Legal Historicism

(The Historical School)

Submitted to:

Atty. Ronn Villanueva

Professor, University of the East - College of Law

Submitted by:

Ralph Bisnar

Jan Paul Cruda

Gia Dacuan

Maureen Dullas

Aeron Salientes
 Legal Historicism

It usually takes a hundred years to make a law; and then, after it has done its work, it
usually takes a hundred years to get rid of it.

Henry Ward Beecher, Proverbs from Plymouth Pulpit

The law, since the birth of civilization, became the glue that binds society together. It
became the language that humanity used, and continues to use, to seek justice. It protects
as much as it punishes, and it carries with it the burden to be fair in an otherwise unfair
world. However, the law, like the flawed men who wrote it, evolves through time and takes
shape in the demands of a changing society. From the primitive justice system of our
forefathers climbing towards the moralization and modernization of our laws today, history
played a significant role in creating a legal system that best fits this generation, and it will
continue to be so until there is a necessity for its change.

The Historical School or Legal History

Definition

According to the Legal Dictionary, Legal History is the record of past events that deal with
the law. [It] is a discipline that examines [past events] that pertain to all facets of the law.
It includes an analysis of particular laws, legal institutions, individuals who operate in the
legal system, and the effect of law on society.1

Jack M. Balkin from Yale Law School wrote that “legal historicism” is the various forms of
legal study that examine legal decision-making as the product of political, social, and
(especially) historical forces.2

There are many different varieties of legal (or constitutional) historicism, but each is
premised on two basic assumptions about the legal system. The first assumption is that
legal materials and the internal conventions of legal argument are, at any point in time,
genuinely constraining on practitioners of legal argument and not infinitely malleable.
Nevertheless, at the same point in time, they are sufficiently flexible to allow law to become
an important site for political and social struggle.

The second assumption is that legal materials and conventions of legal argument are
themselves gradually changing in response to the political and social struggles that are
waged through them. Therefore, the internal norms of good legal argument are always
changing; they are being changed by political, social, and historical forces in ways that the
internal norms of legal reasoning do not always directly acknowledge or sufficiently
recognize.

The study of law is, therefore, the study of changing structures of legal consciousness and
the ways in which they serve, at any given time, to socialize lawyers into the “proper”
performance of their roles—including, obviously, knowing which kinds of sentences count as
well-formed examples of “law-talk” and which are, alas, evidence of a certain linguistic
incompetence.3

The historical school holds that the law has a past and a progression. It develops in a
gradual and evolutionary process that cannot be separated from its national or indigenous

1 Legal Dictionary, legal-dictionary.thefreedictionary.com/Legal+History

2 Jack M. Balkin, Legal Historicism and Legal Academics: The Roles of Law Professors in the Wake of
Bush v. Gore, Yale Law School
3 supra

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 Legal Historicism

character—from clannish rules, to folk beliefs, to landmark events that shaped a nation. The
historic school raises the question of how the law originated. 4

Historical Background

The historical school was a reaction to the rationalism of the 18th century with its belief in
natural law, the power of reason and first principles, as well as beliefs and spirit of the
French Revolution. Germany, after having witnessed the rationalistic ideologies of the
French Revolution, gave birth to the founder and foremost proponent of legal historicism.

Main Proponents

Freidrich Karl von Savigny (Germany)

The historical school of jurists was founded by the German jurist and historian Freidrich Karl
von Savigny (1779-1861). Its central idea was that a nation's customary law is its truly
living law and that the task of jurisprudence is to uncover this law and describe in historical
studies its social provenience.5

Savigny claimed that the law proceeds from the German term volksgeist, which translates
to national spirit. It was used in the past to encourage German-speaking people to forge a
national and cultural identity. According to Savigny, law unfolds from the spirit of the
people6, just like the language and constitution of a person are determined by the particular
character of a nation7.

As in other schools of thought, acceptance of this approach did not necessarily mean
agreement on its theoretical or practical consequences.

To followers of Savigny the identification of law with custom and tradition and the
Volksgeist, or genius peculiar to a nation or folk, generally meant a rejection of rationalism
and natural law; a rejection of the notion of law as the command of the state or sovereign,
and therefore a disparagement of legislation and codification; and a denial of the possibility
of universally valid rights and duties and of the individual's possession of non-derivable and
inalienable rights. In positive terms, historical jurisprudence identified law with the
consciousness, or spirit, of a specific people.

Law is "found" by the jurist and not "made" by the state or its organs. Law is a national or
folk and not a political phenomenon; it is a social and not an individual production; like
language, it cannot be abstracted from a particular people and its genius; it is a historical
necessity and not an expression of will or reason, and therefore it cannot be transplanted.

