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

a. Divine Positive Law, which is promulgated by a divine authority (e.g., the 10

b. Divine-Human Positive Law, which is promulgated under the inspiration of a divine

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.

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
1 E. L. PARAS, CIVIL CODE OF THE PHILIPPINES ANNOTATED 2 (2008).
2
Ibid.
3
Ibid at p. 3.
4
Laws governing the relations between States.
5
Supra note 1 at pp. 4-5.

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 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. 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:

6
See Bustos v. Lucero, 81 PHIL. REP. 640 (1948).
7
584 PHIL. REP. 246 (2008).

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 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.

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.

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.

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 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

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

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 16th 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

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

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 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 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.

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

14
A component of Public International Law.
15
CIVIL CODE, art. 8.
16
Ibid at art. 12.
17
Ibid at art. 11.

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 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-

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.

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