BRIEF SUMMARY LEGAL PHILOSOPHY (SATURDAY. 3:00PM 5:00PM) KEN MARCELO M. TEJANO Ll.

.B 4 Chapter II The Historical Perspective HISTORICAL PERSPECTIVE AS A STARTING POINT Although the historical school of jurisprudence is preceded by the teleological school of jurisprudence, there are good reasons for starting with the historical approach to the study of the nature of the law. The first is the basis itself of the perspective of the historical school of jurisprudence. Freidrich Karl Von Savigny (1779-1861) held that the law proceeds from the volksgeist. For Savigny, the concept of the soul and spirit of the people (diwayan) provides the sense of beginning and unfolding of the law. The other reason is the renaissance of the natural law theory, which is the cornerstone of the house of teleological jurisprudence. The concept of the natural law has again attracted the attention of legal philosophers and jurisprudents. Conversely, the concept of folksoul has lost a good deal of its appeal to many legal philosophers and jurisprudents. The ideas of soul and spirit are now rarely used in the works of modern philosophers. If at all, these ideas are generally used to mean a high degree of intelligence, which they call minded action. Indeed, modern jurisprudents have ceased to consider or to pursue the historical perspective as to the nature of law. Professor julius stone, for example, has even abandoned the category of historical jurisprudence in his work. Stone feels that the historical perspective of the nature of the law is only a chapter in the development of law in society. However, it is by no means suggested that the historical view of the nature of law has lost its value too. It is still useful in the evaluation of the legal development of a nation especially its legal history. HISTORICAL ELEMENT IN THE LAW It is a commonplace that the people have lived together as a group, whatever the reason and wherever the place. But due to the inevitable conflict of wants some kind of social order evolved in order to settle or harmonize conflicting or overlapping interests. It is not easy to say how this social order was established. It is very probable that it was based on some recurring decisions or adjustments of conflicts of interests. In some much manner, the ways of life of the people were developed and passed on from generation to generation. In time, a body of precepts crystallized. The precepts defining rules of action were classified and with the evolution of some form of government served as the beginning of the legal order. The advances in the social and political life of the people continued until the people developed into a body politic, welded together by common centers of interests and purposes to which the people submitted themselves with one accord. The presence of the historical element in the law is thus manifested by at least two important marks: 1) the changes in the social existence of the people, and 2) the progressive conditions of their

politico-legal development. These historical facts are unavoidable and are still in progress, although they may not have been interrupted. Thus, for the historical school of jurisprudence, the nature of the law and its commitant problems cannot be understood without reference to, or appreciation of, the sociopolitical phenomenon in which the law has grown. For historical jurisprudence, the law could not have thrived except in this environment. HISTORICAL VIEW LIMITED IN SCOPE For historical jurisprudence, the law, like a peoples language, manners and other social characteristics, is peculiar to a group of people. It is indigenous as the flora and fauna of the country of that people. Thus, historical jurisprudence accepts the idea that what is peculiar to a group of people is not necessarily true for another group of people. Each group of people has its own folksoul persisting from generation to generation. From this observation post, then, of historical jurisprudence the law is not universal in scope. It is only national in character, that is to say conservatively oriented to the time, place and individuality of a particular group of people. NATURE OF THE LAW Karl Freidrich von Savigny enunciated historical jurisprudence in his work entitled On the Vocation of Our Times for Legislation and Jurisprudence. In this publication, Savigny vigorously opposed the plan of Professor Anton Freidrich Justine Thibaut to codify the civil laws of the various Germanic provinces on the basis of the principles of Roman Law. Professor Thibaut advanced his proposal in an article entitled On the Necessity of a Common Law for All Germany. In this work, Professor Thibaut cited the successful application of the Roman Law principles in the French Code Napoleon. Thibaut felt strongly that the French experience could also happen in the codification of the civil laws of the different Germanic Provinces. In this famous debate, Savigny argued vigorously that Thibauts proposal was an affront to the German volksgeist. Savigny insisted that the use of the traditional legal materials of a people is the better approach to the task of codification and lawmaking rather than the use of an alien legal system. In determining the derivation of the law, Savigny directed attention toward its seedbed. In the words of Henry Sumner Maine (1822-1888), the acknowledged leader of historical jurisprudence in England, the law is the product of the huge mass of beliefs, opinions, prejudices, and even superstitions of a people produced by institutions of human nature reacting one upon another. But the seedbed of the law given by Maine is not quite adequate to explain the different treasuries of the folksoul and, hence, incomplete to contain the jural and nonjural materials of a group of people. In other words, it fails to take into account the other vital aspects of the national character and genius of a people. Indeed, Maine explains only the existence of two of the many treasuries of the folksoul. A. THE OBLUTIACS OF A PEOPLE While human beings have the distinct faculty to form ideas and concepts, they needed language as a means of communicating their perceptions to others. For this human beings are well equipped. And having achieved a language, they began to articulate themselves by means of their opinions, beliefs, longings, usages, traditions, idiosyncracies, arts, customs, and superstitions. This huge mass of oblutiacs reveals the national identity, character and genius of a people. Together they form the common consciousness and intelligence of the people.

