In Re Shoop Digest

August 25, 2017 | Author: Deborah Stewart | Category: Precedent, Common Law, Jurisprudence, Comity, Case Law
Share Embed Donate

Short Description

Legal research, digest, law...


+IN RE SHOOP MALCOLM; November 29, 1920 Points to consider: 1. Difference between Civil Law and Common Law 2. Distinguish strains of common law: What are the bases? 3. How did the Court arrive at the conclusion that there is AngloAmerican tradition? 4. What system is in place? 5. References to American jurisprudence 6. Laws superseded or modified 7. Identify what is that important question the Court needed to resolve and how it helped solve the Shoop case. FACTS - Max Shoop is applying for admission to practice law in the Philippines under Par. 4 of the Rules for the Examination of Candidates for Admission to the Practice of Law. It was shown in his application that he was practicing for more than 5 years in the highest court of the State of New York. - The said rule requires that: New York State by comity confers the privilege of admission without examination under similar circumstances to attorneys admitted to practice in the Philippine Islands. (Aside from comity, the satisfactory affidavits of applicants must show they have practiced at least 5 years in any (district or circuit or highest) court of the US or territory of it. But admission is still in the discretion of the court.) - The rule of New York court, on the other hand, permits admission without examination in the discretion of the Appellate Division in several cases: 1. Provided that the applicant also practiced 5 years as a member of the bar in the highest law court in any other state or territory of the American Union or in the District of Columbia 2. The applicant practiced 5 years in another country whose jurisprudence is based on the principles of the English Common Law (ECL). ISSUE WON under the New York rule as it exists the principle of comity is established HELD - The Philippines is an UNORGANIZED TERRITORY of the US, under a civil gov't. established by the Congress. - In interpreting and applying the bulk of the written laws of this jurisdiction, and in rendering its decisions in cases NOT covered by the letter of the written law, this court relies upon the theories and precedents of Anglo-American cases, subject to the limited exception of those instances where the remnants of the Spanish written law present well-defined civil law theories and of the few cases where such precedents are inconsistent with local customs and institutions. - The jurisprudence of this jurisdiction is based upon the ECL in its present day form of Anglo-American Common Law to an almost exclusive extent.

- New York permits conferring privileges on attorneys admitted to practice in the Phils. similar to those privileges accorded by the rule of this court. - Petition granted. Decision is based on the interpretation of the NY rule; doesn’t establish a precedent with respect to future applications. Reasoning On TERRITORY: a. Comity would exist if we are a territory of the US b. We are NOT an organized territory incorporated into the United States but c. We are NOT a "foreign country" or "another country" either d. Like Puerto Rico, we may not be incorporated but we are a territory since the US Congress legislates for us and we have been granted a form of territorial government, so to that extent we are a territory according to the US Atty. Gen. e. It is not believed that the New York court intended the word "territory" to be limited to the technical meaning of organized territory or it would have used the more accurate expression. f. Therefore, We have a basis of comity to satisfy the first requirement since the full phraseology indicates a SWEEPING INTENTION to include ALL of the territory of the US. On COMMON LAW jurisdiction: (On what principle/s is the present day jurisprudence based?) g. In most of the States, including New York, codification and statute law have come to be a very large proportion of the law of the jurisdiction, the remaining proportion being a system of case law which has its roots, to a large but not exclusive degree, in the old English cases. h. In speaking of a jurisprudence "based on the English Common Law" it would seem proper to say that the jurisprudence of a particular jurisdiction Is based upon the principles of that Common Law if its statute law and its case law to a very large extent includes the science and application of law as laid down by the old English cases, as perpetuated and modified by the American cases. i. Common Law adopted by decision: i. In the US, the ECL is blended with American codification and remnants of the Spanish and French Civil Codes. There a legal metamorphosis has occurred similar to that which is transpiring in this jurisdiction today. ii. New York uses the phrase "based on the English Common Law" in a general sense iii. And that such Common Law may become the basis of the jurisprudence of the courts where practical considerations and the effect of sovereignty gives round for such a decision. iv. If in the Philippines, ECL principles as embodied in AngloAmerican jurisprudence are used and applied by the courts to the extent that Common Law principles are NOT in conflict with the LOCAL WRITTEN laws, customs, and institutions as modified by the change of sovereignty and subsequent legislation, and there is NO OTHER FOREIGN case law system used to any substantial extent, THEN it is proper to say in the sense of the New York rule that the "jurisprudence" of the Philippines is based on the ECL.

