Legphilo Report - Case Analysis (functional-policy Science)

I.

Legal Philosophy Case Studies • • • •

Functionalist Perspective Modern Legal Realist Perspective Critical Legal Analysis Policy Science

Esplana, Maria Carla Octaviano, Clarence Yu, Benjamin 3/1/2009

Functionalist Perspective

II.

a. Teresita Arobang v. Mayor Vicente Bermejo b. Hon. Jejomar Binay and the Municipality of Makati v. Hon. Eufemio Domingo and the Commission of Audit III. a.

Modern Legal Realist Perspective Alejandro Estrada v. Soledad Escritor

b. Ferdinand Marcos v. Hon. Raul Manglapus IV.

Critical Legal Analysis

a. International School Alliance of Educators (ISAE) v. Hon. Leonardo A. Quisumbing V. a.

Policy Science Perspective In the matter of the Petition for Habeas Corpus: Laurente C. Ilagan vs. Hon Juan Ponce Enrile

b.

Florentino Joya and Juan Tahimic and Domingo Joya v. Pedro Pareja

VI.

Scandinavian legal realism

a. Primitivo Ansay, et al v. The Board of Directors of the National Development Company et al.

Cases for functional perspective Arrobang v. Martinez G.R. No. 153974 August 7, 2006 Austria- Martinez, J. Before this Court is a petition for review questioning the Decision of the Court of Appeals (CA) dated March 20, 2002 in CA-G.R. SP No. 47052, as well the Resolution

dated June 11, 2002 denying petitioners Motion for

Reconsideration thereof. Facts: Petitioners are owners of parcels of land with a total area of about 20,424 square meters, covered by Free Patent Nos. 7265, 7266, 7267, 7268, 7269, and 7270. On November 8, 1995, the Sangguniang Bayan of the Municipality of Panay issued Resolution No. 95-29 authorizing the municipal government through the mayor to initiate expropriation proceedings. A petition for expropriation was thereafter filed on April 14, 1997 by the Municipality of Panay (respondent) before the Regional Trial Court (RTC), Branch 18 of Roxas City, docketed as Civil Case No. V-6958. Petitioners filed a Motion to Dismiss alleging that the taking is not for public use but only for the benefit of certain individuals; that it is politically motivated because petitioners voted against the incumbent mayor and vicemayor; and that some of the supposed beneficiaries of the land sought to be expropriated have not actually signed a petition asking for the property but their signatures were forged or they were misled into signing the same. On July 31, 1997, the trial court denied petitioners Motion to Dismiss and declared that the expropriation in this case is for "public use" and the respondent has the lawful right to take the property upon payment of just compensation. Petitioners filed an Answer on August 12, 1997 reasserting the issues they raised in their Motion to Dismiss.

On October 1, 1997, the trial court issued an Order appointing three persons as Commissioners to ascertain the amount of just compensation for the property. Petitioners filed a "Motion to Hold in Abeyance the Hearing of the Court Appointed Commissioners to Determine Just Compensation and for Clarification of the Courts Order dated October 1, 1997" which was denied by the trial court on November 3, 1997. Petitioners Motion for Reconsideration was also denied on December 9, 1997. Petitioners then filed on March 2, 1998 a Petition for Certiorari before the CA claiming that they were denied due process when the trial court declared that the taking was for public purpose without receiving evidence on petitioners claim that the Mayor of Panay was motivated by politics in expropriating their property and in denying their Motion to Hold in Abeyance the Hearing of the Court Appointed Commissioners; and that the trial court also committed grave abuse of discretion when it disregarded the affidavits of persons denying that they signed a petition addressed to the municipal government of Panay. On January 17, 2001, petitioners filed a Motion to Admit Attached Memorandum and the Memorandum itself where they argued that based on the Petition for Expropriation filed by respondent, such expropriation was based only on a resolution and not on an ordinance contrary to Sec. 19 of Republic Act (R.A.) No. 7160; there was also no valid and definite offer to buy the property as the price offered by respondent to the petitioners was very low. On March 20, 2002, the CA rendered its Decision dismissing the Petition for Certiorari. Thus, the present petition claiming that: Issue: Petitioners were utterly denied procefural due process of law by the court, when it PETITIONERS WERE UTTERLY DENIED PROCEDURAL DUE PROCESS OF LAW BY THE COURT A QUO, WHEN IT SIMPLY DECLARED IN ITS ORDER DATED 31 JULY 1997 THAT THE TAKING BY RESPONDENT OF PETITIONERS PROPERTIES IS PURPORTEDLY FOR PUBLIC PURPOSE WITHOUT RECEIVING

EVIDENCE ON THEIR ASSERTED CLAIM THAT RESPONDENTS MUNICIPAL MAYOR WAS POLITICALLY MOTIVATED IN SEEKING THE EXPROPRIATION OF THEIR PROPERTIES AND NOT FOR PUBLIC PURPOSE. Ruling: Petitioners argue that: contrary to Sec. 19 of R.A. No. 7160 of the Local Government Code, which provides that a local government may exercise the power of eminent domain only by "ordinance," respondents expropriation in this case is based merely on a "resolution"; while objection on this ground was neither raised by petitioners in their Motion to Dismiss nor in their Answer, such objection may still be considered by this Court since the fact upon which it is based is apparent from the petition for expropriation itself; a defense may be favorably considered even if not raised in an appropriate pleading so long as the facts upon which it is based are undisputed; courts have also adopted a more censorious attitude in resolving questions involving the proper exercise of local bodies of the delegated power of expropriation, as compared to instances when it is directly exercised by the national legislature; respondent failed to give, prior to the petition for expropriation, a previous valid and definite offer to petitioners as the amount offered in this case was only P10.00 per square meter, when the properties are residential in nature and command a much higher price; the CA failed to discuss and rule upon the arguments raised by petitioners in their Memorandum; attached to the Motion to Dismiss were affidavits and death certificates showing that there were people whose names were in the supposed petition asking respondent for land, but who did not actually sign the same, thus showing that the present expropriation was not for a public purpose but was merely politically motivated; considering the conflicting claims regarding the purpose for which the properties are being expropriated and inasmuch as said issue may not be rightfully ruled upon merely on the basis of petitioners Motion to Dismiss and Answer as well as respondents Petition for Expropriation, what should have been done was for the RTC to

