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INTRODUCTION TO LAW - AUFSOL

Ocampo, M. / Quiambao, T. / Rojo, K.

LAW IN GENERAL: Minimum requirements of a legal


order
Law 1. Provides for authorization and
- a dynamic force for maintaining recognition of legitimate
social order and preventing chaos authority. (law is enforceable by
in society; not a body of static an authority)
rules to be obeyed but one that is 2. Provides means of resolving
a dynamic process by which rules disputes
are constantly being adopted and 3. Provides mechanisms for
changed to fit the current facilitating interpersonal
problems of our evolving society. relationships (new law =
- binding and enforceable rule in a committee; administrative
society agency)
- piece of legislation Executive: *Reason of the law: prosperity;
execution and implementation; peaceful, social order ,etc
Legislative enactment; Judiciary *Philippines Issue: lack of
resolve actual cases and people enforcing laws
controversies; interpretation and
application of laws
- legal system ( legal body or Validity vs. Efficacy
system of rules: Civil law A law can be valid but not effective
obligation and sales ; taxation Ex. Seatbelt law
law)
- -Authority- no one is above the law Validity of law is Timeless
(ex. Police or law enforcers) Exception: when it is repealed
- -branch of knowledge concerned
with certain rules; a certain kind Constitution social contract
of law (ex. Law that is legal) -Executive E.O., A.O., Local ordinances
Characteristics of law: Legislative R.A.
1. rule of conduct Judiciary one that decides; final and
2. Promulgated by authority executor; G.R. No.
3. Obligatory
4. Of general observance *laws must be in accordance with
constitution;
Common understanding of law Question the constitutionality
1. Legislation Jus Soli law of the place
2. Something laid down and fixed Jus saguinis Law of the blood (mother;
Ash could be law; foundation; father, etc.)
origin of the word law derived form
the norse root lagu CLASSIFICATIONS OF LAW:
3. A rule something that prescribes; 1. Natural Law not a legal system but
normative what should be followed by consists of certain fundamental
society (ex. Thou shall not kill) precepts of life which are discoverable
through divine inspiration and the use of
reason; not by any form of promulgation
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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

but by inward impression upon the 2. Individual or private law regulate


human heart and those rule attained by the relations of the members of a
the light of reason and understanding. community with one another.
-the social contract, which is the Ex. Civil law purely private ends
foundation of every social order; Mercantile law regulates
- it is innate or within yourself; special relations produced by
- no need for authority to say it is a commercial transactions.
law; *SUBSTANTIVE VS. PROCEDURAL
- resonated even way back even
before it is recognized; even if no Substantive creates a right
one will tell you, you will do or Ex. Constitutional law and civil law
follow it. Procedural law - merely provides the
Examples of precepts of natural law: procedure to enforce private rights.
- Righteousness Ex. Remedial law; rules of court
- Justice *MANDATORY VS PERMISSIVE
- Equity
- Fairness Mandatory have to be complied
with, because they are expressive of
2. Positive Law consists of rules of public policy and disobedience is
conduct, promulgated by competent punished either by direct penalties or
authority that regulates human by considering an act or contract
relations. void.
- strict term: a statute created by the
legislature of the state. (ex. New Civil Permissive are those which may be
Code of the Philippines of 1950) deviated from, if the individual so
- Establishes law as a manifestation desires.
of political power - should be an
ethnically neutral instrument. Nature of the law
a. Historical View
- appraises law in the context of the
common consciousness of a group of
people.
* GENRAL VS. INDIVIDUAL (scope or it seeks to answer the questions
content of the law) where did the law come from and
1. General or public law general where did they evolve
application b. Teological/ Philisophical view
Ex. Constitutional law governs which considers the nature of law
relations between human beings as in terms of the moral and rational
citizens of a state and the governing nature of human beings.
power. emphasis on justice and ethics.
Criminal law guarantees the - Telos - end
coercive power of the law so that it - what is the telos or end of the
will be obeyed. law
- - Man being naturally good or
ethical
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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

