Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Common Law1
Plebisitia Plebeans
The 2 exeisted with dual roles.
System
2 consuls Patricians
tribunes plebeans
*Fiction between classes
Consoldation: Tribune terectilios and the Dimitri
Proposal: 10 Plebeans to draft common set of laws
5 patricians and 5 Plebeans: but, 10 patricians were elected.
Draft of laws: 12 bronze tablets
fundamental laws for all (Laws of the 12 tablets)
450 BC Leges duodecim Tabularum
founder of Civil Law tradition
beginning of Roman law
served as the basic law for 1000 years
Expansion of Rome: Republic to Empire to World State
3 Punic wars (Phoenicians)
264 164 BC
Hannibal 2nd war marched army of soldiers and elephants and
almost conquered Rome
146 BC Rome won (Carthage)
Creation of Senate
Senex Old man
Senate assembly of old men
Triumvirate Cesar, Casus, Pompey (61 BC)
Worked under senate, administrative functions exercised
Casus was later killed by Particians.
Division of territories to administer:
Cesar West (conquered gaul, and wrote his jottings on the Gaullic
war)
Pompey East (married cesars daughter)
Senate named him Dictator for life. Named the 5 th month after him:
July
Comparative
Law
2)
3)
4)
explained
and
applied
to
Comparative
Law
France
-
Civil-law
countries
have
comprehensive codes, often
developed from a single drafting
event. The codes cover an
abundance of legal topics,
sometimes treating separately
private law, criminal law, and
commercial law.
Law
Notes
on
the
movie,
A
Civil
Action:
(taken
http://home.comcast.net/~dkennedy56/woburn_realstory.html)
from
Civil reforms
William Thilly, an MIT scientist who's studying the relationship between
chemical exposure and chromosomal damage, once told a Woburn
citizens' group why he would never want to testify in a toxic-waste case
such as the one brought by Jan Schlichtmann. "For every PhD," he
quipped, "there is an equal and opposite anti-PhD."
In fact, the adversarial system of justice is ill-suited to deciding the kinds of
highly complex issues in cases such as the Woburn toxic-waste suit. Each
legal team -- the families', W.R. Grace's, and Beatrice's -- hired highly
credentialed scientists who presented mind-bogglingly technical testimony
about groundwater flow, pressure gradients, and even, for one memorably
arcane afternoon, how tetrachloroethylene biodegrades into vinyl chloride.
After many months of this, six ordinary men and women were herded into
a little room and forced to decide whose theory was the most convincing.
Thus was the fatally confused verdict virtually guaranteed.
After sitting through all but five of the 78 days of trial, I have some
qualifications for observing what went wrong, and how similar trials could
be made better. What follows are a few modest proposals.
He, the jury: The judge, rather than lay jurors, should be the sole arbiter
of facts in a case as complex and technical as Woburn's. The only role for
a jury in such a case should be to determine the level of damages.
Granted, Judge Walter Jay Skinner was no more technically adept than
the postal clerks and retired nurses who made up the jury. But if he had
had to make the final decision himself, the families -- and, ultimately, the
public -- would have been spared the travesty of the verdict against Grace
having to be thrown out because the jurors didn't understand what they
were doing.
Just the facts: Once a judge has ruled that a lawsuit meets some minimal
standard for moving forward, the court itself, rather than the lawyers,
should investigate the facts. Admittedly, this would present some
problems, mainly over who would pay for an expensive, drawn-out
investigation. But the benefits of a neutral, objective investigation headed
by a court-appointed master would far outweigh any possible objections.
The parties to the suit, of course, would be able to challenge the court's
findings of fact, and the judge would be required to take those challenges
into account.
Government work: Early in the Woburn trial, Schlichtmann attempted to
introduce data compiled by the US Environmental Protection Agency. He
was unsuccessful, because the EPA had a court-approved exemption from
having to testify in private lawsuits. (Schlichtmann gets some revenge-byproxy in the movie: the screenwriters have rewritten history by claiming
that the EPA got involved only after Schlichtmann's suit lit a fire under the
agency.) As EPA officials put it during the trial, take away their exemption
and they would end up spending more time testifying than working. But
there should be some way of balancing the concerns of government
agencies with the need for unbiased, authoritative information. In fact,
government agencies clearly identified Beatrice's 15-acre property as a
source of contamination to Wells G and H, the very issue that
Schlichtmann's hydrogeological consultant, George Pinder, botched so
badly. Schlichtmann still would have had to show that the property's
previous owner, the Riley tannery, was responsible for the contamination.
