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To Review:

Topic 1: Concepts of Law

1. Concept of Law
- Malixi vs. Baltazar GR.
No. 208224
2. Equity as balancing
standard between rules and
substance

Topic 2: Basic Principles under

Civil Code

1. Preliminary Title (Civil Code

Act. 1-7)
2. Effectivity of Laws
- Tanada vs. Tuvera GR.
No. L-63915

Topic 3: The Civil Law Legal

System

1. Introduction to Civil Law

Legal System
2. The Role of Judicial
decisions and Doctrine in
Civil Law and Mixed
Jurisdiction

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INTRODUCTION TO LAW
Judge Benjamin Cardozo
CONCEPT OF LAW
- “Law is a principle or rule of conduct so
Thomas Aquinas established as to justify a prediction with
- A philosopher reasonable certainty that it will be
- Referred to law as “...nothing else than an enforced by the courts if its authority is
ordinance of reason for the common challenged.”
good, promulgated by him who has the
care of the community.
- His conception of law is its characteristics as
an order which imposes obligation or moral,
certainty, consistent within itself and with - These definitions stressed the role of courts
other laws, just, capable of being as the only progenitor of law and
observed/followed by its subjects, and importance of stare decisis or judicial
enforceable (Fagothey, 1963) precedent in the stability and predictability
- He was advancing the idea that only laws of the law
which are reasonable, promulgated for the
common good, issued by legitimate authority,
would qualify to be “law” - A precedent is a principle or rule established
- Policies which are unreasonable which in a previous legal case that is either binding
protects the interests of the few rather than on or persuasive for a court or other tribunal
the general welfare could not be considered when deciding subsequent cases with similar
law. issues or facts.

Sanchez Roman - Stare decisis – is the principle by which

- Spanish legal luminary judges are bound to precedents (Let the
- The law “. ..is a rule of conduct, just and decision stand”).
obligatory, laid down by legitimate
authority for common observance and Types of Law
benefit.”
- Very much embedded in this concept of law 1. Public Law
as it stressed that the law is the rule of
conduct laid down by legitimate authority. - is concerned with the structure of
- Under the only source of law is the government, the duties and powers of
enactments laid down by the government officials, and the relationship between the
agency which possesses the power of individual and the state.
legislation. - it includes such subjects as constitutional
- His concept of law is positivist in character law, administrative law, regulation of public
with the promulgated law occupying the utilities, criminal law and procedure, and law
center of the legal system and prescribed to relating to the proprietary powers of the
be just for the observance of everybody and state and its political subdivision.
instituted for the benefit of all.
2. Public Law

Justice Oliver Holmes & Judge Benjamin - is concerned with both substantive and
Cardozo procedural rules governing relationships
between individuals.
Justice Oliver Holmes - subjects like law of torts or private injuries,
contracts, property, wills, inheritance,
- “The prophecies of what the courts will marriage, divorce, adoption, and the like.
do in fact, and nothing more pretentious,
are what I mean by the law.” Law may be categorized as:

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1. Substantive Law - part of the law which WHEREAS, it was likewise observed that
creates, defines, or regulates rights “[u]ndoubtedly, newspapers of general circulation
concerning life, liberty, or property, or the could better perform the function of communicating
powers of agencies or the instrumentalities the laws to the people as such periodicals are more
for the administration of public affairs easily available, have a wider readership, and come
2. Procedural Laws - adjective laws which out regularly”; and
prescribe rules and forms of procedure of WHEREAS, in view of the foregoing premises Article
enforcing rights or obtaining redress for their 2 of the Civil Code should accordingly be amended
invasion; they refer to rules of procedure by so the laws to be effective must be published either
which courts applying laws of all kinds can in the Official Gazette or in a newspaper of general
properly administer justice. circulation in the
country;
PLELIMINARY TITLE
NOW, THEREFORE, I, CORAZON C. AQUINO,
President of the Philippines, by virtue ofthe powers
I. Effect and Application of Laws
vested in me by the Constitution, do hereby order:
Sec. 1. Laws shall take effect after fifteen days
Act. 1. This shall be known as the “Civil Code of following the completion of their publication either in
the Philippines.” the Official Gazette or in a newspaper of general
circulation in the Philippines, unless it is otherwise
Act 2. Laws shall take affect 15 days after provided.
following the completion of their publication in
the Official Gazette, unless it is otherwise Sec. 2. Article 2 of Republic Act No. 386, otherwise
provided. This code shall take effect one ear known as the “Civil Code of the Philippines,” and all
after such publication. other laws inconsistent with this Executive Order
are hereby repealed or modified accordingly.
Notes:
Sec. 3. This Executive Order shall take effect
Executive Order No. 200 supersedes Article 2 immediately after its publication in the Official
regarding the time of effectivity of laws. Gazette. Done in the City of Manila, this 18th day of
June, in the year of Our Lord, nineteen hundred and
EXECUTIVE ORDER NO. 200 eighty-seven.

