7 - The Legal Systems of The World

THE WORLDS LEGAL SYSTEMS
A.
THE LEGAL SYSTEMS OF THE WORLD: classified into

two:
BASED ON CERTAIN
ETHNIC, CULTURAL
GROUPS OF PEOPLE
THOS BASED ON RELIGION
Chronological
order:
Egyptian,
Mesopotamian,
Hebrew, Chinese, Hindu,
Greek, Roman, Celtic, Slavic,
Germanic, Japanese, and
Anglo-American.
Composed primarily of the

Catholic (Papal) legal system
(or Canon law), and the
Mohammedan legal system.
GONE:
Egyptian
Mesopotamian.
Catholic or Canon law system

still exists as the law for the
members of the universal
Roman Catholic Church.
and
REMAIN:
Anglo-American,
Roman, Hindu (by tolerance
under
another
dominant
political system), Chinese (of
the oldest).
Mohammedan system not

only governs the spiritual life
of its members but has been
incorporated by many Islamic
states into their official legal
system.
(1) EGYPTIAN LEGAL SYSTEM: from the emergence of this

legal system till its disappearance during the reign of
Cleopatra, Egypt had been, throughout, a kingdom, in
which the MONARCH was constitutionally the sole
supreme ruler.
o He ruled according to law; but he was its autocratic
spokesman.
o In theory of law, every yard of land belonged to him,
every man belonged to him, alive or dead, for none
could even be buried without the kings assent.
o All law and all justice proceeded from him.
o MODERN WAY OF DESCRIBING: the prerogative
for exercising the judicial, administrative and
legislative functions was vested in the monarch.
o CENTRAL ROYAL COURT: the king and his
supreme judges administered justice as the focus
of government.
COMPOSITION: 30 supreme judges,

presided over by the Kings chief justice.
Merged: chief justice signified the kings

chief minister.
o PROVINCIAL COURTS: presided over by
administrative officials, under the Central Court.
o KING: in theory, the sole legislator.
Earliest human lawgiver in Egyptian tradition:

Menes (Mna) 3200 BC.
Greatest: Harmhab 1100 BC.
TREATY: one of the earliest recorded treaty was

entered into between the Egyptian King Ramses II
with the Hittite King Hattushilish III 1272 BC.
It provided for mutual assistance not only in

case of external attack but also in the case
of internal revolutions, and even went so far
as to provide for the extradition of political
offenders.
Its provisions about extradition reveal the

arrival of the Egyptians at the practical use of
some of the standard concepts of modern
jurisprudence.
o The Egyptian legal system began to be indermined
th
in the 18 century before Christ by civil war then b
conquests of invaders from Assyria, Persia, and
Greece.
Finally, the Roman Caezars arrived to strike

the final blow to Egypts political
independence.
Roman
law
and
government
supplanted its native institutions.
(2) MESOPOTAMIAN LEGAL SYSTEM (Euphrates and
Tigris): emerged in history by perhaps 4000 years before
Christ.
o Lost its radical independence under the Persians
about 500 years before Christ, and disappeared
under the Greeks, about 100 years before Christ.
o Its civilization was centered about BABYLON in the
southern portion known as Chaldea and in Assyria
in the north.
o KING: foundation of justice, receiving the law from
DIVINE guidance.
o KING HAMMURABI: his deputized administration of
justice passed from the hands of the royal priestclass, in the temples, to a body of ROYAL SECUAR
JUDGES, sitting commonly at the great gate and
market place of the city.
o MESOPOTAMIAN SYSTEM: the king was the
lawgiver, who was believed to have received all the
laws of his people from a deity.
SHAMASH (sun-god): god of Law; whose

children were Justice and Right.
SUMERIAN URUKAGINA OF LAGASH: the

first historically known Mesopotamian
lawgiver who reigned in the first quarter of
the third millennium.
GUDEA THE JUST: another lawgiver

who lived some three centuries later.
o SUMERIANS: non-Semitic people; one of the
earliest peoples occupying Babylonia.
1 feet square clay tablet: the oldest codetext in the world yet discovered.
CODE OF HAMMURABI: contains some three hundred

sections.
-
The earliest known national code in the world.
INTRODUCTION TO LAW | THE LEGAL SYSTEMS OF THE WORLD | AUF SOL 2014
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Textually, it is the most complete and authentic, as well

as the most advanced of ancient codes, reflecting a long
legislative history.
Range of its provisions: crime, family, property,
commerce.
o The code reflects not only an agricultural but also
a trading economy, legislates on the subjects of
carriers, merchants, and agents, and fixes the
charges of physicians, veterinarians, builders,
boatmen, field laborers, artisans, ox-drivers, and
shepherds and in other field deals with the
kissing of married woman, over-reaching by
female tavern-keepers, theft at fires, fraud by
wet-nurses, and the breaking of the horns or the
cutting off of the tail of hired oxen.
i.
CODE OF ASSUR (Egypt): a thousand years after

Hammurabi; since the full legal records of the Hebrew, another
Semitic people, though more primitive, date some 500 years
still later.
CODE OF
HAMMURABI
CODE OF
ASSUR
HEBREW
LAW
The husband on
divorce is bound to
restore to the wife
her dowry.
He may give
her only as
much as he
pleases.
Says nothing
of
any
payment
by
the husband.
ii.
The most advanced ideas in commercial law had

already been reached in Mesopotamian transactions.
o As early as King Hammurabis period, a
promissory note payable to bearer, dated about
2100 BC oldest negotiable instrument in the
world.
The glories of the Babylonian kingdom made it long

pre-eminent among neighboring peoples.
o The famous Hanging Gardens of Babylon.
o BELSHAZZAR: last native ruler of Babylonia.
He lost his empire to Cyrus, king of the new

Persian nation, Aryans by race, coming from
the east.
Other new invading races followed; and by a

century before Christ, under the Greek
conquerors, the Babylonian legal system was
supplanted.
(3) HEBREW LEGAL SYSTEM: naturally follows the
Mesopotamian.
o Both in Egypt and in Babylon, the Hebrew tribes
sojourned for long periods as a subject people.
Abraham, Moses with his brother Aaron,

Judge Daniel.
o DANIELs time: Hebrew legal history was still in its
first stage for the Hebrew legal system developed in
five well-defined stages:
iii.
iv.
v.
MOSAIC PERIOD (300 BC): including the

kinds and prophets, and the judges.
The Hebrew government was what

may be termed a THEOCRACY,
wherein the authority and the power
were ascribed to God.
Justice was at first personally

dispensed by the tribal leader, but as
the tribal population multiplied and
political life became more complex,
the transition took place the personal
justice of the tribal leader to an
ORGANIZED
HIERARCHY
OF
COURTS.
SOLOMON, son of David: made his

name for all time a synonym for
judicial wisdom (two mothers).
Books of the Pentateuch: Torah or

Ancient Law.
CLASSIC PERIOD: when the rabbi
developed the law;
The government was in theory still a

theocracy, i.e., divine command
inspiring the rulers.
By this period, the function of justice

had ceased to be a royal one.
In their internal government the

supreme authority (religious, social,
political; legislative and judiciary) was
vested in a SENATE, known finally
under
the
name
GREAT
SYNHEDRION 71 members.
Under the Roman sovereignty, the

Jewish people for two centuries
preserved the administration of their
own law in the main.
The ruler Herod was still

termed king.
When Jerusalem fell under the

assaults of Titus, son of Vespasian:
Hebrew self-government ended; and
their legal system ceased to prevail.
TALMUD PERIOD: when the records were
consolidated.
MEDIEVAL PERIOD: dispersion of the
Jewish nation.
Learned
rabbi
wrote
treaties,
compiled codes, and perpetuated the
traditions of the law.
MAIMONIDES: most famous.
By this means, the common customs

of religious and family life and
commercial practice were kept alive,
though the race was scattered in
many countries.
MODERN PERIOD: nationalism in Europe
began to amalgamate all races who lived
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within given territories Hebrew language

became only a secondary one for the Jews.
The Talmud was critically studied and

translated into the various national
languages.
Strictly, as a system of law, it ended with the
SECOND STAGE, AD 100, at the replacement of
Jewish law in Palestine by Roman rule.
After that it became mainly local custom,

chiefly in ceremonial and moral rules
The Hebrews attributed all their laws to some first
DIVINE LAWGIVER.
SCROLL OF THE LAW / TORAH / PRECEPTS OF MOSES:

the Ark of the Law is the most important treasure in the
Sanctuary because it contains the Jews most precious
possession: the Torah.
(4) CHINESE LEGAL SYSTEM: unique distinction it is the

only old one that has survived continuously to date (more
than 4000 years).
o The Chinese are the worlds greatest pacifists: they
have never gone out to seek by conquest a single
acre outside of their native territory.
o PATRIOTICALLY EXCLUSIVE, and have never
willingly admitted strangers into their native land.
They
were
entirely
contented
with
themselves, their ancestors, with their
history, and with their place in the world.
o The sturdy survival of the Chinese as a people is
due to their STRONG CLAN and FAMILY
STRUCTURE and their consequent conservatism.
a.
If translation is correct: the written law is

good and binding.
b. If translation is incorrect, the written law is
not binding.
A Chinese will regard as binding a rule promulgated to
the edicts from on High and he will deem himself free
to disregard it if he finds it in disaccord with the natural
law.
CONFUCIAN
POLITICAL
PHILOSOPHY:
a
government of men, not law.
o The Chinese philosophy of government is that a
good ruler makes a happy people.
o It relies on the wisdom and discretion of the ruler
rather than on the text of laws.
LEGISTS(400-200 BC): repudiated entirely the doctrine of a

government of men, in favor of the doctrine of a government of
laws.
-
Effectively practiced by able statement during the China

and the Hand dynasties.
The Confucian principle, congenial as it is to the racial
Chinese nature, was soon once more enthroned in
Chinese government, and firmly maintained that place
during the next two thousand years.
CONFUCIUS: his philosophy covers the whole range of

personal morality and practical politics.
-
His philosophy rests on a passionate yet rational

respect for those conventions which the experience of
the part has verified.
FILIAL PIETY is the root of all good conduct.
o The skillful carrying out of the wishes of our
forefathers.
CHOW LI / REGULATIONS OF CHOW: the earliest code

whose text is not extant (1100 BC).
-
GEORGE PADEOUXs explanation: china has believed in the

existence of a natural order of things, or law of Nature,
including all parts of the universe and adjusting them
harmoniously with one another.
-
This order of Nature was not made; it exists and is its

own reason for existence.
This natural law does not yield precedence to positive
law, i.e., laws representing human experience and
wisdom.
o Positive law ought to confine itself to translating
the natural law into written formula.
Another notable consequence of the Confucian

philosophy (or Chinese character) is that
CONCILIATION and MUTUAL ADJUSTMENT are
looked upon as ideal elements of justice.
Related to this is another marked feature of Chines
legal system the subordinate part played by the
letter of the law, and the legislation as such.
The ruler should frame the laws to voice the

vast sentiments and wants of the people
not to impose his personal will upon an
unwilling people; else there can be NO
CONTENTMENT.
Said to have been composed by Tan, Duke of Chow,

brother of the founder of the Chow dynasty.
This was secretly preserved even though it was sought
to be extirpated by the great Burning of the Books in
212 BC.
o This was a holocaust, decreed by an erratic ruler,
who forbade all invocation of the constituted
customs of the past and thus aimed to free his
own notions of government from all conservative
criticism.
After the Burning of the Books, many vicissitudes of

codification ensued:
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TANG DYNASTY: issued a code of some