c. Analytical or Positivist into consideration the prevailing


- law as a conscious rule and norm religion, ethics and morality of the
of the state said society.
- what is the distinctive structure refer to drawing triangle is not
and the content of the law big enough
(ex. Stat con) facets in understanding law:
d. Functional/ sociological view religion/ethics/morality; state;
- considers the law in terms of the society (these are outside the
satisfaction of the conflicting or triangle)
overlapping claims, demands and You cannot take law in a vacuum.
expectations of the people with
the minimum of friction and LAW AND SOCIETY
waste.
- What is the function of the law Theas lecture:
answer: protect the neighbor
e. Realist/ Pragmatic View Rule is a general norm mandating or
- law on the basis on-going guiding a conduct or action in a given
experiences of the people; applied time of situation it prescribes what
objectively activity should or should not be carried
- Is the law applied objectively? out in a specified way. (normative)
f. Policy Science View * Law contains rules: POWER-
- considers law in relation to the CONFERRING RULES WHICH ENABLES
degree of success of a community CERTAIN ACTIVITIES TO BE CARRIED
in achieving certain socio-legal OUT WITH SOME FORM OF LEGAL
values. BACKING AND PROTECTION. Ex. Law of
- How does the law relate to the contracts.
degree of success of a community -A System of Rules is not sufficient by
in achieving social legal values? itself to be an an accurate or adequate
- achieving equality account of law.
ex. Agrarian reform because of Law
greed - is a rule that defines that can or
g. Marxist- Leninist View can not be done.(normative). As
- considers law as the socio-class opposed to what does happen
regulator expressing the state will (factual).
raised to the level of law of the - Law is a system of rules, which
economically dominant class. defines what can or cant be done.
- what or who does the law
protect is it labor? Government? Ex can marry at the age of 18 with
Capitalist-type of government? consent (civil law) and if 17 yrs.
Old even with consent cant.
LEGAL PLURALISM
Eugen Ehrich (1862-1922) NORMATIVE CULTURE
- austrain jusrist who proposed that
law exists side by side with other - mass of rules in society which
factors in society, which may take governs conduct
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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

- FORMS OF NORMATIVE CULTURE: - Law is law bec. It is a law. (ex.


1. Normative system culture Circular argument- why did you do
specific to social order and to that? You just have to follow him
society. (ex. The way that we give bec he said so)
in to the old people. The way that - A good resonate with you; a law
we have extended family - 18 yrs should seem right to a vast
old whether male or female will be majority with people.
kicked out of the house in USA
while in the Phil. It is not like that)
Normative- laying down standards ROUSSEAU
of behavior to which we ought to
conform if the rule affects us. - man is born free yet everywhere
2. Dogma- associotaed or related to he is chains. One thinks himself to
religion ex. After life, one God. be the master of others, and yet
3. Customs- regulates the interaction remains a greater slave than they
or what has been; tradition (ex. (meaning of social contract to
Fiestas,x-mas) him) ex. Employer has
-usage or practice common responsibilities towards his
to many employees
4. Mores - Law is a restriction of rights (ex
- you can get marry at the age of
- idea of morals- associated with 18. You cant marry less than 18)
morals which defines acts which - Every law given rights also limits
are right in relation to one man to them.
another.(ex. Parent to physically - You might think you are free but
discipline child strict parents) actually you have a lot of
- values and behavior that are impediments to freedom. Ex.
accepted by a particular group, Public freedom
culture - While a ruler gives commands he
5. Norms are not necessarily legal is less free than his subjects.
norms are distinguished by legal - Rosseau defines law One way to
norm from non-legal norm. define law is to look at the
a.) The identification of the functions it performs in society.
emitter of the norm KARL LLEWELLYN: Law jobs theory
(where it came from) - law - jobs theory it is a general
b.) The nature of its account of the functions of legal
consequences (ex. if it institutions in social groups of all
is penal there will be kinds.
fines or imprisonment)
ALLOTT 2 main kinds of problem
- noted that a legal system is not addressed by Law jobs theory
necessarily only obeyed because 1. Adjudication of differences
of the physical force lurking means of resolving the
behind them. differences (ex. By the

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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

Judiciary, DOJ, Quasi judicial- 5. Use of law to give effect to


DOLE) certain private arrangements.
2. Providing authority structure- (ex. Provision of law on
constituted and recognized contract oblicon)

Kinds of law jobs- Judiciary and JOHN AUSTIN


Congress
- not all laws are commands but
THEAS LECTURE: procedures (ex. Tax refunds pay
LAW JOBS THEORY tax first)
- every social group has certain - it is a command separate from
basic needs, w/c are catered for society- John Austin
by the social institution of law by - Theory of legal positivism
helping ensure that the group a. The law is command issued by
survives as such by providing for the sovereign
the prevention of disruptive b. Such commands are backed by
disputes within the group. threats of sanctions
should disputes arise among the c. A sovereign is one who is
members of the law must provide habitually obeyed.
means of resolving them. HART
- In his book the concept of law
ROBERT SUMMERS social group must have certain
rules which impose duties upon
-Define law : one way to define law the members of the group
is to look at the functions it concerning standards of behavior.
performs in society - System of rules - HLA HART
- same approach with karl PRIMARY VS. SECONDARY
llewellyns law jobs theory
ROBERT SUMMERS 5 Primary rule
TECHNIQUES OF LAW- Five basic law
techniques of law used to impose duties, obligations
implement social policies: on individuals
- are substantive rules that give you
1. Law is used to remedy rights and duties
grievances 1. criminal, civil, laws of contract,
2. Law is used as a penal real property, and torts
instrument Secondary rule
3. Use of law as an instrument - procedural which sets rules and
with which to promote certain methods employed to obtain ones
defined activities right, in particular, how the courts
4. Use of law for managing are conducted
various governmental public - supports the primary rule in
benefits (ex. Education and developed and complex societies
welfare policies) - PROCEDURAL

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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

