INTRODUCTION TO LAW

(The Concept of Law, State and Government – A Prelude to the Study of Obligations and Contracts)

By

Atty. REINIER JOHN G. BROFAR

[Sources/References:
Textbook on Law on Obligation and Contracts by Hector De Leon;
Textbook on Philippine Constitution by Hector De Leon;
The Civil Code of the Philippines Annotated by Edgardo Paras]

What is Law?
➢ In a most generic sense, Law is de ined as an ordinance of reason
promulgated for the common good by Him who is in charge.
➢ In modern legal sense, Law is de ined as a rule of civil conduct, just and
obligatory, prescribed and promulgated by the legitimate power of the State,
for common observance and bene it, commanding what is right, and
prohibiting what is wrong.

Functions of Law
1. It provides order to the society/community;
2. It secures justice, resolves con lict, protects interests of the members of the
community and control social relations.

Classi ication of Law according to the manner of promulgation

1. NATURAL LAW – promulgated or prescribed in our conscience, body and
surroundings.
a. Natural Moral Law – It applies to our higher faculties. E.g. to do good
and avoid evil;
b. Law of Nature or Physical Law – It includes the law of gravity and other
laws of our surroundings;
2. POSITIVE LAW – it is promulgated expressly or directly by a higher authority.
a. Divine Positive Law – directly promulgated by God. Eg. The 10
Commandments.
b. Divine-Human Positive Law – It is a law promulgated by the clergy in
order to enforce the Commandments of God. E.g. Laws of the Catholic
Church.
c. Human Positive Law – It is a law promulgated by men for the
governance of the community;

Human Positive Law

➢ In general, it is a reasonable rule of action, expressly or directly promulgated
by competent human authority for the common good, and usually, but not
necessarily, imposing sanction or penalty in case of disobedience. (The term
Human Positive Law also refers to “State Law”).
➢ The sources of Human Positive Law or State law includes: the Constitution,
Legislation or statutes, Executive Orders and Judicial decisions.

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 Classi ication of Human Positive Law
I. According to whether a right is given, or merely the procedure for enforcement
of a right:
a. Substantive law – that which establishes rights and duties. E.g. Civil
Code, Code of Commerce, Corporation Code;
b. Procedural law – that which prescribes the manner of enforcing legal
rights and claims. Eg. Rules of Court.
II. According to the scope or content of law:
a. Private law – that which regulates the relations of members with one
another. Eg. Civil Code and Code of Commerce;
i. NOTE: The Civil Code (Articles 1156 to 1430) covers the
provisions on the Law on Obligations and Contracts. “The Law of
Obligations and Contracts” is the body of rules which deals
with the nature and sources of obligations and the rights and
duties arising from agreements and particular contracts.
b. Public law – that which governs the relations of the individual with the
State or ruler or community as a whole. Eg. Criminal Law and Political
Law/Constitutional Law.

What is a STATE?
➢ A State is a community of persons, more or less numerous, permanently
occupying a de inite portion of territory, having a government of their own to
which a great body of inhabitants render obedience and freedom from
external control.
➢ Essential Elements of a State:
o People – It is a mass of persons living within the state.
o Territory – It includes land, air space, maritime areas over which the
state has jurisdiction or authority.
o Government – It is the agency to which the will of the people are
expressed, formulated and carried out.
o Sovereignty – refers to (1) the power to enforce obedience upon the
inhabitants and citizens [internal sovereignty]; and (2) the
independence or freedom from external or foreign control [external
sovereignty].
➢ Inherent Powers of a State:
o Police Power – it is the power of the State to enact laws or regulations
in relation to persons and property as may promote public health,
public morals, public safety and the general welfare and convenience of
the people.
o Power of Eminent Domain – It is the power of the State to take private
property for public use upon paying to the private owner just
compensation. The proceedings for the exercise of the power of
eminent domain is called expropriation.
o Power of Taxation – It is the power of the State to impose or charge or
burden upon persons, property or property rights, for the use and
support of the Government and to enable it to discharge its appropriate
functions.
▪ [the inherent powers of the State are exercised thru its duly
organized government]

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Types of Government
(1) As to the number of persons exercising the sovereign powers:
a. Monarchy – In this type of government, the supreme or inal authority
is in the hands of a single person without regard to the source of his
election or the nature or duration of his tenure. Eg. a “King”.
b. Aristocracy or one in which the political power is exercised by a few
privileged class.
c. Democracy – it is a type of government in which the political power is
exercised by a majority of the people. It may either be direct
democracy [one in which the policy of the state is formulated and
expressed directly through the people in mass meeting or assembly] or
representative/ republican democracy [one in which the policy of
the state is formulated and expressed through a select body of persons
chosen by the people to act as their representative.
(2) As to the extent of powers exercised by the central or national government:
a. Unitary government – one in which the control of national and local
affairs is exercised by the central or national government;
b. Federal government – one in which the powers of government are
divided between two sets of organ, one for national affairs and the
other for local affairs, each organ being supreme within its own sphere.
(3) As to the relation between executive and the legislative branches of government.
a. Parliamentary government – In this type of government, there is a
union between the legislative branch and executive branch. The
legislature is vested with the power to terminate the tenure of of ice of
the real executive, if the latter fails to perform his function.
b. Presidential government – it is one in which the state makes the
executive branch independent from the legislative branch as regards to
his tenure and as regards to his policies and acts.

Philippine Government
➢ Based on the foregoing classi ication of government, it can be said that the
Philippine Government is a representative democracy, a unitary and
presidential government.

3 Main Branches of Government

1. Executive Branch – It in charge in the execution, enforcement and
implementation of laws.
2. Legislative Branch – It is the lawmaking body of the government. It is
mandated to enact, amend and repeal laws.
3. Judicial Branch – It is in charge in the interpretation of laws. It is the arbiter
of legal controversies involving the proper implementation, enactment, repeal
or amendment of laws.
➢ In the Philippine Government, the Executive Branch is headed President and
Vice-president, and composed of the different departments, such as DOJ, DOH,
DOT, DepEd, etc.; the Legislative Branch is the Congress of the Philippines
composed of the Senate and House of Representatives; the Judicial Branch is
the Supreme Court of the Philippines, under which the other lower courts, like
the Court of Appeals and Regional Trial Courts.

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