Lesson 2 – Philosophy of Law

Atty. Sheen Joshua B. Barrieta

University of Santo Tomas - Faculty of Civil Law

and

Rev. Fr. Von Ryan L. Relos

Colegio de la Purisima Concepcion – College of Law

Philosophy Enduring

Why the need to foster Philosophy

Some Hackneyed Questions.

A prolegomena to Philosophy.

Etymologically, Philosophy is a combination of two Greek words

“Philo/s,” meaning “love;” and “Sophia,” meaning “wisdom.” Read and
parsed together, Philosophy means the “love of wisdom.” Philosophy,
likewise, in the strict sense of the term, is the science of all things through
their ultimate causes and principles investigated by the light of human reason
alone.

Later on, we shall explore the technical meets and bounds of Philosophy and
why, when we speak of it, do we almost always refer to Western Philosophy,
the Western tradition of thought.

As students coming to terms with Philosophy as an academic

discipline, if we had them back in college, or as a tool in or a way of life, we
have, at least for once, posed the question: “what is the meaning of it all?”
Alongside this seemingly cliché of a query, inquiries about our origin,
nature and end come to mind:

(1) Why is there something rather than nothing? For example.

(2) Who or what are we?
(3) Why are we here?
(4) What is reality?
(5) What is the principle of life?
(6) Is death the end?
(7) Does God exist?
(8) Do we have free will?
(9) Can our minds comprehend the nature and mysteries of the cosmos?

Fragmentation in Modernity.

Inasmuch as musing about possible answers to these questions is a

delightful use of time, seeking their answers, however, is fraught with
difficulties and pitfalls owing, for one, to the fragmentation of truth in our
modern times.

With Friedrich Wilhelm Nietzsche's proclamation of the death of God,

people today are averse to truth.

The obvious effects of this quagmire, boosted by the irresponsible use of

social media and information communication platforms, can be discerned
from

the proliferation of fake news,

the influx of woke ideology,

the rise and resurrection of anti-Christian [anti-humanitarian] emotivist

principles,

the disregard of our inherent human rights and dignity (of having been
fashioned in Imago Dei), and

the destruction of life, marriage and family.

The study of Philosophy, the love of wisdom, then takes an expanded

meaning. It becomes a quest to introduce moral order into our lives, families,
immediate community and, eventually, our society as a whole.
Fostering of Philosophy.

But while we might stumble and fall in arriving at correct answers, the
fostering of Philosophy as a way of life, our steadfast search for truth, will
lead us to ask the right questions that will set us up ever more farther from
the expedient and truth-deficient axioms of the modern times and ever more
closer to the timeless yet timely and eternal principles of the True, the
Good and the Beautiful – and as law students, we may add, the Just.

This love of wisdom, the reflective grasp of what and how we know, is the
mode through which we can carefully examine whether we are treading in the

[Path of reason]

[Or we have wandered to that of destruction].

footsteps of our Master through the narrow gate or we have wandered to the
wide gate that leads to destruction.

A Return to Philosophy.

Through these years that I have been sauntering in the legal

profession, there is nary a day when I have not returned to Philosophy again
and again to take comfort, to scour for a source of inspiration, indeed, to
search for timeless yet timely wisdom to take on the challenges of the present
times.

In Philosophy remains the noble task of truth seeking, of great assistance in

our quest to build the ideal foundations of our just and humane society.
Apropos, it is in and to this meaningful activity, we shall now turn.

This leads us now to investigate:

What Is Philosophy of Law?

 Preliminarily, Philosophy of Law (JD101) as a subject in Philippine
Law Schools is described by Section 10 of Legal Education Board
Memorandum Order No. 22, Series of 2020 as “A study of the historical roots
of law from Roman times, the schools of legal thought that spurred the
growth and development of law, and the primordial purpose of law and legal
education.”

It should not be confused with “jurisprudence” or “case law” as we

know it under Article 8 of the Civil Code. Instead, it should be understood as
“juris-prudentia” [yuris-prudentia] from two latin words “Juris,” which
means “The Law” and “Prudentia,” which means “Prudence” or, in general,
“Knowledge.”

Thus, the Jurisprudence that we are talking about here is about Knowledge of
the Law as bequeathed to us by the different schools of thought, or simply
put, Legal Theory.

