CHAPTER 1

THE WHAT, HOW AND WHY OF HISTORY

What is history? How do we do history? Why do we need to study history, particularly Philippine
history? Why this textbook on Philippine history? These are the questions this short introduction
aims to elaborate modestly in a simplified manner.

What is history?
Like any other academic disciples, there are as many definitions as there many theories on history.
What is common, however, is the idea that the study of history is a systematic study of the past. One
cannot do history in the future or if the event has not yet being unfolded by historical actors.
Nevertheless, history is not merely the record of past events: it is “the record of what one age finds
worthy of note in another”. Another historian understands it as “a science whose business is to study
events not accessible to our observation, and to study these events inferentially, arguing to them from
something else which is accessible to our observation, and which the historian calls ‘evidence for the
events in which he is interested” (Philippine Encyclopedia of the Social Sciences 1993: 1).

Ambeth Ocampo’s description of history is interesting. He proposes a working definition of history

as kasaysayan or history as narrative (which be written, visual, oral or a combination of all these)
about past events that has meaning to a certain group of people in a given time and place. For him,
the two components of kasaysayan—salaysay and saysay are inseparable. Without both, one cannot
have true history. He rejected the Western words for history which can mean a mere narrative of past
events. For him, history or kasaysayan is not just a narrative or salaysay—it MUST have saysay or
meaning. If one finds meaning in history, he said, it will gain power to change people’s lives
(Ocampo 2001: x).

Whatever definition or description one has on history, the fact remains that the process of writing
history is problematic and subject to different interpretation. It depends on what theory or framework
the historian is viewing the historical event. Its objectivity is always being tainted by the personal
biases and theoretical orientation of the historian.

Can there be an objective historical writing then? This question is part of a greater debate in social
sciences, particularly in ethnographic writing in anthropology, whether it is possible to
attain objectivity in writing. Postmodernists have long challenged the assumption that the mind can
attain an objective description of reality: there is no such thing as objectivity but only shared
subjectivity, that is, there is no fixed norm of what is objective but only a consensus of people in a
community on what is considered objective. For them, there are limits of what the mind can describe
and write. When one describes and writes an event, the writer can only capture a portion of what s/he
has seen using his/her sense of sight, other data which can be attained through the other senses such
as the smell, the sound, touch, and taste are obviously missed out. Words cannot capture the totality
of even for just one event or action. Moreover, historian as a writer can only choose one perspective
or point of view on how to describe the event. The post-structuralists such as Jacques Derrida, the
father of deconstruction theory, Michel Foucault and others have warned us that a written text can
have various levels of interpretation. In the field of Hermeneutics, the act of thinking itself is already
an act of interpretation. Thus, the reconstruction and description of a historical event is an
interpretation of the historian of the interpretation of the writer of his/her source. If s/he uses a
primary source or document, his/her piece of writing is already a second level of interpretation. The
author of that source is the first interpretation. And s/he uses a secondary source, the historian’s view
is third level of interpretation. The reader of the historian’s account is also another interpreter who
can understand the historical writing different from the historian’s intention, and so on. That is why
Derrida and others declare that everything is text and interpretation. The diversity of Filipino
historians’ interpretation of certain historical events can attest to the contentious nature of historical
writing. Take for instance, the authenticity of Jose Rizal’s retraction before his execution. Historians
are divided and their interpretation of the documents and other evidence differ from one another.
Though they can be grouped together generally as anti-retractionists and pro-retractionists, still there
are variations of interpretations within the grouping. There is no uniformity of views even with those
who hold similar position to a historical issue.

Are there given facts? Even though there is diversity of opinion and interpretation of historians to
historical events, there are certain things which many historians agree as “historical facts” which
cannot be subjected to debate. Thus, some historical figures, dates and places are generally
considered as historical facts by historians. These conventions of particular history which
practitioners recognized as given or assumed to be true. Church historians, for instance, agree that the
Patronato Real de las Indias is responsible for the Christianization of the natives in the Philippines, or
that the Royal Audiencia served as the “Supreme Court” during the Spanish period.

Why do we need to study history?

According to Carr (1970), history is a study of human achievement. The past is intelligent to us only
in the light of the present and the present can be fully understood only in the light of the past. To
enable us to understand society of the past and to increase our mastery over the society of the present
is the dual function of history (Carr 1970: 102). In short, we cannot fully understand the present
situation in Philippine society unless we have a firm grasp of the past.
This past whether during the Pre-Spanish, Spanish, American or any other period can only be
understood in the light of the present situation. Thus, one can only understand fully, for instance,
why People Power II occurred in such an organized manner to remove Joseph Estrada from the
Presidency if one fully appreciates what actually happened during EDSA People Power I which
deposed President Marcos from the presidency. Or one can only understand the present economic
crisis of the country if one learns the whole story of the interference of the United States in the
Philippine economy since its occupation of the country after the Spanish rule, particularly the
adoption of the parity rights provision in the constitution, free trade policy and the removal of the
protectionist policy of the economy by Philippine presidents loyal to America. History sharpens our
understanding of the present and compels us to look back what happened in the past to grasp fully
our present social ills.

Says Ocampo: “The point to remember is that history does not repeat itself. We repeat history”
(Ocampo 2001:xviii). Thus, to avoid repeating the same mistakes and errors in the past that plague
the nation, it is imperative that young people, especially students who are future leaders of this
country, must study history and learn from its lessons.

How do we study history?

Though contemporary approaches in history use artifacts and testimonies, the writing of history
remains dependent upon the availability of primary sources of evidence, particularly documentary
sources. The axiom “No documents, no history” still lingers to the mind of many historians. To
construct history is to narrate it based primarily on reliable documents. The historian constructs
narratives, that is the telling of a succession of related episodes. His primary work is to bring these
episodes to light, to show the relations existing between events, and in relating to explain them. Thus,
history appears to be the expository narration of the course of human societies in the past (PES: 3-4).
The historian first proceeds to decide what people want to know about, and then to go in search of
statements about it, oral and written, purporting to be made by the actors in the events themselves or
the eyewitnesses have told them, or have told their informants, or those who informed their
informants, and so on.

Like any other social science like sociology and anthropology, history needs a find blend of theory
and historical data in reconstructing the past. Theory and data are inseparable components in
historicizing. The theory serves as a framework to interpret historical data, while historical data
determines the appropriate choice of historical theory. A good historian starts doing history with an
open mind and evaluates historical data critically in order to reconstruct the actual event. S/he does
not tailor historical data to fit them into his favorite theory or theoretical bias. Of course, a historian
can do inductive or deductive type of historicizing. In deductive approach, the historian begins with a
theory and search for historical data to confirm it. In inductive approach, s/he begins with
appreciation of historical data and proceeds to formulate his/her theory. In either way, the historian as
a scientist must assume an objective stance and must avoid making value judgment. For Max Weber,
a true scientist must be value-free in his/her judgment. S/he must
bracket his personal values or biases while making assessment on research data. In the same manner,
the historian must be value-free and neutral in his/her judgment in evaluating historical facts in order
to attain objectivity. Exaggerating or underestimating facts to accommodate one’s theoretical bias, or
choosing a historical theory that fits to one’s taste and twisting facts to validate it, is not a sound and
scientific way of doing history.

The problem with the so-called critical history especially the Marxist approach is that the historians
tend to manipulate the facts in order to fit them into their preferred theoretical framework. The
historian Renato Constantino falls into this trap of twisting some facts to suit one’s theoretical taste.
Because of his a conflict theorist and historian, his interpretation of historical facts tend to be twisted
in order to suit to his critical-Marxist interpretation of Philippine history. For this reason, Constantino
has been criticized for not being empirical enough or balanced in his treatment of Philippine history.
Says May (1987):

In evaluating previous scholarship, Constantino applies a curious yardstick—whether or not the

writer criticizes the former colonial masters. He is not interested in balanced history. In his view, the
Spaniards and the Americans were simply bad rulers, and the aim of the historian should be to
expose their abuses. If a scholar writes a word in their defense—or if he attempts to be objective—he
too is bad, or at least misguided. Constantino only exhibits disdain for objectivity… (May 1987: 5).

Aside from “tailoring” historical facts to suit the historian’s theoretical preference, the danger of
exaggerating facts to highlight only the glorious past and to inspire the next generation is also
another trap that the historian must avoid. This what Prof. Randy David characterized as monumental
history where the historian includes only in his/her writings the glorious or positive side of history
and excludes its negative or dark side in order to impress people about the achievements of a nation
and its heroes. Like the critical-Marxist approach, this type of history lacks objectivity and balanced
view of the past. In monumental history, the historian becomes too selective in his/her choice of
historical facts and abandons his responsibility to choose an appropriate theory to interpret all
historical data at hand in order impress others.

