Mestizo - The Story of the Philippine Legal System

Chapter One - Indigenous Legal Culture

Indigenes -
a) refer to a group of people or homogenous societies identified by self-
ascriptio and ascription by others, who have continuously lived as
organized community on communally bounded and defined territory, and
who have, under claim of ownership since time immemorial, occupied,
possessed and utilized such territories, sharing common bonds of
language, customs, traditions and other distinctive cultural traits, or who
have, through resistance to political, social or cultural inroads of
colonization, non-indigenous religion and cultures, become historically
differentiated from the majority of Filipinos.
b) People who are regarded as indigenous on account of their descent from
the populations which inhabited the country at the time of conquest or
colonization, at the time of inroads of non-indigenous religions and
cultures, or the establishment of present state boundaries, who retain
some or all of their own social, economic, cultural and political
institutions, but who may have been displaced from their traditional
domains or who may have resettled outside their ancestral domains
c) Americans: “non-Christian”; “natives of the Philippine Islands of low grade
of civilization living in tribal relationship apart from settled communities.”
d) Non-Christian; they live in less accessible, marginal and mostly upland
areas; retain a system of self-government not dependent upon the laws of
the central administration; they follow ways of life and customs that are
perceived as different from those as the rest of the population.

Dr. Robert Fox (Anthropologist) -

Tabon cave men 50,000 years ago in Palawan
Wave Migration Theory - Land Bridges Phil-Borneo

Other Western Scholars -

Aetas or Negritos - 8000 BC - Stone Age
Malays from Malaysia - between 1000 BC to 500 AD - The Sri Vijaya, the great Malay
Empire based in Sumatra colonized the Philippines as they founded their capital in Cambodia
Came in Boatloads called “Balangay”.

F. Landa Jocano -
Java men - 2 million years ago

Prehistorians -
Australoid, exemplified by the Negritos
Southern Mongoloid People some 5 to 6 thousand years ago
The Concept of Legal Culture
E. Adamson Hoebel -
Animal Societies - Instinctual
Human Societies - Learned Behaviour

Stone Age (50000 BC)

Tabon cave men
The greatest fear of the primitive man is the unknown (supernatural beings and forces of
nature)
Offerings and rituals sprang norms of conduct, which taken together, forms custom.
Ritual - Habit - Custom - Tradition
“Basic pattern of ritual response to deviations began to emerge”. At this juncture,
primitive man began to use the method of reasoning by analogy.
Maine: “Prohibitions and ordinances , originally confined, for good reasons, to a
single description of acts, are made to apply to all acts of the same class, because a man
menaced with the anger of the gods for doing one thing, feels the natural terror for doing any
other thing which is remotely like it.

ANIMISM - worship of animals and other objects of nature.

When images of deities took human form, the early concepts of law and justice applying
to human society became linked to the gods. Soon, certain gods were considered specific
guardians of law.

Primitive man began to question local custom - Stone Age’s version of law reform.
Realized the necessity of cooperation with his neighbors.
Instead of “eye for an eye”, why not ask for an equivalent compensation; idea of
damages, compensation for death or injuries.
Ifugao - except for homicide cases calling for direct blood revenge, procedure
requires the use of a go-between acting as an advisor or mediator..
- Given to them by Lidum, a deity of the skyworld, and an uncle of
their ancestor Balitok
Negritos - the concept of compensation had to be given a religious shroud to
make it acceptable to the whole tribe.
-Middleman proposed the idea of reconciliation with the relatives of the
victim by means of sacrifices to the spirit named Manglobar who soothed angry hearts. The
sacrifice could be gold or other valuables or a slave to kill.

Evolution of Customs into Law: From the Stone Age to Agriculture

Hoebel: Basic Elements of Legal System: a) norms; b) regularity of enforcement; c) judgment

mechanisms; and d) enforcement.
Sanctions for violations of norms may be positive or negative.
Prof. P.V. Fernandez: 1) it must be a rule of general character prescribing a specific norm of
conduct and;
2) there must be some form of sanction imposed by the community in case the norm is not
observed.
- BONTOC:
- a) It is the main force behind the system of taboo, consisting of prohibitions
protective of community values.
- b) It is the sanctioning behind the sacred oath or pledge exacted of those
adjudged guilty of a serious offense, to avoid repetition of the same offense.
- c) It is associated with the power for the protection and vindication of the
innocent, and retribution upon the guilty and the unjust. It is the common
consciousness of such power which gives efficacy to the traditional remedies,
especially the trial by ordeal as practiced by the Botocs.
- d) It is the source of the cleansing rituals, by which offenders whose acts have
placed them beyond the pale, are reconciled with their brethren, and are restored
to the community.
- e) Its belief system invests with the balm of atonement, the harsh or even cruel
penalties imposed on violators of Bontoc laws, such as the penalty of mando.

