ROMANTIC MOVEMENT AND VOLKSGEIST AND VOLKSRECHT

Prof. Ernest Barker, discussing the roots and theoretical foundation of the historical school in his book Introduction to Gierke, Natural Law and the Theory of Society, published in Cambridge in 1934, wrote:

The beginnings of the School of Historical Law in Germany are rooted, in their immediate origins, in a reaction against Natural Law -a reaction against its rationalism, against its universalism, and against its individualism.Instead of pure ratio, xxx, there was to be substituted the Volksgeist xxx.Law, on this view, is essentially Volksrecht: it is the product of each nation, of the national genius. xxx.(id., 91-92).

Prof. Barker, summarizing the theory of the historical school, writes that the roots of the historical school may be traced to "the Romantic movement xxx as early as 1770"; that the historical school is "a philosophy of the Folk (people)" expressed in folk songs, folk tales, language, and literature.

FOLK-SOUL AND FOLK-MIND

The German word Volks means sambayanan, people or nation. Volksgeist means the diwa ng sambayanan.Volksrecht means kautusan ng sambayanan.

Filipino legal-philosophy author Prof. Pascual summarizes the volksgeist and volksrecht thus:

The folk-soul, i.e., the life and spirit of the people, which is the basic foundation of historical jurisprudence, provides a sense of beginning and unfolding of law.xxx .And in relation to positive law, the concept of the folk-soul takes on the form of a theory of what positive law ought to be, which is to say that positive law should be a reflection of the common consciousness and spirit of the people.In the words of Emil Lask, even social values proceed from the substratum of the folk-soul.

From the observation post of historical jurisprudence, the law is not universal, that is to say, there is not only one and the same law for all peoples everywhere. xxx.(Law) is only national;it is xxx oriented to the time, place, character,a nd individuality of a particular people.The reason for this is that social milieu varies from time to time, from place to place, and from people to people.Like a people's language and other cultural attributes, which are not found in others, the law is the product of the genius or intelligence of that group of people.In the words of Sir Henry Summer Maine, the acknowledged leader of historical jurisprudence in England, the law is the product "of the huge mass of opinions, beliefs, superstitions, and prejudices of a people produced by institutions of human nature reacting upon one another.In different words, law of a group of people is peculiar only to that group.xxx.

OBLUTIACS: ACRONYM FOR THE ELEMENTSOF VOLKSGEIST AND VOLKSRECHT

Constituting the folk-soul or folk-mind of a people are their OBLUTIACS, an acronym which, according to Prof. Pascual, means the people's:Opinions, Beliefs, Longings, Usages, Traditions, Idiosyncracies, Arts, Customs, and even Superstitions.(id.).

PHILIPPINE FOLK-SOUL AND FOLK-MIND

Applying the analytical perspective of the historical school to the origin, growth and development of Philippine law and jurisprudence, this Report extensively quotes Prof. Pascual on his discussion of the elements of the folk-soul:

The folk-soul is composed of several elements. Each element is a treasury of the national character of the people.Together they form the common consciousness and intelligence of the people.Together they reveal the people's cultural identity. xxx.

1.Folklore

This element is composed of the beliefs and traditions of a people.They constitute of the folk learning or folk wisdom (paniniwala) xxx.

The folklore may survive in the form of epic tales, which are very rare. A good example in the Philippines is the epic of Ibalon, xxx an ancient narrative of the various phases of the early life in the Bicol region during the reign of Handiong. xxx.There are others, like the Darangan, notably the Indarapatra, the epic of the Muslims of Lake Lanao;the Biag ni Lam-ang, the epic of the Ilocano region;the Tuwaang of the Bogobos of Davao; the epic of the Bornean colonizers of the Island of Panay, which is recorded in the Maragtas, where Datu Sumakwel's code of laws is found. xxx.

But a great deal of people's beliefs and traditions have survived in the form of telling parables (talinghaga) and riddles (bugtong).

2.Folksaying

This element of the folksoul is composed of the opinions xxx, the rural reflections of a people.xxx.

The folksaying is composed of the proverbial maxims (salawikain) and sentiments (sabi) of the people.Maxims are short pithy statements containing a general doctrine or truth. Sentiments are more or less the settled sense of the people.