1. rule of recognition( who is the - The law itself may not change but
proper authority) its interpretation has
to remedy the problem that - The law is not very clear
there will be no settled MAX WEBER
procedure for resolving doubts 3 types of authority/ identification
as to the nature and authority of authority:
of an apparently legal rule. ( ex.
Constitution) 1. Personal characteristics
charismatic leader; his
2.rule of change personal and individual
to remedy the problem that characteristic
there will be no means of 2. Traditional authority always
changing the rules in been of authority ex.
accordance with changes in Monarchy, tribal communities
the circumstances of the such as elders in tribal
social group. (ex. communities; obedience to
Ammendments and repeals) the leader or regime
3. rule of adjudication
- provides for officials (judges) to 3. Bureaucratic/rational-legal
decide disputes authoritatively.
- To remedy the problem that the - through rules and procedures ex.
primary rules will be inefficiently Elections
administered because their - Most societies have elements of
enforcement will be through more than 1 type
diffuse social pressures within the - Who determines authority?
group. (ex. Rules of court MTC, (summers and Llewellyn) Studies
RTC) in various disciplines show that a
- Hart: a law can not be considered a legal order must provide:
law forever recognition of legitimate authority
(ex. You dont know who to follow),
RONALD DWORKIN means of resolving disputes,
mechanisms for facilitating
- inheritance interpersonal relationships ex.
DURA LEX SED LEX ; VERBA Verbal obligation; no rules on
LEGIS marriage (basic judicial system)

HOLMES EMILE DURKHEIM


The life of the law has not been
logic; it has been experience... The law - What keeps society together?
embodies the story of a nation's If law were suddenly relaxed,it is
development through many centuries, unlikely that society would
and it cannot be dealt with as if it immediately plunge into chaos
contained only the axioms and and disorder(personal discipline)
corollaries of a book of mathematics.

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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

- Emile Durkheims study of 2 - The individual joins a portion of


contracting societies his power with that of his
1. Simple, technologically neighbors
underdeveloped identical - Society, through law, confers
interests of the whole; security as to life
same jobs and goals you - The constitution does not protect
either conform or get out; us from deprivation of life, liberty,
use repressive law; or property
- Only, it requires due process
Gemeinschaft - give a before we can be so deprived
little take a little COMMIT YOURSELF TO SOCIETY
- changing nature of the law such
2. Advanced societies use as:
compensatory laws (object + laws on motor vehicles
is not to punish but to solve +intellectual property
grievances by trying to +nationalization policies of the
restore the aggrieved govt ex grace poe
person to the position he or + laws of adoption
she was in prior to the +laws of trade ex. ASEAN
dispute); different jobs not
towards the same goal; -LAW IS NEVER STATIC
maybe interdependent; -LAW CAN ONLY BE UNDERSTOOD
winner takes it all attitude IN TERMS OF THE SOCIETY IT
or compromise. WORKS IN. INTERPRETAION OF
gesellschaft- winner take LAWS VARIES
all
Function of law: dispute KELSEN
settlement 1. Gemeinschaft and
gesellschaft Just as the essence of the
community constituted by law is
PARSONS most clearly revealed when their
- consensus view of society existence is in question, so it is
- society is a system that maintains that the significance of the basic
social stability and order norm becomes especially clear
when a legal system, instead of
FERNANDEZ being changed by legal means is
replaced by revolutionary means
- Man is fundamental and has a (ex. People power = revolutionary
natural propensity to achieve the government)
good life
- No man can secure this for - understand the essence of the law
himself (you want something when someone tries to change it
more_
- Society springs up as a necessity WHY DO WE OBEY THE LAW?

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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

+ fear of punishment unlawful taking, it attended by


+ belief that the expected action force, violence, intimidation
is the proper one all requisites must be met
+ acceptance of authority otherwise you wont be held liable
-Under ARTICLE 3 OF THE CIVIL CODE:
IGNORANCE OF THE LAW EXCUSES NO
ONE FROM COMPLIANCE THEREWITH- a FULLER
society can survive
FULLERS PROCEDURAL RULES:
LAW AND MORALITY 1. Rules are in place
2. Rules known to all affected
- a societys code of morality 3. No retroactive effect
MORALITY 4. Understandable
- early philosophers believed that 5. Consistent
human law was derived from 6. Not impossible
divine law 7. Not changed frequently
- since gods law constituted the 8. Coincides with administration
absolute criterion of good and evil, Procedural need to comply with
human law was then beyond procedures (notice to the parties)
criticism ex 10 commandments - prior notice, hearing, and
- morality is relatve documentation
DUE PROCESS; you can be deprived
ST. THOMAS AQUINAS but not without due process.
(Fernandez)
- the criterion by which to Substantive: they tell you what you need
determine what is good from what to comply with.
is evil is the criterion of - comply with simple rules
reasonableness. inner voice
- 2 kinds of liability
1. general conditions- FINNIS
2 proposition under the general (they are not good because they are
principle: a.) the holds only taught morally good)
liable only the actual wrong
doer b.) blameworthiness a FINNIS BASIC PRINCIPLES:
persons liability will depend on - knowledge
whether the person maybe said - play
to be morally blameworthy - aesthetic experience
- sociability
- practical reasonableness
2. Specific conditions- it depends - religion
of particular offenses ex. Theft
intent to deprive, unlawful Morality
taking ex. Pick pocket vs. - How it affects law
robbery- intent to deprive, Not all natural; it also
involves humans as well
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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

most people think of - Private immoralities are deterred


morality in terms of sex and by punishment. (must find the
violence. wrongdoers but impossible because you
Cases: *drug abuse and hazing do it in your private abode)

