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CHAPTER III – THEORY OF LAW

Natural Law – principles, purpose, and end of the law

- Normative jurisprudence – evaluates the purpose or norms of the laws

★ How people behave and are expected to behave

★ Rational, pursuit of reasonableness, justice, equality, and fairness
★ Principles of rational or moral law in the absence of a law or the presence of
a bad law

Application: Article 19 of the New Civil Code

Principles -> Criterion/Value -> Basis for Assessment

- Natural Law becomes the rules for what (the purpose and direction)

★ Central Case Approach – focus and center of law are those ideal cases
where natural rights to basic human goods are served.

The basic goods natural to man are (1) life, (2) knowledge, (3) play, (4) aesthetic
experience, (5) sociability, (6) practical reasonableness, and (7) transcendence
(spirituality and religion).

These basic goods generate natural rights and correlative natural duties.

- Natural Rights become self-evidence and non-derogate, these are

ascertainable and require further proof.
- Satisfaction leads to integral human fulfillment.

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Positivist Theory – authority given to the state or by socially accepted rules.

- Command Theory – obedience to the content and expression of the law

(dura lex, sed lex) and (quod principi placuit legis habit vigorem) what
pleases the prince has the force of law.
- Conventionalism – law is a product of human will, agreement,
proposition, treaties, or convention.
- It is made out of explicit or implicit conformities and resolutions.
❖ Natural Normative Jurisprudence – lex ferenda; what the law ought to
be
❖ Positivism Analytic Jurisprudence – lex lata; what it is

- Overlap Thesis – what ought vs. what is, to cite what the law is.

John Austin argued that the law expresses a desire supported by the credible use
of force or threat of punishment.

- Law is a system of rules, orders, or commands enforced by power.

Legalism – Thomas Hobbes

- While positivism is the rule of law, its extreme utilitarian Hobbesian form is
ruled by the law.
- L’etat c’est moi.

Han Fei Zei - rule-maker makes or unmakes laws as a skill, art, or tactic.
- Absolutism - vests public power in a person or group of persons,
unhampered by any other rule or tradition, institution, or body. (Heaven’s
Mandate)

Soft Positivism – Herbert Hart

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- Law is a system of social rules (rules of conduct) where sanctions for

misbehavior are made through indeterminate means of social pressure and
conformity.

Three defects:
1) Doubts arose as to the precise scope of the rules as there was no
authoritative reference. (Declaration or Text)
2) The static traditional character of the rules as there were no means to
deliberately abrogate defunct customary rules.
3) The absence of an official and consistent body of sanctions

Three Characteristics of Legal Regime:

1) The creation of an authoritative list or text of rules or acceptable standards
of conduct written in a document or carved in the public monument to be
recognized as conclusive and valid. (Rule of Recognition)
a) There is its measure. It is a standard meter, which provides ways for
supplying legal validity.
2) The reference to legislation to make and repeal rules. (Rules of Change)
3) The procedure to be followed to resolve legal disputes. (Rules of
Adjudication)

- Some laws do not necessarily fit the positivist character of a command or

will of the sovereign ruler, such as in contract law where stipulations in a
contract are law between equal parties, not between superiors and
subordinates.

Constructivist Theory – what law means is what the judges of the law read it to
mean.
- Law is more than explicitly adopted rules.
- It has merits or principles that can be interpreted or constructed by courts
to contribute to the growth of law.

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- It is not enough to say what the law says or not, but there are correctible
issues on what the law should be based on some fundamental principles or
values.
- Principles are not beyond or outside the law but reside in the legal
tradition of the community sensed from precedents, policies,
preambles, sources of law, intent, and prefaces.

Two dimensions of legal interpretation:

1. Formal Dimension – logical consistency between principles and past
decision
2. Substantive Dimension – search for principles that best explain or justify
the law, which is construed as having a moral rights-based dimension. It is
the integrity of the law that entitles it to claim our obedience.

A law is not integral when it is not consistent (formal) and when it goes against
substantial rights and principles (substantive).

- Ronald Dworkin stated that since the judge has the duty to reason
according to rights, he has no complete discretion to decide a case.
- The law is a seamless system: in the absence of laws to apply, the judge
must turn to general principles.

➢ Principles and rights are not something already laid down by natural law,
but something still constructed by the adjudication of judges, faced by
novel claims to best accommodate the community’s common convictions.
(Best Fit Theory)

➢ Adjudication is not fixed or objective as natural law theorist claims but

develops according to contemporary standing or practice. Neither is
adjudication subjective or relative, adjudication is open but limited by basic
principles.

