Common-Civil Compared Nature of common law

Role of judges Place of statutory law

Hybrids: Common law grafting on civil law Case of the Philippines

common law overlay

Case of Puerto Rico civil law reassertion

Common-Civil ComparedIn re Shoop (Sup Ct Philippines 1920)

Shoop, a licensed New York lawyer with 5 years experience, applied to the Philippine bar.

Questions: What was required under Filipino court rules? What does New York law say? Does the Filipino court want to be American?

Common-Civil ComparedNew York bar admission rules:

“Admission without examination for … persons admitted … in another country whose jurisprudence is based on principles of the English common law.”

Questions: Is New York law based on “principles of English

common law”? North Carolina law? Louisiana law? What is

“common law”?

Common-Civil ComparedNew York: Common Law of England was

colonial law and continues “constantly improving science

… system of legal logic” Even though statutes “very

large proportion” / tendency toward codification

Anglo-American jurisprudence displaces old English cases

Louisiana: Originally French pre-code law 1769-1803: Spanish law (by

treaty) with French traditions 1808: Civil Code (revised

subsequently) Based on Spanish and

French sources Roots in Roman law

legislation adopts English procedure (as of 1805)

Application of common law methods (custom vs. code)

Common-Civil Compared

Common-Civil Compared 14th century Malay traders

introduce Islam and create Muslim principalities

1521 Portuguese Ferdinand Magellan reaches islands, but killed in battle with islanders.

1536 Philippines named after Charles V's son (later Philip II of Spain) by Spanish navigator Ruy Lopez de Villalobos.

1565 Philippines conquered by Spanish army led by Miguel Lopez de Lagazpi.

1571 Manila made capital, part Viceroyalty of Mexico.

17th C. Spanish missionaries convert lowland population to Roman Catholicism.

1763 British occupy Manila. 1834 End of Spanish trade

monopoly / British, American merchants bring sugar,tobacco.

1896-97 Emilio Aguinaldo leads revolt against Spanish rule.

Common-Civil Compared 1898 Spanish-American War

US navy destroys Spanish fleet in Manila Bay / Spain cedes Philippines to USA.

1898-1901 Nationalist uprising suppressed by US troops 200,000 Filipinos killed.

1907 Americans set up elected legislative assembly.

1916 Bicameral legislature introduced based on US model.

1935 Philippines gain internal self-government with Manuel Quezon as president.

1942-45 Occupied by Japan. 1946 Philippines achieves

independence from USA under President Manuel Roxas / USA retained military bases

1957-61 President Carlos Garca introduces Filipino First policy to reduce US/Chinese economic power / official corruption increases.

1972 President Ferdinand Marcos declares martial law / diverts foreign loans to personal use.

Common-Civil Compared 1981 Marcos retains sweeping

emergency powers to combat long-running Muslim and communist insurgencies.

1983 Opposition leader Benigno Aquino murdered at Manila airport

1986 His widow Corazon Aquino uses people's power to force Marcos to flee country.

1987 Freedom constitution 1989 Sixth coup attempt

suppressed with US aid.

1991 Philippine senate calls for US withdrawal / rejects US renewal of Subic Bay naval base lease.

1992 Fidel Ramos elected to succeed Aquino.

1995 Imelda Marcos elected to the House of Representatives while on bail from prison on a sentence for corruption.

2001 Estrada impeachment trial suspended after senators block evidence. Estrada leaves after public demonstrations

Common-Civil ComparedPhilippines: What happened after US acquisition? Not adopt Anglo-American common law

But Filipino laws imposed by US occupation subject to Common Law interpretation

But Filipino cases refer to US court decisions / US judicial interpretation of similar statutes

Judicial system based on US model Development of Philippine common law Use Anglo-American precedents to interpret Spanish codes

What is basis of law?

Common-Civil ComparedUS (new sovereign): Occupation authority adopts Spanish codes–

Required by international law? What if inconsistent with US Constitution and

principles?

Role of Philippine judges – In interpreting and applying law? In making law?

Common-Civil ComparedSpanish Codes in the Philippines: How interpret and apply?

No stare decisis (jurisprudencia) * “Judicial decisions cannot be resorted to” / lower court can

disregard higher court decisions *

Judge-made law? Las Siete Partidas: Judge can refer to custom (fueros and

costumbres), judicial decision or “general principles” (doctrina) only when no written law on point

Hierarchy may vary

Common-Civil ComparedWhat does Filipino court hold?

“The fact that prolific use of Anglo-American authorities is made in the decisions of this court, combined with the fact that the available sources for study and reference on legal theories are mostly Anglo-American … there has been developed and will continue … a Philippine Common Law based on the English Common Law in its present form of an Anglo-American Common Law.”

Questions: Why did the Court go into such detail? Does this mean seasoned Filipino lawyers can practice in

New York?

Common-Civil ComparedIs the Philippines a “common law jurisdiction”: Filipino law is mostly based on Spanish codes (not judge-

made rules) Written laws are to be interpreted and applied using

“developed civil law theories”Questions: Would a Filipino lawyer be comfortable with US legal

theories, rules, procedures and techniques? What is educational/professional background of the

current judges of the Philippines Supreme Court? Would you be comfortable practicing in the Philippines?