It is not easy to say when the national character and intelligence of a group of people first emerged and under what conditions they flourished. All that can be done in this regard is to have a feel for this point in the peoples existence and evaluate its significance on the legal order. This, of course, is not capable of immediate proof. But it can be assumed that each group of people has its own common consciousness about its national identity and character. For historical jurisprudence this hypothesis brings some degree of coherence into an otherwise gray area about the emergence of the volksgeist or diwayan. B. THE FOLKSOUL The folksoul (diwayan) is composed of several elements, each element a treasury of the national identity, character and genius of a people. While these elements belong to folksoul they are distinct from one another. (1) Folklore In this treasury are deposited the beliefs and traditions of a group of people. These beliefs and traditions, which are unrelated to belles-lettres, constitute the folk learning or folk wisdom handed down from generation to generation in substantially the same form and content. It is the national confidence and faith which the people needed for their common welfare and survival. (2) Folksaying This treasury of the folksoul is composed of the opinions of the people. These opinions are stronger than mere impressions. They are expressions or announcements of orders and policies which the members of the community are expected to follow. Folksayings are either social or jural in nature. Those that are social in character include homely admonitions, advices about practical living, instructions in good manners, and moral statements. There are many Filipino maxims (sawikain) and sentements (sabi) containing the social feelings of the people. One is: Mabutin na ang mamatay na malinis ang budhi/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 masaktan. There are folksayings that are jural in nature. An example of this are: Ang mag-asawa sa ariarian ay iisa.; Huwag kang pumasok sa bakuran nino man ng huwag kang masakupan. Daig ng maagap ang masipag. (3) Folkway This is the third treasury of the common consciousness and national character of a people. According to Professor Georg Fredrich Puchta (1798-1846), a distinguished student of Savigny, folkways are composed of customs and usages of the people which make them reliable expressions of the folksoul. Customs and usages are widespread ways and practices which have evolved openly out of the

reactions of the people to the same demands, challenges and situations. The first uses of folkways were aid to life in the environment in which the people have found themselves. (4) Folksong This treasury of folksoul reflects the musical expressions innate to a people. Each folksong may be sung in different ways due to local coloring accent, although the basic tune is maintained. Folksongs are almost always anonymous. They are passed to succeeding generations. In the process, the folksongs may 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 Tulog Anay of the Visayans. Folksongs are set to indigenous and distinctive tunes (himig). (5) Folkdance This is another treasury of the common consciousness of a people. Folkdances are rhythmic and patterned succession of bodily movements with their own distinctive meaning and significance. There are two characteristics of folkdances. One is the significance or translation attached to them. The other is that they are not for gay and happy occasions alone but even for grim and difficult times. There are folkdances which, in some form or manner, are related to or connected with those which have to do with rituals, festivals, ceremonies, or simple frolics. (6) Folkart This is the sixth treasury of the life and spirit of a people. This category includes skills peculiar to a people applied to the creation or fabrication of objects of art or objects of utility. To a greater extent, the first objects of skill or ingenuity were the result of adapting natural things to human use. In the Philippines, some of the artful designs still existing today date back to the time when the first barangays of people coming from the southwest settled in the islands of Panay and Mindanao. A famouse one in the Maranao folkart is the sar-manok design. LIFE OF THE LAW Longtime ago, before the establishment of the legal order, that is to say law and government, the conduct of the people was governed by the folksoul or diwayan. The reason for this is that the folksoul or diwayan had a great deal of moral suasion and significance. During the course of time many opinions, beliefs, usages, traditions, and customs were either discarded or improved. Those that survived the interactions of human relationships and institutions and have permeated the people in common eventually solidified into the volkrecht or kautusan. BASIC POINTS OF HISTORICAL JURISPRUDENCE In the framework of the historical view as to the nature 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 is found and not deliberately made.