A more balanced exposition of history requires neutrality and impartiality of the historian in
choosing theory and historical data. Whether the approach is inductive or deductive, s/he should
pursue his/her historical methodology with rigor and scientific discipline. S/he must allow the data to
speak for themselves and choose a theory that best interpret them, without precondition or bias.
CHAPTER II

THE GOVERNMENT SYSTEM OF THE PHILIPPINES

DURING THE SPANISH PERIOD
I. The Branches of Government
The most popular way of understanding our Philippine government is by dividing it into three
branches and by describing each branch according to its overall function. Under the present set-sup
of our government, the three branches are as follows: the executive, legislative and judicial. The
executive branch simply implements or enforces the law, the legislative branch enacts, modify or
abolish the law, and the judicial branch generally interprets the law and settle cases. Though there is
a big difference, of course, between our government today and the Spanish government in the colony
during the Spanish era. Nevertheless, we can still identify these three branches during the Spanish
period. After all, our government today was a product of the Spanish colonization. Using this three-
fold function of the government as a basic framework in identifying the colonial government, we can
now describe these branches which were introduced by Legazpi and his predecessors to establish the
colonial state in our country.

A. The Executive Branch

The Spanish King and the Royal and Supreme Council of the Indies
Overall, the Spanish king, being the sovereign of Spain and its colonies, was the source of all
executive powers of subordinate officials governing the Indies and the Philippines. Because of the
vast territory controlled by Spain, the king delegated some of his executive powers to officials
directly responsible in running the affairs of the archipelago. From 1565 to 1821, the Philippines was
administered by the king of Spain through the viceroyalty of Nueva Espana or Mexico. During this
period, our country was a satellite or extension of the province of Mexico where the governing body
of all colonies of Spain called the Real y Supremo Consejo de las Indias (Royal and Supreme
Council of the Indies) was located. This council was established by Charles V of Spain to assist the
Spanish king in managing the affairs of the colonies abroad. It received its executive power from the
king and possessed discretionary powers on how to implement the royal decrees and the collection of
laws of the Indies (Recopilacion de leyes de los
reynos de las Indias) in the colonies. By May 1863, this council was replaced by another governing
body for the Indies—the Ministerio de Ultramar or the Ministry of Colonies (Agoncillo 1990: 75)

1. The Governor-General as the Chief Executive

Today, the chief executive or the highest public official of the land that implements the law under the
1987 Constitution is the President. During the Spanish period, however, the chief executive was the
Governor General. He was appointed by the King of Spain and as the latter’s representative in the
colony, he was also called as the vice-royal patron. The governor-general enforced the king’s royal
decrees and all other laws of the colony and Spain. His executive powers include the following
(Zaide 1999 104):
1) Commander-in-chief of the armed forces in the colony (Captain-General)
2) Appointing officer of colonial officials with powers to remove them, except those appointed
directly by the king.
3) Chief justice/president of the Royal Audiencia (Supreme Court)
4) Vice-royal patron or king’s representative with power to:

4.1) recommend priests as parish priests and to intervene in religious

controversies.
4.2) declare war or peace with neighboring countries in the Orient.
4.3) appoint to and receive ambassadors from these countries.
5) Administrator of the Marianas, the Carolines and the Palaus as part of the

Philippines during the Spanish times.

There were times, however, during the Spanish period that the chief executive of the archipelago was
not the Governor-General but the institution called the Royal Audiencia. The Royal Audiencia (its
establishment and main functions will be discussed in the legislative and judicial branches below)
acted governed the country for six times, 1606-08, 1616-18, 1632-33, 1677-79, 1689-90 and 1715-
17, when the governorship was vacant due to the death or incapacity of the incumbent governor
general.

2. Local Officials
Some aspects of the government structure of the Philippine government today are inherited from the
Spanish colonial government. This is particularly true to local officials or public officers below the
chief executive who enforce the law. These are the officials who work in the provincial, city,
municipal and barangay levels of the executive branch of government. For clarity, let us identifying
and briefly describe their functions according to this hierarchical order. Despite the changes in
political structure during the long years of Spanish occupation, their main features remained.
1) Provincial Officials
For administrative purposes, the Philippines was divided into provinces and special districts. The
provinces were called alcadias or provinces and the special districts were called corregimientos or
districts. The alcadia or the provincial government is headed by the provincial governor who is
known as alcalde mayor who while district or corregidor is usually headed by an army officer.

2) The Municipal Officials

2.1 The Qualification and Election of the Gobernadorcillo

Each province was divided into pueblos. The pueblo or town was the unit of local government during
the Spanish period. This was headed by a local official called gobernadorcillo (little governor),
popularly called capitan (his wife was called capitana). He was assisted by four lieutenants: (1)
teniente mayor (chief lieutenant), (2) teniente de policia (lieutenant of police), (3) teniente de
sementeras (lieutenant of the fields), and (4) teniente de ganados (lieutenant of the cattle) (Zaide
1970: 82). The position of gobenadorcillo was the highest government position a native or Chinese
mestizo can occupy. If he was 25 years of age, literate in oral and written Spanish, and who had been
a cabeza de barangay for four years, he can be elected as a gobernadoricallo (Agoncillo 1970: 77).
We have to remember that the elective position during this period was limited only to the election of
the gobernadorcillo. During the early years of Spanish rule, the gobernadorcillo was elected
annually by all married men in the town. Later, this system was changed. He was elected annually by
a board of 13 electors: the outgoing gobernadorcillo, 12 electors selected by lot, 6 incumbent
cabezas de barangay (barangay captains) and 6 among former gobernadorcillos and cabezas (Ibid).
The parish priest and the provincial governor or representative presided over this type of election
(Zaide 1970: 82).

2.2 Administrative Duties of the Gobernadorcillo

The gobernadorcillo intervened in administrative cases involving lands, justice, finance, and the
armed forces. In particular, some of his many administrative include the following: (1) preparation of
the pardon (tribute list), (2) recruitment and distribution of men for the draft labor, (3) communal
public work (such as construction and repair of minor bridges) and the quinto (military conscription)
(4) postal clerk, and (5) and judge in civil suits involving P44.00 or less (Agoncillo 1970: 77).

2.3 Cabeza de Barangay

For administrative purposes, the pueblo was divided into barangays, each consisting of about 50
families. King Philip II of Spain conferred upon barangay head the title of cabezas de barangay to
“show them good treatment and entrust them, in our name, with the government of the Indians, of
whom they were formerly the lords” (Agoncillo 1970: 80). The barangay (from the word
“balanghai” or ‘boat) was retained as the basic political unit during the Spanish period. This was
headed by a cabeza de barangay (his wife cabizana). To qualify, he must have a good moral
character and owned properties.

Like the gobernadorciallo, the cabeza de barangay was responsible for the peace and order of his
jurisdiction and for the recruitment of polistas or workers for communal public works. His main role,
however, was being the tax and contributions collector for the gobernadorcillo. In lieu of these
duties, the cabeza de barangay enjoyed some privileges which included non-payment of tax, and if
he has served for 25 years, he was exempted from forced labor (Agoncillo 1970: 78).

2.4 Limited Powers for Gobernadorcillo and Cabezas

Both the gobernadorcillo and cabeza de barangay did not receive salary from the government. They
were honorary positions. However, they were both exempted from forced labor or polo and tribute or
tributo. Because they usually came from the principalia or higher social class in the pueblo, they
were looked up to with respect by the working class.

Because of the policy of the union of Church and State prevailing during the Spanish period, the real
and authority power in the pueblo did not emanate from the gobernadorcillo and cabeza de barangay
but from the parish priest. Being a representative of the Church and a salaried public official, his
word was said to be the law in the pueblo. “His recommendations on all matters affecting the town
were heeded by the Spanish authority in Manila” (Zaide 1970: 83).

1) City Government

Big towns or pueblos in the Philippines during the Spanish period were created into cities and were
governed by special charters or laws. Each city had an ayuntamiento or cabildo or city council. For
instance, the City of Cebu which was established by Miguel Lopez de Legazpi in 1569 had a council
consisting of 2 alcaldes ordinaries (equivalent to mayor and vice-mayor), 8 regidores (councilors), 1
secretary and 2 alguaciles (sheriffs). In the City of Manila in 1571, the council consisted of 2 alcades
ordinaries, 12 regidores, 1 aguacil mayor (chief constable), 1 royal standard-bearer, and 1 secretary.
By the year 1889, there were 8 cities in the Philippines: Manila, Naga, Vigan, Albay, Batangas, Iloilo
and Jaro (Zaide 1970: 83).