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- Chain Novel Analogy - each judge is like a novelist in a team of authors in a

series, that adds a new chapter to the law, interpreting and reinterpreting
the previous chapters made by former writers, and developing the plot to
come out with the best story without making the characters inrecognizable.
- Judges must be coherent and compatible with legal tradition and
have to preserve the integrity of the story. He preserves integrity if
he follows a seriatim what comes before him and when he can
rationalize the composition he is entitled to make out of the law.

Realist Theory – pragmatic jurisprudence that focuses on the human realities

that are often overlooked by hard law, technicalities, and abstract policies. It
brings significance to the question of implementation and whether the law reflects
practical experience.

- To get real.

- Holmes found that the law should not be considered a system of reason, of
ethical principles and axioms, or whatnot. He further notes that the law is
determined by the actual practices of courts, law officers, and law enforcers
in real-world practice.
- Judges must take note that human factors and realities are
unavoidable.
- Decisions must be based on the judge’s idea of justice, conditioned
by his values, background, and acquaintance with social forces.

Holmes’ Clear and Present Danger Test – the question in every case is whether
the words used are made in such circumstances and of such nature as to create a
clear and present danger that they will bring about the substantive evils that US
Congress has a right to prevent. It is a question of proximity and degree.

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Critical Theory – Law of the Status Quo - means to enshrine and coercively
impose the wishes of the dominant group of institutions. It questions the
assumptions that the people and the market are free.

- The ruling classes are the same ones who make the law, judge the law, and
execute the law.
- Governments are of the ruling people, by the ruling people, and for the
ruling people.
- The laws serve as the status quo, revolutions and uprisings are necessary.
- This also exposes the inconsistencies, inhumanities, and imperialism of the
First World Western Democracies. The Clout of the Wester Superpowers
prevents former colonies from seeing the flaws in their legal systems that
are being adopted globally.

This theory is associated with subversives as it aims for a deconstruction of the

law and uses the hermeneutics of suspicion against (1) legal presumptions, (2)
assumptions, and doctrines to advance marginalized.

- Law becomes a form of class rule and control.

Marx – Your jurisprudence is but the will of your class made into a law for all, a
will whose essential character and direction are determined by the economic
conditions of your class.

SCHOOLS OF JURISPRUDENCE

1. The Historical School – Law has a past and a progression.

- It develops in a gradual and evolutionary process that cannot be separated
from its national or indigenous character - from clannish riles, to folk
beliefs, to landmark events that shaped a nation
- It questions the origins of law, reading the law is not enough, one should
understand the historical struggles and national profile/identity that colored
the law.

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Law operates in a specific language, impressed by cultural beliefs, traditions,

customs, temperaments, and common experiences and consciousness (geist) of
people. This will include epics, folklores, religion, and political developments that
provide a window to the sentiments, archetypes, and pass-on ideals.

- Savigny – law proceeds from a voltgeist, it unfolds from the spirit of the
people. Law is written and updated as the people evolve.
- Maine – legal history shows patterns of evolution recurring in different
times in similar circumstances, such as repetitive occurrences of feudalism.
Progress in society is a movement from an emphasis on birth, family, or
caste status to a system based on merits and terms of contract.
- Hegel theorized that the State is the product of converging historical forces
toward an Absolute Point where freedom will finally be realized.
- Inspiration to nationalist policies, but its tendencies to an exclusive love for
one’s country has also been criticized for stirring xenophobia, ethnic
cleansing, discrimination against immigrants, racial superiority, separatist
movements, and opposition to globalization.

2. Functional/Sociological School - means of social control and progress.

- Law as a social phenomenon, as a measure of social trends and
reengineering.
- Balance the diverse interests and institutions of society and promote
progressive national policies.

Judicial activism and judicial legislation - this form of functional instrumentalism

justifies creativity in decision-making being the original intent of the law, if this
would serve public policy, human rights, and social interests.

1) William James - laws as a means to satisfy needs

2) Charles Louis Baron de Montesquieu - law must adapt to shifting social
conditions

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3) R.Von Jhering - law as a method of ordering society composed of

competing interests; legal rules must be used to resolve and harmonize,
rather than provoke or exacerbate conflict
4) Roscoe Pound - to maintain a coherent society it must have a pattern of
culture that determines its ideology; the law’s purpose is to integrate
groups by reconciling, mediating, and controlling different interests
(essential to a dynamic society)
5) Max Weber - institutionalization and bureaucratization of laws that have
become unresponsive to concrete situations.
6) Roberto Mangeira Unger - law must have a cultural context to support it
7) Eugen Ehrlich - legal norm must follow actual social norms and be a living
law

- The balancing of interest test and the compelling interest test are
influenced by the sociological school.
- Recognition of overlapping and competing values and demands
among individuals and demands among individuals and institutions.