j. IN THE PHILIPPINE ISLANDS: i. The extent of the English or Anglo-Am Common Law here has not been definitely decided by the SC. But there is a similarity to the quotations from the American decisions cited with reference to the ECL. ii. Alzua & Arnalot vs. Johnson: we apply Anglo-Am jurisprudence only in "xxx…so far as they are founded on sound principles applicable to local conditions, and are not in conflict with existing law; nevertheless, many of the rules, principles, and doctrines of the Common Law have, to all intents and purposes, been IMPORTED into this jurisdiction, a RESULT of the enactment of new laws and the organization of new institutions by the Congress of the US…xxx" iii. The Spanish judicial system was abrogated replaced with a new one modeled after the judicial systems of the US. Therefore, those Spanish doctrines and principles in conflict with the new one were abrogated. iv. US. v. De Guzman: For proper construction and application of the terms and provisions we borrowed from or modeled upon Anglo-Am precedents, we review the legislative history of such enactments. v. US. v. Abiog and Abiog: The courts are constantly guided by the doctrines of Common Law. Neither ECL or American Common Law is in force in this Islands…save only in so far as they are founded on sound principles applicable to local conditions and aren't in conflict with existing law." vi. What we have is a PHILIPPINE COMMON LAW influenced by the ECL or American Common Law. vii. A great preponderance of the jurisprudence of our jurisdiction is based upon Anglo- American case law precedents-exclusively in applying those statutory laws which have been enacted since the change of sovereignty and which conform more or less to the American statutes, and-to a large extent in applying and expanding the remnants of the Spanish codes and written laws. k. PHILIPPINE STATUTE LAW i. The chief codes of Spain that were extended to us were as follows: Penal Code, Code of Commerce, Ley Provisional, Code of Criminal Procedure, and Code of Civil Procedure, Civil Code, Marriage Law, Mortgage Law, Railway laws, Law of Waters. ii. There were also special laws having limited application. iii. The foregoing written laws had acquired the force of statute law by change of sovereignty. iv. There was no properly called Case Law of Spain since Spanish jurisprudence does not recognize the principle of Stare Decisis. 1. Manresa' s discussion of Art. 6 of the Civil shows how far from a case law system is jurisprudence. Spanish courts are governed by: a. 1st, by written law b. 2nd, by the customs of the place (derives its force because it is the acknowledged manner on how things are done and not jurisprudence) c. 3rd, by judicial decision (when in practice, these were considered last; the development of case law was impeded because the courts were free to disregard any information or decisions of other courts.)

d. 4th, by general principles of law l. SPANISH STATUTE LAW i. All portions of political law were abrogated immediately with the change of sovereignty ii. All Spanish laws, customs, and rights of property inconsistent with the Constitution and American principles and institutions were superseded. iii. It was as if Congress had enacted new laws for the Philippines modeled upon those same Spanish statutes. m. CASES UNDER AMERICAN DERIVED STATUTES i. It appears that the bulk of present day Statute Law is derivative from Anglo-American sources; derivative in a sense of having been COPIED, and in the sense of having been enacted by Congress or by virtue of its authority. ii. In all of the cases, Anglo-American decisions and authorities are used and relied upon to a greater or less degree. Although in many cases, the use is by way of dictum, nevertheless, the net result is the building up of a very substantial elaboration of Anglo-American case law. n. CASES UNDER SPANISH STATUTES i. We use Anglo-Am cases in interpreting and applying the remnants of the Spanish statutes thus showing how permanent the hold of the Anglo-Am Common Law has on our jurisprudence. ii. Anglo-Am case law plays a very great part in amplifying the law on those subjects, which are still governed by the remaining portions of the Spanish statutes, as exhibited in the groups of cases cited in the footnotes. iii. Anglo-Am case law has entered practically every field of law and in the large majority of such subjects has formed the sole basis for the guidance of the Court in developing jurisprudence. iv. The result is that we've developed a Phil. Common Law which is based almost exclusively, except in cases where conflicting with local customs and institutions, upon AngloAm Common Law. o. COLLATERAL INFLUENCES i. There are no digests of Spanish decisions to aid the study of Bench and Bar vs. The abundance of digests/reports/textbooks on English/Am. courts. ii. There is a prolific use of Anglo-Am authorities in the decisions of the court, plus, the available sources for study and reference on legal theories are mostly Anglo-Am iii. Therefore, there has been developed and will continue a common law in our jurisprudence (i.e. Phil Common Law) based upon the ECL in its present day form of an Anglo-Am CL, which is effective in all of the subjects of law in this jurisdiction, in so far as it does not conflict with the express language of the written law (where the remnants of the Spanish written law present well-defined civil law theories) or with the local customs and institution.

View more...


Copyright ©2017 KUPDF Inc.