In this course, we shall attempt to distill concepts about the law. Its:

nature (what is law),

classifications (what are the different kinds of laws),

elements (what are the components for the legal ordering of a society),

developments (how did the laws evolve)

and ends (why and to what end/s do we have laws)

of law as posited by the different schools of jurisprudence and major thinkers

in the field with an emphasis on Thomism, that is, the legal philosophy of St.
Thomas Aquinas.

At the end of the course, the students are expected to:

articulate the nature and importance of law,

and explain the following concepts related to the study of law: sovereignty,
justice, liberty, rights, duty, punishment, coercion, among others.

We shall also attempt at an appreciation of why this added update in the

Philippine legal education curriculum, albeit a “small step,” is necessary in
our study of law, in our practice of law and in the formulation and updating
of our incumbent and future laws in our quest to attain and maintain a just
and humane contemporary Philippine society.

We shall have an in-depth discussion about this throughout the course.

For now, it suffices for us to explore first the two separate and distinct
but interrelated concepts that make up the course: (1) Philosophy and (2)
Law.

A Prelude to Philosophy and Law in the Philippines:

The Westernization of the Filipino Mind.

Admittedly, while the Philippines is a Civil Law country, i.e., all our
laws are codified/written [Article 2, NCC; Tañada v. Tuvera], our legal
system is a mixture of customary usage, Roman (civil law) and Anglo-
American (common law) systems, and Islamic law.

As you have read already, the civil code system refers to a legal system based
on coded laws. Some notable examples are:

(a) Code of Hammurabi of the Babylonian Law Code

(b) Justinian Code or the Roman Law Code

The common law system is based on case law or judge-made law that relies
on precedents set by judges in a court case. It is characteristic of English-
speaking countries such as Britain, United States, Canada, Ireland, Australia
and India.

Because of our experience with the Spanish and American regimes, we

evolved a mixed system where our Legislature enact our laws which are
interpreted, developed and applied by the courts whose decisions form part of
the laws of the land.

Islamic law or Sharia law is based on the moral precepts of Islam. It is

derived from four sources: (1) the Qur’an; (2) the Sunna; (3) the judicial
consensus of the Islamic judges; and (4) Analogical reasoning.

But, as philosophers who are interested deep into the “why” of things,
we might ask “why do we trace the provenance of our thought, culture and
laws predominantly back to the West”?

Case Readings

Cruz and Europa v. Secretary of Environment and Natural Resources, et

al. (G.R. No. 135385, December 6, 2000)

QS:

LAW
(1) Discuss the case. What are the facts? What are the issues?
(2) What are the grounds for the declaration of IPRA’s and its
Implementing Rules and Regulation’s unconstitutionality?
(3) How did the Supreme Court resolve the issue?
(4) How did Justice Puno resolve the issue?

PHILO
(1) What gives Spain the right to lay claim over our indigenous
ancestors’ ancestral lands and domains? (Doctrine of Dominium and
Discovery and Conquest)
(2) Is it lawful or at least valid for Spain to do so?

The reason why I assigned the case of Cruz and Europa as part of the
readings in this course is that J. Puno there informs us about the:

(1) coming to be of the Filipino in these archipelago and the

(2) development of our organic legal system and its eventual restructuring of
our laws, as illustrated by the evolution of our laws pertaining to land
ownership.

In short, it tells us about our indigenous past and the first tranche of our
mind’s westernization brought about by Spain’s discovery and conquest of
our lands.

Here, we must note two rival traditions: (1) Spain’s and (2) our Indigenous
Peoples’.

To determine what gives Spain the right to lay claim over our indigenous
ancestors’ ancestral lands and domains and the justification for its validity,
we have to qualify whose standards of legality and validity we are using:
that of Spain or that of our early ancestors prior to our westernization.

From the point of view of our ancestors, Spain dispossessed them of their
historical and natural rights to the communal ownership, utilization and
enjoyment of their land and natural resources.

This brings us to revisit:

THE PRE-SPANISH AGE

The Ancient Filipinos

Before the time of Western contact, the Philippine archipelago was peopled
largely by the Negritos, Indonesians and Malays.

The integration of these groups of people into a common system of living

eventually gave rise to common cultural features which became the
dominant influence in ethnic reformulation in the archipelago.

