Common-Civil Compared
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Distinctive characteristics

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Role of judges
Sources of law
Place of legislative law (statutes, codes)
Hybrids: Civil law with common law grafting

The Philippines

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common law overlay
Puerto Rico

civil law reassertion
In re Shoop
(Sup Ct Philippines 1920)
Shoop, a licensed New York
lawyer with 5 years experience,
applied to the Philippine bar.
 What was required under
Filipino court rules?
 What does New York law
say?
 Does the Filipino court
want to put on “American”?
In re Shoop
(Sup Ct Philippines 1920)
New York bar admission rules:
“Admission without examination for … persons admitted
… in another country whose jurisprudence is based on
principles of the English common law.”


Is New York law based on “principles of English common
law”? [Valeria; what is English common law?]
What about North Carolina law? Louisiana law? What is
“common law”?
In re Shoop
(Sup Ct Philippines 1920)
New York:

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Common Law of England was
colonial law and continues
“constantly improving science
… system of legal logic”
Even though statutes “very
large proportion” / tendency
toward codification
Anglo-American jurisprudence
displaces old English cases
Louisiana:
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Originally French pre-code
law
1769-1803: Spanish law (by
treaty) with French traditions
1808: Civil Code (revised
subsequently)

Spanish, French sources

Roots in Roman law
legislation adopts English
procedure (as of 1805)
Application of common law
methods (custom vs. code)
In re Shoop
(Sup Ct Philippines 1920)
New York:




Common Law of England was
colonial law and continues
“constantly improving science
… system of legal logic”
Even though statutes “very
large proportion” / tendency
toward codification
Anglo-American jurisprudence
displaces old English cases
Louisiana:


[Valeria: What does Wagner v.
Kenner say about La?]
[Valeria: after Katrina, will
litigation follow common law
or civil law approach?]
History of Philippines

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
14th century Malay traders
introduce Islam and create
Muslim principalities
1521 Portuguese Ferdinand
Magellan reaches islands, but
killed in battle with islanders.
1536 Philippines named after
Charles V's son (later Philip II
of Spain) by Spanish navigator
Ruy Lopez de Villalobos.
1565 Philippines conquered by
Spanish army led by Miguel
Lopez de Lagazpi.
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1571 Manila made capital, part
Viceroyalty of Mexico.
17th C. Spanish missionaries
convert lowland population to
Roman Catholicism.
1763 British occupy Manila.
1834 End of Spanish trade
monopoly / British, American
merchants bring sugar,tobacco.
1896-97 Emilio Aguinaldo
leads revolt against Spanish
rule.
History of Philippines

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1898 Spanish-American War
US navy destroys Spanish fleet
in Manila Bay / Spain cedes
Philippines to USA.
1898-1901 Nationalist uprising
suppressed by US troops
200,000 Filipinos killed.
1907 Americans set up elected
legislative assembly.
1916 Bicameral legislature
introduced based on US model.
1935 Philippines gain internal
self-government with Manuel
Quezon as president.
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1942-45 Occupied by Japan.
1946 Philippines achieves
independence from USA under
President Manuel Roxas /
USA retained military bases
1957-61 President Carlos
Garca introduces Filipino First
policy to reduce US/Chinese
economic power / official
corruption increases.
1972 President Ferdinand
Marcos declares martial law /
diverts foreign loans to
personal use.
History of Philippines

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1981 Marcos retains sweeping
emergency powers to combat
long-running Muslim and
communist insurgencies.
1983 Opposition leader
Benigno Aquino murdered at
Manila airport
1986 His widow Corazon
Aquino uses people's power to
force Marcos to flee country.
1987 Freedom constitution
1989 Sixth coup attempt
suppressed with US aid.
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1991 Philippine senate calls
for US withdrawal / rejects US
renewal of Subic Bay naval
base lease.
1992 Fidel Ramos elected to
succeed Aquino.
1995 Imelda Marcos elected to
the House of Representatives
while on bail from prison on a
sentence for corruption.
2001 Estrada impeachment
trial suspended after senators
block evidence. Estrada leaves
after public demonstrations
In re Shoop
(Sup Ct Philippines 1920)
Philippines: What happened after US acquisition?
 Not adopt Anglo-American common law

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Judicial system based on US model [Ryan: “safety net”?]