3.FolkwayIt is composed of usages and customs.Folkways or kaugalian are rational and widespread habitual courses of actions or practices (ugali) which have been followed and enforced by a group of people. xxx.

Thus in the early times, folkways provided the first sources of rules xxx.The obligatory nature of the folkways stems from the deep-seated desire of the members of the group to keep the respect and esteem of the group by upholding them. xxx.Thus, folkways or kaugalian have become definite norms of activity and conduct. xxx.

4.FolksongThis form of expression of a people's interests and feelings contains their rejoicings (diyuna),lamentations (panaghoy),longings (mithi),and aspirations (adhika). xxx.

5.Folkdancexxx It is possible that they were regarded as religious ceremonies in the beginning. xxx.

xxxThere are appropriate folk dances dedicated tot he people's object of reverence and awe; folkdances which have to do with ceremonials like war or hunting; folkdances connected with celebrations or play like wedding or thanksgiving; folkdances related with work like planting and harvesting; and folkdances which have to do with love and affection like dances of courtship, rejection, or fertility. xxx.

6.Folkart

This category, broadly known in Pilipino as sining, is composed of the skill and art peculiar to a people. xxx. To a great extent the first objects were basically utilitarian or symbolic. Later came the objects of beauty and color. xxx.

BACKBONE OF THE HISTORICAL SCHOOL

Pascual writes that from the viewpoint of the historical school there are two important points that stand out:

First, the state is regarded as the highest expression or personification of the volksgeist or diwa of the people. Second, the law lis found and not deliberately made.(id., 86; original underscoring by the author).

THE STATE: HIGHEST PERSONIFICATION OF THEFOLK-SOUL AND FOLK-MIND

As human relations progressed from family or clan to community and further to large-scale territory,a sense of national awareness grew among the people, "where the individual, without shedding his narrower relationship with his family and region, became related, and, in certain instances, even subordinated, to the national interests." (id., 87).

Following the above-mentioned pattern of expansion of human relations of the people, the process of keeping peace and order grew apace with it. At the family-clan level, a direct appeal to the head of the family or clan was enough to resolve human conflicts.As progress continued, something like a communal type of dispute resolution mechanism emerged.Eventually, as progress became more complicated, the pattern of dispute resolution and maintenance of peace and order gave way to the more complex machinery of the body politic, i.e., the State with a national government, where the reins of government were placed in the hands of,and practiced by, a professional group in the community and where the people were bound by common centers of interests and purposes.

xxx The State is thus considered as the highest expression of the folk-soul or diwa of a people.Indeed, it is the highest national structure erected by the socio-political development of the people. In another way of saying it, the body politic is considered by historical jurisprudence as the final juristic personification of a nation or people.(id., 87-88, citing Prof. Puchta, who wrote that "the institution of the State is the highest act of a people.").

A COMPENDIUM OF THE VARIOUSSCHOOLS OF THOUGH IN LEGAL PHILOSOPHY

Law is evolutionary; it arises out of customs and traditions; and it develops like language. This is a basic postulate in the historical school of law.Legal philosophy is rooted in the history of philosophy itself. When one studies the philosophy of law, he is forced to study the history of philosophy itself. Philosophy means "love of wisdom."The ideal law or legal system is one that is rooted in wisdom, reason and truth--as against force, sanctions, and power. Law and justice are all about wisdom, reason and truth.There is a need to discuss the salient thoughts of the other schools of legal philosophy which have emerged from the Greek period, the Roman period, the Medieval period, the Reformation period and the Modern period. They, too, have their individual shares in and contributions to the growth and development of the legal and philosophical systems of mankind.

