Report on Legal Philo

8/13/2019 Report on Legal Philo

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LIFE OF THE LAW

BASIC POINTS OF HISTORICALJURISPRUDENCEA. STATE AND FOLKSOUL

B. LAW NOT DELIBERATELY MADE

SIMILARITY OF DIFFERENT LEGALORDERS

A. HISTORICAL REASON

B. JURISPRUDENTIAL REASONVALUE OF HISTORICAL PERSPECTIVE


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There are good reasons for starting with thehistorical approach to the study of the nature of thelaw. Even though the historical school of

jurisprudence is preceded by the teleologicalschool of jurisprudence.

HISTORICAL PERSPECTIVE AS ASTARTING POINT


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HISTORICAL PERSPECTIVE AS A STARTINGPOINT

The first basis is the perspective of the historicalschool of jurisprudence. According to FreidrichKarl Von Savigny (1779-1861), the law proceedsfrom the volksgeist. And for Savigny, the conceptof the soul and spirit of the people (diwayan)provides the sense of beginning and unfolding ofthe law.The other basis is the renaissance of the natural

law theory, which is the cornerstone of the houseof teleological jurisprudence. The concept ofnatural law has again attention on the legalphilosophers and jurisprudents.


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HISTORICAL PERSPECTIVE AS A STARTINGPOINT

An example given by Professor julius stone, haseven abandoned the category of historical

jurisprudence in his work. Stone feels that thehistorical perspective of the nature of the law isonly a chapter in the development of law insociety.However, it is by no means suggested that thehistorical view of the nature of law has lost itsvalue too. It is still useful in the evaluation of thelegal development of a nation especially its legalhistory.


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It is a commonplace that the people have livedtogether as a group, whatever the reason andwherever the place. But due to the inevitable

conflict of wants some kind of social order evolvedin order to settle or harmonize conflicting oroverlapping interests.

HISTORICAL ELEMENTS IN THELAW


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For historical jurisprudence, the law, like apeoples language, manners and other socialcharacteristics, is peculiar to a group of people. It is

indigenous as the flora and fauna of the country ofthat people. Thus, historical jurisprudence acceptsthe idea that what is peculiar to a group of people isnot necessarily true for another group of people.

HISTORICAL VIEW LIMITED INSCOPE


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NATURE OF THE LAW


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NATURE OF THE LAW

Karl Freidrich von Savigny enunciated historical jurisprudence in his work entitled On theVoc at ion o f Our Tim es for Legis lat ion andJur i sp rudence .

In this publication, Savigny vigorously opposedthe plan of Professor Anton Freidrich JustineThibaut to codify the civil laws of the variousGermanic provinces on the basis of the principlesof Roman Law.


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NATURE OF THE LAW

Professor Thibaut advanced his proposal in anarticle entitled On the Necess i ty of a Com m onLaw fo r Al l Germ any .In this work, Professor Thibaut cited thesuccessful application of the Roman Lawprinciples in the French Code Napoleon. Thibautfelt strongly that the French experience could alsohappen in the codification of the civil laws of thedifferent Germanic Provinces. In this famous debate, Savigny argued vigorously that

Thibauts proposal was an affront to the Germanvolksgeist. Savigny insisted that the use of thetraditional legal materials of a people is the betterapproach to the task of codification and lawmaking


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NATURE OF THE LAW

In determining the derivation of the law, Savignydirected attention toward its seedbed. In the words ofHenry Sumner Maine (1822-1888), the acknowledgedleader of historical jurisprudence in England, the lawis the product of the huge mass of beliefs, opinions,prejudices, and even superstitions of a peopleproduced by institutions of human nature reacting oneupon another.

But the seedbed of the law given by Maine is not quiteadequate to explain the different treasuries of thefolksoul and, hence, incomplete to contain the jural andnonjural materials of a group of people.


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NATURE OF THE LAW

In other words, it fails to take into account the othervital aspects of the national character and genius ofa people. Indeed, Maine explains only the existence of two ofthe many treasuries of the folksoul.


