Part III Legal System andThe Constitution A.M. SALVA
The Natural World of LawLAW – “ that which must be obeyed andfollowed by citizens, subject to sanctions orlegal consequencies”. Deals with outwardacts and enforced by the physical force ofthe State.Right – refers to what is recognized andprotected by the law and can be enforced incourt.Morality – concerned with inner motivesand intentions, and is enforced by publicopinion and one’s own conscience.
Natural Law-considered a a highest law, a law whichis attributed to God or the Creator, andhigher than laws made by human.Aquinas: “natural law is nothing elsethan an ordinance of norm for thecommon good”Stoics & Judeo-Christian: “a necessarycourse that nature drastically obeys, withno distinction or qualification madebetween moral and physical law”
Schools of Law1. Positivist School. John Austin (1790-1859)2. Scientific or Pure Science School.Hans Kelsen (1881-1973)3. Historical School. Friedrich VonSavigny4. Sociological School. Eugene Ehrlich(1862-1992)5. Functional School. Roscoe Pound(1870-1964)
Schools of Law1. Positivist School. John Austin (1790-1859) Law is viewed as a relationshipexisting between the superior leadersand the governed. The element ofauthority is what keep a law bindingamong the people.
Schools of Law2. Scientific or Pure Science School.Hans Kelsen (1881-1973) Law is a command not directlyfrom a sovereign body but from thebasic norm of the people. Legal orderis the first hierarchy if control fromwhich all other norms emanate.
Schools of Law3. Historical School. Friedrich VonSavigny Law is the result of unconsciousdevelopment finding its roots in theinstinctive sense of the right of thepeople, which manifest it in externalacts as it appears in practice, mannersand customs.
Schools of Law4. Sociological School. Eugene Ehrlich(1862-1992) Law as the chief attribute ofsociety. It emphasizes the relationshipbetween law and social needs andinstitutions. However, popularacceptance is necessary before it canbecome a true law, to the extent thatcustom gains social approval, it alsogains the approval of sociologicaljurists.
Schools of Law5. Functional School. Roscoe Pound(1870-1964) The function of law is to balanceconflicting individuals or socialinterest in order to achieve themaximum of want with the minimumsocial friction. That one can not understand whatone really is without studying what itdoes.
Different Legal SystemsEMIL DURKHEIM: “Law is the set ofrules that binds a society together.Law is what made man organized in ahuman polity”.Law developed over time, graduallyurbanized into varying legal systemsand varied types of government.
Different Types of Law1. International Law2. Civil Law3. English Common Law4. Roman Code Law5. Sharia Law
Different Types of Law1. International Law - that body of principles and rules generally accepted by civilized nation- states as binding upon their conduct, consisting of international treaties, conventions and long stablished customs recognized by most nations.
Different Types of Law2. Civil Law – regards the primacyof statues and codified laws; provideredress for private individuals orcorporation who feel injured;regulates relations between people(inheritance, marriage, property,bankcruptcy, etc.)
Different Types of Law3. English Common Law – usedin US and Britain, it is based oncustoms and traditions common to allcitizens. It also evolved from judges’decision as precedents as theymature into a ‘predictable legalenvironment’.
Different Types of Law4. Roman Code Law – it datesback to Justinian Roman Emperor(527-565) known for its classification,order, uniformity, and inflexibility. Itblended the elements of logic withexperience.
Different Types of Law5. Sharia Law – Islamic law based onthe set of rules for general conductdeveloped over the first centuries afterthe death of Mohammad. It centers onobligations to God and to other peoplerather than on any sort of rights orentitlements, based on Islamicprinciples of justice, good deeds,equality and human brotherhood.
Sources of Law1. Legislation2. Precedent3. Custom4. Principles of Justice and Equity5. Decisions of foreign tribunals, professional opinions of competent Judges, legal scholars, and religion
Sanctions of State Law1. Penal Law – If the object of the sanction is to punish the offender and deter men from committing the same offense.2. Remedial Law – If the object of the sanction is the indemnification of the person who has suffered from the violation of the law.