conduct hearing where each party is given ample opportunity to prove its claim. Respondent for its part contends that its power to acquire private property for public use upon payment of just compensation was correctly upheld by the trial court; that the CA was correct in finding that the petitioners were not denied due process, even though no hearing was conducted in the trial court, as petitioners were still able to adduce their objections and defenses therein; and that petitioners arguments have been passed upon by both the trial court and the CA and were all denied for lack of substantial merit. Respondent filed a Memorandum quoting at length the decision of the CA to support its position. Petitioners meanwhile opted to have the case resolved based on the pleadings already filed. Petition is impressed with merit. Eminent domain, which is the power of a sovereign state to appropriate private property to particular uses to promote public welfare, is essentially lodged in the legislature. While such power may be validly delegated to local government units (LGUs), other public entities and public utilities the exercise of such power by the delegated entities is not absolute. In fact, the scope of delegated legislative power is narrower than that of the delegating authority and such entities may exercise the power to expropriate private property only when authorized by Congress and subject to its control and restraints imposed through the law conferring the power or in other legislations. Indeed, LGUs by themselves have no inherent power of eminent domain. Thus, strictly speaking, the power of eminent domain delegated to an LGU is in reality not eminent but "inferior" since it must conform to the limits imposed by the delegation and thus partakes only of a share in eminent domain. The national legislature is still the principal of the LGUs and the latter cannot go against the principals will or modify the same. The exercise of the power of eminent domain necessarily involves a derogation of a fundamental right. It greatly affects a land owners right to private property which is a constitutionally protected right necessary for the

preservation and enhancement of personal dignity and is intimately connected with the rights to life and liberty. Thus, whether such power is exercised directly by the State or by its authorized agents, the exercise of such power must undergo painstaking scrutiny. Indeed, despite the existence of legislative grant in favor of local governments, it is still the duty of the courts to determine whether the power of eminent domain is being exercised in accordance with the delegating law. The Court in no uncertain terms have pronounced that a local government unit cannot authorize an expropriation of private property through a mere resolution of its lawmaking body. R.A. No. 7160 otherwise known as the Local Government Code expressly requires an ordinance for the purpose and a resolution that merely expresses the sentiment of the municipal council will not suffice. A resolution will not suffice for an LGU to be able to expropriate private property; and the reason for this is settled: x x x A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently -- a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members. As respondents expropriation in this case was based merely on a resolution, such expropriation is clearly defective. While the Court is aware of the constitutional policy promoting local autonomy, the court cannot grant judicial sanction to an LGUs exercise of its delegated power of eminent domain in contravention of the very law giving it such power. WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G.R. SP No. 47052 is REVERSED and SET ASIDE. The Complaint in Civil Action No. V-6958 is DISMISSED without prejudice.

Hon. Jejomar Binay and the Municipality of Makati v. Hon. Eufemio Domingo and the Commission of Audit G.R. No. 92389 September 11, 1991 Paras, J. The only pivotal issue before us is whether or not Resolution No. 60, reenacted under Resolution No. 243, of the Municipality of Makati is a valid exercise of police power under the general welfare clause. Facts: On September 27, 1988, petitioner Municipality, through its Council, approved Resolution No. 60 which reads: A RESOLUTION TO CONFIRM AND/OR RATIFY THE ONGOING BURIAL ASSISTANCE PROGRAM INITIATED BY THE OFFICE OF THE MAYOR, OF EXTENDING FINANCIAL ASSISTANCE OF FIVE HUNDRED PESOS (P500.00) TO

A BEREAVED FAMILY, FUNDS TO BE TAKEN OUT OF UNAPPROPRIATED AVAILABLE FUNDS EXISTING IN THE MUNICIPAL TREASURY. Qualified beneficiaries, under the Burial Assistance Program, are bereaved families of Makati whose gross family income does not exceed two thousand pesos (P2,000.00) a month. The beneficiaries, upon fulfillment of other requirements, would receive the amount of five hundred pesos (P500.00) cash relief from the Municipality of Makati. Metro Manila Commission approved Resolution No. 60. Thereafter, the municipal secretary certified a disbursement fired of four hundred thousand pesos (P400,000.00) for the implementation of the Burial Assistance Program. Resolution No. 60 was referred to respondent Commission on Audit (COA) for its expected allowance in audit. Based on its preliminary findings, respondent COA disapproved Resolution No. 60 and disallowed in audit the disbursement of finds for the implementation thereof. Two letters for reconsideration filed by petitioners were denied by respondent in its Decision No. 1159. However, the Burial Assistance Program has been stayed by COA Decision No. 1159. Petitioner, through its Mayor, was constrained to file this special civil action of certiorari praying that COA Decision No. 1159 be set aside as null and void. Issue: Whether or not Subject Resolution No. 60, s. 1988, of the Municipal Council of Makati and the intended disbursements fall within the twin principles of police power and parens patriae. The police power is a governmental function, an inherent attribute of sovereignty, which was born with civilized government. It is founded largely on the maxims, "Sic utere tuo et ahenum non laedas and "Salus populi est suprema lex Its fundamental purpose is securing the general welfare, comfort and convenience of the people. Police power is inherent in the state but not in municipal corporations (Balacuit v. CFI of Agusan del Norte, 163 SCRA 182). Before a municipal

corporation may exercise such power, there must be a valid delegation of such power by the legislature which is the repository of the inherent powers of the State. A valid delegation of police power may arise from express delegation, or be inferred from the mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations may exercise police powers within the fair intent and purpose of their creation which are reasonably proper to give effect to the powers expressly granted, and statutes conferring powers on public corporations have been construed as empowering them to do the things essential to the enjoyment of life and desirable for the safety of the people. The so-called inferred police powers of such corporations are as much delegated powers as are those conferred in express terms, the inference of their delegation growing out of the fact of the creation of the municipal corporation and the additional fact that the corporation can only fully accomplish the objects of its creation by exercising such powers. (Crawfordsville vs. Braden, 28 N.E. 849). Furthermore, municipal