500 articles.
b. The Tartar emperor TIMUR (grandson of
Kublai Khan): promulgated a code of 2500
articles.
The great Tartar leader, KUBLAI KHAN, proclaimed
that the doctrine of Confucius was a law destined
to govern all generations and all should conform
strictly to its divine behests for the states laws
are constant and invariable, and must be obeyed as
the rule of conduct for all.
Most radical innovation: introduction of an

ALPHABET, especially constructed on his
order by a Tibetan scholar, to supplant the
multifarious Chinese ideographs.
a.
HINDU SYSTEM: gave rise to two braches BUDDHISM and

BRAHMANISM (also called Hinduism), each of which is both
religion and law.
-
MING DYNASTY (1400 AD): the minister Young Lo framed a

new general code, and on this code was founded that of the
next Manchu dynasty, the Tsing, some two centuries later.
-
This TA TSING LU LI or CODE OF TSING became law

about 1650 AD, and endured until the revolution of AD
1912.
This work consists of:
1) A code proper, called LU: the text of which never
changes.
o 450 Lu sections.
o Fixed constitution.
2) The annual edicts and judicial decisions, called
LI: interpreted the Lu, made them flexible, and
adapted them to progress much like the
function of equity alongside the Common Law.
o 2000 Li sections.
o Annual modifications.
(5) HINDU LEGAL SYSTEM: the Turks and the Mongols ,

brought Mohammedan law, lived in jeweled magnificence,
and developed in India the arts of architecture, sculpture
and plaining the products of luxury and taste.
o The justice of these Mohammedan emperors was
done in the HALL OF AUDIENCE in their superb
palaces of the Audience Room known as the
WESTMINSTER HALL of Delhi.
o The MOGUL JUSTICE, though corrupt in some
periods and places, was efficiently dispensed
under many of their rulers.
The Emperor Salim had a chain and bell

attached to his own room in the palace, so
that all who would appeal could reach him
running the gauntlet of the palace officials.
o The ENGLISH race, last to enter India, brought
unity, liberty, and honest administration.
But the English law in India is mainly

PUBLIC LAW, preserving in private law
the various NATIVE CUSTOMS.
1
Indo-Aryans, Persians, Greeks, Turks, Mongols, English.
Of those six races of immigrants, the first, the

Indo-Aryans, or Hindus, some 3000 years ago in
origin, are the only race that developed a native
system of law.
BUDDHISM: simply means ENLIGHTENMENT.

o Founded by GAUTAMA BUDDHA.
o Buddhas basic teaching is the compet of
NIRVANA: means roughly the peace of mind and
soul that comes to man after he has overcome
three cravings: those for RICHES, SENSUAL
ENJOYMENT and IMMORTALITY.
o Edicts of KING ASOKA / Constantine of
Magadha: 30 40 edicts promulgated engraved
on stone.
Short tracts, expounding and propagating

his system of moral law, or DHAMMA,
founded on the preaching of some two
centuries earlier.
DHAMMA: meant RIGHTEOUSNESS,

GOOD FORM, DUTY and it came to
include the meaning LAW.
o It was eradicated and has virtually disappeared
from India, its original home has spread over
the entire east coast of Asia.
BRAHMANISM or HINDUISM: it developed into what is
certainly the most complicated theology known to
mankind.
o It holds that one supreme being, BRAHMA, exists
in several forms or manifestations and is the
universal spirit which pervades everything.
o LAWS OF MANU: the typical law-book of the
Brahman-Hindu system.
It was a Brahman compilation which was,

in point of relative progress of Hindu
jurisprudence, a recent production.
Founded on the principle of caste.

o BRAHMAN-HINDU RULE OF CASTE: caste is
the inner citadel of Hinduism.
The device breaking up Indians into fixed

categories.
Every Hindu is born into a caste and his

caste determines his religious, social,
economic, and domestic life from the
cradle to the grave.
No man may ever leave his caste, except

to be expelled.
It is impossible to progress from caste to

caste.
UNTOUCHABLES: below the fourth caste

/ outside of caste.
CHARACTERISTIC: marriage between

caste is forbidden. This rule is of course
what enables caste to survive unshaken.
th
Up to the 19 century, India was a congeries of

hundreds of principalities, in each one ruled
independently a MAHARAJAH.
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The justice of the king was in theory

personal.
It was partly done by sending judicial

officials to go on circuit, but special
classes of cases were reserved for the
kings personal hearing and decision in the
Audience Hall.
SECOND HOUR: set apart for his judicial

business.
As inculcated in the LAWS OF MANU, the

king, when he entered the assembly-hall,
and took the seat of justice to determine
lawsuits, should be accompanied by three
Brahmans learned in the Veda; he was
then assured that his justice was divine;
and divine justice, or DHARMA, says the
book of Manu, is like a might bull, who, if
obstructed or deceived, will avenge
himself on kings, judges, witnesses or
parties alike.
MAGADHA SCRIPT OF KING ASOK

(PALI, in its more developed form): had
become the repository of the Buddhist
laws of Burma, Ceylon, and Siam.
o Basis of Malayan civilization for several centuries
was also the Buddhist Brahman religion.
For in southeastern Sumatra had arisen,

about 700 AD, the Buddhist colonial
kingdom of Sri-Vishaya, whose domains
finally extended to the Philippine Islands
(where the tribal name Visaya still bears
witness to its remnants).
1300 AD: the kingdom of MADJAPAHIT

(from Java), overthrew the Sri-Vishaya
power, took control of the Philippines, and
lasted for about two centuries.
The Mohammedan invasion did not

begin until this period.
At the time of the Spanish discovery of the

Philippine Islands, not only were the more
advanced tribes using Hindu syllabaries
for writing but also their mythology,
folklore, politics, customary law, and
general literature had a distinct Indian
cast.
(6) GREEK LEGAL SYSTEM: with the Greeks, in their
maturity, is first met a legal system that is SECULAR, i.e.,
it is not conceived as a part of religion emanating from a
divine source.
o The Greeks race emerges into history as a hundred
or more local tribes, or clans, or city-states, each
independent, and each based more or less on
democracy.
o The Homeric poems show us the KING at the head.
He was at once the chief priest, the chief

judge and the supreme warlord of the tribe.
He was guided by a COUNCIL of the chief

men of the community whom he consulted;
o
o
the decisions of the Council and King

deliberating together are brought before the
Assembly of the whole people.
MORE IMPORTANT: Assembly of the

people
(AGORA),
out
of
which
DEMOCRACY was to spring.
The spirit of Greek justice, in classical times, was
SECULAR, and CIVIC OFFICIALS, not priests,
administered it.
Athens came to be the most highly developed of
the city states.
Essentially democratic with the political

fluctuations
between
democracy
and
oligarchy.
The places at which trials were held varied from
different classes of cases and different periods.
Every citizen being a LEGISLATOR, that the great
art of political oratory was first developed in the
worlds history.
The TRIAL method was only an advanced form of
the early one in the tribal assembly.
At Athens, each year a JURY LIST of 6000

or more names was made up.
For ordinary cases, a panel of two hundred

and one names, drawn by lot, might suffice.
But for special cases the panel might be as

many as 1000 or 15000 or even 2500
jurymen.
Under the system instituted by SOON, an Athenian
trial was entirely in the hands of NONPROFESSIONALS.
The presiding magistrate was selected by

lot, the jurors were drafted from the whole
citizen body, any citizen could be prosecutor
and the defendant conducted his own case.
There were magistrates who supervised the

preliminary proceedings; but at the trial, the
magistrate was no more than a chairman of
a public assembly.
There was no presiding judge, to declare the

law authoritatively.
There was no appeal, in the modern sense.
The citizens were the whole court judges

of law and of fact, without control.
There was no jury-deliberation.
After the evidence and speeches, all filled

out, casting their ballots in the verditurn as
they departed.
Athenian law and justice had come to turn
essentially on the JURY SYSTEM, and it was
elaborately organized, in the citys constitution.
399 BC: Socrates was accused of impiety and the
corruption of youth.
The trial was heard in court of 501 judges,

and king-archon presiding, and the old
philosopher was found guilty by a majority of
sixty.
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Socrates was the EXPOUNDER of the great art of

CROSS-EXAMINATION as a mode of extracting
truth; an art which the philosophers, in modern
times, have misguidedly abandoned to the lawyers.
MINOS: the first Greek law-giver from the island of Crete.

-
Minos, in Greek mythology, received his laws from

Zeus, and later plays the part of one of the three judges
of souls in Hades.
The development of Roman law can be divided into three

periods, namely:
A.
DRACON: appointed an extraordinary legislator

empowered to codify an rectify the existing law.
-
and
Revealed to the Athenians how harsh their laws were,

and his name became proverbial for a severe lawgiver.
An Athenian orator won credit for his epigram that
Dracons laws were written not in ink but in blood.
o This idea arose from the fact that certain small
offenses, such as stealing cabbage, were
punished by death.
BROADER VIEW: he drew careful distinctions between
murder and various kinds of accidental or justifiable
manslaughter.
SOLON: typifies the thorough democratizaition of Atenian law

and justice.
-
He was solicited to undertake the work of reform.