B. The Legislative Branch

Legislative power as defined by our present 1987 Constitution is the power to enact, amend, or
abolish the law. Today, lawmaking in the country is done by hierarchical legislative bodies
depending on coverage of the laws created: Philippine Congress (Senate and House of
Representatives) for national laws, Provincial Board for provincial laws, city, municipal and
barangay councils for local laws or ordinances.

During the Spanish period, the sources of laws for the Philippines came from different lawmaking
bodies, councils and individuals outside and inside the archipelago:

1) The Spanish King

When the Philippines was colonized in the 16 th Century, Spain--including other countries of Europe
during this period--was under a form of government called monarchy. Under this government, the
ruling monarch or king possesses executive, judicial and legislative powers. With regard to laws, the
king has lawmaking powers. He can issue royal decrees which are expected to be followed by all his
subjects within his territorial jurisdiction. For Spain in the 16 th Century, the enforcement of these
royal decrees extended beyond its European borders and extended up to all its colonies abroad. In the
Philippines, the governor-general who represented the Spanish king in the colony received these
royal decrees and enforced them to parts of the country controlled by the colonizers. He, however,
possessed discretionary powers in implementing these decrees. Because of his veto power called
cumplase, the governor general could choose not to implement the entire or some provisions of the
royal decree (Cf. Zaide 1999: 104).

2) The Spanish Cortes

The Spanish Cortes was the highest lawmaking body in Spain assisting the king in crafting laws the
homeland Spain and for its colonies abroad. Its legislative powers underwent various changes. There
was a time where it was dissolved and reestablished by the Spanish king. As well, there were
moments in its history when its lawmaking powers were clipped by royal decrees.

The legislative of the Spanish Cortes had significant effect to the inhabitants of the Philippines. For
instance, a law approved in November 8, 1820 prescribed new regulations governing Spain’s trade
with the East now open to Spanish nationals. It provided certain privileges to the country. Of interest
to the Philippines was the fact that products and goods produced or manufactured in the Philippines
were considered “national.” This meant that they were entitled to the privileges and immunities
which, by law, were accorded to Spanish products. Another law approved in June 29, 1821, also
affected directly the Philippines. This law established direct mail service between Spain and the
Philippines. By this legislation, the communication between the Philippines and Spain became more
intimate (Zafra 1967: 122).

All the lawmakers in the Spanish Cortes were of course Spaniards. In the earlier period of its
existence, no natives or inhabitants were appointed to represent the interest of the Philippines in
lawmaking. It was only in the 19 th Century when the king’s rule was weakened and the Supreme
Council of the Regency ruled Spain and its colonies in 1810 that the Philippines was allowed to send
a representative. After the Regency laid down the regulations for the election of delegates in the
Cortes, Ventura de los Reyes, a wealthy merchant of Manila, was elected as the Philippine
representative from 1810 to 1813 (Zafra 1967: 118). Three more representatives followed him.
However, this practice was stopped when the Cortes approved a new constitution for Spain in 1837
—establishing the parliamentary system of government replacing the monarchial system. This
signaled the end of Philippine representation in the process of making laws in Spain that promoted
the interests of the natives and inhabitants in the archipelago (Ibid: 123).

3) The Council of the Indies

The Council of the Indies which was established by the king of Spain in 1524 did not only powers
executive powers to enforce the royal decrees and the laws of the Indies. It also possessed legislative
or lawmaking powers in its duty to implement properly the orders of the king to the colony.

4) The Governor General

The legislative powers of the governor general pertained to the promulgation of executive decrees
(bandos) which had the force of law. As mentioned above, he exercised the veto power, called
cumplase, in which he could suspend the enforcement of any royal decree or law from the king
(Zaide 1970: 75). Though these executive decrees, he specified his new policy to be enforced in the
colony including what part of the new royal decree he was enforcing or vetoing.

5) The Royal Audiencia

The Royal Audiencia which was known as the Supreme Court during the Spanish time also
performed legislative functions. Established in Manila on May 5, 1583 by virtue of a royal decree,
this judicial body which was composed of one president and five members, was empowered to
promulgate laws for the colony. “These laws were called autos acordados (acts agreed upon) because
they were enacted upon the agreement between the governor general and the members of the Royal
Audiencia” (Zaide 1999: 105). Examples of this type of laws included restricting Chinese
immigration to the colony and fixing the prices of prime commodities and ordering the people to
comply with their religious duties (Ibid).

C. The Judicial Branch

The basic function of the judicial branch or the courts is to interpret the law and to settle disputes or
cases. Our present judicial system is largely influenced by the Spanish legal system. However, the
judicial branch during the Spanish system was not as clearly delineated with other
two branches. The Union of Church and State during this era had even made the separation of
religious and secular functions difficult to identify.

1) Council of the Indies as an Appellate Court

In addition to the executive and legislative powers it possessed to assist the king in governing the
colonies, the Council of the Indies also exercised judicial functions. “It consisted of a president, four
councilors who were either lawyers or clergymen, a secretary, a fiscal (crown attorney), a treasurer, a
historian, cosmographer, a professor of mathematics and an usher” (Zaide 1999: 103). Its first
president was a friar, Fray Garcia Jofre de Loaisa, the Father General of the Dominican Order and
Archbishop of Seville (Ibid.).

Criminal and civil cases from the Royal Audiencia (Supreme Court) in Manila can be appealed to
this court. Assuming that he or she has the financial resources, a losing party in an appeal case in the
Supreme Court can elevate his or her case to the Council of the Indies for judicial review. And if he
or she was still unsatisfied, he or she could still elevate it to the king of Spain for final decision.

2) The Governor General as the Chief Justice

As Chief justice of the Supreme Court in the colony, the governor-general enjoyed judicial powers.
He presided over the trials of the Royal Audiencia. He could pardon persons convicted of crimes and
grant amnesty (Zaide 1970:75).

3) The Royal Audiencia as the Supreme Court

The highest court of the land or the Supreme Court during the Spanish period was the Royal
Audiencia. It began to function in 1584 with Govenor-General Santiago de Vera as it first president
or chief justice (Zaide 1970: 77). As a judicial body, it was composed of the one president or the
chief justice and five members called oidores as associate justices. The chief justice was normally the
governor-general who was also the chief executive.

The Because of conflicts between its president and members, the Royal Audiencia was abolished in
1590. But it was later re-established and continued until the end of the Spanish rule in the
Philippines.

The Royal Audiencia tried all kinds of criminal and civil cases appealed to it by losing parties from
the lower courts (Zaide 1999: 105) or courts headed by the alcalde mayor in the provinces and
gobernadorciallo in the towns. Criminal cases involved violation of criminal laws and usually
punishable by imprisonment while civil cases involved disputes between private parties such as
ownership of land, contracts, and so on and usually resolved by payment damages.

4) The Provincial Governor as the Regional Judge

Though his primary duty was to enforce locally the directives and laws from Manila, Alcade Mayor
or provincial governor also performed judicial functions. He was the regional judge during the
Spanish period who heard cases within his provincial territory involving more than 200 pesos. He
heard appeal cases of losing parties which had been judged by the gobernadorcillo on the town level
or pueblo (Cushner 1971: 175-176). “Since the salary of an alcalde was only 300 pesos a year, graft
was a commonplace” (Ibid: 176). Oftentimes, there was conflict of interest. Since the alcalde was
given the power to control trade in the province, there were instances where was the defendant and
the judge of the case at the same time.

5) The Gobernadorcillo as the Municipal Judge

In addition to his administrative functions, the gobernadorcillo also acted as the municipal judge. He
administered justice in the town or pueblo. He handled both criminal and civil cases. In civil cases,
only cases that involved P44.00 pesos or less were under his jurisdiction. Otherwise, the regional
judge or the alcalde mayor had the power to hear the case.
CHAPTER III

STUDYING POLITICS, POWER, AND LAW IN THE PHILIPPINES

INTRODUCTION
The basic aim of this chapter is to enlighten readers about the true nature of politics and law using the
empirical approaches of the social sciences. It is divided into two main parts. The first part deals with
understanding the study of politics, power and authority in the Philippines, while the second part
explains the nature of law from the point of view of social science. In the Philippines, the law is often
understood from the normative or prescriptive view. Its actual operation in society is often
overlooked. The distinction between legality and morality is also misunderstood by many Filipinos.
What is legal may not necessarily moral. Thus, this chapter attempts to understand the law and
legality realistically based on the descriptive view of the social sciences, particularly from the
sociology of law, and to distinguish it from Christian morality.