corporations,

as

governmental

agencies,

must

have

such

measures of the power as are necessary to enable them to perform their governmental functions. The power is a continuing one, founded on public necessity. Thus, not only does the State effectuate its purposes through the exercise of the police power but the municipality does also. (U.S. v. Salaveria, 39 Phil. 102). Municipal governments exercise this power under the general welfare clause: pursuant thereto they are clothed with authority to "enact such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein." And under Section 7 of BP 337, "every local government unit shall exercise the powers expressly granted, those necessarily implied therefore, as well as powers necessary

and proper for governance such as to promote health and safety, enhance prosperity, improve morals, and maintain peace and order in the local government unit, and preserve the comfort and convenience of the inhabitants therein." Police power is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. It is the most essential, insistent, and illimitable of powers. In a sense it is the greatest and most powerful attribute of the government. It is elastic and must be responsive to various social conditions. (Sangalang, et al. vs. IAC, 176 SCRA 719). On it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests. (16 C.J.S.) However, it is not confined within narrow circumstances of precedents resting on past conditions; it must follow the legal progress of a democratic way of life. (Sangalang, et al. vs. IAC, supra). In the case at bar, COA is of the position that there is "no perceptible connection or relation between the objective sought to be attained under Resolution No. 60, s. 1988, supra, and the alleged public safety, general welfare. etc. of the inhabitants of Makati." Apparently, COA tries to re-define the scope of police power by circumscribing its exercise to "public safety, general welfare, etc. of the inhabitants of Makati." In the case of Sangalang vs. IAC, supra, We ruled that police power is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all comprehensiveness. Its scope, over-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. The police power of a municipal corporation is broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real

needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. It covers a wide scope of subjects, and, while it is especially occupied with whatever affects the peace, security, health, morals, and general welfare of the community, it is not limited thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and to everything worthwhile for the preservation of comfort of the inhabitants of the corporation (62 C.J.S. Sec. 128). Thus, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the limits of police power. COA's additional objection is based on its contention that "Resolution No. 60 is still subject to the limitation that the expenditure covered thereby should be for a public purpose, ... should be for the benefit of the whole, if not the majority, of the inhabitants of the Municipality and not for the benefit of only a few individuals as in the present case." COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. As correctly pointed out by the Office of the Solicitor General, "The drift is towards social welfare legislation geared towards state policies to provide adequate social services, the promotion of the general welfare social justice (Section 10, Ibid) as well as human dignity and respect for human rights The care for the poor is generally recognized as a public duty. The support for the poor has long been an accepted exercise of police power in the promotion of the common good. There is no violation of the equal protection clause in classifying paupers as subject of legislation. Paupers may be reasonably classified. Different groups may receive varying treatment. Precious to the hearts of our legislators, down to our local councilors, is the welfare of the paupers. Thus,

statutes have been passed giving rights and benefits to the disabled, emancipating the tenant-farmer from the bondage of the soil, housing the urban poor, etc. Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a paragon of the continuing program of our government towards social justice. The Burial Assistance Program is a relief of pauperism, though not complete. The loss of a member of a family is a painful experience, and it is more painful for the poor to be financially burdened by such death. Resolution No. 60 vivifies the very words of the late President Ramon Magsaysay 'those who have less in life, should have more in law." This decision, however must not be taken as a precedent, or as an official go-signal for municipal governments to embark on a philanthropic orgy of inordinate dole-outs for motives political or otherwise. PREMISES CONSIDERED, and with the afore-mentioned caveat, this petition is hereby GRANTED and the Commission on Audit's Decision No. 1159 is hereby SET ASIDE.

Functional Perspectives case analysis The social interest therefore in the preservation of human personality and dignity emphasizes personal security from abusive application of power by private individual or groups of individual and from unreasonable application of authority by the government, namely, police power, power of taxation, power of eminent domain. The essence of this social interest is two-fold. The first is the right of the people without discrimination among individuals, to have a voice and to participate in the formation of government policies and functions. Of this right there is no doubt since the people are called upon to support these policies morally, physically and financially. The second is the reasonable expectation of the people that their optimum social requirements will be met. The two cases above were historical expression of the social interest context in our country that properly displays the functional perspective view of law. The court in ruling these cases expressly applies the maxim of salus populi est suprema lex. It is thus based on the title and concern of the entire social group against those forms and acts and practices which adversely affect the stability of existence and happiness of the people. There is an abundance of historical illustrations where national decay has been the result with the wanting of the esteem fro personality and dignity. Paradoxically, the preservation of this social interest is a continuous fight and endeavor.

Case for Modern Legal Realist Perspective Alejandro Estrada v. Escritor A.M. No. P-02-1651 August 4, 2003 Facts: Soledad Escritor works as a Clerk of Court in the Regional Trial Court of Las Pinas. In July 27, 2000, complainant Estrada, requested for an investigation in relation to rumors that respondent was engaged in a relationship with a man who is not her husband. Respondent testified that when she entered the judiciary in 1999, she was already a widow, her husband having died in 1998. She admitted that she started living with Luciano Quilapio, Jr. without the benefit of marriage more than twenty years ago when her husband was still alive but living with another woman. She also admitted that she and Quilapio have a son. But as a member of the religious sect known as the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society,

respondent

asserted

that

their

conjugal

arrangement

is

in

conformity with their religious beliefs and has the approval of her congregation. In fact, after ten years of living together, she executed on July 28, 1991, a “Declaration of Pledging Faithfulness.”