*R. vs. BROWN RONALD DWORKIN


Facts: 6 appellants were convicted of a - moral convictions may be
no. of offenses under the offenses enforced by CRIMINAL LAW.
against the person (ACT 1861) - (it most be so offensive that we
(homosexual; acts of sado-masochistic can get into a consensus; ex.
violence; videotaped) MURDER)
Issue: Whether the law should interfere - not liking it will not make it
in the private affairs of adults who illegal
consent to certain sexual practices - MORALITY IS RELATIVE:
-consent depends on society
-Private morality according to your society
Held: It is not in the public interest that (ex. Divorce: legal in US;
people should try to cause or should illegal in the Phils.)
cause each other bodily harm for no changes overtime- ex. 2015:
good reason which breed and glorify divorce is legal in other
cruelty. states; LGBT can marry
Dissent: Lord Mustille: Consent valid US)
defense RPC Art. 333 Adultery and Art. 334
Lord Devlin: the limits of tolerance( or Concubinage
rather the boundaries of socially
acceptable behavior) change. ; public Adultery married woman; has an affair
debate; believed that it was an with sexual intercourse
unacceptable to distinguish public and
private immorality; society should use Concubinage man brings mistress in
law to no such thing as private conjugal dwelling; sexual intercourse
immorality scandalous circumstance; cohabitate
elsewhere
JOEL FEINBERG When a female gets pregnant, do you
know the mother? YES.
- Utilitarian concept of ethics an actual REASON FOR A HARSHER LAW FOR
philosophy in which the happiness of the ADULTERY: female gets pregnant:
greatest no. of people in the society is mother = knows who the father is; while
considered the greatest good. in the case of the father = cannot
determine whether it is his.
(it cannot offend you if you dont see it)
- if a private item is determined by - Also, to protect the family unit.
threat of punishment to actually search; Some cases:
ex. Doing in the backyard 1:10 -Conjoined twins: Murder with intent
impossiblity to be caught although doctors have the duty to save

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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

Jody, they must also respect the life of Church can criticize the state; it
Mary. should provide moral guidance
(The case went to the high court which State
ordered that the separation should go 1. Do not show preference for any
ahead, and then quickly on to the court religion
of appeal, where judges said they had 2. Cannot appoint army chaplain
been faced with an agonising decision. 3. Public Schools

In the end they came down in favour of CIVIL CODE : ARTICLE: 19, 20, 21
Jodie's right to life. "Mary has always - refer to moral values; catch-all
been fated for early death," said the provisions in the civil code
senior judge, Lord Justice Ward. because the congress knows all of
"Though Mary has the right to life she the possible craziness.
has little right to be alive. - Breach of promise to marry = 1.
Humiliation; 2. Expenses; 3
"She is alive only because, to put it Virginity
bluntly but nonetheless accurately, she
sucks the lifeblood of Jodie and her
parasitic living will soon be the cause of LAW AND ECONOMICS
Jodie ceasing to live.) The logic of law and economics:
Economics is the most advanced of the
- On Censorship social sciences, and the legal system
-MTRCB PG; R- kids cannot see it contains many parallels to and overlaps
-Obscenity black and videos with, the systems that economics have
before- basic guidelines: whether the studied successfully Judge Richard A.
average of contemporary person; Posner, 1989
whether the word depicts unapplicable; * All of us, no matter what age, statute,
lacks serious literacy (what is ok and and so on, we already encounter
not?) economics.
ECONOMICS provides a normative
Caveat: standard for evaluating law and policy;
- Some actions are illegal, though Laws are instruments for achieving
not immoral social goals, and economics predicts
- Ex. Driving without a seatbelt the effects of policies on efficiency.
- Some actions are immoral, though not (you can use economics in passing a
illegal law)
Ex. Premarital sex of single ladies - changing the legal relations governing
society: ECONOMICS AS A TOOL
1987 constitution: - Economics provide systematic
ARTICLE 2, Sec. 6: Separation of Church measures to evaluate behavior.
and State shall be inviolable (it is
untouchable) Government should not PRISONERS DILEMMA: *form of Game
engage itself in the affairs of the church. Theory
Ex. RH LAW; no tax for churches In the traditional version of the game,
the police have arrested two suspects
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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