A.POSITIVIST SCHOOLThis school of thought developed at Yale, Oxford, and Cambridge beleves that there is no law unless it is promulgated by the State. Law is written down and explicit.The earliest codified Roman laws were the Jus Civilis, which was applicable to Roman citizens, and the Jus Gentium, which was applicable to the legal relations of Roman citizens with aliens ("perigrino")--both of which were administered by a "praetor" or a judge.Emperor Justinian's greatest contribution to the growth of the legal system of the world was his codification of all Roman laws. The Romans made law systematic, as in the areas of family, persons, contracts, slavery, etc.During the Reformation Period, the world saw the rise of Protestant philosophers. Today (modern period), the world saw the rise of the sociological school, the functional school, and the school of modern legal realism.The foremost proponent of the positivist school of law were Austin, Kelsen and Hobbes. Dura lex sed lex expresses the meat of the positivist school of law.To Austin, law is objective, authoritative, commanding, and empirical. It is the expression of the will of the state. Natural law and moral law do not matter.Law is not a moral concept. It must be free from metaphysical speculation. It is not made by God but by a superior sovereign. Law is the conscious will and command of the sovereign imposed on the subjects, who are liable to suffer penalties in case of violation thereof (authoritative enforcement system).To Kelsen, law is created by acts of men, not by God. For law to be stable, it must be based on empirical science, not metaphysics. It must be made as exact and as objective as the science of mathematics. In his "pure theory of law,"Kelsen argued the removal of moral connotations and value judgments from law, i.e. of all non-legal elements. Law may be prescriptive, authoritative, permissive, or normative. Law is a positive norm of conduct, hence, it is uniform for all.Coercion and sanctions enforce law. In his pure theory of law, the focus is on "the law as it is", not on what it ought to be. Law is objective and precise, not subjective.

B.IMMANUEL KANTKant was an advocate of the natural law theory. An advocate of human dignity (man as end in himself), supremacy of reason andfree will (as God-given and inherent in man), equality, freedom, and mutuality of rights, and universal law of morality.It is reason that makes law and obeys law.Man knows what is natural right or natural law because he is rational and the precepts of natural law are inherently written in his heart and mind (conscience)."Practical reason" (the "good will" in man; the "empirical imperative") that makes law and compels the conscience of man to obey the law. Duty (to obey and revere the law and to do good to fellow men) is the highest virtue.Doing an act not out of "duty" (good will) is immoral, though it may be legal.His ideal society is one where all men possess the virtue of duty to do good.Man is a moral individual.He is not a chattel. Moral rightness is a matter of "motives" and legal rightness refers to "external acts."In his Metaphysics of Ethics,Kant wrote, "Every action is right which in itself, or in the maxim on which it proceeds, is such that it can co-exist with the freedom of the will of each and all, according to a universal law."Kant criticized Rossaeu's social contract theory because Kant believed that human rights are not contracted but are inherent in man (dignity, freedom, equality).In a sense, Kant and St. Thomas agree that law is based on reason for the common good; that law is universal; and that natural law is inherent in the heart of men.

C.FUNCTIONAL SCHOOLThe functional school of law developed in the United States. It focuses on the question: "Will this law work?"Law is one of experience.It is also called the "theory of sociological jurisprudence", "sociology of law,"or "social science school of law."It focuses on the "operation and effects" of law in relation to the interests of society.The "interests of society", not the folk-soul or the pressures from the powerful elite,is the source of law.Montesquieu wrote that law is an evolutionary process.Law is a tool for the "balancing of interests" in society. It is a tool of "social control" or "social engineering."In a sense, it adheres to the tenets of "pragmatic ethics" or "ethical relativism" as it aims to serve the interests of society with the least friction.It adheres to, and is actually a type of, "legal positivism" and "legal realism."The main factors that define the law are expediency and the convenience of society.Its main proponent is Dean Roscoe Pound.There are three kinds of interests: individual, public, and social (or jural). All of these must be considered in the "legal ordering" of society (private rights and obligations vs. social interests).Since not all social conflicts can be compromised, some interests must give in. In social engineering, where compromise fails, the tools of arbitration, judicial action, purposive legislation, and decisive executive action must come in.The greatest good for the greatest number, or "social utilitarianism," is the main guidepost of the functional school. Law is pragmatic and dynamic.

