Introduction To Law PDF

Would you defend a person who committed murder of an innocent person ? L AW What is law? 1. Reasonable rule of action 2. Due promulgation 3. Promulgation by competent authority 4. Generally, a sanction imposed for disobedience Theories of law 1. The Teleological or Natural Law Th...

Would you defend a person who committed murder of an innocent person ? L AW What is law? 1. Reasonable rule of action 2. Due promulgation 3. Promulgation by competent authority 4. Generally, a sanction imposed for disobedience Theories of law 1. The Teleological or Natural Law Theory 2. The Positivist Theory 3. The Interpretivist or Constructivist Theory 4. The Realist Theory 5. The Critical Theory The Teleological or Natural Law Theory Law flows from the divine The law serves a higher universal order or natural order This involves normative jurisprudence The law is law as long as it pursues the precepts of reason: reasonableness, justice, equality, and fairness. The Teleological or Natural Law Theory Article 10. In case of doubt in the interpretation or Even if not formally established, the right to application of laws, it is presumed that the lawmaking body intended right and justice to life, being grounded on natural law, is prevail. (n) inherent and, therefore, not a creation of, or ARTICLE 19. Every person must, in the exercise of his dependent upon a particular law, custom, or rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty belief. It precedes and transcends any and good faith. authority or the laws of men. ARTICLE 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall Imbong v. Ochoa, G.R. No. 204819, April 8, 2014 compensate the latter for the damage. The Positivist Theory We follow the law because it is the law, period. The law is purely a product of human will and agreement. This involves analytic jurisprudence. Until nullified or amended, one cannot dismiss the law based on what it should be according to some non-legal standards – for being immoral, inefficient, irrational, imprudent or impractical. The Positivist Theory 11 - Natural Law With respect to the argument that the RH Law violates natural law, suffice it to say that the Court does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution. While every law enacted by man emanated from what is perceived as natural law, the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual law of the past or present. Unless, a natural right has been transformed into a written law, it cannot serve as a basis to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the petitioners, it was explained that the Court is not duty-bound to examine every law or action and whether it conforms with both the Constitution and natural law. Rather, natural law is to be used sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is applicable. Imbong v. Ochoa, G.R. No. 204819, April 8, 2014 The Interpretivist or Constructivist Theory What the law means is what the judges of the law would read it to mean. Interpretivism is a kind of natural law or “nonpositivist” theory since it claims that, in addition to institutional practice, certain moral facts necessarily play some role in the explanation of law. The legal text is not enough. There are correctible issues on what the law should be based on some fundamental principles or values. The Interpretivist or Constructivist Theory This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Oposa v. Factoran, G.R. No. 101083 July 30, 1993. The Realist Theory Legal realists conclude that legal science can analyze law exclusively through natural science’s value-free tools, rather than by metaphysical inquiry into the essence and purpose of the law the law can not be isolated from its implementation. Legal concepts are determined by human behavior and historical/cultural context, which should be evaluated empirically, instead of by theoretical assumptions about the law. The Realist Theory Bad-Man Theory is a legal doctrine that suggests that the view of the law held by a bad person is the best way to understand what the law actually is. This is because a bad person will carefully calculate what the rules allow and operate up to the limits of those rules. Articulated in The Path of the Law by Justice Oliver Wendell Holmes, Jr. The Critical Theory Law is the means to enshrine and coercively impose the wishes of a dominant group. The ruling class make the law to protect their interest. The Critical Theory …two kinds of lawyers emerge: those who accept law as principle, almost without political content and existing exogenous to specific social issues. These lawyers apply law to given social problems hoping that relevant solutions come out. Of course, the value choices imbedded in statutes, rules and existing jurisprudential interpretations predetermine the results. Then there are those who deny that law exists as exogenous principle that should be accepted as immutable givens. Their starting point is some political advocacy in favor of a specific interest group or a marginalized community. Law, in its formulation, implementation and interpretation, becomes a political platform: a language that could bring about partial results. These lawyers accept law as