Sir Henry James Sumner Maine (England)

In England, the main proponent of this theory was Sir Henry James Sumner Maine (1822-
1888), historian and comparative jurist famous for the thesis outlined in his book Ancient
Law: that in the ancient world individuals were tightly bound by status to traditional groups,
while in the modern one, in which individuals are viewed as autonomous agents, they are

4 Nicolo F. Bernardo and Oscar B. Bernardo, PhiLawsophia: Philosophy and Theory of Philippine Law
(Revised Edition) 2017
5 Historical School of Jurisprudence, encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-
and-maps/historical-school-jurisprudence
6 PhiLawsophia
7 Historical School of Jurisprudence - Carl Von Savigny (2016), Nonso Robert Attoh, Faculty of Law,
University of Nigeria, youtube.com

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 Legal Historicism

free to make contracts and form associations with whomever they choose. 8 He argued that
legal institutions must be studied historically to be understood.9

In reaction against natural law and under the influence of Thomas Hobbes, the tendency in
England had been to regard law as the command of the state, and the task of the jurist was
conceived as a concern with the analysis of positive law without regard to historical or
ethical considerations. Maine broke with these traditional attitudes.

Maine rejected the natural law, rationalistic, and a priori approaches to the nature of law. In
his Early History of Institutions (London, 1875) he saw a people's law as compounded of
opinions, beliefs, and superstitions produced by institutions and human nature as they
affected one another. Indeed, English common law seemed better to exemplify Savigny's
views than did the law of Germany, which drew heavily on Roman law. But as an
Englishman, Maine saw in law more than a people's customs; he observed and took into
account the creative and reforming work of Parliament, and so he was led to recognize
legislation as an instrument of legal growth. And he found that equity and legal fictions
played creative roles in the common law. In these respects he departed radically from
Savigny's monistic approach to law and its sources.

Maine's comparative historical studies, which took into account diverse legal systems, kept
him from a belief in the mystical uniqueness of a people and its genius and its law; he
observed uniformities as well as differences in different legal orders, and so he was led to
suggest that similar stages of social development may be correlated with similar stages of
legal development in different nations. Maine differed from Savigny also in believing that
custom might historically follow an act of judgment, so that the jurist could be seen to have
had a creative role in making the law, even though he claimed only to have found it. Maine
also noted the part played in early societies by the codification of customary law. In
revealing the ideals operative in a society at a particular stage of its development and in
relating them to social conditions, Maine stimulated the development of the use of the
sociological method in jurisprudence. It thus became apparent that just as law cannot be
divorced from history, so, too, it cannot be divorced from philosophy and sociology. Thus, if
Savigny's historical jurisprudence was mainly conservative in import, Maine's work had a
predominantly liberalizing effect. Then too, Maine's work influenced the development of
comparative legal studies.

Perhaps the greatness of historical jurisprudence lay in the fact that it provided its own seed
of dissolution; for once it is admitted that law is historically conditioned, it is as impossible
to limit the conception of law to a Volksgeist as to the commands of the sovereign; all forms
of social control and all sources of law emerge as subjects for legitimate consideration and
study.10

8 Wikipedia, en.wikipedia.org/wiki/Henry_James_Sumner_Maine
9 Idem
10 Historical School of Jurisprudence, encyclopedia.com/humanities/encyclopedias-almanacs-
transcripts-and-maps/historical-school-jurisprudence

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 Legal Historicism

Republic of the Philippines vs People’s Republic of China

IN THE MATTER OF THE SOUTH CHINA SEA ARBITRATION11

The controversial dispute between the Republic of the Philippines (Philippines) and the
People's Republic of China (China) concerning maritime rights over the West Philippine Sea,
previously known as the South China Sea, originated from the legal action taken by the
Philippines commencing compulsory arbitration against China pursuant to the 1982 United
Nations Convention on the Law of the Sea (UNCLOS).

On July 12, 2016, the Permanent Court of Arbitration (PCA) ruled in favor of the Philippines
regarding the parties’ respective rights and obligations with regard to the waters, seabed,
and maritime features of the West Philippine Sea.

The Antecedents

The South China Sea is a semi-enclosed sea in the western Pacific Ocean. It lies to the
south of China, to the west of the Philippines, to the east of Vietnam, and to the north of
Malaysia, Brunei, Singapore, and Indonesia. Aside from being a crucial shipping lane and a
rich fishing ground, the South China Sea is also the location of the Spratly Islands, and
archipelago of small islands and coral reefs. Long known principally as a hazard to
navigation and identified on nautical charts as the “dangerous ground”, the Spratly Islands
are the site of longstanding territorial disputes among some of the littoral States of the
South China Sea.