D.MODERN LEGAL REALISMIt is sometimes called "social legal realism,""modern legal realism," "American legal realism,""theory of ethical and legal pragmatism (empiricism) and experientialism."Its proponents were Sanders, Dewey, Storm and Holmes.It believes that the law is what the courts say it is. Unless a case arises out of the interpretation and enforcement of a written law, there is no law because there is no judicial interpretation. A law is merely a law on paper unless a case arises to interpret it.Law is pragmatic, empirical and scientific. It is also relative, flexible and dynamic.The source of law is the social experience of the people. The school of modern legal realism criticizes the natural law school or the philosophical school because it believes thatlaw has no metaphysical source. The end of law is "social contentment".It is an instrument of social control.It focuses its study on "the law that is", not on "the law that ought to be."Moral norms and natural law postulates do not decide court cases or determine social behavior. As stated earlier, the law is what the courts say it is and how the courts interpret and apply it (jurisprudence).That is the true source of law and the nature of law.Fact-finding is the most difficult and the most crucial task of courts. The judge, who determines and applies the law, is a real person, an imperfect human being, with biases and prejudices, and affected by all kinds of "metalegal stimuli". He is subject to all kinds of real socio-psychological pressures.In modern legal realism, congressional acts are not law but are a source of law. It is the adjudicative process of the judiciary which defines, interprets, and applies the law.In this school of thought, the emphasis is on the judicial process.Justice is equated with equality. The official promulgation of a law is not necessarily equal to the justness of its contents.Out of this school rose the "critical legal studies movement" in the United States, which, influenced by modern radical social theories, looked at law as being imposed by the ruling class or elite in society who controls the tools of production.The movement advanced the vision of positive equality (free open society), with law as an expression of the folk-soul of the people.The movement criticized the doctrine of stare decisis because it entrenched existing injustice in the legal system and that it protected the ruling elite. It argued that there were "indeterminate factors" in the judicial process which influenced the dynamics of law.It assailed courts for moving from legal analysis and reasoning to law-making (judicial legislation and judicial activism).It argued that legal objectivism and legal formalism (legal positivism, the coldness of the law, and the doctrine of dura lex sed lex) did not serve democracy and justice and that many legal procedures, rituals, formalities and technicalities impeded the administration of justice and alienated the people from the justice system.It exposed the weaknesses of the idealistic concept of democracy, i.e. popular democracy versus elitist democracy, and it called for the democratization of republicanism.

E.MARXIST OR COMMUNIST SCHOOLKarl Marx applied Hegel's dialectical method. He was the proponent of "dialectical materialism."From this theory proceeded the concepts of "class struggle" (laborers versus capitalists), supremacy of the State, and the inevitability of war among capitalist states caused by competition, greed and technology.Arguing for collectivism and centralized economic planning, Marxism identifies with the proletariat (workers).There is a perpetual struggle between the productive forces (labor) versus those who control the tools and modes of production (capitalists).Human history is the history of class struggle, class antagonism, and the exploitation of one class by another.Marxism calls for the absolute abolition of private property. Wage labor does not create property but it begets capital for exploitation by the capitalists.Three major theories predominate Marxism: historical materialism, surplus value, and class struggle. Historical materialism provides that the economic system is the infrastructure of the political system (economic determinism). The theory of surplus value provides that labor is a commodity that creates surplus value which is exploited by capitalists.The theory of class struggle provides that only the working class can destroy the old system and ultimately create a classless society.Law is a productof the economic system of society. The ruling elite (capitalists) determine, define, fix and impose the law on the exploited working class.When the working class shall have ultimately succeeded in destroying the old system, a classless society will be born, and state and lawwill "wither away" (utopia). In the interim (socialism),the state must keep class conflicts within bounds of order (hence, the need for centralized economic and political planning, with one political party in control of the state whose vision and mission are to serve the interests of the working people).Lenin wrote that state and law are instruments of class oppression."The workers must destroy the state, and not simply seize it."In the transitional stage, the "dictatorship of the proletariat" is necessary to smash the control of the capitalist class.When utopia is achieved, the people govern themselves (self-government), class struggles ends, classless society is created, state and law wither away, communal life rules human relations, and the state owns all means and modes of production.

F.POLICY SCIENCE SCHOOLThe policy science school of law developed at the Yale School of Law. Expounded by Lasswell and McDougal (Yale University), the policy science school argues law is not a mere body of rules, that it is a continuous process of democratization of social values, that it is a means for the equitable distribution of the social values, and that the seven basic social values (power, knowledge or enlightenment, respect, income or wealth, safety and health, liberty and equality) should guide law-making and the legal ordering of society. These values are translated by means of policy guidelines of the state.The policy science school is thus an advocacy of social values.