a social phenomenon malleable to conscious efforts to achieve social change. Lawyering for the public interest, 2003, Associate Justice Marvic Leonen Sources of law Administrative or executive orders, Constitution Legislation regulations, Ordinances Decisions of the Supreme Court Custom* Other sources or jurisprudence Classification of law Type Application Compliance Substantive Private law Mandatory law Public law law Procedural Permissive law laws Classification of law Civil Commercial Labor Political Tax Remedial Ethics Criminal Midframes per subject Political – relationship Remedial – procedures with the person and the Civil – relationships to enforce rights | Ethics state with each other – conduct of lawyers STRUCTURE AND LIMITATIONS OF RELATIONSHIPS STEPS TO ENFROCE STATE POWER Midframes per subject Commercial – relationship Criminal – act and Labor Law and Social with capitalism |Tax – omission of persons focused on taxation power legislation – relationship prohibited by law with social justice of the state THOSE WHO HAVE LESS CHECK LIST WHAT IS MINE IS MINE IN LIFE SHOULD HAVE MORE IN LAW The Hierarchy of Law The Constitution Statutes Administrative Orders/Ordinances The Hierarchy of Law Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (5a) Republic v Sandiganbayan, G.R. No. 104768, July 21, 2003 The Constitution What happens when there is no operating Constitution? Statutes Administrative Orders/Ordinances People v. Maceren - 79 SCRA 450 The Constitution Statutes Administrative Orders/Ordinances The Hierarchy of Rights ? ? ? Philippine Blooming Mills Employees Org. v. Philippine Blooming Mills Co. Inc., 51 SCRA 189, June 5, 1973 Workers wanted to protest against police brutality but management insisted that not all workers should join the protest. They said that by doing so, they would violate “no strike no lockout” policy in their CBA. Can the leaders of the union be terminated? Philippine Blooming Mills Employees Org. v. Philippine Blooming Mills Co. Inc., 51 SCRA 189, June 5, 1973 Workers wanted to protest against police brutality but management insisted that not all workers should join the protest. They said that by doing so, they would violate “no strike no lockout” policy in their CBA. Can the leaders of the union be terminated? In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; and such priority "gives these liberties the sanctity and the sanction not permitting dubious intrusions." Life > company profit Management cannot also insist that only 1/3 of the workers will join because the circulation of the issues raised by the demonstration is diminished. 10 min break Constitutionalism  central, overriding purpose of civil government was to Social Contract protect and preserve the individual’s natural rights. the central purpose that has brought a civil government into existence, i.e., the protection of the individual’s natural rights, sets firm limits on the political authority of the civil government. individual subjects have a right of last resort to collectively resist or rebel against and overthrow a government that has failed to discharge its duty of protecting the people’s natural rights and has instead abused its powers by acting in an arbitrary or tyrannical manner. John Locke Constitutionalism implies 1. Popular sovereignty 2. The supremacy of the Constitution and the Rule of Law 3. Political Democracy 4. Representative Limited Government 5. Separation of Power 6. Civilian Control of the Military force 7. Police governed by Law and Judicial Control 8. An Independent Judiciary Henkin, Louis (1992) "Constitutionalism, Democracy and Foreign Affairs," Indiana Law Journal: Vol. 67: Iss. 4, Article 1. …to espouse no ideology but constitutionalism; to uphold no theology but the rule of law. C.J. Renato Puno  We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution. Preamble SECTION 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. SECTION 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. Article II, Declaration of Principles and State Policies The State State The accepted criteria of statehood were laid down in the Montevideo Convention (1933), which provided that a state must possess a permanent population, a defined territory, a government, and the capacity to conduct international relations. How states are recognized? Constitutive - in contrast, contends that the act of recognition itself actually creates the state. Declarative - the act of recognition signifies no more than the acceptance of an already-existing factual situation—i.e., conformity with the criteria of statehood. Human Rights Judicial Power SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Article VIII, Judicial Department Power of Judicial Review Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. Chief Justice Constitutional Commissioner Roberto Concepcion It is emphatically the province and duty of the judicial department to say what the law is. Marbury v. Madison : 5 U.S. 137 (1803) Requisites for the exercise of Judicial Review 1. There must be an actual case or justiciable controversy before this Court; 2. The question before this Court must be ripe for adjudication; 3. The person challenging the act must be a proper party; and 4. The issue of constitutionality must be raised at the earliest opportunity and must be the very lis mota of the case. Other concepts 1. Jurisdiction 1. As to subject matter 2. As to issues 3. As to the person 4. Original Jurisdiction 5. Appellate jurisdiction 2. Stare decisis Stare decisis The doctrine of stare decisis enjoins adherence to judicial precedents. It requires courts in a country to follow the rule established in a decision of the Supreme Court thereof. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land. The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument.  Review Center Association Of The Philippines v. Ermita, G.R. NO. 180046 : April 2, 2009 Legislative Executive Judiciary End of Day 1 Prepare for the Bar on Day 1  5 survival skills 2. Sorting facts 3. Applying 1. Mastering legal 4. Reaching a 5. Articulating and spotting principles/law principles /law issues to facts conclusion the conclusion 1. Study Plan 1. Read cases 1. Know the nuances 1. Practice writing and speaking 2. Own notes 2. Look for key words 2. Look for key words 3. Explain to yourself and hooks and hooks 3. Know relevant from not The Anatomical Structure of Law Body of law Categories – concepts General Rule List of Elements Exception Definition Exception to the exception Definition TESTS Definition The Anatomy of Law Law classifies: Children in conflict Regular employee Citizen and non- Rights or dolo and culpa with the law and or probationary citizen Obligations children at risk employee Higher education Real or personal agricultural and and basic minor or adult public and private property residential education non-self executing juridical entity and Duty OR non-stock and male and female and self-executing individual person obligation stock corporation provisions The Anatomy of Law General rules, exceptions and exceptions to the exceptions General Rule: laws are prospective in nature Unless it is favorable to the accused But except those who are habitual delinquents or recidivists. The Anatomy of Law Lists Tests The Anatomy of Law ELEMENTS (1) that there be taking of (2) that said property (3) that the taking be done personal property; belongs to another; with intent to gain; (5) that the taking be (4) that the taking be done accomplished without the without the consent of the use of violence against or owner; and intimidation of persons or force upon things.  Judicial scrutiny of laws for Sub Due Process and Equal Protection Issues Government State Interest Inquiry into the means or classification Freedom of speech case Burden of policy burdens or government tries to Proof affects what? achieve Strict Scrutiny Fundamental Compelling State Is it the actually least restrictive Content-based policy State rights and Interest means after analyzing other suspect class ; alterative actions? burdens Is it narrowly tailored in order to suspect protect fundamental rights? classes* Intermediate classifications Important State Is the means substantially Content-neutral State based on Interest (genuine and related to achieve the state policy** gender and not broad interest? legitimacy generalization) Is it conceptually least restrictive means? Rational Basis The rest Legitimate State Is the means rationally related to Petitioner (social or interest achieve the state interest? economic or Application of (1. substantial tax policy) distinction, 2. germane to the purpose of the law, 3. applicable to future cases, 4. applies equally to the same class) Overinclusive v Underinclusive * A "suspect class" is defined as "a class saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. ** if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest) Political Law Judicial Review Citizen Follow Hierarchy of Courts Elements of Judicial Review Exception: Actual controversy cases of first impression Ripe for adjudication Test: Standing What amounts to Lis mota and raised at grave abuse the earliest of discretion opportunity Thinking like a lawyer Thinking like a lawyer 1. Lawyering, in its basic sense, refers to the ability to give a client legal advice. 2. Listening to a client’s story 3. Digest a set of facts 4. Identify legal problems or issues 5. Come to a conclusion  Probabilistic Legal issues often do not admit of definitive answers. Instead, there are provisional, probabilistic answers and arguments about what those answers should be.  Not about reciting the law Law is not about reciting legal rules or spouting information; it is about reasoning cogently and making careful and convincing arguments on the basis of legal materials for particular conclusions  Not about memorizing Law school is not just about learning and memorizing. It is developing “JUDGEMENT”, an informal feel of how judges decide.  Think Lego! Your job is to use legal concepts and categories to break down these puzzles into an: 1. orderly sequence of questions, 2. to identify plausible answers to those questions, 3. and to work through the strengths and weaknesses of the arguments for those answers.  Good lawyers Knows the difference between an argument that is likely to be a winner and one that will fail.  Great Lawyers Recognize how to take an argument that seems weak and make it strong as it can be.  