Of course, later in the third or fourth millennium B.C. other non-native

influences reached our lands and augmented the then existing and arguably
flourishing ethnic strains of our Negrito, Indonesian and Malay forebears.
They were the:

Chinese — whose economic and socio-cultural influences came by way of

the Chinese porcelain, silk and traders; and the

Indians — whose influence found their way into the religious-cultural aspect
of our pre-colonial society.

Living then was primordially and essentially about subsistence. Our ancestors
settled beside bodies of water mainly, we are told, because they came here
using the boat-system, the balangai system. They were the coastal and
riverine communities. Some of them went into the hinterland as well.

From these communities, our ancestors evolved an essentially homogeneous

culture, a basically common way of life where nature was a primary
factor.

Community life throughout the archipelago was influenced by, and

responded to, common ecology.

The generally benign tropical climate and the largely uniform flora and fauna
favored similarities, not differences.

The Early Filipinos

Those times, our culture was fundamentally Malayan in form and structure
and our language can be traced back to the Austronesian parent-stock.

As with every early civilizations not only in our side of the globe, but
throughout, we fashioned concepts and beliefs about the world that we see
and theorized about that which we don’t see or at least not understand.

We had our distinct religion and religious expressions and beliefs. That
early, we already had the premonition of the soul’s immortality after death.
We posited a Supreme Being, Bathalang Maykapal; a host of other deities
according to rank and, we might suppose, the promptness and manner they
responded to our supplications; and environmental spirits.

What is more, we adored the sun, the moon, nature and wildlife, venerated
almost any object that was close to daily life and indicated the importance of
the relationship between man and the object of nature.

Our notion or view of the world around us that influenced our mode of
thinking and living was born out of pre-scientific and spontaneous
cognition of reality.

We observe reality first-hand, but since we cannot decipher its processes to a

great depth, we coded them in our understanding and pass them on to later
generations through myths, folklore and superstition.

The Barangay System

Notable ethnographic literatures inform us that our ancestors organized

their pre-Spanish society under the balangai [barangay] system, mainly
because this was their mode of transportation across our waterways into our
habitable islands and a way for them to form cohesive units for survival and
subsistence.

It was basically a family-based community and consisted of thirty to one

hundred families, ruled by a particular “dato” who was the executive,
legislator and judge and was the supreme commander in time of war. His
duty were to rule and govern his subjects and promote their welfare and
interests.

Coincidentally, it is the Tagalogs' term for the smallest political unit of

the Tagalog society. We later on adopted this “barangay” system as one of
our Republic's territorial and political subdivisions.

The Franciscan friar Juan de Plasencia gave us a glimpse into this political
and social system of communal organization. He said:
 “These [datus] were chiefs of but few people, as many as a
hundred houses and even less than thirty; and this they call in
Tagalog, barangay. And what was inferred from this name is
that their being called this was because, since these are known
from their language to be Malayos, when they came to this land,
the head of barangay was taken for a datu, and even today it is
still ascertained that one whole barangay was originally one
family of parents and children, slaves and relatives.”

Familial Tradition vs. State of Nature

Because we now live together in close proximity, there has to be a way

of organizing things. Being the “Autonomous” but “Social Beings” that we
naturally are, nature, necessity, conflict and contract played a role in the
coming to be of the governance of our community.

Well, a classic explanation to this is the one bequeathed to us by the

social contract theorists, namely, Thomas Hobbes (1588-1679), John Locke
(1632-1704) and Jean Jacques Rousseau (1712-1778).

For Hobbes — this is just a theory on understanding the coming to be

of governance, not necessarily a historical fact — before entering into the
civil society, we individually are in a state of nature — “a constant and
violent condition of competition in which each individual has a natural right
to everything, regardless of the interests of others.”

It’s a “war of every man against every man” for survival. “The only laws that
exist in this state of nature are not covenants forged between people but
principles based on self-preservation.” In this state, there can be no justice,
commerce or even culture.

That is why, for mutual co-existence of each individual, they have to

agree to each shed off a portion of their sovereignty to a higher civil
authority, the Leviathan. This authority, in turn, is absolute over all its
subjects in the sense that no one is above its will, which is the law.
 Locke — in the second of his Two Treatises of Government argued that
while there is a state of nature, this does not give individuals a blanket
authority or discretion to do as they may please to attain the ends that they
determined for themselves.

