one hand, debellare super bos, to subdue the proud
and arrogant peoples and, on the other, parcellare subiectes, to spare those who have submitted.”
“Dionisius states that a rule existed in Rome as early as the time of Romulus, which prohibited
the putting to death or enslaving on men captured in the conquered cities, and also the
devastation of their territories; it provided, on the contrary, for the sending of inhabitants, either
to take possession by lot of the some part of the country, for making the conquered cities Roman
colonies, and even for conceding to them some of the privileges Roman citizenship.” (Philipps
on the International Law and Custom of Ancient Greece and Rome, Vol. II, p. 254.)
In 407 B.C. the Spartan commander Callicraditas took the town of Methymna by storm. In
spite of the persuasion of his allies, according to Xenophon, he refused to the sell the Athenian
garrison and Methymnaean citizens as slaves, declaring that so long as he exercises the command
no Greek should ever be reduced to slavery. Grote in his History of Greece could not refrain
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from praising this gesture of the Macedonian admiral by saying: “No one who has familiarized
himself with the details of Grecian warfare can feel the full grandeur and sublimity of this
proceeding . . . It is not merely that the prisoners were spared and set free . . . It is that this
particular act of generosity was performed in the name and for the recommendation of PanHellenic brotherhood and Pan-Hellenic independence for the foreigner . . . It is, lastly, that the
step was taken in resistance to the formal requisition on the part of his allies.” (History of
Greece, Vol. VI p. 387.)
Philip, the Macedonian King, liberated Athenian prisoners without ransom after the taking of
Olynthus in 348 B.C. and ten years later after the Battle of Chaeronee, he dismissed the prisoners
with all their baggage.
Xenophon quotes Agesileus reminding his soldiers that “prisoners were meant to be kept, and
not criminals to be punished.” And Pausanias narrates that when Epaminondas, the greatest
Theban general, had gathered together, he nominally assigned to each of the men he captured
there a different nationality, and set them all free, and there are cases where captives were
dismissed on parole to have chance of finding ransomers.
Among the Greeks much was done to humanize warfare, and to remove from it the atrocities
which prevailed amongst the most of the nations antiquity. The Oracle of Delfi refused to listen
to the Milesians as they had not duly expiated the excesses committed in their civil wars, though
it responded to all, others, even to barbarians, who consulted it. “C’etait comme
l’excommunication du paganism,” comments Leurent (Vol. II, p. 135).
Poets, philosophers, artist, and men of intellectual distinction in general, even though they
became invested with enemy character on the outbreak of war, were honored and respected. In
335 B.C. Alexander the Great destroyed Thebes, but he left Pindar’s house uninjured and
honored the poet’s descendants. In ancient Hellas was already known the practice of neutralizing
cities and protecting them from the ravages of war. Temples, priest, and embassies were
considered inviolable. The right sanctuary was universally recognized. Mercy was shown to
suppliant and helpless captives. Safe-conducts were granted and respected. Burial of dead was
permitted, and graves were unmolested. It was considered wrong to cut off or poison the enemy’s
water supply, or to make use of poisonous weapons. Treacherous strategems of whatever
description were condemned as being contrary to civilized warfare. Poets and philosophers,
orators and historians proclaimed humane doctrines. Plato constructed his ideal republic on the
basis of what he conceived to be perfect justice. Aristotle condemned the principle of retaliation
as being antagonistic to true justice. Euripides speaks of excesses in war not only as acts of
intrinsic wickedness and transgression against universal law, but, indeed, as a suicidal folly on
the part of the offender. In one of his dramas he makes Poseidon declare: “But foolish is the
mortal who lays waste cities, temple, and tombs, the sanctuaries of the dead; for having
consigned them to solitude, he is the one himself to perish afterwards.”
The mild and clement nature shown by Caesar to many belligerent peoples was recognized
even by his political enemy Cicero to whom he wrote: You are not mistaken about me . . . .
Nothing is far from my nature than cruelty . . . . I am told that some prisoners I set free seize the
first opportunity to take up arms against me; nevertheless, I shall not renounce my policy.”
The Roman conduct far transcended in its civilized and humane character that of the German
leader Arminius, who is reported by Tacitus to have burned to death and otherwise barbarously
slain the centurions and tribunes of the Varian legions, and nailed the skulls to trees. The
sanction of Roman jurisprudence and the submission to the fundamental principles of justice
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proved effective.
Livy narrates that in 393 B.C. a certain school master of Falerii, who was in charge of the sons
of the principal citizens of the town, took the opportunity to lead them to the Roman camp and
threw them into the power of the enemy. The roman general Camillus, indignant at this treason,
ordered the boys to drive their master back to the town, and flog him all the way. There were, he
pointed, laws of war as well as of peace, and the Romans had learn to put them into practice not
less justly than bravely — “sunt et belli, sicut pacis, iura; iusteque, ea, non, minus, quam fortiter,
didicimus gerere.”
When Adgantestrius made an offer to the Romans Senate to poison Arminius, according to
Tacitus, he was at once informed that it was not by secret treachery but openly by arms that the
Romans proceeded against their enemies. The same historian mentioned the fact that the Romans
generals rejected the scheme, suggested by the King’s physician, of poisoning Pyrrhus (280
B.C.) and even delivered up the traitor, Pyrrhus, in return for the Roman generosity, allowed his
prisoners to go to Rome on parole in order to celebrate the Saturnalia; after which, they,
faithfully returned.
5. UNQUENCHABLE THIRSTINESS OF PERFECTION. — PETITIONER ENTITLED TO
LEGAL GUARANTEES
Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable natural
urge for improvement, by the unquenchable thirstiness of perfection in all orders of life,
humanity has been struggling during the last two dozen centuries to develop an international law
which could answer more and more faithfully the demands of right and justice as expressed in
principles which, weakly enunciated at first in the rudimentary juristic sense of peoples of
antiquity, by the inherent power of their universal appeal to human conscience, at last, were
accepted, recognized, and consecrated by all the civilized nations of the world.
Under these principles, petitioner General Tomoyuki Yamashita is entitled to be accorded all
the guarantees, protections, and defenses that all prisoners should have according to the customs
and usages, convention and treaties, judicial decisions and executive pronouncements, and
generally accepted opinions of thinkers, legal philosophers and other expounders of just rules
and principles of international law. The seriousness or unfathomable gravity of a charges against
him, the unthinkable magnitude of the wholesale murders, rapes, and destructions for which he is
called to answer, the beastly massacres and horrors by which he was thrown from the pedestal of
military glory as the “Tiger of Malaya” into the bottom of perversity of a human monster, must
not be taken into consideration, must all be forgotten, in order that true justice may be
administered in this case.
ARISTOTLE ON THE SEPARATION OF GOVERNMENT POWERS
JOSE CARAOS v. IÑIGO S. DAZA
(G.R. No. L-442, May 23, 1946)
PERFECTO, J., dissenting:
From the foregoing, it is evident that respondents were and are unable to point out any law
upon which respondent judge’s authority to order the re-arrest and the recommitment of the
petitioner can be supported. In fact, no law exists. Much more, its existence is incompatible with
the present legislation and the principle of separation of powers, one the pillars of our system of
government and democracy established by our Constitution, and recognized by all civilized
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nations as one of the fundamental safeguards of civil liberties since Montesquieu developed and
perfected it upon the fecund germinal ideas firstly enunciated by the encyclopedic genius of
Aristotle in the following words of his “Politics”:
All constitutions have three elements, concerning which the good lawgiver has to regard what
is expedient for each constitution. When they are well-ordered, the constitution is well-ordered,
and as they differ from one another, constitution differs. There is one (1) element which
deliberates about public affairs; secondly (2) that which concerned magistracies — the questions
being what they should be, over what they should exercise authority, and what should be the
mode of electing to them; and thirdly (3) that which has judicial power. (Book IV, Ch. 14.).
In great states it is possible, and indeed necessary, that every office should have a special
function . . . . certainly every work is better done which receives the sole, and not the divided,
attention of the worker. (Book IV, Ch. 15.)
Under the principle of separation of powers, government functions are divulsed and
apportioned among the three departments — legislative, executive, and judicial — and within the
province of each one of them no encroachments are allowed without violating the tripartite
division established by the Constitution.
ARISTOTLE ON CITIZENSHIP
MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR. v. COMMISSION ON
ELECTIONS
(G.R. No. 161434, March 3, 2004)
VITUG, J.:
Now, to the basic issue; it should be helpful to first give a brief historical background on the
concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime
in 384 to 322 B.C., described the “citizen” to refer to a man who shared in the administration of
justice and in the holding of an office. Aristotle saw its significance if only to determine the
constituency of the “State,” which he described as being composed of such persons who would
be adequate in number to achieve a self-sufficient existence. The concept grew to include one
who would both govern and be governed, for which qualifications like autonomy, judgment and
loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one
hand, and with concomitant obligations, on the other. In its ideal setting, a citizen was active in
public life and fundamentally willing to submit his private interests to the general interest of
society.
The concept of citizenship had undergone changes over the centuries. In the 18th century, the
concept was limited, by and large, to civil citizenship, which established the rights necessary for
individual freedom, such as rights to property, personal liberty and justice. Its meaning expanded
during the 19th century to include political citizenship, which encompassed the right to
participate in the exercise of political power. The 20th century saw the next stage of the
development of social citizenship, which laid emphasis on the right of the citizen to economic
well-being and social security. The idea of citizenship has gained expression in the modern
welfare state as it so developed in Western Europe. An ongoing and final stage of development,
in keeping with the rapidly shrinking global village, might well be the internationalization of
citizenship.
86
BLACKSTONE ON THE PLEA OF INSANITY
THE UNITED STATES v. SIMEON GUENDIA
(G.R. No. L-12462, December 20, 1917)
STREET, J.:
Undoubtedly the rule is well established that no person afflicted with imbecility or insanity in
such a degree as to disable him from making his defense should ever be put upon his trial for an
alleged crime or made to suffer the judgment of the law.
In Blackstone’s Commentaries we find the following Passage:
Also if a man in his sound memory commits a capital offense, and before arraignment for it,
he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that
advice and caution that ought; and if after he has pleaded, the prisoner becomes mad, he shall not
be tried; for how can he make his defence? If, after he be tried; and found guilty, he loses his
senses before judgment, judgment shall be pronounced; and if, after judgment, he becomes of
non-sane memory, execution shall be stayed; for peradventure says the humanity of the English
law, had the prisoner been of sound memory, he might have alleged something in stay of
judgment or execution.
There were good reasons for this tenderness or “humanity” of the English law, as the reader
will appreciate when reminded of the fact that until modern times no prisoner arraigned before
the bar of an English court was ever permitted to have counsel to assist him in his defense; that
until within the memory of living man no accused person was ever permitted to give testimony in
his own behalf; and finally that it was only in our own day that a person convicted of a crime in
an English court has been allowed an appeal for a review of the facts.
When Blackstone here speaks of madness he refers to a general perversion and obliteration of
the mental powers much more pronounced than that which is considered sufficient to exempt
from criminal responsibility. This is apparent from the fact that the courts have always treated a
person as sane for the purposes of being tried if he has sufficient powers to comprehend the
nature of the proceedings in which he is involved and to conduct his defense.
BLACKSTONE ON ARREST WITHOUT WARRANT
THE UNITED STATES v. DIONISIO SANTOS
(G.R. No. 12779, September 10, 1917)
MALCOLM, J.:
The Common Law rule as to the arrest without warrant of suspicious night-walkers is of
particular interest. Blackstone says, “Watchmen, either those appointed by the statute of
Winchester (13 Edw. I, c. 4) to keep watch and ward in all towns from sun-setting to sun-rising,
or such as are mere assistants to be constable, may virtute offici (by virtue of their office) arrest
all offenders, and particularly night-walkers, and commit them to custody till the morning.” (II
Cooley’s Blackstone, p. 1445.) The cases hold that a peace officer might arrest and detain in
prison for examination persons walking in the street at night whom there is reasonable ground to
suspect of felony, although there is no proof of a felony having been committed: but the arrest
would be illegal if the person so arrested was innocent and there were no reasonable grounds of
suspicion to mislead the officer. (Miles v. Weston [1871], 60 Ill., 361, citing English decisions.)
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The reason of the rule is apparent. Good people do not ordinarily lurk about streets and
uninhabited premises at midnight. Citizens must be protected from annoyance and crime.
Prevention of crimes is just as commendatory as the capture of criminals. Surely the officers
must not be forced to await the commission of robbery or other felony. The rule is supported by
the necessities of life.
The foregoing are the applicable principles of the American and English Common Law as to
the powers of peace officers. The principles of the Spanish law are not essentially different. (See.
U.S. v. Sanchez [1914], 27 Phil. Rep., 442.) Both rest upon the same foundation of reason and
common sense.
BLACKSTONE AND BENTHAM ON POLICE POWER
THE PEOPLE OF THE PHILIPPINE ISLANDS v. JULIO POMAR
(G.R. No. L-22008, November 3, 1924)
JOHNSON, J.:
A definition of the police power of the state must depend upon the particular law and the
particular facts to which it is to be applied. The many definitions which have been given by the
highest courts may be examined, however, for the purpose of giving us a compass or guide to
assist us in arriving at a correct conclusion in the particular case before us. Sir William
Blackstone, one of the greatest expounders of the common law, defines the police power as “the
due regulation and domestic order of the kingdom, whereby the inhabitants of a state, like
members of a well-governed family, are bound to conform their general behavior to the rules of
propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive
in their respective stations.” (4 Blackstone’s Commentaries, 162.)
Mr. Jeremy Bentham, in his General View of Public Offenses, gives us the following
definition: “Police is in general a system of precaution, either for the prevention of crimes or of
calamities. Its business may be distributed into eight distinct branches: (1) Police for the
prevention of offenses; (2) police for the prevention of calamities; (3) police for the prevention of
endemic diseases; (4) police of charity; (5) police of interior communications; (6) police of
public amusements; (7) police for recent intelligence; (8) police for registration.”
BLACKSTONE ON LIBERTY OF THE PRESS
IN THE MATTER OF THE ALLEGATIONS CONTAINED IN THE COLUMNS OF MR.
AMADO P. MACASAET PUBLISHED IN MALAYA
(A.M. No. 07-09-13-SC, August 8, 2008)
REYES, R.T., J.:
Sir William Blackstone, 19th Century English jurist, in his still widely cited historical and
analytical treatise on English common law, aptly described the twin aspects of press freedom:
x x x Every freeman has an undoubted right to lay what sentiments he pleases before the
public: to forbid this is to destroy the freedom of the press: but if he publishes what is improper,
mischievous, or illegal, he must take the consequences of his own temerity. To subject the press
to the restrictive power of a licenser, as was formerly done, both before and since the Revolution,
is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary
and infallible judge of all controverted points in learning, religion and government. But to punish
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as the law does at present any dangerous or offensive writings, which, when published, shall on a
fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of
peace and good order, of government and religion, the only solid foundations of civil liberty.
Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal
punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of
private sentiment is still left; the disseminating, or making public, of bad sentiments destructive
to the ends of society, is the crime which society corrects.
BLACKSTONE ON DOUBLE JEOPARDY
PEOPLE OF THE PHILIPPINES v. HON. TIRSO D. C. VELASCO
(G.R. No. 127444, September 13, 2000)
BELLOSILLO, J.:
It was in England though, a century ago, that double jeopardy was formally institutionalized
“as a maxim of common law” based on the universal principles of reason, justice and conscience,
about which the Roman Cicero commented: “Nor is it one thing at Rome and another at Athens,
one now and another in the future, but among all nations, it is the same.” But even as early as the
15th century, the English courts already began to use the term “jeopardy” in connection with the
doctrine against multiple trials. Thereafter, the principle appeared in the writings of Hale (17th
c.), Lord Coke (17th c.) and Blackstone (18th c.). Lord Coke for instance described the
protection afforded by the rule as a function of three (3) related common law pleas: autrefois
acquit, autrefois convict and pardon. In Vaux’s Case, it was accepted as established that “the life
of a man shall not be twice put in jeopardy for one and the same offense, and that is the reason
and cause that autrefois acquitted or convicted of the same offense is a good plea x x x x:”
Blackstone likewise observed that the plea of autrefois acquit or a formal acquittal is grounded
on the universal maxim of the common law of England that “(n)o man is to be brought into
jeopardy of his life more than once for the same offense. And hence, it is allowed as a
consequence that when a man is once fairly found not guilty upon any indictment, or other
prosecution before any court having competent jurisdiction of the offense, he may plead such
acquittal in bar of any subsequent accusation for the same crime.”
BLACKSTONE ON STATE ALLEGIANCE
ANASTACIO LAUREL v. ERIBERTO MISA
(G.R. No. L-409, January 30, 1947)
PERFECTO, J., concurring:
“Allegiance,” as defined by Blackstone, “is the tie or ligament which binds the subject to the
King, in return for that protection which the King affords the subject. Allegiance, both expressed
and implied, is of two sorts, the one natural, the other local, the former being perpetual, the latter
temporary. Natural allegiance is such as is due from all men born within the King’s dominions
immediately upon their birth, for immediately upon their birth they are under the King’s
protection. Natural allegiance is perpetual, and for this reason, evidently founded on the nature of
government. Allegiance is a debt due from the subject upon an implied contract with the prince
that so long as the one affords protection the other will demean himself faithfully. Natural-born
subjects have a great variety of rights which they acquire by being born within the King’s
liegance, which can never be forfeited but by their own misbehaviour; but the rights of aliens are
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much more circumscribed, being acquired only by residence, and lost whenever they remove. If
an alien could acquire a permanent property in lands, he must owe an allegiance equally
permanent to the King, which would probably be inconsistent with that which he owes his
natural liege lord; besides, that thereby the nation might, in time, be subject to foreign influence
and feel many other inconveniences.” Indians within the state are not aliens, but citizens owing
allegiance to the government of a state, for they receive protection from the government and are
subject to its laws. They are born in allegiance to the government of the state. Jackson v.
Goodell, 20 Johns., 188, 911. (3 Words and Phrases, Permanent ed., 226-227.)
BLACKSTONE ON HUMAN AND DIVINE LAW
ANASTACIO LAUREL v. ERIBERTO MISA
(G.R. No. L-200, March 28, 1946)
PERFECTO, J., dissenting:
Judges in early times were priests, or more accurately stated, the priests performed the
functions of judges. There is still much about the judicial office that is priestly. This has ever
seemed quite natural to those who took seriously their first legal learning from Blackstone, who
stated at the outset that all human laws depend upon divine law. While for a time that teaching
seemed out of fashion, the more recent trend is to acknowledge again our subjection to a law of
nature, a law divine. Be that as it may, it will not disputed that a proper performance of judicial
duties requires a devotion quite similar to the consecration of the priest. Judges, like the clergy,
should be kept unspotted from the world. Any personal interest, selfish concern, or party
consciousness, corrupts not only the judge but the judicial function. Any want of honest
detachment in the judge undermines public faith in judicial administration. As has frequently
been stated, it is quite as important to the public that judges should be free from the appearance
of evil as that they should be free from actual evil. The prevalent disrespect for law is prompted
not so much by corruption in the courts, as by that system of choosing judges which makes every
judge suspect.
The taking of judicial office should be much like the taking of holy orders — one should not
do so who is unwilling to suffer a kind of civil death. The only way in which one can be worthy
of the office is by submerging self in the performance of the duties of the office. A judge should
be only the voice of the law. As Cicero said, “While the law is voiceless magistrate, the
magistrate is law made vocal.” It is arrogant presumption for a judge to pose as anything more,
and gross indiscretion for him to assert his own voice. The only way in which he can avoid
violation of the injunction, “Judge not, that ye be not judged,” is by pronouncing, not his
personal will, but the judgment of the law. How otherwise could a judge impose a death sentence
and live in peace? If the judgment is his own, the blood of the condemned is upon him. If his
judgment is at the behest of popular clamor he has given sanction to lynching. But if his
judgment is the pronouncement of the law, the judicial function is fulfilled and his conscience is
clear. The judicial robe should submerge personality and make its bearer, like a priest in
vestment, an impersonal part of a divine function. (The Judicial Function and the Need of
Professional Section of Judges by Robert N. Wilkin, Journal of the American Judicature Society,
Vol. 29, No. 4, Dec., 1945.)
GROTIUS ON ACTUAL DAMAGES
SIMONA MANZANARES v. RAFAEL MORETA
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(G.R. No. L-12306, October 22, 1918)
MALCOLM, J., concurring:
The principles of law which measure the pecuniary responsibility of the defendant, not
discussed in the main opinion, are more difficult. Since the time of Grotius and even before,
lawyers and publicists have speculated as to whether the loss of a human life should be
compensated in money, and if so, as to the amount which should be allowed.
xxx
Grotius in his Rights of War and Peace said:
xxx
The following may be for example: Any man slaying another, unjustly, is bound to discharge
the expenses, if any are contracted, for physicians, and to give to those whom the slain was in
duty accustomed to maintain — such as parents, wives, children-as much as that hope of
maintenance-regard being had to the age of the deceased — was worth: thus, Hercules is said to
have made reparation (paid a fine) to the Children of Iphitus, slain by him, in order that expiation
might more easily be made.
Michael, the Ephesian, says upon the 5th of the Nicomachii of Aristotle: “but also the person
slain receives, in some sort, for what the wife or children or relations of the person slain receive
is, in some sort given him.” We are speaking of an unjust manslayer: That is, one who had not
the right of doing that from whence death follows.
Wherefore, if any one may have had the right, but has sinned against charity, as when one
(being assaulted) has been unwilling to flee, he shall not be bound, but of life, in case of a free
man, no valuation is made, otherwise, in case of a slave who can be sold.
Both because of the civil origin of the applicable law in the Philippines, because we are not
fettered by the harsh common law rule on the subject, because it is the modern and more
equitable principle, and because reason and natural justice are eloquent advocates, we hold that
an action for damages can be maintained in this jurisdiction for the death of a person by wrongful
act. It can be admitted, since objection has not been made, that the primary right of action is in
the parent.
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CHAPTER IV
CIVIL LAW: THE ROMAN JURISTS
Omnes viae Romam ducunt
(All roads lead to Rome)
I. ROMAN LAW: ALL CODES LEAD TO ROME
Before the advent of the written tradition, rules of life were quipped by the ancients into wise
sayings so these might be easily recalled, grasped, and preached. Filipinos had their share of
riddles (bugtong), sayings (kasabihan), idioms (sawikain), poetic snippets, and proverbs. These
were the fount of pass-on wisdom and customs, although they were never put into stone or
codified into law.
But the ancient Romans turned their civil axioms into legal maxims, which “crystallize with its
laconism a thousand past experiences in humanity’s eternal quest for what is just and right,”
Justice Jose B.L. Reyes said in his foreword to German Lee’s Handbook of Legal Maxims.
John Zane’s The Story of the Law traces the legal profession to the Roman court, made up of
“jurists” and “advocates.” When laws began to be written in the Twelve Tables, there was a need
for juriconsults or jurists to announce the principles of justice in applying the law. Their
pronouncements would be binding to the elected officers, the praetors, and were adopted and
added up to by one successor to another. The collection came to be known as the Edict, which
supplemented custom and statute. The duty of jurists was to advise and counsel, but under
Augustus, their function became a public office providing responsa, sententiae, or regulae as a
case demands, similar to modern-day justices establishing jurisprudence.
Meanwhile, the patricians mastered the laws as a class of advisers who drew up forms and
directed legal procedure. They were the patrons of dependent plebeians called “clients.” It is the
duty of the head of a clan called an advocate, who must be an influential and persuasive person
like Cicero and Pliny, to represent clients in his public appearances for free. Advocates would
deliver speeches, write treatises, and draw wills, consultations, and pleadings in court.
The maxims of juriconsults, cited by the advocates in their speeches, became foundational
principles of law and civility. Their words continue to impress persuasive effect in the Bar and
the Bench today. The Romans tried to save their civilization by a uniform system of laws later
adopted by Christian states, in reaction to the licentiousness of some emperors. They might not
have been successful in preserving their empire, but they preserved civilization itself.
Latin maxims are very proverbial since the Romans believed that what is legal must be moral.
Ius in Latin means “law.” It also means “right.” A Latin legal principle imposes majesty and
command because it has the elements of what law should be: crisp and clear. These maxims
found their way into statutory and case law, and have become tools for statutory construction. In
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fact, it is a Latin maxim that in default of the law, the maxim rules (regula pro lege, si deficit
lex).
The Romans also made use of the natural law theory to justify the universal application of jus
gentium as the law of the nations, while applying the jus civile for its Roman citizens. The law of
nations must be the law common to all, which is natural law (jus naturale). It was the Roman
emperor Marcus Aurelius who incorporated Stoic natural law philosophy into Roman law.
As laws multiplied, the need for compilation arose. A systematic organization of laws ensued
through codes. The Corpus Iuris Civilis or the Justinian Code (534 A.D.) was a collection of
existing Roman laws made by a group of scholars led by the legal minister Tribonian. The
Justinian Code is composed of four books: The Codex Constitutionum or the code of ordinances
and decrees issued by emperors; then the Digest or Pandects that summarizes the common law to
guide judges; the Institutes or the introduction to the law for law students; and the Novellae
Constitutiones Post Codicem or the Novels, referring to the supplementary new laws passed by
Emperor Justinian.
The Justinian Code was a legal reference throughout the Roman Empire and eventually the
Western civilization, with many of its precepts adopted in future codifications such as the Code
Napoleon of Napoleon Bonaparte, who as emperor institutionalized the civil code system
throughout Continental Europe and its colonies. Britain, along with its colonies, remained a
common-law country since it was able to resist Napoleonic occupation. Nevertheless, Latin
principles are also foundational to English case law where judges set precedents citing Latin
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maxims.
Following the Code Napoleon, the Spanish Civil Code was enforced in the Philippines by the
Insular Spanish Government on December 7, 1889 (Mijares v. Nery, 3 Phil. 196, 199), with the
exception of the Law on Marriage and Civil Registry as these matters were administered by the
friars under Canon or Church Law.
The Spanish Civil Code was in effect even during the American occupation and Post-War
Liberation Period since the U.S., being a common-law country like Britain, does not have codes
to replace Spain’s. The new Civil Code of the Philippines in 1949 considerably followed the
Justinian structure: with Book I on Persons; Book II and III on Property, Ownership, and its
Modifications, and the Different Modes of Acquiring Ownership; and Book IV on Obligations
and Contracts. Lawyers can take comfort that many of the provisions in the Civil Code are
similarly provided in other jurisdictions, minimizing occasions of conflict of laws. In drafting the
1949 Civil Code of the Philippines, the Code Commission maintained that:
The Philippines, by its contact with the Western culture for the last centuries, is a rightful
beneficiary of the Roman law, which is a common heritage of civilization. For many generations
that legal system, as developed in Spain, has been the chief regulator of the judicial relations
among Filipinos. It is but natural and fitting, therefore, that when the young Republic of the
Philippines frames its new Civil Code, the main inspiration should be the Roman law as unfolded
and adapted in Spain, France, Argentina, Germany, and other civil law countries. (Report of the
Code Commission to the President, Jan. 26, 1948).
II. BREAKING THE CODE
While stands the Coliseum, Rome shall stand; When falls the Coliseum, Rome shall fall; And
when Rome falls — the world.
— Lord Byron, Childe Harold’s Pilgrimage
Roman Law itself used to be a subject in the Philippine legal curriculum. Law students then,
just like their ancient Roman counterparts, had to read portions of the Institutiones to understand
civil law, since the structure, definitions, distinctions, enumerations, and provisions of the Civil
Code can be traced to Roman Law. The Institutiones also provides brief explanations and
illustrations.
Roman law classifies law into public and private. Public law (jus publicum) regulates the
government. Meanwhile, private law (jus privatum) determines the rights and duties of
individuals. Roman Private Law is further divided into Book I on the Law of Persons (De Jure
Personarum), Book II on the Law of Things (De Rerum Divisione) and Books III and IV on the
Law of Actions (De Actionibus).The Law on Persons concerns personal and juridical capacity,
marriage, adoption, and guardianship. The Law on Things concerns property ownership,
possession, usufruct, servitude, inheritance, and wills; while the Law on Actions covers the law
on obligations and contracts arising from contracts, quasi-contracts, and delicts or crimes.
The Roman jurists formulated what came to be known as “civil law” concerning contracts,
trade and commerce, infringement of rights, property and occupancy, warranty and mortgages,
marriage and divorce. Set out below are the highlights of the major chapters of the Institutiones
(Inst.) that have been the mainstay of civil law codes of many countries.
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On the Nature of Law
The precepts of the law are: to live honestly, to injure no one, and to give every man his due,
which is justice. The study of law consists of two branches: public and private. The former
relates to the welfare of the State; the latter to the individual citizen (Inst., Book I: Title I. 3-4).
The laws of states are governed by statutes. These are partly peculiar (civil law), partly
common to man (law of nations). The latter refers to rules prescribed by natural reason for all
men to observe as the necessities of human life require. The common nature of man is the reason
for the mutuality of contracts; for instance, sale, hire, partnership, deposit, loan for consumption,
and others (Inst., Title II, 1).
The Law on Persons
Children and Marriage
The unborn child, from conception, is considered to have a presumptive status distinct from
the mother. If the mother is free at the time of conception, and then becomes a slave before the
birth of the child, then the unborn is held to be free born, on the ground that an unborn child
should not to be prejudiced by the mother’s misfortune. For it is enough if the mother of an
unborn infant is free at any moment between conception and delivery for the unborn child to be
held free even if the mother has become a slave (Inst., Title IV).
Children born in wedlock are under paternal control. Emancipation liberates children from
their parents. Wedlock or matrimony is the union of male and female, involving the habitual
intercourse of daily life (Inst., Title IX, 1-2). The age of puberty must be reached to get married.
If the children are still dependent, then the consent of parents who exercise parental power must
first be obtained.
Marriage between certain classes of persons is forbidden, such as between an ascendant and a
descendant, including father and daughter, grandfather and granddaughter, mother and son,
grandmother and grandson, and ad infinitum. The union of such persons is criminal and
incestuous. The prohibition applies even in the case of adoption. Collateral relations also are
subject to similar prohibitions, but not as stringent. Brother and sister are prohibited from
intermarriage, even if they have only one blood parent in common, but adopted persons can
marry others in the collateral line. Cousins are also not prohibited to intermarry (Inst., Title X, 13).
Guardianship
Guardianship is the authority and control over a free person. The law allows a parent to
appoint guardians in his will for children who have not attained the age of puberty (Inst., Title
XIII, 1-3). If a lunatic or a minor is appointed as a testamentary guardian, he cannot act until, if a
lunatic, he recovers his faculties, or, if a minor, he attains the age of twenty-five. A guardian may
be appointed for a certain time, or conditionally. A guardian cannot, however, be appointed for a
particular matter or business, because his duties relate to the person (Inst., Title XIV, 2-4). To
prevent the property under curators or guardians from being wasted, the guardian must give
security against maladministration.
No minor of either sex can sell anything without his or her guardian’s authority. Consequently,
if a minor attempts to lend money without authority, no property passes and no obligation is
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imposed. Hence, the money can be recovered (Inst., Title VII, 2).
The Law on Property
The Kinds of Ownership
Things can either be of (1) private ownership, acquired by various titles; (2) public ownership,
which is for common use, (3) corporate ownership, belonging to a society or a corporation; or (4)
res nullius, belonging to no one.
Things common to all include the air, water, sea, seashore, rivers, harbors, and river banks.
Consequently, everyone is entitled to bring his vessel to the bank, and fasten cables to the trees
growing there, and use it as a resting place for the cargo, as freely as one may navigate the river
itself. But the ownership of the bank is with the owner of the adjoining land, including ownership
of the trees that grow on it.
Meanwhile, things belonging to a society or a corporation are buildings in cities, theaters,
racecourses, and such other belongings in corporate capacity. On one hand, things that are sacred
or prohibited belong to no one (Inst., Book II, Title I, 1-7).
The Ownership of Animals
Wild animals, birds, fish, and all creatures in the land, the sea, and the sky become the
property of their captors as soon as they are caught; for natural reason entitles the first occupant
to that which previously had no owner. An animal, once caught, is deemed as the captor’s
property as long as it is completely under his control. But as soon as it has escaped from his
control and recovered its natural liberty, the animal ceases to be owned and will belong to the
first person who subsequently catches it. It is deemed to have recovered its natural liberty when
the owner has lost sight of it, or though still in sight, will be difficult to chase.
Bees are naturally wild; hence, if a swarm settles on someone else’s tree, it is not anymore
considered as one’s property. Until one has hived bees or until birds have built their nests in
one’s property, they cannot be considered as one’s property (Inst., 12-14).
Regarding animals that have the habit of going away and returning to one’s property, they are
deemed appropriated as long as they have the intent to return. Fowls and geese are, however, not
naturally wild, and if frightened to fly into one’s property, will be considered theft. Precious
stones, too, and all other things found on the seashore, become the property of the finder. The
offspring of animals owned become one’s property also (Inst., 15-19).
Right of Accession
If the soil in a river has been added into one’s land by alluvion, it is considered appropriated.
Alluvion is a gradual and imperceptible accumulation of soil. If, however, the violence of the
stream sweeps away a parcel of one’s land and carries it down to the land of another, it still
remains as one’s property unless it becomes firmly attached to the neighboring land, and the
trees which it carried with it strike root in the latter.
When an island rises in the sea, it belongs to the first occupant; for, until occupied, it is held to
belong to no one. If, however, an island rises in a river, and it lies in the middle of the stream, it
belongs in common to the landowners on either bank, in proportion to the extent of their riparian
interest; but if it lies nearer to one bank than to the other, it belongs to the landowners on that
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bank only.
If a river divides into two channels, and by uniting again these channels transform a man’s
land into an island, the ownership of that land is in no way altered. But if a river entirely leaves
its old channel, and begins to run into a new one, then the old channel belongs to the landowners
on either side of it in proportion to their riparian interest, while the new channel acquires the
same legal character as the river itself, becoming public.
But if after a while the river returns to its old channel, the new channel again becomes the
property of those who possess the land along its banks. If one’s land has been completely
flooded, and the flood does not permanently alter the nature of the land and the water withdraws,
then the soil still belongs to its previous owner (Inst., 20-24).
A new object belongs to the owner of the materials or to its maker. But if a man makes a new
object out of materials that belong partly to him and partly to another — for instance, mead of his
own wine and another’s honey, or cloth of wool which only belongs in part to him — the new
object belongs to its creator, for he has contributed not only part of the material, but the labor by
which it was made.
If, however, a man weaves into his own cloth another man’s purple dye, the latter, though
valuable, becomes part of the cloth by accession; but its former owner can maintain an action of
theft, or an action for reparative damages (Inst., 25-26).
If materials belonging to two persons are mixed by consent — for instance, if they mix their
wines, or melt together their gold or silver — the result of the mixture belongs to them in
common. The law is the same if the materials are of different kinds and their mixture
consequently results into a new object. The new object belongs in common to the owners of the
materials. If, by accident, and not by the intention of the owners, materials have become mixed,
the rule is the same (Inst., 27).
If a man builds on his land using another’s materials, then the building is deemed to be the
landowner’s property, for buildings become part of the ground on which they stand. If the owner
of the land seeks to recover a house from its builder by real action, yet refuses to pay for the
materials and the workmen’s wages, he can be defeated by a plea of fraud, provided that the
builder’s possession is in good faith. For if the builder knew that the land belonged to someone
else, then he is to blame for rashly building on land owned by another man (Inst., 30-31).
A writing becomes part of the paper or parchment, much as buildings and sown crops become
part of the soil. When a man paints a picture on another’s board, the board belongs, by accession,
to the painter, since a board is in itself worthless. If the owner of the board has possession of the
picture, and is sued for it by the painter, who nevertheless refuses to pay the cost of the board,
the remedy of the owner of the board is a plea of fraud (Inst., 33-34).
If a man finds a treasure in his own land, he is adjudged to be the owner of it. If he finds it in
another man’s land by accident, and without deliberately searching for it, half of the treasure
must be given to him as the finder. If a man finds a treasure in public land, then half of it belongs
to him and the other half to the treasury of the State.
Land Title
When a thing is sold and delivered, it does not become the purchaser’s property until he has
paid the price to the vendor, or satisfied him in some other way, as by securing someone else to
accept liability for him, or by pledge (Inst., 41).
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If a man, in good faith, buys land from another who is not its owner, though he believed it was
legally aqcuired, natural reason directs that at least the fruits gathered shall remain his, in
consideration of his care and cultivation.
Consequently, if the owner subsequently appears and claims the land by real action, he cannot
sue for fruits that the possessor has already consumed. This, however, is not allowed when one
takes possession of the land while aware that it belongs to another person. The usurper is obliged
not only to restore the land, but to make compensation for the fruits consumed.
Usufructuary
Usufruct is the right of using and taking the fruits of another’s property. It is extinguished
along with the extinction of that property. Usufruct also ceases by the death of the usufructuary,
by loss of status, by improper use, and by non-exercise during the period fixed by law (Inst.,
Title IV).
A person who has a usufruct on land does not become the owner of the fruits that grow
thereon until he has himself gathered them. Fruits which, though ripe, are not yet gathered
belong to the owner of the land.
The term “fruits,” when used in animals, include their young. The usufructuary of a flock
should replace any of the animals that die from the offspring of the rest, and, if his usufruct be of
land, to replace dead vines or trees. The usufructuary should use the property like a careful head
of a family (Inst., Title III, 35-37).
Servitudes
The following are rights relative to “country estates”: iter, the right of passage for passerby;
actus, the right of driving beasts or vehicles; via, the right of going, walking, and driving
anything; and aquaeductus, the right of conducting water over another man’s land.
Servitudes relative to “town estates” are rights that are attached to buildings such as the
obligation to support the weight of a neighbor’s house; to allow beams into one’s wall; to receive
the rain from a neighbor’s roof from a gutter into his yard; the converse right of exemption from
any of these obligations; and the right of preventing a neighbor from raising his building lest
one’s view of lights be obstructed (Inst., Title III, 1).
Occupation and Possession
If a man takes possession of a property abandoned by its previous owner, he at once becomes
the new owner. A thing is said to be abandoned if its owner has thrown it away with deliberate
intent (Inst., Title III, 47).
If a man, in good faith, bought a thing, or received it by way of gift or by any other lawful
ground, from a person who was not its owner but who believed to be so, the purchaser or
receiver can acquire the property by possession. It the property is movable, by three years of
possession; if immovable, by ten (when located in one province) to twenty years (when covering
different provinces) of occupancy. The periods will be sufficient to enable the real owners to
recover their property and to save people from being quickly defrauded (Inst., Title IV, 1-2).
Possession that has run in favor of a deceased person in good faith, continues to run in favor of
his heir or successor, even when the latter comes to know that the land belongs to another person.
However, things lost by theft gained by violence cannot be acquired by possession, even if a
98
person has possessed them in good faith for the specified periods (Inst., 3,12).
Donation
Another mode of acquiring property is through gifts. Gifts are of two kinds; those made in
contemplation of death, and those not so made. In the first, if the donor survives the donee, or
should desire to revoke the gift, the gift should be restored to the donor. A donor can revoke a
gift on proof of ingratitude on the part of the recipient. If the gift was in consideration of
marriage, the gift can be revoked if the marriage did not push through (Inst., Title VII, 1-3).
Wills and Succession
The law of testament must fulfill the following conditions: the witnesses, and the necessity of
their all being present through the execution of the will; the signing of the document by the
testator and the witnesses; the exact number of witnesses; the sealing of the will by them; the
name of the heir written by either the testator or the witnesses; and that everything should be
done according to the tenor of this enactment (Inst., Title X, 3-4).
A man may execute any number of duplicates of his will, though in each of them the usual
formalities must be observed. When, however, one wishes to make a will binding by civil law,
but not in writing, he may summon seven witnesses, and in their presence orally declare his
wishes (Inst., 13-14).