Society must survive and adapt to the times by being responsive to an

increasingly heterogeneous and pluralistic society.

3. The Economic Approach – economic jurisprudence and consequentialism – is

a means to increase the balance of happiness in society through wealth
maximization.

Wealth Maximization – the sum of all tangible and intangible goods and services,
an ethic of productivity and social cooperation.

- Holmes – every lawyer ought to seek an understanding of economics.

- Lawyers operate the current political economy and are called on to
consider and weigh the ends of legislation, the means of attaining
them, and the cost.

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- People have to give up something else, and public policy must

analyze the advantage people gain against what they may lose.

- It gets the job done.

4. Formalist and Originalist School - Conceptualism - law is a strict science

governed by formal axioms, legal principles, and rules of logic.

Rules or Principles - major premise

Facts of the Case - minor premise
Holding of the Case - conclusion

- Abstract principles of the law may be deciphered from the form or text of
the law itself, only legal experts or those with formal legal training can best
interpret the law.

Formalism is committed to a set of rules or principles in relation to the

application of legal concepts fixed at the time of the law’s creation.
(Textualism)

Formalism adheres to judicial restraint that constrains a judge from deciding or

opining on what the law should be or should mean other than what the law says
or does not say.
- Incidental to the separation of powers of the three branches of government
- Lawmakers to question the wisdom of the law or to change the law, not the
judge or the implementing agent.

It is called the plain meaning approach in relation to the interpretation of statutes,

and the originalism or the original meaning approach in relation to the
interpretation of the Constitution.

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Originalism – the original intent of the drafters, original meaning based on what
reasonable persons at the time the law was written declare the law to mean in its
initial framework.

- Presence of amicus curiae on laws that are not clear.

- Judges should only interpret, not construct.

Equity of a Statute (Statutory Construction) – operation of a statute a class of

cases that are neither expressly named nor excluded, but which from their
analogy, penumbra, or ejusdem generis.

US Court Justice Antonin Scalia – an advocate of judicial restraint in profounding

new rights or obligations not otherwise intended by the Constitution or the law.

5. Practice Theory – there are different approaches to law, or modalities, that

have their uses.

One should know how and when to use them in making arguments. The
modalities are neutral but expressions of what is true, which must be mastered in
legal practice.

Six main modalities (instruments) to make an argument:

1. Historical - decipher the intent of the framers of the law
2. Textual – what law declares or denies and how it can be interpreted in
contemporary times.
3. Structural – inferring rules from structures and mandates
4. Doctrinal – rules generated by precedent
5. Ethical/Moral - appeal to the ethos or ideals of a government
6. Prudential – exigencies and the calculus of cost and benefits.

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- Each modality has been preferred to advance a certain ideology and some
people only acknowledge a particular approach to the law – the
Constitution.
- We choose our various modalities in lege, there are different methods of
evaluating the law, sometimes based on sensibilities and motivations.

Chapter IV – Natural Law, International Law, and the Classic

Philosophers

The Nature of Mankind - law is a product of social life, and is a creation of human
nature.

- What separates men from other species – is our ability to reason, and self-
consciousness, endowed with the ability to reflect and analyze experience,
to investigate and to innovate, and to look for the causes purposes,
meaning, and reason for things.

Carl Jung – humans also share a collective unconscious (dream or altered states)
based on quantum entanglement and non-biological physical forces, that explain
cultural archetypes and psychic phenomena.

Laws of reason and logic are operational and applicable in conscious life, but the
subconscious and altered state is more open to spontaneity and possibilities,
including the paranormal, the surreal, and the miraculous.

Rationality governs how we act in our conscious states and puts order into chaos.
The human ability to reason from right and wrong, fair and inappropriate, equity.
- The human desire for self-preservation and perpetuation
- Humans -> political animals -> rise of political institutions

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Humans have identities that come in the form of our liberties to express
ourselves. Minds think in structures, and order in society, we need the rule of law.

Phases of Natural Law Theory

1) Classical Phase by ancient Greek and Roman philosophers who believed
that human reason is common among men and along with this, the
common precepts of right law and equity.
a) Virtue jurisprudence – Virtue Ethics
- Laws that in the highest heaven had their birth, neither did the
race of mortal men create them, nor shall oblivion ever put
them to sleep.

2) Scholastic Phase – natural law is a man’s participation in eternal law.

a) Thomism – St. Thomas Aquinas

3) Enlightenment or Modern Phase - natural law as a basis for natural

rights and duties.
a) Kant’s reformulation of the Golden Rule into the Categorical
Imperative – always acting the way one would like his act to be the
universal rule. (Dentology)

4) International Law Phase – generally accepted principles of law and

international rights (common law for mankind)

Civil Code Commission made use of natural law to warrant the

incorporation of natural obligations. (equity, morality, fair dealing, natural
justice — foundations of all positive law)

Common experiences that arise from common aspirations and desires can
be the basis of shared points and common rules.

