Legal Method Notes

2nd Sem SY2009-2010 INTRODUCTION

OBJECTIVE: To acquire skills

MODES OF LEGAL REASONING logic

o analogyo syllogism o most common form

history sociology

o adapt the law to political, economic and social events that shape the law

o socialization of the law is adapting the law to social conditions of the period

e.g. concept of equality in modern times: contracting parties (big corp v recently laid off worker)

authority – stare decisis/precedent ethical – e.g. Party List Ladlad was

not allowed by COMELEC because of immorality

prudential considerations force – if all reasoning fails use force

e.g. US v Afghanistan

UNARTICULATED FACTORS THAT GO INTO DECISIONS

human jurisprudence Woodward and Armstrong

ESTRADA RUNNING FOR PRES. The President shall not be eligible

for any re-election Basis:

o Logic President refers to the

sitting president THE refers to a

particular person

o Intent is to prevent the President to utilize government fund for election

Grading System1/3 – recitation1/3 – mid-term1/3 – finals

The Comparative Study of the Judicial Role and Its Effect on the Theory on Judicial Precedents in the Philippine

Hybrid Legal SystemCesar Lapuz Villanueva

Analysis of the Theory Under Art 6. Of Spanish Code: No

written law => customs of the place and general principles of law

Judicial decisions cannot be resorted to since lower court may disregard the decisions of the higher court

Successive order according to Manresa:o Written lawo Customs of the placeo Judicial decisionso General principles of law

In reality, general principles are resorted to prior to judicial decisions

Art 8 of the NCC: judicial decisions on interpretation of laws/constitution shall form part of the legal system of the Phils.

Judicial decisions are not independent sources of law in the sense of creating new law – merely filling the gaps, clarifying ambiguities and harmonizing apparent inconsistencies in law

Double function of courts (free scientific research):o Fill deficiencies of legislation

SPROMA (01-12999) UPLUPLAW AW LLEGALEGAL M METHODETHOD| 1

2nd Sem SY2009-2010 EFFECTS OF JUDICIAL ROLE IN THE PHILS.

o Adapt and adjust rigid and inflexible provision of law, rendered inadequate by time and circumstances, to the changing conditions of life and society.

Draft of NCC which was not included in actual law: when there is no law applicable to point at issue o the general or local customs o judge shall apply rule which he

believes the lawmaking body would lay down – guided by the general principles of law and justice

o analogous lawso foreign legislation and decisionso opinions of juristso legal maxims

Tolentino: use positive law, customs, jurisprudence, jurisconsults and commentators

Art 9: No judge/court shall decline to render judgment by reason of silence, obscurity or insufficiency of the laws

Characteristics of Theory Irony: Judicial decisions are submitted to

be sources of law but do not constitute law

Hierarchical Application o Decisions of SC are binding laws,

while CA decisions on issues not covered by the SC serve merely as a judicial guide.

o Decisions of other hand are not considered binding at all

o Lower court should be allowed to depart from decisions of superior tribunals as a direct way of provoking reexamination of an important legal question

o Ratio:

Assure stability in legal relations and avoid confusion, it has to speak with one voice with finality, logically and rightly through the highest tribunal.

Has to be definitive and authoritative.

To do otherwise could result to inconsistency in rulings in the lower courts

There has never been a consistent reporter system of CA, other special courts nor CFI decisions

Hierarchical application provides a testing ground for legal issues to be clarified to lay down solid judicial background for an SC review

o Grounds for review by the SC of CA decisions CA decided a question of

substance not determined by SC or probably not in accord with law or decisions of SC

CA departed from accepted and usual course of judicial proceedings

Modal Scope o

Doctrinal Form

Civil Law v Common Law Civil Law

o Abstract in the sense that it starts from

the generalization and apply it to a particular example e.g. contract

Implication: Deductive logic e.g. All men are mortal.

Socrates is a men. => Socrates is mortal.