PROVIDING FOR THE PUBLICATION OF LAWS Art. 3. Ignorance of the law excuses no one from
EITHER IN THE OFFICIALGAZETTE OR IN A compliance therewith.
NEWSPAPER OF GENERAL CIRCULATION IN
THE PHILIPPINES AS A REQUIREMENT FOR Notes:
THEIR EFFECTIVITY Ignorantia legis neminem excusat (Ignorance of the
law excuses no one). This is a necessary rule for all
WHEREAS, Article 2 of the Civil Code partly civilized society. Otherwise it would be impossible to
provides that “laws shall take effect after fifteen days enforce the law. It is very hard to determine whether
following the completion of their publication in the or not a person really does not know the law. Without
Official Gazette, unless it is otherwise provided…”; this rule, there would be anarchy. The law sacrifices
occasional harshness to prevent universal anarchy.
WHEREAS, the requirement that for laws to be
effective only a publication thereof in the Official Art. 4. Laws shall have no retroactive effect,
Gazette will suffice has entailed some problems, a unless the contrary is provided.
point recognized by the Supreme Court in Tañada,
et al. vs. Tuvera, et al. (G.R. No.63915, December Notes:
29, 1986) when it bserved that “[t]here is much to be Lex de futuro judex de preterito (The law provides
said of the view that the publication need not be for the future, the judge for the past). A retroactive
made in the Official Gazette, considering its erratic law is one which creates a new obligation and
release and limited readership”; imposes a new duty or attaches a new disability with
respect to transactions or considerations already
past.
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- The reasoning process of most judges is
The general rule is that laws must be applied deductive – that is proceeding from general
prospectively. The exception to this is when the principles to a specific solution.
statute provides that it may be applied retroactively. - The trial of cases usually involved an
However, this exception will not apply in the extended process with a serious of
following instances: successive hearings, and consultations for
a. Ex post facto laws. the presentation and consideration of the
b. Laws which impair the obligation of contracts evidence.
c. Penal laws insofar as it favors the accused - Originated from Rome.
who is not a habitual criminal, even though at - Its development could be credited to jurists,
the time of the enactment of such law final who were members of the upper class of the
sentence has already been rendered. Roman society and acted as advisers to
judges (praetors and judex) on how to decide
Other instances when a law maybe applied questions of law. There were the first pro-
retroactively include: bono lawyers in history who provided free of
a. Remedial laws as long as it does not affect or charge services to judges and the members
change vested rights. of the public (id.).
b. When the law creates new substantive rights - Was propagated by legal luminaries across
unless vested rights are impaired. the world and served as binding legal force
c. Curative laws (the purpose is to cure defects that kept societies intact.
or imperfections in judicial or administrative - Accursius – the great the Italian glossator
proceedings) who was leading glossator in the University
d. Interpretative laws of Bolognia who wrote medieval legal
e. Laws which are of emergency nature or are literature to provide legal scholars
authorized by police power.3 comprehensive statement of the law.
- Napoleon Bonaparte also played a key role
Art. 5. Acts executed against the provisions of in bringing the CVL system in the lands that
mandatory or prohibitory laws shall be void, he conquered. In his old age, he attributed to
except when the law itself authorizes their the French Code Civil as his true legacy:
validity.
“My true glory is not that I have won forty
Art. 6. Rights may be waived, unless the waiver ba6les. Waterloo will blow away the memory
is contrary to law, public order, public policy, of these victories. What nothing can blow
morals, or good customs, or prejudicial to a third
away and will live eternally is my Civil Code.”
person with a right recognized by law.