and are interrogating them in separate transactions costs, an efficient set of


rooms. Each can either confess, thereby inputs and outputs to and from
implicating the other, or keep silent. No production-optimal distribution will be
matter what the other suspect does, selected, regardless of how property
each can improve his own position by rights are divided. - Coase theorem
confessing. If the other confesses, then asserts that when property rights are
one had better do the same to avoid the involved, parties naturally gravitate
especially harsh sentence that awaits a toward the most efficient and mutually
recalcitrant holdout. If the other keeps beneficial outcome.
silent, then one can obtain the favorable analysis suggest that the intervention
treatment accorded a states witness by of law and the allocation of legal duties
confessing. Thus, confession is the and rights to compensation would not
dominant strategy for each. But when affect the final outcome.
both confess, the outcome is worse for Consider a factory, whose smoke
both than when both keep silent causes damage to the laundry hung
outdoors by 5 residents:
see notes for details Eliminate problem: 1. Smoke screen =
150
GAME THEORY: 2. electric dryer = 50 each resident
- Science of strategy; It attempts to on their own
determine mathematically and logically
the actions that players should take to Cost of damages: RESIDENTS (75 per
secure the best outcomes for resident )* 5 = 375
themselves in a wide array of games. Cost of solution: Smoke screen = 150
The games it studies range from chess (all-in)
to child rearing and from tennis to electric dryer = 50 each resident =
takeovers. But the games all share the 250
common feature of interdependence.
That is, the outcome for each - Cheaper solution is to install a
participant depends on the choices smoke screen
(strategies) of all. In so-called zero-sum - If the residents have a better right
games the interests of the players the factory will shell out the
conflict totally, so that one persons money
gain always is anothers loss. More
typical are games with the potential for - But, if the factory has a better
either mutual gain (positive sum) or right, the residents will have to
mutual harm (negative sum), as well as shell out to achieve clean air
some conflict.
- surpasses intuition, just as They will not necessarily come up
science surpasses common sense. with the best solution, depending
on transaction costs.
COASE THEOREM:
- A legal and economic theory that
affirms that where there are complete ACCORDING TO PROPONENTS OF THE
competitive markets with no STUDY OF LAW:
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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

Common law legal rules are in fact - The corporation allows individuals
efficient. an alter-ego to suit their business
Legal rules ought to be efficient. interests.
Legal processes select for - Sole proprietorship individual;
efficient rules Advantage: easy to set-up, Sole
Individuals respond to legal rules control of the company
economically - Disadvantage: no funds to expand;
Common law doctrines promote limited life/ resources; unlimited
efficiency liabilities.
(ex. Neighborhood sari-sari store)
PARETO THEOREM:
- equality; you can make someone Role of the Government:
better off without making Government intervention is seen in
someone worse off. periods marked by highly intrusive laws.
Other periods are of lassiez-faire, with
POLICY ANALYSIS VS. POLITICAL the government playing a passive role.
ECONOMY
LAW AND PROPERTY
- both strands adopt the Things to consider:
assumption that each individual Property: Implicit unequal distribution is
seeks to maximize their prevalent. Generally not equal. There is
preferences. a disparity between the ruling class and
- other people.
Political Economy politicians are
motivated by personal interest Property rights are related to wealth.
- public officials are motivated by - equal distribution among social
subjective interests. classes is permanent but not
equal in fact.
Policy Analysis rejects the general Durkheim: hereditary transmission of
idea: property
*is a systematic evaluation of the - few are allowed to accumulate
technical and political implications of property via succession.
alternatives proposed to solve public (advantageous to children)
problems. Policy analysis refers to both *in the case of Singapore they
the process of assessing policies or cannot acquire real property ;
programs, and the product of that hereditary transmission is not
analysis. allowed (to give everyone the chance
- those who win have greater power. to acquire properties; the disparity
- policy questions: (kapag naiiba na yung between the rich and poor)
mga gusto, not in line na sa goal)
THINGS TO CONSIDER:
- each type of property has
SOLE PROPRIETORSHIP vs. developed a fairly specific
CORPORATION classification

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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

a. personal property things seen Employee has actually no


and carried around choice but to accept
b. real property land: REGISTRY whatever means/ terms the
OF DEEDS employer will give.
c. chooses-in-action intangibles Employee will do anything
but has monetary value; without regards to the terms
INTELLECTUAL PROPERTY of contract.
OFFICE (ex. Patent, Copyright, The employee cannot say no
stocks and trademark) to anybody.