For Jehovah’s Witnesses, the Declaration allows members of the congregation who have been abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within the congregation all over the world except in countries where divorce is allowed. As laid out by the tenets of their faith, the Jehovah’s congregation requires that at the time the declarations are executed, the couple cannot secure the civil authorities’ approval of the marital relationship because of legal impediments. Only those couples which have been baptized and in good standing may execute the Declaration. The declaration requires the approval of the elders of the congregation. As a matter of practice, the marital status of the declarants and their respective spouses’ commission of adultery are investigated before the declarations are executed. Escritor and Quilapio’s declarations were executed in the usual and approved form prescribed by

the Jehovah’s

Witnesses,

approved by

elders

of the

congregation where the declarations were executed, and recorded in the Watch Tower Central Office. Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are lifted, the validity of the declarations ceases, and the couple should legalize their union. In Escritor’s case, although she was widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not capacitated to remarry. Thus, their declarations remained valid. In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and

Quilapio

and

they

remain

members

in

good

standing

in

the

congregation. By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her conjugal arrangement does not constitute disgraceful

and

immoral

administratively liable. Issue:

conduct

for

which

she

should

be

held

Whether or not respondent should be reprimanded for her alleged extramarital affairs. Held: No. Our Constitution adheres to the benevolent neutrality approach that gives room for accommodation of religious exercises as required by the Free Exercise

Clause.

Thus,

in

arguing

that

respondent

should

be

held

administratively liable as the arrangement she had was “illegal per se because, by universally recognized standards, it is inherently or by its very nature bad, improper, immoral and contrary to good conscience,” the Solicitor General failed to appreciate that benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests Respondent Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite. In this case, the government’s conduct may appear innocent and nondiscriminatory but in effect, it is oppressive to the minority. In the interpretation of a document, such as the Bill of Rights, designed to protect the minority from the majority, the question of which perspective is appropriate would seem easy to answer.

Moreover, the text, history,

structure and values implicated in the interpretation of the clauses, all point toward this perspective. Thus, substantive equality—a reading of the religion clauses which leaves both politically dominant and the politically weak

religious groups equal in their inability to use the government (law) to assist their own religion or burden others, makes the most sense in the interpretation of the Bill of Rights, a document designed to protect minorities and individuals from mobocracy in a democracy.

Case Analysis for Modern Legal Realist Perspective Estrada v. Escritor The Modern Legal Realist Perspective’s American Legal Realism states that “the law is an instrument of social control entrusted to the Courts with regard to experience and prevailing moral and political theories and policies”. Law is what the Court says it is. The Courts are affected by certain Metalegal Factors. These are the elements which stimulate a Judge either

against or for a specific matter or controversy. The Metalegal Factor of the Stimuli Set Up by the Judges’ Predilections and Preconceptions may be applied in the case at bar. The leading case of Estrada v. Escritor was penned by Chief Justice Reynato Puno, a known religious and virtuous man. The Metalegal stimulus that is present in the case is the Judge’s or Justice’ Legal Sympathies. Legal Sympathies arise from a judge’s community of experience, education, interests, and even temperament.

Chief Justice

Puno’s disposition towards fairness and equality are well known in the Philippines. It is an area in which he is forthright, clearly reflecting his legal sympathies towards the protection of equal rights as well as religious rights. In the Estrada case, Chief Justice Puno of the Supreme Court ruled in favor of the respondent. The Chief Justice, who penned the opinion, characterized the acts of the respondent to be well in the realm of the free exercise of her religious beliefs. Furthermore, it was held that there was no compelling state interest to warrant a punishment against the respondent. The mind of a Judge or Justice is a store of legal sympathies and legal antipathies which is acquired in the process of maturing and education. The metalegal stimuli come into operation only because certain issues strike familiar notes which may set a judicial tone.

Marcos vs. Manglapus, GR no. 88211 September 15, 1989 August 2, 2008 Facts:

The petitioners are Ferdinand E. Marcos and his immediate family, while Raul Manglapus, Secretary of Foreign Affairs, the respondent. The call is about the request of Marcos family to the court to order the respondents to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the president’s decision to bar their return to the Philippines. Issue: Whether or not, in the exercise of the powers granted by the constitution, the President may prohibit the Marcoses from returning to the Philippines. Ruling: Petition was dismissed. President did not arbitrarily or with grave of discretion in determining that return of former president Marcos and his family at the present time and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines.

Case Analysis for Modern Legal Realist: Marcos v. Manglapus

The Metalegal Factor of the Stimuli Set Up by Historical or Political Events and Precedents may be applied in the case at bar. As was held in the case: “The duties of the President under the Constitution, in compliance with his (or her) oath of office, is to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this decision.” The petitioners in the case at bar raise their inherent right as citizens of the Philippines to return to their country of birth but also the protection of the Constitution and all of the rights guaranteed to Filipinos under the Constitution. However, if the Marcoses were allowed to return, it may provide a catalytic effect which, instead of erasing fears of destabilization, might even cause the opposite. The historic-political setting of the case shows that it was barely four years after the dramatic EDSA Revolution and that strong political feelings were still at its height. The Supreme Court ruled against the petitioners not because of existing prejudices against the family, but because the Motion was filed during a time when emotions were still high and a strong possibility of government destabilization was apparent.

Case for Critical Legal Studies International School Alliance of Educators v. Hon. Leonardo A. Quisumbing G.R. No. 128845. June 1, 2000 Kapunan, J. Facts: Private respondent, International School Inc. is a domestic educational institution established primarily for dependents of foreign diplomatic personnel and other temporary residents. The school hires both foreign and local teachers as members of its faculty, classifying them as foreign-hires and local-hires. The local-hire faculty members of said International School, mostly Filipinos, complained against the better treatment of their colleagues who have been hired abroad. These foreign-hires enjoy certain benefits not accorded the local-hires which include housing, transportation, shipping costs, taxes, home leave travel allowance and a salary rate 25% higher than that of the local-hires. Petitioner claims that the point-of-hire classification employed by the school is discriminatory to Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination. Issue: Whether or not the classification employed by the respondent school constitutes racial discrimination. Held: YES. The Constitution in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil

Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith." The

Constitution

also

directs

the

State

to

promote

"equality

of

employment opportunities for all." Similarly, the Labor Code provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment. In this case, the point-of-hire classification employed by respondent school to justify the distinction in the salary rates of foreign-hires and local hires is an invalid classification. There is no reasonable distinction between the services rendered by foreign-hires and local-hires. The practice of the School of according higher salaries to foreign-hires contravenes public policy and, certainly, does not deserve the sympathy of this Court. The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. This rule applies to the School, its "international character" notwithstanding. If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. This presumption is borne by logic and human experience. If the employer pays one employee less than the rest, it is not for that employee to explain why he receives less or why the others receive more. That would be adding insult to injury. The employer has discriminated against that employee; it is for the employer to explain why the employee is treated unfairly.