Both the Philippines and China are parties to UNCLOS, the Philippines having ratified it on 8
May 1984, and China on 7 June 1996. It was adopted as a “constitution for the oceans,” in
order to “settle all issues relating to the law of the sea,” and has been ratified by 168
parties.

By Notification and Statement of Claim dated 22 January 2013, the Philippines initiated
arbitration proceedings against China pursuant to Articles 286 and 287 of the Convention
and in accordance with Article 1 of Annex VII of the Convention.

China, however, has consistently rejected the Philippines’ recourse to arbitration and
adhered to a position of neither accepting nor participating in these proceedings. It argued,
among others, that China and the Philippines have agreed through bilateral instruments to
settle their relevant disputes through negotiations.

Despite its non-participation, the Tribunal concluded that China is a party to the arbitration
and is bound under international law by any awards rendered by the Tribunal. The latter has
also taken steps to ascertain China’s position on the issues for decision, based on the
statements made by Chinese officials publicly and in communications to the members of the
tribunal.

The Core Issues

Based on its submissions, the Philippines submitted four main issues:

1. It sought a declaration from the Tribunal that China’s rights and entitlements in the
South China Sea must be based on the Convention and not on any claim to historic
right, such as China’s claim to rights within the “nine-dash line” marked on Chinese
maps;

11 PCA Case Nº 2013-19, July 12, 2016

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 Legal Historicism

2. It asked the Tribunal to resolve a dispute between the parties concerning the
entitlements to maritime zones generated under the Convention as to Scarborough
Shoal, Spratly Islands and certain maritime features in the South China Sea that are
claimed by both the Philippines and China;
3. It contended that China has violated the Convention by interfering with the exercise
of the Philippines’ rights under the Convention and failing to protect the marine
environment by tolerating Chinese fisherman in the harvesting of endangered
species and the use of harmful fishing methods; and
4. It asked the Tribunal to find that China has aggravated and extended the disputes
between the parties during the course of the arbitration by restricting access to a
detachment of Philippine marines stationed at Second Thomas Shoal, locally known
the Ayungin Shoal.

The Arguments

I. Rights and entitlements to the South China Sea

The Philippines submitted that China is entitled only to those rights provided for by the
Convention and that these rights are not supplemented or modified by any historic rights,
including within the area marked by the ‘nine-dash line’ on Chinese maps.

China’s Position

China’s claim to historic rights in the maritime areas of the South China Sea has been set
out in a record of legislation and a series of declarations:

● When China was under the control of its Republican Government in the 1930s, it
issued a decree declaring a territorial sea of three nautical miles. Prior to that
declaration China appears to have distinguished between the “inner ocean” and the
“outer ocean” in its domestic laws, and to have included references to a territorial
sea in a number of international agreements, but never to have fixed the extent or
boundaries of that zone.
● On 4 September 1958, China issued a Declaration of the Government of the People’s
Republic of China on China’s Territorial Sea, which provided, in part, the breadth of
the territorial sea of the People’s Republic of China shall be twelve nautical miles.
● On 25 February 1992, China enacted a Law on the Territorial Sea and the
Contiguous Zone which provided for the scope of its territorial sea in relation to its
land territory.
● On 15 May 1996, China issued a Declaration of the Government of the People’s
Republic of China on the Baselines of the Territorial Sea, setting out certain
coordinates for the baselines from which its territorial sea would be measured.
● On 7 June 1996, in conjunction with its ratification of the Convention, China
declared an exclusive economic zone in the following terms:
1) In accordance with the provisions of the United Nations Convention on the
Law of the Sea, the People’s Republic of China shall enjoy sovereign rights
and jurisdiction over an exclusive economic zone of 200 nautical miles and
the continental shelf.
2) The People’s Republic of China will effect, through consultations, the
delimitation of boundary of the maritime jurisdiction with the states with
coasts opposite or adjacent to China respectively on the basis of international
law and in accordance with the equitable principle.
3) The People’s Republic of China reaffirms its sovereignty over all its
archipelagoes and islands as listed in article 2 of the Law of the People’s

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Republic of China on the Territorial Sea and Contiguous Zone which was
promulgated on 25 February 1992.
4) The People’s Republic of China reaffirms that the provisions of the United
Nations Convention on the Law of the Sea concerning innocent passage
through the territorial sea shall not prejudice the right of a coastal state to
request, in accordance with its laws and regulations, a foreign state to obtain
advance approval from or give prior notification to the coastal state for the
passage of its warships through the territorial sea of the coastal state.
● On 26 June 1998, China enacted a Law on the Exclusive Economic Zone and the
Continental Shelf.

What has become known as the ‘nine-dash line’ first appeared on an official Chinese map in
1948. A similar line had also appeared in privately produced cartography as early as 1933.
In this original form, the map featured 11 dashes.