Fundamental requisite for norms to qualify as law is the legitimate use of coercion by a socially
authorized agent.

William Henry Scott - on pre-Hispanic Filipinos: “it suggest a vigorous and mobile population
adjusting to every environment in the archipelago, creatively producing local variations in
response to resources, opportunities and culture contacts, able to trade and raid, feed and
defend themselves”.

Obviously the traps left in the wild or the nets left in the river were recognized as the
property of the trapper based on the idea that labor, if not invention, is a mode of acquiring
property. And the animal caught in the trap, or the fish caught in the net, also belonged to the
owner under the theory of capture, as a mode of acquiring property.
-shared with the anitos (Forest Guardian) and other members of the tribe.
-applied also to humans, BIHAG

Neolithic man- tamed most of our domesticated animals and invented agriculture.
-offspring of their animals became their property
-Alfred Toynbee: “Agriculture is one activity that develops foresight, forethought,
perseverance, and self-control, and require an unfailing practice of these virtues to keep them
going.

Notions of Property
Legal Historians: “occupancy first gave a right against the world to an exclusive but temporary
enjoyment, and that afterwards this right, while it remained exclusive, became perpetual.”
 Henry Maine: Nature res nullius became property through occupancy. But the
Neanderthal’s right to possession would be exactly co-extensive with his power to keep it.
-private property was chiefly formed by the gradual disentanglement of the
separate rights of individuals from the blended rights of the community.

When he joined a tribe and became a member of a big group, there must have been a
leader or central authority to impose obligations and define rights to property.

Our primitive ancestors developed what modern jurists called “ legal postulates”, i.e.
generalized statements of the tendencies actually operating, of the presuppositions to which a
particular civilization is based.

Hoebel: A chief function of law is seen to be one of selecting norms for legal support that accord
with the basic postulates of the culture in which the law system is set..

“Ownership” means right to use the land.

Dean Marvic Leonen: “if one ceased to work, he would lose his claim to ownership..
People are “secondary owners” nd “stewards” of the land, since it is owned by the spirits
guiding the land.
-people worshipped spirits, deities, and anitos called diwata.

Greek speculator in ancient Miletus, ANAXIMANDER: “all things are full of gods”, i.e. that nature
is animated by principle.

Worship is probably one custom which our indigenes borrowed from the Hindu religion,
since part of the country, specifically the Visayas and the Sulu, was part of the Madjapahit
empire from 1100 to 1300. According to WIGMORE, the Philippines at that time, the more
advanced tribes used Hindu syllabaries for writing, and their mythology, folklore, politics,
customs, law and general literature had a distinct Indian cast.

Ifugao: According to BARTON, lands and other articles of value that have been handed down
from generation to generation cannot be the property of any person.
-the basis for the ifugaos’ claim to the rice terraces is human labor. The claim is made
acceptable by claimant’s invocation of religion.

Tagalog: upon death of the possessor, it is natural that his children would the over of the
property. NOTION OF HEREDITARY SUCCESSION or INHERITANCE OF PROPERTY.
Personal property could be descended to family members.

Our pre-Hispanic Ancestors laid claim to personal property on the basis of DISCOVERY.

(VISAYA: CROCODILE = GRANDFATHER extra)

Clearly, our forefathers were the original environmentalists whose curious customs gave rise to
what we now know as Environmental Law.
Social Status and Organizations

Family - Clan - Barangay - Chiefdom (loose confederation of Datus) - Tribe - Community

Thus the need for government.