He was elected ARCHON (regent) with extraordinary
legislative powers.
One of his first acts was to repeal all the legislation of
Dracon, except the laws relating to man slaughter.
Every citizen is required to take an oath that he would
obey these laws; and it was ordered that the laws were
to remain in force for a hundred of years.
The truth seems to be that though the Greeks had a

system of justice, it can hardly be said that they had
a system of law.
They constructed no codes.
They reported no reasoned decisions.
They wrote no doctrinal treaties.
Their one juridical contribution, the popular

jury-courts, took a form most susceptible to
caprice, and essentially incompatible with
any science of law.
o Alexanders vast empire left surviving it no
permanent monument of Greek law.
(7) ROMAN LEGAL SYSTEM (ROMAN LAW): refers to the
entire legal order of the Roman state.
o Roman law embraces public law, sacred law,
private law and customary law.
Roman law is taken in a more restricted sense as

the mature or developed system.
In this sense, Roman law means the private

law governing private rights, interests, and
transactions, excluding the public law of
Rome.
It is in this sense that Roman law is also

known as CIVIL LAW.
B.
ARCHAIC PERIOD / period of infancy: from the

founding of Rome to the Twelve Tables (451 BC).
o Law was closely connected with religion.
o In origin, it proceeded from the divine will.
o Law then was found o received, not made, by
men.
o ACTUAL CONTENT: the rules consisted of
customs and traditions assured stability.
o LAW IS UNWRITTED: permitted its adaptation to
the changing conditions of Roman society,
according to the ideas of its custodian.
At the same time, such leeway in

interpretation opened the door to abuses
and injustices.
The LEGES REGIAE were confined

largely to public administration.
o IUS QUIRITIUM (quasi-religious regulations):
combined forces of religion and tradition:
1) IUS PUBLICUM: Roman constitution.
2) IUS SACRUM or IUS DIVINUM: i.e.,
pertaining to sacred rites.
3) IUS PRIVATUM: rules affecting private
rights.
o For a long time, knowledge of the law pertained
exclusively to the SACERDOTES PUBLICI (state
priests), particularly to the pontiffs.
In this capacity, they were known as

CUSTODES LEGIS.
o Religion and morals played a great part in
shaping Roman law:
1) FAS / that of religion: mandates of divine
origin.
They were of a higher plane and

had a greater range than merely
human law.
2) BONI MORES / that or morals: rules that
flowed from good morals and usages.
Provided that basis of the system of

Roman Equity.
3) JUS / that of custom and tradition: the
proper law.
Consisted of rules made binding by

custom and tradition. Fashioned by
human society itself.
Written or enacted rules consisted

chiefly of the LEGEL REGIAE, or
laws laid down by the kings.
Provided the core around which the

Roman legal system developed.
REPUBLICAN PERIOD / period of Youth: from the
Twelve Tables to the founding of the Empire (451-30
BC).
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o
o
o
o
Marked by a very high level of legal creativity.

EARLIER PART: the ius civile of Rome was
dominant.
LATER: forced the development and infusion of a
new element into Roman law.
IUS GENTIUM: with many subjects peoples
under the rule of Rome, an entirely new set of
rules had to be fashioned to govern their
relationships, not with Romans but also among
the different peoples.
In the latter stage of this period, the ius civile was
broadened to embrace many fundamental legal
principles common to the legal systems of the
nations under Rome.
SOURCES OF LAW:
1) CUSTOMS AND TRADITIONS.
2) INTERPRETATION thereof (responsa) by
the pontifices.
3) ENACTMENT of the assemblies.
452 BC: DECEMVIRI LEGIBUS SCRIBUNDIS
conferred with exclusive and supreme power
in the State.
Chief purpose was to compile a complete

code of laws.
They drew up a code of laws, approved by

the senate and by the comitia centuriata,
then published on ten tables of wood.
The ten tables of the decemvirs plus thse

later two constituted the TWELVE
TABLES.
With the adoption of the Twelve Tables,

the basic elements or principles of JUS
CIVILE came to be written.
Key principles under the TWELVE TABLES:
1) The familia or household as the key
institution: its welfare and continuity was
the responsibility of the head and he
enjoyed manus with respect to the entire
household.
2) Marriage was an institution for the
perpetuation of the familia: must be a civil
marriage, i.e., according to jus civile.
3) Civil law marriage gave the husband
manus over the wife and the children
subject to the patria potestas.
4) Where no children were born to the
marriage, children were introduced into the
familia through adoptio.
5) The aggregate of rights exercised by the
paterfamilias constituted the patrimonuim:
included administration of the sacra,
powers over the members of the familia,
dominion over things belonging to the
household.
6) Upon the death of the paterfamilias, those
under power become sui juris, and
succeeded to the patrmonium as sui
heredes.
SOURCES OF LAW at the middle and late
Republic stage:
1) LEGES: enactment of the Comita
Centruiata (one of the assemblies of the
whole Roman people).
2) PLEBISCITA: enactments of the Concilium
Plebis (the assembly of the plebians).
3) SENATUS CONSULTA: enactments of the
Senate, which had acquired the force of

law by custom and usage.
4) EDICT: enactment of the Praetor (the chief
magistrate).
Jus civile applied only to Roman citizens so to
meet demands for justice of the Itlaian
communities,
the
office
of
PRAETOR
PERREGRINUS was established.
He was an arbitrator.
Three classes of disputes went before

him:
i. Those involving Romans and
foreigners.
ii. Those involving foreigners of
different communities.
iii. Those involving foreigners of the
same community but residing in
Rome.
When the Praetor issued his Erictum

Peregrinum, along the same lines as the
Edictum Urbandum, he embodied in it
those principles of law and modes of
procedure which were common to the
several communities.
In the provinces, a similar development

took place.
Common elements and principles

were abstracted from the rules
obtaining
in
the
several
communities and were embodied in
a
provincial
edict
(Edictum
Provinciale).
Jus gentium came to be applied to the whole
body of supplementary law thus developed.
Elements:
1) The common law of the Italian
communities.
2) The common law of the provincial
communities.
These two systems were at first totally separate
and distinct both in origin and application but the
superior features of the jus gentium came to be
recognized.
Slowly, the principles of jus gentium came

to be absorbed in the jus civile.
Whenever the technicalities, rigidities and other
defects of the jus civile could lead to unjust
results, the equitable principles of jus gentium
readily came to hand.
Soon, even Roman citizens themselves

began invoking jus gentium to meet cases
for which jus civile provided no remedy or
was otherwise defective.
It came to be referred to as jus aequum or

aequitas.
In time, a large part of the jus gentium came to
be absorbed in jus civile through Edict. When the
edict became perpetual, the jus gentium
embodied in it became a constituent of the
Roman law.
Thus, jus civile in its extended or general sense
had
two
distinguishable
and
essential
components:
1) Those rules derived from the old jus civile.
2) Those derived from the jus gentium.
Jus civile was more easily purged of its archaic,
Page 7 | Bantay
o
o
rigid and cumber some features and jus gentium

came to be regarded, not as general positive law,
but as reflecting the universal principles inherent
in the nature of man.
Hence, jus gentium came to be identified

with jus natural.
Through imperial legislation and juristic

interpretation, Roman Law was gradually
purged of the technical and cumbrous
doctrines of the jus civile and assimilated
more and more the jus gentium.
NATURAL EQUITY: equity came to be divorced
from Law, and equitable rules were distinct from
legal rules.
Being founded on natural justice and the dictates
of reason, Equity was made to serve two
functions:
1) It was a standard for evaluating positive
law, exposing its limitations and defects.
2) It provided a system of supplementary
justice, by providing remedies where the
law was deficient, harsh or unjust.
BC 565 AD).
o SOURCES OF LAW:
a. Imperial constitutions: in the form of
rescripts and edicts.
b. Responsa prudentium, pursuant to lex de
responsis prudentum, or the law of
citations.
c. Codes promulgated by imperial authority.
o Three classes of Codes produced:
1) Pre-Justianian Codes of the East.
2) The Roman Codes of the West.
3) The Justinian Code.
o Among the Codes in the East which preceded
Justinians were:
a. Codex Gregorianus.
b. Codex Hermogenianus.
c. Codex Theodosianus.
Framed by authority of the emperor

Theodosius and enacted as law.
THEODOSIAN CODE: had great importance:

1)
The emphasis on general principles as a basis for resolving

specific legal problems led to the development of general
concepts and precepts which gave Roman law in its period
of maturity the character of a scientific or universal code.
These are seen in their definitions and maxims:
a.
b.
c.
d.
e.
POMPONIUS: no one should be enriched through

anothers disadvantage or injury.
POMPONIUS: what is ours cannot be transferred
to another without an act of our own.
ULPIAN: no one can transfer a greater right that he
himself possesses.
ULPIAN: they are not defrauded who know and
consent.
PAULUS: he is free from blame who known but
cannot prevent.
2)
Because it is a fruitful source of the legislation of

early Christian emperors.
Because it was made the basis for the codification of
Roman law by the German conqueror following the
fall of Rome.
o
They laid down the foundations for jurisprudence in their

perception of the relations between law and morality. Law is
founded upon morality, but the two are distinct.
o
Through the concept of ratio legis or ratio juris, they
developed equitable rules of interpretation.
a.
b.
c.
d.
In case of conflict, the spirit prevails over the letter

of the law.
Where a law is susceptible of various
interpretations, that interpretation will be preferred
which will occasion the least injury.
Where a law leads to an unjust result, it must be
interpreted with reference to rules of a similar
character.
Rules of restrictive and extensive interpretation to
attain just results.
Through indirect legislation via jus respodendi, and through

their influence on the legislation of the emperors, they
developed many general precepts and principles of law.
C.
Following the fall of Rome, the German kings

ordered the compilation of Roman laws for the
benefit of their Roman subjects:
1) Edictum Theodorici
2) Lex Romana Visigothorum or the
Brevarium Alaricianum
3) Lex Romana Burgundionum
The law of the Empire at the time of Justinian had
two parts:
1) Jus vetus (old law): consisted of leges,
senatus consulta, and writings of jurists
especially those with jus respondendi.
2) Jus novum (new law): consisted of the
constitutions of the emperors.
Thereafter, Justinian commissioned several
works which became part of the Corpus Juris
Civilis, as follows:
1) CODEX CONSTITUTIONEM: codification
of all imperial enactments into 10 books
with repeal of all ordinance excluded.
Revised Codex: collection of

imperial ordinances or constittiones.
2) DIGEST (pandects): collection of excerpts
from the works on classical Roman law by
39 jurists.
3) INSTITUTES OF JUSTINIAN: official
elementary textbook on Roman law for
students in law, based chiefly on the
Institutes of Gaius.
4) NOVELLAE CONSTITUTIONES POST
CODICEM: new imperial ordinances or
statutes issued after the revised Codex
dealing with various subjects and altering
the law on many points.
CLASSICAL PERIOD / maturity period and Old Age:

from the founding of Empire to the death of Justinian (30
Page 8 | Bantay
the primacy in Roman legal scholarship passed to

France (1500), to Holland (1700s) and to Germany
(1800s).
IRNERIUS: this role was to exalt the pure science of the

newly resurrected Roman texts.
-
He and his immediate successors, known as

GLOSSATORS, descanted on these texts with
glosses or explanations.
The glossators who followed him were the so-called
FOUR DOCTORS: Bulgarus, Maritnus, Jacobus and
Hugo.
AZZO: he was called in his day master of the masters of

law.
-
HUGO GROTIUS: learned in Roman law, though he left his

imperishable mark on international law.
-
He was so authoritative that the popular phrase ran:

you prepare, the jurists robe youll never wear.
ACCURSIUS: last and most famous of the glossators.

