LAWHIST – Atty.

Jose Samson

Module 1 - Our Legal System is Mestizo

 The Civil Law System from Spain
 The Common Law System from the US
 The Islamic Legal System (ummah, term for Islamic word or Muslim world)
 The Indigenous Customary Laws/Indigenous Legal Order

Pacifico Agabin tells us that “in his novel the Woman Who Had Two Navels, Nick Joaquin uses an allegory
of Mother Philippines whose cultural heritage drew life from two sources: Spanish and American.”

“Yet in law as in life, Joaquin’s metaphor flies in the face of facts. In law, the fact is that in the
Philippines, two legal systems have been crossed to form a hybrid. It is this hybridization of legal systems
which distinguishes American from British colonialism,” says former UP Law Dean Agabin. He quotes
Prof. Vernon of Tulane University.

“An under-emphasized but vital fact is the difference between British and American influenced
jurisdictions. Although both influences are common law, these countries have disseminated quite
different legal cultures. Civil law in South Africa, Quebec, and Israel have cohabited exclusively with the
English common law, and thus has been influenced by English tribunals, judges, and literatures…On the
other hand, civil law in Louisiana, Puerto Rico, and the Philippines has lived in turbulent monogamy with
American alw.”

But there’s some more, according to the kind Dean – it’s called Legal Pluralism.

“The use of the cross breeding metaphor for the history of our legal system should not rule out the
presence of legal pluralism in the Philippines. In this sense, Nick Joaquin’s metaphor of a woman with
two navels would be apt, in the sense that we have two strands of law subsisting side-by-side, Western
law and Islamic law.

Here’s a bit more from Dean Agabin on Legal Hybridity

“The child of the turbulent monogamy Palmer mentions is a hybrid, or what the Spanish and Filipinos
call a mestizo, a person of mixed race, the result of cross breeding the common and civil law systems.
According to Scottish scholar Thomas Smith (quoted in Palmer, supra), a legal mestizo is basically a
civilian system that had been under pressure from the Anglo-American common law and has, in part,
been overlaid by that rival system of jurisprudence.”

“Our national law is a product of hybridization, a mixture of two elements coming from Western
civilization where the civil law element is recognizable and traceable to its Spanish pedigree, and the
common law features to its Anglo-American heritage.”

But why do we include our indigenous legal system and its remnants in our study of legal history?

“The proper context of a legal system is culture. The lay of the land is part of the law of the land (Pacifico
A. Agabin).”

According to Dean Agabin, “[b]ecause, a spointed out by anthropologists, law is both fact and artifact.
From this perspective, law is merely one aspect of our culture – the aspect which employs the force of
organized society to regulate individual and group conduct and to prevent, redress or punish deviations
from prescribed social norms (quoting SP Simpson and Ruth Field). Law is a form of social control much
like custom, tradition, religion, superstition, and magic.”

“Culture is defined as patterns of learned behavior among humans, as distinguished from instinctual
behavior among animals (Hoebel, 1972).”

“Anatole France’s cynical dictum that which distinguishes man from animals is lying and literature, may
not always be the true for laymen, but might be apt for lawyers. Therefore, both lying and literature are
essential parts of legal culture, and should be included in a study of legal history.”

“It is misleading to study legal history only from perspective of the official legal system that is
operated and run by the government. For there is a big difference between the law in the books and
law as it actually operates in real life.” – Dean Agabin

“A study of a legal system would include a study of additional components like penetration, legal
extension legal structures, legal actors, and legal processes (Merryman, 1978)”

“All of these add up to the sociological concept of legal culture – those historically conditioned, deeply
rooted attitudes about the nature of the law and about the proper structure and operation of a legal
system that are at large in a given society.”

“A proper study of a legal system should delve into its roots – the legal extensions and penetrations of
the system.”

“Such a study should also cover the internal processes – the actors, structures, and institutions that are
involved in its real life operations. Penetration refers to the extent to which the legal rules have been
accepted by the people as part of their lives.