2nd Sem SY2009-2010 EFFECTS OF JUDICIAL ROLE IN THE PHILS.

o Systematic growtho Precedents – treated as evidenceo Codification – doctrinal approach

based on legislation e.g. administrative code, penal

code, commercial codeo role of the judge – apply existing law

on the facts of the case; mechanical Common Law

o Concrete – it is a case to case basiso Implication: uses inductive method


2nd Sem SY2009-2010 I. PHILIPPINE LEGAL SYSTEM (IN RE SHOOP)

e.g.: Deductive logico growth is haphazardo stare decisis – treated as source of

lawo codes – accumulation of general

principles derived from decided cases or restatement of accumulated decisions since the growth is in a cases to

cases basis, sometime cases are decided differently which could result to confusion

o role of the judge - creative filling gaps of the law adapt and adjust rigid and

inflexible provision of law has more discretion

Hybrid or Mestizo cultureo 350 yrs under the Vatican and 50 yrs

under Hollywoodo We were able to inherit the strengths of

the two systems – very good technique in legal argumentation

Precedents and Stare decisis Socioeconomic developments may

compel courts to revise a precedence Jurisprudentia v stare decisis

o Spanish v Americano Stare decisis in Phils. applies only in

SC while in US stare decisis applies to any type of court

Administrative Agency A development which erode the concept

of stare decisis Developed due to socioeconomic

changes in the Phils. Way to become a welfare state

Factors that led to Common Law adoption – action taken by American Colonialist Adoption of the American Court System Transplant of Anglo-American principles

in the Phil. Legal System Education – UP use Case Method USSC able to reverse Phil Court

decisions Criminal code patterned after Ohio

criminal procedures – thus common law in nature

Code system, practice, education based on common law system

Use of American Court decisions as basis for Phil. Cases – use of wording and logic

Importation of law in commercial law – corporation, maritime shipping, sales -, administrative law – public officers, local government -, remedial law – criminal and civil -, political law, special laws – food and drug administration

Number of justices at the beginning

IN RE SHOOPPublic Law – changed by conquerors since dealing with the public and are not concerned with private relations. The Americans changed the public laws of the Phils. except the penal laws

1. Constitution2. Administrative3. Public Affairs4. Election5. Procedure

Private Law – deals with relations of private individuals; not usually changed by conquerors

1. Family2. Commercial – changed by the

Americans because their intention is


2nd Sem SY2009-2010 I. PHILIPPINE LEGAL SYSTEM (IN RE SHOOP)

to expand their economy and to do business in the Philippinesa. Law on sales – main business

being brought to the Phils. are those who wants to sell their products in the country


2nd Sem SY2009-2010 II. LAW AS PROCESS (ROE V WADE)

b. Corporation law – big corporations in the US were the ones who would like to do business in the Phils.

c. Mortgage Lawd. Negotiable Instruments – intend

to use checking acct for business transactions

e. Law on Insolvency – to ensure that when their business segments in the country went bankrupt they would have remedies

f. Law on Trade/financing – at that time the Americans have emerged in the power of trading and movement of capital so they have to introduce this modern law. Unlike Spain, which is a in the back of the economy, they need not update their laws

3. Property4. Succession

Effects of having a hybrid Law System- hybrid of common law (case law) and civil law (legislation)

1. American System of Legislation2. Import American Judges3. Judicial legislation

Difference between Civil Law and Phil Common law

1. Role of judges – powerful since decides on questions of facts and laws unlike in a jury system where the jury is the one who decides on questions of facts

2. Stare decisisa. How perceived by Malcolm in

In re Shoop

b. What is the difference between stare decisis in our Phil law system, civil law system and American common law system

i. American are more flexible since even lower court decisions are considered as stare decisis while in the Phils. only the decisions of the Supreme Court are considered as precedents

ii. Under Art 8 of the civil code3. Deductive or inductive reasoning4. Codification

THE BRETHREN1. Approaches used to justify allowing abortion

a. HistoricalHistory is discussed because they learned that historically prohibition for abortion is not absolute because it had been commonly accepted for thousands of years prior to the 19th century. Prohibition of abortion is not absolute in all times and in all lands

b. Use of scientific data – concluded that abortion may be allowed: to be decided by the doctora. danger of abortion – antiseptics

and antibiotics made it relatively safe, especially in early stages of pregnancy

b. Viability of fetus – trimester system

c. Balancing of interestsa. Personal autonomyb. Potential life

d. Textual a. ‘person’ as used in the

constitution always refers to post



natal baby rather than a pre-natal fetus

b. ‘liberty’ includes the freedom of the woman over her own body

c. ‘privacy’d. Stare decisis

i. Grsiwold v Connecticut - birth control



2. Underlying reason for the decision by choice of Blackmun decisiona. Experience in medical professionb. Scientific data used in deciding of

the casei. Viability of the fetus at 3months?