Case Analysis for Critical Legal Studies Critical legal studies views the law as an instrument to redeem the people from social divisions and hierarchies. It is an advocacy of the law as a neutral and objective means of social control with emphasis on its liberating function. In the case cited, there exists a duality which is often called by the realist theorists as paired opposite. This is the classification made by the international school categorizing the members of the faculty of the International School as foreign-hires and local-hires. Dualities, such as this one, are being eradicated by the critical legal realism theorists to show how they create an ideology that furthers the interest of the ruling class. They envisioned a future in which the categories that currently divide and separate people—including sexual, racial, political, and class categories—are broken down, allowing people to share more values and to create a more harmonious society. It is only when the law is neutral and maintains its neutrality in the inevitable conflict of claims, demands, and expectations can everyone in society accept it as a means of social control and feel safe and secure from illegitimate divisions and hierarchies. Critical Legal Studies pushes the liberal premises about state and society, about freedom from dependence and governance of social relations by the will, to the point at which they merge into a larger ambition: the building of a social world less alien to a self that can always violate the generative rules of its own mental or social constructs and put other rules and other constructs

in their place. It therefore seeks to reform the law and society in such a way as to liberate and empower every individual.

Case for Policy Science In the matter of the Petition for Habeas Corpus: Laurente C. Ilagan v. Hon Juan Ponce Enrile October 21, 1985 Facts: A petition for Habeas Corpus was filed by the Integrated Bar of the Philippines and Free Legal Assistance Group on behalf of Attorneys Laurente Ilagan, Antonio Arellano, and Marcos Risonar. The three lawyers were arrested and detained in Camp Catitipan solely on the basis of a Mission Order signed by General Echavarria, Regional Unified Commander of the Ministry of National Defense. The petition for habeas corpus was then filed on the ground that the arrests were illegal and violative of the Constitution, because arrests cannot be made on the basis of Mission Orders and there appears to be a military campaign to harass lawyers who are involved in national security cases.

The respondents contended that the attorneys were arrested on the basis of a Decree issued by the President. Respondents further allege that the detained attorneys played active roles in organizing mass actions of the Communist Party of the Philippines and the National Democratic Front. The Court resolved to order the temporary release of the detained attorneys on the recognizance of the principal counsel of petitioners, namely retired Chief Justice Concepcion and retires Associate Justice J.B.L. Reyes. However, despite the Order of the Court, the detained attorneys were not released. Respondents field an Urgent Motion for Reconsideration stating that the suspension of the Writ of Habeas Corpus has the effect of ousting the Court of its jurisdiction to hear the case. Furthermore, the respondents alleged that an Information for Rebellion was filed against the detained attorneys and thus making the petition for Habeas Corpus moot and academic. Petitioners opined, saying that the detained attorneys were not given the benefit of preliminary investigation, ant that they were denied their constitutional right to due process. Issue: Whether or not the subsequent filing of an Information is a bar to a petition for Habeas Corpus. Held: Case was dismissed for having become moot and academic. Petitioners were detained by virtue of a Warrant of Arrest issued by the Regional Trial Court of Davao City in relation to the criminal case for Rebellion filed against them before said Court.

Case Analysis for Policy Science: Ilagan v. Enrile The concept of Habeas Corpus as presented in this case is the materialization of the concept of “Liberty” as a social value. The social value of “liberty” moves towards the ability of people to act or to do things which are crucial to his way of life. In the famous case of Calalang v. Williams, the Supreme Court stated that liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy and neither should authority be made to prevail over liberty because then the individual will fall into slavery. In the present case, the social value of “liberty” was apparent. Liberty means security from restraint, it is deemed to embrace the right of a man to enjoy the faculties with which he has been endowed by his creator subject only to restraints necessary for the public welfare. The Social Value of

“Liberty” may take an active or passive mode. In the case, it took an active form. The active form of “liberty” is that which may be the basis of legal claims or legal powers. The exercise of the right to Petition the Court for Habeas Corpus is an example of an active form of “liberty” based on a legal claim. But whether “liberty” is in its active or passive form, it is an area of human endeavor which the government should not encroach upon or permit undue restriction to. In the case at bar, a conflict arose between the claim of the government to national security and individual rights. The government applied

unrestricted

and

unreasonable

interference

which

may

be

detrimental to social values. The social value of “Power” was also evident in the case at bar. The first aspect of “Power” as a social value is the capacity to secure and maintain fundamental Human Rights. These rights cannot exist under a benevolent despot. In Ilagan v. Enrile, the captives were arrested under the authority of the then dictator Ferdinand Marcos. It can be gainsaid that the arbitrary authority exercised over the lawyers were unnatural and undesirable.