STUDYING POLITICS, POWER AND AUTHORITY

The Nature of Politics

Politics merits serious study because it is about “who gets what, when and how” (Lasswell 1950).
This definition is a correct assessment why politics matters but does not directly address the nature of
politics (Goodin 2009: 4).

The meaning of the term “politics” is usually understood in two senses. In its general sense, politics
can be understood in terms of the dynamics of power in society. Individuals, groups and
organizations in society compete to control resources for their own ends and interests. Thus Kerkvliet
(1995) defined politics broadly as comprising “the activities in which people, groups, and
organizations engage in order to control, allocate, and use resources; politics also include the values
and ideas underlying those activities.” Goodin (2009) views politics in terms of power relations and
defines it as “the constrained use of social power”. And the study of politics, whether by academics
or practical politicians, might be characterized in turn, as—the study of the nature and source of
those constraints and the techniques for the use of social power within those constraints (Goodin &
Klingemann (Eds.)1996: 7).
In its strict sense, the term “politics” is often understood as “partisan politics”, that is, engaging in the
formation and promotion of political parties and actively campaigning for candidates during elections
to gain control of political positions in a given body politic.
What is common to both senses is the use of power in society to achieve one’s personal and/or group
political interests. Politics is therefore associated with power and authority in society. One cannot
engage in politics without the use of the technologies of power in order to allocate and control
resources in society. Authority, as a special form of power, is also used by power players or elite
groups to utilize government resources for their own personal and corporate interests. Thus, one
cannot disregard power and authority in the study of politics in society. But what is power? How is
power different from authority?

Power and Authority

Sociologists usually understand power as the ability to impose one’s will on others despite resistance.
Frances Fox Piven (2008), for instance, defines power as “the ability of an actor to sway the actions
of another actor or actors, even against resistance” (Piven 2008: 3). The classical definition of power
comes from the German sociologist of Max Weber, who defines power as an “opportunity existing
within a social relationship which permits one to carry out one's own will, even against resistance
(Max Weber 1968: 212). It is the ability of an actor to realize his or her will in a social action, even
against the will of other actors.

For Max Weber, the modern sources of power are social class and social status. Social class refers to
the position of the person in the economic ladder of society--upper, middle or lower class--as shown
in his/her amount of wealth and income. Social status basically refers to one’s life chances or
position in the market as indicated by one’s credentials, level of education and prestige earned in
society.

The classical view of power sees it as a possession. If one has wealth, social influence, one is
powerful. A rich man is said to be powerful because he has many resources at his disposal to impose
his will against any poor person. Thus it has always been assumed that the rich and influential people
usually prevail in terms of economic and political decisions over the poor and the weak.

The post-structuralist French philosopher Michelle Foucault (1977) challenged this popular view on
power in his power analytics. For Foucault, power is seen more as a personal exercise, something
that is achieved by the actor’s effective use of strategies and manipulations to advance his/her own
interest. A rich person is not powerful against a poor man if /she doesn’t know how to use effectively
his/her the resources at hand. Possessing wealth and status do not immediately translate into
domination over another if the person is poor in strategies and tactics in influencing the other.

Authority is a legitimate form of power. It refers to the probability that the contents of a particular
kind of command will be obeyed. In other words, to have authority in a particular domain means that
one's directives will be followed. It is a type of power given by the people to the power holder. It is
also understood as the right to rule. On the one hand, a person or group may possess power but not
authority as in the case of a dictator or military junta who grabbed
political power outside the constitutional means. Thus, a military dictator can impose his/her will on
the people but his/her rule is illegitimate as it has not been sanctioned by the majority. On the other
hand, a person or group may acquire authority but may choose not to exercise power over the people
as in a case of a lame-duck president who opted not to rule on certain situations for some reasons.

In most cases, a legitimate person or group can exercise both power and authority. As long as the
leader does not go beyond his mandate or authority under the law—assuming that this secular law is
just—exercising power over the people can be upheld as legitimate and morally binding. Thus, a duly
elected mayor, for instance, is exercising the legitimate power and authority of his office as the local
executive if s/he governs within the bounds of the law establishing his public position.

Sources of Authority in Society

Max Weber identified three ideal types of legitimacy upon which authority may rest: (1) charisma,
(2) tradition and (3) rational-legal. In any actual society or institution, power may be exercised on the
basis of a mixture of these types.

Charismatic authority is founded on the personal traits and gifts of the leader. The more authentic
these personal traits are perceived by the people, the higher is the legitimacy of the leader. People
obey the leader not primarily because of certain laws or traditions, but because of his/her personal
talents. Because it is a personalized form of authority, charisma tends to be unstable. It does not
normally survive the death of the original leader, and it often abandons the leader while he or she is
alive. Charismatic leaders in history include Jesus Christ, Mahatma Gandhi, Martin Luther King, St.
Francis of Asisi, Mother Teresa of Calcutta, etc.

Traditional authority is one that is based on some sort of tradition handed down from the past. The
leader is obeyed by the people as legitimate because of an informal norm handed down by elders in
society. It is a kind of authority in which the legitimacy of the authority figure is based on custom.
This type of authority is that which the traditional rights of a powerful and dominant individual or
group are accepted, or at least not challenged, by the subordinate individuals.

The ordination of a priest by a bishop is an example of traditional authority. The new priest received
his power and authority by way of tradition and people obey him as a legitimate spiritual pastor of
the Church. Succession in monarchy is also done through traditional authority. Tradition dictates that
only persons with royal blood can ascend to the throne.

Rational-legal authority is the most common feature in modern and contemporary society. This
authority is based on a set of rules, and the belief in the legitimacy of the process of rule creation and
enforcement. This form of domination is routinized through bureaucracy. The leader assumes the
right to exercise power over the people because the law says so.
Authority is held by legally established impersonal orders and extends to people only by virtue of the
offices they hold. The power of government officials, for instance, is determined by the offices to
which they are appointed or elected because of their individual qualifications. As long as individuals
hold these offices, they have a certain amount of power, but once they leave office, their rational-
legal authority is lost. Thus, the presidential candidate who garnered the highest vote in a national
election in the Philippines acquires authority to rule/lead the people for six years without reelection
as mandated by the 1987 Constitution. The authority to rule expires as the term of office expires. A
priest who qualifies under the Canon law of the Church, after a rigid screening, can become a bishop
and assumes authority to rule in his diocese. Though personal traits also count in the selection
process, a fixed law becomes the primary legitimizer of the leader’s capacity to exercise authority.
His authority expires when he retires or becomes incapacitated as stipulated by law.

Power Distribution in the Philippines

Power distribution in Philippine society is said to be concentrated on a few elite families. McCoy
(1994) characterizes Philippine politics as “anarchy of families” in which very wealthy families
compete with one another to control the resources of the country. Power, like wealth, is concentrated
in the hands of a few in the Philippines—the influential in society (politicians, big businessmen, and
the military). External forces such as the multinationals and political superpowers support this
concentration of power and tend to intervene in order to maintain the structure (PCP II, p.279). IBON
foundation describes the income gap between the rich and the poor in the Philippines:

The income gap in the latest 2006 government data shows that the share of the top 10% families in
the income pie was even higher at 36% than the 35% share of the bottom 70% families. In 2010
according to the Forbes Asia list, the net worth of just the 20 richest Filipinos– including Lucio Tan,
Enrique Razon, Jr., Eduardo Cojuangco, Enrique Aboitiz and others– reached $20.4 billion, which is
likely equivalent to the combined income of around 12 million families.

The rich have gotten richer in recent years, the research group said. For instance, Enrique Razon Jr.,
a known close ally of former Pres. Gloria Arroyo, is worth $975 million in 2010 from $285 million
in 2009, highlighting his rapid accumulation of wealth in the past years. The net income of the Top
1,000 corporations in the country rose from P116.4 billion in 2001 to average P416.7 billion annually
in the period 2002-2008. On the other hand, workers have seen the smallest increase in their real
wages; the minimum wage in NCR increased just P5 in real terms over the almost decade-long
Arroyo term.

Widening poverty is also a pressing issue that requires comprehensive solutions beyond the ‘good
governance’ approach. Using the approximate Php86 a day for the assumed international standard for
moderate poverty would show that 79 out of 100 Filipinos were poor in 2006, and half of the
population actually struggled on Php18-54 a day. This would have likely increased in the last four
years especially with the fuel crisis in 2008, food crisis in 2009, and the climate disasters last year.