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Human beings have the distinct faculty to form ideas andconcepts, they needed language as a means ofcommunicating their perceptions to others. For thishuman beings are well equipped. And having achieved alanguage, they began to articulate themselves by meansof their opinions, beliefs, longings, usages, traditions,idiosyncracies, arts, customs, and superstitions. This

huge mass of oblutiacs reveals the national identity,character and enius of a eo le. To ether the form the

THE OBLUTIACS OF A PEOPLE


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THE OBLUTIACS OF A PEOPLE

It is not easy to say when the national characterand intelligence of a group of people firstemerged and under what conditions theyflourished. All that can be done in this regard is tohave a feel for this point in the peoples existenceand evaluate its significance on the legal order.This, of course, is not capable of immediateproof. But it can be assumed that each group of

people has its own common consciousness aboutits national identity and character. For historical

jurisprudence this hypothesis brings some degreeof coherence into an otherwise gray area about

the emergence of the volksgeist or diwayan.


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THE FOLKSOUL

(1) Folklore

In this treasury are deposited the beliefs andtraditions of a group of people. These beliefs andtraditions, which are unrelated to belles-lettres,constitute the folk learning or folk wisdom handeddown from generation to generation insubstantially the same form and content. It is thenational confidence and faith which the peopleneeded for their common welfare and survival.


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THE FOLKSOUL

(2) Folksaying

This treasury of the folksoul is composed ofthe opinions of the people. These opinions arestronger than mere impressions. They areexpressions or announcements of orders andpolicies which the members of the community areexpected to follow.


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THE FOLKSOUL

Folksayings are either social or jural in nature. Those thatare social in character include homely admonitions,advices about practical living, instructions in goodmanners, and moral statements. There are many Filipinomaxims (sawikain) and sentements (sabi) containing thesocial feelings of the people.One is: Mabuti na ang mamatay na malinis angbudhi/Kaysa mabuhay na parang pusali.

Two is: Pag- aasaway di biro/Kanin bagang isusubot iluluwa kung mapaso. Three is: Kumindat sa dilim. Fourth is: Maglubid ng buhangin.

And the last is: Kung mainit ang kalan/Huwag hipuin ng di


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THE FOLKSOUL

There are folksayings that are jural in nature. Anexample of this are:

Ang mag-asawa sa ariarian ay iisa .; Huwag kang pumasok sa bakuran nino man nghuwag kang masakupan . Daig ng maagap ang masipag .


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THE FOLKSOUL

(3) FolkwayThis is the third treasury of the common

consciousness and national character of apeople. According to Professor Georg FredrichPuchta (1798-1846), a distinguished student ofSavigny, folkways are composed of customs andusages of the people which make them reliableexpressions of the folksoul. Customs and usagesare widespread ways and practices which haveevolved openly out of the reactions of the peopleto the same demands, challenges and situations.The first uses of folkways were aid to life in theenvironment in which the people have found


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THE FOLKSOUL

(4) FolksongThis treasury of folksoul reflects the musical

expressions innate to a people. Each folksong may besung in different ways due to local coloring accent,although the basic tune is maintained. Folksongs arealmost always anonymous. They are passed tosucceeding generations. In the process, the folksongsmay undergo changes.

In the Philippines, the songs of the people (awit)may be a lullaby or cradle song like the Duaya of the

Ilocanos, the Tulog na Bunso of the Tagalogs, and the Ili-Ili Tulo Ana of the Visa ans. Folkson s are set to


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THE FOLKSOUL

(5) FolkdanceThis is another treasury of the common

consciousness of a people. Folkdances arerhythmic and patterned succession of bodilymovements with their own distinctive meaningand significance. There are two characteristics offolkdances. One is the significance or translationattached to them. The other is that they are notfor gay and happy occasions alone but even forgrim and difficult times.

There are folkdances which, in some form ormanner, are related to or connected with those


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Longtime ago, before the establishment of the legalorder, that is to say law and government, the conductof the people was governed by the folksoul ordiwayan. The reason for this is that the folksoul ordiwayan had a great deal of moral suasion andsignificance. During the course of time many opinions,beliefs, usages, traditions, and customs were eitherdiscarded or improved. Those that survived theinteractions of human relationships and institutions

LIFE OF THE LAW


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In the framework of the historical view as to thenature of the law, two important points stand out.First, the state is regarded as the highest expression

or personification of the law. Second, the law isfound and not deliberately made.

BASIC POINTS OF HISTORICALJURISPRUDENCE

BASIC POINTS OF HISTORICAL


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A. STATE AND FOLKSOUL

The law embodies social and politicalprogress of the people, thus, it is necessary that itfollows its development which will undergoneseveral stages. The first relationship that existedamong the people was vertical or personal one. Itexisted in the family and clan. This was due to thefact that the earliest form of social living was in agroup of kindred people. Later this relationshipbroadened into a horizontal or communal type ofrelationship.