But Filipino laws imposed by US occupation subject to Common
Law interpretation
But Filipino cases refer to US court decisions / US judicial
interpretation of similar statutes
Development of Philippine common law
Use Anglo-American precedents to interpret Spanish codes
What is basis of law? [Valeria: Justinian Corpus Juris
Civilis?]
In re Shoop
(Sup Ct Philippines 1920)
US (new sovereign):
 Occupation authority adopts Spanish codes–



Required by international law?
What if inconsistent with US Constitution and
principles?
Role of Filipino judges –


In interpreting and applying law?
In making law?
In re Shoop
(Sup Ct Philippines 1920)
Spanish Codes in the Philippines:
 How interpret and apply?



No stare decisis (jurisprudencia) *
“Judicial decisions cannot be resorted to” / lower court can
disregard higher court decisions *
Judge-made law?


Las Siete Partidas: Judge can refer to custom (fueros and
costumbres), judicial decision or “general principles” (doctrina)
only when no written law on point
Hierarchy may vary
In re Shoop
(Sup Ct Philippines 1920)
What does Filipino court hold?
“The fact that prolific use of Anglo-American authorities is made in
the decisions of this court, combined with the fact that the available
sources for study and reference on legal theories are mostly AngloAmerican … there has been developed and will continue … a
Philippine Common Law based on the English Common Law in its
present form of an Anglo-American Common Law.”


Why did the Court go into such detail?
Does this mean seasoned Filipino lawyers can practice in
New York?
In re Shoop
(Sup Ct Philippines 1920)
Is the Philippines a “common law jurisdiction”:


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
Would a Filipino lawyer be comfortable with US legal theories, rules,
procedures and techniques?
What is educational/professional background of the current judges of
the Philippines Supreme Court?



Filipino law is mostly based on Spanish codes (not judge-made rules)
Written laws are to be interpreted and applied using “developed civil
law theories”
[Ryan: why is legal education strongest indicia of legal tradition?]
[David: What is law school at Arrellano School of Law like? Would
ABA accredit?]
Would you be comfortable practicing in the Philippines?
In re Shoop
(Sup Ct Philippines 1920)
Philippines Supreme Court:

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Chief Justice: Hilario G. Davide, Jr. (UP College of Law)
REYNATO S. PUNO (UP; MCL - SMU, LLM – Berkeley, SJD – Illinois)
JOSE C. VITUG (unnamed law school)
ARTEMIO V. PANGANIBAN (unnamed / 5 children “pedigreed US universities”)
LEONARDO A. QUISUMBING (UP– Fulbright visit to Harvard, Yale, Georgetown)
CONSUELO YÑARES-SANTIAGO (UP– panel with Ruth Bader Ginsburg)
ANGELINA SANDOVAL-GUTIERREZ (Santo Tomas / Courses at Harvard)
ANTONIO T. CARPIO (UP)
MA. ALICIA AUSTRIA-MARTINEZ (UP / Harvard course for judges)
RENATO C. CORONA (Santo Tomas / LLM – Harvard)
CONCHITA CARPIO-MORALES (UP)
ROMEO J. CALLEJO, SR (San Beda / conference in Madrid, Spain)
DANTE O. TINGA (East College of Law / LLM – Berkeley)
In re Shoop
(Sup Ct Philippines 1920)
History of the Philippines Supreme Court:
 Predecessor: Royal Audiencia (est. 1583)
 5-member tribunal below only Consejo de Indias
 Judicial and administrative functions
 Audiencia Territorial de Manila (1815)
 number of justices increased
 two branches, civil and criminal
 decisions appealable to Sup Ct of Spain in Madrid
In re Shoop
(Sup Ct Philippines 1920)
History of the Philippines Supreme Court:
 US occupation
 military government suspends criminal jurisdiction (1898)
 Re-establish Audiencia - jurisdiction over civil and criminal
cases compatible with US sovereignty (1899)
 Audiencia abolished and Supreme Court established (1901)
 Phillipine Bill (1902)
 US Congress reaffirms structure
 membership of nine
 Filipino chief justice, but majority Americans (1901-1935)
In re Shoop
(Sup Ct Philippines 1920)
History of the Philippines Supreme Court:
 Commonwealth (1935)
 Filipinization of court
 Membership increased to 11 (later to 15 in 1973)
 Marcos overthrown
 Corazon Aquino Freedom Constitution (1986)
 Constitution – “one Supreme Court and in such lower courts
as may be established by law” (1987)
Common-Civil Compared
Puerto Rico
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1898-1914: reception of US
law
1915-1943: consolidation of
US law
1941-1952: search for new
direction
1952-1973: revitalization of
civil law tradition
1973-present: civilian
intensification
Puerto Rico: The Trials of the Oldest Colony
in the World by Jose Trias Monge
Although Puerto Rico is
technically a territory of the United
States, José Trias Monge prefers
the unvarnished term "colony" to
describe his homeland's difficult
position. Spain ceded control of the
island to the United States more
than 100 years ago, and in that time
Washington has continually
avowed its desire to respect the
wishes of the Puerto Ricans while
systematically limiting its
sovereignty.
Puerto Rico: The Trials of the Oldest Colony
in the World by Jose Trias Monge
Only three options remain to
the island: Puerto Rico can
remain a territory, become an
independent nation, or join the
U.S. as the 51st state. Yet
frequent plebiscites held in the
territory have resolved nothing.
Though Monge is quick to
point out how Puerto Rico has
benefited from its relationship
with the U.S., he is
unwavering in his support of
the idea that "Nobody has the
right to govern another: it is as
simple as that."
[David: What if the US
subsidizes the island?
Valle v. American Intl Insu Co
(Sup Ct PR 1979)
Five cars stood in line. A sixth car hit the last
car in line, beginning a chain reaction. The driver
of Car2 sues the driver of Car3 – go figure.
Driver2 says Driver3 was negligent by being
2-3 feet behind his car – absurd, no?
Car2 was pushed into Car1, which was 8-10
feet ahead – why is this relevant?
What does the law say?
Valle v. American Intl Insu Co
(Sup Ct PR 1979)
Vehicle and Traffic Law of Puerto Rico:
“No parking or standing less than three feet from another vehicle”


Assuming Driver3 was negligent in “standing” her Car3
too close to Car2, is that enough?
Was Driver3 the cause of the injuries to Driver 2? What
law applies?
Valle v. American Intl Insu Co
(Sup Ct PR 1979)
PR Civil Code:
“A person who by an act or
omission causes damage to
another through fault or
negligence shall be obliged
to repair the damage so
done.”