G.NATURAL LAW PHILOSOPHYThe natural law school of legal philosophy was advocated by the Catholic Church and its theologians, foremost among whom was St. Thomas Aquinas. The Catholic Church dominated the medieval period and it had the best opportunity to develop the philosophy of natural law during such period.St. Thomas wrote the voluminous Summa Theologica.He described natural law as the participation of man in eternal or divine law thru his gift of reason.A law which is contrary to divine law is no law at all. A law is obeyed because of the persuasion of reason (reasonableness test).St. Thomas adopted and christianized the thoughts of Aristotle, a great Greek philosopher.The precepts of natural law are inherent in man and are written by God and reason in his heart, e.g. the quest for justice, dignity, compassion, freedom, truth, love, equality, and peace.

H.HEGELIAN PHILOSOPHYImmanuel Kant influenced Hegel in his philosophy of law.Like Schelling and Fichte, Hegel was an "speculative idealist" and an advocate of rationalism: "Whatever is rational is real and whatever is real is rational." To him, reason is the ultimate essence of the world or absolute reality.Every concept leads to its opposite (thesis-anti thesis-synthesis) and that there is an unending progress from thesis to antithesis and to synthesis, the latter being the reconciliation of thesis and antithesis on a higher level. This is called the "dialectical method" (the triadic process).To Hegel, ethics culminates in the state and the state is the ethical idea and reason turned into reality: "In the organization of the state, ... the divine enters into the real."The state is a manifestation of the divine will. He wrote that all history is an evolutionary process whoseultimate goal is true liberty, and that liberty is only possible in a state, where man reaches his dignity as an independent person.He agreed with Roussaeu that in the "true state" it is the "universal" (the law) that governs and "the individual of his own free will subjects himself to its rule."It is part of the concept of man that he is free, Hegel wrote.The paradox was that in his latter years, he opposed the democratic or republican form of government because of its "subjectivism and atomism."He preferred the authoritarian state.Hegel justified war or revolution based on and as an application of the dialectical method (struggle of ideas).

I.JURAL AND NON-JURAL LAWSJurisprudence is a science of how the law is applied by the courts. It answers the question: What does the court say? Its basic foundation is the doctrine of stare decisis.The United States and the United Kingdom, being of common law origin, are precedent-oriented, while most countries in Europe, which are of positive law origin, are code-oriented.Jural law is the "lawyer's law" enforceable in court, e.g. statutes, administrative rules and regulations, opinions of jurists, private contracts, and court decisions.Non-jural law is the "unwritten law", e.g., customs and traditions, which may not be enforceable in court and yet influences the way jural law is applied by the courts. Divine law, moral law, natural law and the folk-soul of the people may be said to belong to the category of non-jural law.

Legal Philosophy is the scholarly study of the law, legal theory, and legal sytems in general. Also called jurisprudencia universalis or simply jurisprudence

Nature of Jurisprudence

A. Proemium Case Law the law to be found in the collection of the reported cases that form all or part of the body of law within a given jurisdiction.

Jurisprudence (legal theory) deals with the general philosophy of law, which is the nature and elements of law. It is concerned with the theoretical and technical aspects of law as a discipline.

Nature of Law is concerned with its derivation, development, and trust Elements of the Law deals with the concepts which are material to the legal ordering of society, namely:

1. State 2. Sovereignty 3. Legal relations 4. Legal persons5. Legal facts 6. Legal things

B. The Problem Stated

1. What is the nature of the law? (Socrates)

2. Why is jurisprudence worth studying? (Cicero) What should be done -- Orchestrate the sounds of different schools of jurisprudence concerning the nature of the law.

How may the nature of the law be fully appreciated 1. Systematic understanding of the essence of the different theories2. Rationalizing differences whenever possible 3. Emphasizing harmony 4. Making allowances for the areas where they overlap 5. Balancing the ideas that have led to undue emphasis in one direction or another

. The Different Schools of Jurisprudence

1. The historical school appraises the law in the context of the common consciousness of a group of people.The question this school seeks to answer:Where did the law come from and how did it evolve?