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WRESTLING FOR IDEAL LAW

- Socratic Method - dialogues or question-and-answer dialectic has been the

preferred formula of teaching in law school in the US and PH – to decipher
if the student understands what the law is saying and if they can stand
debates and cross-examination.

Two Phases in Plato’s Legal Philosophy

1. The Republic – the statist type of regime by a benevolent dictator (iron-
fist strongman). E.x. Singapore

- Utopian forms of government, where the State plans society

according to ideals, an ideal embraced by Fascism and Communism
alike.
- World of Ideas, with justice in its purest form, wherein our world is
only a show of the perfect world. The ruler is expected to get society
close to the perfect form.

Natural law is not the law of the common man or the popular law of the
majority, but the law of the ideal man.

- The ideal man does not exist, and yet we have a common idea of what a
perfect man should be and this should be the goal of law
- Our political Constitution is meant to build an ideal government. We expect
justice to be served and truth to come forth even when we know that life
can be unjust or politics can be corrupt.
- Without ideals, we cease to aspire, we simply resign, get passive, or
worse, despair. If we are to base our legal expectations on the actual
state of things, we may not improve at all, or work for higher
standards of living.

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An enlightened leadership is what is necessary. The dictatorship of the

philosopher is justified since not everyone can be expected to be reasonable and
capable of self-governance. But the dictator himself must exude virtue and is not
allowed to hoard private poverty.

2. Laws and Preambles – the rule of law as a substitute for the rule of the
philosopher.
- Reason of thought must be embodied in laws, and laws must
have a preface so each citizen can understand the reason
behind the law. (preambles and explanatory notes in law)

ARISTOTLE ON RATIONAL LAW

Aristotle – the father of Biology and Natural Law – articulated the existence of
natural justice or natural right (dikaion physikon)

- Observed that humans have a rational nature that must be followed as a

matter of law.
- Natural law must not be confused with animalistic biologism, because man
is a moral creature and has advanced from primitivity. The best political
system is supposed to cultivate human nature.

Nicomachean Ethics – happiness is the final goal/end.

People seek different goof, so do they have different views of what can
make them happy. A common function that separates them from other species —
reasoning.
- It is what makes us perceive what is excessive, pursue a blanched life, and
seek what is appropriate, fair, just, and right – the golden means of living.
- Virtue is the practice of reason. A happy person has the disposition to
virtue; being a man of character, or moderation. Capable of doing things at

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the right degree, at the right place and time, for the right reason and
person. Not on doing good but being good.

Democracy as the Best Form of Government

- Aristotle distinguished six types of constitutions:
1. Monarchy – one-man rule; risk the intemperance of its leader
2. Aristocracy – rule of a few good men; rivalries and infighting
amongst themselves
3. Polity – rule of men with equal merits; the most stable
4. Tyranny
5. Oligarchy
6. Radical Democracy

- Aristotle believed that a good government must establish a political law

that conforms with the rational principle of right and equity.
- Requires a constitution - general rules and guidelines on the
administration of the State. For administrative functions, laws must
be promulgated.
- Equity is the theme in the proper application and interpretation of the
law.
-
Syllogism and Legal Reasoning
- Being logical is the foundation of real knowledge.
- Importance in critical thinking and proof that men have a common
reason and they can agree on logical categories and abstract ideas.
- Unequivocal terms and the three judgments with the logical necessity of
Categorical Reasoning:
1. Minor terms - subject term in a conclusion
2. Major terms - predicate term in a conclusion
3. Middle terms - a common term that connects the major and
minor terms not found in the conclusion but in the premise.

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- Premise - a proposition that supports, justifies, or grounds evidence for

another proposition.
1. Major premise – first interference given in an argument and is
a general statement
2. Minor premise - particular statement/inference leading to a
conclusion.
3. Conclusion - being supported or affirmed by the premises;
validation of truths
- Polysyllogism - a series of inferences made
- Enthymeme - in the mind; unstate argument
- Syllogism - becomes valid if it follows from true premises.
- Rules of valid syllogism
1. A negative premise makes a negative conclusion.
2. The middle term should be universal and always true.
3. There should be three univocal terms used in a
syllogism with two of the three terms appearing in pairs
per inference
4. The conclusion must not be greater than the premises.

- Hypothetical reasoning - compound propositions implying each other as

syllogisms. Not speculative in direct or cross-examinations for being
speculative, if the witness is an expert on the field of inquiry.