What does this mean?
Where should a Puerto
Rican court look ?
Sources of law –
1.
Puerto Rican traffic code
2.
Spanish traffic code
3.
Puerto Rican civil code
4.
Spanish civil code
5.
Spanish “doctrine”
6.
Spanish “jurisprudence”
7.
Italian case law
8.
North American case law
[Ryan: What about heritage?]
[David: What about law school?]
Valle v. American Intl Insu Co
(Sup Ct PR 1979)
Sources of law –
 “We have to resort to art. 1802 of our Civil Code, which is equivalent
to art. 1902 of Spain.”
 “the general principles are well known … causal connection must exit
between the wrongful act and the damage sustained.” J Santos Briz,
Derecho Privado, Madrid 1963”
 Spanish case law “has repeatedly held … causal relation can be
interrupted if conscious, intentional or unlawful”
 The Italian Court of Cassation “decided that in controversies of this
nature only the last vehicle is liable for a chain collision between
standing vehicles. Cass., 1976, cited in …”
 “to illustrate, we note the North American viewpoint … Illinois,
Kansas, Rhode Island, New Hampshire”
Valle v. American Intl Insu Co
(Sup Ct PR 1979)
Sources of law –
 “We have to resort to art. 1802 of our Civil Code, which is equivalent
to art. 1902 of Spain.”
 “the general principles are well known … causal connection must exit
between the wrongful act and the damage sustained.” J Santos Briz,
Derecho Privado, Madrid 1963”
 Spanish case law “has repeatedly held … causal relation can be
interrupted if conscious, intentional or unlawful”
 The Italian Court of Cassation “decided that in controversies of this
nature only the last vehicle is liable for a chain collision between
standing vehicles. Cass., 1976, cited in …”
 “to illustrate, we note the North American viewpoint … Illinois,
Kansas, Rhode Island, New Hampshire”
Valle v. American Intl Insu Co
(Sup Ct PR 1979)
Sources of law –
 “We have to resort to art. 1802 of our Civil Code, which is equivalent
to art. 1902 of Spain.”
 “the general principles are well known … causal connection must exit
between the wrongful act and the damage sustained.” J Santos Briz,
Derecho Privado, Madrid 1963”
 Spanish case law “has repeatedly held … causal relation can be
interrupted if conscious, intentional or unlawful”
 The Italian Court of Cassation “decided that in controversies of this
nature only the last vehicle is liable for a chain collision between
standing vehicles. Cass., 1976, cited in …”
 “to illustrate, we note the North American viewpoint … Illinois,
Kansas, Rhode Island, New Hampshire”
Valle v. American Intl Insu Co
(Sup Ct PR 1979)
Sources of law –
 “We have to resort to art. 1802 of our Civil Code, which is equivalent
to art. 1902 of Spain.”
 “the general principles are well known … causal connection must exit
between the wrongful act and the damage sustained.” J Santos Briz,
Derecho Privado, Madrid 1963”
 Spanish case law “has repeatedly held … causal relation can be
interrupted if conscious, intentional or unlawful”
 The Italian Court of Cassation “decided that in controversies of this
nature only the last vehicle is liable for a chain collision between
standing vehicles. Cass., 1976, cited in …”
 “to illustrate, we note the North American viewpoint … Illinois,
Kansas, Rhode Island, New Hampshire”
Valle v. American Intl Insu Co
(Sup Ct PR 1979)
Sources of law –
 “We have to resort to art. 1802 of our Civil Code, which is equivalent
to art. 1902 of Spain.”
 “the general principles are well known … causal connection must exit
between the wrongful act and the damage sustained.” J Santos Briz,
Derecho Privado, Madrid 1963”
 Spanish case law “has repeatedly held … causal relation can be
interrupted if conscious, intentional or unlawful”
 The Italian Court of Cassation “decided that in controversies of this
nature only the last vehicle is liable for a chain collision between
standing vehicles. Cass., 1976, cited in …”
 “to illustrate, we note the North American viewpoint … Illinois,
Kansas, Rhode Island, New Hampshire”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain”
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain” Ph
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain”
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain”
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.” Ph
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain”
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain”
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms” Ph
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain”
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain”
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.” PR
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain”
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.”
Common-Civil Compared
Which is true – in the Philippines, in Puerto Rico?
 “American doctrines and theories must control the court … even in the
construction of the law of Spain”
 “We are always inclined to adduce the doctrines of American
jurisprudence, considering them more progressive.”
 “Common law administration of a Roman code will result in a system
Anglo-American in substance and Roman-Spanish in its terms”
 “All cases cited which tend to solve civil-law problems through
common-law principles are reversed.”
 “In appropriate cases, Anglo-American common law shall lie as a point
of reference for comparative law.” PR