Florentino Joya, Juan Tahimic and Domingo Joya v. Pedro Pareja G.R. No. L-13258; November 28, 1959 Florentino Joya is the owner of a parcel of land with an area of 11 hectares (lot No. 1171), situated in Sanja Mayor, Tanza, Cavite, which had been under lease to one Maximina Bondad for 16 years. For the duration of said period, the land was tenanted and worked on for the lessee by Pedro Pareja. In April, 1954, upon termination of the lease agreement, the property was returned to the landowner, with the lessee recommending that the same be leased to Pareja. The said tenant and the landowner, however, failed to

agree on the terms under which the former could work on the lands, specifically on the matter of rental, as Joya demanded 120 cavanes as annual rental therefore. Notwithstanding such lack of understanding between them, Pareja continued on his cultivation of the property. On May 24, 1954, the tenant filed with the Court of Industrial Relations (before the creation of the Court of Agrarian Relations) Tenancy Case No. 5281-R against Florentino Joya for the purpose of securing a reduction of the rental allegedly being imposed upon him by the respondent. The landowner resisted the complaint disclaiming that Pareja had ever his tenant. Two days thereafter or on May 26, Florentino Joya leased the land to Domingo Joya at an annual rent of 120 cavanes. As the aforesaid lessee found Pareja already working on the land, the former agreed to allow him (Pareja) to continue with his cultivation on condition that they would equally share its produce after deducting the rental for the land. In view of this development, Pareja moved for the dismissal of his complaint against the landowner, then pending in the Court of Industrial Relations, on the ground that the parties therein had already reached an agreement on the matter in controversy. One year later, or on April 10, 1055, Florentino Joya renewed the lease in favor of Domingo Joya but included as co-lessee one Juan Tahimic. The rent was reduced to 105 cavanes a year. Pareja, with whom Domingo had worked during the previous year, refused to surrender the land to Tahimic. Thereupon, Florentino filed with the Justice of the Peace Court of Tanza, Cavite, a complaint for usurpation against Pareja who, consequently, was arrested and stayed in jail for a week. When finally released on Bail, Pareja filed a counter-charge with the Office of the Provincial Fiscal, against Florentino Joya, Juan Tahimic, and Domingo Joya, for alleged violation of Republic Act 1199. However, threatened to be imprisoned again or fined in the usurpation case if he did not desist and surrender the land, he withdrew his complaint manifesting that he was surrendering the property to its owner but "leaving

to the Court of Industrial Relations or Agrarian Court the determination of whatever right he may have in the said land." Thereafter, at the instance of Florentino Joya, the criminal case for usurpation was also dismissed. On January 31, 1956, Pareja filed in the Court of Agrarian Relations a complaint against Florentino Joya and Juan Tahimic for alleged violation of Republic Act 1199 (Tenancy Case No. CAR-6, Cavite), consisting of his allegedly unlawful ejectment from the land he was working on for 16 years and the appointment by Florentino Joya of his co-defendant Juan Tahimic as tenant in his (Pareja's) stead; of the landowner's filing a criminal action when he refused to vacate the property and making it a condition for its dismissal his (Pareja's) surrender of the same. And contending that he unwillingly vacated the land for fear of being again indicted in court, Pareja prayed for his reinstatement to the landholding; payment to him of his share of the crops for the agricultural year 1955-56 which he failed to receive; for damages and attorney's fees. In their answer with counterclaim, defendants Florentino and Juan denied the existence of tenancy relationship between plaintiff and defendant Florentino; and claimed that the complaint stated no cause of action and that the case had already been passed upon the competent authorities (apparently referring to the dismissal by the Court of Industrial Relations and the Provincial Fiscal's Office of the previous complaint of Pareja against the same defendants.) Domingo Joya also filed an answer in intervention praying for the recognition of his and Tahimic's superior right to work on and cultivate the land. After due hearing, the Court rendered judgment holding that upon termination of the civil lease in favor of Maximina Bondad, Pedro Pareja, the lessee's tenant, automatically became the tenant of the landowner, pursuant to Section 264 of Act 4054; that said tenant, on the other hand, in agreeing to share equally with Domingo Joya the produce of the land for the agricultural year 1954-55 in effect waived his right over an undetermined 1/2 of the landholding; that the subsequent contract of lease entered into

between the landowner and Domingo Joya and Juan Tahimic as lessees could not prejudice the right of Pareja to work on the same land and, accordingly, was declared valid only insofar as that portion given up by the latter in favor of Domingo Joya was concerned. Consequently, Pedro Pareja was ordered reinstated to 1/2 of the 11 hectare landholding, while Domingo Joya and Juan Tahimic were recognized as joint tenants over the other half. As the rental for the lease of the land was fixed at 53.75 cavanes per agricultural year after taking into consideration its nature and productivity, the court also directed Florentino Joya to return to plaintiff Pareja and intervenor Domingo Joya 21.25 cavanes of palay or their value, which were overpaid to him (the landowner) for the agricultural year 1954-55; and to Domingo Joya and Juan Tahimic 55 cavanes or their corresponding value which were overpaid to him for the year 1955-56 and 1956-57. The court, however, finding that plaintiff's failure to continue on the cultivation of the land its return to the owner could not be imputed to the latter, exonerated Florentino Joya from the charge of violation of Republic Act 1199. Not satisfied with this decision, therein defendants and intervenor filed this petition for review. Admittedly, the respondent-tenant cultivated the land for the lessee for 16 years or for the entire duration of the tenancy relationship existed between Maximina Bondad, the lessee, and Pareja, the tenant. The question now interposed in this petition is whether the tenant of a lessee retains the right to work on the land despite the termination of the lease, or said in other words, whether his being a tenant of the lessee makes him, upon the expiration of the contract, a tenant of the lessor. The question thus presented must be answered in the affirmative, not so must because of Act 4054 relied upon by the Agrarian Court, but pursuant to Section 9 of Republic Act 1199, as amended by Section 3 of Republic Act 2263, which reads in part: SEC 9. Severance of Relations. The tenancy relationship is extinguished by the voluntary surrender or abandonment of the land by, or the death or incapacity of, the tenant:

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The expiration of the period of the contract as fixed by the parties, or the sale, alienation or transfer of legal possession of the land does not of itself extinguish the relationship. In the latter case, the purchaser or transferee shall assume the rights and obligations of the former landholder in relation to the tenant. In case of death of the landholder, his heir shall likewise assume his rights and obligations. (Emphasis supplied.) It is clear from the foregoing that tenancy relationship is not extinguished by (1) the expiration of the contract(of tenancy); (2) sale; (3) alienation; or (4) transfer of legal possession of the land. In a contract of lease, the lessee, for the duration of the contract subject of the agreement.1 The return by the lessee of the property to the lessor, upon expiration of the lease contract, naturally involves again a transfer of possession from one lawful holder to another. But it may be asked, is this transfer of possession included in or comprehended by the aforequoted Section 9 of Republic Act 1199, as amended? Prior to the enactment of Republic Act 2263, amending Republic Act 1199, our tenancy legislations, while providing for the tenant's right in case of sale or alienation of the property, is silent where there is only a transfer of legal possession of the land. With amendment of the Agriculture Tenancy Act (Rep. Act 1199) on June 19, 1959, the tenure even in cases of transfer of legal possession. Petitioner-landowner, however, claims that to hold that the lessee's tenant, with whom he had no dealing whatsoever, automatically become his tenant upon the return of the property to him would constitute a restraint on his right to enter into contract and deprive him of his liberty (to contract) and property without due process of law. This same contention was raised during the deliberations of the then Senate Bill No. 119, but Congress, decided to implement its policy and objective in adopting the Agricultural Tenancy Law and passed the bill in its present form. The following is quoted from the Congressional Record:

SENATOR PRIMICIAS. On the severance of relationship of tenant and landowner, it seems that there is an intention on the part of Your Honor to amend Section 9 of the Act so as to include the transfer of legal possession of land in one or two cases which do not extinguish the relationship . . . . SENATOR PELAEZ. I would say that this afternoon, in the committee on Revision of Law, we were considering amendments to the effect that the present tenants must have the priority right, and I think we should give priority to those tenants who are there and that any transfer of lands should not affect them the least. SENATOR PRIMICIAS . . . Does Your Honor think that the landowner is not entitled to transfer the lease to another person even if the police offered is better? SENADOR PELAEZ. Under the present law, he cannot do it. SENATOR PRIMICIAS. Would that not constitute a deprivation of property without due process of law. SENATOR PELAEZ. It is deprivation of property without due process of law. It is in the present law. But we have to remember here social values and human values against material values. Precisely, the agricultural tenancy act remedied an existing evil because before the agricultural tenancy act provided for security of these poor tenants, they were pushed out of the land by the landlords . . . (Senate Congressional Record, Vol. I, No. 54, April 21,1958, p. 905-906.) It is our considered judgement, since the return by the lessee of the leased property to the lessor upon the expiration of the contract involves also a transfer of legal possssion and taking into account the manifest intent of the lawmaking body in amending the law, i.e., to provide the tenant with security of tenure in call case of transfer of legal possession, that the instant case falls within and is governed by the provisions of Section 9 of Republic Act 1199, as amended by Republic Act 2263. The termination of the lease, therefore, did not divest the tenant of the right to remain and continue on his cultivation of the land. Furthermore, should any doubt exist as to the

applicability of the aforementioned provision of law to the case at bar, such doubt must be resolved in favor of the tenant.3 Petitioner landowner likewise assails the legality of the judgment of the court a quo prescribing the rental that must be paid by the tenants, it being claimed that such question was never raised in the pleadings filed in said court. This is not exactly the case, because it must be remembered that the main reason for the refusal of the landowner to let petitioner continue in the cultivation of the landholding in 1954 was precisely the question of the rental to be paid, the tenant claiming that the 120 cavanes being asked by the landowner was excessive. This therefore, is a matter of dispute between the parties and the action taken by the Agrarian Court is sanctioned by Section 11 of Republic Act No. 1267 which provides: SEC. 11. Character of Order or Decision. In issuing an order or decision, the Court shall not be restricted to the specific relief claimed or demands made by the parties to the dispute, but may include in the order or decision any matter or determination which may be deemed necessary and expedient for the purpose of settling the dispute or of preventing further disputes, provided that said matter for determination has been established by competent evidence during the hearing. Contrary to petitioners' contention that no proof was adduced during the trial to support the lower court's finding that the entire landholding has an average annual yield of 215 cavanes, we have the testimony of Florentino Joya himself that "the land normally produces more than 300 cavanes per year" (pp. 207 & 225, Records). There is also the statement of Pareja that in 1954-55, he harvested 133 cavanes, in spite of poor crop. (p.45, Record.) Hence, we find no reason to disturb the finding of fact of the lower court. Petitioner also allege that the tenant voluntarily surrendered the property to the landowner, as evidence by an affidavit executed by Pareja on July 16, 1955 and subscribed before the Justice of the Peace of Tanza, Cavite, the translation of which reads:

I, PEDRO PAREJA, of legal age, and residing in the municipality of Tanza, Cavite, under oath state the following: That in accordance with what I have declared before the provincial Fiscal of Cavite during the investigation (July 6, 1955), I will not interfere with or continue the cultivation in the land of Mr. Florentino Joya in Balite, Tanza, Cavite, Lot No. 1171, and which I am voluntarily returning to him, nevertheless I am leaving to the C.I.R. or Agrarian Court the determination of whatever right I may have in said land. IN WITNESS WHEREOF, I hereby sign this document, in the Municipal building of Tanza, Cavite, this 16th day of July, 1955. (Sgd.) PEDRO PAREJA This statement notwithstanding, the lower court found that "petitioner's fear after his incarceration was ordered by the Justice of the Peace was such that his freedom of choice was impaired, or at least restricted. Under such circumstances, he was not acting voluntarily." This conclusion is fully supported by the record of the case. The explanation of the tenant is sufficiently borne out by the circumstances attending the execution of the document. At the time he made the statement both in the office of the Provincial Fiscal and the Justice of the Peace of Tanza (who ordered his previous arrest), petitioner Florentino against him was then pending in the justice of the peace court. The facts that immediately after the execution of the affidavit the landowner moved for the dismissal of the aforementioned criminal case corroborates Pareja's testimony that he had to do as he did out of fear of further harassment. Significantly too, it may be observed from a reading of the document that the affiant did not over the property to the owner unconditionally. On the contrary, he made a reservation of his right to secure from the property court a judicial declaration of whatever interest he may have in the land. This indeed contradicts the supposed "voluntaries" of the tenant's act in giving up the land.