-
CUJAS: new and improved methods of research and

exposition had been devised, and he was their greater
exponent.
Whose gloss supplanted those of all his

predecessors and even the text of Justinian.
Of his gloss it was said: the law is what is contained
in the gloss.
o
His work on the Law of War and Peace was placed on

the Index Expurgatorius by the pope, yet it became the
Bible of lawyers.
ROBERT POTHIER: was a professor at Orleans, but also

served for 50 years on the bench.
-
PRACTICIANS or COMMENTATORS: a new

type of jurist destined to apply this pure science
to the legal practice of the day.
They gave opinions on law-classes and

wrote independent treatises.
These men now for the first time applied

the ancient principles of the Roman texts
to the Germanic and feudal customs.
Roman law began to be transformed into

Italian law.
They were also called BARTOLIST, after

the greatest of them BARTOLUS.
During the last 12 years of his life, this extraordinary

man wrote a comprehensive series of 26 separate
treatises, covering the whole civil law.
o
o
The codification of the civil law of France was the

achievement of the REVOLUTION.
After four years of legislative labor, the Civil Code
was proclaimed on03/21/1804 under the title, Code
Civil de Francais.
The title of the Code Civil was changed to

Code Napoleon in 1807.
The present title is simple Code Civil.
CODE CIVIL: a model of representative political method.

A city statute provided that no one should sell wine at retail
and a certain dealer used to sell to a customer as cask or
two casks or a barrel of wine, and then the buyers took
delivery in flask and jugs of various sized.
ISSUE: WON that dealer violated the city statute. NO.
RATIO: a barrel is gross measure. Hence, a person selling

by the barrel is not selling at retail. The fact that this party
measured it out to his customers in retail quantities is
immaterial, for the statute speaks only of the sale.
They had a large and lucrative practice in

giving opinions.
The entire bench and bar of France took part: scores of

professional meetings were held, hundreds of reports
were filled; the drafts were debated in successive
stages in various legislative bodies.
The printed proceedings on the codes fill 40 volumes.
NAPOLEON (32) dominated the debates on the draft of
the code in the Council of State and prepared himself or
the occasion by reading law-books.
It is a neatly arranged, systematic work. It has a very
short preliminary title, which is the remains on an entire
book of 6 titles embodying doctrinal opinions or
philosophical assertions in the original draft.
o Finally, the code purported to be a complete
statement of the civil law and was to abrogate
entirely all the pre-existing legal systems.
Meanwhile, by the third century after Irnerius, Italys

star of leadership in Roman law was waning and
Page 9 | Bantay
There
are
two
standard
commentaries
(commentarios) on the civil code, possibly of equal
value:
1) MANRESA: a justice of the SC and a
member of the Code Commission, has
published 12 edition with the collaboration of
various lawyers.
2) SCEAVOLAs Civil Code is an even more
extensive commentary.
o Roman private law, as modified by national or local
family customs or land customs and by modern
legislations, survived in substiantially all the
European countries which formed part either of the
ancient or of the medieval Roman Empire.
(8) CELTIC LEGAL SYSTEM:
o Falls into three periods:
1) Period of political independence: to Julius
Caezars conquest of Gaul and Britain.
FIRST ROMAN INVASION: Celts

religion then in vogue was the religion
of the DRUIDS, whose influence
pervaded every department of the
government, and by its power over
the minds of the people, supplied the
imperfection of laws.
DRUIDISM: acknowledged a
god
that
delighted
in
bloodshed; it taught of the
immortality of the soul, and
inculcated the contempt of
danger and death.
The druids decide almost all

disputes, both public and
private.
BREHONS (Druid jurists in Ireland):

the repositories of the customary law.
Their judgments were enforced

by their own magic powers.
DESTRUCTION OF THE DRUIDICAL

SYSTEM: the Romans found no other
way of securing their conquests over
any of the Celtic nations than by
exterminating them.
2) Period of the surviving branches of the Celtic
legal system: the Welsh and the Irish.
Of these two branches, the Irish was

the earliest recorded and most fully
developed.
Came CHRISTIANITY and the

formulation of the written rules of law,
through the efforts of ST. PATHRIC
who came to Ireland about 430 AD.
THE WELSH CODE: was first written down long before

Justinians books were revived in Italy, and it seems purely
Celtic from beginning to end.
Not written down until 500 years later than St. Pathrics
day in Ireland.
3)
Final dissolution of these two.
The Welsh was the first to end.
These two branches of the Celtic

system, after a gradual decline,
perished within a century of each
other.
In both cases, the end came by

force of conquest.
(9) SLAVIC LEGAL SYSTEM: the four principal Slavic
nations that stand out most individually and compactly in
legal history are the Russian, the Serb, the Bohemian (or
Czech) and the Polish.
o The legal evolution of Russia falls into four stages:
th
1) The establishment beginning in the 9
century of a ruling class of independent
princes possessing all the land and
controlling the people on the land.
th
2) The submergence of the country, in the 13
century, by the Mongol conquerors whose
influence gave a new direction to
government.
th
3) The emergence, in the 16 century, of the
absolute rule of the Moscow tsars and the
final enserfment of the mass people.
4) The passing of the old older and the
establishment of communism in 1917.
o Tolstoys definition of the first three stages: rules
established by men, who have control of organized
power and which are enforced against the
recalcitrant by the lash, prison and even murder.
YOROSLAV, the JUST: first traditional lawgiver.

-
This CODE OF YOROSLAV was called Russian Truth,

and it was really drafted or inspired by the Greek
ecclesiastics, for the information of the church courts.
It was modeled on the Roman-Greek law-books of
Constantinople; and the Greek church had already for
three centuries been modifying the native Slav customs
in family and property relations.
KREMLIN: the vast fortress-city and palace.
From a window in the corner of the Throne

Broom a rope hung down, with a basket at
the end, and each the prince might draw up
the basket and read the petitions of
grievance from his subjects.
Even as late of the day of Peter the Great, it

was still a popular custom to go to the
Cathedral of the Archangels.
TITLE OF TSAR: first assumed by Ivan IV (the
Terrible) and his strong character served to fix on
Page 10 | Bantay
Russia until the modern times the principle of

personal absolutism.
TSAR ALEXIS: a constructive mind.
There had been a DUMA, or kings privy

council, which functioned also as a SC.
He was succeeded by PETER THE GREAT.

PETER THE GREAT: the administration of justice
was largely done in the local peasants courts, by
unlearned magistrates, on the basis of custom and
morality.
Most pressing internal problem: the

codification of the ever-increasing mass of
decrees, regulations, and local codes which
had accumulated in the wide Russian
territories.
No finished code or compilation ever

matured.
EMPEROR NICHOLAS: a real legal system arrived for Russia

under him.
-
He was inspired by MICHAEL SPERANSKI who ended

as one of the greatest legislative geniuses of the
century.
o It was his ambition to create a complete legal
system for Russia and he triumphed.
He authorized SPERANSKI to assemble a commission
of jurists.
After six years: SVOD ZAKONOL / collection of laws.
1936 CONSTITUTION: three most essential facts

about it:
1) It is designed to guarantee the socialist
economy: citizens are duty-bound to
safeguard public socialist property.
They can own anything except a

factory or shop or farm on which he
would hire other people to work for
him.
He owns his house and all his

personal belongings.
The socialization is applied only to

what are called the BASIC MEANS
OF PRODUCTION.
2) The SUPREME COUNCIL not only is the
legislative authority but is also supreme in
executive and judicial matters, because it
appoints the cabinet and the SC.
There is a Supreme Court and a

Ministry
of
Justice
but
the
administration of justice presents a
dark picture.
Many people considered dangerous

to the state never saw a court or
prison; they were seized, examined,
and sentenced in secret by the secret
police organization.
3)
CIVIL CODE OF SOVIET RUSSIA: the only

civil code in the world which forms had been
largely emptied of contents, a circumstance
that testified to the small importance of
property (only 435 sections).
o Break-up of the Soviet empire and of the Soviet
Union itself: socialist law was abandoned and free
enterprise was gradually restored.
(10) GERMANIC LEGAL SYSTEM:
o Falls into FOUR STAGES:
a. The PREHISTORIC PERIOD OF VIKINGS:
the sea-rovers of the North and the Goths.
b. LONG PERIOD OF GOTH migration: ended
with the formation of the great Germanic
empire under Charlemagne.
c. FUSION OF RACES and later by the
localization of the law.
d. PERIOD OF TRANSFORMATION BY
ROMAN AND PAPAL LAW.
o Germanic justice, as it emerges into history, is
purely SECULAR.
There was a god or two: THOR (god of Law

and Order) and FORSETE (god of justice).
o But the justice of the whole tribe, as in primitive
Greece and Rome, was DEMOCRATIC.
The settlements of disputes between clans,

was done at the assembly of the people, the
AL-TING, where all the free men, armed,
meet periodically, by a lunar calendar.
The assembly, or TING, took place in the

HILL OF LAWS.
The parties to a dispute having duly

summoned their opponents, pleaded their
cause before the assembly.
LAW SPEAKERS (NYAL or SNORRI):

famed for their knowledge of the technical
procedure and of the tribal traditions,
propounded a decision; and the assembly
would approve or disapprove the proposals
of law-speakers.
The Goths of the east had been making

booty-excursions into Roman regions: they
intermarried with the original Romanized
Celts, absorbing or absorbed into Roman
civilization.
They
displaced
Roman
rule,
establishing their own political system,
and preserving their own legal
traditions.
By the time of Charlemagne (800 AD),