Philippine’s Position

The argument of the Philippines revolves around the premise that any rights that China may
have had in the maritime areas of the South China Sea beyond those provided for in the
Convention were extinguished by China’s accession to the Convention and that China never
had historic rights in the waters of the South China Sea.

According to the Philippines:

● China “first claimed the existence of such rights on 7th May 2009.” Chinese historic
maps dating back to 1136, including those purporting to depict the entirety of the
Empire of China, consistently show China’s territory extending no further south than
Hainan. For periods of the 14th century and for much of the 15th and 16th centuries,
the Imperial Chinese Government actively prohibited maritime trade by Chinese
subjects.
This ambivalent attitude to seafaring explains, for the Philippines, China’s muted reaction to
the activities of European States in the South China Sea and its lack of protest to
European navigation and the establishment of colonies in Southeast Asia, beginning
in the 16th century.
● When China “sought to assert its claim to the South China Sea islands,” following the
defeat of Japanese forces in the Second World War, the plans included an effort to
develop Chinese names for the features, the majority of which were then identified
only by Chinese transliterations of their English names: “Lord Auckland Shoal was
thus ‘Ao ke lan sha’, and Mischief Reef ‘Mi-qi fu’. Gaven Reef was ‘Ge wen’, and Amy
Douglas Reef ‘A mi de ge la’.” Based on this record, the Philippines questions how
China could have historic rights in an area “over which it had so little involvement or
connection that most of the features had no Chinese names.”
● Any Chinese historical claims to the features of the South China Sea did not, until
2009, “include a claim to the waters beyond their territorial seas.” China’s support
of the three-mile territorial sea limit during the Second UN Conference on the Law of
the Sea in 1960, as well as the fact that China’s Declaration of the Government of
the People’s Republic of China on China’s Territorial Sea refers to the Spratly Islands
as being “separated from the mainland and its coastal islands by the high seas,” and
not by any maritime area in which China had particular entitlements. This has also
been the understanding, until recently, of Chinese scholars working from the
archives of the People’s Republic of China.
● Finally, when China did make clear in May 2009 that it claims historic rights in the
maritime areas within the ‘nine-dash line’, the Philippines submits that this was
promptly objected to by the other littoral States of the South China Sea.

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Conclusion

The Tribunal concluded that China’s claim to historic rights to the living and non-living
resources within the “nine-dash line” is incompatible with the Convention to the extent that
it exceeds the limits of China’s maritime zones. This is apparent in the text of the
Convention which addresses the rights of other States within the areas of the exclusive
economic zone and continental shelf and leaves no space for an assertion of historic rights.
Accordingly, upon China’s accession to the Convention and its entry into force, any historic
right that China may have had to the resources within the “nine-dash line” were
superseded.

The Application

Both the Philippines and China, in support of their individual arguments, resorted to legal
historicism to refute each other’s claims over the maritime rights in the South China Sea.
The Philippines pointed out the many inconsistencies in China’s usage of historic rights as a
basis of its entitlement over the disputed area. China, on the other hand, used legal history
in an attempt to prove its position that the “nine-dash line” rules over the laws promulgated
by the 1982 UNCLOS.

In the end, the Tribunal ruled against China’s claim and used, once again, legal historicism
to trace back the evolution of the laws which founded the Convention and that China, as a
child of this Convention, must adhere to the laws in the name of fairness and justice.

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G.R. No. 207246

JOSE M. ROY III, Petitioner

vs.
CHAIRPERSON TERESITA HERBOSA, THE SECURITIES AND EXCHANGE
COMMISSION, and PHILIPPINE LONG DISTANCE TELEPHONE COMP ANY,,
Respondents
x-----------------------x
WILSON C. GAMBOA, JR., DANIEL V. CARTAGENA, JOHN WARREN P. GABINETE,
ANTONIO V. PESINA, JR., MODESTO MARTINY. MAMON III, and GERARDO C.
EREBAREN, Petitioners-in-Intervention,
x-----------------------x
PHILIPPINE STOCK EXCHANGE, INC. Respondent-in-Intervention,
x-----------------------x
SHAREHOLDERS' ASSOCIATION OF THE PHILIPPINES, INC., Respondent-in-
Intervention.

Facts:

On June 28, 2011, the court issued the Gamboa decision, the dispositive portion of which
reads: the 1987 Constitution refers only to the shares of stock entitled to vote in the
election of directors, and thus in the present case only to common shares, and not to the
total outstanding capital stocks (common and non-voting preferred shares). Respondent
Chairperson of Securities and Exchange Commission is directed to apply this definition of
the term “capital” in determining the extent of allowable foreign ownership in respondent
Philippine Long Distance Telephone Company, and if there is a violation of section 11,
Article XII of the 1987 Constitution, to impose the appropriate sanctions under the law.