which reduce the personal autonomy of the mother thus the state would have the choice on whether or not it should step in to protect its interest on the potential life

Note:Compare with the rule in the Philippines on abortion abortion is a crime whatever the reason

of the mother life is protected by the state

ROE V WADE Balancing of interests

o Personal autonomy – rights/freedom of mother to decide for her body

o General welfare Compelling state interest pertains to the potential life since

if the child is born, he/she will be a citizen of the state and thus could become for example a military personnel

Morality since it could encourage illicit affairs

o Compromise made is that abortion will be allowed only until the 2nd trimester or the 6th month because it is until this time

Interpretive method v Non-interpretive method (schools of taught)o Interpretive

Interpretation could be made based on the period, economic, social, etc.

o Non-Interpretive Interpretation strictly based on

the wording of the law o Person – used in the constitution

refers to post-natal personso Liberty – persons power over own

bodyo Due process

Procedural – steps in judiciary taken before a person is deprived of life, liberty or property

Substantive reasonableness of a law or the

ruling laid by the government; law to make the qualification of due process must be reasonable fair and not oppressive

refers to natural law/right of the person as perceived by the justices

Textual v analogy (methods)o Analogy mean the doctrine of stare

decisiso Not appropriate because in

contraception there is no yet a fertilization but in abortion there is already a life

o Textual want to take the word of the constitution literally does they belong to the non-interpretive schools of taught

Historical v textual

ON ANALOGICAL REASONING Example of analogical reasoning

o Camry Car1 and 2 starts even during cold weather. Therefore, Camry cars starts-up even in cold weather (inductive logic)



Deficient since relevant similarities and differences need to be identified

o Men are mortal. Socrates is a man. Therefore men are mortal. (deductive logic)

Characteristics of analogical reasoningo Principled consistencyo Focus on particularso Incompletely theorized judgments o Principles operating at a low or

intermediate level of abstraction


2nd Sem SY2009-2010 III: LAW AND LOGIC

Types of reasoningo Top-down – deductive reasoningo Reflective Equilibrium – balancing of

interesto Reasoning by Analogy – Incompletely

Theorized Practiceso Classification

Example on appointive and elective case

Violation of equal protection law since they belong to the same classification

According to the minority there is a substantive difference between the appointive and elective officials does should matter

o Means-Ends Rationality

RAV v ST. PAUL Burning of cross v Burning of flag

o Similarities Crimes involving actions could be

prosecuted Assault or incite violence Symbols of expression –

guaranteed by protection of 1st Amendment

o Analogy not appropriate Protected

Actions which have for its contents neutral regulations – regulation as to time, manner or place of expression – protected does cannot be covered by freedom of speech law

if not content-neutral, like symbolic, it is unprotected by the 1st Amendment

o burning of the flag ordinance not content-neutral because it refers to race, color, creed, religion or gender

and therefore protected by the 1st amendment

OBJECTIONS TO ANALOGICAL REASONING Absence of scientific, External or Critical

Perspectiveo Insufficiently scientific, unduly tied to

current intuitions, static or celebratory of existing social practice

o Have backward-looking,, conservative incremental working

o Takes current legal materials as basis for reasoning, thus an obstacle to justified change through law

o Efforts to reason from analogies are stuck in existing convictions

o Sometimes analogies reveal mistakes – reference to past cases show initial judgments are inconsistent with what we actually think

Indeterminacy; Dependence on Consensuso Indeterminate in the absence of

social consensus or a degree of homogeneity

o Objections poses problem to analogies since it lowers the degree of consensus

o Need for a degree of consensus is a problem for all form of reasoning

o Analogies in law is more constrained – those who made objections respect the decision of the majority and stare decisis or fixed points

o Differences could be reconciled by determining the similar traits in the different views raised

Search for Relevant Difference



o Inevitable need for criteria never supplied by analogical reasoning

o Everything are a little bit different and similar

o Decided cases should be prioritized when deciding successive once

o General theories may sometimes be too rigid to account for the diversity and plurality of relevant goods or no general theory could adequately account for particular convictions

o Sometimes there may be no criteria for truth in law except for our considered judgments about particular cases

ALTERNATIVE ACCOUNTS AND COMPARATIVE ADVANTAGES OF

ANALOGICAL THINKING Search for reflective equilibrium

o Inevitable need for criteria never supplied by analogical reasoning

Hercules, Harlan and Integrityo Law is a system of rules proceeding

from authoritative sourceso Hercules places large emphasis on fito Both Hercules and analogy are

concerned to develop principles that organize cases but in Hercules theories are produced largely on the basis of abstract moral theory – it is too deeply theorized

General theories and economic analysis of law

RATIO DECIDENDI Facts Issues Reasoning – obiter dictum Conclusion - ratio

Case:

Ratio: An extraditee, in a case that is not a capital offense & where the evidence of guilt is not strong, should not be denied the right to apply for bail provided that he is not a flight risk.

