MODULE 1: INTRODUCTION TO LAW

© Ma. Concepcion C. Castro-Santiago & Prince Jan Ronald D. Wacnang

A. Concept of Law

Law, in its most generic sense, is the ordinance of reason

promulgated for the common good. To be fair and useful, the law has to
be promulgated, i.e., made known to those who are expected to follow it. 1

Classification of Law according to Promulgation2

1. Natural Law, which is promulgated impliedly in conscience and body.

It may be further classified as follows:

a. Natural Moral Law, which applies to our higher faculties (e.g., do

good and avoid evil); and

b. Law of Nature, which applies to both our higher and lower

faculties (e.g., the law of gravity).

2. Positive Law, which is expressly promulgated by an authority. It may

be further classified as follows:

a. Divine Positive Law, which is promulgated by a divine authority

(e.g., the 10 commandments);

b. Divine-Human Positive Law, which is promulgated under the

inspiration of a divine authority (e.g., the doctrines of the Catholic
Church); and

c. Human Positive Law, which is promulgated by human authority

(e.g., Statutes or Executive Orders).

In our study of Obligations and Contracts, we will only deal with

Human Positive Law.

B. Human Positive Law

The classic definition of law is one stated by Sanchez Roman, who

says that “law is a rule of conduct, just, obligatory, promulgated by
legitimate authority, and of common observance and benefit.

1
1 E. L. PARAS, CIVIL CODE OF THE PHILIPPINES ANNOTATED 2 (2008).
2
Ibid.

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 Justice Edgardo L. Paras of the Philippine Supreme Court defines
law as a “reasonable rule of action, expressly or directly promulgated by
competent human authority for the common good, and usually, but not
necessarily, imposing a sanction in case of disobedience”.3

Laws in the Philippines have been heavily influenced by Roman

Law, precepts under Spanish and American Laws, as well as
international law4, local customs and traditions, and Islamic Laws.

Classification of Human Positive Law5

1. According to what it establishes:

a. Substantive Law, which establishes rights and duties; and

b. Remedial or Procedural Law, which prescribes the manner of

enforcing legal rights and claims.6

2. According to the scope or content of the law:

a. Private Law, which regulates the relations of the members of a

community with one another (e.g., Civil and Commercial Laws);
and

b. Public Law, which governs the relations of the individual with the
State (e.g., Political Law, Criminal Law, Remedial Law).

3. According to force or effect:

a. Mandatory Laws, which have to be complied with because they

are expressive of public policy. Disobedience is punished either by
direct penalties or by considering an act or contract void or
unenforceable (e.g., Violation of criminal laws would always result
in punishment either by imprisonment or fine or both. Sales or
transfers of real properties must always be in a public instrument;
otherwise, they cannot be enforced in courts.); and

b. Permissive Laws, which may be deviated from, if the individual so

desires. (e.g., As a rule, the seller of a real property is the one
burdened to pay the Capital Gains Tax of 6% and Documentary
Stamp Tax of 1.5%. However, both seller and buyer may agree that
the burden of payment of such taxes would be shifted to the buyer.
3
Ibid at p. 3.
4
Laws governing the relations between States.
5
Supra note 1 at pp. 4-5.
6
See Bustos v. Lucero, 81 PHIL. REP. 640 (1948).

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 Note, however, that the payment of those taxes to the Bureau of
Internal Revenue is still mandatory, regardless of whoever actually
pays for them. What is only act permitted is the shifting of the
burden to pay the said taxes from the seller to the buyer.)

C. Effectivity of Philippine Laws

A law must take effect. It is useless unless the same enters into
force and effectivity. In the Philippines, there are five (5) requisites that
must concur before an ordinary law could take effect:

1. The Law must be approved by the competent authority.

Laws may be in the form of an Act, a Republic Act,

Presidential Decree, Ordinance, Executive Order, Presidential
Proclamation, Memorandum Circulars, and Implementing Rules
and Regulations. The form does not really matter.

In the case of ABAKADA Guro Party List v. Purisima 7,

there are two steps which are required before a bill becomes a
law or statute. First, it must be approved by both Houses of
Congress (Senate & House of Representatives). Second, it must
be presented and approved by the President.

The process of law-making was summarized as follows:

A bill is the draft of a proposed law. It may be introduced

by any member of the House of Representatives or the Senate,
except some measures that must originate only in the former
chamber (e.g., Annual Budget of the Government).

Afterwards, the bill is scheduled for a first reading,

which involves only a reading of the number and the title of the
measure and its referral by the Senate President or the Speaker
of the House for the proper committee for study.

A bill may be terminated in the committee or it may be

recommended for approval, with or without amendments,
sometimes after public hearings are first held thereon. If there
are other bills of the same nature or purpose, they may all be
consolidated into one bill under common authorship or as a
committee bill.