On October 18, 2012, the Gamboa Decision attained its finality and entry of judgment was
thereafter issued onDecember 11, 2011.

On November 6, 2012, SEC posted a notice on its website inviting the public to attend a
public dialog and to submit comments on the draft memorandum circular on the guidelines
to be followed in determining compliance with Filipino ownership requirement in public
utilities under Sec. 11, Article XII of the 1987 Constitution pursuant to the Court’s directive
in the Gamboa Decision.

On November 9, 2012, over 100 representatives from various organizations, government

agencies, academe, and private sectors attended.

On January 8, 2013, the SEC received the copy of the entry of judgment from the Court
certifying that on October 18, the Gamboa decision had become final and executory.

On March 25, 2013, the SEC posted another notice in its website soliciting from the public
comments and suggestions on the draft guidelines.

On April 22, 2013, Atty. Roy submitted his comment on the draft guidelines.

On May 20, 2013, SEC issued SEC MC No. 8 “Guidelines on compliance with Filipino-Foreign
Ownership requirements prescribed in the constitution/existing laws by corporation engaged
in the nationalized and partly nationalized activities.

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 Legal Historicism

On June 10, 2013, Atty. Roy filed a petition assailing the validity of SEC-MC No. 8 not
conforming to the letter and spirit of Gamboa decision and resolution and for having been
issued by the SEC with grave abuse of discretion. Atty. Roy prays that the Court declare
SEC-MC No. 8 unconstitutional and direct the SEC to issue a new guideline regarding the
determination of compliance with Sec. 11, Article XII of the 1987 Constitution in accordance
with Gamboa. Also, Atty. Roy seeks to apply the 60-40 Filipino ownership requirement
separately to each class of shares of a public utility corporation, whether common, preferred
non voting, preferred voting or any other class of shares.

Issue:

Whether the SEC gravely abused its discretion in issuing SEC-MC No. 8 in light of the
Gamboa decision and resolution.

Ruling:

The Court rules that SEC-MC No. 8 is not contrary to the Court’s definition and
interpretation of the term capital. The Court also denied the petition for failing to show
grave abuse of discretion in the issuance of SEC-MC No. 8.

The Court defined the term “capital” in Sec. 11, Article XII of the Constitution refers only to
shares of stock entitled to vote in the election of directors, and thus in the present case only
to common shares, and not to the total outstanding capital stock comprising both common
and nonvoting preferred shares. The Court adopted the definition of “capital” in Sec. 11,
Article XII of the 1987 Constitution in furtherance of the “intent and letter of the
constitution that the State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos’ broad definition unjustifiably disregards who owns the all-
important voting stock, which necessarily equates to control the public utility. The Court
noted that the foregoing interpretation is consistent with the intent of the framers of the
Constitution to place in the hands of Filipino the control and management of public utilities.

The Court also stated that “mere legal title is insufficient to meet the 6o percent Filipino
owned “capital” required in the constitution. Full beneficial ownership of 60 percent of the
outstanding capital stock, coupled with 60 percent of the voting rights, is required. The legal
and beneficial ownership of 60 percent of the outstanding capital stock must rest in the
hands of Filipino Nationals in accordance with the Constitutional mandate. Otherwise, the
corporation is considered as non-Philippine Nationals.

Hence, the Court ruled that the SEC acted pursuant to the Court’s pronouncements in both
the Gamboa decision and Gamboa Resolution, then it could not have gravely abused its
discretion. In addition to that, the portion found in the body of the Gamboa resolution which
the petitioner relies upon is an obiter dictum and the SEC could not be expected to apply as
it was not a binding pronouncement of the court.

The Application

In Roy v SEC, Petitioner Atty. Roy assails the validity of SEC-MC No. 8 not confirming to the
letter and spirit of Gamboa Decision and Gambos Resolution. In applying Legal History, the
court defined the term "capital" in Sec. 11 of Art XII of the 1987 Constitution and adopted
its meaning in furtherance to the letter and intent of the Constitution. Therefore, the court
ruled that the interpretation of the term "capital" is consistent with the intent of the framers
of the constitution to place the control and management of public utilities in the hands of
Filipinos.

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People v Isnain

G.R. No. L-2857; February 28, 1950

Bengzon, J

Facts:

In the morning of March 7, 1947, Urbano Cruz, the encargado of the coconut grove of
Arturo Eustaquio in Latuan and Balagtasan, City of Zamboanga, was informed by Lazaro
Viernes, one of the guards, that there were three persons stealing coconuts in the said
plantation. Cruz called Ernesto Fargas, the truck driver of Eustaquio and accompanied by
some laborers, both proceeded to the plantation. There the group saw three persons,
chopping coconuts. When they approached, the trespassers started to run away, but Cruz
fired a shot into the air, and one stopped and was apprehended. He turned out to be the
herein appellant, Moro Isnain, who upon investigation by the precinct commander of the
corresponding police station (Lt. Bucoy) acknowledged his culpability, asked for pardon and
identified his confederates as Moros Addi and Akik (who are still at large).