But at least the entire case wouldn't have come undone because of one
witness from hell.
Law
Comparative
Law
f.
to have access to integrated systems for the management
of their inland waters and their air space
g.
to claim parts of reservations (except: those for public
welfare and service)
h.
to resolve land conflicts using customary laws (before
going to court)
Right to Self-governance and Empowerment
Chapter IV, Sections 13-20
Applicability: IPs not included in or outside Muslim Mindanao and
Cordilleras may use the form and content of their ways of life as may
be compatible with the fundamental rights defined in the Constitution.
Justice System may be used within their own communities but
subject to two conditions:
a. compatible with the national legal system.
b. compatible with internationally recognized human rights.
[Note: Clarify relationship with the Autonomous Regions which are
given legislative powers over ancestral domain and natural
resources, among others, pursuant to Article X, Section 20 of the
Constitution.]
Other rights:
a. Right to participate at all levels of decision-making and
development of indigenous political structures, including mandatory
representation in policy-making bodies and other local legislative
councils, and the right to determine their own priorities for
development.
b. Right to constitute tribal barangays (in re: Local Government
Code) provided they are living in contiguous areas where they are
the predominant population but inside municipalities, provinces, or
cities where they do not constitute the majority.
Social Justice and Human Rights
1. Equal Protection and non-discrimination: with due
recognition of their distinct characteristics and identity,
accord to the members of the ICCs/IPs the rights,
protections and privileges enjoyed by the rest of the
citizenry; same employment rights, opportunities, basic
services, educational and other rights and privileges
available to every member of the society. Accordingly, the
State shall likewise ensure that the employment of any
form of force of coersion against ICCs/IPs shall be dealt
with by law.
2. Rights during armed conflict: protection under
international law, non-recruitment against their will/children,
no force to abandon lands.
3. Freedom from discrimination and equal opportunity
and treatment
4. Unlawful acts re. employment:
non-discrimination
equal pay for equal work
accord them with same benefits and rights/ cannot be
discharge to evade providing them with such rights.
5. Equal rights and protection to women, children and
youth
6. Integrated system of education: relevant to the need of
the young people of the ICC/IPs.
Cultural Integrity
1. The state shall respect, recognize and protect the right of
the ICCs/IPs to preserve and protect their culture,
traditions and institutions. It shall consider these rights in
the formulation of national plans and policies.
2. Educational Systems
3. Cultural diversity
4. Community Intellectual rights
5.
6.
7.
8.
9.
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Exception:
i. those not inside domain may seek ADO help
ii. proof required: oral and documentary evidence
iii. notice and publication
Current Debate: Codification of Customary Law
[Note:
Article 11 of New Civil Code - Customs which are contrary
to law, public order or public policy shall not be countenanced.
Article 12 - A custom must be proved as a fact, according to the rules
of evidence.]
[Note:
Badua vs. Cordillera Bodong Administration, 194 SCRA
101]
In the case of Badua v. Cordillera, the main question was whether
tribal court of the Cordillera Bodong Administration can render a valid
and executory decision in a land dispute. The Court ruled that the
tribal court in this case which rendered the decision, supposed to
have been constituted under the law creating the Cordillera
Autonomous Region, never came into existence, as the CAR never
came into existence. The tribal court here was an ordinary tribal court
existing under the customs and traditions of an indigenous cultural
community. Such tribal courts are not a part of the Philippine judicial
system which consists of the Supreme Court and the lower courts
which have been established by law. They do not possess judicial
power. Like the pangkats or conciliation panels created by P.D. No.
1508 in the barangays, they are advisory and conciliatory bodies
whose principal objective is to bring together the parties to a dispute
and persuade them to make peace, settle, and compromise.
An amicable settlement, compromise, and arbitration award rendered
by a pangkat, if not seasonably repudiated, has the force and effect
of a final judgment of a court (Sec. 11, P.D. 1508), but it can be
enforced only through the local city or municipal court to which the
secretary of the Lupon transmits the compromise settlement or
arbitration award upon expiration of the period to annul or repudiate it
(Sec. 14, P.D. 1508). Similarly, the decisions of a tribal court based
on compromise or arbitration, as provided in P.D. 1508, may be
enforced or set aside, in and through the regular courts today.
