General Principles of

1. Part III
Legal System
and
The Constitution
A.M. SALVA

2. The Natural World of Law
LAW – “ that which must be obeyed and
followed by citizens, subject to sanctions or
legal consequencies”. Deals with outward
acts and enforced by the physical force of
the State.
Right – refers to what is recognized and
protected by the law and can be enforced in
court.
Morality – concerned with inner motives
and intentions, and is enforced by public
opinion and one’s own conscience.

3. Natural Law
-considered a a highest law, a law which
is attributed to God or the Creator, and
higher than laws made by human.
Aquinas: “natural law is nothing else
than an ordinance of norm for the
common good”
Stoics & Judeo-Christian: “a necessary
course that nature drastically obeys, with
no distinction or qualification made
between moral and physical law”

4. Schools of Law
1. Positivist School. John Austin (1790-
1859)
2. Scientific or Pure Science School.
Hans Kelsen (1881-1973)
3. Historical School. Friedrich Von
Savigny
4. Sociological School. Eugene Ehrlich
(1862-1992)
5. Functional School. Roscoe Pound
(1870-1964)

5. Schools of Law
1. Positivist School. John Austin
(1790-1859)
Law is viewed as a relationship
existing between the superior leaders
and the governed. The element of
authority is what keep a law binding
among the people.

6. Schools of Law
2. Scientific or Pure Science School.
Hans Kelsen (1881-1973)
Law is a command not directly
from a sovereign body but from the
basic norm of the people. Legal order
is the first hierarchy if control from
which all other norms emanate.

7. Schools of Law
3. Historical School. Friedrich Von
Savigny
Law is the result of unconscious
development finding its roots in the
instinctive sense of the right of the
people, which manifest it in external
acts as it appears in practice, manners
and customs.

8. Schools of Law
4. Sociological School. Eugene Ehrlich
(1862-1992)
Law as the chief attribute of
society. It emphasizes the relationship
between law and social needs and
institutions. However, popular
acceptance is necessary before it can
become a true law, to the extent that
custom gains social approval, it also
gains the approval of sociological
jurists.

9. Schools of Law
5. Functional School. Roscoe Pound
(1870-1964)
The function of law is to balance
conflicting individuals or social
interest in order to achieve the
maximum of want with the minimum
social friction.
That one can not understand what
one really is without studying what it
does.

10. Different Legal Systems
EMIL DURKHEIM: “Law is the set of
rules that binds a society together.
Law is what made man organized in a
human polity”.
Law developed over time, gradually
urbanized into varying legal systems
and varied types of government.

11. Different Types of Law
1. International Law
2. Civil Law
3. English Common Law
4. Roman Code Law
5. Sharia Law

12. Different Types of Law
1. 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.

13. Different Types of Law
2. Civil Law – regards the primacy
of statues and codified laws; provide
redress for private individuals or
corporation who feel injured;
regulates relations between people
(inheritance, marriage, property,
bankcruptcy, etc.)

14. Different Types of Law
3. English Common Law – used
in US and Britain, it is based on
customs and traditions common to all
citizens. It also evolved from judges’
decision as precedents as they
mature into a ‘predictable legal
environment’.

15. Different Types of Law
4. Roman Code Law – it dates
back to Justinian Roman Emperor
(527-565) known for its classification,
order, uniformity, and inflexibility. It
blended the elements of logic with
experience.

16. Different Types of Law
5. Sharia Law – Islamic law based on
the set of rules for general conduct
developed over the first centuries after
the death of Mohammad. It centers on
obligations to God and to other people
rather than on any sort of rights or
entitlements, based on Islamic
principles of justice, good deeds,
equality and human brotherhood.

17. Sources of Law
1. Legislation
2. Precedent
3. Custom
4. Principles of Justice and Equity
5. Decisions of foreign tribunals,
professional opinions of competent
Judges, legal scholars, and religion

18. Sanctions of State Law
1. 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.

19. Branches of Law
1. Public Law – Concerned with the State
in its political or sovereign capacity,
including constitutional or administrative
law. Concerned with the definition,
regulation, and enforcement of rights in
cases where the State is the subject of
right or object of duty. It covers Political,
Administrative, Criminal, Penal and
Constitutional Law.

20. Branches of Law
2. Private Law – Governs the private
relations between citizen and citizen, or
the definition, regulation, and
enforcement of rights in cases where
both the person in whom the right
inheres and the person upon whom the
obligation is incident are private
individuals.

21. Legal Rights
Philippine Civil Code: Rights may be
waived provided they are not contrary to
public order, public policy, morals or good
customs, or prejudicial to third persons with a
right recognized by law to demand
compliance from any persons, corporations
or institutions.

22. Legal Rights
Four Basic Elements
1. Active subject – refers to the person
whom the right emanates
2. Passive subject – refers to the person
against whom the right is available
3. Object – refers to a thing or property over
which the right is exercise
4. Prestation – refers to the duty of another
to act or forbear on what is legally prescribed
or prohibited.

23. Legal Rights
“Right” – The capacity, privilege, power
and immunity of the possessor. It enables
a person to exercise such capacity. It is
the power to do acts with juridical effects.
Gamboa (1990): There can be no right in
favor of one unless there is a duty on the part of
another. There can be no duty on the part of
one without a corresponding right residing in
favor of another.