Star Lawyers Think of argument no one ever has , or push an argument that most others thought could not possibly prevail, and in doing so change THE PATH OF THE LAW. Reading a case Look for 1. Issues of precedent 2. Facts of the case 3. Parties’ positions 4. Procedural posture 5. Holding/dicta 6. Facts important to holding/how holding applies to a new fact pattern 7. Where the case fits into overall course 8. Important text Source: Introduction to Law School for First-Year Students, Professor Molly Bishop Shadel, University of Virginia School of Law Answering law exams What the examiner is looking for 1. Understanding of the law – your recall and understanding of the legal principles involved. 2. Depth of analysis – how you link the law and the fact pattern as well as interpreting the given facts. 3. Quality of articulation – how you communicate and arrange your arguments and flow. Here, CLAC is useful. Suggestions from the Supreme Court 1. Read each question carefully for its full and complete understanding. 2. Pay particular attention to the directive or direction: argue, compare, contrast, define, decide, and distinguish. 3. Do not do ”shotgun” approach 4. Go straight to the point if you know the exact answer to the question. 5. Use transitional words such as first, second, next, finally, on the other hand, consequently, furthermore and in conclusion. 6. Make sure no uncalled for name, distinguishing or identifying mark is placed How to answer an essay question Answer Law Application Konclusion Example 1 Congress passed RA 12345 to regulate fishing in the Macajalar Bay. One prohibited act is fishing through the use of fine nets. The DENR, an administrative body, was tasked to create the Implementing Rules and Regulations. In one of the provision of the IRR, the DENR provided that “fishing through the use of fine nets and the use of electric fishing methods are prohibited.” Jacob, a fisherman, was caught using an electric rod while fishing. As his lawyer, what would be your defense? Common mistakes Giving policy recommendations I should argue that the fisherman is poor and the law should not be harsh. It is the right thing to do. Due to the silence of the facts, many assume that publication is the issue. Try to put a hierarchy of issues and weigh which possible answer utilizes more the expressly given facts. The issue of publication is based solely on the silence of the problem. Create a list of defenses (mistake of fact, location, present evidence first, asking for lower penalty, protection of the weak, constitutional policy of social justice, retroactivity) that does not in anyway address the issue of the case. Avoid using conditionals. Putting conditions, “it is ok but” Lack of articulation. You did not use “legal language” in weaving facts and principle. Too conversational. Adding facts not stated DO not restate the facts CRINGE: Yes, indeed there is a question of Constitutionality in the case at bar. Sample answer I would raise the defense that the provision used to charge Jacob is void. The law provides that administrative orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. Here, the Implementing Rules and Regulations included a prohibited act which is not found in RA 12345. Since electric fishing methods are not expressly banned by the statute, the DENR has no authority to penalize such act. Hence, the provision prohibiting electronic fishing, which Jacob allegedly violated, has no legal basis. Example 2 On the night of August 28, a group of Chinese pirates hatched a ploy to seize the shipment of an incoming international ship named M/V Akita which is registered under Japanese Law. The owner of the ship is a Malaysian Company. When the ship was already in International waters, they climbed into the ship, killed a couple of security guards and sized the cargo. When the pirates retreated, a sudden storm disturbed their escape route. They eventually were washed ashore in the island of Batanes, Philippines. Local authorities seized them and charged them. Can they be charged of the crime of qualified piracy? Sample answer Yes, they can be charged with the crime of qualified piracy. Though the Revised Penal Code generally adheres to the territoriality principle, one exception is when the crime committed is against the law of nations. Piracy is considered a crime against humanity or the law of nations and thus the Philippines can exercise universal jurisdiction over such offense. Here, though the actual seizure and murder occurred in international waters, the pirates were arrested within the Philippine territory. As such, the courts can acquire jurisdiction and the they could be charged accordingly. Socratic Method Let’s do some exercise: Oposa v. Facturan What is a cause of action? Some tips Listen carefully. “what was the question?”. Listen to the prompts Answer directly. Yes. No. Elaborate when pushed further Be respectful. Admit you haven’t read the case. 1. SOCIAL HEALER 2. TECHNICIAN of POWER 3. INSTITUTION BUILDER 4. Custodians of the Rule of Law Ultimately, let us aim for the Rule of Justice  “ Silence never won rights. They are not handed down from above – they are forced by pressures from below Doing legal research