Political Science 21

Module I

Lesson 2. THE SOURCES OF LAW

Lesson Objectives:
After studying this lesson on the sources of law, the student
should be able to:
1. give the three major sources of law in the Philippines;
2. differentiate written law from unwritten law;
3. define the principle of equity;
4. state the provisions when customs become sources of law.

Main Sources of Law

The principal or main sources of law in the Philippines, in order
of their primacy, are: 1) legislation, 2) judicial precedents, and 3) customs.
Legislation. Legislation consists of formal enactments of the legislature
in the form of legal rules and more technically known as enacted
law or statute law. In the Philippines, legislation is the preponderant
source of law and the only source of law that is absolutely binding.
This means that in deciding a case before it, the court must first
look into the law that is applicable to it.
Statute law has three chief characteristics, namely: 1) that it is
supposed to be a direct command of the state speaking through its
legislature; 2) it is stated in definite and precise terms; and 3) it operates
prospectively on cases arising after its enactment. To be valid, it must
be passed by the legislature in the prescribed form and duly published.
As source of law, legislation is supreme: it is subject only to the
provisions of the Constitution but otherwise prevails over all other sources.

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 Presidential executive orders and proclamations come under the heading
of legislations. They are issued as implementing orders of statutes and have
the force and effect of law provided they are not violative of any
law. Presidential decrees issued by the President during martial law years
were actually laws and many are still in effect. Legislation likewise covers
ordinances of local governments and are valid in their respective areas
as long as they do not violate any existing law.
Most major laws in the Philippines are contained in codes. There
are bodies of laws on a common subject or branch of the law that
are systematically compiled, such as the Civil Code of the Philippines,
Revised Penal Code, Code of Commerce, Rules of Court, and Revised
Election Code, among others.
Codification makes laws more clear and certain and makes the study
of law more systematic and convenient.
Precedents. Judicial precedent is a doctrine which means that a
decision by a court of competent jurisdiction on a point of law becomes
an authority to be followed by all other courts of equal or inferior
jurisdiction until such decision is reversed or amended by a court of
superior jurisdiction. Thus, if in a previous ruling, the Supreme Court
said that domicile, as a qualification for elective office, is a matter of
intention and not of actual habitation, the same doctrine must be observed
by all inferior courts in a similar subsequent case, for that is the
meaning of the law until the Supreme Court rules otherwise, if at all.
In so-called common law countries, like England, judicial precedent is
the principal source of law, in fact, the lifeblood of its legal system.
Customs. Customs consist of habits and practices which through long
periods of uninterrupted and unchallenged usage have been acknowledged
and accepted by a community as binding rules of conduct. As such,
it partakes of the nature of customary law which may be resorted
to in deciding a case in court in the absence of law and judicial
precedents.

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 The law does not expressly and categorically state that customs are
sources of law, but it provides — the Civil Code does — the conditions
under which they may be admitted as basis for court decisions. They
are as follows.
1. That the custom must be universal, in that it is generally
observed by the community where it is invoked. It may
be observed throughout the territory or only a portion of
it provided it is generally observed by the inhabitants. For
example, polygamy is a custom in Muslim regions in Mindanao
but not in the Christian areas of the island.
2. That the custom is not controversial; that it is accepted
by the majority of the people of the community.
3. That the custom has been observed as a matter of right;
that it creates on the part of the obligor a sense of
legal duty to follow the custom, and not merely to acquiesce
to it.
4. That the custom must have existed since time immemorial,
and not just invented recently. It must be a custom
remembered by generations and honored by tradition.
Other Sources of Law. When legislation, judicial precedents and
customs fail to provide the basis for deciding a case, other sources
may be the recourse, such as foreign decisions, expert legal opinions,
and general principles of law and equity.
Courts may look into decisions of foreign tribunals when dealing
with cases involving laws copied or adopted from foreign jurisdictions,
such as decisions of the Spanish Supreme Court relating to Spanish
laws extended to the Philippines, and those of American courts with
respect to laws transplanted to the Philippines during colonial times.
Opinions of text writers and legal scholars are often quoted in
courts and can be helpful in interpreting or clarifying the law. Although
their views are not binding upon the court, they can exert influence
upon it, depending upon the author's prestige.

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 General principles of law are time-honored precepts, expressed in
general sense, such as respect for human dignity, quality of rights,
justice for all, honesty and good faith, indemnity for damages, right to
privacy, etc.
When everything else fails — where there are no applicable statutes,
judicial precedents, customs, and neither are there foreign decisions, expert
opinions, or principles of law — the judge can always fall back
on equity. Simply stated, equity means justness and impartiality. Under
this principle, the judge decides a case according to his own personal
judgment. A number of things can influence his decision, notably his
sense of fairness, also his educational background, legal experience, sense
of morality, and even his religion. Whether his decision is right or
wrong is immaterial, but he must decide the case one way or
the other, for the law itself (Art. 18, Civil Code) provides that no
case brought before a court be left undecided.

Written and Unwritten Law

There are two major systems of law in the world today; the
written law or statute law and the unwritten or common law.
Written law is so-called essentially because it is a deliberate act,
prescribed by a competent authority in a formally- expressed manner
although it may not be reduced to writing. On the other hand,
unwritten law is so called because it is derived either from the judicial
interpretation of the law constituting a judicial precedent (case law),
or from customs and practices (customary law), although they may
be in written form in both instances.
The Philippines is essentially a written law country but recognizes
case and customary laws as supplementary sources in default of written
laws.

(SEE NO. 3 OF "INSTRUCTIONS TO THE STUDENT")

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Political Science 21
Module I
Lesson 2

SELF-PROGRESS CHECK TEST

Test A. Enumeration/Identification. (1 point each)

___________ 1.
___________ 2. Three major sources of law in the Philippines
___________ 3.
___________ 4. Three minor or supplementary sources of law
___________ 5. in the Philippines
___________ 6.
___________ 7.
___________ 8. Three chief characteristics of statutory law
___________ 9.
___________ 10. The systematic compilation of laws on a common
subject or branch of the law.
___________ 11.
___________ 12. Three requisites for a custom to be accepted
___________ 13. as a source of law.

Test B. Filling the blanks.

14 - 17 Sources of law emanating from:

___________ 14. an act of Congress
___________ 15. court rulings
___________ 16. habits and practice
___________ 17. generally accepted precepts

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 ___________ 18. In terms of form, _____ laws are those which
___________ 19. are formal and deliberate acts of a competent
authority, while _____ laws are those which are
transmitted from generation to generation.

Test C. On the blank before each number, write True if the

statement is completely correct; otherwise, write False.

___________ 20. Unwritten law is so called because no part

of it is written at all.
___________ 21. In a conflict between statutory law and case
law, the former shall prevail.
___________ 22. To be accepted as an authority, a custom
must be unanimously accepted by a community.
___________ 23. In our jurisdiction, if there is no authority
upon which to decide a case, it must be
dismissed.
___________ 24. Written law is to England as unwritten law
is to the Philippines.
___________ 25. As a source of law, statute takes precedence
over judicial precedence.

(SEE NO. 4 OF "INSTRUCTIONS TO THE STUDENT")

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