The main economic problem in the Philippines is income and wealth distribution. There is inequality
in wealth distribution between the rich and the poor. This translates into inequality to the access of
political power and positions in the country. The rich and their protégés control elections and
political positions in the country. They enact laws that tend to protect and promote their economic
interests, while the majority who live below the poverty line remain unrepresented in the political
processes and thus remain marginalized in the distribution of the country’s wealth and resources. To
understand this inequality in power and politics in the Philippines, political scientists use various
approaches, analogies, or images as shown below:

APPROACHES TO STUDYING POWER AND POLITICS IN THE PHILIPPINES

Patron-Client Relationship or Clientelism

Its argument, in brief, is that Philippine politics revolves around interpersonal relationships—
especially familial and patron-client ones—and factions composed of personal alliances. The
relationship between a rich haciendero or landowner and the poor landless tenant is a classic example
of this relationship. The haciendero is the patron who provides medicines, credit, burial expenses,
food and other assistance while the client is usually a landless tenant. In exchange of the patron’s
generosity, the dependent farmer client and his relatives are expected to render services and to
deliver votes for the patron or whoever he or she endorses during elections. The politics of utang-na-
loob (indebtedness) often operates under this relationship of clientelism.

Patron-client relationship and clientelism as a basis for organizing thrives in conditions that are still
pronounced in the Philippines. Such conditions as: great inequality, absence of impersonal
guarantees for physical and economic security, and the need for personal linkages beyond immediate
kin as part of the effort to have more security “(Kerkvliet 1995).

Political Machine
Personal networks, while vital for stitching factions together, are insufficient and inefficient for
winning offices in large electorates. For that reason, "political machines" became apparent in the
1950s-1960s, fell on hard times during the Marcos years when his machine was the only game in the
country, but have been resuscitated since the mid-1980s.

Sensing that the social relations in a patron-client relationship is not sufficient to win elections,
political experts began to realize the importance of money politics to build a huge political machinery
to win elections. Political machine politics have brought out more clearly the importance of money in
Philippine politics, especially during elections.
Elite Democracy
The "elite democracy" approach says we must also understand the role of violence, coercion,
intimidation, monetary inducements, and the considerable autonomy elites have to manipulate formal
democratic procedures to their liking. The politics of “guns, goons and gold” is associated with this
type of democracy. Warlords both in the national and local levels use personal and illegal money as
well as their private armies equipped with high-powered firearms to corrupt the electoral system and
to force voters to vote for them or their protégés.

This approach contends that the political system is essentially one in which elites use connections,
wealth, and physical force to control the country's resources. Public offices are sources for personal
fortune. The higher the office, the more lucrative the returns for one's family and allies, though
officials in prosperous provinces and cities can also do very well. Consequently, elections are devices
for political elites to sort out who will feast on the public larder for a term or two, and a way to make
the masses feel a part of something from which they are actually shut out.

Patrimonialism
One underside of the close family ties of Filipinos in the Philippines is patrimonialism.
Patrimonialism is a political phenomenon in which the politically influenced families feel that other
members have the right to public office just because one of its family members or close relatives are
elected in public office. If the father is a senator, the wife aspires to be a mayor or the son a
congressman. Influential politicians use all means to allow themselves and their relatives to stay in
power and exclude non-relatives from public office (Zialcita in Diokno ed. 1997:46) Patrimonialism
treats public office like a private ownership where politicians can transmit to their heirs their political
positions. An interesting anthropological theory called the transitory private ownership of public
space by Richard Stone in his studies of police corruption in the Philippine in the 1970s indicated
that when Filipinos occupy public space and public office, they treat it as private property. As long as
they are presently occupying the public office or space, they feel they have the right to deal privately.
Thus, it is difficult for the government to drive away squatters or informal settlers because the latter
think they have the right over the land as they are occupying it at present. Mayors, governors and
other public officials once they elected in the city or municipal they feel that they “own” the office
and transmit it to their heirs and relatives.
Patrimonialism is a product of extreme familism or strong family ties which exclude non-relatives or
kin to access public position or office in the political structure. It establishes elitism and political
dynasty in the country.

DISCIPLINES STUDYING POLITICS IN SOCIETY

The study of power, politics, law and government is not a monopoly of political science. Other
branches of social sciences also study these things. The only difference is probably their approach to
understanding political issues and problems. Politics and political behavior, for instance, can be
understood in terms of motivations and personality structure of the actors that
affect political action in the field of psychology. Economics can view such action in terms of
distribution of material rewards or Sociology in terms of the influence of social structure and culture
on political decisions. Thus, it is important to understand the various branches of social sciences and
how they can contribute to the study of politics and government.

Political Science
The branch of social science that is largely associated with the study of politics, law and government
is political science. Political science comes from two Greek words: polis for “city-state”, and scire,
which means, “to know”. The French philosopher Jean Bodin coined the term in the 16 th century.
And another French philosopher Montesquieu (1689-1755) first formally defined it a century after
when he categorized the functions of government into legislation, execution, interpretation and
adjudication of laws (Dannug & Campanilla 2004: 55-56).

With the birth of social sciences in the 19 th century, political science has gradually been divorced
from philosophy and assumed a more empirical character in its study of politics. Political science
began adopting research strategies and techniques from other social science disciplines in explaining
political behavior. Serious quantitative political analyses began in the 19 th and early 20th centuries
(Gow 1985). The use of quantitative analysis went hand-in-hand with the post-World War II
“behavioral revolution” in political science with the adoption of sophisticated methodology imported
from other disciplines such as sociology and economics (Dahl 1961).

Although political science can trace its origin to ancient Greek political thinkers such as Socrates,
Plato and Aristotle, as an academic discipline, political science is much newer than other social
sciences (Grigsby 1999: 7). The self-definition of political science as a science goes back only a
century or so (with a convenient date being the founding of a "scientific" department at Columbia
University in 1880 (Beck 2000). At the turn of the last century, probably no more than a couple of
hundred people in the United States (US) consider themselves as political scientists (Grigsby 1999:
7). From its humble beginnings in the US, political science started to expand around the world and
developed into different subfields (areas of specialization) and research methods.

The American Political Science Association defines Political Science as “the study of governments,
public policies and political processes, systems, and political behavior” 1 The Political Science
Department of the University of Victoria defines “Political Science” as “the study of power, authority
and governance in human affairs”.

Political science as a discipline is substantively, not methodologically, defined. Political scientists

use a variety of methods to attack questions related to political institutions and
behavior. Some political scientists focus on studying normative issues (issues involving value
judgments and ethics), while others concentrate on empirical (observable, factual) investigations, and
still others study both (Grigsby 1999:7). Although the methodological issues are defined by political
questions, political scientists freely use whatever methodological solutions are available (Grigsby
1999). Thus, it is important to understand the other branches of social sciences and how they can
possibly contribute to political science’s study of political behavior.

Study of Political Science Presupposes a State Society

With its etymology, the study of political science presupposes an existence of a more advanced and
complex type of society like a state, a society with large populations, social classes, private
ownership and centralized authority or bureaucracy that assist the sovereign head in governing it.
One cannot indulge in the study of political science in a primitive, rural or non-state society where
the population is very low, politics is minimal and government structure is simple. That is why this
discipline started to flourish in the 19 th century when societies in Europe became a modern and
independent nation-states. Leaders of state and complex societies need the expertise of political
scientists to understand the actual dynamics of power, law and politics in society. Political scientists
study the origin, development, and operation of political systems. They research political ideas and
analyse the structure and operation of governments, policies, political trends, and related issues.

Sociology
Sociology comes from two Latin words: socius which means “partner” and logos which means study.
Literally, it means “study of partners”. In its scientific definition, sociology as a social science is the
study of social behavior, relation and processes. It studies group-related behavior and tries to
understand how societal forces such as culture, social class, status and institutions affect individual
behavior.

Broadly, sociology is understood as the study of modern and contemporary society. By modern, we
mean those societies in the 19th centuries which became nation-states after gaining their
independence from their colonizers and monarchs, starting with France which became a republican
nation state after the French revolution. These are countries which became independent after the
industrial revolution in Europe. By contemporary, we mean societies or post-industrial states which
exist in today’s information age. The French philosopher first coined the word “sociology” and the
French sociologist Emile Durkheim was said to be the father of modern sociology. Together with the
German sociologist Max Weber, and the German Philosopher Karl Marx, Durkheim envisioned a
social science that aims to study the dynamics and structure of society empirically applying the
scientific methods used by natural sciences.
Parts of sociology and political science merge. Political science starts by looking at society to see
“who thinks what” about politics. To demonstrate how political views vary among social classes,
regions, religions, genders, and age group, sociology provides an empirical basis to political culture,
public opinion and electoral studies. In fact, some of the renowned political scientists are
sociologists. Sociologist Seymour Martin Lipset, for instance, is a well-known political scientist who
first demonstrated the close connection between democracy and the level of wealth (Roskin et al
2008: 4).