While in this state, humans are free, equal and independent, they are obliged
under the law of nature to respect each other’s right to life, liberty and
property.

To better protect and institutionalize this, individuals agreed to form a

“commonwealth” to institute an impartial power capable of settling disputes
among them and redressing wrongs and injuries.

Thus, it can be said that Locke advocated one of the elementary principles of
political liberalism: “there can be no subjection to power without consent —
though once political society has been founded, citizens are obligated to
accept the decisions of a majority of their number,” made via the legislature
whose members, ultimately, are chosen by the people.

Of course, each individual’s obligation to obey the civil government is

conditioned on the latter’s protection of their natural rights because at the
fundamental level, when the civil government cannot stand up to this duty, or
when any of the individual members violate the terms of mutual co-existence,
they can be overthrown as a matter of self-preservation of those who are
steadfast in upholding the social contract.

Rousseau — in his Discourse on the Origin of Inequality, argued that

in the state of nature humans were solitary but also healthy, happy,
good, and free. Inevitably, “nascent [emerging] societies” were formed when
people began to live as families and neighbors.

This, however, had a negative side effect. Rousseau observed that this could
give rise to negative and destructive passions such as jealousy and vice.
This is compounded by the advent of ownership of private property.

This is where the role of the Civil Society for Rousseau comes in:
(1) to provide peace for everyone and
(2) to ensure the right to property for anyone lucky enough to have
possessions.

He envisioned that people could actualize a genuine social contract, one in

which people would receive in exchange for their independence a better
kind of freedom, namely true political, or republican, liberty — such
liberty is to be found in obedience to what Rousseau called the volonté
générale (“general will”)—a collectively held will that aims at the common
good or the common interest.

Our history books and the case of Cruz and Europa v. Secretary of
Environment and Natural Resources tell us, however, that “the social order
was an extension of the family.” Rightly so, and for good reasons.

Humans don’t just spring out of nowhere. We are born into a family,
into a particular tradition and we are nurtured by our kin. As we go through
the stages of human development, our view of reality, or our world-view, is
shaped by what we have gained from them, by instruction or by
observation.

Let us call this as our “Rationality” — from the word “ratio” or “reason.”

For Professor Alasdair MacIntyre, a Thomist Philosopher of the

contemporary period of Philosophy, meaning an adherent of St. Thomas
Aquinas’ Philosophy, rationality is the collection of theories, beliefs,
principles, and facts that we, humans, use to understand, judge and act
in the world.

A person’s rationality is, to a large extent, the product of that person’s

education and formation handed down from the traditions of his or her
community. For this reason, our rationality is “Tradition-Constituted.”

In practice, we organize ourselves, our immediate families, and our local

communities using the structures, concepts and ideas that we have been
accustomed to in our tradition from our elder generations.
 And, having learned that these traditions can structure our way of life in
the manner that will not only cater to our survival, but to our propagation, we
universalized these concepts, that is, we evolved them into laws and
customs for our daily observance, mainly for the fulfillment of our kinship
obligations.

Thus, our ancestors evolved early laws that were either customary or written.

Customary laws were handed down orally from generation to generation and
constituted the bulk of the laws of the barangay. They were preserved in
songs and chants and in the memory of the elder persons in the community.

Some examples of these are:

(1) The Maragtas Code by Datu Sumakwel of Sulu at about 1250 A.D.
(2) The Muslim Code of Luwaran; and
(3) The Principal Code of Sulu.

However, rationality has, on its flip side, a “tradition-constitutive”

element. Meaning, there comes a time in our co-existence and co-
dependence with one another that we encounter novel problems or situations
that our established practices, customs or traditions can no longer resolve.

“Such events, when fully recognized, demand creative solutions, and it may
happen that some person or group will discover what appears to be a more
adequate response to those problems.”

It may also happen that rival traditions, seeding their ideas,

practices, customs and beliefs in the public consciousness of the concerned
group of people, will influence or wipe out their rationality, their
established traditions and practices.

To the extent that we adopt these new solutions, approaches or view of things
and pass them on to subsequent generations (for better or for worse), the
rationality of those responsible for the new approach or view becomes
“tradition-constitutive.”
 This happened with our ancestors with the coming here of the Chinese
traders and Indians.

It also happened when Islam was introduced into the archipelago in the 13th
Century, particularly in Maguindanao, that led to the establishment of the
Sultanate of Sulu which claimed jurisdiction over territorial areas represented
today by Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga.