With respect to the charge that a portion of the land was utilized by the tenant as a "tilapia" fish pond, we agree with the lower court that there is no evidence that it resulted in material injury to the land (Sec. 51, Rep. Act 1199). The uncontradicted testimony is that the fishpond was made on requirement of the Bureau of Agricultural Extension that every farmer in the vicinity should have a small fishpond, and that this particular fishpond was on the portion ("balot") not used for planting rice (pp. 81-82, Record.) Wherefore, finding no reason to review the decision appealed from, the same is hereby affirmed, with costs against petitioner Florentino Joya. So ordered.

Case Analysis for Policy Science Joya v. Pareha The policy science jurisprudence is an advocacy of the social value. In this advocacy, the policy science school deplores the failure of the ontological schools, for all their legal craftsmanship, in supplying the empirical basis for the legal ordering of the society, especially in the solution

of problems involving the relation of the individual to the state and the conflict between individual rights and national security. In this advocacy, the policy science school also underscores the thesis that if legal philosophy is to succeed in providing norms for the criticism or evaluation of the rules of positive law, whether national or international, it must take into account the social values. In the instant case, the enactment of the Agricultural Tenancy Law upholds the social value and human value against material value remedied an existing evil because before the agricultural tenancy act provided for security of these poor tenants, they were pushed out of the land by the landlords.

Case for Scandinavian Legal Realism Primitivo Ansay et al, v. The Board of Directors of the Natioanal Development et al.

G.R. No. L-13667 April 29, 1960 Paras, C. J.: On July 25, 1956, appellants filed against appellees in the Court of First Instance of Manila a complaint praying for a 20% Christmas bonus for the years 1954 and 1955. The court a quo on appellees' motion to dismiss, issued the following order: Considering the motion to dismiss filed on 15 August, 1956, set for this morning; considering that at the hearing thereof, only respondents appeared thru counsel and there was no appearance for the plaintiffs although the court waited for sometime for them; considering, however, that petitioners have submitted an opposition which the court will consider together with the arguments presented

by

respondents

and the Exhibits

marked

and

presented, namely, Exhibits 1 to 5, at the hearing of the motion to dismiss; considering that the action in brief is one to compel respondents to declare a Christmas bonus for petitioners workers in the National Development Company; considering that the Court does not see how petitioners may have a cause of action to secure such bonus because: (a) A bonus is an act of liberality and the court takes it that it is not within its judicial powers to command respondents to be liberal; (b) Petitioners admit that respondents are not under legal duty to give such bonus but that they had only ask that such bonus be given to them because it is a moral obligation of respondents to give that but as this Court understands, it has no power to compel a party to comply with a moral obligation (Art. 142, New Civil Code.). IN VIEW WHEREOF, dismissed. No pronouncement as to costs. A motion for reconsideration of the afore-quoted order was denied. Hence this appeal. Appellants contend that there exists a cause of action in their complaint because their claim rests on moral grounds or what in brief is defined by law as a natural obligation.

Since appellants admit that appellees are not under legal obligation to give such claimed bonus; that the grant arises only from a moral obligation or the natural obligation that they discussed in their brief, this Court feels it urgent to reproduce at this point, the definition and meaning of natural obligation. Article 1423 of the New Civil Code classifies obligations into civil or natural. "Civil obligations are a right of action to compel their performance. Natural obligations, not being based on positive law but on equity and natural law, do not grant a right of action to enforce their performance, but after voluntary fulfillment by the obligor, they authorize the retention of what has been delivered or rendered by reason thereof". It is thus readily seen that an element of natural obligation before it can be cognizable by the court is voluntary fulfillment by the obligor. Certainly retention can be ordered but only after there has been voluntary performance. But here there has been no voluntary performance. In fact, the court cannot order the performance. At this point, we would like to reiterate what we said in the case of Philippine Education Co. vs. CIR and the Union of Philippine Education Co., Employees (NUL) (92 Phil., 381; 48 Off. Gaz., 5278) xxx

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From the legal point of view a bonus is not a demandable and enforceable obligation. It is so when it is made a part of the wage or salary compensation. And while it is true that the subsequent case of H. E. Heacock vs. National Labor Union, et al., 95 Phil., 553; 50 Off. Gaz., 4253, we stated that: Even if a bonus is not demandable for not forming part of the wage, salary or compensation of an employee, the same may nevertheless, be granted on equitable consideration as when it was given in the past, though withheld in succeeding two years from low salaried employees due to salary increases.

still the facts in said Heacock case are not the same as in the instant one, and hence the ruling applied in said case cannot be considered in the present action. Premises considered, the order appealed from is hereby affirmed, without pronouncement as to costs.

Case Analysis for Scandinavian Legal Realism The Scandinavian legal realists believe that legal ideology has no place in the conception of the law and its component jural relations. Characterizing statutes as just or unjust whether the evaluation is in terms of the natural law or the will of the supreme political superior is meaningless. The reason behind is that the interpreter is only expressing a personal preference or statement that he or she likes or dislikes a particular statute or rule without any conscious reference to any known quality of the statute or rule. They believe that the legal ordering of society is based on the feeling for justice prevalent and current within the society. It is this feeling for societal good that gives substance and meaning to the legal ordering of society. To them, the law is the means of regulating human behavior based on the feeling for what is best for the social welfare. Therefore, its binding force is no longer on the illusory idea of the consent of the governed. For the Scandinavian legal realist, the conventional concepts of “right” and “obligation” are verbal magic. It is pointed out that this is word magic for there can be rights and obligations even without legal rules and sanctions. In the case cited, the Board of Directors of the National Development Company, in performing the obligation of paying the Christmas bonus, feels that in

good conscience should comply with the undertaking which is based on moral grounds.