Anthropology
Like sociology, anthropology also studies the social behavior, social structure and social relations in
society using scientific methods. The major difference is the preferred type of societies being
examined by both disciplines. Anthropologists usually study preliterate or primitive and non-state
societies of exotic tribes while sociologists, as mentioned, focus on modern and contemporary state
societies.

Anthropologists also study politics, power, authority and government primarily in non- state
societies. They classify the political organizations of societies into as band, tribe, chiefdom and state.
Some do research studies on government and governance, law and the legal system, power and
authority using anthropological theories and social science methodologies. Others examine the
politics behind elections, political party systems, development projects, and bureaucratic corruptions.
The descriptive and interviewing techniques of anthropology are often adopted by political scientists.
Moreover, the subfield of political culture could be viewed as a branch of anthropology (Roskin et al
2008: 4).

Economics
Economics studies the production, distribution and consumption of goods in society. Economics is
the subject matter of politics. Many political quarrels are economic: Who gets what? Sufficient may
be the basis for democracy, but a declining economy may doom democracy and political instability
(Roskin 2008).

Moreover, political scientists can examine the economic costs and rewards behind political
transactions. They can also investigate the political economy of politics or how political power
affects economic policies in society. In some cases, the economic theories of economics can guide
the political analysts to measure the economic impact of political decisions of politicians in society.

Psychology
Psychology studies inner forces within the individual that shape his/her behavior. It studies the ‘how’
the mind and mental processes and personality affect individual behavior.
With the help of psychological theory and methodology, particularly that of social psychology,
political scientists can study the motivation and mental processes behind every political action. They
can do research, for instance, on the motivation of politicians why they switch political parties during
elections. They can also describe the personalities of people attracted to politics, why and under what
circumstances people obey authority figures, and how people form national, group and voting
attachments. Psychological theories can greatly help the political scientists in understanding the state
of mind of people engaging in politics.

History
History as an academic discipline is often defined as a systematic study of the past. The study of the
past is important. According to E. H. Carr (1970), history is a study of human achievement. The past
is intelligent only to us in the light of the present and the present can be fully understood only in the
light of the past. To enable us to understand society of the past and to increase our mastery over the
society of the present is the dual function of history (Carr 1970: 102).

History is significant to the political scientists as “history is past politics and politics present history”
(De Leon 1997: 2). Historical perspectives can enable them to see patterns on how certain political
phenomena appear and recur in societies at particular periods of time. It can also provide the analyst
with comparisons, how political phenomena differ from one another. Thus, using history, he or she
can see the difference between EDSA People Power I, II and III.

Human Geography
Human geography studies how locations affect human behavior or vice-versa. The territorial
component of human behavior—borders, ethnic areas, trade flows, centralization of power and
regions—have great political ramifications. Although human geography has been neglected in recent
decades in the study of politics, contemporary political scientists have started to use geography to
explain differences in political behavior. The French political scientist Andre Siegfried pioneered the
use of maps to explain regional political variations, a technique of today’s electoral studies (Roskin
et al 2008: 3).

UNDERSTANDING LAW IN SOCIETY

In the Philippines, when we talk about the law, we cannot avoid thinking of legal codes, lawyers and
judges. As a country dominated by lawyers, the study of law is often relegated to the discipline being
studied in law schools—jurisprudence. Jurisprudence is “the science of law; the particular science of
giving a wise interpretation of the law and making a just application of them to all cases as they arise.
In an untechnical sense, the term means sometimes Case Law” (Moreno 1972: 334). It is a
comprehensive study of the law, particularly those statutes which are enacted by legislatures,
compiled in legal codes, and applied by courts to actual cases. There is nothing wrong in relying on
jurisprudence in understanding the law. Everyone is expected to know the
law. The only problem lies in its approach. Jurisprudence understands the law in the normative sense,
“as it ought to be” rather than “as it is” or as it actually operates in actual social practice.

What jurisprudence lacks can be supplied by the empirical or descriptive approach of the social
sciences, particularly by the subfield of sociology called sociology of law. Sociologists of law
understand law in society in relation to the social structure, culture and power dynamics in society.
They employ scientific methodology to measure or document the actual operation of law in the
courtroom or in any legal arena.

The Social Scientist and Law

To understand the full legality of the law does not only require the expertise of the lawyer but also
the expertise of the social scientist who knows the social dynamics and structures of society where a
particular law is applied. By training, the lawyer is trained in law schools in understanding the
substantive and procedural laws but they are not trained in empirical research and social theory to
understand the actual socio-cultural forces behind the application of the law. In one case, an
American lawyer of a Filipino accused of murdering a native of Hawaii solicited the expertise of a
Filipino anthropologist on Philippine culture in order to prepare a good defense, probably to argue
that there are cultural forces that influenced the accused in killing the victim.

The main aim of the legal profession is basically practical in nature. The lawyer’s main concern is
not documenting and understanding empirically the dynamics of culture and society but to win
his/her case in court. But in order to win it, s/he needs the empirical knowledge of the social sciences
to argue and win his/her case. The social scientist provides the necessary knowledge and empirical
foundation to understand the sociological underpinnings of law as applied in actual social practice.

The Importance of Research in Understanding Law

Scientific research is necessary to understand the actual operation of law in order to judge whether it
is a good one or not. On paper, the law may be just and impartial but in practice, the opposite may
happen. The sociologist Max Weber reminds us that the unintended consequences can always happen
in social life. Even though the objective of the law and the intention of the lawmakers is for the
promotion of the public good, the unintended or opposite effect can always happen. The Oil
Deregulation law, for instance, was enacted by the Philippine Congress with the intended effect of
encouraging competition among oil companies in order to reduce the price of gasoline and other
petroleum products, but the unintended and unforeseen effect seems to be eclipsing its intended
effect. Since the government cannot intervene directly in regulating the oil industry— especially in
the pricing of petroleum products—as stipulated in the Oil Deregulation law, the unintended effect
seems to be monopoly or the cartelization of the oil business led by the Big Three (Shell, Chevron
and Petron) and the unabated overpricing of petroleum products.

In a nutshell, the law is not what legal provision says it is but what people behind it—legal
authorities--say it is. It is the people who interpret and enforce the law that determines its nature and
application in actual social practice. It is ultimately the police, prosecutors, judges or
justices, jail officials and other officers in the judicial department of the government who determine,
by a personal appreciation of evidence and legal provisions, what the law is in concrete cases.

The Role of Social Scientists in the Internationalization of Economic Laws

Another reason why the social scientists, like sociologists of law, play an important role in
understanding the actual effects of law in today’s society is that contemporary law has become more
and more complex and internationalized. With the dominance of multilateral institutions, like the
World Bank, the International Monetary Bank, or the World Trade Organization, laws, especially
economic ones, are no longer created by the country’s legislature. These multilateral agreements--
often dictated by rich and industrialized countries—become the framework on which economic laws
of developing or poor countries are based. If the developing country is a signatory of these
multilateral agreements, its lawmaking body has less freedom to craft its own independent economic
laws. The laws on intellectual property rights, for instance, are enshrined in the treaty of the
multilateral agreement of General Agreement on Tariffs and Trade (GATT) called the Trade-Related
Intellectual Property Rights (TRIPs) signed by more than 100 countries around the world, including
the Philippines. Each of these countries can no longer create their own intellectual property
legislation that may be contrary to TRIPs. On the contrary, they are required by TRIPs to pass local
laws which implement the multilateral agreement. The Optical Media Law of 2003 in the
Philippines, for example, is the result of the pressure from the multilateral institutions to enact laws
to combat piracy as prescribed by TRIPs.

As a result of this internationalization of law, local customs and culture are sometimes disregarded in
lawmaking. The laws which then created by the country’s legislature are no longer bound to the local
needs and culture but adjusted to suit international legal standards often dominated by American or
European culture. With this phenomenon, academic training of lawyers may not be sufficient for
them to know the current underpinnings of the law. Again, the assistance of the social scientists with
their social theories and research tools is necessary in lawmaking and socio-legal analysis in order to
understand the actual operation of law in various cultural contexts of developing countries.