Only the ratio decidendi becomes the precedent and not the obiter dicta

To determine ratio decidendi:facts + outcome = precedent

Cardozo, supra (Lecture IV)Case system v Code SystemCase system Haphazard Restatement made by experts in

specific areas of law All courts are considered as precedents Judicial legislationCode system systematic codification SC decisions are the only ones

considered as precedentso Use other methods to challenge

applicability of precedentso Ways to overturn precedents –

changes/developments in economic and social status

Custom law

SCHOOL OF TAUGHT IN STARE DECISIS Mechanical & Textual

o Attack of stare decisiso Mode of reasoning is based on

scienceo The science of the law is based on

scientific method which is based on empirical methods Gather information based on 5

senses Experimentation



o Problem: too mechanical and try to fit cases to the general principles which may be inadequate or already inapplicable based on current circumstances

o Solution law should be stable but should not stand still. Stable in the sense that it should not cave to the caprice of justices but should be change when times requires it.

Middle Ground: Cardozo mixed of stare decisis and socialization

Sociological


2nd Sem SY2009-2010 IV. LAW AND LANGUAGE

Schools of Constitutional Analysis Interpretive

o Schools Sociological Non-interpretive – interpretation should

be limited to the text of the Constitution

MECHANICAL JURISPRUDENCE (POUND)

Scientific method Socialization

What is Mechanical Jurisprudence?

THE RULES OF LAW AS A LAW OF RULES (SCALIA)

Why is Scalia partial to plain meaning rule? Believes that in most cases the text

would suffice If the plain meaning is not used,

people would be deprived of due process since the they would not know how the provisions are to be applied

Legislation should clarify the meaning of laws

Rules referred to by Scalia Text of the Constitution or statutory

lawso There is difference between

constitutional and statutory interpretation. Constitutional interpretation is controlled by the understanding of the people while statutory interpretation is controlled by the intention of the framers.

Precedents: stare decisiso Stare decisis are merely evidence of

the law in civilian law system while it is considered as sources of law in common law system

o In the Philippines,

Two modes of reasoning challenged by J Scalia Balancing of interest Plain meaning

LAW AND LITERATURE (CARDOZO)

Law and Literature studieso Law in literature. Understanding

enduring issues as they are explored in great literary texts. Focus on the legal themes depicted in novels and other literary works.

o Law as literature. Understanding legal texts by reference to methods of literary interpretation, analysis and critique. Studies the educational aspects of actual trials that involve recurring legal disputes over issues such as race relations and proper role of law enforcement in a free society. Analyze the prose and rhetoric that judges use to explain the legal arguments and conclusions in their judicial opinions.

o Law and literature. Analytical tools each discipline employs when interpreting a particular text, whether it be constitutional, a statute, a judicial precedent, or a work of literature.

Judges must not only judge but also write. A profession of words can have grandeur only if there exist artistry.

Substance is important but one can only say that it is the only important aspect of judicial writing if one could draw the distinction between substance and mere appearance.

Opinion should include:o Clearness. The sovereign virtue for

the judge but must permit a certain margin of misstatement.



o Persuasive forceo Impressive virtue of sincerityo Fire or the mnemonic power of

alliteration and antithesisSix types/methods of opinion literary styles 1. Magisterial or Imperative

o First in dignity and powero Meager in illustrations and analogyo Argues in downward rush and

overwhelming conviction of syllogism

o Exudes sense of mastery and powero Movement from premise to

conclusion is put before the observer as something more impersonal than the working of an individual mind.

o Use of Superlatives, sounds imposing and sure and calm

o Utilized in fields where some established principle is to be applied to new facts or where the area of its extension or restriction is fairly obvious or narrow.