Use of customary law in settlement of disputes among IPs and
determination of property rights.
Sec. 3(f). - a body of written and/or unwritten rules, usages,
customs and practices traditionally and continually recognized,
accepted and observed by respective ICCs/IPs
Sec. 7(b). Right to develop lands and natural resources - the right
to negotiate the terms and conditions for the exploration of natural
resources in the areas for the purpose of ensuring ecological,
environmental protection and the conservation measures, pursuant
to national and customary law
Sec. 7(h). Right to resolve conflict - Right to resolve land conflicts in
accordance with customary laws of the area where the land is
located, and only in default thereof shall the complaints be submitted
to amicable settlement and to the Courts of Justice whenever
necessary.
Sec. 8(a). Right to transfer land/property - Such right shall include
the right to transfer land or property rights to/among members of the
same ICCs/IPs, subject to customary laws and traditions of the
community concerned.
Sec. 15. Justice System Conflict Resolution Institutions, and Peace
Building Processes. - The ICCs/IPs shall have the right to use their
own commonly accepted justice systems, conflict resolution
institutions, peace building processes or mechanisms and other
customary laws and practices within their respective communities
and as may be compatible with the national legal system and with
internationally recognized human rights.
3
Starr Weigand 2012
Balane/Candelaria/Gulapa
Law
Section 3(a)
defines the extent and coverage of A.D. (3a)
defines A.L. (3b)
PUNO
Carino Native Title
KAPUNAN
3.
Section 6 in re: 3a & 3b
defines composition of A.D. and A.L.
(No comment on this particular provision.)
4. Section 7
Enumerates rights of IP over AD
PUNO
Constitutional
Rights of ownership in 7 (a) does not cover waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, forest, or timber, wildlife, flora and fauna and all other
natural resources in Section 2, Art. 12 of Constitution.
Consistent with Jura Regalia.
Section 7 (b) of IPRA merely refers to the right to manage natural
resources, not right to own (mere stewardship).
KAPUNAN
Does not bestow ownership over natural resources (similar to Puno).
Only projects IPs rights and welfare in relation to natural resources.
Concept of native title to natural resources, unlike native title to land,
has not been recognized in R.P.
5.
Section 8
enumerates rights of IPs over A.L.
(No comment on this particular provision.)
6. Section 57
priority rights of IPs in exploitation of natural resources within A.D.
PUNO
State with primary power to develop natural resources.
Cites 4 modes of control and supervision over resources:
Direct state action
Joint venture
Small-scale utilization [IPRA, Section 7 (b)]
Large-scale utilization [consistent with pars. 1 and 4,
Section 2, Art. 12 of Constitution]
No right to give the IPs right to manage and conserve natural
resources.
Consistent with Jura Regalia.
4 ways of large scale utilization:
Direct State action
Entry into agreement with IP (Priority Rights)
Entry into agreement with a non-IP member
Allow non-IP to participate in agreement with IP
7.
Section 58
gives IPs responsibility to conserve A.D. for critical watershed, forest,
etc
(No comment on this particular provision.)
2)
Procedural
1. Sections 51 to 53
Process of delineation and recognition of A.D.
NCIPs sole authority to delineate A.D./A.L.
KAPUNAN
No violation of due process
2.
Section 52 [i]
Termination of jurisdiction of DENR, DILG, DOJ and NDC upon NCIP
certification that a particular area is A.D.
KAPUNAN
Comparative
Law
A comparative analysis of ILO 169 and IPRA shows that these two
instruments are consistent with each other.
There are, however, some provisions of ILO 169 which are not found
in or are not sufficiently addressed by IPRA.
On the other hand, since IPRA specifically applies to the Philippine
context, it also has provisions not embodied in ILO 169.
