introdcution to law

7/28/2019 Introdcution to Law

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INTRODUCTION TO LAW

Ramil F. De Jesus

Introduction

In its widest and most comprehensive sense, the term law means any rule

of action or any system of uniformity. Thus, law in general, determines not only

the activities of men as rational beings but also the movements or motions of all

objects of creation, whether animate or inanimate.1

It includes all laws, whether

they refer to state law, physical law, divine law and others.

In strict legal sense, law is defined as a rule of conduct, just and

obligatory, laid down by legitimate authority for the common observance and

benefits.2

Objectives

1. To provide an overview of the general division of law;

2. To enumerate and discuss different law in each division;

3. To enumerate the characteristics of law; and

4. To discuss the necessity of law.

Discussions

There are two major divisions or group of law. Those laws which are

promulgated by the State and its subdivisions called jural laws and those which

are not promulgated by the State or the non-jural laws. The strict definition of law

refers to the jural laws.

Non-Jural Laws

Eternal or Divine Law is the wisdom of Gods reason as it directs and

commands every action and movement. In general sense, is the entire system of

perfection which God, in his infinite wisdom, has imprinted in the whole of nature

1De Leon, Hector S., The Law on Obligations and Contracts. 2008

2Suarez, Rolando A. Introduction to Law. 1995 citing Sanchez Roman.


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to govern its operations and all that there is in it. In its strict sense, is the law of

the religious faith which concerns itself with the concept of sin and salvation, of

life and death, of the temporal and the eternal. It is formally promulgated by God

and revealed through the various means of divine revelations, such as vision,

mystic dreams or deep religious experience.3

Different religions have their own divine law embodied in their own

religious or holy book or testament. The Christians have the Ten

Commandments in the Holy Bible. Hindus have the Vedas in the four book of

knowledge. The Buddhist have the Scriptures in the Three Baskets of Wisdom.

The divine law of the Mohammedans is contained in the Quoran.

Natural Lawmay be then defined as the divine inspiration in mans sense

of justice and fairness, and righteousness, not by divine revelation or formal

promulgation, but by internal dictates of reason alone. (De Leon, Hector S., The

Law on Obligations and Contracts. 2008).

Divine law and Natural law is not the same in the sense that Divine Law is

promulgated through revelations while Natural Law is not promulgated but is a

product of internal dictates of reason.

Moral Law is the system or totality of desirable experience of the people

in moral responsibility borne of the collective consciousness of public sense of

roght or wrong for the control and supervision of the activities and manners of the

people in respect of one another. (Escoses, Adelardo . Lecture Notes on

Philosophy of Law. 2012).

The laymans definition of what is moral pertains to excellence of

character or disposition. It relates to the distinction between right and wrong;

virtue and vice; ethical praise or blame. Moral law refers to the body of

requirements in conformity to which virtuous action consists. Applied to persons,

3Escoses, Adelardo . Lecture Notes on Philosophy of Law. 2012


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it is conformity to the rules of morality, being virtuous with regards to moral

conduct.( OxfordUniversal Dictionary, Vol. 2, p. 1280 as cited in .M. No. P-02-

1651, dissenting opinion of J. Ynares-Santiago)

When we talk of moral law, we are speaking of the totality of the norms of

good and right conduct growing out of collective sense of right and wrong of

every community. At a very comparatively early stage of their existence human

beings learned it was good for the welfare of the group that the privilege to

determine what is right and what is wrong was not left to each member of the

group. The mores or ways of life were then evolved which were always

considered right and correct, and obedience to them was demanded by the

group. As distinguished from state law, there is no definite sanctions(punishment

imposed by laws like imprisonment and /or payment of fines or damages) for

violation of purely moral law. If a member of the community disregards the moral

norms, a spontaneous social rection is produced in the form of public

displeasure, contempt or even indignation. If on the otherhand, there is

conformity to the moral norms, there is created spontaneous social response

which may be on the form of public pleasure , approval or even joy. (C. Pascual,

The Nature and Element of Law, 1954, as quoted by De Leon).