7
584 PHIL. REP. 246 (2008).

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 Once reported, the bill shall be calendared for a second
reading, wherein the bill is read in its entirety, scrutinized,
debated upon, and amended when desired.

When approved, the bill is printed in its final form and

copies thereof are distributed at least three (3) days before the
third reading. On the third reading, the members merely
register their votes and explain them if they are allowed by the
rules. No further debate is allowed.

Once the bill passes third reading, it is sent to the other

chamber, where it will also undergo the three readings. If there
are differences between the versions approved by the two
chambers, a conference committee representing both Houses
will draft a compromise measure which shall be ratified by both
Houses.

The approved bill is enrolled when printed as finally

approved by Congress, thereafter authenticated with the
signatures of the Senate President, the Speaker of the House,
and the Secretaries of their respective chambers.

The final step is the submission to the President of the

Philippines for approval, which may yield three possibilities: (1)
approval by signing the law; (2) veto, which means the bill is
rejected and in such as case, the Congress may overturn the
veto by 2/3 vote; and (3) inaction, in which case, the unsigned
bill will lapse into law after 30 days from receipt.

Where Congress delegates the formulation of rules to

implement the law it has enacted pursuant to sufficient
standards established in the said law, the law must be complete
in all its essential terms and conditions when it leaves the
hands of the legislature. And it may be deemed to have left the
hands of the legislature when it becomes effective because it is
only upon effectivity of the statute that legal rights and
obligations become available to those entitled by the
language of the statute. Subject to the indispensable requisite
of publication under the due process clause, the determination
as to when a law takes effect is wholly the prerogative of
Congress. As such, it is only upon its effectivity that a law may
be executed and the executive branch acquires the duties and
powers to execute the said law. Before that point, the role of the
executive branch, particularly of the President, is limited to
approving or vetoing the law.

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 In the case of ordinances promulgated by the Local
Government Units, they follow the processes for promulgation
prescribed under the Local Government Code.

2. The Law is must be punitive or of general application.

It means that the law must either impose sanctions or is

a law of general application in order for it to be compulsory. A
law of general application means that obedience or compliance
with that law is required of all citizens or a particular class of
citizens. Otherwise stated, it MUST affect public interest.
Otherwise, no obligation may be imposed.

3. There must be publication.

This means that the public must know the contents of the
law. It is part and parcel of our due process rights under Article
III, Section 1 of the 1987 Philippine Constitution.

There can be no application of the maxim dura lex sed lex

(“The law is harsh, but it is the law”), and the proscription
against ignorance of the law (“Ignorance of the law excuses no
one from compliance therewith”8), unless the public has been
informed of the law.9

4. The publication must be made in the Official Gazette or in a

newspaper of general circulation.10

The Official Gazette is the official repository of the official

acts of all branches of the Government.

To be a newspaper of general circulation, it is enough that

it is published for the dissemination of local news and general
information; that it has a bona fide subscription list of paying
subscribers; and that it is published at regular intervals. The
newspaper must not also be devoted to the interests or
published for the entertainment of a particular class,
profession, trade, calling, race or religious denomination. The
newspaper need not have the largest circulation so long as it is
of general circulation.11

8
CIVIL CODE, art. 3.
9
See Tañada v. Tuvera, G.R. No. L-63915, April 24, 1985.
10
CIVIL CODE, art. 2.
11
Perez v. Perez, 494 PHIL. REP. 68 (2005).

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 By convention, national newspapers such as the
Philippine Star, The Philippine Daily Inquirer, and the Manila
Bulletin are newspapers of general circulation. The Harvard
Law Journal is not a newspaper of general circulation because
it only caters to a specific interest. On the other hand, tabloids
such as Bandera and Abante may qualify as a newspaper of
general circulation for as long as they do not only cater to a
specific interest.

5. Complete publication.

The publication of the law must be in full; otherwise,

there is no publication at all. It is not enough that the title of
the law or its number be published. ALL its contents must be
published because verily, the purpose of publication is to
inform the public of its contents. If there is no publication in
full, the law cannot take effect.12

After compliance with all these requirements, the law will, as a

rule, take effect after 15 days following (meaning on the 16 th day) the
completion of its publication. Should the law itself provide for another
day of effectivity, that day prescribed by that law shall be followed. Thus,
where a law states that it shall take effect immediately, it will take effect
immediately but only after full publication.

D. Hierarchy of Laws

Under the Philippine legal system, the 1987 Constitution is the

fundamental and supreme law of the land. A constitution is “that body of
rules and maxims in accordance with which the powers of sovereignty
are habitually exercised”13. These powers of sovereignty are police power
(the power to regulate), eminent domain (the power to take private
property for public purposes), and the power of taxation (the power to
raise revenues). The Constitution also provides for the basic structure of
our Government and provides for basic the basic rights under the Bill of
Rights (Article III). Any law which is contrary to the Constitution is void
and cannot be given effect.

