legal philosophy presentation

8/13/2019 Legal Philosophy Presentation

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The Historical

Perspective

Legal PhilosophyAtty. Vyva Aguirre

Alfafara||Calica||Florido||Padua||Serrano 1


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Historical Perspective as a

Starting Point

Alfafara||Calica||Florido||Padua||Serrano 2Freidrich Karl Von Savigny (1779-1861)

The concept of the soul

and spirit of the people

(diwayan) provides the

sense of beginning andunfolding of the law.

The concept of the

folksoul has lost a gooddeal of its appeal to

many legal philosophers

and jurisprudents.


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Historical Perspective as a

Starting Point

The ideas of soul and spirit are rarely used in the worksof modern philosophers.

All ideas are generally used to mean a high degree of

intelligence which they call minded action. Modern jurisprudents have ceased to consider or to pursue

the historical perspective as to the nature of the law.

Stone feels that the historical perspective of the nature of

the law is only a chapter in the development of law insociety.

It is still useful in the evaluation of the legal development ofa nation especially its legal history.



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Historical Element in Law

Due to the inevitable conflict of wants some kind of

social order evolved in order to settle or harmonize

conflicting or overlapping interests.

Based in some recurring decisions or adjustments of

conflicts of interests.

The precepts defining rules of action were classifies

and with the evolution of some form of governmentserved as the beginning of the legal order.



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Historical Element in Law

The presence of the historical elementin law is thus manifested by at leasttwo important marks:

The changes in social existence of thepeople and

The progressive conditions of theirpolitico-legal development.

Historical Jurisprudence , the law couldnot have thrived except in thisenvironment.



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Historical View Limited in Scope

Peculiar to a group of people.

Accepts the idea that what ispeculiar to a group of people is notnecessarily true for another group of

people.

Each group has its own folksoulpersisting from generation togeneration.

The law is not universal in scope. Itis only national in character that is tosay conservatively oriented to thetime, place and individuality of aparticular group of people.



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Nature of the Law

On the Vocation of Our Times for Legislation andJurisprudence , Savigny vigorously opposed the plan ofProfessor Thibaut to codify the civil laws.

Professor Thibaut cited the successful application of theRoman Law principles in the French Code, Napoleon.

Savigny argued vigorously that Thibautsproposal was anaffront to the German volksgeist.

The law is the product of the huge mass of beliefs, opinion,prejudices and even superstitions of a people produced byinstitutions of human nature reacting one upon another.(Henry Sumner Maine)



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The OBLUTIACS of a People

Language

Opinions, Beliefs, Longings, Usages, Traditions,Idiosyncrasies, Arts, Customs and Superstitions

Reveals the national identity, character and genius of apeople.

Form the common consciousness and intelligence of thepeople

It can be assumed that each group of people has its owncommon consciousness about its national identity andcharacter.



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The Folksoul

Folksoul (Diwayan)

National Identity

Character

Genius of People



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FOLKLORE

Paniniwala

Beliefs and traditions of a group of people

May survive in the form of epic tales (kwentong

bayan)

Also in tales of bravery



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FOLKLORE

Epic Tales:

Ibalon

Biag ni Lam-Ang

Muslims of Lake Lanao



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FOLKSAYING

Kasabihan

From opinions of the people

OPINIONS = stronger than impressions

May be in MAXIMS (sawikain) or SENTIMENTS (sabi)



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FOLKSAYING

MAXIM(sawikain) short or terse statement

containing a general truth or a timeless rule of conduct

SENTIMENT(sabi) settled sense, view or

disposition colored by feeling



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FOLKSAYING

EXAMPLE:

Mabuti na ang mamatay na malinis ang budhi kaysa

mabuhay na parang pusali. Ang pag-aasawa ay di biro, hindi ito kaning mainit na

iluluwa kapag napaso.



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FOLKSAYING

JURAL IN NATURE

Ang mag-asawa sa ari-arian ay iisa.

Could be found in the Family Code

Huwag kang pumasok sa bakiuran nino man ng

huwag kang masakupan

Positive law on ownership



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FOLKWAY

Kaugalian

Common consciousness and national character of the

people

Composed of customs and usage of the people

Customs and usages are widespread ways and

practices



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FOLKWAY

To aid life in the environment which the people have

found themselves.

Enforced by social sanctions which makes it differentfrom habits.

But habits can evolve to customs when they become

rational and widespread.

Has passed the tests of time and crises.



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FOLKWAY

Example:

Ligaw-Tingin (courtship-by-looking)

Pagmamagulangjural in nature; found in the familycode.

Maybahaymay ari ng bahay; management of the

household by the wife.

Bigaypayoadvice from the elders; also in the Familycode.



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Law Not Deliberately Made

The law is not deliberately made by the effort of human will

but is discovered in the common consciousness of the

people.

The growth of legal system is closely related to the growth

and development of people, the expansion of commerce and

trade, as well as the interdependence existing among

different groups of people.



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Law is the product of the national genius or common

consciousness, developed by the steady growth and

development of the people themselves.

Jurisprudents and Jurists

(legal rules, legal principles, legal concepts, and legal

standards)



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Similarity of Different Legal Orders

Historical Reason

Factors in the process in the development of people:

- Political,- Commercial,

- Religion,

- and other types of contacts with people



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Jurisprudential Reason

The precepts of justice and fairness are said to be permanent

and present in all men everywhere since they are impressed

in the human heart and mind.

eg.No one can enrich himself at the expense and misery of

another.



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VALUE OF HISTORICALPERSPECTIVE



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Studying the legal history

through their Oblutiacs

Historical view of nature of the law highlights the rules

and regulations governing human conduct can survive

the tensions of social and political existence. Karl Fredrich von Savigny: this approach avoids

uncertainty and accident in the development of

application of law.



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Demonstration in the

Philippines

Article 10 of Civil Code

sense or trait of the Filipinos in the following sawikain: Ilubog at dagnan man ang katwiran/ ay pilit itong lulutang

Iti linteg isut taklin daguitti nalap-it


D i i h


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Philippines Art. 19- 36 of Civil Code

sense of trait f the Filipinos in the following sawikain:

mahalaga and puring patay/ sa masamang puring buhay

masira man sa pamimilak/ huwag lamang sa

pangungusap.


D t ti i th


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Philippines Art. 198-211 of Civil Code

Art. 216-222 of Civil Code(modified by art. 149 and150 of FC)

Art. 223-251 of Civil Code(covered by Art. 152-162 of

FC)



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Conclusion

sawikain of the people may be utilized as further

guides to adjudicative determination

Courts can be guided by the sawikain whennecessary.


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