“In a third world country like the Philippines where half of the population live below the poverty line,
the official does not really affect very much the lives of the bottom half” – Dean Agabin

“The law penetrates the upper half, or even less, that is only the members of the ruling class and those
living in the highly urbanized cities. The lower half of the people live on a split-level legal structure which
combines customary law with the prevailing national law. This confirms that cultures are not monoliths;
they are fragmentary patchworks of authochthonous and foreign elements (Pagden, “Culture Wars,” in
The New Republic [1998])

“The legal structures, like courts, administrative agencies, the Congress, the President, the law schools
and the constitutional bodies are parts of the legal system. Together with the legal actors (judges,
lawyers, prosecutors, police, law students, and commentators), they make the wheels of justice turn
and grind. Without them, what we study would just be paper laws and rulings which are the grist and
will of typical law subjects.”

Civil Law System

 A comprehensive system of rules and principles usually arranged in codes and easily accessible
to citizens and jurists.
 A well-organized system that favors cooperation, order, and predictability, based on a logical
and dynamic taxonomy developed from Roman law and reflected in the structures of the codes.
  An adaptable system, with civil codes avoiding excessive detail and containing general clauses
that permit adaptation to change.
 A primarily legislative system, yet leaving room for the judiciary to adjust rules to social change
and new needs, by way of interpretation and creative jurisprudence.

Common Law System

 The common law, sometimes known as case law, is a legal system in which previous court
decisions establish legal precedents & new decisions must be in keeping with past decisions.
Common law may also refer to a legal system which relies on common customs and usages,
rather than on codified written laws or statutes. The common law forms a major part of the
legal system of regions in the world that are or were formerly under the rules of the British
Empire, including the United States, with the exception of Louisiana, which takes its model from
civil law, or codified decree, in the style of the original French governors.
 While judges develop the common law gradually, through the force of their rulings in specific
cases, it won’t be found in any written form comparable to statutory law. Common law is
instead the common consensus of legality and illegality that developed over centuries of
individual court rulings in Britain over roughly 800 years.

Islamic Legal System

 Islamic law is a comprehensive system covering the human being’s relationship with his Creator
with his fellow human beings, and with his society and nation. Jurists divide Islamic Law into two
broad categories: Devotional Law and Transaction Law.
 Devotional law deals with the injunctions that have as their primary objective attaining nearness
to Allah, showing Him gratitude, and seeking eternal reward in the Hereafter. This includes
prayer, fasting, Hajj, jihad, zakah, and the fulfillment of covenants. Transaction law, on the other
hand, deals with realizing worldly benefits and regulating human activity, both on the individual
and societal levels. This covers many branches of law, including Commercial Law and Personal
Law.
 Sharia refers to a set of Islamic religious law that governs aspects of day-to-day life for Muslims
in addition to religious rituals.

Indigenous Customary Law/Indigenous Legal Order

 The traditional law of indigenous peoples, generally oral sometimes narrative or based on
established performative practice, including song and dance, rather than in written codes or
principles.
 For example, the study of indigenous or aboriginal laws, tribal codes, treaties, between
indigenous people and the government (e.g. Kiram-Bates Agreement of 1899), government laws
that create rights and obligations specifically and only affecting indigenous people (e.g., IPRA,
1997), the relationship between indigenous people and the general legal system (e.g. indigenous
people and the criminal justice system), and where the legal pluralism has been recognized by
the sovereign, there exists with the mainstream legal system, another autonomous legal order
such as Bangsamoro Organic Law (R.A. 11054).
Module 2 - Indigenous Legal Culture
Who are the Philippine Indigenes?

The Indigenous Peoples’ Rights Act of 1997 [IPRA] or R.A. 8371

Sec. 3(h) – Indigenous Cultural Communities/Indigenous Peoples — refer to a group of people or

homogenous societies identified by self-ascription and ascription by others, who have continuously lived
as organized community on communally bounded and defined territory, and who have, under claims 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 and cultural inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples
who are regarded as indigenous on account of their descent from the populations which inhabited the
country, at the time of conquest or colonization, or 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;

Distinctive Traits of Filipino Indigenes That Set Them Apart from Lowlanders

 They are non-Christians;

 They live in less accessible, marginal, and mostly upland areas;
 They 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 of the rest of the
population;
 They do not fall within a singular anthropological category (e.g., wet agriculture, shifting
cultivators, fishermen, some are acculturated, some are resistant to change, etc.) [Macdonald in
Agabin]

But in Rubi v. Provincial Board of Mindoro [39 Phil. 660, 1919], our ancestor indigenes were called by our
American colonizers as natives of the Philippine Islands of a low-grade civilization living in tribal
relationship apart from settled communities.