Western Europe was one Germanic
empire.
o FRANKS / freemen: the tribes of Germans who
succeeded in establishing themselves in Gaul,
adopted a system of laws known as the LEX
SALICA or CODE OF THE SALIC FRANKS.
Page 11 | Bantay
It is the first of a series of a dozen such

Germanic tribal codes officially compiled by
royal order.
The difference between the ROMAN and SALIC
laws: attitude toward individual rights and towards
slavery.
The Roman laws were designed for the good

of the state as a whole, while the laws of the
TEUTONS gave great attention to securing
justice for the individual.
Even slaves were to some extent

considered, for they were permitted to live in
their own houses and only a portion of their
earning or produce went to their masters.
The Code, or Edict, of the LOMABRDS was the
nearest of kin to that of the Saxons: the postmodern idea of a trust has been traced to a peculiar
expedient first seen in Lombard Law.
SPAIN: the laws of the two peoples, Goths and
Romans, were amalgated in a single compilation,
the FORUM JUDICUM (FUERO JUZGO).
EMPEROR MAXIMILLIAN: established the Imperial Chamber

of Justice, as a central court of appeal, and provided that onehalf of its sixteen judges should always be leaned doctors of
the new Roman law.
CHARLEMAGNE: master of the Germanic world a great

organizer and civilizer, instituting the first official system of
written education for his people in their new life, revising the
earlier codes of the various peoples under him, and adapting
the old democratic popular assembly to the difficult role of a
council or parliament in what was not a royal autocracy.
-
CAPITULARIES:
one
of
Charlemagnes
first
parliamentary decrees, established a system of sending
his person envoys on circuit to inspect the course of
justice (AJUSTITIAS FACIENDAS).
o This method of his served later to develop the
Anglican institution of trial by jury.
His temporary empire has soon broke up into hundreds
of fragments: each feudal lord had the power of justice;
the powers differed only in degree the high (had the
power to impose the death penalty), the middle, and the
law.
o Each region administered, developed and
recorded its own local laws and customs
independently, in local codes.
FOURTH PERIOD: the Germanic system

disappears by transfusion into another and new
one.
What happened was that, alongside of it, for

tree centuries past or more, there had been
growing up three other legal systems: the
MARITIM LAW, the UNIVERSAL CHURCH
LAW, and the UNIVERSAL ROMAN LAW
all of them independent of any race or
territory.
Last two: most extensive and influential.
Page 12 | Bantay
JAPANESE LEGAL SYSTEM: Japan had for at least a

thousand years been a MILITARY STATE.
-
In practice, if not in theory, the army had always been

the state itself a totalitarian state obsessed by what
it conceived as a divine and imperial mission to conquer
East Asia.
Following its unconditional surrender to the Allies might
in 1945, Japan has been placed under the supervision
of an administrative commission set up by the Allies with
the end in view; among others, of democratizing Japan.
o The Emperor has been allowed to remain
SYMBOLIC HEAD OF THE NATION.
JUSHICHI KEMPO or SEVENTEEN MAXIMS: of the royal

prince-regent Umayado, afterwards known as Shotoku Taishi
(or, Prince of Saintly Morals) for his leadership in Buddhism,
and as Togoto, mimi (or, Master Prince of the Law) for his
leadership in justice.
-
1)
2)
JO YEI SHIKIMOKU or ORDINACE OF THE PERIOD JO YEI:

a political code promulgated in 1232 AD.
-
First laws promulgated in the Japanese syllabic writing.

50 paragraphs.
Contained the embryo of a new legal growth.
MAIN PURPOSE: to regulate the new military-feudal

regime; and it contained few rules touching private
rights.
3)
THIRD PERIOD:
o REGENT TOKUGAWA IYEYASU: the nation
reached a permanent state of political
equilibrium, economic prosperity and social quiet.
Provided within its own extensive domains

a model of administration for the fiefs of
the greater semi-independent barons.
Three centuries: enjoyed complete peace,

internal and external.
TOKUGAWA SUPREME COURT OF YEDO: given federal

jurisdiction for suits between parties from different provinces.
-
First constructive pronouncement of law (604AD).

Like the Ten Commandments of the Hebrews, are
essentially not rules of law, but a short code of political
and social morality Politically they foreshadowed the
consolidation of the new territories under a single royal
power.
Socially,
they
represented
the
adoption
of
Confucianism.
FIRST PERIOD: growth of great feudal families and the

implacable quarrels between them.
o Civil war was virtually continuous.
o The rule of the intellectuals at the palace in the
capital was finally shattered by the growing
power of the rich military BARONS.
o NATIONAL SOVEREIGNTY left in the person
of the EMPEROR of Kyoto, the western capital.
o COMPLETE POLITICAL POWER vested in
the REGENCY, based on military feudal tenure.
SECOND PERIOD:
o MINAMOTO YORITOMO: caused himself to be
named Military Regent (SHOGUN).
Created the MONJUSHO, or Office of

Inquiry and Decision, essentially a court of
justice.
o HOJO YASUTOKI: succeeded Yoritomo.
Ordained that the first 15 days of each

month be given up to justice.
A suitor struck a bell and his petition was

at once attended to.
4)
Certain confirmatory jurisdiction was reserved for death

sentences imposed on a vassal in the barons court for
political offenses.
Barons often consulted the Tokugawa Court with a view
to uniformity of law.
FOURTH PERIOD: when the long international

seclusion of Japan was broken.
o Commodore Perry came with his AMERICAN
FLEET and demanded rights of trading.
o Other nations followed.
o Japanese gladly conceded to the foreign nations
the power and duty of extra-territoriality i.e.,
jurisdiction over the foreign nationals, as the price
of refusing general rights of settlement
throughout the land.
o Meanwhile, powerful semi-dependent barons
seized the opportunity to rebel, denouncing the
Regency for its subservience to the foreign
nations.
Two great families or clans, the

SATSUMAS and CHOSHUS, which had
long been rivals of the Tokugawa,
combined to establish a new order.
They abolished the Shogunate, and

resurrected the emperor as the supreme
embodiment of power.
MUTSIHITO: the new emperor who just ascended to the

throne in 1868.
-
He became known as MEIJI.

He was reinstated to authority and signed a Charter oath.
o This event was the great Meiji Restoration a
cardinal event in history.
1889: written constitution.
COUNT ITO: ranks as Japans greatest stateman of the
Page 13 | Bantay
last generation.
2)
3)
ANGLO-AMERICAN LEGAL SYSTEM:

A.
COMMON LAW IN ENGLAND:

o 55BC: Roman invasion, who found it inhabited by
a Celtic people known as BRITONS (for nearly
400 years).
o 410 AD: Roman legions withdrew, leaving the
Britons weak and broken in spirit.
o 440 AD: Saxons, Angles, Jutes invaded the
country, and these barbarians carried on their
wars of conquest against the Britons (for a
century).
They drove the Britons from the more

fertile parts of the country.
Towns built by Romans were destroyed.

o 827 AD: EGBERT, King of Wessex, became the
ruler of the entire country which received the
name of ANGELEYN, or ANGLELAND
modern name: ENGLAND.
o 1016-1042: Danish sovereignty.
o 1066: WILLIAM defeated and killed Harold, the
last of the Anglo-Saxon kings.
There were no distinct juridical tribunals,

and no single system of law existed.
HEAD OF THE NATION: KING overlord

to a number of petty principalities.
SHIRES: governed by chieftains who had

taken the title of ealdorman.
o WILLIAM of NORMANDY: the foundations of the
Common Law were laid.
o HENRY I: formative period of the Common Law
may be said to have been ushered in.
Saw the evolution of the royal courts

whose judgment began to build up the
Common Law, and the grown of procedure
characterized by use of system of writs,
the introduction of inquest as a mode of
trial, the beginning of written pleadings
and advocacy.
CHARTER OF 1215.
COMMON LAW: the kings judges in administering justice

professed to apply to Custom of the Realm.
-
He did not hear them himself assigned to such

members of the CURIA.
The kings duty of doing justice between subject and
subject was thus in part performed by sending
commissions of justices on tour, throughout the country.
1178: creation of a permanent justice court.
The closest advisers of the monarch the curia regis
of the Kings council encouraged the establishment of
three separate royal courts which sat at Westminster:
1) COURT OF EXCHEQUER: concerned with
cases affecting the royal revenue, but which also
The kings judges built up a uniform system of law

enforced throughout the kingdom, and because its
administration was GENERAL rather than local, that
term was applied.
The creation of royal officials in the exercise of authority
derived from the king.
WRIT: method by which litigation was drawn into royal
tribunals.
o CHARACTERISTIC: it was an order in the kings
name either to the sheriff to bring a person before
the court, venire facias, or to summon such
persons, summoneas, or else it was an order to
the party accused or complained against to
appear.
o Causes were drawn to royal courts.
1272-1307: EDWARD I: the number of petitions

became so great that an ordinance was issued
directing the Chancellor to deal with the greater
number of them.
This was the starting point of the

EQUITABLE JURISDICTION of the
Chancellor, whence developed that
immense body of rules known as EQUITY.
COURT OF CHANCERY: it is the source

of equity law which saved common law.
SYSTEM OF EQUITY: the result of the inability, and to a

limited extent the unwillingness, of the common-law courts to
entertain and give relief in every case, and thus meet all the
requirements of justice.
-
KINGS FUNCTION: the task of doing justice and maintaining

peace was still the kings personal and characteristic function.
had a limited civil jurisdiction.