1. Conditional Syllogism - a condition that the antecedent is true. (if-then

clause)
a. Property Of the antecedent to produce/affect the consequent
b. if the antecedent is true, the consequent is true
c. if the antecedent is false, the consequent is doubtful
d. If the consequent is false, the antecedent is false
e. if the consequent is true, the antecedent is doubtful.

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2. Disjunctive Syllogism - only one statement is true between the

alternatives. (Either-or clause) Two alternatives -must be contradictory or
mutually exclusive. If one is false the other is true.
3. Conjunctive Syllogism - denies the simultaneous possibility of two
alternatives, in a ‘not-and-both’ form.
4. Both cannot be true at the same time, but if one turns out to be false, the
other may be true or not – like in defenses of alibi.

STOICS ON JUS NATURALE

- Natural law was used as a practical solution to justify laws that would be
made universal.
- Jus gentium is founded on jus natural.
- There is a true law discoverable by right reason and shared by and
enforceable against all persons.
- Seneca – the State Experiences one when its citizens fish unlimited
artificial or luxuries instead of being satisfied with provisions of nature that
are enough for human needs
- Cicero – Law ought to be a reformer of vice and an incentive for virtue.
Law inheres to the idea of what is just and true. neither can a statute be
called law if it is irrational, destructive, and unjust. For it is an ancient and
natural standard for human laws to inflict punishment upon the wicked and
to defend and protect the good.

AQUINAS ON NATURAL INCLINATIONS

Thomas Aquinas – The universe is governed by divine reason through an eternal

law. – natural law – the nature of man to know what he ought to be and ought to
do.

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- Aquinas is different from other philosophers in his argument on the

necessity of divine law.
- Natural law is enough to guide man on his natural ends, divine, law
is needed for man to realize his supernatural ends.
- Divine law for people to ultimately appeal to.
- Five natural inclinations:
1. Do good and avoid evil
2. Sustain our being towards self-preservation
3. Perpetuate ourselves, the exercise of reason
4. Live in a community with other men
5. Use reason and will to know the truth and to make our own
decisions.

Natural Law -> Human Law

- Natural law is a general guide with which human law must fill in details and
the gaps through statutes.
- Natural law does not change because human nature relatively stays the
same.
- Changes are the exigencies and current technologies, the application
of natural law to particular cases, and the observance and
articulation of human law.
- Natural right - borne out of equality
- Positive right – borne by agreement, either by private agreement among
individuals, or by public agreement, by rule and the community.

Francisco de Vitoria - natural law into the universality of rights

- No group of people has dominion over another because, in the beginning,
everything was common to all.

Francisco Suarez – no man-made law can override natural rights to life and liberty
and the king is just like any man subject to natural law.

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ENLIGHTENMENT PHILOSOPHERS ON NATURAL RIGHTS

Declarations insist that the Declaration of Independence is a natural law document

that should guide American Jurisprudence.

- Human rights are rights that flow human nature (demands and dignity of
being human) – inherent to all human beings

Positivist - rights are conventional and borne from positive acts of the ruler and
subjects
Natural - natural and inherent, need not be created, only recognized.
- Society is a contract with natural rights as part of the foundational terms
that cannot be stipulated away.

NATURAL LAW AS THE LAW OF NATIONS

Hugo Grotius - Father of International Law – natural law as the basis for a law of
nations

- Law of nature is to abide by pacts mutually consented to and entered into

in good faith, and this, among states, treaties must similarly be honored
(pacta sunt servanda) on the basis that humanity has things in common
that make citizens of all nations equal.

William Blackstone – natural laws are eternal immutable laws of good and evil
that enable our reason to discern.
- Mala in se – wrong in themselves, wherein man is bound by conscience
- Mala prohibita – wrong because they are forbidden; no guilt

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Declaratory theory of precedent – judges do not create, declare, expound, or lay

down the existence of a custom, expressing commonly shared values.
- Common law is the accumulated wisdom of ages. (The judge is a living
oracle of the law who gives witness to it.)
- Natural reason has dictated to all men is the law of nations – cannot be
dictated by any particular State, or by any man, but depends entirely upon
the rules of natural law on the equality of men and mutuality of contracts,
treaties, leagues, and agreements.

Jacques Maritain – first universal document grounded on natural law theory –

Universal Declaration of Human Rights.
- Natural imperatives are known through our direct acquaintance with human
experience (connaturality)
- International law developed through an understanding that there are
universal aspirations common to humanity, demandable everywhere as a
matter of right, and must be made available to everyone.
- Nuremberg Trial and Yamashita vs Styer.