Some Anthropological Tidbits

 Dr. Robert Fox says the country’s earliest inhabitants were the Tabon cavemen who lived in the
caves of Palawan 50,000 years ago
o Under the wave migration theory, held by a number of Western scholars, they reached
the Philippines through the land bridges from Borneo. It is said this theory has been
largely debunked.
o William Henry Scott theorizes that there were only two movements into SEA; the first
was the Austroloids (Negritos), the second being the Souther Mongoloids, some 5 to
6,000 years ago.
  Other scientists like Peterson believe the first wave came much later and the the Aetas and the
Negritos came here around 8,000 BC, the Stone Ages.
o Between 1000 BC and 500 AD, the Malays came over from Malaysia, the period of the
Sri-Vijaya empire based in Sumatra but with their capital in Cambodia. They came in
boats called balangays and settled in river mouths giving rise to river-based societies.
 However, F. Lando Jocano, a Filipino anthropologist, holds a different view. He traces our
earliest ancestors to the Java man, who is believed to have existed 2 million years ago.

The Concept of Legal Culture

 According to E. Adamson Hoebel, law must have a proper frame of reference and requires a look
at society and culture at large to find the place of law within the total social structure. He
proceeds saying:
o That human behavior is largely learned;
o That culture is learned behavior in the aggregate, its integrates sum manifested and
shared by members of a society; and
o That from this is derived legal culture.
 Michael Stolleis tells us that “where the human world and the natural world were “one,”
deviations from that which was considered “right” were healed ritually, and nature was involved
in the process dialogically [and] basic patterns of ritual response to repeated “deviations” (e.g.
homicide, adultery, theft) began to emerge.
 At this juncture, primitive man began to use the method of reasoning called analogy.
 According to Henry Summer Maine:

“Analogy, the most valuable of instruments in the maturity of instruments, is the most
dangerous of snares in its infancy. 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 a natural terror in doing
another thing which is remotely like it. After one kind of food has been interdicted for sanitary
reasons, the prohibition is extended to all food resembling it, although the resemblance
occasionally depends on analogies the most fanciful.
 Agabin says that the “primitive man either feared or revered the forces of nature. To them,
nature was the great unknown, and it could cause untold calamities or render plentiful harvests.
 In the days of yore, tribal wars were quite common in the north. The name of the game was “an
eye for and eye, a tooth for a tooth.” So alternatives to these wars and headhunting were
evolved. Instead, equivalent compensation were exacted. Thus, the idea of damages was born.
 Prof. PV Fernandez tells us:
o “From the standpoint of Ifugao society, and its concern with the preservation of peace
and harmony within the society, the Ifugao system of justice is an evolved alternative to
the harsh conditions engendered by lex talionis, including violence, terror, armed strife,
and injustice, through a public determination of truth concerning an alleged wrong
participated in by the community, and buying off the vengeance due, in case of a
judgment of guilt, by imposition and exaction of sanctions sufficient to make reparation
for the wrong done according to custom.
How Does Custom Become Law in a Given Society?

 Hoebel lays down four elements: (1) norms; (2) regularity of enforcement; (3) judgment
mechanisms; and (4) enforcement.
 P.V. Fernandez suggests two criteria as proposed legal anthropologists: (1) the custom 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.
 With the people of Bontoc, religious beliefs are tied up with their justice system: For example:
o It is the main force behind taboos consisting of prohibitions that protect community
values
o It is the sanctioning influence behind the sacred oath or pledge exacted of those
adjudged guilty of a serious offense, to avoid the repetition of the offense
 It is associated with power for the protection and vindication of the innocent, and for the
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.
 It is the source of the cleansing rituals by which offenders whose acts have placed beyond the
pale are reconciled to their brethren and are restored to the community
 Its belief system invests with balm of atonement the harsh, or even cruel penalties imposed on
violators of Bontoc law
 Positive sanctions may range from pat on the back to posthumous enshrinement; negative
sanctions may range from social ostracism to execution

However, for norms to become law, the fundamental requisite is that there must be a SOCIALLY
AUTHORIZED AGENT who has been vested with the LEGITIMATE ISE OF PHYSICAL COERCION. Put simply,
the word of law must have the sword of force, even if the sword remains in the scabbard.