Issues addressed by ILO 169:
- government responsibility (Article 2, 7 and 33);
- human rights and enforcement mechanism (Article 3, 11 and 12);
- special measures (Article 4 and 20.1);
- consultation and participation (Article 6, 7.1 and 16.2);
- development (Article 7 and 2.2);
- cultural integrity and customary laws (Article 8, 9, 10 and 12);
- the rights of ownership and possession over the lands they
traditionally occupy, or have had access to (Article 14);
- the rights to natural resources including the right to participate in
the use, management and conservation of such resources (Article
15 and 7.4);
- displacement (Article 16);
- land alienation (Article 17);
- unauthorized intrusions (Article 17.3, and 18);
- agrarian programs (Article 19);
- recruitment and conditions of employment (Article 20);
- vocational training, handicrafts and rural industries (Articles 21 to
23);
- social security and health (Articles 24 and 25);
- education (Articles 26 to 31);
- cross-border co-operation (Article 32); and
- administration and implementation mechanism (Article 33)
Guiding Principles:
IPRA adopts the general principles of ILO 169, but with more specific
and stronger emphasis.
Under IPRA, the Philippines recognizes the values, practices and
institutions of the IPs.
It also has the duty to take measures, with the participation of the IPs
concerned, to protect their rights and guarantee respect for their
cultural integrity.
Who are Tribal and Indigenous People?
IPRA
Adopts the general description of
tribal and indigenous peoples
under ILO 169, with slight
modifications,
however,
as
applied to IPs in the Philippine
context.
ILO 169
Does not define but gives a
description of the tribal and
indigenous peoples which it
covers.
Self-ascription is equivalent to
self-identification under ILO 169.
Comparative
Law
- 10 Government Responsibility
The provisions on state responsibility to protect and promote the
rights of tribal and indigenous peoples under ILO 169 are effectively
incorporated in IPRA.
IPRA
ILO 169
Stat
duty
to
ensure
its
implementation,
with
participation of the tribal and
Indigenous
people,
through
coordinated
and
systematic
action.
May create specific agency/ies
focused solely on tribal and
indigenous peoples and the
issues concerning them, which
should be provided with the
necessary
resources,
will
coordinate and oversee all
efforts affecting tribal and
indigenous peoples.
Human Rights
IPRA
ILO 169
Affirm the human rights and fundamental freedoms of tribal and
indigenous peoples on the basis of equality and non-discrimination.
Prohibition of the use of force
and coercion against tribal and
indigenous peoples and the
exaction of compulsory personal
services are given special
emphasis
Various
Supreme
Court
decisions invoking human rights
instruments, the trend has been
to use the doctrines of
incorporation and transformation
interchangeably to apply human
rights principles to specific
cases.
Special Measures
IPRA
Adopts the provisions on special
measures under ILO 169 for the
effective protection of the
persons, institutions, property,
labour, cultures and environment
of the tribal and indigenous
peoples concerned, with special
emphasis on recruitment and
conditions of employment.
Also
provides
for
special
measures to control, develop
and
protect
indigenous
Starr Weigand 2012
Balane/Candelaria/Gulapa
ILO 169
knowledge
practices.
systems
and
Law
Concept of Land
The Mining Act, however, does take into account the IPs. A mining
agreement is subject to the rights of the IPs to their lands.
Both ILO 169 and IPRA recognize that land is an integral and
essential aspect of the lives and cultural integrity of tribal and
indigenous peoples.
In addition, the Mining Act prohibits the opening of the ancestral land
to mining operations without prior consent of the IPs. In case consent
is obtained, the law provides that royalty payments must be paid.
Displacement
Under both ILO 169 and IPRA, the right to stay in indigenous
territories is not absolute.
IPRA
Has
concrete
legal
categorization of the land rights
of indigenous peoples.
ILO 169
Concept of land encompasses
the total environment of the
areas which either the whole
community
or
individual
members occupy and use.
ILO 169
Mandates governments to make
sure that there are procedures
and mechanisms in place to
resolve any land disputes.
ILO 169
The State retains ownership of
mineral or sub-surface resources
or rights.
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ILO 169
With regard
to
vocational
training, ILO 169 is more specific
and elaborate in the type of
measures and programs in
comparison with IPRA.
ILO 169
Government mandate to ensure
that IPs has equal access to
adequate health services and
social security benefits without
discrimination.
Health services shall also be community-based with the active
participation of the IPs concerned.
IPs should also be given opportunity to gain training in the health
profession.
Education and Means of Communication
The provisions of ILO 169 on education is substantially reiterated in
IPRA with special emphasis to women, children and the youth under
the latter.
IPs must be given equal opportunity to acquire education in the
existing formal system.
ILO 169
No equivalent provisions.