LAW AND MORALITY: IS IT ALWAYS MORAL TO BE LEGAL?

The distinction between legality and morality or between “what is moral” and “what is legal” does
not seem to be clear to Filipino Catholics. Many seem to equate the two, that is, if something is legal,
then it is also moral or acceptable in the eyes of God or of the Church. Teachers of religion in
Catholic colleges are often disappointed upon knowing that the students do not seem to know the
difference between a civil and a Church marriage. Many students assume that civil marriage by a
judge is moral because it is legally and socially acceptable. They thought that couples who are civilly
married and cohabiting are not living in sin and therefore they can receive holy communion in the
Holy Eucharist worthily and without committing a serious sin. They reasoned out that since their
marriage are legally recognized by the state and by Philippine society, then these couples are
presumed to be morally married in the eyes of the Catholic Church.
This indicates a confusion in the difference between morality and legality. Technically speaking,
civil marriage has long been considered by the Church as legal but immoral and thus couples cannot
receive Holy Communion worthily. This marriage is legal in a sense that the State allows couples to
be married by a judge as long as they comply with the requirements of the Family Code. This is
however, is considered immoral, in a sense that the union is not sacramental, meaning, the couple is
not blessed and solemnized by the Church and witnessed by the priest, the representative of the
Church by virtue of his ordination. Thus, they are considered by the Church as “living in” or
cohabiting without the necessary blessing of God. And if they engage in a sexual union, they can be
considered to have committed the sin of fornication and thus ineligible to receive holy communion
worthily. Legally married couples can still live a life of grace, if they opt not to stay together pending
their Church wedding. This case therefore illustrates the fact that what is legal is not necessarily
moral. So what then is the difference between these two?

The Relationship between Legality and Morality?

“The relationship between law and morality is both complicated and subtle. This is true even in a
situation where a society is very homogenous and where one might find a large degree of consensus
about moral behavior” (Duster in Kelly (ed) 1993: 29). Ideally, laws created by the State through
legislation must be based on divine law. And there lots of state laws that reflect the divine laws. The
1987 Philippine Constitution, the fundamental law of the land, for instance, acknowledges that state
laws must be consistent with the laws of God. They must not contradict the commandments of God.
The divine law must prevail over state law in case they collide. The root cause of this inevitable clash
between state law which defines legality and divine law which defines morality is the vested interests
of people who create state laws. More often, lawmakers in the Philippines who come from the elite or
from social classes with business interests, file bills or proposed laws in Congress to promote or
protect their vested interests rather than to promote the common good or the social welfare of the
poor as taught by the Bible and by the Church. For example, a lawmaker who is a son of a rich
landowner in Mindanao filed a bill in Congress on alternative fuel like the bio-diesel. However, this
seems to be a conflict of interest, critics alleged, for his family and allied landowners would most
likely benefit from it if the bill becomes a law. His landowner parents, according to them, intend to
utilize their vast idle lands by planting jathropa or other plants for biodiesel production. Legislation
in this case was intended to benefit the lawmaker and his/her social networks in the guise of genuine
concern for consumers. For critical theorists of law, this is inevitable as law in society is never
neutral. It “bends” in favor of the lawmaker instead of its subjects (Ballano 2007: 12).

The laws passed by the Philippine Congress seem similar to that of Peru, a developing country which
Hernando de Soto (1989) calls in his book The Other Path as redistributive laws. A country remains
poor because the laws created are meant to redistribute wealth rather than creating it. “From this
standpoint, the law is essentially a mechanism for sharing a fixed stock of wealth among different
interest groups that demand it” (De Soto 1989: 189).
A redistributive legal system neither benefits the rich nor the poor but only those best organized to
establish ties with people in power. “It ensures that the businesses that remain in the market are those
which are most efficient politically, not economically” (De Soto 1989:191). Laws are then meant to
maintain the level of social inequality at status quo and not to democratize wealth. Conflict theorists
of law understand the law as an instrument of domination of the powerful over the weak. The law is
not ideologically neutral. Law is a discourse which interprets and conveys meaning, but it is a
discourse with force behind it. Its impact goes beyond the realm of meaning. Law is a key vehicle for
the spread and enforcement of the ruling ideologies, a vehicle of ideological domination (Moore in
Lazarus-Black and Hirsch 1994).

The Nature of Legality and the Two General Types of Laws

Legality can be understood as a process of knowing whether an act is legal or illegal based on a legal
norm or on a written and official law. It can also refer to a social order based on law. Laws are
created and promulgated by the state or by any competent authority in a formal organization or
institution. Before we can clearly understand what makes an act illegal or not, we first have to
differentiate two general types of legal norms that judge whether something is illegal or not. Legality
and its outcome depend on the type of law people invoke to pursue their case.

Sociologists of law distinguish two kinds of law used by society to measure legality: the substantive
law and procedural law. The substantive law refers more to the substance or the content of the law
itself as written in a legal code like the powers of President as written in the 1987 Constitution or the
grounds for civil annulment of marriage in the 1987 Family Code, the law on libel and intriguing
against honor in the Revised Penal Code, or even the rules on proper conduct contained in the student
handbook of the school. In the Philippines, the sources of the moral popular and general types of
substance laws are found in legal codes and set of laws such as the 1987 Constitution, the New Civil
Code in the Philippines, the Revised Penal Code, the Tax Code, Special Penal laws, Commercial
laws or E-Commerce law, Intellectual Property Code in the Philippines, the Code on Judicial
Conduct, etc. In the Catholic Church, the main source of substantive laws (and also procedural law)
is the Code of Canon Law. The word “canon” in Greek literally means “ a measuring stick”. Thus,
the laws of the Catholic Church are called canons. This Code is a compilation of all laws in the
Church throughout the centuries on how a Catholic Christian should live his or her life as a member
of the institutional Church.

The procedural or sometimes called remedial laws are those laws that deal with steps or procedures
on how to process legal cases in court or any administrative body This includes procedures on how to
file a case, to make an appeal, to present evidence, how to make and present a legal pleading and the
like. This is the type of law that lawyers make a living since these are the court technicalities that
they know and are paid for by their clients. In the Philippines, the popular source of this type of law
is the Revised Rules of Court in the Philippines, a handbook of court procedures which is created and
constantly modified by the highest court of the land, the Supreme Court. Procedural rules can also be
found in legal manuals
of schools, organizations, institutions or administrative or investigating bodies. In the Catholic
Church, laws are found mainly in the Code of Canon Law and in the pastoral directives by the Pope,
Sacred Congregations of the Roman Curia or bishops that deal mainly with Church discipline.

When an act becomes illegal or against a human law, we have to qualify then which type of law is
violated: is it substantive or procedural? Violating the substantive law is generally considered more
serious than violating procedural law. After all, the spirit of the law is more important than the letter
of the law. The merit of the case has more value as it involves violation of human rights rather than
technicalities of legal procedures. The former is an actual transgression of social or moral value if
proven by the court but the latter consists only of lapses in procedural matters--though very often
lawyers consider legal procedures as very vital to a successful prosecution or defense of a legal case.
Many prisoners in Bilibid Prisons, for instance, claim that they are convicted not because they are
guilty but because they are poor who cannot afford to hire good lawyers with shrewd knowledge and
expertise with regard to technicalities in court who can acquit them.

The Basis of Legality

The foundation or basis of legality is actually the human law or the laws created by men or women,
with the exception in the Catholic Church where legality in the Code of Canon Law is generally
equated with morality. The 1987 Family Code of the Philippines, for instance, was created by a
group of people, a commission formed by the state, and was presented to Congress for review and
approval and finally to the President for approval as law. Nothing is spiritual or ecclesial in the
process—of course one can presume that these people prayed to God for guidance and consider the
common good in creating and approving this Code.