But the full-blown “tradition-constitutive” side of rationality can

really be discerned from the introduction of our people to Western ideas
and ideals by the European conquistadores.

This leads us now to Spain’s point of view at the time of the Spanish
Conquest of the Philippines.

The Spanish Conquest

The pristine order of things took a different turn in the 16th century.

The discovery of our shores in Mactan by the Portuguese navigator Fernão

de Magalhães back in March 16, 1521,

the naming of our islands of Leyte and Samar as Filipinas, a name which
the future colony will later be known, by the Spanish expeditionary
commander Ruy López de Villalobos in 1542 and

the evangelization and eventual Christianization of the indios bravos by

the different Catholic Religious Orders

kindled the flames that, later on, would not only incinerate and relegate
our pre-colonial tradition to ashes, but also set up the conditions
necessary for the westernization of our minds – for our “consciousness” to
adapt the Western systems of thought and culture, an institution heavily
founded upon the Judeo-Christian religion which, at the turn of the 1 st
century's beginning and until today, is still up and running.
 Eventually, Spain conquered the majority part of our islands and from
1565 to 1898, maintained sovereignty over them as a gobernacion of the
Viceroyalty of Mexico, Spain's American empire.

“For the greater part of these 333-odd years, the Philippines, like all the other
Spanish colonies, was chiefly governed under three main laws: the Siete
Partidas, the Nueva Recopilción, and the Recopilción de las Leyes de las
Indias.”

Of course, on top of these compendium of laws, other specific laws were in

force such us – and these are the notable among them which etched their way
into our own collection of laws –

Codigo Civil de 1889, the predecessor of our Civil Code,

Codigo Penal de 1870, the predecessor of our Revised Penal Code, and

Codigo Comercio, the predecessor of our Code of Commerce.

So, what gave Spain the right and justification for their actions were
their notions of:

The Power of Dominium and the Doctrine of Discovery and Conquest

In the case, we are told of the State’s power of dominium — the capacity of
the State to own or acquire property by virtue of "discovery" and conquest,
which extended to their exercise of sovereignty not only over our islands, but
also over all the Indios.

This was the foundation for the early Spanish decrees embracing the feudal
theory of the Regalian Doctrine or jura regalia.

Consequently, all lands became the exclusive patrimony and dominion of the
Spanish Crown.
How did this come about?

Our story begins in the high towards the late Middle Ages, particularly in the
11th to 15th century.

By that time, after the fall of the Western Roman Empire in the 5th century
A.D., Christianity had already established itself as one of, if not the,
dominant tradition that has the authority by Divine Right (that
is,______________) to regulate the affairs of the people, at least in Europe
and by extension, over the lands they discovered and subdued.

Because of the Christian empire’s expansion, there spawned a debate on

whether or not non-Christians could possess dominium or lordship (the ability
to possess authority, property, land, etc.).

Two important views emerged:

(1) Pope Innocent IV (1243-54) expressed the view that non-Christians

possessed the power of dominium or lordship over their property and they
could not be dispossessed thereof simply because they were not
Christians. However, if a nation violently prevented peaceful missionaries
from entering the land, then Christian soldiers could be sent to ensure the
security of the missionaries, even deposing the non-Christian ruler if he
were intent on persecuting the Christians within his borders.

(2) Hostiensis, a canon lawyer, however, opined that with the coming of
Christ, every office and all governmental authority and all lordship and
jurisdiction was taken from every infidel lawfully and with just

Innocent’s view prevailed. However, Hostiensis’ thesis gained popularity and

held sway in the world of geopolitics as European conquistadores began
using this view as justification for their subjugation of lands held by the non-
Christians people.

This growing consensus among the European powers was bolstered with the
proclamation of three Papal Bulls from 1452 to 1493.
Dum Diversas (1452) and Romanus Pontifex (1455) issued by Pope
Nicholas V, granting and confirming to the King of Portugal “full and free
permission to invade, search out, capture, and subjugate the Saracens and
pagans and any other unbelievers and enemies of Christ wherever they may
be, as well as their kingdoms , duchies, countries, principalities, and other
property…”

Inter Caetera (1493) issued by Pope Alexander VI immediately after the

return of Christopher Columbus from the West Indies granted to Spain all
lands discovered west of a meridian 100 leagues west of the Azores, provided
they were not already in the possession of any Christian ruler.