Barangay:
30 to 100 families, bound by kinship; governed by a Datu (leader, legislator and arbitrator)

Chiefdoms:
A loose federation of chiefs bound by loose ties of personal allegiance to a senior among them,
and those primus inter pares were called PANGULO (leader), or KAPUNOAN (most sovereign),
or MAKAPOROS NGA PANGULO (unifying chief)

DATU:
His power depended upon his wealth, the number of his slaves and subjects, and his
reputation for physical prowess and leadership.
He was assisted by a CHIEF MINISTER, a STEWARD, TRIBUTE COLLECTORS, a
SHERIFF, a TOWN CRIER, and a retinue of SLAVES.
And like the feudal lords, the Datu enjoyed the power of DROIT D’SIGNEUR: he created
the law for the barangay and thus encrusted custom into tradition and tradition into law.

In the barangay government, the relations between the chief and the members of his
barangay refined the legal concept of OBLIGATION, or UTANG (including UTANG NA LOOB
please lang, pagod na ko huhuhuh)

Personal and Family Law

Family = basic unit

Visayan: Father = BABA
-Bride Price called “BUGAY”
- Polygamy was TOLERATED (wew)
-Divorce or separation was relatively liberal: for incompatibility, neglect, or misconduct.
-In succession, all the legitimate children inherit equal shares of the property of their
parents. If the father had two or more wives, each child inherited what belonged to his/her
mother. Illegitimate children inherited only at the pleasure of the legal heirs.

Marriage was entered with mutual consent, although these were contracts between families
rather than individuals.

Foreign Influence in the Formation of Law in the Days of the Barangay

Chinese Influence:
Arrange marriage instead of capturing women as mates
Implied Contract: for the prospective groom to render service to the girl’s family during
the engagement and the payment of a dowry.

But the concept of contract was probably refined more in the 11th and 12th Century.
Trade with China - Tang Dynasty (from 618 to 907 AD)
Chinese Ship Captains would present gifts to Chiefs in ports of Luzon (probably, chinese
invented BRIBERY)
Filipinos based in MALACCA owned big boats and they were underwriting large-scale
exports to the Chinese Markets. Their trading junks paid official visits to the Chinese Emperors.

The country was once part of the Buddhist Shri-Visayan empire from the 700 to 900 AD,
which stretched from Malaysia, Sumatra, Siam, Central Java and the Philippines, and cultural
and commercial relations were established between these nations.

From the etymology of the term “SANGLAY”, we can surmise that some forms of credit
transactions took place between our ancestors and Chinese traders. The term comes from two
chinese words, CHANG and LAI, meaning “REGULARLY COME”, that is itinerants could be
trusted to keep commercial contracts from one trading season to the next.

Southern Philippine - Shipbuilding industry

-own system of weights and measure
- Visayans and Suluans had a pre-Islamic calendar which they must have
used for extending credit.

Indigenes Concept of the Law of Nature

William Henry Scott:

Visayans (applicable in Luzon and Mindanao):
KABTANG were Customs, but KAHIMTANG was nature or condition, and both were
derived from BUTANG, or to put something in its place.
Concept of ALAGAG, or the natural awe which younger people felt in the presence of
seniors.
HILAS was the reluctance to contradict parents or superiors.
NAGA KAHILAS was for an ancestor spirit to keep a disrespectful child awake with a
guilty conscience.
BATAS - decree regulating commerce
BATAS-BATAS - Tariffs

Penal Law and Procedure

Old Barangay Common Crimes: theft; murder; defamation; witchcraft; offenses against the datu
and his family; and malicious vandalism.
Fernandez (Principal Features):
a) the principal prohibitions were concerned with the values of personal security and property;
b)wide distinctions were observed in the imposition of penalty based on the rank of the
wrongdoer and the rank of the victim;
c) the sanction were in the form of fines; and
d) in crimes subject to capital punishment, the ancient procedure of self-help was resorted to
which resulted in vengeance.

The price imposed were of high value property, and those who could not pay fines were
condemned to slavery. Death penalty was reserved for slaves who killed the datu or for women
convicted of witchcraft.

Among the early Filipinos, the favored mode of dispute resolution was MEDIATION and
CONCILIATION and, in case the parties could not agree, by ARBITRATION (just like what Dean
Fides said haha) presided by the DATU. When confronted by the question of custom law, he
consults the experts.

TRIAL BY ORDEAL
Asked to do some stupid shit. Those who can’t or won’t do the shit or lose in the shit
were the guilty parties.
Based on their animistic religious belief that the gods would protect the innocent and
punish the guilty.
Probably a result of Hindu influence.
Only in contested criminal cases.