Branches of Law1. Public Law – Concerned with the Statein its political or sovereign capacity,including constitutional or administrativelaw. Concerned with the definition,regulation, and enforcement of rights incases where the State is the subject ofright or object of duty. It covers Political,Administrative, Criminal, Penal andConstitutional Law.
Branches of Law2. Private Law – Governs the privaterelations between citizen and citizen, orthe definition, regulation, andenforcement of rights in cases whereboth the person in whom the rightinheres and the person upon whom theobligation is incident are privateindividuals.
Legal RightsPhilippine Civil Code: Rights may bewaived provided they are not contrary topublic order, public policy, morals or goodcustoms, or prejudicial to third persons with aright recognized by law to demandcompliance from any persons, corporationsor institutions.
Legal RightsFour Basic Elements1. Active subject – refers to the personwhom the right emanates2. Passive subject – refers to the personagainst whom the right is available3. Object – refers to a thing or property overwhich the right is exercise4. Prestation – refers to the duty of anotherto act or forbear on what is legally prescribedor prohibited.
Legal Rights“Right” – The capacity, privilege, powerand immunity of the possessor. It enablesa person to exercise such capacity. It isthe power to do acts with juridical effects.Gamboa (1990): There can be no right infavor of one unless there is a duty on the part ofanother. There can be no duty on the part ofone without a corresponding right residing infavor of another.
Classification of Rights1. Personal Rights (Rights in Personam)2. Real Rights (Rights in Rem)3. Positive Rights4. Negative Rights5. Perfect and Primary Right-------------“ignoratia legis neminem excusat”– ignorance of the law excuses no one fromcompliance therewith. The law applies to allwithout distinction.
Application of the Lawi) If the law is clear as it is the governing law on the controversy at hand, it must be simply applied to resolve the issue;ii) If the law is ambiguous, the application of the law should result from the rules of statutory construction;iii) If there is no law on the case at bar, customary law may apply to it in the default of it, the general principle of justice and equity.
The Constitution A constitution is a writteninstrument by which the fundamentalpowers of government are established,limited, and defined and by whichthese powers are distributed amongseveral departments, for their moresafe and useful exercise, for thebenefit of the body politic.
The ConstitutionMaddox and Duchacek (1997) – atypical constitution contains four parts:1. A Preamble – delaration of principles2. An organizational section - sets theConstitution of the Government3. A bill of rights - sets the Constitution ofLiberty4. Procedures for amendment
Constitution in DemocraciesUS – the oldest and probably the bestwritten democratic constitution to whichmany developing democracies anchoredtheir present fundamental laws.Britain – has no written constitution, butby custom, law precedent and traditionare so strong that the British governmentconsiders itself bound by practices thathave developed over the centuries.
Constitution in DemocraciesUSSR – adopted likewise explicitconstitutional provisions in theory, whichdoes not necessarily translate into actualpractice. The Communist Party controlledthe government with diminishing authoritygiven to the state or to the legislature, andindividual rights and freedoms wererestricted on the basis of how their leadersinterpret them. considers itself bound bypractices that have developed over thecenturies.
As the Higher Law of the Land The Constitution generally protects , guarantees and safeguards the rights of an individual and defines the government machinery and instrumentalities, however, it can not provide for every legal or administrative problems that may arise. To make the provisions of the Constitution specific, statues are legislated or enacted and become enforcing regulations of the state to enable the realization of the objectives of the Constitution.
The Purpose of a Constitution 1. A Constitution is a statement of national goals and ideals. 2. A Constitution establishes the legitimacy of government. 3. A constitution formalizes the basic structure of government.
Constitutions and StatutesConstitution – the main organicauthority, a direct legislation from thepeople carried through a plebiscite.Statutes – those that are passed by theCongress and approved by the Presidentto lay down the specifics of the generallaw (Constitution).
Constitutional LawJustice Dicey (1960): “The absolutesupremacy or predominance of regular lawsas opposed to the influence of arbitrarypowers…it means, again, equality before thelaw or the equal subjection of all classes tothe ordinary law of the land” (Haque, 2002) The Rule of Law is the principle thatthe law should rule according to theestablished framework to which all conductand behavior conform.