THE COURT OF KINGS BENCH: dealt with both
civil and criminal cases in which the King had an
interest.
THE COURT OF COMMON PLEASE: to hear
civil cases brought by one individual against
another.
The common-law courts were at this time limited very

strictly in their jurisdiction.
Certain forms of action were in use, but unless a
persons wrong was of such a nature that one of these
actions applied to it, the courts were powerless to grant
a remedy.
The CHANCERY became a recognized forum for the
relief of litigants and the correction of legal abuses.
By the end of the reign of Henry V (1413-1422), the
Chancery was one of the established courts of the
realm.
EXAMPLE: relating to trusts.
EQUITY was always a gloss on the Common Law it
always presumed the existence of the Common Law
and simply supplemented it where necessary.
Page 14 | Bantay
NEW RIGHTS
EQUITY
OF
REDEMPTION:
enables
a
borrower to retain
the
property
which was the
security for the
loan, even where
there
was
a
default under the
strict terms of the
mortgage deed.
NEW REMEDIES
INJUNCTION: to
prevent a party
from acting in
breach of his
legal obligations.
DECREE
OF
SPECIFIC
PERFORMANCE:
used to order a
party to carry out
his side of the
contract.
RECTIFICATION,
TO RESCIND.
NEW
PROCEDURES
SUBPOENA: to
order a witness to
attend to have
them
examined
and
crossexamined orally,
to require relevant
documents to be
produced to insist
on
relevant
questions being
answers.
SANCTION:
CONTEMPT
court.
SUPREME COURT OF JUDICATURE ACTS (1873-1875):

reorganized the existing court structures completely, and in the
process, formally brought together the Common Law courts
and the Courts of Chancery.
-
of
-
Another classification:
EXCLUSIVE
CONCURRENT
AUXILIARY
-
Equity recognized
actions, as in
trusts
and
mortgages, where
the Common Law
would provide no
remedy.
Equity would add

to the remedies
provided by the
Common Law, as
by
the
introduction of the
jurisdiction
and
the decree of the
specific
performance.
Equity employed
a more flexible
procedure
than
the Common law.
Emphasized the ways in which Equity can be seen to be

related to, but different from Common Law.
MAXIMS OF EQUITY: being based in its origins on

fairness and natural justice:
(1) He who comes to Equity must come with clean
hands.
(2) Equity will not suffer a wrong to be without
remedy.
(3) Delay defeats Equity.
(4) Equity looks to the intent rather than to the form.
OPPOSITION: the Common Law courts were very
jealous of the growing influence and popularity of their
great rival, and a struggle often bitter was carried on
between them for over two hundred years.
o Court of Chancery triumphed in the reign of
JAMES I when the king upheld the power of
chancery to prevent by injunction the
enforcement of a judgment obtained in a
Common Law court.
COMMON LAW (3) + COURTS OF CHANCERY (1) +

PROBATE (1)
Placed on a statutory basis the old rule that where
Common Law and Equity conflict, Equity shall prevail.
At the same time, it gave power to all the courts to
administer the principles of Common Law and Equity
and to grant the remedies of both, as circumstances in a
case demanded.
By bringing the two systems together administratively,
and allowing the High Court judge to exercise the
principles, procedures and remedies of Common Law
and Equity in a single case in the one court, it seemed
to many people that the two systems had merged.
Consolidated in the SUPREME COURT ACT 1981.
CRIMINAL APPEAL ACT: established the Court of
Criminal Appeal to provide for the first time a general
right of appeal for persons convicted and sentenced in
indictable criminal cases.
o The Court of Criminal Appeal became the Court
of Appeal (Criminal Division) by the Criminal
Appeal Act of 1966.
ADMINISTRATION OF JUSTICCE ACT OF 1960: this
Act enabled an appeal in a case of general public
importance to be taken to the House of Lords if the
divisional court grants a certificate to that effect and
leave is obtained from the divisional court or the appeal
committee of the House of Lords.
ADMINISTRATION JUSTICE ACT OF 1970: created a
Family Division of the High Court and amended the
jurisdiction of the Queens Bench and Chancery
Divisions redistributing the functions of the former
Probate Divorce and Admiralty Division.
KING JOHN THE CHARTER of 1215: contained the provision:

No freeman shall be taken and imprisoned or disseized or
exiled or in any way destroyed, nor shall we go upon him nor
send upon him except by the lawful judgment of his peers and
by the law of the land.
-
This provision was seized upon in the 1600s during a

struggle against the crown, chiefly by that legal giant Sir
EDWARD COKE, as result of which the Charter to
which the term MAGNA CARTA is now applied.
o A symbol of civil liberties.
o He was Attorney-General of England from 1594
to 1606, Chief Justice of the Common Pleas from
1606 to 1613, and Lord Chief Justice of the Kings
Bench from 1613 to 1616.
o His statements are a point of departure for the
Common Law from the seventeenth century on.
o He created for later generations not only the
myth of Magna Carta but the myth of the
Common Law as a complete system locked in
the breasts of the judges, who by a mystical but
not specified process declare the law without
Page 15 | Bantay
making it.
o THE INSTITUTES.
LITTLETONs ON TENURES: classified and
examined all forms of and holding, put logic and order
into their complication and with particular zest noted the
subtleties and the difference in the relations involved.
o It is a technical book, unintelligible to persons not
members of a highly trained profession, and one
may add that the members of that profession
were extremely proud of the unintelligibility of
their language.
great world systems of law.

-
GREAT NAMES IN THE LEGAL LITERATURE:
FRANCIS BACON: Lord Chancellor in 1618.

-
He was great both as a jurist and as a philosopher.

He was a profound student of Roman Law, and he urged
Queen Elizabeth to codify English law, holding up to her
the illustrious example of Justinian who codified Roman
laws from infinite volumes and much repugnancy into
one competent and uniform corps of laws.
-
JOHN SELDEN: celebrated both as a lawyer and a statesman.

-
He was a voluminous writer on many subjects. ln 1635,

he published his MARE CLAUSUM, Among his other
His Writings show a profound knowledge not only of
Roman Law but also of International Law.
The chief legal events of this period are:

(1) Such epoch-making constitutional developments
as the inauguration of the sovereignty of
Parliament and its transformation into a
democratic body, the establishment of the
doctrines of the supremacy of the law,
independence of the judiciary and inviolability of
civil liberties and the development of the famous
writ of habeas corpus;
(2) The incorporation of the Law Merchant into the
Common Law;
(3) The establishment of stare decisis as a definite
rule;
(4) The appearance of law reports;
(5) The reorganization of the judicial systern;
(6) Procedural developments;
(7) The organization of the law practitioners into a
dual system;
(8) The appearance of other great legal figures who
exercised a gr at influence in the development of
the Common Law;
(9) The cosmopolitanization and expansion of this
system; and
(10) The beginning of the codification movement.
This period saw the establishment of the sovereignty of
Parliament vis--vis the crown, with the House of
Commons emerging as the dominant institution of the
nation.
o The sovereignty of Parliament had as its
necessary corollary the subordination of the king
and the removal of his interference with the
ordinary law of the land as administered by the
common-law courts.
o Only parliament might now alter existing law by
its process of amendment.
o WHOLE DOCTRINE OF THE SUPREMACY OF
LAW or THE RULE OF LAW.
MATTHEW HALE: one of the greatest and wisest judges ever

sat upon the English bench.
-
Hale, while contending that neither the Canon Law nor

the Civil Law have any obligation as laws Within the
kingdom save to the extent that they have been
received and admitted by us, yet acknowledges the
influence of the Civil Law in various courts of England
other than the courts of Common Law.
th
A rivalry between the Common Law and the

Roman or Civil Law.
Nevertheless, the Common Law did not

succumb; it asserted its supremacy in the
realm of England. Why? The answer to
this is found mainly in two ideas:
1) National patriotism.
2) Strong legal profession practicing a
unified common law.
th
17 to 19 CENTURY: witnessed the full flowering of the

Common Law and the beginning of its career as one of the
WRIT OF HABEAS CORPUS: began to be used as we now

know it, to determine the validity of an arrest by persons
claiming to act by public authority and it thus became, as it has
ever since been, the chief means of protecting personal liberty
the highest remedy in law as Selden said, for any man that is
imprisoned.
DOCTRINE OF STARE DECISIS: supposed to

be the basis upon which-the whole elaborate
structure of the Common Law has been built.
WILLIAM MURRAY: the founder of the Commercial Law of

England.
WILLIAM BLACKSTONE: Mansfields protg.
Page 16 | Bantay
B.
The full lectures were published a four-volume treatise

called Commentaries on the Laws of England, the last
great landmark of the Common Law and perhaps the
most celebrated legal textbook ever written.
o English commerce had become cosmopolitan.

COMMON LAW IN THE UNITED STATES:
o 1774: a Continental Congress, as representatives
of the people of the colonies, declared their
independence from England.
o When colonies renounced their allegiance to the
British government and passed into states, the
law became the fundamental jurisprudence of the
states so far as it was adapted to their conditions.
EXCEPTION: State of Louisiana.
BLACKSTONE COMMENTARIES: became a sort of gospel

upon the law for all American judges, and law students.
-
No other law book ever occupied an equal place in the

respect and veneration of thousands of law readers on
this side of the Atlantic.
JOHN MARSHALL: CH of the US SC from 1801 to 1835.

-
He was a prolific writer of textbooks.

He wrote on the American Constitution, on Bailments,
on Agency, on Equity Jurisdiction and on Conflict of
Laws.
On the last subject, he really created a new terminology.
ln many of them he deliberately -- sometimes
necessarily relied as much on civilians as on Common
Law sources.
JAMES KENT: lectures as Commentaries on American Law.
From the time that Otho the Great (A.D. 961) received
the Imperial crown from the Pope, the Emperors were
considered as the TEMPORAL, the Popes as the
SPIRITUAL, heads of Christendom, as though the
Christians of all states and countries were included in
one grand republic.
INNOCENT III: established the powers of the Popedom on a

settled basis, a positive acknowledgment of the papal
supremacy, or the right principalitier et finaliter to confer the
imperial crown.
DECRETUM OF GRATIAN: creator of Canon law and an

independent system.
-
OLIVER WENDELL HOLMES: most eminent of modern

federal judges.
He was the great liberal on the bench, usually in the
minority, but of vast authority even among those who
most vigorously opposed his views.
The popes had begun to acquire a temporal authority

under Pepin le Bref and Charlemagne, from the
donations of territory made by those princes, and they
were now gradually extending spiritual jurisdiction over
all the Christian kingdoms.
Fixed their chief attention on spiritual concerns.
POPE NICHOLAS I (589 AD): proclaimed to the whole world

his paramount judgment in appeal from the sentences of all
spiritual judicatories; his power of assembling councils of the
Church, and of regulating it by the canons of those councils;
the right of exercising his authority by legates in all the
kingdoms of Europe, and the control of the Pope over all
princes and governors.
The most influential American book on legal history or

philosophy is the COMMON LAW by Oliver Wendell
Holmes, whose theories and constructions were
extensively accepted in England as well as in the United
States.
CATHOLIC (PAPAL) LEGAL SYSTEM AND THE CANON

LAW
He was the first to proclaim the DOCTRINE OF

JUDICIAL SUPREMACY which raised the U.S.
Supreme Court from weakness to strength, from public
contempt to awe.
JOSEPH STOREY: Marshalls contemporary.