PUBLIC TRIAL
Investigation - Interview of Witnesses - Announcement of Verdict to the Public (in
accordance with the evidence)

TRIAL BY COMBAT
TYRION (to the crowd): I saved you. I saved this city and all your worthless lives. I should have
let Stannis kill you all--
TYWIN: Tyrion. Do you wish to confess?
Tyrion turns to face Tywin.
TYRION: Yes, father. I'm guilty. Guilty. Is that what you want to hear?
TYWIN: You admit you poisoned the King?
TYRION: No, of that I'm innocent. I am guilty of a far more monstrous crime. I am guilty of being
a dwarf.
TYWIN: You are not on trial for being a dwarf.
TYRION: Oh, yes I am. I've been on trial for that my entire life.
TYWIN: Have you nothing to say in your defense?
TYRION: Nothing but this: I did not do it.
He turns from his father to Cersei.
TYRION: I did not kill Joffrey but I wish that I had. Watching your vicious bastard die gave me
more relief than a thousand lying whores.
Cersei has never hated Tyrion more than in this moment.
Tyrion turns from her and looks out at the crowd of nobles.
TYRION: I wish I was the monster you think I am. I wish I had enough poison for the whole pack
of you. I would gladly give my life to watch you all swallow it.
Uproar from the crowd Killer! Kingslayer! Monster!
TYWIN (shouting over the crowd, to Meryn Trant): Ser Meryn, escort the prisoner back to his
cell--
TYRION: I will not give my life for Joffrey's murder. And I know I'll get no justice here, so I will let
the gods decide my fate. (beat)
I demand a trial by combat!
The roar of the crowd is deafening.

Adat of the Lumads

ADAT - an unwritten code of law on proper conduct, right action and procedure.
- Its classification of right conduct is not rational but metaphorical, and its contents are
formulated in sayings, proverbs, and poems.
- Human life, social and individual, must always be in harmony with the universe.
- Since this kind of Adat is continuously transferred from and fostered from generation to
generation, it is then called the SUCCESSIVE ADAT (ADAT PUSAKA USANG).

Some Foreign Scholar (Owen Lynch Jr.): “pre-conquest natives also developed a wide array of
legal norms, leadership structures and dispute settlement process” which “reflect environmental,
cultural and historical factors which are unique to the indigenous inhabitants of the Philippine
Archipelago”.

Custom Law of the Hispanized Filipinos

Vernon Palmer’s concept of penetration, merger and interaction of laws -

In general, this refers to the extent and the rights by which one system of law is received
and accepted by another.
Cultural Factor: values, beliefs, language, social structure, ideology, and other forms of behavior
accepted and practiced by the people.

Fernando Zialcita: there is dissonance between customary legal culture and the legal culture of
the West which is particularly marked in rural areas due to the diverse cultural traditions of
Filipinos which they inherited from their pre-Hispanic ancestors and which have resisted norms
and values imposed by the Western colonizers.

Local Customary Law > Westernized National Law

Gunnar Myrdal brand us as a “SOFT STATE”, unable to impose the rule of law uniformly

Under custom law:

OFFENSES were defined and ranked depending on the importance of defending and
upholding one’s honor.
Compensation would depend on the values held by the members of the community,
involving factors like social status, lan ownership, religious affiliation, and nature of the injury of
the aggrieved party.

Scott reports that adultery in that period was not considered a crime but a personal
offense which was usually settled by the adulterer indemnifying the offended husband. Also,
virginity was not a premium (there is no specific term for virginity in the dialect), since premarital
sexual mores were lax, and liaisons were publicly known and long-lasting as they were a good
substitute for marriage to avoid formal expenses.

CHAPTER 2: The Advent of Islam

From Barangay to Centralized Government

By the middle of the 13th century and onward, as a result of the internal changes in the
Muslim Community, missionary enterprise gained headway, and Malaya, Sumatra, Java and
Mindanao became the seats of Moslem REGIMES.

Sultan - ruler by royal bloodline

Maguindanao - Sultan Kudarat
- The Sultanate was founded by a prince from Johore whose father was an Arab
Sharif (a descendant of the Prophet Mohammad)
- Was a Chinese port in the 14th century, according to Chinese records, and in
1420 a Chinese emissary established diplomatic and trade relations with one of
its districts.