Constitutionalism The doctrine that states should befaithful to their constitutions because therules so provided are all that can protect thecitizens from arbitrary decisions by powerfulpeople. It refers to the degree to which thepower of a government is limited andindividual rights are respected.
Constitutional Law The source of constitutional law is the natural order emanating from the Divine will. A law that is eternal and universal, and may come in the form of : 1. Natural Law – one that is inherently moral and physical bestowed upon man as steward of the natural order of things. 2. Positive Law – Positive Divine Law among christian is the Bible; Positive Human Laws are those governing the interest of the people (e.g. civil law) promulgated by competent authority.Constitutional law is primarily a part of public law embodied in the Constitution which serves asthe basis of social, political and economic order of State.
Methods of Establishing aConstitution1. Constitution by Revolution. Came intobeing by means of people’s uprising.Whenever all peaceful means proved futileto reform or change a rotting system, aradical transformation of social order shallthen ensue.
Methods of Establishing aConstitution2. Constitution by Evolution. Came as aproduct of historical process, by longacquiescence to the continuously growingpolitical practices, recognized by people aslegally binding. Britain’s constitution has beena history of quiet change, slow modification,and almost unconscious development.Changes in its spirit occurs from century tocentury and brought about so gradually thatthe process of change has hardly beenperceptible.
Methods of Establishing aConstitution3. Constitution by Grant. Came into beingwhenever a ruler by himself promulgated aformal instrument or legal document in whichhe clothed himself to exercise political powerwith deliberate acceptance on his part.Examples: Meiji Constitution of Japan; theConstitution of France by Louis XVIII
Methods of Establishing aConstitution4. Constitution by Creation. Came into beingwhenever the people decided to do so in amanner consistent with legal requirements. Inthe Philippines, either thru:i) Constitutional Convention. The peoplemust choose delegates to draft a constitution;ii) Constituent Assembly. The presentmembers of the legislative house constitutethemselves as an assembly with the purposeto draft, revise or amend the constitution.
Classification of Constitution1. As to Origin. It is either enacted or evolved. i) an enacted constitution – when it is aproduct of tedious legislation by a constituentassembly or a constitutional convention. ii) a constitution is evolved orcomulative – when it is a product of longpolitical and cultural history of the people fromgeneration to generation drawn from customs,traditions, norms and values, precedents ofjudicial rulings etc.
Classification of Constitution2. As to Form. It is either written or unwritten. i) written constitution – It is codified,expressed, and formalized. Its essentialcharacteristics are: i) clarity of thought; ii)brevity of words; and iii) broadly organized. ii) unwritten constitution– A product ofpolitical evolution, basically from socialcustoms, traditions, values and judicialdecisions, with some parts codified. (Britain)
Classification of Constitution3. As to Amendment. In response to changingneeds over time. It is either rigid or flexible. i) rigid constitution – It is difficult toamend since it follows an enormous process ofratification by the electorate thru plebiscite. ii) flexible constitution– The mannersimply requires the basic procedures in whicha law may be changed, amended or repealedunder same legislative process as in anyordinary law.
Constitutional designsobserved in amendmenti) Constitutions should preferably not break drastically with long standing traditions of the people and government;ii) Constitutions should possess clarity, brevity and should be broad at the same time;iii) Incentive Compatibility should be built in as much as possible so that the holders of power will find it personally advantageous to do what society as a whole needs from.
Interpreting and Constructing Whenever a law is clear and notambiguous, it should be read and understoodprecisely from its words and letters. Interpretation is resorted only tounderstand the written legislation or simply theexplanation of the law itself. Constructing a constitution or a lawevokes and gives light to the very nature andintent or the spirit of those who wrote it, and ofthe people who ratified it.
Constitution and StatutesConstitution – A direct legislation from thepeople thru a plebiscite. It is the people who intheir sovereign capacity, wrote and approvedthe constitution of the land.Statues – Those laws passed by Congressand approved by the President. A subsidiaryto the supreme law, statues are legislated bythe people’s representatives in Congress, andare enacted to address existing conditions ofthe constituency.
Next: Part IVDemocracy, Authoritarianism and Totalitarianism