Certain persons are incapable of making a lawful will. A person under the age of puberty is
incapable of making a will even with the permission of his parents. So, too, is the lunatic,
because he has lost his reason. It is immaterial that one reaches the age of puberty, and the other
recovers his faculties, before his death.
If, however, a lunatic makes a will during a lucid interval, the will is deemed valid. A will is
also valid when made before the lunatic lost his reason. For subsequent insanity never voids a
duly executed testament or any other disposition validly made. So too a spendthrift, who is
interdicted from the management of his affairs, is incapable of making a valid will, though one
made by him before being so interdicted is valid (Inst., Title XII, 1-2).
The deaf and the dumb cannot always make a will, though here, we are speaking of total
deafness and dumbness, not one who merely has difficulty in speaking. Relief has been afforded
that enables them, in certain cases and in certain modes, to make a will and other lawful
dispositions. If a man, after making his will, becomes dumb or deaf through ill health or any
other cause, the will remains valid nevertheless (Inst., 3).
A testator who has a son in his power must take care either to institute him as heir, or to
specially disinherit him, for passing him over in silence voids the will. Children born after the
making of the will must also be either instituted heirs or disinherited. If any family heir is born
after the making of the will, the will, though originally valid, is invalidated by the subsequent
birth of the child, and so becomes completely void (Inst., Title XIII,1).
Children who succeed to a family heir belong to another class. For instance, if a testator has a
son, and by him a grandson or a granddaughter, the son alone, being nearer in degree, has the
right of a family heir. But if the son dies in the testator’s lifetime, or is in some other way
released from his power, then the grandson or the granddaughter succeeds to his place, and thus,
acquire the rights of family heirs (Inst., 2).
Between the sexes, to each of which nature assigns an equal share in perpetuating the race of
99
man, there is no distinction. Succession is applied uniformly to sons, daughters, and other
descendants by the male line, whether born before or after the making of the will (Inst., 5).
Part of the estate not disposed will go to the heirs in proportion to the share each has been
assigned by the will. Conversely, if each heir is given a fraction in excess, each must suffer a
proportionate abatement (Inst., Title XIV, 7).
If the institution of an heir, a legacy, a fiduciary bequest, or a testamentary manumission is
made to depend on an impossible condition, the condition is deemed unwritten, and the
disposition absolute. If an institution is made to depend on two or more conditions, conjunctively
expressed — as, for instance, “if this and that shall be done” — all the conditions must be
satisfied. If they are expressed in the alternative or disjunctively — as “if this or that shall be
done” — it is enough if one of them alone is satisfied (Inst., 10-11).
A testator may institute as heir a person whom he has never seen, for instance, relatives born
abroad and are unknown to him. Want of knowledge does not invalidate the institution (Inst.,
12). A testator may institute his heirs and make many substitutions as he likes, in default of
others (Inst., Title XV).
A duly executed testament remains valid until revoked or rescinded. A will is revoked by the
subsequent birth of a rightful family heir. A subsequent will duly executed is a revocation of a
prior will. Rescission also happens when the person instituted declines to be an heir, or dies in
the lifetime of the testator, or is excluded by failure of fulfilling the condition under which he
was instituted as heir (Inst., Title XVII, 1-3).
A legacy may be given not only to things belonging to the testator, but also to things
belonging to a third person, the heir being bound by the will to buy and deliver them to the
legatee, or to give him their value if the owner is unwilling to sell them. If the thing which a
testator bequeaths is under pledge to a creditor, the heir is obliged to redeem it (Inst., Title XX,
4-5).
A thing that does not yet exist, but will exist, may be validly bequeathed. If the person can be
ascertained in other ways, a mistake in the name is immaterial. Closely akin to this rule is that an
erroneous description of the thing bequeathed does not invalidate the bequest (Inst., 10).
Obligations and Contracts
An obligation is a legal bond, with which we are bound to perform an act. It has four kinds:
contractual, quasi-contractual, delictal, and quasi-delictal (Inst., Title XIII).
The terms of a stipulation may be absolute, or performance may be postponed to some future
time, or may be made subject to a condition.
An instance of a stipulation ‘in diem’ happens when a future time is fixed for payment. In such
a stipulation, an immediate debt is created, but there cannot be a suit until the arrival of the day
fixed for payment. Even on that very day an action cannot be brought, because the debtor should
have the whole day allowed for payment (Inst., Title XV).
A stipulation is conditional when performance is made to depend on some uncertain event in
the future, so that it becomes actionable only on something done or omitted. The immediate
effect of a conditional stipulation is not a debt, but merely the expectation that at some time there
will be a debt; and this expectation devolves on the stipulator’s heir, supposing the stipulator dies
before the fulfillment of the condition (Inst., 4).
100
The performance or non-performance of an act may be the object of a stipulation, with a
pecuniary penalty to be paid in default, lest there be doubt as to the value of the act or omission,
which will make it necessary for the plaintiff to prove to what damages he is entitled (Inst., 7).
But if a man stipulates for the delivery of a thing that does not or cannot exist, or who is dead
but whom he thought alive, or is an impossible creature, the contract will be void (Inst., Title
XIX, 1). Another circumstance by which a stipulation may be voided is want of correspondence
between question and an answer, as when a man stipulates for payment of ten aurei, but the other
promised five, or vice versa; or where the question is unconditional, but the answer conditional,
or vice versa (Inst., 5).
Again, no valid stipulation can be made between two persons when one is under the power of
another. A lunatic cannot enter into any contract at all, because he does not understand what he is
doing. On the other hand, a minor can enter into any contract, provided he has his guardian’s
authority (Inst., 6-9).
An obligation is always extinguished by performance of what is owed, or by performance of
something else with the creditor’s assent. It is immaterial from whom the performance proceeds
— be it the debtor himself, or someone else on his behalf. For by the performance of a third
person the debtor is released, whether he knows it or not, and even when it is against his will.
Performance by the debtor releases, besides himself, his sureties; and conversely, performance
by a surety releases, besides himself, the principal debtor (Inst., Title XXIX).
Special Contracts
Sales
The contract of purchase and sale is complete when the price is agreed upon, and even before
the price or any earnest is paid. Earnest money is evidence of the completion of the contract.
No sale effected by an agreement in writing shall be binding, unless the agreement is written
by the contracting parties themselves, or written by someone else or by a notary, and duly drawn
and executed by the parties. As long as any of these requirements is unsatisfied, there is room to
retract, and either purchaser or vendor may withdraw from the agreement with impunity,
provided, that no earnest money has been given (Inst., Title XXIII, 1).
It is necessary that the price should be settled, for without a price there can be no purchase and
sale. If the third person is named to fix the price, it must be paid as settled by him, and the thing
must be delivered, in order to give effect to the sale. But if the third person named will not or
cannot fix the price, the sale will be void, because no price has been settled.
This rule may reasonably be extended also to contracts of hire. The price, too, should be in
money as a means of exchange. The vendor will be bound to transfer to the purchaser all his
rights of action for the recovery of the object or to pay for damages for not having delivered it to
the purchaser.
Loan, Mutuum, Deposit, and Pledge
Real contracts, or contracts concluded by delivery, are exemplified by a loan for consumption
— a loan of things as are estimated by weight, number, or measure, such as wine, oil, corn,
money in coins, copper, silver, or gold.
Things which we transfer on condition that the receiver should bring back, at a future time, not
101
the same things, but other things of the same kind and quality is called mutuum, because what
was meum or mine becomes tuum or thine. If the receiver of a loan for consumption loses what
he has received by some accident, such as fire, the fall of a building, shipwreck, or the attack of
thieves or enemies, he still remains bound to give the thing of the same kind and quality (Inst.,
Title XIV, 1-2).
A thing is not lent for use if any recompense is received or agreed upon for the service; for
where this is the case, the use of the thing is held to be a rent, for a loan for use should always be
free.
A person with whom a thing is deposited for custody is responsible for the restoration of the
identical thing deposited, though only when it is lost through his fault. Similarly, the creditor
who takes a thing in pledge is under a real obligation, and is bound to restore the thing itself by
the action of pledge (Inst., 3-4).
Partnership and Agency
The continuance of a partnership depends on the continuing consent of the members. It is
dissolved by notice of withdrawal from any one of them. It is also dissolved by the death of a
partner, for when a man enters into a contract of partnership, he selects as his partner a definite
person. Accordingly, a partnership based on the agreement of several persons is dissolved by the
death of one of them, even though several others survive, unless as the contract otherwise agreed.
So, too, a partnership formed for the attainment of some particular object is terminated when that
object is attained. It is also clear that a partnership is dissolved by the forfeiture of the property of
one of the partners (Inst., Title XXV, 4-7).
A commission is given solely for the benefit of the principal when, for instance, the latter
instructs the management of his business, like to buy him a piece of land, or to enter into a
stipulation as surety for him. Instructions to commit an unlawful or immoral act do not create a
legal obligation. An agent should not exceed the terms of his commission (Inst., Title XXVI, 1,78).
The authority given to an agent can be annulled by revocation before he commences to act.
Similarly, the death of either the principal or the agent before the latter commences to act
extinguishes the agent’s authority. If an agent executes his commission, not knowing that the
principal is dead, the agency is valid. For otherwise, the law would be penalizing an unavoidable
ignorance (Inst., 9-10).
Quasi-contracts
Obligations that do not originate in a contract and do not arise from a delict are quasicontractual, such as when a man has managed the business of another during the latter’s absence.
The reason is general convenience lest during the business owner’s absence, those affairs would
be entirely neglected. No one would attend to the business of another if one were to have no
action for the recovery of any outlay he might have incurred in so doing.
The uncommissioned agent must show that he has satisfied the highest standard of carefulness.
For to display carefulness as he will to his own affairs is not enough, when a more diligent
person could have managed the business (Inst., Title XXVII,1).
Again, where persons own property jointly without being partners, by having, for instance, a
joint bequest or gift made to them, and one of them is liable to be sued by the other in a partition
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suit because he alone has taken its fruits, or because the plaintiff has laid out money on it in
necessary expenses. Here, the defendant cannot properly be said to be bound by contract, for
there has been no contract made between the parties; but as his obligation is not based on delict,
it may be said to be quasi-contractual (Inst., 3).
Delicts and Quasi-Delicts
Obligations resulting from a delict itself include theft, robbery, wrongful damage, or injury
(Inst., Book IV, Title I).
The obligation incurred by a judge who delivers an unjust decision cannot properly be called
delictal or contractual; consequently, as he cannot be held to have done a wrong, even though it
may be due to ignorance, his liability would seem to be quasi-delictal, and a pecuniary penalty
will be imposed on him.
Another case of quasi-delictal obligation is when something is thrown or poured from one’s
house resulting in damages. Of a similar character is the obligation of one who keeps something
placed or hung over a public way, which could fall and injure any one. Similarly, ship owners, as
well as inn and stable keepers, would be liable for willful damage or theft committed in their
ships, inns, or stables, provided the act be done by one of their servants there employed, and not
by themselves (Inst., Title V, 1-3).
Actions and Interdicts
An action is the right of suing before a judge for what is due. It is of two kinds: real and
personal. It is personal if the defendant is either under a contractual or delictal obligation to the
plaintiff. It is real if the plaintiff asserts a ground of action relating to a thing (res).
Interdicts are divided into abstention, restitution, and production. The first forbids the doing of
some act — for instance, the violent ejection of a bona fide possessor. The second refers to
restitution of property. The third refers to orders to produce persons or property; for instance, the
production of a person whose freedom is in question, or of a freeman whose patron wishes to
demand certain services, or of children on the petition of their parents (Inst., Title XV, 1).
III. LATIN MAXIMS
Omnes legum servi sumus ut liberi esse possimus.
(We are slaves of the law in order that we may be able to be free.)
— Marcus Tullius Cicero, Pro Cluentio
Latin maxims are tools in Statutory Construction. Blackstone’s Commentaries on the Laws of
England expressly endorsed, discussed, and used these Roman rules in interpreting the law.
Many of these precepts are themselves legal statements and principles, the hallmark of civil-ized
law. These have been preserved, codified, modified, and developed even in Philippine statutes,
rules of court, and organic charters as set out below:
Latin Legal Maxims/Precept
1987 Philippine Constitution
103
Accusare nemo se debet, nisi
caram Deo.
Art. III, Sec. 17. No person
shall be compelled to be a
witness against himself.
(No one is compelled to accuse
himself, except before God.)
Audi alteram partem.
Art. III, Sec. 14. (2) In all
criminal
prosecutions,
the
accused...shall enjoy the right to
be heard by himself and
counsel...to have a speedy,
impartial, and public trial.
(Hear the other side.)
Domus
sua
cuique
tutissimun refugium.
est
Art III, Sec. 2. The right of
the people to be secure in their
persons, houses, papers, and
effects against unreasonable
searches
and
seizures
of
whatever nature and for any
purpose shall be inviolable...
(To everyone, his house is his
surest refuge.)
Non bis in idem.
(No one shall be punished for
the same offense.)
Art. III, Sec. 21. No person
shall be twice put in jeopardy of
punishment for the same offense.
Latin Legal Maxims/Precept
New Civil Code
Accessorium sequitur naturam
sui principalis.
Art. 466. Whenever two
movable things belonging to
different owners are, without bad
104
faith, united in such a way that
they form a single object, the
owner of the principal thing
acquires
the
accessory,
indemnifying the former owner
thereof for its value.
(The accessory follows the
nature of its principal.)
Aedificium solo credit.
Art. 445. Whatever is built,
planted or sown on the land of
another and the improvements or
repairs made thereon, belong to
the owner of the land xxx.
(The building yields to the
land.)
Boni judicis est lites dirimere.
Art. 2029. The court shall
endeavor to persuade the litigants
in a civil case to agree upon
some fair compromise.
(It is the duty of good justice
to prevent litigation.)
Caveat emptor.
Art. 1563. In the case of
contract of sale of a specified
article under its patent or other
trade name, there is no warranty
as to its fitness for any particular
purpose, unless there is a
stipulation to the contrary.
(Buyer beware.)
Ex pacto illicito non oritur
action.
Art. 1352. Contracts without
cause, or with unlawful cause,
produce no effect whatever. The
cause is unlawful if it is contrary
to law, morals, good customs,
(No action arises out of illicit
bargain.)
105
public order or public policy.
Facta
partes.
legem
facunt
inter
Art. 1159. Obligations arising
from contracts have the force of
law between the contracting
parties and should be complied
with in good faith.
(Stipulations have the force of
law between parties.)
Finita voluntate, finitum est
mandatum.
Art. 1920. The principal may
revoke the agency at will, and
compel the agent to return the
document evidencing the agency.
Such revocation may be express
or implied.
(Upon the termination of the
will, the agency is terminated.)
Genus nunquam peruit.
Art. 1263. In an obligation to
deliver a generic thing, the loss
or destruction of anything of the
same kind does not extinguish
the obligation.
(Generic things do not perish.)
Homo est et qui est futurus.
Art. 40. Birth determines
personality; but the conceived
child shall be considered born for
all purposes that are favorable to
it, provided it be born later x x x.
(He is already a man who will
become a man.)
Ignorantia
excusat.
legis
neminem
Art. 3. Ignorance of the law
excuses no one from compliance
therewith.
106
(Ignorance of the law does not
excuse.)
In pare delicto potior est
conditio defendatis.
Art. 1192. In case both parties
have committed a breach of the
obligation, the liability of the
first infractor shall be equitably
tempered by the courts. If it
cannot be determined which of
the parties first violated the
contract, the same shall be
deemed extinguished, and each
shall bear his own damages.
(Where both parties are at
fault, the condition of the
defendant is better.)
Leges posteriores
contrarias abrogant.
priores
Art. 7. Laws are repealed only
by subsequent ones x x x.
(Later statutes repeal prior
ones which are repugnant
thereto.)
Legis interpretation legis vim
obtinet.
Art. 8. Judicial decisions
applying or interpreting the laws
or the Constitution shall form a
part of the legal system of the
Philippines.
(Judicial interpretation of a
statute acquires the force of law.)
Les non cogit ad impossibilia.
Art. 1348. Impossible things
or services cannot be the object
of contracts.
(The law does not require the
impossible.)
107
Lex prospicit, non respicit.
Art. 4. Laws shall have no
retroactive effect, unless the
contrary is provided.
(The law looks forward, not
backward.)
Nel consensui tam contrarium
est quam vis atqui meus.
Art. 1330. A contract where
consent is given through mistake,
violence, intimidation, undue
influence, or fraud is voidable.
(There can be no consent
under force or duress.)
Non consentit qui errat.
(He who
consent.)
errs
does
not
Nemo dat quod non habet.
Art. 1505. Subject to the
provisions of this Title, where
goods are sold by a person who
is not the owner thereof, and who
does not sell them under
authority or with the consent of
the owner, the buyer acquires no
better title to the goods than the
seller had, unless the owner of
the goods is by his conduct
precluded from denying the
seller’s authority to sell.
(No one can transfer a greater
right to another than one has.)
Optimus interpres rerum usus.
Art. 1376. The usage or
custom of the place shall be
borne
in
mind
in
the
interpretation of the ambiguities
of a contract, and shall fill the
omission of stipulations which
(The best interpreter of the law
is usage.)
108
are ordinarily established.
Pacta sunt servanda.
Art. 1315. Contracts are
perfected by mere consent, and
from that moment the parties are
bound not only to the fulfillment
of what has been expressly
stipulated but also to all the
consequences which, according
to their nature, may be in keeping
with good faith, usage and law.
(Stipulations of parties must be
complied with in good faith.)
Partus sequitur ventrem.
Art. 442. Natural fruits are the
spontaneous products of the soil,
and the young and other products
of animals.
(Offspring follow the mother.)
Proximus sum egomet mihi.
Art. 294. The claim for
support, when proper and two or
more persons are obliged to give
it, shall be made in the following
order: (1) From the spouse; (2)
From the descendants of the
nearest degree; (3) From the
ascendants, also of the nearest
degree; (4) From the brothers and
sisters.
(Charity begins at home.)
Prius in tempore, potior in
jure.
Art. 1544. If the same thing
should have been sold to
different vendees, the ownership
(First in time, first in right.)
109
shall be transferred to the person
who may have first taken
possession thereof in good faith,
if it should be movable property
x x x.
Privatum
incommodum
publico bono pensatur.
Art. 435. No person shall be
deprived of his property except
by competent authority and for
public use and always upon
payment of just compensation.
(The private interests of the
individual must give way to the
accommodation of the public.)
Qui approvat non reprobate.
Art.
1392.
Ratification
extinguishes the action to annul a
voidable contract.
(He who approves or ratifies
cannot repudiate.)
Qui prius jus suum insina verit
praeferetur.
Art. 1544. x x x Should it be
immovable
property,
the
ownership shall belong to the
person acquiring it who in good
faith first recorded it in the
Registry of Property. Should
there be no inscription, the
ownership shall pertain to the
person who in good faith was
first in the possession; and, in the
absence thereof, to the person
who presents the oldest title,
provided there is good faith.
(He is preferred whose right
has just been recorded.)
110
Quod ab initio non valet in
tractu temporis non convalescit.
Art. 1409. The following
contracts are inexistent and void
from the beginning x x x These
contracts cannot be ratified.
Neither can the right to set up the
defense of illegality be waived.
(That which was originally
void, does not by lapse of time
become valid.)
Sic utero tuo ut alienum non
laedas.
Art. 431. The owner of a thing
cannot make use thereof in such
manner as to injure the rights of a
third person
(Use your property as not to
injure the rights of others.)
Ubi jus, ibi remedium.
Art. 32. Any public officer or
employee, or any private
individual, who directly or
indirectly obstructs, defeats,
violates or in any manner
impedes or impairs any of the
following rights and liberties of
another person shall be liable to
the latter for damages.
(Where there is a right, there is
a remedy for violation thereof.)
Vigilantibus
et
non
dormientibus jura subveniunt.
Art. 1106. By prescription,
one acquires ownership and other
real rights through the lapse of
time in the manner and under the
conditions laid down by law. In
the same way, rights and
conditions
are
lost
by
prescription.
(The law aids the vigilant, not
those who slumber on their
rights.)
111
Latin Legal Maxims/Precept
Revised Penal Code
Actus non facit reum nisi mens
sit rea.
Art. 12. Circumstances which
exempt from criminal liability. —
The following are exempt from
criminal liability: 4. Any person
who, while performing a lawful
act with due care, causes an
injury by mere accident without
fault or intention of causing it.
(The act does not make a
person guilty unless the mind is
also guilty.)
Arma in armatos jura sinunt.
Art.
11.
Justifying
circumstances. — The following
do not incur any criminal
liability: 1. Anyone who acts in
defense of his person or rights,
provided that the following
circumstances concur; First.
Unlawful aggression; Second.
Reasonable necessity of the
means employed to prevent or
repel it; Third. Lack of sufficient
provocation on the part of the
person defending himself.
(The law permits taking arms
against armed persons.)
Favorabilia sunt amplianda,
odiosa restringenda.
Art. 22. Retroactive effect of
penal laws. — Penal Laws shall
have a retroactive effect insofar
as they favor the persons guilty
of a felony, who is not a habitual
criminal x x x.
(Penal laws
which are
favorable to the accused are
given retroactive effect.)
112
Furiosus solo furore punitur.
Article 12. Circumstances
which exempt from criminal
liability. — The following are
exempt from criminal liability: 1.
An imbecile or an insane person,
unless the latter has acted during
a lucid interval. x x x 5. Any
person who act under the
compulsion of irresistible force.
(A mad man is punished only
by his madness.)
Actus invitus, non est meus
actus.
(An involuntary act is not
one’s act.)
Nullum crimen, nulla poena
sine lege.
Art. 3. Acts and omissions
punishable by law are felonies x
x x.
(There is no crime where there
is no law punishing it.)
Sociis fit culpae qui nocentum
sublevat.
Art. 16. Who are criminally
liable. — The following are
criminally liable for grave and
less grave felonies: 1. Principals.
2. Accomplices. 3. Accessories.
(He who helps the guilty
shares the crime.)
Latin Legal Maxims/Precept
1997 Rules of Civil Procedure
Cujus juris erit accessorium.
(He who has jurisdiction of the
principal thing has jurisdiction of
the accessory also.)
Rule 6, Sec. 7. Compulsory
counterclaim. — A compulsory
counterclaim is one which, being
cognizable by the regular courts
of justice, arises outof or is
connected with the transaction or
occurrence
constituting
the
subject matter of the opposing
113
party’s claim and does not
require for its adjudication the
presence of third parties of whom
the
court
cannot
acquire
jurisdiction. Such a counterclaim
must be within the jurisdiction of
the court both as to the amount
and the nature thereof x x x.
Res judicata inter partes jus facit.
Rule 39, Sec. 47. Effect of
judgments or final order x x x (b)
In other cases, the judgment or
final order is, with respect to the
matter directly adjudged or as to
any other matter that could have
been missed in relation thereto,
conclusive between the parties
and their successors in interest,
by title subsequent to the
commencement of the action or
special proceeding, litigating for
the same thing and under the
same title and in the same
capacity x x x.
(A
question
adjudicated
between parties after hearing
them makes the law of that
question.)
Stare decisis et non quieta
movere.
(Follow past precedents and do
not disturb what has been
settled.)
De
similibus
judicium.
idem
est
(Concerning similars,
judgment is the same.)
the
Latin Legal Maxims/Precept
Revised Rules on Evidence
Ei incumbit probation qui
dicit, non qui negat.
Rule 131, Sec. 1. Burden of
proof. — Burden of proof is the
duty of a party to present
evidence on the facts in issue
necessary to establish his claim
or defense by the amount of
(He who asserts, not he who
denies, must prove.)
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evidence required by law.
Non allegata non probate.
Rule 132, Sec. 34. Offer of
evidence. — The court shall
consider no evidence which has
not been formally offered. The
purpose for which the evidence is
offered must be specified.
(That which is not alleged
cannot be proved.)
Qui tace consentire videtur.
Rule 130, Sec. 32. Admission
by silence. — An act or
declaration made in the presence
and within the hearing or
observation of a party who does
or says nothing when the act or
declaration is such as naturally to
call for action or comment if not
true, and when proper and
possible for him to do so, may be
given in evidence against him.
(Silence means consent.)
Res ipsa loquitur.
Rule 130, Sec. 1. Object as
evidence. — Objects as evidence
are those addressed to the senses
of the court. When an object is
relevant to the fact in issue, it
may be exhibited to, examined or
viewed by the court.
(The thing speaks for itself.)
Semper
praesumitur
matrimonio.
pro
Rule 131, Sec. 3. Disputable
presumptions — That a man and
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(Always presume marriage.)
woman deporting themselves as
husband and wife have entered
into a lawful contract of
marriage; x x x
Ut res magis valeat quam
pereat.
Rule 130, Sec. 11. Instrument
construed so as to give effect to
all provisions. In the construction
of an instrument, where there are
several provisions or particulars,
such a construction is, if
possible, to be adopted as will
give effect to all.
(The law should be interpreted
to uphold than to destroy it.)
Latin Legal Maxims/Precept
Legal Ethics
Judex non potest injuriam sibi
datam punier.
Rule
137,
Sec.
1.
Disqualification of judges. — No
judge or judicial officer shall sit
in any case in which he, or his
wife or child, is pecuniarily
interested x x x.
(A judge cannot punish an
injury to himself.)
From the civilizing legacies of the Roman Empire, we shall next discourse the contributions to
criminal and family law of its successor, the Roman Church.
CHAPTER IV CASE READINGS
THE JUSTINIAN CODE ON MUTUAL BAD FAITH
MARCIAL KASILAG v. RAFAELA RODRIGUEZ, ET AL.
(G.R. No. 46623, December 7, 1939)
LAUREL, J., concurring:
Justinian, who, by his Corpus Juris Civiles, still speaks through practically all the civil codes
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of Continental Europe, considers both as having acted in good faith. “Realmente,” bluntly
observes Manresa, “si los dos que se encuentran en lucha sobre la propiedad han provocado el
conflicto por su voluntad; a ciencia y paciencia del dueno del suelo, ante cuya vista las obras se
han ejecutado, y con conciencia, por parte del que edifica o planta, de que el terreno no es suyo,
no hay razon alguna que abone derecho preferente en favor de ninguno de los dos; deben, por
tanto, tratarse como si los dos hubiesen obrado de buena fe; la mala fe del uno extingue y
neutraliza, en justa reciprocidad, la del otro.” (Manresa, Codigo Civil segunda edicion Tomo III
pag. 203.) Article 364 of our Civil Code then comes into play. “Where there has been bad faith,
not only on the part of the person who built, sewed, or planted on another’s land, but also on the
part of the owner of the latter, the rights of both shall be the same as if they had acted in good
faith. Bad faith on the part of the owner is deemed to exist whenever the act has been done in his
presence, with his knowledge and tolerance, and without opposition on his part.” (Article 364,
Civil Code; see also arts. 1303, 1306, ibid.) The codal section is evidently based upon the
vulnerable maxim of equity that one who comes into equity must come with clean hands. A court
which seeks to enforce on the part of the defendant uprightness, fairness, and conscientiousness
also insists that, if relief is to be granted, it must be to a plaintiff whose conduct is not
inconsistent with the standards he seeks to have applied to his adversary.
THE ROMAN LAW ON THEFT
WAYNE JAIN v. THE INTERMEDIATE APPELLATE COURT and PEOPLE OF THE
PHILIPPINES
(G.R. No. L-63129, September 28, 1984)
ABAD SANTOS, J.:
An American justice of th[e] Court whose background was the Common Law wrote a learned
historical background of Theft as it is understood in the Civil Law. A portion is quoted as
follows:
In the early Roman law we find theft defined by Gaius in terms broad enough to include any
kind of physical handling of property belonging to another against the will of the owner; and in
this connection we note that the term is there made to include misappropriation and misuse by
the bailee, a species of offense which in our Penal Code is transferred to subsection 5 of article
535, dealing with estafa. Furtum autem fit non solum cum uis intercipiendi causa rem alienam
amovet sed generaliter cum quia ahenam rem invito domino contrectat Itaque sive creditor
pignoresive is apud quem res deposita est ea re utatur sive is qui em utendam accepit in ahum
usum earn transferat quam cujus gratia ei data est furtum committit (Gai in 195, 196).
Substantially the same definition is given by Paulus: “A thief is he who with evil intention
handles (touches, moves) the property of another.” Fur est ui dolo malo rem ahenam contrectat
In the Institutes of Justinian a more elaborate definition is given as follows: “Theft is the
fraudulent handling of a thing with the object of acquiring gain either from the thing itself or
from its use, or from possession of it.” Fortum est contrectatio rei fraucri faciendi causa qvel
ipsius rei vel etiam qusus eju possessionisve (Inst. 4, 1, 1).
The corresponding provision of the Partidas follows in the main the definition given in the
Institutes but contains the additional qualification that the taking must be without the consent of
the owner. Furto es malfetria que fazen los omes que toman alguna cosa mueble agena
encubiertamente sin plazer de su senor con intention de ganar el sefiorio o la possession o el uso
dena (Ley 1, Tit XIV, Part.VII).
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xxx
From a comparison of the definitions given above it is obvious that the most fundamental
notion in the crime of theft is the taking of the thing to be appropriated into the physical power of
the thief, which Idea is qualified by other conditions, such as that the taking must be effected
animo lucrandi and without the consent of the owner; and it will be here noted that the definition
does not require that the taking should be effected against the will of the owner but merely that it
should be without his consent-a distinction of no slight importance. (People v. Avila, 44 Phil.
720, 724-726 [1923])
Evident from the foregoing is the condition sine qua non that for theft to be committed there
must be physical handling for personal property. Such a condition is not present in the case at bar
for at no time did the petitioner lay his hands on the sugar canes which belonged to others. The
petitioner is right; he did not commit theft but he committed
THE ROMAN LAW ON DOUBLE JEOPOARDY
PEOPLE OF THE PHILIPPINES v. HON. TIRSO D. C. VELASCO, ET AL.
(G.R. No. 127444, September 13, 2000)
BELLOSILLO, J.:
Jeopardy, itself “a fine poetic word,” derives from the Latin “jocus” meaning joke, jest or
game, and also from the French term “jeu perdre” which denotes a game that one might lose.
Similarly, the Middle English word “iuparti” or “jupartie” means an uncertain game. The
genesis of the concept itself however rests deep in the ancient Grecian view of tragedy and
suffering and in the old Roman legal concepts of punishment. Greek law bound prosecutor and
judge to the original verdict as can be seen in the remark of Demosthenes in 355 B.C. that “the
laws forbid the same man to be tried twice on the same issue.” The Justinian Digest providing
that “(a) governor should not permit the same person to be again accused of crime of which he
has been acquitted,” suggests certain philosophical underpinnings believed to have been
influenced by works of the great Greek tragedians of the 5th century B.C. reflecting man’s
“tragic vision” or the tragic view of life. For the ancient Greeks believed that man was
continuously pitted against a superior force that dictated his own destiny. But this prevailing
view was not to be taken in the sense of man passing from one misfortune to another without
relief, as this idea was repugnant to Greek sensibilities. Rather, it expressed a universal concept
of catharsis or vindication that meant misfortune resolving itself into a final triumph, and
persecution, into freedom and liberation. To suffer twice for the same misfortune was anathema
to ancient thought.
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CHAPTER V
CRIMINAL LAW AND FAMILY LAW: THE
CHRISTIAN PHILOSOPHERS
Thou dost not murder.
Thou dost not commit adultery.
Thou dost not steal.
Thou dost not answer against thy neighbor a false testimony.
— Exodus 20:12
More than 300 years of Spanish Catholic enculturation and 40 years of American Protestant
evangelization have made the country a Christian stronghold in Asia, wielding influence in the
life and thought, and even politics, of Filipinos.
The earliest universities in the country offering courses on law and philosophy taught the
Scholasticism or Perennial Philosophy of the Dominican Thomas Aquinas, which has been
endorsed by the Catholic Church since the late Medieval Ages after the first universities in
Europe were established. Many of the premiere universities today, including Harvard,
Cambridge, and Oxford, started as theology and divinity schools. Harvard’s motto is Veritas
Christo et Ecclesiae (“Truth for Christ and the Church”). It was the same religious story for the
University of Santo Tomas, which was named after the Catholic patron of education and which
established the first law school in the country in 1734.
Aquinas was not a stranger to politics, as he belonged to a family of public officers in
Southern Italy. The Catholic Church used Aquinas’ fusion of faith and reason, which defined the
Age of Scholasticism. Aquinas lived in a time when church laws or canon laws, interpreted by
ecclesiastical tribunals and appealable to the papal Curia, were the only “international law” as
Europe was divided into kingdoms and petty states with their own feudal laws. Regarded as a
universal ruler, the Pope was given the title of ancient Rome’s Pontifex Maximus, the head of the
pagan college of hierophants or priest-juriconsults.
The Spanish commentators of the law, such as on the Penal Code — Pacheco, Cuello Calon,
Viada and Groizard; and on the Civil Code — Manresa, Castan, Sanchez Roman, Ruggiero, and
Colin and Capilant — trailed the Scholastic dissertations that harmonized Roman law with
customary laws and Christian legalism.
Some contemporary Catholic humanists have taken Phenomenology that analyzes human
consciousness, and Personalism that focuses on the dignity of the human person, as supplement
philosophies to Scholastic Thomism. These include Dietrich von Hildebrand and Karol Wojtyla
(later St. Pope John Paul II).
John Paul II’s views shaped international and national policies on social justice, the right to
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life, and family rights. The Vatican delegates in the UN’s Cairo Conference on Women, with the
help of Catholic and Muslim countries, and Evangelical lobbyists, were successful in inserting
provisions proscribing abortion. Many of the prevailing issues in the country, such as
reproductive health, were also in view of his encyclicals on responsible parenthood. While
Aquinas justified death penalty, John Paul II advocated its abolition in the Evangelium Vitae.
Tolentino maintained that the Church’s Canon Law was among the influences of the Spanish
Civil Law enforced in the Philippines (Commentaries and Jurisprudence on the Civil Code of the
Philippines I, 8). When the Canon Law was revised in 1983 by John Paul II to include
psychological incapacity as a ground for marital nullity, the same was adopted in the Family
Code in 1987. The Family Code defines marriage as a “special contract of permanent union
between a man and a woman entered into in accordance with law for the establishment of
conjugal and family life” (Article 1).
The 1987 Philippine Constitution itself, with articles on the family, human dignity, social
justice, and the right to life, considerably reflects Christian principles as sponsored by Catholic
delegates Bishop Teodoro Bacani, Bernardo Villegas, Sr. Christine Tan, and Fr. Joaquin Bernas,
SJ. It was the product of a revolution initiated by Manila Archbishop Jaime Cardinal Sin, dubbed
as “Asia’s Cardinal Richelieu.”
In this chapter, we will discuss Aquinas’ view on justice and criminal law. We will then
proceed to Wojtyla’s domestic (family) philosophy exposed in his work, Love and
Responsibility. The chapter will end with a discussion on legal models for Church-State relations,
an endemic issue in the Philippines as one of the world’s most religious countries.
I. AQUINAS ON CRIME AND PUNISHMENT
Let every person be subject to the governing authorities. For there is no authority except from
God, and those that exist have been instituted by God…For he is the servant of God, an avenger
who carries out God’s wrath on the wrongdoer. Therefore one must be in subjection, not only to
avoid God’s wrath but also for the sake of conscience.
— Romans 13: 1-5
Aquinas justified the necessity of both civil and penal law. As a social animal, man needs civil
law to determine how he will deal with others, such as in buying and selling (S.T., I-II, Q. 95,
A.4). Since no man is by nature bad or evil, mere personal training by admonition may suffice to
keep a man virtuous. Still, punishments may be needed for those “depraved and prone to vice,
and not easily amenable to words…to be restrained from evil by force and fear” (S.T., I-II. Q. 95,
A.1).
People are of various predispositions and environment. Out of fear, a person can be habituated
to do what is virtuous since penal law forces him to do or resist doing an act until it becomes his
second nature. Human law may be a hindrance to some, but the just man will conform to it
spontaneously, as if no law is needed for him because how he lives is already in agreement with
the law.
Aquinas distinguished general from particular justice. General justice refers to legal justice
that serves the community. It is also referred to as “distributive justice” as it distributes the
common good. On one hand, particular justice is in relation to individuals who are individually
different (S.T., II-II, Q. 58, A.5).
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Rendering justice does not necessarily mean same treatment, but equitable treatment on what
the other deserves by natural or contractual/positive right; that is, rendering to each that “which
is due to him according to equality of proportion” (S.T., II-I, Q.58, A.11, corpus). This
qualification on justice justifies the doctrine of reasonable classification under the Equal
Protection clause.
Consistency must be observed in justice. For “justice is a habit whereby a man renders to each
one his due by a constant and perpetual will” (S.T., II-II, Q.58, ad 5m).
Restitution and Retribution
Restitution is an act of commutative justice, where equality is reestablished by giving back
what is taken (S.T., Q.62. A.2). Man is bound to give restitution according to the loss he brought
upon another, with damages for what the other could have obtained (S.T., II-II, Q.62, A.5).
Restitution can be made by repayment of the equivalent or by compensation.
Articles 104 to 107 of the Revised Penal Code (RPC) similarly provide for restitution with the
value to be determined by the court; reparation that takes into consideration the value of the
property to the injured party; and indemnification.
When a person violates the law, he or she violates the civil order and the common good.
Retribution through exemplary punishment must restore that order (S.T., I-II, Q.87, A.1). A
punishment must consist of something perceived to be “evil” by the wrongdoer by depriving him
of a good, so that potential wrongdoers will refrain from breaking the law if only to avoid the
penalty (Summa Contra Gentiles, II, 141). Although punishment will be perceived as bad by the
law breaker, it will be for the common good of the community, and also good to the criminal
since the law will break his excessive indulgence of his will.
Conditions of Criminal Liability
Voluntariness and involuntariness of actions must be taken into account in judging liability.
Aquinas said that “we apply the word voluntary not only to that which proceeds from the will
directly, as from its action, but also to that which proceeds from it indirectly as from its inaction”
(S.T., I-II, Q.6, A. 3, Reply 1). Voluntariness requires an act of knowledge and an act of will, “to
wish and to act” (Reply 3). Aquinas faulted as species of imprudence “thoughtlessness” or defect
in judgment, inconstancy of action, and lack of due care or negligence (S.T., Q.53, A.2).
The RPC follows the same principles. Article 3 punishes both acts and omissions that violate
the law, including faults arising from imprudence, negligence, lack of foresight, and lack of skill.
Article 4 provides that a criminal act must be performed, not only intended.
Violence and fear can cause involuntariness of actions, according to Aquinas. By violence,
one is externally compelled contrary to one’s will. In fear, one does an act not because one wills
it, but because one wants to avoid the evil feared (A.6). Article 12 of the RPC similarly makes
irresistible force and uncontrollable fear as exempting circumstances for criminal liability.
Ignorance also causes involuntariness, but Aquinas distinguished between antecedent,
concomitant, and consequent ignorance (S.T., I-II, Q.7). “Antecedent ignorance” is “ignorance of
the circumstance of one’s act,” such as a man who, despite precaution, shoots and hits a passerby. Ignorance is “concomitant” when despite ignorance of what was committed, a criminal act
would nevertheless be done had the circumstances been right. Aquinas raised as example a man
who wished to kill his foe but instead killed a stag. Meanwhile, ignorance is “consequent” if it
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was deliberate with respect to what one can and ought to know.
Antecedent ignorance in Aquinas is in Philippine law akin to mistake of fact (ignorantia facti),
which may excuse a party from the legal consequences of his conduct. It can also refer to
unintended accidents despite due care, without fault or intention. Concomitant ignorance can
refer to aberratio ictus and error in personae in Article 4 of the RPC, where there is an
unintended commission of a felony when a different crime or victim was in fact intended.