PROPERTY RIGHTS That legal right Argument vs. Renner


which is separate from the thing which - There is now an effective
is the object of that right. separation between ownership of
-Legal right: Property Ownership; property and its effective control.
Property in Possession (the difference is - The managers, not the property
seen in the lease agreement) owners exercise real power (real
Ex. Rentals: A owns; B is renting = A has power = decision of day-to-day
rights of ownership, B has rights of transactions)
possession. (ex. Shareholders controlling
shares)
Thus, several legal relationships may
arise between the property right and the Real Property Original basis of wealth
property object. - immovable, permanent and
virtually indestructible.
KARL RENNER: - Citizens of other countries are not
Private property entitles power and allowed to own real property in the
domination. Philippines.
-Money determines power o 60% Filipino-owned in
corporation and real
WHY PROPERTY MATTERS? property
- He argued that in acapitalist
system, property is transformed (Philippines relies on the land
from a mere title to dispose of registration system)
material objects into a title to
dominate. Intellectual Property Constitutionally
(Private property entitles power protected.
and domination; Money - The Philippines joined WIPO in
determines power) 1980 (for copyright, trademark,
- According to Renner the so-called patent)
freedom to contract or freedom - Copyright right of something that
to negotiate are illusory. can be copied. Ex. Music, movie,
- The worker only chooses his books
master, he has no choice as to - Trademark mark of a trade.
whether or not he wants to work. - Ex. Jollibee - Every single part of
it(letterings, colors, bee) ; logo
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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

- Patent innovation; novel idea; which can be passed down to your


you must create something that heirs) 6% payment only.
nobody thought of before. (with - issues of CARP: not all land is
expiration; after it expires it can ideal in all plots; cooperative-
be used by other persons) owned)
Exception: COCA-COLA no
patent and copyright. LEGAL SYSTEM OF THE WORLD:
Intellectual Property: Kantor-Navarro
Agreement (1993) Classifications:
- to delist the Philippines from the - Ethnic or cultural per country
priority watch list/ blacklist of (focus on greek and roman laws):
countries covered by the Super Greek highly organized society;
301 list under the United States Roman Laws up to now latin
Trade Act. terms
Example: Philippines vs. U.S. - no more society that
blacklisted of several companies strictly follows it, study: survived;
because of greenhills. reworded.
- Religious preferences Catholic
(1995) To have special courts to hear legal system; Mohammedan
Intellectual Property cases.
(1997) R.A. 8293, The Intellectual ETHNIC OR CULTURAL
Property Code of the Philippines was
enacted and made effective on 1. Egyptian legal system:
January 1, 1998 - monarch: Supreme Ruler
For education purposes: - Oldest court record dating to 2500
Fair use- only a portion is copied B.C.
- Treaties: between King Ramses II
Other laws governing property: with the Hittie king Hattushilish III
- pre-nuptil agreements for mutual assistance in external
- Absolute Community of Property attacks as well as internal revolts.
- Legislations regarding forest, - Provided for extradition of political
mining, fishery resources, clean offenders
air, Solid Waste management, etc. - Now gone; Disappeared when the
Recent Problems: Romans defeated Queen Cleopatra
- digital technology : ex. Video- in the battle of Actium
taping; file-haring
- the internet: right to privacy ( ex. 2. Mesopotamian legal System:
Cyber-bullying); evidence - King foundation of justice,
receiving law from divine
CARP ( Comprehensive Agrarian guidance.
Reform Program) - Oldest code text discovered; a
- the agricultural land is given to legislation of Babylon
those who actually work for it; (5 - Code of Hammurabi; a king of
hectares per person is allowed; Babylon was inscribed on a pillar
of black diorite about 8 ft. high.
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INTRODUCTION TO LAW - AUFSOL
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o A national code of a 5. From AD 1600- around the time


legislation; actual code were certain countries tried to
o Scope: crimes, family expand their territories
relations, property (property - time started when nationalism in
law) , commerce Europe prospered
(commercial law) (scope of - forced the Jews to relocate
code of Hammurabi) 4. Chinese Legal System
- King Hammurabi- PN which is the - Oldest surviving system
oldest negotiable instrument - Confusianism Confucius, 500
- now gone; disappeared under greek B.C.
rule around 10 B.C. Chief justice
3. Ethnic ; Hebrew You are only as
good as those
- Their civilization was originally who are under
nomadic & pastoral, then you.
agricultura, and only later - positive law should confine itself to
commercial translating the natural law into
- Developed in 5 well defined stages written form.
(LEGAL SYSTEMS) - Code of Tsing Tsa Tsing Lu Li -
1. Mosaic period, a 1650
theocracy(authority & power o Li annual edicts and
derived from God), pertinent decisions; procedural
people: King Solomon (2 o Lu text which never
women and 1 baby the wisdom changes; code proper;
of God is with him to do substantive
judgment), Moses (10 - Greatest pacifist, why?
commandments), Pentateuch (5 o They have never yet
books known as the Torah or attempted to conquer
ancient law Genesis, Exodus, another territory
leviticus, numbers and Chinese- strong clan and family
deuteronomy structure
2. Classic Sanhedrin( senate
other name is the Great 5. Hindu Legal System:
Synhedrion but acts like the - India dominated at least 6 successive
Supreme court) times by immigrant alien races.
3. Talmudic the Talmud - only the Indo-Aryan (Hindu) developed
(compilations of reports of all a native system of law.
recorded cases and - 2 branches: Buddhism Gautama
commentators 1. Mishna Buddha
codified text 2. Gemara- - Enlightenment
commentaries) - goal: Nirvana peace
4. Medieval treaties and of mind and soul that comes to man
compiled codes are made by after he has overcome three cravings:
the rabbi riches, sensual enjoyment, immorality