Law
Furthermore, ratification of ILO 169 will pave the way for greater
dialogue and cooperation between the government and ILO.
Al-Risala: Details the four roots of law (Quran, Sunnah, ijma, and
qiyas) while specifying that the primary Islamic texts (the Quran and
the Sunnah) be understood according to objective rules of
interpretation derived from careful study of the Arabic language.
When the government fail to fulfill its obligations and meet the ILO
standards, complaints can be made to the ILO Governing Body.
Comparative
Law
- 14 3. MUBAH (neutral),
4. MAKRUH (discouraged)
5. HARAM (forbidden).
The recommended, neutral and discouraged categories are drawn
largely from accounts of the life of the Prophet Muhammad.
PRIMARY SOURCES
QURAN- Holy Book
Main source of the Shari'ah. The scholars of the Qur'an have
enumerated number of verses of legal injunctions, but the number is
approximately considered to be 500.
Covers: marriage, polygamy, dower, maintenance, rights and
obligation, divorce, and various modes of dissolution of marriage, the
period of retreat after divorce, fosterage, contracts, loans, weights
and measure, fosterage, contracts, loans, removal of injury, oaths
and vows, punishments for crime, wills and inheritance
SUNNAH - Practices of the Prophet Muhammad
- recommended as an example from the life and sayings of
Muhammad. These categories form the basis for proper
behavior in matters such as courtesy and manners,
interpersonal relations, generosity, personal habits and
hygiene.
SECONDARY SOURCES
IJMA - Consensus of the Religious Scholars (Ulamah)
QIYAS - Analogical deductions from the Quran and Sunnah
In topics where the Quran and the Sunnah are silent, Muslim jurists
arrive at conclusions by other means such as Ijma and Qiyas.
FIQH
4. I'TIQADAT beliefs
5. 'UQUBAT punishments
SUBSIDIARY SOURCES
ISTIHSAN- Juristic Preference
DHARA'I - The Means
MASLAHAH The public interest
QAWL AL-SAHABI The Opinion of a Companion
SHARI'AI' MAN QABLANA the revealed laws preceding the
Shari'ah
ISTISHAB Presumption of Continuity
URF - Local Customs
*MANTIQ reasoning Logic
* AQL - Intellect
2 Major Sects of Muslims: Sunni or Shia
Within these sects, there are different schools of religious study and
scholarship. The schools within each sect have common
characteristics, although each differs in its details.
Sunni Muslims - In addition to the Quran and Sunnah, Sunni
Muslims also add the (consensus) IJMA of Prophet Muhammad's
companions known as SAHABA and Islamic jurists ULAMA on
certain issues.
In situations where no concrete rule exists in the sources, law
scholars use QIYAS various forms of reasoning, including analogy,
to derive law from the essence of divine principles and preceding
rulings. Other secondary sources are also used.
Major Schools of Thought (Madhhab)
HANAFI Turkey, Central Asia, India, Iran, Afganistan, Jordan,
China, Egypt
SHAFI'I Yemen, Somalia, Ethiopia, Southeast Asia, Maldives,
Jordan, India, Egypt, S. Iran
Comparative
Law
Other systems, such as those of Iran, Iraq, and Pakistan, use a civil
Shari'a code, and do have defense attorneys, prosecutors, and
appeals courts.
They also have a supreme court, and a definite civil law style penal
code: still heavily based on the informality and simplicity of a "pure"
sharia court, and trials often still take a matter of hours or sometimes
days.
CATEGORIES of CRIMES
QISAS - involves personal injury
HUDUD - whose penalties were laid down by the Quran, and are
considered to be "claims against God
TAZIR - all other offenses not mentioned ; claim of the state" and it
receives a discretionary sentence
Economic Development and Corporate Law: no native tradition of
coporate law.
- Recognizes only natural persons
- No developed concept of legal persons, or corporations, i.e., a legal
entity that limits and liabilities of its managers, shareholders, and
employees; exists beyond the lifetimes of its founders; and that can
own assets, sign contracts, and appear in court through
representatives.
I.
Shari'ah in the Secular Muslim States
MALI, KAZAKHSTAN and TURKEY: declared secular. Religious
interference in state affairs, law and politics is prohibited. In these
Muslim countries, as well as the secular West, the role of Sharia is
limited to personal and family matters.
Comparative
Law