Before the justice of the peace Isnain pleaded guilty to the charge. However, in the court of
first instance Isnain changed his mind. Isnain admitted that he had been arrested during
the raid but submitted the flimsy excuse that he had merely gone to the place because he
was thirsty. Isnain confessed that he joined the other two thieves in order to drink coconut
water.

As a defense, Attorney de officio of Isnain questioned the constitutionality of Article 310 of

the Revised Penal Code otherwise known as qualified theft. According to the attorney de
officio, Article 310 of the Revised Penal Code punishes the larceny of such products more
heavily than the taking away of similar produce, such as rice and sugar, and thereby denies
Isnain the equal protection of the laws.

Issue:

Whether Article 310 of the Revised Penal Code otherwise known as qualified theft is
unconstitutional.

Ruling:

According to the Supreme Court, Article 310 is constitutional. The constitutional guarantee
of equal protection of the law requires the treatment alike, in the same place and under like
circumstances and conditions, of all persons subject to state legislation. However, the state
may exercise a large measure of discretion in creating and defining criminal offenses. Also,
the state may make classification as to persons amenable to punishment without violating
the equal protection guarantee. As long as the classifications are reasonable and the
legislation bears equally on all in the same class, and, where a reasonable classification is

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made as between persons or corporations, the persons or corporation in each class may be
dealt with in a manner different from that employed with regard to the persons or
corporations in other classes.

In this case, the Supreme Court said that, the purpose of the heavier penalty is to
encourage and protect the development of the coconut industry as one of the sources of our
national economy. Unlike rice and sugar cane farms where the range of vision is
unobstructed, coconut groves can not be efficiently watched because of the nature of the
growth of coconut trees; and without a special measure to protect this kind of property, it
will be, as it has been in the past the favorite resort of thieves. Therefore, some reason for
the special treatment accorded the industry; and as it can not be said that the classification
is entirely without basis.

The Application

By historicism on the contrary, he means the tendency to regard every argument or idea as
completely accounted for by its historical context, as opposed to assessing it by its merits.
Historicism does not aim for the 'laws' of history, but premises the individuality of each
historical situation.

PP v. Isnain, the verdict of guilty was held, since the defense choose to attack the
constitutionality of the article 310 of the rpc, one whose context shows, a substantial
difference of theft of grains, and of coconuts, that a higher penalty would be placed on
coconuts due to the ease in which theft can be done. A judgement rendered based on
historical context.

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Bowers v. Hardwick12
478 U.S. 168
June 30, 1986

Facts:
In August 1982, Hardwick was charged with violating the Georgia statute criminalizing
sodomy by commiting that act with another adult male in the bedroom of the respondents
home. The Georgia Code Ann. § 16-6-2 provides that:
(a) A person commits the offense of sodomy when he performs or submits to any sexual
act invoking the sex organs of one person and the mouth or anus of another.
(b) A person convicted of the offense of sodomy shall be punished by imprisonment for
not less than one nor more than 20 years.
Hardwick challenged the constitutionality of the statute, as it criminalized consensual
sodomy. He claimed that he was a practicing homosexual, and that the Georgia sodomy
statute placed him in imminent danger of arrest, which violates the Federal Constitution.

Issue:
Whether the Federal Constitution confers a fundamental right upon homosexuals to engage
in sodomy, which would invalidate the laws of many state that still make such conduct
illegal.

Held:
No; In determining rights that are immune from federal or state regulation or proscription,
the court has decided to identify the nature of the rights qualifying for heightened judicial
protection. based on the Due Process Clauses of the Fifth and Fourteenth Amendments.

In Palko v. Connecticut (1937), this category includes those fundamental liberties that are
“implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist
if [they] were sacrificed.” Further, in Moore v. East Cleveland (!977), these liberties were
characterized as those that are “deeply rooted in this Nation’s history and tradition.”

As such, neither of these formulations of rights that enjoy heightened judicial protection
would extend a fundamental right to homosexuals to engage in acts of consensual sodomy.

In using Legal Historicism, the Supreme Court continued that, proscriptions against that
conduct have ancient roots. Sodomy was a criminal offense at common law and was
forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868,
when the Fourteenth Amendment was ratified, 32 out of 37 States had criminal sodomy
laws.