24. Classification of Rights
1. Personal Rights (Rights in Personam)
2. Real Rights (Rights in Rem)
3. Positive Rights
4. Negative Rights
5. Perfect and Primary Right
-------------
“ignoratia legis neminem excusat”
– ignorance of the law excuses no one from
compliance therewith. The law applies to all
without distinction.

25. Application of the Law
i) 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.

26. The Constitution
A constitution is a written
instrument by which the fundamental
powers of government are established,
limited, and defined and by which
these powers are distributed among
several departments, for their more
safe and useful exercise, for the
benefit of the body politic.

27. The Constitution
Maddox and Duchacek (1997) – a
typical constitution contains four parts:
1. A Preamble – delaration of principles
2. An organizational section - sets the
Constitution of the Government
3. A bill of rights - sets the Constitution of
Liberty
4. Procedures for amendment

28. Constitution in Democracies
US – the oldest and probably the best
written democratic constitution to which
many developing democracies anchored
their present fundamental laws.
Britain – has no written constitution, but
by custom, law precedent and tradition
are so strong that the British government
considers itself bound by practices that
have developed over the centuries.

29. Constitution in Democracies
USSR – adopted likewise explicit
constitutional provisions in theory, which
does not necessarily translate into actual
practice. The Communist Party controlled
the government with diminishing authority
given to the state or to the legislature, and
individual rights and freedoms were
restricted on the basis of how their leaders
interpret them. considers itself bound by
practices that have developed over the
centuries.

30. 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.

31. 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.

32. Constitutions and Statutes
Constitution – the main organic
authority, a direct legislation from the
people carried through a plebiscite.
Statutes – those that are passed by the
Congress and approved by the President
to lay down the specifics of the general
law (Constitution).

33. Constitutional Law
Justice Dicey (1960): “The absolute
supremacy or predominance of regular laws
as opposed to the influence of arbitrary
powers…it means, again, equality before the
law or the equal subjection of all classes to
the ordinary law of the land” (Haque, 2002)
The Rule of Law is the principle that
the law should rule according to the
established framework to which all conduct
and behavior conform.

34. Constitutionalism
The doctrine that states should be
faithful to their constitutions because the
rules so provided are all that can protect the
citizens from arbitrary decisions by powerful
people.
It refers to the degree to which the
power of a government is limited and
individual rights are respected.

35. 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 as
the basis of social, political and economic order of State.

36. Methods of Establishing a
Constitution
1. Constitution by Revolution. Came into
being by means of people’s uprising.
Whenever all peaceful means proved futile
to reform or change a rotting system, a
radical transformation of social order shall
then ensue.

37. Methods of Establishing a
Constitution
2. Constitution by Evolution. Came as a
product of historical process, by long
acquiescence to the continuously growing
political practices, recognized by people as
legally binding. Britain’s constitution has been
a history of quiet change, slow modification,
and almost unconscious development.
Changes in its spirit occurs from century to
century and brought about so gradually that
the process of change has hardly been
perceptible.

38. Methods of Establishing a
Constitution
3. Constitution by Grant. Came into being
whenever a ruler by himself promulgated a
formal instrument or legal document in which
he clothed himself to exercise political power
with deliberate acceptance on his part.
Examples: Meiji Constitution of Japan; the
Constitution of France by Louis XVIII

39. Methods of Establishing a
Constitution
4. Constitution by Creation. Came into being
whenever the people decided to do so in a
manner consistent with legal requirements. In
the Philippines, either thru:
i) Constitutional Convention. The people
must choose delegates to draft a constitution;
ii) Constituent Assembly. The present
members of the legislative house constitute
themselves as an assembly with the purpose
to draft, revise or amend the constitution.

40. Classification of Constitution
1. As to Origin. It is either enacted or evolved.
i) an enacted constitution – when it is a
product of tedious legislation by a constituent
assembly or a constitutional convention.
ii) a constitution is evolved or
comulative – when it is a product of long
political and cultural history of the people from
generation to generation drawn from customs,
traditions, norms and values, precedents of
judicial rulings etc.

41. Classification of Constitution
2. As to Form. It is either written or unwritten.
i) written constitution – It is codified,
expressed, and formalized. Its essential
characteristics are: i) clarity of thought; ii)
brevity of words; and iii) broadly organized.
ii) unwritten constitution– A product of
political evolution, basically from social
customs, traditions, values and judicial
decisions, with some parts codified. (Britain)

42. Classification of Constitution
3. As to Amendment. In response to changing
needs over time. It is either rigid or flexible.
i) rigid constitution – It is difficult to
amend since it follows an enormous process of
ratification by the electorate thru plebiscite.
ii) flexible constitution– The manner
simply requires the basic procedures in which
a law may be changed, amended or repealed
under same legislative process as in any
ordinary law.

43. Constitutional designs
observed in amendment
i) 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.

44. Interpreting and Constructing
Whenever a law is clear and not
ambiguous, it should be read and understood
precisely from its words and letters.
Interpretation is resorted only to
understand the written legislation or simply the
explanation of the law itself.
Constructing a constitution or a law
evokes and gives light to the very nature and
intent or the spirit of those who wrote it, and of
the people who ratified it.

45. Constitution and Statutes
Constitution – A direct legislation from the
people thru a plebiscite. It is the people who in
their sovereign capacity, wrote and approved
the constitution of the land.
Statues – Those laws passed by Congress
and approved by the President. A subsidiary
to the supreme law, statues are legislated by
the people’s representatives in Congress, and
are enacted to address existing conditions of
the constituency.

46. Next:
Part IV
Democracy, Authoritarianism and
Totalitarianism

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