Physical Laws are the physical behaviors and phenomena that human

beings and dumb creatures sense and feel. They are imperative because they

are fixed and unbreakable. They are regular because there is no break in their

sequence or constancy once they are set into motion. The norms of physical law

are the generalized propositions or statements of observed phenomena

concerning order and regularity in the happening of certain events. Since

physical lawis imperative and regular, the norms of physical law can be reduced

and worked out in a mathematical formula.

Jural Laws


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Jural laws are those promulgated by the state and its political subdivision.

It is sometimes called state law, positive law. It is the entire body of law duly

promulgated and non-observance will usually result to sanctions provided for in

its enactment.

The fields of state law are different from those of divine law, natural law

and moral law. State law does not concern itself with the violations of the latter

rules of action unless they also constitute violations of its command. A full

examination of divine law properly belongs to the field of philosophical theology;

of natural law to metaphysics; of moral law to ethics; and of physical law to

physical science or physics.(M.J. Gamboa as cited by De Leon).

Jural laws in its particular or specific sense refers to statute which is a

written enactment of the legislature of a State composed of definite provisions for

definite situations or state of facts to which certain definite incentives and/or

sanctions are attached as a means of enforcement. In its loose term, it refers to

any rule, or regulation, or opinion duly formulated or adapted by responsible

persons learned in law, an authorized official, or any agency of the State. In its,

collective or aggregate sense, it refers to the gross or bulk of specific or particular

laws relating to one subject or coming from a determinate source or origin.

(Escoses, Adelardo . Lecture Notes on Philosophy of Law. 2012)

Characteristics of Law (Jural law)

The characteristics of law (in its specific sense) are:

a. It is a rule of conduct. Law tells us what shall be done and what shall not

be done. As a rule of human conduct, law take cognizance of external acts

only;

b. It is obligatory. Law is considered a positive command imposing a duty to

obey and involving sanction which forse obedience;


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c. It is promulgated by legitimate authority. In a democratic country, like the

Philippines, the legitimate or competent authority isn the legislkature.

Under the Constitution, laws called statutes are enacted by Congress

which is the name of the legislative branch of our government; local

government units are also empowered to enact ordinances which have

binding force of laws; and

d. It is of common observance and benefit. Law is intended by man to serve

man. It regulates the relations of men to maintain harmony in society and

to make order and co-existence possible. Law must, therefore, be

observed by all for the benefit of all.( De Leon, Hector S., The Law on

Obligations and Contracts. 2008)

Laws must have the four characteristics in order to effective. Absence of

one characteristic may be a ground for non-observance. It will no longer be a

positive law if it fails to meet the four characteristics mentioned above.

Sources of Law

The following are the sources of law:

a. Constitution. It is the fundamental law of the land. The supreme and

highest law, all other law or regulations must not contravene the

provisions of the Constitution. Any laws that violate the provisions of the

Constitution may be declared invalid in appropriate proceedings.

b. Legislation. Statutes enacted by the legislative authority of the State. The

legislative power is vested in the Congress of the Philippines (the House

of Representatives and the Senate). But during the early years of martial

law, the old Congress was dissolved and legislative power was vested to

the President of the Philippines. This is why we have the Presidential

Decrees enacted by the President of the Philippines. When the Batasang

Pambansa was organized, legislative power was restored to the


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legislature but the President retains his power to issues decrees in the

exigency of the situations and or emergencies. Today, legislative power is

back in the hands of the Congress of the Philippines as prescribed by the

Constitution.

c. Administrative or executive orders, regulations, and rulings. They are

those issued by administrative officials under legislative authority or by

administrative agencies clothed with quasi-legislative functions.

Administrative rules and regulations are intended to clarify or explain the

law and carry into effects its provisions. Administrative acts are valid only

when they are not contrary to laws and Constitution.( Art. 7, Civil Code as

cited by De Leon).