o Omit immediate steps and stages and leap to conclusions

o e.g. judicial power, slavery2. Laconic or Sententious

o Declined as law have become more complex to be forced within a sentence

o Use of epigram, jest or joke.3. Conversational or homely

o Appeal to everyday experience/emotion

o Making it appear that the dictate is similar to those which we practice or we considered as customs.

o Including examples which common people experience or are likely to experience

4. Refined or artificial

o Translate native dialect to English, I would be better if they just write in the national language

o The process of thinking in native language is different from the process of thinking in English language

o Importance of “connotation”o Euphemism is a kind of artificial

languageo Lend itself to cases where there is

need of delicate precisiono Use of more appropriate wordso e.g. construction of a will

5. Demonstrative or persuasiveo CJ Punoo A freer use of the resources of

illustrations and analogy and history and precedent, in brief, a tone more suggestive of the scientific seeker for the truth and less reminiscent of the priestess on the tripod

o March of opinions from established premises to inevitable conclusions

6. Tonsorial or agglutinativeo Succession of quotations closes with

a brief paragraph expressing firm conviction that judgment for the plaintiff or for defendant follows as an inevitable conclusion

o Cut and paste of items from decisions of the lower or other prior decisions

Dissenting opinion. Speaks to the future

NICOLAS V ROMULO578 SCRA 440

Ponente: Azcuna, J.Nature: Petitions for certiorari as special civil action and/or or review of the decision of the CAFacts:



11.01.05. Rape Pursuant to VFA bet. USA and Philis.,

USA was granted custody of Smith pending the proceeding.

Trial was transferred from RTC of Zambales to RTC of Makati for security reasons

12.04.06 RTC found Smith guilty and the other accused were acquitted. Smith was detained at the Makati jail until USA and Phils. come to an agreement pursuant to Article V of the VFA.

12.29.06. Smith was taken out of Makati jail and transferred to US Embassy pursuant to Romulo-Kenney Agreement of 12.19.06 and 12.22.06.

01.02.07. The CA decided to dismiss the petitions that the Phils. should have custody over Smith for having become moot.

Analysis: Bayan v Zamora. VFA is valid as it was

duly concurred by the Phil. Senate and recognized as treaty by the duly authorized representative by the US government

o Manner of recognition by the US is a matter of internal US law. Per US practice, agreements that are policymaking in nature are submitted to the Senate.

Relation bet. VFA and RP-US Mutual Defense Treaty of August 30, 1951 (which was concurred by both US and Phil. Senates)

o VFA, the instrument agreed upon to provide joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty.

o Thus, need only to be submitted to the US Congress under the Case-Zablocki Act

o Valid since made for the purpose of developing the capability to resist an armed attack falls under the provisions of the RP-US Mutual Defense Treaty.

Equal Protection Clause is not violated because there is a substantial basis for a different treatment of a member of a foreign military forces allowed to enter our territory and all other accused.

The Romulo-Kenney Agreements of 12.19/22.06 not in accord with the VFA itself because the detention in the US Embassy is not “by Phil Authorities as stated under art. V, Sec10 of the VFA.

VFA is self-executing and covered by legislation under Case-Zablocki Act

Styles used in the opinion: Art 18 Sec 25. “Acknowledge as a

treaty” Medellin Doctrine. Treaties entered into

by the US are not automatically part of their domestic law unless these treaties are self-executing or there is an implementing legislation to make them enforceable

Given a common term like acknowledged can be a subject of differing interpretations


2nd Sem SY2009-2010 V. CONSTITUTIONAL INTERPRETATION

APPROACHES TO CONSTITUTIONAL ANALSIS (TRIBE)

Modes of Construction Textual

o Two schools of taught on the proper interpretation of the Constitution Originalist. Weak position

because some of the concepts used at the time of ratification no longer applies in current times Blacks were not considered as persons but as slaves, women were not considered eligible to vote.