In essence, the Pope gave Spain the rights of conquest and dominion over one
side of the globe, and Portugal over the other.

Treaty of Tordesillas — on June 7, 1494 Spain and Portugal met at

Tordesillas, Spain and signed a treaty moving the line west of Cape Verde.
This new line gave Portugal more claim to South America as well as control
over most of the Indian Ocean and the exclusive right to pursue trade routes
around Africa.

The Treaty of Tordesillas divided the world into two exploration and
colonizing areas: the Spanish and the Portuguese.

Fundamentally, these divisions became known as the Doctrine of Discovery

which gave European Christians legal right to discover all lands occupied
by non-Christian peoples merely by setting foot on it.

Of course, a similar agreement (the Treaty of Saragossa) was later reached

for a line dividing the orient, such that Spain and Portugal each claimed
authority over half the planet.

The Charter of Henry VII to John Cabot (1496) —

Admittedly, we have our own customs and traditions pertinent to land-

ownership. But whose standpoint should prevail? The standpoint of that
which wields unparalleled power — Spain’s.
Fortunately, recent developments in Indigenous Peoples Rights allow for the
return to them of the ownership over their ancestral lands and domains. This
is a manifestation of the natural law theory concept of justice in our legal
system — that virtue that enables us to render to each person that which is
his or her right, what is due to each person, what each person ought to
receive.

So it was that we fell into the hands of Spain. And so it was that the
tradition-constitutive rationality of the West had an initial spar with our
indigenous tradition-constituted rationality, making way for our
rationality’s initial Westernization, which will undergo a full scale
transformation with the advent of Secularism brought about by the United
States into our lands.

The Enlightenment Period

A century after Spain's colonization of the Philippines, while our

people have been acculturating the Spanish customs, mores and outlook, a
powerful revolution was brooding over Northern Europe: the enlightenment
age.

By mid-seventeenth century, three processes were under way that would

eventually transform Europe from a society of religious people, living in
small, static, tightly knit communities … into a set of highly individualistic,
dynamic, and open societies:

(a) the cooling off of religious wars, that would eventually give birth to the
separation of the church and the state that we know of today;
(b) the rise of modern science with the dissent of Nicolas Copernicus
against the long-held Geocentrism, proposing in lieu thereof his Heliocentric
model of the universe or, at least, the solar system;

Galileo Galilei's confirmation thereof using the vivid lens of his telescope;

Sir Francis Bacon's popularization of the scientific method;

Rene Descartes' articulation of the “Cogito” that had fostered the scientific
method, his invention of the Cartesian coordinate system and analytic
geometry that laid the foundation for the development of calculus, and his
contribution to optics; and, of course, the father of modern science,

Sir Isaac Newton who revolutionized our understanding of the physical

world through his Philosophiae Naturalis Principia Mathematica that laid the
groundwork for modern physics; and (c) the upending of the religious
monarchial hegemony and break down of the “divine right of kings” rule
by the Northern European Enlightenment theorists.

Awed by the starry heavens above and the moral law beneath, Immanuel
Kant articulated the rallying cry of the European Enlightenment Era: In Latin:
Sapere Aude! Which can be translated in English as: Dare to know!

To him:

(1) every human being has a duty to think for him or herself and not merely
accept doctrines on authority;
(2) this duty is interwoven in a complex way with a realm of public
discussion; and
(3) the doctrines of the churches, and other voluntary institutions, need to be
mutable.

So it was that this modern era, proud of its accomplishments, “regarded itself
as the period that took Europe from the 'darkness' of religious dogmatism,
social hierarchy, political absolutism, and an indifferent understanding of
nature, into the light of free inquiry, egalitarianism, liberalism and a deep
and far reaching natural science.”

Nietzsche even went so far as to characterize modernity as the age when we

have killed God. He said in his book The Gay Science: The Joyful Pursuit of
Knowledge and Understanding, in part, that: “God is dead. God remains
dead. And we have killed him.”

Professor MacIntyre (After Virtue) commented that the “self,” that is to say,
the modern self, had already been “liberated from all those outmoded
forms of social organization which had imprisoned it simultaneously within a
belief in a theistic and teleological world order and within those hierarchical
structures which attempted to legitimate themselves as part of such a world
order.”