Jus Cogens – compelling law - gives to international norms that are considered
peremptory and from which no derogation is allowed under any circumstances.

CHAPTER V: THE ROMAN JURIST

I. Roman Law: all codes lead to Rome

Rules of life were quipped by the ancients into wise sayings so these might be
easily, recalled, grasped, and preached.
- The ancient Romans turned their civil axioms into legal maxims – to
crystallize with its laconism a thousand past experiences in humanity's
eternal quest for what is just and right.

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John Zane’s The Story of the Law traces the legal profession to the Roman court,
made up of “jurists” and “advocates.”

1. JURISTS / JURICONSULTS
- announce the principles of justice in applying the law.
- duty was to advise and counsel, but under Augustus, their function became
a public office providing responsa, sententiae, or regulae as a case
demands, similar to modern-day justices establishing jurisprudence
- Edict - a collection of principles of justice that supplemented custom and
statute

2. ADVOCATES
- The head of the clan
- an influential and persuasive person like Cicero and Pliny, to represent
clients in his public appearances for free.
- deliver speeches, write treatises, and draw wills, consultations, and
pleadings in court.

● Latin maxims are very proverbial since the Romans believed that what is legal must be moral.
Ius in Latin means “law.” It also means “right.” A Latin legal principle imposes majesty and command
because it has the elements of what law should be: crisp and clear.

● The Romans also made use of the natural law theory to justify the universal application of jus
gentium as the law of the nations, while applying the jus civile for its Roman citizens. The law of
nations must be the law common to all, which is natural law (jus naturale). It was the Roman emperor
Marcus Aurelius who incorporated Stoic natural law philosophy into Roman law.

● The Corpus Iuris Civilis or the Justinian Code (534 A.D.) was a collection of existing Roman
laws made by a group of scholars. It is composed of four (4) books:
1. The Codex Constitutionum (code of ordinances)
2. Digest or Pandects (common law )
3. The Institutes (introduction to the law for law students)

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4. The Novellae Constitutiones Post Codicem (supplementary new laws)

• The new Civil Code of the Philippines in 1949 considerably followed the
Justinian structure with:
1. Book I on Persons;
2. Book II and III on Property, Ownership, and its Modifications, and the
Different Modes of Acquiring Ownership; and
3. Book IV on Obligations and Contract

BREAKING THE CODE

Roman law used to be a subject in the Philippine Legal Curriculum

● Institutiones - to be read to understand civil law, since the structure, definitions, distinctions,
enumerations, and provisions of the Civil Code can be traced to Roman Law. It also provides brief
explanations and illustrations.

ON THE NATURE OF THE LAW

The precepts of the law are:

1. To live honestly;
2. To injure no one; and
3. To give every man his due.

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The laws of states are governed by statutes. These are partly peculiar (civil law),
and partly common to man (law of nations). The latter refers to rules prescribed
by natural reason for all men to observe as the necessities of human life. The
common nature of man is the reason for the mutuality of contracts; for instance,
sale, hire, partnership, deposit, loan for consumption, and others (Inst., Title II,
1).

THE LAW ON PERSONS

CHILDREN AND MARRIAGE

● The unborn child, from conception, is considered to have a presumptive status distinct from the
mother.
● Children born in wedlock are under paternal control.
● Emancipation liberates children from their parents.
● Wedlock or matrimony is the union of male and female, involving the habitual intercourse of
daily life
● The age of puberty must be reached to get married. If the children are still dependent, then the
consent of parents who exercise parental power must first be obtained.
● Marriage between certain classes of persons is forbidden, such as between an ascendant and a
descendant, including father and daughter, grandfather and granddaughter, mother and son,
grandmother and grandson, and ad infinitum.

GUARDIANSHIP
● Guardianship is the authority and control over a free person. The law allows a parent to appoint
guardians in his will for children who have not attained the age of puberty.
● A guardian may be appointed for a certain time, or conditionally.
● A guardian cannot, however, be appointed for a
particular matter or business, because of his duties relating to the person.
● No minor of either sex can sell anything without his or her guardian’s authority.

THE LAW ON PROPERTY KINDS OF OWNERSHIP

1. private ownership, acquired by various titles
2. public ownership, which is for common use,

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3. corporate ownership, belonging to a society or a corporation;

4. res nullius, belonging to no one

THE OWNERSHIP OF ANIMALS

● Wild animals, birds, fish, and all creatures in the land, the sea, and the sky become the property
of their captors as soon as they are caught; for natural reasons entitles the first occupant to that which
previously had no owner.

● But as soon as it has escaped from his control and recovered its natural liberty, the animal
ceases to be owned and will belong to the first person who subsequently catches it.