Ignorance of the law applies to Aquinas’ consequent ignorance, as Article 3 of the Civil Code
provides that ignorance of the law excuses no one from compliance therewith (ignorantia juris
neminem excusat).
Aquinas also maintained that a circumstance affects liability, “either by way of measure, as
time and place; or by qualifying the act as the mode of acting. It touches the effect, when we
consider what is done. It touches the cause of the act, as to the final cause, by the circumstance
why; as to the material cause, or object, in the circumstance about what; as to the principal
efficient cause, in the circumstance who, and as to the instrumental efficient cause, in the
circumstance by what aids” (S.T., I-II, Q.7, A.3).
The RPC’s Article 14 on Aggravating Circumstances similarly considers these factors, such as
the commission of a crime during nighttime and in an uninhabited place; the mode of acting with
treachery, impunity or with craft, fraud, and disguise; whether what is done is in contempt of
authorities; the consideration such as for a price or reward; who did the act, such a public officer
taking advantage of his position; and the aid of persons by a band or by means of motorized
vehicles, explosion, or breaking of walls, doors, or windows.
Aquinas discussed major crimes in the Summa against the respect due to persons, and also
murder, physical injuries, theft and robbery, unjust accusations, derision, cheating, usury, and
unnatural sexual acts or perversions, with reference to the Ten Commandments.
II. WOJTYLA’S TALKS ABOUT SEX
What is honor compared to a woman’s love? What is duty against the feel of a newborn son in
your arms . . .Wind and words. Wind and words. We are only human, and the gods have
fashioned us for love. That is our great glory, and our great tragedy.
— Maester Aemon, from George R.R. Martin’s A Game of Thrones
Love and Responsibility (LR) caused a sensation when it was first published in the original
Polish for discussing taboo topics on sensuality, unsatisfied wives faking orgasms, how to make
natural family planning work, and the importance of mutual sexual climax. To top it all, it was
written by a cleric. LR was written when Wojtyla, later Pope John Paul II, was a philosophy
lecturer on phenomenology and existentialism.
It is said that Wojtyla’s information on sex came from his kayaking and skiing retreats with
some 200 married and single friends. Like the celibate Hindu priest Vatsyayana, author of the
Kama Sutra, Wojtyla believed that it is his duty to reflect on the dignity of human sexuality at
the onset of the sexual revolution in the 60s. From his work, we can put into perspective
Philippine family law policies on absolute divorce, same-sex unions, monogamy, and artificial
birth control that solidified under John Paul II’s long and charismatic papacy.
While most sex education studies interpret man’s sexuality much like animal sexuality,
Wojtyla reminded us that what is “natural” to beasts is “subnatural” to humans (LR, 108). Man
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has the power of self-determination and free will to choose his sexual acts, unlike animals. As a
thinking being, a person is rational, his sexual activity, being “choices,” are issues of morality —
of personal responsibility and freedom. Man is not simply a sexual being; he or she is a sexual
person.
The Sexual Partner as a Person
Wojtyla reformulated the Kantian imperative in that anyone who treats another as means to an
end violates that person’s natural right to pursue his ends. According to Wojtyla, “you may not
treat a person as only the means to an end, but must allow for the fact that he too should have
distinct personal ends” (L.R., 28). A person must thus be loved as he or she is, accepted and
regarded in his totality, and not only sexually desired.
Sexual objectification reduces a person to a consumer item, making him or her dispensable
once another person possesses the same attribute or when the person loses his or her desirable
traits. Love is the only legitimate sexual response to a person, which ensures that the other will
not be treated only as a sexual object.
The value of a person demands an unconditional commitment of the will in the fullest possible
way. In sex, this occurs in the demand for committed love in marriage (L.R., 117). In sex, there is
the meeting of bodies and souls; of minds, emotions, and sensibilities. Because of this, persons
are most susceptible, given up, and lost to the other, in moments of orgasm. The consequence of
sex has considerable existential effects spelling life and death, love and hatred. Sex without its
life-making and lovemaking values runs the risk of reducing sexual persons to mere pleasure
commodities.
Pleasure and Love
Pleasure is natural and good, but it is not the highest good. Love is the fullest realization of the
possibilities of man. Because of love, one expects and discovers more from oneself because of
the affirmation of the other. Wojtyla spoke of “altero-centrism,” saying that the sexual instinct
moves the “I” of the instinct of self-preservation to the “I” of another (L.R., 65). By losing
oneself to the other, one gains oneself with the other. Explaining self-sacrifice and selflimitation, Wojtyla said that man longs for love more than freedom — freedom is the means and
love is the end (L.R., 136).
Again, the sexual urge is a natural drive. Sensuality is not a sin since it can be biological. “In
any normal man, the lust of the body has its own dynamic, of which sensual reactions are a
manifestation…a sensual reaction generally runs its full course even if it meets opposition” (L.R.,
162). In fact, sexual desire exists because one needs the other sex. Urge is an expression of the
need for a complement.
Here is where Wojtyla established what is normal from deviant sexuality. “The natural
direction of the sexual urge is towards a human being of the other sex and not merely towards
‘the other sex’ as such” (L.R., 49). It is “person of the other sex.” Pornography, fetishism, and
self-indulgence do not deal with persons but with mere attributes and fantasies. In
homosexuality, both partners have the same attributes, the giver and the receiver bearing the
same gender. It is man and woman who have intrinsic biological, emotional, and psychological
differences that make them fully complement each other. In this relationship, one meets his or
her true Sexual Other that can bear fruit to a new life.
In human phenomenology, “love is a phenomenon peculiar to the world of human beings”
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(L.R., 49). In the animal world, only the sexual instinct is at work. Love is neither the sensuality
nor the romantic feeling of it, but the decision to demand from oneself for the sake of one’s love
even if one sometimes does not anymore “feel” in love. While love starts and flourishes with
sensuality and sentimentality, it must be able to survive losing these physical and emotional
courses by an act of the will. If there is a will, there is a way for love to survive.
The Meaning of Total Self-Giving
A fully developed sexual relationship is only possible in a durable union where total selfgiving is encouraged. This is not the case in cohabitation and in “trial” marriages, which are
conditional and indicate that the couple is not ready for a long-term commitment. The
commitment of monogamy in marriage is necessary “to signify the maturity of the union
between a man and a woman, to testify that theirs is a love on which a lasting union and
community can be based, a family can rightly be found (L.R., 220). Further, sex is more
enjoyable between couples when they have the “the right to live in total intimacy” (L.R., 278).
Meanwhile, total self-giving can be frustrated by contraception. If a man truly loves his wife,
he needs to accept and regard the natural order, the natural cycle of the woman, as part of her
being. The couple will see each other’s fertility as a gift, not a disease to be medicated. The
husband will adjust to the woman’s bodily rhythms than place an artificial barrier in their very
act of lovemaking. Man can master his nature only by caring for, and not by mutilating or
interfering with, his healthy and normal reproductive designs.
“Biological methods, besides causing temporary barrenness, may bring about serious and
irreversible changes in the organism,” argued Wojtyla. He explained that “chemical means are in
their very nature cellular poisons, otherwise, they would not have the power to kill genital cells,
and so they must be physically harmful. Mechanical means cause local injuries in the woman’s
reproductive tract, and what is more, interfere with the intensity of the act” (L.R., 282).
Finally, love is not just something in the man or in the woman, but something that must be
common to them. Love is bilateral. It is shared and interpersonal — “a force which joins and
unites” (L.R., 85). Trust can only happen between a couple if they know that they regard each
other as lifetime partners.
How does one measure love? Love is gauged by responsibility. The full stage of love is
reached when the “I” becomes inseparable from the “I” of the other. It is a love that lasts in
sickness and in health, in richness and in poverty, for better or for worse; a love that in all
conditions cannot abandon the other because the other is already part of oneself. This is the
trajectory and goal of marriage, for two people to become one; and their union and original
calling no man must put asunder.
III. DOVETAILING OF CHURCH AND STATE
Think not that I came to destroy the law, or the prophets: I came not to destroy but to fulfill.
— Jesus of Nazareth, Matthew 5:17
With the influence of Christian philosophy in Philippine politics and law, one encounters the
principle of separation of church and state as a major issue. Filipino philosophy specialist
Leonardo Mercado cited four political models of church and state relations where we can draw
the proper symbiosis between these two entities. They are: sacred heteronomy, first profane
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autonomy, second profane autonomy, and theandric ontonomy.
In sacred heteronomy, spiritual concerns are perceived as superior to the material, and
therefore, religion rules all affairs of life. This happened in the theocracy of the Old Testament,
the frailocracy of the Medieval Ages, and in the Islamism of Arabic countries. This model is not
viable in the Philippines given its different religions. Even the majority Catholic Church affirms
the State’s right to exist independently from spiritual affairs.
In reverse, the first profane autonomy model gives the government power over the sacred. This
occurs in Communist countries like China, where the government appoints bishops in the official
“Patriotic Catholic Church” and where churches must be registered. Since religious concerns
exceed national boundaries and temporal interests, the State will be inadequate in controlling the
affairs of a church. Overpowering religions often lead to state implosion, as happened in the
former Soviet Union.
Meanwhile, the second profane autonomy model is the Western (American) ideal. There is a
demarcation between Church and State, geared towards independent co-existence. One result of
this model is that religion becomes a private affair. Apparently, Americans themselves find this
separation scheme schizophrenic. The Philippine Constitution, following the American
Constitution, advocates this model through the principle of separation of Church and State.
Devout Muslims find strange this separation principle because Islam has no organized clergy
or hierarchy for its politics to disassociate from. Islamists are not against the religions of the
Book but on Western social contract theory where people alone can decide the values upon
which they stand, independent of notions of God, moral absolutes, and truth.
Finally, the theandric ontonomy (from Greek word theos or god, and andros, man) weaves
together the political and the spiritual fabric of society.
Eastern philosophy in general prefers this model, where law and religion are combined in legal
concepts like the Hindu dharma (i.e., duty/truth/ceremony/ethics), the ancient Chinese li
(law/ritual/right), the Jewish Torah, and the Islamic shariah. Eastern law does not dichotomize
religion and state but seeks holistic and personal harmony of matter and spirit. It is no accident
that the major religions originated from the East, and Eastern philosophy dovetails its sacred
books.
Separation of Church and State
Filipino culture, like its Asian neighbors, by practice belongs to the theandric ontonomy
model. Deep religiosity is present throughout Philippine history. Historian Felipe Jocano stressed
the pervasive influence of religion even among pre-Hispanic Filipinos, where houses, boats,
farming equipment, cooking utensils, and other implements were not used without accompanying
rites. The anitos were believed to function as real deities and the pintados tattoo their bodies as
an offering. Spirits were thought to dwell in nature (saying excuses, “tabi-tabi po,” in crossing
unfamiliar trenches) and the babaylan had the role of a village priest and healer.
Even during the anti-clerical air of the Philippine Revolution, the Katipuneros did not think of
separating Church and State but in establishing a Filipinized church. The separation clause was a
most controversial issue for the framers of the Malolos Constitution, where after a long debate,
the proposal of separation won only by a margin of one vote.
The influence of religious thought continued during the American occupation. The Blue
Sunday Law that made every Sunday of the week a rest day was passed. Even today, whenever
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the nation is in deep crisis, Filipinos invoke the assistance of the religious sector as the most
organized non-government support group. Of recent memory are the EDSA revolutions that
toppled presidents, initiated by Church pastors.
Although the Philippine Constitution does not officially endorse any religion, its preamble,
just like the U.S. Constitution, nevertheless acknowledges the existence of a Supreme Being.
In his commentaries on the Constitution, Fr. Joaquin Bernas, SJ, a member of the 1986
Constitutional Commission, noted that the law’s separation clause only means two things. First,
that the government will not establish any religion; and second, that every citizen shall enjoy
freedom of conscience. This is clear in the Bill of Rights stating that “no law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof.” (Art III, Sec. 5).
This shows that the limitation is on government power from imposing a religion or imposing on
religion. The popular opinion that the clause is a ground for Church and State “indifference” is
not reflected in the Constitution.
The United States, where the separation clause has been adopted since our 1935 Constitution,
has the same nuances on this “wall of separation.” University of Chicago law professor Philip
Hamburger, columnist of the New Yorker, contended that the separation of Church and State was
drafted in the 18th century First Amendment to limit the government from following European
countries that established official religions.
The U.S. Supreme Court first used the words “separation of Church and State” in a case in
1879. Separation calls for “neutrality,” in Chief Justice Warren Burger’s words, “benevolent
neutrality,” not hostility. The Amendment, said Hamburger, was only later misinterpreted to limit
religion. Secularists go as far as to use the clause to censor the language of “morality” in the U.S.
government and to suggest the abolition of religious holidays like Christmas and Easter.
Hamburger argued that the myriad of connections between the interests of Church and State do
not amount to an establishment, let alone a full union of Church and State. Union and separation
are overgeneralizations between which lies much middle ground.
International Law authority Jorge Coquia rectified the separation clause, and proposed instead
a more realistic article on “the distinction and cooperation of Church and State.” Coquia argued
that the principle of separation is loaded, inviting hostility between Church and State, instead of
engaging these entities to work together for the general good.
In the next chapter, we shift from matters of crime, passion, and the spirit, to laws on more
worldly pursuits.
CHAPTER V CASE READINGS
ON THE RIGHT TO LIFE
LEO ECHEGARAY v. SECRETARY OF JUSTICE, ET AL.
(G.R. No. 132601, January 19, 1999)
PANGANIBAN, J., separate opinion:
So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee
that “(n)o person shall be deprived of life, liberty or property without due process of law.” This
primary right of the people to enjoy life — life at its fullest, life in dignity and honor — is not
only reiterated by the 1987 Charter but is in fact fortified by its other pro-life and pro-human
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rights provisions. Hence, the Constitution values the dignity of every human person and
guarantees full respect for human rights, expressly prohibits any form of torture which is
arguably a lesser penalty than death, emphasizes the individual right to life by giving protection
to the life of the mother and the unborn from the moment of conception and establishes the
people’s rights to health, a balanced ecology and education.
This Constitutional explosion of concern for man more than property for people more than the
state, and for life more than mere existence augurs well for the strict application of the
constitutional limits against the revival of death penalty as the final and irreversible exaction of
society against its perceived enemies.
Indeed, volumes have been written about individual rights to free speech, assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life,
the other rights cease in their enjoyment, utility and expression.
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“Thou shall not kill” is fundamental commandment to all Christians, as well as to the rest of
the “sovereign Filipino people” who believe in Almighty God. While the Catholic Church, to
which the vast majority of our people belong, acknowledges the power of public authorities to
prescribe the death penalty, it advisedly limits such prerogative only to “cases of extreme
gravity.” To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life),
“punishment must be carefully evaluated and decided upon, and ought not to go to the extreme of
executing the offender except in cases of absolute necessity: in other words, when it would not be
possible otherwise to defend society . . . (which is) very rare, if not practically non-existent.”
Although not absolutely banning it, both the Constitution and the Church indubitably abhor
the death penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human
life over and above even the state which man created precisely to protect, cherish and defend
him. The Constitution reluctantly allows capital punishment only for “compelling reasons
involving heinous crimes” just as the Church grudgingly permits it only reasons of “absolute
necessity” involving crimes of “extreme gravity,” which are very rare and practically nonexistent.
In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of “compelling reasons” to
prescribe death against well-defined “heinous” crimes?
I respectfully submit it has not.
ON PSYCHOLOGICAL INCAPACITY
LEOUEL SANTOS v. THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO
BEDIA-SANTOS
(G.R. No. 112019, January 4, 1995)
VITUG, J.:
Accordingly, although neither decisive nor even perhaps all that persuasive for having no
juridical or secular effect, the jurisprudence under Canon Law prevailing at the time of the
code’s enactment, nevertheless, cannot be dismissed as impertinent for its value as an aid, at
least, to the interpretation or construction of the codal provision.
One author, Ladislas Orsy, S.J., in his treaties, giving an account on how the third paragraph
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of Canon 1095 has been framed, states:
The history of the drafting of this canon does not leave any doubt that the legislator intended,
indeed, to broaden the rule. A strict and narrow norm was proposed first:
Those who cannot assume the essential obligations of marriage because of a grave psychosexual anomaly (ob gravem anomaliam psychosexualem) are unable to contract marriage (cf.
SCH/1975, Canon 297, a new canon, Novus);
then a broader one followed:
. . . because of a grave psychological anomaly (ob gravem anomaliam psychicam) . . . (cf.
SCH/1980, Canon 1049);
then the same wording was retained in the text submitted to the pope (cf. SCH/1982, Canon
1095, 3);
finally, a new version was promulgated:
because of causes of a psychological nature (ob causas naturae psychiae).
So the progress was from psycho-sexual to psychological anomaly, then the term anomaly was
altogether eliminated. It would be, however, incorrect to draw the conclusion that the cause of
the incapacity need not be some kind of psychological disorder; after all, normal and healthy
person should be able to assume the ordinary obligations of marriage.
Fr. Orsy concedes that the term “psychological incapacity” defies any precise definition since
psychological causes can be of an infinite variety.
In a book, entitled “Canons and Commentaries on Marriage,” written by Ignatius Gramunt,
Javier Hervada and LeRoy Wauck, the following explanation appears:
This incapacity consists of the following: (a) a true inability to commit oneself to the essentials
of marriage. Some psychosexual disorders and other disorders of personality can be the psychic
cause of this defect, which is here described in legal terms. This particular type of incapacity
consists of a real inability to render what is due by the contract. This could be compared to the
incapacity of a farmer to enter a binding contract to deliver the crops which he cannot possibly
reap; (b) this inability to commit oneself must refer to the essential obligations of marriage: the
conjugal act, the community of life and love, the rendering of mutual help, the procreation and
education of offspring; (c) the inability must be tantamount to a psychological abnormality. The
mere difficulty of assuming these obligations, which could be overcome by normal effort,
obviously does not constitute incapacity. The canon contemplates a true psychological disorder
which incapacitates a person from giving what is due (cf. John Paul II, Address to R. Rota, Feb.
5, 1987). However, if the marriage is to be declared invalid under this incapacity, it must be
proved not only that the person is afflicted by a psychological defect, but that the defect did in
fact deprive the person, at the moment of giving consent, of the ability to assume the essential
duties of marriage and consequently of the possibility of being bound by these duties.
Justice Sempio-Diy cites with approval the work of Dr. Gerardo Veloso, a former Presiding
Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch 1),
who opines that psychological incapacity must be characterized by (a) gravity, (b) juridical
antecedence, and (c) incurability. The incapacity must be grave or serious such that the party
would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in
the history of the party antedating the marriage, although the overt manifestations may emerge
only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be
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beyond the means of the party involved.
It should be obvious, looking at all the foregoing disquisitions, including, and most
importantly, the deliberations of the Family Code Revision Committee itself, that the use of the
phrase “psychological incapacity” under Article 36 of the Code has not been meant to
comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio
Baluma’s “Void and Voidable Marriages in the Family Code and their Parallels in Canon Law,”
quoting from the Diagnostic Statistical Manual of Mental Disorder by the American Psychiatric
Association; Edward Hudson’s “Handbook II for Marriage Nullity Cases”). Article 36 of the
Family Code cannot be taken and construed independently of, but must stand in conjunction
with, existing precepts in our law on marriage. Thus correlated, “psychological incapacity”
should refer to no less than a mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must be assumed and discharged by
the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their
mutual obligations to live together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law has been to confine the
meaning of “psychological incapacity” to the most serious cases of personality disorders clearly
demonstrative of an utter intensitivity or inability to give meaning and significance to the
marriage. This pschologic condition must exist at the time the marriage is celebrated. The law
does not evidently envision, upon the other hand, an inability of the spouse to have sexual
relations with the other. This conclusion is implicit under Article 54 of the Family Code which
considers children conceived prior to the judicial declaration of nullity of the void marriage to be
“legitimate.”
The other forms of psychoses, if existing at the inception of marriage, like the state of a party
being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or
lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code.
If drug addiction, habitual alcholism, lesbianism or homosexuality should occur only during the
marriage, they become mere grounds for legal separation under Article 55 of the Family Code.
These provisions of the Code, however, do not necessarily preclude the possibility of these
various circumstances being themselves, depending on the degree and severity of the disorder,
indicia of psychological incapacity.
Until further statutory and jurisprudential parameters are established, every circumstance that
may have some bearing on the degree, extent, and other conditions of that incapacity must, in
every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity
is peremptorily decreed. The well-considered opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines might be helpful or even desirable.
Marriage is not an adventure but a lifetime commitment. We should continue to be reminded
that innate in our society, then enshrined in our Civil Code, and even now still indelible in
Article 1 of the Family Code, is that —
Art. 1. Marriage is a special contract of permanent union between a man a woman entered into
in accordance with law for the establishment of conjugal and family life. It is the foundation of
the family and an inviolable social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by this Code. (Emphasis
supplied.)
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Our Constitution is no less emphatic:
Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.
Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State. (Article XV, 1987 Constitution).
The above provisions express so well and so distinctly the basic nucleus of our laws on
marriage and the family, and they are doubt the tenets we still hold on to.
ON THE SEPARATION OF CHURCH AND STATE
ALEJANDRO ESTRADA v. SOLEDAD S. ESCRITOR
(A.M. No. P-02-1651, June 22, 2006)
PUNO, J.:
xxx
We ascertained two salient features in the review of religious history: First, with minor
exceptions, the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of
Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of
religion by secular powers to promote secular purposes and policies, and the willing acceptance
of that role by the vanguards of religion in exchange for the favors and mundane benefits
conferred by ambitious princes and emperors in exchange for religion’s invaluable service. This
was the context in which the unique experiment of the principle of religious freedom and
separation of church and state saw its birth in American constitutional democracy and in human
history.
Strictly speaking, the American experiment of freedom and separation was not translated in
the First Amendment. That experiment had been launched four years earlier, when the founders
of the republic carefully withheld from the new national government any power to deal with
religion. As James Madison said, the national government had no “jurisdiction” over religion or
any “shadow of right to intermeddle” with it.
The omission of an express guaranty of religious freedom and other natural rights, however,
nearly prevented the ratification of the Constitution. The restriction had to be made explicit with
the adoption of the religion clauses in the First Amendment as they are worded to this day. Thus,
the First Amendment did not take away or abridge any power of the national government; its
intent was to make express the absence of power. It commands, in two parts (with the first part
usually referred to as the Establishment Clause and the second part, the Free Exercise Clause),
viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof.
The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve
contradictory purposes. They have a single goal — to promote freedom of individual religious
beliefs and practices. In simplest terms, the Free Exercise Clause prohibits government from
inhibiting religious beliefs with penalties for religious beliefs and practice, while the
Establishment Clause prohibits government from inhibiting religious belief with rewards for
religious beliefs and practices. In other words, the two religion clauses were intended to deny
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government the power to use either the carrot or the stick to influence individual religious beliefs
and practices.
In sum, a review of the Old World antecedents of religion shows the movement of
establishment of religion as an engine to promote state interests, to the principle of nonestablishment to allow the free exercise of religion.
2. Religion Clauses in the U.S. Context
xxx
U.S. history has produced two identifiably different, even opposing, strains of jurisprudence
on the religion clauses. First is the standard of separation, which may take the form of either (a)
strict separation or (b) the tamer version of strict neutrality or separation, or what Mr. Justice
Carpio refers to as the second theory of governmental neutrality. Although the latter form is
not as hostile to religion as the former, both are anchored on the Jeffersonian premise that a “wall
of separation” must exist between the state and the Church to protect the state from the church.
Both protect the principle of church-state separation with a rigid reading of the principle. On the
other hand, the second standard, the benevolent neutrality or accommodation, is buttressed by
the view that the wall of separation is meant to protect the church from the state. A brief review
of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the state
from the church, and the state’s hostility towards religion allows no interaction between the two.
According to this Jeffersonian view, an absolute barrier to formal interdependence of religion
and state needs to be erected. Religious institutions could not receive aid, whether direct or
indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the
programs placed on believers. Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a free choice among
political views, thus a strict “wall of separation” is necessary.
Strict separation faces difficulties, however, as it is deeply embedded in American history
and contemporary practice that enormous amounts of aid, both direct and indirect, flow to
religion from government in return for huge amounts of mostly indirect aid from religion. For
example, less than twenty-four hours after Congress adopted the First Amendment’s prohibition
on laws respecting an establishment of religion, Congress decided to express its thanks to God
Almighty for the many blessings enjoyed by the nation with a resolution in favor of a
presidential proclamation declaring a national day of Thanksgiving and Prayer. Thus, strict
separationists are caught in an awkward position of claiming a constitutional principle that has
never existed and is never likely to.
The tamer version of the strict separationist view, the strict neutrality or separationist view,
(or, the governmental neutrality theory) finds basis in Everson v. Board of Education, where
the Court declared that Jefferson’s “wall of separation” encapsulated the meaning of the First
Amendment. However, unlike the strict separationists, the strict neutrality view believes that the
“wall of separation” does not require the state to be their adversary. Rather, the state must be
neutral in its relations with groups of religious believers and non-believers. “State power is no
more to be used so as to handicap religions than it is to favor them.” The strict neutrality
approach is not hostile to religion, but it is strict in holding that religion may not be used as a
basis for classification for purposes of governmental action, whether the action confers rights or
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privileges or imposes duties or obligations. Only secular criteria may be the basis of government
action. It does not permit, much less require, accommodation of secular programs to religious
belief.
The problem with the strict neutrality approach, however, is if applied in interpreting the
Establishment Clause, it could lead to a de facto voiding of religious expression in the Free
Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Abington
School District v. Schempp, strict neutrality could lead to “a brooding and pervasive devotion
to the secular and a passive, or even active, hostility to the religious” which is prohibited by the
Constitution. x x x
Thus, the dilemma of the separationist approach, whether in the form of strict separation or
strict neutrality, is that while the Jeffersonian wall of separation “captures the spirit of the
American ideal of church-state separation,” in real life, church and state are not and cannot be
totally separate. This is all the more true in contemporary times when both the government and
religion are growing and expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points.
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of the
“wall of separation,” associated with Williams, founder of the Rhode Island colony. Unlike the
Jeffersonian wall that is meant to protect the state from the church, the wall is meant to protect
the church from the state. This doctrine was expressed in Zorach v. Clauson, which held, viz:
The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways, in
which there shall be no concert or union or dependency one or the other. That is the common
sense of the matter. Otherwise, the state and religion would be aliens to each other — hostile,
suspicious, and even unfriendly. Churches could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire protection to religious groups.
Policemen who helped parishioners into their places of worship would violate the Constitution.
Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief
Executive; the proclamations making Thanksgiving Day a holiday; “so help me God” in our
courtroom oaths — these and all other references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or
agnostic could even object to the supplication with which the Court opens each session: “God
save the United States and this Honorable Court.”
xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. . . When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule of public events, it follows the
best of our traditions. For it then respects the religious nature of our people and accommodates
the public service to their spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous indifference to religious groups. .
. But we find no constitutional requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts to widen their effective scope of
religious influence.
Benevolent neutrality recognizes that religion plays an important role in the public life of the
United States as shown by many traditional government practices which, to strict neutrality,
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pose Establishment Clause questions. Among these are the inscription of “In God We Trust” on
American currency; the recognition of America as “one nation under God” in the official pledge
of allegiance to the flag; the Supreme Court’s time-honored practice of opening oral argument
with the invocation “God save the United States and this Honorable Court”; and the practice of
Congress and every state legislature of paying a chaplain, usually of a particular Protestant
denomination, to lead representatives in prayer. These practices clearly show the preference for
one theological viewpoint — the existence of and potential for intervention by a god — over the
contrary theological viewpoint of atheism. Church and government agencies also cooperate in
the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism
and drug addiction, in foreign aid and other government activities with strong moral dimension.
Examples of accommodations in American jurisprudence also abound, including, but not
limited to the U.S. Court declaring the following acts as constitutional: a state hiring a
Presbyterian minister to lead the legislature in daily prayers, or requiring employers to pay
workers compensation when the resulting inconsistency between work and Sabbath leads to
discharge; for government to give money to religiously-affiliated organizations to teach
adolescents about proper sexual behavior; or to provide religious school pupils with books; or
bus rides to religious schools; or with cash to pay for state-mandated standardized tests.
xxx
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence, and Practice
a. U.S. Constitution and jurisprudence vis-à-vis Philippine Constitution
xxx
There is no ambiguity with regard to the Philippine Constitution’s departure from the U.S.
Constitution, insofar as religious accommodations are concerned. It is indubitable that
benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent
and framework underlying the Philippine Constitution. As stated in our Decision, dated August
4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses were
largely adopted from the First Amendment of the U.S. Constitution x x x Philippine
jurisprudence and commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One might
simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of
U.S. religion clause jurisprudence and the two identifiable streams; thus, when a religion clause
case comes before the Court, a separationist approach or a benevolent neutrality approach
might be adopted and each will have U.S. authorities to support it. Or, one might conclude that as
the history of the First Amendment as narrated by the Court in Everson supports the
separationist approach, Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses’ history. As a result, in a case where the party claims religious liberty
in the face of a general law that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not be breached if
the Court grants him an exemption. These conclusions, however, are not and were never
warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on
religion in all three constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting provisions should be
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reconciled and harmonized in a manner that will give to all of them full force and effect. From
this construction, it will be ascertained that the intent of the framers was to adopt a
benevolent neutrality approach in interpreting the religious clauses in the Philippine
constitutions, and the enforcement of this intent is the goal of construing the constitution.
[citations omitted]
We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s interpretation of
the religion clauses to effectively deny accommodations on the sole basis that the law in question
is neutral and of general application. For even if it were true that “an unbroken line of U.S.
Supreme Court decisions” has never held that “an individual’s religious beliefs [do not] excuse
him from compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate,” our own Constitutions have made significant changes to accommodate and exempt
religion. Philippine jurisprudence shows that the Court has allowed exemptions from a law
of general application, in effect, interpreting our religion clauses to cover both mandatory
and permissive accommodations.
To illustrate, in American Bible Society v. City of Manila, the Court granted to plaintiff
exemption from a law of general application based on the Free Exercise Clause. In this case,
plaintiff was required by an ordinance to secure a mayor’s permit and a municipal license as
ordinarily required of those engaged in the business of general merchandise under the city’s
ordinances. Plaintiff argued that this amounted to “religious censorship and restrained the free
exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and
other religious literature to the people of the Philippines.” Although the Court categorically held
that the questioned ordinances were not applicable to plaintiff as it was not engaged in the
business or occupation of selling said “merchandise” for profit, it also ruled that applying the
ordinance to plaintiff and requiring it to secure a license and pay a license fee or tax would
impair its free exercise of religious profession and worship and its right of dissemination of
religious beliefs “as the power to tax the exercise of a privilege is the power to control or
suppress its enjoyment.” The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraint of such right
can only be justified like other restraints of freedom of expression on the grounds that there is
a clear and present danger of any substantive evil which the State has the right to prevent.
(citations omitted, emphasis supplied)
xxx
Having established that benevolent neutrality-accommodation is the framework by which
free exercise cases must be decided, the next question then turned to the test that should be used
in ascertaining the limits of the exercise of religious freedom. In our Decision dated August 4,
2003, we reviewed our jurisprudence, and ruled that in cases involving purely conduct based on
religious belief, as in the case at bar, the compelling state interest test, is proper, viz:
xxx
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. [The
Court] explained this process in detail, by showing the questions which must be answered in
each step, viz:
…First, “[H]as the statute or government action created a burden on the free exercise of
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religion?” The courts often look into the sincerity of the religious belief, but without inquiring
into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth as
held in Ballard and Cantwell. The sincerity of the claimant’s belief is ascertained to avoid the
mere claim of religious beliefs to escape a mandatory regulation.
xxx
Second, the court asks: “[I]s there a sufficiently compelling state interest to justify this
infringement of religious liberty?” In this step, the government has to establish that its
purposes are legitimate for the state and that they are compelling. Government must do more
than assert the objectives at risk if exemption is given; it must precisely show how and to what
extent those objectives will be undermined if exemptions are granted.
xxx
Third, the Court asks: “[H]as the state in achieving its legitimate purposes used the least
intrusive means possible so that the free exercise is not infringed any more than necessary to
achieve the legitimate goal of the state?” The analysis requires the state to show that the means in
which it is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen
a way to achieve its legitimate state end that imposes as little as possible on religious liberties x x
x. [citations omitted]
Again, the application of the compelling state interest test could result to three situations of
accommodation: First, mandatory accommodation would result if the Court finds that
accommodation is required by the Free Exercise Clause. Second, if the Court finds that the
State may, but is not required to, accommodate religious interests, permissive accommodation
results. Finally, if the Court finds that that establishment concerns prevail over potential
accommodation interests, then it must rule that the accommodation is prohibited.
xxx
On this point, two things must be clarified: first, in relation to criminal statutes, only the
question of mandatory accommodation is uncertain, for Philippine law and jurisprudence have,
in fact, allowed legislative accommodation. Second, the power of the Courts to grant exemptions
in general (i.e., finding that the Free Exercise Clause required the accommodation, or
mandatory accommodations) has already been decided, not just once, but twice by the Court.
Thus, the crux of the matter is whether this Court can make exemptions as in Ebralinag and the
American Bible Society, in cases involving criminal laws of general application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the
Philippine religion clauses, the benevolent neutrality-accommodation approach in Philippine
jurisdiction is more pronounced and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of mandatory
accommodations, was to address the “inadvertent burdensome effect” that an otherwise facially
neutral law would have on religious exercise. Just because the law is criminal in nature,
therefore, should not bring it out of the ambit of the Free Exercise Clause. As stated by Justice
O’Connor in her concurring opinion in Smith, “[t]here is nothing talismanic about neutral laws
of general applicability or general criminal prohibitions, for laws neutral towards religion can
coerce a person to violate his religious conscience or intrude upon his religious duties just as
effectively as laws aimed at religion.”
Third, there is wisdom in accommodation made by the Court as this is the recourse of
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minority religions who are likewise protected by the Free Exercise Clause. Mandatory
accommodations are particularly necessary to protect adherents of minority religions from the
inevitable effects of majoritarianism, which include ignorance and indifference and overt
hostility to the minority.
xxx
Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor
will it be applied for the first time, as an exemption of such nature, albeit by legislative act, has
already been granted to Moslem polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis-à-vis the other
fundamental rights in the Bill of Rights. It has been noted that unlike other fundamental rights
like the right to life, liberty or property, the Religion Clauses are stated in absolute terms,
unqualified by the requirement of “due process,” “unreasonableness,” or “lawful order.” Only the
right to free speech is comparable in its absolute grant. Given the unequivocal and unqualified
grant couched in the language, the Court cannot simply dismiss a claim of exemption based on
the Free Exercise Clause, solely on the premise that the law in question is a general criminal law.
If the burden is great and the sincerity of the religious belief is not in question, adherence to the
benevolent neutrality-accommodation approach require that the Court make an individual
determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutralityaccommodation approach does not mean that the Court ought to grant exemptions every time a
free exercise claim comes before it. This is an erroneous reading of the framework which the
dissent of Mr. Justice Carpio seems to entertain. Although benevolent neutrality is the lens with
which the Court ought to view religion clause cases, the interest of the state should also be
afforded utmost protection. This is precisely the purpose of the test — to draw the line between
mandatory, permissible and forbidden religious exercise. Thus, under the framework, the
Court cannot simply dismiss a claim under the Free Exercise Clause because the conduct in
question offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this
precisely is the protection afforded by the religion clauses of the Constitution. As stated in the
Decision:
x x x While the Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious practice or importance of
the state interest or the sufficiency of the means adopted by the state to pursue its interest, the
Court can set a doctrine on the ideal towards which religious clause jurisprudence should be
directed. We here lay down the doctrine that in Philippine jurisdiction, we adopt the
benevolent neutrality approach not only because of its merits as discussed above, but more
importantly, because our constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the Court should take off in
interpreting religion clause cases. The ideal towards which this approach is directed is the
protection of religious liberty “not only for a minority, however small-not only for a
majority, however large but for each of us” to the greatest extent possible within flexible
constitutional limits.
ST. THOMAS AQUINAS ON ROBBERY
PEOPLE OF THE PHILIPPINES v. TEODORO DE LA CRUZ y TOJOS, ET AL.
(G.R. No. L-52, February 21, 1946)
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PERFECTO, J.:
One of the geniuses who flourished in the thirteenth century, the philosopher and theologian
whose exalted native endowment and original creative power in the intellectual field is the
admiration of Christian world, Saint Thomas Aquinas, maintained that the appropriation of
others’ goods which they (the owners) do not need, if made in obedience to extreme necessity,
does not constitute robbery. He declared that the superfluous things in the possession of some
persons, by natural law, are goods for the maintenance of the poor. Evident and urgent necessity
makes the one who appropriates the goods of another for the maintenance of his own life the
legal owner of said goods (Summa Theologica, 2d part, Question LXVI, Art. VII). To strengthen
his position, he quoted from Saint Ambrose (serm. 64, De temp. Decret. 47, cap. Sicut hi) the
following: “The bread you are retaining belongs to the hungry; the cloth you are keeping aside
belongs to the naked; the money you are hiding underground is for the redemption and
absolution of the unfortunate.” But, without subscribing necessarily to the above propositions of
the two saintly authors, in the present case, there is absolutely no showing that extreme necessity
impelled accused to perpetrate the robbery here in question. There is not the remotest hint that
appellant would have died of hunger without the money and jewel which he and his fellow
gangsters took from complainants’ drug store, or that he would face an imminent danger of
losing any vital limb or right. On the contrary, he testified that he was engaged in selling
foodstuffs, such as bread; wearing apparel, such as shoes; and even articles of luxury, such as
pomade. And it is evident that he earned more than enough to satisfy his prime needs, for he
allowed himself the leisure and the spare money for gambling. He robbed, therefore, not because
he was compelled by any pressing necessities, but by following impulses of moral perversity. For
such individual, and for all individuals belonging to his depraved tribe, there is no reason to
waste any pity or leniency. The race of robbers, bandits, gangsters, and other malefactors of the
same brand, should be ostracized perpetually from human society until the shame shall have
disappeared completely from memory.
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CHAPTER VI
LEX MERCATORIA: FROM CUSTOM TO LAW
I don’t want a lawyer to tell me what I cannot do.
I hire him to tell me how to do what I want to do.
– Entrepreneur and banker J.P. Morgan, in The Life of Elbert H. Gary
Lex Mercatoria by Gerard de Malynes
At a click of a button, you can now sell, buy, order, deposit, withdraw, or close a deal
anywhere in the world. The cyber world and electronic commerce have made business
transactions fast, convenient, and globalized. While technology constantly transforms
commercial laws, the fundamental rules on buying and selling, making contracts and guaranties,
and principles of good faith and liability, supply and demand, and customs and taxation, have
endured since man started trade. In fact, what we now call international commercial practices can
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be traced to established customs of ancient and medieval maritime trade, called as “lex
mercatoria” or law merchant.
Lex mercatoria was a body of rules and principles laid down by medieval merchants to
regulate their deals. It was administered by special commercial courts along main trade routes,
also called as “fair courts.”
The choice of arbitrators, procedures, applicable law, customs, and usage were decided by the
parties and the judge, without delay, to execute what was agreed in a contract as the law between
the parties. Time was the essence in commercial trading lest goods spoil, charges and interests
run, goods lose their value, or there occur defaults or delay.
Because traders did not have the same means of exchange and may not always have them at
hand, lex mercatoria originated the “writing obligatory” that we now refer to as bills of
exchange, checks, and promissory notes. This way, creditors could easily transfer debts without
complex forms of proof, by promising indebtedness to the bearer. International taxation also
started at this time since deals were heftily taxed in places where exchanges were made.