2. The teleological school thinks of the nature of the law in terms of the moral and rational nature of humankind. This school understands the law as strictly connected with morality and naturality.The question this school seeks to answer:What is the telos of the law?

3. The positivist school considers the law as a conscious norm of the state backed by its authority and force. For this school the law is not inherently moral or natural.The question this school seeks to answer:What is the distinctive structure and content of the law?

4. The functional school views the nature of the law in terms of the jural postulates, social interests and national policies of the people.The question this school seeks to answer:How does the law work in weighing or adjusting the competing individual and public interests?

5. The realist school takes the nature of the law on the basis of the on-going experiences and inter-experiences of people.The question this school seeks to answer:Is the law verifiable in the practical life of the people?

6. The policy science school looks at the nature of the law in relation to the degree of success of society in the creation, clarification and realization of social valuesThe question this school seeks to answer:What is the basis and limits of global, regional and national legal orders in relation to social values?

2. Law in General Law is any rule of action or order of sequence from which any beings whatsoever either will not, or cannot, or ought not to deviate.

A. Rule of action - any warrant, instruction measure, regulation, or decision governing any act, conduct, transaction or proceeding, including its consequences. Example: (1) a traffic regulation promulgated in accordance with a city or municipal ordinance. (2) A statute enacted by the legislature pursuant to its legislative powers in the constitution.

Two important points that should be noted

(1) Conduct is included in the definition this is necessary because there are certain conduct that are productive of distinct legal effects and consequences (such as forbearance which means intentional refraining from action)

(2) They continue to apply with their sanctions in full force and effect even though they are repeatedly violated or remained unobserved.

B. Order of Sequence is any system of arrangement or consecutiveness, or any uniformity of a given group of phenomena. Mainly concerned with physical nature, order of sequence is also a law, such that any deviation therefrom results in inconvenience, damage or injury. They are immutable for they do not alter with time and place. And they are absolute for they do not depend on the human will but operate inexorably admitting of no exceptions. Example: (1) The numerals or integers this system of numerical arrangement or consecutiveness of the positional value of numbers cannot be unilaterally varied without harmful consequences. (2) The pull or drag of gravity is an example of uniformities --- uniformities of nature can be harnessed to good use but no human being can violate or change any order or norm of physical nature without harmful results.

C. Classification - Four Distinct Classes of RA and OS: (1) That which necessarily determine the activities of human beings(2) That which necessarily determine the motions and even the instincts of dumb creatures(3) That which necessarily determine the origin and growth of living organisms, which governs the development of all forms of life, from the simplest to the most complex(4)That which necessarily determine the movements and course of inanimate bodies or masses

D. Focal Point of Nondeviation

Three Types of Nondeviation

(1) Will-not category means that there is a determination to abide with, or avoid of. This force carries a connotation of future conformity, prospective agreement, or eventual compliance.

(2) Cannot category means that there is no other way but to obey or comply with the rules of actions and the orders of sequence, no matter how much the desire to act otherwise may be. This is indicative of a present or actual condition of conformity. This category is the force which gives the legal order the authority to try and punish lawbreakers.

(3) Ought-not category there seems to be an alternative to action, but such alternative is abandoned because it is the better part of prudence to follow or comply with rather than refrain from the following or complying with them. 3.

Jural Law

A. Particular Sense The term LAW refers to a statute: batas, ley, legge, lex, nomoi, loi, gezets

Statue - is the written enactment of the legislative branch of the government composed of definite provisions for definite situations to which certain incentives and/or sanctions have been attached as means of enforcement.

Legal Incentive is a stimulus or motive developed through some extraneous influence operating on the individual members of society. Ex. -- Tax exemptions, tax deductions, government loans, condonation of accrued taxes, government subsidies, benefits and rewards.

Legal Sanction a coercive intervention or an eventual punishment annexed to a violation of a rule or regulation. Ex. fine, imprisonment, destierro, loss or suspension of certain legal privileges, assessment of damages, cost and interest

May refer to any contract or agreement these covenants are binding in character and so the parties are said to be solemnly making law for themselves.

Law may also refer to any rule or opinion given by an agency of the state or by a jurist, or by an authorized official of the government.