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INTRODUCTION TO LAW - AUFSOL
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Brahmanism/ Hinduism - Philip of Macedon father of


Laws of Manu law-book of Brahma- Alexander the Great
Hindu - System of justice, but no system
- predominant in india of law; reactive style of justice
- Manu author of the system; also
a pre-historic deity 7. Roman Legal System:
o Caste- system- division of - considered the most lasting and
classes: Royals; priests; pervading influence.
scholars; tradesmen; - an aristocratic nation controlled by the
untouchables (cannot marry senate.
one from another class; - knowledge of the law limited to
does not mingle with the sacerdotis publicii
other class) ARCHAIC PERIOD - 12 tables written
o Caste system determines code of laws whose key principles were:
his religious social - the household was the key
economic and domestic life institution;
from cradle to grave (men and husband - as head;
- Hindu Code compilation progress eldest son takes over when father
of hindu jurisprudence. dies the females are under the
guardianship of the males)
- marriage was an institution for the
6. Greek Legal System perpetuation of the family
- Developed a secular system of law - civil law marriage gave the
- 8th century B.C. establishment of the husband manus (power) over the
polis - barangay wife and children were subject to
- 6th Century B.C. patria
- Solon Congressman; Law-maker - civil law gave the husband
- one of his first acts was to repeal manus
all the legislations of Dracon, except the - the rights exercised by the pater
laws relating to manslaughter; familias included dominion over
-instituted the greek art of things, powers over members of
ORATORY system means cross- the family, and administration of
examination SACRA
- to think on your own feet. - Pater familias was authorized to
- Jury system; prosecution by a designate through testament a
people person to succeed him as heir.
- 5 and 4th Century B.C. politics
th
(males only)
- Socrates Founded The
Academy; Socratic Method (Q&A)
practiced it on Plato. - under Table IV (12 tables) :
- Plato Republic ideal system Monsters or deformed children
- Aristotle attended the school of may be put to death. Paternal
Socrates with Plato power over children during their
life to imposition.

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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

REPUBLIC PERIOD: YOUTH contracts, etc. Thus, earning the name


- At the peek of its conquest, Rome CIVIL LAW.
(empire) encompassed all nations - Thus, when the Spanish and portugese
- Republic to manage from a conquerors introduced legal systems to
centralized source their colonies, they brought with them
later law was initially developed what remains of Roman Law CIVIL
through Jurists LAW
- later, Emperor Agustus Caesar - When the other Universities picked it
(Caesar was a politician and general up. Roman law became common in
of the late Roman republic, who Continental Europe.
greatly extended the Roman empire (At the end of the 11th Century, the
before seizing power and making University of Bologna in Italy, started
himself dictator of Rome, paving the teaching the CORPUS JURIS CIVILIS)
way for the imperial system.)
- ius or jus means leagal system or right
or law. Roman juristis use it to include
all commands of morality of law.
CLASSICAL PERIOD
- Jus Civile native law of the
- The imperial government became
Romans;
more autocratic
our law amongst
- JURISTS became official advisers
ourselves; Civil law of
- If the jurists would not reach a
Romans
consensus on a question of law,
- Jus Gentium foreign law; set of
resort to majority opinion, if the
rules were put in place to govern
jurists are still divided , then the
relationships with, and between
judge on the case will exercise his
non-romans
discretion.
- For non-Romans, their disputes were
- Legal education became
settled through their own laws.
important, as it became a
- later, recognizing the superiority of the
requirement for government
jus gentium, the ius civile was
employment.
broadened to embrace many of the
- The JUSTINIAN CODIFICATION is
fundamental principles common to legal
confident as the most significant
systems of the nations under Rome.
_____ in the history of Roman law
- When Roman Citizens invoked ius
CORPUS JURIS CIVILIS; CIVILIS
gentium for cases in which the ius civile
JUSTINIAN:
provided no remedy or an inadequate
A. Institutes of Justinian official
one, the new law came to be referred to
elementary textbook on Roman law
as JUS AEQUUM.
for law students; Institutes of Gauis
- Jus Aequum equity; not set in
B. Digests Pandects; excerpts
stone; general principles; the one who
from the works on classical Roman
provoked is the one who pays (depends
Law by 39 jurists.
on the situation)
C. Codex Constitutionem all
- The Roman Law which has survived is
imperial enactments; 10 books
limited to private law Tort, property,
(codification); with repeal of all

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INTRODUCTION TO LAW - AUFSOL
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ordinances excluded. (Their principles to live by; a short code (not