When an administrative agency promulgates rules and regulations, it

makes a new law with the force and effect of a valid law. Rules and

regulations when promulgated in pursuance of the procedure or authority

conferred upon the administrative agency by law, partake of the nature of

a statute. This is so because statutes are usually couched in general

terms, after expressing the policy, purposes, objectives, remedies and

sanctions intended by the legislature. The details and the manner of

carrying out the law are often times left to the administrative agency

entrusted with its enforcement. In this sense, it has been said that rules

and regulations are the product of a delegated power to create new or

additional legal provisions that have the effect of law.(ictorias Milling Co.,

Inc. vs. Social Security Commission, 114 Phil. 555 (1962), as cited in

Freedom from Debt Coalition v. Energy Regulatory Commission, G.R. No.

161113, 15 June 2004)

d. Jurisprudence. This means that decisions or principles enunciated by a

competent Court , particularly the Supreme Court on a question of law

serves as guide to be followed by inferior courts on cases with the same

issues. Judicial decisions applying or interpreting the laws or the


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Constitution shall form part of the legal system(Art.8, Civil Code). Although

jurisprudence is in strict sense not law, it is deemed part of the legal

system and will have a force in the interpretation of the law. This is the

principle of Stare Decisis, which is observed and adhered to by the

Philippine legal system.

Jurisprudence, in our system of government, cannot be considered as an

independent source of law; it cannot create law. While it is true that judicial

decisions which apply or interpret the Constitution or the laws are part of

the legal system of the Philippines, still they are not laws. Judicial decisions,

though not laws, are nonetheless evidence of what the laws mean, and it is

for this reason that they are part of the legal system of the Philippines.

Judicial decisions of the Supreme Court assume the same authority as the

statute itself.(Columbia Pictures, et al. vs. Court of Appeals, et al., G.R. No.

110318, August 28, 1996).

This doctrine of adherence to precedents or stare decisis was applied by

the English courts and was later adopted by the United States. Associate

Justice (now Chief Justice) Reynato S. Punos discussion on the historical

development of this legal principle in his dissenting opinion in Lambino v.

Commission on Elections(G. R. No. 174153, October 25, 2006 as cited in

Ting v. Ting, G.R. No. 166562) is enlightening:

The latin phrase stare decisis et non quieta movere meansstand by the thing and do not disturb the calm. Thedoctrine started with the English Courts. Blackstoneobserved that at the beginning of the 18th century, it is anestablished rule to abide by former precedents where thesame points come again in litigation. As the rule evolved,early limits to its application were recognized: (1) it wouldnot be followed if it were plainly unreasonable; (2) where

courts of equal authority developed conflicting decisions;and, (3) the binding force of the decision was the actualprinciple or principles necessary for the decision; not thewords or reasoning used to reach the decision.

The doctrine migrated to the United States. It wasrecognized by the framers of the U.S. Constitution.

According to Hamilton, strict rules and precedents are


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necessary to prevent arbitrary discretion in the courts.Madison agreed but stressed that x x x once theprecedent ventures into the realm of altering or repealingthe law, it should be rejected. Prof. Consovoy well notedthat Hamilton and Madison disagree about thecountervailing policy considerations that would allow a

judge to abandon a precedent. He added that their ideasreveal a deep internal conflict between the concretenessrequired by the rule of law and the flexibility demanded inerror correction. It is this internal conflict that the SupremeCourt has attempted to deal with forover two centuries.

Indeed, two centuries of American case law will confirmProf. Consovoy's observation although stare decisisdeveloped its own life in the United States. Two strains ofstare decisis have been isolated by legal scholars. Thefirst, known as vertical stare decisis deals with the duty oflower courts to apply the decisions of the higher courts to

cases involving the same facts. The second, known ashorizontal stare decisis requires that high courts mustfollow its own precedents. Prof. Consovoy correctlyobserves that vertical stare decisis has been viewed as anobligation, while horizontal stare decisis, has been viewedas a policy, imposing choice but not a command. Indeed,stare decisis is not one of the precepts set in stone in ourConstitution.