A. STATE AND FOLKSOUL The law embodies social and political progress of the people, thus, it is necessary that it follows its development which will undergone several stages. The first relationship that existed among the people was vertical or personal one. It existed in the family and clan. This was due to the fact that the earliest form of social living was in a group of kindred people. Later this relationship broadened into a horizontal or communal type of relationship. B. LAW NOT DELEBERATELY MADE The other point posited by historical jurisprudence is that the law is not deliberately made by the effort of human will but is discovered in the common consciousness of the people. As Rudolf Stammer puts it, the folksoul awakens this conviction and is responsible for it. However, Dean Roscoe Pound criticized this view as juristic pessimism. But historical jurisprudence has remained unperturbed in its view that reason alone cannot work miracles in legal development nor work wonders in constitution making, codification and legislation. The growth of the law is an evolutionary process. It does not proceed from the peremptory or arbitrary will of the legislators or the judges. Indeed, it would be too great a task to create law de novo by the sheer effort of reasoning. For examples, the law of property and the law of contracts, together with their ramifications, may be given. It is inconceivable that a lawgiver or lawmaker, contemplating or planning a civil code could have possibly revised and provided for the complexities of such laws. As Justice Benjamin Cardozo of the Supreme Court of the United States puts it, history built up the system 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 growth and development of the people themselves. As Frede Castberg puts it, since the historically given law is the object of legal research the latter became conservatively oriented, not reformist; it became national, not universal, in aspirations. They are engaged in the formulations of the technical legal percepts, viz., legal rules, legal principles, legal concepts, and legal standards. Taken as a whole, these specialists become the agency or the instrumentality of the people in the articulation and communication of the law. SIMILARITY OF DIFFERENT LEGAL ORDERS Curiously enough, historical jurisprudence is confronted with the task of reconciling its concept of the nature of law with the phenomenon that in some groups of people there is a similarity in their legal orders. A. HISTORICAL REASON In the process of development of a group of people, many outside factors or foreign traitcomplexes, as the anthropologists put it, may have been assimilated by the people. Thus, political, commercial, religious and other types of contracts with other groups of people have had great deal to do with the resulting similarity or even uniformity in the legal orders of different peoples.

These outside contacts also explain the phenomenon that some aspects of a foreign legal system inconsistent with the oblutiacs of a people coming under the dominion of another group of people need a considerable degree of imposition. Ultimately, such outside and unacceptable provisions of the foreign law are abolished. One example is worth repeating. When the Civil Code of the Philippines was instituted in 1949, certain provisions of the Civil Code of Spain touching on dote, censos, usos, and habitacion, which were inconsistent with the oblutiacs of the Pilipinos, were abolished. B. JURISPRUDENTIAL REASON The precepts of justice and fairness are said to be permanent and present in all men everywhere since they are impressed in the human heart and mind. Furthermore, they are supposed to be basic or identical for all peoples. The precepts of justice and fairness ought, therefore, to explain the resemblance or similarity in some aspects of the legal orders of different peoples. On general or first principles, the similarity or uniformity in the legal orders of different peoples are easily grasped and understood. In this instance were a norm states that no one can enrich himself at the expense and misery of another. This self-evident norm is based on the universal precepts of justice and fairness. VALUE OF HISTORICAL PERSPECTIVE The historical perspective of the nature of the law is also valuable and significant to policy makers and government functionaries. They can draw on the volkgeist or diwayan. Thus, legal research is to become oriented to the soul and spirit of the people. This element of value carries with it a special significance whose implications are far reaching. According to Karl Freidrich von Savigny, emphasized that this approach to the problematic issues of legal ordering avoids uncertainty and accident in the development and application of the law. In the Philippines, this element of value has been demonstrated. The Civil Code, for example, is partly based on the oblutiacs of the Pilipino people. Article 10 of the Civil Code of the Philippines provides for the presumption that the lawmaking body intended right and justice to prevail whenever it enacts a statue. This jural expression of profound sense of, and love for, righteousness and justice of the people. Bocobo, a recognized and respected authority on the Filipino folksoul, states that this trait is imbedded like a gem in the elemental rock of the Pilipino soul, and has made our people rebel against every form of tyranny. This national sense or trait is treasured in the following sawikain or sabi of the people: 1. Ilubog at dagnan man ang katwiran/Ay pilit itong lulutang. (Right though sunk and weighted/Will nevertheless rise to the surface). 2. Iti linteg isut taklin daguiti nalap-it. (Right is the bulwark of the weak). Articles 19 through 36 of the Civil Code express the Pilipino folkway concerning human relations. In the words of the Code Commission, they are basic principles that are to be observed for the rightful relationship between human beings and for the stability of the social order. They are indicative of certain norm that spring from the fountain of good conscience of the people and are more precious than life and riches in the moral code of our people. This sense 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 in dishonor). 2. Masira man sa pamimilak/Huwag lamang sa pangungusap. (It is better that riches are lost/Than to break ones word). Another confirmatory provision in the Civil Code of the Philippines of the value of the historical view of the nature of law is the system of absolute community of property between spouses. As pointed out earlier, it is a system that is tradional in the Filipino way of life. It expressed in Articles 198 through 211 of the Civil Code Commission, it is nearer to the idea of family unity and is more in harmony with the traditional oneness of the Pilipino family. The congress instituting the Civil Code expunged this particular draft provision. But it seems that courts can still be guided by these maxims if and when necessary. There is nothing the matter with them since they are in the folksoul. The foregoing illustrations, which are by no means exclusive, indicate that with or without modifications the historical doctrine of the nature of the law as the life and spirit of the people is valuable and practicable in the legal ordering of society.