Introduction to Law by Gamboa 1969 SBCA 2021-2022
Chapter II. The Sources of Law it has found strong advocates not
Legislation only to statute-law countries, but also
consists of the declaration of legal countries whose main source of law
rules made by a competent authority. is not a legislation but custom and
as a country progresses, custom precedent.
recedes and legislations advances.
it is the pre-ponderant source of Pheremy Bentham
Philippine Law an English philosopher and jurist,
Note: Laws that are derived from started a project in the early part of
legislation are called enacted law or the nineteenth century of codifying
statute law. the English law.
Believed in reducing all the rules of
Characteristics of Statute Law the common law to moderate
it purports to be a direct command of compass in a code, so that an average
the state speaking through its layman could examine the code
legislative organ without an aid of a lawyer and to
it is stated in definite and precise find exactly his rights and duties in a
terms, and particular case.
as a rule, it operates on a case after it
has happened. Corpus Juris Civilis
Note: Legislation as a source of laws Most famous codification in the
supreme. The only limitations are those history of Justinian in the sixth
set by the constitution. An act passed by century.
the legislative beyond these limitations is It is the collections of laws and
not a valid statute in the United States legal interpretations developed
and the Philippines; thus, doctrine does under the sponsorship of the
not obtain in England. Byzantive Emperor Justinian I
from 529 to 565 ce.
Codification
a systematic body of rules dealing
with one subject or branch of laws
Introduction to Law by Gamboa 1969 SBCA 2021-2022
Codification in modern times into conformity with the customs,
Codes of Napoleon of France (1803) traditions, and idiosyncrasies of the
Italian Civil Code (1865) Filipino people and with modern
Spanish Civil Code (1889) trends in legislation and the
German Civil Code (1900) progressive principles of law.
Swiss Civil Code (1907) Composed of five (5) members
headed by Dr. Jorge Bocobo, he
Codes in the Philippines submitted the draft of the Civil Code
Revised Penal Code (1930) on January 1948, the Civil Code was
Code of Commerce (1885) approved on June 18, 1949 as
Code of Civil Procedures (23rd of Republic Act No. 386. It took effect
March 1859) one year after its publication in the
Codes Criminal Procedures (1861) Official Gazette.
Revised Administrative Code (1987)
Precedent
Denominated Codes in the Philippines The life blood of the common law of
Agricultural Land Reform Code England.
(1963) Refers to a court decision that is
National Internal Revenue Code (1st considered as authority for deciding
of January 1998/1997) subsequent cases involving identical
Customs and Tariffs Code (1957) or similar facts, or similar legal
Revised Election Code issue.
Land and Transportation Code (20th The doctrine of precedent means that
of June 1964) a decision becomes not merely a
guide but an authority to be followed
Code Commission by all other courts of equal or
Enacted on the 20th of Marc 1947 by inferior jurisdiction in all cases
Executive Order No. 48 in the view involving the same question, until
of “the need for immediate revision the decision is reversed or overruled
of all existing substantive laws of the by a court of superior jurisdiction.
Philippines and of codifying them
Introduction to Law by Gamboa 1969 SBCA 2021-2022
Note: The Court of Cassation in Many people agree that this is the
France and the Reichsgericht in most important source of the law.
Germany are regarded with such high Sivigny
respect by the lower court. But the The founder of Customs expounded
French Court of Cassation may the theory that law exists in the
reverse its previous decisions, and the common consciousness of the
German Reichsgericht may also do so people, that it grows in the same
under certain conditions. manner of language and that it
manifests itself in the customs of the
Stare Decisis people.
In our jurisdiction this doctrine is not
recognized in the same sense that it Requisites of Customs
obtains in England and other case-law It must be universal; that it must be
countries, although the new Civil generally observed
Codes provides that “judicial decision It must have been observed as of
applying or interpretating the laws or right.
the Constitution shall form a part of It must have been practiced from
the legal system of the Philippines” time immemorial.
This provision refers only to
decisions applying or interpretating General Principles of Justice and other
already existing laws; Sources
In case that there is no statute or
Two (2) doctrine of Stare Decisis precedent clearly applicable to the
The principles laid down by the point at issue or if the law is
judges in their decisions are indeed doubtful, ambiguous or conflicting,
law, but they are the law, not because the judge may apply the custom of
the judges laid them down. the place.
The rules laid down by the judges are A judge is free to refer to decisions
not merely the expression of pre- of foreign tribunals especially if the
existing law, but the law itself. case before him involves a law
Customs
Introduction to Law by Gamboa 1969 SBCA 2021-2022
which has been borrowed from Written laws are laws which have
foreign jurisdiction. been enacted in the constitution or
The principle of justice could be in legislation. Prescribed by
described as the moral obligation to competent authority in a formal,
act on the basis of fair adjudication express manner.
between competing claims. As such, Unwritten laws are laws which are
it is linked to fairness, entitlement not contained in any statutes and can
and equality. In health care ethics, be found in case decisions. A rule set
this can be subdivided into three down by the proper court as
categories: fair distribution of scarce precedent although it is in fact
resources (distributive justice), printed in the reports of the courts.
respect for people’s rights (rights This is known as the common law or
based justice) and respect for morally case law.
acceptable laws (legal justice)
Chapter III. Law and the State
Case Law and Statute Law Nature of the State
Case law is the result of a continuous There is no unanimity among jurists
and silent growth and is as to which proceeded the other, the
consequently wonderfully adaptable law of the state.
to the changing conditions of the A state maybe described as an
times, association of human beings
Statute law is rigid more or less occupying a definite territory,
stereotyped. It provides the short-run permanently organized for political
written law it is also set by state, ends.
federal and local legislator. A state is a sovereign people, or a
Interpretating it to the court has nation, which is a natural group
resort to the very words in which it is linked by ethnological or racial
enacted. bonds. But the state is not the only
artificial association of human beings
Written and Unwritten Law – a trade union, or a political party,
Introduction to Law by Gamboa 1969 SBCA 2021-2022
for instance is also an artificial
association of men.
Classes of State
A unitary state is one which is not
divided into smaller political units,
each one being in itself more or less
sovereign.
A composite state is one composed
of a number of political units, each
unit enjoying some degree of internal
sovereignty but recognizing the
central organization as the seat of
ultimate sovereignty. The United
States is a good example of
composite state; called federal state
Note: A distinction should be made
between a confederation of state and a
federal state.