RIGHT OF ACCESSION
● If the soil in a river has been added to one’s land by alluvion, it is considered appropriate.
Alluvion is a gradual and imperceptible accumulation of soil.
● When an island rises in the sea, it belongs to the first occupant; for, until occupied, it is held to
belong to no one.
● If a river divides into two channels, and by uniting again these channels transform a man’s land
into an island, the ownership of that land is in no way altered.
● A new object belongs to the owner of the materials or its maker.
● If materials belonging to two persons are mixed by consent — for instance, if they mix their
wines, or melt together their gold or silver — the result of the mixture belongs to them in common.
● If a man builds on his land using another’s materials, then the building is deemed to be the
landowner’s property, for buildings become part of the ground on which they stand.
● A writing becomes part of the paper or parchment, much as buildings and sown crops become
part of the soil.
● If a man finds a treasure in his land, he is adjudged to be the owner of it.
● If he finds it in another man’s land by accident, and without deliberately searching for it, half of
the treasure must be given to him as the finder. If a man finds a treasure in public land, then half of it
belongs to him and the other half to the treasury of the State.

LAND TITLE

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● When a thing is sold and delivered, it does not become the purchaser’s property until he has
paid the price to the vendor, or satisfied him in some other way, such as by securing someone else to
accept liability for him, or by pledge

USUFRUCTUARY
● Usufruct is the right to use and take the fruits of another’s property. It is extinguished along
with the extinction of that property. Usufruct also ceases by the death of the usufructuary, by loss of
status, by improper use, and by non-exercise during the period fixed by law

● The term “fruits,” when used in animals, includes their young.

SERVITUDES
• The following are rights relative to “country estates”: iter, the right of
passage for passerby; actus, the right of driving beasts or vehicles; via, the right
of going, walking, and driving anything; and aqueducts, the right of conducting
water over another man’s land.

• Servitudes relative to “town estates” are rights that are attached to

buildings such as the obligation to support the weight of a neighbor’s house; to
allow beams into one’s wall; to receive the rain from a neighbor’s roof from a
gutter into his yard; the converse right of exemption from any of these
obligations; and the right of preventing a neighbor from raising his building lest
one’s view of lights be obstructed

OCCUPATION AND POSSESSION

• If a man takes possession of a property abandoned by its previous owner,
he at once becomes the new owner. A thing is said to be abandoned if its owner
has thrown it away with deliberate intent

DONATION
Another mode of acquiring property is through gifts. Gifts are of two kinds; (1)
those made in contemplation of death, and (2) those not so made. In the first, if

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the donor survives the donee, or should desire to revoke the gift, the gift should
be restored to the donor. A donor can revoke a gift on proof of ingratitude on the
part of the recipient. If the gift was in consideration of marriage, the gift can be
revoked if the marriage did not push through.

WILLS AND SUCCESSION

• The law of testament must fulfill the following conditions:
1. the witnesses, and the necessity of their all being present through the
execution of the will;
2. the signing of the document by the testator and the witnesses; the exact
number of witnesses;
3. the sealing of the will by them;
4. the name of the heir written by either the testator or the witnesses; and
5. that everything should be done according to the tenor of this enactment

• Heirs: (1) children, (2) the person whom the testator has
never seen; (3) substitutes

OBLIGATIONS AND CONTRACTS

An obligation is a legal bond, with which we are bound to perform an act. It has
four kinds:
1. contractual,
2. quasi-contractual,
3. delictal, and
4. quasi-delictal

SPECIAL CONTRACTS SALES

• The contract of purchase and sale is complete when the price is agreed
upon, and even before the price or any earnest is paid. Earnest money is evidence
of the completion of the contract.

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LOAN, MUTUUM, DEPOSIT, AND PLEDGE

• Real contracts, or contracts concluded by delivery, are exemplified by a
loan for consumption — a loan of things as are estimated by weight, number, or
measure, such as wine, oil, corn, money in coins, copper, silver, or gold.

• Things which we transfer on the condition that the receiver should bring
back, at a future time, not the same things, but other things of the same kind and
quality is called mutuum because what was meum or mine becomes tuum or
thine. If the receiver of a loan for consumption loses what he has received by
some accident, such as fire, the fall of a building, shipwreck, or the attack of
thieves or enemies, he remains bound to give the thing of the same kind and
quality.

• A thing is not lent for use if any recompense is received or agreed upon for
the service; for where this is the case, the use of the thing is held to be a rent, for
a loan for use should always be free.

• A person with whom a thing is deposited for custody is responsible for the
restoration of the identical thing deposited, though only when it is lost through his
fault. Similarly, the creditor who takes a thing in pledge is under a real obligation
and is bound to restore the thing itself by the action of pledge.