Art. 7. Laws are repealed only by subsequent 2. Common Law Legal System
ones, and their violation or non-observance shall
not be excused by disuse, or custom or practice
to the contrary. - Emphasizes the primary importance of
judicial precedents in the development of
law.
- Originated with the French Kings who, from
INTRODUCTION TO CIVIL LAW
time to time, order a group of men to declare
LEGAL SYSTEM what belongs to the king and what rights he
ought to have there—this is the origin of the
2 Major Legal System in the Legal System modern jury system.
- The trial of cases under the CML system
1. Civil Law Legal System (CVL) usually involved the use of a jury which hears
the testimonies of the witness and resolve
- Code-based legal system questions of facts in a case and thus,
- Primarily based on Civil Code that hearings are continuously done until a
emphasized the form, structure, and the decision is laid down in the soonest time
enumeration of both abstract and concrete possible.
principles of law within a unified whole.
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In general, the maxim, “non exemplis sed legibus enshrining basic rights and duties;
judicandum est” (decisions should be rendered in
accordance with, not with examples, but with the administrative law is however usually less
law) characterized the approach to deciding cases codified and administrative court judges tend
by civil law judges.
to behave more like common law judges;
• Only legislative enactments are considered
binding for all. There is little scope for judge-
made law in civil, criminal and commercial
(okay, di ko gets yung part na ito so copy paste lang
hshsshhs) courts, although in practice judges tend to
follow previous judicial decisions;
Two functions of jurists as legal advisers: They
provided written technical advice to judges and constitutional and administrative courts can
others about the state of the law and interpretation nullify laws and regulations and their
of textual material, such as from the Twelve Tables decisions in such cases are binding for all.
(an early statement of existing law, circa 450 B.C.)
or the Edict; and They were almost solely • In some civil law systems, e.g., Germany,
responsible, through their responsa, for the writings of legal scholars have significant
development of a comprehensive jurisprudence,
influence on the courts;
independent of judicial decisions, to meet the
continuing and changing demands of an increasingly • Courts specific to the underlying codes –
pluralistic society. Emperor Justinian codified most there are therefore usually separate
of the teachings of jurists during the early Roman
constitutional court, administrative court and
period in a compilation called “Corpus Juris Civilis.”
This compilation served as the primary source of the civil court systems that opine on consistency
Roman Law and the precursor of the modern Civil of legislation and administrative acts with and
Codes (id).
interpret that specific code;
• Less freedom of contract - many provisions
are implied into a contract by law and parties
Key Features of Common Law
or Civil Law Systems cannot contract out of certain provisions.
A civil law system is generally more prescriptive than
Civil Law System a common law system. However, a government will
still need to consider whether specific legislation is
Countries following a civil law system are typically
required to either limit the scope of a certain
those that were former French, Dutch, German,
restriction to allow a successful infrastructure
Spanish or Portuguese colonies or protectorates,
project, or may require specific legislation for a
including much of Central and South America. Most
sector.
of the Central and Eastern European and East Asian
countries also follow a civil law structure. There are a number of provisions implied into a
contract under the civil law system – less importance
The civil law system is a codified system of law. It
is generally placed on setting out ALL the terms
takes its origins from Roman law. Features of a civil
governing the relationship between the parties to a
law system include:
contract in the contract itself as inadequacies or
• There is generally a written constitution ambiguities can be remedied or resolved by
based on specific codes (e.g., civil code, operation of law. This will often result in a contract
codes covering corporate law, administrative being shorter than one in a common law country.
law, tax law and constitutional law)
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It is also important to note in the area of
infrastructure that certain forms of infrastructure
projects are referred to by well-defined legal
concepts in civil law
jurisdictions. Concessions and Affermage have a
definite technical meaning and structure to them that
may not be understood or applied in a common law
country. Care should be taken, therefore, in applying
these terms loosely. This is further considered
under Agreements.
party is in a much stronger bargaining position than
Common Law system the other.

Countries following a common law system are There are few provisions implied into a contract
typically those that were former British colonies or under the common law system – it is therefore
protectorates, including the United States. important to set out ALL the terms governing the
relationship between the parties to a contract in the
Features of a common law system include:
contract itself. This will often result in a contract
• There is not always a written constitution or being longer than one in a civil law country.
codified laws;
• Judicial decisions are binding – decisions of
the highest court can generally only be
overturned by that same court or through
legislation;
• Extensive freedom of contract - few
provisions are implied into the contract by
law (although provisions seeking to protect
private consumers may be implied);
• Generally, everything is permitted that is not
expressly prohibited by law.
A common law system is less prescriptive than a civil
law system. A government may therefore wish to
enshrine protections of its citizens in specific
legislation related to the infrastructure program
being contemplated. For example, it may wish to
prohibit the service provider from cutting off the
water or electricity supply of bad payers or may
require that documents related to the transaction be
disclosed under a freedom of information act. There
may also be legal requirements to imply into a
contract in equal bargaining provisions where one
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