Statutes are the Acts of Congress pursuant to its Legislative

Powers. Outside the Constitution, they are the most superior form of law.
Under the regime of the 1987 Constitution, they are in the form of
“Republic Acts” which undergoes the processes as discussed in the

12
See Tañada v. Tuvera, G.R. No. L-63915, April 24, 1985.
13
T. M. COOLEY, CONSTITUTIONAL LIMITATIONS (1868).

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 previous section. The subject matters of statutes can be of infinite
variety, for as long as they do not contravene the 1987 Constitution.
Of the same authority and effectivity as statutes are International
Treaties or Conventions14, which is a result of negotiations between our
Government and other States. Their subject matters are usually of
sovereign significance, meaning, it must affect the diplomatic
relationship between the contracting States. In the Philippines, these
treaties are given effect by the ratification or concurrence of the Senate
by 2/3 vote. Also of the same force and effect as statutes are jus cogens
or peremptory norms of international law, which are well-settled
principles of international law that cannot be set aside by any State.
Example of jus cogens include prohibitions against crimes against
humanity, genocide, and human trafficking.

Inferior to statutes, treaties, and the peremptory norms are what

are called sub-ordinate legislations. They are usually promulgated by
the different administrative agencies of the Government pursuant to a
statute that mandates the promulgation of sub-ordinate legislation or
pursuant to a treaty. The purpose of sub-ordinate legislation is to provide
the details or fill in the gaps that are not contained in the statute or
treaty that are necessary for its implementation, considering the
expertise of the administrative agencies concerned. These are usually in
the form of Implementing Rules and Regulations, Memorandum
Circulars, etc. The limitations to sub-ordinate legislation are: (1) they
must not contravene the very provisions of the statute it implements and
the 1987 Constitution; and (2) they must not make any right or
obligation provided under the statute more cumbersome to attain or to
comply with (e.g., it must NOT add requirements to avail of a certain
right already granted by the statute).

Likewise considered sub-ordinate to statutes and treaties are the

ordinances promulgated by the various Local Government Units,
whether they are promulgated by the Provinces, Cities, Municipalities,
and the Barangays.

Judicial decisions interpret the application of the different laws of

in the Philippines and may even declare statutes, treaties, sub-ordinate
legislation, and ordinances when they contravene the 1987 Constitution.
While they are not strictly laws, “they form part of the legal system of the
Philippines”.15 However, note that only decisions by the Supreme Court
of the Philippines can be made binding in all other courts and the
one which is considered as law. Decisions by inferior courts can only
be made binding to the parties of the case.

14
A component of Public International Law.
15
CIVIL CODE, art. 8.

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 To some extent, customs and traditions may be given effect in our
legal system. However, the Civil Code of the Philippines prescribes that
they must “be proved as a fact, according to the laws of evidence” 16 and
not be “contrary to law, public order or public policy” 17 to be given effect.

To summarize, the following is the hierarchy of laws in the

Philippines:

1. The 1987 Constitution

2. Statues, Treaties, Peremptory Norms of International Law
3. Sub-ordinate Legislation and Ordinances
4. Customs and Traditions, when proven

E. Civil Law and the Civil Code of the Philippines

Civil Law is that branch of the law that generally treats of the
personal and family relations of an individual, his property and
successional rights, and the effects of his obligations and contracts.18

While most of our civil laws are found in the Civil Code, still the
Civil Code of the Philippines is not the only place where we can find our
civil laws. A Civil Code is a compilation of existing civil laws,
scientifically arranged into books, titles, chapters, and subheads and
promulgated by legislative authority. A codification may be necessary to
provide for simplicity, unity, order, and reform in legislation. From time
to time, however, additional civil statutes, civil presidential decrees
(during the existence of martial law), or civil executive orders may be
promulgated.19

The Civil Code of the Philippines is divided into four books. The
first book refers to persons, the second book to property, ownership, and
its modifications, the third book refers to the different modes of acquiring
ownership, and the fourth book to obligations and contracts, which will
be the focus of this subject. The fourth book also covers special contracts
which will be tackled in your future law subjects.

The Civil Code of the Philippines took effect on August 30, 1950.20

-oOo-

16
Ibid at art. 12.
17
Ibid at art. 11.
18
1 E. L. PARAS, CIVIL CODE OF THE PHILIPPINES ANNOTATED 5 (2008).
19
Ibid at pp. 5-6.
20
Lara v. Del Rosario, G.R. No. L-6339, April 20, 1954.