Non-originalist. Interpretation in light of changing circumstances. e.g. due process, originally includes only the steps/procedures to be taken by the court so that a person would not be deprived of life, liberty and property. Subsequently, in light of laissez faire, it acquired a substantive aspect so that now we have the procedural and substantive aspect which refers to the reasonableness or fairness of a particular provision of law passed by Congress.

o Meaning of a word in a law should be limited to the 4 corners of the document. But still need to interpret the meaning of a term in relation to its historical and context. Literal interpretation would almost always lead to absurd interpretations.

o Major Objection: Text does not answer all questions of meaning

o Used in ordinary problems of reading: issues of ambiguity, vagueness, obscurity

o Authoritative terms of the text do not, in general, posit the existence of a kind of legal vacuum – in which the absence of text entails the absence of law

o The constitution’s text is authoritative but not exhaustive or even within its sphere, necessarily self-defining

o Constitution’s text need not find its most obvious support in the Constitution’s text in order to be deemed part of the supreme law of the land

o Authority of constitutional text does not mean to read everything in its plain meaning although this remains an important idea.

o According to Black: it will be the constitutional provisions themselves that will supply the terms to which we hold ourselves accountable

o The constitutional text is taken as authoritative in the sense that anything flatly contrary to it cannot stand, even if not as invariably exhaustive of the universe of constitutional meaning

o Interpreting constitution’s text requires close attention to linguistic context – that is to surrounding language

o e.g. appointments to positions which requires confirmation from Commission on Appointments

Constitutional Structureo Pertains to relationships of two or

more rights, structures, institutions, etc.

o Relations between political liberty and individual rights, liberty v power, rights v authority



o Government architecture. e.g. separation of powers, how the different branches relate to each other. For example, issue on executive privilege in relation to the investigation proceedings of the legislative.

o Balancing of rights, freedom of speech

o Strong point. Very useful in constitutional interpretation because it goes beyond the text but not on statutory legislation since it mostly deals with only one institution and one subject, thus does not deal so much with relations.

o The constitution is a hypertext – a text and a gloss – not unlike a medieval manuscript

o Constitution’s structure: that which the text shows but does not directly say – diction, word, repetition and documentary organizing forms all contribute to a sense of what the constitution is about

o e.g. concept of separation of powers, o According to Justice Rehnquist: when

the Constitution is ambiguous or silent on a particular issue the Court has often had to rely on notions of a constitutional plan or the ordering of relationships within the federal system necessary to make the Constitution a workable governing charter

o Appropriate to flesh out the contours and content of federalism-based limits on the national government or to fill in the elements of the separation of powers. It is also important in order to give shape and substance to unenumerated rights

Historicalo Take into consideration what was

happening during the time the text was created/ratified.

o What should the text convey to a reader who looks to it across generations for instruction on required, permitted, or prohibited courses of action.

o Reader should begin with what the provisions or the design meant at the time they were conceived and at the time they become law

o Check what is meant by the provision in order to extend its meaning to current situations, e.g. rules concerning captures (piracy) on land and water extended to those made through the internet.

o Original meaning would at least establish a baseline and create a presumption to be overcome

o When new meanings should be resisted. Domestic Violence originally meant as internal conflicts/civil war? But now includes violence inside the home.

o Original meaning v original intent. Meaning to the common people since they were the ones who ratified the constitution versus meaning for the framers

o What particularly illustrious thinkers believe may reasonably be invoke not as direct proof of the original meaning of the Constitution but as a source of insight into what the Constitution might be though to mean today.

o Forbidding a kind of abuse v establishing an institution or practice. Essence read differently as



time changes and adhering to historic practice to ensure that it would not change. unreasonable searches and seizures (specified items per law – new items such as DNA, computer files), Abuse-avoiding. Freedom of

speech, unreasonable searches and seizures, private property taken by government without just compensation, due process

Preserving institutions. Right of trial by jury

o Reason for post-enactment history to justify a changed reading To avoid conflict with subsequent

constitutional text – since intention is to make the all provisions to survive and not struck down any

To render a constitutional provision more harmonious with and more faithful to the provision’s basic meaning in light of subsequent developments whether or not in the form of new constitutional language.

Nation’s Ethos/Moral/Ethicalo Direct appeal to underlying values

and commitments are often controversial

o e.g. cruel and unusual punishment, due process of law

o propositions to appeals to values in constitutional argument

o values also form part of the constitution

o e.g. appointment of CJ-in-waiting, there is a gap in the constitutional provision on appointment of CJ during the election ban

Stare Decisis.o Interpretations of court

o Court aims to preserve the basic meaning of the Constitution by improving one’s reading of its terms

Combination

Textual interpretation : Sec. Of Nat’l Defense v Manalo What was interpreted: Right to be