It is also instructive to distinguish the two kinds ofhorizontal stare decisis constitutional stare decisis andstatutory stare decisis. Constitutional stare decisis involves

judicial interpretations of the Constitution while statutorystare decisis involves interpretations of statutes. Thedistinction is important for courts enjoy more flexibility inrefusing to apply stare decisis in constitutional litigations.Justice Brandeis' view on the binding effect of the doctrinein constitutional litigations still holds sway today. Insoothing prose, Brandeis stated: Stare decisis is not . . . auniversal and inexorable command. The rule of staredecisis is not inflexible. Whether it shall be followed ordeparted from, is a question entirely within the discretion ofthe court, which is again called upon to consider aquestion once decided. In the same vein, the venerable

Justice Frankfurter opined: the ultimate touchstone ofconstitutionality is the Constitution itself and not what wehave said about it. In contrast, the application of staredecisis on judicial interpretation of statutes is moreinflexible. As Justice Stevens explains: after a statute hasbeen construed, either by this Court or by a consistentcourse of decision by other federal judges and agencies, itacquires a meaning that should be as clear as if the

judicial gloss had been drafted by the Congress itself. Thisstance reflects both respect for Congress' role and theneed to preserve the courts' limited resources.

In general, courts follow the stare decisis rule for anensemble of reasons, viz.: (1) it legitimizes judicialinstitutions; (2) it promotes judicial economy; and, (3) itallows for predictability. Contrariwise, courts refuse to bebound by the stare decisis rule where (1) its applicationperpetuates illegitimate and unconstitutional holdings; (2) itcannot accommodate changing social and politicalunderstandings; (3) it leaves the power to overturn bad


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constitutional law solely in the hands of Congress; and, (4)activist judges can dictate the policy for future courts while

judges that respect stare decisis are stuck agreeing withthem.

In its 200-year history, the U.S. Supreme Court has

refused to follow the stare decisis rule and reversed itsdecisions in 192 cases. The most famous of thesereversals is Brown v. Board of Education which junkedPlessy v. Ferguson's separate but equal doctrine. Plessyupheld as constitutional a state law requirement that racesbe segregated on public transportation. In Brown, the U.S.Supreme Court, unanimously held that separate . . . isinherently unequal. Thus, by freeing itself from theshackles of stare decisis, the U.S. Supreme Court freedthe colored Americans from the chains of inequality. In thePhilippine setting, this Court has likewise refused to bestraitjacketed by the stare decisis rule in order to promote

public welfare. In La Bugal-B'laan Tribal Association, Inc.v. Ramos, we reversed our original ruling that certainprovisions of the Mining Law are unconstitutional. Similarly,in Secretary of Justice v. Lantion, we overturned our firstruling and held, on motion for reconsideration, that aprivate respondent is bereft of the right to notice andhearing during the evaluation stage of the extraditionprocess.

An examination of decisions on stare decisis in majorcountries will show that courts are agreed on the factorsthat should be considered before overturning prior rulings.

These are workability, reliance, intervening developmentsin the law and changes in fact. In addition, courts put in thebalance the following determinants: closeness of thevoting, age of the prior decision and its merits.

The leading case in deciding whether a court should followthe stare decisis rule in constitutional litigations is PlannedParenthood v. Casey. It established a 4-pronged test. Thecourt should (1) determine whether the rule has proved tobe intolerable simply in defying practical workability; (2)consider whether the rule is subject to a kind of reliancethat would lend a special hardship to the consequences of

overruling and add inequity to the cost of repudiation; (3)determine whether related principles of law have so fardeveloped as to have the old rule no more than a remnantof an abandoned doctrine; and, (4) find out whether factshave so changed or come to be seen differently, as tohave robbed the old rule of significant application or

justification

e. Custom. Custom have the force of law when they are acknowledged and

approved by society through long and uninterrupted usage. In the

Philippines, there are several requisites before the court considers

custom.


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Custom is defined as "a rule of conduct formed by repetition of acts,

uniformly observed (practiced) as a social rule, legally binding and

obligatory" [In the Matter of the Petition for Authority to Continue Use of

the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30,

1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law,

Fourth Ed., Vol. 1, p. 7.] The law requires that "a custom must be proved

as a fact, according to the rules of evidence" [Article 12, Civil Code.] On

this score the Court had occasion to state that "a local custom as a source

of right can not be considered by a court of justice unless such custom is

properly established by competent evidence like any other fact" [Patriarca

v. Orate, 7 Phil. 390, 395 (1907).] (cited in Yao Kee v. Sy-Gonzales et

al.,1988).

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