Because local variations of trading had to be taken into account, terms may be implied into
contracts by establishing usage and by presenting evidence of it. Conflict-of-law cases still
follow this rule, where customs must first be established before they can be considered by the
courts. This also allowed commercial courts to absorb changes in business practices and customs
and to keep abreast of developments.
In a quasi-legislative fashion, merchants had drawn standard-form contracts where the other
party need only sign or put his seal. Merchant guilds and associations, being the practitioners of
the trade, mainstreamed the terms of contracts and prices of commodities.
From a body of customs, lex mercatoria was eventually encoded into the laws of England
through the Statute of Merchants in 1283 and later in France through the Code Commercial in
1807. Lex mercatoria was first published in a book in 1622 by Gerard de Malynes, titled as the
Consuetudo vel Lex Mercatoria or the Ancient Law Merchant.
Lex mercatoria became part of common law in 1700s as mercantile customs were cited by
England’s chief justices Edward Coke and William Murray, the first Earl of Mansfield known as
the “Father of English Commercial Law.” American courts and commercial codes, from which
the Philippines inherited its commercial laws, incorporated the jurisprudence of Lord Mansfield
in insurance, trademarks, partnership, common carriers, contracts, and negotiable instruments.
American common law, considered “persuasive” in Philippine jurisprudence, cites Mansfield’s
decisions.
Mansfield, the “Lord” of Commercial Law
Choosing to be rich starts by choosing your ideas.
— Robert T. Kiyosaki, Rich Dad, Poor Dad
Lord Mansfield, who became Chief Justice of the King’s Bench in 1756, taught that any
satisfactory system of commercial law must be in harmony with the recognized mercantile
customs of other civilized nations. As a natural law theorist, he said that “mercantile law is not
the law of a particular country, but the law of all nations.”
Mansfield sped up the judicial system by the submission of motions. He also admitted
witnesses to prove the law of merchants, and considered it as a point of law.
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In Carter v. Boehm (1766, 3 Burr 1905), Mansfield brought forth the duty of uberrima fides
(assumption of good faith) to an insurance claimant. In the case, Governor Carter of Fort
Marlborough, despite knowing that the fort cannot resist attack from European settlers, filed for
insurance claim from Boehm when the fort was taken by the French. Mansfield denied the
insurance claim, saying:
Insurance is a contract based upon speculation. The special facts, upon which the contingent
chance is to be computed, lie most commonly in the knowledge of the insured only; the
underwriter trusts to his representation and proceeds upon the confidence that he does not keep
back any circumstance to his knowledge…Good faith forbids either party by concealing what he
privately knows, to draw the other into a bargain from his ignorance of that fact, and his
believing the contrary.
Mansfield supported free trade, as he was steeped into ancient Greek and Roman trading
history and writers such as Cicero and Xenophon. Influenced by their natural law principles, he
believed that equity should be applied by the courts. In Luke v. Lyde (1759, 2 Burr 882), he made
merchant sails pay for freight lost at sea, citing the Roman Pandects, arguing that a carrier is in
the nature of an insurer.
The first judicial pronouncement on patent was said to have been made by Mansfield in
Loardet v. Johnson (1778), an unreported case, where he said that an inventor must specify the
compositions of his gunpowder to disclose the procedure as he would direct an artist: “The
inventor has the benefit during the term, and the public has the benefit after.”
Meanwhile, Mansfield’s Somersett’s Case (1772, 20 State Tr 1) ruled that the slave trade is
unlawful and that “the black must be discharged.” Mansfield also formulated the “Lord
Mansfield’s Rule,” an old rule in construction that “the declarations of a father or mother cannot
be admitted to bastardize the issue born after marriage.” Today, this has meant the presumption
of a husband’s paternity of a child born within a marriage.
Lon Fuller, in Positivism and Fidelity to Law: A Reply to Professor Hart, criticized the recent
positivist and formalist approach to commercial law and its belated counterrevolution against
Mansfield’s application of natural law principles of equity. Referrals to arbitration courts and
arbitration clauses are proof that even commercial contracts cannot be reduced to mechanistic,
matter-of-form activities. “The matter has reached a stage approaching crisis as commercial
cases are increasingly being taken to arbitration,” Fuller wrote. “The chief reason for this
development is that arbitrators are willing to take into account the needs of commerce and
ordinary standards of commercial fairness.”
Philippine Commercial Laws, Copy and Paste
Congress shall make no law abridging the freedom of production and trade.
— Ayn Rand, Atlas Shrugged
Antonio de Morga’s History of the Philippine Islands observes that among pre-colonial
Filipinos, usury and debt bondage were common: “Loans with interest were very common and
much practiced, and the interest incurred was excessive,” Morga wrote. “The debt doubled and
increased all the time while payment was delayed, until it stripped the debtor of all his
possessions, and he and his children, when all their property was gone, became slaves.” The
customary method of trading, according to Morga, was by bartering goods. Sometimes the price
could be paid in gold or in metal bells brought from China.
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Dean Cesar L. Villanueva, in Revisiting the Underlying Philosophical Underpinning of
Philippine Commercial Laws, discussed the history of commercial statutes and criticisms on
Philippine economic policies. In the chapter “Historical Bases of Philippine Economic
Philosophy,” Villanueva presented why trading and industrialization did not thrive for the most
part of Philippine history and why our law is suspicious of foreign investors.
According to Villanueva, the Philippines was not a commercial nation even before the Spanish
came. Most of the written and oral laws of barangays and ethnic tribes were about family and
religious matters, not commercial engagements. Meanwhile, Spanish colonization for more than
300 years was essentially a missionary enterprise. The thrust was the spread of religion. The
country then did not experience a financial system other than deficit spending.
Majority of Filipinos became part of a feudal system bonded to the land, as only the caciques
benefitted from the land grants and the galleon trade with Mexico. Trade profited the Spanish
oligarchy and the Chinese merchants who dominated retail trade in Manila’s Chinese community
called Parian (“the market place”).
Villanueva noted that American occupation for forty years introduced free market to the
Philippines. American common-law-based commercial laws replaced the Spanish Code of
Commerce. Commercial statutes were wholesale copies of American laws, in an attempt to
imitate Uncle Sam’s robust industrialization, including: the Corporation Law, the Chattel
Mortgage Law, the Insolvency Law, the Negotiable Instruments Law, the Warehouse Receipts
Law, the Insurance law, the Salvage Law, the Usury Law, the Copyright Law, the Law on
Monopolies and Combinations, the Business Names Law, the General Bonded Warehouse Act,
the Bulk Sales Law, the Carriage of Goods by Sea Act, the Public Service Act, the Securities
Act, and the law creating the SEC Commission.
The problem, according to Villanueva, was that certain areas in the Code of Commerce, being
common daily transactions, were thereafter repealed and moved into the Civil Code, such as
provisions on Partnership, Agency, Sales, Loan, Deposit, and Guaranty. The effect was that Civil
Code principles had to apply to commercial statutes, such as the civil principle that mere
noncompliance does not constitute a default of obligation (Art. 1169).
In commercial law, time is essential, and there should be no need for a demand to constitute
delay. But incorporating civil law principles, demand is still required, judicial or extra-judicial,
for liability to arise due to delay. The fixing of the date of performance of an obligation should
mean that time is of the essence of the contract.
The U.S. and the Philippines were not equal trading partners, too. Villanueva writes that
Philippine exporters had to specialize on crops and agricultural raw materials, while Americans
would deliver industrial and processed goods. This maintained the agricultural economy of the
country, with a low level of industrialization. Despite the free enterprise system of the U.S., the
pattern for the Philippines was for “big government” as enterprises needed government
participation under the occupant’s watch.
After World War II, the Philippines became an independent republic, but maintained its
special privileges and quotas to American investors. The peso was artificially pegged to half the
value of the dollar. This solidified American control over the Philippine industry, which
embittered socialist movements to distrust foreign investors.
As a young republic, the Philippines ventured into a revolutionary nationalistic framework that
was political-social rather than economic-commercial. This isolationist, anti-foreign mood
eventually spirited the 1987 Constitution, which was partly drafted by socialists who helped oust
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former President Ferdinand Marcos. The 1987 Constitution directs economic nationalism,
including the “Filipino First Policy,” and nationalization provisions of key industries and
transactions.
Although investment laws and retail trade have been recently liberalized, the problem remains
with the organic charter that requires full or partial Filipino ownership (voting capital stock) of
vital corporations, including full Filipino ownership of the mass media. Villanueva suggested
liberalizing the Philippine economy to increase foreign investment, technology, and
capitalization, and to facilitate globalized trade. He believed in opening to foreigners the
ownership of land as entitlement to Philippine real estate will mean investment can stay in the
country where the immovable realty is located, rather than redirected abroad.
It is to be noted that mercantile law, unlike other fields of law, is customary in nature and
develops with the state of the economy, market conditions, and commercial technology. It may
not therefore be wise to rest them on black-letter law such as the Constitution, but must be free to
follow the “best practices” of the trade.
In the next chapter, we will discuss how court evidentiary practices developed with man’s
entanglement with doubt, proof, possibility, and certainty.
CHAPTER VI CASE READINGS
MANSFIELD ON UNCONSCIONABLE SALES
THE UNITED STATES v. FRANCISCO CONSTANTINO TAN QUINGCO CHUA
(G.R. No. L-13708, January 29, 1919)
MALCOLM, J.:
Most of the ordinary contracts, when entered into in good faith, do not come within the pale of
usury. Any person owning property may sell it at such price and at such terms as to the time and
mode of payment as he may see fit, and such a sale, if bona fide, cannot be usurious however
unconscionable it may be. Lord Mansfield characteristically says: “I lay the foundation of the
whole upon a man’s going to borrow under colour of buying: there the contract is usurious; but
where it is a bona fide sale . . . it certainly is not.” (Floyer v. Edwards, 1 Cowp., 112, 116; 98
Eng. Reprint, 995.0). Rent charges as in the document before us, may be created or transferred
without regard to the usury laws as long as such forms of transactions are not used as mere
covers for usurious loans. A hard bargain need not necessarily be a void bargain. (See Webb on
Usury, Sec. 47.)
MANSFIELD’S OLD RULE ON DRAWER-DRAWEE LIABILITY
PHILIPPINE NATIONAL BANK v. THE NATIONAL CITY BANK OF NEW YORK , ET AL.
(G.R. No. L-43596, October 31, 1936)
RECTO, J.:
II. The old doctrine that a bank was bound to know its correspondent’s signature and that a
drawee could not recover money paid upon a forgery of the drawer’s name, because it was said,
the drawee was negligent not to know the forgery and it must bear the consequence of its
negligence, is fast fading into the misty past, where it belongs. It was founded in misconception
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of the fundamental principles of law and common sense. (2 Morse, Banks and Banking, p. 1031.)
Some of the cases carried the rule to its furthest limit and held that under no circumstances
(except, of course, where the purchaser of the bill has participated in the fraud upon the drawee)
would the drawee be allowed to recover bank money paid under a mistake of fact upon a bill of
exchange to which the name of the drawer had been forged. This doctrine has been freely
criticized by the eminent authorities, as a rule too favorable to the holder, not the most fair, nor
best calculated to effectuate justice between the drawee and the drawer. (5 R.C.L., p. 556.)
The old rule which was originally announced by Lord Mansfield in the leading case of Price v.
Neal (3 Burr., 1354), elicited the following comment from Justice Holmes, then Chief Justice of
the Supreme Court of Massachusetts, in the case of Dedham National Bank v. Everett National
Bank (177 Mass., 392). “Probably the rule was adopted from an impression of convenience
rather than for any more academic reason; or perhaps we may say that Lord Mansfield took the
case out of the doctrine as to payments under a mistake of fact by the assumption that a holder
who simply presents negotiable paper for payment makes no representation as to the signature,
and that the drawee pays at his peril.”
Such was the reaction that followed Lord Mansfield’s rule which Justice Story of the United
States Supreme adopted in the case of Bank of United States v. Georgia (10 Wheat., 333), that in
B. B. Ford & Co. v. People’s Bank of Orangeburg (74 S. C., 180), it was held that “an
unrestricted indorsement of a draft and presentation to the drawee is a representation that the
signature of the drawer is genuine”, and in Lisbon First National Bank v. Wyndmere Bank (15 N.
D., 299), it was also held that “the drawee of a forged check who has paid the same without
detecting the forgery, may upon discovery of the forgery, recover the money paid from the party
who received the money, even though the latter was a good faith holder, provided the latter has
not been misled or prejudiced by the drawee’s failure to detect the forgery.”
Daniel, in his treatise on Negotiable Instruments, has the following to say:
In all the cases which hold the drawee absolutely estoppel by acceptance or payment from
denying genuineness of the drawer’s name, the loss is thrown upon him on the ground of
negligence on his part in accepting or paying, until he has ascertained the bill to be genuine. But
the holder has preceded him in negligence, by himself not ascertaining the true character of the
paper before he received it, or presented it for acceptance or payment. And although, as a general
rule, the drawee is more likely to know the drawer’s handwriting than a stranger is, if he is in fact
deceived as to its genuineness, we do not perceive that he should suffer more deeply by mistake
than a stranger, who, without knowing the handwriting, has taken the paper without previously
ascertaining its genuineness. And the mistake of the drawee should always be allowed to be
corrected, unless the holder, acting upon faith and confidence induced by his honoring the draft,
would be placed in a worse position by according such privilege to him. This view has been
applied in a well considered case, and is intimidated in another; and is forcibly presented by Mr.
Chitty, who says it is going a great way to charge the acceptor with knowledge of his
correspondent’s handwriting, “unless some bona fide holder has purchased the paper on the faith
of such an act.” Negligence in making payment under a mistake of fact is not now deemed a bar
to recovery of it, and we do not see why any exception should be made to the principle, which
would apply as well as to release an obligation not consummated by payment. (Vol. 2, 6th
edition, pp. 1537-1539.)
MANSFIELD ON INTERNATIONAL MARITIME LAW
143
COMPAGNIE FRANCO-INDOCHINOISE v. DEUTSCH-AUSTRALISCHE DAMPSCHIFFS
GESELLSCHAFT
(G.R. No. L-1395, January 17, 1919)
STREET, J.:
The law in force in these Islands is more favorable to penalties than the law of England and
the United States; and it is unnecessary here to adopt the exact reasoning followed in the cases
above cited. It is perhaps enough for present purposes merely to say that the clause under
considerable is not applicable to the situation before us. Nevertheless, it must not be forgotten
that this charter party is not to be construed exclusively by the law of the Philippine Islands, nor
even by the local law of the country in which it was executed. It must be considered as governed
by the general maritime law (Watts v. Camors, supra). In this connection it is well to be
reminded that, as was said by Lord Mansfield, in Luke v. Lyde ([1759], 2 Burr., 887), the
maritime law “is not the law of a particular country, but the general law of nation.” Again, said
he, quoting the eloquent words of Cicero: “Non erit alia lex Romae, alia Athenis; alia nunc, alia
posthac; sed et apud omnes gentes et omne tempore una eademque lex obtinebit.”maxims (There
shall not be one law at Rome, another at Athens; one now, another hereafter; but among all
nations one and the same law shall prevail.)
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CHAPTER VII
REMEDIAL LAW: THE EMPIRICAL
PHILOSOPHERS
Numquam ponenda est pluralitas sine necessitate.
(Do not posit so many things unnecessarily).
— The Lex Parsimoniae of William of Ockam
I. BACON’S INDUCTIVE JURISPRUDENCE
Knowledge is power.
This familiar quote from Francis Bacon could not be less true today in an age of information
technology. Even for students of the law, a repository of legal knowledge is a powerhouse to
keep.
Bacon practiced law and served as speaker of the Parliament, Solicitor General, and Lord
Chancellor of England’s Queen Elizabeth I and King James I. He was an expert in English
constitutional law. His legal career ended after being charged of corruption and bribery that
permanently deprived him of government office and sentenced him to prison.
As a man of science and law, Bacon is the “Father of Experimental Science” and his
“inductive method” paved way to the Industrial Age, where science moved from speculation to
invention and discovery. He proposed that scientific work should be for charitable purposes to
alleviate man’s miseries. He also played a role in creating the British colonies of Virginia, the
Carolinas, and Newfoundland. He wrote the novel The New Atlantis, a place where freedom of
religion existed, which influenced the drafting of the Napoleonic Code and the American
Constitution.
Bacon used his inductive method to justify the use of precedents in common-law, which he
termed as “unwritten laws.” Case repositories are treated as evidence of an “unwritten law” from
which, related cases are applied and logically turned into principles. Opposing legal briefs can be
used as adversarial hypotheses in applying the “unwritten law” to a new set of facts.
The process follows the stare decisis of a case that grows by each new application and
individual ruling. Bacon stressed the importance of legal reports and archiving as source of
precedents that had been available with the invention of printing. He used and popularized this
new method through legal briefs and was thus considered by some jurists to be the “Father of
Modern Jurisprudence.”
In his Novum Organum, Bacon introduced his inductive method that requires (1) the
accumulation of a store of particular empirical observations in a tabulation or repository; (2)
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inductively inferring lesser axioms, (3) then inductively inferring middle axioms, (4) and then
proposing the most general of notions. In other words, from careful observation of individual or
particular cases, we arrive into premises and general rules. Thus, from individual cases we can
formulate principles and doctrines. This is the reverse of the deductive logical method of
Aristotle, where from general and universal laws or rules, we arrive into particular or individual
applications.
Bacon was critical of mere abstraction not supported by individual observation in arriving into
laws or principles. For him, the right method for science (and law) is similar to the scientific
method today: first, observe facts, then record the observations, then amass a body of data,
perceive the general law at work, test the hypothesis, and if the experiment or application affirms
the hypothesis, arrive into a new law. Once maxims are formulated, these can be applied back to
new cases. This inductive syllogism is part of the art of judging.
In making judgments, Bacon warned of the four “idols”: (1) the “idols of the tribe,” referring
to illusions of appearances and reliance on our primitive senses; (2) the “idols of the cave,”
referring to generalization of our limited “caved” experience; (3) the “idols of the market,” or the
imperfections coming from the choice of language and communication; and (4) the “idols of the
theater,” or the flaws of philosophies, theories, and speculations.
II. EXHUMING THE EVIDENCE: HUME’S
PRESUMPTIONS AND PROBABILITIES
Chance, too, which seems to rush along with slack reins, is bridled and governed by law.
— Boethius, The Consolation of Philosophy
Rule 131 of the Rules of Evidence gives us a list of “disputable presumptions” that are
assumed true until contradicted by other evidence. It is presumed that a person intends the
ordinary consequences of his voluntary act; that a person takes ordinary care of his concerns; that
official duty has been regularly performed; that private transactions have been fair and regular;
that ordinary course of business has been followed; that a thing once proven to exist continues as
long as usual with the things of that nature; that the law has been obeyed; etc. (Sec.3.).
Why these presumptions? Because these are events that are more likely, probable, customary,
or regular in occurrence, although not necessarily and always true. As such, these are only
presumptions.
It was the philosopher-historian David Hume who said that if the sun rises today, it does not
follow that it will tomorrow. There is no necessity or certainty that the sun will rise tomorrow
since improbabilities can always happen. Nevertheless, whenever there are reports of
extraordinary events, improbabilities, or miracles, we must always favor evidence for the
probable over the improbable, say, that the sun rose over reports that it did not.
The reason why we do favor probabilities is based on “custom,” that is, what we became
accustomed based on the evidence of past experience. Everything is possible indeed, but in our
judgment, we better err on the side of the more possible, of what more regularly or customarily
occurs. But again, these are not facts, only presumptions. If a contrary fact is presented, the
presumption is disputed.
Probability and Improbability
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Laws of reason and science, according to Hume, are generalizations of the mind. Anything and
everything can happen against things we consider customary. What we consider as causal events
are mere habitual occurrences or sequence of events and the sequence can always change.
Nevertheless, this does not mean that the two sides of a story or two contrary occurrences have
equal probability of happening, or equal believability. In the An Enquiry Concerning Human
Understanding, Hume clarified: “In our reasonings concerning matter of fact, there are all
imaginable degrees of assurance…A wise man, therefore, proportions his belief to the evidence.”
For Hume, any report of the irregular or of the miraculous goes against ordinary experience
and must surmount the balance of probabilities and previous human experience. There is always
a chance that something else can happen, but the frequency of something happening in the past
affects our judgment of it happening again. Without previous evidence, it is safe, although never
certain, to assume that nothing extraordinary happened.
His analysis, called “Hume’s fork,” is useful in being skeptical of proffered evidence. In court,
lawyers and investigators try to establish the cause and effect of events and how things must
have happened based on evidence from a crime scene.
Why should an accused, for example, a father accused of killing his child, be first presumed
innocent? Because customarily, a person follows the law, and a father cares for, rather than kills,
his own child. Crimes make news precisely because these are out of customary human behavior.
Thus, there must be hard evidence to be demonstrated in court to prove that an irregularity
occurred. The presence of reasonable doubt means there is a crack in the evidence.
There is always a chance that a father will kill his own child, of course. If there is an attempt
in the past to kill the child, or of physical violence, then there is greater probability. But even
here we cannot be conclusive, because it also does not always happen that parricide follows
physical abuse. From an offered proof, there are infinite possibilities of what could have
occurred. So we are back to our judgments based on presumptions or impressions of the most
usual or likely happening. To judge otherwise will require convincing evidence against common
experience. As to the controlling law, there is in jurisprudence a rule of deference to precedents.
In any case, the judgment can only be based on degrees of evidence, subject to appeal,
reconsideration, and new trial. It will be too presumptuous to think in terms of absolute
certainties even in a final and executory judgment.
Hume suggested that we can only make impressions on whether something is more or less
probable based on repeated experience. We should refrain from thinking in terms of causality
(cause and effect). Hume doubted even the scientific principle of cause and effect, or that there
must always be a certain cause or a certain effect. We cannot speak of certainties or necessities,
only probabilities (chances are) or improbabilities (chances are not). X does not have to follow
Y; X is only more or less likely to follow Y because of repeated experience, which is no
guarantee. There is only a connection made up by the mind because of consistent experience.
Scientific experiments are proof of what already happened and will likely happen again under
similar circumstances, but not what will always happen. The constancy of impressions
establishes this idea of coherence in our minds between X and Y. A single contrary event can
question that coherence. It produces what law will call reasonable doubt.
At the end of his life, Hume remained ultra-skeptic, and he held that the after-life is “a most
unreasonable fancy.” The place where he died in Edinburgh was renamed “St. David Street,” a
comic pun on his atheism yet conservative and saintly becoming.
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Wittgenstein on the Game of Doubt
Hume’s skepticism on the law of cause and effect and the regularity of the laws of nature was
tempered by Ludwig Wittgenstein criterion of “common sense” and “healthy human
understanding.” These are relevant in justifying what the Rules of Evidence refers to as
“conclusive presumptions” (Rule 131, Sec. 2) and matters that can be taken with judicial notice
without need of evidence (Rule 129).
For Wittgenstein, doubts and suspicions on common-sense matters are “motivated.” These are
called “hinge propositions.” The motivation for questioning basic matters indicates a certainty
more than a doubt. In debates, opponents play along the terms of “doubt” and “know” and the
exchange of language becomes a game.
Doubt on something that one has no good reason to doubt, such as whether one who has two
hands indeed has two hands, is groundless doubt. If one really has a reason to doubt, then it must
be hinged on something else he already assumes as somehow certain. One doubts because he
wants to advance a proposition he is already certain of.
In On Certainty, Wittgenstein argued: “The questions that we raise and our doubts depend
upon the fact that some propositions are exempt from doubt, are as it were like hinges on which
those turn. That is to say, it belongs to the logic of our scientific investigations that certain things
are indeed not doubted. For him, we cannot just investigate everything, and for that reason we
are forced to rest content with assumptions.” Wittgenstein explained: “If you are not certain of
any fact, you cannot be certain of the meaning of your words either. If you tried to doubt
everything you would not get as far as doubting anything. The game of doubting itself
presupposes certainty.” (On Certainty, Sec. 114-5)
Meanwhile, analytical thinking, rationalism, and the empirical method will define the
Enlightenment period and the liberal march of every man who holds reason, in the next chapter’s
discussion on political law.
CHAPTER VII CASE READINGS
BACON ON JUDICIAL ETHICS
MARIA APIAG, TERESITA CANTERO SECUROM and GLICERIO CANTERO v. JUDGE
ESMERALDO G. CANTERO
(A.M. No. MTJ-95-1070, February 12, 1997)
PANGANIBAN, J.:
Judges ought to be more learned than witty, more reverend than plausible, and more advised
than confident. Above all things, integrity is their portion and proper virtue.
The eminent Francis Bacon wrote the foregoing exhortation some 400 years ago. Today, it is
still relevant and quotable. By the nature of their functions, judges are revered as models of
integrity, wisdom, decorum, competence and propriety. Human as they are, however, magistrates
do have their own weaknesses, frailties, mistakes and even indiscretions. In the case before us,
respondent Judge Esmeraldo G. Cantero was charged administratively in the twilight of his
government service, as a result of a failed love affair that happened some 46 years ago. After an
otherwise unblemished record, he would have reached the compulsory retirement age of 70 years
on August 8, 1997 had death not intervened a few months ago on September 26, 1996.
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Notwithstanding his death, this Court still resolved to rule on this case, as it may affect his
retirement benefits.
PRESUMPTION OF COMPENSABILITY FOR WORK-RELATED ILLNESS
MANUEL ARIANZA v. WORKMEN’s COMPENSATION COMMISSION and CENTRAL
AZUCARERA DE LA CARLOTA
(G.R. No. L-43352, February 28, 1978)
MAKASIAR, J.:
It appears from the records that as of 1960 petitioner was employed in private respondent
company. Before he entered his employment he was subjected to a thorough medical
examination and was found fit to work. His duties were packing bagasse, working both on day
and night shifts for eight hours at P8.00 per day for a period of four (4) years. Subsequently, he
was assigned as a piler of bagasse and lastly, assigned as a water tender in the fire-room at the
mill department for three (3) years.
In his first and second assignments his work required strenuous physical effort and exertion.
And, in his last assignment, his body was immersed in hot water up to his waist with the upper
part of his body exposed to cold.
Petitioner noticed a general weakening of his body sometime in 1965. At first, he did not mind
his illness In April, 1972, he learned that his illness had become serious. He stopped working and
was hospitalized at the expense of respondent company. A Physician’s Report signed by Dr.
Orville Varona advised petitioner to have a complete rest. His illness was found to be liver
cirrhosis.
The sole issue in this case is the compensability of the illness of petitioner under the
Workmen’s Compensation Act. Under said Act, an employee is entitled to compensation of his
illness either cause by the nature of his employment or aggravated by it.
Petitioner’s first assignment was to pack bagasse because he was not provided with mask to
protect him from small particles of bagasse, he inhaled these particles from time to time. After
four (4) years, he was assigned as bagasse filer which required strenuous physical effort and
exertion. He had to work either on day or night shift at 8 hours each shift. As water tender at the
fire-room, his body was half immersed in hot water and the upper half was exposed to cold. All
these duties of petitioner must have adversely affected his health. The presumption of causal
connection remains unrebutted by substantial and credible evidence. Although his work might
not be the direct cause of his illness, which is liver cirrhosis, yet his working conditions must
have weakened his body resistance’ and aggravated said illness. The referee who conducted the
hearing of this claim found, and we quote:
It was established that claimant does not drink nor smoke. When he entered the service of
respondent he was subjected to a pre-employment medical check-up and was found fit for work.
After he served the respondent, however, for ten (10) years he became a sick man. The illness of
the claimant supervened in the course of employment with respondent. The Workmen’s
Compensation Act, as amended establishes a presumption of causal connection in favor of
claimant.
The Supreme Court held:
Cancer of the liver though not occupational disease may be deemed work-connected where
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there is a strong probability that working conditions have so affected employee’s health and
reduced his resistance to said disease (Maria Cristina Fertilizer Corporation v. Workmen’s
Compensation Commission, 60 SCRA p. 228).
Another case in point led the Supreme Court to hold:
When an employee dies on duty, the burden of proof to show that death was not workconnected shifts to the employer — what is not denied, and this is crucial insofar as the
compensability of Eduardo Labiyo’s death is concerned is that death came to the deceased when
he was in active duty as an engineer employee of the petitioner. This being the case, the need to
pinpoint the cause of death as work-connected, in order to render it compensable assumes very
little importance (Visayan Stevedore and Transportation Company v. Workmen’s Compensation
and Julieta Labiyo, 59 SCRA PP. 89-90).
It is presumed under Section 44 of Workmen’s Compensation Act, as amended, that where the
employee’s death supervened in the course of employment, the same either arose out of or was at
least aggravated by said employment, tulle burden of proof shifts to the employer to disconnect
the illness from the nature of employment.
It has been repeatedly held that the opinion of the company physician is not sufficient to
overcome the presumption established by law in favor of the compensability of the illness once it
is shown to have supervened in the course of employment. Dr. Jose Ferrer, in his letter addressed
to the Chief, Workmen’s Compensation Unit, dated August, 28, 1973, said:
although the cause is not clear, at least we know what do not cause it and alleged exposure to
heat and cold is not included as etiologic factors in the development of the conditions.
Respondent’s neglect to provide a mask to claimant while he was engaged in the piling and
packing of bagasee exposed the latter to dust and particles. His exposure to heat and cold may
have precipitated the aggravation of his illness. It is not required that employment be the sole
factor in the development of the illness. It is enough that the employment, in one way or another,
contributed to the development or aggravation of the illness (pp. 16-17, rec.).
Wherefore, the decision of respondent workmen’s compensation commission is hereby
reversed and set aside and private respondent Central Azucarera de la Carlota, Inc. is hereby
directed to pay the claimant x x x.
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CHAPTER VIII
POLITICAL LAW: REFORM, REVOLUTION,
AND RESISTANCE THE NEO-CLASSICAL
PHILOSOPHERS
All men are born equal, naked, without bonds.
God did not create man to be a slave;
Nor did he endow him with intelligence to have him hoodwinked,
Or adorn him with reason to have him deceived by others.
— Jose Rizal, Letter to the Young Women of Malolos
Countries today have a constitution, and with it, a bill of rights for its citizens. Not long ago,
states were not organized with charters for freedoms and duties. The term “right” is a modern
concept, brought about by libertarian revolutions and inspired by reformist philosophers who
believed in a government by consent, such as John Locke for the American Founding Fathers
and Jean Jacques Rousseau for the French philosophes.
The theories about social contract were to replace the divine rights theory that justified the
absolutism of monarchies — from the signing of the Magna Carta by King John of England, to
the Glorious Revolution in England, to the French Revolution, to the American Revolution, to
the Philippine Propaganda Movement of ilustrados who were inspired by the writings of the
Enlightenment philosophers.
The Malolos Constitution and the 1935 Philippine Constitution adopted many provisions of
the American Bill of Rights and its liberal philosophy. Our national hero, Jose Rizal, was an avid
reader of Voltaire’s critique of the French monarchy and of the privileges of the Catholic
Church, as exposed in the person of “Pilosopo Tasyo” in Rizal’s novel Noli Me Tangere.
Social Contract theorists do not explain the origin of society through the divine rights of kings
or through the Biblical account of salvation history. They believe that the fundamentals of
society were brought about by conventions and agreements, tacit or explicit, also called as the
“social contract.”
Before the social contract, there were only the natural rights of man (a take-off from natural
law for Locke), or the natural state of man, which Hobbes depicted to be nasty and barbaric, and
Rousseau impressed as pristine like a Garden of Eden. In any case, the modern State, civil
society, and civil rights were born after the social contract. Laws, including a Constitution,
written or unwritten, are expressions of this contract.
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I. MACHIAVELLI: THE BREACH AND THE PRACTICE
OF POLITICS
In all governments, there must of necessity be both the law and the sword; laws without arms
would give us not liberty, but licentiousness; and arms without laws, would produce not
subjection, but slavery. The law, therefore, should be unto the sword what the handle is to the
hatchet; it should direct the stroke and temper the force.
— Charles Caleb Colton, Lacon
In chess, the knights, the queen, the bishops, and the pawns can all make or break a king. The
same with politics, according to Niccolò di Bernardo dei Machiavelli, the classic power pundit.
The moves of a politician’s right-hand men, spouse, clergy, and people can spell checkmate. This
is true, even in the game of Philippine politics.
Machiavelli’s The Prince was written for rulers in the making in a very unstable society.
Some, like Rousseau, say that it was deliberately written on how not to rule, because following
Machiavelli’s tips will inevitably lead to dictatorship and revolution.
Machiavelli was the son of an Italian lawyer and was appointed diplomat, administrator, and
chancellor of the Florentine Republic in 15th-century Italy. After he was imprisoned and tortured
by the Medici regime, he wanted a rebellion that would restore the Republican state, supposedly
giving cause for provocation by fanning tyrannical abuses in The Prince. With this caveat in
mind, provided below are Machiavelli’s tips on how to rule, given the non-ideal conditions of
decadence and disintegration.
First, if the ruler cannot be good always, he must at least pretend. The people look at leaders as
models of virtue, and this is where the art of deception comes in. “Thus, it is well to seem
merciful, faithful, humane, sincere, religious, and also to be so,” Machiavelli said. “But you must
have a mind so disposed that when it is needful to be otherwise, you may be able to change to the
opposite qualities.”
Second, there are two ways of fighting: one by law, another by force. The first is to man, the
latter is to brutes. When dealing with brutes, the former will not work. Use the second.
Third, the leader should himself shower the favors but should delegate the punishments. This
is called the “black knight” principle. A leader, to be beloved, must himself give the merits, but
should leave it to the executioner to do the chastiser’s job.
Fourth, it is good to be both loved and feared. But if the leader has to choose, better be feared
than loved, but not be hated. Machiavelli said that nothing is stable in politics and everyone can
be a rival. So relations of friendships and love are no assurance. These only increase feelings of
indebtedness. On the other hand, when one is able to instill fear, others will follow without the
leader giving anything in return. Nevertheless, one should not be hated to the point that arouses
rebellions.
Machiavelli advised: “Men have less scruple offending one who makes himself loved than one
who makes himself feared; for love is held by a chain of obligations which, men being selfish, is
broken whenever it serves their purpose; but fear is maintained by a dread of punishment which
never fails.”
Fifth, punishments should be done all at once so that seldom felt will be less remembered. But
boons should be granted apiece that they may linger. Punishments must be swift for a “shock and
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awe” effect, but this should not be the order of the day lest people get desensitized or harbor
disgust. Cruelty, if only once in a while, will sustain fear but not hatred. Privileges, meanwhile,
must be given in proportions so that they may be better appreciated and craved. “For injuries
should be done all together, so that being less tasted, they will give less offense. Benefits should
be granted little by little, so that they may be better enjoyed,” Machiavelli suggested.
Sixth, a ruler must be shrewd and swift to match the inconsistency of the people and the
political environment. Machiavelli portrayed men as “ungrateful, fickle, false, coward, and
covetous.” The ruler must be flexible enough to adapt to social trends.
Finally, the end justifies the means. If the ruler succeeds, the people are his. If he fails, they
turn against him. Commentators explain that Machiavelli was not really justifying evil here, only
the necessary lesser evil. In fact, Machiavelli was lamented the moral degeneration of Italy as
compared to the civic virtues of the ancient Romans. The means Machiavelli referred to were the
cunning ways of the Prince, which he justified to bring about the end of an ideal Republic.
The end Machiavelli envisioned comes out in his thesis, The Discourse on the First 10 Books
of Titus Livy. In The Discourse, the hero is not a despot but the people of Ancient Rome.
Machiavelli wanted a Roman Republican government, which, on the contrary, censors tyranny
and promotes self-government and liberty. Given the ideal conditions, a republican government
can be installed. For “popular governments are still superior to those of princes,” Machiavelli
said, and “in glory and in goodness the people are far better.” He indicated this even in The
Prince, where rulers put into power by the populace make more stable government than those
raised by the elite nobility.
Machiavelli pointed that although a ruler can take advantage of religion, the contrary would
also be true: he would be at a loss without it. Machiavelli was papal adviser to Popes Leo X and
Clement VII and died receiving the sacraments. Religion is useful, he said, “in animating the
people, in keeping men good, and in shaming the wicked.”
Machiavelli advised the ruler not to take the women and property of his subjects even in The
Prince. If he is “to slay one’s fellow, betray one’s friends, act without faith, without pity, without
religion,” he may win power but not glory. But with virtue, one is “praised and admired even by
one’s enemies.”
The Christian standard of behavior is a means to securing peace. If rulers are true to Christian
principles, the states would be more united and happier. What Machiavelli did not like was
Christianity’s emphasis on humility, lowliness, and resignation, which enervated statesmen to
become soft, lacking in ambition, disarmed, and resigned from worldly manners. Like Nietzsche
after him, Machiavelli blamed the emphasis on the after-life for the fall of Rome.
In the end, one can say that Machiavelli only wanted empowered leaders who could bring
terror to the crooked, order, and rights to the people, as well as to clear the way for a strong and
virtuous Republic.
II. HOBBES ON SOVEREIGN IMMUNITY
The law should be the point at which savagery ended because civilization stood in its path.
— Ariana Franklin, Mistress of the Art of Death
It was Thomas Hobbes who argued in the Leviathan that life was originally “poor, nasty,
brutish, and short,” in a primitive state of war of every man against every man. Everyone was
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concerned only with his self-interest, just like in the wild. Might makes right.
Hobbes lived in Reformation England torn by religious wars and family feuds, which explains
this worldview. “Fear and I were born twins,” he once quipped. Hobbes’ student, Charles II, was
restored to the British throne in 1660 and Hobbes wanted to justify the persecutions of the
monarchy.
Hobbes' The Leviathan
Hobbes’ perspective pierces into an ugly reality that holds true even today, in the way we
constantly guard against each other, even from our own families. We place our valuables under
lock and key, we close our rooms always, we seal our doors and windows, we install hidden
cameras, we raise high gates and fences, and we chain dogs in our yard. Why this continuous
mistrust and suspicion of the other remain even in our own household?
For Hobbes, it is because we humans are in constant fear of theft, invasion, violence, and
death. If left to ourselves, men would live without security other than their own strength; to use
their own power as they would. In our original state, there was no industry, arts and letters, or
concept of property. Due to scarcity of goods and individual vulnerability, everything was up for
grabs and everyone can subdue anyone.
Eventually, men made alliances, decided to act collectively, and agreed to call into law
enforcers as people wanted to keep themselves safe and peaceful. Instead of taking the law into
their hands, people surrendered their original freedom to the rule of their rulers. Each individual
must already be contented with so much liberty as he would allow other men against himself.
Hobbes said: “For he that renounces or passes away his right gives not to any other man a
right which he had not before…but only stands out his way, that he may enjoy his own original
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right without hindrance from him and from another.”
Justifying Authoritarianism
The mutual transferring of natural right to the Sovereign is the social contract. Our rulers will
need such force and threat to be followed and feared by those who resist society’s covenant.
Either we have a licentious and lawless society with everyone pursuing his self-interest, or we
put our stakes to a monarch or a dictator to keep everything in perfect order. Either there is a
chaos of wills or the will of one sovereign as our law. Society is like an organization where it
will be more efficient to entrust the decision-making and enforcement to a powerful chief
executive officer. Only governments with indivisible power could prevent the disintegration of
society.
The Sovereign will either be an individual or a group of individuals. He holds power from the
people, the “commonwealth,” not for his own good, but to maximize the interest of all. This
structure runs the risk of abuse but for Hobbes, the injustices of a ruler are better than the
injustices under the state of nature. Better the abuses of one than the abuses of every one against
every one. In recompense to the rights that the people will abandon, Hobbes said, “men will be
compelled equally to the performance of their covenants, by the terror of some punishment.”
Once the people hand their sovereignty to their rulers by putting them into power, part of the
terms is to follow their rules. From this original consent, the people cannot retract.
