Sunday, December 6, 2009
¡ Laws enacted by the Philippine legislature [national or local], constitutive assemblies and other bodies with law-making power
¡ A formal written enactment of a legislative authority that governs a city, state or country
¡ It typically commands or prohibits certain conduct, or declares policy
¡ Before the passage of most statutes proper, the proposed statute is called a “bill”; after its passage, it is often referred to as an “act”
Types of Statute:
A. AS TO THE PERSONS TO WHOM THEY APPLY:
1) Private Statute
§ One which relates to a single person or to a particular class of persons, and does not apply to the whole community
§ An Act that is enacted by the Legislature on the application of an individual, a municipality or a corporation and which relates only to the interests of the applicant.
§ Ex. A law of Congress granting a pension to a particular person
2) Public Statute
¡ One which is applicable to the public in general
¡ a law or statute of a general character that applies to the people of a whole state or nation
¡ Ex. A law providing for the bestowal of pensions upon all who conform to certain conditions in public
B. AS TO THE TERRITORY TO WHICH THEY APPLY
1) National or General Statute
§ One which applies to the entire territory over which the legislature has authority
2) Local Statute
§ One which applies only to a limited portion of the territory over which the legislature has jurisdiction
[Local statute can also refer to municipal legislation]
C. AS TO THEIR OPERATION
1) Prospective Statute
§ One which applies only to acts which arise after its enactment
2) Retrospective Statute
¡ One which applies to acts which took place or rights which existed before its enactment
¡ Are seldom passed and some jurisdictions are prohibited by constitutional provisions
¡ Ex. Ex-post facto Law – such laws which make acts, innocent when done, crimes or increase the penalty attached to crimes already committed
Other Classes of Statutes:
A. Special Statutes
¡ Enacted for the purpose of providing sanctions for acts not provided for in the general statutes; Ex. R.A. 6538 or The Anti-Carnapping Act of 1972
B. Mandatory vs. Directory Statutes
¡ one which renders the acts to which it refers void or subject to penalty unless its provisions are complied with
¡ Ex. Republic Act No. 7394- The Consumer Act of the Philippines
¡ one which lays down certain rules relating to particular acts which acts may be valid, or would not attract the imposition of penalties, although such rules are not complied with
C. Personal vs. Real Statutes
¡ those which have principally for their object the person, and treat of property only incidentally; such are those which regard birth, legitimacy, freedom, the fight of instituting suits, majority as to age, incapacity to contract, to make a will, to plead in person, and the like.
¡ A personal statute is universal in its operation, and in force everywhere.
¡ Ex. Republic Act No. 6809 - An Act Lowering the Age of Majority From Twenty-One to Eighteen Years, Amending for the Purpose Executive Order Numbered Two Hundred Nine, And for Other Purposes
¡ Those which have principally for their object, property, and which do not speak of persons, except in relation to property; such are those which concern the disposition, which one may make of his property either alive or by testament.
¡ A real statute, unlike a personal one, is confined in its operation to the country of its origin.
D. Temporary vs. Perpetual Statutes
¡ one which is limited in its duration at the time of its enactment
¡ It continues in force until the time of its limitation has expired, unless sooner repealed.
¡ one for the continuance of which there is no limited time, although it be not expressly declared to be so.
¡ If, however, a statute which did not itself contain any limitation, is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter.
¡ Elementary Law, William Lawrence Clark
¡ The American Heritage Dictionary of the English Languce, Fourth Edition 2004
¡ Legal Research and Bibiliography – 2007 Edition, Peter P. Ng Philipp U. Po, Pepito P. Go
¡ Black, Henry Campbell (1990). Black's Law Dictionary, Sixth Edition
Wednesday, December 2, 2009
Legal bibliography principles classify authorities as primary and secondary. Again, using Moreno's tract:
1. An authority is considered primary when legislation (or statutes) or court decisions are involved.
Primary authorities are either mandatory or persuasive.
a. It is mandatory when "legislation is effective in the place where it has been enacted or promulgated or when a decision is rendered with finality by a superior court in the case or in another case with a similar set of facts, or by the same court in another case."
b. Any other type of legislation or court decision is considered persuasive.
2. An authority is considered secondary, "when primary authority is commented on, criticized, explained or restated."
Here are the basic principles of Philippine legal bibliography:
I. Not all legal authorities are created equal.
II. Some authorities are considered primary, while others, only secondary.
III. The following is a practitioner's take on the Hierarchy of Authorities --
(i) The Constitution
(ii) Statutes proper, treaties
(iii) Municipal legislation
(iv) Administrative rules issued pursuant to law.
2. Decisions of the Supreme Court
3. Other types of administrative rules
4. Decisions of other courts and quasi-judicial bodies
5. Opinions of government agencies tasked with administering particular laws
6. Foreign laws and cases
B. Secondary Authorities
1. Local commentaries
2. Local textbooks
3. Local legal dictionaries
4. Local legal articles
5. Foreign secondary authorities [may rank higher in certain cases]
IV. This hierarchical order is a general concept. You need to test each possible authority for relevance and applicableness. If an authority is not relevant or applicable to your problem or case, it must fall away.
V. When considering a secondary authority, pay attention to the subject matter of the material, the year it was published, and the author. Certain commentaries, because of usage, time and the reputation of their authors are considered "repositories of law" and may carry greater weight than other commentaries.
VI. The Hierarchy of Authorities is your best friend.