Lastly, the Supreme Court stated that they were unpersuaded that the sodomy laws of
around 25 States would be invalidated on the basis that the law is not rational outside of
the majority’s belief that homosexual sodomy is immoral and unacceptable.

12 Bowers v. Hardwick, 478 U.S. 186 (1986).

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Lawrence v. Texas13
539 U.S. 558
June 26, 2003

Facts:
In Houston, Texas, the officers of the Harris County Police Department were dispatched to a
private residence in response to a reported weapons disturbance. As they entered the
apartment of Lawrence, they observed that Lawrence and another man, Garner, were
engaging in a sexual act. They were both arrested, held in custody, and charged and
convicted before a Justice of the Peace. The complaints charged them for, “deviate sexual
intercourse, namely anal sex, with a member of the same sex.” According to the Texas
Penal Code Ann. § 21.06(a) (2003): “ A person commits an offense if he engages in deviate
sexual intercourse with another individual of the same sex.” The statute continues to define,
“deviate sexual intercourse,” as:
(a) Any contact between any part of the genitals of one person and the mouth or anus of
another person; or
(b) The penetration of the genitals or the anus of another person with an object.
The petitioners challenged the statute as a violation of the Equal Protection Clause of the
Fourteenth Amendment, but their contentions were rejected. The Court of Appeals heard
the case en banc, the court rejected the constitutional arguments and affirmed the
convictions, while citing the earlier Bowers v. Harwick case, as the controlling doctrine on
federal due process.

Issue:
Whether Petitioners’ criminal convictions under the Texas “Homosexual Conduct” law violate
the Fourteenth Amendment guarantee of equal protection of laws.
Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home
violate their vital interests in liberty and privacy protected by the Due Process Clause.
Whether Bowers v. Harwick should be overruled.

Held:
Yes; In Planned Parenthood of Southeastern Pa. v. Casey, the Court reaffirmed the
substantive force of the liberty protected by the Due Process Clause. The decision confirmed
that laws and tradition afford constitutional protection to personal decisions relating to
marriage, procreation, contraception, family relationships, child rearing, and education. At
the heart of liberty is the right to define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life. Persons in homosexual relationship may seek
autonomy for these purposes, just as homosexual persons do. The decision in Bowers would
deny them that right. Further, in Romer v. Evans, the Court struck down class-based
legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer
invalidated an amendment to Colorado’s constitution which is named as a solitary class
persons who were homosexuals, lesbians, or bisexuals … as it deprived them of protection
under state antidiscrimination laws.

13 Lawrence v. Texas, 539 U.S. 558 (2003)

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 Legal Historicism

Yes; When homosexual conduct is made criminal by the law of the State, that declaration is
an invatation to subject homosexual persons to descrimination both in the public and in
private spheres. The offense is a minor offense in the Texas legal system, but it remains a
criminal offense with all that imports for the dignity of the persons charged, as the person
will bear on their record the history of their criminal convictions.

Yes; The right the petitioners seek in this case has been accepted as an integral part of
human freedom in many other countries. Bowers itself causes uncertainty, for the
precedents before and after its issuance contradict its central holding. Bowers was not
correct when it was decided, and it is not correct today. It ought not to remain binding
precedent. It is now overruled. The present case involves two adults who, with full and
mutual consent from each other, engaged in sexual practices common to a homosexual
lifestyle. They are entitled to respect for their private lives. The State cannot demean their
existence or control their destiny by making their private sexual conduct a crime.

In using Legal Historicism, the Supreme Court analyzed the claims held in Bowers regarding
the history in the criminalization of sodomy. The Supreme Court noted that there is no
longstanding history of laws directed at homosexual conduct as a distincy matter. The early
American sodomy laws were not directed at homosexuals, but was meant to prohibit
nonprocreative sexual activity more generally, as a substantial number of sodomy
prosecutions and convictions were for predatory acts against those who could not or did not
consent.

Further, the reported decisions concerning the prosecution of consensual, homosexual

sodomy between adults for the years 1880-1995 were not always clear in details, but a
significant number involved conduct in a public space.
In the 1970’s, only nine States have singled out same-sex relations for criminal prosecution.
Post-Bowers, some of these States did not adhere to the policy of suppressing homosexual
conduct. Over the last decades, States with same-sex prohinitions have moved towards
abolishing them.

In the Supreme Court’s decision in Lawrence v. Texas, the Court stated that, “in all events
we think that our laws and traditions in the past half century are of most relevance here …
which references show an emerging awareness that liberty gives substantial protection to
adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

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 Legal Historicism

Krivenko v. Register of Deeds

GR No. L-360
15 November 1947

Facts: Petitioner Alexander A. Krivenko, an alien, bought a residential lot from Magdalena
Estate, Inc. in December of 1941. The registration of the lot had been interrupted by the
war, but pushed through in 1945. The registration was denied by the Register of Deeds of
Manila on the ground that aliens are prohibited from purchasing or acquiring lands. The case
was brought to the Court of First instance, to which the court sustained the decision of the
Register of Deeds.