In modern times, the Sovereign is no longer identified with a monarch but the State itself. The
doctrine of the State’s immunity from suit, as provided in Article XVI, Section 3 of the 1987
Constitution, stemmed from this view that the Sovereign is absolute and that there can be no
legal right as against the authority that makes the law on which the right depends.
III. THOMAS MORE ON REPUBLICANISM AND THE
FAMILY AS THE BASIC UNITY OF SOCIETY
What can you do to promote world peace? Go home and love your family.
— Mother Teresa, 1979 Nobel Peace Prize recipient
Sir Thomas More, the English Chancellor of King Henry VIII, while also believing in the
corrupt “fallen” nature of man, arrived at a different conclusion from Hobbes. Precisely because
man is corruptible, it will be too risky to put all sovereignty into one man’s power in perpetuity.
More was among the first to propose, in an age of supreme monarchs, that the Sovereign must be
elected by the people so that the electorate can check and terminate their rulers’ regime for
abuses.
In his writings and correspondences, More believed in Republicanism even at the time when
he was still a favorite of Henry VIII and before he was sentenced for refusing to acknowledge the
king as head of the Church of England in order to allow his divorce from his wife, Queen
Catherine. More disapproved Henry VIII’s divorce, especially since the real ground was
Catherine’s failure to give birth to a male heir.
The Familial State
In A Treatise on the Passion, More said that because of the human tendency to err, human
beings have a special need for government. The first government in the natural society is the
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family, where as free beings, we are ordered to love and care for others. It is in the family where
we learn the virtues to be exercised in a larger civil society.
In his Utopia, a large family is the basic unit of society. The young children help in the
housework, while the elderly educate the children. The whole island of Utopia itself is run like a
single family.
To prevent idlers, family time is structured. Because of the importance of the family, there are
strict regulations to prepare men and women to marriage and sexual fidelity. Those who cause
the dissolution of the family by giving ground to divorce can be investigated and forbidden to
remarry as a punishment. Divorce is allowed for adultery and sexual perversions but the guilty
party cannot remarry.
More believed in relative divorce which we call in the Philippines as “legal separation,” but
not absolute divorce that allows remarriage, especially for the guilty party. In the Philippines,
though, absolute divorce with remarriage is not allowed even for the innocent party. But More,
the Catholic patron saint of lawyers, appeared to make a distinction in Book II of Utopia: “There
was the more reason for this regulation among them (the Utopians), because they are the only
people of those parts who allow not polygamy or divorce, except in case of adultery or
insufferable perverseness. In these cases, the senate dissolveth the marriage, and granteth the
injured leave to marry again; but the guilty are made infamous and never allowed the privilege of
a second marriage.”
Further into his Latin Poems, More argued that a good ruler would be like a father to his
children, rather than a master to his subjects. This recalls the Roman standard of “pater familias”
or due care of a good father of the family. As a father, More was affectionate to his son and three
daughters and was concerned of their welfare whenever he was away for business. He believed
in the equal education of the sexes. In his poem “Twelve Properties or Conditions of the Lover,”
More outlined the devotion that comes from public service like a person in love.
For More, the Sovereign must consider the people as part of his own body. The ruler must be a
watchdog and a guardian ready for service, not a tyrant or a wolf ravaging his own flock. Since
no one is perfect, no one can be invested with unqualified and absolute authority, whether by
inheritance, election, or divine right. Everyone needs advice.
More suggested a government like the Roman Republican Senate, where the people could
consent on bestowing and withdrawing sovereignty, and leaders could involve themselves into a
free discussion on matters of the State. In Epigram 121, More wrote that “any man who has
command of many men owes his authority to those whom he commands: he ought to have
command not one instant longer than his subjects wish.”
The Rule of Law
More observed that while a king is usually mild during his first year in power, his unlimited
power eventually makes him vulnerable to pride and dismissive of others’ good opinions. Over
time, his selfishness will wear the people out. In Richard III, More wrote that “unlimited power
has a tendency to weaken good minds, even in the case of gifted men.”
Given that the people may have no choice on their current form of government, in Utopia,
More advised: “What you cannot turn to the good, you must at least make as little bad as you
can.” To correct even an absolutist government, there must be the rule of law. Law is a criterion
of justice and the substantial shield of freedom.
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While human laws are from traditions of men, they are relatively the work of prudent citizens
concerned for the common good. Although no law is perfect, lawlessness would make people
rush into every kind of crime. Laws must be respected then. If faced with unjust laws, More, like
Socrates before him, showed respectful resistance by accepting his verdict of death for treason.
His last words were: “I am the King’s good servant, but God’s first.”
To prevent the abuse of law-making, there must be few laws but more conventions and
regulations. In A Dialogue Concerning Heresies, More argued that apart from human law, there
is a natural law written in the human heart that anyone can know by reason. One can ignore this
law of conscience only for a limited time because violating one’s conscience will eventually
cause grief. Man is free to follow God according to his conscience but it is also his duty to have
an “educated conscience” — the virtuous training to seek what is good even if this will entail
labor and pain.
Although More was a staunch Catholic statesman, he did not want a State religion. He
believed in the separation of the Church and State, but not the absence of conscience or morality
in politics. The deistic notion of “natural religion,” where the citizens have at least the basic
belief in God and the immortality of the soul as discovered by reason and conscience, will suffice
in a Utopian state.
Today, many constitutions, including those of the U.S. and the Philippines, while endorsing
the separation of Church and State, acknowledge the Supreme Being and the moral principles of
truth, justice, and freedom in their constitutional preambles. Auguste Comte, in his Course on
Positive Philosophy, agreed that “the true social unit is the family” where “the principle of
subordination and mutual cooperation is exemplified.” Families become tribes and tribes become
nations. To attack the family is a symptom of social chaos.
The Republican Party in the United States, also known as the Grand Old Party (G.O.P.)
dominated by conservative Evangelicals and Catholics, continues More’s advocacies for a
representative government, the rule of law, the belief in a higher moral law, and family values at
the heart of a good government. An Oscar-winning film, A Man for All Seasons (1966), presents
the colorful life and trial of More. A statue of the saint graces the chapel of the Jesuit-run Ateneo
de Manila University-College of Law, where a law fraternity, the Fraternal Order of Utopia, was
named after More’s classic.
IV. UNLOCKING INALIENABLE RIGHTS
The law is the organization of the natural right of lawful defense. It is the substitution of a
common force for individual forces. And this common force is to do only what the individual
forces have a natural and lawful right to do: to protect persons, liberties, and properties; to
maintain the right of each, and to cause justice to reign over us all.
— Frederic Bastiat, The Law
While Hobbes emphasized the irrational in man, Locke stressed that man has reason and
conscience, which makes him a self-determining free individual. Locke was influenced by the
struggles of his Puritan parents, who escaped the religious persecution in England. His mother
died while he was still an infant, while his father died as a captain in the Parliamentary Army
when Locke was still young. Locke’s liberal philosophy inspired Thomas Jefferson and the
American revolutionaries.
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In his Second Treatise on Government (the companion book of District Attorney John Reid in
Disney’s The Lone Ranger). Locke said that in the beginning, people lived in “a state of peace,
goodwill, mutual assistance, and preservation,” and enjoyed natural rights to protect their own
life, limb, and property. Man is by nature sociable and the social contract was made to further the
common welfare, especially for others who may not be able to defend themselves. Civil
government must be created not because the natural state is a state of war, as told by Hobbes, but
for greater convenience. It will be contrary to man’s interest to make enemies of other people and
to create a state of war. In fact, men need each other and there is no benefit in offending and
harming others since one will also receive harm in return.
The rights that would not otherwise exist without the promulgation of laws brought about by
the social contract are called “civil rights,” such as the right to a trial. Civil rights should protect
and supplement “natural rights” through written laws. Civil society is needed to put up with the
inconveniences of the state of nature and for mutual preservation of lives, liberties, and estates.
These rights are natural to mankind and cannot be given away.
The American Declaration of Independence provides that it is “self-evident that all men are
created equal” and “endowed by their creator” with “unalienable rights” to “life, liberty, and the
pursuit of happiness.” This echoed Locke’s conception of the natural law: “Reason, which is that
law (of nature), teaches all mankind who will consult it that being all equal and independent, no
one ought to harm another in his life, liberty or possessions.”
For Locke, there are universal natural laws not because human beings have innate ideas or
knowledge of these since the human mind is actually a blank canvas (“tabula rasa”). Rather,
human beings happen to share the same experiences that are rationalized into universal
principles.
The People’s Trust
The social contract is a pact between free men for the public good. Law’s hold must therefore
be limited to public affairs, and beyond this, people should be free to be themselves. When a
sovereign goes against the public good and natural rights, he betrays the people’s trust and the
people have the right to disobey and revolt.
But although the trust is revocable, the social contract is not. The sovereign is simply replaced
but the communal and civil laws that preserve social order remain. Locke, hence, defended the
Glorious Revolution, also known as the Bloodless Revolution, which overthrew King James II of
England.
To obtain a balance of power, Locke, like Baron de Montesquieu, proposed that the
legislative, executive, and federative powers must be separated in a “tripartite system”
(Montesquieu proposed the Judicial, rather than the Federative, as the third branch of
government) so that no government body could be all-powerful. It is undesirable that the person
who makes laws should be the same person to decide on executing them as private interest may
factor in. Locke also espoused the separation of Church and State so that people may be free to
associate for other-worldly matters and follow their individual conscience.
Locke opted for a parliamentary form of government, majority rule, and popular
representation since sovereignty ultimately resides with the people. The express consent of the
governed must be obtained under a social contract because it is the people who know what is best
for themselves.
Sovereign power cannot be transferred to those whom the people did not entrust this power.
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This became known as the “doctrine of non-delegation.” Locke explained: “The Legislative
cannot transfer the power of making laws to any other hands. For it being but a delegated power
from the people, they, who have it, cannot pass it over to others.” He continued, “and when the
people have said, ‘We will submit to rules, and be governed by laws made by such men,’ and in
such forms, nobody else can say other men shall make laws for them.”
V. ROUSING MAN TO BE FREE
“Then I am to take it that Monsieur Tarzan would prefer to go naked into the jungle, armed
only with a jackknife, to kill the king of beasts,” laughed the other good naturedly, but with the
merest touch of sarcasm in his tone.
“And a piece of rope,” added Tarzan.
— Edgar Rice Burroughs, Tarzan of the Apes
Like Locke, Rousseau conceived man to be originally good and free in his idea of the “noble
savage.” It finds application in the doctrine of “presumption of innocence” that puts the burden
on society to prove the guilt of an accused.
Rousseau sought to reform society and is most famous for saying in his The Social Contract
that “man was born free but everywhere he is in chains.” By this he meant that man is
fundamentally good, but society can bind and condemn people in unjust ways, yet society itself
can make man free again.
Contrary to Hobbes, it is society that initially corrupts and induces man to lose his childhood
innocence and to be savage, selfish, and unhappy. Under the natural state, our only concern is
self-preservation and reproduction. Upon living in a society, we want public esteem and
reputation, and with these come vanity and contempt, shame and envy, decency and public
morality, boasting and deceit, avarice and ambition. To make a public spectacle, punishments
have to be made severe unlike when dealt with as a personal injury. With joint labor and
production of many, work has become indispensable, not an independent intercourse. To be
better off from the rest, property and power have to be accumulated, and with these come war
and the vindication of property. The more “civilized” a society is, the more destructive wars it
will engage in.
Rousseau lived in the Romantic Age that was fed up with over-rationalizations and
scientifism, and emphasized instead the value of emotions, instincts, and going “back to nature,”
like in the fictional character of Tarzan. It is said that Rousseau’s fixation on primitive childlike
virtues developed out of his infatuation with his boyhood governess, Mademoiselle Lamberciele.
Even so, Rousseau’s theories on the man-in-the wild rhyme with anthropological studies on
primitive tribal ethics, even in Philippine indigenous communities.
Rousseau believed that the natural instincts of a child are good but are eventually repressed by
society’s artificial constructions, leading to alienation, falsehood, and hypocrisy. Civilization can
corrupt a person and destroy his spontaneity and creative energy. In his Emile, Rousseau
proposed that a child be educated to cultivate, not repress, his self-expression through sympathy
and love in a familial rather than in a school environment, similar to home-schooling. Morality
must develop from natural impulses of empathy. More than an education of the intellect, there
should be an education of the senses.
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The General Will
In Rousseau’s Social Contract, each individual is considered part of the whole society, the
collective body. It is a moral body where citizens share in the sovereign power. People join
society not to abdicate their natural liberty but for improvement and sophistication. The social
contract is there to enhance man’s freedom and this is realized through democratic institutions
that allow every citizen to vote on every major decision, and where a subject of the law is also a
lawgiver.
Rousseau was writing with his small city-state of Geneva in mind, where direct voting could
be realized. Part of the freedom that a citizen surrenders is to obey the preference of the majority
once his vote is defeated.
The social contract creates a new corporate entity endowed with a “general will” as an
outcome of a democratic process. The general will should come from all to apply to all. It is
important that legislators and citizens have shared values and identity of interest. The people,
meanwhile, must be informed and publicly spirited. In a spirit of fraternity, duties are selfimposed through deliberation and election.
The general will is not the will of all or the will of the majority, but the common interest
expressed through laws. Since laws were made with the participation of the people, these are
binding to everyone. Those who are unaware or who resist the general will may thus be
compelled to act accordingly, and be “forced to be free.” For freedom is the opportunity to do
what is right, including obedience to authority as assented by one’s citizenship or membership to
a society.
VI. THE “MILL” OF HAPPINESS AND LIBERTY
Every law is an infraction of liberty.
— Jeremy Bentham, lawyer, Father of Modern Utilitarianism
John Stuart Mill, member of the English Parliament, wrote in On Liberty that “the only
purpose for which power can be rightly exercised over any member of a civilized community,
against his will, is to prevent harm to others.” This became known as the “Harm Principle.” Man
is free to pursue his happiness as long as he does not harm others. He may harm himself in the
process but not others. When he does harm others, this is the only time that law may intervene.
Otherwise, “over himself, over his body and mind, the individual is sovereign.”
Mill was a radical and a genius in his days. At age three, he was taught Greek. By eight, he
was reading philosophy, geometry, Latin, algebra, and physics. At fourteen, he was doing
chemistry, zoology, and logic. At twenty, he had a nervous breakdown for too much study. Mill
became the second husband of the feminist Harriet Taylor Mill and grandfather of the Nobellaureate, mathematician-philosopher Bertrand Russell.
Freedom of Action and Thought
Mill said that a person “cannot rightfully be compelled to do or forbear because it will be
better for him to do so, because it will make him happier, because, in the opinions of others, to
do so would be wise or even right. These are good reasons for remonstrating with him, or
reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting
him with any evil in case he does otherwise.” The contrary is involuntary servitude.
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The exceptions are when a person still needs the care or guardianship of others, and if the
person does not realize what he is about to do, like in preventing a person from crossing an
unsafe bridge that he thought is safe. A person may not also be allowed to sell himself as a slave
or to abdicate, waive, or resign his freedom. One is not free not to be free.
Freedom of action must be distinguished from freedom of thought. Whereas one’s actions can
be interfered with if a person becomes a nuisance to others, he is free to believe at his own cost
whatever he wants to believe.
In the chapter “Of Liberty of Thought and Discussion,” Mill argued for a free press, saying
that “all silencing of discussion is an assumption of infallibility.” To refuse hearing an opinion is
to assume absolute certainty of one’s own.
If the other’s opinion is actually right, people are deprived of the opportunity of exchanging
error for truth. If the opinion in writing is wrong, the people lose the clearer perception of the
truth by its collision with error. If it is part of the truth, the people lose the remainder of the truth.
Man is capable of rectifying mistakes by discussion and experience. If a subject matter has not
been fully discussed, no matter how true it is, “it will be held as a dead dogma, not a living
truth.” In a cauldron of ideas, each idea must be constantly tested against other ideas.
Freedom of thought loses its immunity from the law under circumstances when the form of
expression has become “a positive instigation to a mischievous act.” Mill cited as example the
incitement of a mob to do harm to others.
Utilitarianism
Utilitarianism is the philosophy of pursuing pleasure and avoiding pain, for “the greatest
happiness of the greatest number.” However, Mill’s version of utilitarianism, unlike Jeremy
Bentham before him, considers the kind or quality of pleasure and not just its quantity or
intensity.
In Utilitarianism, Mill explained that the pleasures of a swine are not the happiness of a man.
Humans are not supposed to be like lower animals subject to sensual indulgence, but must pursue
a happiness that satisfies the intellect. Utility must be grounded on permanent and progressive
interests and virtues of man. He proposed the application of the golden rule of Jesus of Nazareth,
which would raise the overall level of happiness.
By “right” means something that society has an obligation to protect under a general utility. In
terms of quantity, the law must prefer what gives happiness to the most; and in terms of quality,
the satisfaction of man’s higher faculties is preferable.
According to Mill, “men lose their high aspirations as they lose their intellectual tastes,
because they have not time and opportunity for indulging them; and they addict themselves to
inferior pleasures, not because they deliberately prefer them, but because they are either the only
ones to which they have access or the only ones which they are any longer capable of enjoying.”
Law should ensure the greatest good for all concerned. Temporary pain is tolerable if this will
produce more genuine pleasure in the long run. What makes the majority happy, however, must
respect what may please the minority since they also have a right to be happy. The essence of the
law is to punish those who break this right since it is fundamental for man to seek his own
happiness. The interest of all makes an equal claim for the consideration of all. The function of
law is to legislate for liberty.
Although society may actively promote, encourage, or give incentives to certain activities that
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will increase the general happiness index, it must not prohibit those that do no real harm or
which harm only those who consent to the activity. A diversified society may not always
guarantee everybody’s version of happiness but it must at least allow its pursuit. It is the person
who knows what is best for himself. If society will allow him to live in a way that makes him
fulfilled, it might enable him to achieve his potential, to discover new ways of doing things, and
to leave his mark in the world.
Being Useful
Mill claimed that once an obligation is assigned to a person, such as being a family man, a
soldier, a government official, or a debtor, he can be punished for a “breach of duty.” Mill
defined duty “as a thing which may be exacted from a person, as one exacts a debt.” Without this
exact and clear imperative duty, however, society must bear with any “constructive injury” that a
person may happenstance create in exercising his liberties, in favor of the greater good of human
freedom.
A “perfect obligation” is one with a correlative right that can be demanded by others. An
“imperfect obligation” has no corresponding right but a mere beneficence or generosity that one
is not bound to practice. Once perfect, moral, and legal obligations have been satisfied, one must
be free to pursue one’s choice of pleasures.
Today, civil society groups continue Mill’s advocacy for “the right to be let alone,” including
individualist choice, free speech, religious, racial, and political tolerance, privacy rights,
reproductive rights, and personal space. State interference should be minimal and infrequent. The
appeal to private pursuit of happiness has progressively stricken down laws that restrain private
morality and “victimless crimes” (i.e. crimes that do no harm or harm only the participants
themselves) such as consensual sexual activities like fornication, which for Mill, must be
tolerated.
VII. CIVIL DISOBEDIENCE AS A DUTY
Do you hear the people sing? Singing a song of angry men? It is the music of a people who
will not be slaves again! When the beating of your heart echoes the beating of the drums, there is
a life about to start when tomorrow comes!
— “Do you Hear the People Sing?” from the musical Les Miserables
The Philippines had experienced two peaceful “People Power” revolutions. In both cases, the
succeeding administration had been recognized to be legitimate by the Court under the 1987
Constitution, according to the principle of “civilian supremacy,” where sovereignty resides in the
people and all government authority emanates from them (Art. II, Sec. 1).
The tradition of non-violent revolutions and resistance movements, from Mohandas Gandhi to
Martin Luther King Jr. to Leo Tolstoy, draws their inspiration from Henry David Thoreau, who
advocated civil disobedience not only as a right but as a duty to pro-actively change an
oppressive system.
The feminist Emma Goldman called Thoreau as “the greatest American anarchist,” although
Thoreau himself did not advocate anarchism or the absence of government but “better
government.” He taught that government is at best “expedient” although not necessary, and thus,
people could resist and survive its absence, especially a bad government. Thoreau explained that
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he aspired for a better government not “no government,” but no government would be better than
bad government. He believed more in self-governance than political governance, and that the
government should take steps to recognize the individual’s right to govern his own affairs.
Thoreau asked in his On the Duty to Civil Disobedience: “Must the citizen, even for a moment
or in the least degree, resign his conscience to the legislator? Why has every man a conscience
then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate
respect for the law, so much as for the right.” For Thoreau, it is conscience before conformity.
Thoreau compared those who submissively follow the law to automatons and machines, who
march to the order of the ruler the way soldiers, privates, jailers, and “powder-monkeys” do.
Militarization is an example of passive, unthinking obedience to the law. Thoreau was critical of
the army who cannot exercise moral judgment of their own. For him, real progress comes from
the people, not from the government. The best thing governments can do is to let people flourish.
When Revolution is Right (and Ripe)
When does a revolution become a right? Thoreau said it is “the right to refuse allegiance to,
and to resist, the government, when its tyranny or its inefficiency are great and unendurable.” For
instance, when “oppression and robbery are organized,” when there is slavery, and when the
“country is unjustly overrun and conquered by a foreign army.”
The rule of expediency of government no longer applies when “a people, as well as the
individual, must do justice, cost what it may.” Blood may flow even from a non-violent
rebellion, but Thoreau said that blood is already flowing when the conscience is wounded.
Thoreau did not suggest rushing to revolution or resignation from office for each or any
wrong, but one has to consider the consequence of resistance and whether the law is clearly
unjust. He advised, thus: “You may consider whether the remedy will not be worse than the evil,
but if it is of such nature that it requires you to be the agent of injustice to another, then I say,
break the law. Let your life be a counter-friction to the machine. What I have to do is to see, at
any rate, that I do not lend myself to the wrong which I condemn.”
The electoral system will be useless especially if resistance comes from a minority. To cast
their votes will not have an effect, and will be like leaving their right to mercy or chance. Rather,
the minority must put all their weight to resistance such as non-payment of taxes to cut their
support for the government. Thoreau himself spent a night in jail for refusing to pay poll taxes
because of his opposition to the Mexican-American War and slavery.
Mahatma Gandhi later followed Thoreau’s way of civil disobedience or satyagraha, by
encouraging India not to pay salt taxes to the British government and that they make salt of their
own. Although Thoreau was aware of Christ’s directive to pay taxes and to “render unto Ceasar
what is Caesar’s and to God’s what is God’s,” the problem, he noted, is that unwise men do not
know which is which, and do not wish to know.
To successfully resist the government, the individual must make himself self-sufficient and
less dependent on government provisions. The person must be able to live independently, make a
new start, and discover his natural goodness. To be able to maintain this activist lifestyle,
Thoreau rejected materialism and lived modestly.
For Thoreau, real progress is the succession of governments from absolute to limited
monarchy, then from limited monarchy to democracy, then from democracy to organizing the
rights of every man from which the State derives its authority. Until this moment arrives,
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resistance and revolutions will continue.
In the next chapter, we will discuss a revolution that swept monarchies, religions, and world
superpowers under the banner of the hammer and sickle.
CHAPTER VIII CASE READINGS
PHILOSOPHICAL EVOLUTION OF DEMOCRACY
ARTURO M. TOLENTINO, ET AL. v. COMELEC
(G.R. No. 148334, January 21, 2004)
PUNO, J., dissenting:
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Evolution of Democracy from Plato to Locke to Jefferson and Contemporary United
States of America
In the ancient days, democracy was dismissed by thoughtful thinkers. Plato deprecated
democracy as rule by the masses. He warned that if all the people were allowed to rule, those of
low quality would dominate the state by mere numerical superiority. He feared that the more
numerous masses would govern with meanness and bring about a “tyranny of the majority.”
Plato predicted that democracies would be short-lived as the mob would inevitably surrender its
power to a single tyrant, and put an end to popular government. Less jaundiced than Plato was
Aristotle’s view towards democracy. Aristotle agreed that under certain conditions, the will of
the many could be equal to or even wiser than the judgment of the few. When the many governed
for the good of all, Aristotle admitted that democracy is a good form of government. But still and
all, Aristotle preferred a rule of the upper class as against the rule of the lower class. He believed
that the upper class could best govern for they represent people of the greatest refinement and
quality.
In the Middle Ages, Europe plunged when the Roman Empire perished. Europe re-emerged
from this catastrophe largely through reliance on the scientific method which ultimately ushered
the Industrial Revolution. Material success became the engine which drove the people to search
for solutions to their social, political and economic problems. Using the scythe of science and
reason, the thinkers of the time entertained an exaggerated notion of individualism. They
bannered the idea that all people were equal; no one had a greater right to rule than another.
Dynastical monarchy was taboo. As all were essentially equal, no one enjoyed the moral right
to govern another without the consent of the governed. The people therefore were the source
of legitimate legal and political authority. This theory of popular sovereignty revived an interest
in democracy in the seventeenth century. The refinements of the grant of power by the people to
the government led to the social contract theory: that is, the social contract is the act of
people exercising their sovereignty and creating a government to which they consent.
Among the great political philosophers who spurred the evolution of democratic thought was
John Locke (1632-1704). In 1688, the English revolted against the “Catholic tyranny” of James
II, causing him to flee to France. This Glorious Revolution, called such because it was almost
bloodless, put to rest the long struggle between King and Parliament in England. The revolution
reshaped the English government and ultimately brought about democracy in England.
John Locke provided the philosophical phalanx to the Glorious Revolution. For this purpose,
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he wrote his Second Treatise of Government, his work with the most political impact. In his
monumental treatise, Locke asserted that the basis of political society is a contract whereby
individuals consent to be bound by the laws of a common authority known as civil government.
The objective of this social contract is the protection of the individual’s natural rights to life,
liberty and property which are inviolable and enjoyed by them in the state of nature before the
formation of all social and political arrangements. Locke thus argues that legitimate political
power amounts to a form of trust, a contract among members of society anchored on their own
consent, and seeks to preserve their lives, liberty and property. This trust or social contract
makes government legitimate and clearly defines the functions of government as concerned,
above all, with the preservation of the rights of the governed.
Even then, Locke believed that the people should be governed by a parliament elected by
citizens who owned property. Although he argued that the people were sovereign, he submitted
that they should not rule directly. Members of parliament represent their constituents and should
vote as their constituents wanted. The government’s sole reason for being was to serve the
individual by protecting his rights and liberties. Although Locke’s ideas were liberal, they fell
short of the ideals of democracy. He spoke of a “middle-class revolution” at a time when the
British government was controlled by the aristocracy. While he claimed that all people were
equally possessed of natural rights, he advocated that political power be devolved only to
embrace the middle class by giving Parliament, which was controlled through the House of
Commons, the right to limit the monarchical power. He denied political power to the poor;
they were bereft of the right to elect members of Parliament.
Locke influenced Thomas Jefferson, the eminent statesman and philosopher of the
(American) revolution and of the first constitutional order which free men were permitted to
establish.” But although Jefferson espoused Locke’s version of the social contract and natural
law, he had respect for the common people and participatory government. Jefferson believed
that the people, including the ordinary folk, were the only competent guardians of their own
liberties, and should thus control their government. Discussing the role of the people in a
republic, Jefferson wrote to Madison from France in 1787 that “they are the only sure reliance
for the preservation of our liberties.”
The wave of liberalism from Europe notwithstanding, a much more conservative, less
democratic, and more paternalistic system of government was originally adopted in the United
States. The nation’s founders created a government in which power was much more centralized
than it had been under the Articles of Confederation and they severely restricted popular
control over the government. Many of the delegates to the Constitutional Convention of 1787
adhered to Alexander Hamilton’s view that democracy was little more than legitimized mob
rule, a constant threat to personal security, liberty and property. Thus, the framers sought to
establish a constitutional republic, in which public policy would be made by elected
representatives but individual rights were protected from the tyranny of transient majorities. With
its several elitist elements and many limitations on majority rule, the framers’ Constitution had
undemocratic strands.
The next two centuries, however, saw the further democratization of the federal
Constitution. The Bill of Rights was added to the American Constitution and since its passage,
America had gone through a series of liberalizing eras that slowly relaxed the restraints imposed
on the people by the new political order. The changing social and economic milieu mothered by
industrialization required political democratization. In 1787, property qualifications for voting
existed and suffrage was granted only to white males. At the onset of Jacksonion democracy in
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the 1830s, property requirements quickly diminished and virtually became a thing of the past by
the time of the Civil War. In 1870, the Fifteenth Amendment theoretically extended the franchise
to African-Americans, although it took another century of struggle for the Amendment to
become a reality. In 1920, the Nineteenth Amendment removed sex as a qualification for voting.
The Progressive Era also saw the Seventeenth Amendment of the Constitution to provide for
direct election of United States senators and established procedures for initiative, referendum and
recall (otherwise known as direct democracy) in many states. Poll taxes were abolished as
prerequisites for voting in federal elections through the Twenty-Fourth Amendment in 1964.
Finally, the voting age was lowered to eighteen with the ratification of the Twenty-Sixth
Amendment in 1971.
THE CONSTITUTION AS A SOCIAL CONTRACT
THE PROVINCE OF NORTH COTABATO v. THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
(G.R. Nos. 183591, 183572, 183893, and 183951, October 14, 2008)
PUNO, C.J., separate and concurring opinion:
V. The Constitution as Compact of the People
The question may be asked: In the process of negotiating peace with the MILF, why cannot
the Executive commit to do acts which are prohibited by the Constitution and seek their
ratification later by its amendment or revision?
Many philosophical perspectives have been advanced in reply to this question. Yet, no theory
has been as influential, nor has been as authoritative, as the social contract theory, articulated by
John Locke, viz:
For when any number of men have, by the consent of every individual, made a community,
they have thereby made that community one body, with a power to act as one body, which is
only by the will and determination of the majority: for that which acts any community, being
only the consent of the individuals of it, and it being necessary to that which is one body to move
one way; it is necessary the body should move that way whither the greater force carries it,
which is the consent of the majority: or else it is impossible it should act or continue one body,
one community, which the consent of every individual that united into it, agreed that it should;
and so every one is bound by that consent to be concluded by the majority. And therefore we see,
that in assemblies, empowered to act by positive laws, where no number is set by that positive
law which empowers them, the act of the majority passes for the act of the whole, and of course
determines, as having, by the law of nature and reason, the power of the whole.
The French philosopher, Jean Jacques Rosseau stressed the non-derogability of this social
contract, viz:
But the body politic or sovereign, deriving its existence only from the sanctity of the contract,
can never bind itself, even to others, in anything that derogates from the original act, such as
alienation of some portion of itself, or submission to another sovereign. To violate the act by
which it exists would be to annihilate itself; and what is nothing produces nothing.
Dean Vicente Sinco of the U.P. College of Law articulated these precepts in his seminal work,
Philippine Political Law, viz:
As adopted in our system of jurisprudence a constitution is a written instrument which serves
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as the fundamental law of the state. In theory, it is the creation of the will of the people, who are
deemed the source of all political powers. It provides for the organization of the essential
departments of government, determines and limits their powers, and prescribes guarantees to the
basic rights of the individual.
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Some authorities have also considered the constitution as a compact, an “agreement of the
people, in their individual capacities, reduced to writing, establishing and fixing certain
principles for the government of themselves.” This notion expresses the old theory of the social
contract obligatory on all parties and revocable by no one individual or group less than the
majority of the people; otherwise it will not have the attribute of law. (Emphasis supplied)
In sum, there is no power nor is there any right to violate the Constitution on the part of
any official of government. No one can claim he has a blank check to violate the
Constitution in advance and the privilege to cure the violation later through amendment of
its provisions. Respondents’ thesis of violate now, validate later makes a burlesque of the
Constitution.
HOBBES AND STATE IMMUNITY FROM SUIT
AIR TRANSPORTATION OFFICE v. SPOUSES DAVID ELISEA RAMOS
(G.R. No. 159402, February 23, 2011)
BERSAMIN, J.:
But in the case at bar it did object, and the question raised is whether the plaintiffs were bound
to yield. Some doubts have been expressed as to the source of the immunity of a sovereign power
from suit without its own permission, but the answer has been public property since before the
days of Hobbes. Leviathan, chap. 26, 2. A sovereign is exempt from suit, not because of any
formal conception or obsolete theory, but on the logical and practical ground that there can be no
legal right as against the authority that makes the law on which the right depends. “Car on peut
bien recevoir loy d’autruy, mais il est impossible par nature de se donner loy.” Bodin,
Republique, 1, chap. 8, ed. 1629, p. 132; Sir John Eliot, De Jure Maiestatis, chap. 3. Nemo suo
statuto ligatur necessitative. Baldus, De Leg. et Const. Digna Vox, 2. ed. 1496, fol. 51b, ed.
1539, fol. 61.
PHILOSOPHERS ON EMERGENCY POWERS
PROF. RANDOLF S. DAVID, ET AL. v. GLORIA MACAPAGALARROYO, ET AL.
(G.R. No. 171396, May 3, 2006)
SANDOVAL-GUTIERREZ, J.:
Doctrines of Several Political Theorists on the Power of the President in Times of
Emergency
This case brings to fore a contentious subject — the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine
of prerogative to cope with the problem of emergency. In times of danger to the nation, positive
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law enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained a prerogative
“power to act according to discretion for the public good, without the proscription of the
law and sometimes even against it.” But Locke recognized that this moral restraint might not
suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that “the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven.”
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances,
may, in certain cases, render them disastrous and make them bring about, at a time of crisis, the
ruin of the State. . .
It is wrong therefore to wish to make political institutions as strong as to render it impossible
to suspend their operation. Even Sparta allowed its law to lapse. . .
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and
suspend for a moment the sovereign authority. In such a case, there is no doubt about the general
will, and it clear that the people’s first intention is that the State shall not perish.
Rosseau did not fear the abuse of the emergency dictatorship or “supreme magistracy” as he
termed it. For him, it would more likely be cheapened by “indiscreet use.” He was unwilling to
rely upon an “appeal to heaven.” Instead, he relied upon a tenure of office of prescribed
duration to avoid perpetuation of the dictatorship.
John Stuart Mill concluded his ardent defense of representative government: “I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship.”
Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of
limited government, furnished an ironic contrast to the Lockean theory of prerogative. He
recognized and attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra-constitutional
measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if
the practice is once established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules for applying it.
Machiavelli — in contrast to Locke, Rosseau and Mill — sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with suitable
checks and controls in time of national danger. He attempted forthrightly to meet the problem of
combining a capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.
Contemporary political theorists, addressing themselves to the problem of response to
emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship. Frederick M. Watkins saw “no reason why absolutism should not be used as a
means for the defense of liberal institutions,” provided it “serves to protect established
institutions from the danger of permanent injury in a period of temporary emergency and
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is followed by a prompt return to the previous forms of political life.” He recognized the two
(2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same time
“imposing limitation upon that power.” Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a dictatorship: “The
period of dictatorship must be relatively short…Dictatorship should always be strictly
legitimate in character…Final authority to determine the need for dictatorship in any given
case must never rest with the dictator himself…” and the objective of such an emergency
dictatorship should be “strict political conservatism.”
xxx
In the final analysis, the various approaches to emergency of the above political theorists —
from Lock’s “theory of prerogative,” to Watkins’ doctrine of “constitutional dictatorship” and,
eventually, to McIlwain’s “principle of constitutionalism” — ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a sense
of political responsibility and under effective limitations and checks.
MILL ON STATE AUTHORITY AND INDIVIDUAL LIBERTY
JOSEPH EJERCITO ESTRADA v. SANDIGANBAYAN
(G.R. No. 148560, November 19, 2001)
BELLOSILLO, J.:
John Stuart Mill, in his essay On Liberty, unleashes the full fury of his pen in defense of the
rights of the individual from the vast powers of the State and the inroads of societal pressure. But
even as he draws a sacrosanct line demarcating the limits on individuality beyond which the
State cannot tread — asserting that “individual spontaneity” must be allowed to flourish with
very little regard to social interference — he veritably acknowledges that the exercise of rights
and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says —
The sole end for which mankind is warranted, individually or collectively, in interfering with
the liberty of action of any of their number, is self-protection. The only purpose for which power
can be rightfully exercised over any member of a civilized community, against his will, is to
prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-preservation.
With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the
State to formulate a system of laws that would compel obeisance to its collective wisdom and
inflict punishment for non-observance.
The movement from Mill’s individual liberalism to unsystematic collectivism wrought
changes in the social order, carrying with it a new formulation of fundamental rights and duties
more attuned to the imperatives of contemporary socio-political ideologies. In the process, the
web of rights and State impositions became tangled and obscured, enmeshed in threads of
multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision,
between the law as the expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed. It is when individual
rights are pitted against State authority that judicial conscience is put to its severest test.
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CHAPTER IX
LABOR LAW: SOCIALISM AND
COMMUNISM
Proletarier aller Länder, vereinigt euch! (Workers of the world unite!)
— Karl Marx and Friedrich Engels, The Communist Manifesto
Minimum wage pay, working hours, leave benefits, rest periods, security of tenure, collective
bargaining. These are labor rights that have become standard today, but a hundred years earlier,
it took a bloodbath to enforce labor reforms when labor unions, spreading through the masses,
from Russia to Cuba, were unified by Marx’s call.
The Philippine centavo during the American occupation. It was minted, in a capitalist era, with
the image of a blacksmith.
The Communist and Socialist insurgencies inspired by Marx, Josef Stalin, Vladimir Lenin,
Mao Tse Tung, and Fidel Castro were the populist protests to an era of imperialism and the
capitalist Industrial Revolution. With the rise of the factory ethic in the nineteenth century, the
situation of workers, including women and children, was to work for endless hours in unsafe
plants or farms in hand-to-mouth existence. Industries competed for capital with maximum
returns and minimum costs to the employer. Work was unregulated, mechanical, and slavish.
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Labor was too cheap that workers could not even afford the very products they produced.
In the Communist Manifesto, Marx wrote about this conflict of the upper bourgeoisie and
lower proletariat social classes rooted in capitalist economics. In a capitalist economy, private
ownership is unregulated, which encourages the hoarding and overproduction of goods. The
craftsman has to work like a clog in a machine to keep up with the ever growing market.
But given the inverse relation of supply and demand, the more the laborer works, the more
harvests, the more yield, the more supply available, the less value for his output which he does
not even own and has no means to own. While his labor alone creates the product and its value,
the capitalist receives the profits. The laborer receives a value less than what he creates. The
goods he creates belong to the employer. Overtime, the worker can no longer identify with his
work. He does not like to work because it becomes a forced activity just to survive that makes
the capitalist richer and more powerful. Work alienates him.
Marx explained that in earlier times, everyone is responsible for producing just what his
family needs — the basic needs of food, clothing, and shelter, within the tribal system of
common ownership over natural resources. But as societies formed, people began to specialize in
their skills, engaging in bargains and barters, and gaining control of particular trades and
ownership. A person’s job or skill also began to determine the way one lives, dresses, eats, and
socializes, creating the formation of social classes, along with its discriminations, entitlements,
and opportunities for exploitation.
Once, people valued workers for their craft, vital to the community’s survival, and workers
found personal worth in their labor. But as the bourgeoisie, who were unfamiliar with grunt
work, began to control vital trades through their position of ownership, the worker had been
reduced into a dispensable raw material, a tool for production. Personal worth had been reduced
into an exchange value so that everyone had become nothing but a paid worker. As labor became
specialized, the worker became a mere cog in the system.
This system has been perpetuated through the “superstructures” of established politics, law,
art, literature, and religion. The masses would need to align into groups and take arms to resist
the pervasive powers of these superstructures that maintain the status quo. They have no need of
the elites, since it is their labor that produces goods and services while the bourgeoisie take the
profits. Laborers have nothing to lose and everything to gain.