Common-Civil ComparedPhilippines Supreme Court: Chief Justice: Hilario G. Davide, Jr. (UP College of Law) REYNATO S. PUNO (UP; MCL - SMU, LLM – Berkeley, SJD – Illinois) JOSE C. VITUG (unnamed law school) ARTEMIO V. PANGANIBAN (unnamed / 5 children “pedigreed US

universities”) LEONARDO A. QUISUMBING (UP– Fulbright visit to Harvard, Yale,

Georgetown) CONSUELO YÑARES-SANTIAGO (UP– panel with Ruth Bader Ginsburg) ANGELINA SANDOVAL-GUTIERREZ (Santo Tomas / Courses at Harvard) ANTONIO T. CARPIO (UP) MA. ALICIA AUSTRIA-MARTINEZ (UP / Harvard course for judges) RENATO C. CORONA (Santo Tomas / LLM – Harvard) CONCHITA CARPIO-MORALES (UP) ROMEO J. CALLEJO, SR (San Beda / conference in Madrid, Spain) DANTE O. TINGA (East College of Law / LLM – Berkeley)

Common-Civil ComparedHistory of the Philippines Supreme Court: Predecessor: Royal Audiencia (est. 1583)

5-member tribunal below only Consejo de Indias Judicial and administrative functions

Audiencia Territorial de Manila (1815) number of justices increased two branches, civil and criminal decisions appealable to Sup Ct of Spain in Madrid

Common-Civil ComparedHistory of the Philippines Supreme Court: US occupation

military government suspends criminal jurisdiction (1898) Re-establish Audiencia - jurisdiction over civil and criminal

cases compatible with US sovereignty (1899) Audiencia abolished and Supreme Court established (1901)

Phillipine Bill (1902) US Congress reaffirms structure membership of nine Filipino chief justice, but majority Americans (1901-1935)

Common-Civil ComparedHistory of the Philippines Supreme Court: Commonwealth (1935)

Filipinization of court Membership increased to 11 (later to 15 in 1973)

Marcos overthrow Corazon Aquino Freedom Constitution (1986) Constitution – “one Supreme Court and in such lower courts

as may be established by law” (1987)

Common-Civil Compared

Common-Civil ComparedPuerto Rico 1898-1914: reception of US law 1915-1943: consolidation of US law 1941-1952: search for new direction 1952-1973: revitalization of civil law

tradition 1973-present: civilian intensification

Common-Civil ComparedPuerto Rico: The Trials of the Oldest Colony

in the World by Jose Trias Monge, Although Puerto Rico is technically a territory of the United States, José Trias Monge prefers the unvarnished term "colony" to describe his homeland's difficult position. Spain ceded control of the island to the United States more than 100 years ago, and in that time Washington has continually avowed its desire to respect the wishes of the Puerto Ricans while systematically limiting its sovereignty.

Common-Civil ComparedOnly three options remain to the island: Puerto Rico can

remain a territory, become an independent nation, or join the U.S. as the 51st state. Yet frequent plebiscites held in the territory have resolved nothing.

Though Monge is quick to point out how Puerto Rico has benefited from its relationship with the U.S., he is unwavering in his support of the idea that "Nobody has the right to govern another: it is as simple as that."

Common-Civil Compared

Common-Civil ComparedValle v. American Intl Insu Co (Sup Ct PR 1979)

Five cars stood in line. A sixth car hit the last car in line, beginning a chain reaction. The driver of Car2 sues the driver of Car3 – go figure.

Driver2 says Driver3 was negligent by being 2-3 feet behind his car – absurd, no?

Car2 was pushed into Car1, which was 8-10 feet ahead – why is this relevant?

What does the law say?

Common-Civil ComparedVehicle and Traffic Law of Puerto Rico:

“No parking or standing less than three feet from another vehicle”

Questions: Assuming Driver3 was negligent in “standing” her Car3

too close to Car2, is that enough? Was Driver3 the cause of the injuries to Driver 2? What

law applies?

Common-Civil ComparedPR Civil Code:

“A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done.”

Questions: What does this mean? Where should a Puerto Rican

court look ?

Sources of law –

1. Puerto Rican traffic code

2. Spanish traffic code

3. Puerto Rican civil code

4. Spanish civil code

5. Spanish “doctrine”

6. Spanish “jurisprudence”

7. Italian case law

8. North American case law

Common-Civil ComparedSources of law – “We have to resort to art. 1802 of our Civil Code, which is equivalent

to art. 1902 of Spain.” “the general principles are well known … causal connection must exit

between the wrongful act and the damage sustained.” J Santos Briz, Derecho Privado, Madrid 1963”

Spanish case law “has repeatedly held … causal relation can be interrupted if conscious, intentional or unlawful”

The Italian Court of Cassation “decided that in controversies of this nature only the last vehicle is liable for a chain collision between standing vehicles. Cass., 1976, cited in …”

“to illustrate, we note the North American viewpoint … Illinois, Kansas, Rhode Island, New Hampshire”

Common-Civil ComparedWhich is true – in the Philippines, in Puerto Rico? “American doctrines and theories must control the court … even in the

construction of the law of Spain” “We are always inclined to adduce the doctrines of American

jurisprudence, considering them more progressive.” “Common law administration of a Roman code will result in a system

Anglo-American in substance and Roman-Spanish in its terms” “All cases cited which tend to solve civil-law problems through

common-law principles are reversed.” “In appropriate cases, Anglo-American common law shall lie as a

point of reference for comparative law.”

Common-Civil ComparedWhich is true – in the Philippines, in Puerto Rico? “American doctrines and theories must control the court … even in the

construction of the law of Spain” PR “We are always inclined to adduce the doctrines of American

jurisprudence, considering them more progressive.” Ph “Common law administration of a Roman code will result in a system

Anglo-American in substance and Roman-Spanish in its terms” Ph “All cases cited which tend to solve civil-law problems through

common-law principles are reversed.” PR “In appropriate cases, Anglo-American common law shall lie as a

point of reference for comparative law.” PR