While postmodernism would later counteract the modern enlightenment

principles, remnants of these two traditions of thought would linger and
spread all over Europe just in time of the arrival there in Spain of our
Illustrados who will adopt these theses and marshal them into our islands to
free our people from the tyranny of the colonial rule.

Philippine Enlightenment

Creole Nationalism

In the Philippines, before the Ilustrados commenced their travels to Europe,

an early form of nationalism emerged from the Creoles (Spaniards who were
born in the Philippines, also known as the Insulares).

The most famous of them were the Three martyred priests: Padre Mariano
Gomez, Padre Jose Burgos and Padre Jacinto Zamora.

We can deduce that, on top of their natural inclination and advocacy for
equality of rights among the Catholic priests and the secularization of the
clergy in the Philippines, they have encountered the Scholastic Legal
Tradition of Natural Law which was being taught at the Faculties of
Philosophy, Canon Law and Civil Law (for Padre Zamora), when they
entered the auspices of the University of Santo Tomas to study for priesthood
in the Seminary.

Preliminarily, Natural Law refers to laws of morality ascertainable through

human reason. Moral philosophers have posited that such laws are antecedent
and independent of positive, man-made law.

As a legal philosophy, it forms the basis and foundations for legal traditions,
it being a body of rules prescribed by an authority superior to that of the state
and intended to protect individual rights from infringement by other
individuals, nation-states, or political orders.

GomBurZa’s advocacy for equality, however, was met with heavy opposition
and malicious criminal imputation against them for taking a supposed active
role in the Cavity Mutiny. Eventually, they were sentenced to death by
garrote — or strangulation.

Be that as it may, their testament fanned the embers of hope that animated
Dr. Jose Rizal’s sequel to Noli Me Tangere, El Filibusterismo, which novels,
in turn, opened the minds of the reading public to the idea of freedom and
liberty from the corrupted and corruptible religious and monarchial
hegemony.

So began the rise of our Ilustrados who encountered in Spain the Liberal
Ideals of the Enlightenment.

To the Rise of Ilustrados

Foremost of these ideas, that heavily influenced the publications of La

Solidaridad, was Krausism, the philosophical current inspired by the ideas
of German philosopher Karl Christian Friedrich Krause (1781–1832) and
his most prominent disciples, German legal scholar Heinrich Ahrens (1808–
74) and Belgian philosopher Guillaume Tiberghien (1819–1901).

Krausism is a philosophical movement of liberal humanism that advocates

social, legal, political, and educational reform, and which was very
influential in Spanish and Portuguese speaking countries during the second
half of the nineteenth century and early twentieth century.

Notable of its theses are:

(1) the idea of the state as the institution responsible for the fulfilment of
the law, that is, the state has the duty to provide the conditions in which
individuals can achieve their goals in different spheres of life (education,
economic, scientific, religious) — what we now know as Parens Patriae.
(2) the idea of self-government of society — a position that views people as
social beings by nature (humans are naturally sociable) and that via free
association can fulfill all their objectives, without the state having to
intervene.

(3) Advocating for harmonious relationship — they openly refuted the

antagonistic (and conflictive) relationship between the individual and the
state, trying to overcome that opposition by creating a series of
intermediate bodies or free associations. Spanish Krausists therefore
promoted and became active members of the Association to Abolish
Slavery, the association for the Free trade, the Association for the
Progress of Sciences, the Association for the Education of Women…

(4) More importantly, krausism iterated the very idea of the primacy of the
Rule of Law (Rule of Law; taken from the Kantian concept of
Reechstaat).

(5) Finally, they considered that forms of government are but “incidental
details” — They believed that – according to Ahrens – there was no
preference between the classical forms of monarchy or republic.
What is important is that society develops while guaranteeing the
freedoms and rights of individuals. In other words, that what mattered
was not the form of the state, but the content, that society was sovereign
in a context of freedom and democracy in keeping with the culture of
every people at every historical moment.

The Ilustrados used these liberal principles in their struggle to fight for the
political rights of Filipinos, which were supposed to be the same to that
possessed by Spaniards. Also they aimed to secularize the parishes in the
Philippines, and to render the Philippines a province that availed itself of
equality under the Spanish system.
We built our society upon this foundation. And so upon this framework, our
mind operates.