The rich cannot be expected to easily give up their privileges, especially through the same
legal, religious, and political system. Bargaining will not get the workers so far. It is no use to be
passive and accept one’s fate in docility. An aggressive, radical, and even violent antiestablishment gathering is needed to shake up the foundations of society and to alter the means
and cycle of production. The ruling class will be displaced to open the space for the masses.
Revolutions are inevitable in this dialectical process of “thesis” and “antithesis” of social classes,
leading to a “synthesis” of a classless society.
Mao Tse Tung, in his Report on an Investigation of the Peasant Movement in Hunan,
explained: “A revolution is not a dinner party, or writing an essay, or painting a picture, or doing
embroidery. It cannot be so refined, so leisurely and gentle, so temperate, kind, courteous,
restrained and magnanimous. A revolution is an insurrection, an act of violence by which one
class overthrows another.”
The perfect society is a return to social ownership (“Socialism”) through nationalization of
economic resources (land, raw materials, factories, industries). Lenin, in The State and
Revolution, wrote that Socialism, which is the conversion of private to public property, is just the
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first phase of Communism. In a commun, common ownership would obliterate entitlements and
difference of classes and there would eventually be no need for the State or for laws as the
people imbibe the rule that “from each according to his ability, to each according to his needs.”
Like Marx, Lenin believed that the proletariat revolution must spread to all nations,
transcending boundaries and nationalities, to finally overthrow the allied colonizers and their
capitalist economies. This dream was realized with the formation of the United Soviet Socialist
Republics.
The Red Revolution
Laws grind the poor, and rich men rule the law.
— Oliver Goldsmith, The Traveller
For Marx, man must reclaim his greatest virtues from the gods and idols of society. It is the
working man who must be dignified, exalted and glorified, and not the man in the palaces or in
the heavens. Religion is the “opium of the people” that prevents him from confronting his
miseries in exchange for an imaginary after-life that he cannot even be sure of. Marx’s influence
has seen the ouster of monarchies and the religious elites, such as the Tsars and the Orthodox
patriarchs of Russia, the Qing dynasty and the Dalai Lama of China, and the Catholic Church in
Cuba and in post-Franco Spain.
Unfortunately, the spiraling excesses of Communist revolutions, in its impatient efforts to alter
society through class liquidation, confiscation of property and farmlands, and social
reengineering, produced the greatest recorded massacres, death camps, genocides, and famines
known as the “Red Holocaust.” A combined death toll between 85 and 100 million occurred in
the former Soviet Union under Stalin, in China under Mao, and in Cambodia under the Khmer
Rouge. It is the endorsement of violence and disregard for life and property that made
Communism unappealing to otherwise Socialist sympathizers. Alexis de Tocqueville warned
against the tendency of socialism to be contemptuous of the individual, to make him a cog in the
overbearing machinery of the State.
Capitalist economies maintain that labor rights and economic reform can be achieved in a
democratic process without resorting to Communism, such as by passing Anti-Trust laws, Fair
Labor Standards acts, and entering into collective bargaining agreements. After all, the standard
“eight hours a day, five days a week” work week was popularized not by a Communist, but by an
American entrepreneur, Henry Ford, from his successful car industry. Ford made his company
competitive by making cars affordable to the masses and sharing the profits to his workers who
received double the minimum wage.
Further, the class struggle between the rich and the poor is not necessarily true in the presence
of a dominant middle class. When the population is mostly of the middle class, who are both
ruler and ruled, worker and capitalist, the thesis and anti-thesis dichotomy is blurred.
Meanwhile, socialists argue that Capitalism has inherent politico-economic flaws, such as
materialism, exploitation of the workers, private individualism, monopolies, licentious abuse of
freedoms and rights, increasing inequalities in wealth, perpetuation to power, Fascism, religious
propaganda, and lost sense of communalism and nationalism. Capitalism inevitably widens the
gap between rich and poor and eliminates any middle class.
Until the late twentieth century, a power struggle ensued between the allies of Capitalist
Britain and the United States (including its ally, the Philippines) and Communist Russia and
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China, in a “Cold War” threat of nuclear annihilation. World views have been divided into the
Socialist “Left,” the free-market “Right,” and the “Middle” welfare-state Capitalists.
Since the American period, the Philippine Commonwealth installed laws against the violent
overthrow of government, with the Communists in mind. Labor laws were passed, amid social
unrest, such as the Employer’s Liability Act in 1908, the Industrial Peace Act in 1953, and the
Labor Code of the Philippines by President Marcos in 1974. The aim of social legislation is
“social justice,” defined in the case of Calalang v. Williams (G.R. No. 47800, December 2, 1940)
as “neither communism, nor despotism, nor atomism nor anarchy, but the humanization of laws
and the equalization of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated.”
With the fall of the Soviet Union, the Communist experiment fizzled. China, under Deng
Xiaoping, reformed its economic policies to open its economy and become a rival superpower to
the U.S., by copying the Capitalist recipe and opening itself to free trade. Many elements of the
Left, incensed with the use of violence, have advocated human rights and legitimate political
parties, redefining themselves into “Democrats,” “Liberals,” or simply, “Socialists.” Even as
Communism continues to flout its defense of the rights of the masses, the worst human rights
violations are still happening in Communist regimes like North Korea.
The failure of Marxism in solving tyranny and poverty was largely due to its theory that a state
must be governed only by a single unified party that will do the central planning of economic
activities. A single party is supposedly the proof of a classless society. As it turns out, single
parties breed corruption, absolute dictatorship, and perpetuation of dynasties such as the Castros
in Cuba and the Kims in North Korea. The abolition of private ownership also kills competitive
entrepreneurial drive. A controlled economy has to float an artificial economy that ignores
globalization and market trends.
While Socialism has not won the day, neither did liberal capitalism. After the turn of the
century, the free hand of deregulation has once again brought economic crises, eventually
leading to government bail-out of banks and corporations and forcing the masses to share their
debt burden. The balanced economic formula, it is suggested, is Welfare-State Capitalism. It
favors the provision of basic services and regulation of industries but not complete
control/prohibition, or on the other hand, laissez-faire deregulation.
In the miracle economies of the South East and the Far East (Japan, South Korea),
governments have regulatory incentives to favor social welfare, public interest, conservation, and
positive economic tendencies, without manipulating the market. Worker-Control Capitalism is
also a proposed alternative, where workers, not the State, will partly own the means of
production by obtaining significant shares. Thus, making workers industrial partners in a profitdriven business.
The international community has also learned its lessons from the Cold War. There are now
160 parties to the UN’s International Covenant on Social, Economic, and Cultural Rights
committed to labor rights and Socialist reforms. The UN has a special agency, the International
Labor Organization, which promotes better labor standards.
The Philippine Constitution, unlike the U.S. Constitution, also devotes articles on social
justice, labor rights, agrarian reform, people’s organization, sectoral representation, nationalist
protection, patriotism, social welfare, and regulation of trade. Evidently, it endorses socialist
principles from the leftist delegates of the 1987 Constitutional Commission. Many party-list
groups for migrants, farmers, fisher folk, women, and employees since then have been able to
173
secure seats in Congress — a long shot and a far cry from the call to arms of the farmer-fighters
Hukbalahaps and the insurgent New People’s Army.
The anti-establishment spirit, ushered by Socialism, spawned the deconstructive critique of
patriarchal culture, Western systems and ideology, and industrialization. This led to our current
postmodern legal policies presented in the next chapter.
CHAPTER IX CASE READINGS
SOCIALISM AND LAND TENANCY
MATEO DE RAMAS v. THE COURT OF AGRARIAN RELATIONS and GERONIMO B.
RAMOS
(G.R. No. L-19555, May 29, 1964)
LABRADOR, J.:
The history of land tenancy, especially in Central Luzon, is a dark spot in the social life and
history of the people. It was among the tenants of Central Luzon that the late Pedro Abad Santos,
acting as a saviour of the tenant class, which for generations has been relegated to a life of
bondage, without hope of salvation or improvement, enunciated a form of socialism as a remedy
for the pitiful condition of the tenants of Central Luzon. It was in Central Luzon also that the
tenants forming the PKM organization of tenants and, during the war, the Hukbalahap, rose in
arms against the constituted authority as their only salvation from permanent thralldom.
According to statistics, whereas at the beginning of the century we had only 19% of the people
belonging to the tenant class, after 60 years of prevailing percentage has reached 39%. It is the
desire to improve the condition of the peasant class that must have impelled the Legislature to
adopt the provisions as a whole of the Agricultural Tenancy Act, and particularly Section 14 of
said Act.
The section in question (Sec. 14, RA No. 1199) permits a tenant who has accumulated savings
to free himself from obtaining the usurious loans for expenses needed in plowing, harrowing,
planting, and harvesting. The tenant who has accumulated savings that would enable him to buy
implements and farm animals is allowed by the provision in question to free himself from the
bondage of permanent share tenancy by a change to leasehold tenancy. The tenant who is used to
cultivating riceland cannot conceive of any form or manner in which he can invest his meager
savings other than by the purchase of farm implements and work animals. In other words, the
only avenue left to him to improve his lot is by permitting him to change his contract of tenancy
from that of share system to that of leasehold system. The increase that he receives in his share as
a consequence of the change is only 5% (under the share system the landlord receives 30% and
under leasehold he receives only 25% if the land is first class, and 20% if the land is second
class). But by the change the tenant is released from the stranglehold of the landlord, and
becomes a semi-independent farmer. The provision in question is certainly justified by the
directive contained in the Constitution to do justice to labor. By the change the laborer can
improve his lowly lot. And if it cannot be justified as an act of social justice enjoined in the
Constitution, it may be considered as an exercise of the police power of the State which tries to
improve the situation of a great percentage of the people and preserve the security of the State
against possible internal upheavals that the tenant class might be forced to create to improve their
lowly lot. The tenant uprisings in Central Luzon from 1946 to 1952 must certainly have been the
174
main cause or reason for the enactment of the Agricultural Tenancy Act in 1954 and of the
particular section in question. The desire to improve the tenant class certainly has been impelled
by the necessity of insuring the internal security of the country, a paramount aim and end
justifying the exercise of the police power.
THE HISTORY OF THE COMMUNIST PARTY OF THE PHILIPPINES
THE PEOPLE OF THE PHILIPPINES v. JOSE LAVA, ET AL.
(G.R. No. L-4974, May 16, 1969)
ZALDIVAR, J.:
Existence and activities of the CPP and HMB
We have thoroughly examined the testimonial and documentary evidence in the present cases,
and We find it conclusively proved, as did the lower court, that as of the year 1950 when
elements of the police and armed forces of the Government arrested the defendants in these five
cases there was already a nationwide organization of the Communist Party of the Philippines
(CPP), and that said party had a well-organized plan to overthrow the Philippine Government by
armed struggle and to establish in the Philippines a communist form of government similar to
that of Soviet Russia and Red China. The Communist Party of the Philippines had as its military
arm the organization known as the “Hukbong Mapagpalaya ng Bayan” (HMB), otherwise or
formerly known as the Hukbalahaps (Huks). It is established that the rebellious activities of the
HMB, and the commission of common crimes in different parts of the country by the HMB, were
directed by the Communist Party of the Philippines through its Politburo (PB) and/or Secretariat
(SEC). The Politburo and/ or the Secretariat gave orders to the field through its general
headquarters (GHQ) and its regional commands (RECOS), and reports to the Politburo and/or
Secretariat were made regarding the activities of the HMB, giving accounts of the sorties or
ambushes and attacks against elements of the police, the Philippine Constabulary and the army,
and of killings, lootings and destruction’s of property. It is also established that the plan of the
Communist Party was not only to overthrow the Philippine Government but also to kill officials
of the Government and private individuals who refused to cooperate with the rebels, and orders
to this effect were transmitted to the HMB.
xxx
The Communist Party of the Philippines has a flag, colored red, with the symbols of the
hammer and the sickle (Exhibit A), and a newspaper organ called “TITIS.” In the general plan to
indoctrinate the masses into communistic ideas and principles, communist schools — some of
them called “Stalin University” — were set up in a number of places in the mountain fastnesses,
where trained instructors gave lectures and taught lessons in the principles of Karl Marx,
Frederich Engels, Joseph Stalin and Nicolai Lenin.
As has been stated, the CPP has an armed force, which is the HMB. The predecessor of the
HMB was the Hukbalahap, an organization created by the party during the Japanese occupation
to resist the Japanese forces. Upon liberation of the Philippines, the members of the Hukbalahap
continued their activities, the organization was renamed HMB, and its members were
indoctrinated in communistic principles. The members of the HMB are known as “Huks.”
COMMUNIST ADVOCACY NOT A CONSPIRACY TO REBELLION
THE PEOPLE OF THE PHILIPPINES v. AMADO V. HERNANDEZ, ET AL.
175
(G.R. No. L-6025, May 30, 1964)
LABRADOR, J.:
The question that next comes up for resolution is: Does his or anyone’s membership in the
Communist Party per se render Hernandez or any Communist guilty of conspiracy to commit
rebellion under the provisions of Article 136 of the Revised Penal Code? The pertinent provision
reads:
ART. 136. Conspiracy and proposal to commit rebellion or insurrection. — The conspiracy
and proposal to commit rebellion or insurrection shall be punished, respectively, by prision
correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and by
prision correccional in its medium period and a fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not to be considered as
a criminal act of conspiracy unless transformed or converted into an advocacy of action. In the
very nature of things, mere advocacy of a theory or principle is insufficient unless the communist
advocates action, immediate and positive, the actual agreement to start an uprising or rebellion or
an agreement forged to use force and violence in an uprising of the working class to overthrow
constituted authority and seize the reins of Government itself. Unless action is actually advocated
or intended or contemplated, the Communist is a mere theorist, merely holding belief in the
supremacy of the proletariat a Communist does not yet advocate the seizing of the reins of
Government by it. As a theorist the Communist is not yet actually considered as engaging in the
criminal field subject to punishment. Only when the Communist advocates action and actual
uprising, war or otherwise, does he become guilty of conspiracy to commit rebellion. Borrowing
the language of the Supreme Court of the United States:
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on
conduct can only be justified by reference to the relationship of that status or conduct to other
concededly criminal activity (here advocacy of violent overthrow), that relationship must be
sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under
the Due Process Clause of the Fifth Amendment. Membership, without more, in an organization
engaged in illegal advocacy, it is now said, has not heretofore been recognized by this Court to
be such a relationship. . . .
What must be met, then, is the argument that membership, even when accompanied by the
elements of knowledge and specific intent, affords an insufficient quantum of participation in the
organization’s alleged criminal activity, that is, an insufficiently significant form of aid and
encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be
recognized that a person who merely becomes a member of an illegal organization, by that “act”
alone need be doing nothing more than signifying his assent to its purposes and activities on one
hand, and providing, on the other, only the sort of moral encouragement which comes from the
knowledge that others believe in what the organization is doing. It may indeed be argued that
such assent and encouragement do fall short of the concrete, practical impetus given to a criminal
enterprise which is lent for instance by a commitment on the part of the conspirator to act in
furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his
approval of a criminal enterprise by the very fact of his membership without thereby necessarily
committing himself to further it by any act or course of conduct whatever. (Scales v. United
States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the propagation of
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improvement of conditions of labor through his organization, the CLO. While the CLO of which
he is the founder and active president, has communistic tendencies, its activity refers to the
strengthening of the unity and cooperation between labor elements and preparing them for
struggle; they are not yet indoctrinated in the need of an actual war with or against Capitalism.
The appellant was a politician and a labor leader and it is not unreasonable to suspect that his
labor activities especially in connection with the CLO and other trade unions, were impelled and
fostered by the desire to secure the labor vote to support his political ambitions. It is doubtful
whether his desire to foster the labor union of which he was the head was impelled by an actual
desire to advance the cause of Communism, not merely to advance his political aspirations.
Insofar as the appellant’s alleged activities as a Communist are concerned, We have not found,
nor has any particular act on his part been pointed to Us, which would indicate that he had
advocated action or the use of force in securing the ends of Communism. True it is, he had
friends among the leaders of the Communist Party, and especially the heads of the rebellion, but
this notwithstanding, evidence is wanting to show that he ever attended their meetings, or
collaborated and conspired with said leaders in planning and encouraging the acts of rebellion, or
advancing the cause thereof. Insofar as the furnishing of the mimeograph machine and clothes is
concerned, it appears that he acted merely as an intermediary, who passed said machine and
clothes on to others. It does not appear that he himself furnished funds or material help of his
own to the members of the rebellion or to the forces of the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in spite of the apparent desire
of the chief of the rebellion, is clear proof of his non-participation in the conspiracy to engage in
or to foster the rebellion or the uprising.
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CHAPTER X
EVERYONE “IN”: POSTMODERNISM AND
THE FUTURE OF LAW
For time and the world do not stand still. Change is the law of life.
And those who look only to the past or the present are certain to miss the future.
— John F. Kennedy, 35th U.S. President, lawyer, Address in the Assembly Hall of
Paulskirche
In a more globalized, multicultural, and diverse society, we can see how laws have been
reformed to adapt to the times and to accommodate once marginalized groups. From exclusion to
inclusion. The trend of law, it appears, is to get everyone feel they belong to society, and to
empower all citizens regardless of status in the name of “equality.”
The “Women of Malolos,” a mural at the Casa Real Shrine
The law is now more “open” and we shall see more laws being passed to promote the rights of
outliers and outcasts, including peasant workers, women, single parents, homosexuals, prisoners,
disabled persons, unborn children, senior citizens, immigrants, and minorities. The 1987
Philippine Constitution, for instance, is unique in providing articles and chapters for
marginalized sectors. Current legislation and court rulings reflect this policy.
“Postmodernism” stresses relativism and respect for opinions, values, expressions, chance,
difference, and change, in contrast with “modernism” that emphasizes universalism, uniformity,
purpose, form, hierarchy, categories, structure, and order.
178
Postmodernism was in reaction to the militarism and absolutisms of the modern era that led to
two World Wars and the threat of another, with the uncompromising doctrines of metanarrative
“isms”: Communism, Capitalism, Naziism, Fascism, racism, and religious fundamentalism.
The Darwinist modernist ideal of an evolved supreme creature was the “white male
Caucasian” or the “Aryan race,” where “lesser evolved” humans would have to be exterminated
so they do not perpetuate. This was precisely what the Nazis believed in incinerating the Jews,
the homosexuals, the disabled, and people of other races. Those who had seen the horrors of
social Darwinism have embraced the postmodernism that is open to all people of the human race.
Postmodernism accentuates each person’s unique value. There is no point in sacrificing lives for
the sake of aggrandized ideologies and beliefs.
Critics of postmodernism, such as Jose Ortega y Gasset, say that in erasing tradition, religion,
political institutions, and humanist ideals, we are left with pseudo-intellectuals who have no
moral code, and rising masses with no sense of direction and purpose. Benedict XVI dismissed
postmodernism as the “tyranny of relativism,” where no truth becomes the absolute truth.
I. FEMINISM, SO SHE SAYS
The Hand that Rocks the Cradle is the Hand that Rules the World
— Poem by William Ross Wallace
The twentieth century is referred to as “the century of women.” For a span of a hundred years,
women have been able to secure equal rights to vote, to work, to have a domestic and private life,
and to run for the highest offices in government in a way unimagined or stalled for thousands of
years. In the Philippines, Rizal raised the seeds of feminism in 1889 in his Letter to the Young
Women of Malolos, where he encouraged women to renounce religious superstition for
themselves and their children and to be educated in the sciences.
Yet feminism itself is not a monolithic sisterhood. There are different kinds of feminism that
have been divided into “three waves” of feminist struggles. Incidentally, the feminist work of
Plato was titled “The Three Waves,” where he argued that if we expect women to take their full
share in society, we must teach and train them the same things as we do men. Plato said that the
main difference of man and woman is simply the function of reproduction, which is irrelevant in
assigning occupations; and if child rearing be a hindrance, we might as well abolish the family.
First-Wave Feminism
A Vindication of the Rights of Woman, written in 1792 by Mary Wollstonecraft, is considered
to be the first feminist manifesto. The essay was directed to a French diplomat as the new French
constitution being drafted excluded women from free education. “My main argument is based on
this principle,” Wollstonecraft wrote in her dedication, “that if she (woman) be not prepared by
education to become the companion of man, she will stop the progress of knowledge and virtue;
for truth must be common to all.” Wollstonecraft argued that “subordination, inferiority, and
inequality will ruin the formation of virtuous wives and mothers, ‘who must grow more perfect
when emancipated.’”
Wollstonecraft’s theories were based on her experience as a woman during France’s Reign of
Terror, of becoming a mistress, bearing a child out of wedlock, being deserted by the father,
being suicidal thereafter, being a wife to a loving husband, and a mother who would die giving
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birth to the future writer of Frankenstein, the poet Percy B. Shelley.
From her childhood, Wollstonecraft experienced the imbalance of power between man and
woman as her abusive alcoholic father, who was a bitter farmer, would often beat her mother.
Wollstonecraft would shield her by taking the blows. When Wollstonecraft became a
schoolteacher and headmistress in London, she observed how women were being trained to a
subordinate mindset even if they were equally gifted as men.
From her experiences, Wollstonecraft learned the value of women being independent and selfsufficient. She lamented that while men were entitled to various employments, women were
confined to be enslaved to the power and sensuality of men. While she acknowledged that men
are physically stronger than women, she said that society should evolve from its cavemen ethics:
“It is time to effect a revolution in female manners — time to restore to them their lost dignity —
and make them, as a part of the human species, labor by reforming themselves to reform the
world.”
By the early twentieth century, first-wave feminism or the “suffragettes” gained ground for
political (to vote and to be voted), domestic, and labor equality. The movement was inspired by
Mill’s The Subjection of Women, which called for universal suffrage and equal rights. The first
feminists were the “temperance” and “abolitionist movements” who called for the prohibition of
liquor, gambling, and prostitution during the Roaring ‘20s to stop the spread of sexual disease,
the philandering of husbands, women trafficking, the breakdown of families, and general moral
decay.
First-wave feminists saw women as morally superior to men and are thus needed for a cleaner
politics. They also fought for property and custody rights and rights of women of color, and had
become popular with the middle class for defending family values. “Maternalism” was another
term for early feminism, which exalts a woman’s capacity to care and nurture, and to advocate
for child and maternal welfare, including maternal leave benefits. Among the famous suffragettes
were Susan B. Anthony, Alice Paul, and Elizabeth Cady Stanton, whose viewpoints have been
revived by “pro-life feminism.”
Second-Wave Feminism
Second-wave feminism, or “Women’s Lib,” or “pro-choice feminism” began in the 1960s and
continued into the ‘80s with the onset of the sexual revolution and Anti-War protests. Feminists
collaborated with the Left and rehashed the movement into a “class struggle” against men and
patriarchal laws.
Second-wave feminists believe that while we are born into a “sex,” which is a biological
given, “gender,” “sexuality” and “sexual orientation” are cultural and can be reconstructed where
ultimately, there are no essential difference between women and men. Second wave feminists
emphasized social equality and reproductive autonomy through the right to “free love.”
These feminists began to question the need for men, marriage, and family, rallying for divorce
and lesbian households; and resisted the reproductive role by encouraging access to
contraception, sterilization, and even abortion, so women can choose to be completely free of
motherhood. They parodied beauty pageants that reduce women into objects of male fantasy, and
objected to in-vitro fertilization and surrogate motherhood that reduce women into egg and
womb donors. They are also against pornography where men are portrayed as dominant and
women become mere sperm receptors. Among the famous left-wing pro-choice feminists were
Simone de Beauvoir, Emma Goldman, Kate Millet, and Betty Freidan.
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De Beauvoir was raised by a strict bourgeoisie Catholic mother, and the social restrictions
made her renounce her faith and its traditional notions of marriage and child-bearing. She had an
“open relationship” (non-exclusive romance) with fellow existentialist Jean Paul Sartre for 51
years in her belief for freedom of choice. She confessed having an abortion in the Manifesto of
the 343 and campaigned that women should have “safe abortions” in clinics rather than die from
the procedure in back alleys.
Earlier in the Second Sex, De Beauvoir wrote about her abortion experience as a difficult
choice: “Men tend to take abortion lightly; they regard it as one of the numerous hazards
imposed on women by malignant nature, but fail to realize fully the values involved. The woman
who has recourse to abortion is disowning feminine values, her values.” De Beauvoir was
suggesting that in a class struggle, a woman should leave all traces of the “feminine” and should
be ready to accept so-called “masculine” values by thinking, acting, and working like men.
De Beauvoir realized that after an abortion, women “learn to believe no longer in what men
say… The one thing they are sure of is this rifled and bleeding womb, these shreds of crimson
life, this child that is not there. It is at her first abortion that a woman begins to ‘know.’ For many
women the world will never be the same.”
Meanwhile, Betty Friedan’s The Feminine Mystique points out that women must resist
expectations of “femininity” that trap them to passive domestic roles, similar to helpmates or
caregivers.
A full-blown assault on sexual stereotypes was made by Kate Millet in the Sexual Politics. She
wrote a thesis that the objectification of women is perpetuated by the patriarchal institutions of
marriage and conceptions of love and romance, claiming that “all historical civilizations are
patriarchies: their ideology is male supremacy.” The economy, education, politics, law, religion,
the family, and the sciences, all dominated by men, have perpetuated the gender bias. Millet
inspired feminist critical theories that condemn law, which, being based on precedents, reinforce
the male-oriented status quo. The task of women is to come up with laws not based on
precedents.
Critics of second wave feminism say that it brought death to male chivalry and commitment to
family since women are now expected to deal alone with their pregnancies, exercise their
reproductive rights, and earn their keep without a man in the family.
The effect, according to Sidney Callahan, is that women lost the assurances of a marital
partnership. She noted that it is a biological fact that men are always reproductively able, but
women are not. Women’s bodies bear more the effects of sexually transmitted diseases,
pregnancy, contraception, and abortion than their male partners. Marriage is supposed to be a
security for men to stay as partners even if their wives are no longer reproductively and
physically attractive and to help raise the children and grandchildren. Second wave feminism did
not make men any more responsible; it devalued marriage and freed men from marital
accountability and commitment, while adding traditionally male responsibilities to women. It did
not erase traditional responsibilities, but made them ambiguous.
Third-Wave Feminism
The third phase of feminism began in the ‘90s. It emphasizes female empowerment or “girlpower feminism.” It dropped the “man-hate,” “male v. female” rhetoric that women are victims;
and in turn, celebrates female culture, girl style, celebrity women, female sexuality, female
social/cyber networking, and unique female experiences of pregnancy and motherhood.
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Whereas second-wave feminists maintain that there is no essential difference between the
sexes (egalitarian feminism), third-wave feminists value, rather than problematize, differences
and diversity among sexes and among women themselves (difference feminism). Differences are
turned into sources of identity.
Third-wave feminism recognizes scientific studies that point to fundamental biological,
psychological, and emotional differences between men and women. Men and women have
different needs. Feminism must not turn its face from women by ignoring that they have femalespecific needs.
Callahan wrote in Abortion and the Sexual Agenda: “A culturally dominant demand for
monogamy, self-control, and emotionally bonded and committed sex works well for women in
every stage of their sexual life cycles. When love, chastity, fidelity, and commitment for better or
worse are the ascendant cultural prerequisites for sexual functioning, young girls and women
expect protection from rape and seduction, adult women justifiably demand male support in child
rearing, and older women are more protected from abandonment as their biological attractions
wane.”
Among the proponents of third wave feminism are Camille Paglia, who said that although
women support gender equality, young women now reject the old feminist rhetoric because of its
victimization status (victim feminism). Rene Densfield also argued that women are not attracted
to radical feminism because the vast majority of women aspire to raise a family.
Meanwhile, Julia Kristeva said that feminism risks developing an ongoing game of power
struggle with male dominance by adopting the same “power principle.” In A New Type of
Intellectual: The Dissident, Kristeva suggested that “real female innovation (in whatever field)
will only come about when maternity, female creation and the link between them are better
understood.” Since we all began as babies in wombs, Kristeva suggested that we should consider
the maternal body as “the law before the Law.”
In the Philippines, the 2011 CNN Hero of the Year Robin Lim stressed mothers’ special needs
by promoting breastfeeding, postpartum health care, safe motherhood, fertility awareness, and
natural birth spacing. In After the Baby’s Birth, she wrote: “I believe that we women are pregnant
the first time, for nine months, and that we are postpartum for the rest of our lives. This is good
news, for what we learn becoming mothers is etched upon our hearts, souls, and bodies forever.
The hormone oxytocin, which makes it possible for [women] to conceive, give birth, and
breastfeed children, is the hormone of love.”
Some second-wave feminists are tuning to third-wave voice, including Germaine Greer who is
described as the “feminism diva.” Greer divorced her husband three weeks after their marriage
and supported sexual liberation in her The Female Eunuch back in 1970. Thirty years after in The
Whole Woman, she wrote that “liberation struggles are not about assimilation, but about asserting
difference, endowing that difference with dignity and prestige, and insisting on it as a condition
of self-definition and self-determination.” Greer recanted that “this sequel to The Female Eunuch
is the book I said I would never write.”
On a chapter on sex, she observed that “the constant pressure to be sexually active, which has
replaced the old pressure to reproduce, actually places unmated women in jeopardy, and fills
them with anxiety and the sense of failure. It is the greater pity then that so many feminists
accept and perpetuate the notion that people who are not sexually active are of no account. So let
this feminist say it again: ‘No sex is better than bad sex.’”
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Rights of Mother and Child
On Roe v. Wade, which legalized abortion in the U.S., Greer noted that what women gained
was the “right” of others to subject them to invasive procedures and abortive pills in order to
terminate unwanted pregnancies much for general convenience — “unwanted not just by them
but by their parents, their sexual partners, the governments who would not support mothers, the
employers who would not employ mothers, the landlords who would not accept tenants with
children, the schools that would not accept students with children.”
Women end up lacking genuine choices and alternatives to abortion. Greer concluded: “If we
ask ourselves whether we would have any hope of imposing upon men the duty to protect
women’s fertility and their health, and avoid the abortions that occur in their uncounted millions
every day, we will see in a blinding light how unfree women are.” Greer identified that Norma
McCorvey, the “Jane Roe” in Roe v. Wade, regretted being part of the abortion case and is now a
“pro-life” advocate.
Feminism is entering a new phase of securing the rights of women in the womb against sexselective abortion and for pre-natal health care for both the mother and her unborn child. The
question of abortion vis-à-vis women’s and fetal rights has been addressed in the international
level.
The UN Cairo Conference on Population and Development provides that “in no case should
abortion be promoted as a method of family planning,” that states must “reduce the recourse to
abortion;” and that “all attempts should be made to eliminate the need for abortion” (8.25). The
Beijing Conference on Women echoes the same but calls on governments not to be punitive on
women who had abortions but to “better address the determinants and consequences of induced
abortion, including its effects on subsequent fertility, reproductive and mental health” (109[i]).
Preamble 9 of the Convention of the Rights of the Child and Article 2 of the International
Conference on the Family provide that “the child needs special safeguards and care, including
appropriate legal protection. . .before as well as after birth.”
As an exception, abortion is to be made safe and legal in those circumstances when pregnancy
is fatal to both mother and child, such as in the case of an anencephalic pregnancy of a raped
minor in KL v. Peru, decided by the Human Rights Committee. In the European Union, the cases
of Bruggemann and Scheuten v. Germany and ABC v. Ireland, decided by the European Court,
held that a woman’s right to privacy is not absolute, since when she is pregnant, her life becomes
intimately connected with that of the fetus, justifying restrictions on abortion. The question of
when does life begin is touched in the EU’s patenting case of Oliver Brustle v. Greenpeace,
where it is said that fertilization and its similar phase in artificial cloning commences the
conception of a human being, and from thereon, a human organism is non-patentable. The
possession of a distinct set of human genes marks an organism as a member of the human
species.
The Philippine Constitution similarly provides that the State shall “equally protect the life of
the mother and the life of the unborn from conception.” (Art.II, Sec. XII). It also “recognizes the
role of women in nation-building” and guarantees “the fundamental equality before the law of
women and men.” (Sec. XIV).
Many laws have been passed to implement the State’s commitments in the Constitution and to
the UN Committee on the Elimination of All Forms of Discrimination Against Women
(CEDAW), including the Women in Development and Nation Building Act of 1992, the AntiRape Law of 1997, the Anti-Violence Against Women and their Children Act of 2004, the Solo
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Parents’ Welfare Act of 2000, the Magna Carta of Women in 2009, and the controversial
Responsible Parenthood and Reproductive Health Act of 2012.
Feminist methods of legal critique include the “woman question,” which probes on the gender
implications of the law by taking into account the point of view of women on sensitive issues
usually trivialized by men.
For instance, for a man, an office pass may be approved as consensual sex; for a woman, it is
harassment. For a man, sex after a date is expected; for a woman, it can be a date rape. For a
man, sex is at any time demandable from one’s wife; for a woman, this can be marital rape. For a
man, physical assault is a natural aftermath of a fight; for a woman, it is domestic violence. For a
man, impregnation is a prerogative, for a woman, it is a choice. For a man, oral or anal sex is
enjoyable; for a woman, it may be distasteful, unhygienic, or perverse. For a man, pornography
is entertainment; for a woman, it is virtual adultery.
Of course, the woman question itself can revitalize stereotypes and must be based on actual
perceptions. Another method is “consciousness raising,” where women are encouraged to come
out and share their experiences publicly to attract public attention and to challenge dominant
versions of social reality. Testimonies of victims of abuse and stories of hope and redemption
can empower women and transform views, more than do arguments and debates.
II. FOUCAULT ON “OTHER”
Where the laws will own me and protect me, that shall be my country, and its laws I will obey.
But if any man tries to stop me, let him take care, for I am desperate. I’ll fight for my liberty to
the last breath I breathe. You say your fathers did it; if it was right for them, it is right for me!
— Harriet Beecher Stowe, Uncle Tom’s Cabin
The French philosopher and social theorist Michel Foucault examined how each generation
produces its own “truths” of who should be excluded and how, which he called “othering.”
Society’s “others” are people who do not conform. Society considers them “abnormal.” They
have no place before the accepted science or the law.
But the shifting criteria and sources of normality are proof that man, as we judge him or her, is
just the product of the deployment of power. Institutions and individuals, not just the State,
diffuse systematizations of power. Foucault, like many postmodernists, was against the
modernist concept that strictly tabulates human beings and human experience into specific
normative types and species; into straitjacket categories, labeling, and classifications.
The implication in the legal and justice process is that the law should refrain from branding
human subjects the way we do with things and elemental species, and always to question the
basis and need for classification since human subjects and society itself undergo shifting states of
being. Classification registers people into categories, and problematizes or marginalizes
whatever it excludes.
Othering is a means to discriminate, and totalizes certain conditions, circumstances and acts to
delineate a person as “insane,” “ill,” “criminal,” “pervert,” etc. The way we catalogue others is
eventually accepted, internalized, realized, institutionalized, and lived by the Other, perpetuating
the process. How the law or science puts others into a box can then become their very prisons.
To prove his point, Foucault ventured from the ancient times to the present for psychologists,
sexologists, law enforcers, and physicians to realize that definitions and prognoses of illnesses
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and deviances are never permanent and yet we take for granted this fact. They are relative on
what institutions declare them to be, the current state of “science,” or how society has been
organized. Foucault wanted us to question the very science or law that we use as basis for
differentiation of human beings; that we should take a grain of salt in accepting their absolute
pronouncements of who and how we are.
In the Philippines, an international expert in Foucauldian thought, Fr. Luis David, SJ of
Boston University, trailblazes Foucault’s legal philosophy in the Ateneo de Manila Law School
and in Catholic institutions of learning.
Civilization Makes Mad Hatters
In Madness and Civilization, Foucault, who was himself a psychologist and once placed in an
asylum, wrote how psychology, in its attempt to define types of insanity, disorders, and
deviances, has resorted to experimentations, mapping, and conditioning of human beings, then
declaring its findings as “science,” and thereafter institutionalizing whoever it has just defined as
“mentally ill.” Yet, psychology itself keeps on changing its theories and standards of what is
“normal.” Madness and moments of insanity could be spontaneous, situational, natural, and an
expression of the irrational side of us. Integration, rather than alienation, should be the proper
response.
Madness was in fact, during ancient times, considered a gift, associated with mysticism and
mediums. The Greek tragedies were faithful to acknowledging both the rational and irrational
side of humanity, especially in trying times. During the Medieval Ages, mad people had a social
function of providing comic relief and were given their own feast, the Feast of Fools (April
Fools’ Day).
It was during the so-called Enlightenment era — when people were expected to be always
rationally and scientifically “enlightened” — that mad people had to be put into asylums or
madhouses to keep them locked for study and scrutiny. And yet, many of these unappreciated
“lunatics” had been the visionaries, creative artists, and social activists of history; or simply,
people who march to the beat of a different drum.
Similarly, in the Birth of the Clinic, Foucault, who belonged to a family of surgeons, discussed
how physicians exercise the “medical gaze” over the patient, in which they medicalize an
otherwise healthy condition into an illness or an abnormality, and thereafter prescribe various
medications, surgeries, and endless check-ups. Yet medications themselves can aggravate or
create new illnesses. Medical methods do fail. The medical gaze can in fact make a person feel
sick and obsessed with illness and death, shifting the patients’ attention from a state of wellbeing to malady.
Foucault here invited us to reflect on the amount of faith we give to the sciences. The power
we give to psychologists and physicians can create relations of dependency and helplessness, to
unquestionably surrendering our very lives and rules to every prescription made. We can apply
this in the Philippine setting, where judges sometimes rely too much on the findings of
psychologists in determining the nullity of marriages or the guilt of the accused, as if
surrendering the decision-making power to the psychologist himself. Science stands on varying
theories, studies, technologies, and tests to even have a final say in sentencing us as insane, ill,
incapable, or depraved.
The Prison Makes the Criminal
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In the Birth of the Prison, Foucault noted how penology moved from systems of torture and
inquisition to guillotines and prison cells based on technologies in criminology. A free man will
find himself behind bars because the law has defined him to be lawless. How he will be treated
will depend on the available and accepted correctional system.
Majority of the prison population are indigents who cannot afford a bail, a good lawyer, or a
considerate jury or judge. Unlike the bourgeoisie who have the benefit of high culture and
sustenance, many prisoners are socially disadvantaged and marred with the extremities of life to
begin with. Many are family breadwinners, whose incarceration punishes as well their dependent
children and spouses, pushing the whole family further to marginalization.
The prison itself produces and perpetuates criminal behavior because people institutionalized
get used to being treated in inhumane ways and to prison culture. Since they have to associate
with other criminals, criminal experience becomes the new normal. Incarceration does not
rehabilitate citizens but creates more skilled hardened criminals.
Furthermore, disciplinary centers have employed the panoptic system of permanent and
constant observation (such as through hidden cameras now) that do not allow for privacy and
personal space. Criminal examination and investigation have been used to situate individuals in a
“field of documentation,” turning the individual into a permanent “case” for future reference. An
individual suddenly bears the indelible mark of a criminal for a single act he committed or has
been accused of committing. He bears the badge that prevents him from ever reintegrating into
society and living a normal life. In many ways, it is the prison that indelibly makes a criminal.
Engendering the Homosexual Class
Finally, in the History of Sexuality, Foucault criticizes sexologists for inventing categories of
“perversions” and sexual labeling that ushered modern identity problems. He claimed that the
Enlightenment period gave birth to classifications like “homosexual” and “heterosexual,”
whereas there were no equivalent terms before. While there were proscriptions for effeminacy
(being soft), male prostitution, and for same-sex acts (sodomy) in the past, people were not
categorized into “gay” or “straight” because sexual orientation was considered fluid and sexual
desires changed. Sexual preference was not a question of one’s personality in the pre-modern
period. Until recently, people were not identified according to their sexual taste.