Issue: Whether or not an alien under our Constitution may acquire residential land.

Ruling: No, because it must be observed that prior to the Constitution, under section 24 of
the Public Land Act No. 2874, aliens could acquire public agricultural lands used for
industrial or residential purposes, but after the Constitution and under section 23 of
Commonwealth Act No. 141, the right of aliens to acquire such kind of lands is
completely stricken out, undoubtedly in pursuance of the constitutional limitation.
And, again, prior to the Constitution, under section 57 of Public Land Act No. 2874, land of
the public domain suitable for residence or industrial purposes could be sold or leased to
aliens, but after the Constitution and under section 60 of Commonwealth Act No. 141, such
land may only be leased, but not sold, to aliens, and the lease granted shall only
be valid while the land is used for the purposes referred to. The exclusion of sale in
the new Act is undoubtedly in pursuance of the constitutional limitation, and this again is
another legislative construction that the term "public agricultural land" includes land for
residence purposes.

Such legislative interpretation is also in harmony with the interpretation given by the
Executive Department of the Government. Way back in 1939, Secretary of Justice Jose
Abad Santos, in answer to a query as to "whether or not the phrase 'public agricultural
lands' in section 1 of Article XII (now XIII) of the Constitution may be interpreted to include
residential, commercial, and industrial lands for purposes of their disposition," rendered the
following short, sharp and crystal-clear opinion:

Section 1, Article XII (now XIII) of the Constitution classifies lands of the public domain in
the Philippines into agricultural, timber and mineral. This is the basic classification adopted
since the enactment of the Act of Congress of July 1, 1902, known as the Philippine Bill. At
the time of the adoption of the Constitution of the Philippines, the term 'agricultural public
lands' and, therefore, acquired a technical meaning in our public laws. The Supreme Court
of the Philippines in the leading case of Mapa vs. Insular Government, 10 Phil., 175, held
that the phrase 'agricultural public lands' means those public lands acquired from Spain
which are neither timber nor mineral lands. This definition has been followed by our
Supreme Court in many subsequent case.

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 Legal Historicism

Residential commercial, or industrial lots forming part of the public domain must
have to be included in one or more of these classes. Clearly, they are neither
timber nor mineral, of necessity, therefore, they must be classified as agricultural.

Viewed from another angle, it has been held that in determining whether lands are
agricultural or not, the character of the land is the test (Odell vs. Durant, 62 N.W., 524;
Lorch vs. Missoula Brick and Tile Co., 123 p.25). In other words, it is the susceptibility of
the land to cultivation for agricultural purposes by ordinary farming methods which
determines whether it is agricultural or not (State vs. Stewart, 190 p. 129).

Furthermore, as said by the Director of Lands, no reason is seen why a piece of land, which
may be sold to a person if he is to devote it to agricultural, cannot be sold to him if he
intends to use it as a site for his home.

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 Legal Historicism

Cruz vs Secretary of DENR

GR. No. 135385, Dec. 6, 2000

FACTS:
Petitioners Isagani Cruz and Cesar Europa filed a suit for prohibition and mandamus as
citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act
No. 8371, otherwise known as the Indigenous People’s Rights Act of 1997 (IPRA) and its
implementing rules and regulations (IRR). The petitioners assail certain provisions of the
IPRA and its IRR on the ground that these amount to an unlawful deprivation of the State’s
ownership over lands of the public domain as well as minerals and other natural resources
therein, in violation of the regalian doctrine embodied in section 2, Article XII of the
Constitution.

ISSUE:
Do the provisions of IPRA contravene the Constitution?

HELD:
No, the provisions of IPRA do not contravene the Constitution. Examining the IPRA, there is
nothing in the law that grants to the ICCs/IPs ownership over the natural resources within
their ancestral domain. Ownership over the natural resources in the ancestral domains
remains with the State and the rights granted by the IPRA to the ICCs/IPs over the natural
resources in their ancestral domains merely gives them, as owners and occupants of the
land on which the resources are found, the right to the small scale utilization of these
resources, and at the same time, a priority in their large scale development and
exploitation.

Additionally, ancestral lands and ancestral domains are not part of the lands of the public
domain. They are private lands and belong to the ICCs/IPs by native title, which is a
concept of private land title that existed irrespective of any royal grant from the State.
However, the right of ownership and possession by the ICCs/IPs of their ancestral domains
is a limited form of ownership and does not include the right to alienate the same.

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