The American Era and Secularism

Thus, when we think about law and philosophy, we almost always approach
it using the Western definitions, criteria and categories.

The Classical and Some Definitions

 Our story begins in the Oracle of Delphi.

But as a prelude, and as we are interested in the what and why of

things, we might ask: “Why contextualize the discussion, or why start, with
the Classical and Scholastic Traditions?”

The simple answer is because of our colonial and Western heritage. We

built our society upon this foundation. And so upon this framework, our mind
operates.

Tradition-constituted rationality = to tradition-constitutive Rationality. Yes,

history attests to the many atrocities committed in the name of religion, but
our Judaeo-Christian tradition gave us the platform for truth-seeking so much
so that in the last 2000 years provided us the platform upon which we have
evolved the sciences that now dominate our social interrelations.

Spain Colonized us. Spanish Constitution – Catholicism as State

Religion; Missionaries catechized and informed us in Christian faith and
morals.

TREATY OF PARIS – we were ceded by Spain to the USA.

The word Philosophy is a contraction of two Greek words “Philo” and

“Sophia”, literally translated as “the love of wisdom.” According to the
Scholastic Tradition of Thought, of which St. Thomas Aquinas is one of its
renowned and revered thinkers, Philosophy is

“He who has a taste for every sort of knowledge and who is curious to learn
and is never satisfied may justly be termed a Philosopher.” – Plato, Republic.

To better appreciate this, we turn to the Scholastic Tradition's basic

description of a person's composition and operation. According to this School
of Thought, of which St. Thomas Aquinas is one of its renowned and revered
thinkers, a person is endowed with Intellect and Will.

Value Theory
to
Natural Law
to
Civil Law
to
Virtue Theory

As a prelude, though, let's travel back in and through time and take a
quick glance at how far we have come as a State.
History of Cognition
Development of Philosophy
The Reign of Theology
The Branching out of the Sciences

Being the “Autonomous” but “Social Beings” that we naturally are,

nature, necessity, conflict and contract played a role in the coming to be of
the governance of our community. Left alone as adults, of course, we
individually are autonomous and self-reliant. There’s this conflict theory
proposed by Thomas Hobbes in ________. He argues that _________.

So, in pursuit of our sustenance, that includes expansion of territories and

dominance, we come in contact with other equally self-reliant people that
would

But before reaching that stage, that is, when we are infants and during the
early stages of our development, and after that, meaning, when we reach past
the age of self-reliance into seniority and senility, we need the support of our
kin.

From families and tribes, we entered into a new social order — the pueblo
tell us that

Three main theories have been posited by the philosophers to decipher

Left alone as adults, of course, we individually are autonomous and

self-reliant.

That is why, we evolved our system of laws.

How did our early ancestors do it?

The Familial Tradition

Through the practices in that we have grown accustomed The social

order was an extension of the family

There’s this conflict theory proposed by Thomas Hobbes in ________. He

argues that _________.

So, in pursuit of our sustenance, that includes expansion of territories and

dominance, we come in contact with other equally self-reliant people that
would

But before reaching that stage, that is, when we are infants and during the
early stages of our development, and after that, meaning, when we reach past
the age of self-reliance into seniority and senility, we need the support of our
kin.
The social order was an extension of the family with chiefs embodying the
higher unity of the community.

Laws were either customary or written. Customary laws were handed

down orally from generation to generation and constituted the bulk of
the laws of the barangay. They were preserved in songs and chants and in
the memory of the elder persons in the community.

The written laws were those that the chieftain and his elders promulgated
from time to time as the necessity arose. — Thus, the role of necessity.

Islam’s Introduction to the Archipelago

aaa

SPAIN’S DISCOVERY AND CONQUEST OF OUR ISLAS

laws and customs. Because we now live in a community, we have to

surrender

The role of necessity and conflict Now living together side by side in close-
knit communities, conflicts naturally arise.
 “The operation of these laws – taken separately or in relation to one another
– was never very clear. The result was, frequently, confusion, inefficiency,
corruption, and delay.” The injustices and inequities brought about by the
dynamics of this mess and the abuses of civil and religious authorities later
led our people to revolt against mother Spain.

A similar agreement (the Treaty of Saragossa) was later reached for a

line dividing the other side of the world, such that Spain and Portugal
each claimed authority over half the planet.