Under the “queer theory” of postmodernists like Foucault, sexuality is likened into a pendulum
that can swing from one end to another, in varying intensities and diversities, where extremes of
pure opposite-sex or same-sex attractions are rare. Kinsey and Freud called it as the “bisexual
normative,” where people have a basic attraction to both sexes, or that one’s sexuality can vary
according to one’s environment, experience, exposure, and fantasies. Foucault, however, did not
adopt the term “bisexuality” since this implies that there must be two opposing binaries (hetero
v. homo). Queer theorists question the pretense of those who deny experiences of attraction with
both the same and the opposite sex, or who are rigid with what it means to be masculine or
feminine.
In the classical Greek period, Foucault noted how alpha males fathered children and kept
wives while also having male lovers, who were usually their companions in battle, such as
Achilles and Patroclus, Alexander and Hephaistion, and the Spartans. Generally however, the
attraction between men was not necessarily sexual but can be intellectual/pedagogical or a rite of
passage called “pederasty.” An example was Socrates who resisted the seduction of his
handsome student and wrestling mate Alcibiades in Plato’s Symposium. The ancient philosophers
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debated on who is a better lover — a male or a female — because they appreciated and get
enamored with both sexes. There were different rules of courting a girl and a boy. In both
instances, sex must be evaded lest the lover already gets his prize.
The Roman Stoics, however, popularized the monogamous male-female and procreative
setting, which was about increasing the intensity of love, pleasure (erotics), and family life
(economics), in a healthy regimen (dietetics). Women were better appreciated and eventually had
been considered as men’s rightful complement and equal, by nature’s design. The Roman
Christian Church joined and intensified the movement and preserved this late Roman ideal.
In the Medieval Age, sodomy was a sin, but sodomites were people who engaged in nonpenetrative intercourse, regardless of sexual preference. The crime of sodomy, like the crime of
adultery, was also a sentence against acts, not personalities. Censorship was pastoral not biopolitical.
Then came the modern period, when sexual preference was turned into a permanent character
and engenders the person himself. Homosexuality or heterosexuality has become a person’s
essence and limit. Although popular with the gay press, Foucault criticized the gay movement for
taking the bait and internalizing the invented category of a “third sex.” Thus, “the homosexual is
now a species.”
Although he himself had a male partner, Foucault in his interviews refused to endorse samesex marriage since he did not believe that further institutionalization of relationships is the
solution to sexual problems. He was not positive on present discourses on sex, both in law and in
the sciences, where sexualities have become the controlling issue of the day. Sexual activities
have defined a person, who has to “come out” and make it his very truth.
Instead of more and more sex, Foucault wished society to embrace, just like the ancient
philosophers, the value of friendship or forms of non-sexual intimacy as ends themselves.
Friendship has even become suspect today, as it has just become a means to a sexual encounter
that in itself is not fulfilling. We came to know sexual orgasm as our only source of pleasure,
Foucault said. But by creating pleasures other than sex, one creates new loves, new intensities,
new forms of being by the self. Foucault, who died of AIDS, announced this counter-cultural
movement, expounding the possibility of a future when sex would cease to have a monarchic
right of death and power over life.
III. GOING GREEN: PHILOSOPHY OF ECOLOGY
The grizzly, the wolf, the rattlesnake, the condor, the coyote, the crocodile, whatever, each and
every species has as much right to be here as we do.
— Edward Abbey, Postcards from Ed: Dispatches and Salvos from an American Iconoclast
Environmentalism is another recent movement, given the alarming effects of global warming
and environmental neglect, resulting in the fast depletion of natural resources and the extinction
of plant and animal species by the day.
In Deep Ecology, Bill Devall and George Sessions argued for a “deep ecology worldview”
against the traditional “dominant worldview” of man’s right to dominate the earth. The
traditional worldview of industrial societies justifies man’s dominance over nature, the belief in
ample resource reserves, consumerism, and technological exploits.
Deep ecology, on one hand, seeks harmony with nature, the recognition of the intrinsic worth
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of every specie, the limits of the earth’s supplies, and recycling technology. It emphasizes
ecological consciousness and oneness with nature. Man must care for nature as he is part of it. If
he harms it, he harms himself and the future of his children. Even without direct human benefit,
caring for nonhuman life forms is an intrinsic value in itself.
A related advocacy is “animal liberation.” Peter Singer said that animals are sentient beings;
they are our fellows when they feel pleasure and pain. The interests of animals must count in the
equation in making moral judgments. Thus, some animal rights activists argue that animals have
an “equal right to live” (“biocentric equality”) and advocate vegetarianism.
Biocentric equality has been criticized though for disturbing the natural food chain; that it is
biased against plant life as the only legitimate source of food. Humans, like other animals, can
eat other animals since this is part of nature’s design for a balanced ecosystem. Some animals are
designed to be herbivores, some carnivores, and some, like humans, are omnivores. Furthermore,
if the value of animal life is equal to human life, the argument can be extended to prohibiting the
extermination of pests, such as locusts, cockroaches, insects, and rats, and secure every vermin’s
right to life.
Among the principles of deep ecology is that humans have no right to reduce the diversity of
nature, except to justify vital needs like nutrition (no over-grazing, overharvesting, or overuse).
Creationists take the cue from the story of Noah’s Ark. In that ark, Noah’s family was saved with
the other creatures. The story appears to point that man cannot survive alone without the rest of
God’s creation.
“Wild law” is the term used for laws consistent with “earth jurisprudence,” which balances
human rights with other members of Nature, including plants, animals, and the ecosystem.
Some international law norms and principles below seek to ensure “environmental justice,”
which gained ground after 1992, following the adoption of the Rio Declaration on Environment
and Development and the UN Framework Convention on Climate Change (UNFCCC). In the
Philippines, environmental laws are being enforced through the Department of Environment and
Natural Resources (DENR), while the Philippine Animal Welfare Society (PAWS) promotes
animal rights.
Common, but Differentiated Responsibilities
Principle 7 of the Rio Declaration declares that “States have common but differentiated
responsibilities.” Greater responsibility falls on developed countries such as the United States,
given “the pressures their societies place on the global environment and of the technologies and
financial resources they command.” The preambular of the UNFCCC notes that the largest share
of historical and current global emissions of greenhouse gases originated in developed countries.
As for developing countries, they are expected to reduce emissions as well, while taking into
consideration their industrial needs, with economic growth as a priority.
Polluter Pays Principle
Principle 16 of the Rio Declaration states that “National authorities should endeavor to
promote the internalization of environmental costs and the use of economic instruments, taking
into account the approach that the polluter should, in principle, bear the cost of pollution…” This
principle seeks to allocate costs of pollution prevention from the industries responsible.
Intergenerational Equity
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Principle 3 of the Rio Declaration provides that “the right to development must be fulfilled so
as to equitably meet developmental and environmental needs of present and future generations.”
This requires a balance between meeting consumptive demands of existing societies and
ensuring that adequate resources are available for future generations. It is an international
principle that developed through the Philippine case of Oposa v. Factoran (G.R. No. 101083,
July 30, 1993), known internationally as the Minors case, where the parents appealed to cancel
timber license agreements on behalf of “unborn generations.”
Precautionary Principle
Principle 3 of the UNFCCC maintains that state parties “should take precautionary measures
to anticipate, prevent, or minimize the causes of climate change and mitigate its adverse effects.
Where there are threats of serious or irreversible damage, lack of full scientific certainty should
not be used as a reason for postponing such measures.” Thus, States need not wait for an
eventual and actual harm, or that scientific certainty of a link be established, before preventive
measures may be taken, considering the long-term and irreversible effects of environmental
damage.
Transboundary Harm
This principle was borne out of the Trail Smelter, Corfu Channel, and Lake Lanoux arbitration
cases. According to Principle 2 of the Rio Declaration, states have “the sovereign right to exploit
their own resources pursuant to their own environmental and developmental policies, and the
responsibility to ensure that activities within their jurisdiction or control do not cause damage to
the environment of other states or of areas beyond the limits of national jurisdiction.” There is
the duty for a state to prevent activities that entail significant risk outside its borders, when the
activity is serious and established by clear and convincing evidence.
Sustainable Development
Principle 1 of the Rio Declaration declares that “human beings are at the center of concern for
sustainable development.” The principle integrates environmental protection into the economic
development process, for long-term benefits of disaster prevention and health care. The reason is
that humans “are entitled to a healthy and productive life in harmony with nature” as set out it in
the Minors case and enshrined in the Philippine Constitution.
Technology Transfer
In our industrialized age, technology is power. Sharing this power for environmental causes
does not come handy though, given that technological assistance concerns not only state
prerogatives but also individual intellectual property rights. For vulnerable developing countries
without access to such innovations, relaxing intellectual property rights is a matter of survival
rights, to be able to “copy” technological lifestyles and alternative energy resources to upgrade
their environmental conditions and chances for survival.
The Cancun Agreements made it an undertaking of developed countries to finance resources
for technology transfer and access to environmentally sound technologies, especially for smallisland countries, countries with low-lying coastal areas, countries prone to natural disasters,
countries with areas of high urban atmospheric pollution, and countries with fragile ecosystems
like the Philippines.
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Rights of Indigenous Peoples
The International Forum of Indigenous Peoples on Climate Change issued a statement that
many adaptation and mitigation policies and projects promoted as solutions to climate change,
like market-based mechanisms, carbon trading, agro fuels, and the Clean Development
Mechanism, devastate Indigenous Peoples’ land and territories and cause more human rights
violations. Nevertheless, indigenous communities are only one of the stakeholders in climate
change issues. Ethical and practical responses may yield to more appropriate technologies when
necessary to save lives and the planet.
IV. LAW, QUO VADIS?
Musical innovation is full of danger to the State, for when modes of music change, the laws of
the State always change with them.
— Plato, Plato’s Republic: The Theater of the Mind
For social legal theorists, the direction of law is indicative of the state of society and social
relationships. The five variables, according to Harvard sociologist Donald Black, are
stratification, morphology, culture, organization, and social control.
Stratification refers to inequalities in wealth. Law tends to be punitive or penal against the
underclass. It is compensatory, rehabilative, or therapeutic when dealing with the upper class,
and conciliatory among people of equal class. Morphology refers to the degree of
interdependence. Law tends to be xenophobic and accusatory against immigrants, but
accommodating among fellows. Culture refers to the degree of conformity. Pluralistic cultures
have the benefit of complexity and diversity of ideas, while homogeneous cultures tend to be
conservative and reclusive.
Organization refers to the degree of political administration. Laws increase with government
bureaucratization and centralization. Social control, meanwhile, is the measure of normativity.
The more different the social control is, the more distant and indifferent it is to laws.
Black’s analysis trails Max Weber’s thought that it is characteristic of pre-industrial laws to
have double standards and to focus on favors and personalities. In contrast, modern laws tend to
be reasonable, fair, and procedural.
Meanwhile, according to social Darwinist Herbert Spencer, natural selection and survival of
the fittest are the primary determining factors of law. The mark of a progressive society is from
primitive singularity or homogeneity to heterogeneity or plurality. Traditional societies resist
changes and tend to be militaristic, despotic, regulatory, and punitive, to impose and keep a
singular belief system or the status quo. Industrial societies tend to be open, with freedom, peace,
consent, and contract as basis of control. Decrease in government intervention is inversely
proportional to individual liberty. The role of government will in the future be gradually confined
to the enforcement of contracts and securing personal liberty and safety.
Homogeneous undifferentiated societies, concurred Emile Durkheim, will depend on
mechanical solidarity through penal law and harsh punishments, just like in earlier societies that
use capital punishment, torture, slavery, and branding. Heterogeneous societies, by contrast, will
use restitutive law and rehabilitation. Restitutive laws reintegrate violators and allow them to
amend their behavior. Further, an increasingly complicated society is highly specialized in
different fields of interest. The solution to this social maze is not hard law but consensual
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contracts that can arrange the interests, warranties, responsibilities, and liabilities of multiple
complex parties.
In a more diverse globalized community, minorities and once occupied peoples such as
Filipinos are beginning to gain status in global trends and events. The last chapter will mark the
search for Filipino legal philosophy, an amalgam of Western and Asian, traditional and
postmodern laws.
CHAPTER X CASE READINGS
ON WOMEN’S RIGHTS AND DOMICILE
IMELDA ROMUALDEZ-MARCOS v. COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO
(G.R. No. 119976, September 18, 1995)
ROMERO, J., separate opinion:
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction,
rendered more murky by the conflicting opinions of foreign legal authorities. This being the state
of things, it is imperative as it is opportune to illumine the darkness with the beacon light of
truth, as dictated by experience and the necessity of according petitioner her right to choose her
domicile in keeping with the enlightened global trend to recognize and protect the human rights
of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil, political and social
rights are concerned, is a relatively recent phenomenon that took seed only in the middle of this
century. It is a historical fact that for over three centuries, the Philippines had been colonized by
Spain, a conservative, Catholic country which transplanted to our shores the Old World cultures,
mores and attitudes and values. Through the imposition on our government of the Spanish Civil
Code in 1889, the people, both men and women, had no choice but to accept such concepts as the
husband’s being the head of the family and the wife’s subordination to his authority. In such role,
his was the right to make vital decisions for the family. Many instances come to mind, foremost
being what is related to the issue before us, namely, that “the husband shall fix the residence of
the family.” Because he is made responsible for the support of the wife and the rest of the family,
he is also empowered to be the administrator of the conjugal property, with a few exceptions and
may, therefore, dispose of the conjugal partnership property for the purposes specified under the
law; whereas, as a general rule, the wife cannot bind the conjugal partnership without the
husband’s consent. As regards the property pertaining to the children under parental authority,
the father is the legal administrator and only in his absence may the mother assume his powers.
Demeaning to the wife’s dignity are certain strictures on her personal freedoms, practically
relegating her to the position of minors and disabled persons. To illustrate a few: The wife
cannot, without the husband’s consent, acquire any gratuitous title, except from her ascendants,
descendants, parents-in-law, and collateral relatives within the fourth degree. With respect to her
employment, the husband wields a veto power in the case the wife exercises her profession or
occupation or engages in business, provided his income is sufficient for the family, according to
its social standing and his opposition is founded on serious and valid grounds. Most offensive, if
not repulsive, to the liberal-minded is the effective prohibition upon a widow to get married till
after three hundred days following the death of her husband, unless in the meantime, she has
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given birth to a child. The mother who contracts a subsequent marriage loses the parental
authority over her children, unless the deceased husband, father of the latter, has expressly
provided in his will that his widow might marry again, and has ordered that in such case she
should keep and exercise parental authority over their children. Again, an instance of a husband’s
overarching influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked
no protest from them until the concept of human rights and equality between and among nations
and individuals found hospitable lodgment in the United Nations Charter of which the
Philippines was one of the original signatories. By then, the Spanish “conquistadores” had been
overthrown by the American forces at the turn of the century. The bedrock of the U.N. Charter
was firmly anchored on this credo: “to reaffirm faith in the fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and women.” (Emphasis
supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the
burgeoning of the feminist movement. What may be regarded as the international bill of rights
for women was implanted in the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) adopted by the U.N. General Assembly which entered into force as
an international treaty on September 3, 1981. In ratifying the instrument, the Philippines bound
itself to implement its liberating spirit and letter, for its Constitution, no less, declared that “The
Philippines. . . adopts the generally accepted principles of international law as part of the law of
the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity
with all nations.” One such principle embodied in the CEDAW is granting to men and women
“the same rights with regard to the law relating to the movement of persons and the freedom to
choose their residence and domicile.” (Emphasis supplied).
CEDAW’s pro-women orientation which was not lost on Filipino women was reflected in the
1987 Constitution of the Philippines and later, in the Family Code, both of which were speedily
approved by the first lady President of the country, Corazon C. Aquino. Notable for its emphasis
on the human rights of all individuals and its bias for equality between the sexes are the
following provisions: “The State values the dignity of every human person and guarantees full
respect for human rights” and “The State recognizes the role of women in nation-building, and
shall ensure the fundamental equality before the law of women and men.”
A major accomplishment of women in their quest for equality with men and the elimination of
discriminatory provisions of law was the deletion in the Family Code of almost all of the
unreasonable strictures on wives and the grant to them of personal rights equal to that of their
husbands. Specifically, the husband and wife are now given the right jointly to fix the family
domicile; concomitant to the spouses’ being jointly responsible for the support of the family is
the right and duty of both spouses to manage the household; the administration and the
enjoyment of the community property shall belong to both spouses jointly; the father and mother
shall now jointly exercise legal guardianship over the property of their unemancipated common
child and several others.
Aware of the hiatus and continuing gaps in the law, insofar as women’s rights are concerned,
Congress passed a law popularly known as “Women in Development and Nation Building Act”
Among the rights given to married women evidencing their capacity to act in contracts equal to
that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and credit
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arrangements under the same conditions as men;
(2) Women shall have equal access to all government and private sector programs granting
agricultural credit, loans and non material resources and shall enjoy equal treatment in agrarian
reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance contracts;
and
(4) Married women shall have rights equal to those of married men in applying for passports,
secure visas and other travel documents, without need to secure the consent of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this
Court now be the first to respond to its clarion call that “Women’s Rights are Human Rights” and
that “All obstacles to women’s full participation in decision-making at all levels, including the
family” should be removed. Having been herself a Member of the Philippine Delegation to the
International Women’s Year Conference in Mexico in 1975, this writer is only too keenly aware
of the unremitting struggle being waged by women the world over, Filipino women not
excluded, to be accepted as equals of men and to tear down the walls of discrimination that hold
them back from their proper places under the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and judicial,
according more rights to women hitherto denied them and eliminating whatever pockets of
discrimination still exist in their civil, political and social life, can it still be insisted that widows
are not at liberty to choose their domicile upon the death of their husbands but must retain the
same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be bound
by the domicile of the departed husband, if at all she was before. Neither does she automatically
revert to her domicile of origin, but exercising free will, she may opt to reestablish her domicile
of origin. In returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of which
are located in the First District of Leyte, petitioner amply demonstrated by overt acts, her
election of a domicile of choice, in this case, a reversion to her domicile of origin. Added
together, the time when she set up her domicile in the two places sufficed to meet the one-year
requirement to run as Representative of the First District of Leyte.
ENVIRONMENTAL RIGHTS OF UNBORN GENERATIONS
RIZALINA OPOSA, ET AL. v. THE HONORABLE FULGENCIO S. FACTORAN, JR., ET AL.
(G.R. No. 101083 July 30, 1993)
DAVIDE, JR., J.:
xxx
While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated in the latter. Such a right belongs
to a different category of rights altogether for it concerns nothing less than self-preservation and
self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which
may even be said to predate all governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is
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because of the well-founded fear of its framers that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else
would be lost not only for the present generation, but also for those to come — generations
which stand to inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain
from impairing the environment. During the debates on this right in one of the plenary sessions
of the 1986 Constitutional Commission, the following exchange transpired between
Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section
in question:
MR. VILLACORTA: Does this section mandate the State to provide sanctions against all
forms of pollution — air, water and noise pollution?
MR. AZCUNA: Yes, Madam President. The right to healthful (sic) environment necessarily
carries with it the correlative duty of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance.
The said right implies, among many other things, the judicious management and conservation
of the country’s forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to
health, as well as the other related provisions of the Constitution concerning the conservation,
development and utilization of the country’s natural resources, then President Corazon C.
Aquino promulgated on 10 June 1987 E.O. No. 192, Section 4 of which expressly mandates that
the Department of Environment and Natural Resources “shall be the primary government agency
responsible for the conservation, management, development and proper use of the country’s
environment and natural resources, specifically forest and grazing lands, mineral, resources,
including those in reservation and watershed areas, and lands of the public domain, as well as the
licensing and regulation of all natural resources as may be provided for by law in order to ensure
equitable sharing of the benefits derived therefrom for the welfare of the present and future
generations of Filipinos.” Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country’s forest,
mineral, land, off-shore areas and other natural resources, including the protection and
enhancement of the quality of the environment, and equitable access of the different segments of
the population to the development and the use of the country’s natural resources, not only for the
present generation but for future generations as well. It is also the policy of the state to recognize
and apply a true value system including social and environmental cost implications relative to
their utilization, development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative
Code of 1987, specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino
people, the full exploration and development as well as the judicious disposition, utilization,
management, renewal and conservation of the country’s forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining
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a sound ecological balance and protecting and enhancing the quality of the environment and the
objective of making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account
social and environmental cost implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses “the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment.” Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency’s being subject to law and higher authority. Said section
provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be
primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State’s
constitutional mandate to control and supervise the exploration, development, utilization, and
conservation of the country’s natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will
serve as the bases for policy formulation, and have defined the powers and functions of the
DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the “environmental right” of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were issued. The former “declared a continuing policy of
the State (a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social,
economic and other requirements of present and future generations of Filipinos, and (c) to insure
the attainment of an environmental quality that is conducive to a life of dignity and well-being.”
As its goal, it speaks of the “responsibilities of each generation as trustee and guardian of the
environment for succeeding generations.” The latter statute, on the other hand, gave flesh to the
said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR’s duty — under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the
said right.
THE QUASI-SUSPECT CLASSIFICATION OF HOMOSEXUALS
ANG LADLAD LGBT PARTY v. COMMISSION ON ELECTIONS
(G.R. No. 190582, April 8, 2010)
PUNO, C.J., separate concurring opinion:
xxx
The ponencia of Mr. Justice del Castillo refused to characterize homosexuals and bisexuals as
a class in themselves for purposes of the equal protection clause. Accordingly, it struck down the
assailed Resolutions using the most liberal basis of judicial scrutiny, the rational basis test,
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according to which government need only show that the challenged classification is rationally
related to serving a legitimate state interest.
I humbly submit, however, that a classification based on gender or sexual orientation is a
quasi-suspect classification, as to trigger a heightened level of review.
xxx
If a legislative classification disadvantages a “suspect class” or impinges upon the exercise of
a “fundamental right,” then the courts will employ strict scrutiny and the statute must fall unless
the government can demonstrate that the classification has been precisely tailored to serve a
compelling governmental interest. Over the years, the United States Supreme Court has
determined that suspect classes for equal protection purposes include classifications based on
race, religion, alienage, national origin, and ancestry. The underlying rationale of this theory is
that where legislation affects discrete and insular minorities, the presumption of constitutionality
fades because traditional political processes may have broken down. In such a case, the State
bears a heavy burden of justification, and the government action will be closely scrutinized in
light of its asserted purpose.
On the other hand, if the classification, while not facially invidious, nonetheless gives rise to
recurring constitutional difficulties, or if a classification disadvantages a “quasi-suspect class,” it
will be treated under intermediate or heightened review. To survive intermediate scrutiny, the
law must not only further an important governmental interest and be substantially related to that
interest, but the justification for the classification must be genuine and must not depend on broad
generalizations. Noteworthy, and of special interest to us in this case, quasi-suspect classes
include classifications based on gender or illegitimacy.
If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere
rationality. This is a relatively relaxed standard reflecting the Court’s awareness that the drawing
of lines which creates distinctions is peculiarly a legislative task and an unavoidable one. The
presumption is in favor of the classification, of the reasonableness and fairness of state action,
and of legitimate grounds of distinction, if any such grounds exist, on which the State acted.
Instead of adopting a rigid formula to determine whether certain legislative classifications
warrant more demanding constitutional analysis, the United States Supreme Court has looked to
four factors, thus:
(1) The history of invidious discrimination against the class burdened by the legislation;
(2) Whether the characteristics that distinguish the class indicate a typical class member’s
ability to contribute to society;
(3) Whether the distinguishing characteristic is “immutable” or beyond the class members’
control; and
(4) The political power of the subject class.
These factors, it must be emphasized, are not constitutive essential elements of a suspect or
quasi-suspect class, as to individually demand a certain weight. The U.S. Supreme Court has
applied the four factors in a flexible manner; it has neither required, nor even discussed, every
factor in every case. Indeed, no single talisman can define those groups likely to be the target of
classifications offensive to the equal protection clause and therefore warranting heightened or
strict scrutiny; experience, not abstract logic, must be the primary guide.
In any event, the first two factors — history of intentional discrimination and relationship of
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classifying characteristic to a person’s ability to contribute — have always been present when
heightened scrutiny has been applied. They have been critical to the analysis and could be
considered as prerequisites to concluding a group is a suspect or quasi-suspect class. However,
the last two factors – immutability of the characteristic and political powerlessness of the group
— are considered simply to supplement the analysis as a means to discern whether a need for
heightened scrutiny exists.
Guided by this framework, and considering further that classifications based on sex or gender
— albeit on a male/female, man/woman basis — have been previously held to trigger heightened
scrutiny, I respectfully submit that classification on the basis of sexual orientation (i.e.,
homosexuality and/or bisexuality) is a quasi-suspect classification that prompts intermediate
review.
The first consideration is whether homosexuals have suffered a history of purposeful unequal
treatment because of their sexual orientation. One cannot, in good faith, dispute that gay and
lesbian persons historically have been, and continue to be, the target of purposeful and pernicious
discrimination due solely to their sexual orientation. Paragraphs 6 and 7 of Ang Ladlad’s Petition
for Registration for party-list accreditation in fact state:
6. There have been documented cases of discrimination and violence perpetuated against the
LGBT Community, among which are:
(a) Effeminate or gay youths being beaten up by their parents and/or guardians to make them
conform to standard gender norms of behavior;
(b) Fathers and/or guardians who allow their daughters who are butch lesbians to be raped [, so
as] to “cure” them into becoming straight women;
(c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and choirs because of
their identity;
(d) Effeminate youths and masculine young women are refused admission from (sic) certain
schools, are suspended or are automatically put on probation;
(e) Denial of jobs, promotions, trainings and other work benefits once one’s sexual orientation
and gender identity is (sic) revealed;
(f) Consensual partnerships or relationships by gays and lesbians who are already of age, are
broken up by their parents or guardians using the [A]nti-kidnapping [L]aw;
(g) Pray-overs, exorcisms, and other religious cures are performed on gays and lesbians to
“reform” them;
(h) Young gays and lesbians are forcibly subjected to psychiatric counseling and therapy to
cure them[,] despite the delisting (sic) of homosexuality and lesbianism as a mental disorder by
the American Psychiatric Association;
(i) Transgenders, or individuals who were born mail but who self-identity as women and dress
as such, are denied entry or services in certain restaurants and establishments; and
(j) Several murders from the years 2003-3006 were committed against gay men, but were not
acknowledged by police as hate crimes or violent acts of bigotry.
7. In the recent May 2009 U.S. asylum case of Philip Belarmino, he testified that as a young
gay person in the Philippines, he was subjected to a variety of sexual abuse and violence,
including repeated rapes[,] which he could not report to [the] police [or speak of] to his own
parents.
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Accordingly, this history of discrimination suggests that any legislative burden placed on
lesbian and gay people as a class is “more likely than others to reflect deep-seated prejudice
rather than legislative rationality in pursuit of some legitimate objective.”
A second relevant consideration is whether the character-in-issue is related to the person’s
ability to contribute to society. Heightened scrutiny is applied when the classification bears no
relationship to this ability; the existence of this factor indicates the classification is likely based
on irrelevant stereotypes and prejudice. Insofar as sexual orientation is concerned, it is gainful to
repair to Kerrigan v. Commissioner of Public Health, viz.:
The defendants also concede that sexual orientation bears no relation to a person’s ability to
participate in or contribute to society, a fact that many courts have acknowledged, as well. x x x
If homosexuals were afflicted with some sort of impediment to their ability to perform and to
contribute to society, the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’
would not exist; their impediment would betray their status. x x x In this critical respect, gay
persons stand in stark contrast to other groups that have been denied suspect or quasi-suspect
class recognition, despite a history of discrimination, because the distinguishing characteristics of
those groups adversely affect their ability or capacity to perform certain functions or to discharge
certain responsibilities in society.
Unlike the characteristics unique to those groups, however, “homosexuality bears no relation
at all to [an] individual’s ability to contribute fully to society.” Indeed, because an individual’s
homosexual orientation “implies no impairment in judgment, stability, reliability or general
social or vocational capabilities”; the observation of the United States Supreme Court that race,
alienage and national origin — all suspect classes entitled to the highest level of constitutional
protection — “are so seldom relevant to the achievement of any legitimate state interest that
laws grounded in such considerations are deemed to reflect prejudice and antipathy” is no less
applicable to gay persons. (italics supplied)
Clearly, homosexual orientation is no more relevant to a person’s ability to perform and
contribute to society than is heterosexual orientation.
A third factor that courts have considered in determining whether the members of a class are
entitled to heightened protection for equal protection purposes is whether the attribute or
characteristic that distinguishes them is immutable or otherwise beyond their control. Of course,
the characteristic that distinguishes gay persons from others and qualifies them for recognition as
a distinct and discrete group is the characteristic that historically has resulted in their social and
legal ostracism, namely, their attraction to persons of the same sex.
Immutability is a factor in determining the appropriate level of scrutiny because the inability
of a person to change a characteristic that is used to justify different treatment makes the
discrimination violative of the rather “‘basic concept of our system that legal burdens should
bear some relationship to individual responsibility.’” However, the constitutional relevance of
the immutability factor is not reserved to those instances in which the trait defining the burdened
class is absolutely impossible to change. That is, the immutability prong of the suspectness
inquiry surely is satisfied when the identifying trait is “so central to a person’s identity that it
would be abhorrent for government to penalize a person for refusing to change [it].”
Prescinding from these premises, it is not appropriate to require a person to repudiate or
change his or her sexual orientation in order to avoid discriminatory treatment, because a
person’s sexual orientation is so integral an aspect of one’s identity. Consequently, because
sexual orientation “may be altered [if at all] only at the expense of significant damage to the
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individual’s sense of self,” classifications based thereon “are no less entitled to consideration as a
suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable
characteristic.” Stated differently, sexual orientation is not the type of human trait that allows
courts to relax their standard of review because the barrier is temporary or susceptible to selfhelp.
The final factor that bears consideration is whether the group is “a minority or politically
powerless.” However, the political powerlessness factor of the level-of-scrutiny inquiry does not
require a showing of absolute political powerlessness. Rather, the touchstone of the analysis
should be “whether the group lacks sufficient political strength to bring a prompt end to the
prejudice and discrimination through traditional political means.”
Applying this standard, it would not be difficult to conclude that gay persons are entitled to
heightened constitutional protection despite some recent political progress. The discrimination
that they have suffered has been so pervasive and severe — even though their sexual orientation
has no bearing at all on their ability to contribute to or perform in society — that it is highly
unlikely that legislative enactments alone will suffice to eliminate that discrimination.
Furthermore, insofar as the LGBT community plays a role in the political process, it is apparent
that their numbers reflect their status as a small and insular minority.
It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals and
trans-genders out for disparate treatment is subject to heightened judicial scrutiny to ensure that
it is not the product of historical prejudice and stereotyping.
In this case, the assailed Resolutions of the COMELEC unmistakably fail the intermediate
level of review. Regrettably, they betray no more than bigotry and intolerance; they raise the
inevitable inference that the disadvantage imposed is born of animosity toward the class of
persons affected (that is, lesbian, gay, bisexual and trans-gendered individuals). In our
constitutional system, status-based classification undertaken for its own sake cannot survive.
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CHAPTER XI
THE “X” FACTORS OF PHILIPPINE LEGAL
PARADIGM
Thou shalt love thy country after God and thy honor and more than thyself:
for she is the only Paradise which God has given thee in this life,
the only patrimony of thy race, the only inheritance of thy ancestors
and the only hope of thy posterity;
because of her, thou hast life, love and interests, happiness, honor and God.
—Lawyer and Filipino nationalist, Apolinario Mabini, The True Decalogue
In the previous chapters, the reader may ask why we have discussed Western philosophies to
explain Philippine law. The reason is that Philippine law has generally been adapted from the
Western legal system. Yes, we did import our major laws.
Our civil and criminal codes were adaptations from codified Hispanic and Roman laws. Our
Family Code was influenced by Canon Law. Our political constitution was inspired by the
American and French liberal constitutions. Our commercial laws were wholesale copies of
American mercantile laws. Jurisprudence and remedial rules on evidence were based on Western
empirical and inductive theories. Labor law was partly a concession to socialist elements inspired
by Marx’s ideology. While international law trends continue to be dominated by Western legal
currents.
It is said that Westernization, like globalization, is inevitable for most of Asia. After centuries
of arresting and obliterating the development of the legal processes and philosophies of
colonized countries such as the Philippines, the alternative is to adopt the developed and
accustomed systems of the West as it may be too late to risk untested waters.
Apart from the Calantiao Code, which was found to be a hoax, and the Maragtas Code, which
is a collection of legends of datus, pre-Hispanic Filipinos did not leave a written draft of their
laws. What we have are pass-on traditions of indigenous communities. For the Muslim South
under Shariah law, they have at least the Qur’an as both religious and legal reference. The
Spanish historian Antonio de Morga, in the History of the Philippine Islands, wrote that “the
natives’ laws throughout the islands were made in the same manner, and they followed the
traditions and customs of their ancestors, without anything being written. Some provinces had
different customs than others in some respects. However, they agreed in most, and in all the
islands generally the same usages were followed.”
Pre-Hispanic customs, so long as they are in line with “natural law” were maintained by the
Spanish, as noted by Morga: “The same customs observed by these natives in their paganism, are
observed by them since they have become Christians, in so far as they are not contrary to natural
law, especially as to their slavery, successions, inheritances, adoptions, wills, and lawful trading.
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In their suits, they always allege and prove the custom, and are judged by it, according to royal
decrees to that effect. In other causes which do not involve their customs, and in criminal cases,
the matter is determined by law as among Spaniards.”
Meanwhile, our laws are now officially drafted and written in English, which carry Western
linguistic paradigm. Our technologies and information network are also communicated in
English. Law students are being trained to be wordsmiths in the spoken and written English.
Postgraduate studies are pursued in Western universities, which entail more immersion with
Western concepts, Western theories, and Western laws.
Of course, we know from intellectual property principles that no one has a monopoly of ideas,
such that Westerners cannot cry plagiarism if we have been adopting their philosophies and
policies into our laws. Still, the sorry result is that our laws perpetuate Western thought and we
have to rely on their jurisprudence as “persuasive.” Another effect is the disjunction from what
we consider lawful and what we really practice as Filipinos. Sometimes, the reason why the law
cannot be implemented or are hardly enforced is not because Filipinos are ignorant or oblivious
of the law, but because the law does not reflect Filipino customs, culture, and realities.
Finally, we can only generalize about a “Filipino philosophy” since Filipinos are multicultural
and have no singular unified thought system other than what we already received from the West.
Globalization, immigration, and new ways of living have also overtaken long-held traditions.
Instead, we can only point to patterns or tendencies of thought that characterize the way we live
and the way we make or break rules in the not-so-distant past.
As Socrates said, “Know thyself.” Our regional and local officials, many of them Westerneducated, can still savor their electorates’ peculiar values and cultural framework. We can also
look into Supreme Court jurisprudence, especially on indigenous viewpoints on land,
community, family, and ownership, as an exposition of our unique Philippine legal philosophy.
Duty, Interiority, and Community
The identity of the Filipino today is of a person asking what is his identity.
— Nick Joaquín, Culture and History
In the Elements of Filipino Philosophy, Leonardo Mercado observed that an essential
difference between Westerners and Filipinos, particularly from the rural and indigenous areas, is
the Filipino value for duties (“katungkulan”) while Westerners stress on rights. For instance,
peace pacts between minorities carry strict sanctions for bilateral duties and obligations. While
American-based provisions from the 1935 to the present Constitution emphasized rights and
liberties, the Kartilya ng Katipunan by Emilio Jacinto and the New Decalogue by Apolinario
Mabini were duties-based, worded with “thou shallts” and “thou shall nots.”
Responsibility too can be a personal call, even if there is no written contract or external law.
The debt of volition (“utang na loob”) is an example. According to Mercado, some tribes such as
the Tirurays do not even have a body of laws, but only a wealth of traditions and customs that
serve as sources of norms. The Malay concept of customary law or adat refers to rules in
accordance with social relationships such as the family, ancestry, religion, and group.
Whereas Westerners are individualistic, Filipinos tend to be social and communal, seeking
harmony (“pakikisama”) with others and with nature, to the point that private interest, private
property, and private affairs can be alien concepts. People from the barrio usually hold feasts and
celebrations where everyone must be welcome. Money and property must be available for
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lending and borrowing.
Before the concept of land titles was introduced, land ownership was also communal. Mother
Nature (“inang kalikasan”) is given a personality as the unseen hand and guardian of the land
and the forests. One can own what is grown from the land, but not the land itself. The endemic
problems of squatting and sidewalk vending on vacant land are due to the rural mentality that
one owns what one in the meantime can occupy, cultivate, and use.
Mercado noted that Filipinos have a concept of a reference group or “sakop.” Honor or shame,
success and failure, are shared by the group where one is identified. Punishment must be repaid
by another member of the sakop (“pambayad utang”). The sakop stretches, especially for the
Ifugaos, to departed loved ones and to future unborn children.
Loyalties are strong, and dynasties remain, because electorates consider themselves part of the
sakop of a traditional bet, with whom they have established identity and sympathies. The local
leader is the modern-day chieftain or datu. In as much as chieftains can pass their rule to their
children, so do modern politicians have been similarly entitled. The barker, the policeman, and
the government officer also consider their office or jurisdiction as their temporary domains, and
their relation to subjects is a relational (non-professional) debt, which entitle them to the “tong”
or personal tax, or to a tip or “lagay.”
Cosmic justice is our version of natural law. The concept of retribution and punishment is to
even out the status of the offended and the offender (“patas”). Due to the inadequacies of the
legal system, people sometimes leave it to “gabâ” or “karma” to punish the offender in its own
time and in the same measure. Some deliberately resort to ritualistic curses (“sumpa”), or to
sorcery and magic (“mananambal,” ”mangkukulam”) by calling on unseen forces or spirits of
nature.
To resolve disputes, mediation is a preferred mode of reconciliation, since it saves time and
money from a protracted litigation and avoids legal technicalities. This is the reason why we
have a barangay conciliation law, where amicable settlement of disputes is mandatory before
going to courts.
Jim Lopez in The Law on Alternative Dispute Resolution noted that Filipinos tend to avoid
hostile exchanges by being open to requests (pakiusap) and companionship (pakikisama).
However, once suits are commenced, settlement may be difficult since self-respect (amor
propio), one-upmanship (pasiklaban), and retaliation (gantihan) may prevent a party trying to
save face or to give a lesson to the opponent from entering into a compromise. On one hand, the
sense of shame (hiya), recognition of a debt (utang na loob), pity (awa), and propriety
(delicadeza) from a suit may also hasten settlement.
For Mercado, Filipino thinking is also non-dualist and non-scientific, thus, the penchant for
superstitions, herbal healing, metaphysical explanations, poetic intuition, and beliefs in Bathala
na (fatalism). Many Filipinos are animistic and live in a spirit world, whether with pagan spirits
or with Christian angels and saints. The Filipino calendar is marked with religious holidays and
fiestas. Filipinos can be very sensitive, spontaneous, emotional, or personal since enculturation
has not been geared to being logical or rational. By being non-dualist, Mercado explained that
Filipinos find it difficult to separate affairs of the worldly and the eternal, Church and State, body
and soul, reason and faith. These are considered part of a holistic dynamics that cannot be
segregated.
The Filipino Family
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Sticking with your family is what makes it a family.
— Mitch Albom, For One More Day
Finally, the centrality of the family. Some social theorists attribute to religious pressure why
the Philippines remains to be the only country without a divorce law, or which still mulls
contraception, and where there is hardly any move to legalize same-sex marriage. Partly, these
must be due to Catholicism, but also because of our agricultural and rural Eastern culture, which
encourages large intact families and stable marriages. Our Constitution also devotes an article on
family rights out of the Philippine experience from Ferdinand Marcos’ draconian population
control policies.