-
Where the legislation and decisions of the Popes, after

accumulating for seven centuries in thousands of
separate decrees, rescripts, bulls, and councilresolutions, were first systematically digested.
By an obscure monk, named Gratian, at the University
of Bologna.
Became the manual of theology.
HIS AIM: to produce a work in which all real or apparent
contradictions between customs and regulations in
vogue in the Church should be removed or explained.
o This he secured by exclusion and by comments,
called the dicta Gratiani, sayings of Gratian.
Divided into three parts:
(1) DICTINCTIONES: treats of the sources of canon
law councils and the mode of their convention the
Page 17 | Bantay
authority of decretals, the election of the Roman

pontiff the election and consecration of bishops,
the papal prerogative, papal legates, the
ordination of the clergy, clerical celibacy and
kindred topic.
(2) THIRTY-SIX
SECTIONS
OR
CAUSAE:
discusses different questions of procedure, such
as the ordination and trial of bishops and the
lower clergy excommunication, simony clerical
and church property, marriage, heresy, magic
and penance.
(3) DEVOTED TO THE SACRAMENTS OF THE
EUCHARIST AND BAPTISM AND THE
CONSECRATION OF CHURCHES.
Canon law now began to be taught in the newly arisen

universities, (alongside of the Roman law of Justinian;
and the degree of J .U.D. (juris utriusque doctor) came
into use as signifying a master who had compassed
both branches of law.
JOHANNES ANDREAE: one of the most eminent.

-
So well-beloved in Bologna that when the University by

an ordinance forbade any member of the University to
become godfather to any family of Bologna citizens, it
made a special exception in favor of Andreae and all his
descendants forever.
POPE INNOCENT III (1198 AD): in his time, Roman church

claimed and possessed supreme temporal political power over
the entire Christian world. Rome was once more the mistress
of Europe, and kings were its vassals.
-
Its clergy were immune from the criminal justice of the

state.
Its legislation covered the whole of human existence
from the cradle to the grave; it was upheld by penalties
that neither the proudest monarch nor the humblest
peasant could escape; and it was administered by a
supreme world-judge responsible to no earthly superior
for his action.
The canon law became the legal buttress of the papal

theocracy and remained the ruling code till the
Reformation.
The science of canon law looks back to Gratian as its
father; and Bologna was the chief center for its study.
Although works on the subjects were produced in other
lands, Italy through her universities, was far in the lead
The canon law attempted the task of legislating in detail

for all phases of human life clerical, ecclesiastical,
social, domestic from the cradle to the grave by the
sacramental decision of the priesthood.
o It invaded the realm of the common law and
threatened to completely set it aside.
o The Church had not only its own code and its
specifically religious penalties, but also its own
prisons.
SANCTONS: to the devilish principle of ecclesiastical
compulsion, declaring that physical force is to be used
to coerce ecclesiastical dissidents.
o It justified wars against the enemies of religion
and the persecution of heretics.
The temporal jurisdiction of the papal courts was in time
abolished by the various national legislatures.
th
By the close of the 19 century, the huge mass of papal
church-law stood in the need of a thorough restatement.
CODEX JURIS CONONICI: this work is not a compilation, but

a genuine codification.
-
CANON LAW: it is embodied in a series of collections

containing enactments of councils and papal descretals,
beginning with the collection of Gratian in the twelfth century
and ending with the decretals of John XXII in the fourteenth
century.
in the fifteenth century.

The conception of a distinct and superior diving law
existed from the beginning.
o The formulation of a written code followed the
meeting of Christian synods and their regulations.
o As the jurisdiction of the hierarchy and the
institution of the medieval papacy were
developed, this legislation came to include civil
obligations and all civil penalties except the death
penalty.
o The Church encroached more and more upon the
jurisdiction of the civil court.
Its text is in lucid latin -- the only near-universal

language.
It was not long after the Second World War that there
was a very strong feeling both in scholarly circles and
especially amongst pastors of souls, that there was a
need to bring the 1917 Code up to date and to adapt it
to the changed circumstances of the world.
On January 25, 1983, Pope John Paul II promulgated

the present Code of Canon Law as it has been compiled
and reviewed to have the force of laws for the whole
Latin Church.
MOHAMMEDAN LEGAL SYSTEM: based on a militant

religion Islam founded about 600 AD by MOHAMMED (or
Mahomet), the best mind of his age.
-
ISLAM: meaning submission to one God.

o Aspired to be a comprehensive system of human
life and social order religion, morality, politics,
and law, all founded on revelation.
Page 18 | Bantay
CENTRAL THOUGHT: there is no God but the true

God and Mahomet is his prophet.
Mahomet's entire early propaganda was one of
persuasion; but after his arrival in Medina he preached
the sword not only for defense but for the spread of the
faith.
o His cry was: War against infidels -- Conversion
or death.
SOURCES OF ISLAMIC LAW:
(1) The KORAN or the word of God, written down by
Mohammed.
(2) The SAYINGS and CONDUCT of Mohammed, as
preserved in tradition.
(3) The TREATIES OF JURISTS, elaborately
developing from those fundamentals the legal
rules applicable to all the affairs of life.
o
o
o
o
KORAN: where the legal system of Islam is founded on.

-
It contains all the revelations of Mahomet.

The literal meaning of the word is the book which ought
to be read.
There are one hundred and fourteen divisions or
chapters.
The book is somewhat shorter than the New Testament
and the contents are varied.
There are civil laws and social provisions, and promises
regarding future reward and punishment.
The law, or SHARIAH is a part of the religion, not a
separate thing.
o To the true Muslim, all other laws are but
temporary and human.
ZAID IBN ALI: earliest legal treatise.
THE MAIN LEGAL TRADITIONS OF THE WORLD

Most Western comparativists distinguish three large groups of
legal systems CIVIL LAW, COMMON LAW and SOCIALIST
LAW.
-
I.
But it should be pointed out immediately that this

trichotomous scheme of classification, though useful as
a rough orientation, does not exhaust the rich variety of
laws one finds in the modern world.
o Especially in Asia and Africa, there are several
legal systems which, although in some ways
connected with one or more of the principal
groups, retain important elements of nonEuropean origin.
CIVIL LAW TRADITION: traced back to the TWELVE
th
TABLES of the Republic of Rome in 5 century BC.
o In its origins, it is the law of the city of Rome the
law applied to a citizen (in Latin, civis) of Rome
as opposed to the law applied to a non-citizen.
o The expression civil law, in Latin ius civilis,
literally means the law of the citizens of Rome.
In Roman Law, civil law or ius civile, primarily

designated those parts of the Roman law whose
applicability was restricted to citizens of Rome.
The parts of Roman law which were also
applicable to foreigners were termed ius gentium.
VULGARIZED ROMAN LAW: quick growth of the
Germanic influence.
CORPUS IURIS CIVILIS: an articulation and
reformulation of Roman Law.
At the end of the eleventh century the University
of Bologna in Italy started teaching Roman law,
more specifically the CORPUS JURIS CIVILIS.
This was at first a purely intellectual

endeavor since
Roman law was no longer the law

anywhere in Western Europe.
This marked the beginning of what would

later be known as the resurgence of
Roman law.
It became the ius commune (the common

law) of continental Europe.
TWO MAIN CIVIL LAW MODELS:
FRENCH CIVIL CODE 1804
GERMAN CIVIL CODE 1896
Influenced Latin countries

both in Europe and in
America and former French,
Spanish and Dutch colonies
in Africa, the Middle East and
Asia (the Philippines).
Influenced the Australian and

Swiss Codes and many
Eastern European countries
before Soviet occupation; also
in Japan and Korea.
II.
COMMON LAW TRADITION: the English Common Law

developed independently and is a legal system of its
own, not based on Roman Canon Law.
o WILLIAM THE CONQUEROR: had earlier
established royal courts at Westminster.
Their
limited
jurisdiction
eventually
expanded easing out the local courts then
existing.
The decisions of the royal courts became

the law common to the whole kingdom, the
common law.
o Creation of royal officials in the exercise of
authority derived from the kin.
o SOURCE: previous court divisions.
The main traditional source of the common

law is therefore not legislation but cases.
When the common law evolved into an

unfair set of rigid and formal procedural
rules, the subjects petitioned the King.
With so many petitioners, the King created

the Court of Chancery which could grant a
discretionary relief in equity to correct the
common law.
Page 19 | Bantay
The decision of this court gave birth to a

body of law called equity which is also
based on previous decisions.
Petitioners
were
referred
to
the
Chancellor: these petitions were the result
of the inability, and to a limited extent, the
unwillingness of the common law courts to
entertain and give relief in every case, and
thus meet all the requirements of justice.
o The US imposed parts of the common law on its
entrusted territories such as the Philippines.
The American impact upon the law of the

Philippines has been strong and
apparently lasting.
III. THE SOCIALIST LAW TRADITION: FOCUS now
the emphasis is on features related to extra-juridical
factors, such as the socio-economic organization,
political structure and ideology.
o Refers to legal systems of those states that have
socialized the means of production, expanded
the role of the state or state-affiliated
organizations in all spheres of social life,
established a van-guard party, and adopted
Marxism as their official ideology.
o SOCIALIST LEGAL SYSTEM: core and
periphery.
o Break-up of the Soviet empire and the Soviet
Union itself, the democratization of Eastern
Europe and the unification of Germany: socialist
law is being abandoned by most of the countries
in which it formerly prevailed.
Raised the question whether it makes

sense to continue to divide the worlds
legal systems into three major groups.
doctrines
are
cumulative
writings of law professors and
legal experts on what the law
is or should be after
considering statutory or codal
provisions which only gave
broad guidelines for the
solution of actual cases.
These law professors and
legal
experts
play
an
important role in defining the
law.
most of the prestige, not the

law professor.
DISTINCTIONS BETWEEN CIVIL LAW AND COMMON LAW:
CIVIL LAW COUNTRIES
COMMON LAW COUNTRIES
The primary source of law is

legislation through codes and
statutes.
Cases are usually considered

the primary source of law.
Legislation is general from its

inception and in its original
statement.
A
legislative
precept is a prescribed
general rule, one expressed
as such in authoritative form
by the lawmaking body which
is then applied to a particular
case.
Case law is made up of rules

inferred from decisions in past
cases. The movement is from
particular to general.
Emphasis in deciding cases is

given to general concepts,
principles and doctrines of
law. These concepts or
Case law which are rules

gathered
from
previous
decisions are applied to
decide cases. The judge get
Page 20 | Bantay
PHILIPPINE LEGAL SYSTEM

Divided into TEN PERIODS:
(1)
(2)
(3)
(4)
Pre-Spanish period: before 1521.