Sulu - not part of Maguindanao

- Founded by an Arab Sharif in the 15th century
- Chinese Tributary State, and the rulers presented themselves at a chinese court
in 1417
Trading Centers
Caraga (now Surigao del Sur and Davao Oriental) - scene of slave trading wars

Butuan - oldest; was the first to establish diplomatic relations with China as tributary

Dapitan - was settled by refugees from Bohol who had fled to escape a Moluccan raid headed
by the Portuguese.

An old rival of Maguindanao is the SARANGGANI ISLAND

- Spaniards landed in 1543; docked with hundreds of boats

Mindoro (Ma-i) was a dependency of Brunei in the 14th century.

Luzon reached a high level of civilization even before the Shri-Visayan empire encompassed it
in the 12th century;Madjahapit empire in the 14th century; later, Luzon came under the influence
of the Sultanate of Brunei.

Penetration of the Islamic Law

Aside from the local dialect, MALAY was he language of royalty and commerce.
HUKUM (judgement), ASAL (custom) and AGIMAT (amulet) are MALAY-ARABIC)
PO - from the MALAY EMPU or master.

The centralized government took the form of sultanates and chiefdoms through peace pacts or
through marriages of convenience among the ruling families of datus and sultans

PRIMUS INTER PARES- a paramount chief who came from the most prominent or wealthiest
family in the area or who had gained renown for his victories in warfare
-Did no t enjoy monopoly of force or taxing powers

It was in SULU where the MOROS developed successively several codes drawn from Arabic
sources.
-the principal code was Luwaran, which stood next to the Koran in authority
-Code of Sultan Kudarat

KARAKOA - warship for raiding; a sleek double-ended cruiser with an elevated fighting deck
and catwalks mounted on the outrigger support

Islam also penetrated part of Luzon through Borneo like Manila, Mindoro, the Batangas Coast,
and the Betis Valley in Pampanga; most of it limited to the proscription against eating pork.

The spread of Islam was achieved only through the development of trade relations with JAVA,
BORNEO ad the PHILIPPINES
The other parts of the country untouched by Islam made less advance in civilization, and were
the TABULA RASA on which the SPANISH version of Christianity was later indelibly printed.

Nature of SHARIA or Islamic Law

Sharia - not only a source of law but a CODE OF LIFE

-rejects the principle of the separation of the church and the state
Felipe Fernandez-Armesto: Islam is a “political religion”
Seyyed Nasr: “important implication of the Moslem legal code was that the man had to accept
Islam entirely or reject it utterly. No halfway house was possible.”

Historical Background

Justice Jainal Rasul - divided the history of Muslim Law into 7 periods:
1) Prophet Mohammad was still arrive from 609 AD to 632, and his sayings (HADITH) were
compiled
2) Abu Bakr was chosen to lead the Muslims, and he succeeded in unifying the rebellious
Arab chieftains by force of arms.
a) The Caliphs were guided by reason, taking into consideration the customs and
usages of the various communities that were conquered.
b) Muslim went on to conquer Middle East, the lower Indus Valley, North Africa,
Spain.
3) 3rd Period
a) Founding of ancient schools of law.
b) Split of Muslim community between the Omnayad and the Abbasid caliphates
c) Subsequent development of Muslim scripture and the sacred law
4) 4th Period
a) Development of Muslim law by jurist of the Sunni school
b) Abbasid caliphate form separation of powers
i) Exercise of political and military leadership to the Abbasid caliphate
ii) Religious authority to the ulema-Islamic experts who developed Sharia
into a coherent body of sacred law.
5) 5th Period
a) Period of jurists who followed the view of the original founders
6) 6th Period
a) The age of commentators who followed the view of the original founders
7) 7th Period
a) Starts from the abolition of the caliphate in Turkey when Sunni Islam was left with
no recognized head

Sharia and Customary Law

Four Foundations of Islamic Law

1) Koran, the Holy Scripture
 2) Sunnah, the actual practice of the Prophet Mohammad
3) Ijma, the consensus of scholars
4) Qiyas, analogical reasoning
5) Spread of Islamic faith in many countries made it necessary for Islam to adopt the
custom law of the conquered territories as well as the intellectual traditions of the
converts
6) Sharia incorporated some customary in the Philippines such as the ADAT

The Tortuous Path of Sharia