Filipinos are fond of children, and almost every Catholic dwelling has the image of the Sto.
Nino or the Infant Jesus. The term for the family, “maganak,” means to procreate. Our
forefathers already recognize the humanity of the unborn in that a pregnant woman is called
“nagdadalang-tao,” or bearer of a human being. An aborted fetus or a stillborn is said to hunt the
living in the form of a “tiyanak.” A flying half-bodied she-vampire or manananggal is feared for
sucking babies from the womb and for devouring infants.
In the Philippines, as well as in neighboring Asian cultures, family ties tend to be strong,
extending to nuclear families, in a man-woman-children setting. It is a duty to care for the
elderly, while pregnant women and children are given special treatment. Muslim, Buddhist and
Confucianist influences passed a family ethic and structure that Westerners might see as
patriarchal and docile. Our terms for ate (eldest sister), ditse (second sister), sanse (third sister),
kuya (eldest brother), diko (second brother), and sangko (third brother) were derived from the
Chinese.
The influx of Hindu traders, too, like Catholicism, strengthened the view that marriage is
indissoluble and a samkara (sacrament), where the allowed method of family planning is
brahhmacharya or sexual continence, which of recent had been promoted by Mahatma Gandhi
and Mother Teresa of Calcutta. To date, no Eastern country has legislated same-sex marriage.
Divorce, too, while allowed in most of Asia, generally remains taboo and uncommon.
For Philippine culture, courtship, marriage, pregnancy, and the rearing of children are not
private affairs but occasions to solidify alliances and to perpetuate community values. Family
and marriage are not private contracts, thus, the Philippine Constitution declares that the family
is “the foundation of the nation,” and marriage “an inviolable social institution (Art. XV, Sec. 12). The State has the duty to preserve not any family but the ideal family, which to most
Filipinos means a home with a father, mother, and child. So it goes for the only country that
enshrined in its Constitutional preamble — along with truth, justice, freedom, equality, and peace
— “the regime of…love.” Charity begins at home, but unfortunately at times, also ends there.
CHAPTER XI CASE READINGS
INDIGENOUS CUSTOMARY LAW ON LAND AND OWNERSHIP
ISAGANI CRUZ v. SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES
(G.R. No. 135385, December 6, 2000)
PUNO, J., separate opinion:
PRECIS
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A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled
“On the Uses and Disadvantages of History for Life.” Expounding on Nietzsche’s essay, Judge
Richard Posner wrote:
“Law is the most historically oriented, or if you like the most backward-looking, the most
‘past-dependent,’ of the professions. It venerates tradition, precedent, pedigree, ritual, custom,
ancient practices, ancient texts, archaic terminology, maturity, wisdom, seniority, gerontocracy,
and interpretation conceived of as a method of recovering history. It is suspicious of innovation,
discontinuities, ‘paradigm shifts,’ and the energy and brashness of youth. These ingrained
attitudes are obstacles to anyone who wants to re-orient law in a more pragmatic direction. But,
by the same token, pragmatic jurisprudence must come to terms with history.”
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1. Indigenous Peoples: Their History
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How these indigenous peoples came to live in the Philippines goes back to as early as
25,000 to 30,000 B.C.
Before the time of Western contact, the Philippine archipelago was peopled largely by the
Negritos, Indonesians and Malays. The strains from these groups eventually gave rise to common
cultural features which became the dominant influence in ethnic reformulation in the
archipelago. Influences from the Chinese and Indian civilizations in the third or fourth millenium
B.C. augmented these ethnic strains. Chinese economic and socio-cultural influences came by
way of Chinese porcelain, silk and traders. Indian influence found their way into the religiouscultural aspect of pre-colonial society.
The ancient Filipinos settled beside bodies of water. Hunting and food gathering became
supplementary activities as reliance on them was reduced by fishing and the cultivation of the
soil. From the hinterland, coastal, and riverine communities, our ancestors evolved an essentially
homogeneous culture, a basically common way of life where nature was a primary factor.
Community life throughout the archipelago was influenced by, and responded to, common
ecology. The generally benign tropical climate and the largely uniform flora and fauna favored
similarities, not differences. Life was essentially subsistence but not harsh.
The early Filipinos had a culture that was basically Malayan in structure and form. They had
languages that traced their origin to the Austronesian parent-stock and used them not only as
media of daily communication but also as vehicles for the expression of their literary moods.
They fashioned concepts and beliefs about the world that they could not see, but which they
sensed to be part of their lives. They had their own religion and religious beliefs. They believed
in the immortality of the soul and life after death. Their rituals were based on beliefs in a ranking
deity whom they called Bathalang Maykapal, and a host of other deities, in the environmental
spirits and in soul spirits. The early Filipinos adored the sun, the moon, the animals and birds, for
they seemed to consider the objects of Nature as something to be respected. They venerated
almost any object that was close to their daily life, indicating the importance of the relationship
between man and the object of nature.
The unit of government was the “barangay,” a term that derived its meaning from the Malay
word “balangay,” meaning, a boat, which transported them to these shores. The barangay was
basically a family-based community and consisted of thirty to one hundred families. Each
barangay was different and ruled by a chieftain called a “dato.” It was the chieftain’s duty to rule
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and govern his subjects and promote their welfare and interests. A chieftain had wide powers for
he exercised all the functions of government. He was the executive, legislator and judge and was
the supreme commander in time of war.
Laws were either customary or written. Customary laws were handed down orally from
generation to generation and constituted the bulk of the laws of the barangay. They were
preserved in songs and chants and in the memory of the elder persons in the community. The
written laws were those that the chieftain and his elders promulgated from time to time as the
necessity arose. The oldest known written body of laws was the Maragtas Code by Datu
Sumakwel at about 1250 A.D. Other old codes are the Muslim Code of Luwaran and the
Principal Code of Sulu. Whether customary or written, the laws dealt with various subjects, such
as inheritance, divorce, usury, loans, partnership, crime and punishment, property rights, family
relations and adoption. Whenever disputes arose, these were decided peacefully through a court
composed by the chieftain as “judge” and the barangay elders as “jury.” Conflicts arising
between subjects of different barangays were resolved by arbitration in which a board composed
of elders from neutral barangays acted as arbiters.
Baranganic society had a distinguishing feature: the absence of private property in land.
The chiefs merely administered the lands in the name of the barangay. The social order was an
extension of the family with chiefs embodying the higher unity of the community. Each
individual, therefore, participated in the community ownership of the soil and the instruments of
production as a member of the barangay. This ancient communalism was practiced in accordance
with the concept of mutual sharing of resources so that no individual, regardless of status, was
without sustenance. Ownership of land was non-existent or unimportant and the right of
usufruct was what regulated the development of lands. Marine resources and fishing grounds
were likewise free to all. Coastal communities depended for their economic welfare on the kind
of fishing sharing concept similar to those in land communities. Recognized leaders, such as the
chieftains and elders, by virtue of their positions of importance, enjoyed some economic
privileges and benefits. But their rights, related to either land and sea, were subject to their
responsibility to protect the communities from danger and to provide them with the leadership
and means of survival.
Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao.
The Sultanate of Sulu was established and claimed jurisdiction over territorial areas represented
today by Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within this
jurisdiction: Sama, Tausug, Yakan and Subanon. The Sultanate of Maguindanao spread out from
Cotabato toward Maranao territory, now Lanao del Norte and Lanao del Sur.
The Muslim societies evolved an Asiatic form of feudalism where land was still held in
common but was private in use. This is clearly indicated in the Muslim Code of Luwaran. The
Code contains a provision on the lease of cultivated lands. It, however, has no provision for the
acquisition, transfer, cession or sale of land.
The societies encountered by Magellan and Legaspi therefore were primitive economies
where most production was geared to the use of the producers and to the fulfillment of kinship
obligations. They were not economies geared to exchange and profit. Moreover, the family basis
of barangay membership as well as of leadership and governance worked to splinter the
population of the islands into numerous small and separate communities.
When the Spaniards settled permanently in the Philippines in 1565, they found the
Filipinos living in barangay settlements scattered along water routes and river banks. One
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of the first tasks imposed on the missionaries and the encomenderos was to collect all scattered
Filipinos together in a reduccion. As early as 1551, the Spanish government assumed an
unvarying solicitous attitude towards the natives. The Spaniards regarded it a sacred “duty to
conscience and humanity to civilize these less fortunate people living in the obscurity of
ignorance” and to accord them the “moral and material advantages” of community life and the
“protection and vigilance afforded them by the same laws.”
The Spanish missionaries were ordered to establish pueblos where the church and convent
would be constructed. All the new Christian converts were required to construct their houses
around the church and the unbaptized were invited to do the same. With the reduccion, the
Spaniards attempted to “tame” the reluctant Filipinos through Christian indoctrination using the
convento/casa real/plaza complex as focal point. The reduccion, to the Spaniards, was a
“civilizing” device to make the Filipinos law-abiding citizens of the Spanish Crown, and in the
long run, to make them ultimately adopt Hispanic culture and civilization.
All lands lost by the old barangays in the process of pueblo organization as well as all
lands not assigned to them and the pueblos, were now declared to be crown lands or
realengas, belonging to the Spanish king. It was from the realengas that land grants were
made to non-Filipinos.
The abrogation of the Filipinos’ ancestral rights in land and the introduction of the
concept of public domain were the most immediate fundamental results of Spanish colonial
theory and law. The concept that the Spanish king was the owner of everything of value in
the Indies or colonies was imposed on the natives, and the natives were stripped of their
ancestral rights to land.
Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious,
classified the Filipinos according to their religious practices and beliefs, and divided them into
three types. First were the Indios, the Christianized Filipinos, who generally came from the
lowland populations. Second, were the Moros or the Muslim communities, and third, were the or
the indigenous communities.
The Indio was a product of the advent of Spanish culture. This class was favored by the
Spaniards and was allowed certain status although below the Spaniards. The Moros and infieles
were regarded as the lowest classes.
The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven
from Manila and the Visayas to Mindanao; while the infieles, to the hinterlands. The Spaniards
did not pursue them into the deep interior. The upland societies were naturally outside the
immediate concern of Spanish interest, and the cliffs and forests of the hinterlands were difficult
and inaccessible, allowing the infieles, in effect, relative security. Thus, the infieles, which were
peripheral to colonial administration, were not only able to preserve their own culture but also
thwarted the Christianization process, separating themselves from the newly evolved Christian
community. Their own political, economic and social systems were kept constantly alive and
vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual
feeling of suspicion, fear, and hostility between the Christians on the one hand and the nonChristians on the other. Colonialism tended to divide and rule an otherwise culturally and
historically related populace through a colonial system that exploited both the virtues and vices
of the Filipinos.
President McKinley, in his instructions to the Philippine Commission of April 7, 1900,
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addressed the existence of the infieles:
“In dealing with the uncivilized tribes of the Islands, the Commission should adopt the
same course followed by Congress in permitting the tribes of our North American Indians
to maintain their tribal organization and government, and under which many of those tribes
are now living in peace and contentment, surrounded by civilization to which they are unable or
unwilling to conform. Such tribal government should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs.”
Placed in an alternative of either letting the natives alone or guiding them in the path of
civilization, the American government chose “to adopt the latter measure as one more in accord
with humanity and with the national conscience.”
The Americans classified the Filipinos into two: the Christian Filipinos and the nonChristian Filipinos. The term “non-Christian” referred not to religious belief, but to a
geographical area, and more directly, “to natives of the Philippine Islands of a low grade of
civilization, usually living in tribal relationship apart from settled communities.”
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they passed
Act No. 253 creating the Bureau of Non-Christian Tribes (BNCT). Under the Department of
the Interior, the BNCT’s primary task was to conduct ethnographic research among unhispanized
Filipinos, including those in Muslim Mindanao, with a “special view to determining the most
practicable means for bringing about their advancement in civilization and prosperity.” The
BNCT was modeled after the bureau dealing with American Indians. The agency took a
keen anthropological interest in Philippine cultural minorities and produced a wealth of valuable
materials about them.
The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The
raging issue then was the conservation of the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an “Act to effectuate in a more rapid
and complete manner the economic, social, moral and political advancement of the non-Christian
Filipinos or national cultural minorities and to render real, complete, and permanent the
integration of all said national cultural minorities into the body politic, creating the Commission
on National Integration charged with said functions.” The law called for a policy of
integration of indigenous peoples into the Philippine mainstream and for this purpose created
the Commission on National Integration (CNI). The CNI was given, more or less, the same
task as the BNCT during the American regime. The post-independence policy of integration
was like the colonial policy of assimilation understood in the context of a guardian-ward
relationship.
The policy of assimilation and integration did not yield the desired result. Like the Spaniards
and Americans, government attempts at integration met with fierce resistance. Since World
War II, a tidal wave of Christian settlers from the lowlands of Luzon and the Visayas swamped
the highlands and wide open spaces in Mindanao. Knowledge by the settlers of the Public
Land Acts and the Torrens system resulted in the titling of several ancestral lands in the
settlers’ names. With government initiative and participation, this titling displaced several
indigenous peoples from their lands. Worse, these peoples were also displaced by projects
undertaken by the national government in the name of national development.
It was in the 1973 Constitution that the State adopted the following provision:
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“The State shall consider the customs, traditions, beliefs, and interests of national cultural
communities in the formulation and implementation of State policies.”
For the first time in Philippine history, the “non-Christian tribes” or the “cultural
minorities” were addressed by the highest law of the Republic, and they were referred to as
“cultural communities.” More importantly this time, their “uncivilized” culture was given some
recognition and their “customs, traditions, beliefs and interests” were to be considered by the
State in the formulation and implementation of State policies. President Marcos abolished the
CNI and transferred its functions to the Presidential Adviser on National Minorities
(PANAMIN). The PANAMIN was tasked to integrate the ethnic groups that sought full
integration into the larger community, and at the same time “protect the rights of those who wish
to preserve their original lifeways beside the larger community.” In short, while still adopting
the integration policy, the decree recognized the right of tribal Filipinos to preserve their
way of life.
In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral
Lands Decree. The decree provided for the issuance of land occupancy certificates to members
of the national cultural communities who were given up to 1984 to register their claims. In 1979,
the Commission on the Settlement of Land Problems was created under E.O. No. 561 which
provided a mechanism for the expeditious resolution of land problems involving small settlers,
landowners, and tribal Filipinos.
Despite the promulgation of these laws, from 1974 to the early 1980’s, some 100,000 Kalingas
and Bontoks of the Cordillera region were displaced by the Chico River dam project of the
National Power Corporation (NPC). The Manobos of Bukidnon saw their land bulldozed by the
Bukidnon Sugar Industries Company (BUSCO). In Agusan del Sur, the National Development
Company was authorized by law in 1979 to take approximately 40,550 hectares of land that later
became the NDC-Guthrie plantation in Agusan del Sur. Most of the land was possessed by the
Agusan natives. Timber concessions, water projects, plantations, mining, and cattle ranching and
other projects of the national government led not only to the eviction of the indigenous peoples
from their land but also to the reduction and destruction of their natural environment.
The Aquino government signified a total shift from the policy of integration to one of
preservation. Invoking her powers under the Freedom Constitution, President Aquino created
the Office of Muslim Affairs, Office for Northern Cultural Communities and the Office for
Southern Cultural Communities all under the Office of the President.
The 1987 Constitution carries at least six (6) provisions which insure the right of tribal
Filipinos to preserve their way of life. This Constitution goes further than the 1973
Constitution by expressly guaranteeing the rights of tribal Filipinos to their ancestral
domains and ancestral lands. By recognizing their right to their ancestral lands and
domains, the State has effectively upheld their right to live in a culture distinctly their own.
1. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream.
They are non-Christians. They live in less accessible, marginal, mostly upland areas. They have a
system of self-government not dependent upon the laws of the central administration of the
Republic of the Philippines. They follow ways of life and customs that are perceived as different
from those of the rest of the population. The kind of response the indigenous peoples chose to
deal with colonial threat worked well to their advantage by making it difficult for Western
concepts and religion to erode their customs and traditions. The “infieles societies” which had
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become peripheral to colonial administration, represented, from a cultural perspective, a much
older base of archipelagic culture. The political systems were still structured on the patriarchal
and kinship oriented arrangement of power and authority. The economic activities were governed
by the concepts of an ancient communalism and mutual help. The social structure which
emphasized division of labor and distinction of functions, not status, was maintained. The
cultural styles and forms of life portraying the varieties of social courtesies and ecological
adjustments were kept constantly vibrant.
Land is the central element of the indigenous peoples’ existence. There is no traditional
concept of permanent, individual, land ownership. Among the Igorots, ownership of land more
accurately applies to the tribal right to use the land or to territorial control. The people are the
secondary owners or stewards of the land and that if a member of the tribe ceases to work, he
loses his claim of ownership, and the land reverts to the beings of the spirit world who are its true
and primary owners. Under the concept of “trusteeship,” the right to possess the land does not
only belong to the present generation but the future ones as well.
Customary law on land rests on the traditional belief that no one owns the land except the
gods and spirits, and that those who work the land are its mere stewards. Customary law has a
strong preference for communal ownership, which could either be ownership by a group of
individuals or families who are related by blood or by marriage, or ownership by residents of the
same locality who may not be related by blood or marriage. The system of communal ownership
under customary laws draws its meaning from the subsistence and highly collectivized mode of
economic production. The Kalingas, for instance, who are engaged in team occupation like
hunting, foraging for forest products, and swidden farming found it natural that forest areas,
swidden farms, orchards, pasture and burial grounds should be communally-owned. For the
Kalingas, everybody has a common right to a common economic base. Thus, as a rule, rights and
obligations to the land are shared in common.
Although highly bent on communal ownership, customary law on land also sanctions
individual ownership. The residential lots and terrace rice farms are governed by a limited
system of individual ownership. It is limited because while the individual owner has the right to
use and dispose of the property, he does not possess all the rights of an exclusive and full owner
as defined under our Civil Code. Under Kalinga customary law, the alienation of individuallyowned land is strongly discouraged except in marriage and succession and except to meet sudden
financial needs due to sickness, death in the family, or loss of crops. Moreover, and to be
alienated should first be offered to a clan-member before any village-member can purchase it,
and in no case may land be sold to a non-member of the ili.
Land titles do not exist in the indigenous peoples’ economic and social system. The
concept of individual land ownership under the civil law is alien to them. Inherently
colonial in origin, our national land laws and governmental policies frown upon indigenous
claims to ancestral lands. Communal ownership is looked upon as inferior, if not inexistent.
xxx
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but
to a Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes the
indigenous concept of ownership of the ICCs/IPs over their ancestral domain. Thus:
“Sec. 5. Indigenous concept of ownership. — Indigenous concept of ownership sustains the
view that ancestral domains and all resources found therein shall serve as the material bases of
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their cultural integrity. The indigenous concept of ownership generally holds that ancestral
domains are the ICCs/IPs private but community property which belongs to all generations and
therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional
resource rights.”
The right of ownership and possession of the ICCs/IPs to their ancestral domains is held
under the indigenous concept of ownership. This concept maintains the view that ancestral
domains are the ICCs/ IPs private but community property. It is private simply because it
is not part of the public domain. But its private character ends there. The ancestral domain
is owned in common by the ICCs/IPs and not by one particular person. The IPRA itself
provides that areas within the ancestral domains, whether delineated or not, are presumed to be
communally held. These communal rights, however, are not exactly the same as coownership rights under the Civil Code. Co-ownership gives any co-owner the right to demand
partition of the property held in common. The Civil Code expressly provides that “[n]o co-owner
shall be obliged to remain in the co-ownership.” Each co-owner may demand at any time the
partition of the thing in common, insofar as his share is concerned. To allow such a right over
ancestral domains may be destructive not only of customary law of the community but of the
very community itself.
Communal rights over land are not the same as corporate rights over real property,
much less corporate condominium rights. A corporation can exist only for a maximum of fifty
(50) years subject to an extension of another fifty years in any single instance. Every stockholder
has the right to disassociate himself from the corporation. Moreover, the corporation itself may
be dissolved voluntarily or involuntarily.
Communal rights to the land are held not only by the present possessors of the land but
extends to all generations of the ICCs/IPs, past, present and future, to the domain. This is
the reason why the ancestral domain must be kept within the ICCs/IPs themselves. The domain
cannot be transferred, sold or conveyed to other persons. It belongs to the ICCs/IPs as a
community.
Ancestral lands are also held under the indigenous concept of ownership. The lands are
communal. These lands, however, may be transferred subject to the following limitations: (a)
only to the members of the same ICCs/IPs; (b) in accord with customary laws and traditions; and
(c) subject to the right of redemption of the ICCs/IPs for a period of 15 years if the land was
transferred to a non-member of the ICCs/IPs.
Following the constitutional mandate that “customary law govern property rights or relations
in determining the ownership and extent of ancestral domains,” the IPRA, by legislative fiat,
introduces a new concept of ownership. This is a concept that has long existed under
customary law.
Custom, from which customary law is derived, is also recognized under the Civil Code as
a source of law. Some articles of the Civil Code expressly provide that custom should be applied
in cases where no codal provision is applicable. In other words, in the absence of any applicable
provision in the Civil Code, custom, when duly proven, can define rights and liabilities.
Customary law is a primary, not secondary, source of rights under the IPRA and uniquely
applies to ICCs/IPs. Its recognition does not depend on the absence of a specific provision in
the civil law. The indigenous concept of ownership under customary law is specifically
acknowledged and recognized, and coexists with the civil law concept and the laws on land
titling and land registration.
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To be sure, the indigenous concept of ownership exists even without a paper title. The
CADT is merely a “formal recognition” of native title. This is clear from Section 11 of the IPRA,
to wit:
“Sec. 11. Recognition of Ancestral Domain Rights. — The rights of ICCs/IPs to their ancestral
domains by virtue of Native Title shall be recognized and respected. Formal recognition, when
solicited by ICCs/IPs concerned shall be embodied in a Certificate of Ancestral Domain Title,
which shall recognize the title of the concerned ICCs/IPs over the territories identified and
delineated.”
The moral import of ancestral domain, native land or being native is “belongingness” to the
land, being people of the land — by sheer force of having sprung from the land since time
beyond recall, and the faithful nurture of the land by the sweat of one’s brow. This is fidelity of
usufructuary relation to the land — the possession of stewardship through perduring, intimate
tillage, and the mutuality of blessings between man and land; from man, care for land; from the
land, sustenance for man.
xxx
CONCLUSION
The struggle of the Filipinos throughout colonial history had been plagued by ethnic and
religious differences. These differences were carried over and magnified by the Philippine
government through the imposition of a national legal order that is mostly foreign in origin or
derivation. Largely unpopulist, the present legal system has resulted in the alienation of a large
sector of society, specifically, the indigenous peoples. The histories and cultures of the indigenes
are relevant to the evolution of Philippine culture and are vital to the understanding of
contemporary problems. It is through the IPRA that an attempt was made by our legislators to
understand Filipino society not in terms of myths and biases but through common experiences in
the course of history. The Philippines became a democracy a centennial ago and the
decolonization process still continues. If the evolution of the Filipino people into a democratic
society is to truly proceed democratically, i.e., if the Filipinos as a whole are to participate fully
in the task of continuing democratization, it is this Court’s duty to acknowledge the presence of
indigenous and customary laws in the country and affirm their co-existence with the land laws in
our national legal system.
With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous
Peoples Rights Act of 1997.
ON JUDICIAL ETHICS AND PARANORMAL BELIEF IN ELEMENTALS
OFFICE OF THE COURT ADMINISTRATOR v. JUDGE FLORENTINO V. FLORO, JR.
(A.M. No. RTJ-99-1460, March 31, 2006)
CHICO-NAZARIO, J.:
xxx
There is no indication that Judge Floro is anything but an honorable man. And, in fact, in our
disposition of the 13 charges against him, we have not found him guilty of gross misconduct or
acts or corruption. However, the findings of psychosis by the mental health professionals
assigned to his case indicate gross deficiency in competence and independence.
Moreover, Judge Floro himself admitted that he believes in “psychic visions,” of foreseeing
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the future because of his power in “psychic phenomenon.” He believes in “duwendes” and of a
covenant with his “dwarf friends Luis, Armand and Angel.” He believes that he can write while
on trance and that he had been seen by several people to have been in two places at the same
time. He has likened himself to the “angel of death” who can inflict pains on people, especially
upon those he perceived as corrupt officials of the RTCs of Malabon. He took to wearing blue
robes during court sessions, switching only to black on Fridays. His own witness testified that
Judge Floro explained that he wore black from head to foot on Fridays to recharge his psychic
powers. Finally, Judge Floro conducted healing sessions in his chambers during his break time.
All these things validate the findings of the Supreme Court Clinic about Judge Floro’s
uncommon beliefs and that such beliefs have spilled over to action.
Lest we be misconstrued, we do not denigrate such belief system. However, such beliefs,
especially since Judge Floro acted on them, are so at odds with the critical and impartial thinking
required of a judge under our judicial system.
Psychic phenomena, even assuming such exist, have no place in a judiciary duty bound to
apply only positive law and, in its absence, equitable rules and principles in resolving
controversies. Thus, Judge Floro’s reference to psychic phenomena in the decision he rendered in
the case of People v. Francisco, Jr. sticks out like a sore thumb. In said decision, Judge Floro
discredited the testimony of the prosecution’s principal witness by concluding that the testimony
was a “fairytale” or a “fantastic story.” He then went to state that “psychic phenomena” was
destined to cooperate with the stenographer who transcribed the testimony of the witness.
ON THE UNBORN FROM CONCEPTION
JAMES IMBONG AND LOVELY-ANN IMBONG v. HON. PAQUITO OCHOA, ET AL.
(G.R. No. 204819, April 8, 2014)
MENDOZA, J.:
xxx
It is a universally accepted principle that every human being enjoys the right to life. Even if
not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III
of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the
Philippines is not of recent vintage. From the enactment of R.A. No. 4729, entitled “An Act To
Regulate The Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices” on
June 18, 1966, prescribing rules on contraceptive drugs and devices which prevent fertilization,
to the promotion of male vasectomy and tubal ligation, and the ratification of numerous
international agreements, the country has long recognized the need to promote population control
through the use of contraceptives in order to achieve long-term economic development. Through
the years, however, the use of contraceptives and other family planning methods evolved from
being a component of demographic management, to one centered on the promotion of public
health, particularly, reproductive health.
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This has resulted in the enactment of various measures promoting women’s rights and health
and the overall promotion of the family’s wellbeing. Thus, aside from R.A. No. 4729, R.A. No.
6365 or “The Population Act of the Philippines” and R.A. No. 9710, otherwise known as the
“The Magna Carta of Women” were legislated. Notwithstanding this paradigm shift, the
Philippine national population program has always been grounded two cornerstone principles:
“principle of no-abortion” and the “principle of non-coercion.” As will be discussed later,
these principles are not merely grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and guarantee religious
freedom.
When Life Begins
Majority of the Members of the Court are of the position that the question of when life begins
is a scientific and medical issue that should not be decided, at this stage, without proper hearing
and evidence. During the deliberation, however, it was agreed upon that the individual members
of the Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase
of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother
and the life of the unborn from conception. The natural and primary right and duty of parents
in the rearing of the youth for civic efficiency and the development of moral character shall
receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception. This is
undisputable because before conception, there is no unborn to speak of. For said reason, it is no
surprise that the Constitution is mute as to any proscription prior to conception or when life
begins. The problem has arisen because, amazingly, there are quarters who have conveniently
disregarded the scientific fact that conception is reckoned from fertilization. They are waving the
view that life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with
“fertilization” of the female ovum by the male sperm. On the other side of the spectrum are those
who assert that conception refers to the “implantation” of the fertilized ovum in the uterus.
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted
in their plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar
Council:
One of the primary and basic rules in statutory construction is that where the words of a statute
are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional construction that the
language employed in the Constitution must be given their ordinary meaning except where
technical terms are employed. As much as possible, the words of the Constitution should be
understood in the sense they have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates the power of the courts to alter it,
based on the postulate that the framers and the people mean what they say. Verba legis non est
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recedendum — from the words of a statute there should be no departure.
The raison d’ etre for the rule is essentially two-fold: First, because it is assumed that the
words in which constitutional provisions are couched express the objective sought to be attained;
and second, because the Constitution is not primarily a lawyer’s document but essentially that of
the people, in whose consciousness it should ever be present as an important condition for the
rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word “conception”
which, as described and defined by all reliable and reputable sources, means that life begins at
fertilization.
Webster’s Third New International Dictionary describes it as the act of becoming pregnant,
formation of a viable zygote; the fertilization that results in a new entity capable of developing
into a being like its parents. Black’s Law Dictionary gives legal meaning to the term
“conception” as the fecundation of the female ovum by the male spermatozoon resulting in
human life capable of survival and maturation under normal conditions.
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano, it was
written:
Life is not synonymous with civil personality. One need not acquire civil personality first
before he/she could die. Even a child inside the womb already has life. No less than the
Constitution recognizes the life of the unborn from conception, that the State must protect
equally with the life of the mother. If the unborn already has life, then the cessation thereof even
prior to the child being delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart, Justice Anthony Kennedy, writing for the US Supreme Court, said
that the State “has respect for human life at all stages in the pregnancy” and “a legitimate and
substantial interest in preserving and promoting fetal life.” Invariably, in the decision, the fetus
was referred to, or cited, as a baby or a child.
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers
regarding the term “conception” used in Section 12, Article II of the Constitution. From their
deliberations, it clearly refers to the moment of “fertilization.” The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
“The State shall equally protect the life of the mother and the life of the unborn from the
moment of conception.”
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by
the sperm that there is human life x x x.
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life,
it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that
needs to be answered is:
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Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is alive.
First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in the continuous process of cell division. All these
processes are vital signs of life. Therefore, there is no question that biologically the fertilized
ovum has life.
The second question: Is it human? Genetics gives an equally categorical “yes.” At the moment
of conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes
from the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes.
A chromosome count of 46 is found only — and I repeat, only in human cells. Therefore, the
fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized
ovum is both alive and human, then, as night follows day, it must be human life. Its nature is
human.
Why the Constitution used the phrase “from the moment of conception” and not “from the
moment of fertilization” was not because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase “from the moment of conception” was described by us here
before with the scientific phrase “fertilized ovum” may be beyond the comprehension of some
people; we want to use the simpler phrase “from the moment of conception.”
Thus, in order to ensure that the fertilized ovum is given ample protection under the
Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word “unborn” is sufficient for the purpose of writing a
Constitution, without specifying “from the moment of conception.”
Mr. Davide: I would not subscribe to that particular view because according to the
Commissioner’s own admission, he would leave it to Congress to define when life begins. So,
Congress can define life to begin from six months after fertilization; and that would really be
very, very, dangerous. It is now determined by science that life begins from the moment of
conception. There can be no doubt about it. So we should not give any doubt to Congress,
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that
is one of the questions I was going to raise during the period of interpellations but it has been
expressed already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the
moment of conception.
When it speaks of “from the moment of conception,” does this mean when the egg meets
the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the socalled contraceptives deter the rooting of the ovum in the uterus. If fertilization has already
occurred, the next process is for the fertilized ovum to travel towards the uterus and to take root.
What happens with some contraceptives is that they stop the opportunity for the fertilized
ovum to reach the uterus. Therefore, if we take the provision as it is proposed, these so
215
called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient
and, therefore, would be unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether
or not these certain contraceptives are abortifacient. Scientifically and based on the provision
as it is now proposed, they are already considered abortifacient.
From the deliberations above-quoted, it is apparent that the Framers of the Constitution
emphasized that the State shall provide equal protection to both the mother and the unborn child
from the earliest opportunity of life, that is, upon fertilization or upon the union of the male
sperm and the female ovum. It is also apparent is that the Framers of the Constitution intended
that to prohibit Congress from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas,
spearheading the need to have a constitutional provision on the right to life, recognized that the
determination of whether a contraceptive device is an abortifacient is a question of fact which
should be left to the courts to decide on based on established evidence. From the discussions
above, contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and
thus prohibited. Conversely, contraceptives that actually prevent the union of the male sperm and
the female ovum, and those that similarly take action prior to fertilization should be deemed
non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx xxx
Mr. Gascon: x x x x. As I mentioned in my speech on the US bases, I am pro-life, to the point
that I would like not only to protect the life of the unborn, but also the lives of the millions of
people in the world by fighting for a nuclear-free world. I would just like to be assured of the
legal and pragmatic implications of the term “protection of the life of the unborn from the
moment of conception.” I raised some of these implications this afternoon when I interjected in
the interpellation of Commissioner Regalado. I would like to ask that question again for a
categorical answer.
I mentioned that if we institutionalize the term “the life of the unborn from the moment of
conception” we are also actually saying “no,” not “maybe,” to certain contraceptives which are
already being encouraged at this point in time. Is that the sense of the committee or does it
disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive.
There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives,
such as the intra-uterine device which actually stops the egg which has already been fertilized
from taking route to the uterus. So if we say “from the moment of conception,” what really
occurs is that some of these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it was conceded that tubal ligation, vasectomy, even
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condoms are not classified as abortifacients.
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am
discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it’s not, I have to admit it’s not an abortifacient, Your Honor.
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby’s Medical,
Nursing, and Allied Health Dictionary defines conception as “the beginning of pregnancy
usually taken to be the instant a spermatozoon enters an ovum and forms a viable zygote.” It
describes fertilization as “the union of male and female gametes to form a zygote from which the
embryo develops.”
The Textbook of Obstetrics (Physiological & Pathological Obstetrics), used by medical
schools in the Philippines, also concludes that human life (human person) begins at the moment
of fertilization with the union of the egg and the sperm resulting in the formation of a new
individual, with a unique genetic composition that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: “Human development
begins after the union of male and female gametes or germ cells during a process known as
fertilization (conception). Fertilization is a sequence of events that begins with the contact of a
sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their
217
pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to
form a new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the
beginning, or primordium, of a human being.”
The authors of Human Embryology & Teratology mirror the same position. They wrote:
“Although life is a continuous process, fertilization is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is thereby formed. . . . The
combination of 23 chromosomes present in each pronucleus results in 46 chromosomes in the
zygote. Thus the diploid number is restored and the embryonic genome is formed. The embryo
now exists as a genetic unity.”
In support of the RH Bill, The Philippine Medical Association came out with a “Paper on the
Reproductive Health Bill (Responsible Parenthood Bill)” and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA
maintains its strong position that fertilization is sacred because it is at this stage that
conception, and thus human life, begins. Human lives are sacred from the moment of
conception, and that destroying those new lives is never licit, no matter what the purported
good outcome would be. In terms of biology and human embryology, a human being begins
immediately at fertilization and after that, there is no point along the continuous line of human
embryogenesis where only a “potential” human being can be posited. Any philosophical, legal,
or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the
life of a new human being commences at a scientifically well defined “moment of conception.”
This conclusion is objective, consistent with the factual evidence, and independent of any
specific ethical, moral, political, or religious view of human life or of human embryos.
Conclusion: The Moment of Conception is Reckoned from Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and
more importantly, following the intention of the Framers of the Constitution, the undeniable
conclusion is that a zygote is a human organism and that the life of a new human being
commences at a scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman
that life begins at implantation. According to him, “fertilization and conception are two distinct
and successive stages in the reproductive process. They are not identical and synonymous.”
Citing a letter of the WHO, he wrote that “medical authorities confirm that the implantation of
the fertilized ovum is the commencement of conception and it is only after implantation that
pregnancy can be medically detected.”
This theory of implantation as the beginning of life is devoid of any legal or scientific
mooring. It does not pertain to the beginning of life but to the viability of the fetus. The fertilized
ovum/zygote is not an inanimate object — it is a living human being complete with DNA and
46 chromosomes. Implantation has been conceptualized only for convenience by those who had
population control in mind. To adopt it would constitute textual infidelity not only to the RH
Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug
218
or device that would prevent the implantation of the fetus at the uterine wall. It would be
provocative and further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes — abortion and abortifacients.
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Table of Contents
COVER PAGE
TITLE PAGE
COPYRIGHT PAGE
PREFACE
CONTENTS
CHAPTER I: THE CASE FOR LAW
I. LEGAL WISDOM AND COUNSEL
II. LAW’S LIKES AND UNLIKE
III. SHOULD LAWYERS CAST THE PHILOSOPHER’S STONE?
CHAPTER I: CASE READINGS
CHAPTER II: LEGAL ISSUES AND THEORIES
I. THE FOUR ELEMENTS
II. SPECIES OF HUMAN LAW
III. MAIN ISSUES IN LAW
III. LEGAL THEORIES
CHAPTER II: CASE READINGS
CHAPTER III: NATURAL LAW, INTERNATIONAL
LAW, AND THE CLASSIC PHILOSOPHERS
I. THE NATURE OF MANKIND
II. WRESTLING FOR IDEAL LAW
III. ARISTOTLE ON RATIONAL LAW
III. THE STOICS ON JUS NATURALE
IV. AQUINAS ON NATURAL INCLINATIONS
V. ENLIGHTENMENT PHILOSOPHERS ON NATURAL RIGHTS
VI. NATURAL LAW AS THE LAW OF NATIONS
CHAPTER III: CASE READINGS
CHAPTER IV: CIVIL LAW: THE ROMAN JURISTS
I. ROMAN LAW: ALL CODES LEAD TO ROME
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2
3
4
6
8
13
13
14
15
17
20
20
22
24
36
46
59
59
61
62
64
65
66
67
69
92
92
II. BREAKING THE CODE
III. LATIN MAXIMS
CHAPTER IV: CASE READINGS
CHAPTER V: CRIMINAL LAW AND FAMILY LAW:
THE CHRISTIAN PHILOSOPHERS
I. AQUINAS ON CRIME AND PUNISHMENT
II. WOJTYLA’S TALKS ABOUT SEX
III. DOVETAILING OF CHURCH AND STATE
CHAPTER V: CASE READINGS
CHAPTER VI: LEX MERCATORIA: FROM CUSTOM
TO LAW
CHAPTER VI: CASE READINGS
CHAPTER VII: REMEDIAL LAW: THE EMPIRICAL
PHILOSOPHERS
I. BACON’S INDUCTIVE JURISPRUDENCE
II. EXHUMING THE EVIDENCE: HUME’S PRESUMPTIONS
AND PROBABILITIES
CHAPTER VII: CASE READINGS
CHAPTER VIII: POLITICAL LAW: REFORM,
REVOLUTION, AND RESISTANCE THE NEOCLASSICAL PHILOSOPHERS
I. MACHIAVELLI: THE BREACH AND THE PRACTICE OF
POLITICS
II. HOBBES ON SOVEREIGN IMMUNITY
III. THOMAS MORE ON REPUBLICANISM AND THE FAMILY
AS THE BASIC UNITY OF SOCIETY
IV. UNLOCKING INALIENABLE RIGHTS
V. ROUSING MAN TO BE FREE
VI. THE “MILL” OF HAPPINESS AND LIBERTY
VII. CIVIL DISOBEDIENCE AS A DUTY
CHAPTER VIII: CASE READINGS
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103
116
119
120
122
124
126
138
142
145
145
146
148
151
152
153
155
157
159
160
162
164
CHAPTER IX: LABOR LAW: SOCIALISM AND
COMMUNISM
CHAPTER IX: CASE READINGS
CHAPTER X: EVERYONE “IN”: POSTMODERNISM
AND THE FUTURE OF LAW
I. FEMINISM, SO SHE SAYS
II. FOUCAULT ON “OTHER”
III. GOING GREEN: PHILOSOPHY OF ECOLOGY
IV. LAW, QUO VADIS?
CHAPTER X: CASE READINGS
CHAPTER XI: THE “X” FACTORS OF PHILIPPINE
LEGAL PARADIGM
CHAPTER XI: CASE READINGS
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187
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