Example of regulation formulated by an agency of the state

(1) a rule of civil or criminal procedure promulgated by the Supreme Court pursuant to its rule making power.

(2) Regulation issued by the Central Bank in accordance with its charter and duly published in the Official Gazette.

Example of opinion given by a jurist

(1) dangerous tendency by Justice George Malcolm of the Supreme Court of the Phils --- in the case of People vs Perez, as follows: there is a seditious tendency in the words used which could easily produce disaffection among the people with a disposition to remain loyal to the government and obedient to the laws and tending to disturb the peace of the community and the safety of the government.

(2) clear and present danger by Justice Oliver Wendell Holmes (USA Supreme Court) --- in the case Schenck v United States: the character of every act depends upon the circumstances in which it is done. . . , The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent

(3) no immediate decision by Justice Antonio Villareal (Phils SC) --- in Javellana vs La Paz Ice and Cold Storage Co.,Inc. it was held that the various motions for postponement amounting to a systematic method of blocking or delaying the ordinary course of the hearing of an application for a certificate of public convenience will justify the grant of a provisional permit to operate the public service applied for.

Example of opinion of a jurisprudent (1) A commentary on a particular branch of law --- the authority of an opinion or commentary is based on the scholarship of the commentator. It is presumed that the courts take into consideration only the opinions and commentaries of highly qualified persons.

Example of opinion of an authorized official of the government (1) Ruling or opinion of the Secretary of Justice, who is the Chief Legal Adviser

B. Collective Sense when the term law is employed a collective or aggregate term when (1) it refers to the gross or bulk of specific or particular laws relating to one subjectmatter, or (2) it refers to the laws obtaining in a given society.

Example of totality of laws relating to subject-matter (1) Civil Law (2) Commercial Law (3) Remedial Law (4) Criminal Law

Example of the use of the term law with reference to particular laws from a determinate source or origin --- Law of the Philippines

The Three Divisions are: (1) Laws defining rights and obligations (Substantive Law) (2) Laws defining remedies and procedure (Remedial or Adjective Law) (3) Laws defining rights and obligations in extra-ordinary times (Special Law)

Three Divisions of Law in Collective Sense: 1. Substantive Law defining rights and obligations

(a) Substantive private law(1) The law of persons and family relations defines the rights and obligations of persons living in a politically organized society regarding their personal and family relationships (2) The law of property defines the rights and obligations of persons living in a politically organized society in relation to property and property rights, including classes of legal things and proprietary concessions (3) The law of obligation and contracts defines the nature and source of claim-duty, privilege-inability, power-liability and immunity-disability relationships as well as the ones arising ex ques deleto (4) The law of trade and commerce defines rights and obligations concerning land, sea and air traffic, shipment and business transactions as well as ships and vessels, their crew and navigation.

(b) Substantive public law(1) Constitutional law deals with rights and obligations concerning the fundamental or supreme law of the land, more particularly the organization, powers and functions arising from the relationship of the state to the people (2) Public administrative law body of legal rules defining rights and obligations concerning the operation of the government both on its departmental and administrative functions and functions of public officers in relation to private persons as well as the law on elections (3) Criminal law deals with the rights and obligations in connection with crimes, criminals and punishments.

2. Remedial or Adjective Law defining remedies and procedure

(a) Adjective private law(1) Law on civil actions deals with the rules by which a party prosecutes another for the enforcement or protection of a right or the prevention or redress of a wrong (2) Law on special proceedings deals with the processes which are not pursued in the ordinary manner or procedure.

(b) Adjective public law the law of criminal procedure which deals with the rules defining legal remedies and procedures in criminal actions whether they take on the nature of prosecutions of public crimes or prosecutions of private crimes.

3. Special Law defining rights and obligations during extra-ordinary times

(a) Military law deals with the system of rules and regulations for the creation, government, and discipline of the armed force (apllies only to those who are in actual service) (b) Martial law deals with the system of rules and regulations applied by military power in times of war or in times of grave public danger (ceases when the situation has already turned to normal) (c) Public international law deals with the system of rules, regulations, and principles which govern the relations between sovereign states, and such other entities, not states, which are endowed with international personality. Pertains to relationships connected with states and international entities.