“Secured”o Secure in relations to “persons”

invoked by the Manalo brothers – security of persons from bodily harm

o Secure in relation to “papers’ invoked by the Secretary of National Defense – related to seizure

What did the SC ordered the lower court? Furnishing of documents related to the abduction of the Manalo brothers

It as improper for the Sec of Na’tl Defense to invoke the provision in the Constitution in Right to Security since the provision intends to protect private individuals from abuses of the State/government powers and not the other way around. Furthermore, with respect to petition of the Manalo brothers,

Writ of Amparo is likened to a subpoena duces tecum

Security of persons does not only include ____ but includes freedom from threats of arrest

Historical interpretation : Estrada v Escritor Interpretation of immorality: public v

religious Importance of historical aspect? Factual question: Estrada’s sincerity to

religious belief Ponente is defending his position

against that of the Dissenting Opinion of Carpio-Morales.



There is a wall between public and religious morality.

Dissenting opinion is insisting that two persons in a live-in situation are engaged in an immoral conduct.

Court held that concept of immorality should not be interpreted in religious terms because of differences in views and beliefs of different religious orders. E.g. bigamy per se is not immoral since this is allowed under the Muslim Laws

Structural interpretation : N. Cotabato v GRP Structures:

o Executive Promise of legislation MOA-AD recognizes a separate

state which have separate executive, legislative and judiciary functions

MOA-AD pass a law to validate the MOA abolishing the ARMM and establishing Bangsamoro

o Legislation Function threatened due to

promised future legislationo Judicial – justiciability

Relationship between the President and the judiciary

Ruling over the proposed MOA MOA would diminish the power of

the judiciary Destroy the structures of government Decision: Declared MOA-AD as

unconstitutional

Stare Decisis: Lambino v COMELEC Why does Puno think that the decision

in Santiago should not be followed:o Court did not decide to strike down

the

o In Santiago the ruling is that “There was no law passed by Congress which would implement the people’s initiative.”

o In the Lambino Case, the court held that RA 6735 was sufficient – it was only applicable to statutory but not to constitutional amendment.

Factors to consider before overturning prior decisions:o Workabilityo Relianceo Intervening developments in lawo Changes in fact – should be relevanto Others: closeness of voting, age or

prior decisions, merits of prior decisions

o Silenceo Judicial activism v passivity – not

applicable in the Philippines since our Constitution requires that Judiciary has expanded function of determining grave abuse and that it should not refrain from giving judgment even if the law is silent.

Ethical: Chavez v Gonzales Ethical justification of freedom speech.

Must be seen in relation to ethics of a democratic government. An individual as part of state must take part in the decision process making, thus must have access to information, be free to express opinion. Otherwise, would not be able to participate meaningfully in the democratic process.

Freedom of press must be justified with the democratic ethic. Otherwise, it would be considered a right which could just be taken away by the state.



Prudential/Balancing: Iglesia ni Cristo v CA MTRCB’s power to regulate v INC’s right

to freedom of religion and religious speech

The Court held that the government has the power to regulate but it failed to show clear and present danger or evil. Thus, it cannot trump the freedom of speech.

Different kinds of legitimacy – so that decisions of the SC would be respected Legal Ethical from the perspective of the

community Sociological

CONSTRUING THE SOUNDS OF CONGRESSIONAL AND

CONSTITUTIONAL SILENCE Silence can be interpreted in two ways:

o Silence means yes, it is implied in the law thus enacted

o Silence means no, it is not implied in the law does cannot be enforced.

Context. Written by a common law lawyer as compared with the civil law. In the common law system, the Judiciary’s interpretation becomes law of the law and may even repeal existing laws as enacted by the Congress.

Example: Immunity of President from suit based on history

Civil Law v Common Lawo Civil Law

Legislature creates law Draft bills Legislative investigation Debate Approval

More democratic Future – general

Judges are not in the position to legislate. Law students are trained

under highly specialized sections of law.

Associations are limited to lawyer/ more affluent class

o Common Law Judges’ decisions forms part of

the law Common law lawyers considers

the following process superior over legislation Adversarial litigations Test of principles judgment

judicial review past – facts at hand rules devised to thwart legislation

Narrow and illiberal construction. Holding laws to those cases which it covers expressly. Strict constructiono Penal. It results to

deprivation of loss or impairment of life, liberty or property thus need to be construed strictly against the state.

o Statutes in derogation of legal rights.