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BASIC POINTS OF HISTORICAL


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For examples, the law of property and the law ofcontracts, together with their ramifications, may begiven. It is inconceivable that a lawgiver or lawmaker,contemplating or planning a civil code could havepossibly revised and provided for the complexities ofsuch laws.

As Justice Benjamin Cardozo of the SupremeCourt of the United States puts it, history built up thesystem and the law that went with it. Thus, historical

jurisprudence posits the idea that since the law cannot be realized in the individual but only in the species, then the law is the product of the national genius or

common consciousness, developed by the steady


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Curiously enough, historical jurisprudence is confrontedwith the task of reconciling its concept of the nature oflaw with the phenomenon that in some groups ofpeople there is a similarity in their legal orders.

SIMILARITY OF DIFFERENTLEGAL ORDERS

SIMILARITY OF DIFFERENT LEGAL


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A. HISTORICAL REASONIn the process of development of a group of

people, many outside factors or foreign trait-complexes, as the anthropologists put it, mayhave been assimilated by the people. Thus,political, commercial, religious and other types ofcontracts with other groups of people have hadgreat deal to do with the resulting similarity oreven uniformity in the legal orders of differentpeoples.



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These outside contacts also explain thephenomenon that some aspects of a foreign legalsystem inconsistent with the oblutiacs of a peoplecoming under the dominion of another group ofpeople need a considerable degree of imposition.

Ultimately, such outside and unacceptableprovisions of the foreign law are abolished. Oneexample is worth repeating. When the Civil Codeof the Philippines was instituted in 1949, certainprovisions of the Civil Code of Spain touching ondote, censos, usos, and habitacion, which wereinconsistent with the o blutiacs of the Pilipinos,

were abolished.


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On general or first principles, the similarity oruniformity in the legal orders of different peoplesare easily grasped and understood.

In this instance were a norm stated that noone can enrich himself at the expense and miseryof another. This self-evident norm is based on theuniversal precepts of justice and fairness.


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The historical perspective of the nature of the law isalso valuable and significant to policy makers andgovernment functionaries. They can draw on the

volkgeist or diwayan. Thus, legal research is tobecome oriented to the soul and spirit of thepeople. This element of value carries with it aspecial significance whose implications are far

reaching.

VALUE OF HISTORICALPERSPECTIVE


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VALUE OF HISTORICAL PERSPECTIVE

According to Karl Fredrich von Savigny, emphasizedthat this approach to the problematic issues of legalordering avoids uncertainty and accident in thedevelopment and application of the law. In the Philippines,

this element of value has been demonstrated. The CivilCode, for example, is partly based on the oblutiacs of thePilipino people.

Article 10 of the Civil Code of the Philippines provides

for the presumption that the lawmaking body intended rightand justice to prevail whenever it enacts a statue. This juralexpression of profound sense of, and love for,righteousness and justice of the people.


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Bocobo, a recognized and respected authority onthe Filipino folksoul, states that this trait isimbedded like a gem in the elemental rock of thePilipino soul, and has made our people rebelagainst every form of tyranny. This nationalsense or trait is treasured in the followingsawikain or sabi of the people:1. Ilubog at dagnan man ang katwiran/Ay pilititong lulutang. (Right though sunk andweighted/Will nevertheless rise to the surface).2. Iti linteg isut taklin daguiti nalap-it. (Right is thebulwark of the weak).


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Articles 19 through 36 of the Civil Code express thePilipino folkway concerning human relations. In the wordsof the Code Commission, they are basic principles that areto be observed for the rightful relationship between humanbeings and for the stability of the social order. They areindicative of certain norm that spring from the fountain ofgood conscience of the people and are more preciousthan life and riches in the moral code of our people. Thissense or trait is indicated in the following sawikain or sabi

of the people.1. Mahalaga ang puring patay/Sa masamang puring buhay.(It is better to be dead with honor/Than to be alive indishonor).

2. Masira man sa pamimilak/Huwag lamang sa


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The congress instituting the Civil Codeexpunged this particular draft provision. But itseems that courts can still be guided by thesemaxims if and when necessary. There is nothing

the matter with them since they are in thefolksoul.

The foregoing illustrations, which are by nomeans exclusive, indicate that with or withoutmodifications the historical doctrine of the natureof the law as the life and spirit of the people isvaluable and practicable in the legal ordering ofsociety.


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The End!

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