PARTNERSHIP AND AGENCY

• The continuance of a partnership depends on the continuing consent of the
members. It is dissolved by notice of withdrawal from any one of them. It is also
dissolved by the death of a partner, for when a man enters into a contract of
partnership, he selects as his partner a definite person.
• The authority given to an agent can be annulled by revocation before he
commences to act. Similarly, the death of either the principal or the agent before
the latter commences to act extinguishes the agent’s authority.

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QUASI-CONTRACTS
• Obligations that do not originate in a contract and do not arise from a delict
are quasicontractual, such as when a man has managed the business of another
during the latter’s absence. The reason is general convenience lest, during the
business owner’s absence, those affairs would be entirely neglected. No one would
attend to the business of another if one were to have no action for the recovery of
any outlay he might have incurred in so doing.

DELICTS AND QUASI-DELICTS

• Obligations resulting from a delict itself include theft, robbery, wrongful
damage, or injury.

ACTIONS AND INTERDICTS

• An action is the right to sue before a judge

for what is due. It is of two kinds:
1. REAL
a. if the plaintiff asserts a ground of action relating to a thing
2. PERSONAL
- if the defendant is either under a contractual or delictual obligation to the
plaintiff

• Interdicts are divided into

1. Abstention
- forbids the doing of some act — for instance, the violent ejection of a bona
fide possessor

2. Restitution
- refers to the restitution of property

3. Production

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- refers to orders to produce persons or property; for instance, the

production of a person whose freedom is in question, or of a freeman
whose patron wishes to demand certain services, or of children on the
petition of their parents

LATIN MAXIMS

1987 PHILIPPINE CONSTITUTION

1. Accusare nemo se debet, nisi caram Deo. (No one is compelled to accuse
himself, except before God.)
2. Audi alteram partem. (Hear the other side.)
3. Domus sua cuique est tutissimun refugium. (To everyone,
his house is his surest refuge.)
4. Non bis in idem. (No one shall be punished for the same offense.)

NEW CIVIL CODE

1. Accessorium sequitur naturam sui principalis. (The accessory
follows the nature of its principal.)
2. Aedificium solo credit. (The building yields to the land.)
3. Boni judicis est lites dirimere.(It is the duty of good justice to prevent
litigation.)
4. Caveat emptor. (Buyer beware.)
5. Ex pacto illicito non oritur action. (No action arises out of the illicit bargain.)
6. Facta legem facunt inter partes. (Stipulationshave the force of law
between parties.)
7. Finita voluntate, finitum est mandatum. (Upon the termination of the will,
the agency is terminated.)
8. Genus nunquam peruit. (Generic things do not perish.)
9. Homo est et qui est futurus. (He is already a man who will become a man.)
10. Ignorantia legis neminem excusat. (Ignorance of the law does not excuse.)

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REVISED PENAL CODE

1. Actus non facit reum nisi mens sit rea. (The act does not make a person
guilty unless the mind is also guilty.)
2. Arma in armatos jura sinunt. (The law permits taking arms against armed
persons.)
3. Favorabilia sunt amplianda, odiosa restringenda. (Penal laws which are
favorable to the accused are given retroactive effect.)
4. Furiosus solo furore punitur. (A madman is punished only by his madness.)
5. Actus invitus, non est meus actus.
(An involuntary act is not one’s act.)
6. Nullum crimen, nulla poena sine lege. (There is no crime where there is no
law punishing it.)
7. Sociis fit culpae qui nocentum sublevat. (He who helps the guilty shares the
crime.)

1997 RULES OF CIVIL PROCEDURE

1. Cujus juris erit accessorium. (He who has jurisdiction of the principal thing
has jurisdiction of the accessory also.)
2. Res judicata inter partes jus facit. (A question adjudicated between parties
after hearing them makes the law of that question.)
3. Stare decisis et non quieta movere. (Follow past precedents and do not
disturb what has been settled.)
4. De similibus idem est judicium. (Concerning similars, the judgment is the
same.)

REVISED RULES OF EVIDENCE

1. Ei incumbit probation qui dicit, non qui negat. (He who asserts, not he who
denies, must prove.)
2. Non allegata non probate. (That which is not alleged cannot be proved.)
3. Qui tace consentire videtur. (Silence means consent.)
4. Res ipsa loquitur. (The thing speaks for itself.)
5. Semper praesumitur pro matrimonio. (Always presume marriage.)

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6. Ut res magis valeat quam pereat. (The law should be interpreted to uphold
rather than to destroy it.)

LEGAL ETHICS

1. Judex non potest injuriam sibi datam punier. (A judge cannot punish an injury
to himself.)

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