C. Abstract Sense the term law is simply referred to as law without the definite article preceding it. The central theme of the legal order in the adjustment of human relations is kautusan not batas, derecho not ley, diritto not legge, jus not lex, nomos not nomoi, droit not loi, recht not gezets> The law is made up of not only a body of precepts but also a body of innate and received ideals.

(1) Precepts deals with the prescribed directions and trends concerning a given subject matter. (a) Rules define or set the farthest limits of human activities and actions. Composed of definite provisions for definite states of facts to which certain definite incentives or sanctions or both are attached as means of enforcement (b) Principles are authoritative premises for legal and juristic reasoning when a question not governed or covered by a rule for adjudication. Do not contain incentives and sanctions. Their importance lies in the fact that they may become the basis of rules, concepts and standards. (c) Concepts are general categories into which specific cases and things may be classified. Examples are legal concepts on: 1. Possession 2. Agency 3. Contract 4. Intention 5. Consideration 6. Negligence This element of the law is important because it sets the materials of the law in proper order and symmetry, reducing the mass of rules into manageable size> (d) Standards are models or criteria to test or measure the validity of specific acts for the purpose of determining responsibility in the absence of specific rules. Examples of standards are the standards of fair competition, diligence, and good faith. 1. Standards of fair competition condemn acts characterized by force, intimidation, deceit, machination, or any other unjust, oppressive, or highhanded methods giving rise to a cause of action by the person who thereby suffers damage. The essence of fair competition is giving free and equal opportunity to all in order to make choice or decision and other transactions and enterprises or any lawful calling without restraint or intervention from anyone other than for causes which the law accepts and recognizes. 2. Standards of diligence (bonae pater familae / care of a good father of a family) is designed to minimize or prevent wrongful acts or omissions. Negligence is then simply the absence of diligence. 3. Standards of good faith the honest belief in the validity of ones right, ignorance of a superior claim and absence of intention to overreach another.

(2)Ideals (a) Juristic ideals rational theories which may reshape or change the contents of legal rules and legal precepts. Example: Ordered Liberty, constructed by Justice Benjamin Cardozo (US SC) in the case Palko v. Connecticut --- the rights guaranteed by the constitution to the people are valuable and

important but not all of them are of the very essence of a scheme of ordered liberty. This means that there are certain rights that can be withdrawn or abolished and yet to do so is not to violate the principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental. Examples are immunity from self-incrimination, immunity from double jeopardy (b) Ethical ideals are meant rational theories or syntheses of moral responsibility and decent individual and group behaviour where the aim is toward higher moral ground. It refers to what human conduct and expectations should be. Examples 1. Loving ones neighbour as set by Jesus Christ (basis of Tort rule that a person must not cause damage or injury towards another by taking reasonable care) 2. No one can enrich oneself at the expense of another (embodied in the rule that everyone who acquires or comes into possession of something at the expense of another without just or legal ground must return the same)(c) Political ideals are meant rational theories and syntheses for the fuller direction of the political processes and for the maintenance of the general welfare and security of the people. Examples 1. Un Moi Commun - Jean Jacques Rousseau posited the idea that general will resides in the people. Since general will is directed toward the common good then it is always just and should prevail for the voice of the people is the voice of God. This ideal was applied to Pavesich v. New England Life Insurance Company, and Metropolitan Service v. Paredes (Phil SC) stated that sovereignty is derived from the will of the people, by the people, and for the people (d) Economic ideals meant rational theories and syntheses for the efficient development of the economy. They refer to the economic goals for the betterment of supply of limited goods and services and their distribution to meet the enormous needs of the people.

4. Nonjural Law

A. Divine Law

(1) General Sense

(2) Strict Sense

B. Natural Law

(1) Historical Background

(2) Concept and Precepts

(3) Place and Function in Legal Order

a. Justificatory Use

b. Oppositive Use

c. Regulatory Use

d. Interpretative Use

C. Moral Law

(1) Moral Order

(2) Moral Norms

(3) Moral Law and Other Disciplines

(4) Moral and Social Norms

D. Physical Law

(1) Nature and Attributes

(2) Discovered Norms

(3) Distinguished from Jural Law

(4) Distinguished from Divine Law