The Spanish period: 1521 to 1898.
First Philippine Republic (Malolos): short-lived.
The American period: 1898 to 1941 (when George
Dewey defeated in Manila Bay the Spanish fleet under
Admiral Montojo).
(5) Philippine Commonwealth: still under the US.
(6) Second Philippine Republic (Japanese period):
Japanese occupation.
(7) Third Philippine Republic: 1946 to Nov. 21, 1972.
(8) Martial Law Period: Congress was abolished and
presidential decrees promulgate laws.
(9) Provisional
Government
Period:
Provisional
revolutionary period of President Aquino.
(10) Fourth Philippine Republic: when the 1987 Constitution
was ratified to present.
PRE-SPANISH PERIOD:
-
CUSTOMARY
WRITTEN
Handed down orally from

generation to generation and
constituted the bulk of the
laws of the barangay.
Those that the chieftain and

his elders promulgated from
time to time as necessity
arose.
NOBLES
FREEMEN
DEPENDENTS
SLAVES
Consisting of
the
chiefs
and
their
families,
wielded
tremendous
influence in
the barangay
and enjoyed
rights
that
were
not
usually
enjoyed by
the
other
members of
society.
And likewise
dependents
who
had
earned their
freedom.
Those
that
were
doing
service to the
chief or the
freemen
in
payment
of
some debt.
Those that
were
captured in
battle,
temporarily
held by the
conquering
community.
A dependent
acquired
his
low status in
society
by
inheritance, by
failing to pay
his debt, by
purchase,
or
by committing
a crime for
which he was
duly
sentenced.
NOTE: the lines drawn between the classes were not hard; any
member of the social classes could go up or down the social
ladder depending upon the attendant circumstances.
-
BARANGAY: unit of government (30 to 100 families).

DATU: chieftain rules the barangay.
o He had wide powers for he exercised all the
functions of government.
WRITTEN LAWS:
MARAGTAS CODE: a corrupted Visayan word, means Great

Country or Great People.
-
FOUR CLASSES:
He was the executive, the legislator, and the

judge.
o He was, naturally the supreme commander in
times of war.
SOURCE OF LAW: early customs and practices of the
inhabitants of these islands.
It was promulgated by Datu Sumakwel of Panay about

A.D. 1200.
Re: deliberate refusal to work, robbery, when one who
can support a family can get married more than once,
and when a man runs away after having a child.
CODE OF KALANTIAW: written in the year 1433 AD by

Kalantiaw, the third Chief of Panay.
-
Promulgated two centuries after Maragtas.

Transposition of the word Lakan meaning Great
Chief, and Tiaw, a proper name, meaning solon or
wise man.
Contains of 18 sugo or orders.
MUSLIM CODES: The Moslem influence in the juridical

development of the Philippines came from the Indonesian
group by way of the Sulu Archipelago and the Basilan Island.
-
In Mindanao and Palawan, the influence was contained.

FIVE PRINCIPAL SOURCES of the Moslem legal
norms:
(1) KORAN: and the ethics growing out of its
interpretations.
(2) SUNNA: traditions of Islam, which means the
unwritten law; instructions of the prophet
Mohammed.
(3) KIYAS: the deductions based on decisions in
similar or analogous cases or situations.
(4) IDJMA: the general usages of the community
based on the common consciousness regardless
of the written rules growing out of the
interpretations of the Koran and the sunna.
(5) HADITHS: opinions given by the prophet
Page 21 | Bantay
Mohammed.
FIKH: Mohammedan jurisprudence.
LUWARAN: laws of Maguindanao of Mindanao Moros.
o Means selection or selected.
o Nobody seems to know when this code was
made.
CODE OF SULU: a guide for the proper execution of
the duties of office in accordance with the law and rules
of the state.
When the Spaniards conquered the Philippines, they did
not succeed to subdue the Muslims so that their efforts
to impose their legal system on them failed entirely.
FUERO REAL: consisted of four books divided into seventytwo titles containing five hundred fifty-five laws.
-
It treated public law from both the spiritual and secular

points of view.
It also established rules for the regulation of domestic
relations, property rights, wills, descent, administration,
etc.
There are some provisions requiring general
observance of the precepts of the established religion
which emphasized the role of the church in the process
to national unification.
Primary law in some towns and only suppletory law in
those towns which had a special fuero.
SPANISH PERIOD: two kinds of laws which were enforced by

pain in the Philippines during its colonial rule:
1)
SPANISH LAWS: governs Spanish citizens which were

extended to the Philippines by means of royal decrees.
o Spain made applicable to the Philippines her own
laws.
o Spain was Roman territory for six and a half
centuries and it is indeed one of the most
important Roman colonies.
o Spain became a VISIGOTHIC KINGDOM: they
reduced to written form the customary laws:
CODEX EURICI / CODE OF EURIC: was not intended to be

general law for all the inhabitants of Visigothic Spain; rather, it
was meant to apply only to the conquerors.
-
FUERO JUZGO: Castillian term for a general code of laws.
It was, in other words, personal, rather than territorial,

law.
BREVARIUM OF ALARIC: Alaric II formed a commission of

Visigothic scholars with the mission of formulating a body of
laws for the conquered subjects, on the basis of known Roman
law.
LAS SIETE PARTIDAS: were taken largely from the Roman

laws, and were fundamental in the law of Spain and her
colonies.
It was the law for all Spain, binding both the conquering
Germans and the vanquished Hispano-Romans.
It contained twelve books divided into fifty-four titles
comprising 559 laws, and presented the characteristics
of a general body of laws.
Dealt, among other things, with judicial procedure,
marriage, divorce, succession, matters pertaining to
Church, donations, debts and pledges, criminal
offenses, slaves, physicians, foreign merchants, judicial
conduct in the administration of justice, heretics, Jews,
etc.
The compilation mentions the sources which entered

into its formation; namely the natural and international
law concepts of Roman jurists, the canon law of the
Decretum of Gratian, the digests and code of Justinian,
the opinions of the glossators and decretists of Canon
and Roman law, the law of Gothic-Spanish origin, and
the native laws or those of pure Spanish origin.
They did not acquire the force of law; only in 1348
Heralded as the most wonderful production of the
Spanish jurists.
o Here, they have been quoted by the SC
decisions.
LEYES DE TORO: treats of the sources of law, inheritance,

succession, marriage, criminal law, civil procedure, criminal
procedure, persons and family relations, etc.
-
Has a full binding authority and remained in force until

the appearance of the modern codes.
NUEVA RECOPILACION: sought to incorporate and unify the

diverse strands of the Fuero Real, the Partidas, the Ordinance
of Montalvo, the Laws of Toro and other laws.
-
It also contained royal decrees and legislative

enactments up to the time of its preparation.
EXAMPLE: husband as administrator, conjugal assets
at the time of dissolution of the marriage.
NOVISIMA RECOPILACION: PROVISIONS: renewing lease

for one year if no notice to vacate had been given prior to the
expiry sate, prohibition of sublease, adoption.
Page 22 | Bantay
2)
o
LAWS ENACTED IN SPAIN TO SPECIALLY GOVERN
THE COLONIES:
Page 23 | Bantay

7 - The Legal Systems of The World

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THE WORLDS LEGAL SYSTEMS

THE LEGAL SYSTEMS OF THE WORLD: classified into

THOS BASED ON RELIGION

Composed primarily of the

Catholic or Canon law system

Mohammedan system not

(1) EGYPTIAN LEGAL SYSTEM: from the emergence of this

COMPOSITION: 30 supreme judges,

Merged: chief justice signified the kings

Earliest human lawgiver in Egyptian tradition:

Greatest: Harmhab 1100 BC.

TREATY: one of the earliest recorded treaty was

It provided for mutual assistance not only in

Its provisions about extradition reveal the

Finally, the Roman Caezars arrived to strike

SHAMASH (sun-god): god of Law; whose

SUMERIAN URUKAGINA OF LAGASH: the

GUDEA THE JUST: another lawgiver

CODE OF HAMMURABI: contains some three hundred

The earliest known national code in the world.

Textually, it is the most complete and authentic, as well

CODE OF ASSUR (Egypt): a thousand years after

The most advanced ideas in commercial law had

The glories of the Babylonian kingdom made it long

He lost his empire to Cyrus, king of the new

Other new invading races followed; and by a

Abraham, Moses with his brother Aaron,

MOSAIC PERIOD (300 BC): including the

The Hebrew government was what

Justice was at first personally

SOLOMON, son of David: made his

Books of the Pentateuch: Torah or

The government was in theory still a

By this period, the function of justice

In their internal government the

Under the Roman sovereignty, the

The ruler Herod was still

When Jerusalem fell under the

MAIMONIDES: most famous.

By this means, the common customs

within given territories Hebrew language

The Talmud was critically studied and

After that it became mainly local custom,

SCROLL OF THE LAW / TORAH / PRECEPTS OF MOSES:

(4) CHINESE LEGAL SYSTEM: unique distinction it is the

If translation is correct: the written law is

LEGISTS(400-200 BC): repudiated entirely the doctrine of a

Effectively practiced by able statement during the China

CONFUCIUS: his philosophy covers the whole range of

His philosophy rests on a passionate yet rational

CHOW LI / REGULATIONS OF CHOW: the earliest code

GEORGE PADEOUXs explanation: china has believed in the

This order of Nature was not made; it exists and is its

Another notable consequence of the Confucian

The ruler should frame the laws to voice the

Said to have been composed by Tan, Duke of Chow,

After the Burning of the Books, many vicissitudes of

TANG DYNASTY: issued a code of some

Most radical innovation: introduction of an

HINDU SYSTEM: gave rise to two braches BUDDHISM and

MING DYNASTY (1400 AD): the minister Young Lo framed a

This TA TSING LU LI or CODE OF TSING became law

(5) HINDU LEGAL SYSTEM: the Turks and the Mongols ,