Narrow and illiberal attitude


2nd Sem SY2009-2010 VI. STATUTORY CONSTRUCTION

Relation to Constitutionality: White Light Corp. v City of Mla. Facts:

o Challenged validity of Mla. City Ordinance preventing hotels/motels from providing washup accommodations

Right to Privacyo Should be justified by a compelling

state interesto There are other legitimate activities

impaired o To justify impairment: for public

interest, must be reasonably necessary for the accomplishment of the purpose, not oppressive to private rights, no other means to accomplish purpose less intrusive to private rights can work.

Freedom of Movement Right to use property

o Deprives property owners of business

Harmonization of Constitution: Francisco v HOR Facts:

o Impeachment of Davideo 1st filed in July and dismissed on Oct.o Another impeachment case on Oct

after the first was dismissed Issue: Definition of “initiate” in the

Constitution versus that in the Rules and procedure promulgated by the Congress for Impeachment cases. (implementing rules)

Initiate per Constitution pertains to initial filing

Initiate per Congress Rules pertains to hearing of the Committee of the case

Justification:

o Verba legiso Intent of framers

Spirit over the letter of law: Ang Bagong Bayano v COMELEC Facts:

o Petitioner challenged the validity of allowing major political parties to participate in the party-list system

Decision: Major Political Parties may participate in the party-list system as long as they represent marginalized and unrepresented sectors of the society such as labor, women, peasant, urban poor, indigenous cultural communities, and youth

Conclusiveness of legislative findings: People v Ferrer Facts: Defendants in a case on Anti-

Subversion law assails the constitutionality of this law due to being a bill of attainder

Issue: WON the Anti-Subversion Law is null and void as being a bill of attainder? No.

Decision: Anti-Subversion law is upheld and considered as not a bill of attainder.

Members of CPP are in violation as the law as declared by Congress in 1957.

Court accepted the declaration of Congress because of the legislative procedures followed by the body to arrive at a Congressional declaration.

General v Specific Words: Borromeo v Marciano Facts: Case of transfer of a judge from

one district to another. Governor appoints Borromeo, who is the current judge in District A, as judge of District B – which Borromeo refused. then


2nd Sem SY2009-2010 VI. STATUTORY CONSTRUCTION

appoints Marciano as judge of District A.

What do you mean by harmonizing two words?

Appointment. Power of governor-general (GG). Intent is to vest power to GG to appoint judges.

Transfer. Power of GG. Transfer should be with consent (preside the independence of the judiciary).

How to determine general and specific:o Proviso – specific. The purpose of the

provisio is to limit the application of law.

o Subject matter. Check which one creates limitation.

General v Specific Laws: Lagman v City of Manila Facts: City of Manila passed ordinance

to reroute traffic on roads and streets within Manila. Public Service Commission grants certificate of public convenience

Decision: City of Manila utilized its Police power over Administrative Power. Power to regulate its territory.

Reddendo Singula Singulis: King v Hernaez Refers only to the last. When a list of words has a

modifying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital.

Facts: Issue: management, operation or

administration + officer, employee or laborer

Decision: concept of reddendo singular singulis does not apply. Each word to be applied to the subjects to which it appears by context most properly relate and to which is most applicable.

Casus Omissus: People v Manantan A case not provided for in the statute A person, object, or thing omitted from

an enumeration must be held to have been omitted intentionally

Facts: judge of CFI , justice of peace was subsequently omitted from list. No judge of CFI, justice of peace → no justice, judge…

Court held that justice of peace would fall under the category of judge. Since doctrine only applies when clearly established court held casus omissus does not apply. No omission just a substitution.

Expressio unius est exclusion alterus → not applicable. When statute appears to limit the enumeration, but there is no valid ground for the exclusion, the maxim would not apply.

Court laid down historical changes in the laws using the list and observed that when the 2 words were removed the 2 new words appear.

Antecedent and disqualifying words: Quisumbing v Garcia Facts: Issue: WON a sanggunian authorization

separate from the appropriation ordinance is required?

Decision:o If ordinance contains sufficient detail

on the project – no need for separate authorization

o If ordinance describe project in general terms – separate authorization is required

o If not included in the ordinance – sanggunian approval is required.

Disbursements. Sec 306 v Sec 346.


Legal Method Notes

Documents

2nd sem sy2009

uplaw legal

mutual defense

common law

code system

personal autonomy

natl defense

deductive