Constitutional (public) law; Civil law) codified) of political and social
D. Novellae Constitutiones Post cooperation
Codican - In 1853 Japans international
- Novels new imperial ordinances seclusion was broken.
or statutes issued after the revised - The barons denounced the government
codex; addendum (Succession; Religious for cooperating with foreigners
and Ecclesiastical law) - 1889 unwritten consitution
- Japan was a military state
8. Celtic Legal System Druidism - In an attempt to rule Asia, it had tried
religion which acknowledges a god that to invade its neighboring countries.
delighted in bloodshed, believed in the - At that time, China maintained a
immortality of the soul; inculcates the tenuous control over Menchuria.
concept of danger and deah; influenced
the government; power and minds of the 12. Anglo-American Legal System
people supplied imperfection of laws. - A. Common Law- from customs and
- Druids are priests who are powerful traditions; Only the king had the power
enchanters to do something; based on previous
- left nothing written. judicial decisions
- Angle Land = England
9. Slavic System notable nations in - William Duke of Normandy became
Slavic legal history are the: Russian, master of England
Serb, Bohemian and the Polish. - Prior to the Norman Conquest :Custom
- Tolstoy rules established is the rule, in which those common
- The Civil Code of the Soviet Russia , customs form part of the law of the land;
adopted in 1922 it is general
- This is due to the relative - The time, the country was divided; king
unimportance of property in the Soviet has set-up his different courts to settle
system. disputes
- Out of the many diverging customs, the
10. Germanic Legal System Purely kings judges build a uniform system of
secular. Their gods included THOR the law enforced throughout the kingdom
god of law COMMON LAW
- As compared to Roman laws, Germanic - As common law is rigid and formal in
laws gave great attention to serving order to grant relief, resorted to
justice for the individual. Even slaves equity.
were allowed to live in their own house, - Equity found itself establishing
and to retain a certain portion of their jurisdiction over matters where the
earnings. common law failed.
- democratic settlement of disputes, Ex. Under Common Law, the only
done within an assembly. remedy for breach of contract was
damages, but under equity, the remedies
11. Japanese Legal System of injunction and specific performance
The 17 maxims of SHOTOKU are not were found.
really rules of law but they are
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INTRODUCTION TO LAW - AUFSOL
Ocampo, M. / Quiambao, T. / Rojo, K.

-The most famous maxim of Equity: POPE considered to be more


1. He who comes in equity must come powerful than kings as he is the
with clean hands; one who advices them.
2. Equity will not suffer a wrong to be - It had its own penalties and prisons
without remedy (for every wrong there - In 1917, the Council of Trent
is a way to make it right); responded to the issue raised by
3. Delay defeats Equity; Protestant reform ( 1 king wanted to
4. Equity looks to the intent rather than divorce his wife, Catholics did not allow,
the form. (laws on speedy trial) so he shifted to Protestantism)
- The most important ______________, dealt
- Both law and equity are part of with marriage law
what is now called the COMMON - On Jan. 25, 1993, Pope John Paul II
LAW TRADITION. Equity prevails. promulgated the present Code of Canon
Law, which has the force of law for the
COMMON LAW VS. CIVIL LAW whole latin church.
Common law principle of Stare - canon law courts own courts; subject
Decisis, when it is not found in the code to catholic practices (canon lawyers
look at previous decisions.; equity practice this field)

- U.S. common law origins 2. Mohammedan


- most states observe common - this legal system was founded in A.D.
law practices except Louisiana Roman 600 by Mohammed (or Mohamet)
Law tradition - It is notable that in A.D. 800 1200 was
- John Marshall Chief Justice considered the Dark Ages of Christian
from 1801-1835; was the first to proclaim Europe. At that time, therefore, the
the DOCTRINE OF JUDICIAL Arabs were the sole vehicle of the
SUPREMACY (interpretation of the worlds active intellectual and artistic
constitution) progress. (Outside of Eastern Asia)

Civil Law there is a written law about Islam Submission of God


it. 3 sources:
1. Koran word of God; written down by
RELIGIOUS SYSTEM: Mohammed
2. Sunrah Sayings and conduct of
1. Catholic Mohammed
- Canon law of the Roman Catholic 3. Treaties of Jurists developed from
Church began to develop alongside those fundamentals the legal rules
Roman belief indigenous law in Europe, applicable to all affairs of life.
after the end of Roman Empire retreat
of ancient Roman Law. The law or Shariah is part of the religion
- It attempted to legislate in detail for all and not separate.
phases of human life (clerical,
ecclesiastical, social, domestic) from COMMON LAW previous decisions form
the cradle to grave. part of the law of the land

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INTRODUCTION TO LAW - AUFSOL
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CIVIL LAW written law

SOCIALIST LAW Everybody is equal


whatever services and goods are to be
divided equally.
- Nobody will have more than the
others;
- They have socialized means of
production and give the state and
expanded role;
Sources of Law:
1. Primary
1.1 Statutory
- Constitution
- Treaties
-Statutes
- Administrative Orders,
regulations, Ordinances
1.2 Case Law stare decisis

2. Secondary supplementary sources


of law
1. Case digests
2. Treatises and Textbooks
3. Bar Reviewer
4. Legal Periodicals
5. Encyclopedia
6. Law Dictionary

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