Unlike Church laws where the norms and directives of the Scriptures, Church teachings and
Tradition are strictly and seriously taken into consideration, human laws are generally created
through human reason based on prevailing cultural norms and values which are not necessarily
aligned with the divine teaching. One sociological theory about the law states that laws are formal
formulation of existing practices and customs. When informal sanctions such as ostracism, shaming,
or gossiping are no longer effective in upholding an existing practice, then competent authority
usually passes a law to formalize this custom to ensure effective enforcement. The law then, in this
sense, becomes a legitimizer of an existing value or practice. The problem, however, in this process
is that not all existing practices or values in society are permeated with religious values. More often,
values, particularly political values, are shaped and manipulated by the elite or by those who hold
power in society. Thus, it is probable that legal authority like the Philippine Congress can legislate an
“immoral” or “sinful” social system or practice.
Illustrations Where Law is Legal but Immoral or Unjust
A classic example of an immoral law is the law that proclaimed Martial Law under the former
President Marcos-Proclamation No. 1081 (September 21, 1972). The Catholic Church led by the late
Jaime Cardinal Sin always considered this law as immoral, though legal. Immoral in a sense that
there was no clear moral ground for the declaration of Martial on September 21, 1972. This
proclamation is said to be based on a dubious factual basis staged by the regime and that the approval
by Congress of the declaration of Martial Law was said to be tainted by bribery and corruption.
Martial law has created a litany of human rights abuses led by the military. This was one reason why
the late Senator Benigno Aquino vigorously opposed this Law. Another law related to the Marcos
regime which was legal but highly immoral was the passage of Amendment number 6 of the 1973
Constitution by the Batasang Pambansa, the Philippine Congress at that time, giving the then
President Marcos the legislative power to create laws or presidential decrees which labeled him as a
dictator.

Another illustration of a law that is legal but immoral is the highly biased law against women—the
law on adultery and concubinage in the Revised Penal Code, a law that is basically crafted by male
legislators. This is immoral because this law violates the virtue of justice which requires to give one’s
due in the spirit of Christian love. In particular, its definition and enforcement is highly unequal and
unjust against married women. There are three areas where this law is bias against women. First is
the label of the crime. Both adultery and concubinage refer to one offense of marital infidelity
committed by a spouse legally married by having sexual intercourse with other partners not their wife
or husband. But the law labels and defines this same offense separately by gender. The more popular
and culturally strong label of “adultery” is assigned to Filipino wives who generally and culturally
are expected to be chaste and faithful, while the less known and repulsive term of concubinage is
given to Filipino husbands. Why two unequal labels for one offense of marital infidelity? Moreover,
the legal prescriptions on how this crime is committed also vary and make the wife more vulnerable
to prosecution by the husband. In adultery, a wife can be guilty by having carnal knowledge or sexual
intercourse with another man not her husband under any circumstance. But in concubinage, a
husband can only be guilty of the crime if he had sexual intercourse with another woman not his wife
only under the following three circumstances: by having sexual intercourse with the mistress in the
conjugal home; by cohabitation, that is, it has been established that the husband had and lived
together with the mistress, acting like husband and wife in front of the community; and by having a
sexual intercourse in a scandalous way! Under this definition, a wife can easily commit one count of
adultery for every act of sexual intercourse with her lover in any place and circumstance. But for the
husband, this is not the case. He is not guilty if he did not cohabit with a mistress, if he only brings
the mistress to a hotel secretly or he maintains his mistress in an apartment and goes home after
having sexual relations. Cohabitation as legally defined and required by law is what makes
concubinage difficult to establish in court against the husband.
The second area of injustice is the minimum type of evidence acceptable to the court for prosecution.
In adultery, indirect evidence such as love letters, emails, text messages, pictures showing intimate
moments and the like are accepted in court. In concubinage, only direct evidence such videos,
incriminating pictures, testimonies of people who had personal knowledge of the affair, are accepted.

Finally, the third area of inequality is in the punishment. On the one hand, adultery is punishable by
prision correctional from its medium to maximum terms. The medium period of the penalty for
adultery is from 2 years, 4 months and 1 day to 4 years and 2 months imprisonment. The maximum
period is from to 4 years, 2 months and 1 day to 6 year imprisonment. Simply stated, the longest time
a wife will be imprisoned is 6 years . On the other hand, concubinage against the husband only carries
a penalty of prision correctional in its minimum to medium terms. The minimum period is
imprisonment from six months and one day and medium period is from 2 years, 4 months and one
day to 4 years and one day. Simply stated, the longest time that a husband will be imprisoned is 4
years and one day.4 In one decided case, the court justified this difference of punishment by saying
that it would be highly unjust for the husband to support a probable illegitimate child not his own!
This law is indeed unjust and biased against women and must therefore be repealed by Philippine
Congress.

The more recent law that is considered legal but immoral by Catholic bishops in the Philippines is the
Mining Law of 1995. Enacted in 1995, this law allows mining companies, mostly foreign, to extract
minerals from Philippine soil. The main problem of this legislation which is upheld by the Supreme
Court as constitutional is that most of the mineral-rich land for mining are found in what are called
ancestral domains or land in the hinterlands, occupied by many indigenous or tribal people in the
Philippines in the hinterlands. Allowing miners to exploit their land would drive them away from
their land they occupied since time immemorial, depriving them of their livelihood and destroying
their rich cultural heritage. This is highly immoral since the law violates the basic rights of
indigenous people to life, property and other related rights. The Catholic Church always upholds
human rights and the dignity of people, created in the image and likeness of God. Economic
development can only be moral if these basic rights are safeguarded by the state.

What is Morality?
Probably the vast majority of people think of morality as law, but in fact it can be considered in a
variety of ways”. There are different models to choose from in thinking about morality (Fagan 1997:
34). In fact, various academic disciplines vary on how morality should be defined or described.
Despite this diversity of formulating its meaning, they all agree that morality has to do with doing
what is right and avoiding what is wrong in accordance to one’s adopted moral standards of behavior.
The most popular view of morality is the legal model. This model defines morality, in a normative or
legal sense, as the process of knowing what is right and what is wrong based on given moral
standards or norms.
Anthropologists have alerted us that sense that there is a diversity of culture, religion, and moral
standards around the world. There cannot be one set of doing what is right and what is wrong. Thus,
there are different types of morality existing throughout the world. And Christian morality is only
one—though popular and dominant in the Christian world--of the many moralities adopted by people
in different societies. So we can talk of Hindu morality, Muslim morality, Buddhist morality, Ifugao
morality, Manobo morality , so on and so forth.

When we speak of Christian morality, following the legal perspective, we are simply referring to that
type morality that uses the Christian moral standards in evaluating and judging whether an act of a
person is right or wrong, moral or immoral, or good or sinful. And Christian morality can have
variations since there is not one Christian religion existing around the world. There are Protestant
Christians under different churches, Catholics, Fundamentalist Christians, and other Christian
denominations and sects. Each Christian church can be different in content and emphasis in its moral
standards compared to others, depending on its doctrines and teachings. In the Roman Catholic
Church, Christian morality refers to the process of knowing what is right or wrong based on the
moral standards set by the Scriptures and Tradition, the two inseparable sources of Catholic faith. In
the Scriptures, the major sources of moral imperatives can be the Ten Commandments in the Old
Testament and the Beatitudes in the Gospels. In Tradition, the teaching office of the Catholic Church
called the Magisterium, can be a major source of the official moral teachings and norms.

SUMMARY
Politics can be understood in the general sense as the dynamics of power in society and in a specific
sense of organizing and promoting political parties and participation in elections. It is rooted in
power and authority in society. On the one hand, power is the ability to influence others to act against
their interests. On the other hand, authority is a legitimate form of power or the right to rule. This can
be based on the personal traits of the leader in charismatic authority, on a particular tradition in
traditional authority, or on impersonal laws in modern rational legal-authority. The distribution of
power and authority in the Philippines is highly unequal reflecting the prevailing economic inequality
among social classes in society. The few elite still controls the political and electoral processes in the
Philippines. With strong familism and privatized view of public office, political power are still in the
hands of a few political families constituting political dynasties in the country. This grip on political
power by the elite in the Philippines can be best understood in political concepts such the patron-
client relationship, elite democracy, political machine and patrominialism.

Politics, power and authority in modern state societies are primarily studied in Political Science, a
social science which can be defined as the study of power, authority and governance in human
affairs. Other branches social sciences such as anthropology, economics, history, psychology,
sociology, or human geography also study politics using their respective methodologies and theories.

The law can be understood and studied using the normative approach of Jurisprudence and the
empirical approach of Sociology of law. Jurisprudence, as both used by judges and lawyers,
understands law as “it should be” or according to legal norms. Sociology of law studies the law as “it
is” in actual social practice. To understand the law in contemporary times requires scientific research
and a sufficient understanding of the operations of law in culture and society.

Finally, law and morality are two important social norms in society. Their foundations and bases
are, however, different. The law is basically based on human positive law, while morality is based on
divine law as embodied in the Bible, Church’s teachings and Tradition. Ideally, both must not be in
conflict, since human law is ought to be based on divine law. But conflicts are unavoidable. Thus
what is legal may not necessarily moral or vice-versa. For Christians, the dictates of one’s
conscience must always be obeyed and thus the norms of morality must always be followed even if
it conflicts with the human law and must be ready to take the consequences of their actions.